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EXHIBIT 99.17.9
FIFTH SUPPLEMENTAL INDENTURE
FIFTH SUPPLEMENTAL INDENTURE, dated as of June 20, 1996 (the "Fifth
Supplemental Indenture"), among Xxxxxxx Properties, L.P., a limited partnership
organized under the laws of California (the "Issuer"), Xxxxxxx Properties, Inc.,
a Maryland corporation, (the "General Partner"), and State Street Bank and Trust
Company, as Trustee (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Issuer, the General Partner and the Trustee executed and
delivered an Indenture, dated as of December 6, 1995, and the first supplemental
indenture, second supplemental indenture and third supplemental indenture, each
dated December 11, 1995, and the fourth supplemental indenture dated January 24,
1996 (collectively, and 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 up to $200,000,000 of its medium term notes (the "Medium Term
Notes");
WHEREAS, the Issuer and the General Partner have entered into a
distribution agreement (the "Distribution Agreement") with Xxxxxxx Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxx Xxxxxx Xxxxxxxx Inc.,
Xxxxxxx, Xxxxx & Co. and X.X. Xxxxxx Securities Inc. (each an "Agent" and,
together with any other agents that the Issuer may elect to add pursuant to the
terms of the Distribution Agreement, the "Agents") pursuant to which the Medium
Term Notes will be offered to the public from time to time by the Issuer through
the Agents, each of which, if agreed to by the Issuer and the applicable Agent,
has agreed to purchase the Medium Term Notes as principal for resale or to use
its reasonable efforts to solicit offers to purchase Medium Term Notes which
offers may be accepted by the Issuer from time to time. The Issuer also may sell
Medium Term Notes directly to Investors on its own behalf in those jurisdictions
where it is authorized to do so.
WHEREAS, the Issuer desires to establish the terms of the Medium Term
Notes in accordance with Sections 301 and 303 of the Indenture and to establish
the form of Medium Term Notes in accordance with Section 201 of the Indenture.
ARTICLE 1
TERMS
SECTION 101. TERMS OF MEDIUM TERM NOTES. The following terms relating to
the Medium Term Notes are hereby established:
(1) The Medium Term Notes shall constitute a series of Securities
having the title "Medium Term Notes."
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(2) The aggregate principal amount of the Medium Term Notes that may
be authenticated and delivered under the Indenture (except for Medium Term
Notes authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Medium Term Notes pursuant to Sections
304, 305, 306, 906, 1107 or 1305 of the Indenture) shall be up to
$200,000,000. The date of issuance, interest rate, date from which
interest shall accrue, issue price, maturity, redemption provisions, if
any, and any other terms of any Medium Term Notes may be established from
time to time by any officer of the General Partner and shall be set forth
in an Issuer Order delivered to the Trustee and the pricing supplement
applicable to such Medium Term Notes (the "Pricing Supplement") which
supplements the Prospectus Supplement, dated June 20, 1996, to the
Prospectus dated June 20, 1996, included in the Registration Statement on
Form S-3 (No. 333-04299). The Issuer shall use its reasonable best efforts
to send to the Trustee a copy of the Pricing Supplement by telecopy or
overnight express mail, in each case, for delivery by the close of
business on the applicable trade date (but in no event later than 11:00
a.m. New York City time on the Business Day following the applicable trade
date.)
(3) The date or dates, or the method by which such date or dates are
determined on which the outstanding principal of the Medium Term Notes
become payable may be established from time to time by an Officer of the
General Partner and shall be set forth in the applicable Pricing
Supplement.
(4) Unless stated to the contrary on the face of any Medium Term
Note and in the applicable Issuer Order and Pricing Supplement, the Medium
Term Notes will bear interest at a fixed rate or at floating rates. Such
fixed rate or floating rates or the method by which such fixed rate or
floating rates shall be determined, the date or dates from which such
interest shall accrue, or the method by which such date or dates is
determined, the Interest Payment Dates on which such interest will be
payable and the Regular Record Date, if any, for the interest payable on
the Medium Term Notes on any Interest Payment Date, or the method by which
such date is determined, and the basis upon which interest shall be
calculated if other than that of a 360-day year of twelve 30-day months,
may be established from time to time by an officer of the General Partner
and shall be set forth in the related Issuer Order and applicable Pricing
Supplement. If so specified on the face of any Medium Term Note and the
related Issuer Order and applicable Pricing Supplement, such Medium Term
Note may be issued at a price less than its stated redemption price at
maturity and may pay no interest or interest at a rate that is below
market at the time of issuance.
(5) Unless stated to the contrary on the face of any Medium Term
Note and in the related Issuer Order applicable Pricing Supplement, the
Medium Term Notes and issued from time to time shall be in Book-Entry
Form, and payment of principal of, and premium and interest, if any, on
such Medium Term Notes will be made by the Issuer through the Trustee to
the DTC. If the Medium Term
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Notes are registered in Definitive Form, the place where the principal of
or premium, if any, at the Maturity of each such Medium Term Note shall be
payable, and Medium Term Notes may be surrendered for the registration of
transfer or exchange and the place where notices or demands to or upon the
Issuer in respect of the Medium Term Notes and the Indenture may be served
shall be, the Corporate Trust Office of the Trustee, and with respect to
the surrender of such Notes, the Trustee's New York City office, 00
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (each such office a "Place of
Payment"), or at such other place as the Issuer shall designate. Payment
of interest due on Definitive Notes on any Interest Payment Date other
than the Stated Maturity will be made at the applicable Place of Payment
or, at the option of the Issuer, may be made by check mailed to the
address of the person entitled thereto as such address shall appear on the
Security Register maintained at the Corporate Trust Office.; provided,
however, a Holder of $10 million or more in aggregate principal amount of
Notes (whether having identical or different terms and provisions) will be
entitled to receive interest payments, if any, on any Interest Payment
Date, other than at Maturity by wire transfer of immediately available
funds if appropriate wire transfer instructions have been received in
writing by the Trustee not less than 15 days prior to such Interest
Payment Date. Any such wire transfer instructions received by the Trustee
shall remain in effect until revoked by such Holder.
(6) Unless stated to the contrary on the face of any Medium Term
Note and in the applicable Pricing Supplement, such Medium Term Note is
not subject to redemption. If stated on the face of any Medium Term Note
and in the applicable Issuer Order and Pricing Supplement that such Medium
Term Note is subject to redemption, the Medium Term Note may be redeemed
at any time after the initial redemption date specified on the face of the
Medium Term Note and in the applicable Pricing Supplement, at the option
of the Issuer, in whole or from time to time in part, at the Redemption
Price (as defined in the Medium Term Notes) and in accordance with the
provisions set forth in the Medium Term Note and the Indenture.
In the event of redemption of the Medium Term Notes in part only, a
new Medium Term Note for the amount of the unredeemed portion thereof
shall be issued in the name of the Holder thereto, upon cancellation
thereof.
(7) If provided on the face of any Medium Term Note and in the
applicable Issuer Order and Pricing Supplement, the Medium Term Notes will
be subject to repayment, in whole or in part, on a given day or days prior
to their Maturity at the option of the Holders thereof in accordance with
the terms of such Medium Term Notes on their respective optional repayment
dates, if any, as agreed upon by the Issuer and the purchasers thereof at
the time of such sale. Unless stated to the contrary on the face of any
Medium Term Note and in the applicable Issuer Order and Pricing
Supplement, the Medium Term Notes will not have the benefit of any sinking
fund.
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(8) The Medium Term Notes shall be issuable in denominations of
$1,000 and any integral multiple thereof, or in the authorized amount
specified on the face of the Medium Term Note and in the applicable
Pricing Supplement.
(9) The Trustee shall be the Security Registrar, Paying Agent and
Calculation Agent for the Notes in accordance with the terms of a certain
Interest Calculation Agency Agreement dated as of June 20, 1996.
(10) The entire issued and outstanding principal amount of the
Medium Term 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 Medium Term
Notes shall be made in U.S. Dollars, and the Medium Term Notes shall be
denominated in U.S. Dollars.
(12) The Medium Term 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) Unless stated to the contrary on the face of any Medium Term
Note or in the applicable Issuer Order and Pricing Supplement, the Holders
of the Medium Term 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 Medium Term 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 Medium Term Notes, which shall
be effective only for so long as any of the Medium Term 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 General Partner, the Issuer and any of their
Subsidiaries (but only so long as such Debt is held solely by any of
the General Partner, the Issuer and any Subsidiary) that is
subordinate in right of payment to the Medium Term Notes if,
immediately after giving effect to the incurrence of such additional
Debt, the aggregate principal amount of all outstanding Debt of the
Issuer and its Subsidiaries on a consolidated basis is greater than
60% of the sum of (i) Total Assets (as defined below) as of the end
of the calendar quarter covered in the Issuer's Annual Report on
Form 10-K or Quarterly Report on Form 10-Q, as the case may be, most
recently filed with the Trustee (or such reports of the General
Partner if filed by the
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Issuer with the Trustee in lieu of filing its own reports) prior to
the incurrence of such additional Debt and (ii) the increase in
Total Assets from the end of such quarter including, without
limitation, any increase in Total Assets resulting from the
incurrence of such additional Debt (such increase, together with the
Total Assets, is referred to as "Adjusted Total Assets").
In addition to the foregoing limitation on the incurrence of
Debt, the Issuer will not, and will not permit any Subsidiary to,
incur any Debt if the ratio of Consolidated Income Available for
Debt Service to the Annual Service Charge (in each case as defined
below) for the four consecutive fiscal quarters most recently ended
prior to the date on which such additional Debt is to be incurred
shall have been less than 1.5 to 1, on a pro forma basis after
giving effect to the incurrence of such Debt and to the application
of the proceeds therefrom, and calculated on the assumption that (i)
such Debt and any other Debt incurred by the Issuer or its
Subsidiaries since the first day of such four-quarter period and the
application of 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
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"incurred" by the Issuer or a Subsidiary whenever the Issuer and its
Subsidiary shall create, assume, guarantee or otherwise become
liable in respect thereof.
Maintenance of Total Unencumbered Assets. The Issuer is
required to maintain Total Unencumbered Assets of not less than 165%
of the aggregate outstanding principal amount of all outstanding
Unsecured Debt.
As used herein:
"Annual Service Charge" as of any date means the amount
which is expensed in any 12-month period for interest on Debt of the
Issuer and its Subsidiaries.
"Consolidated Income Available For Debt Service" for any
period means Consolidated Net Income plus amounts which have been
deducted for (a) interest on Debt of the Issuer and its
Subsidiaries, (b) provision for taxes of the Issuer and its
Subsidiaries based on income, (c) amortization of Debt discount, (d)
provisions for gains and losses on properties, (e) depreciation and
amortization, (f) the effect of any noncash charge resulting from a
change in 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, and 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
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included, any obligation by the Issuer or such Subsidiary to be
liable for, or to pay, as obligor, General Partner 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
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and certificates required under Sections 703 and 1005 of the Indenture and to
fulfill its obligations under Article Six of the Indenture.
(15) Unless stated to the contrary on the face of any Medium Term
Note and in the applicable Issuer Order and Pricing Supplement, the Medium
Term Notes shall be issuable as Registered Securities in permanent global
form (without coupons). Beneficial owners of interests in the permanent
global Medium Term Notes may not exchange such interests for Medium Term
Notes of like tenor or any authorized form and denomination except as
otherwise provided in Section 305 of the Indenture. DTC shall be the
depository with respect to the permanent global Medium Term Notes and such
Notes shall be registered in the name of Cede & Co.
(16) The Medium Term Notes shall not be issuable as Bearer
Securities.
(17) Interest on any Medium Term Note shall be payable only to the
Person in whose name that Medium Term Note (or one or more predecessor
Medium Term Notes thereof) is registered at the close of business on the
Regular Record Date for such interest.
(18) Unless stated to the contrary on the face of any Medium Term
Note and in the applicable Issuer Order and Pricing Supplement, sections
1402 and 1403 of the Indenture shall be applicable to the Medium Term
Notes.
(19) Unless stated to the contrary on the face of any Medium Term
Note and in the applicable Pricing Supplement, the Medium Term Notes shall
not be issuable in definitive form except under the circumstances
described in Section 305 of the Indenture.
(20) Articles Sixteen and Seventeen of the Indenture shall not be
applicable to the Medium Term Notes.
(21) Unless stated to the contrary on the face of any Medium Term
Note and in the applicable Pricing Supplement, the Issuer shall not pay
Additional Amounts with respect to the Medium Term Notes as contemplated
by Section 1009 of the Indenture.
(22) The Medium Term Notes shall not be subordinated to any other
debt of the Issuer, and shall constitute senior unsecured obligations of
the Issuer.
SECTION 102. FORMS OF MEDIUM TERM NOTE. The forms of the Medium Term Note
are attached hereto as Exhibit A (fixed rate note) and Exhibit B (floating rate
note).
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SECTION 103. AUTHENTICATION AND DELIVERY. Notwithstanding the provisions
of Section 303 of the Indenture, the Trustee shall authenticate and deliver from
time to time Medium Term Notes in such authorized amounts and on such terms as
are set forth in the related Issuer Order and Pricing Supplement and consistent
herewith and, in authenticating such Medium Term Notes, shall be entitled to
receive and shall be fully protected in relying upon an Officers' Certificate
(which need not be accompanied by an Opinion of Counsel).
ARTICLE II
MISCELLANEOUS
SECTION 201. DEFINITIONS. Capitalized terms used but not defined in this
Fifth Supplemental Indenture shall have the meanings ascribed thereto in the
Indenture.
SECTION 202. CONFIRMATION OF INDENTURE. The Indenture, as heretofore
supplemented and amended and as supplemented and amended by this Fifth
Supplemental Indenture, is in all respects ratified and confirmed, and the
Indenture, this Fifth Supplemental Indenture and all indentures supplemental
thereto shall be read, taken and construed as one and the same instrument.
SECTION 203. CONCERNING THE TRUSTEE. The Trustee assumes no duties,
responsibilities or liabilities by reason of this Fifth Supplemental Indenture
other than as set forth in the Indenture prior to being supplemented hereby.
SECTION 204. GOVERNING LAW. This Fifth Supplemental Indenture, the
Indenture and the Medium Term Notes 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 Fifth
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 Fifth 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 Fifth Supplemental
Indenture to be duly executed, and the corporate seal of the General Partner to
be hereunto affixed and attested, as of the day and year first above written.
XXXXXXX PROPERTIES, L.P.
By: Xxxxxxx Properties, Inc.
as General Partner
By: /S/
-----------------------------
Name:
Title:
(seal)
Attest:
By: /S/
----------------------------
Name:
Title:
XXXXXXX PROPERTIES, INC.
By: /S/
-----------------------------
Name:
Title:
Attest:
By: /S/
----------------------------
Name:
Title:
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By: /S/
-----------------------------
Name:
Title:
Attest:
By: /S/
----------------------------
Name:
Title:
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STATE OF )
COUNTY OF ) ss.:
On the ______ day of ________________, 1995, before me personally came
_________________ to me known, who, being by me duly sworn, did depose and say
that he is the ____________________ of Xxxxxxx Properties, Inc., one of the
entities described in and which executed the above instrument; that he knows the
corporate seal of said corporation; that the seal affixed to the said instrument
is such corporation seal; that it was so affixed by authority of the
corporation, and that he signed his name thereto by like authority.
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