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EXHIBIT 10.17
FACILITY I
AMENDMENT NO. 3
TO CREDIT AGREEMENT
THIS AMENDMENT NO. 3 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, and that certain Amendment No. 2,
dated October 16, 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. Amendment of Revolving Credit Termination Date. The definition
of "Revolving Credit Termination Date" in the Credit Agreement is hereby amended
by deleting such definition in its entirety and substituting in its place the
following new definition:
"Revolving Credit Termination Date": November 2, 2001.
2. Amendment of Maturity Date. The definition of "Maturity Date" in
the Credit Agreement is hereby amended to delete clause (iii) thereof in its
entirety and substitute in its place the following new clause (iii):
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(iii) with respect to any Term Loans, the earlier of November
17, 2002 or the date on which the Notes shall become due and
payable, whether by acceleration or otherwise.
3. Amendments of 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 Mr. Arnold Laubich in February 2000 in connection with his
retirement from his position as President and Chief Executive Officer
and (ii) payments made to Mr. James Steuterman 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).
(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".
4. 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.
5. 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
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with the terms thereof and continues to be the binding obligation of each
Subsidiary Guarantor.
6. Effectiveness of Amendment. Except as otherwise provided in
Section 1 of this 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 Lenders, in sufficient
copies for each Lender, the Administrative Agent, each Co-Documentation Agent
and the Managing Agent to receive an original thereof.
7. 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.
8. Governing Law. This Amendment shall be governed by and construed
in accordance with the laws of the State of New York.
9. 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.
10. Successors and Assigns. This Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
11. 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.
12. Fee. Simultaneously with the Borrower's request that the Lenders
execute and deliver this Amendment, the Borrower is requesting that the Lenders
also execute and deliver that certain Amendment No. 2 to Credit Agreement
("Facility II Amendment
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No. 2") in respect of the Other Credit Agreement. In the event that (i) each of
the Lenders executes and delivers this Amendment and (ii) each of the Required
Lenders (as such term is defined in the Other Credit Agreement) executes and
delivers the Facility II Amendment, the Borrower shall pay to the Administrative
Agent, for the benefit of each Lender that executes and delivers this Amendment
and the Facility II Amendment, a non-refundable fee equal to the product of
0.05% (i.e. 5.0 basis points) multiplied by the Commitment Amount of such Lender
under the Credit Agreement. Such fee shall be payable upon the effectiveness of
this Amendment as provided in paragraph 6 hereof.
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IN WITNESS WHEREOF, the parties hereto 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/ DEAN BERNSTEIN
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Dean Bernstein
Senior Vice President
THE BANK OF NEW YORK,
as Administrative Agent and a Lender
By: /s/ FREDERICK LAUDISI
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Frederick Laudisi
Vice President
BANK ONE, NA
as Co-Documentation Agent
and a Lender
By: /s/ PATRICIA LEUNG
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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
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Name: Daniel P. Stegemoeller
Title: Vice President
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BANK OF AMERICA, N. A.
as Managing Agent
and a Lender
By: /s/ TERENCE J. HATTON
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Name: Terence J. Hatton
Title: Managing Director
BANCO BILBAO VIZCAYA
ARGENTARIA, S.A.
(f/k/a Argentaria, Caja Postal Y
Banco Hipotecario S.A.
By: /s/ ALBERTO CONDE /s/ Erich Michel
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Name: Alberto Conde Erich Michel
Title: Vice President Vice President
Corporate Banking Trade Finance
CHANG HWA 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/ PAUL JUDICKE /s/ JOHN S. RUNNION
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Name: Paul Judicke John S. Runnion
Title: Vice President First Vice President
ISRAEL DISCOUNT BANK OF
NEW YORK
By: /s/ CHET DAVIS /s/ MARC G. COOPER
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Name: Chet Davis Marc G. Cooper
Title: First Vice President Vice President
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PNC BANK, N. A.
By: /s/ THOMAS NASTAROWICZ
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Name: Thomas Nastarowicz
Title: Vice President
KEY BANK
By: /s/ KENNETH A. MCINTYRE, JR.
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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 5 thereof:
NEW PLAN REALTY TRUST
By: /s/ DEAN BERNSTEIN
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Name:
Title:
EXCEL REALTY - ST, INC.
By: /s/ DEAN BERNSTEIN
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Name:
Title: