Exhibit 10.5
FIRST AMENDMENT TO
FIRST AMENDED AND RESTATED REVOLVING CREDIT
AGREEMENT
THIS FIRST AMENDMENT TO FIRST
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
(this “Amendment”) is
made as of the 19 th day of July, 2005, by and among
NEW PLAN EXCEL REALTY TRUST, INC. , a Maryland corporation
(the “Borrower”), the entities executing this Amendment
as guarantors (collectively, the “Guarantors”), each
lender a party hereto (each a “Lender” and,
collectively, the “Lenders”), and BANK OF AMERICA,
N.A. , as administrative agent (in such capacity, the
“Administrative Agent”).
RECITALS.
WHEREAS , Borrower, Administrative Agent and certain of
the Lenders entered into that certain First Amended and Restated
Revolving Credit Agreement dated as of June 29, 2004 (the
“Credit Agreement”); and
WHEREAS, certain of the Guarantors executed that certain
First Amended and Restated Guaranty dated as of June 29, 2004,
in favor of Administrative Agent and Lenders and that certain
Guaranty, dated as of June 15, 2005, in favor of
Administrative Agent and Lenders (collectively, the
“Guaranty”); and
WHEREAS, Borrower has requested that Administrative Agent
and the Lenders make certain modifications to the Credit Agreement;
and
WHEREAS , the Administrative Agent and the Lenders have
agreed to such modifications to the Credit Agreement subject to the
execution and delivery by Borrower and the Guarantors of this
Amendment;
NOW, THEREFORE
, for and in consideration of the
sum of TEN and NO/100 DOLLARS ($10.00), and other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto do hereby covenant and agree as
follows:
1.
Definitions
. All terms used herein which
are not otherwise defined herein shall have the meanings set forth
in the Credit Agreement.
2.
Modification of the Credit
Agreement .
Borrower, Guarantors, the Lenders, and Administrative Agent do
hereby modify and amend the Credit Agreement as follows:
(a)
By adding the following new
definitions to §1.1 of the Credit Agreement:
““ Joint Venture
Closing Date” : the closing date of the Joint
Venture Transaction.”
““ Joint Venture
Transaction ”: the proposed transaction pursuant to
which the Borrower shall transfer sixty-nine (69) Real Properties
(subject to reduction in certain limited circumstances) owned by
Borrower and its Subsidiaries to Galileo America LLC, a Delaware
limited liability
company (“Galileo”) in
exchange for no less than $930,000,000.00 in the form of cash and
equity interest in Galileo.”
““ Special
Dividend ”: the special dividend expected to be
approximately $3.00 per share of common stock (but in no event more
than $4.00 per share of common stock) that is proposed to be paid
solely in connection with, and upon consummation of, the Joint
Venture Transaction.”
(b)
By modifying the definitions of
“Operating Property Value” and “Unencumbered
Asset Value” set forth in §1.1 of the Credit Agreement
by deleting from clause (ii) set forth therein the figure
“9.0%” and by inserting in lieu thereof the figure
“8.50%”.
(c)
By deleting clause (vi) of
§8.2(b) of the Credit Agreement in its entirety and
inserting in lieu thereof the following new clause (vi) of
§8.2(b):
“(vi)
the Borrower or any Subsidiary of
the Borrower may sell, transfer, contribute, master lease or
otherwise dispose of Property in an arm’s length transaction
(or, if the transaction involves an Affiliate of the Borrower, if
the transaction complies with Section 8.8), including, without
limitation, a disposition of Property pursuant to a merger or
consolidation (so long as such merger or consolidation is not
prohibited by Section 8.2(a)), provided, however, that for any
fiscal year of the Borrower, any sale, transfer, master lease,
contribution or other disposition of Property in reliance on this
clause (vi) which when combined with all other sales,
transfers, master leases, contributions or dispositions of Property
in reliance on this clause (vi) made in such fiscal year shall
not exceed (A) with respect to fiscal year 2005, 30% of the
total book value of all Property of the Borrower and its
Subsidiaries determined as of December 31, 2004, and
(B) with respect to each fiscal year thereafter, 25% of the
total book value of all Property of the Borrower and its
Subsidiaries determined as of the last day of the preceding fiscal
year.”
(d)
By adding the following new
§8.11(vii) to the Credit Agreement:
“(vii)
so long as no Event of Default shall
have occurred and be continuing, the Borrower may distribute the
Special Dividend, provided that such Special Dividend is
distributed prior to October 31, 2005, unless otherwise
approved in writing by Administrative Agent.”
(e)
By deleting §8.14 of the Credit
Agreement in its entirety and inserting in lieu thereof the
following new §8.14:
“8.14
Minimum Tangible Net
Worth . Permit the
Tangible Net Worth of the Borrower and its Subsidiaries on a
Consolidated basis in accordance with GAAP at any time to be less
than the sum of (x) $1,225,000,000,000, plus (y) 80% of the
aggregate net proceeds received
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by the Borrower from and after the
Joint Venture Closing Date in connection with the issuance of any
capital stock of the Borrower.”
(f)
By deleting §8.16 of the Credit
Agreement in its entirety and inserting in lieu thereof the
following new §8.16:
“8.16
Indebtedness to Unencumbered
Assets Ratio .
Permit at any time the portion of the Consolidated Total
Indebtedness (which shall exclude Indebtedness of FIN 46 Entities
and other Joint Ventures that are not Subsidiaries) consisting of
Consolidated unsecured Indebtedness of the Borrower and its
Subsidiaries to be more than 57.5% of Unencumbered Asset Value at
such time.”
(g)
By deleting Paragraph 3 of
Exhibit ”G” to the Credit Agreement in its
entirety and inserting in lieu thereof the following new Paragraph
3 of Exhibit ”G”:
“3.
Minimum Tangible Net
Worth . The
Tangible Net Worth of the Borrower and its Subsidiaries on a
Consolidated basis is
$ .
Eighty percent (80%) of the aggregate net proceeds received by the
Borrower from and after the Joint Venture Date in connection with
the issuance of capital stock of the Borrower is
$ .
Accordingly, Tangible Net Worth exceeds Minimum Tangible Net Worth,
which is
$ .
[Minimum Tangible Net Worth is the sum of $1,225,000,000.00 plus
80% of such proceeds received from and after the Joint Venture
Date.] ”
(h)
By deleting Paragraph 5 of
Exhibit ”G” to the Credit Agreement in their
entirety and inserting in lieu thereof the following new Paragraph
5:
“5.
Indebtedness to Unencumbered
Assets Ratio . The
portion of Consolidated Total Indebtedness (which shall exclude
Indebtedness of FIN 46 Entities and other Joint Ventures that are
not Subsidiaries) consisting of unsecured Indebtedness of the
Borrower and its Subsidiaries is
$
and the Unencumbered Asset Value is
$ .
Accordingly, such portion of Consolidated Total Indebtedness is
%
of Unencumbered Asset Value. [Such portion of Consolidated
Total Indebtedness must not be greater than 57.5% of Unencumbered
Asset Value.]
3.
References to Loan
Documents . All
references in the Loan Documents to the Credit Agreement shall be
deemed a reference to the Credit Agreement as modified and amended
herein.
4.
Consent of Guarantors
. By execution of this
Amendment, Guarantors hereby expressly consent to the modifications
and amendments relating to the Credit Agreement as set forth
herein, and Guarantors hereby acknowledge, represent and agree that
the Guaranty and the other Loan Documents to which each is a party
remain in full force and effect and constitute the valid and
legally binding obligation of Guarantors enforceable against
Guarantors in accordance
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with their terms except as enforceability is
limited by bankruptcy, insolvency, reorganization, moratorium or
other laws relating to or affecting generally the enforcement of
creditors’ rights and except to the extent that availability
of the remedy of specific performance or injunctive relief is
subject to the discretion of the court before which any proceeding
therefor may be brought, that the Guaranty and the other Loan
Documents to which each is a party extend to and apply to the
Credit Agreement as modified and amended, and that the execution
and delivery of
