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EXHIBIT 10.3
FACILITY I TO AMENDMENT NO. 1
AMENDMENT NO. 1
TO CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO CREDIT AGREEMENT (the "Amendment") is made and
entered into as of June 27, 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"), and BANK
ONE, NA and 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 that Section 8.2 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. 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, 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, master lease or otherwise
dispose of its assets to the Borrower or to any other Subsidiary, (ii) the
Borrower may sell, transfer, master lease or otherwise dispose of its
assets to any Subsidiary Guarantor, (iii) 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 (iv) the Borrower
or any Subsidiary
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of the Borrower may sell 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) for the fair
market value thereof, as reasonably determined by the Borrower, provided
that such sale 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 or disposition of Property in reliance on this
clause (iv) which when combined with all other such sales, transfers,
master leases or dispositions 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.
2. 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.
3. Effectiveness of Amendment. The effectiveness of this Amendment is subject
to the receipt by the Administrative Agent, on or before June 27, 2000, of this
Amendment duly executed and delivered by the Borrower, 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.
4. 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.
5. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York.
6. 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.
7. Successors and Assigns. This Amendment shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
8. Trust Limitation for New Plan Realty Trust. This Amendment and all
documents, agreements, understandings and arrangements relating to this
transaction have been negotiated, executed and delivered on behalf of New Plan
Realty Trust ("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
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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.1 to Credit Agreement as of
the date first above written.
NEW PLAN EXCEL REALTY TRUST, INC.
By: /s/ Dean Bernstein
-------------------------------------
Dean Bernstein
Senior Vice President
THE BANK OF NEW YORK,
as Administrative Agent and a Lender
By: /s/ Frederick Laudisi
-------------------------------------
Frederick Laudisi
Vice President
BANK ONE, NA
as Co-Documentation Agent
and a Lender
By: /s/ Patricia Leung
-------------------------------------
Name: Patricia Leung
Title: Senior Vice President
FLEET NATIONAL BANK
F/K/A BANKBOSTON, N.A.
as Co-Documentation Agent
and a Lender
By: /s/ Daniel P. Stegemoeller
-------------------------------------
Name: Daniel P. Stegemoeller
Title: Vice President
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ARGENTARIA, CAJA POSTAL Y
BANCO HIPOTECARIO S.A.
By:
-------------------------------------
Name:
Title:
BANK OF AMERICA, N. A.
By: /s/ Thomas E. Schubert
-------------------------------------
Name:
Title:
CHANG HWA COMMERCIAL
BANK, LTD., NEW YORK BRANCH
By: /s/ Wan-Tu Yeh
-------------------------------------
Name: Wan-Tu Yeh
Title: VP & General Manager
ERSTE BANK
By: /s/ Paul Judicke
-------------------------------------
Name: Paul Judicke
Title: Vice President
By: /s/ John Runion
-------------------------------------
Name: John Runion
Title: First Vice President
ISRAEL DISCOUNT BANK OF NEW YORK
By: /s/ Marc G. Cooper
-------------------------------------
Name: Marc G. Cooper
Title: Vice President
By: /s/ Chet Davis
-------------------------------------
Name: Chet Davis
Title: First Vice President
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PNC BANK, N. A.
By:
-------------------------------------
Name:
Title:
KEY BANK
By: /s/ Kenneth A. McIntyre, Jr.
-------------------------------------
Name: Kenneth A. McIntyre, Jr.
Title: Vice President
Each of the following Subsidiary
Guarantors consents and agrees to
the terms of this Amendment and the
provisions of Section 2 thereof:
NEW PLAN REALTY TRUST
By: /s/ Dean Bernstein
----------------------------------
Name:
Title:
EXCEL REALTY - ST, INC.
By: /s/ Dean Bernstein
----------------------------------
Name:
Title:
