1
Exhibit 99.17.28
FOURTEENTH SUPPLEMENTAL INDENTURE
FOURTEENTH SUPPLEMENTAL INDENTURE, dated as of April 29, 1998 (this
"Fourteenth Supplemental Indenture"), among Xxxxxxx Properties, Inc., a
corporation organized under the laws of Maryland (the "General Partner"),
Xxxxxxx Properties, L.P., a limited partnership organized under the laws of
California (the "Issuer"), and U.S. Bank Trust National Association (formerly
known as First Trust of California, National Association), as Trustee (the
"Trustee").
W I T N E S S E T H:
WHEREAS, the Issuer, the General Partner and State Street Bank and Trust
Company ("State Street") executed and delivered an Indenture, dated as of
December 6, 1995 (as supplemented hereby, the "Indenture"), to provide for the
issuance by the Issuer from time to time of debt securities evidencing its
unsecured indebtedness;
WHEREAS, pursuant to the Ninth Supplemental Indenture, the Issuer and
the General Partner appointed the Trustee as trustee with respect to the series
of securities established by that Supplemental Indenture and future series of
securities under the Indenture, and the Trustee accepted such appointment;
WHEREAS, pursuant to the Ninth Supplemental Indenture, State Street
remains trustee of all series of securities prior to those established by the
Ninth Supplemental Indenture;
WHEREAS, pursuant to Board Resolution, the Issuer has authorized the
issuance of $25,000,000 of its 6.88% Notes Due April 30, 2007 (the "Notes");
WHEREAS, the Issuer desires to establish the terms of the Notes in
accordance with Section 301 of the Indenture and to establish the form of the
Notes in accordance with Section 201 of the Indenture.
ARTICLE 1
TERMS
SECTION 101. TERMS OF NOTES. The following terms relating to the Notes
are hereby established:
(1) The Notes shall constitute a series of Securities having the
title "6.88% Notes Due April 30, 2007."
(2) The aggregate principal amount of the Notes that may be
authenticated and delivered under the Indenture (except for Notes
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of,
-1-
2
other Notes pursuant to Sections 304, 305, 306, 906, 1107 or 1305 of the
Indenture) shall be up to $25,000,000.
(3) The entire outstanding principal of the Notes shall be
payable on April 30, 2007 (the "Stated Maturity Date").
(4) The rate at which the Notes shall bear interest shall be
6.88%; the date from which interest shall accrue shall be April 29,
1998; the Interest Payment Dates for the Notes on which interest will be
payable shall be April 30 and October 30 in each year, beginning October
30, 1998; the Regular Record Dates for the interest payable on the Notes
on any Interest Payment Date shall be the 15th calendar day preceding
the applicable Interest Payment Date; and the basis upon which interest
shall be calculated shall be that of a 360-day year consisting of twelve
30-day months.
(5) The Place of Payment where the principal of and interest on
the Notes shall be payable and Notes may be surrendered for the
registration of transfer or exchange shall be the Corporate Trust Office
of the Trustee in St. Xxxx, Minnesota. The place where notices or
demands to or upon the Issuer in respect of the Notes and the Indenture
may be served shall be the corporate trust office of the Trustee at Xxx
Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000.
(6) (A) The Notes may be redeemed at any time at the option of
the Issuer, in whole, or from time to time in part, at a redemption
price equal to the sum of (i) the principal amount of the Notes (or
portion thereof) being redeemed plus accrued interest thereon to the
redemption date and (ii) the Make-Whole Amount (as defined below), if
any, with respect to such Notes (or portion thereof) (the "Redemption
Price").
If notice has been given as provided in the Indenture and
funds for the redemption of any Notes (or any portion thereof) called
for redemption shall have been made available on the redemption date
referred to in such notice, such Notes (or any portion thereof) will
cease to bear interest on the date fixed for such redemption specified
in such notice and the only right of the Holders of the Notes will be to
receive payment of the Redemption Price, with respect to such Notes or
portion thereof so redeemed.
Notice of any optional redemption of any Notes (or any
portion thereof) will be given to Holders at their addresses, as shown
in the security register for the Notes, not more than 60 nor less than
30 days prior to the date fixed for redemption. The notice of redemption
will specify, among other items, the Redemption Price and the principal
amount of the Notes held by such Holder to be redeemed. On the third
Business Day preceding the date notice of redemption is given, the
Company will notify the Trustee of the Redemption Price and the Trustee
may rely and shall be fully protected in acting upon the determination
of the Company as to such Redemption Price.
-2-
3
The Issuer will notify the Trustee in writing at least 45
days prior to giving notice of redemption (or such shorter period as is
satisfactory to the Trustee in its sole discretion) of the aggregate
principal amount of Notes to be redeemed and their redemption date. If
less than all the Notes are to be redeemed at the option of the Issuer,
the Trustee shall select by lot, the Notes to be redeemed in whole or in
part.
In the event of redemption of the Notes in part only, a
new Note for the amount of the unredeemed portion thereof shall be
issued in the name of the Holder thereto, upon cancellation thereof.
(B) As used herein:
"Make-Whole Amount" means, in connection with any optional
redemption or accelerated payment of any Notes, the excess, if any, of
(i) the aggregate present value as of the date of such redemption or
accelerated payment of each dollar of principal being redeemed or paid
and the amount of interest (exclusive of interest accrued to the date of
redemption or accelerated payment) that would have been payable in
respect of each such dollar if such redemption or accelerated payment
had not been made, determined by discounting, on a semi-annual basis,
such principal and interest at the Reinvestment Rate (determined on the
third Business Day preceding the date such notice of redemption is given
or declaration of acceleration is made) from the respective dates on
which such principal and interest would have been payable if such
redemption or accelerated payment had not been made, over (ii) the
aggregate principal amount of the Notes being redeemed or paid.
"Reinvestment Rate" means 0.25% plus the arithmetic mean
of the yields under the respective heading "Week Ending" published in
the most recent Statistical Release under the caption "Treasury Constant
Maturities" for the maturity (rounded to the nearest month)
corresponding to the remaining life to maturity, as of the payment date
of the principal being redeemed or paid. If no maturity exactly
corresponds to such maturity, yields for the two published maturities
most closely corresponding to such maturity shall be calculated pursuant
to the immediately preceding sentence and the Reinvestment Rate shall be
interpolated or extrapolated from such yields on a straight-line basis,
rounding in each of such relevant periods to the nearest month. For the
purpose of calculating the Reinvestment Rate, the most recent
Statistical Release published prior to the date of determination of the
Make-Whole Amount shall be used.
"Statistical Release" means the statistical release
designated "H.15(519)" or any successor publication which is published
weekly by the Federal Reserve System and which establishes yields on
actively traded United States government securities adjusted to constant
maturities, or, if such statistical release is not published at the time
of any determination under the Indenture, then such other reasonably
comparable index which shall be designated by the Issuer.
-3-
4
(7) The Notes shall not be redeemable at the option of any Holder
thereof, upon the occurrence of any particular circumstances or
otherwise. The Notes will not have the benefit of any sinking fund.
(8) The Notes shall be issuable in denominations of $1,000 and
any integral multiple thereof.
(9) The Trustee shall also be the Security Registrar and Paying
Agent for the Notes.
(10) The entire outstanding principal amount plus the Make-Whole
Amount of the Notes shall be payable upon declaration of acceleration of
the maturity thereof pursuant to Section 502 of the Indenture.
(11) Payments of the principal of and interest on the Notes shall
be made in U.S. Dollars, and the Notes shall be denominated in U.S.
Dollars.
(12) The Notes will be payable on the Stated Maturity Date in an
amount equal to the principal amount thereof plus any unpaid interest
accrued to the Stated Maturity Date.
(13) The Holders of the Notes shall have no special rights in
addition to those provided in the Indenture upon the occurrence of any
particular events.
(14) (A) There shall be no deletions from, modifications of or
additions to the Events of Default with respect to the Notes set forth
in the Indenture.
(B) There shall be the following additions to the
covenants set forth in the Indenture with respect to the Notes, which
shall be effective only for so long as any of the Notes are Outstanding:
Limitations On Incurrence of Debt. The Issuer will not,
and will not permit any Subsidiary to, incur any Debt (as defined
below), other than inter-company debt representing Debt to which
the only parties are Xxxxxxx Properties, Inc., a Maryland
corporation (the "General Partner"), the Issuer and any of their
Subsidiaries (but only so long as such Debt is held solely by any
of the General Partner, the Issuer and any Subsidiary) that is
subordinate in right of payment to the Notes if, immediately
after giving effect to the incurrence of such additional Debt,
the aggregate principal amount of all outstanding Debt of the
Issuer and its Subsidiaries on a consolidated basis is greater
than 60% of the sum of (i) Total Assets (as defined below) as of
the end of the calendar quarter covered in the Issuer's Annual
Report on Form 10-K or Quarterly Report on Form 10-Q, as the case
may be, most recently filed with the Trustee (or such reports of
the General Partner if filed by the Issuer with the Trustee in
lieu of filing its own reports) prior
-4-
5
to the incurrence of such additional Debt and (ii) the increase
in Total Assets from the end of such quarter including, without
limitation, any increase in Total Assets resulting from the
incurrence of such additional Debt (such increase, together with
the Total Assets, is referred to as "Adjusted Total Assets").
In addition to the foregoing limitation on the incurrence
of Debt, the Issuer will not, and will not permit any Subsidiary
to, incur any Debt if the ratio of Consolidated Income Available
for Debt Service to the Annual Service Charge (in each case as
defined below) for the four consecutive fiscal quarters most
recently ended prior to the date on which such additional Debt
is to be incurred shall have been less than 1.5 to 1, on a pro
forma basis after giving effect to the incurrence of such Debt
and to the application of the proceeds therefrom, and calculated
on the assumption that (i) such Debt and any other Debt incurred
by the Issuer or its Subsidiaries since the first day of such
four-quarter period and the application of the proceeds
therefrom, including to refinance other Debt, had occurred at
the beginning of such period, (ii) the repayment or retirement
of any other Debt by the Issuer or its Subsidiaries since the
first day of such four-quarter period had been incurred, repaid
or retired at the beginning of such period (except that, in
making such computation, the amount of Debt under any revolving
credit facility shall be computed based upon the average daily
balance of such Debt during such period), (iii) the income
earned on any increase in Adjusted Total Assets since the end of
such four-quarter period had been earned, on an annualized
basis, during such period, and (iv) in the case of any
acquisition or disposition by the Issuer or any Subsidiary of
any asset or group of assets since the first day of such
four-quarter period, including, without limitation, by merger,
stock purchase or sale, or asset purchase or sale, such
acquisition or disposition or any related repayment of Debt had
occurred as of the first day of such period with the appropriate
adjustments with respect to such acquisition or disposition
being included in such pro forma calculation.
In addition to the foregoing limitations on the incurrence
of Debt, the Issuer will not, and will not permit any Subsidiary
to, incur any Debt secured by any mortgage, lien, charge,
pledge, encumbrance or security interest of any kind upon any of
the property of the Issuer or any Subsidiary ("Secured Debt"),
whether owned at the date of the Indenture or thereafter
acquired, if, immediately after giving effect to the incurrence
of such additional Secured Debt, the aggregate principal amount
of all outstanding Secured Debt is greater than 40% of Adjusted
Total Assets.
For purposes of the foregoing provisions regarding the
limitation on the incurrence of Debt, Debt shall be deemed to be
"incurred" by the Issuer or a Subsidiary whenever the Issuer and
its Subsidiary shall create, assume, guarantee or otherwise
become liable in respect thereof.
-5-
6
Maintenance of Total Unencumbered Assets. The Issuer is
required to maintain Total Unencumbered Assets of not less than
165% of the aggregate outstanding principal amount of all
outstanding Unsecured Debt.
As used herein:
"Annual Service Charge" as of any date means the amount
which is expensed in any 12-month period for interest on Debt of
the Issuer and its Subsidiaries.
"Consolidated Income Available For Debt Service" for any
period means Consolidated Net Income plus amounts which have been
deducted for (a) interest on Debt of the Issuer and its
Subsidiaries, (b) provision for taxes of the Issuer and its
Subsidiaries based on income, (c) amortization of Debt discount,
(d) provisions for gains and losses on properties, (e)
depreciation and amortization, (f) the effect of any noncash
charge resulting from a change in accounting principles in
determining Consolidated Net Income for such period and (g)
amortization of deferred charges.
"Consolidated Net Income" for any period means the amount
of consolidated net income (or loss) of the Issuer and its
Subsidiaries for such period determined on a consolidated basis
in accordance with generally accepted accounting principles.
"Debt" of the Issuer or any Subsidiary means any
indebtedness of the Issuer or such Subsidiary, as applicable,
whether or not contingent, in respect of (i) borrowed money
evidenced by bonds, notes, Notes or similar instruments, (ii)
indebtedness secured by any mortgage, pledge, lien, charge,
encumbrance or any security interest existing on property owned
by the Issuer or such Subsidiary, (iii) the reimbursement
obligations, contingent or otherwise, in connection with any
letters of credit actually issued or amounts representing the
balance that constitutes an accrued expense or trade payable or
(iv) any lease of property by the Issuer or such Subsidiary as
lessee which is reflected in the Issuer"s consolidated balance
sheet as a capitalized lease in accordance with generally
accepted accounting principles, in the case of items of
indebtedness under (i) through (iii) above to the extent that any
such items (other than letters of credit) would appear as a
liability on the Issuer's consolidated balance sheet in
accordance with generally accepted accounting principles, and
also includes, to the extent not otherwise included, any
obligation by the Issuer or such Subsidiary to be liable for, or
to pay, as obligor, guarantor or otherwise (other than for
purposes of collection in the ordinary course of business),
indebtedness of another person (other than the Issuer or any
Subsidiary).
-6-
7
"Subsidiary" means a corporation, partnership or limited
liability company, a majority of the outstanding voting stock,
partnership interests or membership interests, as the case may
be, of which is owned or controlled, directly or indirectly, by
the Issuer or by one or more other Subsidiaries of the Issuer.
For the purposes of this definition, "voting stock" means stock
having the voting power for the election of directors, general
partners, managers or trustees, as the case may be, whether at
all times or only so long as no senior class of stock has such
voting power by reason of any contingency.
"Total Assets" as of any date means the sum of (i)
Undepreciated Real Estate Assets and (ii) all other assets of the
Issuer and its Subsidiaries on a consolidated basis determined in
accordance with generally accepted accounting principles (but
excluding intangibles and accounts receivable).
"Total Unencumbered Assets" as of any date means the sum
of (i) those Undepreciated Real Estate Assets which have not been
pledged, mortgaged or otherwise encumbered by the owner thereof
to secure Debt, excluding infrastructure assessment bonds, and
(ii) all other assets of the Issuer and its Subsidiaries
determined in accordance with generally accepted accounting
principles (but excluding intangibles and accounts receivable)
which have not been pledged, mortgaged or otherwise encumbered by
the owner thereof to secure Debt.
"Undepreciated Real Estate Assets" as of any date means
the cost (original cost plus capital improvements) of real estate
assets of the Issuer and its Subsidiaries on such date, before
depreciation and amortization, determined on a consolidated basis
in accordance with generally accepted accounting principles.
"Unsecured Debt" as of any date means Debt which is not
secured by any mortgage, lien, charge, pledge, encumbrance or
security interest of any kind upon any of the properties of the
Issuer or any Subsidiary.
(C) The Trustee shall not be obligated to monitor or
confirm, on a continuing basis or otherwise, the Issuer's compliance
with the covenants contained in this subsection or with respect to
reports or other documents filed under the Indenture; provided, however,
that nothing herein shall relieve the Trustee of any obligations to
monitor the Issuer"s timely delivery of all reports and certificates
required under Sections 703 and 1005 of the Indenture and to fulfill its
obligations under Article Six of the Indenture.
(15) The Notes shall be issuable only as Registered Securities in
permanent global form (without coupons). Beneficial owners of interests
in the permanent global Notes may exchange such interests for Notes of
like tenor or any authorized form and
-7-
8
denomination only in the manner provided in Section 305 of the
Indenture. DTC shall be the depository with respect to the permanent
global Note.
(16) The Notes shall not be issuable as Bearer Securities.
(17) Interest on any Note shall be payable only to the Person in
whose name that Note (or one or more predecessor Notes thereof) is
registered at the close of business on the Regular Record Date for such
interest.
(18) Sections 1402 and 1403 of the Indenture shall be applicable
to the Notes.
(19) The Notes shall not be issuable in definitive form except
under the circumstances described in Section 305 of the Indenture.
(20) Articles Sixteen and Seventeen of the Indenture shall not be
applicable to the Notes.
(21) The Issuer shall not pay Additional Amounts with respect to
the Notes as contemplated by Section 1009 of the Indenture.
(22) The Notes shall not be subordinated to any other debt of the
Issuer, and shall constitute senior unsecured obligations of the Issuer.
SECTION 102. FORM OF NOTE. The form of the Note is attached hereto as
Exhibit A.
ARTICLE II
MISCELLANEOUS
SECTION 201. DEFINITIONS. Capitalized terms used but not defined in this
Fourteenth Supplemental Indenture shall have the meanings ascribed thereto in
the Indenture.
SECTION 202. CONFIRMATION OF INDENTURE. The Indenture, as heretofore
supplemented and amended by this Fourteenth Supplemental Indenture, is in all
respects ratified and confirmed, and the Indenture, this Fourteenth Supplemental
Indenture and all indentures supplemental thereto shall be read, taken and
construed as one and the same instrument.
SECTION 203. CONCERNING THE TRUSTEE. The Trustee assumes no duties,
responsibilities or liabilities by reason of this Fourteenth Supplemental
Indenture other than as set forth in the Indenture and, in carrying out its
responsibilities hereunder, shall have all of the rights, protections and
immunities which it possesses under the Indenture.
-8-
9
SECTION 204. GOVERNING LAW. This Fourteenth Supplemental Indenture, the
Indenture and the Securities shall be governed by and construed in accordance
with the law of the State of New York.
SECTION 205. SEPARABILITY. In case any provision in this Fourteenth
Supplemental Indenture shall for any reason be held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 206. COUNTERPARTS. This Fourteenth Supplemental Indenture may be
executed in any number of counterparts each of which shall be an original, but
such counterparts shall together constitute but one and the same instrument.
-9-
10
IN WITNESS WHEREOF, the parties hereto have caused this Fourteenth
Supplemental Indenture to be duly executed, and the corporate seal of the
General Partner to be hereunto affixed and attested, as of the day and year
first above written.
XXXXXXX PROPERTIES, L.P.
By: Xxxxxxx Properties, Inc., as General Partner
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
and Chief Financial Officer
(seal)
Attest:
By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Assistant Secretary
XXXXXXX PROPERTIES, INC.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
and Chief Financial Officer
(seal)
Attest:
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Assistant Secretary
-10-
11
U.S. BANK TRUST,
NATIONAL ASSOCIATION, as Trustee
By: /s/ Xxxxxxxx Xxxxxx
-------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
Attest:
By: /s/ Xxxxxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Assistant Vice President
-11-
12
STATE OF California )
COUNTY OF San Mateo ) ss.:
On April 29, 1998, before me personally came Xxxxx X. Xxxxxx to me
known, who, being by me duly sworn, did depose and say that he is the EVP and
CFO of Xxxxxxx Properties, Inc., one of the entities described in and which
executed the above instrument; that he knows the corporate seal of said
corporation; that the seal affixed to the said instrument is such corporate
seal; that it was so affixed by authority of the corporation, and that he signed
his name thereto by like authority.
/s/ Xxxxxxx Xxxxxxxxx
--------------------------
[Seal]
-12-
13
EXHIBIT A
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TO A
NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR
ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OR TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
REGISTERED PRINCIPAL AMOUNT
NO.: R-1 $
CUSIP NO.: 848503
XXXXXXX PROPERTIES, L.P.
6.88% NOTE DUE APRIL 30, 2007
XXXXXXX PROPERTIES, L.P., a California limited partnership (the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or
registered assignee (the "Holder"), upon presentation, the principal sum of $
on April 30, 2007, and to pay interest on the outstanding principal amount
thereon from April 29, 1998, or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semi-annually in arrears on
April 30 and October 30 in each year (each an "Interest Payment Date"),
commencing October 30, 1998, and at the Stated Maturity, at the rate of 6.88%
per annum, computed on the basis of a 360-day year comprised of twelve 30-day
months, until the entire principal amount hereof is paid or duly provided for.
The interest so payable, and punctually paid or duly provided for on any
Interest Payment Date will, as provided in the Indenture (hereinafter defined),
be paid to the person in whose name this Note (the "Note") (or one or more
predecessor Notes) is registered at the close of business on the Regular Record
Date for such Interest Payment Date which shall be the 15th calendar day
preceding the applicable Interest Payment Date. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to the
Holder on such Regular Record Date, and may either be paid to the Person in
whose name this Note (or one or more predecessor Notes) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of
Notes not more than 15 days and not less than 10 days prior to such Special
Record
-1-
14
Date, or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Notes may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in the Indenture. Payments of the principal of, and interest on,
this Note will be made at the office or agency of the Trustee (hereinafter
defined) maintained for that purpose at 000 X. Xxxxx Xxxxxx, Xx. Xxxx, Xxxxxxxxx
00000, or elsewhere as provided in the Indenture, in United States Dollars;
provided, however, that at the option of the Holder hereof, and upon written
notice to the Trustee of not less than five Business Days prior to the
applicable Interest Payment Date, payment of interest may be made by (i) check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register kept for the Notes pursuant to Section 305 of
the Indenture (the "Note Register") or (ii) transfer to an account of the Person
entitled thereto located inside the United States.
This Note is one of a fully authorized issue of securities of the Issuer
issued as a series of securities issued and to be issued under an Indenture,
dated as of December 6, 1995 as supplemented by the Fourteenth Supplemental
Indenture dated April 29, 1998 (collectively, the "Indenture"), among the Issuer
and U.S. Bank Trust National Association (the "Trustee," which term includes any
successor trustee under the Indenture with respect to the Notes), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Issuer, the Trustee and the Holders of the Notes, and of the
terms upon which the Notes are, and are to be, authenticated and delivered. This
Note is one of the series designated as the "6.88% Notes Due April 30, 2007,"
limited in the aggregate principal amount to $25,000,000.
The Notes may be redeemed at any time at the option of the Issuer, in
whole or from time to time in part, at a redemption price (the "Redemption
Price") equal to the sum of (i) the principal amount of the Notes (or portion
thereof) being redeemed plus accrued interest thereon to the redemption date and
(ii) the Make-Whole Amount (as defined below), if any, with respect to such
Notes (or portion thereof).
If notice has been given as provided in the Indenture and funds for the
redemption of any Notes (or any portion thereof) called for redemption shall
have been made available on the redemption date referred to in such notice, such
Notes (or any portion thereof) will cease to bear interest on the date fixed for
such redemption specified in such notice and the only right of the Holders of
the Notes will be to receive payment of the Redemption Price, with respect to
such Notes or portion thereof so redeemed.
Notice of any optional redemption of any Notes (or any portion thereof)
will be given to Holders at their addresses, as shown in the Note Register, not
more than 60 nor less than 30 days prior to the date fixed for redemption. The
notice of redemption will specify, among other items, the Redemption Price and
the principal amount of the Notes held by such Holder to be redeemed.
The Issuer will notify the Trustee at least 45 days prior to giving
notice of redemption (or such shorter period as is satisfactory to the Trustee)
of the aggregate principal amount of Notes to
-2-
15
be redeemed and their redemption date. If less than all the Notes are to be
redeemed at the option of the Issuer, the Trustee shall select, in such manner
as it shall deem fair and appropriate, the Notes to be redeemed in whole or in
part.
In the event of redemption of the Notes in part only, a new Note for the
amount of the unredeemed portion hereof shall be issued in the name of the
Holder hereto, upon cancellation hereof.
As used herein:
"Make-Whole Amount" means, in connection with any optional
redemption or accelerated payment of any Notes, the excess, if any, of
(i) the aggregate present value as of the date of such redemption or
accelerated payment of each dollar of principal being redeemed or paid
and the amount of interest (exclusive of interest accrued to the date of
redemption or accelerated payment) that would have been payable in
respect of each such dollar if such redemption or accelerated payment
had not been made, determined by discounting, on a semi-annual basis,
such principal and interest at the Reinvestment Rate (determined on the
third Business Day preceding the date such notice of redemption is given
or declaration of acceleration is made) from the respective dates on
which such principal and interest would have been payable if such
redemption or accelerated payment had not been made, over (ii) the
aggregate principal amount of the Notes being redeemed or paid.
"Reinvestment Rate" means 0.25% plus the arithmetic mean of the
yields under the respective heading "Week Ending" published in the most
recent Statistical Release under the caption "Treasury Constant
Maturities" for the maturity (rounded to the nearest month)
corresponding to the remaining life to maturity, as of the payment date
of the principal being redeemed or paid. If no maturity exactly
corresponds to such maturity, yields for the two published maturities
most closely corresponding to such maturity shall be calculated pursuant
to the immediately preceding sentence and the Reinvestment Rate shall be
interpolated or extrapolated from such yields on a straight-line basis,
rounding in each of such relevant periods to the nearest month. For the
purpose of calculating the Reinvestment Rate, the most recent
Statistical Release published prior to the date of determination of the
Make-Whole Amount shall be used.
"Statistical Release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by
the Federal Reserve System and which establishes yields on actively
traded United States government securities adjusted to constant
maturities, or, if such statistical release is not published at the time
of any determination under the Indenture, then such other reasonably
comparable index which shall be designated by the Issuer.
-3-
16
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness of the Issuer on this Note and (b) certain restrictive
covenants and the related defaults and Events of Default applicable to the
Issuer, in each case, upon compliance by the Issuer with certain conditions set
forth in the Indenture, which provisions apply to this Note.
The Issuer is subject to certain covenants contained in the Indenture
with respect to, and for the benefit of the Holders of, the Notes. The Trustee
shall not be obligated to monitor or confirm, on a continuing basis or
otherwise, the Issuer's compliance with the covenants contained in the Indenture
or with respect to reports or other certificates filed under the Indenture;
provided, however, that nothing herein shall relieve the Trustee of any
obligations to monitor the Issuer's timely delivery of all reports and
certificates required under Sections 703 and 1005 of the Indenture and to
fulfill its obligations under Article Six of the Indenture. If an Event of
Default as defined in the Indenture with respect to the Notes shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Note shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Notes, the Holders of not less than a majority in principal amount of the Notes
at the time Outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and offered
the Trustee reasonable indemnity and shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer of
indemnity and the Trustee shall not have received from the Holders of a majority
in principal amount of the Notes at the time Outstanding a direction
inconsistent with such request. The foregoing shall not apply to any suit
instituted by the Holder of this Note for the enforcement of any payment of
principal hereof or any interest on or after the respective due dates expressed
herein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer and the Trustee with the consent of the Holders of not less
than a majority in principal amount of the Outstanding Notes. The Indenture also
contains provisions permitting the Holders of not less than a majority in
principal amount of the Notes at the time Outstanding, on behalf of the Holders
of all Notes, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange herefor or
in lieu hereof, whether or not notation of such consent or waiver is made upon
this Note.
-4-
17
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of, and interest on, this Note
at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable in the Note Register, upon
surrender of this Note for registration of transfer at the office or agency of
the Issuer in any Place of Payment where the principal of, and interest on, this
Note are payable, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Issuer and the Security Registrar for the
Notes duly executed by, the Holder hereof or his attorney duly authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Notes of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
the Notes are exchangeable for a like aggregate principal amount of Notes of
this series of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Issuer, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE NOTES INCLUDING THIS NOTE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Issuer has caused "CUSIP" numbers to be
printed on the Notes as a convenience to the Holders of the Notes. No
representation is made as to the correctness or accuracy of such CUSIP numbers
as printed on the Notes, and reliance may be placed only on the other
identification numbers printed hereon.
-5-
18
Unless the certificate of authentication hereon has been executed by or
on behalf of the Trustee by manual signature, this Note shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any purposes.
-6-
19
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its corporate seal this __ day of ______, 1998.
XXXXXXX PROPERTIES, L.P.
By: Xxxxxxx Properties, Inc., as
General Partner
By:
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
and Chief Financial Officer
[SEAL]
Attest:
By:
---------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President - Finance
and Assistant Secretary
-7-
20
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated "6.88% Notes Due April
30, 2007" referred to in the within-mentioned Indenture.
U.S. BANK TRUST,
NATIONAL ASSOCIATION,
as Trustee
By:
----------------------------
Name:
Title:
-8-
21
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers to
--------------------------------------------------------------------------------
(Insert Social Security number or other identifying number of assignee)
--------------------------------------------------------------------------------
(Please print or typewrite name and address, including zip, code of assignee)
--------------------------------------------------------------------------------
the within Note of Xxxxxxx Properties, L.P. and hereby does irrevocably
constitute and appoint
--------------------------------------------------------------------------------
Attorney to transfer said Note on the books of the within-named Issuer with full
power of substitution in the premises.
Dated:
------------------- ---------------------------------------
---------------------------------------
Signature(s) must be guaranteed by an eligible Guarantor Institution (banks,
stock brokers, savings and loan associations and credit unions) with membership
in an approved signature guarantee medallion program pursuant to Securities and
Exchange Commission Rule 17Ad-15.
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Note in every particular, without
alteration or enlargement or any change whatever.
-9-
