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Exhibit 10.3
WAIVER AND AMENDMENT
TO CREDIT AGREEMENT
THIS WAIVER AND AMENDMENT TO CREDIT AGREEMENT (the "Amendment") is
made and entered into as of September 25, 1998, among NEW PLAN REALTY TRUST, a
Massachusetts business trust, ("New Plan" or the "Borrower"), THE BANK OF NEW
YORK, as agent for the Lenders (the "Agent"), and the financial institutions
listed on the signature pages hereto.
RECITALS:
A. The Borrower, the Agent and certain financial institutions entered into
that certain Credit Agreement dated as of November 21, 1997 (as amended, the
"Credit Agreement"; defined 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 entered into that certain Agreement and Plan of Merger
among the Borrower, Excel Realty Trust, Inc. ("Excel"), and ERT Merger Sub, Inc.
("Merger Sub"), dated May 14, 1998, as amended by that certain Amendment to
Agreement and Plan of Merger, dated as of August 7, 1998, among the Borrower,
Excel and the Merger Sub (collectively, the "Merger Agreement").
C. In accordance with the Merger Agreement, at the Effective Time under
and as defined in the Merger Agreement (the "Effective Time") (i) shares of
beneficial interest of New Plan will be converted into the right to receive
common shares of the stock of the Combined Company (hereinafter defined), (ii)
the Merger Sub will be merged with and into New Plan with New Plan surviving as
a wholly owned subsidiary of Excel, (iii) Excel will change its name to "New
Plan Excel Realty Trust, Inc." (such entity being, from and after the Effective
Time, the "Combined Company") and (iv) the merger contemplated by the Merger
Agreement (the "Merger") will be consummated by filing the appropriate articles
of merger and certificate of amendment and merger with the appropriate
authorities in the State of Maryland and Commonwealth of Massachusetts, all as
more particularly described in the Merger Agreement and the Proxy Statement
(hereinafter defined).
D. The Borrower and Excel have called meetings of their respective
shareholders to be held on September 25, 1998 to approve the Merger and other
matters set forth in the Joint Proxy Statement/Prospectus dated August 12, 1998
(the "Proxy Statement"). If approved, the Borrower contemplates that the
Effective Time will occur prior to October 1, 1998.
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E. The Borrower's consummating the Merger and the other transactions
contemplated by the Merger Agreement and the Proxy Statement will constitute an
Event of Default under Sections 8.2, 8.5, 8.7 and 9.1(o) of the Credit
Agreement. The Borrower has requested that as of the Effective Time the Agent
and the Lenders (i) waive the Event of Defaults occurring by reason of the
consummation of the Merger and the other transactions contemplated by the Merger
Agreement and the Proxy Statement, (ii) permit the Combined Company to be
substituted for the Borrower under the Credit Agreement and assume the
obligations of the Borrower thereunder, (iii) accept the Guaranty of New Plan
Realty Trust, as a wholly owned subsidiary of the Combined Company, in support
of the obligations of the Combined Company under the Credit Agreement and (iv)
acknowledge that the fiscal year of the Combined Company and New Plan will be a
calendar year.
F. The Agent 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. Waiver. Subject to the compliance by the applicable parties with the
provisions of Section 14 of this Amendment, the Agent and the Lenders consent,
as of the Effective Time, to the Merger and the other transactions contemplated
by the Merger Agreement and the Proxy Statement and waive, as of the Effective
Time, any Event of Default under Section 8.2, 8.5, 8.7 or Section 9.1(o) of the
Credit Agreement occurring by reason of the consummation of the Merger in
accordance with the Merger Agreement and the Proxy Statement (each a "Merger
Default" and collectively, the "Merger Defaults").
2. Amended Definitions. As of the Effective Time, Section 1.1 of the
Credit Agreement ("Definitions") shall be deemed amended by deleting therefrom
the definitions of "Maturity Date," "Revolving Credit Termination Date" and
"Total Capital" and substituting in their place the following new definitions
therefor:
"Maturity Date": (i) if the Term Loan is not elected pursuant to
Section 2.2, the earlier of the Revolving Credit Termination Date or the
date on which the Notes shall become due and payable, whether by
acceleration or otherwise, and (ii) if the Term Loan is so elected, the
earlier of November 20, 1999 or the date
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on which the Notes shall become due and payable, whether by acceleration
or otherwise.
"Revolving Credit Termination Date": January 31, 1999.
"Total Capital": shall mean on any date, the sum of (i) all long
term debt of the Borrower and its Subsidiaries on a Consolidated basis
(inclusive of medium term notes) on such date, (ii) the stockholders'
equity in the Borrower on such date, as determined in accordance with
GAAP, (iii) the value of issued and outstanding preferred stock of the
Borrower on such date, (iv) all Loans outstanding on such date, and (v)
all loans under the BankBoston Credit Agreement outstanding on such date.
3. Threshold Amount. As of the Effective Time, the definition of
"Threshold Event" in the Credit Agreement shall be deemed amended to eliminate
the number "$150,000,000" therein and substitute in its place the number $0.00
in its place. Accordingly, as of the Effective Time, the "Threshold Amount"
under and as defined in the Credit Agreement shall be $0.00.
4. New Definitions. As of the Effective Time, Section 1.1 of the Credit
Agreement ("Definitions") shall be deemed further amended by adding thereto the
following new defined terms (the same to be inserted into Section 1.1 in proper
alphabetical order):
"BankBoston Credit Agreement": That certain First Amended and
Restated Revolving Credit Agreement among Excel, BankBoston, N.A., as
Agent, and the lenders who are signatories thereto, dated as of March 31,
1998, as amended pursuant to that certain First Amendment to First Amended
and Restated Revolving Credit Agreement, among Excel, BankBoston, N.A., as
Agent, and the lenders signatory thereto, dated as of September 25, 1998,
and all amendments thereto.
"Guarantor": New Plan Realty Trust, its successors and assigns.
"Guaranty": That certain Guaranty of the Guarantor executed or
to be executed and delivered by the Guarantor under which the Guarantor
guaranties the payment when due of the obligations of the Borrower
under this Agreement and the other Loan Documents.
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5. Representations. The parties acknowledge that as of the Effective Time,
Schedules 4.1, 4.5, 4.12, 8.3 and 8.4 will be revised and replaced pursuant to
the terms of the Assumption and Substitution Agreement attached hereto as
Attachment 1, and such replacement shall effectively amend the Sections of the
Credit Agreement corresponding to such Schedules. In addition, as of the
Effective Time, the following new Section 4.21 shall be deemed added to the
Credit Agreement at the end of Article 4 of the Credit Agreement:
4.21 BankBoston Credit Agreement.
No Event of Default exists under and as defined in the
BankBoston Credit Agreement.
6. Financial Statements. As of the Effective Time, Section 4.13 of the
Credit Agreement shall be deemed amended by deleting said Section 4.13 in its
entirety and substituting the following new Section in its place:
4.13 Financial Statements.
The Borrower has heretofore delivered to the Agent and the
Lenders the selected historical consolidated financial information
of New Plan and Excel and the pro-forma operating and financial
information, balance sheets, statements of income and other
financial information with respect to New Plan, Excel and the
Borrower set forth in the Proxy Statement (the "Financial
Statements"). The Financial Statements fairly present the
Consolidated financial condition of the Borrower and its
Subsidiaries as of the date of said financial statements and were
true and correct in all material respects as of such date. Since the
date of the Financial Statements, the Borrower and each Subsidiary
has conducted its business only in the ordinary course and there has
been no Material Adverse Change.
7. Legal Existence. As of the Effective Time, Section 7.3 of the Credit
Agreement shall be deemed deleted and the following new Section 7.3 shall be
inserted in its place:
7.3 Legal Existence.
Maintain its status as a Maryland corporation in good standing
in the State of Maryland and in each other jurisdiction in which the
failure so to do could reasonably be expected to have a Material
Adverse Effect.
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8. Declaration of Trust. As of the Effective Time, all references to the
"Declaration of Trust" in the Credit Agreement shall be deemed to refer,
collectively, to the Charter and By-Laws of the Combined Company as they exist
at such time. In furtherance of the foregoing, Section 8.7 of the Credit
Agreement ("Declaration of Trust") shall be deemed deleted and the following new
Section 8.7 shall be inserted in its place:
8.7 Charter and By-Laws.
Amend or otherwise modify its Charter or By-Laws in any way
(other than in connection with the issuance or classification of
preferred stock of the Borrower) which would adversely affect the
interests of the Agent and the Lenders under any of the Loan
Documents, or permit any Subsidiary to amend its organizational
documents in a manner which could have the same result.
9. Certain Prepayments. As of the Effective Time, Section 8.9 shall be
deemed amended to add the following sentence at the end thereof:
"Notwithstanding anything to the contrary set forth in this Section 8.9, prior
to the occurrence of an Event of Default, the Borrower may prepay Indebtedness
under the BankBoston Credit Agreement in accordance with Section 3 thereof,
provided that no Event of Default would result from any such prepayment."
10. Additional Capital Stock of Subsidiaries. As of the Effective Time,
Section 8.13 of the Credit Agreement shall be deemed amended to delete said
Section 8.13 in its entirety and substitute in its place the following new
Section 8.13:
8.13 Issuance of Additional Capital Stock by Subsidiaries.
Permit any Subsidiary to issue any additional Stock or other
equity interest of such Subsidiary, other than the issuance of
partnership units in down-REIT partnership Subsidiaries of the
Borrower, provided that such partnership units are issued (i) in the
normal course of the Borrower's business and (ii) in consideration
of the contribution to the down-REIT partnership of assets
qualifying as "real estate assets" under Section 856(c) of the Code.
11. Minimum Tangible Net Worth. As of the Effective Time, Section 8.15 of
the Credit Agreement shall be deemed amended to delete the number
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"$550,000,000" therein and substitute in its place the following new number:
"$1,200,000,000."
12. Maximum Total Indebtedness. As of the Effective Time, Section 8.16 of
the Credit Agreement shall be deemed deleted and the following new Section 8.16
shall be substituted in its place:
8.16 Maximum Total Indebtedness.
Permit either (i) the total indebtedness of the Borrower and
its Subsidiaries, determined on a Consolidated basis, as determined
in accordance with GAAP, at any time to be more than 50% of Total
Capital at such time, or (ii) the indebtedness of the Borrower and
its Subsidiaries, determined on a Consolidated basis, secured by
mortgages on Real Property owned by the Borrower and its
Subsidiaries at any time to exceed 40% of Total Capital at such
time.
13. Defaults. As of the Effective Time Section 9.1 of the Credit Agreement
shall be deemed amended in the following respects: (i) subsection (k) thereof
shall be deemed amended to delete therefrom the number "$500,000" and substitute
in its place the number "$1,000,000"; and (ii) the period at the end of
subsection (o) shall be deemed deleted, the phrase "; or" shall be deemed
inserted in its place, and the following new subsections (p) and (q) shall be
deemed added at the end of said Section 9.1:
(p) The Guarantor shall fail to comply with any covenant made
by it in the Guaranty or if at any time any representation or warranty
made by the Guarantor in the Guaranty or in any other document, statement
or writing made to the Agent or the Lenders shall be incorrect or
misleading in any material respect when made, or (ii) if a default by the
Guarantor shall occur under the Guaranty after the expiration of any
applicable notice and grace period; or (iii) if the Guarantor shall revoke
or attempt to revoke, contest, commence any action or raise any defense
(other than the defense of payment) against its obligations under the
Guaranty; or
(q) There shall occur an Event of Default under and as defined
in the BankBoston Credit Agreement.
14. Notice Provision. Section 11.2 of the Credit Agreement is hereby
amended to change the addresses for notices to the Agent as follows:
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if to the Agent:
The Bank of New York
One Wall Street
Agency Function Administration
18th floor
New York, New York
Attention: William Fahey
Vice President
Agency Function Administrator
Telephone: (212) 635-4690
Telecopy: (212) 635-6365 or 6366 or 6367
with a copy to:
The Bank of New York
One Wall Street - 21st Floor
New York, New York 10286
Attention: Andrea Stuart
Vice President
Telephone: (212) 635-4672
Telecopier: (212) 635-7904
15. Fiscal Year. The Agent and the Lenders acknowledge that as of the
Effective Time, the fiscal year of the Combined Company and New Plan shall be a
calendar year.
16. Conditions to the Effectiveness of this Amendment. The effectiveness
of this Amendment, including without limitation, the waivers set forth in
Section 1 hereof, are subject to the satisfaction of each of the following
conditions on or before October 31, 1998 (the "Compliance Date"):
(a) The Effective Time shall have occurred on or before the Compliance
Date;
(b) Prior to the Effective Time, the Agent shall have received this
Amendment duly executed and delivered by the Borrower, the Agent and
the Lenders, in sufficient copies for each Lender and the Agent to
receive an original thereof;
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(c) Prior to the Effective Time, the Agent shall have received such
financial information with respect to Excel, New Plan and the
Combined Company as the Agent or any of the Lenders shall have
reasonably requested;
(d) As of the Effective Time, the Agent shall have received:
(i) a copy of the Articles of Merger and Certificate of Amendment
and Merger (as defined in the Merger Agreement) duly executed
by the required parties, certified by the Combined Company to
be true and correct and in the form submitted for filing with
the State Department of Assessments and Taxation of Maryland
and the Secretary of State for the Commonwealth of
Massachusetts, respectively;
(ii) a certificate, dated the date of the Effective Time, of the
Secretary or Assistant Secretary of the Combined Company (i)
attaching a true and complete copy of the authorizing
resolutions and of all documents evidencing other necessary
action (in form and substance reasonably satisfactory to the
Agent) taken by it to authorize the Assumption Agreement
(hereinafter defined) and the incurrence of the obligations
under the Credit Agreement and the other Loan Documents and
the transactions contemplated thereby, (ii) attaching a true
and complete copy of its Charter and By-Laws, and (iii)
setting forth the incumbency of its officer or officers who
may sign the Assumption Agreement, including therein a
signature specimen of such officer or officers.
(iii) for each Lender, a new Note in the form of Exhibit G to the
Credit Agreement made payable to the order of each Lender and
in the amount of each such Lender's Commitment Amount, duly
executed by the Combined Company and dated as of the Effective
Time;
(iv) the Assumption and Substitution Agreement in the form of
Attachment 1 hereto (the "Assumption Agreement") duly executed
by the Combined Company, New Plan, the Agent and the Lenders
and dated as of the Effective Time, in sufficient copies for
each Lender and the Agent to receive an original thereof; and
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(v) the Guaranty in the form of Attachment 2 hereto duly executed
by New Plan and dated as of the Effective Time, in sufficient
copies for each Lender and the Agent to receive an original
thereof.
1. Opinion. Notwithstanding anything in the Credit Agreement to the
contrary, the Lenders shall have no obligation to make any loan after the
Effective Time until the Agent shall have received an opinion of counsel to the
Combined Company in form satisfactory to the Agent covering such matters as the
Agent may require, including opinions as to the consummation of the Merger in
accordance with the Merger Agreement and the Proxy Statement and the
authorization, execution and delivery and enforceability of the Assumption and
Substitution Agreement.
2. 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.
3. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York.
4. 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.
5. Successors and Assigns. This Amendment shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns.
6. Trust Limitation. This Amendment and all documents, agreements,
understandings and arrangements relating to this transaction have been
negotiated, executed and delivered on behalf of the Borrower 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 the Borrower, and
no trustee, officer, employee, agent or shareholder of the Borrower shall be
bound or held to any personal liability or responsibility in connection with the
agreements, obligations and undertakings of the Borrower hereunder, and any
person or entity dealing with the Borrower 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 Agent and
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each Lender hereby acknowledge and agree that each agreement and other document
executed by the Borrower 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.
7. New Plan Acknowledgment and Agreement. New Plan acknowledges that the
Lenders are entering into this Amendment on the understanding that the terms
hereof will be acceptable to the Combined Company and that the Combined Company
will execute the Assumption Agreement as of the Effective Time. New Plan
represents that the terms of this Amendment and the Attachments hereto are
acceptable to the board of directors of New Plan, and New Plan agrees to cause
the Combined Company to execute the Assumption Agreement on the Effective Time
and deliver the executed counterpart thereof to the Agent.
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Waiver and Amendment to Credit
Agreement as of the date first above written.
NEW PLAN REALTY TRUST
By: /s/ DEAN BERNSTEIN
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Dean Bernstein
Vice President
THE BANK OF NEW YORK,
as the Agent
and a Lender
By: /s/ ANDREA STUART
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Andrea Stuart
Vice President
FLEET NATIONAL BANK
as a Lender
By: /s/ THOMAS T. HANOLD
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Name: Thomas T. Hanold
Title: Vice President
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BANK HAPOALIM, B.M.
as a Lender
By: /s/ SHAUN BREIDBART
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Name: Shaun Breidbart
Title: Vice President
By: /s/ CONRAD WAGNER
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Name: Conrad Wagner
Title: First Vice President