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SUMMIT PROPERTIES PARTNERSHIP, L.P.
Issuer
to
FIRST UNION NATIONAL BANK
Trustee
Supplemental Indenture No. 3
Dated as of May 29, 1998
$95,000,000
of
Medium-Term Notes Due Nine Months or More
from Date of Issue
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SUPPLEMENTAL INDENTURE NO. 3, dated as of May 29, 1998 (the
"Supplemental Indenture"), between SUMMIT PROPERTIES PARTNERSHIP, L.P., a
limited partnership organized under the laws of the State of Delaware (herein
called the "Partnership"), and First Union National Bank, a national banking
association organized under the laws of the United States of America, as Trustee
(herein called the "Trustee").
RECITALS OF THE PARTNERSHIP
The Partnership has heretofore delivered to the Trustee an
Indenture dated as of August 7, 1997 (the "Senior Indenture"), a form of which
has been filed with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended, as an exhibit to the Partnership's
Registration Statement on Form S-3 (Registration No. 333-25575), providing for
the issuance from time to time of Senior Debt Securities of the Partnership (the
"Securities"). The Partnership intends by this Supplemental Indenture to (i)
create a series of debt securities to be issued from time to time, in an
aggregate initial principal amount not to exceed $95,000,000, entitled
"Medium-Term Notes Due Nine Months or More from Date of Issue" (the "Notes") and
(ii) establish the form and the terms and conditions of such Notes.
Section 301 of the Senior Indenture provides for various
matters with respect to any series of Securities issued under the Senior
Indenture to be established in an indenture supplemental to the Senior
Indenture.
Section 901(7) of the Senior Indenture provides for the
Partnership and the Trustee to enter into an indenture supplemental to the
Senior Indenture to establish the form or terms of Securities of any series as
provided by Sections 201 and 301 of the Senior Indenture.
The Board of Directors of Summit Properties Inc., the general
partner of the Partnership, has duly adopted resolutions authorizing the
Partnership to execute and deliver this Supplemental Indenture.
All the conditions and requirements necessary to make this
Supplemental Indenture, when duly executed and delivered, a valid and binding
agreement in accordance with its terms and for the purposes herein expressed,
have been performed and fulfilled.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
each of the series of Securities provided for herein by the Holders thereof, it
is mutually covenanted and agreed, for the equal and proportionate benefit of
all Holders of the Notes or of any series thereof, as follows:
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ARTICLE ONE
RELATION TO SENIOR INDENTURE; DEFINITIONS
SECTION 1.1. Relation to Senior Indenture.
This Supplemental Indenture constitutes an integral part of
the Senior Indenture.
SECTION 1.2. Definitions.
For all purposes of this Supplemental Indenture, except as
otherwise expressly provided for or unless the context otherwise requires:
(1) Capitalized terms used but not defined herein shall have
the respective meanings assigned to them in the Senior Indenture; and
(2) All references herein to Articles and Sections, unless
otherwise specified, refer to the corresponding Articles and Sections
of this Supplemental Indenture.
"Acquired Indebtedness" means Indebtedness of a Person (i)
existing at the time such Person becomes a Subsidiary or (ii) assumed in
connection with the acquisition of assets from such Person, in each case, other
than Indebtedness incurred in connection with, or in contemplation of, such
Person becoming a Subsidiary or such acquisition. Acquired Indebtedness shall be
deemed to be incurred on the date of the related acquisition of assets from any
Person or the date the acquired Person becomes a Subsidiary.
"Annual Service Charge" for any period means the aggregate
interest expense for such period in respect of, and the amortization during such
period of any original issue discount of, Indebtedness of the Partnership and
its Subsidiaries and the amount of dividends which are payable during such
period in respect of any Disqualified Stock.
"Capital Stock" means, with respect to any Person, any capital
stock (including preferred stock), shares, interests, participations or other
ownership interests (however designated) of such Person and any rights (other
than debt securities convertible into or exchangeable for corporate stock),
warrants or options to purchase any thereof.
"Consolidated Income Available for Debt Service" for any
period means Earnings from Operations of the Partnership and its Subsidiaries
plus amounts which have been deducted, and minus amounts which have been added,
for the following (without duplication): (i) interest on Indebtedness of the
Partnership and its Subsidiaries, (ii) provision for taxes of the Partnership
and its Subsidiaries based on income, (iii) amortization of debt discount, (iv)
provisions for gains and losses on properties and property depreciation and
amortization, (v) the effect of any noncash charge resulting from a change in
accounting principles in determining Earnings from Operations for such period
and (vi) amortization of deferred charges.
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"Disqualified Stock" means, with respect to any Person, any
Capital Stock of such Person which by the terms of such Capital Stock (or by the
terms of any security into which it is convertible or for which it is
exchangeable or exercisable), upon the happening of any event or otherwise (i)
matures or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise (other than Capital Stock which is redeemable solely in exchange for
common stock), (ii) is convertible into or exchangeable or exercisable for
Indebtedness or Disqualified Stock or (iii) is redeemable at the option of the
holder thereof, in whole or in part (other than Capital Stock which is
redeemable solely in exchange for Capital Stock which is not Disqualified Stock
or the redemption price of which may, at the option of such Person, be paid in
Capital Stock which is not Disqualified Stock), in each case on or prior to the
Stated Maturity of the Notes.
"Earnings from Operations" for any period means net earnings
excluding gains and losses on sales of investments, extraordinary items, and
property valuation losses, net as reflected in the financial statements of the
Partnership and its Subsidiaries for such period determined on a consolidated
basis in accordance with GAAP.
"Encumbrance" means any mortgage, lien, charge, pledge or
security interest of any kind.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder by the Commission.
"Fixed Rate Notes" means the Partnership's Fixed Rate Notes
due nine months or more from the date of issue, a form of which is attached
hereto as Exhibit B.
"Floating Rate Notes" means the Partnership's Floating Rate
Notes due nine months or more from the date of issue, a form of which is
attached hereto as Exhibit A.
"GAAP" means generally accepted accounting principles as used
in the United States applied on a consistent basis as in effect from time to
time; provided that solely for purposes of any calculation required by the
financial covenants contained herein, "GAAP" shall mean generally accepted
accounting principles as used in the United States on the date hereof, applied
on a consistent basis.
"Indebtedness" of the Partnership or any Subsidiary means any
indebtedness of the Partnership or any Subsidiary, whether or not contingent, in
respect of (i) borrowed money or evidenced by bonds, notes, debentures or
similar instruments whether or not such indebtedness is secured by any
Encumbrance existing on property owned by the Partnership or any Subsidiary,
(ii) indebtedness for borrowed money of a Person other than the Partnership or a
Subsidiary which is secured by any Encumbrance existing on property owned by the
Partnership or any Subsidiary, to the extent of the lesser of (x) the amount of
indebtedness so secured and (y) the fair market value of the property subject to
such Encumbrance, (iii) the reimbursement obligations, contingent or otherwise,
in connection with any letters of credit actually issued or amounts representing
the balance deferred and unpaid of the purchase price of any property or
services, except any such balance that constitutes an accrued expense or trade
payable, or all conditional sale obligations or obligations under any title
retention agreement, (iv) the principal amount of all obligations of the
Partnership or any Subsidiary with respect to redemption, repayment
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or other repurchase of any Disqualified Stock, (v) any lease of property by the
Partnership or any Subsidiary as lessee which is reflected on the Partnership's
consolidated balance sheet as a capitalized lease in accordance with GAAP, or
(vi) interest rate swaps, caps or similar agreements and foreign exchange
contracts, currency swaps or similar agreements, to the extent, in the case of
items of indebtedness under (i) through (iii) above, that any such items (other
than letters of credit) would appear as a liability on the Partnership's
consolidated balance sheet in accordance with GAAP, and also includes, to the
extent not otherwise included, any obligations by the Partnership or any
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 Partnership or any Subsidiary)
(it being understood that Indebtedness shall be deemed to be incurred by the
Partnership or any Subsidiary whenever the Partnership or such Subsidiary shall
create, assume, guarantee or otherwise become liable in respect thereof).
"Notes" has the meaning specified in Section 2.1 hereof.
"Pricing Supplement" means a pricing supplement to the
Prospectus, dated July 29, 1997, as supplemented by the Prospectus Supplement
dated May 29, 1998, setting forth the terms of the applicable Notes.
"Subsidiary" means, with respect to any Person, any
corporation or other entity of which a majority of (i) the voting power of the
voting equity securities or (ii) the outstanding equity interests of which are
owned, directly or indirectly, by such Person. For the purposes of this
definition, "voting equity securities" means equity securities having voting
power for the election of directors, whether at all times or only so long as no
senior class of security has such voting power by reason of any contingency.
"Total Assets" as of any date means the sum of (i) the
Undepreciated Real Estate Assets and (ii) all other assets of the Partnership
and its Subsidiaries determined in accordance with GAAP (but excluding accounts
receivable and intangibles).
"Total Unencumbered Assets" means the sum of (i) those
Undepreciated Real Estate Assets not subject to an Encumbrance for borrowed
money and (ii) all other assets of the Partnership and its Subsidiaries not
subject to an Encumbrance for borrowed money, determined in accordance with GAAP
(but excluding accounts receivable and intangibles).
"Undepreciated Real Estate Assets" as of any date means the
cost (original cost plus capital improvements) of real estate assets of the
Partnership and its Subsidiaries on such date, before depreciation and
amortization, determined on a consolidated basis in accordance with GAAP.
"Unsecured Indebtedness" means Indebtedness which is not
secured by any Encumbrance upon any of the properties of the Partnership or any
Subsidiary.
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ARTICLE TWO
THE SERIES OF NOTES
SECTION 2.1 Title of the Securities.
There shall be a series of Securities designated the
Medium-Term Notes Due Nine Months or More from Date of Issue (the "Notes").
SECTION 2.2 Limitation on Aggregate Principal Amount.
The aggregate principal amount of the Notes shall be limited
to $95,000,000, and, except as provided in this Section and in Section 306 of
the Indenture, the Partnership shall not execute and the Trustee shall not
authenticate or deliver Notes in excess of such aggregate principal amount;
provided however, as authorized by Section 301 of the Indenture, the Notes
series may be reopened, without the consent of the Holders, for the issuance of
such additional Notes as may be authorized by the Partnership.
Nothing contained in this Section 2.2 or elsewhere in this
Supplemental Indenture, or in the Notes, is intended to or shall limit execution
by the Partnership or authentication or delivery by the Trustee of Notes under
the circumstances contemplated by Sections 303, 304, 305, 306, 906, 1107 and
1305 of the Indenture.
SECTION 2.3 Terms and Conditions of the Notes.
The Notes shall be governed by all the terms and conditions of
the Indenture, including, without limitation, the terms and conditions set forth
in the forms of Note referred to in Section 2.9 below, as the same may be
supplemented or, to the extent allowed by the Indenture, modified by the
additional or different terms and conditions established from time to time with
respect to the Notes either in board resolutions of Summit Properties Inc. (the
"General Partner"), as sole general partner of the Operating Partnership or by
action of authorized officers of the General Partner and, in either such case,
such additional or different terms and conditions shall be set forth in the
Notes and the related Pricing Supplement. All such terms and conditions set
forth in such Notes and in such Pricing Supplement are incorporated by reference
into this Supplemental Indenture.
SECTION 2.4 Limitations on Incurrence of Indebtedness.
(a) The Partnership will not, and will not permit any
Subsidiary to, incur any Indebtedness if, immediately after giving effect to the
incurrence of such additional Indebtedness and the application of the proceeds
thereof, the aggregate principal amount of all outstanding Indebtedness of the
Partnership and its Subsidiaries on a consolidated basis determined in
accordance with GAAP is greater than 60% of the sum of (without duplication) (i)
the Total Assets of the Partnership and its Subsidiaries as of the end of the
calendar quarter covered in the Partnership's Annual Report on Form 10-K or
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Quarterly Report on Form 10-Q, as the case may be, most recently filed with the
Commission (or, if such filing is not permitted under the Exchange Act, with the
Trustee) prior to the incurrence of such additional Indebtedness and (ii) the
purchase price of any real estate assets or mortgages receivable acquired, and
the amount of any securities offering proceeds received (to the extent such
proceeds were not used to acquire real estate assets or mortgages receivable or
used to reduce Indebtedness), by the Partnership or any Subsidiary since the end
of such calendar quarter, including those proceeds obtained in connection with
the incurrence of such additional Indebtedness.
(b) In addition to the limitation set forth in subsection (a)
of this Section 2.4, the Partnership will not, and will not permit any
Subsidiary to, incur any Indebtedness if the ratio of Consolidated Income
Available for Debt Service to the Annual Service Charge for the four consecutive
fiscal quarters most recently ended prior to the date on which such additional
Indebtedness is to be incurred shall have been less than 1.5:1, on a pro forma
basis after giving effect thereto and to the application of the proceeds
therefrom, and calculated on the assumption that (i) such Indebtedness and any
other Indebtedness incurred by the Partnership and its Subsidiaries since the
first day of such four-quarter period and the application of the proceeds
therefrom, including to refinance other Indebtedness, had occurred at the
beginning of such period; (ii) the repayment or retirement of any other
Indebtedness by the Partnership and its Subsidiaries since the first day of such
four-quarter period had been repaid or retired at the beginning of such period
(except that, in making such computation, the amount of Indebtedness under any
revolving credit facility shall be computed based upon the average daily balance
of such Indebtedness during such period); (iii) in the case of Acquired
Indebtedness or Indebtedness incurred in connection with any acquisition since
the first day of such four-quarter period, the related acquisition had occurred
as of the first day of such period with the appropriate adjustments with respect
to such acquisition being included in such pro forma calculation; and (iv) in
the case of any acquisition or disposition by the Partnership or its
Subsidiaries of any asset or group of assets since the first day of such
four-quarter period, whether by merger, stock purchase or sale, or asset
purchase or sale, such acquisition or disposition or any related repayment of
Indebtedness had occurred as of the first day of such period with the
appropriate adjustments with respect to such acquisition or disposition being
included in such pro forma calculation.
(c) In addition to the limitations set forth in subsections
(a) and (b) of this Section 2.4, the Partnership will not, and will not permit
any Subsidiary to, incur any Indebtedness secured by any Encumbrance upon any of
the property of the Partnership or any Subsidiary if, immediately after giving
effect to the incurrence of such additional Indebtedness and the application of
the proceeds thereof, the aggregate principal amount of all outstanding
Indebtedness of the Partnership and its Subsidiaries on a consolidated basis
which is secured by any Encumbrance on property of the Partnership or any
Subsidiary is greater than 40% of the sum of (without duplication) (i) the Total
Assets of the Partnership and its Subsidiaries as of the end of the calendar
quarter covered in the Partnership's Annual Report on Form 10-K or Quarterly
Report on Form 10-Q, as the case may be, most recently filed with the Commission
(or, if such filing is not permitted under the Exchange Act, with the Trustee)
prior to the incurrence of such additional Indebtedness and (ii) the purchase
price of any real estate assets or mortgages receivable acquired, and the amount
of any securities offering proceeds received (to the extent that such proceeds
were not used to acquire real estate assets or mortgages receivable or used to
reduce
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Indebtedness), by the Partnership or any Subsidiary since the end of such
calendar quarter, including those proceeds obtained in connection with the
incurrence of such additional Indebtedness.
(d) The Partnership and its Subsidiaries may not at any time
own Total Unencumbered Assets equal to less than 150% of the aggregate
outstanding principal amount of the Unsecured Indebtedness of the Partnership
and its Subsidiaries on a consolidated basis.
(e) For purposes of this Section 2.4, Indebtedness shall be
deemed to be "incurred" by the Partnership or a Subsidiary whenever the
Partnership or such Subsidiary shall create, assume, guarantee or otherwise
become liable in respect thereof.
SECTION 2.5 Defeasance.
The provisions of Sections 1402 and 1403 of the Senior
Indenture, together with the other provisions of Article Fourteen of the Senior
Indenture, shall be applicable to the Notes. The provisions of Section 1403 of
the Senior Indenture shall apply to the covenants set forth in Sections 2.4 and
2.10 of this Supplemental Indenture and to those covenants specified in Section
1403 of the Senior Indenture.
SECTION 2.6 Events of Default
The provisions of clause (5) of Section 501 of the Senior
Indenture as applicable with respect to the Notes shall be deemed to be amended
and restated in their entirety to read as follows:
(5) default under any bond, debenture, note, mortgage,
indenture or instrument under which there may be issued or by which there may be
secured or evidenced any indebtedness for money borrowed by the Partnership (or
by any Subsidiary, the repayment of which the Partnership has guaranteed or for
which the Partnership is directly responsible or liable as obligor or
guarantor), having an aggregate principal amount outstanding of at least
$10,000,000, whether such indebtedness now exists or shall hereafter be created,
which default shall have resulted in such indebtedness becoming or being
declared due and payable prior to the date on which it would otherwise have
become due and payable, without such indebtedness having been discharged, or
such acceleration having been rescinded or annulled, within a period of 10 days
after there shall have been given written notice, by registered or certified
mail, to the Partnership by the Trustee or to the Partnership and the Trustee by
the Holders of at least 10% in principal amount of the Outstanding Securities of
that series a written notice specifying such default and requiring the
Partnership to cause such indebtedness to be discharged or cause such
acceleration to be rescinded or annulled and stating that such notice is a
"Notice of Default" hereunder; or
The provisions of Section 501 of the Senior Indenture as
applicable with respect to the Notes shall be further deemed to be amended by
renumbering existing clause (8) to be clause (9) and by adding the following new
clause (8):
(8) the entry by a court of competent jurisdiction of one or
more judgments, orders or decrees against the Partnership or any of its
Subsidiaries in an
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aggregate amount (excluding amounts covered by insurance) in excess of
$10,000,000 and such judgements, orders or decrees remain undischarged, unstayed
and unsatisfied in an aggregate amount (excluding amounts covered by insurance)
in excess of $10,000,000 for a period of 30 consecutive days; or
SECTION 2.7 Acceleration of Maturity; Rescission and
Annulment.
The provisions of the first paragraph of Section 502 of the
Senior Indenture as applicable with respect to the Notes shall be deemed to be
amended and restated in their entirety to read as follows:
If an Event of Default with respect to Securities of any
series at the time Outstanding occurs and is continuing, then in every such case
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal (or, if any
Securities are Original Issue Discount Securities or Indexed Securities, such
portion of the principal as may be specified in the terms thereof) of, all the
Securities of that series to be due and payable immediately, by a notice in
writing to the Partnership (and to the Trustee if given by the Holders), plus
accrued interest to the date the Securities of that series are paid, and upon
any such declaration such principal or specified portion thereof shall become
immediately due and payable. With respect to the Securities of any series, if an
Event of Default set forth in Section 501(6) of the Senior Indenture occurs and
is continuing, then in every such case all the Securities of that series shall
become immediately due and payable, without notice to the Partnership, at the
principal amount thereof (or, if any Securities are Original Issue Discount
Securities or Indexed Securities, such portion of the principal as may be
specified in the terms thereof) plus accrued interest to the date the Securities
of that series are paid.
SECTION 2.8 Registered Securities.
Each Note shall be issuable and transferable in fully
registered book-entry form or certificated form as specified in the applicable
Pricing Supplement.
SECTION 2.9 Form of Notes.
The Floating Rate Notes shall be substantially in the form
attached as Exhibit A hereto. The Fixed Rate Notes shall be substantially in the
form attached as Exhibit B hereto.
SECTION 2.10 Provision of Financial Information.
Whether or not the Partnership is subject to Section 13 or
15(d) of the Exchange Act, the Partnership will, to the extent permitted under
the Exchange Act, file with the Commission the annual reports, quarterly reports
and other documents which the Partnership would have been required to file with
the Commission pursuant to such Section 13 or 15(d) if the Partnership were so
subject, such documents to be filed with the Commission on or prior to the
respective dates (the "Required Filing Dates") by which the Partnership would
have been required so to file such documents if the Partnership were so subject.
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The Partnership will also in any event (x) within 15 days of
each Required Filing Date (i) if the Partnership is not then subject to Section
13 or 15(d) of the Exchange Act, transmit by mail to all Holders, as their names
and addresses appear in the Security Register, without cost to such Holders,
copies of the annual reports and quarterly reports which the Partnership would
have been required to file with the Commission pursuant to Section 13 or 15(d)
of the Exchange Act if the Partnership were subject to such Sections, and (ii)
file with the Trustee copies of annual reports, quarterly reports and other
documents which the Partnership would have been required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act if the
Partnership were subject to such Sections and (y) if filing such documents by
the Partnership with the Commission is not permitted under the Exchange Act,
promptly upon written request and payment of the reasonable cost of duplication
and delivery, supply copies of such documents to any prospective Holder.
SECTION 2.11 Waiver of Certain Covenants.
Notwithstanding the provisions of Section 1010 of the Senior
Indenture, the Partnership may omit in any particular instance to comply with
any term, provision or condition set forth in Sections 1004 to 1007, inclusive,
of the Senior Indenture, with Sections 2.4 and 2.10 of this Supplemental
Indenture and with any other term, provision or condition with respect to the
Notes or either series thereof (except any such term, provision or condition
which could not be amended without the consent of all Holders of the Notes or
such series thereof, as applicable), if before or after the time for such
compliance the Holders of at least a majority in principal amount of all
outstanding Notes or such series thereof, as applicable, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such covenant or condition. Except to the extent so expressly waived, and until
such waiver shall become effective, the obligations of the Partnership and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
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ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 3.1. Ratification of Senior Indenture.
Except as expressly modified or amended hereby, the Senior
Indenture continues in full force and effect and is in all respects confirmed
and preserved.
SECTION 3.2. Governing Law.
This Supplemental Indenture and each Note shall be governed by
and construed in accordance with the laws of the State of New York. This
Supplemental Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, and shall, to the extent applicable, be governed by such
provisions.
SECTION 3.3. Counterparts.
This Supplemental Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed by their respective officers hereunto
duly authorized, all as of the day and year first written above.
SUMMIT PROPERTIES PARTNERSHIP, L.P.
By: Summit Properties, Inc.,
its general partner
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxx
Executive Vice President and
Chief Financial Officer
FIRST UNION NATIONAL BANK,
as Trustee
By: /s/ Xxxxx X. Xxxxx
----------------------------------------
Xxxxx X. Xxxxx
Vice President
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EXHIBIT A
[FACE OF NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (THE "DEPOSITARY") (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) TO THE
ISSUER HEREOF OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY AND ANY PAYMENT
IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.(1)
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.(2)
REGISTERED [PRINCIPAL AMOUNT]
No. FLR-
CUSIP No:*
SUMMIT PROPERTIES PARTNERSHIP, L.P.
MEDIUM-TERM NOTE
(Floating Rate)
INTEREST RATE BASIS ORIGINAL ISSUE DATE: STATED MATURITY DATE:
OR BASES:
IF LIBOR: IF CMT RATE:
[ ] LIBOR Reuters Designated CMT Telerate Page:
Page: If Telerate Page 7052:
[ ] Weekly Average
[ ] Monthly Average
Designated CMT Maturity Index:
[ ]-LIBOR Telerate
Page:
INDEX CURRENCY:
------------------------
(1) This paragraph applies to global Notes only.
(2) This paragraph applies to global Notes only.
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INDEX MATURITY: INITIAL INTEREST RATE: % INTEREST PAYMENT
DATE(S):
SPREAD (PLUS OR SPREAD MULTIPLIER: INITIAL INTEREST RESET
MINUS): DATE:
MINIMUM INTEREST MAXIMUM INTEREST INTEREST RESET
RATE: % RATE: % DATE(S):
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: % PERCENTAGE REDUCTION:
OPTIONAL REPAYMENT CALCULATION AGENT:
DATE(S):
INTEREST CATEGORY: DAY COUNT CONVENTION:
[ ] Regular Floating Rate Note [ ] 30/360 for the period
[ ] Floating Rate/Fixed Rate Note from to
Fixed Rate Commencement Date: [ ] Actual/360 for the period
Fixed Interest Rate: % from to
[ ] Inverse Floating Rate Note [ ] Actual/Actual for the period
Fixed Interest Rate: % from to
[ ] Original Issue Discount Note Applicable Interest Rate Basis:
Issue Price: %
SPECIFIED CURRENCY: AUTHORIZED DENOMINATION:
[ ] United States dollars [ ] $1,000 and integral multiples thereof
[ ] Other: [ ] Other:
EXCHANGE RATE:
U.S. $1.00 = ______
EXCHANGE RATE AGENT:
AMORTIZING SECURITY:
[ ] Yes
[ ] No
AMORTIZATION FORMULA:
15
AMORTIZATION PAYMENT DATE(S):
DEFAULT RATE: %
ADDENDUM ATTACHED:
[ ] Yes
[ ] No
OTHER/ADDITIONAL PROVISIONS:
SUMMIT PROPERTIES PARTNERSHIP, L.P., a limited partnership duly
organized and existing under the laws of Delaware (hereinafter referred to as
the "Partnership", which term includes any successor entity under the Indenture
hereinafter referred to), for value received, hereby promises to pay to_______,
or registered assigns, the principal sum of_____________, on the Stated Maturity
Date specified above (or any Redemption Date or Repayment Date, each as defined
below) (each such Stated Maturity Date, Redemption Date or Repayment Date being
hereinafter referred to as the "Maturity Date" with respect to the principal
repayable on such date) and to pay interest thereon, at a rate per annum equal
to the initial Interest Rate specified above until the Initial Interest Reset
Date specified above and thereafter at a rate determined in accordance with the
provisions specified above and on the reverse hereof or in an Addendum hereto
with respect to one or more Interest Rate Bases specified above until the
principal hereof is paid or duly made available for payment, and (to the extent
that the payment of such interest shall be legally enforceable) at the Default
Rate per annum specified above on any overdue principal, premium and/or
interest, including any overdue sinking fund or redemption payment. The
Partnership will pay interest in arrears on each Interest Payment Date, if any,
specified above (each, an "Interest Payment Date"), commencing with the first
Interest Payment Date next succeeding the Original Issue Date specified above,
and on the Maturity Date; provided, however, that if the Original Issue Date
occurs between a Record Date (as defined below) and the next succeeding Interest
Payment Date, interest payments will commence on the second Interest Payment
Date next succeeding the Original Issue Date to the holder of this Note on the
Record Date with respect to such second Interest Payment Date.
Interest on this Note will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for (or from, and including, the Original Issue Date if no interest has been
paid or duly provided for) to, but excluding, the applicable Interest Payment
Date or the Maturity Date, as the case may be (each, an "Interest Period"). The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, subject to certain exceptions described herein, be paid to
the person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the fifteenth calendar day (whether or
not a Business Day, as defined on
16
the reverse hereof) immediately preceding such Interest Payment Date (the
"Record Date"); provided, however, that interest payable on the Maturity Date
will be payable to the person to whom the principal hereof and premium, if any,
hereon shall be payable. Any such interest not so punctually paid or duly
provided for ("Defaulted Interest") will forthwith cease to be payable to the
holder on any Record Date, and shall be paid to the person in whose name this
Note is registered at the close of business on a special record date (the
"Special Record Date") for the payment of such Defaulted Interest to be fixed by
the Trustee hereinafter referred to, notice whereof shall be given to the holder
of this Note by the Trustee 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 this Note may be listed, and upon such notice as may be required by such
exchange, all as more fully provided for in the Indenture.
Payment of principal, premium, if any, and interest in respect of this
Note due on the Maturity Date, or any prior date on which the principal or an
installment of principal of this Note becomes due and payable, whether by the
declaration of acceleration or otherwise, will be made in immediately available
funds upon presentation and surrender of this Note (and, with respect to any
applicable repayment of this Note, upon presentation and surrender of this Note
and a duly completed election form as contemplated on the reverse hereof) at the
office or agency maintained by the Partnership for that purpose in the Borough
of Manhattan, The City of New York; provided, however, that if the Specified
Currency specified above is other than United States dollars and such payment is
to be made in the Specified Currency in accordance with the provisions set forth
below, such payment may be made by wire transfer of immediately available funds
to an account with a bank designated by the holder hereof at least 15 calendar
days prior to the Maturity Date, provided that such bank has appropriate
facilities therefor and that this Note (and, if applicable, a duly completed
repayment election form) is presented and surrendered at the aforementioned
office or agency maintained by the Partnership in time for the Trustee or the
Designated Agent to make such payment in such funds in accordance with its
normal procedures. Payment of interest due on any Interest Payment Date other
than the Maturity Date will be made at the aforementioned office of agency
maintained by the Partnership or, at the option of the Partnership, by check
mailed to the address of the person entitled thereto as such address shall
appear in the Security Register maintained by the Trustee or the Designated
Agent; provided, however, that a holder of U.S. $10,000,000 (or, if the
Specified Currency is other than United States dollars, the equivalent thereof
in the Specified Currency) or more in aggregate principal amount of Notes
(whether having identical or different terms and provisions) will be entitled to
receive interest payments on any Interest Payment Date other than the Maturity
Date by wire transfer of immediately available funds if appropriate wire
transfer instructions have been received in writing by the Trustee or the
Designated Agent not less than 15 calendar days prior to such Interest Payment
Date. Any such wire transfer instructions received by the Trustee or the
Designated Agent shall remain in effect until revoked by such holder.
If any Interest Payment Date other than the Maturity Date would
otherwise be a day that is not a Business Day, such Interest Payment Date shall
be postponed to the next succeeding Business Day, except that if LIBOR is an
applicable Interest Rate Basis and such Business
17
Day falls in the next succeeding calendar month, such Interest Payment Date
shall be the immediately preceding Business Day. If the Maturity Date falls on a
day that is not a Business Day, the required payment of principal, premium, if
any, and interest shall be made on the next succeeding Business Day with the
same force and effect as if made on the date such payment was due, and no
interest shall accrue with respect to such payment for the period from and after
the Maturity Date to the date of such payment on the next succeeding Business
Day.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking institutions
are authorized or required by law, regulation or executive order to close in The
City of New York, Chicago or Charlotte, North Carolina; provided, however, that
if the Specified Currency is other than United States dollars, such day is also
not a day on which banking institutions are authorized or required by law,
regulation or executive order to close in the Principal Financial Center (as
defined below) of the country issuing the Specified Currency (or, if the
Specified Currency is European Currency Units ("ECU"), such day is not a day
that appears as an ECU non-settlement day on the display designated as "ISDE" on
the Reuter Monitor Money Rates Service (or a day so designated by the ECU
Banking Association), or, if ECU non-settlement days do not appear on that page
(and are not so designated), is not a day on which payments in ECU cannot be
settled in the international interbank market); provided, further, that if LIBOR
is an applicable Interest Rate Basis, such day is also a London Business Day (as
defined below). "London Business Day" means (i) if the Index Currency (as
defined below) is other than ECU, any day on which dealings in such Index
Currency are transacted in the London interbank market or (ii) if the Index
Currency is ECU, any day that does not appear as an ECU non-settlement day on
the display designated as "ISDE" on the Reuter Monitor Money Rates Service (or a
day so designated by the ECU Banking Association) or, if ECU non-settlement days
do not appear on that page (and are not so designated), is not a day on which
payments in ECU cannot be settled in the international interbank market.
"Principal Financial Center" means the capital city of the country issuing the
Specified Currency or, solely with respect to the calculation of LIBOR, the
Index Currency, except that with respect to United States dollars, Australian
dollars, Deutsche marks, Dutch guilders, Italian lire, Swiss francs and ECU, the
Principal Financial Center shall be The City of New York, Sydney, Frankfurt,
Amsterdam, Milan, Zurich and Luxembourg, respectively.
The Partnership is obligated to make payments of principal, premium, if
any, and interest in respect of this Note in the Specified Currency (or, if the
Specified Currency is not at the time of such payment legal tender for the
payment of public and private debts, in such other coin or currency of the
country which issued the Specified Currency as at the time of such payment is
legal tender for the payment of such debts). If the Specified Currency is other
than United States dollars, except as provided below, any such amounts so
payable by the Partnership will be converted by the Exchange Rate Agent
specified above into United States dollars for payment to the holder of this
Note.
If the Specified Currency is other than United States dollars, the
holder of this Note may elect to receive such amounts in such Specified
Currency. If the holder of this Note shall not have duly made an election to
receive all or a specified portion of any payment of princi-
18
pal, premium, if any, and/or interest in respect of this Note in the Specified
Currency, any United States dollar amount to be received by the holder of this
Note will be based on the highest bid quotation in The City of New York received
by the Exchange Rate Agent at approximately 11:00 A.M., New York City time, on
the second Business Day preceding the applicable payment date from three
recognized foreign exchange dealers (one of whom may be the Exchange Rate Agent)
selected by the Exchange Rate Agent and approved by the Partnership for the
purchase by the quoting dealer of the Specified Currency for United States
dollars for settlement on such payment date in the aggregate amount of such
Specified Currency payable to all holders of Foreign Currency Notes scheduled to
receive United States dollar payments and at which the applicable dealer commits
to execute a contract. All currency exchange costs will be borne by the holder
of this Note by deductions from such payments. If three such bid quotations are
not available, payments on this Note will be made in the Specified Currency.
If the Specified Currency is other than United States dollars, the
holder of this Note may elect to receive all or a specified portion of any
payment of principal, premium, if any, and/or interest in respect of this Note
in the Specified Currency by submitting a written request for such payment to
the Trustee or the Designated Agent at its corporate trust office in The City of
New York on or prior to the applicable Record Date or at least 15 calendar days
prior to the Maturity Date, as the case may be. Such written request may be
mailed or hand delivered or sent by cable, telex or other form of facsimile
transmission. The holder of this Note may elect to receive all or a specified
portion of all future payments in the Specified Currency in respect of such
principal, premium, if any, and/or interest and need not file a separate
election for each payment. Such election will remain in effect until revoked by
written notice to the Trustee or the Designated Agent, but written notice of any
such revocation must be received by the Trustee or the Designated Agent on or
prior to the applicable Record Date or at least 15 calendar days prior to the
Maturity Date, as the case may be. If the Specified Currency is other than
United States dollars or a composite currency and the holder of this Note shall
have duly made an election to receive all or a specified portion of any payment
of principal, premium, if any, and/or interest in respect of this Note in the
Specified Currency and if the Specified Currency is not available due to the
imposition of exchange controls or other circumstances beyond the reasonable
control of the Partnership, the Partnership will be entitled to satisfy its
obligations to the holder of this Note by making such payment in United States
dollars on the basis of the Market Exchange Rate (as defined below) on the
second Business Day prior to such payment date or, if such Market Exchange Rate
is not then available, on the basis of the most recently available Market
Exchange Rate or as otherwise specified on the face hereof. The "Market Exchange
Rate" for the Specified Currency means the noon dollar buying rate in The City
of New York for cable transfers for such Specified Currency as certified for
customs purposes by (or if not so certified, as otherwise determined by) the
Federal Reserve Bank of New York. Any payment made under such circumstances in
United States dollars will not constitute an Event of Default (as defined in the
Indenture) with respect to this Note.
If the Specified Currency is a composite currency and the holder of
this Note shall have duly made an election to receive all or a specified portion
of any payment of principal,
19
premium, if any, and/or interest in respect of this Note in the Specified
Currency and if such composite currency is unavailable due to the imposition of
exchange controls or other circumstances beyond the reasonable control of the
Partnership, then the Partnership will be entitled to satisfy its obligations to
the holder of this Note by making such payment in United States dollars. The
amount of each payment in United States dollars shall be computed by the
Exchange Rate Agent on the basis of the equivalent of the composite currency in
United States dollars. The component currencies of the composite currency for
this purpose (collectively, the "Component Currencies" and each, a "Component
Currency") shall be the currency amounts that were components of the composite
currency as of the last day on which the composite currency was used. The
equivalent of the composite currency in United States dollars shall be
calculated by aggregating the United States dollar equivalents of the Component
Currencies. The United States dollar equivalent of each of the Component
Currencies shall be determined by the Exchange Rate Agent on the basis of the
most recently available Market Exchange Rate for each such Component Currency,
or as otherwise specified on the face hereof.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the holder of this Note.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof and, if so specified above on the face hereof, in
the Addendum hereto, which further provisions shall have the same force and
effect as if set forth on the face hereof.
Notwithstanding any provisions to the contrary contained herein, if the
face of this Note specifies that an Addendum is attached hereto or that
"Other/Additional Provisions" apply to this Note, this Note shall be subject to
the terms set forth in such Addendum or such "Other/Additional Provisions".
Unless the Certificate of Authentication hereon has been executed by
the Trustee or its Authenticating Agent by manual signature, this Note shall not
be entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, SUMMIT PROPERTIES PARTNERSHIP, L.P. has caused this
Note to be duly executed under its seal.
20
Dated: SUMMIT PROPERTIES PARTNERSHIP, L.P.
By: Summit Properties Inc,
its General Partner
By:
-----------------------------------------
Xxxxxxx X. Xxxxxxx
President and Chief Executive Officer
[SEAL]
Attest:
----------------------------------
Xxxxxxx X. Xxxxxx
Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
FIRST UNION NATIONAL BANK,
as Trustee
Dated: By
-------------------- -------------------------------------
Authorized Signatory
21
[REVERSE OF NOTE]
SUMMIT PROPERTIES PARTNERSHIP, L.P.
MEDIUM-TERM NOTE
(Floating Rate)
This Note is one of a duly authorized series of Securities (the
"Securities") of the Partnership issued and to be issued under an Indenture,
dated as of August 7, 1997, as supplemented by the Third Supplemental Indenture
dated as of May __, 1998, as further amended, modified or supplemented from time
to time (the "Indenture"), between the Partnership and First Union National
Bank, as Trustee (the "Trustee," which term includes any successor trustee under
the Indenture), 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 Trust, the Trustee and the
holders of the Securities, and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Note is one of the series of
Securities designated as "Medium-Term Notes Due Nine Months or More from Date of
Issue" (the "Notes"). All terms used but not defined in this Note or in an
Addendum hereto shall have the meanings assigned to such terms in the Indenture
or on the face hereof, as the case may be.
This Note is issuable only in registered form without coupons in
minimum denominations of U.S. $1,000 and integral multiples thereof or the
minimum Authorized Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless otherwise
specified on the face hereof in accordance with the provisions of the following
two paragraphs, will not be redeemable or repayable prior to the Stated Maturity
Date.
This Note will be subject to redemption at the option of the
Partnership on any date on and after the Initial Redemption Date, if any,
specified on the face hereof, in whole or from time to time in part in
increments of U.S. $1,000 or the minimum Authorized Denomination (provided that
any remaining principal amount hereof shall be at least U.S. $1,000 or such
minimum Authorized Denomination), at the Redemption Price (as defined below),
together with unpaid interest accrued thereon to the date fixed for redemption
(each, a "Redemption Date"), on notice given not more than 60 nor less than 30
calendar days prior to the Redemption Date and in accordance with the provisions
of the Indenture. The "Redemption Price" shall initially be the Initial
Redemption Percentage specified on the face hereof multiplied by the unpaid
principal amount of this Note to be redeemed. The Initial Redemption Percentage
shall decline at each anniversary of the Initial Redemption Date by the Annual
Redemption Percentage Reduction, if any, specified on the face hereof until the
Redemption Price is 100% of the unpaid principal amount to be redeemed. In the
event of redemption of this Note in part only, a new Note of like tenor for the
unredeemed portion hereof and otherwise having the
22
same terms as this Note shall be issued in the name of the holder hereof upon
the presentation and surrender hereof.
This Note will be subject to repayment by the Partnership at the option
of the holder hereof on the Optional Repayment Date(s), if any, specified on the
face hereof, in whole or in part in increments of U.S. $1,000 or the minimum
Authorized Denomination (provided that any remaining principal amount hereof
shall be at least U.S. $1,000 or such minimum Authorized Denomination), at a
repayment price equal to 100% of the unpaid principal amount to be repaid,
together with unpaid interest accrued thereon to the date fixed for repayment
(each, a "Repayment Date"). For this Note to be repaid, the Trustee or the
Designated Agent must receive at its office in the Borough of Manhattan, The
City of New York, referred to on the face hereof, at least 30 days but not more
than 60 days prior to the Repayment Date (i) this Note and the form hereon
entitled "Option to Elect Repayment" duly completed or (ii) a telegram, telex,
facsimile transmission, or a letter from a member of a national securities
exchange or the National Association of Securities Dealers, Inc. or a commercial
bank or trust company in the United States setting forth the name of the holder
hereof, the principal amount of this Note, the principal amount of this Note to
be repaid, the certificate number or a description of the tenor and terms of
this Note, a statement that the option to elect repayment is being exercised
thereby, and a guarantee that this Note, together with the form hereon entitled
"Option to Elect Repayment" duly completed, will be received by the Trustee or
the Designated Agent not later than the fifth Business Day after the date of
such telegram, telex, facsimile transmission or letter, provided that such
telegram, telex, facsimile transmission or letter shall only be effective if
this Note and duly completed form are received by the Trustee or the Designated
Agent by such fifth Business Day. Exercise of such repayment option by the
holder hereof will be irrevocable. In the event of repayment of this Note in
part only, a new Note of like tenor for the unrepaid portion hereof and
otherwise having the same terms as this Note shall be issued in the name of the
holder hereof upon the presentation and surrender hereof.
If this Note is an Original Issue Discount Note as specified on the
face hereof, the amount payable to the holder of this Note in the event of
redemption, repayment or acceleration of maturity of this Note will be equal to
the sum of (i) the Issue Price specified on the face hereof (increased by any
accruals of the Discount, as defined below) and, in the event of any redemption
of this Note (if applicable), multiplied by the Initial Redemption Percentage
(as adjusted by the Annual Redemption Percentage Reduction, if applicable) and
(ii) any unpaid interest on this Note accrued from the Original Issue Date to
the Redemption Date, Repayment Date or date of acceleration of maturity, as the
case may be. The difference between the Issue Price and 100% of the principal
amount of this Note is referred to herein as the "Discount."
For purposes of determining the amount of Discount that has accrued as
of any Redemption Date, Repayment Date or date of acceleration of maturity of
this Note, such Discount will be accrued using a constant yield method. The
constant yield will be calculated using a 30-day month, 360-day year convention,
a compounding period that, except for the Initial Period (as defined below),
corresponds to the shortest period between Interest Payment Dates (with ratable
accruals within a compounding period), a coupon rate equal to the initial
23
coupon rate applicable to this Note and an assumption that the maturity of this
Note will not be accelerated. If the period from the Original Issue Date to the
initial Interest Payment Date (the "Initial Period") is shorter than the
compounding period for this Note, a proportionate amount of the yield for an
entire compounding period will be accrued. If the Initial Period is longer than
the compounding period, then such period will be divided into a regular
compounding period and a short period, with the short period being treated as
provided in the preceding sentence.
The interest rate borne by this Note will be determined as follows:
(i) Unless the Interest Category of this Note is specified on the
face hereof as a "Floating Rate/Fixed Rate Note" or an "Inverse Floating Rate
Note" or as otherwise specified as Other/Additional Provisions on the face
hereof or in an Addendum hereto, this Note shall be designated as a "Regular
Floating Rate Note" and, except as set forth below or specified on the face
hereof or in an Addendum hereto, shall bear interest at the rate determined by
reference to the applicable Interest Rate Basis or Bases (a) plus or minus the
Spread, if any, and/or (b) multiplied by the Spread Multiplier, if any, in each
case as specified on the face hereof.
Commencing on the Initial Interest Reset Date, the rate at which
interest on this Note shall be payable shall be reset as of each Interest Reset
Date specified on the face hereof; provided, however, that the interest rate in
effect for the period, if any, from the Original Issue Date to the Initial
Interest Reset Date shall be the Initial Interest Rate.
(ii) If the Interest Category of this Note is specified on the face
hereof as a "Floating Rate/Fixed Rate Note", then, except as set forth below or
specified on the face hereof or in an Addendum hereto, this Note shall bear
interest at the rate determined by reference to the applicable Interest Rate
Basis or Bases (a) plus or minus the Spread, if any, and/or (b) multiplied by
the Spread Multiplier, if any. Commencing on the Initial Interest Reset Date,
the rate at which interest on this Note shall be payable shall be reset as of
each Interest Reset Date; provided, however, that (y) the interest rate in
effect for the period, if any, from the Original Issue Date to the Initial
Interest Reset Date shall be the Initial Interest Rate and (z) the interest rate
in effect for the period commencing on the Fixed Rate Commencement Date
specified on the face hereof to the Maturity Date shall be the Fixed Interest
Rate specified on the face hereof or, if no such Fixed Interest Rate is
specified, the interest rate in effect hereon on the day immediately preceding
the Fixed Rate Commencement Date.
(iii) If the Interest Category of this Note is specified on the face
hereof as an "Inverse Floating Rate Note," then, except as set forth below or
specified on the face hereof or in an Addendum hereto, this Note shall bear
interest at the Fixed Interest Rate minus the rate determined by reference to
the applicable Interest Rate Basis or Bases (a) plus or minus the Spread, if
any, and/or (b) multiplied by the Spread Multiplier, if any; provided, however,
that, unless otherwise specified on the face hereof or in an Addendum hereto,
the interest rate hereon shall not be less than zero. Commencing on the Initial
Interest Reset Date, the rate at which interest on this Note shall be payable
shall be reset as of each Interest Reset Date;
24
provided, however, that the interest rate in effect for the period, if any, from
the Original Issue Date to the Initial Interest Reset Date shall be the Initial
Interest Rate.
Except as set forth above or specified on the face hereof or in an
Addendum hereto, the interest rate in effect on each day shall be (i) if such
day is an Interest Reset Date, the interest rate determined as of the Interest
Determination Date (as defined below) immediately preceding such Interest Reset
Date or (ii) if such day is not an Interest Reset Date, the interest rate
determined as of the Interest Determination Date immediately preceding the most
recent Interest Reset Date. If any Interest Reset Date would otherwise be a day
that is not a Business Day, such Interest Reset Date shall be postponed to the
next succeeding Business Day, except that if LIBOR is an applicable Interest
Rate Basis and such Business Day falls in the next succeeding calendar month,
such Interest Reset Date shall be the immediately preceding Business Day. In
addition, if the Treasury Rate is an applicable Interest Rate Basis and the
Interest Determination Date would otherwise fall on an Interest Reset Date, then
such Interest Reset Date will be postponed to the next succeeding Business Day.
The interest rate applicable to each Interest Reset Period commencing
on the related Interest Reset Date will be determined by the Calculation Agent
as of the applicable Interest Determination Date and will be calculated by the
Calculation Agent on or prior to the Calculation Date (as defined below), except
with respect to LIBOR and the Eleventh District Cost of Funds Rate, which will
be calculated on such Interest Determination Date. The "Interest Determination
Date" with respect to the CD Rate, the CMT Rate, the Commercial Paper Rate, the
Federal Funds Rate and the Prime Rate will be the second Business Day
immediately preceding the applicable Interest Reset Date; the "Interest
Determination Date" with respect to the Eleventh District Cost of Funds Rate
shall be the last business day of the month immediately preceding the applicable
Interest Reset Date on which the Federal Home Loan Bank of San Francisco (the
"FHLB of San Francisco") publishes the Index (as defined below); and the
"Interest Determination Date" with respect to LIBOR shall be the second London
Business Day immediately preceding the applicable Interest Reset Date, unless
the Index Currency is British pounds sterling, in which case the "Interest
Determination Date" will be the applicable Interest Reset Date. The "Interest
Determination Date", with respect to the Treasury Rate shall be the day in the
week in which the applicable Interest Reset Date falls on which day Treasury
Bills (as defined below) are normally auctioned (Treasury Bills are normally
sold at an auction held on Monday of each week, unless that day is a legal
holiday, in which case the auction is normally held on the following Tuesday,
except that such auction may be held on the preceding Friday); provided,
however, that if an auction is held on the Friday of the week preceding the
applicable Interest Reset Date, the "Interest Determination Date" shall be such
preceding Friday. If the interest rate of this Note is determined with reference
to two or more Interest Rate Bases specified on the face hereof, the "Interest
Determination Date" pertaining to this Note shall be the most recent Business
Day which is at least two Business Days prior to the applicable Interest Reset
Date on which each Interest Rate Basis is determinable. Each Interest Rate Basis
shall be determined as of such date, and the applicable interest rate shall take
effect on the applicable Interest Reset Date.
25
Unless otherwise specified on the face hereof or in an Addendum hereto,
the rate with respect to each Interest Rate Basis will be determined in
accordance with the following provisions.
CD Rate. If an Interest Rate Basis for this Note is specified on the
face hereof as the CD Rate, the CD Rate shall be determined as of the applicable
Interest Determination Date (a "CD Rate Interest Determination Date") as the
rate on such date for negotiable United States dollar certificates of deposit
having the Index Maturity specified on the face hereof as published by the Board
of Governors of the Federal Reserve System in "Statistical Release H.15(519),
Selected Interest Rates" or any successor publication ("H.15(519)") under the
heading "CDS (Secondary Market)," or, if not published by 3:00 P.M., New York
City time, on the related Calculation Date, the rate on such CD Rate Interest
Determination Date for negotiable United States dollar certificates of deposit
of the Index Maturity as published by the Federal Reserve Bank of New York in
its daily statistical release "Composite 3:30 P.M. Quotations for United States
Government Securities" or any successor publication ("Composite Quotations")
under the heading "Certificates of Deposit." If such rate is not yet published
in either H.15(519) or Composite Quotations by 3:00 P.M., New York City time, on
the related Calculation Date, then the CD Rate on such CD Rate Interest
Determination Date will be calculated by the Calculation Agent specified on the
face hereof and will be the arithmetic mean of the secondary market offered
rates as of 10:00 A.M., New York City time, on such CD Rate Interest
Determination Date, of three leading nonbank dealers in negotiable United States
dollar certificates of deposit in The City of New York selected by the
Calculation Agent for negotiable United States dollar certificates of deposit of
major United States money center banks in the market for negotiable United
States dollar certificates of deposit with a remaining maturity closest to the
Index Maturity in an amount that is representative for a single transaction in
that market at that time; provided, however, that if the dealers so selected by
the Calculation Agent are not quoting as mentioned in this sentence, the CD Rate
determined as of such CD Rate Interest Determination Date will be the CD Rate in
effect on such CD Rate Interest Determination Date.
CMT Rate. If an Interest Rate Basis for this Note is specified on the
face hereof as the CMT Rate, the CMT Rate shall be determined as of the
applicable Interest Determination Date (a "CMT Rate Interest Determination
Date") as the rate displayed on the Designated CMT Telerate Page (as defined
below) under the caption ". . . Treasury Constant Maturities . . . Federal
Reserve Board Release H.15 . . . Mondays Approximately 3:45 P.M.," under the
column for the Designated CMT Maturity Index (as defined below) for (i) if the
Designated CMT Telerate Page is 7055, the rate on such CMT Rate Interest
Determination Date and (ii) if the Designated CMT Telerate Page is 7052, the
weekly or monthly average, as specified on the face hereof, for the week or
month, as applicable, ended immediately preceding the week or month, as
applicable, in which the related CMT Rate Interest Determination Date occurs. If
such rate is no longer displayed on the relevant page or is not displayed by
3:00 P.M., New York City time, on the related Calculation Date, then the CMT
Rate for such CMT Rate Interest Determination Date will be such treasury
constant maturity rate for the Designated CMT Maturity Index as published in
H.15(519). If such rate is no longer published or is not published by 3:00 P.M.,
New York City time, on the related Calculation Date, then the CMT
26
Rate on such CMT Rate Interest Determination Date will be such treasury constant
maturity rate for the Designated CMT Maturity Index (or other United States
Treasury rate for the Designated CMT Maturity Index) for the CMT Rate Interest
Determination Date with respect to such Interest Reset Date as may then be
published by either the Board of Governors of the Federal Reserve System or the
United States Department of the Treasury that the Calculation Agent determines
to be comparable to the rate formerly displayed on the Designated CMT Telerate
Page and published in H.15(519). If such information is not provided by 3:00
P.M., New York City time, on the related Calculation Date, then the CMT Rate on
the CMT Rate Interest Determination Date will be calculated by the Calculation
Agent and will be a yield to maturity, based on the arithmetic mean of the
secondary market closing offer side prices as of approximately 3:30 P.M., New
York City time, on such CMT Rate Interest Determination Date reported, according
to their written records, by three leading primary United States government
securities dealers (each, a "Reference Dealer") in The City of New York selected
by the Calculation Agent (from five such Reference Dealers selected by the
Calculation Agent and eliminating the highest quotation (or, in the event of
equality, one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest)), for the most recently issued direct noncallable
fixed rate obligations of the United States ("Treasury Notes") with an original
maturity of approximately the Designated CMT Maturity Index and a remaining term
to maturity of not less than such Designated CMT Maturity Index minus one year.
If the Calculation Agent is unable to obtain three such Treasury Note
quotations, the CMT Rate on such CMT Rate Interest Determination Date will be
calculated by the Calculation Agent and will be a yield to maturity based on the
arithmetic mean of the secondary market offer side prices as of approximately
3:30 P.M., New York City time, on such CMT Rate Interest Determination Date of
three Reference Dealers in The City of New York (from five such Reference
Dealers selected by the Calculation Agent and eliminating the highest quotation
(or, in the event of equality, one of the highest) and the lowest quotation (or,
in the event of equality, one of the lowest)), for Treasury Notes with an
original maturity of the number of years that is the next highest to the
Designated CMT Maturity Index and a remaining term to maturity closest to the
Designated CMT Maturity Index and in an amount of at least U.S.$100 million. If
three or four (and not five) of such Reference Dealers are quoting as described
above, then the CMT Rate will be based on the arithmetic mean of the offer
prices obtained and neither the highest nor the lowest of such quotes will be
eliminated; provided, however, that if fewer than three Reference Dealers
selected by the Calculation Agent are quoting as mentioned herein, the CMT Rate
determined as of such CMT Rate Interest Determination Date will be the CMT Rate
in effect on such CMT Rate Interest Determination Date. If two Treasury Notes
with an original maturity as described in the second preceding sentence have
remaining terms to maturity equally close to the Designated CMT Maturity Index,
the Calculation Agent will obtain quotations for the Treasury Note with the
shorter remaining term to maturity and will use such quotations to calculate the
CMT Rate as set forth above.
"Designated CMT Telerate Page" means the display on the Dow Xxxxx
Telerate Service (or any successor service) on the page specified on the face
hereof (or any other page as may replace such page on that service (or any
successor service) for the purpose of displaying Treasury Constant Maturities as
reported in H.15(519)). If no such page is specified on the face hereof, the
Designated CMT Telerate Page shall be 7052, for the most recent week.
27
"Designated CMT Maturity Index" means the original period to maturity
of the United States Treasury securities (either one, two, three, five, seven,
10, 20 or 30 years) specified on the face hereof with respect to which the CMT
Rate will be calculated. If no such maturity is specified on the face hereof,
the Designated CMT Maturity Index shall be two years.
Commercial Paper Rate. If an Interest Rate Basis for this Note is
specified on the face hereof as the Commercial Paper Rate, the Commercial Paper
Rate shall be determined as of the applicable Interest Determination Date (a
"Commercial Paper Rate Interest Determination Date") as the Money Market Yield
(as defined below) on such date of the rate for commercial paper having the
Index Maturity as published in H.15(519) under the heading "Commercial Paper -
NonFinancial."
In the event that such rate is not published by 3:00 P.M., New York
City time, on the related Calculation Date, then the Commercial Paper Rate on
such Commercial Paper Rate Interest Determination Date will be the Money Market
Yield of the rate or commercial paper having the Index Maturity as published in
Composite Quotations under the heading "Commercial Paper" (with an Index
Maturity of one month or three months being deemed to be equivalent to an Index
Maturity of 30 days or 90 days, respectively). If such rate is not yet published
in either H.l5(519) or Composite Quotations by 3:00 P.M., New York City time, on
the related Calculation Date, then the Commercial Paper Rate on such Commercial
Paper Rate Interest Determination Date will be calculated by the Calculation
Agent and shall be the Money Market Yield of the arithmetic mean of the offered
rates at approximately 11:00 A.M., New York City time, on such Commercial Paper
Rate Interest Determination Date of three leading dealers of commercial paper in
The City of New York selected by the Calculation Agent for commercial paper
having the Index Maturity placed for an industrial issuer whose bond rating is
"AA," or the equivalent, from a nationally recognized statistical rating
organization; provided, however, that if the dealers so selected by the
Calculation Agent are not quoting as mentioned in this sentence, the Commercial
Paper Rate determined as of such Commercial Paper Rate Interest Determination
Date will be the Commercial Paper Rate in effect on such Commercial Paper Rate
Interest Determination Date.
"Money Market Yield" means a yield (expressed as a percentage)
calculated in accordance with the following formula:
Money Market Yield = D x 360 x 100
-------------
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal, and "M" refers to the actual
number of days in the Interest Period for which interest is being calculated.
Eleventh District Cost of Funds Rate. If an Interest Rate Basis for
this Note is specified on the face hereof as the Eleventh District Cost of Funds
Rate, the Eleventh District Cost of Funds Rate shall be determined as of the
applicable Interest Determination Date (an "Eleventh
28
District Cost of Funds Rate Interest Determination Date") as the rate equal to
the monthly weighted average cost of funds for the calendar month immediately
preceding the month in which such Eleventh District Cost of Funds Rate Interest
Determination Date falls, as set forth under the caption "llth District" on
Telerate Page 7058 as of 11:00 A.M., San Francisco time, on such Eleventh
District Cost of Funds Rate Interest Determination Date. If such rate does not
appear on Telerate Page 7058 on such Eleventh District Cost of Funds Rate
Interest Determination Date, then the Eleventh District Cost of Funds Rate on
such Eleventh District Cost of Funds Rate Interest Determination Date shall be
the monthly weighted average cost of funds paid by member institutions of the
Eleventh Federal Home Loan Bank District that was most recently announced (the
"Index") by the FHLB of San Francisco as such cost of funds for the calendar
month immediately preceding such Eleventh District Cost of Funds Rate Interest
Determination Date. If the FHLB of San Francisco fails to announce the Index on
or prior to such Eleventh District Cost of Funds Rate Interest Determination
Date for the calendar month immediately preceding such Eleventh District Cost of
Funds Rate Interest Determination Date, the Eleventh District Cost of Funds Rate
determined as of such Eleventh District Cost of Funds Rate Interest
Determination Date will be the Eleventh District Cost of Funds Rate in effect on
such Eleventh District Cost of Funds Rate Interest Determination Date.
Federal Funds Rate. If an Interest Rate Basis for this Note is
specified on the face hereof as the Federal Funds Rate, the Federal Funds Rate
shall be determined as of the applicable Interest Determination Date (a "Federal
Funds Rate Interest Determination Date") as the rate on such date for United
States dollar federal funds as published in H.15(519) under the heading "Federal
Funds (Effective)" or, if not published by 3:00 P.M., New York City time, on the
Calculation Date, the rate on such Federal Funds Rate Interest Determination
Date as published in Composite Quotations under the heading "Federal
Funds/Effective Rate." If such rate is not published in either H.15(519) or
Composite Quotations by 3:00 P.M., New York City time, on the related
Calculation Date, then the Federal Funds Rate on such Federal Funds Interest
Determination Date shall be calculated by the Calculation Agent and will be the
arithmetic mean of the rates for the last transaction in overnight United States
dollar federal funds arranged by three leading brokers of federal funds
transactions in The City of New York selected by the Calculation Agent, prior to
9:00 A.M., New York City time, on such Federal Funds Rate Interest Determination
Date; provided, however, that if the brokers so selected by the Calculation
Agent are not quoting as mentioned in this sentence, the Federal Funds Rate
determined as of such Federal Funds Rate Interest Determination Date will be the
Federal Funds Rate in effect on such Federal Funds Rate Interest Determination
Date.
LIBOR. If an Interest Rate Basis for this Note is specified on the face
hereof as LIBOR, LIBOR shall be determined by the Calculation Agent as of the
applicable Interest Determination Date (a "LIBOR Interest Determination Date")
in accordance with the following provisions:
(i) if (a) "LIBOR Reuters" is specified on the face
hereof, the arithmetic mean of the offered rates (unless the Designated
LIBOR Page (as defined below) by its terms provides only for a single
rate, in which case such single rate will be used) for deposits in the
Index Currency having the Index Maturity, commencing on the applica-
29
ble Interest Reset Date, that appear (or, if only a single rate is
required as aforesaid, appears) on the Designated LIBOR Page (as
defined below) as of 11:00 A.M., London time, on such LIBOR Interest
Determination Date, or (b) "LIBOR Telerate" is specified on the face
hereof, or if neither "LIBOR Reuters" nor "LIBOR Telerate" is specified
on the face hereof as the method for calculating LIBOR, the rate for
deposits in the Index Currency having the Index Maturity, commencing on
such Interest Reset Date, that appears on the Designated LIBOR Page as
of 11:00 A.M., London time, on such LIBOR Interest Determination Date.
If fewer than two such offered rates appear, or if no such rate
appears, as applicable, LIBOR on such LIBOR Interest Determination Date
shall be determined in accordance with the provisions described in
clause (ii) below.
(ii) With respect to a LIBOR Interest Determination Date
on which fewer than two offered rates appear, or no rate appears, as
the case may be, on the Designated LIBOR Page as specified in clause
(i) above, the Calculation Agent shall request the principal London
offices of each of four major reference banks in the London interbank
market, as selected by the Calculation Agent, to provide the
Calculation Agent with its offered quotation for deposits in the Index
Currency for the period of the Index Maturity, commencing on the
applicable Interest Reset Date, to prime banks in the London interbank
market at approximately 11:00 A.M., London time, on such LIBOR Interest
Determination Date and in a principal amount that is representative for
a single transaction in such Index Currency in such market at such
time. If at least two such quotations are so provided, then LIBOR on
such LIBOR Interest Determination Date will be the arithmetic mean of
such quotations. If fewer than two such quotations are so provided,
then LIBOR on such LIBOR Interest Determination Date will be the
arithmetic mean of the rates quoted at approximately 11:00 A.M., in the
applicable Principal Financial Center, on such LIBOR Interest
Determination Date by three major banks in such Principal Financial
Center selected by the Calculation Agent for loans in the Index
Currency to leading European banks, having the Index Maturity and in a
principal amount that is representative for a single transaction in
such Index Currency in such market at such time; provided, however,
that if the banks so selected by the Calculation Agent are not quoting
as mentioned in this sentence, LIBOR determined as of such LIBOR
Interest Determination Date shall be LIBOR in effect on such LIBOR
Interest Determination Date.
"Index Currency" means the currency or composite currency specified on
the face hereof as to which LIBOR shall be calculated.
If no such currency or composite currency is specified on the face hereof, the
Index Currency shall be United States dollars.
"Designated LIBOR Page" means (a) if "LIBOR Reuters" is specified on
the face hereof, the display on the Reuter Monitor Money Rates Service (or any
successor service) on the page specified on the face hereof (or any other page
as may replace such page on such service (or any successor service)), for the
purpose of displaying the London interbank rates of
30
major banks for the Index Currency, or (b) if "LIBOR Telerate" is specified on
the face hereof or neither "LIBOR Reuters" nor "LIBOR Telerate" is specified on
the face hereof as the method for calculating LIBOR, the display on the Dow
Xxxxx Telerate Service (or any successor service) on the page specified on the
face hereof (or any other page as may replace such page on such service (or any
successor service)), for the purpose of displaying the London interbank rates of
major banks for the applicable Index Currency.
Prime Rate. If an Interest Rate Basis for this Note is specified on the
face hereto as the Prime Rate, the Prime Rate shall be determined as of the
applicable Interest Determination Date (a "Prime Rate Interest Determination
Date") as the rate on such date as such rate is published in H.15(519) under the
heading "Bank Prime Loan." If such rate is not published prior to 3:00 P.M., New
York City time, on the related Calculation Date, then the Prime Rate shall be
the arithmetic mean of the rates of interest publicly announced by each bank
that appears on the Reuters Screen USPRIME1 Page (as defined below) as such
bank's prime rate or base lending rate as in effect for such Prime Rate Interest
Determination Date. If fewer than four such rates appear on the Reuters Screen
USPRIME1 Page for such Prime Rate Interest Determination Date, then the Prime
Rate shall be the arithmetic mean of the prime rates quoted on the basis of the
actual number of days in the year divided by a 360-day year as of the close of
business on such Prime Rate Interest Determination Date by four major money
center banks in The City of New York selected by the Calculation Agent. If fewer
than four such quotations are so provided, the Prime Rate shall be the
arithmetic mean of four prime rates quoted on the basis of the actual number of
days in the year divided by a 360-day year as of the close of business on such
Prime Rate Interest Determination Date as furnished in The City of New York by
the major money center banks, if any, that have provided such quotations and by
a reasonable number of substitute banks or trust companies to obtain four such
prime rate quotations, provided such substitute banks or trust companies are
organized and doing business under the laws of the United States, or any State
thereof, each having total equity capital of at least U.S.$500 million and being
subject to supervision or examination by Federal or State authority, selected by
the Calculation Agent to provide such rate or rates; provided, however, that if
the banks or trust companies so selected by the Calculation Agent are not
quoting as mentioned in this sentence, the Prime Rate determined as of such
Prime Rate Interest Determination Date will be the Prime Rate in effect on such
Prime Rate Interest Determination Date.
"Reuters Screen USPRIME1 Page" means the display designated as page
"USPRIME1" on the Reuter Monitor Money Rates Service (or any successor service)
(or such other page as may replace the USPRIME1 page on such service (or any
successor service) for the purpose of displaying prime rates or base lending
rates of major United States banks).
Treasury Rate. If an Interest Rate Basis for this Note is specified on
the face hereof as the Treasury Rate, the Treasury Rate shall be determined as
of the applicable Interest Determination Date (a "Treasury Rate Interest
Determination Date") as the rate from the auction held on such Treasury Rate
Interest Determination Date (the "Auction") of direct obligations of the United
States ("Treasury Bills") having the Index Maturity, as such rate is published
in H.15(519) under the heading "Treasury bills-auction average (investment)" or,
if not published by 3:00 P.M., New York City time, on the related Calculation
Date, the auction average rate
31
of such Treasury Bills (expressed as a bond equivalent on the basis of a year of
365 or 366 days, as applicable, and applied on a daily basis) as otherwise
announced by the United States Department of the Treasury. In the event that the
results of the Auction of Treasury Bills having the Index Maturity are not
reported as provided above by 3:00 P.M., New York City time, on such Calculation
Date, or if no such Auction is held, then the Treasury Rate shall be calculated
by the Calculation Agent and shall be a yield to maturity (expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as applicable, and applied
on a daily basis) of the arithmetic mean of the secondary market bid rates, as
of approximately 3:30 P.M., New York City time, on such Treasury Rate Interest
Determination Date, of three leading primary United States government securities
dealers selected by the Calculation Agent, for the issue of Treasury Bills with
a remaining maturity closest to the Index Maturity; provided, however, that if
the dealers so selected by the Calculation Agent are not quoting as mentioned in
this sentence, the Treasury Rate determined as of such Treasury Rate Interest
Determination Date will be the Treasury Rate in effect on such Treasury Rate
Interest Determination Date.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, in each case as specified on the face hereof. The
interest rate on this Note will in no event be higher than the maximum rate
permitted by New York law, as the same may be modified by United States law of
general application.
The "Calculation Date", if applicable, pertaining to any Interest
Determination Date shall be the earlier of (i) the tenth calendar day after such
Interest Determination Date or, if such day is not a Business Day, the next
succeeding Business Day or (ii) the Business Day immediately preceding the
applicable Interest Payment Date or the Maturity Date, as the case may be. At
the request of the Holder hereof, the Calculation Agent will provide to the
Holder hereof the interest rate hereon then in effect and, if determined, the
interest rate that will become effective as a result of a determination made for
the next succeeding Interest Reset Date.
Accrued interest hereon shall be an amount calculated by multiplying
the principal amount hereof by an accrued interest factor. Such accrued interest
factor shall be computed by adding the interest factor calculated for each day
in the applicable Interest Period. Unless otherwise specified as the Day Count
Convention on the face hereof, the interest factor for each such date shall be
computed by dividing the interest rate applicable to such day by 360 if the CD
Rate, the Commercial Paper Rate, the Eleventh District Cost of Funds Rate, the
Federal Funds Rate, LIBOR or the Prime Rate is an applicable Interest Rate Basis
or by the actual number of days in the year if the CMT Rate or the Treasury Rate
is an applicable Interest Rate Basis. Unless otherwise specified as the Day
Count Convention on the face hereof, the interest factor for this Note, if the
interest rate is calculated with reference to two or more Interest Rate Bases,
shall be calculated in each period in the same manner as if only the Applicable
Interest Rate Basis specified on the face hereof applied. All percentages
resulting from any calculation on this Note shall be rounded to the nearest one
hundred-thousandth of a percentage point, with five one-millionths of a
percentage point
32
rounded upwards (e.g., 5.876545% (or .05876545) would be rounded to 5.87655% (or
.0587655)), and all amounts used in or resulting from such calculation on this
Note shall be rounded, in the case of United States dollars, to the nearest cent
or, in the case of a Specified Currency other than United States dollars or a
composite currency, to the nearest unit (with one-half cent or unit being
rounded upwards).
If an Event of Default, as defined in the Indenture, 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.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Notes or (ii) certain covenants and Events of Default with
respect to the Notes, in each case upon compliance with certain conditions set
forth therein, which provisions apply to the Notes.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Partnership and the rights of the holders of the Securities at any time by the
Partnership and the Trustee with the consent of the holders of not less than a
majority of the aggregate principal amount of all Securities at the time
outstanding and affected thereby. The Indenture also contains provisions
permitting the holders of not less than a majority of the aggregate principal
amount of the outstanding Securities of any series, on behalf of the holders of
all such Securities, to waive compliance by the Partnership with certain
provisions of the Indenture. Furthermore, provisions in the Indenture permit the
holders of not less than a majority of the aggregate principal amount of the
outstanding Securities of any series, in certain instances, to waive, on behalf
of all of the holders of Securities of such series, 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 other Notes issued upon the registration of
transfer hereof or in exchange hereof 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 Partnership, which
is absolute and unconditional, to pay principal, premium, if any, and interest
in respect of this Note at the times, places and rate or formula, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, the transfer of this Note is registrable in the Security
Register of the Partnership upon surrender of this Note for registration of
transfer at the office or agency of the Partnership in any place where the
principal hereof and any premium or interest hereon are payable, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Partnership and the Security Registrar, duly executed by, the holder hereof
or by his attorney duly authorized in writing, and thereupon one or more new
Notes, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
33
As provided in the Indenture and subject to certain limitations therein
and herein set forth, this Note is exchangeable for a like aggregate principal
amount of Notes of different authorized denominations but otherwise having the
same terms and conditions, as requested by the holder hereof surrendering the
same.
No service charge shall be made for any such registration of transfer
or exchange, but the Partnership 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
Partnership, the Trustee and any agent of the Partnership or the Trustee may
treat the holder in whose name this Note is registered as the owner thereof for
all purposes, whether or not this Note be overdue, and neither the Partnership,
the Trustee nor any such agent shall be affected by notice to the contrary.
This Note and all documents, agreements, understandings and
arrangements relating to any transaction contemplated hereby or thereby have
been executed or entered into by the undersigned in his/her capacity as an
officer of the sole general partner of the Partnership which has been formed as
a Delaware limited partnership, and not individually, and neither the general
partner, officers, employees or limited partners of the Partnership shall be
bound or have any personal liability hereunder or thereunder. The holder of this
Note by accepting this Note waives and releases all such liability. This waiver
and release are part of the consideration for the issue of this Note. Each party
hereto shall look solely to the assets of the Partnership for satisfaction of
any liability of the Partnership in respect of this Note and all documents,
agreements, understandings and arrangements relating to any transaction
contemplated hereby or thereby and will not seek recourse or commence any action
against any of the general partner, officers, employees or limited partners of
the Partnership or any of their personal assets for the performance or payment
of any obligation hereunder or thereunder. The foregoing shall also apply to any
future documents, agreements, understandings, arrangements and transactions
between the parties hereto.
The Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of New York without regard to principles
of conflicts of laws.
34
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - ____________ Custodian ____________
(Cust) (Minor)
Under Uniform Gifts to Minors Act _____________________
(State)
Additional abbreviations may also be used though not in the above list.
35
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_______________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
________________________________________________________________________________
this Note and all rights thereunder hereby irrevocably constituting and
appointing - ______________________ Attorney to transfer this Note on the books
of the Trustee, with full power
________________________________________________________________________________
of substitution in the premises.
Dated:_____________________
NOTICE: The signature(s) on this Assignment must correspond with the
name(s) as written upon the face of this Note in every particular, without
alteration or enlargement or any change whatsoever.
36
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Partnership to repay this Note (or portion hereof specified below) pursuant to
its terms at a price equal to 100% of the principal amount to be repaid,
together with unpaid interest accrued hereon to the Repayment Date, to the
undersigned, at
________________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee or the Designated Agent must
receive at its corporate trust office in the Borough of Manhattan, The City of
New York, this Note with this "Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of U.S. $1,000 (or, if the
Specified Currency is other than United States dollars, the minimum Authorized
Denomination specified on the face hereof)) which the holder elects to have
repaid and specify the denomination or denominations (which shall be an
Authorized Denomination) of the Notes to be issued to the holder for the portion
of this Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid).
Principal Amount
to be Repaid: $_____________
Date:__________ Notice: The signature(s) on this Option to
Elect Repayment must correspond with the
name(s) as written upon the face of this
Note in every particular, without alteration
or enlargement or any change whatsoever.
37
EXHIBIT B
[FACE OF NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (THE "DEPOSITARY") (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) TO THE
ISSUER HEREOF OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY AND ANY PAYMENT
IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.(3)
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.(4)
REGISTERED [PRINCIPAL AMOUNT]
No. FXR-
CUSIP:*
SUMMIT PROPERTIES PARTNERSHIP, L.P.
MEDIUM-TERM NOTE
(Fixed Rate)
ORIGINAL ISSUE DATE: INTEREST RATE: % STATED MATURITY
INTEREST PAYMENT DEFAULT RATE: % DATE:
DATE(S) ____ and ____
Other:
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: % PERCENTAGE
REDUCTION: %
------------------------
(3) This paragraph applies to global Notes only.
(4) This paragraph applies to global Notes only.
38
OPTIONAL REPAYMENT CHECK IF AN ORIGINAL
DATE(S) ISSUE DISCOUNT NOTE
Issue Price: %
REPAYMENT PRICE: %
SPECIFIED CURRENCY: AUTHORIZED DENOMINATION: EXCHANGE RATE
[ ] United States dollars [ ] $1,000 and integral AGENT:
[ ] Other: multiples thereof
[ ] Other:
EXCHANGE RATE: ADDENDUM ATTACHED: OTHER/ADDITIONAL
U.S. $1.00 = ________ [ ] Yes PROVISIONS:
[ ] No
Summit Properties Partnership, L.P., a limited partnership duly
organized and existing under the laws of Delaware (hereinafter referred to as
the "Partnership," which term includes any successor entity under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
_______________________, or registered assigns, the principal sum of
_____________________, on the Stated Maturity Date specified above (or any
Redemption Date or Repayment Date, each as defined on the reverse hereof) (each
such Stated Maturity Date, Redemption Date or Repayment Date being hereinafter
referred to as the "Maturity Date" with respect to the principal repayable on
such date) and to pay interest thereon, at the Interest Rate per annum specific
above, until the principal hereof is paid or duly made available for payment,
and (to the extent that the payment of such interest shall be legally
enforceable) at the Default Rate per annum specified above on any overdue
principal, premium and/or interest, including any overdue sinking fund or
redemption payment. The Partnership will pay interest in arrears on each
Interest Payment Date, if any, specified above (each, an "Interest Payment
Date"), commencing with the first Interest Payment Date next succeeding the
Original Issue Date specified above, and on the Maturity Date; provided,
however, that if the Original Issue Date occurs between a Record Date (as
defined below) and the next succeeding Interest Payment Date, interest payments
will commence on the second Interest Payment Date next succeeding the Original
Issue Date to the holder of this Note on the Record Date with respect to such
second Interest Payment Date. Interest on this Note will be computed on the
basis of a 360-day year of twelve 30-day months.
Interest on this Note will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for (or from, and including, the Original Issue Date if no interest has been
paid or duly provided for) to, but excluding, the applicable Interest Payment
Date or the Maturity Date, as the case may be (each, an "Interest Period"). The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, subject to certain exceptions described herein, be paid to
39
the person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the fifteenth calendar day (whether or
not a Business Day, as defined below) immediately preceding such Interest
Payment Date (the "Record Date"); provided, however, that interest payable on
the Maturity Date will be payable to the person to whom the principal hereto and
premium, if any, hereon shall be payable. Any such interest not so punctually
paid or duly provided for ("Defaulted Interest") will forthwith cease to be
payable to the holder on any Record Date, and shall be paid to the person in
whose name this Note is registered at the close of business on a special record
date (the "Special Record Date") for the payment of such Defaulted Interest to
be fixed by the Trustee hereinafter referred to, notice whereof shall be given
to the holder of this Note by the Trustee 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 this Note may be listed, and upon such notice as may be
required by such exchange, all as more fully provided for in the Indenture.
Payment of principal, premium, if any, and interest in respect of this
Note due on the Maturity Date or any prior date on which the principal or an
installment of principal of this Note becomes due and payable, whether by the
declaration of acceleration or otherwise, will be made in immediately available
funds upon presentation and surrender of this Note (and, with respect to any
applicable repayment of this Note, upon presentation and surrender of this Note
and a duly completed election form as contemplated on the reverse hereof) at the
office or agency maintained by the Partnership for that purpose in the Borough
of Manhattan, The City of New York, currently the office of the Trustee or the
Designated Agent; provided, however, that if the Specified Currency specified
above is other than United States dollars and such payment is to be made in the
Specified Currency in accordance with the provisions set forth below, such
payment may be made by wire transfer of immediately available funds to an
account with a bank designated by the holder hereof at least 15 calendar days
prior to the Maturity Date, provided that such bank has appropriate facilities
therefor and that this Note (and, if applicable, a duly completed repayment
election form) is presented and surrendered at the aforementioned office or
agency maintained by the Partnership in time for the Trustee or the Designated
Agent to make such payment in such funds in accordance with its normal
procedures. Payment of interest due on any Interest Payment Date other than the
Maturity Date will be made at the aforementioned office or agency maintained by
the Partnership or, at the option of the Partnership, by check mailed to the
address of the person entitled thereto as such address shall appear in the
Security Register maintained by the Trustee or the Designated Agent; provided,
however, that a holder of U.S. $10,000,000 (or, if the Specified Currency is
other than United States dollars, the equivalent thereof in the Specified
Currency) or more in aggregate principal amount of Notes (whether having
identical or different terms and pro- visions) will be entitled to receive
interest payments on any Interest Payment Date other than the Maturity Date by
wire transfer of immediately available funds if appropriate wire transfer
instructions have been received in writing by the Trustee or the Designated
Agent not less than 15 calendar days prior to such Interest Payment Date. Any
such wire transfer instructions received by the Trustee or the Designated Agent
shall remain in effect until revoked by such holder.
40
If any Interest Payment Date or the Maturity Date falls on a day that
is not a Business Day, the required payment of principal, premium, if any,
and/or interest shall be made on the next succeeding Business Day with the same
force and effect as if made on the date such payment was due, and no interest
shall accrue with respect to such payment for the period from and after such
Interest Payment Date or the Maturity Date, as the case may be, to the date of
such payment on the next succeeding Business Day.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking institutions
are authorized or required by law, regulation or executive order to close in The
City of New York, Chicago, or Charlotte, North Carolina; provided, however, that
if the Specified Currency is other than United States dollars, such day is also
not a day on which banking institutions are authorized or required by law,
regulation or executive order to close in the Principal Financial Center (as
defined below) of the country issuing the Specified Currency (or, if the
Specified Currency is European Currency Units ("ECU"), such day is not a day
that appears as an ECU no-settlement day on the display designated as "ISDE" on
the Xxxxxx Monitor Money Rates Service (or a day so designated by the ECU
Banking Association), or, if ECU non-settlement days do not appear on that page
(and are not so designated), is not a day on which payments in ECU cannot be
settled in the international interbank market). Principal Financial Center means
the capital city of the country issuing the Specified Currency, except that with
respect to United States dollars, Australian dollars, Deutsche marks, Dutch
guilders, Italian lire, Swiss francs and ECU, the Principal Financial Center
shall be The City of New York, Sydney, Frankfurt, Amsterdam, Milan, Zurich and
Luxembourg, respectively.
The Partnership is obligated to make payments of principal, premium, if
any, and interest in respect of this Note in the Specified Currency (or, if the
Specified Currency is not at the time of such payment legal tender for the
payment of public and private debts, in such other coin or currency of the
country which issued the Specified Currency as at the time of such payment is
legal tender for the payment of such debts). If the Specified Currency is other
than United States dollars, except as provided below, any such amounts so
payable by the Partnership will be converted by the Exchange Rate Agent
specified above into United States dollars for payment to the holder of this
Note.
If the Specified Currency is other than United States dollars, the
holder of this Note may elect to receive such amounts in such Specified
Currency. If the holder of this Note shall not have duly made an election to
receive all or a specified portion of any payment of principal, premium, if any,
and/or interest in respect of this Note in the Specified Currency, any United
States dollar amount to be received by the holder of this Note will be based on
the highest bid quotation in The City of New York received by the Exchange Rate
Agent at approximately 11:00 A.M., New York City time, on the second Business
Day preceding the applicable payment date from three recognized foreign exchange
dealers (one of whom may be the Exchange Rate Agent) selected by the Exchange
Rate Agent and approved by the Partnership for the purchase by the quoting
dealer of the Specified Currency for United States dollars for settlement on
such payment date in the aggregate amount of such Specified Currency payable to
all holders of Foreign Currency Notes scheduled to receive United States dollar
41
payments and at which the applicable dealer commits to execute a contract. All
currency exchange costs will be borne by the holder of this Note by deductions
from such payments. If three such bid quotations are not available, payments on
this Note will be made in the Specified Currency.
If the Specified Currency is other than United States dollars, the
holder of this Note may elect to receive all or a specified portion of any
payment of principal, premium, if any, and/or interest in respect of this Note
in the Specified Currency by submitting a written request for such payment to
the Trustee or the Designated Agent at its corporate trust Office in The City of
New York on or prior to the applicable Record Date or at least 15 calendar days
prior to the Maturity Date, as the case may be. Such written request may be
mailed or hand delivered or sent by cable, telex or other form of facsimile
transmission. The holder of this Note may elect to receive all or a specified
portion of all future payments in the Specified Currency in respect of such
principal, premium, if any, and/or interest and need not file a separate
election for each payment. Such election will remain in effect until revoked by
written notice to the Trustee or the Designated Agent, but written notice of any
such revocation must be received by the Trustee or the Designated Agent on or
prior to the applicable Record Date or at least 15 calendar days prior to the
Maturity Date, as the case may be.
If the Specified Currency is other than United States dollars or a
composite currency and the holder of this Note shall have duly made an election
to receive all or a specified portion of any payment of principal, premium, if
any, and/or interest in respect of this Note in the Specified Currency and if
the Specified Currency is not available due to the imposition of exchange
controls or other circumstances beyond the reasonable control of the
Partnership, the Partnership will be entitled to satisfy its obligations to the
holder of this Note by making such payment in United States dollars on the basis
of the Market Exchange Rate (as defined below) on the second Business Day prior
to such payment date or, if such Market Exchange Rate is not then available, on
the basis of the most recently available Market Exchange Rate or as otherwise
specified on the face hereof. The "Market Exchange Rate" for the Specified
Currency means the noon dollar buying rate in The City of New York for cable
transfers for such Specified Currency as certified for customs purposes by (or
if not so certified, as otherwise determined by) the Federal Reserve Bank of New
York. Any payment made under such circumstances in United States dollars will
not constitute an Event of Default (as defined in the Indenture) with respect to
this Note.
If the Specified Currency is a composite currency and the holder of
this Note shall have duly made an election to receive all or a specified portion
of any payment of principal, premium, if any, and/or interest in respect of this
Note in the Specified Currency and if such composite currency is unavailable due
to the imposition of exchange controls or other circumstances beyond the
reasonable control of the Partnership, then the Partnership will be entitled to
satisfy its obligations to the holder of this Note by making such payment in
United States dollars. The amount of each payment in United States dollars shall
be computed by the Exchange Rate Agent on the basis of the equivalent of the
composite currency in United States dollars. The component currencies of the
composite currency for this purpose (collectively, the "Component Currencies"
and each, a "Component Currency") shall be the currency amounts
42
that were components of the composite currency as of the last day on which the
composite currency was used. The equivalent of the composite currency in United
States dollars shall be calculated by aggregating the United States dollar
equivalents of the Component Currencies. The United States dollar equivalent of
each of the Component Currencies shall be determined by the Exchange Rate Agent
on the basis of the most recently available Market Exchange Rate for each such
Component Currency, or as otherwise specified on the face hereof.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the holder of this Note.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof and, if so specified above on the face hereof, in
the Addendum hereto, which further provisions shall have the same force and
effect as if set forth on the face hereof.
Notwithstanding any provisions to the contrary contained herein, if the
face of this Note specifies that an Addendum is attached hereto or that
"Other/Additional Provisions" apply to this Note, this Note shall be subject to
the terms set forth in such Addendum or such "Other/Additional Provisions."
Unless the Certificate of Authentication hereon has been executed by
the Trustee or its Authenticating Agent by manual signature, this Note shall not
be entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
43
IN WITNESS WHEREOF, Summit Properties Partnership, L.P. has caused this
Note to be duly executed under its seal.
Dated:__________ SUMMIT PROPERTIES PARTNERSHIP, L.P.
By: Summit Properties Inc.,
its General Partner
By:
-----------------------------------------
Xxxxxxx X. Xxxxxxx
President and Chief Executive Officer
(SEAL)
Attest:
-------------------------
Xxxxxxx X. Xxxxxx
Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Dated: FIRST UNION NATIONAL BANK,
as Trustee
By
------------------------------------------
Authorized Signatory
44
[REVERSE OF NOTE]
SUMMIT PROPERTIES PARTNERSHIP, L.P.
MEDIUM-TERM NOTE
(Fixed Rate)
This Note is one of a duly authorized series of Securities (the
"Securities") of the Partnership issued and to be issued under an Indenture,
dated as of August 7, 1997 as supplemented by the Third Supplemental Indenture
dated as of May __, 1998, as further amended, modified or supplemented from time
to time (the "Indenture"), between the Partnership and First Union National
Bank, as Trustee (the "Trustee," which term includes any successor trustee under
the Indenture), 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 Partnership, the Trustee and
the holders of the Securities, and of the terms upon which the Securities are,
and are to be, authenticated and delivered. This Note is one of the series of
Securities designated as "Medium-Term Notes Due Nine Months or More from Date of
Issue" (the "Notes"). All terms used but not defined in this Note or in an
Addendum hereto shall have the meanings assigned to such terms in the Indenture
or on the face hereof, as the case may be.
This Note is issuable only in registered form without coupons in
minimum denominations of U.S. $1,000 and integral multiples thereof or the
minimum Authorized Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless otherwise
specified on the face hereof in accordance with the provisions of the following
two paragraphs, will not be redeemable or repayable prior to the Stated Maturity
Date.
This Note will be subject to redemption at the option of the
Partnership on any date on and after the Initial Redemption Date, if any,
specified on the face hereof, in whole or from time to time in part in
increments of U.S. $1,000 or the minimum Authorized Denomination (provided that
any remaining principal amount hereof shall be at least U.S. $1,000 or such
minimum Authorized Denomination), at the Redemption Price (as defined below),
together with unpaid interest accrued thereon to the date fixed for redemption
(each, a "Redemption Date"), on notice given not more than 60 nor less than 30
calendar days prior to the Redemption Date and in accordance with the provisions
of the Indenture. The "Redemption Price" shall initially be the Initial
Redemption Percentage specified on the face hereof multiplied by the unpaid
principal amount of this Note to be redeemed. The Initial Redemption Percentage
shall decline at each anniversary of the Initial Redemption Date by the Annual
Redemption Percentage Reduction, if any, specified on the face hereof until the
Redemption Price is 100% of the unpaid principal amount to be redeemed. In the
event of redemption of this Note in part only, a new Note of like tenor for the
unredeemed portion hereof and otherwise having the same terms as this Note shall
be issued in the name of the holder hereof upon the presentation and surrender
hereof.
45
This Note will be subject to repayment by the Partnership at the option
of the holder hereof on the Optional Repayment Date(s), if any, specified on the
face hereof, in whole or in part in increments of U.S.$1,000 or the minimum
Authorized Denomination (provided that any remaining principal amount hereof
shall be at least U.S.$1,000 or such minimum Authorized Denomination), at a
repayment price equal to 100% of the unpaid principal amount to be repaid,
together with unpaid interest accrued thereon to the date fixed for repayment
(each, a "Repayment Date"). For this Note to be repaid, the Trustee or the
Designated Agent must receive at its office in the Borough of Manhattan, The
City of New York, referred to on the face hereof, at least 30 days but not more
than 60 days prior to the Repayment Date (i) this Note and the form hereon
entitled "Option to Elect Repayment" duly completed or (ii) a telegram, telex,
facsimile transmission, or a letter from a member of a national securities
exchange or the National Association of Securities Dealers, Inc. or a commercial
bank or trust company in the United States setting forth the name of the holder
hereof, the principal amount of this Note, the principal amount of this Note to
be repaid, the certificate number or a description of the tenor and terms of
this Note, a statement that the option to elect repayment is being exercised
thereby, and a guarantee that this Note, together with the form hereon entitled
"Option to Elect Repayment" duly completed, will be received by the Trustee or
the Designated Agent not later than the fifth Business Day after the date of
such telegram, telex, facsimile transmission or letter, provided that such
telegram, telex, facsimile transmission or letter shall only be effective if
this Note and duly completed form are received by the Trustee or the Designated
Agent by such fifth Business Day. Exercise of such repayment option by the
holder hereof will be irrevocable. In the event of repayment of this Note in
part only, a new Note of like tenor for the unrepaid portion hereof and
otherwise having the same terms as this Note shall be issued in the name of the
holder hereof upon the presentation and surrender hereof.
If this Note is an Original Issue Discount Note as specified on the
face hereof, the amount payable to the holder of this Note in the event of
redemption, repayment or acceleration of maturity of this Note will be equal to
the sum of (i) the Issue Price specified on the face hereof (increased by any
accruals of the Discount, as defined below) and, in the event of any redemption
of this Note (if applicable), multiplied by the Initial Redemption Percentage
(as adjusted by the Annual Redemption Percentage Reduction, if applicable) and
(ii) any unpaid interest on this Note accrued from the Original Issue Date to
the Redemption Date, Repayment Date or date of acceleration of maturity, as the
case may be. The difference between the Issue Price and 100% of the principal
amount of this Note is referred to herein as the "Discount."
For purposes of determining the amount of Discount that has accrued as
of any Redemption Date, Repayment Date or date of acceleration of maturity of
this Note, such Discount will be accrued using a constant yield method. The
constant yield will be calculated using a 30-day month, 360-day year convention,
a compounding period that, except for the Initial Period (as defined below),
corresponds to the shortest period between Interest Payment Dates (with ratable
accruals within a compounding period), a coupon rate equal to the initial coupon
rate applicable to this Note and an assumption that the maturity of this Note
will not be accelerated. If the period from the Original Issue Date to the
initial Interest Payment Date (the "Initial Period") is shorter than the
compounding period for this Note, a proportionate amount
46
of the yield for an entire compounding-period will be accrued. If the Initial
Period is longer than the compounding period, then such period will be divided
into a regular compounding period and a short period, with the short period
being treated as provided in the preceding sentence.
If an Event of Default, as defined in the Indenture, 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.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Notes or (ii) certain covenants and Events of Default with
respect to the Notes, in each case upon compliance with certain conditions set
forth therein, which provisions apply to the Notes.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Partnership and the rights of the holders of the Securities at any time by the
Partnership and the Trustee with the consent of the holders of not less than a
majority of the aggregate principal amount of all Securities at the time
outstanding and affected thereby. The Indenture also contains provisions
permitting the holders of not less than a majority of the aggregate principal
amount of the outstanding Securities of any series, on behalf of the holders of
all such Securities, to waive compliance by the Partnership with certain
provisions of the Indenture. Furthermore, provisions in the Indenture permit the
holders of not less than a majority of the aggregate principal amount of the
outstanding Securities of any series, in certain instances, to waive, on behalf
of all of the holders of Securities of such series, 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 other Notes issued upon the registration of
transfer hereof or in exchange heretofore 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 Partnership, which
is absolute and unconditional, to pay principal, premium, if any, and interest
in respect of this Note at the times, places and rate or formula, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, the transfer of this Note is registrable in the Security
Register of the Partnership upon surrender of this Note for registration of
transfer at the office or agency of the Partnership in any place where the
principal hereof and any premium or interest hereon are payable, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Partnership and the Security Registrar, duly executed by, the holder hereof
or by his attorney duly authorized in writing, and thereupon one or more new
Notes, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
47
As provided in the Indenture and subject to certain limitations therein
and herein set forth, this Note is exchangeable for a like aggregate principal
amount of Notes of different authorized denominations but otherwise having the
same terms and conditions, as requested by the holder hereof surrendering the
same.
No service charge shall be made for any such registration of transfer
or exchange, but the Partnership 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
Partnership, the Trustee and any agent of the Partnership or the Trustee may
treat the holder in whose name this Note is registered as the owner thereof for
all purposes, whether or not this Note be overdue, and neither the Partnership,
the Trustee nor any such agent shall be affected by notice to the contrary.
This Note and all documents, agreements, understandings and
arrangements relating to any transaction contemplated hereby or thereby have
been executed or entered into by the undersigned in his/her capacity as an
officer of the sole general partner of the Partnership which has been formed as
a Delaware limited partnership, and not individually, and neither the general
partner, officers, employees or limited partners of the Partnership shall be
bound or have any personal liability hereunder or thereunder. The holder of this
Note by accepting this Note waives and releases all such liability. This waiver
and release are part of the consideration for the issue of this Note. Each party
hereto shall look solely to the assets of the Partnership for satisfaction of
any liability of the Partnership in respect of this Note and all documents,
agreements, understandings and arrangements relating to any transaction
contemplated hereby or thereby and will not seek recourse or commence any action
against any of the trustees, officers or shareholders of the Partnership or any
of their personal assets for the performance or payment of any obligation
hereunder or thereunder. The foregoing shall also apply to any future documents,
agreements, understandings, arrangements and transactions between the parties
hereto.
The Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of New York without regard to its
principles of conflicts of laws.
48
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants
in common
UNIF GIFT MIN ACT - _________ Custodian _________
(Cust) (Minor)
Under Uniform Gifts to Minors Act _____________________
(State)
Additional abbreviations may also be used though not in the above list.
49
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
________________________________________
(Please print or typewrite name and address including postal zip code of
assignee) this Note and all rights thereunder hereby irrevocably constituting
and appointing Attorney to transfer this Note on the books of the Trustee, with
full power of substitution in the premises.
Dated:_____________________
NOTICE: The signature(s) on this Assignment must correspond with the
name(s) as written upon the face of this Note in every particular, without
alteration or enlargement or any change whatsoever.
50
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Partnership to repay this Note (or portion hereof specified below) pursuant to
its terms at a price equal to 100% of the principal amount to be repaid,
together with unpaid interest accrued hereon to the Repayment Date, to the
undersigned, at
_______________________________________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee or the Designated Agent must
receive at its corporate trust office in the Borough of Manhattan, The City of
New York, this Note with this "Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of U.S.$1,000 (or, if the
Specified Currency is other than United States dollars, the minimum Authorized
Denomination specified on the face hereof)) which the holder elects to have
repaid and specify the denomination or denominations (which shall be an
Authorized Denomination) of the Notes to be issued to the holder for the portion
of this Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid).
Principal Amount
to be Repaid: $____________
Date:_________________ Notice: The signature(s) on this Option to
Elect Repayment must correspond with the
name(s) as written upon the face of this
Note in every particular, without alteration
or enlargement or any change whatsoever.
