EXHIBIT 10.3


 


 


FIRST SUPPLEMENTAL INDENTURE

DATED AS OF JULY 7, 2004


 


BETWEEN


 


CENTERPOINT PROPERTIES TRUST 

AND

SUNTRUST BANK, AS TRUSTEE


 

















 


FIRST
SUPPLEMENTAL INDENTURE, dated as of July 7, 2004 by and between CENTERPOINT
PROPERTIES TRUST, a Maryland real estate investment trust (the “Company”),
having its principal offices at 1808 Swift Road, Oak Brook, Illinois 60523, and
SUNTRUST BANK, a banking corporation organized and existing under the laws of
the State of Georgia, as trustee (the “Trustee”), having its Corporate Trust
Office at 919 East Main Street, Richmond, Virginia  23219.


 


RECITALS


 


WHEREAS, the Company executed and delivered
its Indenture (the “Original Indenture”), dated as of March 12, 2004, 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 $500,000,000, entitled “CenterPoint Properties
Trust Medium-Term Notes, Series A” (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.


 


“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.


 


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“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 this First 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 A, 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 $500,000,000, or its equivalent in foreign currencies, currency units or
composite currencies.  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 First Supplemental Indenture, and in
particular, this First 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 or 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/
  Michael M. Mullen

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Michael M. Mullen

  
	
   

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  	
   

  	
   

  
	
  Attest:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
      /s/ Daniel
  Hemmer

  	
   

  	
   

  
	
  Name:

  	
  Daniel Hemmer

  	
   

  	
   

  
	
  Title:

  	
  Secretary

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SUNTRUST BANK,

  
	
   

  	
   

  	
  as Trustee

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
       /s/
  Patricia A. Welling

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Patricia A. Welling

  
	
   

  	
   

  	
  Title

  	
  First Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
  Attest:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
       /s/  Nancy C. Harrison

  	
   

  	
   

  
	
  Name:

  	
  Nancy C. Harrison

  	
   

  	
   

  
	
  Title:

  	
  Vice President

  	
   

  	
   

  
						



 


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  STATE OF ILLINOIS

  	
  )

  	
   

  
	
   

  	
  )

  	
  SS:

  
	
  COUNTY OF WILL

  	
  )

  	
   

  



 


On the
7th day of July, 2004, before me personally came Michael M. Mullen and Daniel
Hemmer, 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 said
corporation.


 


 


	
  [Notarial Seal]

  
	
   

  
	
   

  
	
  /s/  Jennifer M. Kubiszyn

  	
   

  
	
  Notary Public

  
	
   

  
	
  COMMISSION EXPIRES

  
	
   

  
	
  February 10, 2007

  



 


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  COMMONWEALTH OF VIRGINIA

  	
  )

  	
   

  
	
   

  	
  )

  	
  SS:

  
	
  CITY OF RICHMOND

  	
  )

  	
   

  



 


On the
7th day of July, 2004, before me personally came Patricia A. Welling and Nancy
C. Harrison, to me known, who being by me duly sworn, did depose and say that
they are the First Vice President and Vice President, respectively, of SUNTRUST
BANK, one of the parties described in and which executed the foregoing
instrument, and that they signed their name, respectively, thereto by authority
of said entity.


 


 


	
  [Notarial Seal]

  
	
   

  
	
   

  
	
  /s/  Dorothy Laderoute

  	
   

  
	
  Notary Public

  
	
   

  
	
  COMMISSION EXPIRES

  
	
   

  
	
  February 29, 2008

  



 


 


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