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EXHIBIT 4.4
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IRVINE APARTMENT COMMUNITIES, L.P.
and
U.S. BANK TRUST NATIONAL ASSOCIATION
Trustee
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SUPPLEMENTAL INDENTURE NO. 2
Dated as of April 9, 1998
Supplementing Indenture Dated as of October 1, 1997, as amended
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SUPPLEMENTAL INDENTURE No. 2 dated as of April 9, 1998, between Irvine
Apartment Communities, L.P., a Delaware limited partnership (the "Issuer"), and
U.S. Bank Trust National Association, formerly known as First Trust of
California, National Association (the "Trustee"),
W I T N E S S E T H:
WHEREAS, the Issuer has heretofore executed and delivered to the Trustee
that certain Indenture dated as of October 1, 1997 (the "Indenture") providing
for the issuance from time to time of its unsecured debentures, notes or other
evidences of indebtedness to be issued in one or more series (the "Securities")
up to such principal amount or amounts as may from time to time be authorized in
accordance with the Indenture; and
WHEREAS, the parties hereto desire to enter into this Supplemental
Indenture for the purpose of amending the terms of the Indenture, as permitted
in accordance with Section 7.01 of the Indenture, to provide for the appointment
of an Authenticating Agent (as defined herein) to authenticate Securities of a
series on behalf of the Trustee; and
NOW THEREFORE:
In consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Issuer and the
Trustee mutually covenant and agree for the equal and proportionate benefit of
the respective holders from time to time of the Securities as follows:
SECTION 1. Section 1.01 of the Indenture is hereby amended to add the
following definition:
"AUTHENTICATING AGENT" means with respect to a series of Securities any
Person authorized pursuant to Section 5.12 to act on behalf of the Trustee to
authenticate the Securities of such series.
SECTION 2. Article 5 of the Indenture is hereby amended to add a new
Section 5.12 thereto to read in its entirety as follows:
"SECTION 5.12. Appointment of Authenticating Agent. The Issuer
may appoint, or the Trustee with the consent of the Issuer may appoint,
with respect to one or more series of Securities an Authenticating Agent
or Agents which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issue and
upon exchange, registration of transfer, or partial redemption or
repayment
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thereof or pursuant to Section 2.09, and Securities so authenticated
shall be entitled to the benefits of this Indenture and shall be valid
and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed
to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on
behalf of the Trustee by an Authenticating Agent. Each Authenticating
Agent shall be acceptable to the Issuer and shall at all times be a
Person organized and doing business under the laws of the United States
of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to
supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and
with the effect specified in this Section.
Any Person into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any person resulting
from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any Person succeeding to the
corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be Authenticating Agent, provided such Person shall be
otherwise eligible under this Section without the execution or filing of
any paper or further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Issuer. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Issuer. Upon
receiving such a notice of resignation or upon such a termination, or in
case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint
a successor Authenticating Agent which shall be acceptable to the
Issuer. Any successor Authenticating Agent upon acceptance of its
appointment under this Section shall become vested with all the rights,
powers and
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duties of its predecessor hereunder, with like effect as if originally
named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible to act as such under the provisions
of this Section.
Any Authenticating Agent by the acceptance of its appointment
shall be deemed to have represented to the Trustee and the Issuer that
it is eligible for appointment as Authenticating Agent under this
Section and to have agreed with the Trustee that it will perform and
carry out the duties of an Authenticating Agent as herein set forth,
including among other things the duties to authenticate Securities of
the applicable series when presented to it in connection with the
original issuance and with exchanges, registrations of transfer or
redemptions or repayments thereof or pursuant to Section 2.09; it will
keep and maintain, and furnish to the Trustee from time to time as
requested by the Trustee, appropriate records of all transactions
carried out by it as Authenticating Agent and will furnish the Trustee
such other information and reports as the Trustee may reasonably
require; and it will notify the Trustee promptly if it shall cease to be
eligible to act as Authenticating Agent in accordance with the
provisions of this Section. Any Authenticating Agent by the acceptance
of its appointment shall be deemed to have agreed with the Trustee to
indemnify the Trustee against any loss, liability or expense incurred by
the Trustee and to defend any claim asserted against the Trustee by
reason of any acts or failures to act of such Authenticating Agent, but
such Authenticating Agent shall have no liability for any action taken
by it in accordance with the specific written direction of the Trustee.
The Issuer agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services, and to reimburse it
for its reasonable expenses, under this Section.
If any appointment is made pursuant to this Section, the
Securities of the applicable series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication,
an alternative certificate of authentication in the following form:
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This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
U.S. BANK TRUST NATIONAL
ASSOCIATION, as Trustee
By____________________________
As Authenticating Agent
By____________________________"
Authorized Signatory
SECTION 3. New York Law to Govern. This Supplemental Indenture shall be
deemed to be a contract under the laws of the State of New York, and for all
purposes shall be construed in accordance with the laws of said State, except as
may otherwise be required by mandatory provisions of law.
SECTION 4. Counterparts. This 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.
SECTION 5. Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
IRVINE APARTMENT COMMUNITIES, L.P.
By: Irvine Apartment Communities, Inc.,
its sole general partner
By /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Senior Vice President,
Chief Financial Officer and Secretary
Attest:
By /s/ XXXXX XXXXX
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Name: Xxxxx Xxxxx
Title: Vice President, Corporate
Finance and Controller
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxxxxxxx
Title: Trust Officer
Attest:
By /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Vice President
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