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EXHIBIT 99.17.5
THIRD SUPPLEMENTAL INDENTURE
THIRD SUPPLEMENTAL INDENTURE, dated as of December 11, 1995 (this
"Third 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").
WITNESSETH:
WHEREAS, the Issuer, the Guarantor and the Trustee executed and
delivered an Indenture, dated as of December 6, 1995 (as supplemented hereby,
the "Indentured"), 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 $110,000,000 of its 6.95% Notes Due December 15, 2002 (the "2002
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 term of the 2002 Notes in
accordance with Sections 301 and to establish the form of 2002 Notes and
Guarantee in accordance with Section 201 of the Indenture.
ARTICLE I
TERMS
SECTION 101. TERMS OF 2002 NOTES. The following terms relating to
the 2002 Notes are hereby established:
(1) The 2002 Notes shall constitute a series of Securities having
the title "6.95% Notes Due December 15, 2002."
(2) The aggregate principal amount of the 2002 Notes that may
be authenticated and delivered under the Indenture (except for 2002
Notes authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other 2002 Notes pursuant to Sections
304, 305, 306, 906, 1107 or 1305 of the Indenture) shall be up to
$110,000,000.
(3) The entire outstanding principal of the 2002 Notes shall be
payable on December 15, 2002 (the "Stated Maturity Date").
(4) The rate at which the 2002 Notes shall bear interest shall be
6.95%; the date from which interest shall accrue shall be December 11,
1995; the
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Interest Payment Dates for the 2002 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 2002 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 2002 Notes shall
be payable and 2002 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 2002 Notes and the Indenture may be served
shall be the Corporate Trust Office of the Trustee.
(6) (A) The 2002 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 2002 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 2002
Notes (or portion thereof) (the "Redemption Price").
If notice has been given as provided in the Indenture and funds for
the redemption of any 2002 Notes (or any portion thereof) called for
redemption shall have been made available on the redemption date referred
to in such notice, such 2002 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 2002 Notes will be to
receive payment of the Redemption Price, with respect to such 2002 Notes
or portion thereof so redeemed.
Notice of any optional redemption of any 2002 Notes (or any portion
thereof) will be given to Holders at their addresses, as shown in the
security register for the 2002 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 2002 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 2002 Notes to be redeemed
and their redemption date. If less than all the 2002 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 2002 Notes to be redeemed
in whole or in part.
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In the event of redemption of the 2002 Notes in part only, a new 2002
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 2002 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 2002 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 2002 Notes shall not be redeemable at the option of any Holder
thereof, upon the occurrence of any particular circumstances or otherwise. The
2002 Notes will not have the benefit of any sinking fund.
(8) The 2002 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 2002 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 2002 Notes shall be
made in the U.S. Dollars, and the 2002 Notes shall be denominated in U.S.
Dollars.
(12) The 2002 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 2002 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 2002 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 2002 Notes, which shall be effective
only for so long as any of the 2002 Notes are Outstanding:
Limitations On Incurrence of Debt. The Issuer will not, and 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
2002 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 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 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 of 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 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" 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" 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.
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(15) The 2002 Notes shall be issuable only as Registered
Securities in permanent global form (without coupons). Beneficial
owners of interests in the permanent global 2002 Notes may exchange such
interests for 2002 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 2002 Note.
(16) The 2002 Notes shall not be issuable as Bearer Securities.
(17) Interest on any 2002 Note shall be payable only to the Person
in whose name that 2002 Note (or one or more predecessor 2002 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 2002 Notes.
(19) The 2002 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 2002 Notes.
(21) The Issuer shall not pay Additional Amounts with respect to
the 2002 Notes as contemplated by Section 1009 of the Indenture.
(22) The 2002 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 2002 NOTE. The form of the 2002 Notes 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 Third Supplemental Indenture shall have the meanings ascribed thereto in
the Indenture.
SECTION 202. CONFIRMATION OF INDENTURE. The Indenture, as supplemented
and amended by this Third Supplemental Indenture, is in all respects ratified
and confirmed, and the Indenture, this Third 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 Third Supplemental Indenture
other than as set forth in the Indenture.
SECTION 204. GOVERNING LAW. This Third 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 Third
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 Third 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 Third
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: V.P. & 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: V.P. & Secretary
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By:
------------------------------
Name:
Title:
(seal)
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 Third
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.: $110,000,000
CUSIP NO.: 848503 AC 2
XXXXXXX PROPERTIES, L.P.
6.95% NOTE DUE DECEMBER 15, 2002
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 $110,000,000 on December
15, 2002, 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 6.95% 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 "2002 Note") (or one or more predecessor 2002
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
2002 Note (or one or more predecessor 2002 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 2002 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 2002 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 2002 Note will be made at the office or agency of the Trustee (hereinafter
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fined) maintained for that purpose at Xxx Xxxxxxxxxxxxx Xxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, 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 (i) check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register kept for the 2002 Notes pursuant to Section 305
of the Indenture (the "2002 Note Register") or (ii) transfer to an account of
the Person entitled thereto located inside the United States.
This 2002 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 Third 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 2002 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 2002 Notes, and of
the terms upon which the 2002 Notes are, and are to be, authenticated and
delivered. This 2002 Note is one of the series designated as the "6.95% Notes
Due December 15, 2002," limited in the aggregate principal amount to
$110,000,000.
The 2002 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 2002 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 2002 Notes (or portion thereof).
If notice has been given as provided in the Indenture and funds for the
redemption of any 2002 Notes (or any portion thereof) called for redemption
shall have been made available on the redemption date referred to in such
notice, such 2002 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 2002 Notes will be to receive payment of the Redemption
Price, with respect to such 2002 Notes or portion thereof so redeemed.
Notice of any optional redemption of any 2002 Notes (or any portion
thereof) will be given to Holders at their addresses, as shown in the 2002 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 2002 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 2002 Notes to be redeemed and their
redemption date. If less than all the 2002 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 2002 Notes to be redeemed in whole or in part.
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In the event of redemption of the 2002 Notes in part only, a new 2002
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 2002 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 2002 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 2002 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 2002 Note.
The Issuer is subject to certain covenants contained in the Indenture
with respect to, and for the benefit of the Holders of, the 2002 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
2002 Notes shall occur and be continuing, the principal of the 2002 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 2002 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
2002 Notes, the Holders of not less than a majority in principal amount of the
2002 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 2002 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 2002 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 hereof and the modification of the rights and obligations of the
Issuer and the Guarantor and the rights of the Holders of the 2002 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 2002 Notes. The Indenture also contains provisions permitting the
Holders of not less than a majority in principal amount of the 2002 Notes at the
time Outstanding, on behalf of the Holders of all 2002 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 2002 Note shall be conclusive and binding upon such
Holder and upon all future Holders of this 2002 Note and of any 2002 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 2002
Note.
No reference herein to the Indenture and no provision of this 2002 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 2002
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 2002 Note is registrable in the 2002 Note
Register, upon surrender of this 2002 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 2002 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 2002 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 obligations of the
Issuer under the Indenture and the 2002 Notes and upon assumption succeed to,
and be substituted for, the Issuer thereunder.
The 2002 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 2002 Notes are exchangeable for a like aggregate principal amount of 2002
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 2002 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 2002 Note is registered as
the owner hereof for all purposes, whether or not this 2002 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 2002 Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
THE INDENTURE, THE GUARANTEE AND THE 2002 NOTES INCLUDING THIS 2002
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 2002 Notes as a convenience to the Holders of the 2002 Notes. No
representation is made as to the correctness or accuracy of such CUSIP numbers
as printed on the 2002 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 2002 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 2002 Notes of the series designated "6.95% Notes Due
December 15, 2002" referred to in the within-mentioned Indenture.
STATE 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 2002 Note of Xxxxxxx Properties, L.P. and
hereby does irrevocably constitute and appoint -----------------------
----------------------------------------------------------------------------
Attorney to transfer said 2002 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 2002 Note in every particular, without
alteration or enlargement or any change whatever.
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