Exhibit 10.3
AMENDMENT NO. 2 TO
TERM LOAN AGREEMENT
THIS AMENDMENT NO. 2 TO TERM LOAN AGREEMENT (the "Amendment") is made and
entered into as of December 27, 2001, among NEW PLAN EXCEL REALTY TRUST, INC., a
Maryland corporation (the "Borrower"), FLEET NATIONAL BANK, CITIZENS BANK OF
RHODE ISLAND, SUNTRUST BANK, COMPASS BANK, COMERICA BANK and XXXXX FARGO BANK,
NATIONAL ASSOCIATION as the Lenders under the hereinafter defined Loan Agreement
(collectively, "Lenders"), and FLEET NATIONAL BANK, as administrative agent for
the Lenders (in such capacity, the "Administrative Agent").
RECITALS:
A. The Borrower, the Lenders and the Administrative Agent entered into
that certain Term Loan Agreement dated as of May 9, 2001, as amended by that
certain Amendment No. 1 to Term Loan Agreement dated as of September 6, 2001 (as
amended, the "Loan Agreement"; capitalized terms used in this Amendment which
are not otherwise defined herein shall have the meaning ascribed to such terms
in the Loan Agreement).
B. The Borrower has requested that certain provisions provided for in the
Loan Agreement be amended as hereinafter set forth.
C. The Administrative 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. Section 1.1 of the Loan Agreement is amended
to add the following additional defined terms thereto:
"Acquisition": the acquisition by the Borrower or any one or more
of its Subsidiaries, in one or more transactions, for approximately
$660,000,000 (but not less than $500,000,000) of a significant portion of
the CenterAmerica Property Trust, L.P. portfolio.
"Acquisition Date": the date by which each of the following shall
have occurred: (i) the payment (other than a good faith deposit or down
payment) by the Borrower or any one or more of its Subsidiaries of the
purchase price for the assets which are the subject of the Acquisition,
and (ii) the transfer to the Borrower or any one or more of its
Subsidiaries of the assets which are the subject of the Acquisition.
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"Acquisition Purchase Agreement": a purchase agreement entered
into by the Borrower and any one or more of its Subsidiaries with respect
to the Acquisition.
"Amendment No. 2": that certain Amendment No. 2 to Term Loan
Agreement, dated as of December 27, 2001, among the Borrower, the Lenders
and the Administrative Agent.
"Capital Event": at any time after the Borrower and/or any one or
more of its Subsidiaries enters into an Acquisition Purchase Agreement,
(i) the issuance of any common stock of the Borrower or its Subsidiaries
or other instruments which would, in conformity with GAAP, be included
under "shareholder's equity" (or any like caption) in a Consolidated
balance sheet of the Borrower, (ii) the issuance of any preferred stock
of the Borrower, and/or (iii) the completion of asset sales in a single
transaction or series of transactions, the total net proceeds from which
(i.e. the events described in clauses (i), (ii) and (iii)) are
$200,000,000 or more.
"Excluded Subsidiary": Excel Realty Partners, L.P., E. H.
Properties, L.P. and any entity set forth on Schedule 7.11 to Amendment
No. 2.
2. Amendment to Section 7.11. Section 7.11 of the Loan Agreement is
amended to delete the first sentence of subsection (a) thereof in its entirety
and substitute in its place the following new sentence:
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 an Excluded Subsidiary) 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.
3. Amendment of Section 8.15. Section 8.15 of the Loan Agreement is
amended to delete subsection (a) thereof in its entirety and substitute in its
place the following new subsection (a):
(a) Permit Consolidated Total Indebtedness (i) at any time prior
to a Capital Event to be more than 57.5% of Total Capital at such time,
and (ii) at any time after a Capital Event to be more than 55% of Total
Capital at such time; provided that for any fiscal quarter in which
Restricted Payments made during such quarter and permitted by Section
8.11(a)(i), when added to the amount of Restricted Payments made during
the preceding three fiscal quarters, exceed 90% of Funds from Operations
for the four consecutive fiscal quarters ending prior to
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the quarter in which such Restricted Payment is made (in determining
Funds from Operations for such four fiscal quarter period, any
acquisitions, including the Acquisition, and dispositions of Property
occurring during such four fiscal quarter period shall be deemed to have
occurred at the beginning of such four fiscal quarter period), the
Borrower shall not permit Consolidated Total Indebtedness to be more than
52.5% of Total Capital at any time from and after the time such
Restricted Payment is made; or
4. Amendment of Section 8.16. Section 8.16 of the Loan Agreement is
amended to delete Section 8.16 in its entirety and substitute in its place the
following new Section 8.16:
8.16 Liabilities to Assets Ratio.
Permit, at any time, the portion of the Consolidated Total
Indebtedness consisting of Consolidated unsecured Indebtedness of the
Borrower and its Subsidiaries at such time to be more than (i) prior to a
Capital Event, 55% of Unencumbered Asset Value at such time, and (ii)
after a Capital Event, 50% of Unencumbered Asset Value at such time.
5. Effectiveness of Amendment. This Amendment shall be deemed to be
executed and delivered by the parties hereto as of the date hereof but the
amendments to the Loan Agreement set forth in Sections 1, 2, 3, and 4 of this
Amendment shall not be effective until the Acquisition Date shall have occurred,
provided that on or before the Acquisition Date the Administrative Agent shall
have received counterparts of this Amendment duly executed and delivered by the
Borrower, the Administrative Agent, and the Required Lenders, and acknowledged
by the Subsidiary Guarantors, in sufficient copies for each Lender and the
Administrative Agent to receive an original thereof.
6. 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.
7. No Other Amendments. Except to the extent amended hereby, all terms,
provisions and conditions of the Loan Agreement shall continue in full force and
effect and shall remain enforceable and binding in accordance with its terms.
8. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York.
9. 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.
10. Successors and Assigns. This Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
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11. 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 that have been
negotiated, executed and delivered on behalf of NPRT by the trustees or officers
thereof in their respective 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
thereunder. The Administrative Agent and the Lenders 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.
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
officers to execute and deliver this Amendment No. 2 to Term Loan Agreement as
of the date first above written.
NEW PLAN EXCEL REALTY TRUST, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: SR. V.P.
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FLEET NATIONAL BANK, as Administrative
Agent and a Lender
By: /s/ Xxxx Xxxx
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Name: Xxxx Xxxx
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Title: Vice President
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CITIZENS BANK OF RHODE ISLAND
By: /s/ Xxxxx X. Xxxxxxxxxxxx
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Name:
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Title:
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SUNTRUST BANK
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
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Title: Vice President
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COMPASS BANK
By: /s/ Xxxx Xxxxxxxxxxx
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Name: Xxxx Xxxxxxxxxx
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Title: SVP
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COMERICA BANK
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
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Title: Account Officer
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XXXXX FARGO BANK, NATIONAL
ASSOCIATION
By:
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Name:
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Title:
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Each of the following Subsidiary Guarantors consents and agrees to the terms of
this Amendment and the provisions of Section 6 thereof:
NEW PLAN REALTY TRUST
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Senior Vice President
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EXCEL REALTY TRUST - ST, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Senior Vice President
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SCHEDULE 7.11
TO
AMENDMENT NO. 2 TO TERM LOAN AGREEMENT
DECEMBER 27, 2001
1. CFP I L.P., a Delaware limited partnership
2. CenterAmerica Capital Partnership, L.P., a Delaware limited partnership
(name change under consideration)
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