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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,
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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.
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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 2 thereof:
NEW PLAN REALTY TRUST
By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
Title: SVP
EXCEL REALTY TRUST - ST, INC.
By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
Title: SVP
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