Exhibit 4.4
XXXXXXX OPERATING LIMITED PARTNERSHIP
ISSUER
to
LaSALLE NATIONAL BANK
TRUSTEE
----------------------------
Supplemental Indenture No. 2
Dated as of January 28, 1998
----------------------------
$100,000,000
7.2% Notes due 2008
SUPPLEMENTAL INDENTURE NO. 2, dated as of January 28, 1998 (the
"Supplemental Indenture"), between XXXXXXX OPERATING LIMITED PARTNERSHIP, a
limited partnership organized and existing under the laws of the State of
Delaware (herein called the "Partnership"), and LaSALLE NATIONAL BANK, a
national banking corporation duly organized and existing 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 November 24, 1997 (the "Senior Indenture"), a form of which has been
filed with the Securities and Exchange Commission under the Securities Act of
1933, as amended, as Exhibit 4.1 to the Partnership's Registration Statement on
Form S-3 (Registration No. 333-36577), providing for the issuance from time to
time of Senior Debt Securities of the Partnership (the "Securities").
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 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 INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase 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 Securities or of any series thereof, as follows:
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,
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Indebtedness of the Partnership and its Subsidiaries and the amount of dividends
which are payable during such period in respect of any Disqualified Stock.
"Business Day" means any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which banking institutions in the City of
New York or in the City of Chicago are authorized or required by law, regulation
or executive order to close.
"Capital Stock" means, (i) with respect to any corporation, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such corporation's capital stock, whether now
outstanding or issued hereafter, including, without limitation, all common stock
and any series of preferred stock, and (ii) with respect to any other Person,
any partnership interest, joint venture interest, limited liability company
member interest or other form of equity sharing or participation interest, as
applicable, and (iii) warrants, options, participations or other equivalents of
or interests (however designated) in any of the items described in clauses (i)
or (ii) above.
"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.
"Corporate Trust Office" means the office of the Trustee at which, at
any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 and, for purposes of the Place of Payment
provisions of Sections 305 and 1002 of the Senior Indenture, is located at 000
Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000.
"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 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), (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.
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"Earnings from Operations" for any period means net earnings excluding
gains and losses on sales of investments, extraordinary items, and net property
valuation losses, 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" has the meaning specified in the definition of
"Indebtedness" set forth in this Section 1.2.
"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, (ii) indebtedness for borrowed money of a Person other than
the Partnership or a Subsidiary which is secured by any mortgage, lien, charge,
pledge, or security interest of any kind existing on property owned by the
Partnership or any Subsidiary (each securing such debt, an "Encumbrance") 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 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 obligation 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).
"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
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have been payable if such redemption or accelerated payment had not been made to
the date of redemption or accelerated payment, over (ii) the aggregate principal
amount of the Notes being redeemed or paid. For purposes of the Indenture, all
references to any "premium" on the Notes shall be deemed to refer to any
Make-Whole Amount, unless the context otherwise requires.
"Notes" has the meaning specified in Section 2.1 hereof.
"Redemption Price" has the meaning specified in Section 2.5 hereof.
"Reinvestment Rate" means 0.25% (twenty-five one hundredths of one
percent) plus the arithmetic mean of the yields under the headings "This Week"
and "Last Week" published in the 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 purposes 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 Board
of Governors of the Federal Reserve System and which reports 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 of
the Make-Whole Amount, then such other reasonably comparable index which shall
be designated by the Partnership.
"Subsidiary" means, with respect to any Person, (a) 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).
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"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.
ARTICLE TWO
THE SERIES OF NOTES
SECTION 2.1. TITLE OF THE SECURITIES. There shall be a series of
Securities designated the "7.2% Senior Notes due 2008" (the "Notes").
SECTION 2.2. LIMITATIONS ON AGGREGATE PRINCIPAL AMOUNT. The aggregate
principal amount of the Notes shall be limited to $100,000,000, and, except as
provided in this Section and in Section 306 of the Senior Indenture, the
Partnership shall not execute and the Trustee shall not authenticate or deliver
Notes in excess of such aggregate principal amount.
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 the Notes under the
circumstances contemplated in Sections 303, 304, 306, 906, 1107 and 1305 of the
Senior Indenture.
SECTION 2.3. INTEREST AND INTEREST RATES; MATURITY DATE OF NOTES. The
Notes will bear interest at a rate of 7.2% per annum, from January 15, 1998 or
from the immediately preceding Interest Payment Date to which interest has been
paid or duly provided for, payable semi-annually in arrears on January 15 and
July 15 of each year, commencing July 15, 1998 (each, an "Interest Payment
Date"), to the Person in whose name such Note is registered at the close of
business on January 1 or July 1 (whether or not a Business Day), as the case may
be, next preceding such Interest Payment Date (each, a "Regular Record Date").
Interest will be computed on the basis of a 360-day year comprised of twelve
30-day months. The interest so payable on any Note which is not punctually paid
or duly provided for on any Interest Payment Date shall forthwith cease to be
payable to the Person in whose name such Note as registered on the relevant
Regular Record Date, and such defaulted interest shall instead be payable to the
Person in whose name such Note is registered on the Special Record Date or other
specified date determined in accordance with the Senior Indenture.
If any Interest Payment Date or Maturity falls on a day that is not a
Business Day, the required payment shall be made on the next Business Day as if
it were made on the date such
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payment was due and no interest shall accrue on the amount so payable for the
period from and after such Interest Payment Date or Maturity, as the case may
be.
The Notes will mature on January 15, 2008.
SECTION 2.4. LIMITATIONS ON INCURRENCE OF DEBT.
(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 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 since the end of the
most recent calendar quarter, and (iii) 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, less (iv) the decrease, if any, in the Total Assets of the
Partnership and its Subsidiaries since the end of such quarter.
(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
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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 since the end
of the most recent calendar quarter, and (iii) 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
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, less (iv) the decrease, if any, in
the Total Assets of the Partnership and its Subsidiaries since the end of such
quarter.
(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.
(f) The covenants set forth in subsections (a), (b) and (c) of
this Section 2.4 shall not restrict the Partnership from refinancing existing
Indebtedness, provided that the outstanding principal amount of such
Indebtedness is not increased.
SECTION 2.5. REDEMPTION.
(a) The Notes shall be redeemable before their Stated Maturity
in accordance with this Section 2.5 and otherwise in accordance with the
provisions of Article Eleven of the Senior Indenture. In the event of any
conflict between this Section 2.5 (including the definitions of terms used
herein) and Article Eleven of the Senior Indenture (including the definitions of
terms used therein), this Section 2.5 shall control.
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(b) The Notes may be redeemed at any time at the option and in
the sole discretion of the Partnership 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
being redeemed plus accrued interest thereon to the Redemption Date, and (ii)
the Make-Whole Amount, if any, with respect to such Notes (the "Redemption
Price").
SECTION 2.6. PLACES OF PAYMENT. The Places of Payment where the Notes
may be presented or surrendered for payment, where the Notes may be surrendered
for registration of transfer or exchange and where notices and demands to and
upon the Partnership in respect of the Notes and the Senior Indenture may be
served shall be in (i) The City of Chicago, Illinois and the office or agency
for such purpose shall initially be 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000.
SECTION 2.7. METHOD OF PAYMENT. Payment of the principal of and interest
on the Notes will be made at the office or agency of the Partnership maintained
for that purpose in The City of Chicago, Illinois (which shall initially be an
office or agency of the Trustee), in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public and
private debts; PROVIDED, HOWEVER, that at the option of the Partnership,
payments of principal and interest on the Notes (other than payments of
principal and interest due at Maturity) may be made (i) by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register or (ii) by wire transfer to an account maintained by the
Person entitled thereto located inside the United States.
SECTION 2.8. CURRENCY. Principal and interest on the Notes shall be
payable in Dollars.
SECTION 2.9. REGISTERED SECURITIES: GLOBAL FORM. The Notes shall be
issuable and transferable in fully registered form as Registered Securities,
without coupons. The Notes shall each be issued in the form of one or more
permanent Global Securities. The depositary for the Notes shall be DTC. The
Notes shall not be issuable in definitive form except as provided in Section 305
of the Senior Indenture.
SECTION 2.10. FORM OF NOTES. The Notes shall be substantially in the
form attached as EXHIBIT A hereto.
SECTION 2.11. REGISTRAR AND PAYING AGENT. The Trustee shall initially
serve as Registrar and Paying Agent for the Notes.
SECTION 2.12. DEFEASANCE. The provisions of Section 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 Section
2.4 of this Supplemental Indenture and to those covenants specified in Section
1403 of the Senior Indenture.
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SECTION 2.13. 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 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 2.14. 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, and the Make-Whole
Amount, if any, on, 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), and upon any such declaration such principal or specified
portion thereof shall become immediately due and
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payable. If an Event of Default with respect to the Securities of any series set
forth in Sections 501(6) or 501(7) of this 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 plus the Make-Whole Amount, if any, on the Securities of that series.
SECTION 2.15. 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.
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 of Notes, as their
names and addresses appear in the Security Register, without cost to such
Holders, copies of the annual reports and quarterly reports that 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 that 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 2.16. WAIVER OF CERTAIN COVENANTS. Notwithstanding the
provisions of Section 1009 of the Senior Indenture, the Partnership may omit to
comply with any term, provision or condition set forth in Sections 1004 to 1008,
inclusive, of the Senior Indenture, with Sections 2.4 and 2.15 of this
Supplemental Indenture and with any other term, provision or condition with
respect to the Notes (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 the 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.
XXXXXXX OPERATING LIMITED
PARTNERSHIP
By: XXXXXXX REAL ESTATE, INC.,
its general partner
By: /s/ Xxxxxx X. D'Arcy
--------------------------------------------
Name: Xxxxxx X. D'Arcy
Title: President and Chief Executive Officer
Attest: /s/ Xxxxxx X. Xxxxx, Xx.
-------------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Chief Financial Officer
LaSALLE NATIONAL BANK, as Trustee
By: /s/ Xxxxx X. Xxxx
--------------------------------------------
Name: Xxxxx X. Xxxx
Title: First Vice President
Attest: /s/ Xxxxxxxx X. Xxxx
-------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Assistant Secretary
Exhibit A to
Supplemental Indenture No. 2
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY ("DTC"), 00 XXXXX XXXXXX, XXX XXXX, XXX XXXX TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND SUCH
SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME AS
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, SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL THIS SECURITY IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN CERTIFICATED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS
A WHOLE BY DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR ANOTHER
NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE
OF SUCH SUCCESSOR.
XXXXXXX OPERATING LIMITED PARTNERSHIP
7.2% Note Due 2008
Registered Xx. 000 XXXXXXXXX XXXXXX
XXXXX XX. 000000 AD 2 --$100,000,000--
XXXXXXX OPERATING LIMITED PARTNERSHIP, a Delaware limited partnership
(herein referred to as the "Partnership" which term includes any successor
entity under the Indenture referred to), for value received, hereby promises to
pay to CEDE & CO., or registered assigns, upon presentation, the principal sum
of ONE HUNDRED MILLION AND NO/100 DOLLARS on January 15, 2008 (the "Stated
Maturity Date") and to pay interest thereon from January 15, 1998 or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on January 15 and July 15 in each year (each, an
"Interest Payment Date"), commencing July 15, 1998, at the rate of 7.2% per
annum, until the principal 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 such Indenture, be paid to the Holder in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, which shall be the
January 1 or July 1 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date at the office or agency of the Partnership
maintained for such purpose; PROVIDED, HOWEVER, that such interest may be paid,
at the Partnership's option, by mailing a check to such Holder at its registered
address or by transfer of funds to an account maintained by such Holder within
the United States. Any such interest
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not so punctually paid or duly provided for shall forthwith cease to be payable
to the Holder on such Regular Record Date, and may be paid to the Holder in
whose name this Security (or one or more Predecessor Securities) 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 Securities of this series not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in the Indenture. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
The principal of this Security payable on the Stated Maturity Date or
the principal of, premium or Make-Whole Amount, if any, and, if the Redemption
Date is not an Interest Payment Date, interest on this Security payable on the
Redemption Date will be paid against presentation of this Security at the office
or agency of the Partnership maintained for that purpose in Northbrook, Illinois
in such coin or currency of the United States of America as at the time of
payment is legal tender for the payment of public and private debts.
Interest payable on this Security on any Interest Payment Date and on
the Stated Maturity Date or Redemption Date, as the case may be, will include
interest accrued from and including the next preceding Interest Payment Date in
respect of which interest has been paid or duly provided for (or from and
including January 15, 1998, if no interest has been paid on this Security) to
but excluding such Interest Payment Date or the Stated Maturity Date or
Redemption Date, as the case may be. If any Interest Payment Date or the Stated
Maturity Date or Redemption Date falls on a day that is not a Business Day, as
defined below, principal, premium or Make-Whole Amount, if any, and/or interest
payable with respect to such Interest Payment Date or Stated Maturity Date or
Redemption Date, as the case may be, will be paid on the next succeeding
Business Day with the same force and effect as if it were paid on the date such
payment was due, and no interest shall accrue on the amount so payable for the
period from and after such Interest Payment Date or Stated Maturity Date or
Redemption Date, as the case may be. "Business Day" means any day, other than a
Saturday or Sunday, on which banks in the City of New York, New York are not
required or authorized by law or executive order to close.
All payments of principal, premium or Make-Whole Amount, if any, and
interest in respect of this Security will be made by the Partnership in
immediately available funds.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the Certificate of Authentication hereon has been executed by the
Trustee by manual signature of one of its authorized signatories, this Security
shall not be entitled to any benefit under the Indenture, or be valid or
obligatory for any purpose.
A-2
IN WITNESS WHEREOF, the Partnership has caused this instrument to be
duly executed under its facsimile corporate seal.
Dated: January , 1998
XXXXXXX OPERATING LIMITED
PARTNERSHIP
By: XXXXXXX REAL ESTATE, INC.,
as general partner
By:
---------------------------------------
Name:
Title:
Attest:
--------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Dated: January , 1998
LaSALLE NATIONAL BANK
By:
---------------------------------------
Name:
Title:
Attest:
--------------------------
Name:
Title:
A-3
[Reverse of Security]
XXXXXXX OPERATING LIMITED PARTNERSHIP
This Security is one of a duly authorized issue of securities of the
Partnership (herein called the "Securities"), issued and to be issued in one or
more series under an Indenture, dated as of November 24, 1997, as supplemented
by Supplemental Indenture No. 2, dated as of January 28, 1998 (as so
supplemented, herein called the "Indenture") between the Partnership and LaSalle
National Bank, as Trustee (herein called the "Trustee," which term includes any
successor trustee under the Indenture with respect to the series of which this
Security is a part), 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 Security is one of the duly
authorized series of Securities designated on the face hereof (collectively, the
"Securities"), and the aggregate principal amount of the Securities to be issued
under such series is limited to $100,000,000 (except for Securities
authenticated and delivered upon transfer of, or in exchange for, or in lieu of
other Securities). All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.
The Securities are subject to redemption at any time at the option and
in the sole discretion of the Partnership 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
being redeemed plus accrued interest thereon to the Redemption Date and (ii) the
Make-Whole Amount, if any, with respect to such Notes; PROVIDED, HOWEVER, that
installments of interest on this Security whose Stated Maturity is on or prior
to such Redemption Date will be payable to the Holder of this Security, or one
or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.
Notice of redemption will be given by mail to Holders of Securities, not
less than 30 nor more than 60 days prior to the Redemption Date, all as provided
in the Indenture.
In the event of redemption of this Security in part only, a new Security
or Securities for the unredeemed portion hereof shall be issued in the name of
the Holder hereof upon the cancellation hereof.
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 under the Indenture
at any time by the Partnership and the Trustee
A-4
with the consent of the Holders of not less than a majority of the aggregate
principal amount of all Securities issued under the Indenture 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, 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, in certain
instances, of the Outstanding Securities of any series 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 Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and other Securities 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 Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Partnership,
which is absolute and unconditional, to pay the principal of (and premium or
Make-Whole Amount, if any) and interest on this Security at the times, places
and rate, 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 Security is registrable in the
Security Register of the Partnership upon surrender of this Security for
registration of transfer at the office or agency of the Partnership in any place
where the principal of (and premium or Make-Whole Amount, if any) and interest
on this Security 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 Securities, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, this Security is exchangeable for a like aggregate
principal amount of Securities of different authorized denominations but
otherwise having the same terms and conditions, as requested by the Holder
hereof surrendering the same.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof.
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 Security for registration of transfer,
the Partnership, the Trustee and any agent of the Partnership or the Trustee may
treat the Person in whose
A-5
name this Security is registered as the owner hereof for all purposes, whether
or not this Security be overdue, and neither the Partnership, the Trustee nor
any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of or premium
or Make-Whole Amount, if any, or the interest on this Security, or for any claim
based hereon, or otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemental thereto, against any past, present or
future stockholder, employee, officer or director, as such, of the Partnership
or of any successor, either directly or through the Partnership or any
successor, whether by virtue of any constitution, statute or rule of law or by
the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
The Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed entirely in such State.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Partnership has caused "CUSIP" numbers
to be printed on the Securities of this series as a convenience to the Holders
of such Securities. No representation is made as to the correctness or accuracy
of such CUSIP numbers as printed on the Securities, and reliance may be placed
only on the other identification numbers printed hereon.
A-6
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
-------------------------------------------------------------------------------
(Please Print or Type Name and Address Including Zip Code of Assignee)
the within Security of Xxxxxxx Operating Limited Partnership and hereby does
irrevocably constitute and appoint _______________________ Attorney to transfer
said security on the books of the within-named Partnership with full power of
substitution in the premises.
-----------------------------------------------------------------------.
(Please Insert Social Security or Other Identifying Number of Assignee)
Dated: _____________
---------------------------------------
---------------------------------------
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the LaSalle National Bank, which requirements
include membership or participation in the Security Transfer Agent Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the LaSalle National Bank in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
NOTICE: The signature to this assignment must correspond with the name
as it appears on the first page of the within Security in every particular,
without alteration or enlargement of any change whatever.
A-7
