Exhibit 10.6


 


FIRST AMENDMENT TO

FIRST AMENDED AND RESTATED SECURED TERM LOAN AGREEMENT


 


THIS FIRST AMENDMENT TO FIRST AMENDED AND RESTATED SECURED TERM LOAN
AGREEMENT (this “Amendment”) is made as of the 19th
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 Secured
Term Loan Agreement dated as of June 29, 2004 (the “Loan 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 Loan Agreement; and


 


WHEREAS, the
Administrative Agent and the Lenders have agreed to such modifications to the Loan
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 Loan Agreement.


 


2.                                       Modification
of the Loan Agreement.  Borrower,
Guarantors, the Lenders, and Administrative Agent do hereby modify and amend
the Loan Agreement as follows:


 


(a)                                  By adding the
following new definitions to §1.1 of the Loan 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”, “Subject Property Operating Property
Value” and “Unencumbered Asset Value” set forth in §1.1 of the Loan 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(c) of the Loan Agreement in its entirety and inserting in lieu
thereof the following new clause (vi) of §8.2(c):


 


“(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) or
Section 8.2(b)), provided, that such transaction, as with respect to the
Account, any of the Collateral, any Collateral Interests Property or any
Collateral Interests, or any direct or indirect interests therein, is not
prohibited by Section 8.2(d), and further 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 Loan 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 Loan Agreement in its entirety and inserting in lieu thereof the following
new §8.14:


 


2





















 


“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 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 Loan 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 ”D” to the Loan Agreement in its entirety and inserting in
lieu thereof the following new Paragraph 3 of Exhibit ”D”:


 


“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 ”D” to the Loan 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 Loan Agreement shall be deemed a reference to the Loan
Agreement as modified and amended herein.


 


3





















 


4.                                       Consent of
Guarantors.  By execution of this
Amendment, Guarantors hereby expressly consent to the modifications and
amendments relating to the Loan 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 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 Loan Agreement as
modified and amended, and that the execution and delivery of this Amendment
does not constitute, and shall not be deemed to constitute, a release, waiver
or satisfaction of Guarantors’ obligations under  the Loan Agreement, the Guaranty or the other
Loan Documents.


 


5.                                       Representations
and Warranties.  Borrower and
Guarantors represent and warrant to the Lenders and Administrative Agent as
follows:


 


(a)                                  Authorization.  The execution, delivery and performance of
this Amendment and the transactions contemplated hereby and thereby (i) are
within the authority of Borrower and the Guarantors, (ii) have been duly
authorized by all necessary proceedings on the part of such Persons, (iii) do
not and will not conflict with or result in any breach or contravention of any
provision of law, statute, rule or regulation to which any of such Persons
is subject or any judgment, order, writ, injunction, license or permit
applicable to such Persons, (iv) do not and will not conflict with or
constitute a default (whether with the passage of time or the giving of notice,
or both) under any provision of the partnership agreement or certificate,
certificate of formation, operating agreement, articles of incorporation or
other charter documents or bylaws of, or any mortgage, indenture, agreement,
contract or other instrument binding upon, any of such Persons or any of its
properties or to which any of such Persons is subject, and (v) do not and
will not result in or require the imposition of any lien or other encumbrance
on any of the properties, assets or rights of such Persons.


 


(b)                                 Enforceability.  This Amendment constitutes the valid and
legally binding obligations of Borrower and Guarantors enforceable in
accordance with the respective terms and provisions hereof, 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.


 


(c)                                  Approvals.  The execution, delivery, and performance of
this Amendment and the transactions contemplated hereby do not require the
approval or consent of any Person or the authorization, consent, approval of or
any license or permit issued by, or any filing or registration with, or the
giving of any notice to, any court, department, board, commission or other governmental
agency or authority other than those already obtained.


 


4





















 


(d)                                 Reaffirmation.  The representations and warranties made in
the Loan Documents by and with respect to Borrower or the Guarantors are true
and correct in all material respects as if such representations and warranties
were made as of the date hereof.


 


6.                                       No Default.  By execution hereof, each of the Borrower and
Guarantors certify that it is and will be in compliance with all of its respective
covenants under the Loan Documents after the execution and delivery of this
Amendment, and that no Default or Event of Default has occurred and is
continuing.


 


7.                                       Waiver of
Claims.  Borrower and Guarantors
acknowledge, represent, and agree that Borrower and Guarantors have no
defenses, setoffs, claims, counterclaims or causes of action of any kind or
nature whatsoever with respect to the Loan Documents, the administration or
funding of the Loans or any acts or omissions of Administrative Agent or any of
the Lenders, or any past or present officers, agents or employees of
Administrative Agent or any of the Lenders, and each of Borrower and Guarantors
does hereby expressly waive, release and relinquish any and all such defenses,
setoffs, claims, counterclaims and causes of action, if any.


 


8.                                       Ratification.  Except as hereinabove set forth, all terms,
covenants, and provisions of the Loan Agreement, the Guaranty and the other
Loan Documents remain unaltered and in full force and effect, and the parties
hereto do hereby expressly ratify and confirm the Loan Agreement as modified
and amended herein.  Nothing in this
Amendment shall be deemed or construed to constitute, and there has not
otherwise occurred, a novation, cancellation, satisfaction, release, extinguishment,
or substitution of the indebtedness evidenced by the Notes or the other
obligations of Borrower and Guarantors under the Loan Documents.


 


9.                                       Amendment as
Loan Document.  This Amendment shall
constitute a Loan Document.


 


10.                                 Effectiveness of
Amendment.  This Amendment shall be
effective upon the execution and delivery hereof by Borrower, Guarantors,
Administrative Agent and the Required Lenders, provided, however, that the
amendments to the Loan Agreement set forth in Sections 2(a), 2(c), 2(d), 2(e) and
2(g) of this Amendment shall not be effective unless and until the
Borrower shall have provided to Administrative Agent evidence in form and
substance reasonably satisfactory to Administrative Agent of the consummation
of the transfer (the “JV Transfer”) by the Borrower and its Subsidiaries on or
before October 31, 2005 (or such later date as may be approved in writing
by Administrative Agent) of all or substantially all of the Real Properties
described on Schedule 1 attached hereto 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, provided, further
however, that such JV Transfer shall be subject to, and in accordance with, all
terms, covenants, restrictions and conditions set forth in the Loan Documents,
including, without limitation, the delivery of such Compliance Certificates,
financial information, guaranties (if required by the Loan Documents), legal
opinions, Restricted Interests and other documents and instruments as may be
required thereunder.  In connection with
the JV Transfer, Borrower shall provide to Administrative Agent the following
updated exhibits and schedules to the Loan Agreement:   Exhibit ”C-1” (Equity Interests Properties),
Exhibit ”C-2” (Distribution Interests Properties), Exhibit ”C-3”
(Additional Interests Properties), Schedule 4.4 (Subsidiary Guarantors and
Subsidiaries) and Schedule 4.21 (List of Unencumbered Assets).


 


5





















 


11.                                 Counterparts.  This Amendment may be executed in any number
of counterparts which shall together constitute but one and the same agreement.


 


12.                                 Miscellaneous.  This Amendment shall be construed and
enforced in accordance with the laws of the State of New York.  This Amendment shall be binding upon and
shall inure to the benefit of the parties hereto and their respective permitted
successors, successors-in-title and assigns as provided in the Loan Agreement.


 


 


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INTENTIONALLY LEFT BLANK)


 


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IN WITNESS WHEREOF, the parties hereto have hereto set their hands and
affixed their seals as of the day and year first above written.


 


 


	
   

  	
  BORROWER:

  
	
   

  	
   

  
	
   

  	
  NEW PLAN EXCEL REALTY TRUST, INC., a

  Maryland corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
          /s/
  John B. Roche

  	
   

  
	
   

  	
  Name:

  	
   

  	
  John B. Roche

  	
   

  
	
   

  	
  Title:

  	
   

  	
  EVP, CFO

  	
   

  
								



 


 


	
   

  	
  GUARANTORS:

  
	
   

  	
   

  
	
   

  	
  NEW PLAN REALTY TRUST, a Massachusetts

  business trust

  
	
   

  	
   

  
	
   

  	
  By:

  	
          /s/
  John B. Roche

  	
   

  
	
   

  	
  Name:

  	
   

  	
  John B. Roche

  	
   

  
	
   

  	
  Title:

  	
   

  	
  EVP, CFO

  	
   

  
								



 


 


	
   

  	
  EXCEL REALTY TRUST-ST, INC., a Delaware

  corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
          /s/
  John B. Roche

  	
   

  
	
   

  	
  Name:

  	
   

  	
  John B.
  Roche

  	
   

  
	
   

  	
  Title:

  	
   

  	
  EVP, CFO

  	
   

  
								



 


 


Signature Page to New Plan
First Amendment to $150MM Secured Term Loan Agreement


 


7





















 


	
   

  	
  NEW PLAN FACTORY MALLS, INC., a

  Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
          /s/
  John B. Roche

  	
   

  
	
   

  	
  Name:

  	
   

  	
  John B.
  Roche

  	
   

  
	
   

  	
  Title:

  	
   

  	
  EVP, CFO

  	
   

  
								



 


 


	
   

  	
  CA NEW PLAN ASSET PARTNERSHIP IV,

  L.P., a Delaware limited partnership

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  CA New Plan
  Asset, Inc., a Delaware

  corporation, its sole general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ John B.
  Roche

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
  John B. Roche

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
  EVP, CFO

  	
   

  
									



 


 


	
   

  	
  EXCEL REALTY TRUST – NC, a North

  Carolina general partnership

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  NC
  Properties #1 Inc., a Delaware

  corporation, its managing Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ John B.
  Roche

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
  John B. Roche

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
  EVP, CFO

  	
   

  
									



 


 


Signature Page to New Plan
First Amendment to $150MM Secured Term Loan Agreement


 


8





















 


	
   

  	
  NP OF TENNESSEE, L.P., a Delaware limited

  partnership

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  New Plan of
  Tennessee, Inc., a Delaware

  corporation, its sole general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ John B.
  Roche

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
  John B. Roche

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
  EVP, CFO

  	
   

  
									



 


 


Signature Page to New Plan
First Amendment to $150MM Secured Term Loan Agreement


 


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  POINTE ORLANDO DEVELOPMENT

  COMPANY, a California general partnership

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  ERT
  Development Corporation, a Delaware

  corporation, general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ John B.
  Roche

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
  John B. Roche

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
  EVP, CFO

  	
   

  
									



 


 


	
   

  	
  By:

  	
  ERT Pointe
  Orlando, Inc., a New York

  corporation, general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ John B.
  Roche

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
  John B. Roche

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
  EVP, CFO

  	
   

  
									



 


 


Signature Page to New Plan
First Amendment to $150MM Secured Term Loan Agreement


 


10





















 


	
   

  	
  CA NEW PLAN TEXAS ASSETS, L.P., a

  Delaware limited partnership

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  CA NEW PLAN
  FLOATING RATE SPE,

  INC., a Delaware corporation, its sole

  general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ John B.
  Roche

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
  John B. Roche

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
  EVP, CFO

  	
   

  
									



 


 


	
   

  	
  HK NEW PLAN EXCHANGE PROPERTY

  OWNER I, LLC, a Delaware limited liability

  company

  
	
   

  	
   

  
	
   

  	
  By:

  	
          /s/
  John B. Roche

  	
   

  
	
   

  	
  Name:

  	
   

  	
  John B.
  Roche

  	
   

  
	
   

  	
  Title:

  	
   

  	
  EVP, CFO

  	
   

  
								



 


 


	
   

  	
  NEW PLAN OF ILLINOIS, LLC, a Delaware

  limited liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
          /s/
  John B. Roche

  	
   

  
	
   

  	
  Name:

  	
   

  	
  John B.
  Roche

  	
   

  
	
   

  	
  Title:

  	
   

  	
  EVP, CFO

  	
   

  
								



 


 


	
   

  	
  NEW PLAN PROPERTY HOLDING

  COMPANY, a Maryland real estate investment

  trust

  
	
   

  	
   

  
	
   

  	
  By:

  	
          /s/
  John B. Roche

  	
   

  
	
   

  	
  Name:

  	
   

  	
  John B.
  Roche

  	
   

  
	
   

  	
  Title:

  	
   

  	
  EVP, CFO

  	
   

  
								



 


 


	
   

  	
  NEW PLAN OF MICHIGAN, LLC, a Delaware

  limited liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
          /s/
  John B. Roche

  	
   

  
	
   

  	
  Name:

  	
   

  	
  John B.
  Roche

  	
   

  
	
   

  	
  Title:

  	
   

  	
  EVP, CFO

  	
   

  
								



 


 


Signature Page to New Plan
First Amendment to $150MM Secured Term Loan Agreement


 


11





















 


	
   

  	
  LENDERS AND AGENTS:

  
	
   

  	
   

  
	
   

  	
  BANK OF AMERICA, N.A., a national banking

  association, individually and as Administrative

  Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
    
     /s/ Michael W. Edwards

  	
   

  
	
   

  	
  Name:

  	
   Michael
  W. Edwards

  	
   

  
	
   

  	
  Title:

  	
  Senior Vice
  President

  	
   

  
						



 


 


Signature Page to New Plan
First Amendment to $150MM Secured Term Loan Agreement


 


12





















 


	
   

  	
  THE BANK OF NEW YORK, individually and as

  Syndication Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
          /s/
  David V. Fowler

  	
   

  
	
   

  	
  Name:

  	
   

  	
  David V.
  Fowler

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Managing
  Director

  	
   

  
								



 


 


Signature Page to New Plan
First Amendment to $150MM Secured Term Loan Agreement


 


13





















 


	
   

  	
  KEYBANK NATIONAL ASSOCIATION, a

  national banking association, individually and as

  Co-Managing Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
          /s/
  Daniel P. Stegemoeller

  	
   

  
	
   

  	
  Name:

  	
   

  	
  Daniel P.
  Stegemoeller

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Vice
  President

  	
   

  
								



 


 


Signature Page to New Plan
First Amendment to $150MM Secured Term Loan Agreement


 


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  SUNTRUST
  BANK, individually and as Managing

  Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
          /s/
  Nancy B. Richards

  	
   

  
	
   

  	
  Name:

  	
   

  	
  Nancy B.
  Richards

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Senior Vice
  President

  	
   

  
								



 


 


Signature Page to New Plan
First Amendment to $150MM Secured Term Loan Agreement


 


15





















 


	
   

  	
  PNC BANK, NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
          /s/
  Brian P. Kelly

  	
   

  
	
   

  	
  Name:

  	
   

  	
  Brian P.
  Kelly

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Vice
  President

  	
   

  
								



 


 


Signature Page to New Plan
First Amendment to $150MM Secured Term Loan Agreement


 


16