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EXHIBIT 10.4
FACILITY II AMENDMENT XX. 0
XXXXXXXXX XX. 0
TO CREDIT AGREEMENT
THIS AMENDMENT NO. 3 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 O 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 2.13(a), 8.9,
9.1(h), 9.1 (i) and 9.1(o) of the Credit Agreement are hereby amended to
delete the phrase "Subsidiary
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Guarantor" in each instance where it appears therein, and substitute in its
place the phrase, "Subsidiary Guarantor and/or Other Guarantor".
6. New Exhibit O. A new Exhibit O 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. 3 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: /s/ 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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