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EXHIBIT 99.17.18
NINTH SUPPLEMENTAL INDENTURE
NINTH SUPPLEMENTAL INDENTURE, dated as of September 29, 1997 (this
"Ninth Supplemental Indenture"), among Xxxxxxx Properties, Inc., a corporation
organized under the laws of Maryland (the "General Partner"), Xxxxxxx
Properties, L.P., a limited partnership organized under the laws of California
(the "Issuer"), First Trust of California, National Association, as Trustee (the
"Trustee") and State Street Bank and Trust Company ("Xxxxx Xxxxxx.").
W I T N E S S E T H:
WHEREAS, the Issuer, the General Partner and State Street executed and
delivered an Indenture, dated as of December 6, 1995 (as supplemented hereby,
the "Indenture"), to provide for the issuance by the Issuer from time to time of
debt securities evidencing its unsecured indebtedness;
WHEREAS, pursuant to Section 609(b) of the Indenture, the Issuer and the
General Partner desire to appoint the Trustee as trustee with respect to the
series of securities established by this Supplemental Indenture and future
series of securities under the Indenture;
WHEREAS, the Issuer and the General Partner desire that State Street
remain trustee of all former series of securities issued under the Indenture;
WHEREAS, pursuant to Board Resolution, the Issuer has authorized the
issuance of $150,000,000 of its 7.50% Debentures Due October 1, 2027 (the
"Notes");
WHEREAS, the Issuer desires to establish the terms of the Notes in
accordance with Section 301 of the Indenture and to establish the form of the
Notes in accordance with Section 201 of the Indenture.
ARTICLE 1
APPOINTMENT OF SUCCESSOR TRUSTEE
SECTION 101. APPOINTMENT OF SUCCESSOR TRUSTEE. Pursuant to Section
609(b) of the Indenture, the Issuer and the General Partner hereby appoint the
Trustee as trustee, with all rights, powers, trusts and duties provided for in
the Indenture, for the series of securities established by this Supplemental
Indenture and, until the Issuer and the General Partner appoint another trustee
pursuant to the applicable provisions of the Indenture, for all future series of
securities issued under the Indenture, and the Trustee hereby accepts such
appointment.
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SECTION 102. OUTSTANDING SECURITIES. State Street shall remain trustee
for securities outstanding on the date hereof and not issued pursuant to this
Supplemental Indenture and shall retain all rights, powers, trusts and duties
with respect to such securities.
SECTION 103. NO CHANGES IN DUTIES OF TRUSTEE. Except as otherwise
provided in herein, there shall be no change, modification or amendment of the
powers, rights and duties of any trustee under the Indenture.
SECTION 104. DESIGNATION OF ADDITIONAL AGENCY FOR PAYMENT. Pursuant to
Section 1002 of the Indenture, the Issuer hereby appoints the corporate trust
office of the Trustee, which, as of the date hereof, is located in care of First
Trust National Association, 000 X. Xxxxx Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000 (the
"Corporate Trust Office"), as its agent to receive presentations and surrenders,
and the corporate trust office of the Trustee at Xxx Xxxxxxxxxx Xxxxxx, Xxxxx
000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, as its agent to receive notices and
demands, of securities issued under the Indenture from the date hereof and
hereafter.
ARTICLE 2
TERMS
SECTION 201. TERMS OF NOTES. The following terms relating to the Notes
are hereby established:
(1) The Notes shall constitute a series of Securities having the
title "7.50% Debentures Due October 1, 2027."
(2) The aggregate principal amount of the Notes that may be
authenticated and delivered under the Indenture (except for Notes
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Notes pursuant to Sections 304, 305,
306, 906, 1107 or 1305 of the Indenture) shall be up to $150,000,000.
(3) The entire outstanding principal of the Notes shall be
payable on October 1, 2027 (the "Stated Maturity Date").
(4) The rate at which the Notes shall bear interest shall be
7.50%; the date from which interest shall accrue shall be September 29,
1997; the Interest Payment Dates for the Notes on which interest will be
payable shall be October 1 and April 1 in each year, beginning April 1,
1998; the Regular Record Dates for the interest payable on the Notes on
any Interest Payment Date shall be the 15th calendar day preceding the
applicable Interest Payment Date; and the basis upon which interest
shall be calculated shall be that of a 360-day year consisting of twelve
30-day months.
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(5) The Place of Payment where the principal of and interest on
the Notes shall be payable and Notes may be surrendered for the
registration of transfer or exchange shall be the Corporate Trust Office
of the Trustee in St. Xxxx, Minnesota. The place where notices or
demands to or upon the Issuer in respect of the Notes and the Indenture
may be served shall be the corporate trust office of the Trustee at Xxx
Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000.
(6) (A) The Notes may be redeemed at any time at the option of
the Issuer, in whole or from time to time in part, at a redemption price
equal to the sum of (i) the principal amount of the Notes (or portion
thereof) being redeemed plus accrued interest thereon to the redemption
date and (ii) the Make-Whole Amount (as defined below), if any, with
respect to such Notes (or portion thereof) (the "Redemption Price").
If notice has been given as provided in the Indenture
and funds for the redemption of any Notes (or any portion thereof)
called for redemption shall have been made available on the redemption
date referred to in such notice, such Notes (or any portion thereof)
will cease to bear interest on the date fixed for such redemption
specified in such notice and the only right of the Holders of the Notes
will be to receive payment of the Redemption Price, with respect to such
Notes or portion thereof so redeemed.
Notice of any optional redemption of any Notes (or any
portion thereof) will be given to Holders at their addresses, as shown
in the security register for the Notes, not more than 60 nor less than
30 days prior to the date fixed for redemption. The notice of redemption
will specify, among other items, the Redemption Price and the principal
amount of the Notes held by such Holder to be redeemed. On the third
Business Day preceding the date notice of redemption is given, the
Company will notify the Trustee of the Redemption Price and the Trustee
may rely and shall be fully protected in acting upon the determination
of the Company as to such Redemption Price.
The Issuer will notify the Trustee in writing at least
45 days prior to giving notice of redemption (or such shorter period as
is satisfactory to the Trustee in its sole discretion) of the aggregate
principal amount of Notes to be redeemed and their redemption date. If
less than all the Notes are to be redeemed at the option of the Issuer,
the Trustee shall select by lot, the Notes to be redeemed in whole or in
part.
In the event of redemption of the Notes in part only, a
new Note for the amount of the unredeemed portion thereof shall be
issued in the name of the Holder thereto, upon cancellation thereof.
(B) As used herein:
"Make-Whole Amount" means, in connection with any
optional redemption or accelerated payment of any Notes, the excess, if
any, of (i) the aggregate present value as of the date of such
redemption or accelerated payment of each dollar of
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principal being redeemed or paid and the amount of interest (exclusive
of interest accrued to the date of redemption or accelerated payment)
that would have been payable in respect of each such dollar if such
redemption or accelerated payment had not been made, determined by
discounting, on a semi-annual basis, such principal and interest at the
Reinvestment Rate (determined on the third Business Day preceding the
date such notice of redemption is given or declaration of acceleration
is made) from the respective dates on which such principal and interest
would have been payable if such redemption or accelerated payment had
not been made, over (ii) the aggregate principal amount of the Notes
being redeemed or paid.
"Reinvestment Rate" means 0.25% plus the arithmetic mean
of the yields under the respective heading "Week Ending" published in
the most recent Statistical Release under the caption "Treasury Constant
Maturities" for the maturity (rounded to the nearest month)
corresponding to the remaining life to maturity, as of the payment date
of the principal being redeemed or paid. If no maturity exactly
corresponds to such maturity, yields for the two published maturities
most closely corresponding to such maturity shall be calculated pursuant
to the immediately preceding sentence and the Reinvestment Rate shall be
interpolated or extrapolated from such yields on a straight-line basis,
rounding in each of such relevant periods to the nearest month. For the
purpose of calculating the Reinvestment Rate, the most recent
Statistical Release published prior to the date of determination of the
Make-Whole Amount shall be used.
"Statistical Release" means the statistical release
designated "H.15(519)" or any successor publication which is published
weekly by the Federal Reserve System and which establishes yields on
actively traded United States government securities adjusted to constant
maturities, or, if such statistical release is not published at the time
of any determination under the Indenture, then such other reasonably
comparable index which shall be designated by the Issuer.
(7) The Notes shall not be redeemable at the option of any
Holder thereof, upon the occurrence of any particular circumstances or
otherwise. The Notes will not have the benefit of any sinking fund.
(8) The Notes shall be issuable in denominations of $1,000 and
any integral multiple thereof.
(9) The Trustee shall also be the Security Registrar and Paying
Agent for the Notes.
(10) The entire outstanding principal amount plus the Make-Whole
Amount of the Notes shall be payable upon declaration of acceleration of
the maturity thereof pursuant to Section 502 of the Indenture.
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(11) Payments of the principal of and interest on the Notes
shall be made in U.S. Dollars, and the Notes shall be denominated in
U.S. Dollars.
(12) The Notes will be payable on the Stated Maturity Date in an
amount equal to the principal amount thereof plus any unpaid interest
accrued to the Stated Maturity Date.
(13) The Holders of the Notes shall have no special rights in
addition to those provided in the Indenture upon the occurrence of any
particular events.
(14) (A) There shall be no deletions from, modifications of or
additions to the Events of Default with respect to the Notes set forth
in the Indenture.
(B) There shall be the following additions to the
covenants set forth in the Indenture with respect to the Notes, which
shall be effective only for so long as any of the Notes are Outstanding:
Limitations On Incurrence of Debt. The Issuer will not,
and will not permit any Subsidiary to, incur any Debt (as
defined below), other than inter-company debt representing Debt
to which the only parties are Xxxxxxx Properties, Inc., a
Maryland corporation (the "General Partner"), the Issuer and any
of their Subsidiaries (but only so long as such Debt is held
solely by any of the General Partner, the Issuer and any
Subsidiary) that is subordinate in right of payment to the Notes
if, immediately after giving effect to the incurrence of such
additional Debt, the aggregate principal amount of all
outstanding Debt of the Issuer and its Subsidiaries on a
consolidated basis is greater than 60% of the sum of (i) Total
Assets (as defined below) as of the end of the calendar quarter
covered in the Issuer's Annual Report on Form 10-K or Quarterly
Report on Form 10-Q, as the case may be, most recently filed
with the Trustee (or such reports of the General Partner if
filed by the Issuer with the Trustee in lieu of filing its own
reports) prior to the incurrence of such additional Debt and
(ii) the increase in Total Assets from the end of such quarter
including, without limitation, any increase in Total Assets
resulting from the incurrence of such additional Debt (such
increase, together with the Total Assets, is referred to as
"Adjusted Total Assets").
In addition to the foregoing limitation on the
incurrence of Debt, the Issuer will not, and will not permit any
Subsidiary to, incur any Debt if the ratio of Consolidated
Income Available for Debt Service to the Annual Service Charge
(in each case as defined below) for the four consecutive fiscal
quarters 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 therefrom,
and calculated on the assumption that (i) such Debt and any
other Debt incurred by the Issuer or its Subsidiaries since the
first day of such four-quarter period and the application of
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the proceeds therefrom, including to refinance other Debt, had
occurred at the beginning of such period, (ii) the repayment or
retirement of any other Debt by the Issuer or its Subsidiaries
since the first day of such four-quarter period had been
incurred, 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) the income earned on any increase in Adjusted Total Assets
since the end of such four-quarter period had been earned, on an
annualized basis, during such period, and (iv) in the case of
any acquisition or disposition by the Issuer 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
acquisition or disposition or any related repayment of Debt had
occurred as of the first day of such period with the appropriate
adjustments with respect to such acquisition or disposition
being included in such pro forma calculation.
In addition to the foregoing limitations on the
incurrence of Debt, the Issuer will not, and will not permit any
Subsidiary to, incur any Debt secured by any mortgage, lien,
charge, pledge, encumbrance or security interest of any kind
upon any of the property of the Issuer or any Subsidiary
("Secured Debt"), whether owned at the date of the Indenture or
thereafter acquired, if, immediately after giving effect to the
incurrence of such additional Secured Debt, the aggregate
principal amount of all outstanding Secured Debt is greater than
40% of Adjusted Total Assets.
For purposes of the foregoing provisions regarding the
limitation on the incurrence of Debt, Debt shall be deemed to be
"incurred" by the Issuer or a Subsidiary whenever the Issuer and
its Subsidiary shall create, assume, guarantee or otherwise
become liable in respect thereof.
Maintenance of Total Unencumbered Assets. The Issuer is
required to maintain Total Unencumbered Assets of not less than
165% of the aggregate outstanding principal amount of all
outstanding Unsecured Debt.
As used herein:
"Annual Service Charge" as of any date means the amount
which is expensed in any 12-month period for interest on Debt of
the Issuer and its Subsidiaries.
"Consolidated Income Available For Debt Service" for any
period means Consolidated Net Income plus amounts which have
been deducted for (a) interest on Debt of the Issuer and its
Subsidiaries, (b) provision for taxes of the Issuer and its
Subsidiaries based on income, (c) amortization of Debt discount,
(d) provisions
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for gains and losses on properties, (e) depreciation and
amortization, (f) the effect of any noncash charge resulting
from a change in accounting principles in determining
Consolidated Net Income for such period and (g) amortization of
deferred charges.
"Consolidated Net Income" for any period means the
amount of consolidated net income (or loss) of the Issuer and
its Subsidiaries for such period determined on a consolidated
basis in accordance with generally accepted accounting
principles.
"Debt" of the Issuer or any Subsidiary means any
indebtedness of the Issuer or such Subsidiary, as applicable,
whether or not contingent, 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 Issuer or such Subsidiary, (iii) the reimbursement
obligations, contingent or otherwise, in connection with any
letters of credit actually issued or amounts representing the
balance that constitutes an accrued expense or trade payable or
(iv) any lease of property by the Issuer or such Subsidiary as
lessee which is reflected in the Issuer's consolidated balance
sheet as a capitalized lease in accordance with generally
accepted accounting principles, 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 Issuer's consolidated balance sheet in
accordance with generally accepted accounting principles, and
also includes, to the extent not otherwise included, any
obligation by the Issuer or such 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 Issuer or any
Subsidiary).
"Subsidiary" means a corporation, partnership or limited
liability company, a majority of the outstanding voting stock,
partnership interests or membership interests, as the case may
be, of which is owned or controlled, directly or indirectly, by
the Issuer or by one or more other Subsidiaries of the Issuer.
For the purposes of this definition, "voting stock" means stock
having the voting power for the election of directors, general
partners, managers or trustees, as the case may be, whether at
all times or only so long as no senior class of stock has such
voting power by reason of any contingency.
"Total Assets" as of any date means the sum of (i)
Undepreciated Real Estate Assets and (ii) all other assets of
the Issuer and its Subsidiaries on a consolidated basis
determined in accordance with generally accepted accounting
principles (but excluding intangibles and accounts receivable).
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"Total Unencumbered Assets" as of any date means the sum
of (i) those Undepreciated Real Estate Assets which have not
been pledged, mortgaged or otherwise encumbered by the owner
thereof to secure Debt, excluding infrastructure assessment
bonds, and (ii) all other assets of the Issuer and its
Subsidiaries determined in accordance with generally accepted
accounting principles (but excluding intangibles and accounts
receivable) which have not been pledged, mortgaged or otherwise
encumbered by the owner thereof to secure Debt.
"Undepreciated Real Estate Assets" as of any date means
the cost (original cost plus capital improvements) of real
estate assets of the Issuer and its Subsidiaries on such date,
before depreciation and amortization, determined on a
consolidated basis in accordance with generally accepted
accounting principles.
"Unsecured Debt" as of any date means Debt which is not
secured by any mortgage, lien, charge, pledge, encumbrance or
security interest of any kind upon any of the properties of the
Issuer or any Subsidiary.
(C) The Trustee shall not be obligated to monitor or
confirm, on a continuing basis or otherwise, the Issuer's compliance
with the covenants contained in this subsection or with respect to
reports or other documents filed under the Indenture; provided, however,
that nothing herein shall relieve the Trustee of any obligations to
monitor the Issuer's timely delivery of all reports and certificates
required under Sections 703 and 1005 of the Indenture and to fulfill its
obligations under Article Six of the Indenture.
(15) The Notes shall be issuable only as Registered Securities
in permanent global form (without coupons). Beneficial owners of
interests in the permanent global Notes may exchange such interests for
Notes of like tenor or any authorized form and denomination only in the
manner provided in Section 305 of the Indenture. DTC shall be the
depository with respect to the permanent global Note.
(16) The Notes shall not be issuable as Bearer Securities.
(17) Interest on any Note shall be payable only to the Person in
whose name that Note (or one or more predecessor Notes thereof) is
registered at the close of business on the Regular Record Date for such
interest.
(18) Sections 1402 and 1403 of the Indenture shall be applicable
to the Notes.
(19) The Notes shall not be issuable in definitive form except
under the circumstances described in Section 305 of the Indenture.
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(20) Articles Sixteen and Seventeen of the Indenture shall not
be applicable to the Notes.
(21) The Issuer shall not pay Additional Amounts with respect to
the Notes as contemplated by Section 1009 of the Indenture.
(22) The Notes shall not be subordinated to any other debt of
the Issuer, and shall constitute senior unsecured obligations of the
Issuer.
SECTION 202. FORM OF NOTE. The form of the Note is attached hereto as
Exhibit A.
ARTICLE III
MISCELLANEOUS
SECTION 301. DEFINITIONS. Capitalized terms used but not defined in this
Ninth Supplemental Indenture shall have the meanings ascribed thereto in the
Indenture.
SECTION 302. CONFIRMATION OF INDENTURE. The Indenture, as heretofore
supplemented and amended by this Ninth Supplemental Indenture, is in all
respects ratified and confirmed, and the Indenture, this Ninth Supplemental
Indenture and all indentures supplemental thereto shall be read, taken and
construed as one and the same instrument.
SECTION 303. CONCERNING THE TRUSTEE. The Trustee assumes no duties,
responsibilities or liabilities by reason of this Ninth Supplemental Indenture
other than as set forth in the Indenture and, in carrying out its
responsibilities hereunder, shall have all of the rights, protections and
immunities which it possesses under the Indenture.
SECTION 304. GOVERNING LAW. This Ninth Supplemental Indenture, the
Indenture and the Securities shall be governed by and construed in accordance
with the law of the State of New York.
SECTION 305. SEPARABILITY. In case any provision in this Ninth
Supplemental Indenture shall for any reason be held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 306. COUNTERPARTS. This Ninth Supplemental Indenture may be
executed in any number of counterparts each of which shall be an original, but
such counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Ninth
Supplemental Indenture to be duly executed, and the corporate seal of the
General Partner to be hereunto affixed and attested, as of the day and year
first above written.
XXXXXXX PROPERTIES, L.P.
By: Xxxxxxx Properties, Inc., as General Partner
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
and Chief Financial Officer
(seal)
Attest:
By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Assistant Secretary
XXXXXXX PROPERTIES, INC.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
and Chief Financial Officer
(seal)
Attest:
By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Assistant Secretary
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FIRST TRUST OF CALIFORNIA,
NATIONAL ASSOCIATION, as Trustee
By: /s/ Xxxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
Attest:
By: /s/ Xxxxxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Assistant Vice President
STATE STREET BANK AND TRUST
COMPANY
By: /s/ Xxxx X. Xxxxx
--------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
Attest:
By: /s/ Carolina X. Xxxxxxxx
--------------------------------
Name: Carolina X. Xxxxxxxx
Title: Assistant Vice President
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STATE OF California )
COUNTY OF San Mateo ) ss.:
On the 26th day of September, 1997, before me personally came Xxxxx X.
Xxxxxx to me known, who, being by me duly sworn, did depose and say that he is
the EVP and CFO of Xxxxxxx Properties, Inc., one of the entities described in
and which executed the above instrument; that he knows the corporate seal of
said corporation; that the seal affixed to the said instrument is such corporate
seal; that it was so affixed by authority of the corporation, and that he signed
his name thereto by like authority.
/s/ Xxxxx X. Xxxxxxx
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[Seal]
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