Exhibit 4.1
THIRD SUPPLEMENTAL INDENTURE
DATED AS OF AUGUST 20, 2002
BETWEEN
CENTERPOINT PROPERTIES TRUST
AND
U.S. BANK TRUST NATIONAL ASSOCIATION, AS TRUSTEE
THIRD SUPPLEMENTAL INDENTURE, dated as of August 20, 2002 by and
between CENTERPOINT PROPERTIES TRUST, a Maryland real estate investment trust
(the "Company"), having its principal offices at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and U.S. BANK TRUST NATIONAL ASSOCIATION, a national banking
association organized under the laws of the United States of America, as trustee
(the "Trustee"), having its Corporate Trust Office at One Illinois Center, ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
RECITALS
WHEREAS, the Company executed and delivered its Indenture (the
"Original Indenture"), dated as of April 7, 1998, as supplemented by the First
Supplemental Indenture, dated as of April 7, 1998 (the "First Supplemental
Indenture") and the Second Supplemental Indenture dated as of October 23, 1998
(the "Second Supplemental Indenture"), to the Trustee to issue from time to time
for its lawful purposes debt securities evidencing its unsecured indebtedness.
WHEREAS, the Original Indenture provides that by means of a
supplemental indenture, the Company may create one or more series of its debt
securities.
WHEREAS, the Company intends by this Supplemental Indenture to create a
series of debt securities, in an aggregate principal amount not to exceed
$300,000,000, entitled "CenterPoint Properties Trust Medium-Term Notes, Series
B" (the "Notes").
WHEREAS, the Board of Trustees of the Company has approved the creation
of the Notes.
WHEREAS, the Notes of the series created by this Supplemental Indenture
may be issued from time to time, and the terms thereof shall be established as
provided herein.
WHEREAS, the consent of Holders to the execution and delivery of this
Supplemental Indenture is not required, and all other actions required to be
taken under the Original Indenture with respect to this Supplemental Indenture
have been taken.
NOW, THEREFORE IT IS AGREED:
ARTICLE ONE
DEFINITIONS, CREATION, FORM AND TERMS AND CONDITIONS OF THE DEBT SECURITIES
SECTION 1.01 DEFINITIONS. Capitalized terms used in this Supplemental
Indenture and not otherwise defined shall have the meanings ascribed to them in
the Original Indenture. 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:
"Adjusted Total Assets" of a Person as of any date means the total of
all assets of such Person which would be shown as assets on a balance sheet of
such Person as of such time prepared in accordance with GAAP plus accumulated
depreciation.
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"Annual Service Charge" as of any date means the aggregate amount of
any interest expensed by the Company and its Subsidiaries for the four
consecutive fiscal quarters most recently ended, as determined in accordance
with GAAP.
"Consolidated Income Available for Debt Service" as of any date means
Consolidated Net Income (as defined below) of the Company and its Subsidiaries
plus amounts that have been deducted in the computation thereof 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) depreciation and amortization; (e) the effect of any noncash
charge resulting from a change in accounting principles in determining
Consolidated Net Income; and (f) amortization of deferred charges, for the four
consecutive fiscal quarters most recently ended, all as determined in accordance
with GAAP, and without taking into account any provision for gains and losses on
properties.
"Consolidated Net Income" for any period means the amount of net income
(or loss) of the Company and its Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP.
"Indenture" means the Original Indenture as supplemented by the First
Supplemental Indenture, the Second Supplemental Indenture, and this Third
Supplemental Indenture.
"Intercompany Debt" means Debt to which the only parties are the
Company and any Subsidiary and, in the case of Debt owed by the Company to any
Subsidiary, such Debt is subordinate in right of payment to the holders of the
Notes.
"Notes" means the Company's Medium-Term Notes, Series B, issued from
time to time under the Indenture.
"Undepreciated Real Estate Assets" as of any date means the amount
(original cost plus capital improvements) of real estate assets of the Company
and its Subsidiaries on such date, before depreciation and amortization,
determined on a consolidated basis in accordance with GAAP.
"Unencumbered Total Asset Value" as of any date means the sum of: (i)
the amount of each asset comprising Undepreciated Real Estate Assets not subject
to an encumbrance; and (ii) the amount of all other assets of the Company and
its Subsidiaries on a consolidated basis not subject to an encumbrance,
determined in accordance with GAAP (but excluding accounts receivable and
intangibles).
SECTION 1.02 CREATION OF THE DEBT SECURITIES. In accordance with
Section 301 of the Original Indenture, the Company hereby creates the Notes as
separate series of its debt 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. The specific terms of each tranche of the series of Notes
created by this Supplemental Indenture that may be issued from time to time
shall be determined as set forth in Sections 301 and 303 of the Original
Indenture.
SECTION 1.03 APPLICABILITY OF DEFEASANCE OR COVENANT DEFEASANCE. The
provisions of Article 14 of the Original Indenture shall apply to the Notes.
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ARTICLE TWO
Additional Covenants
The Notes shall be governed by all the covenants contained in the
Original Indenture, as supplemented by this Third Supplemental Indenture, and in
particular, this Third Supplemental Indenture amends Section 1004 of the
Original Indenture to read as follows:
"SECTION 1004. LIMITATIONS ON INCURRENCE OF DEBT.
(a) The Company will not, and will not permit any Subsidiary
to, incur any Debt, other than Intercompany Debt, if, immediately after giving
effect to the incurrence of such 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
would be greater than 60% of the sum of (i) the Company's Adjusted Total Assets
as of the end of the most recent fiscal quarter prior to the incurrence of such
additional Debt, plus (ii) the increase in the Company's Adjusted Total Assets
since the end of such quarter (including any increase resulting from the
incurrence of additional Debt).
(b) The Company will not, and will not permit any Subsidiary
to, incur any Debt if the ratio of Consolidated Income Available for Debt
Service to the Annual Service Charge on the date on which such additional Debt
is to be incurred would have been less than 1.5 to 1, on a pro forma basis,
after giving effect to the incurrence of such Debt and to the application of the
proceeds thereof.
(c) The Company will not, and will not permit any Subsidiary
to, incur any Debt secured by any mortgage, lien, charge, pledge, encumbrance or
security interest of any kind upon any of the properties of the Company or any
Subsidiary ("Secured Debt"), whether owned at the date hereof or hereafter
acquired, if, immediately after giving effect to the incurrence of such Secured
Debt and the application of the proceeds thereof, the aggregate principal amount
of all outstanding Secured Debt of the Company and its Subsidiaries on a
consolidated basis would be greater than 40% of the sum of (i) the Company's
Adjusted Total Assets as of the end of the most recent fiscal quarter prior to
the incurrence of such additional Debt, plus (ii) the increase in Adjusted Total
Assets since the end of such quarter (including any increase resulting from the
incurrence of additional Debt).
(d) The Company will at all times maintain an Unencumbered
Total Asset Value in an amount not less than 150% of the aggregate principal
amount of all outstanding unsecured Debt of the Company and its Subsidiaries on
a consolidated basis.
For purposes of the foregoing provisions regarding the limitation on
the incurrence of Debt, (i) Debt shall be deemed to be "incurred" by the Company
or a Subsidiary whenever the Company or such Subsidiary shall create, assume,
guarantee or otherwise become liable in respect thereof, (ii) outstanding Debt
of any Person that becomes a Subsidiary shall be deemed to be "incurred" at the
time such Person becomes a Subsidiary, and (iii) any Debt that is extended,
renewed or refunded shall be deemed to have been "incurred" at the time of any
such extension, renewal or refunding."
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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
Supplemental Indenture of the due execution thereof by the Company. The recitals
of fact contained herein shall be taken as the statements solely of the Company,
and the Trustee assumes no responsibility for the correctness thereof.
ARTICLE FOUR
MISCELLANEOUS PROVISIONS
SECTION 4.01 RATIFICATION OF ORIGINAL INDENTURE. This 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 Supplemental Indenture shall be read, taken and construed as one and
the same instrument.
SECTION 4.02 EFFECTS 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 Supplemental Indenture by the Company shall bind its 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 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 Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of New York.
This Supplemental Indenture is subject to the provisions of the Trust Indenture
Act, that are required to be part of this Supplemental Indenture and shall, to
the extent applicable, be governed by such provisions.
SECTION 4.06 COUNTERPARTS. This Supplemental Indenture may be executed
in any number of counterparts, and each of such counterparts shall for all
purposes be deemed to be an original, but all such counterparts shall together
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused the
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.
CENTERPOINT PROPERTIES TRUST
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title President/CEO
Attest:
BY: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
U. S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title Vice President
Attest:
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
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STATE OF ILLINOIS )
) SS:
COUNTY OF ▇▇▇▇ )
On the 21st day of August, 2002, before me personally came ▇▇▇▇ ▇.
▇▇▇▇▇, ▇▇. and ▇▇▇▇ ▇. ▇▇▇▇▇▇, to me known, who being by me duly sworn, did
depose and say that they are the President and Secretary, respectively, of
CENTERPOINT PROPERTIES TRUST, one of the parties described in and which
executed the foregoing instrument, and that they signed their name,
respectively, thereto by authority of the Board of Trustees.
[Notarial Seal]
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Notary Public
COMMISSION EXPIRES
3-3-03
7
STATE OF ILLINOIS )
) SS:
COUNTY OF ▇▇▇▇ )
On the 21st day of August, 2002, before me personally came ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, to me known, who being by me duly sworn, did
depose and say that they are the President and Secretary, respectively, of
U.S. BANK TRUST NATIONAL ASSOCIATION, one of the parties described in and
which executed the foregoing instrument, and that they signed their name,
respectively, thereto by authority of the Board of Trustees.
[Notarial Seal]
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Notary Public
COMMISSION EXPIRES 9-22-05
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