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EXHIBIT 99.17.14
SEVENTH SUPPLEMENTAL INDENTURE
SEVENTH SUPPLEMENTAL INDENTURE, dated as of December 10, 1996 (this
"Seventh 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"), and State Street Bank and Trust Company, as Trustee (the
"Trustee").
W I T N E S S E T H:
WHEREAS, the Issuer, the General Partner and the Trustee 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 Board Resolution, the Issuer has authorized the
issuance of $25,000,000 of its 7.875% Notes Due December 1, 2016 (the "2016
Notes");
WHEREAS, the Issuer desires to establish the terms of the 2016 Notes in
accordance with Section 301 of the Indenture and to establish the form of the
2016 Notes in accordance with Section 201 of the Indenture.
ARTICLE 1
TERMS
SECTION 101. TERMS OF 2016 NOTES. The following terms relating to
the 2016 Notes are hereby established:
(1) The 2016 Notes shall constitute a series of Securities having
the title "7.875% Notes Due December 1, 2016."
(2) The aggregate principal amount of the 2016 Notes that may be
authenticated and delivered under the Indenture (except for 2016 Notes
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other 2016 Notes pursuant to Sections 304,
305, 306, 906, 1107 or 1305 of the Indenture) shall be up to
$25,000,000.
(3) The entire outstanding principal of the 2016 Notes shall be
payable on December 1, 2016 (the "Stated Maturity Date").
(4) The rate at which the 2016 Notes shall bear interest shall be
7.875%; the date from which interest shall accrue shall be December 10,
1996; the Interest Payment Dates for the 2016 Notes on which interest
will be payable shall be December 1 and June 1 in each year, beginning
June 1, 1997; the Regular Record Dates for the interest payable on the
2016 Notes on any Interest Payment Date shall be the 15th calendar day
preceding the applicable Interest Payment
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Date; and the basis upon which interest shall be calculated shall be
that of a 360-day year consisting of twelve 30-day months.
(5) The place where the principal of and interest on the 2016
Notes shall be payable and 2016 Notes may be surrendered for the
registration of transfer or exchange shall be the Corporate Trust
Office of the Trustee which, as of this writing, is located at Xxx
Xxxxxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000. The place where
notices or demands to or upon the Issuer in respect of the 2016 Notes
and the Indenture may be served shall be the Corporate Trust Office of
the Trustee.
(6) (A) The 2016 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 2016 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 2016 Notes (or portion thereof) (the
"Redemption Price").
If notice has been given as provided in the Indenture and funds
for the redemption of any 2016 Notes (or any portion thereof)
called for redemption shall have been made available on the
redemption date referred to in such notice, such 2016 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 2016 Notes will be to receive payment of the
Redemption Price, with respect to such 2016 Notes or portion
thereof so redeemed.
Notice of any optional redemption of any 2016 Notes (or any
portion thereof) will be given to Holders at their addresses, as
shown in the security register for the 2016 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 2016 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 Price.
The Issuer will notify the Trustee at least 45 days prior to
giving notice of redemption (or such shorter period as is
satisfactory to the Trustee) of the aggregate principal amount of
2016 Notes to be redeemed and their redemption date. If less than
all the 2016 Notes are to be redeemed at the option of the Issuer,
the Trustee shall select, in such manner as it shall deem fair and
appropriate, the 2016 Notes to be redeemed in whole or in part.
In the event of redemption of the 2016 Notes in part only, a new
2016 Note for the amount of the unredeemed portion thereof shall be
issued in the name of the Holder thereto, upon cancellation
thereof.
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(B) As used herein:
"Make-Whole Amount" means, in connection with any optional
redemption or accelerated payment of any 2016 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 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 2016 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 2016 Notes shall not be redeemable at the option of any
Holder thereof, upon the occurrence of any particular circumstances or
otherwise. The 2016 Notes will not have the benefit of any sinking
fund.
(8) The 2016 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.
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(10) The entire outstanding principal amount plus the Make-Whole
Amount of the 2016 Notes shall be payable upon declaration of
acceleration of the maturity thereof pursuant to Section 502 of the
Indenture.
(11) Payments of the principal of and interest on the 2016 Notes
shall be made in U.S. Dollars, and the 2016 Notes shall be denominated
in U.S. Dollars.
(12) The 2016 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 2016 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 2016 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 2016 Notes, which shall
be effective only for so long as any of the 2016 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 2016 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
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by the Issuer or its Subsidiaries since the first day of such
four-quarter period and the application of 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 for gains and losses on properties, (e) depreciation
and amortization, (f) the effect of any noncash charge resulting
from a change in
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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).
"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
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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 2016 Notes shall be issuable only as Registered
Securities in permanent global form (without coupons). Beneficial
owners of interests in the permanent global 2016 Notes may exchange
such interests for 2016 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 2016 Note.
(16) The 2016 Notes shall not be issuable as Bearer Securities.
(17) Interest on any 2016 Note shall be payable only to the Person
in whose name that 2016 Note (or one or more predecessor 2016 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 2016 Notes.
(19) The 2016 Notes shall not be issuable in definitive form
except under the circumstances described in Section 305 of the
Indenture.
(20) Articles Sixteen and Seventeen of the Indenture shall not be
applicable to the 2016 Notes.
(21) The Issuer shall not pay Additional Amounts with respect to
the 2016 Notes as contemplated by Section 1009 of the Indenture.
(22) The 2016 Notes shall not be subordinated to any other debt of
the Issuer, and shall constitute senior unsecured obligations of the
Issuer.
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SECTION 102. FORM OF 2016 NOTE. The form of the 2016 Note is attached
hereto as Exhibit A.
ARTICLE II
MISCELLANEOUS
SECTION 201. DEFINITIONS. Capitalized terms used but not defined in
this Seventh Supplemental Indenture shall have the meanings ascribed thereto in
the Indenture.
SECTION 202. CONFIRMATION OF INDENTURE. The Indenture, as heretofore
supplemented and amended by this Seventh Supplemental Indenture, is in all
respects ratified and confirmed, and the Indenture, this Seventh Supplemental
Indenture and all indentures supplemental thereto shall be read, taken and
construed as one and the same instrument.
SECTION 203. CONCERNING THE TRUSTEE. The Trustee assumes no duties,
responsibilities or liabilities by reason of this Seventh 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 204. GOVERNING LAW. This Seventh 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 205. SEPARABILITY. In case any provision in this Seventh
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 206. COUNTERPARTS. This Seventh 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 Seventh
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/ Xxxx X. Xxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxx
Title: 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/ Xxxx X. Xxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Secretary
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Assistant Vice President
Attest:
By: /s/ Alison Della Bella
----------------------------
Name: Alison Della Bella
Title: Assistant Secretary
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STATE OF )
COUNTY OF ) ss.:
On the ______ day of _______________, 1996, before me personally came
_________________ to me known, who, being by me duly sworn, did depose and say
that he is the ____________________ 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.
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UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TO A
NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR
ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OR TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
REGISTERED PRINCIPAL AMOUNT
NO.: $25,000,000
CUSIP NO.: 848503-AE8
XXXXXXX PROPERTIES, L.P.
7.875% NOTE DUE DECEMBER 1, 2016
XXXXXXX PROPERTIES, L.P., a California limited partnership (the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or
registered assignee (the "Holder"), upon presentation, the principal sum of
$25,000,000 on December 1, 2016, and to pay interest on the outstanding
principal amount thereon from December 10, 1996, or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semi-annually in arrears on December 1 and June 1 in each year (each an
"Interest Payment Date"), commencing June 1, 1997, and at the Stated Maturity,
at the rate of 7.875% per annum, computed on the basis of a 360-day year
comprised of twelve 30-day months, until the entire principal amount hereof is
paid or duly provided for. The interest so payable, and punctually paid or duly
provided for on any Interest Payment Date will, as provided in the Indenture
(hereinafter defined), be paid to the person in whose name this Note (the "2016
Note") (or one or more predecessor 2016 Notes) is registered at the close of
business on the Regular Record Date for such Interest Payment Date which shall
be the 15th calendar day preceding the applicable Interest Payment Date. Any
such interest not so punctually paid or duly provided for shall forthwith cease
to be payable to the Holder on such Regular Record Date, and may either be paid
to the Person in whose name this 2016 Note (or one or more predecessor 2016
Notes) is registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest to be fixed by the Trustee, notice whereof
shall be given to Holders of 2016 Notes not more than 15 days and not less than
10 days prior to such Special Record Date, or may be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the 2016 Notes may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture. Payments
of the principal of, and interest on, this 2016 Note will be made at the office
or agency of the Trustee (hereinafter defined) maintained for that purpose at
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Two Xxxxxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or elsewhere as provided
in the Indenture, in United States Dollars; provided, however, that at the
option of the Holder hereof, and upon written notice to the Trustee of not less
than five Business Days prior to the applicable Interest Payment Date, payment
of interest may be made by (i) check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register kept for
the 2016 Notes pursuant to Section 305 of the Indenture (the "2016 Note
Register") or (ii) transfer to an account of the Person entitled thereto located
inside the United States.
This 2016 Note is one of a fully authorized issue of securities of the
Issuer issued as a series of securities issued and to be issued under an
Indenture, dated as of December 6, 1995 and the Seventh Supplemental Indenture
dated December 10, 1996 (collectively, the "Indenture"), among the Issuer and
State Street Bank and Trust Company (the "Trustee," which term includes any
successor trustee under the Indenture with respect to the 2016 Notes), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Issuer, the Trustee and the Holders of the 2016 Notes, and of
the terms upon which the 2016 Notes are, and are to be, authenticated and
delivered. This 2016 Note is one of the series designated as the "7.875% Notes
Due December 1, 2016," limited in the aggregate principal amount to $25,000,000.
The 2016 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 (the "Redemption
Price") equal to the sum of (i) the principal amount of the 2016 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 2016 Notes (or portion thereof).
If notice has been given as provided in the Indenture and funds for the
redemption of any 2016 Notes (or any portion thereof) called for redemption
shall have been made available on the redemption date referred to in such
notice, such 2016 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 2016 Notes will be to receive payment of the Redemption
Price, with respect to such 2016 Notes or portion thereof so redeemed.
Notice of any optional redemption of any 2016 Notes (or any portion
thereof) will be given to Holders at their addresses, as shown in the 2016 Note
Register, 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 2016 Notes held by such Holder
to be redeemed.
The Issuer will notify the Trustee at least 45 days prior to giving
notice of redemption (or such shorter period as is satisfactory to the Trustee)
of the aggregate principal amount of 2016 Notes to be redeemed and their
redemption date. If less than all the 2016 Notes are to be redeemed at the
option of the Issuer, the Trustee shall select, in such manner as it shall deem
fair and appropriate, the 2016 Notes to be redeemed in whole or in part.
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In the event of redemption of the 2016 Notes in part only, a new 2016
Note for the amount of the unredeemed portion hereof shall be issued in the name
of the Holder hereto, upon cancellation hereof.
As used herein:
"Make-Whole Amount" means, in connection with any optional redemption
or accelerated payment of any 2016 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 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 2016 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.
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness of the Issuer on this 2016 Note and (b) certain restrictive
covenants and the related defaults and Events of Default applicable to the
Issuer, in each case, upon compliance by the Issuer with certain conditions set
forth in the Indenture, which provisions apply to this 2016 Note.
The Issuer is subject to certain covenants contained in the Indenture
with respect to, and for the benefit of the Holders of, the 2016 Notes. The
Trustee shall not be obligated to monitor or confirm, on a continuing basis or
otherwise, the Issuer's compliance with the covenants
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contained in the Indenture or with respect to reports or other certificates
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.
If an Event of Default as defined in the Indenture with respect to the
2016 Notes shall occur and be continuing, the principal of the 2016 Notes may be
declared due and payable in the manner and with the effect provided in the
Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this 2016 Note shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
2016 Notes, the Holders of not less than a majority in principal amount of the
2016 Notes at the time Outstanding shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default as Trustee
and offered the Trustee reasonable indemnity and shall have failed to institute
any such proceeding, for 60 days after receipt of such notice, request and offer
of indemnity and the Trustee shall not have received from the Holders of a
majority in principal amount of the 2016 Notes at the time Outstanding a
direction inconsistent with such request. The foregoing shall not apply to any
suit instituted by the Holder of this 2016 Note for the enforcement of any
payment of principal hereof or any interest on or after the respective due dates
expressed herein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the 2016 Notes under the Indenture at
any time by the Issuer and the Trustee with the consent of the Holders of not
less than a majority in principal amount of the Outstanding 2016 Notes. The
Indenture also contains provisions permitting the Holders of not less than a
majority in principal amount of the 2016 Notes at the time Outstanding, on
behalf of the Holders of all 2016 Notes, to waive compliance by the Issuer with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this 2016 Note shall be conclusive and binding upon such Holder and upon all
future Holders of this 2016 Note and of any 2016 Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this 2016 Note.
No reference herein to the Indenture and no provision of this 2016 Note
or of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of, and interest on, this 2016
Note at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this 2016 Note is registrable in the 2016 Note
Register, upon surrender of this 2016 Note for registration of transfer at the
office or agency of the Issuer in any Place of Payment where the principal of,
and interest on, this 2016 Note are payable, duly endorsed by, or
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accompanied by a written instrument of transfer in form satisfactory to the
Issuer and the Security Registrar for the 2016 Notes duly executed by, the
Holder hereof or his attorney duly authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The 2016 Notes of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
the 2016 Notes are exchangeable for a like aggregate principal amount of 2016
Notes of this series of a different authorized denomination, as requested by the
Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this 2016 Note for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the Person in whose name this 2016 Note is registered as the owner hereof
for all purposes, whether or not this 2016 Note be overdue, and neither the
Issuer, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this 2016 Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE 2016 NOTES INCLUDING THIS 2016 NOTE, SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Issuer has caused "CUSIP" numbers to be
printed on the 2016 Notes as a convenience to the Holders of the 2016 Notes. No
representation is made as to the correctness or accuracy of such CUSIP numbers
as printed on the 2016 Notes, and reliance may be placed only on the other
identification numbers printed hereon.
Unless the certificate of authentication hereon has been executed by or
on behalf of the Trustee by manual signature, this 2016 Note shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purposes.
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IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its corporate seal this day of December, 1996.
XXXXXXX PROPERTIES, L.P.
By:
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
[SEAL]
Attest:
By:
--------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Secretary
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the 2016 Notes of the series designated "7.875% Notes
Due December 1, 2016" referred to in the within-mentioned Indenture.
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:
--------------------------
Authorized Officer
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ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers to
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNS
- -----------------------------------------------------------------
- -----------------------------------------------------------------
(Please Print or Typewrite Name and Address Including Zip Code of Assignee)
- -----------------------------------------------------------------
the within 2016 Note of Xxxxxxx Properties, L.P. and hereby does irrevocably
constitute and appoint
- -----------------------------------------------------------------
Attorney to transfer said 2016 Note on the books of the within-named Issuer with
full power of substitution in the premises.
Dated:
------------ -----------------------------------
-----------------------------------
Signature(s) must be guaranteed by an eligible Guarantor Institution (banks,
stock brokers, savings and loan associations and credit unions) with membership
in an approved signature guarantee medallion program pursuant to Securities and
Exchange Commission Rule 17Ad-15.
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within 2016 Note in every particular, without
alteration or enlargement or any change whatever.
