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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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Date of Report (Date of earliest event reported): AUGUST 7, 1997
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SUMMIT PROPERTIES PARTNERSHIP, L.P.
(Exact name of Registrant as specified in charter)
DELAWARE 0-22411 56-1857809
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(State or other jurisdiction (Commission file number) (IRS employer
of incorporation) identification no.)
212 SOUTH TRYON STREET, SUITE 500, CHARLOTTE, NC 28281
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(Address of principal executive offices) (Zip Code)
(704) 334-9905
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(Registrant's telephone number, including area code)
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ITEM 5. OTHER EVENTS
Summit Properties Partnership, L.P. (the "Partnership") anticipates
completion of the offering of $25,000,000 aggregate principal amount of its
6.80% Notes due 2002 (the "2002 Notes"), $50,000,000 aggregate principal amount
of its 6.95% Notes due 2004 (the "2004 Notes") and $50,000,000 aggregate
principal amount of its 7.20% Notes due 2007 (the "2007 Notes" and, together
with the 2002 Notes and the 2004 Notes, the "Notes") on August 12, 1997. The
offering of the Notes will be made pursuant to a Prospectus Supplement dated
August 7, 1997 relating to the Prospectus dated July 29, 1997 which was
originally filed with the Partnership's shelf registration statement on Form S-3
(file no. 333-25575).
The 2002 Notes will bear interest at 6.80% per annum and will mature on
August 15, 2002. The 2004 Notes will bear interest at 6.95% per annum and will
mature on August 15, 2004. The 2007 Notes will bear interest at 7.20% per annum
and will mature on August 15, 2007. The Notes will bear interest from August 12,
1997 or from the immediately preceding Interest Payment Date (as defined below)
to which interest had been paid, payable semi-annually in arrears on August 15
and February 15 of each year, commencing February 15, 1998 (each, an "Interest
Payment Date"), to the persons in whose name the Notes are registered in the
security register on the preceding August 1 or February 1, as the case may be.
Interest on the Notes will be computed on the basis of a 360-day year of twelve
30-day months.
The Notes may be redeemed at any time at the option of the Partnership,
in whole or 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 (as defined in Supplemental
Indenture No. 1 referenced below), if any, with respect to such Notes.
The Notes will be issued under an Indenture and Supplemental Indenture
No. 1 between the Partnership and First Union National Bank, as Trustee. The
underwriting discount for the 2002 Notes will be .600% and the price to the
public will be 99.940% of the principal amount of the 2002 Notes. The
underwriting discount for the 2004 Notes will be .625% and the price to the
public will be 99.764% of the principal amount of the 2004 Notes. The
underwriting discount for the 2007 Notes will be .650% and the price to the
public will be 99.830% of the principal amount of the 2007 Notes.
The anticipated net proceeds to the Partnership from the sale of the
Notes will be approximately $123.7 million. The Partnership intends to use the
net proceeds to repay borrowings under its unsecured credit facility.
Delivery of the Notes is expected to be made on August 12, 1997 through
the facilities of The Depository Trust Company, against payment therefor in
immediately available funds.
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ITEM 7. FINANCIAL STATEMENTS
EXHIBIT NUMBER EXHIBIT
1.1 Definitive Underwriting Agreement, dated August 7, 1997,
relating to the 6.80% Notes due 2002, the 6.95% Notes due 2004
and the 7.20% Notes due 2007.
4.1 Definitive Indenture, dated as of August 7, 1997, between
Summit Properties Partnership, L.P. and First Union National
Bank.
4.2 Form of Supplemental Indenture No. 1, between Summit
Properties Partnership, L.P. and First Union National Bank,
including forms of the 6.80% Note due 2002, the 6.95% Note
due 2004 and the 7.20% Note due 2007.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the registrant has duly caused this report to be filed on its behalf by
the undersigned hereunto duly authorized.
SUMMIT PROPERTIES PARTNERSHIP, L.P.
By: SUMMIT PROPERTIES INC., its general
partner
Dated: August 11, 1997 By: /s/ MICHAEL L. SCHWARZ
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Michael L. Schwarz
Executive Vice President
Chief Financial Officer
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EXHIBIT 1.1
SUMMIT PROPERTIES PARTNERSHIP, L.P.
DEBT SECURITIES
Underwriting Agreement
August 7, 1997
J.P. MORGAN SECURITIES INC.
MERRILL LYNCH, PIERCE,
FENNER & SMITH INCORPORATED
MORGAN STANLEY & CO. INCORPORATED
FIRST UNION CAPITAL MARKETS CORP.
c/o J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Ladies and Gentlemen:
Summit Properties Partnership, L.P., a Delaware limited partnership
(the "Partnership"), proposes to issue and sell to the underwriters named in
Schedule II hereto (the "Underwriters"), for whom you are acting as
representatives (the "Representatives"), the principal amount of its debt
securities identified in Schedule I hereto (the "Securities"), to be issued
under the indenture specified in Schedule I hereto (the "Indenture") between the
Partnership and the Trustee identified in such Schedule (the "Trustee"). If the
firm or firms listed in Schedule II hereto include only the firm or firms listed
in Schedule I hereto, then the terms "Underwriters" and "Representatives", as
used herein, shall each be deemed to refer to such firm or firms.
The Partnership and Summit Properties Inc., a Maryland corporation and
the sole general partner and the principal limited partner of the Partnership
(the "Company"), have prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement (the file number of which is set forth in Schedule I hereto) on Form
S-3, relating to, among other things, certain debt securities (the "Shelf
Securities") to be issued from time to time by the Partnership. The Partnership
and the Company also have filed with, or propose to file with, the Commission
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pursuant to Rule 424 under the Securities Act a prospectus supplement
specifically relating to the Securities. The registration statement as amended
to the date of this Agreement is hereinafter referred to as the "Registration
Statement" and the related prospectus covering the Shelf Securities in the form
first used to confirm sales of the Securities is hereinafter referred to as the
"Basic Prospectus". The Basic Prospectus as supplemented by the prospectus
supplement specifically relating to the Securities in the form first used to
confirm sales of the Securities is hereinafter referred to as the "Prospectus".
Any reference in this Agreement to the Registration Statement, the Basic
Prospectus, any preliminary form of Prospectus (a "preliminary prospectus")
previously filed with the Commission pursuant to Rule 424 or the Prospectus
shall be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Securities Act which were
filed under the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Exchange Act") on
or before the date of this Agreement or the date of the Basic Prospectus, any
preliminary prospectus or the Prospectus, as the case may be; and any reference
to "amend", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any preliminary prospectus or the Prospectus
shall be deemed to refer to and include any documents filed under the Exchange
Act after the date of this Agreement, or the date of the Basic Prospectus, any
preliminary prospectus or the Prospectus, as the case may be, which are deemed
to be incorporated by reference therein. For purposes of this Agreement, each of
the Partnership, Summit Management Company, a Maryland corporation (the
"Management Company"), Summit Apartment Builders, Inc., a Florida corporation
(the "Building Company") and any other subsidiaries (within the meaning of
Regulation S-X under the Securities Act) of the Company is deemed a "Subsidiary"
of the Company.
The Partnership hereby agrees with the Underwriters as follows:
1. The Partnership agrees to issue and sell the Securities to the
several Underwriters as hereinafter provided, and each Underwriter, on the basis
of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees to purchase, severally and not jointly,
from the Partnership the respective principal amount of Securities set forth
opposite such Underwriter's name in Schedule II hereto at the purchase price set
forth in Schedule I hereto plus accrued interest, if any, from the date
specified in Schedule I hereto to the date of payment and delivery.
2. The Partnership understands that the several Underwriters intend
(i) to make a public offering of their respective portions of the Securities and
(ii) initially to offer the Securities upon the terms set forth in the
Prospectus.
3. Payment for the Securities shall be made by wire transfer in
immediately available funds to the account specified by the Partnership to the
Representatives, no later than noon the
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Business Day (as defined below) prior to the Closing Date (as defined below), on
the date and at the time and place set forth in Schedule I hereto (or at such
other time and place on the same or such other date, not later than the fifth
Business Day (as defined below) thereafter, as you and the Partnership may agree
in writing). As used herein, the term "Business Day" means any day other than a
day on which banks are permitted or required to be closed in New York City. The
time and date of such payment and delivery with respect to the Securities are
referred to herein as the "Closing Date".
Payment for the Securities shall be made against delivery to the
nominee of The Depository Trust Company for the respective accounts of the
several Underwriters of the Securities of one or more global notes (the "Global
Note") representing the Securities, with any transfer taxes payable in
connection with the transfer to the Underwriters of the Securities duly paid by
the Company. The Global Note will be made available for inspection by the
Representatives at the office of J.P. Morgan Securities Inc. at the address set
forth above not later than 1:00 P.M., New York City time, on the Business Day
prior to the Closing Date.
4. The Partnership and the Company each jointly and severally
represents and warrants to each Underwriter that:
(a) the Registration Statement has been declared effective by
the Commission under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of
the Partnership and/or the Company, threatened by the Commission; and
the Registration Statement and Prospectus (as amended or supplemented
if the Partnership and/or the Company shall have furnished any
amendments or supplements thereto) comply, or will comply, as the case
may be, in all material respects with the Securities Act and the Trust
Indenture Act of 1939, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Trust Indenture Act"), and do
not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the date of
the Prospectus and any amendment or supplement thereto, contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and the Prospectus, as amended or supplemented at the
Closing Date, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
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statements therein, in light of the circumstances under which they
were made, not misleading; PROVIDED, HOWEVER, that the foregoing
representations and warranties shall not apply to (i) that part of the
Registration Statement which constitutes the Statement of Eligibility
and Qualification (Form T-1) under the Trust Indenture Act of the
Trustee, and (ii) statements or omissions in the Registration
Statement or the Prospectus made in reliance upon and in conformity
with information relating to any Underwriter furnished to the
Partnership and/or the Company in writing by such Underwriter through
the Representatives expressly for use therein;
(b) the documents incorporated by reference in the Prospectus,
when they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act, and none of such
documents contained an untrue statement of a material fact or omitted
to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading;
and any further documents so filed and incorporated by reference in the
Prospectus, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the Exchange
Act, and will not contain an untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not
misleading;
(c) the accountants who certified the financial statements and
supporting schedules included or incorporated by reference in the
Registration Statement and the Prospectus are independent public
accountants as required by the Securities Act, and there have been no
disagreements with any accountants or "reportable events" (as defined
in Item 304 of Regulation S-K promulgated by the Commission) required
to be disclosed in the Prospectus or elsewhere pursuant to such Item
304;
(d) the historical financial statements of the Company and the
Partnership included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the financial position of
the Company and its consolidated Subsidiaries taken as a whole as of
the dates indicated and the results of operations for the periods
specified; except as otherwise stated in the Registration Statement and
the Prospectus, said financial statements have been prepared in
conformity with generally accepted accounting principles applied
(except, in the case of interim financial results, for the notes
thereto and ordinary year-end adjustments) on a consistent basis and
comply with the
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applicable accounting requirements of the Securities Act (including,
without limitation, Rule 3-14 and Rule 3-15 of Regulation S-X
promulgated by the Commission), and all adjustments necessary for a
fair presentation of the results for such periods have been made; the
supporting schedules included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the
information required to be stated therein; and the selected financial
data (both historical and, if any, pro forma) included or incorpo-
rated by reference in the Registration Statement and the Prospectus
present fairly the information shown therein and have been compiled on
a basis consistent with the related financial statements presented
therein;
(e) the historical summaries of revenue and certain operating
expenses included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the revenue and those
operating expenses included in such summaries of the properties related
thereto for the periods specified in conformity with generally accepted
accounting principles; the pro forma consolidated financial statements
included or incorporated by reference in the Registration Statement and
the Prospectus; if any, present fairly the pro forma financial position
of the Company and its Subsidiaries taken as a whole as of the dates
indicated and the results of operations for the periods specified; and
any such pro forma financial statements have been prepared in
accordance with generally accepted accounting principles applied on a
basis consistent with the audited financial statements of the Company
and its Subsidiaries included or incorporated by reference in the
Registration Statement and the Prospectus; the assumptions on which
such pro forma financial statements have been prepared were, when such
pro forma financial statements were prepared, reasonable and are
summarized in the notes thereto, and any such pro forma financial
statements have been prepared, and the pro forma adjustments set forth
therein have been applied, in accordance with the applicable accounting
requirements of the Securities Act (including, without limitation,
Regulation S-X promulgated by the Commission), and any such pro forma
adjustments have been properly applied to the historical amounts in the
compilation of such statements;
(f) subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, there has
not occurred any material adverse change, or any development involving
a prospective material adverse change, in the condition, financial or
otherwise, or in the earnings, business affairs, business prospects
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or operations of the Company and its Subsidiaries taken as a whole
from that set forth in the Prospectus;
(g) subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, (1) neither
the Company nor its Subsidiaries have incurred any material liability
or obligation, direct or contingent, nor entered into any material
transaction not in the ordinary course of business; (2) neither the
Company nor its Subsidiaries have purchased any of the Company's
outstanding Common Stock, $.01 par value (the "Common Stock"), nor
declared, paid or otherwise made any dividend or distribution of any
kind on the Company's Common Stock other than ordinary and customary
dividends; and (3) there has not been any material change in the
capital, Common Stock, short-term debt or long-term debt of either the
Company or its Subsidiaries, except in each case as described in or
contemplated by the Prospectus;
(h) the Partnership has been duly formed and is validly
existing as a partnership in good standing under the laws of the State
of Delaware, has the partnership power and authority to own its
property and any property proposed to be acquired by it and referred to
in the Prospectus, and conduct its business as described in the
Prospectus and is duly qualified to transact such business, and is in
good standing under the laws of each other jurisdiction in which the
conduct of its business or its ownership, management or leasing of
property requires such qualification except to the extent that the
failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its Subsidiaries taken as a
whole, each of which jurisdiction is listed on Schedule III attached
hereto;
(i) the Agreement of Limited Partnership of the Partnership
(the "Agreement of Limited Partnership") has been duly and validly
authorized, executed and delivered by the Company, including in its
capacity as sole general partner of the Partnership, and is a valid and
binding agreement of the Company, including the Company in its capacity
as sole general partner of the Partnership, enforceable against the
Company in accordance with its terms;
(j) each of the Company, the Management Company and the
Building Company has been duly incorporated and is validly existing as
a corporation under the laws of its jurisdiction of incorporation, with
corporate power and authority to own its
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property and to conduct its business as described in the Prospectus,
and is duly qualified to transact such business and is in good
standing under the laws of each jurisdiction in which the conduct of
its business or its ownership, management or leasing of property
requires such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a material
adverse effect on the Company and its Subsidiaries taken as a whole,
each of which jurisdiction is listed on Schedule III attached hereto;
the Partnership and the Company have the partnership and corporate
power to enter into and perform their obligations under this
Agreement; and, except as otherwise stated in the Prospectus, all of
the issued and outstanding capital stock or other ownership interests
in the Management Company and the Building Company have been validly
issued and, in the case of the Management Company, are owned by the
Partnership and by William F. Paulsen and, in the case of the Building
Company, by the Management Company, in each case, free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or
equity, except for security interests granted in respect of indebted-
ness of the Company or any of its subsidiaries and described in the
Prospectus;
(k) except as disclosed in the Registration Statement, the
Company has no material subsidiaries;
(l) each of the partnership and joint venture agreements to
which the Company and any of its Subsidiaries is a party, and which
relates to real property, has been duly authorized, executed and
delivered on the part of the Company and any of such Subsidiaries by
any of them that is a party thereto and constitutes the valid agreement
thereof, enforceable in accordance with its terms, except as limited by
(a) the effect of bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to or affecting
the rights or remedies of creditors or (b) the effect of general
principles of equity, whether enforcement is considered in a proceeding
in equity or at law, and the discretion of the court before which any
proceeding therefor may be brought; and the execution, delivery and
performance of any of such agreements by the Company and any of its
Subsidiaries, as applicable, did not, at the time of execution and
delivery, and does not constitute a breach of, or default under, the
charter, by-laws, agreement of limited partnership (or other
organizational documents) of such party of any material contract, lease
or other instrument to which such party is a party or by which its
properties may be bound or any law, administrative regulation or
administrative or court decree;
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(m) the authorized capital stock conforms as to legal matters
to the description thereof contained in the Prospectus;
(n) the Securities have been duly authorized, and, when
issued, authenticated and delivered pursuant to this Agreement and the
Indenture, will have been duly and validly executed, authenticated,
issued and delivered and will constitute valid and binding obligations
of the Partnership entitled to the benefits provided by the Indenture
and enforceable against the Partnership in accordance with their terms
except that the enforceability thereof may be limited by or subject to
(a) bankruptcy, reorganization, insolvency, fraudulent conveyance,
moratorium or other similar laws now or hereafter existing which affect
the rights and remedies of creditors generally and (b) equitable
principles of general applicability; the Indenture has been duly
authorized and upon effectiveness of the Registration Statement will
have been duly qualified under the Trust Indenture Act and, when
executed and delivered by the Partnership and the Trustee, the
Indenture will constitute a valid and binding obligation of the
Partnership, enforceable against the Partnership in accordance with its
terms except that the enforceability thereof may be limited by or
subject to (a) bankruptcy, reorganization, insolvency, fraudulent
conveyance, moratorium or other similar laws now or hereafter existing
which affect the rights and remedies of creditors generally and (b)
equitable principles of general applicability; and the Securities and
the Indenture will conform to the descriptions thereof in the
Prospectus;
(o) neither the Company nor any of its Subsidiaries is, or
with the giving of notice or lapse of time or both would be, in
violation of or in default under, the Articles of Incorporation or
by-laws of the Company or the Agreement of Limited Partnership of the
Partnership or any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which it or any of them or any of their
respective properties is bound, except for violations and defaults
which individually and in the aggregate are not material to the Com-
pany and its Subsidiaries taken as a whole or to the holders of the
Securities; the issue and sale of the Securities and the performance by
the Partnership of all its obligations under the Securities and the
Indenture and the performance by each of the Partnership and the
Company of all their respective obligations under this Agreement and
the consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture,
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mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its Subsidiaries is a party
or by which the Company or any of its Subsidiaries is bound or to
which any of the property or assets of the Company or any of its
Subsidiaries is subject, except for such conflicts, breaches or
defaults which individually or in the aggregate would not have a
material adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Company
and its Subsidiaries taken as a whole; nor will any such action result
in any violation of the provisions of the Articles of Incorporation or
the by-laws of the Company or the Agreement of Limited Partnership of
the Partnership or any applicable law or statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company, its Subsidiaries or any of their
respective properties; and no consent, approval, authorization,
order, license, registration or qualification of or with any such
court or governmental agency or body is required for the issue and
sale of the Securities by the Partnership or the consummation of the
transactions contemplated by the Indenture by the Partnership or this
Agreement by the Partnership and the Company, except such consents,
approvals, authorizations, orders, licenses, registrations or
qualifications (i) as have been obtained under the Securities Act or
the Trust Indenture Act, (ii) as may be required under state
securities or Blue Sky Laws in connection with the purchase and
distribution of the Securities by the Underwriters or (iii) the
failure of which to obtain would not individually or in the aggregate
have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of
the Company and its Subsidiaries taken as a whole;
(p) with respect to all tax periods since the Company's first
taxable year ended December 31, 1994, the Company has met the
requirements for qualification as a real estate investment trust
("REIT") under Sections 856 through 860 of the Internal Revenue Code of
1986, as amended (the "Code"), and the Company's present and
contemplated operations, assets and income continue to meet such
requirements;
(q) none of the Partnership, the Company, the Management
Company or the Building Company is and, after giving effect to the
offering and sale of the Securities, will be an "investment company" or
an entity "controlled" by an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
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(r) there are no legal or governmental proceedings pending or,
to the knowledge of the Company, threatened to which the Company or
any Subsidiary of the Company is a party or to which any of their
properties or the Communities (as that term is defined in the
Prospectus) is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or
any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required and all such contracts
required to be filed as exhibits to the Registration Statement are set
forth in Schedule IV attached hereto;
(s) the Company and its Subsidiaries own or possess any
trademarks, service marks, trade names or copyrights (collectively, the
"Intellectual Property") required in order to conduct their respective
businesses as described in the Prospectus, other than those which the
failure to possess or own would not have a material adverse effect on
the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its Subsidiaries taken
as a whole;
(t) the Company and each Subsidiary has all necessary
consents, authorizations, approvals, orders, certificates and permits
of and from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals, to
own, lease, license and use its properties and assets and to conduct
its business in the manner described in the Prospectus, except to the
extent that the failure to obtain or file would not have a material
adverse effect on the Company and its subsidiaries taken as a whole;
(u) the Company has full right, power and authority to enter
into this Agreement and this Agreement has been duly authorized,
executed and delivered by the Company;
(v) the Partnership has full right, power and authority to
enter into this Agreement and this Agreement has been duly authorized,
executed and delivered by the Partnership;
(w) (i) the Company and its Subsidiaries have good and marketable
title in fee simple to all of the Communities described in the
Prospectus as owned by them in fee
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simple, free and clear of all liens, in each case except such as are
described in the Prospectus or such as do not materially affect the
value of such Community and do not materially affect the value of such
property and do not materially interfere with the use made and proposed
to be made of such property by the Company and by its Subsidiaries;
(ii) the construction, management and operation of the buildings,
fixtures and other improvements located on the Communities as currently
conducted or existing are not in violation of any applicable building
code, zoning ordinance or other law or regulation except where such
violation of any applicable building code, zoning ordinance or other
law or regulation would not, singly or in the aggregate, have a
material adverse effect on the Company and its Subsidiaries taken as a
whole, (iii) neither the Company, the Partnership nor the Management
Company has received notice of any proposed material special assessment
or any proposed material change in any property tax, zoning or land use
laws or availability of water for irrigation affecting all or any
portion of the Communities; (iv) neither the Company nor the
Partnership is aware of any material delay with respect to the
construction of Communities referred to in the Prospectus as under con-
struction, or any material increase in the estimated cost of such
construction, or any other matter materially detrimental to the
construction, or any factor which may, through passage of time or
otherwise, give rise to such delay, cost increase or detriment; (v)
there do not exist any material violations of any declaration of
covenants, conditions and restriction (the "CC&R's") with respect to
any of the Communities, nor to the Company's knowledge is there any
existing state of facts or circumstances or condition or event which
could, with the giving of notice or passage of time, or both,
constitute such a violation; and (vi) the improvements comprising any
portion of the Communities (the "Improvements") are free of any and all
material physical, mechanical, structural, design and construction
defects and the mechanical, electrical and utility systems servicing
the Improvements (including, without limitation, all water, electric,
sewer, plumbing, heating, ventilation, gas and air conditioning) are in
good condition and proper working order and are free of material
defects;
(x) immediately after any sale of Securities by the
Partnership hereunder, the aggregate amount of Securities which have
been issued and sold by the Partnership hereunder and of any securities
of the Partnership (other than the Securities) that shall have been
issued and sold pursuant to the Registration Statement will not exceed
the amount of securities registered under the Registration Statement;
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(y) no relationship, direct or indirect, exists between or
among the Company or any of its Subsidiaries on the one hand, and the
directors, officers, stockholders, customers or suppliers of the
Company or any of its Subsidiaries on the other hand, which is required
by the Securities Act to be described in the Registration Statement and
the Prospectus which is not so described;
(z) the Company and its Subsidiaries have filed all federal,
state, local and foreign tax returns which have been required to be
filed and have paid all taxes shown thereon and all assessments
received by them or any of them to the extent that such taxes have
become due and are not being contested in good faith; and, except as
disclosed in the Registration Statement and the Prospectus, there is no
tax deficiency which has been or might reasonably be expected to be
asserted or threatened against the Company or any Subsidiary;
(aa) there are no existing or, to the best knowledge of the
Partnership and/or the Company, threatened labor disputes with the
employees of the Company or any of its Subsidiaries which are likely to
have a material adverse effect on the Company and its Subsidiaries
taken as a whole;
(bb) the Partnership has an ALTA Extended Coverage Owner's
Policy of Title Insurance on all of the Communities and such title
insurance is in full force and effect;
(cc) the Company and each Subsidiary (i) is in compliance with
any and all applicable federal, state and local laws and regulations
relating to the protection of human health and safety, the environment
or hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) has received all permits, licenses or
other approvals required of them under applicable Environmental Laws to
conduct their respective businesses and (iii) is in compliance with all
terms and conditions of any such permit, license or approval, except
where such noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to comply with
the terms and conditions of such permits, licenses or approvals would
not, singly or in the aggregate, have a material adverse effect on the
Company and its Subsidiaries, taken as a whole;
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<PAGE> 13
(dd) there are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval,
any related constraints on operating activities and any potential
liabilities to third parties) that would, singly or in the aggregate,
have a material adverse effect on the Company and its Subsidiaries
taken as a whole;
(ee) each employee benefit plan, within the meaning of Section
3(3) of the Employee Retirement Income Security Act of 1974, as
amended, ("ERISA") that is maintained, administered or contributed to
by the Partnership, the Company or any of its affiliates for employees
or former employees of the Partnership, the Company and its affiliates
has been maintained in compliance with its terms and the requirements
of any applicable statutes, orders, rules and regulations, including
but not limited to ERISA and the Code. No prohibited transaction,
within the meaning of Section 406 of ERISA or Section 4975 of the Code
has occurred with respect to any such plan excluding transactions
effected pursuant to a statutory or administrative exemption. For each
such plan which is subject to the funding rules of Section 412 of the
Code or Section 302 of ERISA no "accumulated funding deficiency" as
defined in Section 412 of the Code has been incurred, whether or not
waived, and the fair market value of the assets of each such plan
(excluding for these purposes accrued but unpaid contributions)
exceeded the present value of all benefits accrued under such plan
determined using reasonable actuarial assumptions;
(ff) the assets of the Partnership do not constitute "plan
assets" under ERISA;
(gg) the Company and its Subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks
and in such amounts as are customary in the businesses in which they
are engaged; neither the Company nor any Subsidiary has been refused
any insurance coverage sought or applied for, and neither the Company
nor any Subsidiary has any reason to believe that it will not be able
to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that would not materially
and adversely affect the condition, financial or otherwise, or the
earnings, business or operations of the Company and its Subsidiaries
taken as a whole, except as described in or contemplated by the
Prospectus;
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<PAGE> 14
(hh) the mortgages and deeds of trust encumbering the
Communities are not cross-defaulted or cross-collateralized with any
other property not owned directly or indirectly by the Company or its
Subsidiaries; and
(ii) any certificate signed by any officer of the Company in
such capacity or as general partner of the Partnership and delivered to
you or to counsel for the Underwriters in connection with the offering
of the Securities shall be deemed a representation and warranty by the
Company or the Partnership, as the case may be, to each Underwriter
participating in such offering as to the matters covered thereby on the
date of such certificate.
5. Each of the Partnership and the Company covenants and agrees with
each of the several Underwriters as follows:
(a) to file the Prospectus in a form approved by you pursuant
to Rule 424 under the Securities Act not later than the Commission's
close of business on the second Business Day following the date of
determination of the offering price of the Securities or, if
applicable, such earlier time as may be required by Rule 424(b);
(b) to furnish to each Representative and counsel for the
Underwriters, at the expense of the Partnership, a conformed copy of
the Registration Statement (as originally filed) and each amendment
thereto, in each case including exhibits and documents incorporated by
reference therein and, during the period mentioned in paragraph (e)
below, to furnish each of the Underwriters as many copies of the
Prospectus (including all amendments and supplements thereto) and
documents incorporated by reference therein as you may reasonably
request;
(c) from the date hereof and prior to the Closing Date, to
furnish to you a copy of any proposed amendment or supplement to the
Registration Statement or the Prospectus, for your review, and not to
file any such proposed amendment or supplement to which you reasonably
object;
(d) to file promptly all reports and any definitive proxy or
information statements required to be filed by the Partnership and/or
the Company with the Commission pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act for so long as the
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<PAGE> 15
delivery of a prospectus is required in connection with the offering or
sale of the Securities, and during such same period, to advise you
promptly, and to confirm such advice in writing, (i) when any amendment
to the Registration Statement shall have become effective, (ii) of any
request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for any
additional information, (iii) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement
or the initiation or threatening of any proceeding for that purpose,
and (iv) of the receipt by the Partnership and/or the Company of any
notification with respect to any suspension of the qualification of the
Securities for offer and sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and to use its best
efforts to prevent the issuance of any such stop order or notification
and, if issued, to obtain as soon as possible the withdrawal thereof;
(e) if, during such period after the first date of the public
offering of the Securities as in the opinion of counsel for the
Underwriters a prospectus relating to the Securities is required by law
to be delivered in connection with sales by an Underwriter or dealer,
any event shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in
light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or supplement
the Prospectus to comply with law, forthwith to prepare and furnish, at
the expense of the Partnership and the Company, to the Underwriters and
to the dealers (whose names and addresses you will furnish to the
Partnership and the Company) to which Securities may have been sold by
you on behalf of the Underwriters and to any other dealers upon
request, such amendments or supplements to the Prospectus as may be
necessary so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus will comply with law;
(f) to endeavor to qualify the Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as you
shall reasonably request and to continue such qualification in effect
so long as reasonably required for distribution of the Securities;
PROVIDED that the Partnership and the Company shall not be required to
file a general consent to service of process in any jurisdiction;
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<PAGE> 16
(g) to make generally available to its security holders and to
you as soon as practicable an earnings statement which shall satisfy
the provisions of Section 11(a) of the Securities Act and Rule 158 of
the Commission promulgated thereunder covering a period of at least
twelve months beginning with the first fiscal quarter of the
Partnership and the Company occurring after the "effective date" (as
defined in Rule 158) of the Registration Statement;
(h) so long as the Securities are outstanding, to furnish to
you copies of all reports or other communications (financial or other)
furnished to holders of Securities, and copies of any reports and
financial statements furnished to or filed with the Commission or any
national securities exchange;
(i) during the period beginning on the date hereof and
continuing to and including the Business Day following the Closing
Date, not to offer, sell, contract to sell or otherwise dispose of any
debt securities of or guaranteed by the Partnership and/or the Company
which are substantially similar to the Securities;
(j) to use the net proceeds received by the Partnership from
the sale of the Securities pursuant to this Agreement in the manner
specified in the Prospectus under the caption "Use of Proceeds";
(k) whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all costs and expenses incident to the performance of
its obligations hereunder, including without limiting the generality of
the foregoing, all costs and expenses (i) incident to the preparation,
issuance, execution, authentication and delivery of the Securities,
including any expenses of the Trustee, (ii) incident to the
preparation, printing and filing under the Securities Act of the
Registration Statement, the Prospectus and any preliminary prospectus
(including in each case all exhibits, amendments and supplements
thereto), (iii) incurred in connection with the registration or
qualification and determination of eligibility for investment of the
Securities under the laws of such jurisdictions as the Underwriters
may designate (including fees of counsel for the Underwriters and their
disbursements), (iv) related to any filing with National Association
of Securities Dealers, Inc., (v) in connection with the printing
(including word processing and duplication costs) and delivery of this
Agreement, the Indenture, the Preliminary and Supplemental Blue Sky
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<PAGE> 17
Memoranda and any Legal Investment Survey and the furnishing to
Underwriters and dealers of copies of the Registration Statement and
the Prospectus, including mailing and shipping, as herein provided,
(vi) payable to rating agencies in connection with the rating of the
Securities, (vii) any expenses incurred by the Partnership and the
Company in connection with a "road show" presentation to potential
investors and (viii) the cost and charges of any transfer agent.
6. The several obligations of the Underwriters hereunder shall be
subject to the following conditions:
(a) the representations and warranties of the Partnership and
the Company contained herein are true and correct on and as of the
Closing Date as if made on and as of the Closing Date and the
Partnership and the Company shall have complied with all agreements and
all conditions on their part to be performed or satisfied hereunder at
or prior to the Closing Date;
(b) the Prospectus shall have been filed with the Commission
pursuant to Rule 424 within the applicable time period prescribed for
such filing by the rules and regulations under the Securities Act; no
stop order suspending the effectiveness of the Registration Statement
shall be in effect, and no proceedings for such purpose shall be
pending before or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to your satisfaction;
(c) subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, there shall not have occurred any
downgrading, nor shall any notice have been given of (i) any
downgrading, (ii) any intended or potential downgrading or (ii) any
review or possible change that does not indicate an improvement, in the
rating accorded any securities of or guaranteed by the Company and/or
the Partnership by any "nationally recognized statistical rating
organization", as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act;
(d) since the respective dates as of which information is
given in the Prospectus there shall not have been any change in the
capital stock or long-term debt of the Company or any of its
Subsidiaries or any material adverse change, or any development
involving a material adverse change, in or affecting the general
affairs, business, pros-
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<PAGE> 18
pects, management, financial position, stockholders' equity or results
of operations of the Company and its Subsidiaries, taken as a whole,
otherwise than as set forth or contemplated in the Prospectus, the
effect of which in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities on the terms and in the manner contemplated
in the Prospectus; and neither the Company nor any of its Subsidiaries
shall have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus any
material loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order to decree,
otherwise than as set forth or contemplated in the Prospectus;
(e) the Representatives shall have received on and as of the
Closing Date a certificate of an executive officer of the Company, with
specific knowledge about the Partnership's and the Company's financial
matters, satisfactory to you to the effect set forth in subsections (a)
through (c) (with respect to the respective representations, warran-
ties, agreements and conditions of the Partnership and the Company) of
this Section and to the further effect that there has not occurred any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
business, prospects, management, financial position, stockholders'
equity or results of operations of the Company and its Subsidiaries
taken as a whole from that set forth or contemplated in the
Registration Statement.
(f) Goodwin, Procter & Hoar LLP, counsel for the Company and
the Subsidiaries, shall have furnished to you their written opinion,
dated the Closing Date, in form and substance satisfactory to you, to
the effect that:
(i) the Partnership has been duly formed and is
validly existing as a partnership in good standing under the laws
of the State of Delaware, has the partnership power and authority
to own its property and any property proposed to be acquired by it
and referred to in the Prospectus and is duly qualified to
transact such business and is in good standing in each
jurisdiction listed on Schedule III attached hereto and, to the
knowledge of the attorneys listed on Schedule V which are all of
the attorneys at Goodwin, Procter & Hoar LLP who are currently
working on matters for the Company or any of its Subsidiaries,
without independ-
18
<PAGE> 19
ent investigation, is duly qualified to transact such business and
is in good standing under the laws of each other jurisdiction in
which the conduct of its business or its ownership, management or
leasing of property requires such qualification except to the
extent that the failure to be so qualified or be in good standing
in each such jurisdiction would not have a material adverse effect
on the Company and its Subsidiaries taken as a whole;
(ii) each of the Company, the Management Company and
the Building Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact such
business and is in good standing in each jurisdiction listed on
Schedule III attached hereto and, to the knowledge of the
attorneys listed on Schedule V which are all of the attorneys at
Goodwin, Procter & Hoar LLP who are currently working on matters
for the Company or any of its Subsidiaries, without independent
investigation, is duly qualified to transact such business and is
in good standing under the laws of each other jurisdiction in
which the conduct of its business or its ownership, management or
leasing of property requires such qualification except to the
extent that the failure to be so qualified or be in good standing
in each such jurisdiction would not have a material adverse effect
on the Company and its Subsidiaries taken as a whole;
(iii) based solely on such counsel's review of the
Agreement of Limited Partnership and a report of a reputable
commercial search firm of the Uniform Commercial Code records of
the financing statements on file in the office of the Secretary of
State of the State of North Carolina, being the state in which the
Company's chief executive office is located and in the office of
the Mecklenburg County Recorder, the county in which such office
is located, the interests in the Partnership owned by the Company
are validly issued and owned, directly or indirectly, by the
Company, free and clear of any perfected security interest, or to
such counsel's knowledge, any other mortgage, pledge, lien,
encumbrance, claim or security interest of any kind;
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<PAGE> 20
(iv) this Agreement has been duly authorized, executed
and delivered by the Company;
(v) this Agreement has been duly authorized, executed
and delivered by the Partnership;
(vi) the Securities have been duly authorized, executed
and delivered by the Partnership and, when duly authenticated in
accordance with the terms of the Indenture and delivered to and
paid for by the Underwriters in accordance with the terms of this
Agreement, will constitute valid and binding obligations of the
Partnership entitled to the benefits provided by the Indenture and
the Securities will be enforceable against the Partnership in
accordance with their terms, except that the enforceability
thereof may be limited by or subject to (a) bankruptcy,
reorganization, insolvency, fraudulent conveyance, moratorium or
other similar laws now or hereafter existing which affect the
rights and remedies of creditors generally and (b) equitable
principles of general applicability. The Indenture conforms in all
material respects to all statements and descriptions related
thereto in the Prospectus. The terms of the Securities conform in
all material respects to all statements and descriptions related
thereto in the Prospectus;
(vii) the Indenture has been duly authorized, executed
and delivered by the Partnership and constitutes a valid and
binding instrument of the Partnership enforceable in accordance
with its terms, except that the enforceability thereof may be
limited by or subject to (a) bankruptcy, reorganization,
insolvency, fraudulent conveyance, moratorium or other similar
laws now or hereafter existing which affect the rights and
remedies of creditors generally and (b) equitable principles of
general applicability; and the Indenture has been duly qualified
under the Trust Indenture Act;
(viii) the execution and delivery of the Indenture by
the Partnership and this Agreement by each of the Company and the
Partnership, and the performance by the Partnership of its
obligations under the Indenture and by each of the Company and
the Partnership of its obligations under this Agreement, will not
(a) contravene (i) any provision of Applicable Law or, to the
knowledge of the attorneys listed on Schedule V which are all of
the attorneys at Goodwin, Procter
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<PAGE> 21
& Hoar LLP who are currently working on matters for the Company or
any of its Subsidiaries, without independent investigation, any
provision of applicable law or statute or any order, rule or
regulation of any court or governmental agency, body or court
having jurisdiction over the Company, its Subsidiaries or any of
their respective properties except for such contraventions of any
such provision of applicable law or statute or any such order,
rule or regulation of any court or governmental agency, body or
court having jurisdiction over the Company, its Subsidiaries or
any of their respective properties which individually or in the
aggregate would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its Subsidiaries
taken as a whole (a "Material Adverse Effect") or (ii) the
Articles of Incorporation or by-laws of the Company or the
Agreement of Limited Partnership or, (b) to such counsel's
knowledge after due inquiry, (i) conflict with or result in a
breach of any of the terms or provisions of, or constitute a
default under, any agreement or other instrument identified on
Schedule IV attached hereto or, to the knowledge of the attorneys
listed on Schedule V which are all of the attorneys at Goodwin,
Procter & Hoar LLP who are currently working on matters for the
Company or its Subsidiaries, without independent investigation,
any agreement or other instrument to which the Company or any of
its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound or to which any of the property or assets of
the Company or any of its Subsidiaries is subject except for such
conflicts, breaches or defaults with respect to any such un-
scheduled agreements or instruments which individually or in the
aggregate would not have a Material Adverse Effect; provided that
such counsel need not opine as to whether the execution and
delivery of the Indenture by the Partnership and this Agreement by
each of the Company and the Partnership, and the performance by
the Partnership of its obligations under the Indenture and by each
of the Company and the Partnership of its obligations under this
Agreement will constitute a violation of or a default under any
covenant, restriction or provision with respect to financial
ratios or tests or any aspect of the financial ratios or tests or
any aspect of the financial condition or results of operations of
the Company or the Partnership, or (ii) contravene, violate or
conflict with, any judgment, order or decree, known to such
counsel, of any Governmental Authority or, to the knowledge of the
attorneys listed on Schedule V which are all of the attorneys at
Goodwin, Procter & Hoar LLP who are currently working on matters
for the Company or
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<PAGE> 22
any of its Subsidiaries, without independent investigation, any
judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any Subsidiary
except for such contraventions, violations or conflicts with any
such judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any Subsidiary which
individually or in the aggregate would not have a Material Adverse
Effect; and no consent, approval, authorization or order of, or
qualification or registration with, any Governmental Authority
or, to the knowledge of the attorneys listed on Schedule V which
are all of the attorneys at Goodwin, Procter & Hoar LLP who are
currently working on matters for the Company or any of its
Subsidiaries, without independent investigation, any court or
governmental body or agency except such consents, approvals,
authorizations or orders of, or qualifications or registrations
with any such court or governmental body or agency the failure of
which to obtain would not individually or in the aggregate have a
Material Adverse Effect, is required for the issue and sale of
the Securities or the performance by each of the Company and the
Partnership of its obligations under this Agreement or by the
Partnership of its obligations under the Indenture, except, in
each case, such as have been obtained under the Securities Act and
the Trust Indenture Act and as may be required by the securities
or Blue Sky laws of the various states or the By-laws or Corporate
Financing Rule of the NASD in connection with the offer and sale
of the Securities;
(a) "Governmental Approval" means any consent,
approval, order or decree, license, authorization or validation
of, or filing with, any Governmental Authority pursuant to
Applicable Laws, (b) "Governmental Authority" shall mean any
United States or Commonwealth of Massachusetts court or
legislative, judicial, administrative or regulatory body or agency
and (c) "Applicable Laws" means the Maryland General Corporation
Law and those laws, statutes, rules and regulations of the United
States of America and the Commonwealth of Massachusetts that, in
such counsel's experience, are normally applicable to transactions
of the type contemplated by this Agreement; provided, that such
counsel need express no opinion as to (x) the "blue sky" or state
securities or real estate syndication laws of any jurisdiction or
(y) municipal laws or the laws of any agencies within any state.
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<PAGE> 23
(ix) each of the Company and its Subsidiaries owns,
possesses or has obtained all Governmental Approvals and has made
all declarations and filings with all Governmental Authorities
and, to the knowledge of the attorneys listed on Schedule V which
are all of the attorneys at Goodwin, Procter & Hoar LLP who are
currently working on matters for the Company or any of its
Subsidiaries, without independent investigation, each of the
Company and its Subsidiaries owns, possesses or has obtained all
licenses, permits, certificates, consents, orders, approvals and
other authorizations from, and has made all declarations and
filings with, all federal, state, local and other governmental
authorities, all self-regulatory organizations and all courts and
other tribunals except for such licenses, permits, certificates,
consents, orders, approvals and other authorizations from, and
declarations and filings with, all such federal, state, local and
other governmental authorities, all such self-regulatory
organizations and all such courts and other tribunals the failure
of which to own, possess or obtain, and make, as specified above,
would not individually or in the aggregate have a Material Adverse
Effect, in each case, necessary to own or lease, as the case may
be, and to operate its properties and to carry on its business as
conducted as of the date hereof, and neither the Company nor any
such Subsidiary has received any actual notice of any proceeding
relating to revocation or modification of any Governmental Ap-
proval or, to the knowledge of the attorneys listed on Schedule V
which are all of the attorneys at Goodwin, Procter & Hoar LLP who
are currently working on matters for the Company or any of its
Subsidiaries, without independent investigation, any license,
permit, certificate, consent, order, approval or other authori-
zation except for such revocations or modifications of any such
licenses, permits, certificates, consents, orders, approvals or
other authorizations which individually or in the aggregate would
not have a Material Adverse Effect, in each case, except as
described in the Registration Statement and the Prospectus; and
each of the Company and its Subsidiaries is in compliance with all
Applicable Laws and, to the knowledge of the attorneys listed on
Schedule V which are all of the attorneys at Goodwin, Procter &
Hoar LLP who are currently working on matters for the Company or
any of its Subsidiaries, without independent investigation, all
laws and regulations except to the extent that the failure to so
comply with all such laws and regulations would not have a
Material Adverse Effect, in each case, relating to the conduct of
its business as conducted as of the date of the Prospectus;
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<PAGE> 24
(x) each document incorporated by reference in the
Registration Statement and the Prospectus as amended or
supplemented (other than the financial statements and related
schedules therein and other financial and statistical data
included or incorporated therein, as to which such counsel need
express no opinion) complied as to form when filed with the
Commission in all material respects with the Exchange Act, and the
rules and regulations of the Commission thereunder, and that the
Registration Statement and the Prospectus and any amendments and
supplements thereto (except for the financial statements and
related schedules therein and other financial and statistical data
included or incorporated therein, as to which such counsel need
express no opinion) comply as to form in all material respects
with the requirements of the Securities Act;
(xi) the Registration Statement is effective under the
Securities Act; any required filing of the Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b); and to
such counsel's knowledge based solely on a telephone conversation
with the staff of the Commission, no stop order suspending the
effectiveness of the Registration Statement has been issued under
the Securities Act and no proceedings therefor have been initiated
or threatened by the Commission;
(xii) none of the Company, the Partnership, the
Management Company, or the Building Company is an "investment
company" as such term is defined in the Investment Company Act of
1940, as amended;
(xiii) based, in part, on representations from the
Company relating to its asset composition, source of income,
shareholder diversification, distributions, record keeping and
other requirements and assumptions relating to the Company's
continued compliance with such representations, for its taxable
years ended December 31, 1994, through December 31, 1996, the
Company has been organized in conformity with the requirements
for qualification as a "real estate investment trust" under the
Code and its method of operation has enabled it to and will enable
it to continue to meet the requirements for qualification and
taxation as a real estate investment trust under the Code;
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<PAGE> 25
(xiv) the statements set forth in the Prospectus under
the caption "Federal Income Tax Considerations" insofar as such
statements constitute summaries of the legal matters referred to
therein, are accurate in all material respects; and
(xv) the statements set forth in the Prospectus under
the captions "Description of Debt Securities", "Description of
Common Stock", "Description of Preferred Stock", and "Restrictions
on Transfer of Capital Stock", in each case insofar as such
statements constitute summaries of the legal matters or documents
referred to therein, fairly present the information called for
with respect to such legal matters and documents and fairly
summarize the matters referred to therein.
Such counsel shall also include a statement in such
opinion to the following effect: we have participated in conferences
with officers and other representatives of the Company and the
Partnership, counsel for the Company and the Partnership, represen-
tatives of the independent accountants of the Company and the
Partnership and you at which the contents of the Registration Statement
and related matters were discussed and on the basis of the foregoing:
(i) No facts have come to such counsel's
attention which cause it to believe that the Registration
Statement (excluding the financial statements and
schedules and other financial and statistical data
included or incorporated therein, as to which such counsel
need express no belief), at the time it became effective,
contained an untrue statement of a material fact or
omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading; and
(ii) No facts have come to such counsel's
attention which cause it to believe that the Prospectus
(excluding the financial statements and schedules and
other financial and statistical data included or
incorporated therein, as to which such counsel need
express no belief), as of its date and the Closing Date,
contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to
make the statements therein, in the light of the
circumstances under which they were made, not misleading.
25
<PAGE> 26
(g) The favorable opinion, dated as of Closing Time, of
Kennedy Covington Lobdell & Hickman, special counsel for the Company
and the Subsidiaries, in form and substance satisfactory to counsel for
the Underwriters, to the effect that:
(i) the Partnership is duly qualified to transact
such business and is in good standing in each jurisdiction listed
on Schedule III attached hereto and, to the knowledge of the
attorneys listed on Schedule VI which are all of the attorneys at
Kennedy Covington Lobdell & Hickman who are currently working on
matters for the Company or its Subsidiaries, without independent
investigation, is duly qualified to transact such business and is
in good standing under the laws of each other jurisdiction in
which the conduct of its business or its ownership, management or
leasing of property requires such qualification except to the
extent that the failure to be so qualified or be in good standing
in each such jurisdiction would not have a material adverse effect
on the Company and its Subsidiaries taken as a whole;
(ii) each of the Company, the Management Company and
the Building Company is duly qualified to transact such business
and is in good standing in each jurisdiction listed on Schedule
III attached hereto and, to the knowledge of the attorneys listed
on Schedule VI which are all of the attorneys at Kennedy Covington
Lobdell & Hickman who are currently working on matters for the
Company or its Subsidiaries, without independent investigation, is
duly qualified to transact such business and is in good standing
under the laws of each other jurisdiction in which the conduct of
its business or its ownership, management or leasing of property
requires such qualification except to the extent that the failure
to be so qualified or be in good standing in each such
jurisdiction would not have a material adverse effect on the
Company and its Subsidiaries taken as a whole;
(iii) the execution and delivery of the Indenture by
the Partnership and this Agreement by each of the Company and the
Partnership, and the performance by the Partnership of its
obligations under the Indenture and by each of the Company and
the Partnership of its obligations under this Agreement, will not
(a) contravene (i) any provision of Applicable Law or, to the
knowledge of the attorneys listed on Schedule VI which are all of
the attorneys at Kennedy Covington Lobdell & Hickman who are
currently working on matters for the
26
<PAGE> 27
Company or its Subsidiaries, without independent investigation,
any provision of applicable law or statute or any order, rule or
regulation of any court or governmental agency, body or court
having jurisdiction over the Company, its Subsidiaries or any of
their respective properties, except for such contraventions of any
such provision of applicable law or statute or any such order,
rule or regulation of any court or governmental agency, body or
court having jurisdiction over the Company, its Subsidiaries or
any of their respective properties which individually or in the
aggregate would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its Subsidiaries
taken as a whole (a "Material Adverse Effect") or (ii) the
Articles of Incorporation or by-laws of the Company or the
Agreement of Limited Partnership or, (b) to such counsel's
knowledge after due inquiry, (i) conflict with or result in a
breach of any of the terms or provisions of, or constitute a
default under, any agreement or other instrument identified on
Schedule IV attached hereto or, to the knowledge of the attorneys
listed on Schedule VI which are all of the attorneys at Kennedy
Covington Lobdell & Hickman who are currently working on matters
for the Company or its Subsidiaries, without independent
investigation, any agreement or other instrument to which the
Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound or to which any of the
property or assets of the Company or any of its Subsidiaries is
subject except for such conflicts, breaches or defaults with
respect to any such unscheduled agreements or instruments which
individually or in the aggregate would not have a Material Adverse
Effect; provided that such counsel need not opine as to whether
the execution and delivery of the Indenture by the Partnership and
this Agreement by each of the Company and the Partnership, and the
performance by the Partnership of its obligations under the
Indenture and by each of the Company and the Partnership of its
obligations under this Agreement will constitute a violation of or
a default under any covenant, restriction or provision with
respect to financial ratios or tests or any aspect of the
financial ratios or tests or any aspect of the financial condition
or results of operations of the Company or the Partnership, or
(ii) contravene, violate or conflict with, any judgment, order or
decree, known to such counsel, of any Governmental Authority or,
to the knowledge of the attorneys listed on Schedule VI which are
all of the attorneys at Kennedy Covington Lobdell & Hickman who
are currently working on matters for the Company or its Subsidiar-
27
<PAGE> 28
ies, without independent investigation, any judgment, order or
decree of any governmental body, agency or court having
jurisdiction over the Company or any Subsidiary except for such
contraventions, violations or conflicts with any such judgment,
order or decree of any governmental body, agency or court having
jurisdiction over the Company or any Subsidiary which individually
or in the aggregate would not have a Material Adverse Effect;
(a) "Governmental Approval" means any consent,
approval, order or decree, license, authorization or validation
of, or filing with, any Governmental Authority pursuant to
Applicable Laws, (b) "Governmental Authority" shall mean any
United States or State of North Carolina court or legislative,
judicial, administrative or regulatory body or agency and (c)
"Applicable Laws" means the Maryland General Corporation Law and
those laws, statutes, rules and regulations of the United States
of America and the State of North Carolina that, in such counsel's
experience, are normally applicable to transactions of the type
contemplated by this Agreement; provided, that such counsel need
express no opinion as to (x) the "blue sky" or state securities or
real estate syndication laws of any jurisdiction or (y) municipal
laws or the laws of any agencies within any state.
(iv) To their knowledge after due inquiry, there are no
legal or governmental proceedings pending or threatened to which
the Company or any Subsidiary or any Affiliate of the Company is a
party or to which any of their properties or the Communities is
subject that are required to be described in the Registration
Statement or the Prospectus and are not so described or any
statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement that are
not described or filed as required;
(v) The Company and each Subsidiary has all necessary
consents, authorizations, approvals, orders, certificates and
permits of and from, and has made all declarations and filings
with, all federal, state, local and other governmental
authorities, all self-regulatory organizations and all courts and
other tribunals, to own, lease, license and use its properties and
assets and to conduct its business in the manner described in the
Prospectus, except to the extent that the failure to obtain or
file would not have a Material Adverse Effect; and neither the
Company nor any such Subsidiary has received any actual notice of
any proceed-
28
<PAGE> 29
ing relating to revocation or modification of any Governmental
Approval or, to the knowledge of the attorneys listed on Schedule
VI which are all of the attorneys at Kennedy Covington Lobdell &
Hickman who are currently working on matters for the Company or
its Subsidiaries, without independent investigation, any such
license, permit, certificate, consent, order, approval or other
authorization except for such revocations or modifications of any
such licenses, permits, certificates, consents, orders, approvals
or other authorizations which individually or in the aggregate
would not have a Material Adverse Effect, in each case, except as
described in the Registration Statement and the Prospectus; and
each of the Company or its Subsidiaries is in compliance with all
Applicable Laws and, to the knowledge of the attorneys listed on
Schedule VI which are all of the attorneys at Kennedy Covington
Lobdell & Hickman who are currently working on matters for the
Company or its Subsidiaries, without independent investigation,
all laws and regulations except to the extent that failure to so
comply with all such laws and regulations would not have a
Material Adverse Effect, in each case, relating to the conduct of
its business as conducted as of the date of the Prospectus; and
(vi) The Company and each Subsidiary (1) is in
compliance with any and all applicable federal, state and local
laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"), (2) has
received all permits, licenses or other approvals required of them
under applicable Environmental Laws to conduct their businesses
and (3) is in compliance with all terms and conditions of any such
permit, license or approval, except where such non-compliance with
Environmental Laws, failure to receive required permits, licenses
or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals are otherwise
disclosed in the Prospectus or would not, singly or in the
aggregate, have a material adverse effect on the Company and its
Subsidiaries, taken as a whole.
Such counsel shall also include a statement in such opinion to the
following effect: we have reviewed the Registration Statement and the Prospectus
and participated in conferences with officers and other representatives of the
Company and the Partnership and counsel for the Company and the Partnership at
which the contents of the Registration Statement and related matters were
discussed and on the basis of the foregoing:
29
<PAGE> 30
(i) No facts have come to such counsel's attention
which cause it to believe that the Registration Statement
(excluding the financial statements and schedules and other
financial and statistical data included or incorporated therein,
as to which such counsel need express no belief), at the time it
became effective, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and
(ii) No facts have come to such counsel's attention
which cause it to believe that the Prospectus (excluding the
financial statements and schedules and other financial and
statistical data included or incorporated therein, as to which
such counsel need express no belief), as of its date and the
Closing Date contained an untrue statement of a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
In rendering such opinions, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the United States and
the State of Maryland, to the extent such counsel deems proper and to the extent
specified in such opinion, if at all, upon an opinion or opinions (in form and
substance reasonably satisfactory to Underwriters' counsel) of other counsel
reasonably acceptable to the Underwriters' counsel, familiar with the applicable
laws; (B) as to matters of fact, to the extent such counsel deems proper, on
certificates of responsible officers of the Partnership and the Company and
certificates or other written statements of officials of jurisdictions having
custody of documents respecting the corporate existence or good standing of the
Partnership and the Company. The opinion of such counsel for the Partnership and
the Company shall state that the opinion of any such other counsel upon which
they relied is in form satisfactory to such counsel and, in such counsel's
opinion, the Underwriters and they are justified in relying thereon. With
respect to the matters to be covered in the last paragraph of subparagraph (f)
and subparagraph (h)(iv) above counsel may state their opinion and belief is
based upon their participation in the preparation of the Registration Statement
and the Prospectus and any amendment or supplement thereto but is without
independent check or verification except as specified.
The opinion of Goodwin, Procter & Hoar LLP described above shall be
rendered to the Underwriters at the request of the Partnership and the Company
and shall so state therein.
30
<PAGE> 31
(h) on the date hereof and on the Closing Date, Deloitte & Touche LLP,
Arthur Andersen LLP and Reznick Fedder & Silverman shall have furnished to you
letters, dated such date, in form and substance satisfactory to you, containing
statements and information of the type customarily included in accountants
"comfort letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement and the
Prospectus;
(i) you shall have received on and as of the Closing Date an opinion
of Skadden, Arps, Slate, Meagher & Flom LLP, counsel to the Underwriters, with
respect to the validity of the Indenture and the Securities, the Registration
Statement, the Prospectus and other related matters as the Representatives may
reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters;
(j) on or prior to the Closing Date, the Company shall have furnished
to the Representatives such further certificates and documents as the
Representatives shall reasonably request; and
(k) on or prior to the Closing Date, the Partnership shall have
delivered to the Representatives an amendment to the Credit Agreement, dated
November 18, 1996, by and among the Partnership, as borrower, and First Union
National Bank of North Carolina, as agent and lender, and Wachovia Bank of North
Carolina, N.A., as lender, (the "Credit Agreement"), amending the provisions of
Section 7.12 of the Credit Agreement, duly executed and delivered by the parties
thereto in form and substance satisfactory to the Representatives and their
counsel.
7. The Partnership and the Company, jointly and severally, hereby
agree to indemnify and hold harmless each Underwriter and each person, if any,
who controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages and liabilities (including without limitation the legal
fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or
the Prospectus (as amended or supplemented if the Partnership and the Company
shall have furnished any amendments or supplements thereto) or any preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not
31
<PAGE> 32
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Partnership and/or the Company in writing by
such Underwriter through the Representatives expressly for use therein;
provided, however, that the foregoing indemnity with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter (or to the benefit
of the person controlling such Underwriter) from whom the person asserting any
such losses, claims, damages or liabilities purchased Securities if such untrue
statement or omission or alleged untrue statement or omission made in such
preliminary prospectus is eliminated or remedied in the Prospectus (as amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto) and, if required by law, a copy of the Prospectus (as so
amended or supplemented) shall not have been furnished to such person at or
prior to the written confirmation of the sale of such Securities to such person.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Partnership, the Company and its directors, each of the
officers who sign the Registration Statement and each person who controls the
Company or the Partnership within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, to the same extent as the foregoing
indemnity from the Partnership and the Company to each Underwriter, but only
with reference to information relating to such Underwriter furnished to the
Partnership or the Company in writing by such Underwriter through the
Representatives expressly for use in the Registration Statement, the Prospectus,
any amendment or supplement thereto, or any preliminary prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii)
32
<PAGE> 33
the Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person or (iii) the named parties in
any such proceeding (including any impleaded parties) include both the
Indemnifying Person and the Indemnified Person and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the Indemnifying Person
shall not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all Indemnified Persons, and that all
such fees and expenses shall be reimbursed as they are incurred. Any such
separate firm for the Underwriters and such control persons of Underwriters
shall be designated in writing by the first of the named Representatives on
Schedule I hereto and any such separate firm for the Partnership or the Company,
its directors, its officers who sign the Registration Statement and such control
persons of the Partnership or the Company or authorized representatives shall be
designated in writing by the Partnership or the Company. The Indemnifying
Person shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees to indemnify any
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an Indemnified Person shall have requested an Indemnifying Person to reimburse
the Indemnified Person for fees and expenses of counsel as contemplated by the
third sentence of this paragraph, the Indemnifying Person agrees that it shall
be liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 30 days after receipt
by such Indemnifying Person of the aforesaid request and (ii) such Indemnifying
Person shall not have reimbursed the Indemnified Person in accordance with such
request prior to the date of such settlement. However, if it is ultimately
determined that an Indemnified Person was not entitled to indemnification
hereunder, such Indemnified Person shall be responsible for repaying or
reimbursing the Indemnifying Person for all amounts so paid or incurred by such
Indemnifying Person pursuant to this paragraph. No Indemnifying Person shall,
without the prior written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all liability on claims
that are the subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs
of this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or
33
<PAGE> 34
liabilities referred to therein, then each Indemnifying Person under such
paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall
contribute to the amount paid or payable by such Indemnified Person as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Partnership and the
Company on the one hand and the Underwriters on the other hand from the offering
of the Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Partnership and the Company on the one hand and the Underwriters on
the other in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Partnership and the
Company on the one hand and the Underwriters on the other shall be deemed to be
in the same respective proportions as the net proceeds from the offering of such
Securities (before deducting expenses) received by the Partnership and the total
underwriting discounts and the commissions received by the Underwriters bear to
the aggregate public offering price of the Securities. The relative fault of the
Partnership and the Company on the one hand and the Underwriters on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Partnership or
the Company or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Partnership, the Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this Section 7 were
determined by PRO RATA allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Person as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No
34
<PAGE> 35
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 7 are several in proportion
to the respective principal amount of the Securities set forth opposite their
names in Schedule I hereto, and not joint.
The remedies provided for in this Section 7 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Partnership and the Company set
forth in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation
made by or on behalf of any Underwriter or any person controlling any
Underwriter or by or on behalf of the Partnership, the Company, its officers or
directors or any other person controlling the Company and (iii) acceptance of
and payment for any of the Securities.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representatives, by notice given to
the Partnership and the Company, if after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange, the National Association of
Securities Dealers, Inc., the Chicago Board Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of or guaranteed by the Company or the Partnership shall have been
suspended on any exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activities in New York shall have been declared
by either Federal or New York State authorities, or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis that, in the judgment of the Representatives,
is material and adverse and which, in the judgment of the Representatives, makes
it impracticable to market the Securities on the terms and in the manner
contemplated in the Prospectus.
9. If, on the Closing Date, any one or more of the Underwriters shall
fail or refuse to purchase Securities which it or they have agreed to purchase
under this Agreement, and the aggregate principal amount of Securities which
such defaulting Underwriter or Underwriters
35
<PAGE> 36
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate principal amount of the Securities, the other Underwriters shall be
obligated severally in the proportions that the principal amount of Securities
set forth opposite their respective names in Schedule I hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all
such non-defaulting Underwriters, or in such other proportions as the
Representatives may specify, to purchase the Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; PROVIDED that in no event shall the principal amount of Securities that
any Underwriter has agreed to purchase pursuant to Section 1 be increased
pursuant to this Section 9 by an amount in excess of one-tenth of such principal
amount of Securities without the written consent of such Underwriter. If, on the
Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase
Securities and the aggregate principal amount of Securities with respect to
which such default occurs is more than one-tenth of the aggregate principal
amount of Securities to be purchased, and arrangements satisfactory to you and
the Partnership and the Company for the purchase of such Securities are not made
within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or the Partnership and
the Company. In any such case either you or the Partnership shall have the right
to postpone the Closing Date, but in no event for longer than seven days, in
order that the required changes, if any, in the Registration Statement and in
the Prospectus or in any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this
Agreement.
10. If this Agreement shall be terminated by the Underwriters, or any
of them, because of any failure or refusal on the part of the Partnership or the
Company to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Partnership or the Company shall be unable
to perform their obligations under this Agreement or any condition of the
Underwriters' obligations cannot be fulfilled, the Partnership and the Company
agree to reimburse the Underwriters or such Underwriters as have so terminated
this Agreement with respect to themselves, severally, for all out-of-pocket
expenses (including the fees and expenses of their counsel) reasonably incurred
by such Underwriters in connection with this Agreement or the offering of
Securities.
11. This Agreement shall inure to the benefit of and be binding upon
the Partnership, the Company, the Underwriters, any controlling persons referred
to herein and their respective successors and assigns. Nothing expressed or
mentioned in this Agreement is intended or shall
36
<PAGE> 37
be construed to give any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. No purchaser of Securities from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
12. Any action by the Underwriters hereunder may be taken by you
jointly or by the first of the named Representatives set forth in Schedule I
hereto alone on behalf of the Underwriters, and any such action taken by you
jointly or by the first of the named Representatives set forth in Schedule I
hereto alone shall be binding upon the Underwriters. All notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of telecommunication.
Notices to the Underwriters shall be given at the address set forth in Schedule
II hereto. Notices to the Partnership and the Company shall be given to it at
212 South Tryon Street, Suite 500, Charlotte, North Carolina 28211, (telex:
(704) 333-8340); Attention: Mr. William F. Paulsen, President and Chief
Executive Officer.
13. This Agreement may be signed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same
instrument.
37
<PAGE> 38
14. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to the
conflicts of laws provisions thereof.
Very truly yours,
SUMMIT PROPERTIES PARTNERSHIP, L.P.
By: Summit Properties Inc., its general partner
By: /s/ Michael L. Schwarz
-------------------------------
Name: Michael L. Schwarz
Title: Executive Vice President
SUMMIT PROPERTIES INC.
By: /s/ Michael L. Schwarz
-------------------------------
Name: Michael L. Schwarz
Title: Executive Vice President
Accepted: August 7, 1997
J.P. MORGAN SECURITIES INC.
MERRILL LYNCH, PIERCE,
FENNER & SMITH INCORPORATED
MORGAN STANLEY & CO. INCORPORATED
FIRST UNION CAPITAL MARKETS CORP.
Acting severally on behalf of themselves and the several
Underwriters listed in Schedule II hereto.
By: J.P. MORGAN SECURITIES INC.
By: /s/ Keysha Bailey
------------------------------
Name: Keysha Bailey
Title: Vice President
<PAGE> 39
SCHEDULE I
Representatives: J.P. Morgan Securities Inc., Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Morgan Stanley & Co.
Incorporated, First Union Capital Markets Corp.
Underwriting Agreement
dated: August 7, 1997
Registration Statement
No.: 333-25575
Title of Securities: 6.80% Notes Due 2002 (the "2002 Notes"), 6.95%
Notes due 2004 (the "2004 Notes") and 7.20% Notes
Due 2007 (the "2007 Notes" and, together with the
2002 Notes and the 2004 Notes, the "Securities")
Aggregate principal
amount: $25,000,000 of 2002 Notes, $50,000,000 of 2004 Notes
and $50,000,000 of 2007 Notes
Price to Public: 99.940% of the principal amount of the 2002 Notes,
99.764% of the principal amount of the 2004 Notes
and 99.830% principal amount of the 2007 Notes, plus
accrued interest, if any, from August 12, 1997
Indenture: Indenture dated as of August 7, 1997 and the
Supplemental Indenture to be dated as of August 12,
1997, both between the Partnership and First Union
National Bank as Trustee
I-1
<PAGE> 40
Maturity: August 15, 2002 with respect to the 2002 Notes,
August 15, 2004 with respect to the 2004 Notes and
August 15, 2007 with respect to the 2007 Notes
Interest Rate: 6.80% with respect to the 2002 Notes, 6.95% with
respect to the 2004 Notes and 7.20% with respect to
the 2007 Notes
Interest Payment Dates: February 15 and August 15, commencing
February 15, 1998
Optional Redemption
Provisions: The Securities are redeemable at any time at the
option of the Partnership, in whole or in part, at a
redemption price equal to the sum of (i) the
principal amount of the Securities being redeemed
plus accrued interest thereon to the redemption date
and (ii) the Make-Whole Amount (as defined in the
Prospectus Supplement relating to the Securities
dated August 7, 1998), if any
Sinking Fund Provisions: None
Closing Date and
Time of Delivery: The Closing will be held at 10:00 a.m. (E.S.T.) on
August 12, 1997, with the Securities being delivered
through the book-entry facilities of The Depository
Trust Company ("DTC") and made available for
checking by DTC and the Trustee at least 24 hours
prior to the Closing Date
Closing Location: Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, NY 10022
I-2
<PAGE> 41
Address for Notices
to Underwriters: c/o J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
I-3
<PAGE> 42
SCHEDULE II
<TABLE>
<CAPTION>
Principal Amount
of Securities to be Purchased
-----------------------------
Underwriter 2002 2004 2007
- ----------- ---- ---- ----
<S> <C> <C> <C>
J.P. Morgan Securities Inc. .......... $16,250,000 $32,500,000 $32,500,000
Merrill Lynch & Co. Inc. ............. 3,750,000 7,500,000 7,500,000
Morgan Stanley & Co. Incorporated .... 3,750,000 7,500,000 7,500,000
First Union Capital Markets .......... 1,250,000 2,500,000 2,500,000
----------- ----------- -----------
Total .............. $25,000,000 $50,000,000 $50,000,000
=========== =========== ===========
</TABLE>
<PAGE> 43
SCHEDULE III
Foreign Qualifications
<TABLE>
<CAPTION>
COMPANY STATE OF ORGANIZATION STATES OF FOREIGN
QUALIFICATION
- --------------------------------------------------------------------------------
<S> <C> <C>
Summit Properties Inc. - Maryland - Alabama
- Florida
- Georgia
- Indiana
- North Carolina
- Ohio
- Pennsylvania
- South Carolina
- Tennessee
- Virginia
- --------------------------------------------------------------------------------
Summit Properties - Delaware - Alabama
Partnership, L.P. - Florida
- Georgia
- Indiana
- Maryland
- North Carolina
- Ohio
- Pennsylvania
- South Carolina
- Tennessee
- Virginia
- --------------------------------------------------------------------------------
</TABLE>
III-1
<PAGE> 44
<TABLE>
<CAPTION>
COMPANY STATE OF ORGANIZATION STATES OF FOREIGN
QUALIFICATION
- --------------------------------------------------------------------------------
<S> <C> <C>
Summit Management - Maryland - Alabama
Company - Delaware
- Florida
- Georgia
- Indiana
- North Carolina
- Ohio
- Pennsylvania
- South Carolina
- Tennessee
- Virginia
- --------------------------------------------------------------------------------
Summit Apartment - Florida - North Carolina
Builders, Inc.
- --------------------------------------------------------------------------------
</TABLE>
III-2
<PAGE> 45
SCHEDULE IV
Material Contracts
1. Articles of Incorporation of Summit Management Company. (Incorporated
by reference to Exhibit 10.3 to the Annual Report on Form 10-K of
Summit Properties Inc. for the fiscal year ended December 31, 1993,
File No. 001-12792.)
2. Bylaws of Summit Management Company. (Incorporated by reference to
Exhibit 10.4 to the Annual Report on Form 10-K of Summit Properties
Inc. for the fiscal year ended December 31, 1993, File No. 001-12792.)
3. Indemnification Agreement, dated January 29, 1994, among Summit
Properties Inc., Summit Properties Partnership, L.P. and the
individuals named therein. (Incorporated by reference to Exhibit 10.16
to the Annual Report on Form 10-K of Summit Properties Inc. for the
fiscal year ended December 31, 1993, File No. 001-12792.)
4. Lock-Up Agreement, dated February 8, 1994, between Summit Properties
Inc., Morgan Stanley & Co. Incorporated, Prudential Securities
Incorporated, The Robinson-Humphrey Company, Inc., Interstate/Johnson
Lane Corporation, Morgan Stanley International, Prudential-Bache
Securities, The Robinson-Humphrey Company, Inc. and Interstate/Johnson
Lane Corporation and the shareholders named therein. (Incorporated by
reference to Exhibit 10.20 to the Annual Report on Form 10-K of Summit
Properties Inc. for the fiscal year ended December 31, 1993, File No.
001-12792.)
5. Waiver of Rescission Rights and Contribution Agreement, dated January
18, 1994, between Summit Properties Inc. and Street Real Estate
Company. (Incorporated by reference to Exhibit 10.23 to the
Registration Statement on Form S-11 of Summit Properties Inc.,
Registration No. 33-90706.)
6. Omnibus Option Agreement, dated as of December 1, 1993, among Summit
Properties and the Grantors named therein. (Incorporated by reference
to Exhibit 10.14 to the Annual Report on Form 10-K of Summit Properties
Inc. for the fiscal year ended December 31, 1993, File No. 001-12792.)
IV-1
<PAGE> 46
7. Assignment, Assumption and Option Agreement for Henderson Place/McGuire
Partners Limited Partnership, dated February 8, 1994, between Summit
Properties Partnership, L.P. and the grantors named therein.
(Incorporated by reference to Exhibit 10.21 to the Annual Report on
Form 10-K of Summit Properties Inc. for the fiscal year ended December
31, 1993, File No. 001-12792.)
8. Option Agreement, dated January 19, 1994, between Summit Properties
Partner ship, L.P. and LMES Limited Partnership. (Incorporated by
reference to Exhibit 10.22 to the Annual Report on Form 10-K of Summit
Properties Inc. for the fiscal year ended December 31, 1993, File No.
001-12792.)
9. Form of Option and Transfer Agreement, among Summit Management Company,
William F. Paulsen and Summit Properties Partnership, L.P.
(Incorporated by reference to Exhibit 10.6 to the Registration
Statement on Form S-11 of Summit Properties Inc., Registration No.
33-90706.)
10. Summit Properties Inc. 1994 Stock Option and Incentive Plan.
(Incorporated by reference to Exhibit 10.6 to the Registration
Statement on Form S-11 of Summit Properties Inc., Registration No.
33-90706.)
11. Summit Properties Inc. 1996 Non-Qualified Employee Stock Purchase Plan.
(Incorporated by reference to Exhibit 10.5 to the Registration
Statement of Form S-8, of Summit Properties Inc., Registration No.
333-00078.)
12. Employment Agreement between Summit Properties Inc. and William F.
Paulsen. (Incorporated by reference to Exhibit 10.7 to the Registration
Statement on Form S-11 of Summit Properties Inc., Registration No.
33-90706.)
13. Employment Agreement between Summit Properties Inc. and William B.
McGuire, Jr. (Incorporated by reference to Exhibit 10.8 to the
Registration Statement on Form S-11 of Summit Properties Inc.,
Registration No. 33-90706.)
14. Employment Agreement between Summit Properties Inc. and Raymond V.
Jones. (Incorporated by reference to Exhibit 10.9 to the Registration
Statement on Form S-11 of Summit Properties Inc., Registration No.
33-90706.)
IV-2
<PAGE> 47
15. Employment Agreement between Summit Properties Inc. and David F.
Tufaro. (Incorporated by reference to Exhibit 10.11 to the Registration
Statement on Form S-11 of Summit Properties Inc., Registration No.
33-90706.)
16. Employment Agreement between Summit Properties Inc. and John C. Moore.
(Incorporated by reference to Exhibit 10.12 to the Registration
Statement on Form S-11 of Summit Properties Inc., Registration No.
33-90706.)
17. Employment Agreement between Summit Properties Inc. and Michael G.
Malone. (Incorporated by reference to Exhibit 10.12.1 to the
Registration Statement on Form S-11 of Summit Properties Inc.,
Registration No. 33-90706.)
18. Employment Agreement between Summit Properties Inc. and Keith L.
Downey. (Incorporated by reference to Exhibit 10.12.3 to the Annual
Report on Form 10-K of Summit Properties Inc. for the fiscal year ended
December 31, 1993, File No. 001-12792.)
19. Employment Agreement between Summit Properties Inc. and Christopher A.
Hughes. (Incorporated by reference to Exhibit 10.12.4 to the Annual
Report on Form 10-K of Summit Properties Inc. for the fiscal year ended
December 31, 1993, File No. 001-12792.)
20. Employment Agreement between Summit Properties Inc. and William B.
Hamilton. (Incorporated by reference to Exhibit 10.36 to the Annual
Report on Form 10-K of Summit Properties Inc. for the fiscal year ended
December 31, 1996, file No. 001-12792.)
21. Noncompetition Agreement between Summit Properties Inc. and William F.
Paulsen. (Incorporated by reference to Exhibit 10.24 to the
Registration Statement on Form S-11 of Summit Properties Inc.,
Registration No. 33-90706.)
22. Noncompetition Agreement between Summit Properties Inc. and William B.
McGuire, Jr. (Incorporated by reference to Exhibit 10.25 to the
Registration Statement on Form S-11 of Summit Properties Inc.,
Registration No. 33-90706.)
23. Noncompetition Agreement between Summit Properties Inc. and Raymond V.
Jones. (Incorporated by reference to Exhibit 10.26 to the Registration
Statement on Form S-11 of Summit Properties Inc., Registration No.
33-90706.)
IV-3
<PAGE> 48
24. Noncompetition Agreement between Summit Properties Inc. and Keith H.
Kuhlman. (Incorporated by reference to Exhibit 10.27 to the
Registration Statement on Form S-11 of Summit Properties Inc.,
Registration No. 33-90706.)
25. Noncompetition Agreement between summit Properties Inc. and David F.
Tufaro. (Incorporated by reference to Exhibit 10.28 to the Registration
Statement on Form S-11 of Summit Properties Inc., Registration No.
33-90706.)
26. Noncompetition Agreement between Summit Properties Inc. and John T.
Gray. (Incorporated by reference to Exhibit 10.29 to the Registration
Statement on Form S-11 of Summit Properties Inc., Registration No.
33-90706.)
27. Noncompetition Agreement between Summit Properties Inc. and John C.
Moore. (Incorporated by reference to Exhibit 10.30 to the Registration
Statement on Form S-11 of Summit Properties Inc., Registration No.
33-90706.)
28. Noncompetition Agreement between Summit Properties Inc. and Michael G.
Malone. (Incorporated by reference to Exhibit 10.31 to the Registration
Statement on Form S-11 of Summit Properties Inc., Registration No.
33-90706.)
29. Noncompetition Agreement between Summit Properties Inc. and William B.
Hamilton. (Incorporated by reference to Exhibit 10.37 to the Annual
Report on Form 10-K of Summit Properties Inc. for the fiscal year ended
December 31, 1996, file No. 001-12792.)
30. Form of Agreement to Purchase Partnership Interests. (Incorporated by
reference to Exhibit 10.13 to the Registration Statement on Form S-11
of Summit Properties Inc., Registration No. 33-90706.)
31. Acquisition Agreement, dated December 29, 1993, between Stony Point
Limited Partnership and Summit Management Company. (Incorporated by
reference to Exhibit 10.15 to the Registration Statement on Form S-11
of Summit Properties Inc., Registration No. 33-90706.)
32. $2,500,000 Promissory Note, dated February 15, 1994 and maturing on
February 15, 2004, from Summit Management Company to Old Summit
Management Company. (Incorporated by reference to Exhibit 10.17 to the
Annual Report on
IV-4
<PAGE> 49
Form 10-K of Summit Properties Inc. for the fiscal year ended
December 31, 1993, File No. 001-12792.)
33. $125,000,000 Promissory Note, dated February 15, 1994 and maturing on
February 15, 2001, from Summit Properties Inc. to Northwestern Mutual
Life Insurance Company. (Incorporated by reference to Exhibit 10.18.1
to the Annual Report on Form 10-K of Summit Properties Inc. for the
fiscal year ended December 31, 1993, File No. 001-12792.)
34. Mortgage and Security Agreement and Financing Statement, dated February
15, 1994, between Summit Properties Inc. and Northwestern Mutual Life
Insurance Company. (Incorporated by reference to Exhibit 10.18.2 to the
Annual Report on Form 10-K of Summit Properties Inc. for the fiscal
year ended December 31, 1993, File No. 001-12792.)
35. $31,000,000 Loan Agreement, dated July 31, 1996, between Summit
Properties Partnership, L.P. and Wachovia Bank of North Carolina, N.A.
(Incorporated by reference to Exhibit 10.34 to the Quarterly Report on
Form 10-Q of Summit Properties Inc. for the fiscal quarter ended
September 30, 1996, File No. 001-12792.)
36. $150,000,000 Credit Agreement, dated November 18, 1996, among Summit
Properties Partnership, L.P., First Union National Bank of North
Carolina and Wachovia Bank of North Carolina, N.A. (Incorporated by
reference to Exhibit 10.35 to the Annual Report on Form 10-K of Summit
Properties Inc. for the fiscal year ended December 31, 1996, file No.
001-12792.)
37. Registration Rights Agreement, dated December 11, 1995, between Summit
Properties Inc. and Bissell Ballantyne, LLC. (Incorporated by reference
to Exhibit 10.2 to the Registration Statement on Form S-3 of Summit
Properties Inc., Registration No. 333-24669.)
38. Registration Rights Agreement, dated January 10, 1996, among Summit
Properties Inc., Joseph H. Call and Gary S. Cangelosi. (Incorporated by
reference to Exhibit 10.2 to the Registration Statement on Form S-3 of
Summit Properties Inc., Registration No. 333-24669.)
IV-5
<PAGE> 50
39. Registration Rights Agreement, dated February 20, 1997, among Summit
Properties Inc., The Northwestern Mutual Life Insurance Company, J.
Ronald Terwelleger, J. Ronald Terwilliger Grantor Trust, Crow
Residential Realty Investors, L.P., Douglas A. Hoeksema, Randy J. Pace,
Clifford A. Breining, TCF Residential Partnership, Ltd. and Trammell S.
Crow. (Incorporated by reference to Exhibit 10.2 to the Registration
Statement on Form S-3 of Summit Properties Inc., Registration No.
333-24669.)
40. Registration Rights Agreement, dated February 8, 1994, between Summit
Properties Inc. and the Continuing Investors named therein.
(Incorporated by reference to Exhibit 10.2 to the Annual Report on Form
10-K of Summit Properties Inc. for the fiscal year ended December 31,
1993, File No. 001-12792.)
IV-6
<PAGE> 51
SCHEDULE V
List of all of the attorneys at Goodwin, Procter & Hoar LLP who are
currently working on matters for the Company or any of its Subsidiaries.
Stephen W. Carr, P.C.
Edward L. Glazer, P.C.
Gilbert G. Menna, P.C.
David W. Watson
Stephen G. Charkoudian
Diana T. McKearney
Linda Ratnik-Tamm
Jennifer H. Weiss
<PAGE> 52
SCHEDULE VI
List of all of the attorneys at Kennedy Covington Lobdell & Hickman
which are currently working on matters for the Company or any of its
Subsidiaries.
David H. Jones
William C. Livingston
Maynard E. Tipps
Raymond E. Owens
Alice C. Richey
Joseph W. Moss
John Nicholas Suhr, Jr.
John H. Culver, III
Felicia A. Washington
Alan H. Peterson
Michael R. Thornton
<PAGE> 1
EXHIBIT 4.1
- --------------------------------------------------------------------------------
SUMMIT PROPERTIES PARTNERSHIP, L.P.
TO
FIRST UNION NATIONAL BANK
Trustee
--------------------
Indenture
Dated as of August 7, 1997
--------------------
Senior Debt Securities
- --------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
Page
RECITALS OF THE PARTNERSHIP....................................................1
ARTICLE ONE - DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION......................................................1
SECTION 101. Definitions..................................................1
SECTION 102. Compliance Certificates and Opinions........................10
SECTION 103. Form of Documents Delivered to Trustee......................11
SECTION 104. Acts of Holders.............................................11
SECTION 105. Notices, etc., to Trustee and Partnership...................13
SECTION 106. Notice to Holders: Waiver...................................14
SECTION 107. Counterparts; Effect of Headings and Table of Contents......15
SECTION 108. Successors and Assigns......................................15
SECTION 109. Severability Clause.........................................15
SECTION 110. Benefits of Indenture.......................................15
SECTION 111. Governing Law...............................................15
SECTION 112. Legal Holidays..............................................15
SECTION 113. Non-Recourse................................................16
SECTION 114. Conflict with Trust Indenture Act...........................16
ARTICLE TWO - SECURITIES FORMS................................................16
SECTION 201. Forms of Securities.........................................16
SECTION 202. Form of Trustee's Certificate of Authentication.............17
SECTION 203. Securities Issuable in Global Form..........................17
ARTICLE THREE - THE SECURITIES................................................19
SECTION 301. Amount Unlimited; Issuable in Series........................19
SECTION 302. Denominations...............................................22
SECTION 303. Execution, Authentication, Delivery and Dating..............23
SECTION 304. Temporary Securities........................................25
SECTION 305. Registration, Registration of Transfer and Exchange.........27
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities............31
SECTION 307. Payment of Interest; Interest Rights Preserved..............32
SECTION 308. Persons Deemed Owners.......................................34
SECTION 309. Cancellation................................................35
SECTION 310. Computation of Interest.....................................35
ARTICLE FOUR - SATISFACTION AND DISCHARGE.....................................36
SECTION 401. Satisfaction and Discharge of Indenture.....................36
(i)
<PAGE> 3
<TABLE>
<S> <C>
SECTION 402. Application of Trust Funds............................................37
ARTICLE FIVE - REMEDIES.................................................................38
SECTION 501. Events of Default.....................................................38
SECTION 502. Acceleration of Maturity; Rescission and Annulment....................39
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.......40
SECTION 504. Trustee May File Proofs of Claim......................................41
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or
Coupons...............................................................42
SECTION 506. Application of Money Collected........................................42
SECTION 507. Limitation on Suits...................................................43
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium or
Make-Whole Amount, if any, Interest and Additional Amounts............44
SECTION 509. Restoration of Rights and Remedies....................................44
SECTION 510. Rights and Remedies Cumulative........................................44
SECTION 511. Delay or Omission Not Waiver..........................................44
SECTION 512. Control by Holders of Securities......................................44
SECTION 513. Waiver of Past Defaults...............................................45
SECTION 514. Waiver of Usury, Stay or Extension Laws...............................45
SECTION 515. Undertaking for Costs.................................................45
ARTICLE SIX - THE TRUSTEE...............................................................46
SECTION 601. Notice of Defaults....................................................46
SECTION 602. Certain Rights of Trustee.............................................46
SECTION 603. Not Responsible for Recitals or Issuance of Securities................48
SECTION 604. May Hold Securities...................................................48
SECTION 605. Money Held in Trust...................................................48
SECTION 606. Compensation and Reimbursement........................................48
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting Interests........49
SECTION 608. Resignation and Removal; Appointment of Successor.....................50
SECTION 609. Acceptance of Appointment by Successor................................51
SECTION 610. Merger, Conversion, Consolidation or Succession to BusineSection......52
SECTION 611. Appointment of Authenticating Agent...................................53
ARTICLE SEVEN - HOLDERS' LISTS AND REPORTS BY TRUSTEE AND
PARTNERSHIP.............................................................54
SECTION 701. Disclosure of Names and Addresses of Holders..........................54
SECTION 702. Reports by Trustee....................................................55
SECTION 703. Reports by Partnership................................................55
SECTION 704. Partnership to Furnish Trustee Names and Addresses of Holders.........55
ARTICLE EIGHT - CONSOLIDATION, MERGER, SALE, LEASE OR
CONVEYANCE..............................................................56
</TABLE>
(ii)
<PAGE> 4
<TABLE>
<S> <C>
SECTION 801. Consolidations and Mergers of Partnership and Sales, Leases and
Conveyances Permitted Subject to Certain Conditions...................56
SECTION 802. Rights and Duties of Successor Entity.................................56
SECTION 803. Officers' Certificate and Opinion of Counsel..........................57
ARTICLE NINE - SUPPLEMENTAL INDENTURES..................................................57
SECTION 901. Supplemental Indentures Without Consent of Holders....................57
SECTION 902. Supplemental Indentures with Consent of Holders.......................59
SECTION 903. Execution of Supplemental Indentures..................................60
SECTION 904. Effect of Supplemental Indentures.....................................60
SECTION 905. Conformity with Trust Indenture Act...................................60
SECTION 906. Reference in Securities to Supplemental Indentures....................60
ARTICLE TEN - COVENANTS.................................................................60
SECTION 1001. Payment of Principal, Premium or Make-Whole Amount, if any;
Interest and Additional Amounts......................................60
SECTION 1002. Maintenance of Office or Agency......................................61
SECTION 1003. Money for Securities Payments to Be Held in Trust....................62
SECTION 1004. Existence............................................................64
SECTION 1005. Maintenance of Properties............................................64
SECTION 1006. Insurance............................................................64
SECTION 1007. Payment of Taxes and Other Claims....................................64
SECTION 1008. Statement as to Compliance...........................................65
SECTION 1009. Additional Amounts...................................................65
SECTION 1010. Waiver of Certain Covenants..........................................66
ARTICLE ELEVEN - REDEMPTION OF SECURITIES...............................................66
SECTION 1101. Applicability of Article.............................................66
SECTION 1102. Election to Redeem; Notice to Trustee................................66
SECTION 1103. Selection by Trustee of Securities to Be Redeemed....................67
SECTION 1104. Notice of Redemption.................................................67
SECTION 1105. Deposit of Redemption Price..........................................68
SECTION 1106. Securities Payable on Redemption Date................................69
SECTION 1107. Securities Redeemed in Part..........................................70
ARTICLE TWELVE - SINKING FUNDS..........................................................70
SECTION 1201. Applicability of Article.............................................70
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities................70
SECTION 1203. Redemption of Securities for Sinking Fund............................71
ARTICLE THIRTEEN - REPAYMENT AT THE OPTION OF HOLDERS...................................71
SECTION 1301. Applicability of Article.............................................71
SECTION 1302. Repayment of Securities..............................................71
</TABLE>
(iii)
<PAGE> 5
<TABLE>
<S> <C>
SECTION 1303. Exercise of Option..........................................................72
SECTION 1304. When Securities Presented for Repayment Become Due
and Payable.................................................................72
SECTION 1305. Securities Repaid in Part...................................................73
ARTICLE FOURTEEN - DEFEASANCE AND COVENANT DEFEASANCE..........................................74
SECTION 1401. Applicability of Article: Partnership's Option to Effect Defeasance or
Covenant Defeasance.........................................................74
SECTION 1402. Defeasance and Discharge....................................................74
SECTION 1403. Covenant Defeasance.........................................................74
SECTION 1404. Conditions to Defeasance or Covenant Defeasance.............................75
SECTION 1405. Deposited Money and Government Obligations to Be Held in Trust;
Other Miscellaneous Provisions..............................................77
ARTICLE FIFTEEN - MEETINGS OF HOLDERS OF SECURITIES............................................78
SECTION 1501. Purposes for Which Meetings May Be Called...................................78
SECTION 1502. Call, Notice and Place of Meetings..........................................78
SECTION 1503. Persons Entitled to Vote at Meetings........................................78
SECTION 1504. Quorum; Action..............................................................79
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of
Meetings....................................................................80
SECTION 1506. Counting Votes and Recording Action of Meetings.............................81
SIGNATURES AND SEALS...........................................................................82
ACKNOWLEDGMENT.................................................................................83
EXHIBIT A
FORM OF REDEEMABLE OR NON-REDEEMABLE SENIOR SECURITY......................................A-1
EXHIBIT B
FORMS OF CERTIFICATION....................................................................B-1
</TABLE>
(iv)
<PAGE> 6
SUMMIT PROPERTIES PARTNERSHIP, L.P.
Reconciliation and tie between Trust Indenture Act of 1939 (the "1939
Act") and Indenture, dated as of August 7, 1997.
Trust Indenture
Act Section Indenture Section
Section 310(a)(1)................................. 607
(a)(2)................................. 607
(b)................................. 607, 608
Section 312(c)................................. 701
Section 313(a)................................. 702
(c)................................. 702
Section 314(a)................................. 703
(a)(4)................................. 1008
(c)(1)................................. 102
(c)(2)................................. 102
(e)................................. 102
Section 315(b)................................. 601
Section 316(a) (last sentence)................. 101 ("Outstanding")
(a)(1)(A)................................. 502, 512
(a)(1)(B)................................. 513
(b)................................. 508
Section 317(a)(1)................................. 503
(a)(2)................................. 504
Section 318(a)................................. 111
(c)................................. 111
- ----------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
Attention should also be directed to Section 318(c) of the 1939 Act,
which provides that the provisions of Sections 310 to and including 317 of the
1939 Act are a part of and govern every qualified indenture, whether or not
physically contained therein.
(v)
<PAGE> 7
INDENTURE, dated as of August 7, 1997, between SUMMIT PROPERTIES
PARTNERSHIP, L.P., a limited partnership organized under the laws of the State
of Delaware (hereinafter called the "Partnership"), having its principal office
at 212 South Tryon Street, Suite 500, Charlotte, North Carolina, 28281, and
First Union National Bank, a national banking association organized under the
laws of the United States of America (hereinafter called the "Trustee"), having
its Corporate Trust Office at 230 South Tryon Street, Charlotte, North Carolina
28288- 1179.
RECITALS OF THE PARTNERSHIP
The Partnership deems it necessary to issue from time to time for its
lawful purposes senior debt securities (hereinafter called the "Securities")
evidencing its unsecured and unsubordinated indebtedness, and has duly
authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of the Securities, to be issued in one or more series
as provided in this Indenture.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, that are deemed to be incorporated into this Indenture and
shall, to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Partnership, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE - DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION
SECTION 101. Definitions. For all purposes of this Indenture, except
as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well
as the singular;
(2) all other terms used herein which are defined in the
TIA, either directly or by reference therein, have the meanings
assigned to them therein, and the terms "cash transaction" and
"self-liquidating paper," as used in TIA Section 311, shall have the
meanings assigned to them in the rules of the Commission adopted under
the TIA;
<PAGE> 8
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with GAAP; and
(4) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
"ACT," when used with respect to any Holder, has the meaning specified
in Section 104.
"ADDITIONAL AMOUNTS" means any additional amounts which are required by
a Security or by or pursuant to a Board Resolution, under circumstances
specified therein, to be paid by the Partnership in respect of certain taxes
imposed on certain Holders and which are owing to such Holders.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"AUTHENTICATING AGENT" means any Person authorized by the Trustee
pursuant to Section 611 hereof to act on behalf of the Trustee to authenticate
Securities.
"AUTHORIZED NEWSPAPER" means a newspaper, printed in the English
language or in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays, Sundays
or holidays, and of general circulation in each place in connection with which
the term is used or in the financial community of each such place. Whenever
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different Authorized
Newspapers in the same city meeting the foregoing requirements and in each case
on any Business Day.
"BANKRUPTCY LAW" has the meaning specified in Section 501.
"BEARER SECURITY" means any Security established pursuant to Section
201 which is payable to bearer.
"BOARD OF DIRECTORS" means the board of directors of the Company, as
general partner of the Partnership, or any committee of that board duly
authorized to act hereunder.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company, as general partner of the
Partnership, to have been duly
2
<PAGE> 9
adopted by the Board of Directors and to be in full force and effect on the date
of such certification, and delivered to the Trustee.
"BUSINESS DAY," when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 301, any day, other than a Saturday or Sunday, that is not a day on
which banking institutions in that Place of Payment or particular location are
authorized or required by law, regulation or executive order to close.
"CEDEL" means Centrale de Livraison de Valeurs Mobilieres, S.A., or its
successor.
"COMMISSION" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or, if
at any time after execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties on such date.
"COMMON STOCK" means, with respect to any Person, all shares of capital
stock issued by such Person other than Preferred Stock.
"COMPANY" means Summit Properties Inc., a Maryland corporation and the
general partner of the Partnership, or any successor corporation thereto.
"CONVERSION EVENT" means the cessation of use of (i) a Foreign Currency
both by the government of the country which issued such currency and for the
settlement of transactions by a central bank or other public institutions of or
within the international banking community, (ii) the ECU both within the
European Monetary System and for the settlement of transactions by public
institutions of or within the European Communities or (iii) any currency unit
(or composite currency) other than the ECU for the purposes for which it was
established.
"CORPORATE TRUST OFFICE" means the office of the Trustee at which, at
any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at 230 South Tryon
Street, Charlotte, North Carolina 28288-1179.
"CORPORATION" includes corporations, associations, companies and
business trusts.
"COUPON" means any interest coupon appertaining to a Bearer Security.
"CUSTODIAN" has the meaning specified in Section 501.
"DEFAULTED INTEREST" has the meaning specified in Section 307.
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"DOLLAR" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from time
to time by the Council of the European Communities.
"EUROCLEAR" means Morgan Guaranty Trust Company of New York, Brussels
office, or its successor as operator of the Euroclear System.
"EUROPEAN COMMUNITIES" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"EUROPEAN MONETARY SYSTEM" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Communities.
"EVENT OF DEFAULT" has the meaning specified in Article Five.
"FOREIGN CURRENCY" means any currency, currency unit or composite
currency, including, without limitation, the ECU issued by the government of one
or more countries other than the United States of America or by any recognized
confederation or association of such governments.
"GAAP" means generally accepted accounting principles, as in effect
from time to time, as used in the United States applied on a consistent basis.
"GLOBAL SECURITY" means a Security evidencing all or a part of a series
of Securities issued to and registered in the name of the depositary for such
series, or its nominee, in accordance with Section 305, and bearing the legend
prescribed in Section 203.
"GOVERNMENT OBLIGATIONS" means securities which are (i) direct
obligations of the United States of America or the government which issued the
Foreign Currency in which the Securities of a particular series are payable, for
the payment of which its full faith and credit is pledged or (ii) obligations of
a Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America or such government which issued the Foreign
Currency in which the Securities of such series are payable, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States of America or such other government, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository
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receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of the Government
Obligation evidenced by such depository receipt.
"HOLDER" means, in the case of a Registered Security, the Person in
whose name a Security is registered in the Security Register and, in the case of
a Bearer Security, the bearer thereof and, when used with respect to any coupon,
shall mean the bearer thereof.
"INDENTURE" means this instrument as originally executed or as it may
be supplemented or amended from time to time by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of particular series of Securities established as
contemplated by Section 301; provided, however, that, if at any time more than
one Person is acting as Trustee under this instrument, "Indenture" shall mean,
with respect to any one or more series of Securities for which such Person is
Trustee, this instrument as originally executed or as it may be supplemented or
amended from time to time by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the terms of
the or those particular series of Securities for which such Person is Trustee
established as contemplated by Section 301, exclusive, however, of any
provisions or terms which relate solely to other series of Securities for which
such Person is Trustee, regardless of when such terms or provisions were
adopted, and exclusive of any provisions or terms adopted by means of one or
more indentures supplemental hereto executed and delivered after such Person had
become such Trustee but to which such Person, as such Trustee, was not a party.
"INDEXED SECURITY" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"INTEREST," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, shall mean
interest payable after Maturity, and, when used with respect to a Security which
provides for the payment of Additional Amounts pursuant to Section 1009,
includes such Additional Amounts.
"INTEREST PAYMENT DATE," when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"MAKE-WHOLE AMOUNT," when used with respect to any Security, means the
amount, if any, in addition to principal which is required by a Security, under
the terms and conditions specified therein or as otherwise specified as
contemplated by Section 301, to be paid by the Partnership to the Holder thereof
in connection with any optional redemption or accelerated payment of such
Security.
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"MATURITY," when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, notice of option to elect
repayment or otherwise.
"OFFICERS' CERTIFICATE" means a certificate signed by the Chairman of
the Board of Directors, the President or a Vice President and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company,
as general partner of the Partnership, and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be
counsel for the Partnership or who may be an employee of or other counsel for
the Partnership and who shall be satisfactory to the Trustee.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"OUTSTANDING," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption (including repayment at the option of the Holder) money in
the necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Partnership) in trust or set aside and
segregated in trust by the Partnership (if the Partnership shall act as
its own Paying Agent) for the Holders of such Securities and any
coupons appertaining thereto; PROVIDED, HOWEVER, that, if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made;
(iii) Securities, except to the extent provided in Sections
1402 and 1403, with respect to which the Partnership has effected
defeasance and/or covenant defeasance as provided in Article Fourteen;
and
(iv) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
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bona fide purchaser in whose hands such Securities are valid
obligations of the Partnership;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined pursuant to Section 301 as of the date such
Security is originally issued by the Partnership, of the principal amount (or,
in the case of an Original Issue Discount Security, the Dollar equivalent as of
such date of original issuance of the amount determined as provided in clause
(i) above) of such Security, (iii) the principal amount of any Indexed Security
that may be counted in making such determination or calculation and that shall
be deemed outstanding for such purpose shall be equal to the principal face
amount of such Indexed Security at original issuance, unless otherwise provided
with respect to such Security pursuant to Section 301, and (iv) Securities owned
by the Partnership or any other obligor upon the Securities or any Affiliate of
the Partnership or of such other obligor shall be disregarded and deemed not to
be Outstanding, except that, in determining whether the Trustee shall be
protected in making such calculation or in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Securities
which the Trustee knows to be so owned shall be so disregarded. Securities owned
as provided in clause (iv) above which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Partnership or any other obligor upon the Securities or
any Affiliate of the Partnership or of such other obligor. In case of a dispute
as to such right, the advice of counsel shall be full protection in respect of
any decision made by the Trustee in accordance with such advice.
"PARTNERSHIP" means the Person named as the "Partnership" in the first
paragraph of this Indenture until a successor limited partnership or corporation
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Partnership" shall mean such successor limited partnership or
corporation.
"PARTNERSHIP REQUEST" and "PARTNERSHIP ORDER" mean, respectively, a
written request or order signed in the name of the Partnership, by the Chairman
of the Board, President or a Vice President, Treasurer or an Assistant
Treasurer, and Secretary or an Assistant Secretary of the Company, as general
partner of the Partnership, and delivered to the Trustee.
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"PAYING AGENT" means any Person authorized by the Partnership to pay
the principal of (and premium or Make-Whole Amount, if any) or interest on any
Securities or coupons on behalf of the Partnership.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"PLACE OF PAYMENT," when used with respect to the Securities of or
within any series, means the place or places where the principal of (and premium
or Make-Whole Amount, if any) and interest on such Securities are payable as
specified as contemplated by Sections 301 and 1002.
"PREDECESSOR SECURITY" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains.
"PREFERRED STOCK" means, with respect to any Person, all capital stock
issued by such Person that are entitled to a preference or priority over any
other capital stock issued by such Person with respect to any distribution of
such Person's assets, whether by dividend or upon any voluntary or involuntary
liquidation, dissolution or winding up.
"REDEMPTION DATE," when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"REDEMPTION PRICE," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"REGISTERED SECURITY" shall mean any Security which is registered in
the Security Register.
"REGULAR RECORD DATE" for the interest payable on any Interest Payment
Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301, whether or not a
Business Day.
"REPAYMENT DATE" means, when used with respect to any Security to be
repaid at the option of the Holder, the date fixed for such repayment by or
pursuant to this Indenture.
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"REPAYMENT PRICE" means, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be repaid by or
pursuant to this Indenture.
"RESPONSIBLE OFFICER," when used with respect to the Trustee, means the
chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president (whether or not designated by a number or a word
or words added before or after the title "vice president"), the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of such officer's knowledge and familiarity with the
particular subject.
"SECURITY" has the meaning stated in the first recital of this
Indenture and, more particularly, means any Security or Securities authenticated
and delivered under this Indenture; PROVIDED, HOWEVER, that, if at any time
there is more than one Person acting as Trustee under this Indenture,
"Securities" with respect to the Indenture as to which such Person is Trustee
shall have the meaning stated in the first recital of this Indenture and shall
more particularly mean Securities authenticated and delivered under this
Indenture, exclusive, however, of Securities of any series as to which such
Person is not Trustee.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective
meanings specified in Section 305.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary which is a "significant
subsidiary" (as defined in Article I, Rule 1-02 of Regulation S-X, promulgated
under the Securities Act of 1933) of the Partnership.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest on the
Registered Securities of or within any series means a date fixed by the
Partnership pursuant to Section 307.
"STATED MATURITY," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"SUBSIDIARY" means, with respect to any person, any corporation or
other entity of which a majority of (i) the voting power of the voting equity
securities or (ii) the outstanding equity interest of which are owned, directly
or indirectly by such Person. For the purposes of this definition, "voting
equity securities" means equity securities having voting power for the
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election of directors, whether at all times or only so long as no senior class
of security has such voting power by reason of any contingency.
"TRUST INDENTURE ACT" or "TIA" means the Trust Indenture Act of 1939,
as amended and as in force at the date as of which this Indenture was executed,
except as provided in Section 905.
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder;
PROVIDED, HOWEVER, that if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
"UNITED STATES" means, unless otherwise specified with respect to any
Securities pursuant to Section 301, the United States of America (including the
states and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"UNITED STATES PERSON" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, an individual who is a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or an estate or
trust the income of which is subject to United States Federal income taxation
regardless of its source.
"YIELD TO MATURITY" means the yield to maturity, computed at the time
of issuance of a Security (or, if applicable, at the most recent redetermination
of interest on such Security) and as set forth in such Security in accordance
with generally accepted United States bond yield computation principles.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS. Upon any application
or request by the Partnership to the Trustee to take any action under any
provision of this Indenture, the Partnership shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (including certificates
delivered pursuant to Section 1008) shall include:
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(1) a statement that each individual signing such certificate
or opinion has read such condition or covenant and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such condition
or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company, as general
partner of the Partnership, may be based, insofar as it relates to legal
matters, upon an Opinion of Counsel, or a certificate or representations by
counsel, unless such officer knows, or in the exercise of reasonable care should
know, that the opinion, certificate or representations with respect to the
matters upon which his certificate or opinion is based are erroneous. Any such
Opinion of Counsel or certificate or representations may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or representations
by, an officer or officers of the Company, as general partner of the
Partnership, stating that the information as to such factual matters is in the
possession of the Company, as general partner of the Partnership, unless such
counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders of the Outstanding Securities of all series or one
or more series, as the case may be, may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Holders in person
or by agents duly appointed in writing. If Securities of a
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series are issuable as Bearer Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders of Securities of such series may, alternatively, be
embodied in and evidenced by the record of Holders of Securities of such series
voting in favor thereof, either in person or by proxies duly appointed in
writing, at any meeting of Holders of Securities of such series duly called and
held in accordance with the provisions of Article Fifteen, or a combination of
such instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or record or both are delivered to the Trustee and, where it is hereby expressly
required, to the Partnership. Such instrument or instruments and any such record
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments
or so voting at any such meeting. Proof of execution of any such instrument or
of a writing appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and conclusive
in favor of the Trustee and the Partnership and any agent of the Trustee or the
Partnership, if made in the manner provided in this Section. The record of any
meeting of Holders of Securities shall be proved in the manner provided in
Section 1506.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other reasonable manner which the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be proved by
the Security Register. As to any matter relating to beneficial ownership
interests in any Global Security, the appropriate depositary's records shall be
dispositive for purposes of this Indenture.
(d) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be satisfactory,
showing that at the date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities therein described; or such
facts may be proved by the certificate or affidavit of the Person holding such
Bearer Securities, if such certificate or affidavit is deemed by the Trustee to
be satisfactory. The Trustee and the Partnership may assume that such ownership
of any Bearer Security continues until (1) another certificate or affidavit
bearing a later date issued in respect of the same Bearer Security is produced,
or (2) such Bearer Security is produced to the Trustee by some other Person, or
(3) such Bearer Security is surrendered in exchange for a Registered Security,
or (4) such
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Bearer Security is no longer Outstanding. The ownership of Bearer Securities may
also be proved in any other manner which the Trustee deems sufficient.
(e) If the Partnership shall solicit from the Holders of
Registered Securities any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Partnership may, at its option, in or pursuant
to a Board Resolution, fix in advance a record date for the determination of
Holders entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Partnership shall have no obligation to do
so. Notwithstanding TIA Section 316(c), such record date shall be the record
date specified in or pursuant to such Board Resolution, which shall be a date
not earlier than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such solicitation
is completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of such record date;
PROVIDED that no such authorization, agreement or consent by the Holders on such
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than eleven months after the
record date.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee, any
Security Registrar, any Paying Agent, any Authenticating Agent or the
Partnership in reliance thereon, whether or not notation of such action is made
upon such Security.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND PARTNERSHIP. Any request,
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(1) the Trustee by any Holder or by the Partnership
shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at 230 South Tryon
Street, Charlotte, North Carolina 28288-1179; or
(2) the Partnership by the Trustee or by any Holder
shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed, first class
postage prepaid, to the Partnership, c/o the Company, addressed to it
at the address of its principal office specified in the first paragraph
of
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this Indenture or at any other address previously furnished in writing
to the Trustee by the Partnership, Attention: Chief Financial Officer
(with a copy to the Partnership's general counsel), or
(3) either the Trustee or the Partnership, by the
other party, shall be sufficient for every purpose hereunder if given
by facsimile transmission, receipt confirmed by telephone followed by
an original copy delivered by guaranteed overnight courier; if to the
Trustee at facsimile number (704) 383-7316; and if to the Partnership
at facsimile number (704) 334-4496.
SECTION 106. NOTICE TO HOLDERS: WAIVER. Where this Indenture provides
for notice of any event to Holders of Registered Securities by the Partnership
or the Trustee, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each such Holder affected by such event, at his address as it appears in the
Security Register, not later than the latest date, if any, and not earlier than
the earliest date, if any, prescribed for the giving of such notice. In any case
where notice to Holders of Registered Securities is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders of Registered Securities or the sufficiency of any notice to
Holders of Bearer Securities given as provided herein. Any notice mailed to a
Holder in the manner herein prescribed shall be conclusively deemed to have been
received by such Holder, whether or not such Holder actually receives such
notice.
If by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause it shall be impracticable to give such
notice by mail, then such notification to Holders of Registered Securities as
shall be made with the approval of the Trustee shall constitute a sufficient
notification to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified
with respect to any Securities pursuant to Section 301, where this Indenture
provides for notice to Holders of Bearer Securities of any event, such notice
shall be sufficiently given if published in an Authorized Newspaper in The City
of New York and in such other city or cities as may be specified in such
Securities on a Business Day, such publication to be not later than the latest
date, if any, and not earlier than the earliest date, if any, prescribed for the
giving of such notice. Any such notice shall be deemed to have been given on the
date of such publication or, if published more than once, on the date of the
first such publication.
If by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to any particular Holder of Bearer Securities as provided above, nor
any defect in
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any notice so published, shall affect the sufficiency of such notice with
respect to other Holders of Bearer Securities or the sufficiency of any notice
to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. COUNTERPARTS; EFFECT OF HEADINGS AND TABLE OF CONTENTS.
This Indenture may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same Indenture. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
SECTION 108. SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Indenture by the Partnership shall bind its successors and assigns, whether
so expressed or not.
SECTION 109. SEVERABILITY CLAUSE. In case any provision in this
Indenture or in any Security or coupon shall 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 110. BENEFITS OF INDENTURE. Nothing in this Indenture or in the
Securities or coupons, express or implied, shall give to any Person, other than
the parties hereto, any Security Registrar, any Paying Agent, any Authenticating
Agent and their successors hereunder and the Holders any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 111. GOVERNING LAW. This Indenture and the Securities and
coupons shall be governed by and construed in accordance with the law of the
[State of New York]. This Indenture is subject to the provisions of the TIA that
are required to be part of this Indenture and shall, to the extent applicable,
be governed by such provisions.
SECTION 112. LEGAL HOLIDAYS. In any case where any Interest Payment
Date, Redemption Date, Repayment Date, sinking fund payment date, Stated
Maturity or Maturity of any Security or the last date on which a Holder has the
right to exchange a Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or any
Security or coupon other than a provision in the Securities of any series which
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specifically states that such provision shall apply in lieu hereof), payment of
interest or any Additional Amounts or principal (and premium or Make-Whole
Amount, if any) or exchange of such security need not be made at such Place of
Payment on such date, but (except as otherwise provided in the supplemental
indenture with respect to such Security) may be made on the next succeeding
Business Day at such Place of Payment with the same force and effect as if made
on the Interest Payment Date, Redemption Date, Repayment Date or sinking fund
payment date, or at the Stated Maturity or Maturity, or on such last day for
exchange, provided that no interest shall accrue on the amount so payable for
the period from and after such Interest Payment Date, Redemption Date, Repayment
Date, sinking fund payment date, Stated Maturity or Maturity, as the case may
be.
SECTION 113. NON-RECOURSE. Notwithstanding anything contained herein to
the contrary, no recourse under or upon any obligation, covenant or agreement
contained in this Indenture, in any Security or coupon appertaining thereto, or
because of any indebtedness evidenced thereby (including, without limitation,
any obligation or indebtedness relating to the principal of, or premium or
Make-Whole Amount or Additional Amounts, if any, interest or any other amounts
due, or claimed to be due, on any Security issued hereunder), or for any claim
based thereon or otherwise in respect thereof, shall be had (i) against the
Company or any other past, present or future partner in the Partnership, (ii)
against any other Person which owns an interest, directly or indirectly, in any
partner of the Partnership or (iii) against any past, present or future
stockholder, employee, officer or director, as such, of the Company or of any
successor, either directly or through the Partnership or the Company or any
successor, under any rule of law, statute or constitutional provision or by the
enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Securities by the Holders and as part of the consideration for
the issue of the Securities.
SECTION 114. CONFLICT WITH TRUST INDENTURE ACT. If any provision hereof
limits, qualifies or conflicts with another provision hereof which is required
or deemed to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such required provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act that may
be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or to be excluded, as the case may be.
ARTICLE TWO - SECURITIES FORMS
SECTION 201. FORMS OF SECURITIES. The Registered Securities, if any, of
each series and the Bearer Securities, if any, of each series and related
coupons shall be substantially in the form of EXHIBIT A hereto or in such other
form as shall be established in one or more indentures supplemental hereto or
approved from time to time by or pursuant to a Board Resolution in accordance
with Section 301, shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture or any
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indenture supplemental hereto, and may have such letters, numbers or other marks
of identification or designation and such legends or endorsements placed thereon
as the Partnership may deem appropriate and as are not inconsistent with the
provisions of this Indenture, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or regulation
of any stock exchange on which the Securities may be listed, or to conform to
usage.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed or
engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or mechanically reproduced on safety paper or
may be produced in any other manner, all as determined by the officers executing
such Securities or coupons, as evidenced by their execution of such Securities
or coupons.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. Subject
to Section 611, the Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
FIRST UNION NATIONAL BANK
as Trustee
By_________________________________
Authorized Signatory
SECTION 203. SECURITIES ISSUABLE IN GLOBAL FORM. If Securities of or
within a series are issuable in the form of one or more Global Securities, then,
notwithstanding clause (8) of Section 301 and the provisions of Section 302, any
such Global Security or Securities may provide that it or they shall represent
the aggregate amount of all Outstanding Securities of such series (or such
lesser amount as is permitted by the terms thereof) from time to time endorsed
thereon and may also provide that the aggregate amount of Outstanding Securities
of such series represented thereby may from time to time be increased or
decreased to reflect exchanges. Any endorsement of any Global Security to
reflect the amount, or any increase or decrease in the amount, or changes in the
rights of Holders thereof, of Outstanding Securities represented thereby shall
be made by the Trustee in such manner or by such Person or Persons as shall be
specified therein or in the Partnership Order to be delivered to the Trustee
pursuant to Section 303 or 304. Subject to the provisions of Section 303 and, if
applicable, Section 304, the Trustee shall deliver and redeliver any Global
Security in permanent global form in the
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manner and upon instructions given by the Person or Persons specified therein or
in the applicable Partnership Order. If a Partnership Order pursuant to Section
303 or 304 has been, or simultaneously is, delivered, any instructions by the
Partnership with respect to endorsement or delivery or redelivery of a Global
Security shall be in writing but need not comply with Section 102 and need not
be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Global Security if such Security was never issued and
sold by the Partnership and the Partnership delivers to the Trustee the Global
Security together with written instructions (which need not comply with Section
102 and need not be accompanied by an Opinion of Counsel) with regard to the
reduction in the principal amount of Securities represented thereby, together
with the written statement contemplated by the last sentence of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of and any
premium or Make-Whole Amount and interest on any Global Security in permanent
global form shall be made to the registered Holder thereof.
Notwithstanding the provisions of Section 308 and except as provided in
the preceding paragraph, the Partnership, the Trustee and any agent of the
Partnership and the Trustee shall treat as the Holder of such principal amount
of Outstanding Securities represented by a permanent Global Security (i) in the
case of a permanent Global Security in registered form, the Holder of such
permanent Global Security in registered form, or (ii) in the case of a permanent
Global Security in bearer form, Euroclear or CEDEL.
Any Global Security authenticated and delivered hereunder shall bear a
legend in substantially the following form:
"This Security is a Global Security within the meaning set
forth in the Indenture hereinafter referred to and is
registered in the name of a Depositary or a nominee of a
Depositary. This Security is exchangeable for Securities
registered in the name of a person other than the Depositary
or its nominee only in the limited circumstances described in
the Indenture, and may not be transferred except as a whole by
the Depositary to a nominee of the Depositary or by a nominee
of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or its nominee to a successor
Depositary or its nominee."
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ARTICLE THREE - THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted by
one or more Board Resolutions and, subject to Section 303, set forth in an
Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series:
(1) the title of the Securities of the series (which shall
distinguish the Securities of such series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906, 1107
or 1305);
(3) the date or dates, or the method by which such date or
dates will be determined, on which the principal of the Securities of
the series shall be payable;
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method by which such rate or rates
shall be determined, the date or dates from which such interest shall
accrue or the method by which such date or dates shall be determined,
the Interest Payment Dates on which such interest will be payable and
the Regular Record Date, if any, for the interest payable on any
Registered Security on any Interest Payment Date, or the method by
which such date shall be determined, and the basis upon which interest
shall be calculated if other than that of a 360-day year of twelve
30-day months;
(5) the place or places where the principal of (and premium
or Make-Whole Amount, if any), interest, if any, on, and Additional
Amounts, if any, payable in respect of, Securities of the series shall
be payable, any Registered Securities of the series may be surrendered
for registration of transfer or exchange and notices or demands to or
upon the Partnership in respect of the Securities of the series and
this Indenture may be served;
(6) the period or periods within which, the price or prices
at which, the currency or currencies, currency unit or units or
composite currency or currencies in which, and other terms and
conditions upon which Securities of the series may be
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redeemed, in whole or in part, at the option of the Partnership, if the
Partnership is to have the option;
(7) the obligation, if any, of the Partnership to redeem,
repay or purchase Securities of the series pursuant to any sinking fund
or analogous provision or at the option of a Holder thereof, and the
period or periods within which or the date or dates on which, the price
or prices at which, the currency or currencies, currency unit or units
or composite currency or currencies in which, and other terms and
conditions upon which Securities of the series shall be redeemed,
repaid or purchased, in whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which any Securities of the
series shall be issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series that shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502 or the method by which such portion shall be
determined;
(11) if other than Dollars, the Foreign Currency or
Currencies in which payment of the principal of (and premium or
Make-Whole Amount, if any) and interest or Additional Amounts, if any,
on the Securities of the series shall be payable or in which the
Securities of the series shall be denominated and the manner of
determining the equivalent thereof in Dollars for purposes of the
definition of "Outstanding" in Section 101;
(12) whether the amount of payments of principal of (and
premium or Make-Whole Amount, if any) or interest, if any, on the
Securities of the series may be determined with reference to an index,
formula or other method (which index, formula or method may be based,
without limitation, on one or more currencies, currency units,
composite currencies, commodities, equity indices or other indices),
and the manner in which such amounts shall be determined;
(13) whether the principal of (and premium or Make-Whole
Amount, if any) or interest or Additional Amounts, if any, on the
Securities of the series are to be payable, at the election of the
Partnership or a Holder thereof, in a currency or currencies, currency
unit or units or composite currency or currencies other than that in
which such Securities are denominated or stated to be payable, the
period or periods within which, and the terms and conditions upon
which, such election may be made, and the time and manner of, and
identity of the exchange rate agent with responsibility
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for, determining the exchange rate between the currency or currencies,
currency unit or units or composite currency or currencies in which
such Securities are denominated or stated to be payable and the
currency or currencies, currency unit or units or composite currency or
currencies in which such Securities are to be so payable;
(14) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such events
as may be specified;
(15) any deletions from, modifications of or additions to the
Events of Default or covenants of the Partnership with respect to
Securities of the series, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants set
forth herein;
(16) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or
both, any restrictions applicable to the offer, sale or delivery of
Bearer Securities and the terms upon which Bearer Securities of the
series may be exchanged for Registered Securities of the series and
vice versa (if permitted by applicable laws and regulations), whether
any Securities of the series are to be issuable initially in temporary
global form and whether any Securities of the series are to be issuable
in permanent global form with or without coupons and, if so, whether
beneficial owners of interests in any such permanent global Security
may exchange such interests for Securities of such series and of like
tenor of any authorized form and denomination and the circumstances
under which any such exchanges may occur, if other than in the manner
provided in Section 305, and, if Registered Securities of the series
are to be issuable as a Global Security, the identity of the depositary
for such series;
(17) the date as of which any Bearer Securities of the series
and any temporary Global Security representing Outstanding Securities
of the series shall be dated if other than the date of original
issuance of the first Security of the series to be issued;
(18) the Person to whom any interest on any Registered
Security of the series shall be payable, if other than the Person in
whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, the manner in which, or the Person to whom, any interest on
any Bearer Security of the series shall be payable, if otherwise than
upon presentation and surrender of the coupons appertaining thereto as
they severally mature, and the extent to which, or the manner in which,
any interest payable on a temporary Global Security on an Interest
Payment Date will be paid if other than in the manner provided in
Section 304;
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(19) the applicability, if any, of Sections 1402 and/or 1403
to the Securities of the series and any provisions in modification of,
in addition to or in lieu of any of the provisions of Article Fourteen;
(20) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
then the form and/or terms of such certificates, documents or
conditions;
(21) if the Securities of the series are to be issued upon
the exercise of warrants, the time, manner and place for such
Securities to be authenticated and delivered;
(22) whether and under what circumstances the Partnership
will pay Additional Amounts as contemplated by Section 1009 on the
Securities of the series to any Holder who is not a United States
person (including any modification to the definition of such term) in
respect of any tax, assessment or governmental charge and, if so,
whether the Partnership will have the option to redeem such Securities
rather than pay such Additional Amounts (and the terms of any such
option); and
(23) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except, in the
case of Registered Securities, as to denomination and except as may otherwise be
provided in or pursuant to such Board Resolution (subject to Section 303) and
set forth in such Officers' Certificate or in any such indenture supplemental
hereto. All Securities of any one series need not be issued at the same time
and, unless otherwise provided, a series may be reopened, without the consent of
the Holders, for issuances of additional Securities of such series.
If any of the terms of the Securities of any series are established by
action taken pursuant to one or more Board Resolutions, a copy of an appropriate
record of such action(s) shall be certified by the Secretary or an Assistant
Secretary of the Company, as general partner of the Partnership, and delivered
to the Trustee at or prior to the delivery of the Officers' Certificate setting
forth the terms of the Securities of such series.
SECTION 302. DENOMINATIONS. The Securities of each series shall be
issuable in such denominations as shall be specified as contemplated by Section
301. With respect to Securities of any series denominated in Dollars, in the
absence of any such provisions with respect to the Securities of any series, the
Securities of such series, other than Global Securities (which may be of any
denomination), shall be issuable in denominations of $1,000 and any integral
multiple thereof.
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SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING. The
Securities and any coupons appertaining thereto shall be executed on behalf of
the Partnership by the Chairman of the Board, the President or one of the Vice
Presidents of the Company, as general partner of the Partnership, under its
corporate seal reproduced thereon, and attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
and coupons may be manual or facsimile signatures of the present or any future
such authorized officer and may be imprinted or otherwise reproduced on the
Securities.
Securities or coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company, as general
partner of the Partnership, shall bind the Partnership, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such offices at
the date of such Securities or coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Partnership may deliver Securities of any series, together
with any coupon appertaining thereto, executed by the Partnership to the Trustee
for authentication, together with a Partnership Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Partnership
Order shall authenticate and deliver such Securities; PROVIDED, HOWEVER, that,
in connection with its original issuance, no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and PROVIDED FURTHER
that, unless otherwise specified with respect to any series of Securities
pursuant to Section 301, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate to Euroclear or CEDEL, as the case
may be, in the form set forth in Exhibit B-1 to this Indenture or such other
certificate as may be specified with respect to any series of Securities
pursuant to Section 301, dated no earlier than 15 days prior to the earlier of
the date on which such Bearer Security is delivered and the date on which any
temporary Security first becomes exchangeable for such Bearer Security in
accordance with the terms of such temporary Security and this Indenture. If any
Security shall be represented by a permanent global Bearer Security, then, for
purposes of this Section and Section 304, the notation of a beneficial owner's
interest therein upon original issuance of such Security or upon exchange of a
portion of a temporary Global Security shall be deemed to be delivery in
connection with its original issuance of such beneficial owner's interest in
such permanent Global Security. Except as permitted by Section 306, the Trustee
shall not authenticate and deliver any Bearer Security unless all appurtenant
coupons for interest then matured have been detached and canceled.
If all the Securities of any series are not to be issued at one time
and if the Board Resolution or supplemental indenture establishing such series
shall so permit, such Partnership Order may set forth procedures acceptable to
the Trustee for the issuance of such Securities and determining the terms of
particular Securities of such series, such as interest rate or formula, maturity
date, date of issuance and date from which interest shall accrue. In
authenticating such Securities, and accepting the additional responsibilities
under this Indenture
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in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to TIA Section 315(a) through 315(d)) shall be fully protected in
relying upon,
(i) an Opinion of Counsel stating that
(a) the form or forms of such Securities and any
coupons have been established in conformity with the
provisions of this Indenture;
(b) the terms of such Securities and any coupons have
been established in conformity with the provisions of this
Indenture; and
(c) such Securities, together with any coupons
appertaining thereto, when completed by appropriate insertions
and executed and delivered by the Partnership to the Trustee
for authentication in accordance with this Indenture,
authenticated and delivered by the Trustee in accordance with
this Indenture and issued by the Partnership in the manner and
subject to any conditions specified in such Opinion of
Counsel, will constitute legal, valid and legally binding
obligations of the Partnership, enforceable in accordance with
their terms, subject to applicable bankruptcy, insolvency,
fraudulent transfer, reorganization and other similar laws of
general applicability relating to or affecting the enforcement
of creditors' rights generally and to general equitable
principles; and
(ii) an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the issuance of
the Securities have been complied with and that, to the best of the
knowledge of the signers of such certificate, that no Event of Default
with respect to any of the Securities shall have occurred and be
continuing.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties,
obligations or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all the Securities of any series are not to be issued at one time,
it shall not be necessary to deliver an Officers' Certificate otherwise required
pursuant to Section 301 or a Partnership Order, or an Opinion of Counsel or an
Officers' Certificate otherwise required pursuant to the preceding paragraph at
the time of issuance of each Security of such series, but such order, opinion
and certificates, with appropriate modifications to cover such future issuances,
shall be delivered at or before the time of issuance of the first Security of
such series.
Each Registered Security shall be dated the date of its authentication
and each Bearer Security shall be dated as of the date specified as contemplated
by Section 301.
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No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security or Security to which such coupon appertains a certificate of
authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of an authorized signatory, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture. Notwithstanding the foregoing, if any Security
(including a Global Security) shall have been authenticated and delivered
hereunder but never issued and sold by the Partnership, and the Partnership
shall deliver such Security to the Trustee for cancellation as provided in
Section 309 together with a written statement (which need not comply with
Section 102 and need not be accompanied by an Opinion of Counsel) stating that
such Security has never been issued and sold by the Partnership, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 304. TEMPORARY SECURITIES. Pending the preparation of
definitive Securities of any series, the Partnership may execute, and upon
Partnership Order the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Securities in lieu of which they are issued, in registered
form, or, if authorized, in bearer form with one or more coupons or without
coupons, and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities. In the case of
Securities of any series, such temporary Securities may be in global form.
Except in the case of temporary Global Securities (which shall be
exchanged as otherwise provided herein or as otherwise provided in or pursuant
to a Board Resolution), if temporary Securities of any series are issued, the
Partnership will cause definitive Securities of that series to be prepared
without unreasonable delay. After the preparation of definitive Securities of
such series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities
of such series at the office or agency of the Partnership in a Place of Payment
for that series, without charge to the Holder. Upon surrender for cancellation
of any one or more temporary Securities of any series (accompanied by any
non-matured coupons appertaining thereto), the Partnership shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of the same series of authorized denominations;
provided, however, that no definitive Bearer Security shall be delivered in
exchange for a temporary Registered Security; and PROVIDED FURTHER that a
definitive Bearer Security shall be delivered in exchange for a temporary Bearer
Security only in compliance with the conditions set forth in Section 303. Until
so exchanged, the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series.
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Unless otherwise provided in or pursuant to a Board
Resolution, the following provisions of this Section 304 shall govern the
exchange of temporary Securities other than through the facilities of The
Depository Trust Company. If any such temporary Security is issued in global
form, then such temporary Global Security shall, unless otherwise provided
therein, be delivered to the London office of a depositary or common depositary
(the "Common Depositary"), for the benefit of Euroclear and CEDEL, for credit to
the respective accounts of the beneficial owners of such Securities (or to such
other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary Global
Security (the "Exchange Date"), the Partnership shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary Global Security, executed by the Partnership. On or
after the Exchange Date, such temporary Global Security shall be surrendered by
the Common Depositary to the Trustee, as the Partnership's agent for such
purpose, to be exchanged, in whole or from time to time in part, for definitive
Securities without charge, and the Trustee shall authenticate and deliver, in
exchange for each portion of such temporary Global Security, an equal aggregate
principal amount of definitive Securities of the same series of authorized
denominations and of like tenor as the portion of such temporary Global Security
to be exchanged. The definitive Securities to be delivered in exchange for any
such temporary Global Security shall be in bearer form, registered form,
permanent global bearer form or permanent global registered form, or any
combination thereof, as specified as contemplated by Section 301, and, if any
combination thereof is so specified, as requested by the beneficial owner
thereof; PROVIDED, HOWEVER, that, unless otherwise specified in such temporary
Global Security, upon such presentation by the Common Depositary, such temporary
Global Security is accompanied by a certificate dated the Exchange Date or a
subsequent date and signed by Euroclear as to the portion of such temporary
Global Security held for its account then to be exchanged and a certificate
dated the Exchange Date or a subsequent date and signed by CEDEL as to the
portion of such temporary Global Security held for its account then to be
exchanged, each in the form set forth in Exhibit A-2 to this Indenture or in
such other form as may be established pursuant to Section 301; and PROVIDED
FURTHER that definitive Bearer Securities shall be delivered in exchange for a
portion of a temporary Global Security only in compliance with the requirements
of Section 303.
Unless otherwise specified in such temporary Global Security, the
interest of a beneficial owner of Securities of a series in a temporary Global
Security shall be exchanged for definitive Securities of the same series and of
like tenor following the Exchange Date when the account holder instructs
Euroclear or CEDEL, as the case may be, to request such exchange on his behalf
and delivers to Euroclear or CEDEL, as the case may be, a certificate in the
form set forth in Exhibit B-1 to this Indenture (or in such other form as may be
established pursuant to Section 301), dated no earlier than 15 days prior to the
Exchange Date, copies of which certificate shall be available from the offices
of Euroclear and CEDEL, the Trustee, any Authenticating Agent appointed for such
series of Securities and each Paying Agent. Unless
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otherwise specified in such temporary Global Security, any such exchange shall
be made free of charge to the beneficial owners of such temporary Global
Security, except that a Person receiving definitive Securities must bear the
cost of insurance, postage, transportation and the like unless such Person takes
delivery of such definitive Securities in person at the offices of Euroclear or
CEDEL. Definitive Securities in bearer form to be delivered in exchange for any
portion of a temporary Global Security shall be delivered only outside the
United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary Global
Security on an Interest Payment Date for Securities of such series occurring
prior to the applicable Exchange Date shall be payable to Euroclear and CEDEL on
such Interest Payment Date upon delivery by Euroclear and CEDEL to the Trustee
of a certificate or certificates in the form set forth in Exhibit B-2 to this
Indenture (or in such other forms as may be established pursuant to Section
301), for credit without further interest on or after such Interest Payment Date
to the respective accounts of Persons who are the beneficial owners of such
temporary Global Security on such Interest Payment Date and who have each
delivered to Euroclear or CEDEL, as the case may be, a certificate dated no
earlier than 15 days prior to the Interest Payment Date occurring prior to such
Exchange Date in the form set forth as Exhibit B-1 to this Indenture (or in such
other forms as may be established pursuant to Section 301). Notwithstanding
anything to the contrary herein contained, the certifications made pursuant to
this paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section 304(b) and of the third paragraph of Section 303 of
this Indenture and the interests of the Persons who are the beneficial owners of
the temporary Global Security with respect to which such certification was made
will be exchanged for definitive Securities of the same series and of like tenor
on the Exchange Date or the date of certification if such date occurs after the
Exchange Date, without further act or deed by such beneficial owners. Except as
otherwise provided in this paragraph, no payments of principal or interest owing
with respect to a beneficial interest in a temporary Global Security will be
made unless and until such interest in such temporary Global Security shall have
been exchanged for an interest in a definitive Security. Any interest so
received by Euroclear and CEDEL and not paid as herein provided shall be
returned to the Trustee prior to the expiration of two years after such Interest
Payment Date in order to be repaid to the Partnership.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE. The
Partnership shall cause to be kept at the Corporate Trust Office of the Trustee
or in any office or agency of the Partnership in a Place of Payment a register
for each series of Securities (the registers maintained in such office or in any
such office or agency of the Partnership in a Place of Payment being herein
sometimes referred to collectively as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Partnership shall
provide for the registration of Registered Securities and of transfers of
Registered Securities. The Security Register shall be in written form or any
other form capable of being converted into written
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form within a reasonable time. The Trustee, at its Corporate Trust Office, is
hereby initially appointed "Security Registrar" for the purpose of registering
Registered Securities and transfers of Registered Securities on such Security
Register as herein provided. In the event that the Trustee shall cease to be
Security Registrar, it shall have the right to examine the Security Register at
all reasonable times.
Subject to the provisions of this Section 305, upon surrender for
registration of transfer of any Registered Security of any series at any office
or agency of the Partnership in a Place of Payment for that series, the
Partnership shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Registered
Securities of the same series, of any authorized denominations and of a like
aggregate principal amount, bearing a number not contemporaneously outstanding,
and containing identical terms and provisions.
Subject to the provisions of this Section 305, at the option of the
Holder, Registered Securities of any series may be exchanged for other
Registered Securities of the same series, of any authorized denomination or
denominations and of a like aggregate principal amount, containing identical
terms and provisions, upon surrender of the Registered Securities to be
exchanged at any such office or agency. Whenever any such Registered Securities
are so surrendered for exchange, the Partnership shall execute, and the Trustee
shall authenticate and deliver, the Registered Securities which the Holder
making the exchange is entitled to receive. Unless otherwise specified with
respect to any series of Securities as contemplated by Section 301, Bearer
Securities may not be issued in exchange for Registered Securities.
If (but only if) permitted by the applicable Board Resolution and
(subject to Section 303) set forth in the applicable Officers' Certificate, or
in any indenture supplemental hereto, delivered as contemplated by Section 301,
at the option of the Holder, Bearer Securities of any series may be exchanged
for Registered Securities of the same series of any authorized denominations and
of a like aggregate principal amount and tenor, upon surrender of the Bearer
Securities to be exchanged at any such office or agency, with all unmatured
coupons and all matured coupons in default thereto appertaining. If the Holder
of a Bearer Security is unable to produce any such unmatured coupon or coupons
or matured coupon or coupons in default, any such permitted exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Partnership in an amount equal to the face amount of such missing coupon
or coupons, or the surrender of such missing coupon or coupons may be waived by
the Partnership and the Trustee if there is furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Security shall surrender to any
Paying Agent any such missing coupon in respect of which such a payment shall
have been made, such Holder shall be entitled to receive the amount of such
payment; PROVIDED, HOWEVER, that, except as otherwise provided in Section 1002,
interest represented by coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is
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surrendered at any such office or agency in a permitted exchange for a
Registered Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at such
office or agency on the related proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture. Whenever any Securities are so
surrendered for exchange, the Partnership shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent Global Security shall be exchangeable
only as provided in this paragraph. If the depositary for any permanent Global
Security is The Depository Trust Company ("DTC"), then, unless the terms of such
Global Security expressly permit such Global Security to be exchanged in whole
or in part for definitive Securities, a Global Security may be transferred, in
whole but not in part, only to a nominee of DTC, or by a nominee of DTC to DTC,
or to a successor to DTC for such Global Security selected or approved by the
Partnership or to a nominee of such successor to DTC. If at any time DTC
notifies the Partnership that it is unwilling or unable to continue as
depositary for the applicable Global Security or Securities or if at any time
DTC ceases to be a clearing agency registered under the Securities Exchange Act
of 1934 if so required by applicable law or regulation, the Partnership shall
appoint a successor depositary with respect to such Global Security or
Securities. If (x) a successor depositary for such Global Security or Securities
is not appointed by the Partnership within 90 days after the Partnership
receives such notice or becomes aware of such unwillingness, inability or
ineligibility, (y) an Event of Default has occurred and is continuing and the
beneficial owners representing a majority in principal amount of the applicable
series of Securities represented by such Global Security or Securities advise
DTC to cease acting as depositary for such Global Security or Securities or (z)
the Partnership, in its sole discretion, determines at any time that all
Outstanding Securities (but not less than all) of any series issued or issuable
in the form of one or more Global Securities shall no longer be represented by
such Global Security or Securities, then the Partnership shall execute, and the
Trustee shall authenticate and deliver definitive Securities of like series,
rank, tenor and terms in definitive form in an aggregate principal amount equal
to the principal amount of such Global Security or Securities. If any beneficial
owner of an interest in a permanent global Security is otherwise entitled to
exchange such interest for Securities of such series and of like tenor and
principal amount of another authorized form and denomination, as specified as
contemplated by Section 301 and provided that any applicable notice provided in
the permanent Global Security shall have been given, then without unnecessary
delay but in any event not later than the earliest date on which such interest
may be so exchanged, the Partnership shall execute, and the
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Trustee shall authenticate and deliver definitive Securities in aggregate
principal amount equal to the principal amount of such beneficial owner's
interest in such permanent Global Security. On or after the earliest date on
which such interests may be so exchanged, such permanent Global Security shall
be surrendered for exchange by DTC or such other depositary as shall be
specified in the Partnership Order with respect thereto to the Trustee, as the
Partnership's agent for such purpose; PROVIDED, HOWEVER, that no such exchanges
may occur during a period beginning at the opening of business 15 days before
any selection of Securities to be redeemed and ending on the relevant Redemption
Date if the Security for which exchange is requested may be among those selected
for redemption; and PROVIDED FURTHER that no Bearer Security delivered in
exchange for a portion of a permanent Global Security shall be mailed or
otherwise delivered to any location in the United States. If a Registered
Security is issued in exchange for any portion of a permanent Global Security
after the close of business at the office or agency where such exchange occurs
on (i) any Regular Record Date and before the opening of business at such office
or agency on the relevant Interest Payment Date, or (ii) any Special Record Date
and the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, interest or Defaulted Interest, as the
case may be, will not be payable on such Interest Payment Date or proposed date
for payment, as the case may be, in respect of such Registered Security, but
will be payable on such Interest Payment Date or proposed date for payment, as
the case may be, only to the Person to whom interest in respect of such portion
of such permanent Global Security is payable in accordance with the provisions
of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Partnership, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Partnership
or the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Partnership and the Security
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Partnership may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any
transfer.
The Partnership or the Trustee, as applicable, shall not be required
(i) to issue, register the transfer of or exchange any Security if such Security
may be among those selected for redemption during a period beginning at the
opening of business 15 days before selection of the Securities to be redeemed
under Section 1103 and ending at the close of business on (A) if such
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Securities are issuable only as Registered Securities, the day of the mailing of
the relevant notice of redemption and (B) if such Securities are issuable as
Bearer Securities, the day of the first publication of the relevant notice of
redemption or, if such Securities are also issuable as Registered Securities and
there is no publication, the mailing of the relevant notice of redemption, or
(ii) to register the transfer of or exchange any Registered Security so selected
for redemption in whole or in part, except, in the case of any Registered
Security to be redeemed in part, the portion thereof not to be redeemed, or
(iii) to exchange any Bearer Security so selected for redemption except that
such a Bearer Security may be exchanged for a Registered Security of that series
and like tenor, PROVIDED that such Registered Security shall be simultaneously
surrendered for redemption, or (iv) to issue, register the transfer of or
exchange any Security which has been surrendered for repayment at the option of
the Holder, except the portion, if any, of such Security not to be so repaid.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES. If any
mutilated Security or a Security with a mutilated coupon appertaining to it is
surrendered to the Trustee or the Partnership, together with, in proper cases,
such security or indemnity as may be required by the Partnership or the Trustee
to save each of them or any agent of either of them harmless, the Partnership
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and principal amount, containing
identical terms and provisions and bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupons, if any, appertaining to
the surrendered Security.
If there shall be delivered to the Partnership and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
or coupon, and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the absence
of notice to the Partnership or the Trustee that such Security or coupon has
been acquired by a bona fide purchaser, the Partnership shall execute and upon
its request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security or in exchange for the Security to which a
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not
destroyed, lost or stolen), a new Security of the same series and principal
amount, containing identical terms and provisions and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, in case
any such mutilated, destroyed, lost or stolen Security or coupon has become or
is about to become due and payable, the Partnership in its discretion may,
instead of issuing a new Security, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains, pay such Security or
coupon; PROVIDED, HOWEVER, that payment of principal of (and premium or
Make-Whole Amount, if any), any interest on and any Additional Amounts with
respect to, Bearer Securities shall, except as otherwise provided in Section
1002, be payable only at an
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office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 301, any interest on Bearer Securities
shall be payable only upon presentation and surrender of the coupons
appertaining thereto.
Upon the issuance of any new Security under this Section, the
Partnership may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security, or
in exchange for a Security to which a destroyed, lost or stolen coupon
appertains, shall constitute an original additional contractual obligation of
the Partnership, whether or not the destroyed, lost or stolen Security and its
coupons, if any, or the destroyed, lost or stolen coupon shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED. Except as
otherwise specified with respect to a series of Securities in accordance with
the provisions of Section 301, interest on any Registered Security that is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest at the office or agency of the Partnership
maintained for such purpose pursuant to Section 1002; PROVIDED, HOWEVER, that
each installment of interest on any Registered Security may at the Partnership's
option be paid by (i) mailing a check for such interest, payable to or upon the
written order of the Person entitled thereto pursuant to Section 308, to the
address of such Person as it appears on the Security Register or (ii) transfer
to an account maintained by the payee located inside the United States.
Unless otherwise provided as contemplated by Section 301 with respect
to the Securities of any series, payment of interest may be made, in the case of
a Bearer Security, by transfer to an account maintained by the payee with a bank
located outside the United States.
Unless otherwise provided as contemplated by Section 301, every
permanent global Security will provide that interest, if any, payable on any
Interest Payment Date will be paid to DTC, Euroclear and/or CEDEL, as the case
may be, with respect to that portion of such permanent global Security held for
its account by Cede & Co. or the Common Depositary, as the case may be, for the
purpose of permitting such party to credit the interest received by it in
respect of such permanent global Security to the accounts of the beneficial
owners thereof.
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In case a Bearer Security of any series is surrendered in exchange for
a Registered Security of such series after the close of business (at an office
or agency in a Place of Payment for such series) on any Regular Record Date and
before the opening of business (at such office or agency) on the next succeeding
Interest Payment Date, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date and interest will not be payable
on such Interest Payment Date in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder of
such coupon when due in accordance with the provisions of this Indenture.
Except as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 301, any interest on any Registered
Security of any series that is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called "Defaulted Interest")
shall forthwith cease to be payable to the registered Holder thereof on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Partnership, at its election in each case,
as provided in clause (1) or (2) below:
(1) The Partnership may elect to make payment of any
Defaulted Interest to the Persons in whose names the Registered
Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Partnership shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on each
Registered Security of such series and the date of the proposed payment
(which shall not be less than 20 days after such notice is received by
the Trustee), and at the same time the Partnership shall deposit with
the Trustee an amount of money in the currency or currencies, currency
unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series) equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit on or prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Partnership of
such Special Record Date and, in the name and at the expense of the
Partnership, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Registered Securities of
such series at his address as it appears in the Security Register not
less than 10 days prior to such Special Record Date. The Trustee may,
in its discretion, in the name and at the expense of the Partnership,
cause a similar notice to be published at least once in an Authorized
Newspaper in each Place of Payment, but
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such publications shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid
to the Persons in whose names the Registered Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on such Special Record Date and shall no longer be
payable pursuant to the following clause (2). In case a Bearer Security
of any series is surrendered at the office or agency in a Place of
Payment for such series in exchange for a Registered Security of such
series after the close of business at such office or agency on any
Special Record Date and before the opening of business at such office
or agency on the related proposed date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the coupon
relating to such proposed date of payment and Defaulted Interest will
not be payable on such proposed date of payment in respect of the
Registered Security issued in exchange for such Bearer Security, but
will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
(2) The Partnership may make payment of any Defaulted
Interest on the Registered Securities of any series in any other lawful
manner not inconsistent with the requirements of any securities
exchange on which such Securities may be listed, and upon such notice
as may be required by such exchange, if, after notice given by the
Partnership to the Trustee of the proposed payment pursuant to this
clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. PERSONS DEEMED OWNERS. Prior to due presentment of a
Registered Security for registration of transfer, the Partnership, the Trustee
and any agent of the Partnership or the Trustee may treat the Person in whose
name such Registered Security is registered as the owner of such Security for
the purpose of receiving payment of principal of (and premium or Make-Whole
Amount, if any), and (subject to Sections 305 and 307) interest on, such
Registered Security and for all other purposes whatsoever, whether or not such
Registered Security be overdue, and neither the Partnership, the Trustee nor any
agent of the Partnership or the Trustee shall be affected by notice to the
contrary. All such payments so made to any such Person, or upon such Person's
order, shall be valid, and, to the extent of the sum or sums so paid, effectual
to satisfy and discharge the liability for money payable upon any such Security.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Partnership, the Trustee and any agent of the Partnership
or the Trustee may treat the Holder of any Bearer Security and the Holder of any
coupon as the absolute owner of
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such Security or coupon for the purpose of receiving payment thereof or on
account thereof and for all other purposes whatsoever, whether or not such
Security or coupon be overdue, and neither the Partnership, the Trustee nor any
agent of the Partnership or the Trustee shall be affected by notice to the
contrary.
No Holder of any beneficial interest in any Global Security held on its
behalf by a depositary shall have any rights under this Indenture with respect
to such Global Security and such depositary shall be treated by the Partnership,
the Trustee, and any agent of the Partnership or the Trustee as the owner of
such Global Security for all purposes whatsoever. None of the Partnership, the
Trustee, any Paying Agent or the Security Registrar will have any responsibility
or liability for any aspect of the records relating to or payments made on
account of beneficial ownership interests of a Global Security or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
Notwithstanding the foregoing, with respect to any Global Security,
nothing herein shall prevent the Partnership, the Trustee, or any agent of the
Partnership or the Trustee, from giving effect to any written certification,
proxy or other authorization furnished by any depositary, as a Holder, with
respect to such Global Security or impair, as between such depositary and owners
of beneficial interests in such Global Security, the operation of customary
practices governing the exercise of the rights of such depositary (or its
nominee) as Holder of such Global Security.
SECTION 309. CANCELLATION. All Securities and coupons surrendered for
payment, redemption, repayment at the option of the Holder, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee,
and any such Securities and coupons and Securities and coupons surrendered
directly to the Trustee for any such purpose shall be promptly cancelled by it.
The Partnership may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the
Partnership may have acquired in any manner whatsoever, and may deliver to the
Trustee (or to any other Person for delivery to the Trustee) for cancellation
any Securities previously authenticated hereunder which the Partnership has not
issued and sold, and all Securities so delivered shall be promptly cancelled by
the Trustee. If the Partnership shall so acquire any of the Securities, however,
such acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. Cancelled
Securities and coupons held by the Trustee shall be destroyed by the Trustee and
the Trustee shall deliver a certificate of such destruction to the Partnership,
unless the Trustee is otherwise directed by a Partnership Order.
SECTION 310. COMPUTATION OF INTEREST. Except as otherwise specified as
contemplated by Section 301 with respect to Securities of any series, interest
on the Securities
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of each series shall be computed on the basis of a 360-day year consisting of
twelve 30-day months.
ARTICLE FOUR - SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE. This Indenture
shall upon Partnership Request cease to be of further effect with respect to any
series of Securities specified in such Partnership Request (except as to any
surviving rights of registration of transfer or exchange of Securities of such
series herein expressly provided for and any right to receive Additional
Amounts, as provided in Section 1009), and the Trustee, upon receipt of a
Partnership Order, and at the expense of the Partnership, shall execute
instruments in form and substance satisfactory to the Trustee and the
Partnership acknowledging satisfaction and discharge of this Indenture as to
such series when
(1) either
(A) all Securities of such series theretofore
authenticated and delivered and all coupons, if any,
appertaining thereto (other than (i) coupons appertaining to
Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose surrender
is not required or has been waived as provided in Section 305,
(ii) Securities and coupons of such series which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 306, (iii) coupons appertaining to
Securities called for redemption and maturing after the
relevant Redemption Date, whose surrender has been waived as
provided in Section 1106, and (iv) Securities and coupons of
such series for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the
Partnership and thereafter repaid to the Partnership or
discharged from such trust, as provided in Section 1003) have
been delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the case
of (i) or (ii) below, any coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) if redeemable at the option of the
Partnership, are to be called for redemption within
one year under arrangements satisfactory to
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the Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense, of the
Partnership,
and the Partnership, in the case of (i), (ii) or (iii) above,
has irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose an amount in
the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of
such series are payable, sufficient to pay and discharge the
entire indebtedness on such Securities and such coupons not
theretofore delivered to the Trustee for cancellation, for
principal (and premium or Make-Whole Amount, if any) and
interest, and any Additional Amounts with respect thereto, to
the date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Partnership has paid or caused to be paid
all other sums payable hereunder by the Partnership; and
(3) the Partnership has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture as to such series have been complied
with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Partnership to the Trustee and any predecessor Trustee under
Section 606, the obligations of the Partnership to any Authenticating Agent
under Section 611 and, if money shall have been deposited with and held by the
Trustee pursuant to subclause (B) of clause (1) of this Section, the obligations
of the Trustee under Section 402 and the last paragraph of Section 1003 shall
survive.
SECTION 402. APPLICATION OF TRUST FUNDS. Subject to the provisions of
the last paragraph of Section 1003, all money deposited with the Trustee
pursuant to Section 401 shall be held in trust and applied by it, in accordance
with the provisions of the Securities, the coupons and this Indenture, to the
payment, either directly or through any Paying Agent (including the Partnership
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium or Make-Whole Amount, if any),
and any interest and Additional Amounts for whose payment such money has been
deposited with or received by the Trustee, but such money need not be segregated
from other funds except to the extent required by law.
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ARTICLE FIVE - REMEDIES
SECTION 501. EVENTS OF DEFAULT. "Event of Default," wherever used
herein with respect to any particular series of Securities, means any one of the
following events (whatever the reason for such Event of Default and whether or
not it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in the payment of any interest upon or
any Additional Amounts payable in respect of any Security of that
series or of any coupon appertaining thereto, when such interest,
Additional Amounts or coupon becomes due and payable, and continuance
of such default for a period of 30 days; or
(2) default in the payment of the principal of (or
premium or Make-Whole Amount, if any, on) any Security of that series
when it becomes due and payable at its Maturity; or
(3) default in the deposit of any sinking fund
payment, when and as due by the terms of any Security of that
series; or
(4) default in the performance, or breach, of any
covenant or warranty of the Partnership in this Indenture with respect
to any Security of that series (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this
Section specifically dealt with), and continuance of such default or
breach for a period of 60 days after there has been given, by
registered or certified mail, to the Partnership by the Trustee or to
the Partnership and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of that series a written
notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(5) default under any bond, debenture, note or
other evidence of indebtedness for money borrowed (except mortgage
indebtedness) by the Partnership or any of its Subsidiaries in an
aggregate principal amount in excess of $25,000,000 or under any
indenture or instrument under which there may be issued or by which
there may be secured or evidenced any indebtedness for money borrowed
(except mortgage indebtedness) by the Partnership or any of its
Subsidiaries in an aggregate principal amount in excess of $25,000,000,
whether such indebtedness exists on the date of such Indenture or shall
thereafter be created, which default shall have resulted in such
indebtedness becoming or being declared due and payable prior to the
date on which it would otherwise have become due and payable or such
obligations being accelerated, without such acceleration having been
rescinded or annulled; or
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(6) the Partnership or any Significant Subsidiary
pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for
relief against it in an involuntary case,
(C) consents to the appointment of a
Custodian of it or for all or substantially all of its property,
or
(D) makes a general assignment for the
benefit of its creditors; or
(7) a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that:
(A) is for relief against the Partnership
or any Significant Subsidiary in an involuntary case,
(B) appoints a Custodian of the Partnership
or any Significant Subsidiary or for all or substantially all of
either of its property, or
(C) orders the liquidation of the
Partnership or any Significant Subsidiary, and the order or
decree remains unstayed and in effect for 90 days; or
(8) any other Event of Default provided with
respect to Securities of that series.
As used in this Section 501, the term "Bankruptcy Law" means title 11, U.S. Code
or any similar Federal or state law for the relief of debtors and the term
"Custodian" means any receiver, trustee, assignee, liquidator or other similar
official under any Bankruptcy Law.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. If an
Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if Securities of
that Series are Original Issue Discount Securities or Indexed Securities, such
portion of the principal as may be specified in the terms thereof) of all the
Securities of that series to be due and payable immediately, by a notice in
writing to the Partnership (and to the Trustee if given by the Holders), and
upon any such declaration such principal or specified portion thereof shall
become immediately due and payable.
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At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Partnership and
the Trustee, may rescind and annul such declaration of acceleration and its
consequences if:
(1) the Partnership has paid or deposited with the
Trustee a sum sufficient to pay in the currency, currency unit or
composite currency in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the
Securities of such series):
(A) all overdue installments of interest on
and any Additional Amounts payable in respect of all
Outstanding Securities of that series and any related coupons,
(B) the principal of (and premium or
Make-Whole Amount, if any, on) any Outstanding Securities of
that series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate
or rates borne by or provided for in such Securities,
(C) to the extent that payment of such
interest is lawful, interest upon overdue installments of
interest and any Additional Amounts at the rate or rates borne
by or provided for in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(2) all Events of Default with respect to
Securities of that series, other than the nonpayment of the principal
of (or premium or Make-Whole Amount, if any) or interest on Securities
of that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE. The Partnership covenants that if:
(1) default is made in the payment of any
installment of interest or Additional Amounts, if any, on any Security
of any series and any related coupon when such interest or Additional
Amount becomes due and payable and such default continues for a period
of 30 days, or
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(2) default is made in the payment of the principal
of (or premium or Make-Whole Amount, if any, on) any Security of any
series at its Maturity,
then the Partnership will, upon demand of the Trustee, pay to the Trustee, for
the benefit of the Holders of such Securities of such series and coupons, the
whole amount then due and payable on such Securities and coupons for principal
(and premium or Make-Whole Amount, if any) and interest and Additional Amounts,
with interest upon any overdue principal (and premium or Make-Whole Amount, if
any) and, to the extent that payment of such interest shall be legally
enforceable, upon any overdue installments of interest or Additional Amounts, if
any, at the rate or rates borne by or provided for in such Securities, and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Partnership fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Partnership or any other obligor upon such
Securities of such series and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of the Partnership or
any other obligor upon such Securities of such series, wherever situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
and any related coupons by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Partnership or any other obligor upon the Securities or the property of the
Partnership or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities of any series shall
then be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the
Partnership for the payment of overdue principal, premium or Make-Whole Amount,
if any, or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise:
(i) to file and prove a claim for the whole amount,
or such lesser amount as may be provided for in the Securities of such
series, of principal (and premium or Make-Whole Amount, if any) and
interest and Additional Amounts, if any, owing and unpaid in respect of
the Securities and to file such other papers or documents
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as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other
property payable or deliverable on any such claims and to distribute
the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of Securities of such series and coupons to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee and any predecessor Trustee, their agents and counsel, and any other
amounts due the Trustee or any predecessor Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or coupon in any such proceeding.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the Holders
of the Securities, and it shall not be necessary to make any Holders of the
Securities parties to any such proceedings.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES OR COUPONS. All rights of action and claims under this Indenture or
any of the Securities or coupons may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or coupons or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities and coupons in respect of which such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED. Any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium or Make-Whole Amount, if any) or
interest and any Additional Amounts, upon presentation of the Securities or
coupons, or both, as the case may be, and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
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FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon
the Securities and coupons for principal (and premium or Make-Whole
Amount, if any) and interest and any Additional Amounts payable, in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the aggregate amounts due and payable on such Securities
and coupons for principal (and premium or Make-Whole Amount, if any),
interest and Additional Amounts, respectively; and
THIRD: To the payment of the remainder, if any, to the
Partnership.
SECTION 507. LIMITATION ON SUITS. No Holder of any Security of any
series or any related coupon shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal
amount of the Outstanding Securities of that series shall have made
written request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the
Trustee indemnity reasonably satisfactory to the Trustee against the
costs, expenses and liabilities to be incurred in compliance with such
request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the Holders
of a majority in principal amount of the Outstanding Securities of
that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
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SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM OR MAKE-WHOLE AMOUNT, IF ANY, INTEREST AND ADDITIONAL AMOUNTS.
Notwithstanding any other provision in this Indenture, the Holder of any
Security or coupon shall have the right which is absolute and unconditional to
receive payment of the principal of (and premium or Make-Whole Amount, if any)
and (subject to Sections 305 and 307) interest on, and any Additional Amounts in
respect of, such Security or payment of such coupon on the respective due dates
expressed in such Security or coupon (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or any
Holder of a Security or coupon has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, the Partnership, the Trustee and
the Holders of Securities and coupons shall, subject to any determination in
such proceeding, be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
the Holders shall continue as though no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities or coupons in the last paragraph of Section 306, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders of Securities or coupons is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER. No delay or omission of the
Trustee or of any Holder of any Security or coupon to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders of Securities or coupons, as the
case may be.
SECTION 512. CONTROL BY HOLDERS OF SECURITIES. The Holders of not less
than a majority in principal amount of the Outstanding Securities of any series
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee with respect to the Securities of such series,
provided that
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(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve
it in personal liability or be unduly prejudicial to the Holders of
Securities of such series not joining therein.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction by Holders.
SECTION 513. WAIVER OF PAST DEFAULTS. The Holders of not less than a
majority in principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series and any related
coupons waive any past default hereunder with respect to such series and its
consequences, except a default
(1) in the payment of the principal of (or premium or
Make-Whole Amount, if any) or interest on or Additional Amounts payable
in respect of any Security of such series or any related coupons, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 514. WAIVER OF USURY, STAY OR EXTENSION LAWS. The Partnership
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any usury, stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Partnership (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 515. UNDERTAKING FOR COSTS. All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be deemed
to have agreed, that any
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court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities of
any series, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of (or premium or Make-Whole Amount, if any) or
interest on any Security on or after the respective Stated Maturities expressed
in such Security (or, in the case of redemption, on or after the Redemption
Date).
ARTICLE SIX - THE TRUSTEE
SECTION 601. NOTICE OF DEFAULTS. Within 90 days after the occurrence of
any default hereunder with respect to the Securities of any series, the Trustee
shall transmit in the manner and to the extent provided in TIA Section 313(c),
notice of such default hereunder known to the Trustee, unless such default shall
have been cured or waived; PROVIDED, HOWEVER, that, except in the case of a
default in the payment of the principal of (or premium or Make-Whole Amount, if
any) or interest on or any Additional Amounts with respect to any Security of
such series, or in the payment of any sinking fund installment with respect to
the Securities of such series, the Trustee shall be protected in withholding
such notice if and so long as Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interests of the Holders
of the Securities and coupons of such series; and PROVIDED FURTHER that in the
case of any default or breach of the character specified in Section 501(4) with
respect to the Securities and coupons of such series, no such notice to Holders
shall be given until at least 60 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default with respect
to the Securities of such series.
SECTION 602. CERTAIN RIGHTS OF TRUSTEE. Subject to the provisions of
TIA Section 315(a) through 315(d):
(1) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, coupon or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(2) any request or direction of the Partnership
mentioned herein shall be sufficiently evidenced by a Partnership
Request or Partnership Order (other than
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delivery of any Security, together with any coupons appertaining
thereto, to the Trustee for authentication and delivery pursuant to
Section 303 which shall be sufficiently evidenced as provided therein)
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture
the Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon an
Officers' Certificate;
(4) the Trustee may consult with counsel and the
written advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(5) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture at
the request or direction of any of the Holders of Securities of any
series or any related coupons pursuant to this Indenture, unless such
Holders shall have offered to the Trustee security or indemnity
reasonably satisfactory to the Trustee against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction;
(6) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, coupon or other paper
or document, unless requested in writing so to do by the Holders of not
less than a majority in aggregate principal amount of the Outstanding
Securities of any series; PROVIDED that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in
the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the Trustee
may require reasonable indemnity against such expenses or liabilities
as a condition to proceeding; the reasonable expenses of every such
examination shall be paid by the Holders or, if paid by the Trustee,
shall be repaid by the Holders upon demand. The Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall determine
to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Partnership and the
Company, as applicable, relevant to the facts or matters that are the
subject of its inquiry, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through agents or attorneys and
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the Trustee shall not be responsible for any misconduct or negligence
on the part of any agent or attorney appointed with due care by it
hereunder; and
(8) the Trustee shall not be liable for any action
taken, suffered or omitted by it in good faith and reasonably believed
by it to be authorized or within the discretion or rights or powers
conferred upon it by this Indenture.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Except during the continuance of an Event of Default, the Trustee
undertakes to perform only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee.
SECTION 603. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the Trustee's
certificate of authentication, and in any coupons shall be taken as the
statements of the Partnership, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctneSection The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Partnership of Securities or the proceeds thereof.
SECTION 604. MAY HOLD SECURITIES. The Trustee, any Paying Agent,
Security Registrar, Authenticating Agent or any other agent of the Partnership,
in its individual or any other capacity, may become the owner or pledgee of
Securities and coupons and, subject to TIA Sections 310(b) and 311, may
otherwise deal with the Partnership with the same rights it would have if it
were not Trustee, Paying Agent, Security Registrar, Authenticating Agent or such
other agent.
SECTION 605. MONEY HELD IN TRUST. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Partnership.
SECTION 606. COMPENSATION AND REIMBURSEMENT. The Partnership agrees:
(1) to pay to the Trustee from time to time
reasonable compensation for all services rendered by it hereunder
(which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
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(2) except as otherwise expressly provided herein,
to reimburse each of the Trustee and any predecessor Trustee upon its
request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the
reasonable expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable
to its negligence or bad faith; and
(3) to indemnify each of the Trustee and any
predecessor Trustee for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs
and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 501(5) or Section 501(6), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
As security for the performance of the obligations of the Partnership
under this Section, the Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the payment of principal of (or premium or Make-Whole Amount,
if any) or interest on particular Securities or any coupons.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY; CONFLICTING
INTERESTS. There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and shall have a combined
capital and surplus of at least $50,000,000. If such corporation publishes
reports of condition at least annually, pursuant to law or the requirements of
Federal, state, territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article. Neither the Partnership nor
any Person directly or indirectly controlling, controlled by, or under common
control with the Partnership shall serve as Trustee.
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SECTION 608. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Partnership. If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time with respect to
the Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to the Trustee and
to the Partnership.
(d) If at any time:
(1) the Trustee shall fail to comply with the
provisions of TIA Section 310(b) after written request therefor by the
Partnership or by any Holder of a Security who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under
Section 607 and shall fail to resign after written request therefor by
the Partnership or by any Holder of a Security who has been a bona fide
Holder of a Security for at least six months, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Partnership by or pursuant to a Board Resolution
may remove the Trustee and appoint a successor Trustee with respect to all
Securities, or (ii) subject to TIA Section 315(e), any Holder of a Security who
has been a bona fide Holder of a Security for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause with respect to the Securities of one or more series, the Partnership,
by or pursuant to a Board Resolution, shall promptly appoint a successor Trustee
or Trustees with respect to the Securities of that or those series (it
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being understood that any such successor Trustee may be appointed with respect
to the Securities of one or more or all of such series and that at any time
there shall be only one Trustee with respect to the Securities of any particular
series). If, within one year after such resignation, removal or incapability, or
the occurrence of such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the Holders of a majority
in principal amount of the Outstanding Securities of such series delivered to
the Partnership and the retiring Trustee, the successor Trustee so appointed
shall, forthwith upon its acceptance of such appointment, become the successor
Trustee with respect to the Securities of such series and to that extent
supersede the successor Trustee appointed by the Partnership. If no successor
Trustee with respect to the Securities of any series shall have been so
appointed by the Partnership or the Holders of Securities and accepted
appointment in the manner hereinafter provided, any Holder of a Security who has
been a bona fide Holder of a Security of such series for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to Securities of such series.
(f) The Partnership shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of any
series in the manner provided for notices to the Holders of Securities in
Section 106. Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate Trust
Office.
SECTION 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. (a) In case of the
appointment hereunder of a successor Trustee with respect to all Securities,
every such successor Trustee so appointed shall execute, acknowledge and deliver
to the Partnership and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on request of the Partnership or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee, and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder, subject nevertheless to its claim, if any,
provided for in Section 606.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Partnership, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto, pursuant to Article Nine hereof, wherein each successor
Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the
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Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Partnership or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the
Partnership shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (a) or (b) of this Section 609, as the case may
be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 610. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities or coupons shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities or coupons so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities or coupons. In case any Securities or coupons
shall not have been authenticated by such predecessor Trustee, any such
successor Trustee may authenticate and deliver such Securities or coupons, in
either its own name or that of its predecessor Trustee, with the full
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force and effect which this Indenture provides for the certificate of
authentication of the Trustee.
SECTION 611. APPOINTMENT OF AUTHENTICATING AGENT. At any time when any
of the Securities remain Outstanding, the Trustee may appoint an Authenticating
Agent or Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon exchange, registration of transfer or partial redemption or
repayment thereof, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes as
if authenticated by the Trustee hereunder. Any such appointment shall be
evidenced by an instrument in writing signed by a Responsible Officer of the
Trustee, a copy of which instrument shall be promptly furnished to the
Partnership. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Partnership and shall at
all times be a bank or trust company or corporation organized and doing business
and in good standing under the laws of the United States of America or of any
state or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by Federal or state
authorities. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or the requirements of the aforesaid supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. In case at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or further act
on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any time
resign by giving written notice of resignation to the Trustee for such series
and to the Partnership. The Trustee for any series of Securities may at any time
terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Partnership. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this
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Section, the Trustee for such series may appoint a successor Authenticating
Agent which shall be acceptable to the Partnership and shall give notice of such
appointment to all Holders of Securities of the series with respect to which
such Authenticating Agent will serve in the manner set forth in Section 106. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent
herein. No successor Authenticating Agent shall be appointed unless eligible
under the provisions of this Section.
The Partnership agrees to pay to each Authenticating Agent from time to
time reasonable compensation including reimbursement of its reasonable expenses
for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
FIRST UNION NATIONAL BANK
as Trustee
By:__________________________________
as Authenticating Agent
By:__________________________________
Authorized Signatory
ARTICLE SEVEN - HOLDERS' LISTS AND REPORTS BY TRUSTEE AND
PARTNERSHIP
SECTION 701. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS. Every Holder
of Securities or coupons, by receiving and holding the same, agrees with the
Partnership and the Trustee that neither the Partnership nor the Trustee nor any
Authenticating Agent nor any Paying Agent nor any Security Registrar shall be
held accountable by reason of the disclosure of any information as to the names
and addresses of the Holders of Securities in accordance with TIA Section 312,
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material pursuant
to a request made under TIA Section 312(b).
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SECTION 702. REPORTS BY TRUSTEE. In accordance with and if required by
TIA Section 313(a), within 60 days after May 15 of each year commencing with the
first May 15 after the first issuance of Securities pursuant to this Indenture,
the Trustee shall transmit by mail to all Holders of Securities as provided in
TIA Section 313(c) a brief report dated as of such May 15.
SECTION 703. REPORTS BY PARTNERSHIP. The Partnership will:
(1) file with the Trustee, within 15 days after the
Partnership is required to file the same with the Commission, copies of
the annual reports and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the Commission
may from time to time by rules and regulations prescribe) which the
Partnership may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934; or,
if the Partnership is not required to file information, documents or
reports pursuant to either of such Sections, then it will file with the
Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may
be required pursuant to Section 13 of the Securities Exchange Act of
1934 in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such
rules and regulations;
(2) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such additional information, documents and reports with
respect to compliance by the Partnership with the conditions and
covenants of this Indenture as may be required from time to time by
such rules and regulations; and
(3) transmit by mail to the Holders of Securities,
within 30 days after the filing thereof with the Trustee, in the manner
and to the extent provided in TIA Section 313(c), such summaries of any
information, documents and reports required to be filed by the
Partnership pursuant to paragraphs (1) and (2) of this Section as may
be required by rules and regulations prescribed from time to time by
the Commission.
SECTION 704. PARTNERSHIP TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS. The Partnership will furnish or cause to be furnished to the Trustee:
(a) semiannually, not later than 15 days after the Regular
Record Date for interest for each series of Securities, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the Holders of
Registered Securities of such series as of such Regular Record Date, or if there
is no Regular Record Date for interest for such series of Securities,
semiannually, upon such dates as are set forth in the Board Resolution or
indenture supplemental hereto authorizing such series, and
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(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Partnership of any such request, a list
of similar form and content as of a date not more than 15 days prior to the time
such list is furnished,
provided, however, that, so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished.
ARTICLE EIGHT - CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. CONSOLIDATIONS AND MERGERS OF PARTNERSHIP AND SALES,
LEASES AND CONVEYANCES PERMITTED SUBJECT TO CERTAIN CONDITIONS. The Partnership
may consolidate with, or sell, lease or convey all or substantially all of its
assets to, or merge with or into, any other entity, provided that in any such
case, (1) either the Partnership shall be the continuing entity, or the
successor entity (if other than the Partnership) formed by or resulting from any
such consolidation or merger or which shall have received the transfer of such
assets, shall expressly assume the due and punctual payment of the principal of
(and premium or Make-Whole Amount, if any) and any interest (including all
Additional Amounts, if any, payable pursuant to Section 1009) on all of the
Securities, according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be
performed by the Partnership by supplemental indenture, complying with Article
Nine hereof, satisfactory to the Trustee, executed and delivered to the Trustee
by such entity and (2) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Partnership or any
Subsidiary as a result thereof as having been incurred by the Partnership or
such Subsidiary at the time of such transaction, no Event of Default, and no
event which, after notice or the lapse of time, or both, would become an Event
of Default, shall have occurred and be continuing.
SECTION 802. RIGHTS AND DUTIES OF SUCCESSOR ENTITY. In case of any such
consolidation, merger, sale, lease or conveyance and upon any such assumption by
the successor entity, such successor entity shall succeed to and be substituted
for the Partnership, with the same effect as if it had been named herein as the
party of the first part, and the predecessor entity, except in the event of a
lease, shall be relieved of any further obligation under this Indenture and the
Securities. Such successor entity thereupon may cause to be signed, and may
issue either in its own name or in the name of the Partnership, any or all of
the Securities issuable hereunder which theretofore shall not have been signed
by the Partnership and delivered to the Trustee; and, upon the order of such
successor entity, instead of the Partnership, and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities which previously shall have been
signed and delivered by the Partnership to the Trustee for authentication, and
any Securities which such successor entity thereafter shall cause to be signed
and delivered to the Trustee for that purpose. All the Securities so issued
shall in all respects have the same legal rank and benefit under this Indenture
as the Securities theretofore or thereafter issued in
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accordance with the terms of this Indenture as though all of such Securities had
been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance,
such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
SECTION 803. OFFICERS' CERTIFICATE AND OPINION OF COUNSEL. Any
consolidation, merger, sale, lease or conveyance permitted under Section 801 is
also subject to the condition that the Trustee receive an Officers' Certificate
and an Opinion of Counsel to the effect that any such consolidation, merger,
sale, lease or conveyance, and the assumption by any successor entity, complies
with the provisions of this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
ARTICLE NINE - SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders of Securities or coupons, the Partnership,
when authorized by or pursuant to a Board Resolution, and the Trustee, at any
time and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to
the Partnership and the assumption by any such successor of the
covenants of the Partnership herein and in the Securities contained; or
(2) to add to the covenants of the Partnership for
the benefit of the Holders of all or any series of Securities (and if
such covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being included
solely for the benefit of such series) or to surrender any right or
power herein conferred upon the Partnership; or
(3) to add any additional Events of Default for the
benefit of the Holders of all or any series of Securities (and if such
Events of Default are to be for the benefit of less than all series of
Securities, stating that such Events of Default are expressly being
included solely for the benefit of such series); provided, however,
that in respect of any such additional Events of Default such
supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed
in the case of other defaults) or may provide for an immediate
enforcement upon such default or may limit the remedies available to
the Trustee upon such default or may limit the right of the Holders of
a majority in aggregate principal
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amount of that or those series of Securities to which such additional
Events of Default apply to waive such default; or
(4) to add to or change any of the provisions of
this Indenture to provide that Bearer Securities may be registrable as
to principal, to change or eliminate any restrictions on the payment of
principal of or any premium or Make-Whole Amount or interest on Bearer
Securities, to permit Bearer Securities to be issued in exchange for
Registered Securities, to permit Bearer Securities to be issued in
exchange for Bearer Securities of other authorized denominations or to
permit or facilitate the issuance of Securities in uncertificated form,
PROVIDED that any such action shall not adversely affect the interests
of the Holders of Securities of any series or any related coupons in
any material respect; or
(5) to change or eliminate any of the provisions of
this Indenture, PROVIDED that any such change or elimination shall
become effective only when there is no Security Outstanding of any
series created prior to the execution of such supplemental indenture
which is entitled to the benefit of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of
any series and any related coupons as permitted by Sections 201 and
301; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee; or
(9) to cure any ambiguity, to correct or supplement
any provision herein which may be defective or inconsistent with any
other provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture which shall not be
inconsistent with the provisions of this Indenture, PROVIDED such
provisions shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material
respect; or
(10) to supplement any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the defeasance and discharge of any series of Securities pursuant to
Sections 401, 1402 and 1403; PROVIDED that any such action shall not
adversely affect the interests of the Holders of Securities of such
series and any related coupons or any other series of Securities in any
material respect.
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SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS. With the
consent of the Holders of not less than a majority in principal amount of all
Outstanding Securities affected by such supplemental indenture, by Act of said
Holders delivered to the Partnership and the Trustee, the Partnership, when
authorized by or pursuant to a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities and any related coupons under this Indenture; PROVIDED, HOWEVER, that
no such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of
(or premium or Make-Whole Amount, if any, on) or any installment of
principal of or interest on, any Security; or reduce the principal
amount thereof or the rate or amount of interest thereon or any
Additional Amounts payable in respect thereof, or any premium or
Make-Whole Amount payable upon the redemption thereof, or change any
obligation of the Partnership to pay Additional Amounts pursuant to
Section 1009 (except as contemplated by Section 801(l) and permitted by
Section 901(1)), or reduce the amount of the principal of an Original
Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
502 or the amount thereof provable in bankruptcy pursuant to Section
504, or adversely affect any right of repayment at the option of the
Holder of any Security, or change any Place of Payment where, or the
currency or currencies, currency unit or units or composite currency or
currencies in which, any Security or any premium or Make-Whole Amount
or the interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption or repayment at the
option of the Holder, on or after the Redemption Date or the Repayment
Date, as the case may be), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver with respect to such series (or
compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this
Indenture, or reduce the requirements of Section 1504 for quorum or
voting, or
(3) modify any of the provisions of this Section,
Section 513 or Section 1010, except to increase the required percentage
to effect such action or to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
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A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modification thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution of
any supplemental indenture under this Article, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder and of any coupon appertaining
thereto shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall, if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Partnership shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Partnership, to any such supplemental indenture
may be prepared and executed by the Partnership and authenticated and delivered
by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN - COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM OR MAKE-WHOLE AMOUNT, IF
ANY; INTEREST AND ADDITIONAL AMOUNTS. The Partnership covenants and agrees for
the benefit of the Holders of each series of Securities that it will duly and
punctually pay the principal of (and premium or Make-Whole Amount, if any) and
interest on and any Additional Amounts payable in respect of the Securities of
that series in accordance with the terms of such series of Securities, any
coupons appertaining thereto and this Indenture. Unless otherwise specified as
contemplated by Section 301 with respect to any series of Securities, any
interest due on and
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any Additional Amounts payable in respect of Bearer Securities on or before
Maturity, other than Additional Amounts, if any, payable as provided in Section
1009 in respect of principal of (or premium or Make-Whole Amount, if any, on)
such a Security, shall be payable only upon presentation and surrender of the
several coupons for such interest installments as are evidenced thereby as they
severally mature. Unless otherwise specified with respect to Securities of any
series pursuant to Section 301, at the option of the Partnership, all payments
of principal may be paid by check to the registered Holder of the Registered
Security or other person entitled thereto against surrender of such Security.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY. If Securities of a
series are issuable only as Registered Securities, the Partnership shall
maintain in each Place of Payment for any series of Securities an office or
agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Partnership in
respect of the Securities of that series and this Indenture may be served. If
Securities of a series are issuable as Bearer Securities, the Partnership will
maintain: (A) in the Borough of Manhattan, The City of New York, an office or
agency where any Registered Securities of that series may be presented or
surrendered for payment, where any Registered Securities of that series may be
surrendered for registration of transfer, where Securities of that series may be
surrendered for exchange, where notices and demands to or upon the Partnership
in respect of the Securities of that series and this Indenture may be served and
where Bearer Securities of that series and related coupons may be presented or
surrendered for payment in the circumstances described in the following
paragraph (and not otherwise); (B) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series which is located outside the
United States, an office or agency where Securities of that series and related
coupons may be presented and surrendered for payment (including payment of any
Additional Amounts payable on Securities of that series pursuant to Section
1009); PROVIDED, HOWEVER, that if the Securities of that series are listed on
any stock exchange located outside the United States and such stock exchange
shall so require, the Partnership will maintain a Paying Agent for the
Securities of that series in any required city located outside the United
States, as the case may be, so long as the Securities of that series are listed
on such exchange; and (C) subject to any laws or regulations applicable thereto,
in a Place of Payment for that series located outside the United States an
office or agency where any Registered Securities of that series may be
surrendered for registration of transfer, where Securities of that series may be
surrendered for exchange and where notices and demands to or upon the
Partnership in respect of the Securities of that series and this Indenture may
be served. The Partnership will give prompt written notice to the Trustee of the
location, and any change in the location, of each such office or agency. If at
any time the Partnership shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, except that Bearer Securities of that
series and the related coupons may be presented and surrendered for payment
(including payment of any Additional Amounts payable on Bearer Securities of
that series pursuant to Section 1009) at the offices specified in the Security,
in London, England.
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Unless otherwise specified with respect to any Securities pursuant to
Section 301, no payment of principal, premium or Make-Whole Amount or interest
on or Additional Amounts in respect of Bearer Securities shall be made at any
office or agency of the Partnership in the United States or by check mailed to
any address in the United States or by transfer to an account maintained with a
bank located in the United States; PROVIDED, HOWEVER, that, if the Securities of
a series are payable in Dollars, payment of principal of and any premium or
Make-Whole Amount and interest on any Bearer Security (including any Additional
Amounts payable on Securities of such series pursuant to Section 1009) shall be
made at the office of the Partnership's Paying Agent in the Borough of
Manhattan, The City of New York, if (but only if) payment in Dollars of the full
amount of such principal, premium or Make-Whole Amount, interest or Additional
Amounts, as the case may be, at all offices or agencies outside the United
States maintained for the purpose by the Partnership in accordance with this
Indenture, is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Partnership may from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all of such purposes, and may from time to time
rescind such designations; PROVIDED, HOWEVER, that no such designation or
rescission shall in any manner relieve the Partnership of its obligation to
maintain an office or agency in accordance with the requirements set forth above
for Securities of any series for such purposes. The Partnership will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency. Unless otherwise
specified with respect to any Securities pursuant to Section 301 with respect to
a series of Securities, the Partnership hereby designates as a Place of Payment
for each series of Securities the office or agency of the Partnership in the
City of Charlotte, North Carolina, and initially appoints the Trustee at its
Corporate Trust Office as Paying Agent in such city and as its agent to receive
all such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (i) are denominated
in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long
as it is required under any other provision of the Indenture, then the
Partnership will maintain with respect to each such series of Securities, or as
so required, at least one exchange rate agent.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST. If the
Partnership shall at any time act as its own Paying Agent with respect to any
series of any Securities and any related coupons, it will, on or before each due
date of the principal of (and premium or Make-Whole Amount, if any), or interest
on or Additional Amounts in respect of, any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum in the currency or currencies, currency unit or units or composite currency
or currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series)
sufficient to pay the principal (and premium or Make-Whole Amount, if any) or
interest or Additional Amounts so
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becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided, and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Partnership shall have one or more Paying Agents for any
series of Securities and any related coupons, it will, on or before each due
date of the principal of (and premium or Make-Whole Amount, if any), or interest
on or Additional Amounts in respect of, any Securities of that series, deposit
with a Paying Agent a sum (in the currency or currencies, currency unit or units
or composite currency or currencies described in the preceding paragraph)
sufficient to pay the principal (and premium or Make-Whole Amount, if any) or
interest or Additional Amounts, so becoming due, such sum to be held in trust
for the benefit of the Persons entitled to such principal, premium or Make-Whole
Amount or interest or Additional Amounts and (unless such Paying Agent is the
Trustee) the Partnership will promptly notify the Trustee of its action or
failure so to act.
The Partnership will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will
(1) hold all sums held by it for the payment of
principal of (and premium or Make-Whole Amount, if any) or interest on
Securities in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise disposed of
as herein provided;
(2) give the Trustee notice of any default by the
Partnership (or any other obligor upon the Securities) in the making of
any such payment of principal (and premium or Make-Whole Amount, if
any) or interest on the Securities of that series; and
(3) at any time during the continuance of any such
default upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Partnership may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Partnership Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Partnership or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by the
Partnership or such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further liability with
respect to such sums.
Except as otherwise provided in the Securities of any series, any money
deposited with the Trustee or any Paying Agent, or then held by the Partnership,
in trust for the payment of the principal of (and premium or Make-Whole Amount,
if any) or interest on, or any
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Additional Amounts in respect of, any Security of any series and remaining
unclaimed for two years after such principal (and premium or Make-Whole Amount,
if any), interest or Additional Amounts has become due and payable shall be paid
to the Partnership upon Partnership Request or (if then held by the Partnership)
shall be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Partnership for
payment of such principal of (and premium or Make-Whole Amount, if any) or
interest on, or any Additional Amounts in respect of, any Security, without
interest thereon, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Partnership as trustee
thereof, shall thereupon cease; PROVIDED, HOWEVER, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Partnership cause to be published once, in an Authorized
Newspaper, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Partnership.
SECTION 1004. EXISTENCE. Subject to Article Eight, the Partnership will
do or cause to be done all things necessary to preserve and keep in full force
and effect its limited partnership existence, all material rights (by agreement
of limited partnership and statute) and material franchises; PROVIDED, HOWEVER,
that the Partnership shall not be required to preserve any such right or
franchise if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the
Partnership.
SECTION 1005. MAINTENANCE OF PROPERTIES. The Partnership will cause all
of its material properties used or useful in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Partnership may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; PROVIDED, HOWEVER, that the Partnership and its
Subsidiaries shall not be prevented from selling or otherwise disposing of their
properties for value in the ordinary course of business.
SECTION 1006. INSURANCE. The Partnership will cause each of its and its
Subsidiaries' insurable properties to be insured against loss or damage in an
amount at least equal to their then full insurable value with insurers of
recognized responsibility.
SECTION 1007. PAYMENT OF TAXES AND OTHER CLAIMS. The Partnership will
pay or discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all taxes, assessments and governmental charges levied or
imposed upon it or any Subsidiary or upon the income, profits or property of the
Partnership or any Subsidiary, and (2) all lawful claims for labor, materials
and supplies which, if unpaid, might by law become a lien upon the property of
the Partnership or any Subsidiary; PROVIDED, HOWEVER, that the Partnership shall
not be required to pay or discharge or cause to be paid or discharged any such
tax, assessment,
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charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings.
SECTION 1008. STATEMENT AS TO COMPLIANCE. The Partnership will deliver
to the Trustee, within 120 days after the end of each fiscal year, a brief
certificate from the principal executive officer, principal financial officer or
principal accounting officer of the Company, as general partner of the
Partnership, as to his or her knowledge of the Partnership's compliance with all
conditions and covenants under this Indenture and, in the event of any
noncompliance, specifying such noncompliance and the nature and status thereof.
For purposes of this Section 1008, such compliance shall be determined without
regard to any period of grace or requirement of notice under this Indenture.
SECTION 1009. ADDITIONAL AMOUNTS. If any Securities of a series provide
for the payment of Additional Amounts, the Partnership will pay to the Holder of
any Security of such series or any coupon appertaining thereto Additional
Amounts as may be specified as contemplated by Section 301. Whenever in this
Indenture there is mentioned, in any context except in the case of Section
502(l), the payment of the principal of or any premium or Make-Whole Amount or
interest on, or in respect of, any Security of any series or payment of any
related coupon or the net proceeds received on the sale or exchange of any
Security of any series, such mention shall be deemed to include mention of the
payment of Additional Amounts provided by the terms of such series established
pursuant to Section 301 to the extent that, in such context, Additional Amounts
are, were or would be payable in respect thereof pursuant to such terms and
express mention of the payment of Additional Amounts (if applicable) in any
provisions hereof shall not be construed as excluding Additional Amounts in
those provisions hereof where such express mention is not made.
Except as otherwise specified as contemplated by Section 301, if the
Securities of a series provide for the payment of Additional Amounts, at least
10 days prior to the first Interest Payment Date with respect to that series of
Securities (or if the Securities of that series will not bear interest prior to
Maturity, the first day on which a payment of principal and any premium or
Make-Whole Amount is made), and at least 10 days prior to each date of payment
of principal and any premium or Make-Whole Amount or interest if there has been
any change with respect to the matters set forth in the below-mentioned
Officers' Certificate, the Partnership will furnish the Trustee and the
Partnership's principal Paying Agent or Paying Agents, if other than the
Trustee, with an Officers' Certificate instructing the Trustee and such Paying
Agent or Paying Agents whether such payment of principal of and any premium or
Make-Whole Amount or interest on the Securities of that series shall be made to
Holders of Securities of that series or any related coupons who are not United
States persons without withholding for or on account of any tax, assessment or
other governmental charge described in the Securities of the series. If any such
withholding shall be required, then such Officers' Certificate shall specify by
country the amount, if any, required to be withheld on such payments to such
Holders of Securities of that series or related coupons and the Partnership will
pay to the Trustee or such Paying Agent the Additional Amounts required by the
terms of
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such Securities. In the event that the Trustee or any Paying Agent, as the case
may be, shall not so receive the above-mentioned certificate, then the Trustee
or such Paying Agent shall be entitled (i) to assume that no such withholding or
deduction is required with respect to any payment of principal or interest with
respect to any Securities of a series or related coupons until it shall have
received a certificate advising otherwise and (ii) to make all payments of
principal and interest with respect to the Securities of a series or related
coupons without withholding or deductions until otherwise advised. The
Partnership covenants to indemnify the Trustee and any Paying Agent for, and to
hold them harmless against, any loss, liability or expense reasonably incurred
without negligence or bad faith on their part arising out of or in connection
with actions taken or omitted by any of them or in reliance on any Officers'
Certificate furnished pursuant to this Section or in reliance on the
Partnership's not furnishing such an Officers' Certificate.
SECTION 1010. WAIVER OF CERTAIN COVENANTS. The Partnership may omit in
any particular instance to comply with any term, provision or condition set
forth in Sections 1004 to 1007, inclusive, if before or after the time for such
compliance the Holders of at least a majority in principal amount of all
outstanding Securities of such series, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Partnership and the duties of the
Trustee in respect of any such term, provision or condition shall remain in full
force and effect.
ARTICLE ELEVEN - REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE. Securities of any series which
are redeemable before their Stated Maturity shall be redeemable in accordance
with their terms and (except as otherwise specified as contemplated by Section
301 for Securities of any series) in accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE. The election of
the Partnership to redeem any Securities shall be evidenced by or pursuant to a
Board Resolution. In case of any redemption at the election of the Partnership
of less than all of the Securities of any series, the Partnership shall, at
least 45 days prior to the giving of the notice of redemption in Section 1104
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount of Securities of
such series to be redeemed. In the case of any redemption of Securities prior to
the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Partnership shall furnish
the Trustee with an Officers' Certificate evidencing compliance with such
restriction.
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SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED. If
less than all the Securities of any series issued on the same day with the same
terms are to be redeemed, the particular Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Trustee, from
the Outstanding Securities of such series issued on such date with the same
terms not previously called for redemption, by such method as the Trustee shall
deem fair and appropriate and which may provide for the selection for redemption
of portions (equal to the minimum authorized denomination for Securities of that
series or any integral multiple thereof) of the principal amount of Securities
of such series of a denomination larger than the minimum authorized denomination
for Securities of that series.
The Trustee shall promptly notify the Partnership and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 1104. NOTICE OF REDEMPTION. Notice of redemption shall be given
in the manner provided in Section 106, not less than 30 days nor more than 60
days prior to the Redemption Date, unless a shorter period is specified by the
terms of such series established pursuant to Section 301, to each Holder of
Securities to be redeemed, but failure to give such notice in the manner herein
provided to the Holder of any Security designated for redemption as a whole or
in part, or any defect in the notice to any such Holder, shall not affect the
validity of the proceedings for the redemption of any other such Security or
portion thereof.
Any notice that is mailed to the Holders of Registered Securities in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, accrued interest to the
Redemption Date payable as provided in Section 1106, if any, and
Additional Amounts, if any,
(3) if less than all Outstanding Securities of any
series are to be redeemed, the identification (and, in the case of
partial redemption, the principal amount) of the particular Security or
Securities to be redeemed,
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(4) in case any Security is to be redeemed in part
only, the notice which relates to such Security shall state that on and
after the Redemption Date, upon surrender of such Security, the holder
will receive, without a charge, a new Security or Securities of
authorized denominations for the principal amount thereof remaining
unredeemed,
(5) that on the Redemption Date the Redemption
Price and accrued interest to the Redemption Date payable as provided
in Section 1106, if any, will become due and payable upon each such
Security, or the portion thereof, to be redeemed and, if applicable,
that interest thereon shall cease to accrue on and after said date,
(6) the Place or Places of Payment where such
Securities, together in the case of Bearer Securities with all coupons
appertaining thereto, if any, maturing after the Redemption Date, are
to be surrendered for payment of the Redemption Price and accrued
interest, if any,
(7) that the redemption is for a sinking fund, if
such is the case,
(8) that, unless otherwise specified in such
notice, Bearer Securities of any series, if any, surrendered for
redemption must be accompanied by all coupons maturing subsequent to
the date fixed for redemption or the amount of any such missing coupon
or coupons will be deducted from the Redemption Price, unless security
or indemnity satisfactory to the Partnership, the Trustee for such
series and any Paying Agent is furnished,
(9) if Bearer Securities of any series are to be
redeemed and any Registered Securities of such series are not to be
redeemed, and if such Bearer Securities may be exchanged for Registered
Securities not subject to redemption on this Redemption Date pursuant
to Section 305 or otherwise, the last date, as determined by the
Partnership, on which such exchanges may be made, and
(10) the CUSIP number of such Security, if any.
Notice of redemption of Securities to be redeemed at the election of
the Partnership shall be given by the Partnership or, at the Partnership's
request, by the Trustee in the name and at the expense of the Partnership.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE. On or prior to any
Redemption Date, the Partnership shall deposit with the Trustee or with a Paying
Agent (or, if the Partnership is acting as its own Paying Agent, which it may
not do in the case of a sinking fund payment under Article Twelve, segregate and
hold in trust as provided in Section 1003) an amount of money in the currency or
currencies, currency unit or units or composite currency or
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currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series)
sufficient to pay on the Redemption Date the Redemption Price of, and (except if
the Redemption Date shall be an Interest Payment Date) accrued interest on, all
the Securities or portions thereof which are to be redeemed on that date.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) (together with accrued interest, if any, to the
Redemption Date), and from and after such date (unless the Partnership shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
redeemed, except to the extent provided below, shall be void. Upon surrender of
any such Security for redemption in accordance with said notice, together with
all coupons, if any, appertaining thereto maturing after the Redemption Date,
such Security shall be paid by the Partnership at the Redemption Price, together
with accrued interest, if any, to the Redemption Date; PROVIDED, HOWEVER, that
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section 1002)
and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of coupons for such interest; and PROVIDED further
that installments of interest on Registered Securities whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Partnership and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted;
PROVIDED, HOWEVER, that interest represented by coupons shall be payable only at
an office or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified as contemplated by
Section 301, only upon presentation and surrender of those coupons.
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If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium or Make-Whole
Amount, if any) shall, until paid, bear interest from the Redemption Date at the
rate borne by the Security.
SECTION 1107. SECURITIES REDEEMED IN PART. Any Registered Security
which is to be redeemed only in part (pursuant to the provisions of this Article
or of Article Twelve) shall be surrendered at a Place of Payment therefor (with,
if the Partnership or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Partnership and the Trustee
duly executed by, the Holder thereof or his attorney duly authorized in writing)
and the Partnership shall execute and the Trustee shall authenticate and deliver
to the Holder of such Security without service charge a new Security or
Securities of the same series, of any authorized denomination as requested by
such Holder in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered. If a Global
Security is so surrendered, the Partnership shall execute and the Trustee shall
authenticate and deliver to the depositary, without service charge, a new Global
Security in a denomination equal to and in exchange for the unredeemed portion
of the principal of the Global Security so surrendered.
ARTICLE TWELVE - SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 301 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of such Securities of any series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of any Securities of any
series, the cash amount of any mandatory sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Partnership may, in satisfaction of all or any part of any mandatory sinking
fund payment with respect to the Securities of a series, (1) deliver Outstanding
Securities of such series (other than any previously called for redemption)
together in the case of any Bearer Securities of such series with all unmatured
coupons appertaining thereto and (2) apply as a credit Securities of such series
which have been redeemed either at the election of the Partnership pursuant to
the terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, as provided for
by the terms of such Securities, or which have otherwise been acquired by the
Partnership; PROVIDED that such Securities so
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delivered or applied as a credit have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
applicable Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such mandatory sinking fund
payment shall be reduced accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND. Not less than
60 days prior to each sinking fund payment date for Securities of any series,
the Partnership will deliver to the Trustee an Officers' Certificate specifying
the amount of the next ensuing mandatory sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash in the currency or currencies, currency unit or
units or composite currency or currencies in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 1202, and the optional amount, if any, to be added in cash to the next
ensuing mandatory sinking fund payment, and will also deliver to the Trustee any
Securities to be so delivered and credited. If such Officers' Certificate shall
specify an optional amount to be added in cash to the next ensuing mandatory
sinking fund payment, the Partnership shall thereupon be obligated to pay the
amount therein specified. Not less than 30 days before each such sinking fund
payment date the Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Partnership in the manner provided in Section 1104. Such notice having
been duly given, the redemption of such Securities shall be made upon the terms
and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN - REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. APPLICABILITY OF ARTICLE. Repayment of Securities of any
series before their Stated Maturity at the option of Holders thereof shall be
made in accordance with the terms of such Securities, if any, and (except as
otherwise specified by the terms of such series established pursuant to Section
301) in accordance with this Article.
SECTION 1302. REPAYMENT OF SECURITIES. Securities of any series subject
to repayment in whole or in part at the option of the Holders thereof will,
unless otherwise provided in the terms of such Securities, be repaid at a price
equal to the principal amount thereof, together with interest, if any, thereon
accrued to the Repayment Date specified in or pursuant to the terms of such
Securities. The Partnership covenants that on or prior to the Repayment Date it
will deposit with the Trustee or with a Paying Agent (or, if the Partnership is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money in the currency or currencies, currency unit or
units or composite currency or currencies in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) sufficient to pay the principal (or, if
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so provided by the terms of the Securities of any series, a percentage of the
principal) of, and (except if the Repayment Date shall be an Interest Payment
Date) accrued interest on, all the Securities or portions thereof, as the case
may be, to be repaid on such date.
SECTION 1303. EXERCISE OF OPTION. Securities of any series subject to
repayment at the option of the Holders thereof will contain an "Option to Elect
Repayment" form on the reverse of such Securities. In order for any Security to
be repaid at the option of the Holder, the Trustee must receive at the Place of
Payment therefor specified in the terms of such Security (or at such other place
or places of which the Partnership shall from time to time notify the Holders of
such Securities) not earlier than 60 days nor later than 30 days prior to the
Repayment Date (1) the Security so providing for such repayment together with
the "Option to Elect Repayment" form on the reverse thereof duly completed by
the Holder (or by the Holder's attorney duly authorized in writing) or (2) a
telegram, telex, facsimile transmission or a letter from a member of a national
securities exchange, or the National Association of Securities Dealers, Inc.
("NASD"), or a commercial bank or trust company in the United States setting
forth the name of the Holder of the Security, the principal amount of the
Security, the principal amount of the Security to be repaid, the CUSIP number,
if any, or a description of the tenor and terms of the Security, a statement
that the option to elect repayment is being exercised thereby and a guarantee
that the Security to be repaid, together with the duly completed form entitled
"Option to Elect Repayment" on the reverse of the Security, will be received by
the Trustee not later than the fifth Business Day after the date of such
telegram, telex, facsimile transmission or letter; PROVIDED, HOWEVER, that such
telegram, telex, facsimile transmission or letter shall only be effective if
such Security and form duly completed are received by the Trustee by such fifth
Business Day. If less than the entire principal amount of such Security is to be
repaid in accordance with the terms of such Security, the principal amount of
such Security to be repaid, in increments of the minimum denomination for
Securities of such series, and the denomination or denominations of the Security
or Securities to be issued to the Holder for the portion of the principal amount
of such Security surrendered that is not to be repaid, must be specified. The
principal amount of any Security providing for repayment at the option of the
Holder thereof may not be repaid in part if, following such repayment, the
unpaid principal amount of such Security would be less than the minimum
authorized denomination of Securities of the series of which such Security to be
repaid is a part. Except as otherwise may be provided by the terms of any
Security providing for repayment at the option of the Holder thereof, exercise
of the repayment option by the Holder shall be irrevocable unless waived by the
Partnership.
SECTION 1304. WHEN SECURITIES PRESENTED FOR REPAYMENT BECOME DUE AND
PAYABLE. If Securities of any series providing for repayment at the option of
the Holders thereof shall have been surrendered as provided in this Article and
as provided by or pursuant to the terms of such Securities, such Securities or
the portions thereof, as the case may be, to be repaid shall become due and
payable and shall be paid by the Partnership on the Repayment Date therein
specified, and on and after such Repayment Date (unless the Partnership shall
default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same
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were interest-bearing, cease to bear interest and the coupons for such interest
appertaining to any Bearer Securities so to be repaid, except to the extent
provided below, shall be void. Upon surrender of any such Security for repayment
in accordance with such provisions, together with all coupons, if any,
appertaining thereto maturing after the Repayment Date, the principal amount of
such Security so to be repaid shall be paid by the Partnership, together with
accrued interest, if any, to the Repayment Date; PROVIDED, HOWEVER, that coupons
whose Stated Maturity is on or prior to the Repayment Date shall be payable only
at an office or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified pursuant to Section
301, only upon presentation and surrender of such coupons; and PROVIDED FURTHER
that, in the case of Registered Securities, installments of interest, if any,
whose Stated Maturity is on or prior to the Repayment Date shall be payable (but
without interest thereon, unless the Partnership shall default in the payment
thereof) to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 an amount equal to the face amount of all such missing
coupons, or the surrender of such missing coupon or coupons may be waived by the
Partnership and the Trustee if there be furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Security shall surrender to the
Trustee or any Paying Agent any such missing coupon in respect of which a
deduction shall have been made as provided in the preceding sentence, such
Holder shall be entitled to receive the amount so deducted; PROVIDED, HOWEVER,
that interest represented by coupons shall be payable only at an office or
agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those coupons.
If the principal amount of any Security surrendered for repayment shall
not be so repaid upon surrender thereof, such principal amount (together with
interest, if any, thereon accrued to such Repayment Date) shall, until paid,
bear interest from the Repayment Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in such
Security.
SECTION 1305. SECURITIES REPAID IN PART. Upon surrender of any
Registered Security which is to be repaid in part only, the Partnership shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge and at the expense of the Partnership, a new
Registered Security or Securities of the same series, of any authorized
denomination specified by the Holder, in an aggregate principal amount equal to
and in exchange for the portion of the principal of such Security so surrendered
which is not to be repaid.
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ARTICLE FOURTEEN - DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. APPLICABILITY OF ARTICLE: PARTNERSHIP'S OPTION TO EFFECT
DEFEASANCE OR COVENANT DEFEASANCE. If, pursuant to Section 301, provision is
made for either or both of (a) defeasance of the Securities of or within a
series under Section 1402 or (b) covenant defeasance of the Securities of or
within a series under Section 1403, then the provisions of such Section or
Sections, as the case may be, together with the other provisions of this Article
(with such modifications thereto as may be specified pursuant to Section 301
with respect to any Securities), shall be applicable to such Securities and any
coupons appertaining thereto, and the Partnership may at its option by Board
Resolution, at any time, with respect to such Securities and any coupons
appertaining thereto, elect to have Section 1402 (if applicable) or Section 1403
(if applicable) be applied to such Outstanding Securities and any coupons
appertaining thereto upon compliance with the conditions set forth below in this
Article.
SECTION 1402. DEFEASANCE AND DISCHARGE. Upon the Partnership's exercise
of the above option applicable to this Section with respect to any Securities of
or within a series, the Partnership shall be deemed to have been discharged from
its obligations with respect to such Outstanding Securities and any coupons
appertaining thereto on the date the conditions set forth in Section 1404 are
satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means
that the Partnership shall be deemed to have paid and discharged the entire
indebtedness represented by such Outstanding Securities and any coupons
appertaining thereto, which shall thereafter be deemed to be "Outstanding" only
for the purposes of Section 1405 and the other Sections of this Indenture
referred to in clauses (A) and (B) below, and to have satisfied all of its other
obligations under such Securities and any coupons appertaining thereto and this
Indenture insofar as such Securities and any coupons appertaining thereto are
concerned (and the Trustee, at the expense of the Partnership, shall execute
proper instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of such Outstanding Securities and any coupons appertaining thereto to
receive, solely from the trust fund described in Section 1404 and as more fully
set forth in such Section, payments in respect of the principal of (and premium
or Make-Whole Amount, if any) and interest, if any, on such Securities and any
coupons appertaining thereto when such payments are due, (B) the Partnership's
obligations with respect to such Securities under Sections 305, 306, 1002 and
1003 and with respect to the payment of Additional Amounts, if any, on such
Securities as contemplated by Section 1009, (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (D) this Article. Subject to
compliance with this Article Fourteen, the Partnership may exercise its option
under this Section notwithstanding the prior exercise of its option under
Section 1403 with respect to such Securities and any coupons appertaining
thereto.
SECTION 1403. COVENANT DEFEASANCE. Upon the Partnership's exercise of
the above option applicable to this Section with respect to any Securities of or
within a series, the Partnership shall be released from its obligations under
Sections 1004 to 1007, inclusive, and,
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if specified pursuant to Section 301, its obligations under any other covenant,
with respect to such Outstanding Securities and any coupons appertaining thereto
on and after the date the conditions set forth in Section 1404 are satisfied
(hereinafter, "covenant defeasance"), and such Securities and any coupons
appertaining thereto shall thereafter be deemed to be not "Outstanding" for the
purposes of any direction, waiver, consent or declaration or Act of Holders (and
the consequences of any thereof) in connection with Sections 1004 to 1007,
inclusive, or such other covenant, but shall continue to be deemed "Outstanding"
for all other purposes hereunder. For this purpose, such covenant defeasance
means that, with respect to such Outstanding Securities and any coupons
appertaining thereto, the Partnership may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
Section or such other covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such Section or such other covenant or by
reason of reference in any such Section or such other covenant to any other
provision herein or in any other document and such omission to comply shall not
constitute a default or an Event of Default under Section 501(4) or 501(8) or
otherwise, as the case may be, but, except as specified above, the remainder of
this Indenture and such Securities and any coupons appertaining thereto shall be
unaffected thereby.
SECTION 1404. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE. The
following shall be the conditions to application of Section 1402 or Section 1403
to any Outstanding Securities of or within a series and any coupons appertaining
thereto:
(a) The Partnership shall irrevocably have deposited or caused
to be deposited with the Trustee (or another trustee satisfying the requirements
of Section 607 who shall agree to comply with the provisions of this Article
Fourteen applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities and any coupons appertaining
thereto, (1) an amount in such currency, currencies or currency unit in which
such Securities and any coupons appertaining thereto are then specified as
payable at Stated Maturity, or (2) Government Obligations applicable to such
Securities and coupons appertaining thereto (determined on the basis of the
currency, currencies or currency unit in which such Securities and coupons
appertaining thereto are then specified as payable at Stated Maturity) which
through the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than the due date of any
payment of principal of (and premium or Make-Whole Amount, if any) and interest,
if any, on such Securities and any coupons appertaining thereto, money in an
amount, or (3) a combination thereof, in any case, in an amount, sufficient,
without consideration of any reinvestment of such principal and interest, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge, (i) the principal of (and premium or Make-Whole
Amount, if any) and interest, if any, on such Outstanding Securities and any
coupons appertaining thereto on the Stated Maturity of such principal or
installment of principal or interest and (ii) any mandatory sinking fund
payments
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or analogous payments applicable to such Outstanding Securities and any coupons
appertaining thereto on the day on which such payments are due and payable in
accordance with the terms of this Indenture and of such Securities and any
coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Partnership is a party
or by which it is bound.
(c) No Event of Default or event which with notice or lapse
of time or both would become an Event of Default with respect to such Securities
and any coupons appertaining thereto shall have occurred and be continuing on
the date of such deposit or, insofar as Sections 501(6) and 501(7) are
concerned, at any time during the period ending on the 91st day after the date
of such deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(d) In the case of an election under Section 1402, the
Partnership shall have delivered to the Trustee an Opinion of Counsel stating
that (i) the Partnership has received from, or there has been published by, the
Internal Revenue Service a ruling, or (ii) since the date of execution of this
Indenture, there has been a change in the applicable Federal income tax law, in
either case to the effect that, and based thereon such opinion shall confirm
that, the Holders of such Outstanding Securities and any coupons appertaining
thereto will not recognize income, gain or loss for Federal income tax purposes
as a result of such defeasance and will be subject to Federal income tax on the
same amounts, in the same manner and at the same times as would have been the
case if such defeasance had not occurred.
(e) In the case of an election under Section 1403, the
Partnership shall have delivered to the Trustee an Opinion of Counsel to the
effect that the Holders of such Outstanding Securities and any coupons
appertaining thereto will not recognize income, gain or loss for Federal income
tax purposes as a result of such covenant defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if such covenant defeasance had not occurred.
(f) The Partnership shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance under Section 1402 or the covenant
defeasance under Section 1403 (as the case may be) have been complied with and
an Opinion of Counsel to the effect that either (i) as a result of a deposit
pursuant to subsection (a) above and the related exercise of the Partnership's
option under Section 1402 or Section 1403 (as the case may be), registration is
not required under the Investment Company Act of 1940, as amended, by the
Partnership, with respect to the trust funds representing such deposit or by the
Trustee for such trust funds or (ii) all necessary registrations under said Act
have been effected.
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(g) Notwithstanding any other provisions of this Section,
such defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be imposed
on the Partnership in connection therewith pursuant to Section 301.
SECTION 1405. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS. Subject to the provisions of the last
paragraph of Section 1003, all money and Government Obligations (or other
property as may be provided pursuant to Section 301) (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this Section 1405, the "Trustee") pursuant to Section 1404 in
respect of any Outstanding Securities of any series and any coupons appertaining
thereto shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and any coupons appertaining thereto and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Partnership acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities and any coupons appertaining
thereto of all sums due and to become due thereon in respect of principal (and
premium or Make-Whole Amount, if any) and interest and Additional Amounts, if
any, but such money need not be segregated from other funds except to the extent
required by law.
Unless otherwise specified with respect to any Security pursuant to
Section 301, if, after a deposit referred to in Section 1404(a) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 301 or the terms of such
Security to receive payment in a currency or currency unit other than that in
which the deposit pursuant to Section 1404(a) has been made in respect of such
Security, or (b) a Conversion Event occurs in respect of the currency or
currency unit in which the deposit pursuant to Section 1404(a) has been made,
the indebtedness represented by such Security and any coupons appertaining
thereto shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of (and premium or Make-Whole
Amount, if any), and interest, if any, on such Security as the same becomes due
out of the proceeds yielded by converting (from time to time as specified below
in the case of any such election) the amount or other property deposited in
respect of such Security into the currency or currency unit in which such
Security becomes payable as a result of such election or Conversion Event based
on the applicable market exchange rate for such currency or currency unit in
effect on the second Business Day prior to each payment date, except, with
respect to a Conversion Event, for such currency or currency unit in effect (as
nearly as feasible) at the time of the Conversion Event.
The Partnership shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 1404 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of such Outstanding Securities and any coupons
appertaining thereto.
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Anything in this Article to the contrary notwithstanding, subject to
Section 606, the Trustee shall deliver or pay to the Partnership from time to
time upon Partnership Request any money or Government Obligations (or other
property and any proceeds therefrom) held by it as provided in Section 1404
which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect a defeasance or covenant defeasance, as applicable, in
accordance with this Article.
ARTICLE FIFTEEN - MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. PURPOSES FOR WHICH MEETINGS MAY BE CALLED. A meeting of
Holders of Securities of any series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 1502. CALL, NOTICE AND PLACE OF MEETINGS. (a) The Trustee may
at any time call a meeting of Holders of Securities of any series for any
purpose specified in Section 1501, to be held at such time and at such place as
the Trustee shall determine. Notice of every meeting of Holders of Securities of
any series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 106, not less than 20 nor more than 180 days prior to
the date fixed for the meeting.
(b) In case at any time the Partnership, pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified in
Section 1501, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within 20 days after receipt of
such request or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Partnership or the Holders of Securities of such
series in the amount above specified, as the case may be, may determine the time
and the place for such meeting and may call such meeting for such purposes by
giving notice thereof as provided in subsection (a) of this Section.
SECTION 1503. PERSONS ENTITLED TO VOTE AT MEETINGS. To be entitled to
vote at any meeting of Holders of Securities of any series, a Person shall be
(1) a Holder of one or more Outstanding Securities of such series, or (2) a
Person appointed by an instrument in writing as proxy for a Holder or Holders of
one or more Outstanding Securities of such series by such Holder or Holders. The
only Persons who shall be entitled to be present or to speak at any meeting of
Holders of Securities of any series shall be the Persons entitled to vote at
such
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meeting and their counsel, any representatives of the Trustee and its counsel
and any representatives of the Partnership and its counsel.
SECTION 1504. QUORUM; ACTION. The Persons entitled to vote a majority
in principal amount of the Outstanding Securities of a series shall constitute a
quorum for a meeting of Holders of Securities of such series; PROVIDED, HOWEVER,
that if any action is to be taken at such meeting with respect to a consent or
waiver which this Indenture expressly provides may be given by the Holders of
not less than a specified percentage in principal amount of the Outstanding
Securities of a series, the Persons entitled to vote such specified percentage
in principal amount of the Outstanding Securities of such series shall
constitute a quorum. In the absence of a quorum within 30 minutes after the time
appointed for any such meeting, the meeting shall, if convened at the request of
Holders of Securities of such series, be dissolved. In any other case the
meeting may be adjourned for a period of not less than 10 days as determined by
the chairman of the meeting prior to the adjournment of such meeting. In the
absence of a quorum at the reconvening of any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10
days; at the reconvening of any meeting adjourned or further adjourned for lack
of a quorum, the persons entitled to vote 25% in aggregate principal amount of
the then Outstanding Securities shall constitute a quorum for the taking of any
action set forth in the notice of the original meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in Section
1502(a), except that such notice need be given only once not less than five days
prior to the date on which the meeting is scheduled to be reconvened.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted by the affirmative vote of the persons
entitled to vote a majority in aggregate principal amount of the Outstanding
Securities represented at such meeting; PROVIDED, HOWEVER, that, except as
limited by the proviso to Section 902, any resolution with respect to any
request, demand, authorization, direction, notice, consent, waiver or other
action which this Indenture expressly provides may be made, given or taken by
the Holders of a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of a series may be adopted at a
meeting or an adjourned meeting duly reconvened and at which a quorum is present
as aforesaid by the affirmative vote of the Holders of such specified percentage
in principal amount of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504, if any
action is to be taken at a meeting of Holders of Securities of any series with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly
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provides may be made, given or taken by the Holders of a specified percentage in
principal amount of all Outstanding Securities affected thereby, or of the
Holders of such series and one or more additional series:
(i) there shall be no minimum quorum requirement for
such meeting; and
(ii) the principal amount of the Outstanding
Securities of such series that vote in favor of such request, demand,
authorization, direction, notice, consent, waiver or other action shall
be taken into account in determining whether such request, demand,
authorization, direction, notice, consent, waiver or other action has
been made, given or taken under this Indenture.
SECTION 1505. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT
OF MEETINGS. (a) Notwithstanding any provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104
or by having the signature of the Person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 104 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Partnership or by Holders of Securities as provided in Section 1502(b), in
which case the Partnership or the Holders of Securities of the series calling
the meeting, as the case may be, shall in like manner appoint a temporary
chairman. A permanent chairman and a permanent secretary of the meeting shall be
elected by vote of the Persons entitled to vote a majority in principal amount
of the Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series
or proxy shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.
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(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1502 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting, and the
meeting may be held as so adjourned without further notice.
SECTION 1506. COUNTING VOTES AND RECORDING ACTION OF MEETINGS. The vote
upon any resolution submitted to any meeting of Holders of Securities of any
series shall be by written ballots on which shall be subscribed the signatures
of the Holders of Securities of such series or of their representatives by proxy
and the principal amounts and serial numbers of the Outstanding Securities of
such series held or represented by them. The permanent chairman of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record, at least in duplicate, of the proceedings
of each meeting of Holders of Securities of any Series shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the fact, setting forth a
copy of the notice of the meeting and showing that said notice was given as
provided in Section 1502 and, if applicable, Section 1504. Each copy shall be
signed and verified by the affidavits of the permanent chairman and secretary of
the meeting and one such copy shall be delivered to the Partnership and another
to the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
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SIGNATURES AND SEALS
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed all as of the day and year first above written.
SUMMIT PROPERTIES PARTNERSHIP, L.P.
By: Summit Properties Inc., as General Partner
By: /s/ Michael L. Schwarz
-----------------------------------------------
Name: Michael L. Schwarz
Title: Executive Vice President
Attest:/s/ Michael G. Malone
--------------------------------------
Name: Michael G. Malone
Title: Senior Vice President
FIRST UNION NATIONAL BANK
as Trustee
By: /s/ Terry W. Baker
---------------------------------------------
Name: Terry W. Baker
Title: Vice President
Attest:/s/ Shannon Stahel
--------------------------------------
Name: Shannon Stahel
Title: Corporate Trust Officer
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ACKNOWLEDGMENT
STATE OF North Carolina ) ) ss:
COUNTY OF Mecklenburg )
On the 7th day of April 1997, before me personally came Michael L. Schwarz to
me known, who, being by me duly sworn, did depose and say that he/she resides at
2309 Coniston Place, Charlotte, NC that he/she is Executive Vice President of
Summit Properties Inc., the general partner of SUMMIT PROPERTIES PARTNERSHIP,
L.P., one of the parties described in and which executed the foregoing
instrument, and that he/she signed his/her name thereto by authority of the
Board of Directors of Summit Properties Inc., the general partner of Summit
Properties Partnership, L.P.
[Notarial Seal]
/s/ Judith M. Roller
- ------------------------------------
Notary Public: Judith M. Roller
Commission Expires: July 28, 1998
STATE OF North Carolina )
) ss:
COUNTY OF Mecklenburg )
On the 7th day of August 1997, before me personally came Terry W. Baker to
me known, who, being by me duly sworn, did depose and say that he/she resides at
4316 Applegate Rd, Charlotte, NC that he/she is a Vice President of FIRST UNION
NATIONAL BANK, one of the parties described in and which executed the foregoing
instrument, and that he/she signed his/her name thereto by authority of the
Board of Directors of First Union National Bank.
[Notarial Seal]
/s/ Calvin Dickerson
- ------------------------------------
Notary Public: Calvin Dickerson
Commission Expires: April 01, 2001
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EXHIBIT A
FORM OF REDEEMABLE OR NON-REDEEMABLE SENIOR SECURITY
[Face of Security]
[If the Holder of this Security (as indicated below) is The Depository Trust
Company ("DTC") or a nominee of DTC, this Security is a Global Security and the
following two legends apply:
Unless this Security is presented by an authorized representative of The
Depository Trust Company ("DTC"), 55 Water Street, New York, New York to the
issuer or its agent for registration of transfer, exchange or payment, and such
Security issued is registered in the name of CEDE & CO., or such other name as
requested by an authorized representative of DTC, ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, since the
registered owner hereof, CEDE & CO., has an interest herein.
Unless and until this Security is exchanged in whole or in part for Securities
in certificated form, this Security may not be transferred except as a whole by
DTC to a nominee thereof or by a nominee thereof to DTC or another nominee of
DTC or by DTC or any such nominee to a successor of DTC or a nominee of such
successor.]
[IF THIS SECURITY IS AN ORIGINAL ISSUE DISCOUNT SECURITY, INSERT -- FOR PURPOSES
OF SECTION 1273 and 1275 OF THE UNITED STATES INTERNAL REVENUE CODE, THE AMOUNT
OF ORIGINAL ISSUE DISCOUNT ON THIS SECURITY IS % OF ITS PRINCIPAL AMOUNT, THE
ISSUE DATE IS , 19 [AND] THE YIELD TO MATURITY IS %. [THE METHOD USED TO
DETERMINE THE AMOUNT OF ORIGINAL ISSUE DISCOUNT APPLICABLE TO THE SHORT ACCRUAL
PERIOD OF , 19 TO , 19 , IS % OF THE PRINCIPAL AMOUNT OF THIS
SECURITY.]
SUMMIT PROPERTIES PARTNERSHIP, L.P.
[Designation of Series]
No. $
SUMMIT PROPERTIES PARTNERSHIP, L.P., a Delaware limited partnership (herein
referred to as the "Partnership," which term includes any successor entity under
the Indenture referred to on the reverse hereof), for value received, hereby
promises to pay to or registered assigns the
principal sum of Dollars on (the "Stated Maturity
Date") [OR INSERT DATE FIXED FOR
A-1
<PAGE> 91
EARLIER REDEMPTION (the "Redemption Date," and together with the Stated Maturity
Date with respect to principal repayable on such date, the "Maturity Date.")]
[IF THE SECURITY IS TO BEAR INTEREST PRIOR TO MATURITY, INSERT -- and to pay
interest thereon from or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semi-annually on
and in each year (each, an "Interest Payment Date"),
commencing , at the rate of % per annum, until the principal hereof
is paid or duly provided for. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Holder in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the or (whether or
not a Business Day), as the case may be, next preceding such Interest Payment
Date [at the office or agency of the Partnership maintained for such purpose;
provided, however, that such interest may be paid, at the Partnership's option,
by mailing a check to such Holder at its registered address or by transfer of
funds to an account maintained by such Holder within the United States]. Any
such interest not so punctually paid or duly provided for shall forthwith cease
to be payable to the Holder on such Regular Record Date, and may be paid to the
Holder in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in the Indenture. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.]
[IF THE SECURITY IS NOT TO BEAR INTEREST PRIOR TO MATURITY, INSERT -- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at the
[Stated] Maturity Date and in such case the overdue principal of this Security
shall bear interest at the rate of % per annum (to the extent that the payment
of such interest shall be legally enforceable), which shall accrue from the date
of such default in payment to the date payment of such principal has been made
or duly provided for. Interest on any overdue principal shall be payable on
demand. Any such interest on any overdue principal that is not so paid on demand
shall bear interest at the rate of % per annum (to the extent that the payment
of such interest shall be legally enforceable), which shall accrue from the date
of such demand for payment to the date payment of such interest has been made or
duly provided for, and such interest shall also be payable on demand.]
The principal of this Security payable on the Stated Maturity Date [or the
principal of, premium or Make-Whole Amount, if any, and, if the Redemption Date
is not an Interest Payment Date, interest on this Security payable on the
Redemption Date] will be paid against presentation of this Security at the
office or agency of the Partnership maintained for that
A-2
<PAGE> 92
purpose in , in such coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
Interest payable on this Security on any Interest Payment Date and on the
[Stated] Maturity Date [or Redemption Date, as the case may be,] will include
interest accrued from and including the next preceding Interest Payment Date in
respect of which interest has been paid or duly provided for (or from and
including , if no interest has been paid on this Security) to but
excluding such Interest Payment Date or the [Stated] Maturity Date [or
Redemption Date, as the case may be.] If any Interest Payment Date or the
[Stated] Maturity Date or [Redemption Date] falls on a day that is not a
Business Day, as defined below, principal, premium or Make-Whole Amount, if any,
and/or interest payable with respect to such Interest Payment Date or [Stated]
Maturity Date [or Redemption Date, as the case may be,] will be paid on the next
succeeding Business Day with the same force and effect as if it were paid on the
date such payment was due, and no interest shall accrue on the amount so payable
for the period from and after such Interest Payment Date or [Stated] Maturity
Date [or Redemption Date, as the case may be.] "Business Day" means any day,
other than a Saturday or Sunday, on which banks in are not
required or authorized by law or executive order to close.
[IF THIS SECURITY IS A GLOBAL SECURITY, INSERT -- All payments of principal,
premium or Make-Whole Amount, if any, and interest in respect of this Security
will be made by the Partnership in immediately available funds.]
Reference is hereby made to the further provisions of this Security set forth on
the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the Certificate of Authentication hereon has been executed by the Trustee
by manual signature of one of its authorized signatories, this Security shall
not be entitled to any benefit under the Indenture, or be valid or obligatory
for any purpose.
A-3
<PAGE> 93
IN WITNESS WHEREOF, the Partnership has caused this instrument to be duly
executed under the facsimile corporate seal of its general partner.
Dated:_________________ SUMMIT PROPERTIES PARTNERSHIP, L.P.
By: Summit Properties Inc., as General Partner
By: __________________________________________
Name:
Title:
Attest:
____________________________
Name:
Secretary
A-4
<PAGE> 94
[Reverse of Security]
SUMMIT PROPERTIES PARTNERSHIP, L.P.
This Security is one of a duly authorized issue of securities of the Partnership
(herein called the "Securities"), issued and to be issued in one or more series
under an Indenture, dated as of August , 199 (herein called the "Indenture")
between the Partnership and First Union National Bank, as Trustee (herein called
the "Trustee," which term includes any successor trustee under the Indenture
with respect to the series of which this Security is a part), to which Indenture
and all indentures supplemental thereto reference is hereby made for a statement
of the respective rights, limitations of rights, duties and immunities
thereunder of the Partnership, the Trustee and the Holders of the Securities,
and of the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the duly authorized series of Securities
designated on the face hereof (collectively, the "Securities"), [IF APPLICABLE,
INSERT -- and the aggregate principal amount of the Securities to be issued
under such series is limited to $ (except for Securities authenticated and
delivered upon transfer of, or in exchange for, or in lieu of other
Securities).] All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.
[IF APPLICABLE, INSERT -- The Securities may not be redeemed prior to the Stated
Maturity Date.]
[IF APPLICABLE, INSERT -- The Securities are subject to redemption [ (l) (IF
APPLICABLE, INSERT -- on in any year commencing with the year and
ending with the year through operation of the sinking fund for this series
at a Redemption Price equal to 100% of the principal amount, and (2) ] [IF
APPLICABLE, INSERT -- at any time [on or after ], as a whole or in
part, at the election of the Partnership, at the following Redemption Prices
(expressed as percentages of the principal amount):
If redeemed on or before , % and if redeemed during the 12-month
period beginning of the years indicated at the Redemption Prices
indicated below.
Year Redemption Price Year Redemption Price
---- ---------------- ---- ----------------
and thereafter at a Redemption Price equal to % of the principal amount,
together in the case of any such redemption [IF APPLICABLE, INSERT -- (whether
through operation of the sinking fund
A-5
<PAGE> 95
or otherwise)] with accrued interest to the Redemption Date; PROVIDED, HOWEVER,
that installments of interest on this Security whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holder of this Security, or
one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[IF APPLICABLE, INSERT -- The Securities are subject to redemption (1)
on in any year commencing with the year and ending with the year
through operation of the sinking fund for this series at the Redemption
Prices for redemption through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below, and (2) at
any time [on or after ], as a whole or in part, at the election of the
Partnership, at the Redemption Prices for redemption otherwise than through
operation of the sinking fund (expressed as percentages of the principal amount)
set forth in the table below: If redeemed during the 12-month period beginning
of the years indicated,
<TABLE>
<CAPTION>
Redemption Price for Redemption Price for
Redemption Through Redemption Otherwise
Operation of the Than Through Operation
Year Sinking Fund of the Sinking Fund
---- ------------ -------------------
<S> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to % of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date;
PROVIDED, HOWEVER, that installments of interest on this Security whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holder of
this Security, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]
[IF APPLICABLE, INSERT -- Notwithstanding the foregoing, the
Partnership may not, prior to , redeem any Securities as contemplated by
[Clause (2) of] the preceding paragraph as a part of, or in anticipation of, any
refunding operation by the application, directly or indirectly, of moneys
borrowed having an interest cost to the Partnership (calculated in accordance
with generally accepted financial practice) of less than __% per annum.]
[IF APPLICABLE, INSERT -- The sinking fund for the Securities provides
for the redemption on in each year, beginning with the year and
ending with the year , of [not less than] $ ] [("mandatory sinking
fund") and not more than $ ] aggregate principal amount of the Securities.
[The Securities acquired or redeemed by the Partnership otherwise than through
[mandatory] sinking fund payments may be credited against subsequent [mandatory]
sinking fund payments otherwise required to be made in the [describe order]
order in which they become due.]]
A-6
<PAGE> 96
Notice of redemption will be given by mail to Holders of Securities,
not less than 30 nor more than 60 days prior to the Redemption Date, all as
provided in the Indenture.
In the event of redemption of this Security in part only, a new
Security or Securities for the unredeemed portion hereof shall be issued in the
name of the Holder hereof upon the cancellation hereof.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Partnership and the rights of the Holders of the Securities under the Indenture
at any time by the Partnership and the Trustee with the consent of the Holders
of not less than a majority of the aggregate principal amount of all Securities
issued under the Indenture at the time Outstanding and affected thereby. The
Indenture also contains provisions permitting the Holders of not less than a
majority of the aggregate principal amount of the Outstanding Securities, on
behalf of the Holders of all such Securities, to waive compliance by the
Partnership with certain provisions of the Indenture. Furthermore, provisions in
the Indenture permit the Holders of not less than a majority of the aggregate
principal amount, in certain instances, of the Outstanding Securities of any
series to waive, on behalf of all of the Holders of Securities of such series,
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and other
Securities issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Partnership,
which is absolute and unconditional, to pay the principal of (and premium or
Make-Whole Amount, if any) and interest on this Security at the times, places
and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
[and herein] set forth, the transfer of this Security is registrable in the
Security Register of the Partnership upon surrender of this Security for
registration of transfer at the office or agency of the Partnership in any place
where the principal of (and premium or Make-Whole Amount, if any) and interest
on this Security are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Partnership and the Security
Registrar duly executed by, the Holder hereof or by his attorney duly authorized
in writing, and thereupon one or more new Securities, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein
[and herein] set forth, this Security is exchangeable for a like aggregate
principal amount of Securities of
A-7
<PAGE> 97
different authorized denominations but otherwise having the same terms and
conditions, as requested by the Holder hereof surrendering the same.
The Securities of this series are issuable only in registered form
[without coupons] in denominations of $ and any integral multiple
thereof.
No service charge shall be made for any such registration of transfer
or exchange, but the Partnership may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Partnership, the Trustee and any agent of the Partnership or the Trustee may
treat the Person in whose name this Security is registered as the owner hereof
for all purposes, whether or not this Security be overdue, and neither the
Partnership, the Trustee nor any such agent shall be affected by notice to the
contrary.
Notwithstanding anything contained herein to the contrary, no recourse
under or upon any obligation, covenant or agreement contained in this Security,
or because of any indebtedness evidenced hereby, or for any claim based hereon
or otherwise in respect hereof, shall be had for the payment of the principal of
or premium or Make-Whole Amount, if any, or the interest on this Security, or
for any claim based hereon, or otherwise in respect hereof, or based on or in
respect of the Indenture or any indenture supplemental thereto, against (i) the
Company or any other past, present or future partner in the Partnership, (ii)
against any other Person which owns an interest, directly or indirectly, in any
partner of the Partnership or (iii) against any past, present or future
stockholder, employee, officer or director, as such, of the Company, or of any
successor, either directly or through the Partnership or the Company or any
successor, whether by virtue of any constitution, statute or rule of law or by
the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
The Indenture and the Securities shall be governed by and construed in
accordance with the laws of [the State of New York] applicable to agreements
made and to be performed entirely in such State.
A-8
<PAGE> 98
EXHIBIT B
FORMS OF CERTIFICATION
EXHIBIT B-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States Federal income taxation regardless of its source
("United States person(s)"), (ii) are owned by United States person(s) that are
(a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section
2.165-12(c)(1)(v) are herein referred to as "financial institutions") purchasing
for their own account or for resale, or (b) United States person(s) who acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions on
the date hereof (and in either case (a) or (b), each such United States
financial institution hereby agrees, on its own behalf or through its agent,
that you may advise Summit Properties Partnership, L.P. or its agent that such
financial institution will comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the United States Internal Revenue Code of 1986, as amended, and
the regulations thereunder), or (iii) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period (as
defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and, in addition, if the owner is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)), this is to further certify that such financial institution
has not acquired the Securities for purposes of resale directly or indirectly to
a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
B-1
<PAGE> 99
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the
above-captioned Securities held by you for our account in accordance with your
Operating Procedures if any applicable statement herein is not correct on such
date, and in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certificate excepts and does not relate to [U.S.$] of such
interest in the above-captioned Securities in respect of which we are not able
to certify and as to which we understand an exchange for an interest in a
permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until we
do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: ________________, ____
[To be dated no earlier than the 15th day prior to (i) the Exchange Date or (ii)
the relevant Interest Payment Date occurring prior to the Exchange Date, as
applicable]
[Name of Person Making Certification]
------------------------------------
(Authorized Signature)
Name:
Title:
B-2
<PAGE> 100
EXHIBIT B-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, based solely on written certifications that we
have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, [U.S.$] principal amount of
the above-captioned Securities (i) is owned by person(s) that are not citizens
or residents of the United States, domestic partnerships, domestic corporations
or any estate or trust the income of which is subject to United States Federal
income taxation regardless of its source ("United States person(s)"), (ii) is
owned by United States person(s) that are (a) foreign branches of United States
financial institutions (financial institutions, as defined in U.S. Treasury
Regulations Section 1.165-12(c)(1)(v) are herein referred to as "financial
institutions") purchasing for their own account or for resale, or (b) United
States person(s) who acquired the Securities through foreign branches of United
States financial institutions and who hold the Securities through such United
States financial institutions on the date hereof (and in either case (a) or (b),
each such financial institution has agreed, on its own behalf or through its
agent, that we may advise Summit Properties Partnership, L.P. or its agent that
such financial institution will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and
the regulations thereunder), or (iii) is owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period (as
defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and, to the further effect, that financial institutions described in clause
(iii) above (whether or not also described in clause (i) or (ii)) have certified
that they have not acquired the Securities for purposes of resale directly or
indirectly to a United States person or to a person within the United States or
its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "Possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary Global Security representing the above-captioned Securities excepted
in the above-referenced certificates of Member
B-3
<PAGE> 101
Organizations and (ii) as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion of the
part submitted herewith for exchange (or, if relevant, collection of any
interest) are no longer true and cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated:
[To be dated no earlier than the Exchange Date or the relevant Interest Payment
Date occurring prior to the Exchange Date, as applicable]
[Morgan Guaranty Trust Company of New York,
Brussels Office,] as Operator of the Euroclear
System [CEDEL S.A.]
By:______________________________________
B-4
<PAGE> 1
EXHIBIT 4.2
________________________________________________________________________________
SUMMIT PROPERTIES PARTNERSHIP, L.P.
Issuer
------
to
FIRST UNION NATIONAL BANK
Trustee
-------
_________________________
Form of Supplemental Indenture No. 1
Dated as of August 12, 1997
_________________________
$25,000,000
of
6.80% Notes due 2002
$50,000,000
of
6.95% Notes due 2004
and
$50,000,000
of
7.20% Notes due 2007
________________________________________________________________________________
<PAGE> 2
SUPPLEMENTAL INDENTURE NO. 1, dated as of August 12, 1997 (the
"Supplemental Indenture"), between SUMMIT PROPERTIES PARTNERSHIP, L.P., a
limited partnership organized under the laws of the State of Delaware (herein
called the "Partnership"), and First Union National Bank, a national banking
association organized under the laws of the United States of America, as Trustee
(herein called the "Trustee").
RECITALS OF THE PARTNERSHIP
The Partnership has heretofore delivered to the Trustee an
Indenture dated as of August 7, 1997 (the "Senior Indenture"), a form of which
has been filed with the Securities and Exchange Commission under the Securities
Act of 1933, as amended, as an exhibit to the Partnership's Registration
Statement on Form S-3 (Registration No. 333-25575), providing for the issuance
from time to time of Senior Debt Securities of the Partnership (the
"Securities").
Section 301 of the Senior Indenture provides for various
matters with respect to any series of Securities issued under the Senior
Indenture to be established in an indenture supplemental to the Senior
Indenture.
Section 901(7) of the Senior Indenture provides for the
Partnership and the Trustee to enter into an indenture supplemental to the
Senior Indenture to establish the form or terms of Securities of any series as
provided by Sections 201 and 301 of the Senior Indenture.
The Board of Directors of Summit Properties Inc., the general
partner of the Partnership, has duly adopted resolutions authorizing the
Partnership to execute and deliver this Supplemental Indenture.
All the conditions and requirements necessary to make this
Supplemental Indenture, when duly executed and delivered, a valid and binding
agreement in accordance with its terms and for the purposes herein expressed,
have been performed and fulfilled.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
each of the series of Securities provided for herein by the Holders thereof, it
is mutually covenanted and agreed, for the equal and proportionate benefit of
all Holders of the Notes or of either series thereof, as follows:
ARTICLE ONE
RELATION TO SENIOR INDENTURE; DEFINITIONS
-----------------------------------------
SECTION 1.1. RELATION TO SENIOR INDENTURE.
This Supplemental Indenture constitutes an integral part of
the Senior Indenture.
<PAGE> 3
SECTION 1.2. DEFINITIONS.
For all purposes of this Supplemental Indenture, except as
otherwise expressly provided for or unless the context otherwise requires:
(1) Capitalized terms used but not defined herein shall
have the respective meanings assigned to them in the Senior Indenture;
and
(2) All references herein to Articles and Sections, unless
otherwise specified, refer to the corresponding Articles and Sections
of this Supplemental Indenture.
"Acquired Indebtedness" means Indebtedness of a Person (i)
existing at the time such Person becomes a Subsidiary or (ii) assumed in
connection with the acquisition of assets from such Person, in each case, other
than Indebtedness incurred in connection with, or in contemplation of, such
Person becoming a Subsidiary or such acquisition. Acquired Indebtedness shall be
deemed to be incurred on the date of the related acquisition of assets from any
Person or the date the acquired Person becomes a Subsidiary.
"Annual Service Charge" for any period means the aggregate
interest expense for such period in respect of, and the amortization during such
period of any original issue discount of, Indebtedness of the Partnership and
its Subsidiaries and the amount of dividends which are payable during such
period in respect of any Disqualified Stock.
"Business Day" means any day, other than a Saturday or Sunday,
that is neither a legal holiday nor a day on which banking institutions in the
City of New York or in the City of Charlotte are authorized or required by law,
regulation or executive order to close.
"Capital Stock" means, with respect to any Person, any capital
stock (including preferred stock), shares, interests, participations or other
ownership interests (however designated) of such Person and any rights (other
than debt securities convertible into or exchangeable for corporate stock),
warrants or options to purchase any thereof.
"Consolidated Income Available for Debt Service" for any
period means Earnings from Operations of the Partnership and its Subsidiaries
plus amounts which have been deducted, and minus amounts which have been added,
for the following (without duplication): (i) interest on Indebtedness of the
Partnership and its Subsidiaries, (ii) provision for taxes of the Partnership
and its Subsidiaries based on income, (iii) amortization of debt discount, (iv)
provisions for gains and losses on properties and property depreciation and
amortization, (v) the effect of any noncash charge resulting from a change in
accounting principles in determining Earnings from Operations for such period
and (vi) amortization of deferred charges.
"Corporate Trust Office", including for purposes of the Place
of Payment provisions of Sections 305 and 1002 of the Senior Indenture, means
the office of the Trustee at which, at any particular time, its corporate trust
business shall be principally
2
<PAGE> 4
administered, which office at the date hereof is located at 230 South Tryon
Street, 9th floor, Charlotte, North Carolina 28288-1179.
"Disqualified Stock" means, with respect to any Person, any
Capital Stock of such Person which by the terms of such Capital Stock (or by the
terms of any security into which it is convertible or for which it is
exchangeable or exercisable), upon the happening of any event or otherwise (i)
matures or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise (other than Capital Stock which is redeemable solely in exchange for
common stock), (ii) is convertible into or exchangeable or exercisable for
Indebtedness or Disqualified Stock or (iii) is redeemable at the option of the
holder thereof, in whole or in part (other than Capital Stock which is
redeemable solely in exchange for Capital Stock which is not Disqualified Stock
or the redemption price of which may, at the option of such Person, be paid in
Capital Stock which is not Disqualified Stock), in each case on or prior to the
Stated Maturity of the Notes.
"Earnings from Operations" for any period means net earnings
excluding gains and losses on sales of investments, extraordinary items, and
property valuation losses, net as reflected in the financial statements of the
Partnership and its Subsidiaries for such period determined on a consolidated
basis in accordance with GAAP.
"Encumbrance" means any mortgage, lien, charge, pledge or
security interest of any kind.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder by the Commission.
"GAAP" means generally accepted accounting principles as used
in the United States applied on a consistent basis as in effect from time to
time; provided that solely for purposes of any calculation required by the
financial covenants contained herein, "GAAP" shall mean generally accepted
accounting principles as used in the United States on the date hereof, applied
on a consistent basis.
"Indebtedness" of the Partnership or any Subsidiary means any
indebtedness of the Partnership or any Subsidiary, whether or not contingent,
in respect of (i) borrowed money or evidenced by bonds, notes, debentures or
similar instruments whether or not such indebtedness is secured by any
Encumbrance existing on property owned by the Partnership or any Subsidiary,
(ii) indebtedness for borrowed money of a Person other than the Partnership or a
Subsidiary which is secured by any Encumbrance existing on property owned by the
Partnership or any Subsidiary, to the extent of the lesser of (x) the amount of
indebtedness so secured and (y) the fair market value of the property subject to
such Encumbrance, (iii) the reimbursement obligations, contingent or otherwise,
in connection with any letters of credit actually issued or amounts representing
the balance deferred and unpaid of the purchase price of any property or
services, except any such balance that constitutes an accrued expense or trade
payable, or all conditional sale obligations or obligations under any title
retention agreement, (iv) the principal amount of all obligations of the
Partnership or any Subsidiary with respect to redemption, repayment or other
repurchase of any Disqualified Stock, (v) any lease of property by the
Partnership or any Subsidiary as lessee which is reflected on the Partnership's
consolidated balance sheet as a capitalized lease in accordance with GAAP, or
(vi) interest rate swaps, caps or
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similar agreements and foreign exchange contracts, currency swaps or similar
agreements, to the extent, in the case of items of indebtedness under (i)
through (iii) above, that any such items (other than letters of credit) would
appear as a liability on the Partnership's consolidated balance sheet in
accordance with GAAP, and also includes, to the extent not otherwise included,
any obligations by the Partnership or any Subsidiary to be liable for, or to
pay, as obligor, guarantor or otherwise (other than for purposes of collection
in the ordinary course of business), Indebtedness of another Person (other than
the Partnership or any Subsidiary) (it being understood that Indebtedness shall
be deemed to be incurred by the Partnership or any Subsidiary whenever the
Partnership or such Subsidiary shall create, assume, guarantee or otherwise
become liable in respect thereof).
"Make-Whole Amount" means, in connection with any optional
redemption or accelerated payment of any 2002 Note, 2004 Note or 2007 Note, as
the case may be, 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 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 respective 2002
Note, 2004 Notes or 2007 Notes being redeemed or paid.
"Notes" has the meaning specified in Section 2.1 hereof.
"Reinvestment Rate" means .25% (twenty-five one hundredths of
one percent) plus the arithmetic mean of the yields under the respective
headings "This Week" and "Last Week" published in the Statistical Release under
the caption "Treasury Constant Maturities" for the maturity (rounded to the
nearest month) corresponding to the remaining life to maturity, as of the
payment date of the principal being redeemed or paid. If no maturity exactly
corresponds to such maturity, yields for the two published maturities most
closely corresponding to such maturity shall be calculated pursuant to the
immediately preceding sentence and the Reinvestment Rate shall be interpolated
or extrapolated from such yields on a straight-line basis, rounding in each of
such relevant periods to the nearest month. For such purposes of calculating the
Reinvestment Rate, the most recent Statistical Release published prior to the
date of determination of the Make-Whole Amount shall be used.
"Statistical Release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by the
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 of the
Make-Whole Amount, then such other reasonably comparable index which shall be
designated by the Partnership.
"Subsidiary" means, with respect to any Person, any
corporation or other entity of which a majority of (i) the voting power of the
voting equity securities or (ii) the
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outstanding equity interests of which are owned, directly or indirectly, by such
Person. For the purposes of this definition, "voting equity securities" means
equity securities having voting power for the election of directors, whether at
all times or only so long as no senior class of security has such voting power
by reason of any contingency.
"Total Assets" as of any date means the sum of (i) the
Undepreciated Real Estate Assets and (ii) all other assets of the Partnership
and its Subsidiaries determined in accordance with GAAP (but excluding accounts
receivable and intangibles).
"Total Unencumbered Assets" means the sum of (i) those
Undepreciated Real Estate Assets not subject to an Encumbrance for borrowed
money and (ii) all other assets of the Partnership and its Subsidiaries not
subject to an Encumbrance for borrowed money, determined in accordance with GAAP
(but excluding accounts receivable and intangibles).
"2002 Notes" has the meaning specified in Section 2.1 hereof.
"2004 Notes" has the meaning specified in Section 2.1 hereof.
"2007 Notes" has the meaning specified in Section 2.1 hereof.
"Undepreciated Real Estate Assets" as of any date means the
cost (original cost plus capital improvements) of real estate assets of the
Partnership and its Subsidiaries on such date, before depreciation and
amortization, determined on a consolidated basis in accordance with GAAP.
"Unsecured Indebtedness" means Indebtedness which is not
secured by any Encumbrance upon any of the properties of the Partnership or any
Subsidiary.
ARTICLE TWO
THE SERIES OF NOTES
SECTION 2.1. TITLE OF THE SECURITIES.
There shall be a series of Securities designated the "6.80%
Notes due 2002" (the "2002 Notes"), a series of Securities designated the "6.95%
Notes due 2004" (the "2004 Notes") and a series of Securities designated the
"7.20% Notes due 2007" (the "2007 Notes" and, together with the 2002 and 2004
Notes, the "Notes").
SECTION 2.2. LIMITATION ON AGGREGATE PRINCIPAL AMOUNT.
The aggregate principal amount of the 2002 Notes shall be
limited to $25,000,000, and, except as provided in this Section and in Section
306 of the Senior Indenture, the Partnership shall not execute and the Trustee
shall not authenticate or deliver 2002 Notes in excess of such aggregate
principal amount.
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The aggregate principal amount of the 2004 Notes shall be
limited to $50,000,000, and, except as provided in this Section and in Section
306 of the Senior Indenture, the Partnership shall not execute and the Trustee
shall not authenticate or deliver 2004 Notes in excess of such aggregate
principal amount.
The aggregate principal amount of the 2007 Notes shall be
limited to $50,000,000, and, except as provided in this Section and in Section
306 of the Senior Indenture, the Partnership shall not execute and the Trustee
shall not authenticate or deliver 2007 Notes in excess of such aggregate
principal amount.
Nothing contained in this Section 2.2 or elsewhere in this
Supplemental Indenture, or in the Notes, is intended to or shall limit execution
by the Partnership or authentication or delivery by the Trustee of Notes under
the circumstances contemplated by Sections 303, 304, 305, 306, 906, 1107 and
1305 of the Senior Indenture.
SECTION 2.3. INTEREST AND INTEREST RATES; MATURITY DATE OF
NOTES.
The 2002 Notes will bear interest at a rate of 6.80% per
annum, the 2004 Notes will bear interest at a rate of 6.95% per annum and the
2007 Notes will bear interest at a rate of 7.20% per annum, in each case, from
August 12, 1997 or from the immediately preceding Interest Payment Date to
which interest has been paid or duly provided for, payable semi-annually in
arrears on February 15 and August 15 of each year, commencing February 15, 1998
(each, an "Interest Payment Date"), to the Person in whose name such Note is
registered at the close of business on February 1 or August 1 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date
(each, a "Regular Record Date"). Interest will be computed on the basis of a
360-day year comprised of twelve 30-day months. The interest so payable on any
Note which is not punctually paid or duly provided for on any Interest Payment
Date shall forthwith cease to be payable to the Person in whose name such Note
is registered on the relevant Regular Record Date, and such defaulted interest
shall instead be payable to the Person in whose name such Note is registered on
the Special Record Date or other specified date determined in accordance with
the Senior Indenture.
If any Interest Payment Date or Maturity falls on a day that
is not a Business Day, the required payment shall be made on the next Business
Day as if it were made on the date such payment was due and no interest shall
accrue on the amount so payable for the period from and after such Interest
Payment Date or Maturity, as the case may be.
The 2002 Notes will mature on August 15, 2002, the 2004 Notes
will mature on August 15, 2004 and the 2007 Notes will mature on August 15,
2007.
SECTION 2.4. LIMITATIONS ON INCURRENCE OF INDEBTEDNESS.
(a) The Partnership will not, and will not permit any
Subsidiary to, incur any Indebtedness if, immediately after giving effect to the
incurrence of such additional Indebtedness and the application of the proceeds
thereof, the aggregate principal amount of all outstanding Indebtedness of the
Partnership and its Subsidiaries on a consolidated basis determined in
accordance with GAAP is greater than 60% of the sum of
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(without duplication) (i) the Total Assets of the Partnership and its
Subsidiaries as of the end of the calendar quarter covered in the Partnership's
Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be,
most recently filed with the Commission (or, if such filing is not permitted
under the Exchange Act, with the Trustee) prior to the incurrence of such
additional Indebtedness and (ii) the purchase price of any real estate assets or
mortgages receivable acquired, and the amount of any securities offering
proceeds received (to the extent such proceeds were not used to acquire real
estate assets or mortgages receivable or used to reduce Indebtedness), by the
Partnership or any Subsidiary since the end of such calendar quarter, including
those proceeds obtained in connection with the incurrence of such additional
Indebtedness.
(b) In addition to the limitation set forth in subsection
(a) of this Section 2.4, the Partnership will not, and will not permit any
Subsidiary to, incur any Indebtedness if the ratio of Consolidated Income
Available for Debt Service to the Annual Service Charge for the four consecutive
fiscal quarters most recently ended prior to the date on which such additional
Indebtedness is to be incurred shall have been less than 1.5:1, on a pro forma
basis after giving effect thereto and to the application of the proceeds
therefrom, and calculated on the assumption that (i) such Indebtedness and any
other Indebtedness incurred by the Partnership and its Subsidiaries since the
first day of such four-quarter period and the application of the proceeds
therefrom, including to refinance other Indebtedness, had occurred at the
beginning of such period; (ii) the repayment or retirement of any other
Indebtedness by the Partnership and its Subsidiaries since the first day of such
four-quarter period had been repaid or retired at the beginning of such period
(except that, in making such computation, the amount of Indebtedness under any
revolving credit facility shall be computed based upon the average daily balance
of such Indebtedness during such period); (iii) in the case of Acquired
Indebtedness or Indebtedness incurred in connection with any acquisition since
the first day of such four-quarter period, the related acquisition had occurred
as of the first day of such period with the appropriate adjustments with respect
to such acquisition being included in such pro forma calculation; and (iv) in
the case of any acquisition or disposition by the Partnership or its
Subsidiaries of any asset or group of assets since the first day of such
four-quarter period, whether by merger, stock purchase or sale, or asset
purchase or sale, such acquisition or disposition or any related repayment of
Indebtedness had occurred as of the first day of such period with the
appropriate adjustments with respect to such acquisition or disposition being
included in such pro forma calculation.
(c) In addition to the limitations set forth in subsections
(a) and (b) of this Section 2.4, the Partnership will not, and will not permit
any Subsidiary to, incur any Indebtedness secured by any Encumbrance upon any of
the property of the Partnership or any Subsidiary if, immediately after giving
effect to the incurrence of such additional Indebtedness and the application of
the proceeds thereof, the aggregate principal amount of all outstanding
Indebtedness of the Partnership and its Subsidiaries on a consolidated basis
which is secured by any Encumbrance on property of the Partnership or any
Subsidiary is greater than 40% of the sum of (without duplication) (i) the Total
Assets of the Partnership and its Subsidiaries as of the end of the calendar
quarter covered in the Partnership's Annual Report on Form 10-K or Quarterly
Report on Form 10-Q, as the case may be, most recently filed with the Commission
(or, if such filing is not permitted under the Exchange Act, with the Trustee)
prior to the incurrence of such additional Indebtedness and (ii) the purchase
price of any real estate assets or mortgages receivable acquired, and
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the amount of any securities offering proceeds received (to the extent that such
proceeds were not used to acquire real estate assets or mortgages receivable or
used to reduce Indebtedness), by the Partnership or any Subsidiary since the end
of such calendar quarter, including those proceeds obtained in connection with
the incurrence of such additional Indebtedness.
(d) The Partnership and its Subsidiaries may not at any
time own Total Unencumbered Assets equal to less than 150% of the aggregate
outstanding principal amount of the Unsecured Indebtedness of the Partnership
and its Subsidiaries on a consolidated basis.
(e) For purposes of this Section 2.4, Indebtedness shall be
deemed to be "incurred" by the Partnership or a Subsidiary whenever the
Partnership or such Subsidiary shall create, assume, guarantee or otherwise
become liable in respect thereof.
SECTION 2.5. REDEMPTION.
The Notes may be redeemed at any time at the option of the
Partnership, in whole or in part, at a redemption price equal to the sum of (i)
the principal amount of the Notes being redeemed plus accrued interest thereon
to the Redemption Date and (ii) the Make-Whole Amount, if any, with respect to
such Notes (the "Redemption Price").
SECTION 2.6. PLACES OF PAYMENT.
The Places of Payment where the Notes may be presented or
surrendered for payment, where the Notes may be surrendered for registration of
transfer or exchange and where notices and demands to and upon the Partnership
in respect of the Notes and the Senior Indenture may be served shall be in the
City of Charlotte, North Carolina and the office or agency for such purpose
shall initially be located at c/o First Union National Bank, Corporate Trust
Department, 230 South Tryon Street, 9th floor, Charlotte, North Carolina
28288-1179.
SECTION 2.7. METHOD OF PAYMENT.
Payment of the principal of and interest on the Notes will be
made at the office or agency of the Partnership maintained for that purpose in
the City of Charlotte, North Carolina (which shall initially be an office or
agency of the Trustee), in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts; PROVIDED, HOWEVER, that at the option of the Partnership, payments of
principal and interest on the Notes (other than payments of principal and
interest due at Maturity) may be made (i) by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register or
(ii) by wire transfer to an account maintained by the Person entitled thereto
located within the United States.
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SECTION 2.8. CURRENCY.
Principal and interest on the Notes shall be payable in
Dollars.
SECTION 2.9. REGISTERED SECURITIES; GLOBAL FORM.
The Notes shall be issuable and transferable in fully
registered form as Registered Securities, without coupons. The 2002 Notes, the
2004 Notes and the 2007 Notes shall each be issued in the form of one or more
permanent Global Securities. The depository for the Notes shall be The
Depository Trust Partnership ("DTC"). The Notes shall not be issuable in
definitive form except as provided in Section 305 of the Senior Indenture.
SECTION 2.10. FORM OF NOTES.
The 2002 Notes shall be substantially in the form attached as
Exhibit A hereto. The 2004 Notes shall be substantially in the form attached as
Exhibit B hereto. The 2007 Note shall be substantially in the form attached as
Exhibit C hereto.
SECTION 2.11. REGISTRAR AND PAYING AGENT.
The Trustee shall initially serve as Security Registrar and
Paying Agent for the Notes.
SECTION 2.12. DEFEASANCE.
The provisions of Sections 1402 and 1403 of the Senior
Indenture, together with the other provisions of Article Fourteen of the Senior
Indenture, shall be applicable to the Notes. The provisions of Section 1403 of
the Senior Indenture shall apply to the covenants set forth in Sections 2.4 and
2.15 of this Supplemental Indenture and to those covenants specified in Section
1403 of the Senior Indenture.
SECTION 2.13. EVENTS OF DEFAULT
The provisions of clause (5) of Section 501 of the Senior
Indenture as applicable with respect to the Notes shall be deemed to be amended
and restated in their entirety to read as follows:
(5) default under any bond, debenture, note, mortgage,
indenture or instrument under which there may be issued or by which there may be
secured or evidenced any indebtedness for money borrowed by the Partnership (or
by any Subsidiary, the repayment of which the Partnership has guaranteed or for
which the Partnership is directly responsible or liable as obligor or
guarantor), having an aggregate principal amount outstanding of at least
$10,000,000, whether such indebtedness now exists or shall hereafter be created,
which default shall have resulted in such indebtedness becoming or being
declared due and payable prior to the date on which it would otherwise have
become due and payable, without such indebtedness having been discharged, or
such acceleration having been rescinded or annulled, within a period of 10 days
after there shall have been given written notice, by registered or certified
mail, to the Partnership by the Trustee or to
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the Partnership and the Trustee by the Holders of at least 10% in principal
amount of the Outstanding Securities of that series a written notice specifying
such default and requiring the Partnership to cause such indebtedness to be
discharged or cause such acceleration to be rescinded or annulled and stating
that such notice is a "Notice of Default" hereunder; or
The provisions of Section 501 of the Senior Indenture as
applicable with respect to the Notes shall be further deemed to be amended by
renumbering existing clause (8) to be clause (9) and by adding the following new
clause (8):
(8) the entry by a court of competent jurisdiction of one
or more judgments, orders or decrees against the Partnership or any of its
Subsidiaries in an aggregate amount (excluding amounts covered by insurance) in
excess of $10,000,000 and such judgements, orders or decrees remain
undischarged, unstayed and unsatisfied in an aggregate amount (excluding amounts
covered by insurance) in excess of $10,000,000 for a period of 30 consecutive
days; or
SECTION 2.14. ACCELERATION OF MATURITY; RESCISSION AND
ANNULMENT.
The provisions of the first paragraph of Section 502 of the
Senior Indenture as applicable with respect to the Notes shall be deemed to be
amended and restated in their entirety to read as follows:
If an Event of Default with respect to Securities of any
series at the time Outstanding occurs and is continuing, then in every such case
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal (or, if any
Securities are Original Issue Discount Securities or Indexed Securities, such
portion of the principal as may be specified in the terms thereof) of, and the
Make-Whole Amount, if any, on, all the Securities of that series to be due and
payable immediately, by a notice in writing to the Partnership (and to the
Trustee if given by the Holders), plus accrued interest to the date the
Securities of that series are paid, and upon any such declaration such principal
or specified portion thereof shall become immediately due and payable. With
respect to the Securities of any series, if an Event of Default set forth in
Section 501(6) of the Senior Indenture occurs and is continuing, then in every
such case all the Securities of that series shall become immediately due and
payable, without notice to the Partnership, at the principal amount thereof (or,
if any Securities are Original Issue Discount Securities or Indexed Securities,
such portion of the principal as may be specified in the terms thereof) plus
accrued interest to the date the Securities of that series are paid plus the
Make-Whole Amount, if any, on the Securities of that series.
SECTION 2.15. PROVISION OF FINANCIAL INFORMATION.
Whether or not the Partnership is subject to Section 13 or
15(d) of the Exchange Act, the Partnership will, to the extent permitted under
the Exchange Act, file with the Commission the annual reports, quarterly reports
and other documents which the Partnership would have been required to file with
the Commission pursuant to such Section 13 or 15(d) if the Partnership were so
subject, such documents to be filed with the Commission on or prior to the
respective dates (the "Required Filing Dates") by which the
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Partnership would have been required so to file such documents if the
Partnership were so subject.
The Partnership will also in any event (x) within 15 days of
each Required Filing Date (i) if the Partnership is not then subject to Section
13 or 15(d) of the Exchange Act, transmit by mail to all Holders, as their names
and addresses appear in the Security Register, without cost to such Holders,
copies of the annual reports and quarterly reports which the Partnership would
have been required to file with the Commission pursuant to Section 13 or 15(d)
of the Exchange Act if the Partnership were subject to such Sections, and (ii)
file with the Trustee copies of annual reports, quarterly reports and other
documents which the Partnership would have been required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act if the
Partnership were subject to such Sections and (y) if filing such documents by
the Partnership with the Commission is not permitted under the Exchange Act,
promptly upon written request and payment of the reasonable cost of duplication
and delivery, supply copies of such documents to any prospective Holder.
SECTION 2.16. WAIVER OF CERTAIN COVENANTS.
Notwithstanding the provisions of Section 1010 of the Senior
Indenture, the Partnership may omit in any particular instance to comply with
any term, provision or condition set forth in Sections 1004 to 1007, inclusive,
of the Senior Indenture, with Sections 2.4 and 2.15 of this Supplemental
Indenture and with any other term, provision or condition with respect to the
Notes or either series thereof (except any such term, provision or condition
which could not be amended without the consent of all Holders of the Notes or
such series thereof, as applicable), if before or after the time for such
compliance the Holders of at least a majority in principal amount of all
outstanding Notes or such series thereof, as applicable, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such covenant or condition. Except to the extent so expressly waived, and until
such waiver shall become effective, the obligations of the Partnership and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 3.1. RATIFICATION OF SENIOR INDENTURE.
Except as expressly modified or amended hereby, the Senior
Indenture continues in full force and effect and is in all respects confirmed
and preserved.
SECTION 3.2. GOVERNING LAW.
This Supplemental Indenture and each Note shall be governed by
and construed in accordance with the laws of the State of New York. This
Supplemental Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, and shall, to the extent applicable, be governed by such
provisions.
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SECTION 3.3. COUNTERPARTS.
This Supplemental Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed by their respective officers
hereunto duly authorized, all as of the day and year first written above.
SUMMIT PROPERTIES PARTNERSHIP, L.P.
By: Summit Properties, Inc.,
its general partner
By:_________________________________
Name:
Title:
FIRST UNION NATIONAL BANK,
as Trustee
By:_________________________________
Name:
Title:
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EXHIBIT A
FORM OF SENIOR SECURITY
[Face of Security]
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSI-
TORY TRUST COMPANY ("DTC"), 55 WATER STREET, NEW YORK, NEW YORK TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND SUCH SECURITY
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO 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, SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING SET FORTH IN THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF DTC OR A NOMINEE OF
DTC. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC TO A
NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC
OR ITS NOMINEE TO A SUCCESSOR DEPOSITORY OR ITS NOMINEE.
SUMMIT PROPERTIES PARTNERSHIP, L.P.
6.80% Notes Due 2002
Register No. 1 Principal Amount
CUSIP No. 86623WAC9 $25,000,000
SUMMIT PROPERTIES PARTNERSHIP, L.P., a Delaware limited partnership (herein
referred to as the "Partnership", which term includes any successor entity under
the Indenture referred to on the reverse hereof), for value received, hereby
promises to pay to Cede & Co. or registered assigns the principal sum of
$25,000,000 Dollars on August 15, 2002 (the "Stated Maturity Date") or earlier
at the option of the Partnership (the "Redemption Date", and together with the
Stated Maturity Date with respect to principal repayable on such date, the
"Maturity Date") and to pay interest thereon from August 12, 1997 or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on August 15 and February 15 in each year (each, an
"Interest Payment Date"), commencing February 15, 1998, at the rate of 6.80% per
annum, until the
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principal hereof is paid or duly provided for. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Holder in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the August 1 or
February 1 (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date at the office or agency of the Partnership maintained
for such purpose; PROVIDED, HOWEVER, that such interest may be paid, at the
Partnership's option, by mailing a check to such Holder at its registered
address or by wire transfer of funds to an account maintained by such Holder
within the United States. 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 be paid to the Holder in whose name this Security (or one
or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or may be paid
at any time in any other lawful manner not inconsistent with the requirements
of any securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture. Interest will be computed on the basis of a 360-day
year of twelve 30-day months.
The principal of this Security payable on the Stated Maturity Date or the
principal of, Make-Whole Amount, if any, and, if the Redemption Date is not an
Interest Payment Date, interest on this Security payable on the Redemption Date
will be paid against presentation of this Security at the office or agency of
the Partnership maintained for that purpose in the City of Charlotte, North
Carolina, in such coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest payable on this Security on any Interest Payment Date and on the Stated
Maturity Date or Redemption Date, as the case may be, will include interest
accrued from and including the next preceding Interest Payment Date in respect
of which interest has been paid or duly provided for (or from and including
August 12, 1997, if no interest has been paid on this Security) to but excluding
such Interest Payment Date or the Stated Maturity Date or Redemption Date, as
the case may be. If any Interest Payment Date or the Stated Maturity Date or
Redemption Date falls on a day that is not a Business Day, as defined below,
principal, Make-Whole Amount, if any, and/or interest payable with respect to
such Interest Payment Date or Stated Maturity or Redemption Date, as the case
may be, will be paid on the next succeeding Business Day with the same force and
effect as if it were paid on the date such payment was due, and no interest
shall accrue on the amount so payable for the period from and after such
Interest Payment Date or Stated Maturity Date or Redemption Date, as the case
may be. "Business Day" means any day, other than a
A-2
<PAGE> 17
Saturday or Sunday, that is neither a legal holiday nor a day on which banking
institutions in the City of New York or in the City of Charlotte are authorized
by law, regulation or executive order to close.
All payments of principal, Make-Whole Amount, if any, and interest in respect of
this Security will be made by the Partnership in immediately available funds.
Reference is hereby made to the further provisions of this Security set forth on
the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Pursuant to a recommendation promulgated by the Committee on Uniform Security
Identification Procedures, the Partnership has caused "CUSIP" numbers to be
printed on the Securities of this series as a convenience to the Holders of such
Securities. No representation is made as to the correctness or accuracy of such
CUSIP numbers as printed on the Securities, and reliance may be placed only on
the other identification numbers printed hereon.
Unless the Certificate of Authentication hereon has been executed by the Trustee
by manual signature of one of its authorized signatories, this Security shall
not be entitled to any benefit under the Indenture, or be valid or obligatory
for any purpose.
A-3
<PAGE> 18
IN WITNESS WHEREOF, the Partnership has caused this instrument to be duly
executed under the facsimile corporate seal of its general partner.
Dated: August 12, 1997 SUMMIT PROPERTIES
PARTNERSHIP, L.P.
By: Summit Properties Inc., as General
Partner
By:______________________________________
William F. Paulsen
President and Chief Executive
Officer
Attest:
__________________________________
Michael G. Malone
Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of Securities of the series designated therein referred to
in the within-mentioned Indenture.
FIRST UNION NATIONAL BANK,
as Trustee
By:_______________________
Authorized Signatory
A-4
<PAGE> 19
[Reverse of Security]
SUMMIT PROPERTIES PARTNERSHIP, L.P.
This Security is one of a duly authorized issue of securities of the Partnership
(herein called the "Securities"), issued and to be issued in one or more series
under an Indenture, dated as of August 7, 1997, as supplemented by Supplemental
Indenture No. 1, dated as of August 12, 1997 (as so supplemented, herein called
the "Indenture") between the Partnership and First Union National Bank, as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture with respect to the series of which this Security is a
part), to which Indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Partnership, the Trustee and the Holders
of the Securities, and of the terms upon which the Securities are, and are to
be, authenticated and delivered. This Security is one of the duly authorized
series of Securities designated on the face hereof (collectively, the
"Securities"), and the aggregate principal amount of the Securities to be issued
under such series as limited to $25,000,000 (except for Securities authenticated
and delivered upon transfer of, or in exchange for, or in lieu of other
Securities). All capitalized terms used in this Security which are defined in
the Indenture shall have the meanings assigned to them in the Indenture.
If an Event of Default with respect to the Securities, as defined in the
Indenture, shall occur and be continuing, the principal of the Securities of
this series may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Securities are subject to redemption at any time, as a whole or in part, at
the election of the Partnership, at a Redemption Price equal to the sum of (i)
the principal amount of the Securities being redeemed plus accrued interest
thereon to the Redemption Date and (ii) the Make-Whole Amount, if any, with
respect to such Securities.
Notice of redemption will be given by mail to Holders of Securities, not less
than 30 nor more than 60 days prior to the Redemption Date, all as provided in
the Indenture.
The Indenture contains provisions for defeasance at any time of (a) the entire
indebtedness of the Partnership on this Security and (b) certain restrictive
covenants and the related defaults and Events of Default applicable to the
Partnership, in each case, upon compliance by the Partnership with certain
conditions set forth in the Indenture, which provisions apply to this Security.
A-5
<PAGE> 20
In the event of redemption of this Security in part only, a new Security or
Securities for the unredeemed portion hereof shall be issued in the name of the
Holder hereof upon the cancellation hereof.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Partnership and the rights of the Holders of the Securities under the Indenture
at any time by the Partnership and the Trustee with the consent of the Holders
of not less than a majority of the aggregate principal amount of all Securities
issued under the Indenture at the time Outstanding and affected thereby. The
Indenture also contains provisions permitting the Holders of not less than a
majority of the aggregate principal amount of the Outstanding Securities, on
behalf of the Holders of all such Securities, to waive compliance by the
Partnership with certain provisions of the Indenture. Furthermore, provisions in
the Indenture permit the Holders of not less than a majority of the aggregate
principal amount, in certain instances, of the Outstanding Securities of any
series to waive, on behalf of all of the Holders of Securities of such series,
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and other
Securities issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
No reference herein to the Indenture and no provision of this Security or of the
Indenture shall alter or impair the obligation of the Partnership, which is
absolute and unconditional, to pay the principal of (and Make-Whole Amount, if
any) and interest on this Security at the times, places and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register of
the Partnership upon surrender of this Security for registration of transfer at
the office or agency of the Partnership in any place where the principal of (and
Make-Whole Amount, if any) and interest on this Security are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Partnership and the Security Registrar duly executed by, the
Holder hereof or by his attorney duly authorized in writing, and thereupon one
or more new Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein set
forth, this Security is exchangeable for a like aggregate principal amount of
Securities of different authorized denominations but otherwise having the same
terms and conditions, as requested by the Holder hereof surrendering the same.
A-6
<PAGE> 21
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof.
No service charge shall be made for any such registration of transfer or
exchange, but the Partnership may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Partnership, the Trustee and any agent of the Partnership or the Trustee may
treat the Person in whose name this Security is registered as the owner hereof
for all purposes, whether or not this Security be overdue, and neither the
Partnership, the Trustee nor any such agent shall be affected by notice to the
contrary.
Notwithstanding anything contained herein to the contrary, no recourse under or
upon any obligation, covenant or agreement contained in the Indenture or in this
Security, or because of any indebtedness evidenced hereby or thereby, or for any
claim based thereon or otherwise in respect hereof, shall be had for the payment
of the principal of or Make-Whole Amount, if any, or the interest on this
Security, or for any claim based hereon, or otherwise in respect hereof, or
based on or in respect of the Indenture or any indenture supplemental thereto,
against (i) the Company or any other past, present or future partner in the
Partnership, (ii) against any other Person which owns an interest, directly or
indirectly, in any partner of the Partnership or (iii) against any past, present
or future stockholder, employee, officer or director, as such, of the Company,
or of any successor, either directly or through the Partnership or the Company
or any successor, under any rule of law, statute or constitutional provision or
by the enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being, by the acceptance hereof and as part of the
consideration for the issue hereof, expressly waived and released.
The Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed entirely in such State.
A-7
<PAGE> 22
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
______________________________
...............................................
______________________________
................................................................................
(Please Print or Typewrite Name and Address including
Zip Code of Assignee)
................................................................................
the within Security of Summit Properties Partnership, L.P. and hereby does
irrevocably constitute and appoint
....................................................................... Attorney
to transfer said Security on the books of the within-named Partnership with full
power of substitution in the premises.
Dated:.................... ..........................................
..........................................
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Security in every particular, without
alteration or enlargement or any change whatever.
A-8
<PAGE> 23
EXHIBIT B
FORM OF SENIOR SECURITY
[Face of Security]
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSI-
TORY TRUST COMPANY ("DTC"), 55 WATER STREET, NEW YORK, NEW YORK TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND SUCH SECURITY
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO 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, SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING SET FORTH IN THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF DTC OR A NOMINEE OF
DTC. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC TO A
NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC
OR ITS NOMINEE TO A SUCCESSOR DEPOSITORY OR ITS NOMINEE.
SUMMIT PROPERTIES PARTNERSHIP, L.P.
6.95% Notes Due 2004
Register No. 1 Principal Amount
CUSIP No. 86623WAA3 $50,000,000
SUMMIT PROPERTIES PARTNERSHIP, L.P., a Delaware limited partnership (herein
referred to as the "Partnership", which term includes any successor entity under
the Indenture referred to on the reverse hereof), for value received, hereby
promises to pay to Cede & Co. or registered assigns the principal sum of
$50,000,000 Dollars on August 15, 2004 (the "Stated Maturity Date") or earlier
at the option of the Partnership (the "Redemption Date", and together with the
Stated Maturity Date with respect to principal repayable on such date, the
"Maturity Date") and to pay interest thereon from August 12, 1997 or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on August 15 and February 15 in each year (each, an
"Interest Payment Date"), commencing February 15, 1998, at the rate of 6.95% per
annum, until the
B-1
<PAGE> 24
principal hereof is paid or duly provided for. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as pro-
vided in such Indenture, be paid to the Holder in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest, which shall be the August 1 or
February 1 (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date at the office or agency of the Partnership maintained
for such purpose; PROVIDED, HOWEVER, that such interest may be paid, at the
Partnership's option, by mailing a check to such Holder at its registered
address or by wire transfer of funds to an account maintained by such Holder
within the United States. 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 be paid to the Holder in whose name this Security (or one
or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or may be paid
at any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture. Interest will be computed on the basis of a 360-day
year of twelve 30-day months.
The principal of this Security payable on the Stated Maturity Date or the
principal of, Make-Whole Amount, if any, and, if the Redemption Date is not an
Interest Payment Date, interest on this Security payable on the Redemption Date
will be paid against presentation of this Security at the office or agency of
the Partnership maintained for that purpose in the City of Charlotte, North
Carolina, in such coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest payable on this Security on any Interest Payment Date and on the Stated
Maturity Date or Redemption Date, as the case may be, will include interest
accrued from and including the next preceding Interest Payment Date in respect
of which interest has been paid or duly provided for (or from and including
August 12, 1997, if no interest has been paid on this Security) to but excluding
such Interest Payment Date or the Stated Maturity Date or Redemption Date, as
the case may be. If any Interest Payment Date or the Stated Maturity Date or
Redemption Date falls on a day that is not a Business Day, as defined below,
principal, Make-Whole Amount, if any, and/or interest payable with respect to
such Interest Payment Date or Stated Maturity or Redemption Date, as the case
may be, will be paid on the next succeeding Business Day with the same force and
effect as if it were paid on the date such payment was due, and no interest
shall accrue on the amount so payable for the period from and after such
Interest Payment Date or Stated Maturity Date or Redemption Date, as the case
may be. "Business Day" means any day, other than a
B-2
<PAGE> 25
Saturday or Sunday, that is neither a legal holiday nor a day on which banking
institutions in the City of New York or in the City of Charlotte are authorized
by law, regulation or executive order to close.
All payments of principal, Make-Whole Amount, if any, and interest in respect of
this Security will be made by the Partnership in immediately available funds.
Reference is hereby made to the further provisions of this Security set forth on
the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Pursuant to a recommendation promulgated by the Committee on Uniform Security
Identification Procedures, the Partnership has caused "CUSIP" numbers to be
printed on the Securities of this series as a convenience to the Holders of such
Securities. No representation is made as to the correctness or accuracy of such
CUSIP numbers as printed on the Securities, and reliance may be placed only on
the other identification numbers printed hereon.
Unless the Certificate of Authentication hereon has been executed by the Trustee
by manual signature of one of its authorized signatories, this Security shall
not be entitled to any benefit under the Indenture, or be valid or obligatory
for any purpose.
B-3
<PAGE> 26
IN WITNESS WHEREOF, the Partnership has caused this instrument to be duly
executed under the facsimile corporate seal of its general partner.
Dated: August 12, 1997 SUMMIT PROPERTIES
PARTNERSHIP, L.P.
By: Summit Properties Inc., as General
Partner
By: ____________________________________
William F. Paulsen
President and Chief Executive
Officer
Attest:
_____________________________
Michael G. Malone
Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of Securities of the series designated therein referred to
in the within-mentioned Indenture.
FIRST UNION NATIONAL BANK,
as Trustee
By:_______________________
Authorized Signatory
B-4
<PAGE> 27
[Reverse of Security]
SUMMIT PROPERTIES PARTNERSHIP, L.P.
This Security is one of a duly authorized issue of securities of the Partnership
(herein called the "Securities"), issued and to be issued in one or more series
under an Indenture, dated as of August 7, 1997, as supplemented by Supplemental
Indenture No. 1, dated as of August 12, 1997 (as so supplemented, herein called
the "Indenture") between the Partnership and First Union National Bank, as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture with respect to the series of which this Security is a
part), to which Indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Partnership, the Trustee and the Holders
of the Securities, and of the terms upon which the Securities are, and are to
be, authenticated and delivered. This Security is one of the duly authorized
series of Securities designated on the face hereof (collectively, the
"Securities"), and the aggregate principal amount of the Securities to be issued
under such series as limited to $50,000,000 (except for Securities authenticated
and delivered upon transfer of, or in exchange for, or in lieu of other
Securities). All capitalized terms used in this Security which are defined in
the Indenture shall have the meanings assigned to them in the Indenture.
If an Event of Default with respect to the Securities, as defined in the
Indenture, shall occur and be continuing, the principal of the Securities of
this series may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Securities are subject to redemption at any time, as a whole or in part, at
the election of the Partnership, at a Redemption Price equal to the sum of (i)
the principal amount of the Securities being redeemed plus accrued interest
thereon to the Redemption Date and (ii) the Make-Whole Amount, if any, with
respect to such Securities.
Notice of redemption will be given by mail to Holders of Securities, not less
than 30 nor more than 60 days prior to the Redemption Date, all as provided in
the Indenture.
The Indenture contains provisions for defeasance at any time of (a) the entire
indebtedness of the Partnership on this Security and (b) certain restrictive
covenants and the related defaults and Events of Default applicable to the
Partnership, in each case, upon compliance by the Partnership with certain
conditions set forth in the Indenture, which provisions apply to this Security.
B-5
<PAGE> 28
In the event of redemption of this Security in part only, a new Security or
Securities for the unredeemed portion hereof shall be issued in the name of the
Holder hereof upon the cancellation hereof.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Partnership and the rights of the Holders of the Securities under the Indenture
at any time by the Partnership and the Trustee with the consent of the Holders
of not less than a majority of the aggregate principal amount of all Securities
issued under the Indenture at the time Outstanding and affected thereby. The
Indenture also contains provisions permitting the Holders of not less than a
majority of the aggregate principal amount of the Outstanding Securities, on
behalf of the Holders of all such Securities, to waive compliance by the
Partnership with certain provisions of the Indenture. Furthermore, provisions in
the Indenture permit the Holders of not less than a majority of the aggregate
principal amount, in certain instances, of the Outstanding Securities of any
series to waive, on behalf of all of the Holders of Securities of such series,
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and other
Securities issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
No reference herein to the Indenture and no provision of this Security or of the
Indenture shall alter or impair the obligation of the Partnership, which is
absolute and unconditional, to pay the principal of (and Make-Whole Amount, if
any) and interest on this Security at the times, places and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register of
the Partnership upon surrender of this Security for registration of transfer at
the office or agency of the Partnership in any place where the principal of (and
Make-Whole Amount, if any) and interest on this Security are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Partnership and the Security Registrar duly executed by, the
Holder hereof or by his attorney duly authorized in writing, and thereupon one
or more new Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein set
forth, this Security is exchangeable for a like aggregate principal amount of
Securities of different authorized denominations but otherwise having the same
terms and conditions, as requested by the Holder hereof surrendering the same.
B-6
<PAGE> 29
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof.
No service charge shall be made for any such registration of transfer or
exchange, but the Partnership may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Partnership, the Trustee and any agent of the Partnership or the Trustee may
treat the Person in whose name this Security is registered as the owner hereof
for all purposes, whether or not this Security be overdue, and neither the
Partnership, the Trustee nor any such agent shall be affected by notice to the
contrary.
Notwithstanding anything contained herein to the contrary, no recourse under or
upon any obligation, covenant or agreement contained in the Indenture or in this
Security, or because of any indebtedness evidenced hereby or thereby, or for any
claim based thereon or otherwise in respect hereof, shall be had for the payment
of the principal of or Make-Whole Amount, if any, or the interest on this
Security, or for any claim based hereon, or otherwise in respect hereof, or
based on or in respect of the Indenture or any indenture supplemental thereto,
against (i) the Company or any other past, present or future partner in the
Partnership, (ii) against any other Person which owns an interest, directly or
indirectly, in any partner of the Partnership or (iii) against any past, present
or future stockholder, employee, officer or director, as such, of the Company,
or of any successor, either directly or through the Partnership or the Company
or any successor, under any rule of law, statute or constitutional provision or
by the enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being, by the acceptance hereof and as part of the
consideration for the issue hereof, expressly waived and released.
The Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed entirely in such State.
B-7
<PAGE> 30
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
______________________________
..............................................
______________________________
................................................................................
(Please Print or Typewrite Name and Address including
Zip Code of Assignee)
................................................................................
the within Security of Summit Properties Partnership, L.P. and hereby does
irrevocably constitute and appoint
....................................................................... Attorney
to transfer said Security on the books of the within-named Partnership with full
power of substitution in the premises.
Dated:.................... ..........................................
..........................................
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Security in every particular, without
alteration or enlargement or any change whatever.
B-8
<PAGE> 31
EXHIBIT C
FORM OF SENIOR SECURITY
[Face of Security]
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSI-
TORY TRUST COMPANY ("DTC"), 55 WATER STREET, NEW YORK, NEW YORK TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND SUCH SECURITY
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO 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, SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING SET FORTH IN THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF DTC OR A NOMINEE OF
DTC. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC TO A
NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC
OR ITS NOMINEE TO A SUCCESSOR DEPOSITORY OR ITS NOMINEE.
SUMMIT PROPERTIES PARTNERSHIP, L.P.
7.20% Notes Due 2007
Register No. 1 Principal Amount
CUSIP No. 86623WAB1 $50,000,000
SUMMIT PROPERTIES PARTNERSHIP, L.P., a Delaware limited partnership (herein
referred to as the "Partnership", which term includes any successor entity under
the Indenture referred to on the reverse hereof), for value received, hereby
promises to pay to Cede & Co. or registered assigns the principal sum of
$50,000,000 Dollars on August 15, 2007 (the "Stated Maturity Date") or earlier
at the option of the Partnership (the "Redemption Date", and together with the
Stated Maturity Date with respect to principal repayable on such date, the
"Maturity Date") and to pay interest thereon from August 12, 1997 or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on August 15 and February 15 in each year (each, an
"Interest Payment Date"), commencing February 15, 1998, at the rate of 7.20% per
annum, until the
C-1
<PAGE> 32
principal hereof is paid or duly provided for. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as pro-
vided in such Indenture, be paid to the Holder in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest, which shall be the August 1 or
February 1 (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date at the office or agency of the Partnership maintained
for such purpose; PROVIDED, HOWEVER, that such interest may be paid, at the
Partnership's option, by mailing a check to such Holder at its registered
address or by wire transfer of funds to an account maintained by such Holder
within the United States. 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 be paid to the Holder in whose name this Security (or one
or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or may be paid
at any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture. Interest will be computed on the basis of a 360-day
year of twelve 30-day months.
The principal of this Security payable on the Stated Maturity Date or the
principal of, Make-Whole Amount, if any, and, if the Redemption Date is not an
Interest Payment Date, interest on this Security payable on the Redemption Date
will be paid against presentation of this Security at the office or agency of
the Partnership maintained for that purpose in the City of Charlotte, North
Carolina, in such coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest payable on this Security on any Interest Payment Date and on the Stated
Maturity Date or Redemption Date, as the case may be, will include interest
accrued from and including the next preceding Interest Payment Date in respect
of which interest has been paid or duly provided for (or from and including
August 12, 1997, if no interest has been paid on this Security) to but excluding
such Interest Payment Date or the Stated Maturity Date or Redemption Date, as
the case may be. If any Interest Payment Date or the Stated Maturity Date or
Redemption Date falls on a day that is not a Business Day, as defined below,
principal, Make-Whole Amount, if any, and/or interest payable with respect to
such Interest Payment Date or Stated Maturity or Redemption Date, as the case
may be, will be paid on the next succeeding Business Day with the same force and
effect as if it were paid on the date such payment was due, and no interest
shall accrue on the amount so payable for the period from and after such
Interest Payment Date or Stated Maturity Date or Redemption Date, as the case
may be. "Business Day" means any day, other than a
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<PAGE> 33
Saturday or Sunday, that is neither a legal holiday nor a day on which banking
institutions in the City of New York or in the City of Charlotte are authorized
by law, regulation or executive order to close.
All payments of principal, Make-Whole Amount, if any, and interest in respect of
this Security will be made by the Partnership in immediately available funds.
Reference is hereby made to the further provisions of this Security set forth on
the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Pursuant to a recommendation promulgated by the Committee on Uniform Security
Identification Procedures, the Partnership has caused "CUSIP" numbers to be
printed on the Securities of this series as a convenience to the Holders of such
Securities. No representation is made as to the correctness or accuracy of such
CUSIP numbers as printed on the Securities, and reliance may be placed only on
the other identification numbers printed hereon.
Unless the Certificate of Authentication hereon has been executed by the Trustee
by manual signature of one of its authorized signatories, this Security shall
not be entitled to any benefit under the Indenture, or be valid or obligatory
for any purpose.
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<PAGE> 34
IN WITNESS WHEREOF, the Partnership has caused this instrument to be duly
executed under the facsimile corporate seal of its general partner.
Dated: August 12, 1997 SUMMIT PROPERTIES
PARTNERSHIP, L.P.
By: Summit Properties Inc., as General
Partner
By: ____________________________________
William F. Paulsen
President and Chief Executive
Officer
Attest:
___________________________
Michael G. Malone
Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of Securities of the series designated therein referred to
in the within-mentioned Indenture.
FIRST UNION NATIONAL BANK,
as Trustee
By:_______________________
Authorized Signatory
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<PAGE> 35
[Reverse of Security]
SUMMIT PROPERTIES PARTNERSHIP, L.P.
This Security is one of a duly authorized issue of securities of the Partnership
(herein called the "Securities"), issued and to be issued in one or more series
under an Indenture, dated as of August 7, 1997, as supplemented by Supplemental
Indenture No. 1, dated as of August 12, 1997 (as so supplemented, herein called
the "Indenture") between the Partnership and First Union National Bank, as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture with respect to the series of which this Security is a
part), to which Indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Partnership, the Trustee and the Holders
of the Securities, and of the terms upon which the Securities are, and are to
be, authenticated and delivered. This Security is one of the duly authorized
series of Securities designated on the face hereof (collectively, the
"Securities"), and the aggregate principal amount of the Securities to be issued
under such series as limited to $50,000,000 (except for Securities authenticated
and delivered upon transfer of, or in exchange for, or in lieu of other
Securities). All capitalized terms used in this Security which are defined in
the Indenture shall have the meanings assigned to them in the Indenture.
If an Event of Default with respect to the Securities, as defined in the
Indenture, shall occur and be continuing, the principal of the Securities of
this series may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Securities are subject to redemption at any time, as a whole or in part, at
the election of the Partnership, at a Redemption Price equal to the sum of (i)
the principal amount of the Securities being redeemed plus accrued interest
thereon to the Redemption Date and (ii) the Make-Whole Amount, if any, with
respect to such Securities.
Notice of redemption will be given by mail to Holders of Securities, not less
than 30 nor more than 60 days prior to the Redemption Date, all as provided in
the Indenture.
The Indenture contains provisions for defeasance at any time of (a) the entire
indebtedness of the Partnership on this Security and (b) certain restrictive
covenants and the related defaults and Events of Default applicable to the
Partnership, in each case, upon compliance by the Partnership with certain
conditions set forth in the Indenture, which provisions apply to this Security.
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<PAGE> 36
In the event of redemption of this Security in part only, a new Security or
Securities for the unredeemed portion hereof shall be issued in the name of the
Holder hereof upon the cancellation hereof.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Partnership and the rights of the Holders of the Securities under the Indenture
at any time by the Partnership and the Trustee with the consent of the Holders
of not less than a majority of the aggregate principal amount of all Securities
issued under the Indenture at the time Outstanding and affected thereby. The
Indenture also contains provisions permitting the Holders of not less than a
majority of the aggregate principal amount of the Outstanding Securities, on
behalf of the Holders of all such Securities, to waive compliance by the
Partnership with certain provisions of the Indenture. Furthermore, provisions in
the Indenture permit the Holders of not less than a majority of the aggregate
principal amount, in certain instances, of the Outstanding Securities of any
series to waive, on behalf of all of the Holders of Securities of such series,
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and other
Securities issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
No reference herein to the Indenture and no provision of this Security or of the
Indenture shall alter or impair the obligation of the Partnership, which is
absolute and unconditional, to pay the principal of (and Make-Whole Amount, if
any) and interest on this Security at the times, places and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register of
the Partnership upon surrender of this Security for registration of transfer at
the office or agency of the Partnership in any place where the principal of (and
Make-Whole Amount, if any) and interest on this Security are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Partnership and the Security Registrar duly executed by, the
Holder hereof or by his attorney duly authorized in writing, and thereupon one
or more new Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein set
forth, this Security is exchangeable for a like aggregate principal amount of
Securities of different authorized denominations but otherwise having the same
terms and conditions, as requested by the Holder hereof surrendering the same.
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<PAGE> 37
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof.
No service charge shall be made for any such registration of transfer or
exchange, but the Partnership may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Partnership, the Trustee and any agent of the Partnership or the Trustee may
treat the Person in whose name this Security is registered as the owner hereof
for all purposes, whether or not this Security be overdue, and neither the
Partnership, the Trustee nor any such agent shall be affected by notice to the
contrary.
Notwithstanding anything contained herein to the contrary, no recourse under or
upon any obligation, covenant or agreement contained in the Indenture or in this
Security, or because of any indebtedness evidenced hereby or thereby, or for any
claim based thereon or otherwise in respect hereof, shall be had for the payment
of the principal of or Make-Whole Amount, if any, or the interest on this
Security, or for any claim based hereon, or otherwise in respect hereof, or
based on or in respect of the Indenture or any indenture supplemental thereto,
against (i) the Company or any other past, present or future partner in the
Partnership, (ii) against any other Person which owns an interest, directly or
indirectly, in any partner of the Partnership or (iii) against any past, present
or future stockholder, employee, officer or director, as such, of the Company,
or of any successor, either directly or through the Partnership or the Company
or any successor, under any rule of law, statute or constitutional provision or
by the enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being, by the acceptance hereof and as part of the
consideration for the issue hereof, expressly waived and released.
The Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed entirely in such State.
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<PAGE> 38
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
_____________________________
...............................................
_____________________________
................................................................................
(Please Print or Typewrite Name and Address including
Zip Code of Assignee)
................................................................................
the within Security of Summit Properties Partnership, L.P. and hereby does
irrevocably constitute and appoint
....................................................................... Attorney
to transfer said Security on the books of the within-named Partnership with full
power of substitution in the premises.
Dated:.................... ..........................................
..........................................
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Security in every particular, without
alteration or enlargement or any change whatever.
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