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EXHIBIT 4.9
EIGHTH SUPPLEMENTAL INDENTURE
EIGHTH SUPPLEMENTAL INDENTURE, dated as of July 14, 1997 (this "Eighth
Supplemental Indenture"), among Xxxxxxx Properties, Inc., a corporation
organized under the laws of Maryland (the "General Partner"), Xxxxxxx
Properties, L.P., a limited partnership organized under the laws of California
(the "Issuer"), and State Street Bank and Trust Company, as Trustee (the
"Trustee").
W I T N E S S E T H:
WHEREAS, the Issuer, the General Partner and the Trustee executed and
delivered an Indenture, dated as of December 6, 1995 (as supplemented hereby,
the "Indenture"), to provide for the issuance by the Issuer from time to time of
debt securities evidencing its unsecured indebtedness;
WHEREAS, pursuant to Board Resolution, the Issuer has authorized the
issuance of $150,000,000 of its 7.125% Notes Due July 1, 2009 (the "2009
Notes");
WHEREAS, the Issuer desires to establish the terms of the 2009 Notes in
accordance with Section 301 of the Indenture and to establish the form of the
2009 Notes in accordance with Section 201 of the Indenture.
ARTICLE 1
TERMS
SECTION 101. TERMS OF 2009 NOTES. The following terms relating to
the 2009 Notes are hereby established:
(1) The 2009 Notes shall constitute a series of Securities having
the title "7.125% Notes Due July 1, 2009."
(2) The aggregate principal amount of the 2009 Notes that may be
authenticated and delivered under the Indenture (except for 2009 Notes
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other 2009 Notes pursuant to Sections 304,
305, 306, 906, 1107 or 1305 of the Indenture) shall be up to
$150,000,000.
(3) The entire outstanding principal of the 2009 Notes shall be
payable on July 1, 2009 (the "Stated Maturity Date").
(4) The rate at which the 2009 Notes shall bear interest shall be
7.125%; the date from which interest shall accrue shall be July 1, 1997;
the Interest Payment Dates for the 2009 Notes on which interest will be
payable shall
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be July 1 and January 1 in each year, beginning January 1, 1998; the
Regular Record Dates for the interest payable on the 2009 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 where the principal of and interest on the 2009
Notes shall be payable and 2009 Notes may be surrendered for the
registration of transfer or exchange shall be the Corporate Trust Office
of the Trustee which, as of this writing, is located at Xxx
Xxxxxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000. The place where
notices or demands to or upon the Issuer in respect of the 2009 Notes
and the Indenture may be served shall be the Corporate Trust Office of
the Trustee.
(6) (A) The 2009 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 2009 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 2009 Notes (or portion thereof) (the
"Redemption Price").
If notice has been given as provided in the Indenture and
funds for the redemption of any 2009 Notes (or any portion thereof)
called for redemption shall have been made available on the redemption
date referred to in such notice, such 2009 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 2009 Notes will be to receive payment of the Redemption Price, with
respect to such 2009 Notes or portion thereof so redeemed.
Notice of any optional redemption of any 2009 Notes (or
any portion thereof) will be given to Holders at their addresses, as
shown in the security register for the 2009 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 2009 Notes held by such Holder to be redeemed.
On the third Business Day preceding the date notice of redemption is
given, the Company will notify the Trustee of the Redemption Price and
the Trustee may rely and shall be fully protected in acting upon the
determination of the Company as to such Price.
The Issuer will notify the Trustee at least 45 days prior
to giving notice of redemption (or such shorter period as is
satisfactory to the Trustee) of the aggregate principal amount of 2009
Notes to be redeemed and their redemption date. If less than all the
2009 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
2009 Notes to be redeemed in whole or in part.
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In the event of redemption of the 2009 Notes in part only,
a new 2009 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 2009 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 2009 Notes being redeemed or paid.
"Reinvestment Rate" means 0.20% 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.
(7) The 2009 Notes shall not be redeemable at the option of any
Holder thereof, upon the occurrence of any particular circumstances or
otherwise. The 2009 Notes will not have the benefit of any sinking fund.
(8) The 2009 Notes shall be issuable in denominations of $1,000
and any integral multiple thereof.
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(9) The Trustee shall also be the Security Registrar and Paying
Agent.
(10) The entire outstanding principal amount plus the Make-Whole
Amount of the 2009 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 2009 Notes
shall be made in U.S. Dollars, and the 2009 Notes shall be denominated
in U.S. Dollars.
(12) The 2009 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 2009 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 2009 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 2009 Notes,
which shall be effective only for so long as any of the 2009 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 2009 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 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
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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.
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:
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"Annual Service Charge" as of any date means the amount
which is expensed in any 12-month period for interest on Debt of
the Issuer and its Subsidiaries.
"Consolidated Income Available For Debt Service" for any
period means Consolidated Net Income plus amounts which have been
deducted for (a) interest on Debt of the Issuer and its
Subsidiaries, (b) provision for taxes of the Issuer and its
Subsidiaries based on income, (c) amortization of Debt discount,
(d) provisions for gains and losses on properties, (e)
depreciation and amortization, (f) the effect of any noncash
charge resulting from a change in accounting principles in
determining Consolidated Net Income for such period and (g)
amortization of deferred charges.
"Consolidated Net Income" for any period means the amount
of consolidated net income (or loss) of the Issuer and its
Subsidiaries for such period determined on a consolidated basis
in accordance with generally accepted accounting principles.
"Debt" of the Issuer or any Subsidiary means any
indebtedness of the Issuer or such Subsidiary, as applicable,
whether or not contingent, in respect of (i) borrowed money
evidenced by bonds, notes, debentures or similar instruments,
(ii) indebtedness secured by any mortgage, pledge, lien, charge,
encumbrance or any security interest existing on property owned
by the Issuer or such Subsidiary, (iii) the reimbursement
obligations, contingent or otherwise, in connection with any
letters of credit actually issued or amounts representing the
balance that constitutes an accrued expense or trade payable or
(iv) any lease of property by the Issuer or such Subsidiary as
lessee which is reflected in the Issuer's consolidated balance
sheet as a capitalized lease in accordance with generally
accepted accounting principles, in the case of items of
indebtedness under (i) through (iii) above to the extent that any
such items (other than letters of credit) would appear as a
liability on the Issuer's consolidated balance sheet in
accordance with generally accepted accounting principles, and
also includes, to the extent not otherwise included, any
obligation by the Issuer or such Subsidiary to be liable for, or
to pay, as obligor, guarantor or otherwise (other than for
purposes of collection in the ordinary course of business),
indebtedness of another person (other than the Issuer or any
Subsidiary).
"Subsidiary" means a corporation, partnership or limited
liability company, a majority of the outstanding voting stock,
partnership interests or membership interests, as the case may
be, of which is owned or controlled, directly or indirectly, by
the Issuer or by one or more other Subsidiaries of the Issuer.
For the purposes of this definition, "voting stock" means stock
having the voting power for the election of directors, general
partners, managers or trustees,
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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 2009 Notes shall be issuable only as Registered
Securities in permanent global form (without coupons). Beneficial owners
of interests in the permanent global 2009 Notes may exchange such
interests for 2009 Notes of like tenor or any authorized form and
denomination only in the manner provided in Section 305 of the
Indenture. DTC shall be the depository with respect to the permanent
global 2009 Note.
(16) The 2009 Notes shall not be issuable as Bearer Securities.
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(17) Interest on any 2009 Note shall be payable only to the
Person in whose name that 2009 Note (or one or more predecessor 2009
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 2009 Notes.
(19) The 2009 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 2009 Notes.
(21) The Issuer shall not pay Additional Amounts with respect to
the 2009 Notes as contemplated by Section 1009 of the Indenture.
(22) The 2009 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 2009 NOTE. The form of the 2009 Note is attached
hereto as Exhibit A.
ARTICLE II
MISCELLANEOUS
SECTION 201. DEFINITIONS. Capitalized terms used but not defined in
this Eighth 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 Eighth Supplemental Indenture, is in all
respects ratified and confirmed, and the Indenture, this Eighth 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 Eighth Supplemental Indenture
other than as set forth in the Indenture and, in carrying out its
responsibilities hereunder, shall have all of the rights, protections and
immunities which it possesses under the Indenture.
SECTION 204. GOVERNING LAW. This Eighth 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 Eighth
Supplemental Indenture shall for any reason be held to be invalid, illegal or
unenforceable, the
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validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 206. COUNTERPARTS. This Eighth Supplemental Indenture may be
executed in any number of counterparts each of which shall be an original, but
such counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Eighth
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/ Xxxx X. Xxxxxxxx
--------------------------
Name: Xxxx X. Xxxxxxxx
Title: 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/ Xxxx X. Xxxxxxxx
--------------------------
Name: Xxxx X. Xxxxxxxx
Title: Secretary
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Assistant Vice President
Attest:
By: /s/ Carolina X. Xxxxxxxx
--------------------------
Name: Carolina X. Xxxxxxxx
Title: Assistant Secretary
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STATE OF California )
COUNTY OF San Mateo ) ss.:
On the 15th day of July, 1997, 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.
Xxxxx X. Xxxxxxx
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[Seal]
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