Exhibit 10.2
FACILITY II 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 December 27, 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"),
BANK ONE, NA and FLEET NATIONAL BANK, f/k/a BankBoston, N.A. (each a
"Co-Documentation Agent" and, collectively, the "Co-Documentation Agents"), and
BANK OF AMERICA, N.A., as Managing Agent (in such capacity, the "Managing
Agent").
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 Sections 7.11, 8.15,
8.16 and other provisions of the Credit Agreement as hereinafter set forth.
C. The Administrative Agent, the Co-Documentation Agents, the Managing
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 Credit 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 that $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.
"Amendment No. 4": that certain Amendment No. 4 to Credit
Agreement, dated as of December 27, 2001, among the Borrower, the
Lenders, the Administrative Agent, the Co-Documentation Agents and the
Managing Agent.
"Acquisition Purchase Agreement": a purchase agreement entered
into by the Borrower and any one or more of its Subsidiaries with respect
to the Acquisition.
"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. 4.
2. Amendment to Section 7.11. Section 7.11 of the Credit 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 Credit Agreement is
amended to delete subsection (a) thereof in its entirety and substitute in its
place the following new subsection (a):
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(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 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 Credit 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 Credit 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, each Co-Documentation Agent, the Managing
Agent and the Required Lenders, and acknowledged by the Subsidiary Guarantors,
in sufficient copies for each Lender, the Administrative Agent, each
Co-Documentation Agent and the Managing Agent to receive an original thereof.
6. 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.
7. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York.
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8. 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.
9. Successors and Assigns. This Amendment shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns.
10. 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.
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 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
thereunder. The Administrative Agent, the Co-Documentation Agents, the Managing
Agent 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/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Senior Vice-President
THE BANK OF NEW YORK,
as Administrative Agent and a Lender
By: /s/ Xxxxxxxxx Xxxxxxx
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Xxxxxxxxx Xxxxxxx
Vice President
BANK ONE, NA
as Co-Documentation Agent and a Lender
By: /s/ Xxxxx Krcharik
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Name: Xxxxx Krcharik
Title: Associate Director
FLEET NATIONAL BANK
as Co-Documentation Agent and a Lender
By: /s/ Xxxx Xxxx
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Name: Xxxx Xxxx
Title: Vice President
BANK OF AMERICA, N. A.
as Managing Agent and a Lender
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Managing Director
BANCO BILBAO VIZCAYA
ARGENTERIA
By:
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Name:
Title:
XXXXX XXX COMMERCIAL
BANK, LTD., NEW YORK BRANCH
By:
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Name:
Title:
ERSTE BANK
By:
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Name:
Title:
By:
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Name:
Title:
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XXXXXX DISCOUNT BANK OF
NEW YORK
By:
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Name:
Title:
By:
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Name:
Title:
PNC BANK, N. A.
By: /s/ Xxxxxx Xxxxxxxxxxx
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Name: Xxxxxx Xxxxxxxxxxx
Title: Vice President
KEY BANK
By:
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Name:
Title:
Each of the following Subsidiary
Guarantors consents and agrees to
the terms of this Amendment and the
provisions of Section 10 thereof:
NEW PLAN REALTY TRUST
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: SR. V.P.
EXCEL REALTY TRUST-ST, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: SR. V.P.
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SCHEDULE 7.11
to
Amendment No. 4 to Credit 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)
