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Exhibit 10.2
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF AUGUST 5, 1999
AMONG
NEW PLAN REALTY TRUST,
NEW PLAN EXCEL REALTY TRUST, INC.
AND
STATE STREET BANK AND TRUST COMPANY, AS TRUSTEE
SENIOR DEBT SECURITIES
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FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE is entered into as of August
5, 1999 by and among New Plan Realty Trust, a Massachusetts business trust
("NPRT" or, before the Merger Date, the "Company"), as original issuer, New Plan
Excel Realty Trust, Inc., a Maryland corporation ("NPXL" or, beginning on the
Merger Date, the "Company"), and State Street Bank and Trust Company, a
Massachusetts trust company, as trustee (the "Trustee").
WHEREAS, NPRT and The First National Bank of Boston ("FNBB")
entered into that certain Indenture dated as of March 29, 1995 (the "Original
Indenture"), relating to the Company's senior debt securities;
WHEREAS, the Trustee has succeeded to all or substantially all
of the corporate trust business of FNBB and thereby is the successor of FNBB
under the Original Indenture;
WHEREAS, since September 28, 1998, NPRT has been a wholly
owned subsidiary of the NPXL;
WHEREAS, (i) NPRT intends to file a Certificate of Amendment
of Amended and Restated Declaration of Trust (the "Declaration of Trust
Amendments") to provide that the assets and liabilities of NPRT will be held in
two "subtrusts," one of which will hold real estate assets (and attendant
liabilities) located in Pennsylvania, Missouri, Illinois and South Carolina (the
"Business Subtrust"), and the other of which will hold all of the other assets
and liabilities of NPRT, including NPRT's obligations under the Original
Indenture (the "Merger Subtrust"), and (ii) immediately following the
effectiveness of the Declaration of Trust Amendments, the Merger Subtrust will
merge with and into NPXL, with NPXL being the surviving entity (the "Merger,"
and the effective time and date of the Merger being referred to herein as the
"Merger Date");
WHEREAS, effective as of the Merger Date, NPXL will assume the
due and punctual payment of the principal of (and premium, if any) and any
interest (including all Additional Amounts, if any, payable pursuant to Section
1011 of the Indenture) on all of the Securities, according to their tenor, and
the due and punctual performance and observance of all of the covenants and
conditions of the Indenture to be performed by the Company;
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WHEREAS, pursuant to Section 901(1) of the Indenture, NPRT,
NPXL and the Trustee may enter into this First Supplemental Indenture without
the consent of any Holders;
WHEREAS, the execution and delivery of this First Supplemental
Indenture has been duly authorized by all necessary corporate or trust action,
as applicable, on the part of NPRT, NPXL and the Trustee;
NOW, THEREFORE, NPRT, NPXL and the Trustee agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. For purposes of this First
Supplemental Indenture:
(a) "Indenture" means the Original Indenture, as amended by
this First Supplemental Indenture, and as otherwise supplemented or amended from
time to time by one or more indentures supplemental thereto or hereto entered
into pursuant to the applicable provisions of the Indenture.
(b) Capitalized terms not expressly defined in this First
Supplemental Indenture shall have the meanings ascribed to them in the Original
Indenture.
ARTICLE II
ASSUMPTION AND DISCHARGE
Section 2.01. Assumption by NPXL; Discharge of NPRT. Effective
as of the Merger Date, (i) NPXL hereby assumes the due and punctual payment of
the principal of (and premium, if any) and any interest (including all
Additional Amounts, if any, payable pursuant to Section 1011 of the Indenture)
on all of the Securities, according to their tenor, and the due and punctual
performance and observance of all of the covenants and conditions of the
Indenture to be performed by the Company, and (ii) with regard to the Indenture,
NPXL shall succeed to and be substituted for NPRT, with the same effect as if
NPXL had been named in the Indenture as the party of the first part, and NPRT
thereupon shall be relieved of any further liability, obligation or covenant
under the Indenture or upon the Securities and coupons. Following the execution
and delivery of this First Supplemental Indenture, the parties hereto agree that
all references to the "Company" in the Indenture and the Securities shall be
deemed references to NPXL.
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Section 2.02. Trustee's Acceptance. The Trustee hereby accepts
this First Supplemental Indenture and agrees to perform the same under the terms
and conditions set forth in the Indenture.
ARTICLE III
MISCELLANEOUS
Section 3.01. Relation to Original Indenture. This First
Supplemental Indenture supplements the Original Indenture and shall be a part
and subject to all the terms thereof. Except as supplemented hereby, the
Original Indenture and the Securities issued thereunder shall continue in full
force and effect.
Section 3.02. Concerning the Trustee. The Trustee shall not be
responsible for any recital herein (other than the second and seventh recitals
as they appear and 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 First Supplemental Indenture. The Trustee makes no representations as to
the validity or sufficiency of this First Supplemental Indenture.
Section 3.03. Effect of Headings. The Article and Section
headings herein are for convenience of reference only and shall not affect the
construction hereof.
Section 3.04. Counterparts. This First 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 3.05. Governing Law. THIS FIRST 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 3.06. Notices. Effective as of the Merger Date, the
addresses for notices set forth in the Original Indenture shall be amended,
without further action, to read as follows:
(a) if to the Company:
New Plan Excel Realty Trust, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: General Counsel
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(b) if to the Trustee:
State Street Bank and Trust Company
Corporate Trust Department
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
IN WITNESS WHEREOF, the parties hereto have caused this First
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.
NEW PLAN EXCEL REALTY TRUST, INC.
By: /s/ XXXX XXXXXXXXX
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Name: Xxxx Xxxxxxxxx
Title: Senior Vice President
[SEAL]
Attest:
/s/ XXXXXX X. XXXXXX
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Title: Secretary
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
Title: Vice President
[SEAL]
Attest:
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Title: Vice President
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