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EXHIBIT 10.21
FACILITY II
AMENDMENT NO. 2
TO CREDIT AGREEMENT
THIS AMENDMENT NO. 2 TO CREDIT AGREEMENT (the "Amendment") is made and
entered into as of November 3, 2000, 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 the same was amended by that certain Amendment No. 1 to
the Credit Agreement, dated June 27, 2000, 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 amendments to certain provisions of
the Credit Agreement as more particularly hereinafter set forth.
C. The Administrative Agent, the Co-Documentation Agents and the
Lenders are agreeable to such requests, 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. Amendments to Section 8.11 (Restricted Payments). Section 8.11
of the Credit Agreement is hereby amended in the following respects:
(a) The following non-recurring charges shall not be
included in the calculation of "Funds from Operations": (i) payments made to Xx.
Xxxxxx Xxxxxxx in February 2000 in connection with his retirement from his
position as President and Chief Executive Officer and (ii) payments made to Xx.
Xxxxx Xxxxxxxxxx in May 2000 in connection with his resignation from his
position as Chief Operating Officer. Such exclusion of such non-recurring
charges from the definition of "Funds from Operations" shall apply only with
respect to the covenant calculation in Section 8.11(a)(i).
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(b) Section 8.11(a)(i) of the Credit Agreement is hereby
amended by deleting clause (A) thereof in its entirety and substituting in its
place the following new Clause (A): "(A) ninety-five percent (95%) of its Funds
from Operations for the four fiscal quarters ending prior to the quarter in
which such dividend is paid or".
2. Amendment of Section 8.15 (Maximum Total Indebtedness). Section
8.15 of the Credit Agreement is hereby amended by deleting Section 8.15 in its
entirety and substituting the following new Section 8.15 in its place:
8.15 Maximum Total Indebtedness.
(a) Permit at any time Consolidated Total
Indebtedness 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, 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
(b) Permit at any time the Consolidated Total
Indebtedness secured by mortgages on Real Property owned by the Borrower
and its Subsidiaries at such time to exceed 40% of Total Capital at such
time.
3. 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.
4. Effectiveness of Amendment. The effectiveness of this Amendment
is subject to the receipt by the Administrative Agent, on or before November 3,
2000, of this Amendment duly executed and delivered by the Borrower, the
Administrative Agent, each Co-Documentation Agent, the Managing Agent and the
Required Lenders, in sufficient copies for each Lender, the Administrative
Agent, each Co-Documentation Agent and the Managing Agent to receive an original
thereof.
5. 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.
6. 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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7. 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.
8. Successors and Assigns. This Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
9. Trust Limitation for New Plan Realty Trust. This Amendment and
all documents, agreements, understandings and arrangements relating to this
transaction that have been negotiated, executed and delivered on behalf of New
Plan Realty Trust ("NPRT") have been so negotiated, executed and delivered 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 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 have caused their duly authorized
officers to execute and deliver this Amendment No.2 to Credit Agreement as of
the date first above written.
NEW PLAN EXCEL REALTY
TRUST, INC.
By: /s/ XXXX XXXXXXXXX
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Xxxx Xxxxxxxxx
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/ XXXXXXXX XXXXX
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Name: Xxxxxxxx Xxxxx
Title: Senior Vice President
FLEET NATIONAL BANK
F/K/A BANKBOSTON, N.A.
as Co-Documentation Agent
and a Lender
By: /s/ XXXXXX X. XXXXXXXXXXXX
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Name: Xxxxxx X. Xxxxxxxxxxxx
Title: Vice President
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BANK OF AMERICA, N. A.
as Managing Agent
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
BANCO BILBAO VIZCAYA
ARGENTARIA, S.A.
(f/k/a Argentaria, Caja Postal Y
Banco Hipotecario S.A.
By: /s/ XXXXXXX XXXXX /s/ Xxxxx Xxxxxx
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Name: Xxxxxxx Xxxxx Xxxxx Xxxxxx
Title: Vice President Vice President
Corporate Banking Trade Finance
XXXXX XXX COMMERCIAL
BANK, LTD., NEW YORK BRANCH
By: /s/ WAN-TU YEH
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Name: Wan-Tu Yeh
Title: SVP & General Manager
ERSTE BANK
By: /s/ XXXX XXXXXXX /s/ XXXX X. XXXXXXX
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Name: Xxxx Xxxxxxx Xxxx X. Xxxxxxx
Title: Vice President First Vice President
ISRAEL DISCOUNT BANK OF
NEW YORK
By: /s/ XXXX XXXXX /s/ XXXX X. XXXXXX
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Name: Xxxx Xxxxx Xxxx X. Xxxxxx
Title: First Vice President Vice President
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PNC BANK, N. A.
By: /s/ XXXXXX XXXXXXXXXXX
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Name: Xxxxxx Xxxxxxxxxxx
Title: Vice President
KEY BANK
By: /s/ XXXXXXX X. XXXXXXXX, XX.
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Name: Xxxxxxx X. XxXxxxxx, Xx.
Title: Vice President
Each of the following Subsidiary
Guarantors consents and agrees to
the terms of this Amendment and the
provisions of Section 3 thereof:
NEW PLAN REALTY TRUST
By: /s/ XXXX XXXXXXXXX
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Name:
Title:
EXCEL REALTY - ST, INC.
By: /s/ XXXX XXXXXXXXX
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Name:
Title:
