EXHIBIT 99.2
CABOT INDUSTRIAL PROPERTIES, L.P.,
ISSUER
to
THE BANK OF NEW YORK,
TRUSTEE
_______________
Supplemental Indenture No. 1
Dated as of April [ ], 1999
_______________
$[ ],000,000
of
[ ]% Notes due 20[ ]
SUPPLEMENTAL INDENTURE NO. 1, dated as of April [ ], 1999 (the
"Supplemental Indenture"), between CABOT INDUSTRIAL PROPERTIES, L.P., a limited
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partnership duly organized and existing under the laws of the State of Delaware
(herein called the "Operating Partnership"), and THE BANK OF NEW YORK, a New
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York banking corporation duly organized and existing under the laws of the State
of New York, as Trustee (herein called the "Trustee").
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RECITALS OF THE OPERATING PARTNERSHIP
The Operating Partnership and Cabot Industrial Trust, a company duly
organized and existing under the laws of the State of Maryland (herein called
the "Company"), have heretofore delivered to the Trustee an Indenture dated as
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of April [ ], 1999 (the "Original Indenture" and, together with the
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Supplemental Indenture, the "Indenture"), a form of which has been filed with
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the Securities and Exchange Commission under the Securities Act of 1933, as
amended, as an exhibit to the Operating Partnership's Registration Statement on
Form S-3 (Registration No. 333-71585), providing for the issuance from time to
time of Debt Securities of the Operating Partnership (the "Securities").
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Section 301 of the Original Indenture provides for various matters
with respect to any series of Securities issued under the Original Indenture to
be established in an indenture supplemental to the Original Indenture.
Section 901(7) of the Original Indenture provides for the Operating
Partnership and the Trustee to enter into an indenture supplemental to the
Original Indenture to establish the form or terms of Securities of any series as
provided by Sections 201 and 301 of the Original Indenture.
The Board of Directors of Cabot Industrial Trust, the general partner
of the Operating Partnership, has duly adopted resolutions authorizing the
Operating Partnership to execute and deliver this Supplemental Indenture.
All the conditions and requirements necessary to make this
Supplemental Indenture, when duly executed and delivered, a valid and binding
agreement in accordance with its terms and for the purposes herein expressed,
have been performed and fulfilled.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
series
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of Debt Securities provided for herein by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders of
the Notes (as defined) or of either series thereof, as follows:
ARTICLE ONE
RELATION TO ORIGINAL INDENTURE; DEFINITIONS
Section 1.1 RELATION TO ORIGINAL INDENTURE.
This Supplemental Indenture constitutes an integral part of the
Original Indenture.
Section 1.2 DEFINITIONS.
For all purposes of this Supplemental Indenture, except as otherwise
expressly provided for or unless the context otherwise requires:
(1) capitalized terms used but not defined herein shall have the
respective meanings assigned to them in the Original Indenture; and
(2) all references herein to Articles and Sections, unless
otherwise specified, refer to the corresponding Articles and Sections of
this Supplemental Indenture.
"Acquired Indebtedness" means Indebtedness of a Person (i) existing at
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the time such Person becomes a Subsidiary or (ii) assumed in connection with the
acquisition of assets from such Person other than, in each case, Indebtedness
incurred in connection with, or in contemplation of, such Person becoming a
Subsidiary or such acquisition. Acquired Indebtedness shall be deemed to be
incurred on the date of the related acquisition of assets from any Person or the
date the acquired Person becomes a Subsidiary.
"Adjusted Treasury Rate," with respect to any Redemption Date, is the
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rate per annum equal to the semi-annual bond equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue,
expressed as a percentage of its principal amount, equal to the Comparable
Treasury Price for such Redemption Date.
"Annual Debt Service Charge" means, for any period, the aggregate
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interest expense for such period in respect of, and the amortization during such
period of any original issue discount of, Indebtedness of the Operating
Partnership and its Subsidiaries and the amount of dividends which are payable
during the period in respect of Disqualified Stock.
"Business Day" means any day, other than a Saturday or Sunday, that is
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neither a legal holiday nor a day on which banking institutions in The City of
New York or the City of Boston are authorized or required by law, regulation or
executive order to close.
"Capital Stock" means, with respect to any Person, any capital stock
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(including preferred stock), shares, interests, participations or other
ownership interests (however designated) of such Person and any rights (other
than debt securities convertible into or exchangeable for corporate stock),
warrants or options to purchase any thereof.
"Comparable Treasury Issue" means the United States Treasury security
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selected by the Quotation Agent as having a maturity comparable to the remaining
term of the Notes to be redeemed that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of such Notes.
"Comparable Treasury Price" means, with respect to any Redemption
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Date, (a) the average of the Reference Treasury Dealer Quotations for that
Redemption Date, after excluding the highest and lowest Reference Treasury
Dealer Quotations obtained, or (b) if the Trustee obtains fewer than three
Reference Treasury Dealer Quotations, the average of all such quotations.
"Consolidated Income Available for Debt Service" for any period means
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Earnings from Operations of the Operating Partnership and its Subsidiaries plus
amounts which have been deducted, and minus amounts which have been added, for
the following (without duplication): (i) interest on Indebtedness of the
Operating Partnership and its Subsidiaries; (ii) provision for taxes of the
Operating Partnership and its Subsidiaries based on income; (iii) amortization
of debt discount and deferred financing costs; (iv) provisions for gains and
losses on properties and property depreciation and amortization; (v) increases
in deferred taxes and other non-cash items; (vi) the effect of any non-cash
charge resulting from a change in accounting principles in determining Earnings
from Operations for such period; (vii) amortization of deferred charges; and
(viii) interest income related to investments irrevocably deposited with an
agent of the Operating Partnership or any of its Subsidiaries, as
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the case may be, for the purpose of an "in substance" defeasance in accordance
with GAAP of any indebtedness or other obligations.
"Corporate Trust Office" means the office of the Trustee at which, at
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any particular time, its corporate trust business is principally administered,
which office at the date hereof is located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Corporate Trust Administration and, for purposes of the
Place of Payment provisions of Sections 305 and 1002 of the Original Indenture,
is located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate
Trust Administration.
"Disqualified Stock" means, with respect to any Person, any Capital
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Stock of such Person which by the terms of such Capital Stock (or by the terms
of any security into which it is convertible or for which it is exchangeable or
exercisable), upon the happening of any event or otherwise: (i) matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise
(other than Capital Stock which is redeemable solely in exchange for Capital
Stock which is not Disqualified Stock or the maturity price or redemption price
of which may, at the option of such Person, be paid in Capital Stock which is
not Disqualified Stock); (ii) is convertible into or exchangeable or exercisable
for Indebtedness or Disqualified Stock; or (iii) is redeemable at the option of
the holder thereof, in whole or in part (other than Capital Stock which is
redeemable solely in exchange for Capital Stock which is not Disqualified Stock
or the redemption price of which may, at the option of such Person, be paid in
Capital Stock which is not Disqualified Stock), in each case on or prior to the
stated maturity of the Notes.
"Earnings from Operations" for any period means net income excluding
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(i) provisions for gains and losses on sales of investments; (ii) extraordinary
and non-recurring items; and (iii) property valuation losses, each as reflected
in the consolidated financial statements of the Operating Partnership and its
Subsidiaries for such period determined in accordance with GAAP.
"Encumbrance" means any mortgage, lien, charge, pledge or security
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interest of any kind; provided, however, that the term "Encumbrance" shall not
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include any mortgage, lien, charge, pledge or security interest securing any
indebtedness or any other obligation which has been the subject of an "in
substance" defeasance in accordance with GAAP pursuant to the terms of such
indebtedness or other obligation on the terms of any instrument creating or
evidencing it.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
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and the rules and regulations promulgated thereunder by the Commission.
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"Indebtedness" of the Operating Partnership or any Subsidiary of the
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Operating Partnership means any indebtedness of the Operating Partnership or any
such Subsidiary, whether or not contingent, in respect of: (i) borrowed money
or evidenced by bonds, notes, debentures or similar instruments, whether or not
such indebtedness is secured by any Encumbrance existing on property owned by
the Operating Partnership or any Subsidiary of the Operating Partnership; (ii)
indebtedness for borrowed money of a Person other than the Operating Partnership
or a Subsidiary of the Operating Partnership which is secured by any Encumbrance
existing on property owned by the Operating Partnership or any Subsidiary of the
Operating Partnership, to the extent of the lesser of (x) the amount of
indebtedness so secured and (y) the fair market value of the property subject to
such Encumbrance; (iii) the reimbursement obligations, contingent or otherwise,
in connection with any letters of credit actually issued or amounts representing
the balance deferred and unpaid of the purchase price of any property or
services, except any such balance that constitutes an accrued expense or trade
payable, and all conditional sale obligations and all obligations under any
title retention agreement; (iv) the principal amount of all of the Operating
Partnership's and any Operating Partnership Subsidiary's obligations with
respect to the redemption or other repurchase of any Disqualified Stock; or (v)
any lease of property by the Operating Partnership or any Subsidiary of the
Operating Partnership as lessee which is reflected on the Operating
Partnership's consolidated balance sheet as a capitalized lease in accordance
with GAAP; and also includes, to the extent not otherwise included, any
obligation by the Operating Partnership or any Subsidiary of the Operating
Partnership to be liable for, or to pay, as obligor, guarantor or otherwise
(other than for purposes of collection in the ordinary course of business),
Indebtedness of another Person (other than the Operating Partnership or any
Subsidiary of the Operating Partnership); it being understood that indebtedness
shall be deemed to be incurred by the Operating Partnership or any Subsidiary of
the Operating Partnership whenever the Operating Partnership or such Subsidiary
shall create, assume, guarantee or otherwise become liable in respect thereof;
Indebtedness of a Subsidiary of the Operating Partnership existing prior to the
time it became a Subsidiary of the Operating Partnership shall be deemed to be
incurred upon such Subsidiary's becoming a Subsidiary of the Operating
Partnership; and Indebtedness of a Person existing prior to a merger or
consolidation of such Person with the Operating Partnership or any Subsidiary of
the Operating Partnership in which such Person is the successor to the Operating
Partnership or such Subsidiary shall be deemed to be incurred upon the
consummation of such merger or consolidation; provided, however, that the term
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"Indebtedness" shall not include any such indebtedness that has been the subject
of an "in substance" defeasance in accordance with GAAP pursuant to the terms of
such indebtedness or other
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obligation on the terms of any instrument creating or evidencing it.
"Intercompany Indebtedness" means Indebtedness to which the only
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parties are the Operating Partnership, the Company and any Subsidiary of either
of them (but only so long as such Indebtedness is held solely by any of the
Operating Partnership, the Company and any such Subsidiary) that is subordinate
in right of payment to the Notes.
"Notes" has the meaning specified in Section 2.1 hereof.
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"Quotation Agent" means the Reference Treasury Dealer appointed by the
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Operating Partnership.
"Reference Treasury Dealer" means (a) each of X.X. Xxxxxx Securities
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Inc., Xxxxxxx, Sachs & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
PNC Capital Markets, Inc., Prudential Securities Incorporated, and Xxxxxxx Xxxxx
Barney Inc. and their respective successors; provided, however, that if any of
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the foregoing shall cease to be primary U.S. Government securities dealers in
New York City, the Operating Partnership shall substitute therefor another
primary U.S. Government securities dealer in New York City; and (b) any other
primary U.S. Government securities dealer selected by the Operating Partnership.
"Reference Treasury Dealer Quotations" means, with respect to each
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Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Operating Partnership, of the bid and asked prices for the Comparable
Treasury Issue, expressed in each case as a percentage of its principal amount,
quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m.,
New York City time, on the third Business Day preceding such Redemption Date.
"Total Assets" as of any date means the sum of (i) the Undepreciated
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Real Estate Assets and (ii) all other assets of the Operating Partnership and
its Subsidiaries determined in accordance with GAAP (but excluding accounts
receivable and intangibles); provided, however, that the term "Total Assets"
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shall not include any assets which have been deposited in trust in connection
with an "in substance" defeasance of any indebtedness or other obligations.
"Total Unencumbered Assets" means the sum of (i) those Undepreciated
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Real Estate Assets not subject to an Encumbrance for borrowed money and (ii) all
other assets of the Operating Partnership and its Subsidiaries not subject to an
Encumbrance for borrowed money, determined in accordance with GAAP (but
excluding accounts receivable and intangibles); provided, however, that
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the term "Total Unencumbered Assets" does not include any assets which have been
deposited in trust in connection with an "in substance" defeasance of any
indebtedness or other obligations.
"Undepreciated Real Estate Assets" as of any date means the cost
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(historical cost plus the cost of capital improvements) of real estate assets of
the Operating Partnership and its Subsidiaries on such date, before depreciation
and amortization, determined on a consolidated basis in accordance with GAAP.
"Unsecured Indebtedness" means Indebtedness which is not secured by
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any Encumbrance upon any of the properties of the Operating Partnership or any
Subsidiary.
ARTICLE TWO
THE SERIES OF NOTES
Section 2.1 TITLE OF THE SECURITIES.
There shall be a series of Securities designated the "[ ]% Notes due
20[ ]" (the "Notes").
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Section 2.2 LIMITATION ON AGGREGATE PRINCIPAL AMOUNT.
The aggregate principal amount of the Notes shall be limited to $[
],000,000, and, except as provided in this Section and in Section 306 of the
Original Indenture, the Operating Partnership shall not execute and the Trustee
shall not authenticate or deliver Notes in excess of such aggregate principal
amount.
Nothing contained in this Section 2.2 or elsewhere in this
Supplemental Indenture, or in the Notes, is intended to or shall limit execution
by the Operating Partnership or authentication or delivery by the Trustee of
Notes under the circumstances contemplated by Sections 303, 304, 305, 306, 906,
1107 and 1305 of the Original Indenture.
Section 2.3 INTEREST AND INTEREST RATES; MATURITY DATE OF NOTES.
The Notes will bear interest at a rate of [ ]% per annum from [ ],
1999 or from the immediately preceding Interest Payment Date to which interest
has
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been paid or duly provided for, payable semiannually in arrears on
[ ] and [ ] of each year, commencing on [ ], 1999 (each, an
"Interest Payment Date"), and, if not otherwise an Interest Payment Date, at the
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Stated Maturity, to the Persons in whose name such Notes are registered in the
Security Register at the close of business on [ ] or [ ] (whether or not
a Business Day), as the case may be, next preceding such Interest Payment Date
(each, a "Regular Record Date"). Interest will be computed on the basis of a
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360-day year comprised of twelve 30-day months. The interest so payable on any
Note which is not punctually paid or duly provided for on any Interest Payment
Date shall forthwith cease to be payable to the Person in whose name such Note
is registered on the relevant Regular Record Date, and such defaulted interest
shall instead be payable to the Person in whose name such Note is registered on
the Special Record Date or other specified date determined in accordance with
the Original Indenture.
If any Interest Payment Date or Stated Maturity falls on a day that is
not a Business Day, the required payment shall be made on the next Business Day
as if it were made on the date such payment was due and no interest shall accrue
on the amount so payable for the period from and after such Interest Payment
Date or Maturity, as the case may be.
The Notes will mature on [ ], 20[ ].
Section 2.4 LIMITATIONS ON INCURRENCE OF INDEBTEDNESS.
(a) The Operating Partnership will not, and will not permit any of its
Subsidiaries to, incur any Indebtedness, other than Intercompany Indebtedness,
if, immediately after giving effect to the incurrence of such additional
Indebtedness and the application of the proceeds thereof, the aggregate
principal amount of all outstanding Indebtedness of the Operating Partnership
and its Subsidiaries on a consolidated basis determined in accordance with GAAP
would be greater than 60% of the sum of (without duplication) (i) the Total
Assets of the Operating Partnership and its Subsidiaries as of the end of the
calendar quarter covered in the Operating Partnership's Annual Report on Form
10-K or Quarterly Report on Form 10-Q, as the case may be, most recently filed
with the Commission (or, if such filing is not permitted under the Exchange Act,
then[, subject to Section 703 of the Original Indenture,] with the Trustee, or
if the Operating Partnership has not yet filed its first quarterly report on
Form 10-Q, then as of December 31, 1998) prior to the incurrence of such
additional Indebtedness and (ii) the purchase price of any real estate assets or
mortgage loans receivable acquired, and the amount of any securities offering
proceeds received (to the extent such proceeds were not used to acquire real
estate assets or mortgage loans receivable or used to reduce Indebtedness), by
the
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Operating Partnership or any of its Subsidiaries since the end of such calendar
quarter, including those proceeds obtained in connection with the incurrence of
such additional Indebtedness.
(b) The Operating Partnership will not, and will not permit any of its
Subsidiaries to, incur any Indebtedness if the ratio of Consolidated Income
Available for Debt Service to the Annual Debt Service Charge for the four
consecutive fiscal quarters most recently ended prior to the date on which such
additional Indebtedness is to be incurred shall have been less than 1.5:1 on a
pro forma basis after giving effect thereto and to the application of the
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proceeds therefrom and calculated on the assumption that (i) such Indebtedness
and any other Indebtedness incurred by the Operating Partnership and its
Subsidiaries since the first day of such four-quarter period and the application
of the proceeds therefrom, including to refinance other Indebtedness, had
occurred at the beginning of such period; (ii) the repayment or retirement of
any other Indebtedness by the Operating Partnership and its Subsidiaries 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
Indebtedness under any revolving credit facility shall be computed based upon
the average daily balance of such Indebtedness during such period); (iii) in the
case of Acquired Indebtedness or Indebtedness incurred in connection with any
acquisition since the first day of such four-quarter period, the related
acquisition had occurred as of the first day of such period with the appropriate
adjustments with respect to such acquisition being included in such pro forma
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calculation; and (iv) in the case of any acquisition or disposition by the
Operating Partnership or its Subsidiaries of any asset or group of assets since
the first day of such four-quarter period, whether by merger, stock purchase or
sale, or asset purchase or sale, such acquisition or disposition or any related
repayment of Indebtedness 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.
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(c) The Operating Partnership will not, and will not permit any of its
Subsidiaries to, incur any Indebtedness secured by any Encumbrance on or in any
of the property of the Operating Partnership or any of its Subsidiaries, whether
owned at the date of this Supplemental Indenture or thereafter acquired, if,
immediately after giving effect to the incurrence of such additional
Indebtedness and the application of the proceeds thereof, the aggregate
principal amount of all outstanding Indebtedness of the Operating Partnership
and its Subsidiaries on a consolidated basis which is secured by any Encumbrance
on property of the Operating Partnership or any of its Subsidiaries would be
greater than 40% of the sum of (without duplication) (i) the Total Assets of the
Operating Partnership and its
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Subsidiaries as of the end of the calendar quarter covered in the Operating
Partnership's Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as
the case may be, most recently filed with the Commission (or, if such filing is
not permitted under the Exchange Act, then with the Trustee, or if the Operating
Partnership has not yet filed its first quarterly report on Form 10-Q, then as
of December 31, 1998) prior to the incurrence of such additional Indebtedness
and (ii) the purchase price of any real estate assets or mortgage loans
receivable acquired, and the amount of any securities offering proceeds received
(to the extent such proceeds were not used to acquire real estate assets or
mortgage loans receivable or used to reduce Indebtedness), by the Operating
Partnership or any of its Subsidiaries since the end of such calendar quarter,
including those proceeds obtained in connection with the incurrence of such
additional Indebtedness.
(d) The Operating Partnership and its Subsidiaries must at all times
have Total Unencumbered Assets equal to 150% or more of the aggregate
outstanding principal amount of the Unsecured Indebtedness of the Operating
Partnership and its Subsidiaries on a consolidated basis.
Section 2.5 REDEMPTION.
The Notes may be redeemed at any time at the option of the Operating
Partnership, in whole or in part, at a redemption price equal to the greater of
(i) 100% of the principal amount of the Notes to be redeemed plus accrued and
unpaid interest thereon to the Redemption Date and (ii) an amount equal to the
sum of the present values of the remaining scheduled payments of principal and
interest on the Notes to be redeemed (not including any portion of such payments
of interest accrued as of the Redemption Date) discounted to the Redemption Date
on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Adjusted Treasury Rate plus [ ] basis points (the
"Redemption Price")plus accrued and unpaid interest thereon to the Redemption
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Date.
Section 2.6 PLACE OF PAYMENT.
The Places of Payment where the Notes may be presented or surrendered
for payment, where the Notes may be surrendered for registration of transfer or
exchange and where notices and demands to and upon the Operating Partnership in
respect of the Notes and the Indenture may be served shall be in the Borough of
Manhattan, The City of New York, New York, and the office or agency for such
purpose shall initially be located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
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Section 2.7 METHOD OF PAYMENT.
Payment of the principal of and interest on any Notes not represented
by a global security will be made at the Corporate Trust Office maintained for
that purpose in the Borough of Manhattan, The City of New York, New York, in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts; provided, however, that
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at the option of the Operating Partnership, payments of interest on the Notes
may be made (i) by check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register or (ii) by wire transfer to
an account maintained by the Person entitled thereto located within the United
States.
Section 2.8 CURRENCY.
Principal and interest on the Notes shall be payable in Dollars.
Section 2.9 REGISTERED SECURITIES; GLOBAL FORM.
The Notes shall be issuable and transferable in fully registered form
as Registered Securities, without coupons. The Notes shall be issued in the
form of one or more permanent global securities. The depository for the Notes
shall be The Depository Trust Company ("DTC"). The Notes shall not be issuable
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in definitive form except as provided in Section 305 of the original Indenture.
Section 2.10 FORM OF NOTES.
The Notes shall be substantially in the form attached as Exhibit A
hereto.
Section 2.11 REGISTRAR AND PAYING AGENT.
The Trustee shall initially serve as Security Registrar and Paying
Agent for the Notes.
Section 2.12 DEFEASANCE.
The provisions of Sections 1402 and 1403 of the Original Indenture,
together with the other provisions of Article Fourteen of the Original
Indenture, shall be applicable to the Notes. The provisions of Section 1403 of
the Original Indenture shall apply to the covenants set forth in Sections 2.4
and 2.15 of this Supplemental Indenture and to those covenants specified in
Section 1403 of the Original Indenture.
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Section 2.13 ACCELERATION OF MATURITY.
Upon acceleration of the Stated Maturity of the Notes in accordance
with Section 502 of the Original Indenture, the Holders of the Notes shall be
entitled to receive, from the Operating Partnership, an amount equal to the
Redemption Price set forth in Section 2.5 of this Supplemental Indenture,
determined as if a redemption had occurred on the same date as the Event of
Default.
Section 2.14 WAIVER OF CERTAIN COVENANTS.
Notwithstanding the provisions of Section 1011 of the Original
Indenture, the Operating Partnership may omit in any particular instance to
comply with any term, provision or condition set forth in the Original Indenture
and in this Supplemental Indenture and with any other term, provision or
condition with respect to the Notes (except any such term, provision or
condition which could not be amended without the consent of all Holders of the
Notes or such series thereof, as applicable), if before or after the time for
such compliance the Holders of at least a majority in principal amount of all
Outstanding Notes, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such covenant or condition. Except
to the extent so expressly waived, and until such waiver shall become effective,
the obligations of the Operating Partnership and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force and
effect.
Section 2.15 NO GUARANTY BY THE CORPORATION.
The Guarantee set forth in Article Sixteen of the Original Indenture
shall not be in effect with respect to the Notes.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
Section 3.1 RATIFICATION OF ORIGINAL INDENTURE.
Except as expressly modified or amended hereby, the Original Indenture
continues in full force and effect and is in all respects confirmed and
preserved.
Section 3.2 GOVERNING LAW.
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This Supplemental Indenture and each Note 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
of 1939, as amended, and shall, to the extent applicable, be governed by such
provisions.
Section 3.3 COUNTERPARTS.
This Supplemental Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
Section 3.4 CERTAIN RIGHTS OF TRUSTEE.
Except as otherwise expressly provided herein, no duties,
responsibilities or liabilities are assumed, or shall be construed to be
assumed, by the Trustee by reason of this Supplemental Indenture. This
Supplemental Indenture is executed and accepted by the Trustee subject to all
the terms and conditions set forth in the Original Indenture with the same force
and effect as if those terms and conditions were repeated at length herein and
made applicable to the Trustee with respect hereto.
Section 3.5 TRUSTEE NOT RESPONSIBLE.
The Trustee shall not be responsible in any manner for or in respect
of the validity or sufficiency of this Supplemental Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed by their respective officers thereunto duly
authorized, all as of the day and year first written above.
CABOT INDUSTRIAL PROPERTIES, L.P.
By: Cabot Industrial Trust, its General Partner
By:
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Name:
Title:
THE BANK OF NEW YORK, as Trustee
By:
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Name:
Title:
EXHIBIT A TO
SUPPLEMENTAL INDENTURE
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), 00 XXXXX XXXXXX,
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XXX XXXX, XXX XXXX, TO THE OPERATING PARTNERSHIP (AS DEFINED BELOW) OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING SET FORTH IN THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF DTC OR A
NOMINEE OF DTC. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE
NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC
TO A NOMINEE OF DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ITS NOMINEE TO A
SUCCESSOR DEPOSITORY OR ITS NOMINEE.
Registered No. PRINCIPAL AMOUNT
CUSIP No.: $
CABOT INDUSTRIAL PROPERTIES, L.P.
[ ]% NOTE DUE 20[ ]
CABOT INDUSTRIAL PROPERTIES, L.P., a limited partnership duly
organized and existing under the laws of the State of Delaware (herein referred
to as the "Operating Partnership," which term shall include any successor Person
---------------------
under the Indenture hereinafter referred to), for value received, hereby
promises to pay to CEDE & CO., or registered assigns, upon presentation, the
principal sum of [ ] DOLLARS on [ ], 20[ ], and to pay interest
on the outstanding principal amount
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thereon from [ ], 1999, or from the immediately preceding Interest Payment Date
to which interest has been paid or duly provided for, semiannually in arrears on
[ ] and [ ] in each year, commencing [ ], 1999, at the rate of [ ]% per annum,
until the entire principal hereof is paid or made available for payment. The
interest so payable and punctually paid or duly provided for on any Interest
Payment Date will, as provided in the Indenture, be paid to the Person in whose
name this Security is registered at the close of business on the Regular Record
Date for such interest, which shall be the [ ] or [ ] (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for shall forthwith cease to be
payable to the Holder on such Regular Record Date, and may either be paid to the
Person in whose name this Security is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of the Securities not more
than 15 days and not less than 10 days prior to such Special Record Date, or may
be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture. Payment of the principal of and interest on this
Security will be made at the office or agency maintained for that purpose in The
City of New York, New York or elsewhere as provided in the Indenture, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts; provided, however, that at
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the option of the Operating Partnership payments of principal and interest on
the Notes (other than payments of principal and interest due at Maturity) may be
made (i) by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register or (ii) by wire transfer to an
account of the Person entitled thereto located within the United States.
Securities of this series are one of a duly authorized issue of
securities of the Operating Partnership (herein called the "Securities"), issued
----------
and to be issued in one or more series under an Indenture (herein called the
"Original Indenture"), dated as of [ ], 1999, among the Operating
-------------------
Partnership, Cabot Industrial Trust and The Bank of New York, (herein called the
"Trustee," which term includes any successor trustee under the Original
-------
Indenture), as supplemented by Supplemental Indenture No. 1, dated as of
[ ], 1999 (herein called the "Supplemental Indenture", and, together with the
----------------------
Original Indenture, the "Indenture"), between the Operating Partnership and the
---------
Trustee, to which Indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Operating Partnership, the Trustee and
the Holders of the Securities and of the terms upon which the Securities are
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authenticated and delivered. This Security is one of the series designated in
the Supplemental Indenture, limited in aggregate principal amount to
$[ ],000,000.
Securities of this series may be redeemed at any time at the option of
the Operating Partnership, in whole or in part, upon notice of not more than 60
nor less than 30 days prior to the Redemption Date, at the Redemption Price set
forth in Section 2.5 of the Supplemental Indenture.
The Indenture contains provisions for defeasance at any time of (a)
the entire Indebtedness of the Operating Partnership on this Security and (b)
certain restrictive covenants and the related defaults and Events of Default
applicable to the Operating Partnership, in each case, upon compliance by the
Operating Partnership with certain conditions set forth in the Indenture, which
provisions apply to this Security.
If an Event of Default with respect to the Securities shall occur and
be continuing, the principal of the Securities may be declared due and payable
in the manner and with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
written notice to the Trustee of a continuing Event of Default with respect to
the Securities, the Holders of not less than a majority in principal amount of
the Securities of this series at the time outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee indemnity satisfactory to it and the
Trustee shall not have received from the Holders of a majority in principal
amount of Securities of this series at the time outstanding a direction
inconsistent with such request, and shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder
of this Security for the enforcement of any payment of principal hereof or any
interest on or after the respective due dates expressed herein.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Operating Partnership and the rights of the Holders of the Securities of each
series to be affected under the Indenture at any time by the Operating
Partnership and the Trustee with the consent of the Holders of not less than a
majority in principal amount of the Outstanding Securities of each series of
Securities then Outstanding
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affected thereby. The Indenture also contains provisions permitting the Holders
of specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such series,
to waive compliance by the Operating Partnership with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Operating
Partnership, which is absolute and unconditional, to pay the principal of (and
Redemption Price, if any) and interest on this Security at the times, place and
rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Operating Partnership in any Place of Payment where the
principal of (and Redemption Price, if any) and interest on this Security are
payable, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Operating Partnership and the Security Registrar duly
executed by the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities of this series, of authorized denominations
and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series of a different authorized denomination, as
requested by the Holder surrendering the same. No service charge shall be made
for any such registration of transfer or exchange, but the Operating Partnership
may require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Operating Partnership, the Trustee and any agent of the Operating
Partnership or the Trustee may treat the Person in whose name this Security is
registered as the owner hereof for all purposes, whether or not this Security
may be overdue, and
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neither the Operating Partnership, the Trustee nor any such agent shall be
affected by notice to the contrary.
No recourse under or upon any obligation, covenant or agreement
contained in the Indenture or in this Security, or because of any Indebtedness
evidenced hereby or thereby, shall be had against any promoter, as such, or
against any past, present or future partner, officer or director, as such, of
the Operating Partnership or of any successor, either directly or through the
Operating Partnership or any successor, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance of this Security by the Holder thereof and as
part of the consideration for the issue of the Securities of this series.
All capitalized terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE SECURITIES, INCLUDING THIS SECURITY, SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Operating Partnership has caused "CUSIP"
numbers to be printed on the Securities of this series as a convenience to the
Holders of such Securities. No representation is made as to the correctness or
accuracy of such CUSIP numbers as printed on the Securities, and reliance may be
placed only on the other identification numbers printed hereon.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee by manual signature, this Security shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
S-1
IN WITNESS WHEREOF, CABOT INDUSTRIAL PROPERTIES, L.P. has caused this
instrument to be duly executed.
Dated: , 1999
CABOT INDUSTRIAL PROPERTIES, L.P.
By: Cabot Industrial Trust, its
General Partner
By:
---------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated: , 0000
XXX XXXX XX XXX XXXX, as Trustee
By:
---------------------------------
Authorized Signatory
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
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...............................
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.........................................................
(Please Print or Typewrite Name and Address including
Zip Code of Assignee)
...............................................................................
the within Security of Cabot Industrial Properties, L.P. and hereby does
irrevocably constitute and appoint
..........Attorney to transfer said Security on the books of Cabot Industrial
Properties, L.P. with full power of substitution in the premises.
Dated............................... ........................................
........................................
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Security in every particular, without
alteration or enlargement or any change whatever.
Signature(s) must be guaranteed by an institution which is a member of one
of the following recognized signature Guarantee Programs: (i) The
Securities Transfer Agent Medallion Program (STAMP); (ii) The New York
Stock Exchange Medallion Program (MNSP); (iii) The Stock Exchange Medallion
Program (SEMP); or (iv) another guarantee program acceptable to the
Trustee.
...........................
Signature Guarantee
