Exhibit 4.9
PRICE DEVELOPMENT COMPANY,
LIMITED PARTNERSHIP
AND
THE CHASE MANHATTAN BANK
Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of March 11, 1998
Supplementing the Indenture
Dated as of March 11, 1998
$100,000,000 7.29% Senior Notes due 2008
FIRST SUPPLEMENTAL INDENTURE, dated as of the 11th day of
March,
1998, between PRICE DEVELOPMENT COMPANY, LIMITED PARTNERSHIP, a
limited
partnership organized and existing under the laws of the State of
Maryland
(the "Issuer"), having its principal office at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇-▇▇▇,
▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ and The Chase Manhattan Bank, a banking
corporation organized
under the laws of the State of New York (the "Trustee"), having its
principal
corporate trust office at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇;
WHEREAS, the Issuer has heretofore executed and delivered
to the
Trustee an Indenture dated as of March 11, 1998 (the "Original
Indenture" and,
together with this First Supplemental Indenture, the "Indenture")
providing
for the issuance by the Issuer from time to time of its unsecured
debt
securities to be issued in one or more series (in the Original
Indenture and
herein called the "Securities"); and
WHEREAS, the Issuer, in the exercise of the power and
authority
conferred upon and reserved to it under the provisions of the
Original
Indenture, has duly determined to make, execute and deliver to the
Trustee
this First Supplemental Indenture to the Original Indenture in
order to
establish the form and terms of, and to provide for the creation
and issuance
of a series of Securities designated as the $100,000,000 7.29%
Senior Notes
due 2008 under the Original Indenture; and
WHEREAS, all things necessary to make the Securities,
when executed
by the Issuer and authenticated and delivered by the Trustee or any
Authenticating Agent and issued upon the terms and subject to the
conditions
hereinafter and in the Indenture set forth against payment
therefor, the
valid, binding and legal obligations of the Issuer and to make this
First
Supplemental Indenture a valid, binding and legal agreement of the
Issuer,
have been done;
NOW, THEREFORE, for and in consideration of the premises
and of the
covenants contained in the Original Indenture and in this First
Supplemental
Indenture and for other good and valuable consideration the receipt
and
sufficiency of which are hereby acknowledged, it is mutually
covenanted and
agreed as follows:
ARTICLE ONE
DEFINITIONS AND OTHER
PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions. Each capitalized term that
is used
herein and is defined in the Original Indenture shall have the
meaning
specified in the Original Indenture unless such term is otherwise
defined
herein.
"Adjusted Total Assets" as of any date means the sum of
(i) $296.1
million, which represents the amount determined by multiplying the
sum of the
shares of Common Stock of the General Partner and the OP Units of
the Issuer
not held by the General Partner issued in connection with the
General
Partner's initial public offering on January 21, 1994 ("IPO") by
the IPO price
($17.50), (ii) $106.7 million, which represents the principal
amount of
outstanding Debt of the Issuer on the date of the IPO and (iii) the
purchase
price or cost of any real estate assets or mortgages receivable
acquired
(including the value of any OP Units issued in connection
therewith) or
developed or capital improvements incurred after the IPO and the
amount of any
securities offering proceeds and other proceeds of Debt received
after the IPO
(to the extent such proceeds were not used to acquire real estate
assets or
mortgages receivable or used to reduce Debt), adjusted in the case
of (i),
(ii) and (iii) for the proceeds of any real estate assets disposed
of by the
Issuer.
"Annual Debt Service Charge" means the amount which was
payable in
the four consecutive fiscal quarters most recently ended for
interest on Debt.
"Commission" means the United States Securities and
Exchange
Commission.
"Consolidated Income Available for Debt Service" for any
period
means Consolidated Net Income plus amounts which have been deducted
for (i)
Consolidated Interest Expense, (ii) provision for taxes of the
Issuer and its
Subsidiaries based on income, (iii) amortization of Debt discount,
(iv)
provisions for gains and losses on properties, (v) depreciation and
amortization, (vi) the effect of any non-cash charge resulting from
a change
in accounting principles, (vii) charges for early extinguishment of
Debt, less
amounts which have been added in determining Consolidated Net
Income during
such period, and (viii) amortization of deferred charges.
2
"Consolidated Interest Expense" means, for any period,
and without
duplication, all interest (including the interest component of
rentals on
capitalized leases, letter of credit fees, commitment fees and
other like
financial charges) and all amortization of Debt discount on all
Debt
(including, without limitation, payment-in-kind, zero coupon and
other like
securities), but excluding legal fees, title insurance charges,
other
out-of-pocket fees and expenses incurred in connection with the
issuance of
Debt and the amortization of any such Debt issuance costs that are
capitalized, all determined in accordance with GAAP.
"Consolidated Net Income" for any period means the amount
of
consolidated net income (or loss) of the Issuer and its
Subsidiaries for such
period determined on a consolidated basis in accordance with GAAP.
"Currently Adjusted Total Assets" means Adjusted Total
Assets as of
the end of the fiscal quarter covered in the Issuer's Annual Report
on Form
10-K or Quarterly Report on Form 10-Q, as the case may be, most
recently filed
with the Commission (or, if such filing is not required under the
Exchange
Act, with the Trustee) prior to the incurrence of such additional
Debt and the
increase in Adjusted Total Assets from the end of such quarter,
including,
without limitation, any increase in Adjusted Total Assets caused by
the
incurrence of such additional Debt.
"Debt" means any indebtedness of the Issuer or any
Subsidiary
whether or not contingent, in respect of (i) borrowed money or
evidenced by
bonds, notes, debentures or similar interest instruments, (ii)
indebtedness
secured by any mortgage, pledge, lien, charge, encumbrance or any
security
interest existing on property owned by the Issuer or any
Subsidiary, (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 except any such
balance that
constitutes an accrued expense or trade payable or (iv) any lease
of property
by the Issuer or any of its Subsidiaries as lessee which is
reflected in the
Issuer's consolidated balance sheet as a capitalized lease in
accordance with
GAAP in the case of items of indebtedness incurred under (i)
through (iii)
above to the extent that any such items (other than letters of
credit) would
appear as a liability on the Issuer's Consolidated Balance Sheet in
accordance
with GAAP, and also includes, to the extent not otherwise included,
any
obligation of the Issuer 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
Issuer or any Subsidiary).
"Exchange Act" means the Securities Exchange Act of 1934,
as
amended.
"Intercompany Debt" means indebtedness owed by the
General Partner,
the Issuer or any Subsidiary solely to the General Partner, the
Issuer or any
Subsidiary.
3
"IPO" shall mean the January 21, 1994 initial public
offering of the
General Partner.
"Issuer" shall mean Price Development Company, Limited
Partnership,
a Maryland limited partnership.
"Make-Whole Amount" has the meaning specified in Section
204.
"Notes" have the meaning specified in Section 201.
"OP Units" means units of limited partner interest in the
Issuer.
"Redemption Price" has the meaning specified in Section
204.
"Reinvestment Rate" has the meaning specified in Section
204.
"Secured Debt" means Debt secured by any mortgage, lien,
charge,
encumbrance, trust deed, deed of trust, deed to secure Debt,
security
agreement, pledge, conditional sale or other title retention
agreement,
capitalized lease, or other security interest or agreement granting
or
conveying security title to or a security interest in real property
or other
tangible assets.
"Senior Executive Group" means, collectively, those
individuals
holding the offices of Chairman, President, Chief Executive
Officer, Chief
Operating Officer or any Vice President of the General Partner.
"Stated Maturity Date" shall mean March 11, 2008.
"Statistical Release" has the meaning specified in
Section 204.
"Subsidiary" means (i) any corporation, partnership,
joint venture,
limited liability company or other entity the majority of the
shares of the
non-voting capital stock or other equivalent ownership interests of
which
(except directors' qualifying shares) are at the time directly or
indirectly
owned by the Issuer, and the majority of the shares of the voting
capital
stock or other equivalent ownership interests of which (except
directors'
qualifying shares) are at the time directly or indirectly owned by
the Issuer,
the General Partner, any other Subsidiary and/or more individuals
of the
Senior Executive Group (or, in the event of death or disability of
any such
individuals, his/her respective legal representative(s)), or such
individual's
successors in office as an officer of the General Partner and (ii)
any other
entity (other than the General Partner) the accounts of which are
consolidated
with the accounts of the Issuer.
4
"Trustee" means The Chase Manhattan Bank.
"Undepreciated Real Estate Assets" as of any date means
the amount
of real estate assets of the Issuer and its Subsidiaries on such
date, before
depreciation and amortization determined on a consolidated basis in
accordance
with GAAP.
"Unencumbered Currently Adjusted Total Assets" means
Currently
Adjusted Total Assets minus the value of any properties of the
Issuer and its
Subsidiaries that are encumbered by any mortgage, charge, pledge,
lien,
security interest or other encumbrance of any kind, including the
value of any
capital stock of any Subsidiary that is so encumbered. For
purposes of this
definition, the value of each of the 38 properties owned by the
Issuer at the
time of the IPO shall be determined by reference to each such
property's
contribution to net operating income of the Issuer at the time of
the IPO and
the value of each property acquired since the IPO shall be equal to
the
purchase price or cost of each such acquired property.
"Unsecured Debt" means Debt that is not Secured Debt.
Section 102. Section References. Each reference to
a particular
section set forth in this First Supplemental Indenture shall,
unless the
context otherwise requires, refer to this First Supplemental
Indenture.
ARTICLE TWO
TITLE AND TERMS OF THE NOTES
Section 201. Title of the Notes. Pursuant to Section
901 of the
Original Indenture, this First Supplemental Indenture hereby
establishes a
series of Securities of the Issuer respectively designated as the
$100,000,000
7.29% Senior Notes due 2008 (the "Notes"). For purposes of the
Original
Indenture, the Notes shall constitute a separate series of
Securities.
Section 202. Amount and Denominations; DTC. The
aggregate
principal amount of the Notes that may be issued under this First
Supplemental
Indenture is limited to $100,000,000.
The Notes shall be issuable only in a single fully
registered global
note in book-entry form, without coupons, and shall initially be
registered in
the name of The Depository Trust Company ("DTC"), or its nominee
who is hereby
designated as "Holder" under the Original Indenture. The
authorized
denominations of the Notes shall be $1,000 and integral multiples
thereof.
5
Section 203. Principal and Interest.
The Notes will bear interest at a rate of 7.29% per
annum from
the date of issuance or from the immediately preceding Interest
Payment Date
(as defined below) to which interest has been paid, payable
semi-annually in
arrears on each March 11 and September 11 (each, an "Interest
Payment Date"),
commencing September 11, 1998 , and on the Stated Maturity, to the
persons
(the "Holders") in whose names the Notes are registered in the
Security
Register at the close of business on the date 15 calendar days
prior to such
Interest Payment Date (each, a "Regular Record Date") regardless of
whether
such day is a Business Day (as defined below). Interest on the
Notes will be
computed on the basis of a 360-day year of twelve 30-day months.
Installments of principal of $250 will be paid on each $1,000
principal
amount of the Notes outstanding on each March 11 (each, a
"Principal Payment
Date"), commencing on March 11, 2005. The maximum aggregate
principal payment
on each Principal Payment Date shall equal $25.0 million.
In each case, principal on the Notes will be payable to the
Holders in
whose names the Notes are registered in the Security Register at
the close of
business on the date 15 calendar days prior to such Principal
Payment Date
regardless of whether such day is a Business Day.
If any Interest Payment Date, Principal Payment Date or a
Stated
Maturity falls on a day that is not a Business Day, the required
payment shall
be made on the next Business Day as if it were made on the date
such payment
was due and no interest shall accrue on the amount so payable for
the period
from and after such Interest Payment Date, Principal Payment Date
or Stated
Maturity, as the case may be. "Business Day" means any day, other
than a
Saturday or Sunday or legal holiday, on which banking institutions
in The City
of New York are open for business.
Section 204. Optional Redemption. The Notes are
subject to
redemption at the option of the Issuer, in whole or in part at any
time, from
time to time, at a redemption price (the "Redemption Price") equal
to the sum
of (i) the principal amount of the Notes being redeemed plus
accrued and
unpaid interest to the redemption date and (ii) the Make-Whole
Amount, if any.
If notice has been given as provided in the Original
Indenture and
funds for the redemption of the Notes called for redemption shall
have been
made available on the redemption date referred to in such notice,
such Notes
shall cease to bear interest on the date fixed for such redemption
specified
in such notice and the only right of the Holders from and after the
redemption
date will be to receive payment of the Redemption Price upon
surrender of such
Notes in accordance with such notice.
6
Notice of any optional redemption of any Notes will be
given to
Holders at their addresses, as shown in the Security Register for
such Notes,
not less than 30 nor more than 60 days prior to the date fixed for
redemption. The notice of redemption will specify, among other
items, the
Redemption Price and the principal amount of the Notes held by such
Holder to
be redeemed.
If less than all the Notes are to be redeemed at the
option of the
Issuer, the Issuer will notify the Trustee at least 45 days prior
to giving
notice of redemption (or such shorter period as is satisfactory to
the
Trustee) of the aggregate principal amount of the Notes to be
redeemed and
their redemption date. The Trustee shall select, pro rata, by lot
or in such
manner as it shall deem fair and appropriate, Notes to be redeemed
in whole or
in part. Notes may be redeemed in part in the authorized
denomination of
$1,000 or in any integral multiple thereof.
As used herein:
"Make-Whole Amount" means, in connection with any optional
redemption or
accelerated payment of any Notes being so redeemed or accelerated,
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
and the
amount of any interest (exclusive of interest accrued to the date
of
redemption or accelerated payment) that would have been payable in
respect of
each such dollar if such redemption or accelerated payment had not
been made,
determined by discounting, on a semi-annual basis, such principal
and interest
at the Reinvestment Rate (determined on the third Business Day
preceding the
date such notice of redemption is given or declaration of
acceleration is
made), from the respective dates on which such principal and
interest would
have been payable if such redemption or accelerated payment had not
been made,
over (ii) the aggregate principal amount of the Notes being
redeemed or paid,
as calculated and certified by the Issuer to the Trustee in an
Officers'
Certificate.
"Reinvestment Rate" means 0.25% plus the arithmetic mean of
the yields on
treasury securities at a constant maturity for the most recent week
under the
heading "Week Ending" published in the most recent Statistical
Release under
the caption "Treasury Constant Maturities" for the maturity
(rounded to the
nearest month) corresponding to the remaining life to maturity, as
of the
payment date of the principal being redeemed or paid. If no
maturity exactly
corresponds to such maturity, yields for the two published
maturities most
closely corresponding to such maturity shall be calculated pursuant
to the
immediately preceding sentence and the Reinvestment Rate shall be
interpolated
or extrapolated from such yields on a straight-line basis, rounding
in each of
such relevant periods to the nearest month. For the purpose of
calculating
the Reinvestment Rate, the most recent Statistical Release
published prior to
the date of determination of the Make-Whole Amount shall be used.
7
"Statistical Release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly
by the
Federal Reserve System and which establishes yields on actively
traded United
States government securities adjusted to constant maturities, or,
if such
statistical release is not published at the time of any
determination under
the Indenture, then such other reasonably comparable index which
shall be
designated by the Issuer in an Officers' Certificate to the
Trustee.
Section 205. Form and Other Terms of the Notes.
Attached hereto as Exhibits A is the form of the Notes,
which form
is hereby established as the form in which the Notes shall be
executed,
authenticated and delivered in accordance with the provisions of,
and shall in
all respect be subject to, the terms, conditions and covenants of
the Original
Indenture and this First Supplemental Indenture. All of the terms
and
provisions set forth in Exhibit A are incorporated herein by
reference.
ARTICLE THREE
ADDITIONAL COVENANTS
With respect to the Notes, the following will be
additional
covenants to follow Section 1009 of the Original Indenture:
SECTION 1010. Limitations on Incurrence of Debt. The Issuer
will not,
and will not permit any Subsidiary to, incur any Debt, other than
Intercompany
Debt, if, immediately after giving effect to the incurrence of such
additional
Debt, the aggregate principal amount of all outstanding Debt of the
Issuer and
its Subsidiaries on a consolidated basis determined in accordance
with GAAP is
greater than 60% of the sum of (without duplication) (i) the
Adjusted Total
Assets of the Issuer and its Subsidiaries as of the end of the
fiscal quarter
covered in the Issuer's Annual Report on Form 10-K or Quarterly
Report on Form
10-Q, as the case may be, most recently filed with the Commission
(or, if such
filing is not required under the Exchange Act, with the Trustee)
prior to the
incurrence of such additional Debt and (ii) the increase in
Adjusted Total
Assets from the end of such quarter, including, without limitation,
any
increase in Adjusted Total Assets caused by the incurrence of such
additional
Debt (such increase together with the Adjusted Total Assets shall
be referred
to as the "Currently Adjusted Total Assets").
SECTION 1011. Limitations on Incurrence of Secured Debt. In
addition to
the foregoing limitation on the incurrence of Debt, the Issuer will
not, and
will not permit any Subsidiary 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 of the
Issuer and
its Subsidiaries on a consolidated basis determined in accordance
with GAAP is
greater than 40% of the Currently Adjusted Total Assets.
SECTION 1012. Debt Service Coverage. In addition to the
foregoing
limitation on the incurrence of Debt, the Issuer and its
Subsidiaries will
maintain a ratio of Consolidated Income Available for Debt Service
to Annual
Debt Service Charge for the four consecutive fiscal quarters most
recently
ended prior to the date on which such additional Debt is to be
incurred of not
less than 1.5 to 1, on a pro forma basis after giving effect to the
incurrence
of such Debt and to the application of the proceeds therefrom, and
calculated
on the assumption that (i) such Debt and any other Debt incurred
since the
first day of such four-quarter period and the application of the
proceeds
therefrom, including to refinance other Debt, had occurred at the
beginning of
such period, (ii) the repayment or retirement of any other Debt
since the
first day of such four-quarter period had occurred at the beginning
of such
period (except that, in making such computation under this
subsection (ii) or
subsection (i) above, the amount of Debt under any revolving credit
facility
8
shall be computed based upon the average daily balance of such Debt
during
such period) and (iii) any increase or decrease in Adjusted Total
Assets, or
any other acquisition or disposition by the Issuer or any
Subsidiary of any
asset or group of assets, since the first day of such four-quarter
period,
including, without limitation, by merger, stock purchase or sale,
or asset
purchase or sale, had occurred at the beginning of such period, in
each case
with the appropriate adjustments to net income and Debt levels with
respect to
such increase, decrease or other acquisition or disposition being
included in
such pro forma calculation. For purposes of the adjustments
referred to in
clause (iii) of the preceding sentence, any income earned (or loss
incurred)
as a result of any such increase, decrease or other acquisition or
disposition
referred to in clause (iii) for a period of less than such
four-quarter period
shall be annualized for such four-quarter period.
SECTION 1013. Maintenance of Unencumbered Currently Adjusted
Total
Assets. The Issuer shall maintain at all times Unencumbered
Currently
Adjusted Total Assets of not less than 150% of the aggregate
principal amount
of all outstanding Unsecured Debt of the Issuer and its
Subsidiaries on a
consolidated basis.
The covenants set forth in Sections 1010, 1011, 1012
and 1013 shall not restrict the Issuer from refinancing existing
Debt, provided that the outstanding principal amount of such Debt
is
not increased.
SECTION 1014. Insurance. The Issuer will, and will cause
each of its
Subsidiaries to, keep all of their respective insurable properties
insured
against loss or damage at least equal to their then fully insurable
value with
financially sound and reputable insurance companies.
SECTION 1015. Maintenance of Properties. The
Issuer will cause all of its respective properties used or useful
in
the conduct of its business or the business of any Subsidiary to be
maintained and kept in good condition, repair and working order and
supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and
improvements
thereof, all as in the judgment of the Issuer may be necessary so
that the
business carried on in connection therewith may be properly and
advantageously conducted at all times;provided, however, that the
Issuer shall not be prevented from selling or otherwise disposing
of for value its properties in the ordinary course of business.
9
ARTICLE FOUR
MISCELLANEOUS PROVISIONS
Each and every term and condition contained in the
Original
Indenture shall apply to this First Supplemental Indenture with the
same force
and effect as if the same were herein set forth in full, with such
omissions,
variations and modifications thereof as may be appropriate to make
the same
conform to this First Supplemental Indenture. As supplemented by
this First
Supplemental Indenture, the Original Indenture shall be read, taken
and
construed as one and the same instrument; provided, however, that
the rights,
duties and obligations of the Trustee in this First Supplemental
Indenture
shall be limited to those matters expressly relating to the Notes.
Nothing contained in this First Supplemental Indenture
shall or
shall be construed to confer upon any person other than a Holder of
the Notes,
the Issuer and the Trustee any right or interest to avail itself or
himself,
as the case may be, of any benefit under any provision of the
Original
Indenture or this First Supplemental Indenture. Except as amended
hereby, the
Original Indenture is in all respects ratified and confirmed and
all of the
terms thereof shall remain in full force and effect.
This First Supplemental Indenture shall be governed by,
and
construed in accordance with, the laws of the State of New York.
This First 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
instruments.
The Trustee accepts the amendment of the Original
Indenture effected
by this First Supplemental Indenture and agrees to execute the
trust created
by the Original Indenture as hereby amended, but only upon the
terms and
conditions set forth in the Original Indenture, including the terms
and
provisions defining and limiting the liabilities and
responsibilities of the
Trustee, which terms and provisions shall in like manner define and
limit its
liabilities and responsibilities in the performance of the trust
created by
the Original Indenture as hereby amended, and without limiting the
generality
of the foregoing, the Trustee shall not be responsible in any
manner
whatsoever for or with respect to any of the recitals or statements
contained
herein, all of which recitals or statements are made solely by the
Issuer or
the General Partner on behalf of the Issuer, or for or with respect
to (i) the
validity or sufficiency of this First Supplemental Indenture or any
of the
terms or provisions hereof, (ii) the proper authorization hereof by
the Issuer
or the General Partner on behalf of the Issuer by corporate action
or
otherwise, (iii) the due execution hereof by the Issuer or the
General Partner
on behalf of the Issuer or (iv) the consequences (direct or
indirect and
whether deliberate or inadvertent) of any amendment herein provided
for, and
the Trustee makes no representation with respect to such matters.
10
IN WITNESS WHEREOF, the parties hereto have caused this
First
Supplemental Indenture to be duly executed as of the day and year
first above
written.
PRICE DEVELOPMENT COMPANY,
LIMITED PARTNERSHIP
By: JP Realty, Inc., its sole
general partner
By:/s/ M. ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Name: M. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President and
Chief Financial Officer
THE CHASE MANHATTAN BANK, as Trustee
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Trust Officer
11
Exhibit
A
[Form of Face of Note]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR
REGISTERED OR
EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON
OTHER THAN THE
DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE
REGISTERED, EXCEPT
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY
SECURITY
AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER, PLEDGE
OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
ISSUER (AS
DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE,
OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
PRICE DEVELOPMENT COMPANY, LIMITED PARTNERSHIP
7.29% SENIOR NOTES DUE 2008
REGISTERED PRINCIPAL AMOUNT
NO.: 1 $100,000,000
CUSIP No.:▇▇▇▇▇▇▇▇▇
PRICE DEVELOPMENT COMPANY, LIMITED PARTNERSHIP, a limited
partnership
duly organized and existing under the laws of the State of Maryland
(hereinafter called the "Issuer"), for value received, hereby
promises to pay
to CEDE & CO. or registered assigns, upon presentation, the maximum
aggregate
principal sum of ONE HUNDRED MILLION DOLLARS ($100,000,000) in
installments of
TWENTY FIVE MILLION DOLLARS ($25,000,000) on each Principal Payment
Date,
commencing on March 11, 2005, at the office or agency of the
Issuer, and to
pay interest on the outstanding principal amount thereon from the
date of
issuance, or from and including the immediately preceding Interest
Payment
Date to which interest has been paid or duly provided for,
semi-annually in
arrears on March 11 and September 11 in each year, commencing
September 11,
1998, at the rate of 7.29% per annum, computed on the basis of a
360-day year
comprised of twelve 30-day months until the entire principal hereof
is paid or
made available for payment. Installments of principal on each
Principal
Payment Date shall be in an amount equal to $250 for each $1,000
principal
amount of Securities then outstanding.
If any Principal Payment Date or Interest Payment Date would
otherwise be
a day that is not a Business Day, such Principal Payment Date or
Interest
Payment Date will be postponed to the next succeeding Business Day.
The
principal so payable, and punctually paid or duly provided for on
any
Principal Payment Date will be paid to the Holders in whose names
this
Security (or one or more Predecessor Securities) is registered at
the close of
business on the 15th calendar day (whether or not a Business Day)
next
preceding such Principal Payment Date. The interest so payable,
and
punctually paid or duly provided for on any Interest Payment Date
will, as
provided for in the Indenture, be paid to the person in whose name
this
Security (or one or more Predecessor Securities) is registered at
the close of
business on the Regular Record Date for such interest which shall
be the 15th
calendar day (whether or not a Business Day) next preceding such
Interest
Payment Date. Any such interest not so punctually paid or duly
provided for
shall forthwith cease to be payable to the Holder on such Regular
Record Date,
and may either be paid to the Person in whose name this Security
(or one or
more Predecessor Securities) is registered at the close of business
on a
Special Record Date for the payment of such Defaulted Interest to
be fixed by
the Trustee, notice whereof shall be given to Holders of Securities
of this
series not 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 the
Securities of this series may be listed, and upon such notice as
may be
required by such exchange, all as more fully provided in the
Indenture.
Payment of the principal of, or Make-Whole Amount, if
any, and
interest on, the Securities will be made at the office or agency of
the
Trustee maintained for that purpose in the City of New York as
provided in the
Indenture in such coin or currency of the United States of America
as at the
time of payment is legal tender for payment of public and private
debts;
provided, however, that at the option of the Issuer payment of
interest may be
made by (i) check mailed to the address of the Person entitled
thereto as such
address shall appear in the Security Register or (ii) by wire
transfer of
funds to an account of the Person entitled thereto maintained
within the
United States; provided, however, that the Trustee shall have
received written
wire instructions from the Holder, by no later than the Regular
Record Date
for such Interest Payment Date. If this Security is in global
form, all such
payments will be made by wire transfer of immediately available
funds.
Securities of this series may be redeemed at any time at
the option
of the Issuer, in whole or in part, upon notice of not more than 60
nor less
than 30 days prior to the redemption date, at a Redemption Price
equal to the
sum of (i) the principal amount of the Securities being redeemed
plus accrued
and unpaid interest to the redemption date and (ii) the Make-Whole
Amount, if
any, with respect to such Securities.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF
THIS SECURITY
SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR
ALL
PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH IN THIS PLACE.
Unless the Certificate of Authentication hereon has been
executed by
or on behalf of the Trustee by manual signature, this Security
shall not be
entitled to any benefit under the Indenture or be valid or
obligatory for any
purpose.
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IN WITNESS WHEREOF, JP Realty, Inc., the sole general
partner of the
Issuer, has caused this instrument to be duly executed on behalf of
the Issuer
and its corporate seal to be affixed and attested.
PRICE DEVELOPMENT COMPANY,
LIMITED PARTNERSHIP
By: JP Realty, Inc.,
its General Partner
ATTEST:
By: ______________________
(Corporate Seal)
Dated: By:
name:
title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated
therein
referred to in the within-mentioned Indenture.
The Chase Manhattan Bank,
as Trustee
By: Dated:
Authorized Officer
[Form of Reverse of Note] 7.29% SENIOR NOTES DUE
2008
This Security is one of a duly authorized issue of
securities of the
Issuer designated as the $100,000,000 7.29% Senior Notes due 2008
(herein
called the "Securities"), issued and to be issued in one or more
series under
an Indenture, dated as of March 11, 1998, as supplemented by the
First
Supplemental Indenture, dated as of March 11, 1998, and as the same
may be
supplemented from time to time thereafter in accordance with the
terms thereof
(as so supplemented, herein called the "Indenture"), between the
Issuer and
The Chase Manhattan Bank, a banking corporation organized under the
laws of
the State of New York, as Trustee (herein called the "Trustee,"
which term
includes any successor trustee under the Indenture with respect to
the series
of which this Security is a part), to which the Indenture and all
indentures
supplemental thereto reference is hereby made for a statement of
the
respective rights, limitations of rights, duties and immunities
thereunder of
the Issuer, the Trustee and the Holders of the Securities and of
the terms
upon which the Securities are, and are to be, authenticated and
delivered.
This Security is one of the series designated on the first page
hereof,
limited in aggregate principal amount to $100,000,000.
As used herein:
"Make-Whole Amount" means, in connection with any
optional
redemption or accelerated payment of any Security being so redeemed
or
accelerated, 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 and the amount of any interest (exclusive of
interest accrued
to the date of redemption or accelerated payment) that would have
been payable
in respect of each such dollar if such redemption or accelerated
payment had
not been made, determined by discounting, on a semi-annual basis,
such
principal and interest at the Reinvestment Rate (determined on the
third
Business Day preceding the date such notice of redemption is given
or
declaration of acceleration is made), from the respective dates on
which such
principal and interest would have been payable if such redemption
or
accelerated payment had not been made, over (ii) the aggregate
principal
amount of the Securities being redeemed or paid, as calculated and
certified
by the Issuer to the Trustee in an Officers' Certificate.
"Reinvestment Rate" means 0.25% plus the arithmetic mean
of the
yields on treasury securities at a constant maturity for the most
recent week
under the heading "Week Ending" published in the most recent
Statistical
Release under the caption "Treasury Constant Maturities" for the
maturity
(rounded to the nearest month) corresponding to the remaining life
to
maturity, as of the payment date of the principal being redeemed or
paid. If
no maturity exactly corresponds to such maturity, yields for the
two published
maturities most closely corresponding to such maturity shall be
calculated
pursuant to the immediately preceding sentence and the Reinvestment
Rate shall
be interpolated or extrapolated from such yields on a straight-line
basis,
rounding in each of such relevant periods to the nearest month.
For the
purpose of calculating the Reinvestment Rate, the most recent
Statistical
Release published prior to the date of determination of the
Make-Whole Amount
shall be used.
"Statistical Release" means the statistical release
designated
"H.15(519)" or any successor publication which is published weekly
by the
Federal Reserve System and which establishes yields on actively
traded United
States government securities adjusted to constant maturities, or,
if such
statistical release is not published at the time of any
determination under
the Indenture, then such other reasonably comparable index which
shall be
designated by the Issuer in an Officers' Certificate to the
Trustee.
The covenants set forth in Article 10 of the Indenture
and Sections
1010, 1011, 1012, 1013 ,1014 and 1015 of the First Supplemental
Indenture
shall be fully applicable to this Security.
The Indenture contains provisions for defeasance at any
time of (a)
the entire indebtedness of the Issuer on this Security and (b)
certain
restrictive covenants and the related defaults and Events of
Default
applicable to the Issuer, in each case, upon compliance by the
Issuer with
certain conditions set forth in the Indenture, which provisions
apply to this
Security.
If any Event of Default with respect to Securities of
this series
shall occur and be continuing, the principal of, and any premium
and
Make-Whole Amount, if any, on, the outstanding Securities of this
series may
be declared due and payable in the manner and with the effect
provided in the
Indenture.
As provided in and subject to the provisions of the
Indenture, the
Holder of this Security shall not have the right to institute any
proceeding
with respect to the Indenture or for the appointment of a receiver
or trustee
or for any other remedy thereunder, unless such Holder shall have
previously
given the Trustee written notice of a continuing Event of Default
with respect
to the Securities of this series, the Holders of not less than 25%
in
principal amount of the Securities of this series at the time
Outstanding
shall have made written request to the Trustee to institute
proceedings in
respect of such Event of Default as Trustee, offered the Trustee
indemnity
satisfactory to the Trustee, and the Trustee shall not have
received from the
Holders of a majority in principal amount of Securities of this
series at the
time Outstanding a direction inconsistent with such request, and
the Trustee
shall have failed to institute any such proceeding, for 60 days
after receipt
of such notice, request and offer of indemnity. The foregoing
shall not apply
to any suit instituted by the Holder of this Security for the
enforcement of
any payment of principal hereof (and premium or Make-Whole Amount,
if any) or
any interest thereon in respect thereon on or after the respective
due dates
expressed herein.
The Indenture permits, with certain exceptions as therein
provided,
the amendment thereof and the modification of the rights and
obligations of
the Issuer and the rights of the Holders of the Securities of each
series to
be affected under the Indenture at any time by the Issuer and the
Trustee with
the consent of the Holders of not less than a majority in principal
amount of
the Securities of each series at the time Outstanding affected
thereby. The
Indenture also contains provisions permitting the Holders of
specified
percentages in principal amount of the Securities of each series at
the time
Outstanding, on behalf of the Holders of all Securities of such
series, to
waive compliance by the Issuer with certain provisions of the
Indenture and
certain past defaults under the Indenture and their consequences.
Any such
consent or waiver by the Holder of this Security shall be
conclusive and
binding upon such Holder and upon all future Holders of this
Security and of
any Security issued upon the registration of transfer hereof or in
exchange
hereof or in lieu hereof, whether or not notations of such consent
or waiver
is made upon this Security.
No reference herein to the Indenture and no provision of
this
Security or of the Indenture shall alter or impair the obligation
of the
Issuer, which is absolute and unconditional, to pay the principal
of, or
premium or Make-Whole Amount, if any, on, and interest on this
Security at the
times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain
limitations
therein set forth, the transfer of this Security is registrable in
the
Security Register, upon surrender of this Security for registration
of
transfer at the office or agency of the Issuer in any Place of
Payment where
the principal of, or premium or Make-Whole Amount, if any, on, and
interest on
this Security are payable, duly endorsed by, or accompanied by a
written
instrument of transfer in form satisfactory to the Issuer and the
Security
Registrar duly executed by, the Holder hereof or his attorney duly
authorized
in writing, and thereupon one or more new Securities of this
series, of
authorized denominations and for the same aggregate principal
amount, will be
issued to the designated transferee or transferees.
The Securities of this series are issuable only in
registered form
without coupons in denominations of $1,000 and any integral
multiple thereof.
As provided in the Indenture and subject to certain limitations
therein set
forth, Securities of this series are exchangeable for a like
aggregate
principal amount of Securities of this series of a different
authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration
of
transfer or exchange, but the Issuer may require payment of a sum
sufficient
to cover any tax or other governmental charge payable in connection
therewith.
Prior to due presentment of this Security for
registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or
the Trustee
may treat the Person in whose name this Security is registered as
the owner
hereof for all purposes, whether or not this Security be overdue,
and neither
the Issuer, the Trustee nor any such agent shall be affected by
notice to the
contrary.
All terms used in this Security not defined herein which
are defined
in the Indenture shall have the meanings assigned to them in the
Indenture.
THE INDENTURE AND THE SECURITIES, INCLUDING THIS
SECURITY, SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE
OF NEW YORK.
Pursuant to a recommendation promulgated by the Committee
on Uniform
Security Identification Procedures, the Issuer has caused "CUSIP"
numbers to
be printed on the Securities of this series as a convenience to the
Holders of
such Securities. No representation is made as to the correctness
or accuracy
of such CUSIP numbers as printed on the Securities, and reliance
may be placed
only on the other identification numbers printed hereon.
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