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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-K/A
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934 [NO FEE REQUIRED EFFECTIVE OCTOBER 7, 1996] For the fiscal
year ended December 31, 1998
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 [NO FEE REQUIRED] For the transition period from
_______________ to _______________
Commission File Number 1-12244
NEW PLAN EXCEL REALTY TRUST, INC.
(Exact Name of Registrant as Specified in Its Charter)
MARYLAND 33-0160389
(State of Incorporation) (I.R.S. Employer
Identification No.)
1120 AVENUE OF THE AMERICAS
NEW YORK, NY 10036 (212) 869-3000
(Address of Principal Executive Offices) (Registrant's Telephone Number)
Securities registered pursuant to Section 12(b) of the Act:
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Common Stock, $0.01 par value per share New York Stock Exchange
Series A Cumulative Convertible Preferred Stock New York Stock Exchange
Series B Cumulative Redeemable Preferred Stock New York Stock Exchange
Series D Cumulative Voting Step-Up Premium Rate Preferred Stock New York Stock Exchange
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Securities registered pursuant to Section 12(g) of the Act: NONE
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months, and (2) has been subject to such filing requirements
for the past 90 days.
YES [X] NO [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [ ]
The aggregate market value of the Registrant's shares of common stock held by
non-affiliates was approximately $1,664,000,000 as of March 26, 1998, based on
the closing price of $19.5625 on the NYSE on that date.
As of March 26, 1999, the number of shares of common stock of the Registrant
outstanding was 88,936,480.
Documents incorporated by reference: Portions of the Proxy Statement for the
1999 Annual Meeting of Stockholders of the Registrant to be filed subsequently
with the SEC are incorporated by reference into Part III of this report.
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TABLE OF CONTENTS
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Page
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PART I............................................................................................................1
Item 1. Business...............................................................................................2
Item 2. Properties............................................................................................18
Item 3. Legal Proceedings.....................................................................................19
Item 4. Submission of Matters to a Vote of Security Holders...................................................19
PART II..........................................................................................................19
Item 5. Market for Registrant's Common Equity and Related Stockholder Matters.................................19
Item 6. Selected Financial Data...............................................................................19
Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations.................21
Item 7A. Quantitative and Qualitative Disclosures About Market Risk...........................................30
Item 8. Financial Statements and Supplementary Data..........................................................30
Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure..................30
PART III.........................................................................................................31
Item 10. Directors and Executive Officers of the Registrant...................................................31
Item 11. Executive Compensation...............................................................................31
Item 12. Security Ownership of Certain Beneficial Owners and Management.......................................31
Item 13. Certain Relationships and Related Transactions.......................................................31
PART IV..........................................................................................................32
Item 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K......................................32
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PART I
References herein to this "Annual Report on Form 10-K" and this "Form
10-K" should be read as this "Annual Report on Form 10-K/A" and this "Form
10-K/A," respectively.
FORWARD-LOOKING STATEMENTS
This Annual Report on Form 10-K, together with other statements and
information publicly disseminated by New Plan Excel Realty Trust, Inc. (the
"Registrant" or the "Company"), contains certain forward-looking statements
within the meaning of Section 27A of the Securities Act of 1933, and Section 21E
of the Securities Exchange Act of 1934. Such statements are based on assumptions
and expectations which may not be realized and are inherently subject to risks,
uncertainties and other factors, many of which cannot be predicted with accuracy
and some of which might not even be anticipated. Future events and actual
results, performance or achievements, financial and otherwise, may differ
materially from the results, performance or achievements expressed or implied by
the forward-looking statements. Risks, uncertainties and other factors that
might cause such differences, some of which could be material, include, but are
not limited to: national and local economic, business and real estate and other
market conditions; financing risks, such as the inability to obtain debt or
equity financing on favorable terms; potential adverse effects of the Merger (as
defined below), such as the inability to successfully integrate two previously
separate companies; the level and volatility of interest rates; financial
stability of tenants; the rate of revenue increases versus expense increases;
governmental approvals, actions and initiatives; environmental/safety
requirements; risks of real estate acquisition and development (including the
failure of pending acquisitions to close and pending developments to be
completed on time and within budget); the ability of the Company and others with
which it does business or receives services (including utilities, financial
institutions, major tenants, suppliers, governmental agencies and
municipalities) to address the Year 2000 issue, and the costs of doing so; as
well as other risks listed from time to time in this Annual Report on Form 10-K
and in the other reports filed by the Company with the SEC or otherwise publicly
disseminated by the Company.
EXPLANATORY NOTE
On September 28, 1998, Excel Realty Trust, Inc. ("Excel") and New Plan
Realty Trust (the "Trust") consummated a merger whereby a wholly owned
subsidiary of Excel was merged with and into the Trust with the Trust surviving
as a wholly owned subsidiary of Excel (the "Merger"). As a result of the Merger,
the shareholders of the Trust immediately prior to the Merger owned
approximately 65% of the Company's common stock outstanding immediately
following the Merger. In connection with the Merger, Excel changed its name to
"New Plan Excel Realty Trust, Inc." See "Business--Recent Developments--The
Merger."
Under generally accepted accounting principles, the Merger was
accounted for as a purchase by the Trust of Excel. Therefore, all of the
financial statements and related disclosures prior to September 28, 1998 are
that of the Trust. Because the Trust had a fiscal year end of July 31 prior to
the Merger, all of the financial statements and related disclosures contained in
this Form 10-K for periods prior to September 28, 1998 are based on a fiscal
year end of July 31.
All of the financial statements and related disclosures contained in
this Form 10-K for periods on and after September 28, 1998 relate to the Company
as a combined entity. Immediately following the Merger, each of the Company and
the Trust adopted a fiscal year end of December 31, beginning with a short
fiscal year ending on December 31, 1998.
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ITEM 1. BUSINESS
GENERAL
The Company, a self-administered and self-managed equity real estate
investment trust ("REIT"), is a Maryland corporation and one of the nation's
largest community and neighborhood shopping center companies. As of December 31,
1998, the Company owned interests in 301 retail properties (including four
office properties and two vacant land parcels) containing over 37.4 million
square feet of gross leasable area in 31 states. The Company also owned, as of
that date, 54 apartment communities containing approximately 13,000 units in 14
states.
Excel was incorporated in 1985 and subsequently reincorporated as a
Maryland corporation. The Trust was organized in 1972 as a Massachusetts
business trust.
The Company elected to be taxed as a REIT for federal income tax
purposes, beginning with its taxable year ended December 31, 1987, and believes
that, beginning with that taxable year, it has been organized and has operated
in conformity with the requirements for qualification as a REIT under the
Internal Revenue Code of 1986. Although the Company believes that it will
continue to operate in such a manner, no assurance can be given that the Company
will continue to qualify as a REIT. In order to maintain its qualification as a
REIT, among other things, the Company must distribute to its stockholders each
year at least 95% of its REIT taxable income and meet certain tests regarding
the nature of its income and assets. As a REIT, the Company is not subject to
federal income tax with respect to that portion of its income which meets
certain criteria and is distributed annually to the stockholders. Additionally,
to facilitate maintenance of the Company's REIT qualification and for other
strategic reasons, the Company's charter generally prohibits any person from
acquiring or holding shares of the Company's preferred and common stock in
excess of 9.8% (by value or by number of shares, whichever is more restrictive)
of the outstanding shares of each class or series of stock of the Company,
subject to certain exceptions.
DESCRIPTION OF BUSINESS
As of December 31, 1998, the Company owned interests in 301 retail
properties (including four office properties and two vacant land parcels)
containing over 37.4 million square feet of gross leasable area in 31 states.
The Company also owned, as of that date, 54 apartment communities containing
approximately 13,000 units in 14 states. The average occupancy rates as of
December 31, 1998 for the retail properties (including four office properties
and two vacant land parcels) and the apartment communities were 93.2% and 90.1%,
respectively.
The Company maintains its principal executive offices at 1120 Avenue of
the Americas, New York, New York 10036, where its telephone number is (212)
869-3000. The Company has operational headquarters both at its New York offices
and at 16955 Via Del Campo, San Diego, California 92127, where its telephone
number is (619) 485-9400.
Strategy and Philosophy
The following is a brief discussion of the Company's current strategies
and policies concerning acquisitions, management, dispositions, investments,
finances and operations. The Company may however, from time to time, alter or
change one or more of these strategies or its policies in these areas.
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The Company's primary objective is to acquire, own and manage a
portfolio of commercial retail properties and apartment communities that will
provide cash for quarterly distributions to stockholders while protecting
investor capital and providing potential for capital appreciation. The Company
seeks to achieve this objective by (i) aggressively managing and, where
appropriate, redeveloping its existing operating properties, (ii) continuing to
acquire well-located neighborhood and community shopping centers and other
retail properties with tenants that have a national or regional presence and an
established credit quality, and well-located income-producing apartment
communities at a discount to replacement cost, (iii) disposing of mature
properties to continually update its core property portfolio, and (iv)
continuing to maintain a strong and flexible financial position to facilitate
growth.
Aggressive Management
The Company aggressively manages its retail properties, with an
emphasis on maintaining high occupancy rates and a strong base of nationally
recognized anchor tenants. The Company regularly monitors the physical condition
of its retail properties and the financial condition of its retail tenants. The
Company follows a schedule of regular physical maintenance at its retail
properties with a view toward tenant expansion, renovations and refurbishing to
preserve and increase the value of these properties. The Company currently is
upgrading existing facades, updating signage, resurfacing parking lots and
improving parking lot and exterior building lighting at certain of its retail
properties. In addition, the Company believes that average rents from its
apartment portfolio are below market and can be increased with a focus on
renovation and refurbishment.
The Company has field offices throughout the country, each of which is
responsible for managing the leasing, property management and maintenance of the
Company's properties in its region. The Company also has an office in Salt Lake
City, Utah whose efforts are dedicated solely to renovations, acquisitions and
dispositions of the Company's properties. The Company seeks to increase the cash
flow and portfolio value of its existing properties primarily through
contractual rent increases during the terms of its leases, reletting of existing
space at higher rents, expansion of existing properties and the minimization of
overhead and operating costs.
Acquisition of Properties
General. The Company intends to continue its portfolio focus on retail
properties and apartment communities that generate stable cash flows and present
the opportunity for appreciation. The Company seeks to expand its portfolio by
acquiring (i) well-located neighborhood and community shopping centers and other
retail properties with tenants that have a national or regional presence and an
established credit quality, and that the Company believes will have the ability
to make timely lease payments over the term of the lease, and (ii) well-located
income-producing apartment communities at a discount to replacement cost. When
acquiring properties, the Company focuses on the quality of the location and
comparable market rents. Additionally, the Company intends to continue to
evaluate its mix of property types and may purchase from time to time other
property types that the Company believes will meet its objectives.
Acquisitions through Partnerships. The Company may from time to time
enter into joint venture partnership arrangements with third parties for the
acquisition and management of properties. The Company also may acquire
properties from unaffiliated property owners in exchange for units of limited
partnership interest in a partnership that the Company controls. These
partnership units generally are exchangeable for shares of the Company's common
stock or the cash
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equivalent thereof under certain circumstances. The Company believes that this
acquisition method may permit the Company to acquire properties at attractive
prices from property owners wishing to enter into tax-deferred transactions. The
Company formed Excel Realty Partners, L.P., a Delaware limited partnership in
which the Company is the sole general partner ("ERP"), to facilitate these
transactions.
Development through Joint Venture Financing. The Company may from time
to time finance properties under development, generally where the developer
previously has (i) obtained all entitlements required to complete the
development and (ii) identified principal tenant(s) that will occupy the
property. Under this financing method, the Company typically either purchases
the undeveloped property and leases the property back to the developer or makes
a subordinated loan to the developer. Upon completion of the project, the
Company generally has the option to purchase the property. The Company believes
that this method of financing gives the Company opportunities to purchase
developed properties and property portfolios at capitalization rates slightly
higher than those which might otherwise be available after completion of
development. Certain of these transactions have been and will be completed
through the Company's development affiliate, ERT Development Corporation, a
Delaware corporation ("EDV").
Acquisitions of Real Estate Companies/Portfolios. The Company may
acquire various public and private real estate companies and real estate
portfolios in an effort to position itself as an industry consolidator. The
Company's strategy is to capitalize on the benefits of size, market
capitalization, liquidity and financial strength that can be gained from
consolidation.
Disposition of Properties
The Company continually analyzes each asset in its portfolio and
identifies those properties which can be sold or exchanged (to the extent
consistent with REIT qualification requirements) for optimal sales prices or
exchange values given prevailing market conditions and the particular
characteristics of each property. Through this strategy, the Company seeks to
continually update its core property portfolio by disposing of properties which
have limited growth potential and redeploying capital into newer properties or
properties where the Company's aggressive management techniques may maximize
property values. The Company may engage from time to time in like-kind property
exchanges which allow the Company to dispose of properties and redeploy proceeds
in a tax efficient manner.
The Company holds its properties for investment and the production of
rental income and not for sale to customers or other buyers in the ordinary
course of the Company's business. If the Company were treated as holding
properties for sale to customers in the ordinary course of its business, tax
rules applicable to REITs would subject the Company to tax equal to 100% of its
gain from each property sold.
Financing Strategy
The Company intends to finance future acquisitions with the most
advantageous sources of capital available to the Company at the time, which may
include the sale of common stock, preferred stock or debt securities through
public offerings or private placements, the incurrence of additional
indebtedness through secured or unsecured borrowings, and the reinvestment of
proceeds from the disposition of assets. The Company also may enter into joint
ventures with institutions to acquire large properties. In these instances, the
Company generally receives property management and leasing fees in addition to a
disproportionate share of the profits after a preferred return is received by
the institutional partner. The Company's financing strategy is to maintain a
strong and flexible financial position by (i) maintaining a prudent level of
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leverage, (ii) maintaining a large pool of unencumbered properties, (iii)
managing its exposure to interest rate risk represented by its floating rate
debt, (iv) where possible, amortizing existing non-recourse mortgage debt
secured by specific properties over the term of the leases with anchor tenants
at such mortgaged properties, and (v) maintaining a conservative distribution
payout ratio.
Environmental Conditions
Under various federal, state and local laws, ordinances and
regulations, the Company may be considered an owner or operator of real property
or may have arranged for the disposal or treatment of hazardous or toxic
substances and, therefore, may become liable for the costs of removal or
remediation of certain hazardous substances released on or in its property or
disposed of by it, as well as certain other potential costs which could relate
to hazardous or toxic substances (including governmental fines and injuries to
persons and property). Such liability may be imposed whether or not the Company
knew of, or was responsible for, the presence of such hazardous or toxic
substances. Except as discussed below, the Company is not aware of any
significant environmental condition at any of its properties.
Soil and groundwater contamination exists at certain of the Company's
properties. The primary contaminants of concern at these properties include
perchloroethylene and trichloroethyleme (associated with the operations of
on-site dry cleaners), petroleum hydrocarbons (associated with the operations of
on-site auto repair facilities) and methyl tertiary butyl ether (from unknown
sources). The Company currently estimates that the total cost of remediation of
environmental conditions at these properties will be in the range of
approximately $2.8 million to $6.5 million, although there can be no assurance
that this range of estimates will prove accurate. In connection with certain of
these properties, the Company has entered into remediation and indemnity
agreements, which obligate the prior owners of the properties (including in some
cases, principals of the prior owners) to perform the remediation and to
indemnify the Company for any losses the Company may suffer because of the
contamination or remediation. There can be no assurance, however, that the prior
owners will perform their obligations under these agreements, although in
certain cases prior owners have set aside funds in escrow with respect to their
performance under these agreements. In connection with certain other properties,
the former tenants at the properties are in the process of performing the
necessary remediation, although there can be no assurance that such remediation
will be satisfactory. In connection with certain additional properties, the
Company has assumed the obligation to perform the necessary remediation in
connection with the Company's purchase of the properties. In addition to the
environmental conditions discussed above, asbestos minerals (associated with
spray-applied fireproofing materials) exist at certain of the Company's
properties. The Company currently estimates that the total cost of remediation
of asbestos minerals at these properties will be approximately $4 million,
although there can be no assurance that this estimate will prove accurate. The
Company does not expect the environmental conditions at its properties,
considered as a whole, to have a material adverse effect on the Company.
The Company seeks to protect itself from environmental liabilities
associated with properties it acquires in a number of ways. As part of its
internal due diligence process, the Company undertakes environmental site
assessments prior to purchasing a property. The Company generally will not
purchase a property if these assessments reveal potential environmental
liabilities. The Company may, however, evaluate the risks and attempt to
quantify the potential costs associated with such liabilities, and then make a
determination of whether to acquire the property. If the Company chooses to
acquire the property, it will typically require the prospective seller/tenant to
agree to remediate any environmental problems and it may obtain a letter of
credit or other security to provide adequate assurance to the Company that
sufficient funds
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will be available to complete the work. Alternatively, the Company may negotiate
a purchase price reduction that considers the estimated cost of remediation. The
Company will continue to obtain environmental reports on all properties it seeks
to acquire. Moreover, to protect itself against environmental liabilities that
were not discovered during its pre-purchase investigations as well as those that
were disclosed, the Company, in the purchase agreement and/or lease, will
typically require the seller/tenant to indemnify the Company against any and all
environmental liabilities arising from the property acquired.
No assurance can be given that any environmental studies performed at
the Company's properties will identify all material environmental conditions,
that any prior owner of the properties did not create a material environmental
condition not known to the Company or that a material environmental condition
does not otherwise exist with respect to any of the Company's properties.
RECENT DEVELOPMENTS
The Merger
On September 28, 1998, Excel and the Trust consummated the Merger
pursuant to an Agreement and Plan of Merger dated as of May 14, 1998, as amended
as of August 7, 1998 (the "Merger Agreement"), whereby ERT Merger Sub, Inc., a
wholly owned subsidiary of Excel, was merged with and into the Trust with the
Trust surviving as a wholly owned subsidiary of Excel. The Merger was approved
by the stockholders of Excel and the shareholders of the Trust at special
meetings held on September 25, 1998. In connection with the consummation of the
Merger, Excel changed its name to "New Plan Excel Realty Trust, Inc."
As provided in the Merger Agreement, Excel paid a 20% stock dividend
prior to the Merger. In connection with the Merger, each share of beneficial
interest of the Trust was converted into one share of common stock, par value
$.01 per share, of the Company, and each 7.8% Series A Cumulative Step-Up
Premium Rate Preferred Share, par value $1.00 per share, of the Trust was
converted into one share of 7.8% Series D Cumulative Voting Step-Up Premium Rate
Preferred Stock, par value $.01 per share, of the Company ("Series D Preferred
Stock"). The Company issued an aggregate of approximately 60,000,000 shares of
common stock and 150,000 shares of Series D Preferred Stock (represented by
1,500,000 depositary shares, each of which represents a one-tenth fractional
interest in a share of Series D Preferred Stock) to the Trust's shareholders in
the Merger. As a result of the Merger, the shareholders of the Trust immediately
prior to the Merger owned approximately 65% of the Company's common stock
outstanding immediately following the Merger. The Company's common stock is
listed for trading on the New York Stock Exchange under the symbol "NXL."
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As further provided in the Merger Agreement, since September 28, 1998,
the Board of Directors of the Company has consisted of the six former members of
Excel's Board and the nine former members of the Trust's Board. As of March 26,
1999, the senior management of the Company was as follows:
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William Newman Chairman of the Board
Arnold Laubich Chief Executive Officer
Gary B. Sabin President
James M. Steuterman Executive Vice President and Co-Chief Operating Officer
Richard B. Muir Executive Vice President and Co-Chief Operating Officer
Jeffrey D. Egertson Senior Vice President and Chief Financial Officer
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The Company intends and expects that Mr. Laubich will eventually
succeed Mr. Newman as Chairman of the Board of the Company, at such time as Mr.
Newman is no longer serving in such capacity, and that Mr. Sabin will eventually
succeed Mr. Laubich as Chief Executive Officer of the Company, at such time as
Mr. Laubich is no longer serving in such capacity.
Medium-Term Notes Program
On February 3, 1999, the Company established a program for the sale of
up to $500 million aggregate principal amount of medium-term notes due nine
months or more from date of issue. The Trust will guarantee any medium-term
notes issued by the Company in the future under this program.
Legacy Spin-Off
On March 31, 1998, Excel consummated a spin-off (the "Spin-off") of
Excel Legacy Corporation ("Legacy") through the distribution, on a pro-rata
basis, to the holders of record of Excel's common stock on March 2, 1998 of all
of the common stock of Legacy held by Excel. Legacy was organized to create and
realize value by identifying and making opportunistic real estate investments
which are not restricted by REIT tax laws or influenced by Excel's objectives of
increasing cash flows and maintaining certain leverage ratios. Prior to the
Spin-off, Excel transferred to Legacy ten single tenant properties owned by
Excel with a December 31, 1997 book value of approximately $46.2 million and a
property under development with a book value of approximately $14.7 million, in
exchange for a sufficient number of shares of Legacy common stock to effect the
Spin-off, a note payable from Legacy to Excel in the amount of approximately
$20.6 million, and the assumption by Legacy of indebtedness on the properties in
the amount of approximately $34.2 million. Prior to the Spin-off, EDV
transferred to Legacy four notes receivable, a leasehold interest in a parcel of
land, an office building and a single tenant property, in exchange for the
cancellation by Excel of approximately $33.3 million of EDV's indebtedness to
Excel.
The Company and Legacy currently are parties to agreements providing
for: (i) the orderly separation of the Company and Legacy; (ii) the sharing of
certain facilities and the provision of management and administrative services
by the Company to Legacy; and (iii) the allocation of certain tax and other
liabilities.
Under an agreement executed in connection with the Spin-off, Legacy has
agreed not to make investments that involve neighborhood and community shopping
centers, power centers, malls or other conventional retail properties, unless it
has first offered to Excel (now to the Company) the opportunity to pursue such
investments. This agreement expressly permits Legacy to make investments that
involve office
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and industrial properties, single tenant retail properties,
entertainment/retail/mixed-use development projects, real estate mortgages, real
estate derivatives, or, subject to certain limitations, entities that invest
primarily in or have a substantial portion of their assets in such real estate
assets, in each case without first offering to the Company the opportunity to
pursue such investment. Under this agreement, the Company and Legacy also will
notify each other of, and make available to each other, investment opportunities
which they develop or of which they become aware but are unable or unwilling to
pursue. The term of this agreement will terminate upon the earlier of March 31,
2008 or a "change in control" of either the Company or Legacy.
COMPETITION
The success of the Company depends upon, among other factors, the
trends of the economy, including interest rates, income tax laws, increases or
decreases in operating expenses, governmental regulations and legislation,
including environmental requirements, real estate fluctuations, retailing
trends, population trends, zoning laws, the financial condition and stability of
tenants, the availability of financing and capital on satisfactory terms, the
ability of the Company to compete with others for tenants and keep its
properties leased at profitable levels and construction costs. The Company
competes for acquisitions of, and investments in, properties and real estate
companies with an indeterminate number of investors, including domestic and
foreign corporations and financial institutions, other real estate investment
trusts, life insurance companies, pension funds and trust funds.
Adverse changes in general or local economic conditions could result in
the inability of some existing tenants of the Company to meet their lease
obligations and could otherwise adversely affect the Company's ability to
attract or retain tenants. Management believes, however, that the Company's
financial strength and operating practices, particularly its ability to
implement renovation, expansion and leasing programs, will enable it to maintain
and increase rental income from its properties.
EMPLOYEES
As of December 31, 1998, the Company employed approximately 750
individuals (including executive, administrative and field personnel).
FINANCIAL INFORMATION ABOUT INDUSTRY SEGMENTS
The Company is in the business of managing, operating, leasing,
acquiring, developing and investing in retail properties (including four office
properties and two vacant land parcels) and apartment communities. See the
Consolidated Financial Statements and Notes thereto included in Item 8 of this
Annual Report on Form 10-K for certain information required by Item 1. See
"--Description of Business--Strategy and Philosophy" above.
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RISK FACTORS
Set forth below are the risks that the Company believes are material to
investors who purchase or own the securities of the Company that are not
otherwise described in this Annual Report on Form 10-K.
There Can Be No Assurance that the Company Will Effectively Manage Growth
The Company intends to pursue an aggressive growth strategy in the
foreseeable future. The Company plans to manage this growth by applying its
experience to new properties and markets, and expects to be successful in that
effort. If the Company does not effectively manage its rapid growth, however, it
may not be able to service its debt or pay expected dividends to its
stockholders.
The Company is Dependent on Key Personnel
The Company depends upon the efforts of its executive officers. In
particular, the Company depends upon the services of William Newman, Arnold
Laubich and Gary B. Sabin, who serve as Chairman of the Board, Chief Executive
Officer, and President of the Company, respectively. The loss of the services of
any of these executive officers or of certain other key personnel could have a
material adverse effect on the Company. William Newman has entered into an
agreement to provide consulting services to the Company through December 31,
2003, with two automatic one-year renewal periods thereafter unless terminated
by either party. Arnold Laubich and Gary B. Sabin have each entered into
employment agreements which have terms through December 31, 2002, with automatic
one-year renewal periods thereafter unless terminated by either party. In
addition, the Company has entered into employment agreements with certain of its
other executive officers. The Company has not obtained "key man" insurance with
respect to any members of its executive management team, however, and does not
expect that it will purchase such insurance in the foreseeable future.
Performance and Share Value are Subject to Risks Associated With the Real Estate
Industry
The Company Faces the Risks of All Real Estate Companies. If the
Company's assets do not generate income sufficient to pay expenses and maintain
properties, it may not be able to service debt or pay expected dividends to
stockholders. A number of factors may adversely affect the economic performance
of the Company and the value of its properties. These factors include changes in
the national, regional and local economic climate, local conditions, such as an
oversupply of space in properties like those owned by the Company, or a
reduction in demand for such properties, the attractiveness of its properties to
tenants, competition from other available properties, changes in market rental
rates and the need to periodically repair, renovate and relet space. The
Company's performance also depends on its ability to collect rent from tenants
and to pay for adequate maintenance, insurance and other operating costs
(including real estate taxes), which could increase over time. Also, the
expenses of owning and operating a property are not necessarily reduced when
circumstances such as market factors and competition cause a reduction in income
from the property. If a property is mortgaged and the Company is unable to make
the mortgage payments, the lender could foreclose on the mortgage and take the
property. In addition, interest rate levels, the availability of financing and
changes in laws and governmental regulations (including those governing usage,
zoning, the environment and taxes) may adversely affect the Company's financial
condition.
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The Company is Dependent upon Economic Trends in the Retailing
Industry. The Company's properties consist largely of community and neighborhood
shopping centers and other retail properties. The Company's performance
therefore is linked to economic conditions in the market for retail space
generally. The market for retail space has been or could be adversely affected
by the ongoing consolidation in the retail sector, the adverse financial
condition of certain large retailing companies, the excess amount of retail
space in certain markets, and increasing consumer purchases through catalogues
or the internet. To the extent that these conditions impact the market rents for
retail space, the Company's financial position and ability to service debt and
pay dividends to stockholders could be adversely affected.
The Company May be Unable to Renew Leases or Relet Space as Leases
Expire. If the Company's tenants decide not to renew their leases upon
expiration, it may not be able to relet the space. Even if the tenants do renew
or the Company can relet the space, the terms of renewal or reletting (including
the cost of required renovations) may be less favorable than current lease terms
or than expectations for the space. As of December 31, 1998, leases were
scheduled to expire on a total of approximately 35% of the space at the
Company's retail properties through the end of 2002. If the Company is unable
promptly to renew the leases or relet this space, or if the rental rates upon
renewal or reletting are significantly lower than expected rates, then the
results of operations and financial condition may be adversely affected.
Consequently, cash flow and ability to service debt and pay dividends to
stockholders could be adversely affected.
The Company is Dependent Upon the Financial Health of its Tenants. The
Company's financial position and ability to pay dividends may be affected by
financial difficulties experienced by a major tenant, including a bankruptcy,
insolvency or general downturn in business. The bankruptcy or insolvency of one
or more major tenants or a number of smaller tenants may have an adverse impact
on the Company's properties and on the income produced by such properties. As of
December 31, 1998, the Company's largest retail tenants were Kmart and Wal-mart,
whose scheduled annualized base rents represented 5.1% and 3.5%, respectively,
of the Company's total annualized base rents.
New Acquisitions and Developments May Fail to Perform as Expected and
Competition for Acquisitions May Result in Increased Prices for Properties. The
Company intends to continue actively acquiring and developing community and
neighborhood shopping centers, other retail and commercial properties and
apartment communities. Newly acquired and newly developed properties may fail to
perform as expected. The Company's management may underestimate the costs
necessary to bring an acquired property up to standards established for its
intended market position. New developments are subject to a number of risks,
including construction delays, cost overruns, financing risks, failure to meet
expected occupancy and rent levels, delays in and the inability to obtain
zoning, occupancy and other governmental permits, and changes in zoning and land
use laws. These development risks may result in increased project costs and the
incurrence of costs for developments that are not pursued to completion.
Additionally, the Company expects that other major real estate investors with
significant capital will compete with it for attractive investment and
development opportunities. These competitors include publicly traded REITs,
private REITs, investment banking firms and private institutional investment
funds. This competition has increased prices for the types of properties in
which the Company invests. The Company expects to acquire and develop properties
with cash from secured or unsecured financings or from offerings of equity or
debt. The Company may sometimes acquire properties with partnership units from a
partnership that it controls. The Company may not be in a position or have the
opportunity in the future to make suitable property acquisitions or to develop
properties on favorable terms.
10
<PAGE> 13
Because Real Estate Property Investments are Illiquid, the Company May
Not be Able to Sell Properties When Appropriate. Real estate property
investments generally cannot be sold quickly. In addition, the federal tax code
imposes restrictions on a REIT's ability to dispose of properties. The Company
may not be able to vary its portfolio promptly in response to economic or other
conditions. This inability to respond promptly to changes in economic or other
conditions could adversely affect the Company's financial condition and ability
to service debt and pay dividends to stockholders.
Some Potential Losses are Not Covered By Insurance. The Company carries
comprehensive liability, fire, extended coverage and rental loss insurance on
all of its properties. The Company believes the policy specifications and
insured limits of these policies are adequate and appropriate. There are,
however, certain types of losses, such as lease and other contract claims, that
generally are not insured. Should an uninsured loss or a loss in excess of
insured limits occur, the Company could lose all or a portion of the capital it
has invested in a property, as well as the anticipated future revenue from the
property. In such an event, the Company might nevertheless remain obligated for
any recourse mortgage debt or other financial obligations related to the
property.
Debt Financing, Financial Covenants, Degree of Leverage and Increases in
Interest Rates Could Adversely Affect the Company's Economic Performance
Scheduled Debt Payments Could Adversely Affect the Company's Financial
Condition. The Company's business is subject to risks normally associated with
debt financing. Cash flow could be insufficient to pay expected dividends to
stockholders and meet required payments of principal and interest. The Company
may not be able to refinance existing indebtedness (which in virtually all cases
requires substantial principal payments at maturity) and, even if it can, the
terms of such refinancing might not be as favorable as the terms of existing
indebtedness. The total principal amount of the Company's outstanding
indebtedness was $1.1 billion as of December 31, 1998. If principal payments due
at maturity cannot be refinanced, extended or paid with proceeds of other
capital transactions, such as new equity capital, cash flow may not be
sufficient in all years to repay all maturing debt. If prevailing interest rates
or other factors at the time of refinancing (such as the possible reluctance of
lenders to make commercial real estate loans) result in higher interest rates,
increased interest expense would adversely affect cash flow and the Company's
ability to service debt and pay expected dividends to stockholders.
Financial Covenants Could Adversely Affect the Company's Financial
Condition. If a property is mortgaged to secure payment of indebtedness and the
Company is unable to meet mortgage payments, the holder of the mortgage or
lender could foreclose on the property, resulting in loss of income and asset
value. Certain of the mortgages contain customary negative covenants which,
among other things, limit the Company's ability, without the prior consent of
the lender, to further mortgage the property, to enter into new leases or
materially modify existing leases, and to discontinue insurance coverage. In
addition, credit facilities and the indentures under which the Company's senior
unsecured indebtedness is issued contain certain financial and operating
covenants, including, among other things, certain coverage ratios, as well as
limitations on the Company's ability to incur secured and unsecured
indebtedness, sell all or substantially all of the Company's assets and engage
in mergers and consolidations and certain acquisitions. Foreclosure on mortgaged
properties or an inability to refinance existing indebtedness would likely have
a negative impact on the Company's financial condition and results of
operations.
The Company's Degree of Leverage Could Limit Its Ability to Obtain
Additional Financing. The Company's organizational documents do not contain any
limitation on the incurrence of indebtedness. The
11
<PAGE> 14
degree of leverage of the Company could have important consequences, including
affecting the ability to obtain additional financing in the future for working
capital, capital expenditures, acquisitions, development or other general
corporate purposes and making the Company more vulnerable to a downturn in
business or the economy generally.
The Company is Subject to Interest Rate Risk. Increases in interest
rates, or the loss of the benefits of any hedging agreements of the Company,
would increase the Company's interest expense, which would adversely affect cash
flow and the Company's ability to service its debt and pay dividends to
stockholders. As of December 31, 1998, the Company had $200.5 million
outstanding under two unsecured revolving credit facilities under which advances
bear interest at floating interest rates. One is a $250 million credit facility
that expires in December 1999, and the other is a $50 million credit facility
that expires in November 1999. As of December 31, 1998, the Company also had
approximately $170 million in floating rate notes and mortgages outstanding,
with $49 million maturing in August 1999, $40 million maturing in May 2000, $10
million maturing in August 2000 and approximately $71 million maturing in
various amounts not exceeding $10 million each on various dates from July 1999
to February 2013. The Company was not a party to any hedging agreements with
respect to its floating rate debt as of December 31, 1998. In the event of a
significant increase in interest rates, the Company would consider entering into
hedging agreements with respect to all or a portion of its floating rate debt.
Although hedging agreements would enable the Company to convert floating rate
liabilities to fixed rate liabilities, they would expose the Company to the risk
that the counterparties to such hedge agreements may not perform, which could
increase the Company's exposure to rising interest rates. Generally, however,
the counterparties to hedging agreements that the Company would enter into would
be major financial institutions. The Company may borrow additional money with
floating interest rates in the future. Increases in interest rates, or the loss
of the benefits of any hedging agreements that the Company may enter into in the
future, would increase the Company's interest expenses, which would adversely
affect cash flow and the ability of the Company to service its debt. If the
Company enters into any hedging agreements in the future, decreases in interest
rates thereafter would increase the Company's interest expenses as compared to
the underlying floating rate debt and could result in the Company making
payments to unwind such agreements.
The Ability of Stockholders to Effect Changes in Control of the Company is
Limited
Provisions of the Company's Charter and Bylaws Could Inhibit Changes in
Control. Certain provisions of the Company's charter and bylaws may delay or
prevent a change in control of the Company or other transactions that could
provide stockholders with a premium over the then-prevailing market price of
their common stock or that might otherwise be in the best interests of the
stockholders. These include a staggered Board of Directors, a stockholder rights
plan and the REIT share ownership limits described two paragraphs below. Also,
any future series of preferred stock of the Company may have certain voting
provisions that could delay or prevent a change of control or other transaction
that might involve a premium price or otherwise be in the best interests of the
common or other stockholders.
The Company Could Adopt Maryland Law Limitations on Changes in Control.
Certain provisions of Maryland law applicable to REITs prohibit "business
combinations" (including certain issuances of equity securities) with any person
who beneficially owns ten percent or more of the voting power of outstanding
shares, or with an affiliate of the REIT who, at any time within the two-year
period prior to the date in question, was the beneficial owner of ten percent or
more of the voting power of the outstanding voting shares (a so-called
"interested stockholder"), or with an affiliate of an interested stockholder.
These
12
<PAGE> 15
prohibitions last for five years after the most recent date on which the
interested stockholder became an interested stockholder. After the five-year
period, a business combination with an interested stockholder must be approved
by two super-majority stockholder votes unless, among other conditions, the
REIT's common stockholders receive a minimum price for their shares and the
consideration is received in cash or in the same form as previously paid by the
interested stockholder for its common shares. The Board of Directors of the
Company has opted out of these business combination provisions. Consequently,
the five-year prohibition and the super-majority vote requirements will not
apply to a business combination involving the Company. The Board of Directors
may, however, repeal this election in most cases and cause the Company to become
subject to these provisions in the future.
The Company Has a Share Ownership Limit. To facilitate maintenance of
the Company's REIT qualification and for other strategic reasons, the Company's
charter generally prohibits any person from acquiring or holding shares of the
Company's preferred and common stock in excess of 9.8% (by value or by number of
shares, whichever is more restrictive) of the outstanding shares of each class
or series of stock of the Company. The Company's Board of Directors may exempt a
person from this ownership limit under specified conditions. Absent an exemption
or a waiver, shares of stock that are purportedly transferred in excess of the
ownership limit will be automatically transferred to a trust for the exclusive
benefit of one or more charitable beneficiaries, and the purported transferee
will not acquire any rights in such shares. This ownership limit could delay or
prevent a change in control of the Company and, therefore, could adversely
affect the common stockholders' ability to realize a premium over the
then-prevailing market price for their shares.
The Company Does Not Control its Development Business
To facilitate maintenance of its REIT qualification, the Company has an
investment in a noncontrolled company that is engaged in the real estate
development business, EDV. Although the Company owns 95% of the economic
interest in EDV, its voting stock is owned directly or indirectly by a private
company controlled by certain of the Company's executive officers. The Company
therefore does not control the timing or amount of dividends or the management
and operations of this company. As a result, decisions relating to the
declaration and payment of dividends and the business policies and operations of
this company could be adverse to the Company's interests or could lead to
adverse financial results, which could adversely affect the Company's financial
condition and results of operations.
Certain Directors and Executive Officers Have Conflicts of Interest Involving
Legacy
Certain of the Company's directors and officers continue to serve as
directors and officers of Legacy, which Excel spun off in March 1998. As of
December 31, 1998, these individuals held 10,227,046 shares of common stock of
Legacy, which equaled approximately 31% of the currently outstanding shares, and
held options to acquire another 3,162,000 shares. The Company and Legacy
currently are parties to agreements providing for: (i) the orderly separation of
the Company and Legacy; (ii) the sharing of certain facilities and the provision
of management and administrative services by the Company to Legacy; and (iii)
the allocation of certain tax and other liabilities. Conflicts may arise with
respect to the operation and effect of these agreements and relationships, which
could have an adverse effect on the Company if not properly resolved. In this
regard, the certificate of incorporation of Legacy contains a specific purpose
clause providing that Legacy's purpose includes complying with an intercompany
agreement between the Company and Legacy as long as the agreement remains in
effect. The agreement prohibits Legacy from investing in community and
neighborhood shopping
13
<PAGE> 16
centers, power centers, malls or other conventional retail properties unless it
has first offered to Excel (now the Company) the opportunity to pursue such
investments.
Environmental Problems are Possible and Can Be Costly
Federal, state and local laws and regulations relating to the
protection of the environment may require a current or previous owner or
operator of real estate to investigate and clean up hazardous or toxic
substances or petroleum product releases at such property. The owner or operator
may have to pay a governmental entity or third parties for property damage and
for investigation and clean-up costs incurred by such parties in connection with
the contamination. Such laws typically impose clean-up responsibility and
liability without regard to whether the owner or operator knew of or caused the
presence of contaminants. Even if more than one person may have been responsible
for the contamination, each person covered by the environmental laws may be held
responsible for all of the clean-up costs incurred. In addition, third parties
may sue the owner or operator of a site for damages and costs resulting from
environmental contamination emanating from that site.
Environmental laws also govern the presence, maintenance and removal of
asbestos. Such laws require that owners or operators of buildings containing
asbestos properly manage and maintain the asbestos, that they notify and train
those who may come into contact with asbestos and that they undertake special
precautions, including removal or other abatement, if asbestos would be
disturbed during renovation or demolition of a building. Such laws may impose
fines and penalties on building owners or operators who fail to comply with
these requirements and may allow third parties to seek recovery from owners or
operators for personal injury associated with exposure to asbestos fibers.
The Market Value of the Company's Publicly Traded Securities Can Be Adversely
Affected by a Number of Factors
Changes in Market Conditions Could Adversely Affect the Market Price of
the Company's Publicly Traded Securities. As with other publicly traded
securities, the value of the Company's publicly traded securities depends on
various market conditions, which may change from time to time. Among the market
conditions that may affect the value of its publicly traded securities are the
following: the extent of institutional investor interest in the Company; the
reputation of REITs generally; the reputation of REITs with portfolios similar
to the Company's; the attractiveness of the securities of REITs in comparison to
other securities (including securities issued by other real estate companies);
the Company's financial condition and performance; and general economic and
financial market conditions.
The Company's Earnings and Cash Dividends Will Affect the Market Price
of its Publicly Traded Securities. The Company believes that the market value of
a REIT's equity securities is based primarily upon the market's perception of
the REIT's growth potential and its current and potential future cash dividends,
and is secondarily based upon the real estate market value of the underlying
assets. For that reason, the Company's common stock may trade at prices that are
higher or lower than the net asset value per share. To the extent the Company
retains operating cash flow for investment purposes, working capital reserves or
other purposes, these retained funds, while increasing the value of its
underlying assets, may not correspondingly increase the market price of the
Company's shares. Failure to meet the market's expectations with regard to
future earnings and cash dividends likely would adversely affect the market
price of the Company's publicly traded equity securities.
14
<PAGE> 17
Market Interest Rates May Have an Effect on the Value of the Company's
Publicly Traded Securities. One of the factors that investors consider important
in deciding whether to buy or sell shares of a REIT is the dividend rate on such
shares (as a percentage of the price of such shares) relative to market interest
rates. If market interest rates go up, prospective purchasers of REIT shares may
expect a higher dividend rate. Higher interest rates would not, however, result
in more dividends and, in fact, likely would increase borrowing costs and
potentially decrease funds available for dividends. Thus, higher market interest
rates could cause the market price of the Company's publicly traded securities
to go down.
The Company is Dependent on External Sources of Capital
To qualify as a REIT, among other things, the Company must distribute
to its stockholders each year at least 95% of its REIT taxable income (excluding
any net capital gain). Because of these distribution requirements, the Company
likely will not be able to fund all future capital needs, including capital for
acquisitions, with income from operations. The Company therefore will have to
rely on third-party sources of capital, which may or may not be available on
favorable terms or at all. The Company's access to third-party sources of
capital depends on a number of things, including the market's perception of its
growth potential and its current and potential future earnings. Moreover,
additional equity offerings may result in substantial dilution of stockholders'
interests, and additional debt financing may substantially increase leverage.
The Company's Classification as a REIT is Dependent on Compliance with Federal
Income Tax Requirements
Failure of the Company to Qualify as a REIT Would Have Serious Adverse
Consequences to Stockholders. The Company believes that its predecessor
companies, the Trust and Excel, qualified for taxation as REITs for federal
income tax purposes since their first elections to be taxed as REITs for the
taxable years ended July 31, 1972 and December 31, 1987, respectively. The
Company plans to continue to operate the combined company so that it meets the
requirements for taxation as a REIT. Many of these requirements, however, are
highly technical and complex. The determination that the Company is a REIT
requires an analysis of various factual matters and circumstances that may not
be totally within the Company's control. For example, to qualify as a REIT, at
least 95% of the Company's gross income must come from certain sources that are
itemized in the REIT tax laws. The Company is also required to distribute to
stockholders at least 95% of its REIT taxable income (excluding capital gains).
The fact that the Company holds certain of its assets through partnerships and
their subsidiaries further complicates the application of the REIT requirements.
Even a technical or inadvertent mistake could jeopardize the Company's REIT
status. Furthermore, Congress and the Internal Revenue Service might make
changes to the tax laws and regulations, and the courts might issue new rulings,
that make it more difficult, or impossible, for the Company to remain qualified
as a REIT. The Company does not believe, however, that any pending or proposed
tax law changes would jeopardize its REIT status.
If the Company fails to qualify as a REIT, the Company would be subject
to federal income tax at regular corporate rates. Also, unless the IRS granted
the Company relief under certain statutory provisions, the Company would remain
disqualified as a REIT for four years following the year the Company first
failed to qualify. If the Company failed to qualify as a REIT, the Company would
have to pay significant income taxes and would therefore have less money
available for investments, debt service and dividends to stockholders. This
likely would have a significant adverse affect on the value of its securities.
In addition, the Company would no longer be required to pay any dividends to
stockholders.
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<PAGE> 18
The Company Could be Disqualified as a REIT or Have to Pay Taxes if its
Predecessor Companies Did Not Qualify as REITs. If either the Trust or Excel,
whose businesses were combined in the Merger on September 28, 1998 to form the
Company, failed to qualify as a REIT throughout the duration of its existence,
it might have had undistributed "C corporation earnings and profits." If that
were the case and the Trust or Excel did not distribute such earnings and
profits prior to the Merger, the Company might not qualify as a REIT. The
Company believes that each of the Trust and Excel qualified as a REIT and that,
in any event, neither the Trust nor Excel had any undistributed "C corporation
earnings and profits" at the time of the Merger. If either the Trust or Excel
failed to qualify as a REIT, it would have recognized taxable gain at the time
of the Merger (and the Company would be liable for the tax on such gain). This
would be the case even though the business combination qualified as a "tax-free
reorganization," unless the Company makes a special election that is available
under current law. The Company will make such an election with respect to each
of the Trust and Excel. This election will have the effect of requiring the
Company, if the Trust or Excel was not qualified as a REIT, to pay corporate
income tax on any gain existing at the time of the business combination on
assets acquired in the combination if such assets are sold within 10 years after
the combination. Finally, if either the Trust or Excel did not qualify as a
REIT, the Company could be precluded from electing REIT status for up to four
years after the year in which the predecessor company failed to qualify if the
Company were determined to be a "successor" to that predecessor company.
There Can Be No Assurance That the Company Will Be Successful in Integrating Two
Previously Separate Companies
The Merger took place in September 1998. There can be no assurance that
the remaining integration of the respective operations of the Trust and Excel
will be completed without substantial difficulties. Such difficulties could
include integrating different business strategies with respect to owning,
operating, acquiring and developing real estate properties, and integrating
personnel with different business backgrounds and corporate cultures. Further,
the process of integrating management services, administrative organizations,
facilities, management information systems and other aspects of operations,
while simultaneously managing a larger and geographically expanded entity, will
present a significant challenge to the management of the Company. There can be
no assurance that there will not be substantial costs associated with the
integration process, that the integration activities will not result in a
decrease in revenues or that there will not be other material adverse effects on
the Company as a result of the integration efforts. Although the Company does
not expect to incur any current material charge against earnings for integration
costs resulting from the Merger, there can be no assurance that the Company will
not in the future incur material charges to reflect costs associated with the
Merger.
Failure to Obtain Year 2000 Compliance May Have Adverse Effects on the Company
Many currently installed computer systems, software products, time
clocks and other similar devices of the Company are coded to accept only two
digit entries in the date code field. The Company needs to have these date code
fields upgraded or recoded to accept four digit entries to distinguish 21st
century dates from 20th century dates. Uncertainty exists concerning the
potential effects associated with compliance with such "Year 2000" requirements.
In addition, even if the Company's equipment and software is Year 2000
compliant, equipment and software used by suppliers or other third parties
having a material relationship with the Company (e.g., utilities, financial
institutions, major tenants, suppliers, governmental agencies and
municipalities) may not be Year 2000 compliant.
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<PAGE> 19
ITEM 2. PROPERTIES
As of December 31, 1998, the Company owned interests in 301 retail
properties (including four office properties and two vacant land parcels) and 54
apartment communities. The following table sets forth certain information
as of December 31, 1998 regarding the Company's properties on a state-by-state
basis:
<TABLE>
<CAPTION>
RETAIL PROPERTIES APARTMENT COMMUNITIES
------------------------------------------------------------------------------------------------------
PERCENT OF PERCENT OF
GROSS SCHEDULED TOTAL SCHEDULED
NUMBER OF PERCENT LEASABLE RETAIL NUMBER OF NUMBER OF PERCENT APARTMENT
STATE PROPERTIES LEASED AREA ABR(1) PROPERTIES UNITS LEASED ABR(1)
- ---------------- ---------- ------- -------- ---------- ---------- --------- ------- ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Alabama 7 98.3% 764,564 1.6% 9 2,283 91.3% 16.2%
Arizona 12 91.6% 1,103,291 3.3% - - - -
Arkansas 2 100.0% 105,459 0.2% - - - -
California 17 93.7% 2,500,811 10.0% - - - -
Colorado 2 100.0% 352,156 1.6% - - - -
Delaware 2 80.4% 243,610 0.5% 2 303 85.9% 2.2%
Florida 18 93.8% 3,535,950 9.0% 2 539 96.6% 5.2%
Georgia 33 92.9% 2,937,840 6.4% 2 420 92.1% 3.2%
Illinois 10 98.4% 1,219,273 4.0% - - - -
Indiana 14 95.2% 942,221 1.8% 3 893 92.0% 6.3%
Iowa 5 81.1% 604,673 1.3% - - - -
Kentucky 11 96.4% 1,718,391 3.9% 6 1,363 87.5% 10.4%
Louisiana 2 98.8% 261,518 0.6% 3 1,244 89.6% 9.5%
Maryland 2 68.5% 325,062 0.7% - - - -
Michigan 12 96.1% 1,973,549 5.8% - - - -
Minnesota 3 98.3% 85,935 0.4% - - - -
Missouri 5 85.4% 799,214 4.1% 1 309 95.0% 2.6%
Nebraska 3 100.0% 70,513 0.2% - - - -
Nevada 3 99.3% 585,361 2.0% - - - -
New Jersey 9 93.4% 1,117,555 4.1% - - - -
New York 26 91.9% 3,434,263 8.0% 2 308 92.9% 2.1%
North Carolina 17 97.5% 1,800,225 3.8% 2 463 94.6% 4.2%
Ohio 22 90.3% 3,166,774 7.2% 7 1,601 91.8% 13.5%
Oklahoma 1 100.0% 45,510 0.1% - - - -
Pennsylvania 20 95.2% 2,253,885 6.4% 1 130 91.0% 1.1%
South Carolina 5 93.1% 376,002 1.0% 3 640 83.8% 4.7%
Tennessee 16 96.9% 2,029,280 4.8% 11 2,480 87.6% 18.9%
Texas 7 97.3% 590,385 1.6% - - - -
Utah 1 88.8% 587,440 1.2% - - - -
Virginia 11 89.7% 1,598,962 3.6% - - - -
West Virginia 3 95.4% 352,538 0.8% - - - -
------------------------------------------------------------------------------------------------------
301 93.2% 37,482,210 100.0% 54 12,976 90.1% 100.0%
======================================================================================================
</TABLE>
- ----------
1 ABR represents annualized base rent.
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<PAGE> 20
ITEM 3. LEGAL PROCEEDINGS
The Company is not presently involved in any material pending legal
proceedings nor, to its knowledge, is any material litigation threatened against
the Company or its properties, other than litigation arising in the ordinary
course of business.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matters were submitted to a vote of the stockholders of the Company
during the fourth quarter of 1998.
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
The Company's common stock is listed for trading on the New York Stock
Exchange under the symbol "NXL." As of March 26, 1999, there were approximately
14,480 registered record holders of the Company's common stock, plus those who
hold their shares in street name. The following table sets forth the high and
low sales price, as reported by the New York Stock Exchange composite tape, and
the cash dividends declared each calendar quarter during 1998 and 1997 with
respect to the Company's common stock:
<TABLE>
<CAPTION>
CASH
DIVIDENDS
HIGH(1) LOW(1) DECLARED(1)
--------- --------- -----------
<S> <C> <C> <C>
1997:
First quarter $ 21.7708 $ 19.1667 $ 0.383
Second quarter 22.5000 19.8958 0.383
Third quarter 26.5625 22.0833 0.417
Fourth quarter 27.2917 23.3858 0.417
1998:
First quarter 29.6875 25.2600 $ 0.417
Second quarter 25.0000(2) 21.6667(2) 0.417
Third quarter 25.0000 21.5000 0.417
Fourth quarter 23.2500 20.2500 0.400
</TABLE>
- ----------
1 The high and low sales price and cash dividends declared prior to the
Merger have been adjusted to reflect the 20% stock dividend that Excel paid
in connection with the Merger. See "Business--Description of
Business--Recent Developments--The Merger." The actual cash dividends
declared by the Company were $0.460 for each of the first and second
quarters of 1997 and $0.500 for each of the third and fourth quarters of
1997 and the first, second and third quarters of 1998.
2 On March 31, 1998, Excel consummated the Spin-off of Legacy through the
distribution, on a pro-rata basis, to the holders of Excel's common stock,
of all of the common stock of Legacy held by Excel. See
"Business--Description of Business--Recent Developments--Spin-Off of
Legacy."
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<PAGE> 21
ITEM 6. SELECTED FINANCIAL DATA
The financial information included in the following table has been
selected by the Company and has been derived from the consolidated financial
statements for the periods indicated.
Under generally accepted accounting principles, the Merger was
accounted for as a purchase by the Trust of Excel. Therefore, all of the
financial information prior to September 28, 1998 included in the following
table is that of the Trust. Because the Trust had a fiscal year end of July 31
prior to the Merger, the financial information included in the following table
for periods prior to September 28, 1998 is based on a fiscal year end of July
31. All of the financial information included in the following table for periods
on and after September 28, 1998 relates to the Company as a combined entity.
Immediately following the Merger, each of the Company and the Trust adopted a
fiscal year end of December 31, beginning with a short fiscal year ending on
December 31, 1998.
The financial information included in the following table should be
read in conjunction with the audited financial statements included in Item 14(a)
of this Form 10-K (in thousands, except for per share amounts). The unaudited
pro forma information for the twelve months ended December 31, 1998 has been
presented as if the Merger had been consummated on January 1, 1998. The pro
forma information is not necessarily indicative of what the actual results of
operations of the Company would have been had the Merger actually occurred on
January 1, 1998.
<TABLE>
<CAPTION>
TWELVE MONTHS
ENDED FIVE MONTHS
DECEMBER 31, ENDED YEARS ENDED JULY 31,
1998 DECEMBER 31, ---------------------------------------------------------------------
STATEMENT OF INCOME DATA: (PRO FORMA) 1998 1998 1997 1996 1995 1994
- ------------------------- ------------- ----------- ----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
Revenue $ 419,110 $ 155,921 $ 250,259 $ 206,821 $ 167,606 $ 130,576 $ 100,955
Expenses 262,276 99,693 156,875 127,578 94,868 65,572 46,914
----------- ----------- ----------- ----------- ----------- ----------- -----------
156,834 56,228 93,384 79,243 72,738 65,004 54,041
Minority interest (1,683) (457) -- -- -- -- --
Other (1,050) -- -- -- -- -- --
(Loss)/gain on sales of
properties and
securities, net 370 34 (41) (3) 399 228 989
----------- ----------- ----------- ----------- ----------- ----------- -----------
Net income 154,471 55,805 93,343 79,240 73,137 65,232 55,030
Preferred dividends 23,696 6,914 2,770 2,203 2,616 2,516 2,713
----------- ----------- ----------- ----------- ----------- ----------- -----------
Net income - basic 130,775 48,891 90,573 77,037 70,521 62,716 52,317
Minority interest 1,683 457 -- -- -- -- --
----------- ----------- ----------- ----------- ----------- ----------- -----------
Net income - diluted $ 132,458 $ 49,348 $ 90,573 $ 77,037 $ 70,521 $ 62,716 $ 52,317
=========== =========== =========== =========== =========== =========== ===========
Net income per common
share
Basic $ 1.49 $ 0.63 $ 1.43 $ 1.31 $ 1.25 $ 1.19 $ 1.06
Diluted $ 1.47 $ 0.62 $ 1.42 $ 1.30 $ 1.25 $ 1.18 $ 1.05
Weighted average number
of common shares
outstanding
Basic 87,504 77,481 59,365 58,461 56,484 52,894 49,502
Diluted 90,419 79,396 59,774 58,735 56,642 53,040 49,768
OTHER DATA:
Distributions per common
share $ 1.615 $ 0.678 $ 1.475 $ 1.435 $ 1.395 $ 1.355 $ 1.315
=========== =========== =========== =========== =========== =========== ===========
BALANCE SHEET DATA AS OF
THE END OF EACH PERIOD:
Total assets $ 2,894,546 $ 2,894,546 $ 1,384,525 $ 1,261,144 $ 945,394 $ 796,636 $ 616,993
Long-term debt obligations 1,105,271 1,105,271 576,888 478,207 238,426 206,652 28,060
Shareholders' equity 1,695,574 1,695,574 764,527 744,995 659,354 570,529 565,493
</TABLE>
19
<PAGE> 22
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
LIQUIDITY AND CAPITAL RESOURCES
Cash flow from operations has been the principal source of capital to
fund the Company's ongoing operations. The Company's issuance of common and
preferred stock, use of the Company's revolving credit facilities and financing
from unsecured notes and mortgage debt have been the principal sources of
capital required to fund its growth.
In order to continue to expand and develop its portfolio of properties
and other investments, the Company intends to finance future acquisitions and
growth through the most advantageous sources of capital available to the Company
at the time, which may include the sale of common stock, preferred stock or debt
securities through public offerings or private placements, the incurrence of
additional indebtedness through secured or unsecured borrowings, and the
reinvestment of proceeds from the disposition of assets. The Company also may
enter into joint ventures with institutions to acquire large properties. In
these instances, the Company generally receives property management and leasing
fees in addition to a disproportionate share of the profits after a preferred
return is received by the institutional partner. The Company's financing
strategy is to maintain a strong and flexible financial position by (i)
maintaining a prudent level of leverage, (ii) maintaining a large pool of
unencumbered properties, (iii) managing its exposure to interest rate risk
represented by its floating rate debt, (iv) where possible, amortizing existing
non-recourse mortgage debt secured by specific properties over the term of the
leases with anchor tenants at such mortgaged properties, and (v) maintaining a
conservative distribution payout ratio.
The Company has a revolving credit facility of $250.0 million in
unsecured advances from a group of banks. The facility expires in December 1999
and bears an interest rate of 120 basis points over LIBOR. As of December 31,
1998, the Company had $150.5 million outstanding under this facility. The
covenants of the credit facility include maintaining certain ratios such as
liabilities to assets of less than 50% and maintaining a minimum interest
coverage of 2 to 1. The Company also has an unsecured revolving credit facility
of $50 million through November 1999, all of which was outstanding as of
December 31, 1998.
In addition to outstanding amounts on the Company's credit facilities,
debt as of December 31, 1998 consisted of $388.2 million of mortgages payable
having a weighted average interest rate of 7.7% and $489.2 million of notes
payable with a weighted average interest rate of 6.9%. Of this debt, $170.4
million bear variable interest rates. Additionally, the Company has $1.7 million
in marketable equity securities which are sensitive to market price changes and
notes receivable in the amount of approximately Canadian $16.0 million
(approximately U.S. $10.4 million as of December 31, 1998) which are sensitive
to currency exchange rate fluctuations.
In November 1998, the Company filed a $1 billion shelf registration
statement. This registration statement was filed for the purpose of issuing debt
securities, preferred stock, depository shares, common stock, warrants or
rights. Currently, no securities have been issued under this shelf registration
statement. On February 3, 1999, the Company established a program for the sale
of up to $500 million aggregate principal amount of medium-term notes due nine
months or more from date of issue. The Trust will guarantee any medium-term
notes issued by the Company in the future under this program under this shelf
registration statement.
20
<PAGE> 23
Other sources of funds are available to the Company. Based on
management's internal valuation of the Company's properties, many of which are
free and clear of mortgages, the estimated value is considerably in excess of
the outstanding mortgage indebtedness. Accordingly, management believes that
potential exists for additional mortgage financing as well as unsecured
borrowing capacity from banks and other lenders.
The Company has three classes of preferred stock outstanding as of
December 31, 1998: (i) 2,124,000 shares of 8 1/2% Series A Cumulative
Convertible Preferred Stock outstanding which have an annual distribution of
$2.125 per share payable quarterly; (ii) 6,300,000 depositary shares
outstanding, each representing 1/10 of a share of 8 5/8% Series B Cumulative
Redeemable Preferred Stock, with an annual distribution of $2.15625 per
depositary share payable quarterly; and (iii) 1,500,000 depositary shares
outstanding, each representing 1/10 of one share of 7.8% Series D Cumulative
Voting Step-Up Premium Rate Preferred Stock, with a liquidation preference and
annual distribution of $50 and $3.90 per depositary share, respectively.
The current quarterly dividend on the Company's common stock is $.4025
per share. The Company anticipates that the quarterly dividend will increase at
least $.0025 per share per quarter (which quarterly increases amount to $.01 per
share on an annualized basis and effectively increase the annualized dividend
rate by $.04 per share for each share held over a 12-month period) until the
annualized quarterly dividend on the Company's common stock is at least $1.67
per share. The maintenance of this dividend policy will be subject to various
factors, including the discretion of the Board of Directors of the Company, the
ability to pay dividends under applicable law and the effect which the payment
of dividends may have from time to time on the maintenance by the Company of its
status as a REIT.
In the normal course of business, the Company also faces risks that are
either non-financial or non-qualitative. Such risks principally include credit
risks and legal risks and are not included in the aforementioned notes.
YEAR 2000 COMPLIANCE
Year 2000 Compliance Readiness
The Company's centralized corporate business and technical information
systems have been assessed as to Year 2000 compliance and functionality. Year
2000 compliance issues with respect to the Company's internal business and
technical information systems were substantially remediated as of December 31,
1998. See "--Year 2000 Compliance Detail" below. In addition, the Company has
completed the identification and review of major computer hardware and software
suppliers and has verified the Year 2000 preparedness of these suppliers.
Year 2000 Compliance Detail
The Company addressed the Year 2000 issue with respect to the
following: (i) the Company's information technology and operating systems,
including its billing, accounting and financial reporting systems; (ii) the
Company's non-information technology systems, including building access, parking
lot light and energy management, equipment and other infrastructure systems that
may contain or use computer systems or embedded micro controller technology; and
(iii) certain systems of the Company's
21
<PAGE> 24
major suppliers and material service providers (insofar as such systems relate
to the Company's business activities such as payroll, health services and alarm
systems). As described below, the Company's Year 2000 review involves (a) an
assessment of the Year 2000 problems that may affect the Company, (b) the
development of remedies to address the problems discovered in the assessment
phase to the extent practical or feasible, (c) the testing of such remedies and
(d) the preparation of contingency plans to deal with worst case scenarios.
Assessment Phase
As part of the internal assessment phase, the Company has attempted to
substantially identify all the major components of the systems described above.
In determining the extent to which such systems are vulnerable to the Year 2000
issue, the Company is evaluating internally developed and/or purchased software
applications and property operational control systems (e.g., heating ventilation
and air conditioning (HVAC), lighting timers, alarms, fire, sewage and access).
In addition, in October 1998, the Company began sending letters to or making
inquiries of certain of its major suppliers and service providers, requesting
them to provide the Company with assurance of existing or anticipated Year 2000
compliance by their systems insofar as the systems relate to their activities
with the Company. The Company expects that it will complete its distribution of
these inquiries by April 30, 1999. The Company is requesting that all responses
to the inquiries be returned to it no later than May 31, 1999.
Remediation and Testing Phase
Based upon the assessment and remediation efforts to date, the Company
has completed, tested and put on line the Year 2000 compliance modification in
all the internally developed software for its accounting and property management
applications. The Company's computer terminals or personal computers are Year
2000 compliant in all material respects. The Company has secured software to
upgrade that part of the computer that will make it compliant. That part is
called the BIOS chip or Basic Input Output System. If there is any unforeseen
problem with a particular unit it will be replaced. Replacements are readily
available. Based on an inventory by model type of the Company's personal
computers, BIOS chip Year 2000 issues are not expected to be material. A
conservative, "worst case" scenario is included in the cost estimate. The
versions of the purchased software that the Company uses for spread sheet
analysis, database applications, word processing systems and its apartment rent
collection system have been tested and are compliant. The outsourced payroll
service and the integrated internal input system are compliant. The New York and
San Diego corporate office phone, communication and data collection networks are
Year 2000 compliant; however, based on the expanded needs of the Company,
replacement of the phone system (including the voicemail system) is scheduled to
occur by June 30, 1999. Phone systems at other than corporate office locations
are Year 2000 compliant. Phone systems at the apartment communities are 87% Year
2000 compliant. The balance of the phone systems at the apartment communities
are scheduled to be reviewed and be Year 2000 compliant by June 1999. The cost
estimates derived from this assessment are treated as worst case. Most of the
Company's shopping centers are "open air" type and are simple and very limited
in terms of technology. Field systems for shopping center HVAC, sprinkler and
lighting are more than 95% reviewed and Year 2000 compliant for those systems
supplied by the Company (some are supplied by tenants). The systems not supplied
by the Company, the number of which is small, are being reviewed and are
projected to not have a material impact. All of the 54 apartment communities
22
<PAGE> 25
have had reviews completed and, except for phone systems (as discussed above),
are Year 2000 compliant.
Costs Related to the Year 2000 Issue
The total historical or anticipated remaining costs for the Year 2000
remediation are estimated to be immaterial to the Company's financial condition.
The costs to date have been expensed as incurred and consist of immaterial
internal staff costs and other expenses such as telephone and mailing costs. The
Company currently estimates that to have all systems Year 2000 compliant will
require certain additional expenditures. At this time, the expenditures are
expected to range from a total of $60,000 to a "worst case" of $260,000.
Risks and Contingency Plans
Considering the substantial progress made to date, the Company does not
anticipate delays in finalizing internal Year 2000 remediation within remaining
time schedules. However, third parties having a material relationship with the
Company (e.g., utilities, financial institutions, major tenants, suppliers,
governmental agencies and municipalities) may be a potential risk based on their
individual Year 2000 preparedness which may not be within the Company's
reasonable control. The failure of critical third parties' computer software
programs and operating systems to achieve Year 2000 compliance may result in
system malfunctions or failures. Such an occurrence would potentially affect the
ability of the third party to operate its business and thereby raise adequate
revenue to meet its contractual obligations to the Company or provide services
to the Company. In that event, the Company may not receive revenue or services
that it had otherwise expected to receive pursuant to existing leases and
contracts. The failure of critical third parties to achieve Year 2000 compliance
may have a material adverse impact on the Company's business, operating results
and financial condition.
The Company is in the process of identifying and reviewing the Year
2000 preparedness of critical third parties. Anticipated completion of this
review is May 31, 1999. Pending the results of that review, the Company will
determine what course of action and contingencies, if any, will need to be made.
Although the Company's Year 2000 efforts are intended to minimize the
adverse effects of the Year 2000 issue on the Company's business, operating
results and financial condition, the actual effects of the issue and the success
or failure of the Company's efforts cannot be known until the year 2000. At this
point, the Company believes that the most likely external sources of a material
adverse impact on the Company's business, operating results and financial
condition as a result of Year 2000 issues are utilities (i.e., electricity,
natural gas, telephone service and water) furnished by third parties to the
Company and a wide universe of other customers, none of which utilities are
readily available from alternate sources. The reasonably likely worst case
scenario that could affect the Company's business, operating results and
financial condition would be a widespread prolonged power failure affecting a
substantial number of the geographic regions in which the Company's properties
are located. In the event of such a widespread prolonged power failure, a
significant number of tenants may not be able to operate their stores and, as a
result, their ability to pay rent could be substantially impaired. The Company
is not aware of an economically feasible contingency plan which could be
implemented to prevent such a power failure from having a material adverse
effect on the Company's business, operating results and financial condition.
23
<PAGE> 26
THE MERGER
Immediately following the Merger on September 28, 1998, approximately
88.2 million shares of common stock were outstanding and former holders of the
Trust's common shares held approximately 65% of those shares. As provided in the
Merger Agreement, since September 28, 1998, the Board of Directors of the
Company has consisted of the six former members of Excel's Board and the nine
former members of the Trust's Board. The Merger has, for financial accounting
purposes, been accounted for as a purchase by the Trust of Excel.
NEW ACCOUNTING STANDARD
During 1998, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standard No. 133, "Accounting for Derivative Instruments
and Hedging Activities." This standard establishes accounting and reporting
standards for derivative instruments, including certain derivative instruments
embedded in other contracts, and hedging activities. It is effective for fiscal
years beginning after June 15, 1999. The Company does not anticipate that
adoption of this standard will have a material effect on its financial position,
results of operations, or disclosures within its financial statements.
RESULTS OF OPERATIONS
The following discussion should be read in conjunction with the
Consolidated Financial Statements and the Notes thereto. Historical results and
percentage relationships set forth in the Consolidated Statements of Income
contained in the Consolidated Financial Statements and accompanying notes,
including trends which might appear, should not be taken as indicative of future
operations.
The actual results of operations for the five month period ended
December 31, 1998 only include operations of Excel from September 28, 1998 to
December 31, 1998. Therefore, certain pro forma comparisons are included which
have been presented as if the Merger had been consummated on August 1, 1998 and
1997, respectively (see Note 2 to the Consolidated Financial Statements included
in Item 8 of this Annual Report on Form 10-K). The pro forma information is not
necessarily indicative of what the actual results of operations of the Company
would have been had the Merger actually occurred on August 1, 1998 and 1997,
respectively (in thousands):
24
<PAGE> 27
<TABLE>
<CAPTION>
FIVE MONTHS ENDED FIVE MONTHS ENDED FIVE MONTHS ENDED FIVE MONTHS ENDED
DECEMBER 31, DECEMBER 31, DECEMBER 31, DECEMBER 31,
1998 1998 1997 1997
(ACTUAL) (PRO FORMA) (ACTUAL) (PRO FORMA)
----------------- ----------------- ----------------- -----------------
<S> <C> <C> <C> <C>
Total revenues $ 155,921 $ 179,092 $ 100,457 $ 150,230
Expenses:
Operating costs 32,764 32,233 25,325 30,014
Real estate and other taxes 13,456 15,655 9,047 12,466
Interest 27,168 32,339 14,309 24,374
Depreciation and amortization 21,366 25,644 12,544 22,228
Provision for doubtful accounts 2,825 2,884 1,675 2,164
General and administrative 2,114 2,849 1,143 2,384
--------- --------- --------- ---------
Total expenses 99,693 111,604 64,043 93,630
Sale of real estate/securities 34 34 (67) (67)
Minority interest (457) (739) -- (624)
--------- --------- --------- ---------
Net income $ 55,805 $ 67,522 $ 36,347 $ 55,909
========= ========= ========= =========
Net income per share:
Basic $ 0.63 $ 0.66 $ 0.62 $ 0.60
========= ========= ========= =========
Diluted $ 0.62 $ 0.64 $ 0.61 $ 0.58
========= ========= ========= =========
</TABLE>
Excel has acquired 22 properties since August 1997 which are reflected
in the pro forma results of operations for the five months ended December 31,
1998 and 1997 above. As previously discussed however, operations of Excel are
included only for the period from the Merger to December 31, 1998. In addition
to the acquisitions Excel has made, the Company has acquired 23 properties since
August 1997.
Historical Comparison
Total revenues increased approximately $55.5 million to $155.9 million,
or 55%. Of the increase, $42.6 million related to additional revenues from Excel
as a result of the Merger. In addition to the Merger, the 23 properties that
were acquired since August 1997 accounted for $9.8 million of the increased
revenues in 1998 when compared to the five-month period ended December 31, 1997.
The remaining $3.1 million increase was primarily a result of net increases in
rentals from the remaining portfolio of properties.
Of the $155.9 million in revenue in 1998, $32.5 million related to the
54 apartment communities and $117.9 million related to the 301-property retail
portfolio (including four office buildings and two vacant land parcels).
Interest, dividend and other income accounted for $5.5 million in revenue. In
1997, $27.2 million of revenue related to the apartment portfolio, $71.6 million
related to the retail portfolio, and $1.7 million related to interest and
dividends.
Total expenses increased $35.7 million to $99.7 million, or 56%. Of the
increase, $27.2 million related to additional expenses from Excel as a result of
the Merger. In addition to the Merger, the properties that were acquired since
August 1997 accounted for $4.8 million of additional expenses, excluding
interest expense. Interest expense of $3.1 million related to the assumption of
25
<PAGE> 28
$56.7 million in mortgage debt from the property acquisitions, and $50.0 million
of additional notes payable. The remaining $0.6 million relates to increased
expenses from the Company's existing portfolio.
Operating costs increased $7.5 million to $32.8 million, of which the
Merger accounted for $6.0 million. The properties acquired since August 1997
accounted for $2.4 million of increases and other properties accounted for a
decrease in operating costs of $0.9 million. Real estate and other taxes
increased $4.5 million to $13.5 million, of which $3.2 million related to Excel
as a result of the Merger, $0.9 million related to the properties acquired since
August 1997 and $0.4 million related to increases on the remaining portfolio.
Interest expense increased $12.9 million to $27.2 million, of which $9.8 million
related to the Merger and $3.1 million related to additional debt as described
above. Depreciation and amortization increased $8.9 million to $21.4 million, of
which $6.9 million related to the Merger and the remaining $2.0 million related
to the properties acquired since August 1997. Finally, provision for doubtful
accounts increased $1.1 million to $2.8 million, of which $0.4 million related
to the Merger, and general and administrative costs increased $1.0 million, of
which $0.9 million related to the Merger.
Pro Forma Comparison
On a pro forma basis, total revenues increased $28.9 million to $179.1
million, or 19%. Of this increase, $28.2 million relates to the acquisition of
45 properties since August 1997. Also in 1997, the Company recognized income
from its equity investment in EDV in the amount of $1.8 million compared to a
loss in 1998 of $1.1 million which is included in the expenses below. The
remaining difference in revenue between the periods is $2.5 million and is
primarily a result of net increases in rentals from the remaining portfolio of
properties.
On a pro forma basis, total expenses increased $18.0 million to $111.6
million, or 19%. Properties acquired since August 1997 accounted for $17.3
million, including increased interest expense from Excel of $3.1 million,
primarily related to additional debt related to acquisitions. General and
administrative expenses increased $0.5 million on a pro forma basis, but
remained 1.6% of total revenues. Also in 1998, a $1.1 million loss was
recognized from the Company's investment in EDV. The remaining difference is a
net decrease of $0.9 million, which primarily relates to the Company's remaining
portfolio of properties.
Fiscal Year Ended July 31, 1998 Compared to Fiscal Year Ended July 31, 1997
In fiscal 1998, total revenues increased $43.5 million to $250.3
million, or 21%. The increase was in rental income and related revenues and came
from all categories of properties. Interest and dividend income decreased
approximately $0.8 million because of lower average investment balances.
Expenses increased $29.8 million to $159.6 million, or 23%. Operating
costs, real estate and other taxes, and depreciation and amortization increased
primarily because of property acquisitions. Interest expense increased $8.6
million to $36.8 million, primarily due to a higher level of outstanding
unsecured notes and mortgage debt during fiscal 1998. The increase in the
provision for doubtful accounts reflects a larger revenue base and a higher
level of receivables. Administrative expenses as a percentage of revenue
remained constant at 1.1% of revenue compared to fiscal 1997.
26
<PAGE> 29
Fiscal Year Ended July 31, 1997 Compared to Fiscal Year Ended July 31, 1996
In fiscal 1997, total revenues increased $39.2 million to $206.8
million, or 23%. The increase was in rental income and related revenues and came
from properties in the portfolio which were acquired in fiscal 1997 or were
owned for less than a full year in fiscal 1996. Interest and dividend income
decreased slightly.
Expenses increased $32.3 million to $129.8 million, or 33%. Operating
costs, real estate and other taxes, and depreciation and amortization increased
primarily because of property acquisitions. Interest expense increased $10.7
million to $28.3 million due to a higher level of outstanding debt during fiscal
1997. The increase in the provision for doubtful accounts reflects a larger
revenue base and a higher level of receivables. Administrative expenses as a
percentage of revenue declined to 1.1% from 1.6% due to increased revenue from
newly acquired properties; these costs do not increase in direct proportion to
revenue due to economies of scale. Income before (loss)/gain on sale of
properties and securities increased $6.9 million to $77 million. During fiscal
1997, three former Nichols stores, in Annville and Hanover, Pennsylvania and
Lumberton, North Carolina, were sold.
Funds From Operations
The Company calculates funds from operations ("FFO") as net income
attributable to common shareholders on a diluted basis before gain or loss on
sales of real estate and securities, plus depreciation and amortization on real
estate and amortized leasing commission costs, and other non-recurring items.
FFO is not a substitute for cash flows from operations or net income as defined
by generally accepted accounting principles, and may not be comparable to other
similarly titled measures of other REITs. FFO is presented because industry
analysts and the Company consider FFO to be an appropriate supplemental measure
of performance of REITs. The following information is included to show the items
included in the Company's FFO for the past three years (in thousands, except per
share amounts):
27
<PAGE> 30
<TABLE>
<CAPTION>
FIVE MONTHS
FIVE MONTHS ENDED
ENDED DECEMBER 31, YEAR ENDED
DECEMBER 31, 1997 JULY 31, YEAR ENDED YEAR ENDED
1998 (UNAUDITED) 1998 JULY 31, JULY 31,
------------ ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
Net income $ 55,805 $ 36,347 $ 90,573 $ 77,037 $ 70,521
Preferred dividends (6,914) (2,437) (5,850) (461) --
Minority interest 457 -- -- -- --
------------ ------------ ------------ ------------ ------------
Net income applicable to common
shareholders - diluted 49,348 33,910 84,723 76,576 70,521
(Gains)/loss on real estate and
securities (34) 67 41 3 (399)
Depreciation and amortization 21,366 12,544 31,622 25,006 20,004
------------ ------------ ------------ ------------ ------------
Funds from operations $ 70,680 $ 46,521 $ 116,386 $ 101,585 $ 90,126
============ ============ ============ ============ ============
Weighted average of common shares
outstanding - diluted 79,396 59,720 59,774 58,735 56,642
============ ============ ============ ============ ============
</TABLE>
On a pro forma basis, FFO would have been $190,953, $83,974 and $72,318
for the twelve months ended December 31, 1998, the five months ended December
31, 1998 and 1997, had the Merger been consummated on August 1, 1998 and 1997,
respectively.
ECONOMIC CONDITIONS
The majority of the Company's leases contain provisions designed to
mitigate the adverse impact of inflation. Such provisions include clauses
enabling the Company to receive percentage rents which generally increase as
prices rise, and/or escalation clauses which are typically related to increases
in the consumer price index or similar inflation indices. In addition, the
Company believes that many of its existing lease rates are below current market
levels for comparable space and that upon renewal or re-rental such rates may be
increased to current market rates. This belief is based upon an analysis of
relevant market conditions, including a comparison of comparable market rental
rates, and upon the fact that many of such leases have been in place for a
number of years and may not contain escalation clauses sufficient to match the
increase in market rental rates over such time. Most of the Company's leases
require the tenant to pay its share of operating expenses, including common area
maintenance, real estate taxes and insurance, thereby reducing the Company's
exposure to increases in costs and operating expenses resulting from inflation.
In addition, the Company periodically evaluates its exposure to interest rate
fluctuations, and may enter into interest rate protection agreements which
mitigate, but do not eliminate, the effect of changes in interest rates on its
floating rate loans.
Many regions of the United States, including regions in which the
Company owns property, may experience economic recessions. Such recessions, or
other adverse changes in general or local economic conditions, could result in
the inability of some existing tenants of the Company to meet their lease
obligations and could otherwise adversely affect the Company's ability to
attract or retain tenants. The Company's shopping centers are typically anchored
by discount department stores, supermarkets and drug
28
<PAGE> 31
stores which usually offer day-to-day necessities rather than high priced luxury
items. These types of tenants, in the experience of the Company, generally
continue to maintain their volume of sales despite a slowdown in economic
conditions.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
As of December 31, 1998, the Company had approximately $170.4 million
of outstanding floating rate debt. The Company does not believe that the
interest rate risk represented by its floating rate debt is material as of that
date in relation to the approximately $1.1 billion of outstanding total debt of
the Company, the approximately $2.9 billion of total assets of the Company and
the approximately $2.0 billion market capitalization of the Company's common
stock as of that date.
The Company was not a party to any hedging agreements with respect to
its floating rate debt as of December 31, 1998. In the event of a significant
increase in interest rates, the Company would consider entering into hedging
agreements with respect to all or a portion of its floating rate debt. Although
hedging agreements would enable the Company to convert floating rate liabilities
into fixed rate liabilities, such agreements would expose the Company to the
risk that the counterparties to such hedge agreements may not perform, which
could increase the Company's exposure to rising interest rates. Generally,
however, the counterparties to hedging agreements that the Company would enter
into would be major financial institutions. The Company may borrow additional
money with floating interest rates in the future. Increases in interest rates,
or the loss of the benefits of any hedging agreements that the Company may enter
into in the future, would increase the Company's interest expense, which would
adversely affect cash flow and the ability of the Company to service its debt.
If the Company enters into any hedging agreements in the future, decreases in
interest rates thereafter would increase the Company's interest expense as
compared to the underlying floating rate debt and could result in the Company
making payments to unwind such agreements.
As of December 31, 1998, the Company had notes receivable in the total
amount of approximately Canadian $16 million (approximately U.S. $10.4 million
as of December 31, 1998). The Company does not believe that the foreign currency
exchange risk associated with these loans is material. The Company had no other
material exposure to market risk (including foreign currency exchange risk,
commodity price risk or equity price risk) as of December 31, 1998.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
Financial statements required by this item appear with an Index to
Financial Statements and Schedules, starting on page F-1 of this report.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
Not applicable.
29
<PAGE> 32
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The information required by this item is hereby incorporated by
reference to the material appearing in the Proxy Statement for the Annual
Stockholders Meeting to be held in 1999 (the "Proxy Statement") under the
captions "Proposal 1 Election of Directors," "Executive Compensation and Other
Information" and "Other Matters--Section 16(a) Beneficial Ownership Reporting
Compliance."
ITEM 11. EXECUTIVE COMPENSATION
The information required by this item is hereby incorporated by
reference to the material appearing in the Proxy Statement under the caption
"Executive Compensation and Other Information."
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The information required by this item is hereby incorporated by
reference to the material appearing in the Proxy Statement under the caption
"Voting Securities and Certain Beneficial Owners and Management."
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information required by this item is hereby incorporated by
reference to the material appearing in the Proxy Statement under the caption
"Certain Relationships and Related Transactions."
30
<PAGE> 33
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a) Consolidated Financial Statements. The following documents are
filed as a part of this report:
The response to this portion of Item 14 is submitted as a separate
section of this report.
(b) Reports on Form 8-K filed during the three months ended
December 31, 1998.
1. Form 8-K dated October 13, 1998 containing items 2, 7
and 8.
(c) Exhibits. The following documents are filed as exhibits to
this report:
*3.1 Articles of Amendment and Restatement of the Charter of the
Company filed as Exhibit 3.01 to Amendment No. 1 to the
Company's Registration Statement on Form S-3, File No.
33-59195, on May 25, 1995.
*3.2 Articles of Amendment of Articles of Amendment and Restatement
of the Charter of the Company filed as Exhibit 4.4 to the
Company's Registration Statement on Form S-3, File No.
333-65211, on October 1, 1998.
*3.3 Amended and Restated Bylaws of the Company filed as Exhibit
4.6 to the Company's Registration Statement on Form S-3, File
No. 333-65211, on October 1, 1998.
*4.1 Articles Supplementary classifying 4,600,000 shares of
preferred stock as 8 1/2% Series A Cumulative Convertible
Preferred Stock filed as Exhibit 4.01 to the Company's Current
Report on Form 8-K dated February 7, 1997.
*4.2 Articles Supplementary classifying 690,000 shares of preferred
stock as 8 5/8% Series B Cumulative Redeemable Preferred Stock
filed as Exhibit 4.02 to the Company's Current Report on Form
8-K dated January 14, 1998.
4.3 Articles Supplementary relating to the Series C Junior
Participating Preferred Stock of the Company, which may in the
future be issued under the Company's Rights Plan.
*4.4 Articles Supplementary classifying 150,000 shares of preferred
stock as 7.80% Series D Cumulative Voting Step-Up Premium Rate
Preferred Stock filed as Exhibit 4.5 to the Company's
Registration Statement on Form S-3, File No. 333-65211, on
October 1, 1998.
*10.1 Tennessee General Partnership Agreement, dated as of October
13, 1992, between Horne Properties, Inc. and the Company filed
as Exhibit 10.2A to Amendment No. 1 to the Company's
Registration Statement on Form S-11, File No. 33-63160, on
July 12, 1993.
*10.2 Tennessee General Partnership Agreement to create Horne &
Excel Properties (Chapman), dated as of December 30, 1992,
between Horne Properties, Inc. and
31
<PAGE> 34
the Company, filed as Exhibit 10.2B to Amendment No. 1 to the
Company's Registration Statement on Form S-11, File No.
33-63160, on July 12, 1993.
*10.3 Amended and Restated 1993 Stock Option Plan of the Company
filed as Exhibit 4.1 to the Company's Registration Statement
on Form S-8, File No. 333-65223, on October 1, 1998.
10.4 Amendment to the 1993 Stock Option Plan of the Company
(Amended and Restated May 28, 1998), dated September 28, 1998.
10.5 Amendment to the 1993 Stock Option Plan of the Company
(Amended and Restated May 28, 1998), dated February 8, 1999.
*10.6 Form of Incentive Stock Option Agreement under the Company's
1993 Stock Option Plan filed as Exhibit 10.11 to the Company's
Registration Statement on Form S-11, File No. 33-63160, on May
21, 1993.
*10.7 Form of Non-Qualified Stock Option Agreement under the
Company's 1993 Stock Option Plan filed as Exhibit 10.12 to the
Company's Registration Statement on Form S-11, File No.
33-63160, on May 21, 1993.
10.8 1994 Directors' Stock Option Plan of the Company (Amended and
Restated May 10, 1996).
10.9 Amendment to the 1994 Directors' Stock Option Plan of the
Company (Amended and Restated May 10, 1996), dated September
28, 1998.
*10.10 Form of Stock Option Agreement under the 1994 Directors' Stock
Plan of the Company filed as Exhibit 4.2 to the Company's
Registration Statement on Form S-8, File No. 333-02329 on
April 8, 1996.
*10.11 New Plan Realty Trust 1997 Stock Option Plan filed as Exhibit
4.1 to the Company's Registration Statement on Form S-8, File
No. 333-65221, on October 1, 1998.
*10.12 New Plan Realty Trust 1991 Stock Option Plan, as amended,
filed as Exhibit 4.2 to the Company's Registration Statement
on Form S-8, File No. 333-65221, on October 1, 1998.
*10.13 Amended and Restated New Plan Realty Trust 1985 Incentive
Stock Option Plan filed as Exhibit 4.3 to the Company's
Registration Statement on Form S-8, File No. 333-65221, on
October 1, 1998.
*10.14 New Plan Realty Trust March 1991 Stock Option Plan and
Non-Qualified Stock Option Plan filed as Exhibit 4.4 to the
Company's Registration Statement on Form S-8, File No.
333-65221, on October 1, 1998.
*10.15 Agreement of Limited Partnership of EH Properties, L.P., dated
as of March 25, 1994, by and between the Company and Horne
Properties, Inc., together with any other Persons who become
Partners in the Partnership as provided therein, filed as
Exhibit 10.37 to the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1994.
32
<PAGE> 35
*10.16 Partnership Contribution Closing Agreement, dated as of March
28, 1994, by and between Horne Properties, Inc., the Company
and EH Properties, L.P. filed as Exhibit 10.38 to the
Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1994.
*10.17 Master Agreement, dated as of January 1, 1995, by and among
the Company and the limited partnerships named therein filed
as Exhibit 10.45 to the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1994.
*10.18 Closing Memorandum, dated as of January 20, 1995, by and among
the Company and the limited partnerships named therein filed
as Exhibit 10.46 to the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1994.
*10.19 Agreement, dated January 20, 1995, by and among the Company
and the limited partnerships named therein filed as Exhibit
10.47 to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1994.
*10.20 Indenture, dated as of May 8, 1995, between the Company and
State Street Bank and Trust Company of California, N.A. (as
successor to the First National Bank of Boston) filed as
Exhibit 4.01 to the Company's Registration Statement on Form
S-3, File No. 33-59195, as amended, on May 9, 1995.
*10.21 First Supplemental Indenture, dated as of April 4, 1997,
between the Company and State Street Bank and Trust Company of
California, N.A. filed as Exhibit 4.02 to the Company's
Registration Statement on Form S-3, File No. 333-24615, as
amended, on April 4, 1997.
*10.22 Second Supplemental Indenture, dated as of July 3, 1997,
between the Company and State Street Bank and Trust Company of
California, N.A. filed as Exhibit 4.01 to the Company's
Current Report on Form 8-K dated July 3, 1997.
*10.23 Amended and Restated Agreement of Limited Partnership of Excel
Realty Partners, L.P., dated as of June 25, 1997, filed as
Exhibit 10.20 to the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1997.
*10.24 Contribution Agreement by and between each of the partnerships
named therein and Excel Realty Partners, L.P. filed as Exhibit
10.33 to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1995.
*10.25 Contribution Agreement, dated as of June 20, 1997, among Excel
Realty Partners, L.P., Briggsmore Plaza Co., G&H Associates,
Montebello Plaza Co. and Paradise Plaza Co. filed as Exhibit
10.01 to the Company's Current Report on Form 8-K dated July
3, 1997.
10.26 Credit Agreement, dated as of November 21, 1997, by and among
New Plan Realty Trust, the Lenders party thereto and The Bank
of New York, as agent.
*10.27 Assignment and Assumption Agreement dated December 1, 1997 by
and among New Plan Realty Trust, Bank Hapoalim B.M. and The
Bank of New York filed as Exhibit 10.2 to the Annual Report on
Form 10-K of New Plan Realty Trust for the fiscal year ended
July 31, 1998.
33
<PAGE> 36
*10.28 Waiver and Amendment to Credit Agreement, dated as of
September 25, 1998 by and among New Plan Realty Trust, the
Lenders party thereto and The Bank of New York, as agent,
filed as Exhibit 10.3 to the Annual Report on Form 10-K of
New Plan Realty Trust for the fiscal year ended July 31, 1998.
*10.29 Assumption and Substitution Agreement, dated as of September
28, 1998 by and among the Company, New Plan Realty Trust, the
Lenders party thereto and The Bank of New York, as agent,
filed as Exhibit 10.4 to the Annual Report on Form 10-K of
New Plan Realty Trust for the fiscal year ended July 31, 1998.
10.30 First Amended and Restated Revolving Credit Agreement, dated
as of March 31, 1998, among the Company, BankBoston, N.A., the
Other Banks which are or may become parties to the Agreement
and BankBoston, N.A., as agent.
*10.31 Distribution Agreement, dated as of March 31, 1998, by and
among the Company, ERT Development Corporation and Excel
Legacy Corporation filed as Exhibit 2.1 to the Company's
Current Report on Form 8-K dated April 2, 1998.
*10.32 Administrative Services Agreement, dated as of March 31, 1998,
by and between the Company and Excel Legacy Corporation, filed
as Exhibit 10.1 to the Company's Current Report on Form 8-K
dated April 2, 1998.
*10.33 Intercompany Agreement, dated as of March 31, 1998, by and
between the Company and Excel Legacy Corporation, filed as
Exhibit 10.2 to the Company's Current Report on Form 8-K dated
April 2, 1998.
*10.34 Tax Sharing Agreement, dated as of March 31, 1998, by and
between the Company and Excel Legacy Corporation, filed as
Exhibit 10.3 to the Company's Current Report on Form 8-K dated
April 2, 1998.
*10.35 Transitional Services Agreement, dated as of March 31, 1998,
by and between the Company and Excel Legacy Corporation, filed
as Exhibit 10.4 to the Company's Current Report on Form 8-K
dated April 2, 1998.
*10.36 Agreement and Plan of Merger, dated May 14, 1998, as amended
as of August 7, 1998, among the Company, ERT Merger Sub, Inc.
and New Plan Realty Trust, filed as Exhibit 2.1 to the
Company's Registration Statement on Form S-4, File No.
333-61131, dated August 11, 1998.
*10.37 Rights Agreement, dated as of May 15, 1998, between the
Company and BankBoston, N.A., filed as Exhibit 4 to the
Company's Report on Form 8-A dated May 22, 1998.
*10.38 Senior Securities Indenture, dated as of February 3, 1999,
among the Company, New Plan Realty Trust, as guarantor, and
State Street Bank and Trust Company, as Trustee, filed as
Exhibit 4.1 to the Company's Current Report on Form 8-K dated
February 3, 1999.
10.39 Employment Agreement, dated as of September 17, 1998, by and
between the Company and William Newman.
34
<PAGE> 37
*10.40 Employment Agreement, dated as of May 14, 1998, by and between
the Company and Arnold Laubich, filed as Exhibit 10.1 to the
Company's Registration Statement on Form S-4, File No.
333-61131, dated August 11, 1998.
*10.41 Employment Agreement, dated as of May 14, 1998, by and between
the Company and Gary B. Sabin, filed as Exhibit 10.2 to the
Company's Registration Statement on Form S-4, File No.
333-61131, dated August 11, 1998.
10.42 First Amendment to Employment Agreement, dated as of September
25, 1998, by and between the Company and Gary B. Sabin.
10.43 Employment Agreement, dated as of September 25, 1998, by and
between the Company and James M. Steuterman.
10.44 Employment Agreement, dated as of September 25, 1998, by and
between the Company and Richard B. Muir.
10.45 Employment Agreement, dated as of September 25, 1998, by and
between the Company and Steven F. Siegel.
*10.46 Support Agreement, dated as of May 14, 1998, by William Newman
to the Company, filed as Exhibit 10.7 to the Company's
Registration Statement on Form S-4, File No. 333-61131, dated
August 11, 1998.
*10.47 Support Agreement, dated as of May 14, 1998, by Arnold Laubich
to the Company, filed as Exhibit 10.5 to the Company's
Registration Statement on Form S-4, File No. 333-61131, dated
August 11, 1998.
*10.48 Support Agreement, dated as of May 14, 1998, by Gary B. Sabin
to the Company, filed as Exhibit 10.6 to the Company's
Registration Statement on Form S-4, File No. 333-61131, dated
August 11, 1998.
10.49 Unconditional Guaranty of Payment and Performance, dated as of
January 13, 1999, by the Company.
12 Ratio of Earnings to Fixed Charges.
21 Subsidiaries of the Registrant.
23 Consent of PricewaterhouseCoopers LLP.
27(1) Financial Data Schedule.
- ----------
*Incorporated herein by reference as above indicated.
(1) Filed as exhibit to electronic filing only.
35
<PAGE> 38
(d) Financial Statement Schedules. The following documents are
filed as a part of this report:
The response to this portion of Item 14 is submitted as a separate
section of this report.
36
<PAGE> 39
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
----------
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
1. CONSOLIDATED FINANCIAL STATEMENTS:
Report of Independent Accountants................................................F-2
Consolidated Balance Sheets
December 31, 1998, July 31, 1998, and July 31, 1997...........................F-3
Consolidated Statements of Income for the Five Months Ended
December 31, 1998 and the Twelve Months Ended
July 31, 1998, 1997, and 1996.................................................F-4
Consolidated Statements of Changes in Stockholders' Equity for the Five
Months Ended December 31, 1998 and the Twelve Months Ended
July 31, 1998, 1997, and 1996.................................................F-5
Consolidated Statements of Cash Flows for the Five Months Ended
December 31, 1998 and the Twelve Months Ended
July 31, 1998, 1997, and 1996.................................................F-6
Notes to Consolidated Financial Statements.......................................F-7
2. CONSOLIDATED FINANCIAL STATEMENT SCHEDULES:
Schedule II - Valuation and Qualifying Accounts.................................F-23
Schedule III - Real Estate and Accumulated Depreciation.........................F-24
Schedule IV - Mortgage Loans on Real Estate.....................................F-50
</TABLE>
F-1
<PAGE> 40
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Stockholders
of New Plan Excel Realty Trust, Inc.
In our opinion, the consolidated financial statements listed in the accompanying
index present fairly, in all material respects, the financial position of New
Plan Excel Realty Trust, Inc. and subsidiaries as of December 31, 1998, July 31,
1998 and July 31, 1997, and the results of their operations and their cash flows
for the five months ended December 31, 1998 and for each of the three years in
the period ended July 31, 1998 in conformity with generally accepted accounting
principles. In addition, in our opinion, the financial statement schedules
listed in the accompanying index present fairly, in all material respects, the
information set forth therein when read in conjunction with the related
consolidated financial statements. These financial statements and financial
statement schedules are the responsibility of the Company's management; our
responsibility is to express an opinion on these financial statements and
financial statement schedules based on our audits. We conducted our audit of
these financial statements and financial statement schedules in accordance with
generally accepted auditing standards which require that we plan and perform the
audit to obtain reasonable assurance about whether the financial statements are
free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements,
assessing the accounting principles used and significant estimates made by
management and evaluating the overall financial statement presentation. We
believe that our audits provide a reasonable basis for the opinion expressed
above.
PricewaterhouseCoopers, LLP
San Diego, California
March 2, 1999
F-2
<PAGE> 41
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
----------
<TABLE>
<CAPTION>
DECEMBER 31, JULY 31, JULY 31,
1998 1998 1997
----------- ----------- -----------
<S> <C> <C> <C>
ASSETS
Real estate:
Land $ 545,400 $ 272,176 $ 232,502
Buildings and improvements 2,280,069 1,180,562 1,045,273
Accumulated depreciation (158,021) (136,978) (105,866)
----------- ----------- -----------
Net real estate 2,667,448 1,315,760 1,171,909
Cash and cash equivalents 13,951 26,284 42,781
Marketable securities 1,700 1,787 2,034
Receivables:
Trade, less allowance for bad debts of $11,636, $7,926 and $5,581
at December 31 and July 31, 1998 and 1997, respectively 23,422 14,025 12,035
Other 16,621 1,376 1,464
Mortgage and notes receivable 150,123 13,878 23,107
Prepaid expenses and deferred charges 6,181 7,823 5,000
Other assets 15,100 3,592 2,814
----------- ----------- -----------
$ 2,894,546 $ 1,384,525 $ 1,261,144
=========== =========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
Liabilities:
Mortgages payable, including unamortized premium of $12,345,
$0 and $0 at December 31 and July 31, 1998 and
July 31, 1997, respectively $ 388,185 $ 114,099 $ 65,573
Notes payable, net of unamortized discount of $1,141, $1,211 and
$1,366 at December 31 and July 31, 1998 and July 31, 1997,
respectively 489,235 462,789 412,634
Credit facilities 200,500 -- --
Capital leases 27,351 -- --
Other liabilities 45,909 37,520 33,359
Tenant security deposits 7,141 5,590 4,623
----------- ----------- -----------
Total liabilities 1,158,321 619,998 516,189
----------- ----------- -----------
Minority interest in partnership 40,651 -- --
----------- ----------- -----------
Commitments and contingencies -- -- --
Stockholders' equity:
Preferred stock, $.01 par value, 25,000 shares authorized: 4,600 shares
designated as 8 1/2% Series A Cumulative Convertible Preferred, 2,124, 0,
and 0 shares outstanding at December 31 and July 31, 1998, and July 31,
1997, respectively; 6,300 depository shares, each representing 1/10 of
one share of 8 5/8% Series B Cumulative Redeemable Preferred, 630, 0 and
0 shares outstanding at December 31 and July 31, 1998 and 1997,
respectively; 1,500 depository shares, each representing 1/10 of one
share of Series D Cumulative Voting Step-Up Premium Rate Preferred, 150
shares outstanding at December 31 and July 31 1998 and July 31, 1997 29 72,775 72,775
Common stock, $.01 par value, 250,000 shares authorized;
88,384, 0 , and 0 shares issued and outstanding as of
December 31 and July 31, 1998 and July 31, 1997, respectively 884 -- --
Shares of beneficial interest, no par value; 0, 0 and 59,874
shares outstanding at December 31 and July 31, 1998 and
July 31, 1997, respectively -- 759,853 738,011
Additional paid-in capital 1,735,207 -- --
Loans receivable for purchase of shares of beneficial interest (2,022) (2,306) (2,814)
Accumulated other comprehensive income 726 813 1,057
Accumulated distributions in excess of net income (39,250) (66,608) (64,074)
----------- ----------- -----------
Total stockholders' equity 1,695,574 764,527 744,955
----------- ----------- -----------
$ 2,894,546 $ 1,384,525 $ 1,261,144
=========== =========== ===========
</TABLE>
The accompanying notes are an integral part
of the financial statements.
F-3
<PAGE> 42
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME AND COMPREHENSIVE INCOME
FOR THE FIVE MONTHS ENDED DECEMBER 31, 1998 AND
THE TWELVE MONTHS ENDED JULY 31, 1998, 1997, AND 1996
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
----------
<TABLE>
<CAPTION>
DECEMBER 31, JULY 31, JULY 31, JULY 31,
1998 1998 1997 1996
------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
Revenues:
Rental income and related revenues $ 150,411 $ 246,309 $ 202,093 $ 162,821
Interest, dividend and other income 5,510 3,950 4,728 4,785
------------ ------------ ------------ ------------
Total revenues 155,921 250,259 206,821 167,606
------------ ------------ ------------ ------------
Expenses:
Operating costs 32,764 61,417 52,584 39,531
Real estate and other taxes 13,456 22,850 18,449 15,788
Interest 27,168 36,815 28,256 17,561
Depreciation and amortization 21,366 31,622 25,006 20,004
Provision for doubtful accounts 2,825 4,171 3,283 1,984
General and administrative 2,114 2,770 2,203 2,616
------------ ------------ ------------ ------------
Total expenses 99,693 159,645 129,781 97,484
------------ ------------ ------------ ------------
Income before real estate sales and
minority interest 56,228 90,614 77,040 70,122
Gain (loss) on sale of real estate and securities 34 (41) (3) 399
Minority interest in income of partnership (457) -- -- --
------------ ------------ ------------ ------------
Net income 55,805 90,573 77,037 70,521
Unrealized gain (loss) on securities reported (87) (244) 414 461
------------ ------------ ------------ ------------
Comprehensive income $ 55,718 $ 90,329 $ 77,451 $ 70,982
============ ============ ============ ============
Basic earnings per share $ 0.63 $ 1.43 $ 1.31 $ 1.25
============ ============ ============ ============
Diluted earnings per share $ 0.62 $ 1.42 $ 1.30 $ 1.25
============ ============ ============ ============
</TABLE>
The accompanying notes are an integral part of the
financial statements.
F-4
<PAGE> 43
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY
FOR THE FIVE MONTHS ENDED DECEMBER 31, 1998 AND
THE TWELVE MONTHS ENDED JULY 31, 1998, 1997, AND 1996
(IN THOUSANDS)
----------
<TABLE>
<CAPTION>
SHARES OF BENEFICIAL
INTEREST/
PREFERRED STOCK COMMON STOCK NOTES
NUMBER AMOUNT NUMBER AMOUNT RECEIVABLE
----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C>
Balance at July 31, 1995 -- $ -- 53,262 $ 622,562 $ (3,370)
Net income -- -- -- -- --
Dividends paid -- -- -- -- --
Dividend reinvestment -- -- 738 15,126 --
Exercise of stock options -- -- 9 165 --
Repayment of loans -- -- -- -- 286
Unrealized holding gain on marketable securities -- -- -- -- --
Issuance of preferred shares -- -- 4,060 81,227 --
----------- ----------- ----------- ----------- -----------
Balance at July 31, 1996 -- $ -- 58,069 $ 719,080 $ (3,084)
Net income -- -- -- -- --
Dividends paid -- -- -- -- --
Dividend reinvestment -- -- 750 16,475 --
Exercise of stock options -- -- 115 2,456 --
Repayment of loans -- -- -- -- 270
Unrealized holding gain on marketable securities- -- -- -- -- --
Issuance of preferred shares 150 72,775 -- -- --
----------- ----------- ----------- ----------- -----------
Balance at July 31, 1997 150 72,775 58,934 738,011 (2,814)
Net income -- -- -- -- --
Dividends paid -- -- -- -- --
Dividend reinvestment -- -- 765 18,197 --
Exercise of stock options -- -- 175 3,645 --
Repayment of loans -- -- -- -- 508
Accumulated other comprehensive income -- -- -- -- --
----------- ----------- ----------- ----------- -----------
Balance at July 31, 1998 150 72,775 59,874 759,853 (2,306)
Net income -- -- -- -- --
Dividends paid -- -- -- -- --
Dividend reinvestment -- -- 235 4,373 --
Repayment of loans -- -- -- -- 284
Merger transactions 2,755 (72,746) 28,275 (763,342) --
Unrealized holding loss on marketable securities -- -- -- -- --
----------- ----------- ----------- ----------- -----------
Balance at December 31, 1998 2,905 $ 29 88,384 $ 884 $ (2,022)
=========== =========== =========== =========== ===========
</TABLE>
<TABLE>
<CAPTION>
ACCUMULATED ACCUMULATED
ADDITIONAL OTHER DISTRIBUTIONS TOTAL
PAID-IN COMPREHENSIVE IN EXCESS OF STOCKHOLDERS'
CAPITAL INCOME NET INCOME EQUITY
----------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
Balance at July 31, 1995 $ -- $ 182 $ (48,845) $ 570,529
Net income -- -- 70,521 70,521
Dividends paid -- -- (78,962) (78,962)
Dividend reinvestment -- -- -- 15,126
Exercise of stock options -- -- -- 165
Repayment of loans -- -- -- 286
Unrealized holding gain on marketable securities -- 461 -- 461
Issuance of preferred shares -- -- -- 81,227
----------- ----------- ----------- -----------
Balance at July 31, 1996 $ -- $ 643 $ (57,286) $ 659,353
Net income -- -- 77,037 77,037
Dividends paid -- -- (83,825) (83,825)
Dividend reinvestment -- -- -- 16,475
Exercise of stock options -- -- -- 2,456
Repayment of loans -- -- -- 270
Unrealized holding gain on marketable securities- -- 414 -- 414
Issuance of preferred shares -- -- -- 72,775
----------- ----------- ----------- -----------
Balance at July 31, 1997 -- 1,057 (64,074) 744,955
Net income -- -- 90,573 90,573
Dividends paid -- -- (93,107) (93,107)
Dividend reinvestment -- -- -- 18,197
Exercise of stock options -- -- -- 3,645
Repayment of loans -- -- -- 508
Accumulated other comprehensive income -- (244) -- (244)
----------- ----------- ----------- -----------
Balance at July 31, 1998 -- 813 (66,608) 764,527
Net income -- -- 55,805 55,805
Dividends paid -- -- (28,447) (28,447)
Dividend reinvestment -- -- -- 4,373
Repayment of loans -- -- -- 284
Merger transactions 1,735,207 -- -- 899,119
Unrealized holding loss on marketable securities -- (87) -- (87)
----------- ----------- ----------- -----------
Balance at December 31, 1998 $ 1,735,207 $ 726 $ (39,250) $ 1,695,574
=========== =========== =========== ===========
</TABLE>
The accompanying notes are an integral part of the financial statements.
F-5
<PAGE> 44
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE FIVE MONTHS ENDED DECEMBER 31, 1998 AND
THE TWELVE MONTHS ENDED JULY 31, 1998, 1997, AND 1996
(IN THOUSANDS)
----------
<TABLE>
<CAPTION>
DECEMBER 31 JULY 31, JULY 31, JULY 31,
1998 1998 1997 1996
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
Cash flows from operating activities:
Net income $ 55,805 $ 90,573 $ 77,037 $ 70,521
Adjustments to reconcile net income to net cash
provided by operations:
Depreciation and amortization 21,366 31,622 25,006 20,004
Provision for bad debts 2,825 4,171 3,283 1,984
(Gain) loss on sale of properties, net (34) 67 10 (540)
(Gain) loss on sale of securities, net -- (26) (7) 141
Minority interest in income of partnership 457 -- -- --
Equity in loss of affiliate 1,123 -- -- --
Cash received in connection with the Merger 4,892 -- -- --
Changes in operating assets and liabilities, net:
Change in trade and notes receivable (6,673) (6,161) (3,733) (6,706)
Change in other receivables (13,257) 88 (355) 13
Change in other liabilities (18,076) 4,161 3,475 8,239
Change in net sundry assets and liabilities 3,152 (2,988) 605 (250)
----------- ----------- ----------- -----------
Net cash provided by operating activities 51,580 121,507 105,321 93,406
----------- ----------- ----------- -----------
Cash flows from investing activities:
Real estate acquisitions and building improvements (34,959) (123,036) (282,607) (186,008)
Proceeds from real estate sales 329 (67) 3,862 3,474
Advances for notes receivable, net (26,948) -- -- --
Repayments of mortgage notes receivable 479 9,229 491 821
Sales of marketable securities -- 29 484 4,274
Purchases of marketable securities -- (1) (2) --
----------- ----------- ----------- -----------
Net cash used in investing activities (61,099) (113,846) (277,772) (177,439)
----------- ----------- ----------- -----------
Cash flows from financing activities:
Proceeds from mortgages and notes payable 135,500 50,000 235,144 29,500
Principal payments of mortgages and notes payable (113,427) (3,401) (32,362) (10,898)
Distributions paid (28,934) (93,107) (83,825) (78,962)
Minority interest distributions paid (910) -- -- --
Issuance of preferred stock -- -- 72,775 --
Issuance of common stock/beneficial interest 4,673 21,842 18,931 96,518
Repayment of loans receivable for the purchase of
common stock 284 508 269 286
----------- ----------- ----------- -----------
Net cash (used in) provided by financing
activities (2,814) (24,158) 210,932 36,444
----------- ----------- ----------- -----------
Net increase (decrease) in cash and cash
equivalents (12,333) (16,497) 38,481 (47,589)
Cash and cash equivalents at beginning of year 26,284 42,781 4,300 51,889
----------- ----------- ----------- -----------
Cash and cash equivalents at end of year $ 13,951 $ 26,284 $ 42,781 $ 4,300
=========== =========== =========== ===========
</TABLE>
The accompanying notes are an integral part of the
financial statements.
F-6
<PAGE> 45
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
----------
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
ORGANIZATION
Excel Realty Trust, Inc. ("Excel") was formed in 1985 and subsequently
reincorporated as a Maryland corporation. New Plan Realty Trust (the
"Trust") was organized in 1972 as a Massachusetts business trust. On
September 28, 1998, Excel and the Trust consummated a merger pursuant to
an Agreement and Plan of Merger dated as of May 14, 1998, as amended as of
August 7, 1998 (the "Merger Agreement"), whereby ERT Merger Sub, Inc., a
wholly owned subsidiary of Excel, was merged with and into the Trust with
the Trust surviving as a wholly owned subsidiary of Excel (the "Merger").
The Merger was approved by the stockholders of Excel and the shareholders
of the Trust at special meetings held on September 25, 1998. In connection
with the consummation of the Merger, Excel changed its name to "New Plan
Excel Realty Trust, Inc." (the "Company"). The Company is operated as a
self-administered, self-managed real estate investment trust ("REIT").
CHANGE IN FISCAL YEAR
As discussed in Note 2 below, the Merger has been treated as a purchase by
the Trust of the assets and liabilities of Excel using the purchase method
of accounting in the accompanying consolidated financial statements.
Because the Trust, as the accounting acquiror, had a fiscal year end of
July 31, immediately following the Merger the Company and the Trust
adopted a fiscal year end of December 31, beginning with a short fiscal
year ending on December 31, 1998.
PRINCIPLES OF CONSOLIDATION
The accompanying consolidated financial statements include the accounts of
the Company, its wholly owned subsidiaries and Excel Realty Partners,
L.P., a Delaware limited partnership ("ERP"). All significant intercompany
transactions and balances have been eliminated. The Company uses the
equity method to account for its investment in ERT Development
Corporation, a Delaware corporation ("EDV") (Note 6).
INCOME TAXES
The Company has elected to be treated as a REIT under Sections 856 through
860 of the Internal Revenue Code of 1986. In order to maintain its
qualification as a REIT, among other things, the Company must distribute
at least 95% of its REIT taxable income to its stockholders and meet
certain tests regarding the nature of its income and assets. As a REIT,
the Company is not subject to federal income tax with respect to that
portion of its income which meets certain criteria and is distributed
annually to the stockholders. Accordingly, no provision for federal income
taxes is included in the accompanying consolidated financial statements.
The Company may be subject to tax by certain states that do not recognize
the REIT. Provision for such taxes has been included in real estate and
other taxes.
CASH EQUIVALENTS
Cash equivalents consist of short-term, highly liquid debt instruments
with original maturities of three months or less. Items classified as cash
equivalents include insured bank certificates of deposit and commercial
paper. At times, cash balances at a limited number of banks may exceed
insurable amounts. The Company believes it mitigates its risk by investing
in or through major financial institutions. Recoverability of investments
is dependent upon the performance of the issuer.
Continued F-7
<PAGE> 46
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED
----------
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES, CONTINUED:
REAL ESTATE
Land, buildings and building improvements are recorded at cost.
Depreciation is computed using the straight-line method over estimated
useful lives of 40 years for buildings and 5 to 40 years for building
improvements. Expenditures for maintenance and repairs are charged to
expense as incurred and significant renovations are capitalized.
The Company assesses whether there has been a permanent impairment in the
value of its real estate by comparing its carrying amount to the aggregate
future cash flows. Such cash flows consider factors such as expected
future operating income, trends and prospects, as well as the effects of
demand, competition and other economic factors. Such factors include a
lessee's ability to pay rent under the terms of the lease. If a property
is leased at a significantly lower rent, the Company may recognize a
permanent impairment loss if the income stream is not sufficient to
recover its investment.
DEFERRED LEASING AND LOAN ACQUISITION COSTS
Costs incurred in obtaining tenant leases are amortized on the
straight-line method over the terms of the related leases. Costs incurred
in obtaining long-term financing are amortized and charged to interest
expense over the terms of the related debt agreements.
REVENUE RECOGNITION
Rental revenue is recognized on the straight-line basis, which averages
minimum rents over the terms of the leases. Certain of the leases provide
for additional rental revenue by way of percentage rents to be paid based
upon the level of sales achieved by the lessee. These percentage rents are
recorded on the accrual basis and are included on the Consolidated
Statements of Income in rental income and related revenues. The leases
also typically provide for tenant reimbursement of common area maintenance
and other operating expenses which are also included as rental income and
related revenues.
NET INCOME PER SHARE OF COMMON STOCK
Basic earnings per share ("EPS") is computed by dividing income available
to common stockholders by the weighted average number of common shares
outstanding for the period. Diluted EPS is computed giving effect to all
dilutive potential common shares that were outstanding during the period.
Dilutive potential common shares consist of the incremental common shares
issuable upon the conversion of convertible preferred stock (using the "if
converted" method), exercise of stock options and upon conversion of ERP
limited partnership interests for all periods.
USE OF ESTIMATES
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities at
the date of the financial statements and the reported amounts of revenues
and expenses during the period. Actual results could differ from those
estimates. The most significant assumptions and estimates relate to
depreciable lives, valuation of real estate and the recoverability of
mortgage notes and trade accounts receivables.
Continued F-8
<PAGE> 47
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED
----------
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES, CONTINUED:
RECLASSIFICATIONS
Certain reclassifications have been made to the consolidated financial
statements at July 31, 1998 and 1997, and for the twelve months ended July
31, 1998, 1997 and 1996 in order to conform with the current period's
presentation.
INTERNAL SOFTWARE COSTS
Any costs associated with modifying computer software for Year 2000
compliance are expensed as incurred.
2. MERGER:
As provided in the Merger Agreement, Excel paid a 20% stock dividend prior
to the Merger. In connection with the Merger, each share of beneficial
interest, no par value, of the Trust was converted into one share of
common stock, par value $.01 per share, of the Company, and each 7.8%
Series A Cumulative Step-Up Premium Rate Preferred Share, par value $1.00
per share, of the Trust was converted into one share of 7.8% Series D
Cumulative Voting Step-Up Premium Rate Preferred Stock, par value $.01 per
share, of the Company ("Series D Preferred Stock"). The Company issued an
aggregate of approximately 60,000,000 shares of common stock and 150,000
shares of Series D Preferred Stock (represented by 1,500,000 depositary
shares, each of which represents a one-tenth fractional interest in a
share of Series D Preferred Stock) to the Trust's shareholders in the
Merger.
The Merger has been treated as a purchase by the Trust of the assets and
liabilities of Excel using the purchase method of accounting in the
accompanying consolidated financial statements. This treatment was
applied because the shareholders of the Trust immediately prior to the
Merger owned approximately 65% of the Company common stock outstanding
immediately following the Merger, and the members of the Board of Trustees
of the Trust immediately prior to the Merger comprised nine of 15 members
of the Board of Directors of the Company immediately following the Merger.
As a result of the Merger, the Trust is a wholly owned subsidiary of the
Company.
The accompanying consolidated financial statements reflect the results of
the Trust prior to the Merger and reflect the reverse purchase of the
Company as of September 28, 1998 and the results of operations for the
combined entity from September 28, 1998 to December 31, 1998. In addition,
all information regarding per share information prior to the Merger have
been restated to reflect the conversion of shares of beneficial interest
in the Trust into common stock of the Company. The Trust valued the equity
of the Company (assets net of liabilities) at $899,118,300, based upon the
market value at the execution of the Merger Agreement of Trust shares of
beneficial interest into which outstanding Excel shares of common stock
could be converted. Additionally, the Company incurred costs of $6,400,000
related to the Merger.
<TABLE>
<CAPTION>
SHARES VALUE TOTAL
SECURITY OUTSTANDING PER SHARE CONSIDERATION
- -------- ----------- --------- -------------
<S> <C> <C> <C>
Common stock 28,146,906 $ 24.20 $ 681,155,125
Series A preferred stock 2,124,980 28.75 61,093,175
Series B preferred stock
(depository shares) 6,300,000 24.90 156,870,000
---------------
$ 899,118,300
===============
Real estate $ 1,332,715,400
Other assets 136,864,400
Mortgage and notes payable (501,400,600)
Other liabilities (27,957,000)
Minority interest (41,103,900)
---------------
Allocation of purchase price $ 899,118,300
===============
</TABLE>
Continued F-9
<PAGE> 48
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED
----------
2. MERGER, CONTINUED:
The following unaudited pro forma information for the five months ended
December 31, 1998 and December 31, 1997 has been presented as if the
Merger had been consummated on August 1, 1998 and 1997, respectively. The
unaudited pro forma information is not necessarily indicative of what the
actual results of operations of the Company would have been had the Merger
actually occurred on August 1, 1998 and 1997 (in thousands):
<TABLE>
<CAPTION>
FIVE MONTHS ENDED FIVE MONTHS ENDED FIVE MONTHS ENDED FIVE MONTHS ENDED
DECEMBER 31, 1998 DECEMBER 31, 1998 DECEMBER 31, 1997 DECEMBER 31, 1997
(ACTUAL) (PRO FORMA) (ACTUAL) (PRO FORMA)
----------------- ----------------- ----------------- -----------------
<S> <C> <C> <C> <C>
Total revenues $ 155,921 $ 179,092 $ 100,457 $ 150,230
Expenses:
Operating costs 32,764 32,233 25,325 30,014
Real estate and other taxes 13,456 15,655 9,047 12,466
Interest 27,168 32,339 14,309 24,374
Depreciation and amortization 21,366 25,644 12,544 22,228
Provision for doubtful accounts 2,825 2,884 1,675 2,164
General and administrative 2,114 2,849 1,143 2,384
------------ ------------ ------------ ------------
Total expenses 99,693 111,604 64,043 93,630
Sale of real estate/securities 34 34 (67) (67)
Minority interest (457) (739) -- (624)
------------ ------------ ------------ ------------
Net income $ 55,805 $ 66,783 $ 36,347 $ 55,909
============ ============ ============ ============
Net income per share:
Basic $ 0.63 $ 0.66 $ 0.62 $ 0.60
============ ============ ============ ============
Diluted $ 0.62 $ 0.64 $ 0.61 $ 0.58
============ ============ ============ ============
</TABLE>
3. MARKETABLE SECURITIES:
The Company has classified all investments in equity securities as
available-for-sale. All investments are recorded at current market value
with an offsetting adjustment to stockholders' equity (in thousands):
<TABLE>
<CAPTION>
DECEMBER 31, JULY 31, JULY 31,
1998 1998 1997
------------ -------- --------
<S> <C> <C> <C>
Amortized cost/basis $ 974 $ 974 $ 977
Unrealized holdings gains 726 813 1,057
-------- -------- --------
Fair value $ 1,700 $ 1,787 $ 2,034
======== ======== ========
</TABLE>
The weighted average method is used to determine realized gain or loss on
securities sold. The fair value of marketable securities is based upon
quoted market prices as of December 31, 1998 and July 31, 1998 and July
31, 1997, respectively.
Continued F-10
<PAGE> 49
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED
----------
4. MORTGAGES AND NOTES RECEIVABLE
The Company had the following mortgages and notes receivable, including
notes from affiliates (in thousands):
<TABLE>
<CAPTION>
DECEMBER 31, JULY 31, JULY 31,
1998 1998 1997
------------ ------------ ------------
<S> <C> <C> <C>
Notes from EDV, interest at 14% per annum,
collateralized by EDV assets. Due on demand $ 100,058 $ -- $ --
Notes from development companies, monthly interest
from 11% to 12% per annum. Maturity dates vary
depending upon the completion or sale of certain
properties 25,169 -- --
Note from a development company, interest at 25%
compounded monthly, payable in Canadian dollars
Due May 2003 10,439 -- --
Purchase money first mortgages, interest at 7.2% to
10%. Due 1999 to 2001 10,738 11,480 21,980
Leasehold mortgages, interest at 10% to 12%
Due 2008 2,460 2,186 890
Other 1,259 212 237
------------ ------------ ------------
Total $ 150,123 $ 13,878 $ 23,107
============ ============ ============
</TABLE>
Interest and principal payments from EDV are primarily received upon the
completion of development projects. Interest receivable from EDV was
$6,488,000, $0 and $0 at December 31, 1998, July 31, 1998 and July 31,
1997, respectively.
The Company has notes receivable in the total amount of Canadian
$16,050,000 (US $10,439,000 at December 31, 1998) from a Canadian company
which used the proceeds to acquire a 50% joint venture interest in a
mixed-use commercial building known as "Atrium on the Bay", and an
adjacent land parcel in Toronto, Canada. The loan is collateralized by the
Canadian company's interest in the building.
The Company established $25,680,000 in credit facilities to certain
developers. The total outstanding amounts on the credit facilities of
$24,669,000 carry interest at 11% to 12%, are collateralized by real
estate, and are payable on the earlier of the sale of real estate or seven
years.
Continued F-11
<PAGE> 50
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED
----------
5. OTHER RECEIVABLES:
At December 31, 1998, $15,619,000 of the other receivables on the
accompanying balance sheet represents interest and dividends receivable,
most of which was interest receivable related on notes from EDV, and
development companies, including the note related to the Canadian company
as discussed in Note 4.
6. INVESTMENTS:
EXCEL REALTY PARTNERS, L.P.
In 1995, ERP was formed to own and manage certain real estate properties.
The Company is the sole general partner of ERP and is entitled to receive
99% of all net income and gains before depreciation, if any, after the
limited partners receive their stipulated distributions. Properties have
been contributed to ERP in exchange for limited partnership units (which
may be redeemed at stipulated prices for cash or the issuance of the
Company common shares at the Company's option) and cash. These units can
convert to Company shares at exchange ratios from 1.0 to 1.4 Company
shares for each unit. At December 31, 1998, there were approximately
3,231,000 limited partner units outstanding of which the Company owned
approximately 1,525,000 units. Quarterly distributions approximate
$774,000 for units held by third parties.
ERT DEVELOPMENT CORPORATION
In 1995, EDV was organized to finance, acquire, develop, hold and sell
real estate in the short-term for capital gains and/or receive fee income.
The Company owns 100% of the outstanding preferred shares of EDV. The
preferred shares receive 95% of dividends, if any. Cash requirements to
facilitate EDV's transactions have primarily been obtained through
borrowings from the Company. Summary unaudited financial information for
EDV is as follows (in thousands). Only a three-month period of operations
is shown because the Company's consolidated financial statements only
reflect the operations of EDV since the Merger date of September 28, 1998:
<TABLE>
<CAPTION>
DECEMBER 31,
1998
------------
<S> <C>
BALANCE SHEET
Notes receivable from developers, interest at 10% to 20% $ 61,108
Net real estate and other assets 53,353
------------
Total assets $ 114,461
============
Notes payable to New Plan Excel Realty Trust, Inc. $ 100,058
Other liabilities 7,071
------------
Total liabilities 107,129
Total stockholders' equity 7,332
------------
Total liabilities and stockholders' equity $ 114,461
============
</TABLE>
Continued F-12
<PAGE> 51
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED
----------
6. INVESTMENTS, CONTINUED:
ERT DEVELOPMENT CORPORATION
<TABLE>
<CAPTION>
THREE MONTHS ENDED
DECEMBER 31,
1998
------------------
<S> <C>
STATEMENT OF INCOME
Total revenues $ 2,019
Interest expense to New Plan Excel Realty Trust, Inc. (2,764)
Other expenses (378)
-------
Net loss $(1,123)
=======
</TABLE>
EDV's receivables include loans of approximately $29,678,000 made to a
joint venture partnership under a loan commitment related to a retail
development project in Florida. The joint venture obtained a construction
loan which is expected to total approximately $100,000,000, of which
$30,000,000 is guaranteed by the Company. EDV also has an investment in a
joint venture related to retail development project in Texas. The Company
has guaranteed $68,000,000 of the construction loan on the project, which
has a loan balance of $32,806,000 at December 31, 1998.
7. MORTGAGES PAYABLE:
Mortgages are collateralized by real estate and an assignment of rents. As
of December 31, 1998, mortgages payable bear interest at rates ranging
from 3.5% to 10.75%, having a weighted average of 7.7% per annum and
maturity dates from 1999 to 2021. The principal payments required to be
made on mortgages payable (excluding $12,345,000 of unamortized premium)
are as follows (in thousands):
<TABLE>
<CAPTION>
YEAR
----
<S> <C> <C>
1999 $ 52,395
2000 52,331
2001 43,488
2002 22,432
2003 23,598
Thereafter 181,596
--------
$375,840
========
</TABLE>
8. CREDIT FACILITIES:
The Company has a revolving credit facility of up to $250,000,000 in
unsecured advances from a group of banks. The facility expires on December
31, 1999 and bears an interest rate of 120 basis points over LIBOR. At
December 31, 1998, the Company had $150,500,000 outstanding under this
facility. The covenants of the credit facility include maintaining certain
ratios such as liabilities to assets of less than 50% and maintaining a
minimum interest coverage of 2 to 1. The Company also has an unsecured
revolving credit of up to $50,000,000 through November 1999, all of which
was outstanding at December 31, 1998.
Continued F-13
<PAGE> 52
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED
----------
9. NOTES PAYABLE (IN THOUSANDS):
<TABLE>
<CAPTION>
DESCRIPTION FACE AMOUNT DUE DATE DECEMBER 31, 1998 JULY 31, 1998 JULY 31, 1997
- ----------- ----------- -------- ----------------- ------------- -------------
<S> <C> <C> <C> <C> <C>
7.75% Senior notes, effective
interest rate 7.95%, net of
unamortized discount; December
31, 1998 - $957; July 31, 1998
and 1997 - $1,019 and $1,132,
respectively $100,000 2005 $ 99,043 $ 98,981 $ 98,868
6.80% Senior unsecured notes,
effective interest rate 6.87%, net
of unamortized discount;
December 31, 1998 - $184; July
31, 1998 and 1997 - $192 and
$234, respectively 81,000 2002 80,816 80,808 80,766
6.875% Senior unsecured notes,
effective interest rate 6.982% 75,000 2004 75,000 -- --
7.97% unsecured notes 10,000 2026 10,000 10,000 10,000
Variable rate unsecured notes 49,000 1999 49,000 49,000 49,000
Variable rate unsecured notes 10,000 -- -- 10,000 10,000
5.95% unsecured notes 49,000 -- -- 49,000 49,000
7.65% unsecured notes 25,000 2026 25,000 25,000 25,000
7.68% unsecured notes 20,000 2026 20,000 20,000 20,000
Variable rate unsecured notes 40,000 2000 40,000 40,000 40,000
7.35% unsecured notes 30,000 2007 30,000 30,000 30,000
6.9% unsecured notes 50,000 2028 50,000 50,000 --
Variable rate unsecured notes 10,376 1999-2000 10,376 -- --
-------- -------- --------
Total $489,235 $462,789 $412,634
======== ======== ========
</TABLE>
The Notes are uncollateralized and subordinate to mortgages payable and
rank equally with debt under the revolving credit facilities. Where
applicable, the discount is being amortized over the life of the
respective Notes using the effective interest method. Interest is payable
semi-annually or quarterly and the principal is due at maturity. Among
other restrictive covenants, there is a restrictive covenant that limits
the amount of total indebtedness to 65% of total assets. For the five
months ended December 31, 1998, $170 of amortized discount and issuing
costs were included in interest expense. The principal payments (excluding
$1,141 of unamortized discount) required to be made on notes payable are
as follows (in thousands):
<TABLE>
<CAPTION>
YEAR
----
<S> <C>
1999 $ 49,376
2000 50,000
2001 -
2002 81,000
2003 -
Thereafter 310,000
--------
$490,376
========
</TABLE>
Continued F-14
<PAGE> 53
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED
----------
10. CAPITAL LEASES:
The Company owns a leasehold interest in three shopping centers in
California ("Master Leased Centers"). The term of the leases are
thirty-four years and the monthly lease payment is $201,000. In
addition, the Company has purchased the option to acquire fee title to
the Master Leased Centers, exercisable at various times during the terms
of the respective leases. The owner of one of the Master Leased Centers
has the option to require the Company to purchase the property after the
occurrence of certain events. There are no principal payments due on the
leases until a Master Leased Center is acquired.
11. OTHER LIABILITIES (IN THOUSANDS):
<TABLE>
<CAPTION>
DECEMBER 31, JULY 31, JULY 31,
1998 1998 1997
------------ ------- -------
<S> <C> <C> <C>
Property and other taxes payable $11,839 $10,523 $ 9,289
Interest payable 8,771 9,712 7,779
Accounts payable 5,442 3,362 2,096
Accrued construction costs 4,521 4,789 4,872
Deferred rent expense and rents received in advance 4,013 1,108 1,337
Amounts due seller of property 1,823 1,952 1,467
Accrued professional and personnel costs 1,767 1,239 1,666
Acquisition costs 806 1,120 1,884
Other 6,927 3,715 2,969
------- ------- -------
Total $45,909 $37,520 $33,359
======= ======= =======
</TABLE>
12. ENVIRONMENTAL MATTERS:
Under various federal, state and local laws, ordinances and regulations,
the Company may be considered an owner or operator of real property or may
have arranged for the disposal or treatment of hazardous or toxic
substances and, therefore, may become liable for the costs of removal or
remediation of certain hazardous substances released on or in its property
or disposed of by it, as well as certain other potential costs which could
relate to hazardous or toxic substances (including governmental fines and
injuries to persons and property). Such liability may be imposed whether
or not the Company knew of, or was responsible for, the presence of such
hazardous or toxic substances. Except as discussed below, the Company is
not aware of any significant environmental condition at any of its
properties.
Soil and groundwater contamination exists at certain of the Company's
properties. The Company currently estimates that the total cumulative cost
of remediation for these properties will be approximately $2.8 million to
$6.5 million. In connection with certain of these properties, the Company
has entered into certain remediation and indemnity agreements, which
obligate the prior owners of certain of the properties (including in some
cases, principals of the prior owners) to perform the remediation and to
indemnify the Company for any losses the Company may suffer because of the
contamination or remediation. Although there can be no assurance that the
remediation estimates of the Company will prove accurate or that the prior
owners will perform their obligations under the remediation and indemnity
agreements, the Company does not expect the environmental conditions at
these properties to have a material adverse effect on the Company. The
Company has also identified asbestos minerals relating to spray-applied
fireproofing materials at certain properties. Included in other
liabilities in the Company's Consolidated Balance Sheet at December 31,
1998 is $3.2 million related to the clean-up of these asbestos minerals.
Continued F-15
<PAGE> 54
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED
----------
13. LEASE AGREEMENTS:
The Company has entered into leases, as lessee, in connection with ground
leases for shopping centers which it operates, an office building which it
sublets and administrative office space for the Company. These leases are
accounted for as operating leases. The minimum annual rental commitments
during the next five fiscal years and thereafter are approximately as
follows (in thousands):
<TABLE>
<CAPTION>
YEAR
----
<S> <C>
1999 $ 1,022
2000 990
2001 1,171
2002 1,125
2003 1,337
Thereafter 11,395
--------
$ 17,040
========
</TABLE>
For the year ended July 31, 1998, the lease for office space included
contingent rentals for real estate tax escalations and operating expense
in the amount of $10,000. There were no contingent rentals for the five
months ended December 31, 1998 or for the years ended July 31, 1998, 1997,
and 1996. In addition, ground leases provide for fixed rent escalations
and renewal options.
14. STOCKHOLDERS' EQUITY:
PREFERRED STOCK
Holders of the 8 1/2% Series A Cumulative Convertible Preferred Stock (the
"Preferred A Shares") are entitled to an annual distribution of $2.125 per
share and are convertible into common shares at a price of $26.06 per
share. The Preferred A Shares rank senior to the Company's common stock
and are on a parity with the other preferred shares with respect to the
payment of dividends and amounts payable upon liquidation, dissolution or
winding down of the Company.
The Company has outstanding 6,300,000 depositary shares each representing
1/10 of a share of 8 5/8% Series B Cumulative Redeemable Preferred Stock
(the "Preferred B Shares"). Holders of the Preferred B Shares are entitled
to an annual dividend equal to $2.15625, payable quarterly.
The Company also has 1,500,000 depositary shares outstanding, each
representing a 1/10 fractional interest in a share of 7.8% Series D
Cumulative Voting Step-Up Premium Rate Preferred Stock (the "Preferred D
Shares"), which are redeemable at the option of the Company on or after
June 2007 at a liquidation preference of $500 per share. The Preferred D
Shares pay dividends quarterly at the rate of 7.8% of the liquidation
preference per annum through September 2012 and at the rate of 9.8% of the
liquidation preference per annum thereafter.
Continued F-16
<PAGE> 55
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED
----------
14. STOCKHOLDERS' EQUITY, CONTINUED:
OPTIONS
The Company has the following stock option plans (the "Plans") pursuant to
which options have been granted to purchase shares of common stock of the
Company (the "Shares") to officers, directors, and certain key employees
of the Company: (i) the 1985 Incentive Stock Option Plan (the "1985
Plan"), (ii) the March 1991 Stock Option Plan (the "March 1991 Plan"),
(iii) the Non-Qualified Stock Option Plan (the "Non-Qualified Plan"), (iv)
the 1991 Stock Option Plan (the "1991 Plan"), (v) the 1993 Employee Plan
(the "1993 Plan"), (vi) the 1994 Directors Plan (the "1994 Plan") and
(vii) the 1997 Stock Option Plan (the "1997 Plan"). The exercise price of
a share pursuant to each of the Plans is required to be no less than the
fair market value of a share on the date of grant. Under the 1985 Plan and
the 1991 and 1997 Plans (with the exception of certain option grants of
10,000 Shares or more, as discussed below) and the Non-Qualified Plan,
options are exercisable 20% per year commencing one year from the date of
grant. In the case of certain option grants of 10,000 Shares or more under
the 1991 and 1997 Plans, such option grants are exercisable 10% after the
first anniversary of the date of grant, 25% after the second anniversary
of the date of grant, 45% after the third anniversary of the date of
grant, 70% after the fourth anniversary of the date of grant and 100%
after the fifth anniversary of the date of grant. In the case of the March
1991 Plan, 30% of the options granted are exercisable on the second
anniversary of the date of grant and, thereafter, an additional 10% of the
granted options are exercisable on an annual basis. Under the 1993 and
1994 Plans, the vesting schedule is determined at the time of grant by the
option committee. Future option grants can be made only under the 1993
Plan and the 1994 Plan. The total available for future grants under the
1993 Plan is a number equal to 2.0% of the number of shares of common
stock issued and outstanding as of the end of the immediately preceding
fiscal year, plus 1,450,000. As of December 31, 1998, 977,000 options were
available for grant under the 1993 Plan. The total available under the
1994 Plan is 176,700. The options outstanding at December 31, 1998, have
exercise prices from $13.22 to $25.25 and have a weighted average
remaining contractual life of 6.33 years. The total options exercisable at
December 31, 1998, are 3,584,394.
Stock option and warrant activity are summarized as follows:
<TABLE>
<CAPTION>
WEIGHTED AVERAGE
EXERCISE PRICE
OPTIONS PER SHARE
------- ----------------
<S> <C> <C>
Outstanding at August 1, 1996 2,083,050 $19.85
Granted 571,750 $21.89
Exercised or forfeited (141,600) $21.24
---------
Outstanding at July 31, 1997 2,513,200
Granted 1,450,250 $24.08
Exercised or forfeited (387,500) $21.97
---------
Outstanding at July 31, 1998 3,575,950
Balance from Excel at date of Merger 2,315,842 $19.71
Granted 135,500 $20.62
Exercised or forfeited (81,402) $21.58
---------
Outstanding December 31, 1998 5,945,890 $20.83
=========
</TABLE>
Continued F-17
<PAGE> 56
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED
----------
14. STOCKHOLDERS' EQUITY, CONTINUED:
SFAS No. 123, Accounting for Stock-Based Compensation, requires either the
recording or disclosure of compensation cost for stock-based employee
compensation plans at fair value. The Company has adopted the
disclosure-only provisions of SFAS No. 123. Accordingly, no compensation
costs have been recognized by the Company.
Had compensation cost for the Company's stock option plans been recognized
based on the fair value at the grant date for awards consistent with the
provisions of SFAS No. 123, the Company's net income in the five months
ended December 31, 1998 would have been reduced by $677,000 from
$55,805,000 ($0.63 per share - basic, and $0.62 per share - diluted) to
$55,128,000 ($0.62 per share - basic, and $0.61 per share - diluted). In
the year ended July 31, 1998, net income would have been reduced by
$6,425,000, from $90,573,000 ($1.43 per share - basic and $1.42 per share
- diluted) to $83,904,000 ($1.41 per share - basic and diluted). In the
year ended July 31, 1997, net income would have been reduced by $572,000,
from $77,037,000 ($1.31 per share - basic and $1.30 per share diluted) to
$76,465,000 ($1.31 per share - basic and $1.30 per share diluted). In the
year ended July 31, 1996, net income would have been reduced by $11,000,
from $70,521,000 to $70,510,000 with no change to the per share
calculations.
The fair value of each option grant is estimated on the date of grant
using the Black-Scholes option-pricing model with the following
weighted-average assumptions used for grants in the five months ended
December 31, 1998, and each of the three years ended July 31, 1998,
1997 and 1996, respectively: dividend yield of 6.70%, 6.14%, 6.12% and
6.12%, respectively; expected volatility of 19.51%, 18.25%, 19.30% and
15.79%, respectively; risk-free interest rate of 4.93%, 5.87%, 6.66% and
6.40%, respectively; and expected life of 5.2 years, 6.5 years, 6.3 years
and 6.3 years, respectively. The per share weighted average fair value at
the dates of grant for options awarded for the above periods was $2.04,
$2.78, $3.10 and $2.03, respectively.
DIVIDEND REINVESTMENT PLAN
The Company has a Dividend Reinvestment and Share Purchase Plan (the
"Plan") whereby shareholders may invest cash distributions and make
optional cash payments to purchase shares of the Company without payment
of brokerage commissions or service charges. The price per share of the
additional shares to be purchased with invested cash distributions is the
midpoint between the day's high and low sales prices on the New York Stock
Exchange, less 5%.
LOANS
The Company has made loans to officers, directors and employees primarily
for the purpose of purchasing common shares of the Company. These loans
are demand and term notes bearing interest at rates ranging from 5% to
9.75%. Interest is payable quarterly.
Continued F-18
<PAGE> 57
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED
----------
14. STOCKHOLDERS' EQUITY, CONTINUED:
EARNINGS PER SHARE (EPS)
In accordance with the disclosure requirements of SFAS No. 128 (Note 1), a
reconciliation of the numerator and denominator of basic and diluted EPS
is provided as follows (in thousands, except per share amounts):
<TABLE>
<CAPTION>
YEAR ENDED
FIVE MONTHS ENDED JULY 31,
DECEMBER 31, --------------------------------------
1998 1998 1997 1996
----------------- -------- ---------- --------
<S> <C> <C> <C> <C>
BASIC EPS
NUMERATOR:
Net income $ 55,805 $ 90,573 $ 77,037 $ 70,521
Preferred dividends (6,914) (5,850) (461) --
-------- -------- -------- --------
$ 48,891 $ 84,723 $ 76,576 $ 70,521
======== ======== ======== ========
DENOMINATOR:
Weighted average of common shares outstanding 77,481 59,365 58,461 56,484
======== ======== ======== ========
EARNINGS PER SHARE: $ 0.63 $ 1.43 $ 1.31 $ 1.25
======== ======== ======== ========
DILUTED EPS
NUMERATOR:
Net income $ 55,805 $ 90,573 $ 77,037 $ 70,521
Preferred dividends (6,914) (5,850) (461) --
Minority interest 457 -- -- --
-------- -------- -------- --------
Net income available to common shares $ 49,348 $ 84,723 $ 76,576 $ 70,521
======== ======== ======== ========
DENOMINATOR:
Weighted average of common shares outstanding 77,481 59,365 58,461 56,484
Effect of diluted securities:
Common stock options and warrants 594 409 274 158
ERP third party units 1,321 -- -- --
-------- -------- -------- --------
79,396 59,774 58,735 56,642
======== ======== ======== ========
EARNINGS PER SHARE: $ 0.62 $ 1.42 $ 1.30 $ 1.25
======== ======== ======== ========
</TABLE>
15. STATEMENT OF CASH FLOWS - SUPPLEMENTAL DISCLOSURE:
In the five months ended December 31, 1998 and the years ended July 31,
1998, 1997, and 1996, the Company acquired properties by assuming
mortgages payable of $4,730,000, $51,900,000, $17,500,000, and
$32,538,000, respectively. The amounts paid for interest for the five
months ended December 31, 1998 and the years ended July 31, 1998, 1997,
and 1996 were $33,061,000, $34,876,000, $24,642,000, and $17,085,000,
respectively. State and local income taxes paid for the five months ended
December 31, 1998 and the years ended July 31, 1998, 1997, and 1996 were
$100,000, $156,000, $872,000, and $0, respectively.
Continued F-19
<PAGE> 58
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED
----------
16. FINANCIAL INSTRUMENTS:
The following fair value disclosure was determined by the Company, using
available market information and discounted cash flow analyses as of
December 31, 1998, July 31, 1998 and July 31, 1997, respectively.
Considerable judgement is necessary to interpret market data and to
develop the related estimates of fair value. Accordingly, the estimates
presented are not necessarily indicative of the amounts that the Company
could realize upon disposition. The use of different estimation
methodologies may have a material effect on the estimated fair value
amounts. The Company believes that the carrying values reflected in the
Consolidated Balance Sheets at December 31, 1998 and July 31, 1998
approximates the fair values for cash and cash equivalents, marketable
securities, receivables and other liabilities. The following are financial
instruments for which Company estimates of fair value differ from book
values:
<TABLE>
<CAPTION>
DECEMBER 31, 1998 JULY 31, 1998 JULY 31, 1997
---------------------- ---------------------- ----------------------
CARRYING FAIR CARRYING FAIR CARRYING FAIR
AMOUNTS VALUE AMOUNTS VALUE AMOUNTS VALUE
-------- -------- -------- -------- -------- ------
<S> <C> <C> <C> <C> <C> <C>
Mortgages and notes receivable $150,123 $150,324 $ 13,878 $ 14,100 $ 23,107 24,200
Mortgages payable 388,185 389,572 114,099 115,700 65,573 67,500
Notes payable 489,235 539,876 462,789 501,800 412,634 429,200
</TABLE>
17. MINIMUM FUTURE RENTALS:
Minimum future rental revenue for the next five years for the commercial
real estate owned at December 31, 1998 and subject to noncancelable
operating leases is as follows (in thousands):
<TABLE>
<CAPTION>
YEAR
----
<S> <C>
1999 $ 243,967
2000 217,886
2001 194,088
2002 169,482
2003 147,519
Thereafter 1,000,575
</TABLE>
The above table assumes that all leases which expire are not renewed,
therefore neither renewal rentals nor rentals from replacement tenants are
included. Minimum future rentals do not include contingent rentals, which
may be received under certain leases on the basis of percentage of
reported tenants' sales volume. Contingent rentals included in income for
the five months ended December 31, 1998 and for the years ended July 31,
1998, 1997, and 1996 amounted to approximately $15,549,000, $34,421,000,
$28,933,000, and $26,173,000, respectively.
18. RETIREMENT PLAN:
The Company has a Retirement and 401(k) Savings Plan (the "Savings Plan")
covering most of the officers and employees of the Company. Participants
in the Savings Plan may elect to contribute a portion of their earnings to
the Savings Plan and the Company, at the discretion of the Board of
Directors, may make a voluntary contribution to the Savings Plan. For the
five months ended December 31, 1998 and the years ended July 31, 1998 and
1997, the Company's expense for the Savings Plan was $205,000, $317,000
and $250,000, respectively.
Continued F-20
<PAGE> 59
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED
----------
19. SELECTED QUARTERLY FINANCIAL DATA (UNAUDITED):
Summarized quarterly financial data is as follows (in thousands except per
share amounts):
<TABLE>
<CAPTION>
NET INCOME NET INCOME
TOTAL PER SHARE- PER SHARE-
REVENUES NET INCOME BASIC DILUTED
-------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
FIVE MONTHS ENDED DECEMBER 31, 1998:
August 1 to September 30 $ 46,510 $ 16,937 $ 0.26 $ 0.26
October 1 to December 31 109,411 38,868 0.37 0.36
YEAR ENDED JULY 31, 1998:
First quarter $ 59,507 $ 21,537 $ 0.34 $ 0.34
Second quarter 61,845 22,525 0.36 0.35
Third quarter 63,481 22,899 0.36 0.36
Fourth quarter 65,426 23,612 0.37 0.37
YEAR ENDED JULY 31, 1997:
First quarter $ 47,783 $ 19,076 $ 0.33 $ 0.33
Second quarter 51,147 19,092 0.33 0.32
Third quarter 52,066 19,088 0.32 0.32
Fourth quarter 55,825 19,781 0.33 0.33
</TABLE>
20. SEGMENT INFORMATION:
The Company's two reportable business segments are retail and residential
rental properties. At December 31, 1998, the retail segment consists of
301 shopping centers (included in this amount are four office and two
vacant land parcels) and the residential segment consists of 54 garden
apartment complexes. Selected financial information for each segment is as
follows:
<TABLE>
<CAPTION>
RETAIL RESIDENTIAL OTHER TOTAL
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
FOR FIVE MONTHS ENDED
DECEMBER 31, 1998
Revenue $ 122,505 $ 32,471 $ 945 $ 155,921
Operating expenses and minority
interest 32,984 16,518 2,114 51,616
----------- ----------- ----------- -----------
89,521 15,953 (1,169) 104,305
Interest Expense 27,168 27,168
Depreciation and amortization 17,885 3,481 21,366
(Gain)/loss on sale of securities/
properties (34) (34)
----------- ----------- ----------- -----------
Net Income $ 71,636 $ 12,472 ($ 28,303) $ 55,805
=========== =========== =========== ===========
Real Estate Assets, net $ 2,318,001 $ 349,447 $ 2,667,448
=========== =========== ===========
FOR YEAR ENDED JULY 31, 1998
Revenue $ 176,982 $ 69,326 $ 3,950 $ 250,258
Operating expenses 52,184 36,216 2,770 91,170
----------- ----------- ----------- -----------
124,798 33,110 1,180 159,088
Interest expense 36,852 36,852
Depreciation 24,077 7,545 31,622
(Gain)/loss on sale of securities/
properties 41 41
----------- ----------- ----------- -----------
Net income $ 100,721 $ 25,565 ($ 35,713) $ 90,573
=========== =========== =========== ===========
Real estate assets, net $ 977,617 $ 338,143 $ 1,315,760
=========== =========== ===========
</TABLE>
F-21
<PAGE> 60
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED
----------
20. SEGMENT INFORMATION (CONTINUED):
<TABLE>
<CAPTION>
FOR YEAR ENDED JULY 31, 1997 RETAIL RESIDENTIAL OTHER TOTAL
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
Revenue $ 146,762 $ 55,331 $ 4,728 $ 206,821
Operating expenses 45,163 29,153 2,203 76,519
----------- ----------- ----------- -----------
101,599 26,178 2,525 130,302
Interest expense 28,256 28,256
Depreciation 19,464 5,542 -- 25,006
(Gain)/loss on sale of securities/
properties 3 3
----------- ----------- ----------- -----------
Net income $ 82,135 $ 20,636 ($ 25,734) $ 77,037
=========== =========== =========== ===========
Real estate assets, net $ 875,027 $ 296,882 $ 1,171,909
=========== =========== ===========
</TABLE>
F-22
<PAGE> 61
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS
(IN THOUSANDS)
----------
<TABLE>
<CAPTION>
ADDITIONS DEDUCTIONS
----------------------------
ACCOUNTS
BALANCE AT CHARGED TO RECEIVABLE BALANCE AT
BEGINNING BAD DEBT WRITTEN END OF
DESCRIPTION OF PERIOD EXPENSE OFF PERIOD
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Allowance for doubtful accounts:
Five months ended December 31, 1998 $ 7,296 $ 4,368(1) $ 628 $ 11,636
========== ========== ========== ==========
Year ended July 31, 1998 $ 5,581 $ 4,171 $ 1,826 $ 7,926
========== ========== ========== ==========
Year ended July 31, 1997 $ 3,977 $ 3,283 $ 1,679 $ 5,581
========== ========== ========== ==========
Year ended July 31, 1996 $ 2,923 $ 1,984 $ 930 $ 3,977
========== ========== ========== ==========
</TABLE>
- --------
1 $1,543 of this amount was assumed as part of the Merger.
F-23
<PAGE> 62
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III - REAL ESTATE AND ACCUMULATED DEPRECIATION
DECEMBER 31, 1998
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D COLUMN E
-------- -------- -------- -------- --------
COST
CAPITALIZED
SUBSEQUENT TO GROSS AMOUNT AT WHICH CARRIED AT THE
INITIAL COST TO COMPANY ACQUISITION CLOSE OF THE PERIOD
----------------------- ------------- ------------------------------------
BUILDING & BUILDING &
DESCRIPTION ENCUMBRANCES LAND IMPROVEMENTS IMPROVEMENTS LAND IMPROVEMENTS TOTAL
----------- ------------ ---- ------------ ------------ ---- ------------ -----
<S> <C> <C> <C> <C> C> <C> <C>
APARTMENTS
- -----------------------
BRECKENRIDGE APARTMENTS 604,487 2,411,462 243,391 604,487 2,654,853 3,259,340
BIRMINGHAM AL
COURTS AT WILDWOOD 1,119,320 4,477,301 375,229 1,119,320 4,852,530 5,971,850
BIRMINGHAM AL
DEVONSHIRE PLACE 1,245,728 4,982,914 1,258,662 1,245,728 6,241,576 7,487,304
BIRMINGHAM AL
THE CLUB APARTMENTS 1,709,558 6,838,233 478,885 1,709,558 7,317,118 9,026,676
BIRMINGHAM AL
HILLCREST APARTMENTS 1,252,632 251,734 3,325,604 46,201 251,734 3,371,805 3,623,539
MOBILE AL
KNOLLWOOD APARTMENTS 6,026,518 4,352,001 16,926,403 113,981 4,352,001 17,040,384 21,392,385
MOBILE AL
MAISON DE VILLE APTS 4,625,000 1,971,014 7,897,056 178,168 1,971,014 8,075,224 10,046,238
MOBILE AL
MAISON IMPERIAL APTS 1,750,000 672,368 2,702,471 76,681 672,368 2,779,152 3,451,520
MOBILE AL
PLANTATION APARTMENTS 1,000,000 410,866 1,653,465 41,016 410,866 1,694,481 2,105,347
MOBILE AL
MAYFAIR APARTMENTS 240,000 962,217 490,850 240,000 1,453,067 1,693,067
DOVER DE
RODNEY APARTMENTS 769,188 1,612,614 1,276,499 769,188 2,889,113 3,658,301
DOVER DE
CHARTER POINTE APARTMENTS 5,311,423 1,501,146 9,049,327 68,878 1,501,146 9,118,205 10,619,351
ALTAMONTE SPRINGS FL
LAKE PARK APARTMENTS 833,000 1,822,039 2,666,191 833,000 4,488,230 5,321,230
LAKE PARK FL
CAMBRIDGE APARTMENTS 878,593 3,514,373 99,398 878,593 3,613,771 4,492,364
ATHENS GA
</TABLE>
<TABLE>
<CAPTION>
COLUMN A COLUMN F COLUMN G COLUMN H COLUMN I
-------- -------- -------- -------- --------
LIFE ON
WHICH
DEPRECIATED
IN LATEST
ACCUMULATED DATE OF DATE INCOME
DESCRIPTION DEPRECIATION CONSTRUCTION ACQUIRED STATEMENT
----------- ------------ ------------ -------- ---------
<S> <C> <C> <C> <C>
BRECKENRIDGE APARTMENTS 479,784 1979 1992 40 Years
BIRMINGHAM AL
COURTS AT WILDWOOD 712,160 1969 1993 40 Years
BIRMINGHAM AL
DEVONSHIRE PLACE 1,107,811 1971 1992 40 Years
BIRMINGHAM AL
THE CLUB APARTMENTS 685,168 1969-1974 1995 40 Years
BIRMINGHAM AL
HILLCREST APARTMENTS 124,807 1977 1997 40 Years
MOBILE AL
KNOLLWOOD APARTMENTS 662,866 1978-1982 1997 40 Years
MOBILE AL
MAISON DE VILLE APTS 491,555 1963,71-73 1996 40 Years
MOBILE AL
MAISON IMPERIAL APTS 169,717 1969-73 1996 40 Years
MOBILE AL
PLANTATION APARTMENTS 107,789 1977 1996 40 Years
MOBILE AL
MAYFAIR APARTMENTS 765,949 1971 1981 40 Years
DOVER DE
RODNEY APARTMENTS 2,364,431 1963-1965 1969 40 Years
DOVER DE
CHARTER POINTE APARTMENTS 164,055 1973 1998 40 Years
ALTAMONTE SPRINGS FL
LAKE PARK APARTMENTS 2,480,820 1965 1976 40 Years
LAKE PARK FL
CAMBRIDGE APARTMENTS 244,803 1972,1982 1996 40 Years
ATHENS GA
</TABLE>
F-24
<PAGE> 63
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III - REAL ESTATE AND ACCUMULATED DEPRECIATION
DECEMBER 31, 1998
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D COLUMN E
-------- -------- -------- -------- --------
COST
CAPITALIZED
SUBSEQUENT TO GROSS AMOUNT AT WHICH CARRIED AT THE
INITIAL COST TO COMPANY ACQUISITION CLOSE OF THE PERIOD
----------------------- ------------- ------------------------------------
BUILDING & BUILDING &
DESCRIPTION ENCUMBRANCES LAND IMPROVEMENTS IMPROVEMENTS LAND IMPROVEMENTS TOTAL
----------- ------------ ---- ------------ ------------ ---- ------------ -----
<S> <C> <C> <C> <C> C> <C> <C>
TARA APARTMENTS 3,388,178 1,192,545 4,792,179 128,179 1,192,545 4,920,358 6,112,903
ATHENS GA
REGENCY CLUB APARTMENTS 1,179,910 4,719,639 222,879 1,179,910 4,942,518 6,122,428
EVANSVILLE IN
FOREST HILLS APARTMENTS 714,761 8,197,499 110,780 714,761 8,308,279 9,023,040
INDIANAPOLIS IN
HAWTHORNE HEIGHTS APTS 1,669,304 6,698,215 280,586 1,669,304 6,978,801 8,648,105
INDIANAPOLIS IN
JAMESTOWN APARTMENTS 518,646 2,075,236 759,651 518,646 2,834,887 3,353,533
LEXINGTON KY
SADDLEBROOK APARTMENTS 1,939,164 7,756,655 545,864 1,939,164 8,302,519 10,241,683
LEXINGTON KY
CHARLESTOWN @ DOUGLASS HILLS 1,306,230 5,231,914 395,614 1,306,230 5,627,528 6,933,758
LOUISVILLE KY
LA FONTENAY APARTMENTS 1,176,550 4,706,200 870,010 1,176,550 5,576,210 6,752,760
LOUISVILLE KY
POPLAR LEVEL APARTMENTS 284,793 1,139,174 117,656 284,793 1,256,830 1,541,623
LOUISVILLE KY
RIVERCHASE APARTMENTS 807,302 3,229,206 92,393 807,302 3,321,599 4,128,901
NEWPORT KY
FORESTWOOD APARTMENTS 2,070,811 8,283,242 146,217 2,070,811 8,429,459 10,500,270
BATON ROUGE LA
SHERWOOD ACRES APARTMENTS 3,906,900 15,627,597 140,132 3,906,900 15,767,729 19,674,629
BATON ROUGE LA
WILLOW BEND LAKE APARTMENTS 2,930,484 11,721,937 84,873 2,930,484 11,806,810 14,737,294
BATON ROUGE LA
DEERHORN VILLAGE APARTMENTS 1,292,778 5,171,112 333,278 1,292,778 5,504,390 6,797,168
KANSAS CITY MO
CARDINAL WOODS APARTMENTS 1,435,783 5,726,132 145,314 1,435,783 5,871,446 7,307,229
CARY NC
</TABLE>
<TABLE>
<CAPTION>
COLUMN A COLUMN F COLUMN G COLUMN H COLUMN I
-------- -------- -------- -------- --------
LIFE ON
WHICH
DEPRECIATED
IN LATEST
ACCUMULATED DATE OF DATE INCOME
DESCRIPTION DEPRECIATION CONSTRUCTION ACQUIRED STATEMENT
----------- ------------ ------------ -------- ---------
<S> <C> <C> <C> <C>
TARA APARTMENTS 323,422 1970 1996 40 Years
ATHENS GA
REGENCY CLUB APARTMENTS 276,705 1980 1996 40 Years
EVANSVILLE IN
FOREST HILLS APARTMENTS 252,036 1974 1997 40 Years
INDIANAPOLIS IN
HAWTHORNE HEIGHTS APTS 450,156 1965 1996 40 Years
INDIANAPOLIS IN
JAMESTOWN APARTMENTS 685,698 1967 1991 40 Years
LEXINGTON KY
SADDLEBROOK APARTMENTS 809,352 1969 1995 40 Years
LEXINGTON KY
CHARLESTOWN @ DOUGLASS HILLS 780,972 1974 1993 40 Years
LOUISVILLE KY
LA FONTENAY APARTMENTS 963,981 1970 1992 40 Years
LOUISVILLE KY
POPLAR LEVEL APARTMENTS 266,849 1974 1991 40 Years
LOUISVILLE KY
RIVERCHASE APARTMENTS 190,391 1968 1996 40 Years
NEWPORT KY
FORESTWOOD APARTMENTS 442,614 1985 1996 40 Years
BATON ROUGE LA
SHERWOOD ACRES APARTMENTS 846,789 1978-1979 1996 40 Years
BATON ROUGE LA
WILLOW BEND LAKE APARTMENTS 610,704 1986 1996 40 Years
BATON ROUGE LA
DEERHORN VILLAGE APARTMENTS 506,242 1974 1995 40 Years
KANSAS CITY MO
CARDINAL WOODS APARTMENTS 187,388 1978 1997 40 Years
CARY NC
</TABLE>
F-25
<PAGE> 64
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III - REAL ESTATE AND ACCUMULATED DEPRECIATION
DECEMBER 31, 1998
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D COLUMN E
-------- -------- -------- -------- --------
COST
CAPITALIZED
SUBSEQUENT TO GROSS AMOUNT AT WHICH CARRIED
INITIAL COST TO COMPANY ACQUISITION AT THE CLOSE OF THE PERIOD
-------------------- ------------- --------------------------
BUILDING & BUILDING &
DESCRIPTION ENCUMBRANCES LAND IMPROVEMENTS IMPROVEMENTS LAND IMPROVEMENTS TOTAL
----------- ------------ ---- ------------ ------------ ---- ------------ -----
<S> <C> <C> <C> <C> <C> <C> <C>
POLO RUN APARTMENTS 4,665,137 4,331,230 8,413,395 26,740 4,331,230 8,440,135 12,771,365
RALEIGH NC
MEADOW EAST APARTMENTS 86,407 1,467,282 475,011 86,407 1,942,293 2,028,700
POTSDAM NY
MOHAWK GARDEN APARTMENTS 163,235 1,135,660 1,702,889 163,235 2,838,549 3,001,784
ROME NY
NORTHGATE APARTMENTS 7,477,107 1,513,498 9,297,201 89,980 1,513,498 9,387,181 10,900,679
COLUMBUS OH
SPRING CREEK APARTMENTS 1,455,271 9,082,352 94,502 1,455,271 9,176,854 10,632,125
COLUMBUS OH
ARLINGTON VILLAGE APARTMENTS 1,065,284 4,269,138 178,642 1,065,284 4,447,780 5,513,064
FAIRBORN OH
CHESTERFIELD APARTMENTS 179,109 1,449,156 383,446 179,109 1,832,602 2,011,711
MAUMEE OH
EASTGREEN ON THE COMMONS APARTMENTS 5,992,763 1,142,888 7,648,557 107,445 1,142,888 7,756,002 8,898,890
REYNOLDSBURG OH
GOLDCREST APARTMENTS 1,133,355 4,533,416 118,704 1,133,355 4,652,120 5,785,475
SHARONVILLE OH
CAMBRIDGE PARK APTS 1,223,582 4,894,326 137,271 1,223,582 5,031,597 6,255,179
UNION TWP-CINN OH
GOVERNOUR'S PLACE APARTMENTS 626,807 2,507,226 143,776 626,807 2,651,002 3,277,809
HARRISBURG PA
HARBOUR LANDING APARTMENTS 1,141,954 4,567,815 170,235 1,141,954 4,738,050 5,880,004
COLUMBIA SC
SEDGEFIELD APARTMENTS 1,550,734 6,211,936 266,388 1,550,734 6,478,324 8,029,058
FLORENCE SC
TURTLE CREEK APARTMENTS 984,565 3,954,261 54,519 984,565 4,008,780 4,993,345
GREENVILLE SC
HICKORY LAKE APARTMENTS 1,369,251 5,483,004 816,699 1,369,251 6,299,703 7,668,954
ANTIOCH TN
</TABLE>
<TABLE>
<CAPTION>
COLUMN A COLUMN F COLUMN G COLUMN H COLUMN I
-------- -------- -------- -------- --------
LIFE ON
WHICH
DEPRECIATED
IN LATEST
ACCUMULATED DATE OF DATE INCOME
DESCRIPTION DEPRECIATION CONSTRUCTION ACQUIRED STATEMENT
----------- ------------ ------------ -------- ---------
<S> <C> <C> <C> <C>
POLO RUN APARTMENTS 61,642 1971 1998 40 Years
RALEIGH NC
MEADOW EAST APARTMENTS 757,735 1964-1971 1983 40 Years
POTSDAM NY
MOHAWK GARDEN APARTMENTS 1,267,708 1947 1985 40 Years
ROME NY
NORTHGATE APARTMENTS 118,532 1970 1998 40 Years
COLUMBUS OH
SPRING CREEK APARTMENTS 337,136 1985 1997 40 Years
COLUMBUS OH
ARLINGTON VILLAGE APARTMENTS 504,259 1966 1994 40 Years
FAIRBORN OH
CHESTERFIELD APARTMENTS 359,159 1979-1984 1991 40 Years
MAUMEE OH
EASTGREEN ON THE COMMONS APARTMENTS 173,710 1971,1982 1998 40 Years
REYNOLDSBURG OH
GOLDCREST APARTMENTS 263,268 1968 1996 40 Years
SHARONVILLE OH
CAMBRIDGE PARK APTS 286,760 1973 1996 40 Years
UNION TWP-CINN OH
GOVERNOUR'S PLACE APARTMENTS 250,650 1974 1995 40 Years
HARRISBURG PA
HARBOUR LANDING APARTMENTS 409,409 1974 1995 40 Years
COLUMBIA SC
SEDGEFIELD APARTMENTS 749,295 1972,74,79 1994 40 Years
FLORENCE SC
TURTLE CREEK APARTMENTS 260,602 1976 1996 40 Years
GREENVILLE SC
HICKORY LAKE APARTMENTS 858,210 1974 1993 40 Years
ANTIOCH TN
</TABLE>
F-26
<PAGE> 65
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III - REAL ESTATE AND ACCUMULATED DEPRECIATION
DECEMBER 31, 1998
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D COLUMN E
-------- -------- -------- -------- --------
COST
CAPITALIZED
SUBSEQUENT TO GROSS AMOUNT AT WHICH CARRIED AT THE
INITIAL COST TO COMPANY ACQUISITION CLOSE OF THE PERIOD
----------------------- ------------- ----------------------------------------
BUILDING & BUILDING &
DESCRIPTION ENCUMBRANCES LAND IMPROVEMENTS IMPROVEMENTS LAND IMPROVEMENTS TOTAL
----------- ------------ ---- ------------ ------------ ---- ------------ -----
<S> <C> <C> <C> <C> <C> <C> <C>
COURTS @ WATERFORD PLACE 2,745,404 10,982,373 205,987 2,745,404 11,188,360 13,933,764
CHATTANOOGA TN
ASHFORD PLACE APARTMENTS 1,150,270 4,611,080 689,744 1,150,270 5,300,824 6,451,094
CLARKSVILLE TN
CEDAR VILLAGE APARTMENTS 806,355 3,230,420 159,051 806,355 3,389,471 4,195,826
CLARKSVILLE TN
PADDOCK PLACE APARTMENTS 1,358,400 5,437,602 106,963 1,358,400 5,544,565 6,902,965
CLARKSVILLE TN
THE PINES APARTMENTS 918,769 3,679,074 126,037 918,769 3,805,111 4,723,880
CLARKSVILLE TN
LANDMARK ESTATES APARTMENTS 476,624 1,906,284 124,424 476,624 2,030,708 2,507,332
EAST RIDGE TN
MILLER CREST APARTMENTS 747,155 3,025,619 126,915 747,155 3,152,534 3,899,689
JOHNSON CITY TN
CEDAR BLUFF APARTMENTS 1,273,023 5,269,532 102,202 1,273,023 5,371,734 6,644,757
KNOXVILLE TN
COUNTRY PLACE APARTMENTS 1,896,828 7,587,313 115,743 1,896,828 7,703,056 9,599,884
NASHVILLE TN
WOODBRIDGE APARTMENTS 1,594,214 6,376,854 112,890 1,594,214 6,489,744 8,083,958
NASHVILLE TN
RETAIL AND OTHER
- -----------------------
CLOVERDALE VILLAGE 634,152 2,536,606 7,304 634,152 2,543,910 3,178,062
FLORENCE AL
SHOPPING CENTER 5,900,893 1,927,069 7,708,274 1,927,069 7,708,274 9,635,343
GADSDEN AL
GRANT MILLS STATION 8,234,050 2,774,919 11,099,675 2,774,919 11,099,675 13,874,594
IRONDALE AL
</TABLE>
<TABLE>
<CAPTION>
COLUMN A COLUMN F COLUMN G COLUMN H COLUMN I
-------- -------- -------- -------- --------
LIFE ON
WHICH
DEPRECIATED
IN LATEST
ACCUMULATED DATE OF DATE INCOME
DESCRIPTION DEPRECIATION CONSTRUCTION ACQUIRED STATEMENT
----------- ------------ ------------ -------- ---------
<S> <C> <C> <C> <C>
COURTS @ WATERFORD PLACE 582,335 1988,89 1996 40 Years
CHATTANOOGA TN
ASHFORD PLACE APARTMENTS 740,205 1972-1974 1993 40 Years
CLARKSVILLE TN
CEDAR VILLAGE APARTMENTS 389,854 1982 1994 40 Years
CLARKSVILLE TN
PADDOCK PLACE APARTMENTS 623,147 1989 1994 40 Years
CLARKSVILLE TN
THE PINES APARTMENTS 437,044 1986 1994 40 Years
CLARKSVILLE TN
LANDMARK ESTATES APARTMENTS 119,993 1971 1996 40 Years
EAST RIDGE TN
MILLER CREST APARTMENTS 203,735 1973 1996 40 Years
JOHNSON CITY TN
CEDAR BLUFF APARTMENTS 358,636 1980 1996 40 Years
KNOXVILLE TN
COUNTRY PLACE APARTMENTS 532,660 1979 1996 40 Years
NASHVILLE TN
WOODBRIDGE APARTMENTS 367,698 1980 1996 40 Years
NASHVILLE TN
RETAIL AND OTHER
- -----------------------
CLOVERDALE VILLAGE 268,309 1986 1994 40 Years
FLORENCE AL
SHOPPING CENTER 49,226 1995 1997 40 Years
GADSDEN AL
GRANT MILLS STATION 70,884 1991 1998 40 Years
IRONDALE AL
</TABLE>
F-27
<PAGE> 66
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III - REAL ESTATE AND ACCUMULATED DEPRECIATION
December 31, 1998
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D COLUMN E
-------- -------- -------- -------- --------
COST GROSS AMOUNT AT
CAPITALIZED WHICH CARRIED
SUBSEQUENT TO AT THE CLOSE OF
INITIAL COST TO COMPANY ACQUISITION THE PERIOD
---------------------------- ------------- ----------------
BUILDING &
DESCRIPTION ENCUMBRANCES LAND IMPROVEMENTS IMPROVEMENTS LAND
----------- ------------ ----------- ------------ ------------ ----------------
<S> <C> <C> <C> <C> <C> <C>
KROGER BUILDING 100,522 402,090 100,522
MUSCLE SHOALS AL
SUPER X BUILDING 420,599 1,682,396 420,599
MUSCLE SHOALS AL
KROGER BUILDING 361,715 1,446,862 361,715
SCOTTSBORO AL
PAYTON PARK 3,443,397 13,773,587 3,443,397
SYLACAUGA AL
KMART BUILDING 479,587 1,918,349 479,587
PINE BLUFF AR
SAFEWAY BUILDING 400,418 1,601,671 400,418
SHERWOOD AR
SHOPPING CENTER 2,756,404 11,025,615 23,023 2,756,404
GLENDALE AZ
SHOPPING CENTER 1,141,294 4,565,176 4,875 1,141,294
MESA AZ
SHOPPING CENTER 1,644,853 6,579,414 23,291 1,644,853
MESA AZ
SHOPPING CENTER 1,147,194 4,588,778 1,147,194
MESA AZ
LUCKY BUILDING 238,562 954,249 238,562
MESA AZ
LUCKY BUILDING 291,736 1,166,943 291,736
PHOENIX AZ
SHOPPING CENTER 4,897,702 19,590,808 4,897,702
PHOENIX AZ
Q-CLUB BUILDING 1,790,145 7,160,581 1,790,145
PHOENIX AZ
GENETRIX BUILDING 481,110 1,924,439 481,110
SCOTTSDALE AZ
</TABLE>
<TABLE>
<CAPTION>
COLUMN A COLUMN E COLUMN F COLUMN G COLUMN H COLUMN I
-------- -------- -------- -------- -------- --------
GROSS AMOUNT AT
WHICH CARRIED LIFE ON
AT THE CLOSE OF WHICH
THE PERIOD DEPRECIATED
----------------------------- IN LATEST
BUILDING & ACCUMULATED DATE OF DATE INCOME
DESCRIPTION IMPROVEMENTS TOTAL DEPRECIATION CONSTRUCTION ACQUIRED STATEMENT
----------- --------------- ----------- ------------ ------------ -------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
KROGER BUILDING 402,090 502,612 2,568 1982 1998 40 years
MUSCLE SHOALS AL
SUPER X BUILDING 1,682,396 2,102,995 10,744 1982 1998 40 years
MUSCLE SHOALS AL
KROGER BUILDING 1,446,862 1,808,577 9,240 1981 1998 40 years
SCOTTSBORO AL
PAYTON PARK 13,773,587 17,216,984 87,960 1995 1998 40 Years
SYLACAUGA AL
KMART BUILDING 1,918,349 2,397,937 12,251 1981 1998 40 years
PINE BLUFF AR
SAFEWAY BUILDING 1,601,671 2,002,088 10,229 1981 1998 40 years
SHERWOOD AR
SHOPPING CENTER 11,048,638 13,805,042 71,871 1989-91 1998 40 Years
GLENDALE AZ
SHOPPING CENTER 4,570,051 5,711,345 29,305 1981 1998 40 years
MESA AZ
SHOPPING CENTER 6,602,705 8,247,558 29,154 1986-97 1998 40 years
MESA AZ
SHOPPING CENTER 4,588,778 5,735,972 43,182 1970 1998 40 Years
MESA AZ
LUCKY BUILDING 954,249 1,192,811 6,094 1982 1998 40 years
MESA AZ
LUCKY BUILDING 1,166,943 1,458,679 7,452 1981 1998 40 years
PHOENIX AZ
SHOPPING CENTER 19,590,808 24,488,510 125,110 1988 1998 40 Years
PHOENIX AZ
Q-CLUB BUILDING 7,160,581 8,950,727 45,729 1994 1998 40 years
PHOENIX AZ
GENETRIX BUILDING 1,924,439 2,405,549 12,290 1971 1998 40 years
SCOTTSDALE AZ
</TABLE>
F-28
<PAGE> 67
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III - REAL ESTATE AND ACCUMULATED DEPRECIATION
December 31, 1998
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D COLUMN E
-------- -------- -------- -------- --------
COST GROSS AMOUNT AT
CAPITALIZED WHICH CARRIED
SUBSEQUENT TO AT THE CLOSE OF
INITIAL COST TO COMPANY ACQUISITION THE PERIOD
---------------------------- ------------- ----------------
BUILDING &
DESCRIPTION ENCUMBRANCES LAND IMPROVEMENTS IMPROVEMENTS LAND
----------- ------------ ----------- ------------ ------------ ----------------
<S> <C> <C> <C> <C> <C> <C>
Q-CLUB BUILDING 1,803,264 7,213,058 1,803,264
SCOTTSDALE AZ
SHOPPING CENTER AND OUTPARCELS 4,616,918 12,132,112 105,314 4,637,981
TUCSON AZ
PAYLESS DRUG BUILDING 188,103 752,413 188,103
YUMA AZ
SHOPPING CENTER 4,930,278 19,721,111 4,930,278
BAKERSFIELD CA
FACTORY MERCHANTS BARSTOW 9,433,158 5,730,337 22,936,349 12,971,577 5,730,337
BARSTOW CA
SONY BUILDING 1,107,834 4,431,334 1,107,834
BURBANK CA
SHOPPING CENTER 1,798,908 7,195,630 1,798,908
CAMARILLO CA
SHOPPING CENTER 263,529 1,054,118 263,529
COACHELLA CA
SHOPPING CENTER 1,789,646 7,158,585 1,789,646
CUDAHY CA
SHOPPING CENTER 4,211,313 16,845,251 4,211,313
FRESNO CA
SHOPPING CENTER 2,685,183 10,740,732 2,685,183
FRESNO CA
SHOPPING CENTER 1,338,539 1,547,385 6,189,539 1,547,385
MODESTO CA
SHOPPING CENTER 9,451,696 5,395,666 21,582,666 5,395,666
MONTEBELLO CA
SHOPPING CENTER 2,975,152 1,590,666 6,362,665 1,590,666
PARADISE CA
ROSE PAVILION 10,907,446 43,629,782 10,907,446
</TABLE>
<TABLE>
<CAPTION>
COLUMN A COLUMN E COLUMN F COLUMN G COLUMN H COLUMN I
-------- ------------------------------- -------- -------- -------- --------
GROSS AMOUNT AT
WHICH CARRIED LIFE ON
AT THE CLOSE OF WHICH
THE PERIOD DEPRECIATED
------------------------------- IN LATEST
BUILDING & ACCUMULATED DATE OF DATE INCOME
DESCRIPTION IMPROVEMENTS TOTAL DEPRECIATION CONSTRUCTION ACQUIRED STATEMENT
----------- --------------- ----------- ------------ ------------ -------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
Q-CLUB BUILDING 7,213,058 9,016,322 46,064 1994 1998 40 years
SCOTTSDALE AZ
SHOPPING CENTER AND OUTPARCELS 12,216,364 16,854,345 77,477 1995/96 1998 40 Years
TUCSON AZ
PAYLESS DRUG BUILDING 752,413 940,516 4,805 1980 1998 40 years
YUMA AZ
SHOPPING CENTER 19,721,111 24,651,389 125,942 1970 1998 40 Years
BAKERSFIELD CA
FACTORY MERCHANTS BARSTOW 35,907,926 41,638,263 4,816,983 1989 1993 40 Years
BARSTOW CA
SONY BUILDING 4,431,334 5,539,168 28,299 1988 1998 40 years
BURBANK CA
SHOPPING CENTER 7,195,630 8,994,538 45,952 1971 1998 40 Years
CAMARILLO CA
SHOPPING CENTER 1,054,118 1,317,647 6,732 1991 1998 40 Years
COACHELLA CA
SHOPPING CENTER 7,158,585 8,948,231 45,716 1968 1998 40 Years
CUDAHY CA
SHOPPING CENTER 16,845,251 21,056,564 104,244 1993 1998 40 Years
FRESNO CA
SHOPPING CENTER 10,740,732 13,425,915 68,592 1995 1998 40 Years
FRESNO CA
SHOPPING CENTER 6,189,539 7,736,924 39,527 1974 1998 40 Years
MODESTO CA
SHOPPING CENTER 21,582,666 26,978,332 137,830 1974 1998 40 Years
MONTEBELLO CA
SHOPPING CENTER 6,362,665 7,953,331 40,633 1979 1998 40 Years
PARADISE CA
ROSE PAVILION 43,629,782 54,537,228 278,626 1987 1998 40 Years
</TABLE>
F-29
<PAGE> 68
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III - REAL ESTATE AND ACCUMULATED DEPRECIATION
December 31, 1998
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D COLUMN E
-------- -------- -------- -------- --------
COST GROSS AMOUNT AT
CAPITALIZED WHICH CARRIED
SUBSEQUENT TO AT THE CLOSE OF
INITIAL COST TO COMPANY ACQUISITION THE PERIOD
---------------------------- ------------- ----------------
BUILDING &
DESCRIPTION ENCUMBRANCES LAND IMPROVEMENTS IMPROVEMENTS LAND
----------- ------------ ----------- ------------ ------------ ---------
<S> <C> <C> <C> <C> <C> <C>
PLEASANTON CA
SHOPPING CENTER 5,644,689 22,578,755 5,644,689
PLEASANTON CA
SHOPPING CENTER 7,325,334 4,126,349 16,505,395 4,126,349
SAN DIMAS CA
OFFICE BUILDING 1,817,614 497,018 1,988,071 497,018
SAN DIEGO CA
SHOPPING CENTER 2,698,044 10,792,177 159,225 2,729,889
SANTA ANA CA
VAIL RANCH 2,526,921 10,107,685 16,457 2,526,921
TEMECULA CA
UNITED ARTISTS 138,121 552,486 138,121
PUEBLO CO
SHOPPING CENTER 29,864,073 11,773,584 47,094,336 11,773,584
WESTMINSTER CO
DOVERAMA @ RODNEY VILLAGE 50,755 311,781 50,755
DOVER DE
RODNEY VILLAGE 1,202,551 2,082,918 2,304,609 1,202,551
DOVER DE
KASH N' KARRY BUILDING 382,230 1,528,921 382,230
BRANDON FL
SHOPPING CENTER 2,636,455 10,545,820 2,636,455
BROOKSVILLE FL
SHOPPING CENTER 10,361,312 41,445,247 278,033 10,361,312
CLEARWATER FL
SHOPPING CENTER 8,815,024 2,841,040 11,364,160 11,410 2,841,040
DELAND FL
REGENCY PARK SHOPPING CENTER 3,888,425 15,553,501 36,703 3,888,425
JACKSONVILLE FL
</TABLE>
<TABLE>
<CAPTION>
COLUMN A COLUMN E COLUMN F COLUMN G COLUMN H COLUMN I
-------- -------- -------- -------- -------- --------
GROSS AMOUNT AT
WHICH CARRIED LIFE ON
AT THE CLOSE OF WHICH
THE PERIOD DEPRECIATED
------------------------------ IN LATEST
BUILDING & ACCUMULATED DATE OF DATE INCOME
DESCRIPTION IMPROVEMENTS TOTAL DEPRECIATION CONSTRUCTION ACQUIRED STATEMENT
----------- --------------- ----------- ------------ ------------ -------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
PLEASANTON CA
SHOPPING CENTER 22,578,755 28,223,444 144,191 1995-96 1998 40 Years
PLEASANTON CA
SHOPPING CENTER 16,505,395 20,631,744 105,406 1986-88 1997 40 Years
SAN DIMAS CA
OFFICE BUILDING 1,988,071 2,485,089 12,696 1988 1998 40 years
SAN DIEGO CA
SHOPPING CENTER 10,919,557 13,649,446 70,115 1972 1998 40 Years
SANTA ANA CA
VAIL RANCH 10,124,142 12,651,063 64,549 1997 1998 40 Years
TEMECULA CA
UNITED ARTISTS 552,486 690,607 3,528 1977 1998 40 Years
PUEBLO CO
SHOPPING CENTER 47,094,336 58,867,920 300,751 1996 1998 40 Years
WESTMINSTER CO
DOVERAMA @ RODNEY VILLAGE 311,781 362,536 78,948 1969 1988 40 Years
DOVER DE
RODNEY VILLAGE 4,387,527 5,590,078 3,295,179 1959 1969 40 Years
DOVER DE
KASH N' KARRY BUILDING 1,528,921 1,911,151 9,764 1982 1998 40 Years
BRANDON FL
SHOPPING CENTER 10,545,820 13,182,275 67,348 1987 1998 40 years
BROOKSVILLE FL
SHOPPING CENTER 41,723,280 52,084,592 264,675 1973 1998 40 Years
CLEARWATER FL
SHOPPING CENTER 11,375,570 14,216,610 72,873 1993 1998 40 years
DELAND FL
REGENCY PARK SHOPPING CENTER 15,590,204 19,478,629 578,421 1985 1997 40 Years
JACKSONVILLE FL
</TABLE>
F-30
<PAGE> 69
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III - REAL ESTATE AND ACCUMULATED DEPRECIATION
December 31, 1998
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D COLUMN E
-------- -------- -------- -------- --------
Cost Gross Amount
Capitalized at Which Carried
Subsequent to at the Close
Initial Cost to Company Acquisition of the Period
Building &
Description Encumbrances Land Improvements Improvements Land
----------- ------------ ---- ------------ ------------ ----
<S> <C> <C> <C> <C> <C> <C>
SHOPPING CENTER 1,482,042 5,928,169 1,482,042
LAKE WALES FL
SHOPPING CENTER 1,051,639 4,206,554 1,051,639
LEESBURG FL
SHOPPING CENTER 5,273,959 21,095,835 5,273,959
MIAMI FL
SHOPPING CENTER 3,208,554 12,834,215 3,208,554
NAPLES FL
SOUTHGATE SHOPPING CENTER 4,253,341 3,981,290 10,621 4,253,341
NEW PORT RICHIE FL
PRESIDENTIAL PLAZA 1,312,956 2,456,917 113,551 1,312,956
NORTH LAUDERDALE FL
PRESIDENTIAL PLAZA WEST 437,485 812,473 13,147 437,485
NORTH LAUDERDALE FL
COLONIAL MARKETPLACE 4,137,254 2,524,647 3,504,446 2,524,647
ORLANDO FL
23RD STATION 1,776,768 7,107,073 26,750 1,776,768
PANAMA CITY FL
RIVERWOOD SHOPPING CENTER 2,243,023 1,500,580 8,960 2,243,023
PORT ORANGE FL
SEMINOLE PLAZA 2,128,480 2,215,356 2,128,480
SEMINOLE FL
ST AUGUSTINE OUTLET CENTER 55,716 4,488,742 14,426,139 10,222,860 4,488,742
ST. AUGUSTINE FL
RUTLAND PLAZA 1,443,294 5,773,175 100,169 1,443,294
ST. PETERSBURG FL
ALBANY PLAZA 696,447 2,799,786 148,167 696,447
ALBANY GA
KMART BUILDING 460,000 1,840,000 460,000
ALBANY GA
</TABLE>
<TABLE>
<CAPTION>
COLUMN A COLUMN E COLUMN F COLUMN G COLUMN H COLUMN I
-------- -------- -------- -------- -------- --------
Gross Amount at Life on
Which Carried at the Which
Close of the Period Depreciated
in Latest
Building & Accumulated Date of Date Income
Description Improvements Total Depreciation Construction Acquired Statement
----------- ------------ ----- ------------ ------------ -------- ---------
<S> <C> <C> <C> <C> <C> <C>
SHOPPING CENTER 5,928,169 7,410,212 37,858 1994 1998 40 years
LAKE WALES
SHOPPING CENTER 4,206,554 5,258,193 26,864 1986 1998 40 Years
LEESBURG
SHOPPING CENTER 21,095,835 26,369,794 134,721 1996 1998 40 Years
MIAMI
SHOPPING CENTER 12,834,215 16,042,768 81,961 1995 1998 40 Years
NAPLES
SOUTHGATE SHOPPING CENTER 3,991,911 8,245,252 120,983 1966 1997 40 Years
NEW PORT RICHIE
PRESIDENTIAL PLAZA 2,570,468 3,883,424 109,729 1977 1997 40 Years
NORTH LAUDERDALE
PRESIDENTIAL PLAZA WEST 825,620 1,263,105 34,914 1977 1997 40 Years
NORTH LAUDERDALE
COLONIAL MARKETPLACE 3,504,446 6,029,093 62,058 1979,86 1998 40 Years
ORLANDO
23RD STATION 7,133,823 8,910,592 46,501 1986 1998 40 Years
PANAMA CITY
RIVERWOOD SHOPPING CENTER 1,509,540 3,752,563 48,515 1984,1996 1997 40 Years
PORT ORANGE
SEMINOLE PLAZA 2,215,356 4,343,836 36,923 1964 1998 40 Years
SEMINOLE
ST AUGUSTINE OUTLET CENTER 24,648,999 29,137,741 4,395,210 1991 1992 40 Years
ST. AUGUSTINE
RUTLAND PLAZA 5,873,344 7,316,638 312,166 1964 1996 40 Years
ST. PETERSBURG
ALBANY PLAZA 2,947,953 3,644,400 335,831 1968 1994 40 Years
ALBANY
KMART BUILDING 1,840,000 2,300,000 11,751 1981 1998 40 years
ALBANY
</TABLE>
F-31
<PAGE> 70
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III - REAL ESTATE AND ACCUMULATED DEPRECIATION
December 31, 1998
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D COLUMN E
-------- -------- -------- -------- --------
Cost Gross Amount
Capitalized at Which Carried
Subsequent to at the Close
Initial Cost to Company Acquisition of the Period
Building &
Description Encumbrances Land Improvements Improvements Land
----------- ------------ ---- ------------ ------------ ----
<S> <C> <C> <C> <C> <C> <C>
SOUTHGATE PLAZA - ALBANY 231,517 970,811 107,751 231,517
ALBANY GA
KROGER BUILDING 328,805 1,315,221 328,805
EAST ALBANY GA
RITE AID BUILDING 90,794 363,175 90,794
EAST ALBANY GA
EASTGATE PLAZA - AMERICUS 221,637 1,036,331 108,166 221,637
AMERICUS GA
PERLIS PLAZA 774,966 5,301,644 561,117 774,966
AMERICUS GA
ROGERS PLAZA 291,014 688,590 110,593 291,014
ASHBURN GA
SHOPPING CENTER 629,345 2,517,379 629,345
ATLANTA GA
SWEETWATER VILLAGE 707,938 2,831,750 13,405 707,938
AUSTELL GA
CEDAR PLAZA 928,302 3,713,207 50,395 928,302
CEDARTOWN GA
CEDARTOWN SHOPPING CENTER 745,006 3,266,424 84,289 745,006
CEDARTOWN GA
CORDELE SQUARE 864,335 3,457,337 407,896 864,335
CORDELE GA
MR B'S 166,047 154,140 7,880 166,047
CORDELE GA
SOUTHGATE PLAZA - CORDELE 202,682 958,998 154,037 202,682
CORDELE GA
HABERSHAM VILLAGE 1,301,643 4,340,422 725,184 1,301,643
CORNELIA GA
SHOPPING CENTER 4,054,935 1,530,136 6,120,543 1,530,136
</TABLE>
<TABLE>
<CAPTION>
COLUMN A COLUMN E COLUMN F COLUMN G COLUMN H COLUMN I
-------- -------- -------- -------- -------- --------
Gross Amount at Life on
Which Carried at the Which
Close of the Period Depreciated
in Latest
Building & Accumulated Date of Date Income
Description Improvements Total Depreciation Construction Acquired Statement
----------- ------------ ----- ------------ ------------ -------- ---------
<S> <C> <C> <C> <C> <C> <C>
SOUTHGATE PLAZA - ALBANY 1,078,562 1,310,079 209,515 1969 1990 40 Years
ALBANY
KROGER BUILDING 1,315,221 1,644,027 8,399 1982 1998 40 years
EAST ALBANY
RITE AID BUILDING 363,175 453,968 2,319 1982 1998 40 years
EAST ALBANY
EASTGATE PLAZA - AMERICUS 1,144,497 1,366,134 224,221 1980 1990 40 Years
AMERICUS
PERLIS PLAZA 5,862,761 6,637,727 1,246,644 1972 1990 40 Years
AMERICUS
ROGERS PLAZA 799,183 1,090,197 188,896 1974 1990 40 Years
ASHBURN
SHOPPING CENTER 2,517,379 3,146,723 16,076 1995 1998 40 Years
ATLANTA
SWEETWATER VILLAGE 2,845,155 3,553,093 299,013 1985 1994 40 Years
AUSTELL
CEDAR PLAZA 3,763,602 4,691,904 395,837 1994 1994 40 Years
CEDARTOWN
CEDARTOWN SHOPPING CENTER 3,350,713 4,095,719 337,017 1989 1995 40 Years
CEDARTOWN
CORDELE SQUARE 3,865,233 4,729,568 835,268 1968 1990 40 Years
CORDELE
MR B'S 162,020 328,067 34,226 1968 1990 40 Years
CORDELE
SOUTHGATE PLAZA - CORDELE 1,113,035 1,315,717 207,655 1969 1990 40 Years
CORDELE
HABERSHAM VILLAGE 5,065,606 6,367,249 899,667 1985 1992 40 Years
CORNELIA
SHOPPING CENTER 6,120,543 7,650,678 39,087 1990 1998 40 Years
</TABLE>
F-32
<PAGE> 71
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III - REAL ESTATE AND ACCUMULATED DEPRECIATION
December 31, 1998
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D COLUMN E
-------- -------- -------- -------- --------
Cost Gross Amount at
Capitalized Which Carried
Subsequent to at the Close of
Initial Cost to Company Acquisition the Period
Building &
Description Encumbrances Land Improvements Improvements Land
----------- ------------ ---- ------------ ------------ ----
<S> <C> <C> <C> <C> <C> <C>
CORNELIA GA
SHOPPING CENTER 2,396,587 9,586,347 2,396,587
COVINGTON GA
SHOPPING CENTER 898,065 3,592,261 898,065
DALTON GA
SHOPPING CENTER 2,314,595 760,517 3,042,066 760,517
DALTON GA
MIDWAY VILLAGE SHOPPING CENTER 1,553,580 2,887,506 30,692 1,553,580
DOUGLASVILLE GA
WESTGATE - DUBLIN 699,174 5,834,809 157,749 699,174
DUBLIN GA
MARSHALL'S AT EASTLAKE SHOPPING CENTER 1,710,517 2,069,483 1,710,517
MARIETTA GA
NEW CHASTAIN CORNERS SHOPPING CENTER 2,457,446 5,741,641 79,266 2,457,446
MARIETTA GA
VILLAGE AT SOUTHLAKE 1,733,198 3,017,677 1,733,198
MORROW GA
SHOPPING CENTER 7,644,485 2,667,018 10,668,072 2,667,018
PERRY GA
CREEKWOOD SHOPPING CENTER 1,160,203 3,482,609 (1) 1,160,203
REX GA
EISENHOWER SQUARE SHOPPING CENTER 1,029,500 4,117,700 119,157 1,029,500
SAVANNAH GA
VICTORY SQUARE 1,206,181 4,824,725 132,610 1,206,181
SAVANNAH GA
SHOPPING CENTER 2,741,015 2,364,619 9,458,474 30,668 2,364,619
SNELLVILLE GA
SHOPPING CENTER 3,338,227 1,260,939 5,043,756 1,260,939
STATESBORO GA
</TABLE>
<TABLE>
<CAPTION>
COLUMN A COLUMN E COLUMN F COLUMN G COLUMN H COLUMN I
-------- -------- -------- -------- -------- --------
Gross Amount at Life on
Which Carried at the Which
Close of the Period Depreciated
in Latest
Building & Accumulated Date of Date Income
Description Improvements Total Depreciation Construction Acquired Statement
----------- ------------ ----- ------------ ------------ -------- ---------
<S> <C> <C> <C> <C> <C> <C>
CORNELIA
SHOPPING CENTER 9,586,347 11,982,933 61,220 1991 1998 40 years
COVINGTON
SHOPPING CENTER 3,592,261 4,490,326 22,941 1995 1998 40 Years
DALTON
SHOPPING CENTER 3,042,066 3,802,583 19,427 1994 1998 40 Years
DALTON
MIDWAY VILLAGE SHOPPING CENTER 2,918,198 4,471,778 112,308 1989 1997 40 Years
DOUGLASVILLE
WESTGATE - DUBLIN 5,992,558 6,691,732 1,247,698 1974 1990 40 Years
DUBLIN
MARSHALL'S AT EASTLAKE SHOPPING CENTER 2,069,483 3,780,000 10,779 1982 1998 40 Years
MARIETTA
NEW CHASTAIN CORNERS SHOPPING CENTER 5,820,907 8,278,353 209,180 1990 1997 40 Years
MARIETTA
VILLAGE AT SOUTHLAKE 3,017,677 4,750,875 53,878 1983 1998 40 Years
MORROW
SHOPPING CENTER 10,668,072 13,335,090 68,128 1992 1998 40 Years
PERRY
CREEKWOOD SHOPPING CENTER 3,482,608 4,642,811 134,142 1990 1997 40 Years
REX
EISENHOWER SQUARE SHOPPING CENTER 4,236,857 5,266,357 153,727 1985 1997 40 Years
SAVANNAH
VICTORY SQUARE 4,957,335 6,163,516 799,322 1986 1992 40 Years
SAVANNAH
SHOPPING CENTER 9,489,142 11,853,761 62,192 1985 1998 40 Years
SNELLVILLE
SHOPPING CENTER 5,043,756 6,304,695 32,210 1994 1998 40 Years
STATESBORO
</TABLE>
F-33
<PAGE> 72
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III - REAL ESTATE AND ACCUMULATED DEPRECIATION
December 31, 1998
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D COLUMN E
-------- -------- -------- -------- --------
Cost
Capitalized Gross Amount at
Subsequent to Which Carried at the
Initial Cost to Company Acquisition Close of the Period
Building &
Description Encumbrances Land Improvements Improvements Land
----------- ------------ ---- ------------ ------------ ----
<S> <C> <C> <C> <C> <C> <C>
TIFT-TOWN 271,444 1,325,238 271,359 271,444
TIFTON GA
WESTGATE - TIFTON 156,269 304,704 963 156,269
TIFTON GA
KMART BUILDING 286,738 1,146,953 286,738
ATLANTIC IA
LUCKY BUILDING 294,406 1,177,623 294,406
CORALVILLE IA
HAYMARKET MALL 1,230,252 5,031,799 119,315 1,230,252
DES MOINES IA
HAYMARKET SQUARE 6,145,000 2,056,172 8,224,688 477,383 2,056,172
DES MOINES IA
LUCKY BUILDING 392,668 1,570,673 392,668
DUBUQUE IA
SOUTHFIELD PLAZA SHOPPING CENTER 3,188,496 3,897,167 6,246,066 3,188,496
BRIDGEVIEW IL
LUCKY BUILDING 310,257 1,241,030 310,257
DECATUR IL
KING CITY SQUARE 1,968,656 7,874,623 1,968,656
MT. VERNON IL
WESTRIDGE COURT SHOPPING CENTER 9,815,696 39,261,783 572,970 9,815,696
NAPERVILLE IL
KROGER BUILDING 464,003 1,856,013 464,003
OTTAWA IL
LUCKY BUILDING 392,704 1,570,815 392,704
PEORIA IL
LUCKY BUILDING 307,059 1,228,235 307,059
SPRINGFIELD IL
LUCKY BUILDING 391,727 1,566,909 391,727
STERLING IL
</TABLE>
<TABLE>
<CAPTION>
COLUMN A COLUMN E COLUMN F COLUMN G COLUMN H COLUMN I
-------- -------- -------- -------- -------- --------
Gross Amount at Life on
Which Carried at the Which
Close of the Period Depreciated
in Latest
Building & Accumulated Date of Date Income
Description Improvements Total Depreciation Construction Acquired Statement
----------- ------------ ----- ------------ ------------ -------- ---------
<S> <C> <C> <C> <C> <C> <C>
TIFT-TOWN 1,596,597 1,868,041 320,373 1965 1990 40 Years
TIFTON
WESTGATE - TIFTON 305,667 461,936 64,487 1980 1990 40 Years
TIFTON
KMART BUILDING 1,146,953 1,433,692 7,325 1980 1998 40 years
ATLANTIC
LUCKY BUILDING 1,177,623 1,472,029 7,520 1981 1998 40 years
CORALVILLE
HAYMARKET MALL 5,151,114 6,381,366 461,211 1968-1979 1995 40 Years
DES MOINES
HAYMARKET SQUARE 8,702,071 10,758,243 780,750 1971-1979 1995 40 Years
DES MOINES
LUCKY BUILDING 1,570,673 1,963,342 10,031 1980 1998 40 years
DUBUQUE
SOUTHFIELD PLAZA SHOPPING CENTER 10,143,233 13,331,729 472,373 1958,72 1996 40 Years
BRIDGEVIEW
LUCKY BUILDING 1,241,030 1,551,287 7,925 1983 1998 40 years
DECATUR
KING CITY SQUARE 7,874,623 9,843,279 50,289 1998 40 Years
MT. VERNON
WESTRIDGE COURT SHOPPING CENTER 39,834,753 49,650,449 1,457,604 1990 1997 40 Years
NAPERVILLE
KROGER BUILDING 1,856,013 2,320,017 11,853 1982 1998 40 years
OTTAWA
LUCKY BUILDING 1,570,815 1,963,519 10,031 1983 1998 40 years
PEORIA
LUCKY BUILDING 1,228,235 1,535,294 7,844 1982 1998 40 years
SPRINGFIELD
LUCKY BUILDING 1,566,909 1,958,636 10,007 1980 1998 40 years
STERLING
</TABLE>
F-34
<PAGE> 73
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III - REAL ESTATE AND ACCUMULATED DEPRECIATION
December 31, 1998
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D COLUMN E
-------- -------- -------- -------- --------
Cost Gross Amount at
Capitalized Which Carried at the
Subsequent to Close of the Period
Initial Cost to Company Acquisition
Building &
Description Encumbrances Land Improvements Improvements Land
----------- ------------ ---- ------------ ------------ ----
<S> <C> <C> <C> <C> <C> <C>
TINLEY PARK PLAZA 2,607,702 10,430,808 268,156 2,607,702
TINLEY PARK IL
KROGER BUILDING 344,651 1,378,602 344,651
WATERLOO IL
COLUMBUS CENTER 1,196,269 3,608,315 2,425,562 1,196,269
COLUMBUS IN
KINDER CARE #132 82,686 330,742 82,686
FT. WAYNE IN
LUCKY BUILDING 325,306 1,301,224 325,306
HOBART IN
KINDER CARE #125 82,686 330,742 82,686
INDIANAPOLIS IN
KINDER CARE #126 82,686 330,742 82,686
INDIANAPOLIS IN
KINDER CARE #128 82,686 330,742 82,686
INDIANAPOLIS IN
KINDER CARE #134 35,940 143,760 35,940
INDIANAPOLIS IN
JASPER MANOR 1,319,937 7,110,063 34,383 1,319,937
JASPER IN
SHOPPING CENTER 657,867 2,631,469 657,867
MARION IN
LUCKY BUILDING 269,395 1,077,579 269,395
MICHIGAN CITY IN
TOWN FAIR SHOPPING CENTER 1,104,876 3,759,503 10,437 1,104,876
PRINCETON IN
SHOPPING CENTER 2,991,347 649,120 2,596,480 52,900 649,120
TERRE HAUTE IN
WABASH CROSSING 1,614,878 6,470,511 27,744 1,614,878
</TABLE>
<TABLE>
<CAPTION>
COLUMN A COLUMN E COLUMN F COLUMN G COLUMN H COLUMN I
-------- -------- -------- -------- -------- --------
Gross Amount at Life on
Which Carried at the Which
Close of the Period Depreciated
in Latest
Building & Accumulated Date of Date Income
Description Improvements Total Depreciation Construction Acquired Statement
----------- ------------ ----- ------------ ------------ -------- ---------
<S> <C> <C> <C> <C> <C> <C>
TINLEY PARK PLAZA 10,698,964 13,306,666 916,627 1973 1995 40 Years
TINLEY PARK
KROGER BUILDING 1,378,602 1,723,253 8,804 1982 1998 40 years
WATERLOO
COLUMBUS CENTER 6,033,877 7,230,146 1,769,737 1964 1988 40 Years
COLUMBUS
KINDER CARE #132 330,742 413,428 2,112 1976 1998 40 years
FT. WAYNE
LUCKY BUILDING 1,301,224 1,626,530 8,310 1983 1998 40 years
HOBART
KINDER CARE #125 330,742 413,428 2,112 1975 1998 40 years
INDIANAPOLIS
KINDER CARE #126 330,742 413,428 2,112 1976 1998 40 years
INDIANAPOLIS
KINDER CARE #128 330,742 413,428 2,112 1976 1998 40 years
INDIANAPOLIS
KINDER CARE #134 143,760 179,701 918 1976 1998 40 years
INDIANAPOLIS
JASPER MANOR 7,144,446 8,464,383 1,226,687 1990 1992 40 Years
JASPER
SHOPPING CENTER 2,631,469 3,289,336 16,805 1989 1998 40 years
MARION
LUCKY BUILDING 1,077,579 1,346,974 6,882 1983 1998 40 years
MICHIGAN CITY
TOWN FAIR SHOPPING CENTER 3,769,940 4,874,816 552,397 1991 1993 40 Years
PRINCETON
SHOPPING CENTER 2,649,380 3,298,500 19,995 1989 1998 40 years
TERRE HAUTE
WABASH CROSSING 6,498,255 8,113,133 819,505 1988 1993 40 Years
</TABLE>
F-35
<PAGE> 74
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III - REAL ESTATE AND ACCUMULATED DEPRECIATION
December 31, 1998
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D COLUMN E
-------- -------- -------- -------- --------
Cost
Capitalized Gross Amount at
Subsequent to Which Carried at the
Initial Cost to Company Acquisition Close of the Period
Building &
Description Encumbrances Land Improvements Improvements Land
----------- ------------ ---- ------------ ------------ ----
<S> <C> <C> <C> <C> <C> <C>
WABASH IN
SHOPPING CENTER 403,588 1,614,353 403,588
WARSAW IN
SHOPPING CENTER 5,444,572 2,242,859 8,971,434 2,242,859
CAMPBELLSVILLE KY
SHOPPING CENTER 5,416,151 1,636,668 6,546,671 1,636,668
ELIZABETHTOWN KY
SHOPPING CENTER 4,954,116 1,648,009 6,592,037 1,648,009
GLASGOW KY
JACKSON VILLAGE 284,815 3,115,586 589,956 284,815
JACKSON KY
J*TOWN CENTER 1,331,074 4,121,997 616,521 1,331,074
JEFFERSONTOWN KY
MIST LAKE PLAZA 10,403,095 3,939,761 15,759,046 3,939,761
LEXINGTON KY
SHOPPING CENTER 5,528,660 2,421,016 9,684,065 2,421,016
LONDON KY
NEW LOUISA PLAZA 469,014 1,998,752 161,683 469,014
LOUISA KY
PICCADILLY SQUARE 355,000 1,588,409 323,428 355,000
LOUISVILLE KY
EASTGATE SHOPPING CENTER 1,945,679 7,792,717 704,388 1,945,679
MIDDLETOWN KY
SHOPPING CENTER 8,418,155 2,743,629 10,974,516 2,743,629
VERSAILLES KY
LAGNIAPPE VILLAGE 7,124,962 2,999,814 11,999,258 41,804 2,999,814
NEW IBERIA LA
SAFEWAY BUILDING 380,484 1,521,937 380,484
WEST MONROE LA
</TABLE>
<TABLE>
<CAPTION>
COLUMN A COLUMN E COLUMN F COLUMN G COLUMN H COLUMN I
-------- -------- -------- -------- -------- --------
Gross Amount at Life on
Which Carried at the Which
Close of the Period Depreciated
in Latest
Building & Accumulated Date of Date Income
Description Improvements Total Depreciation Construction Acquired Statement
----------- ------------ ----- ------------ ------------ -------- ---------
<S> <C> <C> <C> <C> <C> <C>
WABASH
SHOPPING CENTER 1,614,353 2,017,942 12,144 1989 1998 40 years
WARSAW
SHOPPING CENTER 8,971,434 11,214,293 57,293 1989 1998 40 Years
CAMPBELLSVILLE
SHOPPING CENTER 6,546,671 8,183,339 41,808 1992 1998 40 years
ELIZABETHTOWN
SHOPPING CENTER 6,592,037 8,240,047 42,098 1992 1998 40 Years
GLASGOW
JACKSON VILLAGE 3,705,542 3,990,357 855,520 1983 1988 40 Years
JACKSON
J*TOWN CENTER 4,738,518 6,069,592 1,208,377 1959 1988 40 Years
JEFFERSONTOWN
MIST LAKE PLAZA 15,759,046 19,698,807 100,640 1993 1998 40 Years
LEXINGTON
SHOPPING CENTER 9,684,065 12,105,081 61,844 1994 1998 40 years
LONDON
NEW LOUISA PLAZA 2,160,435 2,629,449 709,155 1978 1988 40 Years
LOUISA
PICCADILLY SQUARE 1,911,837 2,266,837 471,983 1973 1989 40 Years
LOUISVILLE
EASTGATE SHOPPING CENTER 8,497,105 10,442,784 1,130,235 1987 1993 40 Years
MIDDLETOWN
SHOPPING CENTER 10,974,516 13,718,145 70,085 1994 1998 40 years
VERSAILLES
LAGNIAPPE VILLAGE 12,041,062 15,040,876 76,629 1990 1998 40 Years
NEW IBERIA
SAFEWAY BUILDING 1,521,937 1,902,421 9,719 1981 1998 40 years
WEST MONROE
</TABLE>
F-36
<PAGE> 75
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III - REAL ESTATE AND ACCUMULATED DEPRECIATION
December 31, 1998
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D COLUMN E
-------- -------- -------- -------- --------
Cost
Capitalized Gross Amount at
Subsequent to Which Carried at the
Initial Cost to Company Acquisition Close of the Period
Building &
Description Encumbrances Land Improvements Improvements Land
----------- ------------ ---- ------------ ------------ ----
<S> <C> <C> <C> <C> <C> <C>
LIBERTY PLAZA 2,075,809 8,303,237 231,483 2,075,809
RANDALLSTOWN MD
SHOPPING CENTER - SALISBURY 312,650 1,833,330 86,550 312,650
SALISBURY MD
MAPLE VILLAGE SHOPPING CENTER 1,625,580 6,514,322 1,478,391 1,625,580
ANN ARBOR MI
MTN. JACKS #210303 281,162 1,124,649 281,162
DEARBORN HEIGHTS MI
FARMINGTON CROSSROADS 1,092,200 4,368,800 68,806 1,092,200
FARMINGTON MI
KINDER CARE #1182 116,614 466,456 116,614
KALAMAZOO MI
DELTA CENTER 2,405,200 9,620,800 122,447 2,405,200
LANSING MI
HAMPTON VILLAGE CENTRE 8,638,500 34,541,500 198,445 8,638,500
ROCHESTER HILLS MI
FASHION CORNERS 2,244,800 8,799,200 9,900 2,244,800
SAGINAW MI
HALL ROAD CROSSING 2,595,500 10,382,000 234,843 2,595,500
SHELBY MI
SOUTHFIELD PLAZA 2,052,995 8,180,980 (63,004) 2,052,995
SOUTHFIELD MI
DELCO PLAZA 9,600,000 1,277,504 5,109,367 47,116 1,277,504
STERLING HEIGHTS MI
ROUNDTREE PLACE 7,656,678 2,877,674 11,510,698 2,877,674
YPSILANTI MI
WASHTENAW FOUNTAIN PLAZA 1,530,281 6,121,123 361,433 1,530,281
YPSILANTI MI
FIRSTAR BANK BUILDING 323,688 1,294,751 323,688
BURNSVILLE MN
</TABLE>
<TABLE>
<CAPTION>
COLUMN A COLUMN E COLUMN F COLUMN G COLUMN H COLUMN I
-------- -------- -------- -------- -------- --------
Gross Amount at Life on
Which Carried at the Which
Close of the Period Depreciated
in Latest
Building & Accumulated Date of Date Income
Description Improvements Total Depreciation Construction Acquired Statement
----------- ------------ ----- ------------ ------------ -------- ---------
<S> <C> <C> <C> <C> <C> <C>
LIBERTY PLAZA 8,534,720 10,610,529 776,744 1962 1995 40 Years
RANDALLSTOWN
SHOPPING CENTER - SALISBURY 1,919,880 2,232,530 677,263 1973 1986 35 Years
SALISBURY
MAPLE VILLAGE SHOPPING CENTER 7,992,713 9,618,293 841,868 1965 1994 40 Years
ANN ARBOR
MTN. JACKS #210303 1,124,649 1,405,811 7,182 1980 1998 40 years
DEARBORN HEIGHTS
FARMINGTON CROSSROADS 4,437,606 5,529,806 331,600 1986 1995 40 Years
FARMINGTON
KINDER CARE #1182 466,456 583,070 2,979 1990 1998 40 Years
KALAMAZOO
DELTA CENTER 9,743,247 12,148,447 730,699 1985 1995 40 Years
LANSING
HAMPTON VILLAGE CENTRE 34,739,945 43,378,445 2,586,668 1990 1995 40 Years
ROCHESTER HILLS
FASHION CORNERS 8,809,100 11,053,900 655,358 1986 1995 40 Years
SAGINAW
HALL ROAD CROSSING 10,616,843 13,212,343 810,230 1985 1995 40 Years
SHELBY
SOUTHFIELD PLAZA 8,117,976 10,170,971 163,530 1969-70 1998 40 Years
SOUTHFIELD
DELCO PLAZA 5,156,483 6,433,987 262,923 1970,73 1996 40 Years
STERLING HEIGHTS
ROUNDTREE PLACE 11,510,698 14,388,372 73,509 1992 1998 40 Years
YPSILANTI
WASHTENAW FOUNTAIN PLAZA 6,482,556 8,012,837 1,071,937 1989 1992 40 Years
YPSILANTI
FIRSTAR BANK BUILDING 1,294,751 1,618,438 8,268 1975 1998 40 Years
BURNSVILLE
</TABLE>
F-37
<PAGE> 76
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III - REAL ESTATE AND ACCUMULATED DEPRECIATION
December 31, 1998
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D COLUMN E
-------- -------- -------- -------- --------
Cost Gross Amount at
Capitalized Which Carried
Subsequent to at the Close of
Initial Cost to Company Acquisition the Period
Building &
Description Encumbrances Land Improvements Improvements Land
----------- ------------ ---- ------------ ------------ ----
<S> <C> <C> <C> <C> <C> <C>
OFFICE BUILDING 5,657,498 2,234,667 8,938,668 10,643 2,234,667
FRIDLEY MN
OFFICE BUILDING 324,261 120,171 480,682 120,171
STILLWATER MN
FACTORY MERCHANTS BRANSON 17,669 22,312,120 11,777,940 17,669
BRANSON MO
KINDER CARE #162 44,020 176,078 44,020
FENTON MO
KINDER CARE #577 53,742 214,968 53,742
HIGH RIDGE MO
FACTORY OUTLET VILLAGE OSAGE BEACH 6,978,714 27,259,675 7,630,589 6,978,714
OSAGE BEACH MO
KMART BUILDING 310,000 1,240,000 310,000
ST. CHARLES MO
SHOPPING CENTER 600,418 2,401,671 600,418
ALBEMARLE NC
SHOPPING CENTER 3,108,108 1,155,652 4,622,609 1,155,652
ASHEBORO NC
SHOPPING CENTER - GOLDSBORO 181,998 1,014,432 55,222 181,998
GOLDSBORO NC
PIZZA HUT - PAD 40,065 225,958 40,065
GREENVILLE NC
SHOPPING CENTER 1,826,586 619,155 2,476,618 619,155
JONESVILLE NC
SHOPPING CENTER 2,344,253 882,260 3,529,040 882,260
KANNAPOLIS NC
SHOPPING CENTER 2,511,561 493,023 1,972,092 493,023
KERNERSVILLE NC
SHOPPING CENTER AND
OUTPARCELS 2,146,952 8,587,807 2,146,952
</TABLE>
<TABLE>
<CAPTION>
COLUMN A COLUMN E COLUMN F COLUMN G COLUMN H COLUMN I
-------- -------- -------- -------- -------- --------
Gross Amount at Life on
Which Carried at the Which
Close of the Period Depreciated
in Latest
Building & Accumulated Date of Date Income
Description Improvements Total Depreciation Construction Acquired Statement
----------- ------------ ----- ------------ ------------ -------- ---------
<S> <C> <C> <C> <C> <C> <C>
OFFICE BUILDING 8,949,311 11,183,978 57,084 1991 1998 40 Years
FRIDLEY
OFFICE BUILDING 480,682 600,853 3,070 1985 1998 40 years
STILLWATER
FACTORY MERCHANTS BRANSON 34,090,060 34,107,729 4,398,613 1988 1993 40 Years
BRANSON
KINDER CARE #162 176,078 220,098 1,124 1977 1998 40 years
FENTON
KINDER CARE #577 214,968 268,710 1,373 1980 1998 40 years
HIGH RIDGE
FACTORY OUTLET VILLAGE OSAGE BEACH 34,890,264 41,868,978 5,281,332 1987 1993 40 Years
OSAGE BEACH
KMART BUILDING 1,240,000 1,550,000 7,919 1981 1998 40 years
ST. CHARLES
SHOPPING CENTER 2,401,671 3,002,089 15,337 1988 1998 40 years
ALBEMARLE
SHOPPING CENTER 4,622,609 5,778,261 29,521 1988 1998 40 years
ASHEBORO
SHOPPING CENTER - GOLDSBORO 1,069,654 1,251,652 373,756 1973 1986 35 Years
GOLDSBORO
PIZZA HUT - PAD 225,958 266,023 93,052 1973 1986 35 Years
GREENVILLE
SHOPPING CENTER 2,476,618 3,095,773 15,816 1988 1998 40 years
JONESVILLE
SHOPPING CENTER 3,529,040 4,411,300 22,325 1992 1998 40 years
KANNAPOLIS
SHOPPING CENTER 1,972,092 2,465,115 12,594 1988 1998 40 years
KERNERSVILLE
SHOPPING CENTER AND
OUTPARCELS 8,587,807 10,734,769 54,843 1991 1998 40 years
</TABLE>
F-38
<PAGE> 77
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III - REAL ESTATE AND ACCUMULATED DEPRECIATION
December 31, 1998
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D
-------- -------- -------- --------
Cost
Capitalized
Subsequent to
Initial Cost to Company Acquisition
----------------------- -----------
Building &
Description Encumbrances Land Improvements Improvements
----------- ------------ ---- ------------ ------------
<S> <C> <C> <C> <C> <C>
KINSTON NC
SHOPPING CENTER 2,099,156 8,396,623
OXFORD NC
SHOPPING CENTER 1,391,213 5,564,853 35,856
ROXBORO NC
SHOPPING CENTER 5,197,041 1,709,366 6,837,464
SILER CITY NC
SHOPPING CENTER 9,455,348 5,054,136 20,216,543
STATESVILLE NC
SHOPPING CENTER 1,541,039 6,164,157
THOMASVILLE NC
SHOPPING CENTER 1,771,944 7,087,776
WADESBORO NC
SHOPPING CENTER 6,294,590 2,419,988 9,679,953
WILLIAMSTON NC
SHOPPING CENTER - WILSON 315,000 1,780,370 71,456
WILSON NC
SHOPPING CENTER 6,323,565 2,103,730 8,414,919
WINSTON-SALEM NC
AUTOWORKS #138 122,617 490,469
GRAND ISLAND NE
AUTOWORKS #125 87,784 351,135
HASTINGS NE
KMART BUILDING 520,424 2,081,697
OMAHA NE
LAUREL SQUARE 3,261,701 9,283,302 759,174
BRICKTOWN NJ
HAMILTON PLAZA 1,124,415 4,513,658 230,648
HAMILTON NJ
</TABLE>
<TABLE>
<CAPTION>
COLUMN A COLUMN E COLUMN F COLUMN G COLUMN H COLUMN I
-------- -------- -------- -------- -------- --------
Gross Amount at Which Carried at the Life on
Close of the Period Which
------------------- Depreciated
in Latest
Building & Accumulated Date of Date Income
Description Land Improvements Total Depreciation Construction Acquired Statement
----------- ---- ------------ ----- ------------ ------------ -------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
KINSTON
SHOPPING CENTER 2,099,156 8,396,623 10,495,779 53,622 1991 1998 40 Years
OXFORD
SHOPPING CENTER 1,391,213 5,600,709 6,991,923 35,837 1989 1998 40 years
ROXBORO
SHOPPING CENTER 1,709,366 6,837,464 8,546,829 43,665 1988 1998 40 years
SILER CITY
SHOPPING CENTER 5,054,136 20,216,543 25,270,678 129,106 1991 1998 40 Years
STATESVILLE
SHOPPING CENTER 1,541,039 6,164,157 7,705,196 39,365 1996 1998 40 Years
THOMASVILLE
SHOPPING CENTER 1,771,944 7,087,776 8,859,720 45,264 1988 1998 40 years
WADESBORO
SHOPPING CENTER 2,419,988 9,679,953 12,099,942 61,818 1991 1998 40 Years
WILLIAMSTON
SHOPPING CENTER - WILSON 315,000 1,851,826 2,166,826 653,182 1973 1986 35 Years
WILSON
SHOPPING CENTER 2,103,730 8,414,919 10,518,648 53,739 1995 1998 40 Years
WINSTON-SALEM
AUTOWORKS #138 122,617 490,469 613,087 3,132 1988 1998 40 years
GRAND ISLAND
AUTOWORKS #125 87,784 351,135 438,918 2,242 1988 1998 40 years
HASTINGS
KMART BUILDING 520,424 2,081,697 2,602,121 13,294 1981 1998 40 years
OMAHA
LAUREL SQUARE 3,261,701 10,042,476 13,304,177 1,651,818 1973 1992 40 Years
BRICKTOWN
HAMILTON PLAZA 1,124,415 4,744,306 5,868,721 575,638 1972 1994 40 Years
HAMILTON
</TABLE>
F-39
<PAGE> 78
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III - REAL ESTATE AND ACCUMULATED DEPRECIATION
December 31, 1998
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D
-------- -------- -------- --------
Cost
Capitalized
Subsequent to
Initial Cost to Company Acquisition
----------------------- -----------
Building &
Description Encumbrances Land Improvements Improvements
----------- ------------ ---- ------------ ------------
<S> <C> <C> <C> <C> <C>
BENNETTS MILLS PLAZA 1,794,122 6,399,888 73,207
JACKSON NJ
SIX FLAGS FACTORY OUTLET 889,214 1,249,781 27,109,466
JACKSON NJ
MIDDLETOWN PLAZA 1,204,829 1,479,487 3,715,382
MIDDLETOWN NJ
INSTITUTE FOR DEFENSE ANALYSIS 1,389,460
PRINCETON NJ
KMART BUILDING 452,213 1,808,852
SOMERVILLE NJ
TINTON FALLS PLAZA 1,884,325 6,308,392 78,693
TINTON FALLS NJ
GALLERIA COMMONS 6,584,659 26,338,637
HENDERSON NV
RENAISSANCE CENTER EAST 2,543,856 10,175,427 185,340
LAS VEGAS NV
SHOPPING CENTER 2,855,535 11,422,140
RENO NV
UNIVERSITY MALL 115,079 1,009,902 809,401
CANTON NY
CORTLANDVILLE 236,846 1,439,000 430,013
CORTLAND NY
KMART PLAZA 942,257 3,769,027 246,904
DEWITT NY
D & F PLAZA 730,512 2,156,542 1,518,651
DUNKIRK NY
SHOPPING CENTER - ELMIRA 110,116 891,205
ELMIRA NY
GENESSEE VALLEY 9,362,785 3,492,664 13,970,655
GENESEO NY
</TABLE>
<TABLE>
<CAPTION>
COLUMN A COLUMN E COLUMN F COLUMN G COLUMN H COLUMN I
-------- -------- -------- -------- -------- --------
Gross Amount at Which Carried at the Life on
Close of the Period Which
------------------------------------------ Depreciated
in Latest
Building & Accumulated Date of Date Income
Description Land Improvements Total Depreciation Construction Acquired Statement
----------- ---- ------------ ----- ------------ ------------ -------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
BENNETTS MILLS PLAZA 1,794,122 6,473,095 8,267,217 690,887 1988 1994 40 Years
JACKSON
SIX FLAGS FACTORY OUTLET 889,214 28,359,247 29,248,461 1,024,495 1997 1997 40 Years
JACKSON
MIDDLETOWN PLAZA 1,204,829 5,194,869 6,399,698 1,975,246 1972 1976 40 Years
MIDDLETOWN
INSTITUTE FOR DEFENSE ANALYSIS 1,389,460 1,389,460 710,447 1982 1974 35 Years
PRINCETON
KMART BUILDING 452,213 1,808,852 2,261,065 11,552 1982 1998 40 years
SOMERVILLE
TINTON FALLS PLAZA 1,884,325 6,387,085 8,271,410 138,896 1953 1998 40 Years
TINTON FALLS
GALLERIA COMMONS 6,584,659 26,338,637 32,923,297 168,202 1997-98 1998 40 Years
HENDERSON
RENAISSANCE CENTER EAST 2,543,856 10,360,767 12,904,623 582,999 1981 1996 40 Years
LAS VEGAS
SHOPPING CENTER 2,855,535 11,422,140 14,277,675 72,943 1974 1997 40 Years
RENO
UNIVERSITY MALL 115,079 1,819,303 1,934,382 978,278 1967 1976 40 Years
CANTON
CORTLANDVILLE 236,846 1,869,013 2,105,859 489,930 1984 1987 35 Years
CORTLAND
KMART PLAZA 942,257 4,015,931 4,958,188 533,698 1970 1993 40 Years
DEWITT
D & F PLAZA 730,512 3,675,193 4,405,705 1,095,552 1967 1986 40 Years
DUNKIRK
SHOPPING CENTER - ELMIRA 110,116 891,205 1,001,321 220,017 1976 1989 40 Years
ELMIRA
GENESSEE VALLEY 3,492,664 13,970,655 17,463,319 89,219 1993 1998 40 Years
GENESEO
</TABLE>
F-40
<PAGE> 79
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III - REAL ESTATE AND ACCUMULATED DEPRECIATION
December 31, 1998
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D
-------- -------- -------- --------
Cost Gross Amount at
Capitalized Which Carried
Subsequent to at the Close of
Initial Cost to Company Acquisition the Period
----------------------- ----------- ---------------
Building &
Description Encumbrances Land Improvements Improvements Land
----------- ------------ ---- ------------ ------------ ----
<S> <C> <C> <C> <C> <C> <C>
PYRAMID MALL 2,175,221 8,700,884 130,112 2,175,221
GENEVA NY
SHOPPING CENTER - GLOVERSVILLE 139,429 524,517 104,564 139,429
GLOVERSVILLE NY
MCKINLEY PLAZA 1,246,680 4,986,720 123,938 1,246,680
HAMBURG NY
HORNELL PLAZA - 20,088,582 -
HORNELL NY
CAYUGA PLAZA 1,397,708 5,591,832 504,127 1,397,708
ITHACA NY
SHOPS @ SENECA MALL 1,545,838 6,183,353 608,752 1,545,838
LIVERPOOL NY
TRANSIT ROAD PLAZA 424,634 1,698,537 411,938 424,634
LOCKPORT NY
SHOPPING CENTER - MARCY 400,000 2,231,817 94,207 400,000
MARCY NY
WALLKILL PLAZA 18,221,501 2,445,200 8,580,800 148,852 2,445,200
MIDDLETOWN NY
MONROE SHOPRITE PLAZA 1,026,477 8,642,364 80,406 1,026,477
MONROE NY
ROCKLAND PLAZA 3,990,842 3,570,410 5,249,876 3,990,842
NANUET NY
SOUTH PLAZA 508,013 1,051,638 1,583,556 508,013
NORWICH NY
WESTGATE PLAZA - ONEONTA 142,821 1,192,103 272,942 142,821
ONEONTA NY
OSWEGO PLAZA 250,000 1,168,027 2,577,573 250,000
OSWEGO NY
MOHAWK ACRES 241,606 1,268,890 1,547,899 241,606
ROME NY
</TABLE>
<TABLE>
<CAPTION>
COLUMN A COLUMN E COLUMN F COLUMN G COLUMN H COLUMN I
-------- -------- -------- -------- -------- --------
Gross Amount at Which Carried at the Life on
Close of the Period Which
------------------- Depreciated
in Latest
Building & Accumulated Date of Date Income
Description Improvements Total Depreciation Construction Acquired Statement
----------- ------------ ----- ------------ ------------ -------- ---------
<S> <C> <C> <C> <C> <C> <C>
PYRAMID MALL 8,830,996 11,006,217 1,189,643 1973 1993 40 Years
GENEVA
SHOPPING CENTER - GLOVERSVILLE 629,081 768,510 154,687 1974 1988 40 Years
GLOVERSVILLE
MCKINLEY PLAZA 5,110,658 6,357,338 894,323 1991 1992 40 Years
HAMBURG
HORNELL PLAZA 20,088,582 20,088,582 128,289 1995 1998 40 Years
HORNELL
CAYUGA PLAZA 6,095,959 7,493,667 1,465,270 1969 1989 40 Years
ITHACA
SHOPS @ SENECA MALL 6,792,105 8,337,943 879,664 1971 1993 40 Years
LIVERPOOL
TRANSIT ROAD PLAZA 2,110,475 2,535,109 271,560 1971 1993 40 Years
LOCKPORT
SHOPPING CENTER - MARCY 2,326,024 2,726,024 839,627 1971 1986 35 Years
MARCY
WALLKILL PLAZA 8,729,652 11,174,852 648,691 1986 1995 40 Years
MIDDLETOWN
MONROE SHOPRITE PLAZA 8,722,770 9,749,247 262,739 1972 1997 40 Years
MONROE
ROCKLAND PLAZA 8,820,286 12,811,128 3,577,574 1963 1983 40 Years
NANUET
SOUTH PLAZA 2,635,194 3,143,207 1,118,274 1967 1983 40 Years
NORWICH
WESTGATE PLAZA - ONEONTA 1,465,045 1,607,866 585,660 1967 1984 40 Years
ONEONTA
OSWEGO PLAZA 3,745,600 3,995,600 1,476,969 1966 1977 40 Years
OSWEGO
MOHAWK ACRES 2,816,789 3,058,395 943,306 1965 1984 40 Years
</TABLE>
F-41
<PAGE> 80
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III - REAL ESTATE AND ACCUMULATED DEPRECIATION
December 31, 1998
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D COLUMN E
-------- -------- -------- -------- --------
Gross Amount
Cost at Which
Capitalized Carried at the
Subsequent to Close of the
Initial Cost to Company Acquisition Period
----------------------- ----------- --------------
Building &
Description Encumbrances Land Improvements Improvements Land
----------- ------------ ---- ------------ ------------ ----
<S> <C> <C> <C> <C> <C> <C>
ROME NY
MONTGOMERY WARD 93,341 483,405 231,437 93,341
ROME NY
PRICE CHOPPER PLAZA 933,792 3,735,170 933,792
ROME NY
WESTGATE MANOR PLAZA - ROME 211,711 391,982 816,709 211,711
ROME NY
NORTHLAND 16,182 255,557 823,737 16,182
WATERTOWN NY
SHOPPING CENTER 1,912,323 7,649,291 1,912,323
ASHLAND OH
HARBOR PLAZA 388,997 1,456,108 253,099 388,997
ASHTABULA OH
BELPRE PLAZA 2,066,121 140,189
BELPRE OH
SOUTHWOOD PLAZA 707,073 1,537,519 879,270 707,073
BOWLING GREEN OH
SHOPPING CENTER 937,772 3,751,086 27,120 937,772
CELINA OH
BRENTWOOD PLAZA 2,027,969 8,222,875 630,901 2,027,969
CINCINNATI OH
DELHI SHOPPING CENTER 2,300,029 9,218,117 23,207 2,300,029
CINCINNATI OH
WESTERN VILLAGE SHOPPING CENTER 1,321,484 5,300,935 117,335 1,321,484
CINCINNATI OH
CROWN POINT SHOPPING CENTER 7,823,966 2,881,681 7,958,319 8,564 2,881,681
COLUMBUS OH
RIVER RUN CENTRE 2,833,351 1,008,861 4,035,444 1,008,861
COSHOCTON OH
</TABLE>
<TABLE>
<CAPTION>
COLUMN A COLUMN E COLUMN F COLUMN G COLUMN H COLUMN I
-------- -------- -------- -------- -------- --------
Gross Amount at Which Carried at the Life on
Close of the Period Which
------------------- Depreciated
in Latest
Building & Accumulated Date of Date Income
Description Improvements Total Depreciation Construction Acquired Statement
----------- ------------ ----- ------------ ------------ -------- ---------
<S> <C> <C> <C> <C> <C> <C>
ROME NY
MONTGOMERY WARD 714,842 808,183 280,465 1965 1984 40 Years
ROME
PRICE CHOPPER PLAZA 3,735,170 4,668,962 502,252 1988 1993 40 Years
ROME
WESTGATE MANOR PLAZA - ROME 1,208,691 1,420,402 296,138 1961 1986 40 Years
ROME
NORTHLAND 1,079,294 1,095,476 350,633 1962 1973 40 Years
WATERTOWN
SHOPPING CENTER 7,649,291 9,561,614 48,850 1990 1998 40 years
ASHLAND
HARBOR PLAZA 1,709,207 2,098,204 357,743 1988 1991 40 Years
ASHTABULA
BELPRE PLAZA 2,206,310 2,206,310 624,217 1969 1988 40 Years
BELPRE
SOUTHWOOD PLAZA 2,416,789 3,123,862 789,527 1961 1990 40 Years
BOWLING GREEN
SHOPPING CENTER 3,778,206 4,715,978 25,838 1990 1998 40 years
CELINA
BRENTWOOD PLAZA 8,853,776 10,881,745 986,748 1957 1994 40 Years
CINCINNATI
DELHI SHOPPING CENTER 9,241,324 11,541,353 586,777 1973,85,87 1996 40 Years
CINCINNATI
WESTERN VILLAGE SHOPPING CENTER 5,418,270 6,739,754 626,669 1960 1994 40 Years
CINCINNATI
CROWN POINT SHOPPING CENTER 7,966,883 10,848,564 132,833 1980-85,97 1998 40 Years
COLUMBUS
RIVER RUN CENTRE 4,035,444 5,044,305 25,771 1992 1998 40 Years
COSHOCTON
</TABLE>
F-42
<PAGE> 81
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III - REAL ESTATE AND ACCUMULATED DEPRECIATION
December 31, 1998
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D COLUMN E
-------- -------- -------- -------- --------
Cost Gross Amount at
Capitalized Which Carried at
Subsequent to the Close of the
Initial Cost to Company Acquisition Period
----------------------- ----------- ----------------
Building &
Description Encumbrances Land Improvements Improvements Land
----------- ------------ ---- ------------ ------------ ----
<S> <C> <C> <C> <C> <C> <C>
SOUTH TOWNE CENTRE 4,737,368 9,636,943 1,564,282 4,737,368
DAYTON OH
HERITAGE SQUARE 1,749,182 7,011,927 59,707 1,749,182
DOVER OH
MIDWAY CROSSING 1,944,200 7,776,800 179,675 1,944,200
ELYRIA OH
FAIRFIELD MALL 1,287,649 1,685,919 101,962 1,287,649
FAIRFIELD OH
SILVER BRIDGE PLAZA 919,022 3,197,673 1,490,228 919,022
GALLIPOLIS OH
SHOPPING CENTER - GENOA 96,001 1,016,349 96,001
GENOA OH
PARKWAY PLAZA 950,667 2,069,921 466,216 950,667
MAUMEE OH
NEW BOSTON SHOPPING CENTER 2,102,371 9,176,918 128,373 2,102,371
NEW BOSTON OH
MARKET PLACE 597,923 3,738,164 403,895 597,923
PIQUA OH
BRICE PARK SHOPPING CENTER 5,136,931 4,854,414 10,204,698 5,545 4,854,414
REYNOLDSBURG OH
CENTRAL AVE MARKET PLACE 1,046,480 1,769,207 381,861 1,046,480
TOLEDO OH
GREENTREE SHOPPING CENTER 6,732,454 3,379,200 6,860,800 3,379,200
UPPER ARLINGTON OH
SAFEWAY BUILDING 466,464 1,865,857 466,464
MUSKOGEE OK
BETHEL PARK PLAZA 868,039 9,933,094 888,266 868,039
BETHEL PARK PA
KROGER BUILDING 349,418 1,397,671 349,418
CLEARFIELD PA
</TABLE>
<TABLE>
<CAPTION>
COLUMN A COLUMN E COLUMN F COLUMN G COLUMN H COLUMN I
-------- -------- -------- -------- -------- --------
Gross Amount at Which Carried at the Life on
Close of the Period Which
------------------- Depreciated
in Latest
Building & Accumulated Date of Date Income
Description Improvements Total Depreciation Construction Acquired Statement
----------- ------------ ----- ------------ ------------ -------- ---------
<S> <C> <C> <C> <C> <C> <C>
SOUTH TOWNE CENTRE 11,201,225 15,938,593 2,061,034 1972 1992 40 Years
DAYTON
HERITAGE SQUARE 7,071,634 8,820,816 988,601 1959 1993 40 Years
DOVER
MIDWAY CROSSING 7,956,475 9,900,675 585,046 1986 1995 40 Years
ELYRIA
FAIRFIELD MALL 1,787,881 3,075,530 393,357 1978 1990 40 Years
FAIRFIELD
SILVER BRIDGE PLAZA 4,687,901 5,606,923 1,826,085 1972 1986 40 Years
GALLIPOLIS
SHOPPING CENTER - GENOA 1,016,349 1,112,350 198,155 1987 1991 40 Years
GENOA
PARKWAY PLAZA 2,536,137 3,486,804 572,411 1955 1989 40 Years
MAUMEE
NEW BOSTON SHOPPING CENTER 9,305,291 11,407,662 1,363,313 1991 1993 40 Years
NEW BOSTON
MARKET PLACE 4,142,059 4,739,982 857,770 1972 1991 40 Years
PIQUA
BRICE PARK SHOPPING CENTER 10,210,243 15,064,657 181,170 1989-92 1998 40 Years
REYNOLDSBURG
CENTRAL AVE MARKET PLACE 2,151,068 3,197,548 435,396 1968 1990 40 Years
TOLEDO
GREENTREE SHOPPING CENTER 6,860,800 10,240,000 114,347 1974,80,91 1998 40 Years
UPPER ARLINGTON
SAFEWAY BUILDING 1,865,857 2,332,321 11,916 1981 1998 40 years
MUSKOGEE
BETHEL PARK PLAZA 10,821,360 11,689,399 451,976 1965 1997 40 Years
BETHEL PARK
KROGER BUILDING 1,397,671 1,747,088 8,926 1982 1998 40 years
CLEARFIELD
</TABLE>
F-43
<PAGE> 82
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III - REAL ESTATE AND ACCUMULATED DEPRECIATION
December 31, 1998
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D COLUMN E
-------- -------- -------- -------- --------
Cost
Capitalized
Subsequent to Gross Amount at Which Carried at the
Initial Cost to Company Acquisition Close of the Period
----------------------- ------------ -------------------
Building & Building &
Description Encumbrances Land Improvements Improvements Land Improvement Total
----------- ------------ ---- ------------ ------------ ---- ----------- -----
<S> <C> <C> <C> <C> <C> <C> <C>
DILLSBURG SHOPPING 1,166,376 4,665,505 1,166,376 4,665,505 5,831,881
CENTER DILLSBURG PA
SHOPPING CENTER 3,356,245 13,424,980 3,356,245 13,424,980 16,781,225
ELIZABETHTOWN PA
HARDEES - PAD 400,000 400,000 400,000
HANOVER PA
SHOPPING CENTER 3,673,459 1,522,216 6,088,864 1,522,216 6,088,864 7,611,079
JOHNSTOWN PA
NEW GARDEN SHOPPING 912,130 3,161,495 (17,349) 912,130 3,144,146 4,056,276
CENTER KENNETT
SQUARE PA
STONEMILL PLAZA 1,407,975 5,650,901 58,389 1,407,975 5,709,290 7,117,265
LANCASTER PA
CROSSROADS PLAZA 384,882 1,040,668 368,438 384,882 1,409,106 1,793,988
MT. PLEASANT PA
ACME MARKET 227,720 1,398,726 227,720 1,398,726 1,626,446
PHILADELPHIA PA
IVYRIDGE SHOPPING CENTER 1,504,080 6,026,320 810,424 1,504,080 6,836,744 8,340,824
PHILADELPHIA PA
ROOSEVELT MALL ANNEX 159,703 91,798 1,076,586 159,703 1,168,384 1,328,087
PHILADELPHIA PA
ROOSEVELT MALL NE 1,772,003 2,602,635 6,578,787 1,772,003 9,181,422 10,953,425
PHILADELPHIA PA
STRAWBRIDGE'S 605,607 3,923,050 605,607 3,923,050 4,528,657
PHILADELPHIA PA
LUCKY BUILDING 503,170 2,012,679 503,170 2,012,679 2,515,849
PITTSBURGH PA
ST MARY'S PLAZA 977,711 3,910,842 136,029 977,711 4,046,871 5,024,582
ST. MARY'S PA
NORTHLAND CENTER 1,198,947 4,824,500 77,156 1,198,947 4,901,656 6,100,603
</TABLE>
<TABLE>
<CAPTION>
COLUMN A COLUMN F COLUMN G COLUMN H COLUMN I
-------- -------- -------- -------- --------
Life on
Which
Depreciated
in Latest
Accumulated Date of Date Income
Description Depreciation Construction Acquired Statement
----------- ------------ ------------ -------- ------------
<S> <C> <C> <C> <C>
DILLSBURG SHOPPING 257,523 1994 1996 40 Years
CENTER DILLSBURG PA
SHOPPING CENTER 85,734 1993-94 1998 40 Years
ELIZABETHTOWN PA
HARDEES - PAD 14,583 1971 1997 35 Years
HANOVER PA
SHOPPING CENTER 38,884 1993 1998 40 Years
JOHNSTOWN PA
NEW GARDEN SHOPPING 130,651 1979 1997 40 Years
CENTER KENNETT
SQUARE PA
STONEMILL PLAZA 708,715 1988 1994 40 Years
LANCASTER PA
CROSSROADS PLAZA 347,696 1975 1988 40 Years
MT. PLEASANT PA
ACME MARKET 13,094 1980 1998 40 Years
PHILADELPHIA PA
IVYRIDGE SHOPPING CENTER 527,067 1963 1995 40 Years
PHILADELPHIA PA
ROOSEVELT MALL ANNEX 620,436 1958 1974 40 Years
PHILADELPHIA PA
ROOSEVELT MALL NE 4,811,010 1964 1964 40 Years
PHILADELPHIA PA
STRAWBRIDGE'S 3,923,050 1964 1964 35 Years
PHILADELPHIA PA
LUCKY BUILDING 12,853 1982 1998 40 years
PITTSBURGH PA
ST MARY'S PLAZA 427,073 1970 1994 40 Years
ST. MARY'S PA
NORTHLAND CENTER 871,611 1988 1992 40 Years
</TABLE>
F-44
<PAGE> 83
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III - REAL ESTATE AND ACCUMULATED DEPRECIATION
December 31, 1998
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D COLUMN E
-------- -------- -------- -------- --------
Cost
Capitalized
Subsequent to Gross Amount at Which Carried at the
Initial Cost to Company Acquisition Close of the Period
----------------------- ------------ -------------------
Building & Building &
Description Encumbrances Land Improvements Improvements Land Improvement Total
----------- ------------ ---- ------------ ------------ ---- ----------- -----
<S> <C> <C> <C> <C> <C> <C> <C>
STATE COLLEGE PA
HAMPTON SQUARE SHOPPING 1,214,400 2,465,600 1,214,400 2,465,600 3,680,000
CENTER UPPER SO.
HAMPTON PA
SHOPS AT PROSPECT 741,941 2,967,765 70,154 741,941 3,037,919 3,779,860
WEST HEMPFIELD PA
YORK MARKETPLACE 3,199,353 12,797,412 1,316,020 3,199,353 14,113,432 17,312,785
YORK PA
SHOPPING CENTER 3,882,406 1,367,252 5,469,006 1,367,252 5,469,006 6,836,258
N. CHARLESTON SC
SHOPPING CENTER 5,042,879 1,472,830 5,891,318 1,472,830 5,891,318 7,364,147
HILTON HEAD SC
SHOPPING CENTER 2,444,592 473,111 1,892,443 473,111 1,892,443 2,365,554
HILTON HEAD SC
KROGER BUILDING 371,529 1,486,116 371,529 1,486,116 1,857,646
JAMES ISLAND SC
SHOPPING CENTER 2,709,529 10,838,118 2,709,529 10,838,118 13,547,647
JAMES ISLAND SC
CONGRESS CROSSING 1,098,351 6,747,013 84,281 1,098,351 6,831,294 7,929,645
ATHENS TN
WINN DIXIE BUILDING 578,450 2,313,798 578,450 2,313,798 2,892,248
CHATANNOOGA TN
SHOPPING CENTER 4,298,095 1,423,187 5,692,747 1,423,187 5,692,747 7,115,934
CHATTANOOGA TN
SHOPPING CENTER 4,783,273 1,612,925 6,451,700 1,612,925 6,451,700 8,064,625
COLLEGEDALE TN
SADDLE TREE VILLAGE 2,059,719 658,676 2,634,704 658,676 2,634,704 3,293,380
COLUMBIA TN
WEST TOWNE SQUARE 529,103 3,880,088 1,023,701 529,103 4,903,789 5,432,892
SHOPPING CENTER
ELIZABETHTON TN
</TABLE>
<TABLE>
<CAPTION>
COLUMN A COLUMN F COLUMN G COLUMN H COLUMN I
-------- -------- -------- -------- --------
Life on
Which
Depreciated
in Latest
Accumulated Date of Date Income
Description Depreciation Construction Acquired Statement
----------- ------------ ------------ -------- ------------
<S> <C> <C> <C> <C>
STATE COLLEGE PA
HAMPTON SQUARE SHOPPING 2,568 1980 1998 40 Years
CENTER UPPER SO.
HAMPTON PA
SHOPS AT PROSPECT 268,635 1994 1995 40 Years
WEST HEMPFIELD PA
YORK MARKETPLACE 1,251,345 1955 1995 40 Years
YORK PA
SHOPPING CENTER 34,926 1996 1998 40 Years
N. CHARLESTON SC
SHOPPING CENTER 37,623 1989 1998 40 years
HILTON HEAD SC
SHOPPING CENTER 12,085 1994 1998 40 Years
HILTON HEAD SC
KROGER BUILDING 9,491 1982 1998 40 years
JAMES ISLAND SC
SHOPPING CENTER 69,214 1993-94 1998 40 Years
JAMES ISLAND SC
CONGRESS CROSSING 1,184,081 1990 1992 40 Years
ATHENS TN
WINN DIXIE BUILDING 14,776 1995 1998 40 Years
CHATANNOOGA TN
SHOPPING CENTER 36,355 1995 1998 40 Years
CHATTANOOGA TN
SHOPPING CENTER 41,202 1997 1998 40 Years
COLLEGEDALE TN
SADDLE TREE VILLAGE 16,826 1990 1998 40 Years
COLUMBIA TN
WEST TOWNE SQUARE 64,720 1970,1998 1998 40 Years
SHOPPING CENTER
ELIZABETHTON TN
</TABLE>
F-45
<PAGE> 84
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III - REAL ESTATE AND ACCUMULATED DEPRECIATION
December 31, 1998
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D COLUMN E
-------- -------- -------- -------- --------
Cost
Capitalized
Subsequent to Gross Amount at Which Carried at the
Initial Cost to Company Acquisition Close of the Period
----------------------- ------------ -------------------
Building & Building &
Description Encumbrances Land Improvements Improvements Land Improvement Total
----------- ------------ ---- ------------ ------------ ---- ----------- -----
<S> <C> <C> <C> <C> <C> <C> <C>
GREENEVILLE COMMONS 1,075,200 7,884,800 23,156 1,075,200 7,907,956 8,983,156
GREENEVILLE TN
SHOPPING CENTER 883,031 3,532,122 883,031 3,532,122 4,415,153
HENDERSONVILLE TN
SHOPPING CENTER 3,688,852 14,755,406 12,500 3,688,852 14,767,906 18,456,758
KIMBALL TN
KINGS GIANT SHOPPING 2,500,633 268,686 2,769,319 2,769,319
CENTER KINGSPORT TN
SHOPPING CENTER 6,006,762 2,283,168 9,132,672 (49,105) 2,273,347 9,093,387 11,366,734
KNOXVILLE TN
SHOPPING CENTER 773,263 3,093,053 773,263 3,093,053 3,866,316
MANCHESTER TN
GEORGETOWN SQUARE 1,166,924 4,674,698 208,425 1,166,924 4,883,123 6,050,047
MURFREESBORO TN
SHOPPING CENTER 699,799 2,799,195 1,246 699,799 2,800,441 3,500,240
SHELBYVILLE TN
SHOPPING CENTER 9,110,071 2,831,598 11,326,392 2,831,598 11,326,392 14,157,990
TULLAHOMA TN
SHOPPING CENTER 2,777,062 11,108,246 2,777,062 11,108,246 13,885,308
WINCHESTER TN
SHOPPING CENTER 7,147,858 28,591,433 7,147,858 28,591,433 35,739,291
ARLINGTON TX
KMART BUILDING 517,921 2,071,685 517,921 2,071,685 2,589,606
DE SOTO TX
DHG (Beechnut) 70,000 280,000 70,000 280,000 350,000
HOUSTON TX
DHG (Bellaire) 55,000 220,000 55,000 220,000 275,000
HOUSTON TX
SHOPPING CENTER 3,092,614 933,850 3,735,400 933,850 3,735,400 4,669,250
IRVING TX
</TABLE>
<TABLE>
<CAPTION>
COLUMN A COLUMN F COLUMN G COLUMN H COLUMN I
-------- -------- -------- -------- --------
Life on
Which
Depreciated
in Latest
Accumulated Date of Date Income
Description Depreciation Construction Acquired Statement
----------- ------------ ------------ -------- ------------
<S> <C> <C> <C> <C>
GREENEVILLE COMMONS 1,360,474 1990 1992 40 Years
GREENEVILLE TN
SHOPPING CENTER 22,557 1989 1998 40 years
HENDERSONVILLE TN
SHOPPING CENTER 94,295 1987 1998 40 Years
KIMBALL TN
KINGS GIANT SHOPPING 471,817 1970 1992 40 Years
CENTER KINGSPORT TN
SHOPPING CENTER 58,323 1990 1998 40 Years
KNOXVILLE TN
SHOPPING CENTER 19,753 1990 1998 40 years
MANCHESTER TN
GEORGETOWN SQUARE 751,655 1986 1993 40 Years
MURFREESBORO TN
SHOPPING CENTER 17,876 1985 1998 40 Years
SHELBYVILLE TN
SHOPPING CENTER 72,332 1995 1998 40 Years
TULLAHOMA TN
SHOPPING CENTER 70,939 1997 1998 40 Years
WINCHESTER TN
SHOPPING CENTER 182,589 1992-93 1998 40 Years
ARLINGTON TX
KMART BUILDING 13,230 1980 1998 40 years
DE SOTO TX
DHG (Beechnut) 1,788 1985 1998 40 years
HOUSTON TX
DHG (Bellaire) 1,405 1985 1998 40 years
HOUSTON TX
SHOPPING CENTER 23,855 1987 1998 40 years
IRVING TX
</TABLE>
F-46
<PAGE> 85
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III - REAL ESTATE AND ACCUMULATED DEPRECIATION
December 31, 1998
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D COLUMN E
-------- -------- -------- -------- --------
Cost
Capitalized
Subsequent to Gross Amount at Which Carried at the
Initial Cost to Company Acquisition Close of the Period
----------------------- ------------ -------------------
Building & Building &
Description Encumbrances Land Improvements Improvements Land Improvement Total
----------- ------------ ---- ------------ ------------ ---- ----------- -----
<S> <C> <C> <C> <C> <C> <C> <C>
KROGER BUILDING 381,512 1,526,050 381,512 1,526,050 1,907,562
MISSOURI CITY TX
EL CHICO REST. #75 AND
OUTPARCEL TEMPLE TX 446,686 487,294 446,686 487,294 933,980
SHOPPING CENTER 17,885,496 9,864,539 39,458,154 623,429 9,864,539 40,081,583 49,946,122
WEST VALLEY UT
SHOPPING CENTER - 290,000 792,441 290,000 792,441 1,082,441
COLONIAL HTS VA
COLONIAL HEIGHTS
PIZZA HUT - PAD 427,500 427,500 427,500
VA
FACTORY MERCHANTS 411,023 1,644,017 1,046,535 411,023 2,690,552 3,101,575
FT CHISWELL MAX
MEADOWS VA
HANOVER SQUARE SHOPPING 1,778,701 7,114,805 210,309 1,778,701 7,325,114 9,103,815
CENTER MECHANICSVILLE VA
VICTORIAN SQUARE 3,548,432 14,208,727 115,710 3,548,432 14,324,437 17,872,869
MIDLOTHIAN VA
SHOPPING CENTER 2,685,565 10,742,259 2,685,565 10,742,259 13,427,823
NORTON VA
CAVE SPRING CORNERS 1,064,298 4,257,792 3,720 1,064,298 4,261,512 5,325,810
SHOPPING ROANOKE CENTER VA
HUNTING HILLS SHOPPING 4,294,817 1,897,007 6,010,376 1,897,007 6,010,376 7,907,383
ROANOKE CENTER VA
SHOPPING CENTER - 250,000 1,363,880 260,466 250,000 1,624,346 1,874,346
SPOTSYLVANIA
SPOTSYLVANIA VA
LAKE DRIVE PLAZA 3,843,899 1,432,155 4,616,848 18,600 1,432,155 4,635,448 6,067,603
VINTON VA
RIDGEVIEW CENTRE 2,707,679 4,417,792 567,515 2,707,679 4,985,307 7,692,986
WISE VA
MOUNDSVILLE PLAZA 228,283 1,989,798 5,119,516 228,283 7,109,314 7,337,597
MOUNDSVILLE WV
</TABLE>
<TABLE>
<CAPTION>
COLUMN A COLUMN F COLUMN G COLUMN H COLUMN I
-------- -------- -------- -------- --------
Life on
Which
Depreciated
in Latest
Accumulated Date of Date Income
Description Depreciation Construction Acquired Statement
----------- ------------ ------------ -------- ------------
<S> <C> <C> <C> <C>
KROGER BUILDING 9,746 1982 1998 40 years
MISSOURI CITY TX
EL CHICO REST. #75 AND
OUTPARCEL TEMPLE TX 3,112 1998 40 Years
SHOPPING CENTER 251,986 1970 1998 40 Years
WEST VALLEY UT
SHOPPING CENTER - 286,789 1972 1986 35 Years
COLONIAL HTS VA
COLONIAL HEIGHTS
PIZZA HUT - PAD 29,518 1969 1996 35 Years
VA
FACTORY MERCHANTS 990,970 1989 1993 40 Years
FT CHISWELL MAX
MEADOWS VA
HANOVER SQUARE SHOPPING 1,178,757 1991 1993 40 Years
CENTER MECHANICSVILLE VA
VICTORIAN SQUARE 1,723,386 1991 1994 40 Years
MIDLOTHIAN VA
SHOPPING CENTER 66,914 1989 1998 40 years
NORTON VA
CAVE SPRING CORNERS 163,978 1969 1997 40 Years
SHOPPING ROANOKE CENTER VA
HUNTING HILLS SHOPPING 106,434 1989 1998 40 Years
ROANOKE CENTER VA
SHOPPING CENTER - 518,486 1970 1986 35 Years
SPOTSYLVANIA
SPOTSYLVANIA VA
LAKE DRIVE PLAZA 82,183 1976 1998 40 Years
VINTON VA
RIDGEVIEW CENTRE 798,906 1990 1992 40 Years
WISE VA
MOUNDSVILLE PLAZA 996,381 1961 1988 40 Years
</TABLE>
F-47
<PAGE> 86
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III - REAL ESTATE AND ACCUMULATED DEPRECIATION
December 31, 1998
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D COLUMN E
-------- -------- -------- -------- --------
Cost
Capitalized
Subsequent to Gross Amount at Which Carried at the
Initial Cost to Company Acquisition Close of the Period
----------------------- ------------ -------------------
Building & Building &
Description Encumbrances Land Improvements Improvements Land Improvement Total
----------- ------------ ---- ------------ ------------ ---- ----------- -----
<S> <C> <C> <C> <C> <C> <C> <C>
MOUNDSVILLE WV
GRAND CENTRAL PLAZA 4,358,333 153,150 4,511,483 4,511,483
PARKERSBURG WV
KMART PLAZA 664,121 2,656,483 143,331 664,121 2,799,814 3,463,935
VIENNA WV
ROXBURY TOWNSHIP NJ 262,878 13,338 262,878 13,338 276,216
ROXBURY NJ
EAST HARTSDALE AVE. 18,235 18,235 18,235
HARTSDALE NY
388,185,135 545,357,775 2,118,378,190 161,734,035 545,400,862 2,280,069,138 2,825,470,000
====================================================================================================
</TABLE>
<TABLE>
<CAPTION>
COLUMN A COLUMN F COLUMN G COLUMN H COLUMN I
-------- -------- -------- -------- --------
Life on
Which
Depreciated
in Latest
Accumulated Date of Date Income
Description Depreciation Construction Acquired Statement
----------- ------------ ------------ -------- ------------
<S> <C> <C> <C> <C>
MOUNDSVILLE WV
GRAND CENTRAL PLAZA 1,181,169 1986 1988 40 Years
PARKERSBURG WV
KMART PLAZA 398,332 1975 1993 40 Years
VIENNA WV
ROXBURY TOWNSHIP NJ 1998 1997
ROXBURY NJ
EAST HARTSDALE AVE. 1972
HARTSDALE NY
158,021,704
===========
</TABLE>
F-48
<PAGE> 87
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III - REAL ESTATE AND ACCUMULATED DEPRECIATION
DECEMBER 31, 1998
(IN THOUSANDS)
----------
<TABLE>
<CAPTION>
YEAR ENDED
FIVE MONTHS ENDED JULY 31,
DECEMBER 31, ----------------------------------------------
1998 1998 1997 1996
----------------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
[a] Reconciliation of total real estate carrying
value is as follows:
Balance at beginning of year $ 1,452,738 $ 1,277,775 $ 977,942 $ 765,080
Acquisitions and improvements 40,057 174,963 305,390 218,529
Merger 1,332,714 -- -- --
Cost of property sold (40) -- (5,557) (5,667)
----------- ----------- ----------- -----------
Balance at end of year $ 2,825,469 $ 1,452,738 $ 1,277.775 $ 977,942
=========== =========== =========== ===========
Total cost for federal income tax purposes
at the end of each year $ 2,478,694 $ 1,452,738 $ 1,277.775 $ 977,942
=========== =========== =========== ===========
[b] Reconciliation of accumulated depreciation is
as follows:
Balance at beginning of year $ 136,978 $ 105,866 $ 82,523 $ 64,007
Depreciation expense 21,043 31,112 24,620 19,724
Deletions - property sold -- -- (1,278) (1,208)
----------- ----------- ----------- -----------
Balance at end of year $ 158,021 $ 136,978 $ 105,866 $ 82,523
=========== =========== =========== ===========
</TABLE>
F-49
<PAGE> 88
NEW PLAN EXCEL REALTY TRUST AND SUBSIDIARIES
MORTGAGE LOANS ON REAL ESTATE
(Amounts in Thousands)
SCHEDULE IV
December 31, 1998
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D
- -------- -------- -------- --------
Final Face
Interest Maturity Periodic
Description Rate Date Payment Terms
- ----------- ---- ---- -------------
<S> <C> <C> <C>
Purchase money first mortgage,
collateralized by a shopping center in Interest payable monthly,
Connellsville, PA balance at maturity
10% 8/31/1999
Interest payable monthly,
Purchase money first mortgage, $45,000 principal per month
collateralized by a shopping center in for 17 months, balance at
Whitesboro, NY maturity
9.38% 7/31/1999
Leasehold mortgage, collateralized by a Interest and principal payable
tenant lease monthly
11.5% 4/30/2004
Leasehold mortgage, collateralized by a Interest and principal payable
tenant lease monthly
12% 5/1/2008
Purchase money first mortgage, Interest payable monthly,
collateralized by a shopping center in balance at maturity
Harrisonburg, VA 9% 7/22/2000
Purchase money first mortgage, Interest payable quarterly and
collateralized by a shopping center in principal payable at maturity
New Bern, NC
7.2% 5/9/2001
Purchase money first mortgage Interest payable monthly and
collateralized by shopping center in principal payable at maturity
Hanover, PA
8.75% 7/23/2001
Leasehold mortgage collateralized by a Interest and principal payable
tenant lease monthly
10% 5/31/2008
</TABLE>
<TABLE>
<CAPTION>
COLUMN A COLUMN E COLUMN F COLUMN G
- -------- -------- -------- --------
Face Carrying
Amount of Amount of
Description Prior Liens Mortgages Mortgages
- ----------- ----------- --------- ---------
<S> <C> <C> <C>
Purchase money first mortgage,
collateralized by a shopping center in
Connellsville, PA
$ 5,420 $ 5,180
Purchase money first mortgage,
collateralized by a shopping center in
Whitesboro, NY
4,610 4,205
Leasehold mortgage, collateralized by a
tenant lease
259 201
Leasehold mortgage, collateralized by a
tenant lease
1,000 851
Purchase money first mortgage,
collateralized by a shopping center in
Harrisonburg, VA 794 149
Purchase money first mortgage,
collateralized by a shopping center in
New Bern, NC
750 750
Purchase money first mortgage
collateralized by shopping center in
Hanover, PA
700 454
Leasehold mortgage collateralized by a
tenant lease
1,642 1,609
------- -------
$15,175 $13,399
======= =======
</TABLE>
Note: Column H is not applicable
F-50
<PAGE> 89
NEW PLAN EXCEL REALTY TRUST AND SUBSIDIARIES
MORTGAGE LOANS ON REAL ESTATE
(Amounts in Thousands)
SCHEDULE IV
(continued)
Year Ended
<TABLE>
<CAPTION>
December 31, 1998 July 31, 1998 July 31, 1997
----------------- ------------- -------------
<S> <C> <C> <C>
Balance, beginning of period $ 13,878 $ 23,107 $ 23,597
Additions during period:
New loans 307 1,322 700
Reductions during period:
Collection of principal (786) (10,551) (1,190)
-------- -------- --------
Balance, end of period $ 13,399 $ 13,878 $ 23,107
======== ======== ========
</TABLE>
F-51
<PAGE> 90
SIGNATURE
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
NEW PLAN EXCEL REALTY TRUST
(Registrant)
By: /s/ ARNOLD LAUBICH
---------------------------------
Arnold Laubich
Chief Executive Officer
Dated: April 6, 1999
<PAGE> 91
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibits
------ -----------------------
<S> <C>
*3.1 Articles of Amendment and Restatement of the Charter of the
Company filed as Exhibit 3.01 to Amendment No. 1 to the
Company's Registration Statement on Form S-3, File No.
33-59195, on May 25, 1995.
*3.2 Articles of Amendment of Articles of Amendment and Restatement
of the Charter of the Company filed as Exhibit 4.4 to the
Company's Registration Statement on Form S-3, File No.
333-65211, on October 1, 1998.
*3.3 Amended and Restated Bylaws of the Company filed as Exhibit
4.6 to the Company's Registration Statement on Form S-3, File
No. 333-65211, on October 1, 1998.
*4.1 Articles Supplementary classifying 4,600,000 shares of
preferred stock as 8 1/2% Series A Cumulative Convertible
Preferred Stock filed as Exhibit 4.01 to the Company's Current
Report on Form 8-K dated February 7, 1997.
*4.2 Articles Supplementary classifying 690,000 shares of preferred
stock as 8 5/8% Series B Cumulative Redeemable Preferred Stock
filed as Exhibit 4.02 to the Company's Current Report on Form
8-K dated January 14, 1998.
4.3 Articles Supplementary relating to the Series C Junior
Participating Preferred Stock of the Company, which may in the
future be issued under the Company's Rights Plan.
*4.4 Articles Supplementary classifying 150,000 shares of preferred
stock as 7.80% Series D Cumulative Voting Step-Up Premium Rate
Preferred Stock filed as Exhibit 4.5 to the Company's
Registration Statement on Form S-3, File No. 333-65211, on
October 1, 1998.
*10.1 Tennessee General Partnership Agreement, dated as of October
13, 1992, between Horne Properties, Inc. and the Company filed
as Exhibit 10.2A to Amendment No. 1 to the Company's
Registration Statement on Form S-11, File No. 33-63160, on
July 12, 1993.
*10.2 Tennessee General Partnership Agreement to create Horne &
Excel Properties (Chapman), dated as of December 30, 1992,
between Horne Properties, Inc. and the Company, filed as
Exhibit 10.2B to Amendment No. 1 to the Company's Registration
Statement on Form S-11, File No. 33-63160, on July 12, 1993.
</TABLE>
<PAGE> 92
<TABLE>
<S> <C>
*10.3 Amended and Restated 1993 Stock Option Plan of the Company
filed as Exhibit 4.1 to the Company's Registration Statement
on Form S-8, File No. 333-65223, on October 1, 1998.
10.4 Amendment to the 1993 Stock Option Plan of the Company
(Amended and Restated May 28, 1998), dated September 28, 1998.
10.5 Amendment to the 1993 Stock Option Plan of the Company
(Amended and Restated May 28, 1998), dated February 8, 1999.
*10.6 Form of Incentive Stock Option Agreement under the Company's
1993 Stock Option Plan filed as Exhibit 10.11 to the Company's
Registration Statement on Form S-11, File No. 33-63160, on May
21, 1993.
*10.7 Form of Non-Qualified Stock Option Agreement under the
Company's 1993 Stock Option Plan filed as Exhibit 10.12 to the
Company's Registration Statement on Form S-11, File No.
33-63160, on May 21, 1993.
10.8 1994 Directors' Stock Option Plan of the Company (Amended and
Restated May 10, 1996).
10.9 Amendment to the 1994 Directors' Stock Option Plan of the
Company (Amended and Restated May 10, 1996), dated September
28, 1998.
*10.10 Form of Stock Option Agreement under the 1994 Directors' Stock
Plan of the Company filed as Exhibit 4.2 to the Company's
Registration Statement on Form S-8, File No. 333-02329 on
April 8, 1996.
*10.11 New Plan Realty Trust 1997 Stock Option Plan filed as Exhibit
4.1 to the Company's Registration Statement on Form S-8, File
No. 333-65221, on October 1, 1998.
*10.12 New Plan Realty Trust 1991 Stock Option Plan, as amended,
filed as Exhibit 4.2 to the Company's Registration Statement
on Form S-8, File No. 333-65221, on October 1, 1998.
*10.13 Amended and Restated New Plan Realty Trust 1985 Incentive
Stock Option Plan filed as Exhibit 4.3 to the Company's
Registration Statement on Form S-8, File No. 333-65221, on
October 1, 1998.
*10.14 New Plan Realty Trust March 1991 Stock Option Plan and
Non-Qualified Stock Option Plan filed as Exhibit 4.4 to the
Company's Registration Statement on Form S-8, File No.
333-65221, on October 1, 1998.
*10.15 Agreement of Limited Partnership of EH Properties, L.P., dated
as of March 25, 1994, by and between the Company and Horne
Properties, Inc., together with any other Persons who become
Partners in the Partnership as provided therein, filed as
Exhibit 10.37 to the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1994.
</TABLE>
<PAGE> 93
<TABLE>
<S> <C>
*10.16 Partnership Contribution Closing Agreement, dated as of March
28, 1994, by and between Horne Properties, Inc., the Company
and EH Properties, L.P. filed as Exhibit 10.38 to the
Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1994.
*10.17 Master Agreement, dated as of January 1, 1995, by and among
the Company and the limited partnerships named therein filed
as Exhibit 10.45 to the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1994.
*10.18 Closing Memorandum, dated as of January 20, 1995, by and among
the Company and the limited partnerships named therein filed
as Exhibit 10.46 to the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1994.
*10.19 Agreement, dated January 20, 1995, by and among the Company
and the limited partnerships named therein filed as Exhibit
10.47 to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1994.
*10.20 Indenture, dated as of May 8, 1995, between the Company and
State Street Bank and Trust Company of California, N.A. (as
successor to the First National Bank of Boston) filed as
Exhibit 4.01 to the Company's Registration Statement on Form
S-3, File No. 33-59195, as amended, on May 9, 1995.
*10.21 First Supplemental Indenture, dated as of April 4, 1997,
between the Company and State Street Bank and Trust Company of
California, N.A. filed as Exhibit 4.02 to the Company's
Registration Statement on Form S-3, File No. 333-24615, as
amended, on April 4, 1997.
*10.22 Second Supplemental Indenture, dated as of July 3, 1997,
between the Company and State Street Bank and Trust Company of
California, N.A. filed as Exhibit 4.01 to the Company's
Current Report on Form 8-K dated July 3, 1997.
*10.23 Amended and Restated Agreement of Limited Partnership of Excel
Realty Partners, L.P., dated as of June 25, 1997, filed as
Exhibit 10.20 to the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1997.
*10.24 Contribution Agreement by and between each of the partnerships
named therein and Excel Realty Partners, L.P. filed as Exhibit
10.33 to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1995.
*10.25 Contribution Agreement, dated as of June 20, 1997, among Excel
Realty Partners, L.P., Briggsmore Plaza Co., G&H Associates,
Montebello Plaza Co. and Paradise Plaza Co. filed as Exhibit
10.01 to the Company's Current Report on Form 8-K dated July
3, 1997.
10.26 Credit Agreement, dated as of November 21, 1997, by and among
New Plan Realty Trust, the Lenders party thereto and The Bank
of New York, as agent.
*10.27 Assignment and Assumption Agreement dated December 1, 1997 by
and among New Plan Realty Trust, Bank Hapoalim B.M. and The
Bank of New York filed as Exhibit 10.2 to the Annual Report on
Form 10-K of New Plan Realty Trust for the fiscal year ended
July 31, 1998.
</TABLE>
<PAGE> 94
<TABLE>
<S> <C>
*10.28 Waiver and Amendment to Credit Agreement, dated as of
September 25, 1998 by and among New Plan Realty Trust, the
Lenders party thereto and The Bank of New York, as agent,
filed as Exhibit 10.3 to the Annual Report on Form 10-K of
New Plan Realty Trust for the fiscal year ended July 31, 1998.
*10.29 Assumption and Substitution Agreement, dated as of September
28, 1998 by and among the Company, New Plan Realty Trust, the
Lenders party thereto and The Bank of New York, as agent,
filed as Exhibit 10.4 to the Annual Report on Form 10-K of
New Plan Realty Trust for the fiscal year ended July 31, 1998.
10.30 First Amended and Restated Revolving Credit Agreement, dated
as of March 31, 1998, among the Company, BankBoston, N.A., the
Other Banks which are or may become parties to the Agreement
and BankBoston, N.A., as agent.
*10.31 Distribution Agreement, dated as of March 31, 1998, by and
among the Company, ERT Development Corporation and Excel
Legacy Corporation filed as Exhibit 2.1 to the Company's
Current Report on Form 8-K dated April 2, 1998.
*10.32 Administrative Services Agreement, dated as of March 31, 1998,
by and between the Company and Excel Legacy Corporation, filed
as Exhibit 10.1 to the Company's Current Report on Form 8-K
dated April 2, 1998.
*10.33 Intercompany Agreement, dated as of March 31, 1998, by and
between the Company and Excel Legacy Corporation, filed as
Exhibit 10.2 to the Company's Current Report on Form 8-K dated
April 2, 1998.
*10.34 Tax Sharing Agreement, dated as of March 31, 1998, by and
between the Company and Excel Legacy Corporation, filed as
Exhibit 10.3 to the Company's Current Report on Form 8-K dated
April 2, 1998.
*10.35 Transitional Services Agreement, dated as of March 31, 1998,
by and between the Company and Excel Legacy Corporation, filed
as Exhibit 10.4 to the Company's Current Report on Form 8-K
dated April 2, 1998.
*10.36 Agreement and Plan of Merger, dated May 14, 1998, as amended
as of August 7, 1998, among the Company, ERT Merger Sub, Inc.
and New Plan Realty Trust, filed as Exhibit 2.1 to the
Company's Registration Statement on Form S-4, File No.
333-61131, dated August 11, 1998.
*10.37 Rights Agreement, dated as of May 15, 1998, between the
Company and BankBoston, N.A., filed as Exhibit 4 to the
Company's Report on Form 8-A dated May 22, 1998.
*10.38 Senior Securities Indenture, dated as of February 3, 1999,
among the Company, New Plan Realty Trust, as guarantor, and
State Street Bank and Trust Company, as Trustee, filed as
Exhibit 4.1 to the Company's Current Report on Form 8-K dated
February 3, 1999.
10.39 Employment Agreement, dated as of September 17, 1998, by and
between the Company and William Newman.
</TABLE>
<PAGE> 95
*10.40 Employment Agreement, dated as of May 14, 1998, by and between
the Company and Arnold Laubich, filed as Exhibit 10.1 to the
Company's Registration Statement on Form S-4, File No.
333-61131, dated August 11, 1998.
*10.41 Employment Agreement, dated as of May 14, 1998, by and between
the Company and Gary B. Sabin, filed as Exhibit 10.2 to the
Company's Registration Statement on Form S-4, File No.
333-61131, dated August 11, 1998.
10.42 First Amendment to Employment Agreement, dated as of September
25, 1998, by and between the Company and Gary B. Sabin.
10.43 Employment Agreement, dated as of September 25, 1998, by and
between the Company and James M. Steuterman.
10.44 Employment Agreement, dated as of September 25, 1998, by and
between the Company and Richard B. Muir.
10.45 Employment Agreement, dated as of September 25, 1998, by and
between the Company and Steven F. Siegel.
*10.46 Support Agreement, dated as of May 14, 1998, by William Newman
to the Company, filed as Exhibit 10.7 to the Company's
Registration Statement on Form S-4, File No. 333-61131, dated
August 11, 1998.
*10.47 Support Agreement, dated as of May 14, 1998, by Arnold Laubich
to the Company, filed as Exhibit 10.5 to the Company's
Registration Statement on Form S-4, File No. 333-61131, dated
August 11, 1998.
*10.48 Support Agreement, dated as of May 14, 1998, by Gary B. Sabin
to the Company, filed as Exhibit 10.6 to the Company's
Registration Statement on Form S-4, File No. 333-61131, dated
August 11, 1998.
10.49 Unconditional Guaranty of Payment and Performance, dated as of
January 13, 1999, by the Company.
12 Ratio of Earnings to Fixed Charges.
21 Subsidiaries of the Registrant.
23 Consent of PricewaterhouseCoopers LLP.
27(1) Financial Data Schedule.
- ----------
*Incorporated herein by reference as above indicated.
(1) Filed as exhibit to electronic filing only.
<PAGE> 1
EXHIBIT 4.3
ARTICLES SUPPLEMENTARY
SERIES C JUNIOR PARTICIPATING PREFERRED STOCK
EXCEL REALTY TRUST, INC.
-----------------------------
Pursuant to Section 2-105 the Maryland General Corporation Law
(the "MGCL"), Excel Realty Trust, Inc., a corporation organized and existing
under the laws of the State of Maryland and having its principal office in the
State of Maryland located at c/o The Prentice Hall Corporation System, Maryland,
11 East Chase Street, Baltimore City, Maryland 21202 (the "Corporation"), hereby
certifies to the State Department of Assessments and Taxation of Maryland that:
FIRST: Pursuant to the authority expressly vested in the Board
of Directors of the Corporation by Article V of the Corporation's Charter
(inclusive of these Articles Supplementary) and Section 2-105 of the MGCL, the
Board of Directors has adopted resolutions classifying and designating a
separate class of authorized but unissued Preferred Stock of the Corporation to
consist of not more than 100,000 shares, setting the preferences, conversion and
other rights, voting powers, restrictions, limitations as to distributions,
qualifications and terms and conditions of redemption of such class of Preferred
Stock and determining the number of shares of such class of Preferred Stock (not
in excess of the aforesaid maximum number) to be issued and the price and other
terms and conditions upon which shares of such class of Preferred Stock are to
be offered, sold and issued, and authorizing the issuance of 100,000 shares of
Series C Junior Participating Preferred Stock.
SECOND: The class of Preferred Stock of the Corporation created
by the resolutions duly adopted by the Board of Directors of the Corporation and
referred to in Article FIRST of these Articles Supplementary shall have the
following designation, number of shares, preferences, conversion and other
rights, voting powers, restrictions and limitations as to distributions,
qualifications, terms and conditions of redemption and other terms and
conditions:
Section 1. Designation and Amount. The shares of such class
shall be designated as "Series C Junior Participating Preferred Stock" (the
"Series C Preferred Stock") and the number of shares constituting the Series C
Preferred Stock shall be one hundred thousand (100,000). Such number of shares
may be increased or decreased by resolution of the Board of Directors; PROVIDED,
that no decrease shall reduce the number of shares of Series C Preferred Stock
to a number less than the number of shares then outstanding plus the number of
shares reserved for issuance upon the exercise of outstanding options, rights or
warrants or upon the conversion of any outstanding securities issued by the
Corporation convertible into Series C Preferred Stock.
<PAGE> 2
Section 2. Dividends and Distributions.
(A) Subject to the prior and superior rights of the holders
of any shares of any class or series of stock of this Corporation
ranking prior and superior to the Series C Preferred Stock with respect
to dividends, the holders of shares of Series C Preferred Stock, in
preference to the holders of Common Stock, par value $.01 per share (the
"Common Stock"), of the Corporation, and of any other stock ranking
junior to the Series C Preferred Stock, shall be entitled to receive,
when, as and if authorized by the Board of Directors out of funds
legally available for the purpose, quarterly dividends payable in cash
on the first day of March, June, September and December in each year
(each such date being referred to herein as a "Quarterly Dividend
Payment Date"), commencing on the first Quarterly Dividend Payment Date
after the first issuance of a share or fraction of a share of Series C
Preferred Stock, in an amount per share (rounded to the nearest cent)
equal to the greater of (a) $1.00 or (b) subject to the provision for
adjustment hereinafter set forth, 1,000 times the aggregate per share
amount of all cash dividends, and 1,000 times the aggregate per share
amount (payable in kind) of all non-cash dividends or other
distributions, other than a dividend payable in shares of Common Stock
or a subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise), declared on the Common Stock since the
immediately preceding Quarterly Dividend Payment Date or, with respect
to the first Quarterly Dividend Payment Date, since the first issuance
of any share or fraction of a share of Series C Preferred Stock. In the
event the Corporation shall at any time declare or pay any dividend on
the Common Stock payable in shares of Common Stock, or effect a
subdivision, combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser number of
shares of Common Stock, then in each such case the amount to which
holders of shares of Series C Preferred Stock were entitled immediately
prior to such event under clause (b) of the preceding sentence shall be
adjusted by multiplying such amount by a fraction, the numerator of
which is the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of shares of
Common Stock that were outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution
on the Series C Preferred Stock as provided in paragraph (A) of this
Section 2 immediately after it declares a dividend or distribution on
the Common Stock (other than a dividend payable in shares of Common
Stock); provided that, in the event no dividend or distribution shall
have been declared on the Common Stock during the period between any
Quarterly Dividend Payment Date and the next subsequent Quarterly
Dividend Payment Date, a dividend of $1.00 per share on the Series C
Preferred Stock shall nevertheless be payable on such subsequent
Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series C Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such shares,
unless the date of issue of such shares is prior to the record date for
the first Quarterly Dividend Payment Date, in which case dividends on
<PAGE> 3
such shares shall begin to accrue from the date of issue of such shares,
or unless the date of issue is a Quarterly Dividend Payment Date or is a
date after the record date for the determination of holders of shares of
Series C Preferred Stock entitled to receive a quarterly dividend and
before such Quarterly Dividend Payment Date, in either of which events
such dividends shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not
bear interest. Dividends paid on the shares of Series C Preferred Stock
in an amount less than the total amount of such dividends at the time
accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The
Board of Directors may fix a record date for the determination of
holders of shares of Series C Preferred Stock entitled to receive
payment of a dividend or distribution declared thereon, which record
date shall be not more than 60 days prior to the date fixed for the
payment thereof.
Section 3. Voting Rights. The holders of shares of Series C
Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set
forth, each share of Series C Preferred Stock shall entitle the holder
thereof to 1,000 votes on all matters submitted to a vote of the
stockholders of the Corporation having general voting rights. In the
event the Corporation shall at any time declare or pay any dividend on
the Common Stock payable in shares of Common Stock, or effect a
subdivision, combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser number of
shares of Common Stock, then in each such case the number of votes per
share to which holders of shares of Series C Preferred Stock were
entitled immediately prior to such event shall be adjusted by
multiplying such number by a fraction, the numerator of which is the
number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
(B) Except as otherwise provided herein, in any other
Articles Supplementary creating a class or series of Preferred Stock or
any similar stock, the holders of shares of Series C Preferred Stock and
the holders of shares of Common Stock and any other shares of stock of
the Corporation having general voting rights shall vote together as one
class on all matters submitted to a vote of stockholders of the
Corporation having general voting rights.
(C) Except as set forth herein, or as otherwise provided by
law, holders of Series C Preferred Stock shall have no special voting
rights and their consent shall not be required (except to the extent
they are entitled to vote with holders of Common Stock as set forth
herein) for taking any corporate action.
<PAGE> 4
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series C Preferred Stock as provided in
Section 2 are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on shares of
Series C Preferred Stock outstanding shall have been paid in full, the
Corporation shall not:
(i) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior (either as
to dividends or upon liquidation, dissolution or winding up) to
the Series C Preferred Stock;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or
winding up) with the Series C Preferred Stock, except dividends
paid ratably on the Series C Preferred Stock and all such parity
stock on which dividends are payable or in arrears in proportion
to the total amounts to which the holders of all such shares are
then entitled;
(iii) except pursuant to the provisions of the Charter
providing for limitations or restrictions on ownership of stock
of the Corporation which are, expressly or by implication, to
protect the status of the Corporation as a Real Estate
Investment Trust under the Internal Revenue Code, redeem or
purchase or otherwise acquire for consideration shares of any
stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series C
Preferred Stock, provided that the Corporation may at any time
redeem, purchase or otherwise acquire shares of any such junior
stock in exchange for shares of any stock of the Corporation
ranking junior (both as to dividends and upon dissolution,
liquidation or winding up) to the Series C Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for
consideration any shares of Series C Preferred Stock, or any
shares of stock ranking on a parity with the Series C Preferred
Stock, except in accordance with a purchase offer made in
writing or by publication (as determined by the Board of
Directors) to all holders of such shares upon such terms as the
Board of Directors, after consideration of the respective annual
dividend rates and other relative rights and preferences of the
respective series and classes, shall determine in good faith
will result in fair and equitable treatment among the respective
series or classes, and except pursuant to the provisions of the
Charter providing for limitations or restrictions on ownership
of stock of the Corporation which are, expressly or by
implication, to protect the status of the Corporation as a Real
Estate Investment Trust under the Internal Revenue Code.
(B) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any
shares of stock of the Corporation
<PAGE> 5
unless the Corporation could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in such
manner.
Section 5. Reacquired Shares. Any shares of Series C Preferred
Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall become authorized but unissued shares of Preferred Stock,
without further designation, and may be reissued as part of a new class or
series of Preferred Stock subject to the conditions and restrictions on issuance
set forth herein, in the Charter, or in any other Articles Supplementary
creating a class or series of Preferred Stock or any similar stock or as
otherwise required by law.
Section 6. Liquidation, Dissolution or Winding Up. (A) Upon any
liquidation, dissolution or winding up of the Corporation, voluntary or
otherwise, no distribution shall be made (1) to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series C Preferred Stock unless, prior thereto, the holders
of shares of Series C Preferred Stock shall have received an amount per share
(the "Series C Liquidation Preference") equal to $1,000 per share, plus an
amount equal to accrued and unpaid dividends and distributions thereon, whether
or not declared, to the date of such payment, provided that the holders of
shares of Series C Preferred Stock shall be entitled to receive an aggregate
amount per share, subject to the provision for adjustment hereinafter set forth,
equal to 1,000 times the aggregate amount to be distributed per share to holders
of shares of Common Stock, or (2) to the holders of shares of stock ranking on a
parity (either as to dividends or upon liquidation, dissolution or winding up)
with the Series C Preferred Stock, except distributions made ratably on the
Series C Preferred Stock and all such parity stock in proportion to the total
amounts to which the holders of all such shares are entitled upon such
liquidation, dissolution or winding up. In the event the Corporation shall at
any time declare or pay any dividend on the Common Stock payable in shares of
Common Stock, or effect a subdivision, combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the aggregate amount to which
holders of shares of Series C Preferred Stock were entitled immediately prior to
such event under the proviso in clause (1) of the preceding sentence shall be
adjusted by multiplying such amount by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that are
outstanding immediately prior to such event.
(B) In the event, however, that there are not sufficient
assets available to permit payment in full of the Series C Liquidation
Preference and the liquidation preferences of all other classes and
series of stock of the Corporation, if any, that rank on a parity with
the Series C Preferred Stock in respect thereof, then the assets
available for such distribution shall be distributed ratably to the
holders of the Series C Preferred Stock and the holders of such parity
shares in proportion to their respective liquidation preferences.
(C) Neither the merger or consolidation of the Corporation
into or with another corporation nor the merger or consolidation of any
other corporation into or with
<PAGE> 6
the Corporation shall be deemed to be a liquidation, dissolution or
winding up of the Corporation within the meaning of this Section 6.
Section 7. Consolidation, Merger, etc. In case the Corporation
shall enter into any consolidation, merger, combination or other transaction in
which the shares of Common Stock are exchanged for or changed into other stock
or securities, cash and/or any other property, then in any such case each share
of Series C Preferred Stock shall at the same time be similarly exchanged or
changed into an amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 1,000 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each share of Common Stock is changed or exchanged.
In the event the Corporation shall at any time declare or pay any dividend on
the Common Stock payable in shares of Common Stock, or effect a subdivision,
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the amount set forth in the preceding sentence with respect to the
exchange or change of shares of Series C Preferred Stock shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 8. No Redemption. Except pursuant to the provisions of
the Charter providing for limitations or restrictions on ownership of stock of
the Corporation which are, expressly or by implication, to protect the status of
the Corporation as a Real Estate Investment Trust under the Internal Revenue
Code, the shares of Series C Preferred Stock shall not be redeemable by the
Corporation.
Section 9. Rank. The Series C Preferred Stock shall rank, with
respect to the payment of dividends and the distribution of assets upon
liquidation, dissolution or winding up, junior to all series or any other class
of the Corporation's Preferred Stock, except to the extent that any such other
series specifically provides that it shall rank on a parity with or junior to
the Series C Preferred Stock.
Section 10. Amendment. At any time any shares of Series C
Preferred Stock are outstanding, the Charter of the Corporation shall not be
amended in any manner which would materially alter or change the powers,
preferences or special rights of the Series C Preferred Stock, as set forth
herein, so as to affect them adversely without the affirmative vote of the
holders of at least two-thirds of the outstanding shares of Series C Preferred
Stock, voting separately as a single class.
<PAGE> 7
Section 11. Fractional Shares. Series C Preferred Stock may be
issued in fractions of a share that shall entitle the holder, in proportion to
such holder's fractional shares, to exercise voting rights, receive dividends,
participate in distributions and to have the benefit of all other rights of
holders of Series C Preferred Stock.
Section 12. Restrictions on Transfer, Acquisition and Redemption
of Shares.
(a) The Series C Preferred Stock constitutes
a class of Preferred Stock of the Corporation, and Preferred Stock constitutes
Equity Stock of the Corporation. Therefore, the Series C Preferred Stock, being
Equity Stock, is governed by and issued subject to all of the limitations, terms
and conditions of the Charter of the Corporation applicable to the Equity Stock
generally, including but not limited to the terms and conditions (including
exceptions and exemptions) of Article VII of the Charter applicable to Equity
Stock; provided, however, that the terms and conditions (including exceptions
and exemptions) of Article VII of the Charter applicable to Equity Stock shall
also be applied to the Series C Preferred Stock separately and without regard to
any other series or class. The foregoing sentence shall not be construed to
limit the applicability to the Series C Preferred Stock of any other term or
provision of the Charter.
[INTENTIONALLY LEFT BLANK]
<PAGE> 8
(b) In addition to the legend contemplated
by Article VII, Section 11 of the Charter, each certificate for Series C
Preferred Stock shall bear substantially the following legend:
"The Corporation will furnish to any
stockholder, on request and without charge, a full statement of the
information required by Section 2-211(b) of the Corporations and
Associations Article of the Annotated Code of Maryland with respect to
the designations and any preferences, conversions and other rights,
voting powers, restrictions, limitations as to distributions,
qualifications and terms and conditions of redemptions of the stock of
each class which the Corporation has authority to issue and, if the
Corporation is authorized to issue any preferred or special class in
series, (i) the differences in the relative rights and preferences
between the shares of each series to the extent set, and (ii) the
authority of the Board of Directors to set such rights and preferences
of subsequent series. The foregoing summary does not purport to be
complete and is subject to and qualified in its entirety by reference to
the charter of the Corporation, a copy of which will be sent without
charge to each stockholder who so requests. Such request must be made to
the Secretary of the Corporation at its principal office."
THIRD: These Articles Supplementary have been approved by the
Board of Directors in the manner and by the vote required by law.
FOURTH: The undersigned President acknowledges these Articles
Supplementary to be the corporate act of the Corporation and, as to all matters
of fact required to be verified under oath, the undersigned President
acknowledges that to the best of his or her knowledge, information and belief,
these matters and facts are true in all material respects and that this
statement is made under the penalties of perjury.
IN WITNESS WHEREOF, the Corporation has caused these Articles
Supplementary to be executed in its name and on its behalf by its President, and
attested to by its Secretary, on this 28th day of May, 1998.
/s/ Gary B. Sabin
-----------------------------------------
Gary B. Sabin
President
Attest:
/s/ Richard B. Muir
- --------------------------------------
Richard B. Muir
Secretary
<PAGE> 1
EXHIBIT 10.4
AMENDMENT TO THE
1993 STOCK OPTION PLAN
OF
EXCEL REALTY TRUST, INC.
(AMENDED AND RESTATED MAY 28, 1998)
WHEREAS, Excel Realty Trust, Inc. ("Company") previously adopted the
1993 Stock Option Plan of Excel Realty Trust, Inc. ("Plan"); and
WHEREAS, pursuant to the Plan, the Stock Option Committee of the Board
of Directors ("Committee") has reserved the right to amend the Plan; and
WHEREAS, the Committee desires to amend the Plan.
NOW, THEREFORE, the Plan is hereby amended effective September 28, 1998
as follows:
1. The Plan shall be known as the "1993 Stock Option Plan of New
Plan Excel Realty Trust, Inc."
2. The first sentence of Section 1.4 - Company is deleted in its
entirety, and the following is substituted therefor:
"'Company' shall mean New Plan Excel Realty Trust, Inc."
3. The words "corporation which is then a" are deleted in their
entirety from Section 1.6 - Employee and Section 3.1 - Eligibility.
4. The text of Section 1.13 - Plan is deleted in its entirety, and
the following is substituted therefor:
"'Plan' shall mean the 1993 Stock Option Plan of New Plan Excel
Realty Trust, Inc. The Plan consists of two plans - one plan providing
for the grant of Incentive Stock Options and the other plan providing
for the grant of Non-Qualified Options."
5. The text of Section 1.17 - Subsidiary is deleted in its
entirety, and the following is substituted therefor:
"'Subsidiary' shall mean any entity affiliated with or related
to the Company, including, without limitation, any corporation in an
unbroken chain of corporations beginning with the Company if each of the
corporations other than the last corporation in
<PAGE> 2
the unbroken chain then owns stock possessing 50% or more of the total
combined voting power of all classes of stock in one of the other
corporations in such chain."
6. The last sentence of Section 2.1 - Shares Subject to Plan is
deleted in its entirety, and the following is substituted therefor:
"In no event, except as subject to adjustment as provided in
Section 2.2 (to the extent permitted by Section 422 of the Code), shall
the aggregate number of shares of Common Stock which cumulatively may be
available for issuance upon exercise of Incentive Stock Options exceed
10,000,000 plus to the extent such addition does not jeopardize the
treatment of Incentive Stock Options as incentive stock options under
Section 422 of the Code, the number of shares of Common Stock relating
to Incentive Stock Options granted under the Plan which have expired or
have been cancelled without having been exercised. The maximum number of
shares of Common Stock which may be subject to Options granted under the
Plan to any individual in any fiscal year shall not exceed 1,000,000."
7. The words "with respect to Options granted to Employees who are
not Officers" are deleted in their entirety from subsection (a) of Section 4.3 -
Commencement of Exercisability.
8. The text of Section 5.4 - Certain Timing Requirements is deleted
in its entirety, and the following is substituted therefor:
"Shares of the Company's Common Stock, whether or not issuable
to the Optionee upon exercise of the Option, may be used to satisfy the
Option price or the tax withholding consequences of such exercise in
accordance with procedures set forth by the Committee."
9. The first sentence of Section 6.1 - Stock Option Committee is
deleted in its entirety, and the following is substituted therefor:
"The Stock Option Committee shall consist of two or more
Directors, appointed by and holding office at the pleasure of the
Board."
10. The text of Section 7.1 - Options Not Transferable is deleted in
its entirety, and the following is substituted therefor:
"No Option or interest or right therein or part thereof shall be
liable for the debts, contracts or engagements of the Optionee or his
successors in interest or shall be subject to disposition by transfer,
alienation, anticipation, pledge, encumbrance, assignment or any other
means whether such disposition be voluntary or involuntary by operation
of law by judgment, levy, attachment, garnishment or any other legal or
equitable proceedings
2
<PAGE> 3
(including bankruptcy), and any attempted disposition thereof shall be
null and void and no effect; provided, however, that nothing in this
Section 7.1 shall prevent transfers by will, by the applicable laws of
descent and distribution, or with respect to Options other than
Incentive Stock Options, if the Committee in its sole discretion permits
the transfer of such Options subject to any conditions or limitations
specified by the Committee."
11. The words "including without limitation Rule 16b-3" are deleted
in their entirety from Section 7.6 - Conformity to Securities Laws.
12. In all other respects the Plan, as amended, shall continue in
full force and effect.
3
<PAGE> 1
EXHIBIT 10.5
AMENDMENT TO THE
1993 STOCK OPTION PLAN
OF
NEW PLAN EXCEL REALTY TRUST, INC.
(AMENDED AND RESTATED MAY 28, 1998)
Dated: February 8, 1999
WHEREAS, New Plan Excel Realty Trust, Inc. ("Company") previously
adopted the 1993 Stock Option Plan of New Plan Excel Realty Trust, Inc.
("Plan"); and
WHEREAS, pursuant to the Plan, the Stock Option Committee of the Board
of Directors of the Company has reserved the right to amend the Plan; and
WHEREAS, the Executive Compensation and Stock Option Committee of the
Board of Directors of the Company serves as the Stock Option Committee for the
Plan ("Committee"); and
WHEREAS, the Committee desires to amend the Plan.
NOW, THEREFORE, the Plan is hereby amended effective September 28, 1998
as follows:
1. The third sentence of Section 2.1 - Shares Subject to Plan is
deleted in its entirety, and the following is substituted therefor:
"For the fiscal year ending December 31, 1998 and through the
termination of the Plan, in no event, except as subject to adjustment as
provided in Section 2.2 (to the extent permitted by Section 422 of the
Code), shall the aggregate number of shares of Common Stock which
cumulatively may be available for issuance upon exercise of Incentive
Stock Options granted during the period January 1, 1998 through the
termination of the Plan exceed 1,700,000 plus, to the extent such
addition does not jeopardize the treatment of Incentive Stock Options as
incentive stock options under Section 422 of the Code, the number of
shares of Common Stock relating to Incentive Stock Options granted under
the Plan which have expired or have been cancelled without having been
exercised."
2. In all other respects the Plan, as amended, shall continue in
full force and effect.
<PAGE> 1
EXHIBIT 10.8
EXCEL REALTY TRUST, INC.
DIRECTORS' 1994 STOCK OPTION PLAN
(AMENDED AND RESTATED MAY 10, 1996)
(SUBMITTED FOR STOCKHOLDER APPROVAL MAY 10, 1996)
1. PURPOSE OF THE PLAN. Under this Amended Directors' 1994 Stock
Option Plan (the "Plan") of EXCEL REALTY TRUST, INC. (the "Company"), options
shall be granted to directors of the Company to purchase shares of the Company's
capital stock. The Plan is designed to enable the Company to attract and retain
directors of the highest caliber and experience.
2. STOCK SUBJECT TO PLAN. The maximum number of shares of stock for
which options granted hereunder may be exercised shall be 240,000 shares of the
Company's Common Stock, par value $.01 per share, subject to the adjustments
provided in Section 7. Shares of stock subject to the unexercised portions of
any options granted under this Plan which expire or terminate or are cancelled
may again be subject to options under the Plan.
3. PARTICIPATING DIRECTORS. The directors of the Company who shall
participate in this Plan are each of the current and future directors who have
been duly elected and qualified.
4. ADMINISTRATION.
(a) The Plan shall be administered by a committee (the
"Committee") which shall consist of two or more directors, appointed by
and holding office at the pleasure of the Board, each of whom is a
"disinterested person" as defined by Rule 16b-3 and an "outside
director" within the meaning of Section 162(m)(4)(C)(ii) of the Internal
Revenue Code of 1986, as amended (the "Code"). Appointment of Committee
members shall be effective upon acceptance of appointment. Committee
members may resign at any time by delivering written notice to the
Board. Vacancies in the Committee shall be filled by the Board.
(b) It shall be the duty of the Committee to conduct the
general administration of the Plan in accordance with its provisions.
The Committee shall have the power to interpret the Plan and the options
and to adopt such rules for the administration, interpretation and
application of the Plan as are consistent therewith and to interpret,
amend or revoke any such rules. The Board shall have no right to
exercise any of the rights or duties of the Committee under the Plan.
(c) The Committee shall act by a majority of its members in
office. The Committee may act either by vote at a meeting or by a
memorandum or other written instrument signed by a majority of the
Committee.
<PAGE> 2
(d) Members of the Committee shall receive such compensation
for their services as members as may be determined by the Board. All
expenses and liabilities incurred by members of the Committee in
connection with the administration of the Plan shall be borne by the
Company. The Committee may employ attorneys, consultants, accountants,
appraisers, brokers or other persons. The Committee, the Company and its
officers and directors shall be entitled to rely upon the advice,
opinions or valuations of any such persons. All actions taken and all
interpretations and determinations made by the Committee in good faith
shall be final and binding upon all option holders, the Company and all
other interested persons. No member of the Committee shall be personally
liable for any action, determination or interpretation made in good
faith with respect to the Plan or the options, and all members of the
Committee shall be fully protected by the Company in respect to any such
action, determination or interpretation.
5. GRANT OF OPTIONS. Each participating director shall be granted
an option for 3,000 shares of stock (subject to the adjustments provided in
Section 7) on the date on which the amended Plan is approved by the stockholders
of the Company. On each anniversary date of such stockholder approval on which
he or she continues to serve as a director of the Company (these annual dates of
grant are collectively referred to herein as the "date of grant") each Director
then in office (which would include current and continuing Directors as well as
any Director who later joins the Board) shall receive an option exercisable for
a number of shares determined pursuant to the following formula:
Number of option shares = 3,000 + (250 multiplied by the number of years
of continuous service beginning in 1997, including any portion of any
fiscal year of service as a full year)
The number of shares subject to options allocated under the revised
formula escalates each year as a result of being based on years of service as a
director. Any additional or replacement Director shall, pursuant to the revised
formula, receive on first occurring anniversary of the stockholder's approval of
this amendment, an option for 3,000 shares, which option shall increase by 250
shares during each year of service thereafter. Notwithstanding any other
provision of this Plan, no option hereunder shall be granted unless 3,000 shares
(subject to said upward adjustments) are then available therefor under Sections
2 and 7. In consideration of the granting of the option, the option holder shall
be deemed to have agreed to remain as a director of the Company for a period of
at least one year after the date of grant. Nothing in this Plan shall, however,
confer upon any option holder any right to continue as a director of the Company
or shall interfere with or restrict in any way the rights of the Company or the
Company's stockholders, which are hereby expressly reserved, to remove any
option holder at any time for any reason whatsoever, with or without cause, to
the extent permitted by the Company's bylaws and applicable law.
6. OPTION PROVISIONS. Each option granted under the Plan shall be
evidenced by an agreement between the Company and the participating director and
shall contain such terms and provisions as the Committee may authorize,
including in any event the following:
(a) The exercise price of each option shall be equal to the
aggregate fair market value of the shares of stock optioned on the date
of grant of such option. For this
2
<PAGE> 3
purpose, the fair market value of a share of the Company's Common Stock
as of a given date shall be (i) the closing price of a share of the
Company's Common Stock on the principal exchange on which shares of the
Company's Common Stock are then trading, if any, on the trading day
previous to such date, or, if shares were not traded on the day previous
to such date, then on the next preceding trading day during which a sale
occurred; or (ii) if such Common Stock is not traded on an exchange but
is quoted on Nasdaq or a successor quotation system, (1) the last sales
price (if the Company's Common Stock is then listed as a National Market
Issue under the NASD National Market System) or (2) the mean between the
closing representative bid and asked prices (in all other cases) for the
Company's Common Stock on the trading day previous to such date as
reported by Nasdaq or such successor quotation system; or (iii) if such
Common Stock is not publicly traded on an exchange and not quoted on
Nasdaq or a successor quotation system, the mean between the closing bid
and asked prices for the Company's Common Stock, on the trading day
previous to such date, as determined in good faith by the Committee; or
(iv) if the Company's Common Stock is not publicly traded, the fair
market value established by the Committee acting in good faith.
(b) Payment for stock purchased upon any exercise of the
option shall be made in full in cash concurrently with such exercise.
However, at the discretion of the Board, the terms of the option may:
(i) subject to the timing requirements of paragraph 6(j), allow payment,
in whole or in part, through the surrender of shares of Common Stock
then issuable upon exercise of the option having a Fair Market Value on
the date of option exercise equal to the aggregate exercise price of the
option or exercised portion thereof; (ii) allow payment, in whole or in
part, through the delivery of a promissory note bearing interest (at no
less than such rate as shall then preclude the imputation of interest
under the Code) and payable upon such terms as may be prescribed by the
Board, or (iii) allow payment through any combination of the
consideration provided in the foregoing subparagraphs (i) and (ii). In
the case of a promissory note, the Board may also prescribe the form of
such note and the security to be given for such note. The Option may not
be exercised, however, by delivery of a promissory note or by a loan
from the Company when or where such loan or other extension of credit is
prohibited by law.
(c) In the case of options which are granted to directors
who are employees of the Company, such directors shall reimburse the
Company in cash for all amounts which the Company is required to
withhold under federal, state or local law in connection with the
exercise of the Option.
(d) The option shall become immediately exercisable.
(e) Any option holder who ceases to be a director, whether
because of death, resignation, removal, expiration of his or her term of
office or any other reason, shall have the right to exercise the option
for thirty (30) days after such event (but not after the expiration date
of the option), at which time the option shall terminate and may no
longer be exercised, except that (i) in the event of the death of an
option holder (x) who is at the time of his or her death a director of
the Company and who has served as a director since
3
<PAGE> 4
the date of grant of the option, the option may be exercised at any time
within one year following the date of death (but not after the
expiration date of the option), by the option holder's estate or by a
person who acquired the right to exercise the option by bequest or
inheritance, or (y) within thirty (30) days after the termination of the
option holder's status as a director of the Company, the option may be
exercised at any time within six (6) months after the date of death (but
in no event after the expiration date of the option) by the option
holder's estate or by a person who acquired the right to exercise the
option by bequest or inheritance, and (ii) upon the option holder's
ceasing to be a director by reason of disability he or she (or his or
her guardian) shall have the right to exercise the option within one
year after the date the option holder ceased to be a director (but not
after the expiration date of the option.
(f) Notwithstanding any other provision herein, such option
may not be exercised prior to approval of this Plan by the Company's
stockholders having a majority of the voting power of the outstanding
stock; nor prior to the admission of the shares of stock issuable on
exercise of the option to listing on notice of issuance on any stock
exchange on which shares of the same class are then listed; nor unless
and until such securities may be issued and delivered without causing
the Company to be in violation of or incur any liability under any
federal, state or other securities law, any requirement of any
securities exchange listing agreement to which the Company may be a
party, or any other requirement of law or of any regulatory body having
jurisdiction over the Company.
(g) The option shall not be transferable by the option
holder other than by will or the laws of descent and distribution, may
not be pledged or hypothecated, and shall be exercisable during the
option holder's lifetime only by the option holder or by his or her
guardian or legal representative.
(h) The term of each option shall be ten (10) years from the
date of grant thereof or such shorter term as may be provided by the
Committee.
(i) Options granted under the Plan are not intended to
qualify, and shall not be designated, as "incentive stock options" under
Section 422 of the Code.
(j) At the discretion of the Board, shares of Common Stock
issuable to the optionee upon exercise of the option may be used to
satisfy the option exercise price or the tax withholding consequences of
such exercise, in the case of persons subject to Section 16 of the
Exchange Act, only (i) during the period beginning on the third business
day following the date of release of the quarterly or annual summary
statement of sales and earnings of the Company and ending on the twelfth
business day following such date or (ii) pursuant to an irrevocable
written election by the optionee to use shares of Common Stock issuable
to the optionee upon exercise of the option to pay all or part of the
option price or the withholding taxes made at least six months prior to
the payment of such option price or withholding taxes.
7. ADJUSTMENTS. Subject to any required action by the stockholders
of the Company, the number of shares of
4
<PAGE> 5
Common Stock covered by each outstanding option, and the number of shares of
Common Stock which have been authorized for issuance under the Plan but as to
which no options have yet been granted or which have been returned to the Plan
upon cancellation or expiration of an option, as well as the price per share of
Common Stock covered by each such outstanding option, shall be proportionately
adjusted for any increase or decrease in the number of issued shares of Common
Stock resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the Common Stock, or any other increase or
decrease in the number of issued shares of Common Stock effected without receipt
of consideration by the Company; provided, however, that conversion of any
convertible securities of the Company shall not be deemed to have been "effected
without receipt of consideration." Such adjustment shall be made by the
Committee, whose determination in that respect shall be final, binding and
conclusive. Except as expressly provided herein, no issuance by the Company of
shares of stock of any class, or securities convertible into shares of stock of
any class, shall affect, and no adjustment by reason thereof shall be made with
respect to, the number or price of shares of Common Stock subject to an option.
8. CORPORATE REORGANIZATIONS. In the event of the proposed
dissolution or liquidation of the Company, the option will terminate immediately
prior to the consummation of such proposed action, unless otherwise provided by
the Committee. The Committee may, in the exercise of its sole discretion in such
instances, declare that any option shall terminate as of a date fixed by the
Committee. In the event of a proposed sale of all or substantially all of the
assets of the Company, or the merger of the Company with or into another
corporation, the option shall be assumed or an equivalent option shall be
substituted by such successor corporation or a parent or subsidiary of such
successor corporation, unless the Committee determines, in the exercise of its
sole discretion and in lieu of such assumption or substitution, that the option
holder shall have the right to exercise the option as to all of the optioned
shares, including shares as to which the option would not otherwise be
exercisable. If the Committee makes an option fully exercisable in lieu of
assumption or substitution in the event of a merger or sale of assets, the
Committee shall notify the option holder that the option shall be fully
exercisable for a period of fifteen (15) days from the date of such notice, and
the option will terminate upon the expiration of such period.
9. DURATION, TERMINATION AND AMENDMENT OF PLAN. This Plan shall
become effective upon its approval by the stockholders of the Company and shall
expire on May 15, 2004, so that no option may be granted hereunder after that
date although any option outstanding on that date may thereafter be exercised in
accordance with its terms. The Board of Directors may alter, amend, suspend or
terminate this Plan, provided that no such action shall deprive an option
holder, without his or her consent, of any option previously granted pursuant to
this Plan or of any of the option holder's rights under such option. Except as
herein provided, no such action of the Board of Directors, unless taken with the
approval of the stockholders of the Company, may make any amendment to the Plan
as to which approval by stockholders is necessary for continued applicability of
Rule 16b-3 of the Securities and Exchange Commission. Notwithstanding anything
to the contrary contained herein, the Board of Directors with respect to the
Plan or any option shall not amend or modify any provision concerning the
amount, price or timing of any option (including, without limitation the
provisions of Sections 2, 5 and 6(a) of the Plan) more than once every six
months other than to comply with changes in the Internal Revenue Code of 1986,
as amended, the Employee Retirement Income Security Act of 1974, as amended, or
the respective rules and regulations thereunder.
5
<PAGE> 1
EXHIBIT 10.9
AMENDMENT TO THE
EXCEL REALTY TRUST, INC.
DIRECTORS' 1994 STOCK OPTION PLAN
(AMENDED AND RESTATED MAY 10, 1996)
WHEREAS, Excel Realty Trust, Inc. ("Company") previously adopted the
Excel Realty Trust, Inc. Directors' 1994 Stock Option Plan ("Plan"); and
WHEREAS, pursuant to the Plan, the Board of Directors has reserved the
right to amend the Plan; and
WHEREAS, the Company desires to amend the Plan.
NOW, THEREFORE, the Plan is hereby amended effective September 28, 1998
as follows:
1. The Plan shall be known as the "New Plan Excel Realty Trust,
Inc. Directors' 1994 Stock Option Plan."
2. Section 1. PURPOSE OF THE PLAN. is amended by deleting the words
"EXCEL REALTY TRUST, INC." appearing in the first sentence thereof, and
substituting the words "NEW PLAN EXCEL REALTY TRUST, INC." therefor.
3. The text of Section 2. STOCK SUBJECT TO PLAN. is deleted in its
entirety, and the following is substituted therefor:
"The maximum number of shares of stock for which options granted
hereunder may be exercised shall be 288,000 shares of the Company's
Common Stock, par value $.01 per share, subject to the adjustments
provided in Section 7 for events after September 28, 1998. Shares of
stock subject to the unexercised portions of any options granted under
this Plan which expire or terminate or are cancelled may again be
subject to options under the Plan."
4. The first sentence of subsection (a) of Section 4.
ADMINISTRATION. is deleted in its entirety, and the following is substituted
therefor:
"The Plan shall be administered by a committee (the "Committee")
which shall consist of two or more directors, appointed by and holding
office at the pleasure of the Board of Directors."
5. The text of Section 5. GRANT OF OPTIONS. is deleted in its
entirety, and the following is substituted therefor:
<PAGE> 2
"On May 25th of each year or the first business day thereafter
(these annual dates of grant are collectively referred to herein as the
"date of grant"), each director then in office (which would include
current and continuing directors as well as any director who later joins
the Board) shall receive an option exercisable for a number of shares
determined pursuant to the following formula:
Number of option shares = 3,000 + (250 multiplied by the number
of years of continuous service beginning in 1997, including any
years of continuous service as a trustee of New Plan Realty
Trust beginning in 1997 and any portion of any fiscal year of
service as a full year).
The number of shares subject to options allocated under the
revised formula escalates each year as a result of being based on years
of service as a director. Notwithstanding any other provision of this
Plan, no option hereunder shall be granted unless shares with respect to
such option are then available therefor under Sections 2 and 7. In
consideration of the granting of the option, the option holder shall be
deemed to have agreed to remain as a director of the Company for a
period of at least one year after the date of grant. Nothing in this
Plan shall, however, confer upon any option holder any right to continue
as a director of the Company or shall interfere with or restrict in any
way the rights of the Company or the Company's stockholders, which are
hereby expressly reserved, to remove any option holder at any time for
any reason whatsoever, with or without cause, to the extent permitted by
the Company's bylaws and applicable law."
6. The text of subsection (b) of Section 6. OPTION PROVISIONS. is
deleted in its entirety, and the following is substituted therefor:
"Payment for stock purchased upon any exercise of the option
shall be made in full in cash concurrently with such exercise. However,
at the discretion of the Board, the terms of the option may: (i) allow
payment, in whole or in part, through the surrender of shares of Common
Stock then issuable upon exercise of the option having a Fair Market
Value on the date of option exercise equal to the aggregate exercise
price of the option or exercised portion thereof; (ii) allow payment, in
whole or in part, through the delivery of a promissory note bearing
interest (at no less than such rate as shall then preclude the
imputation of interest under the Internal Revenue Code of 1986, as
amended (the "Code") and payable upon such terms as may be prescribed by
the Board, or (iii) allow payment through any combination of the
consideration provided in the foregoing subparagraphs (i) and (ii). In
the case of a promissory note, the Board may also prescribe the form of
such note and the security to be given for such note. The option may not
be exercised, however, by delivery of a promissory note or by a loan
from the Company when or where such loan or other extension of credit is
prohibited by law."
2
<PAGE> 3
7. The text of Subsection (g) of Section 6 OPTION PROVISIONS. is
deleted in its entirety, and the following is substituted therefor:
"Except as set forth hereinbelow, the option shall not be
transferable by the option holder other than by will or the laws of
descent and distribution, may not be pledged or hypothecated, and shall
be exercisable during the option holder's lifetime only by the option
holder or by his or her guardian or legal representative. The Committee
in its sole discretion may permit an option holder to transfer options
subject to any conditions or limitations specified by the Committee."
8. The text of subsection (j) of Section 6 OPTION PROVISIONS. is
deleted in its entirety, and the following is substituted therefor:
"At the discretion of the Board, shares of Common Stock issuable
to the optionee upon exercise of the option may be used to satisfy the
option exercise price or the tax withholding consequences of such
exercise."
9. The text of Section 8. CORPORATE REORGANIZATIONS. is deleted in
its entirety, and the following is substituted therefor:
"In the event of the proposed dissolution or liquidation of the
Company, the option will terminate immediately prior to the consummation
of such proposed action, unless otherwise provided by the Committee. The
Committee may, in the exercise of its sole discretion in such instances,
declare that any option shall terminate as of a date fixed by the
Committee.
In the event the Company is merged or consolidated with another
corporation or another entity, or in the event the property or stock of
the Company is acquired by another corporation or another entity, or in
the event of a reorganization of the Company, or in the event of any
extraordinary transaction, the board of directors or trustees of any
corporation or trust, respectively, assuming the obligations of the
Company hereunder or the Committee, as applicable, shall have the right
to provide for the continuation of options granted under the Plan or for
other equitable adjustments as determined by the board of directors or
trustees of such corporation, or trust respectively, assuming the
obligations of the Company hereunder or the Committee, as applicable (by
means, such as, for example, cash payment in an amount equal to the
difference between the share price and the option price, conversion into
other property or securities, or giving written notice to option holders
that their options will become immediately exercisable, notwithstanding
any waiting period otherwise prescribed by the Committee, as applicable,
and that such options must be exercised within a specified period of
days of such notice or they will be terminated)."
3
<PAGE> 4
10. Section 9. DURATION, TERMINATION AND AMENDMENT OF PLAN. is
amended by deleting the last two sentences thereof in their entirety.
11. In all other respects, the Plan, as amended, shall continue in
full force and effect.
4
<PAGE> 1
EXHIBIT 10.26
================================================================================
CREDIT AGREEMENT
by and among
NEW PLAN REALTY TRUST
THE LENDERS PARTY HERETO,
AND
THE BANK OF NEW YORK, AS AGENT
----------------
$50,000,000
----------------
Dated as of November 21, 1997
================================================================================
<PAGE> 2
CREDIT AGREEMENT, dated as of November 21, 1997, by and among NEW PLAN
REALTY TRUST a Massachusetts business trust (the "Borrower"), each lender party
hereto or which becomes a "Lender" pursuant to the provisions of Sections 2.20
or 11.7 (each a "Lender" and, collectively, the "Lenders"), and THE BANK OF NEW
YORK, as agent (in such capacity, the "Agent").
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 2.10.
"Affected Principal Amount": in the event that (i) the Borrower
shall fail for any reason to borrow or convert after it shall have notified the
Agent of its intent to do so in any instance in which it shall have requested a
Eurodollar Advance pursuant to Section 2.4 or 2.8, or shall have accepted one or
more offers of Competitive Bid Advances under Section 2.5, an amount equal to
the principal amount of such Eurodollar Advance or Competitive Bid Advance; (ii)
a Eurodollar Advance or Competitive Bid Advance shall terminate for any reason
prior to the last day of the Interest Period applicable thereto, an amount equal
to the principal amount of such 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
<PAGE> 3
election of directors of such Person or (ii) to direct or cause the direction of
the management and policies of such Person, whether by contract or otherwise.
"Aggregate Commitments": on any date, the sum of the Commitments
of all Lenders on such date.
"Agreement": this Credit Agreement, as the same may be amended,
supplemented or otherwise modified from time to time.
"Alternate Base Rate": on any date, a rate of interest per annum
equal to the higher of (i) the Federal Funds Rate in effect on such date plus
1/2 of 1% or (ii) the BNY Rate in effect on such date.
"Applicable Facility Fee Percentage": with respect to the
Facility Fee, at all times during which the applicable Pricing Level set forth
below is in effect, the applicable commitment fee percentage set forth below
next to such Pricing Level:
<TABLE>
<CAPTION>
Applicable
Pricing Level Facility Fee Percentage
------------- -----------------------
<S> <C>
Pricing Level I 0.100%
Pricing Level I 0.125%
Pricing Level III 0.150%
Pricing Level IV 0.200%
Pricing Level V 0.250%
Pricing Level V 0.300%.
</TABLE>
Changes in the Applicable Facility Fee Percentage resulting from
a change in a Pricing Level shall become effective as of the opening of business
upon the date of any change in the Borrower's Senior Debt Rating, as determined
by S&P or Moody's, as the case may, which would affect the applicable Pricing
Level.
"Applicable Lending Office": in respect of any Lender, (i) in
the case of such Lender's ABR Advances and Competitive Bid Advances, its
Domestic Lending Office and (ii) in the case of such Lender's Eurodollar
Advances, its Eurodollar Lending Office.
"Applicable Margin": with respect to the unpaid principal
balance of Eurodollar Advances, at all times during which the applicable Pricing
Level set forth below is in effect, the percentage set forth below next to such
Pricing Level:
-2-
<PAGE> 4
<TABLE>
<CAPTION>
Pricing Level Applicable Margin
------------- -----------------
<S> <C>
Pricing Level I 0.200%
Pricing Level II 0.250%
Pricing Level III 0.300%
Pricing Level IV 0.400%
Pricing Level V 0.500%
Pricing Level VI 0.700%
</TABLE>
Changes in the Applicable Margin resulting from a change in a
Pricing Level shall become effective as of the opening of business upon the date
of any change in the Senior Debt Rating of the Borrower, as determined by S&P or
Moody's, as the case may, which would affect the applicable Pricing Level.
"Assignment and Acceptance Agreement": an assignment and
acceptance agreement executed by an assignor and an assignee pursuant to which
such assignor assigns to such assignee all or any portion of such assignor's
Note and Commitment, substantially in the form of Exhibit A.
"Assignment Fee": as defined in Section 11.7(b).
"Authorized Signatory": the chairman of the board, the
president, any vice president, the chief financial officer or any other duly
authorized officer (acceptable to the Agent) of the Borrower.
"Available Commitment Amount": on any day during the Revolving
Credit Period, an amount equal to the Total Commitment Amount at such time minus
the total of all Competitive Bid Borrowings outstanding on such date.
"Benefited Lender": as defined in Section 11.9.
"BNY": The Bank of New York.
"BNY Rate": a rate of interest per annum equal to the rate of
interest publicly announced in New York City by BNY from time to time as its
prime commercial lending rate, such rate to be adjusted automatically (without
notice) on the effective date of any change in such publicly announced rate.
"Borrowing Date": any Business Day specified in a Borrowing
Request delivered pursuant to Section 2.4 or 2.5, as the case may be, as a date
on which the Borrower requests the Lenders to make Loans.
"Borrowing Request": a Conventional Borrowing Request or a
Competitive Bid Borrowing Request, as the case may be.
-3-
<PAGE> 5
"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 Revolving Credit Period to make Revolving Credit Loans to
the Borrower, and as of the end of the Revolving Credit Period, such Lender's
undertaking to convert the
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<PAGE> 6
outstanding principal amount of such Lender's Revolving Credit Loans on such
date to a Term Loan of such Lender, in each case subject to the terms and
conditions hereof, in an aggregate outstanding principal amount not exceeding
such Lender's Commitment Amount.
"Commitment Amount": the amount set forth next to the name of
such Lender in Exhibit B under the heading "Commitments", as the same may be
reduced pursuant to Section 2.6 or increased pursuant to Section 2.20.
"Commitment Percentage": on any day, and as to any Lender, (i)
prior to the conversion of the Revolving Credit Loans to Term Loans, the
percentage determined on such day equal to such Lender's Commitment Amount
divided by the Total Commitment Amount, and (ii) after the conversion of the
Revolving Credit Loans to Term Loans, the percentage determined on such day
equal to the outstanding principal balance of such Lender's Term Loan on such
day divided by the aggregate outstanding principal balance of the Term Loans of
all Lenders on such day.
"Competitive Bid Advance": the Revolving Credit Loans (or any
portions thereof) at such time as they (or such portions) consist of Competitive
Bid Borrowings as provided for in Section 2.5.
"Competitive Bid Borrowing": a borrowing pursuant to section 2.5
consisting of simultaneous Competitive Bid Advances from each Lender whose offer
to make a Competitive Bid Advance as part of such borrowing has been accepted by
the Borrower under the auction bidding procedure set forth in section 2.5
"Competitive Bid Borrowing Request": a borrowing request in the
form of Exhibit C.
"Competitive Bid Ceiling": $25,000,000.
"Compliance Certificate": a certificate substantially in the
form of Exhibit D.
"Consenting Lender": defined in Section 2.19.
"Consolidated": the Borrower and its Subsidiaries which are
consolidated for financial reporting purposes.
"Consolidated EBIT": at any time of determination, the EBIT of
the Borrower and its Subsidiaries on a Consolidated basis, determined in
accordance with GAAP, for the immediately preceding four fiscal quarters of the
Borrower, or, in the event that the date of determination is a fiscal quarter
ending date, the fiscal quarter then ended and the immediately preceding three
fiscal quarters.
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<PAGE> 7
"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.
"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 endorsement of instruments for deposit or
collection in the ordinary course of business. The term Contingent Obligation
shall also include the liability of a general partner in respect of the
liabilities of the partnership in which it is a general partner. The amount of
any Contingent Obligation of a Person shall be deemed to be an amount equal to
the stated or determinable amount of the primary obligation in respect of which
such Contingent Obligation is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof as determined by
such Person in good faith.
"Conventional Advance": an ABR Advance and/or a Eurodollar
Advance.
"Conventional Borrowing Request": a borrowing request in the
form of Exhibit E.
"Conversion Date": the date on which a Eurodollar Advance is
converted to an ABR Advance, or the date on which an ABR Advance is converted to
a Eurodollar Advance, or the date on which a Eurodollar Advance is converted to
a new Eurodollar Advance, all in accordance with Section 2.8
"Declaration of Trust": the Amended and Restated Declaration of
Trust of New Plan Realty Trust, dated as of January 15, 1996, by William Newman,
Arnold Laubich, Norman Gold, Melvin Newman, James Steuterman, Raymond Bottorf,
Dean Bernstein, John Wetzler and Gregory White, not personally, but solely as
Trustees of New Plan Realty Trust, as the same may be amended from time to time.
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<PAGE> 8
"Default": any event or condition which constitutes an Event of
Default or which, with the giving of notice, the lapse of time, or any other
condition, would, unless cured or waived, become an Event of Default.
"Defaulted Portion": defined in Section 2.21.
"Dollars" and "$": lawful currency of the United States of
America.
"Domestic Lending Office": in respect of any Lender, initially,
the office or offices of such Lender designated as such on Schedule I;
thereafter, such other office of such Lender, through which it shall be making
or maintaining ABR Advances or Competitive Bid Advances, as reported by such
Lender to the Agent and the Borrower.
"EBIT": at any time of determination, in respect of any Person,
for any period, net income (or loss), calculated after deduction for income
taxes, determined in accordance with GAAP; plus the sum of, without duplication:
(i) interest expense (as determined in accordance with GAAP), and (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": November 21, 1997.
"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
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<PAGE> 9
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 each Eurodollar Advance and
as determined by the Agent, the rate of interest per annum (rounded, if
necessary, to the nearest 1/100 of 1% or, if there is no nearest 1/100 of 1%,
then to the next higher 1/100 of 1%) equal to a fraction, the numerator of which
is the rate per annum quoted by BNY at approximately 11:00 A.M. (or as soon
thereafter as practicable) two Eurodollar Business Days prior to the first day
of such Interest Period to leading banks in the interbank eurodollar market as
the rate at which BNY is offering Dollar deposits in an amount approximately
equal to its Commitment Percentage of such Eurodollar Advance and having a
period to maturity approximately equal to the Interest Period applicable to such
Eurodollar Advance, and the denominator of which is an amount equal to 1.00
minus the aggregate of the then stated maximum rates during such Interest Period
of all reserve requirements (including 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 liabilities.
"Event of Default": any of the events specified in Section 9,
provided that any requirement for the giving of notice, the lapse of time or any
other condition has been satisfied.
"Exclusions": shall mean in the case of any sale or other
disposition of any Property of the Borrower, all sales and other commissions and
reasonable fees and expenses of professionals incurred by the Borrower in
connection with such sale or disposition, costs of title searches, recording
charges, title insurance premiums and transfer taxes.
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<PAGE> 10
"Existing Credit Agreement" shall mean that certain Revolving
Credit Agreement dated as of October 29, 1996 among the Borrower, The Bank of
New York, as Agent, and the other Lenders signatory thereto, as the same has
been amended.
"Extension Consideration Period": defined in Section 2.19.
"Extension Request": defined in Section 2.19.
"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,
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<PAGE> 11
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.
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<PAGE> 12
"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,
(iv) as to any Competitive Bid Advance in respect of which the Borrower has
selected an Interest Period of 90 days or less, the last day of the Interest
Period applicable thereto, and (v) as to any Competitive Bid Advance in respect
of which the Borrower has selected an Interest Period of more than 90 days, the
day which is 90 days after the first day of such Interest Period and the last
day of such Interest Period.
"Interest Period": (i) with respect to any Eurodollar Advance
requested by the Borrower, the period commencing on, as the case may be, the
Borrowing Date or Conversion Date with respect to such Eurodollar Advance and
ending one, two, three or six months thereafter, as selected by the Borrower in
its irrevocable Borrowing Request as provided in Section 2.4 or its irrevocable
notice of conversion as provided in Section 2.8, and (ii) with respect to any
Competitive Bid Advance, the period commencing on the Borrowing Date with
respect to such Competitive Bid Advance and ending on the maturity date thereof
specified in the Competitive Bid Borrowing Request with respect thereto given
pursuant to Section 2.5; provided, however, that all of the foregoing provisions
relating to Interest Periods are subject to the following:
(i) if any Interest Period pertaining to a
Eurodollar Advance would otherwise end on a day which is not a Business
Day, such Interest Period shall be extended to the next succeeding
Business Day unless the result of such extension would be to carry such
Interest Period into another calendar month, in which event such
Interest Period shall end on the immediately preceding Business Day;
(ii) if, with respect to the borrowing of any Loan or
the conversion of one Advance to another, the Borrower shall fail to
give due notice as provided in Section 2.4, 2.5 or 2.8, as the case may
be, the Borrower shall be deemed to have elected that such Loan or
Advance shall be made as an ABR Advance;
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<PAGE> 13
(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) with respect to any Interest Period applicable
to a Eurodollar Advance (i) selected during the Revolving Credit Period,
no such Interest Period shall end after the Revolving Credit Termination
Date, and (ii) selected after any such election of the Term Loan, no
such Interest Period shall end after the Maturity Date;
(v) with respect to any Interest Period applicable
to a Competitive Bid Advance no such Interest Period shall end after the
Revolving Credit Termination Date.
(vi) the Borrower shall select Interest Periods so as
not to have more than seven different Interest Periods outstanding at
any one time with respect to Eurodollar Advances and three different
Interest Periods outstanding at any one time with respect to Competitive
Bid Advances; and
(vii) no Interest Period pertaining to a Competitive
Bid Advance shall be shorter than 7 days or longer than 180 days.
"Investments": as defined in Section 8.5.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
or preferential arrangement, encumbrance, lien (statutory or other), or other
security agreement or security interest of any kind or nature whatsoever,
including, without limitation, any conditional sale or other title retention
agreement and any capital or financing lease having substantially the same
economic effect as any of the foregoing.
"Loan" and "Loans": Revolving Credit Loan (or Loans) or Term
Loan (or Loans), as the case may be.
"Loan Documents": collectively, this Agreement and the Notes.
"Margin Stock": any "margin stock", as said term is defined in
Regulation U of the Board of Governors of the Federal Reserve System, as the
same may be amended or supplemented from time to time.
"Material Adverse Change": a material adverse change in (i) the
financial condition, operations or business, prospects or Property of (A) the
Borrower or (B) the Borrower and its Subsidiaries taken as a whole, (ii) the
ability of the Borrower to perform
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<PAGE> 14
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": (i) if the Term Loan is not elected pursuant to
Section 2.2, the earlier of the Revolving Credit Termination Date or the date on
which the Notes shall become due and payable, whether by acceleration or
otherwise, and (ii) if the Term Loan is so elected, the earlier of the date that
is 364 days after the Revolving Credit Termination Date or the date on which the
Notes shall become due and payable, whether by acceleration or otherwise.
"Moody's": Moody's Investors Services, Inc.
"Multiemployer Plan": a plan defined as such Section 3(37) of
ERISA to which contributions have been made by the Borrower or any ERISA
Affiliate and which is covered by Title IV of ERISA.
"Net Proceeds": shall mean in the case of any sale or other
disposition of any Property of the Borrower after a Threshold Event, the excess
of:
(x) the sum of all gross cash proceeds from such sale or
disposition and all sales or dispositions of the Borrower's
Property giving rise to such Threshold Event, whether paid
directly or indirectly, less the applicable Exclusions in
connection therewith, over
(y) the Threshold Amount.
"Net Proceeds Event": any sale or other disposition of any
Property of the Borrower, which, in any case, results in Net Proceeds, provided
that "Net Proceeds Event" shall not include the issuance of Stock or debt or the
sale of Stock or instruments convertible into Stock.
"Net Worth": as of any date of determination thereof, the Net
Worth of the Borrower and its Subsidiaries on a Consolidated basis, as
determined in accordance with GAAP.
"Nonconsenting Lender": defined in Section 2.19.
"Nonconsenting Lender Termination Date": defined in Section
2.19(c).
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<PAGE> 15
"Note" and "Notes": defined in Section 2.3.
"Participating Lender": defined in Section 2.5.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA, or any Governmental Authority
succeeding to the functions thereof.
"Permitted Liens": Liens permitted to exist under Section 8.1.
"Person": an individual, a partnership, a corporation, a
business trust, a joint stock company, a trust, an unincorporated association, a
joint venture, a Governmental Authority or any other entity of whatever nature.
"Plan": any employee benefit or other plan established or
maintained by the Borrower or any ERISA Affiliate and which is covered by or
subject to the minimum funding standards of Title IV of ERISA, other than a
Multiemployer Plan.
"Pricing Level": Pricing Level I, Pricing Level II, Pricing
Level III, Pricing Level IV, Pricing Level V or Pricing Level VI, as applicable.
"Pricing Level I": the Pricing Level which would be applicable
for so long as the Senior Debt Rating is greater than or equal to AA- by S&P or
Aa3 by Moody's;
"Pricing Level II": the Pricing Level which would be applicable
for so long as the Senior Debt Rating is greater than or equal to A by S&P or A2
by Moody's and Pricing Level I is not applicable;
"Pricing Level III": the Pricing Level which would be applicable
for so long as the Senior Debt Rating is greater than or equal to A- by S&P or
A3 by Moody's and Pricing Levels I and II are not applicable;
"Pricing Level IV": the Pricing Level which would be applicable
for so long as the Senior Debt Rating is greater than or equal to BBB by S&P or
Baa2 by Moody's and Pricing Levels I, II and III are not applicable;
"Pricing Level V": the Pricing Level which would be applicable
for so long as the Senior Debt Rating is equal to BBB- by S&P and Baa3 by
Moody's and Pricing Levels I, II, III and IV are not applicable; and
"Pricing Level VI": the Pricing Level which would be applicable
for so long as the Senior Debt Rating is less than or equal to BB+ by S&P or Ba1
by Moody's and Pricing Levels I, II, III, IV and V are not applicable;
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<PAGE> 16
provided that during any period that the Borrower has no Senior Debt Rating,
Pricing Level VI would be the applicable Pricing Level.
"Property": all types of real, personal, tangible, intangible or
mixed Property.
"Proposed Bid Rate": as applied to any Remaining Interest Period
with respect to a Lender's Competitive Bid Advance, the rate per annum that such
Lender in good faith would have quoted to the Borrower had the Borrower
requested that such Lender offer to make a Competitive Bid Advance on the first
day of such Remaining Interest Period, assuming no Default or Event of Default
existed on such day and that the Borrower had the right to borrow hereunder on
such day; such rate to be determined by such Lender in good faith in its sole
discretion.
"Real Property": all real Property, and all interests in real
Property, owned, leased or held by the Borrower or any Subsidiary.
"Reallocated Commitment Percentage": defined in Section 2.19.
"REIT": a Person qualifying as a Real Estate Investment Trust
under sections 856-859 of the Code and the regulations and rulings of the
Internal Revenue Service issued thereunder.
"REIT Guidelines": collectively, the NASAA Statement of Policy
Regarding Real Estate Investment Trusts, as adopted by the North American
Securities Administrators Association, Inc., and all amendments thereto, and all
Federal and state laws and guidelines, including without, limitation all "blue
sky" laws, which regulate the business, operation and reporting requirements of
REITs generally and which are applicable to the Borrower.
"Remaining Interest Period": (i) in the event that the Borrower
shall fail for any reason to borrow a Loan in respect of which it shall have
requested a Eurodollar Advance or convert an Advance to a Eurodollar Advance
after it shall have notified the Agent of its intent to do so pursuant to
Section 2.4 or 2.8 or accepted one or more offers of Competitive Bid Advances
under Section 2.5, a period equal to the Interest Period that the Borrower
elected in respect of such Eurodollar Advance or Competitive Bid Advance; or
(ii) in the event that a Eurodollar Advance or Competitive Bid Advance shall
terminate for any reason prior to the last day of the Interest Period applicable
thereto, a period equal to the remaining portion of such Interest Period if such
Interest Period had not been so terminated; or (iii) in the event that the
Borrower shall prepay or repay all or any part of the principal amount of a
Eurodollar Advance or Competitive Bid Advance (including any mandatory
prepayment thereof) prior to the last day of the Interest Period applicable
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<PAGE> 17
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 that there is more than one
Lender (i) if no Loans are outstanding at such time or there are Loans comprised
of both Conventional Advances and Competitive Bid Advances, Lenders having
Commitments equal to at least 51% of the Aggregate Commitments; (ii) if Loans at
such time are comprised of Conventional Advances only, Lenders holding Notes
having an unpaid principal balance equal to at least 51% of the aggregate Loans
then outstanding; and (iii) if at such time Loans are comprised of Competitive
Bid Advances only, Lenders having Commitments equal to at least 51% of the
Aggregate Commitments (whether used or unused); provided that in addition to the
requirements in (i), (ii) or (iii), "Required Lenders" shall not be less than
two Lenders. If at any time there is only one Lender under this Agreement,
"Required Lenders" shall mean such Lender.
"Revolving Credit Period": the period from the Effective Date
through the day preceding the Revolving Credit Expiration Date.
"Revolving Credit Expiration Date": the earlier of the Maturity
Date or the Revolving Credit Termination Date.
"Revolving Credit Loan" and "Revolving Credit Loans": as defined
in Section 2.1.
"Revolving Credit Termination Date": the date that is 364 days
from the Effective Date, subject to extensions in accordance with Section 2.19.
"Senior Debt Rating": the senior unsecured non-credit-enhanced
debt rating of the Borrower as determined by S&P and/or Moody's from time to
time.
"Shareholder": as defined in the Declaration of Trust.
"Special Counsel": Emmet, Marvin & Martin, LLP, special counsel
to BNY.
"S&P": Standard & Poor's Ratings Group.
"Stock": any and all shares, rights, interests, participations,
warrants, depositary receipts or other equivalents (however designated) of
corporate stock, including, without limitation, so-called "phantom stock,"
preferred stock and common 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
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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.
"Term Loan" and "Term Loans": as defined in Section 2.2.
"Term Loan Conversion Notice": a notice to the Agent in the form
of Exhibit F.
"Threshold Event": any sale or disposition of Property of the
Borrower which, when combined with all other such sales or dispositions
occurring during any fiscal year of the Borrower after the Effective Date,
results in gross cash proceeds for all such sales or dispositions for such
fiscal year, less applicable Exclusions in such fiscal year, over $150,000,000
(the "Threshold Amount"). For purposes of this definition, the term "gross cash
proceeds" means all cash sales proceeds received from each such sale or
disposition, whether direct or indirect, of such Property.
"Total Capital" shall mean, on any date, the sum of (i) all long
term debt of the Borrower (inclusive of medium term notes) on such date, (ii)
the stockholders' equity in the Borrower on such date, as determined in
accordance with GAAP, (iii) the value of issued and outstanding preferred stock
of the Borrower on such date, and (iv) all Loans outstanding on such date.
"Total Commitment Amount": (i) on any day during a Revolving
Credit Period, the sum of the Commitment Amounts of all Lenders on such day, and
(ii) on any day after the conversion of the Revolving Credit Loans to Term
Loans, the sum of the Term Loans of all Lenders on such day.
"Trust": as defined in the Declaration of Trust.
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"Trustee": as defined in the Declaration of Trust.
"Trust Property": as defined in the Declaration of Trust.
"Undepreciated Real Estate Assets": as of any date the amount of
real estate assets of the Borrower and its Subsidiaries on such date, before
depreciation and amortization, determined on a consolidated basis in accordance
with GAAP.
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. Revolving Credit Loans.
Subject to the terms and conditions hereof, each Lender
severally agrees to make revolving credit loans (each a "Revolving Credit Loan"
and, as the context may require, collectively with all Revolving Credit Loans of
such Lender and with the Revolving Credit Loans of all other Lenders, the
"Revolving Credit Loans") to the Borrower from time to time during the Revolving
Credit Period, in an aggregate principal amount at any one time outstanding not
to exceed such Lender's Commitment Amount.
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At no time shall the aggregate outstanding principal amount of the Revolving
Credit Loans of all Lenders exceed the Total Commitment Amount. During the
Revolving Credit Period, the Borrower may borrow, prepay in whole or in part and
reborrow under the Commitments, all in accordance with the terms and conditions
of this Agreement. Subject to the provisions of Sections 2.4, 2.5 and 2.8,
Revolving Credit Loans may be (a) ABR Advances, (b) Eurodollar Advances, (c)
Competitive Bid Advances or (d) any combination thereof.
2.2. Term Loans.
(a) Subject to the terms and conditions hereof (including,
without limitation, the terms and conditions of Section 2.19(e)), the Borrower
may elect to convert all Revolving Credit Loans of all Lenders outstanding under
this Agreement as of the Revolving Credit Termination Date to a single
non-revolving loan of each such Lender (each such loan being a "Term Loan," and
together with the Term Loans of all Lenders, the "Term Loans"). Such election
shall be made by the Borrower's delivery to the Agent of a Term Loan Conversion
Notice on any date that is at least 3, but not more than 14, Business Days prior
to the Revolving Credit Termination Date. Upon receipt of such notice, the Agent
shall promptly deliver a copy of the notice to each Lender. Provided that no
Event of Default shall have occurred and be continuing on the Revolving Credit
Termination Date, the outstanding principal amount of each Lender's Revolving
Credit Loans shall be converted to a Term Loan of such Lender as of such date
and the Commitment of each Lender to make Revolving Credit Loans shall expire.
Subject to the provisions of Sections 2.4 and 2.8, Term Loans may continue to be
maintained as (a) ABR Advances, (b) Eurodollar Advances, or (c) any combination
thereof.
(b) The Term Loans shall be due and payable on the Maturity
Date.
2.3. Notes.
The Loans made by each Lender shall be evidenced by a promissory
note of the Borrower, substantially in the form of Exhibit G, with appropriate
insertions therein as to date and principal amount (each, as endorsed 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
(including Term Loans of the Lenders, if the Borrower makes an election to
convert the Revolving Credit Loans pursuant to Section 2.2), with interest
thereon as prescribed in Section 2.9. Each Note shall bear interest from the
date thereof on the unpaid principal balance thereof at the applicable interest
rate or rates per annum determined as provided in Section 2.9 and shall be
stated to mature on the
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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, endorsed by such Lender on the
schedule attached thereto or any continuation thereof, provided that the failure
of such Lender to make any such recordation or endorsement shall not affect the
obligations of the Borrower to make payment when due of any amount owing under
the Loan Documents. Interest on each Note shall be payable as specified in
Section 2.9. Upon receipt of each Lender's Note pursuant to Section 5, the Agent
shall mail such Note to such Lender.
2.4. Procedure for Revolving Credit Loan Borrowings Other than
Competitive Bid Borrowings.
(a) Except for Revolving Credit Loans which the Borrower has
requested be made as Competitive Bid Advances (as to which the provisions of
Section 2.5 shall control), the Borrower may borrow under the Commitments on any
Business Day during the Revolving Credit Period, provided, however, that the
Borrower shall notify the Agent (by telephone or telecopy) no later than 12:00
noon, two 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), and provided further that the aggregate amount advanced pursuant to
this Section 2.4 shall not at any time exceed the Available Commitment Amount.
Each such notice shall be irrevocable and confirmed immediately by delivery to
the Agent of a Borrowing Request. Each borrowing of (i) ABR Advances shall be in
an aggregate principal amount equal to $1,000,000 or such amount plus a whole
multiple of $100,000 in excess thereof, or, if less, the Available Commitment
Amount and (ii) 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 Revolving
Credit Loans available to the Agent for the account of the Borrower at the
office of the Agent set forth in Section 11.2 not later than 12:30 P.M. on the
relevant Borrowing Date requested by the Borrower, if the requested borrowing is
a Eurodollar Advance, and 11:30 A.M. on such Borrowing Date, if the requested
borrowing is an ABR Advance, in either case in funds immediately
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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 Revolving Credit Loans requested by the
Borrower, the Agent may assume that such Lender has made such share available to
the Agent on the Borrowing Date in accordance with this Section, provided that
such Lender received notice of the proposed borrowing from the Agent, and the
Agent may, in reliance upon such assumption, make available to the Borrower on
the Borrowing Date a corresponding amount. If and to the extent such Lender
shall not have so made such pro rata share available to the Agent, such Lender
and the Borrower severally agree to pay to the Agent forthwith on demand such
corresponding amount (to the extent not previously paid by the other), together
with interest thereon for each day from the date such amount is made available
to the Borrower until the date such amount is paid to the Agent, at a rate per
annum equal to, in the case of the Borrower, the applicable interest rate set
forth in Section 2.9 for ABR Advances or Eurodollar Advances, as set forth in
the applicable Conventional Borrowing Request, and, in the case of such Lender,
the Federal Funds Rate in effect on each such day (as determined by the Agent).
Such payment by the Borrower, however, shall be without prejudice to its rights
against such Lender. If such Lender shall pay to the Agent such corresponding
amount, such amount so paid shall constitute such Lender's Revolving Credit Loan
as part of the Revolving Credit Loans for purposes of this Agreement, which
Revolving Credit Loan shall be deemed to have been made by such Lender on the
Borrowing Date applicable to such Revolving Credit Loans, but without prejudice
to the Borrower's rights against such Lender.
2.5. Competitive Bid Advances During the Revolving Credit Period, and
Procedure for Competitive Bid Borrowings.
(a) Subject to the terms and conditions of this Agreement,
each Lender severally agrees that the Borrower may effect Competitive Bid
Borrowings under this section 2.5 from time to time on any Business Day during
the Revolving Credit Period in the manner set forth below, provided, however,
that at no time shall the principal balance of all Competitive Bid Advances
outstanding hereunder exceed the lesser of (x) the Competitive Bid Ceiling, and
(y) the Aggregate Commitments less the outstanding principal balance of all
Conventional Advances.
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(i) The Borrower may request a Competitive Bid
Borrowing under this Section 2.5 during the Revolving Credit Period by
giving to the Agent, not later than 10:00 A.M. at least three Business
Days prior to the date of the proposed Competitive Bid Borrowing, a
Competitive Bid Borrowing Request specifying the proposed date and
aggregate amount (which shall not be less than $5,000,000 or such amount
plus a whole multiple of $100,000) of the proposed Competitive Bid
Borrowing, the proposed Interest Period for the Competitive Bid Advances
to be made as part of such Competitive Bid Borrowing (which Interest
Period shall not be later than the Revolving Credit Termination Date and
shall otherwise comply with the applicable provisions of the definition
of "Interest Period"), and such other terms to be applicable to such
Competitive Bid Borrowing as the Borrower may specify. The Agent shall
promptly notify (by telephone or otherwise, to be promptly confirmed by
telecopy or other writing) each Lender of each Competitive Bid Borrowing
Request received by it and the terms contained in such Competitive Bid
Borrowing Request.
(ii) Each Lender may, if, in its sole discretion, it
elects so to do, irrevocably offer to make one or more Competitive Bid
Advances to the Borrower as part of such proposed Competitive Bid
Borrowing at a rate or rates of interest specified by such Lender in its
sole discretion, by notifying (by telephone or otherwise, to be promptly
confirmed by telecopy or other writing) the Agent, before 10:00 A.M. two
Business Days before the Borrowing Date of such proposed Competitive Bid
Borrowing of the minimum amount and maximum amount of each Competitive
Bid Advance which such Lender would be willing to make as part of such
proposed Competitive Bid Borrowing (which amounts may, subject to the
proviso to the first sentence of this Section 2.5, exceed such Lender's
Commitment), the rate or rates of interest therefor and such Lender's
applicable Lending Office with respect to such Competitive Bid Advance.
The Agent shall notify the Borrower of all such offers before 10:30 A.M.
two Business Days before such proposed Borrowing Date, provided that if
BNY in its 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.
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(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
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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 2.5(a)(iii)(B),
and, in the case of such Lender, the Federal Funds Rate in effect on
such day (as determined by the Agent). Such payment by the Borrower,
however, shall be without prejudice to its rights against such
Participating Lender. If such Participating Lender shall pay to the
Agent such corresponding amount, such amount so paid shall constitute
such Lender's Competitive Bid Advance as a part of such Competitive Bid
Advances for purposes of this Agreement, which Competitive Bid Advance
shall be deemed to have been made by such Participating Lender on the
Borrowing Date applicable
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thereto, but without prejudice to the Borrower's rights against such
Participating Lender.
(b) Within the limits and on the conditions set forth in
this Section 2.5, the Borrower may from time to time borrow under this Section
2.5, repay pursuant to clause (c) below, and reborrow under this Section 2.5.
(c) The Borrower shall repay to the Agent for the account of
each Participating Lender which has made a Competitive Bid Advance on the last
day of the Interest Period for such Competitive Bid Advance (such Interest
Period being that specified by the Borrower in the related Competitive Bid
Borrowing Request delivered pursuant to Section 2.5(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 Section 2.5(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 Section 2.5(a)(i), above.
(e) Each Competitive Bid Advance shall be subject to all of
the provisions of this Agreement generally, provided, however, that a
Competitive Bid Advance shall not reduce a Lender's obligation to fund its
Commitment Percentage of any ABR Advance or Eurodollar Advance.
(f) The provisions of this Section 2.5 shall be applicable
only if as of the date of a Competitive Bid Borrowing Request there is more than
one Lender.
2.6. 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) In General. Reductions of the Aggregate Commitments
shall be applied pro rata according to the Commitment of each Lender.
Simultaneously with each
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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 Fixed Rate 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 2.14.
2.7. Prepayments of the Loans.
(a) Voluntary Prepayments. The Borrower may, at its option,
prepay the ABR Advances and Eurodollar Advances, in whole or in part, without
premium or penalty (other than any indemnification amounts, as provided for in
Section 2.14) at any time and from time to time by notifying the Agent in
writing at least one Business Day prior to the proposed prepayment date in the
case of Loans consisting of ABR Advances and at least three Business Days prior
to the proposed prepayment date in the case of Loans consisting of Eurodollar
Advances, specifying the Loans to be prepaid consisting of ABR Advances,
Eurodollar Advances or a combination thereof, the amount to be prepaid and the
date of prepayment. Such notice shall be irrevocable and the amount specified in
such notice shall be due and payable on the date specified, together with
accrued interest to the date of such payment on the amount prepaid. Upon receipt
of such notice, the Agent shall promptly notify each Lender in respect thereof.
Partial prepayments of ABR Advances and/or Eurodollar Advances shall be in an
aggregate principal amount of $1,000,000 or such amount plus a whole multiple of
$100,000 in excess thereof, or, if less, the outstanding principal balance of
thereof. After giving effect to any partial prepayment with respect to
Eurodollar Advances which were made (whether as the result of a borrowing or a
conversion) on the same date and which had the same Interest Period, the
outstanding principal amount of such Eurodollar Advances shall exceed (subject
to Section 2.8) $1,000,000 or such amount plus a whole multiple of $100,000 in
excess thereof. Voluntary prepayments of Competitive Bid Advances are not
permitted.
(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 2.14.
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2.8. 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 two 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. Each conversion notice must be
delivered to the Agent prior to 12:00 noon, in the case of conversions to
Eurodollar Advances, and 11:00 A.M., in the case of conversions to ABR Advances,
on the Business Day required by this Section for the delivery of such notices to
the Agent. 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).
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<PAGE> 29
2.9. Interest Rate and Payment Dates.
(a) Prior to Maturity. Except as otherwise provided in
Section 2.9(b), prior to the Maturity Date, the Loans shall bear interest on the
outstanding principal balance thereof at the applicable interest rate or rates
per annum set forth below:
<TABLE>
<CAPTION>
ADVANCES RATE
-------- ----
<S> <C>
Each ABR Advance Alternate Base Rate.
Each Eurodollar Eurodollar Rate for the applicable
Advance Interest Period plus the Applicable
Margin.
Competitive Bid the rate for the applicable
Advance Competitive Bid Advance determined
pursuant to Section 2.5.
</TABLE>
(b) Event of Default. After the occurrence and during the
continuance of an Event of Default, the outstanding principal balance of the
Loans shall bear interest at a rate per annum equal to 2% plus the rate which
would otherwise be applicable under Section 2.9(a), and any overdue interest or
other amount payable under the Loan Documents shall bear interest, whether
before or after the entry of any judgment thereon, at a rate per annum equal to
the Alternate Base Rate plus 2%. All such interest shall be payable on demand.
(c) General. Interest on (i) ABR Advances to the extent
based on the BNY Rate shall be calculated on the basis of a 365 or 366-day year
(as the case may be), and (ii) ABR Advances to the extent based on the Federal
Funds Rate, Eurodollar Advances and Competitive Bid Advances shall be 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 2.9(b), interest shall be payable in arrears on each
Interest Payment Date and upon payment (including prepayment) of the Loans. Any
change in the interest rate on the Loans resulting from a change in the
Alternate Base Rate or a Pricing Level shall become effective as of the opening
of business on the day on which such change shall become 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 or
a Pricing Level, but any failure to so notify shall not in any manner affect the
obligation of the Borrower to pay interest on the Loans in the amounts and on
the dates required. Each determination of the Alternate Base Rate, a Eurodollar
Rate or a Pricing Level by the Agent pursuant to this Agreement shall be
conclusive and binding on the Borrower and the Lenders absent manifest error. At
no time shall the interest rate payable on the Loans of any Lender,
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<PAGE> 30
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.
2.10. Substituted Interest Rate.
In the event that (i) the Agent shall have reasonably determined
(which determination shall be conclusive and binding upon the Borrower) that by
reason of circumstances affecting the interbank eurodollar market either
adequate and reasonable means do not exist for ascertaining the Eurodollar Rate
applicable pursuant to Section 2.9 or (ii) the Required Lenders shall have
notified the Agent that they have reasonably determined (which 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 2.9 or (y) the
Agent having been notified by such Required
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<PAGE> 31
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.
2.11. 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.
2.12. 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.
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<PAGE> 32
2.13. 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 2.11. No failure by any Lender to
demand compensation for any increased cost during any Interest Period shall
constitute a waiver of such Lender's right to demand such compensation at any
time. A statement setting forth the 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
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<PAGE> 33
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.
2.14. Indemnification for Loss Relating to Eurodollar Advances and
Competitive Bid Advances.
Notwithstanding anything contained herein to the contrary, if
the Borrower shall fail to borrow or convert on a Borrowing Date or Conversion
Date after it shall have given notice to do so in which it shall have requested
a Eurodollar Advance pursuant to Section 2.4 or 2.8, or shall have accepted one
or more offers of Competitive Bid Advances under Section 2.5 or if a Eurodollar
Advance or Competitive Bid Advance shall be terminated for any reason prior to
the last day of the Interest Period 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
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<PAGE> 34
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.
2.15. Option to Fund.
Each Lender has indicated that, if the Borrower elects to borrow
or convert to Eurodollar Advances, or obtain a Competitive Bid Advance, such
Lender may wish to purchase one or more deposits in order to fund or maintain
its funding of such Loan during the Interest Period in question; it being
understood that the provisions of this Agreement relating to such funding are
included only for the purpose of determining the rate of interest to be paid on
such Loan. Each Lender shall be entitled to fund and maintain its funding of all
or any part of each Eurodollar Advance or Competitive Bid Advance made by it in
any manner it sees fit, but all determinations under Section 2.14 shall be made
as if such Lender had actually funded and maintained its funding of such Loan
during the applicable Interest Period through the purchase of deposits in an
amount equal to such Loan and having a maturity corresponding to such Interest
Period. The obligations of the Borrower under Sections 2.10, 2.11, 2.13 and 2.14
shall survive the termination of the Agreement and the Aggregate Commitments and
the payment of the Notes and all other amounts payable under the Loan Documents.
2.16. 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.
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<PAGE> 35
2.17. 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.
2.18. 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
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<PAGE> 36
amount of principal and interest paid by the Borrower in respect of such Loans
and as to the other information relating to the Loans, and amounts paid and
payable by the Borrower hereunder and under the Notes. The Agent will when
requested by the Borrower advise the Borrower of the principal and interest
outstanding under the Loans as of the date of such request and the dates on
which such payments are due.
2.19. Extension of Revolving Credit Termination Date.
(a) Provided that no Default or Event of Default exists
during the periods set forth below, the Borrower may request one or more
extensions of the Revolving Credit Termination Date, each such extension to be
for a period of 364-days. The Borrower shall give notice of each such request to
the Agent (each, an "Extension Request") at least 30 days prior to the then
current Revolving Credit Termination Date (the Lenders being under no obligation
to consider any request delivered after such date). Any extension of the
Revolving Credit Termination Date requested in accordance with the foregoing
procedure shall be determined as follows:
(i) (i) If all of the Lenders consent to an
Extension Request within 30, but not less than 15, days from the date of
such Extension Request (such period being the "Extension Consideration
Period") the Revolving Credit Termination Date shall be extended as
provided above. Upon receipt of such consents from each Lender, the
Agent will notify the Lenders of its receipt of all such consents and
the new Revolving Credit Termination Date.
(ii) If fewer than all Lenders, but at least the
Required Lenders, consent to an Extension Request, by giving written
notice thereof to the Borrower and the Agent during the Extension
Consideration Period, the Borrower may elect to (i) withdraw such
Extension Request, (ii) effect an assignment of all or part of the
rights and obligations under the Loan Documents of each Lender who did
not consent to such Extension Request (each a "Nonconsenting Lender" and
collectively, the "Nonconsenting Lenders"), subject to, and in
accordance with, the provisions of Section 2.19(c), or (iii) terminate
the Commitment of each Nonconsenting Lender effective on the then
current Revolving Credit Termination Date with respect to such
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
Revolving Credit Termination Date shall be extended as to all Lenders
from whom the Agent has received such consent (the "Consenting
Lenders"), and the Agent will notify the Consenting Lenders of the new
Revolving Credit Termination Date and the new Total Commitment Amount,
and (z) each Nonconsenting Lender shall cease to be
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<PAGE> 37
a "Lender" for all purposes of this Agreement after the then current
Revolving Credit Termination Date applicable to such Nonconsenting
Lender (except with respect to its rights hereunder to be reimbursed for
costs and expenses, and to 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.
(iii) If Lenders comprising at least the Required
Lenders do not consent to an Extension Request, by giving written notice
thereof to the Borrower during the Extension Consideration Period, the
Revolving Credit Termination Date shall not be extended.
(b) In the event the Borrower elects to terminate the
Commitment of the Nonconsenting Lender under Section 2.19(a)(ii) above, the
Agent is authorized and directed to amend Exhibit B, effective on the then
current Revolving Credit Termination Date, and promptly distribute a copy
thereof to the Borrower and the Consenting Lenders reflecting the Commitment
Amount of each Consenting Lender and the new Total Commitment Amount. The new
Commitment Percentage of each Consenting Lender based on such new Total
Commitment Amount (after giving effect to the termination of each Nonconsenting
Lender's Commitment) is sometimes hereinafter referred to as the "Reallocated
Commitment Percentage." The Consenting Lenders agree (subject to their receipt
of any mandatory prepayment referred to below), effective on the then current
Revolving Credit Termination Date, to assume their Reallocated Commitment
Percentages of the Revolving Credit Loans, provided, that if, after giving
effect to such assumption, the outstanding principal balance of the Consenting
Lenders' Revolving Credit Loans would exceed the Total Commitment Amount or any
Lender's Commitment Amount, then the Borrower will pay to the Agent on the then
current Revolving Credit Termination Date for distribution to the Consenting
Lenders, an amount sufficient to reduce the outstanding principal balance of the
Revolving Credit Loans to an amount which does not exceed the Total Commitment
Amount and each Consenting Lender's Commitment Amount.
(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 Section 2.19(a)(ii) above, then, provided that
there shall not exist and be continuing any Default or Event of Default, the
Borrower may, subject to the terms of this Section 2.19(c), obtain the agreement
of a Substitute Lender to accept such an assignment, and one or more
Nonconsenting Lenders designated by the Borrower (as hereinafter set forth)
shall, subject to the terms of this Section 2.19(c), assign all or part of their
rights and obligations in the Loan Documents to such Substitute Lender. The
Borrower shall at least 15 days prior to the Revolving Credit Termination Date
on which the Commitments of such Nonconsenting Lenders shall terminate (a
"Nonconsenting Lender Termination Date") notify the Agent and one or more of the
Nonconsenting
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<PAGE> 38
Lenders of a Substitute Lender's agreement to accept such assignment from such
Nonconsenting Lenders. Such notice shall set forth (i) the name of the
Nonconsenting Lenders whose rights and obligations are to be assigned to said
Substitute Lender, (ii) the percentage interest of the Nonconsenting Lenders'
Commitments to be assigned to said Substitute Lender, and (iii) the amount of
the Revolving Credit Loans to be so assigned and their type (i.e. ABR Advances,
Eurodollar Advances and/or Competitive Bid Advances). Upon the Agent's consent
to such assignment (which consent or denial shall be given by the Agent to the
Borrower and applicable Nonconsenting Lenders within 5 days after the Agent's
receipt of the foregoing notice from the Borrower) such Nonconsenting Lenders
and the Substitute Lender shall enter into an Assignment and Assumption
Agreement substantially in the form of Exhibit A. Upon such execution, delivery,
acceptance and recording by the Agent, from and after the effective date
specified in such Assignment and Assumption Agreement (which date shall not be
later than the Nonconsenting Lender 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 Revolving
Credit Loans assigned to, and Commitments assumed by, the Substitute Lender, and
the Agent shall amend Exhibit B, effective on such date to reflect the
Commitment of each Consenting Lender, the new Commitment of each Substitute
Lender and the new Total Commitment Amount and shall promptly distribute a copy
thereof to the Borrower, each Consenting Lender and such Substitute Lender.
At the request of the Borrower, the Nonconsenting Lender whose Commitment has
been assigned shall promptly after the later to occur of such effective date and
payment in full of all amounts hereunder and under the Note return to the
Borrower its Note or other evidence that such Nonconsenting Lender has received
full payment of such amounts. The purchase price paid under each Assignment and
Assumption Agreement delivered pursuant to this Section 2.19(c) shall be the
principal amount of the Revolving Credit Loans assigned thereunder. On the
effective date of such Assignment and Assumption Agreement, the Borrower, the
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 Revolving Credit Loans, it being understood, however,
that the Nonconsenting Lender may require, as a condition to its execution and
delivery of the Assignment and Assumption Agreement, that it receive all 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 2.19(a)(ii) with respect to the Revolving Credit Loans and the
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<PAGE> 39
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 2.19(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 Revolving Credit Termination
Date, provided that no Lender's failure to so respond shall create any claim
against it or have the effect of extending the Revolving Credit Termination Date
of such Lender's Commitment.
(e) At any time prior to the then existing Revolving Credit
Termination Date, the Borrower may withdraw its Extension Request and may (i)
elect to convert the outstanding principal balance of all Revolving Credit Loans
to the Term Loans on such Revolving Credit Termination Date, subject to the
provisions of Section 2.2, or (ii) allow the Commitments to terminate on such
Revolving Credit Termination Date, in which case the Lenders shall thereafter
have no further obligations to the Borrower under this Agreement and all Loans
must be paid in full, together with all accrued and unpaid interest, Facility
Fees and other amounts due hereunder. During any period that an Extension
Request has been made and not withdrawn by the Borrower, the Borrower shall not
be entitled to convert the Revolving Credit Loans to Term Loans.
2.20. Commitment Increases.
(a) At any time and from time to time after the Effective
Date and during the Revolving Credit Period, subject to the prior written
consent of the Agent (which consent shall not be unreasonably withheld), and
provided that no Default shall have occurred and is continuing, the Total
Commitment Amount may be increased either by new Lenders establishing
Commitments or by one or more then existing Lenders increasing their Commitments
(each such increase by either means, a "Commitment Increase", and each new
Lender or each Lender increasing its Commitment, an "Additional Commitment
Lender") provided that no Commitment Increase shall become effective unless and
until (i) the Borrower, the Agent and the Additional Commitment Lender shall
have executed and delivered an agreement substantially in the form of Exhibit H
(a "Commitment Increase Supplement") with respect to such Commitment
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Increase, and (ii) if, after giving effect thereto, the aggregate amount of the
Commitments would exceed $100,000,000, such Commitment Increase shall have been
consented to in writing by each of the other Lenders. On the effective date of
any such Commitment Increase (each an "Increase Effective Date"), the Additional
Commitment Lender shall pay to each other Lender the purchase price, as
determined in accordance with subsection (b) below, for an assignment of a
portion of such other Lender's advances outstanding at such time that, after
giving effect to such assignments, the aggregate amount of Revolving Credit
Loans of each Lender (including the Additional Commitment Lender) shall be
proportional. Upon payment of such purchase price, each other Lender shall be
deemed to have sold and made such an assignment to such Additional Commitment
Lender, and such Additional Commitment Lender shall be deemed to have purchased
and assumed such an assignment from each other Lender, on the terms set forth in
subsection (b) below. Upon the effectiveness of any Commitment Increase, the
Borrower shall issue a Note to the Additional Commitment Lender (against
surrender of its existing Note in the case of an existing Lender), and to the
existing Lenders if necessary, in the amount of such Additional Commitment
Lender's Commitment after giving effect to such Commitment Increase. The Agent
is hereby directed to amend Exhibit B hereto on each Increase Effective Date to
reflect the Total Commitment Amount and the Commitment of each Lender as of such
Increase Effective Date. As of the Increase Effective Date, each Additional
Commitment Lender shall be a "Lender" hereunder, and shall have all of the
rights and obligations of a Lender hereunder.
(b) Each assignment of Revolving Credit Loans by any Lender
(an "Assigning Lender") to an Additional Commitment Lender pursuant to
subsection (a) of this Agreement shall be made on the following terms:
(i) The purchase price for the assignment shall be
equal to the aggregate principal amount of the Revolving Credit Loans
assigned plus the amount of accrued and unpaid interest thereon on the
date of the assignment. The purchase price shall be payable, not later
than 12:00 noon (New York City time) on the effective date of the
applicable Commitment Increase, in U.S. Dollars in funds immediately
available to the Assigning Lender at such office of the Assigning Lender
(or a commercial bank designated by it) located in the United States as
the Assigning Lender shall specify to the Assignee.
(ii) The assignment shall consist of an equal
percentage of all Revolving Credit Loans of the Assigning Lender
outstanding and shall include all of the Assigning Lender's rights under
this Agreement in respect of the portion of the Revolving Credit Loans
of the Assigning Lender assigned, including accrued interest thereon.
(iii) The assignment shall be without recourse to the
Assigning Lender. The Assigning Lender shall not be deemed to have made
any
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representation or warranty or to have assumed any responsibility with
respect to (a) any statements, warranties or representations made in or
in connection with the Agreement or any other instrument or document
furnished pursuant thereto or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Agreement or
any other instrument or document furnished pursuant thereto, other than
as set forth in clause (iv) below, or (b) the financial condition of the
Borrower or any of its Subsidiaries, or the performance or observance by
the Borrower or any of its Subsidiaries of any of their respective
obligations under the Agreement or any other instrument or document
furnished pursuant thereto.
(iv) The Assigning Lender shall, at the time of the
assignment, be deemed to have represented and warranted that (a) it has
full power, authority and legal right to make the assignment and (b) it
is the legal and beneficial owner of the rights assigned and such rights
are free and clear of any lien or adverse claim, including any
participation.
(v) The Additional Commitment Lender which is the
assignee of the Assigning Lender's interest shall, at the time of the
assignment, be deemed to have (a) represented and warranted that it has
full power, authority and legal right to purchase and assume the
Assignment; (b) confirmed that it has received a copy of this Agreement,
together with copies of the most recent financial statements and reports
delivered pursuant to Section 7.1 (a), (b) and (c) of this Agreement and
such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to purchase and assume the
assignment; and (c) agreed that it will, independently and without
reliance upon the Assigning Lender, the Agent or any other Lender and
based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not
taking action under this Agreement.
2.21. 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 2.4 or 2.5, and (ii) shall not have notified
either the Agent or the Borrower (either orally or in writing) that it has
determined (which determination shall be made by such Lender reasonably and in
good faith) that it is not obligated by the terms of this Agreement to make such
advance (for example, by reason of the occurrence of a Default or the failure of
the Borrower to satisfy any other condition to such borrowing) (such Lender's
Commitment Percentage of such borrowing being the "Defaulted Portion"), then for
the period that such failure or refusal shall continue, and such notice is not
provided, the 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
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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 provisions of Section 2.21, 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 Revolving
Credit Period and any period that one or more Term Loans is outstanding, equal
to the Applicable Facility Fee Percentage of the average daily Total Commitment
Amount (including any increase thereto pursuant to Section 2.20). The Facility
Fee shall be payable quarterly in arrears on the last day of each March, June,
September and December of each year, commencing on the first such day following
the Effective Date, on each optional reduction of the Total Commitment Amount,
and on the date that the Commitments shall expire or otherwise terminate. The
Facility Fee (and the Applicable Facility Fee Percentage) shall be calculated on
the basis of a 360 day year for the actual number of days elapsed without regard
to the amount of Loans outstanding during any period for which the Facility Fee
is computed.
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 Revolving Credit Loans
as Competitive Bid Advances, each such Lender's pro rata share of such payments
which are in respect principal or interest due on such Competitive Bid Advances
in accordance with Sections 2.5(c) and (d) and (iii) in the case of Facility
Fees, to all Lenders pro rata according each Lender's Commitment Percentage
thereof (except as otherwise provided in Section 2.21). The failure of the
Borrower to make any such payment by such time shall not constitute a default
hereunder, provided that such payment is made on such due date, but any such
payment made after 12:00 noon on such due date shall be deemed to have been made
on the next Business Day for the purpose of calculating interest on amounts
outstanding on the Loans. If any payment hereunder or under the Notes shall be
due and payable on a day which is not a Business Day, the due date thereof
(except as otherwise provided in the definition of Interest Period) shall be
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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 2.14.
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. As of the date hereof, 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.
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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
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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.
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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 audited Consolidated Balance Sheet of the Borrower as of
July 31, 1997, and the related Consolidated Statements of Operations,
Stockholders' Equity and Cash Flows for the fiscal years of the Borrower then
ended (with the related notes and schedules, the "Financial Statements"). The
Financial Statements fairly present the Consolidated 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.
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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,
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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, or if any such Real
Property is located in such a special flood hazard area, then the Borrower has
obtained all insurance that is required to be maintained by law or which is
customarily maintained by Persons engaged in similar businesses and owning
similar Properties in the same general areas in which the Borrower operates.
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
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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 Sections 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.
(a) The Agent shall have received a certificate, dated the
first Borrowing Date, of the Secretary or Assistant Secretary of the Borrower
(i) attaching a true and complete copy of the resolutions of its Trustees and of
all documents evidencing other necessary action (in form and substance
reasonably satisfactory to the Agent) taken by it to authorize the Loan
Documents and the transactions contemplated thereby, (ii) attaching a true and
complete copy of its Declaration of Trust, (iii) setting forth the incumbency of
its officer or officers who may sign the Loan Documents, including therein a
signature specimen of such officer or officers, and (iv) attaching a certificate
of said Secretary or Assistant Secretary to the effect that the Declaration of
Trust is a true
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and complete copy thereof, is in full force and effect and has not been amended
or modified.
(b) The Agent shall have received certificates of good
standing from the Secretaries of State for the Commonwealth of Massachusetts,
and each other jurisdiction in which the Borrower is qualified to do business,
provided that such Secretaries issue such certificates with respect to the
Borrower.
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, LLP, outside counsel to the Borrower, and (ii) Steven F.
Siegel, in-house counsel to the Borrower, each addressed to the Agent, the
Lenders and Special Counsel, and each dated the first Borrowing Date, in the
form of Exhibit I.
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 J.
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5.7. Fees.
The Facility Fees 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.
5.9. Termination of Existing Credit Agreement.
On the Effective Date, all loans outstanding under the Existing
Credit Agreement, together with all interest, fees, breakage costs and other
amounts outstanding thereunder, shall have been paid to the lenders thereunder
in full and the obligations of such lenders under the Existing Credit Agreement
shall have been terminated.
6. CONDITIONS OF LENDING - ALL LOANS
The obligation of each Lender to make any Revolving Credit Loan or
convert its Revolving Credit Loans to Term Loans is subject to the 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.
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6.3. Borrowing Request; Term Loan Conversion Notice.
With respect to each borrowing of a Revolving Credit Loan, the
Agent shall have received a Conventional Borrowing Request or a Competitive Rate
Borrowing Request, as the case may be, duly executed by an Authorized Signatory
of the Borrower. With respect to the conversion of Revolving Credit Loans to
Term Loans pursuant to Section 2.2, the Agent shall have timely received a Term
Loan Conversion Notice from the Borrower.
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.
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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
Balance Sheet[s] as at the end of such fiscal year, together with the related
Consolidated 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 balance sheet[s] of the Borrower as at the end of each such
quarterly period, together with the related Consolidated 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
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financial condition and the Consolidated results of operations of the Borrower
and its Subsidiaries.
(c) Within 60 days after the end of each of the first three
fiscal quarters of the Borrower (120 days after the end of the last fiscal
quarter of the Borrower), a Compliance Certificate, certified by the Chief
Financial Officer of the Borrower (or such other officer as shall be acceptable
to the Agent) setting forth in reasonable detail the computations demonstrating
the Borrower's compliance with the provisions of Sections 8.4(e), 8.14, 8.15,
8.16 and 8.17.
(d) Such other information as the Agent or any Lender may
reasonably request from time to time.
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;
(c) Promptly upon becoming available, copies of all (i)
regular, periodic or special reports, schedules and other material which the
Borrower or any Subsidiary may now or hereafter be required to file with or
deliver to any securities
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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
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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;
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(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
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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.
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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. 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
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Subsidiary, (v) statutory Liens arising by operation of law such as mechanics',
materialmen's, carriers', warehousemen's liens incurred in the ordinary course
of business which are not delinquent or which are being contested in accordance
with Section 7.4, provided that enforcement of such Liens is stayed pending such
contest, (vi) Liens arising out of judgments or decrees which are being
contested in accordance with Section 7.4, provided that enforcement of such
Liens is stayed pending such contest, (vii) mortgages on Real Property of the
Borrower, provided that the existence of such mortgages, and the indebtedness
secured thereby, does not violate any other provision of this Agreement), (viii)
Liens on other Property of the Borrower not included in clauses (i) through
(viii) of this Section which do not in the aggregate exceed $3,000,000.
8.2. 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.
8.3. Contingent Obligations.
Assume, guarantee, endorse, contingently agree to purchase or
perform, or otherwise become liable upon any Contingent Obligation or permit any
Subsidiary so to do, other than a guarantee by the Borrower of an obligation of
a Subsidiary of the Borrower (but only to the extent that if the Borrower had
entered into such obligation directly, the Borrower would not be in violation of
any of the terms of this Agreement), except the Contingent Obligations of the
Borrower or any Subsidiary existing on the date hereof as set forth on Schedule
8.3.
8.4. 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
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having undivided capital, surplus and undivided profits exceeding $500,000,000
and a long term debt rating of A or A2, as determined, respectively, by S&P and
Moody's;
(b) Investments in short-term direct obligations of the
United States of America or agencies thereof whose obligations are guaranteed by
the United States of America;
(c) Investments existing on the date hereof as set forth on
Schedule 8.4;
(d) normal business banking accounts and short-term
certificates of deposit and time deposits in, or issued by, federally insured
institutions in amounts not exceeding the limits of such insurance;
(e) Investments consisting of loans to employees of the
Borrower, provided that all such loans in the aggregate do not at any time
exceed $10,000,000 in the aggregate; and
(f) Investments permitted under Sections 856-859 of the
Code.
8.5. 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.
8.6. 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).
8.7. 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, other than as contemplated under that certain Notice
of Annual Meeting of Shareholders, dated October 22, 1997, or permit any
Subsidiary to amend its organizational documents in a manner which could have
the same result.
8.8. 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.
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8.9. Prepayments of Indebtedness.
Prepay or obligate itself to prepay, in whole or in part, any
Indebtedness or permit any Subsidiary so to do except (i) Indebtedness under the
Loan Documents (unless such prepayment is restricted by the Loan Documents), and
(ii) Indebtedness secured by a mortgage on Real Property, provided that (x) such
prepayment does not otherwise result in a Default under this Agreement and (y)
the Borrower complies with the provisions of Section 2.7(b) in connection with
such prepayment, if applicable.
8.10. 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.
8.11. Fiscal Year.
Change its fiscal year from that in effect on the Effective
Date, or permit any Subsidiary so to do.
8.12. 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.
8.13. Issuance of Additional Capital Stock by Subsidiaries.
Permit any Subsidiary to issue any additional Stock or other
equity interest of such Subsidiary.
8.14. Interest Coverage Ratio.
Permit the Interest Coverage Ratio to be less than 2.0:1.0 at
any time.
8.15. Minimum Tangible Net Worth.
Permit the Tangible Net Worth of the Borrower and its
Subsidiaries on a Consolidated basis at any time to be less than $550,000,000.
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8.16. Maximum Total Indebtedness.
Permit either (i) the total indebtedness of the Borrower, as
determined in accordance with GAAP, at any time to be more than 50% of Total
Capital at such time, or (ii) the indebtedness of the Borrower secured by
mortgages on Real Property owned by the Borrower at any time to exceed 40% of
Total Capital at such time.
8.17. Minimum Unencumbered Assets.
Permit the Undepreciated Real Estate Assets at any time to be
less than the total of all unsecured Indebtedness of the Borrower at such time.
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 2.16; or
(d) The failure of the Borrower to observe or perform any
covenant or agreement contained in Sections 7.3, 7.11 or 8; or
(e) The failure to observe or perform any other term,
covenant, or agreement contained in any Loan Document and such failure shall
have continued unremedied for a period of 30 days after the Borrower shall have
obtained knowledge thereof; or
(f) Any representation or warranty of the Borrower (or of
any officer of the Borrower on its behalf) made in any Loan Document to which it
is a party or in any certificate, report, opinion (other than an opinion of
counsel) or other document delivered or to be delivered pursuant thereto, shall
prove to have been incorrect or misleading (whether because of 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
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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
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(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.
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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
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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.
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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,
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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.
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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, without the consent of all of the
Lenders: (i) change the Commitments of any Lender or the Total Commitment
Amount, (ii) extend the Revolving Credit Termination Date (other than as
provided for in Section 2.19); (iii) decrease the rate, or extend the time of
payment, of interest of, or change or forgive the principal amount of, or change
the requirement that payments and prepayments of principal of, and payments of
interest on, the Notes be made pro rata to the Lenders on the basis of the
outstanding principal amount of the Loans, (iv) amend the definition of
"Required Lender", or (v) change the provisions of Sections 2.9, 2.12, 2.13,
2.14, 2.19, 2.20, 3.1 or 11.1; 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.
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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, LLP
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
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One Wall Street
Agency Function Administration
18th Floor
New York, New York 10286
Attention: Michael Pizarro
Agency Function Administrator
Telephone: (212) 635-4695
Telecopy: (212) 635-6365 or 6366 or 6367
with a copy to:
The Bank of New York
One Wall Street
New York, New York 10286
Attention: Andrea Stuart,
Vice President
Telephone: (212) 635-4672
Telecopy: (212) 635-7904,
except that any notice, request or demand by the Borrower to or upon the Agent
or the Lenders pursuant to Sections 2.4, 2.5 or 2.8 shall not be effective until
received. Any party to a Loan Document may rely on signatures of the parties
thereto which are transmitted by telecopier or other electronic means as fully
as if originally signed.
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
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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
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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 2.11, 2.13
or 2.14 as a result of a transfer of any such Loans to a different office of
such Lender than it would be entitled to immediately prior thereto unless such
claim would have arisen even if such transfer had not occurred.
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
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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 $3,500. 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 Commitment Amounts set forth in Exhibit B
shall be adjusted accordingly by the Agent and a new Exhibit B shall be
distributed by the Agent to the Borrower and each Lender.
(c) Each Lender may grant participations in all or any part
of its Loans, its Note and its Commitment to one or more banks, insurance
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 2.10, 2.11, 2.12, 2.13, 2.14, 2.15 and 2.17 be deemed
to be a "Lender"; provided, however, the Borrower shall not, at any time, be
obligated to pay any participant in any interest of any Lender hereunder any sum
in excess of the sum which the Borrower would have been obligated to pay to such
Lender in respect of such interest had such Lender not sold such participation.
(d) If any (i) assignment is made pursuant to subsection (b)
or (ii) any participation is granted pursuant to subsection (c), shall be made
to any Person that is
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organized under the laws of any jurisdiction other than the United States of
America or any State thereof, such Person shall furnish such certificates,
documents or other evidence to the Borrower and the Agent, in the case of clause
(i) and to the Borrower and the Lender which sold such participation in the case
of clause (ii), as shall be required by Section 2.11(b) to evidence such
Person's exemption from U.S. withholding taxes with respect to any payments
under or pursuant to the Loan Documents because such Person is eligible for the
benefits of a tax treaty which provides for a zero % rate of tax on any payments
under the Loan Documents or because any such payments to such Person are
effectively connected with the conduct by such Person of a trade or business in
the United States.
(e) No Lender shall, as between and among the Borrower, the
Agent and such Lender, be relieved of any of its obligations under the Loan
Documents as a result of any sale, assignment, transfer or negotiation of, or
granting of participations in, all or any part of its Loans, its Commitment or
its Note, except that a Lender shall be relieved of its obligations to the
extent of any such sale, assignment, transfer, or negotiation of all or any part
of its Loans, its Commitment or its Note pursuant to subsection (b) above.
(f) Notwithstanding anything to the contrary contained in
this Section, any Lender may at any time or from time to time assign all or any
portion of its rights under the Loan Documents to a Federal Reserve Bank,
provided that any such assignment shall not release such assignor from its
obligations thereunder.
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
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respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to
events or proceedings of the nature referred to in Section 9.1 (i) or (j), or
otherwise) in a greater proportion than any such payment to and collateral
received by any other Lender in respect of such other Lender's Loans, or
interest thereon, such Benefited Lender shall purchase for cash from each of the
other Lenders such portion of each such other Lender's Loans, and shall provide
each of such other Lenders with the benefits of any such collateral, or the
proceeds thereof, as shall be necessary to cause such Benefited Lender to share
the excess payment or benefits of such collateral or proceeds ratably with each
of the Lenders, provided, however, that if all or any portion of such excess
payment or benefits is thereafter recovered from such Benefited Lender, such
purchase shall be rescinded, and the purchase price and benefits returned, to
the extent of such recovery, but without interest. The Borrower agrees that each
Lender so purchasing a portion of another Lender's Loans may exercise all rights
of payment (including, without limitation, rights of set-off, to the extent not
prohibited by law) with respect to such portion as fully as if such Lender were
the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders
provided by law, upon the occurrence of an Event of Default and the acceleration
of the obligations owing in connection with the Loan Documents, or at any time
upon the occurrence and during the continuance of an Event of Default, under
Section 9.1(a) or (b), each Lender shall have the right, without prior notice to
the Borrower, any such notice being expressly waived by the Borrower to the
extent not prohibited by applicable law, to set-off and apply against any
indebtedness, whether matured or unmatured, of the Borrower to such Lender, any
amount owing from such Lender to the Borrower, at, or at any time after, the
happening of any of the above-mentioned events. To the extent not prohibited by
applicable law, the aforesaid right of set-off may be exercised by such Lender
against the Borrower or against any trustee in bankruptcy, custodian, debtor in
possession, assignee for the benefit of creditors, receiver, or execution,
judgment or attachment creditor of the Borrower, or against anyone else claiming
through or against the Borrower or such trustee in bankruptcy, custodian, debtor
in possession, assignee for the benefit of creditors, receivers, or execution,
judgment or attachment creditor, notwithstanding the fact that such right of
set-off shall not have been exercised by such Lender prior to the making, filing
or issuance, or service upon such Lender of, or of notice of, any such petition,
assignment for the benefit of creditors, appointment or application for the
appointment of a receiver, or issuance of execution, subpoena, order or 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
-76-
<PAGE> 78
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
2.16, or in violation of any federal securities or tax laws or of any other
statute, regulation or other law of any jurisdiction applicable thereto, whether
such Indemnified Person is a party thereto. The indemnity set forth herein shall
be in addition to any other obligations, liabilities or other indemnifications
of the Borrower to each Indemnified Person under the Loan Documents or at common
law or otherwise, and shall survive any termination of the Loan Documents, the
expiration of the Commitments and the payment of all indebtedness of the
Borrower under the Loan Documents, provided that the Borrower shall have no
obligation under this Section to an Indemnified Person with respect to any of
the foregoing to the extent found in a final judgment of a court having
jurisdiction to have resulted primarily out of the gross negligence or wilful
misconduct of such Indemnified Person or arising solely from claims between one
such Indemnified Person and another such Indemnified Person.
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.
-77-
<PAGE> 79
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.
-78-
<PAGE> 80
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
-79-
<PAGE> 81
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.
-80-
<PAGE> 82
IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement
to be duly executed and delivered by their proper and duly authorized officers
as of the day and year first above written.
NEW PLAN REALTY TRUST
By: /s/ Dean Bernstein
-------------------------------------
Dean Bernstein
Vice President
THE BANK OF NEW YORK,
as Agent and a Lender
By: /s/ Andrea H. Stuart
-------------------------------------
Andrea H. Stuart
Vice President
FLEET NATIONAL BANK
as a Lender
By: /s/ Thomas Hanold
-------------------------------------
Thomas Hanold
Vice President
<PAGE> 1
EXHIBIT 10.30
FIRST AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
DATED AS OF MARCH 31, 1998
AMONG
EXCEL REALTY TRUST, INC.
AND
BANKBOSTON, N.A.
AND
THE OTHER BANKS WHICH ARE
A PARTY TO THIS AGREEMENT
AND
THE OTHER BANKS WHICH MAY BECOME
PARTIES TO THIS AGREEMENT
AND
BANKBOSTON, N.A.
AS AGENT
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
Section 1. DEFINITIONS AND RULES OF INTERPRETATION..........................................................................-1-
Section 1.1. Definitions...........................................................................................-1-
Section 1.2. Rules of Interpretation..............................................................................-15-
Section 2. THE REVOLVING CREDIT FACILITY...................................................................................-16-
Section 2.1. Commitment to Lend...................................................................................-16-
Section 2.2. Facility Fee.........................................................................................-16-
Section 2.3. Reduction and Termination of Commitment..............................................................-17-
Section 2.4. Notes................................................................................................-17-
Section 2.4A Swing Loan Commitments...............................................................................-18-
Section 2.5. Interest on Loans....................................................................................-20-
Section 2.6. Requests for Loans...................................................................................-20-
Section 2.7. Funds for Loans......................................................................................-21-
Section 3. REPAYMENT OF THE LOANS..........................................................................................-22-
Section 3.1. Stated Maturity......................................................................................-22-
Section 3.2. Mandatory Prepayments................................................................................-22-
Section 3.3. Optional Prepayments.................................................................................-22-
Section 3.4. Partial Prepayments..................................................................................-23-
Section 3.5. Effect of Prepayments................................................................................-23-
Section 3.6. Proceeds from Debt or Equity Offering................................................................-23-
Section 4. CERTAIN GENERAL PROVISIONS......................................................................................-23-
Section 4.1. Conversion Options...................................................................................-23-
Section 4.2. Closing Fee..........................................................................................-24-
Section 4.3. Agent's Fee..........................................................................................-24-
Section 4.4. Funds for Payments...................................................................................-24-
Section 4.5. Computations.........................................................................................-25-
Section 4.6. Inability to Determine LIBOR Rate....................................................................-25-
Section 4.7. Illegality...........................................................................................-26-
Section 4.8. Additional Interest..................................................................................-26-
Section 4.9. Additional Costs, Etc................................................................................-26-
Section 4.10. Capital Adequacy....................................................................................-27-
Section 4.11. Indemnity of Borrower...............................................................................-28-
Section 4.12. Interest on Overdue Amounts; Late Charge............................................................-28-
Section 4.13. Certificate..........................................................................................-28-
Section 4.14. Limitation on Interest..............................................................................-29-
Section 5. SECURITY........................................................................................................-29-
Section 6. REPRESENTATIONS AND WARRANTIES..................................................................................-29-
Section 6.1. Corporate Authority, Etc.............................................................................-29-
Section 6.2. Approvals............................................................................................-30-
Section 6.3. Title to Properties; Leases..........................................................................-30-
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
Section 6.4. Financial Statements.................................................................................-31-
Section 6.5. No Material Changes..................................................................................-31-
Section 6.6. Franchises, Patents, Copyrights, Etc.................................................................-31-
Section 6.7. Litigation...........................................................................................-31-
Section 6.8. No Materially Adverse Contracts, Etc.................................................................-32-
Section 6.9. Compliance with Other Instruments, Laws, Etc.........................................................-32-
Section 6.10. Tax Status..........................................................................................-32-
Section 6.11. No Event of Default.................................................................................-32-
Section 6.12. Holding Company and Investment Company Acts.........................................................-32-
Section 6.13. Absence of U.C.C. Financing Statements, Etc.........................................................-33-
Section 6.14. Certain Transactions................................................................................-33-
Section 6.15. Employee Benefit Plans..............................................................................-33-
Section 6.16. Regulations U and X.................................................................................-33-
Section 6.17. Environmental Compliance............................................................................-34-
Section 6.18. Subsidiaries........................................................................................-35-
Section 6.19. Loan Documents and the Guarantors...................................................................-35-
Section 6.20. Property............................................................................................-36-
Section 6.21. Brokers.............................................................................................-36-
Section 6.22. Other Debt..........................................................................................-36-
Section 6.23. Solvency............................................................................................-36-
Section 6.24. The Partners and the Guarantors.....................................................................-37-
Section 7. AFFIRMATIVE COVENANTS OF THE BORROWER...........................................................................-37-
Section 7.1. Punctual Payment.....................................................................................-37-
Section 7.2. Maintenance of Office................................................................................-37-
Section 7.3. Records and Accounts.................................................................................-37-
Section 7.4. Financial Statements, Certificates and Information...................................................-37-
Section 7.5. Notices..............................................................................................-40-
Section 7.6. Existence; Maintenance of Properties.................................................................-41-
Section 7.7. Insurance............................................................................................-42-
Section 7.8. Taxes................................................................................................-42-
Section 7.9. Inspection of Properties and Books...................................................................-42-
Section 7.10. Compliance with Laws, Contracts, Licenses, and Permits..............................................-42-
Section 7.11. Use of Proceeds.....................................................................................-43-
Section 7.12. Further Assurances..................................................................................-43-
Section 7.13. Management; Business Operations.....................................................................-43-
Section 7.14. Unencumbered Operating Properties...................................................................-43-
Section 7.15. Limiting Agreements.................................................................................-44-
Section 7.16. Distributions of Income to the Borrower.............................................................-44-
Section 7.17. More Restrictive Agreements.........................................................................-45-
Section 7.18. Additional Guarantors...............................................................................-45-
Section 8. CERTAIN NEGATIVE COVENANTS OF THE BORROWER......................................................................-46-
Section 8.1. Restrictions on Indebtedness.........................................................................-46-
Section 8.2. Restrictions on Liens, Etc...........................................................................-47-
</TABLE>
<PAGE> 4
<TABLE>
<S> <C>
Section 8.3. Restrictions on Investments..........................................................................-48-
Section 8.4. Merger, Consolidation................................................................................-50-
Section 8.5. Sale and Leaseback...................................................................................-50-
Section 8.6. Compliance with Environmental Laws...................................................................-50-
Section 8.7. Distributions........................................................................................-51-
Section 8.8. Asset Sales..........................................................................................-52-
Section 8.9. Development Activity.................................................................................-52-
Section 8.10. Sources of Capital..................................................................................-53-
Section 8.11. Restriction on Prepayment of Indebtedness...........................................................-53-
Section 8.12. Interest in Guarantors.............................................................................-53-
Section 9. FINANCIAL COVENANTS OF THE BORROWER.............................................................................-53-
Section 9.1. Borrowing Base Covenant of the Borrower..............................................................-53-
Section 9.2. Liabilities to Assets Ratio..........................................................................-53-
Section 9.3. Interest Coverage....................................................................................-53-
Section 9.4. Fixed Charge Coverage................................................................................-54-
Section 9.5. Shareholders' Equity.................................................................................-54-
Section 9.6. Real Estate Assets...................................................................................-54-
Section 10. CLOSING CONDITIONS.............................................................................................-54-
Section 10.1. Loan Documents......................................................................................-54-
Section 10.2. Certified Copies of Organizational Documents........................................................-54-
Section 10.3. Bylaws; Resolutions.................................................................................-55-
Section 10.4. Incumbency Certificate; Authorized Signers..........................................................-55-
Section 10.5. Opinion of Counsel..................................................................................-55-
Section 10.6. Payment of Fees.....................................................................................-55-
Section 10.7. Performance; No Default.............................................................................-55-
Section 10.8. Representations and Warranties......................................................................-55-
Section 10.9. Proceedings and Documents...........................................................................-55-
Section 10.10. Compliance Certificate.............................................................................-56-
Section 10.11. Other..............................................................................................-56-
Section 11. CONDITIONS TO ALL BORROWINGS....................................................................................-56-
Section 11.1. Prior Conditions Satisfied..........................................................................-56-
Section 11.2. Representations True; No Default....................................................................-56-
Section 11.3. No Legal Impediment.................................................................................-56-
Section 11.4. Governmental Regulation.............................................................................-56-
Section 11.5. Proceedings and Documents...........................................................................-56-
Section 11.6. Borrowing Documents.................................................................................-57-
Section 12. EVENTS OF DEFAULT; ACCELERATION; ETC. ...............................................................-57-
Section 12.1. Events of Default and Acceleration..................................................................-57-
Section 12.2. Termination of Commitments..........................................................................-60-
Section 12.3. Remedies............................................................................................-60-
Section 12.4. Distribution of Proceeds............................................................................-61-
Section 13. SETOFF.........................................................................................................-61-
</TABLE>
<PAGE> 5
<TABLE>
<S> <C>
Section 14. THE AGENT.......................................................................................................-62-
Section 14.1. Authorization.......................................................................................-62-
Section 14.2. Employees and Agents................................................................................-62-
Section 14.3. No Liability........................................................................................-62-
Section 14.4. No Representations..................................................................................-63-
Section 14.5. Payments............................................................................................-63-
Section 14.6. Holders of Notes....................................................................................-64-
Section 14.7. Indemnity...........................................................................................-64-
Section 14.8. Agent as Bank.......................................................................................-64-
Section 14.9. Resignation.........................................................................................-64-
Section 14.10. Duties in the Case of Enforcement..................................................................-65-
Section 15. EXPENSES.......................................................................................................-65-
Section 16. INDEMNIFICATION................................................................................................-66-
Section 17. SURVIVAL OF COVENANTS, ETC.....................................................................................-67-
Section 18. ASSIGNMENT AND PARTICIPATION...................................................................................-67-
Section 18.1. Conditions to Assignment by Banks...................................................................-67-
Section 18.2. Register............................................................................................-68-
Section 18.3. New Notes...........................................................................................-68-
Section 18.4. Participations......................................................................................-68-
Section 18.5. Pledge by Bank......................................................................................-69-
Section 18.6. No Assignment by Borrower...........................................................................-69-
Section 18.7. Disclosure..........................................................................................-69-
Section 19. NOTICES........................................................................................................-69-
Section 20. RELATIONSHIP...................................................................................................-70-
Section 21. GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE.............................................................-70-
Section 22. HEADINGS.......................................................................................................-70-
Section 23. COUNTERPARTS...................................................................................................-71-
Section 24. ENTIRE AGREEMENT, ETC..........................................................................................-71-
Section 25. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS.................................................................-71-
Section 26. DEALINGS WITH THE BORROWER.....................................................................................-71-
Section 27. CONSENTS, AMENDMENTS, WAIVERS, ETC.............................................................................-72-
Section 28. SEVERABILITY...................................................................................................-72-
</TABLE>
<PAGE> 6
<TABLE>
<S> <C>
Section 29. TIME OF THE ESSENCE............................................................................................-73-
Section 30. NO UNWRITTEN AGREEMENTS........................................................................................-73-
</TABLE>
LIST OF EXHIBITS:
EXHIBIT A - Form of Revolving Credit Note
EXHIBIT B - Form of Swing Loan Note
EXHIBIT C - Form of Request for Loan
EXHIBIT D - Form of Compliance Certificate
LIST OF SCHEDULES:
SCHEDULE 1 - Banks and Commitments
SCHEDULE 1.1 - Initial Unencumbered Operating Properties
SCHEDULE 2 - Example of Calculation of Debt Service Coverage Amount
SCHEDULE 6.17 - Environmental Matters
SCHEDULE 6.18 - Subsidiaries of the Borrower and the Guarantors
SCHEDULE 8.1(h) - Existing Indebtedness
<PAGE> 7
FIRST AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIS FIRST AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT is made as of
the 31st day of March, 1998 by and among EXCEL REALTY TRUST, INC. (the
"Borrower"), a Maryland corporation having its principal place of business at
16955 Via Del Campo, Suite 110, San Diego, California 92127, BANKBOSTON, N.A., a
national bank organized under the laws of the United States of America
("BankBoston"), WELLS FARGO BANK, N.A. ("Wells Fargo"), DRESDNER BANK AG NEW
YORK AND GRAND CAYMAN BRANCHES ("Dresdner"), U. S. BANK NATIONAL ASSOCIATION,
formerly known as and doing business as First Bank National Association ("U.S.
Bank"), THE FIRST NATIONAL BANK OF CHICAGO ("First Chicago"), KEYBANK NATIONAL
ASSOCIATION ("KeyBank") and PNC BANK, NATIONAL ASSOCIATION ("PNC") and the other
lending institutions which may become parties hereto pursuant to Section 18
(collectively, BankBoston (except when acting as the Agent), Wells Fargo,
Dresdner, U.S. Bank, First Chicago, KeyBank, PNC, and each other lending
institution which may become a party hereto shall be referred to as the "Banks,"
and individually as a "Bank"), and BANKBOSTON, N.A., as Agent for the Banks (the
"Agent").
RECITALS.
WHEREAS, Borrower, Agent and BankBoston entered into that certain
Revolving Credit Agreement dated as of June 12, 1997 (the "Original Credit
Agreement"); and
WHEREAS, Borrower has requested that Agent and the Banks increase the
"Total Commitment", as defined under the Original Credit Agreement, from
$150,000,000.00 to $250,000,000.00; and
WHEREAS, as a condition to such modification, Agent and the Banks have
required that Borrower amend and restate the Original Credit Agreement in its
entirety;
NOW, THEREFORE, in consideration of the recitals herein and the mutual
covenants contained herein, the parties hereto hereby covenant and agree as
follows:
Section 1. DEFINITIONS AND RULES OF INTERPRETATION.
Section 1.1. Definitions. The following terms shall have the meanings
set forth in this Section l or elsewhere in the provisions of this Agreement
referred to below:
Additional Guarantor. See Section 7.18.
<PAGE> 8
Affiliates. An Affiliate, as applied to any Person, shall mean any other
Person directly or indirectly controlling, controlled by, or under common
control with, that Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling", "controlled by"
and "under common control with"), as applied to any Person, means (a) the
possession, directly or indirectly, of the power to vote ten percent (10%) or
more of the stock, shares, voting trust certificates, beneficial interest,
partnership interests, member interests or other interests having voting power
for the election of directors of such Person or otherwise to direct or cause the
direction of the management and policies of that Person, whether through the
ownership of voting securities or by contract or otherwise, or (b) the ownership
of (i) a general partnership interest, (ii) a managing member's interest in a
limited liability company or (iii) a limited partnership interest or preferred
stock (or other ownership interest) representing ten percent (10%) or more of
the outstanding limited partnership interests, preferred stock or other
ownership interests of such Person.
Agent. BankBoston, N.A. acting as agent for the Banks, its successors
and assigns.
Agent's Head Office. The Agent's head office located at 100 Federal
Street, Boston, Massachusetts 02110, or at such other location as the Agent may
designate from time to time by notice to the Borrower and the Banks.
Agent's Special Counsel. Long Aldridge & Norman LLP or such other
counsel as may be approved by the Agent.
Agreement. This Revolving Credit Agreement, including the Schedules and
Exhibits hereto.
Agreement Regarding Fees. The Agreement Regarding Fees dated of even
date herewith between the Borrower and BKB.
Applicable Margin. On any date that the Implied Rating issued from time
to time by either of the Rating Agencies for the Borrower is an Investment Grade
Rating, the applicable margin set forth below based on the higher of the Implied
Ratings issued by either of the Rating Agencies and the type of the Loan:
<TABLE>
<CAPTION>
Rating Base Rate Loans LIBOR Rate Loans
------ --------------- ----------------
<S> <C> <C>
A-/A3 or better 0% 0.95%
BBB+/Baa1 0% 1.00%
BBB/Baa2 0% 1.10%
BBB-/Baa3 0.25% 1.20%
</TABLE>
-2-
<PAGE> 9
provided, however, that on any date the higher of the Implied Ratings for the
Borrower is not an Investment Grade Rating, or the Borrower has not obtained a
rating from either of the Rating Agencies, the Applicable Margin for Base Rate
Loans shall be 0.25% and the Applicable Margin for LIBOR Rate Loans shall be
1.35%. In the event of any change in an Implied Rating of the Borrower by the
Rating Agencies, or if the Borrower's Implied Rating shall cease at any time to
be an Investment Grade Rating by the Rating Agencies (but subject to the
provisions within the definition of the term "Investment Grade Rating"), such
change shall effect a change in the Applicable Margin on the first Business Day
after the Rating Notice Date. It is the intention of the parties that if the
Borrower shall only obtain an Investment Grade Rating from one of the Rating
Agencies without seeking an Investment Grade Rating from the other of the Rating
Agencies, the Borrower shall be entitled to the benefit of the rate reductions
described above; provided that if the Borrower shall have obtained an Investment
Grade Rating from both of the Rating Agencies, the higher of the two ratings (or
the loss of the Investment Grade Rating from the Rating Agencies thereafter),
shall control.
Asset Value. The Asset Value of the Unencumbered Operating Properties
shall be an amount equal to (a) the sum of (i) the aggregate Operating Cash Flow
from the Unencumbered Operating Properties for the preceding four (4) fiscal
quarters minus (ii) the aggregate Capital Improvement Reserve for the
Unencumbered Operating Properties, divided by (b) 0.10, except that the value of
certain of the initial Unencumbered Operating Properties shall be as set forth
on Schedule 1.1 hereto. In the event that the Borrower or a Guarantor shall not
have owned an Unencumbered Operating Property for the previous four fiscal
quarters, then for the purposes of performing such calculation, the Operating
Cash Flow with respect to such property shall be annualized in such manner as
the Agent shall reasonably determine.
Balance Sheet Date. December 31, 1997.
Banks. BKB, the other lending institutions party to this Agreement, and
any other Person who becomes an assignee of any rights of a Bank pursuant to
Section 18 (but not including any Participant, as defined in Section 18).
Base Rate. The higher of (a) annual rate of interest announced from time
to time by Agent at Agent's Head Office as its "base rate", and (b) one half of
one percent (0.5%) above the Federal Funds Effective Rate (rounded upwards, if
necessary, to the next one-eighth of one percent). Any change in the rate of
interest payable hereunder resulting from a change in the Base Rate shall become
effective as of the opening of business on the day on which such change in the
Base Rate becomes effective.
Base Rate Loans. Those Loans bearing interest calculated by reference to
the Base Rate.
BKB. BankBoston, N.A.
Borrower. As defined in the preamble hereto.
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Borrowing Base. The Borrowing Base shall be the amount which is the
lesser of (a) the maximum amount which, when added to the total outstanding
balance of all unsecured Indebtedness of the Borrower and its Subsidiaries
(including the Loans), would not cause the Asset Value of the Unencumbered
Operating Properties to be less than one hundred fifty percent (150%) of the
total outstanding balance of all unsecured Indebtedness of the Borrower and its
Subsidiaries (including the Loans) and (b) the maximum amount which, when added
to the total outstanding balance of all unsecured Indebtedness of the Borrower
and its Subsidiaries (including the Loans), would not exceed the Debt Service
Coverage Amount for the Unencumbered Operating Properties.
Business Day. Any day on which banking institutions located in the same
city and State as Agent's Head Office are located and are open for the
transaction of banking business and, in the case of LIBOR Rate Loans, which also
is a LIBOR Business Day.
Capital Improvement Reserve. With respect to an Unencumbered Operating
Property or any other improved Real Estate, a reserve in the amount of ten cents
($0.10) per annum multiplied by the average Net Rentable Area contained therein.
Capitalized Lease. A lease under which a Person is the lessee or
obligor, the discounted future rental payment obligations under which are
required to be capitalized on the balance sheet of the lessee or obligor in
accordance with generally accepted accounting principles.
CERCLA. See Section 6.17(a).
Closing Date. The first date on which all of the conditions set forth in
Section 10 and Section 11 have been satisfied.
Code. The Internal Revenue Code of 1986, as amended.
Commitment. With respect to each Bank, the amount set forth on Schedule
1 hereto as the amount of such Bank's Commitment to make or maintain Loans
(other than Swing Loans) to the Borrower, as the same may be changed from time
to time in accordance with the terms of this Agreement.
Commitment Percentage. With respect to each Bank, the percentage set
forth on Schedule 1 hereto as such Bank's percentage of the aggregate
Commitments of all of the Banks.
Compliance Certificate. See Section 7.4(c).
Consolidated or combined. With reference to any term defined herein,
that term as applied to the accounts of a Person and its Subsidiaries,
consolidated or combined in accordance with generally accepted accounting
principles.
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Consolidated Operating Cash Flow. With respect to any period of a
Person, an amount equal to the Operating Cash Flow of such Person and its
Subsidiaries for such period consolidated in accordance with generally accepted
accounting principles.
Consolidated Total Assets. All assets of a Person and its Subsidiaries
determined on a consolidated basis in accordance with generally accepted
accounting principles; provided that all real estate assets shall be valued as
hereinafter provided. The assets of a Person and its Subsidiaries on the
consolidated financial statements of such Person and its Subsidiaries shall be
adjusted to reflect such Person's allocable share of such asset, for the
relevant period or as of the date of determination, taking into account (a) the
relative proportion of each such item derived from assets directly owned by such
Person and from assets owned by its Subsidiaries, and (b) such Person's
respective ownership interest in its Subsidiaries. The value of all real estate
assets shall be an amount equal to (i) the sum of (A) the aggregate Operating
Cash Flow from such Real Estate for the preceding four (4) fiscal quarters minus
(B) the aggregate Capital Improvement Reserve for all of the Real Estate of such
Person and its Subsidiaries, divided by (ii) 0.10.
Consolidated Total Liabilities. All liabilities of a Person and its
Subsidiaries determined on a consolidated basis in accordance with generally
accepted accounting principles and all Indebtedness of such Person and its
Subsidiaries, whether or not so classified.
Construction Loan Guaranties. The maximum principal amount of the
Indebtedness of any Person for which the Borrower or any Subsidiary of Borrower
has guaranteed or otherwise become contingently liable if any material portion
of the proceeds of such Indebtedness is to be used to finance costs of
construction, acquisition of land for development or other development costs.
Conversion Request. A notice given by the Borrower to the Agent of its
election to convert or continue a Loan in accordance with Section 4.1.
Debt Offering. The issuance and sale by the Borrower or any Guarantor of
any debt securities of the Borrower or such Guarantor.
Debt Service. For any period, the sum of all interest (including
capitalized interest) and mandatory or scheduled principal payments due and
payable during such period excluding any balloon payments due upon maturity of
any indebtedness.
Debt Service Coverage Amount. At any time determined by Agent, an amount
equal to the maximum principal loan amount which, when bearing interest at a
rate per annum equal to the then-current annual yield on ten (10) year
obligations issued by the United States Treasury most recently prior to the date
of determination plus two and one-quarter percent (2.25%) and payable based on a
twenty-five year mortgage style amortization schedule (expressed as a
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mortgage constant percentage), could be paid by the monthly principal and
interest payment amount resulting from dividing (x) the quotient obtained by
dividing an amount equal to (i) the sum of the aggregate Operating Cash Flow
from the Unencumbered Operating Properties for the preceding four fiscal
quarters, minus the Capital Improvement Reserve for the Unencumbered Operating
Properties, by (ii) 1.50, by (y) 12. An example of the calculation of the Debt
Service Coverage Amount is set forth in Schedule 2 attached hereto. In the event
that the Borrower or a Guarantor shall have owned a property within the
Unencumbered Operating Properties for less than four consecutive fiscal
quarters, then for the purposes of performing such calculation, the Operating
Cash Flow with respect to such property shall be annualized in such manner as
the Agent shall reasonably determine.
Default. See Section 12.1.
Distribution. With respect to any Person, the declaration or payment of
any cash, cash flow, dividend or distribution on or in respect of any shares of
any class of stock or other beneficial interest of a Person, other than
dividends or distributions payable solely in equity securities of such Person;
the purchase, redemption, exchange or other retirement of any shares of any
class of stock or other beneficial interest of a Person, directly or indirectly
through a Subsidiary of such Person or otherwise; the return of capital by a
Person to its shareholders or partners as such; or any other distribution on or
in respect of any shares of any class of stock or other beneficial interest of a
Person.
Dollars or $. Dollars in lawful currency of the United States of
America.
Domestic Lending Office. Initially, the office of each Bank designated
as such in Schedule 1 hereto; thereafter, such other office of such Bank, if
any, located within the United States that will be making or maintaining Base
Rate Loans.
Drawdown Date. The date on which any Loan is made or is to be made, and
the date on which any Loan which is made prior to the Maturity Date is converted
or combined in accordance with Section 4.1.
Employee Benefit Plan. Any employee benefit plan within the meaning of
Section 3(3) of ERISA maintained or contributed to by the Borrower or any ERISA
Affiliate, other than a Multiemployer Plan.
Environmental Laws. See Section 6.17(a).
Equity Offering. The issuance and sale by the Borrower or any Guarantor
of any equity securities of the Borrower or such Guarantor.
ERISA. The Employee Retirement Income Security Act of 1974, as amended
and in effect from time to time and any rules and regulations promulgated
pursuant thereto.
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ERISA Affiliate. Any Person which is treated as a single employer with
the Borrower under Section 414 of the Code.
ERISA Reportable Event. A reportable event with respect to a Guaranteed
Pension Plan within the meaning of Section 4043 of ERISA and the regulations
promulgated thereunder as to which the requirement of notice has not been
waived.
Eurocurrency Reserve Rate. Relative to any Interest Period for LIBOR
Rate Loans made by any Bank, the reserve percentage (expressed as a decimal)
equal to the actual aggregate reserve requirements (including all basic,
emergency, supplemental, marginal and other reserves and taking into account any
transactional adjustments or other scheduled changes in reserve requirements)
announced within Agent as the reserve percentage applicable to Agent as
specified under regulations issued from time to time by the Federal Reserve
Board. The Eurocurrency Reserve Rate shall be based on Regulation D of the
Federal Reserve Board or other regulations from time to time in effect
concerning reserves for "Eurocurrency Liabilities" from related institutions as
though Agent were in a net borrowing position. The Eurocurrency Reserve Rate
shall be adjusted automatically on and as of the effective date of any change in
the Eurocurrency Reserve Rate.
Event of Default. See Section 12.1.
Federal Funds Effective Rate. For any day, the rate per annum 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, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average of the
quotations for such day on such transactions received by the Agent from three
Federal funds brokers of recognized standing selected by the Agent.
Foreign Properties. Real Estate which is not located within the
contiguous 48 states of the continental United States.
Funds from Operations. With respect to any Person for any fiscal period,
the Net Income (or Deficit) of such Person computed in accordance with generally
accepted accounting principles, excluding financing costs and gains (or losses)
from debt restructuring and sales of property, plus depreciation and
amortization and other non-cash items.
Generally accepted accounting principles. Principles that are (a)
consistent with the principles promulgated or adopted by the Financial
Accounting Standards Board and its predecessors, as in effect from time to time
and (b) consistently applied with past financial statements of the Person
adopting the same principles; provided that a certified public accountant would,
insofar as the use of such accounting principles is pertinent, be in a position
to deliver an unqualified opinion (other than a qualification regarding changes
in generally accepted
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<PAGE> 14
accounting principles) as to financial statements in which such principles have
been properly applied.
Guaranteed Pension Plan. Any employee pension benefit plan within the
meaning of Section 3(2) of ERISA maintained or contributed to by the Borrower or
any ERISA Affiliate the benefits of which are guaranteed on termination in full
or in part by the PBGC pursuant to Title IV of ERISA, other than a Multiemployer
Plan.
Guarantors. Collectively, each of the entities listed on Schedule 3
hereto and each Additional Guarantor.
Guaranty. Collectively, the Unconditional Guaranty of Payment and
Performance dated of even date herewith made by the Guarantors in favor of Agent
and the Banks, and each Unconditional Guaranty of Payment and Performance made
by each Additional Guarantor in favor of Agent and the Banks, as the same may be
modified or amended, such Guaranty to be in form and substance satisfactory to
the Agent.
Hazardous Substances. See Section 6.17(b).
Implied Rating. With respect to a Person, the most recent rating issued
from time to time by either of the Rating Agencies as is applicable to such
Person's senior unsecured long-term debt, or if no such senior unsecured
long-term debt is outstanding, then the most recent rating issued from time to
time by either of the Rating Agencies as would hypothetically be applicable to
such Person's senior unsecured long-term debt (i.e., an implied rating).
Indebtedness. All obligations, contingent and otherwise, that in
accordance with generally accepted accounting principles should be classified
upon the obligor's balance sheet as liabilities, or to which reference should be
made by footnotes thereto, including in any event and whether or not so
classified: (a) all debt and similar monetary obligations, whether direct or
indirect (including, without limitation, any obligations evidenced by bonds,
debentures, notes or similar debt instruments and all subordinated debt); (b)
all liabilities secured by any mortgage, pledge, security interest, lien, charge
or other encumbrance existing on property owned or acquired subject thereto,
whether or not the liability secured thereby shall have been assumed; (c) all
guarantees, endorsements and other contingent obligations whether direct or
indirect in respect of indebtedness of others (including Construction Loan
Guaranties), including any unconditional obligation to supply funds to or in any
manner to invest directly or indirectly in a Person other than in the ordinary
course of business, to purchase indebtedness, or to assure the owner of
indebtedness against loss through an agreement to purchase goods, supplies or
services for the purpose of enabling the debtor to make payment of the
indebtedness held by such owner, through indemnity or otherwise, and the
obligation to reimburse the issuer in respect of any letter of credit; (d) any
obligation as a lessee or obligor under a Capitalized Lease; (e) all obligations
with respect to letters of credit or similar instruments issued by a Person; and
(f) all indebtedness, obligations or other liabilities (other than interest
expense liability) under or with respect to (i)
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interest rate swap, collar, cap or similar agreements providing interest rate
protection and (ii) foreign currency exchange agreements. Notwithstanding the
foregoing, in the event that a Person has incurred Indebtedness with respect to
which another Person included within the consolidated financial statements of
the first Person is also liable (by reason of a guaranty or otherwise), such
Indebtedness shall only be counted once for the purposes of such consolidated
financial statements.
Interest Payment Date. As to each Loan, the first day of each calendar
month during the term of such Loan, and in addition with respect to each LIBOR
Rate Loan, the last day of the Interest Period relating thereto.
Interest Period. With respect to each LIBOR Rate Loan (a) initially, the
period commencing on the Drawdown Date of such Loan and ending one, two, three
or six months thereafter, and (b) thereafter, each period commencing on the day
following the last day of the next preceding Interest Period applicable to such
Loan and ending on the last day of one of the periods set forth above, as
selected by the Borrower in a Conversion Request; provided that all of the
foregoing provisions relating to Interest Periods are subject to the following:
(i) if any Interest Period with respect to a LIBOR Rate Loan
would otherwise end on a day that is not a LIBOR Business Day, that
Interest Period shall end and the next Interest Period shall commence on
the next preceding or succeeding LIBOR Business Day as determined
conclusively by the Reference Bank in accordance with the then current
bank practice in the applicable LIBOR interbank market;
(ii) if the Borrower shall fail to give notice as provided in
Section 4.1, the Borrower shall be deemed to have requested a conversion
of the affected LIBOR Rate Loan to a Base Rate Loan on the last day of
the then current Interest Period with respect thereto; and
(iii) no Interest Period relating to any LIBOR Rate Loan shall
extend beyond the Maturity Date.
Investment Grade Rating. With respect to any Person, an Implied Rating
equal to or more favorable than BBB- with respect to a rating issued by Standard
& Poors, a Division of The McGraw-Hill Companies, or Baa3 with respect to a
rating issued by Moody's Investors Service, Inc. If, at any time after a Person
obtains an Investment Grade Rating, (a) no Implied Rating for such Person's
senior unsecured long-term debt shall have been issued or confirmed in writing
by either of the Rating Agencies within the previous 365 days, or (b) the rating
system of either of the Rating Agencies (as opposed to the rating of a Person)
shall change, or (c) either of the Rating Agencies shall no longer perform the
functions of a securities rating agency, then the Borrower and the Agent shall
promptly negotiate in good faith to amend the reference to the specific ratings
in this definition for the determination of the Investment Grade Rating, and
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pending such amendment, the applicable rating in effect as of the date the event
described in this paragraph occurred shall continue to apply.
Investments. With respect to any Person, all shares of capital stock,
evidences of Indebtedness and other securities issued by any other Person, all
loans, advances, or extensions of credit to, or contributions to the capital of,
any other Person and all purchases of the securities or business or integral
part of the business of any other Person, all interests in real property, and
all other investments; provided, however, that the term "Investment" shall not
include (i) equipment, inventory and other tangible personal property acquired
in the ordinary course of business, or (ii) current trade and customer accounts
receivable for services rendered in the ordinary course of business and payable
in accordance with customary trade terms. In determining the aggregate amount of
Investments outstanding at any particular time: (a) there shall be included as
an Investment all interest accrued with respect to Indebtedness constituting an
Investment unless and until such interest is paid; (b) there shall be deducted
in respect of each such Investment any amount received as a return of capital
(but only by repurchase, redemption, retirement, repayment, liquidating dividend
or liquidating distribution); (c) there shall not be deducted or increased in
respect of any Investment any amounts received as earnings on such Investment,
whether as dividends, interest or otherwise, except that accrued interest
included as provided in the foregoing clause (a) may be deducted when paid; and
(d) there shall not be deducted from the aggregate amount of Investments any
decrease in the value thereof.
LIBOR Business Day. Any day on which commercial banks are open for
international business (including dealings in Dollar deposits) in the London
interbank market.
LIBOR Lending Office. Initially, the office of each Bank designated as
such in Schedule 1 hereto; thereafter, such other office of such Bank, if any,
that shall be making or maintaining LIBOR Rate Loans.
LIBOR Rate. For any Interest Period with respect to a LIBOR Rate Loan,
the rate per annum equal to the quotient (rounded upwards to the nearest 1/16 of
one percent) of (a) the rate per annum as determined by the Reference Bank's
LIBOR Lending Office to be the rate at which Dollar deposits in immediately
available funds are offered to Reference Bank by leading banks in the Eurodollar
interbank market (based on Telerate quotes, page 3750, or such other page as
containing the same information as presently on page 3750, or if such
information is not available, in such other manner as Reference Bank shall
determine) two (2) LIBOR Business Days prior to the beginning of such Interest
Period for delivery on the first day of such Interest Period for the number of
days comprised therein and in an amount comparable to the amount of the LIBOR
Rate Loan to which such Interest Period applies, divided by (b) a number equal
to 1.00 minus the Eurocurrency Reserve Rate.
LIBOR Rate Loans. Loans bearing interest calculated by reference to a
LIBOR Rate.
Liens. See Section 8.2.
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Loan Documents. This Agreement, the Notes, the Guaranty and all other
documents, instruments or agreements now or hereafter executed or delivered by
or on behalf of the Borrower or the Guarantor in connection with the Loans.
Loan Request. See Section 2.6.
Loans. The aggregate Loans (including Swing Loans) to be made by the
Banks hereunder.
Majority Banks. As of any date, the Bank or Banks whose aggregate
Commitment Percentage is equal to or greater than the required percentage, as
determined by the Banks, required to approve such matter, as disclosed by the
Agent to the Borrower from time to time.
Maturity Date. December 31, 1999 or such earlier date on which the Loans
shall become due and payable pursuant to the terms hereof.
Multiemployer Plan. Any multiemployer plan within the meaning of Section
3(37) of ERISA maintained or contributed to by the Borrower or any ERISA
Affiliate.
Net Income (or Loss). With respect to any Person (or any asset of any
Person) for any fiscal period, the net income (or loss) of such Person (or
attributable to such asset), after deduction of all expenses, taxes and other
proper charges, determined in accordance with generally accepted accounting
principles.
Net Rentable Area. With respect to any Real Estate, the floor area of
any buildings, structures or improvements available for leasing to tenants
determined in accordance with the Rent Roll for such Real Estate, the manner of
such determination to be consistent for all Real Estate unless otherwise
approved by the Agent.
Notes. Collectively the Revolving Credit Notes and the Swing Loan Note.
Notice. See Section 19.
Obligations. All indebtedness, obligations and liabilities of the
Borrower to any of the Banks and the Agent, individually or collectively, under
this Agreement or any of the other Loan Documents or in respect of any of the
Loans or the Notes, or other instruments at any time evidencing any of the
foregoing, whether existing on the date of this Agreement or arising or incurred
hereafter, direct or indirect, joint or several, absolute or contingent, matured
or unmatured, liquidated or unliquidated, secured or unsecured, arising by
contract, operation of law or otherwise.
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Operating Cash Flow. With respect to any Person (or any asset of any
Person) for any period, an amount equal to the sum of (a) the Net Income of such
Person (or attributable to such asset) for such period plus (b) depreciation and
amortization, interest expense, and any extraordinary or non-recurring losses
deducted in calculating such Net Income plus (c) any write down of the value of
an asset minus (d) any extraordinary or nonrecurring gains included in
calculating such Net Income plus (e) losses on sales of real property of such
Person deducted in calculating such Net Income minus (f) gains on sales of real
property of such Person included in calculating such Net Income, all as
determined in accordance with generally accepted accounting principles.
Opportunity Properties. An Opportunity Property shall mean a parcel of
Real Estate owned by the Borrower, a Guarantor or any of their respective
Subsidiaries, or in which such Person owns an interest, which at the time such
interest is acquired (a) is used for purposes other than Retail Uses, or (b)
which has an occupancy rate of less than fifty percent (50%) based on tenants in
possession and paying rent and which have not been in default for more than
thirty (30) days, or (c) which is deemed by the Agent in its reasonable judgment
to have been acquired by such Person as an opportunity to refurbish, renovate or
lease a property which is not of institutional quality in order to obtain an
above-normal return on its investment.
Outstanding. With respect to the Loans, the aggregate unpaid principal
thereof as of any date of determination.
PBGC. The Pension Benefit Guaranty Corporation created by Section 4002
of ERISA and any successor entity or entities having similar responsibilities.
Permitted Liens. Liens, security interests and other encumbrances
permitted by Section 8.2.
Person. Any individual, corporation, partnership, trust, limited
liability company, unincorporated association, business, or other legal entity,
and any government or any governmental agency or political subdivision thereof.
Preferred Distributions. For any period, the amount of any and all
Distributions due and payable to the holders of any form of preferred stock
(whether perpetual, convertible or otherwise) or other ownership or beneficial
interest in the Borrower, a Guarantor or any of their respective Subsidiaries
that entitles the holders thereof to preferential payment or distribution
priority with respect to dividends, assets or other payments over the holders of
any other stock or other ownership or beneficial interest in such Person.
Prospectus. The 10K of the Borrower dated December 31, 1996 and filed
with the SEC.
Rating Agencies. Standard & Poor's, a Division of The McGraw-Hill
Companies, and Moody's Investors Service, Inc.
Rating Notice. See Section 7.4(g).
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Rating Notice Date. The earlier of (a) the date a Rating Notice is
received by the Agent, or (b) the date the Agent, having received actual notice
of a change by one of the Rating Agencies of its Implied Rating, sends notice to
the Borrower of such change, provided that nothing contained herein shall imply
any obligation of the Agent to monitor such rating changes.
Real Estate. All real property at any time owned or leased (as lessee or
sublessee) by the Borrower, a Guarantor or any of their respective Subsidiaries.
Record. The grid attached to any Note, or the continuation of such grid,
or any other similar record, including computer records, maintained by any Bank
with respect to any Loan referred to in such Note.
Reference Bank. The Agent.
Register. See Section 18.2.
REIT Status. The status of the Borrower as a real estate investment
trust as defined in Section 856(a) of the Code.
Release. See Section 6.17(c)(iii).
Rent Roll. A report prepared by the Borrower showing for any Real
Estate, its location, Net Rentable area, occupancy status, rent and other
information in substantially the form presented to the Banks prior to the date
hereof or in such other form as may have been approved by the Agent, such
approval not to be unreasonably withheld.
Retail Uses. Stores engaged in the sale of products directly to
consumers and shopping centers occupied primarily by such stores but which may
also include Service Retail Uses, movie cinemas, banks and office uses of the
type commonly located in shopping centers.
Revolving Credit Notes. See Section 2.4.
SEC. The federal Securities and Exchange Commission.
Service Retail Uses. Restaurants, health clubs, child care facilities,
automotive repair facilities, and other similar types of uses which Agent may
agree to designate as Service Retail Uses.
Shareholders' Equity. At any date, an amount equal to Consolidated Total
Assets of the Borrower minus Consolidated Total Liabilities of the Borrower.
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Short-term Investments. Investments described in subsections (a) through
(g), inclusive, of Section 8.3. For all purposes of this Agreement and the other
Loan Documents, the value of Eligible Short-term Investments at any time shall
be the current market value thereof determined in a manner reasonably
satisfactory to the Agent.
State. A state of the United States of America.
Swing Loan. See Section 2.4A.
Swing Loan Bank. BKB, in its capacity as Swing Loan Bank.
Swing Loan Commitment. The sum of $10,000,000.00, as the same may be
changed from time to time in accordance with the terms of this Agreement.
Swing Loan Note. See Section 2.4A.
Subsidiary. Any corporation, association, partnership, trust, or other
business entity of which the designated parent shall at any time own directly or
indirectly through a Subsidiary or Subsidiaries at least a majority (by number
of votes or controlling interests) of the outstanding Voting Interests, and any
other entity the accounts of which are consolidated with the accounts of the
designated parent.
Test Period. See Section 9.3.
Total Commitment. The sum of the Commitments of the Banks, as in effect
from time to time.
Type. As to any Loan, its nature as a Base Rate Loan or a LIBOR Rate
Loan.
Under Development. Any Real Estate shall be considered under development
until such time as (a) a certificate of occupancy has been obtained, (b)
seventy-five percent (75%) of the net leasable area is leased and occupied, and
(iii) the gross revenue from the operation of such Real Estate shall have been
not less than the operating costs for three (3) consecutive months.
Unencumbered Operating Properties. Unencumbered Operating Properties
shall mean Real Estate which is owned one hundred percent (100%) in fee simple
by the Borrower (except as provided below) and which satisfies all of the
following conditions:
(a) each of the Unencumbered Operating Properties shall be free and
clear of all Liens other than the Liens permitted in Section 8.2(i), (iii) and
(v);
(b) to the best of the Borrower's knowledge and belief, none of the
Unencumbered Operating Properties shall have any material title, survey,
environmental or other defects that
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would give rise to a materially adverse effect as to the value, use of or
ability to sell or refinance such property;
(c) each of the Unencumbered Operating Properties shall consist
solely of Real Estate (i) which is located within the contiguous 48 states of
the continental United States, (ii) which is an income producing operating
property utilized principally for Retail Uses and which is not an Opportunity
Property, (iii) which contains improvements that are in operating condition and
available for occupancy, and (iv) with respect to which valid certificates of
occupancy or the equivalent for all buildings thereon have been issued and are
in full force and effect; and
(d) the Unencumbered Operating Properties shall in the aggregate
have a maximum single-tenant concentration of twenty percent (20%) measured as a
percentage of gross revenue (which revenue shall be determined based on the base
or minimum rental per square foot payable by each tenant with straight line
adjustments in rent in accordance with generally accepted accounting
principles), excluding all percentage rent, reimbursements or other pass-through
expenses).
Notwithstanding anything herein to the contrary, a Guarantor or Additional
Guarantor may own Unencumbered Operating Properties provided that the Asset
Value of the Unencumbered Operating Properties owned by the Borrower may not in
the aggregate be less than sixty percent (60%) of the total Asset Value of the
Unencumbered Operating Properties; provided, that each such property shall
otherwise satisfy the foregoing conditions applicable to Unencumbered Operating
Properties, each and every covenant contained in, and each and every warranty
and representation made in, this Agreement with respect to Real Estate, and as
and when the Borrower shall acquire any additional Real Estate which satisfies
the requirements in this Agreement for an Unencumbered Operating Property, the
Borrower shall promptly substitute such Real Estate for any Unencumbered
Operating Properties which are owned by any such Guarantor or Additional
Guarantor.
The initial Unencumbered Operating Properties are described on Schedule 1.1
hereto, and the initial Asset Value of certain of the initial Unencumbered
Operating Properties shall be as set forth on Schedule 1.1 hereto.
Voting Interests. Stock or similar ownership interests, of any class or
classes (however designated), the holders of which are at the time entitled, as
such holders, (a) to vote for the election of a majority of the directors (or
persons performing similar functions) of the corporation, association,
partnership, trust or other business entity involved, or (b) to control, manage,
or conduct the business of the corporation, partnership, association, trust or
other business entity involved.
Section 1.2. Rules of Interpretation.
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(a) A reference to any document or agreement shall include
such document or agreement as amended, modified or supplemented from time to
time in accordance with its terms and the terms of this Agreement.
(b) The singular includes the plural and the plural includes
the singular.
(c) A reference to any law includes any amendment or
modification to such law.
(d) A reference to any Person includes its permitted
successors and permitted assigns.
(e) Accounting terms not otherwise defined herein have the
meanings assigned to them by generally accepted accounting principles applied on
a consistent basis by the accounting entity to which they refer.
(f) The words "include", "includes" and "including" are not
limiting.
(g) The words "approval" and "approved", as the context so
determines, means an approval in writing given to the party seeking approval
after full and fair disclosure to the party giving approval of all material
facts necessary in order to determine whether approval should be granted.
(h) All terms not specifically defined herein or by
generally accepted accounting principles, which terms are defined in the Uniform
Commercial Code as in effect in the Commonwealth of Massachusetts, have the
meanings assigned to them therein.
(i) Reference to a particular "Section ", refers to that
section of this Agreement unless otherwise indicated.
(j) The words "herein", "hereof", "hereunder" and words of
like import shall refer to this Agreement as a whole and not to any particular
section or subdivision of this Agreement.
Section 2. THE REVOLVING CREDIT FACILITY
Section 2.1. Commitment to Lend. Subject to the terms and conditions set
forth in this Agreement, each of the Banks severally agrees to lend to the
Borrower, and the Borrower may borrow (and repay and reborrow) from time to time
between the Closing Date and the Maturity Date upon notice by the Borrower to
the Agent given in accordance with Section 2.6, such sums as are requested by
the Borrower for the purposes set forth in Section 7.11 up to the lesser of (a)
a maximum aggregate principal amount outstanding (after giving effect to all
amounts requested) at any one time equal to such Bank's Commitment and (b) such
Bank's Commitment Percentage of the Borrowing Base, provided, that, in all
events no Default or Event of Default shall have occurred and be continuing; and
provided, further, that the outstanding principal amount of the Loans
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(after giving effect to all amounts requested) shall not at any time exceed the
Total Commitment. The Loans (other than Swing Loans) shall be made pro rata in
accordance with each Bank's Commitment Percentage. Each request for a Loan
hereunder shall constitute a representation and warranty by the Borrower that
all of the conditions set forth in Section 10 and Section 11, in the case of the
initial Loan, and Section 11, in the case of all other Loans, have been
satisfied on the date of such request. No Bank shall have any obligation to make
Loans to the Borrower in the maximum aggregate principal amount outstanding of
more than the principal face amount of its Note.
Section 2.2. Facility Fee. The Borrower agrees to pay to the Agent for
the account of the Banks in accordance with their respective Commitment
Percentages a facility fee calculated at the rate per annum as set forth below
on the daily amount by which the Total Commitment exceeds the outstanding
principal amount of Loans during each calendar quarter or portion thereof
commencing on the date hereof and ending on the Maturity Date. The facility fee
shall be calculated for each day based on the ratio (expressed as a percentage)
of (a) the daily amount of the outstanding principal amount of the Loans during
such quarter to (b) the Total Commitment at the rate of 0.15%. The facility fee
shall be payable quarterly in arrears on the first day of each calendar quarter
for the immediately preceding calendar quarter or portion thereof, and on any
earlier date on which the Commitments shall be reduced or shall terminate as
provided in Section 2.3, with a final payment on the Maturity Date.
Section 2.3. Reduction and Termination of Commitment. The Borrower shall
have the right at any time and from time to time upon five Business Days' prior
written notice to the Agent to reduce by $10,000,000 or an integral multiple of
$1,000,000 in excess thereof (provided that in no event shall the Total
Commitment be reduced to an amount less than $100,000,000.00) or to terminate
entirely the unborrowed portion of the Commitments, whereupon the Commitments of
the Banks shall be reduced pro rata in accordance with their respective
Commitment Percentages of the amount specified in such notice or, as the case
may be, terminated, any such termination or reduction to be without penalty
(unless such termination or reduction requires repayment of a LIBOR Rate Loan);
provided, however, that no such termination or reduction shall be permitted if,
after giving effect thereto, the Outstanding Loans would exceed the Commitments
of the Banks as so terminated or reduced. In the event that as a result of the
reduction or termination of the Commitments, the Commitment of the Swing Loan
Bank shall be reduced to an amount less than the Swing Loan Commitment, the
Swing Loan Commitment shall automatically and without further action of the
parties be reduced to an equal amount. Promptly after receiving any notice of
the Borrower delivered pursuant to this Section 2.3, the Agent will notify the
Banks of the substance thereof. Upon the effective date of any such reduction or
termination, the Borrower shall pay to the Agent for the respective accounts of
the Banks the full amount of any facility fee under Section 2.2 then accrued on
the amount of the reduction. No reduction or termination of the Commitment or
Swing Loan Commitment may be reinstated.
Section 2.4. Notes. The Loans (other than Swing Loans) shall be
evidenced by separate promissory notes of the Borrower in substantially the form
of Exhibit A hereto (collectively, the "Revolving Credit Notes"), dated the date
of this Agreement and completed with appropriate
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insertions. One Revolving Credit Note shall be payable to the order of each Bank
in the principal face amount equal to such Bank's Commitment and shall be
payable as set forth below. The Borrower irrevocably authorizes each Bank to
make or cause to be made, at or about the time of the Drawdown Date of any Loan
(other than Swing Loans) or at the time of receipt of any payment of principal
thereof, an appropriate notation on such Bank's Record reflecting the making of
such Loan or (as the case may be) the receipt of such payment. The outstanding
amount of the Loans (other than Swing Loans) set forth on such Bank's Record
shall be prima facie evidence of the principal amount thereof owing and unpaid
to such Bank, but the failure to record, or any error in so recording, any such
amount on such Bank's Record shall not limit or otherwise affect the obligations
of the Borrower hereunder or under any Revolving Credit Note to make payments of
principal of or interest on any Revolving Credit Note when due.
Section 2.4A Swing Loan Commitments.
(a) Subject to the terms and conditions set forth in this
Agreement, and if necessary to meet the Borrower's funding deadlines, Swing Loan
Bank agrees to lend to the Borrower (the "Swing Loans"), and the Borrower may
borrow (and repay and reborrow) from time to time between the Closing Date and
the date which is seven (7) Business Days prior to the Maturity Date upon notice
by the Borrower to the Swing Loan Bank given in accordance with this Section
2.4A, such sums as are requested by the Borrower for the purposes set forth in
Section 7.11 in an aggregate principal amount at any one time outstanding not
exceeding the Swing Loan Commitment; provided that at no time shall the
aggregate principal balance of Swing Loans then outstanding, when added to the
Swing Loan Bank's Commitment Percentage of all other Outstanding Loans (after
giving effect to all amounts requested), exceed the lesser of (i) such Bank's
Commitment and (ii) such Bank's Commitment Percentage of the Borrowing Base,
provided, further, that in all events no Default or Event of Default shall have
occurred and be continuing; and provided, further, that the outstanding
principal amount of the Loans (after giving effect to all amounts requested)
shall not at any time exceed the Total Commitment. Swing Loans shall constitute
"Loans" for all purposes hereunder, but shall not be considered the utilization
of a Bank's Commitment. The funding of a Swing Loan hereunder shall constitute a
representation and warranty by the Borrower that all of the conditions set forth
in Section 10 and Section 11, in the case of the initial Swing Loan, and Section
11, in the case of all other Swing Loans, have been satisfied on the date of
such funding.
(b) The Swing Loans shall be evidenced by a separate
promissory note of the Borrower in substantially the form of Exhibit B hereto
(the "Swing Loan Note"), dated the date of this Agreement and completed with
appropriate insertions. The Swing Loan Note shall be payable to the order of the
Swing Loan Bank in the principal face amount equal to the Swing Loan Commitment
and shall be payable as set forth below. The Borrower irrevocably authorizes the
Swing Loan Bank to make or cause to be made, at or about the time of the
Drawdown Date of any Swing Loan or at the time of receipt of any payment of
principal thereof, an appropriate notation on the Swing Loan Bank's Record
reflecting the making of such Swing Loan or (as the case may be) the receipt of
such payment. The outstanding amount of the Swing Loans set forth
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on the Swing Loan Bank's Record shall be prima facia evidence of the principal
amount thereof owing and unpaid to the Swing Loan Bank, but the failure to
record, or any error in so recording, any such amount on the Swing Loan Bank's
Record shall not limit or otherwise affect the obligations of the Borrower
hereunder or under the Swing Loan Note to make payments of principal of or
interest on any Swing Loan Note when due.
(c) Each borrowing of Swing Loan shall be subject to the
limits for Base Rate Loans and LIBOR Rate Loans set forth in Section 2.6.
Borrower shall request a Swing Loan by delivering to the Swing Loan Bank a Loan
Request no later than 9:00 a.m. (Boston time) on the requested Drawdown Date
specifying the amount of the requested Swing Loan. The Loan Request shall also
contain the statements and certifications required by Section 2.6(i) and (ii).
Each such Loan Request shall be irrevocable and binding on the Borrower and
shall obligate the Borrower to accept such Swing Loan on the Drawdown Date.
Notwithstanding anything herein to the contrary, a Swing Loan shall either be a
Base Rate Loan or a LIBOR Rate Loan having an Interest Period of one month, and
in the event that the Borrower fails to specify whether it has selected a Base
Rate Loan or a LIBOR Rate Loan, the Borrower shall be deemed conclusively to
have selected a LIBOR Rate Loan with an Interest Period of one month.
Notwithstanding the foregoing, upon the date that the Banks shall be required to
fund the Loans pursuant to Section 2.4A(d) to refund such Swing Loan, the
interest rate shall be reset to a LIBOR Rate Loan with an Interest Period as
specified in the Loan Request given by the Borrower to the Agent in connection
with such Swing Loan, or if no Interest Period is specified, then as a Base Rate
Loan. The proceeds of the Swing Loan will be made available by the Swing Loan
Bank to the Borrower at the Agent's Head Office by crediting the account of the
Borrower at such office with such proceeds.
(d) The Swing Loan Bank shall within three (3) Business Days
after the Drawdown Date with respect to such Swing Loan, request each Bank,
including the Swing Loan Bank, to make a Loan pursuant to Section 2.1 in an
amount equal to such Bank's Commitment Percentage of the amount of the Swing
Loan outstanding on the date such notice is given. Borrower hereby irrevocably
authorizes and directs the Swing Loan Bank to so act on its behalf, and agrees
that any amount advanced to the Agent for the benefit of the Swing Loan Bank
pursuant to this Section 2.4A(d) shall be considered a Loan pursuant to Section
2.1. Unless any of the events described in paragraph (h), (i) or (j) of Section
12.1 shall have occurred (in which event the procedures of Section 2.4A(e) shall
apply), each Bank shall make the proceeds of its Loan available to the Swing
Loan Bank for the account of the Swing Loan Bank at the Agent's Head Office
prior to 12:00 noon (Boston time) in funds immediately available no later than
the third (3rd) Business Day after the date such notice is given just as if the
Banks were funding directly to the Borrower, so that thereafter such Obligations
shall be evidenced by the Revolving Credit Notes. The proceeds of such Loan
shall be immediately applied to repay the Swing Loans.
(e) If prior to the making of a Loan pursuant to Section
2.4A(d) by all of the Banks, one of the events described in Section 12.1(h), (i)
or (j) shall have occurred, each Bank will, on the date such Loan pursuant to
Section 2.4A(d) was to have been made, purchase an undivided participating
interest in the Swing Loan in an amount equal to its Commitment Percentage of
such Swing
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Loan. Each Bank will immediately transfer to the Swing Loan Bank in immediately
available funds the amount of its participation and upon receipt thereof the
Swing Loan Bank will deliver to such Bank a Swing Loan participation certificate
dated the date of receipt of such funds and in such amount.
(f) Whenever at any time after the Swing Loan Bank has
received from any Bank such Bank's participating interest in a Swing Loan, the
Swing Loan Bank receives any payment on account thereof, the Swing Loan Bank
will distribute to such Bank its participating interest in such amount
(appropriately adjusted in the case of interest payments to reflect the period
of time during which such Bank's participating interest was outstanding and
funded); provided, however, that in the event that such payment received by the
Swing Loan Bank is required to be returned, such Bank will return to the Swing
Loan Bank any portion thereof previously distributed by the Swing Loan Bank to
it.
(g) Each Bank's obligation to fund a Loan as provided in
Section 2.4A(d) or to purchase participating interests pursuant to Section
2.4A(e) shall be absolute and unconditional and shall not be affected by any
circumstance, including, without limitation, (i) any setoff, counterclaim,
recoupment, defense or other right which such Bank or the Borrower or Guarantors
may have against the Swing Loan Bank, the Borrower or Guarantors or anyone else
for any reason whatsoever; (ii) the occurrence or continuance of a Default or an
Event of Default; (iii) any adverse change in the condition (financial or
otherwise) of the Borrower or Guarantors or any of their respective
Subsidiaries; (iv) any breach of this Agreement or any of the other Loan
Documents by the Borrower or Guarantors or any Bank; or (v) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing. Any portions of a Swing Loan not so purchased or converted may be
treated by the Swing Loan Bank as a Loan which was not funded by the
non-purchasing Bank as contemplated by Section 2.7 and Section 12.4. Each Swing
Loan, once so sold or converted, shall cease to be a Swing Loan for the purposes
of this Agreement, but shall be a Loan made by each Bank under its Commitment.
Section 2.5. Interest on Loans
(a) Each Base Rate Loan shall bear interest for the period
commencing with the Drawdown Date thereof and ending on the date on which such
Base Rate Loan is repaid or converted to a LIBOR Rate Loan at the rate per annum
equal to the sum of the Applicable Margin plus the Base Rate.
(b) Each LIBOR Rate Loan shall bear interest for the period
commencing with the Drawdown Date thereof and ending on the last day of the
Interest Period with respect thereto at the rate per annum equal to the sum of
the Applicable Margin plus the LIBOR Rate determined for such Interest Period.
(c) The Borrower promises to pay interest on each Loan in
arrears on each Interest Payment Date with respect thereto.
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(d) Base Rate Loans and LIBOR Rate Loans may be converted to
Loans of the other Type as provided in Section 4.1.
Section 2.6. Requests for Loans. Except with respect to the initial Loan
on the Closing Date and Swing Loans, the Borrower (a) shall notify the Agent of
a potential request for a Loan as soon as possible, and (b) shall give to the
Agent written notice in the form of Exhibit C hereto (or telephonic notice
confirmed in writing in the form of Exhibit C hereto) of each Loan requested
hereunder (a "Loan Request") no less than one (1) Business Day prior to the
proposed Drawdown Date with respect to Base Rate Loans and three (3) Business
Days prior to the proposed Drawdown Date with respect to LIBOR Rate Loans. Each
such notice shall specify with respect to the requested Loan the proposed
principal amount, Drawdown Date, Interest Period (if applicable) and Type. Each
such notice shall also contain (i) a statement as to the purpose for which such
advance shall be used (which purpose shall be in accordance with the terms of
Section 7.11), and (ii) a certification by the chief financial or chief
accounting officer of the Borrower that the Borrower and the Guarantors are and
will be in compliance with all covenants under the Loan Documents after giving
effect to the making of such Loan. Promptly upon receipt of any such notice, the
Agent shall notify each of the Banks thereof. Except as provided in this Section
2.6, each such Loan Request shall be irrevocable and binding on the Borrower and
shall obligate the Borrower to accept the Loan requested from the Banks on the
proposed Drawdown Date, provided that, in addition to the Borrower's other
remedies against any Bank which fails to advance its proportionate share of a
requested Loan, such Loan Request may be revoked by the Borrower by notice
received by the Agent no later than the Drawdown Date if any Bank fails to
advance its proportionate share of the requested Loan in accordance with the
terms of this Agreement, provided further that the Borrower shall be liable in
accordance with the terms of this Agreement to any Bank which is prepared to
advance its proportionate share of the requested Loan for any costs, expenses or
damages incurred by such Bank as a result of the Borrower's election to revoke
such Loan Request. Nothing herein shall prevent the Borrower from seeking
recourse against any Bank that fails to advance its proportionate share of a
requested Loan as required by this Agreement. The Borrower may without cost or
penalty revoke a Loan Request by delivering notice thereof to each of the Banks
no later than three (3) Business Days prior to the Drawdown Date. Each Loan
Request shall be (a) for a Base Rate Loan in a minimum aggregate amount of
$1,000,000 or an integral multiple of $100,000 in excess thereof, or (b) for a
LIBOR Rate Loan in a minimum aggregate amount of $2,000,000 or an integral
multiple of $100,000 in excess thereof; provided, however, that there shall be
no more than six (6) LIBOR Rate Loans outstanding at any one time.
Section 2.7. Funds for Loans.
(a) Not later than 1:30 p.m. (Boston time) on the proposed
Drawdown Date of any Loans (other than Swing Loans), each of the Banks will make
available to the Agent, at the Agent's Head Office, in immediately available
funds, the amount of such Bank's Commitment Percentage of the amount of the
requested Loans which may be disbursed pursuant to Section 2.1.
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Upon receipt from each Bank of such amount, and upon receipt of the documents
required by Section 10 and Section 11 and the satisfaction of the other
conditions set forth therein, to the extent applicable, the Agent will make
available to the Borrower the aggregate amount of such Loans made available to
the Agent by the Banks by crediting such amount to the account of the Borrower
maintained at the Agent's Head Office. The failure or refusal of any Bank to
make available to the Agent at the aforesaid time and place on any Drawdown Date
the amount of its Commitment Percentage of the requested Loans shall not relieve
any other Bank from its several obligation hereunder to make available to the
Agent the amount of such other Bank's Commitment Percentage of any requested
Loans, including any additional Loans that may be requested subject to the terms
and conditions hereof to provide funds to replace those not advanced by the Bank
so failing or refusing, provided that the Borrower may by notice received by the
Agent no later than the Drawdown Date refuse to accept any Loan which is not
fully funded in accordance with the Borrower's Loan Request subject to the terms
of Section 2.6. In the event of any such failure or refusal, the Banks not so
failing or refusing shall be entitled to a priority position as against the Bank
or Banks so failing or refusing for such Loans as provided in Section 12.4.
(b) Unless Agent shall have been notified by any Bank prior
to the applicable Drawdown Date that such Bank will not make available to Agent
such Bank's pro rata share of a proposed Loan, Agent may in its discretion
assume that such Bank has made such Loan available to Agent in accordance with
the provisions of this Agreement and Agent may, if it chooses, in reliance upon
such assumption make such Loan available to Borrower, and such Bank shall be
liable to the Agent for the amount of such advance.
Section 3. REPAYMENT OF THE LOANS.
Section 3.1. Stated Maturity. The Borrower promises to pay on the
Maturity Date and there shall become absolutely due and payable on the Maturity
Date, all of the Loans outstanding on such date, together with any and all
accrued and unpaid interest thereon.
Section 3.2. Mandatory Prepayments.
(a) If at any time the aggregate outstanding principal
amount of the Loans exceeds the Total Commitment or the Borrowing Base, then the
Borrower shall immediately pay the amount of such excess to the Agent for the
respective accounts of the Banks for application to the Loans, except that the
amount of any Swing Loans shall be paid solely to the Swing Loan Bank.
(b) All of the Borrower's interest in the gross proceeds of
each and every sale or refinancing of real estate assets of the Borrower and its
Subsidiaries (whether held directly or indirectly), less all reasonable costs,
expenses and commissions paid to unrelated parties and less any Indebtedness
(other than the Obligations) secured by such asset to be satisfied as a part of
such sale or refinance and excluding any real property received in connection
with a like-kind
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exchange, shall be promptly paid by the Borrower to the Agent for the account of
the Banks as a prepayment of the Loans to the extent of the outstanding balance
of the Loans.
Section 3.3. Optional Prepayments. The Borrower shall have the right, at
its election, to prepay the outstanding amount of the Loans, as a whole or in
part, at any time without penalty or premium; provided, that the full or partial
prepayment of the outstanding amount of any LIBOR Rate Loans pursuant to this
Section 3.3 may be made only on the last day of the Interest Period relating
thereto except as otherwise required pursuant to Section 4.7. The Borrower shall
give the Agent, no later than 10:00 a.m., Boston time, at least three (3)
Business Days prior written notice of any prepayment pursuant to this Section
3.3 of any Base Rate Loans and at least four (4) LIBOR Business Days notice of
any proposed prepayment pursuant to this Section 3.3 of LIBOR Rate Loans, in
each case specifying the proposed date of payment of Loans and the principal
amount to be paid. Notwithstanding the foregoing, no prior notice shall be
required for the prepayment of any Swing Loan.
Section 3.4. Partial Prepayments. Each partial prepayment of the Loans
under Section 3.2 and Section 3.3 shall be in an integral multiple of $100,000,
shall be accompanied by the payment of accrued interest on the principal prepaid
to the date of payment and, after payment of such interest, shall be applied, in
the absence of instruction by the Borrower, first to the principal of any
Outstanding Swing Loans, and next to the principal of Base Rate Loans and then
to the principal of LIBOR Rate Loans.
Section 3.5. Effect of Prepayments. Amounts of the Loans prepaid under
Section 3.2 and Section 3.3 prior to the Maturity Date may be reborrowed as
provided in Section 2.
Section 3.6 Proceeds from Debt or Equity Offering. Unless otherwise
waived by the Majority Banks, the Borrower shall cause all gross proceeds of
each and every Debt Offering and Equity Offering, less all reasonable costs,
fees, expenses, underwriting commissions, fees and discounts incurred in
connection therewith, to be paid to the Agent for the account of the Banks as a
prepayment of the Loans within thirty (30) days of the date of such offering to
the extent of the outstanding balance of the Loans.
Section 4. CERTAIN GENERAL PROVISIONS.
Section 4.1. Conversion Options.
(a) The Borrower may elect from time to time to convert any
outstanding Loan to a Loan of another Type and such Loan shall thereafter bear
interest as a Base Rate Loan or a LIBOR Rate Loan, as applicable; provided that
(i) with respect to any such conversion of a LIBOR Rate Loan to a Base Rate
Loan, the Borrower shall give the Agent at least three Business Days' prior
written notice of such election, and such conversion shall only be made on the
last day of the Interest Period with respect to such LIBOR Rate Loan; (ii) with
respect to any such conversion of a Base Rate Loan to a LIBOR Rate Loan, the
Borrower shall give the Agent at
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least four LIBOR Business Days' prior written notice of such election and the
Interest Period requested for such Loan, the principal amount of the Loan so
converted shall be in a minimum aggregate amount of $2,000,000 or an integral
multiple of $100,000 in excess thereof and, after giving effect to the making of
such Loan, there shall be no more than six (6) LIBOR Rate Loans outstanding at
any one time; and (iii) no Loan may be converted into a LIBOR Rate Loan when any
Default or Event of Default has occurred and is continuing. Promptly upon
receipt of any such Conversion Request, the Agent shall notify each of the Banks
thereof. All or any part of the outstanding Loans of any Type may be converted
as provided herein, provided that no partial conversion shall result in a Base
Rate Loan in an aggregate principal amount of less than $1,000,000 or a LIBOR
Rate Loan in an aggregate principal amount of less than $2,000,000 and that the
aggregate principal amount of each Loan shall be in an integral multiple of
$100,000. On the date on which such conversion is being made, each Bank shall
take such action as is necessary to transfer its Commitment Percentage of such
Loans to its Domestic Lending Office or its LIBOR Lending Office, as the case
may be. Each Conversion Request relating to the conversion of a Base Rate Loan
to a LIBOR Rate Loan shall be irrevocable by the Borrower.
(b) Any Loan may be continued as such Type upon the
expiration of an Interest Period with respect thereto by compliance by the
Borrower with the terms of Section 4.1; provided that no LIBOR Rate Loan may be
continued as such when any Default or Event of Default has occurred and is
continuing, but shall be automatically converted to a Base Rate Loan on the last
day of the Interest Period relating thereto ending during the continuance of any
Default or Event of Default.
(c) In the event that the Borrower does not notify the Agent
of its election hereunder with respect to any Loan, such Loan shall be
automatically converted to a Base Rate Loan at the end of the applicable
Interest Period.
Section 4.2. Closing Fee. On the Closing Date, the Borrower shall pay to
BKB a facility and loan structuring fee pursuant to the Agreement Regarding
Fees, which fees shall be fully earned and non-refundable.
Section 4.3. Agent's Fee. The Borrower shall pay to the Agent, for the
Agent's own account, an annual Agent's fee as provided in the Agreement
Regarding Fees. The Agent's fee shall be payable quarterly in arrears on the
first day of each calendar quarter for the immediately preceding calendar
quarter or portion thereof. The Agent's fee shall also be paid upon the Maturity
Date or earlier termination of the Commitments. The Agent's fee for any partial
quarter shall be prorated.
Section 4.4. Funds for Payments.
(a) All payments of principal, interest, facility fees,
Agent's fees, closing fees, and any other amounts due hereunder or under any of
the other Loan Documents shall be made to the Agent, for the respective accounts
of the Banks and the Agent, as the case may be, at the
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Agent's Head Office, not later than 11:00 a.m. (Boston time) on the day when
due, in each case in immediately available funds. The Agent is hereby authorized
to charge the account of the Borrower with BKB, on the dates when the amount
thereof shall become due and payable, with the amounts of the principal of and
interest on the Loans and all fees, charges, expenses and other amounts owing to
the Agent and/or the Banks (including the Swing Loan Bank) under the Loan
Documents.
(b) All payments by the Borrower hereunder and under any of
the other Loan Documents shall be made without setoff or counterclaim and free
and clear of and without deduction for any taxes, levies, imposts, duties,
charges, fees, deductions, withholdings, compulsory loans, restrictions or
conditions of any nature now or hereafter imposed or levied by any jurisdiction
or any political subdivision thereof or taxing or other authority therein unless
the Borrower is compelled by law to make such deduction or withholding. If any
such obligation is imposed upon the Borrower with respect to any amount payable
by it hereunder or under any of the other Loan Documents, the Borrower will pay
to the Agent, for the account of the Banks (including the Swing Loan Bank) or
(as the case may be) the Agent, on the date on which such amount is due and
payable hereunder or under such other Loan Document, such additional amount in
Dollars as shall be necessary to enable the Banks or the Agent to receive the
same net amount which the Banks or the Agent would have received on such due
date had no such obligation been imposed upon the Borrower. The Borrower will
deliver promptly to the Agent certificates or other valid vouchers for all taxes
or other charges deducted from or paid with respect to payments made by the
Borrower hereunder or under such other Loan Document.
(c) Each Bank organized under the laws of a jurisdiction
outside the United States, if requested in writing by the Borrower (but only so
long as such Bank remains lawfully able to do so), shall provide the Borrower
with such duly executed form(s) or statement(s) which may, from time to time, be
prescribed by law and, which, pursuant to applicable provisions of (i) an income
tax treaty between the United States and the country of residence of such Bank,
(ii) the Code, or (iii) any applicable rules or regulations in effect under (i)
or (ii) above, indicates the withholding status of such Bank; provided that
nothing herein (including without limitation the failure of inability to provide
such form or statement) shall relieve the Borrower of its obligations under
Section 4.4(b). In the event that the Borrower shall have delivered the
certificates or vouchers described above for any payments made by the Borrower
and such Bank receives a refund of any taxes paid by the Borrower pursuant to
Section 4.4(b), such Bank will pay to the Borrower the amount of such refund
promptly upon receipt thereof; provided that if at any time thereafter such Bank
is required to return such refund, the Borrower shall promptly repay to such
Bank the amount of such refund.
Section 4.5. Computations. All computations of interest on the Loans and
of other fees to the extent applicable shall be based on a 360-day year and paid
for the actual number of days elapsed. Except as otherwise provided in the
definition of the term "Interest Period" with respect to LIBOR Rate Loans,
whenever a payment hereunder or under any of the other Loan Documents becomes
due on a day that is not a Business Day, the due date for such payment shall
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be extended to the next succeeding Business Day, and interest shall accrue
during such extension. The outstanding amount of the Loans as reflected on the
records of the Agent from time to time shall be considered prima facie evidence
of such amount.
Section 4.6. Inability to Determine LIBOR Rate. In the event that, prior
to the commencement of any Interest Period relating to any LIBOR Rate Loan, the
Agent shall determine in the exercise of its good faith business judgment that
adequate and reasonable methods do not exist for ascertaining the LIBOR Rate for
such Interest Period, the Agent shall forthwith give notice of such
determination (which shall be conclusive and binding on the Borrower and the
Banks) to the Borrower and the Banks. In such event (a) any Loan Request with
respect to LIBOR Rate Loans shall be automatically withdrawn and shall be deemed
a request for Base Rate Loans, and (b) each LIBOR Rate Loan will automatically,
on the last day of the then current Interest Period thereof, become a Base Rate
Loan, and the obligations of the Banks to make LIBOR Rate Loans shall be
suspended until the Agent determines that the circumstances giving rise to such
suspension no longer exist, whereupon the Agent shall so notify the Borrower and
the Banks.
Section 4.7. Illegality. Notwithstanding any other provisions herein, if
any present or future law, regulation, treaty or directive or the interpretation
or application thereof shall make it unlawful, or any central bank or other
governmental authority having jurisdiction over a Bank or its LIBOR Lending
Office shall assert that it is unlawful, for any Bank to make or maintain LIBOR
Rate Loans, such Bank shall forthwith give notice of such circumstances to the
Agent and the Borrower and thereupon (a) the commitment of the Banks to make
LIBOR Rate Loans or convert Loans of another type to LIBOR Rate Loans shall
forthwith be suspended and (b) the LIBOR Rate Loans then outstanding shall be
converted automatically to Base Rate Loans on the last day of each Interest
Period applicable to such LIBOR Rate Loans or within such earlier period as may
be required by law.
Section 4.8. Additional Interest. If any LIBOR Rate Loan or any portion
thereof is repaid or is converted to a Base Rate Loan for any reason on a date
which is prior to the last day of the Interest Period applicable to such LIBOR
Rate Loan, the Borrower will pay to the Agent upon demand for the account of the
Banks in accordance with their respective Commitment Percentages (or to the
Swing Loan Bank with respect to a Swing Loan), in addition to any amounts of
interest otherwise payable hereunder, any amounts required to compensate the
Banks for any losses, costs or expenses which may reasonably be incurred as a
result of such payment or conversion, including, without limitation, an amount
equal to daily interest for the unexpired portion of such Interest Period on the
LIBOR Rate Loan or portion thereof so repaid or converted at a per annum rate
equal to the excess, if any, of (a) the interest rate (including the Applicable
Margin) calculated on the basis of the LIBOR Rate applicable to such LIBOR Rate
Loan minus (b) the yield obtainable by the Agent upon the purchase of debt
securities customarily issued by the Treasury of the United States of America
which have a maturity date most closely approximating the last day of such
Interest Period (it being understood that the purchase of such securities shall
not be required in order for such amounts to be payable and that a Bank shall
not
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be obligated or required to have actually obtained funds at the LIBOR Rate or to
have actually reinvested such amount as described above).
Section 4.9. Additional Costs, Etc. Notwithstanding anything herein to
the contrary, if any present or future applicable law, which expression, as used
herein, includes statutes, rules and regulations thereunder and legally binding
interpretations thereof by any competent court or by any governmental or other
regulatory body or official with appropriate jurisdiction charged with the
administration or the interpretation thereof and requests, directives,
instructions and notices at any time or from time to time hereafter made upon or
otherwise issued to any Bank or the Agent by any central bank or other fiscal,
monetary or other authority (whether or not having the force of law), shall:
(a) subject any Bank or the Agent to any tax, levy, impost,
duty, charge, fee, deduction or withholding of any nature with respect to this
Agreement, the other Loan Documents, such Bank's Commitment (including the Swing
Loan Commitment) or the Loans (other than taxes based upon or measured by the
income or profits of such Bank or the Agent), or
(b) materially change the basis of taxation (except for
changes in taxes on income or profits) of payments to any Bank of the principal
of or the interest on any Loans or any other amounts payable to any Bank under
this Agreement or the other Loan Documents, or
(c) impose or increase or render applicable any special
deposit, reserve, assessment, liquidity, capital adequacy or other similar
requirements (whether or not having the force of law) against assets held by, or
deposits in or for the account of, or loans by, or letters of credit from, or
commitments of an office of any Bank, or
(d) impose on any Bank or the Agent any other conditions or
requirements with respect to this Agreement, the other Loan Documents, the
Loans, such Bank's Commitment (including the Swing Loan Commitment), or any
class of loans or commitments of which any of the Loans or such Bank's
Commitment (including the Swing Loan Commitment) forms a part; and the result of
any of the foregoing is
(i) to increase the cost to any Bank of making,
funding, issuing, renewing, extending or maintaining any of the Loans or such
Bank's Commitment (including the Swing Loan Commitment), or
(ii) to reduce the amount of principal, interest or
other amount payable to such Bank or the Agent hereunder on account of such
Bank's Commitment (including the Swing Loan Commitment) or any of the Loans, or
(iii) to require such Bank or the Agent to make any
payment or to forego any interest or other sum payable hereunder, the amount of
which payment or foregone
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interest or other sum is calculated by reference to the gross amount of any sum
receivable or deemed received by such Bank or the Agent from the Borrower
hereunder,
then, and in each such case, the Borrower will, within fifteen (15) days of
demand made by such Bank or (as the case may be) the Agent at any time and from
time to time and as often as the occasion therefor may arise, pay to such Bank
or the Agent such additional amounts as such Bank or the Agent shall determine
in good faith to be sufficient to compensate such Bank or the Agent for such
additional cost, reduction, payment or foregone interest or other sum. Each Bank
and the Agent in determining such amounts may use any reasonable averaging and
attribution methods, generally applied by such Bank or the Agent.
Notwithstanding the foregoing, the Borrower shall have the right, in lieu of
making the payment referred to in this Section 4.9, to prepay the Loans and
terminate the Commitments within thirty (30) days of such demand and avoid the
payment of the amounts otherwise due under this Section 4.9, provided, however,
that the Borrower shall be required to pay together with such prepayment of the
Loans all other costs, damages and expenses otherwise due under Section 4.8 of
this Agreement.
Section 4.10. Capital Adequacy. If after the date hereof any Bank
determines that (a) the adoption of or change in any law, rule, regulation,
guideline, directive or request (whether or not having the force of law)
regarding capital requirements for banks or bank holding companies or any change
in the interpretation or application thereof by any governmental authority,
central bank or comparable agency charged with the administration thereof, or
(b) compliance by such Bank or its parent bank holding company with any
guideline, request or directive of any such entity regarding capital adequacy
(whether or not having the force of law), has the effect of reducing the return
on such Bank's or such holding company's capital as a consequence of such Bank's
commitment to make Loans hereunder to a level below that which such Bank or
holding company could have achieved but for such adoption, change or compliance
(taking into consideration such Bank's or such holding company's then existing
policies with respect to capital adequacy and assuming the full utilization of
such entity's capital) by any amount deemed by such Bank to be material, then
such Bank may notify the Borrower thereof. The Borrower agrees to pay to such
Bank the amount of such reduction in the return on capital as and when such
reduction is determined, upon presentation by such Bank of a statement of the
amount setting forth the Bank's calculation thereof. In determining such amount,
such Bank may use any reasonable averaging and attribution methods.
Notwithstanding the foregoing, the Borrower shall have the right, in lieu of
making the payment referred to in this Section 4.10, to prepay the Loans and
terminate the Commitments within thirty (30) days of such demand and avoid the
payment of the amounts otherwise due under this Section 4.10, provided, however,
that the Borrower shall be required to pay together with such prepayment of the
Loans all other costs, damages and expenses otherwise due under Section 4.8 of
this Agreement.
Section 4.11. Indemnity of Borrower. The Borrower agrees to indemnify
each Bank and to hold each Bank harmless from and against any loss, cost or
expense that such Bank may sustain or incur as a consequence of (a) default by
the Borrower in payment of the principal amount of or any interest on any LIBOR
Rate Loans as and when due and payable, including any such loss or
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expense arising from interest or fees payable by such Bank to lenders of funds
obtained by it in order to maintain its LIBOR Rate Loans, or (b) default by the
Borrower in making a borrowing or conversion after the Borrower has given (or is
deemed to have given) a Loan Request or a Conversion Request.
Section 4.12. Interest on Overdue Amounts; Late Charge. Overdue
principal and (to the extent permitted by applicable law) interest on the Loans
and all other overdue amounts payable hereunder or under any of the other Loan
Documents shall bear interest payable on demand at a rate per annum which is
five percent (5.00%) per annum above the rate(s) of interest otherwise payable
from time to time under this Agreement until such amount shall be paid in full
(after as well as before judgment). In addition, the Borrower shall pay a late
charge equal to three percent (3%) of any amount of interest and/or principal
payable on the Loans or any other amounts payable hereunder or under the Loan
Documents, which is not paid within ten days of the date when due.
Section 4.13. Certificate. A certificate setting forth any amounts
payable pursuant to Section 4.8, Section 4.9, Section 4.10, Section 4.11 or
Section 4.12 and a brief explanation of such amounts which are due, submitted by
any Bank or the Agent to the Borrower, shall be conclusive in the absence of
manifest error.
Section 4.14. Limitation on Interest. Notwithstanding anything in this
Agreement to the contrary, all agreements between the Borrower and the Banks and
the Agent, whether now existing or hereafter arising and whether written or
oral, are hereby limited so that in no contingency, whether by reason of
acceleration of the maturity of any of the Obligations or otherwise, shall the
interest contracted for, charged or received by the Banks exceed the maximum
amount permissible under applicable law. If, from any circumstance whatsoever,
interest would otherwise be payable to the Banks in excess of the maximum lawful
amount, the interest payable to the Banks shall be reduced to the maximum amount
permitted under applicable law; and if from any circumstance the Banks shall
ever receive anything of value deemed interest by applicable law in excess of
the maximum lawful amount, an amount equal to any excessive interest shall be
applied to the reduction of the principal balance of the Obligations and to the
payment of interest or, if such excessive interest exceeds the unpaid balance of
principal of the Obligations, such excess shall be refunded to the Borrower. All
interest paid or agreed to be paid to the Banks shall, to the extent permitted
by applicable law, be amortized, prorated, allocated and spread throughout the
full period until payment in full of the principal of the Obligations (including
the period of any renewal or extension thereof) so that the interest thereon for
such full period shall not exceed the maximum amount permitted by applicable
law. This section shall control all agreements between the Borrower and the
Banks and the Agent.
Section 5. SECURITY.
The Banks have agreed to make the Loans to the Borrower on an unsecured
basis. Notwithstanding the foregoing, the Obligations shall be guaranteed by the
Guarantors pursuant to the Guaranty.
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Section 6. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Agent and the Banks as
follows:
Section 6.1. Corporate Authority, Etc.
(a) Incorporation; Good Standing. The Borrower is a Maryland
corporation duly organized pursuant to its Articles of Incorporation and
amendments thereto filed with the Secretary of the State of Maryland and is
validly existing and in good standing under the laws of Maryland. Each Guarantor
is a corporation, limited partnership, limited liability company or other form
of entity specified in Schedule 3 hereto pursuant to its organizational
agreements and is validly existing and in good standing under the laws of the
state of its organization set forth in Schedule 3 hereto. Each of the Borrower
and the Guarantors (i) has all requisite power to own its respective property
and conduct its respective business as now conducted and as presently
contemplated, and (ii) is in good standing as a foreign entity and is duly
authorized to do business in the jurisdictions where the Unencumbered Operating
Properties are located and in each other jurisdiction where a failure to be so
qualified in such other jurisdiction could have a materially adverse effect on
the business, assets or financial condition of such Person. The Borrower is a
real estate investment trust in full compliance with and entitled to the
benefits of Section 856 of the Code. The Guarantors are subsidiaries of the
Borrower. All of the capital stock of the Borrower has been issued in compliance
with all applicable laws.
(b) Subsidiaries. Each of the Subsidiaries of the Borrower
and the Guarantors (i) is a corporation, limited partnership, limited liability
company or trust duly organized under the laws of its State of organization and
is validly existing and in good standing under the laws thereof, (ii) has all
requisite power to own its property and conduct its business as now conducted
and as presently contemplated, and (iii) is in good standing and is duly
authorized to do business in each jurisdiction where a failure to be so
qualified could have a materially adverse effect on the business, assets or
financial condition of the Borrower, the Guarantors or such Subsidiary.
(c) Authorization. The execution, delivery and performance
of this Agreement and the other Loan Documents to which any of the Borrower or
the Guarantors are or are to become a party and the transactions contemplated
hereby and thereby (i) are within the authority of such Person, (ii) have been
duly authorized by all necessary proceedings on the part of such Person, (iii)
do not and will not conflict with or result in any breach or contravention of
any provision of law, statute, rule or regulation to which such Person is
subject or any judgment, order, writ, injunction, license or permit applicable
to such Person, (iv) do not and will not conflict with or constitute a default
(whether with the passage of time or the giving of notice, or both) under any
provision of the articles of incorporation, partnership agreement, declaration
of trust or other charter documents or bylaws of, or any mortgage, indenture,
agreement, contract or other instrument binding upon, such Person or any of its
properties or to which such Person is
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subject, and (v) do not and will not result in or require the imposition of any
lien or other encumbrance on any of the properties, assets or rights of such
Person.
(d) Enforceability. The execution and delivery of this
Agreement and the other Loan Documents to which any of the Borrower or the
Guarantors are or are to become a party are valid and legally binding
obligations of such Person enforceable in accordance with the respective terms
and provisions hereof and thereof, except as enforceability is limited by
bankruptcy, insolvency, reorganization, moratorium or other laws relating to or
affecting generally the enforcement of creditors' rights and except to the
extent that availability of the remedy of specific performance or injunctive
relief is subject to the discretion of the court before which any proceeding
therefor may be brought.
Section 6.2. Approvals. The execution, delivery and performance by the
Borrower and the Guarantors of this Agreement and the other Loan Documents to
which such Person is a party and the transactions contemplated hereby and
thereby do not require the approval or consent of any Person or the
authorization, consent or approval of, or any license or permit issued by, or
any filing or registration with, or the giving of any notice to, any court,
department, board, commission or other governmental agency or authority other
than those already obtained.
Section 6.3. Title to Properties; Leases. The Borrower and its
Subsidiaries own all of the assets reflected in the consolidated balance sheet
of the Borrower as of the Balance Sheet Date or acquired since that date except
the minority interests reflected therein (except property and assets sold or
otherwise disposed of in the ordinary course of business since that date),
subject to no rights of others, including any mortgages, leases, conditional
sales agreements, title retention agreements, liens or other encumbrances except
Permitted Liens. Without limiting the foregoing, the Borrower and its
Subsidiaries have good and marketable fee simple title to all real property
reasonably necessary for the operation of its business in whole, free from all
liens or encumbrances of any nature whatsoever, except for Permitted Liens. The
Borrower or one of its Subsidiaries, as the case may be, is the insured under
owner's policies of title insurance covering all real property owned by it, in
each case in an amount not less than the purchase price for such real property.
Section 6.4. Financial Statements. The Borrower has furnished to the
Agent: (a) the consolidated balance sheet of the Borrower and its Subsidiaries
as of the Balance Sheet Date and their related consolidated statements of
operations and cash flows for the period then ended certified by an officer of
the Borrower, (b) an unaudited statement of operating income for each of the
properties within the Unencumbered Operating Properties as of the Closing Date
for the fiscal quarter ended March 31, 1997 satisfactory in form to the Majority
Banks and certified by the chief financial officer of the Borrower, as fairly
presenting the operating income for such parcels for such periods, and (c)
certain other financial information relating to the Borrower, the Guarantors and
the Real Estate. Such balance sheet and statements have been prepared in
accordance with generally accepted accounting principles and fairly present the
financial condition of the Borrower and the Guarantors and their respective
Subsidiaries as of such dates and the results of the operations of the Borrower,
the Guarantors and their respective Subsidiaries
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for such periods. There are no liabilities, contingent or otherwise, of the
Borrower, the Guarantors or any of their respective Subsidiaries involving
material amounts not disclosed in said financial statements and the related
notes thereto.
Section 6.5. No Material Changes. Since the Balance Sheet Date, there
has occurred no materially adverse change in the financial condition or business
of the Borrower, the Guarantors and their respective Subsidiaries taken as a
whole as shown on or reflected in the consolidated balance sheet of the
Borrower, as of the Balance Sheet Date, or its consolidated statement of income
or cash flows for the fiscal year then ended, other than changes in the ordinary
course of business that have not had any materially adverse effect either
individually or in the aggregate on the business or financial condition of such
Person.
Section 6.6. Franchises, Patents, Copyrights, Etc. The Borrower, the
Guarantors and their respective Subsidiaries possess all franchises, patents,
copyrights, trademarks, trade names, service marks, licenses and permits, and
rights in respect of the foregoing, adequate for the conduct of their business
substantially as now conducted without known conflict with any rights of others.
Section 6.7. Litigation. There are no actions, suits, proceedings or
investigations of any kind pending or to the knowledge of such Person threatened
against the Borrower, the Guarantors or any of their respective Subsidiaries
before any court, tribunal, administrative agency or board, mediator or
arbitrator that, if adversely determined, might, either in any case or in the
aggregate, materially adversely affect the properties, assets, financial
condition or business of such Person or materially impair the right of such
Person to carry on business substantially as now conducted by it, or result in
any liability not adequately covered by insurance, or for which adequate
reserves are not maintained on the balance sheet of such Person, or which
question the validity of this Agreement or any of the other Loan Documents, any
action taken or to be taken pursuant hereto or thereto or any lien or security
interest created or intended to be created pursuant hereto or thereto, or which
will adversely affect the ability of the Borrower or the Guarantors to pay and
perform the Obligations in the manner contemplated by this Agreement and the
other Loan Documents. There are no material judgments outstanding against or
affecting the Borrower, the Guarantors or any of their respective Subsidiaries
or any of their properties.
Section 6.8. No Materially Adverse Contracts, Etc. None of the Borrower,
the Guarantors or any of their respective Subsidiaries is subject to any
charter, corporate or other legal restriction, or any judgment, decree, order,
rule or regulation that has or is expected in the future to have a materially
adverse effect on the business, assets or financial condition of such Person.
None of the Borrower, the Guarantors or any of their respective Subsidiaries is
a party to any mortgage, indenture, contract, agreement or other instrument that
has or is expected, in the judgment of the officers or partners of such Person,
to have any materially adverse effect on the business, assets or financial
condition of any of them.
Section 6.9. Compliance with Other Instruments, Laws, Etc. None of the
Borrower, the Guarantors or any of their respective Subsidiaries is in violation
of any provision of its charter or
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other organizational documents, bylaws, or any agreement or instrument to which
it may be subject or by which it or any of its properties may be bound or any
decree, order, judgment, statute, license, rule or regulation, in any of the
foregoing cases in a manner that could result in the imposition of substantial
penalties or materially and adversely affect the financial condition, properties
or business of such Person.
Section 6.10. Tax Status. The Borrower, the Guarantors and each of their
respective Subsidiaries (a) has made or filed all federal and state income and
all other tax returns, reports and declarations required by any jurisdiction to
which it is subject, except in such cases as a valid extension has been
obtained, (b) has paid all taxes and other governmental assessments and charges
shown or determined to be due on such returns, reports and declarations, except
those being contested in good faith and by appropriate proceedings and (c) has
set aside on its books provisions reasonably adequate for the payment of all
taxes for periods subsequent to the periods to which such returns, reports or
declarations apply. There are no unpaid taxes in any material amount claimed to
be due by the taxing authority of any jurisdiction, and the officers or partners
of such Person know of no basis for any such claim.
Section 6.11. No Event of Default. No Default or Event of Default has
occurred and is continuing.
Section 6.12. Holding Company and Investment Company Acts. None of the
Borrower, the Guarantors or any of their respective Subsidiaries is a "holding
company", or a "subsidiary company" of a "holding company", or an "affiliate" of
a "holding company", as such terms are defined in the Public Utility Holding
Company Act of 1935; nor is any of such Persons an "investment company", or an
"affiliated company" or a "principal underwriter" of an "investment company", as
such terms are defined in the Investment Company Act of 1940.
Section 6.13. Absence of U.C.C. Financing Statements, Etc. Except with
respect to Permitted Liens, there is no financing statement, security agreement,
chattel mortgage, real estate mortgage or other document filed or recorded with
any filing records, registry, or other public office, that purports to cover,
affect or give notice of any present or possible future lien on, or security
interest or security title in, any property of the Borrower, the Guarantors or
their respective Subsidiaries or rights thereunder.
Section 6.14. Certain Transactions. Except as set forth in the
Prospectus and other arms-length transactions on terms that would be acceptable
to an unaffiliated entity, none of the partners, officers, trustees, directors,
or employees of the Borrower, the Guarantors or any of their respective
Subsidiaries is a party to any transaction with the Borrower or any of its
Subsidiaries (other than for services as partners, employees, officers, trustees
and directors), including any contract, agreement or other arrangement providing
for the furnishing of services to or by, providing for rental of real or
personal property to or from, or otherwise requiring payments to or from any
partner, officer, trustee, director or such employee or, to the knowledge of the
Borrower, any corporation, partnership, trust or other entity in which any
partner, officer, trustee,
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director, or any such employee has a substantial interest or is an officer,
director, trustee or partner.
Section 6.15. Employee Benefit Plans. The Borrower and each ERISA
Affiliate has fulfilled its obligations under the minimum funding standards of
ERISA and the Code with respect to each Employee Benefit Plan, Multiemployer
Plan or Guaranteed Pension Plan and is in compliance in all material respects
with the presently applicable provisions of ERISA and the Code with respect to
each Employee Benefit Plan, Multiemployer Plan or Guaranteed Pension Plan.
Neither the Borrower nor any ERISA Affiliate has (a) sought a waiver of the
minimum funding standard under Section 412 of the Code in respect of any
Employee Benefit Plan, Multiemployer Plan or Guaranteed Pension Plan, (b) failed
to make any contribution or payment to any Employee Benefit Plan, Multiemployer
Plan or Guaranteed Pension Plan, or made any amendment to any Employee Benefit
Plan, Multiemployer Plan or Guaranteed Pension Plan, which has resulted or could
result in the imposition of a Lien or the posting of a bond or other security
under ERISA or the Code, or (c) incurred any liability under Title IV of ERISA
other than a liability to the PBGC for premiums under Section 4007 of ERISA.
None of the Unencumbered Operating Properties constitutes a "plan asset" of any
Employee Plan, Multiemployer Plan or Guaranteed Pension Plan.
Section 6.16. Regulations U and X. No portion of any Loan is to be used
for the purpose of purchasing or carrying any "margin security" or "margin
stock" as such terms are used in Regulations U and X of the Board of Governors
of the Federal Reserve System, 12 C.F.R. Parts 221 and 224. Neither the Borrower
nor any Guarantor is engaged, nor will it engage, principally or as one of its
important activities in the business of extending credit for the purpose of
purchasing or carrying any "margin security" or "margin stock" as such terms are
used in Regulations U and X of the Board of Governors of the Federal Reserve
System, 12 C.F.R. Parts 221 and 224.
Section 6.17. Environmental Compliance. The Borrower has taken or caused
to be taken all commercially reasonable steps to investigate the past and
present conditions and usage of the Real Estate and the operations conducted
thereon and, based upon such investigation, makes the following representations
and warranties.
(a) With respect to the Unencumbered Operating Properties,
and to the best of the Borrower's knowledge with respect to any other Real
Estate, except as set forth in Schedule 6.17, none of the Borrower, the
Guarantors or their respective Subsidiaries or any operator of the Real Estate,
or any operations thereon is in violation, or alleged violation, of any
judgment, decree, order, law, license, rule or regulation pertaining to
environmental matters, including without limitation, those arising under the
Resource Conservation and Recovery Act ("RCRA"), the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 as amended ("CERCLA"), the
Superfund Amendments and Reauthorization Act of 1986 ("SARA"), the Federal Clean
Water Act, the Federal Clean Air Act, the Toxic Substances Control Act, or any
state or local statute, regulation, ordinance, order or decree relating to the
environment
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(hereinafter "Environmental Laws"), which violation involves the Unencumbered
Operating Properties or other Real Estate and would have a material adverse
effect on the environment or the business, assets or financial condition of the
Borrower, the Guarantors or any of their respective Subsidiaries.
(b) Neither the Borrower, the Guarantors nor any of their
respective Subsidiaries has received notice from any third party including,
without limitation, any federal, state or local governmental authority, (i) that
it has been identified by the United States Environmental Protection Agency
("EPA") as a potentially responsible party under CERCLA with respect to a site
listed on the National Priorities List, 40 C.F.R. Part 300 Appendix B (1986);
(ii) that any hazardous waste, as defined by 42 U.S.C. Section 9601(5), any
hazardous substances as defined by 42 U.S.C. Section 9601(14), any pollutant or
contaminant as defined by 42 U.S.C. Section 9601(33) or any toxic substances,
oil or hazardous materials or other chemicals or substances regulated by any
Environmental Laws ("Hazardous Substances") which it has generated, transported
or disposed of have been found at any site at which a federal, state or local
agency or other third party has conducted or has ordered that the Borrower, the
Guarantors or any of their respective Subsidiaries conduct a remedial
investigation, removal or other response action pursuant to any Environmental
Law; or (iii) that it is or shall be a named party to any claim, action, cause
of action, complaint, or legal or administrative proceeding (in each case,
contingent or otherwise) arising out of any third party's incurrence of costs,
expenses, losses or damages of any kind whatsoever in connection with the
release of Hazardous Substances.
(c) With respect to the Unencumbered Operating Properties,
and to the best of the Borrower's knowledge, with respect to any other Real
Estate, except as set forth in Schedule 6.17, or in the case of Real Estate
acquired after the date hereof, except as may be disclosed in writing to the
Agent upon the acquisition of the same: (i) no portion of the Real Estate has
been used for the handling, processing, storage or disposal of Hazardous
Substances except in accordance with applicable Environmental Laws, and no
underground tank or other underground storage receptacle for Hazardous
Substances is located on any portion of such Real Estate except for such tanks
as are monitored and maintained in accordance with applicable Environmental
Laws; (ii) in the course of any activities conducted by the Borrower, the
Guarantors or any of their respective Subsidiaries or the operators of any of
their properties, no Hazardous Substances have been generated or are being used
on the Real Estate of such Person except in the ordinary course of business and
in accordance with applicable Environmental Laws; (iii) there has been no past
or present releasing, spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, disposing or dumping (a "Release") or
threatened Release of Hazardous Substances on, upon, into or from such Real
Estate or on, upon, into or from the other properties of the Borrower, the
Guarantors or any of their respective Subsidiaries, which Release would have a
material adverse effect on the value of any of such Real Estate or adjacent
properties or the environment; (iv) there have been no Releases on, upon, from
or into any real property in the vicinity of any of such Real Estate which,
through soil or groundwater contamination, may have come to be located on, and
which would have a material adverse effect on the value of, such Real Estate;
and (v) any Hazardous Substances that have been generated on any of such Real
Estate
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have been transported off-site only by carriers having an identification number
issued by the EPA or approved by a state or local environmental regulatory
authority having jurisdiction regarding the transportation of such substance and
treated or disposed of only by treatment or disposal facilities maintaining
valid permits as required under all applicable Environmental Laws, which
transporters and facilities have been and are, to the best of the Borrower's
knowledge operating in compliance with such permits and applicable Environmental
Laws. Upon the receipt by the Agent of any such disclosure, the Agent shall
promptly notify the Banks thereof.
(d) To the best of the Borrower's knowledge and belief,
neither the Borrower, the Guarantors, their respective Subsidiaries nor any Real
Estate of such Person is subject to any applicable Environmental Law requiring
the performance of Hazardous Substances site assessments, or the removal or
remediation of Hazardous Substances, or the giving of notice to any governmental
agency or the recording or delivery to other Persons of an environmental
disclosure document or statement by virtue of the transactions set forth herein
and contemplated hereby, or as a condition to the effectiveness of any other
transactions contemplated hereby.
Section 6.18. Subsidiaries. Schedule 6.18 sets forth all of the
Subsidiaries of the Borrower and the Guarantors. The form and jurisdiction of
organization of each of the Subsidiaries, the Borrower's or Guarantor's and each
other Person's ownership interest therein, and the Real Estate owned by such
Subsidiary is set forth in said Schedule 6.18.
Section 6.19. Loan Documents and the Guarantors. All of the
representations and warranties of the Borrower and the Guarantors made in this
Agreement and the other Loan Documents or any document or instrument delivered
to the Agent or the Banks pursuant to or in connection with any of such Loan
Documents are true and correct in all material respects, and neither the
Borrower nor the Guarantors has failed to disclose such information as is
necessary to make such representations and warranties not misleading.
Section 6.20. Property. All of the Borrower's, the Guarantors' and their
respective Subsidiaries' properties are in good repair and condition, subject to
ordinary wear and tear, other than with respect to deferred maintenance existing
as of the date of acquisition of such property as permitted in this Section
6.20. The Borrower further has completed or caused to be completed an
appropriate investigation of the environmental condition of each such property
as of the later of the date of the Borrower's, the Guarantors' or such
Subsidiaries' purchase thereof or the date upon which such property was last
security for Indebtedness of the Borrower, the Guarantors or such Subsidiary,
including preparation of a "Phase I" report and, if appropriate, a "Phase II"
report, in each case prepared by a recognized environmental engineer in
accordance with customary standards which discloses that such property is not in
violation of the representations and covenants set forth in this Agreement,
unless such violation has been disclosed in writing to the Agent and remediation
actions satisfactory to Agent are being taken. There are no unpaid or
outstanding real estate or other taxes or assessments on or against any property
of the Borrower, the Guarantors or any of their respective Subsidiaries which
are payable by such Person (except
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only real estate or other taxes or assessments, that are not yet due and
payable). Except as set forth in Schedule 6.20 hereto, there are no pending
eminent domain proceedings against any property of the Borrower, the Guarantors
or their respective Subsidiaries or any part thereof, and, to the knowledge of
the Borrower, no such proceedings are presently threatened or contemplated by
any taking authority which may individually or in the aggregate have any
materially adverse effect on the business or financial condition of the Borrower
or the Guarantors. None of the property of Borrower, the Guarantors or their
respective Subsidiaries is now damaged or injured as a result of any fire,
explosion, accident, flood or other casualty in any manner which individually or
in the aggregate would have any materially adverse effect on the business or
financial condition of the Borrower or the Guarantors.
Section 6.21. Brokers. Neither the Borrower nor any of its Subsidiaries
has engaged or otherwise dealt with any broker, finder or similar entity in
connection with this Agreement or the Loans contemplated hereunder.
Section 6.22. Other Debt. None of the Borrower, the Guarantors or any of
their respective Subsidiaries is in default in the payment of any other
Indebtedness or under any agreement, mortgage, deed of trust, security
agreement, financing agreement, indenture or lease to which any of them is a
party. The Borrower is not a party to or bound by any agreement, instrument or
indenture that may require the subordination in right or time of payment of any
of the Obligations to any other indebtedness or obligation of the Borrower.
Section 6.23. Solvency. As of the Closing Date and after giving effect
to the transactions contemplated by this Agreement and the other Loan Documents,
including all of the Loans made or to be made hereunder, neither the Borrower
nor any Guarantor is insolvent on a balance sheet basis such that the sum of
such Person's assets exceeds the sum of such Person's liabilities, the Borrower
and each Guarantor is able to pay its debts as they become due, and the Borrower
and each Guarantor has sufficient capital to carry on its business.
Section 6.24. The Partners and the Guarantors. Borrower is the sole
general partner of EH Properties, L.P. and owns a 99.825 % partnership interest
in such partnership. The Borrower owns all of the issued and outstanding shares
of Excel Realty-PA, Inc., Excel Realty Trust-ST, Inc. and Excel Realty-NE, Inc.
NC Properties #1 Inc. and NC Properties #2 Inc. are the sole partners of Excel
Realty Trust-NC, and Borrower owns all of the issued and outstanding stock of NC
Properties #1 Inc. and NC Properties #2 Inc. TX Properties #1 Inc. and TX
Properties #2 Inc. are the sole partners of Excel Realty Trust-TX, L.P., and
Borrower owns all of the issued and outstanding stock of TX Properties #1 Inc.
and TX Properties #2 Inc.
Section 7. AFFIRMATIVE COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as any Loan or Note is
outstanding or any Bank has any obligation to make any Loans:
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Section 7.1. Punctual Payment. The Borrower will duly and punctually pay
or cause to be paid the principal and interest on the Loans and all interest and
fees provided for in this Agreement, all in accordance with the terms of this
Agreement and the Notes as well as all other sums owing pursuant to the Loan
Documents.
Section 7.2. Maintenance of Office. The Borrower will maintain its chief
executive office at 16955 Via Del Campo, Suite 110, San Diego, California 92127
or at such other place in the United States of America as the Borrower shall
designate upon prior written notice to the Agent and the Banks, where notices,
presentations and demands to or upon the Borrower in respect of the Loan
Documents may be given or made.
Section 7.3. Records and Accounts. The Borrower will (a) keep, and cause
each of its Subsidiaries to keep, true and accurate records and books of account
in which full, true and correct entries will be made in accordance with
generally accepted accounting principles and (b) maintain adequate accounts for
all taxes (including income taxes), depreciation, depletion and amortization of
its properties and the properties of its Subsidiaries, contingencies and other
reserves. Neither the Borrower nor its Subsidiaries shall, without the prior
written consent of the Majority Banks, make any material change to the
accounting procedures used by such Person in preparing the financial statements
and other information described Section 6.4. The Borrower shall not, without the
prior written consent of the Majority Banks, change its fiscal year.
Section 7.4. Financial Statements, Certificates and Information. The
Borrower will deliver or cause to be delivered to each of the Banks:
(a) as soon as practicable, but in any event not later than
90 days after the end of each fiscal year of the Borrower, the audited
consolidated balance sheet of the Borrower and its Subsidiaries at the end of
such year, and the related audited consolidated statements of income, changes in
shareholder's equity and cash flows for such year, each setting forth in
comparative form the figures for the previous fiscal year and all such
statements to be in reasonable detail, prepared in accordance with generally
accepted accounting principles, and accompanied by an auditor's report prepared
without qualification by Coopers & Lybrand or by another "Big Six" accounting
firm, the Form 10-K filed with the SEC (unless the SEC has approved an
extension, in which event the Borrower will deliver to the Agent and each of the
Banks a copy of the Form 10-K simultaneously with delivery to the SEC), and any
other information the Banks may need to complete a financial analysis of the
Borrower and its Subsidiaries, together with a written statement from such
accountants to the effect that they have read a copy of this Agreement and the
Guaranty, and that, in making the examination necessary to said certification,
they have obtained no knowledge of any Default or Event of Default, or, if such
accountants shall have obtained knowledge of any then existing Default or Event
of Default they shall disclose in such statement any such Default or Event of
Default; provided that such accountants shall not be liable to the Agent or the
Banks for failure to obtain knowledge of any Default or Event of Default;
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(b) as soon as practicable, but in any event not later than
45 days after the end of each of the first three fiscal quarters of the
Borrower, (i) copies of Form 10-Q filed with the SEC (unless the SEC has
approved an extension in which event the Borrower will deliver such copies of
the Form 10-Q to the Agent and each of the Banks simultaneously with delivery to
the SEC), or in the event that the Borrower is not required to file a Form 10-Q,
then (ii) copies of the unaudited consolidated balance sheet of the Borrower and
its Subsidiaries as at the end of such quarter, and the related unaudited
consolidated statements of income, changes in shareholder's equity and cash
flows for the portion of the Borrower's fiscal year then elapsed, all in
reasonable detail and prepared in accordance with generally accepted accounting
principles, together with a certification by the principal financial or
accounting officer of the Borrower that the information contained in such
financial statements fairly presents the financial position of the Borrower and
its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial
statements referred to in subsections (a) and (b) above and within thirty (30)
days of the filing by the Borrower of a Form 8-K with the SEC, or the filing
with the SEC of any other document amending any other filing made by the
Borrower, a statement (a "Compliance Certificate") certified by the principal
financial or accounting officer of the Borrower in the form of Exhibit D hereto
(or in such other form as the Agent may approve from time to time) setting forth
in reasonable detail computations evidencing compliance with the covenants
contained in Section 9 and the other covenants described therein, and (if
applicable) reconciliations to reflect changes in generally accepted accounting
principles since the Balance Sheet Date. The Compliance Certificate shall also
be accompanied by the following:
(i) copies of a consolidated statement of cash flow
for such fiscal quarter for the Borrower and its Subsidiaries, prepared
on a basis consistent with the statement furnished pursuant to Section
6.4, together with a certification by the chief financial or chief
accounting officer of the Borrower that the information contained in
such statement fairly presents the Operating Cash Flow of the Borrower
and its Subsidiaries for such period;
(ii) a summary Rent Roll with respect to the
Unencumbered Operating Properties in form reasonably satisfactory to the
Majority Banks;
(iii) a list setting forth the following information
with respect to each new Subsidiary of the Borrower: (A) the name and
structure of the Subsidiary, (B) a description of the property owned by
such Subsidiary, and (C) such other information as the Agent may
reasonably request;
(iv) a statement (A) listing the Real Estate owned by
the Borrower and its Subsidiaries (or in which the Borrower or its
Subsidiaries owns an interest) and stating the location thereof, the
date acquired and the acquisition cost, (B) listing the Indebtedness of
the Borrower and its Subsidiaries (excluding Indebtedness of the type
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described in Section 8.1(b)-(e)), which statement shall include, without
limitation, a statement of the current outstanding amount of such
Indebtedness and unfunded amounts available under any such facilities,
the holder thereof, the maturity date and any extension options, the
interest rate, the collateral provided for such Indebtedness and whether
such Indebtedness is recourse or non-recourse, and (C) listing the
properties of the Borrower and its Subsidiaries which are under
"development" (as used in Section 8.9) and providing a brief summary of
the status of such development; and
(v) a list of the Unencumbered Operating Properties
and the certification of the chief financial or chief accounting officer
of the Borrower that the Unencumbered Operating Properties comply with
the terms of Sections 6.17, 6.20 and 7.14;
(d) concurrently with the delivery of the financial
statements described in subsection (b) above, a certificate signed by the
President or Chief Financial Officer of the Borrower to the effect that, having
read this Agreement, and based upon an examination which they deem sufficient to
enable them to make an informed statement, there does not exist any Default or
Event of Default, or if such Default or Event of Default has occurred,
specifying the facts with respect thereto;
(e) contemporaneously with the filing or mailing thereof,
copies of all material of a financial nature filed with the SEC or sent to the
stockholders of the Borrower;
(f) promptly after they are filed with the Internal Revenue
Service, copies of all annual federal income tax returns and amendments thereto
of each of the Borrower and Guarantors;
(g) not later than five (5) Business Days after the Borrower
receives notice of the same from either Rating Agency or otherwise learns of the
same, notice of the issuance of any change in the rating by either Rating Agency
in respect of any debt of the Borrower (including any change in an Implied
Rating), together with the details thereof, and of any announcement by such
Rating Agency that any such rating is "under review" or that any such rating has
been placed on a watch list or that any similar action has been taken by such
Rating Agency (collectively a "Rating Notice"); and
(h) from time to time such other financial data and
information in the possession of the Borrower or its respective Subsidiaries
(including without limitation auditors' management letters, evidence of payment
of taxes, property inspection and environmental reports and information as to
zoning and other legal and regulatory changes affecting any of such Persons) as
the Agent may reasonably request.
Section 7.5. Notices.
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(a) Defaults. The Borrower will promptly notify the Agent in
writing of the occurrence of any Default or Event of Default. If any Person
shall give any notice or take any other action in respect of a claimed default
(whether or not constituting an Event of Default) under this Agreement or under
any note, evidence of indebtedness, indenture or other obligation to which or
with respect to which the Borrower, the Guarantors or any of their respective
Subsidiaries is a party or obligor, whether as principal or surety, and such
default would permit the holder of such note or obligation or other evidence of
indebtedness to accelerate the maturity thereof or the existence of which
claimed default might become an Event of Default under Section 12.1(g), the
Borrower shall forthwith give written notice thereof to the Agent and each of
the Banks, describing the notice or action and the nature of the claimed
default.
(b) Environmental Events. The Borrower will promptly give
notice to the Agent (i) upon the Borrower or the Guarantors obtaining knowledge
of any potential or known Release, or threat of Release, of any Hazardous
Substances at or from any Real Estate; (ii) of any violation of any
Environmental Law that the Borrower, the Guarantors or any of their respective
Subsidiaries reports in writing or is reportable by such Person in writing (or
for which any written report supplemental to any oral report is made) to any
federal, state or local environmental agency; and (iii) upon becoming aware
thereof, of any inquiry, proceeding, investigation, or other action, including a
notice from any agency of potential environmental liability, of any federal,
state or local environmental agency or board, that in either case involves any
Real Estate or has the potential to materially affect the assets, liabilities,
financial conditions or operations of such Person.
(c) Notice of Litigation and Judgments. The Borrower will
give notice to the Agent in writing within 15 days of becoming aware of any
litigation or proceedings threatened in writing or any pending litigation and
proceedings affecting the Borrower, the Guarantors or any of their respective
Subsidiaries or to which any of such Persons is or is to become a party
involving an uninsured claim against such Person that could reasonably be
expected to have a materially adverse effect on the Borrower or the Guarantors
and stating the nature and status of such litigation or proceedings. The
Borrower will give notice to the Agent, in writing, in form and detail
satisfactory to the Agent and each of the Banks, within ten days of any judgment
not covered by insurance, whether final or otherwise, against the Borrower, the
Guarantors, any of their respective Subsidiaries in an amount in excess of
$5,000,000.00.
(d) Notice of Proposed Sales, Encumbrances, Refinance or
Transfer. The Borrower will give notice to the Agent of any proposed or
completed sale, encumbrance, refinance or transfer of any Unencumbered Operating
Property within any fiscal quarter of the Borrower, such notice to be submitted
together with the Compliance Certificate provided or required to be provided to
the Banks under Section 7.4 with respect to such fiscal quarter. The Compliance
Certificate shall with respect to any proposed or completed sale, encumbrance,
refinance or transfer be adjusted in the best good-faith estimate of the
Borrower to give effect to such
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sale, encumbrance, refinance or transfer and demonstrate that no Default or
Event of Default with respect to the covenants referred to therein shall exist
after giving effect to such sale, encumbrance, refinance or transfer.
Notwithstanding the foregoing, in the event of any sale, encumbrance, refinance
or transfer of any Unencumbered Operating Property involving an aggregate amount
in excess of $25,000,000.00 , the Borrower shall promptly give notice to the
Agent of such transaction, which notice shall be accompanied by a certification
of the chief financial officer of the Borrower that no Default or Event of
Default shall exist after giving affect to such event.
(e) Notification of Banks. Promptly after receiving any
notice under this Section 7.5, the Agent will forward a copy thereof to each of
the Banks, together with copies of any certificates or other written information
that accompanied such notice.
Section 7.6. Existence; Maintenance of Properties.
(a) The Borrower will do or cause to be done all things
necessary to preserve and keep in full force and effect its existence as a
Maryland corporation. The Borrower will cause each of its Subsidiaries to do or
cause to be done all things necessary to preserve and keep in full force and
effect its legal existence. The Borrower will do or cause to be done all things
necessary to preserve and keep in full force all of its rights and franchises
and those of its Subsidiaries. The Borrower will, and will cause each of its
Subsidiaries to, continue to engage primarily in the businesses now conducted by
it and in related businesses.
(b) Irrespective of whether proceeds of the Loans are
available for such purpose, the Borrower (i) will cause all of its properties
and those of the Guarantors and their respective Subsidiaries used or useful in
the conduct of its business or the business of such Persons to be maintained and
kept in good condition, repair and working order (ordinary wear and tear
excepted) and supplied with all necessary equipment, and (ii) will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof in all cases in which the failure so to do would have a material adverse
effect on the condition of its properties or on the financial condition, assets
or operations of the Borrower, the Guarantors or their respective Subsidiaries.
(c) The common stock of the Borrower shall at all times be
listed for trading and be traded on the New York Stock Exchange.
Section 7.7. Insurance. The Borrower will, at its expense, procure and
maintain or cause to be procured and maintained insurance covering the Borrower,
the Guarantors, their respective Subsidiaries and their respective properties in
such amounts and against such risks and casualties as are customary for
properties of similar character and location, due regard being given to the type
of improvements thereon, their construction, location, use and occupancy.
Section 7.8. Taxes. The Borrower, the Guarantors and their respective
Subsidiaries will duly pay and discharge, or cause to be paid and discharged,
before the same shall become overdue, all taxes, assessments and other
governmental charges imposed upon it and upon the Real Estate,
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sales and activities, or any part thereof, or upon the income or profits
therefrom, as well as all claims for labor, materials, or supplies that if
unpaid might by law become a lien or charge upon any of its property; provided
that any such tax, assessment, charge, levy or claim need not be paid if the
validity or amount thereof shall currently be contested in good faith by
appropriate proceedings and if such Person shall have set aside on its books
adequate reserves with respect thereto; and provided, further, that forthwith
upon the commencement of proceedings to foreclose any lien that may have
attached as security therefor, such Person either (i) will provide a bond issued
by a surety reasonably acceptable to the Agent and sufficient to stay all such
proceedings or (ii) if no such bond is provided, will pay each such tax,
assessment, charge, levy or claim. The Borrower shall certify annually to the
Agent that this Section 7.8 has been satisfied with respect to the Unencumbered
Operating Properties.
Section 7.9. Inspection of Properties and Books. The Borrower shall
permit the Banks, through the Agent or any representative designated by the
Agent, at the Bank's expense to visit and inspect any of the properties of the
Borrower or any of its Subsidiaries, to examine the books of account of the
Borrower and its Subsidiaries (and to make copies thereof and extracts
therefrom) and to discuss the affairs, finances and accounts of the Borrower and
its Subsidiaries with, and to be advised as to the same by, its officers, all at
such reasonable times and intervals as the Agent or any Bank may reasonably
request; provided that if an Event of Default shall have occurred, Borrower
shall be responsible for the expense of such visits and inspections. The Banks
shall use good faith efforts to coordinate such visits and inspections so as to
minimize the interference with and disruption to the Borrower's normal business
operations.
Section 7.10. Compliance with Laws, Contracts, Licenses, and Permits.
The Borrower will comply with, and will cause the Guarantors and each of their
respective Subsidiaries to comply in all respects with (i) all applicable laws,
ordinances, regulations and requirements now or hereafter in effect wherever its
business is conducted, including all Environmental Laws, (ii) the provisions of
its corporate charter, partnership agreement or declaration of trust, as the
case may be, and other charter documents and bylaws, (iii) all mortgages,
indentures, contracts, agreements and instruments to which it is a party or by
which it or any of its properties may be bound, (iv) all applicable decrees,
orders, and judgments, and (v) all licenses and permits required by applicable
laws and regulations for the conduct of its business or the ownership, use or
operation of its properties. If at any time while any Loan or Note is
outstanding or the Banks have any obligation to make Loans hereunder, any
authorization, consent, approval, permit or license from any officer, agency or
instrumentality of any government shall become necessary or required in order
that the Borrower may fulfill any of its obligations hereunder, the Borrower
will immediately take or cause to be taken all steps necessary to obtain such
authorization, consent, approval, permit or license and furnish the Agent and
the Banks with evidence thereof.
Section 7.11. Use of Proceeds. The Borrower will use the proceeds of the
Loans solely to provide short-term financing (a) subject to the limitations in
Section 8.3 and Section 9.6, for the acquisition by the Borrower of fee
interests in Real Estate which is utilized principally for Retail Uses,
undeveloped or non-income producing land which is zoned for Retail Uses, or
Opportunity
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Properties (including reasonable transaction costs related thereto), (b) for the
development by the Borrower of properties as permitted by Section 8.9, (c) for
working capital purposes of the Borrower (including without limitation the
payment of Distributions and Preferred Distributions), and (d) for such other
purposes of the Borrower as the Majority Banks in their discretion from time to
time may agree to in writing. Notwithstanding anything herein to the contrary,
the amount of Loans outstanding at any time which has been advanced for the
purpose described in Section 7.11(c) shall not exceed $50,000,000.00. Any
repayment of a principal portion of the Loans at a time when any amount of Loans
has been advanced for the purpose described in Section 7.11(c) shall be first
allocated for the purposes of this Section 7.11 to reduce the amount advanced
for the purpose described in Section 7.11(c).
Section 7.12. Further Assurances. The Borrower will cooperate with, and
will cause each of the Guarantors and their respective Subsidiaries to cooperate
with the Agent and the Banks and execute such further instruments and documents
as the Banks or the Agent shall reasonably request to carry out to their
satisfaction the transactions contemplated by this Agreement and the other Loan
Documents.
Section 7.13. Management; Business Operations. The Borrower shall cause
all Unencumbered Operating Properties at all times to be managed by the Borrower
and no change shall occur in such management without the prior written approval
of the Majority Banks. The Borrower, the Guarantors and their respective
Subsidiaries shall operate their respective businesses as described in the
Prospectus and in compliance with the terms and conditions of this Agreement and
the Loan Documents. The Borrower shall at all time comply with all requirements
of applicable laws necessary to maintain REIT Status on a self-directed and
self-maintained basis.
Section 7.14. Unencumbered Operating Properties.
(a) The Borrower shall (subject to the caveat set forth in
the definition of Unencumbered Operating Properties) at all times own
Unencumbered Operating Properties which satisfy all of the following conditions:
(i) the Unencumbered Operating Properties shall
consist solely of Real Estate which has an aggregate occupancy level of
tenants in possession and operating and which are no more that thirty
(30) days in default (on a portfolio basis) of at least eighty-five
percent (85%) for the previous fiscal quarter of the Borrower based on
bona fide arms-length tenant leases requiring current rental payments;
and
(ii) no more than twenty-five percent (25%) of the
Asset Value of the Unencumbered Operating Properties may be located in
any one metropolitan statistical area.
(b) In the event that all or any material portion of a
property within the Unencumbered Operating Properties shall be damaged or taken
by condemnation, then such
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property shall no longer be a part of the Unencumbered Operating Properties
unless and until any damage to such Real Estate is repaired or restored, such
Real Estate becomes fully operational and the Agent shall receive evidence
satisfactory to the Agent of the value and Operating Cash Flow of such Real
Estate following such repair or restoration.
Section 7.15. Limiting Agreements.
(a) Neither Borrower, any Guarantor nor any of their
respective Subsidiaries shall enter into, any agreement, instrument or
transaction which has or may have the effect of prohibiting or limiting
Borrower's or any Guarantor's ability to pledge to Agent the Unencumbered
Operating Properties which are owned by the Borrower or such Guarantor as
security for the Loans; provided that such Persons may enter into an agreement
which has the effect of limiting Borrower's or Guarantor's ability to pledge the
Unencumbered Operating Properties solely as a result of the operation of a
financial covenant which is no more restrictive against such Persons than those
financial covenants contained in the Loan Documents. Borrower shall take, and
shall cause the Guarantors and their respective Subsidiaries to take, such
actions as are necessary to preserve the right and ability of Borrower and the
Guarantors to pledge the Unencumbered Operating Properties as security for the
Loans without any such pledge after the date hereof causing or permitting the
acceleration (after the giving of notice or the passage of time, or otherwise)
of any other Indebtedness of Borrower, the Guarantors or any of their respective
Subsidiaries.
(b) Borrower shall, upon demand, provide to the Agent such
evidence as the Agent may reasonably require to evidence compliance with this
Section 7.15, which evidence shall include, without limitation, copies of any
agreements or instruments which would in any way restrict or limit the
Borrower's or any Guarantor's ability to pledge assets as security for
Indebtedness, or which provide for the occurrence of a default (after the giving
of notice or the passage of time, or otherwise) if assets are pledged in the
future as security for Indebtedness of the Borrower or any of its Subsidiaries.
Section 7.16. Distributions of Income to the Borrower. The Borrower
shall cause all of its Subsidiaries to promptly distribute to the Borrower (but
not less frequently than once each fiscal quarter of the Borrower, unless
otherwise approved by the Agent), whether in the form of dividends,
distributions or otherwise, all profits, proceeds or other income relating to or
arising from its Subsidiaries' use, operation, financing, refinancing, sale or
other disposition of their respective assets and properties after (a) the
payment by each Subsidiary of its Debt Service and operating expenses for such
quarter and (b) the establishment of reasonable reserves for the payment of
operating expenses not paid on at least a quarterly basis and capital
improvements to be made to such Subsidiary's assets and properties approved by
such Subsidiary in the ordinary course of business consistent with its past
practices.
Section 7.17. More Restrictive Agreements. Without limiting the terms of
Section 8.1, should the Borrower or any Guarantor enter into or modify any
agreements or documents pertaining to any existing or future Indebtedness, Debt
Offering or Equity Offering, which agreements or documents include covenants
(whether affirmative or negative), warranties, representations,
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defaults or events of default (or any other provision which may have the same
practical effect as any of the foregoing) which are individually or in the
aggregate more restrictive against the Borrower, any Guarantor or their
respective Subsidiaries than those set forth herein or in any of the other Loan
Documents, the Borrower shall promptly notify the Agent and, if requested by
Majority Banks, the Borrower, the Agent and the Majority Banks shall (and, if
applicable, the Borrower shall cause the Guarantors to) promptly amend this
Agreement and the other Loan Documents to include some or all or such more
restrictive provisions as determined by the Majority Banks in their sole
discretion.
Section 7.18. Additional Guarantors. In the event that any Subsidiary of
the Borrower that is not a Guarantor owns Real Estate which would otherwise
qualify as an Unencumbered Operating Property and the Borrower desires for the
same to become an Unencumbered Operating Property, then such property may become
an Unencumbered Operating Property but only in the event that all of the terms
and conditions of this Section 7.18 are satisfied:
(a) The Borrower (i) shall be and shall remain the general
partner, managing member, controlling shareholder or similar controlling entity
of such Subsidiary (each such entity is hereinafter referred to as an
"Additional Guarantor"), (ii) shall own and shall continue to own a controlling
interest of the legal, beneficial and voting interests of such Additional
Guarantor and (iii) shall have control over all major (including the decision to
sell or encumber such Person's assets) and other day-to-day decisions with
respect to the operation of such Additional Guarantor;
(b) The organizational agreements of such Subsidiary or such
other resolutions or consents satisfactory to Agent shall specifically authorize
the Borrower to guaranty on behalf of such Subsidiary the Obligations and to
pledge the assets of such Subsidiary as security for the Obligations and the
Borrower shall certify to the Agent that applicable law does not preclude such
Subsidiary from executing such guaranty or pledging its assets to secure the
Obligations;
(c) All representations in the Loan Documents made by or
with respect to Borrower or Guarantors and their Subsidiaries in the Loan
Documents shall be true and correct with respect to such Additional Guarantor;
(d) All covenants and agreements herein of the Borrower and
the Guarantors and their Subsidiaries shall be true and correct with respect to
such Additional Guarantor;
(e) No Default or Event of Default shall exist or might
exist in the event that such Subsidiary becomes an Additional Guarantor or
acquires such assets;
(f) Such Additional Guarantor executes and delivers to Agent
a Guaranty;
(g) All of the conditions set forth in Section 10 applicable
to Guarantors or Loan Documents executed by Guarantors shall have been
satisfied; and
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(h) The Real Estate assets acquired or owned by such
Additional Guarantor shall qualify as Unencumbered Operating Properties
hereunder, and such assets, when taken together with the other Real Estate
assets owned by the Guarantors, shall not cause the Borrower to be in violation
of the sixty percent (60%) limitation on the ownership of Unencumbered Operating
Properties by entities other than the Borrower.
Section 8. CERTAIN NEGATIVE COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as any Loan or Note is
outstanding or any of the Banks has any obligation to make any Loans:
Section 8.1. Restrictions on Indebtedness. The Borrower will not, and
will not permit any of its Subsidiaries to, create, incur, assume, guarantee or
be or remain liable, contingently or otherwise, with respect to any Indebtedness
other than:
(a) Indebtedness to the Banks arising under any of the Loan
Documents;
(b) current liabilities of the Borrower and its Subsidiaries
incurred in the ordinary course of business but not incurred through (i) the
borrowing of money, or (ii) the obtaining of credit except for credit on an open
account basis customarily extended and in fact extended in connection with
normal purchases of goods and services;
(c) Indebtedness in respect of taxes, assessments,
governmental charges or levies and claims for labor, materials and supplies to
the extent that payment therefor shall not at the time be required to be made in
accordance with the provisions of Section 7.8;
(d) Indebtedness in respect of judgments or awards that have
been in force for less than the applicable period for taking an appeal so long
as execution is not levied thereunder or in respect of which the Borrower shall
at the time in good faith be prosecuting an appeal or proceedings for review and
in respect of which a stay of execution shall have been obtained pending such
appeal or review;
(e) endorsements for collection, deposit or negotiation and
warranties of products or services, in each case incurred in the ordinary course
of business;
(f) Indebtedness in respect of reverse repurchase agreements
having a term of not more than 180 days with respect to Investments described in
Section 8.3(d) or (e);
(g) subject to the provisions of Section 9, secured
Indebtedness of the Borrower and its Subsidiaries in an aggregate outstanding
principal amount not exceeding forty percent (40%) of the Borrower's
Consolidated Total Assets;
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(h) subject to the provisions of Section 9, secured or
unsecured recourse Indebtedness (including letters of credit issued by the
Borrower or its Subsidiaries) of the Borrower and its Subsidiaries (excluding
Construction Loan Guaranties, but only for so long as such obligations remain
contingent or no event has occurred which would result in the Borrower or its
Subsidiary having liability thereunder), provided that (i) the aggregate
outstanding principal amount of such Indebtedness (excluding the Obligations)
shall not exceed fifty percent (50%) of the Borrower's Consolidated Total
Assets, and (ii) with respect to any Indebtedness of the Borrower and its
Subsidiaries of the type described in clauses (a) and (b) of the definition of
"Indebtedness" (other than existing Indebtedness of the Borrower and its
Subsidiaries described on Schedule 8.1(h) hereto) (A) at the time such
Indebtedness is issued the scheduled maturity date of such Indebtedness is not
sooner than 180 days after the Maturity Date (after giving effect to any
extension of the Maturity Date which may have been requested by the Borrower
prior to the issuance of such Indebtedness or approved by the Banks, whether or
not the same has become effective), and (B) any covenants (whether affirmative
or negative), restrictions or defaults or events of default imposed upon the
Borrower or its Subsidiaries in connection with such Indebtedness shall not
individually or in the aggregate be more restrictive against the Borrower than
the covenants (whether affirmative or negative), restrictions or defaults or
events of default imposed pursuant to this Agreement or the other Loan
Documents, and provided further that neither the Borrower nor any of its
Subsidiaries shall incur any of the Indebtedness described in this Section
8.1(h) unless it shall have provided to the Banks (1) prior written notice of
the proposed issuance of such Indebtedness, a statement that no Default or Event
of Default exists and a certificate that the Borrower will be in compliance with
its covenants referred to therein after giving effect to such incurrence, (2)
evidence reasonably satisfactory to the Agent that the Rating Agencies have been
advised of the issuance of such Indebtedness within five (5) days of such
issuance, and (3) upon the request of Agent, evidence that the annual rating
maintenance fee has been paid to the Rating Agencies; and
(i) Indebtedness of the Borrower and its Subsidiaries in
respect of Construction Loan Guaranties in an aggregate amount not exceeding ten
percent (10%) of Borrower's Consolidated Total Assets.
Section 8.2. Restrictions on Liens, Etc. The Borrower will not, and will
not permit its Subsidiaries to, (a) create or incur or suffer to be created or
incurred or to exist any lien, encumbrance, mortgage, pledge, negative pledge,
charge, restriction or other security interest of any kind upon any of its
property or assets of any character whether now owned or hereafter acquired, or
upon the income or profits therefrom; (b) transfer any of its property or assets
or the income or profits therefrom for the purpose of subjecting the same to the
payment of Indebtedness or performance of any other obligation in priority to
payment of its general creditors; (c) acquire, or agree or have an option to
acquire, any property or assets upon conditional sale or other title retention
or purchase money security agreement, device or arrangement; (d) suffer to exist
for a period of more than 30 days after the same shall have been incurred any
Indebtedness or claim or demand against it that if unpaid might by law or upon
bankruptcy or insolvency, or otherwise, be given any priority whatsoever over
its general
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creditors, subject to Borrower's rights pursuant to Section 7.8; (e) assign,
pledge or encumber any accounts, contract rights, general intangibles, chattel
paper or instruments, with or without recourse; or (f) incur or maintain any
obligation to any holder of Indebtedness of the Borrower or such Subsidiary
which prohibits the creation or maintenance of any lien securing the Obligations
(collectively "Liens"); provided that the Borrower and any Subsidiary of the
Borrower may create or incur or suffer to be created or incurred or to exist:
(i) liens on properties to secure taxes, assessments
and other governmental charges or claims for labor, material or supplies
in respect of obligations not overdue;
(ii) liens on properties in respect of judgments,
awards or indebtedness, the Indebtedness with respect to which is
permitted by Section 8.1(d) or Section 8.1(g);
(iii) encumbrances on properties consisting of
easements, rights of way, zoning restrictions, restrictions on the use
of real property, landlord's or lessor's liens under leases to which the
Borrower or any Subsidiary of the Borrower is a party, and other minor
non-monetary liens or encumbrances none of which interferes materially
with the use of the property affected in the ordinary conduct of the
business of the Borrower or its Subsidiaries, which defects do not
individually or in the aggregate have a materially adverse effect on the
business of the Borrower individually or of the Borrower and its
Subsidiaries on a consolidated basis;
(iv) liens on Real Estate and Short-term Investments
securing Indebtedness permitted by Section 8.1(g) or Section 8.1(h); and
(v) liens in favor of the Agent and the Banks as
security for the Obligations.
Section 8.3. Restrictions on Investments. The Borrower will not, and
will not permit its Subsidiaries to, make or permit to exist or to remain
outstanding any Investment except Investments in:
(a) marketable direct or guaranteed obligations of the
United States of America that mature within one (1) year from the date of
purchase by the Borrower or its Subsidiary;
(b) marketable direct obligations of any of the following:
Federal Home Loan Mortgage Corporation, Student Loan Marketing Association,
Federal Home Loan Banks, Federal National Mortgage Association, Government
National Mortgage Association, Bank for Cooperatives, Federal Intermediate
Credit Banks, Federal Financing Banks, Export-Import Bank of the United States,
Federal Land Banks, or any other agency or instrumentality of the United States
of America;
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(c) demand deposits, certificates of deposit, bankers
acceptances and time deposits of United States banks having total assets in
excess of $100,000,000; provided, however, that the aggregate amount at any time
so invested with any single bank having total assets of less than $1,000,000,000
will not exceed $2,500,000;
(d) securities commonly known as "commercial paper" issued
by a corporation organized and existing under the laws of the United States of
America or any State which at the time of purchase are rated by Moody's
Investors Service, Inc. or by Standard & Poor's Corporation at not less than "P
1" if then rated by Moody's Investors Service, Inc., and not less than "A 1", if
then rated by Standard & Poor's Corporation;
(e) mortgage-backed securities guaranteed by the Government
National Mortgage Association, the Federal National Mortgage Association or the
Federal Home Loan Mortgage Corporation and other mortgage-backed bonds which at
the time of purchase are rated by Moody's Investors Service, Inc. or by Standard
& Poor's Corporation at not less than "Aa" if then rated by Moody's Investors
Service, Inc. and not less than "AA" if then rated by Standard & Poor's
Corporation;
(f) repurchase agreements having a term not greater than 90
days and fully secured by securities described in the foregoing subsection (a),
(b) or (e) with banks described in the foregoing subsection (c) or with
financial institutions or other corporations having total assets in excess of
$500,000,000;
(g) shares of so-called "money market funds" registered with
the SEC under the Investment Company Act of 1940 which maintain a level
per-share value, invest principally in investments described in the foregoing
subsections (a) through (f) and have total assets in excess of $50,000,000;
(h) Subject to the provisions of Section 9.6 hereof,
investments in fee interests in Real Estate utilized principally for Retail Uses
including earnest money deposits relating thereto and transaction costs;
(i) Investments in Affiliates of the Borrower the accounts
of which are not consolidated with the accounts of Borrower or other entities
the accounts of which are not consolidated with the accounts of Borrower and
Investments in mortgages and notes receivables (including notes receivable from
Subsidiaries and Affiliates), provided that in no event shall such Investments
(including the principal amount payable pursuant to such notes) exceed twenty
percent (20%) of the Borrower's Consolidated Total Assets. Investments described
in Section 8.3(i) shall not be included for the purpose of the foregoing limit.
For the purposes hereof, notes receivable from Subsidiaries and Affiliates shall
be valued at face value subject to impairment;
(j) Investments in mortgages and notes receivables from
Subsidiaries that are wholly-owned by the Borrower;
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(k) Investments in Subsidiaries of the Borrower;
(l) Subject to the provisions of Section 9.6 hereof,
investments in undeveloped or non-income producing land and Opportunity
Properties;
(m) Investments in any common or preferred stock issued by
the Borrower which has been repurchased by the Borrower or any of its
Subsidiaries, provided that in no event shall such Investments exceed two
percent (2%) of the market capitalization of the Borrower; and
(n) Any other Investment deemed appropriate by the Borrower,
provided that in no event shall such Investments exceed $5,000,000.00.
Section 8.4. Merger, Consolidation. The Borrower will not, and will not
permit any of its Subsidiaries to, become a party to any merger, consolidation
or other business combination, or agree to effect any asset acquisition, stock
acquisition (except as otherwise provided herein) or other acquisition without
the prior written consent of the Majority Banks, which consent shall not be
unreasonably withheld, except (i) the merger or consolidation of one or more of
the Subsidiaries of the Borrower with and into the Borrower and (ii) the merger
or consolidation of two or more Subsidiaries of the Borrower.
Section 8.5. Sale and Leaseback. The Borrower will not, and will not
permit its Subsidiaries to, enter into any arrangement, directly or indirectly,
whereby the Borrower or any Subsidiary thereof shall sell or transfer any Real
Estate owned by it in order that then or thereafter such Person shall lease back
such Real Estate; provided that the foregoing limitation shall not apply with
respect to the administrative office of the Borrower.
Section 8.6. Compliance with Environmental Laws. The Borrower will not,
and will not permit the Guarantors or any of their respective Subsidiaries to,
do any of the following: (a) use any of the Real Estate or any portion thereof
as a facility for the handling, processing, storage or disposal of Hazardous
Substances, except for Hazardous Substances used in the ordinary course of
business in the operation of properties for Retail Uses and in compliance with
all applicable Environmental Laws, (b) cause or permit to be located on any of
the Real Estate any underground tank or other underground storage receptacle for
Hazardous Substances except in full compliance with Environmental Laws, (c)
generate any Hazardous Substances on any of the Real Estate except in full
compliance with Environmental Laws, (d) conduct any activity at any Real Estate
or use any Real Estate in any manner so as to cause a Release of Hazardous
Substances on, upon or into the Real Estate or any surrounding properties or any
threatened Release of Hazardous Substances which might give rise to liability
under CERCLA or any other Environmental Law, or (e) directly or indirectly
transport or arrange for the transport of any Hazardous Substances (except in
compliance with all Environmental Laws).
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The Borrower shall:
(i) in the event of any change in Environmental Laws
governing the assessment, release or removal of Hazardous Substances,
which change would lead a prudent lender to require additional testing
to avail itself of any statutory insurance or limited liability, take
all action (including, without limitation, the conducting of engineering
tests at the sole expense of the Borrower) to confirm that no Hazardous
Substances are or ever were Released or disposed of on the Real Estate;
and
(ii) if any Release or disposal of Hazardous
Substances shall occur or shall have occurred on the Real Estate of the
Borrower, the Guarantors or any of their respective Subsidiaries
(including without limitation any such Release or disposal occurring
prior to the acquisition of such Real Estate by such Person) cause the
prompt containment and removal of such Hazardous Substances and
remediation of such Real Estate in full compliance with all applicable
laws and regulations; provided, that the Borrower shall be deemed to be
in compliance with Environmental Laws for the purpose of this clause
(ii) so long as it or a responsible third party with sufficient
financial resources is taking reasonable action to remediate or manage
any event of noncompliance to the satisfaction of the Majority Banks and
no action shall have been commenced by any enforcement agency. The
Majority Banks may engage their own environmental engineer to review the
environmental assessments and the Borrower's compliance with the
covenants contained herein.
At any time after an Event of Default shall have occurred hereunder, or,
whether or not an Event of Default shall have occurred, at any time that the
Agent or the Majority Banks shall have reasonable grounds to believe that a
Release or threatened Release of Hazardous Substances may have occurred,
relating to any Real Estate, or that any of the Real Estate is not in compliance
with the Environmental Laws, the Agent may at its election (and will at the
request of the Majority Banks) obtain such environmental assessments of such
Real Estate prepared by an environmental engineer as may be necessary or
advisable for the purpose of evaluating or confirming (i) whether any Hazardous
Substances are present in the soil or water at or adjacent to such Real Estate
and (ii) whether the use and operation of such Real Estate comply with all
Environmental Laws. Environmental assessments may include detailed visual
inspections of such Real Estate including, without limitation, any and all
storage areas, storage tanks, drains, dry wells and leaching areas, and the
taking of soil samples, as well as such other investigations or analyses as are
necessary or appropriate for a complete determination of the compliance of such
Real Estate and the use and operation thereof with all applicable Environmental
Laws. All such environmental assessments shall be at the sole cost and expense
of the Borrower.
Section 8.7. Distributions. The Borrower shall not make any
Distributions which would cause it to violate any of the following covenants:
(a) The Borrower shall not pay any Distribution to the
shareholders of the Borrower if such Distribution is in excess of the amount
which, when added to the amount of all
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other Distributions paid in the same fiscal quarter and the preceding three (3)
fiscal quarters, would exceed ninety percent (90%) of its Funds from Operations
for the four consecutive fiscal quarters ending prior to the quarter in which
such Distribution is paid or such greater amount as the Majority Banks may
approve as a result of gains on the sale of assets of the Borrower; and
(b) In the event that an Event of Default shall have
occurred and be continuing, the Borrower shall make no Distributions other than
Distribution in an amount equal to the lesser of (i) the aggregate amount
permitted pursuant to Section 8.7 (a) for such period, and (ii) the minimum
Distributions required under the Code to maintain the REIT Status of the
Borrower, as evidenced by a certification of the principal financial or
accounting officer of the Borrower containing calculations in reasonable detail
satisfactory in form and substance to Agent; provided, however, the Majority
Banks may in their sole discretion permit the Borrower to make the Distributions
described in Section 8.7(b)(ii) in the event that such Distributions are greater
than the Distributions described in Section 8.7(b)(i).
Section 8.8. Asset Sales. Neither the Borrower nor any Subsidiary
thereof shall sell, transfer or otherwise dispose of any Real Estate or any of
the Unencumbered Operating Properties in excess of $25,000,000.00 (except as the
result of a condemnation or casualty and except for the granting of Permitted
Liens, as applicable) unless there shall have been delivered to the Banks a
statement that no Default or Event of Default exists or will exist and a
certification that the Borrower will be in compliance with its covenants
referred to therein after giving effect to such sale, transfer or other
disposition.
Section 8.9. Development Activity. Neither the Borrower nor any
Subsidiary thereof shall engage, directly or indirectly, in the development of
Real Estate or otherwise except for the development of Real Estate to be used
principally for Retail Uses, provided that the aggregate cost of acquisition and
development of such properties Under Development (assuming the full cost of
developing such property) at any time shall not exceed twenty percent (20%) of
the Borrower's Consolidated Total Assets. For the purpose of this Section 8.9
only, Consolidated Total Assets shall be determined by subtracting the costs
incurred to date of any project Under Development and adding thereto the
estimated full cost of developing such project. For purposes of this Section
8.9, the term "development" shall include new construction or the substantial
renovation of improvements to real property, but shall not include the addition
of amenities or other related facilities to existing Real Estate which is
already used principally for Retail Uses. Without limiting the foregoing, the
Borrower acknowledges that for the purposes of this Agreement, except for any
rights pursuant to option agreements that do not obligate the Borrower or any
Subsidiary to act pursuant thereto or pursuant to other agreements that limit
the recourse of the other party thereto upon a default or breach by Borrower or
any Subsidiary thereunder to a reasonable earnest money deposit as liquidated
damages, (a) any interest by the Borrower or any Subsidiary in a property which
is proposed to be developed, or any interest therein pursuant to which the
Borrower or any Subsidiary has the right to approve site plans or other plans
and specifications or pursuant to which such parties' obligations are
conditioned upon the achievement of certain leasing levels, (b) any agreement by
the Borrower or any Subsidiary
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which obligates such party to contribute or otherwise advance funds in
connection with or upon completion of the development of a property, or (c) any
acquisition of a property which is proposed to be developed or which is under
development and lease-up at the time such agreement is entered into, shall be
considered a "development" for the purposes of this Section 8.9. Notwithstanding
the foregoing, but except as otherwise approved by the Agent, neither the
Borrower, any Guarantor nor any Subsidiary of Borrower shall commence any
development unless at least seventy percent (70%) of the gross leasable area of
said project, including all anchors, is subject to a fully executed lease
pursuant to which such tenants are unconditionally committed to take occupancy
upon completion of such construction. Nothing herein shall prohibit the Borrower
or any Subsidiary thereof from entering into an agreement to acquire Real Estate
which has been developed and initially leased by another Person.
Section 8.10. Sources of Capital. The Borrower shall, at all times that
the Borrower or any of its Subsidiaries is engaging in any development as
provided in Section 8.9 or has entered into any agreement to provide funds with
respect to a development, maintain or have identified available sources of
capital equal to the total cost to acquire and complete such developments and to
satisfy such funding obligations, which sources of capital shall be acceptable
to the Agent in its reasonable discretion. Amounts available to be disbursed for
such purposes pursuant to this Agreement may be considered as a source of
capital for the purposes of this Section 8.10.
Section 8.11. Restriction on Prepayment of Indebtedness. Neither
Borrower nor any of its Subsidiaries shall prepay, redeem or purchase the
principal amount, in whole or in part, of any Indebtedness other than the
Obligations after the occurrence of any Event of Default; provided, however,
that this Section 8.11 shall not prohibit the prepayment of Indebtedness which
is financed solely from the proceeds of a new loan which would otherwise be
permitted by the terms of Section 8.1.
Section 8.12. Interest in Guarantors. The Borrower will not, directly or
indirectly, make or permit to be made, by voluntary or involuntary means, any
sale, assignment, transfer, disposition, mortgage, pledge, hypothecation or
encumbrance of its interest in any Guarantor or any dilution of its interest in
any Guarantor.
Section 9. FINANCIAL COVENANTS OF THE BORROWER.
Section 9.1. Borrowing Base Covenant of the Borrower. The Borrower
covenants and agrees that, so long as any Loan or Note is outstanding or any
Bank has any obligation to make any Loans, the Borrower will not permit the
outstanding principal balance of the Loans as of the date of determination to be
greater than the Borrowing Base as determined as of the same date.
Section 9.2. Liabilities to Assets Ratio. The Borrower will not permit
the ratio of the Consolidated Total Liabilities of the Borrower and its
Subsidiaries to the Consolidated Total Assets of the Borrower and its
Subsidiaries to exceed 0.50 to 1.
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Section 9.3. Interest Coverage. The Borrower will not permit the sum
equal to (a) the Consolidated Operating Cash Flow of the Borrower and its
Subsidiaries for any period of four consecutive fiscal quarters (treated as a
single accounting period) (the "Test Period") minus (b) the Capital Improvement
Reserve for all Real Estate of the Borrower and its Subsidiaries for the Test
Period to be less than two (2) times the interest expense (including capitalized
interest) of the Borrower and its Subsidiaries for the Test Period. In the event
that the Borrower and its Subsidiaries shall not have any of the foregoing
components for four (4) consecutive fiscal quarters, then such components shall
be annualized in such manner as the Majority Banks shall reasonably determine.
Section 9.4. Fixed Charge Coverage. The Borrower will not permit the
ratio of the Consolidated Operating Cash Flow of the Borrower and its
Subsidiaries for the Test Period to be less than 1.75 times the sum of (a) the
Debt Service of the Borrower and its Subsidiaries plus (b) the aggregate Capital
Improvement Reserve for all of the Real Estate of the Borrower and its
Subsidiaries for the Test Period. In the event that the Borrower and its
Subsidiaries shall not have any of the foregoing components for four (4)
consecutive fiscal quarters, then such components shall be annualized in such
manner as the Majority Banks shall reasonably determine.
Section 9.5. Shareholders' Equity. The Borrower will not permit the
Shareholders' Equity to be less than the sum of (a) $350,000,000.00 plus (b)
ninety percent (90%) of the net proceeds from any Equity Offering of the
Borrower made after the Closing Date.
Section 9.6. Real Estate Assets. The Borrower shall not permit its
direct or indirect interest in (a) undeveloped or non-income producing land
purchased for speculative purposes (whether through fee simple ownership,
Subsidiaries, Affiliates, partnership, limited liability company or joint
venture interests, mortgages or otherwise), determined based on undepreciated
cost, to exceed five percent (5%) of the Borrowers' Consolidated Total Assets
unless otherwise approved by the Agent (provided that such land shall be zoned
for Retail Uses and all necessary infrastructure (including roadways and
utilities necessary for the use and enjoyment of such property when developed)
shall be available at the boundaries of the property), and (b) Opportunity
Properties, determined based on undepreciated cost, to exceed fifteen percent
(15%) of the Borrower's Consolidated Total Assets.
Section 10. CLOSING CONDITIONS.
The obligations of the Agent and the Banks to make the initial Loans
shall be subject to the satisfaction of the following conditions precedent on or
prior to June 12, 1997:
Section 10.1. Loan Documents. Each of the Loan Documents shall have been
duly executed and delivered by the respective parties thereto, shall be in full
force and effect and shall be in form and substance satisfactory to the Majority
Banks. The Agent shall have received a fully
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executed copy of each such document, except that each Bank shall have received a
fully executed counterpart of its Note.
Section 10.2. Certified Copies of Organizational Documents. The Agent
shall have received from the Borrower a copy, certified as of a recent date by
the appropriate officer of each State in which the Borrower and the Guarantors,
as applicable, is organized or in which the Unencumbered Operating Properties
are located and by a duly authorized officer of such Person to be true and
complete, of (a) the corporate charter of the Borrower and the Guarantors, as
applicable, or (b) its qualification to do business, as applicable, as in effect
on such date of certification.
Section 10.3. Bylaws; Resolutions. All action on the part of the
Borrower and the Guarantors, as applicable, necessary for the valid execution,
delivery and performance by such Person of this Agreement and the other Loan
Documents to which such Person is or is to become a party shall have been duly
and effectively taken, and evidence thereof satisfactory to the Agent shall have
been provided to the Agent. The Agent shall have received from the Borrower and
the Guarantors true copies of their respective bylaws and the resolutions
adopted by their respective boards of directors authorizing the transactions
described herein, each certified by its secretary as of a recent date to be true
and complete.
Section 10.4. Incumbency Certificate; Authorized Signers. The Agent
shall have received from the Borrower and the Guarantors an incumbency
certificate, dated as of the Closing Date, signed by a duly authorized partner
or officer of such Person and giving the name and bearing a specimen signature
of each individual who shall be authorized to sign, in the name and on behalf of
such Person, each of the Loan Documents to which such Person is or is to become
a party. The Agent shall have also received from the Borrower a certificate,
dated as of the Closing Date, signed by a duly authorized officer of the
Borrower and giving the name of and specimen signature of each individual who
shall be authorized to make Loan and Conversion Requests and to give notices and
to take other action on behalf of the Borrower under the Loan Documents.
Section 10.5. Opinion of Counsel. The Agent shall have received a
favorable opinion addressed to the Banks and the Agent and dated as of the
Closing Date, in form and substance satisfactory to the Agent, from counsel of
the Borrower and the Guarantors, as to such matters as the Agent shall
reasonably request.
Section 10.6. Payment of Fees. The Borrower shall have paid to the Agent
the fees required to be paid as of the Closing Date pursuant to Section 4.2.
Section 10.7. Performance; No Default. The Borrower shall have performed
and complied with all terms and conditions herein required to be performed or
complied with by it on or prior to the Closing Date, and on the Closing Date
there shall exist no Default or Event of Default.
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Section 10.8. Representations and Warranties. The representations and
warranties made by the Borrower and the Guarantors in the Loan Documents or
otherwise made by or on behalf of the Borrower, the Guarantors or any
Subsidiaries thereof in connection therewith or after the date thereof shall
have been true and correct in all material respects when made and shall also be
true and correct in all material respects on the Closing Date.
Section 10.9. Proceedings and Documents. All proceedings in connection
with the transactions contemplated by this Agreement and the other Loan
Documents shall be reasonably satisfactory to the Agent and the Agent's Special
Counsel in form and substance, and the Agent shall have received all information
and such counterpart originals or certified copies of such documents and such
other certificates, opinions or documents as the Agent and the Agent's Special
Counsel may reasonably require.
Section 10.10. Compliance Certificate. A Compliance Certificate dated as
of the date of the Closing Date demonstrating compliance with each of the
covenants calculated therein as of the most recent fiscal quarter end for which
the Borrower has provided financial statements under Section 6.4 adjusted in the
best good faith estimate of the Borrower dated as of the date of the Closing
Date shall have been delivered to the Agent.
Section 10.11. Other. The Agent shall have reviewed such other
documents, instruments, certificates, opinions, assurances, consents and
approvals as the Agent or the Agent's Special Counsel may reasonably have
requested.
Section 11. CONDITIONS TO ALL BORROWINGS.
The obligations of the Banks to make any Loan, whether on or after the
Closing Date, shall also be subject to the satisfaction of the following
conditions precedent:
Section 11.1. Prior Conditions Satisfied. All conditions set forth in
Section 10 shall continue to be satisfied as of the date upon which any Loan is
to be made.
Section 11.2. Representations True; No Default. Each of the
representations and warranties made by or on behalf of the Borrower or the
Guarantors contained in this Agreement, the other Loan Documents or in any
document or instrument delivered pursuant to or in connection with this
Agreement shall be true as of the date as of which they were made and shall also
be true at and as of the time of the making of such Loan, with the same effect
as if made at and as of that time (except to the extent of changes resulting
from transactions contemplated or permitted by this Agreement and the other Loan
Documents and changes occurring in the ordinary course of business that singly
or in the aggregate are not materially adverse, and except to the extent that
such representations and warranties relate expressly to an earlier date) and no
Default or Event of Default shall have occurred and be continuing.
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Section 11.3. No Legal Impediment. There shall be no law or regulations
thereunder or interpretations thereof that in the reasonable opinion of any Bank
would make it illegal for such Bank to make such Loan.
Section 11.4. Governmental Regulation. Each Bank shall have received
such statements in substance and form reasonably satisfactory to such Bank as
such Bank shall require for the purpose of compliance with any applicable
regulations of the Comptroller of the Currency or the Board of Governors of the
Federal Reserve System.
Section 11.5. Proceedings and Documents. All proceedings in connection
with the Loan shall be satisfactory in substance and in form to the Agent, and
the Agent shall have received all information and such counterpart originals or
certified or other copies of such documents as the Agent may reasonably request.
Section 11.6. Borrowing Documents. In the case of any request for a
Loan, the Agent shall have received a copy of the request for a Loan required by
Section 2.6 in the form of Exhibit C hereto, fully completed.
Section 12. EVENTS OF DEFAULT; ACCELERATION; ETC.
Section 12.1. Events of Default and Acceleration. If any of the
following events ("Events of Default" or, if the giving of notice or the lapse
of time or both is required, then, prior to such notice or lapse of time,
"Defaults") shall occur:
(a) the Borrower shall fail to pay any principal of the
Loans when the same shall become due and payable, whether at the stated date of
maturity or any accelerated date of maturity or at any other date fixed for
payment;
(b) the Borrower shall fail to pay any interest on the Loans
or any other sums due hereunder or under any of the other Loan Documents, when
the same shall become due and payable, whether at the stated date of maturity or
any accelerated date of maturity or at any other date fixed for payment, and
such failure is not cured within five (5) days following receipt of written
notice of such default, provided, however, that no such cure period shall apply
to any payments due upon the maturity of the Notes;
(c) the Borrower shall fail to comply with any covenant
contained in Section 7.4(e), Section 7.14 or Section 7.15;
(d) the Borrower shall fail to comply with any covenant
contained in Section 9, and such failure shall continue for thirty (30) days
after written notice thereof shall have been given to the Borrower by the Agent;
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(e) any of the Borrower, the Guarantors or any of their
respective Subsidiaries shall fail to perform any other term, covenant or
agreement contained herein or in any of the other Loan Documents (other than
those specified above in this Section 12), and such failure is not cured within
thirty (30) days following receipt of written notice of such default, provided,
that the provisions of this Section 12.1(e) shall not pertain to any default
excluded from any provision of cure of defaults contained in any other of the
Loan Documents.
(f) any representation or warranty made by or on behalf of
the Borrower, the Guarantors or any of their respective Subsidiaries in this
Agreement or any other Loan Document, or in any report, certificate, financial
statement, request for a Loan, or in any other document or instrument delivered
pursuant to or in connection with this Agreement, any advance of a Loan or any
of the other Loan Documents shall prove to have been false or misleading in any
respect upon the date when made or deemed to have been made or repeated;
(g) any of the Borrower, the Guarantors or any of their
respective Subsidiaries shall fail to pay at maturity, or within any applicable
period of grace, any recourse obligation for borrowed money or credit received
or other Indebtedness, or fail to observe or perform any material term, covenant
or agreement contained in any agreement by which it is bound, evidencing or
securing any such borrowed money or credit received or other Indebtedness for
such period of time as would permit (assuming the giving of appropriate notice
if required) the holder or holders thereof or of any obligations issued
thereunder to accelerate the maturity thereof;
(h) any of the Borrower, the Guarantors or any of their
respective Subsidiaries, (i) shall make an assignment for the benefit of
creditors, or admit in writing its general inability to pay or generally fail to
pay its debts as they mature or become due, or shall petition or apply for the
appointment of a trustee or other custodian, liquidator or receiver of any such
Person or of any substantial part of the assets of any thereof, (ii) shall
commence any case or other proceeding relating to any such Person under any
bankruptcy, reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation or similar law of any jurisdiction, now or hereafter
in effect, or (iii) shall take any action to authorize or in furtherance of any
of the foregoing;
(i) a petition or application shall be filed for the
appointment of a trustee or other custodian, liquidator or receiver of any of
the Borrower, the Guarantors or any of their respective Subsidiaries or any
substantial part of the assets of any thereof, or a case or other proceeding
shall be commenced against any such Person under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution or liquidation or
similar law of any jurisdiction, now or hereafter in effect, and any such Person
shall indicate its approval thereof, consent thereto or acquiescence therein or
such petition, application, case or proceeding shall not have been dismissed
within 60 days following the filing or commencement thereof;
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(j) a decree or order is entered appointing any such
trustee, custodian, liquidator or receiver or adjudicating any of the Borrower,
the Guarantors or any of their respective Subsidiaries bankrupt or insolvent, or
approving a petition in any such case or other proceeding, or a decree or order
for relief is entered in respect of any such Person, in an involuntary case
under federal bankruptcy laws as now or hereafter constituted;
(k) there shall remain in force, undischarged, unsatisfied
and unstayed, for more than 60 days, whether or not consecutive, any uninsured
final judgment against any of the Borrower, the Guarantors or any of their
respective Subsidiaries that, with other outstanding uninsured final judgments,
undischarged, against such Persons exceeds in the aggregate $5,000,000.00;
(l) if any of the Loan Documents shall be canceled,
terminated, revoked or rescinded otherwise than in accordance with the terms
thereof or with the express prior written agreement, consent or approval of the
Banks, or any action at law, suit in equity or other legal proceeding to cancel,
revoke or rescind any of the Loan Documents shall be commenced by or on behalf
of any of the Borrower, the Guarantors or any of their respective holders of
Voting Interests, or any court or any other governmental or regulatory authority
or agency of competent jurisdiction shall make a determination that, or issue a
judgment, order, decree or ruling to the effect that, any one or more of the
Loan Documents is illegal, invalid or unenforceable in accordance with the terms
thereof;
(m) any dissolution, termination, partial or complete
liquidation, merger or consolidation of any of the Borrower, the Guarantors or
any sale, transfer or other disposition of the assets of any of the Borrower,
the Guarantors other than as permitted under the terms of this Agreement or the
other Loan Documents;
(n) any suit or proceeding shall be filed against any of the
Borrower, or the Guarantors or any of their respective assets which in the good
faith business judgment of the Majority Banks after giving consideration to the
likelihood of success of such suit or proceeding and the availability of
insurance to cover any judgment with respect thereto and based on the
information available to them, if adversely determined, would have a materially
adverse affect on the ability of the Borrower or a Guarantor to perform each and
every one of its obligations under and by virtue of the Loan Documents;
(o) any of the Borrower or the Guarantors shall be indicted
for a federal crime, a punishment for which could include the forfeiture of the
Borrower or the Guarantor;
(p) with respect to any Guaranteed Pension Plan, an ERISA
Reportable Event shall have occurred and the Majority Banks shall have
determined in their reasonable discretion that such event reasonably could be
expected to result in liability of any of the Borrower, the Guarantors or any of
their Subsidiaries to the PBGC or such Guaranteed Pension Plan in an
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aggregate amount exceeding $1,000,000 and such event in the circumstances
occurring reasonably could constitute grounds for the termination of such
Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate
United States District Court of a trustee to administer such Guaranteed Pension
Plan; or a trustee shall have been appointed by the United States District Court
to administer such Plan; or the PBGC shall have instituted proceedings to
terminate such Guaranteed Pension Plan;
(q) any of the Guarantors denies that such Guarantor has any
liability or obligation under the Guaranty, or shall notify the Agent or any of
the Banks of such Guarantor's intention to attempt to cancel or terminate the
Guaranty, or shall fail to observe or comply with any term, covenant, condition
or agreement under the Guaranty;
(r) Gary Sabin shall, in the aggregate, own directly or
indirectly less than two percent (2.0%) of the issued and outstanding shares of
the capital stock of the Borrower, except as such ownership may be diluted to a
percentage approved by Agent as a result of an Equity Offering of the Borrower;
(s) Gary Sabin shall cease to be the Chairman and Chief
Executive Officer of, or Richard B. Muir shall cease to be the Chief Operating
Officer of, the Borrower and a competent and experienced successor for such
Person shall not be approved by the Majority Banks within six (6) months of such
event, such approval not to be unreasonably withheld; or
(t) any Event of Default as defined in any of the other Loan
Documents, shall occur;
then, and in any such event, the Agent may, and upon the request of the Majority
Banks shall, by notice in writing to the Borrower declare all amounts owing with
respect to this Agreement, the Notes and the other Loan Documents to be, and
they shall thereupon forthwith become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby expressly waived by the Borrower; provided that in the event of any Event
of Default specified in Section 12.1(h), Section 12.1(i) or Section 12.1(j), all
such amounts shall become immediately due and payable automatically and without
any requirement of notice from any of the Banks or the Agent. The Borrower and
any other Person shall be entitled to conclusively rely on a statement from the
Agent that it has the authority to act for and bind the Banks pursuant to this
Agreement and the other Loan Documents.
Notwithstanding the provisions of subsections (d) and (e) of Section
12.1, the cure periods provided therein shall not be allowed and the occurrence
of a Default thereunder immediately shall constitute an Event of Default for all
purposes of this Agreement and the other Loan Documents if, within the period of
twelve months immediately preceding the occurrence of such Default, there shall
have occurred two periods of cure or portions thereof under any one or more than
one of said subsections.
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Section 12.2. Termination of Commitments. If any one or more Events of
Default specified in Section 12.1(h), Section 12.1(i) or Section 12.1(j) shall
occur, then immediately and without any action on the part of the Agent or any
Bank any unused portion of the credit hereunder shall terminate and the Banks
shall be relieved of all obligations to make Loans to the Borrower. If any other
Event of Default shall have occurred, the Agent, upon the election of the
Majority Banks, may by notice to the Borrower terminate the obligation to make
Loans to the Borrower. No termination under this Section 12.2 shall relieve the
Borrower of its obligations to the Banks arising under this Agreement or the
other Loan Documents.
Section 12.3. Remedies. In case any one or more of the Events of Default
shall have occurred and be continuing, and whether or not the Banks shall have
accelerated the maturity of the Loans pursuant to Section 12.1, the Agent on
behalf of the Banks, may, with the consent of the Majority Banks but not
otherwise, proceed to protect and enforce their rights and remedies under this
Agreement, the Notes or any of the other Loan Documents by suit in equity,
action at law or other appropriate proceeding, whether for the specific
performance of any covenant or agreement contained in this Agreement and the
other Loan Documents or any instrument pursuant to which the Obligations are
evidenced, including to the full extent permitted by applicable law the
obtaining of the ex parte appointment of a receiver, and, if such amount shall
have become due, by declaration or otherwise, proceed to enforce the payment
thereof or any other legal or equitable right. No remedy herein conferred upon
the Agent or the holder of any Note is intended to be exclusive of any other
remedy and each and every remedy shall be cumulative and shall be in addition to
every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute or any other provision of law. In the event that all or any
portion of the Obligations is collected by or through an attorney-at-law, the
Borrower shall pay all costs of collection including, but not limited to,
reasonable attorney's fees not to exceed fifteen percent (15%) of such portion
of the Obligations.
Section 12.4. Distribution of Proceeds. In the event that, following the
occurrence or during the continuance of any Event of Default, any monies are
received in connection with the enforcement of any of the Loan Documents, or
otherwise with respect to the realization upon any of the assets of the Borrower
or any other Person liable with respect to the Obligations, such monies shall be
distributed for application as follows:
(a) First, to the payment of, or (as the case may be) the
reimbursement of, the Agent for or in respect of all reasonable costs, expenses,
disbursements and losses which shall have been incurred or sustained by the
Agent in connection with the collection of such monies by the Agent, for the
exercise, protection or enforcement by the Agent of all or any of the rights,
remedies, powers and privileges of the Agent under this Agreement or any of the
other Loan Documents or in support of any provision of adequate indemnity to the
Agent against any taxes or liens which by law shall have, or may have, priority
over the rights of the Agent to such monies;
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(b) Second, to all other Obligations in such order or
preference as the Majority Banks shall determine; provided, however, that (i)
Swing Loans shall be repaid first, (ii) distributions in respect of such other
Obligations shall be made pari passu among Obligations with respect to the
Agent's fee payable pursuant to Section 4.3 and all other Obligations, (iii) in
the event that any Bank shall have wrongfully failed or refused to make an
advance under Section 2.7 and such failure or refusal shall be continuing,
advances made by other Banks during the pendency of such failure or refusal
shall be entitled to be repaid as to principal and accrued interest in priority
to the other Obligations described in this subsection (b), and (iv) Obligations
owing to the Banks with respect to each type of Obligation such as interest,
principal, fees and expenses (but excluding Swing Loans), shall be made among
the Banks pro rata; and provided, further that the Majority Banks may in their
discretion make proper allowance to take into account any Obligations not then
due and payable; and
(c) Third, the excess, if any, shall be returned to the
Borrower or to such other Persons as are entitled thereto.
Section 13. SETOFF.
Regardless of the adequacy of any collateral, during the continuance of
any Event of Default, any deposits (general or specific, time or demand,
provisional or final, regardless of currency, maturity, or the branch of where
such deposits are held) or other sums credited by or due from any of the Banks
to the Borrower or the Guarantors and any securities or other property of the
Borrower or the Guarantors in the possession of such Bank may be applied to or
set off against the payment of Obligations of such Person and any and all other
liabilities, direct, or indirect, absolute or contingent, due or to become due,
now existing or hereafter arising, of such Person to such Bank. Each of the
Banks agrees with each other Bank that if such Bank shall receive from any of
the Borrower or the Guarantors, whether by voluntary payment, exercise of the
right of setoff, or otherwise, and shall retain and apply to the payment of the
Note or Notes held by such Bank (but excluding the Swing Loan Note) any amount
in excess of its ratable portion of the payments received by all of the Banks
with respect to the Notes held by all of the Banks, such Bank will make such
disposition and arrangements with the other Banks with respect to such excess,
either by way of distribution, pro tanto assignment of claims, subrogation or
otherwise as shall result in each Bank receiving in respect of the Notes held by
it its proportionate payment as contemplated by this Agreement; provided that if
all or any part of such excess payment is thereafter recovered from such Bank,
such disposition and arrangements shall be rescinded and the amount restored to
the extent of such recovery, but without interest.
Section 14. THE AGENT.
Section 14.1. Authorization. The Agent is authorized to take such action
on behalf of each of the Banks and to exercise all such powers as are hereunder
and under any of the other Loan Documents and any related documents delegated to
the Agent, together with such powers as are reasonably incident thereto,
provided that no duties or responsibilities not expressly assumed
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herein or therein shall be implied to have been assumed by the Agent. The
obligations of Agent hereunder are primarily administrative in nature, and
nothing contained in this Agreement or any of the other Loan Documents shall be
construed to constitute the Agent as a trustee for any Bank or to create an
agency or fiduciary relationship. The Borrower and any other Person shall be
entitled to conclusively rely on a statement from the Agent that it has the
authority to act for and bind the Banks pursuant to this Agreement and the other
Loan Documents.
Section 14.2. Employees and Agents. The Agent may exercise its powers
and execute its duties by or through employees or agents and shall be entitled
to take, and to rely on, advice of counsel concerning all matters pertaining to
its rights and duties under this Agreement and the other Loan Documents. The
Agent may utilize the services of such Persons as the Agent may reasonably
determine, and all reasonable fees and expenses of any such Persons shall be
paid by the Borrower.
Section 14.3. No Liability. Neither the Agent nor any of its
shareholders, directors, officers or employees nor any other Person assisting
them in their duties nor any agent, or employee thereof, shall be liable to any
of the Banks for any waiver, consent or approval given or any action taken, or
omitted to be taken, in good faith by it or them hereunder or under any of the
other Loan Documents, or in connection herewith or therewith, or be responsible
for the consequences of any oversight or error of judgment whatsoever, except
that the Agent or such other Person, as the case may be, may be liable for
losses due to its willful misconduct or gross negligence.
Section 14.4. No Representations. The Agent shall not be responsible for
the execution or validity or enforceability of this Agreement, the Notes, any of
the other Loan Documents or any instrument at any time constituting, or intended
to constitute, collateral security for the Notes, or for the value of any such
collateral security or for the validity, enforceability or collectability of any
such amounts owing with respect to the Notes, or for any recitals or statements,
warranties or representations made herein or in any of the other Loan Documents
or in any certificate or instrument hereafter furnished to it by or on behalf of
the Borrower or the Guarantors or any of their respective Subsidiaries, or be
bound to ascertain or inquire as to the performance or observance of any of the
terms, conditions, covenants or agreements herein or in any other of the Loan
Documents. The Agent shall not be bound to ascertain whether any notice,
consent, waiver or request delivered to it by the Borrower or the Guarantors or
any holder of any of the Notes shall have been duly authorized or is true,
accurate and complete. The Agent has not made nor does it now make any
representations or warranties, express or implied, nor does it assume any
liability to the Banks, with respect to the creditworthiness or financial
condition of the Borrower, the Guarantors or any of their respective
Subsidiaries, or the value of any assets of such Persons. Each Bank acknowledges
that it has, independently and without reliance upon the Agent or any other
Bank, and based upon such information and documents as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Bank also acknowledges that it will, independently and without
reliance upon the Agent or any other Bank, based upon such information and
documents as it deems appropriate at the time, continue to make its own
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credit analysis and decisions in taking or not taking action under this
Agreement and the other Loan Documents.
Section 14.5. Payments.
(a) A payment by the Borrower or the Guarantors to the Agent
hereunder or under any of the other Loan Documents for the account of any Bank
shall constitute a payment to such Bank. The Agent agrees to distribute to each
Bank not later than one Business Day after the Agent's receipt of good funds,
determined in accordance with the Agent's customary practices, such Bank's pro
rata share of payments received by the Agent for the account of the Banks except
as otherwise expressly provided herein or in any of the other Loan Documents.
(b) If in the opinion of the Agent the distribution of any
amount received by it in such capacity hereunder, under the Notes or under any
of the other Loan Documents might involve it in liability, it may refrain from
making distribution until its right to make distribution shall have been
adjudicated by a court of competent jurisdiction. If a court of competent
jurisdiction shall adjudge that any amount received and distributed by the Agent
is to be repaid, each Person to whom any such distribution shall have been made
shall either repay to the Agent its proportionate share of the amount so
adjudged to be repaid or shall pay over the same in such manner and to such
Persons as shall be determined by such court.
(c) Notwithstanding anything to the contrary contained in
this Agreement or any of the other Loan Documents, any Bank that fails (i) to
make available to the Agent its pro rata share of any Loan or (ii) to comply
with the provisions of Section 13 with respect to making dispositions and
arrangements with the other Banks, where such Bank's share of any payment
received, whether by setoff or otherwise, is in excess of its pro rata share of
such payments due and payable to all of the Banks, in each case as, when and to
the full extent required by the provisions of this Agreement, shall be deemed
delinquent (a "Delinquent Bank") and shall be deemed a Delinquent Bank until
such time as such delinquency is satisfied. A Delinquent Bank shall be deemed to
have assigned any and all payments due to it from the Borrower and the
Guarantors, whether on account of outstanding Loans, interest, fees or
otherwise, to the remaining nondelinquent Banks for application to, and
reduction of, their respective pro rata shares of all outstanding Loans. The
Delinquent Bank hereby authorizes the Agent to distribute such payments to the
nondelinquent Banks in proportion to their respective pro rata shares of all
outstanding Loans. A Delinquent Bank shall be deemed to have satisfied in full a
delinquency when and if, as a result of application of the assigned payments to
all outstanding Loans of the nondelinquent Banks or as a result of other
payments by the Delinquent Banks to the nondelinquent Banks, the Banks'
respective pro rata shares of all outstanding Loans have returned to those in
effect immediately prior to such delinquency and without giving effect to the
nonpayment causing such delinquency.
Section 14.6. Holders of Notes. Subject to the terms of Article 18, the
Agent may deem and treat the payee of any Note as the absolute owner or
purchaser thereof for all purposes hereof
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until it shall have been furnished in writing with a different name by such
payee or by a subsequent holder, assignee or transferee.
Section 14.7. Indemnity. The Banks ratably agree hereby to indemnify and
hold harmless the Agent from and against any and all claims, actions and suits
(whether groundless or otherwise), losses, damages, costs, expenses (including
any expenses for which the Agent has not been reimbursed by the Borrower as
required by Section 15), and liabilities of every nature and character arising
out of or related to this Agreement, the Notes, or any of the other Loan
Documents or the transactions contemplated or evidenced hereby or thereby, or
the Agent's actions taken hereunder or thereunder, except to the extent that any
of the same shall be directly caused by the Agent's willful misconduct or gross
negligence.
Section 14.8. Agent as Bank. In its individual capacity, BKB shall have
the same obligations and the same rights, powers and privileges in respect to
its Commitment and the Loans made by it, and as the holder of any of the Notes
as it would have were it not also the Agent.
Section 14.9. Resignation. The Agent may resign at any time by giving 60
days' prior written notice thereof to the Banks and the Borrower. Upon any such
resignation, the Majority Banks shall have the right to appoint as a successor
Agent any Bank or any other bank whose senior debt obligations are rated not
less than "A" or its equivalent by Moody's Investors Service, Inc. or not less
than "A" or its equivalent by Standard & Poor's Corporation and which has a net
worth of not less than $500,000,000. Unless a Default or Event of Default shall
have occurred and be continuing, such successor Agent shall be reasonably
acceptable to the Borrower. If no successor Agent shall have been so appointed
by the Majority Banks and shall have accepted such appointment within 30 days
after the retiring Agent's giving of notice of resignation, then the retiring
Agent may, on behalf of the Banks, appoint a successor Agent, which shall be any
Bank or a bank whose debt obligations are rated not less than "A" or its
equivalent by Moody's Investors Service, Inc. or not less than "A" or its
equivalent by Standard & Poor's Corporation and which has a net worth of not
less than $500,000,000. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, 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 shall be discharged from its duties and
obligations hereunder as Agent. After any retiring Agent's resignation, the
provisions of this Agreement and the other Loan Documents shall continue in
effect for its benefit in respect of any actions taken or omitted to be taken by
it while it was acting as Agent.
Section 14.10. Duties in the Case of Enforcement. In case one or more
Events of Default have occurred and shall be continuing, and whether or not
acceleration of the Obligations shall have occurred, the Agent shall, if (a) so
requested by the Majority Banks and (b) the Banks have provided to the Agent
such additional indemnities and assurances against expenses and liabilities as
the Agent may reasonably request, proceed to exercise all or any legal and
equitable and other rights or remedies as it may have. The Majority Banks may
direct the Agent in writing as to the method and the extent of any such
exercise, the Banks hereby agreeing to indemnify and hold the
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Agent harmless from all liabilities incurred in respect of all actions taken or
omitted in accordance with such directions, provided that the Agent need not
comply with any such direction to the extent that the Agent reasonably believes
the Agent's compliance with such direction to be unlawful or commercially
unreasonable in any applicable jurisdiction.
Section 15. EXPENSES.
The Borrower agrees to pay (a) the reasonable costs of producing and
reproducing this Agreement, the other Loan Documents and the other agreements
and instruments mentioned herein, (b) any taxes (including any interest and
penalties in respect thereto) payable by the Agent or any of the Banks (other
than taxes based upon the Agent's or any Bank's gross or net income), including
any recording, mortgage, documentary or intangibles taxes in connection with the
Loan Documents, or other taxes payable on or with respect to the transactions
contemplated by this Agreement, including any such taxes payable by the Agent or
any of the Banks after the Closing Date (the Borrower hereby agreeing to
indemnify the Agent and each Bank with respect thereto), (c) all reasonable
internal charges of the Agent (determined in good faith and in accordance with
the Agent's internal policies applicable generally to its customers) for
commercial finance exams and engineering and environmental reviews and the
reasonable fees, expenses and disbursements of the counsel to the Agent incurred
in connection with the preparation, administration or interpretation of the Loan
Documents and other instruments mentioned herein (excluding, however, the
preparation of agreements evidencing participations granted under Section 18.4),
each closing hereunder, and amendments, modifications, approvals, consents or
waivers hereto or hereunder, (d) the reasonable fees, expenses and disbursements
of the Agent incurred by the Agent in connection with the preparation,
administration or interpretation of the Loan Documents and other instruments
mentioned herein, and the making of each advance hereunder, (e) all reasonable
out-of-pocket expenses (including reasonable attorneys' fees and costs, which
attorneys may be employees of any Bank or the Agent and the fees and costs of
appraisers, engineers, investment bankers or other experts retained by any Bank
or the Agent) incurred by any Bank or the Agent in connection with (i) the
enforcement of or preservation of rights under any of the Loan Documents against
the Borrower or the Guarantors or the administration thereof after the
occurrence of a Default or Event of Default and (ii) any litigation, proceeding
or dispute whether arising hereunder or otherwise, in any way related to the
Agent's or any of the Bank's relationship with the Borrower or the Guarantors,
(f) all reasonable actual fees, expenses and disbursements (including reasonable
attorney's fees and costs) incurred by BKB in connection with the syndication of
interests in the Loan by BKB, and (g) all reasonable fees, expenses and
disbursements of any Bank or the Agent incurred in connection with U.C.C.
searches, U.C.C. filings, title rundowns or title searches The covenants of this
Section 15 shall survive payment or satisfaction of payment of amounts owing
with respect to the Notes.
Section 16. INDEMNIFICATION.
The Borrower agrees to indemnify and hold harmless the Agent and the
Banks and each director, officer, employee, agent and Person who controls the
Agent or any Bank from and
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against any and all claims, actions and suits, whether groundless or otherwise,
and from and against any and all liabilities, losses, damages and expenses of
every nature and character arising out of or relating to this Agreement or any
of the other Loan Documents or the transactions contemplated hereby and thereby
including, without limitation, (a) any brokerage, leasing, finders or similar
fees, (b) any condition of the Real Estate, (c) any actual or proposed use by
the Borrower of the proceeds of any of the Loans, (d) any actual or alleged
infringement of any patent, copyright, trademark, service mark or similar right
of the Borrower, the Guarantors or any of their respective Subsidiaries, (e) the
Borrower and the Guarantors entering into or performing this Agreement or any of
the other Loan Documents, (f) any actual or alleged violation of any law,
ordinance, code, order, rule, regulation, approval, consent, permit or license
relating to the Real Estate, or (g) with respect to the Borrower, the Guarantors
and their respective Subsidiaries and their respective properties and assets,
the violation of any Environmental Law, the Release or threatened Release of any
Hazardous Substances or any action, suit, proceeding or investigation brought or
threatened with respect to any Hazardous Substances (including, but not limited
to claims with respect to wrongful death, personal injury or damage to
property), in each case including, without limitation, the reasonable fees and
disbursements of counsel and allocated costs of internal counsel incurred in
connection with any such investigation, litigation or other proceeding;
provided, however, that the Borrower shall not be obligated under this Section
16 to indemnify any Person for liabilities arising from such Person's own gross
negligence or willful misconduct as determined by a court of competent
jurisdiction after the exhaustion of all applicable appeal periods. The Agent or
a Bank, as applicable, shall promptly notify the Borrower after the Agent or
such Bank obtains actual knowledge of the claim to be indemnified pursuant to
this Section 16; provided, that any failure or delay in providing such notice
shall not relieve the Borrower of its obligations under this Section 16 except
to the extent that the Borrower is actually prejudiced thereby. In litigation,
or the preparation therefor, the Banks and the Agent shall be entitled to select
a single law firm as their own counsel and, in addition to the foregoing
indemnity, the Borrower agrees to pay promptly the reasonable fees and expenses
of such counsel. If, and to the extent that the obligations of the Borrower
under this Section 16 are unenforceable for any reason, the Borrower hereby
agrees to make the maximum contribution to the payment in satisfaction of such
obligations which is permissible under applicable law. The provisions of this
Section 16 shall survive the repayment of the Loans and the termination of the
obligations of the Banks hereunder.
Section 17. SURVIVAL OF COVENANTS, ETC.
All covenants, agreements, representations and warranties made herein,
in the Notes, in any of the other Loan Documents or in any documents or other
papers delivered by or on behalf of the Borrower, the Guarantors or any of their
respective Subsidiaries pursuant hereto or thereto shall be deemed to have been
relied upon by the Banks and the Agent, notwithstanding any investigation
heretofore or hereafter made by any of them, and shall survive the making by the
Banks of any of the Loans, as herein contemplated, and shall continue in full
force and effect so long as any amount due under this Agreement or the Notes or
any of the other Loan Documents remains outstanding or any Bank has any
obligation to make any Loans. The indemnification
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obligations of the Borrower provided herein and the other Loan Documents shall
survive the full repayment of amounts due and the termination of the obligations
of the Banks hereunder and thereunder to the extent provided herein and therein.
All statements contained in any certificate or other paper delivered to any Bank
or the Agent at any time by or on behalf of the Borrower, the Guarantors or any
of their respective Subsidiaries pursuant hereto or in connection with the
transactions contemplated hereby shall constitute representations and warranties
by such Person hereunder.
Section 18. ASSIGNMENT AND PARTICIPATION.
Section 18.1. Conditions to Assignment by Banks. Except as provided
herein, each Bank may assign to one or more banks or other entities all or a
portion of its interests, rights and obligations under this Agreement (including
all or a portion of its Commitment Percentage and Commitment and the same
portion of the Loans at the time owing to it, and the Notes held by it);
provided that (a) the Agent shall have given its prior written consent to such
assignment, which consent shall not be unreasonably withheld or delayed
(provided that such consent shall not be required for any assignment to another
Bank, to a bank which is under common control with the assigning Bank or to a
wholly-owned Subsidiary of such Bank provided that such assignee shall remain a
wholly-owned Subsidiary of such Bank), (b) each such assignment shall be of a
constant, and not a varying, percentage of all the assigning Bank's rights and
obligations under this Agreement, (c) the parties to such assignment shall
execute and deliver to the Agent, for recording in the Register (as hereinafter
defined), a notice of such assignment, together with any Notes subject to such
assignment, (d) in no event shall any voting, consent or approval rights of a
Bank be assigned to any Person controlling, controlled by or under common
control with, or which is not otherwise free from influence or control by, the
Borrower, or the Guarantors, which rights shall instead be allocated pro rata
among the other remaining Banks, (e) such assignee shall have a net worth as of
the date of such assignment of not less than $500,000,000, and (f) such assignee
shall acquire an interest in the Loans of not less than $10,000,000. Upon such
execution, delivery, acceptance and recording, of such notice of assignment, (i)
the assignee thereunder shall be a party hereto and all other Loan Documents
executed by the Banks and, to the extent provided in such assignment, have the
rights and obligations of a Bank hereunder, (ii) the assigning Bank shall, to
the extent provided in such assignment and upon payment to the Agent of the
registration fee referred to in Section 18.2, be released from its obligations
under this Agreement, and (iii) the Agent may unilaterally amend Schedule 1 to
reflect such assignment. In connection with each assignment, the assignee shall
represent and warrant to the Agent, the assignor and each other Bank as to
whether such assignee is controlling, controlled by, under common control with
or is not otherwise free from influence or control by, the Borrower and the
Guarantors.
Section 18.2. Register. The Agent shall maintain a copy of each
assignment delivered to it and a register or similar list (the "Register") for
the recordation of the names and addresses of the Banks and the Commitment
Percentages of, and principal amount of the Loans owing to the Banks from time
to time. The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrower, the Agent and the Banks may treat each Person
whose name is
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recorded in the Register as a Bank hereunder for all purposes of this Agreement.
The Register shall be available for inspection by the Borrower and the Banks at
any reasonable time and from time to time upon reasonable prior notice. Upon
each such recordation, the assigning Bank agrees to pay to the Agent a
registration fee in the sum of $2,000.
Section 18.3. New Notes. Upon its receipt of an assignment executed by
the parties to such assignment, together with each Note subject to such
assignment, the Agent shall (a) record the information contained therein in the
Register, and (b) give prompt notice thereof to the Borrower and the Banks
(other than the assigning Bank). Within five Business Days after receipt of such
notice, the Borrower, at its own expense, shall execute and deliver to the
Agent, in exchange for each surrendered Note, a new Note to the order of such
assignee in an amount equal to the amount assumed by such assignee pursuant to
such assignment and, if the assigning Bank has retained some portion of its
obligations hereunder, a new Note to the order of the assigning Bank in an
amount equal to the amount retained by it hereunder, and shall cause the
Guarantors to deliver to the Agent an acknowledgment in form and substance
satisfactory to the Agent to the effect that the Guaranty extends to and is
applicable to each new Note. Such new Notes shall provide that they are
replacements for the surrendered Notes, shall be in an aggregate principal
amount equal to the aggregate principal amount of the surrendered Notes, shall
be dated the effective date of such assignment and shall otherwise be in
substantially the form of the assigned Notes. The surrendered Notes shall be
canceled and returned to the Borrower.
Section 18.4. Participations. Each Bank may sell participations to one
or more banks or other entities in all or a portion of such Bank's rights and
obligations under this Agreement and the other Loan Documents; provided that (a)
any such sale or participation shall not affect the rights and duties of the
selling Bank hereunder to the Borrower, (b) such sale and participation shall
not entitle such participant to any rights or privileges under this Agreement or
the Loan Documents (including, without limitation, the right to approve waivers,
amendments or modifications), (c) such participant shall have no direct rights
against the Borrower or the Guarantors except the rights granted to the Banks
pursuant to Section 13, (d) such sale is effected in accordance with all
applicable laws, and (e) such participant shall not be a Person controlling,
controlled by or under common control with, or which is not otherwise free from
influence or control by, the Borrower or the Guarantors. Any Bank which sells a
participation shall promptly notify the Agent of such sale and the identity of
the purchaser of such interest.
Section 18.5. Pledge by Bank. Any Bank may at any time pledge all or any
portion of its interest and rights under this Agreement (including all or any
portion of its Note) to any of the twelve Federal Reserve Banks organized under
Section 4 of the Federal Reserve Act, 12 U.S.C. Section 341. No such pledge or
the enforcement thereof shall release the pledgor Bank from its obligations
hereunder or under any of the other Loan Documents.
Section 18.6. No Assignment by Borrower. The Borrower shall not assign
or transfer any of its rights or obligations under any of the Loan Documents
without the prior written consent of each of the Banks.
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Section 18.7. Disclosure. The Borrower agrees that in addition to
disclosures made in accordance with standard banking practices any Bank may
disclose information obtained by such Bank pursuant to this Agreement to
assignees or participants and potential assignees or participants hereunder.
Section 19. NOTICES.
Each notice, demand, election or request provided for or permitted to be
given pursuant to this Agreement (hereinafter in this Section 19 referred to as
"Notice"), but specifically excluding to the maximum extent permitted by law any
notices of the institution or commencement of foreclosure proceedings, must be
in writing and shall be deemed to have been properly given or served by personal
delivery or by sending same by overnight courier or by depositing same in the
United States Mail, postpaid and registered or certified, return receipt
requested, or as expressly permitted herein, by telegraph, telecopy, telefax or
telex, and addressed as follows:
If to the Agent or any Bank, at the address set forth on the signature
page for the Agent or such Bank; and
If to the Borrower:
Excel Realty Trust, Inc.
16955 Via Del Campo
Suite 110
San Diego, California 92127
Attn: Chief Financial Officer
Facsimile: 619/485-8530
and to each other Bank which may hereafter become a party to this Agreement at
such address as may be designated by such Bank. Each Notice shall be effective
upon being personally delivered or upon being sent by overnight courier or upon
being deposited in the United States Mail as aforesaid. The time period in which
a response to such Notice must be given or any action taken with respect thereto
(if any), however, shall commence to run from the date of receipt if personally
delivered or sent by overnight courier, or if so deposited in the United States
Mail, the earlier of three (3) Business Days following such deposit or the date
of receipt as disclosed on the return receipt. Rejection or other refusal to
accept or the inability to deliver because of changed address for which no
notice was given shall be deemed to be receipt of the Notice sent. By giving at
least fifteen (15) days prior Notice thereof, the Borrower, a Bank or Agent
shall have the right from time to time and at any time during the term of this
Agreement to change their respective addresses and each shall have the right to
specify as its address any other address within the United States of America.
Section 20. RELATIONSHIP.
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The relationship between each Bank and the Borrower is solely that of a
lender and borrower, and nothing contained herein or in any of the other Loan
Documents shall in any manner be construed as making the parties hereto
partners, joint venturers or any other relationship other than lender and
borrower.
Section 21. GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE.
THIS AGREEMENT AND EACH OF THE OTHER LOAN DOCUMENTS EXCEPT AS OTHERWISE
SPECIFICALLY PROVIDED THEREIN, ARE CONTRACTS UNDER THE LAWS OF THE COMMONWEALTH
OF MASSACHUSETTS AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF SUCH STATE (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS
OR CHOICE OF LAW). THE BORROWER AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE
COMMONWEALTH OF MASSACHUSETTS OR ANY FEDERAL COURT SITTING THEREIN AND CONSENTS
TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE SERVICE OF PROCESS IN ANY
SUCH SUIT BEING MADE UPON THE BORROWER BY MAIL AT THE ADDRESS SPECIFIED IN
SECTION 19. THE BORROWER HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT
IS BROUGHT IN AN INCONVENIENT COURT.
Section 22. HEADINGS.
The captions in this Agreement are for convenience of reference only and
shall not define or limit the provisions hereof.
Section 23. COUNTERPARTS.
This Agreement and any amendment hereof may be executed in several
counterparts and by each party on a separate counterpart, each of which when so
executed and delivered shall be an original, and all of which together shall
constitute one instrument. In proving this Agreement it shall not be necessary
to produce or account for more than one such counterpart signed by the party
against whom enforcement is sought.
Section 24. ENTIRE AGREEMENT, ETC.
The Loan Documents and any other documents executed in connection
herewith or therewith express the entire understanding of the parties with
respect to the transactions contemplated hereby. Neither this Agreement nor any
term hereof may be changed, waived, discharged or terminated, except as provided
in Section 27.
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Section 25. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS.
EACH OF THE BORROWER, THE AGENT AND THE BANKS HEREBY WAIVES ITS RIGHT TO
A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN
CONNECTION WITH THIS AGREEMENT, ANY NOTE OR ANY OF THE OTHER LOAN DOCUMENTS, ANY
RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER OR THE PERFORMANCE OF SUCH RIGHTS
AND OBLIGATIONS. EXCEPT TO THE EXTENT EXPRESSLY PROHIBITED BY LAW, THE BORROWER
HEREBY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH LITIGATION
ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER
THAN, OR IN ADDITION TO, ACTUAL DAMAGES. THE BORROWER (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY BANK OR THE AGENT HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH BANK OR THE AGENT WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (B) ACKNOWLEDGES THAT THE
AGENT AND THE BANKS HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS TO WHICH THEY ARE PARTIES BY, AMONG OTHER THINGS, THE WAIVERS AND
CERTIFICATIONS CONTAINED IN THIS SECTION 25. BORROWER ACKNOWLEDGES THAT IT HAS
HAD AN OPPORTUNITY TO REVIEW THIS SECTION 25 WITH ITS LEGAL COUNSEL AND THAT
BORROWER AGREES TO THE FOREGOING AS ITS FREE, KNOWING AND VOLUNTARY ACT.
Section 26. DEALINGS WITH THE BORROWER.
The Banks and their affiliates may accept deposits from, extend credit
to and generally engage in any kind of banking, trust or other business with the
Borrower, the Guarantors, their respective Subsidiaries, or any of their
affiliates regardless of the capacity of the Bank hereunder.
Section 27. CONSENTS, AMENDMENTS, WAIVERS, ETC.
Except as otherwise expressly provided in this Agreement, any consent or
approval required or permitted by this Agreement may be given, and any term of
this Agreement or of any other instrument related hereto or mentioned herein may
be amended, and the performance or observance by the Borrower of any terms of
this Agreement or such other instrument or the continuance of any Default or
Event of Default may be waived (either generally or in a particular instance and
either retroactively or prospectively) with, but only with, the written consent
of the Majority Banks. Notwithstanding the foregoing, none of the following may
occur without the written consent of each Bank: a change in the rate of interest
on and the term of the Notes; a change in the amount of the Commitments of the
Banks; a forgiveness, reduction or waiver of the principal of any unpaid Loan or
any interest thereon or fee payable under the Loan
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Documents; a change in the amount of any fee payable to a Bank hereunder; the
postponement of any date fixed for any payment of principal of or interest on
the Loan; an extension of the Maturity Date; a change in the manner of
distribution of any payments to the Banks or the Agent; the release of the
Borrower or the Guarantors except as otherwise provided herein; an amendment of
the definition of Majority Banks or of any requirement for consent by all of the
Banks; any modification to require a Bank to fund a pro rata share of a request
for an advance of the Loan made by the Borrower other than based on its
Commitment Percentage; an amendment to this Section 27; an amendment of the
definition of Majority Banks; or an amendment of any provision of this Agreement
or the Loan Documents which requires the approval of all of the Banks or the
Majority Banks to require a lesser number of Banks to approve such action. The
amount of the Agent's fee payable for the Agent's account and the provisions of
Section 14 may not be amended without the written consent of the Agent. There
shall be no amendment, modification or waiver of any provision in the Loan
Documents with respect to Swing Loans without the consent of the Swing Loan
Bank. The Borrower agrees to enter into such modifications or amendments of this
Agreement or the other Loan Documents as reasonably may be requested by BKB in
connection with the syndication of the Loan, provided that no such amendment or
modification materially affects or increases any of the obligations of the
Borrower hereunder. No waiver shall extend to or affect any obligation not
expressly waived or impair any right consequent thereon. No course of dealing or
delay or omission on the part of the Agent or any Bank in exercising any right
shall operate as a waiver thereof or otherwise be prejudicial thereto. No notice
to or demand upon the Borrower shall entitle the Borrower to other or further
notice or demand in similar or other circumstances.
Section 28. SEVERABILITY.
The provisions of this Agreement are severable, and if any one clause or
provision hereof shall be held invalid or unenforceable in whole or in part in
any jurisdiction, then such invalidity or unenforceability shall affect only
such clause or provision, or part thereof, in such jurisdiction, and shall not
in any manner affect such clause or provision in any other jurisdiction, or any
other clause or provision of this Agreement in any jurisdiction.
Section 29. TIME OF THE ESSENCE.
Time is of the essence with respect to each and every covenant,
agreement and obligation of the Borrower under this Agreement and the other Loan
Documents.
Section 30. NO UNWRITTEN AGREEMENTS.
THE WRITTEN LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
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IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as
a sealed instrument as of the date first set forth above.
EXCEL REALTY TRUST, INC.,
a Maryland corporation
By: /s/ Richard B. Muir
------------------------------------
Richard B. Muir,
Executive Vice President
[CORPORATE SEAL]
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BANKBOSTON, N.A.,
individually and as Agent
By: /s/ Jeffrey L. Warwick
------------------------------------
Jeffrey L. Warwick, Director
BankBoston, N.A.
100 Federal Street
Boston, Massachusetts 02110
Attn: Real Estate Division
With a copy to:
BankBoston, N.A.
115 Perimeter Center Place, N.E.
Suite 500
Atlanta, Georgia 30346
Attn: Daniel P. Stegemoeller
Facsimile: 770/390-8434
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WELLS FARGO BANK, N.A.
By: /s/ Jeffrey Reed
------------------------------------
Its: Senior Vice President
Wells Fargo Bank, N.A.
401 B Street, Suite 304
San Diego, CA 92101
Attn: Mr. Jeffrey Reed
Facsimile: 619/699-3105
Telephone: 619/699-3174
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DRESDNER BANK AG NEW YORK AND
GRAND CAYMAN BRANCHES
By: /s/ Beverly G. Cason /s/ John W. Sweeney
-----------------------------------------
Its: Vice President Assistant Vice President
Dresdner Bank AG New York and
Grand Cayman Branches
Suite 1700
333 South Grand Avenue
Los Angeles, CA 90071
Attn: Sidney Jordan
Facsimile: 213/630-5420
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U.S. BANK NATIONAL ASSOCIATION,
formerly known as and doing business as
First Bank National Association
By: /s/ Stephen P. Bailey
------------------------------------
Its: Vice President
U.S. Bank National Association,
formerly known as and doing business
as First Bank National Association
601 Second Avenue South
Minneapolis, MN 55402-4302
Attn: Jonathan Banyard
Facsimile: 612/973-1721
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THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Michael A. Parisi
------------------------------------
Its: Corporate Banking Officer
The First National Bank of Chicago
One First National Plaza, Suite 0151
Chicago, Illinois 60670
Attn: Michael Parisi
Facsimile: 312/732-1117
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KEYBANK NATIONAL ASSOCIATION
By: /s/ Laird Fairchild
------------------------------------
Its: Vice President
KeyBank National Association
127 Public Square
Cleveland, OH 44114-1306
Attn: Laird Fairchild
Facsimile: 216/689-4997
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PNC BANK, NATIONAL ASSOCIATION
By: /s/ Paul Jamiolkowski
------------------------------------
Its: Real Estate Officer
PNC Bank, National Association
One PNC Plaza
249 5th Avenue
Pittsburgh, PA 15222
Attn: Paul Jamiolkowski
Facsimile: 412-768-3928
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EXHIBIT A
FORM OF REVOLVING CREDIT NOTE
$______________ As of March 31, 1998
FOR VALUE RECEIVED, the undersigned EXCEL REALTY TRUST, INC., a Maryland
corporation, hereby promises to pay to ______________________________ or order,
in accordance with the terms of that certain First Amended and Restated
Revolving Credit Agreement dated as of March 31, 1998 (the "Credit Agreement"),
as from time to time in effect, among the undersigned, BANKBOSTON, N.A., for
itself and as Agent, and such other Banks as may be from time to time named
therein, to the extent not sooner paid, on or before the Maturity Date the
principal sum of ________________________________________________________
DOLLARS ($______________), or such amount as may be advanced by the payee hereof
under the Credit Agreement (but excluding Swing Loans made pursuant to Sections
2.4A(a) through (c) of the Credit Agreement) with daily interest from the date
hereof, computed as provided in the Credit Agreement, on the principal amount
hereof from time to time unpaid, at a rate per annum on each portion of the
principal amount which shall at all times be equal to the rate of interest
applicable to such portion in accordance with the Credit Agreement, and with
interest on overdue principal and, to the extent permitted by applicable law, on
overdue installments of interest and late charges at the rates provided in the
Credit Agreement. Interest shall be payable on the dates specified in the Credit
Agreement, except that all accrued interest shall be paid at the stated or
accelerated maturity hereof or upon the prepayment in full hereof. Capitalized
terms used herein and not otherwise defined herein shall have the meanings set
forth in the Credit Agreement.
Payments hereunder shall be made to BankBoston, N.A., as Agent for the
payee hereof, 100 Federal Street, Boston, Massachusetts 02110.
This Note is one of one or more Notes evidencing borrowings under and is
entitled to the benefits and subject to the provisions of the Credit Agreement.
The principal of this Note may be due and payable in whole or in part prior to
the maturity date stated above and is subject to mandatory prepayment in the
amounts and under the circumstances set forth in the Credit Agreement, and may
be prepaid in whole or from time to time in part, all as set forth in the Credit
Agreement.
Notwithstanding anything in this Note to the contrary, all agreements
between the Borrower and the Banks and the Agent, whether now existing or
hereafter arising and whether written or oral, are hereby limited so that in no
contingency, whether by reason of acceleration of the maturity of any of the
Obligations or otherwise, shall the interest contracted for, charged or received
by the Banks exceed the maximum amount permissible under applicable law. If,
from any circumstance whatsoever, interest would otherwise be payable to the
Banks in excess of the maximum lawful amount, the interest payable to the Banks
shall be reduced to the maximum amount permitted under applicable law; and if
from any circumstance the Banks shall ever receive anything of value deemed
interest by applicable law in excess of the maximum lawful amount, an amount
equal to any excessive interest shall be applied to the reduction of the
<PAGE> 90
principal balance of the Obligations and to the payment of interest or, if such
excessive interest exceeds the unpaid balance of principal of the Obligations,
such excess shall be refunded to the Borrower. All interest paid or agreed to be
paid to the Banks shall, to the extent permitted by applicable law, be
amortized, prorated, allocated and spread throughout the full period until
payment in full of the principal of the Obligations (including the period of any
renewal or extension thereof) so that the interest thereon for such full period
shall not exceed the maximum amount permitted by applicable law. This paragraph
shall control all agreements between the Borrower and the Banks and the Agent.
In case an Event of Default shall occur, the entire principal amount of
this Note may become or be declared due and payable in the manner and with the
effect provided in said Credit Agreement.
This Note shall be governed by and construed in accordance with the laws
of the Commonwealth of Massachusetts (without giving effect to the conflict of
laws rules of any jurisdiction).
The undersigned maker and all guarantors and endorsers, hereby waive
presentment, demand, notice, protest, notice of intention to accelerate the
indebtedness evidenced hereby, notice of acceleration of the indebtedness
evidenced hereby and all other demands and notices in connection with the
delivery, acceptance, performance and enforcement of this Note, except as
specifically otherwise provided in the Credit Agreement, and assent to
extensions of time of payment or forbearance or other indulgence without notice.
IN WITNESS WHEREOF the undersigned has by its duly authorized officer
executed this Note under seal as of the day and year first above written.
EXCEL REALTY TRUST, INC.,
a Maryland corporation
By:______________________________
Name:_________________________
Title:________________________
[CORPORATE SEAL]
<PAGE> 91
EXHIBIT B
FORM OF SWING LOAN NOTE
$______________ As of March 31, 1998
FOR VALUE RECEIVED, the undersigned EXCEL REALTY TRUST, INC., a Maryland
corporation, hereby promises to pay to ______________________________ or order,
in accordance with the terms of that certain First Amended and Restated
Revolving Credit Agreement dated as of March 31, 1998 (the "Credit Agreement"),
as from time to time in effect, among the undersigned, BANKBOSTON, N.A., for
itself and as Agent, and such other Banks as may be from time to time named
therein, to the extent not sooner paid, on or before the Maturity Date the
principal sum of _____________________________________________________________
DOLLARS ($______________), or such amount as may be advanced by the payee hereof
under the Credit Agreement as Swing Loans with daily interest from the date
hereof, computed as provided in the Credit Agreement, on the principal amount
hereof from time to time unpaid, at a rate per annum on each portion of the
principal amount which shall at all times be equal to the rate of interest
applicable to such portion in accordance with the Credit Agreement, and with
interest on overdue principal and, to the extent permitted by applicable law, on
overdue installments of interest and late charges at the rates provided in the
Credit Agreement. Interest shall be payable on the dates specified in the Credit
Agreement, except that all accrued interest shall be paid at the stated or
accelerated maturity hereof or upon the prepayment in full hereof. Capitalized
terms used herein and not otherwise defined herein shall have the meanings set
forth in the Credit Agreement.
Payments hereunder shall be made to BankBoston, N.A., as Agent for the
payee hereof, 100 Federal Street, Boston, Massachusetts 02110.
This Note is one of one or more Notes evidencing borrowings under and is
entitled to the benefits and subject to the provisions of the Credit Agreement.
The principal of this Note may be due and payable in whole or in part prior to
the maturity date stated above and is subject to mandatory prepayment in the
amounts and under the circumstances set forth in the Credit Agreement, and may
be prepaid in whole or from time to time in part, all as set forth in the Credit
Agreement.
Notwithstanding anything in this Note to the contrary, all agreements
between the Borrower and the Banks and the Agent, whether now existing or
hereafter arising and whether written or oral, are hereby limited so that in no
contingency, whether by reason of acceleration of the maturity of any of the
Obligations or otherwise, shall the interest contracted for, charged or received
by the Banks exceed the maximum amount permissible under applicable law. If,
from any circumstance whatsoever, interest would otherwise be payable to the
Banks in excess of the maximum lawful amount, the interest payable to the Banks
shall be reduced to the maximum amount permitted under applicable law; and if
from any circumstance the Banks shall ever receive anything of value deemed
interest by applicable law in excess of the maximum lawful amount, an amount
equal to any excessive interest shall be applied to the reduction of the
<PAGE> 92
principal balance of the Obligations and to the payment of interest or, if such
excessive interest exceeds the unpaid balance of principal of the Obligations,
such excess shall be refunded to the Borrower. All interest paid or agreed to be
paid to the Banks shall, to the extent permitted by applicable law, be
amortized, prorated, allocated and spread throughout the full period until
payment in full of the principal of the Obligations (including the period of any
renewal or extension thereof) so that the interest thereon for such full period
shall not exceed the maximum amount permitted by applicable law. This paragraph
shall control all agreements between the Borrower and the Banks and the Agent.
In case an Event of Default shall occur, the entire principal amount of
this Note may become or be declared due and payable in the manner and with the
effect provided in said Credit Agreement.
This Note shall be governed by and construed in accordance with the
laws of the Commonwealth of Massachusetts (without giving effect to the conflict
of laws rules of any jurisdiction).
The undersigned maker and all guarantors and endorsers, hereby waive
presentment, demand, notice, protest, notice of intention to accelerate the
indebtedness evidenced hereby, notice of acceleration of the indebtedness
evidenced hereby and all other demands and notices in connection with the
delivery, acceptance, performance and enforcement of this Note, except as
specifically otherwise provided in the Credit Agreement, and assent to
extensions of time of payment or forbearance or other indulgence without notice.
IN WITNESS WHEREOF the undersigned has by its duly authorized officer
executed this Note under seal as of the day and year first above written.
EXCEL REALTY TRUST, INC.,
a Maryland corporation
By:______________________________
Name:_________________________
Title:________________________
[CORPORATE SEAL]
<PAGE> 93
EXHIBIT C
FORM OF REQUEST FOR LOAN
BankBoston, N.A., as Agent 115 Perimeter Center Place, N.E.
Suite 500
Atlanta, Georgia 30346
Attn: Daniel Stegemoeller and Sandra Wheeler
Ladies and Gentlemen:
Pursuant to the provisions of Section 2.6 of the First Amended and
Restated Revolving Credit Agreement dated as of March 31, 1998, as from time to
time in effect (the "Credit Agreement"), among Excel Realty Trust, Inc. (the
"Borrower"), BankBoston, N.A., for itself and as Agent and the other Banks from
time to time party thereto, the Borrower hereby requests and certifies as
follows:
1. Loan. The Borrower hereby requests a [Loan under Section 2.1]
[Swing Loan under Section 2.4A] of the Credit Agreement [strike inapplicable
language]:
Principal Amount: $
LIBOR or Base Rate:
Drawdown Date: , 19
Interest Period:
by credit to the general account of the Borrower with the Agent at the Agent's
Head Office.
[IF THE REQUESTED LOAN IS A SWING LOAN AND THE BORROWER DESIRES
FOR SUCH LOAN TO BE A LIBOR RATE LOAN FOLLOWING ITS CONVERSION AS PROVIDED IN
SECTION 2.4A(D), SPECIFY THE INTEREST PERIOD FOLLOWING
CONVERSION:____________________]
2. Use of Proceeds. Such Loan shall be used for the following
purposes permitted by Section 7.11 of the Credit Agreement:
[Describe]
3. No Default. The undersigned chief financial or chief accounting
officer of the Borrower certifies that the Borrower is and will be in compliance
with all covenants under the Loan Documents after giving effect to the making of
the Loan requested hereby.
<PAGE> 94
4. Representations True. Each of the representations and warranties
made by or on behalf of the Borrower, the Guarantors and their respective
Subsidiaries contained in the Credit Agreement, in the other Loan Documents or
in any document or instrument delivered pursuant to or in connection with the
Credit Agreement was true as of the date as of which it was made and shall also
be true at and as of the Drawdown Date for the Loan requested hereby, with the
same effect as if made at and as of such Drawdown Date (except to the extent of
changes resulting from transactions contemplated or permitted by the Credit
Agreement and the other Loan Documents and changes occurring in the ordinary
course of business that singly or in the aggregate are not materially adverse,
and except to the extent that such representations and warranties relate
expressly to an earlier date) and no Default or Event of Default has occurred
and is continuing.
5. Other Conditions. All other conditions to the making of the Loan
requested hereby set forth in Section 11 of the Credit Agreement have been
satisfied.
6. Drawdown Date. Except to the extent, if any, specified by notice
actually received by the Agent prior to the Drawdown Date specified above, the
foregoing representations and warranties shall be deemed to have been made by
the Borrower on and as of such Drawdown Date.
7. Definitions. Terms defined in the Credit Agreement are used
herein with the meanings so defined.
IN WITNESS WHEREOF, we have hereunto set our hands this _____ day of
_______________, 199___.
EXCEL REALTY TRUST, INC.,
a Maryland corporation
By:______________________________
Chief Financial or Chief Accounting
Officer
<PAGE> 95
EXHIBIT D
FORM OF
COMPLIANCE CERTIFICATE
BankBoston, N.A.,
for itself and as Agent
115 Perimeter Center Place, N.E.
Suite 500
Atlanta, Georgia 30346
Attn: Daniel Stegemoeller and Sandra Wheeler
[INSERT NAMES AND ADDRESSES
OF OTHER BANKS]
Ladies and Gentlemen:
Reference is made to the First Amended and Restated Revolving Credit
Agreement dated as of March 31, 1998 (the "Credit Agreement") by and among Excel
Realty Trust, Inc. (the "Borrower"), BankBoston, N.A., for itself and as Agent,
and the other Banks from time to time party thereto. Terms defined in the Credit
Agreement and not otherwise defined herein are used herein as defined in the
Credit Agreement.
Pursuant to the Credit Agreement, the Borrower is furnishing to you
herewith (or have most recently furnished to you) the financial statements of
the Borrower and its respective Subsidiaries for the fiscal period ended
_______________ (the "Balance Sheet Date"). Such financial statements have been
prepared in accordance with generally accepted accounting principles and present
fairly the financial position of the Borrower and the Subsidiaries covered
thereby at the date thereof and the results of their operations for the periods
covered thereby, subject in the case of interim statements only to normal
year-end audit adjustments.
This certificate is submitted in compliance with requirements of Section
7.4(c), Section 7.5(d) and Section 10.10 of the Credit Agreement. If this
certificate is provided under a provision other than Section 7.4(c), the
calculations provided below are made using the financial statements of the
Borrower and its respective Subsidiaries as of the Balance Sheet Date adjusted
in the best good-faith estimate of the Borrower to give effect to the making of
a Loan, extension of the Maturity Date, acquisition or disposition of property
or other event that occasions the preparation of this certificate; and the
nature of such event and the Borrower's estimate of its effects are set forth in
reasonable detail in an attachment hereto. The undersigned officer is the chief
financial or chief accounting officer of the Borrower.
The undersigned officer has caused the provisions of the Credit
Agreement and the Guaranty to be reviewed and have no knowledge of any Default
or Event of Default. (Note: If the signer does have knowledge of any Default or
Event of Default, the form of certificate should be
<PAGE> 96
revised to specify the Default or Event of Default, the nature thereof and the
actions taken, being taken or proposed to be taken by the Borrower with respect
thereto.) The Borrower is providing the information set forth in the schedule
attached hereto to demonstrate compliance as of the date hereof with the
covenants described therein.
IN WITNESS WHEREOF, the undersigned hereunto set its hand this ___ day
of ________________, 199__.
EXCEL REALTY TRUST, INC.,
a Maryland corporation
By:___________________________________________
Chief Financial or Chief Accounting Officer
<PAGE> 1
EXHIBIT 10.39
EMPLOYMENT AGREEMENT
AGREEMENT, dated as of September 17, 1998 ("Agreement Date"), by and
between Excel Realty Trust, Inc., a Maryland corporation ("Company"), and
William Newman ("Newman").
RECITALS
A. Newman is currently Chief Executive Officer and Chairman of the
Board of Directors of New Plan Realty Trust, a Massachusetts business trust
("East").
B. The Company, ERT Merger Sub, Inc., a wholly owned subsidiary of
the Company ("Sub"), and East entered into an Agreement and Plan of Merger
("Merger Agreement"), pursuant to which Sub shall merge with and into East
("Merger").
C. The Company desires to employ Newman, effective as of the time
the Merger is consummated ("Effective Time"), on the terms and conditions set
forth in this Agreement, and Newman desires to be so employed.
AGREEMENT
IN CONSIDERATION of the premises and the mutual covenants set forth
below, the parties hereby agree as follows:
1. Employment. The Company hereby agrees to employ Newman and
Newman hereby accepts such employment, on the terms and conditions hereinafter
set forth. Notwithstanding the employment of Newman by the Company, the Company
shall be entitled to pay Newman from the payroll of East.
2. Term. The period of employment of Newman by the Company
("Employment Period") shall commence at the Effective Time of the Merger
("Commencement Date") and shall continue through the fifth anniversary of the
Effective Time; provided, that, commencing on the day following the fifth
anniversary of the Effective Time and on the day following the sixth anniversary
of the Effective Time, the Employment Period shall automatically be extended for
one (1) additional year unless, in either case, either party gives written
notice not to extend this Agreement prior to six (6) months before such
extension would be effectuated; provided, further, that the Employment Payment
for such two one-year extension periods shall be determined mutually by Newman
and the Board of Directors of Company ("Board") at the time of each such
extension. The Employment Period may be sooner terminated in accordance with
Section 5 of this Agreement.
3. Position and Duties.
(a) Employment. During the Employment Period, Newman will at
such times as may be convenient to the Company and Newman, render to the Company
such services of an
<PAGE> 2
executive advisory or consultative nature as the Company may reasonably request,
to enable the Company to continue to have the benefit of his experience and
knowledge of the affairs of the Company and of his reputation, experience and
contacts in the industry. Newman will, during the Employment Period, be
available for advice and counsel to the officers and directors of the Company at
mutually convenient times by telephone, letter, or in person in New York City,
provided, however, that his failure to render such services or to give such
advice and counsel by reason of his illness or other incapacity shall not affect
his right to receive his compensation during the Employment Period. It is
understood that Newman's duties during the Employment Period shall not require
his full-time attention and subject to Section 10, Newman can engage in any
other activities, including membership on other boards of directors, as he
desires. Newman shall not be required to provide services in person in New York
City more than one (1) day per calendar month.
(b) Director. During the Employment Period, Newman shall be
nominated by the Board to serve as a director of the Company and the Company
shall use its best efforts to cause Newman to be elected as a director of the
Company throughout the Employment Period. For the period Newman is a director of
the Company during the Employment Period, Newman shall serve as Chairman of the
Board. Subject to the first sentence of this Section 3(b), for any period Newman
is not elected as a director of the Company during the Employment Period, Newman
shall serve as Chairman Emeritus of the Board and shall be entitled to attend
all Board meetings in such status.
4. Compensation and Related Matters.
(a) Compensation. During the Employment Period, the Company
shall pay Newman, at least semi-monthly, at an annual rate equal to three
hundred fifty thousand dollars ($350,000) during the first five years of the
Employment Period and such amount as determined mutually by Newman and the Board
for any extension period pursuant to Section 2 ("Employment Payment").
(b) Perquisites and Benefits. During the Employment Period,
Newman shall be entitled to all perquisites and benefits he had or was entitled
to from East prior to the Effective Time except the use of a New York City
apartment. The foregoing sentence shall not prevent the Company from changing
benefit programs provided Newman (and to the extent applicable, his spouse and
dependents) are treated at least as well under the benefit program as the
Company's senior executives (and to the extent applicable, their spouses and
dependents) and Newman (and to the extent applicable, his spouse and dependents)
are provided with equivalent benefits or the economic equivalent of such
benefits he (and to the extent applicable, his spouse and dependents) had or was
entitled to immediately prior to the Effective Time. Without limitation on the
foregoing Newman (and his spouse and dependents to the extent provided therein)
shall be entitled during the Employment Period to participate in and be covered
under all the welfare benefit plans or programs maintained by the Company from
time to time for the benefit of its senior executives including, without
limitation, all medical, hospitalization, dental, disability, accidental death
and dismemberment and travel accident insurance plans and programs. The
2
<PAGE> 3
Company shall at all times during the Employment Period provide to Newman (and
his spouse and dependents to the extent provided under the applicable plans or
programs) (subject to modifications affecting all senior executive officers) the
same type and levels of participation and benefits as are being provided to the
Company's senior executives (and their spouses and dependents to the extent
provided under the applicable plans or programs) during the Employment Period.
In addition, during the Employment Period, Newman shall be eligible to
participate in all pension, retirement, savings and other employee benefit plans
and programs maintained from time to time by the Company for the benefit of its
senior executives. With respect to each such employee benefit plan, program,
policy or arrangement, service with East or any of its subsidiaries (as
applicable) shall be included for purposes of determining eligibility to
participate (including waiting periods, and without being subject to any entry
date requirement after the waiting period has been satisfied), vesting (as
applicable) and entitlement to benefits. The medical plan or plans maintained by
the Company after the Effective Time shall waive all limitations as to
pre-existing conditions, exclusions and waiting periods with respect to
participation and coverage requirements. Notwithstanding anything to the
contrary herein, Newman's participation in any annual incentive, long-term
performance or other incentive plan or stock option, restricted stock or other
equity incentive plan shall be in the sole discretion of the Board except for
entitlement to any options, restricted stock or equity incentives provided
solely because of director status. Notwithstanding anything to the contrary
herein, if Newman, his spouse or his dependents cannot continue to participate
in the Company programs providing such benefits, the Company shall arrange to
provide Newman, his spouse and his dependents with equivalent benefits or the
economic equivalent of such benefits which they otherwise would have been
entitled to receive under such programs. Furthermore, notwithstanding anything
to the contrary herein, the Split Dollar Agreement made as of October 4, 1993
between the Company and Debra Bernstein and Melvin Newman, as trustees under the
William Newman Trust shall remain in effect even after the Employment Period.
(c) Services Furnished. During the Employment Period, the
Company shall furnish Newman with office space, stenographic and secretarial
assistance substantially the same as provided on the Agreement Date.
Notwithstanding the foregoing, Newman shall be furnished with the same office
space provided to Newman on the Agreement Date if the Company has such office
space and Newman shall be entitled to the same secretarial assistance from
Newman's secretary on the Agreement Date for so long as she is employed by the
Company.
(d) Expenses. The Company shall promptly reimburse Newman
for all business expenses incurred in accordance with the Company's past
practice with respect to Newman, including, without limitation, expenses for
Newman and his spouse in connection with conferences, seminars and meetings
Newman believes are beneficial for the Company whether directly or by virtue of
maintaining his reputation and contacts in the industry and business community.
5. Termination. Newman's employment hereunder may be terminated
during the Employment Period under the following circumstances:
3
<PAGE> 4
(a) Death. Newman's employment hereunder shall terminate
upon his death.
(b) Disability. If, as a result of Newman's incapacity due
to a physical or mental illness, Newman shall have been substantially unable to
perform his duties hereunder for an entire period of six (6) consecutive months,
and within thirty (30) days after written Notice of Termination (as set forth in
Section 6(a)) is given after such six (6) month period, Newman shall not have
returned to the performance of his duties, the Company shall have the right to
terminate Newman's employment hereunder for "Disability", and such termination
in and of itself shall not be, nor shall it be deemed to be, a breach of this
Agreement.
(c) By Newman. Newman shall have the right to terminate his
employment hereunder by providing the Company with a Notice of Termination, and
such termination shall not in and of itself be, nor shall it be deemed to be, a
breach of this Agreement.
6. Termination Procedure.
(a) Notice of Termination. Any termination of Newman's
employment by the Company under Section 5(b) or by Newman under Section 5(c)
during the Employment Period shall be communicated by written Notice of
Termination to the other party hereto in accordance with Section 14.
(b) Date of Termination. "Date of Termination" shall mean
(i) if Newman's employment is terminated by his death, the date of his death,
(ii) if Newman's employment is terminated pursuant to Section 5(b), thirty (30)
days after Notice of Termination (provided that Newman shall not have returned
to the performance of his duties hereunder during such thirty (30) day period),
and (iii) if Newman's employment is terminated by Newman pursuant to Section
5(c), the date on which a Notice of Termination is given by Newman or any later
date (within thirty (30) days after the giving of such notice) set forth in such
Notice of Termination.
7. Compensation Upon Termination or During Disability. In the event
Newman is disabled or his employment terminates as provided under this Agreement
during the Employment Period, the Company shall provide Newman with the payments
and benefits set forth below. Newman acknowledges and agrees that, subject to
Section 8, the payments set forth in this Section 7 constitute liquidated
damages for termination of his employment during the Employment Period.
(a) By Newman. If Newman's employment is terminated by
Newman:
(i) the Company shall pay Newman his Employment
Payment through the Date of Termination, as soon as practicable
following the Date of Termination;
(ii) the Company shall reimburse Newman pursuant to
Section 4(d) for reasonable expenses incurred, but not paid prior to
such termination of employment; and
4
<PAGE> 5
(iii) Newman shall be entitled to any other rights,
compensation and/or benefits as may be due to Newman in accordance with
the terms and provisions of any agreements, plans or programs of the
Company.
(b) Disability. During any period that Newman fails to
perform his duties hereunder as a result of incapacity due to physical or mental
illness ("Disability Period"), Newman shall continue to receive his full
Employment Payment set forth in Section 4(a) until his employment is terminated
pursuant to Section 5(b). In the event Newman's employment is terminated for
Disability pursuant to Section 5(b):
(i) the Company shall pay to Newman (A) his
Employment Payment through the Date of Termination, as soon as
practicable following the Date of Termination, and (B) continued
Employment Payment (as provided for in Section 4(a)) and prerequisites
and benefits pursuant to Section 4(b) for the longer of (i) six (6)
months or (ii) the date on which Newman becomes entitled to long-term
disability benefits under the applicable plan or program of the Company
paying the benefits described in Section 4(b), up to a maximum of three
(3) years of Employment Payment continuation;
(ii) the Company shall reimburse Newman pursuant to
Section 4(d) for reasonable expenses incurred, but not paid prior to
such termination of employment; and
(iii) Newman shall be entitled to any other rights,
compensation and/or benefits as may be due to Newman in accordance with
the terms and provisions of any agreements, plans or programs of the
Company.
(c) Death. If Newman's employment is terminated by his
death:
(i) the Company shall pay in a lump sum to Newman's
beneficiary, legal representatives or estate, as the case may be,
Newman's Employment Payment through the Date of Termination and one (1)
times Newman's annual rate of Employment Payment, and shall provide
Newman's spouse and dependents with benefits pursuant to Section 4(b)
for one (1) year;
(ii) the Company shall reimburse Newman's
beneficiary, legal representatives or estate, as the case may be,
pursuant to Section 4(d) for reasonable expenses incurred, but not paid
prior to such termination of employment; and
(iii) Newman's beneficiary, legal representatives or
estate, as the case may be, shall be entitled to any other rights,
compensation and benefits as may be due to any such persons or estate in
accordance with the terms and provisions of any agreements, plans or
programs of the Company.
8. Breach by Company. If there is any material breach of this
Agreement by the Company which is not corrected to Newman's reasonable
satisfaction within ten (10) days after written notice by Newman to the Company,
the Company shall pay the Employment Payment for
5
<PAGE> 6
the remainder of the Employment Period in one lump sum cash payment (without
regard to any discount for early payment) as soon as practicable after such
material breach but in no event later than twenty (20) days after such material
breach. This lump sum payment shall not affect the Company's obligation
hereunder other than the obligation to provide compensation pursuant to Section
4(a). The Company has no right to terminate this Agreement.
9. Mitigation. Newman shall not be required to mitigate amounts
payable under this Agreement by seeking other employment or otherwise, and there
shall be no offset against amounts due Newman under this Agreement on account of
subsequent employment. Additionally, amounts owed to Newman under this Agreement
shall not be offset by any claims the Company may have against Newman, and the
Company's obligation to make the payments provided for in this Agreement and
otherwise to perform its obligations hereunder shall not be affected by any
other circumstances, including, without limitation, any counterclaim,
recoupment, defense or other right which the Company may have against Newman or
others.
10. Confidential Information, Ownership of Documents;
Non-Competition.
(a) Confidential Information. Newman shall hold in a
fiduciary capacity for the benefit of the Company all trade secrets and
confidential information, knowledge or data relating to the Company and its
businesses and investments, which shall have been obtained by Newman during
Newman's employment by the Company and which is not generally available public
knowledge (other than by acts by Newman in violation of this Agreement). Except
as may be required or appropriate in connection with his carrying out his duties
under this Agreement, Newman shall not, without the prior written consent of the
Company or as may otherwise be required by law or any legal process, or as is
necessary in connection with any adversarial proceeding against the Company (in
which case Newman shall use his reasonable best efforts in cooperating with the
Company in obtaining a protective order against disclosure by a court of
competent jurisdiction), communicate or divulge any such trade secrets,
information, knowledge or data to anyone other than the Company and those
designated by the Company or on behalf of the Company in the furtherance of its
business or to perform duties hereunder.
(b) Removal of Documents; Rights to Products. All records,
files, drawings, documents, models, equipment, and the like relating to the
Company's business, which Newman has control over shall not be removed from the
Company's premises without its written consent, unless such removal is in the
furtherance of the Company's business or is in connection with Newman's carrying
out his duties under this Agreement and, if so removed, shall be returned to the
Company promptly after termination of Newman's employment hereunder, or
otherwise promptly after removal if such removal occurs following termination of
employment. Notwithstanding anything to the contrary herein, Newman has the
right to remove his personal art work, sculptures, awards and memorabilia.
Newman shall assign to the Company all rights to trade secrets and other
products relating to the Company's business developed by him alone or in
conjunction with others at any time while employed by the Company.
6
<PAGE> 7
(c) Protection of Business. During the Employment Period and
until the first anniversary of Newman's Date of Termination, Newman will not (i)
develop, pursue or attempt to develop any project known to Newman and which the
Company or any of its Affiliates (the "Designated Entities") are developing,
pursuing, or attempting to develop as of the Date of Termination, unless such
project has been inactive for over nine (9) months (a "Project"), directly or
indirectly, alone, in association with or as a shareholder, principal, agent,
partner, officer, director, employee or consultant of any other organization,
(ii) divert to any entity, any Project of any of the Designated Entities, or
(iii) solicit any officer, employee (other than secretarial staff) or consultant
of any of the Designated Entities to leave the employ of any of the Designated
Entities. If, at any time, the provisions of this Section 10(c) shall be
determined to be invalid or unenforceable, by reason of being vague or
unreasonable as to area, duration or scope of activity, this Section 10(c) shall
be considered divisible and shall become and be immediately amended to only such
area, duration and scope of activity as shall be determined to be reasonable and
enforceable by the court or other body having jurisdiction over the matter; and
Newman agrees that this Section 10(c) as so amended shall be valid and binding
as though any invalid or unenforceable provision had not been included herein.
(d) Injunctive Relief. In the event of a breach or
threatened breach of this Section 10, Newman agrees that the Company shall be
entitled to injunctive relief in a court of appropriate jurisdiction to remedy
any such breach or threatened breach, Newman acknowledging that damages would be
inadequate and insufficient.
(e) Continuing Operation. Except as specifically provided in
this Section 10, the termination of Newman's employment or of this Agreement
shall have no effect on the continuing operation of this Section 10.
11. Indemnification.
(a) General. The Company agrees that if Newman is made a
party or a threatened to be made a party to any action, suits or proceeding,
whether civil, criminal, administrative or investigative (a "Proceeding"), by
reason of the fact that Newman is or was a trustee, director or officer of the
Company or any subsidiary of the Company or is or was serving at the request of
the Company or any subsidiary as a trustee, director, officer, member, employee
or agent of another corporation or a partnership, joint venture, trust or other
enterprise, including, without limitation, service with respect to employee
benefit plans, whether or not the basis of such Proceeding is alleged action in
an official capacity as a trustee, director, officer, member, employee or agent
while serving as a trustee, director, officer, member, employee or agent, Newman
shall be indemnified and held harmless by the Company to the fullest extent
authorized by Maryland law, as the same exits or may hereafter be amended,
against all Expenses incurred or suffered by Newman in connection therewith, and
such indemnification shall continue as to Newman even if Newman has ceased to be
an officer, director, trustee or agent, or is no longer employed by the Company
and shall inure to the benefit of this heirs, executors and administrators.
7
<PAGE> 8
(b) Expenses. As used in his Agreement, the term "Expenses"
shall include, without limitation, damages, losses, judgments, liabilities,
fines, penalties, excise taxes, settlements, and costs, attorneys' fees,
accountants' fees, and disbursements and costs of attachment or similar bonds,
investigations, and any expenses of establishing a right to indemnification
under this Agreement.
(c) Enforcement. If a claim or request under this Agreement
is not paid by the Company or on its behalf, within thirty (30) days after a
written claim or request has been received by the Company, Newman may at any
time thereafter bring suit against the Company to recover the unpaid amount of
the claim or request and if successful in whole or in part, Newman shall be
entitled to be paid also the expenses of prosecuting such suit. All obligations
for indemnification hereunder shall be subject to, and paid in accordance with,
applicable Maryland law.
(d) Partial Indemnification. If Newman is entitled under any
provision of this Agreement of indemnification by the Company for some or a
portion of any Expenses, but not, however, for the total amount thereof, the
Company, shall nevertheless indemnify Newman for the portion of such Expenses to
which Newman is entitled.
(e) Advances of Expenses. Expenses incurred by Newman in
connection with any Proceeding shall be paid by the Company in advance upon
request of Newman that the Company pay such Expenses; but, only in the event
that Newman shall have delivered in writing to the Company (i) an undertaking to
reimburse the Company for Expenses with respect to which Newman is not entitled
to indemnification and (ii) an affirmation of his good faith belief that the
standard of conduct necessary for indemnification by the Company has been met.
(f) Notice of Claim. Newman shall give to the Company notice
of any claim made against him for which indemnification will or could be sought
under this Agreement. In addition, Newman shall give the Company such
information and cooperation as it may reasonably required and as shall be within
Newman's power and at such times and places as are convenient for Newman.
(g) Defense of Claim. With respect to any Proceeding as to
which Newman notifies the Company of the commencement thereof:
(i) The Company will be entitled to participate
therein at its own expense;
(ii) Except as otherwise provided below, to the
extent that it may wish, the Company will be entitled to assume the
defense thereof, with counsel reasonably satisfactory to Newman which in
the Company's sole discretion may be regular counsel to the Company and
may be counsel to other officers and directors of the Company or any
subsidiary. Newman also shall have the right to employ his own counsel
in such action, suit or proceeding if he reasonably concludes that
failure to do so would involve a
8
<PAGE> 9
conflict of interest between the Company and Newman, and under such
circumstances the fees and expenses of such counsel shall be at the
expense of the Company; and
(iii) The Company shall not be liable to indemnify
Newman under this Agreement for any amounts paid in settlement of any
action or claim effected without its written consent. The Company shall
not settle any action or claim in any manner which would impose any
penalty or limitation on Newman without Newman's written consent.
Neither the Company nor Newman will unreasonably withhold or delay their
consent to any proposed settlement.
(h) Non-exclusivity. The right to indemnification and the
payment of expenses incurred in defending a Proceeding in advance of its final
disposition conferred in this Section 11 shall not be exclusive of any other
right which Newman may have or hereafter may acquire under any statute,
provision of the declaration of trust or certificate of incorporation or by-laws
of the Company or any subsidiary, agreement, vote of shareholders or
disinterested directors or trustees or otherwise.
12. Legal Fees and Expenses. If any contest or dispute shall arise
between the Company and Newman regarding any provision of this Agreement, the
Company shall reimburse Newman for all legal fees and expenses reasonably
incurred by Newman in connection with such contest or dispute, but only if
Newman is successful in respect of substantially all of Newman's claims brought
and pursued in connection with such contest or dispute. Such reimbursement shall
be made as soon as practicable following the final resolution of such contest or
dispute to the extent the Company receives reasonable written evidence of such
fees and expenses.
13. Successors; Binding Agreement.
(a) Company's Successors. No rights or obligations of the
Company under this Agreement may be assigned or transferred except that the
Company will require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
and/or assets of the Company to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place. As used in this
Agreement, "Company" shall mean the Company as herein before defined and any
successor to its business and/or assets (by merger, purchase or otherwise) which
executes and delivers the agreement provided for in this Section 13 or which
otherwise becomes bound by all the terms and provisions of this Agreement by
operation of law.
(b) Newman's Successors. No rights or obligations of Newman
under the Agreement may be assigned or transferred by Newman other than his
rights to payments or benefits hereunder, which may be transferred only by will
or the laws of descent and distribution. Upon Newman's death, this Agreement and
all rights of Newman hereunder shall inure to the benefit of and be enforceable
by Newman's beneficiary or beneficiaries, personal or legal representatives, or
estate, to the event any such person succeeds to Newman's interests under this
9
<PAGE> 10
Agreement. Newman shall be entitled to select and change a beneficiary or
beneficiaries to receive any benefit or compensation payable hereunder following
Newman's death by giving the Company written notice thereof. In the event of
Newman's death or a judicial determination of his incompetence, reference in
this Agreement to Newman shall be deemed, where appropriate, to refer to his
beneficiary(ies), estate or other legal representative(s). If Newman should die
following his Date of Termination while any amounts would still be payable to
him hereunder if he had continued to live, all such amounts unless otherwise
provided herein shall be paid in accordance with the terms of this Agreement to
such person or persons so appointed in writing by Newman, or otherwise to his
legal representatives or estate.
14. Notice. For the purposes of this Agreement, notices, demands and
all other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when delivered either personally or by
United States certified or registered mail, return receipt requested, postage
prepaid, addressed as follows:
If to Newman:
William Newman
101 Morris Lane
Scarsdale, New York 10583
If to the Company:
Excel Realty Trust
1120 Avenue of the Americas, 12th Floor
New York, New York 10036
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
15. Miscellaneous. No provisions of this Agreement may be amended,
modified, or waived unless such amendment or modification is agreed to in
writing signed by Newman and by a duly authorized officer of the Company, and
such waiver is set forth in writing and signed by the party to be charged. No
waiver by either party hereto at any time of any breach by the other party
hereto of any condition or provision of this Agreement to be performed by such
other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not set forth
expressly in this Agreement. The respective rights and obligations of the
parties hereunder of this Agreement shall survive Newman's termination of
employment and the termination of this Agreement to the extent necessary for the
intended preservation of such rights and obligations. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of New York without regard to its conflicts of law
principles.
10
<PAGE> 11
16. Validity. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of the Agreement, which shall remain in full force and
effect.
17. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
18. Entire Agreement. This Agreement sets forth the entire agreement
of the parties hereto in respect of the subject matter contained herein and
supersede all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officer, employee or representative of any party hereto in respect of such
subject matter. Any prior agreement of the parties hereto in respect of the
subject matter contained herein is hereby terminated and canceled.
19. Shareholder Approval. The Company represents and warrants to
Newman that no shareholder approval is required for the Company to enter into
this Agreement and provide the benefits hereunder and to enter into the
agreements described in Section 4.
20. Withholding. All payments under this Agreement shall be subject
to any required withholding of Federal, state and local taxes pursuant to any
applicable law or regulation.
21. Noncontravention. The Company represents that the Company is not
prevented from entering into, or performing this Agreement by the terms of any
law, order, rule or regulation, its by-laws or certificate of incorporation, or
any agreement to which it is a party, other than which would not have a material
adverse effect on the Company's ability to enter into or perform this Agreement.
22. Section Heading. The section headings in this Employment
Agreement are for convenience of reference only, and they form no part of this
Agreement and shall not affect its interpretation.
23. Resignation and Termination. As of the Effective Date, Newman
shall resign as Chief Executive Officer of East.
11
<PAGE> 12
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.
EXCEL REALTY TRUST, INC.
a Maryland corporation
By: /s/ Gary B. Sabin
-----------------------------------------
Name: Gary B. Sabin
Title: Chief Executive Officer
/s/ William Newman
-----------------------------------------
William Newman
<PAGE> 1
EXHIBIT 10.42
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
This AMENDMENT TO EMPLOYMENT AGREEMENT (this "Amendment") is made and
entered into as of September 25, 1998, by and between Excel Realty Trust, Inc.,
a Maryland corporation (the "Company"), and Gary B. Sabin ("Executive") with
respect to that certain Employment Agreement between the Company and Executive
dated as of May 14, 1998 (the "Employment Agreement"). Capitalized terms used
and not otherwise defined herein are used with the meanings attributed thereto
in the Employment Agreement.
RECITALS
A. The Company and Executive entered into the Employment Agreement
dated as of May 14, 1998.
B. The Company and Executive now desire to amend certain terms and
provisions of the Employment Agreement as set forth herein.
AGREEMENT
IN CONSIDERATION of the premises and the mutual covenants set forth
below, the parties hereby agree as follows:
1. Relation to Employment Agreement. Except as hereby amended, the
Employment Agreement shall continue in full force and effect.
2. Compensation and Related Matters. Section 5(c) of the Employment
Agreement is hereby amended by deleting the current Section 5(c) in its entirety
and replacing it with the following:
"(c) Stock Options. Effective as of the Effective Time, Executive shall
be awarded (i) stock options (which shall be incentive stock options to the
extent such treatment is available under applicable law) to purchase 186,500
shares of Common Stock of the Company, par value $.01 per share (the "Common
Stock"), which options shall vest pro-rata over the remaining time period for
the outstanding stock options in New Plan Realty Trust held by Arnold Laubich
but in no event shall such options vest less favorably to Executive than on the
first, second, third and fourth anniversaries of the date of grant in equal
installments (collectively, the "Stock Options"); and (ii) stock options to be
awarded in the future at the times, in the amounts and on the terms awarded to
Arnold Laubich. Each share of Common Stock subject to the Stock Options shall
have an exercise price equal to the closing price of a share of Common Stock on
the date the Effective Time occurs. The Stock Options shall be subject to the
terms and conditions of the Company's 1993 Stock Option Plan (as amended, the
"Company Option Plan"). The Company hereby represents and warrants to Executive
that, at the time of grant: (a) the Company Option Plan will have sufficient
shares available to effect the grant and exercise of the Stock Options and the
Company Option Plan has been approved by its shareholders, (b) the Stock Options
will
<PAGE> 2
be properly authorized and approved by the Board and/or its compensation
committee, (c) the Common Stock underlying the Stock Options will be registered
on Form S-8 and (d) the Common Stock underlying the Stock Options will be listed
on the New York Stock Exchange."
3. Miscellaneous. This Amendment shall be governed and construed on
the same basis as the Employment Agreement, as set forth therein.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment on
the date first above written.
EXCEL REALTY TRUST, INC.,
a Maryland corporation
By: /s/ Richard B. Muir
----------------------------------------------
Name: Richard B. Muir
Title: Executive Vice President
/s/ Gary B. Sabin
----------------------------------------------
GARY B. SABIN
2
<PAGE> 1
EXHIBIT 10.43
EMPLOYMENT AGREEMENT
AGREEMENT, dated as of September 25, 1998, by and between Excel Realty
Trust, Inc., a Maryland corporation (the "Company"), and James M. Steuterman
("Executive").
RECITALS
A. Executive is currently an Executive Vice President of New Plan
Realty Trust, a Massachusetts business trust ("New Plan").
B. The Company, a wholly owned subsidiary of the Company ("Sub"),
and New Plan have entered into an Agreement and Plan of Merger (as amended, the
"Merger Agreement"), pursuant to which Sub shall merge with and into New Plan
with New Plan surviving as a wholly-owned subsidiary of the Company (the
"Merger").
C. The Company desires to employ Executive, effective as of the
time the Merger is consummated (the "Effective Time"), on the terms and
conditions set forth in this Agreement, and Executive desires to be so employed.
AGREEMENT
IN CONSIDERATION of the premises and the mutual covenants set forth
below, the parties hereby agree as follows:
1. Employment. The Company hereby agrees to employ Executive as an
Executive Vice President and Co-Chief Operating Officer, and Executive hereby
accepts such employment, on the terms and conditions hereinafter set forth.
Notwithstanding the employment of Executive by the Company, the Company shall be
entitled to pay Executive from the payroll of New Plan.
2. Term. The period of employment of Executive by the Company
hereunder (the "Employment Period") shall commence on the Effective Time of the
Merger (the "Commencement Date") and shall continue through December 31, 2001;
provided, that, commencing on January 1, 2002, and on each anniversary date
thereafter, the Employment Period shall automatically be extended for one (1)
additional year unless either party gives written notice not to extend this
Agreement prior to six (6) months before such automatic extension would be
effectuated. The Employment Period may be sooner terminated by either party in
accordance with Section 6 of this Agreement. Employment hereunder and entering
into this Agreement shall not be deemed to constitute termination of employment
of Executive with New Plan and shall not trigger any obligations or result in
the loss of any benefits resulting from an employment termination. Therefore,
without limiting the generality of the foregoing, any promissory note(s) of
Executive payable to New Plan shall not be accelerated as a result of this
Agreement or any action taken in accordance with the terms hereof.
3. Position and Duties. During the Employment Period, Executive
shall serve as an Executive Vice President and Co-Chief Operating Officer of the
Company. Executive shall have
<PAGE> 2
those powers and duties normally associated with the positions of an Executive
Vice President and Chief Operating Officer (taking into account that the Company
will have Co-Chief Operating Officers) and such other powers and duties as may
be prescribed by the Board of Directors of the Company (the "Board"). Executive
shall devote such time, attention and energies to Company affairs as are
necessary to fully perform his duties (other than absences due to illness or
vacation) for the Company. Notwithstanding the above, Executive shall be
permitted, to the extent such activities do not materially and adversely affect
the ability of Executive to fully perform his duties and responsibilities
hereunder, to (i) manage Executive's personal, financial and legal affairs, and
(ii) serve on civic or charitable boards or committees.
4. Place of Performance. The principal place of employment of
Executive shall be at the Company's corporate offices in New York, New York.
5. Compensation and Related Matters.
(a) Salary. During the Employment Period, the Company shall
pay Executive an annual base salary of $325,000 ("Base Salary"). Executive's
Base Salary shall be paid in approximately equal installments in accordance with
the Company's customary payroll practices. If Executive's Base Salary is
increased by the Company, such increased Base Salary shall then constitute the
Base Salary for all purposes of this Agreement.
(b) Bonus. The Board's compensation committee (the
"Compensation Committee") shall review Executive's performance at least annually
during each year of the Employment Period and cause the Company to award
Executive a cash bonus of up to 50% of his Base Salary which the Compensation
Committee shall reasonably determine as fairly compensating and rewarding
Executive for services rendered to the Company and/or as an incentive for
continued service to the Company, but in no event shall Executive's aggregate
bonus and Base Salary for the first full calendar year after the Effective Time
be less than the aggregate of Executive's New Plan salary immediately prior to
the Effective Time and Executive's 1997 New Plan bonus. The amount of
Executive's cash bonus shall be determined in the reasonable discretion of the
Compensation Committee and shall be dependent upon, among other things, the
achievement of certain performance levels by the Company, including, without
limitation, growth in funds from operations, and Executive's performance and
contribution to increasing the funds from operations.
(c) Expenses. The Company shall promptly reimburse Executive
for all reasonable business expenses upon the presentation of reasonably
itemized statements of such expenses in accordance with the Company's policies
and procedures now in force or as such policies and procedures may be modified
with respect to all senior executive officers of the Company.
(d) Vacation. Executive shall be entitled to the number of
weeks of vacation per year provided to the Company's senior executive officers,
but in no event less than four (4) weeks annually.
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<PAGE> 3
(e) Welfare, Pension and Incentive Benefit Plans. During the
Employment Period, Executive (and his spouse and dependents to the extent
provided therein) shall be entitled to participate in and be covered under all
the welfare benefit plans or programs maintained by the Company from time to
time for the benefit of its senior executives including, without limitation, all
medical, hospitalization, dental, accidental death and dismemberment and travel
accident insurance plans and programs. In addition, Executive shall be entitled
to receive the most extensive disability coverage provided by the Company to any
other senior executive officer of the Company. In addition, during the
Employment Period, Executive shall be eligible to participate in all pension,
retirement, savings and other employee benefit plans and programs maintained
from time to time by the Company for the benefit of its senior executives, or
any annual incentive or long-term performance plans. With respect to each such
employee benefit plan, program, policy or arrangement, service with New Plan or
any of its subsidiaries (as applicable) shall be included for purposes of
determining eligibility to participate (including waiting periods, and without
being subject to any entry date requirement after the waiting period has been
satisfied), vesting (as applicable) and entitlement to benefits. The medical
plan or plans maintained by the Company after the Effective Time shall waive all
limitations as to pre-existing conditions, exclusions and waiting periods with
respect to participation and coverage requirements. With respect to vacation
benefits provided by the Company, the vacation benefit of Executive shall
include all hours of accrued but unused vacation and sick time hours,
respectively, with New Plan or its affiliates.
(f) During the Employment Period, the Company shall provide
Executive with the use of an automobile (including the payment of vehicle
insurance) substantially comparable to the automobile currently provided to
Executive by New Plan; however, at the Company's option, Company may in lieu
thereof provide Executive with an automobile allowance in an amount sufficient
for Executive to have the use of (and pay vehicle insurance on, if not so
provided by the Company) a vehicle substantially comparable to the automobile
currently provided to Executive by New Plan.
6. Termination. Executive's employment hereunder may be terminated
during the Employment Period under the following circumstances:
(a) Death. Executive's employment hereunder shall terminate
upon his death.
(b) Disability. If, as a result of Executive's incapacity
due to physical or mental illness, Executive shall have been substantially
unable to perform his duties hereunder for an entire period of six (6)
consecutive months, and within thirty (30) days after written Notice of
Termination (as defined in Section 7(a)) is given after such six (6) month
period, Executive shall not have returned to the substantial performance of his
duties on a full-time basis, the Company shall have the right to terminate
Executive's employment hereunder for "Disability", and such termination in and
of itself shall not be, nor shall it be deemed to be, a breach of this
Agreement.
(c) Cause. The Company shall have the right to terminate
Executive's employment for Cause, and such termination in and of itself shall
not be, nor shall it be deemed to be, a breach of this Agreement. For purposes
of this Agreement, the Company shall have
3
<PAGE> 4
"Cause" to terminate Executive's employment upon Executive's:
(i) conviction of, or plea of guilty or nolo
contendere to, a felony; or
(ii) willful and continued failure to use reasonable
best efforts to substantially perform his duties hereunder (other than
such failure resulting from Executive's incapacity due to physical or
mental illness or subsequent to the issuance of a Notice of Termination
by Executive for Good Reason (as defined in Section 6(d)) after demand
for substantial performance is delivered by the Company in writing that
specifically identifies the manner in which the Company believes
Executive has not used reasonable best efforts to substantially perform
his duties; or
(iii) willful misconduct (including, but not limited
to, a willful breach of the provisions of Section 10) that is materially
economically injurious to the Company or to any entity in control of,
controlled by or under common control with the Company ("Affiliate").
For purposes of this Section 6(c), no act, or failure to act, by
Executive shall be considered "willful" unless committed in bad faith and
without a reasonable belief that the act or omission was in the best interests
of the Company or any Affiliates thereof; provided, however, that the willful
requirement outlined in paragraphs (ii) or (iii) above shall be deemed to have
occurred if the Executive's action or non-action continues for more than ten
(10) days after Executive has received written notice of the inappropriate
action or non-action. Cause shall not exist under paragraph (ii) or (iii) above
unless and until the Company has delivered to Executive a copy of a resolution
duly adopted by a majority of the Board (excluding Executive for purposes of
determining such majority) at a meeting of the Board called and held for such
purpose (after reasonable (but in no event less than thirty (30) days) notice to
Executive and an opportunity for Executive, together with his counsel, to be
heard before the Board), finding that in the good faith opinion of the Board,
Executive was guilty of the conduct set forth in paragraph (ii) or (iii) and
specifying the particulars thereof in detail. This Section 6(c) shall not
prevent Executive from challenging in any court of competent jurisdiction the
Board's determination that Cause exists or that Executive has failed to cure any
act (or failure to act) that purportedly formed the basis for the Board's
determination.
(d) Good Reason. Executive may terminate his employment for
"Good Reason" within thirty (30) days after Executive has actual knowledge of
the occurrence, without the written consent of Executive, of one of the
following events that has not been cured within thirty (30) days after written
notice thereof has been given by Executive to the Company; provided, however,
that with respect to Section 6(d) the Company shall have the right to challenge
in any court of competent jurisdiction the Executive's determination that he has
the right to terminate his employment for "Good Reason.":
(i) the termination of the Employment Agreement
between Arnold Laubich, the Chief Executive Officer of the Company as of
the Effective Time, and the Company dated as of May 14, 1998, pursuant
to Section 6(d) thereof by Laubich or by
4
<PAGE> 5
the Company without Cause;
(ii) the assignment to Executive of duties materially
and adversely inconsistent with Executive's status as an Executive Vice
President and Co-Chief Operating Officer of the Company or a material
and adverse alteration in the nature of Executive's duties and/or
responsibilities, reporting obligations, titles or authority;
(iii) a reduction by the Company in Executive's Base
Salary or a failure by the Company to pay any such amounts when due;
(iv) the relocation of the Company's executive
offices or Executive's own office location to a location that is more
than fifty (50) miles from New York, New York;
(v) any purported termination of Executive's
employment for Cause which is not effected pursuant to the procedures of
Section 6(c) (and for purposes of this Agreement, no such purported
termination shall be effective);
(vi) the Company's failure to substantially provide
any material employee benefits due to be provided to Executive;
(vii) the Company's failure to provide in all material
respects the indemnification set forth in Section 11 of this Agreement;
(viii) a Change in Control (as defined below) of the
Company; or.
(ix) Failure of the Company to provide, by giving
appropriate written notice to Executive, for two automatic one (1) year
renewals following the replacement of Arnold Laubich as Chief Executive
Officer of the Company.
Executive's right to terminate his employment hereunder for Good Reason
shall not be affected by his incapacity due to physical or mental illness.
Executive's continued employment during the thirty (30) day period referred to
above in this paragraph (d) shall not constitute consent to, or a waiver of
rights with respect to, any act or failure to act constituting Good Reason
hereunder.
For purposes of this Agreement, a "Change in Control" of the Company
means the occurrence of one of the following events:
(1) individuals who, on the Commencement Date,
constitute the Board (the "Incumbent Directors") cease for any reason to
constitute at least a majority of the Board, provided that any person
becoming a director subsequent to the Commencement Date whose election
or nomination for election was approved by a vote of a majority of the
Incumbent Directors then on the Board (either by a specific vote or by
approval of the proxy statement of the Company in which such person is
named as a nominee for
5
<PAGE> 6
director, without objection to such nomination) shall be an Incumbent
Director; provided, however, that no individual initially elected or
nominated as a director of the Company as a result of an actual or
threatened election contest with respect to directors or as a result of
any other actual or threatened solicitation of proxies by or on behalf
of any person other than the Board shall be an Incumbent Director;
(2) any "person" (as such term is defined in Section
3(a)(9) of the Securities Exchange Act of 1934 (the "Exchange Act") and
as used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act) is or
becomes, after the Commencement Date, a "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 30% or more of the combined
voting power of the Company's then outstanding securities eligible to
vote for the election of the Board (the "Company Voting Securities");
provided, however, that an event described in this paragraph (2) shall
not be deemed to be a Change in Control if any of following becomes such
a beneficial owner: (A) the Company or any majority-owned subsidiary
(provided, that this exclusion applies solely to the ownership levels of
the Company or the majority-owned subsidiary), (B) any tax-qualified,
broad-based employee benefit plan sponsored or maintained by the Company
or any majority-owned subsidiary, (C) any underwriter temporarily
holding securities pursuant to an offering of such securities, (D) any
person pursuant to a Non-Qualifying Transaction (as defined in paragraph
(3)), or (E) Executive or any group of persons including Executive (or
any entity controlled by Executive or any group of persons including
Executive);
(3) the consummation of a merger, consolidation,
share exchange or similar form of transaction involving the Company or
any of its subsidiaries, or the sale of all or substantially all of the
Company's assets (a "Business Transaction"), unless immediately
following such Business Transaction (i) more than 50% of the total
voting power of the entity resulting from such Business Transaction or
the entity acquiring the Company's assets in such Business Transaction
(the "Surviving Corporation") is beneficially owned, directly or
indirectly, by the Company's shareholders immediately prior to any such
Business Transaction, and (ii) no person (other than the persons set
forth in clauses (A), (B), or (C) of paragraph (2) above or any
tax-qualified, broad-based employee benefit plan of the Surviving
Corporation or its Affiliates) beneficially owns, directly or
indirectly, 30% or more of the total voting power of the Surviving
Corporation (a "Non-Qualifying Transaction"); or
(4) Board approval of a liquidation or dissolution
of the Company, unless the voting common equity interests of an ongoing
entity (other than a liquidating trust) are beneficially owned, directly
or indirectly, by the Company's shareholders in substantially the same
proportions as such shareholders owned the Company's outstanding voting
common equity interests immediately prior to such liquidation and such
ongoing entity assumes all existing obligations of the Company to
Executive under this Agreement and the Stock Option Agreements pursuant
to which the Stock Options were granted.
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<PAGE> 7
(e) Without Good Reason. Executive shall have the right to
terminate his employment hereunder without Good Reason by providing the Company
with a Notice of Termination, and such termination shall not in and of itself
be, nor shall it be deemed to be, a breach of this Agreement.
7. Termination Procedure.
(a) Notice of Termination. Any termination of Executive's
employment by the Company or by Executive during the Employment Period (other
than termination pursuant to Section 6(a)) shall be communicated by written
Notice of Termination to the other party hereto in accordance with Section 14.
For purposes of this Agreement, a "Notice of Termination" shall mean a notice
which shall indicate the specific termination provision in this Agreement relied
upon and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of Executive's employment under the
provision so indicated.
(b) Date of Termination. "Date of Termination" shall mean
(i) if Executive's employment is terminated by his death, the date of his death,
(ii) if Executive's employment is terminated pursuant to Section 6(b), thirty
(30) days after Notice of Termination (provided that Executive shall not have
returned to the substantial performance of his duties on a full-time basis
during such thirty (30) day period), and (iii) if Executive's employment is
terminated for any other reason, the date on which a Notice of Termination is
given or any later date (within thirty (30) days after the giving of such
notice) set forth in such Notice of Termination.
8. Compensation Upon Termination or During Disability. In the event
Executive is disabled or his employment terminates during the Employment Period,
the Company shall provide Executive with the payments and benefits set forth
below. Executive acknowledges and agrees that the payments set forth in this
Section 8 constitute liquidated damages for termination of his employment during
the Employment Period.
(a) Termination By Company Without Cause or By Executive for
Good Reason. If Executive's employment is terminated by the Company without
Cause or by Executive for Good Reason:
(i) the Company shall pay to Executive (A) his Base
Salary and accrued vacation pay through the Date of Termination, as soon
as practicable following the Date of Termination, and (B) a payment
equal to two times Executive's average total compensation (Base Salary
plus bonus) for the preceding two (2) fiscal years of the Company ending
prior to termination as soon as practicable following the Date of
Termination (for this purpose Executive's compensation earned with New
Plan shall be used to the extent necessary); provided, however, if the
Executive has previously given a notice not to extend the Employment
Period pursuant to Section 2, the payment referred to in this subsection
(i) shall not be made;
(ii) the Company shall maintain in full force and
effect, for the
7
<PAGE> 8
continued benefit of Executive, his spouse and his dependents for a
period of three (3) years following the Date of Termination the medical,
hospitalization, dental, and life insurance programs in which Executive,
his spouse and his dependents were participating immediately prior to
the Date of Termination at the level in effect and upon substantially
the same terms and conditions (including without limitation
contributions required by Executive for such benefits) as existed
immediately prior to the Date of Termination; provided, that if
Executive, his spouse or his dependents cannot continue to participate
in the Company programs providing such benefits, the Company shall
arrange to provide Executive, his spouse and his dependents with the
economic equivalent of such benefits which they otherwise would have
been entitled to receive under such plans and programs ("Continued
Benefits"), provided, that such Continued Benefits shall terminate on
the date or dates Executive receives substantially equivalent coverage
and benefits, without waiting period or pre-existing condition
limitations, under the plans and programs of a subsequent employer (such
coverage and benefits to be determined on a coverage-by-coverage, or
benefit-by-benefit, basis); and
(iii) the Company shall reimburse Executive pursuant
to Section 5(c) for reasonable expenses incurred, but not paid prior to
such termination of employment;
(iv) Executive shall be entitled to any other rights,
compensation and/or benefits as may be due to Executive in accordance
with the terms and provisions of any agreements, plans or programs of
the Company;
(v) all stock options and other pension or
employment benefits granted to Executive more than one year prior to the
Date of Termination shall fully vest as of the Date of Termination
(inclusive of any granted to Executive by New Plan prior to the
Effective Time);
(vi) the Company shall forgive and cancel all loans
made by the Company or any Affiliate to Executive during the Employment
Period, if any, and shall take all actions and execute all documents
necessary to evidence the forgiveness and cancellation of such loans;
and
(vii) the Company shall eliminate any and all
restrictions on Executive's ability either to engage in any activities,
directly or indirectly, in competition with the Company (including,
without limitation, the restrictions set forth in Section 10(c) of this
Agreement but not the restrictions set forth in Sections 10(a) and (b)),
or to make any investment in competition with the Company, and shall
execute all documents necessary or reasonably requested by Executive to
reflect such elimination of restrictions.
The foregoing notwithstanding, the total of the severance
payments payable under this Section 8(a) shall be reduced to the extent the
payment of such amounts would cause Executive's total termination benefits (as
determined by Executive's tax advisor) to constitute an "excess" parachute
payment under Section 280G of the Internal Revenue Code of 1986, as amended (the
"Code") and by reason of such excess parachute payment Executive would be
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subject to an excise tax under Section 4999(a) of the Code, but only if
Executive determines that the after-tax value of the termination benefits
calculated with the foregoing restriction exceed those calculated without the
foregoing restriction.
(b) Cause or By Executive Without Good Reason. If
Executive's employment is terminated by the Company for Cause or by Executive
(other than for Good Reason):
(i) the Company shall pay Executive his Base Salary
and, to the extent required by law or the Company's vacation policy, his
accrued vacation pay through the Date of Termination, as soon as
practicable following the Date of Termination; and
(ii) the Company shall reimburse Executive pursuant
to Section 5(c) for reasonable expenses incurred, but not paid prior to
such termination of employment, unless such termination resulted from a
misappropriation of Company funds; and
(iii) Executive shall be entitled to any other rights,
compensation and/or benefits as may be due to Executive in accordance
with the terms and provisions of any agreements, plans or programs of
the Company.
(c) Disability. During any period that Executive fails to
perform his duties hereunder as a result of incapacity due to physical or mental
illness ("Disability Period"), Executive shall continue to receive his full Base
Salary set forth in Section 5(a) until his employment is terminated pursuant to
Section 6(b). In the event Executive's employment is terminated for Disability
pursuant to Section 6(b):
(i) the Company shall pay to Executive (A) his Base
Salary and accrued vacation pay through the Date of Termination, as soon
as practicable following the Date of Termination, and (B) continued Base
Salary (as provided for in Section 5(a)) and Continued Benefits for the
longer of (i) six (6) months or (ii) the date on which Executive becomes
entitled to long-term disability benefits under the applicable plan or
program of the Company paying the benefits described in Section 5(h), up
to a maximum of three (3) years of Base Salary continuation; and
(ii) the Company shall reimburse Executive pursuant
to Section 5(c) for reasonable expenses incurred, but not paid prior to
such termination of employment; and
(iii) Executive shall be entitled to any other rights,
compensation and/or benefits as may be due to Executive in accordance
with the terms and provisions of any agreements, plans or programs of
the Company.
(d) Death. If Executive's employment is terminated by his
death:
(i) the Company shall pay in a lump sum to
Executive's beneficiary, legal representatives or estate, as the case
may be, Executive's Base Salary through the
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Date of Termination and one (1) times Executive's annual rate of Base
Salary, and shall provide Executive's spouse and dependents with
Continued Benefits for one (1) year;
(ii) the Company shall reimburse Executive's
beneficiary, legal representatives, or estate, as the case may be,
pursuant to Section 5(c) for reasonable expenses incurred, but not paid
prior to such termination of employment; and
(iii) Executive's beneficiary, legal representatives
or estate, as the case may be, shall be entitled to any other rights,
compensation and benefits as may be due to any such persons or estate in
accordance with the terms and provisions of any agreements, plans or
programs of the Company.
(e) Failure to Extend. Subject to Section 6(d)(ix), a
failure to extend the Agreement pursuant to Section 2 by either party shall not
be treated as a termination of Executive's employment for purposes of this
Agreement.
9. Mitigation. Executive shall not be required to mitigate amounts
payable under this Agreement by seeking other employment or otherwise, and there
shall be no offset against amounts due Executive under this Agreement on account
of subsequent employment. Additionally, amounts owed to Executive under this
Agreement shall not be offset by any claims the Company may have against
Executive, and the Company's obligation to make the payments provided for in
this Agreement and otherwise to perform its obligations hereunder shall not be
affected by any other circumstances, including, without limitation, any
counterclaim, recoupment, defense or other right which the Company may have
against Executive or others.
10. Confidential Information, Ownership of Documents;
Non-Competition.
(a) Confidential Information. Executive shall hold in a
fiduciary capacity for the benefit of the Company all trade secrets and
confidential information, knowledge or data relating to the Company and its
businesses and investments, which shall have been obtained by Executive during
Executive's employment by the Company and which is not generally available
public knowledge (other than by acts by Executive in violation of this
Agreement). Except as may be required or appropriate in connection with his
carrying out his duties under this Agreement, Executive shall not, without the
prior written consent of the Company or as may otherwise be required by law or
any legal process, or as is necessary in connection with any adversarial
proceeding against the Company (in which case Executive shall use his reasonable
best efforts in cooperating with the Company in obtaining a protective order
against disclosure by a court of competent jurisdiction), communicate or divulge
any such trade secrets, information, knowledge or data to anyone other than the
Company and those designated by the Company or on behalf of the Company in the
furtherance of its business or to perform duties hereunder.
(b) Removal of Documents; Rights to Products. All records,
files, drawings, documents, models, equipment, and the like relating to the
Company's business, which Executive has control over shall not be removed from
the Company's premises without its written consent,
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unless such removal is in the furtherance of the Company's business or is in
connection with Executive's carrying out his duties under this Agreement and, if
so removed, shall be returned to the Company promptly after termination of
Executive's employment hereunder, or otherwise promptly after removal if such
removal occurs following termination of employment. Executive shall assign to
the Company all rights to trade secrets and other products relating to the
Company's business developed by him alone or in conjunction with others at any
time while employed by the Company.
(c) Protection of Business. During the Employment Period and
until the first anniversary of Executive's Date of Termination (but only in the
event Executive is terminated by the Company for Cause or Executive terminates
employment without Good Reason), the Executive will not (i) engage, anywhere
within the geographical areas in which the Company or any of its Affiliates (the
"Designated Entities") are conducting their business operations or providing
services as of the Date of Termination, in any business which is being engaged
in by the Designated Entities as of the Date of Termination or pursue or attempt
to develop any project known to Executive and which the Designated Entities are
pursuing, developing or attempting to develop as of the Date of Termination,
unless such project has been inactive for over nine (9) months (a "Project"),
directly or indirectly, alone, in association with or as a shareholder,
principal, agent, partner, officer, director, employee or consultant of any
other organization, (ii) divert to any entity which is engaged in any business
conducted by the Designated Entities in the same geographic area as the
Designated Entities, any Project or any customer of any of the Designated
Entities, or (iii) solicit any officer, employee (other than secretarial staff)
or consultant of any of the Designated Entities to leave the employ of any of
the Designated Entities. Notwithstanding the preceding sentence, Executive shall
not be prohibited from owning less than three (3%) percent of any publicly
traded corporation, whether or not such corporation is in competition with the
Company, and Executive shall not be prohibited from owning equity securities of,
and acting as an officer and director of, Legacy. If, at any time, the
provisions of this Section 10(c) shall be determined to be invalid or
unenforceable, by reason of being vague or unreasonable as to area, duration or
scope of activity, this Section 10(c) shall be considered divisible and shall
become and be immediately amended to only such area, duration and scope of
activity as shall be determined to be reasonable and enforceable by the court or
other body having jurisdiction over the matter; and Executive agrees that this
Section 10(c) as so amended shall be valid and binding as though any invalid or
unenforceable provision had not been included herein.
(d) Injunctive Relief. In the event of a breach or
threatened breach of this Section 10, Executive agrees that the Company shall be
entitled to injunctive relief in a court of appropriate jurisdiction to remedy
any such breach or threatened breach, Executive acknowledging that damages would
be inadequate and insufficient.
(e) Continuing Operation. Except as specifically provided in
this Section 10, the termination of Executive's employment or of this Agreement
shall have no effect on the continuing operation of this Section 10.
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11. Indemnification.
(a) General. The Company agrees that if Executive is made a
party or a threatened to be made a party to any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a "Proceeding"), by
reason of the fact that Executive is or was a trustee, director or officer of
the Company or any subsidiary of the Company or is or was serving at the request
of the Company or any subsidiary as a trustee, director, officer, member,
employee or agent of another corporation or a partnership, joint venture, trust
or other enterprise, including, without limitation, service with respect to
employee benefit plans, whether or not the basis of such Proceeding is alleged
action in an official capacity as a trustee, director, officer, member, employee
or agent while serving as a trustee, director, officer, member, employee or
agent, Executive shall be indemnified and held harmless by the Company to the
fullest extent authorized by Maryland law, as the same exists or may hereafter
be amended, against all Expenses incurred or suffered by Executive in connection
therewith, and such indemnification shall continue as to Executive even if
Executive has ceased to be an officer, director, trustee or agent, or is no
longer employed by the Company and shall inure to the benefit of his heirs,
executors and administrators.
(b) Expenses. As used in this Agreement, the term "Expenses"
shall include, without limitation, damages, losses, judgments, liabilities,
fines, penalties, excise taxes, settlements, and costs, attorneys' fees,
accountants' fees, and disbursements and costs of attachment or similar bonds,
investigations, and any expenses of establishing a right to indemnification
under this Agreement.
(c) Enforcement. If a claim or request under this Agreement
is not paid by the Company or on its behalf, within thirty (30) days after a
written claim or request has been received by the Company, Executive may at any
time thereafter bring suit against the Company to recover the unpaid amount of
the claim or request and if successful in whole or in part, Executive shall be
entitled to be paid also the expenses of prosecuting such suit. All obligations
for indemnification hereunder shall be subject to, and paid in accordance with,
applicable Maryland law.
(d) Partial Indemnification. If Executive is entitled under
any provision of this Agreement to indemnification by the Company for some or a
portion of any Expenses, but not, however, for the total amount thereof, the
Company, shall nevertheless indemnify Executive for the portion of such Expenses
to which Executive is entitled.
(e) Advances of Expenses. Expenses incurred by Executive in
connection with any Proceeding shall be paid by the Company in advance upon
request of Executive that the Company pay such Expenses; but, only in the event
that Executive shall have delivered in writing to the Company (i) an undertaking
to reimburse the Company for Expenses with respect to which Executive is not
entitled to indemnification and (ii) an affirmation of his good faith belief
that the standard of conduct necessary for indemnification by the Company has
been met.
(f) Notice of Claim. Executive shall give to the Company
notice of any claim
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made against him for which indemnification will or could be sought under this
Agreement. In addition, Executive shall give the Company such information and
cooperation as it may reasonably require and as shall be within Executive's
power and at such times and places as are convenient for Executive.
(g) Defense of Claim. With respect to any Proceeding as to
which Executive notifies the Company of the commencement thereof:
(i) The Company will be entitled to participate
therein at its own expense; and
(ii) Except as otherwise provided below, to the
extent that it may wish, the Company will be entitled to assume the
defense thereof, with counsel reasonably satisfactory to Executive,
which in the Company's sole discretion may be regular counsel to the
Company and may be counsel to other officers and directors of the
Company or any subsidiary. Executive also shall have the right to employ
his own counsel in such action, suit or proceeding if he reasonably
concludes that failure to do so would involve a conflict of interest
between the Company and Executive, and under such circumstances the fees
and expenses of such counsel shall be at the expense of the Company.
(iii) The Company shall not be liable to indemnify
Executive under this Agreement for any amounts paid in settlement of any
action or claim effected without its written consent. The Company shall
not settle any action or claim in any manner which would impose any
penalty or limitation on Executive without Executive's written consent.
Neither the Company nor Executive will unreasonably withhold or delay
their consent to any proposed settlement.
(h) Non-exclusivity. The right to indemnification and the
payment of expenses incurred in defending a Proceeding in advance of its final
disposition conferred in this Section 11 shall not be exclusive of any other
right which Executive may have or hereafter may acquire under any statute,
provision of the declaration of trust or certificate of incorporation or by-laws
of the Company or any subsidiary, agreement, vote of shareholders or
disinterested directors or trustees or otherwise.
12. Legal Fees and Expenses. If any contest or dispute shall arise
between the Company and Executive regarding any provision of this Agreement, the
Company shall reimburse Executive for all legal fees and expenses reasonably
incurred by Executive in connection with such contest or dispute, but only if
Executive is successful in respect of substantially all of Executive's claims
brought and pursued in connection with such contest or dispute. Such
reimbursement shall be made as soon as practicable following the final
resolution of such contest or dispute to the extent the Company receives
reasonable written evidence of such fees and expenses.
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13. Successors; Binding Agreement.
(a) Company's Successors. No rights or obligations of the
Company under this Agreement may be assigned or transferred except that the
Company will require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
and/or assets of the Company to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place. As used in this
Agreement, "Company" shall mean the Company as herein before defined and any
successor to its business and/or assets (by merger, purchase or otherwise) which
executes and delivers the agreement provided for in this Section 13 or which
otherwise becomes bound by all the terms and provisions of this Agreement by
operation of law.
(b) Executive's Successors. No rights or obligations of
Executive under this Agreement may be assigned or transferred by Executive other
than his rights to payments or benefits hereunder, which may be transferred only
by will or the laws of descent and distribution. Upon Executive's death, this
Agreement and all rights of Executive hereunder shall inure to the benefit of
and be enforceable by Executive's beneficiary or beneficiaries, personal or
legal representatives, or estate, to the extent any such person succeeds to
Executive's interests under this Agreement. Executive shall be entitled to
select and change a beneficiary or beneficiaries to receive any benefit or
compensation payable hereunder following Executive's death by giving the Company
written notice thereof. In the event of Executive's death or a judicial
determination of his incompetence, reference in this Agreement to Executive
shall be deemed, where appropriate, to refer to his beneficiary(ies), estate or
other legal representative(s). If Executive should die following his Date of
Termination while any amounts would still be payable to him hereunder if he had
continued to live, all such amounts unless otherwise provided herein shall be
paid in accordance with the terms of this Agreement to such person or persons so
appointed in writing by Executive, or otherwise to his legal representatives or
estate.
14. Notice. All notices or other communications which are required
or permitted hereunder shall be in writing and sufficient if delivered
personally, or sent by nationally-recognized, overnight courier or by registered
or certified mail, return receipt requested and postage prepaid, addressed as
follows:
If to Executive:
James M. Steuterman
c/o New Plan Excel Realty Trust, Inc.
1120 Ave of the Americas
New York, NY 10036
If to the Company:
New Plan Excel Realty Trust, Inc.
1120 Ave of the Americas
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New York, NY 10036
Attn: CEO
or to such other address as any party may have furnished to the others in
writing in accordance herewith. All such notices and other communications shall
be deemed to have been received (a) in the case of personal delivery, on the
date of such delivery, (b) in the case of a telecopy, when the party receiving
such telecopy shall have confirmed receipt of the communication, (c) in the case
of delivery by nationally-recognized, overnight courier, on the business day
following dispatch and (d) in the case of mailing, on the third business day
following such mailing.
15. Miscellaneous. No provisions of this Agreement may be amended,
modified, or waived unless such amendment or modification is agreed to in
writing signed by Executive and by a duly authorized officer of the Company, and
such waiver is set forth in writing and signed by the party to be charged. No
waiver by either party hereto at any time of any breach by the other party
hereto of any condition or provision of this Agreement to be performed by such
other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not set forth
expressly in this Agreement. The respective rights and obligations of the
parties hereunder of this Agreement shall survive Executive's termination of
employment and the termination of this Agreement to the extent necessary for the
intended preservation of such rights and obligations. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of New York without regard to its conflicts of law
principles.
16. Validity. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
17. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
18. Entire Agreement. This Agreement sets forth the entire agreement
of the parties hereto in respect of the subject matter contained herein and
supersede all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officer, employee or representative of any party hereto in respect of such
subject matter. Any prior agreement of the parties hereto in respect of the
subject matter contained herein is hereby terminated and canceled.
19. Shareholder Approval. The Company represents and warrants to
Executive that no shareholder approval is required for the Company to enter into
this Agreement and provide the benefits hereunder and to enter into the
agreements described in Section 5.
20. Withholding. All payments hereunder shall be subject to any
required
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withholding of Federal, state and local taxes pursuant to any applicable law or
regulation.
21. Noncontravention. The Company represents that the Company is not
prevented from entering into, or performing this Agreement by the terms of any
law, order, rule or regulation, its by-laws or certificate of incorporation, or
any agreement to which it is a party, other than which would not have a material
adverse effect on the Company's ability to enter into or perform this Agreement.
22. Section Headings. The section headings in this Employment
Agreement are for convenience of reference only, and they form no part of this
Agreement and shall not affect its interpretation.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.
EXCEL REALTY TRUST, INC.,
a Maryland corporation
By: /s/ Richard B. Muir
---------------------------------------------
Name: Richard B. Muir
Title: Executive Vice President
/s/ James M. Steuterman
---------------------------------------------
James M. Steuterman
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EXHIBIT 10.44
EMPLOYMENT AGREEMENT
AGREEMENT, dated as of September 25, 1998, by and between Excel Realty
Trust, Inc., a Maryland corporation (the "Company"), and Richard B. Muir
("Executive").
RECITALS
A. Executive is currently an Executive Vice President and Secretary
of the Company.
B. The Company, a wholly owned subsidiary of the Company ("Sub"),
and New Plan Realty Trust, a Massachusetts business trust ("New Plan"), have
entered into an Agreement and Plan of Merger (as amended, the "Merger
Agreement"), pursuant to which Sub shall merge with and into New Plan with New
Plan surviving as a wholly-owned subsidiary of the Company (the "Merger").
C. The Company desires to employ Executive, effective as of the
time the Merger is consummated (the "Effective Time"), on the terms and
conditions set forth in this Agreement, and Executive desires to be so employed.
AGREEMENT
IN CONSIDERATION of the premises and the mutual covenants set forth
below, the parties hereby agree as follows:
1. Employment. The Company hereby agrees to employ Executive as an
Executive Vice President and Co-Chief Operating Officer, and Executive hereby
accepts such employment, on the terms and conditions hereinafter set forth.
2. Term. The period of employment of Executive by the Company
hereunder (the "Employment Period") shall commence on the Effective Time of the
Merger (the "Commencement Date") and shall continue through December 31, 2001;
provided, that, commencing on January 1, 2002, and on each anniversary date
thereafter, the Employment Period shall automatically be extended for one (1)
additional year unless either party gives written notice not to extend this
Agreement prior to six (6) months before such automatic extension would be
effectuated. The Employment Period may be sooner terminated by either party in
accordance with Section 6 of this Agreement.
3. Position and Duties. During the Employment Period, Executive
shall serve as an Executive Vice President and Co-Chief Operating Officer of the
Company. Executive shall have those powers and duties normally associated with
the positions of an Executive Vice President and Chief Operating Officer (taking
into account that the Company will have Co-Chief Operating Officers) and such
other powers and duties as may be prescribed by the Board of Directors of the
Company (the "Board"). Executive shall devote such time, attention and energies
to Company affairs as are necessary to fully perform his duties (other than
absences due to illness or vacation) for the Company. Notwithstanding the above,
Executive shall be
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permitted, to the extent such activities do not materially and adversely affect
the ability of Executive to fully perform his duties and responsibilities
hereunder, to (i) serve as an officer and director of Excel Legacy Corporation,
a Delaware corporation ("Legacy"), (ii) manage Executive's personal, financial
and legal affairs, and (iii) serve on civic or charitable boards or committees.
4. Place of Performance. The principal place of employment of
Executive shall be at the Company's operating offices in San Diego, California.
5. Compensation and Related Matters.
(a) Salary. During the Employment Period, the Company shall
pay Executive an annual base salary of $325,000 ("Base Salary"). With respect to
the services to be performed by Executive for Legacy from time to time,
agreements between the Company and Legacy provide for reimbursement to Company
by Legacy of a portion of the salary, bonus, and other compensation benefits
payable hereunder, none of which reimbursement shall accrue to Executive.
Executive's Base Salary shall be paid in approximately equal installments in
accordance with the Company's customary payroll practices. If Executive's Base
Salary is increased by the Company, such increased Base Salary shall then
constitute the Base Salary for all purposes of this Agreement.
(b) Bonus. The Board's compensation committee (the
"Compensation Committee") shall review Executive's performance at least annually
during each year of the Employment Period and cause the Company to award
Executive a cash bonus of up to 50% of his Base Salary which the Compensation
Committee shall reasonably determine as fairly compensating and rewarding
Executive for services rendered to the Company and/or as an incentive for
continued service to the Company, but in no event shall Executive's aggregate
bonus and Base Salary for the first full calendar year after the Effective Time
be less than the aggregate of Executive's salary immediately prior to the
Effective Time and Executive's 1997 bonus. The amount of Executive's cash bonus
shall be determined in the reasonable discretion of the Compensation Committee
and shall be dependent upon, among other things, the achievement of certain
performance levels by the Company, including, without limitation, growth in
funds from operations, and Executive's performance and contribution to
increasing the funds from operations.
(c) Expenses. The Company shall promptly reimburse Executive
for all reasonable business expenses upon the presentation of reasonably
itemized statements of such expenses in accordance with the Company's policies
and procedures now in force or as such policies and procedures may be modified
with respect to all senior executive officers of the Company.
(d) Vacation. Executive shall be entitled to the number of
weeks of vacation per year provided to the Company's senior executive officers,
but in no event less than four (4) weeks annually.
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(e) Welfare, Pension and Incentive Benefit Plans. During the
Employment Period, Executive (and his spouse and dependents to the extent
provided therein) shall be entitled to participate in and be covered under all
the welfare benefit plans or programs maintained by the Company from time to
time for the benefit of its senior executives including, without limitation, all
medical, hospitalization, dental, accidental death and dismemberment and travel
accident insurance plans and programs. In addition, during the Employment
Period, Executive shall be eligible to participate in all pension, retirement,
savings and other employee benefit plans and programs maintained from time to
time by the Company for the benefit of its senior executives, or any annual
incentive or long-term performance plans. In addition, during the Employment
Period, Executive shall continue to receive the disability coverage currently
carried for the benefit of Executive by the Company.
(f) During the Employment Period, the Company shall provide
Executive with an automobile allowance of at least $8,000 per year.
6. Termination. Executive's employment hereunder may be terminated
during the Employment Period under the following circumstances:
(a) Death. Executive's employment hereunder shall terminate
upon his death.
(b) Disability. If, as a result of Executive's incapacity
due to physical or mental illness, Executive shall have been substantially
unable to perform his duties hereunder for an entire period of six (6)
consecutive months, and within thirty (30) days after written Notice of
Termination (as defined in Section 7(a)) is given after such six (6) month
period, Executive shall not have returned to the substantial performance of his
duties on a full-time basis, the Company shall have the right to terminate
Executive's employment hereunder for "Disability", and such termination in and
of itself shall not be, nor shall it be deemed to be, a breach of this
Agreement.
(c) Cause. The Company shall have the right to terminate
Executive's employment for Cause, and such termination in and of itself shall
not be, nor shall it be deemed to be, a breach of this Agreement. For purposes
of this Agreement, the Company shall have "Cause" to terminate Executive's
employment upon Executive's:
(i) conviction of, or plea of guilty or nolo
contendere to, a felony; or
(ii) willful and continued failure to use reasonable
best efforts to substantially perform his duties hereunder (other than
such failure resulting from Executive's incapacity due to physical or
mental illness or subsequent to the issuance of a Notice of Termination
by Executive for Good Reason (as defined in Section 6(d)) after demand
for substantial performance is delivered by the Company in writing that
specifically identifies the manner in which the Company believes
Executive has not used reasonable best efforts to substantially perform
his duties; or
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(iii) willful misconduct (including, but not limited
to, a willful breach of the provisions of Section 10) that is materially
economically injurious to the Company or to any entity in control of,
controlled by or under common control with the Company ("Affiliate").
For purposes of this Section 6(c), no act, or failure to act, by
Executive shall be considered "willful" unless committed in bad faith and
without a reasonable belief that the act or omission was in the best interests
of the Company or any Affiliates thereof; provided, however, that the willful
requirement outlined in paragraphs (ii) or (iii) above shall be deemed to have
occurred if the Executive's action or non-action continues for more than ten
(10) days after Executive has received written notice of the inappropriate
action or non-action. Cause shall not exist under paragraph (ii) or (iii) above
unless and until the Company has delivered to Executive a copy of a resolution
duly adopted by a majority of the Board (excluding Executive for purposes of
determining such majority) at a meeting of the Board called and held for such
purpose (after reasonable (but in no event less than thirty (30) days) notice to
Executive and an opportunity for Executive, together with his counsel, to be
heard before the Board), finding that in the good faith opinion of the Board,
Executive was guilty of the conduct set forth in paragraph (ii) or (iii) and
specifying the particulars thereof in detail. This Section 6(c) shall not
prevent Executive from challenging in any court of competent jurisdiction the
Board's determination that Cause exists or that Executive has failed to cure any
act (or failure to act) that purportedly formed the basis for the Board's
determination.
(d) Good Reason. Executive may terminate his employment for
"Good Reason" within thirty (30) days after Executive has actual knowledge of
the occurrence, without the written consent of Executive, of one of the
following events that has not been cured within thirty (30) days after written
notice thereof has been given by Executive to the Company; provided, however,
that with respect to Section 6(d) the Company shall have the right to challenge
in any court of competent jurisdiction the Executive's determination that he has
the right to terminate his employment for "Good Reason.":
(i) the termination of the Employment Agreement
between Gary B. Sabin, the President of the Company as of the Effective
Time, and the Company dated as of May 14, 1998, pursuant to Section 6(d)
thereof or by the Company without Cause;
(ii) the assignment to Executive of duties materially
and adversely inconsistent with Executive's status as an Executive Vice
President and Co-Chief Operating Officer, of the Company or a material
and adverse alteration in the nature of Executive's duties and/or
responsibilities, reporting obligations, titles or authority;
(iii) a reduction by the Company in Executive's Base
Salary or a failure by the Company to pay any such amounts when due;
(iv) the relocation of the Company's San Diego
operating office or Executive's own office location to a location more
than thirty (30) miles from San Diego, California;
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(v) any purported termination of Executive's
employment for Cause which is not effected pursuant to the procedures of
Section 6(c) (and for purposes of this Agreement, no such purported
termination shall be effective);
(vi) the Company's failure to substantially provide
any material employee benefits due to be provided to Executive;
(vii) the Company's failure to provide in all material
respects the indemnification set forth in Section 11 of this Agreement;
or
(viii) a Change in Control (as defined below) of the
Company.
Executive's right to terminate his employment hereunder for Good Reason
shall not be affected by his incapacity due to physical or mental illness.
Executive's continued employment during the thirty (30) day period referred to
above in this paragraph (d) shall not constitute consent to, or a waiver of
rights with respect to, any act or failure to act constituting Good Reason
hereunder.
For purposes of this Agreement, a "Change in Control" of the Company
means the occurrence of one of the following events:
(1) individuals who, on the Commencement Date,
constitute the Board (the "Incumbent Directors") cease for any reason to
constitute at least a majority of the Board, provided that any person
becoming a director subsequent to the Commencement Date whose election
or nomination for election was approved by a vote of a majority of the
Incumbent Directors then on the Board (either by a specific vote or by
approval of the proxy statement of the Company in which such person is
named as a nominee for director, without objection to such nomination)
shall be an Incumbent Director; provided, however, that no individual
initially elected or nominated as a director of the Company as a result
of an actual or threatened election contest with respect to directors or
as a result of any other actual or threatened solicitation of proxies by
or on behalf of any person other than the Board shall be an Incumbent
Director;
(2) any "person" (as such term is defined in Section
3(a)(9) of the Securities Exchange Act of 1934 (the "Exchange Act") and
as used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act) is or
becomes, after the Commencement Date, a "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 30% or more of the combined
voting power of the Company's then outstanding securities eligible to
vote for the election of the Board (the "Company Voting Securities");
provided, however, that an event described in this paragraph (2) shall
not be deemed to be a Change in Control if any of following becomes such
a beneficial owner: (A) the Company or any majority-owned subsidiary
(provided, that this exclusion applies solely to the ownership levels of
the Company or the majority-owned subsidiary), (B) any tax-qualified,
broad-based
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employee benefit plan sponsored or maintained by the Company or any
majority-owned subsidiary, (C) any underwriter temporarily holding
securities pursuant to an offering of such securities, (D) any person
pursuant to a Non-Qualifying Transaction (as defined in paragraph (3)),
or (E) Executive or any group of persons including Executive (or any
entity controlled by Executive or any group of persons including
Executive);
(3) the consummation of a merger, consolidation,
share exchange or similar form of transaction involving the Company or
any of its subsidiaries, or the sale of all or substantially all of the
Company's assets (a "Business Transaction"), unless immediately
following such Business Transaction (i) more than 50% of the total
voting power of the entity resulting from such Business Transaction or
the entity acquiring the Company's assets in such Business Transaction
(the "Surviving Corporation") is beneficially owned, directly or
indirectly, by the Company's shareholders immediately prior to any such
Business Transaction, and (ii) no person (other than the persons set
forth in clauses (A), (B), or (C) of paragraph (2) above or any
tax-qualified, broad-based employee benefit plan of the Surviving
Corporation or its Affiliates) beneficially owns, directly or
indirectly, 30% or more of the total voting power of the Surviving
Corporation (a "Non-Qualifying Transaction"); or
(4) Board approval of a liquidation or dissolution
of the Company, unless the voting common equity interests of an ongoing
entity (other than a liquidating trust) are beneficially owned, directly
or indirectly, by the Company's shareholders in substantially the same
proportions as such shareholders owned the Company's outstanding voting
common equity interests immediately prior to such liquidation and such
ongoing entity assumes all existing obligations of the Company to
Executive under this Agreement and the Stock Option Agreements pursuant
to which the Stock Options were granted.
(e) Without Good Reason. Executive shall have the right to
terminate his employment hereunder without Good Reason by providing the Company
with a Notice of Termination, and such termination shall not in and of itself
be, nor shall it be deemed to be, a breach of this Agreement.
7. Termination Procedure.
(a) Notice of Termination. Any termination of Executive's
employment by the Company or by Executive during the Employment Period (other
than termination pursuant to Section 6(a)) shall be communicated by written
Notice of Termination to the other party hereto in accordance with Section 14.
For purposes of this Agreement, a "Notice of Termination" shall mean a notice
which shall indicate the specific termination provision in this Agreement relied
upon and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of Executive's employment under the
provision so indicated.
(b) Date of Termination. "Date of Termination" shall mean
(i) if Executive's employment is
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terminated by his death, the date of his death, (ii) if Executive's employment
is terminated pursuant to Section 6(b), thirty (30) days after Notice of
Termination (provided that Executive shall not have returned to the substantial
performance of his duties on a full-time basis during such thirty (30) day
period), and (iii) if Executive's employment is terminated for any other reason,
the date on which a Notice of Termination is given or any later date (within
thirty (30) days after the giving of such notice) set forth in such Notice of
Termination.
8. Compensation Upon Termination or During Disability. In the event
Executive is disabled or his employment terminates during the Employment Period,
the Company shall provide Executive with the payments and benefits set forth
below. Executive acknowledges and agrees that the payments set forth in this
Section 8 constitute liquidated damages for termination of his employment during
the Employment Period.
(a) Termination By Company Without Cause or By Executive for
Good Reason. If Executive's employment is terminated by the Company without
Cause or by Executive for Good Reason:
(i) the Company shall pay to Executive (A) his Base
Salary and accrued vacation pay through the Date of Termination, as soon
as practicable following the Date of Termination, and (B) a payment
equal to two times Executive's average total compensation (Base Salary
plus bonus) for the preceding two (2) fiscal years of the Company ending
prior to termination as soon as practicable following the Date of
Termination; provided, however, if the Executive has previously given a
notice not to extend the Employment Period pursuant to Section 2, the
payment referred to in this subsection (i) shall not be made;
(ii) the Company shall maintain in full force and
effect, for the continued benefit of Executive, his spouse and his
dependents for a period of three (3) years following the Date of
Termination the medical, hospitalization, dental, and life insurance
programs in which Executive, his spouse and his dependents were
participating immediately prior to the Date of Termination at the level
in effect and upon substantially the same terms and conditions
(including without limitation contributions required by Executive for
such benefits) as existed immediately prior to the Date of Termination;
provided, that if Executive, his spouse or his dependents cannot
continue to participate in the Company programs providing such benefits,
the Company shall arrange to provide Executive, his spouse and his
dependents with the economic equivalent of such benefits which they
otherwise would have been entitled to receive under such plans and
programs ("Continued Benefits"), provided, that such Continued Benefits
shall terminate on the date or dates Executive receives substantially
equivalent coverage and benefits, without waiting period or pre-existing
condition limitations, under the plans and programs of a subsequent
employer (such coverage and benefits to be determined on a
coverage-by-coverage, or benefit-by-benefit, basis); and
(iii) the Company shall reimburse Executive pursuant
to Section 5(c) for reasonable expenses incurred, but not paid prior to
such termination of employment;
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(iv) Executive shall be entitled to any other rights,
compensation and/or benefits as may be due to Executive in accordance
with the terms and provisions of any agreements, plans or programs of
the Company;
(v) all stock options and other pension or
employment benefits granted to Executive more than one year prior to the
Date of Termination shall fully vest as of the Date of Termination
(inclusive of any granted to Executive prior to the Employment Period);
(vi) the Company shall forgive and cancel all loans
made by the Company or any Affiliate to Executive during the Employment
Period, if any, and shall take all actions and execute all documents
necessary to evidence the forgiveness and cancellation of such loans;
and
(vii) the Company shall eliminate any and all
restrictions on Executive's ability either to engage in any activities,
directly or indirectly, in competition with the Company (including,
without limitation, the restrictions set forth in Section 10(c) of this
Agreement but not the restrictions set forth in Sections 10(a) and (b)),
or to make any investment in competition with the Company, and shall
execute all documents necessary or reasonably requested by Executive to
reflect such elimination of restrictions.
The foregoing notwithstanding, the total of the severance payments
payable under this Section 8(a) shall be reduced to the extent the payment of
such amounts would cause Executive's total termination benefits (as determined
by Executive's tax advisor) to constitute an "excess" parachute payment under
Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") and
by reason of such excess parachute payment Executive would be subject to an
excise tax under Section 4999(a) of the Code, but only if Executive determines
that the after-tax value of the termination benefits calculated with the
foregoing restriction exceed those calculated without the foregoing restriction.
(b) Cause or By Executive Without Good Reason. If
Executive's employment is terminated by the Company for Cause or by Executive
(other than for Good Reason):
(i) the Company shall pay Executive his Base Salary
and, to the extent required by law or the Company's vacation policy, his
accrued vacation pay through the Date of Termination, as soon as
practicable following the Date of Termination; and
(ii) the Company shall reimburse Executive pursuant
to Section 5(c) for reasonable expenses incurred, but not paid prior to
such termination of employment, unless such termination resulted from a
misappropriation of Company funds; and
(iii) Executive shall be entitled to any other rights,
compensation and/or benefits as may be due to Executive in accordance
with the terms and provisions of any agreements, plans or programs of
the Company.
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(c) Disability. During any period that Executive fails to
perform his duties hereunder as a result of incapacity due to physical or mental
illness ("Disability Period"), Executive shall continue to receive his full Base
Salary set forth in Section 5(a) until his employment is terminated pursuant to
Section 6(b). In the event Executive's employment is terminated for Disability
pursuant to Section 6(b):
(i) the Company shall pay to Executive (A) his Base
Salary and accrued vacation pay through the Date of Termination, as soon
as practicable following the Date of Termination, and (B) continued Base
Salary (as provided for in Section 5(a)) and Continued Benefits for the
longer of (i) six (6) months or (ii) the date on which Executive becomes
entitled to long-term disability benefits under the applicable plan or
program of the Company paying the benefits described in Section 5(h), up
to a maximum of three (3) years of Base Salary continuation; and
(ii) the Company shall reimburse Executive pursuant
to Section 5(c) for reasonable expenses incurred, but not paid prior to
such termination of employment; and
(iii) Executive shall be entitled to any other rights,
compensation and/or benefits as may be due to Executive in accordance
with the terms and provisions of any agreements, plans or programs of
the Company.
(d) Death. If Executive's employment is terminated by his
death:
(i) the Company shall pay in a lump sum to
Executive's beneficiary, legal representatives or estate, as the case
may be, Executive's Base Salary through the Date of Termination and one
(1) times Executive's annual rate of Base Salary, and shall provide
Executive's spouse and dependents with Continued Benefits for one (1)
year;
(ii) the Company shall reimburse Executive's
beneficiary, legal representatives, or estate, as the case may be,
pursuant to Section 5(c) for reasonable expenses incurred, but not paid
prior to such termination of employment; and
(iii) Executive's beneficiary, legal representatives
or estate, as the case may be, shall be entitled to any other rights,
compensation and benefits as may be due to any such persons or estate in
accordance with the terms and provisions of any agreements, plans or
programs of the Company.
(e) Failure to Extend. A failure to extend the Agreement
pursuant to Section 2 by either party shall not be treated as a termination of
Executive's employment for purposes of this Agreement.
9. Mitigation. Executive shall not be required to mitigate amounts
payable under this Agreement by seeking other employment or otherwise, and there
shall be no offset against amounts due Executive under this Agreement on account
of subsequent employment.
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Additionally, amounts owed to Executive under this Agreement shall not be offset
by any claims the Company may have against Executive, and the Company's
obligation to make the payments provided for in this Agreement and otherwise to
perform its obligations hereunder shall not be affected by any other
circumstances, including, without limitation, any counterclaim, recoupment,
defense or other right which the Company may have against Executive or others.
10. Confidential Information, Ownership of Documents;
Non-Competition.
(a) Confidential Information. Executive shall hold in a
fiduciary capacity for the benefit of the Company all trade secrets and
confidential information, knowledge or data relating to the Company and its
businesses and investments, which shall have been obtained by Executive during
Executive's employment by the Company and which is not generally available
public knowledge (other than by acts by Executive in violation of this
Agreement). Except as may be required or appropriate in connection with his
carrying out his duties under this Agreement, Executive shall not, without the
prior written consent of the Company or as may otherwise be required by law or
any legal process, or as is necessary in connection with any adversarial
proceeding against the Company (in which case Executive shall use his reasonable
best efforts in cooperating with the Company in obtaining a protective order
against disclosure by a court of competent jurisdiction), communicate or divulge
any such trade secrets, information, knowledge or data to anyone other than the
Company and those designated by the Company or on behalf of the Company in the
furtherance of its business or to perform duties hereunder.
(b) Removal of Documents; Rights to Products. All records,
files, drawings, documents, models, equipment, and the like relating to the
Company's business, which Executive has control over shall not be removed from
the Company's premises without its written consent, unless such removal is in
the furtherance of the Company's business or is in connection with Executive's
carrying out his duties under this Agreement and, if so removed, shall be
returned to the Company promptly after termination of Executive's employment
hereunder, or otherwise promptly after removal if such removal occurs following
termination of employment. Executive shall assign to the Company all rights to
trade secrets and other products relating to the Company's business developed by
him alone or in conjunction with others at any time while employed by the
Company.
(c) Protection of Business. During the Employment Period and
until the first anniversary of Executive's Date of Termination (but only in the
event Executive is terminated by the Company for Cause or Executive terminates
employment without Good Reason), the Executive will not (i) engage, anywhere
within the geographical areas in which the Company or any of its Affiliates (the
"Designated Entities") are conducting their business operations or providing
services as of the Date of Termination, in any business which is being engaged
in by the Designated Entities as of the Date of Termination or pursue or attempt
to develop any project known to Executive and which the Designated Entities are
pursuing, developing or attempting to develop as of the Date of Termination,
unless such project has been inactive for over nine (9) months (a "Project"),
directly or indirectly, alone, in association with or as a shareholder,
principal, agent, partner, officer, director, employee or consultant of any
other organization, (ii)
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divert to any entity which is engaged in any business conducted by the
Designated Entities in the same geographic area as the Designated Entities, any
Project or any customer of any of the Designated Entities, or (iii) solicit any
officer, employee (other than secretarial staff) or consultant of any of the
Designated Entities to leave the employ of any of the Designated Entities.
Notwithstanding the preceding sentence, Executive shall not be prohibited from
owning less than three (3%) percent of any publicly traded corporation, whether
or not such corporation is in competition with the Company, and Executive shall
not be prohibited from owning equity securities of, and acting as an officer and
director of, Legacy. If, at any time, the provisions of this Section 10(c) shall
be determined to be invalid or unenforceable, by reason of being vague or
unreasonable as to area, duration or scope of activity, this Section 10(c) shall
be considered divisible and shall become and be immediately amended to only such
area, duration and scope of activity as shall be determined to be reasonable and
enforceable by the court or other body having jurisdiction over the matter; and
Executive agrees that this Section 10(c) as so amended shall be valid and
binding as though any invalid or unenforceable provision had not been included
herein.
(d) Injunctive Relief. In the event of a breach or
threatened breach of this Section 10, Executive agrees that the Company shall be
entitled to injunctive relief in a court of appropriate jurisdiction to remedy
any such breach or threatened breach, Executive acknowledging that damages would
be inadequate and insufficient.
(e) Continuing Operation. Except as specifically provided in
this Section 10, the termination of Executive's employment or of this Agreement
shall have no effect on the continuing operation of this Section 10.
11. Indemnification.
(a) General. The Company agrees that if Executive is made a
party or a threatened to be made a party to any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a "Proceeding"), by
reason of the fact that Executive is or was a trustee, director or officer of
the Company or any subsidiary of the Company or is or was serving at the request
of the Company or any subsidiary as a trustee, director, officer, member,
employee or agent of another corporation or a partnership, joint venture, trust
or other enterprise, including, without limitation, service with respect to
employee benefit plans, whether or not the basis of such Proceeding is alleged
action in an official capacity as a trustee, director, officer, member, employee
or agent while serving as a trustee, director, officer, member, employee or
agent, Executive shall be indemnified and held harmless by the Company to the
fullest extent authorized by Maryland law, as the same exists or may hereafter
be amended, against all Expenses incurred or suffered by Executive in connection
therewith, and such indemnification shall continue as to Executive even if
Executive has ceased to be an officer, director, trustee or agent, or is no
longer employed by the Company and shall inure to the benefit of his heirs,
executors and administrators.
(b) Expenses. As used in this Agreement, the term "Expenses"
shall include, without limitation, damages, losses, judgments, liabilities,
fines, penalties, excise taxes,
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settlements, and costs, attorneys' fees, accountants' fees, and disbursements
and costs of attachment or similar bonds, investigations, and any expenses of
establishing a right to indemnification under this Agreement.
(c) Enforcement. If a claim or request under this Agreement
is not paid by the Company or on its behalf, within thirty (30) days after a
written claim or request has been received by the Company, Executive may at any
time thereafter bring suit against the Company to recover the unpaid amount of
the claim or request and if successful in whole or in part, Executive shall be
entitled to be paid also the expenses of prosecuting such suit. All obligations
for indemnification hereunder shall be subject to, and paid in accordance with,
applicable Maryland law.
(d) Partial Indemnification. If Executive is entitled under
any provision of this Agreement to indemnification by the Company for some or a
portion of any Expenses, but not, however, for the total amount thereof, the
Company, shall nevertheless indemnify Executive for the portion of such Expenses
to which Executive is entitled.
(e) Advances of Expenses. Expenses incurred by Executive in
connection with any Proceeding shall be paid by the Company in advance upon
request of Executive that the Company pay such Expenses; but, only in the event
that Executive shall have delivered in writing to the Company (i) an undertaking
to reimburse the Company for Expenses with respect to which Executive is not
entitled to indemnification and (ii) an affirmation of his good faith belief
that the standard of conduct necessary for indemnification by the Company has
been met.
(f) Notice of Claim. Executive shall give to the Company
notice of any claim made against him for which indemnification will or could be
sought under this Agreement. In addition, Executive shall give the Company such
information and cooperation as it may reasonably require and as shall be within
Executive's power and at such times and places as are convenient for Executive.
(g) Defense of Claim. With respect to any Proceeding as to
which Executive notifies the Company of the commencement thereof:
(i) The Company will be entitled to participate
therein at its own expense; and
(ii) Except as otherwise provided below, to the
extent that it may wish, the Company will be entitled to assume the
defense thereof, with counsel reasonably satisfactory to Executive,
which in the Company's sole discretion may be regular counsel to the
Company and may be counsel to other officers and directors of the
Company or any subsidiary. Executive also shall have the right to employ
his own counsel in such action, suit or proceeding if he reasonably
concludes that failure to do so would involve a conflict of interest
between the Company and Executive, and under such circumstances the fees
and expenses of such counsel shall be at the expense of the Company.
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(iii) The Company shall not be liable to indemnify
Executive under this Agreement for any amounts paid in settlement of any
action or claim effected without its written consent. The Company shall
not settle any action or claim in any manner which would impose any
penalty or limitation on Executive without Executive's written consent.
Neither the Company nor Executive will unreasonably withhold or delay
their consent to any proposed settlement.
(h) Non-exclusivity. The right to indemnification and the
payment of expenses incurred in defending a Proceeding in advance of its final
disposition conferred in this Section 11 shall not be exclusive of any other
right which Executive may have or hereafter may acquire under any statute,
provision of the declaration of trust or certificate of incorporation or by-laws
of the Company or any subsidiary, agreement, vote of shareholders or
disinterested directors or trustees or otherwise.
12. Legal Fees and Expenses. If any contest or dispute shall arise
between the Company and Executive regarding any provision of this Agreement, the
Company shall reimburse Executive for all legal fees and expenses reasonably
incurred by Executive in connection with such contest or dispute, but only if
Executive is successful in respect of substantially all of Executive's claims
brought and pursued in connection with such contest or dispute. Such
reimbursement shall be made as soon as practicable following the final
resolution of such contest or dispute to the extent the Company receives
reasonable written evidence of such fees and expenses.
13. Successors; Binding Agreement.
(a) Company's Successors. No rights or obligations of the
Company under this Agreement may be assigned or transferred except that the
Company will require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
and/or assets of the Company to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place. As used in this
Agreement, "Company" shall mean the Company as herein before defined and any
successor to its business and/or assets (by merger, purchase or otherwise) which
executes and delivers the agreement provided for in this Section 13 or which
otherwise becomes bound by all the terms and provisions of this Agreement by
operation of law.
(b) Executive's Successors. No rights or obligations of
Executive under this Agreement may be assigned or transferred by Executive other
than his rights to payments or benefits hereunder, which may be transferred only
by will or the laws of descent and distribution. Upon Executive's death, this
Agreement and all rights of Executive hereunder shall inure to the benefit of
and be enforceable by Executive's beneficiary or beneficiaries, personal or
legal representatives, or estate, to the extent any such person succeeds to
Executive's interests under this Agreement. Executive shall be entitled to
select and change a beneficiary or beneficiaries to receive any benefit or
compensation payable hereunder following Executive's death by giving the Company
written notice thereof. In the event of Executive's death or a judicial
determination of
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his incompetence, reference in this Agreement to Executive shall be deemed,
where appropriate, to refer to his beneficiary(ies), estate or other legal
representative(s). If Executive should die following his Date of Termination
while any amounts would still be payable to him hereunder if he had continued to
live, all such amounts unless otherwise provided herein shall be paid in
accordance with the terms of this Agreement to such person or persons so
appointed in writing by Executive, or otherwise to his legal representatives or
estate.
14. Notice. All notices or other communications which are required
or permitted hereunder shall be in writing and sufficient if delivered
personally, or sent by nationally-recognized, overnight courier or by registered
or certified mail, return receipt requested and postage prepaid, addressed as
follows:
If to Executive:
Richard B. Muir
c/o New Plan Excel Realty Trust, Inc.
16955 Via Del Campo
San Diego, CA 92127
If to the Company:
New Plan Excel Realty Trust, Inc.
1120 Ave of the Americas
New York, NY 10036
Attn: CEO
or to such other address as any party may have furnished to the others in
writing in accordance herewith. All such notices and other communications shall
be deemed to have been received (a) in the case of personal delivery, on the
date of such delivery, (b) in the case of a telecopy, when the party receiving
such telecopy shall have confirmed receipt of the communication, (c) in the case
of delivery by nationally-recognized, overnight courier, on the business day
following dispatch and (d) in the case of mailing, on the third business day
following such mailing.
15. Miscellaneous. No provisions of this Agreement may be amended,
modified, or waived unless such amendment or modification is agreed to in
writing signed by Executive and by a duly authorized officer of the Company, and
such waiver is set forth in writing and signed by the party to be charged. No
waiver by either party hereto at any time of any breach by the other party
hereto of any condition or provision of this Agreement to be performed by such
other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not set forth
expressly in this Agreement. The respective rights and obligations of the
parties hereunder of this Agreement shall survive Executive's termination of
employment and the termination of this Agreement to the extent necessary for the
intended preservation of such rights and obligations. The validity,
interpretation, construction and performance of this Agreement
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shall be governed by the laws of the State of California without regard to its
conflicts of law principles.
16. Validity. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
17. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
18. Entire Agreement. This Agreement sets forth the entire agreement
of the parties hereto in respect of the subject matter contained herein and
supersede all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officer, employee or representative of any party hereto in respect of such
subject matter. Any prior agreement of the parties hereto in respect of the
subject matter contained herein is hereby terminated and canceled.
19. Shareholder Approval. The Company represents and warrants to
Executive that no shareholder approval is required for the Company to enter into
this Agreement and provide the benefits hereunder and to enter into the
agreements described in Section 5.
20. Withholding. All payments hereunder shall be subject to any
required withholding of Federal, state and local taxes pursuant to any
applicable law or regulation.
21. Noncontravention. The Company represents that the Company is not
prevented from entering into, or performing this Agreement by the terms of any
law, order, rule or regulation, its by-laws or certificate of incorporation, or
any agreement to which it is a party, other than which would not have a material
adverse effect on the Company's ability to enter into or perform this Agreement.
22. Section Headings. The section headings in this Employment
Agreement are for convenience of reference only, and they form no part of this
Agreement and shall not affect its interpretation.
23. Resignation and Termination. As of the Effective Time (i)
Executive shall resign as Executive Vice President and Secretary of the Company
and (ii) Executive's current employment agreement with the Company dated April
1, 1993 shall be deemed terminated without any termination or other severance
benefits or payments being owed to him; provided, however, that for purposes of
vesting any existing stock options, 401(k) or other employee benefits, his
employment shall not be deemed terminated and his employment after the relevant
grant date (whether before or after the Effective Time) shall be counted.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.
EXCEL REALTY TRUST, INC.,
a Maryland corporation
By: /s/ Gary B. Sabin
----------------------------------------------------
Name: Gary B. Sabin
Title: President
/s/ Richard B. Muir
----------------------------------------------------
Richard B. Muir
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EXHIBIT 10.45
EMPLOYMENT AGREEMENT
AGREEMENT, dated as of September 25, 1998, by and between Excel Realty
Trust, Inc., a Maryland corporation (the "Company"), and Steven F. Siegel
("Executive").
RECITALS
A. Executive is currently General Counsel and Secretary of New Plan
Realty Trust, a Massachusetts business trust ("New Plan").
B. The Company, a wholly owned subsidiary of the Company ("Sub"),
and New Plan have entered into an Agreement and Plan of Merger (as amended, the
"Merger Agreement"), pursuant to which Sub shall merge with and into New Plan
with New Plan surviving as a wholly-owned subsidiary of the Company (the
"Merger").
C. The Company desires to employ Executive, effective as of the
time the Merger is consummated (the "Effective Time"), on the terms and
conditions set forth in this Agreement, and Executive desires to be so employed.
AGREEMENT
IN CONSIDERATION of the premises and the mutual covenants set forth
below, the parties hereby agree as follows:
1. Employment. The Company hereby agrees to employ Executive as a
Senior Vice President and General Counsel, and Executive hereby accepts such
employment, on the terms and conditions hereinafter set forth. Notwithstanding
the employment of Executive by the Company, the Company shall be entitled to pay
Executive from the payroll of New Plan.
2. Term. The period of employment of Executive by the Company
hereunder (the "Employment Period") shall commence on the Effective Time of the
Merger (the "Commencement Date") and shall continue through December 31, 2001;
provided, that, commencing on January 1, 2002, and on each anniversary date
thereafter, the Employment Period shall automatically be extended for one (1)
additional year unless either party gives written notice not to extend this
Agreement prior to six (6) months before such automatic extension would be
effectuated. The Employment Period may be sooner terminated by either party in
accordance with Section 6 of this Agreement. Employment hereunder and entering
into this Agreement shall not be deemed to constitute termination of employment
of Executive with New Plan and shall not trigger any obligations or result in
the loss of any benefits resulting from an employment termination. Therefore,
without limiting the generality of the foregoing, any promissory note(s) of
Executive payable to New Plan shall not be accelerated as a result of this
Agreement or any action taken in accordance with the terms hereof.
3. Position and Duties. During the Employment Period, Executive
shall serve as a Senior Vice President and General Counsel of the Company.
Executive shall have those powers
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and duties normally associated with the positions of a Senior Vice President and
General Counsel and such other powers and duties as may be prescribed by the
Board of Directors of the Company (the "Board"). Executive shall devote such
time, attention and energies to Company affairs as are necessary to fully
perform his duties (other than absences due to illness or vacation) for the
Company. Notwithstanding the above, Executive shall be permitted, to the extent
such activities do not materially and adversely affect the ability of Executive
to fully perform his duties and responsibilities hereunder, to (i) manage
Executive's personal, financial and legal affairs, and (ii) serve on civic or
charitable boards or committees.
4. Place of Performance. The principal place of employment of
Executive shall be at the Company's corporate offices in New York, New York.
5. Compensation and Related Matters.
(a) Salary. During the Employment Period, the Company shall
pay Executive an annual base salary of $180,000 ("Base Salary"). Executive's
Base Salary shall be paid in approximately equal installments in accordance with
the Company's customary payroll practices. If Executive's Base Salary is
increased by the Company, such increased Base Salary shall then constitute the
Base Salary for all purposes of this Agreement.
(b) Bonus. The Board's compensation committee (the
"Compensation Committee") shall review Executive's performance at least annually
during each year of the Employment Period and cause the Company to award
Executive a cash bonus of up to 50% of his Base Salary which the Compensation
Committee shall reasonably determine as fairly compensating and rewarding
Executive for services rendered to the Company and/or as an incentive for
continued service to the Company, but in no event shall Executive's aggregate
bonus and Base Salary for the first full calendar year after the Effective Time
be less than the aggregate of Executive's New Plan salary immediately prior to
the Effective Time and Executive's 1997 New Plan bonus. The amount of
Executive's cash bonus shall be determined in the reasonable discretion of the
Compensation Committee and shall be dependent upon, among other things, the
achievement of certain performance levels by the Company, including, without
limitation, growth in funds from operations, and Executive's performance and
contribution to increasing the funds from operations.
(c) Expenses. The Company shall promptly reimburse Executive
for all reasonable business expenses upon the presentation of reasonably
itemized statements of such expenses in accordance with the Company's policies
and procedures now in force or as such policies and procedures may be modified
with respect to all senior executive officers of the Company.
(d) Vacation. Executive shall be entitled to the number of
weeks of vacation per year provided to the Company's senior executive officers,
but in no event less than four (4) weeks annually.
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(e) Welfare, Pension and Incentive Benefit Plans. During the
Employment Period, Executive (and his spouse and dependents to the extent
provided therein) shall be entitled to participate in and be covered under all
the welfare benefit plans or programs maintained by the Company from time to
time for the benefit of its senior executives including, without limitation, all
medical, hospitalization, dental, accidental death and dismemberment and travel
accident insurance plans and programs. In addition, Executive shall be entitled
to receive the most extensive disability coverage provided by the Company to any
other senior executive officer of the Company. In addition, during the
Employment Period, Executive shall be eligible to participate in all pension,
retirement, savings and other employee benefit plans and programs maintained
from time to time by the Company for the benefit of its senior executives, or
any annual incentive or long-term performance plans. With respect to each such
employee benefit plan, program, policy or arrangement, service with New Plan or
any of its subsidiaries (as applicable) shall be included for purposes of
determining eligibility to participate (including waiting periods, and without
being subject to any entry date requirement after the waiting period has been
satisfied), vesting (as applicable) and entitlement to benefits. The medical
plan or plans maintained by the Company after the Effective Time shall waive all
limitations as to pre-existing conditions, exclusions and waiting periods with
respect to participation and coverage requirements. With respect to vacation
benefits provided by the Company, the vacation benefit of Executive shall
include all hours of accrued but unused vacation and sick time hours,
respectively, with New Plan or its affiliates.
(f) During the Employment Period, the Company shall provide
Executive with the use of an automobile (including the payment of vehicle
insurance) substantially comparable to the automobile currently provided to
Executive by New Plan; however, at the Company's option, Company may in lieu
thereof provide Executive with an automobile allowance in an amount sufficient
for Executive to have the use of (and pay vehicle insurance on, if not so
provided by the Company) a vehicle substantially comparable to the automobile
currently provided to Executive by New Plan.
6. Termination. Executive's employment hereunder may be terminated
during the Employment Period under the following circumstances:
(a) Death. Executive's employment hereunder shall terminate
upon his death.
(b) Disability. If, as a result of Executive's incapacity
due to physical or mental illness, Executive shall have been substantially
unable to perform his duties hereunder for an entire period of six (6)
consecutive months, and within thirty (30) days after written Notice of
Termination (as defined in Section 7(a)) is given after such six (6) month
period, Executive shall not have returned to the substantial performance of his
duties on a full-time basis, the Company shall have the right to terminate
Executive's employment hereunder for "Disability", and such termination in and
of itself shall not be, nor shall it be deemed to be, a breach of this
Agreement.
(c) Cause. The Company shall have the right to terminate
Executive's employment for Cause, and such termination in and of itself shall
not be, nor shall it be deemed
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to be, a breach of this Agreement. For purposes of this Agreement, the Company
shall have "Cause" to terminate Executive's employment upon Executive's:
(i) conviction of, or plea of guilty or nolo
contendere to, a felony; or
(ii) willful and continued failure to use reasonable
best efforts to substantially perform his duties hereunder (other than
such failure resulting from Executive's incapacity due to physical or
mental illness or subsequent to the issuance of a Notice of Termination
by Executive for Good Reason (as defined in Section 6(d)) after demand
for substantial performance is delivered by the Company in writing that
specifically identifies the manner in which the Company believes
Executive has not used reasonable best efforts to substantially perform
his duties; or
(iii) willful misconduct (including, but not limited
to, a willful breach of the provisions of Section 10) that is materially
economically injurious to the Company or to any entity in control of,
controlled by or under common control with the Company ("Affiliate").
For purposes of this Section 6(c), no act, or failure to act, by
Executive shall be considered "willful" unless committed in bad faith and
without a reasonable belief that the act or omission was in the best interests
of the Company or any Affiliates thereof; provided, however, that the willful
requirement outlined in paragraphs (ii) or (iii) above shall be deemed to have
occurred if the Executive's action or non-action continues for more than ten
(10) days after Executive has received written notice of the inappropriate
action or non-action. Cause shall not exist under paragraph (ii) or (iii) above
unless and until the Company has delivered to Executive a copy of a resolution
duly adopted by a majority of the Board (excluding Executive for purposes of
determining such majority) at a meeting of the Board called and held for such
purpose (after reasonable (but in no event less than thirty (30) days) notice to
Executive and an opportunity for Executive, together with his counsel, to be
heard before the Board), finding that in the good faith opinion of the Board,
Executive was guilty of the conduct set forth in paragraph (ii) or (iii) and
specifying the particulars thereof in detail. This Section 6(c) shall not
prevent Executive from challenging in any court of competent jurisdiction the
Board's determination that Cause exists or that Executive has failed to cure any
act (or failure to act) that purportedly formed the basis for the Board's
determination.
(d) Good Reason. Executive may terminate his employment for
"Good Reason" within thirty (30) days after Executive has actual knowledge of
the occurrence, without the written consent of Executive, of one of the
following events that has not been cured within thirty (30) days after written
notice thereof has been given by Executive to the Company; provided, however,
that with respect to Section 6(d) the Company shall have the right to challenge
in any court of competent jurisdiction the Executive's determination that he has
the right to terminate his employment for "Good Reason.":
(i) the termination of the Employment Agreement
between Arnold Laubich, the Chief Executive Officer of the Company as of
the Effective Time, and the
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Company dated as of May 14, 1998, pursuant to Section 6(d) thereof by
Laubich or by the Company without Cause;
(ii) the assignment to Executive of duties materially
and adversely inconsistent with Executive's status as a Senior Vice
President and General Counsel of the Company or a material and adverse
alteration in the nature of Executive's duties and/or responsibilities,
reporting obligations, titles or authority;
(iii) a reduction by the Company in Executive's Base
Salary or a failure by the Company to pay any such amounts when due;
(iv) the relocation of the Company's executive
offices or Executive's own office location to a location that is more
than fifty (50) miles from New York, New York;
(v) any purported termination of Executive's
employment for Cause which is not effected pursuant to the procedures of
Section 6(c) (and for purposes of this Agreement, no such purported
termination shall be effective);
(vi) the Company's failure to substantially provide
any material employee benefits due to be provided to Executive;
(vii) the Company's failure to provide in all material
respects the indemnification set forth in Section 11 of this Agreement;
(viii) a Change in Control (as defined below) of the
Company; or.
(ix) Failure of the Company to provide, by giving
appropriate written notice to Executive, for two automatic one (1) year
renewals following the replacement of Arnold Laubich as Chief Executive
Officer of the Company.
Executive's right to terminate his employment hereunder for Good Reason
shall not be affected by his incapacity due to physical or mental illness.
Executive's continued employment during the thirty (30) day period referred to
above in this paragraph (d) shall not constitute consent to, or a waiver of
rights with respect to, any act or failure to act constituting Good Reason
hereunder.
For purposes of this Agreement, a "Change in Control" of the Company
means the occurrence of one of the following events:
(1) individuals who, on the Commencement Date,
constitute the Board (the "Incumbent Directors") cease for any reason to
constitute at least a majority of the Board, provided that any person
becoming a director subsequent to the Commencement Date whose election
or nomination for election was approved by a vote of a majority of the
Incumbent Directors then on the Board (either by a specific vote or by
approval of the
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proxy statement of the Company in which such person is named as a
nominee for director, without objection to such nomination) shall be an
Incumbent Director; provided, however, that no individual initially
elected or nominated as a director of the Company as a result of an
actual or threatened election contest with respect to directors or as a
result of any other actual or threatened solicitation of proxies by or
on behalf of any person other than the Board shall be an Incumbent
Director;
(2) any "person" (as such term is defined in Section
3(a)(9) of the Securities Exchange Act of 1934 (the "Exchange Act") and
as used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act) is or
becomes, after the Commencement Date, a "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 30% or more of the combined
voting power of the Company's then outstanding securities eligible to
vote for the election of the Board (the "Company Voting Securities");
provided, however, that an event described in this paragraph (2) shall
not be deemed to be a Change in Control if any of following becomes such
a beneficial owner: (A) the Company or any majority-owned subsidiary
(provided, that this exclusion applies solely to the ownership levels of
the Company or the majority-owned subsidiary), (B) any tax-qualified,
broad-based employee benefit plan sponsored or maintained by the Company
or any majority-owned subsidiary, (C) any underwriter temporarily
holding securities pursuant to an offering of such securities, (D) any
person pursuant to a Non-Qualifying Transaction (as defined in paragraph
(3)), or (E) Executive or any group of persons including Executive (or
any entity controlled by Executive or any group of persons including
Executive);
(3) the consummation of a merger, consolidation,
share exchange or similar form of transaction involving the Company or
any of its subsidiaries, or the sale of all or substantially all of the
Company's assets (a "Business Transaction"), unless immediately
following such Business Transaction (i) more than 50% of the total
voting power of the entity resulting from such Business Transaction or
the entity acquiring the Company's assets in such Business Transaction
(the "Surviving Corporation") is beneficially owned, directly or
indirectly, by the Company's shareholders immediately prior to any such
Business Transaction, and (ii) no person (other than the persons set
forth in clauses (A), (B), or (C) of paragraph (2) above or any
tax-qualified, broad-based employee benefit plan of the Surviving
Corporation or its Affiliates) beneficially owns, directly or
indirectly, 30% or more of the total voting power of the Surviving
Corporation (a "Non-Qualifying Transaction"); or
(4) Board approval of a liquidation or dissolution
of the Company, unless the voting common equity interests of an ongoing
entity (other than a liquidating trust) are beneficially owned, directly
or indirectly, by the Company's shareholders in substantially the same
proportions as such shareholders owned the Company's outstanding voting
common equity interests immediately prior to such liquidation and such
ongoing entity assumes all existing obligations of the Company to
Executive under this Agreement and the Stock Option Agreements pursuant
to which the Stock Options were granted.
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(e) Without Good Reason. Executive shall have the right to
terminate his employment hereunder without Good Reason by providing the Company
with a Notice of Termination, and such termination shall not in and of itself
be, nor shall it be deemed to be, a breach of this Agreement.
7. Termination Procedure.
(a) Notice of Termination. Any termination of Executive's
employment by the Company or by Executive during the Employment Period (other
than termination pursuant to Section 6(a)) shall be communicated by written
Notice of Termination to the other party hereto in accordance with Section 14.
For purposes of this Agreement, a "Notice of Termination" shall mean a notice
which shall indicate the specific termination provision in this Agreement relied
upon and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of Executive's employment under the
provision so indicated.
(b) Date of Termination. "Date of Termination" shall mean
(i) if Executive's employment is terminated by his death, the date of his death,
(ii) if Executive's employment is terminated pursuant to Section 6(b), thirty
(30) days after Notice of Termination (provided that Executive shall not have
returned to the substantial performance of his duties on a full-time basis
during such thirty (30) day period), and (iii) if Executive's employment is
terminated for any other reason, the date on which a Notice of Termination is
given or any later date (within thirty (30) days after the giving of such
notice) set forth in such Notice of Termination.
8. Compensation Upon Termination or During Disability. In the event
Executive is disabled or his employment terminates during the Employment Period,
the Company shall provide Executive with the payments and benefits set forth
below. Executive acknowledges and agrees that the payments set forth in this
Section 8 constitute liquidated damages for termination of his employment during
the Employment Period.
(a) Termination By Company Without Cause or By Executive for
Good Reason. If Executive's employment is terminated by the Company without
Cause or by Executive for Good Reason:
(i) the Company shall pay to Executive (A) his Base
Salary and accrued vacation pay through the Date of Termination, as soon
as practicable following the Date of Termination, and (B) a payment
equal to two times Executive's average total compensation (Base Salary
plus bonus) for the two (2) preceding fiscal years of the Company ending
prior to termination as soon as practicable following the Date of
Termination (for this purpose Executive's compensation earned with New
Plan shall be used to the extent necessary); provided, however, if the
Executive has previously given a notice not to extend the Employment
Period pursuant to Section 2, the payment referred to in this subsection
(i) shall not be made;
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(ii) the Company shall maintain in full force and
effect, for the continued benefit of Executive, his spouse and his
dependents for a period of three (3) years following the Date of
Termination the medical, hospitalization, dental, and life insurance
programs in which Executive, his spouse and his dependents were
participating immediately prior to the Date of Termination at the level
in effect and upon substantially the same terms and conditions
(including without limitation contributions required by Executive for
such benefits) as existed immediately prior to the Date of Termination;
provided, that if Executive, his spouse or his dependents cannot
continue to participate in the Company programs providing such benefits,
the Company shall arrange to provide Executive, his spouse and his
dependents with the economic equivalent of such benefits which they
otherwise would have been entitled to receive under such plans and
programs ("Continued Benefits"), provided, that such Continued Benefits
shall terminate on the date or dates Executive receives substantially
equivalent coverage and benefits, without waiting period or pre-existing
condition limitations, under the plans and programs of a subsequent
employer (such coverage and benefits to be determined on a
coverage-by-coverage, or benefit-by-benefit, basis); and
(iii) the Company shall reimburse Executive pursuant
to Section 5(c) for reasonable expenses incurred, but not paid prior to
such termination of employment;
(iv) Executive shall be entitled to any other rights,
compensation and/or benefits as may be due to Executive in accordance
with the terms and provisions of any agreements, plans or programs of
the Company;
(v) all stock options and other pension or
employment benefits granted to Executive more than one year prior to the
Date of Termination shall fully vest as of the Date of Termination
(inclusive of any granted to Executive by New Plan prior to the
Effective Time);
(vi) the Company shall forgive and cancel all loans
made by the Company or any Affiliate to Executive during the Employment
Period, if any, and shall take all actions and execute all documents
necessary to evidence the forgiveness and cancellation of such loans;
and
(vii) the Company shall eliminate any and all
restrictions on Executive's ability either to engage in any activities,
directly or indirectly, in competition with the Company (including,
without limitation, the restrictions set forth in Section 10(c) of this
Agreement but not the restrictions set forth in Sections 10(a) and (b)),
or to make any investment in competition with the Company, and shall
execute all documents necessary or reasonably requested by Executive to
reflect such elimination of restrictions.
The foregoing notwithstanding, the total of the severance
payments payable under this Section 8(a) shall be reduced to the extent the
payment of such amounts would cause Executive's total termination benefits (as
determined by Executive's tax advisor) to constitute an
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"excess" parachute payment under Section 280G of the Internal Revenue Code of
1986, as amended (the "Code") and by reason of such excess parachute payment
Executive would be subject to an excise tax under Section 4999(a) of the Code,
but only if Executive determines that the after-tax value of the termination
benefits calculated with the foregoing restriction exceed those calculated
without the foregoing restriction.
(b) Cause or By Executive Without Good Reason. If
Executive's employment is terminated by the Company for Cause or by Executive
(other than for Good Reason):
(i) the Company shall pay Executive his Base Salary
and, to the extent required by law or the Company's vacation policy, his
accrued vacation pay through the Date of Termination, as soon as
practicable following the Date of Termination; and
(ii) the Company shall reimburse Executive pursuant
to Section 5(c) for reasonable expenses incurred, but not paid prior to
such termination of employment, unless such termination resulted from a
misappropriation of Company funds; and
(iii) Executive shall be entitled to any other rights,
compensation and/or benefits as may be due to Executive in accordance
with the terms and provisions of any agreements, plans or programs of
the Company.
(c) Disability. During any period that Executive fails to
perform his duties hereunder as a result of incapacity due to physical or mental
illness ("Disability Period"), Executive shall continue to receive his full Base
Salary set forth in Section 5(a) until his employment is terminated pursuant to
Section 6(b). In the event Executive's employment is terminated for Disability
pursuant to Section 6(b):
(i) the Company shall pay to Executive (A) his Base
Salary and accrued vacation pay through the Date of Termination, as soon
as practicable following the Date of Termination, and (B) continued Base
Salary (as provided for in Section 5(a)) and Continued Benefits for the
longer of (i) six (6) months or (ii) the date on which Executive becomes
entitled to long-term disability benefits under the applicable plan or
program of the Company paying the benefits described in Section 5(h), up
to a maximum of three (3) years of Base Salary continuation; and
(ii) the Company shall reimburse Executive pursuant
to Section 5(c) for reasonable expenses incurred, but not paid prior to
such termination of employment; and
(iii) Executive shall be entitled to any other rights,
compensation and/or benefits as may be due to Executive in accordance
with the terms and provisions of any agreements, plans or programs of
the Company.
(d) Death. If Executive's employment is terminated by his
death:
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(i) the Company shall pay in a lump sum to
Executive's beneficiary, legal representatives or estate, as the case
may be, Executive's Base Salary through the Date of Termination and one
(1) times Executive's annual rate of Base Salary, and shall provide
Executive's spouse and dependents with Continued Benefits for one (1)
year;
(ii) the Company shall reimburse Executive's
beneficiary, legal representatives, or estate, as the case may be,
pursuant to Section 5(c) for reasonable expenses incurred, but not paid
prior to such termination of employment; and
(iii) Executive's beneficiary, legal representatives
or estate, as the case may be, shall be entitled to any other rights,
compensation and benefits as may be due to any such persons or estate in
accordance with the terms and provisions of any agreements, plans or
programs of the Company.
(e) Failure to Extend. Subject to Section 6(d)(ix), a
failure to extend the Agreement pursuant to Section 2 by either party shall not
be treated as a termination of Executive's employment for purposes of this
Agreement.
9. Mitigation. Executive shall not be required to mitigate amounts
payable under this Agreement by seeking other employment or otherwise, and there
shall be no offset against amounts due Executive under this Agreement on account
of subsequent employment. Additionally, amounts owed to Executive under this
Agreement shall not be offset by any claims the Company may have against
Executive, and the Company's obligation to make the payments provided for in
this Agreement and otherwise to perform its obligations hereunder shall not be
affected by any other circumstances, including, without limitation, any
counterclaim, recoupment, defense or other right which the Company may have
against Executive or others.
10. Confidential Information, Ownership of Documents;
Non-Competition.
(a) Confidential Information. Executive shall hold in a
fiduciary capacity for the benefit of the Company all trade secrets and
confidential information, knowledge or data relating to the Company and its
businesses and investments, which shall have been obtained by Executive during
Executive's employment by the Company and which is not generally available
public knowledge (other than by acts by Executive in violation of this
Agreement). Except as may be required or appropriate in connection with his
carrying out his duties under this Agreement, Executive shall not, without the
prior written consent of the Company or as may otherwise be required by law or
any legal process, or as is necessary in connection with any adversarial
proceeding against the Company (in which case Executive shall use his reasonable
best efforts in cooperating with the Company in obtaining a protective order
against disclosure by a court of competent jurisdiction), communicate or divulge
any such trade secrets, information, knowledge or data to anyone other than the
Company and those designated by the Company or on behalf of the Company in the
furtherance of its business or to perform duties hereunder.
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(b) Removal of Documents; Rights to Products. All records,
files, drawings, documents, models, equipment, and the like relating to the
Company's business, which Executive has control over shall not be removed from
the Company's premises without its written consent, unless such removal is in
the furtherance of the Company's business or is in connection with Executive's
carrying out his duties under this Agreement and, if so removed, shall be
returned to the Company promptly after termination of Executive's employment
hereunder, or otherwise promptly after removal if such removal occurs following
termination of employment. Executive shall assign to the Company all rights to
trade secrets and other products relating to the Company's business developed by
him alone or in conjunction with others at any time while employed by the
Company.
(c) Protection of Business. During the Employment Period and
until the first anniversary of Executive's Date of Termination (but only in the
event Executive is terminated by the Company for Cause or Executive terminates
employment without Good Reason), the Executive will not (i) engage, anywhere
within the geographical areas in which the Company or any of its Affiliates (the
"Designated Entities") are conducting their business operations or providing
services as of the Date of Termination, in any business which is being engaged
in by the Designated Entities as of the Date of Termination or pursue or attempt
to develop any project known to Executive and which the Designated Entities are
pursuing, developing or attempting to develop as of the Date of Termination,
unless such project has been inactive for over nine (9) months (a "Project"),
directly or indirectly, alone, in association with or as a shareholder,
principal, agent, partner, officer, director, employee or consultant of any
other organization, (ii) divert to any entity which is engaged in any business
conducted by the Designated Entities in the same geographic area as the
Designated Entities, any Project or any customer of any of the Designated
Entities, or (iii) solicit any officer, employee (other than secretarial staff)
or consultant of any of the Designated Entities to leave the employ of any of
the Designated Entities. Notwithstanding the preceding sentence, Executive shall
not be prohibited from owning less than three (3%) percent of any publicly
traded corporation, whether or not such corporation is in competition with the
Company, and Executive shall not be prohibited from owning equity securities of,
and acting as an officer and director of, Legacy. If, at any time, the
provisions of this Section 10(c) shall be determined to be invalid or
unenforceable, by reason of being vague or unreasonable as to area, duration or
scope of activity, this Section 10(c) shall be considered divisible and shall
become and be immediately amended to only such area, duration and scope of
activity as shall be determined to be reasonable and enforceable by the court or
other body having jurisdiction over the matter; and Executive agrees that this
Section 10(c) as so amended shall be valid and binding as though any invalid or
unenforceable provision had not been included herein.
(d) Injunctive Relief. In the event of a breach or
threatened breach of this Section 10, Executive agrees that the Company shall be
entitled to injunctive relief in a court of appropriate jurisdiction to remedy
any such breach or threatened breach, Executive acknowledging that damages would
be inadequate and insufficient.
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(e) Continuing Operation. Except as specifically provided in
this Section 10, the termination of Executive's employment or of this Agreement
shall have no effect on the continuing operation of this Section 10.
11. Indemnification.
(a) General. The Company agrees that if Executive is made a
party or a threatened to be made a party to any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a "Proceeding"), by
reason of the fact that Executive is or was a trustee, director or officer of
the Company or any subsidiary of the Company or is or was serving at the request
of the Company or any subsidiary as a trustee, director, officer, member,
employee or agent of another corporation or a partnership, joint venture, trust
or other enterprise, including, without limitation, service with respect to
employee benefit plans, whether or not the basis of such Proceeding is alleged
action in an official capacity as a trustee, director, officer, member, employee
or agent while serving as a trustee, director, officer, member, employee or
agent, Executive shall be indemnified and held harmless by the Company to the
fullest extent authorized by Maryland law, as the same exists or may hereafter
be amended, against all Expenses incurred or suffered by Executive in connection
therewith, and such indemnification shall continue as to Executive even if
Executive has ceased to be an officer, director, trustee or agent, or is no
longer employed by the Company and shall inure to the benefit of his heirs,
executors and administrators.
(b) Expenses. As used in this Agreement, the term "Expenses"
shall include, without limitation, damages, losses, judgments, liabilities,
fines, penalties, excise taxes, settlements, and costs, attorneys' fees,
accountants' fees, and disbursements and costs of attachment or similar bonds,
investigations, and any expenses of establishing a right to indemnification
under this Agreement.
(c) Enforcement. If a claim or request under this Agreement
is not paid by the Company or on its behalf, within thirty (30) days after a
written claim or request has been received by the Company, Executive may at any
time thereafter bring suit against the Company to recover the unpaid amount of
the claim or request and if successful in whole or in part, Executive shall be
entitled to be paid also the expenses of prosecuting such suit. All obligations
for indemnification hereunder shall be subject to, and paid in accordance with,
applicable Maryland law.
(d) Partial Indemnification. If Executive is entitled under
any provision of this Agreement to indemnification by the Company for some or a
portion of any Expenses, but not, however, for the total amount thereof, the
Company, shall nevertheless indemnify Executive for the portion of such Expenses
to which Executive is entitled.
(e) Advances of Expenses. Expenses incurred by Executive in
connection with any Proceeding shall be paid by the Company in advance upon
request of Executive that the Company pay such Expenses; but, only in the event
that Executive shall have delivered in writing to the Company (i) an undertaking
to reimburse the Company for Expenses with respect
12
<PAGE> 13
to which Executive is not entitled to indemnification and (ii) an affirmation of
his good faith belief that the standard of conduct necessary for indemnification
by the Company has been met.
(f) Notice of Claim. Executive shall give to the Company
notice of any claim made against him for which indemnification will or could be
sought under this Agreement. In addition, Executive shall give the Company such
information and cooperation as it may reasonably require and as shall be within
Executive's power and at such times and places as are convenient for Executive.
(g) Defense of Claim. With respect to any Proceeding as to
which Executive notifies the Company of the commencement thereof:
(i) The Company will be entitled to participate
therein at its own expense; and
(ii) Except as otherwise provided below, to the
extent that it may wish, the Company will be entitled to assume the
defense thereof, with counsel reasonably satisfactory to Executive,
which in the Company's sole discretion may be regular counsel to the
Company and may be counsel to other officers and directors of the
Company or any subsidiary. Executive also shall have the right to employ
his own counsel in such action, suit or proceeding if he reasonably
concludes that failure to do so would involve a conflict of interest
between the Company and Executive, and under such circumstances the fees
and expenses of such counsel shall be at the expense of the Company.
(iii) The Company shall not be liable to indemnify
Executive under this Agreement for any amounts paid in settlement of any
action or claim effected without its written consent. The Company shall
not settle any action or claim in any manner which would impose any
penalty or limitation on Executive without Executive's written consent.
Neither the Company nor Executive will unreasonably withhold or delay
their consent to any proposed settlement.
(h) Non-exclusivity. The right to indemnification and the
payment of expenses incurred in defending a Proceeding in advance of its final
disposition conferred in this Section 11 shall not be exclusive of any other
right which Executive may have or hereafter may acquire under any statute,
provision of the declaration of trust or certificate of incorporation or by-laws
of the Company or any subsidiary, agreement, vote of shareholders or
disinterested directors or trustees or otherwise.
12. Legal Fees and Expenses. If any contest or dispute shall arise
between the Company and Executive regarding any provision of this Agreement, the
Company shall reimburse Executive for all legal fees and expenses reasonably
incurred by Executive in connection with such contest or dispute, but only if
Executive is successful in respect of substantially all of Executive's claims
brought and pursued in connection with such contest or dispute. Such
reimbursement shall be made as soon as practicable following the final
resolution
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<PAGE> 14
of such contest or dispute to the extent the Company receives reasonable written
evidence of such fees and expenses.
13. Successors; Binding Agreement.
(a) Company's Successors. No rights or obligations of the
Company under this Agreement may be assigned or transferred except that the
Company will require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
and/or assets of the Company to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place. As used in this
Agreement, "Company" shall mean the Company as herein before defined and any
successor to its business and/or assets (by merger, purchase or otherwise) which
executes and delivers the agreement provided for in this Section 13 or which
otherwise becomes bound by all the terms and provisions of this Agreement by
operation of law.
(b) Executive's Successors. No rights or obligations of
Executive under this Agreement may be assigned or transferred by Executive other
than his rights to payments or benefits hereunder, which may be transferred only
by will or the laws of descent and distribution. Upon Executive's death, this
Agreement and all rights of Executive hereunder shall inure to the benefit of
and be enforceable by Executive's beneficiary or beneficiaries, personal or
legal representatives, or estate, to the extent any such person succeeds to
Executive's interests under this Agreement. Executive shall be entitled to
select and change a beneficiary or beneficiaries to receive any benefit or
compensation payable hereunder following Executive's death by giving the Company
written notice thereof. In the event of Executive's death or a judicial
determination of his incompetence, reference in this Agreement to Executive
shall be deemed, where appropriate, to refer to his beneficiary(ies), estate or
other legal representative(s). If Executive should die following his Date of
Termination while any amounts would still be payable to him hereunder if he had
continued to live, all such amounts unless otherwise provided herein shall be
paid in accordance with the terms of this Agreement to such person or persons so
appointed in writing by Executive, or otherwise to his legal representatives or
estate.
14. Notice. All notices or other communications which are required
or permitted hereunder shall be in writing and sufficient if delivered
personally, or sent by nationally-recognized, overnight courier or by registered
or certified mail, return receipt requested and postage prepaid, addressed as
follows:
If to Executive:
Steven F. Siegel
c/o New Plan Excel Realty Trust, Inc.
1120 Ave of the Americas
New York, NY 10036
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<PAGE> 15
If to the Company:
New Plan Excel Realty Trust, Inc.
1120 Ave of the Americas
New York, NY 10036
Attn: CEO
or to such other address as any party may have furnished to the others in
writing in accordance herewith. All such notices and other communications shall
be deemed to have been received (a) in the case of personal delivery, on the
date of such delivery, (b) in the case of a telecopy, when the party receiving
such telecopy shall have confirmed receipt of the communication, (c) in the case
of delivery by nationally-recognized, overnight courier, on the business day
following dispatch and (d) in the case of mailing, on the third business day
following such mailing.
15. Miscellaneous. No provisions of this Agreement may be amended,
modified, or waived unless such amendment or modification is agreed to in
writing signed by Executive and by a duly authorized officer of the Company, and
such waiver is set forth in writing and signed by the party to be charged. No
waiver by either party hereto at any time of any breach by the other party
hereto of any condition or provision of this Agreement to be performed by such
other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not set forth
expressly in this Agreement. The respective rights and obligations of the
parties hereunder of this Agreement shall survive Executive's termination of
employment and the termination of this Agreement to the extent necessary for the
intended preservation of such rights and obligations. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of New York without regard to its conflicts of law
principles.
16. Validity. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
17. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
18. Entire Agreement. This Agreement sets forth the entire agreement
of the parties hereto in respect of the subject matter contained herein and
supersede all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officer, employee or representative of any party hereto in respect of such
subject matter. Any prior agreement of the parties hereto in respect of the
subject matter contained herein is hereby terminated and canceled.
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<PAGE> 16
19. Shareholder Approval. The Company represents and warrants to
Executive that no shareholder approval is required for the Company to enter into
this Agreement and provide the benefits hereunder and to enter into the
agreements described in Section 5.
20. Withholding. All payments hereunder shall be subject to any
required withholding of Federal, state and local taxes pursuant to any
applicable law or regulation.
21. Noncontravention. The Company represents that the Company is not
prevented from entering into, or performing this Agreement by the terms of any
law, order, rule or regulation, its by-laws or certificate of incorporation, or
any agreement to which it is a party, other than which would not have a material
adverse effect on the Company's ability to enter into or perform this Agreement.
22. Section Headings. The section headings in this Employment
Agreement are for convenience of reference only, and they form no part of this
Agreement and shall not affect its interpretation.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.
EXCEL REALTY TRUST, INC.,
a Maryland corporation
By: /s/Richard B. Muir
---------------------------------------------------
Name: Richard B. Muir
Title: Executive Vice President
/s/ Steven F. Siegel
---------------------------------------------------
Steven F. Siegel
16
<PAGE> 1
EXHIBIT 10.49
UNCONDITIONAL GUARANTY OF PAYMENT AND PERFORMANCE
FOR AND IN CONSIDERATION OF the sum of Ten and No/100 Dollars ($10.00)
and other good and valuable consideration paid or delivered to the undersigned
NEW PLAN EXCEL REALTY TRUST, INC., a Maryland corporation, formerly known as
Excel Realty Trust, Inc. (hereinafter referred to as "Guarantor"), the receipt
and sufficiency whereof are hereby acknowledged by Guarantor, and for the
purpose of seeking to induce BANKBOSTON, N.A., a national banking association
(hereinafter referred to as "Lender", which term shall also include each other
Bank which may now or hereafter become party to the "Loan Agreement" (as
hereinafter defined) and shall also include BankBoston, N.A., as agent for all
of the Banks, and any other Bank that is hereafter acting as agent for all of
the Banks), to extend credit or otherwise provide financial accommodations to
BRIAR PRESTON RIDGE PARTNERS, L.P., a Texas limited partnership (hereinafter
referred to as "Borrower"), which extension of credit and provision of financial
accommodations will be to the direct interest, advantage and benefit of
Guarantor, Guarantor does hereby absolutely, unconditionally and irrevocably
guarantee to Lender:
(a) the full and prompt payment when due, whether by acceleration or
otherwise, either before or after maturity thereof, of that certain Amended and
Restated Note (hereinafter referred to as the "BKB Note"), dated December 30,
1998, made by Borrower to the order of BKB in the principal face amount of
SIXTY-EIGHT MILLION AND NO/100 DOLLARS ($68,000,000.00), together with interest
as provided in the BKB Note, together with any replacements, supplements,
renewals, modifications, consolidations, restatements and extensions thereof;
and
(b) the full and prompt payment when due, whether by acceleration or
otherwise, either before or after maturity thereof, of each other note as may be
issued under that certain First Amended and Restated Term Loan Agreement, dated
as of December 30, 1998 (hereinafter referred to as the "Loan Agreement") among
Borrower, BKB, for itself and as Agent, and the other Banks that may become a
party thereto, together with interest as provided in each such note, together
with any replacements, supplements, renewals, modifications, consolidations,
restatements and extensions thereof (the BKB Note and each of the notes
described in this subparagraph (b) is hereinafter referred to collectively as
the "Note"); and
(c) the full and prompt payment and performance of all obligations
of Borrower to Lender under the terms of the Loan Agreement, together with any
replacements, supplements, renewals, modifications, consolidations, restatements
and extensions thereof; and
(d) the full and prompt payment and performance of any and all
obligations of Borrower under the terms of the "Deed of Trust" (as defined in
the Loan Agreement) from Borrower relating to certain real property more
particularly described therein (such real property is hereinafter referred to as
the "Land"), together with any replacements, supplements, renewals,
modifications, consolidations, restatements and extensions thereof, including,
without limitation,
<PAGE> 2
the obligations of Borrower concerning hazardous materials contained in
paragraph 7 of the Deed of Trust; and
(e) the full and prompt payment and performance of any and all other
obligations of Borrower to Lender under any other agreements, documents or
instruments now or hereafter evidencing, securing or otherwise relating to the
indebtedness evidenced by the Note or the Loan Agreement (the Note, the Loan
Agreement, the Deed of Trust and said other agreements, documents and
instruments are hereinafter collectively referred to as the "Loan Documents" and
individually referred to as a "Loan Document").
All terms used herein and not otherwise defined herein shall have the
meanings set forth in the Loan Agreement. This Guaranty is executed and
delivered by Guarantor in amendment and restatement of that certain
Unconditional Guaranty of Payment and Performance dated as of December 30, 1997,
made by Excel Realty Trust, Inc. in favor of Lender, and in amendment and
restatement of that certain Unconditional Guaranty of Payment and Performance
dated as of December 30, 1998, made by New Plan Excel Realty Trust, Inc. in
favor of Lender.
1. Agreement to Pay and Perform; Costs of Collection. Guarantor
does hereby agree that if the Note is not paid by Borrower in accordance with
its terms, or if any and all sums which are now or may hereafter become due from
Borrower to Lender under the Loan Documents are not paid by Borrower in
accordance with their terms, or if any and all other obligations of Borrower to
Lender under the Note and the Loan Documents are not performed by Borrower in
accordance with their terms, Guarantor will immediately make such payments and
perform such obligations. Guarantor further agrees to pay Lender on demand all
reasonable costs and expenses (including court costs and reasonable attorneys'
fees and disbursements) paid or incurred by Lender in endeavoring to collect the
indebtedness guaranteed hereby, to enforce any of the other obligations of
Borrower guaranteed hereby, or any portion thereof, or to enforce this Guaranty,
and until paid to Lender, such sums shall bear interest at the default rate of
interest provided in the Loan Agreement unless collection from Guarantor of
interest at such rate would be contrary to applicable law, in which event such
sums shall bear interest at the highest rate which may be collected from
Guarantor under applicable law.
2. Reinstatement of Refunded Payments. If, for any reason, any
payment to Lender of any of the obligations guaranteed hereunder is required to
be refunded by Lender to Borrower, or paid or turned over to any other person,
including, without limitation, by reason of the operation of bankruptcy,
reorganization, receivership or insolvency laws or similar laws of general
application relating to creditors' rights and remedies now or hereafter enacted,
Guarantor agrees to pay the amount so required to be refunded, paid or turned
over (the "Turnover Payment"), and the obligations of Guarantor shall not be
treated as having been discharged by the original payment to Lender giving rise
to the Turnover Payment, and this Guaranty shall be treated as having remained
in full force and effect for any such Turnover Payment so made by Lender, as
well as for any amounts not theretofore paid to Lender on account of such
obligations.
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<PAGE> 3
3. Rights of Lender to Deal with Collateral, Borrower and Other
Persons. Guarantor hereby consents and agrees that Lender may at any time, and
from time to time, without thereby releasing Guarantor from any liability
hereunder and without notice to or further consent from Guarantor, either with
or without consideration: release or surrender any lien or other security of any
kind or nature whatsoever held by it or by any person, firm or corporation on
its behalf or for its account, securing any indebtedness or liability hereby
guaranteed; substitute for any collateral so held by it, other collateral of
like kind, or of any kind; modify the terms of the Note or the Loan Documents;
extend or renew the Note for any period; grant releases, compromises and
indulgences with respect to the Note or the Loan Documents and to any persons or
entities now or hereafter liable thereunder or hereunder; release any other
Guarantor, surety, endorser or accommodation party of the Note, the Security
Deed or any other Loan Documents; or take or fail to take any action of any type
whatsoever. No such action which Lender shall take or fail to take in connection
with the Note or the Loan Documents, or any of them, or any security for the
payment of the indebtedness of Borrower to Lender or for the performance of any
obligations or undertakings of Borrower, nor any course of dealing with Borrower
or any other person, shall release Guarantor's obligations hereunder, affect
this Guaranty in any way or afford Guarantor any recourse against Lender. The
provisions of this Guaranty shall extend and be applicable to all replacements,
supplements, renewals, amendments, extensions, consolidations, restatements and
modifications of the Note and the Loan Documents, and any and all references
herein to the Note and the Loan Documents shall be deemed to include any such
replacements, supplements, renewals, extensions, amendments, consolidations,
restatements or modifications thereof.
4. No Contest with Lender; Subordination. So long as any obligation
hereby guaranteed remains unpaid or undischarged, Guarantor will not, by paying
any sum recoverable hereunder (whether or not demanded by Lender) or by any
means or on any other ground, claim any set-off or counterclaim against Borrower
in respect of any liability of Guarantor to Borrower or, in proceedings under
federal bankruptcy law or insolvency proceedings of any nature, prove in
competition with Lender in respect of any payment hereunder or be entitled to
have the benefit of any counterclaim or proof of claim or dividend or payment by
or on behalf of Borrower or the benefit of any other security for any obligation
hereby guaranteed which, now or hereafter, Lender may hold or in which it may
have any share. So long as any obligation hereby guaranteed remains unpaid or
undischarged, Guarantor hereby expressly waives any right of contribution from
or indemnity against Borrower, whether at law or in equity, arising from any
payments made by Guarantor pursuant to the terms of this Guaranty, and Guarantor
acknowledges that Guarantor has no right whatsoever to proceed against Borrower
for reimbursement of any such payments. In connection with the foregoing,
Guarantor expressly waives any and all rights of subrogation to Lender against
Borrower, and Guarantor hereby waives any rights to enforce any remedy which
Lender may have against Borrower and any rights to participate in any collateral
for Borrower's obligations under the Loan Documents. Guarantor hereby
subordinates any and all indebtedness of Borrower now or hereafter owed to
Guarantor to all indebtedness of Borrower to Lender, and agrees with Lender that
(a) Guarantor shall not demand or accept any payment from Borrower on account of
such indebtedness, unless such payment is approved by Lender in the exercise of
its sole discretion, (b) Guarantor shall not claim any offset or other reduction
of
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<PAGE> 4
Guarantor's obligations hereunder because of any such indebtedness, and (c)
Guarantor shall not take any action to obtain any interest in any of the
security described in and encumbered by the Loan Documents because of any such
indebtedness; provided, however, that, if Lender so requests, such indebtedness
shall be collected, enforced and received by Guarantor as trustee for Lender and
be paid over to Lender on account of the indebtedness of Borrower to Lender, but
without reducing or affecting in any manner the liability of Guarantor under the
other provisions of this Guaranty except to the extent the principal amount of
such outstanding indebtedness shall have been reduced by such payment.
5. Waiver of Defenses. Guarantor hereby agrees that its obligations
hereunder shall not be affected or impaired by, and hereby waives and agrees not
to assert or take advantage of any defense based on:
(a) any statute of limitations in any action hereunder or
for the collection of the Note or for the payment or performance of any
obligation hereby guaranteed;
(b) the incapacity, lack of authority, death or disability
of Borrower or any other person or entity, or the failure of Lender to file or
enforce a claim against the estate (either in administration, bankruptcy or in
any other proceeding) of Borrower or Guarantor or any other person or entity;
(c) the dissolution or termination of existence of Borrower
or Guarantor;
(d) the voluntary or involuntary liquidation, sale or other
disposition of all or substantially all of the assets of Borrower;
(e) the voluntary or involuntary receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization, assignment,
composition, or readjustment of, or any similar proceeding affecting, Borrower
or Guarantor, or any of Borrower's or Guarantor's properties or assets;
(f) the damage, destruction, condemnation, foreclosure or
surrender of all or any part of the Land or any improvements now or hereafter
located on the Land (the "Improvements");
(g) any change in the plans and specifications relating to
the construction of the Improvements;
(h) any modification of the terms of any contract relating
to the construction of the Improvements or the furnishing of any labor,
equipment, supplies or materials therefor;
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<PAGE> 5
(i) the failure of Lender to give notice of the existence,
creation or incurring of any new or additional indebtedness or obligation or of
any action or nonaction on the part of any other person whomsoever in connection
with any obligation hereby guaranteed;
(j) any failure or delay of Lender to commence an action
against Borrower or any other Person, to assert or enforce any remedies against
Borrower under the Note or the Loan Documents, or to realize upon any security;
(k) any failure of any duty on the part of Lender to
disclose to Guarantor any facts it may now or hereafter know regarding Borrower,
the Land or any of the Improvements, whether such facts materially increase the
risk to Guarantor or not;
(l) failure to accept or give notice of acceptance of this
Guaranty by Lender;
(m) failure to make or give notice of presentment and demand
for payment of any of the indebtedness or performance of any of the obligations
hereby guaranteed;
(n) failure to make or give protest and notice of dishonor
or of default to Guarantor or to any other party with respect to the
indebtedness or performance of obligations hereby guaranteed;
(o) any and all other notices whatsoever to which Guarantor
might otherwise be entitled;
(p) any lack of diligence by Lender in collection,
protection or realization upon any collateral securing the payment of the
indebtedness or performance of obligations hereby guaranteed;
(q) the invalidity or unenforceability of the Note or any of
the Loan Documents;
(r) the compromise, settlement, release or termination of
any or all of the obligations of Borrower under the Note or the Loan Documents;
(s) any transfer by Borrower or any other Person of all or
any part of the security encumbered by the Loan Documents;
(t) any exculpation or limitation of liability contained in
the Note or in the Loan Documents;
(u) the failure of Lender to perfect any security or to
extend or renew the perfection of any security;
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<PAGE> 6
(v) the failure of Guarantor to receive payment of any fees
or other sums at any time payable by Borrower or any other person in connection
with the execution and delivery by Guarantor of the Guaranty or in connection
with the ownership, development or operation of the Land or any Improvements; or
(w) to the fullest extent permitted by law, any other legal,
equitable or surety defenses whatsoever to which Guarantor might otherwise be
entitled, it being the intention that the obligations of Guarantor hereunder are
absolute, unconditional and irrevocable.
6. Guaranty of Payment and Performance and Not of Collection. This
is a Guaranty of payment and performance and not of collection. The liability of
Guarantor under this Guaranty shall be primary, direct and immediate and not
conditional or contingent upon the pursuit of any remedies against Borrower or
any other person, nor against securities or liens available to Lender, its
successors, successors in title, endorsees or assigns. Guarantor hereby waives
any right to require that an action be brought against Borrower or any other
person or to require that resort be had to any security or to any balance of any
deposit account or credit on the books of Lender in favor of Borrower or any
other person.
7. Rights and Remedies of Lender. In the event of a default under
the Note or the Loan Documents, or any of them, Lender shall have the right to
enforce its rights, powers and remedies thereunder or hereunder or under any
other agreement, document or instrument now or hereafter evidencing, securing or
otherwise relating to the indebtedness evidenced by the Note or secured by the
Loan Documents, in any order, and all rights, powers and remedies available to
Lender in such event shall be nonexclusive and cumulative of all other rights,
powers and remedies provided thereunder or hereunder or by law or in equity.
Accordingly, Guarantor hereby authorizes and empowers Lender upon the occurrence
of any event of default under the Note or the Loan Documents, at its sole
discretion, and without notice to Guarantor, to exercise any right or remedy
which Lender may have, including, but not limited to, judicial foreclosure,
exercise of rights of power of sale, acceptance of a deed or assignment in lieu
of foreclosure, appointment of a receiver to collect rents and profits, exercise
of remedies against personal property, or enforcement of any assignment of
leases, as to any security, whether real, personal or intangible. At any public
or private sale of any security or collateral for any indebtedness or any part
thereof guaranteed hereby, whether by foreclosure or otherwise, Lender may, in
its discretion, purchase all or any part of such security or collateral so sold
or offered for sale for its own account and may apply against the amount bid
therefor all or any part of the balance due it pursuant to the terms of the Note
or Security Deed or any other Loan Document without prejudice to Lender's
remedies hereunder against Guarantor for deficiencies. If the indebtedness
guaranteed hereby is partially paid by reason of the election of Lender to
pursue any of the remedies available to Lender, or if such indebtedness is
otherwise partially paid, this Guaranty shall nevertheless remain in full force
and effect, and Guarantor shall remain liable for the entire balance of the
indebtedness guaranteed hereby even though any rights which Guarantor may have
against Borrower may be destroyed or diminished by the exercise of any such
remedy.
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<PAGE> 7
8. Application of Payments. Guarantor hereby authorizes Lender,
without notice to Guarantor, to apply all payments and credits received from
Borrower or from Guarantor or realized from any security in such manner and in
such priority as Lender in its sole judgment shall see fit to the indebtedness,
obligation and undertakings which are the subject of this Guaranty.
9. Business Failure, Bankruptcy or Insolvency. In the event of the
business failure of Guarantor or if there shall be pending any bankruptcy or
insolvency case or proceeding with respect to Guarantor under federal bankruptcy
law or any other applicable law or in connection with the insolvency of
Guarantor, or if a liquidator, receiver, or trustee shall have been appointed
for Guarantor or Guarantor's properties or assets, Lender may file such proofs
of claim and other papers or documents as may be necessary or advisable in order
to have the claims of Lender allowed in any proceedings relative to Guarantor,
or any of Guarantor's properties or assets, and, irrespective of whether the
indebtedness or other obligations of Borrower guaranteed hereby shall then be
due and payable, by declaration or otherwise, Lender shall be entitled and
empowered to file and prove a claim for the whole amount of any sums or sums
owing with respect to the indebtedness or other obligations of Borrower
guaranteed hereby, and to collect and receive any moneys or other property
payable or deliverable on any such claim. Guarantor covenants and agrees that
upon the commencement of a voluntary or involuntary bankruptcy proceeding by or
against Borrower, Guarantor shall not seek a supplemental stay or otherwise
pursuant to 11 U.S.C. Section 105 or any other provision of the Bankruptcy
Reform Act of 1978, as amended, or any other debtor relief law (whether
statutory, common law, case law, or otherwise) of any jurisdiction whatsoever,
now or hereafter in effect, which may be or become applicable, to stay,
interdict, condition, reduce or inhibit the ability of Lender to enforce any
rights of Lender against Guarantor by virtue of this Guaranty or otherwise.
10. Financial Statements and Other Information. Guarantor hereby
represents and warrants to Lender that all financial statements of Guarantor and
its subsidiaries heretofore delivered by Guarantor to Lender are true and
correct in all material respects, have been prepared in accordance with
generally accepted accounting principles consistently applied, and fairly
present the financial condition of Guarantor as at the close of business on the
date thereof and the results of operations for the period then ended; that no
material adverse change has occurred in the assets, liabilities, financial
condition or business of Guarantor as shown or reflected therein since the date
thereof; and that Guarantor and its subsidiaries have no liabilities or known
contingent liabilities which are not reflected in such financial statements or
referred to in the notes thereto other than Guarantor's obligations under this
Guaranty. Guarantor hereby agrees that until all indebtedness guaranteed hereby
has been completely repaid and all obligations and undertakings of Borrower
under, by reason of, or pursuant to the Note and the Loan Documents have been
completely performed, Guarantor will deliver to Lender:
(a) as soon as practicable and in any event within 90 days
after the end of each fiscal year of Guarantor, the consolidated balance sheet
of Guarantor and its subsidiaries as of the end of such year (accompanied by
supplementary schedules indicating the total debt on
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<PAGE> 8
any assets shown on a net investment basis), and the related statement of
income, statement of changes in capital and statement of cash flows for such
year, each setting forth in comparative form the figures for the previous fiscal
year and all such statements to be in reasonable detail, prepared in accordance
with generally accepted accounting principles, and accompanied by an auditor's
report prepared without qualification by an accounting firm acceptable to
Lender, the Form 10-K filed with the federal Securities and Exchange Commission
("SEC") (unless the SEC has approved an extension, in which event the Guarantor
will deliver to each Lender a copy of the Form 10-K simultaneously with delivery
to the SEC), and any other information the Lender reasonably may need to
complete a financial analysis of Guarantor;
(b) as soon as practicable and in any event within 45 days
after the end of each of the fiscal quarters of Guarantor (including the fourth
fiscal quarter in each year), copies of Form 10-Q filed with the SEC (unless the
SEC has approved an extension in which event the Guarantor will deliver such
copies of the Form 10-Q to each Lender simultaneously with delivery to the SEC);
the unaudited consolidated balance sheet of Guarantor and its subsidiaries as of
the end of such quarter, and the related statement of income, statement of
changes in capital and statement of cash flows for the portion of Guarantor's
fiscal year then elapsed, and the compliance certificate required to be
delivered to the agent and the lenders pursuant to the Credit Agreement, all in
reasonable detail and prepared in accordance with generally accepted accounting
principles, together with a certification by the principal financial or
accounting officer of Guarantor that the information contained in such financial
statements fairly presents the financial position of Guarantor and its
subsidiaries on the date thereof (subject to year end adjustment);
(c) contemporaneously with the delivery of the financial
statements referred to in clause (a) above, a statement of all contingent
liabilities of Guarantor and its subsidiaries which are not reflected in such
financial statements or referred to in the notes thereto (including, without
limitation, all guarantees, endorsements and other contingent obligations in
respect of indebtedness of others, and obligations to reimburse the issuer in
respect of any letters of credit), all in reasonable detail and certified by the
principal financial or accounting officer of Guarantor;
(d) contemporaneously with the filing or mailing thereof,
copies of all material of a financial nature filed with the SEC or sent to the
stockholders of Guarantor;
(e) promptly after they are filed with the Internal Revenue
Service, copies of all annual federal income tax returns and amendments thereto
of Guarantor;
(f) promptly upon becoming aware thereof, written notice
from Guarantor of any event or condition which might have a material adverse
effect on the business, operations, assets, condition (financial or otherwise)
of Guarantor or any of its subsidiaries or the ability of Guarantor to perform
under this Guaranty (including but not limited to, litigation commenced against
Guarantor or any of its subsidiaries, judgments rendered against Guarantor or
any of its subsidiaries, liens filed against any property of Guarantor or any of
its subsidiaries, defaults
-8-
<PAGE> 9
claimed under indebtedness for borrowed money for which Guarantor or any of its
subsidiaries is primarily or secondarily liable, or bankruptcy, insolvency or
trustee or receivership proceedings commenced against Guarantor or any of its
subsidiaries), such notice to specify the nature and the period of existence of
such event or condition, the anticipated effect thereof, and what action
Guarantor is taking or proposes to take with respect thereto; and
(g) with reasonable promptness, such other information
respecting the business, operations, assets, liabilities and financial condition
of Guarantor and its subsidiaries as Lender may from time to time reasonably
request.
Upon two (2) Business Days' prior notice, Guarantor will permit any officer
designated by Lender, at Guarantor's expense, to visit and inspect any of the
properties of Guarantor or any of its subsidiaries, to examine the records and
books of account of Guarantor and its subsidiaries (and to make copies thereof
and extracts therefrom) and to discuss the affairs, finances and accounts of
Guarantor and its subsidiaries with, and to be advised as to the same by, its
officers, all at such reasonable times and intervals Lender may reasonably
request.
11. Covenants of Guarantor. Guarantor hereby covenants and agrees
with Lender that until all indebtedness guaranteed hereby has been completely
repaid and all obligations and undertakings of Borrower under, by reason of, or
pursuant to the Note and the Loan Documents have been completely performed:
(a) Guarantor will, and will cause each of its subsidiaries
to, do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate or legal existence, rights and franchises, to
effect and maintain its foreign qualifications, licensing, domestication or
authorization, except where a failure to be so qualified, licensed, domesticated
or authorized in such foreign jurisdictions would not have a materially adverse
effect on its business, assets or financial condition, and to comply with all
applicable laws and regulations (including, without limitation, environmental
laws);
(b) Guarantor will, and will cause each of its subsidiaries
to, continue to engage primarily in the business now conducted by it and them;
(c) Guarantor will, and will cause each of its subsidiaries
to, duly pay and discharge, before the same shall become in arrears, all taxes,
assessments and other governmental charges imposed upon it and its properties,
sales or activities, or upon the income or profits therefrom, as well as claims
for labor, material, or supplies which if unpaid might become a lien or charge
on any of its property; provided that any such tax, assessment, charge or claim
need not be paid if the validity or amount thereof shall currently be contested
in good faith by appropriate proceedings and if Guarantor or such subsidiary
shall have set aside on its books adequate reserves with respect thereto; and
provided further that Guarantor or such subsidiary shall pay all such taxes,
assessments, charges and claims forthwith upon the commencement of proceedings
to foreclose any lien that may have attached as security therefor;
-9-
<PAGE> 10
(d) Guarantor will, and will cause each of its subsidiaries
to, maintain and keep the properties used or deemed by it to be useful in its
business in first-class repair, working order and condition, and make or cause
to be made all necessary and proper repairs thereto and replacements thereof;
(e) Guarantor will, and will cause each of its subsidiaries
to, maintain with financially sound and reputable insurers, insurance with
respect to its properties and business against such casualties and contingencies
and in such types and amounts as shall be in accordance with sound business
practices for companies in similar business similarly situated;
(f) Guarantor will keep, and will cause each of its
subsidiaries to keep, complete, proper and accurate records and books of account
in which full, true and correct entries will be made in accordance with
generally accepted accounting principles consistent with the preparation of the
financial statements heretofore delivered to Lender and will maintain adequate
accounts and reserves for all taxes (including income taxes), all depreciation,
depletion, and amortization of its properties and the properties of its
subsidiaries, all other contingencies, and all other proper reserves;
(g) Guarantor will not, and will not permit any of its
subsidiaries to, become a party to any merger, consolidation or other business
combination, or agree to effect any asset acquisition other than the acquisition
of assets in the ordinary course of business consistent with past practices,
stock acquisition or other acquisition, except (A) the merger or consolidation
of one or more of the subsidiaries of Guarantor with and into Guarantor, or (B)
the merger or consolidation of two or more subsidiaries of Guarantor, or (C) the
merger of Guarantor with another entity provided that Guarantor is the surviving
entity;
(h) Guarantor will not, and will not permit any of its
subsidiaries to, become a party to or agree to or affect any disposition of
assets, other than the disposition of assets in the ordinary course of business
consistent with past practice;
(i) Guarantor will not make or permit to be made, by
voluntary or involuntary means, any transfer or encumbrance of its interest in
ERT Development Corporation, or any dilution of its interest in ERT Development
Corporation; provided, however, Guarantor may assign up to fifty percent (50%)
of the issued and outstanding shares of preferred stock in ERT Development
Corporation owned by Guarantor to the officers of Guarantor;
(j) Guarantor shall at all times comply with all requirements
of applicable laws and regulations necessary to maintain its status as a real
estate investment trust as defined in Section 856(a) of the Code and in
compliance with the terms and conditions of this Guaranty and the other Loan
Documents;
-10-
<PAGE> 11
(k) Guarantor shall at all times observe, perform and comply
with each and every term, covenant or agreement set forth in the Credit
Agreement within any applicable period of grace or notice and cure, and, in the
event that the Credit Agreement shall be terminated or no longer in full force
and effect, Guarantor shall continue to observe, perform and comply with the
terms, covenants and agreements therein as the same existed immediately prior to
such termination as if the same continued in full force and effect; and
(l) Guarantor will cooperate with Lender and execute such
further instruments and documents as Lender shall reasonably request to carry
out to their satisfaction the transactions contemplated by this Guaranty and the
other Loan Documents.
12. Security and Rights of Set-off. Guarantor hereby grants to
Lender, as security for the full and prompt payment and performance of
Guarantor's obligations hereunder, a continuing lien on and security interest in
any and all securities or other property belonging to Guarantor now or hereafter
held by Lender and in any and all deposits (general or specific, time or demand,
provisional or final, regardless of currency, maturity, or the branch of Lender
where the deposits are held) now or hereafter held by Lender and other sums
credited by or due from Lender to Guarantor or subject to withdrawal by
Guarantor; and regardless of the adequacy of any collateral or other means of
obtaining repayment of such obligations, during the continuance of any Event of
Default under the Note or the Loan Documents, Lender may at any time and without
notice to Guarantor set-off and apply the whole or any portion or portions of
any or all such deposits and other sums against amounts payable under this
Guaranty, whether or not any other person or persons could also withdraw money
therefrom. Any security now or hereafter held by or for Guarantor and provided
by Borrower, or by anyone on Borrower's behalf, in respect of liabilities of
Guarantor hereunder shall be held in trust for Lender as security for the
liabilities of Guarantor hereunder.
13. Changes in Writing; No Revocation. This Guaranty may not be
changed orally, and no obligation of Guarantor can be released or waived by
Lender except by a writing signed by a duly authorized officer of Lender. This
Guaranty shall be irrevocable by Guarantor until all indebtedness guaranteed
hereby has been completely repaid and all obligations and undertakings of
Borrower under, by reason of, or pursuant to the Note and the Loan Documents
have been completely performed.
14. Notices. All notices, demands or requests provided for or
permitted to be given pursuant to this Guaranty (hereinafter in this paragraph
referred to as "Notice") must be in writing and shall be deemed to have been
properly given or served by personal delivery or by sending same by overnight
courier or by depositing the same in the United States mail, postpaid and
registered or certified, return receipt requested, at the addresses set forth
below. Each Notice shall be effective upon being delivered personally or upon
being sent by overnight courier or upon being deposited in the United States
Mail as aforesaid. The time period in which a response to any such Notice must
be given or any action taken with respect thereto, however, shall commence to
run from the date of receipt if personally delivered or sent by overnight
-11-
<PAGE> 12
courier or, if so deposited in the United States Mail, the earlier of three (3)
Business Days following such deposit and the date of receipt as disclosed on the
return receipt. Rejection or other refusal to accept or the inability to deliver
because of changed address of which no Notice was given shall be deemed to be
receipt of the Notice sent. By giving at least thirty (30) days prior Notice
thereof, Guarantor or Lender shall have the right from time to time and at any
time during the term of this Guaranty to change their respective addresses and
each shall have the right to specify as its address any other address within the
United States of America. For the purposes of this Guaranty:
The address of Lender is:
BankBoston, N.A.
100 Federal Street
Boston, Massachusetts 02110
Attn: Real Estate Division
with a copy to:
BankBoston, N.A.
115 Perimeter Center Place, N.E.
Suite 500
Atlanta, Georgia 30346
Attn: Jeffrey L. Warwick
and a copy to each other Bank which may now or hereafter become a party to the
Loan Agreement at such address as may be designated by such Bank.
The address of Guarantor is:
New Plan Excel Realty Trust, Inc.
16955 Via Del Campo
Suite 110
San Diego, California 92127
Attn: Richard B. Muir
15. GOVERNING LAW. GUARANTOR AND LENDER ACKNOWLEDGE AND AGREE THAT
THIS GUARANTY AND THE OBLIGATIONS OF GUARANTOR HEREUNDER SHALL BE GOVERNED BY
AND INTERPRETED AND DETERMINED IN ACCORDANCE WITH THE LAWS OF THE OF
MASSACHUSETTS (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW).
-12-
<PAGE> 13
If, notwithstanding the provisions of Section 15 above, this Guaranty is
deemed to be governed by California law, then the following shall apply but
shall not in any way limit the generality of any other provisions contained in
this Guaranty.
Guarantor hereby waives (a) any defense of Guarantor based upon Lender's
election of any remedy against Guarantor or Borrower or both; (b) any defense
based upon Lender's failure to disclose to Guarantor any information concerning
Borrower's financial condition or any other circumstances bearing on Borrower's
ability to pay all sums payable under the Loan Documents; (c) any defense based
upon any statute or rule of law which provides that the obligation of a surety
must be neither larger in amount nor in any other respects more burdensome than
that of a principal; (d) any defense based upon Lender's election, in any
proceeding instituted under the Federal Bankruptcy Code, of the application of
Section 1111(b)(2) of the Federal Bankruptcy Code or any successor statute; (e)
any right of subrogation, any right to enforce any remedy which Lender may have
against Borrower and any right to participate in, or benefit from, any security
for any of the Loan Documents now or hereafter held by Lender; and (f) benefit
of any statute of limitations affecting the liability of the Guarantor hereunder
or the enforcement hereof. Without limiting the generality of the foregoing or
any other provision hereof, Guarantor expressly waives any and all benefits
which might otherwise be available to Guarantor under Sections 2787 to 2855,
inclusive, of the California Civil Code, including without limitation, Sections
2809, 2810, 2819, 2839, 2845, 2849 and 2850, and all benefits which might
otherwise be available to Guarantor under Sections 2899 and 3433 of the
California Civil Code and the California Code of Civil Procedure Sections 580a,
580b, 580d and 726, or any of such sections. Furthermore, without limitation of
any waiver otherwise set forth herein, Guarantor waives all rights and defenses
arising out of an election of remedies by the Lender even though that election
of remedies, such as a nonjudicial foreclosure with respect to the security for
a guaranteed obligation, has destroyed Guarantor's rights of subrogation and
reimbursement against the principal by operation of Section 580d of the
California Code of Civil Procedure or otherwise.
In addition, Guarantor waives all rights and defenses that Guarantor may
have because the Borrower's debt is secured by real property. This means, among
other things:
(A) Lender may collect from Guarantor without first foreclosing on any
real or personal property collateral pledged by Borrower; and
(B) If Lender forecloses on any real property collateral pledged by
Borrower:
(i) The amount of the debt may be reduced only by the price
for which that collateral is sold at the foreclosure sale, even if the
collateral is worth more than the sale price;
(ii) Lender may collect from Guarantor even if Lender, by
foreclosing on the real property collateral, has destroyed any right Guarantor
may have to collect from Borrower.
-13-
<PAGE> 14
This is an unconditional and irrevocable waiver of any rights and
defenses Guarantor may have because Borrower's debt is secured by real property.
These rights and defenses include, but are not limited to, any rights or
defenses based upon Section 580a, 580b, 580d or 726 of the California Code of
Civil Procedure.
16. CONSENT TO JURISDICTION; WAIVERS. GUARANTOR HEREBY IRREVOCABLY
AND UNCONDITIONALLY (A) SUBMITS TO PERSONAL JURISDICTION IN THE STATE OF
MASSACHUSETTS OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS GUARANTY, AND (B) WAIVES ANY AND ALL PERSONAL RIGHTS UNDER THE LAWS OF ANY
STATE (I) TO THE RIGHT, IF ANY, TO TRIAL BY JURY, (II) TO OBJECT TO JURISDICTION
WITHIN THE STATE OF MASSACHUSETTS OR VENUE IN ANY PARTICULAR FORUM WITHIN THE
STATE OF MASSACHUSETTS, AND (III) TO THE RIGHT, IF ANY, TO CLAIM OR RECOVER ANY
SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN
ACTUAL DAMAGES. EACH LENDER IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY AND ALL
RIGHTS UNDER THE LAWS OF ANY STATE TO THE RIGHT, IF ANY, TO TRIAL BY JURY.
GUARANTOR AGREES THAT, IN ADDITION TO ANY METHODS OF SERVICE OF PROCESS PROVIDED
FOR UNDER APPLICABLE LAW, ALL SERVICE OF PROCESS IN ANY SUCH SUIT, ACTION OR
PROCEEDING MAY BE MADE BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT
REQUESTED, DIRECTED TO GUARANTOR AT THE ADDRESS SET FORTH IN PARAGRAPH 14 ABOVE,
AND SERVICE SO MADE SHALL BE COMPLETE FIVE (5) DAYS AFTER THE SAME SHALL BE SO
MAILED. NOTHING CONTAINED HEREIN, HOWEVER, SHALL PREVENT LENDER FROM BRINGING
ANY SUIT, ACTION OR PROCEEDING OR EXERCISING ANY RIGHTS AGAINST ANY SECURITY AND
AGAINST GUARANTOR PERSONALLY, AND AGAINST ANY PROPERTY OF GUARANTOR, WITHIN ANY
OTHER STATE. INITIATING SUCH SUIT, ACTION OR PROCEEDING OR TAKING SUCH ACTION IN
ANY STATE SHALL IN NO EVENT CONSTITUTE A WAIVER OF THE AGREEMENT CONTAINED
HEREIN THAT THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS SHALL GOVERN THE
RIGHTS AND OBLIGATIONS OF GUARANTOR AND LENDER HEREUNDER OR OF THE SUBMISSION
HEREIN MADE BY GUARANTOR TO PERSONAL JURISDICTION WITHIN THE STATE OF
MASSACHUSETTS. GUARANTOR HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT
IS BROUGHT IN AN INCONVENIENT COURT. GUARANTOR CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH LENDER WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THEIR
FOREGOING WAIVERS AND ACKNOWLEDGES THAT LENDER HAS BEEN INDUCED TO ENTER INTO
THIS GUARANTY AND THE OTHER LOAN DOCUMENTS TO WHICH THEY ARE PARTIES BY, AMONG
OTHER THINGS, THE WAIVERS AND CERTIFICATIONS CONTAINED IN THIS PARAGRAPH 16.
-14-
<PAGE> 15
17. Successors and Assigns. The provisions of this Guaranty shall be
binding upon Guarantor and its heirs, successors, successors in title, legal
representatives, and assigns, and shall inure to the benefit of Lender, its
successors, successors in title, legal representatives and assigns.
18. Assignment by Lender. This Guaranty is assignable by Lender in
whole or in part in conjunction with any assignment of the Note or portions
thereof, and any assignment hereof or any transfer or assignment of the Note or
portions thereof by Lender shall operate to vest in any such assignee the rights
and powers, in whole or in part, as appropriate, herein conferred upon and
granted to Lender.
19. Severability. If any term or provision of this Guaranty shall be
determined to be illegal or unenforceable, all other terms and provisions hereof
shall nevertheless remain effective and shall be enforced to the fullest extent
permitted by law.
20. Disclosure. Guarantor agrees that in addition to disclosures
made in accordance with standard banking practices, any Lender may disclose
information obtained by such Lender pursuant to this Guaranty to assignees or
participants and potential assignees or participants hereunder.
21. NO UNWRITTEN AGREEMENTS. THIS GUARANTY REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
22. Time of the Essence. Time is of the essence with respect to each
and every covenant, agreement and obligation of Guarantor under this Guaranty.
23. Incorporation of Covenants. In the event that the loans
contemplated by the Credit Agreement shall be paid in full and the Credit
Agreement terminated, then Guarantor shall at all times thereafter observe,
perform and comply with each and every covenant set forth in the Credit
Agreement as of the date hereof (or as the same may be amended), as if such
covenants and any defined terms referred to therein were fully set forth in this
Guaranty and a part hereof, subject, however, to any applicable period of grace
or notice and cure with respect to a failure to comply with such covenants as
set forth in the Credit Agreement, if any.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the 13th
day of January, 1999.
NEW PLAN EXCEL REALTY
TRUST, INC., a Maryland
corporation, formerly known
as Excel Realty Trust, Inc.
-15-
<PAGE> 16
By: /s/ S. Eric Ottesen
------------------------------------
Name: S. Eric Ottesen
Title: Senior Vice President
[CORPORATE SEAL]
-16-
<PAGE> 1
EXHIBIT 12
RATIO OF EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDEND REQUIREMENTS
The following table sets forth the ratio of earnings to fixed charges
and preferred stock dividend requirements for the periods indicated:
<TABLE>
<CAPTION>
Five Months Ended
Years Ended July 31, December 31,
- --------------------------------------------------------------------------
1995 1996 1997 1998 1998
---- ---- ---- ---- ----
<S> <C> <C> <C> <C>
8.1 4.9 3.5 3.0 2.4
</TABLE>
For purposes of computing these ratios, earnings have been calculated by
adding fixed charges (excluding capitalized interest and preferred stock
dividends) to income before extraordinary items. Fixed charges consist of
interest costs, whether expensed or capitalized, preferred stock dividend
requirements, the interest component of rental expense, if any, and amortization
of debt discounts and issue costs, whether expensed or capitalized.
CALCULATION OF COMBINED RATIO OF EARNINGS TO FIXED CHARGES
AND PREFERRED STOCK DIVIDEND REQUIREMENTS
FIVE MONTHS ENDED DECEMBER 31, 1998
(DOLLAR AMOUNTS IN THOUSANDS)
EARNINGS:
<TABLE>
<S> <C>
Net income $ 55,805
Interest expense (including amortization of debt discount and issuing costs) 27,168
Other adjustments 477
--------
$ 83,450
========
FIXED CHARGES:
Interest expense (including amortization of debt discount and issuing costs) $ 27,168
Capitalized interest 159
Preferred stock dividends 6,914
Other adjustments 136
--------
$ 34,377
========
RATIO OF EARNINGS TO FIXED CHARGES 2.43
</TABLE>
<PAGE> 1
EXHIBIT 21
SUBSIDIARIES OF THE REGISTRANT
New Plan Realty Trust, a Massachusetts business trust
New Plan Securities Corp., a New York corporation
New Plan Realty of Alabama, Inc., an Alabama corporation
Avion Service Corp., a Pennsylvania corporation
New Plan Realty of Kingsport, Inc., a Tennessee corporation
New Plan Factory Malls, Inc., a Delaware corporation
New Plan of Tara, Inc., a Delaware corporation
New Plan of Fashion Corners, Inc., a Delaware corporation
New Plan Disbursing Corp., a Delaware corporation
New Plan Realty of Louisiana, Inc., a Delaware corporation
New Plan of Tennessee, Inc., a Delaware corporation
New Plan Realty of Louisiana, L.P., a Delaware limited partnership
New Plan of Waterford Place, L.P., a Delaware limited partnership
New Plan of Tennessee, L.P., a Delaware limited partnership
New Plan of New Garden, Inc., a Delaware corporation
New Plan of New Jersey, Inc., a Delaware corporation
New Plan of Tinton Falls, Inc., a Delaware corporation
New Plan of Eastgreen, Inc., a Delaware corporation
New Plan of Northgate, Inc., a Delaware corporation
New Plan of Polo Run, Inc., a Delaware corporation
NC Properties #1, Inc., a Delaware corporation
NC Properties #2, Inc., a Delaware corporation
Excel Realty Trust - NC, a North Carolina partnership
TX Properties #1, Inc., a Delaware corporation
TX Properties #2, Inc., a Delaware corporation
Excel Realty Trust - TX, L.P., a Texas limited partnership
Excel Realty - PA, Inc., a Delaware corporation
Excel Realty - NE, Inc., a Nebraska corporation
Excel Realty - ST, Inc., a Delaware corporation
Excel Westminster Marketplace, Inc., a Delaware corporation
Excel Realty Partners, L.P., a Delaware limited partnership
E.H. Properties, L.P., a Delaware limited partnership
<PAGE> 1
EXHIBIT 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
New Plan Excel Realty Trust, Inc. on Forms S-3 (File Nos. 333-67511, 333-64203,
and 333-24615) and Forms S-8 (File Nos. 333-023329, 333-13481, 333-65223,
333-65193 and 333-65221) of our report dated March 2, 1999, on our audits of
the consolidated financial statements and financial statement schedules of New
Plan Excel Realty Trust, Inc. as of December 31, 1998, July 31, 1998, and
July 31, 1997 and for the five months ended December 31, 1998 and for each of
the three years in the period ended July 31, 1998 which report is included in
this Annual Report on Form 10-K/A.
PricewaterhouseCoopers LLP
San Diego, California
April 6, 1999
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 5-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> AUG-01-1998
<PERIOD-END> DEC-31-1998
<CASH> 13,951,000
<SECURITIES> 1,700,000
<RECEIVABLES> 51,679,000
<ALLOWANCES> (11,636,000)
<INVENTORY> 0
<CURRENT-ASSETS> 0
<PP&E> 2,825,469,000
<DEPRECIATION> (158,021,000)
<TOTAL-ASSETS> 2,894,546,000
<CURRENT-LIABILITIES> 0
<BONDS> 1,077,920,000
0
913,000
<COMMON> 884,000
<OTHER-SE> 1,694,661,000
<TOTAL-LIABILITY-AND-EQUITY> 2,894,546,000
<SALES> 0
<TOTAL-REVENUES> 155,921,000
<CGS> 0
<TOTAL-COSTS> 99,693,000
<OTHER-EXPENSES> 457,000
<LOSS-PROVISION> 2,825,000
<INTEREST-EXPENSE> 27,168,000
<INCOME-PRETAX> 55,805,000
<INCOME-TAX> 0
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 55,805,000
<EPS-PRIMARY> 0.63
<EPS-DILUTED> 0.62
</TABLE>
