Exhibit 4.1


 






 


THIRD SUPPLEMENTAL INDENTURE




Dated as of [              ],
2009




to




INDENTURE




Dated as of March 29, 1995


 


Between


 


CENTRO NP LLC




and




U.S. BANK TRUST NATIONAL ASSOCIATION, as Trustee


 










 


Senior Debt Securities












 





















 


THIRD SUPPLEMENTAL INDENTURE dated as of [                ],
2009 (this “Supplemental Indenture”) by and among
Centro NP LLC, a Maryland limited
liability company (the “Company”),
as successor to New Plan Excel Realty Trust, Inc., a Maryland corporation,
and U.S. Bank Trust National Association (as successor to State Street
Bank and Trust Company, as successor to The First National Bank of Boston), as
trustee under the Indenture referred to below (the “Trustee”).


 


W I T N E S S E T H


 


WHEREAS, the Company has heretofore executed
and delivered to the Trustee an indenture, dated as of March 29, 1995 (as
heretofore amended or supplemented, the “Indenture”), providing for the issuance of
senior debt securities;


 


WHEREAS, the Indenture provides that the
Company may enter into a supplemental indenture with the consent of the Holders
of not less than a majority in principal amount of all outstanding securities
affected by such supplemental indenture for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of modifying in any manner the rights of Holders of Securities
and any related coupons under the Indenture, subject to certain limitations set
forth in the Indenture not applicable to the matters addressed by this Supplemental
Indenture;


 


WHEREAS, the Company has received and
delivered or caused to be delivered to the Trustee the consents of the Holders
of at least a majority in principal amount of all outstanding Securities to the
amendments provided for in this Supplemental Indenture;


 


WHEREAS, the Company has been authorized by or
pursuant to a resolution of its sole member to enter into this Supplemental
Indenture;


 


WHEREAS, the Company has requested that the
Trustee join in the execution and delivery of this Supplemental Indenture; and


 


WHEREAS, all other acts and proceedings
required by law, by the Indenture and by the organizational documents of the
Company to make this Supplemental Indenture a valid and binding agreement for
the purposes expressed herein, in accordance with its terms, have been duly
done and performed.


 


NOW, THEREFORE, in consideration of the
premises and the covenants and agreements contained herein, and for other good
and valuable consideration the receipt of which is hereby acknowledged, the Company
and the Trustee hereby agree as follows:


 


ARTICLE 1


 


Section 1.01       Capitalized Terms.  Capitalized terms used in this Supplemental
Indenture and not otherwise defined herein shall have the meanings assigned to
such terms in the Indenture.


 





















 


ARTICLE 2


 


AMENDMENTS


 


Section 2.01       Amendment of Certain Definitions in Article 1
of the Indenture.  The definition of “Consolidated
Income Available for Debt Service” in Section 101 is eliminated in its
entirety and replaced with the following:


 


“Consolidated Income
Available for Debt Service” for any period, means Consolidated Net Income of
the Company and its Subsidiaries plus amounts which have been deducted for (a) interest
on Debt of the Company and its Subsidiaries, (b) provision for taxes of
the Company and its Subsidiaries based on income, (c) amortization of debt
discount, (d) property depreciation and amortization, (e) the effect
of any non-cash charge resulting from a change in accounting principles in
determining Consolidated Net Income for such period and (f) other non-cash
items, and less amounts which have been added in determining Consolidated Net
Income for such period for other non-cash items.


 


Section 2.02       Insertion of a New Subsection to Section 5.01
of Article 5.  Section 5.01
of Article 5 is hereby amended to provide for the insertion of a new
subsection (9) to read as follows:


 


(9)           default
in the payment of the Put Right Repurchase Price, when it becomes due and
payable as set forth in Section 1013 hereto.


 


Section 2.03           Amendment of
Certain Covenants in Article 10 of the Indenture.


 


(a)        Section 1004(d) of
the Indenture is replaced in its entirety with the following:


 


Prior to the Put Right
Repurchase Date, the Company will at all times maintain an Unencumbered Total
Asset Value in an amount not less than 125% of the aggregate principal amount
of all outstanding Debt of the Company and its Subsidiaries that is
unsecured.  On and after the Put Right
Repurchase Date, the Company will at all times maintain an Unencumbered Total
Asset Value in an amount not less than 100% of the aggregate principal amount
of all outstanding Debt of the Company and its Subsidiaries that is unsecured.


 


(b)        Section 1004
is amended to provide for the insertion of a new Section 1004(f) to
read as follows:


 


In addition to the
limitations set forth in subsections (a), (b), (c) and (d) of this Section 1004,
prior to April 15, 2011, the Company will not, and will not permit any
Subsidiary to, incur any Debt if, immediately after giving effect to the
incurrence of such additional Debt and the application of the proceeds thereof,
the aggregate principal amount of all outstanding Debt of the Company and its
Subsidiaries on a consolidated basis determined in accordance with GAAP is
greater than $1,869 million.


 


(c)        Section 1004
is amended to provide for the insertion of a new Section 1004(g) to
read as follows:


 


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For the purpose of determining
compliance with this Section 1004, any election by the Company to measure
an item of Debt using fair value (as permitted by Financial Accounting
Standards Board Statement No. 159 or any similar accounting standard)
shall be disregarded and such determination shall be made instead using the
outstanding principal amount of such Debt.


 


(d)        Section 1009
of the Indenture is replaced in its entirety with the following:


 


Provision of Financial
Information. If the Company is required to file annual and
quarterly reports and other documents with the Commission pursuant to Section 13
or 15(d) of the Securities Exchange Act of 1934, the Company will (i) file
such reports and documents with the Commission on or prior to the respective
dates by which the Company is required to file such documents, (ii) within
15 days after being required to file the same with the Commission, deliver such
reports and documents to the Trustee, and (iii) within 15 days after being
required to file the same with the Commission, transmit a copy of each such
annual and quarterly report (exclusive of exhibits) by mail to all Holders, as
their names and addresses appear in the Security Register, without cost to such
Holders. If the Company is not required to file annual and quarterly reports
and other documents with the Commission pursuant to either of such provisions,
the Company will, within 15 days of the date by which the Company would have
been required to file the same with the Commission if it were so required, (i) deliver
to the Trustee (A) all quarterly and annual financial information
(including exhibits) that would be required to be contained in a filing with
the Commission on Forms 10-Q and 10-K if the Company were required to file such
Forms, including a “Management’s Discussion and Analysis of Financial Condition
and Results of Operations” that describes the financial condition and results
of operations of the Company and its consolidated Subsidiaries and, with
respect to the annual information only, a report thereon by the Company’s
certified independent accountants and (B) all current reports that would
be required to be filed with the Commission on Form 8-K if the Company
were required to file such reports; provided, however, that such
information and reports may exclude any certifications, reports or other
information required to be a part of, or filed with, such reports pursuant to
the provisions of the Sarbanes Oxley Act of 2002 or the rules and
regulations of the Commission thereunder, (ii) transmit a copy of each
document required to be delivered to the Trustee (exclusive of exhibits) by
mail to all Holders, as their names and addresses appear in the Security
Register, without cost to such Holders, (iii) post a copy of each document
required to be delivered to the Trustee (including exhibits) to the Company’s or
its Affiliate’s website and shall promptly after such posting issue a press
release indicating that such documents have been posted with reference to the
website address such documents have been posted on and (iv) use
commercially reasonable efforts to post a copy of each document required to be
delivered to the Trustee (including exhibits) to the Company’s “Company News” page and
“Company Filings” page on www.bloomberg.com.  So long as the Company continues to hold an
equity interest therein, the Company shall include in the information delivered
to the Trustee and provided to Holders, the audited annual financial statements
and the unaudited quarterly financial statements of Centro NP Residual Holding
LLC.


 


Section 2.04                                Insertion of New
Sections to Article 10.


 


(a)        Article 10
is amended to provide for the insertion of a new Section 1013 to read as
follows:


 


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SECTION 1013.
Security Holder Repurchase Right.  (a) 
Each Holder of Securities shall have the right, at such Holder’s option, to
require the Company to repurchase all of such Holder’s Securities or any
portion thereof that is a multiple of $1,000 principal amount, for cash on January 15, 2014
(the “Put Right Repurchase Date”) at a repurchase price per Security equal to 100%
of the aggregate principal amount of the Securities being repurchased, together
with any accrued and unpaid interest up to, but not including, such Put Right
Repurchase Date (the “Put Right Repurchase Price”).


 


(b)  No later than 20 Business Days
prior to the Put Right Repurchase Date, the Company shall give notice of the
repurchase right under Section 1013 (a “Put Right Repurchase
Offer”) to all record Holders at
their addresses set forth in the Securities Register and to beneficial owners
as required by applicable law.  The Put
Right Repurchase Offer shall include a form of notice (the “Put Right Exercise Notice”)
to be completed by the Holder and returned to the Company in the event that the
Holder elects such repurchase right and shall briefly state, as applicable:


 


(i)      the
Put Right Repurchase Date;


 


(ii)     the
Put Right Repurchase Price;


 


(iii)    the
name and address of the Paying Agent;


 


(iv)    that
Securities must be surrendered to the Paying Agent to collect payment;


 


(v)     that
the Put Right Repurchase Price for any Security as to which a Put Right
Exercise Notice has been given and not withdrawn will be paid promptly
following the later of the Put Right Repurchase Date and the time of surrender
of such Security as described in subclause (iv) above;


 


(vi)    the
procedures the Holder must follow to exercise rights under this Section and
a brief description of those rights;


 


(vii)   the
procedures for withdrawing a Put Right Exercise Notice (including pursuant to
the terms of Section 1013(d));


 


(viii)  that,
unless the Company defaults in making payment on Securities for which a Put
Right Exercise Notice has been submitted, interest on the Securities in respect
of which a Put Right Exercise Notice has been delivered and not withdrawn will
cease to accrue on the Put Right Repurchase Date; and


 


(ix)    the CUSIP number of each
of the applicable series of Securities.


 


At the Company’s request, the Trustee shall
deliver the Put Right Repurchase Offer to Holders of Securities at the Company’s
expense; provided, however, that the Company makes such request at least three
Business Days (unless a shorter period shall be satisfactory to the Trustee)
prior to the date by which such Put Right Repurchase Offer must be delivered to
the Holders in accordance with this Section 1013(b); provided, further,
that the text of the Put Right Repurchase Offer shall be prepared by the
Company.


 


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A Holder may exercise its repurchase right as
specified in this Section 1013 upon delivery of a properly completed Put
Right Exercise Notice to the Paying Agent by the Holder at any time during the
period beginning at 9:00 a.m. (local time in The City of New York) on the
date that is 20 Business Days immediately preceding the relevant Put Right
Repurchase Date until the close of business on the Business Day immediately
preceding such Put Right Repurchase Date, stating:


 


(A)  if certificated, the certificate numbers of the Securities to
be delivered for repurchase;


 


(B)  the portion of the principal amount of the Securities to be
repurchased, which must be $1,000 or an integral multiple thereof; and


 


(C)  that the Securities are to be repurchased by the Company
pursuant to the applicable provisions of the Securities and this Indenture.


 


The delivery of such Security to the Paying
Agent prior to, on or after the Put Right Repurchase Date (together with all
necessary endorsements) at the offices of the Paying Agent, shall be a
condition to receipt by the Holder of the Put Right Repurchase Price therefor,
which shall be so paid pursuant to this Section 1013 only if the Security
so delivered to the Paying Agent shall conform in all respects to the
description thereof in the related Put Right Exercise Notice, as determined by
the Company.


 


The
Company shall repurchase from the Holder thereof, pursuant to this Section 1013,
a portion of a Security if the principal amount of such portion is $1,000 or an
integral multiple of $1,000.


 


Any repurchase by the Company contemplated
pursuant to the provisions of this Section 1013 shall be consummated by
the delivery of the consideration to be received by the Holder promptly
following the later of the Put Right Repurchase Date and the time of delivery
of the Security.


 


The Paying Agent shall promptly notify the
Company of the receipt by it of any Put Right Exercise Notice or written notice
of withdrawal thereof.


 


Any Security that is to be repurchased only
in part shall be surrendered to the Paying Agent (with, if the Company, Trustee
or Paying Agent so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company, the Trustee and Paying Agent duly
executed by the Holder thereof or his attorney duly authorized in writing), and
the Company shall execute, and the Trustee shall authenticate and make
available for delivery to the Holder of such Security without service charge, a
new Security or Securities, containing identical terms and conditions, each in
an authorized denomination in aggregate principal amount equal to and in
exchange for the unrepurchased portion of the principal of the Security so
surrendered.


 


(c)  Upon receipt by the Paying Agent of
the Put Right Exercise Notice, the Holder of the Security in respect of which
such Put Right Exercise Notice was given shall (unless such Put Right Exercise
Notice is withdrawn as specified in Section 1013(d)) thereafter be
entitled to receive solely the Put Right Repurchase Price with respect to such
Security. Such Put Right Repurchase Price shall be paid to such Holder, subject
to receipt of funds by the Paying Agent, promptly following the later of (x) the
Put Right Repurchase Date with respect to such Security (provided the conditions in Section 1013(a) have
been satisfied) and (y) the time of delivery of


 


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such Security to the Paying Agent by the
Holder thereof in the manner required by Section 1013(a).


 


(d)  A Put Right Exercise Notice may be
withdrawn by means of a written notice of withdrawal delivered to the office of
the Paying Agent at any time prior to the close of business on the Business Day
immediately preceding the Put Right Repurchase Date specifying:


 


(i)  if certificated Securities have been issued, the certificate
numbers of the withdrawn Securities,


 


(ii)  the principal amount of the Securities with respect to which
such notice of withdrawal is being submitted, and


 


(iii)  the principal amount, if any, of such Securities that
remains subject to the original Put Right Exercise Notice, which portion must
be in principal amounts of $1,000 or an integral multiple of $1,000;


 


provided,
however, that if
the Securities are not in certificated form, the notice must comply with
appropriate procedures of the applicable depositary.


 


A written notice of withdrawal of a Put Right
Exercise Notice shall be in the form set forth in the preceding paragraph.


 


Upon receipt of a written notice of
withdrawal, the Paying Agent shall promptly return to the Holders thereof any
Securities in respect of which a Put Right Exercise Notice has been withdrawn
in accordance with the provisions of Section 1013(d).


 


(e)  There shall be no repurchase of any
Securities pursuant to this Section 1013 if there has occurred (prior to,
on or after, as the case may be, the giving, by the Holders of such Securities,
of the required Put Right Exercise Notice) and is continuing an Event of
Default with respect to Securities (other than a default in the payment of the
Put Right Repurchase Price with respect to such Securities). The Paying Agent
will promptly return to the respective Holders thereof any Securities held by
it during the continuance of an Event of Default with respect to Securities
(other than a default in the payment of the Put Right Repurchase Price with
respect to such Securities), in which case, upon such return, the Put Right
Exercise Notice with respect thereto shall be deemed to have been withdrawn.


 


(f)  Prior to 11:00 a.m. (local
time in The City of New York) on the Put Right Repurchase Date, the Company
shall deposit with the Paying Agent an amount (in immediately available funds)
sufficient to pay the aggregate Put Right Repurchase Price of all the
Securities or portions thereof which are to be purchased as of the Put Right
Repurchase Date. The manner in which the deposit required by this Section 1013(f) is
made by the Company shall be at the option of the Company; provided  that
such deposit shall be made in a manner such that the Paying Agent shall have
immediately available funds on the Put Right Repurchase Date.


 


If the Paying Agent holds, in accordance with
the terms hereof, money sufficient to pay the Put Right Repurchase Price of any
Security, then, on the Put Right Repurchase Date, such Security


 


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will cease to be outstanding and the rights
of the Holder in respect thereof shall terminate (other than the right to
receive the Put Right Repurchase Price as aforesaid).


 


To the extent that the
aggregate amount of cash deposited by the Company pursuant to this Section 1013(f) exceeds
the aggregate Put Right Repurchase Price of the Securities or portions thereof
that the Company is obligated to purchase, then promptly after the Put Right
Repurchase Date the Paying Agent shall return any such excess cash to the
Company.


 


(b)        Article 10
is amended to provide for the insertion of a new Section 1014 to read as
follows:


 


SECTION 1014.  Transfer of Real Property.  Prior to the Put Right Repurchase Date,
neither the Company nor any Subsidiary shall sell or transfer any real property
(or any equity interest in any Person whose principal asset is real property)
or the right to receive the income or profits therefrom (i) to an
Affiliate of the Company that is not a Subsidiary or (ii) to any Person
that owns an equity interest in the Company. 
For the avoidance of doubt, the restrictions contained in this Section 1014
shall not apply to personal property (including cash and cash equivalents) of,
or income or profit from real property or otherwise received by, the Company
and its Subsidiaries.


 


ARTICLE 3


 


MISCELLANEOUS


 


Section 3.01       Relation
to Original Indenture.


 


This
Supplemental Indenture supplements the Indenture and shall be a part and
subject to all the terms thereof.  Except
as supplemented hereby, the Indenture and the Securities issued thereunder
shall continue in full force and effect.


 


Section 3.02       Concerning
the Trustee.


 


The
Trustee shall not be responsible for any recital herein as such recitals shall
be taken as statements of the Company, or the validity of the execution by the
Company of this Supplemental Indenture. 
The Trustee makes no representations as to the validity or sufficiency
of this Supplemental Indenture.


 


Section 3.03       Effect
of Headings.


 


The
Article and Section headings herein are for convenience of reference
only and shall not affect the construction hereof.


 


Section 3.04       Counterparts.


 


This
Supplemental Indenture may be executed in counterparts, each of which shall be
deemed an original, but all of which shall together constitute one and the same
instrument.


 


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Section 3.05       Governing
Law.


 


THIS
SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.


 


[Signature Page Follows]


 


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IN WITNESS WHEREOF, the parties have caused
this Supplemental Indenture to be duly executed as of the date first written
above.


 


	
   

  	
  CENTRO
  NP LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  U.S.
  BANK TRUST NATIONAL ASSOCIATION,

  
	
   

  	
  as
  Trustee,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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