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EXHIBIT 99.17.7
FOURTH SUPPLEMENTAL INDENTURE
FOURTH SUPPLEMENTAL INDENTURE, dated as of January 24, 1996 (this
"Fourth 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 State Street Bank and Trust Company, a Trustee (the
"Trustee").
WITNESSETH:
WHEREAS, the Issuer, the General Partner and the Trustee executed and
delivered an indenture, dated as of December 6, 1995 (as supplemented hereby,
the "Indenture"), to provide for the issuance by the Issuer from time to time of
debt securities evidencing its unsecured indebtedness;
WHEREAS, pursuant to Board Resolution, the Issuer has authorized the
issuance of 00,000,000 of its 6.90% Notes Due January 15, 2004 (the "2004
Notes");
WHEREAS, the Issuer desires to establish the terms of the 2004 Notes in
accordance with Section 301 of the Indenture and to establish the form of the
2004 Notes in accordance with Section 201 of the Indenture.
ARTICLE 1
TERMS
SECTION 101. TERMS OF 2004 NOTES. The following terms relating to the
2004 Notes are hereby established:
(1) The 2004 Notes shall constitute a series of Securities
having the title "6.90% Notes Due January 15, 2004."
(2) The aggregate principal amount of the 2004 Notes that
may be authenticated and delivered under the Indenture (except for 2004
Notes authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other 2004 Notes pursuant to Sections
304, 305, 306, 906, 1107 or 1305 of the Indenture) shall be up to
$100,000,000.
(3) The entire outstanding principal of the 2004 Notes shall
be payable on January 15, 2004 (the "Stated Maturity Date").
(4) The rate at which the 2004 Notes shall bear interest
shall be 6.90%; the date from which interest shall accrue shall be
January 24, 1996; the Interest Payment Dates for the 2004 Notes on which
interest will be payable shall be January 15 and July 15 in each year,
beginning July 15, 1996; the Regular Record Dates for the interest
payable on the 2004 Notes on any Interest Payment Date shall be the 15th
calendar day preceding the applicable Interest Payment
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Date shall be the 15th calendar day preceding the applicable Interest
Payment Date; and the basis upon which interest shall be calculated
shall be that of a 360-day year consisting of twelve 30-day months.
(5) The place where the principal of and interest on the
2004 Notes shall be payable and 2004 Notes may be surrendered for the
registration of transfer or exchange shall be the Corporate Trust Office
of the Trustee which, as of this writing, is located at Xxx
Xxxxxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000. The place where
notices or demands to or upon the Issuer in respect of the 2004 Notes
and the Indenture may be served shall be the Corporate Trust Office of
the Trustee.
(6) (A) The 2004 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
2004 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 2004 Notes (or portion
thereof) (the "Redemption Price").
If notice has been given as provided in the Indenture
and funds for the redemption of any 2004 Notes (or any portion
thereof) called for redemption shall have been made available on
the redemption date referred to in such notice, such 2004 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 2004 Notes will be to receive
payment of the Redemption Price, with respect to such 2004 Notes
or portion thereof so redeemed.
Notice of any optional redemption of any 2004 Notes (or
any portion thereof) will be given to Holders at their
addresses, as shown in the security register for the 2004 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 2004 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 Price.
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 2004 Notes to be redeemed and their redemption date.
If less than all the 2004 Notes are to be redeemed at the option
of the Issuer, the Trustee shall select, in such
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manner as it shall deem fair and appropriate, the 2004 Notes to
be redeemed in whole or in part.
In the event of redemption of the 2004 Notes in part
only, a new 2004 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 2004 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 2004 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
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determination under the Indenture, then such other reasonably
comparable index which shall be designated by the Issuer.
(7) The 2004 Notes shall not be redeemable at the option of
any Holder thereof, upon the occurrence of any particular circumstances
or otherwise. The 2004 Notes will not have the benefit of any sinking
fund.
(8) The 2004 Notes shall be issuable in denominations of
$1,000 and any integral multiple thereof.
(9) The Trustee shall also be the Security Registrar and
Paying Agent.
(10) The entire outstanding principal amount plus the
Make-Whole Amount of the 2004 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 2004
Notes shall be made in U.S. Dollars, and the 2004 Notes shall be
denominated in U.S. Dollars.
(12) The 2004 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 2004 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 2004 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 2004 Notes,
which shall be effective only for so long as any of the 2004 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 2004
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
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(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 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.
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For the purposes of the foregoing provisions
regarding the limitation on the incurrence of Debt, Debt shall
be deemed to be "incurred" by the Issuer or a Subsidiary
whenever the Issuer and its 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 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
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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 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
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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.
(15) The 2004 Notes shall be issuable only as Registered
Securities in permanent global form (without coupons). Beneficial owners
of interests in the permanent global 2004 Notes may exchange such
interests for 2004 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 2004 Note.
(16) The 2004 Notes shall not be issuable as Bearer
Securities.
(17) Interest on any 2004 Note shall be payable only to the
Person in whose name that 2004 Note (or one or more predecessor 2004
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 2004 Notes.
(19) The 2004 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 2004 Notes.
(21) The Issuer shall not pay Additional Amounts with respect
to the 2004 Notes as contemplated by Section 1009 of the Indenture.
(22) The 2004 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 2004 NOTE. The form of the 2004 Note is attached
hereto as Exhibit A.
ARTICLE II
MISCELLANEOUS
SECTION 201. DEFINITIONS. Capitalized terms used but not defined in
this Fourth 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 Fourth Supplemental Indenture, is in all
respects ratified and confirmed, and the Indenture, this Fourth Supplemental
Indenture
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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 Fourth 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 Fourth 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 Fourth
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 Fourth 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 Fourth
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/ XXXXX X. XXXXXX
------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
and Chief Financial Officer
(seal)
Attest:
By: /s/ XXXXXX X. XXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
& Secretary
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By:
------------------------------
Name:
Title:
Attest:
By:
------------------------------
Name:
Title:
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STATE OF CALIFORNIA )
COUNTY OF SAN MATEO ) ss.:
On the 22nd day of January, 1996, before me personally came Xxxxx X.
Xxxxxx to me known, who, being by me duly sworn, did depose and say that he is
the CFO & EVP 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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IN WITNESS WHEREOF, the parties hereto have caused this Fourth
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:
------------------------------
Name:
Title:
(seal)
Attest:
By:
------------------------------
Name:
Title:
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By: /s/ XXXX XXXXX
------------------------------
Name: Xxxx Xxxxx
Title: Assistant Vice President
Attest:
By: /s/ XXXXXX XXXXX BELLA
------------------------------
Name: XXXXXX XXXXX BELLA
Title: Assistant Secretary
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XXXXXXX PROPERTIES, INC.
BY: XXXXX X. XXXXXX
---------------------
NAME: Xxxxx X. Xxxxxx
Title: Executive Vice President
and Chief Financial Officer
(SEAL)
Attest:
BY: XXXXXX X. XXXXXX
------------------------------
NAME: Xxxxxx X. Xxxxxx
Title: Vice President and Secretary
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STATE OF CALIFORNIA )
COUNTY OF SAN MATEO ) ss.:
On the 28th day of January, 1996, before me personally came Xxxxx X. Xxxxxx
to me known, who, being by me duly sworn, did depose and say that he is the EVP
and CFO of Xxxxxxx Properties, Inc., one of the entities described in and which
executed the above instrument; that he knows the corporate seal of said
corporation; that the seal affixed to the said instrument is such 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]
XXXXX X. XXXXXXX
COMM. #1062971
NOTARY PUBLIC - CALIFORNIA
SAN MATEO COUNTY
MY COMM. EXPIRES JUN 25, 1999
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UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TO A
NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR
ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OR TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC). ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
REGISTERED PRINCIPAL AMOUNT
0.: $100,000,000
USIP NO.: 843503-ADO
XXXXXXX PROPERTIES, L.P.
6.90% NOTE DUE JANUARY 15, 2004
XXXXXXX PROPERTIES, L.P., a California limited partnership (the "Issuer"),
for value received, hereby promises to pay to Cede & Co., or registered assignee
(the "Holder"), upon presentation, the principal sum of $100,000,000 on January
15, 2004, and to pay interest on the outstanding principal amount thereon from
January 24, 1996, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semi-annually in arrears on January
15 and July 15 in each year (each an "Interest Payment Date"), commencing July
15, 1996, and at the Stated Maturity, at the rate of 6.90% per annum, computed
on the basis of a 60-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 "2004 Note") (or one or more predecessor 2004
Notes) is registered at the close of business on the Regular Record Date for
such Interest Payment Date which shall be the 15th calendar day preceding the
applicable Interest Payment Date. Any such interest not so punctually paid or
duly provided for shall forthwith cease to be payable to the Holder on such
Regular Record Date, and may either be paid to the Person in whose name this
2004 Note (or one or more predecessor 2004 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 2004 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 2004 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 2004 Note will be made at the office or agency of the Trustee (hereinafter
defined) maintained for that purpose at
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Two Xxxxxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or elsewhere as provided
in the Indenture, in United States Dollars; provided, however, that at the
option of the Holder hereof, and upon written notice to the Trustee of not less
than five Business Days prior to the applicable interest Payment Date, payment
of interest may be made by (i) check mailed to the address of the person
entitled thereto as such address shall appear in the Security Register kept for
the 2004 Notes pursuant to Section 305 of the Indenture (the "2004 Note
Register") or (ii) transfer to an account of the Person entitled thereto located
inside the United States.
This 2004 Note is one of a fully authorized issue of securities of the
Issuer issued as a series of securities issued and to be issued under an
Indenture, dated as of December 6, 1995 and the Fourth Supplemental Indenture
dated January 24, 1996 (collectively, the "Indenture"), among the Issuer and
State Street Bank and Trust Company (the "Trustee," which term includes any
trustee under the Indenture with respect to the 2004 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 2004 Notes, and of
the terms upon which the 2004 Notes are, and are to be, authenticated and
delivered. This 2004 Note is one of the series designated as the "6.90% Notes
Due January 15, 2004," limited in the aggregate principal amount to
$100,000,000.
The 2004 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 the principal amount of the 2004 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 2004
Notes (or portion thereof).
If notice has been given as provided in the Indenture and funds for the
redemption of any 2004 Notes (or any portion thereof) called for redemption
shall have been made available on the redemption date referred to in such
notice, such 2004 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 2004 Notes will be to receive payment of the Redemption
Price, with respect to such 2004 Notes or portion thereof so redeemed.
Notice of any optional redemption of any 2004 Notes (or any portion
thereof) will be given to Holders at their addresses, as shown in the 2004 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 2004 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 2004 Notes to be redeemed and their
redemption date. If less than all the 2004 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 2004 Notes to be redeemed in whole or in part.
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In the event of redemption of the 2004 Notes in part only, a new 2004
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 2004 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
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 2004 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.l5(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 2004 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 2004 Note.
The Issuer is subject to certain covenants contained in the Indenture
with respect to, and for the benefit of the Holders of, the 2004 Notes. The
Trustee shall not be obligated to monitor or confirm, on a continuing basis or
otherwise, the Issuer's compliance with the covenants
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maintained 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
2004 Notes shall occur and be continuing, the principal of the 2004 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 2004 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
2004 Notes, the Holders of not less than a majority in principal amount of the
2004 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 2004 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 2004 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 2004 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 2004 Notes. The
Indenture also contains provisions permitting the Holders of not less than a
majority in principal amount of the 2004 Notes at the time Outstanding, on
behalf of the Holders of all 2004 Notes, to waive compliance by the Issuer with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this 2004 Note shall be conclusive and binding upon such Holder and upon all
future Holders of this 2004 Note and of any 2004 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 2004 Note.
No reference herein to the Indenture and no provision of this 2004 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 2004
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 2004 Note is registrable in the 2004 Note
Register, upon surrender of this 2004 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 2004 Note are payable, duly endorsed by, or
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Accompanied by a written instrument of transfer in form satisfactory to the
Issuer and the Security Registrar for the 2004 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 2004 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 2004 Notes are exchangeable for a like aggregate principal amount of 2004
Notes of this series of a different authorized denomination, 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 2004 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 2004 Note is registered as the owner hereof for all
purposes, whether or not this 2004 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 2004 Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE 2004 NOTES INCLUDING THIS 2004 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 2004 Notes as a convenience to the Holders of the 2004 Notes. No
representation is made as to the correctness or accuracy of such CUSIP numbers
as printed on the 2004 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 2004 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 24th day of January, 1996.
XXXXXXX PROPERTIES, L.P.
By: /s/ XXXXX X. XXXXXX
-------------------------------
Name: XXXXX X. XXXXXX
-----------------------------
Title: EXECUTIVE VICE PRESIDENT
AND CHIEF FINANCIAL OFFICER
----------------------------
[SEAL]
Attest:
/s/ XXXXXX X. XXXXXX
----------------------------------
Name: XXXXXX X. XXXXXX
-----------------------------
Title: VICE PRESIDENT & SECRETARY
----------------------------
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TRUSTEES CERTIFICATE OF AUTHENTICATION:
This is one of the 2004 Notes of the series designated "6.90% Notes Due
January 15, 2004" referred to in the within-mentioned Indenture.
STATE STREET BANK AND TRUST COMPANY.
Trustee
By: /S/
---------------------
Authorized Officer
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ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers to
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNS
-------------------------------------------------------------------------------
(Please Print or Typewrite Name and Address Including Zip Code of Assignee)
-------------------------------------------------------------------------------
The within 2004 Note of Xxxxxxx Properties, L.P. and hereby does irrevocably
constitute and appoint
-------------------------------------------------------------------------------
Attorney to transfer said 2004 Note on the books of the within-named Issuer
with full power of substitution in the premises.
Dated:
------------- --------------------------------------
--------------------------------------
Signature(s) must be guaranteed by an eligible Guarantor Institution (banks,
stock brokers, savings and loan associations and credit unions) with membership
in an approved signature guarantee medallion program pursuant to Securities and
Exchange Commission Rule 17Ad-15.
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within 2004 Note in every particular, without
alteration or enlargement or any change whatever.
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