Exhibit 4.3


 


REGISTRATION
RIGHTS AGREEMENT


 


THIS REGISTRATION RIGHTS
AGREEMENT (this “Agreement”) is made and entered into as of September 1,
2004 by and between NEW PLAN EXCEL REALTY TRUST, INC., a Maryland corporation
(the “Company”), and the persons identified on Schedule A
hereto (each a “Holder” and collectively, together with their respective
successors and assigns permitted under Section 7.3 hereof, the “Holders”).


 


WHEREAS, Excel Realty
Partners, L.P., a Delaware limited partnership (the “Partnership”) and
Mingo Marketplace, LC, a Utah limited liability company (the “Seller”),
are entering into a transaction whereby the Seller will contribute the shopping
center property known as “Mingo Marketplace” to the Partnership (such
transaction, the “Transaction”) and, in connection therewith, the
Partnership is issuing an aggregate of 369,257 limited partner units in the
Partnership (such units, the “Units”) to the Holders as set forth
opposite their names on Schedule A hereto;


 


WHEREAS, pursuant to the
terms of Section 8.6 and the other related provisions of the Second
Amended and Restated Agreement of Limited Partnership of the Partnership (such
agreement, as amended from time to time, the “Partnership Agreement”),
commencing on the first anniversary of the date of issuance, and subject to the
various limitations contained in the Partnership Agreement and other
instruments being delivered in connection with the Transaction, the Holders
will be entitled to redeem their Units for cash or, at the Company’s election,
shares of common stock, par value $0.01 per share, of the Company (“Common
Stock”);


 


WHEREAS, the Company has
agreed to grant to the Holders the Registration Rights (as defined in Section 1
hereof);


 


NOW, THEREFORE, the
parties hereto, in consideration of the foregoing, the mutual covenants and
agreements hereinafter set forth, and other good and valuable consideration,
the receipt and sufficiency of which are acknowledged, hereby agree as follows:


 


SECTION 1.                     REGISTRATION  RIGHTS


 


Subject to the various
terms and conditions of the Partnership Agreement and the limitations upon
Holders’ redemption of the Units set forth in other instruments being delivered
in connection with the Transaction, if any Holder receives shares of Common
Stock upon redemption of Units held by such Holder (“Redemption Shares”),
then, unless the Redemption Shares are issued to the Holder pursuant to an
Issuer Registration Statement as provided in Section 2 hereof, each Holder
shall be entitled to offer the Redemption Shares for sale pursuant to a shelf
registration statement, subject to the terms and conditions set forth in Section 3
hereof (the “Registration Rights”).


 

















 


SECTION 2.                        ISSUER
REGISTRATION STATEMENT


 


Subject to the provisos
set forth in the following sentence, the Company shall use commercially
reasonable efforts to, during the period beginning fifteen (15) days prior to
the date the Holders are first permitted to redeem the Units pursuant to the
Partnership Agreement and ending fifteen (15) days thereafter, cause to be
filed with the Securities and Exchange Commission (the “Commission”) a
registration statement (an “Issuer Registration Statement”) that
complies as to form in all material respects with applicable Commission rules providing
for the registration of the Redemption Shares to be issued to the Holders.  The Company shall use commercially reasonable
efforts to cause the Issuer Registration Statement to be declared effective by
the Commission as soon as practicable following the filing thereof; provided, that the Company shall be
entitled to postpone the filing, or the effectiveness, of the Issuer
Registration Statement if (i) the Company is actively pursuing an
underwritten primary offering of equity securities, or (ii) the
negotiation or consummation of a transaction by the Company or its subsidiaries
is pending or an event has occurred, which negotiation, consummation or event
would require additional disclosure by the Company in the Issuer Registration
Statement of material information which the Company has a bona fide
business purpose for keeping confidential and the non-disclosure of which in
the Issuer Registration Statement would be expected, in the Company’s
reasonable determination, to cause the Issuer Registration Statement to fail to
comply with applicable disclosure requirements (each such circumstance a “Suspension
Event”); provided, however, that the Company may not delay
the filing, or the effectiveness, of the Issuer Registration Statement for more
than sixty (60) days. The Company agrees to use commercially reasonable
efforts to keep such Issuer Registration Statement continuously effective until
such time as the Holders no longer own any Units.  Anything contained herein to the contrary
notwithstanding, in the event that the Redemption Shares are issued by the
Company to the Holders pursuant to an Issuer Registration Statement, the
Company shall be deemed to have satisfied all of its registration obligations
under this Agreement in respect of such Redemption Shares.


 


SECTION 3.                     DEMAND
REGISTRATION RIGHTS


 


3.1  (a)  Registration Procedure.  Unless such Redemption Shares have been
included in the filing of an Issuer Registration Statement as provided in Section 2
hereof, then, subject to Sections 3.1(c) and 3.2 hereof, any Holder may
deliver to the Company, at any time after the last date on which an Issuer
Registration Statement may be filed as provided in Section 2 hereof, a
written notice (a “Registration Notice”) informing the Company of its
desire to have the Redemption Shares underlying its Units registered for sale
(such Redemption Shares, together with all additional shares of Common Stock
which may be issued in the future upon redemption of any remaining Units held
by such Holder, referred to herein as the “Registrable Securities”); provided, however,
that if the Redemption Shares have been included in the Issuer Registration
Statement and the Issuer Registration Statement has not been declared effective
by the Commission within ninety (90) days after the original filing date or the
Company is unable to keep such Issuer Registration Statement effective until
such time as the Holder no longer owns any Units, such Holder shall be entitled
to exercise the rights provided under this Section 3.1.  Upon receipt of the Registration Notice, if
the Company has not already caused the Registrable


 


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Securities to be included
as part of an existing shelf registration statement and related prospectus that
the Company then has on file with, and has been declared effective by, the
Commission and which remains in effect and not subject to any stop order,
injunction or other order or requirement of the Commission (the “Shelf
Registration Statement”) (in which event the Company shall be deemed to
have satisfied its registration obligation under this Section 3), then the
Company will cause to be filed with the Commission as soon as reasonably
practicable after receiving the Registration Notice, but in no event more than
sixty (60) days following receipt of such notice, a new registration statement
and related prospectus (the “New Registration Statement”) that complies
as to form in all material respects with applicable Commission rules providing
for the sale by such Holder of the Registrable Securities, and agrees (subject
to Section 3.2 hereof) to use commercially reasonable efforts to cause the
New Registration Statement to be declared effective by the Commission as soon
as practicable. (As used herein, “Registration Statement” and “Prospectus”
refer to the Shelf Registration Statement and related prospectus (including any
preliminary prospectus) or the New Registration Statement and related
prospectus (including any preliminary prospectus), whichever is utilized by the
Company to satisfy Holder’s Registration Rights pursuant to this Section 3,
including, in each case, any documents incorporated therein by reference.)


 


Subject to Section 3.2
hereof, the Company agrees to use commercially reasonable efforts to keep the
Registration Statement continuously effective (including the preparation and
filing of any amendments and supplements necessary for that purpose) until the
earlier of (i) the date that is two (2) years after the date of
effectiveness of the Registration Statement, (ii) the date on which all of
the Redemption Shares held by the Holder are eligible for immediate sale
pursuant to Rule 144(k) (or any successor provision) or in a single
transaction under Rule 144(e) (or any successor provision) under the
Securities Act of 1933, as amended (the “Securities Act”), or (iii) the
date on which the Holder consummates the sale of all of the Redemption
Shares.  Notwithstanding the foregoing,
the Company may at any time, in its sole discretion and prior to receiving a
Registration Notice from any Holder, include all of any Holder’s Redemption
Shares or any portion thereof in any Registration Statement (in which event the
Company shall be deemed to have satisfied its registration obligation under
this Section 3.1(a) so long as such shelf Registration Statement
remains effective and not the subject of any stop order, injunction or other
order of the Commission).


 


(b)  Offers and
Sales.  All offers and sales by a
Holder under the Registration Statement shall be completed within the period
during which the Registration Statement remains effective and not the subject
of any stop order, injunction or other order of the Commission.  Upon notice that such shelf Registration
Statement is no longer effective no Holder will offer or sell the Registrable
Securities under the Registration Statement. 
If directed in writing by the Company, each Holder will return all
undistributed copies of the Prospectus in its possession upon the expiration of
such period.


 


(c)  Limitations
on Registration Rights.  Holders,
together with all permitted assignees of such Holders pursuant to Section 7.3
hereof, shall be entitled collectively to eight (8) exercises of the
Registration Rights under Section 3.1(a). 
The right of any Holder to deliver a Registration Notice commences upon
the first date the Holder is permitted to redeem the Units


 


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pursuant to the
Partnership Agreement and other instruments being delivered in connection with
the Transaction.  The right of any Holder
under this Section 3.1 shall expire upon the earlier of (i) the later
to occur of (a) the date that is ten (10) years from the date hereof
and (b) the date that is six (6) months after the occurrence of a
Step-Up Event (as defined below) with respect to at least ninety-five percent
(95%) of the Units issued to the Holder in connection with the Transaction or (ii) the
date on which all of the Redemption Shares held by the Holder or issuable upon
redemption of the Units held by the Holder are eligible for immediate sale
pursuant to Rule 144(k) (or any successor provision) or in a single
transaction pursuant to Rule 144(e) (or any successor provision)
under the Securities Act.  The
Registration Rights granted pursuant to this Section 3 may not be
exercised in connection with any underwritten public offering by the Company or
by any Holder without the prior written consent of the Company.  A “Step-Up Event” shall be deemed to have
occurred with respect to any Units when the basis of such Units for federal
income tax purposes is adjusted to fair market value by reason of either death
or a gain recognition event.


 


3.2  Suspension of Offering.  Notwithstanding Section 3.1(a) hereof,
the Company shall be entitled to postpone the filing of the Registration
Statement, and from time to time to require Holders not to sell under the
Registration Statement or to suspend the effectiveness thereof, upon the
occurrence of a Suspension Event; provided, however, that the Company may not delay,
suspend or withdraw the Registration Statement for more than sixty (60) days
at any one time, or more than twice in any twelve (12) month period.  Upon receipt of any written notice from the
Company of the happening of any Suspension Event during the period the
Registration Statement is effective or if as a result of a Suspension Event the
Registration Statement or related Prospectus contains any untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made (in the case of the Prospectus) not misleading, each
Holder agrees that (i) it will immediately discontinue offers and sales of
the Registrable Securities under the Registration Statement until the Holder
receives copies of a supplemental or amended Prospectus (which the Company
agrees to promptly prepare) that corrects the misstatement(s) or omission(s)
referred to above and receives notice that any post-effective amendment has
become effective or unless otherwise notified by the Company that it may resume
such offers and sales, and (ii) it will maintain the confidentiality of
any information included in the written notice delivered by the Company unless
otherwise required by law or subpoena. 
If so directed by the Company, each Holder will deliver to the Company
all copies of the Prospectus covering the Registrable Securities current at the
time of receipt of such notice.


 


3.3  Qualification.  The Company agrees to use commercially
reasonable efforts to register or qualify the Registrable Securities by the
time the applicable Registration Statement is declared effective by the
Commission under all applicable state securities or “blue sky” laws of such
jurisdictions as any Holder may reasonably request in writing, to keep each
such registration or qualification effective during the period such
Registration Statement is required to be kept effective pursuant to this
Agreement or during the period offers or sales are being made by the Holders
after delivery of a Registration Notice to the Company, whichever is shorter,
and to do any and all other similar acts and things which may be reasonably
necessary or advisable to enable the Holders to consummate the disposition of
the Registrable Securities owned by the


 


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Holders in each such
jurisdiction; provided, however, that the
Company shall not be required to (i) qualify generally to do business in
any jurisdiction or to register as a broker or dealer in such jurisdiction
where it would not otherwise be required to qualify but for this Agreement, (ii) take
any action that would cause it to become subject to any taxation in any
jurisdiction where it would not otherwise be subject to such taxation or (iii) take
any action that would subject it to the general service of process in any
jurisdiction where it is not then so subject.


 


3.4  Obligations of the Company.  When the Company is required to effect the
registration of Registrable Securities under the Securities Act pursuant to Section 3.1
of this Agreement, subject to Section 3.2 hereof, the Company shall:


 


(a)  prepare and
file with the Commission such amendments and supplements as to the Registration
Statement and the Prospectus used in connection therewith as may be necessary (i) to
keep such Registration Statement effective and (ii) to comply with the
provisions of the Securities Act with respect to the disposition of the
Registrable Securities covered by such Registration Statement, in each case for
such time as is contemplated in Section 3.1(a) above;


 


(b)  furnish,
without charge, to the Holders such number of copies of the Registration
Statement, each amendment and supplement thereto (in each case including all
exhibits), and the Prospectus included in such Registration Statement
(including each preliminary Prospectus) in conformity with the requirements of
the Securities Act as the Holders may reasonably request in order to facilitate
the public sale or other disposition of the Registrable Securities owned by the
Holders;


 


(c)  promptly notify
the Holders: (i) when the Registration Statement, any pre-effective
amendment, the Prospectus or any prospectus supplement related thereto or
post-effective amendment to the Registration Statement has been filed, and,
with respect to the Registration Statement or any post-effective amendment,
when the same has become effective, (ii) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement or
the initiation or threat of any proceedings for that purpose, and (iii) of
the receipt by the Company of any notification with respect to the suspension
of the qualification of any Registrable Securities for sale under the
securities or “blue sky” laws of any jurisdiction or the initiation of any
proceeding for such purpose;


 


(d)  promptly use
commercially reasonable efforts to prevent the issuance of any order suspending
the effectiveness of a Registration Statement, and, if any such order
suspending the effectiveness of a Registration Statement is issued, shall promptly
use commercially reasonable efforts to obtain the withdrawal of such order at
the earliest possible moment;


 


(e)  if the
Registrable Securities are of a class of securities that is listed on a
national securities exchange, file copies of any Prospectus with such exchange
in compliance with Rule 153 under the Securities Act so that the Holders
shall benefit from the prospectus delivery procedures described therein;


 


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(f)  following
receipt of a Registration Notice and thereafter until the sooner of completion,
abandonment or termination of the offering or sale contemplated thereby and the
expiration of the period during which the Company is required to maintain the
effectiveness of the related Registration Statement as set forth in Section 3.1(a) above,
promptly notify the Holders: (i) of the existence of any fact of which the
Company is aware or the happening of any event which has resulted in (A) the
Registration Statement, as then in effect, containing an untrue statement of a
material fact or omitting to state a material fact required to be stated
therein or necessary to make any statements therein not misleading or (B) the
Prospectus included in such Registration Statement containing an untrue statement
of a material fact or omitting to state a material fact required to be stated
therein or necessary to make any statements therein, in the light of the
circumstances under which they were made, not misleading, and (ii) of the
Company’s reasonable determination that a post-effective amendment to the
Registration Statement would be appropriate or that there exist circumstances
not yet disclosed to the public which make further sales under such
Registration Statement inadvisable pending such disclosure and post-effective
amendment; and, if the notification relates to any event described in either of
the clauses (i) or (ii) of this Section 3.4(f), subject to Section 3.2
above, at the request of the Holders, the Company shall prepare and furnish to
the Holders a reasonable number of copies of a supplement or post-effective
amendment to such Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other required document so that (1) such
Registration Statement shall not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (2) as
thereafter delivered to the purchasers of the Redemption Shares being sold
thereunder, such Prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading;


 


(g)  use
commercially reasonable efforts to cause all such Registrable Securities to be
listed on the national securities exchange on which the Common Stock is then
listed, if the listing of Registrable Securities is then permitted under the rules of
such national securities exchange; and


 


(h)  if requested by
any Holder participating in the offering of Registrable Securities, incorporate
in a prospectus supplement or post-effective amendment such information
concerning the Holder or the intended method of distribution as the Holder
reasonably requests to be included therein and is reasonably necessary to
permit the sale of the Registrable Securities pursuant to the Registration
Statement, including, without limitation, information with respect to the
number of Registrable Securities being sold, the purchase price being paid
therefor and any other material terms of the offering of the Redemption Shares
to be sold in such offering; provided, however,
that the Company shall not be obligated to include in any such prospectus
supplement or post-effective amendment any requested information that is not
required by the rules of the Commission and is unreasonable in scope
compared with the Company’s most recent prospectus or prospectus supplement
used in connection with a primary or secondary offering of equity securities by
the Company.


 


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3.5  Obligations of the Holder.  In connection with any Registration Statement
utilized by the Company to satisfy the Registration Rights pursuant to this Section 3,
each Holder agrees to cooperate with the Company in connection with the
preparation of the Registration Statement, and each Holder agrees that it will (i) respond
within ten (10) Business Days to any written request by the Company to
provide or verify information regarding the Holder or the Holder’s Registrable
Securities (including the proposed manner of sale) that may be required to be
included in such Registration Statement pursuant to the rules and
regulations of the Commission, and (ii) provide in a timely manner
information regarding the proposed distribution by the Holder of the
Registrable Securities and such other information as may be requested by the
Company from time to time in connection with the preparation of and for
inclusion in the Registration Statement and related Prospectus. As used in this
Agreement, a “Business Day” is any Monday, Tuesday, Wednesday, Thursday
or Friday other than a day on which banks and other financial institutions are
authorized or required to be closed for business in the State of New York.


 


SECTION 4.                     INDEMNIFICATION;
CONTRIBUTION


 


4.1  Indemnification by the Company.  The Company agrees to indemnify and hold
harmless each Holder and each person, if any, who controls any Holder within
the meaning of Section 15 of the Securities Act or Section 20 of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), and
any of their partners, members, officers, directors, employees or
representatives, as follows:


 


(i)                                     against any and
all loss, liability, claim, damage, judgment and expense whatsoever, as
incurred, arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any
amendment thereto) pursuant to which the Registrable Securities were registered
under the Securities Act, including all documents incorporated therein by
reference, or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein not
misleading or arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in any Prospectus (or any
amendment or supplement thereto), including all documents incorporated therein
by reference, or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;


 


(ii)                                  against any and all
loss, liability, claim, damage, judgment and expense whatsoever, as incurred,
to the extent of the aggregate amount paid in settlement of any litigation, or
investigation or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, if such settlement
is effected with the written consent of the Company; and


 


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(iii)                               against any and all
expense whatsoever, as incurred (including reasonable fees and disbursements of
counsel), reasonably incurred in investigating, preparing or defending against
any litigation, or investigation or proceeding by any governmental agency or
body, commenced or threatened, in each case whether or not a party, or any
claim whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense is
not paid under subparagraph (i) or (ii) above;


 


provided, however,
that the indemnity provided pursuant to this Section 4.1 does not apply to
any Holder with respect to any loss, liability, claim, damage, judgment or
expense to the extent arising out of (A) any untrue statement or omission
or alleged untrue statement or omission made in reliance upon and in conformity
with written information furnished to the Company by such Holder expressly for
use in the Registration Statement (or any amendment thereto) or the Prospectus
(or any amendment or supplement thereto), or (B) any Holder’s failure to
deliver an amended or supplemental Prospectus furnished to the Holder by the
Company, if such loss, liability, claim, damage, judgment or expense would not
have arisen had such delivery occurred.


 


4.2  Indemnification by Holder.  Each Holder (and each permitted assignee of
such Holder, on a several basis) severally and not jointly agrees to indemnify
and hold harmless the Company, and each of its directors and officers
(including each director and officer of the Company who signed a Registration
Statement), and each person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, as follows:


 


(i)                                     against any and
all loss, liability, claim, damage, judgment and expense whatsoever, as
incurred, arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any
amendment thereto) pursuant to which the Registrable Securities of such Holder
were registered under the Securities Act, including all documents incorporated
therein by reference, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the statements
therein not misleading or arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any Prospectus (or any
amendment or supplement thereto), including all documents incorporated therein
by reference, or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;


 


(ii)                                  against any and all
loss, liability, claim, damage, judgment and expense whatsoever, as incurred,
to the extent of the aggregate amount paid in settlement of any litigation, or
investigation or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, if such settlement
is effected with the written consent of the Holder; and


 


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(iii)                               against any and all
expense whatsoever, as incurred (including reasonable fees and disbursements of
counsel), reasonably incurred in investigating, preparing or defending against
any litigation, or investigation or proceeding by any governmental agency or
body, commenced or threatened, in each case whether or not a party, or any
claim whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense is
not paid under subparagraph (i) or (ii) above;


 


provided, however,
that the indemnity provided pursuant to this Section 4.2 shall only apply
with respect to any loss, liability, claim, damage, judgment or expense to the
extent arising out of (A) any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
written information furnished to the Company by such Holder expressly for use
in the Registration Statement (or any amendment thereto) or the Prospectus (or
any amendment or supplement thereto) or (B) any Holder’s failure to
deliver an amended or supplemental Prospectus furnished to the Holder by the
Company, if such loss, liability, claim, damage or expense would not have
arisen had such delivery occurred. 
Notwithstanding the provisions of this Section 4.2, a Holder and
any permitted assignee shall not be required to indemnify the Company, its
officers, directors or control persons with respect to any amount in excess of
the amount of the total proceeds to the Holder or such permitted assignee, as
the case may be, from sales of the Registrable Securities of the Holder under
the Registration Statement that is the subject of the indemnification claim.


 


4.3  Conduct of Indemnification Proceedings.  An indemnified party hereunder shall give
reasonably prompt notice to the indemnifying party of any action or proceeding
commenced against it in respect of which indemnity may be sought hereunder, but
failure to so notify the indemnifying party (i) shall not relieve it from
any liability which it may have under the indemnity agreement provided in Section 4.1
or 4.2 above, unless and only to the extent it did not otherwise learn of such
action and the lack of notice by the indemnified party results in the
forfeiture by the indemnifying party of substantial rights and defenses, and (ii) shall
not, in any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided under Section 4.1
or 4.2 above.  If the indemnifying party
so elects within a reasonable time after receipt of such notice, the
indemnifying party may assume the defense of such action or proceeding at such
indemnifying party’s own expense with counsel chosen by the indemnifying party
and approved by the indemnified party, which approval shall not be unreasonably
withheld; provided, however, that the indemnifying
party will not settle, compromise or consent to the entry of any judgment with
respect to any such action or proceeding without the written consent of the
indemnified party unless such settlement, compromise or consent secures the
unconditional release of the indemnified party; and provided
further, that, if the indemnified party reasonably determines that a
conflict of interest exists where it is advisable for the indemnified party to
be represented by separate counsel or that, upon advice of counsel, there may
be legal defenses available to it which are different from or in addition to
those available to the indemnifying party, then the indemnifying party shall
not be entitled to assume such defense and the indemnified party shall be
entitled to separate counsel at the indemnifying party’s expense. If the
indemnifying party is not entitled to assume the defense of such action or
proceeding as a result of the second proviso to the preceding sentence, the


 


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indemnifying party’s
counsel shall be entitled to conduct the indemnifying party’s defense and
counsel for the indemnified party shall be entitled to conduct the defense of
the indemnified party, it being understood that both such counsel will
cooperate with each other to conduct the defense of such action or proceeding
as efficiently as possible. If the indemnifying party is not so entitled to
assume the defense of such action or does not assume such defense, after having
received the notice referred to in the first sentence of this paragraph, the
indemnifying party will pay the reasonable fees and expenses of counsel for the
indemnified party. In such event, however, the indemnifying party will not be
liable for any settlement effected without the written consent of the
indemnifying party. If an indemnifying party is entitled to assume, and
assumes, the defense of such action or proceeding in accordance with this
paragraph, the indemnifying party shall not be liable for any fees and expenses
of counsel for the indemnified party incurred thereafter in connection with
such action or proceeding.


 


4.4  Contribution.  In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Sections 4.1 and 4.2 above is for any reason held to be unenforceable by the
indemnified party although applicable in accordance with its terms, the Company
and the relevant Holder shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by such indemnity
agreement incurred by the Company and the Holder, in such proportion as is
appropriate to reflect the relative fault of the Company on the one hand and
the Holder on the other hand, in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities, or expenses.  The relative fault of the indemnifying party
and indemnified party shall be determined by reference to, among other things,
whether the action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact, has been made by, or relates to information supplied by, the
indemnifying party or the indemnified party, and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
action.


 


The parties hereto agree
that it would not be just or equitable if contribution pursuant to this Section 4.4
were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 4.4, a Holder
shall not be required to contribute any amount in excess of the amount of the
total proceeds to the Holder from sales of the Registrable Securities of the
Holder under the Registration Statement that is the subject of the
indemnification claim.


 


Notwithstanding the
foregoing, no person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 4.4, each person, if any,
who controls a Holder within the meaning of Section 15 of the Securities
Act shall have the same rights to contribution as the Holder, and each director
of the Company, each officer of the Company who signed a Registration Statement
and each person, if any, who controls the Company within the meaning of Section 15
of the Securities Act shall have the same rights to contribution as the
Company.


 


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SECTION 5.                        EXPENSES


 


The Company shall pay all
expenses incident to the performance by the Company of its registration
obligations under Sections 2 and 3 above, including (i) all stock
exchange, Commission and state securities registration, listing and filing
fees, (ii) all expenses incurred in connection with the preparation,
printing and distribution of any Issuer Registration Statement or Registration
Statement and Prospectus and all amendments and supplements thereto, and (iii) fees
and disbursements of counsel for the Company and of the independent public
accountants of the Company.  Each Holder
shall be responsible for the payment of any brokerage and sales commissions,
fees and disbursements of the Holder’s counsel, accountants and other advisors,
and any transfer taxes relating to the sale or disposition of the Registrable
Securities by such Holder pursuant to this Agreement.


 


SECTION 6.                        RULE 144
COMPLIANCE


 


The Company covenants
that it will use its best efforts to timely file the reports required to be
filed by the Company under the Securities Act and the Exchange Act so as to
enable the Holders to sell the Redemption Shares pursuant to Rule 144
under the Securities Act. In connection with any sale, transfer or other
disposition by a Holder of any Redemption Shares pursuant to Rule 144
under the Securities Act, the Company shall cooperate with the Holder to
facilitate the timely preparation and delivery of certificates representing the
Redemption Shares to be sold and not bearing any Securities Act legend, and
enable certificates for such Redemption Shares to be for such number of shares
and registered in such names as Holder may reasonably request at least
five (5) Business Days prior to any sale of Redemption Shares
hereunder.


 


SECTION 7.                        MISCELLANEOUS


 


7.1  Integration; Amendment.  This Agreement constitutes the entire
agreement among the parties hereto with respect to the matters set forth herein
and supersedes and renders of no force and effect all prior oral or written
agreements, commitments and understandings among the parties with respect to
the matters set forth herein. Except as otherwise expressly provided in this
Agreement, no amendment, modification or discharge of this Agreement shall be
valid or binding unless set forth in writing and duly executed by each of the
parties hereto.


 


7.2  Waivers.  No waiver by a party hereto shall be
effective unless made in a written instrument duly executed by the party
against whom such waiver is sought to be enforced, and only to the extent set
forth in such instrument. Neither the waiver by any of the parties hereto of a
breach or a default under any of the provisions of this Agreement, nor the
failure of any of the parties, on one or more occasions, to enforce any of the
provisions of this Agreement or to exercise any right or privilege hereunder shall
thereafter be construed as a waiver of any subsequent breach or default of a
similar nature, or as a waiver of any such provisions, rights or privileges
hereunder.


 


7.3  Assignment; Successors and Assigns.  This Agreement and the rights granted
hereunder may not be assigned by any Holder without the written consent of the
Company;


 


11

















 


provided, however,
that a Holder may assign its rights and obligations hereunder, following at
least ten (10) days prior written notice to the Company, to a permitted
transferee in connection with a transfer of some or all of such Holder’s Units
in accordance with the terms of the Partnership Agreement, if such transferee
agrees in writing to be bound by all of the provisions hereof.  This Agreement shall inure to the benefit of
and be binding upon all of the parties hereto and their respective heirs,
executors, personal and legal representatives, successors and permitted
assigns, including, without limitation, any successor of the Company by merger,
acquisition, reorganization, recapitalization or otherwise.


 


7.4  Notices.  All notices called for under this Agreement
shall be in writing and shall be deemed given upon receipt if delivered
personally or by facsimile transmission and followed promptly by mail, or
mailed by registered or certified mail (return receipt requested), postage
prepaid, or overnight delivery service, to the parties at the addresses set
forth opposite their signatures below, or to any other address or addressee as
any party entitled to receive notice under this Agreement shall designate, from
time to time, to others in the manner provided in this Section 7.4 for the
service of notices; provided, however,
that notices of a change of address shall be effective only upon receipt
thereof. Any notice delivered to the party hereto to whom it is addressed shall
be deemed to have been given and received on the day it was received; provided, however, that if such day is not a Business Day,
then the notice shall be deemed to have been given and received on the Business
Day next following such day and if any party rejects delivery of any notice
attempted to be given hereunder, delivery shall be deemed given on the date of
such rejection.  Any notice sent by
facsimile transmission shall be deemed to have been given and received on the
Business Day next following the transmission.


 


7.5  Specific Performance.  The parties hereto acknowledge that the
obligations undertaken by them hereunder are unique and that there would be no
adequate remedy at law if any party fails to perform any of its obligations
hereunder, and accordingly agree that each party, in addition to any other
remedy to which it may be entitled at law or in equity, shall be entitled to (i) compel
specific performance of the obligations, covenants and agreements of any other
party under this Agreement in accordance with the terms and conditions of this
Agreement and (ii) obtain preliminary injunctive relief to secure specific
performance and to prevent a breach or contemplated breach of this Agreement in
any court of the United States or any State thereof having jurisdiction.


 


7.6  Governing Law.  This Agreement, the rights and obligations of
the parties hereto, and any claims or disputes relating thereto, shall be
governed by and construed in accordance with the laws of the State of Maryland,
but not including the choice of law rules thereof.


 


7.7  Headings.  Section and subsection headings
contained in this Agreement are inserted for convenience of reference only,
shall not be deemed to be a part of this Agreement for any purpose, and shall
not in any way define or affect the meaning, construction or scope of any of
the provisions hereof.


 


7.8  Pronouns.  All pronouns and any variations thereof shall
be deemed to refer to


 


12

















 


the masculine, feminine,
neuter, singular or plural, as the identity of the person or entity may
require.


 


7.9  Execution in Counterparts.  To facilitate execution, this Agreement may
be executed in as many counterparts as may be required. It shall not be
necessary that the signature of or on behalf of each party appears on each
counterpart, but it shall be sufficient that the signature of or on behalf of
each party appears on one or more of the counterparts. All counterparts shall
collectively constitute a single agreement. It shall not be necessary in any
proof of this Agreement to produce or account for more than a number of
counterparts containing the respective signatures of or on behalf of all of the
parties.


 


7.10  Severability.  If fulfillment of any provision of this
Agreement, at the time such fulfillment shall be due, shall transcend the limit
of validity prescribed by law, then the obligation to be fulfilled shall be
reduced to the limit of such validity; and if any clause or provision contained
in this Agreement operates or would operate to invalidate this Agreement, in
whole or in part, then such clause or provision only shall be held ineffective,
as though not herein contained, and the remainder of this Agreement shall
remain operative and in full force and effect.


 


Signatures on following page


 


13

















 


IN WITNESS WHEREOF, each
of the parties hereto has caused this Agreement to be duly executed on its
behalf as of the date first herein above set forth.


 


 


	
  Address:

  	
  COMPANY:

  
	
   

  	
   

  
	
   

  	
   

  
	
  1120 Avenue of the
  Americas

  	
  NEW PLAN EXCEL REALTY
  TRUST, INC.

  
	
  Suite 1200

  	
   

  
	
  New York, NY 10036

  	
   

  
	
  Fax No.: (212) 869-7460

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Steven
  F. Siegel

  	
   

  
	
   

  	
  Name: Steven F. Siegel

  
	
   

  	
  Title: Executive Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
  Address:

  	
  HOLDERS:

  
	
   

  	
   

  
	
  3863 E. Brockbank Drive

  	
   

  
	
  Salt Lake City, Utah
  84124

  	
   

  
	
   

  	
    /s/
  Warren P. King

  	
   

  
	
   

  	
  Warren P. King

  
	
   

  	
   

  
	
  3863 E. Brockbank Drive

  	
   

  
	
  Salt Lake City, Utah
  84124

  	
   

  
	
   

  	
    /s/
  Florence K. King

  	
   

  
	
   

  	
  Florence K. King

  
	
   

  	
   

  
	
  3863 E. Brockbank Drive

  	
   

  
	
  Salt Lake City, Utah
  84124

  	
   

  
	
   

  	
  Warren P. King &
  Co., Ltd.

  
	
   

  	
   

  
	
   

  	
  By

  	
    /s/ Warren
  P. King

  	
   

  
	
   

  	
  Name: Warren P. King

  
	
   

  	
  Title: General Partner

  
	
   

  	
   

  
	
  3863 E. Brockbank Drive

  	
   

  
	
  Salt Lake City, Utah
  84124

  	
   

  
	
   

  	
  W.P. King Company

  
	
   

  	
   

  
	
   

  	
  By

  	
    /s/ Warren
  P. King

  	
   

  
	
   

  	
  Name: Warren P. King

  
	
   

  	
  Title: General Partner

  
					



 


14

















 


	
  1620 Sunset Oaks Drive

  	
   

  
	
  Salt Lake City, Utah
  84108

  	
   

  
	
   

  	
    /s/
  Sam W. Souvall

  	
   

  
	
   

  	
  Sam W. Souvall

  
	
   

  	
   

  
	
  2891 East 3300 South

  	
   

  
	
  Salt Lake City, Utah
  84109

  	
   

  
	
   

  	
  S. W. Souvall Co., LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
    /s/ Sam W.
  Souvall

  	
   

  
	
   

  	
  Name: Sam W. Souvall

  
	
   

  	
  Title: Manager

  
	
   

  	
   

  
	
  5230 North 16th Street

  	
   

  
	
  Phoenix, Arizona 85016

  	
   

  
	
   

  	
  YSP, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
    /s/ George
  W. Souvall

  	
   

  
	
   

  	
  Name: George W. Souvall

  
	
   

  	
  Title: Manager

  
	
   

  	
   

  
	
  2918 East Kennedy Drive

  	
   

  
	
  Salt Lake City, Utah
  84108

  	
   

  
	
   

  	
    /s/ Ann
  Souvall Sasich

  	
   

  
	
   

  	
  Ann Souvall Sasich

  
	
   

  	
   

  
	
  2918 East Kennedy Drive

  	
   

  
	
  Salt Lake City, Utah
  84108

  	
   

  
	
   

  	
    /s/ Joseph
  Eli Sasich

  	
   

  
	
   

  	
  Joseph Eli Sasich

  
	
   

  	
   

  
	
   

  	
    /s/ Ann S.
  Sasich

  	
   

  
	
   

  	
  Ann S. Sasich

  
	
   

  	
   

  
	
  2918 East Kennedy Drive

  	
   

  
	
  Salt Lake City, Utah
  84108

  	
   

  
	
   

  	
   

  
	
   

  	
  JESCO L.L.C

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
    /s/ Joseph
  E. Sasich

  	
   

  
	
   

  	
  Name: Joseph E. Sasich

  
					



 


15

















 


SCHEDULE A


 


	
  Holders

  	
   

  	
  Units

  	
   

  
	
  (Name
  and Address)

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Warren P. King

  	
   

  	
  103,208

  	
   

  
	
  3863 E. Brockbank Drive

  	
   

  	
   

  	
   

  
	
  Salt Lake City, Utah
  84124

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Florence K. King

  	
   

  	
  18,278

  	
   

  
	
  3863 E. Brockbank Drive

  	
   

  	
   

  	
   

  
	
  Salt Lake City, Utah
  84124

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Warren P. King &
  Co.

  	
   

  	
  18,278

  	
   

  
	
  3863 E. Brockbank Drive

  	
   

  	
   

  	
   

  
	
  Salt Lake City, Utah
  84124

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  WP King & Co.

  	
   

  	
  44,865

  	
   

  
	
  3863 E. Brockbank Drive

  	
   

  	
   

  	
   

  
	
  Salt Lake City, Utah
  84124

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Sam W. Souvall

  	
   

  	
  101,546

  	
   

  
	
  2891 East 3300 South

  	
   

  	
   

  	
   

  
	
  Salt Lake City, Utah
  84109

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  S. W. Souvall Co., LLC

  	
   

  	
  49,218

  	
   

  
	
  2891 East 3300 South

  	
   

  	
   

  	
   

  
	
  Salt Lake City, Utah
  84109

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  YSP, LLC

  	
   

  	
  17,447

  	
   

  
	
  5230 North 16th Street

  	
   

  	
   

  	
   

  
	
  Phoenix, Arizona 85016

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Ann Souvall Sasich

  	
   

  	
  3,955

  	
   

  
	
  2918 East Kennedy Drive

  	
   

  	
   

  	
   

  
	
  Salt Lake City, Utah
  84108

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Joseph Eli Sasich &
  Ann S. Sasich

  	
   

  	
  3,323

  	
   

  
	
  2918 East Kennedy Drive

  	
   

  	
   

  	
   

  
	
  Salt Lake City, Utah
  84108

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  JESCO L.L.C.

  	
   

  	
  9,139

  	
   

  
	
  2918 East Kennedy Drive

  	
   

  	
   

  	
   

  
	
  Salt
  Lake City, Utah 84108

  	
   

  	
   

  	
   

  



 


16