Exhibit 4.2
FIRST SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as
of September 18, 2001, between Excel Legacy Corporation, a Delaware corporation
(the "Company"), and Xxxxx Fargo Bank Minnesota, N.A. (the "Trustee").
RECITALS
WHEREAS, the Company and the Trustee entered into an Indenture, dated
as of November 5, 1999 (the "Indenture"), pursuant to which the Company has
originally issued its 10.0% Senior Redeemable Secured Notes due November 5, 2004
(the "Securities");
WHEREAS, Section 9.02 of the Indenture provides that, subject to
certain conditions stated therein, the Company and the Trustee may amend the
Indenture or the Securities with the written consent of the Holders of a
majority in principal amount of the then outstanding Securities (the "Requisite
Consents");
WHEREAS, the Company deems it desirable to make certain amendments to
the Indenture; and
WHEREAS, the Company has determined that all things necessary to make
this Supplemental Indenture a valid indenture and agreement according to its
terms, including without limitation the receipt of the Requisite Consents, have
been done, and the Company has delivered to the Trustee an Officer's Certificate
and Opinion of Counsel stating that all conditions precedent provided for in the
Indenture relating to executing this Supplemental Indenture have been complied
with.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
parties hereto mutually covenant and agree for the equal and ratable benefit of
the Holders of the Securities as follows:
ARTICLE ONE
AMENDMENTS TO INDENTURE
1.1 GENERAL AMENDMENTS. The Indenture is amended by deleting the
term "10.0% Senior Redeemable Secured Notes due November 5, 2004" throughout the
Indenture and substituting the following term therefor:
"10.0% Senior Redeemable Notes due November 5, 2004."
1.2 AMENDMENTS TO ARTICLE 1.
(a) Section 1.01 of the Indenture is amended by deleting
the following definitions in their entirety:
"Collateral Agent"
"Pledge Agreement"
"Pledged Collateral"
(b) Section 1.01 of the Indenture is amended by deleting
the definition of "Securities" in its entirety and
substituting the following therefor:
"Securities" means the 10.0% Senior Redeemable Notes
due 2004 issued under this Indenture in the form of Exhibit A
hereto.
1.3 AMENDMENTS TO ARTICLE 6. Section 6.01 of the Indenture is
amended by deleting subsection (3) and substituting the following therefor:
"(3) the Company fails to comply with any of its other
agreements or covenants in, or provisions of, the Securities or this
Indenture and the Default continues for the period and after the notice
specified below;"
1.4 AMENDMENTS TO ARTICLE 10. Article 10 of the Indenture is
amended to read in its entirety as follows:
"Article 10. [Intentionally Omitted.]"
1.5 AMENDMENTS TO ARTICLE 11. Section 11.08 of the Indenture is
amended to read in its entirety as follows:
"A director, officer, employee or stockholder, as such, of the
Company shall not have any liability for any obligations of the Company
under the Securities or the Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. Each
Securityholder by excepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for the
issue of the Securities."
1.6 AMENDMENTS TO EXHIBIT A.
(a) Exhibit A is amended by deleting the term "10.0%
Senior Redeemable Secured Notes due 2004" throughout
Exhibit A and substituting the following therefor:
"10.0% Senior Redeemable Notes due 2004."
(b) Paragraph 4 of Exhibit A is amended to read in its
entirety as follows:
"4. Indenture. The Company issued the Securities
under an Indenture dated as of November 5, 1999 ("Indenture")
between the Company and the Trustee. The terms of the
Securities include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture
Act of 1939 (15 U.S. Code
Sections 77aaa-77bbbb) (the "TIA") as in effect on the date of
the Indenture. The Securities are subject to, and qualified
by, all such terms, certain of which are summarized hereon,
and Securityholders are referred to the Indenture and such Act
for a statement of such terms. The Securities are general
obligations of the Company limited to $19,963,509 in aggregate
principal amount."
1.7 AMENDMENTS TO EXHIBIT B. Exhibit B is hereby terminated in
its entirety.
ARTICLE TWO
MISCELLANEOUS
2.1 Upon the execution and delivery of this Supplemental Indenture
by each of the Company and the Trustee, the Indenture shall be amended and
supplemented in accordance herewith, and this Supplemental Indenture shall form
a part of the Indenture for all purposes, and every holder of Securities
heretofore or hereafter authenticated and delivered under the Indenture shall be
bound hereby, as hereby amended and supplemented.
2.2 This Supplemental Indenture is supplemental to the Indenture
and does and shall be deemed to form a part of, and shall be construed in
connection with and as part of, the Indenture for any and all purposes. Except
as specifically modified herein, the Indenture and the Securities are in all
respects ratified and confirmed and shall remain in full force and effect in
accordance with their terms, with all capitalized terms used herein without
definition having the same respective meanings ascribed to them as in the
Indenture.
2.3 Except as otherwise expressly provided herein, no duties,
responsibilities or liabilities are assumed, or shall be construed to be
assumed, by the Trustee by reason of this Supplemental Indenture. This
Supplemental Indenture is executed and accepted by the Trustee subject to all
the terms and conditions set forth in the Indenture with the same force and
effect as if those terms and conditions were repeated at length herein and made
applicable to the Trustee with respect hereto.
2.4 THIS SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAWS.
2.5 The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of such executed
copies together shall represent the same agreement.
[NEXT PAGE IS SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, all as of the date first written above.
EXCEL LEGACY CORPORATION,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Senior Vice President
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XXXXX FARGO BANK MINNESOTA, N.A.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: Corporate Trust Officer
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