EXHIBIT 4.1
SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE, dated as of August 2, 2004 (this
"Supplemental Indenture"), by and between ARCHSTONE-XXXXX OPERATING TRUST
(formerly known as Property Trust of America and as Archstone Communities
Trust), a real estate investment trust organized under the laws of the State of
Maryland having its principal office at 0000 X. Xxxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxxxxx 00000 (hereinafter sometimes called the "Company"), and U.S.
BANK NATIONAL ASSOCIATION (as successor in interest to State Street Bank and
Trust Company), having a corporate trust office at Corporate Trust Services, 000
Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, as successor Trustee under
the Base Indenture (defined below) (the "Trustee").
RECITALS OF THE COMPANY
The Company and the Trustee have heretofore entered into an Indenture
dated as of February 1, 1994, as amended by a First Supplemental Indenture dated
as of February 2, 1994 (as so supplemented hereinafter called the "Base
Indenture") between the Company and the Trustee, providing for the issuance by
the Company from time to time of its senior debt securities evidencing its
unsecured and unsubordinated indebtedness (the "Securities").
Section 301 of the Base Indenture provides for various matters with
respect to any series of Securities issued under the Base Indenture to be
established in an indenture supplemental to the Base Indenture.
Section 901(7) of the Base Indenture provides for the Company and the
Trustee to enter into an indenture supplemental to the Base Indenture to
establish the form of or terms of Securities of any series as provided by
Sections 201 and 301 of the Base Indenture.
The Board of Trustees of Archstone-Xxxxx Trust, the sole trustee of the
Company, has duly adopted resolutions authorizing the Company to execute and
deliver this Supplemental Indenture and authorized the issuance of the Notes.
All things necessary to make the Indenture, as hereby modified, a valid
agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and of the covenants contained
herein and in the Indenture, and the purchase of Securities provided for herein
by the Holders thereof, the Company and the Trustee covenant and agree, for the
equal and proportionate benefit of all Holders of Notes, as follows:
ARTICLE ONE
RELATION TO BASE INDENTURE; DEFINITIONS
Section 1.1. Relation to Base Indenture. This Supplemental Indenture
constitutes an integral part of the Base Indenture.
Section 1.2. Definitions. For all purposes of this Supplemental
Indenture, except as otherwise expressly provided for or unless the context
otherwise requires:
(1) Capitalized terms used but not defined herein shall have the
respective meanings assigned to them in the Base Indenture;
(2) The definition of the term "Total Assets" provided for herein
applies solely to this Supplemental Indenture and the
covenants set forth in Section 2.4 hereof.; and
(3) All references herein to Articles and Sections, unless
otherwise specified, refer to the corresponding Articles and
Sections of this Supplemental Indenture.
"Capitalization Rate" means: (i) 7.5%.
"Capitalized Property Value" means, as of any date, the aggregate sum
of all Property EBITDA for each such property for the prior four quarters and
capitalized at the applicable Capitalization Rate, provided, however, that if
the value of a particular property calculated pursuant to this clause is less
than the undepreciated book value of such property determined in accordance with
GAAP, such undepreciated book value shall be used in lieu thereof with respect
to such property. "Property EBITDA" is defined as, for any period of time,
without duplication net earnings (loss), excluding net derivative gains (losses)
and gains (losses) on dispositions of real estate, before deductions for the
Company and its Subsidiaries (including amounts reported in discontinued
operations) for (i) interest expense; (ii) provision for taxes based on income;
(iii) depreciation, amortization and all other non-cash items, as determined in
good faith by the Company, deducted in arriving at net income (loss); (iv)
extraordinary items; (v) non-recurring items, as determined in good faith by the
Company (including prepayment penalties); and (vi) minority interest. In each
case for such period, amounts will be as reasonably determined by the Company in
accordance with GAAP, except to the extent GAAP is not applicable with respect
to the determination of all non-cash and non-recurring items. For purposes of
this definition, Property EBITDA will not include corporate level general and
administrative expenses and other corporate expenses such as land holding costs
and pursuit cost write-offs as determined in good faith by the Company.
"Consolidated EBITDA" means, for any period of time, without
duplication net earnings (loss), excluding net derivative gains (losses) and
gains (losses) on dispositions of REIT real estate investments as reflected in
the reports filed by Archstone-Xxxxx Trust under the Exchange Act, before
deductions for the Company and its Subsidiaries (including amounts reported in
discontinued operations) for (i) interest expense; (ii) provision for taxes
based on income; (iii) depreciation, amortization and all other non-cash items,
as determined in good faith by the Company, deducted in arriving at net income
(loss); (iv) extraordinary items; (v) non-recurring items, as determined in good
faith by the Company (including prepayment penalties); and (vi) minority
interest. In each case for such period, amounts will be as reasonably determined
by the Company in accordance with GAAP, except to the extent GAAP is not
applicable with respect to the determination of all non-cash and non-recurring
items. Consolidated EBITDA will be adjusted, without duplication, to give pro
forma effect: (x) in the case of any assets having been placed-in-service or
removed from service since the beginning of the period and on or prior to the
date of determination, to include or exclude, as the case may be, any
Consolidated EBITDA
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earned or eliminated as a result of the placement of such assets in service or
removal of such assets from service as if the placement of such assets in
service or removal of such assets from service occurred at the beginning of the
period; and (y) in the case of any acquisition or disposition of any asset or
group of assets since the beginning of the period and on or prior to the date of
determination, including, without limitation, by merger, or share or asset
purchase or sale, to include or exclude, as the case may be, any Consolidated
EBITDA earned or eliminated as a result of the acquisition or disposition of
those assets as if the acquisition or disposition occurred at the beginning of
the period.
"Make-Whole Amount" means, in connection with any optional redemption
or accelerated payment of any 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 such dollar if such redemption or accelerated
payment had not been made, determined by discounting, on a semiannual 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
Securities being redeemed or paid.
"Reinvestment Rate" means .25% (one-quarter of one percent) plus the
arithmetic mean of the yields under the respective headings "This Week" and
"Last Week" published in the 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 purposes 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.
"Stabilized Property" means (i) with respect to an acquisition of an
income producing property, a property becomes stabilized when the Company or its
Subsidiaries have owned the property for at least four (4) full quarters and
(ii) with respect to new construction or development property, a property
becomes stabilized four (4) full quarters after the earlier of (a) eighteen (18)
months after substantial completion of construction or development, and (b) the
quarter in which the occupancy level of the property is at least ninety-three
percent (93%).
"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 Company.
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"Total Assets" means the sum of: (1) for Stabilized Properties,
Capitalized Property Value; and (2) for all other assets of the Company and its
Subsidiaries, undepreciated book value as determined in accordance with GAAP.
ARTICLE TWO
THE NOTES
Section 2.1. Title of Securities. There shall be a series of Securities
designated the "5.625% Senior Notes due 2014" (the "Notes").
Section 2.2. Limitation on Aggregate Principal Amount. The aggregate
principal amount of the Notes initially shall be limited to $300,000,000. The
Company may, subject to Section 2.4 of this Supplemental Indenture and
applicable law, issue additional Notes under this Supplemental Indenture without
the consent of the Holders of outstanding Notes. The initially issued Notes and
any additional Notes subsequently issued shall be treated as a single class for
all purposes of this Supplemental Indenture and the Base Indenture and such
additional Notes shall be substantially identical to initially issued Notes.
Nothing contained in this Section 2.2 or elsewhere in this Supplemental
Indenture, or in the Notes, is intended to or shall limit execution by the
Company or authentication or delivery by the Trustee of Notes under the
circumstances contemplated by Sections 303, 304, 305, 306, 906, 1107 and 1305 of
the Base Indenture.
Section 2.3. Interest and Interest Rates; Maturity Date of Notes.
(a) The Notes shall bear interest at 5.625% per annum from
August 2, 2004 or from the immediately preceding Interest Payment Date
(as defined below) to which interest has been paid, payable
semi-annually in arrears on February 15 and August 15 of each year,
commencing February 15, 2005 (each, an "Interest Payment Date"), to the
persons (the "Holders") in whose name the applicable Notes are
registered in the Security Register at the close of business 15
calendar days prior to such Interest Payment Date (i.e., February 1 and
August 1, respectively) (regardless of whether such day is a Business
Day, as defined below), as the case may be (each, a "Regular Record
Date"). Interest on the Notes shall be computed on the basis of a
360-day year of twelve 30-day months. Interest, if any, not punctually
paid or duly provided for on any Interest Payment Date with respect to
a Note ("Defaulted Interest") shall forthwith cease to be payable to
the Holder on the applicable Regular Record Date and may either be paid
to the person in whose name such Note is registered at the close of
business on a special record date (the "Special Record Date") for the
payment of such Defaulted Interest to be fixed by the Trustee, notice
of which shall be given to the Holder of such Note not less than ten
days prior to such Special Record Date, or may be paid at any time in
any other lawful manner, as more particularly described in the Base
Indenture.
(b) If any Interest Payment Date or Maturity falls on a day
that is not a Business Day, the required payment shall be made on the
next Business Day as if it were made on the date such payment was due
and no interest shall accrue on the amount so payable for the period
from and after such Interest Payment Date or Maturity, as the case may
be.
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(c) The Notes shall mature on August 15, 2014.
Section 2.4. Limitations on Incurrence of Debt. In addition to the
covenants set forth in Article TEN of the Base Indenture, there are established
pursuant to Section 901(2) of the Base Indenture the following covenants for the
benefit of the Holders of the Notes and to which the Notes shall be subject;
provided, however, that the covenants set forth in Section 1004 of the Base
Indenture shall apply to the Notes only for so long as any Securities issued
pursuant to the Base Indenture prior to the date hereof remain outstanding:
(a) The Company will not, and will not permit any Subsidiary
to, incur any Debt if, immediately after giving effect to the
incurrence of such additional Debt and the application of the proceeds
thereof, Debt would exceed 65% of Total Assets at the reporting date.
(b) In addition to the limitations set forth in Section 2.4(a)
of this Supplemental Indenture, the Company will not, and will not
permit any Subsidiary to, incur any Debt if the ratio of Consolidated
EBITDA to the Annual Service Charge for the four consecutive fiscal
quarters most recently ended prior the date on which such additional
Debt is to be incurred shall have been less than 1.5, on a pro forma
basis after giving effect thereto and to the application of the
proceeds therefrom, and calculated on the assumption that (i) such Debt
and any other Debt incurred by the Company and 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 Company and 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) in the case of Acquired Debt or Debt incurred in connection with
any acquisition since the first day of such four-quarter period, the
related acquisition had occurred as of the first day of such period
with the appropriate adjustments with respect to such acquisition being
included in such pro forma calculation; and (iv) in the case of any
acquisition or disposition by the Company or its Subsidiaries of any
asset or group of assets since the first day of such four-quarter
period, whether 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.
(c) In addition to the limitation set forth in subsections (a)
and (b) of this Section 2.4, the Company 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 Company or any Subsidiary, whether owned at the
date hereof or hereafter acquired, if, immediately after giving effect
to the incurrence of such additional Debt and the application of the
proceeds thereof, the aggregate principal amount of all outstanding
Debt of the Company and its Subsidiaries on a consolidated basis which
is secured by any mortgage, lien, charge, pledge, encumbrance or
security
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interest on property of the Company or any Subsidiary is greater than
40% of the Company's Total Assets.
(d) For purposes of this Section 2.4 Debt shall be deemed to
be "incurred" by the Company or a Subsidiary whenever the Company or
such Subsidiary shall create, assume, guarantee or otherwise become
liable in respect thereof.
Section 2.5. Optional Redemption. The Notes shall be redeemable, at the
option of the Company, in whole at any time or in part from time to time, as
provided in Article ELEVEN of the Base Indenture, and at a redemption price
equal to the sum of (i) the principal amount of the Notes being redeemed plus
accrued interest thereon to the redemption date and (ii) the Make-Whole Amount,
if any (the "Redemption Price").
Section 2.6. Places of Payment. The Places of Payment where the Notes
may be presented or surrendered for payment, where the Notes may be surrendered
for registration of transfer or exchange and where notices and demands to and
upon the Company in respect of the Notes and the Base Indenture may be served
shall be the office or agency of the Trustee for such purpose which shall
initially be located at c/o U.S. Bank National Association, 00 Xxxxxxxxxx
Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000.
Section 2.7. Method of Payment. Payment of the principal of and
interest on the Notes shall be made at the office or agency of the Company
maintained for that purpose (which shall initially be an office or agency of the
Trustee), in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts;
provided, however, that at the option of the Company, payments of principal and
interest on the Notes (other than payments of principal and interest due at
Maturity) may be made (i) by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register or (ii) by wire
transfer to an account maintained by the Person entitled thereto located within
the United States.
Section 2.8. Currency. Principal and interest on the Notes shall be
payable in Dollars.
Section 2.9. Registered Securities; Global Form. The Notes shall be
issuable and transferable in fully registered form as Registered Securities,
without coupons. The Notes shall initially be issued in the form of one or more
permanent global Notes. The depository for the Notes shall be The Depository
Trust Company (the "Depositary"). The Notes shall not be issuable in definitive
form except as provided in Section 305 of the Base Indenture.
Section 2.10. Form of Notes. The Notes shall be substantially in the
form attached as Exhibit A hereto.
Section 2.11. Transfer and Exchange. Transfers and exchanges of Notes
shall be made in the manner described in Section 305 of the Base Indenture.
Section 2.12. General Provisions Relating to Transfers and Exchanges.
(a) The Trustee and the Security Registrar will retain copies
of all certificates, opinions and other documents received in
connection with the transfer or exchange of a
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Note (or a beneficial interest therein), in accordance with its
standard record retention procedures and the Company will have the
right to inspect and make copies thereof at any reasonable time upon
written notice to the Trustee or the Security Registrar, as the case
may be.
(b) Each Holder of a Note agrees to indemnify the Company,
Security Registrar and the Trustee against any liability that may
result from the transfer, exchange or assignment of such Holder's Note
in violation of any provision of this Supplemental Indenture or
applicable United States federal or state securities law.
(c) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Supplemental Indenture or under applicable law with
respect to any transfer of any interest in any Note (including any
transfers between or among members of, or participants or indirect
participants in, the Depositary or beneficial owners of interests in
any global Note) other than to require delivery of such certificates
and other documentation or evidence as are expressly required by, and
to do so if and when expressly required by the terms of, this
Supplemental Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
Section 2.13. Registrar and Paying Agent. The Trustee shall initially
serve as Security Registrar and Paying Agent for the Notes.
Section 2.14. Defeasance. The provisions of Article FOURTEEN of the
Base Indenture shall be applicable to the Notes. The provisions of Section 1403
of the Base Indenture shall apply to the covenants set forth in Section 2.4 of
this Supplemental Indenture and to those covenants specified in Section 1403 of
the Base Indenture.
Section 2.15. Waiver of Certain Covenants. Notwithstanding the
provisions of Section 1012 of the Base Indenture, the Company may omit in any
particular instance to comply with any term, provision or condition set forth in
Sections 1004 to 1009, inclusive, of the Base Indenture, with Section 2.4 of
this Supplemental Indenture and with any other term, provision or condition with
respect to the Notes (except any such term, provision or condition which could
not be amended without the consent of all Holders of the Notes), if before or
after the time for such compliance the Holders of at least a majority in
principal amount of all outstanding Notes, by Act of such Holders, either waive
such compliance in such instance or generally waive compliance with such
covenant or condition. Except to the extent so expressly waived, and until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
Section 2.16. No Sinking Fund. The provisions of Article TWELVE of the
Base Indenture shall not be applicable to the Notes.
Section 2.17. No Repayment at Option of Holders. The provisions of
Article THIRTEEN of the Base Indenture shall not be applicable to the Notes.
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ARTICLE THREE
MISCELLANEOUS PROVISIONS
Section 3.1. All capitalized terms which are used herein and not
otherwise defined herein are defined in the Indenture and are used herein with
the same meanings as in the Indenture.
Section 3.2. This Supplemental Indenture shall be effective as of the
opening of business on the date first above written upon the execution and
delivery hereof by each of the parties hereto.
Section 3.3. Except as expressly modified or amended hereby, the Base
Indenture continues in full force and effect and is in all respects confirmed,
ratified and preserved.
Section 3.4. Except as expressly amended hereby, the Indenture shall
continue in full force and effect in accordance with the provisions thereof and
the Indenture is in all respects hereby ratified and confirmed. This
Supplemental Indenture and all its provisions shall be deemed a part of the
Indenture in the manner and to the extent herein and therein provided.
Section 3.5. This Supplemental Indenture shall be governed by, and
construed in accordance with, the laws of the State of New York.
Section 3.6. This Supplemental Indenture may be executed in any number
of counterparts, each of which so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same
instrument.
Section 3.7. The Trustee shall have not any responsibility for the
Recitals of the Company hereto, which Recitals are made by the Company alone, or
for the validity or sufficiency of this Supplement Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
ARCHSTONE-XXXXX OPERATING TRUST
By:
-------------------------------
[Name]
[Title]
[SEAL]
Attest:
By:
-------------------------------
Xxxxxxxx Xxxxxx
Secretary
U.S. BANK NATIONAL ASSOCIATION, as
Trustee as aforesaid
By:
-------------------------------
[Name]
[Title]
Attest:
By:
-------------------------------
EXHIBIT A
FORM OF NOTE
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Company (as
defined below) or its agent for registration of transfer, exchange, or payment,
and any certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to 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.: 1 $________
CUSIP No.: __________
ARCHSTONE-XXXXX OPERATING TRUST
_____% NOTE DUE 20__
ARCHSTONE-XXXXX OPERATING TRUST, a real estate investment trust
organized and existing under the laws of the State of Maryland (hereinafter
called the "Company," which term shall include any successor under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, upon presentation, the principal sum of
____________________ DOLLARS on __________, 20__ and to pay interest on the
outstanding principal amount thereon from __________, 2004 or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, semi-annually in arrears on __________ and __________ in each year,
commencing on __________, 2004, at the rate of _____% per annum, until the
entire principal hereof is paid or made available for payment. The interest so
payable, and punctually paid or duly provided for on any Interest Payment Date
will, as provided in the Indenture, be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest which shall be the
__________ or __________ (whether or not a Business Day), as the case may be,
next preceding such 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 Security (or one or more Predecessor Securities) 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
Securities of this series 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 Securities may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture. Payment of the
principal of, Make-Whole Amount, if any, on, and interest on this Security will
be made at the office or agency of the Company maintained for that purpose in
the City of Minneapolis, Minnesota, or elsewhere as provided in the Indenture,
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts; provided,
however, that at the option of the Company payment of interest may be
A-1
made by (i) check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register or (ii) transfer to an account of
the Person entitled thereto located inside the United States.
Each Security of this series is one of a duly authorized issue of
securities of the Company (herein called the "Securities"), issued and to be
issued in one or more series under an Indenture, dated as of February 1, 1994,
between Archstone-Xxxxx Operating Trust (formerly known as Archstone Communities
Trust and prior thereto Security Capital Pacific Trust and Property Trust of
America) (the "Company") and Xxxxxx Guaranty Trust Company of New York, as
trustee ("Xxxxxx"), as supplemented by the First Supplemental Indenture dated as
of February 2, 1994 (the "Indenture") between the Company, State Street Bank and
Trust Company, as successor trustee, and Xxxxxx, and as further supplemented by
the Second Supplemental Indenture dated as of July __, 2004 between the Company
and U.S. Bank National Association, as successor trustee (herein called the
"Trustee," which term includes any successor trustee under the Indenture with
respect to the series of which this Security is a part) 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 Company, the Trustee and the Holders of the Securities and of the terms
upon which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the first page hereof, initially
limited in aggregate principal amount to $__________, subject to the Company's
right to increase the aggregate principal amount of such series from time to
time.
Securities of this series may be redeemed at any time at the option of
the Company, in whole or in part, at a redemption price equal to the sum of (i)
the principal amount of the Securities being redeemed plus accrued interest
thereon to the Redemption Date and (ii) the Make-Whole Amount, if any, with
respect to such Securities.
The following definitions apply with respect to any redemption of the
Securities of this series at the option of the Company:
"Make-Whole Amount" means, in connection with any optional redemption
or accelerated payment of any Security, 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 such dollar if such redemption or accelerated
payment had not been made, determined by discounting, on a semiannual 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
Securities being redeemed or paid.
"Reinvestment Rate" means .__% (one-quarter of one percent) plus the
arithmetic mean of the yields under the respective headings "This Week" and
"Last Week" published in the 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
A-2
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 purposes 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 Company.
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness of the Company on this Security and (b) certain restrictive
covenants and the related defaults and Events of Default applicable to the
Company, in each case, upon compliance by the Company with certain conditions
set forth in the Indenture, which provisions apply to this Security.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of, and the Make-Whole Amount, if any,
on, the Securities of this series 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, unless
the principal of all of the Securities of this series at the time Outstanding
shall already have become due and payable, the Holder of this Security 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 Securities of this series, the
Holders of not less than 25% in principal amount of the Securities of this
series 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 the Trustee shall not have received from
the Holders of a majority in principal amount of Securities of this series at
the time Outstanding a direction inconsistent with such request, and the Trustee
shall have failed to institute any such proceeding for 60 days after receipt of
such notice, request and offer of indemnity. The foregoing shall not apply to
any suit instituted by the Holder of this Security 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
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series of Securities then Outstanding affected
thereby. The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the
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Holders of all Securities of such series, to waive compliance by the Company
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 Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security 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 Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of, Make-Whole Amount, if
any, on, and interest on this Security 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 Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any Place of Payment where the principal of,
Make-Whole Amount, if any, on, and interest on this Security are payable duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities 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,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities 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 Company 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 Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
No recourse under or upon any obligation, covenant or agreement
contained in the Indenture or in this Security, or because of any indebtedness
evidenced thereby, shall be had against any promoter, as such, or against any
past, present or future shareholder, officer or trustee, as such, of the Company
or of any successor, either directly or through the Company or any successor,
under any rule of law, statute or constitutional provision or by the enforcement
of any assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of this Security
by the Holder thereof and as part of the consideration for the issue of the
Securities of this series.
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All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE SECURITIES, INCLUDING THIS SECURITY, 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 Company has caused "CUSIP" numbers to be
printed on the Securities of this series as a convenience to the Holders of such
Securities. No representation is made as to the correctness or accuracy of such
CUSIP numbers as printed on the Securities, and reliance may be placed only on
the other identification numbers printed hereon.
[THIS SPACE INTENTIONALLY LEFT BLANK.]
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Unless the certificate of authentication hereon has been executed by or
on behalf of the Trustee by manual signature, this Security shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed by the undersigned officer.
Archstone-Xxxxx Operating Trust
By:
--------------------------
Name:
Title:
Attest
By:
-------------------------------
Name:
Title:
Dated: July __, 2004
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION, as Trustee
By:
-------------------------------
Authorized Officer
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ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
---------------------------------------
(Please Print or Typewrite Name and Address including
Zip Code of Assignee)
the within Security of Archstone-Xxxxx Operating Trust and hereby does
irrevocably constitute and appoint
--------------------------------------------------------------------------------
Attorney to transfer said Security on the books of the within named Company with
full power of substitution in the premises.
Dated:
-------------------------------
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Security in every particular, without
alteration or enlargement or any change whatever.
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