Amendment No. 2 to Term Loan Agreement among New Plan Excel Realty Trust, Inc., Fleet National Bank, and Lenders

Summary

This amendment updates the existing Term Loan Agreement between New Plan Excel Realty Trust, Inc., Fleet National Bank (as administrative agent), and various lenders. It modifies how certain non-recurring payments are treated in financial calculations and adjusts limits on the company's total indebtedness. The amendment also reaffirms the obligations of subsidiary guarantors and specifies that it becomes effective once all parties have signed and related amendments are in place. All other terms of the original agreement remain unchanged.

EX-10.50 7 w46497ex10-50.txt AMENDMENT NO. 2 TO TERM LOAN AGREEMENT 1 EXHIBIT 10.50 AMENDMENT NO. 2 TO TERM LOAN AGREEMENT THIS AMENDMENT NO. 2 TO TERM LOAN 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 Loan Agreement (each a "Lender" and, collectively, the "Lenders"), and FLEET NATIONAL BANK, as administrative agent (in such capacity, the "Administrative Agent"). RECITALS: 1. The Borrower, the Lenders and the Administrative Agent entered into that certain Term Loan Agreement dated as of March 7, 2000, as amended by Amendment No. 1 to Term Loan Agreement dated as of June 27, 2000 (as amended, the "Loan Agreement"; capitalized terms used in this Amendment which are not otherwise defined herein shall have the meaning ascribed to such terms in the Loan Agreement). 2. The Borrower has requested that Sections 8.11 and 8.15 of the Loan Agreement be amended as hereinafter set forth. 3. The Administrative 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 8.11 (Restricted Payments). Section 8.11 of the Loan Agreement is hereby amended in the following respects: 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). Section 8.11(a)(i) of the Loan 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". 1 2 2. Amendment of Section 8.15 (Maximum Total Indebtedness). Section 8.15 of the Loan 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. 8.15.1 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 8.15.2 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 (i) 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, and the Required Lenders, in sufficient copies for each Lender and the Administrative Agent to receive an original thereof, and (ii) the effectiveness of corresponding amendments to the Existing Credit Agreements. 5. No Other Amendments. Except to the extent amended hereby, all terms, provisions and conditions of the Loan 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. 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. 2 3 9. 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 respective 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 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. 3 4 IN WITNESS WHEREOF, the parties hereto have caused their duly authorized officers to execute and deliver this Amendment No. 2 to Term Loan Agreement as of the date first above written. NEW PLAN EXCEL REALTY TRUST, INC. By: /s/ DEAN BERNSTEIN ------------------------------------ Dean Bernstein Senior Vice President FLEET NATIONAL BANK, as Administrative Agent and a Lender By: /s/ DANIEL P. STEGEMOELLER ------------------------------------ Daniel P. Stegemoeller, 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/ DEAN BERNSTEIN --------------------------------- Name: Title: EXCEL REALTY TRUST -- ST, INC. By: /s/ DEAN BERNSTEIN --------------------------------- Name: Title: 4