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EXHIBIT 4.2
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SUMMIT PROPERTIES PARTNERSHIP, L.P.
Issuer
to
FIRST UNION NATIONAL BANK
Trustee
-------------------------
Supplemental Indenture No. 4
Dated as of April 20, 2000
-------------------------
$250,000,000
of
Medium-Term Notes Due Nine Months or More
from Date of Issue
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SUPPLEMENTAL INDENTURE NO. 4, dated as of April 20, 2000 (the
"Supplemental Indenture"), between SUMMIT PROPERTIES PARTNERSHIP, L.P., a
limited partnership organized under the laws of the State of Delaware (herein
called the "Partnership"), and First Union National Bank, a national banking
association organized under the laws of the United States of America, as Trustee
(herein called the "Trustee").
RECITALS OF THE PARTNERSHIP
The Partnership has heretofore delivered to the Trustee an
Indenture dated as of August 7, 1997 (the "Senior Indenture"), a form of which
has been filed with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended, as an exhibit to the Partnership's
Registration Statement on Form S-3 (Registration No. 333-83781), providing for
the issuance from time to time of Senior Debt Securities of the Partnership (the
"Securities"). The Partnership intends by this Supplemental Indenture to (i)
create a series of debt securities to be issued from time to time, in an
aggregate initial principal amount not to exceed $250,000,000, entitled
"Medium-Term Notes Due Nine Months or More from Date of Issue" (the "Notes") and
(ii) establish the form and the terms and conditions of such Notes.
Section 301 of the Senior Indenture provides for various
matters with respect to any series of Securities issued under the Senior
Indenture to be established in an indenture supplemental to the Senior
Indenture.
Section 901(7) of the Senior Indenture provides for the
Partnership and the Trustee to enter into an indenture supplemental to the
Senior Indenture to establish the form or terms of Securities of any series as
provided by Sections 201 and 301 of the Senior Indenture.
The Board of Directors of Summit Properties Inc., the general
partner of the Partnership, has duly adopted resolutions authorizing the
Partnership to execute and deliver this Supplemental Indenture.
All the conditions and requirements necessary to make this
Supplemental Indenture, when duly executed and delivered, a valid and binding
agreement in accordance with its terms and for the purposes herein expressed,
have been performed and fulfilled.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
each of the series of Securities provided for herein by the Holders thereof, it
is mutually covenanted and agreed, for the equal and proportionate benefit of
all Holders of the Notes or of any series thereof, as follows:
ARTICLE ONE
RELATION TO SENIOR INDENTURE; DEFINITIONS
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SECTION 1.1. Relation to Senior Indenture.
This Supplemental Indenture constitutes an integral part of
the Senior Indenture.
SECTION 1.2. Definitions.
For all purposes of this Supplemental Indenture, except as
otherwise expressly provided for or unless the context otherwise requires:
(1) Capitalized terms used but not defined herein shall have
the respective meanings assigned to them in the Senior Indenture; and
(2) All references herein to Articles and Sections, unless
otherwise specified, refer to the corresponding Articles and Sections
of this Supplemental Indenture.
"Acquired Indebtedness" means Indebtedness of a Person (i)
existing at the time such Person becomes a Subsidiary or (ii) assumed in
connection with the acquisition of assets from such Person, in each case, other
than Indebtedness incurred in connection with, or in contemplation of, such
Person becoming a Subsidiary or such acquisition. Acquired Indebtedness shall be
deemed to be incurred on the date of the related acquisition of assets from any
Person or the date the acquired Person becomes a Subsidiary.
"Annual Service Charge" for any period means the aggregate
interest expense for such period in respect of, and the amortization during such
period of any original issue discount of, Indebtedness of the Partnership and
its Subsidiaries and the amount of dividends which are payable during such
period in respect of any Disqualified Stock.
"Capital Stock" means, with respect to any Person, any capital
stock (including preferred stock), shares, interests, participations or other
ownership interests (however designated) of such Person and any rights (other
than debt securities convertible into or exchangeable for corporate stock),
warrants or options to purchase any thereof.
"Consolidated Income Available for Debt Service" for any
period means Earnings from Operations of the Partnership and its Subsidiaries
plus amounts which have been deducted, and minus amounts which have been added,
for the following (without duplication): (i) interest on Indebtedness of the
Partnership and its Subsidiaries, (ii) provision for taxes of the Partnership
and its Subsidiaries based on income, (iii) amortization of debt discount, (iv)
provisions for gains and losses on properties and property depreciation and
amortization, (v) the effect of any noncash charge resulting from a change in
accounting principles in determining Earnings from Operations for such period
and (vi) amortization of deferred charges.
"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
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obligation or otherwise (other than Capital Stock which is redeemable solely in
exchange for common stock), (ii) is convertible into or exchangeable or
exercisable for Indebtedness or Disqualified Stock or (iii) is redeemable at the
option of the holder thereof, in whole or in part (other than Capital Stock
which is redeemable solely in exchange for Capital Stock which is not
Disqualified Stock or the redemption price of which may, at the option of such
Person, be paid in Capital Stock which is not Disqualified Stock), in each case
on or prior to the Stated Maturity of the Notes.
"Earnings from Operations" for any period means net earnings
excluding gains and losses on sales of investments, extraordinary items, and
property valuation losses, net as reflected in the financial statements of the
Partnership and its Subsidiaries for such period determined on a consolidated
basis in accordance with GAAP.
"Encumbrance" means any mortgage, lien, charge, pledge or
security interest of any kind.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder by the Commission.
"Fixed Rate Notes" means the Partnership's Fixed Rate Notes
due nine months or more from the date of issue, a form of which is attached
hereto as Exhibit B.
"Floating Rate Notes" means the Partnership's Floating Rate
Notes due nine months or more from the date of issue, a form of which is
attached hereto as Exhibit A.
"GAAP" means generally accepted accounting principles as used
in the United States applied on a consistent basis as in effect from time to
time; provided that solely for purposes of any calculation required by the
financial covenants contained herein, "GAAP" shall mean generally accepted
accounting principles as used in the United States on the date hereof, applied
on a consistent basis.
"Indebtedness" of the Partnership or any Subsidiary means any
indebtedness of the Partnership or any Subsidiary, whether or not contingent, in
respect of (i) borrowed money or evidenced by bonds, notes, debentures or
similar instruments whether or not such indebtedness is secured by any
Encumbrance existing on property owned by the Partnership or any Subsidiary,
(ii) indebtedness for borrowed money of a Person other than the Partnership or a
Subsidiary which is secured by any Encumbrance existing on property owned by the
Partnership or any Subsidiary, to the extent of the lesser of (x) the amount of
indebtedness so secured and (y) the fair market value of the property subject to
such Encumbrance, (iii) the reimbursement obligations, contingent or otherwise,
in connection with any letters of credit actually issued or amounts representing
the balance deferred and unpaid of the purchase price of any property or
services, except any such balance that constitutes an accrued expense or trade
payable, or all conditional sale obligations or obligations under any title
retention agreement, (iv) the principal amount of all obligations of the
Partnership or any Subsidiary with respect to redemption, repayment 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
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of items of indebtedness under (i) through (iii) above, that any such items
(other than letters of credit) would appear as a liability on the Partnership's
consolidated balance sheet in accordance with GAAP, and also includes, to the
extent not otherwise included, any obligations by the Partnership or any
Subsidiary to be liable for, or to pay, as obligor, guarantor or otherwise
(other than for purposes of collection in the ordinary course of business),
Indebtedness of another Person (other than the Partnership or any Subsidiary)
(it being understood that Indebtedness shall be deemed to be incurred by the
Partnership or any Subsidiary whenever the Partnership or such Subsidiary shall
create, assume, guarantee or otherwise become liable in respect thereof).
"Notes" has the meaning specified in Section 2.1 hereof.
"Pricing Supplement" means a pricing supplement to the
Prospectus, dated August 6, 1999, as supplemented by the Prospectus Supplement
dated April 20, 2000, setting forth the terms of the applicable Notes.
"Subsidiary" means, with respect to any Person, any
corporation or other entity of which a majority of (i) the voting power of the
voting equity securities or (ii) the outstanding equity interests of which are
owned, directly or indirectly, by such Person. For the purposes of this
definition, "voting equity securities" means equity securities having voting
power for the election of directors, whether at all times or only so long as no
senior class of security has such voting power by reason of any contingency.
"Total Assets" as of any date means the sum of (i) the
Undepreciated Real Estate Assets and (ii) all other assets of the Partnership
and its Subsidiaries determined in accordance with GAAP (but excluding accounts
receivable and intangibles).
"Total Unencumbered Assets" means the sum of (i) those
Undepreciated Real Estate Assets not subject to an Encumbrance for borrowed
money and (ii) all other assets of the Partnership and its Subsidiaries not
subject to an Encumbrance for borrowed money, determined in accordance with GAAP
(but excluding accounts receivable and intangibles).
"Undepreciated Real Estate Assets" as of any date means the
cost (original cost plus capital improvements) of real estate assets of the
Partnership and its Subsidiaries on such date, before depreciation and
amortization, determined on a consolidated basis in accordance with GAAP.
"Unsecured Indebtedness" means Indebtedness which is not
secured by any Encumbrance upon any of the properties of the Partnership or any
Subsidiary.
ARTICLE TWO
THE SERIES OF NOTES
SECTION 2.1 Title of the Securities.
There shall be a series of Securities designated the
Medium-Term Notes Due Nine Months or More from Date of Issue (the "Notes").
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SECTION 2.2 Limitation on Aggregate Principal Amount.
The aggregate principal amount of the Notes shall be limited
to $250,000,000, and, except as provided in this Section and in Section 306 of
the Indenture, the Partnership shall not execute and the Trustee shall not
authenticate or deliver Notes in excess of such aggregate principal amount;
provided however, as authorized by Section 301 of the Indenture, the Notes
series may be reopened, without the consent of the Holders, for the issuance of
such additional Notes as may be authorized by the Partnership.
Nothing contained in this Section 2.2 or elsewhere in this
Supplemental Indenture, or in the Notes, is intended to or shall limit execution
by the Partnership or authentication or delivery by the Trustee of Notes under
the circumstances contemplated by Sections 303, 304, 305, 306, 906, 1107 and
1305 of the Indenture.
SECTION 2.3 Terms and Conditions of the Notes.
The Notes shall be governed by all the terms and conditions of
the Indenture, including, without limitation, the terms and conditions set forth
in the forms of Note referred to in Section 2.9 below, as the same may be
supplemented or, to the extent allowed by the Indenture, modified by the
additional or different terms and conditions established from time to time with
respect to the Notes either in board resolutions of Summit Properties Inc. (the
"General Partner"), as sole general partner of the Partnership or by action of
authorized officers of the General Partner and, in either such case, such
additional or different terms and conditions shall be set forth in the Notes and
the related Pricing Supplement. All such terms and conditions set forth in such
Notes and in such Pricing Supplement are incorporated by reference into this
Supplemental Indenture.
SECTION 2.4 Limitations on Incurrence of Indebtedness.
(a) The Partnership will not, and will not permit any
Subsidiary to, incur any Indebtedness if, immediately after giving effect to the
incurrence of such additional Indebtedness and the application of the proceeds
thereof, the aggregate principal amount of all outstanding Indebtedness of the
Partnership and its Subsidiaries on a consolidated basis determined in
accordance with GAAP is greater than 60% of the sum of (without duplication) (i)
the Total Assets of the Partnership and its Subsidiaries as of the end of the
calendar quarter covered in the Partnership's Annual Report on Form 10-K or
Quarterly Report on Form 10-Q, as the case may be, most recently filed with the
Commission (or, if such filing is not permitted under the Exchange Act, with the
Trustee) prior to the incurrence of such additional Indebtedness and (ii) the
purchase price of any real estate assets or mortgages receivable acquired, and
the amount of any securities offering proceeds received (to the extent such
proceeds were not used to acquire real estate assets or mortgages receivable or
used to reduce Indebtedness), by the Partnership or any Subsidiary since the end
of such calendar quarter, including those proceeds obtained in connection with
the incurrence of such additional Indebtedness.
(b) In addition to the limitation set forth in subsection (a)
of this Section 2.4, the Partnership will not, and will not permit any
Subsidiary to, incur any Indebtedness if the ratio of Consolidated Income
Available for Debt Service to the Annual Service Charge
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for the four consecutive fiscal quarters most recently ended prior to the date
on which such additional Indebtedness is to be incurred shall have been less
than 1.5:1, on a pro forma basis after giving effect thereto and to the
application of the proceeds therefrom, and calculated on the assumption that (i)
such Indebtedness and any other Indebtedness incurred by the Partnership and its
Subsidiaries since the first day of such four-quarter period and the application
of the proceeds therefrom, including to refinance other Indebtedness, had
occurred at the beginning of such period; (ii) the repayment or retirement of
any other Indebtedness by the Partnership and its Subsidiaries since the first
day of such four-quarter period had been repaid or retired at the beginning of
such period (except that, in making such computation, the amount of Indebtedness
under any revolving credit facility shall be computed based upon the average
daily balance of such Indebtedness during such period); (iii) in the case of
Acquired Indebtedness or Indebtedness incurred in connection with any
acquisition since the first day of such four-quarter period, the related
acquisition had occurred as of the first day of such period with the appropriate
adjustments with respect to such acquisition being included in such pro forma
calculation; and (iv) in the case of any acquisition or disposition by the
Partnership or its Subsidiaries of any asset or group of assets since the first
day of such four-quarter period, whether by merger, stock purchase or sale, or
asset purchase or sale, such acquisition or disposition or any related repayment
of Indebtedness had occurred as of the first day of such period with the
appropriate adjustments with respect to such acquisition or disposition being
included in such pro forma calculation.
(c) In addition to the limitations set forth in subsections
(a) and (b) of this Section 2.4, the Partnership will not, and will not permit
any Subsidiary to, incur any Indebtedness secured by any Encumbrance upon any of
the property of the Partnership or any Subsidiary if, immediately after giving
effect to the incurrence of such additional Indebtedness and the application of
the proceeds thereof, the aggregate principal amount of all outstanding
Indebtedness of the Partnership and its Subsidiaries on a consolidated basis
which is secured by any Encumbrance on property of the Partnership or any
Subsidiary is greater than 40% of the sum of (without duplication) (i) the Total
Assets of the Partnership and its Subsidiaries as of the end of the calendar
quarter covered in the Partnership's Annual Report on Form 10-K or Quarterly
Report on Form 10-Q, as the case may be, most recently filed with the Commission
(or, if such filing is not permitted under the Exchange Act, with the Trustee)
prior to the incurrence of such additional Indebtedness and (ii) the purchase
price of any real estate assets or mortgages receivable acquired, and the amount
of any securities offering proceeds received (to the extent that such proceeds
were not used to acquire real estate assets or mortgages receivable or used to
reduce Indebtedness), by the Partnership or any Subsidiary since the end of such
calendar quarter, including those proceeds obtained in connection with the
incurrence of such additional Indebtedness.
(d) The Partnership and its Subsidiaries may not at any time
own Total Unencumbered Assets equal to less than 150% of the aggregate
outstanding principal amount of the Unsecured Indebtedness of the Partnership
and its Subsidiaries on a consolidated basis.
(e) For purposes of this Section 2.4, Indebtedness shall be
deemed to be "incurred" by the Partnership or a Subsidiary whenever the
Partnership or such Subsidiary shall create, assume, guarantee or otherwise
become liable in respect thereof.
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SECTION 2.5 Defeasance.
The provisions of Sections 1402 and 1403 of the Senior
Indenture, together with the other provisions of Article Fourteen of the Senior
Indenture, shall be applicable to the Notes. The provisions of Section 1403 of
the Senior Indenture shall apply to the covenants set forth in Sections 2.4 and
2.10 of this Supplemental Indenture and to those covenants specified in Section
1403 of the Senior Indenture.
SECTION 2.6 Events of Default
The provisions of clause (5) of Section 501 of the Senior
Indenture as applicable with respect to the Notes shall be deemed to be amended
and restated in their entirety to read as follows:
(5) default under any bond, debenture, note, mortgage,
indenture or instrument under which there may be issued or by which there may be
secured or evidenced any indebtedness for money borrowed by the Partnership (or
by any Subsidiary, the repayment of which the Partnership has guaranteed or for
which the Partnership is directly responsible or liable as obligor or
guarantor), having an aggregate principal amount outstanding of at least
$10,000,000, whether such indebtedness now exists or shall hereafter be created,
which default shall have resulted in such indebtedness becoming or being
declared due and payable prior to the date on which it would otherwise have
become due and payable, without such indebtedness having been discharged, or
such acceleration having been rescinded or annulled, within a period of 10 days
after there shall have been given written notice, by registered or certified
mail, to the Partnership by the Trustee or to the Partnership and the Trustee by
the Holders of at least 10% in principal amount of the Outstanding Securities of
that series a written notice specifying such default and requiring the
Partnership to cause such indebtedness to be discharged or cause such
acceleration to be rescinded or annulled and stating that such notice is a
"Notice of Default" hereunder; or
The provisions of Section 501 of the Senior Indenture as
applicable with respect to the Notes shall be further deemed to be amended by
renumbering existing clause (8) to be clause (9) and by adding the following new
clause (8):
(8) the entry by a court of competent jurisdiction of one or
more judgments, orders or decrees against the Partnership or any of its
Subsidiaries in an aggregate amount (excluding amounts covered by insurance) in
excess of $10,000,000 and such judgments, orders or decrees remain undischarged,
unstayed and unsatisfied in an aggregate amount (excluding amounts covered by
insurance) in excess of $10,000,000 for a period of 30 consecutive days; or
SECTION 2.7 Acceleration of Maturity; Rescission and Annulment
The provisions of the first paragraph of Section 502 of the
Senior Indenture as applicable with respect to the Notes shall be deemed to be
amended and restated in their entirety to read as follows:
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If an Event of Default with respect to Securities of any
series at the time Outstanding occurs and is continuing, then in every such case
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal (or, if any
Securities are Original Issue Discount Securities or Indexed Securities, such
portion of the principal as may be specified in the terms thereof) of, all the
Securities of that series to be due and payable immediately, by a notice in
writing to the Partnership (and to the Trustee if given by the Holders), plus
accrued interest to the date the Securities of that series are paid, and upon
any such declaration such principal or specified portion thereof shall become
immediately due and payable. With respect to the Securities of any series, if an
Event of Default set forth in Section 501(6) of the Senior Indenture occurs and
is continuing, then in every such case all the Securities of that series shall
become immediately due and payable, without notice to the Partnership, at the
principal amount thereof (or, if any Securities are Original Issue Discount
Securities or Indexed Securities, such portion of the principal as may be
specified in the terms thereof) plus accrued interest to the date the Securities
of that series are paid.
SECTION 2.8 Registered Securities.
Each Note shall be issuable and transferable in fully
registered book-entry form or certificated form as specified in the applicable
Pricing Supplement.
SECTION 2.9 Form of Notes.
The Floating Rate Notes shall be substantially in the form
attached as Exhibit A hereto. The Fixed Rate Notes shall be substantially in the
form attached as Exhibit B hereto.
SECTION 2.10 Provision of Financial Information.
Whether or not the Partnership is subject to Section 13 or
15(d) of the Exchange Act, the Partnership will, to the extent permitted under
the Exchange Act, file with the Commission the annual reports, quarterly reports
and other documents which the Partnership would have been required to file with
the Commission pursuant to such Section 13 or 15(d) if the Partnership were so
subject, such documents to be filed with the Commission on or prior to the
respective dates (the "Required Filing Dates") by which the Partnership would
have been required so to file such documents if the Partnership were so subject.
The Partnership will also in any event (x) within 15 days of
each Required Filing Date (i) if the Partnership is not then subject to Section
13 or 15(d) of the Exchange Act, transmit by mail to all Holders, as their names
and addresses appear in the Security Register, without cost to such Holders,
copies of the annual reports and quarterly reports which the Partnership would
have been required to file with the Commission pursuant to Section 13 or 15(d)
of the Exchange Act if the Partnership were subject to such Sections, and (ii)
file with the Trustee copies of annual reports, quarterly reports and other
documents which the Partnership would have been required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act if the
Partnership were subject to such Sections and (y) if filing such documents by
the Partnership with the Commission is not permitted under
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the Exchange Act, promptly upon written request and payment of the reasonable
cost of duplication and delivery, supply copies of such documents to any
prospective Holder.
SECTION 2.11 Waiver of Certain Covenants.
Notwithstanding the provisions of Section 1010 of the Senior
Indenture, the Partnership may omit in any particular instance to comply with
any term, provision or condition set forth in Sections 1004 to 1007, inclusive,
of the Senior Indenture, with Sections 2.4 and 2.10 of this Supplemental
Indenture and with any other term, provision or condition with respect to the
Notes or either series thereof (except any such term, provision or condition
which could not be amended without the consent of all Holders of the Notes or
such series thereof, as applicable), if before or after the time for such
compliance the Holders of at least a majority in principal amount of all
outstanding Notes or such series thereof, as applicable, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such covenant or condition. Except to the extent so expressly waived, and until
such waiver shall become effective, the obligations of the Partnership and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
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ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 3.1. Ratification of Senior Indenture.
Except as expressly modified or amended hereby, the Senior
Indenture continues in full force and effect and is in all respects confirmed
and preserved.
SECTION 3.2. Governing Law.
This Supplemental Indenture and each Note shall be governed by
and construed in accordance with the laws of the State of New York. This
Supplemental Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, and shall, to the extent applicable, be governed by such
provisions.
SECTION 3.3. Counterparts.
This Supplemental Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed by their respective officers hereunto
duly authorized, all as of the day and year first written above.
SUMMIT PROPERTIES PARTNERSHIP, L.P.
By: Summit Properties Inc.,
its general partner
By: /s/ Michael L. Schwarz
---------------------------------
Michael L. Schwarz
Executive Vice President and
Chief Financial Officer
FIRST UNION NATIONAL BANK,
as Trustee
By: /s/ Shannon Schwartz
---------------------------------
Shannon Schwartz
Vice President
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EXHIBIT A
[FACE OF NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (THE "DEPOSITARY") (55 WATER STREET, NEW YORK, NEW YORK) TO THE
ISSUER HEREOF OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY AND ANY PAYMENT
IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.(1)
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR ANOTHER NOMINEE OF SUCH SUCCESSOR DEPOSITARY.(2)
REGISTERED PRINCIPAL AMOUNT:
No. FLR-
CUSIP No:
SUMMIT PROPERTIES PARTNERSHIP, L.P.
MEDIUM-TERM NOTE
(Floating Rate)
INTEREST RATE BASIS ORIGINAL ISSUE DATE: STATED MATURITY DATE:
OR BASES:
IF LIBOR: IF CMT RATE:
[ ] LIBOR REUTERS Designated CMT Telerate Page:
Page: If Telerate Page 7052:
[ ]- LIBOR Telerate [ ] Weekly Average
Page: [ ] Monthly Average
Designated CMT Maturity Index:
- ------------------------
(1) This paragraph applies to global Notes only.
(2) This paragraph applies to global Notes only.
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INDEX CURRENCY:
INDEX MATURITY: INITIAL INTEREST RATE: % INTEREST PAYMENT
DATE(S):
SPREAD (PLUS OR SPREAD MULTIPLIER: INITIAL INTEREST RESET
MINUS): DATE:
MINIMUM INTEREST RATE: % MAXIMUM INTEREST INTEREST RESET
RATE: % DATE(S):
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: % PERCENTAGE REDUCTION
OPTIONAL REPAYMENT CALCULATION AGENT:
DATE(S):
INTEREST CATEGORY: DAY COUNT CONVENTION:
[ ] Regular Floating Rate Note [ ] 30/360 for the period
[ ] Floating Rate/Fixed Rate Note from to
Fixed Rate Commencement Date: [ ] Actual/360 for the period
Fixed Rate Interest Rate: % from to
[ ] Inverse Floating Rate Note [ ] Actual/Actual for the period
Fixed Interest Rate % from to
[ ] Original Issue Discount Note Applicable Interest Rate Basis:
Issue Price: %
SPECIFIED CURRENCY: AUTHORIZED DENOMINATION:
[ ] United States dollars [ ] $1,000 and integral multiples thereof
[ ] Other: [ ] Other:
EXCHANGE RATE:
U.S.$1.00 = _______
EXCHANGE RATE AGENT:
AMORTIZING SECURITY:
[ ] Yes
[ ] No
AMORTIZATION FORMULA:
AMORTIZATION PAYMENT DATE(S):
DEFAULT RATE: %
ADDENDUM ATTACHED:
[ ] Yes
[ ] No
OTHER/ADDITIONAL PROVISIONS:
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SUMMIT PROPERTIES PARTNERSHIP, L.P., a limited partnership duly organized
and existing under the laws of Delaware (hereinafter referred to as the
"Partnership", which term includes any successor entity under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
________________, or registered assigns, the principal sum of
_______________, on the Stated Maturity Date specified above (or any
Redemption Date or Repayment Date, each as defined below) (each such Stated
Maturity Date, Redemption Date or Repayment Date being hereinafter referred
to as the "Maturity Date" with respect to the principal repayable on such
date) and to pay interest thereon, at a rate per annum equal to the initial
Interest Rate specified above until the Initial Interest Reset Date
specified above and thereafter at a rate determined in accordance with the
provisions specified above and on the reverse hereof or in an Addendum
hereto with respect to one or more Interest Rate Bases specified above
until the principal hereof is paid or duly made available for payment, and
(to the extent that the payment of such interest shall be legally
enforceable) at the Default Rate per annum specified above on any overdue
principal, premium and/or interest, including any overdue sinking fund or
redemption payment. The Partnership will pay interest in arrears on each
Interest Payment Date, if any, specified above (each, an "Interest Payment
Date"), commencing with the first Interest Payment Date next succeeding the
Original Issue Date specified above, and on the Maturity Date; provided,
however, that if the Original Issue Date occurs between a Record Date (as
defined below) and the next succeeding Interest Payment Date, interest
payments will commence on the second Interest Payment Date next succeeding
the Original Issue Date to the holder of this Note on the Record Date with
respect to such second Interest Payment Date.
Interest on this Note will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for (or from, and including, the Original Issue Date if no interest has been
paid or duly provided for) to, but excluding, the applicable Interest Payment
Date or the Maturity Date, as the case may be (each, an "Interest Period"). The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, subject to certain exceptions described herein, be paid to
the person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the fifteenth calendar day (whether or
not a Business Day, as defined on the reverse hereof) immediately preceding such
Interest Payment Date (the "Record Date"); provided, however, that interest
payable on the Maturity Date will be payable to the person to whom the principal
hereof and premium, if any, hereon shall be payable. Any such interest not so
punctually paid or duly provided for ("Defaulted Interest") will forthwith cease
to be payable to the holder on any Record Date, and shall be paid to the person
in whose name this Note is registered at the close of business on a special
record date (the "Special Record Date") for the payment of such Defaulted
Interest to be fixed by the Trustee hereinafter referred to, notice whereof
shall be given to the holder of this Note by the Trustee not more than 15 days
and not less than 10 days prior to such Special Record Date or may be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which this Note may be listed, and upon such notice
as may be required by such exchange, all as more fully provided for in the
Indenture.
Payment of principal, premium, if any, and interest in respect of this
Note due on the Maturity Date, or any prior date on which the principal or an
installment of principal of this Note becomes due and payable, whether by the
declaration of acceleration or otherwise, will be made in immediately available
funds upon presentation and surrender of this Note (and, with respect to
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16
any applicable repayment of this Note, upon presentation and surrender of this
Note and a duly completed election form as contemplated on the reverse hereof)
at the office or agency maintained by the Partnership for that purpose in the
Borough of Manhattan, The City of New York; provided, however, that if the
Specified Currency specified above is other than United States dollars and such
payment is to be made in the Specified Currency in accordance with the
provisions set forth below, such payment may be made by wire transfer of
immediately available funds to an account with a bank designated by the holder
hereof at least 15 calendar days prior to the Maturity Date, provided that such
bank has appropriate facilities therefor and that this Note (and, if applicable,
a duly completed repayment election form) is presented and surrendered at the
aforementioned office or agency maintained by the Partnership in time for the
Trustee or the Designated Agent to make such payment in such funds in accordance
with its normal procedures. Payment of interest due on any Interest Payment Date
other than the Maturity Date will be made at the aforementioned office of agency
maintained by the Partnership or, at the option of the Partnership, by check
mailed to the address of the person entitled thereto as such address shall
appear in the Security Register maintained by the Trustee or the Designated
Agent; provided, however, that a holder of U.S.$10,000,000 (or, if the Specified
Currency is other than United States dollars, the equivalent thereof in the
Specified Currency) or more in aggregate principal amount of Notes (whether
having identical or different terms and provisions) will be entitled to receive
interest payments on any Interest Payment Date other than the Maturity Date by
wire transfer of immediately available funds if appropriate wire transfer
instructions have been received in writing by the Trustee or the Designated
Agent not less than 15 calendar days prior to such Interest Payment Date. Any
such wire transfer instructions received by the Trustee or the Designated Agent
shall remain in effect until revoked by such holder.
If any Interest Payment Date other than the Maturity Date would
otherwise be a day that is not a Business Day, such Interest Payment Date shall
be postponed to the next succeeding Business Day, except that if LIBOR is an
applicable Interest Rate Basis and such Business Day falls in the next
succeeding calendar month, such Interest Payment Date shall be the immediately
preceding Business Day. If the Maturity Date falls on a day that is not a
Business Day, the required payment of principal, premium, if any, and interest
shall be made on the next succeeding Business Day with the same force and effect
as if made on the date such payment was due, and no interest shall accrue with
respect to such payment for the period from and after the Maturity Date to the
date of such payment on the next succeeding Business Day.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking institutions
are authorized or required by law, regulation or executive order to close in The
City of New York, or Charlotte, North Carolina; provided, however, that if the
Specified Currency is other than United States dollars, such day is also not a
day on which banking institutions are authorized or required by law, regulation
or executive order to close in the Principal Financial Center (as defined below)
of the country issuing the Specified Currency (or, if the Specified Currency is
European Currency Units ("ECU"), such day is not a day that appears as an ECU
non-settlement day on the display designated as "ISDE" on the Reuter Monitor
Money Rates Service (or a day so designated by the ECU Banking Association), or,
if ECU non-settlement days do not appear on that page (and are not so
designated), is not a day on which payments in ECU cannot be settled in the
international interbank market); provided, further, that if LIBOR is an
applicable Interest Rate Basis, such day is also a London Business Day (as
defined below). "London Business Day" means (i) if the
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17
Index Currency (as defined below) is other than ECU, any day on which dealings
in such Index Currency are transacted in the London interbank market or (ii) if
the Index Currency is ECU, any day that does not appear as an ECU non-settlement
day on the display designated as "ISDE" on the Reuter Monitor Money Rates
Service (or a day so designated by the ECU Banking Association) or, if ECU
non-settlement days do not appear on that page (and are not so designated), is
not a day on which payments in ECU cannot be settled in the international
interbank market. "Principal Financial Center" means the capital city of the
country issuing the Specified Currency or, solely with respect to the
calculation of LIBOR, the Index Currency, except that with respect to United
States dollars, Australian dollars, Deutsche marks, Dutch guilders, Italian
lire, Portuguese escudos, South African rand and Swiss francs, the Principal
Financial Center shall be The City of New York, Sydney, Toronto, Frankfurt,
Amsterdam, Milan, London, Johannesburg and Zurich, respectively.
The Partnership is obligated to make payments of principal, premium, if
any, and interest in respect of this Note in the Specified Currency (or, if the
Specified Currency is not at the time of such payment legal tender for the
payment of public and private debts, in such other coin or currency of the
country which issued the Specified Currency as at the time of such payment is
legal tender for the payment of such debts). If the Specified Currency is other
than United States dollars, except as provided below, any such amounts so
payable by the Partnership will be converted by the Exchange Rate Agent
specified above into United States dollars for payment to the holder of this
Note.
If the Specified Currency is other than United States dollars, the
holder of this Note may elect to receive such amounts in such Specified
Currency. If the holder of this Note shall not have duly made an election to
receive all or a specified portion of any payment of principal, premium, if any,
and/or interest in respect of this Note in the Specified Currency, any United
States dollar amount to be received by the holder of this Note will be based on
the highest bid quotation in The City of New York received by the Exchange Rate
Agent at approximately 11:00 A.M., New York City time, on the second Business
Day preceding the applicable payment date from three recognized foreign exchange
dealers (one of whom may be the Exchange Rate Agent) selected by the Exchange
Rate Agent and approved by the Partnership for the purchase by the quoting
dealer of the Specified Currency for United States dollars for settlement on
such payment date in the aggregate amount of such Specified Currency payable to
all holders of Foreign Currency Notes scheduled to receive United States dollar
payments and at which the applicable dealer commits to execute a contract. All
currency exchange costs will be borne by the holder of this Note by deductions
from such payments. If three such bid quotations are not available, payments on
this Note will be made in the Specified Currency.
If the Specified Currency is other than United States dollars, the
holder of this Note may elect to receive all or a specified portion of any
payment of principal, premium, if any, and/or interest in respect of this Note
in the Specified Currency by submitting a written request for such payment to
the Trustee or the Designated Agent at its corporate trust office in The City of
New York on or prior to the applicable Record Date or at least 15 calendar days
prior to the Maturity Date, as the case may be. Such written request may be
mailed or hand delivered or sent by cable, telex or other form of facsimile
transmission. The holder of this Note may elect to receive all or a specified
portion of all future payments in the Specified Currency in respect of such
principal, premium, if any, and/or interest and need not file a separate
election for each payment. Such
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18
election will remain in effect until revoked by written notice to the Trustee or
the Designated Agent, but written notice of any such revocation must be received
by the Trustee or the Designated Agent on or prior to the applicable Record Date
or at least 15 calendar days prior to the Maturity Date, as the case may be. If
the Specified Currency is other than United States dollars or a composite
currency and the holder of this Note shall have duly made an election to receive
all or a specified portion of any payment of principal, premium, if any, and/or
interest in respect of this Note in the Specified Currency and if the Specified
Currency is not available due to the imposition of exchange controls or other
circumstances beyond the reasonable control of the Partnership, the Partnership
will be entitled to satisfy its obligations to the holder of this Note by making
such payment in United States dollars on the basis of the Market Exchange Rate
(as defined below) on the second Business Day prior to such payment date or, if
such Market Exchange Rate is not then available, on the basis of the most
recently available Market Exchange Rate or as otherwise specified on the face
hereof. The "Market Exchange Rate" for the Specified Currency means the noon
dollar buying rate in The City of New York for cable transfers for such
Specified Currency as certified for customs purposes by (or if not so certified,
as otherwise determined by) the Federal Reserve Bank of New York. Any payment
made under such circumstances in United States dollars will not constitute an
Event of Default (as defined in the Indenture) with respect to this Note.
If the Specified Currency is a composite currency and the holder of
this Note shall have duly made an election to receive all or a specified portion
of any payment of principal, premium, if any, and/or interest in respect of this
Note in the Specified Currency and if such composite currency is unavailable due
to the imposition of exchange controls or other circumstances beyond the
reasonable control of the Partnership, then the Partnership will be entitled to
satisfy its obligations to the holder of this Note by making such payment in
United States dollars. The amount of each payment in United States dollars shall
be computed by the Exchange Rate Agent on the basis of the equivalent of the
composite currency in United States dollars. The component currencies of the
composite currency for this purpose (collectively, the "Component Currencies"
and each, a "Component Currency") shall be the currency amounts that were
components of the composite currency as of the last day on which the composite
currency was used. The equivalent of the composite currency in United States
dollars shall be calculated by aggregating the United States dollar equivalents
of the Component Currencies. The United States dollar equivalent of each of the
Component Currencies shall be determined by the Exchange Rate Agent on the basis
of the most recently available Market Exchange Rate for each such Component
Currency, or as otherwise specified on the face hereof.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
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19
All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the holder of this Note.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof and, if so specified above on the face hereof, in
the Addendum hereto, which further provisions shall have the same force and
effect as if set forth on the face hereof.
Notwithstanding any provisions to the contrary contained herein, if the
face of this Note specifies that an Addendum is attached hereto or that
"Other/Additional Provisions" apply to this Note, this Note shall be subject to
the terms set forth in such Addendum or such "Other/Additional Provisions".
Unless the Certificate of Authentication hereon has been executed by
the Trustee or its Authenticating Agent by manual signature, this Note shall not
be entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
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20
IN WITNESS WHEREOF, SUMMIT PROPERTIES PARTNERSHIP, L.P. has caused this
Note to be duly executed under its seal.
SUMMIT PROPERTIES PARTNERSHIP, L.P.
By: Summit Properties Inc,
its General Partner
By:
-------------------------------------
Steven R. LeBlanc
President and Chief Operating Officer
Dated:
[SEAL]
Attest:
- -------------------------------------
Michael G. Malone
Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
FIRST UNION NATIONAL BANK,
as Trustee
By:
----------------------------
Authorized Signatory
Dated:
8
21
[REVERSE OF NOTE]
SUMMIT PROPERTIES PARTNERSHIP, L.P.
MEDIUM-TERM NOTE
(Floating Rate)
This Note is one of a duly authorized series of Securities (the
"Securities") of the Partnership issued and to be issued under an Indenture,
dated as of August 7, 1997, as supplemented by Supplemental Indenture No. 4
dated as of April 20 , 2000, as further amended, modified or supplemented from
time to time (the "Indenture"), between the Partnership and First Union National
Bank, as Trustee (the "Trustee," which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Trust, the Trustee and the
holders of the Securities, and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Note is one of the series of
Securities designated as "Medium-Term Notes Due Nine Months or More from Date of
Issue" (the "Notes"). All terms used but not defined in this Note or in an
Addendum hereto shall have the meanings assigned to such terms in the Indenture
or on the face hereof, as the case may be.
This Note is issuable only in registered form without coupons in
minimum denominations of U.S.$1,000 and integral multiples thereof or the
minimum Authorized Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless otherwise
specified on the face hereof in accordance with the provisions of the following
two paragraphs, will not be redeemable or repayable prior to the Stated Maturity
Date.
This Note will be subject to redemption at the option of the
Partnership on any date on and after the Initial Redemption Date, if any,
specified on the face hereof, in whole or from time to time in part in
increments of U.S.$1,000 or the minimum Authorized Denomination (provided that
any remaining principal amount hereof shall be at least U.S.$1,000 or such
minimum Authorized Denomination), at the Redemption Price (as defined below),
together with unpaid interest accrued thereon to the date fixed for redemption
(each, a "Redemption Date"), on notice given not more than 60 nor less than 30
calendar days prior to the Redemption Date and in accordance with the provisions
of the Indenture. The "Redemption Price" shall initially be the Initial
Redemption Percentage specified on the face hereof multiplied by the unpaid
principal amount of this Note to be redeemed. The Initial Redemption Percentage
shall decline at each anniversary of the Initial Redemption Date by the Annual
Redemption Percentage Reduction, if any, specified on the face hereof until the
Redemption Price is 100% of the unpaid principal amount to be redeemed. In the
event of redemption of this Note in part only, a new Note of like tenor for the
unredeemed portion hereof and otherwise having the same terms as this Note shall
be issued in the name of the holder hereof upon the presentation and surrender
hereof.
This Note will be subject to repayment by the Partnership at the option
of the holder hereof on the Optional Repayment Date(s), if any, specified on the
face hereof, in whole or in part in increments of U.S.$1,000 or the minimum
Authorized Denomination (provided that any remaining principal amount hereof
shall be at least U.S.$1,000 or such minimum Authorized
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22
Denomination), at a repayment price equal to 100% of the unpaid principal amount
to be repaid, together with unpaid interest accrued thereon to the date fixed
for repayment (each, a "Repayment Date"). For this Note to be repaid, the
Trustee or the Designated Agent must receive at its office in the Borough of
Manhattan, The City of New York, referred to on the face hereof, at least 30
days but not more than 60 days prior to the Repayment Date (i) this Note and the
form hereon entitled "Option to Elect Repayment" duly completed or (ii) a
telegram, telex, facsimile transmission, or a letter from a member of a national
securities exchange or the National Association of Securities Dealers, Inc. or a
commercial bank or trust company in the United States setting forth the name of
the holder hereof, the principal amount of this Note, the principal amount of
this Note to be repaid, the certificate number or a description of the tenor and
terms of this Note, a statement that the option to elect repayment is being
exercised thereby, and a guarantee that this Note, together with the form hereon
entitled "Option to Elect Repayment" duly completed, will be received by the
Trustee or the Designated Agent not later than the fifth Business Day after the
date of such telegram, telex, facsimile transmission or letter, provided that
such telegram, telex, facsimile transmission or letter shall only be effective
if this Note and duly completed form are received by the Trustee or the
Designated Agent by such fifth Business Day. Exercise of such repayment option
by the holder hereof will be irrevocable. In the event of repayment of this Note
in part only, a new Note of like tenor for the unrepaid portion hereof and
otherwise having the same terms as this Note shall be issued in the name of the
holder hereof upon the presentation and surrender hereof.
If this Note is an Original Issue Discount Note as specified on the
face hereof, the amount payable to the holder of this Note in the event of
redemption, repayment or acceleration of maturity of this Note will be equal to
the sum of (i) the Issue Price specified on the face hereof (increased by any
accruals of the Discount, as defined below) and, in the event of any redemption
of this Note (if applicable), multiplied by the Initial Redemption Percentage
(as adjusted by the Annual Redemption Percentage Reduction, if applicable) and
(ii) any unpaid interest on this Note accrued from the Original Issue Date to
the Redemption Date, Repayment Date or date of acceleration of maturity, as the
case may be. The difference between the Issue Price and 100% of the principal
amount of this Note is referred to herein as the "Discount."
For purposes of determining the amount of Discount that has accrued as
of any Redemption Date, Repayment Date or date of acceleration of maturity of
this Note, such Discount will be accrued using a constant yield method. The
constant yield will be calculated using a 30-day month, 360-day year convention,
a compounding period that, except for the Initial Period (as defined below),
corresponds to the shortest period between Interest Payment Dates (with ratable
accruals within a compounding period), a coupon rate equal to the initial coupon
rate applicable to this Note and an assumption that the maturity of this Note
will not be accelerated. If the period from the Original Issue Date to the
initial Interest Payment Date (the "Initial Period") is shorter than the
compounding period for this Note, a proportionate amount of the yield for an
entire compounding period will be accrued. If the Initial Period is longer than
the compounding period, then such period will be divided into a regular
compounding period and a short period, with the short period being treated as
provided in the preceding sentence.
The interest rate borne by this Note will be determined as follows:
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23
(i) Unless the Interest Category of this Note is specified on
the face hereof as a "Floating Rate/Fixed Rate Note" or an "Inverse
Floating Rate Note" or as otherwise specified as Other/Additional
Provisions on the face hereof or in an Addendum hereto, this Note shall
be designated as a "Regular Floating Rate Note" and, except as set
forth below or specified on the face hereof or in an Addendum hereto,
shall bear interest at the rate determined by reference to the
applicable Interest Rate Basis or Bases (a) plus or minus the Spread,
if any, and/or (b) multiplied by the Spread Multiplier, if any, in each
case as specified on the face hereof.
Commencing on the Initial Interest Reset Date, the rate at
which interest on this Note shall be payable shall be reset as of each
Interest Reset Date specified on the face hereof; provided, however,
that the interest rate in effect for the period, if any, from the
Original Issue Date to the Initial Interest Reset Date shall be the
Initial Interest Rate.
(ii) If the Interest Category of this Note is specified on the
face hereof as a "Floating Rate/Fixed Rate Note", then, except as set
forth below or specified on the face hereof or in an Addendum hereto,
this Note shall bear interest at the rate determined by reference to
the applicable Interest Rate Basis or Bases (a) plus or minus the
Spread, if any, and/or (b) multiplied by the Spread Multiplier, if any.
Commencing on the Initial Interest Reset Date, the rate at which
interest on this Note shall be payable shall be reset as of each
Interest Reset Date; provided, however, that (y) the interest rate in
effect for the period, if any, from the Original Issue Date to the
Initial Interest Reset Date shall be the Initial Interest Rate and (z)
the interest rate in effect for the period commencing on the Fixed Rate
Commencement Date specified on the face hereof to the Maturity Date
shall be the Fixed Interest Rate specified on the face hereof or, if no
such Fixed Interest Rate is specified, the interest rate in effect
hereon on the day immediately preceding the Fixed Rate Commencement
Date.
(iii) If the Interest Category of this Note is specified on
the face hereof as an "Inverse Floating Rate Note," then, except as set
forth below or specified on the face hereof or in an Addendum hereto,
this Note shall bear interest at the Fixed Interest Rate minus the rate
determined by reference to the applicable Interest Rate Basis or Bases
(a) plus or minus the Spread, if any, and/or (b) multiplied by the
Spread Multiplier, if any; provided, however, that, unless otherwise
specified on the face hereof or in an Addendum hereto, the interest
rate hereon shall not be less than zero. Commencing on the Initial
Interest Reset Date, the rate at which interest on this Note shall be
payable shall be reset as of each Interest Reset Date; provided,
however, that the interest rate in effect for the period, if any, from
the Original Issue Date to the Initial Interest Reset Date shall be the
Initial Interest Rate.
Except as set forth above or specified on the face hereof or in an
Addendum hereto, the interest rate in effect on each day shall be (i) if such
day is an Interest Reset Date, the interest rate determined as of the Interest
Determination Date (as defined below) immediately preceding such Interest Reset
Date or (ii) if such day is not an Interest Reset Date, the interest rate
determined as of the Interest Determination Date immediately preceding the most
recent Interest Reset Date. If any Interest Reset Date would otherwise be a day
that is not a Business Day, such Interest Reset Date shall be postponed to the
next succeeding Business Day, except that if
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LIBOR is an applicable Interest Rate Basis and such Business Day falls in the
next succeeding calendar month, such Interest Reset Date shall be the
immediately preceding Business Day. In addition, if the Treasury Rate is an
applicable Interest Rate Basis and the Interest Determination Date would
otherwise fall on an Interest Reset Date, then such Interest Reset Date will be
postponed to the next succeeding Business Day.
The interest rate applicable to each Interest Reset Period commencing
on the related Interest Reset Date will be determined by the Calculation Agent
as of the applicable Interest Determination Date and will be calculated by the
Calculation Agent on or prior to the Calculation Date (as defined below), except
with respect to LIBOR and the Eleventh District Cost of Funds Rate, which will
be calculated on such Interest Determination Date. The "Interest Determination
Date" with respect to the CD Rate, the CMT Rate, the Commercial Paper Rate, the
Federal Funds Rate and the Prime Rate will be the second Business Day
immediately preceding the applicable Interest Reset Date; the "Interest
Determination Date" with respect to the Eleventh District Cost of Funds Rate
shall be the last business day of the month immediately preceding the applicable
Interest Reset Date on which the Federal Home Loan Bank of San Francisco (the
"FHLB of San Francisco") publishes the Index (as defined below); and the
"Interest Determination Date" with respect to LIBOR shall be the second London
Business Day immediately preceding the applicable Interest Reset Date, unless
the Index Currency is British pounds sterling, in which case the "Interest
Determination Date" will be the applicable Interest Reset Date. The "Interest
Determination Date", with respect to the Treasury Rate shall be the day in the
week in which the applicable Interest Reset Date falls on which day Treasury
Bills (as defined below) are normally auctioned (Treasury Bills are normally
sold at an auction held on Monday of each week, unless that day is a legal
holiday, in which case the auction is normally held on the following Tuesday,
except that such auction may be held on the preceding Friday); provided,
however, that if an auction is held on the Friday of the week preceding the
applicable Interest Reset Date, the "Interest Determination Date" shall be such
preceding Friday. If the interest rate of this Note is determined with reference
to two or more Interest Rate Bases specified on the face hereof, the "Interest
Determination Date" pertaining to this Note shall be the most recent Business
Day which is at least two Business Days prior to the applicable Interest Reset
Date on which each Interest Rate Basis is determinable. Each Interest Rate Basis
shall be determined as of such date, and the applicable interest rate shall take
effect on the applicable Interest Reset Date.
Unless otherwise specified on the face hereof or in an Addendum hereto,
the rate with respect to each Interest Rate Basis will be determined in
accordance with the following provisions.
CD Rate. If an Interest Rate Basis for this Note is specified on the
face hereof as the CD Rate, the CD Rate shall be determined as of the applicable
Interest Determination Date (a "CD Rate Interest Determination Date") as the
rate on such date for negotiable United States dollar certificates of deposit
having the Index Maturity specified on the face hereof as published by the Board
of Governors of the Federal Reserve System in "Statistical Release H.15(519),
Selected Interest Rates" or any successor publication ("H.15(519)") under the
heading "CDs (secondary market)", or, if not published by 3:00 P.M., New York
City time, on the related Calculation Date, the rate on such CD Rate Interest
Determination Date for negotiable United States dollar certificates of deposit
of the Index Maturity as published in H.15 Daily Update or such other
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25
recognized electronic source used for the purpose of displaying such rate, under
the caption "CDs (secondary market)." If such rate is not yet published in
either H.15(519) or H.15 Daily Update or another recognized electronic source by
3:00 P.M., New York City time, on the related Calculation Date, then the CD Rate
on such CD Rate Interest Determination Date will be calculated by the
Calculation Agent specified on the face hereof and will be the arithmetic mean
of the secondary market offered rates as of 10:00 A.M., New York City time, on
such CD Rate Interest Determination Date, of three leading non-bank dealers in
negotiable United States dollar certificates of deposit in The City of New York
selected by the Calculation Agent for negotiable United States dollar
certificates of deposit of major United States money center banks in the market
for negotiable United States dollar certificates of deposit with a remaining
maturity closest to the Index Maturity in an amount that is representative for a
single transaction in that market at that time; provided, however, that if the
dealers so selected by the Calculation Agent are not quoting as mentioned in
this sentence, the CD Rate determined as of such CD Rate Interest Determination
Date will be the CD Rate in effect on such CD Rate Interest Determination Date.
CMT Rate. If an Interest Rate basis for this Note is specified on the
face hereof as the CMT Rate, the CMT Rate shall be determined as of the
applicable Interest Determination Date (a "CMT Rate Interest Determination
Date") as the rate displayed on the Designated CMT Telerate Page (as defined
below) under the caption ". . . Treasury Constant Maturities...Federal Reserve
Board Release H.15....Mondays Approximately 3:45 P.M.," under the column for the
Designated CMT Maturity Index (as defined below for (i) if the Designated CMT
Telerate Page is 7051, the rate on the related CMT Rate Interest Determination
Date and (ii) if the Designated CMT Telerate Page is 7052, the weekly or monthly
average, as specified on the face hereof, for the week or month, as applicable,
ended immediately preceding the week or month, as applicable, in which the
related CMT Rate Interest Determination Date occurs. If such rate is no longer
displayed on the relevant page or is not displayed by 3:00 P.M., New York City
time, on the related Calculation Date, then the CMT Rate for such CMT Rate
Interest Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index as published in H.15(519). If such rate is no
longer published or is not published by 3:00 P.M., New York City time, on the
related Calculation Date, the CMT Rate on such CMT Rate Interest Determination
Date will be such treasury constant maturity rate for the Designated CMT
Maturity Index (or other United States Treasury rate for the Designated CMT
Maturity Index) for the CMT Rate Interest Determination Date with respect to
such Interest Reset Date as may then be published by either the Board of
Governors of the Federal Reserve System or the United States Department of the
Treasury that the Calculation Agent determines to be comparable to the rate
formerly displayed on the Designated CMT Telerate Page and published in
H.15(519). If such information is not provided by 3:00 P.M., New York City time,
on the related Calculation Date, then the CMT Rate on the CMT Rate Interest
Determination Date will be calculated by the Calculation Agent and will be a
yield to maturity, based on the arithmetic mean of the secondary market closing
offer side prices as of approximately 3:30 P.M., New York City time, on such CMT
Rate Interest Determination Date reported, according to their written records,
by three leading primary United States government securities dealers (each, a
"Reference Dealer") in The City of New York selected by the Calculation Agent
(from five such Reference Dealers selected by the Calculation Agent after
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for the most recently issued direct noncallable fixed rate obligations
of the United States ("Treasury
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26
Notes") with an original maturity of approximately the Designated CMT Maturity
Index and a remaining term to maturity of not less than such Designated CMT
Maturity Index minus one year. If the Calculation Agent is unable to obtain
three such Treasury Note quotations, the CMT Rate on such CMT Rate Interest
Determination Date will be calculated by the Calculation Agent and will be a
yield to maturity based on the arithmetic mean of the secondary market bid
prices as of approximately 3:30 P.M., New York City time, on such CMT Rate
Interest Determination Date of three Reference Dealers in The City of New York
(from five such Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for Treasury Notes with an original maturity of the number of years
that is the next highest to the Designated CMT Maturity Index and a remaining
term to maturity closest to the Designated CMT Maturity Index and in an amount
of at least U.S. $100 million. If three or four (and not five) of such Reference
Dealers are providing quotes as described above, then the CMT Rate will be based
on the arithmetic mean of the offer prices obtained and neither the highest nor
the lowest of such quotes will be eliminated. If two Treasury Notes with an
original maturity as described in the second preceding sentence have remaining
terms to maturity equally close to the Designated CMT Maturity Index, the
Calculation Agent will obtain from five Reference Dealers quotations for the
Treasury Note with the shorter remaining term to maturity and will use such
quotations to calculate the CMT Rate as set forth above.
"Designated CMT Telerate Page" means the display on the Bridge
Telerate, Inc. (or any successor service) on the page specified on the face
hereof (or any other page as may replace such page on that service (or any
successor service) for the purpose of displaying Treasury Constant Maturities as
reported in H.15(519)). If no such page is specified on the face hereof, the
Designated CMT Telerate Page shall be 7052, for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity
of the United States Treasury securities (either one, two, three, five, seven,
10, 20 or 30 years) specified on the face hereof with respect to which the CMT
Rate will be calculated. If no such maturity is specified on the face hereof,
the Designated CMT Maturity Index shall be two years.
Commercial Paper Rate. If an Interest Rate Basis for this Note is
specified on the face hereof as the Commercial Paper Rate, the Commercial Paper
Rate shall be determined as of the applicable Interest Determination Date (a
"Commercial Paper Rate Interest Determination Date") as the Money Market Yield
(as defined below) on such date of the rate for commercial paper having the
Index Maturity as published in H.15(519) under the heading "Commercial Paper --
Nonfinancial."
In the event that such rate is not published by 3:00 P.M., New York
City time, on the related Calculation Date, then the Commercial Paper Rate on
such Commercial Paper Rate Interest Determination Date will be the Money Market
Yield of the rate for commercial paper having the Index Maturity as published in
H.15 Daily Update or such other recognized electronic source used for the
purpose of displaying such rate under the caption "Commercial Paper --
Nonfinancial." If such rate is not yet published in H.15(519) or H.15 Daily
Update or another recognized electronic source by 3:00 P.M., New York City time,
on the related Calculation Date, then the Commercial Paper Rate on such
Commercial Paper Rate Interest Determination Date will be calculated by the
Calculation Agent and shall be the Money Market Yield of the
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27
arithmetic mean of the offered rates as of 11:00 A.M., New York City time, on
such Commercial Paper Rate Interest Determination Date of three leading dealers
of commercial paper in The City of New York selected by the Calculation Agent
for commercial paper having the Index Maturity placed for a nonfinancial issuer
whose bond rating is "Aa," or the equivalent, from a nationally recognized
statistical rating organization. If fewer than three dealers so selected by the
Calculation Agent are quoting as mentioned in this sentence, the Commercial
Paper Rate determined as of such Commercial Paper Rate Interest Determination
Date will be the Commercial Paper Rate in effect on such Commercial Paper Rate
Interest Determination Date.
"Money Market Yield" means a yield (expressed as a percentage)
calculated in accordance with the following formula:
D x 360
Money Market Yield = --------------------- x 100
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal, and "M" refers to the actual
number of days in the period from the Interest Reset Date to but excluding the
day that numerically corresponds to such Interest Reset Date, or if there is not
a numerically corresponding day, the last day in the calendar month that is the
number of months corresponding to the specified Index Maturity after the month
in which such Interest Reset Date falls.
Eleventh District Cost of Funds Rate. If an Interest Rate Basis for
this Note is specified on the face hereof as the Eleventh District Cost of Funds
Rate, the Eleventh District Cost of Funds Rate shall be determined as of the
applicable Interest Determination Date (an "Eleventh District Cost of Funds Rate
Interest Determination Date") as the rate equal to the monthly weighted average
cost of funds for the calendar month immediately preceding the month in which
such Eleventh District Cost of Funds Rate Interest Determination Date falls, as
set forth under the caption "11th District" on Bridge Telerate, Inc. or any
successor service on Page 7058, or any other page as may replace that page on
such service ("Telerate Page 7058") as of 11:00 A.M., San Francisco time, on
such Eleventh District Cost of Funds Rate Interest Determination Date. If such
rate does not appear on Telerate Page 7058 on such Eleventh District Cost of
Funds Rate Interest Determination Date, then the Eleventh District Cost of Funds
Rate on such Eleventh District Cost of Funds Rate Interest Determination Date
shall be the monthly weighted average cost of funds paid by member institutions
of the Eleventh Federal Home Loan Bank District that was most recently announced
(the "Index") by the FHLB of San Francisco as such cost of funds for the
calendar month immediately preceding such Eleventh District Cost of Funds Rate
Interest Determination Date. If the FHLB of San Francisco fails to announce the
Index on or prior to such Eleventh District Cost of Funds Rate Interest
Determination Date for the calendar month immediately preceding such Eleventh
District Cost of Funds Rate Interest Determination Date, the Eleventh District
Cost of Funds Rate determined as of such Eleventh District Cost of Funds Rate
Interest Determination Date will be the Eleventh District Cost of Funds Rate in
effect on such Eleventh District Cost of Funds Rate Interest Determination Date.
Federal Funds Rate. If an Interest Rate Basis for this Note is
specified on the face hereof as the Federal Funds Rate, the Federal Funds Rate
shall be determined as of the applicable Interest Determination Date (a "Federal
Funds Rate Interest Determination Date") as the rate on such date for United
States dollar federal funds as published in H.15(519) under the heading
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28
"Federal Funds (Effective)," as such rate is displayed on Bridge Telerate, Inc.
or any successor service on page 120, or any other page as may replace that page
on such service ("Telerate Page 120") or, if not published by 3:00 P.M., New
York City time, or does not appear on Telerate Page 120 on the Calculation Date,
the rate on such Federal Funds Rate Interest Determination Date as published in
H.15 Daily Update, or another recognized electronic source used for the purpose
of displaying such rate, under the caption "Federal Funds (Effective)." If such
rate does not appear on Telerate Page 120 or is not yet published in H.15(519),
H.15 Daily Update or another recognized electronic source by 3:00 P.M., New York
City time, on the related Calculation Date, then the Federal Funds Rate on such
Federal Funds Interest Determination Date shall be calculated by the Calculation
Agent and will be the arithmetic mean of the rates as of 9:00 a.m., New York
City time, on the Federal Funds Rate Interest Determination Date, for the last
transaction in overnight federal funds arranged by three leading brokers of
federal funds transactions in The City of New York selected by the Calculation
Agent, prior to 9:00 A.M., New York City time; provided, however, that if the
brokers so selected by the Calculation Agent are not quoting as mentioned in
this sentence, the Federal Funds Rate determined as of such Federal Funds Rate
Interest Determination Date will be the Federal Funds Rate in effect on such
Federal Funds Rate Interest Determination Date.
LIBOR. If an Interest Rate Basis for this Note is specified on the face
hereof as LIBOR, LIBOR shall be determined by the Calculation Agent as of the
applicable Interest Determination Date (a "LIBOR Interest Determination Date")
in accordance with the following provisions:
(i) if (a) "LIBOR Reuters" is specified on the face hereof, the
arithmetic mean of the offered rates (unless the Designated LIBOR Page (as
defined below) by its terms provides only for a single rate, in which case such
single rate will be used) for deposits in the Index Currency having the Index
Maturity, commencing on the applicable Interest Reset Date, that appear (or, if
only a single rate is required as aforesaid, appears) on the Designated LIBOR
Page (as defined below) as of 11:00 A.M., London time, on such LIBOR Interest
Determination Date, or (b) "LIBOR Telerate" is specified on the face hereof, or
if neither "LIBOR Reuters" nor "LIBOR Telerate" is specified on the face hereof
as the method for calculating LIBOR, the rate for deposits in the Index Currency
having the Index Maturity, commencing on such Interest Reset Date, that appears
on the Designated LIBOR Page as of 11:00 A.M., London time, on such LIBOR
Interest Determination Date. If fewer than two such offered rates appear, or if
no such rate appears, as applicable, LIBOR on such LIBOR Interest Determination
Date shall be determined in accordance with the provisions described in clause
(ii) below.
(ii) With respect to a LIBOR Interest Determination Date on which fewer
than two offered rates appear, or no rate appears, as the case may be, on the
Designated LIBOR Page as specified in clause (i) above, the Calculation Agent
shall request the principal London offices of each of four major reference banks
in the London interbank market, as selected by the Calculation Agent, to provide
the Calculation Agent with its offered quotation for deposits in the Index
Currency for the period of the Index Maturity, commencing on the applicable
Interest Reset Date, to prime banks in the London interbank market at
approximately 11:00 A.M., London time, on such LIBOR Interest Determination Date
and in a principal amount that is representative for a single transaction in
such Index Currency in such market at such time. If at least two such quotations
are so provided, then LIBOR on such LIBOR Interest Determination Date will be
the arithmetic mean of such quotations. If fewer than two such quotations are so
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29
provided, then LIBOR on such LIBOR Interest Determination Date will be the
arithmetic mean of the rates quoted at approximately 11: 00 A.M., in the
applicable Principal Financial Center, on such LIBOR Interest Determination Date
by three major banks in such Principal Financial Center selected by the
Calculation Agent for loans in the Index Currency to leading European banks,
having the Index Maturity and in a principal amount that is representative for a
single transaction in such Index Currency in such market at such time; provided,
however, that if the banks so selected by the Calculation Agent are not quoting
as mentioned in this sentence, LIBOR determined as of such LIBOR Interest
Determination Date shall be LIBOR in effect on such LIBOR Interest Determination
Date.
"Index Currency" means the currency or composite currency specified on
the face hereof as to which LIBOR shall be calculated.
If no such currency or composite currency is specified on the face hereof, the
Index Currency shall be United States dollars.
"Designated LIBOR Page" means (a) if "LIBOR Reuters" is specified on
the face hereof, the display on the Reuter Monitor Money Rates Service (or any
successor service) on the page specified on the face hereof (or any other page
as may replace such page on such service (or any successor service)), for the
purpose of displaying the London interbank rates of major banks for the Index
Currency, or (b) if "LIBOR Telerate" is specified on the face hereof or neither
"LIBOR Reuters" nor "LIBOR Telerate" is specified on the face hereof as the
method for calculating LIBOR, the display on the Bridge Telerate, Inc. (or any
successor service) on the page specified on the face hereof (or any other page
as may replace such page on such service (or any successor service)), for the
purpose of displaying the London interbank rates of major banks for the
applicable Index Currency.
Prime Rate. If an Interest Rate Basis for this Note is specified on the
face hereto as the Prime Rate, the Prime Rate shall be determined as of the
applicable Interest Determination Date (a "Prime Rate Interest Determination
Date") as the rate on such date as such rate is published in H.15(519) under the
heading "Bank Prime Loan." If such rate is not published prior to 3:00 P.M., New
York City time, on the related Calculation Date, then the Prime Rate shall be
the rate on such Prime Rate Interest Determination Date as published in H.15
Daily Update, or such other recognized electronic source used for the purpose of
displaying such rate, under the caption "Bank Prime Loan." If such rate is not
yet published in H.15(519), H.15 Daily Update or another recognized electronic
source by 3:00 p.m., New York City time, on the related Calculation Date, then
the Prime Rate shall be the arithmetic mean of the rates of interest publicly
announced by each bank that appears on the Reuters Screen USPRIME1 Page (as
defined below) as such bank's prime rate or base lending rate as in effect for
such Prime Rate Interest Determination Date. If fewer than four such rates
appear on the Reuters Screen USPRIME1 Page for such Prime Rate Interest
Determination Date, then the Prime Rate shall be the arithmetic mean of the
prime rates quoted on the basis of the actual number of days in the year divided
by a 360-day year as of the close of business on such Prime Rate Interest
Determination Date by four major banks in The City of New York selected by the
Calculation Agent. If fewer than four such quotations are so provided, the Prime
Rate shall be the Prime Rate in effect on such Prime Rate Interest Determination
Date.
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"Reuters Screen USPRIME1 Page" means the display designated as page
"USPRIME1" on the Reuters Monitor Money Rates Service (or any successor service)
(or such other page as may replace the USPRIME1 page on such service (or any
successor service) for the purpose of displaying prime rates or base lending
rates of major United States banks).
Treasury Rate. If an Interest Rate Basis for this Note is specified on
the face hereof as the Treasury Rate, the Treasury Rate shall be determined as
of the applicable Interest Determination Date (a "Treasury Rate Interest
Determination Date") as the rate from the auction held on such Treasury Rate
Interest Determination Date (the "Auction") of direct obligations of the United
States ("Treasury Bills") having the Index Maturity under the caption
"INVESTMENT RATE" on the display on the Bridge Telerate, Inc. or any successor
service on page 56, or any other page as may replace that page on such service
("Telerate Page 56") or page 57, or any other page as may replace that page on
such service ("Telerate Page 57"). If such rate is not published by 3:00 P.M.,
New York City time, on the related Calculation Date, the Treasury Rate will be
the Bond Equivalent Yield of the rate for such Treasury Bills as published in
H.15 Daily Update, or another recognized electronic source used for the purpose
of displaying such rate, under the caption "U.S. Government Securities/Treasury
Bills/Auction High." In the event that the results of the Auction of Treasury
Bills having the Index Maturity are not reported as provided above by 3:00 P.M.,
New York City time, on such Calculation Date, or if no such Auction is held,
then the Treasury Rate shall be the Bond Equivalent Yield of the Auction rate of
such Treasury Bills as announced by the United States Department of the
Treasury.
If the Auction rate of Treasury Bills having the Index Maturity
specified on the face hereof is not so announced by the United States Department
of the Treasury, or if no such Auction is held, then the Treasury Rate will be
the Bond Equivalent Yield of the rate on such Treasury Rate Interest
Determination Date of Treasury Bills having the Index Maturity specified on the
face hereof as published in H.15(519) under the caption "U.S. Government
Securities/Treasury Bills/Secondary Market" or, if not yet published by 3:00
p.m., New York City time, on the Calculation Date, the rate on such Treasury
Rate Interest Determination Date of such Treasury Bills as published in H.15
Daily Update, or another recognized electronic source used for the purpose of
displaying such rate, under the caption "U.S. Government Securities/Treasury
Bills/Secondary Market."
If such rate is not yet published in H.15(519), H.15 Daily Update or
another recognized electronic source, then the Treasury Rate will be calculated
by the Calculation Agent and will be the Bond Equivalent Yield of the arithmetic
mean of the secondary market bid rates, as of approximately 3:30 P.M., New York
City time, on such Treasury Rate Interest Determination Date, of three primary
United States government securities dealers, selected by the Calculation Agent,
for the issue of Treasury Bills with a remaining maturity closest to the Index
Maturity specified on the face hereof; provided, however, that if the dealers so
selected by the Calculation Agent are not quoting as mentioned in this sentence,
the Treasury Rate determined as of such Treasury Rate Interest Determination
Date will be the Treasury Rate in effect on such Treasury Rate Interest
Determination Date.
"Bond Equivalent Yield" means a yield, expressed as a percentage,
calculated in accordance with the following formula:
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Bond Equivalent Yield = D x N x 100
---------------------------------------------
360 - (D X M)
where "D" refers to the applicable per annum rate for Treasury Bills quoted on a
bank discount basis, "N" refers to 365 or 366, as the case may be, and "M"
refers to the actual number of days in the applicable Interest Reset Period.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, in each case as specified on the face hereof. The
interest rate on this Note will in no event be higher than the maximum rate
permitted by New York law, as the same may be modified by United States law of
general application.
The "Calculation Date", if applicable, pertaining to any Interest
Determination Date shall be the earlier of (i) the tenth calendar day after such
Interest Determination Date or, if such day is not a Business Day, the next
succeeding Business Day or (ii) the Business Day immediately preceding the
applicable Interest Payment Date or the Maturity Date, as the case may be. At
the request of the Holder hereof, the Calculation Agent will provide to the
Holder hereof the interest rate hereon then in effect and, if determined, the
interest rate that will become effective as a result of a determination made for
the next succeeding Interest Reset Date.
Accrued interest hereon shall be an amount calculated by multiplying
the principal amount hereof by an accrued interest factor. Such accrued interest
factor shall be computed by adding the interest factor calculated for each day
in the applicable Interest Period. Unless otherwise specified as the Day Count
Convention on the face hereof, the interest factor for each such date shall be
computed by dividing the interest rate applicable to such day by 360 if the CD
Rate, the Commercial Paper Rate, the Eleventh District Cost of Funds Rate, the
Federal Funds Rate, LIBOR or the Prime Rate is an applicable Interest Rate Basis
or by the actual number of days in the year if the CMT Rate or the Treasury Rate
is an applicable Interest Rate Basis. Unless otherwise specified as the Day
Count Convention on the face hereof, the interest factor for this Note, if the
interest rate is calculated with reference to two or more Interest Rate Bases,
shall be calculated in each period in the same manner as if only the Applicable
Interest Rate Basis specified on the face hereof applied. All percentages
resulting from any calculation on this Note shall be rounded to the nearest one
hundred-thousandth of a percentage point, with five one-millionths of a
percentage point rounded upwards (e.g., 5.876545% (or .05876545) would be
rounded to 5.87655% (or .0587655)), and all amounts used in or resulting from
such calculation on this Note shall be rounded, in the case of United States
dollars, to the nearest cent or, in the case of a Specified Currency other than
United States dollars or a composite currency, to the nearest unit (with
one-half cent or unit being rounded upwards).
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Notes or (ii) certain covenants and Events of Default with
respect to the Notes, in each case upon compliance with certain conditions set
forth therein, which provisions apply to the Notes.
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32
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Partnership and the rights of the holders of the Securities at any time by the
Partnership and the Trustee with the consent of the holders of not less than a
majority of the aggregate principal amount of all Securities at the time
outstanding and affected thereby. The Indenture also contains provisions
permitting the holders of not less than a majority of the aggregate principal
amount of the outstanding Securities of any series, on behalf of the holders of
all such Securities, to waive compliance by the Partnership with certain
provisions of the Indenture. Furthermore, provisions in the Indenture permit the
holders of not less than a majority of the aggregate principal amount of the
outstanding Securities of any series, in certain instances, to waive, on behalf
of all of the holders of Securities of such series, certain past defaults under
the Indenture and their consequences. Any such consent or waiver by the holder
of this Note shall be conclusive and binding upon such holder and upon all
future holders of this Note and other Notes issued upon the registration of
transfer hereof or in exchange hereof or in lieu hereof, whether or not notation
of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Partnership, which
is absolute and unconditional, to pay principal, premium, if any, and interest
in respect of this Note at the times, places and rate or formula, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, the transfer of this Note is registrable in the Security
Register of the Partnership upon surrender of this Note for registration of
transfer at the office or agency of the Partnership in any place where the
principal hereof and any premium or interest hereon are payable, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Partnership and the Security Registrar, duly executed by, the holder hereof
or by his attorney and authorized in writing, and thereupon one or more new
Notes, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, this Note is exchangeable for a like aggregate principal
amount of Notes of different authorized denominations but otherwise having the
same terms and conditions, as requested by the holder hereof surrendering the
same.
No service charge shall be made for any such registration of transfer
or exchange, but the Partnership may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Partnership, the Trustee and any agent of the Partnership or the Trustee may
treat the holder in whose name this Note is registered as the owner thereof for
all purposes, whether or not this Note be overdue, and neither the Partnership,
the Trustee nor any such agent shall be affected by notice to the contrary.
This Note and all documents, agreements, understandings and
arrangements relating to any transaction contemplated hereby or thereby have
been executed or entered into by the undersigned in his/her capacity as an
officer of the sole general partner of the Partnership which
20
33
has been formed as a Delaware limited partnership, and not individually, and
neither the general partner, officers, employees or limited partners of the
Partnership shall be bound or have any personal liability hereunder or
thereunder. The holder of this Note by accepting this Note waives and releases
all such liability. This waiver and release are part of the consideration for
the issue of this Note. Each party hereto shall look solely to the assets of the
Partnership for satisfaction of any liability of the Partnership in respect of
this Note and all documents, agreements, understandings and arrangements
relating to any transaction contemplated hereby or thereby and will not seek
recourse or commence any action against any of the general partner, officers,
employees or limited partners of the Partnership or any of their personal assets
for the performance or payment of any obligation hereunder or thereunder. The
foregoing shall also apply to any future documents, agreements, understandings,
arrangements and transactions between the parties hereto.
The Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of New York without regard to principles
of conflicts of laws.
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34
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants
in common
UNIF GIFT MIN ACT - __________ Custodian __________
(Cust) (Minor)
Under Uniform Gifts to Minors Act____________________
(State)
Additional abbreviations may also be used though not in the above list.
22
35
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
(Please print or typewrite name and address including postal zip code of
assignee)
this Note and all rights thereunder hereby irrevocably constituting and
appointing -
Attorney to transfer this Note on the books of the Trustee, with full power
of substitution in the premises.
Dated: __________________
NOTICE: The signature(s) on this Assignment must correspond with the
name(s) as written upon the face of this Note in every particular, without
alteration or enlargement or any change whatsoever.
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36
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Partnership to repay this Note (or portion hereof specified below) pursuant to
its terms at a price equal to 100% of the principal amount to be repaid,
together with unpaid interest accrued hereon to the Repayment Date, to the
undersigned, at
- ---------------------------------------------------------------
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee or the Designated Agents must
receive at its corporate trust office in the Borough of Manhattan, The City of
New York, this Note with this "Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of U.S. $1,000 (or, if the
Specified Currency is other than United States dollars, the minimum Authorized
Denomination specified on the face hereof)) which the holder elects to have
repaid and specify the denomination or denominations (which shall be an
Authorized Denomination) of the Notes to be issued to the holder for the portion
of this Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid).
Principal Amount
to be Repaid: $_______________________
Date:_______________ Notice: The signature(s) on this Option to
Elect Repayment must correspond with the
name(s) as written upon the face of this
Note in every particular, without alteration
or enlargement or any change whatsoever.
24
37
EXHIBIT B
[FACE OF NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (THE "DEPOSITARY") (55 WATER STREET, NEW YORK, NEW YORK) TO THE
ISSUER HEREOF OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY AND ANY PAYMENT
IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.(1)
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.(2)
REGISTERED PRINCIPAL AMOUNT:
No. FXR-
CUSIP:
SUMMIT PROPERTIES PARTNERSHIP, L.P.
MEDIUM-TERM NOTE
(Fixed Rate)
ORIGINAL ISSUE DATE: INTEREST RATE: % STATED MATURITY
INTEREST PAYMENT DEFAULT RATE: % DATE:
DATE(S) _____ and _____
Other:
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: % PERCENTAGE
REDUCTION: %
- --------------------------
(1) This paragraph applies to global Notes only.
(2) This paragraph applies to global Notes only.
38
OPTIONAL REPAYMENT CHECK IF AN ORIGINAL
DATE(S) ISSUE DISCOUNT NOTE
Issue Price: %
REPAYMENT PRICE: %
SPECIFIED CURRENCY: AUTHORIZED EXCHANGE RATE
[ ] United States dollars DENOMINATION: AGENT:
[ ] Other: [ ] $1,000 and integral
multiples thereof
[ ] Other:
EXCHANGE RATE: ADDENDUM ATTACHED: OTHER/ADDITIONAL
U.S. $1.00 = _________ [ ] Yes PROVISIONS:
[ ] No
Summit Properties Partnership, L.P., a limited partnership duly
organized and existing under the laws of Delaware (hereinafter referred to as
the "Partnership," which term includes any successor entity under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
_____________________, or registered assigns, the principal sum of
________________, on the Stated Maturity Date specified above (or any Redemption
Date or Repayment Date, each as defined on the reverse hereof) (each such Stated
Maturity Date, Redemption Date or Repayment Date being hereinafter referred to
as the "Maturity Date" with respect to the principal repayable on such date) and
to pay interest thereon, at the Interest Rate per annum specified above, until
the principal hereof is paid or duly made available for payment, and (to the
extent that the payment of such interest shall be legally enforceable) at the
Default Rate per annum specified above on any overdue principal, premium and/or
interest, including any overdue sinking fund or redemption payment. The
Partnership will pay interest in arrears on each Interest Payment Date, if any,
specified above (each, an "Interest Payment Date"), commencing with the first
Interest Payment Date next succeeding the Original Issue Date specified above,
and on the Maturity Date; provided, however, that if the Original Issue Date
occurs between a Record Date (as defined below) and the next succeeding Interest
Payment Date, interest payments will commence on the second Interest Payment
Date next succeeding the Original Issue Date to the holder of this Note on the
Record Date with respect to such second Interest Payment Date. Interest on this
Note will be computed on the basis of a 360-day year of twelve 30-day months.
Interest on this Note will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for (or from, and including, the Original Issue Date if no interest has been
paid or duly provided for) to, but excluding, the applicable Interest Payment
Date or the Maturity Date, as the case may be (each, an "Interest Period"). The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, subject to certain exceptions described herein, be paid to
the person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the fifteenth calendar day (whether or
not a Business Day, as defined below) immediately preceding such Interest
Payment Date (the "Record Date"); provided, however, that interest payable on
the Maturity Date will be payable to the person to whom the principal hereof and
premium, if any,
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39
hereon shall be payable. Any such interest not so punctually paid or duly
provided for ("Defaulted Interest") will forthwith cease to be payable to the
holder on any Record Date, and shall be paid to the person in whose name this
Note is registered at the close of business on a special record date (the
"Special Record Date") for the payment of such Defaulted Interest to be fixed by
the Trustee hereinafter referred to, notice whereof shall be given to the holder
of this Note by the Trustee not more than 15 days and not less than 10 days
prior to such Special Record Date or may be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which this Note may be listed, and upon such notice as may be required by such
exchange, all as more fully provided for in the Indenture.
Payment of principal, premium, if any, and interest in respect of this
Note due on the Maturity Date or any prior date on which the principal or an
installment of principal of this Note becomes due and payable, whether by the
declaration of acceleration or otherwise, will be made in immediately available
funds upon presentation and surrender of this Note (and, with respect to any
applicable repayment of this Note, upon presentation and surrender of this Note
and a duly completed election form as contemplated on the reverse hereof) at the
office or agency maintained by the Partnership for that purpose in the Borough
of Manhattan, The City of New York, currently the office of the Trustee or the
Designated Agent; provided, however, that if the Specified Currency specified
above is other than United States dollars and such payment is to be made in the
Specified Currency in accordance with the provisions set forth below, such
payment may be made by wire transfer of immediately available funds to an
account with a bank designated by the holder hereof at least 15 calendar days
prior to the Maturity Date, provided that such bank has appropriate facilities
therefor and that this Note (and, if applicable, a duly completed repayment
election form) is presented and surrendered at the aforementioned office or
agency maintained by the Partnership in time for the Trustee or the Designated
Agent to make such payment in such funds in accordance with its normal
procedures. Payment of interest due on any Interest Payment Date other than the
Maturity Date will be made at the aforementioned office or agency maintained by
the Partnership or, at the option of the Partnership, by check mailed to the
address of the person entitled thereto as such address shall appear in the
Security Register maintained by the Trustee or the Designated Agent; provided,
however, that a holder of U.S. $10,000,000 (or, if the Specified Currency is
other than United States dollars, the equivalent thereof in the Specified
Currency) or more in aggregate principal amount of Notes (whether having
identical or different terms and provisions) will be entitled to receive
interest payments on any Interest Payment Date other than the Maturity Date by
wire transfer of immediately available funds if appropriate wire transfer
instructions have been received in writing by the Trustee or Designated Agent
not less than 15 calendar days prior to such Interest Payment Date. Any such
wire transfer instructions received by the Trustee or the Designated Agent shall
remain in effect until revoked by such holder.
If any Interest Payment Date or the Maturity Date falls on a day that
is not a Business Day, the required payment of principal, premium, if any,
and/or interest shall be made on the next succeeding Business Day with the same
force and effect as if made on the date such payment was due, and no interest
shall accrue with respect to such payment for the period from and after such
Interest Payment Date or the Maturity Date, as the case may be, to the date of
such payment on the next succeeding Business Day.
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40
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking institutions
are authorized or required by law, regulation or executive order to close in The
City of New York, or Charlotte, North Carolina; provided, however, that if the
Specified Currency is other than United States dollars, such day is also not a
day on which banking institutions are authorized or required by law, regulation
or executive order to close in the Principal Financial Center (as defined below)
of the country issuing the Specified Currency (or, if the Specified Currency is
European Currency Units ("ECU"), such day is not a day that appears as an ECU
no-settlement day on the display designated as "ISDE" on the Reuter Monitor
Money Rates Service (or a day so designated by the ECU Banking Association), or,
if ECU non-settlement days do not appear on that page (and are not so
designated), is not a day on which payments in ECU cannot be settled in the
international interbank market). Principal Financial Center means the capital
city of the country issuing the Specified Currency, except that with respect to
United States dollars, Australian dollars, Deutsche marks, Dutch guilders,
Italian lire, Portuguese escudos, South African rand and Swiss francs, the
Principal Financial Center shall be The City of New York, Sydney, Toronto,
Frankfurt, Amsterdam, Milan, London, Johannesburg and Zurich, respectively.
The Partnership is obligated to make payments of principal, premium, if
any, and interest in respect of this Note in the Specified Currency (or, if the
Specified Currency is not at the time of such payment legal tender for the
payment of public and private debts, in such other coin or currency of the
country which issued the Specified Currency as at the time of such payment is
legal tender for the payment of such debts). If the Specified Currency is other
than United States dollars, except as provided below, any such amounts so
payable by the Partnership will be converted by the Exchange Rate Agent
specified above into United States dollars for payment to the holder of this
Note.
If the Specified Currency is other than United States dollars, the
holder of this Note may elect to receive such amounts in such Specified
Currency. If the holder of this Note shall not have duly made an election to
receive all or a specified portion of any payment of principal, premium, if any,
and/or interest in respect of this Note in the Specified Currency, any United
States dollar amount to be received by the holder of this Note will be based on
the highest bid quotation in The City of New York received by the Exchange Rate
Agent at approximately 11:00 A.M., The City of New York time, on the second
Business Day preceding the applicable payment date from three recognized foreign
exchange dealers (one of whom may be the Exchange Rate Agent) selected by the
Exchange Rate Agent and approved by the Partnership for the purchase by the
quoting dealer of the Specified Currency for United States dollars for
settlement on such payment date in the aggregate amount of such Specified
Currency payable to all holders of Foreign Currency Notes scheduled to receive
United States dollar payments and at which the applicable dealer commits to
execute a contract. All currency exchange costs will be borne by the holder of
this Note by deductions from such payments. If three such bid quotations are not
available, payments on this Note will be made in the Specified Currency.
If the Specified Currency is other than United States dollars, the
holder of this Note may elect to receive all or a specified portion of any
payment of principal, premium, if any, and/or interest in respect of this Note
in the Specified Currency by submitting a written request for such payment to
the Trustee or the Designated Agent at its corporate trust office in The City of
New York on or prior to the applicable Record Date or at least 15 calendar days
prior to the Maturity
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41
Date, as the case may be. Such written request may be mailed or hand delivered
or sent by cable, telex or other form of facsimile transmission. The holder of
this Note may elect to receive all or a specified portion of all future payments
in the Specified Currency in respect of such principal, premium, if any, and/or
interest and need not file a separate election for each payment. Such election
will remain in effect until revoked by written notice to the Trustee or the
Designated Agent, but written notice of any such revocation must be received by
the Trustee or the Designated Agent on or prior to the applicable Record Date or
at least 15 calendar days prior to the Maturity Date, as the case may be.
If the Specified Currency is other than United States dollars or a
composite currency and the holder of this Note shall have duly made an election
to receive all or a specified portion of any payment of principal, premium, if
any, and/or interest in respect of this Note in the Specified Currency and if
the Specified Currency is not available due to the imposition of exchange
controls or other circumstances beyond the reasonable control of the
Partnership, the Partnership will be entitled to satisfy its obligations to the
holder of this Note by making such payment in United States dollars on the basis
of the Market Exchange Rate (as defined below) on the second Business Day prior
to such payment date or, if such Market Exchange Rate is not then available, on
the basis of the most recently available Market Exchange Rate or as otherwise
specified on the face hereof. The "Market Exchange Rate" for the Specified
Currency means the noon dollar buying rate in The City of New York for cable
transfers for such Specified Currency as certified for customs purposes by (or
if not so certified, as otherwise determined by) the Federal Reserve Bank of New
York. Any payment made under such circumstances in United States dollars will
not constitute an Event of Default (as defined in the Indenture) with respect to
this Note.
If the Specified Currency is a composite currency and the holder of
this Note shall have duly made an election to receive all or a specified portion
of any payment of principal, premium, if any, and/or interest in respect of this
Note in the Specified Currency and if such composite currency is unavailable due
to the imposition of exchange controls or other circumstances beyond the
reasonable control of the Partnership, then the Partnership will be entitled to
satisfy its obligations to the holder of this Note by making such payment in
United States dollars. The amount of each payment in United States dollars shall
be computed by the Exchange Rate Agent on the basis of the equivalent of the
composite currency in United States dollars. The component currencies of the
composite currency for this purpose (collectively, the "Component Currencies"
and each, a "Component Currency") shall be the currency amounts that were
components of the composite currency as of the last day on which the composite
currency was used. The equivalent of the composite currency in United States
dollars shall be calculated by aggregating the United States dollar equivalents
of the Component Currencies. The United States dollar equivalent of each of the
Component Currencies shall be determined by the Exchange Rate Agent on the basis
of the most recently available Market Exchange Rate for each such Component
Currency, or as otherwise specified on the face hereof.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided
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42
into two or more currencies, the amount of the original Component Currency shall
be replaced by the amounts of such two or more currencies, the sum of which
shall be equal to the amount of the original Component Currency.
All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the holder of this Note.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof and, if so specified above on the face hereof, in
the Addendum hereto, which further provisions shall have the same force and
effect as if set forth on the face hereof.
Notwithstanding any provisions to the contrary contained herein, if the
face of this Note specifies that an Addendum is attached hereto or that
"Other/Additional Provisions" apply to this Note, this Note shall be subject to
the terms set forth in such Addendum or such "Other/Additional Provisions."
Unless the Certificate of Authentication hereon has been executed by
the Trustee or its Authenticating Agent by manual signature, this Note shall not
be entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
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43
IN WITNESS WHEREOF, Summit Properties Partnership, L.P. has caused this
Note to be duly executed under its seal.
SUMMIT PROPERTIES PARTNERSHIP, L.P.
By: Summit Properties Inc.,
its General Partner
By:
-------------------------------------
Steven R. LeBlanc
President and Chief Operating Officer
Dated:
(SEAL)
Attest:
- ---------------------------
Michael G. Malone Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
FIRST UNION NATIONAL BANK,
as Trustee
By:
-----------------------
Authorized Signatory
Dated:
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44
[REVERSE OF NOTE]
SUMMIT PROPERTIES PARTNERSHIP, L.P.
MEDIUM-TERM NOTE
(Fixed Rate)
This Note is one of a duly authorized series of Securities (the
"Securities") of the Partnership issued and to be issued under an Indenture,
dated as of August 7, 1997 as supplemented by Supplemental Indenture No. 4 dated
as of April 20, 2000, as further amended, modified or supplemented from time to
time (the "Indenture"), between the Partnership and First Union National Bank,
as Trustee (the "Trustee," which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Partnership, the Trustee and the holders
of the Securities, and of the terms upon which the Securities are, and are to
be, authenticated and delivered. This Note is one of the series of Securities
designated as "Medium-Term Notes Due Nine Months or More from Date of Issue"
(the "Notes"). All terms used but not defined in this Note or in an Addendum
hereto shall have the meanings assigned to such terms in the Indenture or on the
face hereof, as the case may be.
This Note is issuable only in registered form without coupons in
minimum denominations of U.S. $1,000 and integral multiples thereof or the
minimum Authorized Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless otherwise
specified on the face hereof in accordance with the provisions of the following
two paragraphs, will not be redeemable or repayable prior to the Stated Maturity
Date.
This Note will be subject to redemption at the option of the
Partnership on any date on and after the Initial Redemption Date, if any,
specified on the face hereof, in whole or from time to time in part in
increments of U.S. $1,000 or the minimum Authorized Denomination (provided that
any remaining principal amount hereof shall be at least U.S. $1,000 or such
minimum Authorized Denomination), at the Redemption Price (as defined below),
together with unpaid interest accrued thereon to the date fixed for redemption
(each, a "Redemption Date"), on notice given not more than 60 nor less than 30
calendar days prior to the Redemption Date and in accordance with the provisions
of the Indenture. The "Redemption Price" shall initially be the Initial
Redemption Percentage specified on the face hereof multiplied by the unpaid
principal amount of this Note to be redeemed. The Initial Redemption Percentage
shall decline at each anniversary of the Initial Redemption Date by the Annual
Redemption Percentage Reduction, if any, specified on the face hereof until the
Redemption Price is 100% of the unpaid principal amount to be redeemed. In the
event of redemption of this Note in part only, a new Note of like tenor for the
unredeemed portion hereof and otherwise having the same terms as this Note shall
be issued in the name of the holder hereof upon the presentation and surrender
hereof.
This Note will be subject to repayment by the Partnership at the option
of the holder hereof on the Optional Repayment Date(s), if any, specified on the
face hereof, in whole or in part in increments of U.S. $1,000 or the minimum
Authorized Denomination (provided that any remaining principal amount hereof
shall be at least U.S. $1,000 or such minimum Authorized
8
45
Denomination), at a repayment price equal to 100% of the unpaid principal amount
to be repaid, together with unpaid interest accrued thereon to the date fixed
for repayment (each, a "Repayment Date"). For this Note to be repaid, the
Trustee or the Designated Agent must receive at its office in the Borough of
Manhattan, The City of New York, referred to on the face hereof, at least 30
days but not more than 60 days prior to the Repayment Date (i) this Note and the
form hereon entitled "Option to Elect Repayment" duly completed or (ii) a
telegram, telex, facsimile transmission, or a letter from a member of a national
securities exchange or the National Association of Securities Dealers, Inc. or a
commercial bank or trust company in the United States setting forth the name of
the holder hereof, the principal amount of this Note, the principal amount of
this Note to be repaid, the certificate number or a description of the tenor and
terms of this Note, a statement that the option to elect repayment is being
exercised thereby, and a guarantee that this Note, together with the form hereon
entitled "Option to Elect Repayment" duly completed, will be received by the
Trustee or the Designated Agent not later than the fifth Business Day after the
date of such telegram, telex, facsimile transmission or letter, provided that
such telegram, telex, facsimile transmission or letter shall only be effective
if this Note and duly completed form are received by the Trustee or the
Designated Agent by such fifth Business Day. Exercise of such repayment option
by the holder hereof will be irrevocable. In the event of repayment of this Note
in part only, a new Note of like tenor for the unrepaid portion hereof and
otherwise having the same terms as this Note shall be issued in the name of the
holder hereof upon the presentation and surrender hereof.
If this Note is an Original Issue Discount Note as specified on the
face hereof, the amount payable to the holder of this Note in the event of
redemption, repayment or acceleration of maturity of this Note will be equal to
the sum of (i) the Issue Price specified on the face hereof (increased by any
accruals of the Discount, as defined below) and, in the event of any redemption
of this Note (if applicable), multiplied by the Initial Redemption Percentage
(as adjusted by the Annual Redemption Percentage Reduction, if applicable) and
(ii) any unpaid interest on this Note accrued from the Original Issue Date to
the Redemption Date, Repayment Date or date of acceleration of maturity, as the
case may be. The difference between the Issue Price and 100 % of the principal
amount of this Note is referred to herein as the "Discount."
For purposes of determining the amount of Discount that has accrued as
of any Redemption Date, Repayment Date or date of acceleration of maturity of
this Note, such Discount will be accrued using a constant yield method. The
constant yield will be calculated using a 30-day month, 360-day year convention,
a compounding period that, except for the Initial Period (as defined below),
corresponds to the shortest period between Interest Payment Dates (with ratable
accruals within a compounding period), a coupon rate equal to the initial coupon
rate applicable to this Note and an assumption that the maturity of this Note
will not be accelerated. If the period from the Original Issue Date to the
initial Interest Payment Date (the "Initial Period") is shorter than the
compounding period for this Note, a proportionate amount of the yield for an
entire compounding period will be accrued. If the Initial Period is longer than
the compounding period, then such period will be divided into a regular
compounding period and a short period, with the short period being treated as
provided in the preceding sentence.
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
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46
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Notes or (ii) certain covenants and Events of Default with
respect to the Notes, in each case upon compliance with certain conditions set
forth therein, which provisions apply to the Notes.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Partnership and the rights of the holders of the Securities at any time by the
Partnership and the Trustee with the consent of the holders of not less than a
majority of the aggregate principal amount of all Securities at the time
outstanding and affected thereby. The Indenture also contains provisions
permitting the holders of not less than a majority of the aggregate principal
amount of the outstanding Securities of any series, on behalf of the holders of
all such Securities, to waive compliance by the Partnership with certain
provisions of the Indenture. Furthermore, provisions in the Indenture permit the
holders of not less than a majority of the aggregate principal amount of the
outstanding Securities of any series, in certain instances, to waive, on behalf
of all of the holders of Securities of such series, certain past defaults under
the Indenture and their consequences. Any such consent or waiver by the holder
of this Note shall be conclusive and binding upon such holder and upon all
future holders of this Note and other Notes issued upon the registration of
transfer hereof or in exchange hereof or in lieu hereof, whether or not notation
of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Partnership, which
is absolute and unconditional, to pay principal, premium, if any, and interest
in respect of this Note at the times, places and rate or formula, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, the transfer of this Note is registrable in the Security
Register of the Partnership upon surrender of this Note for registration of
transfer at the office or agency of the Partnership in any place where the
principal hereof and any premium or interest hereon are payable, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Partnership and the Security Registrar, duly executed by, the holder hereof
or by his attorney duly authorized in writing, and thereupon one or more new
Notes, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, this Note is exchangeable for a like aggregate principal
amount of Notes of different authorized denominations but otherwise having the
same terms and conditions, as requested by the holder hereof surrendering the
same.
No service charge shall be made for any such registration of transfer
or exchange, but the Partnership may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Partnership, the Trustee and any agent of the Partnership or the Trustee may
treat the holder in whose name this Note is registered as the owner thereof for
all purposes, whether or not this Note be overdue, and neither the Partnership,
the Trustee nor any such agent shall be affected by notice to the contrary.
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47
This Note and all documents, agreements, understandings and
arrangements relating to any transaction contemplated hereby or thereby have
been executed or entered into by the undersigned in his/her capacity as an
officer of the sole general partner of the Partnership which has been formed as
a Delaware limited partnership, and not individually, and neither the general
partner, officers, employees or limited partners of the Partnership shall be
bound or have any personal liability hereunder or thereunder. The holder of this
Note by accepting this Note waives and releases all such liability. This waiver
and release are part of the consideration for the issue of this Note. Each party
hereto shall look solely to the assets of the Partnership for satisfaction of
any liability of the Partnership in respect of this Note and all documents,
agreements, understandings and arrangements relating to any transaction
contemplated hereby or thereby and will not seek recourse or commence any action
against any of the general partners, officers, employees or limited partners of
the Partnership or any of their personal assets for the performance or payment
of any obligation hereunder or thereunder. The foregoing shall also apply to any
future documents, agreements, understandings, arrangements and transactions
between the parties hereto.
The Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of New York without regard to its
principles of conflicts of laws.
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48
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants
in common
UNIF GIFT MIN ACT-_____________ Custodian ______________
(Cust) (Minor)
Under Uniform Gifts to Minors Act ____________________________
(State)
Additional abbreviations may also be used though not in the above list.
12
49
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
(Please print or typewrite name and address including postal zip code of
assignee) this Note and all rights thereunder hereby irrevocably constituting
and appointing Attorney to transfer this Note on the books of the Trustee, with
full power of substitution in the premises.
Dated:___________________________
NOTICE: The signature(s) on this Assignment must correspond with the
name(s) as written upon the face of this Note in every particular, without
alteration or enlargement or any change whatsoever.
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50
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Partnership to repay this Note (or portion hereof specified below) pursuant to
its terms at a price equal to 100% of the principal amount to be repaid,
together with unpaid interest accrued hereon to the Repayment Date, to the
undersigned, at
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee or the Designated Agent must
receive at its corporate trust office in the Borough of Manhattan, The City of
New York, this Note with this "Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of U.S. $1,000 (or, if the
Specified Currency is other than United States dollars, the minimum Authorized
Denomination specified on the face hereof)) which the holder elects to have
repaid and specify the denomination or denominations (which shall be an
Authorized Denomination) of the Notes to be issued to the holder for the portion
of this Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid).
Principal Amount
to be Repaid: $
Date: Notice: The signature(s) on this Option to
Elect Repayment must correspond with the
name(s) as written upon the face of this
Note in every particular, without alteration
or enlargement or any change whatsoever.
14