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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): May 29, 1998
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
On May 29, 1998, Summit Properties Partnership, L.P. a Delaware limited
partnership (the "Partnership"), commenced a Medium-Term Note Program (the
"Program") which provides that the Partnership may offer and sell from time to
time its Medium-Term Notes due Nine Months or More from Date of Issue in an
aggregate principal amount of up to $95,000,000 (the "MTNs") as described in the
Partnership's Prospectus Supplement dated May 29, 1998 to the Partnership's
Prospectus dated July 29, 1997. The Partnership's Prospectus Supplement was
filed with the Securities Exchange Commission under Rule 424(b)(3) on May 29,
1998. The MTNs will be issued pursuant to the Partnership's existing shelf
registration statement (Registration No. 333-25575).
The MTNs will be offered and sold by J.P. Morgan Securities Inc., First Union
Capital Markets, a division of Wheat First Securities, Inc., Merrill Lynch &
Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley & Co.
Incorporated as Agents for the Partnership (the "Agents") pursuant to that
certain Distribution Agreement among the Partnership, Summit Properties Inc.
(the "Company") and the Agents dated May 29, 1998. The MTNs will be issued under
an Indenture between the Company and First Union National Bank, as trustee (the
"Trustee").
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Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
(a) Financial Statements of Business Acquired: Not Applicable
(b) Pro Forma Financial Information: Not Applicable
(c) Exhibits:
1.1 Distribution Agreement among the Partnership,
the Company, and the Agents, dated May 29, 1998,
relating to the MTNs.
4.1 Indenture, dated as of August 7, 1997, between the
Partnership and the Trustee (incorporated by
reference to the Form 8-K filed by the Partnership on
August 11, 1997 (File No. 0-22411)).
4.2 Supplemental Indenture No. 3 dated as of May 29, 1998
between the Partnership and the Trustee including a
form of Floating Rate Medium-Term Note and a form of
Fixed Rate Medium-Term Note.
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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: June 2, 1998 By: /s/ Michael L. Schwarz
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Michael L. Schwarz
Executive Vice President
Chief Financial Officer
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DISTRIBUTION AGREEMENT
SUMMIT PROPERTIES PARTNERSHIP, L.P.
$95,000,000
MEDIUM-TERM NOTES
Due 9 months or more from Date of Issue
Distribution Agreement
May 29, 1998
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
First Union Capital Markets, a division
of Wheat First Securities, Inc.
301 S. College Street, 10th Floor
One First Union Center
Charlotte, North Carolina 28288
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center - North Tower
New York, New York 10281
Morgan Stanley & Co. Incorporated
1585 Broadway, 2nd Floor
New York, New York 10036
Ladies and Gentlemen:
Summit Properties Partnership, L.P., a Delaware limited partnership
(the "Partnership"), confirms its agreement with each of you with respect to the
issue and sale from time to time by the Partnership of its Medium-Term Notes due
9 months or more from date of issue (the "Securities") in an aggregate initial
offering price of up to $95,000,000 (or the equivalent thereof in one or more
foreign currencies or composite currencies), as such amount shall be reduced by
the aggregate initial offering price of any other debt securities issued by the
Partnership, whether within or without the United States ("Other Securities")
pursuant to the
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registration statement referred to below, and agrees with each of you
(individually an "Agent", and collectively, the "Agents", which term shall
include any additional agents appointed pursuant to Section 13 hereof) as set
forth in this Agreement. The Securities will be issued under an indenture dated
as of August 7, 1997, as supplemented by Supplemental Indenture No. 3 dated May
___, 1998 (together, the "Indenture") between the Partnership and First Union
National Bank, as Trustee (the "Trustee"). The Securities shall have the
maturities, interest rates, redemption provisions, if any, and other terms set
forth in the Prospectus referred to below as it may be amended or supplemented
from time to time. The Securities will be issued, and the terms and rights
thereof established, from time to time by the Partnership in accordance with the
Indenture.
On the basis of the representations and warranties herein contained,
but subject to the terms and conditions stated herein and to the reservation by
the Partnership of the right to sell Securities directly to investors (other
than broker-dealers) on its own behalf, the Partnership hereby (i) appoints the
Agents as the exclusive agents of the Partnership for the purpose of soliciting
and receiving offers to purchase Securities from the Partnership by others
pursuant to Section 2(a) hereof and (ii) agrees that, except as otherwise
contemplated herein, whenever it determines to sell Securities directly to any
Agent as principal, it will enter into a separate agreement (each such agreement
a "Terms Agreement"), substantially in the form of Exhibit A hereto, relating to
such sale in accordance with Section 2(b) hereof.
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 333-25575) 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 pursuant to Rule
424 under the Securities Act a prospectus supplement describing certain terms of
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". If the
Partnership and the Company have filed an abbreviated registration statement
pursuant to Rule 462(b) under the Securities Act (the "Rule 462 Registration
Statement"), then any reference herein to the term "Registration Statement"
shall be deemed to include such Rule 462 Registration Statement. 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
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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, including any supplement to the Prospectus that
sets forth only the terms of a particular issue of the Securities (a "Pricing
Supplement"), 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.
1. Representations. The Partnership and the Company each
jointly and severally represents and warrants to, and agrees with, each Agent as
of the Commencement Date (as hereinafter defined), as of each date on which the
Company accepts an offer to purchase Securities (including any purchase by an
Agent as principal pursuant to a Terms Agreement or otherwise), as of each date
the Partnership issues and sells Securities and as of each date the Registration
Statement or the Prospectus is amended or supplemented, as follows (it being
understood that such representations and warranties shall be deemed to relate to
the Registration Statement, the Basic Prospectus and the Prospectus, each as
amended or supplemented to each such date):
(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 applicable) 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 or supplement 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, except 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 Agent
furnished to the Partnership and/or the Company in writing by such
Agent expressly for use therein;
(b) the documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Securities Act or the Exchange Act, as applicable, and none of such
documents contained an untrue statement of a material fact
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or omitted to state a 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 any further documents
so filed and incorporated by reference in the Prospectus, or any
further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the Securities
Act or the Exchange Act, as applicable, and will not contain an untrue
statement of a material fact or omit to state a 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;
(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 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
incorporated 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) 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 or
operations of the Company and its Subsidiaries taken as a whole from
that set forth in the Prospectus;
(f) 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
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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;
(g) 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 I attached
hereto;
(h) 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 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 proceeding
therefore may be bought;
(i) 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 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 I attached hereto; 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 indebtedness of the Company or any of its subsidiaries and
described in the Prospectus;
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(j) except as disclosed in the Registration Statement, the
Company has no material subsidiaries;
(k) 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;
(l) the authorized capital stock conforms, as to legal
matters, to the description thereof contained in the Prospectus;
(m) 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 qualified under the Trust Indenture Act and, when
Supplemental Indenture No. 3 is 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 conforms to the descriptions thereof
in the Prospectus;
(n) 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
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violations and defaults which individually or in the aggregate would
not have a material adverse effect on the condition, financial or
otherwise, or earnings, business affairs or business prospects of the
Company and its Subsidiaries taken as a whole; 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, 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 offer and sale of the Securities 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;
(o) 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;
(p) 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");
(q) 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
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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 II attached hereto;
(r) 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 posses 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;
(s) 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;
and none of the Company or any Subsidiary has received any notice of
any proceeding relating to revocation or modification of any such
license, permit, certificate, consent, order, approval or other
authorization, except as described in the Prospectus and except, in
each case, where such revocation or modification would not, singly or
in the aggregate, have a material adverse effect on the Company and its
Subsidiaries taken as a whole; and the Company and each Subsidiary are
in compliance with all laws, rules and regulations relating to the
conduct of their respective businesses as conducted as of the date
hereof, except where noncompliance with such laws, rules or regulations
would not, singly or in the aggregate, have a material adverse effect
on the Company and its Subsidiaries taken as a whole;
(t) 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;
(u) 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;
(v) (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 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 interfere with the use made and proposed to be made of such
Community by the Company and by its Subsidiaries; (ii) the
construction, management and operation of the buildings, fixtures and
other improvements comprising the Communities as currently
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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
construction, 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;
(w) 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;
(x) 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;
(y) 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;
(z) 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
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Subsidiaries which are likely to have a material adverse effect on the
Company and its Subsidiaries taken as a whole;
(aa) 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;
(ab) there are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or
operating expenditures required for cleanup, 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;
(ac) 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;
(ad) the assets of the Partnership do not constitute "plan
assets" under ERISA;
(ae) 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
10
<PAGE> 11
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;
(af) 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
(ag) 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 Agent 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 the Agent participating in
such offering as to the matters covered thereby on the date of such
certificate.
2. Solicitations as Agent; Purchases as Principal. (a)
Solicitations as Agent. On the basis of the representations and warranties
herein contained, but subject to the terms and conditions herein set forth, each
of the Agents hereby severally and not jointly agrees, as agent of the
Partnership, to use its reasonable efforts to solicit offers to purchase the
Securities from the Partnership upon the terms and conditions set forth in the
Prospectus as amended or supplemented from time to time. So long as this
Agreement shall remain in effect with respect to any Agent, the Partnership
shall not, without the consent of such Agent, solicit or accept offers to
purchase, or sell, Securities or any other debt securities with a maturity at
the time of original issuance of 9 months to 30 years except pursuant to this
Agreement and any Terms Agreement, or except pursuant to a private placement not
constituting a public offering under the Securities Act or except in connection
with a firm commitment underwriting pursuant to an underwriting agreement that
does not provide for a continuous offering of medium-term debt securities.
However, the Partnership reserves the right to sell, and may solicit and accept
offers to purchase, Securities directly on its own behalf to investors (other
than broker-dealers).
The Partnership reserves the right, in its sole discretion, to
instruct the Agents to suspend at any time, for any period of time or
permanently, the solicitation of offers to purchase Securities. Upon receipt of
at least one business day's prior notice from the Partnership or the Company,
each Agent will suspend solicitation of offers to purchase Securities from the
Partnership until such time as the Partnership or the Company has advised such
Agent or Agents that such solicitation may be resumed. During the period of time
that such solicitation is suspended, the Partnership and the Company shall not
be required to deliver any opinions, letters or certificates in accordance with
Sections 4(i), 4(j) and 4(k) hereof, provided that if the Registration Statement
or Prospectus is amended or supplemented during the period of suspension (other
than by an amendment or supplement providing solely for a change in the interest
rates, redemption provisions, amortization schedules or maturities offered for
the Securities or for a change that the Agents deem to be immaterial), no Agent
shall be required to resume soliciting offers to purchase Securities until the
Partnership and/or the Company has delivered such opinions, letters and
certificates as such Agent may reasonably request.
The Partnership agrees to pay each Agent, as consideration for
the sale of each Security pursuant to this Agreement resulting from a
solicitation made or an offer to purchase
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<PAGE> 12
received by such Agent, a commission in the form of a discount from the purchase
price of such Security in an amount equal to the following applicable percentage
of the principal amount of such Security sold:
Range of Maturities
-------------------
<TABLE>
<CAPTION>
(percentage of aggregate
Commission principal amount
of Securities sold)
-------------------
<S> <C> <C>
From 9 months to less than 1 year..................................... .125%
From 1 year to less than 18 months.................................... .150%
From 18 months to less than 2 years................................... .200%
From 2 years to less than 3 years..................................... .250%
From 3 years to less than 4 years..................................... .350%
From 4 years to less than 5 years..................................... .450%
From 5 years to less than 6 years..................................... .500%
From 6 years to less than 7 years..................................... .550%
From 7 years to less than 10 years.................................... .600%
From 10 years to less than 15 years................................... .625%
From 15 years to less than 20 years................................... .700%
20 years to 30 years ................................................. .750%
</TABLE>
The Agents are authorized to solicit offers to purchase
Securities which will be issued in denominations of $1,000 (or, in the case of
Securities not denominated in U.S. dollars, the equivalent thereof in the
applicable foreign currency or composite currency, rounded down to the nearest
1,000 units of such foreign currency or composite currency) or any amount in
excess thereof which is an integral multiple of $1,000 (or, in the case of
Securities not denominated in U.S. dollars, 1,000 units of such foreign currency
or composite currency). Each Agent shall communicate to the Partnership, orally
or in writing, each offer to purchase Securities received by such Agent as agent
that in its judgment should be considered by the Partnership. The Partnership
shall have the sole right to accept offers to purchase the Securities and may
reject any such offer in whole or in part and any such rejection shall not be
deemed a breach of its agreements herein contained. Each Agent shall have the
right, in its sole discretion, to reject any offer to purchase Securities, as a
whole or in part, that it considers to be unacceptable and any such rejection
shall not be deemed a breach of its agreements herein contained. The procedural
details relating to the issue and delivery of Securities sold by an Agent as
agent and the payment therefor are set forth in the Administrative Procedures
(as hereinafter defined).
(b) Purchase as Principal. Each sale of Securities to any
Agent as principal shall be made in accordance with the terms of this Agreement
and (unless such Agent shall otherwise agree) a Terms Agreement which will
provide for the sale of such Securities to, and the purchase thereof by, such
Agent. A Terms Agreement will be substantially in the form of Exhibit A hereto
but may take the form of an exchange of any standard form of written
telecommunication between an Agent and the Partnership and may also specify
certain
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<PAGE> 13
provisions relating to the reoffering of such Securities by such Agent.
The commitment of any Agent to purchase securities as principal, whether
pursuant to any Terms Agreement or otherwise, shall be deemed to have been made
on the basis of the representations and warranties of the Partnership and the
Company herein contained and shall be subject to the terms and conditions herein
and in the applicable Terms Agreement set forth. Each agreement by an Agent to
purchase Securities as principal (pursuant to a Terms Agreement or otherwise)
shall specify the principal amount of Securities to be purchased by such Agent
pursuant thereto, the price to be paid to the Partnership for such Securities,
the maturity date of such Securities, the interest rate or interest rate basis,
if any, applicable to such Securities, any other terms of such Securities, the
time and date and place of delivery of and payment for such Securities (the time
and date of any and each such delivery and payment, the "Time of Delivery"), any
provisions relating to rights of, and default by, underwriters acting together
with such Agent in the reoffering of Securities, and shall also specify any
requirements for opinions of counsel, accountants' letters and officers'
certificates pursuant to Section 4 hereof. Unless otherwise specified in a Terms
Agreement, the procedural details relating to the issue and delivery of
Securities purchased by an Agent as principal and the payment therefore shall be
as set forth in the Administrative Procedures.
(c) Obligations Several. The Partnership acknowledges that the
obligations of the Agents are several and not joint and, subject to the
provisions of this Section 2, each Agent shall have complete discretion as to
the manner in which it solicits purchasers for the Securities and as to the
identity thereof.
(d) Administrative Procedures. The Agents and the Partnership
agree to perform their respective duties and obligations specifically provided
to be performed in the Medium-Term Notes Administrative Procedures (the
"Administrative Procedures") attached hereto as Exhibit B, as the same may be
amended from time to time. The Administrative Procedures may be amended only by
written agreement of the Partnership and the Agents.
(e) Other Securities. The Partnership agrees to notify each
Agent of sales by the Partnership of Other Securities.
3. Commencement Date. The documents required to be delivered
pursuant to Section 6 hereof on the Commencement Date (as defined below) shall
be delivered to the Agents at the offices of Brown & Wood LLP, New York, New
York, at 11:00 a.m., New York City time, on the date of this Agreement, which
date and time of such delivery may be postponed by agreement among the Agents,
the Partnership and the Company but in no event shall be later than the day
prior to the date on which solicitation of offers to purchase Securities is
commenced or the first date on which the Partnership accepts an offer by any
Agent to purchase Securities as principal (such time and date being referred to
herein as the "Commencement Date").
4. Covenants of the Partnership and the Company. Each of the
Partnership and the Company covenants and agrees with each Agent as follows:
(a)(i) to make no amendment or supplement to the Registration
Statement or the Prospectus prior to the termination of the offering of the
Securities pursuant to this Agreement or any Terms Agreement which shall be
disapproved by any Agent after reasonable opportunity to
13
<PAGE> 14
comment thereon, provided, however that the foregoing shall not apply to any of
the Partnership's or the Company's periodic filings with the Commission
described in subsection (iii) below, copies of which filings the Partnership or
the Company will cause to be delivered to the Agents promptly after their
transmission to the Commission for filing; (ii) subject to the foregoing clause
(i), promptly to cause each Prospectus Supplement to be filed with or
transmitted for filing to the Commission in accordance with Rule 424(b) under
the Securities Act and to prepare, with respect to any Securities to be sold
through or to such Agent pursuant to this Agreement, a Pricing Supplement with
respect to such Securities in a form previously approved by such Agent and to
file such Pricing Supplement in accordance with Rule 424(b) under the Securities
Act; and (iii) promptly to file all reports and any definitive proxy or
information statements required to be filed by the Partnership 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 delivery of a prospectus is required in
connection with the offering or sale of the Securities. The Partnership will
promptly advise each Agent (i) of the filing of any amendment or supplement to
the Basic Prospectus or any amendment to the Registration Statement and of the
effectiveness of any such amendment to the Registration Statement, (ii) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or any order preventing or suspending the use of any
prospectus relating to the Securities or the initiation or threatening of any
proceeding for that purpose, or of any request by the Commission for any
amendment or supplement of the Registration Statement or Prospectus or for
additional information; and (iii) of the receipt by the Partnership or the
Company of any notification with respect to any suspension of the qualification
of the Securities for offering or sale in any jurisdiction, or of the initiation
or threatening of any proceeding for any such purpose. Each of the Partnership
and the Company agrees to use its best efforts to prevent the issuance of any
such stop order or of any such order preventing or suspending the use of any
such prospectus or of any notification suspending any such qualification and, if
issued, to use promptly its best efforts to obtain withdrawal thereof as soon as
possible. If the Basic Prospectus is amended or supplemented as a result of the
filing under the Exchange Act of any document incorporated by reference in the
Prospectus, no Agent shall be obligated to solicit offers to purchase Securities
so long as it is not reasonably satisfied with such document;
(b) to endeavor to qualify the Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the Agents shall
reasonably request and to continue such qualification in effect so long as
reasonably required in connection with the distribution of the Securities;
provided that neither the Partnership nor the Company shall be required to file
a general consent to service of process in any jurisdiction;
(c) to furnish each Agent and counsel to the Agents, at the
expense of the Partnership, a signed 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 (d) below, to furnish each Agent as many copies of the Prospectus
(including all amendments and supplements thereto) and documents incorporated by
reference therein as such Agent may reasonably request;
(d) if at any time when a prospectus relating to the
Securities is required to be delivered under the Securities Act, any event shall
occur as a result of which the Prospectus, as
14
<PAGE> 15
then amended or supplemented, would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances when such Prospectus is
delivered to a purchaser, not misleading, or, if in the opinion of the Agents or
the Partnership, it is necessary at any time to amend or supplement the
Prospectus to comply with law, to immediately notify the Agents by telephone
(with confirmation in writing) and request each Agent (i) in its capacity as
agent of the Partnership, to suspend solicitation of offers to purchase
Securities from the Partnership (and, if so notified, such Agent shall cease
such solicitations and cease using the Prospectus as soon as practicable, but in
any event not later than one business day later); and (ii) to cease sales of any
Securities such Agent may then own as principal. If the Partnership shall decide
to amend or supplement the Registration Statement or the Prospectus as then
amended or supplemented, it shall so advise each Agent promptly by telephone
(with confirmation in writing) and, at its expense, shall prepare and cause to
be filed promptly with the Commission an amendment or supplement to the
Registration Statement or the Prospectus, as then amended or supplemented, that
will correct such statement or omission or effect such compliance and will
supply such amended or supplemented Prospectus to the Agents in such quantities
as they may reasonably request. If such amendment or supplement and the
documents, opinions, letters and certificates furnished to the Agents pursuant
to Sections 4(e), 4(i), 4(j) and 4(k) in connection with the preparation and
filing of such amendment or supplement are satisfactory in all respects to the
Agents, then upon the filing with the Commission of such amendment or supplement
to the Prospectus or upon the effectiveness of an amendment to the Registration
Statement, the Agents will resume the solicitation of offers to purchase
Securities hereunder. Notwithstanding any other provision of this Section 4(d),
if during such period an Agent continues to own Securities purchased from the
Partnership by such Agent as principal or in the event such Agent, in the
opinion of its counsel, is otherwise required to deliver a prospectus in respect
of a transaction in the Securities, if any event described in this Section 4(d)
occurs the Partnership will, at its own expense, promptly prepare and file with
the Commission an amendment or supplement, satisfactory in all respects to such
Agent, that will correct such statement or omission or effect such compliance,
will supply such amended or supplemented Prospectus to such Agent in such
quantities as such Agent may reasonably request and shall furnish to such Agent
pursuant to Section 4(e), 4(i), 4(j) and 4(k) such documents, certificates,
opinions and letters as it may request in connection with the preparation and
filing of such amendment or supplement;
(e) to furnish to the Agents during the term of this Agreement
such relevant documents and certificates of officers of the Partnership and the
Company relating to the business, operations and affairs of the Partnership and
the Company, the Registration Statement, the Basic Prospectus, any amendments or
supplements thereto, the Indenture, the Securities, this Agreement, the
Administrative Procedures, any applicable Terms Agreement and the performance by
each of the Partnership and the Company of its obligations hereunder or
thereunder as the Agents may from time to time reasonably request and shall
notify the Agents promptly in writing of any downgrading, or on its receipt of
any notice of (i) any intended or potential downgrading or (ii) any review or
possible change that does not indicate maintaining or an improvement in the
rating accorded any securities of, or guaranteed by, 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;
15
<PAGE> 16
(f) to make generally available to its security holders and to
the Agents as soon as practicable earnings statements which shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission
promulgated thereunder covering periods of at least twelve months beginning in
each case 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 with respect to each sale of Securities;
(g) with respect to each Security, for a period of three years
following the issuance of such Security, to furnish to such Agents 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;
(h) that, from the date of any applicable Terms Agreement with
an Agent or other agreement by an Agent to purchase Securities as principal and
continuing to and including the business day following the related Time of
Delivery, 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, without the prior written consent of
such Agent;
(i) that each time the Registration Statement or the
Prospectus shall be amended or supplemented (other than by an amendment or
supplement providing solely for a change in the interest rates, redemption
provisions, amortization schedules or maturities offered on the Securities or
for a change which the Agents deem to be immaterial) and each time the
Partnership sells Securities to such Agent as principal pursuant to a Terms
Agreement or other agreement and such Terms Agreement or other agreement
specifies the delivery of an opinion under this Section 4(i) as a condition to
the purchase of Securities pursuant to such Terms Agreement or other agreement,
the Partnership shall furnish or cause to be furnished forthwith to such Agent
the written opinions of Goodwin, Procter & Hoar LLP and of Kennedy, Covington,
Lobdell & Hickman, L.L.P., or other counsel for the Partnership and the Company
satisfactory to such Agent, dated the date of such amendment or supplement, or
the related Time of Delivery relating to such sale, as the case may be, in form
satisfactory to such Agent, of the same tenor as the opinion referred to in
Sections 6(b) and 6(c), respectively, hereof but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
date of each such opinion, or, in lieu of such opinion, counsel last furnishing
such an opinion, may each furnish to the Agents a letter to the effect that such
Agent may rely on the opinion of such counsel which was last furnished to such
Agent to the same extent as though it were dated the date of such letter (except
that the statements in such last opinion shall be deemed to relate to the
Registration Statement and the Prospectus as amended or supplemented to date of
delivery of such letter);
(j) that each time the Registration Statement or the
Prospectus shall be amended or supplemented to include or incorporate amended or
supplemented financial information and each time the Partnership sells
Securities to such Agent as principal pursuant to a Terms Agreement or other
agreement and such Terms Agreement or other agreement specifies the delivery of
a letter under this Section 4(j) as a condition to the purchase of Securities
pursuant to such Terms Agreement or other agreement, the Partnership shall cause
the independent certified public accountants who have certified the financial
statements of the Partnership and the Company and its Subsidiaries included or
incorporated by reference in the
16
<PAGE> 17
Registration Statement forthwith to furnish such Agent a letter, dated the date
of such amendment or supplement or the related Time of Delivery relating to such
sale, as the case may be, in form satisfactory to such Agent, of the same tenor
as the letter referred to in Section 6(d) hereof but modified to relate to the
Registration Statement and the Prospectus as amended or supplemented to the date
of such letter with such changes as may be necessary to reflect such amended or
supplemented financial information included or incorporated by reference in the
Registration Statement or the Prospectus as amended or supplemented, provided,
however, that, with respect to any financial information or other matter, such
letter may reconfirm as true and correct at such date, as though made at and as
of such date, rather than repeat statements with respect to such financial
information or other matters made in the letter referred to in Section 6(d)
hereof which was last furnished to such Agent;
(k) that each time the Registration Statement or the
Prospectus shall be amended or supplemented (other than by an amendment or
supplement providing solely for a change in the interest rates, redemption
provisions, amortization schedules or maturities offered on the Securities or
for a change which the Agents deem to be immaterial), and each time the
Partnership sells Securities to such Agent as principal and the applicable Terms
Agreement or other agreement specifies the delivery of a certificate under this
Section 4(k) as a condition to the purchase of Securities pursuant to such Terms
Agreement or other agreement, the Partnership shall furnish or cause to be
furnished forthwith to such Agent a certificate signed by an executive officer
of the Company, in its capacity as general partner of the Partnership, dated the
date of such amendment or supplement or the related Time of Delivery relating to
such sale, as the case may be, in form satisfactory to such Agent, of the same
tenor as the certificates referred to in Section 6(e) but modified to relate to
the Registration Statement and the Prospectus as amended and supplemented to the
date of delivery of such certificate or to the effect that the statements
contained in the certificate referred to in Section 6(e) hereof which was last
furnished to such Agent are true and correct at such date as though made at and
as of such date (except that such statements shall be deemed to relate to the
Registration Statement and the Prospectus as amended or supplemented to such
date).
5. Costs and Expenses. Each of the Partnership and the
Company covenants and agrees with each Agent that the Partnership and/or the
Company will, whether or not any sale of Securities is consummated, pay all
costs and expenses incident to the performance of its obligations hereunder and
under any applicable Terms Agreement, 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 Agents (or in connection with any
Terms Agreement, the applicable Agent) may designate (including reasonable fees
of counsel for the Agents (or such Agent) and their reasonable disbursements),
(iv) in connection with the listing of the Securities on any stock exchange, (v)
related to any filing with National Association of Securities Dealers, Inc. (the
"NASD"), (vi) in connection with the printing (including word processing and
duplication costs) and delivery of this Agreement, the Indenture, any Blue Sky
Memoranda and any Legal
17
<PAGE> 18
Investment Survey and the furnishing to the Agents and dealers of copies of the
Registration Statement and the Prospectus, including mailing and shipping, as
herein provided, (vii) payable to rating agencies in connection with the rating
of the Securities, (viii) the fees and disbursements of counsel for the Agents
incurred in connection with the offering and sale of the Securities, including
any opinions to be rendered by such counsel hereunder and (ix) any advertising
and reasonable out-of-pocket expenses incurred by the Agents in connection with
the offering and sale of the Securities.
6. Conditions. The obligation of any Agent, as agent of the
Partnership, at any time ("Solicitation Time") to solicit offers to purchase the
Securities, the obligation of any Agent to purchase Securities as principal
pursuant to, any Terms Agreement or otherwise, and the obligation of any other
purchaser to purchase Securities shall in each case be subject (1) to the
condition that all representations and warranties of the Partnership and the
Company herein and all statements of officers of the Partnership and the Company
made in any certificate furnished pursuant to the provisions hereof are true and
correct (i) in the case of an Agent's obligation to solicit offers to purchase
Securities, at and as of such Solicitation Time and (ii) in the case of any
Agent's or any other purchaser's obligation to purchase Securities, at and as of
the time the Partnership accepts the offer to purchase such Securities and, as
the case may be, at and as of the related Time of Delivery or time of purchase;
(2) to the condition that at or prior to such Solicitation Time, time of
acceptance, Time of Delivery or time of purchase, as the case may be, each of
the Partnership and the Company shall have complied with all its agreements and
all conditions on its part to be performed or satisfied hereunder, and (3) to
the following additional conditions when and as specified:
(a) Prior to such Solicitation Time or corresponding Time of Delivery
or time of purchase, as the case may be:
(i) the Prospectus as amended or supplemented
(including, if applicable, the Pricing Supplement) with
respect to such Securities shall have been filed with the
Commission pursuant to Rule 424(b) under the Securities Act
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 proceeding for that
purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the
part of the Commission shall have been complied with to the
reasonable satisfaction of such Agent;
(ii) there shall not have occurred any downgrading,
nor shall any notice have been given of (A) downgrading, (B)
any intended or potential downgrading or (C) any review or
possible change that does not indicate maintaining or an
improvement in the rating accorded any securities of or
guaranteed by the Partnership by any "nationally recognized
statistical rating organization", as such term is defined by
the Commission for purposes of Rule 436(g)(2) under the
Securities Act;
18
<PAGE> 19
(iii) there shall not have been since the respective
dates as to which information is given in the Prospectus, any
material 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, prospects,
management, financial position, stockholders' equity or
results of operations of the Company and its Subsidiaries,
taken as a whole, the effect of which in the judgment of the
applicable Agent makes it impracticable or inadvisable to
proceed with the solicitation by such Agent of offers to
purchase Securities from the Partnership or the purchase by
such Agent of Securities from the Partnership as principal, as
the case may be, on the terms and in the manner contemplated
in the Prospectus, as so amended or supplemented; and neither
the Company nor any of its Subsidiaries has 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; and
(iv) (A) trading generally shall not 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 or the NASD, (B) trading of any securities of or
guaranteed by the Partnership or the Company shall not have
been suspended on any exchange or in any over-the-counter
market, (C) a general moratorium on commercial banking
activities in New York shall not have been declared by either
Federal or New York State authorities, or (D) there shall not
have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in
the judgment of such Agent or Agents of such other purchaser,
is material and adverse and which in the judgment of such
Agent or Agents or of such other purchaser makes it
impracticable to proceed with the solicitation by such Agent
of offers to purchase Securities from the Partnership or the
purchase by such Agent of Securities from the Partnership as
principal, as the case may be, on the terms and in the manner
contemplated in the Prospectus as amended or supplemented at
the Solicitation Time or at the time such offer to purchase
was made.
(b) On the Commencement Date, and in the case of a purchase of
Securities by an Agent as principal pursuant to a Terms Agreement or
otherwise, if called for by the applicable Terms Agreement or other
agreement, at the corresponding Time of Delivery, Goodwin, Procter &
Hoar LLP, counsel for the Company and the Subsidiaries, shall have
furnished to the relevant Agent or Agents their written opinion, dated
the Commencement Date or Time of Delivery, as the case may be, in form
and substance satisfactory to such Agent or Agents, to the effect that:
19
<PAGE> 20
(i) the Partnership has been duly formed and is
validly existing as a limited 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 I
attached hereto;
(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 I attached hereto;
(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;
(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 issuance of the Securities has been duly
authorized by the Partnership and, when duly executed by the
Operating Partnership and authenticated in accordance with the
terms of the Indenture and delivered to and paid for by any
purchaser of Securities sold through an Agent as agent or any
Agent as principal pursuant to and in accordance with the
terms of this Agreement and applicable resolutions of the
Pricing Committee appointed by the Board of Directors of the
Company, 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.
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<PAGE> 21
The Indenture conforms 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 duty 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 III 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 provision
of any order, rule or regulation of any court or governmental
agency having jurisdiction over the Company, its Subsidiaries
or any of their respective properties except for such
contraventions 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 of the Partnership or, (b) (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 II attached hereto except
for such conflicts, breaches or defaults 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 III which are all of the attorneys at
Goodwin, Procter & Hoar LLP who are currently working on
matters for the Company or any of its
21
<PAGE> 22
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 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 III 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 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.
(ix) 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 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
22
<PAGE> 23
to which such counsel need express no opinion) comply as to
form in all material respects with the requirements of the
Securities Act;
(x) the Registration Statement has been declared
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;
(xi) 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;
(xii) 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,
1997, 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;
(xiii) the statements set forth in the Prospectus
under the captions "Federal Income Tax Considerations" and
"Certain United States Federal Income Tax Considerations"
insofar as such statements constitute summaries of the legal
matters referred to therein, are accurate in all material
respects; and
(xiv) 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, representatives 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:
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<PAGE> 24
(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 date of delivery of such opinion, 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.
(c) On the Commencement Date, and in the case of a purchase of
Securities by the Agent as principal pursuant to a Terms Agreement or
otherwise, if called for by the applicable Terms Agreement or other
agreement, at the corresponding Time of Delivery, Kennedy Covington
Lobdell & Hickman, special counsel for the Company and the
Subsidiaries, shall have furnished to the relevant Agent or Agents
their written opinion, dated the Commencement Date or Time of Delivery,
as the case may be, in form and substance satisfactory to such Agent or
Agents, 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 I attached hereto and, to the knowledge of
the attorneys listed on Schedule IV 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 I attached hereto and, to the knowledge of the
attorneys listed on Schedule IV 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
24
<PAGE> 25
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 IV 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 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
of the 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 II
attached hereto or, to the knowledge of the attorneys listed
on Schedule IV 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 IV which are all of the attorneys at
Kennedy Covington Lobdell & Hickman who are currently working
on matters
25
<PAGE> 26
for the Company or 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;
(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 proceeding relating to revocation or modification of
any Governmental Approval or, to the knowledge of the
attorneys listed on Schedule IV 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 the
26
<PAGE> 27
date of delivery of such opinion; 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 IV
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 the date of delivery of such opinion; 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.
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:
(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
date of delivery of such opinion 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 (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
27
<PAGE> 28
opinions (in form and substance reasonably satisfactory to the Agents' counsel)
of other counsel reasonably acceptable to the Agents' 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 Agents and they are justified in relying
thereon. With respect to the matters to be covered in the last paragraphs of
subparagraph (b) and subparagraph (c) above counsel may state that 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.
(d) On the Commencement Date, and in the case of a purchase of
Securities by an Agent as principal pursuant to a Terms Agreement or
otherwise, if called for by the applicable Terms Agreement or other
agreement, at the corresponding Time of Delivery, Brown & Wood LLP,
counsel to the Agents, shall have furnished to the relevant Agent or
Agents such opinion or opinions, dated the Commencement Date or Time of
Delivery, as the case may be, with respect to the validity of the
Indenture, the Securities, the Registration Statement, the Prospectus
as amended or supplemented and other related matters as such Agent or
Agents may reasonably request, and in each case such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters.
(e) On the Commencement Date, and in the case of a purchase of
Securities by an Agent as principal pursuant to a Terms Agreement or
otherwise, if called for by the applicable Terms Agreement or other
agreement, at the corresponding Time of Delivery, the independent
certified public accountants who have certified the financial
statements included or incorporated by reference in the Registration
Statement and Prospectus, as then amended or supplemented, shall have
furnished to the relevant Agent or Agents a letter, dated the
Commencement Date or Time of Delivery, as the case may be, in form and
substance satisfactory to such Agent or Agents, containing statements
and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in or
incorporated by reference in the Registration Statement and the
Prospectus, as then amended or supplemented.
(f) On the Commencement Date, and in the case of a purchase of
Securities by an Agent as principal pursuant to a Terms Agreement or
otherwise, if called for by the applicable Terms Agreement or other
agreement, at the corresponding Time of Delivery, the relevant Agent or
Agents shall have received a certificate or certificates signed by an
executive officer of each of the Partnership and the Company, dated the
Commencement Date or Time of Delivery, as the case may be, to the
effect set forth in Section 6(a)(i) and (ii) above and to the further
effect that (1) the representations and warranties of the Partnership
and the Company contained herein are true and correct on and as of the
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<PAGE> 29
Commencement Date or Time of Delivery, as the case may be, as if made
on and as of such date, (2) each of the Partnership and the Company has
complied with all agreements and all conditions on its part to be
performed or satisfied hereunder or under the applicable Terms
Agreement or other agreement at or prior to the Commencement Date or
Time of Delivery, as the case may be, and (3) there has not been any
change in the capital stock or long-term debt of the Partnership and/or
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, prospects, management, financial
position, stockholders' equity or results of operations of the
Partnership and/or the Company and its Subsidiaries taken as a whole
from that set forth in or contemplated by the Registration Statement or
the Prospectus.
(g) On the Commencement Date and at each Time of Delivery,
each of the Partnership and the Company shall have furnished to the
relevant Agent or Agents such further certificates, information and
documents as such Agent or Agents may reasonably request.
7. Indemnification and Contribution. (a) The Partnership and
the Company, jointly and severally, agree to indemnify and hold harmless each
Agent and each person, if any, who controls such Agent, each affiliate of any
Agent which assists such Agent in the distribution of the Securities 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 any amendment thereof 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 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 Agent furnished
to the Partnership and/or the Company in writing by such Agent expressly for use
therein; provided, however, that the foregoing indemnity with respect to any
preliminary prospectus shall not inure to the benefit of any Agent (or to the
benefit of the person controlling such Agent) 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 Partnership and the Company shall have furnished any
amendments or supplements thereto) and, if required by law, a copy of the
Prospectus (as 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.
(b) Each Agent agrees to indemnify and hold harmless the
Partnership, the Company, its directors, its officers who sign the Registration
Statement and each person who controls the Partnership and/or the Company within
the meaning of Section 15 of the Securities Act and Section 20 of the Exchange
Act, to the same extent as the foregoing indemnity from the
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<PAGE> 30
Partnership and the Company to each Agent, but only with reference to
information relating to such Agent furnished to the Partnership or the Company
in writing by such Agent expressly for use in the Registration Statement, the
Prospectus, any amendment or supplement thereto, or any preliminary prospectus.
(c) 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) 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 Agents, each
affiliate of any Agent which assists such Agent in the distribution of the
Securities and such control persons of the Agents shall be designated in writing
by J.P. Morgan Securities Inc. or, if J.P. Morgan Securities Inc. is not an
Indemnified Party, by the Agents that are Indemnified Parties 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
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<PAGE> 31
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.
(d) If the indemnification provided for in paragraphs (a) or
(b) this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or 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 each
Agent on the other 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 each Agent 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 each Agent on the other in connection with the offering of such Securities
shall be deemed to be in the same respective proportion as the net proceeds from
the offering of such Securities (before deducting expenses) received by the
Partnership and the Company and the total discounts and commissions received by
each Agent in respect thereof bear to the aggregate offering price of such
Securities. The relative fault of the Partnership and the Company on the one
hand and of each Agent 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 such Agent and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Partnership, the Company and each Agent agree that it
would not be just and equitable if contribution pursuant to this subsection (d)
were determined by pro rata allocation (even if all Agents 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 above in this subsection
(d). The amount paid or payable by an Indemnified Person as a result of the
losses, claims, damages and liabilities referred to above in this Section 7
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 Agent be required to
contribute any amount in excess of the amount by which the total price at which
the Securities that were sold by or through such Agent exceeds the amount of any
damages that such Agent has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No 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 obligation of each Agent to
contribute pursuant to this subsection (d) is several (in the proportion that
the principal amount of the Securities the sale of which by or through such
Agent gave rise to such losses, claims, damages or liabilities
31
<PAGE> 32
bears to the aggregate principal amount of the Securities the sale of which by
or through any Agent gave rise to such losses, claims, damages or liabilities)
and is not joint.
(e) The indemnity and contribution agreements contained in
this Section 7 are in addition to any liability which the Indemnifying Persons
may otherwise have to the Indemnified Persons referred to above at law or in
equity.
8. Termination. (a) This Agreement may be terminated at any
time (i) by the Partnership and/or the Company with respect to any or all of the
Agents or (ii) by any Agent with respect to itself only, in each case upon the
giving of written notice of such termination to each other party hereto. Any
Terms Agreement shall be subject to termination immediately upon the failure of
any condition in the absolute discretion of the Agent or Agents that are parties
thereto on the terms set forth or incorporated by reference therein. The
termination of this Agreement shall not require termination of any agreement by
an Agent to purchase Securities as principal (whether pursuant to a Terms
Agreement or otherwise) and the termination of such an agreement shall not
require termination of this Agreement. In the event this Agreement is terminated
with respect to any Agent, (x) this Agreement shall remain in full force and
effect with respect to any Agent as to which such termination has not occurred,
(y) this Agreement shall remain in full force and effect with respect to the
rights and obligations of any party which have previously accrued or which
relate to Securities which are already issued, agreed to be issued or the
subject of a pending offer at the time of such termination and (z) in any event,
the provisions of the third paragraph of Section 2(a), and Sections 2(c), 4(f),
4(g), 5, 7, 8, 9, 10, 12 and 15 shall survive; provided that if at the time of
termination an offer to purchase Securities has been accepted by the Company but
the time of delivery to the purchaser or its agent of such Securities has not
yet occurred, the provisions of Sections 2(b), 2(d), 4(a) through 4(e), 4(h)
through 4(k) and 6 shall also survive. If any Terms Agreement is terminated, the
provisions of Sections 2(b), 2(d), 4(a), 4(b), 4(e), 4(g) through 4(k), 5, 6, 7,
9, 10, 12 and 15 (which shall have been incorporated by reference in such Terms
Agreement) shall survive.
(b) If this Agreement or any Terms Agreement shall be
terminated by an Agent or Agents because of any failure or refusal on the part
of the Partnership and/or the Company to comply with the terms or to fulfill any
of the conditions of this Agreement or any Terms Agreement or if for any reason
the Partnership and/or the Company shall be unable to perform its obligations
under this Agreement or any Terms Agreement or any condition of any Agent's
obligations cannot be fulfilled, the Partnership and the Company agree to
reimburse each Agent or such Agents as have so terminated this Agreement with
respect to themselves for all out-of-pocket expenses (including the fees and
expenses of their counsel) reasonably incurred by such Agent or Agents in
connection with this Agreement or the offering of Securities.
9. Position of the Agents. Each Agent, in soliciting offers to
purchase Securities from the Partnership and in performing the other obligations
of such Agent hereunder (other than in respect of any purchase by such Agent as
principal, pursuant to a Terms Agreement or otherwise), is acting solely as
agent for the Partnership and not as principal and does not assume any
obligation towards or relationship of agency or trust with any purchaser of
Securities. Each Agent will make reasonable efforts to assist the Partnership
and the Company in obtaining performance by each purchaser whose offer to
purchase Securities from the Partnership was solicited by such Agent and has
been accepted by the Partnership, but such
32
<PAGE> 33
Agent shall not have any liability to the Partnership or the Company in the
event such purchase is not consummated for any reason. If the Partnership shall
default on its obligation to deliver Securities to a purchaser whose offer it
has accepted, the Partnership shall (i) hold the relevant Agent harmless against
any loss, claim, damage or liability arising from or as a result of such default
by the Partnership and (ii) notwithstanding such default, pay to the Agent that
solicited such offer any commission to which it would be entitled in connection
with such sale.
10. Representations and Indemnities to Survive. The respective
indemnities and contribution agreements, representations and warranties of the
Partnership, the Company, its officers and the Agents set forth in or made
pursuant to this Agreement or any agreement by an Agent to purchase Securities
as principal shall remain in full force and effect regardless of any termination
of this Agreement or any such agreement, any investigation made by or on behalf
of any Agent or any controlling person of any Agent, or the Partnership, the
Company, or any officer or director or any controlling person of the Partnership
or the Company, and shall survive each delivery of and payment for any of the
Securities.
11. Notices. Except as otherwise specifically provided herein
or in the Administrative Procedures, all statements, requests, notices and
advices hereunder shall be in writing and effective only on receipt, and will be
delivered by hand, by mail (postage prepaid), by telegram (charges prepaid) or
by telex. Communications to the Agents will be sent, in the case of J.P. Morgan,
to 60 Wall Street, New York, New York 10260 (Fax: (212) 648-5909) Attention:
Medium-Term Note Department, in the case of First Union Capital Markets, a
division of Wheat First Securities, Inc., to 301 South College Street,
Charlotte, North Carolina 28288 (Fax: (704) 383-9165) Attention: Debt Syndicate
Group, in the case of Merrill Lynch, Pierce, Fenner & Smith Incorporated, to
World Financial Center, North Tower, New York, New York 10281 (Fax: (212)
449-2234) Attention MTN Product Management, and in the case of Morgan Stanley &
Co Incorporated, to 1585 Broadway, New York, New York 10036 (Fax: (212)
761-0780) Attention: Manager--Continuously Offered Products, with a copy to
Peter Cooper, Investment Banking Information Center (Fax: (212) 761-0780, and if
sent to the Company or the Partnership, to them at 212 South Tryon Street, Suite
500, Charlotte, North Carolina 28211 (FAX: (704) 333-8340); Attention: Mr.
William F. Paulsen, President and Chief Executive Officer with a copy to Mr.
Michael G. Malone, Senior Vice President and General Counsel.
12. Successors. This Agreement and any Terms Agreement shall
be binding upon, and inure solely to the benefit of, each Agent, the Partnership
and the Company, and their respective successors and the officers, directors and
controlling persons referred to in Section 7 and (to the extent expressly
provided in Section 6) the purchasers of Securities, and no other person shall
acquire or have any right or obligation under or by virtue of this Agreement or
any Terms Agreement.
13. Amendments. This Agreement may be amended or supplemented
if, but only if, such amendment or supplement is in writing and is signed by the
Partnership, the Company and each Agent; provided that the Partnership and/or
the Company may from time to time, on 7 days prior written notice to the Agents
but without the consent of any Agent, amend this Agreement to add as a party
hereto one or more additional firms registered under the Exchange Act, whereupon
each such firm shall become an Agent hereunder on the same terms
33
<PAGE> 34
and conditions as the other Agents that are parties hereto. The Agents shall
sign any amendment or supplement giving effect to the addition of any such firm
as an Agent under this Agreement.
14. Business Day. Time shall be of the essence in this
Agreement and any Terms Agreement. As used herein, the term "business day" shall
mean any day which is not a Saturday or Sunday or legal holiday or a day on
which banks in New York City are required or authorized by law or executive
order to close.
15. Applicable Law. This Agreement and any Terms Agreement
shall be governed by, and construed in accordance with, the laws of the State of
New York, without giving effect to the conflict of laws provisions thereof.
16. Counterparts. This Agreement and any Terms 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.
17. Headings. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
34
<PAGE> 35
If the foregoing is in accordance with your understanding,
please sign and return to us eight counterparts hereof, whereupon this letter
and the acceptance by each of you thereof shall constitute a binding agreement
between the Company and each of you in accordance with its terms.
Very truly yours,
SUMMIT PROPERTIES PARTNERSHIP, L.P.
By: Summit Properties Inc., its general partner
By: /s/ Michael Malone
---------------------------------------------
Name:
Title:
SUMMIT PROPERTIES INC.
By: /s/ Michael Malone
---------------------------------------------
Name:
Title:
Accepted in New York, New York,
as of the date first above written:
J.P. Morgan Securities Inc. Morgan Stanley & Co. Incorporated
By: /s/ Robert Post By: /s/ Hal Hendershot
------------------------ ---------------------------
Name: Name:
Title: Title:
Merrill Lynch & Co. First Union Capital Markets, a division
Merrill Lynch, Pierce, Fenner of Wheat First Securities, Inc.
& Smith Incorporated
By:/s/ Richard Doyle By: /s/ William Ingram
------------------------ -------------------------
Name: Name:
Title: Title:
35
<PAGE> 36
Exhibit A
SUMMIT PROPERTIES PARTNERSHIP, L.P.
MEDIUM-TERM NOTES
TERMS AGREEMENT
, 19
------- --
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
First Union Capital Markets, a division
of Wheat First Securities, Inc.
301 S. College Street, 10th Floor
One First Union Center
Charlotte, North Carolina 28288
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center - North Tower
New York, New York 10281
Morgan Stanley & Co. Incorporated
1585 Broadway, 2nd Floor
New York, New York 10036
Attention:
----------------------------
Re: Distribution Agreement dated as of
May , 1998 (the "Distribution Agreement")
-----------------------------------------------
The undersigned agrees to purchase your Medium-Term Notes having the following
terms:
Specified Currency:
--------------------------------------
36
<PAGE> 37
Principal Amount:
-------------------------------
Original Issue Date:
-------------------------------
Settlement Date,
-------------------------------
Time and Place:
-------------------------------
Maturity Date:
-------------------------------
Purchase Price: % of Principal Amount, plus accrued interest, if any,
--------- from Settlement
Date
Price to Public: % of Principal Amount, plus accrued interest, if any,
-------- from Settlement
Date
Redemption Date (Dates): , commencing
Initial Redemption Price:
Annual Redemption Price decrease:
Repayment Date (Dates):
Repayment Price:
Initial accrual period OID:
Original Yield to Maturity
[For Fixed Rate Notes]
Interest Rate:
---------------------------------
Applicability of modified payment
upon acceleration:
If yes, state issue price:
Amortization schedule:
*[(For Floating Rate Notes)
Initial Interest Rate:
-------------------------------
Interest Rate Basis (Commercial Paper, LIBOR,
- -------------------------
*See Prospectus Supplement dated for explanation of terms.
--------
37
<PAGE> 38
Treasury, ) :
Index Maturity (30, 60, 90 days, 6 months, 1 year,
other):
-------------------------------
Interest Reset Period (monthly, quarterly,
semiannually, annually):
-------------------------------
Interest Payment Period (monthly, quarterly,
semiannually, annually):
-------------------------------
Spread: points (+/-)
------------------------------
Spread Multiplier: %
-------------------------------
Maximum Interest Rate: %
----------------------
Minimum Interest Rate: %
----------------------
Initial Interest Reset Date:
--------------------
Interest Reset Dates:
---------------------------
Interest Determination Dates:
-------------------
Interest Payment Dates:
-------------------------
Calculation Agent:
Other terms of Securities:
38
<PAGE> 39
Provisions relating to underwriter default, if any:
The provisions of Sections 1, 2(b) and 2(d) and 4 through 7, 10, 11, 12
and 15 of the Distribution Agreement and the related definitions are
incorporated by reference herein and shall be deemed to have the same force and
effect as if set forth in full herein.
This Agreement is subject to termination in our absolute discretion on
the terms incorporated by referenced herein. If this Agreement is so terminated,
the provisions set forth in the last sentence of Section 8 of the Distribution
Agreement shall survive for the purpose of this Agreement.
The certificate referred to in Section 4(k) of the Distribution
Agreement, the opinion referred to in Section 4(i) of the Distribution Agreement
and the accountants' letter referred to in Section 4(j) of the Distribution
Agreement will be required.
J.P. Morgan Securities Inc.
First Union Capital Markets, a division of Wheat
First Securities, Inc.
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Morgan Stanley & Co. Incorporated
By: J.P. Morgan Securities Inc.
By:
---------------------------
(Title)
Accepted:
SUMMIT PROPERTIES PARTNERSHIP, L.P.
By:
-----------------------------
(Title)
39
<PAGE> 40
Exhibit B
ADMINISTRATIVE PROCEDURES
The Medium-Term Notes, due nine months or more from their date
of issue (the "Notes") are to be offered on a continuing basis by Summit
Properties Partnership L.P. (the "Issuer"). J.P. Morgan Securities Inc., First
Union Capital Markets, a division of Wheat First Securities, Inc., Merrill Lynch
& Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co.
Incorporated, as agents (the "Agents"), have each agreed to use their best
efforts to solicit purchases of the Notes. The Issuer reserves the right to sell
Notes directly or indirectly on its own behalf to investors (other than
broker-dealers). The Agents will not be obligated to, but may from time to time,
purchase Notes as principal for their own account. The Notes are being sold
pursuant to a Distribution Agreement dated May 29, 1998 (the "Agency
Agreement"), among the Issuer, Summit Properties Inc., a Maryland corporation
and the sole general partner and the principal limited partner of the Issuer
(the "Company") and the Agents, and will be issued pursuant to an indenture
dated as of August 7, 1997 and all indentures supplemental thereto, including,
Supplemental Indenture No. 3 dated as of May 29, 1998 (collectively, the
"Indenture") between the Issuer and First Union National Bank, as Trustee (the
"Trustee). Capitalized terms used herein and not defined herein shall have the
meanings ascribed to such terms in the Agency Agreement. The Notes have been
registered under the Securities Act of 1933 (the "Act").
Each Note will be represented by either a Global Security (as defined
in the Indenture), such Global Security, for purposes hereof either a global
note (a "Global Note") or a master note (a "Master Note"), registered in the
name of a nominee of The Depository Trust Company, as Depositary ("DTC") (a
"Book-Entry Note"), or a certificate issued in definitive form (a "Certificated
Note"). It is currently contemplated that both Notes that bear interest at a
fixed rate (a "Fixed Rate Note") and Notes that bear interest at a variable rate
(a "Floating Rate Note") and that are denominated and payable in U.S. dollars
may be issued as Book-Entry Notes.
Administrative procedures and specific terms of the offering are
explained below. The Issuer will advise the Agents in writing of those persons
handling administrative responsibilities with whom the Agents are to communicate
regarding offers to purchase Notes and the details of their delivery.
Administrative procedures may be modified from time to time as reflected in the
applicable Pricing Supplement (as defined below) or elsewhere.
<PAGE> 41
PART I: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
AND GENERALLY APPLICABLE ADMINISTRATIVE PROCEDURES
Issue/
Authentication
Date: Each Note shall be dated as of the date of its
authentication by the Trustee or an
agent designated by the Issuer for such purpose (the
"Designated Agent"). Each Note will also bear an
original issue date (the "Issue Date") which, with
respect to any Note (or portion thereof), shall mean
the date of its original issuance (i.e., the
settlement date) and shall be specified therein. The
issue date will remain the same for all Notes
subsequently issued upon transfer, exchange or
substitution of an original Note regardless of their
dates of authentication.
Maturities: Each Note shall mature on a Business Day, selected
by the purchaser and agreed to by the Issuer, which
shall be nine months or more from the date of issue.
Price to Public: Each Note shall be issued at 100% of
principal amount unless otherwise specified in a
supplement to the Prospectus (a "Pricing
Supplement").
Denominations: The denominations of the Notes shall be $1,000 and
integral multiples of $1,000 in excess thereof. (Any
Notes denominated other than in U.S. dollars will be
issuable in denominations as set forth in such
Notes.)
Registration: Notes shall be issued only in fully registered form.
Minimum Purchase: The minimum aggregate amount of Notes denominated and
payable in U.S. dollars which may be offered to any
purchaser will be $1,000.
Interest: General. Each Note shall bear interest in accordance
with its terms, as described in the Prospectus
Supplement (as defined in the Agency Agreement), as
supplemented by the applicable Pricing Supplement.
Calculation of
Interest: Interest on Fixed Rate Notes and interest rates on
Floating Rate Notes will be determined as set forth
in the form of Notes. With respect to Floating Rate
Notes, the Calculation Agent shall determine the
interest rate for each Interest Reset Date and
communicate such interest rate to the Issuer, and the
Issuer will promptly notify the Trustee, or the
Designated Agent, and the Paying Agent of each such
determination.
Payments of
Interest and
Principal: All interest payments (excluding interest payments
made at maturity) will be made by check mailed to the
person entitled thereto; provided,
2
<PAGE> 42
however, that if a holder of one or more Notes of
like tenor and terms with an aggregate principal
amount equal to or greater than U.S. $10,000,000 (or
the equivalent thereof in foreign currencies or
currency units) shall designate in writing to the
Paying Agent at its corporate trust office in The
City of New York on or prior to the Regular Record
Date relating to the Interest Payment Date an
appropriate account with a bank, the Paying Agent
will, subject to applicable laws and regulations and
until it receives notice to the contrary, make such
payment and all succeeding payments to such person by
wire transfer to the designated account. If a payment
cannot be made by wire transfer because the
information received by the Paying Agent is
incomplete, a notice will be mailed to the holder at
its registered address requesting such information.
Upon presentation of the relevant Note, the Trustee,
or the Designated Agent, (or any duly appointed
Paying Agent) will pay in immediately available funds
the principal amount of such Note at maturity and
accrued interest, if any, due at maturity; provided
that the Note is presented to the Trustee, or the
Designated Agent, (or any such Paying Agent) to make
payments in accordance with its normal procedures.
The Issuer will provide the Trustee, or the
Designated Agent, (and any such Paying Agent) with
funds available for such purpose. Notes presented to
the Trustee, or the Designated Agent, at maturity for
payment will be canceled and destroyed by the
Trustee, or the Designated Agent, and a certificate
of destruction will be delivered to the Issuer. On
the fifth Business Day (as defined below) immediately
preceding each interest payment date, the Trustee, or
the Designated Agent, will furnish to the Issuer a
statement showing the total amount of the interest
payments to be made on such interest payment date.
The Trustee, or the Designated Agent, will provide
monthly to the Issuer a list of the principal and
interest to be paid on Notes maturing in the next
succeeding six months. The Trustee, or the Designated
Agent, will assume responsibility for withholding
taxes on interest paid as required by law.
Acceptance
of Offers: The Agents will promptly advise the Issuer of each
reasonable offer to purchase Notes
received by it, other than those rejected by the
Agents. The Agents may, in their discretion
reasonably exercised, without notice to the Issuer,
reject any offer received by it, in whole or in part.
The Issuer will have the sole right to accept offers
to purchase Notes and may reject any such offer, in
whole or in part. If the Issuer rejects an offer, the
Issuer will promptly notify the Agents.
Settlement: All offers accepted by the Issuer will be settled on
the third Business Day next succeeding the date of
acceptance unless otherwise agreed by any purchaser,
the Agents and the Issuer. The settlement date shall
be specified upon receipt of an offer. Prior to 3:00
p.m., New York City time, on the business day prior
to the settlement date, the Issuer will
3
<PAGE> 43
instruct the Trustee, or the Designated Agent, to
authenticate and deliver the Notes pursuant to the
terms communicated by the Presenting Agent pursuant
to the next succeeding section no later than 2:15
p.m., New York City time, on that day.
Details for
Settlement: For each offer accepted by the Issuer, the Agent who
presented the offer (the "Presenting Agent") shall
communicate to the Issuer, Attention: Michael L.
Schwarz or Michael G. Malone (Fax No.:704-333-8340)
who will provide a copy to the Trustee, Attention:
Corporate Trust Department (Fax No.: (704) 383-7316)
and the Designated Agent, if any, by facsimile
transmission or other acceptable means the following
information (the "Purchase Information"):
1. Exact name in which the Note or Notes are to
be registered ("registered owner").
2. Exact address of registered owner.
3. Taxpayer identification number of registered
owner.
4. Principal amount of each Note to be
delivered to the registered owner
5. Specified Currency and, if other than U.S.
dollar, denominations.
6. In the case of a Fixed Rate Note, the
interest rate or, in the case of a Floating
Rate Note, the interest rate formula, the
Initial Interest Rate (if known at such
time), Index Maturity, Interest Reset
Period, Interest Reset Dates, Spread or
Spread Multiplier (if any), minimum interest
rate (if any) and maximum interest rate (if
any).
7. Interest Payment Period and Interest Payment
Dates.
8. Maturity Date of Notes.
9. Issue Price of Notes.
10. Settlement date for Notes.
11. Presenting Agent's commission (to be paid in
the form of a discount from the proceeds
remitted to the Issuer upon settlement).
12. Redemption provisions, if any.
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<PAGE> 44
13. Repayment provisions, if any.
14. Original issue discount provisions, if any.
15. In the case of Currency Indexed Notes, the
above-listed information, as applicable and
the Base Exchange Rate(s), Base Interest
Rate and Indexed Currencies.
16. In the case of Dual Currency Notes, the
above listed information, as applicable, and
the Optional Payment Currency, Designated
Exchange Rate and Option Election Dates.
The issue date of, and the settlement date
for, Notes will be the same. Before
accepting any offer to purchase Notes to be
settled in less than three days, the Issuer
shall verify that the Trustee, or the
Designated Agent, will have adequate time to
prepare and authenticate the Notes. Prior to
preparing the Notes for delivery, the
Trustee, or the Designated Agent, will
confirm the Purchase Information by
telephone with the Presenting Agent and the
Issuer.
Confirmation: For each accepted offer, the Presenting Agent will
issue a confirmation, in writing, telephonically or
through any other commonly used method of
communication to the purchaser and a confirmation to
the Issuer, Attention: Michael L. Schwarz or Michael
G. Malone (Fax No.:704-333-8340).
Note Deliveries
and Cash Payment: Upon the receipt of appropriate documentation and
instructions from the Issuer and verification
thereof, the Trustee, or the Designated Agent, will
cause the Notes to be prepared and authenticated and
hold the Notes for delivery against payment.
The Trustee, or the Designated Agent, will deliver
the Notes, in accordance with instructions from the
Issuer, to the Presenting Agent, as the Issuer's
agent, for the benefit of the purchaser only against
payment in immediately available funds in an amount
equal to the face amount of the Notes less the
Presenting Agent's commission plus any premium or
less any discount provided, however, that the
Trustee, or the Designated Agent, may deliver Notes
to the Presenting Agent against receipt therefor and,
later the same day, receipt of such funds in such
amount. Upon receipt of such payment, the Trustee, or
the Designated Agent, shall pay promptly an amount
equal thereto to the Issuer in immediately available
funds by wire transfer to the account of the Issuer
maintained at First Union National Bank, Account
Number 2000000560030.
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<PAGE> 45
The Presenting Agent, as the Issuer's agent, will
deliver the Notes (with the written confirmation
provided for above) to the purchaser thereof against
payment by such purchaser in immediately available
funds. Delivery of any confirmation or Note will be
made in compliance with "Delivery of Prospectus"
below.
Fails: In the event that a purchaser shall fail to accept
delivery of and make payment for a Note on the
settlement date, the Presenting Agent will notify the
Trustee or the Designated Agent and the Issuer, by
telephone, confirmed in writing. If the Note has been
delivered to the Presenting Agent, as the Issuer's
agent, the Presenting Agent shall return such Note to
the Trustee, or the Designated Agent. If funds have
been advanced for the purchase of such Note, the
Trustee, or the Designated Agent, will, immediately
upon receipt of such Note contact the Issuer (to the
attention of Michael L. Schwarz or Michael G. Malone
(Fax No. (704) 333-8340) advising the Issuer of such
failure. At such time, the Issuer will refund the
payment previously made by the Presenting Agent in
immediately available funds. Such payments will be
made on the settlement date, if possible, and in any
event not later than the business day following the
settlement date. If such failure shall have occurred
for any reason other than the failure of the
Presenting Agent to provide the Purchase Information
to the Issuer or to provide a confirmation to the
purchaser, the Issuer will reimburse the Presenting
Agent on an equitable basis for its loss of the use
of funds during the period when they were credited to
the account of the Issuer.
Immediately upon receipt of the Note in respect of
which the failure occurred, the Trustee, or the
Designated Agent, will cause the Security Registrar
to make appropriate entries to reflect the fact that
the Note was never issued and will destroy the Note.
Procedure for
Rate Changes: The Issuer and the Agents will discuss from time to
time the price of, and the rates to be borne by, the
Notes that may be sold as a result of the
solicitation of offers by the Agent. Once an Agent
has recorded any indication of interest in Notes upon
certain terms, and communicated with the Issuer, if
the Issuer plans to accept an offer to purchase Notes
upon such terms, it will prepare a Pricing Supplement
to the Prospectus, as then amended or supplemented,
reflecting the terms of such Notes and will arrange
to transmit such Pricing Supplement to the Commission
for filing in accordance with and within the time
prescribed by the applicable paragraph of Rule 424(b)
under the Act. The Issuer will supply at least two
copies of the Prospectus as then amended or
supplemented, and bearing such Pricing Supplement, to
the Presenting Agent. The Issuer shall use its
reasonable best efforts to send such Pricing
Supplement by telecopy or overnight express (for
delivery by the close of business on the
6
<PAGE> 46
applicable trade date, but in no event later than
11:00 a.m. New York City time, on the Business Day
following the applicable trade date) to the
Presenting Agent and the Trustee at the following
applicable address: if to J.P. Morgan Securities
Inc., to Transaction Execution Group, 60 Wall Street,
New York, N.Y. 10260, Telecopy Number (212) 648-5151,
if to First Union Capital Markets, to Debt Syndicate
Group, 301 South College Street, Charlotte, N.C.
28288, Telecopy Number (704) 383-9165, if to Merrill
Lynch & Co, to: Tritech Services, 44B Colonial Drive,
Piscataway, New Jersey 08854, Attention: Prospectus
Operations/Nachman Kimerling, Telecopy Number (732)
885-2774/5/6 for record keeping purposes, one copy of
such Pricing Supplement shall also be mailed to
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated, World Financial Center, North
Tower, 10th floor, New York, N.Y. 10281-1310,
Attention: MTN Product Management, Telecopy Number
(212) 449-2234, and if to Morgan Stanley & Co.
Incorporated, to Medium Term Note Trading Desk--
Carlos Cabrera, 1585 Broadway, 2nd Floor, New York,
N.Y. 10036, Telecopy Number (212)761-0780, and if to
the Trustee, to: First Union National Bank, Corporate
Trust Department-Bond Administration, 230 South Tryon
Street, 9th Floor, Charlotte, N.C. 28288-1179, and
the Designated Agent, if any. In each instance that a
Pricing Supplement is prepared, the Presenting Agent
will provide a copy of such Pricing Supplement to
each investor or purchaser of the relevant Notes or
its agent. Pursuant to Rule 434 of the Securities Act
of 1933, as amended, the Pricing Supplement may be
delivered separately from the Prospectus. No
settlements with respect to Notes upon such terms may
occur prior to such transmitting and such Agent will
not, prior to such transmitting, mail confirmations
to customers who have offered to purchase Notes upon
such terms. After such transmitting, sales, mailing
of confirmations and settlements may occur with
respect to Notes upon such terms, subject to the
provisions of "Delivery of Prospectus" below.
Outdated Pricing Supplements and copies of the
Prospectus to which they are attached (other than
those retained for files), will be destroyed.
Suspension of
Solicitation;
Amendment or
Supplement: As provided in the Agency Agreement, the Issuer
and/or the Company may suspend solicitation of
purchases at any time and, upon receipt of notice
from the Issuer or the Company, the Agents will, as
promptly as practicable, but in no event later than
one business day following such notice, suspend
solicitation until such time as the Issuer or the
Company has advised them that solicitation of
purchases may be resumed. If the Agents receive the
notice from the Issuer or the Company contemplated by
Section 4(d) of the Agency Agreement, they will
promptly suspend
7
<PAGE> 47
solicitation and will only resume solicitation as
provided in the Agency Agreement. If the Issuer or
the Company decides to amend or supplement the
Registration Statement or the Prospectus relating to
the Notes, it will promptly advise the Agents and
will furnish the Agents with the proposed amendment
or supplement in accordance with the terms of the
Agency Agreement. The Issuer will promptly file or
mail to the Commission for filing such amendment or
supplement, provide the Agents with copies of any
such amendment or supplement, confirm to the Agents
that such amendment or supplement has been filed with
the Commission and advise the Agents that
solicitation may be resumed. Any such suspension
shall not affect the Issuer's or the Company's
obligations under the Agency Agreement; and in the
event that at the time the Issuer or the Company
suspends solicitation of purchases there shall be any
offers already accepted by the Issuer outstanding for
settlement, the Issuer will have the sole
responsibility for fulfilling such obligations; the
Agents will make reasonable efforts to assist the
Issuer to fulfill such obligations, but the Agents
will not be obligated to fulfill such obligations.
The Issuer will in addition promptly advise the
Agents and the Trustee, or the Designated Agent, if
such offers are not to be settled and if copies of
the Prospectus as in effect at the time of the
suspension may not be delivered in connection with
the settlement of such offers.
Delivery of
Prospectus: A copy of the Prospectus, as most recently amended or
supplemented on the date of delivery thereof (except
as provided below), must be delivered to a purchaser
prior to or together with the earlier of delivery of
(i) the written confirmation provided for above, and
(ii) any Note purchased by such purchaser at the
following address: if to J.P. Morgan Securities Inc.,
to Transaction Execution Group, 60 Wall Street, New
York, N.Y. 10260, Telecopy Number (212) 648-5151, if
to First Union Capital Markets, to Debt Syndicate
Group, 301 South College Street, Charlotte, N.C.
28288, Telecopy Number (704) 383-9165, if to Merrill
Lynch, Pierce, Fenner & Smith Incorporated, to MTN
Product Management, World Financial Center, New York,
N.Y. 10281, Telecopy Number (212) 449-2234, and if to
Morgan Stanley & Co. Incorporated, to Medium Term
Note Trading Desk-- Carlos Cabrera, 1585 Broadway,
2nd floor, New York, N.Y. 10036, Telecopy Number
(212) 761-0780. The Issuer shall ensure that the
Presenting Agent receives copies of the Prospectus
and each amendment or supplement thereto (including
appropriate Pricing Supplements) in such quantities
and within such time limits as will enable the
Presenting Agent to deliver such confirmation or Note
to a purchaser as contemplated by these procedures
and in compliance with the preceding sentence. If,
since the date of acceptance of a purchaser's offer,
the Prospectus shall have been supplemented solely to
reflect any sale of Notes on terms different from
those agreed to between the Issuer and such purchaser
or a change in posted rates not applicable to such
purchaser, such purchaser shall not
8
<PAGE> 48
receive the Prospectus as supplemented by such new
supplement, but shall receive the Prospectus as
supplemented to reflect the terms of the Notes being
purchased by such purchaser and otherwise as most
recently amended or supplemented on the date of
delivery of the Prospectus.
Authenticity of
Signatures: The Issuer will cause the Trustee, or the Designated
Agent, to furnish the Agent from time to time with
the specimen signatures of each of the officers,
employees or agents of the Trustee, or the Designated
Agent, who have been authorized by the Trustee, or
the Designated Agent, respectively, to authenticate
Notes, but the Agent will have no obligation or
liability to the Issuer or the Trustee, or the
Designated Agent, in respect of the authenticity of
the signature of any officer, employee or agent of
the Issuer or the Trustee, or the Designated Agent,
on any Note.
Advertising Cost: The Issuer and the Company will determine with the
Agent the amount of advertising that may be
appropriate in offering the Notes.
Business Day: "Business Day" means any day (other than a Saturday
or Sunday) on which banking institutions in The City
of New York are open for business (and, (i) with
respect to LIBOR Notes which is also a day on which
dealings in deposits in U.S. dollars are transacted
in the London interbank market, and (ii) with respect
to Notes denominated in a Specified Currency other
than U.S. dollars, on which banking institutions in
the principal financial center of the country of the
Specified Currency are open for business).
9
<PAGE> 49
PART :II ADMINISTRATIVE PROCEDURES FOR GLOBAL NOTE
METHOD OF BOOK-ENTRY NOTES
The following explains the administrative procedures for the Global
Note method of the DTC book-entry system. Any reference to "Book-Entry Notes" in
this Part II refers to the Global Note method (for a discussion of the Master
Note method of the DTC book-entry system, see Part III below). Certain generally
applicable administrative procedures are set forth in Part I above (See
"Issue/Authentication Date", "Price to Public", "Minimum Purchase",
"Authenticity of Signatures", "Advertising Cost", and "Business Day"). In
connection with the qualification of the Book-Entry Notes for eligibility in the
book-entry system maintained by DTC, the Trustee will perform the custodial,
document control and administrative functions described below, in accordance
with its respective obligations under a Letter of Representations (the "Letter")
from the Issuer and the Trustee to DTC dated as of the date hereof, and a
Medium-Term Note Certificate Agreement between the Trustee and DTC and its
obligations as a participant in DTC, including DTC's Same-Day Funds Settlement
System ("SDFS"). Both Fixed and Floating Rate Notes denominated and payable in
U.S. dollars may be issued in book-entry form. Single and Multi-Indexed Notes
may also be issued in book-entry form.
Issuance: On any date of settlement (as defined under
"Settlement" below) for one or more Book-Entry Notes,
the Issuer will issue a single global security in
fully registered form without coupons (a "Global
Note") representing up to $95,000,000 principal
amount of all such Notes that have the same Stated
Maturity, redemption provisions, if any, repayment
provisions, if any, Interest Payment Dates, Original
Issue Date, original issue discount provisions, if
any, and, in the case of Fixed Rate Notes, interest
rate, or in the case of Floating Rate Notes, interest
rate formula, initial interest rate, Index Maturity,
Interest Reset Period, Interest Reset Dates, Spread
or Spread Multiplier (if any), minimum interest rate
(if any) and maximum interest rate (if any) and, in
the case of Fixed Rate Notes or Floating Rate Notes
that are also Currency Indexed Notes, Specified
Currency, Indexed Currency, Face Amount and Base
Exchange Rate and the Base Interest Rate, if any, or
that are also other Indexed Notes, the same terms
(all of the foregoing are collectively referred to as
the "Terms"). Each Global Note will be dated and
issued as of the date of its settlement date, which
will be (i) with respect to an original Global Note
(or any portion thereof), its original issue date,
and (ii) following a consolidation of Global Notes,
the most recent Interest Payment Date to which
interest has been paid or duly provided for on the
predecessor Global Notes, regardless of the date of
authentication of such subsequently issued Global
Note. Each Book-Entry Note will be deemed to have
been dated and issued as of the settlement date,
which date shall be the Original Issue Date. No
Global Note will represent any Certificated Note.
Identification
Numbers: The Issuer has arranged with the CUSIP Service Bureau
of Standard & Poor's Ratings Services (the "CUSIP
Service Bureau") for the reservation
10
<PAGE> 50
of a series of CUSIP numbers consisting of
approximately 900 CUSIP numbers relating to
Book-Entry Notes. The Trustee, the Issuer and DTC
have obtained from the CUSIP Service Bureau a written
list of such reserved CUSIP numbers. The Trustee will
assign CUSIP numbers to Global Notes as described
below under Settlement Procedure "B". DTC will notify
the CUSIP Service Bureau periodically of the CUSIP
numbers that the Trustee has assigned to Global
Notes. The Trustee will notify the Issuer at any time
when fewer than 100 of the reserved CUSIP numbers
remain unassigned to Global Notes, and, if it deems
necessary, the Issuer will reserve additional CUSIP
numbers for assignment to Global Notes representing
Book Entry Notes. Upon obtaining such additional
CUSIP numbers, the Issuer shall deliver a list of
such additional CUSIP numbers to the Trustee and DTC.
Registration: Each Global Note will be issued only in fully
registered form without coupons. Each Global Note
will be registered in the name of Cede & Co., as
nominee for DTC, on the Securities Register
maintained under the Indenture. The beneficial owner
of a Book-Entry Note (or one or more indirect
participants in DTC designated by such owner) will
designate one or more participants in DTC (with
respect to such Note, the "Participants") to act as
agent or agents for such owner in connection with the
book-entry system maintained by DTC, and DTC will
record in book-entry form, in accordance with
instructions provided by such Participants, a credit
balance with respect to such Note in the account of
such Participants. The ownership interest of such
beneficial owner in such Note will be recorded
through the records of such Participants or through
the separate records of such Participants and one or
more indirect participants in DTC.
Transfers: Transfers of a Book-Entry Note will be accomplished
by book entries made by DTC and, in turn, by
Participants (and, in certain cases, one or more
indirect participants in DTC acting on behalf of
beneficial transferors and transferees of such Note.
Exchanges: The Trustee may deliver to DTC and the CUSIP Service
Bureau at any time a written notice of consolidation
(a copy of which shall be attached to the Global Note
resulting from such consolidation) specifying (i) the
CUSIP numbers set forth on two or more outstanding
Global Notes that represent Book-Entry Notes having
the same Terms and for which interest has been paid
to the same date, (ii) a date, occurring at least
thirty days after such written notice is delivered
and at least thirty days before the next Interest
Payment Date for such Book-Entry Notes, on which such
Global Notes shall be exchanged for a single
replacement Global Note and (iii) a new CUSIP number
to be assigned to such replacement Global Note. Upon
receipt of such a notice, DTC will send to its
Participants (including the Trustee) a written
reorganization notice to the effect that such
exchange will occur on such date. Prior to the
specified exchange
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<PAGE> 51
date, the Trustee will deliver to the CUSIP Service
Bureau a written notice setting forth such exchange
date and the new CUSIP number and stating that, as of
such exchange date, the CUSIP numbers of the Global
Notes to be exchanged will no longer be valid. On the
specified exchange date, the Trustee will exchange
such Global Notes for a single Global Note bearing
the new CUSIP number and a new Original Issue Date
and the CUSIP numbers of the exchanged Global Notes
will, in accordance with CUSIP Service Bureau
procedures, be canceled and not immediately
reassigned. Notwithstanding the foregoing, if the
Global Notes to be exchanged exceed $95,000,000 in
aggregate principal amount, one Global Note will be
authenticated and issued to represent each
$95,000,000 of principal amount of the exchanged
Global Notes and an additional Global Note will be
authenticated and issued to represent any remaining
principal amount of such Global Notes (see
"Denominations" below).
Maturities: Each Book-Entry Note will mature on a Business Day
nine months or more from the settlement date for such
Note.
Notice of Repayment Terms: With respect to each Book-Entry Note that is
repayable at the option of the Holder the Trustee
will furnish DTC on the settlement date pertaining to
such Book-Entry Note a notice setting forth the terms
of such repayment option. Such terms shall include
the start date and end dates of the first exercise
period, the purchase date following such exercise
period, the frequency that such exercise periods
occur (i.e., quarterly, semiannually, annually, etc.)
and if the repayment option expires before maturity,
the same information (except frequency) concerning
the last exercise period. It is understood that the
exercise period shall be at least 15 calendar days
long and that the purchase date shall be at least
seven calendar days after the last day of the
exercise period.
Redemption and
Repayment: The Trustee will comply with the terms of the Letter
with regard to redemptions and repayments of the
Notes. If a Global Note is to be redeemed or repaid
in part, the Trustee will exchange such Global Note
for two Global Notes, one of which shall represent
the portion of the Global Note being redeemed or
repaid and shall be canceled immediately after
issuance and the other of which shall represent the
remaining portion of such Global Note and shall bear
the CUSIP number of the surrendered Global Note.
Denominations: Book Entry Notes will be issued in principal amounts
of $1,000 or any amount in excess thereof that is an
integral multiple of $1,000. Global Notes will be
denominated in principal amounts not in excess of
$95,000,000. If one or more Book Entry Notes having
an aggregate principal amount in excess of
$95,000,000 would, but not for the preceding
sentence, be represented by a single Global Note,
then one
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<PAGE> 52
Global Note will be issued to represent each
$95,000,000 principal amount of such Book-Entry Note
or Notes and an additional Global Note will be issued
to represent any remaining principal amount of such
Book-Entry Note or Notes. In such a case, each of the
Global Notes representing such Book-Entry Note or
Notes shall be assigned the same CUSIP number.
Interest: General. Interest on each Book-Entry Note will begin
to accrue from the Original Issue Date of the Global
Note representing such Note or from the most recent
date to which interest has been paid, as the case may
be, in accordance with the terms of the Note, as
described in the Prospectus Supplement (as defined in
the Agency Agreement), as supplemented by the
applicable Pricing Supplement. Standard & Poor's
Ratings Services will use the information received in
the pending deposit message described under the
Settlement Procedure "C" below in order to include
the amount of any interest payable and certain other
information regarding the related Global Note in the
appropriate weekly bond report published by Standard
& Poor's Ratings Services.
Notice of Interest
Payment and Regular
Record Dates: On the first Business Day of [January, April, July
and October] of each year, the Trustee will deliver
to the Issuer and DTC a written list of Regular
Record Dates and Interest Payment Dates that will
occur with respect to Book-Entry Notes during the
six-month period beginning on such first Business
Day. Promptly after each Interest Determination Date
or Calculation Date, as applicable (as defined in or
pursuant to the applicable Note) for Floating Rate
Notes, the Issuer, upon receiving notice thereof,
will notify Standard & Poor's Ratings Services of the
interest rate determined on such Interest
Determination Date or Calculation Date, as
applicable.
Calculation of
Interest: Interest on Fixed Rate Book-Entry Notes (including
interest for partial periods) and interest rates on
Floating Rate Book-Entry Notes will be determined as
set forth in the form of Notes. With respect to
Floating Rate Book-Entry Notes, the Calculation Agent
shall determine the interest for each Interest Reset
Date and communicate such interest rate to the Issuer
and the Issuer will promptly notify the Trustee and
the Paying Agent of each such determination.
Payments of
Principal and
Interest: Promptly after each Regular Record Date, the Trustee
will deliver to the Issuer and DTC a written notice
specifying by CUSIP number the amount of interest to
be paid on each Global Note on the following Interest
Payment Date (other than an Interest Payment Date
coinciding with maturity) and the total of such
amounts. The Issuer will confirm with the
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<PAGE> 53
Trustee the amount payable on each Global Note on
such Interest Payment Date. DTC will confirm the
amount payable on each Global Note on such Interest
Payment Date by reference to the daily or weekly bond
reports published by Standard & Poor's Ratings
Services. The Issuer will pay to the Trustee, as
paying agent, the total amount of interest due on
such Interest Payment Date (other than at maturity),
and the Trustee will pay such amount to DTC at the
times and in the manner set forth below under "Manner
of Payment".
Payments at
Maturity: On or about the first Business Day of each month, the
Trustee will deliver to the Issuer and DTC a written
list of principal and interest to be paid on each
Global Note maturing either at Stated Maturity or on
a Redemption or Repayment Date in the following
month. The Issuer, the Trustee and DTC will confirm
the amounts of such principal and interest payments
with respect to each such Global Note on or about the
fifth Business Day preceding the maturity of such
Global Note. The Issuer will pay to the Trustee, as
paying agent, the principal amount of such Global
Note, together with interest due at such maturity.
The Trustee will pay such amounts to DTC at the times
and in the manner set forth below under "Manner of
Payment". Promptly after payment to DTC of the
principal and interest due at the maturity of such
Global Note, the Trustee will cancel and destroy such
Global Note in accordance with the terms of the
Indenture and deliver a certificate of destruction to
the Issuer.
Manner of Payment: The total amount of any principal and interest due on
Global Notes on any Interest Payment Date or at
maturity shall be paid by the Issuer to the Trustee
in funds available for use by the Trustee as of 9:30
A.M. (New York City time), or as soon as practicable
thereafter on such date. The Issuer will confirm
instructions regarding payment in writing to the
Trustee. Prior to 10:00 A.M. (New York City time) on
each Maturity Date or as soon as possible thereafter,
following receipt of such funds from the Issuer, the
Trustee will pay by separate wire transfer (using
Fedwire message entry instructions in a form
previously specified by DTC) to an account at the
Federal Reserve Bank of New York previously specified
by DTC, in funds available for immediate use by DTC,
each payment of principal (together with interest
thereon) due on Global Notes on any Maturity Date. On
each Interest Payment Date, interest payments shall
be made to DTC in same-day funds in accordance with
existing arrangements between the Trustee and DTC.
Thereafter, on each such date, DTC will pay, in
accordance with its SDFS operating procedures then in
effect, such amounts in funds available for immediate
use to the respective Participants in whose names the
Book-Entry Notes represented by such Global Notes are
recorded in the book-entry system maintained by DTC.
Neither the Issuer nor the Trustee shall have any
direct responsibility or liability for
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<PAGE> 54
the payment by DTC to such Participants of the
principal of and interest on the Book-Entry Notes.
Withholding Taxes: The amount of any taxes required under applicable law
to be withheld from any interest payment on a
Book-Entry Note will be determined and withheld by
the Participant, indirect participant in DTC or other
Person responsible for forwarding payments and
materials directly to the beneficial owner of such
Note.
Acceptance
of Offers: Each Agent will promptly advise the Issuer of each
reasonable offer to purchase Notes received by it,
other than those rejected by such Agent. Each Agent
may, in its discretion reasonably exercised, without
notice to the Issuer, reject any offer received by
it, in whole or in part. The Issuer will have the
sole right to accept offers to purchase Notes and may
reject any such offer, in whole or in part. If the
Issuer rejects an offer, the Issuer will promptly
notify such Agent.
Settlement: The receipt by the Issuer of immediately available
funds in payment for a Book-Entry Note and the
authentication and issuance of the Global Note or
Global Notes representing such Note shall constitute
"settlement" with respect to such Note. All orders
accepted by the Issuer will be settled on the third
Business Day from the date of the sale pursuant to
the timetable for settlement set forth below unless
the Issuer and the purchaser agree to settlement on
another day which shall be no earlier than the next
Business Day.
Settlement
Procedures: Settlement Procedures with regard to each
Book-Entry Note sold by the For Issuer through an
Agent as agent, shall be as follows:
A. For each offer accepted by the Issuer, the
Presenting Agent shall communicate to the
Issuer, Attention: Michael L. Schwarz or
Michael G. Malone (Fax No.:704-333-8340) who
will provide a copy to the Trustee,
Attention: Corporate Trust Department-Bond
Administration (Fax No.: 704-383-7316) and
the Designated Agent, if any, by facsimile
transmission or other acceptable means, the
information set forth below:
1. Principal amount.
2. Maturity Date of Notes.
3. In the case of a Fixed Rate
Book-Entry Note, the interest rate
or, in the case of a Floating Rate
Book-Entry Note, the Interest Rate
Formula, the Initial Interest Rate
(if known at such time), Index
Maturity, Interest Reset Period,
Interest Reset Dates, Spread or
Spread Multiplier (if any),
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<PAGE> 55
Minimum Interest Rate (if any) and
Maximum Interest Rate (if any).
4. Interest Payment Period and
Interest Payment Dates.
5. Redemption provisions, if any.
6. Repayment provisions, if any.
7. Settlement date (Original Issue
Date).
8. Price to public of the Note
(expressed as a percentage).
9. Agent's commission (to be paid in
the form of a discount from the
proceeds remitted to the Issuer
upon settlement).
10. Original issue discount provisions
if any.
11. In the case of Currency Indexed
Notes, the above-listed
information, as applicable, and the
Base Exchange Rate(s), Base
Interest Rate and Indexed
Currencies.
12. In the case of Dual Currency Notes,
the above-listed information, as
applicable, and the Optional
Payment Currency, Designated
Exchange Rate and Optional Election
Dates.
13. Net proceeds to the Issuer.
B. The Trustee will confirm the information set
forth in Settlement Procedure "A" above by
telephone with such Agent and the Issuer.
C. The Trustee will assign a CUSIP number to
the Global Note representing such Note and
will telephone the Issuer and advise the
Issuer of such CUSIP number. The Trustee
will enter a pending deposit message through
DTC's Participant Terminal System, providing
the following settlement information to DTC
(which shall route such information to
Standard & Poor's Ratings Services) and the
Presenting Agent:
1. The applicable information set
forth in Settlement Procedure "A".
2. Identification as a Fixed Rate
Book-Entry Note or a Floating Rate
Book-Entry Note.
3. Initial Interest Payment Date for
such Note, number of days by which
such date succeeds the related DTC
Record Date
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<PAGE> 56
(which, in the case of Floating
Rate Notes which reset daily or
weekly shall be the date five
calendar days immediately preceding
the applicable Interest Payment
Date and in the case of all other
Notes shall be the Regular Record
Date as defined in the Note), the
amount of interest payable on such
Interest Payment Date per $1,000
principal amount of Notes at
Maturity, and amount of interest
payable per $1,000 principal amount
of Notes in the case of Fixed Rate
Notes.
4. CUSIP number of the Global Note
representing such Note.
5. Whether such Global Note will
represent any other Book-Entry Note
(to the extent known at such time).
D. To the extent the Issuer has not already
done so, the Issuer will deliver to the
Trustee a Pricing Supplement in a form that
has been approved by the Issuer and the
Agents. The Issuer will also deliver to the
Trustee a Global Note representing such
Note.
E. The Trustee will complete and authenticate
the Global Note representing such Note.
F. DTC will credit such Note to the Trustee's
participant account at DTC.
G. The Trustee will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC to (i) debit such Note to
the Trustee's participant account and credit
such Note to such Agent's participant
account and (ii) debit such Agent's
settlement account and credit the Trustee's
settlement account for an amount equal to
the price of such Note less such Agent's
commission. The entry of such a deliver
order shall constitute a representation and
warranty by the Trustee to DTC that (i) the
Global Note representing such Book-Entry
Note has been executed, delivered and
authenticated and (ii) the Trustee is
holding such Global Note pursuant to the
relevant Medium-Term Note Certificate
Agreement between the Trustee and DTC.
H. An Agent will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC (i) to debit such Note to
such Agent's participant account and credit
such Note to the participant accounts of the
Participants with respect to such Note and
(ii) to debit the settlement accounts of
such Participants and credit the settlement
account of such Agent for an amount equal to
the price of such Note.
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<PAGE> 57
I. Transfers of funds in accordance with SDFS
deliver orders described in Settlement
Procedures "G" and "H" will be settled in
accordance with SDFS operating procedures in
effect on the settlement date.
J. The Trustee, upon confirming receipt of such
funds in accordance with Settlement
Procedure "G", will wire transfer to the
account of the Issuer maintained at First
Union National Bank, Account Number
2000000560030, in funds available for
immediate use, the amount transferred to the
Trustee in accordance with Settlement
Procedure "G".
K. An Agent will confirm the purchase of such
Note to the purchaser either by transmitting
to the Participants with respect to such
Note a confirmation order or orders through
DTC's institutional delivery system or by
mailing a written confirmation to such
purchaser.
Settlement
Procedure
Timetable: For orders of Book-Entry Notes solicited by the
Agent, as agent, and accepted by the Issuer for
settlement on the first Business Day after the sale
date, Settlement Procedures "A" through "K" set forth
above shall be completed as soon as possible but not
later than the respective times (New York City time)
set forth below:
<TABLE>
<CAPTION>
Settlement
Procedure Time
---------------------------------------------------------
<S> <C>
A 11:00 a.m. on the sale date
B 12:00 noon on the sale date
C 2:00 p.m. on the sale date
D 3:00 p.m. on the day before
settlement
E 9:00 a.m. on settlement date
F 10:00 a.m. on settlement date
G-H 2:00 p.m. on settlement date
I 4:45 p.m. on settlement date
J-K 5:00 p.m. on settlement date
</TABLE>
If a sale is to be settled two Business Days after
the sale date, Settlement Procedures "A", "B" and "C"
shall be completed as soon as practicable but not
later than 11:00 a.m., 12:00 noon and 2:00 p.m., as
the case may be, on the first Business Day after the
sale date.
If a sale is to be settled more than two Business
Days after the sale date, Settlement Procedure "A"
shall be completed as soon as practicable but no
18
<PAGE> 58
later than 11:00 a.m. on the first Business Day after
the sale date and Settlement Procedures "B" and "C"
shall be completed as soon as practicable but no
later than 12:00 noon and 2:00 p.m., as the case may
be, on the second Business Day before the settlement
date. If the initial interest rate for a Floating
Rate Book-Entry Note has not been determined at the
time that Settlement Procedure "A" is completed,
Settlement Procedures "B" and "C" shall be completed
as soon as such rate has been determined but not
later than 12:00 noon and 2:00 p.m., respectively, on
the Business Day before the settlement date.
Settlement Procedure "I" is subject to extension in
accordance with any extension of Fedwire closing
deadlines and in the other events specified in the
SDFS operating procedures in effect on the settlement
date.
If settlement of a Book-Entry Note is rescheduled or
canceled, the Trustee, upon receipt of notice from
the Issuer, will deliver to DTC, through DTC's
Participant Terminal System, a cancellation message
to such effect by no later than 2:00 p.m. on the
Business Day immediately preceding the scheduled
settlement date.
Failure to Settle: If an Agent or Trustee fails to
enter an SDFS deliver order with respect to a
Book-Entry Note pursuant to Settlement Procedure "G",
the Trustee may deliver to DTC, through DTC's
Participant Terminal System, as soon as practicable,
a withdrawal message instructing DTC to debit such
Note to the Trustee's participant account. DTC will
process the withdrawal message, provided that the
Trustee's participant account contains a principal
amount of the Global Note representing such Note that
is at least equal to the principal amount to be
debited. If a withdrawal message is processed with
respect to all the Book-Entry Notes represented by a
Global Note, the Trustee will mark such Global Note
"canceled", make appropriate entries in its records
and send such canceled Global Note to the Issuer. The
CUSIP number assigned to such Global Note shall, in
accordance with CUSIP Service Bureau procedures, be
canceled and not immediately reassigned. If a
withdrawal message is processed with respect to one
or more, but not all, of the Book-Entry Notes
represented by a Global Note, the Trustee will
exchange such Global Note for two Global Notes, one
of which shall represent such Book-Entry Note or
Notes and shall be canceled immediately after
issuance and the other of which shall represent the
remaining Book-Entry Notes previously represented by
the surrendered Global Note and shall bear the CUSIP
number of the surrendered Global Note.
If the purchase price for any Book-Entry Note is not
timely paid to the Participants with respect to such
Note by the beneficial purchaser thereof (or a
person, including an indirect participant in DTC,
acting on behalf of such purchaser), such
Participants and, in turn, the Presenting Agent may
enter SDFS deliver orders through DTC's Participant
Terminal system
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reversing the orders entered pursuant to Settlement
Procedures "G" and "H", respectively. Thereafter, the
Trustee will deliver the withdrawal message and take
the applicable related actions described in the
preceding paragraph. If such failure shall have
occurred for any reason other than the failure of the
Presenting Agent to provide the Purchase Information
to the Issuer or to provide a confirmation to the
purchaser, the Issuer will reimburse the Presenting
Agent on an equitable basis for its loss of the use
of funds during the period when they were credited to
the account of the Issuer.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note, DTC may
take any actions in accordance with its SDFS
operating procedures then in effect. In the event of
a failure to settle with respect to one or more, but
not all, of the Book-Entry Notes to have been
represented by a Global Note, the Trustee will
provide, in accordance with Settlement Procedures "D"
and "E", for the authentication and issuance of a
Global Note representing the other Book-Entry Notes
to have been represented by such Global Note and will
make appropriate entries in its records.
Procedure for
Rate Changes: The Issuer and each Agent will discuss from time to
time the price of, and the rates to be borne, by the
Notes that may be sold as a result of the
solicitation of offers by any Agent. Once an Agent
has recorded any indication of interest in Notes upon
certain terms, and communicated with the Issuer, if
the Issuer plans to accept an offer to purchase Notes
upon such terms, it will prepare a Pricing Supplement
to the Prospectus, as then amended or supplemented,
reflecting the terms of such Notes and will arrange
to transmit such Pricing Supplement to the Commission
for filing in accordance with and within the time
prescribed by the applicable paragraph of Rule 424(b)
under the Act. The Issuer will supply at least two
copies of the Prospectus as then amended or
supplemented, and bearing such Pricing Supplement, to
the Presenting Agent. The Issuer shall use its
reasonable best efforts to send such Pricing
Supplement by telecopy or overnight express (for
delivery by the close of business on the applicable
trade date, but in no event later than 11:00 a.m. New
York City time, on the Business Day following the
applicable trade date) to the Presenting Agent and
the Trustee at the following applicable address: if
to J.P. Morgan Securities Inc., to Transaction
Execution Group, 60 Wall Street, New York, N.Y.
10260, Telecopy Number (212) 648-5151, if to First
Union Capital Markets, to Debt Syndicate Group, 301
South College Street, Charlotte, N.C. 28288, Telecopy
Number (704) 383-9165, if to Merrill Lynch & Co, to:
Tritech Services, 44B Colonial Drive, Piscataway, New
Jersey 08854, Attention: Prospectus
Operations/Nachman Kimerling, Telecopy Number (732)
885-2774/5/6 for record keeping purposes, one copy of
such Pricing Supplement shall
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<PAGE> 60
also be mailed to Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated, World Financial
Center, North Tower, 10th floor, New York, N.Y.
10281-1310, Attention: MTN Product Management,
Telecopy Number (212) 449-2234, and if to Morgan
Stanley & Co. Incorporated, to Medium Term Note
Trading Desk - Carlos Cabrera, 1585 Broadway, 2nd
floor, New York, N.Y. 10036, Telecopy Number
(212)761-0780, and if to the Trustee, to: Corporate
Trust Department-Bond Administration, 230 South Tryon
Street, 9th Floor, Charlotte, N.C. 28288-1179,
Telecopy Number (704) 383-7316. In each instance that
a Pricing Supplement is prepared, the Presenting
Agent will provide a copy of such Pricing Supplement
to each investor or purchaser of the relevant Notes
or its agent. Pursuant to Rule 434 of the Securities
Act of 1933, as amended, the Pricing Supplement may
be delivered separately from the Prospectus. No
settlements with respect to Notes upon such terms may
occur prior to such transmitting and such Agent will
not, prior to such transmitting, mail confirmations
to customers who have offered to purchase Notes upon
such terms. After such transmitting, sales, mailing
of confirmations and settlements may occur with
respect to Notes upon such terms, subject to the
provisions of "Delivery of Prospectus" below.
Outdated Stickers, and copies of the Prospectus to
which they are attached (other than those retained
for files), will be destroyed.
Suspension of
Solicitation;
Amendment or
Supplement: As provided in the Agency Agreement, the Issuer may
suspend solicitation of purchase at any time, and,
upon receipt of notice from the Issuer or the
Company, the Agents will as promptly as practicable,
but in no event later than one Business Day following
such notice, suspend solicitation until such time as
the Issuer has advised them that solicitation of
purchases may be resumed.
If the Agents receive the notice from the Issuer or
the Company contemplated by Section 4(d) of the
Agency Agreement, they will promptly suspend
solicitation and will only resume solicitation as
provided in the Agency Agreement. If the Issuer or
the Company decides to amend or supplement the
Registration Statement or the Prospectus relating to
the Notes, it will promptly advise the Agents and
will furnish the Agents with the proposed amendment
or supplement in accordance with the terms of the
Agency Agreement. The Issuer will promptly file or
mail to the Commission for filing such amendment or
supplement, provide the Agents with copies of any
such amendment or supplement, confirm to the Agents
that such amendment or supplement has been filed with
the Commission and advise the Agents that
solicitation may be resumed. Any such suspension
shall not affect the Issuer's obligations under the
Agency Agreement; and in the event that at the time
the Issuer or the Company
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<PAGE> 61
suspends solicitation of purchases there shall be any
offers already accepted by the Issuer outstanding for
settlement, the Issuer will have the sole
responsibility for fulfilling such obligations; the
Agents will make reasonable efforts to assist the
Issuer to fulfill such obligations, but the Agents
will not be obligated to fulfill such obligations.
The Issuer will in addition promptly advise the
Agents and the Trustee if such offers are not to be
settled and if copies of the Prospectus as in effect
at the time of the suspension may not be delivered in
connection with the settlement of such offers.
Delivery of
Prospectus: A copy of the Prospectus, as most recently amended or
supplemented on the date of delivery thereof (except
as provided below), must be delivered to a purchaser
prior to or together with the earlier of delivery of
(i) the written confirmation provided for above, and
(ii) any Note purchased by such purchaser at the
following address: if to J.P. Morgan Securities Inc.,
to Transaction Execution Group, 60 Wall Street, New
York, N.Y. 10260, Telecopy Number (212) 648-5151, if
to First Union Capital Markets, to Debt Syndicate
Group, 301 South College Street, Charlotte, N.C.
28288, Telecopy Number (704) 383-9165, if to Merrill
Lynch, Pierce, Fenner & Smith Incorporated, to MTN
Product Management, World Financial Center, New York,
N.Y. 10281, Telecopy Number (212) 449-2234, and if to
Morgan Stanley & Co. Incorporated, to Medium Term
Note Trading Desk--Carlos Cabrera, 1585 Broadway, 2nd
floor, New York, N.Y. 10036, Telecopy Number (212)
761-0780. The Issuer shall ensure that the Presenting
Agent receives copies of the Prospectus and each
amendment or supplement thereto (including
appropriate Pricing Supplements) in such quantities
and within such time limits as will enable the
Presenting Agent to deliver such confirmation or Note
to a purchaser as contemplated by these procedures
and in compliance with the preceding sentence. If,
since the date of acceptance of a purchaser's offer,
the Prospectus shall have been supplemented solely to
reflect any sale of Notes on terms different from
those agreed to between the Issuer and such purchaser
or a change in posted rates not applicable to such
purchaser, such purchaser shall not receive the
Prospectus as supplemented by such new supplement,
but shall receive the Prospectus as supplemented to
reflect the terms of the Notes being purchased by
such purchaser and otherwise as most recently amended
or supplemented on the date of delivery of the
Prospectus.
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<PAGE> 62
PART III: ADMINISTRATIVE PROCEDURES FOR MASTER NOTE
METHOD OF BOOK-ENTRY NOTES
The following explains the administrative procedures for the Master
Note method of the DTC book-entry system. Any reference to "Book-Entry Notes" in
this Part III refers to the Master Note method (for a discussion of the Global
Note method of the book-entry system, see Part II above). (Certain generally
applicable administrative procedures are set forth in Part I above. See
"Issue/Authentication Date", "Price to Public", "Minimum Purchase",
"Authenticity of Signatures", "Advertising Cost", and "Business Day"). In
connection with the qualification of the Book-Entry Notes for eligibility in the
book-entry system maintained by DTC, the Trustee will perform the custodial,
document control and administrative functions described below, in accordance
with its respective obligations under a Letter of Representations (the "Letter")
from the Issuer and the Trustee to DTC dated as of the date hereof, and a
Medium-Term Note Certificate Agreement between the Trustee and DTC and its
obligations as a participant in DTC, including DTC's Same-Day Funds Settlement
System ("SDFS"). Both Fixed and Floating Rate Notes denominated and payable in
U.S. dollars may be issued in book-entry form. Single and Multi-Indexed Notes
may also be issued in book-entry form.
Issuance: On or before any date of settlement (as defined under
"Settlement" below) for one or more Book-Entry Notes
represented by one or more Master Notes, the Issuer
will deliver one or more Pricing Supplements (with a
Prospectus and a Prospectus Supplement attached
thereto unless previously delivered to the Trustee)
to the Trustee identifying each issue of Book-Entry
Notes that have the same Stated Maturity, redemption
provisions, if any, Interest Payment Dates, Original
Issue Date, original issue discount provisions, if
any, and, in the case of Fixed Rate Notes, interest
rate, or, in case of Floating Rate Notes, interest
rate formula, initial interest rate, Index Maturity,
Interest Reset Period, Interest Reset Dates, Spread
or Spread Multiplier (if any), minimum interest rate
(if any) and maximum interest rate (if any) and, in
the case of Fixed Rate Notes or Floating Rate Notes
that are also Currency Indexed Notes, Specified
Currency, Indexed Currency, Face Amount and Base
Exchange Rate and the Base Interest Rate, if any, or
that are also Other Indexed Notes, the same terms
(all of the foregoing are collectively referred to as
the "Terms"). Each Pricing Supplement shall be
accompanied by a letter from the Issuer (i) advising
the Trustee that as of the date of such letter, the
Issuer has issued Notes pursuant to the Indenture
having the Terms specified in such Pricing
Supplement, (ii) confirming that such Notes are debt
obligations of the Issuer referred to and evidenced
by the Master Note registered in the name of Cede &
Co., as nominee for DTC and (iii) requesting the
Trustee to make an appropriate entry identifying such
debt obligations on the records of the Issuer
maintained by the Trustee. Each Book-Entry Note will
be deemed to have been dated and issued as of the
settlement date, which date shall be the Original
Issue Date. No Master Note will represent any
Certificated Note.
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Identification
Numbers: The Issuer has arranged with the CUSIP Service Bureau
of Standard & Poor's Ratings Services (the "CUSIP
Service Bureau") for the reservation of a series of
CUSIP numbers, consisting of approximately 900 CUSIP
numbers relating to Book-Entry Notes. The Trustee,
the Issuer and DTC have obtained from the CUSIP
Service Bureau a written list of such reserved CUSIP
numbers. The Trustee will assign CUSIP numbers to
each issue of Book-Entry Notes identified by a
Pricing Supplement as described below under
Settlement Procedure "B". DTC will notify the CUSIP
Service Bureau periodically of the CUSIP numbers that
the Trustee has assigned to each issue of Book-Entry
Notes. The Trustee will notify the Issuer at any time
when fewer than 100 of the reserved CUSIP numbers
remain unassigned to issue of Book-Entry Notes, and,
if it deems necessary, the Issuer will reserve
additional CUSIP numbers for assignment to issues of
Book-Entry Notes. Upon obtaining such additional
CUSIP numbers, the Issuer shall deliver a list of
such additional CUSIP numbers to the Trustee and DTC.
Registration: The Master Note representing the Book-Entry Notes
will be issued only in fully registered form without
coupons. The Master Note will be registered in the
name of Cede & Co., as nominee for DTC, on the
Securities Register maintained under the Indenture.
The beneficial owner of a Book-Entry Note (or one or
more indirect participants in DTC designated by such
owner) will designate one or more direct participants
in DTC (with respect to such Book-Entry Note, the
"Participants") to act as agent or agents for such
owner in connection with the book-entry system
maintained by DTC, and DTC will record in book-entry
form, in accordance with instructions provided by
such Participants, a credit balance with respect to
such Note in the account of such Participants. The
ownership interest of such beneficial owner in such
Book-Entry Note will be recorded through the records
of such Participants or through the separate records
of such Participants and one or more indirect
participants in DTC.
Transfers: Transfers of a Book-Entry Note will be accomplished
by book entries made by DTC and, in turn, by
Participants (and, in certain cases, one or more
indirect participants in DTC) acting on behalf of
beneficial transferors and transferees of such Note.
Exchanges: The Trustee may deliver to DTC and the CUSIP Service
Bureau at any time a written notice of consolidation
specifying (i) the CUSIP numbers set forth on two or
more Pricing Supplements that identify issues of
Book-Entry Notes having the same Terms and for which
interest has been paid to the same date, (ii) a date,
occurring at least thirty days after such written
notice is delivered and at least thirty days before
the next Interest Payment Date for such issues of
Book-Entry Notes, and (iii) a new CUSIP number
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to be assigned to such issues of Book-Entry Notes
having the same terms. Upon receipt of such a notice,
DTC will send to its Participants (including the
Trustee) a written reorganization notice to the
effect that such exchange will occur on such date.
Prior to the specified exchange date, the Trustee
will deliver to the CUSIP Service Bureau a written
notice setting forth such exchange date and the new
CUSIP number and stating that, as of such exchange
date, the CUSIP numbers of the relevant issues of
Book-Entry Notes will no longer be valid. On the
specified exchange date, the CUSIP numbers of the
relevant issues of Book-Entry Notes will, in
accordance with CUSIP Service Bureau procedures, be
canceled and not immediately reassigned.
Maturities: Each Issue of Book-Entry Notes will mature on a
Business Day nine months or more from the settlement
date for such issue of Book-Entry Notes.
Notice of
Repayment: With respect to each Book-Entry Note that is
repayable at the option of the Holder the Trustee
will furnish DTC on the settlement date pertaining to
such Book-Entry Note a notice setting forth the terms
of such repayment option. Such terms shall include
the start date and end dates of the first exercise
period, the purchase date following such exercise
period, the frequency that such exercise periods
occur (i.e., quarterly, semiannually, annually,
etc.) and if the repayment option expires before
maturity, the same information (except frequency)
concerning the last exercise period. It is understood
that the exercise period shall be at least 15
calendar days long and that the purchase date shall
be at least seven calendar days after the last day of
the exercise period.
Redemption and
Repayment: The Trustee will comply with the terms of the Letter
with regard to redemptions and repayments of the
Notes. If an issue of Book-Entry Notes is to be
redeemed or repaid in part, the Trustee will make
appropriate entries in its records to reflect the
remaining portion of such issue of Book Entry Notes,
which portion shall bear the same CUSIP number as
prior to the redemption or repayment, as the case may
be.
Denominations: Book-Entry Notes will be issued in principal amounts
of $1,000 or any amount in excess thereof that is an
integral multiple of $1,000.
Interest: General. Interest on each Book-Entry Note will begin
to accrue from the Original Issue Date of an issue of
Book-Entry Notes or from the most recent date to
which interest has been paid, as the case may be, and
will be calculated and paid in the manner described
in the Prospectus Supplement (as defined in the
Agency Agreement), as supplemented by the applicable
Pricing Supplement. Standard & Poor's Ratings
Services will use the information received in the
pending deposit message described under the
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<PAGE> 65
Settlement Procedure "C" below in order to include
the amount of any interest payable and certain other
information regarding the related issue of Book-Entry
Notes in the appropriate weekly bond report published
by Standard & Poor's Ratings Services.
Notice of Interest
Payment and Regular
Record Dates: On the first Business Day of January, April, July and
October of each year, the Trustee will deliver to the
Issuer and DTC a written list of Regular Record Dates
and Interest Payment Dates that will occur with
respect to Book-Entry Notes during the six-month
period beginning on such first Business Day. Promptly
after each Interest Determination Date or Calculation
Date, as applicable (as set forth in the Prospectus
Supplement, as supplemented by the applicable Pricing
Supplement and pursuant to the applicable Note) for
Floating Rate Notes, the Issuer, upon receiving
notice thereof, will notify Standard & Poor's Ratings
Services of the interest rate determined on such
Interest Determination Date or Calculation Date, as
applicable.
Calculation of
Interest: Interest on Fixed Rate Book-Entry Notes (including
interest for partial periods) and interest rates on
Floating Rate Book-Entry Notes will be determined as
set forth in the Prospectus Supplement, as
supplemented by the applicable Pricing Supplement,
and pursuant to the applicable form of Notes. With
respect to Floating Rate Book-Entry Notes, the
Calculation Agent shall determine the interest for
each Interest Reset Date and communicate such
interest rate to the Issuer and the Issuer will
promptly notify the Trustee and the Paying Agent of
each such determination.
Payments of Principal
and Payment of Interest
Only Interest: Promptly after each Regular Record Date, the Trustee
will deliver to the Issuer and DTC a written notice
specifying by CUSIP number the amount of interest to
be paid on each issue of Book-entry Notes on the
following Interest Payment Date (other than an
Interest Payment Date coinciding with maturity) and
the total of such amounts. The Issuer will confirm
with the Trustee the amount payable on each issue of
Book-Entry Notes on such Interest Payment Date. DTC
will confirm the amount payable on each issue of
Book-Entry Notes on such Interest Payment Date by
reference to the daily or weekly bond reports
published by Standard & Poor's Ratings Services. The
Issuer will pay to the Trustee, as paying agent, the
total amount of interest due on such Interest Payment
Date (other than the maturity), and the Trustee will
pay such amount to DTC at the times and in the manner
set forth below under "Manner of Payment".
Payments at Maturity. On or about the first Business
Day of each month, the Trustee will deliver to the
Issuer and DTC a written list of principal
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<PAGE> 66
and interest to be paid on each issue of Book-Entry
Notes represented by a single CUSIP number maturing
either at Stated Maturity or on a Redemption or
Repayment Date in the following month. The Issuer,
the Trustee and DTC will confirm the amounts of such
principal and interest payments with respect to each
such issue of Book-Entry Notes on or about the fifth
Business Day preceding the maturity of such issue of
Book-Entry Notes. The Issuer will pay to the Trustee,
as paying agent, the principal amount of each issue
of Book-Entry Notes identified by a single CUSIP
number, together with interest due at such maturity.
The Trustee will pay such amounts to DTC at the times
and in the manner set forth below under "Manner of
Payment". Promptly after payment to DTC of the
principal and interest due at the maturity of each
issue of Book-Entry Notes, the Trustee will reduce
the principal amount of the Master Note representing
the issue of Book-Entry Notes and so advise the
Issuer.
Manner of Payment. The total amount of any principal
and interest due on each issue of Book-Entry Notes
identified by a single CUSIP number on any Interest
Payment Date or at maturity shall be paid by the
Issuer to the Trustee in funds available for use by
the Trustee as of 9:30 A.M. (New York City time), or
as soon as practicable thereafter on such date. The
Issuer will confirm instructions regarding payment in
writing to the Trustee. Prior to 10:00 A.M. (New York
City time) on each Maturity Date or as soon as
possible thereafter, following receipt of such funds
from the Issuer, the Trustee will pay by separate
wire transfer (using Fedwire message entry
instructions in a form previously specified by DTC)
to an account at the Federal Reserve Bank of New York
previously specified by DTC, in funds available for
immediate use by DTC, each payment of principal
(together with interest thereon) due on each issue of
Book-Entry Notes on any Maturity Date. On each
Interest Payment Date, interest payments shall be
made to DTC in same-day funds in accordance with
existing arrangements between the Trustee and DTC.
Thereafter, on each such date, DTC will pay, in
accordance with its SDFS operating procedures then in
effect, such amounts in funds available for immediate
use to the respective Participants in whose names the
Book-Entry represented by the Master Note are
recorded in the book-entry system maintained by DTC.
Neither the Issuer nor the Trustee shall have any
direct responsibility or liability for the payment by
DTC to such Participants of the principal of and
interest on the Book-Entry Notes.
Withholding Taxes. The amount of any taxes required
under applicable law to be withheld from any interest
payment on a Book-Entry Note will be determined and
withheld by the Participant, indirect participant in
DTC or other Person responsible for forwarding
payments and materials directly to the beneficial
owner of such Note.
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<PAGE> 67
Acceptance
of Offers: Each Agent will promptly advise the Issuer of each
reasonable offer to purchase Notes received by it,
other than those rejected by the Agent. Such Agent
may, in its discretion reasonably exercised, without
notice to the Issuer, reject any offer received by
it, in whole or in part. The Issuer will have the
sole right to accept offers to purchase Notes and may
reject any such offer, in whole or in part. If the
Issuer rejects an offer, the Issuer will promptly
notify such Agent.
Settlement: The receipt by the Issuer of immediately available
funds in payment for a Book-Entry Note and receipt by
the Trustee of a property completed by the Trustee of
a properly completed Pricing Supplement shall
constitute "settlement" with respect to such
Book-Entry Note. All orders accepted by the Issuer
will be settled on the third Business Day from the
date of the sale pursuant to the timetable for
settlement set forth below unless the Issuer and the
purchaser agree to settlement on another day which
shall be no earlier than the next Business Day.
Settlement
Procedures: Settlement Procedures with regard to each Book-Entry
Note sold by the Issuer through an Agent as agent,
shall be as follows:
A. For each offer accepted by the Issuer, the
Presenting Agent shall communicate to the
Issuer, Attention: Michael L. Schwarz or
Michael G. Malone (Fax No.: 704-333-8340)
who will provide a copy to the Trustee,
Attention: Corporate Trust Department (Fax
No.: (704) 383-7316), and the Designated
Agent, if any, by facsimile transmission or
other acceptable means, the information set
forth below:
1. Principal amount.
2. Maturity Date of Notes.
3. In the case of a Fixed Rate Book-Entry Note,
the interest rate or, in the case of a
Floating Rate Book-Entry Note, the interest
rate formula, the Initial Interest Rate (if
known at such time), Index Maturity,
Interest Reset Period, Interest Reset Dates,
Spread or Spread Multiplier (if any),
minimum interest rate (if any) and maximum
interest rate (if any).
4. Interest Payment Period and Interest Payment
Dates.
5. Redemption provisions, if any.
6. Repayment provisions, if any.
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7. Settlement date (Original Issue Date).
8. Price to public of the Note (expressed as a
percentage).
9. Agent's commission (to be paid in the form
of a discount from the proceeds remitted to
the Issuer upon settlement).
10. Original issue discount provisions if any.
11. In the case of Currency Indexed Notes, the
above-listed information, as applicable, and
the Base Exchange Rate(s), Base Interest
Rate and Indexed Currencies.
12. In the case of Dual Currency Notes, the
above-listed information, as applicable, and
the Optional Payment Currency, Designated
Exchange Rate and Optional Election Dates.
13. Net proceeds to the Issuer.
B. The Trustee will confirm the information set forth in
Settlement Procedure "A" above by telephone with such
Agent and the Issuer.
C. The Trustee will assign a CUSIP number to the issue
of Book-Entry Notes and will telephone the Issuer and
notify the Issuer of such CUSIP number. The Trustee
will enter a pending deposit message through DTC's
Participant Terminal System, providing the following
settlement information to DTC (which shall route such
information to Standard & Poor's Ratings Services)
and the Presenting Agent:
1. The applicable information set forth in
Settlement Procedure "A".
2. Identification as a Fixed Rate Book-Entry
Note or a Floating Rate Book-Entry Note.
3. Initial Interest Payment Date for each issue
of Book-Entry Notes of days by which such
date succeeds the related DTC Record Date
(which, in the case of Floating Rate Notes
which reset daily or weekly shall be the
date five calendar days immediately
preceding the applicable Interest Payment
Date and in the case of all other Notes
shall be the Regular Record Date as defined
in the Prospectus Supplement), the amount of
interest payable on such Interest Payment
Date per $1,000 principal amount of Notes at
Maturity, and amount of interest payable per
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$1,000 principal amount of Notes in the case
of Fixed Rate Notes.
4. CUSIP number of the such issue of Book-Entry
Notes.
5. Whether such CUSIP number will identify any
other issue of Book-Entry Notes (to the
extent known at such time).
D. To the extent the Issuer has not already done so, the
Issuer will deliver to the Trustee a Pricing
Supplement in a form that has been approved by the
Issuer and the Agents and a letter advising of the
relevant Issuance.
E. DTC will credit such Book-Entry Notes to the
Trustee's participant account at DTC.
F. The Trustee will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC to
(i) debit such Book-Entry Notes to the Trustee's
participant account and credit such Book-Entry Notes
to such Agent's participant account and (ii) debit
such Agent's settlement account and credit the
Trustee's settlement account for an amount equal to
the price of such Book-Entry Notes less such Agent's
commission. The entry of such a deliver order shall
constitute a representation and warranty by the
Trustee to DTC that (i) such Book-Entry Notes have
been executed, delivered and authenticated and (ii)
the Trustee is holding the Master Note representing
such Book-Entry Notes pursuant to the relevant
Medium-Term Note Certificate Agreement between the
Trustee and DTC.
G. An Agent will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC (i)
to debit such Note to such Agent's participant
account and credit such Note to the participant
accounts of the Participants with respect to such
Note and (ii) to debit the settlement accounts of
such Participants and credit the settlement account
of such Agent for an amount equal to the price of
such Note.
H. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures "F" and "G"
will be settled in accordance with SDFS operating
procedures in effect on the settlement date.
I. The Trustee, upon confirming receipt of such funds in
accordance with Settlement Procedure "F", will wire
transfer to the account of the Issuer maintained at
First Union National Bank, Account Number
2000000560030, in funds available for immediate use,
the
30
<PAGE> 70
amount transferred to the Trustee in accordance with
Settlement Procedure "F".
J. An Agent will confirm the purchase of such Note to
the purchaser either by transmitting to the
Participants with respect to such Note a confirmation
order or orders through DTC's institutional delivery
system or by mailing a written confirmation to such
purchaser.
Settlement
Procedures
Timetable: For orders of Book-Entry Notes solicited by an Agent,
as agent, and accepted by the Issuer for settlement
on the first Business Day after the sale date,
Settlement Procedures "A" through "J" set forth above
shall be completed as soon as possible but not later
than the respective times (New York City time) set
forth below:
<TABLE>
<CAPTION>
Settlement
Procedure Time
---------------------------------------
<S> <C>
A 11:00 a.m. on the sale date
B 12:00 noon on the sale date
C 2:00 p.m. on the sale date
D 3:00 p.m. on the day before
settlement
E 9:00 a.m. on sett1ement date
F-G 2:00 p.m. on settlement date
H 4:45 p.m. on settlement date
I-J 5:00 p.m. on settlement date
</TABLE>
If a sale is to be settled two Business Days after
the sale date, Settlement Procedures "A", "B" and "C"
shall be completed as soon as practicable but not
later than 11:00 a.m., 12:00 noon and 2:00 p.m., as
the case may be, on the first Business Day after the
sale date.
If a sale is to be settled more than two Business
Days after the sale date, Settlement Procedure "A"
shall be completed as soon as practicable but no
later than 11:00 a.m. on the first Business Day after
the sale date and Settlement Procedures "B" and "C"
shall be completed as soon as practicable but no
later than 12:00 noon and 2:00 p.m., as the case may
be, on the second Business Day before the settlement
date. If the initial interest rate for a Floating
Rate Book-Entry Note has not been determined at the
time that Settlement Procedure "A" is completed,
Settlement Procedures "B" and "C" shall be completed
as soon as such rate has been determined but not
later than 12:00 noon and 2:00 p.m., respectively, on
the Business Day before the settlement date.
Settlement Procedure "H" is subject to extension in
accordance with any extension of Fedwire closing
deadlines and in the other events specified in the
SDFS operating procedures in effect on the settlement
date.
31
<PAGE> 71
If settlement of a Book-Entry Note is rescheduled or
canceled, the Trustee, upon receipt of notice from
the Issuer, will deliver to DTC, through DTC's
Participant Terminal System, a cancellation message
to such effect by no later than 2:00 p.m. on the
Business Day immediately preceding the scheduled
settlement date.
Failure to Settle: If an Agent or Trustee fails to enter an SDFS deliver
order with respect to a Book-Entry Note pursuant to
Settlement Procedure "F", the Trustee may deliver to
DTC, through DTC's Participant Terminal System, as
soon as practicable, a withdrawal message instructing
DTC to debit such note to the Trustee's participant
account. DTC will process the withdrawal message,
provided that the Trustee's participant account
contains a principal amount of Book-Entry Notes
represented by the Master Note that is at least equal
to the principal amount to be debited. If a
withdrawal message is processed with respect to all
the Book-Entry Notes identified by a single CUSIP
number, the Trustee will advise the Issuer and will
make appropriate entries in its records. The CUSIP
number assigned to such issue of Book-Entry Notes
shall, in accordance with CUSIP Service Bureau
procedures, be canceled and not immediately
reassigned. If a withdrawal message is processed with
respect to one or more, but not all, of the issue of
Book-Entry Notes identified by a single CUSIP number,
the Trustee will advise the Issuer and will make
appropriate entries in its records.
If the purchase price for any Book-Entry Note is not
timely paid to the Participants with respect to such
Note by the beneficial purchaser thereof (or a
person, including an indirect participant in DTC,
acting on behalf of such purchaser), such
Participants and, in turn, the Presenting Agent may
enter SDFS deliver orders through DTC's Participant
Terminal system reversing the orders entered pursuant
to Settlement Procedures "F" and "G", respectively.
Thereafter, the Trustee will deliver the withdrawal
message and take the applicable related actions
described in the preceding paragraph. If such failure
shall have occurred for any reason other than the
failure by the Presenting Agent to provide the
Purchase Information to the Issuer or to provide a
confirmation to the purchaser, the Issuer will
reimburse the Presenting Agent on an equitable basis
for its loss of the use of the funds during the
period when they were credited to the account of the
Issuer.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note, DTC may
take any actions in accordance with its SDFS
operating procedures then in effect.
Periodic Statements
from the Trustee: Periodically, the Trustee will send to the Issuer a
statement setting forth the principal amount of
Book-Entry Notes outstanding as of that date and
32
<PAGE> 72
setting forth a brief description of any sales of
Book-Entry Notes of which the Issuer has advised the
Trustee but which have not yet been settled.
Procedure for Rate
Changes: The Issuer and each Agent will discuss from time to
time the price of, and the rates to be borne by the
Notes that may be sold as a result of the
solicitation of offers by any Agent. Once an Agent
has recorded any indication of interest in Notes upon
certain terms, and communicated with the Issuer, if
the Issuer plans to accept an offer to purchase Notes
upon such terms, it will prepare a Pricing Supplement
to the Prospectus, as then amended or supplemented,
reflecting the terms of such Notes and will arrange
to transmit such Pricing Supplement to the Commission
for filing in accordance with and within the time
prescribed by the applicable paragraph of Rule 424(b)
under the Act. The Issuer will supply at least two
copies of the Prospectus as then amended or
supplemented, and bearing such Pricing Supplement, to
the Presenting Agent. No settlements with respect to
Notes upon such terms may occur prior to such
transmitting and such Agent will not, prior to such
transmitting, mail confirmations to customers who
have offered to purchase Notes upon such terms. After
such transmitting, sales and mailing of confirmations
and settlements may occur with respect to Notes upon
such terms, subject to the provisions of "Delivery of
Prospectus" below.
Outdated Stickers, and copies of the Prospectus to
which they are attached (other than those retained
for files), will be destroyed.
Suspension of
Solicitation;
Amendment or
Supplement: As provided in the Agency Agreement, the Issuer may
suspend solicitation of purchase at any time, and,
upon receipt of notice from the Issuer or the
Company, the Agents will as promptly as practicable,
but in no event later than one Business Day following
such notice, suspend solicitation until such time as
the Issuer has advised them that solicitation of
purchases may be resumed.
If the Agents receive the notice from the Issuer or
the Company contemplated by Section 4(d) of the
Agency Agreement, they will promptly suspend
solicitation and will only resume solicitation as
provided in the Agency Agreement. If the Issuer or
the Company decides to amend or supplement the
Registration Statement or the Prospectus relating to
the Notes, it will promptly advise the Agents and
will furnish the Agents with the proposed amendment
or supplement in accordance with the terms of the
Agency Agreement. The Issuer will promptly file or
mail to the Commission for filing such amendment or
supplement, provide the Agents with copies of any
such amendment or supplement, confirm to the Agents
that such amendment or supplement has been filed with
the
33
<PAGE> 73
Commission and advise the Agents that solicitation
may be resumed. Any such suspension shall not affect
the Issuer's obligations under the Agency Agreement;
and in the event that at the time the Issuer suspends
solicitation of purchases there shall be any offers
already accepted by the Issuer outstanding for
settlement, the Issuer will have the sole
responsibility for fulfilling such obligations; the
Agents will make reasonable efforts to assist the
Issuer to fulfill such obligations, but the Agents
will not be obligated to fulfill such obligations.
The Issuer will in addition promptly advise the
Agents and the Trustee if such offers are not to be
settled and if copies of the Prospectus as in effect
at the time of the suspension may not be delivered in
connection with the settlement of such offers.
Delivery of
Prospectus: A copy of the Prospectus, as most recently amended or
supplemented on the date of delivery thereof (except
as provided below), must be delivered to a purchaser
prior to or together with the earlier of delivery of
(i) the written confirmation provided for above, and
(ii) any Note purchased by such purchaser at the
following address: if to J.P. Morgan Securities Inc.,
to Transaction Execution Group, 60 Wall Street, New
York, N.Y. 10260, Telecopy Number (212) 648-5151, if
to First Union Capital Markets, to Debt Syndicate
Group, 301 South College Street, Charlotte, N.C.
28288, Telecopy Number (704) 383-9165, if to Merrill
Lynch, Pierce, Fenner & Smith Incorporated, to MTN
Product Management, World Financial Center, New York,
N.Y. 10281, Telecopy Number (212) 449-2234, and if to
Morgan Stanley & Co. Incorporated, to Medium Term
Note Trading Desk--Carlos Cabrera, 1585 Broadway, 2nd
floor, New York, N.Y. 10036, Telecopy Number (212)
761-0780. The Issuer shall ensure that the Presenting
Agent receives copies of the Prospectus and each
amendment or supplement thereto (including
appropriate Pricing Supplements) in such quantities
and within such time limits as will enable the
Presenting Agent to deliver such confirmation or Note
to a purchaser as contemplated by these procedures
and in compliance with the preceding sentence. If,
since the date of acceptance of a purchaser's offer,
the Prospectus shall have been supplemented solely to
reflect any sale of Notes on terms different from
those agreed to between the Issuer and such purchaser
or a change in posted rates not applicable to such
purchaser, such purchaser shall not receive the
Prospectus as supplemented by such new supplement,
but shall receive the Prospectus as supplemented to
reflect the terms of the Notes being purchased by
such purchaser and otherwise as most recently amended
or supplemented on the date of delivery of the
Prospectus.
34
<PAGE> 74
SCHEDULE I
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 Partnership, L.P. - Delaware - Alabama
- Florida
- Georgia
- Indiana
- Maryland
- North Carolina
- Ohio
- Pennsylvania
- South Carolina
- Tennessee
- Virginia
------------------------------------ --------------------------------- ------------------------------------------
Summit Management Company - Maryland - Alabama
- Delaware
- Florida
- Georgia
- Indiana
- North Carolina
- Ohio
- Pennsylvania
- South Carolina
- Tennessee
- Virginia
------------------------------------ --------------------------------- ------------------------------------------
Summit Apartment Builders, Inc. - Florida - North Carolina
------------------------------------ --------------------------------- ------------------------------------------
</TABLE>
<PAGE> 75
SCHEDULE II
SUMMIT PROPERTIES INC./SUMMIT PARTNERSHIP L.P.
LIST OF MATERIAL AGREEMENTS
1. Indenture dated as of August 7, 1997 between the Operating Partnership
and First Union National Bank, relating to the Operating Partnership's
Senior Debt Securities (Exhibit 4.1 to the Operating Partnership's
Current Report on Form 8-K filed on August 11, 1997, File No.
000-22411).
2. Supplemental Indenture No. 1, dated as of August 12, 1997 between the
Operating Partnership and First Union National Bank (Exhibit 4.1 to the
Operating Partnership's Amended Current Report on Form 8-K/A-1 filed on
Augusts 18, 1997, File No. 000-22411).
3. Supplemental Indenture No. 2, dated as of December 17, 1997 between the
Operating Partnership and First Union National Bank (Exhibit 4.1 to the
Operating Partnership's Amended Current Report on Form 8-K/A-1 filed on
December 17, 1997, File No. 000-22411).
4. The Operating Partnership's 6.80% Note due 2002, dated August 12, 1997.
(Exhibit 4.2 to the Operating Partnership's Amended Current Report on
Form 8-K/A-1 filed on August 18, 1997, File No. 000-22411.
5. The Operating Partnership's 6.95% Note due 2004, dated August 12, 1997.
(Exhibit 4.3 to the Operating Partnership's Amended Current Report on
Form 8-K/A-1 filed on August 18, 1997. File No. 000-22411).
6. The Operating Partnership's 7.20% Note due 2007, dated August 12, 1997.
Exhibit 4.4 to the Operating Partnership's Amended Current Report on
Form 8-K/A-1 filed on August 18, 1997, File No. 000-22411).
7. The Operating Partnership's 6.63% Note due 2003, dated December 17,
1997. (Exhibit 4.2 to the Operating Partnership's Amended Current
Report on Form 8-K/A-1 filed on December 17, 1997, File No. 000-22411).
8. Indemnification Agreement, dated January 29, 1994, among the Company,
the Operating Partnership and the individuals named therein. (Exhibit
10.16 to the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1993, File No. 001-12792).
9. Employment Agreement between the company and Will F. Paulsen. (Exhibit
10.7.1 to the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997, File No. 001-12792).
<PAGE> 76
10. Employment Agreement between the Company and William B. McGuire, Jr.
(Exhibit 10.7.2 to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997, File No. 001-12792).
11. Employment Agreement between the Company and Raymond V. Jones. (Exhibit
10.7.3 to the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997, File No. 001-12792).
12. Employment Agreement between David F. Tufaro. (Exhibit 10.7.4 to the
Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1997, File No. 001-12792).
13. Employment Agreement between the Company and John C. Moore. (Exhibit
10.7.5 to the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997, File No. 001-12792).
14. Employment Agreement between the Company and Michael G. Malone.
(Exhibit 10.7.6 to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997, File No. 001-12792).
15. Employment Agreement between the Company and Keith L. Downey. (Exhibit
10.12.4 to the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1993, File No. 001-12792).
16. Employment Agreement between the Company and Christopher A. Hughes.
(Exhibit 10.12.3 to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1993, File No. 001-12792).
17. Employment Agreement between the Company and William B. Hamilton
(Exhibit 10.7.9 to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997, File No. 001-12792).
18. Employment Agreement between the Company and Michael L. Schwarz.
(Exhibit 10.7.10 to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997, File No. 001-12792).
19. Noncompetition Agreement between the Company and William F. Paulsen.
(Exhibit 10.8.1 to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997, File No. 001-12792).
20. Noncompetition Agreement between the Company and William B. McGuire,
Jr. (Exhibit 10.8.2 to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997, File No. 001-12792).
21. Noncompetition Agreement between the Company and Raymond V. Jones.
(Exhibit 10.8.3 to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997, File No. 001-12791).
2
<PAGE> 77
22. Noncompetition Agreement between the Company and Keith H. Kuhlman.
(Exhibit 10.8.4 to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997, File No. 001-12792).
23. Noncompetition Agreement between the Company and David F. Tufaro.
(Exhibit 10.8.5 to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997, File No. 001-12792).
24. Noncompetition Agreement between the Company and John T. Gray. (Exhibit
10.8.6 to the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997, File No. 001-12792).
25. Noncompetition Agreement between the Company and John C. Moore.
(Exhibit 10.8.7 to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997, File No. 001-12792).
26. Noncompetition Agreement between the Company and Michael G. Malone.
(Exhibit 10.8.8 to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997, File No. 001-12792).
27. Noncompetition Agreement between the Company and William B. Hamilton.
(Exhibit 10.8.9 to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997, File No. 001-12792).
28. Noncompetition Agreement between the Company and Michael L. Schwarz.
(Exhibit 10.8.10 to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997, File No. 001-12792).
29. Executive Severance Agreement between the Company and William F.
Paulsen. (Exhibit 10.9.1 to the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1997, File No. 001-12792).
30. Executive Severance Agreement between the Company and William B.
McGuire, Jr. (Exhibit 10.9.2 to the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1997, File No. 001-12792).
31. Executive Severance Agreement between the Company and Michael L.
Schwarz. (Exhibit 10.9.3 to the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1997, File No. 001-12792).
32. Executive Severance Agreement between the Company and Raymond V. Jones.
(Exhibit 10.9.4 to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997, File No. 001-12792).
33. Executive Severance Agreement between the Company and William B.
Hamilton. (Exhibit 10.9.5 to the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1997, File No. 001-12792).
3
<PAGE> 78
34. $2,500,000 Promissory Note, dated February 15, 1994 and maturing on
February 15, 2004, between Summit Management Company and Old Summit
Management Company. (Exhibit 10.17 to the Company's Annual Report on
Form 10-K for the fiscal year ended December 31, 1993, File No.
001-12792).
35. $125,000,000 Promissory Note, dated February 15, 1994 and maturing on
February 15, 2001, between the Company and The Northwestern Mutual Life
Insurance Company. (Exhibit 10.18.1 to the Company's Annual Report on
Form 10-K for the fiscal year ended December 31, 1993, File No.
001-12792).
36. Mortgage and Security Agreement and Financing Statement, dated February
15, 1994, between the Company and The Northwestern Mutual Life
Insurance Company. (Exhibit 10.18.2 to the Company's Annual Report on
Form 10-K for the fiscal year ended December 31, 1993, File No.
001-12792).
37. $30,000,000 Promissory Note, dated December 21, 1995 between the
Operating Partnership and The Northwestern Mutual Life Insurance
Company. (Exhibit 10.11.3 to the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1997, File No. 001-12792).
38. $31,000,000 Loan Agreement, dated July 31, 1996, between the Operating
Partnership and Wachovia Bank of North Carolina, N.A. (Exhibit 10.34 to
the Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended September 30, 1996, File No. 001-12792).
39. $150,000,000 Credit Agreement, dated November 18, 1996, among the
Operating Partnership, First Union National Bank of North Carolina and
Wachovia Bank of North Carolina, N.A. (Exhibit 10.35 to the Company's
Annual Report on Form 10-K for the fiscal year ended December 31, 1996,
File No. 001-12792).
40. First Amendment to $150,000,000 Credit Agreement dated July 24, 1997,
among the Operating Partnership, First Union National Bank of North
Carolina and Wachovia Bank of North Carolina, N.A. (the Operating
Partnership's Quarterly Report on Form 10-Q for the fiscal quarter
ended September 30,1997, File No. 000-22411).
41. Promissory Note and Security Agreement, dated January 28, between the
Company and Michael L. Schwarz. (Exhibit 10.14.1 to the Company's
Annual Report on Form 10-K for the fiscal year ended December 31, 1997,
File No. 001-12792).
42. Promissory Note and Security Agreement, dated January 28, 1998 between
the Company and William B. Hamilton. (Exhibit 10.14.2 to the Company's
Annual Report on Form 10-K for the fiscal year ended December 31, 1997,
File No. 001-12792).
43. Form of Promissory Note and Security Agreement between the Company and
the employees named in the Schedule thereto. (Exhibit 10.14.3 to the
Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1997, File No. 001-12792).
4.
<PAGE> 79
44. Registration Rights Agreement, dated October 12, 1994 between the
Company and PK Partners, L.P. (Exhibit 10.15.1 to the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1997, File
No. 001-12792).
45. Registration Rights Agreement, dated February 8, 1994, between the
Company and the Continuing Investors named therein. (Exhibit 10.2 to
the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1993, File No. 001-12792).
46. Registration Rights Agreement, dated December 11, 1995, between the
Company and Bissell Ballantyne, LLC. (Exhibit 10.2 to the Company's
Registration Statement on Form S-3, Registration No. 333-24669).
47. Registration Rights Agreement, dated January 10, 1996, among the
Company, Joseph H. Call and Gary S. Cangelosi. (Exhibit 10.2 to the
Company's Registration Statement on Form S-3, Registration No.
333-24669).
48. Registration Rights Agreement, dated February 20, 1997, among the
Company, The Northwestern Mutual Life Insurance Company, J. Ronald
Terwilliger, J. Ronald Terwilliger Grantor Trust, Grow Residential
Realty Investors, L.P., Douglas A. Hocksema, Randy J. Pace, Clifford A.
Breining, TCF Residential Partnership, Ltd. And Trammell S. Crow.
(Exhibit 10.2 to the Company's Registration Statement on Form,
Registration No. 333-24669).
49. Registration Rights Agreement, dated May 16, 1995, between the Company
and the individuals named therein executed in connection with the
Crosland Acquisition. (Exhibit 10.15.6 to the Company's Annual Report
on Form 10-K for the fiscal year ended December 31, 1997, File No.
001-12792).
50. Agreement to Contribute, dated February 13, 1995, between the Company,
the Operating Partnership and Crosland Partnerships. (Exhibit 2.1 to
the Company's Current Report on Form 8-K dated May 16, 1995, File No.
001-12792).
51. Credit Agreement, dated as of March 27, 1998, by and among Summit
Properties Partnership, L.P., Summit Properties Inc., the Banks listed
on the signature pages thereof and the other Lenders from time to time
party thereto, and First Union National Bank, as Administrative Agent
for the Lenders thereunder. (Exhibit 10.1 to the Company's Quarterly
Report on Form 10-Q for the quarterly period ended March 31, 1998, File
No. 001-12792).
52. Promissory Note, dated as of January, 28, 1998, evidencing a loan of
$42,258 to Michael L. Schwarz for the purpose of paying tax liability
associated with Restricted Stock Award. (Exhibit 10.2 to the Company's
Quarterly Report on Form 10-Q for the quarterly period ended March 31,
1998, File No. 001-12792).
53. Promissory Note, dated as of January 30, 1998, evidencing a loan of
$361,785 to Michael L. Schwarz for the purpose of purchasing shares of
Common Stock of Summit Properties
5
<PAGE> 80
Inc. (Exhibit 10.3 to the Company's Quarterly Report on Form 10-Q for
the quarterly period ended March 31, 1998, File No. 001-12792). 5
54. Promissory Note, dated as of January 28, 1998, evidencing a loan of
$57,418 to William B. Hamilton for the purpose of paying tax liability
associated with Restricted Stock Award. (Exhibit 10.4 to the Company's
Quarterly Report on Form 10-Q for the quarterly period ended March 31,
1998, File No. 001-12792).
55. Promissory Note, dated as of January 30, 1998, evidencing a loan of
$441,562 to William B. Hamilton for the purpose of purchasing shares of
Common Stock of Summit Properties Inc. (Exhibit 10.5 to the Company's
Quarterly Report on Form 10-Q for the quarterly period ended March 31,
1998, File No. 001-12792).
56. Amendment No. 11 to the Limited Partnership Agreement of Summit
Properties Partnership, L.P. (Exhibit 3.1 to the Operating
Partnership's Quarterly Report on Form 10-Q for the quarterly period
ended March 31, 1998, File No. 000-22411).
6
<PAGE> 81
SCHEDULE III
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.
Gilbert G. Menna, P.C.
David W. Watson, P.C.
Ross D. Gillman
Stephen G. Charkoudian
Diana McKearney
Jennifer H. Weiss
<PAGE> 82
SCHEDULE IV
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
SUMMIT PROPERTIES PARTNERSHIP, L.P.
Issuer
to
FIRST UNION NATIONAL BANK
Trustee
Supplemental Indenture No. 3
Dated as of May 29, 1998
$95,000,000
of
Medium-Term Notes Due Nine Months or More
from Date of Issue
<PAGE> 2
SUPPLEMENTAL INDENTURE NO. 3, dated as of May 29, 1998 (the
"Supplemental Indenture"), between SUMMIT PROPERTIES PARTNERSHIP, L.P., a
limited partnership organized under the laws of the State of Delaware (herein
called the "Partnership"), and First Union National Bank, a national banking
association organized under the laws of the United States of America, as Trustee
(herein called the "Trustee").
RECITALS OF THE PARTNERSHIP
The Partnership has heretofore delivered to the Trustee an
Indenture dated as of August 7, 1997 (the "Senior Indenture"), a form of which
has been filed with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended, as an exhibit to the Partnership's
Registration Statement on Form S-3 (Registration No. 333-25575), providing for
the issuance from time to time of Senior Debt Securities of the Partnership (the
"Securities"). The Partnership intends by this Supplemental Indenture to (i)
create a series of debt securities to be issued from time to time, in an
aggregate initial principal amount not to exceed $95,000,000, entitled
"Medium-Term Notes Due Nine Months or More from Date of Issue" (the "Notes") and
(ii) establish the form and the terms and conditions of such Notes.
Section 301 of the Senior Indenture provides for various
matters with respect to any series of Securities issued under the Senior
Indenture to be established in an indenture supplemental to the Senior
Indenture.
Section 901(7) of the Senior Indenture provides for the
Partnership and the Trustee to enter into an indenture supplemental to the
Senior Indenture to establish the form or terms of Securities of any series as
provided by Sections 201 and 301 of the Senior Indenture.
The Board of Directors of Summit Properties Inc., the general
partner of the Partnership, has duly adopted resolutions authorizing the
Partnership to execute and deliver this Supplemental Indenture.
All the conditions and requirements necessary to make this
Supplemental Indenture, when duly executed and delivered, a valid and binding
agreement in accordance with its terms and for the purposes herein expressed,
have been performed and fulfilled.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
each of the series of Securities provided for herein by the Holders thereof, it
is mutually covenanted and agreed, for the equal and proportionate benefit of
all Holders of the Notes or of any series thereof, as follows:
<PAGE> 3
ARTICLE ONE
RELATION TO SENIOR INDENTURE; DEFINITIONS
SECTION 1.1. Relation to Senior Indenture.
This Supplemental Indenture constitutes an integral part of
the Senior Indenture.
SECTION 1.2. Definitions.
For all purposes of this Supplemental Indenture, except as
otherwise expressly provided for or unless the context otherwise requires:
(1) Capitalized terms used but not defined herein shall have
the respective meanings assigned to them in the Senior Indenture; and
(2) All references herein to Articles and Sections, unless
otherwise specified, refer to the corresponding Articles and Sections
of this Supplemental Indenture.
"Acquired Indebtedness" means Indebtedness of a Person (i)
existing at the time such Person becomes a Subsidiary or (ii) assumed in
connection with the acquisition of assets from such Person, in each case, other
than Indebtedness incurred in connection with, or in contemplation of, such
Person becoming a Subsidiary or such acquisition. Acquired Indebtedness shall be
deemed to be incurred on the date of the related acquisition of assets from any
Person or the date the acquired Person becomes a Subsidiary.
"Annual Service Charge" for any period means the aggregate
interest expense for such period in respect of, and the amortization during such
period of any original issue discount of, Indebtedness of the Partnership and
its Subsidiaries and the amount of dividends which are payable during such
period in respect of any Disqualified Stock.
"Capital Stock" means, with respect to any Person, any capital
stock (including preferred stock), shares, interests, participations or other
ownership interests (however designated) of such Person and any rights (other
than debt securities convertible into or exchangeable for corporate stock),
warrants or options to purchase any thereof.
"Consolidated Income Available for Debt Service" for any
period means Earnings from Operations of the Partnership and its Subsidiaries
plus amounts which have been deducted, and minus amounts which have been added,
for the following (without duplication): (i) interest on Indebtedness of the
Partnership and its Subsidiaries, (ii) provision for taxes of the Partnership
and its Subsidiaries based on income, (iii) amortization of debt discount, (iv)
provisions for gains and losses on properties and property depreciation and
amortization, (v) the effect of any noncash charge resulting from a change in
accounting principles in determining Earnings from Operations for such period
and (vi) amortization of deferred charges.
2
<PAGE> 4
"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.
"Fixed Rate Notes" means the Partnership's Fixed Rate Notes
due nine months or more from the date of issue, a form of which is attached
hereto as Exhibit B.
"Floating Rate Notes" means the Partnership's Floating Rate
Notes due nine months or more from the date of issue, a form of which is
attached hereto as Exhibit A.
"GAAP" means generally accepted accounting principles as used
in the United States applied on a consistent basis as in effect from time to
time; provided that solely for purposes of any calculation required by the
financial covenants contained herein, "GAAP" shall mean generally accepted
accounting principles as used in the United States on the date hereof, applied
on a consistent basis.
"Indebtedness" of the Partnership or any Subsidiary means any
indebtedness of the Partnership or any Subsidiary, whether or not contingent, in
respect of (i) borrowed money or evidenced by bonds, notes, debentures or
similar instruments whether or not such indebtedness is secured by any
Encumbrance existing on property owned by the Partnership or any Subsidiary,
(ii) indebtedness for borrowed money of a Person other than the Partnership or a
Subsidiary which is secured by any Encumbrance existing on property owned by the
Partnership or any Subsidiary, to the extent of the lesser of (x) the amount of
indebtedness so secured and (y) the fair market value of the property subject to
such Encumbrance, (iii) the reimbursement obligations, contingent or otherwise,
in connection with any letters of credit actually issued or amounts representing
the balance deferred and unpaid of the purchase price of any property or
services, except any such balance that constitutes an accrued expense or trade
payable, or all conditional sale obligations or obligations under any title
retention agreement, (iv) the principal amount of all obligations of the
Partnership or any Subsidiary with respect to redemption, repayment
3
<PAGE> 5
or other repurchase of any Disqualified Stock, (v) any lease of property by the
Partnership or any Subsidiary as lessee which is reflected on the Partnership's
consolidated balance sheet as a capitalized lease in accordance with GAAP, or
(vi) interest rate swaps, caps or similar agreements and foreign exchange
contracts, currency swaps or similar agreements, to the extent, in the case of
items of indebtedness under (i) through (iii) above, that any such items (other
than letters of credit) would appear as a liability on the Partnership's
consolidated balance sheet in accordance with GAAP, and also includes, to the
extent not otherwise included, any obligations by the Partnership or any
Subsidiary to be liable for, or to pay, as obligor, guarantor or otherwise
(other than for purposes of collection in the ordinary course of business),
Indebtedness of another Person (other than the Partnership or any Subsidiary)
(it being understood that Indebtedness shall be deemed to be incurred by the
Partnership or any Subsidiary whenever the Partnership or such Subsidiary shall
create, assume, guarantee or otherwise become liable in respect thereof).
"Notes" has the meaning specified in Section 2.1 hereof.
"Pricing Supplement" means a pricing supplement to the
Prospectus, dated July 29, 1997, as supplemented by the Prospectus Supplement
dated May 29, 1998, setting forth the terms of the applicable Notes.
"Subsidiary" means, with respect to any Person, any
corporation or other entity of which a majority of (i) the voting power of the
voting equity securities or (ii) the outstanding equity interests of which are
owned, directly or indirectly, by such Person. For the purposes of this
definition, "voting equity securities" means equity securities having voting
power for the election of directors, whether at all times or only so long as no
senior class of security has such voting power by reason of any contingency.
"Total Assets" as of any date means the sum of (i) the
Undepreciated Real Estate Assets and (ii) all other assets of the Partnership
and its Subsidiaries determined in accordance with GAAP (but excluding accounts
receivable and intangibles).
"Total Unencumbered Assets" means the sum of (i) those
Undepreciated Real Estate Assets not subject to an Encumbrance for borrowed
money and (ii) all other assets of the Partnership and its Subsidiaries not
subject to an Encumbrance for borrowed money, determined in accordance with GAAP
(but excluding accounts receivable and intangibles).
"Undepreciated Real Estate Assets" as of any date means the
cost (original cost plus capital improvements) of real estate assets of the
Partnership and its Subsidiaries on such date, before depreciation and
amortization, determined on a consolidated basis in accordance with GAAP.
"Unsecured Indebtedness" means Indebtedness which is not
secured by any Encumbrance upon any of the properties of the Partnership or any
Subsidiary.
4
<PAGE> 6
ARTICLE TWO
THE SERIES OF NOTES
SECTION 2.1 Title of the Securities.
There shall be a series of Securities designated the
Medium-Term Notes Due Nine Months or More from Date of Issue (the "Notes").
SECTION 2.2 Limitation on Aggregate Principal Amount.
The aggregate principal amount of the Notes shall be limited
to $95,000,000, and, except as provided in this Section and in Section 306 of
the Indenture, the Partnership shall not execute and the Trustee shall not
authenticate or deliver Notes in excess of such aggregate principal amount;
provided however, as authorized by Section 301 of the Indenture, the Notes
series may be reopened, without the consent of the Holders, for the issuance of
such additional Notes as may be authorized by the Partnership.
Nothing contained in this Section 2.2 or elsewhere in this
Supplemental Indenture, or in the Notes, is intended to or shall limit execution
by the Partnership or authentication or delivery by the Trustee of Notes under
the circumstances contemplated by Sections 303, 304, 305, 306, 906, 1107 and
1305 of the Indenture.
SECTION 2.3 Terms and Conditions of the Notes.
The Notes shall be governed by all the terms and conditions of
the Indenture, including, without limitation, the terms and conditions set forth
in the forms of Note referred to in Section 2.9 below, as the same may be
supplemented or, to the extent allowed by the Indenture, modified by the
additional or different terms and conditions established from time to time with
respect to the Notes either in board resolutions of Summit Properties Inc. (the
"General Partner"), as sole general partner of the Operating Partnership or by
action of authorized officers of the General Partner and, in either such case,
such additional or different terms and conditions shall be set forth in the
Notes and the related Pricing Supplement. All such terms and conditions set
forth in such Notes and in such Pricing Supplement are incorporated by reference
into this Supplemental Indenture.
SECTION 2.4 Limitations on Incurrence of Indebtedness.
(a) The Partnership will not, and will not permit any
Subsidiary to, incur any Indebtedness if, immediately after giving effect to the
incurrence of such additional Indebtedness and the application of the proceeds
thereof, the aggregate principal amount of all outstanding Indebtedness of the
Partnership and its Subsidiaries on a consolidated basis determined in
accordance with GAAP is greater than 60% of the sum of (without duplication) (i)
the Total Assets of the Partnership and its Subsidiaries as of the end of the
calendar quarter covered in the Partnership's Annual Report on Form 10-K or
5
<PAGE> 7
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 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
6
<PAGE> 8
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 Defeasance.
The provisions of Sections 1402 and 1403 of the Senior
Indenture, together with the other provisions of Article Fourteen of the Senior
Indenture, shall be applicable to the Notes. The provisions of Section 1403 of
the Senior Indenture shall apply to the covenants set forth in Sections 2.4 and
2.10 of this Supplemental Indenture and to those covenants specified in Section
1403 of the Senior Indenture.
SECTION 2.6 Events of Default
The provisions of clause (5) of Section 501 of the Senior
Indenture as applicable with respect to the Notes shall be deemed to be amended
and restated in their entirety to read as follows:
(5) default under any bond, debenture, note, mortgage,
indenture or instrument under which there may be issued or by which there may be
secured or evidenced any indebtedness for money borrowed by the Partnership (or
by any Subsidiary, the repayment of which the Partnership has guaranteed or for
which the Partnership is directly responsible or liable as obligor or
guarantor), having an aggregate principal amount outstanding of at least
$10,000,000, whether such indebtedness now exists or shall hereafter be created,
which default shall have resulted in such indebtedness becoming or being
declared due and payable prior to the date on which it would otherwise have
become due and payable, without such indebtedness having been discharged, or
such acceleration having been rescinded or annulled, within a period of 10 days
after there shall have been given written notice, by registered or certified
mail, to the Partnership by the Trustee or to the Partnership and the Trustee by
the Holders of at least 10% in principal amount of the Outstanding Securities of
that series a written notice specifying such default and requiring the
Partnership to cause such indebtedness to be discharged or cause such
acceleration to be rescinded or annulled and stating that such notice is a
"Notice of Default" hereunder; or
The provisions of Section 501 of the Senior Indenture as
applicable with respect to the Notes shall be further deemed to be amended by
renumbering existing clause (8) to be clause (9) and by adding the following new
clause (8):
(8) the entry by a court of competent jurisdiction of one or
more judgments, orders or decrees against the Partnership or any of its
Subsidiaries in an
7
<PAGE> 9
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 2.7 Acceleration of Maturity; Rescission and
Annulment.
The provisions of the first paragraph of Section 502 of the
Senior Indenture as applicable with respect to the Notes shall be deemed to be
amended and restated in their entirety to read as follows:
If an Event of Default with respect to Securities of any
series at the time Outstanding occurs and is continuing, then in every such case
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal (or, if any
Securities are Original Issue Discount Securities or Indexed Securities, such
portion of the principal as may be specified in the terms thereof) of, all the
Securities of that series to be due and payable immediately, by a notice in
writing to the Partnership (and to the Trustee if given by the Holders), plus
accrued interest to the date the Securities of that series are paid, and upon
any such declaration such principal or specified portion thereof shall become
immediately due and payable. With respect to the Securities of any series, if an
Event of Default set forth in Section 501(6) of the Senior Indenture occurs and
is continuing, then in every such case all the Securities of that series shall
become immediately due and payable, without notice to the Partnership, at the
principal amount thereof (or, if any Securities are Original Issue Discount
Securities or Indexed Securities, such portion of the principal as may be
specified in the terms thereof) plus accrued interest to the date the Securities
of that series are paid.
SECTION 2.8 Registered Securities.
Each Note shall be issuable and transferable in fully
registered book-entry form or certificated form as specified in the applicable
Pricing Supplement.
SECTION 2.9 Form of Notes.
The Floating Rate Notes shall be substantially in the form
attached as Exhibit A hereto. The Fixed Rate Notes shall be substantially in the
form attached as Exhibit B hereto.
SECTION 2.10 Provision of Financial Information.
Whether or not the Partnership is subject to Section 13 or
15(d) of the Exchange Act, the Partnership will, to the extent permitted under
the Exchange Act, file with the Commission the annual reports, quarterly reports
and other documents which the Partnership would have been required to file with
the Commission pursuant to such Section 13 or 15(d) if the Partnership were so
subject, such documents to be filed with the Commission on or prior to the
respective dates (the "Required Filing Dates") by which the Partnership would
have been required so to file such documents if the Partnership were so subject.
8
<PAGE> 10
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 2.11 Waiver of Certain Covenants.
Notwithstanding the provisions of Section 1010 of the Senior
Indenture, the Partnership may omit in any particular instance to comply with
any term, provision or condition set forth in Sections 1004 to 1007, inclusive,
of the Senior Indenture, with Sections 2.4 and 2.10 of this Supplemental
Indenture and with any other term, provision or condition with respect to the
Notes or either series thereof (except any such term, provision or condition
which could not be amended without the consent of all Holders of the Notes or
such series thereof, as applicable), if before or after the time for such
compliance the Holders of at least a majority in principal amount of all
outstanding Notes or such series thereof, as applicable, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such covenant or condition. Except to the extent so expressly waived, and until
such waiver shall become effective, the obligations of the Partnership and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
9
<PAGE> 11
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 3.1. Ratification of Senior Indenture.
Except as expressly modified or amended hereby, the Senior
Indenture continues in full force and effect and is in all respects confirmed
and preserved.
SECTION 3.2. Governing Law.
This Supplemental Indenture and each Note shall be governed by
and construed in accordance with the laws of the State of New York. This
Supplemental Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, and shall, to the extent applicable, be governed by such
provisions.
SECTION 3.3. Counterparts.
This Supplemental Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
10
<PAGE> 12
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed by their respective officers hereunto
duly authorized, all as of the day and year first written above.
SUMMIT PROPERTIES PARTNERSHIP, L.P.
By: Summit Properties, Inc.,
its general partner
By: /s/ Michael L. Schwarz
----------------------------------------
Michael L. Schwarz
Executive Vice President and
Chief Financial Officer
FIRST UNION NATIONAL BANK,
as Trustee
By: /s/ Terry W. Baker
----------------------------------------
Terry W. Baker
Vice President
11
<PAGE> 13
EXHIBIT A
[FACE OF NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (THE "DEPOSITARY") (55 WATER STREET, NEW YORK, NEW YORK) TO THE
ISSUER HEREOF OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY AND ANY PAYMENT
IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.(1)
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.(2)
REGISTERED [PRINCIPAL AMOUNT]
No. FLR-
CUSIP No:*
SUMMIT PROPERTIES PARTNERSHIP, L.P.
MEDIUM-TERM NOTE
(Floating Rate)
INTEREST RATE BASIS ORIGINAL ISSUE DATE: STATED MATURITY DATE:
OR BASES:
IF LIBOR: IF CMT RATE:
[ ] LIBOR Reuters Designated CMT Telerate Page:
Page: If Telerate Page 7052:
[ ] Weekly Average
[ ] Monthly Average
Designated CMT Maturity Index:
[ ]-LIBOR Telerate
Page:
INDEX CURRENCY:
- ------------------------
(1) This paragraph applies to global Notes only.
(2) This paragraph applies to global Notes only.
<PAGE> 14
INDEX MATURITY: INITIAL INTEREST RATE: % INTEREST PAYMENT
DATE(S):
SPREAD (PLUS OR SPREAD MULTIPLIER: INITIAL INTEREST RESET
MINUS): DATE:
MINIMUM INTEREST MAXIMUM INTEREST INTEREST RESET
RATE: % RATE: % DATE(S):
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: % PERCENTAGE REDUCTION:
OPTIONAL REPAYMENT CALCULATION AGENT:
DATE(S):
INTEREST CATEGORY: DAY COUNT CONVENTION:
[ ] Regular Floating Rate Note [ ] 30/360 for the period
[ ] Floating Rate/Fixed Rate Note from to
Fixed Rate Commencement Date: [ ] Actual/360 for the period
Fixed Interest Rate: % from to
[ ] Inverse Floating Rate Note [ ] Actual/Actual for the period
Fixed Interest Rate: % from to
[ ] Original Issue Discount Note Applicable Interest Rate Basis:
Issue Price: %
SPECIFIED CURRENCY: AUTHORIZED DENOMINATION:
[ ] United States dollars [ ] $1,000 and integral multiples thereof
[ ] Other: [ ] Other:
EXCHANGE RATE:
U.S. $1.00 = ______
EXCHANGE RATE AGENT:
AMORTIZING SECURITY:
[ ] Yes
[ ] No
AMORTIZATION FORMULA:
<PAGE> 15
AMORTIZATION PAYMENT DATE(S):
DEFAULT RATE: %
ADDENDUM ATTACHED:
[ ] Yes
[ ] No
OTHER/ADDITIONAL PROVISIONS:
SUMMIT PROPERTIES PARTNERSHIP, L.P., a limited partnership duly
organized and existing under the laws of Delaware (hereinafter referred to as
the "Partnership", which term includes any successor entity under the Indenture
hereinafter referred to), for value received, hereby promises to pay to_______,
or registered assigns, the principal sum of_____________, on the Stated Maturity
Date specified above (or any Redemption Date or Repayment Date, each as defined
below) (each such Stated Maturity Date, Redemption Date or Repayment Date being
hereinafter referred to as the "Maturity Date" with respect to the principal
repayable on such date) and to pay interest thereon, at a rate per annum equal
to the initial Interest Rate specified above until the Initial Interest Reset
Date specified above and thereafter at a rate determined in accordance with the
provisions specified above and on the reverse hereof or in an Addendum hereto
with respect to one or more Interest Rate Bases specified above until the
principal hereof is paid or duly made available for payment, and (to the extent
that the payment of such interest shall be legally enforceable) at the Default
Rate per annum specified above on any overdue principal, premium and/or
interest, including any overdue sinking fund or redemption payment. The
Partnership will pay interest in arrears on each Interest Payment Date, if any,
specified above (each, an "Interest Payment Date"), commencing with the first
Interest Payment Date next succeeding the Original Issue Date specified above,
and on the Maturity Date; provided, however, that if the Original Issue Date
occurs between a Record Date (as defined below) and the next succeeding Interest
Payment Date, interest payments will commence on the second Interest Payment
Date next succeeding the Original Issue Date to the holder of this Note on the
Record Date with respect to such second Interest Payment Date.
Interest on this Note will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for (or from, and including, the Original Issue Date if no interest has been
paid or duly provided for) to, but excluding, the applicable Interest Payment
Date or the Maturity Date, as the case may be (each, an "Interest Period"). The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, subject to certain exceptions described herein, be paid to
the person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the fifteenth calendar day (whether or
not a Business Day, as defined on
<PAGE> 16
the reverse hereof) immediately preceding such Interest Payment Date (the
"Record Date"); provided, however, that interest payable on the Maturity Date
will be payable to the person to whom the principal hereof and premium, if any,
hereon shall be payable. Any such interest not so punctually paid or duly
provided for ("Defaulted Interest") will forthwith cease to be payable to the
holder on any Record Date, and shall be paid to the person in whose name this
Note is registered at the close of business on a special record date (the
"Special Record Date") for the payment of such Defaulted Interest to be fixed by
the Trustee hereinafter referred to, notice whereof shall be given to the holder
of this Note by the Trustee not more than 15 days and not less than 10 days
prior to such Special Record Date or may be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which this Note may be listed, and upon such notice as may be required by such
exchange, all as more fully provided for in the Indenture.
Payment of principal, premium, if any, and interest in respect of this
Note due on the Maturity Date, or any prior date on which the principal or an
installment of principal of this Note becomes due and payable, whether by the
declaration of acceleration or otherwise, will be made in immediately available
funds upon presentation and surrender of this Note (and, with respect to any
applicable repayment of this Note, upon presentation and surrender of this Note
and a duly completed election form as contemplated on the reverse hereof) at the
office or agency maintained by the Partnership for that purpose in the Borough
of Manhattan, The City of New York; provided, however, that if the Specified
Currency specified above is other than United States dollars and such payment is
to be made in the Specified Currency in accordance with the provisions set forth
below, such payment may be made by wire transfer of immediately available funds
to an account with a bank designated by the holder hereof at least 15 calendar
days prior to the Maturity Date, provided that such bank has appropriate
facilities therefor and that this Note (and, if applicable, a duly completed
repayment election form) is presented and surrendered at the aforementioned
office or agency maintained by the Partnership in time for the Trustee or the
Designated Agent to make such payment in such funds in accordance with its
normal procedures. Payment of interest due on any Interest Payment Date other
than the Maturity Date will be made at the aforementioned office of agency
maintained by the Partnership or, at the option of the Partnership, by check
mailed to the address of the person entitled thereto as such address shall
appear in the Security Register maintained by the Trustee or the Designated
Agent; provided, however, that a holder of U.S. $10,000,000 (or, if the
Specified Currency is other than United States dollars, the equivalent thereof
in the Specified Currency) or more in aggregate principal amount of Notes
(whether having identical or different terms and provisions) will be entitled to
receive interest payments on any Interest Payment Date other than the Maturity
Date by wire transfer of immediately available funds if appropriate wire
transfer instructions have been received in writing by the Trustee or the
Designated Agent not less than 15 calendar days prior to such Interest Payment
Date. Any such wire transfer instructions received by the Trustee or the
Designated Agent shall remain in effect until revoked by such holder.
If any Interest Payment Date other than the Maturity Date would
otherwise be a day that is not a Business Day, such Interest Payment Date shall
be postponed to the next succeeding Business Day, except that if LIBOR is an
applicable Interest Rate Basis and such Business
<PAGE> 17
Day falls in the next succeeding calendar month, such Interest Payment Date
shall be the immediately preceding Business Day. If the Maturity Date falls on a
day that is not a Business Day, the required payment of principal, premium, if
any, and interest shall be made on the next succeeding Business Day with the
same force and effect as if made on the date such payment was due, and no
interest shall accrue with respect to such payment for the period from and after
the Maturity Date to the date of such payment on the next succeeding Business
Day.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking institutions
are authorized or required by law, regulation or executive order to close in The
City of New York, Chicago or Charlotte, North Carolina; provided, however, that
if the Specified Currency is other than United States dollars, such day is also
not a day on which banking institutions are authorized or required by law,
regulation or executive order to close in the Principal Financial Center (as
defined below) of the country issuing the Specified Currency (or, if the
Specified Currency is European Currency Units ("ECU"), such day is not a day
that appears as an ECU non-settlement day on the display designated as "ISDE" on
the Reuter Monitor Money Rates Service (or a day so designated by the ECU
Banking Association), or, if ECU non-settlement days do not appear on that page
(and are not so designated), is not a day on which payments in ECU cannot be
settled in the international interbank market); provided, further, that if LIBOR
is an applicable Interest Rate Basis, such day is also a London Business Day (as
defined below). "London Business Day" means (i) if the Index Currency (as
defined below) is other than ECU, any day on which dealings in such Index
Currency are transacted in the London interbank market or (ii) if the Index
Currency is ECU, any day that does not appear as an ECU non-settlement day on
the display designated as "ISDE" on the Reuter Monitor Money Rates Service (or a
day so designated by the ECU Banking Association) or, if ECU non-settlement days
do not appear on that page (and are not so designated), is not a day on which
payments in ECU cannot be settled in the international interbank market.
"Principal Financial Center" means the capital city of the country issuing the
Specified Currency or, solely with respect to the calculation of LIBOR, the
Index Currency, except that with respect to United States dollars, Australian
dollars, Deutsche marks, Dutch guilders, Italian lire, Swiss francs and ECU, the
Principal Financial Center shall be The City of New York, Sydney, Frankfurt,
Amsterdam, Milan, Zurich and Luxembourg, respectively.
The Partnership is obligated to make payments of principal, premium, if
any, and interest in respect of this Note in the Specified Currency (or, if the
Specified Currency is not at the time of such payment legal tender for the
payment of public and private debts, in such other coin or currency of the
country which issued the Specified Currency as at the time of such payment is
legal tender for the payment of such debts). If the Specified Currency is other
than United States dollars, except as provided below, any such amounts so
payable by the Partnership will be converted by the Exchange Rate Agent
specified above into United States dollars for payment to the holder of this
Note.
If the Specified Currency is other than United States dollars, the
holder of this Note may elect to receive such amounts in such Specified
Currency. If the holder of this Note shall not have duly made an election to
receive all or a specified portion of any payment of princi-
<PAGE> 18
pal, premium, if any, and/or interest in respect of this Note in the Specified
Currency, any United States dollar amount to be received by the holder of this
Note will be based on the highest bid quotation in The City of New York received
by the Exchange Rate Agent at approximately 11:00 A.M., New York City time, on
the second Business Day preceding the applicable payment date from three
recognized foreign exchange dealers (one of whom may be the Exchange Rate Agent)
selected by the Exchange Rate Agent and approved by the Partnership for the
purchase by the quoting dealer of the Specified Currency for United States
dollars for settlement on such payment date in the aggregate amount of such
Specified Currency payable to all holders of Foreign Currency Notes scheduled to
receive United States dollar payments and at which the applicable dealer commits
to execute a contract. All currency exchange costs will be borne by the holder
of this Note by deductions from such payments. If three such bid quotations are
not available, payments on this Note will be made in the Specified Currency.
If the Specified Currency is other than United States dollars, the
holder of this Note may elect to receive all or a specified portion of any
payment of principal, premium, if any, and/or interest in respect of this Note
in the Specified Currency by submitting a written request for such payment to
the Trustee or the Designated Agent at its corporate trust office in The City of
New York on or prior to the applicable Record Date or at least 15 calendar days
prior to the Maturity Date, as the case may be. Such written request may be
mailed or hand delivered or sent by cable, telex or other form of facsimile
transmission. The holder of this Note may elect to receive all or a specified
portion of all future payments in the Specified Currency in respect of such
principal, premium, if any, and/or interest and need not file a separate
election for each payment. Such election will remain in effect until revoked by
written notice to the Trustee or the Designated Agent, but written notice of any
such revocation must be received by the Trustee or the Designated Agent on or
prior to the applicable Record Date or at least 15 calendar days prior to the
Maturity Date, as the case may be. If the Specified Currency is other than
United States dollars or a composite currency and the holder of this Note shall
have duly made an election to receive all or a specified portion of any payment
of principal, premium, if any, and/or interest in respect of this Note in the
Specified Currency and if the Specified Currency is not available due to the
imposition of exchange controls or other circumstances beyond the reasonable
control of the Partnership, the Partnership will be entitled to satisfy its
obligations to the holder of this Note by making such payment in United States
dollars on the basis of the Market Exchange Rate (as defined below) on the
second Business Day prior to such payment date or, if such Market Exchange Rate
is not then available, on the basis of the most recently available Market
Exchange Rate or as otherwise specified on the face hereof. The "Market Exchange
Rate" for the Specified Currency means the noon dollar buying rate in The City
of New York for cable transfers for such Specified Currency as certified for
customs purposes by (or if not so certified, as otherwise determined by) the
Federal Reserve Bank of New York. Any payment made under such circumstances in
United States dollars will not constitute an Event of Default (as defined in the
Indenture) with respect to this Note.
If the Specified Currency is a composite currency and the holder of
this Note shall have duly made an election to receive all or a specified portion
of any payment of principal,
<PAGE> 19
premium, if any, and/or interest in respect of this Note in the Specified
Currency and if such composite currency is unavailable due to the imposition of
exchange controls or other circumstances beyond the reasonable control of the
Partnership, then the Partnership will be entitled to satisfy its obligations to
the holder of this Note by making such payment in United States dollars. The
amount of each payment in United States dollars shall be computed by the
Exchange Rate Agent on the basis of the equivalent of the composite currency in
United States dollars. The component currencies of the composite currency for
this purpose (collectively, the "Component Currencies" and each, a "Component
Currency") shall be the currency amounts that were components of the composite
currency as of the last day on which the composite currency was used. The
equivalent of the composite currency in United States dollars shall be
calculated by aggregating the United States dollar equivalents of the Component
Currencies. The United States dollar equivalent of each of the Component
Currencies shall be determined by the Exchange Rate Agent on the basis of the
most recently available Market Exchange Rate for each such Component Currency,
or as otherwise specified on the face hereof.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the holder of this Note.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof and, if so specified above on the face hereof, in
the Addendum hereto, which further provisions shall have the same force and
effect as if set forth on the face hereof.
Notwithstanding any provisions to the contrary contained herein, if the
face of this Note specifies that an Addendum is attached hereto or that
"Other/Additional Provisions" apply to this Note, this Note shall be subject to
the terms set forth in such Addendum or such "Other/Additional Provisions".
Unless the Certificate of Authentication hereon has been executed by
the Trustee or its Authenticating Agent by manual signature, this Note shall not
be entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, SUMMIT PROPERTIES PARTNERSHIP, L.P. has caused this
Note to be duly executed under its seal.
<PAGE> 20
Dated: SUMMIT PROPERTIES PARTNERSHIP, L.P.
By: Summit Properties Inc,
its General Partner
By:
-----------------------------------------
William F. Paulsen
President and Chief Executive Officer
[SEAL]
Attest:
- ----------------------------------
Michael G. Malone
Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
FIRST UNION NATIONAL BANK,
as Trustee
Dated: By
-------------------- -------------------------------------
Authorized Signatory
<PAGE> 21
[REVERSE OF NOTE]
SUMMIT PROPERTIES PARTNERSHIP, L.P.
MEDIUM-TERM NOTE
(Floating Rate)
This Note is one of a duly authorized series of Securities (the
"Securities") of the Partnership issued and to be issued under an Indenture,
dated as of August 7, 1997, as supplemented by the Third Supplemental Indenture
dated as of May __, 1998, as further amended, modified or supplemented from time
to time (the "Indenture"), between the Partnership and First Union National
Bank, as Trustee (the "Trustee," which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Trust, the Trustee and the
holders of the Securities, and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Note is one of the series of
Securities designated as "Medium-Term Notes Due Nine Months or More from Date of
Issue" (the "Notes"). All terms used but not defined in this Note or in an
Addendum hereto shall have the meanings assigned to such terms in the Indenture
or on the face hereof, as the case may be.
This Note is issuable only in registered form without coupons in
minimum denominations of U.S. $1,000 and integral multiples thereof or the
minimum Authorized Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless otherwise
specified on the face hereof in accordance with the provisions of the following
two paragraphs, will not be redeemable or repayable prior to the Stated Maturity
Date.
This Note will be subject to redemption at the option of the
Partnership on any date on and after the Initial Redemption Date, if any,
specified on the face hereof, in whole or from time to time in part in
increments of U.S. $1,000 or the minimum Authorized Denomination (provided that
any remaining principal amount hereof shall be at least U.S. $1,000 or such
minimum Authorized Denomination), at the Redemption Price (as defined below),
together with unpaid interest accrued thereon to the date fixed for redemption
(each, a "Redemption Date"), on notice given not more than 60 nor less than 30
calendar days prior to the Redemption Date and in accordance with the provisions
of the Indenture. The "Redemption Price" shall initially be the Initial
Redemption Percentage specified on the face hereof multiplied by the unpaid
principal amount of this Note to be redeemed. The Initial Redemption Percentage
shall decline at each anniversary of the Initial Redemption Date by the Annual
Redemption Percentage Reduction, if any, specified on the face hereof until the
Redemption Price is 100% of the unpaid principal amount to be redeemed. In the
event of redemption of this Note in part only, a new Note of like tenor for the
unredeemed portion hereof and otherwise having the
<PAGE> 22
same terms as this Note shall be issued in the name of the holder hereof upon
the presentation and surrender hereof.
This Note will be subject to repayment by the Partnership at the option
of the holder hereof on the Optional Repayment Date(s), if any, specified on the
face hereof, in whole or in part in increments of U.S. $1,000 or the minimum
Authorized Denomination (provided that any remaining principal amount hereof
shall be at least U.S. $1,000 or such minimum Authorized Denomination), at a
repayment price equal to 100% of the unpaid principal amount to be repaid,
together with unpaid interest accrued thereon to the date fixed for repayment
(each, a "Repayment Date"). For this Note to be repaid, the Trustee or the
Designated Agent must receive at its office in the Borough of Manhattan, The
City of New York, referred to on the face hereof, at least 30 days but not more
than 60 days prior to the Repayment Date (i) this Note and the form hereon
entitled "Option to Elect Repayment" duly completed or (ii) a telegram, telex,
facsimile transmission, or a letter from a member of a national securities
exchange or the National Association of Securities Dealers, Inc. or a commercial
bank or trust company in the United States setting forth the name of the holder
hereof, the principal amount of this Note, the principal amount of this Note to
be repaid, the certificate number or a description of the tenor and terms of
this Note, a statement that the option to elect repayment is being exercised
thereby, and a guarantee that this Note, together with the form hereon entitled
"Option to Elect Repayment" duly completed, will be received by the Trustee or
the Designated Agent not later than the fifth Business Day after the date of
such telegram, telex, facsimile transmission or letter, provided that such
telegram, telex, facsimile transmission or letter shall only be effective if
this Note and duly completed form are received by the Trustee or the Designated
Agent by such fifth Business Day. Exercise of such repayment option by the
holder hereof will be irrevocable. In the event of repayment of this Note in
part only, a new Note of like tenor for the unrepaid portion hereof and
otherwise having the same terms as this Note shall be issued in the name of the
holder hereof upon the presentation and surrender hereof.
If this Note is an Original Issue Discount Note as specified on the
face hereof, the amount payable to the holder of this Note in the event of
redemption, repayment or acceleration of maturity of this Note will be equal to
the sum of (i) the Issue Price specified on the face hereof (increased by any
accruals of the Discount, as defined below) and, in the event of any redemption
of this Note (if applicable), multiplied by the Initial Redemption Percentage
(as adjusted by the Annual Redemption Percentage Reduction, if applicable) and
(ii) any unpaid interest on this Note accrued from the Original Issue Date to
the Redemption Date, Repayment Date or date of acceleration of maturity, as the
case may be. The difference between the Issue Price and 100% of the principal
amount of this Note is referred to herein as the "Discount."
For purposes of determining the amount of Discount that has accrued as
of any Redemption Date, Repayment Date or date of acceleration of maturity of
this Note, such Discount will be accrued using a constant yield method. The
constant yield will be calculated using a 30-day month, 360-day year convention,
a compounding period that, except for the Initial Period (as defined below),
corresponds to the shortest period between Interest Payment Dates (with ratable
accruals within a compounding period), a coupon rate equal to the initial
<PAGE> 23
coupon rate applicable to this Note and an assumption that the maturity of this
Note will not be accelerated. If the period from the Original Issue Date to the
initial Interest Payment Date (the "Initial Period") is shorter than the
compounding period for this Note, a proportionate amount of the yield for an
entire compounding period will be accrued. If the Initial Period is longer than
the compounding period, then such period will be divided into a regular
compounding period and a short period, with the short period being treated as
provided in the preceding sentence.
The interest rate borne by this Note will be determined as follows:
(i) Unless the Interest Category of this Note is specified on the
face hereof as a "Floating Rate/Fixed Rate Note" or an "Inverse Floating Rate
Note" or as otherwise specified as Other/Additional Provisions on the face
hereof or in an Addendum hereto, this Note shall be designated as a "Regular
Floating Rate Note" and, except as set forth below or specified on the face
hereof or in an Addendum hereto, shall bear interest at the rate determined by
reference to the applicable Interest Rate Basis or Bases (a) plus or minus the
Spread, if any, and/or (b) multiplied by the Spread Multiplier, if any, in each
case as specified on the face hereof.
Commencing on the Initial Interest Reset Date, the rate at which
interest on this Note shall be payable shall be reset as of each Interest Reset
Date specified on the face hereof; provided, however, that the interest rate in
effect for the period, if any, from the Original Issue Date to the Initial
Interest Reset Date shall be the Initial Interest Rate.
(ii) If the Interest Category of this Note is specified on the face
hereof as a "Floating Rate/Fixed Rate Note", then, except as set forth below or
specified on the face hereof or in an Addendum hereto, this Note shall bear
interest at the rate determined by reference to the applicable Interest Rate
Basis or Bases (a) plus or minus the Spread, if any, and/or (b) multiplied by
the Spread Multiplier, if any. Commencing on the Initial Interest Reset Date,
the rate at which interest on this Note shall be payable shall be reset as of
each Interest Reset Date; provided, however, that (y) the interest rate in
effect for the period, if any, from the Original Issue Date to the Initial
Interest Reset Date shall be the Initial Interest Rate and (z) the interest rate
in effect for the period commencing on the Fixed Rate Commencement Date
specified on the face hereof to the Maturity Date shall be the Fixed Interest
Rate specified on the face hereof or, if no such Fixed Interest Rate is
specified, the interest rate in effect hereon on the day immediately preceding
the Fixed Rate Commencement Date.
(iii) If the Interest Category of this Note is specified on the face
hereof as an "Inverse Floating Rate Note," then, except as set forth below or
specified on the face hereof or in an Addendum hereto, this Note shall bear
interest at the Fixed Interest Rate minus the rate determined by reference to
the applicable Interest Rate Basis or Bases (a) plus or minus the Spread, if
any, and/or (b) multiplied by the Spread Multiplier, if any; provided, however,
that, unless otherwise specified on the face hereof or in an Addendum hereto,
the interest rate hereon shall not be less than zero. Commencing on the Initial
Interest Reset Date, the rate at which interest on this Note shall be payable
shall be reset as of each Interest Reset Date;
<PAGE> 24
provided, however, that the interest rate in effect for the period, if any, from
the Original Issue Date to the Initial Interest Reset Date shall be the Initial
Interest Rate.
Except as set forth above or specified on the face hereof or in an
Addendum hereto, the interest rate in effect on each day shall be (i) if such
day is an Interest Reset Date, the interest rate determined as of the Interest
Determination Date (as defined below) immediately preceding such Interest Reset
Date or (ii) if such day is not an Interest Reset Date, the interest rate
determined as of the Interest Determination Date immediately preceding the most
recent Interest Reset Date. If any Interest Reset Date would otherwise be a day
that is not a Business Day, such Interest Reset Date shall be postponed to the
next succeeding Business Day, except that if LIBOR is an applicable Interest
Rate Basis and such Business Day falls in the next succeeding calendar month,
such Interest Reset Date shall be the immediately preceding Business Day. In
addition, if the Treasury Rate is an applicable Interest Rate Basis and the
Interest Determination Date would otherwise fall on an Interest Reset Date, then
such Interest Reset Date will be postponed to the next succeeding Business Day.
The interest rate applicable to each Interest Reset Period commencing
on the related Interest Reset Date will be determined by the Calculation Agent
as of the applicable Interest Determination Date and will be calculated by the
Calculation Agent on or prior to the Calculation Date (as defined below), except
with respect to LIBOR and the Eleventh District Cost of Funds Rate, which will
be calculated on such Interest Determination Date. The "Interest Determination
Date" with respect to the CD Rate, the CMT Rate, the Commercial Paper Rate, the
Federal Funds Rate and the Prime Rate will be the second Business Day
immediately preceding the applicable Interest Reset Date; the "Interest
Determination Date" with respect to the Eleventh District Cost of Funds Rate
shall be the last business day of the month immediately preceding the applicable
Interest Reset Date on which the Federal Home Loan Bank of San Francisco (the
"FHLB of San Francisco") publishes the Index (as defined below); and the
"Interest Determination Date" with respect to LIBOR shall be the second London
Business Day immediately preceding the applicable Interest Reset Date, unless
the Index Currency is British pounds sterling, in which case the "Interest
Determination Date" will be the applicable Interest Reset Date. The "Interest
Determination Date", with respect to the Treasury Rate shall be the day in the
week in which the applicable Interest Reset Date falls on which day Treasury
Bills (as defined below) are normally auctioned (Treasury Bills are normally
sold at an auction held on Monday of each week, unless that day is a legal
holiday, in which case the auction is normally held on the following Tuesday,
except that such auction may be held on the preceding Friday); provided,
however, that if an auction is held on the Friday of the week preceding the
applicable Interest Reset Date, the "Interest Determination Date" shall be such
preceding Friday. If the interest rate of this Note is determined with reference
to two or more Interest Rate Bases specified on the face hereof, the "Interest
Determination Date" pertaining to this Note shall be the most recent Business
Day which is at least two Business Days prior to the applicable Interest Reset
Date on which each Interest Rate Basis is determinable. Each Interest Rate Basis
shall be determined as of such date, and the applicable interest rate shall take
effect on the applicable Interest Reset Date.
<PAGE> 25
Unless otherwise specified on the face hereof or in an Addendum hereto,
the rate with respect to each Interest Rate Basis will be determined in
accordance with the following provisions.
CD Rate. If an Interest Rate Basis for this Note is specified on the
face hereof as the CD Rate, the CD Rate shall be determined as of the applicable
Interest Determination Date (a "CD Rate Interest Determination Date") as the
rate on such date for negotiable United States dollar certificates of deposit
having the Index Maturity specified on the face hereof as published by the Board
of Governors of the Federal Reserve System in "Statistical Release H.15(519),
Selected Interest Rates" or any successor publication ("H.15(519)") under the
heading "CDS (Secondary Market)," or, if not published by 3:00 P.M., New York
City time, on the related Calculation Date, the rate on such CD Rate Interest
Determination Date for negotiable United States dollar certificates of deposit
of the Index Maturity as published by the Federal Reserve Bank of New York in
its daily statistical release "Composite 3:30 P.M. Quotations for United States
Government Securities" or any successor publication ("Composite Quotations")
under the heading "Certificates of Deposit." If such rate is not yet published
in either H.15(519) or Composite Quotations by 3:00 P.M., New York City time, on
the related Calculation Date, then the CD Rate on such CD Rate Interest
Determination Date will be calculated by the Calculation Agent specified on the
face hereof and will be the arithmetic mean of the secondary market offered
rates as of 10:00 A.M., New York City time, on such CD Rate Interest
Determination Date, of three leading nonbank dealers in negotiable United States
dollar certificates of deposit in The City of New York selected by the
Calculation Agent for negotiable United States dollar certificates of deposit of
major United States money center banks in the market for negotiable United
States dollar certificates of deposit with a remaining maturity closest to the
Index Maturity in an amount that is representative for a single transaction in
that market at that time; provided, however, that if the dealers so selected by
the Calculation Agent are not quoting as mentioned in this sentence, the CD Rate
determined as of such CD Rate Interest Determination Date will be the CD Rate in
effect on such CD Rate Interest Determination Date.
CMT Rate. If an Interest Rate Basis for this Note is specified on the
face hereof as the CMT Rate, the CMT Rate shall be determined as of the
applicable Interest Determination Date (a "CMT Rate Interest Determination
Date") as the rate displayed on the Designated CMT Telerate Page (as defined
below) under the caption ". . . Treasury Constant Maturities . . . Federal
Reserve Board Release H.15 . . . Mondays Approximately 3:45 P.M.," under the
column for the Designated CMT Maturity Index (as defined below) for (i) if the
Designated CMT Telerate Page is 7055, the rate on such CMT Rate Interest
Determination Date and (ii) if the Designated CMT Telerate Page is 7052, the
weekly or monthly average, as specified on the face hereof, for the week or
month, as applicable, ended immediately preceding the week or month, as
applicable, in which the related CMT Rate Interest Determination Date occurs. If
such rate is no longer displayed on the relevant page or is not displayed by
3:00 P.M., New York City time, on the related Calculation Date, then the CMT
Rate for such CMT Rate Interest Determination Date will be such treasury
constant maturity rate for the Designated CMT Maturity Index as published in
H.15(519). If such rate is no longer published or is not published by 3:00 P.M.,
New York City time, on the related Calculation Date, then the CMT
<PAGE> 26
Rate on such CMT Rate Interest Determination Date will be such treasury constant
maturity rate for the Designated CMT Maturity Index (or other United States
Treasury rate for the Designated CMT Maturity Index) for the CMT Rate Interest
Determination Date with respect to such Interest Reset Date as may then be
published by either the Board of Governors of the Federal Reserve System or the
United States Department of the Treasury that the Calculation Agent determines
to be comparable to the rate formerly displayed on the Designated CMT Telerate
Page and published in H.15(519). If such information is not provided by 3:00
P.M., New York City time, on the related Calculation Date, then the CMT Rate on
the CMT Rate Interest Determination Date will be calculated by the Calculation
Agent and will be a yield to maturity, based on the arithmetic mean of the
secondary market closing offer side prices as of approximately 3:30 P.M., New
York City time, on such CMT Rate Interest Determination Date reported, according
to their written records, by three leading primary United States government
securities dealers (each, a "Reference Dealer") in The City of New York selected
by the Calculation Agent (from five such Reference Dealers selected by the
Calculation Agent and eliminating the highest quotation (or, in the event of
equality, one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest)), for the most recently issued direct noncallable
fixed rate obligations of the United States ("Treasury Notes") with an original
maturity of approximately the Designated CMT Maturity Index and a remaining term
to maturity of not less than such Designated CMT Maturity Index minus one year.
If the Calculation Agent is unable to obtain three such Treasury Note
quotations, the CMT Rate on such CMT Rate Interest Determination Date will be
calculated by the Calculation Agent and will be a yield to maturity based on the
arithmetic mean of the secondary market offer side prices as of approximately
3:30 P.M., New York City time, on such CMT Rate Interest Determination Date of
three Reference Dealers in The City of New York (from five such Reference
Dealers selected by the Calculation Agent and eliminating the highest quotation
(or, in the event of equality, one of the highest) and the lowest quotation (or,
in the event of equality, one of the lowest)), for Treasury Notes with an
original maturity of the number of years that is the next highest to the
Designated CMT Maturity Index and a remaining term to maturity closest to the
Designated CMT Maturity Index and in an amount of at least U.S.$100 million. If
three or four (and not five) of such Reference Dealers are quoting as described
above, then the CMT Rate will be based on the arithmetic mean of the offer
prices obtained and neither the highest nor the lowest of such quotes will be
eliminated; provided, however, that if fewer than three Reference Dealers
selected by the Calculation Agent are quoting as mentioned herein, the CMT Rate
determined as of such CMT Rate Interest Determination Date will be the CMT Rate
in effect on such CMT Rate Interest Determination Date. If two Treasury Notes
with an original maturity as described in the second preceding sentence have
remaining terms to maturity equally close to the Designated CMT Maturity Index,
the Calculation Agent will obtain quotations for the Treasury Note with the
shorter remaining term to maturity and will use such quotations to calculate the
CMT Rate as set forth above.
"Designated CMT Telerate Page" means the display on the Dow Jones
Telerate Service (or any successor service) on the page specified on the face
hereof (or any other page as may replace such page on that service (or any
successor service) for the purpose of displaying Treasury Constant Maturities as
reported in H.15(519)). If no such page is specified on the face hereof, the
Designated CMT Telerate Page shall be 7052, for the most recent week.
<PAGE> 27
"Designated CMT Maturity Index" means the original period to maturity
of the United States Treasury securities (either one, two, three, five, seven,
10, 20 or 30 years) specified on the face hereof with respect to which the CMT
Rate will be calculated. If no such maturity is specified on the face hereof,
the Designated CMT Maturity Index shall be two years.
Commercial Paper Rate. If an Interest Rate Basis for this Note is
specified on the face hereof as the Commercial Paper Rate, the Commercial Paper
Rate shall be determined as of the applicable Interest Determination Date (a
"Commercial Paper Rate Interest Determination Date") as the Money Market Yield
(as defined below) on such date of the rate for commercial paper having the
Index Maturity as published in H.15(519) under the heading "Commercial Paper -
NonFinancial."
In the event that such rate is not published by 3:00 P.M., New York
City time, on the related Calculation Date, then the Commercial Paper Rate on
such Commercial Paper Rate Interest Determination Date will be the Money Market
Yield of the rate or commercial paper having the Index Maturity as published in
Composite Quotations under the heading "Commercial Paper" (with an Index
Maturity of one month or three months being deemed to be equivalent to an Index
Maturity of 30 days or 90 days, respectively). If such rate is not yet published
in either H.l5(519) or Composite Quotations by 3:00 P.M., New York City time, on
the related Calculation Date, then the Commercial Paper Rate on such Commercial
Paper Rate Interest Determination Date will be calculated by the Calculation
Agent and shall be the Money Market Yield of the arithmetic mean of the offered
rates at approximately 11:00 A.M., New York City time, on such Commercial Paper
Rate Interest Determination Date of three leading dealers of commercial paper in
The City of New York selected by the Calculation Agent for commercial paper
having the Index Maturity placed for an industrial issuer whose bond rating is
"AA," or the equivalent, from a nationally recognized statistical rating
organization; provided, however, that if the dealers so selected by the
Calculation Agent are not quoting as mentioned in this sentence, the Commercial
Paper Rate determined as of such Commercial Paper Rate Interest Determination
Date will be the Commercial Paper Rate in effect on such Commercial Paper Rate
Interest Determination Date.
"Money Market Yield" means a yield (expressed as a percentage)
calculated in accordance with the following formula:
Money Market Yield = D x 360 x 100
-------------
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal, and "M" refers to the actual
number of days in the Interest Period for which interest is being calculated.
Eleventh District Cost of Funds Rate. If an Interest Rate Basis for
this Note is specified on the face hereof as the Eleventh District Cost of Funds
Rate, the Eleventh District Cost of Funds Rate shall be determined as of the
applicable Interest Determination Date (an "Eleventh
<PAGE> 28
District Cost of Funds Rate Interest Determination Date") as the rate equal to
the monthly weighted average cost of funds for the calendar month immediately
preceding the month in which such Eleventh District Cost of Funds Rate Interest
Determination Date falls, as set forth under the caption "llth District" on
Telerate Page 7058 as of 11:00 A.M., San Francisco time, on such Eleventh
District Cost of Funds Rate Interest Determination Date. If such rate does not
appear on Telerate Page 7058 on such Eleventh District Cost of Funds Rate
Interest Determination Date, then the Eleventh District Cost of Funds Rate on
such Eleventh District Cost of Funds Rate Interest Determination Date shall be
the monthly weighted average cost of funds paid by member institutions of the
Eleventh Federal Home Loan Bank District that was most recently announced (the
"Index") by the FHLB of San Francisco as such cost of funds for the calendar
month immediately preceding such Eleventh District Cost of Funds Rate Interest
Determination Date. If the FHLB of San Francisco fails to announce the Index on
or prior to such Eleventh District Cost of Funds Rate Interest Determination
Date for the calendar month immediately preceding such Eleventh District Cost of
Funds Rate Interest Determination Date, the Eleventh District Cost of Funds Rate
determined as of such Eleventh District Cost of Funds Rate Interest
Determination Date will be the Eleventh District Cost of Funds Rate in effect on
such Eleventh District Cost of Funds Rate Interest Determination Date.
Federal Funds Rate. If an Interest Rate Basis for this Note is
specified on the face hereof as the Federal Funds Rate, the Federal Funds Rate
shall be determined as of the applicable Interest Determination Date (a "Federal
Funds Rate Interest Determination Date") as the rate on such date for United
States dollar federal funds as published in H.15(519) under the heading "Federal
Funds (Effective)" or, if not published by 3:00 P.M., New York City time, on the
Calculation Date, the rate on such Federal Funds Rate Interest Determination
Date as published in Composite Quotations under the heading "Federal
Funds/Effective Rate." If such rate is not published in either H.15(519) or
Composite Quotations by 3:00 P.M., New York City time, on the related
Calculation Date, then the Federal Funds Rate on such Federal Funds Interest
Determination Date shall be calculated by the Calculation Agent and will be the
arithmetic mean of the rates for the last transaction in overnight United States
dollar federal funds arranged by three leading brokers of federal funds
transactions in The City of New York selected by the Calculation Agent, prior to
9:00 A.M., New York City time, on such Federal Funds Rate Interest Determination
Date; provided, however, that if the brokers so selected by the Calculation
Agent are not quoting as mentioned in this sentence, the Federal Funds Rate
determined as of such Federal Funds Rate Interest Determination Date will be the
Federal Funds Rate in effect on such Federal Funds Rate Interest Determination
Date.
LIBOR. If an Interest Rate Basis for this Note is specified on the face
hereof as LIBOR, LIBOR shall be determined by the Calculation Agent as of the
applicable Interest Determination Date (a "LIBOR Interest Determination Date")
in accordance with the following provisions:
(i) if (a) "LIBOR Reuters" is specified on the face
hereof, the arithmetic mean of the offered rates (unless the Designated
LIBOR Page (as defined below) by its terms provides only for a single
rate, in which case such single rate will be used) for deposits in the
Index Currency having the Index Maturity, commencing on the applica-
<PAGE> 29
ble Interest Reset Date, that appear (or, if only a single rate is
required as aforesaid, appears) on the Designated LIBOR Page (as
defined below) as of 11:00 A.M., London time, on such LIBOR Interest
Determination Date, or (b) "LIBOR Telerate" is specified on the face
hereof, or if neither "LIBOR Reuters" nor "LIBOR Telerate" is specified
on the face hereof as the method for calculating LIBOR, the rate for
deposits in the Index Currency having the Index Maturity, commencing on
such Interest Reset Date, that appears on the Designated LIBOR Page as
of 11:00 A.M., London time, on such LIBOR Interest Determination Date.
If fewer than two such offered rates appear, or if no such rate
appears, as applicable, LIBOR on such LIBOR Interest Determination Date
shall be determined in accordance with the provisions described in
clause (ii) below.
(ii) With respect to a LIBOR Interest Determination Date
on which fewer than two offered rates appear, or no rate appears, as
the case may be, on the Designated LIBOR Page as specified in clause
(i) above, the Calculation Agent shall request the principal London
offices of each of four major reference banks in the London interbank
market, as selected by the Calculation Agent, to provide the
Calculation Agent with its offered quotation for deposits in the Index
Currency for the period of the Index Maturity, commencing on the
applicable Interest Reset Date, to prime banks in the London interbank
market at approximately 11:00 A.M., London time, on such LIBOR Interest
Determination Date and in a principal amount that is representative for
a single transaction in such Index Currency in such market at such
time. If at least two such quotations are so provided, then LIBOR on
such LIBOR Interest Determination Date will be the arithmetic mean of
such quotations. If fewer than two such quotations are so provided,
then LIBOR on such LIBOR Interest Determination Date will be the
arithmetic mean of the rates quoted at approximately 11:00 A.M., in the
applicable Principal Financial Center, on such LIBOR Interest
Determination Date by three major banks in such Principal Financial
Center selected by the Calculation Agent for loans in the Index
Currency to leading European banks, having the Index Maturity and in a
principal amount that is representative for a single transaction in
such Index Currency in such market at such time; provided, however,
that if the banks so selected by the Calculation Agent are not quoting
as mentioned in this sentence, LIBOR determined as of such LIBOR
Interest Determination Date shall be LIBOR in effect on such LIBOR
Interest Determination Date.
"Index Currency" means the currency or composite currency specified on
the face hereof as to which LIBOR shall be calculated.
If no such currency or composite currency is specified on the face hereof, the
Index Currency shall be United States dollars.
"Designated LIBOR Page" means (a) if "LIBOR Reuters" is specified on
the face hereof, the display on the Reuter Monitor Money Rates Service (or any
successor service) on the page specified on the face hereof (or any other page
as may replace such page on such service (or any successor service)), for the
purpose of displaying the London interbank rates of
<PAGE> 30
major banks for the Index Currency, or (b) if "LIBOR Telerate" is specified on
the face hereof or neither "LIBOR Reuters" nor "LIBOR Telerate" is specified on
the face hereof as the method for calculating LIBOR, the display on the Dow
Jones Telerate Service (or any successor service) on the page specified on the
face hereof (or any other page as may replace such page on such service (or any
successor service)), for the purpose of displaying the London interbank rates of
major banks for the applicable Index Currency.
Prime Rate. If an Interest Rate Basis for this Note is specified on the
face hereto as the Prime Rate, the Prime Rate shall be determined as of the
applicable Interest Determination Date (a "Prime Rate Interest Determination
Date") as the rate on such date as such rate is published in H.15(519) under the
heading "Bank Prime Loan." If such rate is not published prior to 3:00 P.M., New
York City time, on the related Calculation Date, then the Prime Rate shall be
the arithmetic mean of the rates of interest publicly announced by each bank
that appears on the Reuters Screen USPRIME1 Page (as defined below) as such
bank's prime rate or base lending rate as in effect for such Prime Rate Interest
Determination Date. If fewer than four such rates appear on the Reuters Screen
USPRIME1 Page for such Prime Rate Interest Determination Date, then the Prime
Rate shall be the arithmetic mean of the prime rates quoted on the basis of the
actual number of days in the year divided by a 360-day year as of the close of
business on such Prime Rate Interest Determination Date by four major money
center banks in The City of New York selected by the Calculation Agent. If fewer
than four such quotations are so provided, the Prime Rate shall be the
arithmetic mean of four prime rates quoted on the basis of the actual number of
days in the year divided by a 360-day year as of the close of business on such
Prime Rate Interest Determination Date as furnished in The City of New York by
the major money center banks, if any, that have provided such quotations and by
a reasonable number of substitute banks or trust companies to obtain four such
prime rate quotations, provided such substitute banks or trust companies are
organized and doing business under the laws of the United States, or any State
thereof, each having total equity capital of at least U.S.$500 million and being
subject to supervision or examination by Federal or State authority, selected by
the Calculation Agent to provide such rate or rates; provided, however, that if
the banks or trust companies so selected by the Calculation Agent are not
quoting as mentioned in this sentence, the Prime Rate determined as of such
Prime Rate Interest Determination Date will be the Prime Rate in effect on such
Prime Rate Interest Determination Date.
"Reuters Screen USPRIME1 Page" means the display designated as page
"USPRIME1" on the Reuter Monitor Money Rates Service (or any successor service)
(or such other page as may replace the USPRIME1 page on such service (or any
successor service) for the purpose of displaying prime rates or base lending
rates of major United States banks).
Treasury Rate. If an Interest Rate Basis for this Note is specified on
the face hereof as the Treasury Rate, the Treasury Rate shall be determined as
of the applicable Interest Determination Date (a "Treasury Rate Interest
Determination Date") as the rate from the auction held on such Treasury Rate
Interest Determination Date (the "Auction") of direct obligations of the United
States ("Treasury Bills") having the Index Maturity, as such rate is published
in H.15(519) under the heading "Treasury bills-auction average (investment)" or,
if not published by 3:00 P.M., New York City time, on the related Calculation
Date, the auction average rate
<PAGE> 31
of such Treasury Bills (expressed as a bond equivalent on the basis of a year of
365 or 366 days, as applicable, and applied on a daily basis) as otherwise
announced by the United States Department of the Treasury. In the event that the
results of the Auction of Treasury Bills having the Index Maturity are not
reported as provided above by 3:00 P.M., New York City time, on such Calculation
Date, or if no such Auction is held, then the Treasury Rate shall be calculated
by the Calculation Agent and shall be a yield to maturity (expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as applicable, and applied
on a daily basis) of the arithmetic mean of the secondary market bid rates, as
of approximately 3:30 P.M., New York City time, on such Treasury Rate Interest
Determination Date, of three leading primary United States government securities
dealers selected by the Calculation Agent, for the issue of Treasury Bills with
a remaining maturity closest to the Index Maturity; provided, however, that if
the dealers so selected by the Calculation Agent are not quoting as mentioned in
this sentence, the Treasury Rate determined as of such Treasury Rate Interest
Determination Date will be the Treasury Rate in effect on such Treasury Rate
Interest Determination Date.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, in each case as specified on the face hereof. The
interest rate on this Note will in no event be higher than the maximum rate
permitted by New York law, as the same may be modified by United States law of
general application.
The "Calculation Date", if applicable, pertaining to any Interest
Determination Date shall be the earlier of (i) the tenth calendar day after such
Interest Determination Date or, if such day is not a Business Day, the next
succeeding Business Day or (ii) the Business Day immediately preceding the
applicable Interest Payment Date or the Maturity Date, as the case may be. At
the request of the Holder hereof, the Calculation Agent will provide to the
Holder hereof the interest rate hereon then in effect and, if determined, the
interest rate that will become effective as a result of a determination made for
the next succeeding Interest Reset Date.
Accrued interest hereon shall be an amount calculated by multiplying
the principal amount hereof by an accrued interest factor. Such accrued interest
factor shall be computed by adding the interest factor calculated for each day
in the applicable Interest Period. Unless otherwise specified as the Day Count
Convention on the face hereof, the interest factor for each such date shall be
computed by dividing the interest rate applicable to such day by 360 if the CD
Rate, the Commercial Paper Rate, the Eleventh District Cost of Funds Rate, the
Federal Funds Rate, LIBOR or the Prime Rate is an applicable Interest Rate Basis
or by the actual number of days in the year if the CMT Rate or the Treasury Rate
is an applicable Interest Rate Basis. Unless otherwise specified as the Day
Count Convention on the face hereof, the interest factor for this Note, if the
interest rate is calculated with reference to two or more Interest Rate Bases,
shall be calculated in each period in the same manner as if only the Applicable
Interest Rate Basis specified on the face hereof applied. All percentages
resulting from any calculation on this Note shall be rounded to the nearest one
hundred-thousandth of a percentage point, with five one-millionths of a
percentage point
<PAGE> 32
rounded upwards (e.g., 5.876545% (or .05876545) would be rounded to 5.87655% (or
.0587655)), and all amounts used in or resulting from such calculation on this
Note shall be rounded, in the case of United States dollars, to the nearest cent
or, in the case of a Specified Currency other than United States dollars or a
composite currency, to the nearest unit (with one-half cent or unit being
rounded upwards).
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Notes or (ii) certain covenants and Events of Default with
respect to the Notes, in each case upon compliance with certain conditions set
forth therein, which provisions apply to the Notes.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Partnership and the rights of the holders of the Securities at any time by the
Partnership and the Trustee with the consent of the holders of not less than a
majority of the aggregate principal amount of all Securities at the time
outstanding and affected thereby. The Indenture also contains provisions
permitting the holders of not less than a majority of the aggregate principal
amount of the outstanding Securities of any series, on behalf of the holders of
all such Securities, to waive compliance by the Partnership with certain
provisions of the Indenture. Furthermore, provisions in the Indenture permit the
holders of not less than a majority of the aggregate principal amount of the
outstanding Securities of any series, in certain instances, to waive, on behalf
of all of the holders of Securities of such series, certain past defaults under
the Indenture and their consequences. Any such consent or waiver by the holder
of this Note shall be conclusive and binding upon such holder and upon all
future holders of this Note and other Notes issued upon the registration of
transfer hereof or in exchange hereof or in lieu hereof, whether or not notation
of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Partnership, which
is absolute and unconditional, to pay principal, premium, if any, and interest
in respect of this Note at the times, places and rate or formula, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, the transfer of this Note is registrable in the Security
Register of the Partnership upon surrender of this Note for registration of
transfer at the office or agency of the Partnership in any place where the
principal hereof and any premium or interest hereon are payable, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Partnership and the Security Registrar, duly executed by, the holder hereof
or by his attorney duly authorized in writing, and thereupon one or more new
Notes, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
<PAGE> 33
As provided in the Indenture and subject to certain limitations therein
and herein set forth, this Note is exchangeable for a like aggregate principal
amount of Notes of different authorized denominations but otherwise having the
same terms and conditions, as requested by the holder hereof surrendering the
same.
No service charge shall be made for any such registration of transfer
or exchange, but the Partnership may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Partnership, the Trustee and any agent of the Partnership or the Trustee may
treat the holder in whose name this Note is registered as the owner thereof for
all purposes, whether or not this Note be overdue, and neither the Partnership,
the Trustee nor any such agent shall be affected by notice to the contrary.
This Note and all documents, agreements, understandings and
arrangements relating to any transaction contemplated hereby or thereby have
been executed or entered into by the undersigned in his/her capacity as an
officer of the sole general partner of the Partnership which has been formed as
a Delaware limited partnership, and not individually, and neither the general
partner, officers, employees or limited partners of the Partnership shall be
bound or have any personal liability hereunder or thereunder. The holder of this
Note by accepting this Note waives and releases all such liability. This waiver
and release are part of the consideration for the issue of this Note. Each party
hereto shall look solely to the assets of the Partnership for satisfaction of
any liability of the Partnership in respect of this Note and all documents,
agreements, understandings and arrangements relating to any transaction
contemplated hereby or thereby and will not seek recourse or commence any action
against any of the general partner, officers, employees or limited partners of
the Partnership or any of their personal assets for the performance or payment
of any obligation hereunder or thereunder. The foregoing shall also apply to any
future documents, agreements, understandings, arrangements and transactions
between the parties hereto.
The Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of New York without regard to principles
of conflicts of laws.
<PAGE> 34
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - ____________ Custodian ____________
(Cust) (Minor)
Under Uniform Gifts to Minors Act _____________________
(State)
Additional abbreviations may also be used though not in the above list.
<PAGE> 35
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_______________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
________________________________________________________________________________
this Note and all rights thereunder hereby irrevocably constituting and
appointing - ______________________ Attorney to transfer this Note on the books
of the Trustee, with full power
________________________________________________________________________________
of substitution in the premises.
Dated:_____________________
NOTICE: The signature(s) on this Assignment must correspond with the
name(s) as written upon the face of this Note in every particular, without
alteration or enlargement or any change whatsoever.
<PAGE> 36
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Partnership to repay this Note (or portion hereof specified below) pursuant to
its terms at a price equal to 100% of the principal amount to be repaid,
together with unpaid interest accrued hereon to the Repayment Date, to the
undersigned, at
________________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee or the Designated Agent must
receive at its corporate trust office in the Borough of Manhattan, The City of
New York, this Note with this "Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of U.S. $1,000 (or, if the
Specified Currency is other than United States dollars, the minimum Authorized
Denomination specified on the face hereof)) which the holder elects to have
repaid and specify the denomination or denominations (which shall be an
Authorized Denomination) of the Notes to be issued to the holder for the portion
of this Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid).
Principal Amount
to be Repaid: $_____________
Date:__________ Notice: The signature(s) on this Option to
Elect Repayment must correspond with the
name(s) as written upon the face of this
Note in every particular, without alteration
or enlargement or any change whatsoever.
<PAGE> 37
EXHIBIT B
[FACE OF NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (THE "DEPOSITARY") (55 WATER STREET, NEW YORK, NEW YORK) TO THE
ISSUER HEREOF OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY AND ANY PAYMENT
IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.(3)
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.(4)
REGISTERED [PRINCIPAL AMOUNT]
No. FXR-
CUSIP:*
SUMMIT PROPERTIES PARTNERSHIP, L.P.
MEDIUM-TERM NOTE
(Fixed Rate)
ORIGINAL ISSUE DATE: INTEREST RATE: % STATED MATURITY
INTEREST PAYMENT DEFAULT RATE: % DATE:
DATE(S) ____ and ____
Other:
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: % PERCENTAGE
REDUCTION: %
- ------------------------
(3) This paragraph applies to global Notes only.
(4) This paragraph applies to global Notes only.
<PAGE> 38
OPTIONAL REPAYMENT CHECK IF AN ORIGINAL
DATE(S) ISSUE DISCOUNT NOTE
Issue Price: %
REPAYMENT PRICE: %
SPECIFIED CURRENCY: AUTHORIZED DENOMINATION: EXCHANGE RATE
[ ] United States dollars [ ] $1,000 and integral AGENT:
[ ] Other: multiples thereof
[ ] Other:
EXCHANGE RATE: ADDENDUM ATTACHED: OTHER/ADDITIONAL
U.S. $1.00 = ________ [ ] Yes PROVISIONS:
[ ] No
Summit Properties Partnership, L.P., a limited partnership duly
organized and existing under the laws of Delaware (hereinafter referred to as
the "Partnership," which term includes any successor entity under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
_______________________, or registered assigns, the principal sum of
_____________________, on the Stated Maturity Date specified above (or any
Redemption Date or Repayment Date, each as defined on the reverse hereof) (each
such Stated Maturity Date, Redemption Date or Repayment Date being hereinafter
referred to as the "Maturity Date" with respect to the principal repayable on
such date) and to pay interest thereon, at the Interest Rate per annum specific
above, until the principal hereof is paid or duly made available for payment,
and (to the extent that the payment of such interest shall be legally
enforceable) at the Default Rate per annum specified above on any overdue
principal, premium and/or interest, including any overdue sinking fund or
redemption payment. The Partnership will pay interest in arrears on each
Interest Payment Date, if any, specified above (each, an "Interest Payment
Date"), commencing with the first Interest Payment Date next succeeding the
Original Issue Date specified above, and on the Maturity Date; provided,
however, that if the Original Issue Date occurs between a Record Date (as
defined below) and the next succeeding Interest Payment Date, interest payments
will commence on the second Interest Payment Date next succeeding the Original
Issue Date to the holder of this Note on the Record Date with respect to such
second Interest Payment Date. Interest on this Note will be computed on the
basis of a 360-day year of twelve 30-day months.
Interest on this Note will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for (or from, and including, the Original Issue Date if no interest has been
paid or duly provided for) to, but excluding, the applicable Interest Payment
Date or the Maturity Date, as the case may be (each, an "Interest Period"). The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, subject to certain exceptions described herein, be paid to
<PAGE> 39
the person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the fifteenth calendar day (whether or
not a Business Day, as defined below) immediately preceding such Interest
Payment Date (the "Record Date"); provided, however, that interest payable on
the Maturity Date will be payable to the person to whom the principal hereto and
premium, if any, hereon shall be payable. Any such interest not so punctually
paid or duly provided for ("Defaulted Interest") will forthwith cease to be
payable to the holder on any Record Date, and shall be paid to the person in
whose name this Note is registered at the close of business on a special record
date (the "Special Record Date") for the payment of such Defaulted Interest to
be fixed by the Trustee hereinafter referred to, notice whereof shall be given
to the holder of this Note by the Trustee not more than 15 days and not less
than 10 days prior to such Special Record Date or may be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which this Note may be listed, and upon such notice as may be
required by such exchange, all as more fully provided for in the Indenture.
Payment of principal, premium, if any, and interest in respect of this
Note due on the Maturity Date or any prior date on which the principal or an
installment of principal of this Note becomes due and payable, whether by the
declaration of acceleration or otherwise, will be made in immediately available
funds upon presentation and surrender of this Note (and, with respect to any
applicable repayment of this Note, upon presentation and surrender of this Note
and a duly completed election form as contemplated on the reverse hereof) at the
office or agency maintained by the Partnership for that purpose in the Borough
of Manhattan, The City of New York, currently the office of the Trustee or the
Designated Agent; provided, however, that if the Specified Currency specified
above is other than United States dollars and such payment is to be made in the
Specified Currency in accordance with the provisions set forth below, such
payment may be made by wire transfer of immediately available funds to an
account with a bank designated by the holder hereof at least 15 calendar days
prior to the Maturity Date, provided that such bank has appropriate facilities
therefor and that this Note (and, if applicable, a duly completed repayment
election form) is presented and surrendered at the aforementioned office or
agency maintained by the Partnership in time for the Trustee or the Designated
Agent to make such payment in such funds in accordance with its normal
procedures. Payment of interest due on any Interest Payment Date other than the
Maturity Date will be made at the aforementioned office or agency maintained by
the Partnership or, at the option of the Partnership, by check mailed to the
address of the person entitled thereto as such address shall appear in the
Security Register maintained by the Trustee or the Designated Agent; provided,
however, that a holder of U.S. $10,000,000 (or, if the Specified Currency is
other than United States dollars, the equivalent thereof in the Specified
Currency) or more in aggregate principal amount of Notes (whether having
identical or different terms and pro- visions) will be entitled to receive
interest payments on any Interest Payment Date other than the Maturity Date by
wire transfer of immediately available funds if appropriate wire transfer
instructions have been received in writing by the Trustee or the Designated
Agent not less than 15 calendar days prior to such Interest Payment Date. Any
such wire transfer instructions received by the Trustee or the Designated Agent
shall remain in effect until revoked by such holder.
<PAGE> 40
If any Interest Payment Date or the Maturity Date falls on a day that
is not a Business Day, the required payment of principal, premium, if any,
and/or interest shall be made on the next succeeding Business Day with the same
force and effect as if made on the date such payment was due, and no interest
shall accrue with respect to such payment for the period from and after such
Interest Payment Date or the Maturity Date, as the case may be, to the date of
such payment on the next succeeding Business Day.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking institutions
are authorized or required by law, regulation or executive order to close in The
City of New York, Chicago, or Charlotte, North Carolina; provided, however, that
if the Specified Currency is other than United States dollars, such day is also
not a day on which banking institutions are authorized or required by law,
regulation or executive order to close in the Principal Financial Center (as
defined below) of the country issuing the Specified Currency (or, if the
Specified Currency is European Currency Units ("ECU"), such day is not a day
that appears as an ECU no-settlement day on the display designated as "ISDE" on
the Reuter Monitor Money Rates Service (or a day so designated by the ECU
Banking Association), or, if ECU non-settlement days do not appear on that page
(and are not so designated), is not a day on which payments in ECU cannot be
settled in the international interbank market). Principal Financial Center means
the capital city of the country issuing the Specified Currency, except that with
respect to United States dollars, Australian dollars, Deutsche marks, Dutch
guilders, Italian lire, Swiss francs and ECU, the Principal Financial Center
shall be The City of New York, Sydney, Frankfurt, Amsterdam, Milan, Zurich and
Luxembourg, respectively.
The Partnership is obligated to make payments of principal, premium, if
any, and interest in respect of this Note in the Specified Currency (or, if the
Specified Currency is not at the time of such payment legal tender for the
payment of public and private debts, in such other coin or currency of the
country which issued the Specified Currency as at the time of such payment is
legal tender for the payment of such debts). If the Specified Currency is other
than United States dollars, except as provided below, any such amounts so
payable by the Partnership will be converted by the Exchange Rate Agent
specified above into United States dollars for payment to the holder of this
Note.
If the Specified Currency is other than United States dollars, the
holder of this Note may elect to receive such amounts in such Specified
Currency. If the holder of this Note shall not have duly made an election to
receive all or a specified portion of any payment of principal, premium, if any,
and/or interest in respect of this Note in the Specified Currency, any United
States dollar amount to be received by the holder of this Note will be based on
the highest bid quotation in The City of New York received by the Exchange Rate
Agent at approximately 11:00 A.M., New York City time, on the second Business
Day preceding the applicable payment date from three recognized foreign exchange
dealers (one of whom may be the Exchange Rate Agent) selected by the Exchange
Rate Agent and approved by the Partnership for the purchase by the quoting
dealer of the Specified Currency for United States dollars for settlement on
such payment date in the aggregate amount of such Specified Currency payable to
all holders of Foreign Currency Notes scheduled to receive United States dollar
<PAGE> 41
payments and at which the applicable dealer commits to execute a contract. All
currency exchange costs will be borne by the holder of this Note by deductions
from such payments. If three such bid quotations are not available, payments on
this Note will be made in the Specified Currency.
If the Specified Currency is other than United States dollars, the
holder of this Note may elect to receive all or a specified portion of any
payment of principal, premium, if any, and/or interest in respect of this Note
in the Specified Currency by submitting a written request for such payment to
the Trustee or the Designated Agent at its corporate trust Office in The City of
New York on or prior to the applicable Record Date or at least 15 calendar days
prior to the Maturity Date, as the case may be. Such written request may be
mailed or hand delivered or sent by cable, telex or other form of facsimile
transmission. The holder of this Note may elect to receive all or a specified
portion of all future payments in the Specified Currency in respect of such
principal, premium, if any, and/or interest and need not file a separate
election for each payment. Such election will remain in effect until revoked by
written notice to the Trustee or the Designated Agent, but written notice of any
such revocation must be received by the Trustee or the Designated Agent on or
prior to the applicable Record Date or at least 15 calendar days prior to the
Maturity Date, as the case may be.
If the Specified Currency is other than United States dollars or a
composite currency and the holder of this Note shall have duly made an election
to receive all or a specified portion of any payment of principal, premium, if
any, and/or interest in respect of this Note in the Specified Currency and if
the Specified Currency is not available due to the imposition of exchange
controls or other circumstances beyond the reasonable control of the
Partnership, the Partnership will be entitled to satisfy its obligations to the
holder of this Note by making such payment in United States dollars on the basis
of the Market Exchange Rate (as defined below) on the second Business Day prior
to such payment date or, if such Market Exchange Rate is not then available, on
the basis of the most recently available Market Exchange Rate or as otherwise
specified on the face hereof. The "Market Exchange Rate" for the Specified
Currency means the noon dollar buying rate in The City of New York for cable
transfers for such Specified Currency as certified for customs purposes by (or
if not so certified, as otherwise determined by) the Federal Reserve Bank of New
York. Any payment made under such circumstances in United States dollars will
not constitute an Event of Default (as defined in the Indenture) with respect to
this Note.
If the Specified Currency is a composite currency and the holder of
this Note shall have duly made an election to receive all or a specified portion
of any payment of principal, premium, if any, and/or interest in respect of this
Note in the Specified Currency and if such composite currency is unavailable due
to the imposition of exchange controls or other circumstances beyond the
reasonable control of the Partnership, then the Partnership will be entitled to
satisfy its obligations to the holder of this Note by making such payment in
United States dollars. The amount of each payment in United States dollars shall
be computed by the Exchange Rate Agent on the basis of the equivalent of the
composite currency in United States dollars. The component currencies of the
composite currency for this purpose (collectively, the "Component Currencies"
and each, a "Component Currency") shall be the currency amounts
<PAGE> 42
that were components of the composite currency as of the last day on which the
composite currency was used. The equivalent of the composite currency in United
States dollars shall be calculated by aggregating the United States dollar
equivalents of the Component Currencies. The United States dollar equivalent of
each of the Component Currencies shall be determined by the Exchange Rate Agent
on the basis of the most recently available Market Exchange Rate for each such
Component Currency, or as otherwise specified on the face hereof.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the holder of this Note.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof and, if so specified above on the face hereof, in
the Addendum hereto, which further provisions shall have the same force and
effect as if set forth on the face hereof.
Notwithstanding any provisions to the contrary contained herein, if the
face of this Note specifies that an Addendum is attached hereto or that
"Other/Additional Provisions" apply to this Note, this Note shall be subject to
the terms set forth in such Addendum or such "Other/Additional Provisions."
Unless the Certificate of Authentication hereon has been executed by
the Trustee or its Authenticating Agent by manual signature, this Note shall not
be entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
<PAGE> 43
IN WITNESS WHEREOF, Summit Properties Partnership, L.P. has caused this
Note to be duly executed under its seal.
Dated:__________ SUMMIT PROPERTIES PARTNERSHIP, L.P.
By: Summit Properties Inc.,
its General Partner
By:
-----------------------------------------
William F. Paulsen
President and Chief Executive Officer
(SEAL)
Attest:
- -------------------------
Michael G. Malone
Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Dated: FIRST UNION NATIONAL BANK,
as Trustee
By
------------------------------------------
Authorized Signatory
<PAGE> 44
[REVERSE OF NOTE]
SUMMIT PROPERTIES PARTNERSHIP, L.P.
MEDIUM-TERM NOTE
(Fixed Rate)
This Note is one of a duly authorized series of Securities (the
"Securities") of the Partnership issued and to be issued under an Indenture,
dated as of August 7, 1997 as supplemented by the Third Supplemental Indenture
dated as of May __, 1998, as further amended, modified or supplemented from time
to time (the "Indenture"), between the Partnership and First Union National
Bank, as Trustee (the "Trustee," which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Partnership, the Trustee and
the holders of the Securities, and of the terms upon which the Securities are,
and are to be, authenticated and delivered. This Note is one of the series of
Securities designated as "Medium-Term Notes Due Nine Months or More from Date of
Issue" (the "Notes"). All terms used but not defined in this Note or in an
Addendum hereto shall have the meanings assigned to such terms in the Indenture
or on the face hereof, as the case may be.
This Note is issuable only in registered form without coupons in
minimum denominations of U.S. $1,000 and integral multiples thereof or the
minimum Authorized Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless otherwise
specified on the face hereof in accordance with the provisions of the following
two paragraphs, will not be redeemable or repayable prior to the Stated Maturity
Date.
This Note will be subject to redemption at the option of the
Partnership on any date on and after the Initial Redemption Date, if any,
specified on the face hereof, in whole or from time to time in part in
increments of U.S. $1,000 or the minimum Authorized Denomination (provided that
any remaining principal amount hereof shall be at least U.S. $1,000 or such
minimum Authorized Denomination), at the Redemption Price (as defined below),
together with unpaid interest accrued thereon to the date fixed for redemption
(each, a "Redemption Date"), on notice given not more than 60 nor less than 30
calendar days prior to the Redemption Date and in accordance with the provisions
of the Indenture. The "Redemption Price" shall initially be the Initial
Redemption Percentage specified on the face hereof multiplied by the unpaid
principal amount of this Note to be redeemed. The Initial Redemption Percentage
shall decline at each anniversary of the Initial Redemption Date by the Annual
Redemption Percentage Reduction, if any, specified on the face hereof until the
Redemption Price is 100% of the unpaid principal amount to be redeemed. In the
event of redemption of this Note in part only, a new Note of like tenor for the
unredeemed portion hereof and otherwise having the same terms as this Note shall
be issued in the name of the holder hereof upon the presentation and surrender
hereof.
<PAGE> 45
This Note will be subject to repayment by the Partnership at the option
of the holder hereof on the Optional Repayment Date(s), if any, specified on the
face hereof, in whole or in part in increments of U.S.$1,000 or the minimum
Authorized Denomination (provided that any remaining principal amount hereof
shall be at least U.S.$1,000 or such minimum Authorized Denomination), at a
repayment price equal to 100% of the unpaid principal amount to be repaid,
together with unpaid interest accrued thereon to the date fixed for repayment
(each, a "Repayment Date"). For this Note to be repaid, the Trustee or the
Designated Agent must receive at its office in the Borough of Manhattan, The
City of New York, referred to on the face hereof, at least 30 days but not more
than 60 days prior to the Repayment Date (i) this Note and the form hereon
entitled "Option to Elect Repayment" duly completed or (ii) a telegram, telex,
facsimile transmission, or a letter from a member of a national securities
exchange or the National Association of Securities Dealers, Inc. or a commercial
bank or trust company in the United States setting forth the name of the holder
hereof, the principal amount of this Note, the principal amount of this Note to
be repaid, the certificate number or a description of the tenor and terms of
this Note, a statement that the option to elect repayment is being exercised
thereby, and a guarantee that this Note, together with the form hereon entitled
"Option to Elect Repayment" duly completed, will be received by the Trustee or
the Designated Agent not later than the fifth Business Day after the date of
such telegram, telex, facsimile transmission or letter, provided that such
telegram, telex, facsimile transmission or letter shall only be effective if
this Note and duly completed form are received by the Trustee or the Designated
Agent by such fifth Business Day. Exercise of such repayment option by the
holder hereof will be irrevocable. In the event of repayment of this Note in
part only, a new Note of like tenor for the unrepaid portion hereof and
otherwise having the same terms as this Note shall be issued in the name of the
holder hereof upon the presentation and surrender hereof.
If this Note is an Original Issue Discount Note as specified on the
face hereof, the amount payable to the holder of this Note in the event of
redemption, repayment or acceleration of maturity of this Note will be equal to
the sum of (i) the Issue Price specified on the face hereof (increased by any
accruals of the Discount, as defined below) and, in the event of any redemption
of this Note (if applicable), multiplied by the Initial Redemption Percentage
(as adjusted by the Annual Redemption Percentage Reduction, if applicable) and
(ii) any unpaid interest on this Note accrued from the Original Issue Date to
the Redemption Date, Repayment Date or date of acceleration of maturity, as the
case may be. The difference between the Issue Price and 100% of the principal
amount of this Note is referred to herein as the "Discount."
For purposes of determining the amount of Discount that has accrued as
of any Redemption Date, Repayment Date or date of acceleration of maturity of
this Note, such Discount will be accrued using a constant yield method. The
constant yield will be calculated using a 30-day month, 360-day year convention,
a compounding period that, except for the Initial Period (as defined below),
corresponds to the shortest period between Interest Payment Dates (with ratable
accruals within a compounding period), a coupon rate equal to the initial coupon
rate applicable to this Note and an assumption that the maturity of this Note
will not be accelerated. If the period from the Original Issue Date to the
initial Interest Payment Date (the "Initial Period") is shorter than the
compounding period for this Note, a proportionate amount
<PAGE> 46
of the yield for an entire compounding-period will be accrued. If the Initial
Period is longer than the compounding period, then such period will be divided
into a regular compounding period and a short period, with the short period
being treated as provided in the preceding sentence.
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Notes or (ii) certain covenants and Events of Default with
respect to the Notes, in each case upon compliance with certain conditions set
forth therein, which provisions apply to the Notes.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Partnership and the rights of the holders of the Securities at any time by the
Partnership and the Trustee with the consent of the holders of not less than a
majority of the aggregate principal amount of all Securities at the time
outstanding and affected thereby. The Indenture also contains provisions
permitting the holders of not less than a majority of the aggregate principal
amount of the outstanding Securities of any series, on behalf of the holders of
all such Securities, to waive compliance by the Partnership with certain
provisions of the Indenture. Furthermore, provisions in the Indenture permit the
holders of not less than a majority of the aggregate principal amount of the
outstanding Securities of any series, in certain instances, to waive, on behalf
of all of the holders of Securities of such series, certain past defaults under
the Indenture and their consequences. Any such consent or waiver by the holder
of this Note shall be conclusive and binding upon such holder and upon all
future holders of this Note and other Notes issued upon the registration of
transfer hereof or in exchange heretofore or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Partnership, which
is absolute and unconditional, to pay principal, premium, if any, and interest
in respect of this Note at the times, places and rate or formula, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, the transfer of this Note is registrable in the Security
Register of the Partnership upon surrender of this Note for registration of
transfer at the office or agency of the Partnership in any place where the
principal hereof and any premium or interest hereon are payable, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Partnership and the Security Registrar, duly executed by, the holder hereof
or by his attorney duly authorized in writing, and thereupon one or more new
Notes, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
<PAGE> 47
As provided in the Indenture and subject to certain limitations therein
and herein set forth, this Note is exchangeable for a like aggregate principal
amount of Notes of different authorized denominations but otherwise having the
same terms and conditions, as requested by the holder hereof surrendering the
same.
No service charge shall be made for any such registration of transfer
or exchange, but the Partnership may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Partnership, the Trustee and any agent of the Partnership or the Trustee may
treat the holder in whose name this Note is registered as the owner thereof for
all purposes, whether or not this Note be overdue, and neither the Partnership,
the Trustee nor any such agent shall be affected by notice to the contrary.
This Note and all documents, agreements, understandings and
arrangements relating to any transaction contemplated hereby or thereby have
been executed or entered into by the undersigned in his/her capacity as an
officer of the sole general partner of the Partnership which has been formed as
a Delaware limited partnership, and not individually, and neither the general
partner, officers, employees or limited partners of the Partnership shall be
bound or have any personal liability hereunder or thereunder. The holder of this
Note by accepting this Note waives and releases all such liability. This waiver
and release are part of the consideration for the issue of this Note. Each party
hereto shall look solely to the assets of the Partnership for satisfaction of
any liability of the Partnership in respect of this Note and all documents,
agreements, understandings and arrangements relating to any transaction
contemplated hereby or thereby and will not seek recourse or commence any action
against any of the trustees, officers or shareholders of the Partnership or any
of their personal assets for the performance or payment of any obligation
hereunder or thereunder. The foregoing shall also apply to any future documents,
agreements, understandings, arrangements and transactions between the parties
hereto.
The Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of New York without regard to its
principles of conflicts of laws.
<PAGE> 48
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants
in common
UNIF GIFT MIN ACT - _________ Custodian _________
(Cust) (Minor)
Under Uniform Gifts to Minors Act _____________________
(State)
Additional abbreviations may also be used though not in the above list.
<PAGE> 49
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
________________________________________
(Please print or typewrite name and address including postal zip code of
assignee) this Note and all rights thereunder hereby irrevocably constituting
and appointing Attorney to transfer this Note on the books of the Trustee, with
full power of substitution in the premises.
Dated:_____________________
NOTICE: The signature(s) on this Assignment must correspond with the
name(s) as written upon the face of this Note in every particular, without
alteration or enlargement or any change whatsoever.
<PAGE> 50
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Partnership to repay this Note (or portion hereof specified below) pursuant to
its terms at a price equal to 100% of the principal amount to be repaid,
together with unpaid interest accrued hereon to the Repayment Date, to the
undersigned, at
_______________________________________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee or the Designated Agent must
receive at its corporate trust office in the Borough of Manhattan, The City of
New York, this Note with this "Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of U.S.$1,000 (or, if the
Specified Currency is other than United States dollars, the minimum Authorized
Denomination specified on the face hereof)) which the holder elects to have
repaid and specify the denomination or denominations (which shall be an
Authorized Denomination) of the Notes to be issued to the holder for the portion
of this Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid).
Principal Amount
to be Repaid: $____________
Date:_________________ Notice: The signature(s) on this Option to
Elect Repayment must correspond with the
name(s) as written upon the face of this
Note in every particular, without alteration
or enlargement or any change whatsoever.
