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EXHIBIT 10.3
FACILITY I AMENDMENT XX. 0
XXXXXXXXX XX. 0
TO CREDIT AGREEMENT
THIS AMENDMENT NO. 4 TO CREDIT AGREEMENT (the "Amendment") is made and
entered into as of May 9, 2001, among NEW PLAN EXCEL REALTY TRUST, INC., a
Maryland corporation (the "Borrower"), each lender under the hereinafter defined
Credit Agreement (including each "Designated Lender" existing as of the date
hereof) (each a "Lender" and, collectively, the "Lenders"), THE BANK OF NEW
YORK, as administrative agent (in such capacity, the "Administrative Agent"),
and BANK ONE, NA and FLEET NATIONAL BANK, f/k/a BankBoston, N.A. (each a
"Co-Documentation Agent" and, collectively, the "Co-Documentation Agents").
RECITALS:
A. The Borrower, the Lenders, the Administrative Agent and the
Co-Documentation Agents entered into that certain Credit Agreement dated as of
November 17, 1999 (as amended, the "Credit Agreement"; capitalized terms used in
this Amendment which are not otherwise defined herein shall have the meaning
ascribed to such terms in the Credit Agreement).
B. The Borrower has requested certain amendments to Section 8.2 and
other provisions of the Credit Agreement be amended as hereinafter set forth.
C. The Administrative Agent, the Co-Documentation Agent and the Lenders
are agreeable to such request, subject to the terms of this Amendment.
NOW, THEREFORE, for and in consideration of the mutual promises and
mutual agreements contained herein, and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties hereto
do hereby agree as follows:
1. Additional Definitions. The following additional defined terms are
hereby added to Section 1.1:
"Other Guaranty" each guaranty substantially in the form of
Exhibit N executed by each Other Guarantor and delivered to the
Administrative Agent for the benefit of the Lenders after the
Effective Date.
"Other Guarantor": any wholly-owned Subsidiary required to
execute and
deliver an Other Guaranty pursuant to Section 7.11(b).
2. Amended Definitions. The definitions of "Guaranty" and "Required
Additional Guarantors" in Section 1.1 are hereby amended and restated in their
entirety as follows:
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"Guaranty": collectively, (i) a guaranty, substantially in the
form of Exhibit F executed by each of the Subsidiary Guarantors
identified on Schedule 4.4 and delivered to the Administrative Agent
for the benefit of the Lenders on or prior to the Effective Date,
(ii) each additional guaranty substantially in the form of Exhibit
F executed by each Required Additional Guarantor and delivered to
the Administrative Agent for the benefit of the Lenders after the
Effective Date and (iii) each Other Guaranty.
"Required Additional Guarantor": any Subsidiary required to
execute and deliver a Guaranty pursuant to Section 7.11(a).
3. Amendment of Section 7.11. Section 7.11 of the Credit Agreement is
hereby amended by deleting Section 7.11 in its entirety and substituting in its
place the following new Section 7.11:
7.11 Additional Guarantors.
(a) At any time after the date hereof, and with respect to any
Subsidiary of the Borrower, whether presently existing or hereafter
formed or acquired (other than Excel Realty Partners, L.P. and E. H.
Properties, L.P.) which is not a Subsidiary Guarantor at such time,
cause such Subsidiary to execute and deliver a Guaranty to the
Administrative Agent, for the benefit of the Lenders, promptly after
the Administrative Agent's request therefor, duly executed by such
Subsidiary (together with certificates and attachments of a nature
similar to those described in Section 5.1(b) and (c) with respect to
such Subsidiary and an opinion of counsel of a nature similar to
those in the form required pursuant to Section 5.7(iii)) if at such
time such Subsidiary owns Property having a book value of
$75,000,000 or more. Notwithstanding the foregoing, the foregoing
book value conditions of this Section shall not be applicable from
and after the occurrence of, and during the continuance of, an Event
of Default (it being understood that at such time, the
Administrative Agent can require any Subsidiary of the Borrower
which has not executed a Guaranty to immediately comply with
requirements of this Section).
(b) At any time after the date hereof, and in connection with a
transfer of one or more assets of the Borrower to a wholly owned
Subsidiary of the Borrower (other than a transfer to a Subsidiary
Guarantor, or a Subsidiary which is required to be a Subsidiary
Guarantor pursuant to Section 7.11(a)) pursuant to Section
8.2(b)(iii), whether presently existing or hereafter formed or
acquired, cause such Subsidiary to execute and deliver an Other
Guaranty to the Administrative Agent, for the benefit of the
Lenders, duly executed by such Subsidiary (together with
certificates and attachments of a nature similar to those described
in
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Section 5.1(b) and (c) with respect to such Subsidiary and an
opinion of counsel of a nature similar to the form required pursuant
to Section 5.7(iii)).
4. Amendment of Section 8.2. Section 8.2 of the Credit Agreement is
hereby amended by deleting subsection (b) thereof in its entirety and
substituting in its place the following new subsection (b):
(b) Sell, transfer, contribute, master lease or dispose of any
of its Property, either directly or indirectly, except that if at the
time thereof and immediately after giving effect thereto, no Default
shall have occurred, (i) any Subsidiary of the Borrower may sell,
transfer, contribute, master lease or otherwise dispose of its
assets to the Borrower or to any other Subsidiary, (ii) the Borrower
may sell, transfer, contribute, master lease or otherwise dispose of
its assets to any Subsidiary Guarantor, (iii) the Borrower may sell,
transfer, contribute, master lease or otherwise dispose of assets to
an Other Guarantor if such sale, transfer, contribution master lease
or other disposition is for the purpose of ultimately disposing of
such assets through the sale, transfer, contribution, master lease
or other disposition of the ownership interests of Borrower in such
Subsidiary to a third party in a transaction permitted by clause
(v) below, (iv) in connection with any transaction pursuant to
which a Real Property asset of Borrower is or will be encumbered
with a mortgage (as permitted under Section 8.1(vii)), the Borrower
may transfer such asset to any Subsidiary, and (v) the Borrower or
any Subsidiary of the Borrower may sell, transfer, contribute,
master lease or otherwise dispose of Property in an arm's length
transaction (or, if the transaction involves an Affiliate of the
Borrower or a Subsidiary of the Borrower, if the transaction
complies with Section 8.8), including, without limitation, a
disposition of Property pursuant to a merger or consolidation
involving a Subsidiary (so long as such merger or consolidation is
not prohibited by Section 8.2(a)), for the fair market value
thereof, as reasonably determined by the Borrower, provided that
such transaction could not reasonably be expected to have a Material
Adverse Effect and provided further that for any fiscal year of the
Borrower, any sale, transfer, master lease, contribution or other
disposition of Property in reliance on this clause (v) which when
combined with all other sales, transfers, master leases,
contributions or dispositions of Property in reliance on this clause
(v) made in such fiscal year shall not exceed 25% of the total book
value of all Property of the Borrower and its Subsidiaries
determined as of the first day of such fiscal year.
5. Incorporation of Other Guarantors. Sections 2.11(a), 2.18, 8.9,
9.1(h), 9.1 (i) and 9.1(o) of the Credit Agreement are hereby amended to delete
the phrase
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"Subsidiary Guarantor" in each instance where it appears therein, and substitute
in its place the phrase, "Subsidiary Guarantor and/or Other Guarantor".
6. New Exhibit N. A new Exhibit N entitled "Form of Other Guaranty" in
the form of Attachment 1 to this Amendment is hereby added as an Exhibit to the
Credit Agreement.
7. Reaffirmation of Guaranty. Each Subsidiary Guarantor is executing
this Amendment to evidence its consent and agreement to the terms hereof. Each
Subsidiary Guarantor confirms that the Subsidiary Guaranty is in full force and
effect in accordance with the terms thereof and continues to be the binding
obligation of each Subsidiary Guarantor.
8. Effectiveness of Amendment. The effectiveness of this Amendment is
subject to the receipt by the Administrative Agent, on or before May 9, 2001, of
this Amendment duly executed and delivered by the Borrower, the Subsidiary
Guarantors, the Administrative Agent, each Co-Documentation Agent and the
Required Lenders, in sufficient copies for each Lender, the Administrative Agent
and each Co-Documentation Agent to receive an original thereof.
9. No Other Amendments. Except to the extent amended hereby, all terms,
provisions and conditions of the Credit Agreement shall continue in full force
and effect and shall remain enforceable and binding in accordance with its
terms.
10. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York.
11. Counterparts. This Amendment may be executed in any number of
counterparts, all of which when taken together shall constitute one and the same
document, and each party hereto may execute this Amendment by signing any of
such counterparts.
12. Successors and Assigns. This Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
13. Trust Limitation for New Plan Realty Trust. With respect to New Plan
Realty Trust ("NPRT"), this Amendment and all documents, agreements,
understandings and arrangements relating to this transaction have been
negotiated, executed and delivered on behalf of NPRT 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 NPRT, and no trustee, officer,
employee, agent or shareholder of NPRT shall be bound or held to any personal
liability or responsibility in connection with the agreements, obligations and
undertakings of NPRT hereunder, and any person or entity dealing with NPRT 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
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thereunder. The Administrative Agent, the Co-Documentation Agents and each
Lender hereby acknowledge and agree that each agreement and other document
executed by NPRT in accordance with or in respect of this transaction shall be
deemed and treated to include in all respects and for all purposes the foregoing
exculpatory provision.
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IN WITNESS WHEREOF, the parties hereto and each Subsidiary Guarantor
have caused their duly authorized officers to execute and deliver this Amendment
No. 4 to Credit Agreement as of the date first above written.
NEW PLAN EXCEL REALTY
TRUST, INC.
By: /s/ XXXX XXXXXXXXX
------------------------
Xxxx Xxxxxxxxx
Senior Vice President
THE BANK OF NEW YORK,
as Administrative Agent and a Lender
By: /s/ XXXXXXXXX XXXXXXX
------------------------
Xxxxxxxxx Xxxxxxx
Vice President
BANK ONE, NA
as Co-Documentation Agent
and a Lender
By: /s/ XXXXXXXX XXXXX
------------------------
Name: Xxxxxxxx Xxxxx
Title: Director, Capital Markets
FLEET NATIONAL BANK
F/K/A BANKBOSTON, N.A.
as Co-Documentation Agent
and a Lender
By: /s/ XXXX XXXX
------------------------
Name: Xxxx Xxxx
Title: Vice President
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ARGENTARIA, CAJA POSTAL Y
BANCO HIPOTECARIO S.A.
By: /s/ XXXXXXX XXXXX
------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
By: XXXXXXXXXX XXXXXXX
------------------------
Name: Xxxxxxxxxx Xxxxxxx
Title: Vice President
BANK OF AMERICA, N. A.
By: /s/ XXXXXXX XXXXXXX
-------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
XXXXX XXX COMMERCIAL
BANK, LTD., NEW YORK BRANCH
By:
-------------------------
Name:
Title:
ERSTE BANK
By: /s/ XXXX XXXXXXX
-------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
Erste Bank New York Branch
By: /s/ XXXX XXXXXXX
-------------------------
Name: Xxxx Xxxxxxx
Title: Managing Director
Erste Bank New York Branch
ISRAEL DISCOUNT BANK OF
NEW YORK
By: /s/ XXXX XXXXX
-------------------------
Name: Xxxx Xxxxx
Title: Senior Vice President
By: /s/ XXXX X. XXXXXX
-------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
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PNC BANK, N. A.
By: /s/ XXXXXX XXXXXXXXXXX
-------------------------
Name: Xxxxxx Xxxxxxxxxxx
Title: Vice President
KEY BANK
By: /s/ XXXX XXXXX
-------------------------
Name: Xxxx Xxxxx
Title: Assistant Vice President
Each of the following Subsidiary
Guarantors consents and agrees to
the terms of this Amendment and the
provisions of Section 7 thereof:
NEW PLAN REALTY TRUST
By: /s/ XXXXXX X. XXXXXX
--------------------------------
Name: Xxxxxx Xxxxxx
Title: Sr. VP
EXCEL REALTY TRUST- ST, INC.
By: /s/ XXXXXX X. XXXXXX
--------------------------------
Name: Xxxxxx Xxxxxx
Title: Sr. VP
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