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EXHIBIT 4.1
JDN REALTY CORPORATION
AND
First Union National Bank
as Trustee
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Second Supplemental Indenture
Dated as of February 5, 1998
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Supplement to Indenture dated as of July 15, 1997
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SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE, dated as of February __ 1998, between
JDN Realty Corporation, a Maryland corporation (hereinafter called the
"Company"), having its principal office at 0000 Xxxxxxxxx Xxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxx 00000, and First Union National Bank, a national banking
association organized under the laws of the United States of America (hereafter
called the "Trustee"), having a Corporate Trust Office at 11th Floor, 000
Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000-0000, as Trustee under the
Indenture (as hereinafter defined).
RECITALS
WHEREAS, the Company and the Trustee have as of July 15, 1997 entered
into an Indenture, (hereinafter called the "Indenture") providing for the
issuance by the Company from time to time of its senior debt securities
evidencing its unsecured and unsubordinated indebtedness (the "Securities");
WHEREAS, $75,000,000 aggregate principal amount of 6.80% Notes due 2004
and $85,000,000 aggregate principal amount of 6.95% Notes due 2007 have been
issued under the Indenture;
WHEREAS, the Company desires to issue a new series of senior debt
securities under the Indenture, the "Notes" (as defined below), and has duly
authorized the creation of the Notes and the execution and delivery of this
Second Supplemental Indenture to modify the Indenture and provide certain
additional provisions as hereinafter described; and
WHEREAS, the Company and the Trustee deem it advisable to enter into
this Second Supplemental Indenture for the purposes of providing for the rights,
obligations and duties of the Trustee with respect to the Notes and to set forth
certain specific provisions with respect thereto;
NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises, the Company and the Trustee
covenant and agree, for the equal and proportionate benefit of all Holders of
the Notes, as follows:
ARTICLE ONE
CREATION OF THE NOTES
Section 1.01. Pursuant to the terms hereof and the Indenture, the
Company hereby creates a series of its Notes known as the "Medium-Term Notes
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Due Nine Months or More From Date of Issue," which series of Notes shall be
deemed Securities for all purposes of the Indenture.
Section 1.02. The definitive form of the Notes shall be substantially
in the form set forth in Exhibit A or Exhibit B, as applicable, attached hereto,
which are incorporated herein and made part hereof. The Notes shall bear
interest, be payable and have such other terms as are stated in the form of
definitive Note or in the Indenture, as supplemented by this Second Supplemental
Indenture.
Section 1.03. The Notes shall not exceed $505,500,000 in aggregate
principal amount, and may, upon the execution and delivery of this Second
Supplemental Indenture or from time to time thereafter, be executed by the
Company and delivered to the Trustee for authentication, and the Trustee shall
thereupon authenticate and deliver said Notes to or upon the written order of
the Company, signed by its Chairman, President or a Vice President and by its
Treasurer or an Assistant Treasurer or its Secretary or an Assistant Secretary,
without further action by the Company.
Section 1.04. The Trustee's certificate of authentication to be borne
by the Notes shall be substantially of the tenor and purport as provided in the
Indenture.
ARTICLE TWO
APPOINTMENT OF THE TRUSTEE FOR THE NOTES
Section 2.01. Pursuant and subject to the Indenture, the Company and
the Trustee hereby constitute the Trustee as trustee to act on behalf of the
Holders of the Notes, effective upon execution and delivery of this Second
Supplemental Indenture. By execution, acknowledgment and delivery of this Second
Supplemental Indenture, the Trustee hereby accepts appointment as trustee with
respect to the Notes, and agrees to perform such trusts upon the terms and
conditions in the Indenture and in this Second Supplemental Indenture set forth.
Section 2.02. Any rights, powers, duties and obligations by any
provisions of the Indenture conferred or imposed upon the Trustee shall, insofar
as permitted by law, be conferred or imposed upon and exercised or performed by
the Trustee with respect to the Notes.
ARTICLE THREE
DEFINITIONS
Pursuant to Section 301(25) of the Indenture, so long as any of the
Notes are Outstanding, the following definitions shall be applicable to the
Notes, be included as defined as terms for all purpose of the Indenture and, to
the extent
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inconsistent with the definition of such term contained in Section 101 of the
Indenture, shall replace such definition:
"Acquired Debt" means Debt of a Person (i) existing at the time such
Person becomes a Subsidiary or (ii) assumed in connection with the acquisition
of assets from such Person, in each case, other than Debt incurred in connection
with, or in contemplation of, such Person becoming a Subsidiary or such
acquisition. Acquired Debt shall be deemed to be incurred on the date of the
related acquisition of assets from any Person or the date the acquired Person
becomes a Subsidiary.
"Annual Debt Service Charge" as of any date means the amount which is
expensed in any 12-month period for interest on Debt of the Company and its
Subsidiaries in accordance with GAAP.
"Consolidated Income Available for Debt Service" for any period means
Consolidated Net Income plus amounts which have been deducted in determining
Consolidated Net Income during such period for (i) Consolidated Interest
Expense, (ii) provision for taxes of the Company and its Subsidiaries based on
income, (iii) amortization (other than amortization of debt discount) and
depreciation, (iv) provisions for losses from sales or joint ventures, (v)
increases in deferred taxes and other non-cash items, (vi) charges resulting
from a change in accounting principles, and (vii) charges for early
extinguishment of debt, and less amounts which have been added in determining
Consolidated Net Income during such period for (a) provisions for gains from
sales or joint ventures, and (b) decreases in deferred taxes and other non-cash
items.
"Consolidated Interest Expense" means, for any period, and without
duplication, all interest (including the interest component of rentals on
capitalized leases, letter of credit fees, commitment fees and other like
financial charges) and all amortization of debt discount on all Debt (including,
without limitation, payment-in-kind, zero coupon and other like securities) of
the Company and its Subsidiaries, but excluding legal fees, title insurance
charges and other out-of-pocket fees and expenses incurred in connection with
the issuance of Debt, all determined in accordance with GAAP.
"Consolidated Net Income" for any period means the amount of net income
(or loss) of the Company and its Subsidiaries for such period determined in
accordance with GAAP after eliminating intercompany accounts and transactions.
"Debt" of the Company or any of its Subsidiaries means any indebtedness
of the Company or any of its Subsidiaries, whether or not contingent, and
without duplication, in respect of (i) borrowed money evidenced by bonds, notes,
debentures or similar instruments, (ii) indebtedness secured by any mortgage,
pledge, lien, charge, encumbrance or any security interest existing on property
owned by the Company or any of its Subsidiaries, (iii) the reimbursement
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obligations, contingent or otherwise, in connection with any letters of credit
actually issued or amounts representing the balance deferred and unpaid of the
purchase price of any property except any such balance that constitutes an
accrued expense or trade payable or (iv) any lease of property by the Company or
any of its Subsidiaries as lessee which is reflected in the balance sheet of the
Company or any of its Subsidiaries as a capitalized lease in accordance with
GAAP, in the case of items of indebtedness under (i) through (iii) above to the
extent that any such items (other than letters of credit) would appear as a
liability on the balance sheet of the Company or any of its Subsidiaries in
accordance with GAAP, and also includes, to the extent not otherwise included,
any obligation by the Company or any Subsidiary to be liable for, or to pay, as
obligor, guarantor or otherwise (other than for purposes of collection in the
ordinary course of business), indebtedness of another person (other than the
Company or any Subsidiary) (it being understood that Debt shall be deemed to be
incurred by the Company or any of its Subsidiaries whenever the Company or any
of its Subsidiaries shall create, assume, guarantee or otherwise become liable
in respect thereof). As used herein "intercompany Debt" shall the meaning
ascribed hereto in section 5.01.
"Notes" means the Company's Medium-Term Notes Due Nine Months or More
From Date of Issue.
"Recourse Indebtedness" means Debt other than Secured Debt as to which
the liability of the obligor thereon is limited to its interest in the
collateral securing such Secured Debt, provided that no such Secured Debt shall
constitute Recourse Indebtedness by reason of provisions therein for imposition
of full recourse liability on the obligor for certain wrongful acts,
environmental liabilities, or other customary exclusions from the scope of
so-called "non-recourse" provisions.
"Secured Debt" means Debt secured by any mortgage, trust deed, deed of
trust, deed to secure debt, security agreement, pledge, conditional sale or
other title retention agreement, capitalized lease, or other like agreement
granting or conveying security title to or a security interest in real property
or other tangible assets, other than those relating to intercompany Debt. For
purposes hereof, such Debt shall become Secured Debt at the time it first
becomes secured by execution of any of the documents, instruments or agreements
described in the immediately preceding sentence.
"Senior Executive Group" shall mean, collectively, those individuals
holding the offices of Chairman, President, Chief Executive Officer, Chief
Financial Officer or any Vice President of the Company.
"Subsidiary" means (i) any corporation or other entity the majority of
the shares of the non-voting capital stock or other equivalent ownership
interests of which (except directors' qualifying shares) are at the time
directly or indirectly owned by the Company, and the majority of the shares of
the voting capital stock or
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other equivalent ownership interests of which (except directors' qualifying
shares) are at the time directly or indirectly owned by the Company, any other
Subsidiary, and/or one or more individuals of the Senior Executive Group (or, in
the event of death or disability of any of such individuals, his/her respective
legal representative(s)), or such individuals' successors in office as an
officer of the Company or the Secretary of such Subsidiary, and (ii) any other
entity (other than the Company) the accounts of which are consolidated with the
accounts of the Company or any Subsidiary.
"Total Assets" as of any date means the sum of (i) Undepreciated Real
Estate Assets and (ii) all other assets of the Company and its Subsidiaries
determined in accordance with GAAP (but excluding intangibles and accounts
receivable) after eliminating intercompany accounts and transactions.
"Total Unencumbered Assets" as of any date means the sum of (i) those
Undepreciated Real Estate Assets not securing any portion of Secured Debt and
(ii) all other assets of the Company and its Subsidiaries not securing any
portion of Secured Debt determined in accordance with GAAP (but excluding
accounts receivable and intangibles) after eliminating intercompany accounts and
transactions.
"Undepreciated Real Estate Assets" as of any date means the cost
(original cost plus capital improvements) of real estate assets of the Company
and its Subsidiaries on such date, before depreciation and amortization,
determined in accordance with GAAP.
"Unsecured Debt" means Debt of the Company or any Subsidiary that is
not Secured Debt, excluding intercompany Debt.
ARTICLE FOUR
EVENTS OF DEFAULT
Pursuant to Section 501 of the Indenture, so long as any of the Notes
are Outstanding, the following event shall replace Section 501(5) of the
Indenture as an Event of Default with respect to any series of the Notes:
A default under any evidence of Recourse Indebtedness of the Company,
or under any bond, debenture, note, mortgage, indenture or other instrument of
the Company (including a default with respect to Securities of any series other
than such series) under which there may be issued or by which there may be
secured any Recourse Indebtedness of the Company (or by any Subsidiary, the
repayment of which the Company has guaranteed or for which the Company is
directly responsible or liable as obligor or guarantor), whether such
indebtedness now exists or shall hereafter be created, which default shall
constitute a failure to
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pay an aggregate principal amount exceeding $5,000,000 of such indebtedness when
due and payable after the expiration of any applicable grace period with respect
thereto and shall have resulted in such indebtedness, in an aggregate principal
amount exceeding $5,000,000, becoming or being declared due and payable prior to
the date on which it would otherwise have become due or payable, without such
indebtedness having been discharged, or such acceleration having being rescinded
or annulled, within a period of 10 days after there shall have been given, by
registered or certified mail, to the Company by the Trustee, or to the Company
and the Trustee by the Holders of at least 10% in principal amount of the
Outstanding Securities of such series, a written notice specifying such default
and requiring the Company to cause such indebtedness to be discharged or cause
such acceleration to be rescinded or annulled and stating that such notice is a
"Notice of Default" hereunder.
ARTICLE FIVE
COVENANTS OF THE COMPANY
Pursuant to Section 301(15) of the Indenture, so long as any of the
Notes are Outstanding, the Company covenants and agrees as follows:
Section 5.01. Limitation on Incurrence of Total Debt. The Company will
not, and will not permit a Subsidiary to, incur any Debt, other than
intercompany Debt (representing Debt to which the only parties are the Company
and any of its Subsidiaries, but only so long as such Debt is held solely by the
Company and any Subsidiary) if, after giving effect to the incurrence of such
additional Debt, the aggregate principal amount of all outstanding Debt of the
Company and its Subsidiaries determined in accordance with GAAP is greater than
60% of (i) Total Assets of the Company and its Subsidiaries as of the end of the
fiscal 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 Securities
and Exchange Commission (or, if such filing is not permitted under the
Securities and Exchange Act of 1934, with the Trustee) prior to the incurrence
of such additional Debt plus (ii) the increase, if any, in the Total Assets of
the Company and its Subsidiaries from the end of such quarter, including,
without limitation, any increase in Total Assets resulting from the incurrence
of such additional Debt minus (iii) the decrease, if any, in the Total Assets of
the Company and its Subsidiaries from the end of such quarter (the Total Assets
of the Company and its Subsidiaries as so adjusted is referred to as the
"Adjusted Total Assets").
Section 5.02. Limitation on Incurrence of Secured Debt. The Company
will not, and will not permit any Subsidiary to, incur any Secured Debt of the
Company or any Subsidiary other than intercompany Debt, if, after giving effect
to the incurrence of such additional Secured Debt, the aggregate principal
amount of
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all outstanding Secured Debt of the Company and its Subsidiaries is greater than
40% of the Adjusted Total Assets of the Company and its Subsidiaries.
Section 5.03. Debt Service Coverage. The Company will not, and will not
permit any Subsidiary to, incur any Debt other than intercompany Debt if the
ratio of Consolidated Income Available for Debt Service to the Annual Debt
Service Charge for the period consisting of the four consecutive fiscal quarters
(for which financial statements are available) most recently ended prior to the
date on which such additional Debt is to be incurred shall have been less than
1.5 to 1, on a pro forma basis after giving effect to the incurrence of such
Debt and to the application of the proceeds thereof, and calculated on the
assumption that (i) such Debt and any other Debt incurred by the Company or its
Subsidiaries since the first day of such four-quarter period and the application
of the proceeds thereof, including to refinance other Debt, had occurred at the
beginning of such period, (ii) the repayment or retirement of any other Debt by
the Company or its Subsidiaries since the first day of such four-quarter period
had been repaid or retired at the beginning of such period (except that, in
making such computation, the amount of Debt under any revolving credit facility
shall be computed based upon the average daily balance of such Debt during such
period), (iii) in the case of Acquired Debt or Debt in connection with any
acquisition since the first day of such four-quarter period, the related
acquisition had occurred as of the first day of such period with the appropriate
adjustments with respect to the acquisition being included in the pro forma
calculation and (iv) in the case of any increase or decrease in Total Assets of
the Company and its Subsidiaries, or any other acquisition or disposition by the
Company or any Subsidiary of any asset or group of assets, since the first day
of such four-quarter period, including, without limitation, by merger, stock
purchase or sale, or asset purchase or sale, such increase, decrease or other
acquisition or disposition or any related repayment of Debt had occurred as of
the first day of such period with the appropriate adjustments to revenues,
expenses and Debt levels with respect to such increase, decrease or other
acquisition or disposition being included in such pro forma calculation.
Section 5.04. Maintenance of Total Unencumbered Assets. The Company and
its Subsidiaries are required to maintain Total Unencumbered Assets of not less
than 150% of the aggregate outstanding principal amount of the Unsecured Debt of
the Company and its Subsidiaries.
ARTICLE SIX
MISCELLANEOUS
Section 6.01. Each and every term and condition contained in the
Indenture shall apply to this Second Supplemental Indenture with the same force
and effect as if the same were herein set forth in full, with such omissions,
variations and modifications thereof as may be appropriate to make the same
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conform to this Second Supplemental Indenture. As supplemented by this Second
Supplemental Indenture, the Indenture shall be read, taken and construed as one
and the same instrument; provided, however, that the rights, duties and
obligations of the Trustee in this Second Supplemental Indenture shall be
limited to those matters expressly relating to the Notes.
Section 6.02. Nothing contained in this Second Supplemental Indenture
shall or shall be construed to confer upon any person other than a Holder the
Notes, the Company and the Trustee any right or interest to avail itself or
himself, as the case may be, of any benefit under any provision of the Indenture
or this Second Supplemental Indenture.
Section 6.03. All capitalized terms which are used herein and not
otherwise defined herein are defined in the Indenture and are used herein with
the same meanings as Indenture.
Section 6.04. This Second Supplemental Indenture shall be effective as
of the date first above written and upon the execution and delivery hereof by
each of the parties hereto.
Section 6.05. This Second Supplemental Indenture shall be governed by,
and construed in accordance with, the laws of the State of New York.
Section 6.06. This Second Supplemental Indenture 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.
Section 6.07. This Second Supplemental Indenture shall cease to be of
further effect upon compliance with Section 401 of the Indenture with respect to
the Notes created hereby.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed by their respective officers hereunto
duly authorized, all as of the day and year first above written.
JDN REALTY CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx Dated: February 5, 1998
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Name: Xxxxxxx X. Xxxxxx
Title: Chief Financial Officer
FIRST UNION NATIONAL BANK
as Trustee
By: /s/ R. Xxxxxxx Xxxxxx Dated: February 5, 1998
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Name: R. Xxxxxxx Xxxxxx
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Title: Vice President
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Attest:
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ACKNOWLEDGMENT
STATE OF
) ss:
COUNTY OF
On the 4th day of February, 1998, before me personally came
Xxxxxxx X. Xxxxxx, to me known, who, being by me duly sworn, did depose and say
that he is the CFO of JDN REALTY CORPORATION, one of the parties described in
and which executed the foregoing instrument, and that he signed his name thereto
by authority of the Board of Directors.
[Notarial Seal]
/s/ Xxxxxxxx X. Xxxx
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Notary Public
Commission Expires
STATE OF GEORGIA
) ss:
COUNTY OF GWINNETT
On the 4th day of February, 1998, before me personally came
R. Xxxxxxx Xxxxxx, to me known, who, being by me duly sworn, did depose and say
that he/she is a Vice President of First Union National Bank, one of the parties
described in and which executed the foregoing instrument, and that he/she signed
his/her name thereto by authority of the Board of Directors.
[Notarial Seal]
/s/ Xxxxx X. Xxxxxxx
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Notary Public
Commission Expires
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