NEW PLAN EXCEL REALTY TRUST, INC. SECOND AMENDMENT TO TERM LOAN AGREEMENT

Exhibit 10.4

NEW PLAN EXCEL REALTY TRUST, INC.

SECOND AMENDMENT TO
TERM LOAN AGREEMENT

THIS SECOND AMENDMENT TO 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 CITICORP NORTH AMERICA, INC., as administrative agent (in such capacity, the “Administrative Agent”).

RECITALS.

WHEREAS, Borrower, Administrative Agent and certain of the Lenders entered into that certain Term Loan Agreement dated as of April 5, 2005, as amended by that certain First Amendment to Term Loan Agreement dated as of July 13, 2005 (as so amended, the “Loan Agreement”); and

WHEREAS, certain of the Guarantors executed that certain Guaranty dated as of April 5, 2005, in favor of Administrative Agent and Lenders and that certain Acknowledgement, Confirmation and Reaffirmation, dated as of July 13, 2005, in favor of Administrative Agent and Lenders, and New Plan of Michigan, LLC executed that certain Guaranty dated as of July 12, 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, 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” 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(b) of the Loan 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 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:

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“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) $1,225,000,000.00, 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                     Unsecured 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 at such time to be more than 57.5% of Unencumbered Asset Value at such time.”

(g)                                 By deleting Paragraph 3 of Exhibit ”C” to the Loan 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 Closing 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 Closing Date.]”

(h)                                 By deleting Paragraph 5 of Exhibit ”C” to the Loan Agreement in their entirety and inserting in lieu thereof the following new Paragraph 5:

“5.                                 Unsecured 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.

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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.

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(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 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 and other documents and instruments as may be required thereunder.  In connection with the JV Transfer, Borrower shall provide to Administrative Agent an updated Schedule 4.4 (Subsidiary Guarantors and Subsidiaries) to the Loan Agreement and an updated Schedule 4.20 (List of Unencumbered Assets) to the Loan Agreement.

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11.                                 Costs and Expenses.  The Borrower acknowledges that all costs, fees and expenses as described in Section 11.5 of the Loan Agreement incurred by the Administrative Agent and the Lead Arrangers, including, without limitation, the reasonable fees and disbursements of Special Counsel, with respect to this Amendment and the documents and transactions contemplated hereby shall be for the account of the Borrower.

12.                                 Headings.  Section headings have been inserted in this Amendment for convenience only and shall not be construed to be a part hereof.

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

14.                                 Governing Law.  This Amendment and the rights and obligations of the parties hereunder shall be governed by, and construed and interpreted in accordance with, the internal laws of the State of New York, without regard to principles of conflict of laws.

15.                                 Counterparts.  This Amendment may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.

16.                                 Successors and Assigns.  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.

(REMAINDER OF PAGE 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.

Signature Page to New Plan Second Amendment to Term Loan Agreement

Signature Page to New Plan Second Amendment to Term Loan Agreement

Signature Page to New Plan Second Amendment to Term Loan Agreement

Signature Page to New Plan Second Amendment to Term Loan Agreement

Signature Page to New Plan Second Amendment to Term Loan Agreement

Signature Page to New Plan Second Amendment to Term Loan Agreement

Signature Page to New Plan Second Amendment to Term Loan Agreement

Signature Page to New Plan Second Amendment to Term Loan Agreement

Signature Page to New Plan Second Amendment to Term Loan Agreement