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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 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).
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".
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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.
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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.
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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 Term Loan 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
FLEET NATIONAL BANK, as Administrative
Agent and a Lender
By: /s/ XXXXXX X. XXXXXXXXXXXX
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Xxxxxx X. Xxxxxxxxxxxx,
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 TRUST -- ST, INC.
By: /s/ XXXX XXXXXXXXX
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Name:
Title:
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