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Exhibit 3.2
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED DECLARATION OF TRUST
OF
NEW PLAN REALTY TRUST
WHEREAS Section 13.1 of the Amended and Restated Declaration of Trust of
New Plan Realty Trust (the "Trust") dated as of January 15, 1996 (and filed with
the Secretary of The Commonwealth of Massachusetts on March 12, 1996), as
supplemented by Certificate of Designation filed with the Secretary of The
Commonwealth of Massachusetts on July 3, 1997 (collectively the "New Plan
Declaration of Trust") provides that the New Plan Declaration of Trust may be
amended by the majority vote of the Trustees and the affirmative vote of the
holders of not less than 66-2/3% of the Shares then outstanding having the right
to vote thereon, which amendment shall be effective upon the filing with said
Secretary of a certificate signed and acknowledged by a Trustee setting forth
the text of such amendments;
NOW, THEREFORE, the undersigned, being a duly elected and serving Trustee
of the Trust, hereby certifies that the New Plan Declaration of Trust has been
amended by the addition of Section 13.4 thereto, the text of which is set forth
in the "New Plan Trust Amendments" contained in Annex II hereto (there being no
Annex I, said Annex II being identical to the Annex contained in the proxy
statement for the special meeting of shareholders of the Trust hereinbelow
referred to) which have been duly adopted by the affirmative vote of a majority
of the Trustees of the Trust and by the affirmative vote of the holders of more
than 66-2/3% of the Shares outstanding and entitled to vote thereon, which
meeting of shareholders was duly called and held on September 25, 1998 in
accordance with the requirements of the New Plan Declaration of Trust.
IN WITNESS WHEREOF, I have executed this Certificate of Amendment this
25th day of September, 1998 and acknowledge the same to be my free act and deed
as a Trustee of New Plan Realty Trust.
/s/ ARNOLD LAUBICH
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Arnold Laubich, Trustee
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COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss.
Acknowledged before me this 25th day of September, 1998.
/s/ WILLIAM BRUCE KING
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William Bruce King
Notary Public
My commission expires August 24, 2001.
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ANNEX II
NEW PLAN TRUST AMENDMENTS
The following new Section 13.4 is added to the New Plan Declaration of Trust
SECTION 13.4 Alternative Business Combination.
13.4.1 General. In lieu of a reorganization or business combination
followed by the termination of the Trust and the distribution of the securities
of the successor organization among the Shareholders in redemption of their
Shares according to their respective rights pursuant to Section 13.3, the
Trustees may cause the Trust to merge with another entity in a reorganization or
business combination transaction ("Alternative Business Combination
Transaction") pursuant to which (a) the Shares of the Trust are exchanged for
such securities of a Person of which such other entity is a subsidiary or for
such other consideration as is provided for in the agreement among the Trust,
such other entity and such Person, and (b) the Trust is not terminated but
remains in existence as a subsidiary of such Person.
13.4.2 Excel Realty Trust, Inc. Merger Approved. Specifically, the
Trustees may implement the merger provided for in the Agreement and Plan of
Merger among New Plan Realty Trust, ERT Merger Sub, Inc. and Excel Realty Trust,
Inc., as amended as of August 7, 1998, approved by the affirmative vote of
66-2/3% or more of all outstanding Shares of the Trust having the right to vote
thereon at the meeting of Shareholders held on September 25, 1998, a copy of
which is attached as an Annex to the notice and proxy statement for such meeting
(such merger and agreement hereinafter the "Excel Merger" and the "Excel Merger
Agreement," respectively). Upon effectiveness of the Excel Merger as provided in
the Excel Merger Agreement, (a) the outstanding Shares of Beneficial Interest
and the outstanding Preferred Shares of the Trust shall be exchanged for the
securities or rights to securities of Excel Realty Trust, Inc. (whose name may
thereupon be changed to New Plan Excel Realty Trust, Inc. (hereinafter referred
to as "Surviving REIT")) as provided in the Excel Merger Agreement; (b)
Surviving REIT shall become the sole holder of Shares of Beneficial Interest of
the Trust as provided in the Excel Merger Agreement, with the Trust thereupon
becoming a wholly-owned subsidiary of Surviving REIT; and (c) the number and
identity of the Trustees shall be as set forth in the Excel Merger Agreement.
The Trustees shall have full power and authority to, and shall, take or
authorize such actions as they determine to be appropriate or convenient to
carry out and to implement the Excel Merger Agreement and to effect the Excel
Merger.
13.4.3 Approval of Shareholders. This Section 13.4 has been added to the
Declaration of Trust by an amendment thereto approved by the Trustees and the
affirmative vote of 66-2/3% or more of all outstanding Shares of the Trust
having the right to vote thereon at the meeting of Shareholders held on
September 25, 1998, as part of the same meeting and/or vote that approved the
Excel Merger provided for in Section 13.4.2. Accordingly, the Excel Merger
having been approved by the affirmative vote of 66-2/3% or more of all
outstanding Shares of the Trust having the right to vote thereon, no further
action by the Shareholders is necessary to approve and effect the Excel Merger.
However, in the event that the Excel Merger should not be effected for any
reason and the Trustees recommend an Alternative Business Combination
Transaction of the type authorized in Section 13.4.1 with some other Person, the
authority of the Trustees to implement such other Alternative Business
Combination Transaction shall be subject to the prior approval by the
affirmative vote of 66-2/3% or more of all outstanding Shares of the Trust
having the right to vote thereon at a meeting of Shareholders the notice for
which includes a description of the principal terms of such Alternative Business
Combination Transaction.
13.4.4 Consummation of Alternative Business Combination Transaction.
Notwithstanding any other provision hereof, including without limitation any
provision with respect to shareholder ownership limitations or REIT status, any
Alternative Business Combination Transaction (including the Excel Merger) may be
consummated in accordance with this Section 13.4.