EXHIBIT 4.1
THE XXXXX COMPANY
AMENDED AND RESTATED FIRST SUPPLEMENTAL INDENTURE
6.94% Notes due November 30, 2008
THIS AMENDED AND RESTATED FIRST SUPPLEMENTAL INDENTURE, dated as
of December 23, 2003 (the "Amended and Restated First Supplemental
Indenture"), among THE XXXXX COMPANY, a Maryland corporation (the
"Company"), and X.X. XXXXXX TRUST COMPANY, National Association (as
successor trustee to BANK ONE, National Association, formerly known as THE
FIRST NATIONAL BANK OF CHICAGO), a national banking association duly
organized under the laws of the United States, as trustee (herein, together
with its permitted successors in the trusts hereunder, called the
"Trustee") xxxxxx and restates the first Supplemental Indenture dated as of
August 15, 2001, among the Company and the Trustee.
WITNESSETH:
WHEREAS, the Company and the Trustee have heretofore executed and
delivered an indenture, dated as of February 24, 1995, as first
supplemented by a supplemental indenture dated August 15, 2001 (the
"Indenture"), providing for the issuance from time to time of one or more
series of the Company's notes;
WHEREAS, pursuant to the Indenture, the Company has heretofore
created a series of notes denominated 6.94% Notes due November 30, 2008
(the "Notes") and has issued to Teachers Insurance and Annuity Association
of America ("TIAA") $58,000,000 principal amount of Notes;
WHEREAS, Section 902 of the Indenture provides that with the
consent of the Holders of not less than a majority in principal amount of
the Outstanding Securities of each Series affected by a supplemental
indenture, by Act of said Holders delivered to the Company and the Trustee,
the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture supplemental to the Indenture for the purpose of
adding any provisions to or changing in any manner or eliminating any of
the provisions of the Indenture or of modifying in any manner the rights of
the Holders of Securities of such series under this Indenture;
WHEREAS, the Company and TIAA have determined to amend and
restate the first supplemental indenture dated August 15, 2001, to make
certain changes to the definitions and certain other terms applicable to
the Notes;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and for other good and valuable consideration, the receipt of
which is hereby acknowledged, the Company and the Trustee hereby agree as
follows:
ARTICLE ONE
RELATION TO INDENTURE; DEFINITIONS; RULES OF CONSTRUCTION
SECTION 1.1 Relation to Indenture. This Amended and Restated
First Supplemental Indenture constitutes an integral part of the Indenture.
SECTION 1.2 Rules of Construction. For all purposes of this
Amended and Restated First Supplemental Indenture:
(a) capitalized terms used herein without definition shall have
the meanings specified in the Indenture;
(b) all references herein to Articles and Sections, unless
otherwise specified, refer to the corresponding Articles and Sections
of this Amended and Restated First Supplemental Indenture; and
(c) the terms "herein", "hereof", "hereunder" and other words of
similar import refer to this Amended and Restated First Supplemental
Indenture.
ARTICLE TWO
MODIFICATIONS TO COVENANTS
SECTION 2.1 Modifications to Existing Covenants and Additional
Covenants.
(a) The covenant set forth in Section 1008 of the Indenture shall
be modified with respect to the Notes as follows:
(i) the Ratio Calculation shall be 1.7 to 1 (instead of 1.1
to 1);
(ii) the Ratio Calculation shall be based on Total FFO and
Total Interest Expense (instead of EBDT and Consolidated
Interest Expense, respectively); and
(iii) the Ratio Calculation and other covenant-related
calculations with respect to the Notes shall be based
upon GAAP and the Company's segment accounting policies
as reflected in the Financial Statements as prepared and
provided in accordance with the Indenture.
(b) All references in the Indenture to EBDT and Consolidated
Interest Expense shall, with respect to the Notes, be deemed to mean
(and be replaced by) Total FFO and Total Interest Expense,
respectively.
(c) The Ratio Calculation for the covenants set forth in Sections
801 and 1009 of the Indenture shall, with respect to the Notes, be 1.7
to 1 (instead of 1.1 to 1).
(d) In addition to the modifications described above, the
following additional covenants are, with respect to the Notes, added
to Section 1008 of the Indenture:
(i) The Company will not, and will not permit any Subsidiary
(as to which the Company owns, directly or indirectly,
more than 50% of the voting stock therein) to, incur any
Debt if, immediately after giving effect to the
incurrence of such additional Debt, the aggregate
principal amount of outstanding Total Debt would be
greater than 65% of the sum of (i) the Gross Asset Value
as of the end of the fiscal quarter prior to the
incurrence of such additional Debt, plus (ii) any
increase in the Gross Asset Value resulting from any
acquisition completed after the end of such quarter,
including, without limitation, any pro forma increase
from the application of the proceeds of such additional
Debt, less (iii) any decrease in the Gross Asset Value
resulting from any disposition completed after the end
of such quarter.
(ii) The Company will not, and will not permit any Subsidiary
(as to which the Company owns, directly or indirectly,
more than 50% of the voting stock therein) to, incur any
Secured Debt if, immediately after giving effect to the
incurrence of such additional Secured Debt the aggregate
principal amount of all outstanding Secured Debt would
be greater than 55% until July 31, 2005, and 50%
thereafter, of the sum of (i) the Gross Asset Value as
of the end of the fiscal quarter prior to the incurrence
of such additional Secured Debt, plus (ii) any increase
in the Gross Asset Value resulting from any acquisition
completed after the end of such quarter, including,
without limitation, any pro forma increase from the
application of the proceeds of such additional Secured
Debt, less (iii) any decrease in the Gross Asset Value
resulting from any disposition completed after the end
of such quarter.
(e) In addition to the modifications described above, the
following sentence shall, with respect to the Notes, be added as the
new final sentence of Section 802 of the Indenture:
In addition to and notwithstanding the foregoing sentence, if
the Company conveys or transfers the properties and assets of the
Company substantially as an entirety in accordance with Section
801 to The Xxxxx Company LP, the predecessor Person shall not be
relieved of any obligations and covenants under the Indenture and
the Securities of this series and shall continue as (and the
successor person shall not succeed to or be substituted for) the
Company under this Indenture, but instead both the predecessor
Person and The Xxxxx Company LP shall be jointly and severally
liable for the obligations under this Indenture and the
Securities of this series.
SECTION 2.2 Defeasance. The Indenture contains provisions, which
are applicable to the Notes, for defeasance at any time of (1) the entire
indebtedness of the Notes or (2) certain restrictive covenants and Events
of Default with respect to the Notes, in each case, upon compliance with
certain conditions set forth in the Indenture.
In addition to the covenants specified in Section 1303 of the
Indenture, the defeasance provided under such Section shall be equally
applicable to the covenants added to Section 1008 of the Indenture pursuant
to paragraph (d) of Section 2.1 of this Amended and Restated First
Supplemental Indenture. To the extent the covenants added to Section 1008
of the Indenture pursuant to paragraph (d) of Section 2.1 of this Amended
and Restated Supplemental Indenture are defeased in accordance with the
Indenture, the failure of the Company to comply with such covenants shall
not be deemed to constitute or result in an Event of Default.
SECTION 2.3 Events of Default.
(a) With respect to the Notes, Clause (5) of Section 501 of the
Indenture shall be replaced with the following:
(5) a 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 Company (or
by any Subsidiary, the repayment of which the Company
has guaranteed or for which the Company is directly
responsible or liable as obligor or guarantor)
(including a default with respect to Securities of any
series other than that series) 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 from the
failure to pay such indebtedness at its maturity or
shall have resulted in such indebtedness being declared
due and payable prior to the date on which it would
otherwise have become due and payable, without such
acceleration having been rescinded or annulled, within
a period of 10 days after there shall have been given,
by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the
Outstanding Securities of that series a written notice
specifying such default and requiring the Company to
cause such acceleration to be rescinded or annulled and
stating that such notice is a "Notice of Default"
hereunder; or
SECTION 2.4 Modification of Certain Definitions. With respect to
the Notes, the definitions set forth in Section 101 of the Indenture shall
be modified as follows:
"Assets Under Development" means land and improvements
owned by a member of the Consolidated Group or an Investment
Affiliate being developed for retail, office, mixed-use or
other rental-income producing purposes which meet all four
of the following criteria: (i) such project (or phase) has
not yet been substantially completed; (ii) no rental income
has yet been received; (iii) no certificate of occupancy has
yet been issued for such project (or phase); and (iv) such
project (or phase) is classified as construction in progress
in accordance with GAAP.
"Capital Stock" means shares, interests, participations
or other equivalents (however designated) of capital stock
of a corporation, equivalent ownership interests in a Person
which is not a corporation, and warrants or options to
purchase any of the foregoing.
"Cash Equivalents" means (i) short-term obligations of,
or fully guaranteed by, the United States of America, (ii)
commercial paper rated A-1 or better by Standard & Poor's
Rating Services (or any successor) or P-1 or better by
Xxxxx'x Investors Service, Inc. (or any successor), or (iii)
certificates of deposit issued by, and time deposits with,
commercial banks (whether domestic or foreign) having
capital and surplus in excess of $100,000,000.
"Consolidated Group" means the Company and its
Subsidiaries that are consolidated with the Company for
financial reporting purposes under GAAP, and any other
Person whose financial results are included using the
proportionate share method under the Company's segment
accounting policies in the Financial Statements.
"Consolidated Group's Pro Rata Share" means, with
respect to any Investment Affiliate, the percentage of the
total ownership and financial interests held by the
Consolidated Group, in the aggregate, in such Investment
Affiliate as determined in accordance with the Company's
segment accounting policies in the Financial Statements.
"GAAP" means generally accepted accounting principles
in the United States, consistent with the accounting
principles utilized in preparing the Financial Statements in
accordance with the Indenture.
"Gross Asset Value" means, as of any determination
date, the sum of the values of the following assets of the
Consolidated Group, including the Consolidated Group's Pro
Rata Share of the values of such assets of Investment
Affiliates, based on the valuation methods set forth below:
(a) with respect to all Retail Properties, the Net
Operating Income attributable thereto for the most
recent period of four full fiscal quarters for which
financial results have been reported, divided by
0.0825;
(b) with respect to all office, mixed-use and other
income-producing properties other than Retail
Properties, the Net Operating Income attributable
thereto for the most recent period of four full fiscal
quarters for which financial results have been
reported, divided by 0.09;
(c) with respect to the Xxxxxxxxx, Nevada and Columbia,
Maryland properties and any other properties relating
to additional master-planned communities developed or
acquired after November 21, 2003, 100% of the most
recent current value thereof (without deduction for the
value of the interests of the Xxxxxx heirs therein
under the Xxxxxx Agreement) as set forth in appraisals
prepared by Xxxxxxxx Associates, Inc. (or another
nationally recognized appraisal firm selected by the
Company), provided that the Company will obtain updated
appraisals thereof at least once during each fiscal
year and also when, during any four consecutive full
fiscal quarters, any such properties having an
aggregate value in excess of 5% of Gross Asset Value as
of the end of the last full fiscal quarter are sold or
transferred;
(d) 100% of the GAAP book value of all other land, all
Assets Under Development and other non-income-producing
properties (less the portion of such value attributable
to minority interest holders);
(e) 100% of the GAAP book value of cash and Cash
Equivalents held by the Consolidated Group; and
(f) 100% of the GAAP book value of current accounts
receivable, net held by the Consolidated Group.
Notwithstanding the preceding sentence, the contribution to
the Gross Asset Value of those assets acquired in any
acquisition will be calculated prior to the date ending on
or after four full fiscal quarters subsequent to any such
acquisition using the actual acquisition cost of such assets
excluding actual transaction costs (without regard to any
adjustments which may be made in determining book value
under GAAP).
"Xxxxxx Agreement" means the Contingent Stock
Agreement, effective as of January 1, 1996, by the Company
in favor of and for the benefit of the holders and the
representatives named therein, as the same may be amended.
"Investment Affiliate" means any Person in which any
member of the Consolidated Group, directly or indirectly,
has an ownership interest, whose financial results are not
included using the proportionate share method under the
Company's segment accounting policies with the financial
results of the Consolidated Group in the Financial
Statements.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including, without
limitation, any conditional sale or other title retention
agreement or lease in the nature thereof, any filing or
agreement to file a financing statement as debtor under the
Uniform Commercial Code on any property leased to any Person
under a lease which is not in the nature of a conditional
sale or title retention agreement, or any subordination
agreement in favor of another Person).
"Net Operating Income" means, with respect to any
Property, for any period, earnings from rental operations
(computed in accordance with GAAP, but without deduction for
reserves) attributable to such Property, plus depreciation,
amortization, interest expense and deferred taxes with
respect to such Property for such period, and, if such
period is less than four full fiscal quarters, adjusted by
straight lining ordinary operating expenses which are
payable less frequently than once during every such period
(e.g., real estate taxes and insurance). The amounts
determined under the preceding sentence will be adjusted by
adding back (i) the interests of the former Xxxxxx owners
pursuant to the Xxxxxx Agreement that were excluded in
determining such amounts and (ii) dividends or other
distributions accrued with respect to such period on any
preferred stock or other preferred security issued by the
Company to the extent that such dividends or other
distributions are treated as an operating expense under
GAAP. "Net Operating Income" will be adjusted to include a
pro forma amount thereof (as determined in good faith by the
Company) for four full fiscal quarters for any Property
placed in service during any quarter and to exclude any Net
Operating Income for the prior four full fiscal quarters
from any Property not owned as of the end of any quarter.
"Person" means any individual, corporation, limited
liability company, partnership, joint venture, trust,
unincorporated organization or government or any agency or
political subdivision thereof.
"Property" means each parcel of real property owned or
operated by any member of the Consolidated Group or any
Investment Affiliate.
"Retail Property" means a shopping center or other
retail development containing more than one retail tenant in
which at least 90% of the Net Operating Income from such
center or development is attributable to retail uses.
"Secured Debt" means, as of any determination date, the
sum of:
(i) the aggregate principal amount of all Debt of
the Consolidated Group then outstanding
(including only the Company's proportionate
interest in the Debt of any Person whose
financial results are included using the
proportionate share method under the Company's
segment accounting policies in the Financial
Statements) which is secured by a Lien on any
asset (including any Capital Stock) of any
member of the Consolidated Group, including,
without limitation, loans secured by
mortgages, stock, or partnership interests,
plus
(ii) the Consolidated Group's Pro Rata Share of any
Debt of an Investment Affiliate then
outstanding which is secured by a Lien on any
asset (including any Capital Stock) of such
Investment Affiliate, without duplication of
any such items.
For purposes of the preceding sentence, "Debt" will (a)
include, with respect to any Person, any loans where such
Person is liable as a general partner or co-venturer less,
in each case, the proportionate share of any other general
or limited partners or co-venturers and (b) exclude any Debt
due from any member of the Consolidated Group or any
Investment Affiliate solely to one or more members of the
Consolidated Group.
"Subsidiary" means a Person more than 50% of the (1)
outstanding voting stock or interest in which and/or (2)
financial interest in which, is owned, directly or
indirectly, by the Company or by one or more other
Subsidiaries, or by the Company and one or more other
Subsidiaries. For purposes of this definition, "voting
stock" means stock or other interest which ordinarily has
voting power for the election of directors or equivalent
persons, whether at all times or only so long as no senior
class of stock or other interest has such voting power by
reason of any contingency.
"Total Debt" means, as of any determination date,
(i) all Debt of the Consolidated Group then
outstanding (including only the Company's
proportionate interest in the Debt of any
Person whose financial results are included
using the proportionate share method under the
Company's segment accounting policies in the
Financial Statements), plus
(ii) the Consolidated Group's Pro Rata Share of all
Debt of Investment Affiliates then
outstanding, without duplication of any such
items.
For purposes of the preceding sentence, "Debt" will (a)
include, with respect to any Person, any loans where such
Person is liable as a general partner or co-venturer less,
in each case, the proportionate share of any other general
or limited partners or co-venturers and (b) exclude any Debt
due from any member of the Consolidated Group or any
Investment Affiliate solely to one or more members of the
Consolidated Group.
"Total FFO" means, for any period, net earnings, as
reported by the Consolidated Group in accordance with GAAP,
excluding cumulative effects of changes in accounting
principles, extraordinary or unusual items, gains or losses
from debt restructurings and sales of properties, and
deferred income taxes, plus depreciation and amortization
and after adjustments for minority interests, and treating
unconsolidated partnerships and joint ventures on the same
basis, plus (i) distributions accrued with respect to such
period on the 9-1/4% Cumulative Quarterly Income Preferred
Securities (QUIPS) of Xxxxx Capital (Delaware statutory
business trust), plus (ii) payments made and other amounts
treated as an expense of the Company under GAAP with respect
to such period pursuant to the Xxxxxx Agreement (provided
that no item of income or expense shall be included more
than once in such calculation even if it falls within more
than one of the above categories).
"Total Interest Expense" means, for any period, the sum
of (1) all interest expense of the Consolidated Group (less
the proportionate share of interest expense of any minority
interest holders), plus (2) the allocable portion (based on
liability) of any interest expense on any obligation for
which any member of the Consolidated Group is wholly or
partially liable under repayment, interest carry or
performance guarantees or other relevant liabilities, plus
(3) the Consolidated Group's Pro Rata Share of any interest
expense on any Debt of any Investment Affiliate, whether
recourse or non-recourse (provided that no expense shall be
included more than once in such calculation even if it falls
within more than one of the foregoing categories, and
provided, further, that no interest expense on Debt due from
one member of the Consolidated Group solely to another
member of the Consolidated Group shall be included in
determining Total Interest Expense). For purposes of the
preceding sentence, interest expense will be determined in
accordance with GAAP and will exclude any amortization of
debt issuance costs.
ARTICLE THREE
ISSUANCE AS GLOBAL SECURITIES
The 6.94% Notes may be issued in whole or in part in the form of
one or more Global Securities payable to CEDE & Co. that will be deposited
with, or on behalf of, The Depository Trust Company, New York, New York, or
any other depositary or nominee thereof.
ARTICLE FOUR
MISCELLANEOUS PROVISIONS
SECTION 4.1 Ratification. The Indenture, as supplemented and
amended by this Amended and Restated First Supplemental Indenture, is in
all respects hereby adopted, ratified and confirmed.
SECTION 4.2 Counterparts. This Amended and Restated First
Supplemental Indenture may be executed in any number of counterparts, each
of which when so executed shall be deemed an original, but all such
counterparts shall together constitute but one and the same instrument.
SECTION 4.3 GOVERNING LAW. THIS AMENDED AND RESTATED FIRST
SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAW OF THE STATE OF NEW YORK, BUT WITHOUT REGARD TO PRINCIPLES OF
CONFLICT OF LAWS.
SECTION 4.4 Effective Date. The effective date of this Amended
and Restated First Supplemental Indenture shall be December 23, 2003.
IN WITNESS WHEREOF, we have set our hands (or executed this
Amended and Restated Supplemental Indenture as a deed, in the case of the
Company) as of the date first written above.
Executed as a deed by,
THE XXXXX COMPANY,
as Company
By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President
X.X. XXXXXX TRUST
COMPANY, NATIONAL ASSOCIATION
as Trustee
By: /s/ Xxxxxxx Xxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
