Amendment No. 1 to Term Loan Agreement among New Plan Excel Realty Trust, Inc., Fleet National Bank, and Lenders

Summary

This amendment updates the Term Loan Agreement dated March 7, 2000, between New Plan Excel Realty Trust, Inc. (the borrower), Fleet National Bank (as administrative agent and lender), and other lenders. The amendment revises the rules regarding the sale, transfer, or lease of the borrower's property, setting new limits and conditions. Subsidiary guarantors confirm their ongoing obligations. The amendment is effective upon execution by all required parties and does not change other terms of the original agreement.

EX-10.5 4 ex10-5.txt AMENDMENT NO. 1 TO TERM LOAN AGREEMENT 1 EXHIBIT 10.5 AMENDMENT NO. 1 TO TERM LOAN AGREEMENT THIS AMENDMENT NO. 1 TO TERM LOAN 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 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, 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 Section 8.2 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 8.2. Section 8.2 of the Loan 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 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, 2 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, and the Required Lenders, in sufficient copies for each Lender and the Administrative Agent to receive an original thereof. 4. 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. 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 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. IN WITNESS WHEREOF, the parties hereto have caused their duly authorized officers to execute and deliver this Amendment No. 1 to Term Loan Agreement as of the date first above written. 2 3 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 2 thereof: NEW PLAN REALTY TRUST By: /s/ Dean Bernstein -------------------------------- Name: Dean Bernstein Title: SVP EXCEL REALTY TRUST - ST, INC. By: /s/ Dean Bernstein -------------------------------- Name: Dean Bernstein Title: SVP 3