Exhibit 10.61
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REIMBURSEMENT AGREEMENT
dated as of August 24, 2001
between
NEW PLAN EXCEL REALTY TRUST, INC.
(Company)
and
FLEET NATIONAL BANK
(Bank)
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS......................................................1
Section 1.01 Definitions...................................................1
Section 1.02 Rules of Construction; Time of Day............................5
ARTICLE II LETTERS OF CREDIT AND REIMBURSEMENT..............................6
Section 2.01 Issuance of Letters of Credit; Amendments.....................6
Section 2.02 Reimbursement and Other Payments..............................8
Section 2.03 Obligations Absolute.........................................11
Section 2.04 Indemnification..............................................11
Section 2.05 Liability of Bank............................................12
Section 2.06 Extension of Commitment Expiration Date......................13
ARTICLE III SECURITY........................................................15
Section 3.01 Guaranty.....................................................15
Section 3.02 Collateral...................................................15
ARTICLE IV CONDITIONS......................................................15
Section 4.01 Documentation................................................15
ARTICLE V REPRESENTATIONS AND WARRANTIES..................................16
Section 5.01 Existence and Power..........................................16
Section 5.02 Authority....................................................17
Section 5.03 Binding Agreement............................................17
Section 5.04 Litigation...................................................17
Section 5.05 Required Consents............................................17
Section 5.06 No Conflicting Agreements....................................18
Section 5.07 Reaffirmation of Representations and Warranties..............18
ARTICLE VI GENERAL COVENANTS...............................................18
Section 6.01 Incorporation of Covenants from Senior Bank Facilities.......18
ARTICLE VII DEFAULTS AND REMEDIES...........................................18
Section 7.01 Defaults.....................................................18
Section 7.02 Remedies.....................................................20
Section 7.03 Waivers; Consents............................................21
Section 7.04 No Waiver; Remedies Cumulative...............................21
Section 7.05 Setoff.......................................................21
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TABLE OF CONTENTS
(continued)
PAGE
ARTICLE VIII MISCELLANEOUS...................................................22
Section 8.01 Notices......................................................22
Section 8.02 Successors and Assigns.......................................23
Section 8.03 Survival of Representations, Warranties and Covenants........23
Section 8.04 Counterparts.................................................24
Section 8.05 Costs, Expenses and Taxes....................................24
Section 8.06 Amendments...................................................24
Section 8.07 Severability; Interest Limitation............................24
Section 8.08 Complete Agreement...........................................25
Section 8.09 Conflicts....................................................25
Section 8.10 Governing Law; Consent to Jurisdiction and Service...........25
Section 8.11 Waiver of Jury Trial and Certain Damage Claims...............26
Section 8.12 Table of Contents and Headings...............................26
Section 8.13 Participations...............................................27
Section 8.14 Relationship.................................................27
Section 8.15 Time of the Essence..........................................27
Section 8.16 Acknowledgment of Indemnity Obligations......................27
EXHIBITS
Exhibit A Form of Letter of Credit
Exhibit B Form of Letter of Credit Request
Exhibit C Form of Extension Request
Exhibit D Form of Notice of Reduction
Exhibit E Form of Notice of Amendment
Exhibit F Form of Letter of Credit Application
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REIMBURSEMENT AGREEMENT
THIS REIMBURSEMENT AGREEMENT (this "Agreement"), made as of August
24, 2001 between NEW PLAN EXCEL REALTY TRUST, INC., a Maryland corporation (the
"Company"), and FLEET NATIONAL BANK (the "Bank").
R E C I T A L S:
A. The Company has requested that the Bank issue certain irrevocable
standby letters of credit in the form of Exhibit A upon the written request of
the Company therefor (each such letter of credit, including any amendments
thereto and any substitute letter of credit therefor issued pursuant to the
terms hereof, a "Letter of Credit" and collectively, the "Letters of Credit") up
to an aggregate amount of Forty Million and No/100 Dollars ($40,000,000.00) (the
"Letters of Credit Amount").
B. The Bank is willing to issue the Letters of Credit upon the terms
and conditions hereinafter provided.
NOW, THEREFORE, in consideration of the foregoing and the
undertakings herein set forth and intending to be legally bound, the Company and
the Bank hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions.
In this Agreement (unless the context otherwise requires) the
following terms have the meanings specified in the Recitals set forth above:
Agreement
Bank
Company
Letters of Credit
Letters of Credit Amount
Terms used but not defined herein shall have the meanings contained
in that certain Term Loan Agreement dated as of May 9, 2001 by and among the
Company, certain lenders who are parties thereto and the Bank, as Administrative
Agent for the lenders (as the same may be modified or amended from time to time,
the "Loan Agreement").
In addition, the following terms shall have the following meanings,
unless the context otherwise requires:
"Assets" means any and all tangible and intangible assets and
property of the Company.
"Authorized Representative" means an officer of the Company duly
authorized by the Company in such capacity to make the certifications required
by this Agreement or take the other actions indicated by the context.
"Bank's Head Office" means the Bank's head office located at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other location as the
Bank may designate from time to time by notice to the Company.
"Bank's Special Counsel" means Long ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP or such
other counsel as may be approved by the Bank.
"Business Day" means any day on which banking institutions located in
the same city and state as the Bank's Head Office are located and are open for
the transaction of banking business.
"Closing Date" means the date when all of the conditions under
Section 4.01 have been satisfied.
"Commitment Expiration Date" means March 31, 2003, subject to
extension as provided in Section 2.06.
"Credit Agreements" means, collectively, (i) that certain Credit
Agreement (Facility I) dated as of November 17, 1999, among the Company, The
Bank of New York, as Administrative Agent, and the lenders signatory thereto, as
subsequently amended, and (ii) that certain Credit Agreement (Facility II),
dated as of November 17, 1999, among the Company, The Bank of New York, as
Administrative Agent, and the lenders signatory thereto, as subsequently
amended.
"Default" means an event which with the passage of time or giving of
notice or both would become an Event of Default.
"Default Rate" shall have the meaning ascribed to such term in
Section 2.02(b).
"Documents" means this Agreement, the Letters of Credit, the
Guaranty, and all other documents, instruments or agreements now or hereafter
executed or delivered by or on behalf of the Company and the Guarantors in
connection with the Letters of Credit, as the same may be amended, restated,
consolidated, supplemented, renewed, extended or replaced.
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"Draft" means a sight draft presented under a Letter of Credit.
"Event of Default" shall have the meaning ascribed to such term in
Section 7.01.
"Extension Fee" shall have the meaning ascribed to such term in
Section 2.06.
"Extension Request" shall have the meaning ascribed to such term in
Section 2.06.
"GAAP" means generally accepted accounting principles consistently
applied.
"Guarantors" shall have the meaning ascribed to such term in Section
3.01.
"Letters of Credit Exposure" means, at any time, the sum of (i) the
aggregate undrawn amount of all outstanding Letters of Credit at such time plus
(ii) the aggregate amount of all unreimbursed drawings under Letters of Credit
at such time.
"Letter of Credit Fees" shall have the meaning ascribed to such term
in Section 2.02(c).
"Letter of Credit Request" shall have the meaning ascribed to such
term in Section 2.01.
"Material Adverse Effect" means a material adverse effect on (i) the
financial condition, operations, business, or Properties of (A) the Company or
(B) the Company and its Subsidiaries taken as a whole, (ii) the ability of the
Company to perform its obligations under the Documents, or (iii) the ability of
the Bank to enforce the Documents.
"Material Contract" means each indenture, mortgage, deed of trust,
agreement or other instrument or contract (written or oral) to which the Company
is a party or by which any of its assets are bound which, if cancelled, breached
or not renewed by any party thereto, could reasonably have a Material Adverse
Effect.
"Obligations" means all indebtedness, obligations and liabilities of
the Company and the Guarantors in favor of the Bank of every type and
description arising under this Agreement, the Guaranty or any of the other
Documents, direct or indirect, joint or several, absolute or contingent, due or
to become due, liquidated or unliquidated, secured or unsecured, arising by
contract, operation of law or otherwise, now existing or hereafter arising,
including but not limited to (i) all obligations under Section 2.02 to reimburse
the Bank, with interest, for all Drafts honored under the Letters of Credit, all
accrued and unpaid fees (including the Letter of Credit Fees and Extension
Fees), and all expenses, reimbursements, indemnities and other obligations of
the Company to the Bank or any other indemnified party hereunder, and (ii) all
other obligations in favor of the Bank arising under this Agreement, as they may
be amended from time to time.
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"Participating Banks" shall have the meaning ascribed to such term in
Section 8.13.
"Participation Agreements" shall have the meaning ascribed to such
term in Section 8.13.
"Person" means any individual, for profit or nonprofit corporation,
limited liability company, partnership, joint venture, association, joint stock
company, estate, trust, unincorporated organization, governmental body or any
agency or political subdivision thereof, or other legal entity.
"Pricing Level" means one of the following five pricing levels, as
applicable, provided that if the ratings by S&P and ▇▇▇▇▇'▇ 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
▇▇▇▇▇'▇ 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 Company 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
▇▇▇▇▇'▇;
"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 ▇▇▇▇▇'▇ 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 ▇▇▇▇▇'▇ 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 ▇▇▇▇▇'▇ 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 ▇▇▇▇▇'▇ and
Pricing Levels I, II, III and IV are not applicable.
"Required Additional Guarantor" shall have the meaning ascribed to
such term in Section 3.01.
"Revolving Credit Facilities" means the senior unsecured revolving
credit facilities made to the Company pursuant to the Credit Agreements.
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"Senior Bank Facilities" means, collectively, the Term Loan and the
Revolving Credit Facilities.
"Stated Expiration Date" means, with respect to any Letter of Credit,
the expiration date of such Letter of Credit provided for therein, which shall
not be later than September 28, 2004 in any event.
"Taxes" shall have the meaning ascribed to such term in Section
2.02(e).
"Term Loan" means the $100,000,000.00 senior unsecured term loan made
to the Company pursuant to the Loan Agreement.
SECTION 1.02 Rules of Construction; Time of Day.
(a) A reference to any document or agreement shall include such
document or agreement as amended, modified or supplemented from time to time in
accordance with its terms and the terms of this Agreement.
(b) The singular includes the plural and the plural includes
the singular.
(c) A reference to any law includes any amendment or
modification to such law.
(d) A reference to any Person includes its permitted successors
and permitted assigns.
(e) Accounting terms not otherwise defined herein have the
meanings assigned to them by GAAP.
(f) The words "include", "includes" and "including" are not
limiting.
(g) The words "approval" and "approved", as the context so
determines, means an approval in writing given to the party seeking approval
after full and fair disclosure to the party giving approval of all material
facts necessary in order to determine whether approval should be granted.
(h) Reference to a particular "Section", refers to that section
of this Agreement unless otherwise indicated.
(i) The words "herein", "hereof", "hereunder" and words of like
import shall refer to this Agreement as a whole and not to any particular
section or subdivision of this Agreement.
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(j) References to any time of the day in this Agreement shall
refer to Eastern Standard Time or Eastern Daylight Saving Time, as in effect in
Boston, Massachusetts on such day.
ARTICLE II
LETTERS OF CREDIT AND REIMBURSEMENT
SECTION 2.01 Issuance of Letters of Credit; Amendments.
(a) Letter of Credit Request. Subject to the terms and
conditions set forth in this Agreement, at any time and from time to time from
the Closing Date through the day that is thirty (30) days prior to the
Commitment Expiration Date, the Bank shall issue such Letters of Credit as the
Company may request upon the delivery of a written request in the form of
Exhibit B hereto (a "Letter of Credit Request") to the Bank, provided that (i)
no Default or Event of Default shall have occurred and be continuing, (ii) upon
issuance of such Letter of Credit, the Letters of Credit Exposure shall not
exceed the Letters of Credit Amount, (iii) the conditions set forth in Article
IV shall have been satisfied, (iv) the Letters of Credit shall only be issued to
Bank of America, N.A. or its designees and their successors and assigns for the
limited purpose of supporting the Company's sale of certain Assets, (v) the
Stated Expiration Date of the Letter of Credit shall not be later than September
28, 2004, and (vi) in no event shall any amount drawn under a Letter of Credit
be available for reinstatement or a subsequent drawing under such Letter of
Credit. Each Letter of Credit Request shall be executed by an Authorized
Representative of the Company. The Bank shall be entitled to conclusively rely
on such Person's authority to request a Letter of Credit on behalf of the
Company. The Bank shall have no duty to verify the authenticity of any signature
appearing on a Letter of Credit Request. The Company assumes all risks with
respect to the use of the Letters of Credit, except as provided in Sections 2.04
and 2.05(a). Each Letter of Credit Request shall be submitted to the Bank at
least ten (10) Business Days prior to the date upon which the requested Letter
of Credit is to be issued. Each such Letter of Credit Request shall contain a
certification by an Authorized Representative of the Company that the Company is
and will be in compliance with all covenants under the Documents after giving
effect to the issuance of such Letter of Credit. The Company shall further
deliver to the Bank such additional applications and documents as the Bank may
require in connection with the issuance of each Letter of Credit in conformity
with the then standard practices of its letter of credit department, provided,
that in the event of any conflict, the terms of this Agreement shall control. A
current form of application is attached hereto as Exhibit F.
(b) Issuance of Letters of Credit. The Company hereby requests
that the Bank issue the Letters of Credit for its account. The Bank will issue
the Letters of Credit pursuant to the foregoing request of the Company, subject
to the Company's satisfaction of the conditions hereof, including the conditions
set forth in Article IV. The
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Letters of Credit shall be issued substantially in the form of Exhibit A,
appropriately completed. The Letters of Credit shall expire at 5:00 p.m. on the
Stated Expiration Date or, if such day is not a Business Day, on the next
succeeding Business Day.
(c) Reduction and Termination.
(i) The beneficiary of the Letters of Credit shall
have the right to request that the Bank permanently reduce, without penalty or
premium, the amount of any Letter of Credit. In order to effect such reductions,
the beneficiary shall give at least three (3) Business Days prior written notice
to the Bank in the form of Exhibit D attached hereto, designating the effective
date (which shall be a Business Day) of such reduction and the amount of such
reduction. Such reduction of the amount of a Letter of Credit shall be effective
on the third (3rd) Business Day following the date of delivery of such notice.
Any reduction shall be in an amount not less than $100,000.00.
(ii) If the beneficiary shall partially reduce the
amount of a Letter of Credit as described in subparagraph (c)(i) above, the Bank
shall then deliver to the beneficiary a Notice of Amendment to the Letter of
Credit in the form of Exhibit E attached hereto, dated the effective date of
such partial reduction of the amount of the Letter of Credit and stating the
amount to which the Letter of Credit has been reduced.
(iii) If a Letter of Credit is reduced to $0.00 or an
original Letter of Credit is otherwise surrendered to the Bank by the
beneficiary for termination, the Company shall not be liable for the payment of
any further fees under Sections 2.02(c) or 2.06(b) below with respect to such
Letter of Credit, provided that the Bank shall have no obligation to refund any
portion of fees previously paid with respect to such Letter of Credit.
(d) Amendments. Except as provided in Section 2.01(c) above,
the issuance of any supplement, modification, amendment, renewal or extension to
or of any Letter of Credit shall be treated in all respects the same as the
issuance of a new Letter of Credit.
(e) Transfer. The Letters of Credit shall be transferable by
the beneficiary as more particularly provided in the Form of Letter of Credit
attached hereto as Exhibit A. The Company shall pay to the Bank as of the date
of any transfer of a Letter of Credit a transfer fee equal to One Thousand and
No/100 Dollars ($1,000.00) per Letter of Credit.
(f) Replacement. The beneficiary shall have the right upon two
(2) Business Days' prior written notice to have a Letter of Credit terminated
and replaced by multiple Letters of Credit in favor of such beneficiaries and in
such amounts as shall be specified in the notice from the original beneficiary
to the Bank in the form of Annex B attached to the form Letter of Credit
(Exhibit A hereto); provided, however, that:
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(i) There shall never be more than twelve (12)
Letters of Credit issued and outstanding at any time;
(ii) The aggregate amount of the replacement Letters
of Credit shall not exceed the amount of the Letter of Credit being replaced;
(iii) The Stated Expiration Date of the replacement
Letters of Credit shall not be later than September 28, 2004;
(iv) The replacement Letters of Credit shall provide
that each shall be inoperative until the Bank shall have received the original
of the Letter of Credit being replaced in its possession at the address
specified in such Letter of Credit, but shall otherwise be issued in the same
form as the Letter of Credit being replaced and shall be subject to all other
requirements for the issuance of Letters of Credit provided in this Agreement,
including, without limitation, the furnishing by the Company of completed
applications in the form of Exhibit F hereto to the Bank, but excluding the
payment of the issuance fee described in the first sentence of Section 2.02(c);
(v) On the date of issuance of any replacement
Letters of Credit, the Company shall pay the Bank a replacement fee of $1,000.00
per replacement Letter of Credit issued;
(vi) The original of the Letter of Credit being
replaced shall be surrendered to the Bank for cancellation so that it will have
no further liability thereunder;
(vii) Upon issuance of the replacement Letters of
Credit and receipt of the original of the Letter of Credit being replaced, the
Bank shall be absolutely and unconditionally released of all liability and
obligations under such Letter of Credit and from any and all other obligations
and liabilities relating to the issuance and maintenance of such Letter of
Credit; and
(viii) In no event shall any replacement of a Letter
of Credit entitle the Company to a refund of any portion of the fees theretofore
paid to the Bank or which have accrued or become payable through the time of
such replacement, it being specifically acknowledged by the Company that all
Letter of Credit Fees, Extension Fees and other fees payable under this
Agreement are non-refundable as provided herein.
SECTION 2.02 Reimbursement and Other Payments.
(a) Reimbursement Payments. The Company hereby agrees to pay to
the Bank a sum equal to each amount drawn under a Letter of Credit by a Draft on
or before the date that is five (5) Business Days after notice from the Bank
that such Draft has been honored. All amounts under this Section 2.02(a) shall
be paid without set off,
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claim or counterclaim in funds immediately available to the Bank. All
Obligations of the Company under this Section 2.02 are demand obligations.
(b) Interest on Drawings. All sums payable to the Bank under
Section 2.02(a) which are not paid within five (5) Business Days of the notice
from the Bank described in Section 2.02(a) above shall bear interest from such
date until such sums are paid in full at a fluctuating rate per annum (computed
for the actual number of days elapsed, based on a 360-day year) equal to two
percent (2%) per annum above the Prime Rate (both before and after judgment)
(the "Default Rate"). Interest accruing pursuant to this Section 2.02(b) shall
be due and payable on demand and on the date the respective sum is paid.
(c) Letter of Credit Fees. In connection with the issuance of
each Letter of Credit, the Company shall pay to the Bank on the date of issuance
a fee in an amount calculated by multiplying (x) the amount of the Letter of
Credit by (y) the applicable percentage based on the Senior Debt Rating of the
Company at the time of issuance as follows:
Percentage
Pricing Level (per quarter)
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Pricing Levels I and II 0.35%
Pricing Level III 0.375%
Pricing Level IV 0.4%
Pricing Level V 0.5%
by (z) the numbers of full quarters remaining until the Commitment Expiration
Date (determined without regard to the exercise of any extension options
pursuant to Section 2.06). If the Senior Debt Rating of the Company declines
after the issuance of a Letter of Credit and payment of the initial fee but
prior to the Commitment Expiration Date (as determined without regard to the
exercise of any extension options pursuant to Section 2.06), the Company shall
pay to the Bank an additional fee computed by multiplying (x) the amount of the
Letters of Credit Exposure at such time by (y) the difference between the
applicable percentage corresponding to the new Senior Debt Rating and the
applicable percentage corresponding to the previous Senior Debt Rating by (z)
the number of full quarters remaining until the Commitment Expiration Date
(determined without regard to the exercise of any extension options pursuant to
Section 2.06). The fees provided for in this Section 2.02(c) (the "Letter of
Credit Fees") shall be fully earned when paid and non-refundable under any
circumstances.
(d) Increased Costs. If after the date of this Agreement any
enactment, promulgation or adoption of or change in any applicable foreign or
domestic law, regulation or rule or in the interpretation or administration
thereof by any court, administrative or governmental authority, central bank or
comparable agency charged
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with the interpretation or administration thereof, or compliance by the Bank or
any Participating Bank (or any controlling affiliate) with any guideline,
request or directive issued after the date hereof (whether or not having the
force of law) of any such authority, central bank or comparable agency, shall
either (i) impose, modify or deem applicable any reserve, special deposit,
insurance assessment or similar requirement (including without limitation a
guideline, request or directive which affects the manner in which the Bank or
any Participating Bank allocates capital resources to its commitments and/or
risks, including its obligations and/or risks under this Agreement, the Letters
of Credit or any Participation Agreement), (ii) affect the amount of capital
required or expected to be maintained by the Bank or any Participating Bank (or
any controlling affiliate), (iii) subject the Bank or any Participating Bank (or
any controlling affiliate) to any tax, levy, impost, duty, deduction,
withholding or other charge or change the basis of taxation of the Bank or any
Participating Bank (other than a change in a rate of tax based on overall net
income of the Bank or such Participating Bank), or (iv) impose on the Bank or
any Participating Bank any other condition regarding this Agreement, the Letters
of Credit or any Participation Agreement, and the result of any event referred
to in clause (i), (ii), (iii) or (iv) of this sentence shall be to increase the
direct or indirect cost to the Bank or any Participating Bank of issuing or
maintaining the Letters of Credit or the obligations and/or risks of the Bank or
any Participating Bank under this Agreement or any Participation Agreement or to
reduce the amounts receivable by the Bank or any Participating Bank hereunder or
under any Participation Agreement or to reduce the rate of return on the capital
of the Bank or any Participating Bank in connection with this Agreement or any
Participation Agreement, then within ten (10) Business Days after demand by the
Bank (on behalf of itself or any Participating Bank), the Company shall pay to
the Bank or the applicable Participating Bank, from time to time as specified by
the Bank or the applicable Participating Bank, additional amounts that in the
aggregate shall be sufficient to compensate the Bank or such Participating Bank
for such increased cost, reduction in amounts receivable or reduction in rate of
return. A certificate as to such increased cost, reduction in amounts receivable
by the Bank or any Participating Bank or reduction in rate of return submitted
by the Bank or the applicable Participating Bank to the Company containing an
explanation of such increased cost, reduction in amounts receivable or reduction
in rate of return and the manner of calculation thereof shall, in absence of
manifest error, be conclusive and binding for all purposes.
(e) No Deductions. All payments by the Company to the Bank
under this Agreement shall be made free and clear of and without deduction for
any present or future taxes or other amounts for or on account of levies,
imposts, duties, deductions, withholdings or other charges of whatsoever nature
(including, without limitation, interest, additions to tax and penalties
thereon), imposed, levied, collected, withheld or assessed by any governmental
authority (excluding any taxes based on income of the Bank and excluding
franchise and similar taxes imposed by the jurisdiction under which it is
organized or in which the Bank's office at the address set forth in Section 8.01
is located or any political subdivision thereof) (collectively, "Taxes"). If the
Company shall be required to withhold or deduct Taxes from any sum payable to
the Bank hereunder, (i)
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the sum payable to the Bank shall be increased as may be necessary so that the
Bank receives an amount equal to the sum it would have received had no such
withholdings or deductions been made, (ii) the Company shall make such necessary
withholdings and deductions, and (iii) the Company shall pay the full amount
withheld or deducted to the relevant authority according to applicable law so
that the Bank shall not be required to make any deduction or payment of such
Taxes.
(f) General Interest Accrual. All payments to the Bank under
this Agreement (including without limitation all payments becoming due under
Sections 2.01(e), 2.01(f), 2.02(a), (c), (d) and (e) and 2.06) shall be
accompanied by interest thereon, from the date such payments become due until
they are paid in full at the Default Rate.
(g) Place and Manner of Payment. All payments by the Company to
the Bank under this Agreement shall be made in lawful currency of the United
States by wire transfer to Fleet National Bank, ABA No.▇▇▇▇▇▇▇▇▇, Credit to
Commercial Loan Services - GL #1510351-66156, Reference: New Plan Excel-Oblr
#31038169, not later than 1:00 p.m. (Boston time) on the day when due. All
payments shall be made in immediately available funds as aforesaid or as the
Bank may otherwise stipulate by written notice to the Company. Whenever a
payment hereunder or under any of the other Documents becomes due on a day that
is not a Business Day, the due date for such payment shall be extended to the
next succeeding Business Day, and interest shall accrue during such extension.
SECTION 2.03 Obligations Absolute.
The obligations of the Company under this Article shall be absolute,
unconditional and irrevocable, shall be performed strictly in accordance with
the terms of this Agreement, under all circumstances whatsoever, including
without limitation the following circumstances: (i) any lack of validity or
enforceability of the Letters of Credit, the Guaranty or any of the other
Documents; (ii) any amendment or waiver of or any consent to or departure from
the Letters of Credit, the Guaranty or any of the other Documents; (iii) the
existence of any claim, setoff, defense or other right which the Company may
have at any time against the Bank, any Participating Bank or any other Person,
whether in connection with this Agreement, the transactions described herein or
any unrelated transaction; or (iv) any of the circumstances contemplated in
clauses (1) through (7), inclusive, of Section 2.05(a).
SECTION 2.04 Indemnification.
In addition to any and all rights of reimbursement, indemnification,
subrogation or any other rights pursuant hereto or under law or equity, to the
extent permitted by applicable law, the Company hereby indemnifies and holds
harmless the Bank and the Participating Banks (and their directors, officers,
employees and agents) from and against any and all claims, damages, losses,
liabilities, costs or expenses (including reasonable
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attorneys' fees for counsel of the Bank's or the applicable Participating Bank's
choice) whatsoever which the Bank or any Participating Bank may incur (or which
may be claimed against the Bank or any Participating Bank by any Person
whatsoever) by reason of or in connection with (a) the issuance or a transfer
of, or payment or failure to pay under, a Letter of Credit, (b) any breach by
the Company or the Guarantors of any representation, warranty, covenant, term or
condition in, or the occurrence of any default by the Company under this
Agreement, the Guaranty or any of the other Documents, including all reasonable
fees or expenses resulting from the settlement or defense of any claims or
liabilities arising as a result of any such breach or default, and (c)
involvement of the Bank or any Participating Bank in any legal suit,
investigation, proceeding, inquiry or action as a consequence, direct or
indirect, of the Bank's issuance of a Letter of Credit, its entering into this
Agreement or action taken thereunder or under the Guaranty or any of the other
Documents, or any other event or transaction in connection with or contemplated
by any of the foregoing; provided the Company shall not be required to indemnify
the Bank or any Participating Bank for any claims, damages, losses, liabilities,
costs or expenses to the extent, but only to the extent, caused by (i) the
willful misconduct or gross negligence of the Bank in determining whether
documents presented under a Letter of Credit complied with the terms of the
Letter of Credit, (ii) the payment by the Bank under a Letter of Credit
presented by the beneficiary for payment after the Stated Expiration Date of the
Letter of Credit (except to the extent the Stated Expiration Date is deemed
extended under the International Standby Practices (ISP98)), or (iii) the Bank's
willful failure or gross negligence in failing to pay under a Letter of Credit
after the presentation to it by the beneficiary of a Draft strictly complying
with the terms and conditions of the Letter of Credit, unless the Bank in good
faith believes that it is prohibited by law or other legal authority from making
such payment. Nothing in this Section is intended to limit the Company's
reimbursement and interest payment obligations contained in Sections 2.02(a) and
2.02(b). If, and to the extent that the obligations of the Company under this
Section 2.05 are unenforceable for any reason, the Company hereby agrees to make
the maximum contribution to the payment in satisfaction of such obligations
which is permissible under applicable law. The obligations of the Company under
this Section shall survive the termination of this Agreement.
SECTION 2.05 Liability of Bank.
(a) As between the Company and the Bank, the Company assumes
all risks of the acts or omissions of the beneficiary with respect to the
beneficiary's use of a Letter of Credit. Neither the Bank nor any of its
officers or directors shall be liable or responsible for: (1) the use which may
be made by or on behalf of the beneficiary of a Letter of Credit or for any acts
or omissions by the beneficiary in connection therewith; (2) the form, validity,
sufficiency, accuracy or genuineness of any documents (including without
limitation any documents presented under a Letter of Credit), or of any
statement therein or endorsement thereon, even if any such documents, statements
or endorsements should in fact prove to be in any or all respects invalid,
insufficient, fraudulent, forged,
-12-
inaccurate or untrue; (3) the payment by the Bank against presentation of
documents which do not comply with the terms of a Letter of Credit, including
failure of any documents to bear any reference or adequate reference to a Letter
of Credit, or any other failure by or on behalf of the beneficiary to comply
fully with conditions required in order to effect a drawing under a Letter of
Credit; (4) the validity or sufficiency of any instrument delivered by or on
behalf of the beneficiary or any other Person (other than the Bank) transferring
or assigning or purporting to transfer or assign a Letter of Credit or the
rights or benefits thereunder or proceeds thereof, in whole or in part, which
may prove to be invalid or ineffective for any reason; (5) errors, omissions,
interruptions, losses or delays in transmission or delivery of any messages by
mail, cable, telegraph, telex, telephone or otherwise; (6) any loss or delay in
the transmission or otherwise of any document or draft required in order to make
a drawing under a Letter of Credit; or (7) any other circumstances whatsoever in
making or failing to make payment under a Letter of Credit; except only that the
Company shall have a claim against the Bank, and the Bank shall be liable to the
Company, to the extent, but only to the extent, of any direct, as opposed to
special, exemplary, consequential or punitive, damages suffered by the Company
which the Company proves were caused by (i) the willful misconduct or gross
negligence of the Bank in determining whether a Draft presented under a Letter
of Credit complied with the terms of the Letter of Credit, (ii) the payment by
the Bank under a Letter of Credit presented by the beneficiary for payment after
the Stated Expiration Date of the Letter of Credit (except to the extent the
Stated Expiration Date is deemed extended under the International Standby
Practices (ISP98)), or (iii) the Bank's willful failure or gross negligence in
failing to pay under a Letter of Credit after the presentation to it by or on
behalf of the beneficiary of a Draft strictly complying with the terms and
conditions of the Letter of Credit, unless the Bank in good faith believes that
it is prohibited by law or other legal authority from making such payment. In
furtherance and not in limitation of the foregoing, the Bank may accept
documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary.
(b) Except for the Bank's obligations under the Letters of
Credit, the Bank shall have no liability to the Company or any other Person as a
result of any reduction of the credit rating of the Bank or any deterioration in
the Bank's financial condition. No reduction of the Bank's credit rating or
deterioration in the Bank's financial condition shall reduce or in any way
diminish the obligations of the Company to the Bank under this Agreement,
including without limitation the Company's obligations to pay fees on the
Letters of Credit to the Bank and to reimburse the Bank, with interest, for
drawings under the Letters of Credit.
SECTION 2.06 Extension of Commitment Expiration Date.
The Company shall have six (6) separate options to extend the
Commitment Expiration Date by three (3) months per option (for an aggregate
extension period of eighteen (18) months ending September 28, 2004), upon
satisfaction of the following
-13-
conditions precedent, which must be satisfied prior to the effectiveness of any
extension of the then applicable Commitment Expiration Date:
(a) Extension Request. The Company shall deliver written notice
of such request in the form of Exhibit C hereto (an "Extension Request") to the
Bank not later than the date which is twenty (20) days prior to the then
applicable Commitment Expiration Date (as determined without regard to such
Extension Request).
(b) Payment of Extension Fee. The Company shall pay to the Bank
an extension fee (an "Extension Fee") in an amount determined by multiplying the
amount of the Letters of Credit Exposure at such time by the applicable
percentage based on the Senior Debt Rating of the Company on the then applicable
Commitment Expiration Date, which fee shall, when paid, be fully earned and
non-refundable under any circumstances:
Percentage
Pricing Level (per quarter)
------------- -------------
Pricing Levels I and II 0.34375%
Pricing Level III 0.36875%
Pricing Level IV 0.39375%
Pricing Level V 0.49375%
Each Extension Fee shall be payable in advance at the beginning of the then
applicable extension period.
(c) No Default. On the date the Extension Request is given and
on the then applicable Commitment Expiration Date (as determined without regard
to such Extension Request) there shall exist no Default or Event of Default.
(d) Representations and Warranties. The representations and
warranties made by the Company and the Guarantor in the Documents or otherwise
made by or on behalf of the Company and the Guarantor in connection therewith or
after the date thereof shall have been true and correct in all material respects
when made and shall also be true and correct in all material respects on the
then applicable Commitment Expiration Date (as determined without regard to such
Extension Request), other than for changes resulting from transactions
contemplated or permitted by this Agreement and changes occurring in the
ordinary course of business that singly or in the aggregate do not have a
Material Adverse Effect, and except to the extent that such representations and
warranties relate expressly to an earlier date.
(e) Prior Option Exercised. The Company shall have exercised
the prior option to extend the Commitment Expiration Date. To the extent the
Company elects not to exercise an extension option, all subsequent options shall
immediately terminate and be of no further force or effect. Notwithstanding the
foregoing provisions
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of this Section 2.06, the Company agrees to exercise the then applicable
extension option so long as any Letter of Credit is outstanding.
ARTICLE III
SECURITY
SECTION 3.01 Guaranty.
Simultaneously with the execution and delivery by the Company of this
Agreement, the Company shall cause any and all guarantors of the Senior Bank
Facilities (collectively, including without limitation any Required Additional
Guarantors (as hereinafter defined), the "Guarantors") to execute and deliver a
guaranty in form and substance similar to those executed and delivered in
connection with the Senior Bank Facilities, pursuant to which the Guarantors
shall guarantee to the Bank the repayment of the Obligations. Within five (5)
Business Days of the execution and delivery by any additional guarantor of a
guaranty under any of the Senior Bank Facilities, the Company shall also cause
such additional guarantor (a "Required Additional Guarantor") to execute and
deliver to the Bank a guaranty of the Obligations, together with the opinion of
counsel, organizational documents, certificates and attachments required under
the Senior Bank Facilities with respect to such Required Additional Guarantor.
SECTION 3.02 Collateral.
If and to the extent that any of the Senior Bank Facilities are
collateralized by the Company, the Company shall at such time deposit in a cash
collateral account opened with the Bank, or provide other collateral that is
satisfactory to the Bank, in an amount equal to the Letters of Credit Exposure
at such time. The Company hereby grants to the Bank a security interest in such
cash or other collateral to secure the payment of the Obligations. The Company
shall execute and deliver to the Bank such further documents and instruments as
the Bank may request to evidence the creation and perfection of such security
interest in such cash collateral account or other collateral.
ARTICLE IV
CONDITIONS
SECTION 4.01 Documentation.
As conditions precedent to the Bank's issuance of the Letters of
Credit, the Bank shall have received each of the following in form and substance
satisfactory to the Bank:
(a) Original executed copies of this Agreement, the Guaranty
and the closing statement for this transaction, if any;
-15-
(b) A completed Letter of Credit Request;
(c) A certificate of an Authorized Representative of the
Company and each Guarantor as of the Closing Date certifying copies of the
articles of incorporation and bylaws, the partnership agreement and certificate
of limited partnership or other organizational documents, as applicable, of, and
a good standing certificate for, the Company and each Guarantor, and resolutions
necessary for the valid execution, delivery and performance by the Company and
the Guarantors of each of the Documents to which each of the Company and the
Guarantors is or is to become a party;
(d) An incumbency certificate dated as of the Closing Date,
signed by an Authorized Representative of the Company and each of the Guarantors
and giving the name and bearing a specimen signature of each individual who
shall be authorized to sign, in the name and on behalf of the Company and each
of the Guarantors, each of the Documents to which each of the Company and the
Guarantors is or is to become a party;
(e) Opinions of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇
LLP and the Company's general counsel, covering such matters as to the Company,
the Guarantors and the Documents as the Bank may reasonably request;
(f) Payment of the Letter of Credit Fees payable pursuant to
Section 2.02(c); and
(g) Such other documents, instruments, certificates, opinions,
approvals and assurances customary in this type of financing as the Bank or the
Bank's Special Counsel may reasonably request.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants as follows:
SECTION 5.01 Existence and Power.
(a) The Company 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 Company (including each Subsidiary
which is also a Guarantor) is a corporation, partnership, limited liability
company, real estate
-16-
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.
SECTION 5.02 Authority.
The Company has full legal power and authority to enter into,
execute, deliver and perform the terms of the Documents to which it is a party
and to incur the obligations provided for herein and therein, all of which have
been duly authorized by all proper and necessary corporate action.
SECTION 5.03 Binding Agreement.
(a) The Documents to which the Company is a party constitute
the valid and legally binding obligations of the Company, 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 Company of
the 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.
SECTION 5.04 Litigation.
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 Company or any Subsidiary of the Company) pending or, to the knowledge of
the Company, threatened against the Company or any Subsidiary of the Company 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 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
Company or any Subsidiary of the Company, which rescission, termination or
cancellation could reasonably be expected to have a Material Adverse Effect.
SECTION 5.05 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
-17-
be obtained by the Company to authorize, or is required in connection with the
execution, delivery and performance of the Documents or is required to be
obtained by the Company as a condition to the validity or enforceability of the
Documents.
SECTION 5.06 No Conflicting Agreements.
Neither the Company nor any Subsidiary of the Company 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 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 Company or any Subsidiary of the Company pursuant to the terms of any
such mortgage, indenture, contract or agreement.
SECTION 5.07 Reaffirmation of Representations and Warranties.
The Company hereby reaffirms to the Bank the representations and
warranties made in Sections 4.4 and 4.8 through 4.24 of the Loan Agreement which
are incorporated herein by reference as fully as if set forth herein.
ARTICLE VI
GENERAL COVENANTS
SECTION 6.01 Incorporation of Covenants from Senior Bank Facilities.
So long as any amount is available under the Letters of Credit, the Letters of
Credit have not been terminated as provided by their terms or any amount is
owing to the Bank hereunder or under the other Documents, the Company covenants
that, except to the extent the Bank shall otherwise consent in writing, each of
the covenants contained in Articles 7 and 8 of the Loan Agreement and the Credit
Agreements shall be performed and complied with by the Company and the
Guarantors as fully as if set forth herein. The Company agrees upon the request
of the Bank to amend this Agreement to further incorporate the covenants of the
Loan Agreement and such Credit Agreements and any applicable definitions if
requested to do so by the Bank. Furthermore, the Company agrees upon the request
of the Bank to acknowledge the operative Loan Agreement and Credit Agreements if
same are amended, restated or modified after the date hereof.
-18-
ARTICLE VII
DEFAULTS AND REMEDIES
SECTION 7.01 Defaults.
Each of the following shall constitute an event of default hereunder
("Event of Default"):
(a) Failure by the Company to pay or cause to be paid in full
to the Bank under this Agreement any amount due as reimbursement for a Draft
honored under a Letter of Credit within five (5) Business Days after notice from
the Bank that such Draft is honored by the Bank;
(b) Failure by the Company or any Guarantor to make any other
payment to the Bank under this Agreement or the other Documents within five (5)
Business Days of the date when it is due;
(c) Failure by the Company or any Guarantor to perform or
comply with any of the other terms or conditions contained in this Agreement,
the Guaranty or with any of the terms and conditions contained in the other
Documents and continuance of such failure for thirty (30) days after written
notice from the Bank to the Company, or such longer period to which the Bank in
its sole discretion may agree in the case of a failure not curable by the
exercise of due diligence within such thirty (30) day period, provided that (i)
the Company shall have commenced to cure such failure within such thirty (30)
day period, and (ii) the Company shall complete such cure as quickly as
reasonably possible with the exercise of due diligence, and (iii) such failure
shall not have a Material Adverse Effect;
(d) Any of the representations or warranties of the Company or
any of the Guarantors set forth in this Agreement, the Guaranty or in any other
Document proves to have been false or misleading in any material respect;
(e) Any material provision of this Agreement, the Guaranty or
any of the other Documents shall at any time for any reason cease to be valid
and binding on the Company or the Guarantors, or shall be declared to be null
and void, or shall be violative of any applicable law relating to a maximum
amount of interest permitted to be contracted for, charged or received, or the
validity or enforceability thereof shall be contested by the Company, any of the
Guarantors or any governmental agency, court or authority, or the Company or any
of the Guarantors shall deny that it has any or further liability or obligation
under this Agreement, the Guaranty or any of the other Documents; or
(f) Any default or breach shall occur and continue beyond the
expiration of any applicable grace or notice and cure period under the terms or
conditions
-19-
of the Loan Agreement or any of the Credit Agreements (including, without
limitation, any breach of the covenants contained in Articles 7 and 8 of the
Credit Agreements and the Loan Agreement) (the parties hereto covenanting and
agreeing, for the purposes of this Agreement, that in the event the Credit
Agreements and the Loan Agreement shall terminate or no longer be in full force
and effect prior to the payment and performance by the Company of all of the
Obligations, the provisions of the Credit Agreements and the Loan Agreement
shall for the purposes hereof continue in full force and effect as if the same
had not been terminated and the Credit Agreements and the Loan Agreement
remained in full force and effect).
SECTION 7.02 Remedies.
(a) Remedies. If an Event of Default has occurred and is
continuing uncured, the Bank may, at its sole option and without prior notice,
demand or presentment, and to the extent permitted by applicable law, do any or
all of the following:
(i) terminate its commitment under this Agreement to
issue any further Letters of Credit;
(ii) declare an amount equal to the Obligations,
including without limitation, the Letters of Credit Exposure, as having been
paid or disbursed by the Bank under the Letters of Credit and a loan to the
Company from the Bank in such amount to have been made and accepted, which loan
shall be immediately due and payable;
(iii) if the Obligations have become cash
collateralized pursuant to Section 3.02, exercise any and all such rights as the
Bank may have as a secured party under the Uniform Commercial Code of the State
of New York or other applicable law with respect to the security interests
created pursuant to Section 3.02;
(iv) by injunction or other writ, order, decree or
decision of a court of competent jurisdiction in an action, suit or other
proceeding at law or in equity, enjoin any acts or things which may be unlawful
or in violation of the Bank's rights under this Agreement, the Guaranty or any
other Document; and
(v) exercise, or cause to be exercised, any and all
such rights and remedies as it may have under this Agreement, the Guaranty or
any other Document or at law or in equity.
Following the occurrence and during the continuance of any Event of Default, and
regardless of whether or not the Bank shall have accelerated the Obligations,
all Obligations outstanding shall bear interest payable on demand at a rate per
annum equal to the Default Rate, until such amount shall be paid in full (after
as well as before judgment).
-20-
(b) Cash Collateral. Upon the occurrence, and during the
continuance, of any Event of Default, and to the extent the Obligations have not
already been cash collateralized pursuant to Section 3.02, the Company shall at
such time deposit in a cash collateral account opened by the Bank an amount
equal to the Letters of Credit Exposure at such time. The Company hereby grants
to the Bank a security interest in such cash collateral to secure all
obligations of the Company in respect of such Letters of Credit under this
Agreement and the other Documents. The Company shall execute and deliver to the
Bank such further documents and instruments as the Bank may request to evidence
the creation and perfection of such security interest in such cash collateral
account. Amounts held in such cash collateral account shall be applied by the
Bank to the payment of Drafts drawn under such Letters of Credit, and the unused
portion thereof after all such Letters of Credit shall have expired or been
fully drawn upon, if any, shall be applied to repay other Obligations of the
Company hereunder. After all such Letters of Credit shall have expired or been
fully drawn upon, all obligations under the Letters of Credit shall have been
satisfied and all other Obligations of the Company hereunder shall have been
paid in full, the balance, if any, in such cash collateral account shall be
returned to the Company.
SECTION 7.03 Waivers; Consents.
No waiver of, or consent with respect to, any provision of this
Agreement, the Guaranty or any of the other Documents shall in any event be
effective against the Bank unless the same shall be in writing and signed by the
Bank, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which it was given.
SECTION 7.04 No Waiver; Remedies Cumulative.
No failure on the part of the Bank to exercise, and no delay in
exercising, any right hereunder or under the Guaranty or any of the other
Documents shall operate as a waiver thereof; and no single or partial exercise
of any right hereunder or under the Guaranty shall preclude any other or further
exercise thereof or the exercise of any other right. To the extent permitted by
applicable law, the remedies herein and in the Guaranty are cumulative and not
exclusive of any remedies available under any other document or at law or in
equity.
SECTION 7.05 Setoff.
Regardless of the adequacy of any collateral, during the continuance
of any Event of Default, any deposits (general or specific, time or demand,
provisional or final, regardless of currency, maturity, or the branch of where
such deposits are held) or other sums credited by or due from any of the Bank to
the Company and any securities or other property of the Company in the
possession of the Bank may be applied to or set off against the payment of
Obligations of the Company and any and all other liabilities,
-21-
direct or indirect, absolute or contingent, due or to become due, now existing
or hereafter arising, of the Company to the Bank.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01 Notices.
All notices and other communications provided for hereunder shall be
in writing and sent by United States certified or registered mail, return
receipt requested, or by telegraph, telex, telecopier or private delivery
service, addressed as follows:
If to the Bank:
Fleet National Bank
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Real Estate Division
with a copy to:
Fleet National Bank
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Company:
New Plan Excel Realty Trust, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Chief Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
-22-
New Plan Excel Realty Trust, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
The time period in which a response to a notice must be given or any action
taken with respect thereto (if any), however, shall commence to run from the
date of receipt if personally delivered or sent by overnight courier, or if so
deposited in the United States Mail, the earlier of three (3) Business Days
following such deposit or the date of receipt as disclosed on the return
receipt. Rejection or other refusal to accept or the inability to deliver
because of changed address for which no notice was given shall be deemed to be
receipt of the notice sent. By giving at least fifteen (15) days prior notice
thereof, the Company or the Bank shall have the right from time to time and at
any time during the term of this Agreement to change their respective addresses
and each shall have the right to specify as its address any other address within
the United States of America.
SECTION 8.02 Successors and Assigns.
This Agreement shall inure to the benefit of and shall be binding
upon the parties hereto and their respective successors and assigns; provided
that this Agreement shall also inure to the benefit of the Participating Banks
as provided herein. The Company may not assign its rights under this Agreement
without the prior written consent of the Bank. The Company and the Bank intend
that, except as set forth in the first sentence of this Section, no other Person
shall have any claim or interest under this Agreement or right of action hereon
or hereunder.
SECTION 8.03 Survival of Representations, Warranties and Covenants.
All covenants, agreements, representations and warranties made herein
or in any of the other Documents or in any documents or other papers delivered
by or on behalf of the Company, or any Guarantor pursuant hereto or thereto
shall be deemed to have been relied upon by the Bank notwithstanding any
investigation heretofore or hereafter made by the Bank, and shall survive the
issuance by the Bank of the Letters of Credit, as herein contemplated, and shall
continue in full force and effect so long as any amount due under this Agreement
or the Letters of Credit or any of the other Documents remains outstanding. The
indemnification obligations of the Company provided herein and in the other
Documents shall survive the full repayment of amounts due and the termination of
the obligations of the Bank hereunder and thereunder to the extent provided
herein and therein. All statements contained in any certificate or other paper
delivered to the Bank at any time by or on behalf of the Company or any
Guarantor pursuant hereto or in connection with the transactions contemplated
hereby shall constitute representations and warranties by the Company hereunder.
-23-
SECTION 8.04 Counterparts.
The execution and delivery hereof by the Company and the Bank shall
constitute a contract between them for the uses and purposes herein set forth,
and this Agreement may be executed in any number of counterparts, with each
executed counterpart constituting an original and all counterparts together
constituting one agreement.
SECTION 8.05 Costs, Expenses and Taxes.
The Company agrees to pay on demand all costs and expenses of the
Bank in connection with the preparation, execution, delivery, interpretation and
administration of this Agreement, the Letters of Credit, the Guaranty and any
other Documents, including without limitation the reasonable fees and expenses
of counsel for the Bank with respect thereto and with respect to advising the
Bank as to its rights and responsibilities under this Agreement, the Letters of
Credit, the Guaranty and such other Documents, and all costs and expenses,
including without limitation reasonable counsel fees and expenses, if any, in
connection with the enforcement or preservation of rights under this Agreement,
the Letters of Credit, the Guaranty and such other Documents, or any litigation,
proceeding or dispute (whether arising hereunder or otherwise), in any way
related to the Bank's relationship with the Company or the Guarantor pursuant to
any of the Documents. In addition, the Company shall pay any and all stamp and
other taxes and fees payable or determined to be payable in connection with the
execution and delivery of this Agreement, the Letters of Credit, the Guaranty
and such other Documents, and shall indemnify and hold the Bank and the
Participating Banks harmless from and against any and all liabilities with
respect to or resulting from any delay in paying or omission to pay such taxes
and fees. The covenants of this Section 8.05 shall survive payment or
satisfaction of the Obligations.
SECTION 8.06 Amendments.
This Agreement may be amended only by an instrument in writing
executed and delivered by the Company and the Bank
SECTION 8.07 Severability; Interest Limitation.
If any provision hereof is found by a court of competent jurisdiction
to be prohibited or unenforceable in any jurisdiction, it shall be ineffective
as to such jurisdiction only to the extent of such prohibition or
unenforceability, and such prohibition or unenforceability shall not invalidate
the balance of such provision as to such jurisdiction to the extent it is not
prohibited or unenforceable, nor invalidate such provision in any other
jurisdiction, nor invalidate the other provisions hereof, all of which shall be
liberally construed in order to effect the provisions of this Agreement.
Notwithstanding anything to the contrary herein contained, the total liability
of the Company for payment of interest pursuant hereto shall not exceed the
maximum amount, if any, of such interest permitted by applicable law to be
contracted for, charged or
-24-
received, and if any payments by the Company to the Bank include interest in
excess of such a maximum amount, the Bank shall apply such excess to the
reduction of the unpaid principal amount or other sums due from the Company
pursuant hereto, or if none is due, such excess shall be refunded to the
Company; provided that, to the extent permitted by applicable law, in the event
the interest is not collected, is applied to principal or is refunded pursuant
to this sentence and interest thereafter payable pursuant hereto shall be less
than such maximum amount, then such interest thereafter so payable shall be
increased up to such maximum amount to the extent necessary to recover the
amount of interest, if any, theretofore uncollected, applied to principal or
refunded pursuant to this sentence. Any such application or refund shall not
cure or waive any Event of Default. In determining whether or not any interest
payable under this Agreement exceeds the highest rate permitted by law, any
nonprincipal payment (except payments specifically stated in this Agreement to
be "interest") shall be deemed, to the extent permitted by applicable law, to be
an expense, fee, premium or penalty rather than interest. All interest paid or
agreed to be paid to the Bank shall, to the extent permitted by applicable law,
be amortized, prorated, allocated and spread throughout the full period until
payment in full of all of the Obligations of the Company (including the period
of any renewal or extension thereof) so that the interest thereon for such full
period shall not exceed the maximum amount permitted by applicable law. This
section shall control all agreements between the Company and the Bank.
SECTION 8.08 Complete Agreement.
TAKEN TOGETHER WITH THE GUARANTY AND THE OTHER DOCUMENTS DELIVERED IN
COMPLIANCE HEREWITH, THIS AGREEMENT IS A COMPLETE MEMORANDUM OF THE AGREEMENT OF
THE COMPANY AND THE BANK AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. WAIVERS OR MODIFICATIONS OF ANY
PROVISION HEREOF MUST BE IN WRITING SIGNED BY THE PARTY TO BE CHARGED WITH THE
EFFECT THEREOF.
SECTION 8.09 Conflicts.
Insofar as possible the provisions of this Agreement shall be deemed
complementary to the terms of the Guaranty and the other Documents but in the
event of conflict the terms hereof shall control to the extent such are
enforceable under applicable law.
SECTION 8.10 Governing Law; Consent to Jurisdiction and Service.
THIS AGREEMENT AND EACH OF THE OTHER DOCUMENTS ARE CONTRACTS UNDER
THE LAWS OF THE STATE OF NEW YORK AND SHALL FOR ALL PURPOSES BE CONSTRUED IN
ACCORDANCE WITH AND
-25-
GOVERNED BY THE LAWS OF SUCH STATE (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS
OR CHOICE OF LAW). THE COMPANY AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS
AGREEMENT OR ANY OF THE OTHER DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE
STATE OF NEW YORK OR ANY FEDERAL COURT SITTING THEREIN AND CONSENT TO THE
NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE SERVICE OF PROCESS IN ANY SUCH
SUIT BEING MADE UPON THE COMPANY BY MAIL AT THE ADDRESS SPECIFIED IN SECTION
8.01. THE COMPANY HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE
TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN
AN INCONVENIENT COURT.
SECTION 8.11 Waiver of Jury Trial and Certain Damage Claims.
EACH OF THE COMPANY AND THE BANK HEREBY WAIVES ITS RIGHT TO A JURY
TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN
CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER DOCUMENTS, ANY RIGHTS OR
OBLIGATIONS HEREUNDER OR THEREUNDER OR THE PERFORMANCE OF SUCH RIGHTS AND
OBLIGATIONS. EXCEPT TO THE EXTENT EXPRESSLY PROHIBITED BY LAW, THE COMPANY
HEREBY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH LITIGATION
ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER
THAN, OR IN ADDITION TO, ACTUAL DAMAGES. THE COMPANY (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF THE BANK HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT THE BANK WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE
THE FOREGOING WAIVERS AND (B) ACKNOWLEDGES THAT THE BANK HAS BEEN INDUCED TO
ENTER INTO THIS AGREEMENT AND THE OTHER DOCUMENTS TO WHICH THEY ARE PARTIES BY,
AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS CONTAINED IN THIS SECTION
8.11. THE COMPANY ACKNOWLEDGES THAT IT HAS HAD AN OPPORTUNITY TO REVIEW THIS
SECTION 8.11 WITH ITS LEGAL COUNSEL AND THAT THE COMPANY AGREES TO THE FOREGOING
AS ITS FREE, KNOWING AND VOLUNTARY ACT.
SECTION 8.12 Table of Contents and Headings.
The Table of Contents and Section headings of this Agreement are
included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose.
-26-
SECTION 8.13 Participations.
Notwithstanding any other provision of this Agreement, the Company
understands that the Bank may at any time enter into one or more participation
agreements ("Participation Agreements") with other banks ("Participating Banks')
whereby the Bank will allocate to the Participating Banks certain percentages of
the payment obligations of the Company and the Guarantors under this Agreement,
the Guaranty and the other Documents and the funding obligations of the Bank
under the Letters of Credit. The Company acknowledges, that, for the convenience
of all parties, this Agreement is being entered into with the Bank only and that
the Company's obligations under this Agreement and the other Documents and the
Guarantors' obligations under the Guaranty are and will be undertaken for the
benefit of, and as an inducement to, the Participating Banks as well as the
Bank. Without limiting the foregoing, the Company acknowledges that Sections
2.02(e), 2.05 and the indemnity under Section 8.05 are also for the benefit of
the Participating Banks, and agrees to make any payments required by such
provisions for the account of any one or more Participating Banks on demand of
the Bank. Notwithstanding the foregoing, the Company shall not be required to
respond to requests or inquiries made by any of the Participating Banks unless
such requests or inquiries are made through the Bank. The Company hereby waives
any right of setoff it may at any time have against the Bank or any
Participating Bank as a result of the participations of the Participating Banks
in the payment obligations of the Company under this Agreement. The Bank agrees
to give written notice to the Company identifying each Participating Bank with
whom the Bank has entered into a Participation Agreement from time to time;
provided that failure to give any such notice shall not affect the rights of any
Participating Bank or result in any liability of the Bank.
SECTION 8.14 Relationship.
The relationship between the Bank and the Company is solely that of a
lender and borrower, and nothing contained herein or in any of the other
Documents shall in any manner be construed as making the parties hereto
partners, joint venturers or any other relationship other than lender and
borrower.
SECTION 8.15 Time of the Essence.
Time is of the essence with respect to each and every covenant,
agreement and obligation of the Company and the Guarantors under this Agreement
and the other Documents.
SECTION 8.16 Acknowledgment of Indemnity Obligations.
THE COMPANY ACKNOWLEDGES THAT THIS AGREEMENT CONTAINS INDEMNITY
OBLIGATIONS OF THE COMPANY.
-27-
IN WITNESS WHEREOF, the Company and the Bank have caused this
Reimbursement Agreement to be duly executed and delivered as of the date first
above written.
NEW PLAN EXCEL REALTY TRUST, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Sr. VP
FLEET NATIONAL BANK
By: /s/ ▇▇▇▇ ▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇
Title: Vice President
EXHIBIT A
FORM OF LETTER OF CREDIT
FLEET NATIONAL BANK
▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTN: TRADE SERVICES DEPT. - STANDBY UNIT
DATE:
IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER _______________
BENEFICIARY: APPLICANT: NEW PLAN EXCEL REALTY
TRUST, INC.
___________________________
___________________________
___________________________
___________________________
AMOUNT: USD ____________
EXPIRY DATE: ______________
EXPIRY PLACE: OUR COUNTERS
GENTLEMEN:
WE HEREBY ISSUE THIS CLEAN IRREVOCABLE LETTER OF CREDIT NO. ________ IN YOUR
FAVOR, FOR THE ACCOUNT OF NEW PLAN EXCEL REALTY TRUST, INC. FOR UP TO AN
AGGREGATE AMOUNT OF USD _____________, AVAILABLE BY YOUR DRAFT DRAWN ON US AT
SIGHT AND THE ORIGINAL OF THIS LETTER OF CREDIT AND AMENDMENT(S), IF ANY.
PARTIAL DRAWINGS ARE PERMITTED.
DRAFT(S) MUST STATE: "DRAWN UNDER FLEET NATIONAL BANK STANDBY L/C NO.
____________ DATED ______________."
WE HEREBY AGREE WITH YOU THAT DRAFT(S) DRAWN UNDER AND IN COMPLIANCE WITH THE
TERMS OF THIS LETTER OF CREDIT SHALL BE DULY HONORED UPON DUE PRESENTATION TO
US.
THIS LETTER OF CREDIT IS TRANSFERABLE IN FULL AND NOT IN PART. SHOULD YOU WISH
TO EFFECT A TRANSFER UNDER THIS CREDIT, SUCH TRANSFER WILL BE SUBJECT TO THE
RETURN TO US OF THE ORIGINAL CREDIT INSTRUMENT, ACCOMPANIED BY OUR FORM OF
TRANSFER, ATTACHED HERETO AS ANNEX A, PROPERLY COMPLETED AND SIGNED BY AN
AUTHORIZED SIGNATORY OF YOUR FIRM, BEARING YOUR BANKERS STAMP AND SIGNATURE
AUTHENTICATION.
WE HEREBY AGREE THAT YOU SHALL HAVE THE RIGHT UPON TWO (2) BUSINESS DAYS' PRIOR
WRITTEN NOTICE IN THE FORM ATTACHED HERETO AS ANNEX B, PROPERLY COMPLETED AND
SIGNED BY AN AUTHORIZED SIGNATORY OF YOUR FIRM, TO HAVE THIS LETTER OF CREDIT
TERMINATED AND REPLACED BY TWO OR MORE REPLACEMENT LETTERS OF CREDIT IN FAVOR OF
SUCH BENEFICIARIES AND IN SUCH AMOUNTS AS SHALL BE SPECIFIED IN THE NOTICE TO
US; PROVIDED, HOWEVER, THAT:
(A) AFTER GIVING EFFECT TO THE ISSUANCE OF THE REPLACEMENT LETTERS
OF CREDIT, WE SHALL NOT HAVE MORE THAN TWELVE (12) LETTERS OF
CREDIT
OUTSTANDING FOR THE ACCOUNT OF NEW PLAN EXCEL REALTY TRUST,
INC. PURSUANT TO THAT CERTAIN REIMBURSEMENT AGREEMENT DATED AS
OF AUGUST 24, 2001 BETWEEN US AND NEW PLAN EXCEL REALTY TRUST,
INC.;
(B) THE AGGREGATE AMOUNT OF THE REPLACEMENT LETTERS OF CREDIT
SHALL NOT EXCEED THE AMOUNT OF THIS LETTER OF CREDIT STATED
ABOVE;
(C) THE EXPIRY DATE OF THE REPLACEMENT LETTERS OF CREDIT SHALL NOT
BE LATER THAN THE EXPIRY DATE STATED ABOVE;
(D) THE REPLACEMENT LETTERS OF CREDIT SHALL OTHERWISE BE ISSUED IN
THE SAME FORM AS THIS LETTER OF CREDIT AND SHALL BE
TRANSFERABLE AS SET FORTH ABOVE, BUT SHALL PROVIDE THAT THEY
SHALL BE INOPERATIVE UNTIL WE SHALL HAVE RECEIVED THE ORIGINAL
OF THIS LETTER OF CREDIT AT THE ADDRESS SPECIFIED ABOVE; AND
(E) UPON ISSUANCE OF THE REPLACEMENT LETTERS OF CREDIT AND OUR
RECEIPT OF THE ORIGINAL OF THIS LETTER OF CREDIT, WE SHALL BE
ABSOLUTELY AND UNCONDITIONALLY RELEASED OF ALL LIABILITY AND
OBLIGATIONS UNDER THIS LETTER OF CREDIT AND FROM ANY AND ALL
OTHER OBLIGATIONS AND LIABILITIES RELATING TO THE ISSUANCE AND
MAINTENANCE OF THIS LETTER OF CREDIT.
EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, THIS CREDIT IS ISSUED SUBJECT TO
THE INTERNATIONAL STANDBY PRACTICES (ISP98), INTERNATIONAL CHAMBER OF COMMERCE
PUBLICATION NO. 590.
FORM AND CONTENTS ACCEPTED BY:
__________________________
AUTHORIZED SIGNATURE FOR
ANNEX A
INSTRUCTION TO TRANSFER
[TO BE TYPED ON BENEFICIARY LETTERHEAD]
FLEET NATIONAL BANK
▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTN: TRADE SERVICES DEPT.-STANDBY UNIT
RE: CREDIT ISSUED BY FLEET NATIONAL BANK DATE:_____________
LETTER OF CREDIT NUMBER ________________________
GENTLEMEN:
For value received. the undersigned beneficiary hereby irrevocably transfers to:
________________________________________________________________________________
(Name of Transferee)
________________________________________________________________________________
(Address)
all rights of the undersigned beneficiary to draw under the above Letter of
Credit in its entirety.
By this transfer, all rights of the undersigned beneficiary in such Letter of
Credit are transferred to the Transferee and the Transferee shall have the sole
rights as Beneficiary thereof, including sole rights relating to any amendments
whether increases or extensions or other amendments and whether now existing or
hereafter made. All amendments are to be advised direct to the Transferee
without necessity of any consent of or notice to the undersigned beneficiary.
The original of such Letter of Credit is returned herewith and we ask you to
endorse the transfer on the reverse thereof and forward it directly to the
Transferee with your customary notice of transfer.
Very truly yours,
* SIGNATURE AUTHENTICATED (type beneficiary name as appears on credit)
_________________________________ ______________________________________
(Bank) (Signature of Beneficiary)
name and title to be typed underneath)
_________________________________
(Authorized Signature)
(name and title to be typed underneath)
*BY AUTHENTICATING SIGNATURE YOU ARE GUARANTEEING THAT THE INDIVIDUAL SIGNING IS
AUTHORIZED TO SIGN FOR THE TRANSFEROR, THE PARTY ON WHOSE LETTERHEAD THIS FORM
APPEARS.
FOR FULL TRANSFER (TRANSFER IN ITS ENTIRETY: ALL AMENDMENTS
INCLUDING INCREASES AND EXTENSIONS, IF ANY, APPLICABLE TO TRANSFER)
ANNEX B
FORM OF NOTICE OF REPLACEMENT
Irrevocable Standby Letter of Credit
No. __________, dated ____________,
in the amount of $_____________
(the "Letter of Credit")
FLEET NATIONAL BANK
▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTN: TRADE SERVICES DEPT.-STANDBY UNIT
The undersigned, a duly authorized officer of ______________
("Beneficiary"), requests that the Letter of Credit be replaced by ___ separate
Letters of Credit issued in favor of the following beneficiaries and in the
following amounts:
Name and Address Amount
Dated: ____________________
_____________________________
Beneficiary
By:__________________________
Title:____________________
cc: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
New Plan Excel Realty Trust, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
EXHIBIT B
FORM OF LETTER OF CREDIT REQUEST
Fleet National Bank
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Pursuant to the provisions of Section 2.01(a) of the Reimbursement
Agreement dated as of August 24, 2001, as from time to time in effect (the
"Agreement"), between New Plan Excel Realty Trust, Inc. (the "Company") and
Fleet National Bank (the "Bank"), the Company hereby requests and certifies as
follows:
1. Letter of Credit. The Company hereby requests a Letter of Credit
to be issued under Section 2.01(a) of the Agreement:
Principal Amount: $
Beneficiary:
2. No Default. The undersigned Authorized Officer of the Company
certifies that the Company is and will be in compliance with all covenants under
the Documents after giving effect to the issuance of the Letter of Credit
requested hereby.
3. Representations True. Each of the representations and warranties
made by or on behalf of the Company and the Guarantors contained in the
Agreement, the Guaranty or in the other Documents or in any document or
instrument delivered pursuant to or in connection with the Agreement was true
and correct in all material respects as of the date as of which it was made and
shall also be true and correct in all material respects at and as of the
issuance date for the Letter of Credit requested hereby, with the same effect as
if made at and as of such issuance date (except to the extent of changes
resulting from transactions contemplated or permitted by the Agreement, the
Guaranty and the other Documents and changes occurring in the ordinary course of
business that singly or in the aggregate do not have a Material Adverse Effect,
and except to the extent that such representations and warranties relate
expressly to an earlier date) and no Default or Event of Default has occurred
and is continuing.
4. Other Conditions. All other conditions to the issuance of the
Letter of Credit requested hereby set forth in Articles 2 and 4 of the Agreement
have been satisfied.
5. Issuance Date. Except to the extent, if any, specified by notice
actually received by the Bank prior to the issuance date specified above, the
foregoing representations and warranties shall be deemed to have been made by
the Company on and as of such issuance date.
6. Definitions. Terms defined in the Agreement are used herein with
the meanings so defined.
IN WITNESS WHEREOF, the Company has caused this request to be duly
executed and delivered this _____ day of ___________, 200__.
NEW PLAN EXCEL REALTY TRUST, INC.
By: ______________________________
Name:
Title:
EXHIBIT C
FORM OF EXTENSION REQUEST
Fleet National Bank
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Pursuant to the provisions of Section 2.06 of the Reimbursement
Agreement dated as of August 24, 2001, as from time to time in effect (the
"Agreement"), between New Plan Excel Realty Trust, Inc. (the "Company") and
Fleet National Bank (the "Bank"), the Company hereby requests and certifies as
follows:
1. Extension. The Company hereby requests that the Commitment
Expiration Date be extended from __________, 200_ to __________, 200_ pursuant
to Section 2.06 of the Agreement. This request constitutes the exercise of the
__________ (first, second, etc.) extension option.
2. No Default. The undersigned Authorized Officer of the Company
certifies that the Company is and on the Commitment Expiration Date (as
determined without regard to this request) will be in compliance with all
covenants under the Documents.
3. Representations True. Each of the representations and warranties
made by or on behalf of the Company and the Guarantors contained in the
Agreement, in the other Documents or in any document or instrument delivered
pursuant to or in connection with the Agreement was true and correct in all
material respects as of the date as of which it was made and shall also be true
and correct in all material respects on the Commitment Expiration Date (as
determined without regard to this request) with the same effect as if made at
and as of the Commitment Expiration Date (except to the extent of changes
resulting from transactions contemplated or permitted by the Agreement and the
other Documents and changes occurring in the ordinary course of business that
singly or in the aggregate do not have a Material Adverse Effect, and except to
the extent that such representations and warranties relate expressly to an
earlier date) and no Default or Event of Default has occurred and is continuing.
4. Other Conditions. All other conditions to the extension of the
Commitment Expiration Date set forth in Section 2.06 of the Agreement have been
satisfied.
5. Commitment Expiration Date. Except to the extent, if any,
specified by notice actually received by the Bank prior to the issuance date
specified above, the
foregoing representations and warranties shall be deemed to have been made by
the Company on and as of the Commitment Expiration Date (as determined without
regard to this request).
6. Definitions. Terms defined in the Agreement are used herein with
the meanings so defined.
IN WITNESS WHEREOF, the Company has caused this request to be duly
executed and delivered this _____ day of ___________, 200__.
NEW PLAN EXCEL REALTY TRUST, INC.
By: __________________________________
Name:
Title:
EXHIBIT D
FORM OF NOTICE OF REDUCTION
Irrevocable Standby Letter of Credit
No. __________, dated ____________,
in the amount of $_____________
(the "Letter of Credit Amount")
FLEET NATIONAL BANK
▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTN: TRADE SERVICES DEPT. - STANDBY UNIT
The undersigned, a duly authorized officer of ______________
("Beneficiary"), certifies as follows to Fleet National Bank as issuer of the
above-referenced letter of credit (the "Letter of Credit"):
The Beneficiary consents to a reduction in the Letter of Credit
Amount to ______________ ($____________).
Dated: ____________________
_______________________________
Beneficiary
By:____________________________
Title:_________________________
cc: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
New Plan Excel Realty Trust, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
EXHIBIT E
NOTICE OF AMENDMENT
Irrevocable Standby Letter of Credit
No. ____________, dated ____________,
in the amount of $____________
(the "Letter of Credit Amount")
________________________
________________________
________________________
________________________
Dear Sir:
Reference is hereby made to that certain Irrevocable Standby Letter
of Credit No. ________, dated ____________ , established by us in your favor
(the "Letter of Credit"). We hereby notify you that, in accordance with the
terms of the Letter of Credit and that certain Reimbursement Agreement, dated as
of August 24, 2001, between New Plan Excel Realty Trust, Inc. and us, the Letter
of Credit Amount has been reduced to ____________________ ($__________).
This letter should be attached to the Letter of Credit and made a
part thereof.
FLEET NATIONAL BANK
By:________________________
Its: ________________________
cc: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
New Plan Excel Realty Trust, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
EXHIBIT F
FORM OF LETTER OF CREDIT APPLICATION