EXHIBIT 4.3
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GOTHAM GOLF CORP.
(as successor to First Union Real Estate Equity and Mortgage Investments)
FIRST UNION REAL ESTATE EQUITY AND MORTGAGE INVESTMENTS
8 7/8% Senior Notes due 2003
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SECOND SUPPLEMENTAL INDENTURE
Dated as of [ ]
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X.X. Xxxxxx Trust Company, National Association
Trustee
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Supplementing the Indenture, dated as of October 1, 1993, by and between First
Union Real Estate Equity and Mortgage Investments and Society National Bank, as
supplemented by the First Supplemental Indenture, dated as of July 31, 1998, by
and between First Union Real Estate Equity and Mortgage Investments and Chase
Manhattan Trust Company, National Association
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SECOND SUPPLEMENTAL INDENTURE
This SECOND SUPPLEMENTAL INDENTURE (this "AGREEMENT"), dated as of [ ],
is made by and among First Union Real Estate Equity and Mortgage Investments,
an Ohio business trust (the "TRUST"), Gotham Golf Corp., a Delaware corporation
(the "SUCCESSOR CORPORATION"), and X.X. Xxxxxx Trust Company, National
Association (the "TRUSTEE").
WITNESSETH:
WHEREAS, the Trust and Society National Bank entered into an Indenture,
dated as of October 1, 1993, and as amended and supplemented by the First
Supplemental Indenture, dated as of July 31, 1998, by and between the Trust and
Chase Manhattan Trust Company, National Association, as trustee (hereinafter,
such Indenture and First Supplemental Indenture collectively referred to as the
"INDENTURE"), pursuant to which the Trust issued certain 8 7/8% Senior Notes
due 2003 (the "SECURITIES");
WHEREAS the Trust has agreed to merge with and into the Successor
Corporation, with the Successor Corporation as the surviving corporation,
pursuant to the terms and conditions set forth in an Agreement and Plan of
Merger and Contribution, dated as of February 13, 2002 (as amended, the "MERGER
AGREEMENT"), by and among certain parties, including the Trust and the
Successor Corporation;
WHEREAS, as part of the Merger Agreement, the Trust has agreed to assign,
and the Successor Corporation has agreed to assume, the Trust's covenants,
agreements and obligations under the Indenture;
WHEREAS, Section 901 of the Indenture provides, among other things, that the
Trust and the Indenture Trustee may enter into a supplemental indenture without
the consent of the holders of the Securities to evidence the succession of
another corporation to the Trust, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Trust;
WHEREAS, pursuant to the foregoing authority, the Trust desires to execute
and deliver this Agreement for purposes of evidencing the succession of GGC,
and the assumption by GGC, of the covenants, agreements and obligations of the
Trust in the Indenture and in the Securities contained therein; and
WHEREAS all the conditions and requirements necessary to make this
Agreement, when duly executed and delivered, a valid and binding agreement of
the Trust, the Successor Corporation and the Trustee in accordance with its
terms and for the purposes herein expressed, have been performed and fulfilled.
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NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants contained herein and in the Indenture and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the Trust, the Successor Corporation and the Trustee hereby agree as follows:
ARTICLE ONE
DEFINITIONS AND EFFECT
Section 1.1 INCORPORATION OF PREVIOUS DOCUMENTS. Unless otherwise
expressly provided, the provisions of the Indenture are incorporated herein by
reference.
Section 1.2 DEFINITIONS. Capitalized terms that are used but not defined
herein shall have the meanings ascribed to such terms in the Indenture.
Section 1.3 EFFECT OF SECOND SUPPLEMENTAL INDENTURE. From and after the
execution and delivery of this Agreement, the Indenture shall be deemed to be
modified as herein provided; however, except as modified hereby, the Indenture
shall continue in full force and effect. The Indenture as modified hereby shall
be read, taken and construed as one and the same instrument.
ARTICLE TWO
ASSUMPTION OF OBLIGATIONS
Section 2.1 EVIDENCE OF SUCCESSION. The Trust and the Trustee hereby
recognize that the Successor Corporation, as the surviving corporation of the
Merger, is the successor-in-interest to the Trust with respect to the Indenture
and the Securities contained therein.
Section 2.2 ASSUMPTION. The Successor Corporation, as the
successor-in-interest to the Trust, hereby expressly assumes all of the
respective covenants, agreements and obligations of the Trust under the
Indenture. For purposes of the Indenture, the Successor Corporation hereby
shall succeed to and be substituted for the Trust, with the same effect as if
the Successor Corporation had been named as the Trust in the Indenture, and the
Trust shall be relieved of any further obligation under the Indenture and under
the Securities.
ARTICLE THREE
ACCEPTANCE BY THE TRUSTEE
Section 3.1 ACCEPTANCE BY THE TRUSTEE. The Trustee hereby accepts the
amendments to the Indenture effected by this Agreement and agrees to execute
the trusts created by the Indenture as hereby amended, but only upon the terms
and conditions in the Indenture and in this Agreement.
ARTICLE FOUR
MISCELLANEOUS PROVISIONS
Section 4.1 FURTHER ASSURANCES. The parties hereto will execute and
deliver such further instruments and do such further acts and things as may be
reasonably required to carry out the intent and purpose of this Agreement.
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Section 4.2 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Ohio (regardless of the
laws that might otherwise govern under applicable principles of conflicts of
laws) as to all matters, including, without limitation, matters of validity,
construction, effect, performance and remedies.
Section 4.3 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which, when so executed and delivered, shall be an
original, but such counterparts shall together constitute but one and the same
instrument.
Section 4.4 EFFECT OF HEADINGS. The Article and Section headings herein
are for convenience only and shall not affect the construction hereof.
Section 4.5 SUCCESSORS AND ASSIGNS. All covenants and agreements, whether
so expressed or not, of the Trust, the Surviving Corporation and the Trustee in
this Agreement shall bind each of the respective successors and assigns of the
Trust, the Surviving Corporation and the Trustee.
Section 4.6 SEVERABILITY CLAUSE. In the event that any provision of this
Agreement is invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 4.7 CONFLICT WITH TRUST INDENTURE ACT. If any provision of this
Agreement limits, qualifies or conflicts with a provision of the Trust
Indenture Act of 1939, as amended (the "TIA"), that is required under the TIA
to be a part of and govern this Agreement, the latter provision shall control.
If any provision of this Agreement modifies or excludes any provisions of the
TIA that may be so modified or excluded, the latter provision shall be deemed
to apply to this Agreement as so modified or to be excluded, as the case may be.
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IN WITNESS WHEREOF, each of the Trust, Surviving Corporation and the Trustee
has caused this Agreement to be executed on its behalf by its duly authorized
officer, all as of the day and year first above written.
FIRST UNION REAL ESTATE EQUITY
AND MORTGAGE INVESTMENTS
By: _________________________________
Name: Xxxxxx X. Xxxxxxxxx
Title: Trustee
GOTHAM GOLF CORP.
By: _________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Chairman, Board of
Directors
X.X. XXXXXX TRUST COMPANY, NATIONAL
ASSOCIATION, AS TRUSTEE
By: _________________________________
Name:
Title:
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