Exhibit 10.3


 


NEW PLAN EXCEL REALTY TRUST, INC.


 


 


FIRST AMENDMENT

TO TERM LOAN AGREEMENT


 


This FIRST AMENDMENT TO TERM
LOAN AGREEMENT (this “Amendment”)
is dated as of July 13, 2005 and entered into by and among NEW PLAN EXCEL REALTY TRUST, INC., a
Maryland corporation (the “Borrower”),
each lender party hereto (each, a “Lender”
and, collectively, the “Lenders”)
and CITICORP NORTH AMERICA, INC.,
as administrative agent for the Lenders (in such capacity, the “Administrative Agent”), and is made
with reference to that certain Term Loan Agreement dated as of April 5,
2005 (the “Agreement”), by and among
Borrower, Lenders and Administrative Agent. 
Capitalized terms used herein without definition shall have the same
meanings herein as set forth in the Agreement. 



 


RECITALS


 


WHEREAS, the Borrower, the Lenders and the
Administrative Agent desire to amend the Agreement to provide for the making of
additional Loans thereunder:


 


NOW, THEREFORE, in consideration of the premises and
the agreements, provisions and covenants herein contained, the parties hereto
agree as follows:


 


SECTION 1.                            AMENDMENTS TO THE AGREEMENT


 


1.1.                            Amendments
to Article 1.


 


A.                                    Section 1.1
of the Agreement is hereby amended as follows:


 


1.                                       The
definition of “Borrowing Date” is hereby amended by deleting such definition in
its entirety and inserting the following definition in lieu thereof:  


 


““Borrowing Date”:  the date on which the Borrower requests the
Lenders to make the Loans, which date shall be the Effective Date or the First
Amendment Effective Date, as applicable.”


 


2.                                       The
definition of “Commitment” is hereby amended by deleting such definition in its
entirety and inserting the following definition in lieu thereof:  


 


““Commitment”: 
in respect of any Lender, such Lender’s Initial Commitment and such
Lender’s Additional Commitment, collectively.”


 


3.                                       The
definitions of “Commitment Amount” and “Commitment Percentage” are hereby
amended by deleting such definitions in their entirety.


 


4.                                       The
definition of “Highest Lawful Rate” is hereby amended by deleting the reference
to “Note” therein and inserting a reference to “Notes” in lieu thereof.


 





















 


5.                                       The
definition of “Interest Period” is hereby amended by deleting such definition
in its entirety and inserting the following definition in lieu thereof:  


 


““Interest Period”:  (a) with respect to any LIBOR Loans
requested by the Borrower, the period commencing on, as the case may be, the
Effective Date, the First Amendment Effective Date or the Conversion Date with
respect to such LIBOR Loans and ending one, two or three months thereafter, as
selected by the Borrower in its irrevocable request to the Administrative Agent
with respect to the Loans to be made on the Effective Date or the First
Amendment Effective Date or its irrevocable notice of conversion as provided in
Section 2.6, as the case may be; provided, however, that all
of the foregoing provisions relating to Interest Periods are subject to the
following:


 


(b)                                 any
Interest Period that would otherwise end on a day that is not a Business Day shall
be extended to the next succeeding Business Day unless, in the case of a LIBOR
Loan, such Business Day falls in another calendar month, in which case such
Interest Period shall end on the immediately preceding Business Day;


 


(c)                                  if,
with respect to the borrowing of any Loan as a LIBOR Loan or the conversion of
one Advance to another pursuant to Section 2.6, the Borrower shall fail to
give due notice with respect to the Loans to be made on the Effective Date or
the First Amendment Effective Date or with respect to a conversion as provided
in Section 2.6, as the case may be, the Borrower shall be deemed to have
elected that such Loan or Advance shall be made as a Prime Rate Loan;


 


(d)                                 any
Interest Period pertaining to a LIBOR Loan that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall end on the last Business Day of a calendar month;


 


(e)                                  with
respect to any Interest Period applicable to a LIBOR Loan, no such Interest
Period shall end after the Maturity Date; and


 


(f)                                    the
Borrower shall select Interest Periods so as not to have more than five (5) different
Interest Periods outstanding at any one time with respect to LIBOR Loans.”


 


6.                                       The
definition of “Loan Documents” is hereby amended by adding the words “the
Acknowledgement of Guaranty,” before the words “the Notes” in such definition.


 


7.                                       The
definition of “Required Lenders” is hereby amended by deleting such definition
in its entirety and inserting the following definition in lieu thereof:  


 


2





















 


““Required Lenders”:  the
Lenders whose aggregate Total Commitment Percentage equals or exceeds fifty-one
percent (51%), provided that the Commitment of any Defaulting Lender shall be
excluded from the calculations of Initial Commitment Amount, Additional
Commitment Amount, Total Initial Commitment Amount and Total Additional
Commitment Amount for purposes of making a determination of Required Lenders.”


 


8.                                       The
definition of “Supermajority Lenders” is hereby amended by deleting such
definition in its entirety and inserting the following definition in lieu
thereof:  


 


““Supermajority Lenders”: the Lender or Lenders
whose aggregate Total Commitment Percentage exceeds sixty-six and two-thirds
percent (66.67%), provided that the Commitment of any Defaulting Lender shall
be excluded from the calculations of Initial Commitment Amount, Additional
Commitment Amount, Total Initial Commitment Amount and Total Additional
Commitment Amount for purposes of making a determination of Supermajority
Lenders.”


 


9.                                       The
definition of “Total Commitment Amount” is hereby amended by deleting such
definition in its entirety.


 


B.                                    Section 1.1
of the Agreement is hereby further amended by adding the following definitions
thereto in alphabetical order: 


 


1.                                       “Acknowledgement
of Guaranty”: the Acknowledgement of Guaranty dated as of July 13,
2005 entered into by the Subsidiary Guarantors.


 


2.                                       “Additional
Commitment”:  in respect of any
Lender, such Lender’s undertaking, subject to the terms and conditions hereof,
to make Loans on the First Amendment Effective Date in an aggregate outstanding
principal amount not exceeding such Lender’s Additional Commitment Amount.


 


3.                                       “Additional
Commitment Amount”:  in respect of
any Lender, the amount set forth next to the name of such Lender in Exhibit B-2
under the heading “Additional Commitments” as such Lender’s Additional
Commitment Amount, as the same may be changed in accordance with the terms of
this Agreement.


 


4.                                       “Additional
Commitment Percentage”:  on any day,
and as to any Lender, the quotient of (i) such Lender’s Additional
Commitment Amount on such day, divided by (ii) the Total Additional
Commitment Amount on such day.


 


5.                                       “First
Amendment”:  the First Amendment to
Term Loan Agreement dated as of July 13, 2005 among the parties hereto.


 


6.                                       “First
Amendment Effective Date”:  as
defined in the First Amendment.


 


3





















 


7.                                       “Initial
Commitment”:  in respect of any
Lender, such Lender’s undertaking, subject to the terms and conditions hereof,
to make Loans on the Effective Date in an aggregate outstanding principal
amount not exceeding such Lender’s Initial Commitment Amount.


 


8.                                       “Initial
Commitment Amount”:  in respect of
any Lender, the amount set forth next to the name of such Lender in Exhibit B-1
under the heading “Initial Commitments” as such Lender’s Initial Commitment
Amount, as the same may be changed in accordance with the terms of this
Agreement.


 


9.                                       “Initial
Commitment Percentage”:  on any
day, and as to any Lender, the quotient of (i) such Lender’s Initial
Commitment Amount on such day, divided by (ii) the Total Initial
Commitment Amount on such day.


 


10.                                 “Total
Additional Commitment Amount”:  on
any day, the sum of the Additional Commitment Amounts of all Lenders on such
day.


 


11.                                 “Total
Commitment Percentage”:  on any day,
and as to any Lender, the quotient of (i) such Lender’s Initial Commitment
Amount plus such Lender’s Additional Commitment Amount on such day, divided by (ii) the
aggregate of the Initial Commitment Amounts plus the Additional Commitment
Amounts of all Lenders on such day.


 


12.                                 “Total
Initial Commitment Amount”:  on any
day, the sum of the Initial Commitment Amounts of all Lenders on such day.


 


1.2.                            Amendments
to Article 2.


 


A.                                    Section 2.1
of the Agreement is hereby amended by deleting such Section in its
entirety and inserting the following in lieu thereof:


 


“2.1                           Loans.  


 


(a)                                  Effective
Date Loans.  Subject to the terms and
conditions set forth in this Agreement, each of the Lenders severally agrees to
lend to the Borrower on the Effective Date the aggregate principal amount of
such Lender’s Initial Commitment Amount, for the purposes set forth in Section 2.13.  On the Effective Date, the Total Initial
Commitment Amount as of the Effective Date shall be disbursed to the Borrower
in a single advance.  Such Loans shall be
made pro rata in accordance with each Lender’s Initial Commitment
Percentage.  The acceptance by the
Borrower of such Loans hereunder shall constitute a representation and warranty
by the Borrower that all of the conditions set forth in Section 5 have
been satisfied or waived.  No portion of
any such Loan that is repaid or prepaid may be reborrowed hereunder.


 


(b)                                 First
Amendment Effective Date Loans. 
Subject to the terms and conditions set forth in this Agreement, each of
the Lenders severally


 


4





















 


agrees to lend to the Borrower on the First Amendment
Effective Date the aggregate principal amount of such Lender’s Additional
Commitment Amount, for the purposes set forth in Section 2.13.  On the First Amendment Effective Date, the
Total Additional Commitment Amount as of the First Amendment Effective Date
shall be disbursed to the Borrower in a single advance.  Such Loans shall be made pro rata in
accordance with each Lender’s Additional Commitment Percentage.  The acceptance by the Borrower of such Loans
hereunder shall constitute a representation and warranty by the Borrower that
all of the conditions set forth in Section 5 have been satisfied or
waived.  No portion of any such Loan that
is repaid or prepaid may be reborrowed hereunder.”


 


B.                                    Section 2.2(a) of
the Agreement is hereby amended by deleting such Section in its entirety
and inserting the following in lieu thereof:


 


“(a)                            Notes
as Evidence of Indebtedness.  Each
Loan of each Lender shall be evidenced by a promissory note of the Borrower,
substantially in the form of Exhibit E, with appropriate insertions
therein as to date and principal amount (each, as endorsed or modified from
time to time, a “Note” and, collectively, the “Notes”), payable
to the order of such Lender for the account of its Applicable Lending Office in
the principal face amount equal to the original amount of the Initial
Commitment of such Lender with respect to a Loan made on the Effective Date and
the original amount of the Additional Commitment of such Lender with respect to
a Loan made on the First Amendment Effective Date, respectively, and
representing the obligation of the Borrower to pay the lesser of (a) the
original amount of the Initial Commitment of such Lender with respect to a Loan
made on the Effective Date and the original amount of the Additional Commitment
of such Lender with respect to a Loan made on the First Amendment Effective
Date, respectively, and (b) the aggregate unpaid principal balance of the
Loan made by such Lender on the Effective Date or the First Amendment Effective
Date, respectively, plus interest and other amounts due and owing to such
Lender under the Loan Documents.”


 


C.                                    Section 2.3(a) of
the Agreement is hereby amended by deleting such Section in its entirety
and inserting the following in lieu thereof:


 


“ (a)                         Borrowing Request.  The Borrower shall notify the Administrative
Agent on or before the Effective Date or the First Amendment Effective Date,
respectively, as to the following matters with respect to the Loans requested
to be made on the Effective Date or the First Amendment Effective Date,
respectively: (i) the aggregate amount of the requested borrowing of
Loans; (ii) whether the requested Loans are to be Prime Rate Loans or
LIBOR Loans; (iii) in the case of LIBOR Loans, the initial Interest Period
to be applicable thereto, which shall be a period contemplated by the
definition of the term “Interest Period”; and (iv) the


 


5





















 


location and number of the Borrower’s account to which
funds are to be disbursed.  Such
telephonic borrowing request shall be irrevocable and shall be confirmed
promptly by hand delivery or facsimile to the Administrative Agent of a written
borrowing request signed by the Borrower.”


 


D.                                    Section 2.3(b) of
the Agreement is hereby amended by deleting such Section in its entirety
and inserting the following in lieu thereof:


 


“(b)                           Funding
of Loans.  Each Lender will make its
Loan, in an amount equal to its Initial Commitment Amount or its Additional
Commitment Amount, as applicable, available to the Administrative Agent for the
account of the Borrower at the office of the Administrative Agent set forth in Section 11.2
not later than 12:00 noon on the applicable Borrowing Date in funds immediately
available to the Administrative Agent at such office.  The amounts so made available to the
Administrative Agent on such Borrowing Date will then, subject to the
satisfaction of the terms and conditions of this Agreement, as determined by
the Administrative Agent, be made available on such date to the Borrower by the
Administrative Agent at the office of the Administrative Agent specified in Section 11.2
by crediting the account of the Borrower on the books of such office with the
aggregate of said amounts received by the Administrative Agent.”


 


E.                                      Section 2.3(c) of
the Agreement is hereby amended by adding the word “applicable” before the
words “Borrowing Date” in each place that the words “Borrowing Date” appear in
the first sentence of Section 2.3(c).


 


F.                                      Section 2.5(b)(i) of
the Agreement is hereby amended by adding the word “Total” before the words “Commitment
Percentage”.


 


G.                                    Section 2.5(b)(ii) of
the Agreement is hereby amended by adding the word “Total” before the words “Commitment
Percentage”.


 


H.                                    Section 2.12
of the Agreement is hereby amended by deleting the word “the” before the words “Borrowing
Date” and inserting the word “a” in lieu thereof.


 


1.3.                            Amendment
to Article 5.


 


A.                                    Section 5.8
of the Agreement is hereby amended by deleting such Section in its
entirety and inserting the following in lieu thereof:


 


“5.8                           Compliance.


 


(a)                                  On
the Effective Date and after giving effect to the Loans to be made or created
on such date, (a) the Borrower shall be in compliance with all of the
terms, covenants and conditions hereof, (b) there shall not exist and be
continuing any Default or Event of Default, (c) the representations and
warranties contained in the Loan Documents shall be


 


6





















 


true and correct, and (d) the aggregate
outstanding principal balance of the Loans made on such date shall not exceed
the Total Initial Commitment Amount. 
Each notice requesting a Loan shall be deemed to constitute a
representation and warranty by the Borrower on the date thereof that each of
the foregoing matters is true and correct in all respects.


 


(b)                                 On
the First Amendment Effective Date and after giving effect to the Loans to be
made or created, (a) the Borrower shall be in compliance with all of the
terms, covenants and conditions hereof, (b) there shall not exist and be
continuing any Default or Event of Default, (c) the representations and
warranties contained in the Loan Documents shall be true and correct, and (d) the
aggregate outstanding principal balance of the Loans made on such date shall
not exceed the Total Additional Commitment Amount.  Each notice requesting a Loan shall be deemed
to constitute a representation and warranty by the Borrower on the date thereof
that each of the foregoing matters is true and correct in all respects.”


 


1.4.                            Amendments
to Article 11.


 


A.                                    Section 11.1
of the Agreement is hereby amended by deleting the words “Total Commitment
Amount” in clause (i) thereof and inserting in lieu thereof the words “or
the Total Initial Commitment Amount or the Total Additional Commitment Amount”.


 


B.                                    Section 11.7(f) of
the Agreement is hereby amended by deleting the words “its Note” therein and
inserting the words” any of its Notes” in lieu thereof.


 


C.                                    Section 11.10
of the Agreement is hereby amended by deleting the word “Note” therein and
inserting the word “Notes” in lieu thereof.


 


1.5.                            Amendment
to Exhibits.


 


A.                                    Exhibit A
to the Agreement is hereby amended by deleting such Exhibit A in its
entirety and replacing it with Exhibit A attached hereto.


 


B.                                    Exhibit B
to the Agreement is hereby amended by deleting such Exhibit B in its
entirety and replacing it with Exhibit B-1 and Exhibit B-2 attached
hereto.


 


SECTION 2.                            REPRESENTATIONS AND
WARRANTIES


 


In order to induce the Lenders to enter into this
Amendment and to amend the Agreement in the manner provided herein, the
Borrower represents and warrants to each Lender that the representations and
warranties contained in Article 4 of the Agreement are true, correct and
complete in all material respects on and as of the First Amendment Effective
Date (as hereinafter defined) to the same extent as though made on and as of
that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case they were true, correct
and complete in all material respects on and as of such earlier date.  Each Lender represents to the Administrative
Agent that, in acquiring its Note with respect to the Loan


 


7





















 


to be made by it on the
First Amendment Effective Date, it is acquiring the same for its own account
for the purpose of investment and not with a view to selling the same in
connection with any distribution thereof, provided that the disposition of each
Lender’s own Property shall at all times be and remain within its control.


 


SECTION 3.                            CONDITIONS TO EFFECTIVENESS


 


This Amendment shall be effective as of the date (the “First Amendment Effective Date”) on
which all of the following conditions are satisfied in the Administrative Agent’s
sole discretion:


 


3.1.                            Evidence
of Action.


 


A.                                    The
Administrative Agent shall have received a certificate, dated the First
Amendment Effective Date, of the Secretary or Assistant Secretary of the
Borrower substantially in the form of Exhibit G to the Agreement (i) attaching
a true and complete copy of the resolutions of its Board of Directors
authorizing the execution and delivery of the Amendment by the Borrower and the
performance of the Borrower’s obligations hereunder and under the Agreement as
amended hereby (the “Amended Agreement”),
and of all other documents evidencing other necessary action (in form and
substance reasonably satisfactory to the Administrative Agent) taken by it to
authorize the Amendment and the transactions contemplated thereby, (ii) setting
forth the incumbency of its officer or officers who may sign the Amendment,
including therein a signature specimen of such officer or officers, and (iii) certifying
that the corporate charter and by laws delivered on the Effective Date are in
full force and effect and have not been amended or modified since the Effective
Date.


 


B.                                    The
Administrative Agent shall have received a certificate, dated the First
Amendment Effective Date, of the Secretary or Assistant Secretary of each
Subsidiary Guarantor (or such Subsidiary Guarantor’s managing partner, general
partner or managing member, as applicable) substantially in the form of Exhibit H
to the Agreement (i) attaching a true and complete copy of the resolutions
of its Board of Directors, Trustees or Managers, as the case may be,
authorizing its execution and delivery of the Acknowledgement of Guaranty and
the continued performance of its obligations under the Guaranty, and of all
other documents evidencing other necessary action (in form and substance
reasonably satisfactory to the Administrative Agent) taken by it to authorize the
Acknowledgement of Guaranty and the transactions contemplated thereby, (ii) setting
forth the incumbency of its officer or officers who may sign the
Acknowledgement of Guaranty, including therein a signature specimen of such
officer or officers, and (iii) certifying that the articles of
incorporation or corporate charter, declaration of trust or certificate of
formation and, if applicable, by laws, operating agreement or agreement of
limited liability company, and if such certificate is from such Subsidiary
Guarantor’s managing partner, general partner or managing member, the
applicable Subsidiary Guarantor’s partnership agreement or operating agreement
and other organizational documents delivered on the Effective Date are in full
force and effect and have not been amended or modified since the Effective
Date.


 


3.2.                            This
Agreement.  The Administrative
Agent shall have received counterparts of this Amendment signed by each of the
parties hereto (or receipt by the


 


8





















 


Administrative Agent from a party hereto of a facsimile signature page signed
by such party which shall have agreed to promptly provide the Administrative
Agent with originally executed counterparts hereof).  


 


3.3.                            Notes.  The Administrative Agent shall have
received, for the benefit of each Lender having an Additional Commitment Amount
greater than zero, a Note in favor of such Lender reflecting the Additional
Commitment Amount of such Lender, each of which Notes shall be duly executed by
an Authorized Signatory of the Borrower.


 


3.4.                            Acknowledgement
of Guaranty.  The Administrative
Agent shall have received counterparts of the Acknowledgement of Guaranty
signed by each of the Subsidiary Guarantors (or receipt by the Administrative
Agent from a party thereto of a facsimile signature page signed by such
party which shall have agreed to promptly provide the Administrative Agent with
originally executed counterparts thereof).


 


3.5.                            Opinion
of Counsel to the Borrower.  The
Administrative Agent shall have received an opinion of (i) Hogan &
Hartson L.L.P., outside counsel to the Borrower, (ii) Steven F. Siegel, Esq.,
in house counsel to the Borrower, and (iii) counsel to each Subsidiary
Guarantor, and their respective general partners, managing partners or managing
members, as applicable, each addressed to the Administrative Agent and the
Lenders, and each dated the First Amendment Effective Date, and each in form
and substance satisfactory to Administrative Agent, covering such matters as
the Administrative Agent may reasonably request.


 


3.6.                            Fees
and Expenses of Special Counsel. 
The fees and expenses of Special Counsel in connection with the
preparation, negotiation and closing of this Amendment shall have been paid. 


 


SECTION 4.                            MISCELLANEOUS


 


A.                                    Reference
to and Effect on the Agreement and the Other Loan Documents.  


 


1.                                       On
and after the First Amendment Effective Date, each reference in the Agreement
to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import
referring to the Agreement, and each reference in the other Loan Documents to
the “Agreement”, “thereunder”, “thereof” or words of like import referring to
the Agreement shall mean and be a reference to the Amended Agreement. 


 


2.                                       Except
as specifically amended by this Amendment, the Agreement and the other Loan
Documents shall remain in full force and effect and are hereby ratified and
confirmed.  


 


3.                                       The
execution, delivery and performance of this Amendment shall not, except as
expressly provided herein, constitute a waiver of any provision of, or operate
as a waiver of any right, power or remedy of the Administrative Agent or any
Lender under, the Agreement or any of the other Loan Documents. 


 


9





















 


B.                                    Costs
and Expenses.  The Borrower acknowledges
that all costs, fees and expenses as described in Section 11.5 of the
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.


 


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


 


D.                                    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.


 


E.                                      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.


 


[Remainder of page intentionally
left blank]


 


10





















 


IN WITNESS WHEREOF, the parties hereto have caused
this Amendment to be duly executed and delivered by their proper and duly
authorized officers as of the day and year first above written.


 


	
   

  	
  NEW PLAN EXCEL REALTY
  TRUST, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John B. Roche

  	
   

  
	
   

  	
   

  	
  Name:  John B. Roche

  
	
   

  	
   

  	
  Title:   Executive Vice President and

  Chief Financial Officer

  



 


 


Signature Page to First Amendment


 





















 


	
   

  	
  CITICORP NORTH AMERICA,
  INC.,

  individually, as a Lender, and as Administrative

  Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David Bouton

  	
   

  
	
   

  	
   

  	
  Name:  David Bouton

  
	
   

  	
   

  	
  Title:   Vice President

  



 


Citicorp North America, Inc.

Two Penns Way

New Castle, Delaware  19720

Attention:  Jonathan Lavinier

Facsimile:  (212) 994-0961


 


with a copy to:


 


Citicorp North America, Inc.

390 Greenwich Street, First Floor

New York, New York  10013

Attn:  Niraj Shah

Facsimile:  (212) 783-8548


 


Signature Page to First Amendment


 





















 


	
   

  	
  CITIGROUP GLOBAL
  MARKETS INC., as a

  Joint Lead Arranger and Joint Book Running

  Manager

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David Bouton

  	
   

  
	
   

  	
   

  	
  Name:  David Bouton

  
	
   

  	
   

  	
  Title:   Director

  



 


Citigroup Global Markets Inc.

390 Greenwich Street, First Floor

New York, New York  10013

Attn:  Niraj Shah

Facsimile:  (212) 783-8548


 


Signature Page to First Amendment


 





















 


	
   

  	
  MERRILL LYNCH, PIERCE,
  FENNER & SMITH

  INCORPORATED, as a Joint Lead Arranger and

  Joint Book Running Manager and as Syndication

  Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Douglas W. Sesler

  	
   

  
	
   

  	
   

  	
  Name: Douglas W. Sesler

  
	
   

  	
   

  	
  Title:   Managing Director

  



 


Merrill Lynch, Pierce, Fenner & Smith

Incorporated

4 World Financial Center

200 Vesey Street

New York, New York  10080

Attn:  Koren Sill

Facsimile:  


 


Signature Page to First Amendment


 





















 


	
   

  	
  MERRILL LYNCH BANK USA,
  as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Derek Befus

  	
   

  
	
   

  	
   

  	
  Name:  Derek Befus

  
	
   

  	
   

  	
  Title:    Vice President

  



 


Merrill Lynch Bank USA


15 West South Temple, Suite 300


Salt Lake City, Utah 
84101


Attn:  Frank K.
Stepan


Phone:  (801) 526-8316


Facsimile: 
(801) 531-7470


 


Signature Page to First Amendment


 





















 


EXHIBIT B-1


 


TO TERM LOAN AGREEMENT


 


LIST OF INITIAL
COMMITMENTS

AND DOMESTIC AND LIBOR

LENDING OFFICES


 


	
  Lender

  	
   

  	
  Initial Commitment Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Citicorp North
  America, Inc.

  390 Greenwich Street, First Floor

  New York, New York 10013

  Attn:  Niraj Shah

  	
   

  	
  $

  	
  75,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  LIBOR Lending Office

  Same as Above

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Merrill Lynch
  Bank USA

  15 West South Temple, Suite 300

  Salt Lake City, Utah 84101

  Attn:  Frank K. Stepan

  Telephone:  (801) 526-8316

  Facsimile:  (801) 531-7470

  	
   

  	
  $

  	
  75,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  LIBOR Lending
  Office

  Same as Above

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  TOTAL

  	
   

  	
  $

  	
  150,000,000.00

  	
   

  



 


 


B-1





















 


EXHIBIT B-2


 


TO TERM LOAN AGREEMENT


 


LIST OF ADDITIONAL
COMMITMENTS

AND DOMESTIC AND LIBOR

LENDING OFFICES


 


	
  Lender

  	
   

  	
  Additional Commitment Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Citicorp North America, Inc.

  390 Greenwich Street, First Floor

  New York, New York 10013

  Attn: Niraj Shah

  	
   

  	
  $

  	
  25,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  LIBOR Lending
  Office

  Same as Above

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Merrill Lynch
  Bank USA

  15 West South Temple, Suite 300

  Salt Lake City, Utah 84101

  Attn: Frank K. Stepan

  Telephone:  (801) 526-8316

  Facsimile:  (801) 531-7470

  	
   

  	
  $

  	
  25,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  LIBOR Lending
  Office

  Same as Above

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  TOTAL

  	
   

  	
  $

  	
  50,000,000.00

  	
   

  



 


B-2