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EXHIBIT 4.01
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SECOND SUPPLEMENTAL INDENTURE
dated as of July 3, 1997
between
EXCEL REALTY TRUST, INC.
and
STATE STREET BANK AND TRUST COMPANY OF CALIFORNIA, N.A., as Trustee
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SENIOR DEBT SECURITIES
of
EXCEL REALTY TRUST, INC.
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THIS SECOND SUPPLEMENTAL INDENTURE is entered into as of July 3, 1997 by
and between Excel Realty Trust, Inc., a Maryland corporation (the "Company"),
and State Street Bank and Trust Company of California, N.A., a national banking
association organized under the laws of the United States, as trustee (the
"Trustee").
WHEREAS, the Company and The First National Bank of Boston ("FNBB") entered
into that certain Indenture dated as of May 8, 1995 (the "Original Indenture"),
relating to the Company's senior debt securities;
WHEREAS, the Trustee succeeded to all or substantially all of the corporate
trust business of FNBB and thereby became the successor of FNBB under the
Indenture;
WHEREAS, the Company and the Trustee entered into that certain First
Supplemental Indenture dated as of April 4, 1997 (the "First Supplemental
Indenture" and, together with the Original Indenture, the "Indenture"), amending
certain provisions of the Original Indenture;
WHEREAS, the Company has made a request to the Trustee that the Trustee
join with it, in accordance with Section 901 of the Indenture, in the execution
of this Second Supplemental Indenture to amend certain existing provisions or
add certain additional provisions to the Indenture for the benefit of Holders of
all series of Securities created on or after the date of this Second
Supplemental Indenture; and
WHEREAS, the Company and the Trustee are authorized to enter into this
Second Supplemental Indenture;
NOW, THEREFORE, the Company and the Trustee agree as follows:
Section 1. Relation to Indenture. This Second Supplemental Indenture
supplements the Indenture and shall be a part and subject to all the terms
thereof. Except as supplemented hereby, the Indenture and the Securities issued
thereunder shall continue in full force and effect.
Section 2. Capitalized Terms. Capitalized terms used herein and not
otherwise defined herein are used as defined in the Indenture.
Section 3. Limitations on Incurrence of Debt. Section 1004 of the Indenture
is amended to read, in its entirety, as follows:
SECTION 1004. Limitations on Incurrence of Debt. (a) The Company will
not, and will not permit any Subsidiary to, incur any Debt if, immediately
after giving effect to the incurrence of such additional Debt, the
aggregate principal amount of all outstanding Debt of the Company and its
Subsidiaries on a consolidated basis determined in accordance with GAAP is
greater than 60% of the sum of (i) Total Assets as of the end of the
calendar quarter covered in the Company's Annual Report on Form 10-K or
Quarterly Report on Form 10-Q, as the case may be, most recently filed with
the Commission (or, if such filing is not permitted under the Securities
Exchange Act of 1934, with the Trustee) prior to the incurrence of such
additional Debt and (ii) the purchase price of any real estate assets
acquired by the Company or any Subsidiary since the end of such
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calendar quarter, including those obtained in connection with the
incurrence of such additional Debt (to the extent that such proceeds were
not used to acquire such real estate assets or mortgages receivable or used
to reduce Debt).
(b) In addition to the limitation set forth in subsection (a) of this
Section 1004, the Company will not, and will not permit any Subsidiary to,
incur any Debt if Consolidated Income Available for Debt Service for any 12
consecutive calendar months within the 15 calendar months immediately
preceding the date on which such additional Debt is to be incurred shall
have been less than 1.5 times the Maximum Annual Service Charge on the Debt
of the Company and all Subsidiaries to be outstanding immediately after the
incurring of such additional Debt.
(c) In addition to the limitations set forth in subsections (a) and
(b) of this Section 1004, the Company will not, and will not permit any
Subsidiary to, incur any Debt secured by any mortgage, lien, charge,
pledge, encumbrance or security interest of any kind upon any of the
property of the Company or any Subsidiary, whether owned at the date hereof
or hereafter acquired, if, immediately after giving effect to the
incurrence of such additional Debt, the aggregate principal amount of all
outstanding Debt of the Company and its Subsidiaries which is secured by
any mortgage, lien, charge, pledge, encumbrance or security interest on
property of the Company or any Subsidiary is greater than 40% of the sum of
(i) Total Assets as of the end of the calendar quarter covered in the
Company's Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as
the case may be, most recently filed with the Commission (or, if such
filing is not permitted under the Securities Exchange Act of 1934, with the
Trustee) prior to the incurrence of such additional Debt and (ii) the
purchase price of any real estate assets acquired by the Company or any
Subsidiary since the end of such calendar quarter, including those obtained
in connection with the incurrence of such additional Debt.
(d) For purposes of this Section 1004, Debt shall be deemed to be
"incurred" by the Company or a Subsidiary whenever the Company or such
Subsidiary shall create, assume, guarantee or otherwise become liable in
respect thereof.
Section 4. Counterparts. This Second Supplemental Indenture may be executed
in counterparts, each of which shall be deemed an original, but all of which
shall together constitute one and the same instrument.
Section 5. Governing Law. THIS SECOND SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
(WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF).
Section 6. Concerning the Trustee. The Trustee shall not be responsible for
any recital herein (other than the second and fifth recitals as they appear as
they apply to the Trustee) as such recitals shall be taken as statements of the
Company, or the validity of the execution by the Company of this Second
Supplemental Indenture. The Trustee makes no representations as to the validity
or sufficiency of this Second Supplemental Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
EXCEL REALTY TRUST, INC.
By:/s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Executive Vice President
[SEAL]
Attest:
/s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Sr. Vice President
STATE STREET BANK AND TRUST
COMPANY OF CALIFORNIA, N.A.,
as Trustee
By:/s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
Title: Assistant Vice President
[SEAL]
Attest:
/s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Assistant Vice President
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