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EXHIBIT 99.17.2
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of December 11, 1995 (this "First
Supplemental Indenture"), among Xxxxxxx Properties, L.P., a limited partnership
organized under the laws of California (the "Issuer"), Xxxxxxx Properties,
Inc., a Maryland corporation, as Guarantor (the "Guarantor"), 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 Guarantor 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 $100,000,000 of its 6.65% Notes Due December 15, 2000 (the "2000
Notes") which are unconditionally guaranteed on a senior subordinated and
unsecured basis by the Guarantor pursuant to the guarantee dated as of December
11, 1995 (the "Guarantee");
WHEREAS, the Issuer desires to establish the terms of the 2000 Notes in
accordance with Sections 301 and to establish the form of 2000 Notes and
Guarantee in accordance with Section 201 of the Indenture.
ARTICLE 1
TERMS
SECTION 101. TERMS OF 2000 NOTES. The following terms relating to the
2000 Notes are hereby established:
(1) The 2000 Notes shall constitute a series of Securities having
the "6.65% Notes Due December 15, 2000."
(2) The aggregate principal amount of the 2000 Notes that may be
authenticated and delivered under the Indenture (except for 2000 Notes
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other 2000 Notes pursuant to Sections 304,
305, 306, 906, 1107 or 1305 of the Indenture) shall be up to $100,000,000.
(3) The entire outstanding principal of the 2000 Notes shall be
payable on December 15, 2000 (the "Stated Maturity Date").
(4) The rate at which the 2000 Notes shall bear interest shall be
6.65%; the date from which interest shall accrue shall be December 11,
1995; the
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Interest Payment Dates for the 2000 Notes on which interest will be
payable shall be June 15 and December 15 in each year, beginning June 15,
1996; the Regular Record Dates for the interest payable on the 2000 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.
(5) The place where the principal of and interest on the 2000 Notes
shall be payable and 2000 Notes may be surrendered for the registration of
transfer or exchange shall be the Corporate Trust Office of the Trustee at
Xxx Xxxxxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000. The place where
notices or demands to or upon the Issuer in respect of the 2000 Notes and
the Indenture may be served shall be the Corporate Trust Office of the
Trustee.
(6) (A) The 2000 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 2000 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 2000 Notes (or portion thereof) (the "Redemption Price").
If notice has been given as provided in the Indenture and funds
for the redemption of any 2000 Notes (or any portion thereof) called
for redemption shall have been made available on the redemption date
referred to in such notice, such 2000 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 2000
Notes will be to receive payment of the Redemption Price, with respect
to such 2000 Notes or portion thereof so redeemed.
Notice of any optional redemption of any 2000 Notes (or any
portion thereof) will be given to Holders at their addresses, as
shown in the security register for the 2000 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 2000 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 2000 Notes to be
redeemed and their redemption date. If less than all the 2000 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 2000
Notes to be redeemed in whole or in part.
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In the event of redemption of the 2000 Notes in part only, a
new 2000 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 2000 Note, 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
2000 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.
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(7) The 2000 Notes shall not be redeemable at the option of any
Holder thereof, upon the occurrence of any particular circumstances or
otherwise. The 2000 Notes will not have the benefit of any sinking fund.
(8) The 2000 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.
(10) The entire outstanding principal amount plus the Make-Whole
Amount of the 2000 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 2000 Notes
shall be made in U.S. Dollars, and the 2000 Notes shall be denominated in
U.S. Dollars.
(12) The 2000 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 2000 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 2000 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 2000 Notes, which shall be
effective only for so long as any of the 2000 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 the Guarantor, the Issuer and any of their Subsidiaries
(but only so long as such Debt is held solely by any of the
Guarantor, the Issuer and any Subsidiary) that is subordinate in
right of payment to the 2000 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 Guarantor if filed by
the Issuer with the Trustee in lieu
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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 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 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
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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 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 a mortgage, pledge, lien,
charge, encumbrance of 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,
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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
any reason of any contingency.
"Total Assets" as of any date means the sum of (i) Undepreciated
Real State 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" 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 Subsidiares on such date, before depreciation and
amortization, determined on a consolidated basis in accordance
with generally accepted accounting principles.
Unsecured Debt" means Debt which is not secured by any mortgage,
lien, charge, pledge, encumbranmce 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.
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(15) The 2000 Notes shall be issuable only as Registered Securities in
permanent global form (without coupons). Beneficial owners of interests in
the permanent global 2000 Notes may exchange such interests for 2000 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 2000 Note.
(16) The 2000 Notes shall not be issuable as Bearer Securities.
(17) Interest on any 2000 Note shall be payable only to the person in
whose name that 2000 Note (or one or more predecessor 2000 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 2000 Notes.
(19) The 2000 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 be
applicable to the 2000 Notes.
(21) The Issuer shall not pay Additional Amounts with respect to the
2000 Notes as contemplated by Section 1009 of the Indenture.
(22) The 2000 Notes shall not be subordinated to any other debt of the
Issuer, and shall constitute senior unsecured obligations of the Issuer.
SECTION 102. FORM OF 2000 NOTE. The form of the 2000 Note is attached
hereto as Exhibit A.
SECTION 103. FORM OF GUARANTEE. The form of Guarantee is attached hereto
as Exhibit B.
ARTICLE II
MISCELLANEOUS
SECTION 201. DEFINITIONS. Capitalized terms used but not defined in this
First Supplemental Indenture shall have the meanings ascribed thereto in the
Indenture.
SECTION 202. CONFIRMATION OF INDENTURE. The Indenture, as supplemented
and amended by this First Supplemental Indenture, is in all respects ratified
and confirmed, and the Indenture, this First Supplemental Indenture and all
indentures supplemental thereto shall be read, taken and construed as one and
the same instrument.
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SECTION 203. CONCERNING THE TRUSTEE. The Trustee assumes no duties,
responsibilities or liabilities by reason of this First Supplemental Indenture
other than as set forth in the Indenture.
SECTION 204. GOVERNING LAW. This First Supplemental Indenture, the
Indenture, the Securities and the Guarantees 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 First
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 First 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 First
Supplemental Indenture to be duly executed, and the corporate seal of the
Guarantor 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. XXXXXX
--------------------------
Name: Xxxxxx X. Xxxxxx
Title: VP & 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. XXXXXX
--------------------------
Name: Xxxxxx X. Xxxxxx
Title: VP & Secretary
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By:
----------------------------------
Name:
Title:
Attest:
By:
--------------------------
Name:
Title:
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STATE OF CALIFORNIA )
COUNTY OF SAN MATEO )ss.:
On the 6th day of December, 1995, 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
corporation 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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XXXXX X. XXXXXXX
COMM. #1062971
[SEAL] Notary Public -- California
SAN MATEO COUNTY
My Comm. Expires JUN 25, 1999
======================================
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, and the corporate seal of the
Guarantor 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:
----------------------------------
Name:
Title:
(seal)
Attest:
By:
--------------------------
Name:
Title:
XXXXXXX PROPERTIES, INC.
By:
----------------------------------
Name:
Title:
(seal)
Attest:
By:
--------------------------
Name:
Title:
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By: /s/ XXXX XXXXX
----------------------------------
Name: Xxxx Xxxxx
Title: Assistant Vice President
Attest:
By: /s/ CAROLINA X. XXXXXXXX
--------------------------
Name: CAROLINA X. XXXXXXXX
Title: ASSISTANT SECRETARY
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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.: $100,000,000
CUSIP NO.: 848503 AA 6
XXXXXXX PROPERTIES, L.P.
6.65% NOTE DUE DECEMBER 15, 2000
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
$100,000,000 on December 15, 2000, and to pay interest on the outstanding
principal amount thereon from December 11, 1995, or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semi-annually in arrears on June 15 and December 15 in each year (each an
"Interest Payment Date"), commencing June 15, 1996, and at the Stated Maturity,
at the rate of 6.65% 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
"2000 Note") (or one or more predecessor 2000 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 2000 Note (or one or more
predecessor 2000 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 2000 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 2000 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
2000 Note will be made at the office or agency of the Trustee (hereinafter
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defined) maintained for that purpose at Xxx 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 2000 Notes pursuant to
Section 305 of the Indenture (the "2000 Note Register") or (ii) transfer to an
account of the Person entitled thereto located inside the United States.
This 2000 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 First Supplemental Indenture
dated December 11, 1995 (collectively, the "Indenture"), among the Issuer,
Xxxxxxx Properties, Inc., as guarantor ("Guarantor") and State Street Bank and
Trust Company (the "Trustee," which term includes any successor trustee under
the Indenture with respect to the 2000 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 Guarantor, the Trustee and the Holders of the 2000 Notes, and of
the terms upon which the 2000 Notes are, and are to be, authenticated and
delivered. This 2000 Note is one of the series designated as the "6.65% Notes
Due December 15, 2000," limited in the aggregate principal amount to
$100,000,000.
The 2000 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 2000 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 2000 Notes (or portion thereof).
If notice has been given as provided in the Indenture and funds for the
redemption of any 2000 Notes (or any portion thereof) called for redemption
shall have been made available on the redemption date referred to in such
notice, such 2000 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 2000 Notes will be to receive payment of the Redemption
Price, with respect to such 2000 Notes or portion thereof so redeemed.
Notice of any optional redemption of any 2000 Notes (or any portion
thereof) will be given to Holders at their addresses, as shown in the 2000 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 2000 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 2000 Notes to be redeemed and their
redemption date. If less than all the 2000 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 2000 Notes to be redeemed in whole or in part.
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In the event of redemption of the 2000 Notes in part only, a new 2000
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 2000 Note, 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 2000 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 2000 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 2000 Note.
The Issuer is subject to certain covenants contained in the Indenture
with respect to, and for the benefit of the Holders of, the 2000 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 2000
Notes shall occur and be continuing, the principal of the 2000 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 2000 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
2000 Notes, the Holders of not less than a majority in principal amount of the
2000 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 2000 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 2000 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 Guarantor and the rights of the Holders of the 2000 Notes under
the Indenture at any time by the Issuer, the Guarantor and the Trustee with the
consent of the Holders of not less than a majority in principal amount of the
Outstanding 2000 Notes. The Indenture also contains provisions permitting the
Holders of not less than a majority in principal amount of the 2000 Notes at
the time Outstanding, on behalf of the Holders of all 2000 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 2000 Note shall be conclusive and binding upon
such Holder and upon all future Holders of this 2000 Note and of any 2000 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 2000 Note.
No reference herein to the Indenture and no provision of this 2000 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 2000
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 2000 Note is registrable in the 2000 Note Register,
upon surrender of this 2000 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 2000 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 2000 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 Indenture provides that the Guarantor may assume the obligations of the
Issuer under the Indenture and the 2000 Notes and upon assumption succeed to,
and be substituted for, the Issuer thereunder.
The 2000 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 2000 Notes are exchangeable for a like aggregate principal amount of 2000
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 2000 Note for registration of transfer, the
Issuer, the Guarantor, the Trustee and any agent of the Issuer, Guarantor or
the Trustee may treat the Person in whose name this 2000 Note is registered as
the owner hereof for all purposes, whether or not this 2000 Note be overdue,
and neither the Issuer, the Guarantor, the Trustee nor any such agent shall be
affected by notice to the contrary.
All terms used in this 2000 Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
THE INDENTURE, THE GUARANTEE AND THE 2000 NOTES INCLUDING THIS 2000 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 2000 Notes as a convenience to the Holders of the 2000 Notes. No
representation is made as to the correctness or accuracy of such CUSIP numbers
as printed on the 2000 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 2000 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 11th day of December, 1995.
XXXXXXX PROPERTIES, L.P.
By: /s/ XXXXX X. XXXXXX
----------------------------
Name: Xxxxx X. Xxxxxx
----------------------------
Title: Executive Vice President
and Chief Financial Officer
----------------------------
[SEAL]
Attest:
By: /s/ XXXXXX X. XXXXXX
-------------------------
Name: Xxxxxx X. Xxxxxx
-------------------------
Title: V.P. & Secretary
-------------------------
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the 2000 Notes of the series designated "6.65% Notes Due
December 15, 2000 referred to in the within-mentioned Indenture.
STREET BANK AND TRUST COMPANY,
Trustee
/S/
-------------------
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 2000 Note of Xxxxxxx Properties, L.P. and _________________________
hereby does irrevocably constitute and appoint
-------------------------------------------------------------------------------
Attorney to transfer said 2000 Note on the books of the within-named Trust 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 2000 Note in every particular, without
alteration or enlargement or any change whatever.
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