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LIBERTY PROPERTY LIMITED PARTNERSHIP
ISSUER
TO
THE FIRST NATIONAL BANK OF CHICAGO
TRUSTEE
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FORM OF SUPPLEMENTAL INDENTURE
DATED AS OF ________________, 1997
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SUPPLEMENT TO INDENTURE,
DATED AS OF ______________, 1997, BETWEEN
LIBERTY PROPERTY LIMITED PARTNERSHIP AND
THE FIRST NATIONAL BANK OF CHICAGO
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FIRST SUPPLEMENTAL INDENTURE, dated as of _________________,
between LIBERTY PROPERTY LIMITED PARTNERSHIP, a Pennsylvania limited partnership
(the "Issuer"), having its principal offices at 00 Xxxxxx Xxxxxx Xxxxxxx,
Xxxxxxx, Xxxxxxxxxxxx 00000, and THE FIRST NATIONAL BANK OF CHICAGO, a national
banking association organized under the laws of the United States of America, as
trustee (the "Trustee"), having its Corporate Trust Office at Xxx Xxxxx Xxxxxxxx
Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000-0000.
RECITALS
WHEREAS, the Issuer executed and delivered its Indenture (the
"Original Indenture"), dated as of _____________, 1997, 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 Issuer may create one or more series of its debt
securities and establish the form and terms and conditions thereof.
WHEREAS, the Issuer intends by this Supplemental Indenture to
(i) create a series of debt securities, in an aggregate principal amount not to
exceed $_________; and (ii) establish the form and the terms and conditions of
such securities.
WHEREAS, the Board of Trustees of Liberty Property Trust, the
general partner of the Issuer, has approved the creation of the Notes and the
form, terms and conditions thereof.
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:
"GLOBAL NOTE" means a single fully-registered global note in
book-entry form, without coupons, substantially in the form of Exhibit A or
Exhibit B attached hereto.
"INDENTURE" means the Original Indenture as supplemented by
this First Supplemental Indenture.
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"INTERCOMPANY DEBT" means Debt to which the only parties are
the Trust, any of its subsidiaries, the Issuer and any Subsidiary, or Debt owed
to the Trust arising from routine cash management practices, but only so long as
such Debt is held solely by any of the Trust, any of its subsidiaries, the
Issuer and any Subsidiary.
"NOTES" means the ________________.
SECTION 1.02 CREATION OF THE DEBT SECURITIES. In accordance with
Section 301 of the Original Indenture, the Issuer hereby creates each of the
____________ as separate series of its debt securities issued pursuant to the
Indenture. The _________ shall be issued in an aggregate principal amount not to
exceed $100,000,000.
SECTION 1.03 FORM OF THE DEBT SECURITIES. Each series of Notes will be
represented by a single fully-registered global note in book-entry form, without
coupons, registered in the name of the nominee of DTC. The _______ shall be in
the form of Exhibit A attached hereto. So long as DTC, or its nominee, is the
registered owner of a Global Note, DTC or its nominee, as the case may be, will
be considered the sole owner or holder of the notes represented by such Global
Note for all purposes under the Indenture. Ownership of beneficial interests in
the Global Notes will be shown on, and transfers thereof will be effected only
through, records maintained by DTC (with respect to beneficial interests of
participants) or by participants or persons that hold interests through
participants (with respect to beneficial interests of beneficial owners).
SECTION 1.04 TERMS AND CONDITIONS OF THE DEBT SECURITIES. The Notes
shall be governed by all the terms and conditions of the Original Indenture, as
supplemented by this First Supplemental Indenture, and in particular, the
following provisions shall be terms of the Notes:
(a) Optional Redemption. The Issuer may redeem the Notes of either or
both series at any time at the option of the Issuer, in whole or from time to
time in part, at a redemption price equal to the Redemption Price.
If notice of redemption has been given as provided in the Original
Indenture and funds for the redemption of any Notes called for redemption shall
have been made available on the Redemption Date referred to in such notice, such
Notes will cease to bear interest on the date fixed for such redemption
specified in such notice and the only right of the Holders of such Notes from
and after the Redemption Date will be to receive payment of the Redemption Price
upon surrender of such Notes in accordance with such notice.
Notice of any optional redemption of any Notes will be given to Holders
at their addresses, as shown in the security register for the Notes, not more
than 60 nor less than 30 days prior to the date fixed for redemption. The notice
of redemption will specify, among other items, the Redemption Price and the
principal amount of the Notes held by such Holder to be redeemed.
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If all or less than all of the Notes of any series are to be redeemed
at the option of the Issuer, the Issuer will notify the Trustee at least 45 days
prior to giving notice of redemption (or such shorter period as is satisfactory
to the Trustee) of the aggregate principal amount of Notes to be redeemed, if
less than all of the Notes of any series are to be redeemed, and their
Redemption Date. The Trustee shall select, in such manner as it shall deem fair
and appropriate, no less than 60 days prior to the date of redemption, the Notes
to be redeemed in whole or in part.
(b) Payment of Principal and Interest. Principal and interest payments
on interests represented by a Global Note will be made to DTC or its nominee, as
the case may be, as the registered owner of such Global Note. All payments of
principal and interest in respect of the Notes will be made by the Issuer in
immediately available funds.
(c) Applicability of Defeasance or Covenant Defeasance. The provisions
of Article 14 of the Original Indenture shall apply to the Notes.
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 Issuer will not, and will not permit any Subsidiary to, incur
any Debt, other than Intercompany Debt, that is subordinate in right of payment
to the Notes, 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 Issuer and its Subsidiaries on a consolidated basis
determined in accordance with GAAP is greater than __% of the sum of (i) the
Issuer's Adjusted Total Assets as of the end of the most recent fiscal quarter
prior to the incurrence of such additional Debt and (ii) the increase in
Adjusted Total Assets since the end of such quarter (including any increase
resulting from the incurrence of additional Debt).
(b) The Issuer 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 ___ to __, on a pro forma basis, after giving
effect to the incurrence of such Debt and to the application of the proceeds
thereof.
(c) The Issuer 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 Issuer 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 Issuer and its Subsidiaries on a consolidated
basis is greater than
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___% of the sum of (i) the Issuer's Adjusted Total Assets as of the end of the
most recent fiscal quarter prior to the incurrence of such additional Debt and
(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 Issuer will at all time maintain an Unencumbered Total Asset
Value in an amount not less than ____% of the aggregate principal amount of all
outstanding unsecured Debt of the Issuer and its Subsidiaries on a consolidated
basis.
For purposes of the foregoing provisions regarding the
limitation on the incurrence of Debt, Debt shall be deemed to be "incurred" by
the Issuer or a Subsidiary whenever the Issuer or such Subsidiary shall create,
assume, guarantee or otherwise become liable in respect thereof."
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 Issuer. The recitals
of fact contained herein shall be taken as the statements solely of the Issuer,
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 EFFECT OF HEADINGS. The Article and Section headings
herein are for convenience only and shall not affect the construction hereof.
SECTION 4.03 SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Supplemental Indenture by the Issuer 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.
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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 this 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.
LIBERTY PROPERTY LIMITED PARTNERSHIP
By: Liberty Property Trust,
as its sole General Partner
By:
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Name:
Title:
Attest:
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Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:
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Name:
Title:
Attest:
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Name:
Title:
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STATE OF ___________ )
) ss:
COUNTY OF __________ )
On the ___________ day of August 1997, before me personally came
____________________, to me known, who, being by me duly sworn, did depose and
say that he/she resides at _____________________________________, that he/she is
________________ of LIBERTY PROPERTY TRUST, the sole general partner of LIBERTY
PROPERTY LIMITED PARTNERSHIP, one of the parties described in and which executed
the foregoing instrument, and that he/she signed his/her name thereto by
authority of the Board of Trustees.
[Notarial Seal]
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Notary Public
COMMISSION EXPIRES
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STATE OF ____________ )
) ss:
COUNTY OF ____________ )
On the __________ day of August 1997, before me personally came
____________________, to me known, who, being by me duly sworn, did depose and
say that he/she resides at _____________________________________, that he/she is
a _______________ of THE FIRST NATIONAL BANK OF CHICAGO, one of the parties
described in and which executed the foregoing instrument, and that he/she signed
his/her name thereto by authority of the Board of Directors.
[Notarial Seal]
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Notary Public
COMMISSION EXPIRES
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