<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
January 30, 1998 (December 3, 1998)
-----------------------------------
Date of Report (Date of Earliest Event Reported)
SPIEKER PROPERTIES, L.P.
------------------------
(Exact Name of Registrant As Specified In Its Charter)
CALIFORNIA
----------
(State or Other Jurisdiction of Incorporation or Organization)
33-98372-01 94-3188774
----------- ----------
(Commission File Number) (IRS Employer Identification No.)
2180 Sand Hill Road
Menlo Park, California 94025
----------------------------
(Address of Principal Executive Offices)(Zip Code)
(650) 854-5600
--------------
(Registrant's Telephone Number, including Area Code)
1
<PAGE> 2
Item 7. Financial Statements, Pro forma Financial Statements and Exhibits.
(c) Exhibits.
The Registrant hereby files the following exhibits to its Registration
Statement on Form S-3 (No. 333-35997), which was declared effective on October
1, 1997:
<TABLE>
<CAPTION>
Exhibit
Number Description
- -------- -----------
<S> <C>
1.1 Pricing Agreement, dated January 22, 1998, in connection with the
offering of $150,000,000 of 6.75% Notes Due January 15, 2008.
1.2 Pricing Agreement, dated January 28, 1998, in connection with the
offering of $125,000,000 of 6.875% Notes Due February 1, 2005.
1.3 Pricing Agreement, dated January 28, 1998, in connection with the
offering of $1,500,000 of 7% Notes Due February 1, 2007.
4.13 Tenth Supplemental Indenture relating to the 7.35% Debentures due
December 1, 2017, including a specimen of such Debenture
4.14 Eleventh Supplemental Indenture relating to the 6.75% Notes Due
January 15, 2008, including a specimen of such Note
4.15 Twelfth Supplemental Indenture relating to the 6.875% Notes
Due February 1, 2005, including a specimen of such Note
4.16 Thirteenth Supplemental Indenture relating to the 7% Notes
Due February 1, 2007, including a specimen of such Note
</TABLE>
2
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunder duly authorized.
Dated: January 30, 1998
SPIEKER PROPERTIES, L.P.
By: Spieker Properties, Inc. as
General Partner
By: /s/ Craig G. Vought
--------------------------------------
Name: Craig G. Vought
Title: Executive Vice President and
Chief Financial Officer
3
<PAGE> 1
EXHIBIT 1.1
PRICING AGREEMENT
January 22, 1998
Goldman, Sachs & Co.,
Merrill Lynch, Pierce, Fenner & Smith
Incorporated,
J.P. Morgan Securities Inc.,
Morgan Stanley & Co. Incorporated,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
Spieker Properties, L.P., a California limited partnership (the "Operating
Partnership"), proposes, subject to the terms and conditions stated herein and
in the Underwriting Agreement, dated September 24, 1997 (the "Underwriting
Agreement"), between the Operating Partnership and Spieker Properties, Inc., a
Maryland corporation (the "Company"), on the one hand and Goldman, Sachs & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, J.P. Morgan Securities Inc.
and Morgan Stanley & Co. Incorporated, on the other hand, to issue and sell to
the Underwriters named in Schedule I hereto (the "Underwriters") the Securities
specified in Schedule II hereto (the "Designated Securities"). Each of the
provisions of the Underwriting Agreement is incorporated herein by reference in
its entirety, and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation or warranty as of
the date of the Underwriting Agreement in relation to the Prospectus (as therein
defined), and also a representation and warranty as of the date of this Pricing
Agreement in relation to the Prospectus as amended or supplemented relating to
the Designated Securities which are the subject of this Pricing Agreement. Each
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. The Representatives designated to
act on behalf of the Representatives and on behalf of each of the Underwriters
of the Designated Securities pursuant to Section 12 of the Underwriting
Agreement and the address of the Representatives referred to in such Section 12
are set forth in Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
<PAGE> 2
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Operating
Partnership agrees to issue and sell to each of the Underwriters, and each of
the Underwriters agrees, severally and not jointly, to purchase from the
Operating Partnership, at the time and place and at the purchase price to the
Underwriters set forth in Schedule II hereto, the principal amount of Designated
Securities set forth opposite the name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign and
return to us six counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company and the Operating Partnership. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is or will be
pursuant to the authority set forth in a form of Agreement among Underwriters,
the form of which shall be submitted to the Operating Partnership for
examination, upon request, but without warranty on the part of the
Representatives as to the authority of the signers thereof.
Very truly yours,
SPIEKER PROPERTIES, L.P.
By: SPIEKER PROPERTIES, INC.
By: /s/ Craig G. Vought
-------------------------------------------
Name: Craig G. Vought
Title: Executive Vice President
and Chief Financial Officer
SPIEKER PROPERTIES, INC.
By: /s/ Craig G. Vought
-------------------------------------------
Name: Craig G. Vought
Title: Executive Vice President
and Chief Financial Officer
Accepted as of the date hereof:
Goldman, Sachs & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
J. P. Morgan Securities Inc.
Morgan Stanley & Co. Incorporated
By: /s/ Goldman, Sachs & Co.
---------------------------------
(Goldman, Sachs & Co.)
2
<PAGE> 3
SCHEDULE I
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT OF
DESIGNATED SECURITIES
UNDERWRITER TO BE PURCHASED
----------- ---------------------
<S> <C>
Goldman, Sachs & Co..................................... $90,000,000
J.P. Morgan Securities Inc.............................. 20,000,000
Merrill Lynch, Pierce, Fenner &
Smith Incorporated...................................... 20,000,000
Morgan Stanley & Co. Incorporated ...................... 20,000,000
------------
Total................................................... $150,000,000
============
</TABLE>
3
<PAGE> 4
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
6.75% Notes due January 15, 2008
AGGREGATE PRINCIPAL AMOUNT:
$150,000,000
INITIAL OFFERING PRICE TO PUBLIC:
99.71% plus accrued interest, if any, from January 27, 1998.
PURCHASE PRICE BY UNDERWRITERS:
99.06% plus accrued interest, if any, from January 27, 1998.
FORM OF DESIGNATED SECURITIES:
Global Form
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Same day funds
TIME OF DELIVERY:
9:30 a.m. (New York City time), January 27, 1998
INDENTURE:
Indenture dated December 6, 1995, among the Operating Partnership, the
Company and State Street Bank and Trust, as Trustee, as supplemented by the
Eleventh Supplemental Indenture with First Trust of California, National
Association as Trustee
MATURITY:
January 15, 2008
INTEREST RATE:
6.75%
4
<PAGE> 5
INTEREST PAYMENT DATES:
January 15 and July 15, beginning July 15, 1998.
REDEMPTION PROVISION:
The Notes may be redeemed at any time at the option of the Operating
Partnership, in whole or from time to time in part, at a redemption price
equal to the sum of (i) the principal amount of the Notes being redeemed
plus accrued interest thereon to the redemption date and (ii) the Make-Whole
Amount, if any, with respect to such Notes.
CLOSING LOCATION:
Sullivan & Cromwell
444 South Flower Street
Los Angeles, California 90071
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Goldman, Sachs & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, J.P. Morgan Securities Inc. and Morgan Stanley & Co.
Incorporated
Address for Notices, etc.:
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
CAPTIONS OF PROSPECTUS:
"Description of Notes"
5
<PAGE> 1
EXHIBIT 1.2
PRICING AGREEMENT
January 28, 1998
Morgan Stanley & Co. Incorporated,
Goldman, Sachs & Co.,
Merrill Lynch, Pierce, Fenner & Smith
Incorporated,
J.P. Morgan Securities Inc.,
c/o Morgan Stanley & Co. Incorporated,
1585 Broadway,
New York, New York 10036
Ladies and Gentlemen:
Spieker Properties, L.P., a California limited partnership (the "Operating
Partnership"), proposes, subject to the terms and conditions stated herein and
in the Underwriting Agreement, dated September 24, 1997 (the "Underwriting
Agreement"), between the Operating Partnership and Spieker Properties, Inc., a
Maryland corporation (the "Company"), on the one hand and Goldman, Sachs & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, J.P. Morgan Securities Inc.
and Morgan Stanley & Co. Incorporated, on the other hand, to issue and sell to
the Underwriters named in Schedule I hereto (the "Underwriters") the Securities
specified in Schedule II hereto (the "Designated Securities"). Each of the
provisions of the Underwriting Agreement is incorporated herein by reference in
its entirety, and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation or warranty as of
the date of the Underwriting Agreement in relation to the Prospectus (as therein
defined), and also a representation and warranty as of the date of this Pricing
Agreement in relation to the Prospectus as amended or supplemented relating to
the Designated Securities which are the subject of this Pricing Agreement. Each
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. The Representatives designated to
act on behalf of the Representatives and on behalf of each of the Underwriters
of the Designated Securities pursuant to Section 12 of the Underwriting
Agreement and the address of the Representatives referred to in such Section 12
are set forth in Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
<PAGE> 2
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Operating
Partnership agrees to issue and sell to each of the Underwriters, and each of
the Underwriters agrees, severally and not jointly, to purchase from the
Operating Partnership, at the time and place and at the purchase price to the
Underwriters set forth in Schedule II hereto, the principal amount of Designated
Securities set forth opposite the name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign and
return to us six counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company and the Operating Partnership. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is or will be
pursuant to the authority set forth in a form of Agreement among Underwriters,
the form of which shall be submitted to the Operating Partnership for
examination, upon request, but without warranty on the part of the
Representatives as to the authority of the signers thereof.
Very truly yours,
SPIEKER PROPERTIES, L.P.
By: SPIEKER PROPERTIES, INC.
By: /s/ Craig G. Vought
-------------------------------------------
Name: Craig G. Vought
Title: Executive Vice President
and Chief Financial Officer
SPIEKER PROPERTIES, INC.
By: /s/ Craig G. Vought
-------------------------------------------
Name: Craig G. Vought
Title: Executive Vice President
and Chief Financial Officer
Accepted as of the date hereof:
Morgan Stanley & Co. Incorporated
Goldman, Sachs & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
J. P. Morgan Securities Inc.
By: /s/ Hal Hendershot III
---------------------------------
2
<PAGE> 3
SCHEDULE I
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT OF
DESIGNATED SECURITIES
UNDERWRITER TO BE PURCHASED
----------------- ---------------------
<S> <C>
Morgan Stanley & Co. Incorporated .......................... $ 75,000,000
Goldman, Sachs & Co......................................... 16,667,000
Merrill Lynch, Pierce, Fenner & 16,667,000
Smith Incorporated..........................................
J.P. Morgan Securities Inc.................................. 16,666,000
------------
Total....................................................... $125,000,000
=============
</TABLE>
3
<PAGE> 4
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
6.875% Notes Due February 1, 2005
AGGREGATE PRINCIPAL AMOUNT:
$125,000,000
INITIAL OFFERING PRICE TO PUBLIC:
100% plus accrued interest, if any, from February 2, 1998.
PURCHASE PRICE BY UNDERWRITERS:
99.375% plus accrued interest, if any, from February 2, 1998.
FORM OF DESIGNATED SECURITIES:
Global Form
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Same day funds
TIME OF DELIVERY:
9:30 a.m. (New York City time), February 2, 1998
INDENTURE:
Indenture dated December 6, 1995, among the Operating Partnership, the
Company and State Street Bank and Trust, as Trustee, as supplemented by the
Twelfth Supplemental Indenture with First Trust of California, National
Association as Trustee
MATURITY:
February 1, 2005
INTEREST RATE:
6.875%
4
<PAGE> 5
INTEREST PAYMENT DATES:
February 1 and August 1, beginning August 1, 1998.
REDEMPTION PROVISION:
The Notes may be redeemed at any time at the option of the Operating
Partnership, in whole or from time to time in part, at a redemption price
equal to the sum of (i) the principal amount of the Notes being redeemed
plus accrued interest thereon to the redemption date and (ii) the Make-Whole
Amount, if any, with respect to such Notes.
CLOSING LOCATION:
Sullivan & Cromwell
444 South Flower Street
Los Angeles, California 90071
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Morgan Stanley & Co. Incorporated, Goldman, Sachs & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated and J.P. Morgan Securities Inc.
Address for Notices, etc.:
Morgan Stanley & Co. Incorporated
1585 Broadway -- 2nd Floor
New York, New York 10036
Attn: Medium-Term Note Trading Desk, Carlos Cabrera
CAPTIONS OF PROSPECTUS:
"Description of Notes"
5
<PAGE> 1
EXHIBIT 1.3
PRICING AGREEMENT
January 28, 1998
Morgan Stanley & Co. Incorporated,
1585 Broadway,
New York, New York 10036.
Ladies and Gentlemen:
Spieker Properties, L.P., a California limited partnership (the "Operating
Partnership"), proposes, subject to the terms and conditions stated herein and
in the Underwriting Agreement, dated September 24, 1997 (the "Underwriting
Agreement"), between the Operating Partnership and Spieker Properties, Inc., a
Maryland corporation (the "Company"), on the one hand and Goldman, Sachs & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, J.P. Morgan Securities Inc.
and Morgan Stanley & Co. Incorporated, on the other hand, to issue and sell to
the Underwriter named in Schedule I hereto (the "Underwriter") the Securities
specified in Schedule II hereto (the "Designated Securities"). Each of the
provisions of the Underwriting Agreement is incorporated herein by reference in
its entirety, and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation or warranty as of
the date of the Underwriting Agreement in relation to the Prospectus (as therein
defined), and also a representation and warranty as of the date of this Pricing
Agreement in relation to the Prospectus as amended or supplemented relating to
the Designated Securities which are the subject of this Pricing Agreement. Each
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Operating
Partnership agrees to issue and sell to the Underwriter, and the Underwriter
agrees, to purchase from the Operating Partnership, at the time and place and at
the purchase price to the Underwriter set forth in Schedule II hereto, the
principal amount of Designated Securities set forth opposite the name of such
Underwriter in Schedule I hereto.
<PAGE> 2
If the foregoing is in accordance with your understanding, please sign and
return to us six counterparts hereof, and upon acceptance hereof by you, this
letter and such acceptance hereof, including the provisions of the Underwriting
Agreement incorporated herein by reference, shall constitute a binding agreement
between the Underwriter and the Company and the Operating Partnership.
Very truly yours,
SPIEKER PROPERTIES, L.P.
By: SPIEKER PROPERTIES, INC.
By: /s/ Craig G. Vought
-------------------------------------------
Name: Craig G. Vought
Title: Executive Vice President
and Chief Financial Officer
SPIEKER PROPERTIES, INC.
By: /s/ Craig G. Vought
-------------------------------------------
Name: Craig G. Vought
Title: Executive Vice President
and Chief Financial Officer
Accepted as of the date hereof:
Morgan Stanley & Co. Incorporated
By: /s/ Hal Hendershot III
---------------------------------
2
<PAGE> 3
SCHEDULE I
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT OF
DESIGNATED SECURITIES
UNDERWRITER TO BE PURCHASED
----------------- ---------------------
<S> <C>
Morgan Stanley & Co. Incorporated .............................. $ 1,500,000
-----------
Total........................................................... $ 1,500,000
===========
</TABLE>
3
<PAGE> 4
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
7% Notes due February 1, 2007
AGGREGATE PRINCIPAL AMOUNT:
$1,500,000
INITIAL OFFERING PRICE TO PUBLIC:
100% plus accrued interest, if any, from February 2, 1998.
PURCHASE PRICE BY UNDERWRITERS:
99.375% plus accrued interest, if any, from February 2, 1998.
FORM OF DESIGNATED SECURITIES:
Global Form
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Same day funds
TIME OF DELIVERY:
9:30 a.m. (New York City time), February 2, 1998
INDENTURE:
Indenture dated December 6, 1995, among the Operating Partnership, the
Company and State Street Bank and Trust, as Trustee, as supplemented by the
Thirteenth Supplemental Indenture with First Trust of California, National
Association as Trustee
MATURITY:
February 1, 2007
INTEREST RATE:
7%
4
<PAGE> 5
INTEREST PAYMENT DATES:
February 1 and August 1, beginning August 1, 1998.
REDEMPTION PROVISION:
The Notes may be redeemed at any time at the option of the Operating
Partnership, in whole or from time to time in part, at a redemption price
equal to the sum of (i) the principal amount of the Notes being redeemed
plus accrued interest thereon to the redemption date and (ii) the Make-Whole
Amount, if any, with respect to such Notes.
CLOSING LOCATION:
Sullivan & Cromwell
444 South Flower Street
Los Angeles, California 90071
NAMES AND ADDRESSES OF UNDERWRITER:
Morgan Stanley & Co. Incorporated
1585 Broadway -- 2nd Floor
New York, New York 10036
Attn: Medium-Term Note Trading Desk, Carlos Cabrera
CAPTIONS OF PROSPECTUS:
"Description of Notes"
5
<PAGE> 1
EXHIBIT 4.13
TENTH SUPPLEMENTAL INDENTURE
TENTH SUPPLEMENTAL INDENTURE, dated as of December 8, 1997 (this "Tenth
Supplemental Indenture"), among Spieker Properties, Inc., a corporation
organized under the laws of Maryland (the "General Partner"), Spieker
Properties, L.P., a limited partnership organized under the laws of California
(the "Issuer"), and First Trust of California, National Association, as Trustee
(the "Trustee").
W I T N E S S E T H:
WHEREAS, the Issuer, the General Partner and State Street Bank and Trust
Company ("State Street") executed and delivered an Indenture, dated as of
December 6, 1995 (as supplemented hereby, the "Indenture"), to provide for the
issuance by the Issuer from time to time of debt securities evidencing its
unsecured indebtedness;
WHEREAS, pursuant to the Ninth Supplemental Indenture, the Issuer and
the General Partner appointed the Trustee as trustee with respect to the series
of securities established by that Supplemental Indenture and future series of
securities under the Indenture, and the Trustee accepted such appointment;
WHEREAS, pursuant to the Ninth Supplemental Indenture, State Street
remains trustee of all series of securities prior to those established by the
Ninth Supplemental Indenture;
WHEREAS, pursuant to Board Resolution, the Issuer has authorized the
issuance of $200,000,000 of its 7.35% Debentures Due December 1, 2017 (the
"Debentures");
WHEREAS, the Issuer desires to establish the terms of the Debentures in
accordance with Section 301 of the Indenture and to establish the form of the
Debentures in accordance with Section 201 of the Indenture.
ARTICLE 1
TERMS
SECTION 101. TERMS OF DEBENTURES. The following terms relating to the
Debentures are hereby established:
(1) The Debentures shall constitute a series of Securities having
the title "7.35% Debentures Due December 1, 2017."
(2) The aggregate principal amount of the Debentures that may be
authenticated and delivered under the Indenture (except for Debentures
authenticated and delivered upon registration of transfer of, or in
exchange for, or
-1-
<PAGE> 2
in lieu of, other Debentures pursuant to Sections 304, 305, 306, 906,
1107 or 1305 of the Indenture) shall be up to $200,000,000.
(3) The entire outstanding principal of the Debentures shall be
payable on December 1, 2017 (the "Stated Maturity Date").
(4) The rate at which the Debentures shall bear interest shall be
7.35%; the date from which interest shall accrue shall be December 8,
1997; the Interest Payment Dates for the Debentures on which interest
will be payable shall be June 1 and December 1 in each year, beginning
June 1, 1998; the Regular Record Dates for the interest payable on the
Debentures on any Interest Payment Date shall be the 15th calendar day
preceding the applicable Interest Payment Date; and the basis upon which
interest shall be calculated shall be that of a 360-day year consisting
of twelve 30-day months.
(5) The Place of Payment where the principal of and interest on
the Debentures shall be payable and Debentures may be surrendered for
the registration of transfer or exchange shall be the Corporate Trust
Office of the Trustee in St. Paul, Minnesota. The place where notices or
demands to or upon the Issuer in respect of the Debentures and the
Indenture may be served shall be the corporate trust office of the
Trustee at One California Street, Suite 400, San Francisco, California
94111.
(6) (A) The Debentures may be redeemed at any time at the option
of the Issuer, in whole, or from time to time in part, at a redemption
price equal to the sum of (i) the principal amount of the Debentures (or
portion thereof) being redeemed plus accrued interest thereon to the
redemption date and (ii) the Make-Whole Amount (as defined below), if
any, with respect to such Debentures (or portion thereof) (the
"Redemption Price").
If notice has been given as provided in the Indenture and funds
for the redemption of any Debentures (or any portion thereof) called for
redemption shall have been made available on the redemption date
referred to in such notice, such Debentures (or any portion thereof)
will cease to bear interest on the date fixed for such redemption
specified in such notice and the only right of the Holders of the
Debentures will be to receive payment of the Redemption Price, with
respect to such Debentures or portion thereof so redeemed.
Notice of any optional redemption of any Debentures (or any
portion thereof) will be given to Holders at their addresses, as shown
in the security register for the Debentures, not more than 60 nor less
than 30 days prior to the date fixed for redemption. The notice of
redemption will specify, among other items, the Redemption Price and the
principal amount of the Debentures held by such Holder to be redeemed.
On the third Business Day preceding the date notice of redemption is
given, the Company will notify the Trustee of the Redemption Price and
the Trustee may rely and shall be
-2-
<PAGE> 3
fully protected in acting upon the determination of the Company as to
such Redemption Price.
The Issuer will notify the Trustee in writing at least 45 days
prior to giving notice of redemption (or such shorter period as is
satisfactory to the Trustee in its sole discretion) of the aggregate
principal amount of Debentures to be redeemed and their redemption date.
If less than all the Debentures are to be redeemed at the option of the
Issuer, the Trustee shall select by lot, the Debentures to be redeemed
in whole or in part.
In the event of redemption of the Debentures in part only, a new
Debenture for the amount of the unredeemed portion thereof shall be
issued in the name of the Holder thereto, upon cancellation thereof.
(B) As used herein:
"Make-Whole Amount" means, in connection with any optional
redemption or accelerated payment of any Debentures, the excess, if any,
of (i) the aggregate present value as of the date of such redemption or
accelerated payment of each dollar of principal being redeemed or paid
and the amount of interest (exclusive of interest accrued to the date of
redemption or accelerated payment) that would have been payable in
respect of each such dollar if such redemption or accelerated payment
had not been made, determined by discounting, on a semi-annual basis,
such principal and interest at the Reinvestment Rate (determined on the
third Business Day preceding the date such notice of redemption is given
or declaration of acceleration is made) from the respective dates on
which such principal and interest would have been payable if such
redemption or accelerated payment had not been made, over (ii) the
aggregate principal amount of the Debentures being redeemed or paid.
"Reinvestment Rate" means 0.25% plus the arithmetic mean of the
yields under the respective heading "Week Ending" published in the most
recent Statistical Release under the caption "Treasury Constant
Maturities" for the maturity (rounded to the nearest month)
corresponding to the remaining life to maturity, as of the payment date
of the principal being redeemed or paid. If no maturity exactly
corresponds to such maturity, yields for the two published maturities
most closely corresponding to such maturity shall be calculated pursuant
to the immediately preceding sentence and the Reinvestment Rate shall be
interpolated or extrapolated from such yields on a straight-line basis,
rounding in each of such relevant periods to the nearest month. For the
purpose of calculating the Reinvestment Rate, the most recent
Statistical Release published prior to the date of determination of the
Make-Whole Amount shall be used.
"Statistical Release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by
the Federal Reserve System and which establishes yields on actively
traded United States government securities adjusted to constant
maturities, or, if such statistical release is not published at the time
of
-3-
<PAGE> 4
any determination under the Indenture, then such other reasonably
comparable index which shall be designated by the Issuer.
(7) The Debentures shall not be redeemable at the option of any
Holder thereof, upon the occurrence of any particular circumstances or
otherwise. The Debentures will not have the benefit of any sinking fund.
(8) The Debentures shall be issuable in denominations of $1,000
and any integral multiple thereof.
(9) The Trustee shall also be the Security Registrar and Paying
Agent for the Debentures.
(10) The entire outstanding principal amount plus the Make-Whole
Amount of the Debentures shall be payable upon declaration of
acceleration of the maturity thereof pursuant to Section 502 of the
Indenture.
(11) Payments of the principal of and interest on the Debentures
shall be made in U.S. Dollars, and the Debentures shall be denominated
in U.S. Dollars.
(12) The Debentures will be payable on the Stated Maturity Date
in an amount equal to the principal amount thereof plus any unpaid
interest accrued to the Stated Maturity Date.
(13) The Holders of the Debentures shall have no special rights
in addition to those provided in the Indenture upon the occurrence of
any particular events.
(14) (A) There shall be no deletions from, modifications of or
additions to the Events of Default with respect to the Debentures set
forth in the Indenture.
(B) There shall be the following additions to the
covenants set forth in the Indenture with respect to the Debentures,
which shall be effective only for so long as any of the Debentures are
Outstanding:
Limitations On Incurrence of Debt. The Issuer will not, and
will not permit any Subsidiary to, incur any Debt (as defined
below), other than inter-company debt representing Debt to which
the only parties are Spieker Properties, Inc., a Maryland
corporation (the "General Partner"), the Issuer and any of their
Subsidiaries (but only so long as such Debt is held solely by any
of the General Partner, the Issuer and any Subsidiary) that is
subordinate in right of payment to the Debentures if, immediately
after giving effect to the incurrence of such additional Debt,
the aggregate principal amount of all outstanding Debt of the
Issuer and its Subsidiaries on a consolidated basis is greater
than 60% of the sum of (i) Total Assets (as defined below) as of
the end of the calendar quarter covered
-4-
<PAGE> 5
in the Issuer's Annual Report on Form 10-K or Quarterly Report on
Form 10-Q, as the case may be, most recently filed with the
Trustee (or such reports of the General Partner if filed by the
Issuer with the Trustee in lieu of filing its own reports) prior
to the incurrence of such additional Debt and (ii) the increase
in Total Assets from the end of such quarter including, without
limitation, any increase in Total Assets resulting from the
incurrence of such additional Debt (such increase, together with
the Total Assets, is referred to as "Adjusted Total Assets").
In addition to the foregoing limitation on the incurrence of
Debt, the Issuer will not, and will not permit any Subsidiary to,
incur any Debt if the ratio of Consolidated Income Available for
Debt Service to the Annual Service Charge (in each case as
defined below) for the four consecutive fiscal quarters most
recently ended prior to the date on which such additional Debt is
to be incurred shall have been less than 1.5 to 1, on a pro forma
basis after giving effect to the incurrence of such Debt and to
the application of the proceeds therefrom, and calculated on the
assumption that (i) such Debt and any other Debt incurred by the
Issuer or its Subsidiaries since the first day of such
four-quarter period and the application of the proceeds
therefrom, including to refinance other Debt, had occurred at the
beginning of such period, (ii) the repayment or retirement of any
other Debt by the Issuer or its Subsidiaries since the first day
of such four-quarter period had been incurred, repaid or retired
at the beginning of such period (except that, in making such
computation, the amount of Debt under any revolving credit
facility shall be computed based upon the average daily balance
of such Debt during such period), (iii) the income earned on any
increase in Adjusted Total Assets since the end of such
four-quarter period had been earned, on an annualized basis,
during such period, and (iv) in the case of any acquisition or
disposition by the Issuer or any Subsidiary of any asset or group
of assets since the first day of such four-quarter period,
including, without limitation, by merger, stock purchase or sale,
or asset purchase or sale, such acquisition or disposition or any
related repayment of Debt had occurred as of the first day of
such period with the appropriate adjustments with respect to such
acquisition or disposition being included in such pro forma
calculation.
In addition to the foregoing limitations on the incurrence
of Debt, the Issuer will not, and will not permit any Subsidiary
to, incur any Debt secured by any mortgage, lien, charge, pledge,
encumbrance or security interest of any kind upon any of the
property of the Issuer or any Subsidiary ("Secured Debt"),
whether owned at the date of the Indenture or thereafter
acquired, if, immediately after giving effect to the incurrence
of such additional Secured Debt, the aggregate principal amount
of all outstanding Secured Debt is greater than 40% of Adjusted
Total Assets.
-5-
<PAGE> 6
For purposes of the foregoing provisions regarding the
limitation on the incurrence of Debt, Debt shall be deemed to be
"incurred" by the Issuer or a Subsidiary whenever the Issuer and
its Subsidiary shall create, assume, guarantee or otherwise
become liable in respect thereof.
Maintenance of Total Unencumbered Assets. The Issuer is
required to maintain Total Unencumbered Assets of not less than
165% of the aggregate outstanding principal amount of all
outstanding Unsecured Debt.
As used herein:
"Annual Service Charge" as of any date means the amount
which is expensed in any 12-month period for interest on Debt of
the Issuer and its Subsidiaries.
"Consolidated Income Available For Debt Service" for any
period means Consolidated Net Income plus amounts which have been
deducted for (a) interest on Debt of the Issuer and its
Subsidiaries, (b) provision for taxes of the Issuer and its
Subsidiaries based on income, (c) amortization of Debt discount,
(d) provisions for gains and losses on properties, (e)
depreciation and amortization, (f) the effect of any noncash
charge resulting from a change in accounting principles in
determining Consolidated Net Income for such period and (g)
amortization of deferred charges.
"Consolidated Net Income" for any period means the amount of
consolidated net income (or loss) of the Issuer and its
Subsidiaries for such period determined on a consolidated basis
in accordance with generally accepted accounting principles.
"Debt" of the Issuer or any Subsidiary means any
indebtedness of the Issuer or such Subsidiary, as applicable,
whether or not contingent, in respect of (i) borrowed money
evidenced by bonds, notes, debentures or similar instruments,
(ii) indebtedness secured by any mortgage, pledge, lien, charge,
encumbrance or any security interest existing on property owned
by the Issuer or such Subsidiary, (iii) the reimbursement
obligations, contingent or otherwise, in connection with any
letters of credit actually issued or amounts representing the
balance that constitutes an accrued expense or trade payable or
(iv) any lease of property by the Issuer or such Subsidiary as
lessee which is reflected in the Issuer's consolidated balance
sheet as a capitalized lease in accordance with generally
accepted accounting principles, in the case of items of
indebtedness under (i) through (iii) above to the extent that any
such items (other than letters of credit) would appear as a
liability on the Issuer's consolidated balance sheet in
accordance with generally accepted accounting principles, and
also includes, to the extent not otherwise included, any
obligation by the Issuer or such Subsidiary to be liable
-6-
<PAGE> 7
for, or to pay, as obligor, guarantor or otherwise (other than
for purposes of collection in the ordinary course of business),
indebtedness of another person (other than the Issuer or any
Subsidiary).
"Subsidiary" means a corporation, partnership or limited
liability company, a majority of the outstanding voting stock,
partnership interests or membership interests, as the case may
be, of which is owned or controlled, directly or indirectly, by
the Issuer or by one or more other Subsidiaries of the Issuer.
For the purposes of this definition, "voting stock" means stock
having the voting power for the election of directors, general
partners, managers or trustees, as the case may be, whether at
all times or only so long as no senior class of stock has such
voting power by reason of any contingency.
"Total Assets" as of any date means the sum of (i)
Undepreciated Real Estate Assets and (ii) all other assets of the
Issuer and its Subsidiaries on a consolidated basis determined in
accordance with generally accepted accounting principles (but
excluding intangibles and accounts receivable).
"Total Unencumbered Assets" as of any date means the sum of
(i) those Undepreciated Real Estate Assets which have not been
pledged, mortgaged or otherwise encumbered by the owner thereof
to secure Debt, excluding infrastructure assessment bonds, and
(ii) all other assets of the Issuer and its Subsidiaries
determined in accordance with generally accepted accounting
principles (but excluding intangibles and accounts receivable)
which have not been pledged, mortgaged or otherwise encumbered by
the owner thereof to secure Debt.
"Undepreciated Real Estate Assets" as of any date means the
cost (original cost plus capital improvements) of real estate
assets of the Issuer and its Subsidiaries on such date, before
depreciation and amortization, determined on a consolidated basis
in accordance with generally accepted accounting principles.
"Unsecured Debt" as of any date means Debt which is not
secured by any mortgage, lien, charge, pledge, encumbrance or
security interest of any kind upon any of the properties of the
Issuer or any Subsidiary.
(C) The Trustee shall not be obligated to monitor or confirm, on
a continuing basis or otherwise, the Issuer's compliance with the
covenants contained in this subsection or with respect to reports or
other documents filed under the Indenture; provided, however, that
nothing herein shall relieve the Trustee of any obligations to monitor
the Issuer's timely delivery of all reports and certificates required
under Sections 703 and 1005 of the Indenture and to fulfill its
obligations under Article Six of the Indenture.
-7-
<PAGE> 8
(15) The Debentures shall be issuable only as Registered
Securities in permanent global form (without coupons). Beneficial owners
of interests in the permanent global Debentures may exchange such
interests for Debentures of like tenor or any authorized form and
denomination only in the manner provided in Section 305 of the
Indenture. DTC shall be the depository with respect to the permanent
global Debenture.
(16) The Debentures shall not be issuable as Bearer Securities.
(17) Interest on any Debenture shall be payable only to the
Person in whose name that Debenture (or one or more predecessor
Debentures thereof) is registered at the close of business on the
Regular Record Date for such interest.
(18) Sections 1402 and 1403 of the Indenture shall be applicable
to the Debentures.
(19) The Debentures shall not be issuable in definitive form
except under the circumstances described in Section 305 of the
Indenture.
(20) Articles Sixteen and Seventeen of the Indenture shall not be
applicable to the Debentures.
(21) The Issuer shall not pay Additional Amounts with respect to
the Debentures as contemplated by Section 1009 of the Indenture.
(22) The Debentures shall not be subordinated to any other debt
of the Issuer, and shall constitute senior unsecured obligations of the
Issuer.
SECTION 102. FORM OF DEBENTURE. The form of the Debenture is attached
hereto as Exhibit A.
ARTICLE II
MISCELLANEOUS
SECTION 201. DEFINITIONS. Capitalized terms used but not defined in this
Tenth Supplemental Indenture shall have the meanings ascribed thereto in the
Indenture.
SECTION 202. CONFIRMATION OF INDENTURE. The Indenture, as heretofore
supplemented and amended by this Tenth Supplemental Indenture, is in all
respects ratified and confirmed, and the Indenture, this Tenth Supplemental
Indenture and all indentures supplemental thereto shall be read, taken and
construed as one and the same instrument.
SECTION 203. CONCERNING THE TRUSTEE. The Trustee assumes no duties,
responsibilities or liabilities by reason of this Tenth Supplemental Indenture
other than as set
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<PAGE> 9
forth in the Indenture and, in carrying out its responsibilities hereunder,
shall have all of the rights, protections and immunities which it possesses
under the Indenture.
SECTION 204. GOVERNING LAW. This Tenth Supplemental Indenture, the
Indenture and the Securities shall be governed by and construed in accordance
with the law of the State of New York.
SECTION 205. SEPARABILITY. In case any provision in this Tenth
Supplemental Indenture shall for any reason be held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 206. COUNTERPARTS. This Tenth Supplemental Indenture may be
executed in any number of counterparts each of which shall be an original, but
such counterparts shall together constitute but one and the same instrument.
-9-
<PAGE> 10
IN WITNESS WHEREOF, the parties hereto have caused this Tenth
Supplemental Indenture to be duly executed, and the corporate seal of the
General Partner to be hereunto affixed and attested, as of the day and year
first above written.
SPIEKER PROPERTIES, L.P.
By: Spieker Properties, Inc., as General Partner
By: /s/ Craig G. Vought
---------------------------------------------
Name: Craig G. Vought
Title: Executive Vice President
and Chief Financial Officer
(seal)
Attest:
By: /s/ Stuart A. Rothstein
--------------------------
Name: Stuart A. Rothstein
Title: Assistant Secretary
SPIEKER PROPERTIES, INC.
By: /s/ Craig G. Vought
---------------------------------------------
Name: Craig G. Vought
Title: Executive Vice President
and Chief Financial Officer
(seal)
Attest:
By: /s/ Stuart A. Rothstein
--------------------------
Name: Stuart A. Rothstein
Title: Assistant Secretary
-10-
<PAGE> 11
FIRST TRUST OF CALIFORNIA,
NATIONAL ASSOCIATION, as Trustee
By: /s/ Jennifer Holder
---------------------------------------------
Name: Jennifer Holder
Title: Vice President
Attest:
By: /s/ Josephine Libunao
--------------------------
Name: Josephine Libunao
Title: Assistant Vice President
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<PAGE> 12
STATE OF California )
COUNTY OF San Mateo ) ss.:
On the 8th day of December, 1997, before me personally came Craig G.
Vought to me known, who, being by me duly sworn, did depose and say that he is
the EVP and CFO of Spieker Properties, Inc., one of the entities described in
and which executed the above instrument; that he knows the corporate seal of
said corporation; that the seal affixed to the said instrument is such corporate
seal; that it was so affixed by authority of the corporation, and that he signed
his name thereto by like authority.
/s/ Julie L. Bartlow
---------------------------------------------
[Seal]
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<PAGE> 13
EXHIBIT A
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR DEBENTURES IN
DEFINITIVE FORM, THIS DEBENTURE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO
THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OR TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
REGISTERED PRINCIPAL AMOUNT
NO.: R-1 $
CUSIP NO.: 848503 AG 3
SPIEKER PROPERTIES, L.P.
7.35% DEBENTURE DUE DECEMBER 1, 2017
SPIEKER PROPERTIES, L.P., a California limited partnership (the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or
registered assignee (the "Holder"), upon presentation, the principal sum of
$ on December 1, 2017, and to pay interest on the outstanding
principal amount thereon from December 8, 1997, or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, semi-annually
in arrears on June 1 and December 1 in each year (each an "Interest Payment
Date"), commencing June 1, 1998, and at the Stated Maturity, at the rate of
7.35% per annum, computed on the basis of a 360-day year comprised of twelve
30-day months, until the entire principal amount hereof is paid or duly provided
for. The interest so payable, and punctually paid or duly provided for on any
Interest Payment Date will, as provided in the Indenture (hereinafter defined),
be paid to the person in whose name this debenture (the "Debenture") (or one or
more predecessor Debentures) is registered at the close of business on the
Regular Record Date for such Interest Payment Date which shall be the 15th
calendar day preceding the applicable Interest Payment Date. Any such interest
not so punctually paid or duly provided for shall forthwith cease to be payable
to the Holder on such Regular Record Date, and may either be paid to the Person
in whose name this Debenture (or one or more predecessor Debentures) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Debentures not more than 15 days and not less than 10 days
-1-
<PAGE> 14
prior to such Special Record Date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Debentures may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in the Indenture. Payments of the
principal of, and interest on, this Debenture will be made at the office or
agency of the Trustee (hereinafter defined) maintained for that purpose at 180
E. Fifth Street, St. Paul, Minnesota 55101, or elsewhere as provided in the
Indenture, in United States Dollars; provided, however, that at the option of
the Holder hereof, and upon written notice to the Trustee of not less than five
Business Days prior to the applicable Interest Payment Date, payment of interest
may be made by (i) check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register kept for the Debentures
pursuant to Section 305 of the Indenture (the "Debenture Register") or (ii)
transfer to an account of the Person entitled thereto located inside the United
States.
This Debenture is one of a fully authorized issue of securities of the
Issuer issued as a series of securities issued and to be issued under an
Indenture, dated as of December 6, 1995 as supplemented by the Tenth
Supplemental Indenture dated December 8, 1997 (collectively, the "Indenture"),
among the Issuer and First Trust of California, National Association (the
"Trustee," which term includes any successor trustee under the Indenture with
respect to the Debentures), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Issuer, the
Trustee and the Holders of the Debentures, and of the terms upon which the
Debentures are, and are to be, authenticated and delivered. This Debenture is
one of the series designated as the "7.35% Debentures due December 1, 2017,"
limited in the aggregate principal amount to $200,000,000.
The Debentures may be redeemed at any time at the option of the Issuer,
in whole or from time to time in part, at a redemption price (the "Redemption
Price") equal to the sum of (i) the principal amount of the Debentures (or
portion thereof) being redeemed plus accrued interest thereon to the redemption
date and (ii) the Make-Whole Amount (as defined below), if any, with respect to
such Debentures (or portion thereof).
If notice has been given as provided in the Indenture and funds for the
redemption of any Debentures (or any portion thereof) called for redemption
shall have been made available on the redemption date referred to in such
notice, such Debentures (or any portion thereof) will cease to bear interest on
the date fixed for such redemption specified in such notice and the only right
of the Holders of the Debentures will be to receive payment of the Redemption
Price, with respect to such Debentures or portion thereof so redeemed.
Notice of any optional redemption of any Debentures (or any portion
thereof) will be given to Holders at their addresses, as shown in the Debenture
Register, not more than 60 nor less than 30 days prior to the date fixed for
redemption. The notice of redemption will specify, among other items, the
Redemption Price and the principal amount of the Debentures held by such Holder
to be redeemed.
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<PAGE> 15
The Issuer will notify the Trustee at least 45 days prior to giving
notice of redemption (or such shorter period as is satisfactory to the Trustee)
of the aggregate principal amount of Debentures to be redeemed and their
redemption date. If less than all the Debentures are to be redeemed at the
option of the Issuer, the Trustee shall select, in such manner as it shall deem
fair and appropriate, the Debentures to be redeemed in whole or in part.
In the event of redemption of the Debentures in part only, a new
Debenture for the amount of the unredeemed portion hereof shall be issued in the
name of the Holder hereto, upon cancellation hereof.
As used herein:
"Make-Whole Amount" means, in connection with any optional
redemption or accelerated payment of any Debentures, the excess, if any,
of (i) the aggregate present value as of the date of such redemption or
accelerated payment of each dollar of principal being redeemed or paid
and the amount of interest (exclusive of interest accrued to the date of
redemption or accelerated payment) that would have been payable in
respect of each such dollar if such redemption or accelerated payment
had not been made, determined by discounting, on a semi-annual basis,
such principal and interest at the Reinvestment Rate (determined on the
third Business Day preceding the date such notice of redemption is given
or declaration of acceleration is made) from the respective dates on
which such principal and interest would have been payable if such
redemption or accelerated payment had not been made, over (ii) the
aggregate principal amount of the Debentures being redeemed or paid.
"Reinvestment Rate" means 0.25% plus the arithmetic mean of the
yields under the respective heading "Week Ending" published in the most
recent Statistical Release under the caption "Treasury Constant
Maturities" for the maturity (rounded to the nearest month)
corresponding to the remaining life to maturity, as of the payment date
of the principal being redeemed or paid. If no maturity exactly
corresponds to such maturity, yields for the two published maturities
most closely corresponding to such maturity shall be calculated pursuant
to the immediately preceding sentence and the Reinvestment Rate shall be
interpolated or extrapolated from such yields on a straight-line basis,
rounding in each of such relevant periods to the nearest month. For the
purpose of calculating the Reinvestment Rate, the most recent
Statistical Release published prior to the date of determination of the
Make-Whole Amount shall be used.
"Statistical Release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by
the Federal Reserve System and which establishes yields on actively
traded United States government securities adjusted to constant
maturities, or, if such statistical release is not published at the time
of any determination under the Indenture, then such other reasonably
comparable index which shall be designated by the Issuer.
-3-
<PAGE> 16
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness of the Issuer on this Debenture and (b) certain restrictive
covenants and the related defaults and Events of Default applicable to the
Issuer, in each case, upon compliance by the Issuer with certain conditions set
forth in the Indenture, which provisions apply to this Debenture.
The Issuer is subject to certain covenants contained in the Indenture
with respect to, and for the benefit of the Holders of, the Debentures. The
Trustee shall not be obligated to monitor or confirm, on a continuing basis or
otherwise, the Issuer's compliance with the covenants contained in the Indenture
or with respect to reports or other certificates filed under the Indenture;
provided, however, that nothing herein shall relieve the Trustee of any
obligations to monitor the Issuer's timely delivery of all reports and
certificates required under Sections 703 and 1005 of the Indenture and to
fulfill its obligations under Article Six of the Indenture. If an Event of
Default as defined in the Indenture with respect to the Debentures shall occur
and be continuing, the principal of the Debentures may be declared due and
payable in the manner and with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Debenture shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Debentures, the Holders of not less than a majority in principal amount of the
Debentures at the time Outstanding shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default as Trustee
and offered the Trustee reasonable indemnity and shall have failed to institute
any such proceeding, for 60 days after receipt of such notice, request and offer
of indemnity and the Trustee shall not have received from the Holders of a
majority in principal amount of the Debentures at the time Outstanding a
direction inconsistent with such request. The foregoing shall not apply to any
suit instituted by the Holder of this Debenture for the enforcement of any
payment of principal hereof or any interest on or after the respective due dates
expressed herein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Debentures under the Indenture at
any time by the Issuer and the Trustee with the consent of the Holders of not
less than a majority in principal amount of the Outstanding Debentures. The
Indenture also contains provisions permitting the Holders of not less than a
majority in principal amount of the Debentures at the time Outstanding, on
behalf of the Holders of all Debentures, to waive compliance by the Issuer with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Debenture shall be conclusive and binding upon such Holder and upon all
future Holders of this Debenture and of any Debenture issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Debenture.
-4-
<PAGE> 17
No reference herein to the Indenture and no provision of this Debenture
or of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of, and interest on, this
Debenture at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Debenture is registrable in the Debenture
Register, upon surrender of this Debenture for registration of transfer at the
office or agency of the Issuer in any Place of Payment where the principal of,
and interest on, this Debenture are payable, duly endorsed by, or accompanied by
a written instrument of transfer in form satisfactory to the Issuer and the
Security Registrar for the Debentures duly executed by, the Holder hereof or his
attorney duly authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Debentures of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
the Debentures are exchangeable for a like aggregate principal amount of
Debentures of this series of a different authorized denomination, as requested
by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Debenture for registration of transfer,
the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
Person in whose name this Debenture is registered as the owner hereof for all
purposes, whether or not this Debenture be overdue, and neither the Issuer, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Debenture which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE DEBENTURES INCLUDING THIS DEBENTURE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Issuer has caused "CUSIP" numbers to be
printed on the Debentures as a convenience to the Holders of the Debentures. No
representation is made as to the correctness or accuracy of such CUSIP numbers
as printed on the Debentures, and reliance may be placed only on the other
identification numbers printed hereon.
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<PAGE> 18
Unless the certificate of authentication hereon has been executed by or
on behalf of the Trustee by manual signature, this Debenture shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purposes.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its corporate seal this ___ day of ____________.
SPIEKER PROPERTIES, L.P.
By: Spieker Properties, Inc., as
General Partner
By:
---------------------------------------------
Name: Craig G. Vought
Title: Executive Vice President
and Chief Financial Officer
[SEAL]
Attest:
By: --------------------------
Name: Stuart A. Rothstein
Title: Vice President - Finance
and Assistant Secretary
-6-
<PAGE> 19
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Debentures of the series designated "7.35% Debentures
due December 1, 2017" referred to in the within-mentioned Indenture.
FIRST TRUST OF CALIFORNIA, NATIONAL ASSOCIATION,
as Trustee
By: ____________________________
Name:
Title:
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ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers to
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(Insert Social Security number or other identifying number of assignee)
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(Please print or typewrite name and address, including zip, code of assignee)
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the within Debenture of Spieker Properties, L.P. and hereby does irrevocably
constitute and appoint
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Attorney to transfer said Debenture on the books of the within-named Issuer with
full power of substitution in the premises.
Dated:____________ ___________________________________
___________________________________
Signature(s) must be guaranteed by an eligible Guarantor Institution (banks,
stock brokers, savings and loan associations and credit unions) with membership
in an approved signature guarantee medallion program pursuant to Securities and
Exchange Commission Rule 17Ad-15.
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Debenture in every particular, without
alteration or enlargement or any change whatever.
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EXHIBIT 4.14
ELEVENTH SUPPLEMENTAL INDENTURE
ELEVENTH SUPPLEMENTAL INDENTURE, dated as of January 27, 1998 (this
"Eleventh Supplemental Indenture"), among Spieker Properties, Inc., a
corporation organized under the laws of Maryland (the "General Partner"),
Spieker Properties, L.P., a limited partnership organized under the laws of
California (the "Issuer"), and First Trust of California, National Association,
as Trustee (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Issuer, the General Partner and State Street Bank and Trust
Company ("State Street") executed and delivered an Indenture, dated as of
December 6, 1995 (as supplemented hereby, the "Indenture"), to provide for the
issuance by the Issuer from time to time of debt securities evidencing its
unsecured indebtedness;
WHEREAS, pursuant to the Ninth Supplemental Indenture, the Issuer and
the General Partner appointed the Trustee as trustee with respect to the series
of securities established by that Supplemental Indenture and future series of
securities under the Indenture, and the Trustee accepted such appointment;
WHEREAS, pursuant to the Ninth Supplemental Indenture, State Street
remains trustee of all series of securities prior to those established by the
Ninth Supplemental Indenture;
WHEREAS, pursuant to Board Resolution, the Issuer has authorized the
issuance of $150,000,000 of its 6.75% Notes Due January 15, 2008 (the "Notes");
WHEREAS, the Issuer desires to establish the terms of the Notes in
accordance with Section 301 of the Indenture and to establish the form of the
Notes in accordance with Section 201 of the Indenture.
ARTICLE 1
TERMS
SECTION 101. TERMS OF NOTES. The following terms relating to the Notes
are hereby established:
(1) The Notes shall constitute a series of Securities having the
title "6.75% Notes Due January 15, 2008."
(2) The aggregate principal amount of the Notes that may be
authenticated and delivered under the Indenture (except for Notes
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of,
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other Notes pursuant to Sections 304, 305, 306, 906, 1107 or 1305 of the
Indenture) shall be up to $150,000,000.
(3) The entire outstanding principal of the Notes shall be
payable on January 15, 2008 (the "Stated Maturity Date").
(4) The rate at which the Notes shall bear interest shall be
6.75%; the date from which interest shall accrue shall be January 27,
1998; the Interest Payment Dates for the Notes on which interest will be
payable shall be January 15 and July 15 in each year, beginning July 15,
1998; the Regular Record Dates for the interest payable on the Notes on
any Interest Payment Date shall be the 15th calendar day preceding the
applicable Interest Payment Date; and the basis upon which interest
shall be calculated shall be that of a 360-day year consisting of twelve
30-day months.
(5) The Place of Payment where the principal of and interest on
the Notes shall be payable and Notes may be surrendered for the
registration of transfer or exchange shall be the Corporate Trust Office
of the Trustee in St. Paul, Minnesota. The place where notices or
demands to or upon the Issuer in respect of the Notes and the Indenture
may be served shall be the corporate trust office of the Trustee at One
California Street, Suite 400, San Francisco, California 94111.
(6) (A) The Notes may be redeemed at any time at the option of
the Issuer, in whole, or from time to time in part, at a redemption
price equal to the sum of (i) the principal amount of the Notes (or
portion thereof) being redeemed plus accrued interest thereon to the
redemption date and (ii) the Make-Whole Amount (as defined below), if
any, with respect to such Notes (or portion thereof) (the "Redemption
Price").
If notice has been given as provided in the Indenture and funds
for the redemption of any Notes (or any portion thereof) called for
redemption shall have been made available on the redemption date
referred to in such notice, such Notes (or any portion thereof) will
cease to bear interest on the date fixed for such redemption specified
in such notice and the only right of the Holders of the Notes will be to
receive payment of the Redemption Price, with respect to such Notes or
portion thereof so redeemed.
Notice of any optional redemption of any Notes (or any portion
thereof) will be given to Holders at their addresses, as shown in the
security register for the Notes, not more than 60 nor less than 30 days
prior to the date fixed for redemption. The notice of redemption will
specify, among other items, the Redemption Price and the principal
amount of the Notes held by such Holder to be redeemed. On the third
Business Day preceding the date notice of redemption is given, the
Company will notify the Trustee of the Redemption Price and the Trustee
may rely and shall be fully protected in acting upon the determination
of the Company as to such Redemption Price.
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The Issuer will notify the Trustee in writing at least 45 days
prior to giving notice of redemption (or such shorter period as is
satisfactory to the Trustee in its sole discretion) of the aggregate
principal amount of Notes to be redeemed and their redemption date. If
less than all the Notes are to be redeemed at the option of the Issuer,
the Trustee shall select by lot, the Notes to be redeemed in whole or in
part.
In the event of redemption of the Notes in part only, a new Note
for the amount of the unredeemed portion thereof shall be issued in the
name of the Holder thereto, upon cancellation thereof.
(B) As used herein:
"Make-Whole Amount" means, in connection with any optional
redemption or accelerated payment of any Notes, the excess, if any, of
(i) the aggregate present value as of the date of such redemption or
accelerated payment of each dollar of principal being redeemed or paid
and the amount of interest (exclusive of interest accrued to the date of
redemption or accelerated payment) that would have been payable in
respect of each such dollar if such redemption or accelerated payment
had not been made, determined by discounting, on a semi-annual basis,
such principal and interest at the Reinvestment Rate (determined on the
third Business Day preceding the date such notice of redemption is given
or declaration of acceleration is made) from the respective dates on
which such principal and interest would have been payable if such
redemption or accelerated payment had not been made, over (ii) the
aggregate principal amount of the Notes being redeemed or paid.
"Reinvestment Rate" means 0.25% plus the arithmetic mean of the
yields under the respective heading "Week Ending" published in the most
recent Statistical Release under the caption "Treasury Constant
Maturities" for the maturity (rounded to the nearest month)
corresponding to the remaining life to maturity, as of the payment date
of the principal being redeemed or paid. If no maturity exactly
corresponds to such maturity, yields for the two published maturities
most closely corresponding to such maturity shall be calculated pursuant
to the immediately preceding sentence and the Reinvestment Rate shall be
interpolated or extrapolated from such yields on a straight-line basis,
rounding in each of such relevant periods to the nearest month. For the
purpose of calculating the Reinvestment Rate, the most recent
Statistical Release published prior to the date of determination of the
Make-Whole Amount shall be used.
"Statistical Release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by
the Federal Reserve System and which establishes yields on actively
traded United States government securities adjusted to constant
maturities, or, if such statistical release is not published at the time
of any determination under the Indenture, then such other reasonably
comparable index which shall be designated by the Issuer.
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(7) The Notes shall not be redeemable at the option of any Holder
thereof, upon the occurrence of any particular circumstances or
otherwise. The Notes will not have the benefit of any sinking fund.
(8) The Notes shall be issuable in denominations of $1,000 and
any integral multiple thereof.
(9) The Trustee shall also be the Security Registrar and Paying
Agent for the Notes.
(10) The entire outstanding principal amount plus the Make-Whole
Amount of the Notes shall be payable upon declaration of acceleration of
the maturity thereof pursuant to Section 502 of the Indenture.
(11) Payments of the principal of and interest on the Notes shall
be made in U.S. Dollars, and the Notes shall be denominated in U.S.
Dollars.
(12) The Notes will be payable on the Stated Maturity Date in an
amount equal to the principal amount thereof plus any unpaid interest
accrued to the Stated Maturity Date.
(13) The Holders of the Notes shall have no special rights in
addition to those provided in the Indenture upon the occurrence of any
particular events.
(14) (A) There shall be no deletions from, modifications of or
additions to the Events of Default with respect to the Notes set forth
in the Indenture.
(B) There shall be the following additions to the covenants set
forth in the Indenture with respect to the Notes, which shall be
effective only for so long as any of the Notes are Outstanding:
Limitations On Incurrence of Debt. The Issuer will not,
and will not permit any Subsidiary to, incur any Debt (as defined
below), other than inter-company debt representing Debt to which
the only parties are Spieker Properties, Inc., a Maryland
corporation (the "General Partner"), the Issuer and any of their
Subsidiaries (but only so long as such Debt is held solely by any
of the General Partner, the Issuer and any Subsidiary) that is
subordinate in right of payment to the Notes if, immediately
after giving effect to the incurrence of such additional Debt,
the aggregate principal amount of all outstanding Debt of the
Issuer and its Subsidiaries on a consolidated basis is greater
than 60% of the sum of (i) Total Assets (as defined below) as of
the end of the calendar quarter covered in the Issuer's Annual
Report on Form 10-K or Quarterly Report on Form 10-Q, as the case
may be, most recently filed with the Trustee (or such reports of
the General Partner if filed by the Issuer with the Trustee in
lieu of filing its own reports) prior
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to the incurrence of such additional Debt and (ii) the increase
in Total Assets from the end of such quarter including, without
limitation, any increase in Total Assets resulting from the
incurrence of such additional Debt (such increase, together with
the Total Assets, is referred to as "Adjusted Total Assets").
In addition to the foregoing limitation on the incurrence
of Debt, the Issuer will not, and will not permit any Subsidiary
to, incur any Debt if the ratio of Consolidated Income Available
for Debt Service to the Annual Service Charge (in each case as
defined below) for the four consecutive fiscal quarters most
recently ended prior to the date on which such additional Debt is
to be incurred shall have been less than 1.5 to 1, on a pro forma
basis after giving effect to the incurrence of such Debt and to
the application of the proceeds therefrom, and calculated on the
assumption that (i) such Debt and any other Debt incurred by the
Issuer or its Subsidiaries since the first day of such
four-quarter period and the application of the proceeds
therefrom, including to refinance other Debt, had occurred at the
beginning of such period, (ii) the repayment or retirement of any
other Debt by the Issuer or its Subsidiaries since the first day
of such four-quarter period had been incurred, repaid or retired
at the beginning of such period (except that, in making such
computation, the amount of Debt under any revolving credit
facility shall be computed based upon the average daily balance
of such Debt during such period), (iii) the income earned on any
increase in Adjusted Total Assets since the end of such
four-quarter period had been earned, on an annualized basis,
during such period, and (iv) in the case of any acquisition or
disposition by the Issuer or any Subsidiary of any asset or group
of assets since the first day of such four-quarter period,
including, without limitation, by merger, stock purchase or sale,
or asset purchase or sale, such acquisition or disposition or any
related repayment of Debt had occurred as of the first day of
such period with the appropriate adjustments with respect to such
acquisition or disposition being included in such pro forma
calculation.
In addition to the foregoing limitations on the incurrence
of Debt, the Issuer will not, and will not permit any Subsidiary
to, incur any Debt secured by any mortgage, lien, charge, pledge,
encumbrance or security interest of any kind upon any of the
property of the Issuer or any Subsidiary ("Secured Debt"),
whether owned at the date of the Indenture or thereafter
acquired, if, immediately after giving effect to the incurrence
of such additional Secured Debt, the aggregate principal amount
of all outstanding Secured Debt is greater than 40% of Adjusted
Total Assets.
For purposes of the foregoing provisions regarding the
limitation on the incurrence of Debt, Debt shall be deemed to be
"incurred" by the Issuer or a Subsidiary whenever the Issuer and
its Subsidiary shall create, assume, guarantee or otherwise
become liable in respect thereof.
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Maintenance of Total Unencumbered Assets. The Issuer is
required to maintain Total Unencumbered Assets of not less than
165% of the aggregate outstanding principal amount of all
outstanding Unsecured Debt.
As used herein:
"Annual Service Charge" as of any date means the amount
which is expensed in any 12-month period for interest on Debt of
the Issuer and its Subsidiaries.
"Consolidated Income Available For Debt Service" for any
period means Consolidated Net Income plus amounts which have been
deducted for (a) interest on Debt of the Issuer and its
Subsidiaries, (b) provision for taxes of the Issuer and its
Subsidiaries based on income, (c) amortization of Debt discount,
(d) provisions for gains and losses on properties, (e)
depreciation and amortization, (f) the effect of any noncash
charge resulting from a change in accounting principles in
determining Consolidated Net Income for such period and (g)
amortization of deferred charges.
"Consolidated Net Income" for any period means the amount
of consolidated net income (or loss) of the Issuer and its
Subsidiaries for such period determined on a consolidated basis
in accordance with generally accepted accounting principles.
"Debt" of the Issuer or any Subsidiary means any
indebtedness of the Issuer or such Subsidiary, as applicable,
whether or not contingent, in respect of (i) borrowed money
evidenced by bonds, notes, Notes or similar instruments, (ii)
indebtedness secured by any mortgage, pledge, lien, charge,
encumbrance or any security interest existing on property owned
by the Issuer or such Subsidiary, (iii) the reimbursement
obligations, contingent or otherwise, in connection with any
letters of credit actually issued or amounts representing the
balance that constitutes an accrued expense or trade payable or
(iv) any lease of property by the Issuer or such Subsidiary as
lessee which is reflected in the Issuer's consolidated balance
sheet as a capitalized lease in accordance with generally
accepted accounting principles, in the case of items of
indebtedness under (i) through (iii) above to the extent that any
such items (other than letters of credit) would appear as a
liability on the Issuer's consolidated balance sheet in
accordance with generally accepted accounting principles, and
also includes, to the extent not otherwise included, any
obligation by the Issuer or such Subsidiary to be liable for, or
to pay, as obligor, guarantor or otherwise (other than for
purposes of collection in the ordinary course of business),
indebtedness of another person (other than the Issuer or any
Subsidiary).
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"Subsidiary" means a corporation, partnership or limited
liability company, a majority of the outstanding voting stock,
partnership interests or membership interests, as the case may
be, of which is owned or controlled, directly or indirectly, by
the Issuer or by one or more other Subsidiaries of the Issuer.
For the purposes of this definition, "voting stock" means stock
having the voting power for the election of directors, general
partners, managers or trustees, as the case may be, whether at
all times or only so long as no senior class of stock has such
voting power by reason of any contingency.
"Total Assets" as of any date means the sum of (i)
Undepreciated Real Estate Assets and (ii) all other assets of the
Issuer and its Subsidiaries on a consolidated basis determined in
accordance with generally accepted accounting principles (but
excluding intangibles and accounts receivable).
"Total Unencumbered Assets" as of any date means the sum
of (i) those Undepreciated Real Estate Assets which have not been
pledged, mortgaged or otherwise encumbered by the owner thereof
to secure Debt, excluding infrastructure assessment bonds, and
(ii) all other assets of the Issuer and its Subsidiaries
determined in accordance with generally accepted accounting
principles (but excluding intangibles and accounts receivable)
which have not been pledged, mortgaged or otherwise encumbered by
the owner thereof to secure Debt.
"Undepreciated Real Estate Assets" as of any date means
the cost (original cost plus capital improvements) of real estate
assets of the Issuer and its Subsidiaries on such date, before
depreciation and amortization, determined on a consolidated basis
in accordance with generally accepted accounting principles.
"Unsecured Debt" as of any date means Debt which is not
secured by any mortgage, lien, charge, pledge, encumbrance or
security interest of any kind upon any of the properties of the
Issuer or any Subsidiary.
(C) The Trustee shall not be obligated to monitor or
confirm, on a continuing basis or otherwise, the Issuer's compliance
with the covenants contained in this subsection or with respect to
reports or other documents filed under the Indenture; provided, however,
that nothing herein shall relieve the Trustee of any obligations to
monitor the Issuer's timely delivery of all reports and certificates
required under Sections 703 and 1005 of the Indenture and to fulfill its
obligations under Article Six of the Indenture.
(15) The Notes shall be issuable only as Registered Securities in
permanent global form (without coupons). Beneficial owners of interests
in the permanent global Notes may exchange such interests for Notes of
like tenor or any authorized form and
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denomination only in the manner provided in Section 305 of the
Indenture. DTC shall be the depository with respect to the permanent
global Note.
(16) The Notes shall not be issuable as Bearer Securities.
(17) Interest on any Note shall be payable only to the Person in
whose name that Note (or one or more predecessor Notes thereof) is
registered at the close of business on the Regular Record Date for such
interest.
(18) Sections 1402 and 1403 of the Indenture shall be applicable
to the Notes.
(19) The Notes shall not be issuable in definitive form except
under the circumstances described in Section 305 of the Indenture.
(20) Articles Sixteen and Seventeen of the Indenture shall not be
applicable to the Notes.
(21) The Issuer shall not pay Additional Amounts with respect to
the Notes as contemplated by Section 1009 of the Indenture.
(22) The Notes shall not be subordinated to any other debt of the
Issuer, and shall constitute senior unsecured obligations of the Issuer.
SECTION 102. FORM OF NOTE. The form of the Note is attached hereto as
Exhibit A.
ARTICLE II
MISCELLANEOUS
SECTION 201. DEFINITIONS. Capitalized terms used but not defined in this
Eleventh Supplemental Indenture shall have the meanings ascribed thereto in the
Indenture.
SECTION 202. CONFIRMATION OF INDENTURE. The Indenture, as heretofore
supplemented and amended by this Eleventh Supplemental Indenture, is in all
respects ratified and confirmed, and the Indenture, this Eleventh Supplemental
Indenture and all indentures supplemental thereto shall be read, taken and
construed as one and the same instrument.
SECTION 203. CONCERNING THE TRUSTEE. The Trustee assumes no duties,
responsibilities or liabilities by reason of this Eleventh Supplemental
Indenture other than as set forth in the Indenture and, in carrying out its
responsibilities hereunder, shall have all of the rights, protections and
immunities which it possesses under the Indenture.
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SECTION 204. GOVERNING LAW. This Eleventh Supplemental Indenture, the
Indenture and the Securities shall be governed by and construed in accordance
with the law of the State of New York.
SECTION 205. SEPARABILITY. In case any provision in this Eleventh
Supplemental Indenture shall for any reason be held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 206. COUNTERPARTS. This Eleventh Supplemental Indenture may be
executed in any number of counterparts each of which shall be an original, but
such counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Eleventh
Supplemental Indenture to be duly executed, and the corporate seal of the
General Partner to be hereunto affixed and attested, as of the day and year
first above written.
SPIEKER PROPERTIES, L.P.
By: Spieker Properties, Inc., as General Partner
By: /s/ Craig G. Vought
----------------------------------------------
Name: Craig G. Vought
Executive Vice President
and Chief Financial Officer
(seal)
Attest:
By: /s/ Stuart A. Rothstein
----------------------------
Name: Stuart A. Rothstein
Title: Assistant Secretary
SPIEKER PROPERTIES, INC.
By: /s/ Craig G. Vought
----------------------------------------------
Name: Craig G. Vought
Executive Vice President
and Chief Financial Officer
(seal)
Attest:
By: /s/ Stuart A. Rothstein
----------------------------
Name: Stuart A. Rothstein
Title: Assistant Secretary
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FIRST TRUST OF CALIFORNIA,
NATIONAL ASSOCIATION, as
Trustee
By: /s/ Jennifer Holder
----------------------------------------------
Name: Jennifer Holder
Title: Vice President
Attest:
By: /s/ Josephine Libuano
----------------------------
Name: Josephine Libunao
Title: Assistant Vice President
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STATE OF California )
COUNTY OF San Mateo ) ss.:
On the 8th day of December, 1997, before me personally came Craig G.
Vought to me known, who, being by me duly sworn, did depose and say that he is
the EVP and CFO of Spieker Properties, Inc., one of the entities described in
and which executed the above instrument; that he knows the corporate seal of
said corporation; that the seal affixed to the said instrument is such corporate
seal; that it was so affixed by authority of the corporation, and that he signed
his name thereto by like authority.
/s/ Melissa Trousdale
--------------------------------------------------
[Seal]
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EXHIBIT A
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TO A
NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR
ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OR TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
REGISTERED PRINCIPAL AMOUNT
NO.: R-1 $
CUSIP NO.: 848503 AH 1
SPIEKER PROPERTIES, L.P.
6.75% NOTE DUE JANUARY 15, 2008
SPIEKER PROPERTIES, L.P., a California limited partnership (the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or
registered assignee (the "Holder"), upon presentation, the principal sum of
$ on January 15, 2008, and to pay interest on the outstanding
principal amount thereon from January 27, 1998, or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, semi-annually
in arrears on January 15 and July 15 in each year (each an "Interest Payment
Date"), commencing July 15, 1998, and at the Stated Maturity, at the rate of
6.75% per annum, computed on the basis of a 360-day year comprised of twelve
30-day months, until the entire principal amount hereof is paid or duly provided
for. The interest so payable, and punctually paid or duly provided for on any
Interest Payment Date will, as provided in the Indenture (hereinafter defined),
be paid to the person in whose name this Note (the "Note") (or one or more
predecessor Notes) is registered at the close of business on the Regular Record
Date for such Interest Payment Date which shall be the 15th calendar day
preceding the applicable Interest Payment Date. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to the
Holder on such Regular Record Date, and may either be paid to the Person in
whose name this Note (or one or more predecessor Notes) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of
Notes not more than 15 days and not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the
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requirements of any securities exchange on which the Notes may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in the Indenture. Payments of the principal of, and interest on, this Note will
be made at the office or agency of the Trustee (hereinafter defined) maintained
for that purpose at 180 E. Fifth Street, St. Paul, Minnesota 55101, or elsewhere
as provided in the Indenture, in United States Dollars; provided, however, that
at the option of the Holder hereof, and upon written notice to the Trustee of
not less than five Business Days prior to the applicable Interest Payment Date,
payment of interest may be made by (i) check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register kept for
the Notes pursuant to Section 305 of the Indenture (the "Note Register") or (ii)
transfer to an account of the Person entitled thereto located inside the United
States.
This Note is one of a fully authorized issue of securities of the Issuer
issued as a series of securities issued and to be issued under an Indenture,
dated as of December 6, 1995 as supplemented by the Eleventh Supplemental
Indenture dated January 27, 1998 (collectively, the "Indenture"), among the
Issuer and First Trust of California, National Association (the "Trustee," which
term includes any successor trustee under the Indenture with respect to the
Notes), to which Indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Issuer, the Trustee and the Holders of
the Notes, and of the terms upon which the Notes are, and are to be,
authenticated and delivered. This Note is one of the series designated as the
"6.75% Notes due December 1, 2017," limited in the aggregate principal amount to
$150,000,000.
The Notes may be redeemed at any time at the option of the Issuer, in
whole or from time to time in part, at a redemption price (the "Redemption
Price") equal to the sum of (i) the principal amount of the Notes (or portion
thereof) being redeemed plus accrued interest thereon to the redemption date and
(ii) the Make-Whole Amount (as defined below), if any, with respect to such
Notes (or portion thereof).
If notice has been given as provided in the Indenture and funds for the
redemption of any Notes (or any portion thereof) called for redemption shall
have been made available on the redemption date referred to in such notice, such
Notes (or any portion thereof) will cease to bear interest on the date fixed for
such redemption specified in such notice and the only right of the Holders of
the Notes will be to receive payment of the Redemption Price, with respect to
such Notes or portion thereof so redeemed.
Notice of any optional redemption of any Notes (or any portion thereof)
will be given to Holders at their addresses, as shown in the Note Register, not
more than 60 nor less than 30 days prior to the date fixed for redemption. The
notice of redemption will specify, among other items, the Redemption Price and
the principal amount of the Notes held by such Holder to be redeemed.
The Issuer will notify the Trustee at least 45 days prior to giving
notice of redemption (or such shorter period as is satisfactory to the Trustee)
of the aggregate principal amount of Notes to be redeemed and their redemption
date. If less than all the Notes are to be redeemed at the option
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of the Issuer, the Trustee shall select, in such manner as it shall deem fair
and appropriate, the Notes to be redeemed in whole or in part.
In the event of redemption of the Notes in part only, a new Note for the amount
of the unredeemed portion hereof shall be issued in the name of the Holder
hereto, upon cancellation hereof.
As used herein:
"Make-Whole Amount" means, in connection with any optional
redemption or accelerated payment of any Notes, the excess, if any, of
(i) the aggregate present value as of the date of such redemption or
accelerated payment of each dollar of principal being redeemed or paid
and the amount of interest (exclusive of interest accrued to the date of
redemption or accelerated payment) that would have been payable in
respect of each such dollar if such redemption or accelerated payment
had not been made, determined by discounting, on a semi-annual basis,
such principal and interest at the Reinvestment Rate (determined on the
third Business Day preceding the date such notice of redemption is given
or declaration of acceleration is made) from the respective dates on
which such principal and interest would have been payable if such
redemption or accelerated payment had not been made, over (ii) the
aggregate principal amount of the Notes being redeemed or paid.
"Reinvestment Rate" means 0.25% plus the arithmetic mean of the
yields under the respective heading "Week Ending" published in the most
recent Statistical Release under the caption "Treasury Constant
Maturities" for the maturity (rounded to the nearest month)
corresponding to the remaining life to maturity, as of the payment date
of the principal being redeemed or paid. If no maturity exactly
corresponds to such maturity, yields for the two published maturities
most closely corresponding to such maturity shall be calculated pursuant
to the immediately preceding sentence and the Reinvestment Rate shall be
interpolated or extrapolated from such yields on a straight-line basis,
rounding in each of such relevant periods to the nearest month. For the
purpose of calculating the Reinvestment Rate, the most recent
Statistical Release published prior to the date of determination of the
Make-Whole Amount shall be used.
"Statistical Release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by
the Federal Reserve System and which establishes yields on actively
traded United States government securities adjusted to constant
maturities, or, if such statistical release is not published at the time
of any determination under the Indenture, then such other reasonably
comparable index which shall be designated by the Issuer.
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness of the Issuer on this Note and (b) certain restrictive
covenants and the related
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<PAGE> 16
defaults and Events of Default applicable to the Issuer, in each case, upon
compliance by the Issuer with certain conditions set forth in the Indenture,
which provisions apply to this Note.
The Issuer is subject to certain covenants contained in the Indenture
with respect to, and for the benefit of the Holders of, the Notes. The Trustee
shall not be obligated to monitor or confirm, on a continuing basis or
otherwise, the Issuer's compliance with the covenants contained in the Indenture
or with respect to reports or other certificates filed under the Indenture;
provided, however, that nothing herein shall relieve the Trustee of any
obligations to monitor the Issuer's timely delivery of all reports and
certificates required under Sections 703 and 1005 of the Indenture and to
fulfill its obligations under Article Six of the Indenture. If an Event of
Default as defined in the Indenture with respect to the Notes shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Note shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Notes, the Holders of not less than a majority in principal amount of the Notes
at the time Outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and offered
the Trustee reasonable indemnity and shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer of
indemnity and the Trustee shall not have received from the Holders of a majority
in principal amount of the Notes at the time Outstanding a direction
inconsistent with such request. The foregoing shall not apply to any suit
instituted by the Holder of this Note for the enforcement of any payment of
principal hereof or any interest on or after the respective due dates expressed
herein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer and the Trustee with the consent of the Holders of not less
than a majority in principal amount of the Outstanding Notes. The Indenture also
contains provisions permitting the Holders of not less than a majority in
principal amount of the Notes at the time Outstanding, on behalf of the Holders
of all Notes, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange herefor or
in lieu hereof, whether or not notation of such consent or waiver is made upon
this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of, and interest on, this Note
at the times, place and rate, and in the coin or currency, herein prescribed.
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<PAGE> 17
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable in the Note Register, upon
surrender of this Note for registration of transfer at the office or agency of
the Issuer in any Place of Payment where the principal of, and interest on, this
Note are payable, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Issuer and the Security Registrar for the
Notes duly executed by, the Holder hereof or his attorney duly authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Notes of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
the Notes are exchangeable for a like aggregate principal amount of Notes of
this series of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Issuer, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE NOTES INCLUDING THIS NOTE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE
OF NEW YORK.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Issuer has caused "CUSIP" numbers to be
printed on the Notes as a convenience to the Holders of the Notes. No
representation is made as to the correctness or accuracy of such CUSIP numbers
as printed on the Notes, and reliance may be placed only on the other
identification numbers printed hereon.
Unless the certificate of authentication hereon has been executed by or
on behalf of the Trustee by manual signature, this Note shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any purposes.
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<PAGE> 18
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its corporate seal this ___ day of _____________.
SPIEKER PROPERTIES, L.P.
By: Spieker Properties, Inc., as
General Partner
By:
----------------------------------------------
Name: Craig G. Vought
Executive Vice President
and Chief Financial Officer
(SEAL)
Attest:
By:
----------------------------
Name: Stuart A. Rothstein
Title: Vice President - Finance
and Assistant Secretary
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<PAGE> 19
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated "6.75% Notes due
January 15, 2008" referred to in the within-mentioned Indenture.
FIRST TRUST OF CALIFORNIA,
NATIONAL ASSOCIATION,
as Trustee
By:
----------------------------
Name:
Title:
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<PAGE> 20
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers to
-----------------------------------------------------------------------------
(Insert Social Security number or other identifying number of assignee)
-----------------------------------------------------------------------------
(Please print or typewrite name and address, including zip, code of assignee)
-----------------------------------------------------------------------------
the within Note of Spieker Properties, L.P. and hereby does irrevocably
constitute and appoint
- -----------------------------------------------------------------------------
Attorney to transfer said Note on the books of the within-named Issuer with full
power of substitution in the premises.
Dated:
------------ -----------------------------------
-----------------------------------
Signature(s) must be guaranteed by an eligible Guarantor Institution (banks,
stock brokers, savings and loan associations and credit unions) with membership
in an approved signature guarantee medallion program pursuant to Securities and
Exchange Commission Rule 17Ad-15.
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Note in every particular, without
alteration or enlargement or any change whatever.
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<PAGE> 1
EXHIBIT 4.15
TWELFTH SUPPLEMENTAL INDENTURE
TWELFTH SUPPLEMENTAL INDENTURE, dated as of February 2, 1998 (this
"Twelfth Supplemental Indenture"), among Spieker Properties, Inc., a
corporation organized under the laws of Maryland (the "General Partner"),
Spieker Properties, L.P., a limited partnership organized under the laws of
California (the "Issuer"), and First Trust of California, National Association,
as Trustee (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Issuer, the General Partner and State Street Bank and Trust
Company ("State Street") executed and delivered an Indenture, dated as of
December 6, 1995 (as supplemented hereby, the "Indenture"), to provide for the
issuance by the Issuer from time to time of debt securities evidencing its
unsecured indebtedness;
WHEREAS, pursuant to the Ninth Supplemental Indenture, the Issuer and
the General Partner appointed the Trustee as trustee with respect to the series
of securities established by that Supplemental Indenture and future series of
securities under the Indenture, and the Trustee accepted such appointment;
WHEREAS, pursuant to the Ninth Supplemental Indenture, State Street
remains trustee of all series of securities prior to those established by the
Ninth Supplemental Indenture;
WHEREAS, pursuant to Board Resolution, the Issuer has authorized the
issuance of $125,000,000 of its 6.875% Notes Due February 1, 2005 (the "Notes");
WHEREAS, the Issuer desires to establish the terms of the Notes in
accordance with Section 301 of the Indenture and to establish the form of the
Notes in accordance with Section 201 of the Indenture.
ARTICLE 1
TERMS
SECTION 101. TERMS OF NOTES. The following terms relating to the Notes
are hereby established:
(1) The Notes shall constitute a series of Securities having the
title "6.875% Notes Due February 1, 2005."
(2) The aggregate principal amount of the Notes that may be
authenticated and delivered under the Indenture (except for Notes
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of,
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<PAGE> 2
other Notes pursuant to Sections 304, 305, 306, 906, 1107 or 1305 of the
Indenture) shall be up to $125,000,000.
(3) The entire outstanding principal of the Notes shall be
payable on February 1, 2005 (the "Stated Maturity Date").
(4) The rate at which the Notes shall bear interest shall be
6.875%; the date from which interest shall accrue shall be February 2,
1998; the Interest Payment Dates for the Notes on which interest will be
payable shall be February 1 and August 1 in each year, beginning August
1, 1998; the Regular Record Dates for the interest payable on the Notes
on any Interest Payment Date shall be the 15th calendar day preceding
the applicable Interest Payment Date; and the basis upon which interest
shall be calculated shall be that of a 360-day year consisting of twelve
30-day months.
(5) The Place of Payment where the principal of and interest on
the Notes shall be payable and Notes may be surrendered for the
registration of transfer or exchange shall be the Corporate Trust Office
of the Trustee in St. Paul, Minnesota. The place where notices or
demands to or upon the Issuer in respect of the Notes and the Indenture
may be served shall be the corporate trust office of the Trustee at One
California Street, Suite 400, San Francisco, California 94111.
(6) (A) The Notes may be redeemed at any time at the option of
the Issuer, in whole, or from time to time in part, at a redemption
price equal to the sum of (i) the principal amount of the Notes (or
portion thereof) being redeemed plus accrued interest thereon to the
redemption date and (ii) the Make-Whole Amount (as defined below), if
any, with respect to such Notes (or portion thereof) (the "Redemption
Price").
If notice has been given as provided in the Indenture and funds
for the redemption of any Notes (or any portion thereof) called for
redemption shall have been made available on the redemption date
referred to in such notice, such Notes (or any portion thereof) will
cease to bear interest on the date fixed for such redemption specified
in such notice and the only right of the Holders of the Notes will be to
receive payment of the Redemption Price, with respect to such Notes or
portion thereof so redeemed.
Notice of any optional redemption of any Notes (or any portion
thereof) will be given to Holders at their addresses, as shown in the
security register for the Notes, not more than 60 nor less than 30 days
prior to the date fixed for redemption. The notice of redemption will
specify, among other items, the Redemption Price and the principal
amount of the Notes held by such Holder to be redeemed. On the third
Business Day preceding the date notice of redemption is given, the
Company will notify the Trustee of the Redemption Price and the Trustee
may rely and shall be fully protected in acting upon the determination
of the Company as to such Redemption Price.
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<PAGE> 3
The Issuer will notify the Trustee in writing at least 45 days
prior to giving notice of redemption (or such shorter period as is
satisfactory to the Trustee in its sole discretion) of the aggregate
principal amount of Notes to be redeemed and their redemption date. If
less than all the Notes are to be redeemed at the option of the Issuer,
the Trustee shall select by lot, the Notes to be redeemed in whole or in
part.
In the event of redemption of the Notes in part only, a new Note
for the amount of the unredeemed portion thereof shall be issued in the
name of the Holder thereto, upon cancellation thereof.
(B) As used herein:
"Make-Whole Amount" means, in connection with any optional
redemption or accelerated payment of any Notes, the excess, if any, of
(i) the aggregate present value as of the date of such redemption or
accelerated payment of each dollar of principal being redeemed or paid
and the amount of interest (exclusive of interest accrued to the date of
redemption or accelerated payment) that would have been payable in
respect of each such dollar if such redemption or accelerated payment
had not been made, determined by discounting, on a semi-annual basis,
such principal and interest at the Reinvestment Rate (determined on the
third Business Day preceding the date such notice of redemption is given
or declaration of acceleration is made) from the respective dates on
which such principal and interest would have been payable if such
redemption or accelerated payment had not been made, over (ii) the
aggregate principal amount of the Notes being redeemed or paid.
"Reinvestment Rate" means 0.25% plus the arithmetic mean of the
yields under the respective heading "Week Ending" published in the most
recent Statistical Release under the caption "Treasury Constant
Maturities" for the maturity (rounded to the nearest month)
corresponding to the remaining life to maturity, as of the payment date
of the principal being redeemed or paid. If no maturity exactly
corresponds to such maturity, yields for the two published maturities
most closely corresponding to such maturity shall be calculated pursuant
to the immediately preceding sentence and the Reinvestment Rate shall be
interpolated or extrapolated from such yields on a straight-line basis,
rounding in each of such relevant periods to the nearest month. For the
purpose of calculating the Reinvestment Rate, the most recent
Statistical Release published prior to the date of determination of the
Make-Whole Amount shall be used.
"Statistical Release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by
the Federal Reserve System and which establishes yields on actively
traded United States government securities adjusted to constant
maturities, or, if such statistical release is not published at the time
of any determination under the Indenture, then such other reasonably
comparable index which shall be designated by the Issuer.
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<PAGE> 4
(7) The Notes shall not be redeemable at the option of any Holder
thereof, upon the occurrence of any particular circumstances or
otherwise. The Notes will not have the benefit of any sinking fund.
(8) The Notes shall be issuable in denominations of $1,000 and
any integral multiple thereof.
(9) The Trustee shall also be the Security Registrar and Paying
Agent for the Notes.
(10) The entire outstanding principal amount plus the Make-Whole
Amount of the Notes shall be payable upon declaration of acceleration of
the maturity thereof pursuant to Section 502 of the Indenture.
(11) Payments of the principal of and interest on the Notes shall
be made in U.S. Dollars, and the Notes shall be denominated in U.S.
Dollars.
(12) The Notes will be payable on the Stated Maturity Date in an
amount equal to the principal amount thereof plus any unpaid interest
accrued to the Stated Maturity Date.
(13) The Holders of the Notes shall have no special rights in
addition to those provided in the Indenture upon the occurrence of any
particular events.
(14) (A) There shall be no deletions from, modifications of or
additions to the Events of Default with respect to the Notes set forth
in the Indenture.
(B) There shall be the following additions to the covenants
set forth in the Indenture with respect to the Notes, which shall be
effective only for so long as any of the Notes are Outstanding:
Limitations On Incurrence of Debt. The Issuer will not,
and will not permit any Subsidiary to, incur any Debt (as defined
below), other than inter-company debt representing Debt to which
the only parties are Spieker Properties, Inc., a Maryland
corporation (the "General Partner"), the Issuer and any of their
Subsidiaries (but only so long as such Debt is held solely by any
of the General Partner, the Issuer and any Subsidiary) that is
subordinate in right of payment to the Notes if, immediately
after giving effect to the incurrence of such additional Debt,
the aggregate principal amount of all outstanding Debt of the
Issuer and its Subsidiaries on a consolidated basis is greater
than 60% of the sum of (i) Total Assets (as defined below) as of
the end of the calendar quarter covered in the Issuer's Annual
Report on Form 10-K or Quarterly Report on Form 10-Q, as the case
may be, most recently filed with the Trustee (or such reports of
the General Partner if filed by the Issuer with the Trustee in
lieu of filing its own reports) prior
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<PAGE> 5
to the incurrence of such additional Debt and (ii) the increase
in Total Assets from the end of such quarter including, without
limitation, any increase in Total Assets resulting from the
incurrence of such additional Debt (such increase, together with
the Total Assets, is referred to as "Adjusted Total Assets").
In addition to the foregoing limitation on the incurrence
of Debt, the Issuer will not, and will not permit any Subsidiary
to, incur any Debt if the ratio of Consolidated Income Available
for Debt Service to the Annual Service Charge (in each case as
defined below) for the four consecutive fiscal quarters most
recently ended prior to the date on which such additional Debt is
to be incurred shall have been less than 1.5 to 1, on a pro forma
basis after giving effect to the incurrence of such Debt and to
the application of the proceeds therefrom, and calculated on the
assumption that (i) such Debt and any other Debt incurred by the
Issuer or its Subsidiaries since the first day of such
four-quarter period and the application of the proceeds
therefrom, including to refinance other Debt, had occurred at the
beginning of such period, (ii) the repayment or retirement of any
other Debt by the Issuer or its Subsidiaries since the first day
of such four-quarter period had been incurred, repaid or retired
at the beginning of such period (except that, in making such
computation, the amount of Debt under any revolving credit
facility shall be computed based upon the average daily balance
of such Debt during such period), (iii) the income earned on any
increase in Adjusted Total Assets since the end of such
four-quarter period had been earned, on an annualized basis,
during such period, and (iv) in the case of any acquisition or
disposition by the Issuer or any Subsidiary of any asset or group
of assets since the first day of such four-quarter period,
including, without limitation, by merger, stock purchase or sale,
or asset purchase or sale, such acquisition or disposition or any
related repayment of Debt had occurred as of the first day of
such period with the appropriate adjustments with respect to such
acquisition or disposition being included in such pro forma
calculation.
In addition to the foregoing limitations on the incurrence
of Debt, the Issuer will not, and will not permit any Subsidiary
to, incur any Debt secured by any mortgage, lien, charge, pledge,
encumbrance or security interest of any kind upon any of the
property of the Issuer or any Subsidiary ("Secured Debt"),
whether owned at the date of the Indenture or thereafter
acquired, if, immediately after giving effect to the incurrence
of such additional Secured Debt, the aggregate principal amount
of all outstanding Secured Debt is greater than 40% of Adjusted
Total Assets.
For purposes of the foregoing provisions regarding the
limitation on the incurrence of Debt, Debt shall be deemed to be
"incurred" by the Issuer or a Subsidiary whenever the Issuer and
its Subsidiary shall create, assume, guarantee or otherwise
become liable in respect thereof.
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<PAGE> 6
Maintenance of Total Unencumbered Assets. The Issuer is
required to maintain Total Unencumbered Assets of not less than
165% of the aggregate outstanding principal amount of all
outstanding Unsecured Debt.
As used herein:
"Annual Service Charge" as of any date means the amount
which is expensed in any 12-month period for interest on Debt of
the Issuer and its Subsidiaries.
"Consolidated Income Available For Debt Service" for any
period means Consolidated Net Income plus amounts which have been
deducted for (a) interest on Debt of the Issuer and its
Subsidiaries, (b) provision for taxes of the Issuer and its
Subsidiaries based on income, (c) amortization of Debt discount,
(d) provisions for gains and losses on properties, (e)
depreciation and amortization, (f) the effect of any noncash
charge resulting from a change in accounting principles in
determining Consolidated Net Income for such period and (g)
amortization of deferred charges.
"Consolidated Net Income" for any period means the amount
of consolidated net income (or loss) of the Issuer and its
Subsidiaries for such period determined on a consolidated basis
in accordance with generally accepted accounting principles.
"Debt" of the Issuer or any Subsidiary means any
indebtedness of the Issuer or such Subsidiary, as applicable,
whether or not contingent, in respect of (i) borrowed money
evidenced by bonds, notes, Notes or similar instruments, (ii)
indebtedness secured by any mortgage, pledge, lien, charge,
encumbrance or any security interest existing on property owned
by the Issuer or such Subsidiary, (iii) the reimbursement
obligations, contingent or otherwise, in connection with any
letters of credit actually issued or amounts representing the
balance that constitutes an accrued expense or trade payable or
(iv) any lease of property by the Issuer or such Subsidiary as
lessee which is reflected in the Issuer's consolidated balance
sheet as a capitalized lease in accordance with generally
accepted accounting principles, in the case of items of
indebtedness under (i) through (iii) above to the extent that any
such items (other than letters of credit) would appear as a
liability on the Issuer's consolidated balance sheet in
accordance with generally accepted accounting principles, and
also includes, to the extent not otherwise included, any
obligation by the Issuer or such Subsidiary to be liable for, or
to pay, as obligor, guarantor or otherwise (other than for
purposes of collection in the ordinary course of business),
indebtedness of another person (other than the Issuer or any
Subsidiary).
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<PAGE> 7
"Subsidiary" means a corporation, partnership or limited
liability company, a majority of the outstanding voting stock,
partnership interests or membership interests, as the case may
be, of which is owned or controlled, directly or indirectly, by
the Issuer or by one or more other Subsidiaries of the Issuer.
For the purposes of this definition, "voting stock" means stock
having the voting power for the election of directors, general
partners, managers or trustees, as the case may be, whether at
all times or only so long as no senior class of stock has such
voting power by reason of any contingency.
"Total Assets" as of any date means the sum of (i)
Undepreciated Real Estate Assets and (ii) all other assets of the
Issuer and its Subsidiaries on a consolidated basis determined in
accordance with generally accepted accounting principles (but
excluding intangibles and accounts receivable).
"Total Unencumbered Assets" as of any date means the sum
of (i) those Undepreciated Real Estate Assets which have not been
pledged, mortgaged or otherwise encumbered by the owner thereof
to secure Debt, excluding infrastructure assessment bonds, and
(ii) all other assets of the Issuer and its Subsidiaries
determined in accordance with generally accepted accounting
principles (but excluding intangibles and accounts receivable)
which have not been pledged, mortgaged or otherwise encumbered by
the owner thereof to secure Debt.
"Undepreciated Real Estate Assets" as of any date means
the cost (original cost plus capital improvements) of real estate
assets of the Issuer and its Subsidiaries on such date, before
depreciation and amortization, determined on a consolidated basis
in accordance with generally accepted accounting principles.
"Unsecured Debt" as of any date means Debt which is not
secured by any mortgage, lien, charge, pledge, encumbrance or
security interest of any kind upon any of the properties of the
Issuer or any Subsidiary.
(C) The Trustee shall not be obligated to monitor or
confirm, on a continuing basis or otherwise, the Issuer's compliance
with the covenants contained in this subsection or with respect to
reports or other documents filed under the Indenture; provided, however,
that nothing herein shall relieve the Trustee of any obligations to
monitor the Issuer's timely delivery of all reports and certificates
required under Sections 703 and 1005 of the Indenture and to fulfill its
obligations under Article Six of the Indenture.
(15) The Notes shall be issuable only as Registered Securities in
permanent global form (without coupons). Beneficial owners of interests
in the permanent global Notes may exchange such interests for Notes of
like tenor or any authorized form and
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<PAGE> 8
denomination only in the manner provided in Section 305 of the
Indenture. DTC shall be the depository with respect to the permanent
global Note.
(16) The Notes shall not be issuable as Bearer Securities.
(17) Interest on any Note shall be payable only to the Person in
whose name that Note (or one or more predecessor Notes thereof) is
registered at the close of business on the Regular Record Date for such
interest.
(18) Sections 1402 and 1403 of the Indenture shall be applicable
to the Notes.
(19) The Notes shall not be issuable in definitive form except
under the circumstances described in Section 305 of the Indenture.
(20) Articles Sixteen and Seventeen of the Indenture shall not be
applicable to the Notes.
(21) The Issuer shall not pay Additional Amounts with respect to
the Notes as contemplated by Section 1009 of the Indenture.
(22) The Notes shall not be subordinated to any other debt of the
Issuer, and shall constitute senior unsecured obligations of the Issuer.
SECTION 102. FORM OF NOTE. The form of the Note is attached hereto as
Exhibit A.
ARTICLE II
MISCELLANEOUS
SECTION 201. DEFINITIONS. Capitalized terms used but not defined in this
Twelfth Supplemental Indenture shall have the meanings ascribed thereto in the
Indenture.
SECTION 202. CONFIRMATION OF INDENTURE. The Indenture, as heretofore
supplemented and amended by this Twelfth Supplemental Indenture, is in all
respects ratified and confirmed, and the Indenture, this Twelfth Supplemental
Indenture and all indentures supplemental thereto shall be read, taken and
construed as one and the same instrument.
SECTION 203. CONCERNING THE TRUSTEE. The Trustee assumes no duties,
responsibilities or liabilities by reason of this Twelfth Supplemental
Indenture other than as set forth in the Indenture and, in carrying out its
responsibilities hereunder, shall have all of the rights, protections and
immunities which it possesses under the Indenture.
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<PAGE> 9
SECTION 204. GOVERNING LAW. This Twelfth Supplemental Indenture, the
Indenture and the Securities shall be governed by and construed in accordance
with the law of the State of New York.
SECTION 205. SEPARABILITY. In case any provision in this Twelfth
Supplemental Indenture shall for any reason be held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 206. COUNTERPARTS. This Twelfth Supplemental Indenture may be
executed in any number of counterparts each of which shall be an original, but
such counterparts shall together constitute but one and the same instrument.
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<PAGE> 10
IN WITNESS WHEREOF, the parties hereto have caused this Twelfth
Supplemental Indenture to be duly executed, and the corporate seal of the
General Partner to be hereunto affixed and attested, as of the day and year
first above written.
SPIEKER PROPERTIES, L.P.
By: Spieker Properties, Inc., as General Partner
By: /s/ Craig G. Vought
----------------------------------------------
Name: Craig G. Vought
Title: Executive Vice President
and Chief Financial Officer
(seal)
Attest:
By: /s/ Stuart A. Rothstein
----------------------------
Name: Stuart A. Rothstein
Title: Assistant Secretary
SPIEKER PROPERTIES, INC.
By: /s/ Craig G. Vought
----------------------------------------------
Name: Craig G. Vought
Title: Executive Vice President
and Chief Financial Officer
(seal)
Attest:
By: /s/ Stuart A. Rothstein
----------------------------
Name: Stuart A. Rothstein
Title: Assistant Secretary
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<PAGE> 11
FIRST TRUST OF CALIFORNIA,
NATIONAL ASSOCIATION, as
Trustee
By: /s/ Jennifer Holder
----------------------------------------------
Name: Jennifer Holder
Title: Vice President
Attest:
By: /s/ Josephine Libunao
----------------------------
Name: Josephine Libunao
Title: Assistant Vice President
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<PAGE> 12
STATE OF California )
COUNTY OF San Mateo ) ss.:
On February 2, 1998, before me personally came Craig G. Vought to me
known, who, being by me duly sworn, did depose and say that he is the EVP and
CFO of Spieker Properties, Inc., one of the entities described in and which
executed the above instrument; that he knows the corporate seal of said
corporation; that the seal affixed to the said instrument is such corporate
seal; that it was so affixed by authority of the corporation, and that he signed
his name thereto by like authority.
/s/ Melissa Trousdale
--------------------------------------------------
[Seal]
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<PAGE> 13
EXHIBIT A
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TO A
NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR
ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OR TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
REGISTERED PRINCIPAL AMOUNT
NO.: R-1 $
CUSIP NO.: 848503 AJ 1
SPIEKER PROPERTIES, L.P.
6.875% NOTE DUE FEBRUARY 1, 2005
SPIEKER PROPERTIES, L.P., a California limited partnership (the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or
registered assignee (the "Holder"), upon presentation, the principal sum of
$ on February 1, 2005, and to pay interest on the outstanding
principal amount thereon from February 2, 1998, or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, semi-annually
in arrears on February 1 and August 1, in each year (each an "Interest Payment
Date"), commencing August 1, 1998, and at the Stated Maturity, at the rate of
6.875% per annum, computed on the basis of a 360-day year comprised of twelve
30-day months, until the entire principal amount hereof is paid or duly provided
for. The interest so payable, and punctually paid or duly provided for on any
Interest Payment Date will, as provided in the Indenture (hereinafter defined),
be paid to the person in whose name this Note (the "Note") (or one or more
predecessor Notes) is registered at the close of business on the Regular Record
Date for such Interest Payment Date which shall be the 15th calendar day
preceding the applicable Interest Payment Date. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to the
Holder on such Regular Record Date, and may either be paid to the Person in
whose name this Note (or one or more predecessor Notes) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of
Notes not more than 15 days and not less than 10 days prior to such Special
Record
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<PAGE> 14
Date, or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Notes may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in the Indenture. Payments of the principal of, and interest on,
this Note will be made at the office or agency of the Trustee (hereinafter
defined) maintained for that purpose at 180 E. Fifth Street, St. Paul, Minnesota
55101, or elsewhere as provided in the Indenture, in United States Dollars;
provided, however, that at the option of the Holder hereof, and upon written
notice to the Trustee of not less than five Business Days prior to the
applicable Interest Payment Date, payment of interest may be made by (i) check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register kept for the Notes pursuant to Section 305 of
the Indenture (the "Note Register") or (ii) transfer to an account of the Person
entitled thereto located inside the United States.
This Note is one of a fully authorized issue of securities of the Issuer
issued as a series of securities issued and to be issued under an Indenture,
dated as of December 6, 1995 as supplemented by the Twelfth Supplemental
Indenture dated February 2, 1998 (collectively, the "Indenture"), among the
Issuer and First Trust of California, National Association (the "Trustee," which
term includes any successor trustee under the Indenture with respect to the
Notes), to which Indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Issuer, the Trustee and the Holders of
the Notes, and of the terms upon which the Notes are, and are to be,
authenticated and delivered. This Note is one of the series designated as the
"6.875% Notes due February 1, 2005," limited in the aggregate principal amount
to $125,000,000.
The Notes may be redeemed at any time at the option of the Issuer, in
whole or from time to time in part, at a redemption price (the "Redemption
Price") equal to the sum of (i) the principal amount of the Notes (or portion
thereof) being redeemed plus accrued interest thereon to the redemption date and
(ii) the Make-Whole Amount (as defined below), if any, with respect to such
Notes (or portion thereof).
If notice has been given as provided in the Indenture and funds for the
redemption of any Notes (or any portion thereof) called for redemption shall
have been made available on the redemption date referred to in such notice, such
Notes (or any portion thereof) will cease to bear interest on the date fixed for
such redemption specified in such notice and the only right of the Holders of
the Notes will be to receive payment of the Redemption Price, with respect to
such Notes or portion thereof so redeemed.
Notice of any optional redemption of any Notes (or any portion thereof)
will be given to Holders at their addresses, as shown in the Note Register, not
more than 60 nor less than 30 days prior to the date fixed for redemption. The
notice of redemption will specify, among other items, the Redemption Price and
the principal amount of the Notes held by such Holder to be redeemed.
The Issuer will notify the Trustee at least 45 days prior to giving
notice of redemption (or such shorter period as is satisfactory to the Trustee)
of the aggregate principal amount of Notes to be redeemed and their redemption
date. If less than all the Notes are to be redeemed at the option
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<PAGE> 15
of the Issuer, the Trustee shall select, in such manner as it shall deem fair
and appropriate, the Notes to be redeemed in whole or in part.
In the event of redemption of the Notes in part only, a new Note for the amount
of the unredeemed portion hereof shall be issued in the name of the Holder
hereto, upon cancellation hereof.
As used herein:
"Make-Whole Amount" means, in connection with any optional
redemption or accelerated payment of any Notes, the excess, if any, of
(i) the aggregate present value as of the date of such redemption or
accelerated payment of each dollar of principal being redeemed or paid
and the amount of interest (exclusive of interest accrued to the date of
redemption or accelerated payment) that would have been payable in
respect of each such dollar if such redemption or accelerated payment
had not been made, determined by discounting, on a semi-annual basis,
such principal and interest at the Reinvestment Rate (determined on the
third Business Day preceding the date such notice of redemption is given
or declaration of acceleration is made) from the respective dates on
which such principal and interest would have been payable if such
redemption or accelerated payment had not been made, over (ii) the
aggregate principal amount of the Notes being redeemed or paid.
"Reinvestment Rate" means 0.25% plus the arithmetic mean of the
yields under the respective heading "Week Ending" published in the most
recent Statistical Release under the caption "Treasury Constant
Maturities" for the maturity (rounded to the nearest month)
corresponding to the remaining life to maturity, as of the payment date
of the principal being redeemed or paid. If no maturity exactly
corresponds to such maturity, yields for the two published maturities
most closely corresponding to such maturity shall be calculated pursuant
to the immediately preceding sentence and the Reinvestment Rate shall be
interpolated or extrapolated from such yields on a straight-line basis,
rounding in each of such relevant periods to the nearest month. For the
purpose of calculating the Reinvestment Rate, the most recent
Statistical Release published prior to the date of determination of the
Make-Whole Amount shall be used.
"Statistical Release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by
the Federal Reserve System and which establishes yields on actively
traded United States government securities adjusted to constant
maturities, or, if such statistical release is not published at the time
of any determination under the Indenture, then such other reasonably
comparable index which shall be designated by the Issuer.
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness of the Issuer on this Note and (b) certain restrictive
covenants and the related
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<PAGE> 16
defaults and Events of Default applicable to the Issuer, in each case, upon
compliance by the Issuer with certain conditions set forth in the Indenture,
which provisions apply to this Note.
The Issuer is subject to certain covenants contained in the Indenture
with respect to, and for the benefit of the Holders of, the Notes. The Trustee
shall not be obligated to monitor or confirm, on a continuing basis or
otherwise, the Issuer's compliance with the covenants contained in the Indenture
or with respect to reports or other certificates filed under the Indenture;
provided, however, that nothing herein shall relieve the Trustee of any
obligations to monitor the Issuer's timely delivery of all reports and
certificates required under Sections 703 and 1005 of the Indenture and to
fulfill its obligations under Article Six of the Indenture. If an Event of
Default as defined in the Indenture with respect to the Notes shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Note shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Notes, the Holders of not less than a majority in principal amount of the Notes
at the time Outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and offered
the Trustee reasonable indemnity and shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer of
indemnity and the Trustee shall not have received from the Holders of a majority
in principal amount of the Notes at the time Outstanding a direction
inconsistent with such request. The foregoing shall not apply to any suit
instituted by the Holder of this Note for the enforcement of any payment of
principal hereof or any interest on or after the respective due dates expressed
herein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer and the Trustee with the consent of the Holders of not less
than a majority in principal amount of the Outstanding Notes. The Indenture also
contains provisions permitting the Holders of not less than a majority in
principal amount of the Notes at the time Outstanding, on behalf of the Holders
of all Notes, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange herefor or
in lieu hereof, whether or not notation of such consent or waiver is made upon
this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of, and interest on, this Note
at the times, place and rate, and in the coin or currency, herein prescribed.
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<PAGE> 17
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable in the Note Register, upon
surrender of this Note for registration of transfer at the office or agency of
the Issuer in any Place of Payment where the principal of, and interest on, this
Note are payable, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Issuer and the Security Registrar for the
Notes duly executed by, the Holder hereof or his attorney duly authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Notes of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
the Notes are exchangeable for a like aggregate principal amount of Notes of
this series of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Issuer, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE NOTES INCLUDING THIS NOTE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE
OF NEW YORK.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Issuer has caused "CUSIP" numbers to be
printed on the Notes as a convenience to the Holders of the Notes. No
representation is made as to the correctness or accuracy of such CUSIP numbers
as printed on the Notes, and reliance may be placed only on the other
identification numbers printed hereon.
Unless the certificate of authentication hereon has been executed by or
on behalf of the Trustee by manual signature, this Note shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any purposes.
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<PAGE> 18
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its corporate seal this ___ day of ___________, 1998.
SPIEKER PROPERTIES, L.P.
By: Spieker Properties, Inc., as
General Partner
By:
----------------------------------------------
Name: Craig G. Vought
Executive Vice President
and Chief Financial Officer
(SEAL)
Attest:
By:
----------------------------
Name: Stuart A. Rothstein
Title: Vice President - Finance
and Assistant Secretary
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<PAGE> 19
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated "6.875% Notes due
February 1, 2005" referred to in the within-mentioned Indenture.
FIRST TRUST OF CALIFORNIA,
NATIONAL ASSOCIATION,
as Trustee
By:
----------------------------
Name:
Title:
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<PAGE> 20
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers to
-----------------------------------------------------------------------------
(Insert Social Security number or other identifying number of assignee)
-----------------------------------------------------------------------------
(Please print or typewrite name and address, including zip, code of assignee)
-----------------------------------------------------------------------------
the within Note of Spieker Properties, L.P. and hereby does irrevocably
constitute and appoint
- -----------------------------------------------------------------------------
Attorney to transfer said Note on the books of the within-named Issuer with full
power of substitution in the premises.
Dated:
------------ -----------------------------------
-----------------------------------
Signature(s) must be guaranteed by an eligible Guarantor Institution (banks,
stock brokers, savings and loan associations and credit unions) with membership
in an approved signature guarantee medallion program pursuant to Securities and
Exchange Commission Rule 17Ad-15.
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Note in every particular, without
alteration or enlargement or any change whatever.
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<PAGE> 1
EXHIBIT 4.16
THIRTEENTH SUPPLEMENTAL INDENTURE
THIRTEENTH SUPPLEMENTAL INDENTURE, dated as of February 2, 1998 (this
"Thirteenth Supplemental Indenture"), among Spieker Properties, Inc., a
corporation organized under the laws of Maryland (the "General Partner"),
Spieker Properties, L.P., a limited partnership organized under the laws of
California (the "Issuer"), and First Trust of California, National Association,
as Trustee (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Issuer, the General Partner and State Street Bank and Trust
Company ("State Street") executed and delivered an Indenture, dated as of
December 6, 1995 (as supplemented hereby, the "Indenture"), to provide for the
issuance by the Issuer from time to time of debt securities evidencing its
unsecured indebtedness;
WHEREAS, pursuant to the Ninth Supplemental Indenture, the Issuer and
the General Partner appointed the Trustee as trustee with respect to the series
of securities established by that Supplemental Indenture and future series of
securities under the Indenture, and the Trustee accepted such appointment;
WHEREAS, pursuant to the Ninth Supplemental Indenture, State Street
remains trustee of all series of securities prior to those established by the
Ninth Supplemental Indenture;
WHEREAS, pursuant to Board Resolution, the Issuer has authorized the
issuance of $1,500,000 of its 7% Notes Due February 1, 2007 (the "Notes");
WHEREAS, the Issuer desires to establish the terms of the Notes in
accordance with Section 301 of the Indenture and to establish the form of the
Notes in accordance with Section 201 of the Indenture.
ARTICLE 1
TERMS
SECTION 101. TERMS OF NOTES. The following terms relating to the Notes
are hereby established:
(1) The Notes shall constitute a series of Securities having the
title "7% Notes Due February 1, 2007."
(2) The aggregate principal amount of the Notes that may be
authenticated and delivered under the Indenture (except for Notes
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of,
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<PAGE> 2
other Notes pursuant to Sections 304, 305, 306, 906, 1107 or 1305 of the
Indenture) shall be up to $1,500,000.
(3) The entire outstanding principal of the Notes shall be payable
on February 1, 2007 (the "Stated Maturity Date").
(4) The rate at which the Notes shall bear interest shall be 7%; the
date from which interest shall accrue shall be February 2, 1998; the Interest
Payment Dates for the Notes on which interest will be payable shall be February
1 and August 1 in each year, beginning August 1, 1998; the Regular Record Dates
for the interest payable on the Notes on any Interest Payment Date shall be the
15th calendar day preceding the applicable Interest Payment Date; and the basis
upon which interest shall be calculated shall be that of a 360-day year
consisting of twelve 30-day months.
(5) The Place of Payment where the principal of and interest on the
Notes shall be payable and Notes may be surrendered for the registration of
transfer or exchange shall be the Corporate Trust Office of the Trustee in St.
Paul, Minnesota. The place where notices or demands to or upon the Issuer in
respect of the Notes and the Indenture may be served shall be the corporate
trust office of the Trustee at One California Street, Suite 400, San Francisco,
California 94111.
(6) (A) The Notes may be redeemed at any time at the option of
the Issuer, in whole, or from time to time in part, at a redemption price equal
to the sum of (i) the principal amount of the Notes (or portion thereof) being
redeemed plus accrued interest thereon to the redemption date and (ii) the
Make-Whole Amount (as defined below), if any, with respect to such Notes (or
portion thereof) (the "Redemption Price").
If notice has been given as provided in the Indenture and funds for the
redemption of any Notes (or any portion thereof) called for redemption shall
have been made available on the redemption date referred to in such notice, such
Notes (or any portion thereof) will cease to bear interest on the date fixed for
such redemption specified in such notice and the only right of the Holders of
the Notes will be to receive payment of the Redemption Price, with respect to
such Notes or portion thereof so redeemed.
Notice of any optional redemption of any Notes (or any portion thereof)
will be given to Holders at their addresses, as shown in the security register
for the Notes, not more than 60 nor less than 30 days prior to the date fixed
for redemption. The notice of redemption will specify, among other items, the
Redemption Price and the principal amount of the Notes held by such Holder to be
redeemed. On the third Business Day preceding the date notice of redemption is
given, the Company will notify the Trustee of the Redemption Price and the
Trustee may rely and shall be fully protected in acting upon the determination
of the Company as to such Redemption Price.
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<PAGE> 3
The Issuer will notify the Trustee in writing at least 45 days
prior to giving notice of redemption (or such shorter period as is
satisfactory to the Trustee in its sole discretion) of the aggregate
principal amount of Notes to be redeemed and their redemption date. If
less than all the Notes are to be redeemed at the option of the Issuer,
the Trustee shall select by lot, the Notes to be redeemed in whole or in
part.
In the event of redemption of the Notes in part only, a new Note
for the amount of the unredeemed portion thereof shall be issued in the
name of the Holder thereto, upon cancellation thereof.
(B) As used herein:
"Make-Whole Amount" means, in connection with any optional
redemption or accelerated payment of any Notes, the excess, if any, of
(i) the aggregate present value as of the date of such redemption or
accelerated payment of each dollar of principal being redeemed or paid
and the amount of interest (exclusive of interest accrued to the date of
redemption or accelerated payment) that would have been payable in
respect of each such dollar if such redemption or accelerated payment
had not been made, determined by discounting, on a semi-annual basis,
such principal and interest at the Reinvestment Rate (determined on the
third Business Day preceding the date such notice of redemption is given
or declaration of acceleration is made) from the respective dates on
which such principal and interest would have been payable if such
redemption or accelerated payment had not been made, over (ii) the
aggregate principal amount of the Notes being redeemed or paid.
"Reinvestment Rate" means 0.25% plus the arithmetic mean of the
yields under the respective heading "Week Ending" published in the most
recent Statistical Release under the caption "Treasury Constant
Maturities" for the maturity (rounded to the nearest month)
corresponding to the remaining life to maturity, as of the payment date
of the principal being redeemed or paid. If no maturity exactly
corresponds to such maturity, yields for the two published maturities
most closely corresponding to such maturity shall be calculated pursuant
to the immediately preceding sentence and the Reinvestment Rate shall be
interpolated or extrapolated from such yields on a straight-line basis,
rounding in each of such relevant periods to the nearest month. For the
purpose of calculating the Reinvestment Rate, the most recent
Statistical Release published prior to the date of determination of the
Make-Whole Amount shall be used.
"Statistical Release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by
the Federal Reserve System and which establishes yields on actively
traded United States government securities adjusted to constant
maturities, or, if such statistical release is not published at the time
of any determination under the Indenture, then such other reasonably
comparable index which shall be designated by the Issuer.
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<PAGE> 4
(7) The Notes shall not be redeemable at the option of any Holder
thereof, upon the occurrence of any particular circumstances or
otherwise. The Notes will not have the benefit of any sinking fund.
(8) The Notes shall be issuable in denominations of $1,000 and
any integral multiple thereof.
(9) The Trustee shall also be the Security Registrar and Paying
Agent for the Notes.
(10) The entire outstanding principal amount plus the Make-Whole
Amount of the Notes shall be payable upon declaration of acceleration of
the maturity thereof pursuant to Section 502 of the Indenture.
(11) Payments of the principal of and interest on the Notes shall
be made in U.S. Dollars, and the Notes shall be denominated in U.S.
Dollars.
(12) The Notes will be payable on the Stated Maturity Date in an
amount equal to the principal amount thereof plus any unpaid interest
accrued to the Stated Maturity Date.
(13) The Holders of the Notes shall have no special rights in
addition to those provided in the Indenture upon the occurrence of any
particular events.
(14) (A) There shall be no deletions from, modifications of or
additions to the Events of Default with respect to the Notes set forth
in the Indenture.
(B) There shall be the following additions to the covenants set
forth in the Indenture with respect to the Notes, which shall be
effective only for so long as any of the Notes are Outstanding:
Limitations On Incurrence of Debt. The Issuer will not,
and will not permit any Subsidiary to, incur any Debt (as defined
below), other than inter-company debt representing Debt to which
the only parties are Spieker Properties, Inc., a Maryland
corporation (the "General Partner"), the Issuer and any of their
Subsidiaries (but only so long as such Debt is held solely by any
of the General Partner, the Issuer and any Subsidiary) that is
subordinate in right of payment to the Notes if, immediately
after giving effect to the incurrence of such additional Debt,
the aggregate principal amount of all outstanding Debt of the
Issuer and its Subsidiaries on a consolidated basis is greater
than 60% of the sum of (i) Total Assets (as defined below) as of
the end of the calendar quarter covered in the Issuer's Annual
Report on Form 10-K or Quarterly Report on Form 10-Q, as the case
may be, most recently filed with the Trustee (or such reports of
the General Partner if filed by the Issuer with the Trustee in
lieu of filing its own reports) prior
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<PAGE> 5
to the incurrence of such additional Debt and (ii) the increase
in Total Assets from the end of such quarter including, without
limitation, any increase in Total Assets resulting from the
incurrence of such additional Debt (such increase, together with
the Total Assets, is referred to as "Adjusted Total Assets").
In addition to the foregoing limitation on the incurrence
of Debt, the Issuer will not, and will not permit any Subsidiary
to, incur any Debt if the ratio of Consolidated Income Available
for Debt Service to the Annual Service Charge (in each case as
defined below) for the four consecutive fiscal quarters most
recently ended prior to the date on which such additional Debt is
to be incurred shall have been less than 1.5 to 1, on a pro forma
basis after giving effect to the incurrence of such Debt and to
the application of the proceeds therefrom, and calculated on the
assumption that (i) such Debt and any other Debt incurred by the
Issuer or its Subsidiaries since the first day of such
four-quarter period and the application of the proceeds
therefrom, including to refinance other Debt, had occurred at the
beginning of such period, (ii) the repayment or retirement of any
other Debt by the Issuer or its Subsidiaries since the first day
of such four-quarter period had been incurred, repaid or retired
at the beginning of such period (except that, in making such
computation, the amount of Debt under any revolving credit
facility shall be computed based upon the average daily balance
of such Debt during such period), (iii) the income earned on any
increase in Adjusted Total Assets since the end of such
four-quarter period had been earned, on an annualized basis,
during such period, and (iv) in the case of any acquisition or
disposition by the Issuer or any Subsidiary of any asset or group
of assets since the first day of such four-quarter period,
including, without limitation, by merger, stock purchase or sale,
or asset purchase or sale, such acquisition or disposition or any
related repayment of Debt had occurred as of the first day of
such period with the appropriate adjustments with respect to such
acquisition or disposition being included in such pro forma
calculation.
In addition to the foregoing limitations on the incurrence
of Debt, the Issuer will not, and will not permit any Subsidiary
to, incur any Debt secured by any mortgage, lien, charge, pledge,
encumbrance or security interest of any kind upon any of the
property of the Issuer or any Subsidiary ("Secured Debt"),
whether owned at the date of the Indenture or thereafter
acquired, if, immediately after giving effect to the incurrence
of such additional Secured Debt, the aggregate principal amount
of all outstanding Secured Debt is greater than 40% of Adjusted
Total Assets.
For purposes of the foregoing provisions regarding the
limitation on the incurrence of Debt, Debt shall be deemed to be
"incurred" by the Issuer or a Subsidiary whenever the Issuer and
its Subsidiary shall create, assume, guarantee or otherwise
become liable in respect thereof.
-5-
<PAGE> 6
Maintenance of Total Unencumbered Assets. The Issuer is
required to maintain Total Unencumbered Assets of not less than
165% of the aggregate outstanding principal amount of all
outstanding Unsecured Debt.
As used herein:
"Annual Service Charge" as of any date means the amount
which is expensed in any 12-month period for interest on Debt of
the Issuer and its Subsidiaries.
"Consolidated Income Available For Debt Service" for any
period means Consolidated Net Income plus amounts which have been
deducted for (a) interest on Debt of the Issuer and its
Subsidiaries, (b) provision for taxes of the Issuer and its
Subsidiaries based on income, (c) amortization of Debt discount,
(d) provisions for gains and losses on properties, (e)
depreciation and amortization, (f) the effect of any noncash
charge resulting from a change in accounting principles in
determining Consolidated Net Income for such period and (g)
amortization of deferred charges.
"Consolidated Net Income" for any period means the amount
of consolidated net income (or loss) of the Issuer and its
Subsidiaries for such period determined on a consolidated basis
in accordance with generally accepted accounting principles.
"Debt" of the Issuer or any Subsidiary means any
indebtedness of the Issuer or such Subsidiary, as applicable,
whether or not contingent, in respect of (i) borrowed money
evidenced by bonds, notes, Notes or similar instruments, (ii)
indebtedness secured by any mortgage, pledge, lien, charge,
encumbrance or any security interest existing on property owned
by the Issuer or such Subsidiary, (iii) the reimbursement
obligations, contingent or otherwise, in connection with any
letters of credit actually issued or amounts representing the
balance that constitutes an accrued expense or trade payable or
(iv) any lease of property by the Issuer or such Subsidiary as
lessee which is reflected in the Issuer's consolidated balance
sheet as a capitalized lease in accordance with generally
accepted accounting principles, in the case of items of
indebtedness under (i) through (iii) above to the extent that any
such items (other than letters of credit) would appear as a
liability on the Issuer's consolidated balance sheet in
accordance with generally accepted accounting principles, and
also includes, to the extent not otherwise included, any
obligation by the Issuer or such Subsidiary to be liable for, or
to pay, as obligor, guarantor or otherwise (other than for
purposes of collection in the ordinary course of business),
indebtedness of another person (other than the Issuer or any
Subsidiary).
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<PAGE> 7
"Subsidiary" means a corporation, partnership or limited
liability company, a majority of the outstanding voting stock,
partnership interests or membership interests, as the case may
be, of which is owned or controlled, directly or indirectly, by
the Issuer or by one or more other Subsidiaries of the Issuer.
For the purposes of this definition, "voting stock" means stock
having the voting power for the election of directors, general
partners, managers or trustees, as the case may be, whether at
all times or only so long as no senior class of stock has such
voting power by reason of any contingency.
"Total Assets" as of any date means the sum of (i)
Undepreciated Real Estate Assets and (ii) all other assets of the
Issuer and its Subsidiaries on a consolidated basis determined in
accordance with generally accepted accounting principles (but
excluding intangibles and accounts receivable).
"Total Unencumbered Assets" as of any date means the sum
of (i) those Undepreciated Real Estate Assets which have not been
pledged, mortgaged or otherwise encumbered by the owner thereof
to secure Debt, excluding infrastructure assessment bonds, and
(ii) all other assets of the Issuer and its Subsidiaries
determined in accordance with generally accepted accounting
principles (but excluding intangibles and accounts receivable)
which have not been pledged, mortgaged or otherwise encumbered by
the owner thereof to secure Debt.
"Undepreciated Real Estate Assets" as of any date means
the cost (original cost plus capital improvements) of real estate
assets of the Issuer and its Subsidiaries on such date, before
depreciation and amortization, determined on a consolidated basis
in accordance with generally accepted accounting principles.
"Unsecured Debt" as of any date means Debt which is not
secured by any mortgage, lien, charge, pledge, encumbrance or
security interest of any kind upon any of the properties of the
Issuer or any Subsidiary.
(C) The Trustee shall not be obligated to monitor or
confirm, on a continuing basis or otherwise, the Issuer's compliance
with the covenants contained in this subsection or with respect to
reports or other documents filed under the Indenture; provided, however,
that nothing herein shall relieve the Trustee of any obligations to
monitor the Issuer's timely delivery of all reports and certificates
required under Sections 703 and 1005 of the Indenture and to fulfill its
obligations under Article Six of the Indenture.
(15) The Notes shall be issuable only as Registered Securities in
permanent global form (without coupons). Beneficial owners of interests
in the permanent global Notes may exchange such interests for Notes of
like tenor or any authorized form and
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<PAGE> 8
denomination only in the manner provided in Section 305 of the
Indenture. DTC shall be the depository with respect to the permanent
global Note.
(16) The Notes shall not be issuable as Bearer Securities.
(17) Interest on any Note shall be payable only to the Person in
whose name that Note (or one or more predecessor Notes thereof) is
registered at the close of business on the Regular Record Date for such
interest.
(18) Sections 1402 and 1403 of the Indenture shall be applicable
to the Notes.
(19) The Notes shall not be issuable in definitive form except
under the circumstances described in Section 305 of the Indenture.
(20) Articles Sixteen and Seventeen of the Indenture shall not be
applicable to the Notes.
(21) The Issuer shall not pay Additional Amounts with respect to
the Notes as contemplated by Section 1009 of the Indenture.
(22) The Notes shall not be subordinated to any other debt of the
Issuer, and shall constitute senior unsecured obligations of the Issuer.
SECTION 102. FORM OF NOTE. The form of the Note is attached hereto as
Exhibit A.
ARTICLE II
MISCELLANEOUS
SECTION 201. DEFINITIONS. Capitalized terms used but not defined in this
Eleventh Supplemental Indenture shall have the meanings ascribed thereto in the
Indenture.
SECTION 202. CONFIRMATION OF INDENTURE. The Indenture, as heretofore
supplemented and amended by this Thirteenth Supplemental Indenture, is in all
respects ratified and confirmed, and the Indenture, this Thirteenth Supplemental
Indenture and all indentures supplemental thereto shall be read, taken and
construed as one and the same instrument.
SECTION 203. CONCERNING THE TRUSTEE. The Trustee assumes no duties,
responsibilities or liabilities by reason of this Thirteenth Supplemental
Indenture other than as set forth in the Indenture and, in carrying out its
responsibilities hereunder, shall have all of the rights, protections and
immunities which it possesses under the Indenture.
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<PAGE> 9
SECTION 204. GOVERNING LAW. This Thirteenth Supplemental Indenture, the
Indenture and the Securities shall be governed by and construed in accordanece
with the law of the State of New York.
SECTION 205. SEPARABILITY. In case any provision in this Thirteenth
Supplemental Indenture shall for any reason be held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 206. COUNTERPARTS. This Thirteenth Supplemental Indenture may be
executed in any number of counterparts each of which shall be an original, but
such counterparts shall together constitute but one and the same instrument.
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<PAGE> 10
IN WITNESS WHEREOF, the parties hereto have caused this Thirteenth Supplemental
Indenture to be duly executed, and the corporate seal of the General Partner to
be hereunto affixed and attested, as of the day and year first above written.
SPIEKER PROPERTIES, L.P.
By: Spieker Properties, Inc., as General Partner
By: /s/ Craig G. Vought
----------------------------------------------
Name: Craig G. Vought
Executive Vice President
and Chief Financial Officer
(seal)
Attest:
By: /s/ Stuart A. Rothstein
----------------------------
Name: Stuart A. Rothstein
Title: Assistant Secretary
SPIEKER PROPERTIES, INC.
By: /s/ Craig G. Vought
----------------------------------------------
Name: Craig G. Vought
Executive Vice President
and Chief Financial Officer
(seal)
Attest:
By: /s/ Stuart A. Rothstein
----------------------------
Name: Stuart A. Rothstein
Title: Assistant Secretary
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<PAGE> 11
FIRST TRUST OF CALIFORNIA,
NATIONAL ASSOCIATION, as
Trustee
By: /s/ Jennifer Holder
----------------------------------------------
Name: Jennifer Holder
Title: Vice President
Attest:
By: /s/ Josephine Libunao
----------------------------
Name: Josephine Libunao
Title: Assistant Vice President
-11-
<PAGE> 12
STATE OF California )
COUNTY OF San Mateo ) ss.:
On the 2nd day of February, 1998, before me personally came Craig G.
Vought to me known, who, being by me duly sworn, did depose and say that he is
the EVP and CFO of Spieker Properties, Inc., one of the entities described in
and which executed the above instrument; that he knows the corporate seal of
said corporation; that the seal affixed to the said instrument is such corporate
seal; that it was so affixed by authority of the corporation, and that he signed
his name thereto by like authority.
/s/ Melissa Trousdale
--------------------------------------------------
[Seal]
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<PAGE> 13
EXHIBIT A
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TO A
NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR
ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OR TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
REGISTERED PRINCIPAL AMOUNT
NO.: R-1 $
CUSIP NO.: 848503 AK 4
SPIEKER PROPERTIES, L.P.
7% NOTE DUE FEBRUARY 1, 2007
SPIEKER PROPERTIES, L.P., a California limited partnership (the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or
registered assignee (the "Holder"), upon presentation, the principal sum of
$ on February 1, 2007, and to pay interest on the outstanding principal
amount thereon from February 2, 1998, or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semi-annually in
arrears on February 1 and August 1 in each year (each an "Interest Payment
Date"), commencing August 1, 1998, and at the Stated Maturity, at the rate of 7%
per annum, computed on the basis of a 360-day year comprised of twelve 30-day
months, until the entire principal amount hereof is paid or duly provided for.
The interest so payable, and punctually paid or duly provided for on any
Interest Payment Date will, as provided in the Indenture (hereinafter defined),
be paid to the person in whose name this Note (the "Note") (or one or more
predecessor Notes) is registered at the close of business on the Regular Record
Date for such Interest Payment Date which shall be the 15th calendar day
preceding the applicable Interest Payment Date. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to the
Holder on such Regular Record Date, and may either be paid to the Person in
whose name this Note (or one or more predecessor Notes) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of
Notes not more than 15 days and not less than 10 days prior to such Special
Record
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<PAGE> 14
Date, or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Notes may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in the Indenture. Payments of the principal of, and interest on,
this Note will be made at the office or agency of the Trustee (hereinafter
defined) maintained for that purpose at 180 E. Fifth Street, St. Paul, Minnesota
55101, or elsewhere as provided in the Indenture, in United States Dollars;
provided, however, that at the option of the Holder hereof, and upon written
notice to the Trustee of not less than five Business Days prior to the
applicable Interest Payment Date, payment of interest may be made by (i) check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register kept for the Notes pursuant to Section 305 of
the Indenture (the "Note Register") or (ii) transfer to an account of the Person
entitled thereto located inside the United States.
This Note is one of a fully authorized issue of securities of the Issuer
issued as a series of securities issued and to be issued under an Indenture,
dated as of December 6, 1995 as supplemented by the Thirteenth Supplemental
Indenture dated February 2, 1998 (collectively, the "Indenture"), among the
Issuer and First Trust of California, National Association (the "Trustee," which
term includes any successor trustee under the Indenture with respect to the
Notes), to which Indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Issuer, the Trustee and the Holders of
the Notes, and of the terms upon which the Notes are, and are to be,
authenticated and delivered. This Note is one of the series designated as the
"7% Notes due February 1, 2007" limited in the aggregate principal amount to
$1,500,000.
The Notes may be redeemed at any time at the option of the Issuer, in
whole or from time to time in part, at a redemption price (the "Redemption
Price") equal to the sum of (i) the principal amount of the Notes (or portion
thereof) being redeemed plus accrued interest thereon to the redemption date and
(ii) the Make-Whole Amount (as defined below), if any, with respect to such
Notes (or portion thereof).
If notice has been given as provided in the Indenture and funds for the
redemption of any Notes (or any portion thereof) called for redemption shall
have been made available on the redemption date referred to in such notice, such
Notes (or any portion thereof) will cease to bear interest on the date fixed for
such redemption specified in such notice and the only right of the Holders of
the Notes will be to receive payment of the Redemption Price, with respect to
such Notes or portion thereof so redeemed.
Notice of any optional redemption of any Notes (or any portion thereof)
will be given to Holders at their addresses, as shown in the Note Register, not
more than 60 nor less than 30 days prior to the date fixed for redemption. The
notice of redemption will specify, among other items, the Redemption Price and
the principal amount of the Notes held by such Holder to be redeemed.
The Issuer will notify the Trustee at least 45 days prior to giving
notice of redemption (or such shorter period as is satisfactory to the Trustee)
of the aggregate principal amount of Notes to be redeemed and their redemption
date. If less than all the Notes are to be redeemed at the option
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<PAGE> 15
of the Issuer, the Trustee shall select, in such manner as it shall deem fair
and appropriate, the Notes to be redeemed in whole or in part.
In the event of redemption of the Notes in part only, a new Note for the amount
of the unredeemed portion hereof shall be issued in the name of the Holder
hereto, upon cancellation hereof.
As used herein:
"Make-Whole Amount" means, in connection with any optional
redemption or accelerated payment of any Notes, the excess, if any, of
(i) the aggregate present value as of the date of such redemption or
accelerated payment of each dollar of principal being redeemed or paid
and the amount of interest (exclusive of interest accrued to the date of
redemption or accelerated payment) that would have been payable in
respect of each such dollar if such redemption or accelerated payment
had not been made, determined by discounting, on a semi-annual basis,
such principal and interest at the Reinvestment Rate (determined on the
third Business Day preceding the date such notice of redemption is given
or declaration of acceleration is made) from the respective dates on
which such principal and interest would have been payable if such
redemption or accelerated payment had not been made, over (ii) the
aggregate principal amount of the Notes being redeemed or paid.
"Reinvestment Rate" means 0.25% plus the arithmetic mean of the
yields under the respective heading "Week Ending" published in the most
recent Statistical Release under the caption "Treasury Constant
Maturities" for the maturity (rounded to the nearest month)
corresponding to the remaining life to maturity, as of the payment date
of the principal being redeemed or paid. If no maturity exactly
corresponds to such maturity, yields for the two published maturities
most closely corresponding to such maturity shall be calculated pursuant
to the immediately preceding sentence and the Reinvestment Rate shall be
interpolated or extrapolated from such yields on a straight-line basis,
rounding in each of such relevant periods to the nearest month. For the
purpose of calculating the Reinvestment Rate, the most recent
Statistical Release published prior to the date of determination of the
Make-Whole Amount shall be used.
"Statistical Release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by
the Federal Reserve System and which establishes yields on actively
traded United States government securities adjusted to constant
maturities, or, if such statistical release is not published at the time
of any determination under the Indenture, then such other reasonably
comparable index which shall be designated by the Issuer.
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness of the Issuer on this Note and (b) certain restrictive
covenants and the related
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<PAGE> 16
defaults and Events of Default applicable to the Issuer, in each case, upon
compliance by the Issuer with certain conditions set forth in the Indenture,
which provisions apply to this Note.
The Issuer is subject to certain covenants contained in the Indenture
with respect to, and for the benefit of the Holders of, the Notes. The Trustee
shall not be obligated to monitor or confirm, on a continuing basis or
otherwise, the Issuer's compliance with the covenants contained in the Indenture
or with respect to reports or other certificates filed under the Indenture;
provided, however, that nothing herein shall relieve the Trustee of any
obligations to monitor the Issuer's timely delivery of all reports and
certificates required under Sections 703 and 1005 of the Indenture and to
fulfill its obligations under Article Six of the Indenture. If an Event of
Default as defined in the Indenture with respect to the Notes shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Note shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Notes, the Holders of not less than a majority in principal amount of the Notes
at the time Outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and offered
the Trustee reasonable indemnity and shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer of
indemnity and the Trustee shall not have received from the Holders of a majority
in principal amount of the Notes at the time Outstanding a direction
inconsistent with such request. The foregoing shall not apply to any suit
instituted by the Holder of this Note for the enforcement of any payment of
principal hereof or any interest on or after the respective due dates expressed
herein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer and the Trustee with the consent of the Holders of not less
than a majority in principal amount of the Outstanding Notes. The Indenture also
contains provisions permitting the Holders of not less than a majority in
principal amount of the Notes at the time Outstanding, on behalf of the Holders
of all Notes, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange herefor or
in lieu hereof, whether or not notation of such consent or waiver is made upon
this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of, and interest on, this Note
at the times, place and rate, and in the coin or currency, herein prescribed.
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<PAGE> 17
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable in the Note Register, upon
surrender of this Note for registration of transfer at the office or agency of
the Issuer in any Place of Payment where the principal of, and interest on, this
Note are payable, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Issuer and the Security Registrar for the
Notes duly executed by, the Holder hereof or his attorney duly authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Notes of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
the Notes are exchangeable for a like aggregate principal amount of Notes of
this series of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Issuer, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE NOTES INCLUDING THIS NOTE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE
OF NEW YORK.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Issuer has caused "CUSIP" numbers to be
printed on the Notes as a convenience to the Holders of the Notes. No
representation is made as to the correctness or accuracy of such CUSIP numbers
as printed on the Notes, and reliance may be placed only on the other
identification numbers printed hereon.
Unless the certificate of authentication hereon has been executed by or
on behalf of the Trustee by manual signature, this Note shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any purposes.
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<PAGE> 18
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its corporate seal this __ day of February, 1998.
SPIEKER PROPERTIES, L.P.
By: Spieker Properties, Inc., as
General Partner
By:
----------------------------------------------
Name: Craig G. Vought
Executive Vice President
and Chief Financial Officer
(SEAL)
Attest:
By:
----------------------------
Name: Stuart A. Rothstein
Title: Vice President - Finance
and Assistant Secretary
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<PAGE> 19
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated "7% Notes Due
February 1, 2007" referred to in the within-mentioned Indenture.
FIRST TRUST OF CALIFORNIA,
NATIONAL ASSOCIATION,
as Trustee
By:
----------------------------
Name:
Title:
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<PAGE> 20
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers to
-----------------------------------------------------------------------------
(Insert Social Security number or other identifying number of assignee)
-----------------------------------------------------------------------------
(Please print or typewrite name and address, including zip, code of assignee)
-----------------------------------------------------------------------------
the within Note of Spieker Properties, L.P. and hereby does irrevocably
constitute and appoint
- -----------------------------------------------------------------------------
Attorney to transfer said Note on the books of the within-named Issuer with full
power of substitution in the premises.
Dated:
------------ -----------------------------------
-----------------------------------
Signature(s) must be guaranteed by an eligible Guarantor Institution (banks,
stock brokers, savings and loan associations and credit unions) with membership
in an approved signature guarantee medallion program pursuant to Securities and
Exchange Commission Rule 17Ad-15.
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Note in every particular, without
alteration or enlargement or any change whatever.
-8-
