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EXHIBIT 4.1
XXXXX XXXXXXXXX GROUP, L.P.
ISSUER
AND
SIMON PROPERTY GROUP, L.P.
GUARANTOR
TO
THE CHASE MANHATTAN BANK
TRUSTEE
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FOURTH SUPPLEMENTAL INDENTURE
DATED AS OF JULY 22, 1997
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$100,000,000 6 3/4% NOTES DUE JULY 15, 2004
$150,000,000 7% NOTES DUE JULY 15, 2009
SUPPLEMENT TO INDENTURE,
DATED AS OF NOVEMBER 26, 1996,
AMONG
XXXXX XXXXXXXXX GROUP, X.X.
XXXXX PROPERTY GROUP, L.P.
AND
THE CHASE MANHATTAN BANK,
AS TRUSTEE
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FOURTH SUPPLEMENTAL INDENTURE, dated as of July 22, 1997, among
XXXXX XXXXXXXXX GROUP, L.P., a Delaware limited partnership (the "Issuer" or the
"Operating Partnership"), having its principal offices at National City Center,
000 Xxxx Xxxxxxxxxx Xxxxxx, Xxxxx 00 Xxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, SIMON
PROPERTY GROUP, L.P., a Delaware limited partnership (the "Guarantor") having
its principal offices at National City Center, 000 Xxxx Xxxxxxxxxx Xxxxxx, Xxxxx
00 Xxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 and THE CHASE MANHATTAN BANK, a New York
banking corporation, as trustee (the "Trustee"), having its Corporate Trust
Office at 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
RECITALS
WHEREAS, the Issuer executed and delivered its Indenture (the
"Original Indenture"), dated as of November 26, 1996, to the Trustee to issue
from time to time for its lawful purposes debt securities evidencing its
unsecured and unsubordinated indebtedness issued under the Original Indenture;
WHEREAS, the Guarantor executed and delivered the Original Indenture
to the Trustee to guarantee the due and punctual payment of principal of,
premium, if any, interest on, and any other amounts with respect to, each series
of debt securities evidencing the unsecured and unsubordinated indebtedness of
the Issuer, issued under the Original Indenture, when and as the same shall
become due and payable, whether on an interest payment date, a maturity date, on
redemption, by declaration of acceleration or otherwise;
WHEREAS, the Original Indenture provides that by means of a
supplemental indenture, the Issuer may create one or more series of its debt
securities, which shall be guaranteed by the Guarantor, and establish the form
and terms and conditions thereof;
WHEREAS, the Issuer intends by this Fourth Supplemental Indenture
(i) to create a series of debt securities, in an aggregate principal amount of
$100,000,000 entitled "Xxxxx XxXxxxxxx Group, L.P. 6 3/4% Notes due July 15,
2004 (the "2004 Notes"); (ii) to create a series of debt securities, in an
aggregate principal amount of $150,000,000 entitled "Xxxxx XxXxxxxxx Group, L.P.
7% Notes due July 15, 2009 (the "2009 Notes," and together with the 2004 Notes,
the "Notes") and (iii) to establish the form and the terms and conditions of
such Notes;
WHEREAS, the Guarantor intends by this Fourth Supplemental Indenture
to guarantee the due and punctual payment of principal of, premium, if any,
interest on, and any other amounts with respect to, the Notes, when and as the
same shall become due and payable, whether on an interest payment date, a
maturity date, on redemption, by declaration of acceleration or otherwise (the
"Guarantee");
WHEREAS, the Board of Directors of SD Property Group, Inc., the
managing general partner of the Issuer, has approved the creation of the Notes
and the forms, terms and conditions thereof;
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WHEREAS, the Board of Directors of Xxxxx XxXxxxxxx Group, Inc., the
sole general partner of the Guarantor, has approved the creation of the
Guarantee and the forms, terms and conditions thereof; and
WHEREAS, all actions required to be taken under the Original
Indenture with respect to this Fourth Supplemental Indenture have been taken.
NOW, THEREFORE IT IS AGREED:
ARTICLE ONE
DEFINITIONS, CREATION, FORMS AND TERMS AND
CONDITIONS OF THE NOTES
SECTION 1.01 DEFINITIONS. Capitalized terms used in this Fourth
Supplemental Indenture and not otherwise defined shall have the meanings
ascribed to them in the Original Indenture. Certain terms, used principally in
Article Two of this Fourth Supplemental Indenture, are defined in that Article.
In addition, the following terms shall have the following meanings to be equally
applicable to both the singular and the plural forms of the terms defined:
"GLOBAL NOTE" means a single fully-registered global note in
book-entry form, without Coupons, substantially in the form of Exhibit A or
Exhibit B attached hereto.
"INDENTURE" means the Original Indenture as supplemented by this
Fourth Supplemental Indenture.
"MAKE-WHOLE AMOUNT" means, in connection with any optional
redemption or accelerated payment of any Notes, the excess, if any, of (i) the
aggregate present value, as of the date of such redemption or accelerated
payment of each Dollar of principal being redeemed or paid and the amount of
interest (exclusive of interest accrued to the date of redemption or accelerated
payment) that would have been payable in respect of each such Dollar if such
redemption or accelerated payment had not been made, determined by discounting,
on a semi-annual basis, such principal and interest at the Reinvestment Rate
(determined on the third Business Day preceding the date notice of such
redemption is given or declaration of acceleration is made) from the respective
dates on which such principal and interest would have been payable if such
redemption or accelerated payment had not been made, to the date of redemption
or accelerated payment, over (ii) the aggregate principal amount of the Notes
being redeemed or accelerated.
"NOTES" means the 2004 Notes together with the 2009 Notes.
"2004 NOTES" means the Issuer's 6 3/4% Notes due July 15, 2004.
"2009 NOTES" means the Issuer's 7% Notes due July 15, 2009.
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"REINVESTMENT RATE" means the yield on treasury securities at a
constant maturity corresponding to the remaining life (as of the date of
redemption and rounded to the nearest month) to Stated Maturity of the principal
being redeemed (the "Treasury Yield"), plus .25%. For purposes hereof, the
Treasury Yield shall be equal to the arithmetic mean of the yields published in
the Statistical Release under the heading "Week Ending" for "U.S. Government
Securities -- Treasury Constant Maturities" with a maturity equal to such
remaining life; provided, that if no published maturity exactly corresponds to
such remaining life, then the Treasury Yield shall be interpolated or
extrapolated on a straight-line basis from the arithmetic means of the yields
for the next shortest and next longest published maturities, rounding each of
such relevant periods to the nearest month. For purposes of calculating the
Reinvestment Rate, the most recent Statistical Release published prior to the
date of determination of the Make-Whole Amount shall be used. If the format or
content of the Statistical Release changes in a manner that precludes
determination of the Treasury Yield in the above manner, then the Treasury Yield
shall be determined in the manner that most closely approximates the above
manner, as reasonably determined by the Issuer.
"STATISTICAL RELEASE" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by the
Federal Reserve System and which reports yields on actively traded United States
government securities adjusted to constant maturities, or, if such statistical
release is not published at the time of any determination under the Indenture,
then such other reasonably comparable index which shall be designated by the
Issuer.
SECTION 1.02 CREATION OF THE NOTES. In accordance with Section 301
of the Original Indenture, the Issuer hereby creates each of the 2004 Notes and
the 2009 Notes as a separate series of its securities issued pursuant to the
Indenture. The 2004 Notes shall be issued in an aggregate principal amount of
$100,000,000, and the 2009 Notes shall be issued in an aggregate principal
amount of $150,000,000.
SECTION 1.03 FORM OF THE NOTES. Each series of the Notes will be
issued in the form of a Global Note which will be deposited with, or on behalf
of, DTC and registered in the name of "Cede & Co" as the nominee of DTC. The
2004 Notes shall be substantially in the form of Exhibit A attached hereto and
the 2009 Notes shall be substantially in the form of Exhibit B attached hereto.
So long as DTC, or its nominee, is the registered owner of a Global Note, DTC or
its nominee, as the case may be, will be considered the sole owner or Holder of
the Notes represented by such Global Note for all purposes under the Indenture.
Ownership of beneficial interests in such Global Notes will be shown on, and
transfers thereof will be effected only through, records maintained by DTC (with
respect to beneficial interests of participants) or by participants or Persons
that hold interests through participants (with respect to beneficial interests
of beneficial owners).
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SECTION 1.04 TERMS AND CONDITIONS OF THE 2004 NOTES. The 2004 Notes
shall be governed by all the terms and conditions of the Original Indenture, as
supplemented by this Fourth Supplemental Indenture, and in particular, the
following provisions shall be terms of the Notes:
(a) Title and Aggregate Principal Amount. The title of the 2004
Notes shall be as specified in the Recitals; and the aggregate principal
amount of the 2004 Notes shall be as specified in Section 1.02 of this
Fourth Supplemental Indenture, except as permitted by Section 306 of the
Original Indenture.
(b) Stated Maturity. The 2004 Notes shall mature, and the unpaid
principal thereon shall be payable, on July 15, 2004.
(c) Interest. The rate per annum at which interest shall be payable
on the 2004 Notes shall be 6 3/4%, and such interest shall accrue
beginning July 22, 1997. Interest on the 2004 Notes shall be payable
semi-annually in arrears on each July 15 and January 15, commencing
January 15, 1998 (each a "2004 Interest Payment Date"), and on the Stated
Maturity as specified in Section 1.04(b) of this Fourth Supplemental
Indenture, to the Persons (the "2004 Holders") in whose names the
applicable 2004 Notes are registered in the Security Register applicable
to the 2004 Notes at the close of business 15 calendar days prior to such
payment date regardless of whether such day is a Business Day (each, a
"2004 Regular Record Date"). Interest on the 2004 Notes will be computed
on the basis of a 360-day year of twelve 30-day months.
(d) Sinking Fund, Redemption or Repayment. No sinking fund shall be
provided for the 2004 Notes and the 2004 Notes shall not be repayable at
the option of the Holders thereof prior to Stated Maturity. The 2004 Notes
may be redeemed at any time at the option of the Issuer, in whole or from
time to time in part, at a redemption price equal to the sum of (i) the
principal amount of the 2004 Notes being redeemed plus accrued interest
thereon to the redemption date and (ii) the Make-Whole Amount, if any,
with respect to such 2004 Notes (the "2004 Redemption Price"), all in
accordance with the provisions of Article Eleven of the Original
Indenture.
If notice of redemption has been given as provided in the Original
Indenture and funds for the redemption of any 2004 Notes called for
redemption shall have been made available on the Redemption Date referred
to in such notice, such 2004 Notes will cease to bear interest on the
Redemption Date and the only right of the Holders of the 2004 Notes from
and after the Redemption Date will be to receive payment of the 2004
Redemption Price upon surrender of such 2004 Notes in accordance with such
notice.
(e) Registration and Form. The 2004 Notes shall be issuable as
Registered Securities in permanent global form, and the depositary with
respect to the 2004
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Notes shall initially be DTC. Principal and interest payments on interests
represented by a Global Note will be made to DTC or its nominee, as the
case may be, as the registered Holder of such Global Note. All payments of
principal and interest in respect of the 2004 Notes will be made by the
Issuer in immediately available funds.
(f) Defeasance and Covenant Defeasance. The provisions for
defeasance in Section 1402 of the Original Indenture, and the provisions
for covenant defeasance (which provisions shall apply, without limitation,
to the covenants set forth in Article Two of this Fourth Supplemental
Indenture) in Section 1403 of the Original Indenture, shall be applicable
to the 2004 Notes.
(g) Make-Whole Amount Payable Upon Acceleration. Upon any
acceleration of the Stated Maturity of the 2004 Notes in accordance with
Section 502 of the Original Indenture, the Make-Whole Amount on the 2004
Notes shall become immediately due and payable, subject to the terms and
conditions of the Indenture.
(h) Guarantee. The provisions of Article Seventeen of the Original
Indenture shall be applicable to the 2004 Notes.
SECTION 1.05 TERMS AND CONDITIONS OF THE 2009 NOTES. The 2009 Notes
shall be governed by all the terms and conditions of the Original Indenture, as
supplemented by this Fourth Supplemental Indenture, and in particular, the
following provisions shall be terms of the Notes:
(a) Title and Aggregate Principal Amount. The title of the 2009
Notes shall be as specified in the Recitals; and the aggregate principal
amount of the 2009 Notes shall be as specified in Section 1.02 of this
Fourth Supplemental Indenture, except as permitted by Section 306 of the
Original Indenture.
(b) Stated Maturity. The 2009 Notes shall mature, and the unpaid
principal thereon shall be payable, on July 15, 2009.
(c) Interest. The rate per annum at which interest shall be payable
on the 2009 Notes shall be 7%, and such interest shall accrue beginning
July 22, 1997. Interest on the 2009 Notes shall be payable semi-annually
in arrears on each July 15 and January 15, commencing January 15, 1998
(each a "2009 Interest Payment Date"), and on the Stated Maturity as
specified in Section 1.05(b) of this Fourth Supplemental Indenture, to the
Persons (the "2009 Holders" and together with the 2004 Holders, the
"Holders") in whose names the applicable 2009 Notes are registered in the
Security Register applicable to the 2009 Notes at the close of business 15
calendar days prior to such payment date regardless of whether such day is
a Business Day (each, a "2009 Regular Record Date"). Interest on the 2009
Notes will be computed on the basis of a 360-day year of twelve 30-day
months.
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(d) Sinking Fund, Redemption or Repayment. No sinking fund shall be
provided for the 2009 Notes and the 2009 Notes shall not be repayable at
the option of the Holders thereof prior to Stated Maturity. The 2009 Notes
may be redeemed at any time at the option of the Issuer, in whole or from
time to time in part, at a redemption price equal to the sum of (i) the
principal amount of the 2009 Notes being redeemed plus accrued interest
thereon to the redemption date and (ii) the Make-Whole Amount, if any,
with respect to such 2009 Notes (the "2009 Redemption Price"), all in
accordance with the provisions of Article Eleven of the Original
Indenture.
If notice of redemption has been given as provided in the Original
Indenture and funds for the redemption of any 2009 Notes called for
redemption shall have been made available on the Redemption Date referred
to in such notice, such 2009 Notes will cease to bear interest on the
Redemption Date and the only right of the Holders of the 2009 Notes from
and after the Redemption Date will be to receive payment of the 2009
Redemption Price upon surrender of such 2009 Notes in accordance with such
notice.
(e) Registration and Form. The 2009 Notes shall be issuable as
Registered Securities in permanent global form, and the depositary with
respect to the 2009 Notes shall initially be DTC. Principal and interest
payments on interests represented by a Global Note will be made to DTC or
its nominee, as the case may be, as the registered Holder of such Global
Note. All payments of principal and interest in respect of the 2009 Notes
will be made by the Issuer in immediately available funds.
(f) Defeasance and Covenant Defeasance. The provisions for
defeasance in Section 1402 of the Original Indenture, and the provisions
for covenant defeasance (which provisions shall apply, without limitation,
to the covenants set forth in Article Two of this Fourth Supplemental
Indenture) in Section 1403 of the Original Indenture, shall be applicable
to the 2009 Notes.
(g) Make-Whole Amount Payable Upon Acceleration. Upon any
acceleration of the Stated Maturity of the 2009 Notes in accordance with
Section 502 of the Original Indenture, the Make-Whole Amount on the 2009
Notes shall become immediately due and payable, subject to the terms and
conditions of the Indenture.
(h) Guarantee. The provisions of Article Seventeen of the Original
Indenture shall be applicable to the 2009 Notes.
ARTICLE TWO
COVENANTS FOR BENEFIT OF HOLDERS OF NOTES
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SECTION 2.01 COVENANTS FOR BENEFIT OF HOLDERS OF NOTES. The
Operating Partnership covenants and agrees, for the benefit of the Holders of
the Notes, as follows:
(a) Limitations on Incurrence of Debt. The Operating Partnership will not,
and will not permit any Subsidiary to, incur any Debt (as defined below), other
than intercompany debt (representing Debt to which the only parties are the
Company (as defined below), the Operating Partnership and any of their
Subsidiaries (but only so long as such Debt is held solely by any of the
Company, the Operating Partnership and any Subsidiary) that is subordinate in
right of payment to the Notes), if, immediately after giving effect to the
incurrence of such additional Debt, the aggregate principal amount of all
outstanding Debt would be greater than 60% of the sum of (i) the Operating
Partnership's Adjusted Total Assets (as defined below) as of the end of the
fiscal quarter prior to the incurrence of such additional Debt and (ii) any
increase in Adjusted Total Assets from the end of such quarter including,
without limitation, any pro forma increase from the application of the proceeds
of such additional Debt.
In addition to the foregoing limitation on the incurrence of Debt,
the Operating Partnership will not, and will not permit any Subsidiary to, incur
any Debt secured by any mortgage, lien, pledge, encumbrance or security interest
of any kind upon any of the property of the Operating Partnership or any
Subsidiary ("Secured Debt"), whether owned at the date of the Indenture or
thereafter acquired, if, immediately after giving effect to the incurrence of
such additional Secured Debt, the aggregate principal amount of all outstanding
Secured Debt is greater than 55% of the sum of (i) the Operating Partnership's
Adjusted Total Assets as of the end of the fiscal quarter prior to the
incurrence of such additional Secured Debt and (ii) any increase in Adjusted
Total Assets from the end of such quarter including, without limitation, any pro
forma increase from the application of the proceeds of such additional Secured
Debt.
In addition to the foregoing limitations on the incurrence of Debt,
the Operating Partnership will not, and will not permit any Subsidiary to, incur
any Debt if the ratio of Annualized EBITDA After Minority Interest to Interest
Expense (in each case as defined below) for the period consisting of the four
consecutive fiscal quarters most recently ended prior to the date on which such
additional Debt is to be incurred shall have been less than 1.75 to 1 on a pro
forma basis after giving effect to the incurrence of such Debt and to the
application of the proceeds therefrom, and calculated on the assumption that (i)
such Debt and any other Debt incurred since the first day of such four-quarter
period had been incurred, and the proceeds therefrom had been applied (to
whatever purposes such proceeds had been applied as of the date of calculation
of such ratio), at the beginning of such period, (ii) any other Debt that has
been repaid or retired 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 Debt under any revolving credit facility shall be
computed based upon the average daily balance of such Debt during such period),
(iii) any income earned as a result of any assets having been placed in service
since the end of such four-quarter period had been earned, on an annualized
basis, during such period, and (iv) in the case of any acquisition or
disposition by the Operating Partnership, any Subsidiary or any unconsolidated
joint venture in which the Operating Partnership or any Subsidiary owns an
interest, of any assets since the first day of such four-quarter period,
including, without limitation, by merger, stock purchase or sale, or asset
purchase or sale, such acquisition or disposition and
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any related repayment of Debt had occurred as of the first day of such period
with the appropriate adjustments with respect to such acquisition or disposition
being included in such pro forma calculation.
For purposes of the foregoing provisions regarding the limitation on
the incurrence of Debt, Debt shall be deemed to be "incurred" by the Operating
Partnership, its Subsidiaries and by any unconsolidated joint venture, whenever
the Operating Partnership, any Subsidiary, or any unconsolidated joint venture,
as the case may be, shall create, assume, guarantee or otherwise become liable
in respect thereof.
(b) Maintenance of Unencumbered Assets. The Operating Partnership is
required to maintain Unencumbered Assets (as defined below) of not less than
150% of the aggregate outstanding principal amount of the Unsecured Debt (as
defined below) of the Operating Partnership.
SECTION 2.02 Definitions. As used herein:
"Adjusted Total Assets" as of any date means the sum of (i) the
amount determined by multiplying the sum of the shares of common stock of the
Company (as defined below) issued in the initial public offering of the Company
(the "IPO") and the units of the Operating Partnership not held by the Company
outstanding on the date of the IPO, by $22.25 (the "IPO Price"), (ii) the
principal amount of the outstanding consolidated debt of the Company on the date
of the IPO, less any portion applicable to minority interests, (iii) the
Operating Partnership's allocable portion, based on its ownership interest, of
outstanding indebtedness of unconsolidated joint ventures on the date of the
IPO, (iv) the purchase price or cost of any real estate assets acquired
(including the value, at the time of such acquisition, of any units of the
Operating Partnership or shares of common stock of the Company issued in
connection therewith) or developed after the IPO by the Operating Partnership or
any Subsidiary, less any portion attributable to minority interests, plus the
Operating Partnership's allocable portion, based on its ownership interest, of
the purchase price or cost of any real estate assets acquired or developed after
the IPO by any unconsolidated joint venture, (v) the value of the Merger
compiled as the sum of (a) the purchase price including all related closing
costs and (b) the value of all outstanding indebtedness less any portion
attributable to minority interests, including the Operating Partnership's
allocable share, based on its ownership interest, of outstanding indebtedness of
unconsolidated joint ventures at the Merger date, and (vi) working capital of
the Operating Partnership; subject, however, to reduction by the amount of the
proceeds of any real estate assets disposed of after the IPO by the Operating
Partnership or any Subsidiary, less any portion applicable to minority
interests, and by the Operating Partnership's allocable portion, based on its
ownership interest, of the proceeds of any real estate assets disposed of after
the IPO by unconsolidated joint ventures.
"Annualized EBITDA" means earnings before interest, taxes,
depreciation and amortization for all properties with other adjustments as are
necessary to exclude the effect of items classified as extraordinary items in
accordance with generally accepted accounting principles, adjusted to reflect
the assumption that (i) any income earned as a result of any assets having been
placed in service since the end of such period had been earned, on an annualized
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basis, during such period, and (ii) in the case of any acquisition or
disposition by the Operating Partnership, any Subsidiary or any unconsolidated
joint venture in which the Operating Partnership or any Subsidiary owns an
interest, of any assets since the first day of such period, such acquisition or
disposition and any related repayment of Debt had occurred as of the first day
of such period with the appropriate adjustments with respect to such acquisition
or disposition.
"Annualized EBITDA After Minority Interest" means Annualized EBITDA
after distributions to third party joint venture partners.
"Company" means Xxxxx XxXxxxxxx Group, Inc., a Maryland corporation
and a general partner of the Operating Partnership and the sole general partner
of the Guarantor.
"Debt" means any indebtedness of the Operating Partnership and its
Subsidiaries on a consolidated basis, less any portion attributable to minority
interests, plus the Operating Partnership's allocable portion, based on its
ownership interest, of indebtedness of unconsolidated joint ventures, in respect
of (i) borrowed money evidenced by bonds, notes, debentures or similar
instruments, as determined in accordance with generally accepted accounting
principles, (ii) indebtedness secured by any mortgage, pledge, lien, charge,
encumbrance or any security interest existing on property owned by the Operating
Partnership or any Subsidiary directly, or indirectly through unconsolidated
joint ventures, as determined in accordance with generally accepted accounting
principles, (iii) 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, except
any such balance that constitutes an accrued expense or trade payable and (iv)
any lease of property by the Operating Partnership or any Subsidiary as lessee
which is reflected in the Operating Partnership's consolidated balance sheet as
a capitalized lease or any lease of property by an unconsolidated joint venture
as lessee which is reflected in such joint venture's balance sheet as a
capitalized lease, in each case, in accordance with generally accepted
accounting principles; provided, that Debt also includes, to the extent not
otherwise included, any obligation by the Operating Partnership or any
Subsidiary to be liable for, or to pay, as obligor, guarantor or otherwise,
items of indebtedness of another Person (other than the Operating Partnership or
any Subsidiary) described in clauses (i) through (iv) above (or, in the case of
any such obligation made jointly with another Person, the Operating
Partnership's or Subsidiary's allocable portion of such obligation based on its
ownership interest in the related real estate assets).
"Fixed Charges and Preferred Unit Distributions" consist of interest
costs, whether expensed or capitalized, the interest component of rental expense
and amortization of debt issuance costs, including the Operating Partnership's
pro rata share based on its ownership interest of joint venture interest costs,
whether expensed or capitalized, and the interest components of rental expense
and amortization of debt issuance costs, plus any distributions on outstanding
preferred units.
"Interest Expense" includes the Operating Partnership's pro rata
share of joint venture interest expense and is reduced by amortization of debt
issuance costs.
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"Unencumbered Annualized EBITDA After Minority Interest" means
Annualized EBITDA After Minority Interest less any portion thereof attributable
to assets serving as collateral for Secured Debt (as defined above).
"Unencumbered Assets" as of any date shall be equal to Adjusted
Total Assets as of such date multiplied by a fraction, the numerator of which is
Unencumbered Annualized EBITDA After Minority Interest and the denominator of
which is Annualized EBITDA After Minority Interest.
"Unsecured Debt" means Debt which is not secured by any mortgage,
lien, pledge, encumbrance or security interest of any kind.
ARTICLE THREE
TRUSTEE
SECTION 3.01 TRUSTEE. The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this
Fourth Supplemental Indenture or the due execution thereof by the Issuer or the
Guarantor. The recitals of fact contained herein shall be taken as the
statements solely of the Issuer and the Guarantor, and the Trustee assumes no
responsibility for the correctness thereof.
ARTICLE FOUR
MISCELLANEOUS PROVISIONS
SECTION 4.01 RATIFICATION OF ORIGINAL INDENTURE. This Fourth
Supplemental Indenture is executed and shall be construed as an indenture
supplemental to the Original Indenture, and as supplemented and modified hereby,
the Original Indenture is in all respects ratified and confirmed, and the
Original Indenture and this Fourth Supplemental Indenture shall be read, taken
and construed as one and the same instrument.
SECTION 4.02 EFFECT OF HEADINGS. The Article and Section headings
herein are for convenience only and shall not affect the construction hereof.
SECTION 4.03 SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Fourth Supplemental Indenture by the Issuer and Guarantor shall bind their
successors and assigns, whether so expressed or not.
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SECTION 4.04 SEPARABILITY CLAUSE. In case any one or more of the
provisions contained in this Supplemental Indenture shall for any reason be held
to be invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 4.05 GOVERNING LAW. This Fourth Supplemental Indenture shall
be governed by and construed in accordance with the laws of the State of New
York. This Fourth Supplemental Indenture is subject to the provisions of the
Trust Indenture Act that are required to be part of this Fourth Supplemental
Indenture and shall, to the extent applicable, be governed by such provisions.
SECTION 4.06 COUNTERPARTS. This Fourth Supplemental Indenture may be
executed in any number of counterparts, and each of such counterparts shall for
all purposes be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument.
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* * * *
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the date first above written.
XXXXX XXXXXXXXX GROUP, L.P.
By: SD Property Group, Inc.,
its managing general partner
By:________________________________
Name:
Title:
Attest:
________________________________
Name:
Title:
SIMON PROPERTY GROUP, L.P.
By: Xxxxx XxXxxxxxx Group, Inc.,
its sole general partner
By:________________________________
Name:
Title:
Attest:
________________________________
Name:
Title:
THE CHASE MANHATTAN BANK
as Trustee
By:________________________________
Name:
Title:
Attest:
________________________________
Name:
Title:
