1
Exhibit 10.2
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement is made and entered into as of
December 1, 1997, by and between THE BANK OF NEW YORK (the "Assignor") and BANK
HOPOALIM, B.M. (the "Assignee").
R E C I T A L S
A. The Assignor, certain other lenders (together with any prior
assignees, the "Lenders") and The Bank of New York, as agent (the "Agent"), are
parties to that certain Credit Agreement dated as of November 21, 1997 (the
"Credit Agreement") with New Plan Realty Trust, a Massachusetts business trust
(the "Borrower"). Pursuant to the Credit Agreement, the Lenders agreed to make
Revolving Credit Loans under Commitments in the aggregate amount of $50,000,000,
subject to Commitment Increases, as provided in Section 2.20 thereof. The amount
of the Assignor's Commitment (before giving effect to this Assignment) is
specified in Item 1 of Schedule 1 hereto. The outstanding principal amount of
the Assignor's Loans under its Commitment (before giving effect to this
Assignment) is specified in Item 2 of Schedule 1 hereto. All capitalized terms
not otherwise defined herein are used herein as defined in the Credit Agreement.
B. The Assignor wishes to sell and assign to the Assignee, and the
Assignee wishes to purchase and assume from the Assignor, (i) the portion of the
Assignor's Commitment specified in Item 3 of Schedule 1 hereto (the "Assigned
Commitment") and (ii) the portion of the Assignor's Loans specified in Item 5 of
Schedule 1 hereto (the "Assigned Loans").
The parties agree as follows:
1. Assignment. Subject to the terms and conditions set forth herein and
in the Credit Agreement, the Assignor hereby sells and assigns to the Assignee,
and the Assignee hereby purchases and assumes from the Assignor, without
recourse, on the date set forth above (the "Assignment
2
Date") (a) all right, title and interest of the Assignor to the Assigned Loans
and (b) all obligations of the Assignor under the Credit Agreement with respect
to the Assigned Commitment and as a "Lender" thereunder. As full consideration
for the sale of the Assigned Loans and the Assigned Commitment, the Assignee
shall pay to the Assignor on the Assignment Date the principal amount of the
Assigned Loans (the "Purchase Price").
2. Representation and Warranties. Each of the Assignor and the Assignee
represents and warrants to the other that (a) it has full power and legal right
to execute and deliver this Agreement and to perform the provisions of this
Agreement; (b) the execution, delivery and performance of this Agreement have
been authorized by all action, corporate or otherwise, and do not violate any
provisions of its charter or by-laws or any contractual obligations or
requirement of law binding on it; and (c) this Agreement constitutes its legal,
valid and binding obligation, enforceable against it in accordance with its
terms.
3. Condition Precedent. The obligations of the Assignor and the
Assignee hereunder shall be subject to the fulfillment of the condition that the
Assignor shall have (a) received payment in full of the Purchase Price, and (b)
complied with the other applicable provisions of Section 11.7 of the Credit
Agreement.
4. Notice of Assignment. The Assignor agrees to give notice of the
assignment and assumption of the Assigned Loans and the Assigned Commitment to
the Agent and the Borrower and hereby instructs the Agent and the Borrower to
make all payments with respect to the Assigned Loans and the Assigned Commitment
directly to the Assignee at the applicable Lending Offices specified in Item 6
on Schedule 1 hereto, or to the Agent for the account of the Assignee as a
Lender (in either case, as required by the terms of the Credit Agreement);
provided, however, that the Borrower and the Agent shall be entitled to continue
to deal solely and
- 2 -
3
directly with the Assignor in connection with the interests so assigned until
the Agent and the Borrower, to the extent required by Section 11.7 of the Credit
Agreement, shall have received notice of the assignment, the Borrower and the
Agent shall have consented in writing thereto, and the Agent shall have recorded
and accepted this Agreement and received the Assignment Fee required to be paid
pursuant to Section 11.7 of the Credit Agreement. From and after the date (the
"Assignment Effective Date") on which the Agent shall notify the Borrower and
the Assignor that the requirements set forth in the foregoing sentence shall
have occurred and all consents (if any) required shall have been given, (i) the
Assignee shall be deemed to be a party to the Credit Agreement and, to the
extent that rights and obligations thereunder shall have been assigned to
Assignee as provided in such notice of assignment to the Agent, shall have the
rights and obligations of a Lender under the Credit Agreement, and (ii) the
Assignee shall be deemed to have appointed the Agent to take such action as
agent on its behalf and to exercise such powers under the Loan Documents as are
delegated to the Agent by the terms thereof, together with such powers as are
reasonably incidental thereto. The Assignee agrees that the provisions of
Section 10 of the Credit Agreement are hereby incorporated into this Agreement
by this reference, as if fully set forth herein at length. After the Assignment
Effective Date, the Agent shall make all payments in respect of the interest
assigned hereby (including payments of principal, interest, fees and other
amounts) to the Assignee. The Assignor and Assignee shall make all appropriate
adjustment in payments under the Assigned Loans and the Assigned Commitment for
periods prior to the Assignment Effective Date hereof directly between
themselves. The Assignee agrees to deliver to the Borrower and the Agent such
Internal Revenue Service forms as may be required to establish that the Assignee
is entitled to receive payments under the Credit Agreement without deduction or
withholding of tax.
- 3 -
4
5. Independent Investigation. The Assignee acknowledges that it is
purchasing the Assigned Loans and the Assigned Commitment from the Assignor
totally without recourse and, except as provided in Section 2 hereof, without
representation or warranty. The Assignee further acknowledges that it has made
its own independent investigation and credit evaluation of the Borrower in
connection with its purchase of the Assigned Loans and the Assigned Commitment.
Except for the representations or warranties set forth in Section 2, the
Assignee acknowledges that it is not relying on any representation or warranty
of the Assignor, expressed or implied, including without limitation, any
representation or warranty relating to the legality, validity, genuineness,
enforceability, collectibility, interest rate, repayment schedule or accrual
status of the Assigned Loans or the Assigned Commitment, the legality, validity,
genuineness or enforceability of the Credit Agreement, the related Notes, or any
other Loan Document referred to in or delivered pursuant to the Credit
Agreement, or financial condition or creditworthiness of the Borrower or any
other Person. The Assignor has not and will not be acting as either the
representative, agent or trustee of the Assignee with respect to matters arising
out of or relating to the Credit Agreement or this Agreement. From and after the
Assignment Effective Date, except as set forth in Section 4 above, the Assignor
shall have no rights or obligations with respect to the Assigned Loans or the
Assigned Commitments.
6. Consent of the Borrower and Agent; Exchange of Notes. Pursuant to
the provisions of Section 11.7 of the Credit Agreement, and to the extent
required thereby, the Borrower and Agent, by signing below, consents to this
Agreement and to the assignment contemplated herein. The Borrower further agrees
upon receipt of the Assignor's Note, to execute and deliver:
(a) to the Assignee, a Note, in an aggregate principal amount of
$10,000,000.
- 4 -
5
(b) to the Assignor, a Note, in an aggregate principal amount of
$20,000,000.
At the request of the Borrower, the Lender whose obligations
under its Note have been fully paid or who has received a replacement Note
pursuant to the foregoing, shall promptly return to the Borrower its Note or
superseded Note, as the case may be, or other evidence that such Lender has
received full payment of such obligations or a replacement Note in respect of
such superseded Note.
7. Method of Payment. All payments to be made by either party hereunder
shall be in funds available at the place of payment on the same day and shall be
made by wire transfer to the account designated by the party to receive payment.
8. Integration. This Agreement shall supersede any prior agreement or
understanding between the parties (other than the Credit Agreement) as to the
subject matter hereof.
9. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and shall be
binding upon both parties, their successors and assigns.
10. Headings. Section headings have been inserted herein for
convenience only and shall not be construed to be a part hereof.
11. Amendments; Waivers. This Agreement may not be amended, changed,
waived or modified except by a writing executed by the parties hereto, and may
not be amended, changed, waived or modified in any manner inconsistent with
Section 11.7 of the Credit Agreement without the prior written consent of the
Agent.
12. Governing Law. This Agreement shall be governed by, and construed
in accordance with the laws of, the State of New York.
- 5 -
6
13. Limited Recourse Obligations. This Agreement and all documents,
agreements, understandings and arrangements relating to this transaction have
been negotiated, executed and delivered on behalf of the Borrower by the
trustees or officers thereof in their representative capacity under the
Declaration of Trust, and not individually, and bind only the trust estate of
the Borrower, and no trustee, officer, employee, agent or shareholder of the
Borrower shall be bound or held to any personal liability or responsibility in
connection with the agreements, obligations and undertakings of the Borrower
hereunder, and any person or entity dealing with the Borrower in connection
therewith shall look only to the trust estate for the payment of any claim or
for the performance of any agreement, obligation or undertaking thereunder. The
Agent and each Lender hereby acknowledge and agree that each agreement and other
document executed by the Borrower in accordance with or in respect of this
transaction shall be deemed and treated to include in all respects and for all
purposes the foregoing exculpatory provision.
THE BANK OF NEW YORK
By: /s/ ANDREA STUART
-----------------------------
Andrea Stuart
Vice President
- 6 -
7
BANK HAPOALIM, B.M.
By: /s/ SHAUN BREIDBART
-----------------------------
Shaun Breidbart
Vice President
Consented to:
NEW PLAN REALTY TRUST
By: /s/ DEAN BERNSTEIN
-----------------------------
Dean Bernstein
Vice President
THE BANK OF NEW YORK, as Agent
By: /s/ ANDREA STUART
-----------------------------
Andrea Stuart
Vice President
- 7 -