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Exhibit 10.3
FIRST AMENDMENT TO
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
EXCEL REALTY PARTNERS, L.P.
THIS FIRST AMENDMENT TO AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP OF EXCEL REALTY PARTNERS, L.P., dated as of August 20, 1999
("AMENDMENT"), is entered into by and among New Plan DRP Trust, a Maryland real
estate investment trust, as the "GENERAL PARTNER", New Plan Excel Realty Trust,
Inc., a Maryland corporation ("NPXL") and the Persons whose names are set forth
on Exhibit A as attached hereto, as the Limited Partners, together with any
other Persons who become Partners in the Partnership as provided herein.
WHEREAS, Excel Realty Partners, L.P. (the "PARTNERSHIP") was formed
pursuant to that certain Agreement of Limited Partnership of Excel Realty
Partners, L.P., dated as of April 24, 1995, as amended by that certain First
Amendment to the Agreement of Limited Partnership of Excel Realty Partners,
L.P., dated as of December 31, 1995 and further amended in its entirety by that
certain Amended and Restated Agreement of Limited Partnership dated as of June
25, 1997 (the "PARTNERSHIP AGREEMENT"); and
WHEREAS, by an Assignment of General Partnership Interest of even date
herewith ("ASSIGNMENT"), NPXL, as successor by merger to Excel Realty Trust,
Inc., has assigned NPXL's entire general partnership interest in the Partnership
to General Partner, and by an Acceptance of even date herewith ("ACCEPTANCE"),
General Partner has agreed to become the successor general partner of the
Partnership; and
WHEREAS, the requisite number of Limited Partners have consented to the
Assignment, the Acceptance and the consequent substitution of General Partner in
the place of NPXL as the general partner of the Partnership, conditioned upon,
and in consideration of NPXL's and General Partner's execution and delivery of
this Amendment concurrently with the consummation of the Assignment transaction;
and
WHEREAS, the Partnership has obtained the required consent from all
other persons and/or entities (as applicable, pursuant to other contractual
obligations of the Partnership) to the Assignment, the Acceptance and the
consequent substitution of General Partner in the place of NPXL as the general
partner of the Partnership; and
WHEREAS, the parties now wish to amend the Partnership Agreement in
certain respects.
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NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, the parties hereby agree that the Partnership Agreement is amended as
follows:
1. Capitalized terms used herein as defined terms and
not otherwise defined herein shall have the meanings ascribed to them
in the Partnership Agreement.
2. The definition of "ADJUSTMENT FACTOR" in the
Partnership Agreement is hereby amended by replacing the phrase "the
General Partner" with the word "NPXL" each time it appears in
paragraphs (a), (b) and (c) of said definition.
3. The definition of "GENERAL PARTNER" in the
Partnership Agreement is hereby amended to read as follows:
"'GENERAL PARTNER' means New Plan DRP Trust, a Maryland real
estate investment trust, and its successors and assigns, as
the general partner of the Partnership in their capacities as
general partner of the Partnership."
4. The definition of "REIT SHARE" in the Partnership
Agreement is hereby amended to read as follows:
"'REIT SHARE' means a share of the common stock, par value
$.01 per share of New Plan Excel Realty Trust, Inc., a
Maryland corporation ("NPXL")."
5. The definition of "REIT SHARES AMOUNT" in the
Partnership Agreement is hereby amended by replacing the phrase "the
General Partner" with the word "NPXL" each time it appears in said
definition.
6. The last sentence of Section 5.1 of the Partnership
Agreement is hereby amended to read as follows:
"The General Partner shall take such reasonable efforts, as
determined by it in its sole and absolute discretion and
consistent with NPXL's qualification as a REIT, to cause the
Partnership to distribute sufficient amounts to enable NPXL to
pay shareholder dividends that will (a) satisfy the
requirements for qualifying as a REIT under the Code and
Regulations (the "REIT REQUIREMENTS") and (b) avoid any
federal income or excise tax liability of the General Partner
and NPXL."
7. Section 7.3C(5) of the Partnership Agreement is
hereby amended to read as follows:
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"(5) to reflect such changes as are reasonably necessary for
NPXL to maintain its status as a REIT or to satisfy the REIT
Requirements; and"
8. For purposes of Article 11 of the Partnership
Agreement, the definition of "TRANSFER" in the Partnership Agreement is
hereby amended to include, without limiting the generality of the
definition set forth in the Partnership Agreement, any sale,
assignment, bequest, conveyance, devise, gift (outright or in trust),
Pledge, encumbrance, hypothecation, mortgage, exchange, transfer or
other disposition or act of alienation, whether voluntary or
involuntary or by operation of law of any equity interests or
securities in General Partner, of any nature or character whatsoever
(including, but not limited to, rights of any nature or character, to
purchase and/or convert into equity interests or securities of General
Partner).
9. Section 11.6D(c) is hereby amended to read as
follows:
"(c) in the event that such Transfer would cause NPXL
to cease to comply with the REIT Requirements;"
10. Section 7.12 is hereby added to the Partnership
Agreement to read as follows:
"SECTION 7.12 CONTINUING OBLIGATIONS OF NPXL
A. Notwithstanding the Assignment or Section
11.2 of the Partnership Agreement to the contrary, NPXL unconditionally
and irrevocably agrees to be jointly and severally obligated (along
with General Partner) to satisfy the "General Partner Obligations" as
defined in Exhibit "B" attached hereto and hereby incorporated herein
(the "GENERAL PARTNER OBLIGATIONS"). The obligations of NPXL hereunder
are in addition to, and independent of, the obligations of General
Partner. A separate action or actions may be brought and prosecuted
against NPXL whether an action is brought against General Partner or
whether General Partner is joined in any such action or actions. NPXL
further agrees that it may be joined in any action against General
Partner in connection with the General Partner Obligations and recovery
may be had against NPXL in any such action. The Partners acknowledge
that NPXL's obligations under this Section 7.12 are primary obligations
and not that of a guarantor or surety.
B. NPXL hereby covenants that if any Qualifying
Party tenders Partnership Units for Redemption pursuant to the
Partnership Agreement and their respective Partner Schedules, and if
the General Partner of the Partnership, elects pursuant to Section 8.6B
of the Partnership Agreement and the provisions of the respective
Partner Schedules, to acquire some or all of the Tendered Units in
exchange for REIT Shares, then (i) NPXL will cause such REIT Shares to
be issued as required to accomplish the Redemption, and (ii) to the
extent the Qualifying Party has been granted registration rights with
respect to any REIT Shares issued pursuant to Section 8.6B of the
Partnership Agreement, such registration rights shall continue to
apply, without modification."
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IN WITNESS WHEREOF, the General Partner, NPXL and the Limited Partners
have adopted this Agreement as of the date first written above by the
affirmative vote of the General Partner and a Majority in Interest of the
Limited Partners, and the General Partner and NPXL
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have executed this Agreement as of the date first written above.
GENERAL PARTNER: NEW PLAN DRP TRUST
By: /s/ XXXXXX XXXXXX
Its: SENIOR VICE PRESIDENT
"NPXL" NEW PLAN EXCEL REALTY TRUST, INC.
By: /s/ XXXXXX XXXXXX
Its: SENIOR VICE PRESIDENT
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EXHIBIT "B"
GENERAL PARTNER OBLIGATIONS
For purposes of this Amendment, the "General Partner Obligations" shall
mean, without limitation unless expressly provided herein to the contrary, all
of General Partner's obligations as a general partner of the Partnership,
including but not limited to those obligations under the Partnership Agreement,
other legal and/or equitable obligations of general partners under applicable
law, contractual obligations of the Partnership, and other legal and equitable
obligations of the Partnership. The purpose of Section 7.12 of the Partnership
Agreement and the General Partner Obligations is to give the Limited Partners
exactly the same legal rights and remedies against NPXL after the Assignment
transaction as the Limited Partners had prior to the Assignment transaction.
Without limiting the foregoing standard and scope of the General
Partner Obligations, the following are examples of obligations that are included
within the definition of "General Partner Obligations":
(i) General Partner's obligations as a general partner of the
Partnership whether resulting from the Partnership Agreement, the related
Partner Schedules or other legal or equitable state or federal obligations of
general partners (e.g. fiduciary obligations);
(ii) General Partner's obligations as a general partner of the
Partnership relating to the Partnership's obligations under:
(1) applicable state or federal law (legal or equitable);
(2) the underlying retail leases and related agreements (which
have been assumed or executed by the Partnership) regarding the retail projects
owned, or ground leased, by the Partnership ("PROJECTS"), and, if applicable,
the related ground leases;
(3) the underlying debt of the Projects (which have been
assumed by the Partnership to the extent the same is recourse); and
(4) the various contracts and agreements relating to the
Projects (which have been assumed or executed by the Partnership).
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