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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM 10-K
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT
OF 1934 [NO FEE REQUIRED EFFECTIVE OCTOBER 7, 1996]
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1999
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)
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MARYLAND 33-0160389
(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
1120 AVENUE OF THE AMERICAS (212) 869-3000
NEW YORK, NY 10036 (REGISTRANT'S TELEPHONE NUMBER)
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
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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 New York Stock Exchange
Stock
Series B Cumulative Redeemable Preferred New York Stock Exchange
Stock
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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. [X]
The aggregate market value of the Registrant's shares of common stock held
by non-affiliates was approximately $1,130,968,000 as of March 10, 2000, based
on the closing price of $13.375 on the NYSE on that date.
As of March 10, 2000, the number of shares of common stock of the
Registrant outstanding was 87,650,655.
Documents incorporated by reference: Portions of the Proxy Statement for
the 2000 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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PART I
Item 1. Business.................................................... 1
Item 2. Properties.................................................. 12
Item 3. Legal Proceedings........................................... 13
Item 4. Submission of Matters to a Vote of Security Holders......... 13
PART II
Item 5. Market for Registrant's Common Equity and Related
Stockholder Matters......................................... 13
Item 6. Selected Financial Data..................................... 14
Item 7. Management's Discussion and Analysis of Financial Condition
and Results of Operations................................... 15
Item 7A. Quantitative and Qualitative Disclosures About Market
Risk........................................................ 22
Item 8. Financial Statements and Supplementary Data................. 22
Item 9. Changes in and Disagreements with Accountants on Accounting
and Financial Disclosure.................................... 22
PART III
Item 10. Directors and Executive Officers of the Registrant.......... 23
Item 11. Executive Compensation...................................... 23
Item 12. Security Ownership of Certain Beneficial Owners and
Management.................................................. 23
Item 13. Certain Relationships and Related Transactions.............. 23
PART IV
Item 14. Exhibits, Financial Statement Schedules and Reports on Form
8-K......................................................... 23
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PART I
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; the level and volatility of interest rates;
financial stability of tenants; the impact of dramatic increases in electronic
commerce; 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 acquisitions
to close and pending developments to be completed on time and within budget); as
well as other risks identified 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.
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,
1999, the Company owned interests in 303 retail properties (including one retail
property under redevelopment, five office properties and two vacant land
parcels) containing over 37 million square feet of gross leasable area in 31
states. The Company also owned, as of that date, 53 apartment communities
(including three apartment communities under redevelopment) containing
approximately 12,600 units in 14 states.
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, 1999, the Company owned interests in 303 retail
properties (including one retail property under redevelopment, five office
properties and two vacant land parcels) containing over 37 million square feet
of gross leasable area in 31 states. The Company also owned, as of that date, 53
apartment communities (including three apartment communities under
redevelopment) containing approximately 12,600 units in 14 states. The average
occupancy rates as of December 31, 1999 for the retail properties (including
five office properties and excluding one retail property under redevelopment)
and the apartment
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communities (excluding the three apartment communities under redevelopment) were
92.3% and 90.8%, 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.
Strategy and Philosophy
The following is a brief discussion of the Company's current strategies and
policies concerning management, acquisitions, 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.
The Company's primary objective is to acquire, own and manage a portfolio
of commercial retail properties and apartment communities that will provide
increasing cash flow 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 and (iii) 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 expansions, 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. These renovations and refurbishments include interior
improvements such as carpet, counter tops, vanities, appliances and lighting.
Exterior improvements include driveways, landscaping, lighting, new signage,
roofs, windows and other exterior building improvements. The Company's
objectives regarding selection of those properties to be renovated or
refurbished is based upon a review of a number of variables. These variables
include strength of the market in which the property is located, current
occupancy at the property compared to occupancy within the local market, current
rentals, anticipated return on additional investments, and maintenance or
improvement of market share. The Company may contract for renovation and
refurbishment work with third parties and will manage the construction progress
in an attempt to minimize the disturbance to ongoing property operations. The
Company believes that these improvements will preserve and increase the value of
these properties over time.
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, as well as joint venture developments
and redevelopments 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 lease term, 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
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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 redeemable for cash or, in the sole discretion
of the general partner of the partnership, for shares of the Company's common
stock. 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 a wholly owned subsidiary of 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 makes a
subordinated loan to the developer. Upon completion of the project, the Company
may have 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 ("ERT").
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
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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 and (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.
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 $3 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 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.
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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
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. On July 15, 1999, the Company issued $175 million
aggregate principal amount of notes under its medium-term notes program in two
series. The Company issued $150 million with a 10-year maturity and a coupon of
7.4% and $25 million of another series with a 30-year maturity and a coupon of
7.5%. On September 10, 1999, following the internal merger transaction described
below, the Company re-established its medium-term notes program in the aggregate
principal amount of $325 million. On November 12, 1999, the Company issued $49
million aggregate principal amount of notes under its medium-term notes program
with a four-year maturity and a coupon of 7.33%.
Internal Merger Transaction
On August 5, 1999, the Company consummated an internal merger transaction
pursuant to which substantially all of the assets and liabilities of New Plan
Realty Trust, a wholly owned subsidiary of the Company, were merged into the
Company and thereby became direct assets and liabilities of the Company. In
connection with this transaction, all of the Trust's outstanding publicly issued
debt (i.e., debt issued under New Plan Realty Trust's Indenture dated as of
March 29, 1995) was assumed by the Company. In addition, as a result of the
merger transaction, the existing guarantees by New Plan Realty Trust of certain
of the Company's outstanding publicly issued debt (i.e., debt issued under the
Company's Indenture dated as of February 3, 1999) were terminated in accordance
with the terms of the Indenture.
New Chief Executive Officer and President
On February 23, 2000, Glenn J. Rufrano was appointed Chief Executive
Officer and President of the Company. Mr. Rufrano also has been appointed to the
Company's Investment Committee, and will be nominated to serve on the Company's
Board of Directors. Mr. Rufrano succeeds Arnold Laubich, who has retired as both
CEO and President.
Term Loan Agreement with Fleet National Bank
On March 7, 2000, the Company established a term loan facility with Fleet
National Bank, pursuant to which the Company may draw down up to $75 million
through April 27, 2000. Loans drawn under this facility will mature on March 5,
2001 and accrue interest at LIBOR plus 80 basis points (based on the Company's
current credit rating). The term loan agreement prepared in connection with the
facility contains covenants substantially similar to those included in the
Company's two revolving credit facilities with The Bank of New York.
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 impact of dramatic increases in electronic commerce, 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 investors with access to
significant capital such as domestic and
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foreign corporations and financial institutions, publicly traded and privately
held REITs, private institutional investment funds, investment banking firms,
life insurance companies and pension 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, 1999, 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, redeveloping and investing in retail properties (including five
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.
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.
The Company is Dependent on Key Personnel
The Company depends upon the efforts of its executive officers. The loss of
the services of one or more of the Company's executive officers or of certain
other key personnel could have a material adverse effect on the Company. 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, the impact of dramatic
increases in electronic commerce, 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.
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.
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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.
Increasing Consumer Purchases through the Internet could Reduce Demand for
the Company's Retail Space. Consumer purchases through the Internet have
increased dramatically in the last few years, and rapid growth in electronic
commerce likely will continue in the foreseeable future. Electronic commerce
could adversely impact market rents for retail space and, therefore, the
Company's financial position and ability to service debt and pay dividends to
stockholders.
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, the Company 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, 1999, leases
were scheduled to expire on a total of approximately 39% of the space at the
Company's retail properties through the end of 2003. 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, 1999, the Company's largest retail tenants were Kmart and Wal-mart,
whose scheduled annualized base rents represented 5.3% and 3.8%, respectively,
of the Company's total annualized base rents.
New Projects May Fail to Perform as Expected. The Company intends to
continue selectively 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.
Competition for Acquisitions May Result in Increased Prices for
Properties. The Company competes for acquisitions of, and investments in,
properties and real estate companies with an indeterminate number of investors,
including investors with access to significant capital such as domestic and
foreign corporations and financial institutions, publicly traded and privately
held REITs, private institutional investment funds, investment banking firms,
life insurance companies and pension funds. This competition has increased
prices for the types of properties in which the Company invests.
Because Real Estate Property Investments are Illiquid, the Company May Not
be Able to Dispose of Properties when Appropriate. Real estate property
investments generally cannot be disposed of 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
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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 approximately $1.2 billion as of December 31, 1999. 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, the credit facilities and indentures under which the Company's senior
uncollateralized 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 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, 1999, the Company had $188.7 million outstanding under its
uncollateralized revolving credit facilities under which advances bear interest
at floating interest rates. One is a $122.5 million credit facility that expires
in November 2000, and the other is a $122.5 million credit facility that expires
in November 2002. As of December 31, 1999, the Company also had approximately
$116 million in floating rate notes and mortgages outstanding, with $52 million
maturing in May 2000, $12 million maturing in August 2000, $2 million maturing
in November 2000 and approximately $50 million maturing in various amounts not
exceeding $10 million each on various dates from July 2001 to June 2029. The
Company was not a party to any hedging agreements with respect to its floating
rate debt as of December 31, 1999. In the event of a significant increase in
interest rates, the Company would consider entering into hedging agreements with
8
<PAGE> 11
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 Company's share ownership limit 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 in control or other
transaction that might involve a premium price or otherwise be in the best
interests of the 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 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. As a result, 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 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 and has made substantial loans to a noncontrolled company, ERT,
that is engaged in the real estate development business, and has guaranteed
approximately $103 million of indebtedness of ERT. At December 31, 1999, amounts
9
<PAGE> 12
outstanding relating to the guarantees was $93.6 million. Although the Company
owns 95% of the economic interest in ERT, the voting stock of ERT is owned by a
private company controlled by an executive officer (and director) of the
Company. 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.
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.
Market Interest Rates May Affect 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
10
<PAGE> 13
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 the Company must, among other things, distribute to
its stockholders each year at least 95% of its REIT taxable income (excluding
any net capital gains). 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 the
Company's growth potential and the Company's 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, New Plan Realty Trust and Excel Realty Trust, Inc., 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 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 any net 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.
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.
The Company Could be Disqualified as a REIT or Have to Pay Taxes if its
Predecessor Companies Did Not Qualify as REITs. If either New Plan Realty Trust
or Excel Realty Trust, Inc., whose businesses were combined in a merger
transaction 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 either of the
Company's predecessor companies did not distribute such earnings and profits
prior to the merger transaction, the Company might not qualify as a REIT. The
Company believes that each of the predecessor companies qualified as a REIT and
that, in any event, neither of the predecessor companies had any undistributed
"C corporation earnings and profits" at the time of the merger transaction. If
either of the predecessor companies failed to qualify as a REIT, it would have
recognized taxable gain at the time of the merger transaction (and the Company
would be liable for the tax on such gain). This would be the case even though
the merger transaction 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
11
<PAGE> 14
each of the predecessor companies. This election will have the effect of
requiring the Company, if either of the predecessor companies was not qualified
as a REIT, to pay corporate income tax on any gain existing at the time of the
merger transaction on assets acquired in the transaction if such assets are sold
within 10 years after the transaction. Finally, if either of the predecessor
companies 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 that
predecessor company failed to qualify if the Company were determined to be a
"successor" to that predecessor company.
ITEM 2. PROPERTIES
As of December 31, 1999, the Company owned interests in 303 retail
properties (including one retail property under redevelopment, five office
properties and two vacant land parcels) and 53 apartment communities (including
three apartment communities under redevelopment). Properties held by ERT are
excluded from the table below. The following table sets forth certain
information as of December 31, 1999 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 98.7% 760,014 1.7% 9 2,271 93.3% 18.6%
Arizona..................... 12 95.8% 1,107,370 3.6% -- -- -- --
Arkansas.................... 2 100.0% 105,459 0.2% -- -- -- --
California.................. 17 93.1% 2,504,151 10.3% -- -- -- --
Colorado.................... 2 100.0% 352,156 1.6% -- -- -- --
Delaware.................... 2 94.5% 243,934 0.5% 2 303 92.4% 2.6%
Florida..................... 18 93.3% 2,693,482 7.6% 2 539 95.2% 5.8%
Georgia..................... 34 91.0% 3,097,715 7.0% 2 420 96.7% 3.8%
Illinois.................... 10 97.6% 1,231,057 4.2% -- -- -- --
Indiana..................... 14 92.6% 964,472 2.0% 3 893 86.3% 6.8%
Iowa........................ 5 91.4% 604,896 1.2% -- -- -- --
Kentucky.................... 9 93.6% 1,456,210 3.4% 3 539 90.4% 4.7%
Louisiana................... 2 98.6% 261,518 0.6% 3 1,244 86.6% 10.2%
Maryland.................... 3 75.1% 380,529 0.9% -- -- -- --
Michigan.................... 13 90.5% 2,120,220 6.1% -- -- -- --
Minnesota................... 3 97.4% 85,898 0.4% -- -- -- --
Missouri.................... 4 87.3% 726,703 4.0% 1 309 94.2% 3.0%
Nebraska.................... 3 100.0% 70,513 0.2% -- -- -- --
Nevada...................... 3 97.7% 587,377 2.0% -- -- -- --
New Jersey.................. 9 95.8% 1,133,595 4.2% -- -- -- --
New York.................... 26 86.8% 3,440,210 7.6% 2 308 94.5% 2.5%
North Carolina.............. 17 94.7% 1,801,132 4.0% 2 463 89.2% 4.8%
Ohio........................ 22 88.4% 3,181,127 7.0% 5 925 87.2% 8.2%
Oklahoma.................... 1 100.0% 45,510 0.1% -- -- -- --
Pennsylvania................ 20 92.9% 2,280,379 6.6% 1 130 96.9% 1.3%
South Carolina.............. 5 94.6% 376,324 1.1% 4 816 91.2% 6.7%
Tennessee................... 16 94.5% 1,874,187 4.6% 11 2,480 89.1% 21.0%
Texas....................... 7 98.7% 500,995 1.5% -- -- -- --
Utah........................ 1 97.6% 587,550 1.2% -- -- -- --
Virginia.................... 12 90.2% 1,676,495 3.8% -- -- -- --
West Virginia............... 3 94.2% 354,938 0.8% -- -- -- --
--- ----- ---------- ----- -- ------ ---- -----
302 92.3% 36,606,116 100.0% 50 11,640 90.8% 100.0%
=== ===== ========== ===== == ====== ==== =====
</TABLE>
12
<PAGE> 15
<TABLE>
<CAPTION>
RETAIL PROPERTIES -- UNDER REDEVELOPMENT APARTMENT COMMUNITIES -- UNDER REDEVELOPMENT
---------------------------------------------------------------------------------------------------
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>
Florida..................... 1 N/A 679,661 N/A
Kentucky.................... 1 244 N/A N/A
Ohio........................ 2 676 N/A N/A
--- ---------- -- ------
303 37,285,777 53 12,560
=== ========== == ======
</TABLE>
- ---------------
(1) ABR represents annualized base rent (contractual minimum lease payments as
of December 31, 1999).
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 1999.
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 1, 2000, there were approximately
13,743 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 1999 and 1998 with
respect to the Company's common stock:
<TABLE>
<CAPTION>
CASH
DIVIDENDS
HIGH(1) LOW(1) DECLARED(1)
-------- -------- -----------
<S> <C> <C> <C>
1998:
First quarter........................ $29.6875 $25.2600 $0.4170
Second quarter....................... 25.0000(2) 21.6667(2) 0.4170
Third quarter........................ 25.0000 21.5000 0.4170
Fourth quarter....................... 23.6875 20.0625 0.4000
1999:
First quarter........................ $22.5625 $18.7500 $0.4025
Second quarter....................... 20.6875 18.0000 0.4050
Third quarter........................ 19.2500 17.6250 0.4075
Fourth quarter....................... 18.0000 14.7500 0.4100
</TABLE>
- ---------------
(1) The high and low sales price and cash dividends declared prior to the merger
transaction on September 28, 1998 are those of Excel Realty Trust, Inc., and
have been adjusted to reflect the 20% stock dividend that Excel Realty
Trust, Inc. paid in connection with the merger transaction. The actual cash
dividends declared by Excel Realty Trust, Inc. were $0.50 for each of the
first, second and third quarters of 1998.
(2) On March 31, 1998, Excel Realty Trust, Inc. consummated a spin-off of Excel
Legacy Corporation through the distribution, on a pro-rata basis, to the
holders of Excel Realty Trust, Inc.'s common stock, of all of the common
stock of Excel Legacy Corporation held by Excel Realty Trust, Inc.
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<PAGE> 16
ITEM 6. SELECTED FINANCIAL DATA
The financial information included in the following table has been derived
from the audited consolidated financial statements for the periods indicated.
This information should be read together with the audited financial statements
of the Company and Management's Discussion and Analysis of the Financial
Condition and Results of Operations included elsewhere in this Annual Report on
Form 10-K.
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 transaction, Excel changed
its name to "New Plan Excel Realty Trust, Inc."
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.
(IN THOUSANDS, EXCEPT FOR PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
FIVE MONTHS
YEAR ENDED ENDED YEARS ENDED JULY 31,
DECEMBER 31, DECEMBER 31, ---------------------------------------------
1999 1998 1998 1997 1996 1995
------------ ------------ ---------- ---------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
STATEMENT OF INCOME DATA:
Revenue.................................... $ 438,027 $ 155,921 $ 250,259 $ 206,821 $167,606 $130,576
Expenses................................... 295,171 99,693 159,645 129,781 97,484 68,088
---------- ---------- ---------- ---------- -------- --------
142,856 56,228 90,614 77,040 70,122 62,488
Minority interest.......................... (1,299) (457) -- -- -- --
Gain/(loss) on sales of properties and
securities, net.......................... 7,956 34 (41) (3) 399 228
---------- ---------- ---------- ---------- -------- --------
Net income................................. 149,513 55,805 90,573 77,037 70,521 62,716
Preferred dividends........................ (22,777) (6,914) (5,850) (461) -- --
---------- ---------- ---------- ---------- -------- --------
Net income applicable to common
shareholders............................. $ 126,736 $ 48,891 $ 84,723 $ 76,576 $ 70,521 $ 62,716
========== ========== ========== ========== ======== ========
Net income per common share
Basic.................................. $ 1.43 $ 0.63 $ 1.43 $ 1.31 $ 1.25 $ 1.19
Diluted................................ $ 1.42 $ 0.62 $ 1.42 $ 1.30 $ 1.25 $ 1.18
Weighted average number of common shares
outstanding
Basic.................................. 88,662 77,481 59,365 58,461 56,484 52,894
Diluted................................ 90,440 79,396 59,774 58,735 56,642 53,040
OTHER DATA:
Distributions per common share............. $ 1.625 $ 0.678 $ 1.475 $ 1.435 $ 1.395 $ 1.355
========== ========== ========== ========== ======== ========
BALANCE SHEET DATA AS OF
THE END OF EACH PERIOD:
Total assets............................... $2,953,141 $2,896,568 $1,386,831 $1,263,958 $948,477 $800,006
Long-term debt obligations................. 1,220,451 1,105,271 576,888 478,207 238,426 206,652
Shareholders' equity....................... 1,611,519 1,662,242 766,833 747,719 662,438 573,900
</TABLE>
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<PAGE> 17
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
uncollateralized 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 excess cash flow, the sale of common stock, preferred
stock or debt securities through public offerings or private placements, the
incurrence of additional indebtedness through 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. 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 and (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.
As of December 31, 1999, the Company had approximately $12.0 million in
available cash, cash equivalents and marketable securities.
The Company has two revolving credit facilities with The Bank of New York,
each of which provides for $122.5 million in uncollateralized advances from a
group of banks. One facility expires in November 2000 and the other expires in
November 2002. As of December 31, 1999, the Company had $188.7 million
outstanding under these facilities. The covenants of these credit facilities
include maintaining certain ratios such as liabilities to assets of less than
50% and maintaining a minimum unencumbered assets coverage ratio of 2 to 1. In
addition, on March 7, 2000, the Company established a term loan facility with
Fleet National Bank, pursuant to which the Company may draw down up to $75
million through April 27, 2000. Loans drawn under this facility will mature on
March 5, 2001, and accrue interest at LIBOR plus 80 basis points (based on the
Company's current credit rating). The term loan agreement prepared in connection
with the facility contains covenants substantially similar to those included in
the two credit facilities of the Company with The Bank of New York.
In addition to outstanding amounts on the Company's credit facilities, debt
as of December 31, 1999 consisted of $341.6 million of mortgages payable having
a weighted average interest rate of 7.8% and $662.7 million of notes payable
with a weighted average interest rate of 7.2%. Of this debt, $115.8 million bear
variable interest rates. Additionally, the Company has $1.2 million in
marketable equity securities which are sensitive to market price changes and
notes receivable in the amount of Canadian $16.0 million (approximately U.S.
$11.1 million as of December 31, 1999) which are sensitive to currency exchange
rate fluctuations. The Company has guaranteed approximately $103 million of
indebtedness of ERT. At December 31, 1999, loan amounts outstanding related to
these guarantees was approximately $93.6 million. ERT has third-party debt of
$84 million, excluding notes payable to the Company, having a weighted average
interest rate of 9.0%. The Company provides substantially all of the capital
required to fund ERT's operations.
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. On February 3, 1999, the Company established under this shelf
registration statement 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. On July 15, 1999, the Company issued $175 million aggregate principal
amount of notes under its medium-term notes program in two series. The Company
issued $150 million with a 10-year maturity and a coupon of 7.4% and $25 million
of another series with a 30-year maturity and a coupon of 7.5%. The net proceeds
of these issuances were used to reduce the outstanding balance on the Company's
credit facility. In September 1999, the Company re-established its medium-term
notes program in the aggregate principal amount of $325 million. On November 12,
1999, the Company issued
15
<PAGE> 18
$49 million aggregate principal amount of notes under its medium-term notes
program with a four-year maturity and a coupon of 7.33%.
In October 1999, the Company announced that its Board of Directors had
authorized the repurchase of up to $75 million of the Company's outstanding
common stock from time to time through periodic open market transactions or
through privately negotiated transactions. Through December 31, 1999, 1,231,000
shares had been repurchased and retired at an average purchase price of $16.36
per share. In May 1999, an additional 1,226,000 shares were purchased from seven
executives, all formerly of Excel, who resigned. The purchase price was $21 per
share.
Other sources of funds are available to the Company. Based on management's
internal evaluation 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, 1999: (i) 1,507,000 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 $.4125 per
share. The maintenance of this dividend 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.
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 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
16
<PAGE> 19
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 $3
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.
YEAR 2000 COMPLIANCE
The Company's Year 2000 review involved (i) an assessment of the Year 2000
problems that may affect the Company, (ii) the development of remedies to
address the problems discovered in the assessment phase to the extent practical
or feasible, (iii) the testing of such remedies, and (iv) the preparation of
contingency plans to deal with worst case scenarios. As of the date of this
report, the Company has not encountered any material business interruptions or
adverse financial consequences related to the Year 2000 issue.
The Company currently estimates that the total historical and anticipated
remaining costs related to the Year 2000 issue will be immaterial to the
Company's financial condition.
RECENTLY ISSUED ACCOUNTING STANDARDS
In June 1998, the Financial Accounting Standards Board issued SFAS No. 133,
"Accounting for Derivative Instruments and Hedging Activities." SFAS No. 133
establishes accounting and reporting standards for derivative instruments,
including certain derivative instruments imbedded in other contracts, and
hedging activities. It requires that an entity recognize all derivatives as
either assets or liabilities in the statement of financial position and measure
those instruments at fair value as issued. SFAS No. 133 is effective January 1,
2000; however, SFAS 137, "Deferral of the Effective Date of SFAS 133," extends
the effective date for the Company to January 2001. The Company does not
anticipate that the adoption of SFAS 133 will have a material impact on its
financial statements.
At its meeting on October 27, 1999, NAREIT's leadership clarified the
industry's supplemental performance measure to confirm that funds from
operations should include all operating results, both recurring and
nonrecurring, except for those results defined as "extraordinary items" under
generally accepted accounting principles and gains and losses from sales of
depreciable operating properties. The clarification is effective for years
beginning January 1, 2000.
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.
Twelve Months Ended December 31, 1999 Compared to the Twelve Months Ended
December 31, 1998
The results of operations reflected in the Consolidated Statements of
Income and Comprehensive Income include post-Merger results for the twelve
months ended December 31, 1999 and the five months ended December 31, 1998. The
following includes pro forma financial information for the year ended December
31, 1998 presented as if the Merger had been consummated on January 1, 1998 in
order to make the comparison of 1999 and 1998 more informative. Except as stated
otherwise, the discussions below relate to comparison of actual results for the
twelve-month period ended December 31, 1999 to pro forma results for the
twelve-month period ended December 31, 1998. The pro forma results are not
necessarily indicative of what the results would have been if the Merger
actually occurred on January 1, 1998.
17
<PAGE> 20
The actual results of operations for the twelve months ended December 31,
1998 have been derived by aggregating the estimated results of operations and
cash flows for the month ended January 31, 1998, the amounts reported for the
three months ended April 30 and July 31, 1998, and the actual results for the
five months ended December 31, 1998 (which reflect the Merger as of September
28, 1998).
(IN THOUSANDS, EXCEPT FOR PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
TWELVE MONTHS ENDED DECEMBER 31,
---------------------------------
1999 1998 1998
(ACTUAL) (PRO FORMA) (ACTUAL)
-------- ----------- --------
<S> <C> <C> <C>
Revenues
Retail................................................. $337,004 $322,884 $225,931
Residential............................................ 77,477 74,415 71,662
Interest, dividend and other........................... 23,546 21,253 7,840
-------- -------- --------
Total revenues.................................... 438,027 418,552 305,433
Expenses
Operating costs........................................ 90,612 81,614 68,737
Real estate and other taxes............................ 38,929 36,380 27,286
Interest............................................... 81,412 71,902 49,655
Depreciation and amortization.......................... 62,912 58,865 40,416
Provision for doubtful accounts........................ 6,144 6,285 5,366
Non-recurring charges.................................. 8,497 -- --
General and administrative............................. 6,665 7,719 3,758
-------- -------- --------
Total expenses.................................... 295,171 262,765 195,218
-------- -------- --------
Income before real estate sales and minority interest....... 142,856 155,787 110,215
Sale of real estate/securities.............................. 7,956 371 58
Minority interest in income from partnership................ (1,299) (1,684) (457)
-------- -------- --------
Net Income.................................................. $149,513 $154,474 $109,816
======== ======== ========
Net income per share:
Basic.................................................. $ 1.43 $ 1.49 $ 1.48
======== ======== ========
Diluted................................................ $ 1.42 $ 1.46 $ 1.47
======== ======== ========
</TABLE>
All changes between 1998 actual results and 1999 actual results are
primarily attributable to the Merger as well as the impact of property
acquisitions made by Excel during 1998. Accordingly, the following discussions
reflect a comparison of pro forma 1998 data to actual 1999 data.
The Company acquired 36 properties between January 1, 1998 and December 31,
1999, including 31 retail and five residential properties. These retail
acquisitions produced increased revenue of $16.2 million in 1999. In addition,
revenue in the current period was reduced $1.1 million because of the sale of
six properties and was reduced $1.7 million because of an adjustment of common
area maintenance revenue relating to certain properties. The remaining retail
revenue change was an increase of $0.7 million, or 0.2%. The residential
acquisitions produced increased revenue of $3.9 million and the sale of two
properties reduced revenue by $0.5 million in fiscal year 1999. The remaining
residential revenue change was a decrease of $0.4 million, or 0.5%.
The increase in interest, dividend and other revenues was primarily the
result of the following factors. The net effect of an interest revenue increase
and equity revenue decrease from ERT Development Corporation was a decrease of
$2.8 million. This decrease was offset by increases in interest revenues from
development notes receivable of $1.1 million, currency gains of $1.8 million,
financing commitment fees revenue of $1.4 million and an insurance recovery of
$0.5 million. The remaining interest, dividend and other revenue change was an
increase of $0.3 million, or 1.0%.
18
<PAGE> 21
Property acquisitions and the assumption of related debt resulted in $14.3
million of the $32.4 million increase in total expenses, including a $5.6
million increase in operating costs, $4.0 million in additional depreciation,
$1.8 million in additional real estate and taxes, and $2.9 million in interest
expense. The remaining $3.4 million increase in operating costs is principally
attributable to increases in snow removal, professional service costs and
turnover costs in the residential division during the current year. The
remaining $6.6 million increase in interest expense was primarily the result of
increased borrowings in connection with property acquisitions, severance costs
and common stock repurchases resulting from the resignation of seven executives,
all formally of Excel Realty Trust, Inc. and the purchase by the Company of
Excel Realty Partners, L.P. partnership units. The decrease of $1.1 million in
general and administrative costs relates primarily to staff reductions in the
closing of the Company's San Diego office which was partially offset by a
non-recurring increase in professional fees of approximately $0.8 million
related to a terminated acquisition of another company. The $8.5 million
non-recurring charge is a result of payments of $1.7 million in severance
payments, $6.0 million in stock compensation expense related to the settlement
of outstanding stock options and $0.8 million of other costs related to the
resignation of the aforementioned seven executives in April 1999.
Five Months Ended December 31, 1998 Compared to Five Months Ended December 31,
1997
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. 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, except
for per share amounts):
<TABLE>
<CAPTION>
FIVE MONTHS FIVE MONTHS FIVE MONTHS
ENDED ENDED ENDED
DECEMBER 31, DECEMBER 31, DECEMBER 31,
1998 1998 1997
(ACTUAL) (PRO FORMA) (ACTUAL)
------------ ------------ ------------
<S> <C> <C> <C>
Total revenues.......................................... $155,921 $179,092 $100,457
Expenses:
Operating costs.................................... 32,764 32,233 25,325
Real estate and other taxes........................ 13,456 15,655 9,047
Interest........................................... 27,168 32,339 14,309
Depreciation and amortization...................... 21,366 25,644 12,544
Provision for doubtful accounts.................... 2,825 2,884 1,675
General and administrative......................... 2,114 2,849 1,143
-------- -------- --------
Total expenses................................ 99,693 111,604 64,043
Gain/(loss) on sale of real estate/securities........... 34 34 (67)
Minority interest in income from partnership............ (457) (739) --
-------- -------- --------
Net income.............................................. $ 55,805 $ 66,783 $ 36,347
======== ======== ========
Net income per share:
Basic.............................................. $ 0.63 $ 0.66 $ 0.62
======== ======== ========
Diluted............................................ $ 0.62 $ 0.64 $ 0.61
======== ======== ========
</TABLE>
Excel acquired 22 properties from August 1997 to September 1998 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 in actual results only for the period from the Merger to
December 31, 1998. In addition to the acquisitions Excel has made, the Company
acquired 23 properties from August 1997 to December 1998.
19
<PAGE> 22
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
$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 ERT 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. 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
uncollateralized notes
20
<PAGE> 23
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.
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 non-recurring items. FFO is
not a substitute for cash flows from operating activities 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 periods indicated (in
thousands, except per share amounts):
<TABLE>
<CAPTION>
YEAR FIVE MONTHS FIVE MONTHS
ENDED ENDED ENDED YEAR ENDED YEAR ENDED
DECEMBER 31, DECEMBER 31, DECEMBER 31, JULY 31, JULY 31,
1999 1998 1997 1998 1997
------------ ------------ ------------ ---------- ----------
<S> <C> <C> <C> <C> <C>
Net income.......................... $149,513 $55,805 $36,347 $ 90,573 $ 77,037
Preferred dividends............ (22,777) (6,914) (2,437) (5,850) (461)
Minority interest.............. 1,299 457 -- -- --
-------- ------- ------- -------- --------
Net income applicable to common
shareholders -- diluted........... 128,035 49,348 33,910 84,723 76,576
(Gains)/loss on real estate and
securities........................ (7,956) (34) 67 41 3
Dilutive preferred A dividends...... 3,343 -- -- -- --
Depreciation and amortization,
including depreciation relating to
equity investments................ 66,389 21,366 12,544 31,622 25,006
Non-recurring charge................ 8,497 -- -- -- --
-------- ------- ------- -------- --------
Funds from operations............... $198,308 $70,680 $46,521 $116,386 $101,585
======== ======= ======= ======== ========
Weighted average of common shares
outstanding -- diluted............ 92,397 79,396 59,720 59,774 58,735
======== ======= ======= ======== ========
FFO per share -- diluted............ $ 2.15 $ 0.89 $ 0.78 $ 1.95 $ 1.73
======== ======= ======= ======== ========
</TABLE>
Preferred A shares have a dilutive effect on the FFO calculation. On a pro
forma basis, FFO would have been $83,974 and $72,318 for 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
21
<PAGE> 24
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 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
Increases in interest rates would increase the Company's interest expense,
which would adversely affect the Company's cash flow. As of December 31, 1999,
the Company had approximately $305 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
$1.2 billion of outstanding total debt of the Company and the approximately $3.0
billion of total assets of the Company.
The Company was not a party to any hedging agreements with respect to its
floating rate debt as of December 31, 1999. 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.
If the market rates of interest on the Company's variable rate debt change
by 10% (or approximately 70 basis points) the Company's interest expense would
change by approximately $2.0 million, assuming the amount of the Company's
outstanding floating rate debt remains at $305 million, the balance at December
31, 1999.
As of December 31, 1999, the Company had notes receivable in the total
amount of Canadian $16 million (approximately U.S. $11.1 million as of December
31, 1999). 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, 1999.
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.
22
<PAGE> 25
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 2000 (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."
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,
1999.
None.
(c) Exhibits. The following documents are filed as exhibits to this
report:
<TABLE>
<C> <S>
*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.
*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.
*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.
*3.4 Amendments to the Bylaws of the Company, dated April 21,
1999, filed as Exhibit 3.1 to the Company's Quarterly Report
on Form 10-Q/A for the quarter ended June 30, 1999.
*3.5 Amendments to the Bylaws of the Company, dated June 3, 1999,
filed as Exhibit 3.2 to the Company's Quarterly Report on
Form 10-Q/A for the quarter ended June 30, 1999.
3.6 Amendments to the Bylaws of the Company, dated February 7,
2000.
*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.
</TABLE>
23
<PAGE> 26
<TABLE>
<C> <S>
*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 filed
as Exhibit 4.3 to the Company's Annual Report on Form 10-K/A
for the year ended December 31, 1998.
*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.
*10.1 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.
*10.2 Amendment to the Amended and Restated 1993 Stock Option Plan
of the Company, dated May 28, 1998, dated September 28,
1998, filed as Exhibit 10.4 to the Company's Annual Report
on Form 10-K/A for the year ended December 31, 1998.
*10.3 Amendment to the Amended and Restated 1993 Stock Option Plan
of the Company, dated February 8, 1999, filed as Exhibit
10.5 to the Company's Annual Report on Form 10-K/A for the
year ended December 31, 1998.
10.4 Amendment to the Amended and Restated 1993 Stock Option Plan
of the Company, dated April 21, 1999.
10.5 Amendment to the Amended and Restated 1993 Stock Option Plan
of the Company, dated February 17, 2000.
*10.6 Directors' Amended and Restated 1994 Stock Option Plan of
the Company, dated May 10, 1996, filed as Exhibit 10.8 to
the Company's Annual Report on Form 10-K/A for the year
ended December 31, 1998.
*10.7 Amendment to the Amended and Restated 1994 Directors' Stock
Option Plan of the Company, dated September 28, 1998, filed
as Exhibit 10.9 to the Company's Annual Report on Form
10-K/A for the year ended December 31, 1998.
10.8 Amendment to the Amended and Restated 1994 Directors' Stock
Option Plan of the Company, dated February 17, 2000.
*10.9 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.
*10.10 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.
*10.11 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.
*10.12 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.
10.13 Credit Agreement, dated as of November 17, 1999, by and
among New Plan Excel Realty Trust, Inc., the lenders party
thereto, The Bank of New York, as administrative agent, and
Bank One, NA and BankBoston, N.A., each as co-documentation
agent.
10.14 Guaranty, dated as of November 17, 1999, by and among New
Plan Realty Trust, Excel Realty Trust -- ST, Inc. and The
Bank of New York, as administrative agent.
10.15 Credit Agreement, dated as of November 17, 1999, by and
among New Plan Excel Realty Trust, Inc., the lenders party
thereto, The Bank of New York, as administrative agent, and
Bank One, NA and BankBoston, N.A., each as co-documentation
agent.
10.16 Guaranty, dated as of November 17, 1999, by and among New
Plan Realty Trust, Excel Realty Trust -- ST, Inc. and The
Bank of New York, as administrative agent.
</TABLE>
24
<PAGE> 27
<TABLE>
<C> <S>
*10.17 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.
*10.18 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.
*10.19 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.
*10.20 Senior Securities Indenture, dated as of March 29, 1995,
between New Plan Realty Trust and The First National Bank of
Boston, as Trustee filed as Exhibit 4.2 to New Plan Realty
Trust's Registration Statement on Form S-3, File No.
33-60045.
*10.21 First Supplemental Indenture, dated as of August 5, 1999, by
and among New Plan Realty Trust, New Plan Excel Realty
Trust, Inc. and State Street Bank and Trust Company filed as
Exhibit 10.2 to the Company's Quarterly Report on Form 10-Q
for the quarter ended September 30, 1999.
*10.22 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.
*10.23 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 First Amendment to Amended and Restated Agreement of Limited
Partnership of Excel Realty Partners, L.P., dated as of
August 20, 1999, by and among New Plan DRP Trust, New Plan
Excel Realty Trust, Inc. and the current and future partners
in the partnership filed as Exhibit 10.3 to the Company's
Quarterly Report on Form 10-Q for the quarter ended
September 30, 1999.
*10.25 Master Separation Agreement, dated as of April 21, 1999,
among New Plan Excel Realty Trust, Inc., ERT Development
Corporation and Excel Legacy Corporation filed as Exhibit
10.1 to the Company's Current Report on Form 8-K dated April
22, 1999.
*10.26 Resignation and Release Agreement, dated as of April 21,
1999, entered into between the Company and Gary B. Sabin
filed as Exhibit 10.2 to the Company's Current Report on
Form 8-K dated April 22, 1999.
*10.27 Resignation and Release Agreement, dated as of April 21,
1999, entered into between the Company and Richard B. Muir
filed as Exhibit 10.3 to the Company's Current Report on
Form 8-K dated April 22, 1999.
*10.28 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.
*10.29 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 19, 1998.
*10.30 First Amendment to Rights Agreement, dated as of February 8,
1999, between the Company and BankBoston, N.A. filed as
Exhibit 4.1 to the Company's Report on Form 8-A/A (Amendment
No. 1) dated May 5, 1999.
*10.31 Dividend Reinvestment and Share Purchase Plan filed as
Exhibit 4.7 to the Company's Registration Statement on Form
S-3, File No. 333-65211.
</TABLE>
25
<PAGE> 28
<TABLE>
<C> <S>
*10.32 Employment Agreement, dated as of September 17, 1998, by and
between the Company and William Newman, filed as Exhibit
10.39 to the Company's Annual Report on Form 10-K/A for the
year ended December 31, 1998.
*10.33 Employment Agreement, dated as of February 23, 2000, by and
between the Company and Glenn J. Rufrano, filed as Exhibit
10.1 to the Company's Current Report on Form 8-K, dated
March 9, 2000.
*10.34 Employment Agreement, dated as of September 25, 1998, by and
between the Company and James M. Steuterman, filed as
Exhibit 10.43 to the Company's Annual Report on Form 10-K/A
for the year ended December 31, 1998.
*10.35 Employment Agreement, dated as of September 25, 1998, by and
between the Company and Steven F. Siegel, filed as Exhibit
10.45 to the Company's Annual Report on Form 10-K/A for the
year ended December 31, 1998.
10.36 Employment Agreement, dated as of September 25, 1998, by and
between the Company and James DeCicco.
*10.37 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.
*10.38 Agreement, dated as of February 23, 2000, by and between the
Company and Arnold Laubich, filed as Exhibit 10.9 to the
Company's Current Report on Form 8-K, dated March 9, 2000.
10.39 Unconditional Guaranty of Payment and Performance, dated as
of January 28, 2000, by the Company (Pointe Orlando).
*10.40 Unconditional Guaranty of Payment and Performance, dated as
of January 13, 1997, by the Company (Briar Preston Ridge),
filed as Exhibit 10.49 to the Company's Annual Report on
Form 10-K/A for the year ended December 31, 1998.
10.41 Term Loan Agreement, dated as of March 7, 2000, between the
Company and Fleet National Bank
10.42 Guaranty, dated as of March 7, 2000, by the Trust and Excel
Realty Trust -- ST, Inc.
12 Ratio of Earnings to Fixed Charges.
21 Subsidiaries of the Registrant.
23 Consent of PricewaterhouseCoopers LLP.
27(1) Financial Data Schedule.
</TABLE>
- ---------------
* Incorporated herein by reference as above indicated.
(1) Filed as exhibit to electronic filing only.
(d) Financial Statement Schedules. The following documents are filed as a
part of this report:
The response to this portion of Item 14 is submitted as a separate section
of this report.
26
<PAGE> 29
NEW PLAN REALTY TRUST INC. AND SUBSIDIARIES
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
----
<C> <S> <C>
1. CONSOLIDATED STATEMENTS
Report of Independent Auditors.............................. F-2
Consolidated Balance Sheets
December 31, 1999, December 31, 1998 and July 31, 1998.... F-3
Consolidated Statements of Income and Comprehensive Income
for the Year ended December 31, 1999, the Five Months
ended December 31, 1998 and the Years ended July 31, 1998
and 1997.................................................. F-4
Consolidated Statements of Changes in Shareholders' Equity
for the Year ended December 31, 1999, the Five Months
ended December 31, 1998, and the Years ended July 31, 1998
and 1997.................................................. F-5
Consolidated Statements of Cash Flows for the Year ended
December 31, 1999, the Five Months ended December 31, 1998
and the Years ended July 31, 1998, and 1997............... 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-51
</TABLE>
F-1
<PAGE> 30
REPORT OF INDEPENDENT AUDITORS
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 consolidated
financial position of New Plan Excel Realty Trust, Inc. and its subsidiaries at
December 31, 1999 and 1998 and July 31, 1998, and the related consolidated
results of their operations and cash flows for the year ended December 31, 1999,
the five months ended December 31, 1998 and each of the two years in the period
ended July 31, 1998, in conformity with accounting principles generally accepted
in the United States of America. 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 schedules based on our audits. We conducted our audits of these
statements in accordance with auditing standards generally accepted in the
United States of America, 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, as
well as evaluating the overall financial statement presentation. We believe that
our audits provide a reasonable basis for our opinion.
PricewaterhouseCoopers LLP
New York, New York
February 17, 2000
F-2
<PAGE> 31
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
DECEMBER 31, 1999, DECEMBER 31, 1998 AND JULY 31, 1998
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
ASSETS
<TABLE>
<CAPTION>
DECEMBER 31, DECEMBER 31, JULY 31,
1999 1998 1998
------------ ------------ ----------
<S> <C> <C> <C>
Real estate:
Land...................................................... $ 552,146 $ 545,400 $ 272,176
Building and improvements................................. 2,328,499 2,280,069 1,180,562
Accumulated depreciation.................................. (216,274) (158,021) (136,978)
---------- ---------- ----------
Net real estate..................................... 2,664,371 2,667,448 1,315,760
Cash and cash equivalents................................... 10,834 13,951 26,284
Marketable securities....................................... 1,190 1,700 1,787
Receivables:
Trade, less allowance for doubtful accounts of $13,897,
$11,636 and $7,926 at December 31, 1999, December 31,
1998 and July 31, 1998, respectively.................... 30,225 23,422 14,025
Other, net................................................ 15,825 12,155 3,682
Mortgages and notes receivable.............................. 59,142 50,065 13,878
Prepaid expenses and deferred charges....................... 13,076 6,181 7,823
Investment in and loans to ERT Development Corporation...... 150,432 113,779 --
Other assets................................................ 8,046 7,867 3,592
---------- ---------- ----------
Total assets........................................ $2,953,141 $2,896,568 $1,386,831
========== ========== ==========
LIABILITIES AND STOCKHOLDERS' EQUITY
Liabilities:
Mortgages payable, including unamortized premium of $9,921
and $12,345 at December 31, 1999 and 1998,
respectively............................................ $ 341,643 $ 388,185 $ 114,099
Notes payable, net of unamortized discount of $2,264, $1,141
and $1,211 at December 31, 1999, December 31, 1998 and
July 31, 1998 respectively................................ 662,736 489,235 462,789
Credit facilities........................................... 188,721 200,500 --
Capital leases.............................................. 27,351 27,351 --
Other liabilities........................................... 88,591 81,263 37,520
Tenant security deposits.................................... 7,480 7,141 5,590
---------- ---------- ----------
Total liabilities................................... 1,316,522 1,193,675 619,998
---------- ---------- ----------
Minority interest in partnership............................ 25,100 40,651 --
---------- ---------- ----------
Commitments and contingencies............................... -- -- --
Stockholders' equity:
Preferred stock, Series A: $.01 par value, 25,000 shares
authorized: 4,600 shares designated as 8 1/2% Series A
Cumulative Convertible Preferred 1,507 and 2,124
outstanding at December 31, 1999 and 1998, respectively;
Series B: 6,300 depository shares, each representing
1/10 of one share of 8 5/8% Series B Cumulative
Redeemable Preferred, 630 outstanding at December 31,
1999 and 1998; Series D: 1,500 depositary shares, each
representing 1/10 of one share of Series D Cumulative
Voting Step-Up Premium Rate Preferred, 150 shares
outstanding at December 31, 1999, December 31, 1998 and
July 31, 1998........................................... 23 29 72,775
Common stock, $.01 par value, 250,000 shares authorized;
87,555 and 88,384 shares issued and outstanding as of
December 31, 1999 and 1998, respectively................ 875 884 --
Shares of beneficial interest, no par value, 59,874 shares
outstanding at
July 31, 1998............................................. -- -- 759,853
Additional paid-in capital.................................. 1,708,186 1,735,207 --
Accumulated other comprehensive income...................... 214 726 813
Accumulated distribution in excess of net income............ (97,779) (74,604) (66,608)
---------- ---------- ----------
Total stockholders' equity.......................... 1,611,519 1,662,242 766,833
---------- ---------- ----------
Total liabilities and stockholders' equity.......... $2,953,141 $2,896,568 $1,386,831
========== ========== ==========
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
F-3
<PAGE> 32
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME AND COMPREHENSIVE INCOME
FOR THE YEAR ENDED DECEMBER 31, 1999, THE FIVE MONTHS ENDED DECEMBER 31, 1998
AND
THE YEARS ENDED JULY 31, 1998 AND 1997
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
YEAR ENDED
YEAR ENDED FIVE MONTHS ENDED -------------------
DECEMBER 31, DECEMBER 31, JULY 31, JULY 31,
1999 1998 1998 1997
------------ ----------------- -------- --------
<S> <C> <C> <C> <C>
Revenues:
Rental income and related revenues......... $414,481 $150,411 $246,309 $202,093
Interest, dividend and other income........ 23,546 5,510 3,950 4,728
-------- -------- -------- --------
Total revenues..................... 438,027 155,921 250,259 206,821
-------- -------- -------- --------
Expenses:
Operating costs............................ 90,612 32,764 61,417 52,584
Real estate and other taxes................ 38,929 13,456 22,850 18,449
Interest................................... 81,412 27,168 36,815 28,256
Depreciation and amortization.............. 62,912 21,366 31,622 25,006
Provision for doubtful accounts............ 6,144 2,825 4,171 3,283
Non-recurring charge....................... 8,497 -- -- --
General and administrative................. 6,665 2,114 2,770 2,203
-------- -------- -------- --------
Total expenses..................... 295,171 99,693 159,645 129,781
-------- -------- -------- --------
Income before real estate sales and
minority interest....................... 142,856 56,228 90,614 77,040
Gain/(loss) on sale of real estate and
securities................................. 7,956 34 (41) (3)
Minority interest in income of partnership... (1,299) (457) -- --
-------- -------- -------- --------
Net income................................... 149,513 55,805 90,573 77,037
Other comprehensive income (loss):
Unrealized gain (loss) on securities for
the period.............................. (512) (87) (244) 414
-------- -------- -------- --------
Comprehensive income......................... $149,001 $ 55,718 $ 90,329 $ 77,451
======== ======== ======== ========
Net income available to common stock --
basic...................................... $126,736 $ 48,891 $ 84,723 $ 76,576
======== ======== ======== ========
Net income available to common stock --
diluted.................................... $128,035 $ 49,348 $ 84,723 $ 76,576
======== ======== ======== ========
Basic earnings per common share.............. $ 1.43 $ 0.63 $ 1.43 $ 1.31
======== ======== ======== ========
Diluted earnings per common share............ $ 1.42 $ 0.62 $ 1.42 $ 1.30
======== ======== ======== ========
Average shares outstanding -- basic.......... 88,662 77,481 59,365 58,461
======== ======== ======== ========
Average shares outstanding -- diluted........ 90,440 79,396 59,774 58,735
======== ======== ======== ========
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
F-4
<PAGE> 33
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY
FOR THE YEAR ENDED DECEMBER 31, 1999, THE FIVE MONTHS ENDED DECEMBER 31, 1998
AND
THE YEARS ENDED JULY 31, 1998 AND JULY 31, 1997
(IN THOUSANDS)
<TABLE>
<CAPTION>
SHARES OF BENEFICIAL
INTEREST/ ACCUMULATED
PREFERRED STOCK COMMON STOCK ADDITIONAL OTHER
----------------- -------------------- PAID-IN COMPREHENSIVE
NUMBER AMOUNT NUMBER AMOUNT CAPITAL INCOME
------ -------- ------- ---------- ---------- -------------
<S> <C> <C> <C> <C> <C> <C>
Balance at July 31, 1996...................... -- $ -- 58,069 $ 719,080 $ -- $ 643
Net income.................................... -- -- -- -- -- --
Dividends paid................................ -- -- -- -- -- --
Dividend reinvestment......................... -- -- 750 16,475 -- --
Exercise of stock options..................... -- -- 115 2,456 -- --
Unrealized holding gain on marketable
securities.................................. -- -- -- -- 414
Issuance of preferred shares.................. 150 72,775 -- -- -- --
----- -------- ------ --------- ---------- ------
Balance at July 31, 1997...................... 150 72,775 58,934 738,011 -- 1,057
Net income.................................... -- -- -- -- -- --
Dividends paid................................ -- -- -- -- -- --
Dividend reinvestment......................... -- -- 765 18,197 -- --
Exercise of stock options..................... -- -- 175 3,645 -- --
Unrealized holding gain on marketable
securities.................................. -- -- -- -- -- (244)
----- -------- ------ --------- ---------- ------
Balance at July 31, 1998...................... 150 72,775 59,874 759,853 -- 813
Net income.................................... -- -- -- -- -- --
Dividends..................................... -- -- -- -- -- --
Dividend reinvestment......................... -- -- 235 4,373 -- --
Merger transactions........................... 2,755 (72,746) 28,275 (763,342) 1,735,207 --
Unrealized holding gain on marketable
securities.................................. -- -- -- -- -- (87)
----- -------- ------ --------- ---------- ------
Balance at December 31, 1998.................. 2,905 29 88,384 884 1,735,207 726
Net income.................................... -- -- -- -- -- --
Dividends..................................... -- -- -- -- -- --
Dividend reinvestment......................... -- -- 907 9 17,155 --
Exercise of stock options..................... -- -- 66 1 1,334 --
Shares repurchased and retired................ -- -- (2,457) (25) (45,510) --
Conversion of preferred shares................ (618) (6) 655 6 -- --
Unrealized holding gain on marketable
securities.................................. -- -- -- -- -- (512)
----- -------- ------ --------- ---------- ------
Balance at December 31, 1999.................. 2,287 $ 23 87,555 $ 875 $1,708,186 $ 214
===== ======== ====== ========= ========== ======
<CAPTION>
ACCUMULATED
DISTRIBUTIONS TOTAL
IN EXCESS OF STOCKHOLDERS'
NET INCOME EQUITY
------------- --------------
<S> <C> <C>
Balance at July 31, 1996...................... $ (57,286) $ 662,437
Net income.................................... 77,037 77,037
Dividends paid................................ (83,825) (83,825)
Dividend reinvestment......................... -- 16,475
Exercise of stock options..................... -- 2,456
Unrealized holding gain on marketable
securities.................................. -- 414
Issuance of preferred shares.................. -- 72,775
--------- ----------
Balance at July 31, 1997...................... (64,074) 747,769
Net income.................................... 90,573 90,573
Dividends paid................................ (93,107) (93,107)
Dividend reinvestment......................... -- 18,197
Exercise of stock options..................... -- 3,645
Unrealized holding gain on marketable
securities.................................. -- (244)
--------- ----------
Balance at July 31, 1998...................... (66,608) 766,833
Net income.................................... 55,805 55,805
Dividends..................................... (63,801) (63,801)
Dividend reinvestment......................... -- 4,373
Merger transactions........................... -- 899,119
Unrealized holding gain on marketable
securities.................................. -- (87)
--------- ----------
Balance at December 31, 1998.................. (74,604) 1,662,242
Net income.................................... 149,513 149,513
Dividends..................................... (172,688) (172,688)
Dividend reinvestment......................... -- 17,164
Exercise of stock options..................... -- 1,335
Shares repurchased and retired................ -- (45,535)
Conversion of preferred shares................ -- --
Unrealized holding gain on marketable
securities.................................. -- (512)
--------- ----------
Balance at December 31, 1999.................. $ (97,779) $1,611,519
========= ==========
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements
F-5
<PAGE> 34
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 1999, THE FIVE MONTHS ENDED
DECEMBER 31, 1998 AND THE YEARS ENDED JULY 31, 1998 AND 1997
(IN THOUSANDS)
<TABLE>
<CAPTION>
YEAR ENDED
YEAR ENDED FIVE MONTHS ENDED ---------------------
DECEMBER 31, DECEMBER 31, JULY 31, JULY 31,
1999 1998 1998 1997
------------ ----------------- --------- ---------
<S> <C> <C> <C> <C>
Cash flows from operating activities:
Net income.............................................. $ 149,513 $ 55,805 $ 90,573 $ 77,037
Adjustments to reconcile net income to net cash provided
by operations:
Depreciation and amortization......................... 62,912 21,366 31,622 25,006
Amortization of premium/discount on mortgages and
notes payable....................................... (3,547) -- -- --
Foreign currency gain................................. (674) -- -- --
Provision for bad debts............................... 6,144 2,825 4,171 3,283
(Gain)/loss on sale of properties, net................ (7,956) (34) 67 10
Loss on sale of securities, net....................... -- -- (26) (7)
Minority interest in income of partnership............ 1,299 457 -- --
Equity in loss of affiliate........................... 3,169 1,123 -- --
Cash received in connection with the Merger........... -- 4,892 -- --
Change in investment in and accrued interest on loans
to ERT Development Corporation...................... (10,977) -- -- --
Changes in operating assets and liabilities, net:
Change in trade receivable............................ (12,947) (6,673) (6,161) (3,733)
Change in other receivables........................... (7,739) (13,257) 88 (355)
Change in other liabilities........................... (1,950) (18,076) 4,161 3,475
Change in sundry assets and liabilities............... (11,392) 3,152 (2,988) 605
--------- --------- --------- ---------
Net cash provided by operating activities......... 165,855 51,580 121,507 105,321
--------- --------- --------- ---------
Cash flows from investing activities:
Real estate acquisitions and building improvements...... (55,719) (34,959) (123,036) (282,607)
Proceeds from real estate sales, net.................... 28,350 329 (67) 3,862
Mortgage loans.......................................... (14,373) (26,948) -- --
Loans to ERT Development Corporation.................... (28,845) -- -- --
Repayments of mortgage notes receivable................. 5,713 479 9,229 491
Sales of marketable securities.......................... 84 -- 29 484
Purchases of marketable securities...................... (2) -- (1) (2)
Purchase of minority interest........................... (22,415) -- -- --
--------- --------- --------- ---------
Net cash used in investing activities............. (87,207) (61,099) (113,846) (277,772)
--------- --------- --------- ---------
Cash flows from financing activities:
Proceeds from issuing notes............................. 224,000 135,500 50,000 235,144
Principal payments of mortgages and notes payable....... (98,850) (113,427) (3,401) (32,362)
Dividends paid.......................................... (166,443) (28,934) (93,107) (83,825)
Minority interest distributions paid.................... (3,249) (910) -- --
Issuance of preferred stock............................. -- -- -- 72,775
Issuance of common stock/beneficial interest............ -- 4,673 21,842 18,931
Proceeds from dividend reinvestment plan................ 17,164 -- -- --
Repayment of credit facility............................ (458,417) -- -- --
Proceeds from credit facility........................... 446,637 -- -- --
Proceeds from exercise of stock options................. 1,335 -- -- --
Payments for the repurchase of common stock............. (43,942) -- -- --
Repayment of loans receivable for the purchase of common
stock................................................. -- 284 508 269
--------- --------- --------- ---------
Net cash (used in) provided by financing
activities...................................... (81,765) (2,814) (24,158) 210,932
--------- --------- --------- ---------
Net increase (decrease) in cash and cash
equivalents..................................... (3,117) (12,333) (16,497) 38,481
Cash and cash equivalents at beginning of year............ 13,951 26,284 42,781 4,300
--------- --------- --------- ---------
Cash and cash equivalents at end of year.................. $ 10,834 $ 13,951 $ 26,284 $ 42,781
========= ========= ========= =========
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
F-6
<PAGE> 35
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") which owns and operates residential and retail properties throughout
the United States.
Change in Fiscal Year
As discussed in Note 21 below, the Merger was treated as a purchase by the
Trust of assets and liabilities of Excel using the purchase method of accounting
in the accompanying consolidated financial statements. Because the Trust, as the
accounting acquirer, 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. The actual
results of operations for the five month period ended December 31, 1998 include
operations of Excel only from September 28, 1998 to 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 ("ERT"), a Delaware
corporation (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 plans to continue to operate so
that it meets the requirements for taxation as a REIT. Many of these
requirements, however, are highly technical and complex. If the Company were to
fail to meet these requirements, the Company would be subject to Federal income
tax. The Company may be subject to tax by certain states that do not recognize a
Real Estate Investment Trust as a legal entity. 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.
F-7
<PAGE> 36
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (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 35 and 40 years for buildings and 5 to 40 years for building
improvements. Tenant improvements are depreciated using the straight-line method
over the life of the lease. 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
undiscounted future cash flows without interest charges. 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
market 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 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 over the life of the loan and
charged to interest expense over the terms of the related debt agreements which
approximates the effective interest method.
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 once
the required sales level is achieved 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 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,
impairments of real estate, the recovery of mortgage notes and trade accounts
receivables and recovery of the Company's interest in ERT.
Reclassifications
Certain amounts on the Balance Sheet as of December 31, 1998 have been
reclassified to conform to the current period's presentation. Other receivables
includes amounts previously classified in stockholders' equity
F-8
<PAGE> 37
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
of $2 million as loans receivable for purchase of shares of beneficial interest.
Investment in and loans to ERT Development Corporation was classified formerly
as other assets and mortgages receivable. Other liabilities and stockholders'
equity as of December 31, 1998 has been revised to reflect the accrual of common
dividends of $35 million declared as of December 31, 1998.
Internal Software Costs
Any costs associated with modifying computer software for Year 2000
compliance are expensed as incurred.
2. RECENTLY ISSUED ACCOUNTING STANDARDS:
In June 1998, the Financial Accounting Standards Board issued SFAS No.
133, "Accounting for Derivative Instruments and Hedging Activities". SFAS
No. 133 establishes accounting and reporting standards for derivative
instruments, including certain derivative instruments imbedded in other
contracts and hedging activities. It requires that an entity recognize all
derivatives as either assets or liabilities in the statement of financial
position and measure those instruments at fair value as issued. SFAS No.
133 is effective January 1, 2000; however, SFAS 137, "Deferral of the
Effective Date of SFAS 133", extends the effective date for the Company to
January 2001. The Company does not anticipate that the adoption of SFAS 133
will have a material impact on its financial statements.
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, DECEMBER 31, JULY 31,
1999 1998 1998
------------ ------------ --------
<S> <C> <C> <C>
Amortized cost/basis.................... $ 976 $ 974 $ 974
Unrealized holding gains................ 214 726 813
------ ------ ------
Fair value.............................. $1,190 $1,700 $1,787
====== ====== ======
</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, 1999 and 1998 and July 31, 1998, respectively.
F-9
<PAGE> 38
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
4. MORTGAGES, NOTES AND OTHER RECEIVABLES:
The Company had the following mortgages and notes receivable, including
notes from affiliates (in thousands):
<TABLE>
<CAPTION>
DECEMBER 31, DECEMBER 31, JULY 31,
1999 1998 1998
------------ ------------ --------
<S> <C> <C> <C>
Notes from development companies, monthly interest
from 11% to 12% per annum. Maturity dates vary
depending upon the completion or sale of certain
properties....................................... $33,334 $25,169 $ --
Note from a development company, effective interest
rate of 10%, payable in Canadian dollars. Due May
2003............................................. 11,113 10,439 --
Purchase money first mortgages, interest at 7.2% to
10%. Due 2000 to 2001............................ 10,738 10,738 11,480
Leasehold mortgages, interest at 10% to 12%. Due
2008............................................. 2,650 2,460 2,186
Other.............................................. 1,307 1,259 212
------- ------- -------
Total.................................... $59,142 $50,065 $13,878
======= ======= =======
</TABLE>
The Company has notes receivable in the total amount of Canadian
$16,050,000 (US $11,113,000, $10,439,000 and $0 at December 31, 1999, 1998 and
July 31, 1998, respectively) 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 building in Toronto, Canada. The loan is
collateralized by the Canadian company's interest in the joint venture.
The Company established $43,646,000 in credit facilities to certain
developers. The total outstanding amounts on the credit facilities of
$33,334,000 carry interest at 11% to 12% and are payable on the earlier of the
sale of real estate or 2004.
At December 31, 1999 and 1998, $9,663,000 and $8,548,000 of the other
receivables on the accompanying balance sheet represents interest and dividends
receivable, most of which represents interest receivable related to notes from
development companies. The Company has assessed its ability to collect these
receivables and expects to realize interest and principal in accordance with the
terms of the notes.
5. EXCEL REALTY PARTNERS, L.P.:
In 1995, ERP, a consolidated entity, was formed to own and manage certain
real estate properties. A wholly owned subsidiary of 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), cash
and the assumption of mortgage debt. These units can convert to Company shares
at exchange ratios from 1.0 to 1.4 Company shares for each unit. At December 31,
1999 and 1998, there were approximately 3,256,000 and 3,231,000 limited partner
units outstanding of which the Company owned approximately 2,164,000 and
1,525,000 units. During 1999 the Company acquired an additional 634,000 units
for $22.4 million in cash.
6. ERT DEVELOPMENT CORPORATION:
In 1995, ERT was organized to finance, acquire, develop, hold and sell real
estate in the short-term for capital gains and/or to receive fee income. The
Company owns 100% of the outstanding preferred shares of ERT. An officer and
director of the Company owns all the common shares. The preferred shares are
entitled
F-10
<PAGE> 39
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
to receive 95% of dividends, if any. Cash requirements to facilitate ERT's
transactions have primarily been obtained through borrowings from the Company.
Investment in and loans to ERT are comprised of the following (in
thousands):
<TABLE>
<CAPTION>
DECEMBER 31, DECEMBER 31,
1999 1998
------------ ------------
<S> <C> <C>
Investment.................................................. $ 4,227 $ 7,332
Loans and accounts receivable............................... 129,790 100,058
Accrued interest............................................ 16,415 6,389
-------- --------
$150,432 $113,779
======== ========
</TABLE>
Interest and principal payments from ERT are primarily received upon the
completion of development projects. Interest receivable from ERT was $16,415,000
and $6,488,000 at December 31, 1999 and 1998, respectively. Interest income
recognized by the Company was $14,842,000 and $2,764,000 in 1999 and for the
five months ended December 31, 1998, respectively.
For the twelve months ended December 31, 1999 and the three months ended
December 31, 1998, the equity in the losses of ERT recorded by New Plan Excel
Realty Trust, Inc. was ($3.2 million) and ($1.1 million), respectively.
Summary unaudited financial information for ERT is as follows (in
thousands).
<TABLE>
<CAPTION>
DECEMBER 31, DECEMBER 31,
1999 1998
------------ ------------
<S> <C> <C>
CONDENSED BALANCE SHEETS
Notes receivable from developers, December 31, 1999 and 1998
interest at 10% to 12% and 10% to 20%, respectively....... $ 33,405 $ 61,108
Real estate and other assets, net of depreciation........... 212,238 53,353
-------- --------
Total Assets...................................... $245,643 $114,461
======== ========
Notes payable to New Plan Excel Realty Trust, Inc. ......... $128,903 $100,058
Accrued interest payable to New Plan Excel Realty Trust,
Inc. ..................................................... 16,415 6,389
Construction and land loans................................. 84,013 --
Other liabilities........................................... 12,085 682
-------- --------
Total liabilities................................. 241,416 107,129
Total stockholders' equity.................................. 4,227 7,332
-------- --------
Total liabilities and stockholders' equity........ $245,643 $114,461
======== ========
</TABLE>
<TABLE>
<CAPTION>
YEAR ENDED THREE MONTHS ENDED
DECEMBER 31, DECEMBER 31,
1999 1998
------------ ------------------
(SEE NOTE 21)
<S> <C> <C>
CONDENSED STATEMENTS OF INCOME
Revenues............................................... $ 20,107 $ 2,019
Interest expense to New Plan Excel Realty Trust,
Inc. ................................................ (14,842) (2,764)
Other expenses......................................... (8,434) (378)
-------- -------
Net loss..................................... $ (3,169) $(1,123)
======== =======
</TABLE>
At December 31, 1998, ERT's receivables include loans of approximately
$29.7 million made to a partnership in which ERT held a 38.5% interest under a
loan commitment related to a retail development
F-11
<PAGE> 40
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
project in Florida. During the fourth quarter of 1999, ERT acquired the
remaining 61.5% of Pointe Orlando (the joint venture partnership) and Pointe
Orlando was consolidated with ERT. Inter-company balances have been eliminated
in consolidation. Pointe Orlando has construction and land loans in the amount
of $93.0 million, of which $84.0 million was outstanding at December 31, 1999
and $35.0 million is guaranteed by the Company. In addition, ERT also has an
investment in a joint venture related to a retail development project in Texas.
The Company has guaranteed $68.0 million of the loan on the project, which has
an outstanding balance of $58.6 million and $32.8 million at December 31, 1999
and 1998, respectively.
7. MORTGAGES PAYABLE:
Mortgages are collateralized by real estate and an assignment of rents. As
of December 31, 1999, mortgages payable bear interest at rates ranging from 3.7%
to 10.75%, having a weighted average of 7.8% per annum and maturity dates from
2000 to 2029. The principal payments required to be made on mortgages payable
(excluding $9,921 of unamortized premium) are as follows (in thousands):
<TABLE>
<CAPTION>
YEAR
----
<S> <C>
2000..................................................... $ 59,027
2001..................................................... 41,605
2002..................................................... 33,349
2003..................................................... 19,120
2004..................................................... 22,300
Thereafter............................................... 156,321
--------
$331,722
========
</TABLE>
8. CREDIT FACILITIES:
The Company has two revolving credit facilities each of which provides up
to $122.5 million in uncollateralized advances from a group of banks. One
facility expires in November 2000 and bears an interest rate of 62.5 basis
points over LIBOR. As of December 31, 1999, the interest rate on this facility
was 7.125%. The other expires in November 2002 and bears an interest rate of
57.5 basis points over LIBOR. As of December 31, 1999, the interest rate on this
facility was 7.075%. At December 31, 1999, the Company had $188.7 million
outstanding under these facilities. The covenants of the credit facilities
include maintaining certain ratios such as liabilities to assets of less than
50% and maintaining a minimum interest coverage of 2 to 1.
F-12
<PAGE> 41
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
9. NOTES PAYABLE (IN THOUSANDS):
<TABLE>
<CAPTION>
FACE DECEMBER 31, DECEMBER 31, JULY 31,
DESCRIPTION AMOUNT DUE DATE 1999 1998 1998
----------- -------- -------- ------------ ------------ --------
<S> <C> <C> <C> <C> <C>
7.75% Senior notes, effective
interest rate 7.95%, net of
unamortized discount; December 31,
1999 and 1998 -- $806 and $957;
respectively; July 31, 1998 --
$1,019............................. $100,000 2005 $ 99,194 $ 99,043 $ 98,981
6.80% Senior unsecured notes,
effective interest rate 6.87%, net
of unamortized discount; December
31, 1999 and 1998 -- $136 and $184;
respectively; July 31,
1998 -- $192....................... 81,000 2002 80,864 80,816 80,808
6.875% Senior unsecured notes,
effective interest rate 6.982%..... 75,000 2004 75,000 75,000 --
7.97% unsecured notes................ 10,000 2026 10,000 10,000 10,000
Variable rate unsecured notes........ 49,000 -- -- 49,000 49,000
Variable rate unsecured notes........ 10,000 -- -- -- 10,000
5.95% unsecured notes................ 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 50,000
Variable rate unsecured notes........ 10,000 2000 10,000 10,376 --
7.4% unsecured notes................. 150,000 2009 149,565 -- --
7.5% unsecured notes................. 25,000 2029 24,113 -- --
7.33% unsecured notes................ 49,000 2003 49,000 -- --
-------- -------- --------
Total...................... $662,736 $489,235 $462,789
======== ======== ========
</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. The principal payments (excluding $2,264 of unamortized discount)
required to be made on notes payable are as follows (in thousands):
<TABLE>
<CAPTION>
YEAR
----
<S> <C>
2000..................................................... $ 50,000
2001..................................................... --
2002..................................................... 81,000
2003..................................................... 49,000
2004..................................................... 75,000
Thereafter............................................... 410,000
--------
$665,000
========
</TABLE>
F-13
<PAGE> 42
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:
Comprised of the following (in thousands):
<TABLE>
<CAPTION>
DECEMBER 31, DECEMBER 31, JULY 31,
1999 1998 1998
------------ ------------ --------
<S> <C> <C> <C>
Property and other taxes payable................... $13,385 $11,839 $10,523
Interest payable................................... 11,965 8,771 9,712
Accounts payable................................... 6,935 5,442 3,362
Dividend payable................................... 41,599 36,482 --
Accrued construction costs......................... 1,936 4,521 4,789
Deferred rent expense and rents received in
advance.......................................... 1,523 4,013 1,108
Amounts due seller of property..................... 1,365 1,823 1,952
Accrued professional and personnel costs........... 3,805 1,767 1,239
Acquisition costs.................................. 235 806 1,120
Other.............................................. 5,843 5,799 3,715
------- ------- -------
Total.................................... $88,591 $81,263 $37,520
======= ======= =======
</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 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, 1999 is
$3.2 million related to the clean-up of these asbestos minerals.
F-14
<PAGE> 43
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>
2000....................................................... $ 925
2001....................................................... 1,108
2002....................................................... 1,054
2003....................................................... 1,228
2004....................................................... 1,142
Thereafter................................................. 10,067
-------
$15,524
=======
</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 twelve months ended
December 31, 1999, the five months ended December 31, 1998 or the year ended
July 31, 1997. 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.
Options
The Company has two active stock option plans (the "Plans") and five option
plans under which grants are no longer made. Pursuant to the seven plans,
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. The
two active plans are: the 1993 Employee Plan (the "1993 Plan") and the 1994
Directors Plan (the "1994 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. The vesting schedule for the 1993 Plan is determined at the
time of grant by the option committee and the grants under the 1994 Plan vest
100% at the grant date. As of December 31, 1999, approximately 1.7 million
option shares are available for grant under the 1993 Plan. The
F-15
<PAGE> 44
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
total available for future grant is approximately 1.8 million option shares plus
an aggregate amount equal to 2% of the total number of issued and outstanding
shares of common stock as of December 31, 2000 and 2001. The total available for
future grant under the 1994 Plan is approximately 177,000 option shares. The
options outstanding at December 31, 1999, have exercise prices from $13.22 to
$25.25 and have a weighted average remaining contractual life of 4.6 years. The
total option shares under all seven plans exercisable at December 31, 1999 is
approximately 3.1 million.
Stock option and warrant activity are summarized as follows:
<TABLE>
<CAPTION>
WEIGHTED AVERAGE
EXERCISE PRICE
OPTIONS PER SHARE
---------- ----------------
<S> <C> <C>
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
Granted.................................................. 633,000 $19.92
Exercised or forfeited................................... (1,338,662) $17.27
----------
Outstanding at December 31, 1999......................... 5,240,228 $21.62
==========
</TABLE>
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 year ended December
31, 1999, net income would have been reduced by $1,160,000 from $149,513,000 to
$148,353,000 ($1.42 per share -- basic and $1.40 per share -- diluted). 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 ($1.44 per share -- basic and $1.43 per share -- diluted) to
$84,148,000 ($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).
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 December 31, 1999, July 31, 1998 and 1997,
respectively: dividend yield of 6.70%, 8.74%, 6.14%, and 6.12%, respectively;
expected volatility of 19.51%, 20.99%, 18.25%, and 19.30%, respectively;
risk-free interest rate of 4.93%, 5.57%, 5.87%, and 6.66%, respectively; and
expected life of 5.2 years, 4.6 years, 6.5 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, $1.47, $2.78, and $3.10, respectively.
F-16
<PAGE> 45
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
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. The additional shares will be
purchased in the open market.
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
YEAR ENDED FIVE MONTHS ENDED JULY 31,
DECEMBER 31, DECEMBER 31, --------------------
1999 1998 1998 1997
------------ ------------------ ------- ----------
<S> <C> <C> <C> <C>
BASIC EPS
Numerator:
Net income....................... $149,513 $55,805 $90,573 $77,037
Preferred dividends.............. (22,777) (6,914) (5,850) (461)
-------- ------- ------- -------
Net income available to common
shares........................ $126,736 $48,891 $84,723 $76,576
======== ======= ======= =======
Denominator:
Weighted average of common shares
outstanding................... 88,662 77,481 59,365 58,461
======== ======= ======= =======
Earnings Per Share:................ $ 1.43 $ 0.63 $ 1.43 $ 1.31
======== ======= ======= =======
DILUTED EPS
Numerator:
Net income....................... $149,513 $55,805 $90,573 $77,037
Preferred dividends.............. (22,777) (6,914) (5,850) (461)
Minority interest................ 1,299 457 -- --
-------- ------- ------- -------
Net income available to common
shares........................ $128,035 $49,348 $84,723 $76,576
======== ======= ======= =======
Denominator:
Weighted average of common shares
outstanding................... 88,662 77,481 59,365 58,461
Effect of diluted securities:
Common stock options and
warrants...................... 22 594 409 274
ERP third party units............ 1,756 1,321 -- --
-------- ------- ------- -------
90,440 79,396 59,774 58,735
======== ======= ======= =======
Earnings Per Share:................ $ 1.42 $ 0.62 $ 1.42 $ 1.30
======== ======= ======= =======
Preferred A shares are
anti-dilutive for earnings per
share calculations.
</TABLE>
15. STATEMENT OF CASH FLOWS -- SUPPLEMENTAL DISCLOSURE:
In the five months ended December 31, 1998 and the years ended December 31,
1999, July 31, 1998 and 1997, the Company acquired properties by assuming
mortgages payable of $4,730,000, $5,357,000, $51,900,000, and $17,500,000,
respectively. In addition, in connection with the purchase of a certain property
F-17
<PAGE> 46
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
in April 1999, the seller was issued partnership units in Excel Realty Partners,
L.P. valued at $770,000. Moreover, in connection with the purchase of
partnership units in Excel Realty Partners, L.P. in August 1999, $8.0 million in
excess of minority interest has been included in real estate. The amounts paid
for interest for the five months ended December 31, 1998 and the years ended
December 31, 1999, July 31, 1998 and 1997 were $33,061,000, $84,163,000,
$34,876,000, and $24,642,000, respectively. State and local income taxes paid
for the five months ended December 31, 1998 and the years ended December 31,
1999, July 31, 1998, and 1997 were $100,000, $352,000, $156,000, and $872,000,
respectively. The Company accrued $1,593,000 as of December 31, 1999 in order to
repurchase the Company's common stock.
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, 1999 and 1998, and July 31, 1998, respectively. The discount rate used in
calculating fair value is the sum of the current risk free rate and the risk
premium on the date of acquiring the instruments. 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 amounts reflected in
the Consolidated Balance Sheets at December 31, 1999 and 1998 and July 31, 1998
approximate 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 carrying
amounts (in thousands):
<TABLE>
<CAPTION>
DECEMBER 31, 1999 DECEMBER 31, 1998 JULY 31, 1998
------------------- ------------------- ------------------
CARRYING FAIR CARRYING FAIR CARRYING FAIR
AMOUNTS VALUE AMOUNTS VALUE AMOUNTS VALUE
-------- -------- -------- -------- -------- -------
<S> <C> <C> <C> <C> <C> <C>
Mortgages and notes receivable
including advances to ERT..... $188,045 $189,737 $150,123 $150,324 $13,878 $14,100
Mortgages payable............... 341,643 342,757 388,185 398,572 114,099 115,700
Notes payable................... 662,736 691,501 489,235 539,876 462,789 501,800
</TABLE>
17. FUTURE MINIMUM ANNUAL BASE RENTS:
Future minimum annual base rental revenue for the next five years for the
commercial real estate owned at December 31, 1999 and subject to noncancelable
operating leases is as follows (in thousands):
<TABLE>
<CAPTION>
YEAR
----
<S> <C>
2000..................................................... $266,676
2001..................................................... 239,438
2002..................................................... 210,712
2003..................................................... 187,305
2004..................................................... 162,767
Thereafter............................................... 52,978
</TABLE>
The above table assumes that all leases which expire are not renewed and
tenant renewal options are not exercised, therefore neither renewal rentals nor
rentals from replacement tenants are included. Future minimum annual base
rentals do not include contingent rentals, which may be received under certain
leases on the basis of percentage of reported tenants' sales volume, increases
in consumer price indices, common area maintenance charges and real estate tax
reimbursements. Contingent rentals for the five months ended December 31, 1998
and for the years ended December 31, 1999, July 31, 1998 and 1997 amounted to
approximately $15,549, $59,581, $34,421, and $28,933, respectively.
F-18
<PAGE> 47
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
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 makes a matching contribution to the Savings Plan to a
maximum of 3% of the employee's eligible compensation. For the five months ended
December 31, 1998 and the years ended December 31, 1999, July 31, 1998 and 1997,
the Company's expense for the Savings Plan was $205,000, $607,000, $317,000 and
$250,000, respectively.
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>
YEAR ENDED DECEMBER 31, 1999:
First quarter................................ $111,166 $39,669 $0.38 $0.38
Second quarter............................... 109,421 31,788(1) 0.29(1) 0.29(1)
Third quarter................................ 108,167 34,688 0.33 0.32
Fourth quarter............................... 109,273 43,368 0.43 0.43
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>
- ---------------
(1) Includes a non-recurring charge of $8.5 million
20. SEGMENT INFORMATION:
The Company's two reportable business segments are retail and residential
rental properties. At December 31, 1999, the retail segment consists of 303
shopping centers (included in this amount are 7 office and other properties) and
the residential segment consists of 53 garden apartment complexes. Other
includes interest income from ERT and development projects and other income.
Also included is general and
F-19
<PAGE> 48
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
administrative expense, equity pick-up of ERT, interest expense, gains on sale
of properties and a non-recurring charge. Selected financial information for
each segment is as follows (in thousands):
<TABLE>
<CAPTION>
RETAIL RESIDENTIAL OTHER TOTAL
---------- ----------- -------- ----------
<S> <C> <C> <C> <C>
FOR YEAR ENDED DECEMBER 31, 1999
Revenue......................................... $ 337,004 $ 77,477 $ 23,546 $ 438,027
Operating expenses and minority interest........ 92,021 43,664 16,461 152,146
Interest expense................................ 81,412 81,412
Depreciation.................................... 54,199 8,713 62,912
Gain/(loss) on sale of securities/properties.... 7,956 7,956
---------- -------- -------- ----------
Net income/(loss)............................... $ 190,784 $ 25,100 $(66,371) $ 149,513
========== ======== ======== ==========
Real estate assets, net......................... $2,318,073 $346,298 $2,664,371
========== ======== ==========
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
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/(loss)............................... $ 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 $ 3,951 $ 250,259
Operating expenses and minority interest........ 52,184 36,216 2,808 91,208
Interest expense................................ 36,815 36,815
Depreciation.................................... 24,077 7,545 31,622
Gain/(loss) on sale of securities/properties.... (41) (41)
---------- -------- -------- ----------
Net income/(loss)............................... $ 100,721 $ 25,565 $(35,713) $ 90,573
========== ======== ======== ==========
Real estate assets, net......................... $ 977,617 $338,143 $1,315,760
========== ======== ==========
FOR YEAR ENDED JULY 31, 1997
Revenue......................................... $ 146,762 $ 55,331 $ 4,728 $ 206,821
Operating expenses and minority interest........ 45,163 29,153 2,203 76,519
Interest expense................................ 28,256 28,256
Depreciation.................................... 19,464 5,542 25,006
Gain/(loss) on sale of securities/properties.... (3) (3)
---------- -------- -------- ----------
Net income/(loss)............................... $ 82,135 $ 20,636 $(25,734) $ 77,037
========== ======== ======== ==========
Real estate assets, net......................... $ 875,027 $296,882 $1,171,909
========== ======== ==========
</TABLE>
21. MERGER:
On September 28, 1998, New Plan Realty Trust ("Trust") and Excel Realty
Trust ("Excel") merged. 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 share, of the Company, and each 7.8% Series A
Cumulative Step-Up Premium Rate Preferred Share, par value $.01 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,
F-20
<PAGE> 49
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
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 accounted for 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's common stock outstanding immediately
following the Merger, and the members of the Board of Trustees of the Trust
immediately prior to the Merger comprised of nine of 15 members of the Board of
Directors of the Company immediately following the Merger. As a result of the
Merger, the Trust became a wholly owned subsidiary of the Company.
The accompanying consolidated financial statements reflect the results of
the Trust prior to the Merger and combined the results from September 28, 1998
to December 31, 1998. All information regarding per share information prior to
the Merger has 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. The total consideration for the fair value of the assets and liabilities
acquired are set forth below:
Consideration
<TABLE>
<CAPTION>
SHARES VALUE TOTAL
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 (depositary shares)..... 6,300,000 24.90 156,870,000
------------
$899,118,300
============
</TABLE>
Assets and Liabilities Acquired
<TABLE>
<S> <C>
Real estate................................................. $1,332,715,400
Other assets................................................ 136,864,400
Mortgages and notes payable................................. (501,400,600)
Other liabilities........................................... (27,957,000)
Minority interest........................................... (41,103,900)
--------------
Allocation of purchase price................................ $ 899,118,300
==============
</TABLE>
22. NON-RECURRING CHARGE:
In April 1999, seven executives, all formerly of Excel Realty Trust, Inc.,
resigned. These resignations occurred under the terms of Resignation and Release
Agreements between the executives and New Plan Excel Realty Trust, Inc. They
provided for payment by the Company of severance benefits, the cancellation of
certain "in the money" vested stock options in exchange for the payment of the
value of the stock options and the repurchase of Company stock owned by these
executives. As a result, $8.5 million has been recorded as a non-recurring
charge in 1999. This charge comprises $1.7 million in severance payments, $6.0
million in stock compensation expense and $0.8 million of other costs.
F-21
<PAGE> 50
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
23. SUBSEQUENT EVENTS:
In February 2000, the Company expects to announce the appointment of Glenn
J. Rufrano as Chief Executive Officer and President of the Company. Mr. Rufrano
also will be nominated to serve on the Company's Board of Directors and be
appointed to the Company's Investment Committee. Mr. Rufrano succeeds Arnold
Laubich who will retire as both CEO and President.
In connection with Mr. Laubich's retirement, the Company expects to record
a one-time charge to net income of $0.03 per share.
In connection with his employment, Mr. Rufrano will be granted options to
purchase 700,000 shares of the Company's common stock, at an exercise price
equivalent to the market price on the grant date. A total of 500,000 of these
options vest ratably over five years, commencing on the first anniversary, while
the remaining 200,000 vest upon the eighth anniversary of the grant, subject to
acceleration at the end of the fourth and fifth years in the event certain
performance objectives are achieved. Mr. Rufrano will also be granted options to
purchase an additional 515,121 shares of the Company's common stock at an
exercise price equivalent to the market price on the grant price, all of which
options vest immediately upon Mr. Rufrano's employment with the Company. Mr.
Rufrano expects to exercise these options. In connection with the exercise of
these options, the Company expects to loan Mr. Rufrano $6.2 million. The loan
will accrue interest at 8% per annum and will mature during February 2005 (or
earlier under certain circumstances). A portion of the loan will be
collateralized by a pledge of the shares Mr. Rufrano expects to acquire upon
exercise of the option.
In March 2000, the Company expects to establish a term loan facility with
Fleet National Bank, pursuant to which the Company may draw down up to $75
million through April 27, 2000. Any loans drawn under this facility will mature
on March 5, 2001 and will accrue interest at LIBOR plus 80 basis points (based
on the Company's current credit rating). The term loan agreement prepared in
connection with the facility will contain covenants substantially similar to
those included in the Company's two revolving credit facilities with The Bank of
New York.
F-22
<PAGE> 51
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE II -- VALUATION AND QUALIFYING ACCOUNTS
(IN THOUSANDS)
<TABLE>
<CAPTION>
ADDITIONS DEDUCTIONS
---------- -----------
BALANCES AT CHARGED TO ACCOUNTS BALANCE AT
BEGINNING BAD DEBT RECEIVABLE END OF
OF PERIOD EXPENSE WRITTEN OFF PERIOD
----------- ---------- ----------- ----------
<S> <C> <C> <C> <C>
Allowance for doubtful accounts:
Year ended December 31, 1999.................... $11,636 $ 6,144 $3,883 $13,897
======= ======== ====== =======
Five months ended December 31, 1998............. $ 7,926 $ 4,368(1) $ 658 $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
======= ======== ====== =======
</TABLE>
- ---------------
(1) $1,543 of this amount was assumed as part of the Merger.
F-23
<PAGE> 52
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III -- REAL ESTATE AND ACCUMULATED DEPRECIATION
DECEMBER 31, 1999
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D
- ----------------------------------------- ------------- ------------------------ ----------------
COST CAPITALIZED
SUBSEQUENT TO
INITIAL COST TO COMPANY ACQUISITION
------------------------ ----------------
BUILDING &
DESCRIPTION ENCUMBERANCES LAND IMPROVEMENTS IMPROVEMENTS
- ----------- ------------- --------- ------------ ----------------
<S> <C> <C> <C> <C>
RESIDENTIAL
Breckenridge Apartments
Birmingham, AL.......................... 604,487 2,411,462 460,142
Courts At Wildwood
Birmingham, AL.......................... 1,119,320 4,477,301 432,084
Devonshire Place
Birmingham, AL.......................... 1,245,728 4,982,914 1,368,903
The Club Apartments
Birmingham, AL.......................... 6,145,000 1,709,558 6,838,233 1,137,935
Hillcrest Apartments
Mobile, AL.............................. 1,252,632 251,734 3,325,604 82,716
Knollwood Apartments
Mobile, AL.............................. 6,026,518 4,352,001 16,926,403 214,938
Maison de Ville Apts
Mobile, AL.............................. 4,625,000 1,971,014 7,897,056 418,102
Maison Imperial Apts
Mobile, AL.............................. 1,750,000 672,368 2,702,471 137,081
Plantation Apartments
Mobile, AL.............................. 1,000,000 410,866 1,653,465 79,638
Mayfair Apartments
Dover, DE............................... 240,000 962,217 511,139
Rodney Apartments
Dover, DE............................... 769,188 1,612,614 1,313,333
Charter Pointe Apartments
Altamonte Springs, FL................... 5,153,395 1,473,146 9,049,327 196,973
Lake Park Apartments
Lake Park, FL........................... 833,000 1,822,039 2,738,737
Cambridge Apartments
Athens, GA.............................. 878,593 3,514,373 120,704
<CAPTION>
COLUMN A COLUMN E COLUMN F COLUMN G COLUMN H
- ----------------------------------------- ------------------------------------- ------------ ------------ --------
GROSS AMOUNT AT WHICH CARRIED AT
THE CLOSE OF THE PERIOD
-------------------------------------
BUILDING & ACCUMULATED DATE OF DATE
DESCRIPTION LAND IMPROVEMENTS TOTAL DEPRECIATION CONSTRUCTION ACQUIRED
- ----------- --------- ------------ ---------- ------------ ------------ --------
<S> <C> <C> <C> <C> <C> <C>
RESIDENTIAL
Breckenridge Apartments
Birmingham, AL.......................... 604,487 2,871,604 3,476,091 565,957 1979 Feb 92
Courts At Wildwood
Birmingham, AL.......................... 1,119,320 4,909,385 6,028,705 858,937 1969 Jul 93
Devonshire Place
Birmingham, AL.......................... 1,245,728 6,351,817 7,597,545 1,306,764 1971 Feb 92
The Club Apartments
Birmingham, AL.......................... 1,709,558 7,976,168 9,685,726 905,642 1969-1974 May 95
Hillcrest Apartments
Mobile, AL.............................. 251,734 3,408,320 3,660,054 217,541 1977 Jun 97
Knollwood Apartments
Mobile, AL.............................. 4,352,001 17,141,341 21,493,342 1,115,101 1978-1982 May 97
Maison de Ville Apts
Mobile, AL.............................. 1,971,014 8,315,158 10,286,172 720,232 1963,71-73 Jul 96
Maison Imperial Apts
Mobile, AL.............................. 672,368 2,839,552 3,511,920 247,790 1969-73 Jul 96
Plantation Apartments
Mobile, AL.............................. 410,866 1,733,103 2,143,969 156,544 1977 Jul 96
Mayfair Apartments
Dover, DE............................... 240,000 1,473,356 1,713,356 805,402 1971 Jan 81
Rodney Apartments
Dover, DE............................... 769,188 2,925,947 3,695,135 2,448,384 1963-1965 Jan 69
Charter Pointe Apartments
Altamonte Springs, FL................... 1,473,146 9,246,300 10,719,446 404,862 1973 Apr 98
Lake Park Apartments
Lake Park, FL........................... 833,000 4,560,776 5,393,776 2,633,997 1965 Feb 76
Cambridge Apartments
Athens, GA.............................. 878,593 3,635,077 4,513,670 345,378 1972,1982 May 96
<CAPTION>
COLUMN A COLUMN I
- ----------------------------------------- ----------------
LIFE ON WHICH
DEPRECIATED
IN LATEST
DESCRIPTION INCOME STATEMENT
- ----------- ----------------
<S> <C>
RESIDENTIAL
Breckenridge Apartments
Birmingham, AL.......................... 40 Years
Courts At Wildwood
Birmingham, AL.......................... 40 Years
Devonshire Place
Birmingham, AL.......................... 40 Years
The Club Apartments
Birmingham, AL.......................... 40 Years
Hillcrest Apartments
Mobile, AL.............................. 40 Years
Knollwood Apartments
Mobile, AL.............................. 40 Years
Maison de Ville Apts
Mobile, AL.............................. 40 Years
Maison Imperial Apts
Mobile, AL.............................. 40 Years
Plantation Apartments
Mobile, AL.............................. 40 Years
Mayfair Apartments
Dover, DE............................... 40 Years
Rodney Apartments
Dover, DE............................... 40 Years
Charter Pointe Apartments
Altamonte Springs, FL................... 40 Years
Lake Park Apartments
Lake Park, FL........................... 40 Years
Cambridge Apartments
Athens, GA.............................. 40 Years
</TABLE>
F-24
<PAGE> 53
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III -- REAL ESTATE AND ACCUMULATED DEPRECIATION
DECEMBER 31, 1999
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D
- ----------------------------------------- ------------- ------------------------ ----------------
COST CAPITALIZED
SUBSEQUENT TO
INITIAL COST TO COMPANY ACQUISITION
------------------------ ----------------
BUILDING &
DESCRIPTION ENCUMBERANCES LAND IMPROVEMENTS IMPROVEMENTS
- ----------- ------------- --------- ------------ ----------------
<S> <C> <C> <C> <C>
RESIDENTIAL
Tara Apartments
Athens, GA.............................. 3,269,724 1,192,545 4,792,179 222,642
Regency Club Apartments
Evansville, IN.......................... 1,179,910 4,719,639 260,553
Forest Hills Apartments
Indianapolis, IN........................ 714,761 8,197,499 243,069
Hawthorne Heights Apts
Indianapolis, IN........................ 1,669,304 6,698,215 319,026
Charlestown @ Douglass Hills
Louisville, KY.......................... 1,306,230 5,231,914 997,045
La Fontenay Apartments
Louisville, KY.......................... 1,176,550 4,706,200 1,646,905
Poplar Level Apartments
Louisville, KY.......................... 284,793 1,139,174 131,765
Riverchase Apartments
Newport, KY............................. 807,302 3,229,206 203,735
Forestwood Apartments
Baton Rouge, LA......................... 2,070,811 8,283,242 364,014
Sherwood Acres Apartments
Baton Rouge, LA......................... 3,906,900 15,627,597 224,674
Willow Bend Lake Apartments
Baton Rouge, LA......................... 2,930,484 11,721,937 195,475
Deerhorn Village Apartments
Kansas City, MO......................... 1,292,778 5,171,112 742,546
Cardinal Woods Apartments
Cary, NC................................ 1,435,783 5,726,132 240,340
Polo Run Apartments
Raleigh, NC............................. 4,502,052 4,331,230 8,413,395 363,760
<CAPTION>
COLUMN A COLUMN E COLUMN F COLUMN G COLUMN H
- ----------------------------------------- ------------------------------------- ------------ ------------ --------
GROSS AMOUNT AT WHICH CARRIED AT
THE CLOSE OF THE PERIOD
-------------------------------------
BUILDING & ACCUMULATED DATE OF DATE
DESCRIPTION LAND IMPROVEMENTS TOTAL DEPRECIATION CONSTRUCTION ACQUIRED
- ----------- --------- ------------ ---------- ------------ ------------ --------
<S> <C> <C> <C> <C> <C> <C>
RESIDENTIAL
Tara Apartments
Athens, GA.............................. 1,192,545 5,014,821 6,207,366 464,471 1970 Jun 96
Regency Club Apartments
Evansville, IN.......................... 1,179,910 4,980,192 6,160,102 414,940 1980 Sep 96
Forest Hills Apartments
Indianapolis, IN........................ 714,761 8,440,568 9,155,329 475,796 1974 Oct 97
Hawthorne Heights Apts
Indianapolis, IN........................ 1,669,304 7,017,241 8,686,545 643,026 1965 Jun 96
Charlestown @ Douglass Hills
Louisville, KY.......................... 1,306,230 6,228,959 7,535,189 951,569 1974 Sep 93
La Fontenay Apartments
Louisville, KY.......................... 1,176,550 6,353,105 7,529,655 1,146,810 1970 Jul 92
Poplar Level Apartments
Louisville, KY.......................... 284,793 1,270,939 1,555,732 308,746 1974 Jan 91
Riverchase Apartments
Newport, KY............................. 807,302 3,432,941 4,240,243 287,148 1968 Aug 96
Forestwood Apartments
Baton Rouge, LA......................... 2,070,811 8,647,256 10,718,067 668,763 1985 Oct 96
Sherwood Acres Apartments
Baton Rouge, LA......................... 3,906,900 15,852,271 19,759,171 1,259,095 1978-1979 Oct 96
Willow Bend Lake Apartments
Baton Rouge, LA......................... 2,930,484 11,917,412 14,847,896 917,596 1986 Oct 96
Deerhorn Village Apartments
Kansas City, MO......................... 1,292,778 5,913,658 7,206,436 684,471 1974 Jul 95
Cardinal Woods Apartments
Cary, NC................................ 1,435,783 5,966,472 7,402,255 336,415 1978 Aug 97
Polo Run Apartments
Raleigh, NC............................. 4,331,230 8,777,155 13,108,385 279,462 1971 Aug 98
<CAPTION>
COLUMN A COLUMN I
- ----------------------------------------- ----------------
LIFE ON WHICH
DEPRECIATED
IN LATEST
DESCRIPTION INCOME STATEMENT
- ----------- ----------------
<S> <C>
RESIDENTIAL
Tara Apartments
Athens, GA.............................. 40 Years
Regency Club Apartments
Evansville, IN.......................... 40 Years
Forest Hills Apartments
Indianapolis, IN........................ 40 Years
Hawthorne Heights Apts
Indianapolis, IN........................ 40 Years
Charlestown @ Douglass Hills
Louisville, KY.......................... 40 Years
La Fontenay Apartments
Louisville, KY.......................... 40 Years
Poplar Level Apartments
Louisville, KY.......................... 40 Years
Riverchase Apartments
Newport, KY............................. 40 Years
Forestwood Apartments
Baton Rouge, LA......................... 40 Years
Sherwood Acres Apartments
Baton Rouge, LA......................... 40 Years
Willow Bend Lake Apartments
Baton Rouge, LA......................... 40 Years
Deerhorn Village Apartments
Kansas City, MO......................... 40 Years
Cardinal Woods Apartments
Cary, NC................................ 40 Years
Polo Run Apartments
Raleigh, NC............................. 40 Years
</TABLE>
F-25
<PAGE> 54
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III -- REAL ESTATE AND ACCUMULATED DEPRECIATION
DECEMBER 31, 1999
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D
- ----------------------------------------- ------------- ------------------------ ----------------
COST CAPITALIZED
SUBSEQUENT TO
INITIAL COST TO COMPANY ACQUISITION
------------------------ ----------------
BUILDING &
DESCRIPTION ENCUMBERANCES LAND IMPROVEMENTS IMPROVEMENTS
- ----------- ------------- --------- ------------ ----------------
<S> <C> <C> <C> <C>
RESIDENTIAL
Meadow East Apartments
Potsdam, NY............................. 86,407 1,467,282 526,179
Mohawk Garden Apartments
Rome, NY................................ 163,235 1,135,660 1,716,786
Northgate Apartments
Columbus, OH............................ 7,215,717 1,513,498 9,297,201 1,661,245
Spring Creek Apartments
Columbus, OH............................ 1,455,271 9,082,352 107,576
Arlington Village Apartments
Fairborn, OH............................ 1,065,284 4,269,138 213,382
Chesterfield Apartments
Maumee, OH.............................. 179,109 1,449,156 438,665
Eastgreen on the Commons Apartments
Reynoldsburg, OH........................ 5,783,267 1,142,888 7,648,557 1,589,445
Goldcrest Apartments
Sharonville, OH......................... 1,133,355 4,533,416 154,691
Cambridge Park Apts
Union Twp-Cinn, OH...................... 1,223,582 4,894,326 192,078
Governour's Place Apartments
Harrisburg, PA.......................... 626,807 2,507,226 427,225
Forest Hill Apartments -- II
Columbia, SC............................ 1,204,688 3,257,121 153,510
Harbour Landing Apartments
Columbia, SC............................ 1,141,954 4,567,815 295,446
Sedgefield Apartments
Florence, SC............................ 1,550,734 6,211,936 439,725
Turtle Creek Apartments
Greenville, SC.......................... 984,565 3,954,261 549,700
<CAPTION>
COLUMN A COLUMN E COLUMN F COLUMN G COLUMN H
- ----------------------------------------- ------------------------------------- ------------ ------------ --------
GROSS AMOUNT AT WHICH CARRIED AT
THE CLOSE OF THE PERIOD
-------------------------------------
BUILDING & ACCUMULATED DATE OF DATE
DESCRIPTION LAND IMPROVEMENTS TOTAL DEPRECIATION CONSTRUCTION ACQUIRED
- ----------- --------- ------------ ---------- ------------ ------------ --------
<S> <C> <C> <C> <C> <C> <C>
RESIDENTIAL
Meadow East Apartments
Potsdam, NY............................. 86,407 1,993,461 2,079,868 820,779 1964-1971 Sep 83
Mohawk Garden Apartments
Rome, NY................................ 163,235 2,852,446 3,015,681 1,380,603 1947 Nov 85
Northgate Apartments
Columbus, OH............................ 1,513,498 10,958,446 12,471,944 374,638 1970 Jul 98
Spring Creek Apartments
Columbus, OH............................ 1,455,271 9,189,928 10,645,199 574,976 1985 Jun 97
Arlington Village Apartments
Fairborn, OH............................ 1,065,284 4,482,520 5,547,804 633,173 1966 Aug 94
Chesterfield Apartments
Maumee, OH.............................. 179,109 1,887,821 2,066,930 417,079 1979-1984 Feb 91
Eastgreen on the Commons Apartments
Reynoldsburg, OH........................ 1,142,888 9,238,002 10,380,890 393,867 1971,1982 Jan 98
Goldcrest Apartments
Sharonville, OH......................... 1,133,355 4,688,107 5,821,462 394,271 1968 Aug 96
Cambridge Park Apts
Union Twp-Cinn, OH...................... 1,223,582 5,086,404 6,309,986 427,313 1973 Aug 96
Governour's Place Apartments
Harrisburg, PA.......................... 626,807 2,934,451 3,561,258 329,234 1974 Apr 95
Forest Hill Apartments -- II
Columbia, SC............................ 1,204,688 3,410,631 4,615,319 64,996 1968 Jan 99
Harbour Landing Apartments
Columbia, SC............................ 1,141,954 4,863,261 6,005,215 548,466 1974 Sep 95
Sedgefield Apartments
Florence, SC............................ 1,550,734 6,651,661 8,202,395 938,911 1972,74,79 Jul 94
Turtle Creek Apartments
Greenville, SC.......................... 984,565 4,503,961 5,488,526 369,724 1976 Jun 96
<CAPTION>
COLUMN A COLUMN I
- ----------------------------------------- ----------------
LIFE ON WHICH
DEPRECIATED
IN LATEST
DESCRIPTION INCOME STATEMENT
- ----------- ----------------
<S> <C>
RESIDENTIAL
Meadow East Apartments
Potsdam, NY............................. 40 Years
Mohawk Garden Apartments
Rome, NY................................ 40 Years
Northgate Apartments
Columbus, OH............................ 40 Years
Spring Creek Apartments
Columbus, OH............................ 40 Years
Arlington Village Apartments
Fairborn, OH............................ 40 Years
Chesterfield Apartments
Maumee, OH.............................. 40 Years
Eastgreen on the Commons Apartments
Reynoldsburg, OH........................ 40 Years
Goldcrest Apartments
Sharonville, OH......................... 40 Years
Cambridge Park Apts
Union Twp-Cinn, OH...................... 40 Years
Governour's Place Apartments
Harrisburg, PA.......................... 40 Years
Forest Hill Apartments -- II
Columbia, SC............................ 40 Years
Harbour Landing Apartments
Columbia, SC............................ 40 Years
Sedgefield Apartments
Florence, SC............................ 40 Years
Turtle Creek Apartments
Greenville, SC.......................... 40 Years
</TABLE>
F-26
<PAGE> 55
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III -- REAL ESTATE AND ACCUMULATED DEPRECIATION
DECEMBER 31, 1999
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D
- ----------------------------------------- ------------- ------------------------ ----------------
COST CAPITALIZED
SUBSEQUENT TO
INITIAL COST TO COMPANY ACQUISITION
------------------------ ----------------
BUILDING &
DESCRIPTION ENCUMBERANCES LAND IMPROVEMENTS IMPROVEMENTS
- ----------- ------------- --------- ------------ ----------------
<S> <C> <C> <C> <C>
RESIDENTIAL
Hickory Lake Apartments
Antioch, TN............................. 1,369,251 5,483,004 2,012,113
Courts @ Waterford Place
Chattanooga, TN......................... 9,600,000 2,745,404 10,982,373 292,073
Ashford Place Apartments
Clarksville, TN......................... 1,150,270 4,611,080 2,475,138
Cedar Village Apartments
Clarksville, TN......................... 806,355 3,230,420 198,991
Paddock Place Apartments
Clarksville, TN......................... 1,358,400 5,437,602 137,681
The Pines Apartments
Clarksville, TN......................... 918,769 3,679,074 177,930
Landmark Estates Apartments
East Ridge, TN.......................... 476,624 1,906,284 210,033
Miller Crest Apartments
Johnson City, TN........................ 747,155 3,025,619 188,987
Cedar Bluff Apartments
Knoxville, TN........................... 1,273,023 5,269,532 229,467
Country Place Apartments
Nashville, TN........................... 1,896,828 7,587,313 207,897
Woodbridge Apartmentse
Nashville, TN........................... 1,594,214 6,376,854 193,119
<CAPTION>
COLUMN A COLUMN E COLUMN F COLUMN G COLUMN H
- ----------------------------------------- ------------------------------------- ------------ ------------ --------
GROSS AMOUNT AT WHICH CARRIED AT
THE CLOSE OF THE PERIOD
-------------------------------------
BUILDING & ACCUMULATED DATE OF DATE
DESCRIPTION LAND IMPROVEMENTS TOTAL DEPRECIATION CONSTRUCTION ACQUIRED
- ----------- --------- ------------ ---------- ------------ ------------ --------
<S> <C> <C> <C> <C> <C> <C>
RESIDENTIAL
Hickory Lake Apartments
Antioch, TN............................. 1,369,251 7,495,117 8,864,368 1,066,482 1974 Dec 93
Courts @ Waterford Place
Chattanooga, TN......................... 2,745,404 11,274,446 14,019,850 883,939 1988,89 Dec 96
Ashford Place Apartments
Clarksville, TN......................... 1,150,270 7,086,218 8,236,488 908,176 1972,1974 Oct 93
Cedar Village Apartments
Clarksville, TN......................... 806,355 3,429,411 4,235,766 491,518 1982 Jul 94
Paddock Place Apartments
Clarksville, TN......................... 1,358,400 5,575,283 6,933,683 774,967 1989 Jul 94
The Pines Apartments
Clarksville, TN......................... 918,769 3,857,004 4,775,773 548,238 1986 Jul 94
Landmark Estates Apartments
East Ridge, TN.......................... 476,624 2,116,317 2,592,941 190,219 1971 Aug 96
Miller Crest Apartments
Johnson City, TN........................ 747,155 3,214,606 3,961,761 294,069 1973 Jun 96
Cedar Bluff Apartments
Knoxville, TN........................... 1,273,023 5,498,999 6,772,022 506,437 1980 May 96
Country Place Apartments
Nashville, TN........................... 1,896,828 7,795,210 9,692,038 745,248 1979 Apr 96
Woodbridge Apartmentse
Nashville, TN........................... 1,594,214 6,569,973 8,164,187 546,295 1980 Aug 96
<CAPTION>
COLUMN A COLUMN I
- ----------------------------------------- ----------------
LIFE ON WHICH
DEPRECIATED
IN LATEST
DESCRIPTION INCOME STATEMENT
- ----------- ----------------
<S> <C>
RESIDENTIAL
Hickory Lake Apartments
Antioch, TN............................. 40 Years
Courts @ Waterford Place
Chattanooga, TN......................... 40 Years
Ashford Place Apartments
Clarksville, TN......................... 40 Years
Cedar Village Apartments
Clarksville, TN......................... 40 Years
Paddock Place Apartments
Clarksville, TN......................... 40 Years
The Pines Apartments
Clarksville, TN......................... 40 Years
Landmark Estates Apartments
East Ridge, TN.......................... 40 Years
Miller Crest Apartments
Johnson City, TN........................ 40 Years
Cedar Bluff Apartments
Knoxville, TN........................... 40 Years
Country Place Apartments
Nashville, TN........................... 40 Years
Woodbridge Apartmentse
Nashville, TN........................... 40 Years
</TABLE>
F-27
<PAGE> 56
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III -- REAL ESTATE AND ACCUMULATED DEPRECIATION
DECEMBER 31, 1999
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D
- ----------------------------------------- ------------- ------------------------ ----------------
COST CAPITALIZED
SUBSEQUENT TO
INITIAL COST TO COMPANY ACQUISITION
------------------------ ----------------
BUILDING &
DESCRIPTION ENCUMBERANCES LAND IMPROVEMENTS IMPROVEMENTS
- ----------- ------------- --------- ------------ ----------------
<S> <C> <C> <C> <C>
RETAIL
Cloverdale Village
Florence, AL............................ 634,152 2,536,606 7,304
Riverview Plaza
Gadsden, AL............................. 5,722,800 2,072,169 8,286,847
Grants Mill Station
Irondale, AL............................ 7,960,394 2,888,819 11,555,308 103,935
Jitney/Sak n Save
Muscle Shoals, AL....................... 429,999 1,720,097
Kroger/Handy TV
Muscle Shoals, AL....................... 102,822 411,047
Bruno's/Food World
Scottsboro, AL.......................... 369,815 1,479,269
Payton Park
Sylacauga, AL........................... 3,584,697 14,339,021
Kmart #6734/Country Mrkt
Pine Bluff, AR.......................... 490,287 1,961,357
Harvest Foods #274
Sherwood, AR............................ 409,418 1,637,511
Glendale Galleria
Glendale, AZ............................ 2,869,504 11,478,248 23,023
Abco #693
Mesa, AZ................................ 243,862 975,664
KMART Plaza-Mesa
Mesa, AZ................................ 1,147,194 4,588,778
Southern Village Mesa
Mesa, AZ................................ 1,712,353 6,849,509 31,291
Sun Valley Plaza
Mesa, AZ................................ 1,188,094 4,752,619 4,876
<CAPTION>
COLUMN A COLUMN E COLUMN F COLUMN G COLUMN H
- ----------------------------------------- ------------------------------------- ------------ ------------ --------
GROSS AMOUNT AT WHICH CARRIED AT
THE CLOSE OF THE PERIOD
-------------------------------------
BUILDING & ACCUMULATED DATE OF DATE
DESCRIPTION LAND IMPROVEMENTS TOTAL DEPRECIATION CONSTRUCTION ACQUIRED
- ----------- --------- ------------ ---------- ------------ ------------ --------
<S> <C> <C> <C> <C> <C> <C>
RETAIL
Cloverdale Village
Florence, AL............................ 634,152 2,543,910 3,178,062 332,089 1986 Oct 94
Riverview Plaza
Gadsden, AL............................. 2,072,169 8,286,847 10,359,016 244,391 1995 Oct 95
Grants Mill Station
Irondale, AL............................ 2,888,819 11,659,243 14,548,062 350,127 1991 Jul 98
Jitney/Sak n Save
Muscle Shoals, AL....................... 429,999 1,720,097 2,150,096 52,804 1982 Aug 93
Kroger/Handy TV
Muscle Shoals, AL....................... 102,822 411,047 513,869 12,620 1982 Aug 93
Bruno's/Food World
Scottsboro, AL.......................... 369,815 1,479,269 1,849,084 45,411 1981 Aug 93
Payton Park
Sylacauga, AL........................... 3,584,697 14,339,021 17,923,718 432,300 1995 Jul 98
Kmart #6734/Country Mrkt
Pine Bluff, AR.......................... 490,287 1,961,357 2,451,644 60,210 1981 Aug 93
Harvest Foods #274
Sherwood, AR............................ 409,418 1,637,511 2,046,929 50,270 1981 Aug 93
Glendale Galleria
Glendale, AZ............................ 2,869,504 11,501,271 14,370,775 354,519 1989-91 Aug 97
Abco #693
Mesa, AZ................................ 243,862 975,664 1,219,526 29,950 1982 Aug 93
KMART Plaza-Mesa
Mesa, AZ................................ 1,147,194 4,588,778 5,735,972 144,024 1970 Dec 90
Southern Village Mesa
Mesa, AZ................................ 1,712,353 6,880,800 8,593,153 212,333 1986,97 Aug 97
Sun Valley Plaza
Mesa, AZ................................ 1,188,094 4,757,495 5,945,589 144,096 1981 May 94
<CAPTION>
COLUMN A COLUMN I
- ----------------------------------------- ----------------
LIFE ON WHICH
DEPRECIATED
IN LATEST
DESCRIPTION INCOME STATEMENT
- ----------- ----------------
<S> <C>
RETAIL
Cloverdale Village
Florence, AL............................ 40 Years
Riverview Plaza
Gadsden, AL............................. 40 Years
Grants Mill Station
Irondale, AL............................ 40 Years
Jitney/Sak n Save
Muscle Shoals, AL....................... 40 Years
Kroger/Handy TV
Muscle Shoals, AL....................... 40 Years
Bruno's/Food World
Scottsboro, AL.......................... 40 Years
Payton Park
Sylacauga, AL........................... 40 Years
Kmart #6734/Country Mrkt
Pine Bluff, AR.......................... 40 Years
Harvest Foods #274
Sherwood, AR............................ 40 Years
Glendale Galleria
Glendale, AZ............................ 40 Years
Abco #693
Mesa, AZ................................ 40 Years
KMART Plaza-Mesa
Mesa, AZ................................ 40 Years
Southern Village Mesa
Mesa, AZ................................ 40 Years
Sun Valley Plaza
Mesa, AZ................................ 40 Years
</TABLE>
F-28
<PAGE> 57
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III -- REAL ESTATE AND ACCUMULATED DEPRECIATION
DECEMBER 31, 1999
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D
- ----------------------------------------- ------------- ------------------------ ----------------
COST CAPITALIZED
SUBSEQUENT TO
INITIAL COST TO COMPANY ACQUISITION
------------------------ ----------------
BUILDING &
DESCRIPTION ENCUMBERANCES LAND IMPROVEMENTS IMPROVEMENTS
- ----------- ------------- --------- ------------ ----------------
<S> <C> <C> <C> <C>
RETAIL
Metro Marketplace
Phoenix, AZ............................. 5,098,702 20,521,995
Q Club #307505
Phoenix, AZ............................. 1,830,245 7,320,951
Southwest Spr Mkt (ABCO #690)
Phoenix, AZ............................. 298,236 1,193,113
Genzyme
Scottsdale, AZ.......................... 491,910 1,967,516
Q Club #307506
Scottsdale, AZ.......................... 1,843,664 7,374,597
Northmall Centre
Tucson, AZ.............................. 4,762,481 12,630,121 84,252
Payless Drug #06182
Yuma, AZ................................ 192,303 769,278
Bakersfield Plaza
Bakersfield, CA......................... 14,147,746 5,300,678 21,201,141
Factory Merchants Barstow
Barstow, CA............................. 9,058,554 5,730,337 22,936,349 13,044,417
Kinko's/Sony
Burbank, CA............................. 1,153,334 4,613,209 112,211
Carmen Plaza
Camarillo, CA........................... 1,872,708 7,491,044 3,872
Coachella Plaza
Coachella, CA........................... 263,529 1,054,118 9,281
Cudahy Plaza
Cudahy, CA.............................. 4,694,990 1,924,146 7,695,933 17,586
Arbor Faire
Fresno, CA.............................. 4,378,813 17,624,497
<CAPTION>
COLUMN A COLUMN E COLUMN F COLUMN G COLUMN H
- ----------------------------------------- ------------------------------------- ------------ ------------ --------
GROSS AMOUNT AT WHICH CARRIED AT
THE CLOSE OF THE PERIOD
-------------------------------------
BUILDING & ACCUMULATED DATE OF DATE
DESCRIPTION LAND IMPROVEMENTS TOTAL DEPRECIATION CONSTRUCTION ACQUIRED
- ----------- --------- ------------ ---------- ------------ ------------ --------
<S> <C> <C> <C> <C> <C> <C>
RETAIL
Metro Marketplace
Phoenix, AZ............................. 5,098,702 20,521,995 25,620,697 614,880 1988 Jun 91
Q Club #307505
Phoenix, AZ............................. 1,830,245 7,320,951 9,151,196 224,743 1994 May 94
Southwest Spr Mkt (ABCO #690)
Phoenix, AZ............................. 298,236 1,193,113 1,491,349 36,626 1982 Jan 94
Genzyme
Scottsdale, AZ.......................... 491,910 1,967,516 2,459,426 60,401 1971 Dec 90
Q Club #307506
Scottsdale, AZ.......................... 1,843,664 7,374,597 9,218,261 226,390 1994 Aug 94
Northmall Centre
Tucson, AZ.............................. 4,762,481 12,714,373 17,476,854 382,887 1995-96 Dec 96
Payless Drug #06182
Yuma, AZ................................ 192,303 769,278 961,581 23,615 1980 Aug 93
Bakersfield Plaza
Bakersfield, CA......................... 5,300,678 21,201,141 26,501,819 625,256 1970 Jun 97
Factory Merchants Barstow
Barstow, CA............................. 5,730,337 35,980,766 41,711,103 5,973,004 1989 Nov 93
Kinko's/Sony
Burbank, CA............................. 1,153,334 4,725,420 5,878,754 150,304 1988 May 89
Carmen Plaza
Camarillo, CA........................... 1,872,708 7,494,916 9,367,624 225,843 1971 Jun 97
Coachella Plaza
Coachella, CA........................... 263,529 1,063,399 1,326,928 33,485 1991 Jun 97
Cudahy Plaza
Cudahy, CA.............................. 1,924,146 7,713,519 9,637,665 228,362 1968 Jun 97
Arbor Faire
Fresno, CA.............................. 4,378,813 17,624,497 22,003,310 525,376 1993 Apr 97
<CAPTION>
COLUMN A COLUMN I
- ----------------------------------------- ----------------
LIFE ON WHICH
DEPRECIATED
IN LATEST
DESCRIPTION INCOME STATEMENT
- ----------- ----------------
<S> <C>
RETAIL
Metro Marketplace
Phoenix, AZ............................. 40 Years
Q Club #307505
Phoenix, AZ............................. 40 Years
Southwest Spr Mkt (ABCO #690)
Phoenix, AZ............................. 40 Years
Genzyme
Scottsdale, AZ.......................... 40 Years
Q Club #307506
Scottsdale, AZ.......................... 40 Years
Northmall Centre
Tucson, AZ.............................. 40 Years
Payless Drug #06182
Yuma, AZ................................ 40 Years
Bakersfield Plaza
Bakersfield, CA......................... 40 Years
Factory Merchants Barstow
Barstow, CA............................. 40 Years
Kinko's/Sony
Burbank, CA............................. 40 Years
Carmen Plaza
Camarillo, CA........................... 40 Years
Coachella Plaza
Coachella, CA........................... 40 Years
Cudahy Plaza
Cudahy, CA.............................. 40 Years
Arbor Faire
Fresno, CA.............................. 40 Years
</TABLE>
F-29
<PAGE> 58
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III -- REAL ESTATE AND ACCUMULATED DEPRECIATION
DECEMBER 31, 1999
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D
- --------------------------------------- ------------- ------------------------- ----------------
COST CAPITALIZED
SUBSEQUENT TO
INITIAL COST TO COMPANY ACQUISITION
------------------------- ----------------
BUILDING &
DESCRIPTION ENCUMBERANCES LAND IMPROVEMENTS IMPROVEMENTS
- ----------- ------------- ---------- ------------ ----------------
<S> <C> <C> <C> <C>
RETAIL
Broadway Faire
Fresno, CA............................ 2,795,383 11,181,648
Briggsmore Plaza
Modesto, CA........................... 1,139,298 1,663,885 6,653,828
Montebello Plaza
Montebello, CA........................ 8,889,848 5,801,166 23,202,411 2,001
Paradise Plaza
Paradise, CA.......................... 2,777,053 1,709,966 6,840,631
Metro 580
Pleasanton, CA........................ 5,876,389 23,651,921
Rose Pavilion
Pleasanton, CA........................ 11,355,146 45,703,524
Via del Campo Office Bldg
San Diego, CA......................... 497,018 1,988,071
San Dimas Plaza
San Dimas, CA......................... 7,463,496 4,435,649 17,744,585
Bristol Plaza
Santa Ana, CA......................... 8,508,228 2,934,989 11,611,340 127,380
Vail Ranch Center
Temecula, CA.......................... 2,630,621 10,522,619
United Artists Theatre #30016
Pueblo, CO............................ 141,221 564,854
Westminster City Centre
Westminster, CO....................... 29,586,845 12,256,884 49,332,701 25,982
Doverama @ Rodney Village
Dover, DE............................. 50,755 311,781
Rodney Village
Dover, DE............................. 1,202,551 2,082,918 2,561,046
<CAPTION>
COLUMN A COLUMN E COLUMN F COLUMN G COLUMN H
- --------------------------------------- -------------------------------------- ------------ ------------ --------
GROSS AMOUNT AT WHICH CARRIED AT
THE CLOSE OF THE PERIOD
--------------------------------------
BUILDING & ACCUMULATED DATE OF DATE
DESCRIPTION LAND IMPROVEMENTS TOTAL DEPRECIATION CONSTRUCTION ACQUIRED
- ----------- ---------- ------------ ---------- ------------ ------------ --------
<S> <C> <C> <C> <C> <C> <C>
RETAIL
Broadway Faire
Fresno, CA............................ 2,795,383 11,181,648 13,977,031 337,110 1993 Apr 97
Briggsmore Plaza
Modesto, CA........................... 1,663,885 6,653,828 8,317,713 196,236 1974 Jun 97
Montebello Plaza
Montebello, CA........................ 5,801,166 23,204,412 29,005,578 685,036 1974 Jun 97
Paradise Plaza
Paradise, CA.......................... 1,709,966 6,840,631 8,550,597 202,632 1979 Jun 97
Metro 580
Pleasanton, CA........................ 5,876,389 23,651,921 29,528,310 708,660 1995-96 Sep 97
Rose Pavilion
Pleasanton, CA........................ 11,355,146 45,703,524 57,058,670 1,369,371 1987 Feb 98
Via del Campo Office Bldg
San Diego, CA......................... 497,018 1,988,071 2,485,089 62,398 1988 Jan 94
San Dimas Plaza
San Dimas, CA......................... 4,435,649 17,744,585 22,180,234 523,308 1986-88 Oct 97
Bristol Plaza
Santa Ana, CA......................... 2,934,989 11,738,720 14,673,709 346,581 1972 Jun 97
Vail Ranch Center
Temecula, CA.......................... 2,630,621 10,522,619 13,153,240 317,241 1997 Dec 97
United Artists Theatre #30016
Pueblo, CO............................ 141,221 564,854 706,075 17,340 1977 Dec 92
Westminster City Centre
Westminster, CO....................... 12,256,884 49,358,683 61,615,567 1,478,489 1996 Dec 97
Doverama @ Rodney Village
Dover, DE............................. 50,755 311,781 362,536 86,742 1969 Oct 88
Rodney Village
Dover, DE............................. 1,202,551 4,643,964 5,846,515 3,455,467 1959 Jan 69
<CAPTION>
COLUMN A COLUMN I
- --------------------------------------- ----------------
LIFE ON WHICH
DEPRECIATED
IN LATEST
DESCRIPTION INCOME STATEMENT
- ----------- ----------------
<S> <C>
RETAIL
Broadway Faire
Fresno, CA............................ 40 Years
Briggsmore Plaza
Modesto, CA........................... 40 Years
Montebello Plaza
Montebello, CA........................ 40 Years
Paradise Plaza
Paradise, CA.......................... 40 Years
Metro 580
Pleasanton, CA........................ 40 Years
Rose Pavilion
Pleasanton, CA........................ 40 Years
Via del Campo Office Bldg
San Diego, CA......................... 40 Years
San Dimas Plaza
San Dimas, CA......................... 40 Years
Bristol Plaza
Santa Ana, CA......................... 40 Years
Vail Ranch Center
Temecula, CA.......................... 40 Years
United Artists Theatre #30016
Pueblo, CO............................ 40 Years
Westminster City Centre
Westminster, CO....................... 40 Years
Doverama @ Rodney Village
Dover, DE............................. 40 Years
Rodney Village
Dover, DE............................. 40 Years
</TABLE>
F-30
<PAGE> 59
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III -- REAL ESTATE AND ACCUMULATED DEPRECIATION
DECEMBER 31, 1999
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D
- ----------------------------------------- ------------- ------------------------ ----------------
COST CAPITALIZED
SUBSEQUENT TO
INITIAL COST TO COMPANY ACQUISITION
------------------------ ----------------
BUILDING &
DESCRIPTION ENCUMBERANCES LAND IMPROVEMENTS IMPROVEMENTS
- ----------- ------------- --------- ------------ ----------------
<S> <C> <C> <C> <C>
RETAIL
Gold's/Kash n Karry 869/Food Lion
Brandon, FL............................. 390,830 1,563,125
Brooksville Square
Brooksville, FL......................... 1,373,719 5,494,698
Kmart #7513
Brooksville, FL......................... 1,346,436 5,385,720
Clearwater Mall
Clearwater, FL.......................... 4,662,276 18,646,102 468,857
Northgate Shopping Center
Deland, FL.............................. 8,458,324 2,957,640 11,830,664 11,410
Regency Park Shopping Center
Jacksonville, FL........................ 3,888,425 15,553,501 71,259
Eastgate Shopping Center-Lake Wales
Lake Wales, FL.......................... 1,542,842 6,171,549
Leesburg Square
Leesburg, FL............................ 1,051,639 4,206,554 16,464
Miami Gardens
Miami, FL............................... 5,490,459 22,098,501 40,560
Freedom Square
Naples, FL.............................. 3,340,254 13,361,048
Southgate Shopping Center
New Port Richie, FL..................... 4,253,341 3,981,290 41,810
Presidential Plaza
North Lauderdale, FL.................... 1,312,956 2,456,917 153,033
Presidential Plaza West
North Lauderdale, FL.................... 437,485 812,473 13,147
Colonial Marketplace
Orlando, FL............................. 4,049,702 2,524,647 3,504,446 6,047
<CAPTION>
COLUMN A COLUMN E COLUMN F COLUMN G COLUMN H
- ----------------------------------------- ------------------------------------- ------------ ------------ --------
GROSS AMOUNT AT WHICH CARRIED AT
THE CLOSE OF THE PERIOD
-------------------------------------
BUILDING & ACCUMULATED DATE OF DATE
DESCRIPTION LAND IMPROVEMENTS TOTAL DEPRECIATION CONSTRUCTION ACQUIRED
- ----------- --------- ------------ ---------- ------------ ------------ --------
<S> <C> <C> <C> <C> <C> <C>
RETAIL
Gold's/Kash n Karry 869/Food Lion
Brandon, FL............................. 390,830 1,563,125 1,953,955 47,987 1982 Aug 93
Brooksville Square
Brooksville, FL......................... 1,373,719 5,494,698 6,868,417 165,658 1987 Mar 94
Kmart #7513
Brooksville, FL......................... 1,346,436 5,385,720 6,732,156 165,334 1987 Jun 97
Clearwater Mall
Clearwater, FL.......................... 4,662,276 19,114,959 23,777,235 1,303,175 1973 Dec 97
Northgate Shopping Center
Deland, FL.............................. 2,957,640 11,842,074 14,799,714 359,830 1993 Jun 93
Regency Park Shopping Center
Jacksonville, FL........................ 3,888,425 15,624,760 19,513,185 978,672 1985 Jun 97
Eastgate Shopping Center-Lake Wales
Lake Wales, FL.......................... 1,542,842 6,171,549 7,714,391 186,062 1994 May 94
Leesburg Square
Leesburg, FL............................ 1,051,639 4,223,018 5,274,657 132,353 1986 Dec 92
Miami Gardens
Miami, FL............................... 5,490,459 22,139,061 27,629,520 662,920 1996 Oct 97
Freedom Square
Naples, FL.............................. 3,340,254 13,361,048 16,701,302 402,817 1995 Oct 97
Southgate Shopping Center
New Port Richie, FL..................... 4,253,341 4,023,100 8,276,441 223,431 1966 Aug 97
Presidential Plaza
North Lauderdale, FL.................... 1,312,956 2,609,950 3,922,906 174,899 1977 Apr 97
Presidential Plaza West
North Lauderdale, FL.................... 437,485 825,620 1,263,105 55,638 1977 Apr 97
Colonial Marketplace
Orlando, FL............................. 2,524,647 3,510,493 6,035,140 149,669 1979,86 Apr 98
<CAPTION>
COLUMN A COLUMN I
- ----------------------------------------- ----------------
LIFE ON WHICH
DEPRECIATED
IN LATEST
DESCRIPTION INCOME STATEMENT
- ----------- ----------------
<S> <C>
RETAIL
Gold's/Kash n Karry 869/Food Lion
Brandon, FL............................. 40 Years
Brooksville Square
Brooksville, FL......................... 40 Years
Kmart #7513
Brooksville, FL......................... 40 Years
Clearwater Mall
Clearwater, FL.......................... 40 Years
Northgate Shopping Center
Deland, FL.............................. 40 Years
Regency Park Shopping Center
Jacksonville, FL........................ 40 Years
Eastgate Shopping Center-Lake Wales
Lake Wales, FL.......................... 40 Years
Leesburg Square
Leesburg, FL............................ 40 Years
Miami Gardens
Miami, FL............................... 40 Years
Freedom Square
Naples, FL.............................. 40 Years
Southgate Shopping Center
New Port Richie, FL..................... 40 Years
Presidential Plaza
North Lauderdale, FL.................... 40 Years
Presidential Plaza West
North Lauderdale, FL.................... 40 Years
Colonial Marketplace
Orlando, FL............................. 40 Years
</TABLE>
F-31
<PAGE> 60
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III -- REAL ESTATE AND ACCUMULATED DEPRECIATION
DECEMBER 31, 1999
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D
- ----------------------------------------- ------------- ------------------------ ----------------
COST CAPITALIZED
SUBSEQUENT TO
INITIAL COST TO COMPANY ACQUISITION
------------------------ ----------------
BUILDING &
DESCRIPTION ENCUMBERANCES LAND IMPROVEMENTS IMPROVEMENTS
- ----------- ------------- --------- ------------ ----------------
<S> <C> <C> <C> <C>
RETAIL
23rd Street Station
Panama City, FL......................... 1,849,668 7,398,843 42,014
Riverwood Shopping Center
Port Orange, FL......................... 2,243,023 1,500,580 34,620
Seminole Plaza
Seminole, FL............................ 2,128,480 2,215,356 307,982
St Augustine Outlet Center
St Augustine, FL........................ 4,488,742 14,426,139 10,318,921
Rutland Plaza
St Petersburg, FL....................... 1,443,294 5,773,175 127,869
Albany I
Albany, GA.............................. 470,300 1,881,213
Albany Plaza
Albany, GA.............................. 696,447 2,799,786 148,167
Southgate Plaza -- Albany
Albany, GA.............................. 231,517 970,811 107,751
Eastgate Plaza -- Americus
Americus, GA............................ 221,637 1,036,331 108,166
Perlis Plaza
Americus, GA............................ 774,966 5,301,644 562,817
Rogers Plaza
Ashburn, GA............................. 291,014 688,590 110,593
Sweetwater Village
Austell, GA............................. 707,938 2,831,750 28,764
Cedar Plaza
Cedartown, GA........................... 928,302 3,713,207 50,395
Cedartown Shopping Center
Cedartown, GA........................... 745,006 3,266,424 84,289
<CAPTION>
COLUMN A COLUMN E COLUMN F COLUMN G COLUMN H
- ----------------------------------------- ------------------------------------- ------------ ------------ --------
GROSS AMOUNT AT WHICH CARRIED AT
THE CLOSE OF THE PERIOD
-------------------------------------
BUILDING & ACCUMULATED DATE OF DATE
DESCRIPTION LAND IMPROVEMENTS TOTAL DEPRECIATION CONSTRUCTION ACQUIRED
- ----------- --------- ------------ ---------- ------------ ------------ --------
<S> <C> <C> <C> <C> <C> <C>
RETAIL
23rd Street Station
Panama City, FL......................... 1,849,668 7,440,857 9,290,525 229,687 1986 Jul 98
Riverwood Shopping Center
Port Orange, FL......................... 2,243,023 1,535,200 3,778,223 86,441 1984,1996 Sep 97
Seminole Plaza
Seminole, FL............................ 2,128,480 2,523,338 4,651,818 103,530 1964 Jun 98
St Augustine Outlet Center
St Augustine, FL........................ 4,488,742 24,745,060 29,233,802 5,251,716 1991 Mar 92
Rutland Plaza
St Petersburg, FL....................... 1,443,294 5,901,044 7,344,338 466,325 1964 Nov 96
Albany I
Albany, GA.............................. 470,300 1,881,213 2,351,513 57,751 1981 Aug 93
Albany Plaza
Albany, GA.............................. 696,447 2,947,953 3,644,400 412,520 1968 May 94
Southgate Plaza -- Albany
Albany, GA.............................. 231,517 1,078,562 1,310,079 236,609 1969 Jul 90
Eastgate Plaza -- Americus
Americus, GA............................ 221,637 1,144,497 1,366,134 255,483 1980 Jul 90
Perlis Plaza
Americus, GA............................ 774,966 5,864,461 6,639,427 1,420,903 1972 Jul 90
Rogers Plaza
Ashburn, GA............................. 291,014 799,183 1,090,197 208,917 1974 Jul 90
Sweetwater Village
Austell, GA............................. 707,938 2,860,514 3,568,452 370,677 1985 Oct 94
Cedar Plaza
Cedartown, GA........................... 928,302 3,763,602 4,691,904 491,584 1994 Oct 94
Cedartown Shopping Center
Cedartown, GA........................... 745,006 3,350,713 4,095,719 424,588 1989 Jan 95
<CAPTION>
COLUMN A COLUMN I
- ----------------------------------------- ----------------
LIFE ON WHICH
DEPRECIATED
IN LATEST
DESCRIPTION INCOME STATEMENT
- ----------- ----------------
<S> <C>
RETAIL
23rd Street Station
Panama City, FL......................... 40 Years
Riverwood Shopping Center
Port Orange, FL......................... 40 Years
Seminole Plaza
Seminole, FL............................ 40 Years
St Augustine Outlet Center
St Augustine, FL........................ 40 Years
Rutland Plaza
St Petersburg, FL....................... 40 Years
Albany I
Albany, GA.............................. 40 Years
Albany Plaza
Albany, GA.............................. 40 Years
Southgate Plaza -- Albany
Albany, GA.............................. 40 Years
Eastgate Plaza -- Americus
Americus, GA............................ 40 Years
Perlis Plaza
Americus, GA............................ 40 Years
Rogers Plaza
Ashburn, GA............................. 40 Years
Sweetwater Village
Austell, GA............................. 40 Years
Cedar Plaza
Cedartown, GA........................... 40 Years
Cedartown Shopping Center
Cedartown, GA........................... 40 Years
</TABLE>
F-32
<PAGE> 61
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III -- REAL ESTATE AND ACCUMULATED DEPRECIATION
DECEMBER 31, 1999
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D
- ----------------------------------------- ------------- ------------------------ ----------------
COST CAPITALIZED
SUBSEQUENT TO
INITIAL COST TO COMPANY ACQUISITION
------------------------ ----------------
BUILDING &
DESCRIPTION ENCUMBERANCES LAND IMPROVEMENTS IMPROVEMENTS
- ----------- ------------- --------- ------------ ----------------
<S> <C> <C> <C> <C>
RETAIL
Cordele Square
Cordele, GA............................. 864,335 3,457,337 417,896
Mr B's
Cordele, GA............................. 166,047 154,140 7,880
Southgate Plaza
Cordele, GA -- CORDELE.................. 202,682 958,998 154,037
Habersham Crossing
Cornelia, GA............................ 3,977,453 1,644,936 6,580,460
Habersham Village
Cornelia, GA............................ 1,301,643 4,340,422 727,384
Covington Gallery
Covington, GA........................... 2,494,987 9,979,829
Market Central
Dalton, GA.............................. 791,717 3,166,957
Northside SC
Dalton, GA.............................. 2,261,217 965,965 3,861,372
Midway Village Shopping Center
Douglasville, GA........................ 1,553,580 2,887,506 30,692
Westgate -- Dublin
Dublin, GA.............................. 699,174 5,834,809 157,749
Harvey's (Kroger)
East Albany, GA......................... 336,205 1,344,642
Rite Aid #2110
East Albany, GA......................... 92,794 371,343
Marshall's at Eastlake Shopping Center
Marietta, GA............................ 1,710,517 2,069,483
New Chastain Corners Shopping Center
Marietta, GA............................ 2,457,446 5,741,641 79,266
<CAPTION>
COLUMN A COLUMN E COLUMN F COLUMN G COLUMN H
- ----------------------------------------- ------------------------------------- ------------ ------------ --------
GROSS AMOUNT AT WHICH CARRIED AT
THE CLOSE OF THE PERIOD
-------------------------------------
BUILDING & ACCUMULATED DATE OF DATE
DESCRIPTION LAND IMPROVEMENTS TOTAL DEPRECIATION CONSTRUCTION ACQUIRED
- ----------- --------- ------------ ---------- ------------ ------------ --------
<S> <C> <C> <C> <C> <C> <C>
RETAIL
Cordele Square
Cordele, GA............................. 864,335 3,875,233 4,739,568 943,038 1968 Jul 90
Mr B's
Cordele, GA............................. 166,047 162,020 328,067 38,253 1968 Jul 90
Southgate Plaza
Cordele, GA -- CORDELE.................. 202,682 1,113,035 1,315,717 235,621 1969 Jul 90
Habersham Crossing
Cornelia, GA............................ 1,644,936 6,580,460 8,225,396 194,057 1985 Mar 96
Habersham Village
Cornelia, GA............................ 1,301,643 5,067,806 6,369,449 1,063,567 1985 May 92
Covington Gallery
Covington, GA........................... 2,494,987 9,979,829 12,474,816 300,879 1991 Dec 93
Market Central
Dalton, GA.............................. 791,717 3,166,957 3,958,674 95,479 1995 Mar 97
Northside SC
Dalton, GA.............................. 965,965 3,861,372 4,827,337 113,888 1994 Oct 95
Midway Village Shopping Center
Douglasville, GA........................ 1,553,580 2,918,198 4,471,778 186,030 1989 May 97
Westgate -- Dublin
Dublin, GA.............................. 699,174 5,992,558 6,691,732 1,398,132 1974 Jul 90
Harvey's (Kroger)
East Albany, GA......................... 336,205 1,344,642 1,680,847 41,280 1982 Aug 93
Rite Aid #2110
East Albany, GA......................... 92,794 371,343 464,137 11,399 1982 Aug 93
Marshall's at Eastlake Shopping Center
Marietta, GA............................ 1,710,517 2,069,483 3,780,000 62,516 1982 Oct 98
New Chastain Corners Shopping Center
Marietta, GA............................ 2,457,446 5,820,907 8,278,353 355,858 1990 Jul 97
<CAPTION>
COLUMN A COLUMN I
- ----------------------------------------- ----------------
LIFE ON WHICH
DEPRECIATED
IN LATEST
DESCRIPTION INCOME STATEMENT
- ----------- ----------------
<S> <C>
RETAIL
Cordele Square
Cordele, GA............................. 40 Years
Mr B's
Cordele, GA............................. 40 Years
Southgate Plaza
Cordele, GA -- CORDELE.................. 40 Years
Habersham Crossing
Cornelia, GA............................ 40 Years
Habersham Village
Cornelia, GA............................ 40 Years
Covington Gallery
Covington, GA........................... 40 Years
Market Central
Dalton, GA.............................. 40 Years
Northside SC
Dalton, GA.............................. 40 Years
Midway Village Shopping Center
Douglasville, GA........................ 40 Years
Westgate -- Dublin
Dublin, GA.............................. 40 Years
Harvey's (Kroger)
East Albany, GA......................... 40 Years
Rite Aid #2110
East Albany, GA......................... 40 Years
Marshall's at Eastlake Shopping Center
Marietta, GA............................ 40 Years
New Chastain Corners Shopping Center
Marietta, GA............................ 40 Years
</TABLE>
F-33
<PAGE> 62
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III -- REAL ESTATE AND ACCUMULATED DEPRECIATION
DECEMBER 31, 1999
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D
- ----------------------------------------- ------------- ------------------------ ----------------
COST CAPITALIZED
SUBSEQUENT TO
INITIAL COST TO COMPANY ACQUISITION
------------------------ ----------------
BUILDING &
DESCRIPTION ENCUMBERANCES LAND IMPROVEMENTS IMPROVEMENTS
- ----------- ------------- --------- ------------ ----------------
<S> <C> <C> <C> <C>
RETAIL
Pavillions at East Lake Shopping Center
Marietta, GA............................ 2,812,000 11,249,970 29,400
Village at Southlake
Morrow, GA.............................. 1,733,198 3,017,677
Perry Marketplace
Perry, GA............................... 7,347,084 2,776,518 11,105,959
Creekwood Shopping Center
Rex, GA................................. 1,160,203 3,482,608
Shops of Riverdale
Riverdale, GA........................... 655,145 2,620,747
Eisenhower Square Shopping Center
Savannah, GA............................ 1,029,500 4,117,700 141,657
Victory Square
Savannah, GA............................ 1,206,181 4,824,725 148,030
Wisteria Village
Snellville, GA.......................... 2,525,402 2,542,919 10,200,657 3,600
University Commons
Statesboro, GA.......................... 3,208,952 1,312,739 5,250,755
Tift-Town
Tifton, GA.............................. 271,444 1,325,238 271,359
Westgate -- Tifton
Tifton, GA.............................. 156,269 304,704 963
Kmart #9287
Atlantic, IA............................ 293,138 1,172,664
Eagle #688/329
Coralville, IA.......................... 301,006 1,203,992
Haymarket Mall
Des Moines, IA.......................... 1,230,252 5,031,799 231,955
<CAPTION>
COLUMN A COLUMN E COLUMN F COLUMN G COLUMN H
- ----------------------------------------- ------------------------------------- ------------ ------------ --------
GROSS AMOUNT AT WHICH CARRIED AT
THE CLOSE OF THE PERIOD
-------------------------------------
BUILDING & ACCUMULATED DATE OF DATE
DESCRIPTION LAND IMPROVEMENTS TOTAL DEPRECIATION CONSTRUCTION ACQUIRED
- ----------- --------- ------------ ---------- ------------ ------------ --------
<S> <C> <C> <C> <C> <C> <C>
RETAIL
Pavillions at East Lake Shopping Center
Marietta, GA............................ 2,812,000 11,279,370 14,091,370 224,536 1986 Mar 99
Village at Southlake
Morrow, GA.............................. 1,733,198 3,017,677 4,750,875 129,320 1983 Apr 98
Perry Marketplace
Perry, GA............................... 2,776,518 11,105,959 13,882,477 334,830 1992 Dec 92
Creekwood Shopping Center
Rex, GA................................. 1,160,203 3,482,608 4,642,811 221,207 1990 May 97
Shops of Riverdale
Riverdale, GA........................... 655,145 2,620,747 3,275,892 79,011 1995 Feb 96
Eisenhower Square Shopping Center
Savannah, GA............................ 1,029,500 4,259,357 5,288,857 260,164 1985 Jul 97
Victory Square
Savannah, GA............................ 1,206,181 4,972,755 6,178,936 938,569 1986 Jul 92
Wisteria Village
Snellville, GA.......................... 2,542,919 10,204,257 12,747,176 307,858 1985 Oct 95
University Commons
Statesboro, GA.......................... 1,312,739 5,250,755 6,563,494 158,304 1994 Jul 96
Tift-Town
Tifton, GA.............................. 271,444 1,596,597 1,868,041 364,768 1965 Jul 90
Westgate -- Tifton
Tifton, GA.............................. 156,269 305,667 461,936 72,129 1980 Jul 90
Kmart #9287
Atlantic, IA............................ 293,138 1,172,664 1,465,802 35,998 1980 Jan 94
Eagle #688/329
Coralville, IA.......................... 301,006 1,203,992 1,504,998 36,961 1981 Aug 93
Haymarket Mall
Des Moines, IA.......................... 1,230,252 5,263,754 6,494,006 592,982 1968-1979 May 95
<CAPTION>
COLUMN A COLUMN I
- ----------------------------------------- ----------------
LIFE ON WHICH
DEPRECIATED
IN LATEST
DESCRIPTION INCOME STATEMENT
- ----------- ----------------
<S> <C>
RETAIL
Pavillions at East Lake Shopping Center
Marietta, GA............................ 40 Years
Village at Southlake
Morrow, GA.............................. 40 Years
Perry Marketplace
Perry, GA............................... 40 Years
Creekwood Shopping Center
Rex, GA................................. 40 Years
Shops of Riverdale
Riverdale, GA........................... 40 Years
Eisenhower Square Shopping Center
Savannah, GA............................ 40 Years
Victory Square
Savannah, GA............................ 40 Years
Wisteria Village
Snellville, GA.......................... 40 Years
University Commons
Statesboro, GA.......................... 40 Years
Tift-Town
Tifton, GA.............................. 40 Years
Westgate -- Tifton
Tifton, GA.............................. 40 Years
Kmart #9287
Atlantic, IA............................ 40 Years
Eagle #688/329
Coralville, IA.......................... 40 Years
Haymarket Mall
Des Moines, IA.......................... 40 Years
</TABLE>
F-34
<PAGE> 63
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III -- REAL ESTATE AND ACCUMULATED DEPRECIATION
DECEMBER 31, 1999
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D
- ----------------------------------------- ------------- ------------------------ ----------------
COST CAPITALIZED
SUBSEQUENT TO
INITIAL COST TO COMPANY ACQUISITION
------------------------ ----------------
BUILDING &
DESCRIPTION ENCUMBERANCES LAND IMPROVEMENTS IMPROVEMENTS
- ----------- ------------- --------- ------------ ----------------
<S> <C> <C> <C> <C>
RETAIL
Haymarket Square
Des Moines, IA.......................... 2,056,172 8,224,688 477,383
Eagle #320
Dubuque, IA............................. 401,468 1,605,847
Southfield Plaza Shopping Center
Bridgeview, IL.......................... 3,188,496 3,897,167 7,415,859
Eagle #085
Decatur, IL............................. 317,157 1,268,874
King City Square
Mt. Vernon, IL.......................... 2,049,456 8,197,876
Estridge Court Shopping Center
Naperville, IL.......................... 9,815,696 39,261,783 592,970
Kroger #704
Ottawa, IL.............................. 474,403 1,897,574
Eagle #106/Leath Furn
Peoria, IL.............................. 401,504 1,605,992
Eagle #107
Springfield, IL......................... 313,959 1,255,721
Eagle #153
Sterling, IL............................ 400,527 1,601,977
Tinley Park Plaza
Tinley Park, IL......................... 2,607,702 10,430,808 331,200
Schnuck Market/Kroger
Waterloo, IL............................ 352,351 1,409,498
Kindercare #126
Beech Grove, IN......................... 84,586 338,102
Columbus Center
Columbus, IN............................ 1,196,269 3,608,315 3,345,301
<CAPTION>
COLUMN A COLUMN E COLUMN F COLUMN G COLUMN H
- ----------------------------------------- ------------------------------------- ------------ ------------ --------
GROSS AMOUNT AT WHICH CARRIED AT
THE CLOSE OF THE PERIOD
-------------------------------------
BUILDING & ACCUMULATED DATE OF DATE
DESCRIPTION LAND IMPROVEMENTS TOTAL DEPRECIATION CONSTRUCTION ACQUIRED
- ----------- --------- ------------ ---------- ------------ ------------ --------
<S> <C> <C> <C> <C> <C> <C>
RETAIL
Haymarket Square
Des Moines, IA.......................... 2,056,172 8,702,071 10,758,243 1,020,184 1971-1979 May 95
Eagle #320
Dubuque, IA............................. 401,468 1,605,847 2,007,315 49,297 1980 Aug 93
Southfield Plaza Shopping Center
Bridgeview, IL.......................... 3,188,496 11,313,026 14,501,522 1,201,915 1958,72 Dec 96
Eagle #085
Decatur, IL............................. 317,157 1,268,874 1,586,031 38,951 1983 Aug 93
King City Square
Mt. Vernon, IL.......................... 2,049,456 8,197,876 10,247,332 247,154 1994 Jul 98
Estridge Court Shopping Center
Naperville, IL.......................... 9,815,696 39,854,753 49,670,449 2,484,449 1990 Jul 97
Kroger #704
Ottawa, IL.............................. 474,403 1,897,574 2,371,977 58,253 1982 Aug 93
Eagle #106/Leath Furn
Peoria, IL.............................. 401,504 1,605,992 2,007,496 49,302 1983 Aug 93
Eagle #107
Springfield, IL......................... 313,959 1,255,721 1,569,680 38,550 1982 Aug 93
Eagle #153
Sterling, IL............................ 400,527 1,601,977 2,002,504 49,179 1980 Aug 93
Tinley Park Plaza
Tinley Park, IL......................... 2,607,702 10,762,008 13,369,710 1,207,373 1973 Sep 95
Schnuck Market/Kroger
Waterloo, IL............................ 352,351 1,409,498 1,761,849 43,269 1982 Aug 93
Kindercare #126
Beech Grove, IN......................... 84,586 338,102 422,688 10,381 1976 Dec 92
Columbus Center
Columbus, IN............................ 1,196,269 6,953,616 8,149,885 2,044,389 1964 Dec 88
<CAPTION>
COLUMN A COLUMN I
- ----------------------------------------- ----------------
LIFE ON WHICH
DEPRECIATED
IN LATEST
DESCRIPTION INCOME STATEMENT
- ----------- ----------------
<S> <C>
RETAIL
Haymarket Square
Des Moines, IA.......................... 40 Years
Eagle #320
Dubuque, IA............................. 40 Years
Southfield Plaza Shopping Center
Bridgeview, IL.......................... 40 Years
Eagle #085
Decatur, IL............................. 40 Years
King City Square
Mt. Vernon, IL.......................... 40 Years
Estridge Court Shopping Center
Naperville, IL.......................... 40 Years
Kroger #704
Ottawa, IL.............................. 40 Years
Eagle #106/Leath Furn
Peoria, IL.............................. 40 Years
Eagle #107
Springfield, IL......................... 40 Years
Eagle #153
Sterling, IL............................ 40 Years
Tinley Park Plaza
Tinley Park, IL......................... 40 Years
Schnuck Market/Kroger
Waterloo, IL............................ 40 Years
Kindercare #126
Beech Grove, IN......................... 40 Years
Columbus Center
Columbus, IN............................ 40 Years
</TABLE>
F-35
<PAGE> 64
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III -- REAL ESTATE AND ACCUMULATED DEPRECIATION
DECEMBER 31, 1999
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D
- ----------------------------------------- ------------- ------------------------ ----------------
COST CAPITALIZED
SUBSEQUENT TO
INITIAL COST TO COMPANY ACQUISITION
------------------------ ----------------
BUILDING &
DESCRIPTION ENCUMBERANCES LAND IMPROVEMENTS IMPROVEMENTS
- ----------- ------------- --------- ------------ ----------------
<S> <C> <C> <C> <C>
RETAIL
Kindercare #132
Fort Wayne, IN.......................... 84,586 338,102
Eagle #634/079
Hobart, IN.............................. 332,606 1,330,353
Kindercare #125
Indianapolis, IN........................ 84,586 338,102
Kindercare #128
Indianapolis, IN........................ 84,586 338,102
Kindercare #134
Indianapolis, IN........................ 36,740 146,985
Jasper Manor
Jasper, IN.............................. 1,319,937 7,110,063 26,561
Valley View Plaza
Marion, IN.............................. 684,867 2,739,492
Eagle #084
Michigan City, IN....................... 275,395 1,101,747
Town Fair Shopping Center
Princeton, IN........................... 1,104,876 3,759,503 10,437
Wabash Valley Plaza
Terre Haute, IN......................... 2,747,241 649,120 2,596,480 52,900
Wabash Crossing
Wabash, IN.............................. 1,599,488 6,470,511 27,744
Woodland Plaza
Warsaw, IN.............................. 420,188 1,680,587 21,001
Green River Plaza
Campbellsville, KY...................... 5,344,386 2,410,959 9,644,967
Kmart Plaza-Eliz
Elizabethtown, KY....................... 5,160,308 1,703,868 6,815,386
<CAPTION>
COLUMN A COLUMN E COLUMN F COLUMN G COLUMN H
- ----------------------------------------- ------------------------------------- ------------ ------------ --------
GROSS AMOUNT AT WHICH CARRIED AT
THE CLOSE OF THE PERIOD
-------------------------------------
BUILDING & ACCUMULATED DATE OF DATE
DESCRIPTION LAND IMPROVEMENTS TOTAL DEPRECIATION CONSTRUCTION ACQUIRED
- ----------- --------- ------------ ---------- ------------ ------------ --------
<S> <C> <C> <C> <C> <C> <C>
RETAIL
Kindercare #132
Fort Wayne, IN.......................... 84,586 338,102 422,688 10,381 1976 Dec 92
Eagle #634/079
Hobart, IN.............................. 332,606 1,330,353 1,662,959 40,840 1983 Aug 93
Kindercare #125
Indianapolis, IN........................ 84,586 338,102 422,688 10,381 1976 Dec 92
Kindercare #128
Indianapolis, IN........................ 84,586 338,102 422,688 10,381 1976 Dec 92
Kindercare #134
Indianapolis, IN........................ 36,740 146,985 183,725 4,512 1975 Dec 92
Jasper Manor
Jasper, IN.............................. 1,319,937 7,136,624 8,456,561 1,405,182 1990 Feb 92
Valley View Plaza
Marion, IN.............................. 684,867 2,739,492 3,424,359 82,592 1989 Mar 94
Eagle #084
Michigan City, IN....................... 275,395 1,101,747 1,377,142 33,821 1983 Aug 93
Town Fair Shopping Center
Princeton, IN........................... 1,104,876 3,769,940 4,874,816 646,798 1991 Feb 93
Wabash Valley Plaza
Terre Haute, IN......................... 649,120 2,649,380 3,298,500 99,840 1989 Mar 94
Wabash Crossing
Wabash, IN.............................. 1,599,488 6,498,255 8,097,743 982,296 1988 Dec 93
Woodland Plaza
Warsaw, IN.............................. 420,188 1,701,588 2,121,776 53,378 1989 Mar 94
Green River Plaza
Campbellsville, KY...................... 2,410,959 9,644,967 12,055,926 284,441 1989 Mar 96
Kmart Plaza-Eliz
Elizabethtown, KY....................... 1,703,868 6,815,386 8,519,254 205,475 1992 Feb 93
<CAPTION>
COLUMN A COLUMN I
- ----------------------------------------- ----------------
LIFE ON WHICH
DEPRECIATED
IN LATEST
DESCRIPTION INCOME STATEMENT
- ----------- ----------------
<S> <C>
RETAIL
Kindercare #132
Fort Wayne, IN.......................... 40 Years
Eagle #634/079
Hobart, IN.............................. 40 Years
Kindercare #125
Indianapolis, IN........................ 40 Years
Kindercare #128
Indianapolis, IN........................ 40 Years
Kindercare #134
Indianapolis, IN........................ 40 Years
Jasper Manor
Jasper, IN.............................. 40 Years
Valley View Plaza
Marion, IN.............................. 40 Years
Eagle #084
Michigan City, IN....................... 40 Years
Town Fair Shopping Center
Princeton, IN........................... 40 Years
Wabash Valley Plaza
Terre Haute, IN......................... 40 Years
Wabash Crossing
Wabash, IN.............................. 40 Years
Woodland Plaza
Warsaw, IN.............................. 40 Years
Green River Plaza
Campbellsville, KY...................... 40 Years
Kmart Plaza-Eliz
Elizabethtown, KY....................... 40 Years
</TABLE>
F-36
<PAGE> 65
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III -- REAL ESTATE AND ACCUMULATED DEPRECIATION
DECEMBER 31, 1999
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D
- ----------------------------------------- ------------- ------------------------ ----------------
COST CAPITALIZED
SUBSEQUENT TO
INITIAL COST TO COMPANY ACQUISITION
------------------------ ----------------
BUILDING &
DESCRIPTION ENCUMBERANCES LAND IMPROVEMENTS IMPROVEMENTS
- ----------- ------------- --------- ------------ ----------------
<S> <C> <C> <C> <C>
RETAIL
Highland Commons
Glasgow, KY............................. 4,782,617 1,715,609 6,862,680 17,748
J*Town Center
Jeffersontown, KY....................... 1,331,074 4,121,997 616,521
Mist Lake Plaza
Lexington, KY........................... 10,057,352 4,101,461 16,405,956
London Marketplace
London, KY.............................. 5,377,251 2,520,416 10,081,562
Piccadilly Square
Louisville, KY.......................... 355,000 1,588,409 466,969
Eastgate Shopping Center
Middletown, KY.......................... 1,945,679 7,792,717 734,033
Lexington Road Plaza
Versailles, KY.......................... 8,203,265 2,856,229 11,425,027 19,065
Lagniappe Village
New Iberia, LA.......................... 6,849,139 3,122,914 12,491,850 41,804
Brookshire Grocery Co
West Monroe, LA......................... 388,984 1,556,046
Fruitland Plaza
Fruitland, MD........................... 312,650 1,833,330 911,263
Liberty Plaza
Randallstown, MD........................ 2,075,809 8,303,237 231,483
Rising Sun Towne Centre
Rising Sun, MD.......................... 1,161,300 4,389,359 4,950
Maple Village Shopping Center
Ann Arbor, MI........................... 1,625,580 6,514,322 1,693,756
Mountain Jack's #210303
Dearborn Heights, MI.................... 287,462 1,149,835
<CAPTION>
COLUMN A COLUMN E COLUMN F COLUMN G COLUMN H
- ----------------------------------------- ------------------------------------- ------------ ------------ --------
GROSS AMOUNT AT WHICH CARRIED AT
THE CLOSE OF THE PERIOD
-------------------------------------
BUILDING & ACCUMULATED DATE OF DATE
DESCRIPTION LAND IMPROVEMENTS TOTAL DEPRECIATION CONSTRUCTION ACQUIRED
- ----------- --------- ------------ ---------- ------------ ------------ --------
<S> <C> <C> <C> <C> <C> <C>
RETAIL
Highland Commons
Glasgow, KY............................. 1,715,609 6,880,428 8,596,037 207,250 1992 Mar 93
J*Town Center
Jeffersontown, KY....................... 1,331,074 4,738,518 6,069,592 1,340,748 1959 Oct 88
Mist Lake Plaza
Lexington, KY........................... 4,101,461 16,405,956 20,507,417 494,616 1993 Jul 98
London Marketplace
London, KY.............................. 2,520,416 10,081,562 12,601,978 303,946 1994 Mar 94
Piccadilly Square
Louisville, KY.......................... 355,000 2,055,378 2,410,378 559,124 1973 Apr 89
Eastgate Shopping Center
Middletown, KY.......................... 1,945,679 8,526,750 10,472,429 1,410,413 1987 Nov 93
Lexington Road Plaza
Versailles, KY.......................... 2,856,229 11,444,092 14,300,321 348,087 1994 Apr 94
Lagniappe Village
New Iberia, LA.......................... 3,122,914 12,533,654 15,656,568 377,656 1990 Jul 98
Brookshire Grocery Co
West Monroe, LA......................... 388,984 1,556,046 1,945,030 47,768 1981 Aug 93
Fruitland Plaza
Fruitland, MD........................... 312,650 2,744,593 3,057,243 732,410 1973 May 86
Liberty Plaza
Randallstown, MD........................ 2,075,809 8,534,720 10,610,529 1,000,994 1962 May 95
Rising Sun Towne Centre
Rising Sun, MD.......................... 1,161,300 4,394,309 5,555,609 59,224 1998 Jun 99
Maple Village Shopping Center
Ann Arbor, MI........................... 1,625,580 8,208,078 9,833,658 1,201,784 1965 Oct 94
Mountain Jack's #210303
Dearborn Heights, MI.................... 287,462 1,149,835 1,437,297 35,298 1980 Dec 92
<CAPTION>
COLUMN A COLUMN I
- ----------------------------------------- ----------------
LIFE ON WHICH
DEPRECIATED
IN LATEST
DESCRIPTION INCOME STATEMENT
- ----------- ----------------
<S> <C>
RETAIL
Highland Commons
Glasgow, KY............................. 40 Years
J*Town Center
Jeffersontown, KY....................... 40 Years
Mist Lake Plaza
Lexington, KY........................... 40 Years
London Marketplace
London, KY.............................. 40 Years
Piccadilly Square
Louisville, KY.......................... 40 Years
Eastgate Shopping Center
Middletown, KY.......................... 40 Years
Lexington Road Plaza
Versailles, KY.......................... 40 Years
Lagniappe Village
New Iberia, LA.......................... 40 Years
Brookshire Grocery Co
West Monroe, LA......................... 40 Years
Fruitland Plaza
Fruitland, MD........................... 35 Years
Liberty Plaza
Randallstown, MD........................ 40 Years
Rising Sun Towne Centre
Rising Sun, MD.......................... 40 Years
Maple Village Shopping Center
Ann Arbor, MI........................... 40 Years
Mountain Jack's #210303
Dearborn Heights, MI.................... 40 Years
</TABLE>
F-37
<PAGE> 66
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III -- REAL ESTATE AND ACCUMULATED DEPRECIATION
DECEMBER 31, 1999
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D
- ----------------------------------------- ------------- ------------------------ ----------------
COST CAPITALIZED
SUBSEQUENT TO
INITIAL COST TO COMPANY ACQUISITION
------------------------ ----------------
BUILDING &
DESCRIPTION ENCUMBERANCES LAND IMPROVEMENTS IMPROVEMENTS
- ----------- ------------- --------- ------------ ----------------
<S> <C> <C> <C> <C>
RETAIL
Farmington Crossroads
Farmington, MI.......................... 1,092,200 4,368,800 68,806
Kindercare #1182
Kalamazoo, MI........................... 119,214 476,915
Delta Center
Lansing, MI............................. 2,405,200 9,620,800 185,485
Hampton Village Centre
Rochester Hills, MI..................... 15,995,007 8,638,500 34,541,500 271,568
Fashion Corners
Saginaw, MI............................. 2,244,800 8,799,200 112,181
Hall Road Crossing
Shelby, MI.............................. 2,595,500 10,382,000 798,438
Southfield Plaza
Southfield, MI.......................... 2,052,995 8,074,406
Delco Plaza
Sterling Heights, MI.................... 1,277,504 5,109,367 46,815
Westland Crossing
Westland, MI............................ 2,046,000 8,184,000 373,800
Roundtree Place
Ypsilanti, MI........................... 7,402,210 2,995,774 11,983,221 59,421
Washtenaw Fountain Plaza
Ypsilanti, MI........................... 1,530,281 6,121,123 361,433
Firstar Bank
Burnsville, MN.......................... 330,888 1,323,798
Unity Professional Bldg
Fridley, MN............................. 5,500,653 2,402,467 9,612,099 59,357
Stillwater
Stillwater, MN.......................... 275,991 120,171 480,682
<CAPTION>
COLUMN A COLUMN E COLUMN F COLUMN G COLUMN H
- ----------------------------------------- ------------------------------------- ------------ ------------ --------
GROSS AMOUNT AT WHICH CARRIED AT
THE CLOSE OF THE PERIOD
-------------------------------------
BUILDING & ACCUMULATED DATE OF DATE
DESCRIPTION LAND IMPROVEMENTS TOTAL DEPRECIATION CONSTRUCTION ACQUIRED
- ----------- --------- ------------ ---------- ------------ ------------ --------
<S> <C> <C> <C> <C> <C> <C>
RETAIL
Farmington Crossroads
Farmington, MI.......................... 1,092,200 4,437,606 5,529,806 446,271 1986 Dec 95
Kindercare #1182
Kalamazoo, MI........................... 119,214 476,915 596,129 14,640 1990 Feb 91
Delta Center
Lansing, MI............................. 2,405,200 9,806,285 12,211,485 988,057 1985 Dec 95
Hampton Village Centre
Rochester Hills, MI..................... 8,638,500 34,813,068 43,451,568 3,466,088 1990 Dec 95
Fashion Corners
Saginaw, MI............................. 2,244,800 8,911,381 11,156,181 896,345 1986 Dec 95
Hall Road Crossing
Shelby, MI.............................. 2,595,500 11,180,438 13,775,938 1,098,252 1985 Dec 95
Southfield Plaza
Southfield, MI.......................... 2,052,995 8,074,406 10,127,401 367,800 1969-70 Feb 98
Delco Plaza
Sterling Heights, MI.................... 1,277,504 5,156,182 6,433,686 392,637 1970,73 Nov 96
Westland Crossing
Westland, MI............................ 2,046,000 8,557,800 10,603,800 27,274 1986 Nov 99
Roundtree Place
Ypsilanti, MI........................... 2,995,774 12,042,642 15,038,416 364,621 1998 Jul 98
Washtenaw Fountain Plaza
Ypsilanti, MI........................... 1,530,281 6,482,556 8,012,837 1,297,882 1989 Oct 92
Firstar Bank
Burnsville, MN.......................... 330,888 1,323,798 1,654,686 40,637 1975 Aug 97
Unity Professional Bldg
Fridley, MN............................. 2,402,467 9,671,456 12,073,923 294,797 1991 May 96
Stillwater
Stillwater, MN.......................... 120,171 480,682 600,853 15,087 1985 Jul 91
<CAPTION>
COLUMN A COLUMN I
- ----------------------------------------- ----------------
LIFE ON WHICH
DEPRECIATED
IN LATEST
DESCRIPTION INCOME STATEMENT
- ----------- ----------------
<S> <C>
RETAIL
Farmington Crossroads
Farmington, MI.......................... 40 Years
Kindercare #1182
Kalamazoo, MI........................... 40 Years
Delta Center
Lansing, MI............................. 40 Years
Hampton Village Centre
Rochester Hills, MI..................... 40 Years
Fashion Corners
Saginaw, MI............................. 40 Years
Hall Road Crossing
Shelby, MI.............................. 40 Years
Southfield Plaza
Southfield, MI.......................... 40 Years
Delco Plaza
Sterling Heights, MI.................... 40 Years
Westland Crossing
Westland, MI............................ 40 Years
Roundtree Place
Ypsilanti, MI........................... 40 Years
Washtenaw Fountain Plaza
Ypsilanti, MI........................... 40 Years
Firstar Bank
Burnsville, MN.......................... 40 Years
Unity Professional Bldg
Fridley, MN............................. 40 Years
Stillwater
Stillwater, MN.......................... 40 Years
</TABLE>
F-38
<PAGE> 67
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III -- REAL ESTATE AND ACCUMULATED DEPRECIATION
DECEMBER 31, 1999
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D
- ----------------------------------------- ------------- ------------------------ ----------------
COST CAPITALIZED
SUBSEQUENT TO
INITIAL COST TO COMPANY ACQUISITION
------------------------ ----------------
BUILDING &
DESCRIPTION ENCUMBERANCES LAND IMPROVEMENTS IMPROVEMENTS
- ----------- ------------- --------- ------------ ----------------
<S> <C> <C> <C> <C>
RETAIL
Factory Merchants Branson
Branson, MO............................. 17,669 22,312,120 11,911,121
Kindercare #162
Fenton, MO.............................. 45,020 180,008
Kindercare #577
High Ridge, MO.......................... 54,942 219,786
Factory Outlet Village Osage Beach
Osage Beach, MO......................... 6,978,714 27,259,675 7,810,582
Stanly County Plaza
Albemarle, NC........................... 600,418 2,401,671
Village Marketplace
Ashboro, NC............................. 1,155,652 4,622,609
Shopping Center -- Goldsboro
Goldsboro, NC........................... 181,998 1,014,432 55,222
Pizza Hut
Greenville, NC.......................... 40,065 225,958
Foothills Market
Jonesville, NC.......................... 644,555 2,578,295
Chapel Square SC
Kannapolis, NC.......................... 2,245,127 918,460 3,673,918
Piney Grove Plaza
Kernersville, NC........................ 493,023 1,972,092
Kinston Pointe
Kinston, NC............................. 2,235,052 8,940,354 1,100
Granville Corners
Oxford, NC.............................. 2,185,356 8,741,261
Roxboro Square
Roxboro, NC............................. 1,448,313 5,793,290 35,857
<CAPTION>
COLUMN A COLUMN E COLUMN F COLUMN G COLUMN H
- ----------------------------------------- ------------------------------------- ------------ ------------ --------
GROSS AMOUNT AT WHICH CARRIED AT
THE CLOSE OF THE PERIOD
-------------------------------------
BUILDING & ACCUMULATED DATE OF DATE
DESCRIPTION LAND IMPROVEMENTS TOTAL DEPRECIATION CONSTRUCTION ACQUIRED
- ----------- --------- ------------ ---------- ------------ ------------ --------
<S> <C> <C> <C> <C> <C> <C>
RETAIL
Factory Merchants Branson
Branson, MO............................. 17,669 34,223,241 34,240,910 5,392,702 1988 Nov 93
Kindercare #162
Fenton, MO.............................. 45,020 180,008 225,028 5,526 1977 Dec 92
Kindercare #577
High Ridge, MO.......................... 54,942 219,786 274,728 6,747 1980 Dec 92
Factory Outlet Village Osage Beach
Osage Beach, MO......................... 6,978,714 35,070,257 42,048,971 6,305,127 1987 Jan 93
Stanly County Plaza
Albemarle, NC........................... 600,418 2,401,671 3,002,089 75,379 1988 Mar 94
Village Marketplace
Ashboro, NC............................. 1,155,652 4,622,609 5,778,261 145,086 1988 Apr 95
Shopping Center -- Goldsboro
Goldsboro, NC........................... 181,998 1,069,654 1,251,652 404,245 1973 May 86
Pizza Hut
Greenville, NC.......................... 40,065 225,958 266,023 99,508 1973 May 86
Foothills Market
Jonesville, NC.......................... 644,555 2,578,295 3,222,850 77,732 1988 Jun 95
Chapel Square SC
Kannapolis, NC.......................... 918,460 3,673,918 4,592,378 110,551 1992 Dec 94
Piney Grove Plaza
Kernersville, NC........................ 493,023 1,972,092 2,465,115 61,896 1988 Jun 95
Kinston Pointe
Kinston, NC............................. 2,235,052 8,941,454 11,176,506 269,538 1991 Jul 95
Granville Corners
Oxford, NC.............................. 2,185,356 8,741,261 10,926,617 263,538 1991 Feb 96
Roxboro Square
Roxboro, NC............................. 1,448,313 5,829,147 7,277,460 182,129 1989 Jun 95
<CAPTION>
COLUMN A COLUMN I
- ----------------------------------------- ----------------
LIFE ON WHICH
DEPRECIATED
IN LATEST
DESCRIPTION INCOME STATEMENT
- ----------- ----------------
<S> <C>
RETAIL
Factory Merchants Branson
Branson, MO............................. 40 Years
Kindercare #162
Fenton, MO.............................. 40 Years
Kindercare #577
High Ridge, MO.......................... 40 Years
Factory Outlet Village Osage Beach
Osage Beach, MO......................... 40 Years
Stanly County Plaza
Albemarle, NC........................... 40 Years
Village Marketplace
Ashboro, NC............................. 40 Years
Shopping Center -- Goldsboro
Goldsboro, NC........................... 35 Years
Pizza Hut
Greenville, NC.......................... 35 Years
Foothills Market
Jonesville, NC.......................... 40 Years
Chapel Square SC
Kannapolis, NC.......................... 40 Years
Piney Grove Plaza
Kernersville, NC........................ 40 Years
Kinston Pointe
Kinston, NC............................. 40 Years
Granville Corners
Oxford, NC.............................. 40 Years
Roxboro Square
Roxboro, NC............................. 40 Years
</TABLE>
F-39
<PAGE> 68
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III -- REAL ESTATE AND ACCUMULATED DEPRECIATION
DECEMBER 31, 1999
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D
- ----------------------------------------- ------------- ------------------------ ----------------
COST CAPITALIZED
SUBSEQUENT TO
INITIAL COST TO COMPANY ACQUISITION
------------------------ ----------------
BUILDING &
DESCRIPTION ENCUMBERANCES LAND IMPROVEMENTS IMPROVEMENTS
- ----------- ------------- --------- ------------ ----------------
<S> <C> <C> <C> <C>
RETAIL
Siler Crossing
Siler City, NC.......................... 1,779,566 7,118,099
Crossroads SC
Statesville, NC......................... 5,261,636 21,177,391
Thomasville Crossing
Thomasville, NC......................... 1,604,339 6,417,145
Anson Station
Wadesboro, NC........................... 1,844,644 7,378,756 13,250
Roanoke Landing
Williamston, NC......................... 6,097,611 2,519,288 10,077,339 42,363
Shopping Center -- Wilson
Wilson, NC.............................. 315,000 1,780,370 71,456
Stratford Commons
Winston-Salem, NC....................... 6,144,961 2,262,130 9,045,975
Northern Auto #138
Grand Island, NE........................ 125,317 501,501
Northern Auto #125
Hastings, NE............................ 89,784 358,964
Kmart #6256
Omaha, NE............................... 532,124 2,128,701 18,949
Laurel Square
Bricktown, NJ........................... 3,261,701 9,283,302 759,174
Hamilton Plaza
Hamilton, NJ............................ 1,124,415 4,513,658 230,258
Bennetts Mills Plaza
Jackson, NJ............................. 1,794,122 6,399,888 73,746
Six Flags Factory Outlet
Jackson, NJ............................. 889,214 1,249,781 29,908,881
<CAPTION>
COLUMN A COLUMN E COLUMN F COLUMN G COLUMN H
- ----------------------------------------- ------------------------------------- ------------ ------------ --------
GROSS AMOUNT AT WHICH CARRIED AT
THE CLOSE OF THE PERIOD
-------------------------------------
BUILDING & ACCUMULATED DATE OF DATE
DESCRIPTION LAND IMPROVEMENTS TOTAL DEPRECIATION CONSTRUCTION ACQUIRED
- ----------- --------- ------------ ---------- ------------ ------------ --------
<S> <C> <C> <C> <C> <C> <C>
RETAIL
Siler Crossing
Siler City, NC.......................... 1,779,566 7,118,099 8,897,665 214,602 1988 Jun 95
Crossroads SC
Statesville, NC......................... 5,261,636 21,177,391 26,439,027 634,519 1991 Feb 96
Thomasville Crossing
Thomasville, NC......................... 1,604,339 6,417,145 8,021,484 193,469 1996 Apr 97
Anson Station
Wadesboro, NC........................... 1,844,644 7,392,006 9,236,650 222,472 1988 Aug 95
Roanoke Landing
Williamston, NC......................... 2,519,288 10,119,702 12,638,990 304,214 1991 Jan 96
Shopping Center -- Wilson
Wilson, NC.............................. 315,000 1,851,826 2,166,826 705,874 1973 May 86
Stratford Commons
Winston-Salem, NC....................... 2,262,130 9,045,975 11,308,105 266,790 1995 Dec 96
Northern Auto #138
Grand Island, NE........................ 125,317 501,501 626,818 15,394 1988 Dec 92
Northern Auto #125
Hastings, NE............................ 89,784 358,964 448,748 11,021 1988 Dec 92
Kmart #6256
Omaha, NE............................... 532,124 2,147,650 2,679,774 65,711 1981 Aug 93
Laurel Square
Bricktown, NJ........................... 3,261,701 10,042,476 13,304,177 1,924,424 1973 Jul 92
Hamilton Plaza
Hamilton, NJ............................ 1,124,415 4,743,916 5,868,331 714,422 1972 May 94
Bennetts Mills Plaza
Jackson, NJ............................. 1,794,122 6,473,634 8,267,756 852,673 1988 Sep 94
Six Flags Factory Outlet
Jackson, NJ............................. 889,214 31,158,662 32,047,876 1,806,843 1997 Apr 97
<CAPTION>
COLUMN A COLUMN I
- ----------------------------------------- ----------------
LIFE ON WHICH
DEPRECIATED
IN LATEST
DESCRIPTION INCOME STATEMENT
- ----------- ----------------
<S> <C>
RETAIL
Siler Crossing
Siler City, NC.......................... 40 Years
Crossroads SC
Statesville, NC......................... 40 Years
Thomasville Crossing
Thomasville, NC......................... 40 Years
Anson Station
Wadesboro, NC........................... 40 Years
Roanoke Landing
Williamston, NC......................... 40 Years
Shopping Center -- Wilson
Wilson, NC.............................. 35 Years
Stratford Commons
Winston-Salem, NC....................... 40 Years
Northern Auto #138
Grand Island, NE........................ 40 Years
Northern Auto #125
Hastings, NE............................ 40 Years
Kmart #6256
Omaha, NE............................... 40 Years
Laurel Square
Bricktown, NJ........................... 40 Years
Hamilton Plaza
Hamilton, NJ............................ 40 Years
Bennetts Mills Plaza
Jackson, NJ............................. 40 Years
Six Flags Factory Outlet
Jackson, NJ............................. 40 Years
</TABLE>
F-40
<PAGE> 69
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III -- REAL ESTATE AND ACCUMULATED DEPRECIATION
DECEMBER 31, 1999
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D
- ----------------------------------------- ------------- ------------------------ ----------------
COST CAPITALIZED
SUBSEQUENT TO
INITIAL COST TO COMPANY ACQUISITION
------------------------ ----------------
BUILDING &
DESCRIPTION ENCUMBERANCES LAND IMPROVEMENTS IMPROVEMENTS
- ----------- ------------- --------- ------------ ----------------
<S> <C> <C> <C> <C>
RETAIL
Middletown Plaza
Middletown, NJ.......................... 1,204,829 1,479,487 3,943,587
Institute for Defense Analysis
Princeton, NJ........................... 1,389,460
Roxbury Township NJ
Roxbury, NJ............................. 314,576
Kmart #7197
Somerville, NJ.......................... 462,313 1,849,393
Tinton Falls Plaza
Tinton Falls, NJ........................ 1,884,325 6,308,392 147,173
Galleria Commons
Henderson, NV........................... 6,854,959 27,590,493 10,001
Renaissance Center East
Las Vegas, NV........................... 2,543,856 10,175,427 218,955
Kietzke Center
Reno, NV................................ 3,069,735 12,279,924
University Mall
Canton, NY.............................. 115,079 1,009,902 809,401
Cortlandville
Cortland, NY............................ 236,846 1,439,000 430,013
Kmart Plaza
Dewitt, NY.............................. 942,257 3,769,027 246,904
D & F Plaza
Dunkirk, NY............................. 730,512 2,156,542 1,544,172
Shopping Center -- Elmira
Elmira, NY.............................. 110,116 891,205
Genesse Valley
Genesse, NY............................. 9,051,617 3,636,064 14,544,101 12,812
<CAPTION>
COLUMN A COLUMN E COLUMN F COLUMN G COLUMN H
- ----------------------------------------- ------------------------------------- ------------ ------------ --------
GROSS AMOUNT AT WHICH CARRIED AT
THE CLOSE OF THE PERIOD
-------------------------------------
BUILDING & ACCUMULATED DATE OF DATE
DESCRIPTION LAND IMPROVEMENTS TOTAL DEPRECIATION CONSTRUCTION ACQUIRED
- ----------- --------- ------------ ---------- ------------ ------------ --------
<S> <C> <C> <C> <C> <C> <C>
RETAIL
Middletown Plaza
Middletown, NJ.......................... 1,204,829 5,423,074 6,627,903 2,136,865 1972 Jan 75
Institute for Defense Analysis
Princeton, NJ........................... 1,389,460 1,389,460 750,712 1982 May 74
Roxbury Township NJ
Roxbury, NJ............................. 314,576 314,576 Dec 97
Kmart #7197
Somerville, NJ.......................... 462,313 1,849,393 2,311,706 56,773 1982 Aug 93
Tinton Falls Plaza
Tinton Falls, NJ........................ 1,884,325 6,455,565 8,339,890 308,660 1953 Jan 98
Galleria Commons
Henderson, NV........................... 6,854,959 27,600,494 34,455,453 826,752 1997-98 Jun 98
Renaissance Center East
Las Vegas, NV........................... 2,543,856 10,394,382 12,938,238 858,384 1981 Oct 96
Kietzke Center
Reno, NV................................ 3,069,735 12,279,924 15,349,659 362,143 1974 Jun 97
University Mall
Canton, NY.............................. 115,079 1,819,303 1,934,382 1,037,081 1967 Jan 76
Cortlandville
Cortland, NY............................ 236,846 1,869,013 2,105,859 548,147 1984 Aug 87
Kmart Plaza
Dewitt, NY.............................. 942,257 4,015,931 4,958,188 645,729 1970 Aug 93
D & F Plaza
Dunkirk, NY............................. 730,512 3,700,714 4,431,226 1,264,550 1967 Jan 86
Shopping Center -- Elmira
Elmira, NY.............................. 110,116 891,205 1,001,321 242,297 1976 Feb 89
Genesse Valley
Genesse, NY............................. 3,636,064 14,556,913 18,192,977 439,731 1993 Jul 98
<CAPTION>
COLUMN A COLUMN I
- ----------------------------------------- ----------------
LIFE ON WHICH
DEPRECIATED
IN LATEST
DESCRIPTION INCOME STATEMENT
- ----------- ----------------
<S> <C>
RETAIL
Middletown Plaza
Middletown, NJ.......................... 40 Years
Institute for Defense Analysis
Princeton, NJ........................... 35 Years
Roxbury Township NJ
Roxbury, NJ.............................
Kmart #7197
Somerville, NJ.......................... 40 Years
Tinton Falls Plaza
Tinton Falls, NJ........................ 40 Years
Galleria Commons
Henderson, NV........................... 40 Years
Renaissance Center East
Las Vegas, NV........................... 40 Years
Kietzke Center
Reno, NV................................ 40 Years
University Mall
Canton, NY.............................. 40 Years
Cortlandville
Cortland, NY............................ 35 Years
Kmart Plaza
Dewitt, NY.............................. 40 Years
D & F Plaza
Dunkirk, NY............................. 40 Years
Shopping Center -- Elmira
Elmira, NY.............................. 40 Years
Genesse Valley
Genesse, NY............................. 40 Years
</TABLE>
F-41
<PAGE> 70
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III -- REAL ESTATE AND ACCUMULATED DEPRECIATION
DECEMBER 31, 1999
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D
- ----------------------------------------- ------------- ------------------------ ----------------
COST CAPITALIZED
SUBSEQUENT TO
INITIAL COST TO COMPANY ACQUISITION
------------------------ ----------------
BUILDING &
DESCRIPTION ENCUMBERANCES LAND IMPROVEMENTS IMPROVEMENTS
- ----------- ------------- --------- ------------ ----------------
<S> <C> <C> <C> <C>
RETAIL
Pyramid Mall
Geneva, NY.............................. 2,175,221 8,700,884 130,112
Shopping Center -- Gloversville
Gloversville, NY........................ 139,429 524,517 104,564
Mckinley Plaza
Hamburg, NY............................. 1,246,680 4,986,720 123,938
1 North Central Avenue
Hartsdale, NY........................... 18,663
Hornell Plaza
Hornell, NY............................. 164,900 20,852,444
Cayuga Plaza
Ithaca, NY.............................. 1,397,708 5,591,832 504,127
Shops @ Seneca Mall
Liverpool, NY........................... 1,545,838 6,183,353 1,012,551
Transit Road Plaza
Lockport, NY............................ 424,634 1,698,537 411,938
Shopping Center
Marcy, NY -- MARCY...................... 400,000 2,231,817 94,207
Wallkill Plaza
Middletown, NY.......................... 2,745,200 9,660,800 148,852
Monroe Shoprite Plaza
Monroe, NY.............................. 1,026,477 8,642,364 80,406
Rockland Plaza
Nanuet, NY.............................. 3,990,842 3,570,410 5,310,035
South Plaza
Norwich, NY............................. 508,013 1,051,638 1,608,758
Westgate Plaza -- Oneonta
Oneonta, NY............................. 142,821 1,192,103 302,942
<CAPTION>
COLUMN A COLUMN E COLUMN F COLUMN G COLUMN H
- ----------------------------------------- ------------------------------------- ------------ ------------ --------
GROSS AMOUNT AT WHICH CARRIED AT
THE CLOSE OF THE PERIOD
-------------------------------------
BUILDING & ACCUMULATED DATE OF DATE
DESCRIPTION LAND IMPROVEMENTS TOTAL DEPRECIATION CONSTRUCTION ACQUIRED
- ----------- --------- ------------ ---------- ------------ ------------ --------
<S> <C> <C> <C> <C> <C> <C>
RETAIL
Pyramid Mall
Geneva, NY.............................. 2,175,221 8,830,996 11,006,217 1,418,403 1973 Aug 93
Shopping Center -- Gloversville
Gloversville, NY........................ 139,429 629,081 768,510 171,854 1974 Dec 88
Mckinley Plaza
Hamburg, NY............................. 1,246,680 5,110,658 6,357,338 1,028,112 1991 Jun 92
1 North Central Avenue
Hartsdale, NY........................... 18,663 18,663 Jul 72
Hornell Plaza
Hornell, NY............................. 164,900 20,852,444 21,017,344 630,503 1995 Jul 98
Cayuga Plaza
Ithaca, NY.............................. 1,397,708 6,095,959 7,493,667 1,649,264 1969 May 89
Shops @ Seneca Mall
Liverpool, NY........................... 1,545,838 7,195,904 8,741,742 1,062,462 1971 Aug 93
Transit Road Plaza
Lockport, NY............................ 424,634 2,110,475 2,535,109 360,284 1971 Aug 93
Shopping Center
Marcy, NY -- MARCY...................... 400,000 2,326,024 2,726,024 906,986 1971 May 86
Wallkill Plaza
Middletown, NY.......................... 2,745,200 9,809,652 12,554,852 891,264 1986 Dec 95
Monroe Shoprite Plaza
Monroe, NY.............................. 1,026,477 8,722,770 9,749,247 481,973 1972 Aug 97
Rockland Plaza
Nanuet, NY.............................. 3,990,842 8,880,445 12,871,287 3,893,591 1963 Jan 83
South Plaza
Norwich, NY............................. 508,013 2,660,396 3,168,409 1,204,303 1967 Apr 83
Westgate Plaza -- Oneonta
Oneonta, NY............................. 142,821 1,495,045 1,637,866 632,436 1967 Jan 84
<CAPTION>
COLUMN A COLUMN I
- ----------------------------------------- ----------------
LIFE ON WHICH
DEPRECIATED
IN LATEST
DESCRIPTION INCOME STATEMENT
- ----------- ----------------
<S> <C>
RETAIL
Pyramid Mall
Geneva, NY.............................. 40 Years
Shopping Center -- Gloversville
Gloversville, NY........................ 40 Years
Mckinley Plaza
Hamburg, NY............................. 40 Years
1 North Central Avenue
Hartsdale, NY...........................
Hornell Plaza
Hornell, NY............................. 40 Years
Cayuga Plaza
Ithaca, NY.............................. 40 Years
Shops @ Seneca Mall
Liverpool, NY........................... 40 Years
Transit Road Plaza
Lockport, NY............................ 40 Years
Shopping Center
Marcy, NY -- MARCY...................... 35 Years
Wallkill Plaza
Middletown, NY.......................... 40 Years
Monroe Shoprite Plaza
Monroe, NY.............................. 40 Years
Rockland Plaza
Nanuet, NY.............................. 40 Years
South Plaza
Norwich, NY............................. 40 Years
Westgate Plaza -- Oneonta
Oneonta, NY............................. 40 Years
</TABLE>
F-42
<PAGE> 71
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III -- REAL ESTATE AND ACCUMULATED DEPRECIATION
DECEMBER 31, 1999
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D
- ----------------------------------------- ------------- ------------------------ ----------------
COST CAPITALIZED
SUBSEQUENT TO
INITIAL COST TO COMPANY ACQUISITION
------------------------ ----------------
BUILDING &
DESCRIPTION ENCUMBERANCES LAND IMPROVEMENTS IMPROVEMENTS
- ----------- ------------- --------- ------------ ----------------
<S> <C> <C> <C> <C>
RETAIL
Oswego Plaza
Oswego, NY.............................. 250,000 1,168,027 2,591,920
Mohawk
Rome, NY................................ 93,341 483,405 231,437
Mohawk Acres
Rome, NY................................ 241,606 1,268,890 1,608,903
Price Chopper Plaza
Rome, NY................................ 933,792 3,735,170
Westgate Manor Plaza
Rome, NY -- ROME........................ 211,711 391,982 958,632
Northland
Watertown, NY........................... 16,182 255,557 836,600
Ashland Square
Ashland, OH............................. 1,990,823 7,963,282
Harbor Plaza
Ashtabula, OH........................... 388,997 1,456,108 253,099
Belpre Plaza
Belpre, OH.............................. 2,066,121 145,088
Southwood Plaza
Bowling Green, OH....................... 707,073 1,537,519 879,270
Lakewood Village
Celina, OH.............................. 937,772 3,751,086 27,120
Brentwood Plaza
Cincinnati, OH.......................... 2,027,969 8,222,875 670,189
Delhi Shopping Center
Cincinnati, OH.......................... 2,300,029 9,218,117 30,518
Western Village Shopping Center
Cincinnati, OH.......................... 1,321,484 5,300,935 157,180
<CAPTION>
COLUMN A COLUMN E COLUMN F COLUMN G COLUMN H
- ----------------------------------------- ------------------------------------- ------------ ------------ --------
GROSS AMOUNT AT WHICH CARRIED AT
THE CLOSE OF THE PERIOD
-------------------------------------
BUILDING & ACCUMULATED DATE OF DATE
DESCRIPTION LAND IMPROVEMENTS TOTAL DEPRECIATION CONSTRUCTION ACQUIRED
- ----------- --------- ------------ ---------- ------------ ------------ --------
<S> <C> <C> <C> <C> <C> <C>
RETAIL
Oswego Plaza
Oswego, NY.............................. 250,000 3,759,947 4,009,947 1,663,903 1966 Jan 77
Mohawk
Rome, NY................................ 93,341 714,842 808,183 303,206 1965 Jan 84
Mohawk Acres
Rome, NY................................ 241,606 2,877,793 3,119,399 1,036,040 1965 Feb 84
Price Chopper Plaza
Rome, NY................................ 933,792 3,735,170 4,668,962 595,631 1988 Aug 93
Westgate Manor Plaza
Rome, NY -- ROME........................ 211,711 1,350,614 1,562,325 371,378 1961 Jan 86
Northland
Watertown, NY........................... 16,182 1,092,157 1,108,339 396,864 1962 Jan 73
Ashland Square
Ashland, OH............................. 1,990,823 7,963,282 9,954,105 240,082 1990 Oct 93
Harbor Plaza
Ashtabula, OH........................... 388,997 1,709,207 2,098,204 411,148 1988 Feb 91
Belpre Plaza
Belpre, OH.............................. 2,211,209 2,211,209 703,524 1969 Jun 88
Southwood Plaza
Bowling Green, OH....................... 707,073 2,416,789 3,123,862 940,449 1961 May 90
Lakewood Village
Celina, OH.............................. 937,772 3,778,206 4,715,978 128,656 1990 Mar 94
Brentwood Plaza
Cincinnati, OH.......................... 2,027,969 8,893,064 10,921,033 1,231,973 1957 May 94
Delhi Shopping Center
Cincinnati, OH.......................... 2,300,029 9,248,635 11,548,664 819,605 1973,85,87 May 96
Western Village Shopping Center
Cincinnati, OH.......................... 1,321,484 5,458,115 6,779,599 766,238 1960 May 94
<CAPTION>
COLUMN A COLUMN I
- ----------------------------------------- ----------------
LIFE ON WHICH
DEPRECIATED
IN LATEST
DESCRIPTION INCOME STATEMENT
- ----------- ----------------
<S> <C>
RETAIL
Oswego Plaza
Oswego, NY.............................. 40 Years
Mohawk
Rome, NY................................ 40 Years
Mohawk Acres
Rome, NY................................ 40 Years
Price Chopper Plaza
Rome, NY................................ 40 Years
Westgate Manor Plaza
Rome, NY -- ROME........................ 40 Years
Northland
Watertown, NY........................... 40 Years
Ashland Square
Ashland, OH............................. 40 Years
Harbor Plaza
Ashtabula, OH........................... 40 Years
Belpre Plaza
Belpre, OH.............................. 40 Years
Southwood Plaza
Bowling Green, OH....................... 40 Years
Lakewood Village
Celina, OH.............................. 40 Years
Brentwood Plaza
Cincinnati, OH.......................... 40 Years
Delhi Shopping Center
Cincinnati, OH.......................... 40 Years
Western Village Shopping Center
Cincinnati, OH.......................... 40 Years
</TABLE>
F-43
<PAGE> 72
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III -- REAL ESTATE AND ACCUMULATED DEPRECIATION
DECEMBER 31, 1999
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D
- ----------------------------------------- ------------- ------------------------ ----------------
COST CAPITALIZED
SUBSEQUENT TO
INITIAL COST TO COMPANY ACQUISITION
------------------------ ----------------
BUILDING &
DESCRIPTION ENCUMBERANCES LAND IMPROVEMENTS IMPROVEMENTS
- ----------- ------------- --------- ------------ ----------------
<S> <C> <C> <C> <C>
RETAIL
Crown Point Shopping Center
Columbus, OH............................ 7,706,368 2,881,681 7,958,319 8,564
River Run Centre
Coshocton, OH........................... 2,740,831 1,050,261 4,201,106
South Towne Centre
Dayton, OH.............................. 4,737,368 9,636,943 1,598,843
Heritage Square
Dover, OH............................... 1,749,182 7,011,927 59,707
Midway Crossing
Elyria, OH.............................. 1,944,200 7,776,800 192,574
Fairfield Mall
Fairfield, OH........................... 1,287,649 1,685,919 228,983
Silver Bridge Plaza
Gallipolis, OH.......................... 919,022 3,197,673 1,500,228
Shopping Center -- Genoa
Genoa, OH............................... 96,001 1,016,349
Parkway Plaza
Maumee, OH.............................. 950,667 2,069,921 476,756
New Boston Shopping Center
New Boston, OH.......................... 2,102,371 9,176,918 128,373
Market Place
Piqua, OH............................... 597,923 3,738,164 403,895
Brice Park Shopping Center
Reynoldsburg, OH........................ 4,789,304 4,854,414 10,204,698 9,469
Central Ave Market Place
Toledo, OH.............................. 1,046,480 1,769,207 381,861
Greentree Shopping Center
Upper Arlington, OH..................... 6,507,325 3,379,200 6,860,800
<CAPTION>
COLUMN A COLUMN E COLUMN F COLUMN G COLUMN H
- ----------------------------------------- ------------------------------------- ------------ ------------ --------
GROSS AMOUNT AT WHICH CARRIED AT
THE CLOSE OF THE PERIOD
-------------------------------------
BUILDING & ACCUMULATED DATE OF DATE
DESCRIPTION LAND IMPROVEMENTS TOTAL DEPRECIATION CONSTRUCTION ACQUIRED
- ----------- --------- ------------ ---------- ------------ ------------ --------
<S> <C> <C> <C> <C> <C> <C>
RETAIL
Crown Point Shopping Center
Columbus, OH............................ 2,881,681 7,966,883 10,848,564 333,131 1980-85,97 Jul 98
River Run Centre
Coshocton, OH........................... 1,050,261 4,201,106 5,251,367 126,657 1992 Jul 98
South Towne Centre
Dayton, OH.............................. 4,737,368 11,235,786 15,973,154 2,445,217 1972 Mar 92
Heritage Square
Dover, OH............................... 1,749,182 7,071,634 8,820,816 1,174,016 1959 Aug 93
Midway Crossing
Elyria, OH.............................. 1,944,200 7,969,374 9,913,574 798,237 1986 Dec 95
Fairfield Mall
Fairfield, OH........................... 1,287,649 1,914,902 3,202,551 447,995 1978 May 90
Silver Bridge Plaza
Gallipolis, OH.......................... 919,022 4,697,901 5,616,923 2,040,760 1972 Dec 86
Shopping Center -- Genoa
Genoa, OH............................... 96,001 1,016,349 1,112,350 223,563 1987 Mar 91
Parkway Plaza
Maumee, OH.............................. 950,667 2,546,677 3,497,344 661,930 1955 Sep 89
New Boston Shopping Center
New Boston, OH.......................... 2,102,371 9,305,291 11,407,662 1,599,324 1991 Feb 93
Market Place
Piqua, OH............................... 597,923 4,142,059 4,739,982 1,002,206 1972 Nov 91
Brice Park Shopping Center
Reynoldsburg, OH........................ 4,854,414 10,214,167 15,068,581 437,813 1989-92 Mar 98
Central Ave Market Place
Toledo, OH.............................. 1,046,480 2,151,068 3,197,548 491,833 1968 Aug 90
Greentree Shopping Center
Upper Arlington, OH..................... 3,379,200 6,860,800 10,240,000 285,867 1974,80,91 Jul 98
<CAPTION>
COLUMN A COLUMN I
- ----------------------------------------- ----------------
LIFE ON WHICH
DEPRECIATED
IN LATEST
DESCRIPTION INCOME STATEMENT
- ----------- ----------------
<S> <C>
RETAIL
Crown Point Shopping Center
Columbus, OH............................ 40 Years
River Run Centre
Coshocton, OH........................... 40 Years
South Towne Centre
Dayton, OH.............................. 40 Years
Heritage Square
Dover, OH............................... 40 Years
Midway Crossing
Elyria, OH.............................. 40 Years
Fairfield Mall
Fairfield, OH........................... 40 Years
Silver Bridge Plaza
Gallipolis, OH.......................... 40 Years
Shopping Center -- Genoa
Genoa, OH............................... 40 Years
Parkway Plaza
Maumee, OH.............................. 40 Years
New Boston Shopping Center
New Boston, OH.......................... 40 Years
Market Place
Piqua, OH............................... 40 Years
Brice Park Shopping Center
Reynoldsburg, OH........................ 40 Years
Central Ave Market Place
Toledo, OH.............................. 40 Years
Greentree Shopping Center
Upper Arlington, OH..................... 40 Years
</TABLE>
F-44
<PAGE> 73
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III -- REAL ESTATE AND ACCUMULATED DEPRECIATION
DECEMBER 31, 1999
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D
- ----------------------------------------- ------------- ------------------------ ----------------
COST CAPITALIZED
SUBSEQUENT TO
INITIAL COST TO COMPANY ACQUISITION
------------------------ ----------------
BUILDING &
DESCRIPTION ENCUMBERANCES LAND IMPROVEMENTS IMPROVEMENTS
- ----------- ------------- --------- ------------ ----------------
<S> <C> <C> <C> <C>
RETAIL
Sunfresh (Associated Grocers)
Muskogee, OK............................ 476,864 1,907,694
Bethel Park Plaza
Bethel Park, PA......................... 868,039 9,933,094 929,972
Supervalu/Clearfield
Clearfield, PA.......................... 357,218 1,429,000
Dillsburg Shopping Center
Dillsburg, PA........................... 1,166,376 4,665,505 66,170
Market Street Square
Elizabethtown, PA....................... 3,494,045 13,976,027
Hardees -- Pad
Hanover, PA............................. 400,000
New Garden Shopping Center
Kennett Square, PA...................... 912,130 3,161,495 (17,349)
Stonemill Plaza
Lancaster, PA........................... 1,407,975 5,650,901 90,426
Crossroads Plaza
Mt. Pleasant, PA........................ 384,882 1,040,668 443,627
Acme Market
Philadelphia, PA........................ 227,720 1,398,726
Ivyridge Shopping Center
Philadelphia, PA........................ 1,504,080 6,026,320 924,868
Roosevelt Mall Annex
Philadelphia, PA........................ 159,703 91,798 1,076,586
Roosevelt Mall NE
Philadelphia, PA........................ 1,772,067 2,602,635 6,970,168
Strawbridge's
Philadelphia, PA........................ 605,607 3,923,050
<CAPTION>
COLUMN A COLUMN E COLUMN F COLUMN G COLUMN H
- ----------------------------------------- ------------------------------------- ------------ ------------ --------
GROSS AMOUNT AT WHICH CARRIED AT
THE CLOSE OF THE PERIOD
-------------------------------------
BUILDING & ACCUMULATED DATE OF DATE
DESCRIPTION LAND IMPROVEMENTS TOTAL DEPRECIATION CONSTRUCTION ACQUIRED
- ----------- --------- ------------ ---------- ------------ ------------ --------
<S> <C> <C> <C> <C> <C> <C>
RETAIL
Sunfresh (Associated Grocers)
Muskogee, OK............................ 476,864 1,907,694 2,384,558 58,562 1981 Aug 93
Bethel Park Plaza
Bethel Park, PA......................... 868,039 10,863,066 11,731,105 772,008 1965 May 97
Supervalu/Clearfield
Clearfield, PA.......................... 357,218 1,429,000 1,786,218 43,867 1982 Aug 93
Dillsburg Shopping Center
Dillsburg, PA........................... 1,166,376 4,731,675 5,898,051 374,268 1994 Oct 96
Market Street Square
Elizabethtown, PA....................... 3,494,045 13,976,027 17,470,072 421,358 1993-94 Oct 97
Hardees -- Pad
Hanover, PA............................. 400,000 400,000 24,583 1971 Jul 97
New Garden Shopping Center
Kennett Square, PA...................... 912,130 3,144,146 4,056,276 211,686 1979 Apr 97
Stonemill Plaza
Lancaster, PA........................... 1,407,975 5,741,327 7,149,302 857,646 1988 Jan 94
Crossroads Plaza
Mt. Pleasant, PA........................ 384,882 1,484,295 1,869,177 390,142 1975 Nov 88
Acme Market
Philadelphia, PA........................ 227,720 1,398,726 1,626,446 48,062 1980 Aug 98
Ivyridge Shopping Center
Philadelphia, PA........................ 1,504,080 6,951,188 8,455,268 705,771 1963 Aug 95
Roosevelt Mall Annex
Philadelphia, PA........................ 159,703 1,168,384 1,328,087 663,206 1958 Apr 74
Roosevelt Mall NE
Philadelphia, PA........................ 1,772,067 9,572,803 11,344,870 5,188,787 1964 Jan 64
Strawbridge's
Philadelphia, PA........................ 605,607 3,923,050 4,528,657 3,923,050 1964 Jan 64
<CAPTION>
COLUMN A COLUMN I
- ----------------------------------------- ----------------
LIFE ON WHICH
DEPRECIATED
IN LATEST
DESCRIPTION INCOME STATEMENT
- ----------- ----------------
<S> <C>
RETAIL
Sunfresh (Associated Grocers)
Muskogee, OK............................ 40 Years
Bethel Park Plaza
Bethel Park, PA......................... 40 Years
Supervalu/Clearfield
Clearfield, PA.......................... 40 Years
Dillsburg Shopping Center
Dillsburg, PA........................... 40 Years
Market Street Square
Elizabethtown, PA....................... 40 Years
Hardees -- Pad
Hanover, PA............................. 35 Years
New Garden Shopping Center
Kennett Square, PA...................... 40 Years
Stonemill Plaza
Lancaster, PA........................... 40 Years
Crossroads Plaza
Mt. Pleasant, PA........................ 40 Years
Acme Market
Philadelphia, PA........................ 40 Years
Ivyridge Shopping Center
Philadelphia, PA........................ 40 Years
Roosevelt Mall Annex
Philadelphia, PA........................ 40 Years
Roosevelt Mall NE
Philadelphia, PA........................ 40 Years
Strawbridge's
Philadelphia, PA........................ 35 Years
</TABLE>
F-45
<PAGE> 74
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III -- REAL ESTATE AND ACCUMULATED DEPRECIATION
DECEMBER 31, 1999
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D
- ----------------------------------------- ------------- ------------------------ ----------------
COST CAPITALIZED
SUBSEQUENT TO
INITIAL COST TO COMPANY ACQUISITION
------------------------ ----------------
BUILDING &
DESCRIPTION ENCUMBERANCES LAND IMPROVEMENTS IMPROVEMENTS
- ----------- ------------- --------- ------------ ----------------
<S> <C> <C> <C> <C>
RETAIL
Giant Eagle #637
Pittsburgh, PA.......................... 514,470 2,057,726
Johnstown Galleria
Richland Township, PA................... 3,486,549 1,584,716 6,338,788
St Mary's Plaza
St Mary's, PA........................... 977,711 3,910,842 137,560
Northland Center
State College, PA....................... 1,253,513 5,306,721 84,929
Hampton Square Shopping Center
Upper So Hampton, PA.................... 772,800 2,907,200
Shops at Prospect
West Hempfield, PA...................... 741,941 2,967,765 70,154
York Marketplace
York, PA................................ 3,199,353 12,797,412 1,860,678
Circle Center
Hilton Head Island, SC.................. 4,918,030 1,533,329 6,133,106
Crossroads -- Palmetto
Hilton Head Island, SC.................. 2,446,447 473,111 1,892,443
BI-LO
James Island, SC........................ 379,829 1,519,423
Island Plaza
James Island, SC........................ 2,820,729 11,283,031 38,392
Remount Village
N. Charleston, SC....................... 3,779,830 1,470,352 5,879,355
Congress Crossing
Athens, TN.............................. 1,098,351 6,747,013 84,281
St. Elmo Central
Chattanooga, TN......................... 4,142,785 1,529,587 6,120,555
<CAPTION>
COLUMN A COLUMN E COLUMN F COLUMN G COLUMN H
- ----------------------------------------- ------------------------------------- ------------ ------------ --------
GROSS AMOUNT AT WHICH CARRIED AT
THE CLOSE OF THE PERIOD
-------------------------------------
BUILDING & ACCUMULATED DATE OF DATE
DESCRIPTION LAND IMPROVEMENTS TOTAL DEPRECIATION CONSTRUCTION ACQUIRED
- ----------- --------- ------------ ---------- ------------ ------------ --------
<S> <C> <C> <C> <C> <C> <C>
RETAIL
Giant Eagle #637
Pittsburgh, PA.......................... 514,470 2,057,726 2,572,196 63,170 1982 Aug 93
Johnstown Galleria
Richland Township, PA................... 1,584,716 6,338,788 7,923,504 191,106 1993 Jul 97
St Mary's Plaza
St Mary's, PA........................... 977,711 4,048,402 5,026,113 533,299 1970 Dec 94
Northland Center
State College, PA....................... 1,253,513 5,391,650 6,645,163 1,033,774 1988 Jun 92
Hampton Square Shopping Center
Upper So Hampton, PA.................... 772,800 2,907,200 3,680,000 74,788 1980 Dec 98
Shops at Prospect
West Hempfield, PA...................... 741,941 3,037,919 3,779,860 352,849 1994 Jul 95
York Marketplace
York, PA................................ 3,199,353 14,658,090 17,857,443 1,684,203 1955 May 95
Circle Center
Hilton Head Island, SC.................. 1,533,329 6,133,106 7,666,435 184,906 1989 Mar 94
Crossroads -- Palmetto
Hilton Head Island, SC.................. 473,111 1,892,443 2,365,554 59,396 1994 Oct 95
BI-LO
James Island, SC........................ 379,829 1,519,423 1,899,252 46,643 1982 Aug 93
Island Plaza
James Island, SC........................ 2,820,729 11,321,423 14,142,152 340,391 1993-94 Oct 97
Remount Village
N. Charleston, SC....................... 1,470,352 5,879,355 7,349,707 173,393 1996 Nov 96
Congress Crossing
Athens, TN.............................. 1,098,351 6,831,294 7,929,645 1,367,386 1990 Mar 92
St. Elmo Central
Chattanooga, TN......................... 1,529,587 6,120,555 7,650,142 180,493 1995 Aug 96
<CAPTION>
COLUMN A COLUMN I
- ----------------------------------------- ----------------
LIFE ON WHICH
DEPRECIATED
IN LATEST
DESCRIPTION INCOME STATEMENT
- ----------- ----------------
<S> <C>
RETAIL
Giant Eagle #637
Pittsburgh, PA.......................... 40 Years
Johnstown Galleria
Richland Township, PA................... 40 Years
St Mary's Plaza
St Mary's, PA........................... 40 Years
Northland Center
State College, PA....................... 40 Years
Hampton Square Shopping Center
Upper So Hampton, PA.................... 40 Years
Shops at Prospect
West Hempfield, PA...................... 40 Years
York Marketplace
York, PA................................ 40 Years
Circle Center
Hilton Head Island, SC.................. 40 Years
Crossroads -- Palmetto
Hilton Head Island, SC.................. 40 Years
BI-LO
James Island, SC........................ 40 Years
Island Plaza
James Island, SC........................ 40 Years
Remount Village
N. Charleston, SC....................... 40 Years
Congress Crossing
Athens, TN.............................. 40 Years
St. Elmo Central
Chattanooga, TN......................... 40 Years
</TABLE>
F-46
<PAGE> 75
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III -- REAL ESTATE AND ACCUMULATED DEPRECIATION
DECEMBER 31, 1999
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D
- ----------------------------------------- ------------- ------------------------ ----------------
COST CAPITALIZED
SUBSEQUENT TO
INITIAL COST TO COMPANY ACQUISITION
------------------------ ----------------
BUILDING &
DESCRIPTION ENCUMBERANCES LAND IMPROVEMENTS IMPROVEMENTS
- ----------- ------------- --------- ------------ ----------------
<S> <C> <C> <C> <C>
RETAIL
Winn-Dixie #1932
Chattanooga, TN......................... 591,450 2,365,576
Saddletree Village
Collegedale, TN......................... 1,967,686 685,676 2,900,245
West Towne Square Shopping Center
Elizabethton, TN........................ 529,103 3,880,088 25,139
Greeneville Commons
Greeneville, TN......................... 1,075,200 7,884,800 23,156
Hazel Path Commons
Hendersonville, TN...................... 919,231 3,677,158
Kimball Crossing
Kimball, TN............................. 3,966,352 15,875,659 9,999
First American Bank/Audition Hi-Fi
Kingsport, TN........................... 104,884
Chapman-Ford Crossing
Knoxville, TN........................... 2,367,047 9,507,577 (39,285)
Farrar Place
Manchester, TN.......................... 804,963 3,220,060
Georgetown Square
Murfreesboro, TN........................ 1,166,924 4,674,698 216,576
Apison Crossing
Ooltewah, TN............................ 1,679,125 6,716,542
Madison Street Station
Shelbyville, TN......................... 752,499 3,012,444 203,257
Commerce Central
Tullahoma, TN........................... 8,890,812 3,043,798 12,177,046
Merchant's Central
Winchester, TN.......................... 2,891,062 11,564,219 43,990
<CAPTION>
COLUMN A COLUMN E COLUMN F COLUMN G COLUMN H
- ----------------------------------------- ------------------------------------- ------------ ------------ --------
GROSS AMOUNT AT WHICH CARRIED AT
THE CLOSE OF THE PERIOD
-------------------------------------
BUILDING & ACCUMULATED DATE OF DATE
DESCRIPTION LAND IMPROVEMENTS TOTAL DEPRECIATION CONSTRUCTION ACQUIRED
- ----------- --------- ------------ ---------- ------------ ------------ --------
<S> <C> <C> <C> <C> <C> <C>
RETAIL
Winn-Dixie #1932
Chattanooga, TN......................... 591,450 2,365,576 2,957,026 72,621 1995 Jul 96
Saddletree Village
Collegedale, TN......................... 685,676 2,900,245 3,585,921 85,152 1990 Jun 98
West Towne Square Shopping Center
Elizabethton, TN........................ 529,103 3,905,227 4,434,330 162,980 1970,1998 Jun 98
Greeneville Commons
Greeneville, TN......................... 1,075,200 7,907,956 8,983,156 1,557,779 1990 Mar 92
Hazel Path Commons
Hendersonville, TN...................... 919,231 3,677,158 4,596,389 110,860 1989 Nov 95
Kimball Crossing
Kimball, TN............................. 3,966,352 15,885,658 19,852,010 469,114 1987 Nov 95
First American Bank/Audition Hi-Fi
Kingsport, TN........................... 104,884 104,884 1970 Sep 92
Chapman-Ford Crossing
Knoxville, TN........................... 2,367,047 9,468,292 11,835,339 285,657 1990 Dec 92
Farrar Place
Manchester, TN.......................... 804,963 3,220,060 4,025,023 97,079 1990 Dec 95
Georgetown Square
Murfreesboro, TN........................ 1,166,924 4,891,274 6,058,198 891,499 1986 Sep 93
Apison Crossing
Ooltewah, TN............................ 1,679,125 6,716,542 8,395,667 202,494 1997 Jul 97
Madison Street Station
Shelbyville, TN......................... 752,499 3,215,701 3,968,200 89,401 1985 Oct 95
Commerce Central
Tullahoma, TN........................... 3,043,798 12,177,046 15,220,844 359,108 1995 Aug 96
Merchant's Central
Winchester, TN.......................... 2,891,062 11,608,209 14,499,271 353,109 1997 Dec 97
<CAPTION>
COLUMN A COLUMN I
- ----------------------------------------- ----------------
LIFE ON WHICH
DEPRECIATED
IN LATEST
DESCRIPTION INCOME STATEMENT
- ----------- ----------------
<S> <C>
RETAIL
Winn-Dixie #1932
Chattanooga, TN......................... 40 Years
Saddletree Village
Collegedale, TN......................... 40 Years
West Towne Square Shopping Center
Elizabethton, TN........................ 40 Years
Greeneville Commons
Greeneville, TN......................... 40 Years
Hazel Path Commons
Hendersonville, TN...................... 40 Years
Kimball Crossing
Kimball, TN............................. 40 Years
First American Bank/Audition Hi-Fi
Kingsport, TN........................... 40 Years
Chapman-Ford Crossing
Knoxville, TN........................... 40 Years
Farrar Place
Manchester, TN.......................... 40 Years
Georgetown Square
Murfreesboro, TN........................ 40 Years
Apison Crossing
Ooltewah, TN............................ 40 Years
Madison Street Station
Shelbyville, TN......................... 40 Years
Commerce Central
Tullahoma, TN........................... 40 Years
Merchant's Central
Winchester, TN.......................... 40 Years
</TABLE>
F-47
<PAGE> 76
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III -- REAL ESTATE AND ACCUMULATED DEPRECIATION
DECEMBER 31, 1999
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D
- ----------------------------------------- ------------- ------------------------ ----------------
COST CAPITALIZED
SUBSEQUENT TO
INITIAL COST TO COMPANY ACQUISITION
------------------------ ----------------
BUILDING &
DESCRIPTION ENCUMBERANCES LAND IMPROVEMENTS IMPROVEMENTS
- ----------- ------------- --------- ------------ ----------------
<S> <C> <C> <C> <C>
RETAIL
Bardin Place Center
Arlington, TX........................... 6,733,620 27,101,486
Kmart #7396
De Soto, TX............................. 529,521 2,118,084
Houston II
Houston, TX............................. 71,600 286,239
Houston II
Houston, TX............................. 56,200 224,959
Irving West SC
Irving, TX.............................. 2,940,489 933,850 3,735,400
Kroger #506
Missouri City, TX....................... 390,012 1,560,274
El Chico (Ground Lease)
Temple, TX.............................. 450,886 504,012
Valley Fair Master
West Valley City, UT.................... 17,450,619 6,985,675 27,942,699 1,927,577
Shopping Center -- Colonial Hts
Colonial Heights, VA.................... 290,000 792,441
Pizza Hut -- Pad
Harrisonburg, VA........................ 427,500
Factory Merchants Ft Chiswell
Max Meadows, VA......................... 411,023 1,644,017 1,128,622
Hanover Square Shopping Center
Mechanicsville, VA...................... 1,778,701 7,114,805 210,309
Victorian Square
Midlothian, VA.......................... 3,548,432 14,208,727 135,710
Va-Ky Regional SC
Norton, VA.............................. 2,795,765 11,183,252
<CAPTION>
COLUMN A COLUMN E COLUMN F COLUMN G COLUMN H
- ----------------------------------------- ------------------------------------- ------------ ------------ --------
GROSS AMOUNT AT WHICH CARRIED AT
THE CLOSE OF THE PERIOD
-------------------------------------
BUILDING & ACCUMULATED DATE OF DATE
DESCRIPTION LAND IMPROVEMENTS TOTAL DEPRECIATION CONSTRUCTION ACQUIRED
- ----------- --------- ------------ ---------- ------------ ------------ --------
<S> <C> <C> <C> <C> <C> <C>
RETAIL
Bardin Place Center
Arlington, TX........................... 6,733,620 27,101,486 33,835,106 808,535 1992-93 Oct 97
Kmart #7396
De Soto, TX............................. 529,521 2,118,084 2,647,605 65,022 1980 Aug 93
Houston II
Houston, TX............................. 71,600 286,239 357,839 8,788 1985 Dec 92
Houston II
Houston, TX............................. 56,200 224,959 281,159 6,905 1985 Dec 92
Irving West SC
Irving, TX.............................. 933,850 3,735,400 4,669,250 117,240 1987 Sep 93
Kroger #506
Missouri City, TX....................... 390,012 1,560,274 1,950,286 47,897 1982 Aug 93
El Chico (Ground Lease)
Temple, TX.............................. 450,886 504,012 954,898 15,294 1995 Dec 95
Valley Fair Master
West Valley City, UT.................... 6,985,675 29,870,276 36,855,951 1,258,692 1970 Dec 96
Shopping Center -- Colonial Hts
Colonial Heights, VA.................... 290,000 792,441 1,082,441 309,430 1972 May 86
Pizza Hut -- Pad
Harrisonburg, VA........................ 427,500 427,500 41,732 1969 Jul 96
Factory Merchants Ft Chiswell
Max Meadows, VA......................... 411,023 2,772,639 3,183,662 1,118,197 1989 Nov 93
Hanover Square Shopping Center
Mechanicsville, VA...................... 1,778,701 7,325,114 9,103,815 1,369,835 1991 Jan 93
Victorian Square
Midlothian, VA.......................... 3,548,432 14,344,437 17,892,869 2,093,993 1991 Mar 94
Va-Ky Regional SC
Norton, VA.............................. 2,795,765 11,183,252 13,979,017 335,471 1989 Dec 92
<CAPTION>
COLUMN A COLUMN I
- ----------------------------------------- ----------------
LIFE ON WHICH
DEPRECIATED
IN LATEST
DESCRIPTION INCOME STATEMENT
- ----------- ----------------
<S> <C>
RETAIL
Bardin Place Center
Arlington, TX........................... 40 Years
Kmart #7396
De Soto, TX............................. 40 Years
Houston II
Houston, TX............................. 40 Years
Houston II
Houston, TX............................. 40 Years
Irving West SC
Irving, TX.............................. 40 Years
Kroger #506
Missouri City, TX....................... 40 Years
El Chico (Ground Lease)
Temple, TX.............................. 40 Years
Valley Fair Master
West Valley City, UT.................... 40 Years
Shopping Center -- Colonial Hts
Colonial Heights, VA.................... 35 Years
Pizza Hut -- Pad
Harrisonburg, VA........................ 35 Years
Factory Merchants Ft Chiswell
Max Meadows, VA......................... 40 Years
Hanover Square Shopping Center
Mechanicsville, VA...................... 40 Years
Victorian Square
Midlothian, VA.......................... 40 Years
Va-Ky Regional SC
Norton, VA.............................. 40 Years
</TABLE>
F-48
<PAGE> 77
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III -- REAL ESTATE AND ACCUMULATED DEPRECIATION
DECEMBER 31, 1999
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D
- ----------------------------------------- ------------- ----------------------------- ----------------
COST CAPITALIZED
SUBSEQUENT TO
INITIAL COST TO COMPANY ACQUISITION
----------------------------- ----------------
BUILDING &
DESCRIPTION ENCUMBERANCES LAND IMPROVEMENTS IMPROVEMENTS
- ----------- ------------- ------------ -------------- ----------------
<S> <C> <C> <C> <C>
RETAIL
Cave Spring Corners Shopping Center
Roanoke, VA............................. 1,064,298 4,257,792 24,420
Hunting Hills Shopping Center
Roanoke, VA............................. 4,164,775 1,897,007 6,010,376 9,047
Lakeside Plaza
Salem, VA............................... 1,383,339 5,355,788
Shopping Center -- Spotsylvania
Spotsylvania, VA........................ 250,000 1,363,880 260,466
Lake Drive Plaza
Vinton, VA.............................. 3,727,118 1,432,155 4,616,848 147,496
Ridgeview Centre
Wise, VA................................ 2,707,679 4,417,792 567,515
Moundsville Plaza
Moundsville, WV......................... 228,283 1,989,798 5,139,516
Grand Central Plaza
Parkersburg, WV......................... 4,358,333 153,150
Kmart Plaza
Vienna, WV.............................. 664,121 2,656,483 143,331
------------ ------------ -------------- ------------
$368,994,395 $552,145,683 $2,142,953,711 $185,545,637
============ ============ ============== ============
<CAPTION>
COLUMN A COLUMN E COLUMN F COLUMN G COLUMN H
- ----------------------------------------- ---------------------------------------------- ------------ ------------ --------
GROSS AMOUNT AT WHICH CARRIED AT
THE CLOSE OF THE PERIOD
----------------------------------------------
BUILDING & ACCUMULATED DATE OF DATE
DESCRIPTION LAND IMPROVEMENTS TOTAL DEPRECIATION CONSTRUCTION ACQUIRED
- ----------- ------------ -------------- -------------- ------------ ------------ --------
<S> <C> <C> <C> <C> <C> <C>
RETAIL
Cave Spring Corners Shopping Center
Roanoke, VA............................. 1,064,298 4,282,212 5,346,510 270,890 1969 Jun 97
Hunting Hills Shopping Center
Roanoke, VA............................. 1,897,007 6,019,423 7,916,430 257,599 1989 Apr 98
Lakeside Plaza
Salem, VA............................... 1,383,339 5,355,788 6,739,127 81,963 1989 Apr 99
Shopping Center -- Spotsylvania
Spotsylvania, VA........................ 250,000 1,624,346 1,874,346 563,965 1970 May 86
Lake Drive Plaza
Vinton, VA.............................. 1,432,155 4,764,344 6,196,499 199,143 1976 Feb 98
Ridgeview Centre
Wise, VA................................ 2,707,679 4,985,307 7,692,986 929,166 1990 Jul 92
Moundsville Plaza
Moundsville, WV......................... 228,283 7,129,314 7,357,597 1,224,078 1961 Dec 88
Grand Central Plaza
Parkersburg, WV......................... 4,511,483 4,511,483 1,315,139 1986 Jun 88
Kmart Plaza
Vienna, WV.............................. 664,121 2,799,814 3,463,935 469,066 1975 Feb 93
------------ -------------- -------------- ------------
$552,145,683 $2,328,499,348 $2,880,645,031 $216,274,187
============ ============== ============== ============
<CAPTION>
COLUMN A COLUMN I
- ----------------------------------------- ----------------
LIFE ON WHICH
DEPRECIATED
IN LATEST
DESCRIPTION INCOME STATEMENT
- ----------- ----------------
<S> <C>
RETAIL
Cave Spring Corners Shopping Center
Roanoke, VA............................. 40 Years
Hunting Hills Shopping Center
Roanoke, VA............................. 40 Years
Lakeside Plaza
Salem, VA............................... 40 Years
Shopping Center -- Spotsylvania
Spotsylvania, VA........................ 35 Years
Lake Drive Plaza
Vinton, VA.............................. 40 Years
Ridgeview Centre
Wise, VA................................ 40 Years
Moundsville Plaza
Moundsville, WV......................... 40 Years
Grand Central Plaza
Parkersburg, WV......................... 40 Years
Kmart Plaza
Vienna, WV.............................. 40 Years
</TABLE>
F-49
<PAGE> 78
NEW PLAN EXCEL REALTY TRUST, INC. AND SUBSIDIARIES
SCHEDULE III -- REAL ESTATE AND ACCUMULATED DEPRECIATION
(IN THOUSANDS)
<TABLE>
<CAPTION>
YEAR ENDED FIVE MONTHS ENDED YEAR ENDED
DECEMBER 31, DECEMBER 31, JULY 31,
1999 1998 1998
------------ ----------------- ----------
<S> <C> <C> <C>
[a] Reconciliation of total real estate carrying
value is as follows:
Balance at beginning of year.................. $2,825,469 $1,452,738 $1,277,775
Acquisitions and improvements................. 75,480 40,057 174,963
Allocation of purchase price.................. 4,000 1,332,714 --
Cost of property sold......................... (24,304) (40) --
---------- ---------- ----------
Balance at end of year........................ $2,880,645 $2,825,469 $1,452,738
========== ========== ==========
Total cost for federal income tax purposes at
the end of each year........................ $2,491,717 $2,478,694 $1,452,738
========== ========== ==========
[b] Reconciliation of accumulated depreciation is
as follows:
Balance at beginning of year.................. $ 158,021 $ 136,978 $ 105,866
Depreciation expense.......................... 62,163 21,043 31,112
Deletions -- property sold.................... (3,910) -- --
---------- ---------- ----------
Balance at end of year........................ $ 216,274 $ 158,021 $ 136,978
========== ========== ==========
</TABLE>
F-50
<PAGE> 79
NEW PLAN EXCEL REALTY TRUST AND SUBSIDIARIES
MORTGAGE LOANS ON REAL ESTATE
(AMOUNTS IN THOUSANDS)
SCHEDULE IV
DECEMBER 31, 1999
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D COLUMN E COLUMN F COLUMN G
- ------------------------ -------- --------- ------------------------------ -------- --------- ---------
FINAL FACE FACE CARRYING
INTEREST MATURITY PERIODIC PRIOR AMOUNT OF AMOUNT OF
DESCRIPTION RATE DATE PAYMENT TERMS LIENS MORTGAGES MORTGAGES
----------- -------- --------- ------------------------------ -------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
Purchase money first
mortgage, collateralized
by a shopping center in Interest payable monthly,
Connellsville, PA....... 10% 8/31/2000 balance at maturity $ 5,420 $ 5,180
Purchase money first
mortgage, collateralized
by a shopping center in Interest payable monthly,
Whitesboro, NY.......... 9.38% 7/31/2000 balance at maturity 4,610 4,205
Leasehold mortgage,
collateralized by a
tenant lease in Columbus
Center in Columbus, Interest and principal payable
IN...................... 11.5% 4/30/2004 monthly 259 172
Leasehold mortgage,
collateralized by a
tenant lease in D&F Interest and principal payable
Plaza in Dunkirk, NY.... 12% 5/1/2008 monthly 1,000 820
Purchase money first
mortgage, collateralized
by a shopping center in Interest payable monthly,
Harrisonburg, VA........ 9% 7/22/2000 balance at maturity 794 149
Purchase money first
mortgage, collateralized
by a shopping center in Interest payable quarterly and
New Bern, NC............ 7.2% 5/9/2001 principal payable at maturity 750 750
Purchase money first
mortgage collateralized
by shopping center in Interest payable monthly and
Hanover, PA............. 8.75% 7/23/2001 principal payable at maturity 700 454
Leasehold mortgage
collateralized by a
tenant lease in Shops @
Seneca in Liverpool, Interest and principal payable
NY...................... 10% 5/31/2008 monthly 1,823 1,658
------- -------
$15,356 $13,388
======= =======
</TABLE>
- ---------------
Note: Column H is not applicable
F-51
<PAGE> 80
NEW PLAN EXCEL REALTY TRUST AND SUBSIDIARIES
MORTGAGE LOANS ON REAL ESTATE
(AMOUNTS IN THOUSANDS)
SCHEDULE IV
(CONTINUED)
<TABLE>
<CAPTION>
YEAR ENDED
-----------------------------------------------------
DECEMBER 31, 1999 DECEMBER 31, 1998 JULY 31, 1998
----------------- ----------------- -------------
<S> <C> <C> <C>
Balance, beginning of period................... $13,399 $13,878 $ 23,107
Additions during period:
New loans.................................... 5,168 307 1,322
Reductions during period:
Collection of principal...................... (5,179) (786) (10,551)
------- ------- --------
Balance, end of period......................... $13,388 $13,399 $ 13,878
======= ======= ========
</TABLE>
F-52
<PAGE> 81
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
NEW PLAN EXCEL REALTY TRUST, INC.
(Registrant)
By: /s/ GLENN J. RUFRANO
----------------------------------
Glenn J. Rufrano
President and Chief Executive
Officer
Dated: March 21, 2000
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ WILLIAM NEWMAN Chairman of the Board of March 21, 2000
- --------------------------------------------------- Directors
William Newman
/s/ GLENN J. RUFRANO President and Chief Executive March 21, 2000
- --------------------------------------------------- Officer
Glenn J. Rufrano
/s/ JAMES M. STEUTERMAN Executive Vice President, Chief March 21, 2000
- --------------------------------------------------- Operating Officer and Director
James M. Steuterman
/s/ MICHAEL I. BROWN Controller and Chief Accounting March 21, 2000
- --------------------------------------------------- Officer (principal financial
Michael I. Brown officer)
/s/ DEAN BERNSTEIN Senior Vice President -- Finance March 21, 2000
- --------------------------------------------------- and Multifamily and Director
Dean Bernstein
/s/ RAYMOND H. BOTTORF Director March 21, 2000
- ---------------------------------------------------
Raymond H. Bottorf
/s/ NORMAN GOLD Director March 21, 2000
- ---------------------------------------------------
Norman Gold
/s/ ARNOLD LAUBICH Director March 21, 2000
- ---------------------------------------------------
Arnold Laubich
/s/ MELVIN NEWMAN Director March 21, 2000
- ---------------------------------------------------
Melvin Newman
</TABLE>
<PAGE> 82
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ BRUCE A. STALLER Director March 21, 2000
- ---------------------------------------------------
Bruce A. Staller
/s/ JOHN WETZLER Director March 21, 2000
- ---------------------------------------------------
John Wetzler
/s/ GREGORY WHITE Director March 21, 2000
- ---------------------------------------------------
Gregory White
</TABLE>
<PAGE> 83
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<C> <S>
*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.
*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.
*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.
*3.4 Amendments to the Bylaws of the Company, dated April 21,
1999, filed as Exhibit 3.1 to the Company's Quarterly Report
on Form 10-Q/A for the quarter ended June 30, 1999.
*3.5 Amendments to the Bylaws of the Company, dated June 3, 1999,
filed as Exhibit 3.2 to the Company's Quarterly Report on
Form 10-Q/A for the quarter ended June 30, 1999.
3.6 Amendments to the Bylaws of the Company, dated February 7,
2000.
*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 filed
as Exhibit 4.3 to the Company's Annual Report on Form 10-K/A
for the year ended December 31, 1998.
*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.
*10.1 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.
*10.2 Amendment to the Amended and Restated 1993 Stock Option Plan
of the Company, dated May 28, 1998, dated September 28,
1998, filed as Exhibit 10.4 to the Company's Annual Report
on Form 10-K/A for the year ended December 31, 1998.
*10.3 Amendment to the Amended and Restated 1993 Stock Option Plan
of the Company, dated February 8, 1999, filed as Exhibit
10.5 to the Company's Annual Report on Form 10-K/A for the
year ended December 31, 1998.
10.4 Amendment to the Amended and Restated 1993 Stock Option Plan
of the Company, dated April 21, 1999.
10.5 Amendment to the Amended and Restated 1993 Stock Option Plan
of the Company, dated February 17, 2000.
*10.6 Directors' Amended and Restated 1994 Stock Option Plan of
the Company, dated May 10, 1996, filed as Exhibit 10.8 to
the Company's Annual Report on Form 10-K/A for the year
ended December 31, 1998.
*10.7 Amendment to the Amended and Restated 1994 Directors' Stock
Option Plan of the Company, dated September 28, 1998, filed
as Exhibit 10.9 to the Company's Annual Report on Form
10-K/A for the year ended December 31, 1998.
10.8 Amendment to the Amended and Restated 1994 Directors' Stock
Option Plan of the Company, dated February 17, 2000.
</TABLE>
<PAGE> 84
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<C> <S>
*10.9 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.
*10.10 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.
*10.11 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.
*10.12 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.
10.13 Credit Agreement, dated as of November 17, 1999, by and
among New Plan Excel Realty Trust, Inc., the lenders party
thereto, The Bank of New York, as administrative agent, and
Bank One, NA and BankBoston, N.A., each as co-documentation
agent.
10.14 Guaranty, dated as of November 17, 1999, by and among New
Plan Realty Trust, Excel Realty Trust -- ST, Inc. and The
Bank of New York, as administrative agent.
10.15 Credit Agreement, dated as of November 17, 1999, by and
among New Plan Excel Realty Trust, Inc., the lenders party
thereto, The Bank of New York, as administrative agent, and
Bank One, NA and BankBoston, N.A., each as co-documentation
agent.
10.16 Guaranty, dated as of November 17, 1999, by and among New
Plan Realty Trust, Excel Realty Trust -- ST, Inc. and The
Bank of New York, as administrative agent.
*10.17 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.
*10.18 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.
*10.19 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.
*10.20 Senior Securities Indenture, dated as of March 29, 1995,
between New Plan Realty Trust and The First National Bank of
Boston, as Trustee filed as Exhibit 4.2 to New Plan Realty
Trust's Registration Statement on Form S-3, File No.
33-60045.
*10.21 First Supplemental Indenture, dated as of August 5, 1999, by
and among New Plan Realty Trust, New Plan Excel Realty
Trust, Inc. and State Street Bank and Trust Company filed as
Exhibit 10.2 to the Company's Quarterly Report on Form 10-Q
for the quarter ended September 30, 1999.
*10.22 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.
*10.23 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 First Amendment to Amended and Restated Agreement of Limited
Partnership of Excel Realty Partners, L.P., dated as of
August 20, 1999, by and among New Plan DRP Trust, New Plan
Excel Realty Trust, Inc. and the current and future partners
in the partnership filed as Exhibit 10.3 to the Company's
Quarterly Report on Form 10-Q for the quarter ended
September 30, 1999.
*10.25 Master Separation Agreement, dated as of April 21, 1999,
among New Plan Excel Realty Trust, Inc., ERT Development
Corporation and Excel Legacy Corporation filed as Exhibit
10.1 to the Company's Current Report on Form 8-K dated April
22, 1999.
</TABLE>
<PAGE> 85
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<C> <S>
*10.26 Resignation and Release Agreement, dated as of April 21,
1999, entered into between the Company and Gary B. Sabin
filed as Exhibit 10.2 to the Company's Current Report on
Form 8-K dated April 22, 1999.
*10.27 Resignation and Release Agreement, dated as of April 21,
1999, entered into between the Company and Richard B. Muir
filed as Exhibit 10.3 to the Company's Current Report on
Form 8-K dated April 22, 1999.
*10.28 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.
*10.29 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 19, 1998.
*10.30 First Amendment to Rights Agreement, dated as of February 8,
1999, between the Company and BankBoston, N.A. filed as
Exhibit 4.1 to the Company's Report on Form 8-A/A (Amendment
No. 1) dated May 5, 1999.
*10.31 Dividend Reinvestment and Share Purchase Plan filed as
Exhibit 4.7 to the Company's Registration Statement on Form
S-3, File No. 333-65211.
*10.32 Employment Agreement, dated as of September 17, 1998, by and
between the Company and William Newman, filed as Exhibit
10.39 to the Company's Annual Report on Form 10-K/A for the
year ended December 31, 1998.
*10.33 Employment Agreement, dated as of February 23, 2000, by and
between the Company and Glenn J. Rufrano, filed as Exhibit
10.1 to the Company's Current Report on Form 8-K, dated
March 9, 2000.
*10.34 Employment Agreement, dated as of September 25, 1998, by and
between the Company and James M. Steuterman, filed as
Exhibit 10.43 to the Company's Annual Report on Form 10-K/A
for the year ended December 31, 1998.
*10.35 Employment Agreement, dated as of September 25, 1998, by and
between the Company and Steven F. Siegel, filed as Exhibit
10.45 to the Company's Annual Report on Form 10-K/A for the
year ended December 31, 1998.
10.36 Employment Agreement, dated as of September 25, 1998, by and
between the Company and James DeCicco.
*10.37 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.
*10.38 Agreement, dated as of February 23, 2000, by and between the
Company and Arnold Laubich, filed as Exhibit 10.9 to the
Company's Current Report on Form 8-K, dated March 9, 2000.
10.39 Unconditional Guaranty of Payment and Performance, dated as
of January 28, 2000, by the Company (Pointe Orlando).
*10.40 Unconditional Guaranty of Payment and Performance, dated as
of January 13, 1997, by the Company (Briar Preston Ridge),
filed as Exhibit 10.49 to the Company's Annual Report on
Form 10-K/A for the year ended December 31, 1998.
10.41 Term Loan Agreement, dated as of March 7, 2000, between the
Company and Fleet National Bank
10.42 Guaranty, dated as of March 7, 2000, by the Trust and Excel
Realty Trust -- ST, Inc.
12 Ratio of Earnings to Fixed Charges.
</TABLE>
<PAGE> 86
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<C> <S>
21 Subsidiaries of the Registrant.
23 Consent of PricewaterhouseCoopers LLP.
27(1) Financial Data Schedule.
</TABLE>
- ---------------
* Incorporated herein by reference as above indicated.
(1) Filed as exhibit to electronic filing only.
<PAGE> 1
EXHIBIT 3.6
NEW PLAN EXCEL REALTY TRUST, INC.
PROPOSED AMENDMENT TO THE AMENDED AND RESTATED BYLAWS
1. Article IV of the Amended and Restated
Bylaws hereby is amended by deleting such Article in its entirety and inserting
the following in its place:
"Section 1. Number, Tenure and
Qualifications. The Board of Directors may appoint from
among its members committees composed of two or more
directors, to serve at the pleasure of the Board of
Directors. In addition, the Board of Directors may
establish additional committees composed of directors
and members of management of the Corporation.
Section 2. Powers. The Board of Directors
may delegate to committees appointed under Section 1
of this Article any of the powers of the Board of
Directors, except as prohibited by law.
Section 3. Telephone Meetings. Members of a
committee appointed under Section 1 of this Article may
participate in a meeting by means of a conference
telephone or similar communications equipment if all
persons participating in the meeting can hear each other
at the same time. Participation in a meeting by these
means shall constitute presence in person at the
meeting.
Section 4. Informal Action by Committees.
Any action required or permitted to be taken at any
meeting of a committee appointed under Section 1 of this
Article may be taken without a meeting if a consent in
writing to such action is signed by each member of the
committee and such written consent is filed with the
minutes of proceedings of such committee."
<PAGE> 2
NEW PLAN EXCEL REALTY TRUST, INC.
PROPOSED AMENDMENT TO THE AMENDED AND RESTATED BYLAWS
1. Article III, Section 5 of the Amended and
Restated Bylaws hereby is amended by deleting such section in its entirety
and inserting the following in its place:
"Section 5. Notice. Notice of any meeting of
the Board of Directors shall be given to each director
either (i) verbally, delivered personally or by
telephone, or (ii) in writing, delivered personally or
transmitted by facsimile to the director's business
address. Such notice shall be given at least three (3)
business days prior to such meeting. Neither the
business to be transacted at, nor the purpose of, any
annual or regular meeting of the Board of Directors need
be stated in this notice, unless specifically required
by statute or these bylaws. No business shall be
transacted at a special meeting of the Board of
Directors except as specifically designated in the
notice thereof."
<PAGE> 1
EXHIBIT 10.4
AMENDMENT TO THE
1993 STOCK OPTION PLAN
OF
NEW PLAN EXCEL REALTY TRUST, INC.
(AMENDED AND RESTATED MAY 28, 1998)
(SUBSEQUENTLY AMENDED SEPTEMBER 28, 1998 AND FEBRUARY 8, 1999)
WHEREAS, New Plan 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 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 of
the Plan ("Committee"); and
WHEREAS, the Committee amended the Plan September 28, 1998 and
February 8, 1999; and
WHEREAS, the Committee desires to amend the Plan.
NOW, THEREFORE, the Plan is hereby amended effective April 21, 1999
as follows:
1. The text of subsection (c) of Section 4.3 - Commencement
of Exercisability is deleted in its entirety, and the following is substituted
therefor:
"Except as the Committee may otherwise provide, no
portion of an Option which is unexercisable at Termination of
Employment shall thereafter become exercisable."
2. The text of Section 4.4 - Expiration of Options is
deleted in its entirety, and the following is substituted therefor:
"(a) Except as the Committee may otherwise provide, no
Option may be exercised to any extent by anyone after the first to
occur of the following events:
(1) The expiration of ten years
from the date the Option was granted; or
<PAGE> 2
(2) With respect to an Incentive Stock
Option in the case of an Optionee owning (within the
meaning of Section 424(d) of the Code), at the time the
Incentive Stock Option was granted, more than 10% of the
total combined voting power of all classes of stock of
the Company, any Subsidiary or any parent corporation,
the expiration of five years from the date the Incentive
Stock Option was granted; or
(3) Except in the case of any Optionee who
is disabled (within the meaning of Section 22(e)(3) of
the Code), the expiration of three months from the date
of the Optionee's Termination of Employment for any
reason other than such Optionee's death unless the
Optionee dies within said three-month period; or
(4) In the case of an Optionee who is
disabled (within the meaning of Section 22(e)(3) of the
Code), the expiration of one year from the date of the
Optionee's Termination of Employment for any reason
other than such Optionee's death unless the Optionee
dies within said one-year period; or
(5) The expiration of one year from the date
of the Optionee's death.
(b) The Committee shall provide, in the terms of each individual
Option, when such Option expires and becomes unexercisable; and (without
limiting the generality of the foregoing) the Committee may provide in the terms
of individual Options that said Options expire immediately upon a Termination of
Employment for any reason."
3. In all other respects the Plan, as amended, shall
continue in full force and effect.
2
<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)
(SUBSEQUENTLY AMENDED SEPTEMBER 28, 1998,
FEBRUARY 8, 1999 AND APRIL 21,1999)
WHEREAS, New Plan 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 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 of the
Plan ('Committee"); and
WHEREAS, the Committee amended the Plan September 28, 1998, February 8,
1999 and April 21, 1999; and
WHEREAS, the Committee desires to amend the Plan.
NOW, THEREFORE, the Plan is hereby amended effective February 17, 2000
as follows:
1. The text of subsection (b) of Section 4.2 - Option Price is
deleted in its entirety, and the following is substituted therefor:
"For purposes of the Plan, unless the Committee determines
otherwise, 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
<PAGE> 2
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."
2. The first sentence of Section 4.5 - Consideration is deleted
in its entirety, and the following is substituted therefor:
"Unless otherwise determined by the Committee, the Optionee,
in consideration of the granting of an Option, shall agree, in the
written Stock Option Agreement, to remain in the employ of the Company
or a Subsidiary for a period of at least one year after the Option is
granted."
3. The text of subsection (b)(3) of Section 5.3 - Manner of
Exercise is deleted in its entirety, and the following is substituted therefor:
"With the consent of the Committee, a recourse, nonrecourse
or limited recourse promissory note, as determined by the Committee,
bearing interest (at no less than such rate as shall then preclude the
imputation of interest under the Code or any successor provision) and
payable upon such terms as may be prescribed by the Committee. The
Committee may also prescribe the form of such note and the security to
be given for such note. No Option may, however, be exercised 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; or
4. In all other respects the Plan, as amended, shall continue in
full force and effect.
2
<PAGE> 1
EXHIBIT 10.8
AMENDMENT TO THE
NEW PLAN EXCEL REALTY TRUST, INC.
DIRECTORS', 1994 STOCK OPTION PLAN
(AMENDED AND RESTATED MAY 10, 1996)
WHEREAS, New Plan Excel Realty Trust, Inc. ("Company") previously
adopted the New Plan 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 Board of Directors of the Company desires to amend the
Plan.
NOW, THEREFORE, the Plan is hereby amended effective February 17, 2000
as follows:
1. The text of subsection (e) of Section 6 OPTION PROVISIONS is deleted
in its entirety, and the following is substituted therefor:
"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 (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
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, (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); and (iii) as otherwise provided by
the Committee."
2. In all other respects the Plan, as amended, shall continue in full
force and effect.
<PAGE> 1
EXHIBIT 10.13
FACILITY I
================================================================================
CREDIT AGREEMENT
by and among
NEW PLAN EXCEL REALTY TRUST, INC.
THE LENDERS PARTY HERETO,
AND
THE BANK OF NEW YORK
as Administrative Agent
BANK ONE, NA
as a Co-Documentation Agent
and
BANKBOSTON, N.A.
as a Co-Documentation Agent
Dated as of November 17, 1999
BNY CAPITAL MARKETS, INC.
as Sole Lead Arranger
and Bookrunner
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
1. DEFINITIONS..............................................................................................1
1.1. DEFINED TERMS....................................................................................1
1.2. OTHER DEFINITIONAL PROVISIONS...................................................................24
2. AMOUNT AND TERMS OF LOANS...............................................................................24
2.1. LOANS...........................................................................................24
2.2. NOTES...........................................................................................25
2.3. PROCEDURE FOR REVOLVING CREDIT LOAN BORROWINGS OTHER THAN COMPETITIVE BID BORROWINGS. 26
2.4. COMPETITIVE BID BORROWINGS AND PROCEDURE FOR COMPETITIVE BID BORROWINGS.........................28
2.5. TERMINATION OR REDUCTION OF COMMITMENTS.........................................................32
2.6. REPAYMENT OF LOANS; EVIDENCE OF DEBT............................................................33
2.7. PREPAYMENTS OF THE LOANS........................................................................34
2.8. CONVERSIONS.....................................................................................34
2.9. INTEREST RATE AND PAYMENT DATES.................................................................35
2.10. SUBSTITUTED INTEREST RATE.......................................................................37
2.11. TAXES; NET PAYMENTS.............................................................................38
2.12. ILLEGALITY......................................................................................38
2.13. INCREASED COSTS.................................................................................39
2.14. INDEMNIFICATION FOR BREAK FUNDING LOSSES........................................................40
2.15. USE OF PROCEEDS.................................................................................41
2.16. CAPITAL ADEQUACY................................................................................42
2.17. ADMINISTRATIVE AGENT'S RECORDS..................................................................42
2.18. EXTENSION OF REVOLVING CREDIT TERMINATION DATE..................................................43
3. FEES; PAYMENTS..........................................................................................43
3.1. FACILITY FEE....................................................................................43
3.2. PAYMENTS; APPLICATION OF PAYMENTS...............................................................44
4. REPRESENTATIONS AND WARRANTIES..........................................................................45
4.1. EXISTENCE AND POWER.............................................................................45
4.2. AUTHORITY.......................................................................................45
4.3. BINDING AGREEMENT...............................................................................45
4.4. SUBSIDIARIES; DOWNREIT PARTNERSHIPS.............................................................46
4.5. LITIGATION......................................................................................46
4.6. REQUIRED CONSENTS...............................................................................47
4.7. NO CONFLICTING AGREEMENTS.......................................................................47
4.8. COMPLIANCE WITH APPLICABLE LAWS.................................................................47
4.9. TAXES...........................................................................................47
4.10. GOVERNMENTAL REGULATIONS........................................................................48
4.11. FEDERAL RESERVE REGULATIONS; USE OF LOAN PROCEEDS...............................................48
4.12. PLANS; MULTIEMPLOYER PLANS......................................................................48
4.13. FINANCIAL STATEMENTS............................................................................49
4.14. PROPERTY........................................................................................49
4.15. FRANCHISES, INTELLECTUAL PROPERTY, ETC..........................................................49
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
4.16. ENVIRONMENTAL MATTERS...........................................................................50
4.17. LABOR RELATIONS.................................................................................51
4.18. BURDENSOME OBLIGATIONS..........................................................................51
4.19. SOLVENCY........................................................................................52
4.20. REIT STATUS.....................................................................................52
4.21. RENT ROLL AND LIST OF UNENCUMBERED ASSETS.......................................................52
4.22. YEAR 2000.......................................................................................52
4.23. OPERATION OF BUSINESS...........................................................................53
4.24. NO MISREPRESENTATION............................................................................53
5. CONDITIONS TO FIRST LOANS...............................................................................53
5.1. EVIDENCE OF ACTION..............................................................................53
5.2. THIS AGREEMENT..................................................................................54
5.3. NOTES...........................................................................................54
5.4. GUARANTY........................................................................................54
5.5. OTHER CREDIT AGREEMENT..........................................................................54
5.6. LITIGATION......................................................................................55
5.7. OPINION OF COUNSEL TO THE BORROWER..............................................................55
5.8. FEES............................................................................................55
5.9. FEES AND EXPENSES OF SPECIAL COUNSEL............................................................55
5.10. YEAR 2000 ASSURANCES............................................................................55
6. CONDITIONS OF LENDING - ALL LOANS.......................................................................56
6.1. COMPLIANCE......................................................................................56
6.2. LOAN CLOSINGS...................................................................................56
6.3. BORROWING REQUEST; TERM LOAN CONVERSION NOTICE..................................................56
6.4. DOCUMENTATION AND PROCEEDINGS...................................................................56
6.5. REQUIRED ACTS AND CONDITIONS....................................................................57
6.6. APPROVAL OF SPECIAL COUNSEL.....................................................................57
6.7. SUPPLEMENTAL OPINIONS...........................................................................57
6.8. OTHER DOCUMENTS.................................................................................57
7. AFFIRMATIVE COVENANTS...................................................................................57
7.1. FINANCIAL STATEMENTS............................................................................58
7.2. CERTIFICATES; OTHER INFORMATION.................................................................59
7.3. LEGAL EXISTENCE.................................................................................62
7.4. TAXES...........................................................................................63
7.5. INSURANCE.......................................................................................63
7.6. PAYMENT OF INDEBTEDNESS AND PERFORMANCE OF OBLIGATIONS..........................................63
7.7. MAINTENANCE OF PROPERTY; ENVIRONMENTAL INVESTIGATIONS...........................................64
7.8. OBSERVANCE OF LEGAL REQUIREMENTS................................................................64
7.9. INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS..........................................65
7.10. LICENSES, INTELLECTUAL PROPERTY.................................................................65
7.11. REQUIRED ADDITIONAL GUARANTORS..................................................................65
7.12. REIT STATUS; OPERATION OF BUSINESS..............................................................65
7.13. TERMINATION OF EXISTING CREDIT AGREEMENTS.......................................................66
8. NEGATIVE COVENANTS......................................................................................66
8.1. LIENS...........................................................................................66
8.2. MERGER, CONSOLIDATION AND CERTAIN DISPOSITIONS OF PROPERTY......................................67
8.3. INVESTMENTS, LOANS, ETC.........................................................................68
</TABLE>
- 2 -
<PAGE> 4
<TABLE>
<S> <C>
8.4. BUSINESS CHANGES................................................................................69
8.5. AMENDMENTS TO ORGANIZATIONAL DOCUMENTS..........................................................70
8.6. BANKRUPTCY PROCEEDINGS..........................................................................70
8.7. SALE AND LEASEBACK..............................................................................70
8.8. TRANSACTIONS WITH AFFILIATES....................................................................70
8.9. ISSUANCE OF ADDITIONAL CAPITAL STOCK BY SUBSIDIARY GUARANTORS...................................70
8.10. HEDGING AGREEMENTS..............................................................................71
8.11. RESTRICTED PAYMENTS.............................................................................71
8.12. UNENCUMBERED ASSETS COVERAGE RATIO..............................................................72
8.13. FIXED CHARGE COVERAGE RATIO.....................................................................72
8.14. MINIMUM TANGIBLE NET WORTH......................................................................72
8.15. MAXIMUM TOTAL INDEBTEDNESS......................................................................72
8.16. LIABILITIES TO ASSETS RATIO.....................................................................72
8.17. MAXIMUM BOOK VALUE OF ANCILLARY ASSETS..........................................................72
9. DEFAULT.................................................................................................73
9.1. EVENTS OF DEFAULT...............................................................................73
10. THE AGENT...............................................................................................76
10.1. APPOINTMENT.....................................................................................76
10.2. DELEGATION OF DUTIES............................................................................77
10.3. EXCULPATORY PROVISIONS..........................................................................77
10.4. RELIANCE BY ADMINISTRATIVE AGENT................................................................77
10.5. NOTICE OF DEFAULT...............................................................................78
10.6. NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS..........................................78
10.7. INDEMNIFICATION.................................................................................79
10.8. ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY.................................................79
10.9. SUCCESSOR ADMINISTRATIVE AGENT..................................................................80
11. OTHER PROVISIONS........................................................................................81
11.1. AMENDMENTS AND WAIVERS..........................................................................81
11.2. NOTICES.........................................................................................82
11.3. NO WAIVER; CUMULATIVE REMEDIES..................................................................83
11.4. SURVIVAL OF REPRESENTATIONS AND WARRANTIES......................................................83
11.5. PAYMENT OF EXPENSES AND TAXES...................................................................84
11.6. LENDING OFFICES.................................................................................85
11.7. SUCCESSORS AND ASSIGNS..........................................................................85
11.8. DESIGNATED LENDER...............................................................................88
11.9. COUNTERPARTS....................................................................................88
11.10. ADJUSTMENTS; SET-OFF............................................................................89
11.11. LENDERS' REPRESENTATIONS........................................................................90
11.12. INDEMNITY.......................................................................................90
11.13. GOVERNING LAW...................................................................................91
11.14. HEADINGS DESCRIPTIVE............................................................................91
11.15. SEVERABILITY....................................................................................91
11.16. INTEGRATION.....................................................................................91
11.17. CONSENT TO JURISDICTION.........................................................................91
11.18. SERVICE OF PROCESS..............................................................................92
11.19. NO LIMITATION ON SERVICE OR SUIT................................................................92
11.20. WAIVER OF TRIAL BY JURY.........................................................................92
11.21. TERMINATION.....................................................................................93
</TABLE>
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<PAGE> 5
LIST OF EXHIBITS AND SCHEDULES
EXHIBITS:
Exhibit A - Assignment and Assumption
Exhibit B - Commitment Amounts
Exhibit C - Competitive Bid Borrowing Request
Exhibit D - Compliance Certificate
Exhibit E - Conventional Borrowing Request
Exhibit F - Guaranty
Exhibit G - Term Loan Conversion Notice
Exhibit H - Note
Exhibit I - Secretary's Certificate (Borrower)
Exhibit J - Secretary's Certificate (Guarantor)
Exhibit K - Points for Legal Opinions
Exhibit L - Designation Agreement
Exhibit M - Form of Notice of Conversion
SCHEDULES:
Schedule I - Domestic and Eurodollar Lending Offices
Schedule 4 4 - Subsidiaries (including Subsidiary Guarantors)
Schedule 4 5 - Litigation
Schedule 4 12 - Plans
Schedule 4 21 - Rent Roll and List of Unencumbered Assets
Schedule 4 22 - Year 2000 Remediation
<PAGE> 6
CREDIT AGREEMENT, dated as of November 17, 1999, by and among NEW PLAN
EXCEL REALTY TRUST, INC., a Maryland corporation (the "Borrower"), each lender
party hereto or which becomes a "Lender" or a "Designated Lender" pursuant to
the provisions of Section 11.7 or 11.8, respectively (each a "Lender" and,
collectively, the "Lenders"), THE BANK OF NEW YORK, as administrative agent (in
such capacity, the "Administrative Agent"), and BANK ONE, NA and BANKBOSTON,
N.A. (each a "Co-Documentation Agent" and, collectively, the "Co-Documentation
Agents").
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": PricewaterhouseCoopers LLP, or, after the date
hereof, any of: Arthur Andersen LLP; Deloitte & Touche LLP; Ernst & Young LLP;
KPMG LLP; or any successor to any of the foregoing; or such other firm of
certified public accountants of recognized national standing selected by the
Borrower and satisfactory to the Administrative Agent.
"Adjusted Net Operating Income": for any period, the aggregate
amount of the Net Operating Income from each Unencumbered Asset during such
period, less the Capital Expense Reserve for such Unencumbered Asset during such
period.
"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
Administrative Agent of its intent to do so in any instance in which it shall
have requested a Eurodollar Advance pursuant to Section 2.3 or 2.8, or shall
have accepted one or more offers of Competitive Bid Advances under Section 2.4,
an amount equal to the principal amount of such Eurodollar Advance or
Competitive Bid Advance; (ii) a Eurodollar Advance or Competitive Bid Advance
shall terminate for any reason prior to the last day of the Interest Period
applicable thereto, an amount equal to the principal amount of such Eurodollar
Advance or Competitive Bid Advance; or (iii) the Borrower shall prepay or
<PAGE> 7
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 (including, without limitation, any mandatory prepayment or a prepayment
resulting from acceleration or illegality), 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 10% or more of the securities
having ordinary voting power for the election of directors of such Person or
(ii) to direct or cause the direction of the management and policies of such
Person, whether by contract or otherwise.
"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.
"Ancillary Assets": at any time, all Real Property of the
Borrower and its Subsidiaries, or in which the Borrower or any Subsidiary of the
Borrower has an interest (either directly or indirectly), and which is (i) a
Development Asset, (ii) a mortgage, or (iii) any other Real Property other than
an open air shopping center (including single tenant retail properties) or a
residential apartment building or residential apartment community (and
appurtenant amenities).
"Applicable Facility Fee Percentage": at all times during which
the applicable Pricing Level set forth below is in effect, a rate per annum
equal to the following applicable percentage amount corresponding to such
Pricing Level:
Pricing Level Applicable Facility Fee Percentage
------------- ----------------------------------
Pricing Level I 0.100%
Pricing Level II 0.125%
Pricing Level III 0.125%
Pricing Level IV 0.150%
Pricing Level V 0.175%
Pricing Level VI 0.250%
Pricing Level VII 0.350%.
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
- 2 -
<PAGE> 8
any change in the Borrower's Senior Debt Rating, as determined by S&P or
Moody's, as the case may be, 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 respective percentage set forth below
next to such Pricing Level:
Pricing Level Applicable Margin
------------- -----------------
Pricing Level I 0.525%
Pricing Level II 0.625%
Pricing Level III 0.625%
Pricing Level IV 0.725%
Pricing Level V 0.950%
Pricing Level VI 1.000%
Pricing Level VII 1.150%.
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 be, which would affect the
applicable Pricing Level.
"Assignment and Assumption Agreement": an assignment and
assumption 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
Notes and Commitments, 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 Administrative 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 11.10.
- 3 -
<PAGE> 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.
"Borrower's Interest": for any period, (i) with respect to
Unencumbered Assets owned by a DownREIT Partnership, a fraction, expressed as a
percentage, the numerator of which is the Net Operating Income of such
Unencumbered Assets for such period, less any distributions required to be made
to partners or members of such DownREIT Partnership, other than the Borrower and
its Subsidiaries, and the denominator of which is the Net Operating Income of
such Unencumbered Assets for such period, and (ii) with respect to any Ancillary
Asset, the percentage of profits and losses with respect thereto to which the
Borrower or its Subsidiaries, directly or indirectly, may be entitled to receive
for such period.
"Borrowing Date": any Business Day specified in a Borrowing
Request delivered pursuant to Section 2.3 or 2.4, as the case may be, as a date
on which the Borrower requests the Lenders to make Loans.
"Borrowing Request": a Conventional Borrowing Request or a
Competitive Bid Borrowing Request, as the case may be.
"Business Day": for all purposes other than as set forth in
clause (ii) below, (i) any day other than a Saturday, a Sunday or a day on which
commercial banks located in New York City are authorized or required by law or
other governmental action to close and (ii) with respect to all notices and
determinations in connection with, and payments of principal and interest on,
Eurodollar Advances, 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.
"Capital Expense Reserve": during any period, (i) with respect
to each Unencumbered Asset other than a residential apartment building or
residential apartment community, an amount equal to (A) a per annum rate of $.20
times (B) the total Net Rentable Area of such Unencumbered Asset, and (ii) with
respect to each Unencumbered Asset that is a residential apartment building or
residential apartment community, an amount equal to (A) $150 times (B) the
number of apartment units in such residential
- 4 -
<PAGE> 10
apartment building or community (in each case whether or not such reserves are
actually established by the Borrower).
"Change of Control": the occurrence of any one of the following
events:
(a) any Person or Persons acting as a group shall acquire
direct or indirect ownership of 30% or more of the Borrower's common Stock; or
(b) during any twelve month period on or after the Effective
Date, individuals who at the beginning of such period constituted the Board of
Directors of the Borrower (together with any new directors whose election by the
Board of Directors or whose nomination for election by the shareholders of the
Borrower was approved by a vote of at least a majority of the members of the
Board of Directors then in office who either were members of the Board of
Directors at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the members of the Board of Directors then in office; or
(c) 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
(d) the Borrower consolidates with, is acquired by, or
merges into or with any Person (other than a merger permitted by Section 8.2).
"Chief Financial Officer": at any time, the chief financial
officer of the Borrower, or if the Borrower does not have a chief financial
officer at such time, the officer designated by the Borrower as its principal
financial officer or such other officer of the Borrower that is acceptable to
the Administrative Agent.
"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,
and as of the end of the Revolving Credit Period, such Lender's undertaking to
convert the aggregate 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 such Lender's
Commitment
- 5 -
<PAGE> 11
Amount, as the same may be reduced pursuant to Section 2.5. If the Borrower
shall convert the Revolving Credit Loans to Term Loans pursuant to Section
2.1(b), then the Commitment Amount of each Lender shall be the Term Loan of such
Lender outstanding from time to time.
"Commitment Percentage": on any day, and as to any Lender, the
quotient of (i) such Lender's Commitment Amount on such day, divided by (ii) the
Commitments 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 2.4.
"Competitive Bid Borrowing": a borrowing pursuant to Section 2.4
consisting of simultaneous Competitive Bid Advances from each Lender whose offer
to make a Competitive Bid Advance as part of such borrowing has been accepted by
the Borrower under the auction bidding procedure set forth in Section 2.4.
"Competitive Bid Borrowing Request": a borrowing request in the
form of Exhibit C.
"Competitive Bid Ceiling": at any time, an amount equal to 50%
of the Total Commitment Amount at such time.
"Compliance Certificate": a certificate substantially in the
form of Exhibit D.
"Consolidated": the Borrower and its Subsidiaries which are
consolidated for financial reporting purposes.
"Consolidated EBITDA": for any period, net income for such
period of the Borrower and its Subsidiaries, determined on a Consolidated basis
in accordance with GAAP, plus, without duplication and to the extent deducted in
determining such net income, the sum of (i) Consolidated Interest Expense for
such period, (ii) the aggregate amount of any taxes paid during such period,
(iii) the aggregate amount attributable to depreciation and amortization for
such period, (iv) the aggregate amount of extraordinary charges during such
period and (v) the aggregate amount of non-cash expenses during such period, and
minus, without duplication and to the extent added in determining such net
income for such period, the aggregate amount of extraordinary gains during such
period.
"Consolidated Fixed Charges": during any period, the sum of each
of the following with respect to the Borrower and its Subsidiaries (without
duplication), determined on a Consolidated basis in accordance with GAAP: (i)
the aggregate amount
- 6 -
<PAGE> 12
of all interest expense, both expensed and capitalized (including Consolidated
Interest Expense) for such period, (ii) the aggregate of all scheduled principal
amounts that become payable during such period in respect of any Indebtedness of
the Borrower or its Subsidiaries (excluding balloon payments at maturity) and
(iii) the aggregate amount of all cash dividends paid during such period in
respect of preferred stock of the Borrower or its Subsidiaries.
"Consolidated Interest Expense": for any period, interest and
fees accrued, accreted or paid by the Borrower and its Subsidiaries during such
period in respect of Consolidated Total Indebtedness, determined in accordance
with GAAP, including (a) the amortization of debt discounts to the extent
included in interest expense in accordance with GAAP, (b) the amortization of
all fees (including fees with respect to interest rate cap agreements or other
agreements or arrangements entered into by the Borrower or any of its
Subsidiaries designed to protect the Borrower or such Subsidiaries, as
applicable, against fluctuations in interest rates) payable in connection with
the incurrence of any Indebtedness to the extent included in interest expense in
accordance with GAAP and (c) the portion of any rents payable under capital
leases allocable to interest expense in accordance with GAAP.
"Consolidated Total Indebtedness": as of any date, the aggregate
principal amount of all Indebtedness of the Borrower and its Subsidiaries
determined on a Consolidated basis in accordance with GAAP, plus, if not
otherwise required to be reflected in the Borrower's Consolidated balance sheet
(and without duplication) (i) Contingent Obligations of the Borrower and its
Subsidiaries on such date which are required in accordance with GAAP to be
disclosed in a footnote to any such balance sheet, and (ii) any guarantee by the
Borrower of any Indebtedness of an unconsolidated Subsidiary or joint venture in
which the Borrower is a direct or indirect investor (to the full extent of the
amount of such guaranteed Indebtedness on such date).
"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,
- 7 -
<PAGE> 13
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.
"Credit Party": the Administrative Agent, the Lead Arranger, the
Co-Documentation Agents, each Lender and their successors and assigns.
"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.
"Defaulting Lender": at any time, any Lender that, at such time,
(i) has failed to comply with any of its obligations to make a Loan as required
pursuant to Section 2.3 or 2.4 of this Agreement, (ii) has failed to pay to the
Administrative Agent or any Lender an amount owed by such Lender pursuant to the
terms of this Agreement or any of the other Loan Documents, or (iii) has advised
the Administrative Agent that it does not intend to comply with its obligations
under Section 2.3 or 2.4 by reason of having been deemed insolvent or having
become subject to a bankruptcy or insolvency proceeding.
"Designated Lender": a special purpose corporation that is
engaged in making, purchasing, or otherwise investing in commercial loans in the
ordinary course of its business and that issues (or the parent of which issues)
commercial paper rated at least "Prime-1" (or the then equivalent grade) by
Moody's or "A-1" (or the then equivalent grade) by S&P that, in either case, (i)
is organized under the laws of the United States or any state thereof, (ii)
shall have become a party to this Agreement pursuant to Section 11.8 for the
sole purposes of funding Competitive Bid Advances on behalf of a Designating
Lender and (iii) is not otherwise a Lender.
- 8 -
<PAGE> 14
"Designating Lender": as defined in Section 11.8.
"Designation Agreement": a designation agreement in
substantially the form of Exhibit L hereto entered into between a Lender (other
than a Designated Lender) and a Designated Lender, and accepted by the
Administrative Agent.
"Development Asset": any Property of the Borrower or its
Subsidiaries, or in which the Borrower or any of its Subsidiaries has an
interest (either directly or indirectly) (i) which is new construction, or which
is undergoing an expansion which will increase the Net Rentable Area of such
Property by 20,000 square feet or more (provided that with respect to any
Property which is under expansion, if the balance thereof is a fully integrated,
rentable property, then only the portion of such Property that is under
expansion shall be a Development Asset), and (ii) for which a certificate of
occupancy, whether temporary or permanent, or the functional equivalent thereof,
has not been issued with respect to such construction or expansion.
Notwithstanding the foregoing, any such new construction or expansion which
shall have been a Development Asset under the criteria of this definition shall
no longer be a Development Asset upon such time as (A) the same is an
income-producing Property in operating condition, and (B) at least 70% of the
Net Rentable Area (determined on an "as completed" basis) of such construction
or expansion is initially leased to tenants who have taken possession thereof.
"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 Administrative Agent and the Borrower.
"DownREIT Partnership": Excel Realty Partners, L.P., E. H.
Properties, L.P. and any other partnership or limited liability company
hereafter created by the Borrower for the purpose of acquiring assets qualifying
as "real estate assets" under Section 856(c) of the Code through the issuance of
partnership or limited liability company units in such partnership or limited
liability company to third parties, provided that, in the case of each such
entity (including Excel Realty Partners, L.P. and E. H. Properties, L.P.) (i)
the Borrower or a wholly owned Subsidiary of the Borrower is the sole general
partner or managing member of such partnership or limited liability company, as
the case may be, and (ii) the Borrower or its wholly owned Subsidiary shall be
entitled to receive not less than 99% of the net income and gains before
depreciation, if any, from such partnership or limited liability company after
the limited partners or non-managing members of such partnership or limited
liability company receive a stipulated distribution. Any partnership or limited
liability company created after the
- 9 -
<PAGE> 15
Effective Date must be approved by the Administrative Agent as a "DownREIT
Partnership" for purposes of being included in this definition.
"Effective Date": the date on which the conditions specified in
Section 5 are satisfied.
"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.
"Environmental Risk Property": any Real Property of the
Borrower, a Subsidiary Guarantor or a DownREIT Partnership in respect of which,
at any time:
(i) Hazardous Substances are (A) generated or
manufactured on, transported to or from, treated at, stored at or
discharged from such Real Property in violation of any Environmental
Laws; (B) discharged into subsurface waters under such Real Property in
violation of any Environmental Laws; or (C) discharged from such Real
Property on or into property or waters (including subsurface waters)
adjacent to such Real Property in violation of any Environmental Laws,
and any of the foregoing events in (A), (B) or (C) has an Adverse
Environmental Impact; or
(ii) there exists with respect to such Real Property
(A) a claim, demand, suit, action, proceeding, condition, report,
directive, lien, violation, or non-compliance concerning any 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
such Real Property or the release of any Hazardous Substance into the
environment from such Real Property, or (B) any actual liability in
connection with the presence of any Hazardous Substance on such Real
Property or the release of any Hazardous Substance into the environment
from such Real Property, and any of the foregoing events in (A) or (B)
has an Adverse Environmental Impact.
- 10 -
<PAGE> 16
For purposes of this definition, the term "Adverse Environmental
Impact" shall mean any event described in clauses (A), (B) or (C) of
paragraph (i) above or clauses (A) or (B) of paragraph (ii) above which
could reasonably be expected to have a material adverse effect on (1)
the value of such Real Property, (2) the marketability of such Real
Property, or (3) the ability to finance or refinance such Real Property.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the rules and regulations issued thereunder, as
from time to time in effect.
"ERISA Affiliate": any Person which is a member of any group of
organizations (i) described in Section 414(b) or (c) of the Code of which the
Borrower is a member, or (ii) solely for purposes of potential liability under
Section 302(c)(11) of ERISA and Section 412(c)(11) of the Code and the Lien
created under Section 302(f) of ERISA and Section 412(n) of the Code, described
in Section 414(m) or (o) of the Code of which the Borrower is a member.
"ERISA Liabilities": without duplication, the aggregate of all
unfunded vested benefits under all Plans and all potential withdrawal
liabilities under all Multiemployer Plans.
"Eurodollar Advance": collectively, the Loans (or any portions
thereof), other than Competitive Bid Advances, at such time as they (or such
portions) are made and/or being maintained at a rate of interest based upon a
particular Eurodollar Rate; and "Eurodollar Advances" shall mean all such
Eurodollar Advances in the aggregate.
"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 Administrative Agent and the Borrower.
"Eurodollar Rate": with respect to each Eurodollar Advance and
as determined by the Administrative 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 12:00
P.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
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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 specified in Section 9 has been satisfied.
"Existing Credit Agreements" shall mean that (i) certain
Revolving Credit Agreement dated as of November 21, 1997 among New Plan Realty
Trust (as predecessor in interest to the Borrower), The Bank of New York, as
Administrative Agent, and the lenders signatory thereto, as the same has been
amended and assumed by the Borrower, (ii) that certain First Amended and
Restated Revolving Credit Agreement, dated as of March 31, 1998, among the
Borrower (successor by merger to Excel Realty Trust, Inc.), BankBoston, N.A., as
Agent, and the lenders signatory thereto, as the same has been amended, and
(iii) that certain Term Loan Agreement, dated July 13, 1999, among the Borrower,
The Bank of New York, as agent, and the lenders party thereto.
"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 Administrative Agent.
"Financial Statements": as defined in Section 4.13.
"Fixed Charge Coverage Ratio": for any period, the ratio of (i)
Consolidated EBITDA during such period to (ii) Consolidated Fixed Charges during
such period.
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"Fixed Rate Advance": A Eurodollar Advance or a Competitive Bid
Advance.
"Funds from Operations": With respect to any Person for any
fiscal period, the sum of (i) the net income of such Person for such fiscal
period (computed in accordance with GAAP), excluding gains (or losses) from debt
restructuring and sales of property, (ii) depreciation and amortization, and
(iii) other non-cash items, and after adjustments for unconsolidated
partnerships and joint ventures. Adjustments for unconsolidated partnerships and
joint ventures will be calculated to reflect funds from operations on the same
basis.
"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.
"Ground Lease": a ground lease in favor of the Borrower, a
wholly owned Subsidiary or a DownREIT Partnership which has an unexpired term of
30 years or more (inclusive of any tenant-controlled renewal options) and which
includes within its terms those rights customarily required by mortgagees making
a loan secured by the interest of the holder of the leasehold estate demised
pursuant to such ground lease.
"Guaranty": collectively, (i) a Guaranty, substantially in the
form of Exhibit F executed by each of the Subsidiary Guarantors identified on
Schedule 4.4 and delivered to the Administrative Agent for the benefit of the
Lenders on or prior to the Effective Date, and (ii) each additional Guaranty
substantially in the form of Exhibit F executed by each Required Additional
Guarantor and delivered to the Administrative Agent for the benefit of the
Lenders after the Effective Date.
"Hazardous Substance": any hazardous or toxic substance,
material or waste, including, but not limited to, (i) those substances,
materials, and wastes listed in the United States Department of Transportation
Hazardous Materials Table (49 CFR 172.101) or by the Environmental Protection
Agency as hazardous substances (40 CFR Part 302) and amendments thereto and
replacements therefor and (ii) any substance, pollutant or material defined as,
or designated in, any Environmental Law as a
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<PAGE> 19
"hazardous substance," "toxic substance," "hazardous material," "hazardous
waste," "restricted hazardous waste," "pollutant," "toxic pollutant" or words of
similar import.
"Hedging Agreement" means any interest rate protection
agreement, foreign currency exchange agreement, commodity price protection
agreement or other interest or currency exchange rate or commodity price hedging
arrangement.
"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 11.12.
"Intellectual Property": all copyrights, trademarks, patents,
trade names and service names.
"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
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<PAGE> 20
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 2.3 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 2.4; provided, however, that all of the foregoing provisions
relating to Interest Periods are subject to the following:
(a) 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;
(b) if, with respect to the borrowing of any Loan as a
Eurodollar Advance or the conversion of one Advance to another pursuant to
Section 2.8, the Borrower shall fail to give due notice as provided in Section
2.3 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;
(c) 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;
(d) 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 election of the Term Loan, no such Interest Period shall end
after the Maturity Date;
(e) with respect to any Interest Period applicable to a
Competitive Bid Advance, no such Interest Period shall end after the Revolving
Credit Termination Date;
(f) the Borrower shall select Interest Periods so as not to
have more than six 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;
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<PAGE> 21
(g) no Interest Period pertaining to a Competitive Bid
Advance shall be shorter than 7 days or longer than 180 days;
(h) each Interest Period for a Competitive Bid Advance must
commence and end on a Business Day.
"Investments": as defined in Section 8.3.
"Lead Arranger": BNY Capital Markets, Inc.
"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": a Revolving Credit Loan (or Loans), a Term
Loan (or Loans), and/or a Competitive Bid Borrowing (or Borrowings), as the case
may be. All Loans shall be made in Dollars.
"Loan Documents": collectively, this Agreement, the Guaranty
(and each Guaranty subsequently delivered pursuant to Section 7.11) 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 Effect": a material adverse effect on (i) the
financial condition, operations, business, or Properties 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 Administrative Agent and the Lenders to enforce the Loan
Documents.
"Maturity Date": (i) with respect to Revolving Credit Loans made
as Conventional Advances, if such Loans are not converted to Term Loans pursuant
to Section 2.1(b), 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, (ii) with respect to Competitive Bid Borrowings, the date each such
Competitive Bid Borrowing is due in accordance with Section 2.4(f) or by
acceleration, and (iii) with respect to any Term Loans, the earlier of the date
that is two years 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.
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<PAGE> 22
"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 Operating Income": for any period and with respect to all
assets which are Unencumbered Assets during such period, net income for such
period, determined in accordance with GAAP, attributable to Unencumbered Assets,
plus depreciation and amortization, interest expense and any extraordinary or
non-recurring losses deducted in calculating such net income, minus
extraordinary or non-recurring gains and payments (including rent insurance
proceeds and condemnation awards) included in such net income, minus any portion
of such net income attributable to rents paid by any tenant which is an
Affiliate of the Borrower, minus an amount (but not less than zero) equal to the
difference between (i) 3% of Operating Income for such period, less (ii)
management fees payable in respect of such Unencumbered Assets during such
period. For purposes of any calculation of Net Operating Income, real estate
taxes, ground rent and insurance, shall be included only at their stabilized,
recurring levels.
"Net Rentable Area": with respect to any Real Property, the
floor area of any buildings, structures or improvements thereof (expressed in
square feet) available for leasing to tenants, as determined in accordance with
the leases or site plans or leasing plans for such Real Property, or if such
leases or site plans do not set forth the floor area demised thereunder (or if
such Real Property is not subject to a lease), then as determined by the
Borrower in accordance with an industry-accepted protocol approved by the
Administrative Agent.
"Non-Recourse Exclusions": With respect to any Indebtedness of
any Person which is secured by one or more parcels of Real Property or interests
therein and which is not a general obligation of such Person, any usual and
customary exclusions from the non-recourse limitations governing such
Indebtedness, including, without limitation, exclusions for claims that (i) are
based on fraud, intentional misrepresentation or misapplication of funds, (ii)
result from intentional mismanagement of or waste at such Real Property, (iii)
arise from the presence of Hazardous Substances on such Real Property; or (iv)
are the result of any unpaid real estate taxes and assessments.
"Non-Recourse Indebtedness": At any time, Indebtedness of the
Borrower and of its Subsidiaries at such time which is secured by one or more
parcels of Real Property or interests therein and which is not a general
obligation of the Borrower or such Subsidiary, the holder of such Indebtedness
having recourse solely to the parcels of Real Property securing such
Indebtedness, the leases thereon and the rents and profits thereof (except for
recourse against the general credit of the Borrower or its Subsidiaries for any
Non-Recourse Exclusions), provided that in calculating the amount of
Non-Recourse Indebtedness at any time, the amount of any Non-Recourse Exclusions
which are the subject of a final judgment shall not be included in Non-Recourse
Indebtedness.
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<PAGE> 23
"Note" and "Notes": as defined in Section 2.2.
"Operating Property": Any Real Property which at any time (i) is
an income-producing property in operating condition and in respect of which no
material part thereof has been damaged by fire or other casualty (unless such
damage has been repaired) or condemned (unless such condemnation has been
restored), (ii) is a retail shopping center, residential apartment building,
office building or other operating Property, (iii) for which a certificate of
occupancy, whether temporary or permanent, or the functional equivalent thereof,
has been issued for all improvements comprising the same and are in full force
and effect, and (iv) is at least 60% occupied by tenants who have accepted the
property and are paying rent in accordance with the terms of their leases, and
"Operating Properties" means all such Operating Properties, collectively.
"Other Credit Agreement": that certain Credit Agreement of even
date herewith among the Borrower, the Administrative Agent, the Co-Documentation
Agents and the Lenders party thereto providing for a senior three-year revolving
credit facility in favor of the Borrower, as the same may be amended from time
to time.
"Participating Lender": defined in Section 2.4.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA, or any Governmental Authority
succeeding to the functions thereof.
"Permitted Liens": Liens permitted to exist under Section 8.1.
"Person": an individual, a partnership, a corporation, a
business trust, a limited liability company, 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": one of the following seven pricing levels, as
applicable, provided that if the ratings by S&P and Moody's in any such Pricing
Level are split by more than one equivalent rating level, the operative rating
would be deemed to be one rating level higher than the lower of the two ratings,
and provided, further, that during any period that the Borrower has no Senior
Debt Rating, Pricing Level VII would be the applicable Pricing Level:
"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;
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<PAGE> 24
"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 Baa1 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 or Baa2 by
Moody's and Pricing Levels I, II, III and IV are not applicable;
"Pricing Level VI": the Pricing Level which would be applicable
for so long as the Senior Debt Rating is equal to BBB- by S&P or Baa3 by
Moody's and Pricing Levels I, II, III, IV and V are not applicable; and
"Pricing Level VII": 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, V and VI are
not applicable.
"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; each such rate to be determined by such Lender in good faith in its
sole discretion.
"Rated Period": Any period during which S&P and Moody's are
maintaining a Senior Debt Rating and such Senior Debt Rating is at least BBB- as
determined by S&P, and at least Baa3, as determined by Moody's.
"Real Property": all real Property, and all interests in real
Property, owned, leased or held by the Borrower or any Subsidiary of the
Borrower.
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<PAGE> 25
"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.
"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 Administrative Agent of its intent to do so
pursuant to Section 2.3 or 2.8 or accepted one or more offers of Competitive Bid
Advances under Section 2.4, a period equal to the Interest Period that the
Borrower elected in respect of such Eurodollar Advance or Competitive Bid
Advance; or (ii) in the event that a Eurodollar Advance or Competitive Bid
Advance shall terminate for any reason prior to the last day of the Interest
Period applicable thereto, a period equal to the remaining portion of such
Interest Period if such Interest Period had not been so terminated; or (iii) in
the event that the Borrower shall prepay or repay all or any part of the
principal amount of a Eurodollar Advance or Competitive Bid Advance (including,
without limitation, any mandatory prepayment or a prepayment resulting from
acceleration or illegality) prior to the last day of the Interest Period
applicable thereto, a period equal to the period from and including the date of
such prepayment or repayment to but excluding the last day of such Interest
Period.
"Rent Roll": a schedule prepared by the Borrower from time to
time identifying (i) the Real Property owned by the Borrower or its Subsidiaries
and stating whether such items of Real Property are Unencumbered Assets at such
time, (ii) the annual base rent payable under each lease of Real Property owned
by the Borrower or any of its Subsidiaries, (iii) the commencement and
termination dates of the term of each such lease, (iv) any renewal options with
respect to such lease, (v) the Net Rentable Area of the space demised under each
such lease and (vi) such other information as the Administrative Agent may
reasonably require.
"Required Additional Guarantors": any Subsidiary required to
execute and deliver a Guaranty pursuant to Section 7.11.
"Required Lenders": means (a) so long as the Commitments remain
in effect (i) if no Loans are outstanding at such time or there are Loans
comprised of Conventional Advances and Competitive Bid Advances, Lenders (other
than any Defaulting Lenders or Designated Lenders) having Commitments equal to
at least 51% of the Commitments of all Lenders at such time; (ii) if Loans
outstanding at such time are comprised of Conventional Advances only, Lenders
(other than any Defaulting Lenders or Designated Lenders) holding Notes having
an unpaid principal balance equal to at least 51% of the aggregate Loans then
outstanding; and (iii) if Loans outstanding at such time are comprised of
Competitive Bid Advances only, Lenders (other than any Defaulting Lenders or
Designated Lenders) having Commitments equal to at least 51% of the Commitments
of all Lenders at such time (whether used or unused); and (b) if the
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<PAGE> 26
Commitments have been terminated, Lenders (other than any Defaulting Lenders but
including any Designated Lenders) whose Loans have an unpaid principal balance
equal to at least 51% of the aggregate Loans then outstanding.
"Restricted Payment": as to any Person, any dividend or other
distribution by such Person (whether in cash, securities or other property) with
respect to any shares of any class of equity securities or beneficial interests
of such Person, or any payment (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase,
redemption, retirement, acquisition, cancellation or termination of any such
shares or beneficial interests or any option, warrant or other right to acquire
any such shares or beneficial interests.
"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 Period:" the period from the Effective Date
through the day preceding the Revolving Credit Expiration Date.
"Revolving Credit Termination Date": the date that is 364 days
from the Effective Date, subject to extension in accordance with Section 2.18.
"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.
"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, limited liability company, joint venture or other business entity
of which such Person, directly or indirectly, either (i) in respect of a
corporation, owns or controls more than 50% of the outstanding Stock having
ordinary voting power to elect a majority of the board of directors or similar
managing body, irrespective of whether a class or classes shall or might have
voting power by reason of the happening of any contingency, or (ii) in respect
of an association, partnership, limited liability company, joint venture or
other
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<PAGE> 27
business entity, is entitled to share, either directly or indirectly through an
entity described in clause (i) above, in more than 50% of the profits and
losses, however determined.
"Subsidiary Guarantor" means the Subsidiaries of the Borrower
listed on Schedule 4.4 and designated thereof as a Subsidiary Guarantor, each
Required Additional Guarantor, and their successors and assigns; and "Subsidiary
Guarantors" shall mean all such guarantors, collectively.
"Tangible Net Worth": as of any date of determination thereof
with respect to the Borrower and its Subsidiaries, determined on a Consolidated
basis in accordance with GAAP, the remainder of (i) the amounts which would, in
conformity with GAAP, be included under "shareholder's equity" (or any like
caption) on a Consolidated balance sheet of the Borrower and its Subsidiaries as
at such date, minus (ii) 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).
"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 2.1(b).
"Term Loan Conversion Notice": a notice to the Administrative
Agent in the form of Exhibit G.
"Total Capital": on any date, the sum of, without duplication,
(i) all Indebtedness of the Borrower and its Subsidiaries on such date which, in
accordance with GAAP, is considered long term debt of the Borrower and its
Subsidiaries, (ii) the amounts which would, in conformity with GAAP, be included
under "shareholder's equity" (or any like caption) on a Consolidated balance
sheet of the Borrower and its Subsidiaries as at such date, (iii) the value of
all issued and outstanding preferred stock of the Borrower as set forth on the
balance sheet of the Borrower as at such date, and (iv) all Loans outstanding on
such date.
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<PAGE> 28
"Total Commitment Amount": (i) on any day during the 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.
"Unencumbered Asset": Any Operating Property which at any time
(i) is wholly owned in fee simple by the Borrower, a wholly owned Subsidiary of
the Borrower or a DownREIT Partnership (or is the subject of a Ground Lease),
(ii) is free and clear of all Liens (other than Liens permitted under clauses
(i), (ii), (iii), (iv), (v) (vi), (viii) and (ix) of Section 8.1), (iii) does
not have applicable to it (or to any such Ground Lease) any restriction on the
pledge, transfer, mortgage or assignment of such Operating Property or Ground
Lease (including any restriction imposed by the organizational documents of any
such Subsidiary or DownREIT Partnership), (iv) if owned by any such Subsidiary
or DownREIT Partnership, the Stock, partnership interests or membership
interests, as the case may be, of such Subsidiary or DownREIT Partnership that
are owned by the Borrower or any Subsidiary are not subject to any pledge or
security interest in favor of any Person other than the Borrower or a Subsidiary
Guarantor, (v) is not an Environmental Risk Property; (vi) does not have, to the
best of the Borrower's knowledge, any title, survey, environmental or other
defect which could reasonably be expected to materially and adversely affect the
value, use or marketability thereof, and (vii) is located within the contiguous
48 states of the continental United States; and "Unencumbered Assets" mean all
such Unencumbered Assets, collectively.
"Unencumbered Assets Coverage Ratio": on any date of
determination the ratio of (i) the sum of all Adjusted Net Operating Income for
all Unencumbered Assets of the Borrower and its Subsidiaries on a Consolidated
basis, plus the Borrower's Interest in all Adjusted Net Operating Income for all
Unencumbered Assets owned by a DownREIT Partnership, in each case for the fiscal
quarter most recently then ending, to (ii) the portion of the Consolidated
Interest Expense consisting of interest on all unsecured Indebtedness of the
Borrower and its Subsidiaries as of such fiscal quarter end.
"Unencumbered Asset Value": as of any date the quotient of (i)
an amount equal to the Adjusted Net Operating Income for all Unencumbered Assets
in the aggregate for the four fiscal quarters of the Borrower most recently
ending as of such date, divided by (ii) 10%. For purposes of any determination
of Unencumbered Asset Value, the following limitations and methodology shall
apply: (A) the Adjusted Net Operating Income of any Unencumbered Asset owned by
a DownREIT Partnership shall be based on the Borrower's Interest in the Adjusted
Net Operating Income for each such Unencumbered Asset for the four fiscal
quarters having ended as of such date; (B) in the event more than 10% of the
gross base rents payable under all leases for Properties of the Borrower, its
Subsidiaries or a DownREIT Partnership (including the Borrower's Interest in any
Property) shall be payable by one tenant and its Subsidiaries, then Unencumbered
Asset Value shall be reduced by the percentage amount of such excess multiplied
by the
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Unencumbered Asset Value attributable to the Properties leased or controlled by
such tenant and its Subsidiaries, and (C) in the event that the Borrower or a
Subsidiary of the Borrower shall not have owned an Unencumbered Asset for the
entire previous four fiscal quarters, then for the purposes of determining the
Unencumbered Asset Value with respect to such Unencumbered Asset, the Adjusted
Net Operating Income for such Unencumbered Asset shall be annualized in a manner
reasonably satisfactory to the Administrative Agent.
1.2. Other Definitional Provisions.
(a) All terms defined in this Agreement shall have the
meanings given such terms herein when used in the Loan Documents or any
certificate, opinion or other document made or delivered pursuant hereto or
thereto, unless otherwise defined therein.
(b) As used in the Loan Documents and in any certificate,
opinion or other document made or delivered pursuant hereto or thereto,
accounting terms not defined in Section 1.1, and accounting terms partly defined
in Section 1.1, to the extent not defined, shall have the respective meanings
given to them under GAAP.
(c) The words "hereof", "herein", "hereto" and "hereunder"
and similar words when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
schedule and exhibit references contained herein shall refer to Sections hereof
or schedules or exhibits hereto unless otherwise expressly provided herein.
(d) The word "or" shall not be exclusive; "may not" is
prohibitive and not permissive.
(e) Unless the context otherwise requires, words in the
singular number include the plural, and words in the plural include the
singular.
(f) Unless specifically provided in a Loan Document to the
contrary, references to time shall refer to New York City time.
2. AMOUNT AND TERMS OF LOANS.
2.1. Loans.
(a) Revolving Credit Loans. Subject to the terms and conditions
hereof, each Lender severally agrees to make revolving credit loans (each a
"Revolving Credit Loan" and, as the context may require, collectively with all
Revolving Credit Loans of such Lender and with the Revolving Credit Loans of all
other Lenders, the "Revolving Credit Loans") to the Borrower from time to time
during the Revolving
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Credit Period, in an aggregate principal amount not to exceed at any time
(exclusive of any Competitive Bid Advances of such Lender at such time) such
Lender's Commitment Amount. 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
2.3, 2.4 and 2.8, Revolving Credit Loans may be (a) ABR Advances, (b) Eurodollar
Advances, (c) Competitive Bid Advances or (d) any combination thereof.
(b) Term Loans. Subject to the terms and conditions hereof, 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 Administrative Agent of
a Term Loan Conversion Notice on any date that is at least 30, but not more than
60, days prior to the Revolving Credit Termination Date. Upon receipt of such
notice, the Administrative 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 any and all obligations of the Lenders to
make advances hereunder shall terminate. Subject to the provisions of Sections
2.3 and 2.8, Term Loans may continue to be maintained as (a) ABR Advances, (b)
Eurodollar Advances, or (c) any combination thereof.
2.2. Notes.
(a) Notes as Evidence of Indebtedness. The Revolving Credit
Loans of each Lender made as Conventional Advances and the Term Loans of each
Lender shall be evidenced by a promissory note of the Borrower, substantially in
the form of Exhibit H, 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 Revolving Credit Loans made as a Conventional Advances
and Term Loans of such Lender plus interest and other amounts due and owing to
the Lenders under the Loan Documents.
(b) The Notes Generally. 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 following information shall be recorded by each Lender on its
books and, prior to any transfer of any such Notes, endorsed by such Lender on
the schedule attached thereto or any continuation thereof: (i) the date and
amount of each Revolving Credit Loan of such Lender made as a Conventional
Advance; (ii) its character as an ABR Advance, a Eurodollar Advance or a
combination thereof; (iii) the interest rate and Interest Period applicable to
Eurodollar Advances; and (iv) each payment and prepayment of the principal
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.
2.3. Procedure for Revolving Credit Loan Borrowings Other than
Competitive Bid Borrowings.
(a) Revolving Credit Loans. Except for Revolving Credit
Loans which the Borrower has requested be made as Competitive Bid Advances (as
to which the provisions of Section 2.4 shall apply), and subject to the
limitations set forth in Sections 2.1(a) and 2.3(c), the Borrower may borrow
under the Commitments on any Business Day during the Revolving Credit Period by
providing notice thereof in accordance with Section 2.3(b).
(b) Borrowing Requests. To request Revolving Credit Loans
pursuant to Section 2.3(a), the Borrower shall notify the Administrative Agent
of such request by telephone (a) in the case of a Eurodollar Advance, not later
than 12:00 P.M., New York City time, two Business Days before the date of the
proposed borrowing of Revolving Credit Loans or (b) in the case of an ABR
Advance, not later than 12:00 P.M., New York City time, one Business Day before
the date of such proposed advance. Each such telephonic Borrowing Request shall
be irrevocable and shall be confirmed promptly by hand delivery or telecopy to
the Administrative Agent of a written Borrowing Request signed by the Borrower.
Each such telephonic and written Borrowing Request shall specify the following
information: (i) the aggregate amount of the requested borrowing of Revolving
Credit Loans; (ii) the date of such borrowing of Revolving Credit Loans, which
shall be a Business Day; (iii) whether the requested Revolving Credit Loan is to
be an ABR Advance or a Eurodollar Advance; (iv) in the case of a Eurodollar
Advance, the initial Interest Period to be applicable thereto, which shall be a
period contemplated by the definition of the term "Interest Period"; and (v) the
location and number of the Borrower's account to which funds are to be
disbursed, which shall comply with the requirements of Section 2.3(d).
(c) Limits on Advances. Each borrowing of (i) ABR Advances
shall be in a minimum 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
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$5,000,000 or such amount plus a whole multiple of $100,000 in excess thereof,
or, if less, the Available Commitment Amount.
(d) Funding of Revolving Credit Loans. Upon receipt of each
notice of borrowing from the Borrower, the Administrative 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 pursuant to
this Section available to the Administrative Agent for the account of the
Borrower at the office of the Administrative Agent set forth in Section 11.2 not
later than 12:30 P.M. on the relevant Borrowing Date requested by the Borrower
in funds immediately available to the Administrative Agent at such office. The
amounts so made available to the Administrative Agent on the Borrowing Date will
then, subject to the satisfaction of the terms and conditions of this Agreement,
as determined by the Administrative Agent, be made available on such date to the
Borrower by the Administrative Agent at the office of the Administrative 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 Administrative
Agent.
(e) Effect of Incomplete Borrowing Request. If no election
is made as to the whether the Revolving Credit Loans shall be ABR Advances or
Eurodollar Advances, then the requested Revolving Credit Loans shall be an ABR
Advance. If no Interest Period is specified with respect to any requested
borrowing of Eurodollar Advances, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(f) Administrative Agent's Assumption. Unless the
Administrative 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 Administrative
Agent such Lender's pro rata share of the Revolving Credit Loans requested by
the Borrower, the Administrative Agent may assume that such Lender has made such
share available to the Administrative Agent on the Borrowing Date in accordance
with this Section, provided that such Lender received notice of the proposed
borrowing from the Administrative Agent, and the Administrative 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 Administrative Agent, such Lender and
the Borrower severally agree to pay to the Administrative 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
Administrative 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
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Rate in effect on each such day (as determined by the Administrative Agent).
Such payment by the Borrower, however, shall be without prejudice to its rights
against such Lender. If such Lender shall pay to the Administrative 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.
2.4. Competitive Bid Borrowings and Procedure for Competitive Bid
Borrowings.
(a) Competitive Bid Borrowings. Subject to the terms and
conditions of this Agreement, each Lender severally agrees that during any Rated
Period, the Borrower may effect Competitive Bid Borrowings under this Section
2.4 from time to time on any Business Day during the Revolving Credit Period in
the manner set forth below, provided, however, that the principal balance of all
Competitive Bid Advances outstanding hereunder shall not at any time exceed the
lesser of (x) the Competitive Bid Ceiling, and (y) the Total Commitment Amount
less the outstanding principal balance of all Conventional Advances.
(b) Procedure for Competitive Bid Borrowings. The Borrower
may request a Competitive Bid Borrowing under this Section 2.4 during the
Revolving Credit Period by giving to the Administrative Agent, not later than
12:00 P.M. at least three Business Days prior to the date of the proposed
Competitive Bid Borrowing, a Competitive Bid Borrowing Request in the form of
Exhibit C, specifying (i) the proposed date of the Competitive Bid Borrowing,
(ii) the aggregate amount of the proposed Competitive Bid Borrowing (which
amount shall not be less than $5,000,000 or such amount plus a whole multiple of
$100,000 in excess thereof), (iii) the proposed Interest Period for the
Competitive Bid Advances to be made as part of such Competitive Bid Borrowing
(which Interest Period shall end not later than 5 days prior to the Revolving
Credit Termination Date, and shall otherwise comply with the applicable
provisions of the definition of "Interest Period"), and (iv) such other terms to
be applicable to such Competitive Bid Borrowing as the Borrower may specify. The
Administrative 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. Such notice shall not be delivered separately to any
Designated Lender, but shall be deemed delivered to a Designated Lender when
delivered to the Designating Lender responsible for having appointed such
Designated Lender as its Designated Lender.
(c) Decision of Lenders to make Competitive Bid Advances.
Each Lender may, if, in its sole discretion, it elects so to do, irrevocably
offer to make one or
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more Revolving Credit Loans as 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
Administrative Agent, before 12:00 P.M. two Business Days before the Borrowing
Date of such proposed Competitive Bid Borrowing of (i) 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 Section 2.4(a),
exceed such Lender's Commitment), and (ii) the rate or rates of interest
therefor and such Lender's Applicable Lending Office with respect to such
Competitive Bid Advance, provided that any such offer made by a Designated
Lender shall be made solely through the Designating Lender responsible for
having appointed such Designated Lender as its Designated Lender. No Lender
shall be required to specify in its Competitive Bid Advance offer whether such
Competitive Bid Advance will be funded by its Designated Lender. The
Administrative Agent shall notify the Borrower of all such offers before 12:30
P.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 11:30 A.M. two Business
Days before such proposed Borrowing Date. If any Lender other than BNY shall
fail to notify the Administrative Agent before 12:00 P.M., and if BNY in its
capacity as a Lender shall fail to notify the Borrower before 11:30 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 Administrative Agent unless such
offer is submitted to correct a manifest error in a prior offer.
(d) Borrower's Acceptance or Cancellation. The Borrower
shall, before 1:00 P.M. two Business Days before the date of such proposed
Competitive Bid Borrowing, either
(i) cancel such Competitive Bid Borrowing Request by
notice to the Administrative Agent to that effect, or
(ii) in its sole discretion, irrevocably accept one
or more of the offers made by a Lender or Lenders pursuant to paragraph
(c) above in ascending order of the rates offered therefor, by giving
notice to the Administrative 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 Administrative Agent on behalf of such Lender for such
Competitive Bid Advance pursuant to paragraph (c)) to be made by each
Lender as part of such Competitive Bid Borrowing, and reject any
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remaining offers made by Lenders pursuant to paragraph (c) above, by
giving the Administrative 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 pursuant to paragraph (c) above 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.
If the Borrower notifies the Administrative Agent that a
Competitive Bid Borrowing Request is cancelled pursuant to paragraph (d)(i)
above, the Administrative 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.
If the Borrower accepts one or more of the offers made by any
Lender or Lenders pursuant to paragraph (d)(ii) above, the Administrative 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 paragraph (c) above, of the date and aggregate amount of such
Competitive Bid Borrowing and whether any offer or offers made by such Lender
pursuant to paragraph (c) above have been accepted by the Borrower and (B) each
Lender whose offer to make a Competitive Bid Advance as part of such Competitive
Bid Borrowing (a "Participating Lender") of the amount of each Loan to be made
by such Lender as part of such Competitive Bid Borrowing has been accepted by
the Borrower, 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, or cause its Designated Lender, if any, to make
available, for the account of its Applicable Lending Office to the
Administrative Agent at its address specified in Section 11.2 such Lender's
portion of such Competitive Bid Borrowing, in funds immediately available to the
Administrative Agent at such office. Competitive Bid Borrowings may be funded by
a Lender's Designated Lender as provided in Section 11.8, however, the
Designating Lender of such Designated Lender shall be responsible for making
such Competitive Bid Advance should such Designated Lender
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fail to do so. Upon satisfaction of the applicable terms and conditions of this
Agreement and after receipt by the Administrative Agent of such amount from each
such Participating Lender, the Administrative Agent will make such amount
available on such date to the Borrower at the office of the Administrative 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 Administrative Agent. After each Competitive Bid Borrowing, if requested by
any Lender, the Administrative 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 Administrative 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 Administrative Agent may assume that such
Participating Lender has made such Participating Lender's portion of such
Competitive Bid Borrowing available to the Administrative Agent on such
Borrowing Date in accordance with this Section, and the Administrative 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 Administrative Agent,
such Participating Lender and the Borrower severally agree to pay to the
Administrative 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 Administrative 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
Administrative Agent under Section 2.4(d)(ii), and, in the case of such Lender,
the Federal Funds Rate in effect on such day (as determined by the
Administrative 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 Administrative Agent such corresponding amount, such
amount so paid shall constitute such Lender's Competitive Bid Advance as a part
of such Competitive Bid Advances for purposes of this Agreement, which
Competitive Bid Advance shall be deemed to have been made by such Participating
Lender on the Borrowing Date applicable thereto, but without prejudice to the
Borrower's rights against such Participating Lender.
Notwithstanding its appointment of a Designated Lender, no
Lender which is a Designating Lender shall be relieved of its obligation to fund
a Competitive Bid Advance, and no Designated Lender shall be deemed to assume
such obligation, prior to the time such Competitive Bid Advance is funded.
(e) Subsequent Competitive Bid Borrowings Permitted. Within
the limits and on the conditions set forth in this Section 2.4, the Borrower may
from time to
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time borrow under this Section 2.4, repay pursuant to paragraph (f) below, and
reborrow under this Section 2.4.
(f) Repayment of Competitive Bid Borrowings. The Borrower
shall repay to the Administrative 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 2.4(b) above) the then unpaid principal amount of
such Competitive Bid Advance.
(g) Interest on Competitive Bid Borrowings. 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 (or whose Designated Lender made) such Competitive Bid Advance in such
Participating Lender's notice with respect thereto delivered pursuant to Section
2.4(c) 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 2.4(b) above. Any Designated Lender which funds a
Competitive Bid Advance shall on and after the time of such funding become the
obligee under such Competitive Bid Advance.
(h) Competitive Bid Notes. At the request of any Lender, the
Borrower will deliver to such Lender a note, in the form mutually agreeable to
such Lender and the Borrower, evidencing the obligation of the Borrower to pay
the Competitive Bid Advances of such Lender, and interest thereon, in accordance
with Section 2.4(f).
(i) In General. 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.
2.5. Termination or Reduction of Commitments.
(a) Voluntary Reductions. The Borrower shall have the right,
upon at least three Business Days' prior written notice to the Administrative
Agent, at any time to terminate the Commitments or from time to time to
permanently reduce the Commitments, provided that (i) the total of the
Commitments shall not be reduced below an amount equal to the sum of the
aggregate principal balance of the Revolving Credit Loans then outstanding
thereunder, and (ii) any such reduction of the Commitments shall be in the
minimum amount of $5,000,000 or such amount plus a whole multiple of $100,000 in
excess thereof.
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(b) In General. Reductions of the Commitments shall be
applied pro rata according to the Commitments of each Lender, as the case may
be. Simultaneously with each reduction of the Commitments under this Section,
the Borrower shall pay the Facility Fee accrued (but not yet paid) on the amount
by which the Commitments have been reduced and prepay the Loans outstanding
thereunder by the amount, if any, by which the aggregate unpaid principal
balance of such Loans exceeds the amount of the 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. No reduction or termination of the Commitments may be reinstated.
2.6. Repayment of Loans; Evidence of Debt
(a) Promise to Pay. The Borrower hereby unconditionally
promises to pay to the Administrative Agent for the account of each Lender the
then unpaid principal amount of each Revolving Credit Loan and/or Term Loan, as
the case may be, on the Maturity Date. Competitive Bid Borrowings shall be paid
pursuant to Section 2.4.
(b) Lenders' Accounts. Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the debt of
the Borrower to such Lender resulting from each Loan made by such Lender,
including the amounts of principal and interest payable and paid to such Lender
from time to time hereunder.
(c) Administrative Agent's Accounts. The Administrative
Agent shall maintain accounts in which it shall record (i) the amount of each
Revolving Credit Loan, Term Loan and Competitive Bid Borrowing made hereunder,
the type of Advance thereof and the Interest Period applicable thereto, (ii) the
amount of any principal or interest due and payable or to become due and payable
from the Borrower to each Lender hereunder and (iii) the amount of any other sum
received by the Administrative Agent hereunder for the account of the Lenders
and each Lender's share thereof.
(d) Entries Made in Accounts. The entries made in the
accounts maintained pursuant to paragraphs (b) and (c) of this Section shall, to
the extent not inconsistent with any entries made in any Note and absent
manifest error, be prima facie evidence of the existence and amounts of the
obligations recorded therein, provided that the failure of any Lender or the
Administrative Agent to maintain such accounts or any error therein shall not in
any manner affect the obligation of the Borrower to repay the Loans in
accordance with the terms of this Agreement.
(e) Loans Evidenced by Notes. The Loans and interest thereon
shall at all times (including after assignment pursuant to Section 11.7) be
represented by one or more Notes in like form payable to the order of the payee
named therein and its registered assigns.
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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 Administrative
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 Administrative Agent shall promptly
notify each Lender in respect thereof. Partial prepayments of ABR Advances
and/or Eurodollar Advances shall be in an aggregate minimum 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 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 be at least (subject to Section 2.3(c)) $1,000,000 or
such amount plus a whole multiple of $100,000 in excess thereof. Notwithstanding
anything in this Agreement to the contrary, voluntary prepayments by the
Borrower of Competitive Bid Advances are not permitted.
(b) Term Loan. Any prepayments of the Term Loans shall not
be readvanced.
(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.
2.8. Conversions.
(a) Conversion Elections. The Borrower may elect from time
to time to convert Eurodollar Advances to ABR Advances by giving the
Administrative 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 Administrative
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
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<PAGE> 40
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 such notice shall be in the form
of Exhibit M and must be delivered to the Administrative Agent prior to 12:00
noon on the Business Day required by this Section for the delivery of such
notices to the Administrative Agent. The Administrative 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 $5,000,000 or such amount plus a whole multiple of $100,000
in excess thereof. This Section shall not apply to Competitive Bid Borrowings,
which may not be converted or continued beyond the Interest Period applicable
thereto.
(b) Effect on Conversions if an Event of Default.
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 Administrative
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 Administrative 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) Conversion not a Borrowing. Each conversion shall be
effected by each Lender by applying the proceeds of its new ABR Advance or
Eurodollar Advance, as the case may be, to its Advances (or portion thereof)
being converted (it being understood that such conversion shall not constitute a
borrowing for purposes of Sections 4, 5 or 6).
2.9. 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:
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<PAGE> 41
<TABLE>
<CAPTION>
ADVANCES RATE
-------- ----
<S> <C>
Each ABR Advance Alternate Base Rate.
Each Eurodollar Eurodollar Rate for the applicable Interest Period plus the
Advance Applicable Margin.
Competitive Bid The rate for the applicable Competitive Bid Advance
Advance determined pursuant to Section 2.4.
</TABLE>
(b) Event of Default. After the occurrence and during the
continuance of an Event of Default, the outstanding principal balance of the
Loans 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%.
(c) Interest Payment Dates. Accrued interest on each Loan
shall be payable in arrears on each Interest Payment Date for such Loan,
provided that (i) interest accrued pursuant to paragraph (b) of this Section
shall be payable on demand, (ii) in the event of any repayment or prepayment of
any Loan, accrued interest on the principal amount repaid or prepaid shall be
payable on the date of such repayment or prepayment and (iii) in the event of
any conversion of any Eurodollar Advance prior to the end of the current
Interest Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.
(d) 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. 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 Administrative 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 Administrative Agent pursuant to this Agreement
shall be conclusive and binding on the Borrower and the Lenders absent manifest
error. At no time shall the interest rate payable on the Loans of any Lender,
together with the Facility Fee and all other amounts
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<PAGE> 42
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, the BNY 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 Administrative 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 Administrative 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 Administrative 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 Administrative 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
Administrative Agent (by notice to the Borrower promptly upon either (x) the
Administrative 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 Administrative Agent
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<PAGE> 43
having been notified by such Required Lenders that circumstances no longer
render the Advances (or any portion thereof) Affected Advances), no further
Eurodollar Advances shall be required to be made by the Lenders nor shall the
Borrower have the right to convert all or any portion of the Loans to Eurodollar
Advances.
2.11. Taxes; Net Payments.
(a) All payments made by the Borrower or Subsidiary
Guarantor under the Loan Documents shall be made free and clear of, and without
reduction for or on account of, any taxes, levies, imposts, deductions, charges
or withholdings 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 this Agreement and the 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 hereafter imposing upon the Borrower, an obligation to
withhold any portion of the payments made by the Borrower under the Loan
Documents, that payments to the Administrative 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 hereafter enacted, promulgated, approved or
issued, or any change in any presently existing law, regulation, treaty or
directive, 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, such Lender shall so notify the Administrative
Agent and the Administrative Agent shall forthwith give notice thereof to the
other Lenders and the Borrower, whereupon (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
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<PAGE> 44
Lender shall notify the Administrative Agent and the Borrower of such event.
Notwithstanding the foregoing, to the extent that the conditions giving rise to
the notice requirement set forth in this Section can be eliminated by the
transfer of such Credit Party's Loans or Commitment to another of its branches,
and to the extent that such transfer is not inconsistent with such Credit
Party's internal policies of general application and only if, as determined by
such Credit Party in its sole discretion, the transfer of such Loan or
Commitment, as the case may be, would not otherwise adversely affect such Loans
or such Credit Party, the Borrower may request, and such Lender shall use
reasonable efforts to effect, such transfer.
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 Credit Party (or any corporation
directly or indirectly owning or controlling such Credit Party) with any request
or directive, whether or not having the force of law, from any central bank or
other Governmental Authority, agency or instrumentality:
(a) does or shall subject any Credit Party 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 Credit Party 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 Credit Party or its Applicable Lending Office for any of such
Advances by the jurisdiction in which such Credit Party is incorporated or has
its principal office or such Applicable Lending Office, including, in the case
of Credit Parties 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 Credit Party in respect of its Eurodollar Advances, which, in the case of
Eurodollar Advances, 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 Credit
Party of making, issuing, 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
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<PAGE> 45
shall pay such Credit Party, upon its demand, any additional amounts necessary
to compensate such Credit Party for such additional cost or reduction in such
amount receivable which such Credit Party deems to be material as determined by
such Credit Party; provided, however, that nothing in this Section shall require
the Borrower to indemnify the Credit Parties with respect to withholding Taxes
for which the Borrower has no obligation under Section 2.11. No failure by any
Credit Party to demand compensation for any increased cost during any Interest
Period shall constitute a waiver of such Credit Party'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
Credit Party to the Borrower shall be conclusive absent manifest error. The
obligations of the Borrower under this Section shall survive the termination of
this Agreement and any of the Commitments or the payment of the Notes and all
other amounts payable under the Loan Documents. Failure to demand compensation
pursuant to this Section shall not constitute a waiver of such Credit Party's
right to demand such compensation. To the extent that any increased costs of the
type referred to in this Section are being incurred by a Credit Party and such
costs can be eliminated or reduced by the transfer of such Credit Party's Loans
or Commitment to another of its branches, and to the extent that such transfer
is not inconsistent with such Credit Party's internal policies of general
application and only if, as determined by such Credit Party in its sole
discretion, the transfer of such Loan or Commitment, as the case may be, would
not otherwise materially adversely affect such Loan or such Credit Party, the
Borrower may request, and such Lender shall use reasonable efforts to effect,
such transfer.
2.14. Indemnification for Break Funding Losses.
Notwithstanding anything contained herein to the contrary, if
(i) the Borrower shall fail to borrow or convert on a Borrowing Date or
Conversion Date after it shall have given notice to do so in which it shall have
requested a Eurodollar Advance pursuant to Section 2.3 or 2.8, (ii) the Borrower
shall fail to borrow after having accepted one or more offers of Competitive Bid
Advances under Section 2.4, or (iii) a Eurodollar Advance or Competitive Bid
Advance shall be terminated or prepaid for any reason prior to the last day of
the Interest Period applicable thereto (including, without limitation, any
mandatory prepayment or a prepayment resulting from acceleration or illegality),
the Borrower agrees to indemnify each Credit Party against, and to pay on demand
directly to such Credit Party, any loss or expense suffered by such Credit Party
as a result of such failure to borrow or convert, or such termination or
repayment, including, without limitation, an amount, if greater than zero, equal
to:
A x (B-C) x D
---
360
where:
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<PAGE> 46
"A" equals such Credit Party's pro rata share of the Affected Principal
Amount;
"B" equals the applicable Eurodollar Rate or the rate which such
Competitive Bid Advance bears to such Loan, as the case may be;
"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 Credit Party would have quoted) in an amount equal
approximately to such Credit Party'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 Credit
Party;
"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 Credit Party) suffered by such Credit Party
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. A statement setting forth
the calculations of any amounts payable pursuant to this Section submitted by a
Credit Party to the Borrower shall be conclusive and binding on the Borrower
absent manifest error. The obligations of the Borrower under this Section shall
survive the termination of this Agreement and the Commitments and the payment of
the Notes and all other amounts payable under the Loan Documents.
2.15. Use of Proceeds.
The proceeds of Loans shall be used solely for general business
purposes, and such use shall conform to the provisions of Section 4.11, provided
that the first Loans hereunder shall be applied to pay in full any loans
outstanding under the Existing Credit Agreements, together with all interest,
fees, breakage costs and other amounts outstanding thereunder.
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<PAGE> 47
2.16. Capital Adequacy.
If (i) after the date hereof, 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 or not
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 Credit Party
(or any lending office of such Credit Party) or any corporation directly or
indirectly owning or controlling such Credit Party or imposes any restriction on
or otherwise adversely affects such Credit Party (or any lending office of such
Credit Party) or any corporation directly or indirectly owning or controlling
such Credit Party and such Credit Party shall have reasonably determined that
such enactment, promulgation, change or compliance has the effect of reducing
the rate of return on such Credit Party's capital or the asset value to such
Credit Party of any Loan made by such Credit Party 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 Credit Party could have achieved but for such
enactment, promulgation, change or compliance (after taking into account such
Credit Party's policies regarding capital adequacy) by an amount deemed by such
Credit Party to be material, then, upon demand by such Credit Party, the
Borrower shall promptly pay to such Credit Party such additional amount or
amounts as shall be sufficient to compensate such Credit Party 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 Administrative Agent
setting forth the determination of such amount or amounts that will compensate
such Credit Party for such reductions shall be presumed correct absent manifest
error. No failure by any Credit Party to demand compensation for such amounts
hereunder shall constitute a waiver of such Credit Party's right to demand such
compensation at any time. Such Credit Party shall, however, use reasonable
efforts to notify the Borrower of such claim within 90 days after the officer of
such Credit Party 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 this Agreement and
the Commitments and the payment of the Notes and all other amounts payable under
the Loan Documents.
2.17. Administrative Agent's Records.
The Administrative Agent's records with respect to the Loans,
the interest rates applicable thereto, each payment by the Borrower of principal
and interest on the
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<PAGE> 48
Loans, and fees, expenses and any other amounts due and payable in connection
with this Agreement shall be presumptively correct absent manifest error as to
the amount of the Loans, and the amount of principal and interest paid by the
Borrower in respect of such Loans and as to the other information relating to
the Loans, and amounts paid and payable by the Borrower hereunder and under the
Notes. The Administrative 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.
2.18. Extension of Revolving Credit Termination Date.
Provided that no Default or Event of Default exists during the
periods set forth below, the Borrower may request an extension of the Revolving
Credit Termination Date, such extension to be for a period of no more than 364
days. The Borrower shall give notice of such request to the Administrative Agent
at least 60 days prior to the then current Revolving Credit Termination Date.
Such extension of the Revolving Credit Termination Date is subject to the
written consent of the Administrative Agent, the Co-Documentation Agents and
each Lender, the same to be evidenced by an appropriate amendment to this
Agreement duly executed by the Borrower, the Administrative Agent, the
Co-Documentation Agents and each Lender, and acknowledged and consented to by
each Subsidiary Guarantor. Each Lender, the Administrative Agent and the
Co-Documentation Agents agree to use reasonable efforts to respond to the
Borrower's request for an extension of the Revolving Credit Termination Date at
least 30 days before the Revolving Credit Termination Date, provided, however,
that the failure of any Lender, the Administrative Agent or the Co-Documentation
Agents to so respond shall not create any claim against it or be construed as
such Person's consent to an extension of the Revolving Credit Termination Date
(and any such failure to respond 30 days before the Revolving Credit Termination
Date shall be deemed to be such Persons refusal to consent to such extension).
3. FEES; PAYMENTS
3.1. Facility Fee.
(a) The Borrower agrees to pay to the Administrative Agent,
for the account of the Lenders in accordance with each Lender's Commitment
Percentage, a fee (the "Facility Fee"), from the Effective Date through the
Maturity Date, computed as follows: during the Revolving Credit Period and while
any Term Loans are outstanding, an amount, determined periodically as
hereinafter set forth, equal to the product of (i) the Applicable Facility Fee
Percentage times (ii) the average daily Total Commitment Amount (during each
such period included in the Revolving Credit Period), or the average daily
outstanding principal balance of all Term Loans (during each such period
- 43 -
<PAGE> 49
after the Revolving Credit Loans are converted to Term Loans as contemplated by
Section 2.1(b)), as the case may be. 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 any
optional reduction of the Total Commitment Amount, and on the Maturity Date. 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.
(b) The Borrower agrees to pay any other fees payable to any
Credit Party under any separate agreement at the times so agreed upon in such
separate agreements.
(c) The Facility Fee shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for distribution
directly to the Credit Party to whom such Facility Fee is payable. The Facility
Fee shall not be refundable under any circumstances.
3.2. Payments; Application of Payments.
Each payment, including each prepayment, of principal and
interest on the Loans and the Facility Fee shall be made by the Borrower to the
Administrative Agent, without set-off, deduction or counterclaim, at its office
set forth in Section 11.2 in funds immediately available to the Administrative
Agent at such office by 12:00 noon on the due date for such payment. Promptly
upon receipt thereof by the Administrative Agent, the Administrative 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 of principal or interest due on such
Competitive Bid Advances in accordance with Sections 2.4(c) and (d), and (iii)
in the case of the Facility Fee, to all Lenders pro rata according to each
Lender's Commitment Percentage thereof. The failure of the Borrower to make any
such payment by such time shall not constitute a default hereunder, provided
that such payment is made on such due date, but any such payment made after
12:00 noon on such due date shall be deemed to have been made on the next
Business Day for the purpose of calculating interest on amounts outstanding on
the Loans. If any payment hereunder or under the Notes shall be due and payable
on a day which is not a Business Day, the due date thereof (except as otherwise
provided in the definition of Interest Period) shall be extended to the next
Business Day and (except with respect to payments in respect of the Facility
Fee) interest shall be payable at the applicable rate specified herein during
such extension. If any payment is made with respect to any Eurodollar Advance or
Competitive Bid Advance
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<PAGE> 50
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 Administrative Agent and the Lenders to enter
into this Agreement and to make the Loans the Borrower makes the following
representations and warranties to the Administrative Agent and each Lender:
4.1. Existence and Power.
(a) The Borrower is a Maryland corporation duly organized
and validly existing and in good standing under the laws of Maryland, has all
requisite power and authority to own its Property and to carry on its business
as now conducted, and 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) Each Subsidiary of the Borrower (including each
Subsidiary Guarantor) is a corporation, partnership, limited liability company,
real estate investment trust or business trust, is validly existing and in good
standing under the laws of the jurisdiction of its organization, has all
requisite power and authority to own its Property and to carry on its business
as now conducted, and is in good standing and authorized to do business in each
other 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.
4.2. Authority.
The Borrower has full legal power and authority to enter into,
execute, deliver and perform the terms of the Loan Documents to which it is a
party 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 corporate action.
4.3. Binding Agreement.
(a) The Loan Documents to which the Borrower is a party
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
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bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally.
(b) The execution, delivery and performance by the Borrower
of the Loan Documents to which it is a party does not violate the provisions of
any applicable statute, law (including, without limitation, any applicable usury
or similar law), rule or regulation of any Governmental Authority.
4.4. Subsidiaries; DownREIT Partnerships.
As of the Effective Date, the Borrower has only the Subsidiaries
set forth on Schedule 4.4. Schedule 4.4 sets forth the name of, and the
ownership interest of the Borrower in, each Subsidiary of the Borrower and
identifies each Subsidiary that is a Subsidiary Guarantor, in each case as of
the Effective Date. The shares of each corporate Subsidiary of the Borrower that
are owned by the Borrower 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
(other than Liens applicable to a partner under the terms of any partnership
agreement to secure the Borrower's obligation to make capital contributions or
similar payments thereunder). As of the Effective Date, the only DownREIT
Partnerships are Excel Realty Partners, L.P. and E.H. Properties, L.P.
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 of the Borrower) pending or, to the
knowledge of the Borrower, threatened against the Borrower or any Subsidiary of
the Borrower 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 franchise, right, license, permit
or similar authorization held by the Borrower or any Subsidiary of the Borrower,
which rescission, termination or cancellation could reasonably be expected to
have a Material Adverse Effect.
(b) As of the date hereof, Schedule 4.5 sets forth all
actions, suits and 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 of the Borrower) pending or, to the knowledge of the Borrower,
threatened against the Borrower, any Subsidiary of the Borrower or any of their
respective Properties or rights which, if adversely determined, could have a
Material Adverse Effect.
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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 be obtained by the Borrower to authorize, or
is required in connection with the execution, delivery and performance of the
Loan Documents or is required to be obtained by the Borrower as a condition to
the validity or enforceability of the Loan Documents.
4.7. No Conflicting Agreements.
Neither the Borrower nor any Subsidiary of the Borrower is in
default beyond any applicable grace or cure period under any mortgage,
indenture, contract or agreement to which it is a party or by which it or any of
its Property is bound, the effect of which default could reasonably be expected
to have a Material Adverse Effect. The execution, delivery or carrying out of
the terms of the Loan Documents will not constitute a default under, or result
in the creation or imposition of, or obligation to create, any Lien upon any
Property of the Borrower or any Subsidiary of the Borrower pursuant to the terms
of any such mortgage, indenture, contract or agreement.
4.8. Compliance with Applicable Laws.
Neither the Borrower nor any Subsidiary of the Borrower 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 of the Borrower is in
compliance in all material respects with all statutes, regulations, rules and
orders applicable to Borrower or such Subsidiary of all Governmental
Authorities, including, without limitation, (i) Environmental Laws and ERISA, a
violation of which could reasonably be expected to have a Material Adverse
Effect and (ii) Sections 856-860 of the Code, compliance with which is required
to preserve the Borrower's status as a REIT.
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 permitted under Section 7.4) in
which the failure to pay could reasonably be expected to have a Material Adverse
Effect, and no tax Liens have been filed with respect thereto. The charges,
accruals and reserves on the books of the Borrower and each Subsidiary of the
Borrower 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
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Borrower knows of no unpaid assessment which is due and payable against it or
any of its Subsidiaries or any claims being asserted which could reasonably be
expected to have a Material Adverse Effect.
4.10. Governmental Regulations.
Neither the Borrower nor any Subsidiary of the Borrower is
subject to regulation under the Public Utility Holding Company Act of 1935, as
amended, the Federal Power Act, as amended, or the Investment Company Act of
1940, as amended, and neither the Borrower nor any Subsidiary of the Borrower is
subject to any statute or regulation which prohibits or restricts the incurrence
of Indebtedness under the Loan Documents, including, without limitation,
statutes or regulations relative to common or contract carriers or to the sale
of electricity, gas, steam, water, telephone, telegraph or other public utility
services.
4.11. Federal Reserve Regulations; Use of Loan Proceeds.
Neither the Borrower nor any Subsidiary of the Borrower 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 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.
As of the Effective Date, 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 Administrative
Agent and each Lender as required by Section 7.2(d). As of December 31, 1998,
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.
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4.13. Financial Statements.
The Borrower has heretofore delivered to the Administrative
Agent and the Lenders (i) copies of the audited Consolidated Balance Sheet of
the Borrower and its Consolidated Subsidiaries as of December 31, 1998, and the
related Consolidated Statements of Operations, Stockholders' Equity and Cash
Flows for the Borrower and its Consolidated Subsidiaries for the five months
ended December 31, 1998 and the 12 months ended July 31, 1998, and (ii) the
Consolidated Statements of Income and Cash Flows for the Borrower and its
Consolidated Subsidiaries for the fiscal quarters of the Borrower ending March
31, 1999 and June 30, 1999, certified by its Chief Financial Officer
(collectively, 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 Consolidated
Subsidiaries as of the dates and for the periods indicated therein 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 of
the Borrower 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 June 30,
1999 through the Effective Date there has been no material adverse change in the
financial condition or business of the Borrower and its Subsidiaries taken as a
whole.
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. There
are no unpaid or outstanding real estate or similar taxes or assessments on or
against any Real Property other than (i) real estate or other taxes or
assessments that are not yet due and payable, and (ii) such taxes as the
Borrower or any Subsidiary of the Borrower is contesting in good faith or which
individually or in the aggregate could not reasonably be expected to have a
Materially Adverse Effect. There are no pending eminent domain proceedings
against any Real Property, and, to the knowledge of the Borrower, no such
proceedings are presently threatened or contemplated by any Governmental
Authority against any Real Property, which individually or in the aggregate
could reasonably be expected to have a Material Adverse Effect. None of the Real
Property is now damaged as a result of any fire, explosion, accident, flood or
other casualty which individually or in the aggregate could reasonably be
expected to have a Material Adverse Effect.
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,
in each case that are material and necessary for the conduct of its business,
with no known conflict with the
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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 of its Subsidiaries is in
compliance with the requirements of all applicable Environmental Laws except for
such non-compliance which could not, either individually or in the aggregate, be
reasonably expected to have a Material Adverse Effect.
(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 violation, in the case of either (i), (ii) or (iii)
could, either individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(c) Neither the Borrower nor any of its Subsidiaries (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
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the Borrower or any Subsidiary of the Borrower) or the release or threatened
release of any Hazardous Substance into the environment which, in either case,
could, either individually or in the aggregate, reasonably be expected to have 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 of the
Borrower) or the release or threatened release of any Hazardous Substance into
the environment which, in either case, could, either individually or in the
aggregate, reasonably be expected to have 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 of the Borrower) or a release or threatened release of any
Hazardous Substance into the environment for which the Borrower or any
Subsidiary of the Borrower is or may be liable the results of which could, in
either case, either individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect, or (iv) has received notice that the Borrower or
any Subsidiary of the Borrower is or may be liable to any Person under any
Environmental Law which liability could, either individually or in the
aggregate, reasonably be expected to have 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 of its Subsidiaries 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 of its Subsidiaries 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 adversely affect or impair the
revenue or cash flow of the Borrower or such Subsidiary in such a manner as
could reasonably be expected to have a Material Adverse Effect, or materially
and adversely affect or impair the ability of the Borrower or such Subsidiary to
perform its obligations under the Loan Documents. The Borrower does not
presently anticipate that future expenditures by the Borrower or any Subsidiary
of the Borrower 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.
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4.19. Solvency.
On the Effective Date and immediately following the making of
each Loan, and after giving effect to the application of the proceeds of such
Loan: (a) the fair value of the assets of the Borrower and its Subsidiaries,
taken as a whole, at a fair valuation, will exceed the debts and liabilities,
including Contingent Obligations, of the Borrower and its Subsidiaries, taken as
a whole; (b) the present fair saleable value of the property of the Borrower and
its Subsidiaries, taken as a whole, will be greater than the amount that will be
required to pay the probable liability of the debts and other liabilities,
subordinated, contingent or otherwise of the Borrower and its Subsidiaries, as
such debts and other liabilities become absolute and matured; (c) the Borrower
and its Subsidiaries, taken as a whole, will be able to pay its debts and
liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (d) the Borrower and its
Subsidiaries, taken as a whole, will not have unreasonably small capital with
which to conduct the business in which it is engaged as such business is now
conducted and is proposed to be conducted hereafter.
4.20. REIT Status.
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 compliance in all material respects with
all Code sections applicable to REITs generally and the regulations and rulings
issued thereunder.
4.21. Rent Roll and List of Unencumbered Assets.
A true, correct and complete Rent Roll, dated not earlier than
30 days prior to the date of this Agreement, and a list of all the Unencumbered
Assets of the Borrower as of such date is attached hereto as Schedule 4.21.
4.22. Year 2000.
The Borrower has completed its assessment of its centralized
corporate business and technical information systems as to Year 2000 compliance
and functionality and has completed its remediation of such systems as more
particularly set forth on Schedule 4.22. 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 as more
particularly set forth on Schedule 4.22. All statements and disclosures on
Schedule 4.22 are true and correct in all material respects and fairly present
the Year 2000 preparedness of the Borrower.
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4.23. Operation of Business.
The Borrower is a self-advised, and self-managed REIT.
4.24. No Misrepresentation.
No representation or warranty contained herein and no
certificate or report furnished or to be furnished by the Borrower or any
Subsidiary of the Borrower 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 Administrative Agent shall have received a
certificate, dated the first Borrowing Date, of the Secretary or Assistant
Secretary of the Borrower substantially in the form of Exhibit I (i) attaching a
true and complete copy of the resolutions of its Board of Directors authorizing
the execution and delivery of the Loan Documents by the Borrower and the
performance of the Borrower's obligations thereunder, and of all other documents
evidencing other necessary action (in form and substance reasonably satisfactory
to the Administrative Agent) taken by it to authorize the Loan Documents and the
transactions contemplated thereby, (ii) attaching a true and complete copy of
its articles of incorporation and by-laws, (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) certifying that said
corporate charter and by-laws are true and complete copies thereof, are in full
force and effect and have not been amended or modified.
(b) The Administrative Agent shall have received a
certificate, dated the first Borrowing Date, of the Secretary or Assistant
Secretary of each Subsidiary Guarantor substantially in the form of Exhibit J
(i) attaching a true and complete copy of the resolutions of its Board of
Directors or Trustees, as the case may be, authorizing its execution and
delivery of the Guaranty and the performance of its obligations thereunder, and
of all other documents evidencing other necessary action (in form and substance
reasonably satisfactory to the Administrative Agent) taken by it to authorize
the Guaranty and the transactions contemplated thereby, (ii) attaching a true
and complete copy of its
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articles of incorporation or corporate charter or declaration of trust and, if
applicable, by-laws, (iii) setting forth the incumbency of its officer or
officers who may sign the Guaranty, including therein a signature specimen of
such officer or officers, and (iv) certifying that said articles of
incorporation, corporate charter or declaration of trust and, if applicable,
by-laws, are true and complete copies thereof, is in full force and effect and
has not been amended or modified.
(c) The Administrative Agent shall have received
certificates of good standing for the Borrower from the Maryland State
Department of Assessments and Taxation and for each Subsidiary Guarantor from
the Secretary of State for the State in which such Subsidiary Guarantor is
incorporated, and for the Borrower from each jurisdiction other than Maryland 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 Administrative Agent shall have received counterparts of
this Agreement signed by each of the parties hereto (or receipt by the
Administrative Agent from a party hereto of a facsimile signature page signed by
such party which shall have agreed to promptly provide the Administrative Agent
with originally executed counterparts hereof).
5.3. Notes.
The Administrative Agent shall have received the Notes, duly
executed by an Authorized Signatory of the Borrower.
5.4. Guaranty.
The Administrative Agent shall have received counterparts of the
Guaranty signed by each of the Subsidiary Guarantors (or receipt by the
Administrative Agent from a party hereto of a facsimile signature page signed by
such party which shall have agreed to promptly provide the Administrative Agent
with originally executed counterparts hereof).
5.5. Other Credit Agreement.
The Administrative Agent shall have received counterparts of the
Other Credit Agreement signed by each of the parties thereto (or receipt by the
Administrative Agent from a party thereto of a facsimile signature page signed
by such party which shall have agreed to promptly provide the Administrative
Agent with originally executed counterparts hereof), and the Borrower shall have
complied with all other conditions of Article 5 of the Other Credit Agreement
which are conditions precedent to the first loan thereunder.
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5.6. 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 Administrative Agent shall have received a
certificate of an Authorized Signatory of the Borrower to the foregoing effects.
5.7. Opinion of Counsel to the Borrower.
The Administrative Agent shall have received an opinion of (i)
Hogan & Hartson, L.L.P., outside counsel to the Borrower, and (ii) Steven F.
Siegel, Esq., in-house counsel to the Borrower, and (iii) counsel to each
Subsidiary Guarantor, each addressed to the Administrative Agent and the
Lenders, and each dated the first Borrowing Date, covering the matters set forth
in Exhibit K.
5.8. Fees.
The Facility Fee, to the extent then due and payable, and all
fees payable to the Administrative Agent, the Lead Arranger, the
Co-Documentation Agents and the Lenders shall have been paid.
5.9. 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.
5.10. Year 2000 Assurances.
On the Effective Date, the Administrative Agent shall have
received such documentation and information from the Borrower and its
Subsidiaries as may be reasonably satisfactory to the Administrative Agent
demonstrating that the representations of the Borrower in Section 4.22 are true
and correct as of the Effective Date.
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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, and after any conversion of the Revolving Credit Loans to
Term Loans, (a) the Borrower shall be in compliance with all of the terms,
covenants and conditions hereof, (b) there shall not exist and be continuing any
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 (except for
representations and warranties that speak as of a specific date, which need only
be true and correct as of such date), and (d) the aggregate outstanding
principal balance of the Revolving Credit Loans shall not exceed the Total
Commitment Amount. Each notice requesting a Revolving Credit Loan, a Competitive
Bid Borrowing or the conversion of Revolving Credit Loans to Term Loans shall be
deemed to constitute a representation and warranty by the Borrower on the date
thereof 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 Administrative Agent on or before the
applicable Borrowing Date shall have been executed and shall have been delivered
at the office of the Administrative Agent set forth in Section 11.2 on or before
such Borrowing Date.
6.3. Borrowing Request; Term Loan Conversion Notice.
With respect to each borrowing of a Revolving Credit Loan, the
Administrative Agent shall have received a Conventional Borrowing Request or a
Competitive Bid 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, the Administrative Agent shall have timely
received a Term Loan Conversion Notice from the Borrower.
6.4. Documentation and Proceedings.
All corporate 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
Administrative Agent and the Administrative Agent shall have received all
information and copies of all documents
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which the Administrative 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 or performed by the
Borrower 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 or 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 Administrative Agent with respect
to the applicable Borrowing Date, there shall have been delivered to the
Administrative Agent favorable supplementary opinions of counsel to the
Borrower, addressed to the Administrative Agent and the Lenders and dated such
Borrowing Date, covering such matters incident to the transactions contemplated
herein as the Administrative Agent may reasonably request.
6.8. Other Documents.
The Administrative Agent shall have received such other
documents and information with respect to the Borrower and its Subsidiaries or
the transactions contemplated hereby as the Administrative Agent or the Lenders
shall reasonably request.
7. AFFIRMATIVE COVENANTS
The Borrower agrees that, so long as any Loan remains outstanding and
unpaid, any other amount is owing under any Loan Document to any Lender or the
Administrative Agent, or any Lender shall have any obligation to make or
maintain any Loan, the Borrower shall:
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7.1. Financial Statements.
Maintain a standard system of accounting in accordance with
GAAP, and furnish or cause to be furnished to the Administrative Agent and each
Lender:
(a) Annual Statements. 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 as at the end of such fiscal year, together
with the related Consolidated Statements of Income, 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 Income, 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 Consolidated 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
Consolidated 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) Annual Operating Statements and Rent Roll. As soon as
available, but in any event within 60 days after the end of each fiscal year of
the Borrower, copies of (i) the operating statements (in a form reasonably
satisfactory to the Administrative Agent) for all Real Property of the Borrower,
and (ii) a Rent Roll, each of which shall be certified by the Chief Financial
Officer to be true, correct and complete in all material respects.
(c) Quarterly Statements. 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 unaudited Consolidated Balance Sheet of the Borrower as
at the end of each such quarterly period, together with the related unaudited
Consolidated Statements of Income and Cash Flows for the elapsed portion of the
fiscal year through the end of such period, 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 as being true, correct and
complete in all material respects and as presenting fairly the Consolidated
financial condition and the Consolidated results of operations of the Borrower
and its Subsidiaries.
(d) Quarterly Information Regarding Unencumbered Assets. As
soon as available, but in any event 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
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Borrower), a list of all the Unencumbered Assets owned by the Borrower, any
wholly owned Subsidiary of the Borrower and each DownREIT Partnership as of the
last day of such fiscal quarter setting forth the following information with
respect to each such Unencumbered Asset as of such date: (i) asset type (i.e.,
retail shopping center or residential apartment building); (ii) location; (iii)
percentage of the Unencumbered Asset owned by the Borrower, any wholly owned
Subsidiary of the Borrower and each DownREIT Partnership; and (iv) the Net
Operating Income for such Unencumbered Asset during such fiscal quarter.
(e) Compliance Certificate. 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, setting forth in reasonable detail the
computations demonstrating the Borrower's compliance with the provisions of
Sections 8.12, 8.13, 8.14, 8.15, 8.16 and 8.17.
(f) Other Information. Such other information as the
Administrative Agent or any Lender may reasonably request from time to time.
7.2. Certificates; Other Information.
Furnish to the Administrative Agent and each Lender:
(a) Defaults Under Other Indebtedness. Prompt written notice
if: (i) any Indebtedness of the Borrower or any Subsidiary of the Borrower is
declared or shall become due and payable prior to its stated maturity, or called
and not paid when due, or (ii) a default that extends beyond any applicable
notice or grace period 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 of the Borrower 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, $7,500,000 or more;
(b) Action of Governmental Authorities. Prompt written
notice of: (i) any citation, summons, subpoena, order to show cause or other
document naming the Borrower or any Subsidiary of the Borrower 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 Intellectual Property, license, permit,
franchise or other authorization issued to the Borrower or any Subsidiary of the
Borrower by any Person or Governmental Authority, which lapse or termination
could reasonably be expected to have a Material Adverse
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Effect; 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 refusal could reasonably be expected to have a
Material Adverse Effect;
(c) SEC or other Governmental Reports and Filings. Promptly
upon becoming available, copies of all regular, periodic or special reports
which the Borrower or any Subsidiary of the Borrower may now or hereafter be
required to file with or deliver to any securities exchange or the Securities
and Exchange Commission, or any other Governmental Authority succeeding to the
functions thereof, pursuant to the Securities Exchange Act of 1934, as amended.
(d) ERISA Information. Promptly, and in any event within ten
Business 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
setting forth details with respect to 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;
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(iv) the complete or partial withdrawal from a
Multiemployer Plan by the Borrower or any ERISA Affiliate that results
in liability under Section 4201 or 4204 of ERISA (including the
obligation to satisfy secondary liability as a result of a purchaser
default) or the receipt of the Borrower or any ERISA Affiliate of notice
from a Multiemployer Plan that it is in reorganization or insolvency
pursuant to Section 4241 or 4245 of ERISA or that it intends to
terminate or has terminated under Section 4041A of ERISA;
(v) the institution of a proceeding by a fiduciary
of any Multiemployer Plan against the Borrower or any ERISA Affiliate to
enforce Section 515 of ERISA, which proceeding is not dismissed within
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
material 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) ERISA Reports. Promptly after the request of the
Administrative 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) Notice of Proposed Sales or Transfers. Quarterly, on
each date that a Compliance Certificate is to be delivered pursuant to Section
7.1(e), a list of all sales or transfers of any Unencumbered Assets (including
any agreements for the sale or transfer of any Unencumbered Asset entered into
during such fiscal quarter but not yet consummated); provided that, if during
any such fiscal quarter of the Borrower any sale or transfer of an Unencumbered
Asset, which combined with all other such sales or transfers of Unencumbered
Assets during such fiscal quarter, would exceed $100,000,000 in the aggregate,
then the Borrower shall promptly provide such list and a certification of the
Chief Financial Officer as to the Borrower's compliance with Sections 8.12 and
8.16;
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(g) Casualties or Condemnations. Prompt written notice of
any casualty or condemnation of any Real Property, if such casualty or
condemnation could reasonably be expected to have a Material Adverse Effect;
(h) Environmental Law Notices. Prompt written notice of any
order, notice, claim or proceeding received by, or brought against, the Borrower
or any Subsidiary of the Borrower, or with respect to any of the Real Property,
under any Environmental Law, which could reasonably be expected to have a
Material Adverse Effect;
(i) Management Letters and Reports. Promptly after the same
are received by the Borrower, copies of all management letters and similar
reports provided to the Borrower by the Accountants;
(j) New Subsidiaries. Notice of any Subsidiary that, as of
the end of any fiscal quarter of the Borrower, satisfies the criteria in Section
7.11 with respect to Required Additional Guarantors, such notice to be delivered
to the Administrative Agent concurrently with the delivery of the Compliance
Certificate with respect to such quarter;
(k) Changes in Name or Fiscal Year. Prompt written notice of
(i) any change in the Borrower's name, with copies of all filings with respect
to such name change attached thereto, and (ii) any change in its fiscal year
from that in effect on the Effective Date.
(l) Defaults or Events of Default. Prompt written notice if
there shall occur and be continuing a Default or an Event of Default; and
(m) Other Information. Such other information as the
Administrative Agent or any Lender shall reasonably request from time to time.
7.3. Legal Existence.
(a) Borrower's Legal Existence. Maintain its status as a
Maryland corporation in good standing in the State of Maryland and in each other
jurisdiction in which the failure so to do could reasonably be expected to have
a Material Adverse Effect.
(b) Legal Existence of Subsidiaries. Cause each Subsidiary
of the Borrower to maintain its status as a real estate investment trust,
business trust, corporation, limited liability company or partnership, as the
case may be, in good standing in its state of formation and in each other
jurisdiction in which the failure so to do either (i) would result in the
occurrence of a Default, or (ii) could reasonably be expected to have a Material
Adverse Effect.
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7.4. Taxes.
Pay and discharge when due, and cause each Subsidiary of the
Borrower 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, unless and to the extent only that such Taxes, assessments,
governmental charges, license fees and levies shall be contested in good faith
and by appropriate proceedings diligently conducted by the Borrower or such
Subsidiary and such contest has the effect of staying the collection of any Lien
from any Property of the Borrower or its Subsidiaries arising from such
non-payment, and provided that the Borrower shall give the Administrative Agent
prompt notice of such contest and that such reserve or other appropriate
provision as shall be required in accordance with GAAP (as determined by the
Accountants) shall have been made therefor.
7.5. Insurance.
Maintain, and cause each Subsidiary of the Borrower 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 Administrative Agent within 10
Business Days after request therefor a detailed list of such insurance then in
effect, stating the names of the carriers thereof, the policy numbers, the
insureds thereunder, the amounts of insurance, dates of expiration thereof, and
the Property and risks covered thereby, together with a certificate of the Chief
Financial Officer certifying that in the opinion of such officer such insurance
complies with the obligations of the Borrower under this Section, and is in full
force and effect.
7.6. Payment of Indebtedness and Performance of Obligations.
Pay and discharge when due, and cause each Subsidiary of the
Borrower to pay and discharge, all lawful Indebtedness, obligations and claims
for labor, materials and supplies or otherwise which, if unpaid, (i) would
result in a Default, or (ii) could reasonably be expected to have a Material
Adverse Effect, unless (with respect to clause (ii)) such Indebtedness shall be
contested in good faith and by appropriate proceedings diligently conducted by
the Borrower or such Subsidiary and such contest has the effect of staying the
collection of any Lien from any Property of the Borrower or its Subsidiaries
arising from such non-payment, and provided that the Borrower shall give the
Administrative Agent prompt notice of such contest and that such reserve or
other appropriate provision as shall be required in accordance with GAAP (as
determined by the Accountants) shall have been made therefor.
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7.7. Maintenance of Property; Environmental Investigations
(a) 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 of the Borrower so to do, all Property
necessary to the operation of the Borrower's or such Subsidiary's business.
(b) In the event that the Administrative 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 reasonably be expected to have a Material
Adverse Effect, promptly conduct and complete (at the Borrower's expense) all
investigations, studies, samplings and testings relative to such Hazardous
Substances as the Administrative Agent may reasonably request.
7.8. Observance of Legal Requirements.
(a) Observe and comply in all respects, and cause each
Subsidiary of the Borrower 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, except (i) where noncompliance with any
of the foregoing (individually or in the aggregate) could not reasonably be
expected to have a Material Adverse Effect, or (ii) such thereof as shall be
contested in good faith and by appropriate proceedings diligently conducted by
it and such contest has the effect of staying the collection of any Lien from
any Property of the Borrower or its Subsidiaries arising from such
noncompliance, and provided that the Borrower shall give the Administrative
Agent prompt notice of such contest and that such reserve or other appropriate
provision as shall be required in accordance with GAAP (as determined by the
Accountants) shall have been made therefor.
(b) Use and operate all of its facilities and property in
compliance with all Environmental Laws and cause each of its Subsidiaries so to
do, and keep all necessary permits, approvals, certificates, licenses and other
authorizations relating to environmental matters in effect and remain in
compliance therewith and cause each of its Subsidiaries so to do, and handle all
Hazardous Materials in compliance with all applicable Environmental Laws and
cause each of its Subsidiaries so to do, except where noncompliance with any of
the foregoing (individually or in the aggregate) could not reasonably be
expected to have a Material Adverse Effect.
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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 Administrative 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 of the Borrower to maintain,
in full force and effect, all material licenses, franchises, Intellectual
Property, permits, authorizations and other rights as are necessary for the
conduct of its business.
7.11. Required Additional Guarantors.
At any time after the date hereof, and with respect to any
Subsidiary of the Borrower, whether presently existing or hereafter formed or
acquired (other than Excel Realty Partners, L.P. and E. H. Properties, L.P.)
which is not a Subsidiary Guarantor at such time, cause such Subsidiary to
execute and deliver a Guaranty to the Administrative Agent, for the benefit of
the Lenders, promptly after the Administrative Agent's request therefor, duly
executed by such Subsidiary (together with the certificates and attachments
described in Section 5.1(b) and (c) with respect to such Subsidiary and an
opinion of counsel in the form required pursuant to Section 5.7(iii)) if at such
time such Subsidiary owns Property having a book value of $75,000,000 or more.
Notwithstanding the foregoing, the foregoing book value conditions of this
Section shall not be applicable from and after the occurrence of, and during the
continuance of, an Event of Default (it being understood that at such time, the
Administrative Agent can require any Subsidiary of the Borrower which has not
executed a Guaranty to immediately comply with requirements of this Section).
7.12. REIT Status; Operation of Business
(a) Maintain its status under Sections 856 et seq. of the
Code as a REIT.
(b) Carry on all business operations of the Borrower as a
self-advised, self-managed REIT.
(c) Manage, or cause one or more of its Subsidiaries at all
times to manage, at least 90% of all Properties of the Borrower and its
Subsidiaries.
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7.13. Termination of Existing Credit Agreements.
On the Effective Date, the Borrower shall qualify for, and shall
request, a Loan for the purpose of paying all loans outstanding under the
Existing Credit Agreements, together with all interest, fees, breakage costs and
other amounts outstanding thereunder, and shall terminate any commitment, or
right to borrow, under the Existing Credit Agreements.
8. NEGATIVE COVENANTS
The Borrower agrees that, so long as any Loan remains outstanding and
unpaid, any other amount is owing under any Loan Document to any Lender or the
Administrative Agent, or any Lender shall have any obligation to make or
maintain any Loan, 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
of the Borrower so to do, except (i) Liens for Taxes, assessments or similar
charges incurred in the ordinary course of business which are not delinquent or
the existence of which do not otherwise violate the representations in Section
7.4, (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, use restrictions, exclusive use
limitations in any lease of Real Property, reciprocal easement agreements, minor
defects, irregularities, and other similar restrictions and encumbrances
affecting Real Property, which do not materially adversely affect the value of
such Real Property or the financial condition of the Borrower or such Subsidiary
of the Borrower or materially impair its use for the operation of the business
of the Borrower or such Subsidiary, (v) statutory Liens arising by operation of
law such as mechanics', materialmen's, carriers', warehousemen's liens incurred
in the ordinary course of business which are not delinquent or the existence of
which do not otherwise violate the representations in Section 7.6, (vi) Liens
arising out of judgments or decrees which are being contested in accordance with
Section 7.8 or the existence of which do not otherwise violate the
representations in Section 7.8 or result in a default pursuant to Section
9.1(j), (vii) mortgages on Real Property, provided that the existence of such
mortgages, and the indebtedness secured thereby, does not cause the Borrower to
be in violation of Section 8.12 or 8.16, (viii) Liens in favor of the Borrower
or any Subsidiary Guarantor, provided that the Indebtedness secured by any such
Lien is held by the Borrower or such Subsidiary Guarantor, (ix) the interests of
lessees and
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lessors under leases of real or personal property made in the ordinary course of
business which could not reasonably be expected (individually or in the
aggregate) to have a Material Adverse Effect and (x) Liens not otherwise
permitted by clauses (i) through (ix) of this Section which do not in the
aggregate exceed $5,000,000.
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 (in one transaction or a series of transactions), or permit any
Subsidiary Guarantor of the Borrower so to do, or liquidate or dissolve, except
(i) the merger or consolidation of any Subsidiary Guarantor of the Borrower into
or with the Borrower, (ii) the merger or consolidation of any two or more
Subsidiary Guarantors, or (iii) the merger or consolidation of the Borrower or
Subsidiary Guarantor with any other Person, provided that (A) the Borrower or
such Subsidiary Guarantor is the surviving entity in such merger or
consolidation, (B) the total book value of the assets of the entity which is
merged into or consolidated with the Borrower or such Subsidiary Guarantor is
less than 20% of the total book value of the assets of the Borrower immediately
following such merger or consolidation, (C) immediately prior to such merger or
consolidation the Borrower shall have provided to the Administrative Agent and
each of the Lenders a Compliance Certificate prepared on a pro-forma basis (and
adjusted in the best good faith estimate of the Borrower, based on the advice of
the Accountants, to give effect to such merger or consolidation) demonstrating
that after giving effect to such merger or consolidation, no Default shall exist
with respect to any of the covenants set forth in Sections 8.12, 8.13, 8.14,
8.15, 8.16 and 8.17 and (D) after giving effect to such merger or consolidation,
no Event of Default shall exist.
(b) Sell, transfer, master lease or dispose of any of its
Property, either directly or indirectly, except that if at the time thereof and
immediately after giving effect thereto, no Default shall have occurred, (i) any
Subsidiary of the Borrower may sell, transfer, master lease or otherwise dispose
of its assets to the Borrower or to any other Subsidiary, and (ii) the Borrower
or any Subsidiary of the Borrower may sell Property in an arm's length
transaction (or, if the transaction involves an Affiliate of the Borrower or a
Subsidiary of the Borrower, if the transaction complies with Section 8.8) for
the fair market value thereof, as reasonably determined by the Borrower,
provided that such sale could not reasonably be expected to have a Material
Adverse Effect and provided further that for any fiscal year of the Borrower,
any sale, transfer, master lease or disposition of Property in reliance on this
clause (ii) which when combined with all other such sales, transfers, master
leases or dispositions made in such fiscal year shall not exceed 25% of the
total book value of all Property of the Borrower and its Subsidiaries determined
as of the first day of such fiscal year.
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8.3. 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 of the
Borrower so to do, (all of which are sometimes referred to herein as
"Investments") except the following (to the extent that maintaining any thereof
would not at any time violate the requirements of Section 856(c) of the Code):
(a) demand deposits, certificates of deposit, bankers
acceptances and domestic and eurodollar time deposits with any Lender, or any
other commercial bank, trust company or national banking association
incorporated under the laws of the United States or any State thereof and having
undivided capital, surplus and undivided profits exceeding $500,000,000 and a
long term debt rating of A or A2, as determined, respectively, by S&P and
Moody's;
(b) short-term direct obligations of the United States of
America or agencies thereof whose obligations are guaranteed by the United
States of America;
(c) securities commonly known as "commercial paper" issued
by a corporation organized and existing under the laws of the United States or
any State thereof which at the time of purchase are rated by S&P or Moody's at
not less than "A1" or "P1," respectively;
(d) mortgage-backed securities guaranteed by the
Governmental 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 S&P or Moody's
at not less than "Aa" or "AA," respectively;
(e) repurchase agreements having a term not greater than 90
days and fully secured by securities described in the foregoing paragraph (b) or
(d) with banks described in the foregoing paragraph (a) or with financial
institutions or other corporations having total assets in excess of $50,000,000;
(f) shares of "money market funds" registered with the SEC
under the Investment Company Act of 1940 which maintain a level per-share value,
invest principally in the investments described in one or more of the foregoing
paragraphs (a) through (e) and have total assets of in excess of $50,000,000;
(g) Real Property and loans secured by mortgages on Real
Property;
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(h) equity investments in any Person (other than
Subsidiaries) and notes receivable investments in any Person (other than
Subsidiaries), the aggregate principal amount of which (combined with any other
equity investments and notes receivable investments in any Person permitted
pursuant to this paragraph (h)) do not exceed 25% of the Total Capital of the
Borrower;
(i) Investments (debt or equity) in Subsidiaries of the
Borrower;
(j) investments in respect of (1) equipment, inventory and
other tangible personal property acquired in the ordinary course of business,
(2) current trade and customer accounts receivable for services rendered in the
ordinary course of business, (3) advances to employees for travel expenses other
company-related expenses, and (4) prepaid expenses made in the ordinary course
of business;
(k) Hedging Agreements made in connection with any
Indebtedness;
(l) repurchases of any common or preferred stock or other
equity interests (or securities convertible into such interests) in the Borrower
or any Subsidiary that have been previously issued by the Borrower or such
Subsidiary, which do not exceed, in any calendar year, (1) 10% of the
outstanding shares of common or preferred stock or other equity interests in
Borrower or such Subsidiary, as applicable, as of the date hereof, plus (2) 10%
of any additional shares of common or preferred stock or other equity interests
in Borrower or such Subsidiary, as applicable, issued after the date hereof;
(m) redemptions of preferred stock of the Borrower in
accordance with the terms thereof;
(n) redemptions for cash or common Stock of the Borrower of
units of limited partner interests or limited liability company interests in a
DownREIT Partnership;
(o) loans to employees of the Borrower, provided that all
such loans in the aggregate do not at any time exceed $15,000,000 in the
aggregate; and
(p) any other Investments not included in paragraphs (a)
through (o) deemed appropriate by the Borrower, provided that in no event shall
Investments made in reliance upon the exception set forth in this paragraph (p)
exceed $50,000,000 at any one time;
8.4. Business Changes.
Change in any material respect the nature of the business of the
Borrower or its Subsidiaries as conducted on the Effective Date.
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8.5. Amendments to Organizational Documents.
Amend or otherwise modify its corporate charter or by-laws in
any way (other than in connection with the issuance or classification of
preferred stock of the Borrower) which would adversely affect the interests of
the Administrative Agent and the Lenders under any of the Loan Documents, or
permit any Subsidiary of the Borrower to amend its organizational documents in a
manner which could have the same result.
8.6. Bankruptcy Proceedings.
Institute against the Administrative Agent, the Co-Documentation
Agents or any Lender, or join any other Person in instituting against the
Administrative Agent, the Co-Documentation Agents or any Lender, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding or other
proceeding under any federal or state bankruptcy or similar law, for one year
and a day after the payment or prepayment in full of the Indebtedness due
hereunder.
8.7. 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 of the Borrower so to do, except for sale
and leasing transactions described herein for which the combined selling price
of all Property subject to all such transactions does not exceed $50,000,000 in
the aggregate.
8.8. Transactions with Affiliates.
Become a party to any transaction in an amount that exceeds
$60,000 with an Affiliate unless the terms and conditions relating thereto (i)
have been approved by a majority of the disinterested directors of the Borrower,
(ii) have been approved by a majority of votes cast by the stockholders of the
Borrower, or (iii) are fair and reasonable to the Borrower, or permit any
Subsidiary of the Borrower so to do.
8.9. Issuance of Additional Capital Stock by Subsidiary Guarantors.
Permit any Subsidiary Guarantor to issue any additional Stock or
other equity interest of such Subsidiary Guarantor, other than the issuance of
partnership or limited liability company units in a DownREIT Partnership which
is a Subsidiary Guarantor, provided that such units are issued in consideration
of the contribution to the DownREIT Partnership of assets qualifying as "real
estate assets" under Section 856(c) of the Code.
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8.10. Hedging Agreements
Enter into, or permit any of its Subsidiaries so to do, any
Hedging Agreement, other than Hedging Agreements entered into in the ordinary
course of business to hedge or mitigate interest rate risks to which the
Borrower or any Subsidiary of the Borrower is exposed in the conduct of its
business or the management of its liabilities.
8.11. Restricted Payments.
(a) Permit the Borrower to make Restricted Payments, except
that:
(i) except as set forth in clause (ii) below, the
Borrower may declare and pay dividends payable with respect to its
equity securities in any fiscal quarter of the Borrower if after giving
effect to such dividend, such dividend, when added to the amount of all
other such dividends paid in the same fiscal quarter and the preceding
three (3) fiscal quarters, would not exceed the greater of (A) ninety
percent (90%) of its Funds from Operations for the four consecutive
fiscal quarters ending prior to the quarter in which such dividend is
paid or (B) the minimum amount of such dividends required under the Code
to enable the Borrower to continue to maintain its status under the Code
as a REIT, as evidenced (in the case of clause (B)) by a certification
of Chief Financial Officer containing calculations in reasonable detail
satisfactory in form and substance to Administrative Agent;
(ii) if an Event of Default under Section 9.1(a) or
(b) has occurred and is continuing, the Borrower may declare and pay
dividends with respect to its equity securities which shall not exceed
the minimum such dividends required under the Code to enable the
Borrower to continue to maintain its status under the Code as a REIT, as
evidenced by a certification of Chief Financial Officer containing
calculations in reasonable detail satisfactory in form and substance to
Administrative Agent;
(iii) the Borrower may effect Stock repurchases to the
extent permitted by Section 8.3(l);
(iv) the Borrower may effect "cashless exercises" of
options granted under the Borrower's stock option plans;
(v) the Borrower may distribute rights or equity
securities under any rights plan adopted by the Borrower; and
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(vi) the Borrower may declare and pay dividends (or
effect Stock splits or reverse Stock splits) with respect to its equity
securities payable solely in additional shares of its equity securities.
8.12. Unencumbered Assets Coverage Ratio.
Permit the Unencumbered Assets Coverage Ratio to be less than
2.0:1.0 at any time.
8.13. Fixed Charge Coverage Ratio.
Permit the Fixed Charge Coverage Ratio to be less than 1.75:1.0
at any time.
8.14. 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 the sum of (i)
$1,200,000,000, plus (ii) 80% of the aggregate net proceeds received by the
Borrower from and after the Effective Date in connection with the issuance of
any capital stock of the Borrower.
8.15. Maximum Total Indebtedness.
Permit at any time either (i) all Consolidated Total
Indebtedness at such time to be more than 55% of Total Capital at such time, or
(ii) the Consolidated Total Indebtedness secured by mortgages on Real Property
owned by the Borrower and its Subsidiaries at such time to exceed 40% of Total
Capital at such time.
8.16. Liabilities to Assets Ratio.
Permit, at any time, the portion of the Consolidated Total
Indebtedness consisting of Consolidated unsecured Indebtedness of the Borrower
and its Subsidiaries at such time to be more than 50% of Unencumbered Asset
Value at such time.
8.17. Maximum Book Value of Ancillary Assets.
Permit the book value of the Ancillary Assets at any time to be
more than 20% of the book value of all assets of the Borrower and its
Subsidiaries on a Consolidated basis at such time. For purposes of this Section
8.17 the book value of any Ancillary Asset not owned 100%, directly or
indirectly, by the Borrower or any of its Subsidiaries shall be adjusted by
multiplying the same by the Borrower's Interest in such Ancillary Asset during
the fiscal quarter of the Borrower ending as of any date of determination of
such book value.
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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, expenses or other charges payable under any Loan
Document within five Business Days of the date when due and payable; or
(c) The use of the proceeds of any Loan in a manner
inconsistent with or in violation of Section 2.15; or
(d) The failure of the Borrower to observe or perform any
covenant or agreement contained in Section 7.3, 7.12(a), 7.12(b), or 8 (other
than Section 8.1, as to which the provisions of paragraph
(e) below shall apply); 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
notice thereof from the Administrative Agent to the Borrower; 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 of the Borrower, whether as
principal, guarantor, surety or other obligor, for the payment of any
Indebtedness shall (i) become or shall be declared to be due and payable prior
to the expressed maturity thereof, or (ii) shall not be paid when due or within
any grace period for the payment thereof, or (iii) shall be subject, by the
holder of the obligation evidencing such Indebtedness, to acceleration (after
the expiration of any applicable notice and cure periods) prior to the expressed
maturity thereof, and the sum of all such Indebtedness which is the subject of
paragraphs (i) - (iii) inclusive exceeds (A) at any time, in the case of
Indebtedness other than Non-Recourse Indebtedness, $7,500,000, and (B) in any
calendar year, in the case of Non-Recourse Indebtedness, $50,000,000 in the
aggregate during such year; or
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(h) The Borrower or any Subsidiary Guarantor of the Borrower
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, or (xii) take any formal action for the purpose
of effecting any of the foregoing; or
(i) 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 Guarantor 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 Guarantor 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 Guarantor or of any substantial part
of the Property thereof, or (iv) ordering the winding up or liquidation of the
affairs of the Borrower or any Subsidiary Guarantor, and any such decree or
order continues unstayed and in effect for a period of 60 days; or
(j) Judgments or decrees against the Borrower or any
Subsidiary of the Borrower aggregating in excess of $5,000,000 shall not be
paid, stayed on appeal, discharged, bonded or dismissed for a period of 45 days;
or
(k) 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
(l) 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
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combination thereof which would constitute, in the reasonable opinion of the
Required Lenders, a Material Adverse Effect; or
(m) There shall occur a Change of Control; or
(n) If any Loan Document (i) is determined by any court or
Governmental Authority to be illegal, invalid or unenforceable in accordance
with its terms, or (ii) shall be canceled, terminated, revoked or rescinded
other than in accordance with its terms or with the written consent or approval
of the Lenders; or
(o) (i) Any Subsidiary Guarantor shall fail to comply in any
material respect with any covenant made by it in the Guaranty or if at any time
any representation or warranty made by any Subsidiary Guarantor in the Guaranty
or in any other document, statement or writing made to the Agent, the
Co-Documentation Agents, the Lead Arranger or the Lenders shall prove to have
been incorrect or misleading in any material respect when made, or (ii) if a
default by any Subsidiary Guarantor shall occur under the Guaranty after the
expiration of any applicable notice and grace period; or (iii) if any Subsidiary
Guarantor shall revoke or attempt to revoke, contest, commence any action or
raise any defense (other than the defense of payment) against its obligations
under the Guaranty; or
(p) There shall occur an Event of Default under and as
defined in the Other Credit Agreement.
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 (h) or (i) above, the 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 Administrative 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 Administrative Agent may, and upon the direction of
the Required Lenders shall, by notice to the Borrower, declare the Commitments
to be terminated forthwith, whereupon the Commitments shall immediately
terminate; and (ii) with the consent of the Required Lenders, the Administrative
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 Administrative 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
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notices of any kind are hereby expressly waived. The Borrower hereby further
expressly waives and covenants not to assert any appraisement, valuation, stay,
extension, redemption or similar laws, now or at any time hereafter in force
which might delay, prevent or otherwise impede the performance or enforcement of
any Loan Document.
In the event that the 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 Administrative Agent and the Lenders
from or on behalf of the Borrower shall be applied by the Administrative 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
Administrative Agent may have advanced on behalf of any Lender for which the
Administrative Agent has not then been reimbursed by such Lender or the
Borrower; (ii) second, to the payment of any fees or expenses due the
Administrative Agent from the Borrower; (iii) third, to reimburse the
Administrative 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
Administrative Agent, the Co-Documentation Agents, the Lead Arranger and the
Lenders under any Loan Document or other document or agreement entered into in
connection with the transactions contemplated thereby.
10. THE AGENT
10.1. Appointment.
Each Lender hereby irrevocably designates and appoints BNY as
the Administrative Agent of such Lender under the Loan Documents and each such
Lender hereby irrevocably authorizes BNY, as the Administrative 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 Administrative 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 Administrative 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 Administrative Agent.
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10.2. Delegation of Duties.
The Administrative 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 Administrative Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates shall be (i)
liable for any action lawfully taken or omitted to be taken by it or such Person
under or in connection with the Loan Documents (except for its own gross
negligence or willful misconduct), or (ii) responsible in any manner to any of
the Lenders for any recitals, statements, representations or warranties made by
the Borrower or any officer thereof contained in the Loan Documents or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Administrative 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 Administrative
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 Administrative Agent shall not be under any
liability or responsibility whatsoever, as Administrative 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 Administrative Agent.
The Administrative 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 reasonably
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 Administrative Agent. The
Administrative 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 Administrative Agent) and by the Person designated in such written notice of
transfer, in form and substance satisfactory to the Administrative Agent, shall
have been filed with the Administrative Agent. The Administrative Agent shall
not be under any duty to examine or pass upon the validity,
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effectiveness or genuineness of the Loan Documents or any instrument, document
or communication furnished pursuant thereto or in connection therewith, and the
Administrative 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 Administrative 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 Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under the Loan Documents in accordance
with a request or direction of the Required Lenders, and such request or
direction and any action taken or failure to act pursuant thereto shall be
binding upon all the Lenders and all future holders of the Notes.
10.5. Notice of Default.
The Administrative Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default or Event of Default unless the
Administrative Agent has received written notice thereof from a Lender or the
Borrower. In the event that the Administrative Agent receives such a notice, the
Administrative Agent shall promptly give notice thereof to the Lenders. The
Administrative 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 Administrative Agent shall have
received such directions, the Administrative 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 Administrative Agent and Other Lenders.
Each Lender expressly acknowledges that neither the
Administrative Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates has made any representations or warranties to it
and that no act by the Administrative Agent hereinafter, including any review of
the affairs of the Borrower, shall be deemed to constitute any representation or
warranty by the Administrative Agent to any Lender. Each Lender represents to
the Administrative Agent that it has, independently and without reliance upon
the Administrative 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 Administrative 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
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Borrower. Except for notices, reports and other documents expressly required to
be furnished to the Lenders by the Administrative Agent hereunder, the
Administrative 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 Administrative 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 Administrative
Agent in its capacity as such (to the extent not promptly reimbursed by the
Borrower and without limiting the obligation of the Borrower to do so), pro rata
according to its Commitment, from and against any and all liabilities,
obligations, claims, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever including, without
limitation, any amounts paid to the Lenders (through the Administrative 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
Administrative 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 Administrative 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 Administrative
Agent. The agreements in this Section shall survive the payment of all amounts
payable under the Loan Documents.
10.8. Administrative Agent in Its Individual Capacity.
BNY and its 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 Administrative 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
Administrative Agent, and the terms "Lender" and "Lenders" shall in each case
include BNY.
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10.9. Successor Administrative Agent.
If at any time the Administrative Agent deems it advisable, in
its sole discretion, it may submit to each of the Lenders a written notice of
its resignation as Administrative Agent under this Agreement, such resignation
to be effective upon the earlier of (i) the written acceptance of the duties of
the Administrative Agent under the Loan Documents by a successor Administrative
Agent and (ii) on the 60th day after the date of such notice. Upon any such
notice of resignation, the Required Lenders shall have the right to appoint from
among the Lenders a successor Administrative Agent. If no successor
Administrative Agent shall have been so appointed by the Required Lenders and
accepted such appointment in writing within 45 days after the retiring
Administrative Agent's giving of notice of resignation, then the retiring
Administrative Agent shall, in consultation with the Borrower, appoint a
successor Administrative Agent on behalf of the Lenders prior to the end of the
60th day from such notice from among any of the Lenders who shall have at such
time a Commitment of at least $15,000,000 (an "Approved Successor"). If no
Lender has a Commitment of at least $15,000,000 (or no Lender whose Commitment
is at least $15,000,000 shall agree to accept such appointment), then the
retiring Administrative Agent shall, in consultation with the Borrower, appoint
any other Lender or any other 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 as a successor Administrative Agent. Any
appointment of a successor Administrative Agent shall be subject to the approval
of the Borrower, which approval shall not be unreasonably withheld or delayed,
and shall be given in any event prior to the end of the 60th day from the date
of the retiring Administrative Agent's notice of resignation, provided that
during any period in which either (i) a Competitive Bid Advance is outstanding,
or (ii) there exists and is continuing an Event of Default, no approval from the
Borrower to the appointment of an Approved Successor shall be required. Upon the
acceptance of an appointment as Administrative Agent hereunder by a successor
Administrative Agent and any required approval of such successor Administrative
Agent by the Borrower in accordance with the terms of this Section, such
successor Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent's rights, powers, privileges and
duties as Administrative Agent under the Loan Documents shall be terminated. The
Borrower and the Lenders shall execute such documents as shall be necessary to
effect such appointment. After any retiring Administrative Agent's resignation
hereunder as Administrative 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 Administrative Agent under the Loan Documents.
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10.10. Exculpation of Co-Documentation Agents.
Neither of the Co-Documentation Agents has any rights,
obligations, liabilities, responsibilities or duties under the Agreement other
than those applicable to all Lenders as such.
11. OTHER PROVISIONS.
11.1. Amendments and Waivers.
With the written consent of the Required Lenders, the
Administrative 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 Administrative 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
Administrative 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 2.18);
(iii) decrease the rate, or extend the time of payment, of interest of, or
change or forgive the principal amount of, or change the requirement that
payments and prepayments of principal of, and payments of interest on, the Notes
be made pro rata to the Lenders on the basis of the outstanding principal amount
of the Loans, (iv) amend the definition of "Required Lender", (v) amend the
definitions of "Applicable Facility Fee Percentage" or "Applicable Margin", (vi)
release any Subsidiary Guarantor from its obligations under a Guaranty, or (vii)
change the provisions of Section 2.9, 2.10, 2.11, 2.12, 2.13, 2.14, 2.15, 2.16,
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 Administrative Agent under the Loan Documents without the
written consent of the Administrative Agent; and provided further that no such
amendment, supplement, modification, waiver or consent shall, unless in writing
and signed by the Designating Lender on behalf of each Designated Lender
affected thereby, (a) subject such Designated Lender to any additional
obligations, (b) reduce the principal of, interest on, or other amounts due with
respect to, the Competitive Bid Borrowings made payable to such Designated
Lender, (c) postpone any date fixed for any payment of principal of, or interest
on, or other amounts due with respect to, Competitive Bid Borrowings made
payable to such Designated Lender, or (d) amend the definition of Required
Lenders hereunder in a manner which adversely affects the rights of such
Designated Lender. The Administrative Agent shall cause a copy of each written
request for such an
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amendment, supplement or modification delivered by the Borrower to it to be
delivered to each Lender. 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 Administrative Agent
and all future holders of the Notes. In the case of any waiver, the parties to
the applicable agreement, the Lenders and the Administrative Agent shall be
restored to their former position and rights under the Loan Documents, and any
Default or Event of Default waived shall not extend to any subsequent or other
Default or Event of Default, or impair any right consequent thereon.
11.2. Notices.
All notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing and, unless otherwise
expressly provided herein, shall be deemed to have been duly given or made when
delivered by hand, or if sent by certified mail (return receipt requested), when
the return receipt is signed on behalf of the party to whom such notice is
given, or in the case of telecopier notice, when sent, or if sent by overnight
nationwide commercial courier, the Business Day following the date such notice
is deposited with said courier, and in any case addressed as follows in the case
of the Borrower or the Administrative Agent, and at the Domestic Lending Office
in the case of each Lender, or to such other addresses as to which the
Administrative Agent may be hereafter notified by the respective parties hereto
or any future holders of the Notes:
The Borrower:
New Plan Excel Realty Trust, Inc.
1120 Avenue of the Americas
New York, New York 10036
Attention: Dean Bernstein,
Senior Vice President
Telephone: (212) 869-3000
Telecopy: (212) 869-3989
with a copy to:
New Plan Excel Realty Trust, Inc.
1120 Avenue of the Americas
New York, New York 10036
Attention: Steven F. Siegel, Esq.,
General Counsel
Telephone: (212) 869-3000
Telecopy: (212) 302-4776
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The Administrative Agent:
The Bank of New York
One Wall Street
Agency Function Administration
18th Floor
New York, New York 10286
Attention: Sandra Scaglione
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: Rick Laudisi
Vice President
Telephone: (212) 635-7621
Telecopy: (212) 809-9526,
except that any notice, request or demand by the Borrower to or upon the
Administrative Agent or the Lenders pursuant to Section 2.3, 2.4 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
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<PAGE> 89
termination of this Agreement in accordance with its terms, without any
extension thereof, the payment in full of all obligations of the Borrower under
the Loan Documents and the expiration of any obligations of the Borrower
hereunder which survive the termination of this Agreement, the Borrower shall
have no liability to the Lenders under such representations and warranties,
except that the foregoing shall not apply with respect to any claim, action or
proceeding made or brought under any such representations or warranties prior to
such termination or payment.
11.5. Payment of Expenses and Taxes.
The Borrower agrees, promptly upon presentation of a statement
or invoice therefor, and whether any Loan is made (i) to pay or reimburse each
Credit Party for all of its out-of-pocket costs and expenses reasonably incurred
in connection with the development, preparation, negotiation 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 each Credit Party for
all of its 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 (including, without limitation, any costs incurred after the
entry of judgment in an attempt to collect money due in the judgment) 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 Credit Party 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 Credit Party 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 from any
third party 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
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<PAGE> 90
indemnified person is a party to this Agreement or the Loan Documents, and to
reimburse each indemnified person for all legal and other expenses incurred in
connection with investigating or defending any indemnified liabilities, and, if
and to the extent that the foregoing indemnity may be unenforceable for any
reason, the Borrower agrees to make the maximum payment permitted or not
prohibited under applicable law; provided, however, that the Borrower shall have
no obligation hereunder to pay indemnified liabilities to any Credit Party
arising from (A) the gross negligence or willful misconduct of such Credit Party
or (B) disputes solely between the Credit Parties 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 shall not be payable by the Borrower
if (x) any such enforcement action brought by such Credit Party is dismissed,
with prejudice, on the pleadings or pursuant to a motion made by the Borrower
for summary judgment, and (y) if such Credit Party appeals such dismissal, such
dismissal is affirmed and the time for any further appeals has expired. The
obligations of the Borrower under this Section shall survive the termination of
this Agreement and the 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 Administrative 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 Section 2.13, 2.14 or 2.16 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 Administrative 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
Administrative Agent and all of the Lenders.
(b) Each Lender (other than a Designated Lender) shall have
the right at any time, upon written notice to the Administrative Agent of its
intent to do so, to sell,
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assign, transfer or negotiate all or any part of such Lender's rights and/or
obligations under the Loan Documents (subject to paragraph (c) below) 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
Administrative Agent (which consent, from each of them, shall not be
unreasonably withheld or delayed and shall not be required from the Borrower
upon the occurrence and during the continuance of an Event of Default), to sell,
assign, transfer or negotiate all or any part of such Lender's rights and
obligations under the Loan Documents to any other bank, insurance company,
pension fund, mutual fund or other financial institution, provided that there
shall be paid to the Administrative Agent by the assigning Lender a fee (the
"Assignment Fee") of $3,500. A Designated Lender shall not assign any of its
Loans to any Person at any time, other than an assignment of all or part of such
Loans to its Designating Lender. Simultaneously with each assignment by a Lender
of all or any part of its and Revolving Credit Loans made as Conventional
Advances, such Lender shall assign, pursuant to the terms of the Other Credit
Agreement, an equal percentage of its Commitment and Revolving Credit Loans made
as Conventional Advances under, and as defined in, the Other Credit Agreement.
For each assignment, the parties to such assignment shall execute and deliver to
the Administrative Agent for its acceptance and recording an Assignment and
Assumption Agreement. Upon such execution, delivery, acceptance and recording by
the Administrative Agent, from and after the effective date specified in such
Assignment and Assumption Agreement, the assignee thereunder shall be a party
hereto and, to the extent provided in such Assignment and Assumption Agreement,
the assignor Lender thereunder shall be released from its obligations under the
Loan Documents. The Borrower agrees upon written request of the Administrative
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 Assumption 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 Assumption 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 Administrative Agent and a new Exhibit B shall be distributed by the
Administrative Agent to the Borrower and each Lender.
(c) Each Lender shall maintain an equal Commitment
Percentage in (i) all Revolving Credit Loans made as Conventional Advances and
Term Loans hereunder, and (ii) all Revolving Credit Loans made as Conventional
Advances and LC Exposure under, and as defined in, the Other Credit Agreement.
Accordingly, each sale, assignment, transfer or negotiation by a Lender of all
or any part of its rights and/or obligations under the Loan Documents shall
include an equal prorata share of its rights
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<PAGE> 92
and/or obligations under Loan Documents under, and as defined in, the Other
Credit Agreement.
(d) 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
Administrative 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 2.16 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.
(e) If any (i) assignment made pursuant to paragraph (b)
above or (ii) any participation granted pursuant to paragraph (d) above shall be
made to any Person that is organized under the laws of any jurisdiction other
than the United States of America or any State thereof, such Person shall
furnish such certificates, documents or other evidence to the Borrower and the
Administrative 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.
(f) No Lender shall, as between and among the Borrower, the
Administrative 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
paragraph (b) above.
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<PAGE> 93
(g) 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. Designated Lender.
(a) Each Lender (each a "Designating Lender") may at any
time designate one or more Designated Lenders to fund Competitive Bid Advances
which the Designating Lender is required to fund subject to the terms of Section
2.4. No Lender shall be entitled to make more than one such designation. The
parties to each such designation shall execute and deliver to the Administrative
Agent, for its acceptance, a Designation Agreement. Upon its receipt of an
appropriately completed Designation Agreement executed by a Designating Lender
and a designee representing that it is a Designated Lender, the Administrative
Agent will accept such Designation Agreement and give prompt notice thereof to
the Borrower, whereupon, from and after the effective date specified in the
Designation Agreement, the Designated Lender shall become a party to this
Agreement with a right to make Competitive Bid Advances on behalf of its
Designating Lender pursuant to Section 2.4 after the Borrower has accepted an
offer to make the Competitive Bid Advance (or a portion thereof) from the
Designating Lender. Each Designating Lender shall serve as the agent of the
Designated Lender and shall on behalf of the Designated Lender give and receive
all communications and notices and take all actions hereunder, including without
limitation votes, approvals, waivers, consents and amendments under or relating
to this Agreement or the other Loan Documents. Any such notice, communication,
vote approval, waiver, consent or amendment shall be signed by the Designating
Lender as agent for its Designated Lender. The Borrower, the Administrative
Agent and the Lenders may rely thereon without any requirement that the
Designated Lender sign or acknowledge the same.
(b) A Designated Lender shall not make or participate in
Revolving Credit Loans made as Conventional Advances or Term Loans of any
Designating Lender, nor shall any Designated Lender have a Commitment or share
in or be obligated under the Commitment of any Lender, it being understood that
each Designated Lender shall be entitled to make only Competitive Bid Advances
offered by the Designating Lender of such Designated Lender pursuant to Section
2.4(c), to the extent the offer of such Competitive Bid Advances has been
accepted by the Borrower pursuant to Section 2.4(d).
11.9. 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
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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 Administrative 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.
11.10. Adjustments; Set-off.
(a) If any Lender (a "Benefited Lender") shall at any time
receive any payment of all or any part of its Loans or interest thereon, or
receive any collateral in respect thereof (whether voluntarily or involuntarily,
by set-off, pursuant to events or proceedings of the nature referred to in
Section 9.1(h) or (i), or otherwise) in a greater proportion than any such
payment to and collateral received by any other Lender in respect of such other
Lender's Loans or interest thereon, such Benefited Lender shall purchase for
cash from each of the other Lenders such portion of each such other Lender's
Loans and shall provide each of such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
Benefited Lender to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Lenders, provided, however, that if all or any
portion of such excess payment or benefits is thereafter recovered from such
Benefited Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest. The
Borrower agrees that each Lender so purchasing a portion of another Lender's
Loans may exercise all rights of payment (including, without limitation, rights
of set-off, to the extent not prohibited by law) with respect to such portion as
fully as if such Lender were the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders
provided by law, upon the occurrence of an Event of Default and the acceleration
of the obligations owing in connection with the Loan Documents, or at any time
upon the occurrence and during the continuance of an Event of Default under
Section 9.1(a) or (b), each Lender shall have the right, without prior notice to
the Borrower, any such notice being expressly waived by the Borrower to the
extent not prohibited by applicable law, to set-off and apply against any
indebtedness, whether matured or unmatured, of the Borrower to such Lender, any
amount owing from such Lender to the Borrower, at, or at any time after, the
happening of any of the above-mentioned events. To the extent not prohibited by
applicable law, the aforesaid right of set-off may be exercised by such Lender
against the Borrower or against any trustee in bankruptcy, custodian, debtor in
possession, assignee for the benefit of creditors, receiver, or execution,
judgment or attachment creditor of the Borrower, or against anyone else claiming
through or against the
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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 Administrative 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.
11.11. Lenders' Representations.
Each Lender represents to the Administrative Agent that, in
acquiring its Note, it is acquiring the same for its own account for the purpose
of investment and not with a view to selling the same in connection with any
distribution thereof, provided that the disposition of each Lender's own
Property shall at all times be and remain within its control.
11.12. Indemnity.
The Borrower agrees to indemnify and hold harmless each Credit
Party and its affiliates, directors, officers, employees, affiliates, agents,
controlling persons and attorneys (each an "Indemnified Person") from and
against any loss, cost, liability, damage or expense (including the reasonable
fees and disbursements of counsel of such Indemnified Person, including all
local counsel hired by any such counsel) incurred by such Indemnified Person in
investigating, preparing for, defending against, or providing evidence,
producing documents or taking any other action in respect of, any commenced or
threatened litigation, administrative proceeding or investigation under any
federal securities or tax laws or any other statute of any jurisdiction, or any
regulation, or at common law or otherwise, which is alleged to arise out of or
is based upon: (i) any untrue statement of any material fact by the Borrower in
any document or schedule executed or filed with any Governmental Authority by or
on behalf of the Borrower; (ii) any omission to state any material fact required
to be stated in such document or schedule, or necessary to make the statements
made therein, in light of the circumstances under which made, not misleading; or
(iii) any acts, practices or omissions of the Borrower or its agents relating to
the use of the proceeds of any or all borrowings made by the Borrower which are
alleged to be in violation of Section 2.15, or in violation of any federal
securities or tax laws or of any other statute, regulation or other law of any
jurisdiction applicable thereto, whether or not 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
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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 willful misconduct of such Indemnified Person or arising solely
from claims between one such Indemnified Person and another such Indemnified
Person.
11.13. Governing Law.
The Loan Documents and the rights and obligations of the parties
thereunder shall be governed by, and construed and interpreted in accordance
with, the internal laws of the State of New York, without regard to principles
of conflict of laws.
11.14. Headings Descriptive.
Section headings have been inserted in the Loan Documents for
convenience only and shall not be construed to be a part thereof.
11.15. 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.
11.16. 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 Administrative Agent and the Lenders with respect to the
subject matter thereof and supersede all prior agreements and understandings
among the Borrower, the Administrative Agent and the Lenders with respect to the
subject matter thereof.
11.17. Consent to Jurisdiction.
The Borrower and each of the Credit Parties hereby irrevocably
submit 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 and each of the Credit Parties hereby
irrevocably waive, to the fullest extent permitted or not prohibited by law, any
objection which any of them may now or hereafter have to the laying of the venue
of any such suit, action or proceeding brought in
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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.
11.18. Service of Process.
The Borrower hereby agrees that process may be served against it
in any suit, action or proceeding referred to in Section 11.17 by sending the
same by first class mail, return receipt requested or by overnight courier
service, to the address of the Borrower set forth in Section 11.2 or in the
applicable Loan Document executed by the Borrower. The Borrower hereby agrees
that any such service (i) shall be deemed in every respect effective service of
process upon it in any such suit, action, or proceeding, and (ii) shall to the
fullest extent enforceable by law, be taken and held to be valid personal
service upon and personal delivery to it.
11.19. 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 Administrative Agent
or any Lender to serve process in any manner permitted by law or limit the right
of the Administrative 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.
11.20. WAIVER OF TRIAL BY JURY.
THE ADMINISTRATIVE AGENT, THE CO-DOCUMENTATION AGENTS, THE
LENDERS AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE
ANY RIGHT ANY OF THEM 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 ADMINISTRATIVE AGENT, THE CO-DOCUMENTATION
AGENTS, THE LENDERS, OR COUNSEL TO THE ADMINISTRATIVE AGENT THE CO-DOCUMENTATION
AGENTS OR THE LENDERS, HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE
ADMINISTRATIVE AGENT, THE CO-DOCUMENTATION AGENTS 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 ADMINISTRATIVE AGENT, THE
CO-DOCUMENTATION AGENTS, AND THE LENDERS HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, INTER ALIA, THE PROVISIONS OF THIS SECTION.
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11.21. 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, each Lender
whose obligations under the Notes have been fully paid shall promptly return to
the Borrower its Note marked "paid" or shall deliver other evidence that such
Lender has received full payment of such obligations.
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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 EXCEL REALTY
TRUST, INC.
By: /s/ DEAN BERNSTEIN
---------------------------------
Dean Bernstein
Senior Vice President
THE BANK OF NEW YORK,
as Administrative Agent and a Lender
By: /s/ FREDERICK LAUDISI
---------------------------------
Frederick Laudisi
Vice President
BANK ONE, NA
as Co-Documentation Agent
and a Lender
By: /s/ PATRICIA LEUNG
---------------------------------
Name: Patricia Leung
Title: Senior Vice President
BANKBOSTON, N.A.
as Co-Documentation Agent
and a Lender
By: /s/ DANIEL P. STEGEMOELLER
---------------------------------
Name: Daniel P. Stegemoeller
Title: Vice President
<PAGE> 100
ARGENTARIA, CAJA POSTAL Y
BANCO HIPOTECARIO S.A.
By: /s/ AUGUSTO GODOY
---------------------------------
Name: Augusto Godoy
Title: General Manager
BANK OF AMERICA, N. A.
By: /s/ THOMAS E. SCHUBERT
---------------------------------
Name:
Title:
CHANG HWA COMMERCIAL
BANK, LTD., NEW YORK BRANCH
By: /s/ WAN-TU YEH
---------------------------------
Name: Wan-Tu Yeh
Title: VP & General Manager
ERSTE BANK
By: /s/ PAUL JUDICKE
---------------------------------
Name: Paul Judicke
Title: Vice President
By: /s/ JOHN S. RUNNION
---------------------------------
John S. Runnion
First Vice President
ISRAEL DISCOUNT BANK OF
NEW YORK
By: /s/ MARC G. COOPER
---------------------------------
Name: Marc G. Cooper
Title: Vice President
By: /s/ CHET DAVIS
---------------------------------
Name: Chet Davis
Title: First Vice President
<PAGE> 101
PNC BANK, N. A.
By: /s/ THOMAS NASTAROWICZ
---------------------------------
Name: Thomas Nastarowicz
Title: Vice President
KEY BANK
By: /s/ KENNETH A. MCINTYRE, JR.
---------------------------------
Name: Kenneth A. McIntyre, Jr.
Title: Vice President
<PAGE> 1
EXHIBIT 10.14
FACILITY I
GUARANTY
GUARANTY (as the same may be amended, supplemented or
otherwise modified from time to time, this "GUARANTY"), dated as of November 17,
1999, by and among each of the Subsidiaries listed on Schedule I hereto
(collectively, the "SUBSIDIARY GUARANTORS") and THE BANK OF NEW YORK, as
administrative agent (in such capacity, the "ADMINISTRATIVE AGENT") on behalf of
the Lenders under and as defined in the Credit Agreement (hereinafter defined).
RECITALS
I. Reference is made to the Credit Agreement, dated as of the date
hereof, by and among New Plan Excel Realty Trust, Inc., a Maryland corporation,
the Lenders party thereto, the Administrative Agent, BANK ONE, NA, as a
Co-Documentation Agent, and BANKBOSTON, N.A., as a Co-Documentation Agent (as
the same may be amended, supplemented or otherwise modified from time to time,
the "CREDIT AGREEMENT").
II. The Administrative Agent, the Co-Documentation Agents and the
Lenders have made it a condition precedent to the effectiveness of the Credit
Agreement that each Subsidiary Guarantor execute and deliver this Guaranty.
III. Each Subsidiary Guarantor expects to derive substantial benefit
from the Credit Agreement and the transactions contemplated thereby and, in
furtherance thereof, has agreed to execute and deliver this Guaranty.
Therefore, in consideration of the Recitals, the terms and conditions
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each of the Subsidiary Guarantors,
the Borrower and the Administrative Agent hereby agree as follows:
1. DEFINED TERMS
(a) Capitalized terms used herein which are not otherwise
defined herein shall
have the respective meanings ascribed thereto in the Credit Agreement.
(b) When used in this Guaranty, the following capitalized
terms shall have the respective meanings ascribed thereto as follows:
"BORROWER OBLIGATIONS" means all present and future
obligations and liabilities, whether deemed principal, interest, additional
interest, fees, expenses or otherwise of the Borrower to the Administrative
Agent, the Co-Documentation Agents,
<PAGE> 2
and the Lenders, including, without limitation, all obligations under (i) the
Credit Agreement, (ii) the Notes and (iii) all other Loan Documents.
"GUARANTOR OBLIGATIONS" means, with respect to each
Subsidiary Guarantor, all of the obligations and liabilities of such Subsidiary
Guarantor hereunder, whether fixed, contingent, now existing or hereafter
arising, created, assumed, incurred or acquired.
2. GUARANTEE
(a) Subject to Section 2(b), each Subsidiary Guarantor hereby
absolutely, irrevocably and unconditionally guarantees the full and prompt
payment when due (whether at stated maturity, by acceleration or otherwise) of
the Borrower Obligations. The agreements of each Subsidiary Guarantor in this
Guaranty constitute a guarantee of payment, and no Credit Party shall have any
obligation to enforce any Loan Document or exercise any right or remedy with
respect to any collateral security thereunder by any action, including making or
perfecting any claim against any Person or any collateral security for any of
the Borrower Obligations prior to being entitled to the benefits of this
Guaranty. The Administrative Agent may, at its option, proceed against the
Subsidiary Guarantors, or any one or more of them, in the first instance, to
enforce the Guarantor Obligations without first proceeding against the Borrower
or any other Person, and without first resorting to any other rights or
remedies, as the Administrative Agent may deem advisable. In furtherance hereof,
if any Credit Party is prevented by law from collecting or otherwise hindered
from collecting or otherwise enforcing any Borrower Obligation in accordance
with its terms, such Credit Party shall be entitled to receive hereunder from
the Subsidiary Guarantors after demand therefor, the sums which would have been
otherwise due had such collection or enforcement not been prevented or hindered.
(b) Notwithstanding anything to the contrary contained herein,
the maximum aggregate amount of the obligations of each Subsidiary Guarantor
hereunder shall not, as of any date of determination, exceed the lesser of the
greatest amount that is valid and enforceable against such Subsidiary Guarantor
under principles of New York State contract law and the greatest amount that
would not render such Subsidiary Guarantor's liability hereunder subject to
avoidance as a fraudulent transfer or conveyance under Section 548 of Title 11
of the United States Code or any provisions of applicable state law
(collectively, the "FRAUDULENT TRANSFER LAWS"), in each case after giving effect
to all other liabilities of such Subsidiary Guarantor, contingent or otherwise,
that are relevant under the Fraudulent Transfer Laws (specifically excluding,
however, any liability (A) in respect of intercompany indebtedness to the
Borrower or any Affiliate or Subsidiary of the Borrower, to the extent that such
intercompany indebtedness would be discharged to the extent payment is made by
such Subsidiary Guarantor hereunder, and (B) under any guarantee of (1) senior
unsecured indebtedness
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<PAGE> 3
or (2) indebtedness subordinated in right of payment to any Borrower Obligation,
in either case which contains a limitation as to maximum liability similar to
that set forth in this Section 2(b) and pursuant to which the liability of such
Subsidiary Guarantor hereunder is included in the liabilities taken into account
in determining such maximum liability) and after giving effect as assets to the
value (as determined under the applicable provisions of the Fraudulent Transfer
Laws) of any rights to subrogation, contribution, reimbursement, indemnity or
similar rights of such Subsidiary Guarantor pursuant to applicable law or any
agreement providing for an equitable allocation among such Subsidiary Guarantor
and other Affiliates or Subsidiaries of the Borrower of obligations arising
under guarantees by such parties.
(c) Each Subsidiary Guarantor agrees that the Guarantor
Obligations may at any time and from time to time exceed the maximum aggregate
amount of the obligations of such Subsidiary Guarantor hereunder without
impairing this Guaranty or affecting the rights and remedies of any Credit Party
hereunder.
3. ABSOLUTE OBLIGATION
No Subsidiary Guarantor shall be released from liability
hereunder unless and until the Commitments of the Lenders have terminated and
either (i) the Borrower shall have paid in full the outstanding principal
balance of the Loans, together with all accrued and unpaid interest thereon, and
all other amounts then due and owing under the Loan Documents, or (ii) the
Guarantor Obligations of such Subsidiary Guarantor shall have been paid in full
in cash. Each Subsidiary Guarantor acknowledges and agrees that (a) no Credit
Party has made any representation or warranty to such Subsidiary Guarantor with
respect to the Borrower, any of its Subsidiaries, any Loan Document, or any
agreement, instrument or document executed or delivered in connection therewith,
or any other matter whatsoever, and (b) such Subsidiary Guarantor shall be
liable hereunder, and such liability shall not be affected or impaired,
irrespective of (A) the validity or enforceability of any Loan Document, or any
agreement, instrument or document executed or delivered in connection therewith,
or the collectability of any of the Borrower Obligations, (B) the preference or
priority ranking with respect to any of the Borrower Obligations, (C) the
existence, validity, enforceability or perfection of any security interest or
collateral security under any Loan Document, or the release, exchange,
substitution or loss or impairment of any such security interest or collateral
security, (D) any failure, delay, neglect or omission by any Credit Party to
realize upon or protect any direct or indirect collateral security,
indebtedness, liability or obligation, any Loan Document, or any agreement,
instrument or document executed or delivered in connection therewith, or any of
the Borrower Obligations, (E) the existence or exercise of any right of set-off
by any Credit Party, (F) the existence, validity or enforceability of any other
guarantee with respect to any of the Borrower Obligations, the liability of any
other Person in respect
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<PAGE> 4
of any of the Borrower Obligations, or the release of any such Person or any
other guarantor of any of the Borrower Obligations, (G) any act or omission of
any Credit Party in connection with the administration of any Loan Document or
any of the Borrower Obligations, (H) the bankruptcy, insolvency, reorganization
or receivership of, or any other proceeding for the relief of debtors commenced
by or against, any Person, (I) the disaffirmance or rejection, or the purported
disaffirmance or purported rejection, of any of the Borrower Obligations, any
Loan Document, or any agreement, instrument or document executed or delivered in
connection therewith, in any bankruptcy, insolvency, reorganization or
receivership, or any other proceeding for the relief of debtor, relating to any
Person, (J) any law, regulation or decree now or hereafter in effect which might
in any manner affect any of the terms or provisions of any Loan Document, or any
agreement, instrument or document executed or delivered in connection therewith
or any of the Borrower Obligations, or which might cause or permit to be invoked
any alteration in the time, amount, manner or payment or performance of any of
the Borrower's obligations and liabilities (including the Borrower Obligations),
(K) the merger or consolidation of the Borrower into or with any Person, (L) the
sale by the Borrower of all or any part of its assets, (M) the fact that at any
time and from time to time none of the Borrower Obligations may be outstanding
or owing to any Credit Party, (N) any amendment or modification of, or
supplement to, any Loan Document, or (O) any other reason or circumstance which
might otherwise constitute a defense available to or a discharge of the Borrower
in respect of its obligations or liabilities (including the Borrower
Obligations) or of such Subsidiary Guarantor in respect of any of the Guarantor
Obligations (other than by the performance in full thereof).
4. REPRESENTATIONS AND WARRANTIES
Each of the Subsidiary Guarantors represents and warrants as
to itself that all representations and warranties relating to it contained in
the Credit Agreement are true and correct.
5. NOTICES
Except as otherwise specifically provided herein, all notices,
requests, consents, demands, waivers and other communications hereunder shall be
in writing (including facsimile) and shall be given in the manner set forth in
Section 11.2 of the Credit Agreement (i) in the case of the Administrative
Agent, to the address set forth in Section 11.2 of the Credit Agreement, (ii) in
the case of a Subsidiary Guarantor, to the address set forth in Schedule I
hereto, or (iii) in the case of each party hereto, to such other addresses as to
which the Administrative Agent may be hereafter notified by the respective
parties hereto.
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<PAGE> 5
6. EXPENSES
Each Subsidiary Guarantor agrees that it shall, promptly after
demand, pay to the Administrative Agent any and all reasonable out-of-pocket
sums, costs and expenses, which any Credit Party may pay or incur defending,
protecting or enforcing this Guaranty (whether suit is instituted or not),
reasonable attorneys' fees and disbursements. All sums, costs and expenses which
are due and payable pursuant to this Section shall bear interest, payable on
demand, at the highest rate then payable on the Borrower Obligations.
7. REPAYMENT IN BANKRUPTCY, ETC.
If, at any time or times subsequent to the payment of all or
any part of the Borrower Obligations or the Guarantor Obligations, any Credit
Party shall be required to repay any amounts previously paid by or on behalf of
the Borrower or any Subsidiary Guarantor in reduction thereof by virtue of an
order of any court having jurisdiction in the premises, including as a result of
an adjudication that such amounts constituted preferential payments or
fraudulent conveyances, the Subsidiary Guarantors unconditionally agree to pay
to the Administrative Agent, within 10 days after demand, a sum in cash equal to
the amount of such repayment, together with interest on such amount from the
date of such repayment by such Credit Party to the date of payment to the
Administrative Agent at the applicable after-maturity rate set forth in the
Credit Agreement.
8. MISCELLANEOUS
(a) Except as otherwise expressly provided in this Guaranty,
each Subsidiary Guarantor hereby waives presentment, demand for payment, notice
of default, nonperformance and dishonor, protest and notice of protest of or in
respect of this Guaranty, the other Loan Documents and the Borrower Obligations,
notice of acceptance of this Guaranty and reliance hereupon by any Credit Party,
and the incurrence of any of the Borrower Obligations, notice of any sale of
collateral security or any default of any sort.
(b) No Subsidiary Guarantor is relying upon any Credit Party
to provide to such Subsidiary Guarantor any information concerning the Borrower
or any of its Subsidiaries, and each Subsidiary Guarantor has made arrangements
satisfactory to such Subsidiary Guarantor to obtain from the Borrower on a
continuing basis such information concerning the Borrower and its Subsidiaries
as such Subsidiary Guarantor may desire.
(c) Each Subsidiary Guarantor agrees that any statement of
account with respect to the Borrower Obligations from any Credit Party to the
Borrower which
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<PAGE> 6
binds the Borrower shall also be binding upon such Subsidiary Guarantor, and
that copies of said statements of account maintained in the regular course of or
such Credit Party's business may be used in evidence against such Subsidiary
Guarantor in order to establish its Guarantor Obligations.
(d) Each Subsidiary Guarantor acknowledges that it has
received a copy of the Loan Documents and has approved of the same. In addition,
each Subsidiary Guarantor acknowledges having read each Loan Document and having
had the advice of counsel in connection with all matters concerning its
execution and delivery of this Guaranty.
(e) This Guaranty shall be binding upon each Subsidiary
Guarantor and its successors and inure to the benefit of, and be enforceable by
the Administrative Agent, Lenders and their respective successors, transferees
and assigns. No Subsidiary Guarantor may assign any right, or delegate any duty,
it may have under this Guaranty.
(f) Subject to the limitations set forth in Section 2(b), the
Guarantor Obligations shall be joint and several.
(g) This Guaranty is the "Guaranty" referred to in the Credit
Agreement, and is subject to, and should be construed in accordance with, the
provisions thereof. Each of the parties hereto acknowledges and agrees that the
following provisions of the Credit Agreement are made applicable to this
Guaranty and all such provisions are incorporated by reference herein as if
fully set forth herein, including Sections 1 (Definitions), 2.11 (Taxes; Net
Payments), 11.1 (Amendments and Waivers), 11.3 (No Waiver; Cumulative Remedies),
11.5 (Payment of Expenses and Taxes), 11.7 (Successors and Assigns), 11.9
(Counterparts), 11.12 (Indemnity), 11.13 (Governing Law), 11.14, (Headings
Description), 11.15 (Severability), 11.16 (Integration), 11.17 (Consent to
Jurisdiction), 11.18 (Service of Process), 11.19 (No Limitation on Service or
Suit) and 11.20 (WAIVER OF TRIAL BY JURY) thereof.
(h) Each Subsidiary Guarantor agrees that (i) the execution
and delivery of a Guaranty by any Required Additional Guarantor after the date
hereof shall not affect the obligations of the Subsidiary Guarantors hereunder,
and (ii) the Subsidiary Guarantors and each such Required Additional Guarantor
shall, subject to Section 2(b), be jointly and severally liable for all of the
Borrower Obligations.
(i) With respect to New Plan Realty Trust, this Guaranty has
been negotiated, executed and delivered on behalf of the undersigned by the
trustees or officers thereof in their representative capacity under the
Declaration of Trust, and not individually, and bind only the trust estate of
the undersigned, and no trustee, officer, employee, agent or shareholder of the
undersigned shall be bound or held to any personal liability or responsibility
in connection with the agreements, obligations and
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<PAGE> 7
undertakings of the undersigned hereunder, and any person or entity dealing with
the undersigned 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 Administrative Agent and each Lender hereby
acknowledge and agree that each agreement and other document executed by the
undersigned 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.
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<PAGE> 8
FACILITY I
IN EVIDENCE of the agreement by the parties hereto to the terms and
conditions herein contained, each such party has caused this Subsidiary
Guarantee to be duly executed on its behalf.
NEW PLAN REALTY TRUST
By: /s/ Dean Bernstein
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
EXCEL REALTY TRUST - ST, INC.
By: /s/ Dean Bernstein
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
THE BANK OF NEW YORK, as
Administrative Agent
By: /s/ Frederick Laudisi
----------------------------------
Name: Frederick Laudisi
----------------------------------
Title: Vice President
----------------------------------
<PAGE> 9
FACILITY I
SCHEDULE I
TO SUBSIDIARY GUARANTY
SUBSIDIARY GUARANTORS
UNDER GUARANTY DATED AS OF NOVEMBER 17, 1999
<TABLE>
<CAPTION>
Jurisdiction of Incorporation or Address for
Name Formation Notices
- ------------ -------------------------------- --------------------------------
<S> <C> <C>
New Plan Massachusetts 1120 Avenue of the Americas
Realty Trust New York, New York 10036
Attention: Dean Bernstein
Telephone: (212) 869-3000
Telecopy: (212) 869-3989
Excel Realty Delaware 1120 Avenue of the Americas
Trust - ST, Inc. New York, New York 10036
Attention: Dean Bernstein
Telephone: (212) 869-3000
Telecopy: (212) 869-3989
</TABLE>
<PAGE> 1
Ex. 10.15
FACILITY II
================================================================================
CREDIT AGREEMENT
by and among
NEW PLAN EXCEL REALTY TRUST, INC.
THE LENDERS PARTY HERETO,
AND
THE BANK OF NEW YORK
as Administrative Agent
BANK ONE, NA
as a Co-Documentation Agent
and
BANKBOSTON, N.A.
as a Co-Documentation Agent
Dated as of November 17, 1999
BNY CAPITAL MARKETS, INC.
as Sole Lead Arranger
and Bookrunner
================================================================================
<PAGE> 2
FACILITY II
TABLE OF CONTENTS
<TABLE>
<S> <C>
1. DEFINITIONS ........................................................................... 1
1.1. Defined Terms ...................................................................... 1
1.2. Other Definitional Provisions ...................................................... 25
2. AMOUNT AND TERMS OF LOANS AND LETTERS OF CREDIT ....................................... 26
2.1. Revolving Credit Loans ........................................................... 26
2.2. Facility Notes ................................................................... 26
2.3. Procedure for Revolving Credit Loan Borrowings Other than Swingline
Borrowings and Competitive Bid Borrowings ........................................ 27
2.4. Competitive Bid Borrowings and Procedure for Competitive Bid Borrowings .......... 29
2.5. Termination or Reduction of Commitments .......................................... 34
2.6. Repayment of Loans; Evidence of Debt ............................................. 34
2.7. Prepayments of the Loans ......................................................... 35
2.8. Swingline Loans .................................................................. 36
2.9. Letters of Credit ................................................................ 38
2.10. Conversions ...................................................................... 42
2.11. Interest Rate and Payment Dates .................................................. 43
2.12. Substituted Interest Rate ........................................................ 45
2.13. Taxes; Net Payments .............................................................. 46
2.14. Illegality ....................................................................... 46
2.15. Increased Costs .................................................................. 47
2.16. Indemnification for Break Funding Losses ......................................... 49
2.17. Use of Proceeds .................................................................. 50
2.18. Capital Adequacy ................................................................. 50
2.19. Administrative Agent's Records ................................................... 51
3. FEES; PAYMENTS ........................................................................ 51
3.1. Facility Fee ..................................................................... 51
3.2. Payments; Application of Payments ................................................ 52
4. REPRESENTATIONS AND WARRANTIES ........................................................ 53
4.1. Existence and Power .............................................................. 53
4.2. Authority ........................................................................ 54
4.3. Binding Agreement ................................................................ 54
4.4. Subsidiaries; DownREIT Partnerships .............................................. 54
4.5. Litigation ....................................................................... 55
4.6. Required Consents ................................................................ 55
4.7. No Conflicting Agreements ........................................................ 55
4.8. Compliance with Applicable Laws .................................................. 56
4.9. Taxes ............................................................................ 56
4.10. Governmental Regulations ......................................................... 56
4.11. Federal Reserve Regulations; Use of Loan Proceeds ................................ 56
4.12. Plans; Multiemployer Plans ....................................................... 57
4.13. Financial Statements ............................................................. 57
4.14. Property ......................................................................... 58
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
4.15. Franchises, Intellectual Property, Etc ........................................... 58
4.16. Environmental Matters ............................................................ 58
4.17. Labor Relations .................................................................. 60
4.18. Burdensome Obligations ........................................................... 60
4.19. Solvency ......................................................................... 60
4.20. REIT Status ...................................................................... 61
4.21. Rent Roll and List of Unencumbered Assets ........................................ 61
4.22. Year 2000 ....................................................................... 61
4.23. Operation of Business ............................................................ 61
4.24. No Misrepresentation ............................................................. 61
5. CONDITIONS TO FIRST LOANS OR LETTERS OF CREDIT ........................................ 61
5.1. Evidence of Action ............................................................... 62
5.2. This Agreement ................................................................... 63
5.3. Notes ............................................................................ 63
5.4. Guaranty ......................................................................... 63
5.5. Other Credit Agreement ........................................................... 63
5.6. Litigation ....................................................................... 63
5.7. Opinion of Counsel to the Borrower ............................................... 64
5.8. Fees ............................................................................. 64
5.9. Fees and Expenses of Special Counsel ............................................. 64
5.10. Year 2000 Assurances ............................................................. 64
6. CONDITIONS OF LENDING - ALL LOANS ..................................................... 64
6.1. Compliance ....................................................................... 64
6.2. Loan Closings .................................................................... 65
6.3. Borrowing Request ................................................................ 65
6.4. Documentation and Proceedings .................................................... 65
6.5. Required Acts and Conditions ..................................................... 65
6.6. Approval of Special Counsel ...................................................... 66
6.7. Supplemental Opinions ............................................................ 66
6.8. Other Documents .................................................................. 66
7. AFFIRMATIVE COVENANTS ................................................................. 66
7.1. Financial Statements ............................................................. 66
7.2. Certificates; Other Information .................................................. 68
7.3. Legal Existence .................................................................. 71
7.4. Taxes ............................................................................ 71
7.5. Insurance ........................................................................ 72
7.6. Payment of Indebtedness and Performance of Obligations ........................... 72
7.7. Maintenance of Property; Environmental Investigations ............................ 72
7.8. Observance of Legal Requirements ................................................. 73
7.9. Inspection of Property; Books and Records; Discussions ........................... 73
7.10. Licenses, Intellectual Property .................................................. 74
7.11. Required Additional Guarantors ................................................... 74
7.12. REIT Status; Operation of Business ............................................... 74
7.13. Termination of Existing Credit Agreements ........................................ 74
8. NEGATIVE COVENANTS .................................................................... 75
8.1. Liens ............................................................................ 75
8.2. Merger, Consolidation and Certain Dispositions of Property ....................... 76
</TABLE>
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<PAGE> 4
<TABLE>
<S> <C>
8.3. Investments, Loans, Etc .......................................................... 76
8.4. Business Changes ................................................................. 78
8.5. Amendments to Organizational Documents ........................................... 78
8.6. Bankruptcy Proceedings ........................................................... 79
8.7. Sale and Leaseback ............................................................... 79
8.8. Transactions with Affiliates ..................................................... 79
8.9. Issuance of Additional Capital Stock by Subsidiary Guarantors .................... 79
8.10. Hedging Agreements ............................................................... 79
8.11. Restricted Payments .............................................................. 80
8.12. Unencumbered Assets Coverage Ratio ............................................... 81
8.13. Fixed Charge Coverage Ratio ...................................................... 81
8.14. Minimum Tangible Net Worth ....................................................... 81
8.15. Maximum Total Indebtedness ....................................................... 81
8.16. Liabilities to Assets Ratio ...................................................... 81
8.17. Maximum Book Value of Ancillary Assets ........................................... 81
9. DEFAULT ............................................................................... 82
9.1. Events of Default ................................................................ 82
10. THE AGENT ............................................................................. 85
10.1. Appointment ...................................................................... 85
10.2. Delegation of Duties ............................................................. 86
10.3. Exculpatory Provisions ........................................................... 86
10.4. Reliance by Administrative Agent ................................................. 86
10.5. Notice of Default ................................................................ 87
10.6. Non-Reliance on Administrative Agent and Other Lenders ........................... 87
10.7. Indemnification .................................................................. 88
10.8. Administrative Agent in Its Individual Capacity .................................. 88
10.9. Successor Administrative Agent ................................................... 88
11. OTHER PROVISIONS ...................................................................... 90
11.1. Amendments and Waivers ........................................................... 90
11.2. Notices .......................................................................... 91
11.3. No Waiver; Cumulative Remedies ................................................... 92
11.4. Survival of Representations and Warranties ....................................... 92
11.5. Payment of Expenses and Taxes .................................................... 93
11.6. Lending Offices .................................................................. 94
11.7. Successors and Assigns ........................................................... 94
11.8. Designated Lender ................................................................ 97
11.9. Counterparts ..................................................................... 97
11.10. Adjustments; Set-off ............................................................. 98
11.11. Lenders' Representations ......................................................... 99
11.12. Indemnity ........................................................................ 99
11.13. Governing Law ....................................................................100
11.14. Headings Descriptive .............................................................100
11.15. Severability .....................................................................100
11.16. Integration ......................................................................100
11.17. Consent to Jurisdiction ..........................................................100
11.18. Service of Process ...............................................................101
11.19. No Limitation on Service or Suit .................................................101
11.20. WAIVER OF TRIAL BY JURY ..........................................................101
</TABLE>
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<PAGE> 5
<TABLE>
<S> <C>
11.21. Termination ......................................................................102
</TABLE>
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<PAGE> 6
FACILITY II
LIST OF EXHIBITS AND SCHEDULES
<TABLE>
<S> <C> <C>
EXHIBITS:
--------
Exhibit A - Assignment and Assumption
Exhibit B - Commitment Amounts
Exhibit C - Competitive Bid Borrowing Request
Exhibit D - Compliance Certificate
Exhibit E - Conventional Borrowing Request
Exhibit F - Guaranty
Exhibit G - Swingline Borrowing Request
Exhibit H - Facility Note
Exhibit I - Swingline Note
Exhibit J - Secretary's Certificate (Borrower)
Exhibit K - Secretary's Certificate (Guarantor)
Exhibit L - Points for Legal Opinions
Exhibit M - Designation Agreement
Exhibit N - Form of Notice of Conversion
SCHEDULES:
---------
Schedule I - Domestic and Eurodollar Lending Offices
Schedule 4.4 - Subsidiaries (including Subsidiary Guarantors)
Schedule 4.5 - Litigation
Schedule 4.12 - Plans
Schedule 4.21 - Rent Roll and List of Unencumbered Assets
Schedule 4.22 - Year 2000 Remediation
</TABLE>
<PAGE> 7
FACILITY II
CREDIT AGREEMENT, dated as of November 17, 1999, by and among NEW PLAN
EXCEL REALTY TRUST, INC., a Maryland corporation (the "Borrower"), each lender
party hereto or which becomes a "Lender" or a "Designated Lender" pursuant to
the provisions of Section 11.7 or 11.8, respectively (each a "Lender" and,
collectively, the "Lenders"), THE BANK OF NEW YORK, as administrative agent (in
such capacity, the "Administrative Agent"), and BANK ONE, NA and BANKBOSTON,
N.A. (each a "Co-Documentation Agent" and, collectively, the "Co-Documentation
Agents").
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": PricewaterhouseCoopers LLP, or after the date
hereof, any of: Arthur Andersen LLP; Deloitte & Touche LLP; Ernst & Young LLP;
KPMG LLP; or any successor to any of the foregoing, or such other firm of
certified public accountants of recognized national standing selected by the
Borrower and satisfactory to the Administrative Agent.
"Adjusted Net Operating Income": for any period, the aggregate
amount of the Net Operating Income from each Unencumbered Asset during such
period, less the Capital Expense Reserve for such Unencumbered Asset during
such period.
"Advance": an ABR Advance, a Eurodollar Advance or a
Competitive Bid Advance, as the case may be.
"Affected Advance": as defined in Section 2.12.
"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 Administrative Agent of its intent to do so in any instance in
which it shall have requested a Eurodollar Advance pursuant to Sections 2.3 or
2.10 or a Swingline Loan pursuant to Section 2.8, or shall have accepted one or
more offers of Competitive Bid Advances under Section 2.4, an amount equal to
the principal amount of such Eurodollar Advance,
<PAGE> 8
Swingline Loan or Competitive Bid Advance; (ii) a Eurodollar Advance, Swingline
Loan 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, Swingline Loan or Competitive Bid Advance; or
(iii) the Borrower shall prepay or repay all or any part of the principal amount
of a Eurodollar Advance, Swingline Loan or Competitive Bid Advance prior to the
last day of the Interest Period applicable thereto (including, without
limitation, any mandatory prepayment or a prepayment resulting from acceleration
or illegality), an amount equal to the principal amount of such Eurodollar
Advance, Swingline Loan 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 10% or more of the
securities having ordinary voting power for the election of directors of such
Person or (ii) to direct or cause the direction of the management and policies
of such Person, whether by contract or otherwise.
"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.
"Ancillary Assets": at any time, all Real Property of the
Borrower and its Subsidiaries, or in which the Borrower or any Subsidiary of
the Borrower has an interest (either directly or indirectly), and which is (i)
a Development Asset, (ii) a mortgage, or (iii) any other Real Property other
than an open air shopping center (including single tenant retail properties) or
a residential apartment building or residential apartment community (and
appurtenant amenities).
"Applicable Facility Fee Percentage": at all times during which the
applicable Pricing Level set forth below is in effect, a rate per annum equal
to the following applicable percentage amount corresponding to such Pricing
Level:
<TABLE>
<CAPTION>
Pricing Level Applicable Facility Fee Percentage
------------- ----------------------------------
<S> <C>
Pricing Level I 0.125%
Pricing Level II 0.175%
Pricing Level III 0.175%
Pricing Level IV 0.200%
Pricing Level V 0.250%
Pricing Level VI 0.300%
Pricing Level VII 0.400%.
</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
- 2 -
<PAGE> 9
any change in the Borrower's Senior Debt Rating, as determined by S&P or
Moody's, as the case may be, which would affect the applicable Pricing Level.
"Applicable Lending Office": (i) in respect of any Lender, (A)
in the case of such Lender's ABR Advances and Competitive Bid Advances, its
Domestic Lending Office and (B) in the case of such Lender's Eurodollar
Advances, its Eurodollar Lending Office, and (ii) in respect of the Swingline
Lender and the Issuing Bank, the Domestic Lending Office of each thereof.
"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, and with respect to the
participation fee payable in respect of Letters of Credit pursuant to Section
3.1(b), the respective percentage set forth below next to such Pricing Level:
<TABLE>
<S> <C>
Pricing Level Applicable Margin
------------- -----------------
Pricing Level I 0.500%
Pricing Level II 0.575%
Pricing Level III 0.575%
Pricing Level IV 0.675%
Pricing Level V 0.875%
Pricing Level VI 0.950%
Pricing Level VII 1.100%.
</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 be, which would affect the applicable Pricing
Level.
"Assignment and Assumption Agreement": an assignment and
assumption 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
Notes and Commitments, 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 Administrative Agent) of the Borrower.
- 3 -
<PAGE> 10
"Available Commitment Amount": on any day during the
Commitment 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 11.10.
"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.
"Borrower's Interest": for any period, (i) with respect to
Unencumbered Assets owned by a DownREIT Partnership, a fraction, expressed as a
percentage, the numerator of which is the Net Operating Income of such
Unencumbered Assets for such period, less any distributions required to be made
to partners or members of such DownREIT Partnership, other than the Borrower and
its Subsidiaries, and the denominator of which is the Net Operating Income of
such Unencumbered Assets for such period, and (ii) with respect to any Ancillary
Asset, the percentage of profits and losses with respect thereto to which the
Borrower or its Subsidiaries, directly or indirectly, may be entitled to receive
for such period.
"Borrowing Date": any Business Day specified in a Borrowing
Request delivered pursuant to Section 2.3, 2.4 or 2.8, as the case may be, as a
date on which the Borrower requests the Lenders or the Swingline Lender to make
Loans.
"Borrowing Request": a Conventional Borrowing Request, a
Competitive Bid Borrowing Request, or a Swingline Borrowing Request, as the
case may be.
"Business Day": for all purposes other than as set forth in
clause (ii) below, (i) any day other than a Saturday, a Sunday or a day on
which commercial banks located in New York City are authorized or required by
law or other governmental action to close and (ii) with respect to all notices
and determinations in connection with, and payments of principal and interest
on, Eurodollar Advances, 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.
"Capital Expense Reserve": during any period, (i) with
respect to each Unencumbered Asset other than a residential apartment building
or residential apartment
- 4 -
<PAGE> 11
community, an amount equal to (A) a per annum rate of $.20 times (B) the total
Net Rentable Area of such Unencumbered Asset, and (ii) with respect to each
Unencumbered Asset that is a residential apartment building or residential
apartment community, an amount equal to (A) $150 times (B) the number of
apartment units in such residential apartment building or community (in each
case whether or not such reserves are actually established by the Borrower).
"Change of Control": the occurrence of any one of the
following events:
(a) any Person or Persons acting as a group shall acquire
direct or indirect ownership of 30% or more of Borrower's common Stock; or
(b) during any twelve month period on or after the
Effective Date, individuals who at the beginning of such period constituted the
Board of Directors of the Borrower (together with any new directors whose
election by the Board of Directors or whose nomination for election by the
shareholders of the Borrower was approved by a vote of at least a majority of
the members of the Board of Directors then in office who either were members of
the Board of Directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of the members of the Board of Directors then in office;
or
(c) 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
(d) the Borrower consolidates with, is acquired by, or
merges into or with any Person (other than a merger permitted by Section 8.2).
"Chief Financial Officer": at any time, the chief financial
officer of the Borrower, or if the Borrower does not have a chief financial
officer at such time, the officer designated by the Borrower as its principal
financial officer or such other officer of the Borrower that is acceptable to
the Administrative Agent.
"Code": the Internal Revenue Code of 1986, as the same may be
amended from time to time, or any successor thereto, and the rules and
regulations issued thereunder, as from time to time in effect.
"Commitment": in respect of any Lender, such Lender's
undertaking during the Commitment Period to make Revolving Credit Loans and to
acquire participations in Letters of Credit and Swingline Loans, subject to the
terms and conditions hereof, in an aggregate outstanding principal amount not
exceeding such Lender's Commitment Amount.
- 5 -
<PAGE> 12
"Commitment Amount": the amount set forth next to the name of
such Lender in Exhibit B under the heading "Commitments" as such Lender's
Commitment Amount, as the same may be reduced pursuant to Section 2.5.
"Commitment Percentage": on any day, and as to any Lender, the
quotient of (i) such Lender's Commitment Amount on such day, divided by (ii)
the Commitments of all Lenders on such day.
"Commitment Period:" the period from the Effective Date
through the day preceding the Revolving Credit Expiration Date.
"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 2.4.
"Competitive Bid Borrowing": a borrowing pursuant to Section
2.4 consisting of simultaneous Competitive Bid Advances from each Lender whose
offer to make a Competitive Bid Advance as part of such borrowing has been
accepted by the Borrower under the auction bidding procedure set forth in
Section 2.4.
"Competitive Bid Borrowing Request": a borrowing request in
the form of Exhibit C.
"Competitive Bid Ceiling": at any time, an amount equal to 50%
of the Total Commitment Amount at such time.
"Compliance Certificate": a certificate substantially in the
form of Exhibit D.
"Consolidated": the Borrower and its Subsidiaries which are
consolidated for financial reporting purposes.
"Consolidated EBITDA": for any period, net income for such
period of the Borrower and its Subsidiaries, determined on a Consolidated basis
in accordance with GAAP, plus, without duplication and to the extent deducted
in determining such net income, the sum of (i) Consolidated Interest Expense
for such period, (ii) the aggregate amount of any taxes paid during such
period, (iii) the aggregate amount attributable to depreciation and
amortization for such period, (iv) the aggregate amount of extraordinary
charges during such period and (v) the aggregate amount of non-cash expenses
during such period, and minus, without duplication and to the extent added in
determining such net income for such period, the aggregate amount of
extraordinary gains during such period.
- 6 -
<PAGE> 13
"Consolidated Fixed Charges": during any period, the sum of
each of the following with respect to the Borrower and its Subsidiaries
(without duplication), determined on a Consolidated basis in accordance with
GAAP: (i) the aggregate amount of all interest expense, both expensed and
capitalized (including Consolidated Interest Expense) for such period, (ii) the
aggregate of all scheduled principal amounts that become payable during such
period in respect of any Indebtedness of the Borrower or its Subsidiaries
(excluding balloon payments at maturity) and (iii) the aggregate amount of all
cash dividends paid during such period in respect of preferred stock of the
Borrower or its Subsidiaries.
"Consolidated Interest Expense": for any period, interest and
fees accrued, accreted or paid by the Borrower and its Subsidiaries during such
period in respect of Consolidated Total Indebtedness, determined in accordance
with GAAP, including (a) the amortization of debt discounts to the extent
included in interest expense in accordance with GAAP, (b) the amortization of
all fees (including fees with respect to interest rate cap agreements or other
agreements or arrangements entered into by the Borrower or any of its
Subsidiaries designed to protect the Borrower or such Subsidiaries, as
applicable, against fluctuations in interest rates) payable in connection with
the incurrence of any Indebtedness to the extent included in interest expense
in accordance with GAAP and (c) the portion of any rents payable under capital
leases allocable to interest expense in accordance with GAAP.
"Consolidated Total Indebtedness": as of any date, the
aggregate principal amount of all Indebtedness of the Borrower and its
Subsidiaries determined on a Consolidated basis in accordance with GAAP, plus,
if not otherwise required to be reflected in the Borrower's Consolidated
balance sheet (and without duplication) (i) Contingent Obligations of the
Borrower and its Subsidiaries on such date which are required in accordance
with GAAP to be disclosed in a footnote to any such balance sheet, and (ii) any
guarantee by the Borrower of any Indebtedness of an unconsolidated Subsidiary
or joint venture in which the Borrower is a direct or indirect investor (to the
full extent of the amount of such guaranteed Indebtedness on such date).
"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
- 7 -
<PAGE> 14
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 2.10.
"Credit Party": the Administrative Agent, the Lead Arranger,
the Co-Documentation Agents, the Issuing Bank, the Swingline Lender, each
Lender and their successors and assigns.
"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.
"Defaulting Lender": at any time, any Lender that, at such
time, (i) has failed to comply with any of its obligations to make a Loan, fund
its share of any LC Disbursement or acquire a participation in any Swingline
Loan as required pursuant to Section 2.3, 2.4, 2.8 or 2.9 of this Agreement,
(ii) has failed to pay to the Administrative Agent or any Lender an amount owed
by such Lender pursuant to the terms of this Agreement or any of the other Loan
Documents, or (iii) has advised the Administrative Agent that it does not
intend to comply with its obligations under Section 2.3, 2.4, 2.8 or 2.9 by
reason of having been deemed insolvent or having become subject to a bankruptcy
or insolvency proceeding.
"Designated Lender": a special purpose corporation that is
engaged in making, purchasing, or otherwise investing in commercial loans in
the ordinary course of its business and that issues (or the parent of which
issues) commercial paper rated at least
- 8 -
<PAGE> 15
"Prime-1" (or the then equivalent grade) by Moody's or "A-1" (or the then
equivalent grade) by S&P that, in either case, (i) is organized under the laws
of the United States or any state thereof, (ii) shall have become a party to
this Agreement pursuant to Section 11.8 for the sole purposes of funding
Competitive Bid Advances on behalf of a Designating Lender and (iii) is not
otherwise a Lender.
"Designating Lender": as defined in Section 11.8.
"Designation Agreement": a designation agreement in
substantially the form of Exhibit M hereto entered into between a Lender (other
than a Designated Lender) and a Designated Lender, and accepted by the
Administrative Agent.
"Development Asset": any Property of the Borrower or its
Subsidiaries, or in which the Borrower or any of its Subsidiaries has an
interest (either directly or indirectly) (i) which is new construction, or
which is undergoing an expansion which will increase the Net Rentable Area of
such Property by 20,000 square feet or more (provided that with respect to any
Property which is under expansion, if the balance thereof is a fully
integrated, rentable property, then only the portion of such Property that is
under expansion shall be a Development Asset), and (ii) for which a certificate
of occupancy, whether temporary or permanent, or the functional equivalent
thereof, has not been issued with respect to such construction or expansion.
Notwithstanding the foregoing, any such new construction or expansion which
shall have been a Development Asset under the criteria of this definition shall
no longer be a Development Asset upon such time as (A) the same is an
income-producing Property in operating condition, and (B) at least 70% of the
Net Rentable Area (determined on an "as completed" basis) of such construction
or expansion is initially leased to tenants who have taken possession thereof.
"Dollars" and "$": lawful currency of the United States of
America.
"Domestic Lending Office": in respect of any Lender, the
Swingline Lender and the Issuing Bank, initially, the office or offices of such
Lender, the Swingline Lender and the Issuing Bank designated as such on
Schedule I; thereafter, such other office of such Lender, the Swingline Lender
and the Issuing Bank through which it shall be making or maintaining ABR
Advances or Competitive Bid Advances, making Swingline Loans or issuing Letters
of Credit, as reported by such Lender, the Swingline Lender or the Issuing Bank
to the Administrative Agent and the Borrower.
"DownREIT Partnership": Excel Realty Partners, L.P., E. H.
Properties, L.P. and any other partnership or limited liability company
hereafter created by the Borrower for the purpose of acquiring assets
qualifying as "real estate assets" under Section 856(c) of the Code through the
issuance of partnership or limited liability company units in such partnership
or limited liability company to third parties, provided that, in the case of
each such entity (including Excel Realty Partners, L.P. and E.H.
- 9 -
<PAGE> 16
Properties, L.P.) (i) the Borrower or a wholly owned Subsidiary of the Borrower
is the sole general partner or managing member of such partnership or limited
liability company, as the case may be, and (ii) the Borrower or its wholly owned
Subsidiary shall be entitled to receive not less than 99% of the net income and
gains before depreciation, if any, from such partnership or limited liability
company after the limited partners or non-managing members of such partnership
or limited liability company receive a stipulated distribution. Any partnership
or limited liability company created after the Effective Date must be approved
by the Administrative Agent as a "DownREIT Partnership" for purposes of being
included in this definition.
"Effective Date": the date on which the conditions specified
in Section 5 are satisfied.
"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.
"Environmental Risk Property": any Real Property of the
Borrower, a Subsidiary Guarantor or a DownREIT Partnership in respect of which,
at any time:
(i) Hazardous Substances are (A) generated or
manufactured on, transported to or from, treated at, stored at or
discharged from such Real Property in violation of any Environmental
Laws; (B) discharged into subsurface waters under such Real Property
in violation of any Environmental Laws; or (C) discharged from such
Real Property on or into property or waters (including subsurface
waters) adjacent to such Real Property in violation of any
Environmental Laws, and any of the foregoing events in (A), (B) or (C)
has an Adverse Environmental Impact; or
(ii) there exists with respect to such Real
Property (A) a claim, demand, suit, action, proceeding, event,
condition, report, directive, lien, violation, or non-compliance
concerning any 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
- 10 -
<PAGE> 17
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 such Real Property or the release of any Hazardous
Substance into the environment from such Real Property, or (B) any
actual liability in connection with the presence of any Hazardous
Substance on such Real Property or the release of any Hazardous
Substance into the environment from such Real Property, and any of the
foregoing events in (A) or (B) has an Adverse Environmental Impact.
For purposes of this definition, the term "Adverse
Environmental Impact" shall mean any event described in clauses (A),
(B) or (C) of paragraph (i) above or clauses (A) or (B) of paragraph
(ii) above which could reasonably be expected to have a material
adverse effect on (1) the value of such Real Property, (2) the
marketability of such Real Property, or (3) the ability to finance or
refinance such Real Property.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the rules and regulations issued thereunder,
as from time to time in effect.
"ERISA Affiliate": any Person which is a member of any group
of organizations (i) described in Section 414(b) or (c) of the Code of which
the Borrower is a member, or (ii) solely for purposes of potential liability
under Section 302(c)(11) of ERISA and Section 412(c)(11) of the Code and the
Lien created under Section 302(f) of ERISA and Section 412(n) of the Code,
described in Section 414(m) or (o) of the Code of which the Borrower is a
member.
"ERISA Liabilities": without duplication, the aggregate of all
unfunded vested benefits under all Plans and all potential withdrawal
liabilities under all Multiemployer Plans.
"Eurodollar Advance": collectively, the Loans (or any portions
thereof), other than Competitive Bid Advances, at such time as they (or such
portions) are made and/or being maintained at a rate of interest based upon a
particular Eurodollar Rate; and "Eurodollar Advances" shall mean all such
Eurodollar Advances in the aggregate.
"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 Administrative Agent and the Borrower.
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<PAGE> 18
"Eurodollar Rate": with respect to each Eurodollar Advance and
as determined by the Administrative 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 12:00
P.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 specified in Section 9 has been satisfied.
"Existing Credit Agreements" shall mean that (i) certain
Revolving Credit Agreement dated as of November 21, 1997 among New Plan Realty
Trust (as predecessor in interest to the Borrower), The Bank of New York, as
Administrative Agent, and the lenders signatory thereto, as the same has been
amended and assumed by the Borrower, (ii) that certain First Amended and
Restated Revolving Credit Agreement, dated as of March 31, 1998, among the
Borrower (successor by merger to Excel Realty Trust, Inc.), BankBoston, N.A.,
as Agent, and the lenders signatory thereto, as the same has been amended, and
(iii) that certain Term Loan Agreement, dated July 13, 1999, among the
Borrower, The Bank of New York, as agent, and the lenders party thereto.
"Facility Exposure": with respect to any Lender at any time,
the sum of the (i) aggregate outstanding principal amount of such Lender's
Revolving Credit Loans, (ii) LC Exposure and (iii) Swingline Exposure at such
time.
"Facility Note:" as defined in Section 2.2(a).
"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
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<PAGE> 19
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 Administrative Agent.
"Financial Statements": as defined in Section 4.13.
"Fixed Charge Coverage Ratio": for any period, the ratio of
(i) Consolidated EBITDA during such period to (ii) Consolidated Fixed Charges
during such period.
"Fixed Rate Advance": A Eurodollar Advance, a Competitive Bid
Advance or a Swingline Loan.
"Funds from Operations": With respect to any Person for any
fiscal period, the sum of (i) the net income of such Person for such fiscal
period (computed in accordance with GAAP), excluding gains (or losses) from
debt restructuring and sales of property, (ii) depreciation and amortization,
and (iii) other non-cash items, and after adjustments for unconsolidated
partnerships and joint ventures. Adjustments for unconsolidated partnerships
and joint ventures will be calculated to reflect funds from operations on the
same basis.
"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.
"Ground Lease": a ground lease in favor of the Borrower, a
wholly owned Subsidiary or a DownREIT Partnership which has an unexpired term
of 30 years or more (inclusive of any tenant-controlled renewal options) and
which includes within its terms those rights customarily required by mortgagees
making a loan secured by the interest of the holder of the leasehold estate
demised pursuant to such ground lease.
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<PAGE> 20
"Guaranty": collectively, (i) a Guaranty, substantially in the
form of Exhibit F executed by each of the Subsidiary Guarantors identified on
Schedule 4.4 and delivered to the Administrative Agent for the benefit of the
Lenders on or prior to the Effective Date, and (ii) each additional Guaranty
substantially in the form of Exhibit F executed by each Required Additional
Guarantor and delivered to the Administrative Agent for the benefit of the
Lenders after the Effective Date.
"Hazardous Substance": any hazardous or toxic substance,
material or waste, including, but not limited to, (i) those substances,
materials, and wastes listed in the United States Department of Transportation
Hazardous Materials Table (49 CFR 172.101) or by the Environmental Protection
Agency as hazardous substances (40 CFR Part 302) and amendments thereto and
replacements therefor and (ii) any substance, pollutant or material defined as,
or designated in, any Environmental Law as a "hazardous substance," "toxic
substance," "hazardous material," "hazardous waste," "restricted hazardous
waste," "pollutant," "toxic pollutant" or words of similar import.
"Hedging Agreement" means any interest rate protection
agreement, foreign currency exchange agreement, commodity price protection
agreement or other interest or currency exchange rate or commodity price
hedging arrangement.
"Highest Lawful Rate": with respect to any Lender and the
Swingline 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 or the Swingline Lender on its Note or which may be owing to such Lender
or the Swingline Lender pursuant to this Agreement under the laws applicable to
such Lender or the Swingline 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.
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<PAGE> 21
"Indemnified Person": as defined in Section 11.12.
"Intellectual Property": all copyrights, trademarks, patents,
trade names and service names.
"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, (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, and (vi) as to any Swingline Loan, the last day of
the Interest Period applicable to such Swingline Loan.
"Interest Period": (i) with respect to any Eurodollar Advance
requested by the Borrower, the period commencing on, as the case may be, the
Borrowing Date or Conversion Date with respect to such Eurodollar Advance and
ending one, two, three or six months thereafter, as selected by the Borrower in
its irrevocable Borrowing Request as provided in Section 2.3 or its irrevocable
notice of conversion as provided in Section 2.10, (ii) with respect to any
Competitive Bid Advance, the period commencing on the Borrowing Date with
respect to such Competitive Bid Advance and ending on the maturity date thereof
specified in the Competitive Bid Borrowing Request with respect thereto given
pursuant to Section 2.4, and (iii) with respect to any Swingline Loan, the
period commencing on the Borrowing Date with respect to such Swingline Loan and
ending on the maturity date thereof specified in the Swingline Borrowing
Request given pursuant to Section 2.8(c); provided, however, that all of the
foregoing provisions relating to Interest Periods are subject to the following:
(a) 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;
(b) if, with respect to the borrowing of any Loan as a
Eurodollar Advance or the conversion of one Advance to another pursuant to
Section 2.10, the Borrower shall fail to give due notice as provided in Section
2.3 or 2.10, as the case may
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<PAGE> 22
be, the Borrower shall be deemed to have elected that such Loan or Advance shall
be made as an ABR Advance;
(c) 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;
(d) no such Interest Period shall end after the last day
of the Commitment Period;
(e) the Borrower shall select Interest Periods so as not
to have more than six 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;
(f) no Interest Period pertaining to a Competitive Bid
Advance shall be shorter than 7 days or longer than 180 days;
(g) no Interest Period pertaining to a Swingline Loan
shall be shorter than 7 days or longer than 30 days; and
(h) each Interest Period for a Competitive Bid Advance
and a Swingline Loan must commence and end on a Business Day.
"Investments": as defined in Section 8.3.
"Issuing Bank": BNY, in its capacity as issuer of Letters of
Credit.
"LC Disbursement": a payment made by the Issuing Bank pursuant
to a Letter of Credit.
"LC Exposure": at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time plus (b) the
aggregate amount of all LC Disbursements that have not yet been reimbursed by
or on behalf of the Borrower at such time. The LC Exposure of any Lender at
any time shall be its Commitment Percentage of the total LC Exposure at such
time.
"LC Sublimit": $10,000,000.00
"Lead Arranger": BNY Capital Markets, Inc.
"Letter of Credit": any letter of credit, and any successive
renewals thereof, issued or made pursuant to this Agreement.
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<PAGE> 23
"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": a Revolving Credit Loan (or Loans), a
Competitive Bid Borrowing (or Borrowings) or a Swingline Loan (or Loans), as
the case may be. All Loans shall be made in Dollars.
"Loan Documents": collectively, this Agreement, the Guaranty
(and each Guaranty subsequently delivered pursuant to Section 7.11) 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 Effect": a material adverse effect on (i)
the financial condition, operations, business, or Properties 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 Administrative Agent and the Lenders to enforce the
Loan Documents.
"Maturity Date": (i) with respect to Revolving Credit Loans
made as Conventional Advances, 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, (ii) with respect to Competitive Bid Borrowings, the
date each such Competitive Bid Borrowing is due in accordance with Section
2.4(f) or by acceleration, and (iii) with respect to each Swingline Loan, the
earlier of the last day of the Interest Period applicable to such Swingline
Loan or the date on which the Swingline Note 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 Operating Income": for any period, and with respect to
all assets which are Unencumbered Assets during such period, net-income for
such period, determined in accordance with GAAP, attributable to Unencumbered
Assets, plus depreciation and amortization, interest expense and any
extraordinary or non-recurring losses deducted in calculating such net income,
minus extraordinary or non-recurring
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<PAGE> 24
gains and payments (including rent insurance proceeds and condemnation awards)
included in such net income, minus any portion of such net income attributable
to rents paid by any tenant which is an Affiliate of the Borrower, minus an
amount (but not less than zero) equal to the difference between (i) 3% of
Operating Income for such period, less (ii) management fees payable in respect
of such Unencumbered Assets during such period. For purposes of any calculation
of Net Operating Income, real estate taxes, ground rent and insurance, shall be
included only at their stabilized, recurring levels.
"Net Rentable Area": with respect to any Real Property, the
floor area of any buildings, structures or improvements thereof (expressed in
square feet) available for leasing to tenants, as determined in accordance with
the leases or site plans or leasing plans for such Real Property, or if such
leases or site plans do not set forth the floor area demised thereunder (or if
such Real Property is not subject to a lease), then as determined by the
Borrower in accordance with an industry-accepted protocol approved by the
Administrative Agent.
"Non-Recourse Exclusions": With respect to any Indebtedness of
any Person which is secured by one or more parcels of Real Property or
interests therein and which is not a general obligation of such Person, any
usual and customary exclusions from the non-recourse limitations governing such
Indebtedness, including, without limitation, exclusions for claims that (i) are
based on fraud, intentional misrepresentation or misapplication of funds, (ii)
result from intentional mismanagement of or waste at such Real Property, (iii)
arise from the presence of Hazardous Substances on such Real Property; or (iv)
are the result of any unpaid real estate taxes and assessments.
"Non-Recourse Indebtedness": At any time, Indebtedness of the
Borrower and of its Subsidiaries at such time which is secured by one or more
parcels of Real Property or interests therein and which is not a general
obligation of the Borrower or such Subsidiary, the holder of such Indebtedness
having recourse solely to the parcels of Real Property securing such
Indebtedness, the leases thereon and the rents and profits thereof (except for
recourse against the general credit of the Borrower or its Subsidiaries for any
Non-Recourse Exclusions), provided that in calculating the amount of
Non-Recourse Indebtedness at any time, the amount of any Non-Recourse
Exclusions which are the subject of a final judgment shall not be included in
Non-Recourse Indebtedness.
"Note" and "Notes": collectively, the Facility Notes and the
Swingline Note.
"Operating Property": Any Real Property which at any time (i)
is an income-producing property in operating condition and in respect of which
no material part thereof has been damaged by fire or other casualty (unless
such damage has been repaired) or condemned (unless such condemnation has been
restored), (ii) is a retail shopping center, residential apartment building,
office building or other operating
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<PAGE> 25
Property, (iii) for which a certificate of occupancy, whether temporary or
permanent, or the functional equivalent thereof, has been issued for all
improvements comprising the same and are in full force and effect, and (iv) is
at least 60% occupied by tenants who have accepted the property and are paying
rent in accordance with the terms of their leases, and "Operating Properties"
means all such Operating Properties, collectively.
"Other Credit Agreement": that certain Credit Agreement of
even date herewith among the Borrower, the Administrative Agent, the
Co-Documentation Agents and the Lenders party thereto providing for a senior
364-day revolving credit facility in favor of the Borrower, as the same may be
amended from time to time.
"Participating Lender": defined in Section 2.4.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA, or any Governmental Authority
succeeding to the functions thereof.
"Permitted Liens": Liens permitted to exist under Section 8.1.
"Person": an individual, a partnership, a corporation, a
business trust, a limited liability company, 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": one of the following seven pricing levels, as
applicable, provided that if the ratings by S&P and Moody's in any such Pricing
Level are split by more than one equivalent rating level, the operative rating
would be deemed to be one rating level higher than the lower of the two ratings,
and provided, further, that during any period that the Borrower has no Senior
Debt Rating, Pricing Level VII would be the applicable Pricing Level:
"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;
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<PAGE> 26
"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 Baa1 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 or Baa2 by Moody's and Pricing Levels I, II, III and IV are not
applicable;
"Pricing Level VI": the Pricing Level which would be
applicable for so long as the Senior Debt Rating is equal to BBB- by
S&P or Baa3 by Moody's and Pricing Levels I, II, III, IV and V are not
applicable; and
"Pricing Level VII": 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, V
and VI are not applicable.
"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, or the Swingline
Lender's Swingline Rate with respect to one or more Swingline Loans, the rate
per annum that such Lender or the Swingline Lender in good faith would have
quoted to the Borrower had the Borrower requested that such Lender or the
Swingline Lender offer to make a Competitive Bid Advance or Swingline Loan 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; each such rate to be determined by such Lender or the
Swingline Lender, as the case may be, in good faith in its sole discretion.
"Rated Period": Any period during which S&P and Moody's are
maintaining a Senior Debt Rating and such Senior Debt Rating is at least BBB-
as determined by S&P, and at least Baa3, as determined by Moody's.
"Real Property": all real Property, and all interests in real
Property, owned, leased or held by the Borrower or any Subsidiary of the
Borrower.
"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.
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<PAGE> 27
"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 Swingline Loan or convert an
Advance to a Eurodollar Advance after it shall have notified the Administrative
Agent of its intent to do so pursuant to Section 2.3 or 2.10 or accepted one or
more offers of Competitive Bid Advances under Section 2.4, a period equal to
the Interest Period that the Borrower elected in respect of such Eurodollar
Advance, Swingline Loan 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,
Swingline Loan or Competitive Bid Advance (including, without limitation, any
mandatory prepayment or a prepayment resulting from acceleration or illegality)
prior to the last day of the Interest Period applicable thereto, or the
Swingline Rate in respect of any Swingline Loan shall have been converted to
the Alternate Base Rate pursuant to Section 2.11(a), 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.
"Rent Roll": a schedule prepared by the Borrower from time to
time identifying (i) the Real Property owned by the Borrower or its
Subsidiaries and stating whether such items of Real Property are Unencumbered
Assets at such time, (ii) the annual base rent payable under each lease of Real
Property owned by the Borrower or any of its Subsidiaries, (iii) the
commencement and termination dates of the term of each such lease, (iv) any
renewal options with respect to such lease, (v) the Net Rentable Area of the
space demised under each such lease and (vi) such other information as the
Administrative Agent may reasonably require.
"Required Additional Guarantors": any Subsidiary required to
execute and deliver a Guaranty pursuant to Section 7.11.
"Required Lenders": means (a) so long as the Commitments
remain in effect (i) if no Loans are outstanding at such time or there are
Loans comprised of Conventional Advances or Swingline Loans and Competitive Bid
Advances, Lenders (other than Defaulting Lenders or Designated Lenders) having
Commitments equal to at least 51% of the Commitments of all Lenders at such
time; (ii) if Loans outstanding at such time are comprised of Conventional
Advances and/or Swingline Loans only, Lenders (other than Defaulting Lenders or
Designated Lenders) holding Notes having an unpaid principal balance equal to
at least 51% of the aggregate Loans then outstanding; and (iii) if Loans
outstanding at such time are comprised of Competitive Bid Advances only,
Lenders (other than Defaulting Lenders or Designated Lenders) having
Commitments equal to at least 51% of the Commitments of all Lenders at such
time (whether used or unused); and (b) if the Commitments have been terminated,
Lenders
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<PAGE> 28
(other than Defaulting Lenders, but including Designated Lenders) whose Loans
have an unpaid principal balance equal to at least 51% of the aggregate Loans
then outstanding.
"Restricted Payment": as to any Person, any dividend or other
distribution by such Person (whether in cash, securities or other property)
with respect to any shares of any class of equity securities or beneficial
interests of such Person, or any payment (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, acquisition, cancellation or termination of
any such shares or beneficial interests or any option, warrant or other right to
acquire any such shares or beneficial interests.
"Revolving Credit Loan" and "Revolving Credit Loans": as
defined in Section 2.1.
"Revolving Credit Expiration Date": the earlier of the
Maturity Date with respect to the Revolving Credit Loans which are not
Competitive Bid Advances, or the Revolving Credit Termination Date.
"Revolving Credit Termination Date": November 17, 2002
"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.
"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, limited liability company, joint venture or other business entity
of which such Person, directly or indirectly, either (i) in respect of a
corporation, owns or controls more than 50% of the outstanding Stock having
ordinary voting power to elect a majority of the board of directors or similar
managing body, irrespective of whether a class or classes shall or might have
voting power by reason of the happening of any contingency, or (ii) in respect
of an association, partnership, limited liability company, joint venture or
other business entity, is entitled to share, either directly or indirectly
through an entity described in clause (i) above, in more than 50% of the
profits and losses, however determined.
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<PAGE> 29
"Subsidiary Guarantor" means the Subsidiaries of the Borrower
listed on Schedule 4.4 and designated thereof as a Subsidiary Guarantor, each
Required Additional Guarantor, and their successors and assigns; and
"Subsidiary Guarantors" shall mean all such guarantors, collectively.
"Swingline Borrowing Request": a borrowing request in the form
of Exhibit G.
"Swingline Commitment" means, with respect to the Swingline
Lender, the commitment of the Swingline Lender to make Swingline Loans
hereunder, provided that the outstanding amount of Swingline Loans shall not at
any time exceed the Swingline Sublimit.
"Swingline Exposure": at any time, the aggregate principal
amount of all Swingline Loans advanced pursuant to Section 2.8 outstanding at
such time. The Swingline Exposure of each Lender at any time shall be its pro
rata percentage thereof based on its Commitment Percentage of the total of such
Swingline Loans at such time.
"Swingline Lender" means BNY in its capacity as lender of
Swingline Loans hereunder.
"Swingline Loan": a Revolving Credit Loan made by the
Swingline Lender pursuant to Section 2.8.
"Swingline Note": as defined in Section 2.8(b).
"Swingline Rate" means, with respect to each Swingline Loan,
the rate per annum proposed by the Borrower with respect to any requested
Swingline Loan and agreed to by the Swingline Lender in accordance with Section
2.8(c) as the interest rate applicable to such Swingline Loan.
"Swingline Sublimit": $25,000,000.00.
"Tangible Net Worth": as of any date of determination thereof
with respect to the Borrower and its Subsidiaries, determined on a Consolidated
basis in accordance with GAAP, the remainder of (i) the amounts which would, in
conformity with GAAP, be included under "shareholder's equity" (or any like
caption) on a Consolidated balance sheet of the Borrower and its Subsidiaries
as at such date, minus (ii) 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
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<PAGE> 30
limitation, unamortized debt discount and expense, organization costs and
research and development costs).
"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.
"Total Capital": on any date, the sum of, without duplication,
(i) all Indebtedness of the Borrower and its Subsidiaries on such date which,
in accordance with GAAP, is considered long term debt of the Borrower and its
Subsidiaries, (ii) the amounts which would, in conformity with GAAP, be
included under "shareholder's equity" (or any like caption) on a Consolidated
balance sheet of the Borrower and its Subsidiaries as at such date, (iii) the
value of all issued and outstanding preferred stock of the Borrower as set
forth on the balance sheet of the Borrower as at such date, and (iv) all Loans
outstanding on such date.
"Total Commitment Amount": on any day during the Commitment
Period, the sum of the Commitment Amounts of all Lenders on such day.
"Unencumbered Asset": Any Operating Property which at any time
(i) is wholly owned in fee simple by the Borrower, a wholly owned Subsidiary of
the Borrower or a DownREIT Partnership (or is the subject of a Ground Lease),
(ii) is free and clear of all Liens (other than Liens permitted under clauses
(i), (ii), (iii), (iv), (v) (vi), (viii) and (ix) of Section 8.1), (iii) does
not have applicable to it (or to any such Ground Lease) any restriction on the
pledge, transfer, mortgage or assignment of such Operating Property or Ground
Lease (including any restriction imposed by the organizational documents of any
such Subsidiary or DownREIT Partnership), (iv) if owned by any such Subsidiary
or DownREIT Partnership, the Stock, partnership interests or membership
interests, as the case may be, of such Subsidiary or DownREIT Partnership that
are owned by the Borrower or any Subsidiary are not subject to any pledge or
security interest in favor of any Person other than the Borrower or a
Subsidiary Guarantor, (v) is not an Environmental Risk Property; (vi) does not
have, to the best of the Borrower's knowledge, any title, survey, environmental
or other defect which could reasonably be expected to materially and adversely
affect the value, use or marketability thereof, and (vii) is located within the
contiguous 48 states of the continental United States; and "Unencumbered
Assets" mean all such Unencumbered Assets, collectively.
"Unencumbered Assets Coverage Ratio": on any date of
determination the ratio of (i) the sum of all Adjusted Net Operating Income for
all Unencumbered Assets of the Borrower and its Subsidiaries on a Consolidated
basis, plus the Borrower's Interest in all Adjusted Net Operating Income for
all Unencumbered Assets owned by a DownREIT Partnership, in each case for the
fiscal quarter most recently then ending, to (ii) the
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<PAGE> 31
portion of the Consolidated Interest Expense consisting of interest on all
unsecured Indebtedness of the Borrower and its Subsidiaries as of such fiscal
quarter end.
"Unencumbered Asset Value": as of any date the quotient of (i)
an amount equal to the Adjusted Net Operating Income for all Unencumbered
Assets in the aggregate for the four fiscal quarters of the Borrower most
recently ending as of such date, divided by (ii) 10%. For purposes of any
determination of Unencumbered Asset Value, the following limitations and
methodology shall apply: (A) the Adjusted Net Operating Income of any
Unencumbered Asset owned by a DownREIT Partnership shall be based on the
Borrower's Interest in the Adjusted Net Operating Income for each such
Unencumbered Asset for the four fiscal quarters having ended as of such date;
(B) in the event more than 10% of the gross base rents payable under all leases
for Properties of the Borrower, its Subsidiaries or a DownREIT Partnership
(including the Borrower's Interest in any Property) shall be payable by one
tenant and its Subsidiaries, then Unencumbered Asset Value shall be reduced by
the percentage amount of such excess multiplied by the Unencumbered Asset Value
attributable to the Properties leased or controlled by such tenant and its
Subsidiaries, and (C) in the event that the Borrower or a Subsidiary of the
Borrower shall not have owned an Unencumbered Asset for the entire previous
four fiscal quarters, then for the purposes of determining the Unencumbered
Asset Value with respect to such Unencumbered Asset, the Adjusted Net Operating
Income for such Unencumbered Asset shall be annualized in a manner reasonably
satisfactory to the Administrative Agent.
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.
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(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 AND LETTERS OF CREDIT.
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
Commitment Period, in an aggregate principal amount such that at any one time
the Facility Exposure of such Lender (exclusive of any Competitive Bid Advances
of such Lender at such time) shall not exceed such Lender's Commitment Amount.
At no time shall the sum of (i) the aggregate outstanding principal amount of
the Revolving Credit Loans of all Lenders, (ii) all Lenders' LC Exposure and
(iii) all Lenders' Swingline Exposure, exceed the Total Commitment Amount.
During the Commitment Period, the Borrower may borrow, prepay in whole or in
part and reborrow under the Commitments, all in accordance with the terms and
conditions of this Agreement. Subject to the provisions of Sections 2.3, 2.4 and
2.10, Revolving Credit Loans (other than Swingline Loans) may be (a) ABR
Advances, (b) Eurodollar Advances, (c) Competitive Bid Advances or (d) any
combination thereof. Each Swingline Loan shall accrue interest at the Swingline
Rate applicable thereto in accordance with Section 2.11(a).
2.2. Facility Notes.
(a) Facility Notes. The Revolving Credit Loans of each
Lender made as Conventional Advances and the LC Exposure and the Swingline
Exposure (other than the Swingline Lender's Swingline Exposure which is
evidenced by the Swingline Note) of each Lender shall be evidenced by a
promissory note of the Borrower, substantially in the form of Exhibit H, with
appropriate insertions therein as to date and principal amount (each, as
endorsed or modified from time to time, a "Facility Note" and, collectively
with the Facility Notes of all other Lenders, the "Facility 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 Revolving Credit Loans of such Lender made as
Conventional Advances and such Lender's share of the LC Disbursements and
Swingline Exposure, plus interest and other amounts owing to the Lenders under
the Loan Documents.
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(b) The Facility Notes Generally. Each Facility 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 2.11 and shall be stated to mature on the Maturity Date.
The following information shall be recorded by each Lender on its books and,
prior to any transfer of any such Notes, endorsed by such Lender on the
schedule attached thereto or any continuation thereof: (i) the date and amount
of each Revolving Credit Loan of such Lender made as a Conventional Advance;
(ii) its character as an ABR Advance, a Eurodollar Advance or a combination
thereof; (iii) the interest rate and Interest Period applicable to Eurodollar
Advances; and (iv) each payment and prepayment of the principal 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.
2.3. Procedure for Revolving Credit Loan Borrowings Other than
Swingline Borrowings and Competitive Bid Borrowings.
(a) Revolving Credit Loans. Except for Revolving Credit
Loans which the Borrower has requested be made as Competitive Bid Advances or
which are Swingline Loans (as to which the provisions of Sections 2.4 or 2.8,
respectively, shall apply), and subject to the limitations set forth in Section
2.1 and 2.3(c), the Borrower may borrow under the Commitments on any Business
Day during the Commitment Period by providing notice thereof in accordance with
Section 2.3(b).
(b) Borrowing Requests. To request Revolving Credit
Loans pursuant to Section 2.3(a), the Borrower shall notify the Administrative
Agent of such request by telephone (a) in the case of a Eurodollar Advance, not
later than 12:00 P.M., New York City time, two Business Days before the date of
the proposed borrowing of Revolving Credit Loans or (b) in the case of an ABR
Advance, not later than 12:00 P.M., New York City time, one Business Day before
the date of such proposed advance. Each such telephonic Borrowing Request shall
be irrevocable and shall be confirmed promptly by hand delivery or telecopy to
the Administrative Agent of a written Borrowing Request signed by the Borrower.
Each such telephonic and written Borrowing Request shall specify the following
information: (i) the aggregate amount of the requested borrowing of Revolving
Credit Loans; (ii) the date of such borrowing of Revolving Credit Loans, which
shall be a Business Day; (iii) whether the requested Revolving Credit Loan is
to be an ABR Advance or a Eurodollar Advance; (iv) in the case of a Eurodollar
Advance, the initial Interest Period to be applicable thereto, which shall be a
period contemplated by the definition of the term "Interest Period"; and (v)
the location and number of the Borrower's account to which funds are to be
disbursed, which shall comply with the requirements of Section 2.3(d).
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(c) Limits on Advances. Each borrowing of (i) ABR
Advances shall be in a minimum 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 $5,000,000 or such amount plus a whole
multiple of $100,000 in excess thereof, or, if less, the Available Commitment
Amount.
(d) Funding of Revolving Credit Loans. Upon receipt of
each notice of borrowing from the Borrower, the Administrative 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
pursuant to this Section available to the Administrative Agent for the account
of the Borrower at the office of the Administrative Agent set forth in Section
11.2 not later than 12:30 P.M. on the relevant Borrowing Date requested by the
Borrower in funds immediately available to the Administrative Agent at such
office. The amounts so made available to the Administrative Agent on the
Borrowing Date will then, subject to the satisfaction of the terms and
conditions of this Agreement, as determined by the Administrative Agent, be
made available on such date to the Borrower by the Administrative Agent at the
office of the Administrative 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 Administrative Agent, provided that Revolving Credit
Loans made to finance the reimbursement of an LC Disbursement as provided in
Section 2.9 shall be remitted by the Administrative Agent to the Issuing Bank.
(e) Effect of Incomplete Borrowing Request. If no
election is made as to the whether the Revolving Credit Loans shall be ABR
Advances or Eurodollar Advances, then the requested Revolving Credit Loans
shall be an ABR Advance. If no Interest Period is specified with respect to any
requested borrowing of Eurodollar Advances, then the Borrower shall be deemed
to have selected an Interest Period of one month's duration.
(f) Administrative Agent's Assumption. Unless the
Administrative 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 Administrative
Agent such Lender's pro rata share of the Revolving Credit Loans requested by
the Borrower, the Administrative Agent may assume that such Lender has made
such share available to the Administrative Agent on the Borrowing Date in
accordance with this Section, provided that such Lender received notice of the
proposed borrowing from the Administrative Agent, and the Administrative 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 Administrative Agent,
such Lender and the
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Borrower severally agree to pay to the Administrative 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
Administrative Agent, at a rate per annum equal to, in the case of the Borrower,
the applicable interest rate set forth in Section 2.11 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 Administrative Agent). Such payment by the
Borrower, however, shall be without prejudice to its rights against such Lender.
If such Lender shall pay to the Administrative 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.
2.4. Competitive Bid Borrowings and Procedure for Competitive Bid
Borrowings.
(a) Competitive Bid Borrowings. Subject to the terms and
conditions of this Agreement, each Lender severally agrees that during any
Rated Period, the Borrower may effect Competitive Bid Borrowings under this
Section 2.4 from time to time on any Business Day during the Commitment Period
in the manner set forth below, provided, however, that the principal balance of
all Competitive Bid Advances outstanding hereunder shall not at any time exceed
the lesser of (x) the Competitive Bid Ceiling, and (y) the Total Commitment
Amount less the sum of (A) the outstanding principal balance of all
Conventional Advances, (B) the LC Exposure, and (C) the Swingline Exposure.
(b) Procedure for Competitive Bid Borrowings. The
Borrower may request a Competitive Bid Borrowing under this Section 2.4 during
the Commitment Period, by giving to the Administrative Agent, not later than
12:00 P.M. at least three Business Days prior to the date of the proposed
Competitive Bid Borrowing, a Competitive Bid Borrowing Request in the form of
Exhibit C, specifying (i) the proposed date of the Competitive Bid Borrowing,
(ii) the aggregate amount of the proposed Competitive Bid Borrowing (which
amount shall not be less than $5,000,000 or such amount plus a whole multiple
of $100,000 in excess thereof), (iii) the proposed Interest Period for the
Competitive Bid Advances to be made as part of such Competitive Bid Borrowing
(which Interest Period shall end not later than 5 days prior to the Revolving
Credit Termination Date, and shall otherwise comply with the applicable
provisions of the definition of "Interest Period"), and (iv) such other terms to
be applicable to such Competitive Bid Borrowing as the Borrower may specify. The
Administrative Agent shall promptly notify (by telephone or otherwise, to be
promptly confirmed by telecopy
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or other writing) each Lender of each Competitive Bid Borrowing Request received
by it and the terms contained in such Competitive Bid Borrowing Request. Such
notice shall not be delivered separately to any Designated Lender, but shall be
deemed delivered to a Designated Lender when delivered to the Designating Lender
responsible for having appointed such Designated Lender as its Designated
Lender.
(c) Decision of Lenders to make Competitive Bid Advances.
Each Lender may, if, in its sole discretion, it elects so to do, irrevocably
offer to make one or more Revolving Credit Loans as 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 Administrative Agent, before 12:00 P.M. two Business Days before
the Borrowing Date of such proposed Competitive Bid Borrowing of (i) 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
Section 2.4(a), exceed such Lender's Commitment), and (ii) the rate or rates of
interest therefor and such Lender's Applicable Lending Office with respect to
such Competitive Bid Advance, provided that any such offer made by a Designated
Lender shall be made solely through the Designating Lender responsible for
having appointed such Designated Lender as its Designated Lender. No Lender
shall be required to specify in its Competitive Bid Advance offer whether such
Competitive Bid Advance will be funded by its Designated Lender. The
Administrative Agent shall notify the Borrower of all such offers before 12:30
P.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 11:30 A.M. two
Business Days before such proposed Borrowing Date. If any Lender other than BNY
shall fail to notify the Administrative Agent before 12:00 P.M., and if BNY in
its capacity as a Lender shall fail to notify the Borrower before 11:30 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 Administrative Agent unless such
offer is submitted to correct a manifest error in a prior offer.
(d) Borrower's Acceptance or Cancellation. The Borrower
shall, before 1:00 P.M. two Business Days before the date of such proposed
Competitive Bid Borrowing, either
(i) cancel such Competitive Bid Borrowing Request
by notice to the Administrative Agent to that effect, or
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(ii) in its sole discretion, irrevocably accept
one or more of the offers made by a Lender or Lenders pursuant to
paragraph (c) above in ascending order of the rates offered therefor,
by giving notice to the Administrative 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 Administrative Agent on behalf of such
Lender for such Competitive Bid Advance pursuant to paragraph (c)) to
be made by each Lender as part of such Competitive Bid Borrowing, and
reject any remaining offers made by Lenders pursuant to paragraph (c)
above, by giving the Administrative 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 pursuant to paragraph (c) above 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.
If the Borrower notifies the Administrative Agent that a
Competitive Bid Borrowing Request is cancelled pursuant to paragraph
(d)(i) above, the Administrative 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.
If the Borrower accepts one or more of the offers made by any
Lender or Lenders pursuant to paragraph (d)(ii) above, the
Administrative 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 paragraph (c) above, of
the date and aggregate amount of such Competitive Bid Borrowing and
whether any offer or offers made by such Lender pursuant to paragraph
(c) above have been accepted by the Borrower and (B) each Lender whose
offer to make a Competitive Bid Advance as part of such Competitive
Bid Borrowing (a "Participating Lender") of the amount of each Loan to
be made by such Lender as part of such Competitive Bid Borrowing has
been accepted by the Borrower, together with a specification of the
interest rate and Interest Payment
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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, or cause its Designated
Lender, if any, to make available, for the account of its Applicable
Lending Office to the Administrative Agent at its address specified in
Section 11.2 such Lender's portion of such Competitive Bid Borrowing,
in funds immediately available to the Administrative Agent at such
office. Competitive Bid Borrowings may be funded by a Lender's
Designated Lender as provided in Section 11.8, however, the Designating
Lender of such Designated Lender shall be responsible for making such
Competitive Bid Advance should such Designated Lender fail to do so.
Upon satisfaction of the applicable terms and conditions of this
Agreement and after receipt by the Administrative Agent of such amount
from each such Participating Lender, the Administrative Agent will make
such amount available on such date to the Borrower at the office of the
Administrative 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 Administrative Agent. After
each Competitive Bid Borrowing, if requested by any Lender, the
Administrative 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 Administrative 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
Administrative Agent may assume that such Participating Lender has made
such Participating Lender's portion of such Competitive Bid Borrowing
available to the Administrative Agent on such Borrowing Date in
accordance with this Section, and the Administrative 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
Administrative Agent, such Participating Lender and the Borrower
severally agree to pay to the Administrative 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 Administrative 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
Administrative Agent under Section 2.4(d)(ii), and, in the case of such
Lender, the Federal Funds Rate in effect on such day (as determined by
the Administrative 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 Administrative 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
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purposes of this Agreement, which Competitive Bid Advance shall be
deemed to have been made by such Participating Lender on the Borrowing
Date applicable thereto, but without prejudice to the Borrower's rights
against such Participating Lender.
Notwithstanding its appointment of a Designated Lender, no
Lender which is a Designating Lender shall be relieved of its
obligation to fund a Competitive Bid Advance, and no Designated Lender
shall be deemed to assume such obligation, prior to the time such
Competitive Bid Advance is funded.
(e) Subsequent Competitive Bid Borrowings Permitted.
Within the limits and on the conditions set forth in this Section 2.4, the
Borrower may from time to time borrow under this Section 2.4, repay pursuant to
paragraph (f) below, and reborrow under this Section 2.4.
(f) Repayment of Competitive Bid Borrowings. The
Borrower shall repay to the Administrative 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 2.4(b) above) the then unpaid principal
amount of such Competitive Bid Advance.
(g) Interest on Competitive Bid Borrowings. 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 (or whose Designated Lender made) such Competitive Bid Advance in such
Participating Lender's notice with respect thereto delivered pursuant to
Section 2.4(c) 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 2.4(b) above. Any Designated
Lender which funds a Competitive Bid Advance shall on and after the time of
such funding become the obligee under such Competitive Bid Advance.
(h) Competitive Bid Notes. At the request of any Lender,
the Borrower will deliver to such Lender a note, in the form mutually agreeable
to such Lender and the Borrower, evidencing the obligation of the Borrower to
pay the Competitive Bid Advances of such Lender, and interest thereon, in
accordance with Section 2.4(f).
(i) In General. Each Competitive Bid Advance shall be
subject to all of the provisions of this Agreement generally, provided,
however, that a Competitive Bid
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Advance shall not reduce a Lender's obligation to fund its Commitment Percentage
of any ABR Advance or Eurodollar Advance.
2.5. Termination or Reduction of Commitments.
(a) Voluntary Reductions. The Borrower shall have the
right, upon at least three Business Days' prior written notice to the
Administrative Agent, at any time to terminate the Commitments or from time to
time to permanently reduce the Commitments, provided that the total of the
Commitments shall not be reduced below an amount equal to the sum of (i) the
aggregate principal balance of the Revolving Credit Loans then outstanding
thereunder, (ii) the then current LC Exposure and (iii) the then current
Swingline Exposure (in each case after giving effect to any contemporaneous
prepayment of Loans), and provided further that any such reduction of the
Commitments shall be in the minimum amount of $5,000,000 or such amount plus a
whole multiple of $100,000 in excess thereof. In the event that the total of
the Commitments are reduced below the Swingline Sublimit, the Swingline
Sublimit shall be deemed reduced to an amount equal to the total of the
Commitments, as reduced.
(b) In General. Reductions of the Commitments shall be
applied pro rata according to the Commitments of each Lender, as the case may
be. Simultaneously with each reduction of the Commitments under this Section,
the Borrower shall pay the Facility Fee accrued (but not yet paid) on the
amount by which the Commitments have been reduced and prepay the Loans
outstanding thereunder by the amount, if any, by which the aggregate unpaid
principal balance of such Loans exceeds the amount of the 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 2.16. No reduction or termination of the Commitments or
the Swingline Sublimit may be reinstated.
2.6. Repayment of Loans; Evidence of Debt
(a) Promise to Pay. The Borrower hereby unconditionally
promises to pay (i) to the Administrative Agent for the account of each Lender
the then unpaid principal amount of each Revolving Credit Loan on the Maturity
Date, and (ii) to the Swingline Lender the then unpaid principal amount of each
Swingline Loan on the earlier of (A) the last day of the Interest Period
applicable to such Swingline Loan and (B) the Maturity Date, subject to the
provisions of Section 2.8(d). Competitive Bid Borrowings and LC Disbursements
shall be paid pursuant to Sections 2.4 and 2.9, respectively.
(b) Lenders' Accounts. Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the debt
of the Borrower to
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such Lender resulting from each Loan made by such Lender, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder.
(c) Administrative Agent's Accounts. The Administrative
Agent shall maintain accounts in which it shall record (i) the amount of each
Revolving Credit Loan, Competitive Bid Borrowing, and LC Disbursement made
hereunder, the type of Advance thereof and the Interest Period applicable
thereto, (ii) the amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Lender hereunder and (iii) the
amount of any other sum received by the Administrative Agent hereunder for the
account of the Lenders and each Lender's share thereof.
(d) Swingline Lenders' Accounts. The Swingline Lender
shall maintain accounts in which it shall record (i) the amount of each
Swingline Loan made hereunder, the Interest Period applicable thereto, (ii) the
amount of any principal or interest due and payable or to become due and
payable from the Borrower to the Swingline Lender hereunder and (iii) the
amount of any sum received by the Swingline Lender in respect of payments of
the Swingline Loans and interest thereon.
(e) Entries Made in Accounts. The entries made in the
accounts maintained pursuant to paragraphs (b), (c) and (d) of this Section
shall, to the extent not inconsistent with any entries made in any Note and
absent manifest error, be prima facie evidence of the existence and amounts of
the obligations recorded therein, provided that the failure of any Lender, the
Swingline Lender or the Administrative Agent to maintain such accounts or any
error therein shall not in any manner affect the obligation of the Borrower to
repay the Loans or any LC Disbursement in accordance with the terms of this
Agreement.
(f) Loans Evidenced by Notes. The Loans and interest
thereon shall at all times (including after assignment pursuant to Section
11.7) be represented by one or more Notes in like form payable to the order of
the payee named therein and its registered assigns.
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 2.16) at any time and from time to time by notifying the
Administrative 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
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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 Administrative Agent shall promptly
notify each Lender in respect thereof. Partial prepayments of ABR Advances
and/or Eurodollar Advances shall be in an aggregate minimum 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 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 be at least (subject to Section 2.3(c)) $1,000,000 or
such amount plus a whole multiple of $100,000 in excess thereof. Notwithstanding
anything in this Agreement to the contrary, voluntary prepayments by the
Borrower of Competitive Bid Advances or Swingline Loans are not permitted.
(b) 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 2.16.
2.8. Swingline Loans
(a) Conditions of Swingline Loans. Subject to the terms
and conditions set forth herein, the Swingline Lender agrees to make Swingline
Loans to the Borrower from time to time on any Business Day during the period
from the Effective Date to the thirty-fifth Business Day preceding the
Revolving Credit Expiration Date in an aggregate principal amount at any time
outstanding that will not result in (i) the Swingline Exposure exceeding the
Swingline Sublimit or (ii) the total Facility Exposure exceeding the Total
Commitment Amount. Notwithstanding the foregoing, the Swingline Lender shall not
be required to make a Swingline Loan if (i) prior thereto or simultaneously
therewith the Borrower shall not have delivered a Borrowing Request in
compliance with the provisions of Section 2.8(c), (ii) the Borrower does not
accept the Swingline Rate proposed by the Swingline Lender with respect to such
requested Swingline Loan, (iii) any Lender shall be in default of its
obligations under this Agreement or (iv) any Lender shall have notified the
Swingline Lender and the Borrower in writing at least one Business Day prior to
the Borrowing Date with respect to such Swingline Loan, that the conditions set
forth in Section 6 have not been satisfied and such conditions remain
unsatisfied as of the requested time of the making such Swingline Loan. Each
Swingline Loan shall be due and payable on the maturity thereof, provided that
in no event shall such maturity be later than the fifth Business Day preceding
the Revolving Credit Expiration Date. Swingline Loans shall constitute
"Revolving Credit Loans" for all purposes hereunder, but shall not be considered
the utilization of any Commitment of the Swingline Lender.
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<PAGE> 43
(b) Swingline Note. The Swingline Loans shall be
evidenced by a note (the "Swingline Note") in the form of Exhibit I in the
amount of the Swingline Sublimit and 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 2.11 and shall be stated to
mature on the Maturity Date. The following information shall be recorded by
the Swingline Lender on its books: (i) the date and amount of each Swingline
Loan, (ii) the interest rate and Interest Period applicable to such Swingline
Loan, and (iii) each payment and prepayment of the principal thereof; provided
that the failure of the Swingline Lender to make any such recordation shall not
affect the obligations of the Borrower to make payment when due of any amount
owing under the Loan Documents.
(c) Swingline Loan Borrowing Request. To request a
Swingline Loan, the Borrower shall notify the Administrative Agent and the
Swingline Lender by telephone no later than 12:00 p.m., New York City time, on
the day of the relevant Swingline Loan. Each such notice shall be irrevocable
and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent and the Swingline Lender of a Borrowing Request, which
shall specify (i) the aggregate principal amount to be borrowed, (ii) the
requested Borrowing Date (which shall be a Business Day), and (iii) the
requested Swingline Rate and the Interest Period for the requested Swingline
Loan. Subject to its agreement with the Borrower on the applicable Swingline
Rate, the Swingline Lender will make the requested amount available promptly on
that same day, to the Administrative Agent (for the account of the Borrower),
who, thereupon, will promptly make such amount available to the Borrower in like
funds in the manner provided for in Section 2.3(d). Each Swingline Loan shall be
in an aggregate amount that is an integral multiple of $100,000 and not less
than $100,000.
(d) Participation in Swingline Loans. The Swingline
Lender may by written notice given to the Administrative Agent not later than
10:00 a.m., New York City time, on any Business Day require the Lenders to
acquire participations on such Business Day in all or a portion of the
Swingline Loans outstanding. Such notice shall specify the aggregate amount of
Swingline Loans in which the Lenders will participate. Promptly upon receipt
of such notice, the Administrative Agent will give notice thereof to each
Lender, specifying in such notice such Lender's Commitment Percentage of such
Swingline Loan or Swingline Loans. Each Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to pay to the
Administrative Agent, for the account of the Swingline Lender, such Lender's
Commitment Percentage of such Swingline Loan or Swingline Loans. Each Lender
acknowledges and agrees that its obligation to acquire participations in
Swingline Loans pursuant to this paragraph is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or reduction or termination of the Commitments,
and that each such payment shall be made without any offset, abatement,
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<PAGE> 44
withholding or reduction whatsoever. Each Lender shall comply with its
obligation under this paragraph by wire transfer of immediately available funds,
in the same manner as provided in Section 2.3(e) with respect to Loans made by
such Lender (and Section 2.3(e) shall apply, mutatis mutandis, to the payment
obligations of the Lenders), and the Administrative Agent shall promptly pay to
the Swingline Lender the amounts so received by it from the Lenders. The
Administrative Agent shall notify the Borrower of any participations in any
Swingline Loan acquired pursuant to this paragraph, and thereafter payments in
respect of such Swingline Loan shall be made to the Administrative Agent and not
to the Swingline Lender. Any amounts received by the Swingline Lender from the
Borrower (or other party on behalf of the Borrower) in respect of a Swingline
Loan after receipt by the Swingline Lender of the proceeds of a sale of
participations therein shall be promptly remitted to the Administrative Agent;
any such amounts received by the Administrative Agent shall be promptly remitted
by the Administrative Agent to the Lenders that shall have made their payments
pursuant to this paragraph and to the Swingline Lender, as their interests may
appear. The purchase of participations in a Swingline Loan pursuant to this
paragraph shall not relieve the Borrower of any default in the payment thereof.
2.9. Letters of Credit.
(a) General. Subject to the terms and conditions set
forth herein, the Borrower may request the issuance of Letters of Credit
denominated in Dollars for its own account, in a form reasonably acceptable to
the Administrative Agent and the Issuing Bank, at any time and from time to
time during the period from the Effective Date to the tenth Business Day prior
to the Maturity Date with respect to Revolving Credit Loans made as
Conventional Advances. In the event of any inconsistency between the terms and
conditions of this Agreement and the terms and conditions of any form of letter
of credit application or other agreement submitted by the Borrower to, or
entered into by the Borrower with, the Issuing Bank relating to any Letter of
Credit, the terms and conditions of this Agreement shall control.
(b) Notice of Issuance; Amendment; Certain Conditions. To
request the issuance of a Letter of Credit, the Borrower shall hand deliver or
telecopy (or transmit by electronic communication, if arrangements for doing so
have been approved by the Issuing Bank) to the Issuing Bank and the
Administrative Agent (reasonably in advance of the requested date of issuance)
a notice requesting the issuance of a Letter of Credit and specifying the date
of issuance (which shall be a Business Day), the date on which such Letter of
Credit is to expire (which shall comply with paragraph (c) of this Section),
the amount of such Letter of Credit, the name and address of the beneficiary
thereof and such other information as shall be necessary to prepare such Letter
of Credit. If requested by the Issuing Bank, the Borrower shall, for
informational purposes only, complete a letter of credit application on the
Issuing Bank's standard form in connection with any request for a Letter of
Credit. A Letter of Credit shall be issued only if (and,
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<PAGE> 45
upon issuance, amendment, renewal or extension of each Letter of Credit, the
Borrower shall be deemed to represent and warrant that), after giving effect to
such issuance (i) the LC Exposure shall not exceed the LC Sublimit, and (ii) the
total Facility Exposure shall not exceed the Total Commitment Amount. Any Letter
of Credit issued may, at the request of the Borrower and with the consent of the
Letter of Credit Issuer and the Administrative Agent, be amended, renewed or
extended, provided that no Default then exists and that after giving effect
thereto, such Letter of Credit (if the same had been issued at such time) would
comply with all requirements of this Section.
(c) Expiration Date. Each Letter of Credit must expire at
or prior to the close of business on the earlier of (i) the date that is one
year after the date of the issuance of such Letter of Credit and (ii) the date
that is ten Business Days prior to the Revolving Credit Termination Date.
(d) Participations. By the issuance of a Letter of Credit
and without any further action on the part of the Issuing Bank or the Lenders,
the Issuing Bank hereby grants to each Lender, and each such Lender hereby
acquires from the Issuing Bank, a participation in such Letter of Credit equal
to such Lender's Commitment Percentage of the aggregate amount available to be
drawn under such Letter of Credit. In consideration and in furtherance of the
foregoing, each such Lender hereby absolutely and unconditionally agrees to pay
to the Administrative Agent, for the account of the Issuing Bank, such Lender's
Commitment Percentage of each LC Disbursement made by the Issuing Bank and not
reimbursed by the Borrower on the date due as provided in paragraph (e) of this
Section, or of any reimbursement payment required to be refunded to the
Borrower for any reason. Each such Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be affected by
any circumstance whatsoever, including the occurrence and continuance of a
Default or reduction or termination of any of the Commitments, and that each
such payment shall be made without any offset, abatement, withholding or
reduction whatsoever; provided, however, that no Lender shall be obligated to
make any payment to the Administrative Agent for any wrongful LC Disbursement
made by the Issuing Bank as a result of acts or omissions constituting willful
misconduct or gross negligence on the part of the Issuing Bank.
(e) Reimbursement. If the Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse
such LC Disbursement by paying to the Administrative Agent an amount equal to
such LC Disbursement not later than 1:00 p.m., New York City time, on the date
that such LC Disbursement is made, if the Borrower shall have received notice
of such LC Disbursement prior to 12:00 noon, New York City time, on such date,
or if such notice has not been received by the Borrower prior to such time on
such date, then not later than 1:00 p.m., New York City time, on (i) the
Business Day that the Borrower receives such notice, if such notice is received
prior to 12:00 noon, New York City time, on such day,
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<PAGE> 46
or (ii) the Business Day immediately following the day that the Borrower
receives such notice, if such notice is not received prior to such time on such
day. If the Borrower fails to make such payment under this paragraph when due,
the Administrative Agent shall notify each Lender of the applicable LC
Disbursement, the payment then due from the Borrower in respect thereof and such
Lender's Commitment Percentage thereof. Promptly following receipt of such
notice, each Lender shall pay to the Administrative Agent its Commitment
Percentage of the payment then due from the Borrower, in the same manner as
provided in Section 2.3 with respect to Conventional Advances made by such
Lender (and Section 2.3 shall apply, mutatis mutandis, to the payment
obligations of the Lenders), and the Administrative Agent shall promptly pay to
the Issuing Bank the amounts so received by it from the Lenders. Promptly
following receipt by the Administrative Agent of any payment from the Borrower
pursuant to this paragraph, the Administrative Agent shall distribute such
payment to the Issuing Bank or, to the extent that Lenders have made payments
pursuant to this paragraph to reimburse the Issuing Bank, then to such Lenders
and the Issuing Bank as their interests may appear. Any payment made by a Lender
pursuant to this paragraph to reimburse the Issuing Bank for any LC Disbursement
(other than the funding of a Revolving Credit Loan as contemplated above) shall
not constitute a Loan and shall not relieve the Borrower of its obligation to
reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrower's obligation to
reimburse LC Disbursements as provided in paragraph (e) of this Section shall
be absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement under any and all circumstances
whatsoever and irrespective of (i) any lack of validity or enforceability of
any Letter of Credit or this Agreement, or any term or provision therein or
herein, (ii) in the absence of the Issuing Bank's gross negligence or willful
misconduct, any draft or other document presented under a Letter of Credit
proving to be forged, fraudulent or invalid in any respect or any statement
therein being untrue or inaccurate in any respect, (iii) in the absence of the
Issuing Bank's gross negligence or willful misconduct, payment by the Issuing
Bank under a Letter of Credit against presentation of a draft or other document
that does not comply with the terms of such Letter of Credit or (iv) any other
event or circumstance whatsoever, whether or not similar to any of the
foregoing, that might, but for the provisions of this Section, constitute a
legal or equitable discharge of, or provide a right of setoff against, the
Borrower's obligations hereunder. The Lenders, the Administrative Agent and the
Co-Documentation Agents shall not have any liability or responsibility by reason
of or in connection with the issuance or transfer of any Letter of Credit or any
payment or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence
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<PAGE> 47
arising from causes beyond the control of the Issuing Bank. The parties hereto
expressly agree that, in the absence of gross negligence or willful misconduct
on the part of the Issuing Bank (as finally determined by a court of competent
jurisdiction), the Issuing Bank shall be deemed to have exercised care in each
such determination. In furtherance of the foregoing and without limiting the
generality thereof, the parties agree that, with respect to documents presented
which appear on their face to be in substantial compliance with the terms of a
Letter of Credit, the Issuing Bank may, in its sole discretion, either accept
and make payment upon such documents without responsibility for further
investigation, regardless of any notice or information to the contrary, or
refuse to accept and make payment upon such documents if such documents are not
in strict compliance with the terms of such Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall,
promptly following its receipt thereof, examine all documents purporting to
represent a demand for payment under a Letter of Credit. The Issuing Bank shall
promptly notify the Administrative Agent and the Borrower by telephone
(confirmed by telecopy) of such demand for payment and whether the Issuing Bank
has made or will make an LC Disbursement thereunder; provided that any failure
to give or delay in giving such notice shall not relieve the Borrower of its
obligation to reimburse the Issuing Bank and the Lenders with respect to any
such LC Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any
LC Disbursement, then, unless the Borrower shall reimburse such LC Disbursement
in full on the date such LC Disbursement is made, the unpaid amount thereof
shall bear interest, for each day from and including the date such LC
Disbursement is made to but excluding the date that the Borrower reimburses such
LC Disbursement, at the rate per annum then applicable to ABR Advances; provided
that, if the Borrower fails to reimburse such LC Disbursement for more than two
Business Days after the same is due pursuant to paragraph (e) of this Section,
then interest shall accrue at the rate provided for in Section 2.11(b). Interest
accrued pursuant to this paragraph shall be for the account of the Issuing Bank,
except that interest accrued on and after the date of payment by any Lender
pursuant to paragraph (e) of this Section to reimburse the Issuing Bank shall be
for the account of such Lender to the extent of such payment.
(i) Cash Collateralization. If any Event of Default shall
occur and be continuing, then on the Business Day that the Borrower receives
notice from the Administrative Agent or the Required Lenders demanding the
deposit of cash collateral pursuant to this paragraph, the Borrower shall
deposit in an account with the Administrative Agent, in the name of the
Administrative Agent and for the benefit of the Lenders, an amount in cash
equal to the LC Exposure with respect to Letters of Credit as of such date plus
any accrued and unpaid interest thereon; provided that the obligation to
deposit such cash collateral shall become effective immediately, and such
deposit shall become immediately due and payable, without demand or other
notice of any kind, upon
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<PAGE> 48
the occurrence of any Event of Default with respect to the Borrower described in
paragraphs (h) or (i) of Section 9. Such deposit shall be held by the
Administrative Agent as collateral for the payment and performance of the
obligations of the Borrower under this Agreement. The Administrative Agent shall
have exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Other than any interest earned on the investment
of such deposit, which investments shall be in direct short-term obligations of,
or short-term obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America, in each case
maturing no later than the expiry date of the Letter of Credit giving rise to
the relevant LC Exposure, such deposit shall not bear interest. Interest or
profits, if any, on such investments shall accumulate in such account. Moneys in
such account shall be applied by the Administrative Agent to reimburse the
Issuing Bank for LC Disbursements for which it has not been reimbursed and, to
the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the Borrower for the LC Exposure at such time or,
if the maturity of the Loans has been accelerated, be applied to satisfy other
obligations of the Borrower under this Agreement. If the Borrower is required to
provide an amount of cash collateral hereunder as a result of the occurrence of
an Event of Default, such amount (to the extent not applied as aforesaid) shall
be returned to the Borrower within three Business Days after all Events of
Default have been cured or waived.
2.10. Conversions.
(a) Conversion Elections. The Borrower may elect from
time to time to convert Eurodollar Advances to ABR Advances by giving the
Administrative 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 Administrative
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 such notice
shall be in the form of Exhibit N and must be delivered to the Administrative
Agent prior to 12:00 noon on the Business Day required by this Section for the
delivery of such notices to the Administrative Agent. The Administrative
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
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<PAGE> 49
Advances, or Eurodollar Advances to new Eurodollar Advances, shall be in an
aggregate principal amount of $5,000,000 or such amount plus a whole multiple of
$100,000 in excess thereof. This Section shall not apply to Swingline Loans or
Competitive Bid Borrowings, which may not be converted or continued beyond the
Interest Period applicable thereto.
(b) Effect on Conversions if an Event of Default.
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
Administrative 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 Administrative 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) Conversion not a Borrowing. Each conversion shall be
effected by each Lender by applying the proceeds of its new ABR Advance or
Eurodollar Advance, as the case may be, to its Advances (or portion thereof)
being converted (it being understood that such conversion shall not constitute
a borrowing for purposes of Sections 4, 5 or 6).
2.11. Interest Rate and Payment Dates.
(a) Prior to Maturity. Except as otherwise provided in
Section 2.11(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:
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<PAGE> 50
<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 Competitive
Advance Bid Advance determined pursuant to
Section 2.4.
Swingline Loans The Swingline Rate applicable to each
Swingline Loan, unless a participation is
required to be made pursuant Section
2.8(d), in which case such Swingline Loan
shall, from and after the date of such
participation, bear interest at the
Alternate Base Rate.
</TABLE>
(b) Event of Default. After the occurrence and during the
continuance of an Event of Default, the outstanding principal balance of the
Loans 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%.
(c) Interest Payment Dates. Accrued interest on each
Loan shall be payable in arrears on each Interest Payment Date for such Loan,
provided that (i) interest accrued pursuant to paragraph (b) of this Section
shall be payable on demand, (ii) in the event of any repayment or prepayment of
any Loan, accrued interest on the principal amount repaid or prepaid shall be
payable on the date of such repayment or prepayment and (iii) in the event of
any conversion of any Eurodollar Advance prior to the end of the current
Interest Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.
(d) 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, Competitive Bid Advances and Swingline
Loans which accrue interest at the Swingline Rate shall be calculated on the
basis of a 360-day year, in each case for the
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<PAGE> 51
actual number of days elapsed, including the first day but excluding the last.
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
Administrative 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 Administrative 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 (including the Swingline Lender), together with the
Facility Fee and all other amounts payable under the Loan Documents, to the
extent the same are construed to constitute interest, exceed the Highest Lawful
Rate. If interest payable to a Lender (including the Swingline 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, the BNY 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.
2.12. Substituted Interest Rate.
In the event that (i) the Administrative 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 2.11 or (ii)
the Required Lenders shall have notified the Administrative 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 Administrative Agent shall
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<PAGE> 52
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 Administrative 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
Administrative Agent (by notice to the Borrower promptly upon either (x) the
Administrative 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 2.11 or
(y) the Administrative Agent having been notified by such Required Lenders that
circumstances no longer render the Advances (or any portion thereof) Affected
Advances), no further Eurodollar Advances shall be required to be made by the
Lenders nor shall the Borrower have the right to convert all or any portion of
the Loans to Eurodollar Advances.
2.13. Taxes; Net Payments.
(a) All payments made by the Borrower or any Subsidiary
Guarantor under the Loan Documents shall be made free and clear of, and without
reduction for or on account of, any taxes, levies, imposts, deductions, charges
or withholdings 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 this Agreement and the
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 hereafter imposing upon the Borrower, an
obligation to withhold any portion of the payments made by the Borrower under
the Loan Documents, that payments to the Administrative Agent on behalf of such
Lender are not subject to withholding.
2.14. Illegality.
Notwithstanding any other provisions herein, if any law,
regulation, treaty or directive hereafter enacted, promulgated, approved or
issued, or any change in any
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presently existing law, regulation, treaty or directive, 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, such
Lender shall so notify the Administrative Agent and the Administrative Agent
shall forthwith give notice thereof to the other Lenders and the Borrower,
whereupon (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 Administrative Agent and the
Borrower of such event. Notwithstanding the foregoing, to the extent that the
conditions giving rise to the notice requirement set forth in this Section can
be eliminated by the transfer of such Credit Party's Loans or Commitment to
another of its branches, and to the extent that such transfer is not
inconsistent with such Credit Party's internal policies of general application
and only if, as determined by such Credit Party in its sole discretion, the
transfer of such Loan or Commitment, as the case may be, would not otherwise
adversely affect such Loans or such Credit Party, the Borrower may request, and
such Lender shall use reasonable efforts to effect, such transfer.
2.15. 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 Credit Party (or any
corporation directly or indirectly owning or controlling such Credit Party)
with any request or directive, whether or not having the force of law, from any
central bank or other Governmental Authority, agency or instrumentality:
(a) does or shall subject any Credit Party to any Taxes
of any kind whatsoever with respect to any Eurodollar Advances or any Letter of
Credit or participation therein, or its obligations under this Agreement to
make Eurodollar Advances, issue Letters of Credit or participate therein, or
change the basis of taxation of payments to any Credit Party of principal,
interest or any other amount payable hereunder in respect of its Eurodollar
Advances or Letters of Credit or participation's therein, 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 Credit Party or its Applicable Lending Office for any of such
Advances by the jurisdiction in which such Credit Party is incorporated or has
its principal office or
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such Applicable Lending Office, including, in the case of Credit Parties
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 Credit Party in respect of its Eurodollar Advances, Letters
of Credit or participations therein which, in the case of Eurodollar Advances,
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 Credit
Party of making, issuing, renewing, converting or maintaining its Eurodollar
Advances, Letters of Credit or participations therein, or its commitment to
make such Eurodollar Advances, issue such Letters of Credit or participate
therein, or to reduce any amount receivable hereunder in respect of its
Eurodollar Advances, Letters of Credit or participations therein, then, in any
such case, the Borrower shall pay such Credit Party, upon its demand, any
additional amounts necessary to compensate such Credit Party for such additional
cost or reduction in such amount receivable which such Credit Party deems to be
material as determined by such Credit Party; provided, however, that nothing in
this Section shall require the Borrower to indemnify the Credit Parties with
respect to withholding Taxes for which the Borrower has no obligation under
Section 2.13. No failure by any Credit Party to demand compensation for any
increased cost during any Interest Period shall constitute a waiver of such
Credit Party'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 Credit Party to the Borrower shall be
conclusive absent manifest error. The obligations of the Borrower under this
Section shall survive the termination of this Agreement and any of the
Commitments or the payment of the Notes and all other amounts payable under the
Loan Documents. Failure to demand compensation pursuant to this Section shall
not constitute a waiver of such Credit Party's right to demand such
compensation. To the extent that any increased costs of the type referred to in
this Section are being incurred by a Credit Party and such costs can be
eliminated or reduced by the transfer of such Credit Party's Loans or Commitment
to another of its branches, and to the extent that such transfer is not
inconsistent with such Credit Party's internal policies of general application
and only if, as determined by such Credit Party in its sole discretion, the
transfer of such Loan or Commitment, as the case may be, would not otherwise
materially adversely affect such Loan or such Credit Party, the Borrower may
request, and such Lender shall use reasonable efforts to effect, such transfer.
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2.16. Indemnification for Break Funding Losses.
Notwithstanding anything contained herein to the contrary, if
(i) the Borrower shall fail to borrow or convert on a Borrowing Date or
Conversion Date after it shall have given notice to do so in which it shall
have requested a Eurodollar Advance pursuant to Section 2.3 or 2.9, (ii) the
Borrower shall fail to borrow after having accepted one or more offers of
Competitive Bid Advances under Section 2.4, (iii) the Borrower shall fail to
borrow after having requested a Swingline Loan pursuant to Section 2.8, (iv) a
Eurodollar Advance, Competitive Bid Advance or Swingline Loan shall be
terminated or prepaid for any reason prior to the last day of the Interest
Period applicable thereto (including, without limitation, any mandatory
prepayment or a prepayment resulting from acceleration or illegality), or (v)
the Swingline Rate applicable to any Swingline Loan shall be converted to the
Alternate Base Rate pursuant to Section 2.11(a) and, at the time of such
conversion, an Event of Default exists, the Borrower agrees to indemnify each
Credit Party against, and to pay on demand directly to such Credit Party, any
loss or expense suffered by such Credit Party as a result of such failure to
borrow or convert, or such 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 Credit Party's pro rata share of the Affected
Principal Amount;
"B" equals the applicable Eurodollar Rate, the rate which such
Competitive Bid Advance bears to such Loan or the applicable
Swingline Rate (in each case expressed as a decimal), as the
case may be;
"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 Credit
Party would have quoted) in an amount equal approximately to
such Credit Party'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
Credit Party;
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"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 Credit Party) suffered by such Credit Party
in connection with such Eurodollar Advance, Competitive Bid Advance or
Swingline Loan, 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. A
statement setting forth the calculations of any amounts payable pursuant to
this Section submitted by a Credit Party to the Borrower shall be conclusive and
binding on the Borrower absent manifest error. The obligations of the Borrower
under this Section shall survive the termination of this Agreement and the
Commitments and the payment of the Notes and all other amounts payable under the
Loan Documents.
2.17. Use of Proceeds.
The proceeds of Loans and the Letters of Credit shall be used
solely for general business purposes, and such use shall conform to the
provisions of Section 4.11, provided that the first Loans hereunder shall be
applied to pay in full any loans outstanding under the Existing Credit
Agreements, together with all interest, fees, breakage costs and other amounts
outstanding thereunder.
2.18. Capital Adequacy.
If (i) after the date hereof, 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 or not 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 Credit Party (or any lending office of such
Credit Party) or any corporation directly or indirectly owning or controlling
such Credit Party or imposes any restriction on or otherwise adversely affects
such Credit Party (or any lending office of such Credit Party) or any
corporation directly or indirectly owning or controlling such Credit Party and
such Credit Party shall have reasonably determined that such enactment,
promulgation, change or compliance has the effect of reducing the rate of
return on such Credit Party's capital or
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the asset value to such Credit Party of any Loan made by such Credit Party 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 Credit Party could have
achieved but for such enactment, promulgation, change or compliance (after
taking into account such Credit Party's policies regarding capital adequacy) by
an amount deemed by such Credit Party to be material, then, upon demand by such
Credit Party, the Borrower shall promptly pay to such Credit Party such
additional amount or amounts as shall be sufficient to compensate such Credit
Party 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
Administrative Agent setting forth the determination of such amount or amounts
that will compensate such Credit Party for such reductions shall be presumed
correct absent manifest error. No failure by any Credit Party to demand
compensation for such amounts hereunder shall constitute a waiver of such Credit
Party's right to demand such compensation at any time. Such Credit Party shall,
however, use reasonable efforts to notify the Borrower of such claim within 90
days after the officer of such Credit Party 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 this Agreement and the Commitments and the payment of the Notes and all other
amounts payable under the Loan Documents.
2.19. Administrative Agent's Records.
The Administrative Agent's records with respect to the Loans,
the interest rates applicable thereto, each payment by the Borrower of
principal and interest on the Loans, and fees, expenses and any other amounts
due and payable in connection with this Agreement shall be presumptively
correct absent manifest error as to the amount of the Loans, and the amount of
principal and interest paid by the Borrower in respect of such Loans and as to
the other information relating to the Loans, and amounts paid and payable by
the Borrower hereunder and under the Notes. The Administrative 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.
3. FEES; PAYMENTS
3.1. Facility Fee.
(a) The Borrower agrees to pay to the Administrative
Agent, for the account of the Lenders in accordance with each Lender's
Commitment Percentage, a fee (the "Facility Fee"), from the Effective Date
through the Maturity Date for Revolving Credit Loans made as Conventional
Advances, computed as follows: an amount, determined periodically as hereinafter
set forth, equal to the product of (i) the Applicable
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Facility Fee Percentage times (ii) the average daily Total Commitment Amount
during such period. 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 any optional
reduction of the Total Commitment Amount, and on the Maturity Date for Revolving
Credit Loans made as Conventional Advances. 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.
(b) The Borrower agrees to pay (i) to the Administrative
Agent for the account of each Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at rate per annum equal
to the Applicable Margin on the average daily amount of such Lender's LC
Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Effective Date but
excluding the later of the date on which such Lender's Commitment terminates
and the date on which such Lender ceases to have any LC Exposure and (ii) to
the Issuing Bank, for its own account, the Issuing Bank's standard fronting
fees with respect to the issuance, amendment, renewal or extension of any
Letter of Credit or processing of drawings thereunder. Accrued participation
fees and fronting fees shall be payable in arrears on the last day of March,
June, September and December of each year, commencing on the first such date to
occur after the date hereof; provided that all such fees shall be payable on
the date on which the Commitments terminate and any such fees accruing after
the date on which the Commitments terminate shall be payable on demand. All
other fees payable to the Issuing Bank pursuant to this paragraph shall also be
payable on demand. All participation fees and fronting fees shall be computed
on the basis of a year of 360 days and shall be payable for the actual number
of days elapsed.
(c) The Borrower agrees to pay any other fees payable to
any Credit Party under any separate agreement at the times so agreed upon in
such separate agreements.
(d) All fees and other amounts payable under paragraphs
(a) and (b) of this Section shall be paid on the dates due, in immediately
available funds, to the Administrative Agent for distribution, in the case of
the Facility Fee and participation fees described therein, and other fees and
amounts payable under this Section shall be paid directly to the Credit Party to
whom such fees and other amounts are payable. Fees and other amounts paid shall
not be refundable under any circumstances.
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3.2. Payments; Application of Payments.
Each payment, including each prepayment, of principal and
interest on the Loans, LC Disbursements and the Facility Fee shall be made by
the Borrower to the Administrative Agent, without set-off, deduction or
counterclaim, at its office set forth in Section 11.2 in funds immediately
available to the Administrative Agent at such office by 12:00 noon on the due
date for such payment. Promptly upon receipt thereof by the Administrative
Agent, the Administrative 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 of principal or interest due on such Competitive Bid
Advances in accordance with Sections 2.4(c) and (d), (iii) to the Swingline
Lender, each payment which is in respect of principal or interest due on any
Swingline Loan and (iv) in the case of the Facility Fee, to all Lenders pro
rata according to each Lender's Commitment Percentage thereof. The failure of
the Borrower to make any such payment by such time shall not constitute a
default hereunder, provided that such payment is made on such due date, but any
such payment made after 12:00 noon on such due date shall be deemed to have
been made on the next Business Day for the purpose of calculating interest on
amounts outstanding on the Loans. If any payment hereunder or under the Notes
shall be due and payable on a day which is not a Business Day, the due date
thereof (except as otherwise provided in the definition of Interest Period)
shall be extended to the next Business Day and (except with respect to payments
in respect of the Facility Fee) interest shall be payable at the applicable
rate specified herein during such extension. If any payment is made with
respect to any Eurodollar Advance or Competitive Bid Advance prior to the last
day of the applicable Interest Period, the Borrower shall indemnify each Lender
in accordance with Section 2.16.
4. REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent and the Lenders to enter
into this Agreement and to make the Loans the Borrower makes the following
representations and warranties to the Administrative Agent and each Lender:
4.1. Existence and Power.
(a) The Borrower is a Maryland corporation duly organized
and validly existing and in good standing under the laws of Maryland, has all
requisite power and authority to own its Property and to carry on its business
as now conducted, and is in good standing and authorized to do business in each
jurisdiction in which the nature of
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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) Each Subsidiary of the Borrower (including each
Subsidiary Guarantor) is a corporation, partnership, limited liability company,
real estate investment trust or business trust, is validly existing and in good
standing under the laws of the jurisdiction of its organization, has all
requisite power and authority to own its Property and to carry on its business
as now conducted, and is in good standing and authorized to do business in each
other 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.
4.2. Authority.
The Borrower has full legal power and authority to enter into,
execute, deliver and perform the terms of the Loan Documents to which it is a
party 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 corporate action.
4.3. Binding Agreement.
(a) The Loan Documents to which the Borrower is a party
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) The execution, delivery and performance by the
Borrower of the Loan Documents to which it is a party does not violate the
provisions of any applicable statute, law (including, without limitation, any
applicable usury or similar law), rule or regulation of any Governmental
Authority.
4.4. Subsidiaries; DownREIT Partnerships.
As of the Effective Date, the Borrower has only the
Subsidiaries set forth on Schedule 4.4. Schedule 4.4 sets forth the name of,
and the ownership interest of the Borrower in, each Subsidiary of the Borrower
and identifies each Subsidiary that is a Subsidiary Guarantor, in each case as
of the Effective Date. The shares of each corporate Subsidiary of the Borrower
that are owned by the Borrower are duly authorized, validly issued, fully paid
and nonassessable and are owned free and clear of any Liens. The
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interest of the Borrower in each non-corporate Subsidiary is owned free and
clear of any Liens (other than Liens applicable to a partner under the terms of
any partnership agreement to secure the Borrower's obligation to make capital
contributions or similar payments thereunder). As of the Effective Date, the
only DownREIT Partnerships are Excel Realty Partners, L.P. and E.H. Properties,
L.P.
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 of the Borrower)
pending or, to the knowledge of the Borrower, threatened against the Borrower
or any Subsidiary of the Borrower 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
franchise, right, license, permit or similar authorization held by the Borrower
or any Subsidiary of the Borrower, which rescission, termination or
cancellation could reasonably be expected to have a Material Adverse Effect.
(b) As of the date hereof, Schedule 4.5 sets forth all
actions, suits and 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 of the Borrower) pending or, to the knowledge of the Borrower,
threatened against the Borrower, any Subsidiary of the Borrower 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 be obtained by the Borrower to authorize, or
is required in connection with the execution, delivery and performance of the
Loan Documents or is required to be obtained by the Borrower as a condition to
the validity or enforceability of the Loan Documents.
4.7. No Conflicting Agreements.
Neither the Borrower nor any Subsidiary of the Borrower is in
default beyond any applicable grace or cure period under any mortgage,
indenture, contract or agreement to which it is a party or by which it or any
of its Property is bound, the effect of which default could reasonably be
expected to have a Material Adverse Effect. The execution, delivery or
carrying out of the terms of the Loan Documents will not
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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 of the Borrower pursuant to the terms of any such mortgage,
indenture, contract or agreement.
4.8. Compliance with Applicable Laws.
Neither the Borrower nor any Subsidiary of the Borrower 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 of
the Borrower is in compliance in all material respects with all statutes,
regulations, rules and orders applicable to Borrower or such Subsidiary of all
Governmental Authorities, including, without limitation, (i) Environmental Laws
and ERISA, a violation of which could reasonably be expected to have a Material
Adverse Effect; and (ii) Sections 856-860 of the Code, compliance with which is
required to preserve the Borrower's status as a REIT.
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 permitted under Section 7.4) in
which the failure to pay could reasonably be expected to have a Material
Adverse Effect, and no tax Liens have been filed with respect thereto. The
charges, accruals and reserves on the books of the Borrower and each Subsidiary
of the Borrower 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 of its Subsidiaries or any claims being asserted which could
reasonably be expected to have a Material Adverse Effect.
4.10. Governmental Regulations.
Neither the Borrower nor any Subsidiary of the Borrower is
subject to regulation under the Public Utility Holding Company Act of 1935, as
amended, the Federal Power Act, as amended, or the Investment Company Act of
1940, as amended, and neither the Borrower nor any Subsidiary of the Borrower
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 of the Borrower 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 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.
As of the Effective Date, 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
Administrative Agent and each Lender as required by Section 7.2(d). As of
December 31, 1998, 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 Administrative
Agent and the Lenders (i) copies of the audited Consolidated Balance Sheet of
the Borrower and its Consolidated Subsidiaries as of December 31, 1998, and the
related Consolidated Statements of Operations, Stockholders' Equity and Cash
Flows for the Borrower and its Consolidated Subsidiaries for the five months
ended December 31, 1998 and the 12 months ended July 31, 1998, and (ii) the
Consolidated Statements of Income and Cash Flows for the Borrower and its
Consolidated Subsidiaries for the fiscal quarters of the Borrower ending March
31, 1999 and June 30, 1999, certified by its Chief Financial Officer
(collectively, 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
Consolidated Subsidiaries as of the dates and for the periods indicated therein
and have been prepared in conformity with GAAP. Except as reflected in the
Financial Statements or in the notes thereto, neither the
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Borrower nor any Subsidiary of the Borrower 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 June 30, 1999 through the Effective Date there has been no material
adverse change in the financial condition or business of the Borrower and its
Subsidiaries taken as a whole.
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.
There are no unpaid or outstanding real estate or similar taxes or assessments
on or against any Real Property other than (i) real estate or other taxes or
assessments that are not yet due and payable, and (ii) such taxes as the
Borrower or any Subsidiary of the Borrower is contesting in good faith or which
individually or in the aggregate could not reasonably be expected to have a
Materially Adverse Effect. There are no pending eminent domain proceedings
against any Real Property, and, to the knowledge of the Borrower, no such
proceedings are presently threatened or contemplated by any Governmental
Authority against any Real Property, which individually or in the aggregate
could reasonably be expected to have a Material Adverse Effect. None of the
Real Property is now damaged as a result of any fire, explosion, accident,
flood or other casualty which individually or in the aggregate could reasonably
be expected to have a Material Adverse Effect.
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,
in each case that are material and necessary for the conduct of its business,
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 of its Subsidiaries is in
compliance with the requirements of all applicable Environmental Laws except
for such non-compliance which could not, either individually or in the
aggregate, be reasonably expected to have a Material Adverse Effect.
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(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 violation, in the case of either
(i), (ii) or (iii) could, either individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
(c) Neither the Borrower nor any of its Subsidiaries (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 of the Borrower) or the release or threatened release of any
Hazardous Substance into the environment which, in either case, could, either
individually or in the aggregate, reasonably be expected to have 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 of the Borrower) or
the release or threatened release of any Hazardous Substance into the
environment which, in either case, could, either individually or in the
aggregate, reasonably be expected to have 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 of the Borrower) or a release or threatened release of any
Hazardous Substance into the environment for which the Borrower or any
Subsidiary of the Borrower is or may be liable the results of which could, in
either case, either individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect, or (iv) has received notice that the Borrower or
any Subsidiary of the Borrower is or may be liable to any Person under any
Environmental Law which liability could, either individually or in the
aggregate, reasonably be expected to have 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
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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 of its Subsidiaries 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 of its Subsidiaries 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 adversely affect or impair the
revenue or cash flow of the Borrower or such Subsidiary in such a manner as
could reasonably be expected to have a Material Adverse Effect, or materially
and adversely affect or impair the ability of the Borrower or such Subsidiary
to perform its obligations under the Loan Documents. The Borrower does not
presently anticipate that future expenditures by the Borrower or any Subsidiary
of the Borrower 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. Solvency.
On the Effective Date and immediately following the making of
each Loan, and after giving effect to the application of the proceeds of such
Loan: (a) the fair value of the assets of the Borrower and its Subsidiaries,
taken as a whole, at a fair valuation, will exceed the debts and liabilities,
including Contingent Obligations, of the Borrower and its Subsidiaries, taken
as a whole; (b) the present fair saleable value of the property of the Borrower
and its Subsidiaries, taken as a whole, will be greater than the amount that
will be required to pay the probable liability of the debts and other
liabilities, subordinated, contingent or otherwise of the Borrower and its
Subsidiaries, as such debts and other liabilities become absolute and matured;
(c) the Borrower and its Subsidiaries, taken as a whole, will be able to pay
its debts and liabilities, subordinated, contingent or otherwise, as such debts
and liabilities become absolute and matured; and (d) the
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Borrower and its Subsidiaries, taken as a whole, will not have unreasonably
small capital with which to conduct the business in which it is engaged as such
business is now conducted and is proposed to be conducted hereafter.
4.20. REIT Status.
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 compliance in all material
respects with all Code sections applicable to REITs generally and the
regulations and rulings issued thereunder.
4.21. Rent Roll and List of Unencumbered Assets.
A true, correct and complete Rent Roll, dated not earlier than
30 days prior to the date of this Agreement, and a list of all the Unencumbered
Assets of the Borrower as of such date is attached hereto as Schedule 4.21.
4.22. Year 2000.
The Borrower has completed its assessment of its centralized
corporate business and technical information systems as to Year 2000 compliance
and functionality and has completed its remediation of such systems as more
particularly set forth on Schedule 4.22. 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 as more
particularly set forth on Schedule 4.22. All statements and disclosures on
Schedule 4.22 are true and correct in all material respects and fairly present
the Year 2000 preparedness of the Borrower.
4.23. Operation of Business.
The Borrower is a self-advised and self-managed REIT.
4.24. No Misrepresentation.
No representation or warranty contained herein and no
certificate or report furnished or to be furnished by the Borrower or any
Subsidiary of the Borrower 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.
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5. CONDITIONS TO FIRST LOANS OR LETTERS OF CREDIT
In addition to the conditions precedent set forth in Section
6, the obligation of each Lender to make its first Loan, the Swingline Lender
to make the first Swingline Loan or the Issuing Bank to issue the first Letter
of Credit shall be subject to the fulfillment of the following conditions
precedent:
5.1. Evidence of Action.
(a) The Administrative Agent shall have received a
certificate, dated the first Borrowing Date, of the Secretary or Assistant
Secretary of the Borrower substantially in the form of Exhibit J (i) attaching
a true and complete copy of the resolutions of its Board of Directors
authorizing the execution and delivery of the Loan Documents by the Borrower
and the performance of the Borrower's obligations thereunder, and of all other
documents evidencing other necessary action (in form and substance reasonably
satisfactory to the Administrative Agent) taken by it to authorize the Loan
Documents and the transactions contemplated thereby, (ii) attaching a true and
complete copy of its articles of incorporation and by-laws, (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)
certifying that said corporate charter and by-laws are true and complete copies
thereof, are in full force and effect and have not been amended or modified.
(b) The Administrative Agent shall have received a
certificate, dated the first Borrowing Date, of the Secretary or Assistant
Secretary of each Subsidiary Guarantor substantially in the form of Exhibit K
(i) attaching a true and complete copy of the resolutions of its Board of
Directors or Trustees, as the case may be, authorizing its execution and
delivery of the Guaranty and the performance of its obligations thereunder, and
of all other documents evidencing other necessary action (in form and substance
reasonably satisfactory to the Administrative Agent) taken by it to authorize
the Guaranty and the transactions contemplated thereby, (ii) attaching a true
and complete copy of its articles of incorporation or corporate charter or
declaration of trust and, if applicable, by-laws, (iii) setting forth the
incumbency of its officer or officers who may sign the Guaranty, including
therein a signature specimen of such officer or officers, and (iv) certifying
that said articles of incorporation, corporate charter or declaration of trust
and, if applicable, by-laws, are true and complete copies thereof, is in full
force and effect and has not been amended or modified.
(c) The Administrative Agent shall have received
certificates of good standing for the Borrower from the Maryland State
Department of Assessments and Taxation and for each Subsidiary Guarantor from
the Secretary of State for the state in which such Subsidiary Guarantor is
incorporated, and for the Borrower from each
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jurisdiction other than Maryland 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 Administrative Agent shall have received counterparts of
this Agreement signed by each of the parties hereto (or receipt by the
Administrative Agent from a party hereto of a facsimile signature page signed
by such party which shall have agreed to promptly provide the Administrative
Agent with originally executed counterparts hereof).
5.3. Notes.
The Administrative Agent shall have received the Notes, duly
executed by an Authorized Signatory of the Borrower.
5.4. Guaranty.
The Administrative Agent shall have received counterparts of
the Guaranty signed by each of the Subsidiary Guarantors (or receipt by the
Administrative Agent from a party hereto of a facsimile signature page signed
by such party which shall have agreed to promptly provide the Administrative
Agent with originally executed counterparts hereof).
5.5. Other Credit Agreement.
The Administrative Agent shall have received counterparts of
the Other Credit Agreement signed by each of the parties thereto (or receipt by
the Administrative Agent from a party thereto of a facsimile signature page
signed by such party which shall have agreed to promptly provide the
Administrative Agent with originally executed counterparts hereof), and the
Borrower shall have complied with all other conditions of Article 5 of the
Other Credit Agreement which are conditions precedent to the first loan
thereunder.
5.6. 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 Administrative
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Agent shall have received a certificate of an Authorized Signatory of the
Borrower to the foregoing effects.
5.7. Opinion of Counsel to the Borrower.
The Administrative Agent shall have received an opinion of (i)
Hogan & Hartson, L.L.P., outside counsel to the Borrower, and (ii) Steven F.
Siegel, Esq., in-house counsel to the Borrower, and (iii) counsel to each
Subsidiary Guarantor, each addressed to the Administrative Agent and the
Lenders, and each dated the first Borrowing Date, covering the matters set
forth in Exhibit L.
5.8. Fees.
The Facility Fee, to the extent then due and payable, and all
fees payable to the Administrative Agent, the Lead Arranger, the
Co-Documentation Agents and the Lenders shall have been paid.
5.9. 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.
5.10. Year 2000 Assurances.
On the Effective Date, the Administrative Agent shall have
received such documentation and information from the Borrower and its
Subsidiaries as may be reasonably satisfactory to the Administrative Agent
demonstrating that the representations of the Borrower in Section 4.22 are true
and correct as of the Effective Date.
6. CONDITIONS OF LENDING - ALL LOANS
The obligation of each Lender to make any Revolving Credit Loan, of
the Swingline Lender to make a Swingline Loan or the Issuing Bank to issue a
Letter of Credit 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 or Letter of Credit issued: (a) the Borrower shall be in
compliance with all of the terms, covenants and conditions hereof, (b) there
shall not exist and be continuing any 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
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representations and warranties had been made on such Borrowing Date (except for
representations and warranties that speak as of a specific date, which need only
be true and correct as of such date), (d) the sum of the Revolving Credit Loans,
the LC Exposure and the Swingline Exposure shall not exceed the Total Commitment
Amount, and (e) the total outstanding Swingline Loans shall not exceed the
Swingline Sublimit. Each notice requesting a Revolving Credit Loan, a
Competitive Bid Borrowing, a Swingline Loan or the issuance of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof 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 Administrative Agent on or before the
applicable Borrowing Date or prior to the issuance of a Letter of Credit shall
have been executed and shall have been delivered at the office of the
Administrative Agent set forth in Section 11.2 on or before such Borrowing
Date.
6.3. Borrowing Request.
With respect to each borrowing of a Revolving Credit Loan or a
Swingline Loan, the Administrative Agent shall have received a Conventional
Borrowing Request, a Competitive Bid Borrowing Request, or a Swingline
Borrowing Request, as the case may be, duly executed by an Authorized Signatory
of the Borrower. With respect to the issuance of a Letter of Credit, the
Administrative Agent shall have received the documents required pursuant to
Section 2.9(b).
6.4. Documentation and Proceedings.
All corporate 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
Administrative Agent and the Administrative Agent shall have received all
information and copies of all documents which the Administrative 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 or performed by
the Borrower and to have happened on or prior to such Borrowing Date and which
are necessary for the
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continued effectiveness of the Loan Documents, shall have been done or 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
and issuance of each Letter of Credit shall be reasonably satisfactory to
Special Counsel.
6.7. Supplemental Opinions.
If reasonably requested by the Administrative Agent with
respect to the applicable Borrowing Date, there shall have been delivered to
the Administrative Agent favorable supplementary opinions of counsel to the
Borrower, addressed to the Administrative Agent and the Lenders and dated such
Borrowing Date, covering such matters incident to the transactions contemplated
herein as the Administrative Agent may reasonably request.
6.8. Other Documents.
The Administrative Agent shall have received such other
documents and information with respect to the Borrower and its Subsidiaries or
the transactions contemplated hereby as the Administrative Agent or the Lenders
shall reasonably request.
7. AFFIRMATIVE COVENANTS
The Borrower agrees that, so long as any Loan remains outstanding and
unpaid, there exists any LC exposure, any other amount is owing under any Loan
Document to any Lender or the Administrative Agent, or any Lender, the
Swingline Lender or the Issuing Bank shall have any obligation to make Loans or
Swingline Loans, or issue Letters of Credit, 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 Administrative Agent and each
Lender:
(a) Annual Statements. 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 as at the end of such fiscal year, together
with the related Consolidated Statements of Income, 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
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Income, 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 Consolidated
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 Consolidated 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) Annual Operating Statements and Rent Roll. As soon
as available, but in any event within 60 days after the end of each fiscal year
of the Borrower, copies of (i) the operating statements (in a form reasonably
satisfactory to the Administrative Agent) for all Real Property of the
Borrower, and (ii) a Rent Roll, each of which shall be certified by the Chief
Financial Officer to be true, correct and complete in all material respects.
(c) Quarterly Statements. 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 unaudited Consolidated Balance Sheet of the
Borrower as at the end of each such quarterly period, together with the related
unaudited Consolidated Statements of Income and Cash Flows for the elapsed
portion of the fiscal year through the end of such period, 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 as being true,
correct and complete in all material respects and as presenting fairly the
Consolidated financial condition and the Consolidated results of operations of
the Borrower and its Subsidiaries.
(d) Quarterly Information Regarding Unencumbered Assets.
As soon as available, but in any event 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 list of all the Unencumbered Assets owned by
the Borrower, any wholly owned Subsidiary of the Borrower and each DownREIT
Partnership as of the last day of such fiscal quarter setting forth the
following information with respect to each such Unencumbered Asset as of such
date: (i) asset type (i.e., retail shopping center or residential apartment
building); (ii) location; (iii) percentage of the Unencumbered Asset owned by
the Borrower, any wholly owned Subsidiary of the Borrower and each DownREIT
Partnership; and (iv) the Net Operating Income for such Unencumbered Asset
during such fiscal quarter.
(e) Compliance Certificate. 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
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quarter of the Borrower), a Compliance Certificate, certified by the Chief
Financial Officer, setting forth in reasonable detail the computations
demonstrating the Borrower's compliance with the provisions of Sections 8.12,
8.13, 8.14, 8.15, 8.16 and 8.17.
(f) Other Information. Such other information as the
Administrative Agent or any Lender may reasonably request from time to time.
7.2. Certificates; Other Information.
Furnish to the Administrative Agent and each Lender:
(a) Defaults Under Other Indebtedness. Prompt written
notice if: (i) any Indebtedness of the Borrower or any Subsidiary of the
Borrower is declared or shall become due and payable prior to its stated
maturity, or called and not paid when due, or (ii) a default that extends
beyond any applicable notice or grace period 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 of the Borrower 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,
$7,500,000 or more;
(b) Action of Governmental Authorities. Prompt written
notice of: (i) any citation, summons, subpoena, order to show cause or other
document naming the Borrower or any Subsidiary of the Borrower 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 Intellectual Property,
license, permit, franchise or other authorization issued to the Borrower or any
Subsidiary of the Borrower by any Person or Governmental Authority, which lapse
or termination could reasonably be expected to have a Material Adverse Effect;
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 refusal could reasonably be expected to have a
Material Adverse Effect;
(c) SEC or other Governmental Reports and Filings.
Promptly upon becoming available, copies of all regular, periodic or special
reports which the Borrower or any Subsidiary of the Borrower may now or
hereafter be required to file with or deliver to any securities exchange or the
Securities and Exchange Commission, or any other Governmental Authority
succeeding to the functions thereof, pursuant to the Securities Exchange Act of
1934, as amended.
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(d) ERISA Information. Promptly, and in any event within
ten Business 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, setting forth details with respect to such event or
condition and the action, if any, which the Borrower or an ERISA Affiliate
proposes to take with respect thereto; provided, however, that if such event or
condition is required to be reported or noticed to the PBGC, such statement,
together with a copy of the relevant report or notice to the PBGC, shall be
furnished promptly and in any event not later than ten days after it is
reported or noticed to the PBGC:
(i) any reportable event, as defined in Section
4043(b) of ERISA with respect to a Plan, as to which the PBGC has not
by regulation waived the requirement of Section 4043(a) of ERISA that
it be notified within thirty days of the occurrence of such event
(provided that a failure to meet the minimum funding standard of
Section 412 of the Code or of Section 302 of ERISA, including, without
limitation, the failure to make, on or before its due date, a required
installment under Section 412(m) of the Code or Section 302(e) of ERISA
or the disqualification of such Plan for purposes of Section 4043(b)(1)
of ERISA, shall be a reportable event regardless of the issuance of any
waivers in accordance with Section 412(d) of the Code) and any request
for a waiver under Section 412(d) of the Code for any Plan;
(ii) the distribution under Section 4041 of ERISA
of a notice of intent to terminate any Plan or any action taken by the
Borrower or any ERISA Affiliate to terminate any Plan;
(iii) the institution by the PBGC of proceedings
under Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Plan, or the receipt by the Borrower
or any ERISA Affiliate of a notice from a Multiemployer Plan that such
action has been taken by the PBGC with respect to such Multiemployer
Plan;
(iv) the complete or partial withdrawal from a
Multiemployer Plan by the Borrower or any ERISA Affiliate that results
in liability under Section 4201 or 4204 of ERISA (including the
obligation to satisfy secondary liability as a result of a purchaser
default) or the receipt of the Borrower or any ERISA Affiliate of
notice from a Multiemployer Plan that it is in reorganization or
insolvency pursuant to Section 4241 or 4245 of ERISA or that it
intends to terminate or has terminated under Section 4041A of ERISA;
(v) the institution of a proceeding by a
fiduciary of any Multiemployer Plan against the Borrower or any ERISA
Affiliate to enforce
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Section 515 of ERISA, which proceeding is not dismissed within 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
material 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) ERISA Reports. Promptly after the request of the
Administrative 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) Notice of Proposed Sales or Transfers. Quarterly, on
each date that a Compliance Certificate is to be delivered pursuant to Section
7.1(e), a list of all sales or transfers of any Unencumbered Assets (including
any agreements for the sale or transfer of any Unencumbered Asset entered into
during such fiscal quarter but not yet consummated); provided that, if during
any such fiscal quarter of the Borrower any sale or transfer of an Unencumbered
Asset, which combined with all other such sales or transfers of Unencumbered
Assets during such fiscal quarter, would exceed $100,000,000 in the aggregate,
then the Borrower shall promptly provide such list and a certification of the
Chief Financial Officer as to the Borrower's compliance with Sections 8.12 and
8.16;
(g) Casualties or Condemnations. Prompt written notice
of any casualty or condemnation of any Real Property, if such casualty or
condemnation could reasonably be expected to have a Material Adverse Effect;
(h) Environmental Law Notices. Prompt written notice of
any order, notice, claim or proceeding received by, or brought against, the
Borrower or any Subsidiary of the Borrower, or with respect to any of the Real
Property, under any Environmental Law, which could reasonably be expected to
have a Material Adverse Effect;
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(i) Management Letters and Reports. Promptly after the
same are received by the Borrower, copies of all management letters and similar
reports provided to the Borrower by the Accountants;
(j) New Subsidiaries. Notice of any Subsidiary that, as
of the end of any fiscal quarter of the Borrower, satisfies the criteria in
Section 7.11 with respect to Required Additional Guarantors, such notice to be
delivered to the Administrative Agent concurrently with the delivery of the
Compliance Certificate with respect to such quarter;
(k) Changes in Name or Fiscal Year. Prompt written
notice of (i) any change in the Borrower's name, with copies of all filings
with respect to such name change attached thereto, and (ii) any change in its
fiscal year from that in effect on the Effective Date;
(l) Defaults or Events of Default. Prompt written notice
if there shall occur and be continuing a Default or an Event of Default; and
(m) Other Information. Such other information as the
Administrative Agent or any Lender shall reasonably request from time to time.
7.3. Legal Existence.
(a) Borrower's Legal Existence. Maintain its status as a
Maryland corporation in good standing in the State of Maryland and in each
other jurisdiction in which the failure so to do could reasonably be expected
to have a Material Adverse Effect.
(b) Legal Existence of Subsidiaries. Cause each
Subsidiary of the Borrower to maintain its status as a real estate investment
trust, business trust, corporation, limited liability company or partnership,
as the case may be, in good standing in its state of formation and in each
other jurisdiction in which the failure so to do either (i) would result in the
occurrence of a Default, or (ii) could reasonably be expected to have a
Material Adverse Effect.
7.4. Taxes.
Pay and discharge when due, and cause each Subsidiary of the
Borrower 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, unless and to the extent only that such Taxes, assessments,
governmental charges, license fees and levies shall be contested in good faith
and by appropriate proceedings diligently conducted by the Borrower or such
Subsidiary and such contest has the effect of staying the collection of
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any Lien from any Property of the Borrower or its Subsidiaries arising from such
non-payment, and provided that the Borrower shall give the Administrative Agent
prompt notice of such contest and that such reserve or other appropriate
provision as shall be required in accordance with GAAP (as determined by the
Accountants) shall have been made therefor.
7.5. Insurance.
Maintain, and cause each Subsidiary of the Borrower 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 Administrative Agent within 10
Business Days after request therefor a detailed list of such insurance then in
effect, stating the names of the carriers thereof, the policy numbers, the
insureds thereunder, the amounts of insurance, dates of expiration thereof, and
the Property and risks covered thereby, together with a certificate of the
Chief Financial Officer certifying that in the opinion of such officer such
insurance complies with the obligations of the Borrower under this Section, and
is in full force and effect.
7.6. Payment of Indebtedness and Performance of Obligations.
Pay and discharge when due, and cause each Subsidiary of the
Borrower to pay and discharge, all lawful Indebtedness, obligations and claims
for labor, materials and supplies or otherwise which, if unpaid, (i) would
result in a Default, or (ii) could reasonably be expected to have a Material
Adverse Effect, unless (with respect to clause (ii)) such Indebtedness shall be
contested in good faith and by appropriate proceedings diligently conducted by
the Borrower or such Subsidiary and such contest has the effect of staying the
collection of any Lien from any Property of the Borrower or its Subsidiaries
arising from such non-payment, and provided that the Borrower shall give the
Administrative Agent prompt notice of such contest and that such reserve or
other appropriate provision as shall be required in accordance with GAAP (as
determined by the Accountants) shall have been made therefor.
7.7. Maintenance of Property; Environmental Investigations.
(a) 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 of the Borrower so to do, all
Property necessary to the operation of the Borrower's or such Subsidiary's
business.
(b) In the event that the Administrative 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
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aggregate could reasonably be expected to have a Material Adverse Effect,
promptly conduct and complete (at the Borrower's expense) all investigations,
studies, samplings and testings relative to such Hazardous Substances as the
Administrative Agent may reasonably request.
7.8. Observance of Legal Requirements.
(a) Observe and comply in all respects, and cause each
Subsidiary of the Borrower 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, except (i) where noncompliance with
any of the foregoing (individually or in the aggregate) could not reasonably be
expected to have a Material Adverse Effect, or (ii) such thereof as shall be
contested in good faith and by appropriate proceedings diligently conducted by
it and such contest has the effect of staying the collection of any Lien from
any Property of the Borrower or its Subsidiaries arising from such
noncompliance, and provided that the Borrower shall give the Administrative
Agent prompt notice of such contest and that such reserve or other appropriate
provision as shall be required in accordance with GAAP (as determined by the
Accountants) shall have been made therefor.
(b) Use and operate all of its facilities and property in
compliance with all Environmental Laws and cause each of its Subsidiaries so to
do, and keep all necessary permits, approvals, certificates, licenses and other
authorizations relating to environmental matters in effect and remain in
compliance therewith and cause each of its Subsidiaries so to do, and handle
all Hazardous Materials in compliance with all applicable Environmental Laws
and cause each of its Subsidiaries so to do, except where noncompliance with any
of the foregoing (individually or in the aggregate) could not reasonably be
expected to have a Material Adverse Effect.
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 Administrative 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.
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7.10. Licenses, Intellectual Property.
Maintain, and cause each Subsidiary of the Borrower to
maintain, in full force and effect, all material licenses, franchises,
Intellectual Property, permits, authorizations and other rights as are
necessary for the conduct of its business.
7.11. Required Additional Guarantors.
At any time after the date hereof, and with respect to any
Subsidiary of the Borrower, whether presently existing or hereafter formed or
acquired (other than Excel Realty Partners, L.P. and E. H. Properties, L.P.)
which is not a Subsidiary Guarantor at such time, cause such Subsidiary to
execute and deliver a Guaranty to the Administrative Agent, for the benefit of
the Lenders, promptly after the Administrative Agent's request therefor, duly
executed by such Subsidiary (together with the certificates and attachments
described in Section 5.1(b) and (c) with respect to such Subsidiary and an
opinion of counsel in the form required pursuant to Section 5.7(iii)) if at
such time such Subsidiary owns Property having a book value of $75,000,000 or
more. Notwithstanding the foregoing, the foregoing book value conditions of
this Section shall not be applicable from and after the occurrence of, and
during the continuance of, an Event of Default (it being understood that at
such time, the Administrative Agent can require any Subsidiary of the Borrower
which has not executed a Guaranty to immediately comply with requirements of
this Section).
7.12. REIT Status; Operation of Business.
(a) Maintain its status under Sections 856 et seq. of the
Code as a REIT.
(b) Carry on all business operations of the Borrower as a
self-advised, self-managed REIT.
(c) Manage, or cause one or more of its Subsidiaries at
all times to manage, at least 90% of all Properties of the Borrower and its
Subsidiaries.
7.13. Termination of Existing Credit Agreements.
On the Effective Date, the Borrower shall qualify for, and shall
request, a Loan for the purpose of paying all loans outstanding under the
Existing Credit Agreements, together with all interest, fees, breakage costs
and other amounts outstanding thereunder, and shall terminate any commitment,
or right to borrow, under the Existing Credit Agreements.
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8. NEGATIVE COVENANTS
The Borrower agrees that, so long as any Loan remains outstanding and
unpaid, there exists any LC exposure, any other amount is owing under any Loan
Document to any Lender or the Administrative Agent, or any Lender, the
Swingline Lender or the Issuing Bank shall have any obligation to make Loans or
Swingline Loans, or issue Letters of Credit, 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
of the Borrower so to do, except (i) Liens for Taxes, assessments or similar
charges incurred in the ordinary course of business which are not delinquent or
the existence of which do not otherwise violate the representations in Section
7.4, (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, use restrictions, exclusive
use limitations in any lease of Real Property, reciprocal easement agreements,
minor defects, irregularities, and other similar restrictions and encumbrances
affecting Real Property, which do not materially adversely affect the value of
such Real Property or the financial condition of the Borrower or such Subsidiary
of the Borrower or materially impair its use for the operation of the business
of the Borrower or such Subsidiary, (v) statutory Liens arising by operation of
law such as mechanics', materialmen's, carriers', warehousemen's liens incurred
in the ordinary course of business which are not delinquent or the existence of
which do not otherwise violate the representations in Section 7.6, (vi) Liens
arising out of judgments or decrees which are being contested in accordance with
Section 7.8 or the existence of which do not otherwise violate the
representations in Section 7.8 or result in a default pursuant to Section
9.1(j), (vii) mortgages on Real Property, provided that the existence of such
mortgages, and the indebtedness secured thereby, does not cause the Borrower to
be in violation of Section 8.12 or 8.16, (viii) Liens in favor of the Borrower
or any Subsidiary Guarantor, provided that the Indebtedness secured by any such
Lien is held by the Borrower or such Subsidiary Guarantor, (ix) the interests of
lessees and lessors under leases of real or personal property made in the
ordinary course of business which could not reasonably be expected (individually
or in the aggregate) to have a Material Adverse Effect and (x) Liens not
otherwise permitted by clauses (i) through (ix) of this Section which do not in
the aggregate exceed $5,000,000.
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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 (in one transaction or a series of transactions), or permit
any Subsidiary Guarantor of the Borrower so to do, or liquidate or dissolve,
except (i) the merger or consolidation of any Subsidiary Guarantor of the
Borrower into or with the Borrower, (ii) the merger or consolidation of any two
or more Subsidiary Guarantors, or (iii) the merger or consolidation of the
Borrower or Subsidiary Guarantor with any other Person, provided that (A) the
Borrower or such Subsidiary Guarantor is the surviving entity in such merger or
consolidation, (B) the total book value of the assets of the entity which is
merged into or consolidated with the Borrower or such Subsidiary Guarantor is
less than 20% of the total book value of the assets of the Borrower immediately
following such merger or consolidation, (C) immediately prior to such merger or
consolidation the Borrower shall have provided to the Administrative Agent and
each of the Lenders a Compliance Certificate prepared on a pro-forma basis (and
adjusted in the best good faith estimate of the Borrower, based on the advice of
the Accountants, to give effect to such merger or consolidation) demonstrating
that after giving effect to such merger or consolidation, no Default shall exist
with respect to any of the covenants set forth in Sections 8.12, 8.13, 8.14,
8.15, 8.16 and 8.17 and (D) after giving effect to such merger or consolidation,
no Event of Default shall exist.
(b) Sell, transfer, master lease or dispose of any of its
Property, either directly or indirectly, except that if at the time thereof and
immediately after giving effect thereto, no Default shall have occurred, (i)
any Subsidiary of the Borrower may sell, transfer, master lease or otherwise
dispose of its assets to the Borrower or to any other Subsidiary, and (ii) the
Borrower or any Subsidiary of the Borrower may sell Property in an arm's length
transaction (or, if the transaction involves an Affiliate of the Borrower or a
Subsidiary of the Borrower, if the transaction complies with Section 8.8) for
the fair market value thereof, as reasonably determined by the Borrower,
provided that such sale could not reasonably be expected to have a Material
Adverse Effect and provided further that for any fiscal year of the Borrower,
any sale, transfer, master lease or disposition of Property in reliance on this
clause (ii) which when combined with all other such sales, transfers, master
leases or dispositions made in such fiscal year shall not exceed 25% of the
total book value of all Property of the Borrower and its Subsidiaries
determined as of the first day of such fiscal year.
8.3. 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
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any Person, or permit any Subsidiary of the Borrower so to do, (all of which are
sometimes referred to herein as "Investments") except the following (to the
extent that maintaining any thereof would not at any time violate the
requirements of Section 856(c) of the Code):
(a) demand deposits, certificates of deposit, bankers
acceptances and domestic and eurodollar time deposits with any Lender, or any
other commercial bank, trust company or national banking association
incorporated under the laws of the United States or any State thereof and
having undivided capital, surplus and undivided profits exceeding $500,000,000
and a long term debt rating of A or A2, as determined, respectively, by S&P and
Moody's;
(b) short-term direct obligations of the United States of
America or agencies thereof whose obligations are guaranteed by the United
States of America;
(c) securities commonly known as "commercial paper"
issued by a corporation organized and existing under the laws of the United
States or any State thereof which at the time of purchase are rated by S&P or
Moody's at not less than "A1" or "P1," respectively;
(d) mortgage-backed securities guaranteed by the
Governmental 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 S&P or Moody's
at not less than "Aa" or "AA," respectively;
(e) repurchase agreements having a term not greater than
90 days and fully secured by securities described in the foregoing paragraph
(b) or (d) with banks described in the foregoing paragraph (a) or with
financial institutions or other corporations having total assets in excess of
$50,000,000;
(f) shares of "money market funds" registered with the
SEC under the Investment Company Act of 1940 which maintain a level per-share
value, invest principally in the investments described in one or more of the
foregoing paragraphs (a) through (e) and have total assets of in excess of
$50,000,000;
(g) Real Property and loans secured by mortgages on Real
Property;
(h) equity investments in any Person (other than
Subsidiaries) and notes receivable investments in any Person (other than
Subsidiaries), the aggregate principal amount of which (combined with any other
equity investments and notes receivable investments in any Person permitted
pursuant to this paragraph (h)) do not exceed 25% of the Total Capital of the
Borrower;
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(i) Investments (debt or equity) in Subsidiaries of the
Borrower;
(j) investments in respect of (1) equipment, inventory
and other tangible personal property acquired in the ordinary course of
business, (2) current trade and customer accounts receivable for services
rendered in the ordinary course of business, (3) advances to employees for
travel expenses other company-related expenses, and (4) prepaid expenses made
in the ordinary course of business;
(k) Hedging Agreements made in connection with any
Indebtedness;
(l) repurchases of any common or preferred stock or other
equity interests (or securities convertible into such interests) in the
Borrower or any Subsidiary that have been previously issued by the Borrower or
such Subsidiary, which do not exceed, in any calendar year, (1) 10% of the
outstanding shares of common or preferred stock or other equity interests in
Borrower or such Subsidiary, as applicable, as of the date hereof, plus (2) 10%
of any additional shares of common or preferred stock or other equity interests
in Borrower or such Subsidiary, as applicable, issued after the date hereof;
(m) redemptions of preferred stock of the Borrower in
accordance with the terms thereof;
(n) redemptions for cash or common Stock of the Borrower
of units of limited partner interests or limited liability company interests in
a DownREIT Partnership;
(o) loans to employees of the Borrower, provided that all
such loans in the aggregate do not at any time exceed $15,000,000 in the
aggregate; and
(p) any other Investments not included in paragraphs (a)
through (o) deemed appropriate by the Borrower, provided that in no event shall
Investments made in reliance upon the exception set forth in this paragraph (p)
exceed $50,000,000 at any one time;
8.4. Business Changes.
Change in any material respect the nature of the business of
the Borrower or its Subsidiaries as conducted on the Effective Date.
8.5. Amendments to Organizational Documents.
Amend or otherwise modify its corporate charter or by-laws in
any way (other than in connection with the issuance or classification of
preferred stock of the Borrower) which would adversely affect the interests of
the Administrative Agent and
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the Lenders under any of the Loan Documents, or permit any Subsidiary of the
Borrower to amend its organizational documents in a manner which could have the
same result.
8.6. Bankruptcy Proceedings.
Institute against the Administrative Agent, the
Co-Documentation Agents or any Lender, or join any other Person in instituting
against the Administrative Agent, the Co-Documentation Agents or any Lender,
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding or other proceeding under any federal or state bankruptcy or similar
law, for one year and a day after the payment or prepayment in full of the
Indebtedness due hereunder.
8.7. 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 of the Borrower so to do, except for sale
and leasing transactions described herein for which the combined selling price
of all Property subject to all such transactions does not exceed $50,000,000 in
the aggregate.
8.8. Transactions with Affiliates.
Become a party to any transaction in an amount that exceeds
$60,000 with an Affiliate unless the terms and conditions relating thereto (i)
have been approved by a majority of the disinterested directors of the
Borrower, (ii) have been approved by a majority of votes cast by the
stockholders of the Borrower, or (iii) are fair and reasonable to the Borrower,
or permit any Subsidiary of the Borrower so to do.
8.9. Issuance of Additional Capital Stock by Subsidiary Guarantors.
Permit any Subsidiary Guarantor to issue any additional Stock
or other equity interest of such Subsidiary Guarantor, other than the issuance
of partnership or limited liability company units in a DownREIT Partnership
which is a Subsidiary Guarantor, provided that such units are issued in
consideration of the contribution to the DownREIT Partnership of assets
qualifying as "real estate assets" under Section 856(c) of the Code.
8.10. Hedging Agreements
Enter into, or permit any of its Subsidiaries so to do, any
Hedging Agreement, other than Hedging Agreements entered into in the ordinary
course of business to hedge or mitigate interest rate risks to which the
Borrower or any Subsidiary
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of the Borrower is exposed in the conduct of its business or the management of
its liabilities.
8.11. Restricted Payments.
(a) Permit the Borrower to make Restricted Payments,
except that:
(i) except as set forth in clause (ii) below, the
Borrower may declare and pay dividends payable with respect to its
equity securities in any fiscal quarter of the Borrower if after
giving effect to such dividend, such dividend, when added to the
amount of all other such dividends paid in the same fiscal quarter and
the preceding three (3) fiscal quarters, would not exceed the greater
of (A) ninety percent (90%) of its Funds from Operations for the four
consecutive fiscal quarters ending prior to the quarter in which such
dividend is paid, or (B) the minimum amount of such dividends required
under the Code to enable the Borrower to continue to maintain its
status under the Code as a REIT, as evidenced (in the case of clause
(B)) by a certification of Chief Financial Officer containing
calculations in reasonable detail satisfactory in form and substance
to Administrative Agent;
(ii) if an Event of Default under Section 9.1(a)
or (b) has occurred and is continuing, the Borrower may declare and
pay dividends with respect to its equity securities which shall not
exceed the minimum such dividends required under the Code to enable
the Borrower to continue to maintain its status under the Code as a
REIT, as evidenced by a certification of Chief Financial Officer
containing calculations in reasonable detail satisfactory in form and
substance to Administrative Agent;
(iii) the Borrower may effect Stock repurchases to
the extent permitted by Section 8.3(l);
(iv) the Borrower may effect "cashless exercises"
of options granted under the Borrower's stock option plans;
(v) the Borrower may distribute rights or equity
securities under any rights plan adopted by the Borrower; and
(vi) the Borrower may declare and pay dividends
(or effect Stock splits or reverse Stock splits) with respect to its
equity securities payable solely in additional shares of its equity
securities.
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8.12. Unencumbered Assets Coverage Ratio.
Permit the Unencumbered Assets Coverage Ratio to be less than
2.0:1.0 at any time.
8.13. Fixed Charge Coverage Ratio.
Permit the Fixed Charge Coverage Ratio to be less than
1.75:1.0 at any time.
8.14. 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 the sum of (i)
$1,200,000,000, plus (ii) 80% of the aggregate net proceeds received by the
Borrower from and after the Effective Date, in connection with the issuance of
any capital stock of the Borrower.
8.15. Maximum Total Indebtedness.
Permit at any time either (i) all Consolidated Total
Indebtedness at such time to be more than 55% of Total Capital at such time, or
(ii) the Consolidated Total Indebtedness secured by mortgages on Real Property
owned by the Borrower and its Subsidiaries at such time to exceed 40% of Total
Capital at such time.
8.16. Liabilities to Assets Ratio.
Permit, at any time, the portion of the Consolidated Total
Indebtedness consisting of Consolidated unsecured Indebtedness of the Borrower
and its Subsidiaries at such time to be more than 50% of Unencumbered Asset
Value at such time.
8.17. Maximum Book Value of Ancillary Assets.
Permit the book value of the Ancillary Assets at any time to
be more than 20% of the book value of all assets of the Borrower and its
Subsidiaries on a Consolidated basis at such time. For purposes of this
Section 8.17 the book value of any Ancillary Asset not owned 100%, directly or
indirectly, by the Borrower or any of its Subsidiaries shall be adjusted by
multiplying the same by the Borrower's Interest in such Ancillary Asset during
the fiscal quarter of the Borrower ending as of any date of determination of
such book value.
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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, expenses or other charges 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 2.17; or
(d) The failure of the Borrower to observe or perform any
covenant or agreement contained in Section 7.3, 7.12(a), 7.12(b), or 8 (other
than Section 8.1, as to which the provisions of paragraph (e) below shall
apply); 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 notice thereof from the
Administrative Agent to the Borrower; 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 of the Borrower, whether as
principal, guarantor, surety or other obligor, for the payment of any
Indebtedness shall (i) become or shall be declared to be due and payable prior
to the expressed maturity thereof, or (ii) shall not be paid when due or within
any grace period for the payment thereof, or (iii) shall be subject, by the
holder of the obligation evidencing such Indebtedness, to acceleration (after
the expiration of any applicable notice and cure periods) prior to the
expressed maturity thereof, and the sum of all such Indebtedness which is the
subject of paragraphs (i) - (iii) inclusive exceeds (A) at any time, in the
case of Indebtedness other than Non-Recourse Indebtedness, $7,500,000, and (B)
in any calendar year, in the case of Non-Recourse Indebtedness, $50,000,000 in
the aggregate during such year; or
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(h) The Borrower or any Subsidiary Guarantor of the
Borrower 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, or
(xii) take any formal action for the purpose of effecting any of the foregoing;
or
(i) 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 Guarantor
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 Guarantor 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 Guarantor or of any
substantial part of the Property thereof, or (iv) ordering the winding up or
liquidation of the affairs of the Borrower or any Subsidiary Guarantor, and any
such decree or order continues unstayed and in effect for a period of 60 days;
or
(j) Judgments or decrees against the Borrower or any
Subsidiary of the Borrower aggregating in excess of $5,000,000 shall not be
paid, stayed on appeal, discharged, bonded or dismissed for a period of 45
days; or
(k) 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
(l) 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
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combination thereof which would constitute, in the reasonable opinion of the
Required Lenders, a Material Adverse Effect; or
(m) There shall occur a Change of Control; or
(n) If any Loan Document (i) is determined by any court
or Governmental Authority to be illegal, invalid or unenforceable in accordance
with its terms, or (ii) shall be canceled, terminated, revoked or rescinded
other than in accordance with its terms or with the written consent or approval
of the Lenders; or
(o) (i) Any Subsidiary Guarantor shall fail to comply in
any material respect with any covenant made by it in the Guaranty or if at any
time any representation or warranty made by any Subsidiary Guarantor in the
Guaranty or in any other document, statement or writing made to the Agent, the
Co-Documentation Agents, the Lead Arranger or the Lenders shall prove to have
been incorrect or misleading in any material respect when made, or (ii) if a
default by any Subsidiary Guarantor shall occur under the Guaranty after the
expiration of any applicable notice and grace period; or (iii) if any Subsidiary
Guarantor shall revoke or attempt to revoke, contest, commence any action or
raise any defense (other than the defense of payment) against its obligations
under the Guaranty; or
(p) There shall occur an Event of Default under and as
defined in the Other Credit Agreement.
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 (h) or (i) above, the 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 Administrative 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 Administrative Agent may, and upon the
direction of the Required Lenders shall, by notice to the Borrower, declare the
Commitments to be terminated forthwith, whereupon the Commitments shall
immediately terminate; and (ii) with the consent of the Required Lenders, the
Administrative 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 Administrative 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
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notices of any kind are hereby expressly waived. The Borrower hereby further
expressly waives and covenants not to assert any appraisement, valuation, stay,
extension, redemption or similar laws, now or at any time hereafter in force
which might delay, prevent or otherwise impede the performance or enforcement of
any Loan Document.
In the event that the 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 Administrative Agent and
the Lenders from or on behalf of the Borrower shall be applied by the
Administrative 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 Administrative Agent may have advanced on behalf
of any Lender for which the Administrative Agent has not then been reimbursed
by such Lender or the Borrower; (ii) second, to the payment of any fees or
expenses due the Administrative Agent from the Borrower; (iii) third, to
reimburse the Administrative 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 Administrative Agent, the Co-Documentation Agents, the Lead Arranger and
the Lenders under any Loan Document or other document or agreement entered into
in connection with the transactions contemplated thereby.
10. THE AGENT
10.1. Appointment.
Each Lender hereby irrevocably designates and appoints BNY as
the Administrative Agent of such Lender under the Loan Documents and each such
Lender hereby irrevocably authorizes BNY, as the Administrative 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 Administrative 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 Administrative 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 Administrative Agent.
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10.2. Delegation of Duties.
The Administrative 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 Administrative Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates shall be (i)
liable for any action lawfully taken or omitted to be taken by it or such
Person under or in connection with the Loan Documents (except for its own gross
negligence or willful misconduct), or (ii) responsible in any manner to any of
the Lenders for any recitals, statements, representations or warranties made by
the Borrower or any officer thereof contained in the Loan Documents or in any
certificate, report, statement or other document referred to or provided for
in, or received by the Administrative 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
Administrative 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 Administrative Agent
shall not be under any liability or responsibility whatsoever, as
Administrative 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 Administrative Agent.
The Administrative 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
reasonably 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 Administrative Agent.
The Administrative 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 Administrative Agent) and by the Person designated in such
written notice of transfer, in form and substance satisfactory to the
Administrative Agent, shall have been filed with the Administrative Agent. The
Administrative Agent shall not be under any duty to examine or pass upon the
validity,
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effectiveness or genuineness of the Loan Documents or any instrument, document
or communication furnished pursuant thereto or in connection therewith, and the
Administrative 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 Administrative 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 Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under the Loan Documents in accordance
with a request or direction of the Required Lenders, and such request or
direction and any action taken or failure to act pursuant thereto shall be
binding upon all the Lenders and all future holders of the Notes.
10.5. Notice of Default.
The Administrative Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default or Event of Default unless the
Administrative Agent has received written notice thereof from a Lender or the
Borrower. In the event that the Administrative Agent receives such a notice,
the Administrative Agent shall promptly give notice thereof to the Lenders.
The Administrative 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 Administrative Agent shall have
received such directions, the Administrative 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 Administrative Agent and Other Lenders.
Each Lender expressly acknowledges that neither the
Administrative Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates has made any representations or warranties to
it and that no act by the Administrative Agent hereinafter, including any
review of the affairs of the Borrower, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any Lender. Each
Lender represents to the Administrative Agent that it has, independently and
without reliance upon the Administrative 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 Administrative 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
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Borrower. Except for notices, reports and other documents expressly required to
be furnished to the Lenders by the Administrative Agent hereunder, the
Administrative 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 Administrative 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
Administrative Agent in its capacity as such (to the extent not promptly
reimbursed by the Borrower and without limiting the obligation of the Borrower
to do so), pro rata according to its Commitment, from and against any and all
liabilities, obligations, claims, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever
including, without limitation, any amounts paid to the Lenders (through the
Administrative 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 Administrative 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 Administrative 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
Administrative Agent. The agreements in this Section shall survive the payment
of all amounts payable under the Loan Documents.
10.8. Administrative Agent in Its Individual Capacity.
BNY and its 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 Administrative 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
Administrative Agent, and the terms "Lender" and "Lenders" shall in each case
include BNY.
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10.9. Successor Administrative Agent.
If at any time the Administrative Agent deems it advisable, in
its sole discretion, it may submit to each of the Lenders a written notice of
its resignation as Administrative Agent under this Agreement, such resignation
to be effective upon the earlier of (i) the written acceptance of the duties of
the Administrative Agent under the Loan Documents by a successor Administrative
Agent and (ii) on the 60th day after the date of such notice. Upon any such
notice of resignation, the Required Lenders shall have the right to appoint
from among the Lenders a successor Administrative Agent. If no successor
Administrative Agent shall have been so appointed by the Required Lenders and
accepted such appointment in writing within 45 days after the retiring
Administrative Agent's giving of notice of resignation, then the retiring
Administrative Agent shall, in consultation with the Borrower, appoint a
successor Administrative Agent on behalf of the Lenders prior to the end of the
60th day from such notice from among any of the Lenders who shall have at such
time a Commitment of at least $15,000,000 (an "Approved Successor"). If no
Lender has a Commitment of at least $15,000,000 (or no Lender whose Commitment
is at least $15,000,000 shall agree to accept such appointment), then the
retiring Administrative Agent shall, in consultation with the Borrower, appoint
any other Lender or any other 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 as a successor Administrative Agent. Any
appointment of a successor Administrative Agent shall be subject to the approval
of the Borrower, which approval shall not be unreasonably withheld or delayed,
and shall be given in any event prior to the end of the 60th day from the date
of the retiring Administrative Agent's notice of resignation, provided that
during any period in which either (i) a Competitive Bid Advance is outstanding,
or (ii) there exists and is continuing an Event of Default, no approval from the
Borrower to the appointment of an Approved Successor shall be required. Upon the
acceptance of an appointment as Administrative Agent hereunder by a successor
Administrative Agent and any required approval of such successor Administrative
Agent by the Borrower in accordance with the terms of this Section, such
successor Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent's rights, powers, privileges and
duties as Administrative Agent under the Loan Documents shall be terminated. The
Borrower and the Lenders shall execute such documents as shall be necessary to
effect such appointment. After any retiring Administrative Agent's resignation
hereunder as Administrative 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 Administrative Agent under the Loan Documents.
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10.10. Exculpation of Co-Documentation Agents.
Neither of the Co-Documentation Agents has any rights,
obligations, liabilities, responsibilities or duties under the Agreement other
than those applicable to all Lenders as such.
11. OTHER PROVISIONS.
11.1. Amendments and Waivers.
With the written consent of the Required Lenders, the
Administrative 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 Administrative 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
Administrative 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; (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", (v) amend the definition of "Applicable Facility Fee
Percentage" or "Applicable Margin," (vi) release any Subsidiary Guarantor from
its obligations under any Guaranty, or (vii) change the provisions of Section
2.11, 2.12, 2.13, 2.14, 2.15, 2.16, 2.17, 2.18, 3.1 or 11.1; and provided
further that no change of Section 2.8 may be effected without the consent of the
Swingline Lender, and no change of Section 2.9 may be effected without the
consent of the Issuing Bank; 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 Administrative Agent under the Loan
Documents without the written consent of the Administrative Agent; and provided
further that no such amendment, supplement, modification, waiver or consent
shall, unless in writing and signed by the Designating Lender on behalf of each
Designated Lender affected thereby, (a) subject such Designated Lender to any
additional obligations, (b) reduce the principal of, interest on, or other
amounts due with respect to, the Competitive Bid Borrowings made payable to such
Designated Lender, (c) postpone any date fixed for any payment of principal of,
or interest on, or other amounts due with respect to, Competitive Bid Borrowings
made payable to such Designated Lender, or (d) amend the definition of Required
Lenders
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hereunder in a manner which adversely affects the rights of such Designated
Lender. The Administrative Agent shall cause a copy of each written request for
such an amendment, supplement or modification delivered by the Borrower to it to
be delivered to each Lender. 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
Administrative Agent and all future holders of the Notes. In the case of any
waiver, the parties to the applicable agreement, the Lenders and the
Administrative Agent shall be restored to their former position and rights under
the Loan Documents, and any Default or Event of Default waived shall not extend
to any subsequent or other Default or Event of Default, or impair any right
consequent thereon.
11.2. Notices.
All notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing and, unless otherwise
expressly provided herein, shall be deemed to have been duly given or made when
delivered by hand, or if sent by certified mail (return receipt requested),
when the return receipt is signed on behalf of the party to whom such notice is
given, or in the case of telecopier notice, when sent, or if sent by overnight
nationwide commercial courier, the Business Day following the date such notice
is deposited with said courier, and in any case addressed as follows in the
case of the Borrower or the Administrative Agent, and at the Domestic Lending
Office in the case of each Lender, or to such other addresses as to which the
Administrative Agent may be hereafter notified by the respective parties hereto
or any future holders of the Notes:
The Borrower:
New Plan Excel Realty Trust, Inc.
1120 Avenue of the Americas
New York, New York 10036
Attention: Dean Bernstein,
Senior Vice President
Telephone: (212) 869-3000
Telecopy: (212) 869-3989
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with a copy to:
New Plan Excel Realty Trust, Inc.
1120 Avenue of the Americas
New York, New York 10036
Attention: Steven F. Siegel, Esq.,
General Counsel
Telephone: (212) 869-3000
Telecopy: (212) 302-4776
The Administrative Agent:
The Bank of New York
One Wall Street
Agency Function Administration
18th Floor
New York, New York 10286
Attention: Sandra Scaglione
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: Rick Laudisi
Vice President
Telephone: (212) 635-7621
Telecopy: (212) 809-9526,
except that any notice, request or demand by the Borrower to or upon the
Administrative Agent, the Swingline Lender, the Issuing Bank or the Lenders
pursuant to Section 2.3, 2.4, 2.8, 2.9 or 2.10 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
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Document preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges under the Loan Documents are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
11.4. Survival of Representations and Warranties.
All representations and warranties made under the Loan
Documents and in any document, certificate or statement delivered pursuant
hereto or in connection therewith shall survive the execution and delivery of
the Loan Documents. After the termination of this Agreement in accordance with
its terms, without any extension thereof, the payment in full of all obligations
of the Borrower under the Loan Documents and the expiration of any obligations
of the Borrower hereunder which survive the termination of this Agreement, the
Borrower shall have no liability to the Lenders under such representations and
warranties, except that the foregoing shall not apply with respect to any claim,
action or proceeding made or brought under any such representations or
warranties prior to such termination or payment.
11.5. Payment of Expenses and Taxes.
The Borrower agrees, promptly upon presentation of a statement
or invoice therefor, and whether any Loan is made (i) to pay or reimburse each
Credit Party for all of its out-of-pocket costs and expenses reasonably
incurred in connection with the development, preparation, negotiation 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
each Credit Party for all of its 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 (including, without limitation, any
costs incurred after the entry of judgment in an attempt to collect money due
in the judgment) 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 Credit Party 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
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Credit Party 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 from any
third party relating to this Agreement or the Loan Documents, including the
enforcement and performance of the Loan Documents and the use of the proceeds of
the Loans (all the foregoing, collectively, the "indemnified liabilities"),
whether or not any such indemnified person is a party to this Agreement or the
Loan Documents, and to reimburse each indemnified person for all legal and other
expenses incurred in connection with investigating or defending any indemnified
liabilities, and, if and to the extent that the foregoing indemnity may be
unenforceable for any reason, the Borrower agrees to make the maximum payment
permitted or not prohibited under applicable law; provided, however, that the
Borrower shall have no obligation hereunder to pay indemnified liabilities to
any Credit Party arising from (A) the gross negligence or willful misconduct of
such Credit Party or (B) disputes solely between the Credit Parties 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 shall not be payable by the
Borrower if (x) any such enforcement action brought by such Credit Party is
dismissed, with prejudice, on the pleadings or pursuant to a motion made by the
Borrower for summary judgment, and (y) if such Credit Party appeals such
dismissal, such dismissal is affirmed and the time for any further appeals has
expired. The obligations of the Borrower under this Section shall survive the
termination of this Agreement and the 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 Administrative 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 2.15, 2.16 or 2.18 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.
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11.7. Successors and Assigns.
(a) The Loan Documents shall be binding upon and inure to
the benefit of the Borrower, the Lenders, the Issuing Bank, the Administrative
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 Administrative Agent and all of the Lenders.
(b) Each Lender (other than a Designated Lender) shall
have the right at any time, upon written notice to the Administrative 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 (subject to
paragraph (c) below) 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, the Administrative Agent and the Swingline
Lender (which consent, from each of them, shall not be unreasonably withheld or
delayed and shall not be required from the Borrower upon the occurrence and
during the continuance of an Event of Default), to sell, assign, transfer or
negotiate all or any part of such Lender's rights and obligations under the
Loan Documents to any other bank, insurance company, pension fund, mutual fund
or other financial institution, provided that there shall be paid to the
Administrative Agent by the assigning Lender a fee (the "Assignment Fee") of
$3,500. A Designated Lender shall not assign any of its Loans to any Person at
any time, other than an assignment of all or part of such Loans to its
Designating Lender. Simultaneously with each assignment by a Lender of all or
any part of its and Revolving Credit Loans, such Lender shall assign, pursuant
to the terms of the Other Credit Agreement, an equal percentage of its
Commitment and Revolving Credit Loans under, and as defined in, the Other
Credit Agreement. For each assignment, the parties to such assignment shall
execute and deliver to the Administrative Agent for its acceptance and
recording an Assignment and Assumption Agreement. Upon such execution,
delivery, acceptance and recording by the Administrative Agent, from and after
the effective date specified in such Assignment and Assumption Agreement, the
assignee thereunder shall be a party hereto and, to the extent provided in such
Assignment and Assumption Agreement, the assignor Lender thereunder shall be
released from its obligations under the Loan Documents. The Borrower agrees upon
written request of the Administrative 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 Assumption 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
Assumption 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
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forth in Exhibit B shall be adjusted accordingly by the Administrative Agent and
a new Exhibit B shall be distributed by the Administrative Agent to the Borrower
and each Lender.
(c) Each Lender shall maintain an equal Commitment
Percentage in (i) all Revolving Credit Loans (other than Competitive Bid
Borrowings) and L/C Exposure hereunder, and (ii) all Revolving Credit Loans
(other than Competitive Bid Borrowings) and Term Loans under, and as defined
in, the Other Credit Agreement. Accordingly, each sale, assignment, transfer
or negotiation by a Lender of all or any part of its rights and/or obligations
under the Loan Documents shall include an equal pro rata share of its rights
and/or obligations under Loan Documents under, and as defined in, the Other
Credit Agreement.
(d) 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
Administrative 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 2.13, 2.14,
2.15, 2.16, and 2.18 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.
(e) If any (i) assignment is made pursuant to paragraph
(b) above or (ii) any participation granted pursuant to paragraph (d) above,
shall be made to any Person that is organized under the laws of any
jurisdiction other than the United States of America or any State thereof, such
Person shall furnish such certificates, documents or other evidence to the
Borrower and the Administrative 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 2.13(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
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payments to such Person are effectively connected with the conduct by such
Person of a trade or business in the United States.
(f) No Lender shall, as between and among the Borrower,
the Administrative 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 paragraph (b) above.
(g) 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. Designated Lender.
(a) Each Lender (each a "Designating Lender") may at any
time designate one or more Designated Lenders to fund Competitive Bid Advances
which the Designating Lender is required to fund subject to the terms of
Section 2.4. No Lender shall be entitled to make more than one such
designation. The parties to each such designation shall execute and deliver to
the Administrative Agent, for its acceptance, a Designation Agreement. Upon
its receipt of an appropriately completed Designation Agreement executed by a
Designating Lender and a designee representing that it is a Designated Lender,
the Administrative Agent will accept such Designation Agreement and give prompt
notice thereof to the Borrower, whereupon, from and after the effective date
specified in the Designation Agreement, the Designated Lender shall become a
party to this Agreement with a right to make Competitive Bid Advances on behalf
of its Designating Lender pursuant to Section 2.4 after the Borrower has
accepted an offer to make the Competitive Bid Advance (or a portion thereof)
from the Designating Lender. Each Designating Lender shall serve as the agent
of the Designated Lender and shall on behalf of the Designated Lender give and
receive all communications and notices and take all actions hereunder,
including without limitation votes, approvals, waivers, consents and amendments
under or relating to this Agreement or the other Loan Documents. Any such
notice, communication, vote approval, waiver, consent or amendment shall be
signed by the Designating Lender as agent for its Designated Lender. The
Borrower, the Administrative Agent and the Lenders may rely thereon without any
requirement that the Designated Lender sign or acknowledge the same.
(b) A Designated Lender shall not make or participate in
Revolving Credit Loans made as Conventional Advances or Term Loans of any
Designating Lender, nor shall any Designated Lender have a Commitment or share
in or be obligated under
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the Commitment of any Lender, it being understood that each Designated Lender
shall be entitled to make only Competitive Bid Advances offered by the
Designating Lender of such Designated Lender pursuant to Section 2.4(c), to the
extent the offer of such Competitive Bid Advances has been accepted by the
Borrower pursuant to Section 2.4(d).
11.9. 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 Administrative 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.
11.10. 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 participations in
LC Disbursements or Swingline Loans, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by
set-off, pursuant to events or proceedings of the nature referred to in Section
9.1 (h) or (i), or otherwise) in a greater proportion than any such payment to
and collateral received by any other Lender in respect of such other Lender's
Loans or participations in LC Disbursements or Swingline 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 participations in LC
Disbursements or Swingline 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 or participations in LC
Disbursements or Swingline 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.
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<PAGE> 105
(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 Administrative 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.
11.11. Lenders' Representations.
Each Lender represents to the Administrative Agent that, in
acquiring its Note, it is acquiring the same for its own account for the
purpose of investment and not with a view to selling the same in connection
with any distribution thereof, provided that the disposition of each Lender's
own Property shall at all times be and remain within its control.
11.12. Indemnity.
The Borrower agrees to indemnify and hold harmless each Credit
Party and its 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
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<PAGE> 106
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 2.17, 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 or not 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 willful misconduct of such Indemnified Person or arising
solely from claims between one such Indemnified Person and another such
Indemnified Person.
11.13. Governing Law.
The Loan Documents and the rights and obligations of the
parties thereunder shall be governed by, and construed and interpreted in
accordance with, the internal laws of the State of New York, without regard to
principles of conflict of laws.
11.14. Headings Descriptive.
Section headings have been inserted in the Loan Documents for
convenience only and shall not be construed to be a part thereof.
11.15. 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.
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<PAGE> 107
11.16. 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 Administrative Agent and the Lenders with respect to
the subject matter thereof and supersede all prior agreements and
understandings among the Borrower, the Administrative Agent and the Lenders
with respect to the subject matter thereof.
11.17. Consent to Jurisdiction.
The Borrower and each of the Credit Parties hereby irrevocably
submit 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 and each of the Credit Parties
hereby irrevocably waive, to the fullest extent permitted or not prohibited by
law, any objection which any of them 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.
11.18. Service of Process.
The Borrower hereby agrees that process may be served against
it in any suit, action or proceeding referred to in Section 11.17 by sending
the same by first class mail, return receipt requested or by overnight courier
service, to the address of the Borrower set forth in Section 11.2 or in the
applicable Loan Document executed by the Borrower. The Borrower hereby agrees
that any such service (i) shall be deemed in every respect effective service of
process upon it in any such suit, action, or proceeding, and (ii) shall to the
fullest extent enforceable by law, be taken and held to be valid personal
service upon and personal delivery to it.
11.19. 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 Administrative Agent
or any Lender to serve process in any manner permitted by law or limit the
right of the Administrative 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.
11.20. WAIVER OF TRIAL BY JURY.
THE ADMINISTRATIVE AGENT, THE CO-DOCUMENTATION AGENTS, THE
LENDERS AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE
ANY RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
ARISING
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<PAGE> 108
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 ADMINISTRATIVE AGENT, THE CO-DOCUMENTATION
AGENTS, THE LENDERS, OR COUNSEL TO THE ADMINISTRATIVE AGENT THE CO-DOCUMENTATION
AGENTS OR THE LENDERS, HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE
ADMINISTRATIVE AGENT, THE CO-DOCUMENTATION AGENTS 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 ADMINISTRATIVE AGENT, THE
CO-DOCUMENTATION AGENTS, AND THE LENDERS HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, INTER ALIA, THE PROVISIONS OF THIS SECTION.
11.21. 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, each Lender whose obligations under the Notes have
been fully paid shall promptly return to the Borrower its Note marked "paid" or
shall deliver other evidence that such Lender has received full payment of such
obligations.
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<PAGE> 109
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 EXCEL REALTY
TRUST, INC.
By: /s/ Dean Bernstein
------------------------
Dean Bernstein
Senior Vice President
THE BANK OF NEW YORK,
as Administrative Agent, Swingline Lender,
Issuing Bank and a Lender
By: /s/ Frederick Laudisi
-------------------------
Frederick Laudisi
Vice President
BANK ONE, NA
as Co-Documentation Agent
and a Lender
By: /s/ Patricia Leung
-------------------------
Name: Patricia Leung
Title: Senior Vice President
BANKBOSTON, N. A.
as Co-Documentation Agent
and a Lender
By: /s/ Daniel P. Stegemoeller
-------------------------
Name: Daniel P. Stegemoeller
Title: Vice President
<PAGE> 110
ARGENTARIA, CAJA POSTAL Y
BANCO HIPOTECARIO S.A.
By: /s/ Augusto Godoy
-------------------------
Name: Augusto Godoy
Title: General Manager
BANK OF AMERICA, N. A.
By: /s/ Thomas E. Schubert
-------------------------
Name:
Title:
CHANG HWA COMMERCIAL
BANK, LTD., NEW YORK BRANCH
By: /s/ Wan-Tu Yeh
-------------------------
Name: Wan-Tu Yeh
Title: VP & General Manager
ERSTE BANK
By: /s/ Paul Judicke
-------------------------
Name: Paul Judicke
Title: Vice President
By: /s/ John S. Runnion
-------------------------
Name: John S. Runnion
Title: First Vice President
ISRAEL DISCOUNT BANK OF
NEW YORK
By: /s/ Marc G. Cooper
-------------------------
Name: Marc G. Cooper
Title: Vice President
By: /s/ Chet Davis
-------------------------
Name: Chet Davis
Title: First Vice President
<PAGE> 111
PNC BANK, N. A.
By: /s/ Thomas Nastarowicz
------------------------------
Name: Thomas Nastarowicz
Title: Vice President
KEY BANK
By: /s/ KENNETH A. MCINTYRE, JR.
------------------------------
Name: Kenneth A. Mcintyre, Jr.
Title: Vice President
<PAGE> 1
EXHIBIT 10.16
FACILITY II
GUARANTY
GUARANTY (as the same may be amended, supplemented or
otherwise modified from time to time, this "GUARANTY"), dated as of November 17,
1999, by and among each of the Subsidiaries listed on Schedule I hereto
(collectively, the "SUBSIDIARY GUARANTORS"), and THE BANK OF NEW YORK, as
administrative agent (in such capacity, the "ADMINISTRATIVE AGENT") on behalf of
the Lenders under and as defined in the Credit Agreement (hereinafter defined).
RECITALS
I. Reference is made to the Credit Agreement, dated as of the
date hereof, by and among NEW PLAN EXCEL REALTY TRUST, INC., a Maryland
corporation (the "BORROWER"), the Lenders party thereto, the Administrative
Agent, BANK ONE, NA, as a Co-Documentation Agent, and BANKBOSTON, N.A., as a
Co-Documentation Agent (as the same may be amended, supplemented or otherwise
modified from time to time, the "CREDIT AGREEMENT").
II. The Administrative Agent, the Co-Documentation Agents and the
Lenders have made it a condition precedent to the effectiveness of the Credit
Agreement that each Subsidiary Guarantor execute and deliver this Guaranty.
III. Each Subsidiary Guarantor expects to derive substantial
benefit from the Credit Agreement and the transactions contemplated thereby and,
in furtherance thereof, has agreed to execute and deliver this Guaranty.
Therefore, in consideration of the Recitals, the terms and conditions
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each of the Subsidiary Guarantors,
the Borrower and the Administrative Agent hereby agree as follows:
1. DEFINED TERMS
(a) Capitalized terms used herein which are not otherwise
defined herein shall have the respective meanings ascribed thereto in the Credit
Agreement.
(b) When used in this Guaranty, the following capitalized
terms shall have the respective meanings ascribed thereto as follows:
"BORROWER OBLIGATIONS" means all present and future
obligations and liabilities, whether deemed principal, interest, additional
interest, fees, expenses or otherwise of the Borrower to the Administrative
Agent, the Co-Documentation Agents,
<PAGE> 2
the Swingline Lender, the Lenders and the Issuing Bank, including, without
limitation, all obligations under (i) the Credit Agreement, (ii) the Notes and
(iii) all other Loan Documents.
"GUARANTOR OBLIGATIONS" means, with respect to each
Subsidiary Guarantor, all of the obligations and liabilities of such Subsidiary
Guarantor hereunder, whether fixed, contingent, now existing or hereafter
arising, created, assumed, incurred or acquired.
2. GUARANTEE
(a) Subject to Section 2(b), each Subsidiary Guarantor hereby
absolutely, irrevocably and unconditionally guarantees the full and prompt
payment when due (whether at stated maturity, by acceleration or otherwise) of
the Borrower Obligations. The agreements of each Subsidiary Guarantor in this
Guaranty constitute a guarantee of payment, and no Credit Party shall have any
obligation to enforce any Loan Document or exercise any right or remedy with
respect to any collateral security thereunder by any action, including making or
perfecting any claim against any Person or any collateral security for any of
the Borrower Obligations prior to being entitled to the benefits of this
Guaranty. The Administrative Agent may, at its option, proceed against the
Subsidiary Guarantors, or any one or more of them, in the first instance, to
enforce the Guarantor Obligations without first proceeding against the Borrower
or any other Person, and without first resorting to any other rights or
remedies, as the Administrative Agent may deem advisable. In furtherance hereof,
if any Credit Party is prevented by law from collecting or otherwise hindered
from collecting or otherwise enforcing any Borrower Obligation in accordance
with its terms, such Credit Party shall be entitled to receive hereunder from
the Subsidiary Guarantors after demand therefor, the sums which would have been
otherwise due had such collection or enforcement not been prevented or hindered.
(b) Notwithstanding anything to the contrary contained herein,
the maximum aggregate amount of the obligations of each Subsidiary Guarantor
hereunder shall not, as of any date of determination, exceed the lesser of the
greatest amount that is valid and enforceable against such Subsidiary Guarantor
under principles of New York State contract law and the greatest amount that
would not render such Subsidiary Guarantor's liability hereunder subject to
avoidance as a fraudulent transfer or conveyance under Section 548 of Title 11
of the United States Code or any provisions of applicable state law
(collectively, the "FRAUDULENT TRANSFER LAWS"), in each case after giving effect
to all other liabilities of such Subsidiary Guarantor, contingent or otherwise,
that are relevant under the Fraudulent Transfer Laws (specifically excluding,
however, any liability (A) in respect of intercompany indebtedness to the
Borrower or any Affiliate or Subsidiary of the Borrower, to the extent that such
intercompany indebtedness would be discharged to the extent payment is made by
such Subsidiary
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<PAGE> 3
Guarantor hereunder, and (B) under any guarantee of (1) senior unsecured
indebtedness or (2) indebtedness subordinated in right of payment to any
Borrower Obligation, in either case which contains a limitation as to maximum
liability similar to that set forth in this Section 2(b) and pursuant to which
the liability of such Subsidiary Guarantor hereunder is included in the
liabilities taken into account in determining such maximum liability) and after
giving effect as assets to the value (as determined under the applicable
provisions of the Fraudulent Transfer Laws) of any rights to subrogation,
contribution, reimbursement, indemnity or similar rights of such Subsidiary
Guarantor pursuant to applicable law or any agreement providing for an equitable
allocation among such Subsidiary Guarantor and other Affiliates or Subsidiaries
of the Borrower of obligations arising under guarantees by such parties.
(c) Each Subsidiary Guarantor agrees that the Guarantor
Obligations may at any time and from time to time exceed the maximum aggregate
amount of the obligations of such Subsidiary Guarantor hereunder without
impairing this Guaranty or affecting the rights and remedies of any Credit Party
hereunder.
3. ABSOLUTE OBLIGATION
No Subsidiary Guarantor shall be released from liability
hereunder unless and until the Commitments and Swingline Commitment have
terminated and no Letters of Credit remain outstanding and either (i) the
Borrower shall have paid in full the outstanding principal balance of the Loans,
together with all accrued and unpaid interest thereon, and all other amounts
then due and owing under the Loan Documents, or (ii) the Guarantor Obligations
of such Subsidiary Guarantor shall have been paid in full in cash. Each
Subsidiary Guarantor acknowledges and agrees that (a) no Credit Party has made
any representation or warranty to such Subsidiary Guarantor with respect to the
Borrower, any of its Subsidiaries, any Loan Document, or any agreement,
instrument or document executed or delivered in connection therewith, or any
other matter whatsoever, and (b) such Subsidiary Guarantor shall be liable
hereunder, and such liability shall not be affected or impaired, irrespective of
(A) the validity or enforceability of any Loan Document, or any agreement,
instrument or document executed or delivered in connection therewith, or the
collectability of any of the Borrower Obligations, (B) the preference or
priority ranking with respect to any of the Borrower Obligations, (C) the
existence, validity, enforceability or perfection of any security interest or
collateral security under any Loan Document, or the release, exchange,
substitution or loss or impairment of any such security interest or collateral
security, (D) any failure, delay, neglect or omission by any Credit Party to
realize upon or protect any direct or indirect collateral security,
indebtedness, liability or obligation, any Loan Document, or any agreement,
instrument or document executed or delivered in connection therewith, or any of
the Borrower Obligations, (E) the existence or exercise of any right of set-off
by any Credit Party, (F) the existence, validity or
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<PAGE> 4
enforceability of any other guarantee with respect to any of the Borrower
Obligations, the liability of any other Person in respect of any of the Borrower
Obligations, or the release of any such Person or any other guarantor of any of
the Borrower Obligations, (G) any act or omission of any Credit Party in
connection with the administration of any Loan Document or any of the Borrower
Obligations, (H) the bankruptcy, insolvency, reorganization or receivership of,
or any other proceeding for the relief of debtors commenced by or against, any
Person, (I) the disaffirmance or rejection, or the purported disaffirmance or
purported rejection, of any of the Borrower Obligations, any Loan Document, or
any agreement, instrument or document executed or delivered in connection
therewith, in any bankruptcy, insolvency, reorganization or receivership, or any
other proceeding for the relief of debtor, relating to any Person, (J) any law,
regulation or decree now or hereafter in effect which might in any manner affect
any of the terms or provisions of any Loan Document, or any agreement,
instrument or document executed or delivered in connection therewith or any of
the Borrower Obligations, or which might cause or permit to be invoked any
alteration in the time, amount, manner or payment or performance of any of the
Borrower's obligations and liabilities (including the Borrower Obligations), (K)
the merger or consolidation of the Borrower into or with any Person, (L) the
sale by the Borrower of all or any part of its assets, (M) the fact that at any
time and from time to time none of the Borrower Obligations may be outstanding
or owing to any Credit Party, (N) any amendment or modification of, or
supplement to, any Loan Document, or (O) any other reason or circumstance which
might otherwise constitute a defense available to or a discharge of the Borrower
in respect of its obligations or liabilities (including the Borrower
Obligations) or of such Subsidiary Guarantor in respect of any of the Guarantor
Obligations (other than by the performance in full thereof).
4. REPRESENTATIONS AND WARRANTIES
Each of the Subsidiary Guarantors represents and warrants as
to itself that all representations and warranties relating to it contained in
the Credit Agreement are true and correct.
5. NOTICES
Except as otherwise specifically provided herein, all notices,
requests, consents, demands, waivers and other communications hereunder shall be
in writing (including facsimile) and shall be given in the manner set forth in
Section 11.2 of the Credit Agreement (i) in the case of the Administrative
Agent, to the address set forth in Section 11.2 of the Credit Agreement, (ii) in
the case of a Subsidiary Guarantor, to the address set forth in Schedule I
hereto, or (iii) in the case of each party hereto, to such other addresses as to
which the Administrative Agent may be hereafter notified by the respective
parties hereto.
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<PAGE> 5
6. EXPENSES
Each Subsidiary Guarantor agrees that it shall, promptly after
demand, pay to the Administrative Agent any and all reasonable out-of-pocket
sums, costs and expenses, which any Credit Party may pay or incur defending,
protecting or enforcing this Guaranty (whether suit is instituted or not),
reasonable attorneys' fees and disbursements. All sums, costs and expenses which
are due and payable pursuant to this Section shall bear interest, payable on
demand, at the highest rate then payable on the Borrower Obligations.
7. REPAYMENT IN BANKRUPTCY, ETC.
If, at any time or times subsequent to the payment of all or
any part of the Borrower Obligations or the Guarantor Obligations, any Credit
Party shall be required to repay any amounts previously paid by or on behalf of
the Borrower or any Subsidiary Guarantor in reduction thereof by virtue of an
order of any court having jurisdiction in the premises, including as a result of
an adjudication that such amounts constituted preferential payments or
fraudulent conveyances, the Subsidiary Guarantors unconditionally agree to pay
to the Administrative Agent, within 10 days after demand, a sum in cash equal to
the amount of such repayment, together with interest on such amount from the
date of such repayment by such Credit Party to the date of payment to the
Administrative Agent at the applicable after-maturity rate set forth in the
Credit Agreement.
8. MISCELLANEOUS
(a) Except as otherwise expressly provided in this Guaranty,
each Subsidiary Guarantor hereby waives presentment, demand for payment, notice
of default, nonperformance and dishonor, protest and notice of protest of or in
respect of this Guaranty, the other Loan Documents and the Borrower Obligations,
notice of acceptance of this Guaranty and reliance hereupon by any Credit Party,
and the incurrence of any of the Borrower Obligations, notice of any sale of
collateral security or any default of any sort.
(b) No Subsidiary Guarantor is relying upon any Credit Party
to provide to such Subsidiary Guarantor any information concerning the Borrower
or any of its Subsidiaries, and each Subsidiary Guarantor has made arrangements
satisfactory to such Subsidiary Guarantor to obtain from the Borrower on a
continuing basis such information concerning the Borrower and its Subsidiaries
as such Subsidiary Guarantor may desire.
(c) Each Subsidiary Guarantor agrees that any statement of
account with respect to the Borrower Obligations from any Credit Party to the
Borrower which binds
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<PAGE> 6
the Borrower shall also be binding upon such Subsidiary Guarantor, and that
copies of said statements of account maintained in the regular course of or such
Credit Party's business may be used in evidence against such Subsidiary
Guarantor in order to establish its Guarantor Obligations.
(d) Each Subsidiary Guarantor acknowledges that it has
received a copy of the Loan Documents and has approved of the same. In addition,
each Subsidiary Guarantor acknowledges having read each Loan Document and having
had the advice of counsel in connection with all matters concerning its
execution and delivery of this Guaranty.
(e) This Guaranty shall be binding upon each Subsidiary
Guarantor and its successors and insure to the benefit of, and be enforceable by
the Administrative Agent, Lenders and their respective successors, transferees
and assigns. No Subsidiary Guarantor may assign any right, or delegate any duty,
it may have under this Guaranty.
(f) Subject to the limitations set forth in Section 2(b), the
Guarantor Obligations shall be joint and several.
(g) This Guaranty is the "Guaranty" referred to in the Credit
Agreement, and is subject to, and should be construed in accordance with, the
provisions thereof. Each of the parties hereto acknowledges and agrees that the
following are made applicable to this Guaranty and all such provisions are
incorporated by reference herein as if fully set forth herein, including
Sections 1 (Definitions), 2.13 (Taxes; Net Payments), 11.1 (Amendments and
Waivers), 11.3 (No Waiver; Cumulative Remedies), 11.5 (Payment of Expenses and
Taxes), 11.7 (Successors and Assigns), 11.9 (Counterparts), 11.12 (Indemnity),
11.13 (Governing Law), 11.14 (Headings Descriptive), 11.15 (Severability), 11.16
(Integration), 11.17 (Consent to Jurisdiction), 11.18 (Service of Process),
11.19 (No Limitation on Service or Suit) and 11.20 (WAIVER OF TRIAL BY JURY).
(h) Each Subsidiary Guarantor agrees that (i) the execution
and delivery of a Guaranty by any Required Additional Guarantor after the date
hereof shall not affect the obligations of the Subsidiary Guarantors hereunder,
and (ii) the Subsidiary Guarantors and each such Required Additional Guarantor
shall, subject to Section 2(b), be jointly and severally liable for all of the
Borrower Obligations.
(i) With respect to New Plan Realty Trust, this Guaranty has
been negotiated, executed and delivered on behalf of the undersigned by the
trustees or officers thereof in their representative capacity under the
Declaration of Trust, and not individually, and bind only the trust estate of
the undersigned, and no trustee, officer, employee, agent or shareholder of the
undersigned shall be bound or held to any personal liability or responsibility
in connection with the agreements, obligations and
- 6 -
<PAGE> 7
undertakings of the undersigned hereunder, and any person or entity dealing with
the undersigned 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 Administrative Agent and each Lender hereby
acknowledge and agree that each agreement and other document executed by the
undersigned 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.
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<PAGE> 8
FACILITY II
IN EVIDENCE of the agreement by the parties hereto to the terms and
conditions herein contained, each such party has caused this Subsidiary
Guarantee to be duly executed on its behalf.
NEW PLAN REALTY TRUST
By: /s/ Dean Bernstein
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
EXCEL REALTY TRUST - ST, INC.
By: /s/ Dean Bernstein
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
THE BANK OF NEW YORK, as
Administrative Agent
By: /s/ Frederick Laudisi
----------------------------------
Name: Frederick Laudisi
----------------------------------
Title: Vice President
----------------------------------
<PAGE> 9
FACILITY II
SCHEDULE I
TO SUBSIDIARY GUARANTY
SUBSIDIARY GUARANTORS
UNDER GUARANTY DATED AS OF NOVEMBER 17, 1999
<TABLE>
<CAPTION>
Jurisdiction of Incorporation or Address for
Name Formation Notices
- ------------ -------------------------------- --------------------------------
<S> <C> <C>
New Plan Massachusetts 1120 Avenue of the Americas
Realty Trust New York, New York 10036
Attention: Dean Bernstein
Telephone: (212) 869-3000
Telecopy: (212) 869-3989
Excel Realty Delaware 1120 Avenue of the Americas
Trust - ST, Inc. New York, New York 10036
Attention: Dean Bernstein
Telephone: (212) 869-3000
Telecopy: (212) 869-3989
</TABLE>
<PAGE> 1
EXHIBIT 10.36
EMPLOYMENT AGREEMENT
AGREEMENT, dated as of September 25, 1998, by and between
Excel Realty Trust, Inc., a Maryland corporation (the "Company"), and James
DeCicco ("Executive").
RECITALS
A. Executive is currently Senior Vice President-Leasing 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
Senior Vice President-Leasing, 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
<PAGE> 2
to New Plan shall not be accelerated as a result of this Agreement or any action
taken in accordance with the terms thereof.
3. Position and Duties. During the Employment Period, Executive
shall serve as Senior Vice President-Leasing of the Company. Executive shall
have those powers and duties normally associated with the position of a Senior
Vice President 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 $175,000 ("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
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<PAGE> 3
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.
(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:
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<PAGE> 4
(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
(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
- 4 -
<PAGE> 5
(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 the Company without
Cause;
(ii) the assignment to Executive of duties materially
and adversely inconsistent with Executive's status as a Senior Vice
President 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;
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<PAGE> 6
(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 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
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<PAGE> 7
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
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<PAGE> 8
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;
(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
- 8 -
<PAGE> 9
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 Section 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.
- 9 -
<PAGE> 10
(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.
- 10 -
<PAGE> 11
(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. 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
- 11 -
<PAGE> 12
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) 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
- 12 -
<PAGE> 13
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, 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
- 13 -
<PAGE> 14
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.
(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
- 14 -
<PAGE> 15
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
- 15 -
<PAGE> 16
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 DeCicco
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
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
- 16 -
<PAGE> 17
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 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.
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<PAGE> 18
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 DeCicco
-----------------------------------------
James DeCicco
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<PAGE> 1
EXHIBIT 10.39
New York, New York
January 28, 2000
GUARANTY OF PAYMENT
FOR VALUE RECEIVED, and to induce LEHMAN ALI, INC., a Delaware
corporation, having an address at Three World Financial Center, 200 Vesey
Street, New York, New York 10285 ("Lender"), to lend to POINTE ORLANDO
DEVELOPMENT COMPANY, a California general partnership ("Borrower"), the
principal sum of SEVENTY-EIGHT MILLION FOUR HUNDRED SEVENTY-FOUR THOUSAND SEVEN
HUNDRED TWENTY-FOUR AND 90/100 DOLLARS ($78,474,724.90) (the "Loan"), evidenced
by the Note (as defined in the Loan Agreement (hereinafter defined)) and secured
by the Security Instrument (as defined in the Loan Agreement), and by other
documents executed in connection therewith (the "Other Security Documents"). The
term "Loan Agreement", as used herein, shall mean, that certain amended and
restated the Original Loan Agreement pursuant to that certain Second Amended and
Restated Construction Loan Agreement dated April 20, 1998, as amended.
The undersigned, NEW PLAN EXCEL REALTY TRUST, INC. having an
address at 1120 Avenue of the Americas, New York, New York 10036 ("Guarantor")
hereby absolutely and unconditionally guarantees to Lender the prompt and
unconditional payment of the Guaranteed Obligations (hereinafter defined). The
term "Guaranteed Obligations", as used herein, shall mean a portion of the
outstanding amount of the Debt (hereinafter defined) in excess of
$48,474,724.90, provided, however, the Guaranteed Obligations shall not be
reduced by any payment by the title insurance company resulting from a claim by
Lender in connection with the existing mechanic's liens or mechanic's liens
filed against the Property in connection with Building 5 which are not bonded
and released of record.
It is expressly understood and agreed that this is a
continuing guaranty and that the obligations of Guarantor hereunder are and
shall be absolute under any and all circumstances, without regard to the
validity, regularity or enforceability of the Note, the Security Instrument, or
the Other Security Documents, a true copy of each of said documents Guarantor
hereby acknowledges having received and reviewed.
Any indebtedness of borrower to Guarantor now or hereafter
existing (including, but not limited to, any rights to subrogation Guarantor may
have as a result of any payment by Guarantor under this Guaranty), together with
any interest thereon, shall be, and such indebtedness is, hereby deferred,
postponed and subordinated to the prior payment in full of the Guaranteed
Obligations. Until payment in full of the Guaranteed Obligations (and including
interest accruing thereon after the commencement of a proceeding by or against
Borrower under the Bankruptcy Reform Act of 1978, as amended, 11 U.S.C. Sections
101 et seq., and the regulations adopted and promulgated pursuant thereto
(collectively, the "Bankruptcy Code") which interest the parties agree shall
remain a claim that is prior and superior to any claim of Guarantor
notwithstanding any contrary practice, custom or ruling in cases under the
Bankruptcy Code generally), Guarantor agrees not to accept any payment or
satisfaction of any kind of indebtedness of Borrower to Guarantor (provided,
however, provided no Event of Default has occurred and is continuing, the
foregoing shall not prohibit Borrower from making partnership distributions in
the ordinary course of business) and hereby assigns such indebtedness to Lender,
including the right to file proof of claim and to vote thereon in connection
with any such proceeding under the Bankruptcy Code, including the right to vote
on any plan of reorganization.
Guarantor agrees that, with or without notice or demand,
Guarantor will reimburse Lender, to the extent that such reimbursement is not
made by Borrower, for all expenses (including
<PAGE> 2
reasonable counsel fees) incurred by Lender in connection with the collection of
the Guaranteed Obligations or any portion thereof or with the enforcement of
this Guaranty.
All moneys available to Lender for application in payment or
reduction of the Guaranteed Obligations shall be applied by Lender in such
manner and in such amounts and at such time or times and in such order and,
priority as Lender may see fit to the payment or reduction of such portion of
the Guaranteed Obligations as Lender may elect.
Guarantor hereby waives notice of the acceptance hereof,
presentment, demand for payment, protest, notice of protest, or any and all
notice of non-payment, non-performance or non-observance, or other proof, or
notice or demand.
Guarantor further agrees that the validity of this Guaranty
and the obligations of Guarantor hereunder shall in no way be terminated,
affected or impaired (i) by reason of the assertion by Lender of any rights or
remedies which it may have under or with respect to either the Note, the
Security Instrument, or the Other Security Documents, against any person
obligated thereunder or against the owner of the premises covered by the
Security Instrument, or (ii) by reason of any failure to file or record any of
such instruments or to take or perfect any security intended to be provided
thereby, or (iii) by reason of the release or exchange of any property covered
by the Security Instrument or other collateral for the Loan, or (iv) by reason
of Lender's failure to exercise, or delay in exercising, any such right or
remedy or any right or remedy Lender may have hereunder or in respect to this
Guaranty, or (v) by reason of the commencement of a case under the Bankruptcy
Code by or against any person obligated under the Note, the Security Instrument
or the Other Security Documents, or the death of any Guarantor, or (vi) by
reason of any payment made on the Debt or any other indebtedness arising under
the Note, the Security Instrument or the Other Security Documents, whether made
by Borrower or Guarantor or any other person, which is required to be refunded
pursuant to any bankruptcy or insolvency law; it being understood that no
payment so refunded shall be considered as a payment of any portion of the
Guaranteed Obligations, nor shall it have the effect of reducing the liability
of Guarantor hereunder. It is further understood, that if Borrower shall have
taken advantage of, or be subject to the protection of, any provision in the
Bankruptcy Code, the effect of which is to prevent or delay Lender from
declaring the Debt (as defined in the Loan Agreement) due and payable on the
happening of any default or event by which under the terms of the Note, the
Security Instrument or the Other Security Documents, the Debt shall become due
and payable, Lender may, as against Guarantor, nevertheless, declare the
Guaranteed Obligations due and payable and enforce any or all of its rights and
remedies against Guarantor provided for herein.
Guarantor further covenants that this Guaranty shall remain
and continue in full force and effect as to any modification, extension or
renewal of the Note, the Security Instrument, or any of the Other Security
Documents, that Lender shall not be under a duty to protect, secure or insure
any security or lien provided by the Security Instrument or other such
collateral, and that other indulgences or forbearance may be granted under any
or all of such documents, all of which may be made, done or suffered without
notice to, or further consent of, Guarantor.
As a further inducement to Lender to make the Loan and in
consideration thereof. Guarantor further covenants and agrees (i) that in any
action or proceeding brought by Lender against Guarantor on this Guaranty,
Guarantor shall and does hereby waive trial by jury, (ii) that the Supreme Court
of the State of New York for the County of New York, or, in a case involving
diversity of citizenship, the United States District Court for the Southern
District of New York, shall have jurisdiction of any such action or proceeding,
and (iii) that within thirty days after service of any summons and complaint or
other process in any such action or proceeding, Guarantor so served shall appear
or answer to any summons and complaint or other process and should Guarantor so
served fail to appear or answer
<PAGE> 3
within said thirty-day period, said Guarantor shall be deemed in default and
judgment may be entered by Lender against the said party for the amount as
demanded in any summons and complaint or other process so served.
This is a guaranty of payment and not of collection and upon
any default of Borrower under the Note, the Security Instrument or the Other
Security Documents, Lender may, at its option, proceed directly and at once,
without notice, against Guarantor to collect and recover the full amount of the
liability hereunder or any portion thereof, without proceeding against Borrower
or any other person, or foreclosing upon, selling, or otherwise disposing of or
collecting or applying against any of the mortgaged property or other collateral
for the Loan. Guarantor hereby waives the pleading of any statute of limitations
as a defense to the obligation hereunder.
Each reference herein to Lender shall be deemed to include its
successors and assigns, to whose favor the provisions of this Guaranty shall
also inure. Each reference herein to Guarantor shall be deemed to include the
heirs, executors, administrators, legal representatives, successors and assigns
of Guarantor, all of whom shall be bound by the provisions of this Guaranty.
Guarantor (and its representative, executing below, if any)
has full power, authority and legal right to execute this Guaranty and to
perform all its obligations under this Guaranty.
All understandings, representations and agreements heretofore
had with respect to this Guaranty are merged into this Guaranty which alone
fully and completely expresses the agreement of Guarantor and Lender.
This Guaranty may be executed in one or more counterparts by
some or all of the parties hereto, each of which counterparts shall be an
original and all of which together shall constitute a single agreement of
Guaranty. The failure of any party hereto to execute this Guaranty, or any
counterpart hereof, shall not relieve the other signatories from their
obligations hereunder.
This Guaranty may not be modified, amended, waived, extended,
changed, discharged or terminated orally or by any act or failure to act on the
part of Lender or Borrower, but only by an agreement in writing signed by the
party against whom enforcement of any modification, amendment, waiver,
extension, change, discharge or termination is sought.
This Guaranty shall be governed, construed and interpreted as
to validity, enforcement and in all other respects, in accordance with the laws
of the State of New York.
IN WITNESS WHEREOF, Guarantor has duly executed this Guaranty
as of the date first above set forth.
NEW PLAN EXCEL REALTY TRUST, INC.
By: /s/ Dean Bersstien
--------------------------------------
Name: Dean Bernstein
Title: Senior Vice President
<PAGE> 1
EXHIBIT 10.41
TERM LOAN AGREEMENT
by and among
NEW PLAN EXCEL REALTY TRUST, INC.
THE LENDERS PARTY HERETO,
AND
FLEET NATIONAL BANK
as Administrative Agent
Dated as of March 7, 2000
FLEET BOSTON ROBERTSON STEPHENS, INC.
as Sole Lead Arranger
and Bookrunner
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
1. DEFINITIONS 1
1.1 Defined Terms 1
1.2 Other Definitional Provisions 19
2. AMOUNT AND TERMS OF LOANS 19
2.1 Loans 19
2.2 Notes 21
2.3 Procedure for Loan Borrowings 21
2.4 [Intentionally Omitted] 23
2.5 Termination or Reduction of Commitments 23
2.6 Repayment of Loans; Evidence of Debt 23
2.7 Prepayments of the Loans 24
2.8 Conversions 24
2.9 Interest Rate and Payment Dates 25
2.10 Substituted Interest Rate 27
2.11 Taxes; Net Payments 27
2.12 Illegality 28
2.13 Increased Costs 28
2.14 Indemnification for Break Funding Losses 30
2.15 Use of Proceeds 31
2.16 Capital Adequacy 31
2.17 Administrative Agent's Records 32
2.18 [Intentionally Omitted] 32
3. FEES; PAYMENTS 32
3.1 Facility Fee 32
3.2 Payments; Application of Payments 32
4. REPRESENTATIONS AND WARRANTIES 33
4.1 Existence and Power 33
4.2 Authority 33
4.3 Binding Agreement 34
4.4 Subsidiaries; DownREIT Partnerships 34
4.5 Litigation 34
4.6 Required Consents 35
4.7 No Conflicting Agreements 35
4.8 Compliance with Applicable Laws 35
4.9 Taxes 35
4.10 Governmental Regulations 36
4.11 Federal Reserve Regulations; Use of Loan Proceeds 36
4.12 Plans; Multiemployer Plans 36
</TABLE>
2
<PAGE> 3
<TABLE>
<S> <C> <C>
4.13 Financial Statements 36
4.14 Property 37
4.15 Franchises, Intellectual Property, Etc 37
4.16 Environmental Matters 37
4.17 Labor Relations 39
4.18 Burdensome Obligations 39
4.19 Solvency 39
4.20 REIT Status 40
4.21 Rent Roll and List of Unencumbered Assets 40
4.22 [Intentionally Omitted] 40
4.23 Operation of Business 40
4.24 No Misrepresentation 40
5. CONDITIONS TO FIRST LOANS 40
5.1 Evidence of Action 40
5.2 This Agreement 41
5.3 Notes 41
5.4 Guaranty 41
5.5 [Intentionally Omitted] 42
5.6 Litigation 42
5.7 Opinion of Counsel to the Borrower 42
5.8 Fees 42
5.9 Fees and Expenses of Special Counsel 42
5.10 [Intentionally Omitted] 42
6. CONDITIONS OF LENDING - ALL LOANS 42
6.1 Compliance 42
6.2 Loan Closings 43
6.3 Borrowing Request 43
6.4 Documentation and Proceedings 43
6.5 Required Acts and Conditions 43
6.6 Approval of Special Counsel 43
6.7 Supplemental Opinions 44
6.8 Other Documents 44
7. AFFIRMATIVE COVENANTS 44
7.1 Financial Statements 44
7.2 Certificates; Other Information 45
7.3 Legal Existence 48
7.4 Taxes 49
7.5 Insurance 49
7.6 Payment of Indebtedness and Performance of Obligations 49
7.7 Maintenance of Property; Environmental Investigations 50
7.8 Observance of Legal Requirements 50
7.9 Inspection of Property; Books and Records; Discussions 51
</TABLE>
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<TABLE>
<S> <C> <C>
7.10 Licenses, Intellectual Property 51
7.11 Required Additional Guarantors 51
7.12 REIT Status; Operation of Business 51
7.13 [Intentionally Omitted] 52
8. NEGATIVE COVENANTS 52
8.1 Liens 52
8.2 Merger, Consolidation and Certain Dispositions of Property 52
8.3 Investments, Loans, Etc 53
8.4 Business Changes 55
8.5 Amendments to Organizational Documents 55
8.6 Bankruptcy Proceedings 55
8.7 Sale and Leaseback 56
8.8 Transactions with Affiliates 56
8.9 Issuance of Additional Capital Stock by Subsidiary Guarantors 56
8.10 Hedging Agreements 56
8.11 Restricted Payments 56
8.12 Unencumbered Assets Coverage Ratio 57
8.13 Fixed Charge Coverage Ratio 57
8.14 Minimum Tangible Net Worth 57
8.15 Maximum Total Indebtedness 58
8.16 Liabilities to Assets Ratio 58
8.17 Maximum Book Value of Ancillary Assets 58
9. DEFAULT 58
9.1 Events of Default 58
10.1 Appointment 61
10.2 Delegation of Duties 62
10.3 Exculpatory Provisions 62
10.4 Reliance by Administrative Agent 62
10.5 Notice of Default 62
10.6 Non-Reliance on Administrative Agent and Other Lenders 63
10.7 Indemnification 63
10.8 Administrative Agent in Its Individual Capacity 64
10.9 Successor Administrative Agent 64
10.10 [Intentionally Omitted] 65
11. OTHER PROVISIONS 65
11.1 Amendments and Waivers 65
11.2 Notices 66
</TABLE>
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<TABLE>
<S> <C> <C>
11.3 No Waiver; Cumulative Remedies 67
11.4 Survival of Representations and Warranties 67
11.5 Payment of Expenses and Taxes 68
11.6 Lending Offices 69
11.7 Successors and Assigns 69
11.8 [Intentionally Omitted] 71
11.9 Counterparts 71
11.10 Adjustments; Set-off 71
11.11 Lenders' Representations 72
11.12 Indemnity 72
11.13 Governing Law 73
11.14 Headings Descriptive 73
11.15 Severability 73
11.16 Integration 73
11.17 Consent to Jurisdiction 74
11.18 Service of Process 74
11.19 No Limitation on Service or Suit 74
11.20 WAIVER OF TRIAL BY JURY 74
11.21 Termination 75
</TABLE>
LIST OF EXHIBITS AND SCHEDULES
<TABLE>
<CAPTION>
EXHIBITS:
- --------
<S> <C> <C>
Exhibit A - Assignment and Assumption
Exhibit B - Commitment Amounts
Exhibit C - [Intentionally Omitted]
Exhibit D - Compliance Certificate
Exhibit E - Borrowing Request
Exhibit F - Guaranty
Exhibit G - [Intentionally Omitted]
Exhibit H - Note
Exhibit I - Secretary's Certificate (Borrower)
Exhibit J - Secretary's Certificate (Guarantor)
Exhibit K - Points for Legal Opinions
Exhibit L - [Intentionally Omitted]
Exhibit M - Form of Notice of Conversion
SCHEDULES:
- ---------
Schedule I - Domestic and Eurodollar Lending Offices
Schedule 4.4 - Subsidiaries (including Subsidiary Guarantors)
Schedule 4.5 - Litigation
Schedule 4.12 - Plans
</TABLE>
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<PAGE> 6
<TABLE>
<CAPTION>
<S> <C> <C>
Schedule 4.21 - Rent Roll and List of Unencumbered Assets
</TABLE>
6
<PAGE> 7
TERM LOAN AGREEMENT, dated as of March ___, 2000, by and among NEW
PLAN EXCEL REALTY TRUST, INC., a Maryland corporation (the "Borrower"), each
lender party hereto or which becomes a "Lender" pursuant to the provisions of
Section 11.7 (each a "Lender" and, collectively, the "Lenders"), and FLEET
NATIONAL BANK, as administrative agent (in such capacity, the "Administrative
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": PricewaterhouseCoopers LLP, or, after
the date hereof, any of: Arthur Andersen LLP; Deloitte & Touche LLP; Ernst &
Young LLP; KPMG LLP; or any successor to any of the foregoing; or such other
firm of certified public accountants of recognized national standing selected by
the Borrower and satisfactory to the Administrative Agent.
"Adjusted Net Operating Income": for any period, the
aggregate amount of the Net Operating Income from each Unencumbered Asset during
such period, less the Capital Expense Reserve for such Unencumbered Asset during
such period.
"Advance": an ABR Advance or a Eurodollar Advance, as
the case may be.
"Advance Termination Date": April 28, 2000.
"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 Administrative Agent of its intent to do so in any instance in
which it shall have requested a Eurodollar Advance pursuant to Section 2.3 or
2.8, an amount equal to the principal amount of such Eurodollar Advance; (ii) a
Eurodollar 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 (iii) the Borrower shall prepay or repay all or any
part of the principal amount of a Eurodollar Advance prior to the last day of
the Interest Period applicable thereto (including, without limitation, any
mandatory prepayment or a prepayment resulting from acceleration or illegality),
an amount equal to the principal amount of such Eurodollar 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
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<PAGE> 8
definition, control of a Person shall mean the power, direct or indirect, (i) to
vote 10% or more of the securities having ordinary voting power for the election
of directors of such Person or (ii) to direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise.
"Agreement": this Term Loan Agreement, as the same may
be amended, supplemented or otherwise modified from time to time.
"Agreement Regarding Fees": that certain Agreement
Regarding Fees dated of even date herewith between FNB and the Borrower.
"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 FNB Rate in effect on such date.
"Ancillary Assets": at any time, all Real Property of
the Borrower and its Subsidiaries, or in which the Borrower or any Subsidiary of
the Borrower has an interest (either directly or indirectly), and which is (i) a
Development Asset, (ii) a mortgage, or (iii) any other Real Property other than
an open air shopping center (including single tenant retail properties) or a
residential apartment building or residential apartment community (and
appurtenant amenities).
"Applicable Lending Office": in respect of any Lender,
(i) in the case of such Lender's ABR 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 ABR Advances or Eurodollar Advances, at all times during
which the applicable Pricing Level set forth below is in effect, the respective
percentage set forth below next to such Pricing Level:
<TABLE>
<CAPTION>
Pricing Level Eurodollar Advances ABR Advances
------------- ------------------- ------------
<S> <C> <C>
Pricing Level I 0.80% 0%
Pricing Level II 0.90% 0%
Pricing Level III 1.15% 0%
Pricing Level IV 1.20% 0%
Pricing Level V 1.25% 0.25%
</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 be, which would affect the applicable Pricing
Level.
"Assignment and Assumption Agreement": an assignment and
assumption 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
Notes and Commitments, substantially in the
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<PAGE> 9
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 Administrative Agent) of the Borrower.
"Available Commitment Amount": on any day during the
Loan Period, an amount equal to the Total Commitment Amount at such time minus
the total of all Loans outstanding on such date.
"Benefitted Lender": as defined in Section 11.10.
"Borrower's Interest": for any period, (i) with respect
to Unencumbered Assets owned by a DownREIT Partnership, a fraction, expressed as
a percentage, the numerator of which is the Net Operating Income of such
Unencumbered Assets for such period, less any distributions required to be made
to partners or members of such DownREIT Partnership, other than the Borrower and
its Subsidiaries, and the denominator of which is the Net Operating Income of
such Unencumbered Assets for such period, and (ii) with respect to any Ancillary
Asset, the percentage of profits and losses with respect thereto to which the
Borrower or its Subsidiaries, directly or indirectly, may be entitled to receive
for such period.
"Borrowing Date": any Business Day specified in a
Borrowing Request delivered pursuant to Section 2.3 as a date on which the
Borrower requests the Lenders to make Loans.
"Borrowing Request": a borrowing request in the form of
Exhibit E.
"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 Boston, Massachusetts, 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 Advances, 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.
"Capital Expense Reserve": during any period, (i) with
respect to each Unencumbered Asset other than a residential apartment building
or residential apartment community, an amount equal to (A) a per annum rate of
$.20 times (B) the total Net Rentable Area of such Unencumbered Asset, and (ii)
with respect to each Unencumbered Asset that is a residential apartment building
or residential apartment community, an amount equal to (A) $150 times (B) the
number of apartment units in such residential apartment building or community
(in each case whether or not such reserves are actually established by the
Borrower).
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<PAGE> 10
"Change of Control": the occurrence of any one of the
following events:
(a) any Person or Persons acting as a group shall
acquire direct or indirect ownership of 30% or more of the Borrower's common
Stock; or
(b) during any twelve month period on or after the
Effective Date, individuals who at the beginning of such period constituted the
Board of Directors of the Borrower (together with any new directors whose
election by the Board of Directors or whose nomination for election by the
shareholders of the Borrower was approved by a vote of at least a majority of
the members of the Board of Directors then in office who either were members of
the Board of Directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of the members of the Board of Directors then in office;
or
(c) 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
(d) the Borrower consolidates with, is acquired by, or
merges into or with any Person (other than a merger permitted by Section 8.2).
"Chief Financial Officer": at any time, the chief
financial officer of the Borrower, or if the Borrower does not have a chief
financial officer at such time, the officer designated by the Borrower as its
principal financial officer or such other officer of the Borrower that is
acceptable to the Administrative Agent.
"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 Loan Period to make Loans, 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 such
Lender's Commitment Amount, as the same may be increased pursuant to Section
2.1(b) or reduced pursuant to Section 2.5.
"Commitment Percentage": on any day, and as to any
Lender, the quotient of (i) such Lender's Commitment Amount on such day, divided
by (ii) the Commitments of all Lenders on such day.
"Compliance Certificate": a certificate substantially in
the form of Exhibit D.
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<PAGE> 11
"Consolidated": the Borrower and its Subsidiaries which
are consolidated for financial reporting purposes.
"Consolidated EBITDA": for any period, net income for
such period of the Borrower and its Subsidiaries, determined on a Consolidated
basis in accordance with GAAP, plus, without duplication and to the extent
deducted in determining such net income, the sum of (i) Consolidated Interest
Expense for such period, (ii) the aggregate amount of any taxes paid during such
period, (iii) the aggregate amount attributable to depreciation and amortization
for such period, (iv) the aggregate amount of extraordinary charges during such
period and (v) the aggregate amount of non-cash expenses during such period, and
minus, without duplication and to the extent added in determining such net
income for such period, the aggregate amount of extraordinary gains during such
period.
"Consolidated Fixed Charges": during any period, the sum
of each of the following with respect to the Borrower and its Subsidiaries
(without duplication), determined on a Consolidated basis in accordance with
GAAP: (i) the aggregate amount of all interest expense, both expensed and
capitalized (including Consolidated Interest Expense) for such period, (ii) the
aggregate of all scheduled principal amounts that become payable during such
period in respect of any Indebtedness of the Borrower or its Subsidiaries
(excluding balloon payments at maturity) and (iii) the aggregate amount of all
cash dividends paid during such period in respect of preferred stock of the
Borrower or its Subsidiaries.
"Consolidated Interest Expense": for any period,
interest and fees accrued, accreted or paid by the Borrower and its Subsidiaries
during such period in respect of Consolidated Total Indebtedness, determined in
accordance with GAAP, including (a) the amortization of debt discounts to the
extent included in interest expense in accordance with GAAP, (b) the
amortization of all fees (including fees with respect to interest rate cap
agreements or other agreements or arrangements entered into by the Borrower or
any of its Subsidiaries designed to protect the Borrower or such Subsidiaries,
as applicable, against fluctuations in interest rates) payable in connection
with the incurrence of any Indebtedness to the extent included in interest
expense in accordance with GAAP and (c) the portion of any rents payable under
capital leases allocable to interest expense in accordance with GAAP.
"Consolidated Total Indebtedness": as of any date, the
aggregate principal amount of all Indebtedness of the Borrower and its
Subsidiaries determined on a Consolidated basis in accordance with GAAP, plus,
if not otherwise required to be reflected in the Borrower's Consolidated balance
sheet (and without duplication) (i) Contingent Obligations of the Borrower and
its Subsidiaries on such date which are required in accordance with GAAP to be
disclosed in a footnote to any such balance sheet, and (ii) any guarantee by the
Borrower of any Indebtedness of an unconsolidated Subsidiary or joint venture in
which the Borrower is a direct or indirect investor (to the full extent of the
amount of such guaranteed Indebtedness on such date).
"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
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<PAGE> 12
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.
"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.
"Credit Party": the Administrative Agent, the Lead
Arranger, each Lender and their successors and assigns.
"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.
"Defaulting Lender": at any time, any Lender that, at
such time, (i) has failed to comply with any of its obligations to make a Loan
as required pursuant to Section 2.3 of this Agreement, (ii) has failed to pay to
the Administrative Agent or any Lender an amount owed by such Lender pursuant to
the terms of this Agreement or any of the other Loan Documents, or (iii) has
advised the Administrative Agent that it does not intend to comply with its
obligations under Section 2.3 by reason of having been deemed insolvent or
having become subject to a bankruptcy or insolvency proceeding.
"Development Asset": any Property of the Borrower or its
Subsidiaries, or in which the Borrower or any of its Subsidiaries has an
interest (either directly or indirectly) (i) which is new construction, or which
is undergoing an expansion which will increase the Net Rentable Area of such
Property by 20,000 square feet or more (provided that with respect to any
Property which is under expansion, if the balance thereof is a fully integrated,
rentable property, then only the portion of such Property that is under
expansion shall be a Development Asset),
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and (ii) for which a certificate of occupancy, whether temporary or permanent,
or the functional equivalent thereof, has not been issued with respect to such
construction or expansion. Notwithstanding the foregoing, any such new
construction or expansion which shall have been a Development Asset under the
criteria of this definition shall no longer be a Development Asset upon such
time as (A) the same is an income-producing Property in operating condition, and
(B) at least 70% of the Net Rentable Area (determined on an "as completed"
basis) of such construction or expansion is initially leased to tenants who have
taken possession thereof.
"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, as reported by such Lender to the Administrative
Agent and the Borrower.
"DownREIT Partnership": Excel Realty Partners, L.P., E.
H. Properties, L.P. and any other partnership or limited liability company
hereafter created by the Borrower for the purpose of acquiring assets qualifying
as "real estate assets" under Section 856(c) of the Code through the issuance of
partnership or limited liability company units in such partnership or limited
liability company to third parties, provided that, in the case of each such
entity (including Excel Realty Partners, L.P. and E. H. Properties, L.P.) (i)
the Borrower or a wholly owned Subsidiary of the Borrower is the sole general
partner or managing member of such partnership or limited liability company, as
the case may be, and (ii) the Borrower or its wholly owned Subsidiary shall be
entitled to receive not less than 99% of the net income and gains before
depreciation, if any, from such partnership or limited liability company after
the limited partners or non-managing members of such partnership or limited
liability company receive a stipulated distribution. Any partnership or limited
liability company created after the Effective Date must be approved by the
Administrative Agent as a "DownREIT Partnership" for purposes of being included
in this definition.
"Effective Date": the date on which the conditions
specified in Section 5 are satisfied.
"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.
"Environmental Risk Property": any Real Property of the
Borrower, a Subsidiary
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Guarantor or a DownREIT Partnership in respect of which, at any time:
(i) Hazardous Substances are (A) generated or
manufactured on, transported to or from, treated at, stored at or
discharged from such Real Property in violation of any Environmental Laws;
(B) discharged into subsurface waters under such Real Property in violation
of any Environmental Laws; or (C) discharged from such Real Property on or
into property or waters (including subsurface waters) adjacent to such Real
Property in violation of any Environmental Laws, and any of the foregoing
events in (A), (B) or (C) has an Adverse Environmental Impact; or
(ii) there exists with respect to such Real
Property (A) a claim, demand, suit, action, proceeding, condition, report,
directive, lien, violation, or non-compliance concerning any 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 such
Real Property or the release of any Hazardous Substance into the
environment from such Real Property, or (B) any actual liability in
connection with the presence of any Hazardous Substance on such Real
Property or the release of any Hazardous Substance into the environment
from such Real Property, and any of the foregoing events in (A) or (B) has
an Adverse Environmental Impact.
For purposes of this definition, the term "Adverse
Environmental Impact" shall mean any event described in clauses (A), (B) or
(C) of paragraph (i) above or clauses (A) or (B) of paragraph (ii) above
which could reasonably be expected to have a material adverse effect on (1)
the value of such Real Property, (2) the marketability of such Real
Property, or (3) the ability to finance or refinance such Real Property.
"ERISA": the Employee Retirement Income Security Act of
1974, as amended from time to time, and the rules and regulations issued
thereunder, as from time to time in effect.
"ERISA Affiliate": any Person which is a member of any
group of organizations (i) described in Section 414(b) or (c) of the Code of
which the Borrower is a member, or (ii) solely for purposes of potential
liability under Section 302(c)(11) of ERISA and Section 412(c)(11) of the Code
and the Lien created under Section 302(f) of ERISA and Section 412(n) of the
Code, described in Section 414(m) or (o) of the Code of which the Borrower is a
member.
"ERISA Liabilities": without duplication, the aggregate
of all unfunded vested benefits under all Plans and all potential withdrawal
liabilities under all Multiemployer Plans.
"Eurodollar Advance": 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 a particular Eurodollar Rate; and
"Eurodollar Advances" shall mean all such Eurodollar Advances in the aggregate.
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"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 Administrative Agent and the Borrower.
"Eurodollar Rate": with respect to each Eurodollar
Advance and as determined by the Administrative 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 FNB at approximately
12:00 P.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 FNB 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 FNB 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 specified in Section 9 has been satisfied.
"Existing Credit Agreements" shall mean (i) that certain
Credit Agreement (Facility I) dated as of November 17, 1999 among the Borrower,
The Bank of New York, as Administrative Agent, and the lenders signatory
thereto, and (ii) that certain Credit Agreement (Facility II), dated as of
November 17, 1999, among the Borrower, The Bank of New York, as Administrative
Agent, and the lenders signatory thereto.
"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 FNB as determined by FNB and reported to the Administrative Agent.
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"Financial Statements": as defined in Section 4.13.
"FNB": Fleet National Bank.
"FNB Rate": a rate of interest per annum equal to the
rate of interest publicly announced in Boston, Massachusetts, by FNB 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.
"Funds from Operations": With respect to any Person for
any fiscal period, the sum of (i) the net income of such Person for such fiscal
period (computed in accordance with GAAP), excluding gains (or losses) from debt
restructuring and sales of property, (ii) depreciation and amortization, and
(iii) other non-cash items, and after adjustments for unconsolidated
partnerships and joint ventures. Adjustments for unconsolidated partnerships and
joint ventures will be calculated to reflect funds from operations on the same
basis.
"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.
"Ground Lease": a ground lease in favor of the Borrower,
a wholly owned Subsidiary or a DownREIT Partnership which has an unexpired term
of 30 years or more (inclusive of any tenant-controlled renewal options) and
which includes within its terms those rights customarily required by mortgagees
making a loan secured by the interest of the holder of the leasehold estate
demised pursuant to such ground lease.
"Guaranty": collectively, (i) a Guaranty, substantially
in the form of Exhibit F executed by each of the Subsidiary Guarantors
identified on Schedule 4.4 and delivered to the Administrative Agent for the
benefit of the Lenders on or prior to the Effective Date, and (ii) each
additional Guaranty substantially in the form of Exhibit F executed by each
Required Additional Guarantor and delivered to the Administrative Agent for the
benefit of the Lenders after the Effective Date.
"Hazardous Substance": any hazardous or toxic substance,
material or waste, including, but not limited to, (i) those substances,
materials, and wastes listed in the United States Department of Transportation
Hazardous Materials Table (49 CFR 172.101) or by the Environmental Protection
Agency as hazardous substances (40 CFR Part 302) and amendments thereto and
replacements therefor and (ii) any substance, pollutant or material defined as,
or
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<PAGE> 17
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.
"Hedging Agreement" means any interest rate protection
agreement, foreign currency exchange agreement, commodity price protection
agreement or other interest or currency exchange rate or commodity price hedging
arrangement.
"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 11.12.
"Intellectual Property": all copyrights, trademarks,
patents, trade names and service names.
"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, and (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.
"Interest Period": 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
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Section 2.3 or its irrevocable notice of conversion as provided in Section 2.8;
provided, however, that all of the foregoing provisions relating to Interest
Periods are subject to the following:
(a) 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;
(b) if, with respect to the borrowing of any Loan as a
Eurodollar Advance or the conversion of one Advance to another pursuant to
Section 2.8, the Borrower shall fail to give due notice as provided in Section
2.3 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;
(c) 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;
(d) with respect to any Interest Period applicable to a
Eurodollar Advance, no such Interest Period shall end after the Maturity Date;
and
(e) the Borrower shall select Interest Periods so as not
to have more than six different Interest Periods outstanding at any one time
with respect to Eurodollar Advances.
"Investments": as defined in Section 8.3.
"Lead Arranger": Fleet Boston Robertson Stephens, Inc.
"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": an individual term loan or the
aggregate term loans as the case may be, to be made by the Lenders hereunder.
All Loans shall be made in Dollars.
"Loan Documents": collectively, this Agreement, the
Guaranty (and each Guaranty subsequently delivered pursuant to Section 7.11) and
the Notes.
"Loan Period": the period from the Effective Date
through the day preceding the Advance Termination Date.
"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
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supplemented from time to time.
"Material Adverse Effect": a material adverse effect on
(i) the financial condition, operations, business, or Properties 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 Administrative Agent and the Lenders to enforce the
Loan Documents.
"Maturity Date": the earlier of the date that is 364
days from the Effective Date (March 5, 2001)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 Operating Income": for any period and with respect
to all assets which are Unencumbered Assets during such period, net income for
such period, determined in accordance with GAAP, attributable to Unencumbered
Assets, plus depreciation and amortization, interest expense and any
extraordinary or non-recurring losses deducted in calculating such net income,
minus extraordinary or non-recurring gains and payments (including rent
insurance proceeds and condemnation awards) included in such net income, minus
any portion of such net income attributable to rents paid by any tenant which is
an Affiliate of the Borrower, minus an amount (but not less than zero) equal to
the difference between (i) 3% of Operating Income for such period, less (ii)
management fees payable in respect of such Unencumbered Assets during such
period. For purposes of any calculation of Net Operating Income, real estate
taxes, ground rent and insurance, shall be included only at their stabilized,
recurring levels.
"Net Rentable Area": with respect to any Real Property,
the floor area of any buildings, structures or improvements thereof (expressed
in square feet) available for leasing to tenants, as determined in accordance
with the leases or site plans or leasing plans for such Real Property, or if
such leases or site plans do not set forth the floor area demised thereunder (or
if such Real Property is not subject to a lease), then as determined by the
Borrower in accordance with an industry-accepted protocol approved by the
Administrative Agent.
"Non-Recourse Exclusions": With respect to any
Indebtedness of any Person which is secured by one or more parcels of Real
Property or interests therein and which is not a general obligation of such
Person, any usual and customary exclusions from the non-recourse limitations
governing such Indebtedness, including, without limitation, exclusions for
claims that (i) are based on fraud, intentional misrepresentation or
misapplication of funds, (ii) result from intentional mismanagement of or waste
at such Real Property, (iii) arise from the presence of Hazardous Substances on
such Real Property; or (iv) are the result of any unpaid real estate taxes and
assessments.
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"Non-Recourse Indebtedness": At any time, Indebtedness
of the Borrower and of its Subsidiaries at such time which is secured by one or
more parcels of Real Property or interests therein and which is not a general
obligation of the Borrower or such Subsidiary, the holder of such Indebtedness
having recourse solely to the parcels of Real Property securing such
Indebtedness, the leases thereon and the rents and profits thereof (except for
recourse against the general credit of the Borrower or its Subsidiaries for any
Non-Recourse Exclusions), provided that in calculating the amount of
Non-Recourse Indebtedness at any time, the amount of any Non-Recourse Exclusions
which are the subject of a final judgment shall not be included in Non-Recourse
Indebtedness.
"Note" and "Notes": as defined in Section 2.2.
"Operating Property": Any Real Property which at any
time (i) is an income-producing property in operating condition and in respect
of which no material part thereof has been damaged by fire or other casualty
(unless such damage has been repaired) or condemned (unless such condemnation
has been restored), (ii) is a retail shopping center, residential apartment
building, office building or other operating Property, (iii) for which a
certificate of occupancy, whether temporary or permanent, or the functional
equivalent thereof, has been issued for all improvements comprising the same and
are in full force and effect, and (iv) is at least 60% occupied by tenants who
have accepted the property and are paying rent in accordance with the terms of
their leases, and "Operating Properties" means all such Operating Properties,
collectively.
"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.
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"Permitted Liens": Liens permitted to exist under
Section 8.1.
"Person": an individual, a partnership, a corporation, a
business trust, a limited liability company, 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": one of the following five pricing
levels, as applicable, provided that if the ratings by S&P and Moody's in any
such Pricing Level are split by one equivalent rating level, the operative
rating would be deemed to be the higher of the two ratings, and if the ratings
by S&P and Moody's in any such Pricing Level are split by more than one
equivalent rating level, the operative rating would be deemed to be one rating
level higher than the lower of the two ratings, and provided, further, that
during any period that the Borrower has no Senior Debt Rating, Pricing Level V
would be the applicable Pricing Level:
"Pricing Level I": 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;
"Pricing Level II": the Pricing Level which would be
applicable for so long as the Senior Debt Rating is equal to BBB+ by S&P or Baa1
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 equal to BBB by S&P or Baa2
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 equal to BBB- by S&P or Baa3
by Moody's and Pricing Levels I, II and III are not applicable; and
"Pricing Level V": the Pricing Level which would be
applicable for so long as the Senior Debt Rating is less than BBB- by S&P or
Baa3 by Moody's and Pricing Levels I, II, III and IV are not applicable.
"Property": all types of real, personal, tangible,
intangible or mixed property.
"Rated Period": Any period during which S&P and Moody's
are maintaining a Senior Debt Rating and such Senior Debt Rating is at least
BBB- as determined by S&P, and at least Baa3, as determined by Moody's.
"Real Property": all real Property, and all interests in
real Property, owned, leased or held by the Borrower or any Subsidiary of the
Borrower.
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"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.
"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 Administrative Agent of its intent to
do so pursuant to Section 2.3 or 2.8, a period equal to the Interest Period that
the Borrower elected in respect of such Eurodollar Advance; or (ii) in the event
that a Eurodollar 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 (including, without
limitation, any mandatory prepayment or a prepayment resulting from acceleration
or illegality) prior to the last day of the Interest Period applicable thereto,
a period equal to the period from and including the date of such prepayment or
repayment to but excluding the last day of such Interest Period.
"Rent Roll": a schedule prepared by the Borrower from
time to time identifying (i) the Real Property owned by the Borrower or its
Subsidiaries and stating whether such items of Real Property are Unencumbered
Assets at such time, (ii) the annual base rent payable under each lease of Real
Property owned by the Borrower or any of its Subsidiaries, (iii) the
commencement and termination dates of the term of each such lease, (iv) any
renewal options with respect to such lease, (v) the Net Rentable Area of the
space demised under each such lease and (vi) such other information as the
Administrative Agent may reasonably require.
"Required Additional Guarantors": any Subsidiary
required to execute and deliver a Guaranty pursuant to Section 7.11.
"Required Lenders": means (a) so long as the Commitments
remain in effect (i) if no Loans are outstanding at such time, Lenders (other
than any Defaulting Lenders) having Commitments equal to at least 51% of the
Commitments of all Lenders at such time; or (ii) if Loans are outstanding at
such time, Lenders (other than any Defaulting Lenders) holding Notes having an
unpaid principal balance equal to at least 51% of the aggregate Loans then
outstanding; and (b) if the Commitments have been terminated, Lenders (other
than any Defaulting Lenders) whose Loans have an unpaid principal balance equal
to at least 51% of the aggregate Loans then outstanding.
"Restricted Payment": as to any Person, any dividend or
other distribution by such Person (whether in cash, securities or other
property) with respect to any shares of any class of equity securities or
beneficial interests of such Person, or any payment (whether in cash, securities
or other property), including any sinking fund or similar deposit, on account of
the purchase, redemption, retirement, acquisition, cancellation or termination
of any such shares or beneficial interests or any option, warrant or other right
to acquire any such shares or beneficial interests.
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"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.
"Special Counsel": Long Aldridge & Norman LLP, special
counsel to FNB.
"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, limited liability company, joint venture or other
business entity of which such Person, directly or indirectly, either (i) in
respect of a corporation, owns or controls more than 50% of the outstanding
Stock having ordinary voting power to elect a majority of the board of directors
or similar managing body, irrespective of whether a class or classes shall or
might have voting power by reason of the happening of any contingency, or (ii)
in respect of an association, partnership, limited liability company, joint
venture or other business entity, is entitled to share, either directly or
indirectly through an entity described in clause (i) above, in more than 50% of
the profits and losses, however determined.
"Subsidiary Guarantor" means the Subsidiaries of the
Borrower listed on Schedule 4.4 and designated thereof as a Subsidiary
Guarantor, each Required Additional Guarantor, and their successors and assigns;
and "Subsidiary Guarantors" shall mean all such guarantors, collectively.
"Tangible Net Worth": as of any date of determination
thereof with respect to the Borrower and its Subsidiaries, determined on a
Consolidated basis in accordance with GAAP, the remainder of (i) the amounts
which would, in conformity with GAAP, be included under "shareholder's equity"
(or any like caption) on a Consolidated balance sheet of the Borrower and its
Subsidiaries as at such date, minus (ii) 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).
"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.
"Total Capital": on any date, the sum of, without
duplication, (i) all Indebtedness of the Borrower and its Subsidiaries on such
date which, in accordance with GAAP, is
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considered long term debt of the Borrower and its Subsidiaries, (ii) the amounts
which would, in conformity with GAAP, be included under "shareholder's equity"
(or any like caption) on a Consolidated balance sheet of the Borrower and its
Subsidiaries as at such date, (iii) the value of all issued and outstanding
preferred stock of the Borrower as set forth on the balance sheet of the
Borrower as at such date, and (iv) all Loans outstanding on such date.
"Total Commitment Amount": on any day, the sum of the
Commitment Amounts of all Lenders on such day.
"Unencumbered Asset": any Operating Property which at
any time (i) is wholly owned in fee simple by the Borrower, a wholly owned
Subsidiary of the Borrower or a DownREIT Partnership (or is the subject of a
Ground Lease), (ii) is free and clear of all Liens (other than Liens permitted
under clauses (i), (ii), (iii), (iv), (v) (vi), (viii) and (ix) of Section 8.1),
(iii) does not have applicable to it (or to any such Ground Lease) any
restriction on the pledge, transfer, mortgage or assignment of such Operating
Property or Ground Lease (including any restriction imposed by the
organizational documents of any such Subsidiary or DownREIT Partnership), (iv)
if owned by any such Subsidiary or DownREIT Partnership, the Stock, partnership
interests or membership interests, as the case may be, of such Subsidiary or
DownREIT Partnership that are owned by the Borrower or any Subsidiary are not
subject to any pledge or security interest in favor of any Person other than the
Borrower or a Subsidiary Guarantor, (v) is not an Environmental Risk Property;
(vi) does not have, to the best of the Borrower's knowledge, any title, survey,
environmental or other defect which could reasonably be expected to materially
and adversely affect the value, use or marketability thereof, and (vii) is
located within the contiguous 48 states of the continental United States; and
"Unencumbered Assets" mean all such Unencumbered Assets, collectively.
"Unencumbered Assets Coverage Ratio": on any date of
determination the ratio of (i) the sum of all Adjusted Net Operating Income for
all Unencumbered Assets of the Borrower and its Subsidiaries on a Consolidated
basis, plus the Borrower's Interest in all Adjusted Net Operating Income for all
Unencumbered Assets owned by a DownREIT Partnership, in each case for the fiscal
quarter most recently then ending, to (ii) the portion of the Consolidated
Interest Expense consisting of interest on all unsecured Indebtedness of the
Borrower and its Subsidiaries as of such fiscal quarter end.
"Unencumbered Asset Value": as of any date the quotient
of (i) an amount equal to the Adjusted Net Operating Income for all Unencumbered
Assets in the aggregate for the four fiscal quarters of the Borrower most
recently ending as of such date, divided by (ii) 10%. For purposes of any
determination of Unencumbered Asset Value, the following limitations and
methodology shall apply: (A) the Adjusted Net Operating Income of any
Unencumbered Asset owned by a DownREIT Partnership shall be based on the
Borrower's Interest in the Adjusted Net Operating Income for each such
Unencumbered Asset for the four fiscal quarters having ended as of such date;
(B) in the event more than 10% of the gross base rents payable under all leases
for Properties of the Borrower, its Subsidiaries or a DownREIT Partnership
(including the Borrower's Interest in any Property) shall be payable by one
tenant and its Subsidiaries, then Unencumbered Asset Value shall be reduced by
the percentage amount of such excess multiplied
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by the Unencumbered Asset Value attributable to the Properties leased or
controlled by such tenant and its Subsidiaries, and (C) in the event that the
Borrower or a Subsidiary of the Borrower shall not have owned an Unencumbered
Asset for the entire previous four fiscal quarters, then for the purposes of
determining the Unencumbered Asset Value with respect to such Unencumbered
Asset, the Adjusted Net Operating Income for such Unencumbered Asset shall be
annualized in a manner reasonably satisfactory to the Administrative Agent.
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 Boston, Massachusetts time.
2. AMOUNT AND TERMS OF LOANS.
2.1 Loans .
(a) Subject to the terms and conditions set forth in
this Agreement, each of the Lenders severally agrees to lend to the Borrower
during the Loan Period, upon notice by the Borrower to the Administrative Agent
given in accordance with Section 2.3, such sums as are requested by the Borrower
for the purposes set forth in Section 2.15 up to the aggregate principal amount
of such Lender's Commitment Amount; provided, that, in all events no Default or
Event of Default shall have occurred and be continuing and the Borrower's
financial statements as required pursuant to Section 7.1 shall demonstrate
compliance with all covenants set forth therein; and provided, further, that the
outstanding principal amount of the Loans (after giving
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effect to all amounts requested) shall not at any time exceed the Total
Commitment Amount. The Loans shall be made pro rata in accordance with each
Lender'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 5, in the case of the initial Loan, and Section
6, in the case of all other Loans, have been satisfied on the date of such
request. No Lender 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. Upon the expiration of the Loan Period, any unadvanced
portion of the Total Commitment Amount (as same may have been increased pursuant
to Section 2(b)), shall terminate and the Total Commitment Amount and each
Lender's Commitment Amount shall be reduced accordingly.
(b) In consideration for the payment by the Borrower to
FNB of an option fee described in the Agreement Regarding Fees, the Borrower
shall have the option, to be exercised by giving written notice to the
Administrative Agent prior to the Advance Termination Date, to increase the
Total Commitment Amount up to $75,000,000.00. The request by the Borrower to
increase the Total Commitment Amount by up to such additional $25,000,000.00
shall constitute a representation and warranty by the Borrower that all the
conditions set forth in this Section 2.1(b) shall have been satisfied on the
date of such request. The Borrower's election shall be subject to the
satisfaction of the following conditions precedent:
(i) the Borrower shall execute and deliver to the
Lenders replacement Notes reflecting each Lender's increased Commitment
Amount (each Lender's Commitment Amount shall be increased by such Lender's
Commitment Percentage of the amount of the increase requested by the
Borrower, up to an additional $25,000,000.00);
(ii) the Borrower shall pay to FNB an additional
Facility Fee as set forth in the Agreement Regarding Fees, which fee shall,
when paid, be fully earned and non-refundable under any circumstances (FNB
shall pay to the other Lenders a portion of the Facility Fee pursuant to
their separate agreement);
(iii) on the date such notice is given, there shall
exist no Default or Event of Default; and
(iv) the representations and warranties contained
in the Loan Documents shall be true and correct in all respects, both
immediately before and after giving effect to such request, as though such
representations and warranties had been made on the date of such request
(except for representations and warranties contained in the Loan Documents
that speak as of a specific date, which need only be true and correct as of
such date).
2.2 Notes .
(a) Notes as Evidence of Indebtedness. The Loans of each
Lender shall be evidenced by a promissory note of the Borrower, substantially in
the form of Exhibit H, with appropriate insertions therein as to date and
principal amount (each, as endorsed or modified
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<PAGE> 27
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 of such Lender plus
interest and other amounts due and owing to the Lenders under the Loan
Documents.
(b) The Notes Generally. 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 Maturity Date. The following information shall be
recorded by each Lender on its books and, prior to any transfer of any such
Notes, endorsed by such Lender on the schedule attached thereto or any
continuation thereof: (i) the date and amount of each Loan of such Lender; (ii)
its character as an ABR Advance, a Eurodollar Advance or a combination thereof;
(iii) the interest rate and Interest Period applicable to Eurodollar Advances;
and (iv) each payment and prepayment of the principal 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.
2.3 Procedure for Loan Borrowings .
(a) Loans. Subject to the limitations set forth in
Sections 2.1 and 2.3(c), the Borrower may borrow under the Commitments on any
Business Day during the Loan Period by providing notice thereof in accordance
with Section 2.3(b).
(b) Borrowing Requests. To request Loans pursuant to
Section 2.3(a), the Borrower shall notify the Administrative Agent of such
request by telephone (a) in the case of a Eurodollar Advance, not later than
12:00 P.M., Boston, Massachusetts time, two Business Days before the date of the
proposed borrowing of Loans or (b) in the case of an ABR Advance, not later than
12:00 P.M., Boston, Massachusetts time, one Business Day before the date of such
proposed advance. Each such telephonic Borrowing Request shall be irrevocable
and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Borrowing Request signed by the Borrower. Each
such telephonic and written Borrowing Request shall specify the following
information: (i) the aggregate amount of the requested borrowing of Loans; (ii)
the date of such borrowing of Loans, which shall be a Business Day; (iii)
whether the requested Loan is to be an ABR Advance or a Eurodollar Advance; (iv)
in the case of a Eurodollar Advance, the initial Interest Period to be
applicable thereto, which shall be a period contemplated by the definition of
the term "Interest Period"; and (v) the location and number of the Borrower's
account to which funds are to be disbursed, which shall comply with the
requirements of Section 2.3(d).
(c) Limits on Advances. Each borrowing of (i) ABR
Advances shall be in a minimum 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 $5,000,000 or such amount plus a whole
multiple of $100,000 in excess thereof, or, if less, the Available Commitment
Amount.
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<PAGE> 28
(d) Funding of Loans. Upon receipt of each notice of
borrowing from the Borrower, the Administrative Agent shall promptly notify each
Lender of the contents thereof. Subject to its receipt of the notice referred to
in the preceding sentence, each Lender will make the amount of its Commitment
Percentage of each borrowing of Loans pursuant to this Section available to the
Administrative Agent for the account of the Borrower at the office of the
Administrative Agent set forth in Section 11.2 not later than 12:30 P.M. on the
relevant Borrowing Date requested by the Borrower in funds immediately available
to the Administrative Agent at such office. The amounts so made available to the
Administrative Agent on the Borrowing Date will then, subject to the
satisfaction of the terms and conditions of this Agreement, as determined by the
Administrative Agent, be made available on such date to the Borrower by the
Administrative Agent at the office of the Administrative 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 Administrative Agent.
(e) Effect of Incomplete Borrowing Request. If no
election is made as to the whether the Loans shall be ABR Advances or Eurodollar
Advances, then the requested Loans shall be an ABR Advance. If no Interest
Period is specified with respect to any requested borrowing of Eurodollar
Advances, then the Borrower shall be deemed to have selected an Interest Period
of one month's duration.
(f) Administrative Agent's Assumption. Unless the
Administrative 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 Administrative
Agent such Lender's pro rata share of the Loans requested by the Borrower, the
Administrative Agent may assume that such Lender has made such share available
to the Administrative Agent on the Borrowing Date in accordance with this
Section, provided that such Lender received notice of the proposed borrowing
from the Administrative Agent, and the Administrative 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 Administrative Agent, such Lender and the
Borrower severally agree to pay to the Administrative 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
Administrative 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 Administrative Agent). Such payment by the
Borrower, however, shall be without prejudice to its rights against such Lender.
If such Lender shall pay to the Administrative Agent such corresponding amount,
such amount so paid shall constitute such Lender's Loan as part of the Loans for
purposes of this Agreement, which Loan shall be deemed to have been made by such
Lender on the Borrowing Date applicable to such Loans, but without prejudice to
the Borrower's rights against such Lender.
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<PAGE> 29
2.4 [Intentionally Omitted] .
2.5 Termination or Reduction of Commitments .
(a) Voluntary Reductions. The Borrower shall have the
right, upon at least three Business Days' prior written notice to the
Administrative Agent, at any time to terminate the Commitments or from time to
time to permanently reduce the Commitments, provided that (i) the total of the
Commitments shall not be reduced below an amount equal to the sum of the
aggregate principal balance of the Loans then outstanding thereunder, and (ii)
any such reduction of the Commitments shall be in the minimum amount of
$5,000,000 or such amount plus a whole multiple of $100,000 in excess thereof.
(b) In General. Reductions of the Commitments shall be
applied pro rata according to the Commitments of each Lender, as the case may
be. Simultaneously with each reduction of the Commitments under this Section,
the Borrower shall prepay the Loans outstanding thereunder by the amount, if
any, by which the aggregate unpaid principal balance of such Loans exceeds the
amount of the Commitments, as so reduced. If any prepayment is made under this
Section with respect to any 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. No reduction or termination of the Commitments
may be reinstated.
2.6 Repayment of Loans; Evidence of Debt .
(a) Promise to Pay. The Borrower hereby unconditionally
promises to pay to the Administrative Agent for the account of each Lender the
then unpaid principal amount of each Loan on the Maturity Date.
(b) Lenders' Accounts. Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the debt of
the Borrower to such Lender resulting from each Loan made by such Lender,
including the amounts of principal and interest payable and paid to such Lender
from time to time hereunder.
(c) Administrative Agent's Accounts. The Administrative
Agent shall maintain accounts in which it shall record (i) the amount of each
Loan made hereunder, the type of Advance thereof and the Interest Period
applicable thereto, (ii) the amount of any principal or interest due and payable
or to become due and payable from the Borrower to each Lender hereunder and
(iii) the amount of any other sum received by the Administrative Agent hereunder
for the account of the Lenders and each Lender's share thereof.
(d) Entries Made in Accounts. The entries made in the
accounts maintained pursuant to paragraphs (b) and (c) of this Section shall, to
the extent not inconsistent with any entries made in any Note and absent
manifest error, be prima facie evidence of the existence and amounts of the
obligations recorded therein, provided that the failure of any Lender or the
Administrative Agent to maintain such accounts or any error therein shall not in
any manner affect the obligation of the Borrower to repay the Loans in
accordance with the terms of this
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<PAGE> 30
Agreement.
(e) Loans Evidenced by Notes. The Loans and interest
thereon shall at all times (including after assignment pursuant to Section 11.7)
be represented by one or more Notes in like form payable to the order of the
payee named therein and its registered assigns.
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
Administrative 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 Administrative Agent shall promptly
notify each Lender in respect thereof. Partial prepayments of ABR Advances
and/or Eurodollar Advances shall be in an aggregate minimum 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 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 be at least (subject to Section 2.3(c)) $1,000,000 or
such amount plus a whole multiple of $100,000 in excess thereof. Any Loans
prepaid shall not be readvanced.
(b) In General. If any prepayment is made in respect of
any 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.
2.8 Conversions .
(a) Conversion Elections. The Borrower may elect from
time to time to convert Eurodollar Advances to ABR Advances by giving the
Administrative 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 Administrative
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
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<PAGE> 31
Interest Period applicable to the Eurodollar Advances which are to be converted
to such new Eurodollar Advances. Each such notice shall be in the form of
Exhibit M and must be delivered to the Administrative Agent prior to 12:00 noon
on the Business Day required by this Section for the delivery of such notices to
the Administrative Agent. The Administrative 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 $5,000,000
or such amount plus a whole multiple of $100,000 in excess thereof.
(b) Effect on Conversions if an Event of Default.
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 Administrative
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 Administrative 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) Conversion not a Borrowing. Each conversion shall be
effected by each Lender by applying the proceeds of its new ABR Advance or
Eurodollar Advance, as the case may be, to its Advances (or portion thereof)
being converted (it being understood that such conversion shall not constitute a
borrowing for purposes of Sections 4, 5 or 6).
2.9 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 plus the Applicable Margin.
Each Eurodollar Advance Eurodollar Rate for the applicable Interest Period plus the
Applicable Margin.
</TABLE>
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<PAGE> 32
(b) Event of Default. After the occurrence and during
the continuance of an Event of Default, the outstanding principal
balance of the Loans 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%.
(c) Interest Payment Dates. Accrued interest on each
Loan shall be payable in arrears on each Interest Payment Date for such Loan,
provided that (i) interest accrued pursuant to paragraph (b) of this Section
shall be payable on demand, (ii) in the event of any repayment or prepayment of
any Loan, accrued interest on the principal amount repaid or prepaid shall be
payable on the date of such repayment or prepayment and (iii) in the event of
any conversion of any Eurodollar Advance prior to the end of the current
Interest Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.
(d) General. Interest on (i) ABR Advances, to the extent
based on the FNB Rate, shall be calculated on the basis of a 365 day year (as
the case may be), and (ii) ABR Advances, to the extent based on the Federal
Funds Rate, Eurodollar 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. 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 Administrative 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 Administrative Agent pursuant to this Agreement shall be conclusive and
binding on the Borrower and the Lenders absent manifest error. At no time shall
the interest rate payable on the Loans of any Lender, together with the Facility
Fee and all other amounts payable under the Loan Documents, to the extent the
same are construed to constitute interest, exceed the Highest Lawful Rate. If
interest payable to a Lender on any date would exceed the maximum amount
permitted by the Highest Lawful Rate, such interest payment shall automatically
be reduced to such maximum permitted amount, and interest for any subsequent
period, to the extent less than the maximum amount permitted for such period by
the Highest Lawful Rate, shall be increased by the unpaid amount of such
reduction. Any interest actually received for any period in excess of such
maximum allowable amount for such period shall be deemed to have been applied as
a prepayment of the Loans. The Borrower acknowledges that to the extent interest
payable on ABR Advances is based on the FNB Rate, the FNB 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 FNB 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 Administrative Agent shall
have reasonably determined
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<PAGE> 33
(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 Administrative 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 Administrative 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 Administrative 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
Administrative Agent (by notice to the Borrower promptly upon either (x) the
Administrative 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 Administrative Agent having been notified by such Required Lenders that
circumstances no longer render the Advances (or any portion thereof) Affected
Advances), no further Eurodollar Advances shall be required to be made by the
Lenders nor shall the Borrower have the right to convert all or any portion of
the Loans to Eurodollar Advances.
2.11 Taxes; Net Payments .
(a) All payments made by the Borrower or Subsidiary
Guarantor under the Loan Documents shall be made free and clear of, and without
reduction for or on account of, any taxes, levies, imposts, deductions, charges
or withholdings 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 this Agreement and the 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 hereafter imposing upon the Borrower, an obligation to
withhold any portion of the payments made by the Borrower under the Loan
Documents, that payments to the Administrative Agent on behalf of such Lender
are not subject to withholding.
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<PAGE> 34
2.12 Illegality .
Notwithstanding any other provisions herein, if any law,
regulation, treaty or directive hereafter enacted, promulgated, approved or
issued, or any change in any presently existing law, regulation, treaty or
directive, 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, such Lender shall so notify the Administrative
Agent and the Administrative Agent shall forthwith give notice thereof to the
other Lenders and the Borrower, whereupon (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 Administrative Agent and the Borrower of such event. Notwithstanding the
foregoing, to the extent that the conditions giving rise to the notice
requirement set forth in this Section can be eliminated by the transfer of such
Credit Party's Loans or Commitment to another of its branches, and to the extent
that such transfer is not inconsistent with such Credit Party's internal
policies of general application and only if, as determined by such Credit Party
in its sole discretion, the transfer of such Loan or Commitment, as the case may
be, would not otherwise adversely affect such Loans or such Credit Party, the
Borrower may request, and such Lender shall use reasonable efforts to effect,
such transfer.
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 Credit Party (or any corporation
directly or indirectly owning or controlling such Credit Party) with any request
or directive, whether or not having the force of law, from any central bank or
other Governmental Authority, agency or instrumentality:
(a) does or shall subject any Credit Party 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 Credit Party 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 Credit Party or its Applicable Lending Office for any
of such Advances by the jurisdiction in which such Credit Party is incorporated
or has its principal office or such Applicable Lending Office, including, in the
case of Credit Parties incorporated in any State of the United States,
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<PAGE> 35
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 Credit Party in respect of its Eurodollar Advances, which, in the case of
Eurodollar Advances, 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 Credit
Party of making, issuing, 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 Credit Party, upon its demand, any
additional amounts necessary to compensate such Credit Party for such additional
cost or reduction in such amount receivable which such Credit Party deems to be
material as determined by such Credit Party; provided, however, that nothing in
this Section shall require the Borrower to indemnify the Credit Parties with
respect to withholding Taxes for which the Borrower has no obligation under
Section 2.11. No failure by any Credit Party to demand compensation for any
increased cost during any Interest Period shall constitute a waiver of such
Credit Party'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 Credit Party to the Borrower shall be
conclusive absent manifest error. The obligations of the Borrower under this
Section shall survive the termination of this Agreement and any of the
Commitments or the payment of the Notes and all other amounts payable under the
Loan Documents. Failure to demand compensation pursuant to this Section shall
not constitute a waiver of such Credit Party's right to demand such
compensation. To the extent that any increased costs of the type referred to in
this Section are being incurred by a Credit Party and such costs can be
eliminated or reduced by the transfer of such Credit Party's Loans or Commitment
to another of its branches, and to the extent that such transfer is not
inconsistent with such Credit Party's internal policies of general application
and only if, as determined by such Credit Party in its sole discretion, the
transfer of such Loan or Commitment, as the case may be, would not otherwise
materially adversely affect such Loan or such Credit Party, the Borrower may
request, and such Lender shall use reasonable efforts to effect, such transfer.
2.14 Indemnification for Break Funding Losses .
Notwithstanding anything contained herein to the
contrary, if (i) the Borrower shall fail to borrow or convert on a Borrowing
Date or Conversion Date after it shall have given notice to do so in which it
shall have requested a Eurodollar Advance pursuant to Section 2.3 or 2.8, or
(ii) a Eurodollar Advance shall be terminated or prepaid for any reason prior to
the last day of the Interest Period applicable thereto (including, without
limitation, any mandatory prepayment or a prepayment resulting from acceleration
or illegality), the Borrower agrees to indemnify each Credit Party against, and
to pay on demand directly to such Credit Party, any loss or expense suffered by
such Credit Party as a result of such failure to borrow or convert, or such
termination or repayment, including, without limitation, an amount, if greater
than zero, equal to:
35
<PAGE> 36
A x (B-C) x D
---
360
where:
"A" equals such Credit Party's pro rata share of the
Affected Principal Amount;
"B" equals the applicable Eurodollar Rate;
"C" equals the applicable Eurodollar Rate (expressed as
a decimal) 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 in an amount equal
approximately to such Credit Party'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 Credit Party;
"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 Credit Party) suffered by such Credit Party
in connection with such Eurodollar 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. A statement setting forth the calculations of any
amounts payable pursuant to this Section submitted by a Credit Party to the
Borrower shall be conclusive and binding on the Borrower absent manifest error.
The obligations of the Borrower under this Section shall survive the termination
of this Agreement and the Commitments and the payment of the Notes and all other
amounts payable under the Loan Documents.
2.15 Use of Proceeds .
The proceeds of Loans shall be used solely for (i)
acquisition of Borrower's common stock; and (ii) general business purposes,
including, without limitation, working capital and refinancing of existing
Indebtedness, and such use shall conform to the provisions of Section 4.11.
2.16 Capital Adequacy .
If (i) after the date hereof, 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
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<PAGE> 37
directive or guideline from any central bank or United States or foreign
Governmental Authority (whether or not 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 Credit Party (or any lending office of such
Credit Party) or any corporation directly or indirectly owning or controlling
such Credit Party or imposes any restriction on or otherwise adversely affects
such Credit Party (or any lending office of such Credit Party) or any
corporation directly or indirectly owning or controlling such Credit Party and
such Credit Party shall have reasonably determined that such enactment,
promulgation, change or compliance has the effect of reducing the rate of return
on such Credit Party's capital or the asset value to such Credit Party of any
Loan made by such Credit Party 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 Credit Party could have achieved but for such enactment,
promulgation, change or compliance (after taking into account such Credit
Party's policies regarding capital adequacy) by an amount deemed by such Credit
Party to be material, then, upon demand by such Credit Party, the Borrower shall
promptly pay to such Credit Party such additional amount or amounts as shall be
sufficient to compensate such Credit Party 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 Administrative Agent setting forth the
determination of such amount or amounts that will compensate such Credit Party
for such reductions shall be presumed correct absent manifest error. No failure
by any Credit Party to demand compensation for such amounts hereunder shall
constitute a waiver of such Credit Party's right to demand such compensation at
any time. Such Credit Party shall, however, use reasonable efforts to notify the
Borrower of such claim within 90 days after the officer of such Credit Party
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 this Agreement and the Commitments and
the payment of the Notes and all other amounts payable under the Loan Documents.
2.17 Administrative Agent's Records .
The Administrative Agent's records with respect to the
Loans, the interest rates applicable thereto, each payment by the Borrower of
principal and interest on the Loans, and fees, expenses and any other amounts
due and payable in connection with this Agreement shall be presumptively correct
absent manifest error as to the amount of the Loans, and the amount of principal
and interest paid by the Borrower in respect of such Loans and as to the other
information relating to the Loans, and amounts paid and payable by the Borrower
hereunder and under the Notes. The Administrative 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.
2.18 [Intentionally Omitted] .
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3. FEES; PAYMENTS.
3.1 Facility Fee .
(a) The Borrower agrees to pay to the Administrative
Agent on the Effective Date and, if applicable, on the date the Borrower
exercises its option to increase the Total Commitment Amount pursuant to Section
2.1(b), for the account of the Lenders in accordance with each Lender's separate
agreement with Administrative Agent, a fee (the "Facility Fee"), as provided in
the Agreement Regarding Fees.
(b) The Borrower agrees to pay any other fees payable to
any Credit Party under any separate agreement at the times so agreed upon in
such separate agreements.
(c) The Facility Fee shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for distribution
directly to the Credit Party to whom such Facility Fee is payable. The Facility
Fee shall not be refundable under any circumstances.
3.2 Payments; Application of Payments .
Each payment, including each prepayment, of principal
and interest on the Loans and the Facility Fee shall be made by the Borrower to
the Administrative Agent, without set-off, deduction or counterclaim, at its
office set forth in Section 11.2 in funds immediately available to the
Administrative Agent at such office by 12:00 noon on the due date for such
payment. Promptly upon receipt thereof by the Administrative Agent, the
Administrative Agent shall remit, in like funds as received, 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. The failure of the
Borrower to make any such payment by such time shall not constitute a default
hereunder, provided that such payment is made on such due date, but any such
payment made after 12:00 noon on such due date shall be deemed to have been made
on the next Business Day for the purpose of calculating interest on amounts
outstanding on the Loans. If any payment hereunder or under the Notes shall be
due and payable on a day which is not a Business Day, the due date thereof
(except as otherwise provided in the definition of Interest Period) shall be
extended to the next Business Day and (except with respect to payments in
respect of the Facility Fee) interest shall be payable at the applicable rate
specified herein during such extension. If any payment is made with respect to
any Eurodollar Advance 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 Administrative Agent and the Lenders to enter
into this Agreement and to make the Loans the Borrower makes the following
representations and warranties to the Administrative Agent and each Lender:
4.1 Existence and Power .
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(a) The Borrower is a Maryland corporation duly organized and
validly existing and in good standing under the laws of Maryland, has all
requisite power and authority to own its Property and to carry on its business
as now conducted, and 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) Each Subsidiary of the Borrower (including each Subsidiary
Guarantor) is a corporation, partnership, limited liability company, real estate
investment trust or business trust, is validly existing and in good standing
under the laws of the jurisdiction of its organization, has all requisite power
and authority to own its Property and to carry on its business as now conducted,
and is in good standing and authorized to do business in each other 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.
4.2 Authority.
The Borrower has full legal power and authority to enter into,
execute, deliver and perform the terms of the Loan Documents to which it is a
party 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 corporate action.
4.3 Binding Agreement.
(a) The Loan Documents to which the Borrower is a party
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) The execution, delivery and performance by the Borrower of
the Loan Documents to which it is a party does not violate the provisions of any
applicable statute, law (including, without limitation, any applicable usury or
similar law), rule or regulation of any Governmental Authority.
4.4 Subsidiaries; DownREIT Partnerships.
As of the Effective Date, the Borrower has only the
Subsidiaries set forth on Schedule 4.4. Schedule 4.4 sets forth the name of, and
the ownership interest of the Borrower in, each Subsidiary of the Borrower and
identifies each Subsidiary that is a Subsidiary Guarantor, in each case as of
the Effective Date. The shares of each corporate Subsidiary of the Borrower that
are owned by the Borrower 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
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Subsidiary is owned free and clear of any Liens (other than Liens applicable to
a partner under the terms of any partnership agreement to secure the Borrower's
obligation to make capital contributions or similar payments thereunder). As of
the Effective Date, the only DownREIT Partnerships are Excel Realty Partners,
L.P. and E.H. Properties, L.P.
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 of the Borrower) pending or, to the
knowledge of the Borrower, threatened against the Borrower or any Subsidiary of
the Borrower 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 franchise, right, license, permit
or similar authorization held by the Borrower or any Subsidiary of the Borrower,
which rescission, termination or cancellation could reasonably be expected to
have a Material Adverse Effect.
(b) As of the date hereof, Schedule 4.5 sets forth all
actions, suits and 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 of the Borrower) pending or, to the knowledge of the Borrower,
threatened against the Borrower, any Subsidiary of the Borrower 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 be obtained by the Borrower to authorize, or
is required in connection with the execution, delivery and performance of the
Loan Documents or is required to be obtained by the Borrower as a condition to
the validity or enforceability of the Loan Documents.
4.7 No Conflicting Agreements.
Neither the Borrower nor any Subsidiary of the Borrower is in
default beyond any applicable grace or cure period under any mortgage,
indenture, contract or agreement to which it is a party or by which it or any of
its Property is bound, the effect of which default could reasonably be expected
to have a Material Adverse Effect. The execution, delivery or carrying out of
the terms of the Loan Documents will not constitute a default under, or result
in the creation or imposition of, or obligation to create, any Lien upon any
Property of the Borrower or any Subsidiary of the Borrower pursuant to the terms
of any such mortgage, indenture, contract or agreement.
4.8 Compliance with Applicable Laws.
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Neither the Borrower nor any Subsidiary of the Borrower 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 of
the Borrower is in compliance in all material respects with all statutes,
regulations, rules and orders applicable to Borrower or such Subsidiary of all
Governmental Authorities, including, without limitation, (i) Environmental Laws
and ERISA, a violation of which could reasonably be expected to have a Material
Adverse Effect and (ii) Sections 856-860 of the Code, compliance with which is
required to preserve the Borrower's status as a REIT.
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 permitted under Section 7.4) in
which the failure to pay could reasonably be expected to have a Material Adverse
Effect, and no tax Liens have been filed with respect thereto. The charges,
accruals and reserves on the books of the Borrower and each Subsidiary of the
Borrower 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 of its Subsidiaries or any claims being asserted which could reasonably
be expected to have a Material Adverse Effect.
4.10 Governmental Regulations.
Neither the Borrower nor any Subsidiary of the Borrower is
subject to regulation under the Public Utility Holding Company Act of 1935, as
amended, the Federal Power Act, as amended, or the Investment Company Act of
1940, as amended, and neither the Borrower nor any Subsidiary of the Borrower is
subject to any statute or regulation which prohibits or restricts the incurrence
of Indebtedness under the Loan Documents, including, without limitation,
statutes or regulations relative to common or contract carriers or to the sale
of electricity, gas, steam, water, telephone, telegraph or other public utility
services.
4.11 Federal Reserve Regulations; Use of Loan Proceeds.
Neither the Borrower nor any Subsidiary of the Borrower 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 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.
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4.12 Plans; Multiemployer Plans.
As of the Effective Date, 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 Administrative
Agent and each Lender as required by Section 7.2(d). As of December 31, 1998,
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 Administrative
Agent and the Lenders (i) copies of the audited Consolidated Balance Sheet of
the Borrower and its Consolidated Subsidiaries as of December 31, 1998, and the
related Consolidated Statements of Operations, Stockholders' Equity and Cash
Flows for the Borrower and its Consolidated Subsidiaries for the five months
ended December 31, 1998 and the 12 months ended July 31, 1999, and (ii) the
Consolidated Statements of Income and Cash Flows for the Borrower and its
Consolidated Subsidiaries for the fiscal quarters of the Borrower ending March
31, 1999, June 30, 1999 and September 30, 1999, certified by its Chief Financial
Officer (collectively, 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 Consolidated
Subsidiaries as of the dates and for the periods indicated therein 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 of
the Borrower 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 June 30,
1999 through the Effective Date there has been no material adverse change in the
financial condition or business of the Borrower and its Subsidiaries taken as a
whole.
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. There
are no unpaid or outstanding real estate or similar taxes or assessments on or
against any Real Property other than (i) real estate or other taxes or
assessments that are not yet due and payable, and (ii) such taxes as the
Borrower or any Subsidiary of the Borrower is contesting in good faith or which
individually or in the aggregate could not reasonably be expected to have a
Materially Adverse Effect. There are no pending eminent domain proceedings
against any Real Property, and, to the knowledge of the Borrower, no such
proceedings are presently threatened or contemplated by any Governmental
Authority
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against any Real Property, which individually or in the aggregate could
reasonably be expected to have a Material Adverse Effect. None of the Real
Property is now damaged as a result of any fire, explosion, accident, flood or
other casualty which individually or in the aggregate could reasonably be
expected to have a Material Adverse Effect.
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,
in each case that are material and necessary for the conduct of its business,
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 of its Subsidiaries is in compliance
with the requirements of all applicable Environmental Laws except for such
non-compliance which could not, either individually or in the aggregate, be
reasonably expected to have a Material Adverse Effect.
(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 violation, in the case of either (i), (ii) or (iii)
could, either individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(c) Neither the Borrower nor any of its Subsidiaries (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 of the Borrower) or the
release or threatened release of any Hazardous Substance into the environment
which, in either case, could, either individually or
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in the aggregate, reasonably be expected to have 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 of the Borrower) or the release or threatened
release of any Hazardous Substance into the environment which, in either case,
could, either individually or in the aggregate, reasonably be expected to have 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 of the Borrower) or a release
or threatened release of any Hazardous Substance into the environment for which
the Borrower or any Subsidiary of the Borrower is or may be liable the results
of which could, in either case, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, or (iv) has received
notice that the Borrower or any Subsidiary of the Borrower is or may be liable
to any Person under any Environmental Law which liability could, either
individually or in the aggregate, reasonably be expected to have 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 of its Subsidiaries 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 of its Subsidiaries 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 adversely affect or impair the
revenue or cash flow of the Borrower or such Subsidiary in such a manner as
could reasonably be expected to have a Material Adverse Effect, or materially
and adversely affect or impair the ability of the Borrower or such Subsidiary to
perform its obligations under the Loan Documents. The Borrower does not
presently anticipate that future expenditures by the Borrower or any Subsidiary
of the Borrower 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 Solvency.
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On the Effective Date and immediately following the making of
each Loan, and after giving effect to the application of the proceeds of such
Loan: (a) the fair value of the assets of the Borrower and its Subsidiaries,
taken as a whole, at a fair valuation, will exceed the debts and liabilities,
including Contingent Obligations, of the Borrower and its Subsidiaries, taken as
a whole; (b) the present fair saleable value of the property of the Borrower and
its Subsidiaries, taken as a whole, will be greater than the amount that will be
required to pay the probable liability of the debts and other liabilities,
subordinated, contingent or otherwise of the Borrower and its Subsidiaries, as
such debts and other liabilities become absolute and matured; (c) the Borrower
and its Subsidiaries, taken as a whole, will be able to pay its debts and
liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (d) the Borrower and its
Subsidiaries, taken as a whole, will not have unreasonably small capital with
which to conduct the business in which it is engaged as such business is now
conducted and is proposed to be conducted hereafter.
4.20 REIT Status.
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 compliance in all material
respects with all Code sections applicable to REITs generally and the
regulations and rulings issued thereunder.
4.21 Rent Roll and List of Unencumbered Assets.
A list of all the Unencumbered Assets of the Borrower as of
the date of this Agreement is attached hereto as Schedule 4.21. Upon the request
of the Administrative Agent, Borrower will provide the Administrative Agent with
a Rent Roll.
4.22 [Intentionally Omitted].
4.23 Operation of Business.
The Borrower is a self-advised, and self-managed REIT.
4.24 No Misrepresentation.
No representation or warranty contained herein and no
certificate or report furnished or to be furnished by the Borrower or any
Subsidiary of the Borrower 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.
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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.
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(a) The Administrative Agent shall have received a
certificate, dated the first Borrowing Date, of the Secretary or Assistant
Secretary of the Borrower substantially in the form of Exhibit I (i) attaching a
true and complete copy of the resolutions of its Board of Directors authorizing
the execution and delivery of the Loan Documents by the Borrower and the
performance of the Borrower's obligations thereunder, and of all other documents
evidencing other necessary action (in form and substance reasonably satisfactory
to the Administrative Agent) taken by it to authorize the Loan Documents and the
transactions contemplated thereby, (ii) attaching a true and complete copy of
its articles of incorporation and by-laws, (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) certifying that said
corporate charter and by-laws are true and complete copies thereof, are in full
force and effect and have not been amended or modified.
(b) The Administrative Agent shall have received a
certificate, dated the first Borrowing Date, of the Secretary or Assistant
Secretary of each Subsidiary Guarantor substantially in the form of Exhibit J
(i) attaching a true and complete copy of the resolutions of its Board of
Directors or Trustees, as the case may be, authorizing its execution and
delivery of the Guaranty and the performance of its obligations thereunder, and
of all other documents evidencing other necessary action (in form and substance
reasonably satisfactory to the Administrative Agent) taken by it to authorize
the Guaranty and the transactions contemplated thereby, (ii) attaching a true
and complete copy of its articles of incorporation or corporate charter or
declaration of trust and, if applicable, by-laws, (iii) setting forth the
incumbency of its officer or officers who may sign the Guaranty, including
therein a signature specimen of such officer or officers, and (iv) certifying
that said articles of incorporation, corporate charter or declaration of trust
and, if applicable, by-laws, are true and complete copies thereof, is in full
force and effect and has not been amended or modified.
(c) The Administrative Agent shall have received certificates
of good standing for the Borrower from the Maryland State Department of
Assessments and Taxation and for each Subsidiary Guarantor from the Secretary of
State for the State in which such Subsidiary Guarantor is incorporated, and for
the Borrower from each jurisdiction other than Maryland in which the Borrower is
qualified to do business, provided that such Secretaries issue such certificates
with respect to the Borrower. Notwithstanding the Administrative Agent's
acceptance on the Effective Date of certificates of good standing obtained in
connection with the closing under the Existing Credit Agreements, the Borrower
shall provide the Administrative Agent with current copies of such certificates
of good standing within fifteen (15) days of the Effective Date.
5.2 This Agreement.
The Administrative Agent shall have received counterparts of
this Agreement signed by each of the parties hereto (or receipt by the
Administrative Agent from a party hereto of a facsimile signature page signed by
such party which shall have agreed to promptly provide the Administrative Agent
with originally executed counterparts hereof).
5.3 Notes.
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The Administrative Agent shall have received the Notes, duly
executed by an Authorized Signatory of the Borrower.
5.4 Guaranty.
The Administrative Agent shall have received counterparts of
the Guaranty signed by each of the Subsidiary Guarantors (or receipt by the
Administrative Agent from a party hereto of a facsimile signature page signed by
such party which shall have agreed to promptly provide the Administrative Agent
with originally executed counterparts hereof).
5.5 [Intentionally Omitted].
5.6 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 Administrative Agent shall have received a
certificate of an Authorized Signatory of the Borrower to the foregoing effects.
5.7 Opinion of Counsel to the Borrower.
The Administrative Agent shall have received an opinion of (i)
Hogan & Hartson, L.L.P., outside counsel to the Borrower, and (ii) Steven F.
Siegel, Esq., in-house counsel to the Borrower, and (iii) counsel to each
Subsidiary Guarantor, each addressed to the Administrative Agent and the
Lenders, and each dated the first Borrowing Date, covering the matters set forth
in Exhibit K.
5.8 Fees.
The Facility Fee, to the extent then due and payable, and all
fees payable to the Administrative Agent, the Lead Arranger and the Lenders
shall have been paid.
5.9 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.
5.10 [Intentionally Omitted].
6. CONDITIONS OF LENDING - ALL LOANS.
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The obligation of each Lender to make any Loan is subject to the
satisfaction of the following conditions precedent as of the date of such Loan:
6.1 Compliance.
On each Borrowing Date and after giving effect to the Loans to
be made or created, (a) the Borrower shall be in compliance with all of the
terms, covenants and conditions hereof, (b) there shall not exist and be
continuing any 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 (except for representations and warranties that speak as of a
specific date, which need only be true and correct as of such date), and (d) the
aggregate outstanding principal balance of the Loans shall not exceed the Total
Commitment Amount. Each notice requesting a Loan shall be deemed to constitute a
representation and warranty by the Borrower on the date thereof 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 Administrative Agent on or before the
applicable Borrowing Date shall have been executed and shall have been delivered
at the office of the Administrative Agent set forth in Section 11.2 on or before
such Borrowing Date.
6.3 Borrowing Request.
With respect to each borrowing of a Loan, the Administrative
Agent shall have received a Borrowing Request duly executed by an Authorized
Signatory of the Borrower.
6.4 Documentation and Proceedings.
All corporate 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
Administrative Agent and the Administrative Agent shall have received all
information and copies of all documents which the Administrative 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 or performed by
the Borrower and to have happened on or prior to such Borrowing Date and which
are necessary for the continued effectiveness of the Loan Documents,
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shall have been done or 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 Administrative Agent with
respect to the applicable Borrowing Date, there shall have been delivered to the
Administrative Agent favorable supplementary opinions of counsel to the
Borrower, addressed to the Administrative Agent and the Lenders and dated such
Borrowing Date, covering such matters incident to the transactions contemplated
herein as the Administrative Agent may reasonably request.
6.8 Other Documents.
The Administrative Agent shall have received such other
documents and information with respect to the Borrower and its Subsidiaries or
the transactions contemplated hereby as the Administrative Agent or the Lenders
shall reasonably request.
7. AFFIRMATIVE COVENANTS.
The Borrower agrees that, so long as any Loan remains outstanding and
unpaid, any other amount is owing under any Loan Document to any Lender or the
Administrative Agent, or any Lender shall have any obligation to make or
maintain any Loan, 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 Administrative Agent and each
Lender:
(a) Annual Statements. 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 as at the end of such fiscal year, together with the
related Consolidated Statements of Income, 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 Income, 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 Consolidated financial statements, and (ii) include the
opinion of such Accountants that such Consolidated financial statements present
fairly, in all material respects,
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the Consolidated financial position of the Borrower and its Subsidiaries, as of
the date of such Consolidated 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) Annual Operating Statements and Rent Roll. As soon as
available, but in any event within 60 days after the end of each fiscal year of
the Borrower, copies of (i) the operating statements (in a form reasonably
satisfactory to the Administrative Agent) for all Real Property of the Borrower,
and (ii) a Rent Roll, each of which shall be certified by the Chief Financial
Officer to be true, correct and complete in all material respects.
(c) Quarterly Statements. 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 unaudited Consolidated Balance Sheet of the Borrower as
at the end of each such quarterly period, together with the related unaudited
Consolidated Statements of Income and Cash Flows for the elapsed portion of the
fiscal year through the end of such period, 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 as being true, correct and
complete in all material respects and as presenting fairly the Consolidated
financial condition and the Consolidated results of operations of the Borrower
and its Subsidiaries.
(d) Quarterly Information Regarding Unencumbered Assets. As
soon as available, but in any event 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 list of all the Unencumbered Assets owned by the
Borrower, any wholly owned Subsidiary of the Borrower and each DownREIT
Partnership as of the last day of such fiscal quarter setting forth the
following information with respect to each such Unencumbered Asset as of such
date: (i) asset type (i.e., retail shopping center or residential apartment
building); (ii) location; (iii) percentage of the Unencumbered Asset owned by
the Borrower, any wholly owned Subsidiary of the Borrower and each DownREIT
Partnership; and (iv) the Net Operating Income for such Unencumbered Asset
during such fiscal quarter.
(e) Compliance Certificate. 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, setting forth in reasonable detail the
computations demonstrating the Borrower's compliance with the provisions of
Sections 8.12, 8.13, 8.14, 8.15, 8.16 and 8.17.
(f) Other Information. Such other information as the
Administrative Agent or any Lender may reasonably request from time to time.
7.2 Certificates; Other Information.
Furnish to the Administrative Agent and each Lender:
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(a) Defaults Under Other Indebtedness. Prompt written notice
if: (i) any Indebtedness of the Borrower or any Subsidiary of the Borrower is
declared or shall become due and payable prior to its stated maturity, or called
and not paid when due, or (ii) a default that extends beyond any applicable
notice or grace period 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 of the Borrower 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, $7,500,000 or more;
(b) Action of Governmental Authorities. Prompt written notice
of: (i) any citation, summons, subpoena, order to show cause or other document
naming the Borrower or any Subsidiary of the Borrower 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 Intellectual Property, license, permit,
franchise or other authorization issued to the Borrower or any Subsidiary of the
Borrower by any Person or Governmental Authority, which lapse or termination
could reasonably be expected to have a Material Adverse Effect; 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 refusal could reasonably be expected to have a Material
Adverse Effect;
(c) SEC or other Governmental Reports and Filings. Promptly
upon becoming available, copies of all regular, periodic or special reports
which the Borrower or any Subsidiary of the Borrower may now or hereafter be
required to file with or deliver to any securities exchange or the Securities
and Exchange Commission, or any other Governmental Authority succeeding to the
functions thereof, pursuant to the Securities Exchange Act of 1934, as amended.
(d) ERISA Information. Promptly, and in any event within ten
Business 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
setting forth details with respect to 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,
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on or before its due date, a required installment under Section 412(m)
of the Code or Section 302(e) of ERISA or the disqualification of such
Plan for purposes of Section 4043(b)(1) of ERISA, shall be a reportable
event regardless of the issuance of any waivers in accordance with
Section 412(d) of the Code) and any request for a waiver under Section
412(d) of the Code for any Plan;
(ii) the distribution under Section 4041 of ERISA of
a notice of intent to terminate any Plan or any action taken by the
Borrower or any ERISA Affiliate to terminate any Plan;
(iii) the institution by the PBGC of proceedings
under Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Plan, or the receipt by the Borrower or
any ERISA Affiliate of a notice from a Multiemployer Plan that such
action has been taken by the PBGC with respect to such Multiemployer
Plan;
(iv) the complete or partial withdrawal from a
Multiemployer Plan by the Borrower or any ERISA Affiliate that results
in liability under Section 4201 or 4204 of ERISA (including the
obligation to satisfy secondary liability as a result of a purchaser
default) or the receipt of the Borrower or any ERISA Affiliate of
notice from a Multiemployer Plan that it is in reorganization or
insolvency pursuant to Section 4241 or 4245 of ERISA or that it intends
to terminate or has terminated under Section 4041A of ERISA;
(v) the institution of a proceeding by a fiduciary of
any Multiemployer Plan against the Borrower or any ERISA Affiliate to
enforce Section 515 of ERISA, which proceeding is not dismissed within
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
material 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) ERISA Reports. Promptly after the request of the
Administrative 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
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Multiemployer Plan, such annual reports shall be furnished only if they are
available to the Borrower or any ERISA Affiliate;
(f) Notice of Proposed Sales or Transfers. Quarterly, on each
date that a Compliance Certificate is to be delivered pursuant to Section
7.1(e), a list of all sales or transfers of any Unencumbered Assets (including
any agreements for the sale or transfer of any Unencumbered Asset entered into
during such fiscal quarter but not yet consummated); provided that, if during
any such fiscal quarter of the Borrower any sale or transfer of an Unencumbered
Asset, which combined with all other such sales or transfers of Unencumbered
Assets during such fiscal quarter, would exceed $100,000,000 in the aggregate,
then the Borrower shall promptly provide such list and a certification of the
Chief Financial Officer as to the Borrower's compliance with Sections 8.12 and
8.16;
(g) Casualties or Condemnations. Prompt written notice of any
casualty or condemnation of any Real Property, if such casualty or condemnation
could reasonably be expected to have a Material Adverse Effect;
(h) Environmental Law Notices. Prompt written notice of any
order, notice, claim or proceeding received by, or brought against, the Borrower
or any Subsidiary of the Borrower, or with respect to any of the Real Property,
under any Environmental Law, which could reasonably be expected to have a
Material Adverse Effect;
(i) Management Letters and Reports. Promptly after the same
are received by the Borrower, copies of all management letters and similar
reports provided to the Borrower by the Accountants;
(j) New Subsidiaries. Notice of any Subsidiary that, as of the
end of any fiscal quarter of the Borrower, satisfies the criteria in Section
7.11 with respect to Required Additional Guarantors, such notice to be delivered
to the Administrative Agent concurrently with the delivery of the Compliance
Certificate with respect to such quarter;
(k) Changes in Name or Fiscal Year. Prompt written notice of
(i) any change in the Borrower's name, with copies of all filings with respect
to such name change attached thereto, and (ii) any change in its fiscal year
from that in effect on the Effective Date.
(l) Defaults or Events of Default. Prompt written notice if
there shall occur and be continuing a Default or an Event of Default; and
(m) Other Information. Such other information as the
Administrative Agent or any Lender shall reasonably request from time to time.
7.3 Legal Existence.
(a) Borrower's Legal Existence. Maintain its status as a
Maryland corporation in good standing in the State of Maryland and in each other
jurisdiction in which the failure so to
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do could reasonably be expected to have a Material Adverse Effect.
(b) Legal Existence of Subsidiaries. Cause each Subsidiary of
the Borrower to maintain its status as a real estate investment trust, business
trust, corporation, limited liability company or partnership, as the case may
be, in good standing in its state of formation and in each other jurisdiction in
which the failure so to do either (i) would result in the occurrence of a
Default, or (ii) could reasonably be expected to have a Material Adverse Effect.
7.4 Taxes.
Pay and discharge when due, and cause each Subsidiary of the
Borrower 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, unless and to the extent only that such Taxes, assessments,
governmental charges, license fees and levies shall be contested in good faith
and by appropriate proceedings diligently conducted by the Borrower or such
Subsidiary and such contest has the effect of staying the collection of any Lien
from any Property of the Borrower or its Subsidiaries arising from such
non-payment, and provided that the Borrower shall give the Administrative Agent
prompt notice of such contest and that such reserve or other appropriate
provision as shall be required in accordance with GAAP (as determined by the
Accountants) shall have been made therefor.
7.5 Insurance.
Maintain, and cause each Subsidiary of the Borrower 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 Administrative Agent within 10
Business Days after request therefor a detailed list of such insurance then in
effect, stating the names of the carriers thereof, the policy numbers, the
insureds thereunder, the amounts of insurance, dates of expiration thereof, and
the Property and risks covered thereby, together with a certificate of the Chief
Financial Officer certifying that in the opinion of such officer such insurance
complies with the obligations of the Borrower under this Section, and is in full
force and effect.
7.6 Payment of Indebtedness and Performance of Obligations.
Pay and discharge when due, and cause each Subsidiary of the
Borrower to pay and discharge, all lawful Indebtedness, obligations and claims
for labor, materials and supplies or otherwise which, if unpaid, (i) would
result in a Default, or (ii) could reasonably be expected to have a Material
Adverse Effect, unless (with respect to clause (ii)) such Indebtedness shall be
contested in good faith and by appropriate proceedings diligently conducted by
the Borrower or such Subsidiary and such contest has the effect of staying the
collection of any Lien from any
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Property of the Borrower or its Subsidiaries arising from such non-payment, and
provided that the Borrower shall give the Administrative Agent prompt notice of
such contest and that such reserve or other appropriate provision as shall be
required in accordance with GAAP (as determined by the Accountants) shall have
been made therefor.
7.7 Maintenance of Property; Environmental Investigations.
(a) 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 of the Borrower so to do, all Property
necessary to the operation of the Borrower's or such Subsidiary's business.
(b) In the event that the Administrative 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 reasonably be expected to have a Material
Adverse Effect, promptly conduct and complete (at the Borrower's expense) all
investigations, studies, samplings and testings relative to such Hazardous
Substances as the Administrative Agent may reasonably request.
7.8 Observance of Legal Requirements.
(a) Observe and comply in all respects, and cause each
Subsidiary of the Borrower 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, except (i) where noncompliance with any
of the foregoing (individually or in the aggregate) could not reasonably be
expected to have a Material Adverse Effect, or (ii) such thereof as shall be
contested in good faith and by appropriate proceedings diligently conducted by
it and such contest has the effect of staying the collection of any Lien from
any Property of the Borrower or its Subsidiaries arising from such
noncompliance, and provided that the Borrower shall give the Administrative
Agent prompt notice of such contest and that such reserve or other appropriate
provision as shall be required in accordance with GAAP (as determined by the
Accountants) shall have been made therefor.
(b) Use and operate all of its facilities and property in
compliance with all Environmental Laws and cause each of its Subsidiaries so to
do, and keep all necessary permits, approvals, certificates, licenses and other
authorizations relating to environmental matters in effect and remain in
compliance therewith and cause each of its Subsidiaries so to do, and handle all
Hazardous Materials in compliance with all applicable Environmental Laws and
cause each of its Subsidiaries so to do, except where noncompliance with any of
the foregoing (individually or in the aggregate) could not reasonably be
expected to have a Material Adverse Effect.
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
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in relation to its business and activities and permit representatives of the
Administrative 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 of the Borrower to
maintain, in full force and effect, all material licenses, franchises,
Intellectual Property, permits, authorizations and other rights as are necessary
for the conduct of its business.
7.11 Required Additional Guarantors.
At any time after the date hereof, and with respect to any
Subsidiary of the Borrower, whether presently existing or hereafter formed or
acquired (other than Excel Realty Partners, L.P. and E. H. Properties, L.P.)
which is not a Subsidiary Guarantor at such time, cause such Subsidiary to
execute and deliver a Guaranty to the Administrative Agent, for the benefit of
the Lenders, promptly after the Administrative Agent's request therefor, duly
executed by such Subsidiary (together with the certificates and attachments
described in Section 5.1(b) and (c) with respect to such Subsidiary and an
opinion of counsel in the form required pursuant to Section 5.7(iii)) if at such
time such Subsidiary owns Property having a book value of $75,000,000 or more.
Notwithstanding the foregoing, the foregoing book value conditions of this
Section shall not be applicable from and after the occurrence of, and during the
continuance of, an Event of Default (it being understood that at such time, the
Administrative Agent can require any Subsidiary of the Borrower which has not
executed a Guaranty to immediately comply with requirements of this Section).
7.12 REIT Status; Operation of Business.
(a) Maintain its status under Sections 856 et seq. of the Code
as a REIT.
(b) Carry on all business operations of the Borrower as a
self-advised, self-managed REIT.
(c) Manage, or cause one or more of its Subsidiaries at all
times to manage, at least 90% of all Properties of the Borrower and its
Subsidiaries.
7.13 [Intentionally Omitted].
8. NEGATIVE COVENANTS.
The Borrower agrees that, so long as any Loan remains outstanding and
unpaid, any other amount is owing under any Loan Document to any Lender or the
Administrative Agent, or any
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Lender shall have any obligation to make or maintain any Loan, 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
of the Borrower so to do, except (i) Liens for Taxes, assessments or similar
charges incurred in the ordinary course of business which are not delinquent or
the existence of which do not otherwise violate the representations in Section
7.4, (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, use restrictions, exclusive use
limitations in any lease of Real Property, reciprocal easement agreements, minor
defects, irregularities, and other similar restrictions and encumbrances
affecting Real Property, which do not materially adversely affect the value of
such Real Property or the financial condition of the Borrower or such Subsidiary
of the Borrower or materially impair its use for the operation of the business
of the Borrower or such Subsidiary, (v) statutory Liens arising by operation of
law such as mechanics', materialmen's, carriers', warehousemen's liens incurred
in the ordinary course of business which are not delinquent or the existence of
which do not otherwise violate the representations in Section 7.6, (vi) Liens
arising out of judgments or decrees which are being contested in accordance with
Section 7.8 or the existence of which do not otherwise violate the
representations in Section 7.8 or result in a default pursuant to Section
9.1(j), (vii) mortgages on Real Property, provided that the existence of such
mortgages, and the indebtedness secured thereby, does not cause the Borrower to
be in violation of Section 8.12 or 8.16, (viii) Liens in favor of the Borrower
or any Subsidiary Guarantor, provided that the Indebtedness secured by any such
Lien is held by the Borrower or such Subsidiary Guarantor, (ix) the interests of
lessees and lessors under leases of real or personal property made in the
ordinary course of business which could not reasonably be expected (individually
or in the aggregate) to have a Material Adverse Effect and (x) Liens not
otherwise permitted by clauses (i) through (ix) of this Section which do not in
the aggregate exceed $5,000,000.
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 (in one transaction or a series of transactions), or permit any
Subsidiary Guarantor of the Borrower so to do, or liquidate or dissolve, except
(i) the merger or consolidation of any Subsidiary Guarantor of the Borrower into
or with the Borrower, (ii) the merger or consolidation of any two or more
Subsidiary Guarantors, or (iii) the merger or consolidation of the Borrower or
Subsidiary Guarantor with any other Person, provided that (A) the Borrower or
such Subsidiary Guarantor is the surviving entity in such merger or
consolidation, (B) the total book value of the assets of the entity which is
merged into or consolidated with the Borrower or such Subsidiary Guarantor is
less than 20% of the total book value of the assets of the Borrower immediately
following such merger or
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consolidation, (C) immediately prior to such merger or consolidation the
Borrower shall have provided to the Administrative Agent and each of the Lenders
a Compliance Certificate prepared on a pro-forma basis (and adjusted in the best
good faith estimate of the Borrower, based on the advice of the Accountants, to
give effect to such merger or consolidation) demonstrating that after giving
effect to such merger or consolidation, no Default shall exist with respect to
any of the covenants set forth in Sections 8.12, 8.13, 8.14, 8.15, 8.16 and 8.17
and (D) after giving effect to such merger or consolidation, no Event of Default
shall exist.
(b) Sell, transfer, master lease or dispose of any of its
Property, either directly or indirectly, except that if at the time thereof and
immediately after giving effect thereto, no Default shall have occurred, (i) any
Subsidiary of the Borrower may sell, transfer, master lease or otherwise dispose
of its assets to the Borrower or to any other Subsidiary, and (ii) the Borrower
or any Subsidiary of the Borrower may sell Property in an arm's length
transaction (or, if the transaction involves an Affiliate of the Borrower or a
Subsidiary of the Borrower, if the transaction complies with Section 8.8) for
the fair market value thereof, as reasonably determined by the Borrower,
provided that such sale could not reasonably be expected to have a Material
Adverse Effect and provided further that for any fiscal year of the Borrower,
any sale, transfer, master lease or disposition of Property in reliance on this
clause (ii) which when combined with all other such sales, transfers, master
leases or dispositions made in such fiscal year shall not exceed 25% of the
total book value of all Property of the Borrower and its Subsidiaries determined
as of the first day of such fiscal year.
8.3 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 of the
Borrower so to do, (all of which are sometimes referred to herein as
"Investments") except the following (to the extent that maintaining any thereof
would not at any time violate the requirements of Section 856(c) of the Code):
(a) demand deposits, certificates of deposit, bankers
acceptances and domestic and eurodollar time deposits with any Lender, or any
other commercial bank, trust company or national banking association
incorporated under the laws of the United States or any State thereof and having
undivided capital, surplus and undivided profits exceeding $500,000,000 and a
long term debt rating of A or A2, as determined, respectively, by S&P and
Moody's;
(b) short-term direct obligations of the United States of
America or agencies thereof whose obligations are guaranteed by the United
States of America;
(c) securities commonly known as "commercial paper" issued by
a corporation organized and existing under the laws of the United States or any
State thereof which at the time of purchase are rated by S&P or Moody's at not
less than "A1" or "P1," respectively;
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(d) mortgage-backed securities guaranteed by the Governmental
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 S&P or Moody's at not less than "Aa" or "AA,"
respectively;
(e) repurchase agreements having a term not greater than 90
days and fully secured by securities described in the foregoing paragraph (b) or
(d) with banks described in the foregoing paragraph (a) or with financial
institutions or other corporations having total assets in excess of $50,000,000;
(f) shares of "money market funds" registered with the SEC
under the Investment Company Act of 1940 which maintain a level per-share value,
invest principally in the investments described in one or more of the foregoing
paragraphs (a) through (e) and have total assets of in excess of $50,000,000;
(g) Real Property and loans secured by mortgages on Real
Property;
(h) equity investments in any Person (other than Subsidiaries)
and notes receivable investments in any Person (other than Subsidiaries), the
aggregate principal amount of which (combined with any other equity investments
and notes receivable investments in any Person permitted pursuant to this
paragraph (h)) do not exceed 25% of the Total Capital of the Borrower;
(i) Investments (debt or equity) in Subsidiaries of the
Borrower;
(j) investments in respect of (1) equipment, inventory and
other tangible personal property acquired in the ordinary course of business,
(2) current trade and customer accounts receivable for services rendered in the
ordinary course of business, (3) advances to employees for travel expenses other
company-related expenses, and (4) prepaid expenses made in the ordinary course
of business;
(k) Hedging Agreements made in connection with any
Indebtedness;
(l) repurchases of any common or preferred stock or other
equity interests (or securities convertible into such interests) in the Borrower
or any Subsidiary that have been previously issued by the Borrower or such
Subsidiary, which do not exceed, in any calendar year, (1) 10% of the
outstanding shares of common or preferred stock or other equity interests in
Borrower or such Subsidiary, as applicable, as of the date hereof, plus (2) 10%
of any additional shares of common or preferred stock or other equity interests
in Borrower or such Subsidiary, as applicable, issued after the date hereof;
(m) redemptions of preferred stock of the Borrower in
accordance with the terms thereof;
(n) redemptions for cash or common Stock of the Borrower of
units of limited
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partner interests or limited liability company interests in a DownREIT
Partnership;
(o) loans to employees of the Borrower, provided that all such
loans in the aggregate do not at any time exceed $15,000,000 in the aggregate;
and
(p) any other Investments not included in paragraphs (a)
through (o) deemed appropriate by the Borrower, provided that in no event shall
Investments made in reliance upon the exception set forth in this paragraph (p)
exceed $50,000,000 at any one time;
8.4 Business Changes.
Change in any material respect the nature of the business of
the Borrower or its Subsidiaries as conducted on the Effective Date.
8.5 Amendments to Organizational Documents.
Amend or otherwise modify its corporate charter or by-laws in
any way (other than in connection with the issuance or classification of
preferred stock of the Borrower) which would adversely affect the interests of
the Administrative Agent and the Lenders under any of the Loan Documents, or
permit any Subsidiary of the Borrower to amend its organizational documents in a
manner which could have the same result.
8.6 Bankruptcy Proceedings.
Institute against the Administrative Agent or any Lender, or
join any other Person in instituting against the Administrative Agent or any
Lender, any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding or other proceeding under any federal or state bankruptcy or similar
law, for one year and a day after the payment or prepayment in full of the
Indebtedness due hereunder.
8.7 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 of the Borrower so to do, except for sale
and leasing transactions described herein for which the combined selling price
of all Property subject to all such transactions does not exceed $50,000,000 in
the aggregate.
8.8 Transactions with Affiliates.
Become a party to any transaction in an amount that exceeds
$60,000 with an Affiliate unless the terms and conditions relating thereto (i)
have been approved by a majority of the disinterested directors of the Borrower,
(ii) have been approved by a majority of votes cast by the stockholders of the
Borrower, or (iii) are fair and reasonable to the Borrower, or permit any
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Subsidiary of the Borrower so to do.
8.9 Issuance of Additional Capital Stock by Subsidiary Guarantors.
Permit any Subsidiary Guarantor to issue any additional Stock
or other equity interest of such Subsidiary Guarantor, other than the issuance
of partnership or limited liability company units in a DownREIT Partnership
which is a Subsidiary Guarantor, provided that such units are issued in
consideration of the contribution to the DownREIT Partnership of assets
qualifying as "real estate assets" under Section 856(c) of the Code.
8.10 Hedging Agreements.
Enter into, or permit any of its Subsidiaries so to do, any
Hedging Agreement, other than Hedging Agreements entered into in the ordinary
course of business to hedge or mitigate interest rate risks to which the
Borrower or any Subsidiary of the Borrower is exposed in the conduct of its
business or the management of its liabilities.
8.11 Restricted Payments.
(a) Permit the Borrower to make Restricted Payments, except
that:
(i) except as set forth in clause (ii) below, the
Borrower may declare and pay dividends payable with respect to its
equity securities in any fiscal quarter of the Borrower if after giving
effect to such dividend, such dividend, when added to the amount of all
other such dividends paid in the same fiscal quarter and the preceding
three (3) fiscal quarters, would not exceed the greater of (A) ninety
percent (90%) of its Funds from Operations for the four consecutive
fiscal quarters ending prior to the quarter in which such dividend is
paid or (B) the minimum amount of such dividends required under the
Code to enable the Borrower to continue to maintain its status under
the Code as a REIT, as evidenced (in the case of clause (B)) by a
certification of Chief Financial Officer containing calculations in
reasonable detail satisfactory in form and substance to Administrative
Agent;
(ii) if an Event of Default under Section 9.1(a) or
(b) has occurred and is continuing, the Borrower may declare and pay
dividends with respect to its equity securities which shall not exceed
the minimum such dividends required under the Code to enable the
Borrower to continue to maintain its status under the Code as a REIT,
as evidenced by a certification of Chief Financial Officer containing
calculations in reasonable detail satisfactory in form and substance to
Administrative Agent;
(iii) the Borrower may effect Stock repurchases
to the extent permitted by Section .3(l);
(iv) the Borrower may effect "cashless exercises" of
options granted under the Borrower's stock option plans;
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(v) the Borrower may distribute rights or equity
securities under any rights plan adopted by the Borrower; and
(vi) the Borrower may declare and pay dividends (or
effect Stock splits or reverse Stock splits) with respect to its equity
securities payable solely in additional shares of its equity
securities.
8.12 Unencumbered Assets Coverage Ratio.
Permit the Unencumbered Assets Coverage Ratio to be less than
2.0:1.0 at any time.
8.13 Fixed Charge Coverage Ratio.
Permit the Fixed Charge Coverage Ratio to be less than
1.75:1.0 at any time.
8.14 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 the sum of (i)
$1,200,000,000, plus (ii) 80% of the aggregate net proceeds received by the
Borrower from and after the Effective Date in connection with the issuance of
any capital stock of the Borrower.
8.15 Maximum Total Indebtedness.
Permit at any time either (i) all Consolidated Total
Indebtedness at such time to be more than 55% of Total Capital at such time, or
(ii) the Consolidated Total Indebtedness secured by mortgages on Real Property
owned by the Borrower and its Subsidiaries at such time to exceed 40% of Total
Capital at such time.
8.16 Liabilities to Assets Ratio.
Permit, at any time, the portion of the Consolidated Total
Indebtedness consisting of Consolidated unsecured Indebtedness of the Borrower
and its Subsidiaries at such time to be more than 50% of Unencumbered Asset
Value at such time.
8.17 Maximum Book Value of Ancillary Assets.
Permit the book value of the Ancillary Assets at any time to
be more than 20% of the book value of all assets of the Borrower and its
Subsidiaries on a Consolidated basis at such time. For purposes of this Section
8.17 the book value of any Ancillary Asset not owned 100%, directly or
indirectly, by the Borrower or any of its Subsidiaries shall be adjusted by
multiplying the same by the Borrower's Interest in such Ancillary Asset during
the fiscal quarter of the Borrower ending as of any date of determination of
such book value.
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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, expenses or other charges payable under any Loan
Document within five Business Days of the date when due and payable; or
(c) The use of the proceeds of any Loan in a manner
inconsistent with or in violation of Section 2.15; or
(d) The failure of the Borrower to observe or perform any
covenant or agreement contained in Section 7.3, 7.12(a), 7.12(b), or 8 (other
than Section 8.1, as to which the provisions of paragraph (e) below shall
apply); 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 notice thereof from the
Administrative Agent to the Borrower; 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 of the Borrower, whether as principal,
guarantor, surety or other obligor, for the payment of any Indebtedness shall
(i) become or shall be declared to be due and payable prior to the expressed
maturity thereof, or (ii) shall not be paid when due or within any grace period
for the payment thereof, or (iii) shall be subject, by the holder of the
obligation evidencing such Indebtedness, to acceleration (after the expiration
of any applicable notice and cure periods) prior to the expressed maturity
thereof, and the sum of all such Indebtedness which is the subject of paragraphs
(i) - (iii) inclusive exceeds (A) at any time, in the case of Indebtedness other
than Non-Recourse Indebtedness, $7,500,000, and (B) in any calendar year, in the
case of Non-Recourse Indebtedness, $50,000,000 in the aggregate during such
year; or
(h) The Borrower or any Subsidiary Guarantor of the Borrower
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
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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, or (xii) take any formal action for the purpose of effecting any of the
foregoing; or
(i) 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 Guarantor 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 Guarantor 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 Guarantor or of any substantial part
of the Property thereof, or (iv) ordering the winding up or liquidation of the
affairs of the Borrower or any Subsidiary Guarantor, and any such decree or
order continues unstayed and in effect for a period of 60 days; or
(j) Judgments or decrees against the Borrower or any
Subsidiary of the Borrower aggregating in excess of $5,000,000 shall not be
paid, stayed on appeal, discharged, bonded or dismissed for a period of 45 days;
or
(k) 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
(l) 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
(m) There shall occur a Change of Control; or
(n) If any Loan Document (i) is determined by any court or
Governmental Authority to be illegal, invalid or unenforceable in accordance
with its terms, or (ii) shall be canceled, terminated, revoked or rescinded
other than in accordance with its terms or with the
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written consent or approval of the Lenders; or
(o) (i) Any Subsidiary Guarantor shall fail to comply in any
material respect with any covenant made by it in the Guaranty or if at any time
any representation or warranty made by any Subsidiary Guarantor in the Guaranty
or in any other document, statement or writing made to the Administrative Agent,
the Lead Arranger or the Lenders shall prove to have been incorrect or
misleading in any material respect when made, or (ii) if a default by any
Subsidiary Guarantor shall occur under the Guaranty after the expiration of any
applicable notice and grace period; or (iii) if any Subsidiary Guarantor shall
revoke or attempt to revoke, contest, commence any action or raise any defense
(other than the defense of payment) against its obligations under the Guaranty;
or
(p) There shall occur and be continuing an Event of Default
under and as defined in the Existing Credit Agreements.
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 (h) or (i) above, the 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 Administrative 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 Administrative Agent may, and upon the direction of
the Required Lenders shall, by notice to the Borrower, declare the Commitments
to be terminated forthwith, whereupon the Commitments shall immediately
terminate; and (ii) with the consent of the Required Lenders, the Administrative
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 Administrative Agent may, and upon the direction of the Required Lenders
shall, exercise any and all remedies and other rights provided pursuant to the
Loan Documents. Except as otherwise provided in this Section, presentment,
demand, protest and all other notices of any kind are hereby expressly waived.
The Borrower hereby further expressly waives and covenants not to assert any
appraisement, valuation, stay, extension, redemption or similar laws, now or at
any time hereafter in force which might delay, prevent or otherwise impede the
performance or enforcement of any Loan Document.
In the event that the 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 Administrative Agent and the Lenders
from or on behalf of the Borrower shall be applied by the Administrative 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
Administrative Agent may have advanced on behalf of any Lender for which the
Administrative Agent has not then been reimbursed by such Lender or the
Borrower; (ii) second, to the payment
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of any fees or expenses due the Administrative Agent from the Borrower; (iii)
third, to reimburse the Administrative 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 Administrative Agent, the Lead Arranger and the Lenders under any
Loan Document or other document or agreement entered into in connection with the
transactions contemplated thereby.
10. THE AGENT.
10.1 Appointment.
Each Lender hereby irrevocably designates and appoints FNB as
the Administrative Agent of such Lender under the Loan Documents and each such
Lender hereby irrevocably authorizes FNB, as the Administrative 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 Administrative 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 Administrative 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 Administrative Agent.
10.2 Delegation of Duties.
The Administrative 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 Administrative Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates shall be (i)
liable for any action lawfully taken or omitted to be taken by it or such Person
under or in connection with the Loan Documents (except for its own gross
negligence or willful misconduct), or (ii) responsible in any manner to any of
the Lenders for any recitals, statements, representations or warranties made by
the Borrower or any officer thereof contained in the Loan Documents or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Administrative 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 Administrative
Agent shall not be under any obligation to any Lender to ascertain or to inquire
as to the observance or performance
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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 Administrative
Agent shall not be under any liability or responsibility whatsoever, as
Administrative 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 Administrative Agent.
The Administrative 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 reasonably
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 Administrative Agent. The
Administrative 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 Administrative Agent) and by the Person designated in such written notice of
transfer, in form and substance satisfactory to the Administrative Agent, shall
have been filed with the Administrative Agent. The Administrative 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 Administrative
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 Administrative 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 Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under the Loan Documents in accordance
with a request or direction of the Required Lenders, and such request or
direction and any action taken or failure to act pursuant thereto shall be
binding upon all the Lenders and all future holders of the Notes.
10.5 Notice of Default.
The Administrative Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default or Event of Default unless the
Administrative Agent has received written notice thereof from a Lender or the
Borrower. In the event that the Administrative Agent receives such a notice, the
Administrative Agent shall promptly give notice thereof to the Lenders. The
Administrative 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 Administrative Agent shall have
received such directions, the Administrative 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.
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10.6 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender expressly acknowledges that neither the
Administrative Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates has made any representations or warranties to it
and that no act by the Administrative Agent hereinafter, including any review of
the affairs of the Borrower, shall be deemed to constitute any representation or
warranty by the Administrative Agent to any Lender. Each Lender represents to
the Administrative Agent that it has, independently and without reliance upon
the Administrative 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 Administrative 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 Administrative Agent hereunder, the
Administrative 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 Administrative 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
Administrative Agent in its capacity as such (to the extent not promptly
reimbursed by the Borrower and without limiting the obligation of the Borrower
to do so), pro rata according to its Commitment, from and against any and all
liabilities, obligations, claims, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever
including, without limitation, any amounts paid to the Lenders (through the
Administrative 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 Administrative 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 Administrative 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
Administrative Agent. The agreements in this Section shall survive the payment
of all amounts payable under the Loan Documents.
10.8 Administrative Agent in Its Individual Capacity.
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FNB and its 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 FNB was not Administrative Agent
hereunder. With respect to the Commitment made or renewed by FNB and the Note
issued to FNB, FNB 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
Administrative Agent, and the terms "Lender" and "Lenders" shall in each case
include FNB.
10.9 Successor Administrative Agent.
If at any time the Administrative Agent deems it advisable, in
its sole discretion, it may submit to each of the Lenders a written notice of
its resignation as Administrative Agent under this Agreement, such resignation
to be effective upon the earlier of (i) the written acceptance of the duties of
the Administrative Agent under the Loan Documents by a successor Administrative
Agent and (ii) on the 60th day after the date of such notice. Upon any such
notice of resignation, the Required Lenders shall have the right to appoint from
among the Lenders a successor Administrative Agent. If no successor
Administrative Agent shall have been so appointed by the Required Lenders and
accepted such appointment in writing within 45 days after the retiring
Administrative Agent's giving of notice of resignation, then the retiring
Administrative Agent shall, in consultation with the Borrower, appoint a
successor Administrative Agent on behalf of the Lenders prior to the end of the
60th day from such notice from among any of the Lenders who shall have at such
time a Commitment of at least $15,000,000 (an "Approved Successor"). If no
Lender has a Commitment of at least $15,000,000 (or no Lender whose Commitment
is at least $15,000,000 shall agree to accept such appointment), then the
retiring Administrative Agent shall, in consultation with the Borrower, appoint
any other Lender or any other 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 as a successor Administrative Agent. Any
appointment of a successor Administrative Agent shall be subject to the approval
of the Borrower, which approval shall not be unreasonably withheld or delayed,
and shall be given in any event prior to the end of the 60th day from the date
of the retiring Administrative Agent's notice of resignation, provided that
during any period in which there exists and is continuing an Event of Default,
no approval from the Borrower to the appointment of an Approved Successor shall
be required. Upon the acceptance of an appointment as Administrative Agent
hereunder by a successor Administrative Agent and any required approval of such
successor Administrative Agent by the Borrower in accordance with the terms of
this Section, such successor Administrative Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent's rights, powers,
privileges and duties as Administrative Agent under the Loan Documents shall be
terminated. The Borrower and the Lenders shall execute such documents as shall
be necessary to effect such appointment. After any retiring Administrative
Agent's resignation hereunder as Administrative 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 Administrative Agent under the Loan Documents.
10.10 [Intentionally Omitted].
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11. OTHER PROVISIONS.
11.1 Amendments and Waivers.
With the written consent of the Required Lenders, the
Administrative 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 Administrative 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
Administrative 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) increase the
Commitments of any Lender or the Total Commitment Amount (except as provided in
Section 2.1(b)); (ii) extend the Maturity Date or the Advance Termination Date;
(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", (v) amend the
definition of "Applicable Margin", (vi) release any Subsidiary Guarantor from
its obligations under a Guaranty, or (vii) change the provisions of Section 2.9,
2.10, 2.11, 2.12, 2.13, 2.14, 2.15, 2.16, 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 Administrative Agent
under the Loan Documents without the written consent of the Administrative
Agent. The Administrative Agent shall cause a copy of each written request for
such an amendment, supplement or modification delivered by the Borrower to it to
be delivered to each Lender. 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
Administrative Agent and all future holders of the Notes. In the case of any
waiver, the parties to the applicable agreement, the Lenders and the
Administrative Agent shall be restored to their former position and rights under
the Loan Documents, and any Default or Event of Default waived shall not extend
to any subsequent or other Default or Event of Default, or impair any right
consequent thereon.
11.2 Notices.
All notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing and, unless otherwise
expressly provided herein, shall be deemed to have been duly given or made when
delivered by hand, or if sent by certified mail (return receipt requested), when
the return receipt is signed on behalf of the party to whom such notice is
given, or in the case of telecopier notice, when sent, or if sent by overnight
nationwide commercial courier, the Business Day following the date such notice
is deposited with said courier, and in any case addressed as follows in the case
of the Borrower or the Administrative Agent, and at the Domestic Lending Office
in the case of each Lender, or to such other addresses as to which the
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Administrative Agent may be hereafter notified by the respective parties hereto
or any future holders of the Notes:
The Borrower:
New Plan Excel Realty Trust, Inc.
1120 Avenue of the Americas
New York, New York 10036
Attention: Dean Bernstein,
Senior Vice President
Telephone: (212) 869-3000
Telecopy: (212) 869-3989
with a copy to:
New Plan Excel Realty Trust, Inc.
1120 Avenue of the Americas
New York, New York 10036
Attention: Steven F. Siegel, Esq.,
General Counsel
Telephone: (212) 869-3000
Telecopy: (212) 302-4776
The Administrative Agent:
Fleet National Bank
100 Federal Street
Boston, Massachusetts 02110
Attention: Real Estate Division
with a copy to:
Fleet National Bank
115 Perimeter Center Place, N.E.
Suite 500
Atlanta, Georgia 30346
Attention: Daniel P. Stegemoeller, Vice President
Telephone: (770) 390-6547
Telecopy: (770) 390-8434
except that any notice, request or demand by the Borrower to or upon the
Administrative Agent or the Lenders pursuant to Section 2.3 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.
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11.3 No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising any right,
remedy, power or privilege under any Loan Document shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege under any Loan Document preclude any other or further exercise thereof
or the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges under the Loan Documents are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.
11.4 Survival of Representations and Warranties.
All representations and warranties made under the Loan
Documents and in any document, certificate or statement delivered pursuant
hereto or in connection therewith shall survive the execution and delivery of
the Loan Documents. After the termination of this Agreement in accordance with
its terms, without any extension thereof, the payment in full of all obligations
of the Borrower under the Loan Documents and the expiration of any obligations
of the Borrower hereunder which survive the termination of this Agreement, the
Borrower shall have no liability to the Lenders under such representations and
warranties, except that the foregoing shall not apply with respect to any claim,
action or proceeding made or brought under any such representations or
warranties prior to such termination or payment.
11.5 Payment of Expenses and Taxes.
The Borrower agrees, promptly upon presentation of a statement
or invoice therefor, and whether any Loan is made (i) to pay or reimburse each
Credit Party for all of its out-of-pocket costs and expenses reasonably incurred
in connection with the development, preparation, negotiation 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 each Credit Party for
all of its 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 (including, without limitation, any costs incurred after the
entry of judgment in an attempt to collect money due in the judgment) 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 Credit Party 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 Credit Party and each of their respective officers,
directors, employees,
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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 from any
third party relating to this Agreement or the Loan Documents, including the
enforcement and performance of the Loan Documents and the use of the proceeds of
the Loans (all the foregoing, collectively, the "indemnified liabilities"),
whether or not any such indemnified person is a party to this Agreement or the
Loan Documents, and to reimburse each indemnified person for all legal and other
expenses incurred in connection with investigating or defending any indemnified
liabilities, and, if and to the extent that the foregoing indemnity may be
unenforceable for any reason, the Borrower agrees to make the maximum payment
permitted or not prohibited under applicable law; provided, however, that the
Borrower shall have no obligation hereunder to pay indemnified liabilities to
any Credit Party arising from (A) the gross negligence or willful misconduct of
such Credit Party or (B) disputes solely between the Credit Parties 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 shall not be payable by the
Borrower if (x) any such enforcement action brought by such Credit Party is
dismissed, with prejudice, on the pleadings or pursuant to a motion made by the
Borrower for summary judgment, and (y) if such Credit Party appeals such
dismissal, such dismissal is affirmed and the time for any further appeals has
expired. The obligations of the Borrower under this Section shall survive the
termination of this Agreement and the 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 Administrative 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 Section 2.13, 2.14 or 2.16 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 Administrative 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
Administrative Agent and all of the Lenders.
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(b) Each Lender shall have the right at any time, upon written
notice to the Administrative 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 Administrative Agent (which consent,
from each of them, shall not be unreasonably withheld or delayed and shall not
be required from the Borrower upon the occurrence and during the continuance of
an Event of Default), to sell, assign, transfer or negotiate all or any part of
such Lender's rights and obligations under the Loan Documents to any other bank,
insurance company, pension fund, mutual fund or other financial institution,
provided that there shall be paid to the Administrative 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 Administrative Agent for its
acceptance and recording an Assignment and Assumption Agreement. Upon such
execution, delivery, acceptance and recording by the Administrative Agent, from
and after the effective date specified in such Assignment and Assumption
Agreement, the assignee thereunder shall be a party hereto and, to the extent
provided in such Assignment and Assumption Agreement, the assignor Lender
thereunder shall be released from its obligations under the Loan Documents. The
Borrower agrees upon written request of the Administrative 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 Assumption 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 Assumption 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 Administrative Agent and
a new Exhibit B shall be distributed by the Administrative 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
Administrative 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 2.16 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
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such Lender in respect of such interest had such Lender not sold such
participation.
(d) If any (i) assignment made pursuant to paragraph (b) above
or (ii) any participation granted pursuant to paragraph (d) above shall be made
to any Person that is organized under the laws of any jurisdiction other than
the United States of America or any State thereof, such Person shall furnish
such certificates, documents or other evidence to the Borrower and the
Administrative 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
Administrative 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
paragraph (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 [Intentionally Omitted].
11.9 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 Administrative 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.
11.10 Adjustments; Set-off.
(a) If any Lender (a "Benefitted Lender") shall at any time
receive any
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payment of all or any part of its Loans or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in Section 9.1(h) or
(i), or otherwise) in a greater proportion than any such payment to and
collateral received by any other Lender in respect of such other Lender's Loans
or interest thereon, such Benefitted 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 Benefitted 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 Benefitted 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 Administrative 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.
11.11 Lenders' Representations.
Each Lender represents to the Administrative Agent that, in
acquiring its Note, it is acquiring the same for its own account for the purpose
of investment and not with a view to selling the same in connection with any
distribution thereof, provided that the disposition of each Lender's own
Property shall at all times be and remain within its control.
11.12 Indemnity.
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The Borrower agrees to indemnify and hold harmless each Credit
Party and its affiliates, directors, officers, employees, affiliates, agents,
controlling persons and attorneys (each an "Indemnified Person") from and
against any loss, cost, liability, damage or expense (including the reasonable
fees and disbursements of counsel of such Indemnified Person, including all
local counsel hired by any such counsel) incurred by such Indemnified Person in
investigating, preparing for, defending against, or providing evidence,
producing documents or taking any other action in respect of, any commenced or
threatened litigation, administrative proceeding or investigation under any
federal securities or tax laws or any other statute of any jurisdiction, or any
regulation, or at common law or otherwise, which is alleged to arise out of or
is based upon: (i) any untrue statement of any material fact by the Borrower in
any document or schedule executed or filed with any Governmental Authority by or
on behalf of the Borrower; (ii) any omission to state any material fact required
to be stated in such document or schedule, or necessary to make the statements
made therein, in light of the circumstances under which made, not misleading; or
(iii) any acts, practices or omissions of the Borrower or its agents relating to
the use of the proceeds of any or all borrowings made by the Borrower which are
alleged to be in violation of Section 2.15, or in violation of any federal
securities or tax laws or of any other statute, regulation or other law of any
jurisdiction applicable thereto, whether or not 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 willful misconduct of such Indemnified
Person or arising solely from claims between one such Indemnified Person and
another such Indemnified Person.
11.13 Governing Law.
The Loan Documents and the rights and obligations of the
parties thereunder shall be governed by, and construed and interpreted in
accordance with, the internal laws of the State of New York, without regard to
principles of conflict of laws.
11.14 Headings Descriptive.
Section headings have been inserted in the Loan Documents for
convenience only and shall not be construed to be a part thereof.
11.15 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
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validity, legality or enforceability of any such term or provision in any other
jurisdiction.
11.16 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 Administrative Agent and the Lenders with respect to the
subject matter thereof and supersede all prior agreements and understandings
among the Borrower, the Administrative Agent and the Lenders with respect to the
subject matter thereof.
11.17 Consent to Jurisdiction.
The Borrower and each of the Credit Parties hereby irrevocably
submit 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 and each of the Credit Parties hereby
irrevocably waive, to the fullest extent permitted or not prohibited by law, any
objection which any of them 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.
11.18 Service of Process.
The Borrower hereby agrees that process may be served against
it in any suit, action or proceeding referred to in Section 11.17 by sending the
same by first class mail, return receipt requested or by overnight courier
service, to the address of the Borrower set forth in Section 11.2 or in the
applicable Loan Document executed by the Borrower. The Borrower hereby agrees
that any such service (i) shall be deemed in every respect effective service of
process upon it in any such suit, action, or proceeding, and (ii) shall to the
fullest extent enforceable by law, be taken and held to be valid personal
service upon and personal delivery to it.
11.19 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 Administrative Agent
or any Lender to serve process in any manner permitted by law or limit the right
of the Administrative 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.
11.20 WAIVER OF TRIAL BY JURY.
THE ADMINISTRATIVE AGENT, THE LENDERS AND THE BORROWER HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT ANY OF THEM MAY HAVE TO
A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
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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 ADMINISTRATIVE AGENT, THE LENDERS, OR COUNSEL
TO THE ADMINISTRATIVE AGENT OR THE LENDERS, HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT THE ADMINISTRATIVE 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 ADMINISTRATIVE AGENT AND THE
LENDERS HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, INTER ALIA, THE
PROVISIONS OF THIS SECTION.
11.21 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, each Lender
whose obligations under the Notes have been fully paid shall promptly return to
the Borrower its Note marked "paid" or shall deliver other evidence that such
Lender has received full payment of such obligations.
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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 EXCEL REALTY TRUST, INC.
By: /s/ DEAN BERNSTEIN
-------------------------------------
Dean Bernstein
Senior Vice President
FLEET NATIONAL BANK,
as Administrative Agent and a Lender
By: /s/ DANIEL P. STEGEMOELLER
-------------------------------------
Daniel P. Stegemoeller,
Vice President
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EXHIBIT 10.42
GUARANTY
GUARANTY (as the same may be amended, supplemented or
otherwise modified from time to time, this "GUARANTY"), dated as of March 7,
2000, by and among each of the Subsidiaries listed on Schedule I hereto
(collectively, the "SUBSIDIARY GUARANTORS") and FLEET NATIONAL BANK, as
administrative agent (in such capacity, the "ADMINISTRATIVE AGENT") on behalf of
the Lenders under and as defined in the Loan Agreement (hereinafter defined).
RECITALS
I. Reference is made to the Term Loan Agreement, dated as of the date
hereof, by and among New Plan Excel Realty Trust, Inc., a Maryland corporation,
the Lenders party thereto, and the Administrative Agent (as the same may be
amended, supplemented or otherwise modified from time to time, the "LOAN
AGREEMENT").
II. The Administrative Agent and the Lenders have made it a condition
precedent to the effectiveness of the Loan Agreement that each Subsidiary
Guarantor execute and deliver this Guaranty.
III. Each Subsidiary Guarantor expects to derive substantial benefit
from the Loan Agreement and the transactions contemplated thereby and, in
furtherance thereof, has agreed to execute and deliver this Guaranty.
Therefore, in consideration of the Recitals, the terms and conditions
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each of the Subsidiary Guarantors,
the Borrower and the Administrative Agent hereby agree as follows:
1. DEFINED TERMS
(a) Capitalized terms used herein which are not otherwise
defined herein shall have the respective meanings
ascribed thereto in the Loan Agreement.
(b) When used in this Guaranty, the following capitalized
terms shall have the respective meanings ascribed
thereto as follows:
"BORROWER OBLIGATIONS" means all present and future
obligations and liabilities, whether deemed principal, interest, additional
interest, fees, expenses or otherwise of the Borrower to the Administrative
Agent and the Lenders, including, without limitation, all obligations under (i)
the Loan Agreement, (ii) the Notes and (iii) all other Loan Documents.
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"GUARANTOR OBLIGATIONS" means, with respect to each
Subsidiary Guarantor, all of the obligations and liabilities of such Subsidiary
Guarantor hereunder, whether fixed, contingent, now existing or hereafter
arising, created, assumed, incurred or acquired.
2. GUARANTEE
(a) Subject to Section 2(b), each Subsidiary Guarantor hereby
absolutely, irrevocably and unconditionally guarantees the full and prompt
payment when due (whether at stated maturity, by acceleration or otherwise) of
the Borrower Obligations. The agreements of each Subsidiary Guarantor in this
Guaranty constitute a guarantee of payment, and no Credit Party shall have any
obligation to enforce any Loan Document or exercise any right or remedy with
respect to any collateral security thereunder by any action, including making or
perfecting any claim against any Person or any collateral security for any of
the Borrower Obligations prior to being entitled to the benefits of this
Guaranty. The Administrative Agent may, at its option, proceed against the
Subsidiary Guarantors, or any one or more of them, in the first instance, to
enforce the Guarantor Obligations without first proceeding against the Borrower
or any other Person, and without first resorting to any other rights or
remedies, as the Administrative Agent may deem advisable. In furtherance hereof,
if any Credit Party is prevented by law from collecting or otherwise hindered
from collecting or otherwise enforcing any Borrower Obligation in accordance
with its terms, such Credit Party shall be entitled to receive hereunder from
the Subsidiary Guarantors after demand therefor, the sums which would have been
otherwise due had such collection or enforcement not been prevented or hindered.
(b) Notwithstanding anything to the contrary contained herein,
the maximum aggregate amount of the obligations of each Subsidiary Guarantor
hereunder shall not, as of any date of determination, exceed the lesser of the
greatest amount that is valid and enforceable against such Subsidiary Guarantor
under principles of New York State contract law and the greatest amount that
would not render such Subsidiary Guarantor's liability hereunder subject to
avoidance as a fraudulent transfer or conveyance under Section 548 of Title 11
of the United States Code or any provisions of applicable state law
(collectively, the "FRAUDULENT TRANSFER LAWS"), in each case after giving effect
to all other liabilities of such Subsidiary Guarantor, contingent or otherwise,
that are relevant under the Fraudulent Transfer Laws (specifically excluding,
however, any liability (A) in respect of intercompany indebtedness to the
Borrower or any Affiliate or Subsidiary of the Borrower, to the extent that such
intercompany indebtedness would be discharged to the extent payment is made by
such Subsidiary Guarantor hereunder, and (B) under any guarantee of (1) senior
unsecured indebtedness or (2) indebtedness subordinated in right of payment to
any Borrower Obligation, in either case which contains a limitation as to
maximum liability similar to that set forth in this Section 2(b) and pursuant to
which the liability of such Subsidiary Guarantor hereunder is included in the
liabilities taken into account in
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determining such maximum liability) and after giving effect as assets to the
value (as determined under the applicable provisions of the Fraudulent Transfer
Laws) of any rights to subrogation, contribution, reimbursement, indemnity or
similar rights of such Subsidiary Guarantor pursuant to applicable law or any
agreement providing for an equitable allocation among such Subsidiary Guarantor
and other Affiliates or Subsidiaries of the Borrower of obligations arising
under guarantees by such parties.
(c) Each Subsidiary Guarantor agrees that the Guarantor
Obligations may at any time and from time to time exceed the maximum aggregate
amount of the obligations of such Subsidiary Guarantor hereunder without
impairing this Guaranty or affecting the rights and remedies of any Credit Party
hereunder.
3. ABSOLUTE OBLIGATION
No Subsidiary Guarantor shall be released from liability
hereunder unless and until the Commitments of the Lenders have terminated and
either (i) the Borrower shall have paid in full the outstanding principal
balance of the Loans, together with all accrued and unpaid interest thereon, and
all other amounts then due and owing under the Loan Documents, or (ii) the
Guarantor Obligations of such Subsidiary Guarantor shall have been paid in full
in cash. Each Subsidiary Guarantor acknowledges and agrees that (a) no Credit
Party has made any representation or warranty to such Subsidiary Guarantor with
respect to the Borrower, any of its Subsidiaries, any Loan Document, or any
agreement, instrument or document executed or delivered in connection therewith,
or any other matter whatsoever, and (b) such Subsidiary Guarantor shall be
liable hereunder, and such liability shall not be affected or impaired,
irrespective of (A) the validity or enforceability of any Loan Document, or any
agreement, instrument or document executed or delivered in connection therewith,
or the collectibility of any of the Borrower Obligations, (B) the preference or
priority ranking with respect to any of the Borrower Obligations, (C) the
existence, validity, enforceability or perfection of any security interest or
collateral security under any Loan Document, or the release, exchange,
substitution or loss or impairment of any such security interest or collateral
security, (D) any failure, delay, neglect or omission by any Credit Party to
realize upon or protect any direct or indirect collateral security,
indebtedness, liability or obligation, any Loan Document, or any agreement,
instrument or document executed or delivered in connection therewith, or any of
the Borrower Obligations, (E) the existence or exercise of any right of set-off
by any Credit Party, (F) the existence, validity or enforceability of any other
guarantee with respect to any of the Borrower Obligations, the liability of any
other Person in respect of any of the Borrower Obligations, or the release of
any such Person or any other guarantor of any of the Borrower Obligations, (G)
any act or omission of any Credit Party in connection with the administration of
any Loan Document or any of the Borrower Obligations, (H) the bankruptcy,
insolvency, reorganization or receivership of, or any other proceeding for the
relief of debtors commenced by or against, any Person, (I) the
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disaffirmance or rejection, or the purported disaffirmance or purported
rejection, of any of the Borrower Obligations, any Loan Document, or any
agreement, instrument or document executed or delivered in connection therewith,
in any bankruptcy, insolvency, reorganization or receivership, or any other
proceeding for the relief of debtor, relating to any Person, (J) any law,
regulation or decree now or hereafter in effect which might in any manner affect
any of the terms or provisions of any Loan Document, or any agreement,
instrument or document executed or delivered in connection therewith or any of
the Borrower Obligations, or which might cause or permit to be invoked any
alteration in the time, amount, manner or payment or performance of any of the
Borrower's obligations and liabilities (including the Borrower Obligations), (K)
the merger or consolidation of the Borrower into or with any Person, (L) the
sale by the Borrower of all or any part of its assets, (M) the fact that at any
time and from time to time none of the Borrower Obligations may be outstanding
or owing to any Credit Party, (N) any amendment or modification of, or
supplement to, any Loan Document, or (O) any other reason or circumstance which
might otherwise constitute a defense available to or a discharge of the Borrower
in respect of its obligations or liabilities (including the Borrower
Obligations) or of such Subsidiary Guarantor in respect of any of the Guarantor
Obligations (other than by the performance in full thereof).
4. REPRESENTATIONS AND WARRANTIES
Each of the Subsidiary Guarantors represents and warrants as
to itself that all representations and warranties relating to it contained in
the Loan Agreement are true and correct.
5. NOTICES
Except as otherwise specifically provided herein, all notices,
requests, consents, demands, waivers and other communications hereunder shall be
in writing (including facsimile) and shall be given in the manner set forth in
Section 11.2 of the Loan Agreement (i) in the case of the Administrative Agent,
to the address set forth in Section 11.2 of the Loan Agreement, (ii) in the case
of a Subsidiary Guarantor, to the address set forth in Schedule I hereto, or
(iii) in the case of each party hereto, to such other addresses as to which the
Administrative Agent may be hereafter notified by the respective parties hereto.
6. EXPENSES
Each Subsidiary Guarantor agrees that it shall, promptly after
demand, pay to the Administrative Agent any and all reasonable out-of-pocket
sums, costs and expenses, which any Loan Party may pay or incur defending,
protecting or enforcing this Guaranty (whether suit is instituted or not),
reasonable attorneys' fees and disbursements. All sums, costs and expenses
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which are due and payable pursuant to this Section shall bear interest, payable
on demand, at the highest rate then payable on the Borrower Obligations.
7. REPAYMENT IN BANKRUPTCY, ETC.
If, at any time or times subsequent to the payment of all or
any part of the Borrower Obligations or the Guarantor Obligations, any Credit
Party shall be required to repay any amounts previously paid by or on behalf of
the Borrower or any Subsidiary Guarantor in reduction thereof by virtue of an
order of any court having jurisdiction in the premises, including as a result of
an adjudication that such amounts constituted preferential payments or
fraudulent conveyances, the Subsidiary Guarantors unconditionally agree to pay
to the Administrative Agent, within 10 days after demand, a sum in cash equal to
the amount of such repayment, together with interest on such amount from the
date of such repayment by such Credit Party to the date of payment to the
Administrative Agent at the applicable after-maturity rate set forth in the Loan
Agreement.
8. MISCELLANEOUS
(a) Except as otherwise expressly provided in this Guaranty,
each Subsidiary Guarantor hereby waives presentment, demand for payment, notice
of default, nonperformance and dishonor, protest and notice of protest of or in
respect of this Guaranty, the other Loan Documents and the Borrower Obligations,
notice of acceptance of this Guaranty and reliance hereupon by any Credit Party,
and the incurrence of any of the Borrower Obligations, notice of any sale of
collateral security or any default of any sort.
(b) No Subsidiary Guarantor is relying upon any Credit Party
to provide to such Subsidiary Guarantor any information concerning the Borrower
or any of its Subsidiaries, and each Subsidiary Guarantor has made arrangements
satisfactory to such Subsidiary Guarantor to obtain from the Borrower on a
continuing basis such information concerning the Borrower and its Subsidiaries
as such Subsidiary Guarantor may desire.
(c) Each Subsidiary Guarantor agrees that any statement of
account with respect to the Borrower Obligations from any Credit Party to the
Borrower which binds the Borrower shall also be binding upon such Subsidiary
Guarantor, and that copies of said statements of account maintained in the
regular course of or such Credit Party's business may be used in evidence
against such Subsidiary Guarantor in order to establish its Guarantor
Obligations.
(d) Each Subsidiary Guarantor acknowledges that it has
received a copy of the Loan Documents and has approved of the same. In addition,
each Subsidiary Guarantor
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acknowledges having read each Loan Document and having had the advice of counsel
in connection with all matters concerning its execution and delivery of this
Guaranty.
(e) This Guaranty shall be binding upon each Subsidiary
Guarantor and its successors and inure to the benefit of, and be enforceable by
the Administrative Agent, Lenders and their respective successors, transferees
and assigns. No Subsidiary Guarantor may assign any right, or delegate any duty,
it may have under this Guaranty.
(f) Subject to the limitations set forth in Section 2(b), the
Guarantor Obligations shall be joint and several.
(g) This Guaranty is the "Guaranty" referred to in the Loan
Agreement, and is subject to, and should be construed in accordance with, the
provisions thereof. Each of the parties hereto acknowledges and agrees that the
following provisions of the Loan Agreement are made applicable to this Guaranty
and all such provisions are incorporated by reference herein as if fully set
forth herein, including Sections 1 (Definitions), 2.13 (Taxes; Net Payments),
9.1 (Events of Default), 11.1 (Amendments and Waivers), 11.3 (No Waiver;
Cumulative Remedies), 11.5 (Payment of Expenses and Taxes), 11.7 (Successors and
Assigns), 11.9 (Counterparts), 11.12 (Indemnity), 11.13 (Governing Law), 11.14,
(Headings Description), 11.15 (Severability), 11.16 (Integration), 11.17
(Consent to Jurisdiction), 11.18 (Service of Process), 11.19 (No Limitation on
Service or Suit) and 11.20 (WAIVER OF TRIAL BY JURY) thereof.
(h) Each Subsidiary Guarantor agrees that (i) the execution
and delivery of a Guaranty by any Required Additional Guarantor after the date
hereof shall not affect the obligations of the Subsidiary Guarantors hereunder,
and (ii) the Subsidiary Guarantors and each such Required Additional Guarantor
shall, subject to Section 2(b), be jointly and severally liable for all of the
Borrower Obligations.
(i) [IF THIS GUARANTY IS BEING EXECUTED BY A REQUIRED
ADDITIONAL GUARANTOR: THE UNDERSIGNED SUBSIDIARY GUARANTOR IS A REQUIRED
ADDITIONAL GUARANTOR AND ACKNOWLEDGES AND AGREES THAT IT IS EXECUTING THIS
GUARANTY IN ACCORDANCE WITH THE REQUIREMENTS OF THE LOAN AGREEMENT IN ORDER TO
INDUCE THE CREDIT PARTIES TO MAKE ADDITIONAL LOANS AND AS CONSIDERATION FOR
LOANS PREVIOUSLY MADE OR ISSUED. THE UNDERSIGNED SUBSIDIARY GUARANTOR AGREES
THAT, SUBJECT TO SECTION 2(b), IT IS JOINTLY AND SEVERALLY LIABLE WITH ALL OTHER
SUBSIDIARIES WHO HAVE PREVIOUSLY EXECUTED AND DELIVERED A GUARANTY PURSUANT TO
THE LOAN AGREEMENT FOR ALL OF THE BORROWER OBLIGATIONS.
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IN EVIDENCE of the agreement by the parties hereto to the terms and
conditions herein contained, each such party has caused this Subsidiary
Guarantee to be duly executed on its behalf.
NEW PLAN REALTY TRUST, a
Massachusetts business trust
By: /s/ Dean Bernstein
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
EXCEL REALTY - ST, INC., a Delaware
corporation
By: /s/ Dean Bernstein
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
[CORPORATE SEAL]
FLEET NATIONAL BANK, as
Administrative Agent
By: /s/ Daniel P. Stegemoeller
----------------------------------
Name: Daniel P. Stegemoeller
----------------------------------
Title: Vice President
----------------------------------
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SCHEDULE I
TO SUBSIDIARY GUARANTY
SUBSIDIARY GUARANTORS
UNDER GUARANTY DATED AS OF MARCH 7, 2000
<TABLE>
<CAPTION>
Jurisdiction of Incorporation Address for
Name or Formation Notices
- --------------------- ----------------------------- --------------------------
<S> <C> <C>
New Plan Realty Trust Massachusetts c/o New Plan Excel
Realty Trust, Inc.
1120 Avenue of the Americas
New York, New York 10036
Excel Realty - ST, Inc. Delaware c/o New Plan Excel
Realty Trust, Inc.
1120 Avenue of the Americas
New York, New York 10036
</TABLE>
<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
YEARS ENDED JULY 31, ENDED YEAR ENDED
--------------------- DECEMBER 31, DECEMBER 31
1996 1997 1998 1998 1999
---- ----- ----- ------------ -----------
<S> <C> <C> <C> <C> <C>
4.9 3.5 3.0 3.1 2.2
</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
YEAR ENDED DECEMBER 31, 1999
(DOLLAR AMOUNTS IN THOUSANDS)
<TABLE>
<S> <C>
(Private) Earnings:
Net income................................................ $149,513
Interest expense (including amortization of debt discount
and issuing costs)..................................... 81,412
Equity in loss of affiliates.............................. 3,169
Other adjustments......................................... 452
--------
$234,546
========
Fixed Charges:
Interest expense (including amortization of debt discount
and issuing costs)..................................... $ 81,412
Capitalized interest...................................... 126
Preferred stock dividends................................. 22,777
Other adjustments......................................... 374
--------
$104,689
========
Ratio of Earnings to Fixed Charges.......................... 2.2
</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
New Plan DRP Trust, a Maryland business trust
<PAGE> 1
EXHIBIT 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration
statements of New Plan Excel Realty Trust, Inc. on Form S-3 (File Nos.
333-01569, 333-13943, 333-20005, 333-24615, 333-64203, 333-65211, 333-67511 and
333-87905) and Form S-8 (File Nos. 333-02329, 333-13481, 333-65223, 333-65193,
333-65221 and 333-85549) of our report dated February 17, 2000, on our audits of
the consolidated financial statements and financial statement schedules of New
Plan Excel Realty Trust, Inc. as of December 31, 1999 and 1998, and July 31,
1998 and for the year ended December 31, 1999, the five months ended December
31, 1998 and for each of the two years in the period ended July 31, 1998, which
report is included in this Annual Report on Form 10-K.
/s/ PricewaterhouseCoopers LLP
New York, New York
March 21, 2000
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> DEC-31-1999
<CASH> 10,834
<SECURITIES> 1,190
<RECEIVABLES> 30,225
<ALLOWANCES> 13,897
<INVENTORY> 0
<CURRENT-ASSETS> 0
<PP&E> 2,880,645
<DEPRECIATION> 216,274
<TOTAL-ASSETS> 2,953,141
<CURRENT-LIABILITIES> 0
<BONDS> 1,193,100
0
23
<COMMON> 875
<OTHER-SE> (97,565)
<TOTAL-LIABILITY-AND-EQUITY> 2,953,141
<SALES> 0
<TOTAL-REVENUES> 438,027
<CGS> 0
<TOTAL-COSTS> 207,616
<OTHER-EXPENSES> 1,299
<LOSS-PROVISION> 6,144
<INTEREST-EXPENSE> 81,412
<INCOME-PRETAX> 149,513
<INCOME-TAX> 0
<INCOME-CONTINUING> 149,513
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 149,513
<EPS-BASIC> 1.43
<EPS-DILUTED> 1.42
</TABLE>
