EXECUTION COPY
XXXXX XXXXXXXXX GROUP, L.P.
ISSUER
AND
SIMON PROPERTY GROUP, L.P.
GUARANTOR
TO
THE CHASE MANHATTAN BANK
TRUSTEE
____________________
THIRD SUPPLEMENTAL INDENTURE
DATED AS OF MAY 15, 1997
____________________
FIXED RATE AND FLOATING RATE MEDIUM-TERM NOTES
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
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
THIRD SUPPLEMENTAL INDENTURE, dated as of May 15, 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 Third Supplemental Indenture
(i) to create a series of debt securities, to be issued from time to time,
in an aggregate principal amount not to exceed $300,000,000, entitled
"Medium-Term Notes Due Nine Months or More From Date of Issue" (the
"Notes"); and (ii) to establish the form and the terms and conditions of
such Notes;
WHEREAS, the Guarantor intends by this Third 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 (the "General Partner"), has
approved the creation of the Notes and the forms, terms and conditions
thereof;
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 Third 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 Third
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 Third 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:
"FIXED RATE NOTES" means the Issuer's Fixed Rate Notes due nine
months or more from date of issue, a form of which is attached hereto as
EXHIBIT A.
"FLOATING RATE NOTES" means the Issuer's Floating Rate Notes due
nine months or more from date of issue, a form of which is attached hereto
as EXHIBIT B.
"INDENTURE" means the Original Indenture as supplemented by this
Third Supplemental Indenture.
"PRICING SUPPLEMENT" means a pricing supplement to the
Prospectus, dated November 21, 1996, as supplemented by the Prospectus
Supplement, dated May 15, 1997, setting forth the terms of the applicable
Notes.
SECTION 1.02 CREATION OF THE NOTES. In accordance with Section
301 of the Original Indenture, the Issuer hereby creates the Notes as a
separate series of its Securities issued pursuant to the Indenture. The
Notes shall be issued from time to time in an aggregate principal amount
not to exceed $300,000,000.
SECTION 1.03 FORM OF THE NOTES. Each Note will be issued in
fully registered book-entry form or in certificated form, as specified in
the applicable Pricing Supplement. The Fixed Rate Notes shall be
substantially in the form of EXHIBIT A attached hereto and the Floating
Rate Notes shall be substantially in the form of EXHIBIT B attached hereto.
SECTION 1.04 TERMS AND CONDITIONS OF THE NOTES. The Notes shall
be governed by all the terms and conditions of the Indenture, including,
without limitation, the terms and conditions set forth in the forms of Note
referred to in Section 1.03 above, as the same may be supplemented or, to
the extent allowed by the Indenture, modified by the additional or
different terms and conditions established from time to time with respect
to the Notes either in Board Resolutions of the General Partner or by
action of authorized officers of the General Partner and, in either such
case, such additional or different terms and conditions shall be set forth
in the Notes and the related Pricing Supplement. All such terms and
conditions set forth in such Notes and in such Pricing Supplement are
incorporated by reference into this Third Supplemental Indenture. In
addition, the provisions of Article 14, and the Guarantee provisions of
Article 17 of the Original Indenture shall apply to the Notes.
ARTICLE TWO
COVENANTS FOR BENEFIT OF HOLDERS OF NOTES.
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, 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 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
limitations 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.
(C) JUDGMENTS. The Issuer will indemnify the Holder of any Note
against any loss incurred by such Holder as a result of any
judgment or order being given or made for any amount due
under such Note and such judgment or order requiring payment
in a currency or composite currency (the "Judgment
Currency") other than the Specified Currency, and as a
result of any variation between (i) the rate of exchange at
which the Specified Currency amount is converted into the
Judgment Currency for the purpose of such judgment or order,
and (ii) the rate of exchange at which the Holder of such
Note, on the date of payment of such judgment or order, is
able to purchase the Specified Currency with the amount of
the Judgment Currency actually received by such Holder, as
the case may be.
Section 2.02 DEFINITIONS. As used in this Article Two, the
following terms shall have the following meanings:
"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 (as defined
in the Issuer's Prospectus, dated November 21, 1996) 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
portion, 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 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).
"INTEREST EXPENSE" includes the Operating Partnership's pro rata
share of joint venture interest expense and is reduced by amortization of
debt issuance costs.
"SPECIFIED CURRENCY" means, with respect to any Note, the
currency or composite currency in which such Note is denominated (or, if
such currency or composite currency is no longer legal tender for the
payment of public and private debts, such other currency or composite
currency of the relevant country which is then legal tender for the payment
of such debts).
"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.
"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 Third Supplemental Indenture or the due execution thereof by the
Issuer. 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 Third
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 Third 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 Third Supplemental Indenture by the Issuer and Guarantor
shall bind their successors and assigns, whether so expressed or not.
SECTION 4.04 SEPARABILITY CLAUSE. In case any one or more of
the provisions contained in this Third 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 Third Supplemental Indenture
shall be governed by and construed in accordance with the laws of the State
of New York. This Third Supplemental Indenture is subject to the
provisions of the Trust Indenture Act of 1939, as amended that are required
to be part of this Third Supplemental Indenture and shall, to the extent
applicable, be governed by such provisions.
SECTION 4.06 COUNTERPARTS. This Third 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.
* * * *
IN WITNESS WHEREOF, the parties hereto have caused this Third
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:
EXHIBIT A
[FACE OF NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE
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. (1)
UNLESS AND UNTIL THIS NOTE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR ANOTHER NOMINEE
OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF
SUCH SUCCESSOR. (2)
____________________
(1) This paragraph applies to global Notes only.
(2) This paragraph applies to global Notes only.
REGISTERED REGISTERED
NO. FXR - [__________] PRINCIPAL AMOUNT
CUSIP NO. [_________] $[ ]
XXXXX XXXXXXXXX GROUP, L.P.
MEDIUM-TERM NOTE
(Fixed Rate)
ORIGINAL ISSUE DATE:
INTEREST RATE: %
STATED MATURITY DATE:
INTEREST PAYMENT DATE(S):
[ ] _______ and _______
[ ] Other:
INITIAL REDEMPTION DATE:
INITIAL REDEMPTION PERCENTAGE: %
ANNUAL REDEMPTION PERCENTAGE REDUCTION: %
OPTIONAL REPAYMENT DATE(S):
REPAYMENT PRICE: %
[ ] CHECK IF A DISCOUNT NOTE:
Issue Price: %
SPECIFIED CURRENCY: AUTHORIZED DENOMINATION:
[ ] United States dollars [ ] $1,000 and integral
[ ] Other: multiples thereof
[ ] Other:
ISSUE PRICE: EXCHANGE RATE AGENT:
OTHER/ADDITIONAL PROVISIONS: ADDENDUM ATTACHED
[ ] Yes
[ ] No
XXXXX XXXXXXXXX GROUP, L.P., a Delaware limited partnership (the
"Issuer," which term includes any successor under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede & Co. or
its registered assigns, the principal sum of $______________ on the Stated
Maturity Date specified above (or any Redemption Date or Repayment Date,
each as defined on the reverse hereof or upon any declaration of
acceleration) (each such Stated Maturity Date, Redemption Date, Repayment
Date or declaration of acceleration being hereinafter referred to as the
"Maturity Date" with respect to the principal repayable on such date) and
to pay interest thereon, at the Interest Rate per annum specified above,
until the principal hereof is paid or duly made available for payment. The
Issuer will pay interest in arrears on each Interest Payment Date, if any,
specified above (each, an "Interest Payment Date"), commencing with the
first Interest Payment Date next succeeding the Original Issue Date
specified above, and on the Maturity Date; PROVIDED, HOWEVER, that if the
Original Issue Date occurs between a Record Date (as defined below) and the
next succeeding Interest Payment Date, interest payments will commence on
the second Interest Payment Date next succeeding the Original Issue Date to
the Holder of this Note on the Record Date with respect to such second
Interest Payment Date. Interest on this Note will be computed on the basis
of a 360-day year of twelve 30-day months.
Interest on this Note will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly
provided for (or from, and including, the Original Issue Date if no
interest has been paid or duly provided for) to, but excluding, the
applicable Interest Payment Date or the Maturity Date, as the case may be
(each, an "Interest Period"). The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, subject to certain
exceptions described herein, be paid to the Person in whose name this Note
(or one or more predecessor Notes) is registered in the Security Register
applicable to this Note at the close of business on the fifteenth calendar
day (whether or not a Business Day, as defined below) immediately preceding
such Interest Payment Date (the "Record Date"); PROVIDED, HOWEVER, that
interest payable on the Maturity Date will be payable to the Person to whom
the principal hereof and premium, if any, hereon shall be payable. Any
such interest not so punctually paid or duly provided for ("Defaulted
Interest") will forthwith cease to be payable to the Holder on any Record
Date, and shall be paid to the Person in whose name this Note is registered
in the Security Register applicable to this Note at the close of business
on a special record date (the "Special Record Date") for the payment of
such Defaulted Interest to be fixed by the Trustee hereinafter referred to,
notice whereof shall be given to the Holder of this Note by the Trustee not
less than 10 calendar days prior to such Special Record Date or may be paid
at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which this Note may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided for in the Indenture.
Payments of principal of, premium, if any, and interest in respect of
this Note due on the Maturity Date will be made in immediately available
funds upon presentation and surrender of this Note (and, with respect to
any applicable Repayment Date, a duly completed election form as
contemplated on the reverse hereof) at the corporate trust office of the
Trustee in the Borough of Manhattan, The City of New York, or at such other
paying agency in the Borough of Manhattan, The City of New York which is
maintained by the Trustee where Notes may be presented for payment,
registration of transfer or exchange, and where notices to or demands upon
the Issuer or Simon Property Group, L.P. (the "Guarantor") in respect of
the Notes or the Indenture may be made, as the Issuer may determine;
PROVIDED, HOWEVER, that if such payment is to be made in a Specified
Currency other than United States dollars as set forth below, such payment
will be made by wire transfer of immediately available funds to an account
with a bank designated by the Holder hereof at least 15 calendar days prior
to the Maturity Date, provided that such bank has appropriate facilities
therefor and that this Note (and, if applicable, a duly completed repayment
election form) is presented and surrendered at the aforementioned office of
the Trustee in time for the Trustee to make such payment in such funds in
accordance with its normal procedures. Payment of interest due on any
Interest Payment Date other than the Maturity Date will be made by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register maintained at the aforementioned office of
the Trustee; PROVIDED, HOWEVER, that a Holder of U.S.$10,000,000 (or, if
the Specified Currency specified above is other than United States dollars,
the equivalent thereof in the Specified Currency) or more in aggregate
principal amount of Notes (whether having identical or different terms and
provisions) will be entitled to receive interest payments on such Interest
Payment Date by wire transfer of immediately available funds if appropriate
wire transfer instructions have been received in writing by the Trustee not
less than 15 calendar days prior to such Interest Payment Date. Any such
wire transfer instructions received by the Trustee shall remain in effect
until revoked by such Xxxxxx.
If any Interest Payment Date or the Maturity Date falls on a day that
is not a Business Day, the required payment of principal, premium, if any,
and/or interest shall be made on the next succeeding Business Day with the
same force and effect as if made on the date such payment was due, and no
interest shall accrue with respect to such payment for the period from and
after such Interest Payment Date or the Maturity Date, as the case may be,
to the date of such payment on the next succeeding Business Day.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking
institutions are authorized or required by law, regulation or executive
order to close in The City of New York; PROVIDED, HOWEVER, that if the
Specified Currency is other than United States dollars and any payment is
to be made in the Specified Currency in accordance with the provisions
hereof, such day is also not a day on which banking institutions are
authorized or required by law, regulation or executive order to close in
the Principal Financial Center (as defined below) of the country issuing
the Specified Currency (or, in the case of European Currency Units ("ECU"),
is not a day that appears as an ECU non-settlement day on the display
designated as "ISDE" on the Xxxxxx Monitor Money Rates Service (or a day so
designated by the ECU Banking Association) or, if ECU non-settlement days
do not appear on that page (and are not so designated), is not a day on
which payments in ECU cannot be settled in the international interbank
market). "Principal Financial Center" means the capital city of the
country issuing the Specified Currency (except as described in the
immediately preceding sentence with respect to ECUs) except that with
respect to United States dollars, Australian dollars, Canadian dollars,
Deutsche marks, Dutch guilders, Italian lire, Swiss francs and ECU's, the
"Principal Financial Center" shall be The City of New York, Sydney,
Toronto, Frankfurt, Amsterdam, Milan, Zurich and Luxembourg, respectively.
The Issuer is obligated to make payment of principal of, premium, if
any, and interest in respect of this Note in the Specified Currency (or, if
the Specified Currency is not at the time of such payment legal tender for
the payment of public and private debts, in such other coin or currency of
the country which issued the Specified Currency as at the time of such
payment is legal tender for the payment of such debts). If the Specified
Currency is other than United States dollars, any such amounts so payable
by the Issuer will be converted by the Exchange Rate Agent specified above
into United States dollars for payment to the Holder of this Note;
PROVIDED, HOWEVER, that the Holder of this Note may elect to receive such
amounts in such Specified Currency pursuant to the provisions set forth
below.
If the Specified Currency is other than United States dollars and the
Holder of this Note shall not have duly made an election to receive all or
a specified portion of any payment of principal, premium, if any, and/or
interest in respect of this Note in the Specified Currency, any United
States dollar amount to be received by the Holder of this Note will be
based on the highest bid quotation in The City of New York received by the
Exchange Rate Agent at approximately 11:00 A.M., New York City time, on the
second Business Day preceding the applicable payment date from three
recognized foreign exchange dealers (one of whom may be the Exchange Rate
Agent) selected by the Exchange Rate Agent and approved by the Issuer for
the purchase by the quoting dealer of the Specified Currency for United
States dollars for settlement on such payment date in the aggregate amount
of the Specified Currency payable to all Holders of Notes scheduled to
receive United States dollar payments and at which the applicable dealer
commits to execute a contract. All currency exchange costs will be borne
by the Holder of this Note by deductions from such payments. If three such
bid quotations are not available, payments on this Note will be made in the
Specified Currency unless the Specified Currency is not available due to
the imposition of exchange controls or other circumstances beyond the
control of the Issuer.
If the Specified Currency is other than United States dollars, the
Holder of this Note may elect to receive all or a specified portion of any
payment of principal, premium, if any, and/or interest in respect of this
Note in the Specified Currency by submitting a written request for such
payment to the Trustee at its corporate trust office in The City of New
York on or prior to the applicable Record Date or at least 15 calendar days
prior to the Maturity Date, as the case may be. Such written request may
be mailed or hand delivered or sent by facsimile transmission. The Holder
of this Note may elect to receive all or a specified portion of all future
payments in the Specified Currency in respect of such principal, premium,
if any, and/or interest and need not file a separate election for each
payment. Such election will remain in effect until revoked by written
notice to the Trustee, but written notice of any such revocation must be
received by the Trustee on or prior to the applicable Record Date or at
least 15 calendar days prior to the Maturity Date, as the case may be.
If the Specified Currency is other than United States dollars or a
composite currency and the Holder of this Note shall have duly made an
election to receive all or a specified portion of any payment of principal,
premium, if any, and/or interest in respect of this Note in the Specified
Currency and if the Specified Currency is not available due to the
imposition of exchange controls or other circumstances beyond the control
of the Issuer, the Issuer will be entitled to satisfy its obligations to
the Holder of this Note by making such payment in United States dollars on
the basis of the Market Exchange Rate (as defined below) computed by the
Exchange Rate Agent on the second Business Day prior to such payment date
or, if such Market Exchange Rate is not then available, on the basis of the
most recently available Market Exchange Rate or as otherwise specified on
the face hereof. The "Market Exchange Rate" for the Specified Currency
means the noon dollar buying rate in The City of New York for cable
transfers for the Specified Currency as certified for customs purposes by
(or if not so certified, as otherwise determined by) the Federal Reserve
Bank of New York. Any payment made under such circumstances in United
States dollars will not constitute an Event of Default.
If the Specified Currency is a composite currency and the Holder of
this Note shall have duly made an election to receive all or a specified
portion of any payment of principal, premium, if any, and/or interest in
respect of this Note in the Specified Currency and if such composite
currency is unavailable due to the imposition of exchange controls or other
circumstances beyond the control of the Issuer, then the Issuer will be
entitled to satisfy its obligations to the Holder of this Note by making
such payment in United States dollars. The amount of each payment in
United States dollars shall be computed by the Exchange Rate Agent on the
basis of the equivalent of the composite currency in United States dollars.
The component currencies of the composite currency for this purpose
(collectively, the "Component Currencies" and each, a "Component Currency")
shall be the currency amounts that were components of the composite
currency as of the last day on which the composite currency was used. The
equivalent of the composite currency in United States dollars shall be
calculated by aggregating the United States dollar equivalents of the
Component Currencies. The United States dollar equivalent of each of the
Component Currencies shall be determined by the Exchange Rate Agent on the
basis of the most recently available Market Exchange Rate for each such
Component Currency computed by the Exchange Rate Agent on the second
Business Day prior to such payment date or, if such Market Exchange Rate is
not then available, on the basis of the most recently available Market
Exchange Rate for each such Component Currency, or as otherwise specified
on the face hereof.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a
Component Currency shall be divided or multiplied in the same proportion.
If two or more Component Currencies are consolidated into a single
currency, the amounts of those currencies as Component Currencies shall be
replaced by an amount in such single currency equal to the sum of the
amounts of the consolidated Component Currencies expressed in such single
currency. If any Component Currency is divided into two or more
currencies, the amount of the original Component Currency shall be replaced
by the amounts of such two or more currencies, the sum of which shall be
equal to the amount of the original Component Currency.
All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and binding on the Holder of this
Note.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof after the Trustee's Certificate of
Authentication and, if so specified above, in the Addendum hereto, which
further provisions shall have the same force and effect as if set forth on
the face hereof.
Notwithstanding any provisions to the contrary contained herein, if
the face of this Note specifies that an Addendum is attached hereto or that
"Other/Additional Provisions" apply, this Note shall be subject to the
terms set forth in such Addendum or such "Other/Additional Provisions".
Unless the Certificate of Authentication hereon has been executed by
the Trustee by manual signature, this Note shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
duly executed manually or by facsimile by its authorized officers.
Dated:
XXXXX XXXXXXXXX GROUP, L.P.
as Issuer
By: SD PROPERTY GROUP, INC.
as Managing General Partner
By: ______________________________
Name:
Title:
Attest:
______________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
as Trustee
By: ______________________________
Authorized Officer
[REVERSE OF NOTE]
XXXXX XXXXXXXXX GROUP, L.P.
MEDIUM-TERM NOTE
(FIXED RATE)
This Note is one of a duly authorized issue of debt securities of the
Issuer (hereinafter called the "Securities"), issued or to be issued under
and pursuant to an Indenture dated as of November 26, 1996, as amended,
modified or supplemented from time to time, (herein called the
"Indenture"), duly executed and delivered by the Issuer and the Guarantor
to The Chase Manhattan Bank, as Trustee (herein called the "Trustee," which
term includes any successor trustee under the Indenture with respect to the
series of Securities of which this Note is a part), to which Indenture and
all indentures supplemental thereto relating to this Note (including,
without limitation, the Third Supplemental Indenture, dated as of May 15,
1997, among the Issuer, the Guarantor and the Trustee) reference is hereby
made for a description of the rights, limitations of rights, obligations,
duties and immunities thereunder of the Trustee, the Issuer, the Guarantor
and the Holders of the Securities, and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Note is
one of the series of Securities designated as "Medium-Term Notes Due Nine
Months or More From Date of Issue" (the "Notes"). All terms used but not
defined in this Note or in an Addendum hereto shall have the meanings
assigned to such terms in the Indenture.
This Note is issuable only in registered form without coupons in
minimum denominations of U.S.$1,000 and integral multiples thereof or the
minimum Authorized Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless
otherwise provided on the face hereof in accordance with the provisions of
the following two paragraphs, will not be redeemable or repayable prior to
the Stated Maturity Date.
This Note will be subject to redemption at the option of the Issuer on
any date on or after the Initial Redemption Date, if any, specified on the
face hereof, in whole or from time to time in part in increments of
U.S.$1,000 or the minimum Authorized Denomination (provided that any
remaining principal amount hereof shall be at least U.S.$1,000 or such
minimum Authorized Denomination), at the Redemption Price (as defined
below), together with unpaid interest accrued thereon to the date fixed for
redemption (each, a "Redemption Date"), on written notice given to the
Holder of this Note no more than 60 nor less than 30 calendar days prior to
the Redemption Date and in accordance with the provisions of the Indenture.
If no Initial Redemption Date is set forth on the face hereof, this Note
may not be redeemed prior to Maturity. The "Redemption Price", if any,
shall initially be the Initial Redemption Percentage specified on the face
hereof, if any, multiplied by the unpaid principal amount of this Note to
be redeemed. The Initial Redemption Percentage, if any, shall decline at
each anniversary of the Initial Redemption Date by the Annual Redemption
Percentage Reduction, if any, specified on the face hereof until the
Redemption Price is 100% of the unpaid principal amount to be redeemed. In
the event of redemption of this Note in part only, a new Note of like tenor
for the unredeemed portion hereof and otherwise having the same terms as
this Note shall be issued in the name of the Holder hereof upon the
presentation and surrender hereof.
This Note will be subject to repayment by the Issuer at the option of
the Holder hereof on the Optional Repayment Date(s), if any, specified on
the face hereof, in whole or in part in increments of U.S. $1,000 or the
minimum Authorized Denomination (provided that any remaining principal
amount hereof shall be at least U.S. $1,000 or such minimum Authorized
Denomination), at a repayment price equal to 100% of the unpaid principal
amount to be repaid, together with unpaid interest accrued thereon to the
date fixed for repayment (each, a "Repayment Date"). If an Optional
Repayment Date is not set forth on the face hereof, this Note will not be
repayable at the option of the Holder hereof prior to Maturity. For this
Note to be repaid, this Note must be received, together with the form
hereon entitled "Option to Elect Repayment" duly completed, by the Trustee
at its corporate trust office not more than 60 nor less than 30 calendar
days prior to the Repayment Date. Exercise of such repayment option by the
Holder hereof will be irrevocable. In the event of repayment of this Note
in part only, a new Note of like tenor for the unrepaid portion hereof and
otherwise having the same terms as this Note shall be issued in the name of
the Holder hereof upon the presentation and surrender hereof.
If this Note is a Discount Note as specified on the face hereof, the
amount payable to the Holder of this Note in the event of redemption,
repayment or acceleration of maturity will be equal to the sum of (1) the
Issue Price, if any, specified on the face hereof (increased by any
accruals of the Discount, as defined below) and, in the event of any
redemption of this Note (if applicable), multiplied by the Initial
Redemption Percentage (as adjusted by the Annual Redemption Percentage
Reduction, if applicable), if any, and (2) any unpaid interest on this Note
accrued from the Original Issue Date to the Redemption Date, Repayment Date
or date of acceleration of maturity, as the case may be. The difference
between the Issue Price and 100% of the principal amount of this Note is
referred to herein as the "Discount".
For purposes of determining the amount of Discount that has accrued as
of any Redemption Date, Repayment Date or date of acceleration of maturity
of this Note, such Discount will be accrued so as to cause the yield on the
Note to be constant. The constant yield will be calculated using a 30-day
month, 360-day year convention, a compounding period that, except for the
Initial Period (as defined below), corresponds to the shortest period
between Interest Payment Dates (with ratable accruals within a compounding
period), a constant coupon rate equal to the initial interest rate
applicable to this Note and an assumption that the maturity of this Note
will not be accelerated. If the period from the Original Issue Date to the
initial Interest Payment Date (the "Initial Period") is shorter than the
compounding period for this Note, a proportionate amount of the yield for
an entire compounding period will be accrued. If the Initial Period is
longer than the compounding period, then such period will be divided into a
regular compounding period and a short period, with the short period being
treated as provided in the preceding sentence.
If an Event of Default, shall occur and be continuing, the principal
amount of the Notes may be declared accelerated and thereupon become due
and payable in the manner, with the effect, and subject to the conditions
provided in the Indenture.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Notes or (ii) certain covenants and Events of Default
with respect to the Notes, in each case upon compliance with certain
conditions set forth therein, which provisions apply to the Notes.
The Indenture contains provisions permitting the Issuer, the Guarantor
and the Trustee, with the consent of the Holders of not less than a
majority of the aggregate principal amount of the Securities at the time
Outstanding of all series to be affected (voting as one class), evidenced
as provided in the Indenture, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or modifying
in any manner the rights of the Holders of the Securities of each series;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security so affected, (i) change
the Stated Maturity of the principal of, or premium, (if any) or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate or amount of interest thereon or any
premium payable upon the redemption or acceleration thereof, or adversely
affect any right of repayment at the option of the Holder of any Security,
or change any Place of Payment where, or the currency or currencies,
currency unit or units or composite currency or currencies in which, the
principal of any Security or any premium or interest thereon is payable, or
impair the right to institute suit for the enforcement of any such payment
on or after the Stated Maturity thereof, or (ii) reduce the aforesaid
percentage of Securities the Holders of which are required to consent to
any such supplemental indenture, or (iii) reduce the percentage of
Securities the Holders of which are required to consent to any waiver of
compliance with certain provisions of the Indenture or any waiver of
certain defaults and consequences thereunder or to reduce the quorum or
voting requirements set forth in the Indenture, or (iv) effect certain
other changes to the Indenture or any supplemental indenture or in the
rights of Holders of the Securities. The Indenture also permits the
Holders of a majority in principal amount of the Outstanding Securities of
any series (or, in the case of certain defaults or Events of Defaults, all
series of Securities), on behalf of the Holders of all the Securities of
such series (or all of the Securities, as the case may be), to waive
compliance by the Issuer with certain provisions of the Indenture and
certain past defaults or Events of Default under the Indenture and their
consequences, prior to any declaration accelerating the maturity of such
Securities, or subject to certain conditions, rescind a declaration of
acceleration and its consequences with respect to such Securities. Any
such consent or waiver by the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and other
Notes issued upon the registration of transfer hereof or in exchange
heretofore or in lieu hereof, irrespective of whether or not notation of
such consent or waiver is made upon this Note or such other Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer or the
Guarantor, as the case may be, which is absolute and unconditional, to pay
principal, premium, if any, and interest in respect of this Note at the
times, places and rate or formula, and in the coin or currency, herein
prescribed.
Notwithstanding any other provision of the Indenture to the contrary,
no recourse shall be had, whether by levy or execution or otherwise, for
the payment of any sums due under the Securities, including, without
limitation, the principal of, premium, if any, or interest payable under
the Securities, or for the payment or performance of any obligation under,
or for any claim based on, the Indenture or otherwise in respect thereof,
against any partner of the Issuer, whether limited or general, including SD
Property Group, Inc., or such partner's assets or against any principal,
shareholder, officer, director, trustee or employee of such partner. It is
expressly understood that the sole remedies under the Securities and the
Indenture or under any other document with respect to the Securities,
against such parties with respect to such amounts, obligations or claims
shall be against the Issuer.
As provided in the Indenture and subject to certain limitations
therein and herein set forth, the transfer of this Note is registrable in
the Security Register of the Issuer upon surrender of this Note for
registration of transfer at the office or agency of the Trustee in any
place where the principal hereof and any premium or interest hereon are
payable, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Issuer and the Security Registrar duly
executed by, the Holder hereof or by his attorney duly authorized in
writing, and thereupon one or more new Notes, of authorized denominations
and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
As provided in the Indenture and subject to certain limitations
therein and herein set forth, this Note is exchangeable for a like
aggregate principal amount of Notes of different authorized denominations
at the office or agency of the Issuer in the Borough of Manhattan, the City
of New York, in the manner and subject to the limitations provided in the
Indenture but otherwise having the same terms and conditions, as requested
by the Holder hereof surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the 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 Note for registration of transfer,
the Issuer, the Guarantor, the Trustee and any agent of the Issuer, the
Guarantor or the Trustee may treat the Holder in whose name this Note is
registered as the absolute owner thereof for all purposes, whether or not
this Note be overdue and notwithstanding any notation of ownership or other
writing hereon, and neither the Issuer, the Guarantor, the Trustee nor any
such agent shall be affected by notice to the contrary.
The Indenture and this Note, including the validity hereof, shall be
governed by and construed in accordance with the laws of the State of New
York and for all purposes shall be construed in accordance with the laws of
such state, except as may otherwise be required by mandatory provisions of
law.
Capitalized terms used herein which are not otherwise defined shall
have the respective meanings assigned to them in the Indenture and all
indentures supplemental thereto relating to this Note.
FORM OF NOTATION ON SECURITY RELATING TO GUARANTEE
GUARANTEE
The undersigned, as Guarantor (the "Guarantor") under the
Indenture, dated as of November 26, 1996, duly executed and delivered by
Xxxxx XxXxxxxxx Group, L.P. (the "Issuer") and the Guarantor, to The Chase
Manhattan Bank, as Trustee (as the same may be amended or supplemented from
time to time, the "Indenture"), and referred to in the Security upon which
this notation is endorsed (the "Security") (i) has unconditionally
guaranteed as a primary obligor and not a surety (the "Guarantee") (a) the
payment of principal of, premium, if any, interest on (including post-
petition interest in any proceeding under any federal or state law or
regulation relating to any Bankruptcy Law whether or not an allowed claim
in such proceeding), and any other amounts payable with respect to the
Security, and (b) all other monetary obligations payable by the Issuer
under the Indenture and the Security; when and as the same shall become due
and payable, whether at Maturity, on redemption, by declaration of
acceleration or otherwise (all of the foregoing being hereinafter
collectively called the "Guaranteed Obligations"), in accordance with the
terms of the Security and the Indenture and (ii) has agreed to pay all
costs and expenses (including reasonable attorneys' fees) incurred by the
Trustee or any Holder in enforcing any rights under Article 17 of the
Indenture.
The obligations of the Guarantor to the Holders of the Security
pursuant to this Guarantee and the Indenture are expressly set forth in
Article 17 of the Indenture and reference is hereby made to such Indenture
for the precise terms of this Guarantee.
This is a continuing Guarantee and shall remain in full force and
effect until the termination thereof under Section 1706 of the Indenture or
until the principal of and interest on the Security and all other
Guaranteed Obligations shall have been paid in full. If at any time any
payment of the principal of, or interest on, the Security or any other
payment in respect of any Guaranteed Obligation is rescinded or must be
otherwise restored or returned upon the insolvency, bankruptcy or
reorganization of the Issuer or otherwise, the Guarantor's obligations
hereunder and under the Guarantee with respect to such payment shall be
reinstated as though such payment had been due but not made at such time,
and Article 17 of the Indenture, to the extent theretofore discharged,
shall be reinstated in full force and effect.
Pursuant to Section 1706 of the Indenture, the obligations of the
Guarantor under the Indenture shall terminate at such time the Guarantor
merges or consolidates with the Issuer or at such other time as the Issuer
acquires all of the assets and partnership interests of the Guarantor.
Notwithstanding any other provision of the Indenture to the
contrary, no recourse shall be had, whether by levy or execution or
otherwise, for the payment of any sums due under the Security, including,
without limitation, the principal of, premium, if any, or interest payable
under the Security, or for the payment or performance of any obligation
under, or for any claim based on, the Indenture or otherwise in respect
thereof, against any partner of the Guarantor, whether limited or general,
including Xxxxx XxXxxxxxx Group, Inc., or such partner's assets or against
any principal, shareholder, officer, director, trustee or employee of such
partner. It is expressly understood that the sole remedies under the
Guarantee and the Indenture or under any other document with respect to the
Guaranteed Obligations against such parties with respect to such amounts,
obligations or claims shall be against the Guarantor.
This Guarantee shall not be valid or become obligatory for any
purpose with respect to the Security until the certificate of
authentication on such Security shall have been signed by or on behalf of
the Trustee.
THE TERMS OF ARTICLE 17 OF THE INDENTURE ARE INCORPORATED HEREIN
BY REFERENCE.
Capitalized terms used herein have the same meanings given in the
Indenture unless otherwise indicated.
SIMON PROPERTY GROUP, L.P.
as Guarantor
By: Xxxxx XxXxxxxxx Group, Inc.,
its sole general partner
By: ______________________________
Name:
Title:
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - ______
Custodian _____
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act___________
in common (State)
Additional abbreviations may also be used though not in the above
list.
__________________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
| |
|_______________________________|________________________________
_________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
__________________________________________________________________
this Note and all rights thereunder hereby irrevocably constituting and
appointing __________________________________________________
Attorney to transfer this Note on the books of the Trustee, with full power
of substitution in the premises.
Dated:_____________________ ___________________________________
____________________________________
Notice: The signature(s) on this Assignment
must correspond with the name(s) as written
upon the face of this Note in every
particular, without alteration or enlargement
or any change whatsoever.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Issuer to repay this Note (or portion hereof specified below) pursuant to
its terms at a price equal to 100% of the principal amount to be repaid,
together with unpaid interest accrued hereon to the Repayment Date, to the
undersigned, at
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its corporate
trust office in the Borough of Manhattan, The City of New York, not more
than 60 nor less than 30 calendar days prior to the Repayment Date, this
Note with this "Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of U.S.$1,000 (or, if
the Specified Currency is other than United States dollars, the minimum
Authorized Denomination specified on the face hereof)) which the Holder
elects to have repaid and specify the denomination or denominations (which
shall be an Authorized Denomination) of the Notes to be issued to the
Holder for the portion of this Note not being repaid (in the absence of any
such specification, one such Note will be issued for the portion not being
repaid).
Principal Amount
to be Repaid: $
Notice: The signature(s) on this
Date: Option to Elect Repayment must
correspond with the name(s) as
written upon the face of this
Note in every particular,
without alteration or
enlargement or any change
whatsoever.
EXHIBIT B
[FACE OF NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE
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. (1)
UNLESS AND UNTIL THIS NOTE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR ANOTHER NOMINEE
OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF
SUCH SUCCESSOR.(2)
____________________
(1) This paragraph applies to global Notes only.
(2) This paragraph applies to global Notes only.
REGISTERED REGISTERED
NO. FLR - [__________] PRINCIPAL AMOUNT
CUSIP NO. [_________] $[ ]
XXXXX XXXXXXXXX GROUP, L.P.
MEDIUM-TERM NOTE
(Floating Rate)
INTEREST RATE BASIS ORIGINAL ISSUE DATE: STATED MATURITY DATE:
OR BASES:
IF LIBOR: IF CMT RATE:
[ ] LIBOR Reuters Designated CMT Telerate Page:
[ ] LIBOR Telerate If Telerate Page 7052:
[ ] Designated LIBOR Currency: [ ] Weekly Average
[ ] Designated LIBOR Page: [ ] Monthly Average
[ ] Reuters Page: ______ Designated CMT Maturity Index:
[ ] Telerate Page: ______
INITIAL INTEREST RATE: %
INITIAL INTEREST RESET DATE:
INTEREST RESET PERIOD:
INTEREST RESET DATE(S):
INTEREST PAYMENT DATE(S):
INDEX MATURITY:
SPREAD (PLUS OR MINUS):
SPREAD MULTIPLIER:
MINIMUM INTEREST RATE: %
MAXIMUM INTEREST RATE: %
INITIAL REDEMPTION DATE:
INITIAL REDEMPTION PERCENTAGE: %
ANNUAL REDEMPTION PERCENTAGE REDUCTION: %
OPTIONAL REPAYMENT DATE(S):
REPAYMENT PRICE: %
INTEREST CALCULATION: DAY COUNT CONVENTION:
[ ] Regular Floating Rate Note [ ] 30/360 for the period
[ ] Floating Rate/Fixed Rate Note
from to .
Fixed Rate Commencement Date: [ ] Actual/360 for the period
Fixed Interest Rate: % from to .
[ ] Inverse Floating Rate Note [ ] Actual/Actual for the
period
Fixed Interest Rate: % from to .
[ ] Discount Note Issue Price: % Applicable Interest Rate
Basis:
SPECIFIED CURRENCY: AUTHORIZED DENOMINATION:
[ ] United States dollars [ ] $1,000 and integral
multiples thereof
[ ] Other: [ ] Other:
EXCHANGE RATE AGENT: ISSUE PRICE:
CALCULATION AGENT: AGENT'S DISCOUNT OR COMMISSION:
ADDENDUM ATTACHED OTHER/ADDITIONAL PROVISIONS:
[ ] Yes
[ ] No
XXXXX XXXXXXXXX GROUP, L.P., a Delaware limited partnership (the
"Issuer", which term includes any successor under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede & Co. or
its registered assigns, the principal sum of $_______________ , on the
Stated Maturity Date specified above (or any Redemption Date or Repayment
Date, each as defined on the reverse hereof or upon any declaration of
acceleration) (each such Stated Maturity Date, Redemption Date, Repayment
Date or declaration of acceleration being hereinafter referred to as the
"Maturity Date" with respect to the principal repayable on such date) and
to pay interest thereon, at a rate per annum equal to the Initial Interest
Rate specified above until the Initial Interest Reset Date specified above
and thereafter at a rate determined in accordance with the provisions
specified above and on the reverse hereof with respect to one or more
Interest Rate Bases specified above until the principal hereof is paid or
duly made available for payment. The Issuer will pay interest in arrears
on each Interest Payment Date, if any, specified above (each, an "Interest
Payment Date"), commencing with the first Interest Payment Date next
succeeding the Original Issue Date specified above, and on the Maturity
Date; PROVIDED, HOWEVER, that if the Original Issue Date occurs between a
Record Date (as defined below) and the next succeeding Interest Payment
Date, interest payments will commence on the second Interest Payment Date
next succeeding the Original Issue Date to the Holder of this Note on the
Record Date with respect to such second Interest Payment Date.
Interest on this Note will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly
provided for (or from, and including, the Original Issue Date if no
interest has been paid or duly provided for) to, but excluding, the
applicable Interest Payment Date or the Maturity Date, as the case may be
(each, an "Interest Period"). The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, subject to certain
exceptions described herein, be paid to the Person in whose name this Note
(or one or more predecessor Notes) is registered in the Security Register
applicable to this Note at the close of business on the fifteenth calendar
day (whether or not a Business Day, as defined on the reverse hereof)
immediately preceding such Interest Payment Date (the "Record Date");
PROVIDED, HOWEVER, that interest payable on the Maturity Date will be
payable to the Person to whom the principal hereof and premium, if any,
hereon shall be payable. Any such interest not so punctually paid or duly
provided for ("Defaulted Interest") will forthwith cease to be payable to
the Holder on any Record Date, and shall be paid to the Person in whose
name this Note is registered in the Security Register applicable to this
Note at the close of business on a special record date (the "Special Record
Date") for the payment of such Defaulted Interest to be fixed by the
Trustee hereinafter referred to, notice whereof shall be given to the
Holder of this Note by the Trustee not less than 10 calendar days prior to
such Special Record Date or may be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which this Note may be listed, and upon such notice as may be required by
such exchange, all as more fully provided for in the Indenture.
Payments of principal of, premium, if any, and interest in respect of
this Note due on the Maturity Date will be made in immediately available
funds upon presentation and surrender of this Note (and, with respect to
any applicable Repayment Date, a duly completed election form as
contemplated on the reverse hereof) at the corporate trust office of the
Trustee in the Borough of Manhattan, The City of New York, or at such other
paying agency in the Borough of Manhattan, The City of New York, which is
maintained by the Trustee where Notes may be presented for payment,
registration of transfer or exchange, and where notices to or demands upon
the Issuer or Simon Property Group, L.P. (the "Guarantor") in respect of
the Notes or the Indenture may be made, as the Issuer may determine;
PROVIDED, HOWEVER, that if such payment is to be made in a Specified
Currency other than United States dollars as set forth below, such payment
will be made by wire transfer of immediately available funds to an account
with a bank designated by the Holder hereof at least 15 calendar days prior
to the Maturity Date, provided that such bank has appropriate facilities
therefor and that this Note (and, if applicable, a duly completed repayment
election form) is presented and surrendered at the aforementioned office of
the Trustee in time for the Trustee to make such payment in such funds in
accordance with its normal procedures. Payment of interest due on any
Interest Payment Date other than the Maturity Date will be made by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register maintained at the aforementioned office of
the Trustee; PROVIDED, HOWEVER, that a Holder of U.S.$10,000,000 (or, if
the Specified Currency specified above is other than United States dollars,
the equivalent thereof in the Specified Currency) or more in aggregate
principal amount of Notes (whether having identical or different terms and
provisions) will be entitled to receive interest payments on such Interest
Payment Date by wire transfer of immediately available funds if appropriate
wire transfer instructions have been received in writing by the Trustee not
less than 15 calendar days prior to such Interest Payment Date. Any such
wire transfer instructions received by the Trustee shall remain in effect
until revoked by such Xxxxxx.
If any Interest Payment Date other than the Maturity Date would
otherwise be a day that is not a Business Day, such Interest Payment Date
shall be postponed to the next succeeding Business Day, except that if
LIBOR is an applicable Interest Rate Basis and such Business Day falls in
the next succeeding calendar month, such Interest Payment Date shall be the
immediately preceding Business Day, and if the Maturity Date falls on a day
that is not a Business Day, the required payment of principal, premium, if
any, and interest shall be made on the next succeeding Business Day, each
with the same force and effect as if made on the date such payment was due,
and no interest shall accrue with respect to such payment for the period
from and after such Interest Payment Date or the Maturity Date, as the case
may be, to the date of such payment on the next succeeding Business Day.
The Issuer is obligated to make payment of principal of, premium, if
any, and interest in respect of this Note in the Specified Currency (or, if
the Specified Currency is not at the time of such payment legal tender for
the payment of public and private debts, in such other coin or currency of
the country which issued the Specified Currency as at the time of such
payment is legal tender for the payment of such debts). If the Specified
Currency is other than United States dollars, any such amounts so payable
by the Issuer will be converted by the Exchange Rate Agent specified above
into United States dollars for payment to the Holder of this Note;
PROVIDED, HOWEVER, that the Holder of this Note may elect to receive such
amounts in such Specified Currency pursuant to the provisions set forth
below.
If the Specified Currency is other than United States dollars and the
Holder of this Note shall not have duly made an election to receive all or
a specified portion of any payment of principal, premium, if any, and/or
interest in respect of this Note in the Specified Currency, any United
States dollar amount to be received by the Holder of this Note will be
based on the highest bid quotation in The City of New York received by the
Exchange Rate Agent at approximately 11:00 A.M., New York City time, on the
second Business Day preceding the applicable payment date from three
recognized foreign exchange dealers (one of whom may be the Exchange Rate
Agent) selected by the Exchange Rate Agent and approved by the Issuer for
the purchase by the quoting dealer of the Specified Currency for United
States dollars for settlement on such payment date in the aggregate amount
of the Specified Currency payable to all Holders of Notes scheduled to
receive United States dollar payments and at which the applicable dealer
commits to execute a contract. All currency exchange costs will be borne
by the Holder of this Note by deductions from such payments. If three such
bid quotations are not available, payments on this Note will be made in the
Specified Currency unless the Specified Currency is not available due to
the imposition of exchange controls or other circumstances beyond the
control of the Issuer.
If the Specified Currency is other than United States dollars, the
Holder of this Note may elect to receive all or a specified portion of any
payment of principal, premium, if any, and/or interest in respect of this
Note in the Specified Currency by submitting a written request for such
payment to the Trustee at its corporate trust office in The City of New
York on or prior to the applicable Record Date or at least 15 calendar days
prior to the Maturity Date, as the case may be. Such written request may
be mailed or hand delivered or sent by facsimile transmission. The Holder
of this Note may elect to receive all or a specified portion of all future
payments in the Specified Currency in respect of such principal, premium,
if any, and/or interest and need not file a separate election for each
payment. Such election will remain in effect until revoked by written
notice to the Trustee, but written notice of any such revocation must be
received by the Trustee on or prior to the applicable Record Date or at
least 15 calendar days prior to the Maturity Date, as the case may be.
If the Specified Currency is other than United States dollars or a
composite currency and the Holder of this Note shall have duly made an
election to receive all or a specified portion of any payment of principal,
premium, if any, and/or interest in respect of this Note in the Specified
Currency and if the Specified Currency is not available due to the
imposition of exchange controls or other circumstances beyond the control
of the Issuer, the Issuer will be entitled to satisfy its obligations to
the Holder of this Note by making such payment in United States dollars on
the basis of the Market Exchange Rate (as defined below) computed by the
Exchange Rate Agent on the second Business Day prior to such payment date,
or, if such Market Exchange Rate is not then available, on the basis of the
most recently available Market Exchange Rate or as otherwise specified on
the face hereof. The "Market Exchange Rate" for the Specified Currency
means the noon dollar buying rate in The City of New York for cable
transfers for the Specified Currency as certified for customs purposes by
(or if not so certified, as otherwise determined by) the Federal Reserve
Bank of New York. Any payment made under such circumstances in United
States dollars will not constitute an Event of Default.
If the Specified Currency is a composite currency and the Holder of
this Note shall have duly made an election to receive all or a specified
portion of any payment of principal, premium, if any, and/or interest in
respect of this Note in the Specified Currency and if such composite
currency is unavailable due to the imposition of exchange controls or other
circumstances beyond the control of the Issuer, then the Issuer will be
entitled to satisfy its obligations to the Holder of this Note by making
such payment in United States dollars. The amount of each payment in
United States dollars shall be computed by the Exchange Rate Agent on the
basis of the equivalent of the composite currency in United States dollars.
The component currencies of the composite currency for this purpose
(collectively, the "Component Currencies" and each, a "Component Currency")
shall be the currency amounts that were components of the composite
currency as of the last day on which the composite currency was used. The
equivalent of the composite currency in United States dollars shall be
calculated by aggregating the United States dollar equivalents of the
Component Currencies. The United States dollar equivalent of each of the
Component Currencies shall be determined by the Exchange Rate Agent on the
basis of the most recently available Market Exchange Rate for each such
Component Currency computed by the Exchange Rate Agent on the second
Business Day prior to such payment date or, if such Market Exchange Rate is
not then available, on the basis of the most recently available Market
Exchange Rate for each such Component Currency, or as otherwise specified
on the face hereof.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a
Component Currency shall be divided or multiplied in the same proportion.
If two or more Component Currencies are consolidated into a single
currency, the amounts of those currencies as Component Currencies shall be
replaced by an amount in such single currency equal to the sum of the
amounts of the consolidated Component Currencies expressed in such single
currency. If any Component Currency is divided into two or more
currencies, the amount of the original Component Currency shall be replaced
by the amounts of such two or more currencies, the sum of which shall be
equal to the amount of the original Component Currency.
All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and binding on the Holder of this
Note.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof after the Trustee's Certificate of
Authentication and, if so specified above, in the Addendum hereto, which
further provisions shall have the same force and effect as if set forth on
the face hereof.
Notwithstanding any provisions to the contrary contained herein, if
the face of this Note specifies that an Addendum is attached hereto or that
"Other/Additional Provisions" apply, this Note shall be subject to the
terms set forth in such Addendum or such "Other/Additional Provisions".
Unless the Certificate of Authentication hereon has been executed by
the Trustee by manual signature, this Note shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed manually or by facsimile by its authorized officers.
Dated:
XXXXX XXXXXXXXX GROUP, L.P.
as Issuer
By: SD PROPERTY GROUP, INC.
as Managing General Partner
By: ______________________________
Name:
Title:
Attest:
______________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
as Trustee
By: ______________________________
Authorized Officer
[REVERSE OF NOTE]
XXXXX XXXXXXXXX GROUP, L.P.
MEDIUM-TERM NOTE
(Floating Rate)
This Note is one of a duly authorized issue of debt securities of the
Issuer (hereinafter called the "Securities"), issued or to be issued under
and pursuant to an Indenture dated as of November 26, 1996, as amended,
modified or supplemented from time to time, (herein called the
"Indenture"), duly executed and delivered by the Issuer and the Guarantor
to The Chase Manhattan Bank, as Trustee (herein called the "Trustee," which
term includes any successor trustee under the Indenture with respect to the
series of Securities of which this Note is a part), to which Indenture and
all indentures supplemental thereto relating to this Note (including,
without limitation, the Third Supplemental Indenture, dated as of May 15,
1997, among the Issuer, the Guarantor and the Trustee) reference is hereby
made for a description of the rights, limitations of rights, obligations,
duties and immunities thereunder of the Trustee, the Issuer, the Guarantor
and the Holders of the Securities, and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Note is
one of the series of Securities designated as "Medium-Term Notes Due Nine
Months or More From Date of Issue" (the "Notes"). All terms used but not
defined in this Note or in an Addendum hereto shall have the meanings
assigned to such terms in the Indenture.
This Note is issuable only in registered form without coupons in
minimum denominations of U.S.$1,000 and integral multiples thereof or the
minimum Authorized Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless
otherwise provided on the face hereof in accordance with the provisions of
the following two paragraphs, will not be redeemable or repayable prior to
the Stated Maturity Date.
This Note will be subject to redemption at the option of the Issuer on
any date on or after the Initial Redemption Date, if any, specified on the
face hereof, in whole or from time to time in part in increments of
U.S.$1,000 or the minimum Authorized Denomination (provided that any
remaining principal amount hereof shall be at least U.S.$1,000 or such
minimum Authorized Denomination), at the Redemption Price (as defined
below), together with unpaid interest accrued thereon to the date fixed for
redemption (each, a "Redemption Date"), on written notice given to the
Holder of this Note no more than 60 nor less than 30 calendar days prior to
the Redemption Date and in accordance with the provisions of the Indenture.
If no Initial Redemption Date is set forth on the face hereof, this Note
may not be redeemed prior to Maturity. The "Redemption Price", if any,
shall initially be the Initial Redemption Percentage specified on the face
hereof, if any, multiplied by the unpaid principal amount of this Note to
be redeemed. The Initial Redemption Percentage, if any, shall decline at
each anniversary of the Initial Redemption Date by the Annual Redemption
Percentage Reduction, if any, specified on the face hereof until the
Redemption Price is 100% of the unpaid principal amount to be redeemed. In
the event of redemption of this Note in part only, a new Note of like tenor
for the unredeemed portion hereof and otherwise having the same terms as
this Note shall be issued in the name of the Holder hereof upon the
presentation and surrender hereof.
This Note will be subject to repayment by the Issuer at the option of
the Holder hereof on the Optional Repayment Date(s), if any, specified on
the face hereof, in whole or in part in increments of U.S. $1,000 or the
minimum Authorized Denomination (provided that any remaining principal
amount hereof shall be at least U.S. $1,000 or such minimum Authorized
Denomination), at a repayment price equal to 100% of the unpaid principal
amount to be repaid, together with unpaid interest accrued thereon to the
date fixed for repayment (each, a "Repayment Date"). If an Optional
Repayment Date is not set forth on the face hereof, this Note will not be
repayable at the option of the Holder hereof prior to Maturity. For this
Note to be repaid, this Note must be received, together with the form
hereon entitled "Option to Elect Repayment" duly completed, by the Trustee
at its corporate trust office not more than 60 nor less than 30 calendar
days prior to the Repayment Date. Exercise of such repayment option by the
Holder hereof will be irrevocable. In the event of repayment of this Note
in part only, a new Note of like tenor for the unrepaid portion hereof and
otherwise having the same terms as this Note shall be issued in the name of
the Holder hereof upon the presentation and surrender hereof.
If the Interest Calculation of this Note is specified on the face
hereof as a Discount Note, the amount payable to the Holder of this Note in
the event of redemption, repayment or acceleration of maturity of this Note
will be equal to the sum of (1) the Issue Price, if any, specified on the
face hereof (increased by any accruals of the Discount, as defined below)
and, in the event of any redemption of this Note (if applicable),
multiplied by the Initial Redemption Percentage (as adjusted by the Annual
Redemption Percentage Reduction, if applicable), if any, and (2) any unpaid
interest on this Note accrued from the Original Issue Date to the
Redemption Date, Repayment Date or date of acceleration of maturity, as the
case may be. The difference between the Issue Price and 100% of the
principal amount of this Note is referred to herein as the "Discount."
For purposes of determining the amount of Discount that has accrued as
of any Redemption Date, Repayment Date or date of acceleration of maturity
of this Note, such Discount will be accrued so as to cause an assumed yield
on the Note to be constant. The assumed constant yield will be calculated
using a 30-day month, 360-day year convention, a compounding period that,
except for the Initial Period (as defined below), corresponds to the
shortest period between Interest Payment Dates (with ratable accruals
within a compounding period), a constant coupon rate equal to the initial
interest rate applicable to this Note and an assumption that the maturity
of this Note will not be accelerated. If the period from the Original
Issue Date to the initial Interest Payment Date (the "Initial Period") is
shorter than the compounding period for this Note, a proportionate amount
of the yield for an entire compounding period will be accrued. If the
Initial Period is longer than the compounding period, then such period will
be divided into a regular compounding period and a short period, with the
short period being treated as provided in the preceding sentence.
The interest rate borne by this Note will be determined as follows:
(i) Unless the Interest Calculation of this Note is specified on
the face hereof as a "Floating Rate/Fixed Rate Note" or an "Inverse
Floating Rate Note", or as having an Addendum attached or having
"Other/Additional Provisions" apply, in each case relating to a
different interest rate formula, this Note shall be designated as a
"Regular Floating Rate Note" and, except as set forth below or on the
face hereof, shall bear interest at the rate determined by reference
to the applicable Interest Rate Basis or Bases (a) plus or minus the
Spread, if any, and/or (b) multiplied by the Spread Multiplier, if
any, in each case as specified on the face hereof. Commencing on the
Initial Interest Reset Date, the rate at which interest on this Note
shall be payable shall be reset as of each Interest Reset Date
specified on the face hereof; PROVIDED, HOWEVER, that the interest
rate in effect for the period, if any, from the Original Issue Date to
the Initial Interest Reset Date shall be the Initial Interest Rate.
(ii) If the Interest Calculation of this Note is specified on the
face hereof as a "Floating Rate/Fixed Rate Note", then, except as set
forth below or on the face hereof, this Note shall bear interest at
the rate determined by reference to the applicable Interest Rate Basis
or Bases (a) plus or minus the Spread, if any, and/or (b) multiplied
by the Spread Multiplier, if any. Commencing on the Initial Interest
Reset Date, the rate at which interest on this Note shall be payable
shall be reset as of each Interest Reset Date; PROVIDED, HOWEVER, that
(y) the interest rate in effect for the period, if any, from the
Original Issue Date to the Initial Interest Reset Date shall be the
Initial Interest Rate and (z) the interest rate in effect for the
period commencing on the Fixed Rate Commencement Date specified on the
face hereof to the Maturity Date shall be the Fixed Interest Rate
specified on the face hereof or, if no such Fixed Interest Rate is
specified, the interest rate in effect hereon on the day immediately
preceding the Fixed Rate Commencement Date.
(iii) If the Interest Calculation of this Note is specified on
the face hereof as an "Inverse Floating Rate Note", then, except as
set forth below or on the face hereof, this Note shall bear interest
at the Fixed Interest Rate minus the rate determined by reference to
the applicable Interest Rate Basis or Bases (a) plus or minus the
Spread, if any, and/or (b) multiplied by the Spread Multiplier, if
any; PROVIDED, HOWEVER, that, unless otherwise specified on the face
hereof, the interest rate hereon shall not be less than zero.
Commencing on the Initial Interest Reset Date, the rate at which
interest on this Note shall be payable shall be reset as of each
Interest Reset Date; PROVIDED, HOWEVER, that the interest rate in
effect for the period, if any, from the Original Issue Date to the
Initial Interest Reset Date shall be the Initial Interest Rate.
Unless otherwise specified on the face hereof, the rate with respect
to each Interest Rate Basis will be determined in accordance with the
applicable provisions below. Except as set forth above or on the face
hereof, the interest rate in effect on each day shall be (i) if such day is
an Interest Reset Date, the interest rate determined as of the Interest
Determination Date (as defined below) immediately preceding such Interest
Reset Date or (ii) if such day is not an Interest Reset Date, the interest
rate determined as of the Interest Determination Date immediately preceding
the most recent Interest Reset Date.
If any Interest Reset Date would otherwise be a day that is not a
Business Day, such Interest Reset Date shall be postponed to the next
succeeding Business Day, except that if LIBOR is an applicable Interest
Rate Basis and such Business Day falls in the next succeeding calendar
month, such Interest Reset Date shall be the immediately preceding Business
Day. In addition, if the Treasury Rate is an applicable Interest Rate
Basis and the Interest Determination Date would otherwise fall on an
Interest Reset Date, then such Interest Reset Date will be postponed to the
next succeeding Business Day.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking
institutions are authorized or required by law, regulation or executive
order to close in The City of New York; PROVIDED, HOWEVER, that if the
Specified Currency is other than United States dollars and any payment is
to be made in the Specified Currency in accordance with the provisions
hereof, such day is also not a day on which banking institutions are
authorized or required by law, regulation or executive order to close in
the Principal Financial Center (as defined below) of the country issuing
the Specified Currency (or, in the case of European Currency Units ("ECU"),
is not a day that appears as an ECU non-settlement day on the display
designated as "ISDE" on the Xxxxxx Monitor Money Rates Service (or a day so
designated by the ECU Banking Association) or, if ECU non-settlement days
do not appear on that page (and are not so designated), is not a day on
which payments in ECU cannot be settled in the international interbank
market); PROVIDED, FURTHER, that if LIBOR is an applicable Interest Rate
Basis on this Note, such day is also a London Business Day (as defined
below). "London Business Day" means any day on which dealings in the
Designated LIBOR Currency (as defined below) are transacted in the London
interbank market. "Principal Financial Center" means (i) the capital city
of the country issuing the Specified Currency (except as described above
with respect to ECUs) or (ii) the capital city of the country to which the
Designated LIBOR Currency, if applicable, relates (or, in the case of ECU,
Luxembourg), except, in each case, that with respect to United States
dollars, Canadian dollars, Australian dollars, Deutsche marks, Dutch
guilders, Italian lire, Swiss francs and ECU's, the "Principal Financial
Center" shall be The City of New York, Sydney, Toronto, Frankfurt,
Amsterdam, Milan (solely in the case of clause (i) above), Zurich and
Luxembourg, respectively.
The interest rate applicable to each Interest Reset Period (as
specified on the face hereof) commencing on the related Interest Reset Date
will be the rate determined by the Calculation Agent as of the applicable
Interest Determination Date and calculated on or prior to the Calculation
Date (as hereinafter defined), except with respect to LIBOR and the
Eleventh District Cost of Funds Rate, which will be calculated on such
Interest Determination Date. The "Interest Determination Date" with
respect to the CD Rate, the CMT Rate, the Commercial Paper Rate, the
Federal Funds Rate and the Prime Rate will be the second Business Day
immediately preceding the applicable Interest Reset Date; the "Interest
Determination Date" with respect to the Eleventh District Cost of Funds
Rate shall be the last working day of the month immediately preceding the
applicable Interest Reset Date on which the Federal Home Loan Bank of San
Francisco (the "FHLB of San Francisco") publishes the Index (as defined
below); and the "Interest Determination Date" with respect to LIBOR shall
be the second London Business Day immediately preceding the applicable
Interest Reset Date, unless the Designated LIBOR Currency is British pounds
sterling, in which case the "Interest Determination Date" will be the
applicable Interest Reset Date. The "Interest Determination Date" with
respect to the Treasury Rate shall be the day in the week in which the
applicable Interest Reset Date falls on which day Treasury Bills (as
defined below) are normally auctioned (Treasury Bills are normally sold at
an auction held on Monday of each week, unless that day is a legal holiday,
in which case the auction is normally held on the following Tuesday, except
that such auction may be held on the preceding Friday); PROVIDED, HOWEVER,
that if an auction is held on the Friday of the week preceding the
applicable Interest Reset Date, the Interest Determination Date shall be
such preceding Friday; PROVIDED, FURTHER, that if the Interest
Determination Date would otherwise fall on an Interest Reset Date, then
such Interest Reset Date shall be postponed to the next succeeding Business
Day. If the interest rate of this Note is determined with reference to two
or more Interest Rate Bases specified on the face hereof, the "Interest
Determination Date" pertaining to this Note shall be the most recent
Business Day which is at least two Business Days prior to the applicable
Interest Reset Date on which each Interest Rate Basis is determinable. Each
Interest Rate Basis shall be determined as of such date, and the applicable
interest rate shall take effect on the related Interest Reset Date.
CD RATE. If an Interest Rate Basis for this Note is specified on the
face hereof as the CD Rate, the CD Rate shall be determined as of the
applicable Interest Determination Date (a "CD Rate Interest Determination
Date") as the rate on such date for negotiable United States dollar
certificates of deposit having the Index Maturity specified on the face
hereof as published by the Board of Governors of the Federal Reserve System
in "Statistical Release H.15(519), Selected Interest Rates" or any
successor publication ("H.15(519)") under the heading "CDs (Secondary
Market)", or, if not published by 3:00 P.M., New York City time, on the
related Calculation Date (as defined below), the rate on such CD Rate
Interest Determination Date for negotiable United States dollar
certificates of deposit of the Index Maturity as published by the Federal
Reserve Bank of New York in its daily statistical release "Composite 3:30
P.M. Quotations for United States Government Securities" or any successor
publication ("Composite Quotations") under the heading "Certificates of
Deposit". If such rate is not yet published in either H.15(519) or
Composite Quotations by 3:00 P.M., New York City time, on the related
Calculation Date, then the CD Rate on such CD Rate Interest Determination
Date will be calculated by the Calculation Agent specified on the face
hereof and will be the arithmetic mean of the secondary market offered
rates as of 10:00 A.M., New York City time, on such CD Rate Interest
Determination Date, of three leading nonbank dealers in negotiable United
States dollar certificates of deposit in The City of New York selected by
the Calculation Agent after consultation with the Issuer for negotiable
United States dollar certificates of deposit of major United States money
market banks with a remaining maturity closest to the Index Maturity in an
amount that is representative for a single transaction in that market at
that time; PROVIDED, HOWEVER, that if the dealers so selected by the
Calculation Agent are not quoting as mentioned in this sentence, the CD
Rate determined as of such CD Rate Interest Determination Date will be the
CD Rate in effect on such CD Rate Interest Determination Date.
CMT RATE. If an Interest Rate Basis for this Note is specified on the
face hereof as the CMT Rate, the CMT Rate shall be determined as of the
applicable Interest Determination Date (a "CMT Rate Interest Determination
Date") as the rate displayed on the Designated CMT Telerate Page (as
defined below) under the caption "...Treasury Constant Maturities...Federal
Reserve Board Release H.15...Mondays Approximately 3:45 P.M.", under the
column for the Designated CMT Maturity Index (as defined below) for (i) if
the Designated CMT Telerate Page is 7055, the rate on such CMT Rate
Interest Determination Date and (ii) if the Designated CMT Telerate Page is
7052, the weekly or the monthly average, as applicable for the week or
month, as applicable, ended immediately preceding the week or month, as
applicable, in which the related CMT Rate Interest Determination Date
occurs. If such rate is no longer displayed on the relevant page or is not
displayed by 3:00 P.M., New York City time, on the related Calculation
Date, then the CMT Rate for such CMT Rate Interest Determination Date will
be such treasury constant maturity rate for the Designated CMT Maturity
Index as published in the relevant H.15(519). If such rate is no longer
published or is not published by 3:00 P.M., New York City time, on the
related Calculation Date, then the CMT Rate on such CMT Rate Interest
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) for the CMT Rate Interest Determination Date
with respect to such Interest Reset Date as may then be published by either
the Board of Governors of the Federal Reserve System or the United States
Department of the Treasury that the Calculation Agent determines to be
comparable to the rate formerly displayed on the Designated CMT Telerate
Page and published in the relevant H.15(519). If such information is not
provided by 3:00 P.M., New York City time, on the related Calculation Date,
then the CMT Rate on the CMT Rate Interest Determination Date will be
calculated by the Calculation Agent and will be a yield to maturity, based
on the arithmetic mean of the secondary market closing offer side prices as
of approximately 3:30 P.M., New York City time, on such CMT Rate Interest
Determination Date reported, according to their written records, by three
leading primary United States government securities dealers (each, a
"Reference Dealer") in The City of New York selected by the Calculation
Agent (from five such Reference Dealers selected by the Calculation Agent
after consultation with the Issuer and eliminating the highest quotation
(or, in the event of quotation equality, one of the highest) and the lowest
quotation (or, in the event of quotation equality, one of the lowest)), for
the most recently issued direct noncallable fixed rate obligations of the
United States ("Treasury Notes") with an original maturity of approximately
the Designated CMT Maturity Index and a remaining term to maturity of not
less than such Designated CMT Maturity Index minus one year. If the
Calculation Agent is unable to obtain three such Treasury Note quotations,
the CMT Rate on such CMT Rate Interest Determination Date will be
calculated by the Calculation Agent and will be a yield to maturity based
on the arithmetic mean of the secondary market closing offer side prices as
of approximately 3:30 P.M., New York City time, on such CMT Rate Interest
Determination Date of three Reference Dealers in The City of New York (from
five such Reference Dealers selected by the Calculation Agent after
consultation with the Issuer and eliminating the highest quotation (or, in
the event of quotation equality, one of the highest) and the lowest
quotation (or, in the event of quotation equality, one of the lowest)), for
Treasury Notes with an original maturity of the number of years that is the
next highest to the Designated CMT Maturity Index and a remaining term to
maturity closest to the Designated CMT Maturity Index and in an amount of
at least U.S. $100 million. If three or four (and not five) of such
Reference Dealers are quoting as described above, then the CMT Rate will be
based on the arithmetic mean of the offer prices obtained and neither the
highest nor the lowest of such quotes will be eliminated; PROVIDED,
HOWEVER, that if fewer than three Reference Dealers selected by the
Calculation Agent are quoting as mentioned herein, the CMT Rate determined
as of such CMT Rate Interest Determination Date will be the CMT Rate in
effect on such CMT Rate Interest Determination Date. If two Treasury Notes
with an original maturity as described in the second preceding sentence
have remaining terms to maturity equally close to the Designated CMT
Maturity Index, the Calculation Agent will obtain from five Reference
Dealers quotations for the Treasury Note with the shorter remaining term to
maturity.
"Designated CMT Telerate Page" means the display on the Dow Xxxxx
Telerate Service (or any successor service) on the page specified on the
face hereof (or any other page as may replace such page on that service for
the purpose of displaying Treasury Constant Maturities as reported in
H.15(519)) for the purpose of displaying Treasury Constant Maturities as
reported in H.15(519). If no such page is specified on the face hereof,
the Designated CMT Telerate Page shall be 7052, for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity
of the United States Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or
30 years) specified on the face hereof with respect to which the CMT Rate
will be calculated. If no such maturity is specified on the face hereof,
the Designated CMT Maturity Index shall be 2 years.
COMMERCIAL PAPER RATE. If an Interest Rate Basis for this Note is
specified on the face hereof as the Commercial Paper Rate, the Commercial
Paper Rate shall be determined as of the applicable Interest Determination
Date (a "Commercial Paper Rate Interest Determination Date") as the Money
Market Yield (as defined below) on such date of the rate for commercial
paper having the Index Maturity as published in H.15(519) under the heading
"Commercial Paper." In the event that such rate is not published by 3:00
P.M., New York City time, on the applicable Calculation Date, then the
Commercial Paper Rate on such Commercial Paper Rate Interest Determination
Date will be the Money Market Yield of the rate for commercial paper having
the Index Maturity as published in Composite Quotations under the heading
"Commercial Paper" (with an Index Maturity of one month or three months
being deemed to be equivalent to an Index Maturity of 30 days or 90 days,
respectively). If such rate is not yet published in either H.15(519) or
Composite Quotations by 3:00 P.M., New York City time, on such Calculation
Date, then the Commercial Paper Rate on such Commercial Paper Rate Interest
Determination Date will be calculated by the Calculation Agent and shall be
the Money Market Yield of the arithmetic mean of the offered rates at
approximately 11:00 A.M., New York City time, on such Commercial Paper Rate
Interest Determination Date of three leading dealers of commercial paper in
The City of New York selected by the Calculation Agent after consultation
with the Issuer for commercial paper having the Index Maturity placed for
an industrial issuer whose bond rating is "AA", or the equivalent from a
nationally recognized statistical rating organization; PROVIDED, HOWEVER,
that if the dealers so selected by the Calculation Agent are not quoting as
mentioned in this sentence, the Commercial Paper Rate determined as of such
Commercial Paper Rate Interest Determination Date will be the Commercial
Paper Rate in effect on such Commercial Paper Rate Interest Determination
Date.
"Money Market Yield" means a yield (expressed as a percentage)
calculated in accordance with the following formula:
------D x 360------
Money Market Yield = x 100
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper
quoted on a bank discount basis and expressed as a decimal, and "M" refers
to the actual number of days in the Interest Period for which interest is
being calculated.
ELEVENTH DISTRICT COST OF FUNDS RATE. If an Interest Rate Basis for
this Note is specified on the face hereof as the Eleventh District Cost of
Funds Rate, the Eleventh District Cost of Funds Rate shall be determined as
of the applicable Interest Determination Date (an "Eleventh District Cost
of Funds Rate Interest Determination Date") as the rate equal to the
monthly weighted average cost of funds for the calendar month immediately
preceding the month in which such Eleventh District Cost of Funds Rate
Interest Determination Date falls, as set forth under the caption "11th
District" on Telerate Page 7058 as of 11:00 A.M., San Francisco time, on
such Eleventh District Cost of Funds Rate Interest Determination Date. If
such rate does not appear on Telerate Page 7058 on such Eleventh District
Cost of Funds Rate Interest Determination Date, then the Eleventh District
Cost of Funds Rate on such Eleventh District Cost of Funds Rate Interest
Determination Date shall be the monthly weighted average cost of funds paid
by member institutions of the Eleventh Federal Home Loan Bank District that
was most recently announced (the "Index") by the FHLB of San Francisco as
such cost of funds for the calendar month immediately preceding such
Eleventh District Cost of Funds Rate Interest Determination Date. If the
FHLB of San Francisco fails to announce the Index on or prior to such
Eleventh District Cost of Funds Rate Interest Determination Date for the
calendar month immediately preceding such Eleventh District Cost of Funds
Rate Interest Determination Date, the Eleventh District Cost of Funds Rate
determined as of such Eleventh District Cost of Funds Rate Interest
Determination Date will be the Eleventh District Cost of Funds Rate in
effect on such Eleventh District Cost of Funds Rate Interest Determination
Date.
FEDERAL FUNDS RATE. If an Interest Rate Basis for this Note is
specified on the face hereof as the Federal Funds Rate, the Federal Funds
Rate shall be determined as of the applicable Interest Determination Date
(a "Federal Funds Rate Interest Determination Date") as the rate on such
date for United States dollar federal funds as published in H.15(519) under
the heading "Federal Funds (Effective)" or, if not published by 3:00 P.M.,
New York City time, on the Calculation Date, the rate on such Federal Funds
Rate Interest Determination Date as published in Composite Quotations under
the heading "Federal Funds/Effective Rate". If such rate is not published
in either H.15(519) or Composite Quotations by 3:00 P.M., New York City
time, on the related Calculation Date, then the Federal Funds Rate on such
Federal Funds Interest Determination Date shall be calculated by the
Calculation Agent and will be the arithmetic mean of the rates for the last
transaction in overnight United States dollar federal funds arranged by
three leading brokers of federal funds transactions in The City of New York
selected by the Calculation Agent after consultation with the Issuer, prior
to 9:00 A.M., New York City time, on such Federal Funds Rate Interest
Determination Date; PROVIDED, HOWEVER, that if the brokers so selected by
the Calculation Agent are not quoting as mentioned in this sentence, the
Federal Funds Rate determined as of such Federal Funds Rate Interest
Determination Date will be the Federal Funds Rate in effect on such Federal
Funds Rate Interest Determination Date.
LIBOR. If an Interest Rate Basis for this Note is specified on the
face hereof as LIBOR, LIBOR shall be determined by the Calculation Agent as
of the applicable Interest Determination Date (a "LIBOR Interest
Determination Date") in accordance with the following provisions:
(i) if (a) "LIBOR Reuters" is specified on the face hereof, the
arithmetic mean of the offered rates (unless the Designated LIBOR Page (as
defined below) by its terms provides only for a single rate, in which case
such single rate will be used) for deposits in the Designated LIBOR
Currency having the Index Maturity, commencing on the applicable Interest
Reset Date, that appear (or, if only a single rate is required as
aforesaid, appears) on the Designated LIBOR Page (as defined below) as of
11:00 A.M., London time, on such LIBOR Interest Determination Date, or (b)
"LIBOR Telerate" is specified on the face hereof, or if neither "LIBOR
Reuters" nor "LIBOR Telerate" is specified on the face hereof as the method
for calculating LIBOR, the rate for deposits in the Designated LIBOR
Currency having the Index Maturity, commencing on the applicable Interest
Reset Date, that appears on the Designated LIBOR Page as of 11:00 A.M.,
London time, on such LIBOR Interest Determination Date. If fewer than two
such offered rates appear, or if no such rate appears, as applicable, LIBOR
on such LIBOR Interest Determination Date shall be determined in accordance
with the provisions described in clause (ii) below.
(ii) With respect to a LIBOR Interest Determination Date on which
fewer than two offered rates appear, or no rate appears, as the case may
be, on the Designated LIBOR Page as specified in clause (i) above, the
Calculation Agent shall request the principal London offices of each of
four major reference banks in the London interbank market, as selected by
the Calculation Agent after consultation with the Issuer to provide the
Calculation Agent with its offered quotation for deposits in the Designated
LIBOR Currency for the period of the Index Maturity, commencing on the
applicable Interest Reset Date, to prime banks in the London interbank
market at approximately 11:00 A.M., London time, on such LIBOR Interest
Determination Date and in a principal amount that is representative for a
single transaction in the Designated LIBOR Currency in such market at such
time. If at least two such quotations are so provided, then LIBOR on such
LIBOR Interest Determination Date will be the arithmetic mean of such
quotations. If fewer than two such quotations are so provided, then LIBOR
on such LIBOR Interest Determination Date will be the arithmetic mean of
the rates quoted at approximately 11:00 A.M., in the applicable Principal
Financial Center, on such LIBOR Interest Determination Date by three major
banks in such Principal Financial Center selected by the Calculation Agent
after consultation with the Issuer for loans in the Designated LIBOR
Currency to leading European banks, having the Index Maturity and in a
principal amount that is representative for a single transaction in such
Designated LIBOR Currency in such market at such time; PROVIDED, HOWEVER,
that if the banks so selected by the Calculation Agent are not quoting as
mentioned in this sentence, LIBOR determined as of such LIBOR Interest
Determination Date shall be LIBOR in effect on such LIBOR Interest
Determination Date.
"Designated LIBOR Currency" means the currency or composite currency
specified on the face hereof as to which LIBOR shall be calculated. If no
such currency or composite currency is specified on the face hereof, the
Designated LIBOR Currency shall be United States dollars.
"Designated LIBOR Page" means (a) if "LIBOR Reuters" is specified on
the face hereof, the display on the Reuters Monitor Money Rates Service (or
any successor service) for the purpose of displaying the London interbank
rates of major banks for the Designated LIBOR Currency, or (b) if "LIBOR
Telerate" is specified on the face hereof or neither "LIBOR Reuters" nor
"LIBOR Telerate" is specified on the face hereof as the method for
calculating LIBOR, the display on the Dow Xxxxx Telerate Service (or any
successor service) for the purpose of displaying the London interbank rates
of major banks for the Designated LIBOR Currency.
PRIME RATE. If an Interest Rate Basis for this Note is specified on
the face hereto as the Prime Rate, the Prime Rate shall be determined as of
the applicable Interest Determination Date (a "Prime Rate Interest
Determination Date") as the rate on such date as such rate is published in
H.15(519) under the heading "Bank Prime Loan". If such rate is not
published prior to 3:00 P.M., New York City time, on the related
Calculation Date, then the Prime Rate shall be the arithmetic mean of the
rates of interest publicly announced by each bank that appears on the
Reuters Screen USPRIME1 Page (as defined below) as such bank's prime rate
or base lending rate as in effect for such Prime Rate Interest Page
Determination Date. If fewer than four such rates appear on the Reuters
Screen USPRIME1 for such Prime Rate Interest Determination Date, the Prime
Rate shall be the arithmetic mean of the prime rates quoted on the basis of
the actual number of days in the year divided by a 360-day year as of the
close of business on such Prime Rate Interest Determination Date by four
major money center banks in The City of New York selected by the
Calculation Agent after consultation with the Issuer. If fewer than four
such quotations are so provided, the Prime Rate shall be the arithmetic
mean of four prime rates quoted on the basis of the actual number of days
in the year divided by a 360-day year as of the close of business on such
Prime Rate Interest Determination Date as furnished in The City of New York
by the major money center banks, if any, that have provided such quotations
and by as many substitute banks or trust companies necessary in order to
obtain such four prime rate quotations, provided such substitute banks or
trust companies are organized and doing business under the laws of the
United States, or any State thereof, each having total equity capital of at
least U.S. $500 million and being subject to supervision or examination by
Federal or State authority, selected by the Calculation Agent after
consultation with the Issuer to provide such rate or rates; PROVIDED,
HOWEVER, that if the banks or trust companies so selected by the
Calculation Agent are not quoting as mentioned in this sentence, the Prime
Rate determined as of such Prime Rate Interest Determination Date will be
the Prime Rate in effect on such Prime Rate Interest Determination Date.
"Reuters Screen USPRIME1 Page" means the display designated as page
"USPRIME1" on the Reuters Monitor Money Rates Service (or such other page
as may replace the USPRIME1 page on that service for the purpose of
displaying prime rates or base lending rates of major United States banks).
TREASURY RATE. If an Interest Rate Basis for this Note is specified
on the face hereof as the Treasury Rate, the Treasury Rate shall be
determined as of the applicable Interest Determination Date (a "Treasury
Rate Interest Determination Date") as the rate from the auction held on
such Treasury Rate Interest Determination Date (the "Auction") of direct
obligations of the United States ("Treasury Bills") having the Index
Maturity, as such rate is published in H.15(519) under the heading
"Treasury bills-auction average (investment)" or, if not published by 3:00
P.M., New York City time, on the related Calculation Date, the auction
average rate of such Treasury Bills (expressed as a bond equivalent on the
basis of a year of 365 or 366 days, as applicable, and applied on a daily
basis) as otherwise announced by the United States Department of the
Treasury. In the event that the results of the Auction of Treasury Bills
having the Index Maturity are not reported as provided above by 3:00 P.M.,
New York City time, on such Calculation Date, or if no such Auction is
held, then the Treasury Rate shall be calculated by the Calculation Agent
and shall be a yield to maturity (expressed as a bond equivalent on the
basis of a year of 365 or 366 days, as applicable, and applied on a daily
basis) of the arithmetic mean of the secondary market bid rates, as of
approximately 3:30 P.M., New York City time, on such Treasury Rate Interest
Determination Date, of three leading primary United States government
securities dealers selected by the Calculation Agent after consultation
with the Issuer, for the issue of Treasury Bills with a remaining maturity
closest to the Index Maturity; PROVIDED, HOWEVER, that if the dealers so
selected by the Calculation Agent are not quoting as mentioned in this
sentence, the Treasury Rate determined as of such Treasury Rate Interest
Determination Date will be the Treasury Rate in effect on such Treasury
Rate Interest Determination Date.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, in each case as specified on the face hereof. The
interest rate on this Note will in no event be higher than the maximum rate
permitted by New York law, as the same may be modified by United States law
of general application.
The Calculation Agent shall calculate the interest rate hereon on or
before each Calculation Date. The "Calculation Date", if applicable,
pertaining to any Interest Determination Date shall be the earlier of (i)
the tenth calendar day after such Interest Determination Date or, if such
day is not a Business Day, the next succeeding Business Day or (ii) the
Business Day immediately preceding the applicable Interest Payment Date or
the Maturity Date, as the case may be. At the request of the Holder
hereof, the Calculation Agent will provide to the Holder hereof the
interest rate hereon then in effect and, if determined, the interest rate
that will become effective as a result of a determination made for the next
succeeding Interest Reset Date.
Accrued interest hereon shall be an amount calculated by multiplying
the principal amount hereof by an accrued interest factor. Such accrued
interest factor shall be computed by adding the interest factor calculated
for each day in the applicable Interest Period. Unless otherwise specified
as the Day Count Convention on the face hereof, the interest factor for
each such date shall be computed by dividing the interest rate applicable
to such day by 360 if the CD Rate, the Commercial Paper Rate, the Eleventh
District Cost of Funds Rate, the Federal Funds Rate, LIBOR or the Prime
Rate is an applicable Interest Rate Basis or by the actual number of days
in the year if the CMT Rate or the Treasury Rate is an applicable Interest
Rate Basis. Unless otherwise specified as the Day Count Convention on the
face hereof, the interest factor for this Note, if the interest rate is
calculated with reference to two or more Interest Rate Bases, shall be
calculated in each period in the same manner as if only the Applicable
Interest Rate Basis specified on the face hereof applied.
All percentages resulting from any calculation on this Note shall be
rounded to the nearest one hundred-thousandth of a percentage point, with
five one-millionths of a percentage point rounded upwards, and all amounts
used in or resulting from such calculation on this Note shall be rounded,
in the case of United States dollars, to the nearest cent or, in the case
of a Specified Currency other than United States dollars, to the nearest
unit (with one-half cent or unit being rounded upwards).
If an Event of Default, shall occur and be continuing, the principal
amount of the Notes may be declared accelerated and thereupon become due
and payable in the manner, with the effect, and subject to the conditions
provided in the Indenture.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Notes or (ii) certain covenants and Events of Default
with respect to the Notes, in each case upon compliance with certain
conditions set forth therein, which provisions apply to the Notes.
The Indenture contains provisions permitting the Issuer, the Guarantor
and the Trustee, with the consent of the Holders of not less than a
majority of the aggregate principal amount of the Securities at the time
Outstanding of all series to be affected (voting as one class), evidenced
as provided in the Indenture, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or modifying
in any manner the rights of the Holders of the Securities of each series;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security so affected, (i) change
the Stated Maturity of the principal of, or premium, (if any) or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate or amount of interest thereon or any
premium payable upon the redemption or acceleration thereof, or adversely
affect any right of repayment at the option of the Holder of any Security,
or change any Place of Payment where, or the currency or currencies,
currency unit or units or composite currency or currencies in which, the
principal of any Security or any premium or interest thereon is payable, or
impair the right to institute suit for the enforcement of any such payment
on or after the Stated Maturity thereof, or (ii) reduce the aforesaid
percentage of Securities the Holders of which are required to consent to
any such supplemental indenture, or (iii) reduce the percentage of
Securities the Holders of which are required to consent to any waiver of
compliance with certain provisions of the Indenture or any waiver of
certain defaults and consequences thereunder or to reduce the quorum or
voting requirements set forth in the Indenture, or (iv) effect certain
other changes to the Indenture or any supplemental indenture or in the
rights of Holders of the Securities. The Indenture also permits the
Holders of a majority in principal amount of the Outstanding Securities of
any series (or, in the case of certain defaults or Events of Defaults, all
series of Securities), on behalf of the Holders of all the Securities of
such series (or all of the Securities, as the case may be), to waive
compliance by the Issuer with certain provisions of the Indenture and
certain past defaults or Events of Default under the Indenture and their
consequences, prior to any declaration accelerating the maturity of such
Securities, or subject to certain conditions, rescind a declaration of
acceleration and its consequences with respect to such Securities. Any
such consent or waiver by the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and other
Notes issued upon the registration of transfer hereof or in exchange hereof
or in lieu hereof, irrespective of whether or not notation of such consent
or waiver is made upon this Note or such other Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which
is absolute and unconditional, to pay principal, premium, if any, and
interest in respect of this Note at the times, places and rate or formula,
and in the coin or currency, herein prescribed.
Notwithstanding any other provision of the Indenture to the contrary,
no recourse shall be had, whether by levy or execution or otherwise, for
the payment of any sums due under the Securities, including, without
limitation, the principal of, premium, if any, or interest payable under
the Securities, or for the payment or performance of any obligation under,
or for any claim based on, the Indenture or otherwise in respect thereof,
against any partner of the Issuer, whether limited or general, including SD
Property Group, Inc., or such partner's assets or against any principal,
shareholder, officer, director, trustee or employee of such partner. It is
expressly understood that the sole remedies under the Securities and the
Indenture or under any other document with respect to the Securities,
against such parties with respect to such amounts, obligations or claims
shall be against the Issuer.
As provided in the Indenture and subject to certain limitations
therein and herein set forth, the transfer of this Note is registrable in
the Security Register of the Issuer upon surrender of this Note for
registration of transfer at the office or agency of the Issuer in any place
where the principal hereof and any premium or interest hereon are payable,
duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Issuer and the Security Registrar duly executed
by, the Holder hereof or by his attorney duly authorized in writing, and
thereupon one or more new Notes, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated
transferee or transferees.
As provided in the Indenture and subject to certain limitations
therein and herein set forth, this Note is exchangeable for a like
aggregate principal amount of Notes of different authorized denominations
at the office or agency of the Trustee in the Borough of Manhattan, the
City of New York, in the manner and subject to the limitations provided in
the Indenture but otherwise having the same terms and conditions, as
requested by the Holder hereof surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the 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 Note for registration of transfer,
the Issuer, the Guarantor, the Trustee and any agent of the Issuer, the
Guarantor or the Trustee may treat the Holder in whose name this Note is
registered as the absolute owner thereof for all purposes, whether or not
this Note be overdue and notwithstanding any notation of ownership or other
writing hereon, and neither the Issuer, the Guarantor, the Trustee nor any
such agent shall be affected by notice to the contrary.
The Indenture and this Note, including the validity hereof, shall be
governed by and construed in accordance with the laws of the State of New
York and for all purposes shall be construed in accordance with the laws of
such State, except as may otherwise be required by mandatory provisions of
law.
Capitalized terms used herein which are not otherwise defined shall
have the respective meanings assigned to them in the Indenture and all
indentures supplemental thereto relating to this Note.
FORM OF NOTATION ON SECURITY RELATING TO GUARANTEE
GUARANTEE
The undersigned, as Guarantor (the "Guarantor") under the
Indenture, dated as of November 26, 1996, duly executed and delivered by
Xxxxx XxXxxxxxx Group, L.P. (the "Issuer") and the Guarantor, to The Chase
Manhattan Bank, as Trustee (as the same may be amended or supplemented from
time to time, the "Indenture"), and referred to in the Security upon which
this notation is endorsed (the "Security") (i) has unconditionally
guaranteed as a primary obligor and not a surety (the "Guarantee") (a) the
payment of principal of, premium, if any, interest on (including post-
petition interest in any proceeding under any federal or state law or
regulation relating to any Bankruptcy Law whether or not an allowed claim
in such proceeding), and any other amounts payable with respect to the
Security, and (b) all other monetary obligations payable by the Issuer
under the Indenture and the Security; when and as the same shall become due
and payable, whether at Maturity, on redemption, by declaration of
acceleration or otherwise (all of the foregoing being hereinafter
collectively called the "Guaranteed Obligations"), in accordance with the
terms of the Security and the Indenture and (ii) has agreed to pay all
costs and expenses (including reasonable attorneys' fees) incurred by the
Trustee or any Holder in enforcing any rights under Article 17 of the
Indenture.
The obligations of the Guarantor to the Holders of the Security
pursuant to this Guarantee and the Indenture are expressly set forth in
Article 17 of the Indenture and reference is hereby made to such Indenture
for the precise terms of this Guarantee.
This is a continuing Guarantee and shall remain in full force and
effect until the termination thereof under Section 1706 of the Indenture or
until the principal of and interest on the Security and all other
Guaranteed Obligations shall have been paid in full. If at any time any
payment of the principal of, or interest on, the Security or any other
payment in respect of any Guaranteed Obligation is rescinded or must be
otherwise restored or returned upon the insolvency, bankruptcy or
reorganization of the Issuer or otherwise, the Guarantor's obligations
hereunder and under the Guarantee with respect to such payment shall be
reinstated as though such payment had been due but not made at such time,
and Article 17 of the Indenture, to the extent theretofore discharged,
shall be reinstated in full force and effect.
Pursuant to Section 1706 of the Indenture, the obligations of the
Guarantor under the Indenture shall terminate at such time the Guarantor
merges or consolidates with the Issuer or at such other time as the Issuer
acquires all of the assets and partnership interests of the Guarantor.
Notwithstanding any other provision of the Indenture to the
contrary, no recourse shall be had, whether by levy or execution or
otherwise, for the payment of any sums due under the Security, including,
without limitation, the principal of, premium, if any, or interest payable
under the Security, or for the payment or performance of any obligation
under, or for any claim based on, the Indenture or otherwise in respect
thereof, against any partner of the Guarantor, whether limited or general,
including Xxxxx XxXxxxxxx Group, Inc., or such partner's assets or against
any principal, shareholder, officer, director, trustee or employee of such
partner. It is expressly understood that the sole remedies under the
Guarantee and the Indenture or under any other document with respect to the
Guaranteed Obligations against such parties with respect to such amounts,
obligations or claims shall be against the Guarantor.
This Guarantee shall not be valid or become obligatory for any
purpose with respect to the Security until the certificate of
authentication on such Security shall have been signed by or on behalf of
the Trustee.
THE TERMS OF ARTICLE 17 OF THE INDENTURE ARE INCORPORATED HEREIN
BY REFERENCE.
Capitalized terms used herein have the same meanings given in the
Indenture unless otherwise indicated.
SIMON PROPERTY GROUP, L.P.
as Guarantor
By: Xxxxx XxXxxxxxx Group, Inc.,
its sole general partner
By: ______________________________
Name:
Title:
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in commonUNIF GIFT MIN ACT - ______
Custodian _____
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants withunder Uniform Gifts to Minors
right of survivorship
and not as tenants Act_____________________
in common (State)
Additional abbreviations may also be used though not in the above
list.
__________________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
| |
|__________________________|_____________________________________
________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
______________________________________________________ this Note and all
rights thereunder hereby irrevocably constituting and appointing
________________________________________________________________
Attorney to transfer this Note on the books of the Trustee, with full power
of substitution in the premises.
Dated:_____________________ __________________________________
___________________________________
Notice: The signature(s) on this Assignment
must correspond with the name(s) as written
upon the face of this Note in every
particular, without alteration or enlargement
or any change whatsoever.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Issuer to repay this Note (or portion hereof specified below) pursuant to
its terms at a price equal to 100% of the principal amount to be repaid,
together with unpaid interest accrued hereon to the Repayment Date, to the
undersigned, at
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its corporate
trust office in the Borough of Manhattan, The City of New York, not more
than 60 nor less than 30 calendar days prior to the Repayment Date, this
Note with this "Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of U.S.$1,000 (or, if
the Specified Currency is other than United States dollars, the minimum
Authorized Denomination specified on the face hereof)) which the Holder
elects to have repaid and specify the denomination or denominations (which
shall be an Authorized Denomination) of the Notes to be issued to the
Holder for the portion of this Note not being repaid (in the absence of any
such specification, one such Note will be issued for the portion not being
repaid).
Principal Amount
to be Repaid: $
Notice: The signature(s) on
Date: this Option to Elect Repayment must
correspond with the
name(s) as written upon the face of this
Note in every
particular, without alteration
or enlargement or any change
whatsoever.
