X. X. XXXX REAL ESTATE INVESTMENT TRUST,
Obligor
AND
U.S. BANK TRUST NATIONAL ASSOCIATION,
Indenture Trustee
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SECOND SUPPLEMENTAL INDENTURE
Dated as of January 13, 1999
Supplemental to Indenture
Dated as of September 1, 1992
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$140,000,000
NOTES DUE FROM ONE YEAR TO
TEN YEARS FROM DATE OF ISSUE
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SECOND SUPPLEMENTAL INDENTURE, dated as of January 13, 1999, between X. X.
Xxxx Real Estate Investment Trust (the "Trust"), a Maryland real estate
investment trust, having its principal office at 0000 Xxxxxxxxxxx Xxxxxx, Chevy
Chase, Maryland, and U.S. Bank Trust National Association (formerly known as
First Trust of New York, National Association) (the "Indenture Trustee") having
its Principal Corporate Trust Office at the date hereof at 000 Xxxx Xxxxxx,
Xxxxx 0000, Xxx Xxxx, XX 00000, Attn: Corporate Trust Department.
WHEREAS, the Trust and the Indenture Trustee have entered into an Indenture
dated as of September 1, 1992 and a First Supplemental Indenture dated as of
January 16, 1997 (together, hereinafter called the "Original Indenture"),
pursuant to which the Trust created Notes with a principal amount of $80,000,000
due from one year to ten years from date of issue (the "Notes") to be issued by
the Trust; and
WHEREAS, Section 9.01 of the Original Indenture permits the Trust and the
Indenture Trustee to enter into one or more supplemental indentures, without the
consent of the Holders of any Notes, to create Notes in addition to the
$80,000,000 principal amount of Notes initially issuable under the Original
Indenture; and
WHEREAS, the Board of Trustees has duly authorized the authentication and
delivery of additional Notes with an aggregate principal amount of $60,000,000
by a Trustee's Resolution dated January 13, 1999; and
WHEREAS, the additional Notes with an aggregate principal amount of
$60,000,000 shall be identical to the Notes initially issuable under the
Original Indenture, except for interest rate, maturity date and issue date; and
WHEREAS, in order to reflect the increase to $140,000,00 of the aggregate
principal amount of Notes which may be authenticated and delivered by the Trust
and to amend the provision of the Original Indenture with respect to such
increase, the Trust and the Indenture Trustee have determined to enter into this
Second Supplemental Indenture pursuant to Section 9.01 of the Indenture.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes by
the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Notes, except as otherwise provided
in the Original Indenture or this Second Supplemental Indenture, as
follows:
Section 1.1 The first paragraph of Section 3.01 of the Indenture dated as
of September 1, 1992 between the Trust and the Indenture Trustee shall be
replaced as follows to reflect the new aggregate principal amount of Notes which
may be authenticated and delivered under the Original Indenture:
"The Notes shall be designated as Notes Due From One Year to Ten Years from
Date of Issue. The initial aggregate principal amount of Notes which may be
authenticated and delivered under this Indenture is limited to $140,000,000,
except for Notes authenticated and delivered upon transfer of, or in exchange
for, or in lieu of other Notes pursuant to Section 3.04, 3.05, 3.06 or 9.06.
Additional Notes in excess of such aggregate principal amount may be issued
pursuant to supplemental indentures as provided by Section 9.01."
Section 1.2 This Second Supplemental Indenture is executed by the Trust and
the Indenture Trustee pursuant to the provisions of Section 9.01 of the Original
Indenture, and the terms and conditions hereof shall be deemed to be part of the
Original Indenture for all purposes. The Original Indenture, as supplemented by
this Second Supplemental Indenture, is in all respects hereby adopted, ratified
and confirmed.
Section 1.3 The covenants and obligations set forth in this Second
Supplemental Indenture as having been made by the Trust have been made by the
Trustees of the Trust acting as such Trustees pursuant to the authority vested
in them by the Declaration of Trust. This Second Supplemental Indenture has been
executed by the Trustees or officers of the Trust in their capacities as
Trustees or officers under the Declaration of Trust, and not individually, and,
in accordance with the provisions of the Declaration of Trust, the covenants and
obligations of the Trust or the Trustees contained in any Note, the Original
Indenture and in the Second Supplemental Indenture are not personally binding
upon, nor shall resort be and had to the private property of, any of the
Trustees or shareholders, officers, employees or agents of the Trust, but the
Trust's property only shall be bound.
Section 1.4. Effective Date. This Second Supplemental
Indenture, and all obligations hereunder, shall become effective
on January 13, 1999.
* * * * *
Capitalized terms not otherwise defined herein shall, where not
inconsistent with the subject or context, have the same meaning ascribed to such
terms in the Original Indenture.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, U.S. Bank Trust National Association has caused this
Supplemental Indenture to be duly executed and its seal to be hereunto affixed
and attested, and the X. X. Xxxx Real Estate Investment Trust has caused this
Supplemental Indenture to be duly executed, and its seal to be hereunto affixed
and attested in Chevy Chase, Maryland, all as of the day and year first above
written.
Attest: U.S. BANK TRUST NATIONAL ASSOCIATION
By:
-------------------------------- -----------------------------------
Name: Name: Xxxxx X. Xxxxxxxx, Xx.
Title: Assistant Secretary Title: Vice President
Attest: X. X. XXXX REAL ESTATE INVESTMENT TRUST
By:
-------------------------------- -----------------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxxx Xxxxxxx, Xx.
Title: Secretary Title: Vice President
State of New York ss.:
County of
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On this ____ day of January 1999, before me personally came XXXXX X.
XXXXXXXX, Xx. and __________________ who, being by me duly sworn, did depose and
say that they are the Vice President and Assistant Secretary, respectively, of
U.S. BANK TRUST NATIONAL ASSOCIATION, the corporation described in and which
executed the foregoing instrument; that they know the seal of said corporation;
that the seal affixed to such instrument is such corporate seal; that it was so
affixed by the authority of the Board of Directors of said corporation and that
they signed their names thereto by like authority.
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Notary Public
(Notarial Seal)
My Commission Expires
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State of Maryland ss.:
County of Xxxxxxxxxx
I, _____________________, a notary public in and for the County and State
aforesaid, do certify that XXXXX XXXXXXX, XX. and XXXXXX X. XXXXXX, whose names
as Vice President and Secretary, respectively, of X. X. XXXX REAL ESTATE
INVESTMENT TRUST, a Maryland real estate investment trust, are signed to the
writing above, bearing date as of the 13th day of January 1999, have
acknowledged the same before me in my State aforesaid.
Given under my hand and seal this _____ day of January 1999.
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Notary Public
(Notarial Seal)
My Commission Expires
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