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SIXTEENTH SUPPLEMENTAL INDENTURE
SIXTEENTH SUPPLEMENTAL INDENTURE, dated as of December 11, 2000 (this
"Sixteenth Supplemental Indenture"), among Xxxxxxx Properties, Inc., a
corporation organized under the laws of Maryland (the "General Partner"),
Xxxxxxx Properties, L.P., a limited partnership organized under the laws of
California (the "Issuer"), and U.S. Bank Trust National Association, as Trustee
(the "Trustee").
W I T N E S S E T H:
WHEREAS, the Issuer, the General Partner and State Street Bank and Trust
Company ("State Street") executed and delivered an Indenture, dated as of
December 6, 1995 (as supplemented hereby, the "Indenture"), to provide for the
issuance by the Issuer from time to time of debt securities evidencing its
unsecured indebtedness;
WHEREAS, pursuant to the Ninth Supplemental Indenture, the Issuer and the
General Partner appointed the Trustee as trustee with respect to the series of
securities established by that Supplemental Indenture and future series of
securities under the Indenture, and the Trustee accepted such appointment;
WHEREAS, pursuant to the Ninth Supplemental Indenture, State Street remains
trustee of all series of securities prior to those established by the Ninth
Supplemental Indenture;
WHEREAS, pursuant to Board Resolution, the Issuer has authorized the
issuance of $200,000,000 of its 7.65% Notes Due December 15, 2010 (the "Notes");
WHEREAS, the Issuer desires to establish the terms of the Notes in
accordance with Section 301 of the Indenture and to establish the form of the
Notes in accordance with Section 201 of the Indenture.
ARTICLE 1
TERMS
SECTION 101. TERMS OF NOTES. The following terms relating to the Notes are
hereby established.
(1) The Notes shall constitute a series of Securities having the title
"7.65% Notes Due December 15, 2010."
(2) The aggregate principal amount of the Notes that may be
authenticated and delivered under the Indenture (except for Notes
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and delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Notes pursuant to Sections 304, 305, 306, 906, 1107 or 1305
of the Indenture) shall be up to $200,000,000.
(3) The entire outstanding principal of the Notes shall be payable on
December 15, 2010 (the "Stated Maturity Date").
(4) The rate at which the Notes shall bear interest shall be 7.65%;
the date from which interest on the Notes shall accrue shall be December
11, 2000; the Interest Payment Dates for the Notes on which interest will
be payable shall be June 15 and December 15 in each year, beginning June
15, 2001, the Regular Record Dates for the interest payable on the 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 of Payment where the principal of and interest on the
Notes shall be payable and Notes may be surrendered for the registration of
transfer or exchange shall be the Corporate Trust Office of the Trustee in
St. Xxxx, Minnesota. The place where notices or demands to or upon the
Issuer in respect of the Notes and the Indenture may be served shall be the
corporate trust office of the Trustee at Xxx Xxxxxxxxxx Xxxxxx, Xxxxx 0000,
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000.
(6) (A) The 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 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
Notes (or portion thereof) (the "Redemption Price").
If notice has been given as provided in the Indenture and funds
for the redemption of any Notes (or any portion thereof) called for
redemption shall have been made available on the redemption date referred
to in such notice, such 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 Notes will be to receive payment of
the Redemption Price, with respect to such Notes or portion thereof so
redeemed.
Notice of any optional redemption of any Notes (or any portion
thereof) will be given to Holders at their addresses, as shown in the
security register for the 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 Notes held by such Holder to be redeemed. On the third Business Day
preceding the date notice of redemption is given, the Company will notify
the Trustee of the Redemption Price and the Trustee may rely and shall be
fully protected in acting upon the determination of the Company as to such
Redemption Price.
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The Issuer will notify the Trustee in writing at least 45 days
prior to giving notice of redemption (or such shorter period as is
satisfactory to the Trustee in its sole discretion) of the aggregate
principal amount of Notes to be redeemed and their redemption date. If less
than all the Notes are to be redeemed at the option of the Issuer, the
Trustee shall select by lot, the Notes to be redeemed in whole or in part.
In the event of redemption of the Notes in part only, a new 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 Notes, the excess, if any, of (i)
the aggregate present value as of the date of such redemption or
accelerated payment of each dollar of principal being redeemed or paid and
the amount of interest (exclusive of interest accrued to the date of
redemption or accelerated payment) that would have been payable in respect
of each such dollar if such redemption or accelerated payment had not been
made, determined by discounting, on a semi-annual basis, such principal and
interest at the Reinvestment Rate (determined on the third Business Day
preceding the date such notice of redemption is given or declaration of
acceleration is made) from the respective dates on which such principal and
interest would have been payable if such redemption or accelerated payment
had not been made, over (ii) the aggregate principal amount of the 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 Notes shall not be redeemable at the option of any Holder
thereof, upon the occurrence of any particular circumstances or otherwise.
The Notes will not have the benefit of any sinking fund.
(8) The 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
for the Notes.
(10) The entire outstanding principal amount plus the Make-Whole
Amount of the 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 Notes shall be
made in U.S. Dollars, and the Notes shall be denominated in U.S. Dollars.
(12) The 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 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 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 Notes, which shall be effective
only for so long as any of the Notes are Outstanding:
Limitations On Incurrence of Debt. The Issuer will not, and will
not permit any Subsidiary to, incur any Debt (as defined below), other
than inter-company debt representing Debt to which the only parties
are Xxxxxxx Properties, Inc., a Maryland corporation (the "General
Partner"), the Issuer and any of their Subsidiaries (but only so long
as such Debt is held solely by any of the General Partner, the Issuer
and any Subsidiary) that is subordinate in right of payment to the
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
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Partner if filed by the Issuer with the Trustee in lieu of filing its
own reports) prior to the incurrence of such additional Debt and (ii)
the increase in Total Assets from the end of such quarter including,
without limitation, any increase in Total Assets resulting from the
incurrence of such additional Debt (such increase, together with the
Total Assets, is referred to as "Adjusted Total Assets").
In addition to the foregoing limitation on the incurrence of
Debt, the Issuer will not, and will not permit any Subsidiary to,
incur any Debt if the ratio of Consolidated Income Available for Debt
Service to the Annual Service Charge (in each case as defined below)
for the four consecutive fiscal quarters most recently ended prior to
the date on which such additional Debt is to be incurred shall have
been less than 1.5 to 1, on a pro forma basis after giving effect to
the incurrence of such Debt and to the application of the proceeds
therefrom, and calculated on the assumption that (i) such Debt and any
other Debt incurred by the Issuer or its Subsidiaries since the first
day of such four-quarter period and the application of the proceeds
therefrom, including to refinance other Debt, had occurred at the
beginning of such period, (ii) the repayment or retirement of any
other Debt by the Issuer or its Subsidiaries since the first day of
such four-quarter period had been incurred, repaid or retired at the
beginning of such period (except that, in making such computation, the
amount of Debt under any revolving credit facility shall be computed
based upon the average daily balance of such Debt during such period),
(iii) the income earned on any increase in Adjusted Total Assets since
the end of such four-quarter period had been earned, on an annualized
basis, during such period, and (iv) in the case of any acquisition or
disposition by the Issuer or any Subsidiary of any asset or group of
assets since the first day of such four-quarter period, including,
without limitation, by merger, stock purchase or sale, or asset
purchase or sale, such acquisition or disposition or any related
repayment of Debt had occurred as of the first day of such period with
the appropriate adjustments with respect to such acquisition or
disposition being included in such pro forma calculation.
In addition to the foregoing limitations on the incurrence of
Debt, the Issuer will not, and will not permit any Subsidiary to,
incur any Debt secured by any mortgage, lien, charge, pledge,
encumbrance or security interest of any kind upon any of the property
of the Issuer or any Subsidiary ("Secured Debt"), whether owned at the
date of the Indenture or thereafter acquired, if, immediately after
giving effect to the incurrence of such additional Secured Debt, the
aggregate principal amount of all outstanding Secured Debt is greater
than 40% of Adjusted Total Assets.
For purposes of the foregoing provisions regarding the limitation
on the incurrence of Debt, Debt shall be deemed to be "incurred" by
the Issuer or a
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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, Notes or similar instruments, (ii) indebtedness secured by any
mortgage, pledge, lien, charge, encumbrance or any security interest
existing on property owned by the Issuer or such Subsidiary, (iii) the
reimbursement obligations, contingent or otherwise, in connection with
any letters of credit actually issued or amounts representing the
balance that constitutes an accrued expense or trade payable or (iv)
any lease of property by the Issuer or such Subsidiary as lessee which
is reflected in the Issuer's consolidated balance sheet as a
capitalized lease in accordance with generally accepted accounting
principles, in the case of items of indebtedness under (i) through
(iii) above to the extent that any such items (other than letters of
credit) would appear as a liability on the Issuer's consolidated
balance sheet in accordance with generally accepted accounting
principles, and also includes, to the extent not otherwise included,
any obligation by the Issuer or such Subsidiary to be liable for, or
to pay, as obligor, guarantor or otherwise (other than for
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purposes of collection in the ordinary course of business),
indebtedness of another person (other than the Issuer or any
Subsidiary).
"Subsidiary" means a corporation, partnership or limited
liability company, a majority of the outstanding voting stock,
partnership interests or membership interests, as the case may be, of
which is owned or controlled, directly or indirectly, by the Issuer or
by one or more other Subsidiaries of the Issuer. For the purposes of
this definition, "voting stock" means stock having the voting power
for the election of directors, general partners, managers or trustees,
as the case may be, whether at all times or only so long as no senior
class of stock has such voting power by reason of any contingency.
"Total Assets" as of any date means the sum of (i) Undepreciated
Real Estate Assets and (ii) all other assets of the Issuer and its
Subsidiaries on a consolidated basis determined in accordance with
generally accepted accounting principles (but excluding intangibles
and accounts receivable).
"Total Unencumbered Assets" as of any date means the sum of (i)
those Undepreciated Real Estate Assets which have not been pledged,
mortgaged or otherwise encumbered by the owner thereof to secure Debt,
excluding infrastructure assessment bonds, and (ii) all other assets
of the Issuer and its Subsidiaries determined in accordance with
generally accepted accounting principles (but excluding intangibles
and accounts receivable) which have not been pledged, mortgaged or
otherwise encumbered by the owner thereof to secure Debt.
"Undepreciated Real Estate Assets" as of any date means the cost
(original cost plus capital improvements) of real estate assets of the
Issuer and its Subsidiaries on such date, before depreciation and
amortization, determined on a consolidated basis in accordance with
generally accepted accounting principles.
"Unsecured Debt" as of any date means Debt which is not secured
by any mortgage, lien, charge, pledge, encumbrance or security
interest of any kind upon any of the properties of the Issuer or any
Subsidiary.
(C) The Trustee shall not be obligated to monitor or confirm, on
a continuing basis or otherwise, the Issuer's compliance with the covenants
contained in this subsection or with respect to reports or other documents
filed under the Indenture; provided, however, that nothing herein shall
relieve the Trustee of any obligations to monitor the Issuer's timely
delivery of all reports and certificates required under Sections 703 and
1005 of the Indenture and to fulfill its obligations under Article Six of
the Indenture.
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(15) The Notes shall be issuable only as Registered Securities in
permanent global form (without coupons). Beneficial owners of interests in
the permanent global Notes may exchange such interests for 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 Note.
(16) The Notes shall not be issuable as Bearer Securities.
(17) Interest on any Note shall be payable only to the Person in whose
name that Note (or one or more predecessor 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 Notes.
(19) The 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 Notes.
(21) The Issuer shall not pay Additional Amounts with respect to the
Notes as contemplated by Section 1009 of the Indenture.
(22) The 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 NOTE. The form of the Note is attached hereto as Exhibit A.
ARTICLE II
MISCELLANEOUS
SECTION 201. DEFINITIONS. Capitalized terms used but not defined in this
Sixteenth Supplemental Indenture shall have the meanings ascribed thereto in the
Indenture.
SECTION 202. CONFIRMATION OF INDENTURE. The Indenture, as heretofore
supplemented and amended by this Sixteenth Supplemental Indenture, is in all
respects ratified and confirmed, and the Indenture, this Sixteenth 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 Sixteenth Supplemental
Indenture other than as set forth in the Indenture and, in carrying out its
responsibilities hereunder, shall have all of the rights, protections and
immunities which it possesses under the Indenture.
SECTION 204. GOVERNING LAW. This Sixteenth Supplemental Indenture, the
Indenture and the Securities shall be governed by and construed in accordance
with the law of the State of New York.
SECTION 205. SEPARABILITY. In case any provision in this Sixteenth
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 Sixteenth 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 Sixteenth
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/ Xxxxxx Xxxxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Chief Financial Officer
(seal)
Attest:
By: /s/ Xxxx Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President,
General Counsel and Secretary
XXXXXXX PROPERTIES, INC.
By: /s/ Xxxxxx Xxxxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Chief Financial Officer
(seal)
Attest:
By:/s/ Xxxx Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President,
General Counsel and Secretary
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U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxxxxxx Xxxxxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Assistant Vice President
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STATE OF California )
COUNTY OF San Mateo ) ss.:
On December 11, 2000, before me personally came Xxxxxx Xxxxxxxxx to me
known, who, being by me duly sworn, did depose and say that he is the 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 corporate 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
--------------------------------
[Seal]
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Exhibit A
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.: R-1 $200,000,000
CUSIP NO.: 848503 AP 3
XXXXXXX PROPERTIES, L.P.
7.65% NOTE DUE DECEMBER 15, 2010
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 $200,000,000 on December
15, 2010, and to pay interest on the outstanding principal amount thereon from
December 11, 2000, 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, 2001, and at the Stated Maturity, at the rate of 7.65% per annum, computed
on the basis of a 360-day year comprised of twelve 30-day months, until the
entire principal amount hereof is paid or duly provided for. The interest so
payable, and punctually paid or duly provided for on any Interest Payment Date
will, as provided in the Indenture (hereinafter defined), be paid to the person
in whose name this Note (the "Note") (or one or more predecessor 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
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cease to be payable to the Holder on such Regular Record Date, and may either be
paid to the Person in whose name this Note (or one or more predecessor 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 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 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 Note will be made at the office or agency of the
Trustee (hereinafter defined) maintained for that purpose at 000 X. Xxxxx
Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000, or elsewhere as provided in the Indenture, in
United States Dollars; provided, however, that at the option of the Holder
hereof, and upon written notice to the Trustee of not less than five Business
Days prior to the applicable Interest Payment Date, payment of interest may be
made by (i) check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register kept for the Notes pursuant to
Section 305 of the Indenture (the "Note Register") or (ii) transfer to an
account of the Person entitled thereto located inside the United States.
This 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 as supplemented by the Sixteenth Supplemental
Indenture dated December 11, 2000 (collectively, the "Indenture"), among the
Issuer and U.S. Bank Trust National Association (the "Trustee," which term
includes any successor trustee under the Indenture with respect to the Notes),
to which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Issuer, the Trustee and the Holders of the Notes,
and of the terms upon which the Notes are, and are to be, authenticated and
delivered. This Note is one of the series designated as the "7.65% Notes Due
December 15, 2010," limited in the aggregate principal amount to $200,000,000.
The 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 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 Notes (or
portion thereof).
If notice has been given as provided in the Indenture and funds for the
redemption of any Notes (or any portion thereof) called for redemption shall
have been made available on the redemption date referred to in such notice, such
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 Notes will be to receive payment of the Redemption Price, with respect to
such Notes or portion thereof so redeemed.
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Notice of any optional redemption of any Notes (or any portion thereof)
will be given to Holders at their addresses, as shown in the 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 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 Notes to be redeemed and their redemption date. If
less than all the 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
Notes to be redeemed in whole or in part.
In the event of redemption of the Notes in part only, a new 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 Notes, the excess, if any, of (i) the
aggregate present value as of the date of such redemption or accelerated
payment of each dollar of principal being redeemed or paid and the amount
of interest (exclusive of interest accrued to the date of redemption or
accelerated payment) that would have been payable in respect of each such
dollar if such redemption or accelerated payment had not been made,
determined by discounting, on a semi-annual basis, such principal and
interest at the Reinvestment Rate (determined on the third Business Day
preceding the date such notice of redemption is given or declaration of
acceleration is made) from the respective dates on which such principal and
interest would have been payable if such redemption or accelerated payment
had not been made, over (ii) the aggregate principal amount of the 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.
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"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 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 Note.
The Issuer is subject to certain covenants contained in the Indenture with
respect to, and for the benefit of the Holders of, the Notes. 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 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
Notes shall occur and be continuing, the principal of the 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 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
Notes, the Holders of not less than a majority in principal amount of the 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 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 Note for the enforcement of any payment of
principal hereof or any interest on or after the respective due dates expressed
herein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer and the Trustee with the consent of the Holders of not less
than a majority in principal amount of the Outstanding Notes. The Indenture also
contains provisions permitting the Holders of not less than a majority in
principal amount of the Notes at the time Outstanding, on behalf of the Holders
of all Notes, to
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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 Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any 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
Note.
No reference herein to the Indenture and no provision of this 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 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 Note is registrable in the Note Register, upon
surrender of this 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
Note are payable, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Issuer and the Security Registrar for the
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 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 Notes are exchangeable for a like aggregate principal amount of 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 Note for registration of transfer, the
Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Issuer, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
THE INDENTURE AND THE NOTES INCLUDING THIS 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 Notes as a convenience to the Holders of the Notes. No
representation is made as to the correctness or
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accuracy of such CUSIP numbers as printed on the 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 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, 2000.
XXXXXXX PROPERTIES, L.P.
By: Xxxxxxx Properties, Inc., as
General Partner
By:
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Name: Xxxxxx Xxxxxxxxx
Title: Chief Financial Officer
[SEAL]
Attest:
By:
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Name: Xxxx X. Xxxxxx
Title: Senior Vice President,
General Counsel and Secretary
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated "7.65% Notes Due December
15, 2010" referred to in the within-mentioned Indenture.
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By:
----------------------------------
Name:
Title:
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ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers to
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(Insert Social Security number or other identifying number of assignee)
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(Please print or typewrite name and address, including zip, code of assignee)
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the within Note of Xxxxxxx Properties, L.P. and hereby does irrevocably
constitute and appoint
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Attorney to transfer said Note on the books of the within-named Issuer with full
power of substitution in the premises.
Dated:
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-----------------------------------
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 Note in every particular, without
alteration or enlargement or any change whatever.
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