CENTERPOINT PROPERTIES TRUST
370,371 SHARES
COMMON SHARES OF BENEFICIAL INTEREST
($.001 PAR VALUE)
UNDERWRITING AGREEMENT
March 25, 1998
EVEREN SECURITIES, INC.
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
The undersigned, CenterPoint Properties Trust, a Maryland real estate
investment trust, (the "COMPANY") hereby confirms its agreement with you (the
"UNDERWRITER") as follows:
1. DESCRIPTION OF SHARES. The Company proposes to issue and sell to you
370,371 shares of its Common Shares of Beneficial Interest, par value $.001 per
share (the "SHARES"). The Shares are more fully described in the Prospectus
hereinafter defined.
2. PURCHASE, SALE AND DELIVERY OF SHARES. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to you, and
you agree to purchase from the Company at a purchase price of $32.0625 per
share, 370,371 Shares.
The Company will deliver definitive certificates for the Shares at the
office of EVEREN Securities, Inc., 00 Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx
("EVEREN'S OFFICE"), or such other place as you and the Company may mutually
agree upon (the "PLACE OF CLOSING"), for your account against payment to the
Company of the purchase price for the Shares sold to you by wire transfer of
immediately available funds, at 9:00 a.m., Chicago time, on March 30, 1998, or
at such other time and date not later than three full business days thereafter
as you and the Company may agree, such time and date of payment and delivery
being herein called the "Closing Date."
The certificates for the Shares so to be delivered will be made available
to you for inspection at EVEREN's Office (or such other place as you and the
Company may mutually agree upon) at least one full business day prior to the
Closing Date and will be in such names and denominations as you may request at
least one full business day prior to the Closing Date.
3. Representations, Warranties and Agreements of the Company. (a) The
Company represents and warrants to and agrees with you that:
(i) The Company meets the requirements for use of Form S-3 under
the Securities Act of 1933, as amended (the "ACT"); a registration
statement (Registration No. 333-18235) on Form S-3, including a
prospectus relating to the registration of the Shares and such other
securities which may be offered from time to time in accordance with
Rule 415 under the Act, and such amendments to such registration
statement as may have been required to the date of this Agreement, has
been prepared by the Company pursuant to and in conformity with the
requirements of the Act, and the Rules and Regulations (the "RULES AND
REGULATIONS") of the Securities and Exchange Commission (the
"COMMISSION") thereunder, was filed with the Commission under the Act,
and was declared effective on January 6, 1997; Post-Effective Amendment
No. 1 to the Registration Statement was declared effective on October
23, 1997. Copies of such registration statement, including any
amendments thereto, each related prospectus contained therein, the
exhibits, financial statements and schedules have heretofore been
delivered by the Company to you. A prospectus supplement (the
"PROSPECTUS SUPPLEMENT") setting forth the terms of the offering, sale
and plan of distribution of the Shares and additional information
concerning the Company and its business has been or will be so prepared
and will be filed pursuant to Rule 424(b) of the Rules and Regulations
on or before the second business day after the date hereof (or such
earlier time as may be required by the Rules and Regulations). The term
"Registration Statement" as used herein means the registration
statement, and the basic prospectus included therein, as amended at the
time it or any amendment thereto became effective under the Act, or at
the time any Annual Report on Form 10-K is filed by the Company with the
Commission (the "EFFECTIVE DATE"), including financial statements and
all exhibits and all documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Act. Any document filed by
the Company under the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT") after the effective date of the Registration Statement
or the date of the Prospectus Supplement and incorporated by reference
in the Prospectus shall be deemed to be included in the Registration
Statement and the Prospectus as of the date of such filing. The term
"Prospectus" as used herein means (i) the basic prospectus included in
the Registration Statement at the Effective Date, as supplemented by the
Prospectus Supplement as first filed with the Commission pursuant to
Rule 424(b) of the Rules and Regulations, except that, if such basic
prospectus is amended or supplemented subsequent to the Effective Date,
the term "Prospectus" shall refer to the basic prospectus as so amended
or supplemented and as further supplemented by the Prospectus
Supplement, (ii) if no such filing is required, the form of final
prospectus included in the Registration Statement at the Effective Date
or (iii) if a Term Sheet or Abbreviated Term Sheet (as such terms are
defined in Rule 434(b) and 434(c), respectively, of the Rules and
Regulations) is filed with the Commission pursuant to Rule 424(b)(7) of
the Rules and Regulations, the Term Sheet or Abbreviated Term Sheet and
the last Preliminary Prospectus filed with the Commission prior to the
time the Registration Statement became effective, taken together
(including, in each case, the documents incorporated by reference
therein
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pursuant to Item 12 of Form S-3 under the Act). The term "Preliminary
Prospectus" as used herein shall mean a preliminary prospectus included
at any time in the Registration Statement.
(ii) The Commission has not issued, and is not to the knowledge
of the Company threatening to issue, an order preventing or suspending
the use of any Preliminary Prospectus or the Prospectus nor instituted
proceedings for that purpose. Each Preliminary Prospectus at its date
of issue, the Registration Statement at the Effective Date, and the
Prospectus at its date of issue and any amendments or supplements
thereto contains or will contain, as the case may be, all statements
which are required to be stated therein by, and in all material respects
conform or will conform, as the case may be, to the requirements of, the
Act and the Rules and Regulations. Neither the Registration Statement
nor any amendment thereto, as of the applicable effective date, and
neither the Prospectus nor any supplement thereto, as of its applicable
issue date or the Closing Date, contains or will contain, as the case
may be, any untrue statement of a material fact or omits or will omit to
state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; PROVIDED, HOWEVER, that the
Company makes no representation or warranty as to information contained
in or omitted from the Registration Statement or the Prospectus, or any
such amendment or supplement, in reliance upon, and in conforming with,
written information furnished to the Company by you specifically for use
in the preparation thereof.
(iii) The documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3 under the Act, at the time they were
filed with the Commission, complied in all material respects with the
requirements of the Exchange Act, and the rules and regulations adopted
by the Commission thereunder (the "1934 ACT RULES AND REGULATIONS"),
and, when read together and with the other information in the
Prospectus, at the time the Registration Statement became effective and
at the Closing Date, did not or will not, as the case may be, contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading.
(iv) The filing of the Registration Statement and the execution
and delivery of this Agreement have been duly authorized by the Board of
Trustees of the Company; this Agreement constitutes a valid and legally
binding obligation of the Company enforceable in accordance with its
terms (except to the extent the enforceability of the indemnification
and contribution provisions of Section 6 hereof may be limited by public
policy considerations as expressed in the Act as construed by courts of
competent jurisdiction, and except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting creditors' rights generally and by general principles of
equity); the issue and sale of the Shares by the Company and the
performance of this Agreement and the consummation of the transactions
herein contemplated will not result in a violation of the Company's
declaration of trust or bylaws or result in a breach or violation of any
of the terms
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and provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
properties or assets of the Company or its subsidiaries under, any
statute, or under any indenture, mortgage, deed of trust, note, loan
agreement, sale and leaseback arrangement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or
by which they are bound or to which any of the properties or assets of
the Company or its subsidiaries is subject, or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or its subsidiaries or their properties,
except to such extent as does not materially adversely affect the
business of the Company and its subsidiaries taken as a whole; no
consent, approval, authorization, order, registration or qualification
of or with any court or governmental agency or body is required for the
consummation of the transactions herein contemplated, except such as may
be required by the National Association of Securities Dealers, Inc. (the
"NASD") or under the Act or Rules and Regulations or any state
securities laws.
(v) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree. Except as
contemplated in the Prospectus, subsequent to the respective dates as of
which information is given in the Registration Statement and the
Prospectus, there has not been any material change in the capital stock
or long-term debt of the Company and its subsidiaries taken as a whole
or any material adverse change in the condition (financial or other),
net worth, business, affairs, management, prospects or results of
operations of the Company and its subsidiaries taken as a whole. The
Company and its subsidiaries have filed all necessary federal, state and
foreign income and franchise tax returns and paid all taxes shown as due
thereon; all tax liabilities are adequately provided for on the books of
the Company and its subsidiaries except to such extent as would not
materially adversely affect the business of the Company and its
subsidiaries taken as a whole; and the Company and its subsidiaries have
no knowledge of any tax proceeding or action pending or threatened
against the Company or its subsidiaries which would have a material
adverse effect on the business of the Company and its subsidiaries,
taken as a whole.
(vi) Except as described in the Registration Statement, there is
not now pending or, to the knowledge of the Company, threatened or
contemplated, any action, suit or proceeding to which the Company or its
subsidiaries is a party before or by any court or public, regulatory or
governmental agency or body which could reasonably be expected to result
(individually or in the aggregate) in any material adverse change in the
condition (financial or other), business or prospects of the Company and
its subsidiaries taken as a whole, or could reasonably be expected to
materially and adversely affect (individually or in the aggregate) the
properties or assets thereof, and there are no contracts or documents of
the Company or its subsidiaries which would be required to be filed as
exhibits to the Registration
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Statement by the Act or by the Rules and Regulations which have not been
filed as exhibits to the Registration Statement or incorporated by
reference therein.
(vii) The Company has duly and validly authorized shares of
beneficial interest as described in the Prospectus; all outstanding
Common Shares of the Company and the Shares conform, or when issued will
conform, to the description thereof in the Prospectus and have been, or,
when issued and paid for will be, duly authorized, validly issued, fully
paid and nonassessable; and the issuance of the Shares to be purchased
from the Company hereunder is not subject to preemptive rights.
(viii) Each of the Company and its subsidiaries have been duly
incorporated or formed, as the case may be, and is a validly existing
real estate investment trust, corporation, general or limited
partnership, or other legal entity, as the case may be, in good standing
under the laws of the state or other jurisdiction in which it is
incorporated or formed, as the case may be. The Company and its
subsidiaries have full power and authority (corporate and other) to own,
lease and operate their properties and conduct their businesses as
described in the Prospectus; each of the Company and its subsidiaries is
duly qualified or registered to do business and is in good standing in
each state or other jurisdiction in which its ownership or leasing of
property or conduct of business legally requires such qualification,
except where the failure to be so qualified would not have a material
adverse effect on the ability of the Company and its subsidiaries to
conduct its or their business as described in the Prospectus; and the
outstanding shares of capital stock or ownership interests of the
Company's subsidiaries have been duly authorized and validly issued, are
fully paid and nonassessable and are owned by the Company free and clear
of any mortgage, pledge, lien, encumbrance, charge or adverse claim and
are not the subject of any agreement or understanding with any person;
except as disclosed in the Registration Statement and other than
pursuant to the Company's Stock Option Plan, the Restricted Stock
Incentive Plan, the Director Stock Plan, immaterial options granted to
consultants and the Dividend Reinvestment and Stock Purchase Plan, no
options, warrants or other rights to purchase, agreement or other
obligations to issue or other rights to convert any obligations into
shares of capital stock or ownership interest in the subsidiaries are
outstanding.
(ix) Coopers & Xxxxxxx L.L.P., the accounting firm which has
certified the financial statements filed with or incorporated by
reference in and as a part of the Registration Statement, is an
independent public accounting firm within the meaning of the Act and the
Rules and Regulations.
(x) The consolidated financial statements of the Company
together with the related schedules and notes thereto, set forth or
included or incorporated by reference in the Registration Statement and
Prospectus fairly present the financial condition of the Company and its
consolidated subsidiaries as of the dates indicated and the results of
operations, changes in financial position, shareholders' equity and cash
flows for the periods therein specified, in conformity with generally
accepted accounting principles consistently applied throughout the
periods involved (except as otherwise
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stated therein). The summary and selected financial and statistical
data included or incorporated by reference in the Registration Statement
and the Prospectus present fairly the information shown therein and, to
the extent based upon or derived from the financial statements, have
been compiled on a basis consistent with the financial statements
presented therein. In addition, the pro forma financial statements of
the Company, and the related notes thereto, included or incorporated by
reference in the Registration Statement and the Prospectus present
fairly the information shown therein, have been prepared in accordance
with the Commission's rules and guidelines with respect to pro forma
financial statements and have been properly compiled on the basis
described therein, and the assumptions used in the preparation thereof
are reasonable and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to therein.
Furthermore, all financial statements required by Rule 3-14 of
Regulation S-X ("RULE 3-14") have been included or incorporated by
reference in the Registration Statement and the Prospectus and any such
financial statements are in conformity with the requirements of Rule
3-14. No other financial statements are required to be set forth or to
be incorporated by reference in the Registration Statement or the
Prospectus under the Act or the Rules and Regulations thereunder.
(xi) Neither the Company nor any subsidiary is in default with
respect to any contract or agreement to which it is a party; PROVIDED
that this representation shall not apply to defaults which in the
aggregate are not materially adverse to the condition, financial or
other, or the business or prospects of the Company and its subsidiaries
taken as a whole.
(xii) Neither the Company nor any subsidiary is in violation of
any other laws, ordinances or governmental rules or regulations to which
it is subject, including, without limitation, Section 13 of the Exchange
Act, and neither the Company nor any subsidiary has failed to obtain any
license, permit, franchise, easement, consent, or other governmental
authorization necessary to the ownership, leasing and operation of its
properties or to the conduct of its business, which violation or failure
would materially adversely affect the business, operations, affairs,
properties, prospects, profits or condition (financial or other) of the
Company and its subsidiaries taken as a whole. Neither the Company nor
any subsidiary has, at any time during the past five years, (A) made any
unlawful contributions to any candidate for any political office, or
failed fully to disclose any contribution in violation of law, or (B)
made any payment to any state, federal or foreign government official,
or other person charged with similar public or quasi-public duty (other
than payment required or permitted by applicable law).
(xiii) There are no holders of securities of the Company having
rights to registration thereof or preemptive rights to purchase Common
Stock of the Company except as disclosed in the Registration Statement.
Holders of registration rights have waived such rights with respect to
the offering being made by the Prospectus.
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(xiv) Except as described in the Registration Statement, the
Company and its subsidiaries own or possess, or can acquire on
reasonable terms, adequate patents, patent licenses, trademarks, service
marks and trade names necessary to conduct the business now operated by
them, and neither the Company nor any subsidiary has received any notice
of infringement of or conflict with asserted rights of others with
respect to any patents, patent licenses, trademarks, service marks or
trade names which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would materially adversely
affect the business, operations, affairs, properties, prospects, profits
or condition (financial or other) of the Company and its subsidiaries
taken as a whole.
(xv) The Company and each of its subsidiaries has good and
marketable title to all properties and assets described in the
Registration Statement as owned by it, free and clear of all liens,
charges, encumbrances or restrictions, except such as (i) are described
in the Registration Statement or (ii) are not material to the business
of the Company or its subsidiaries, taken as a whole. The Company and
each of its subsidiaries has valid, subsisting and enforceable leases
for the properties described in the Prospectus as leased by it, with
such exceptions as are not material and do not materially interfere with
the use made and proposed to be made of such properties by the Company
and such subsidiaries; except as described in the Registration
Statement, no tenant under any of the leases pursuant to which the
Company leases its properties has an option or right of first refusal to
purchase the premises demised under such lease; to the Company's
knowledge, the use and occupancy of each of the properties of the
Company complies in all material respects with all applicable codes and
zoning laws and regulations, except for such failures to comply which
would not individually or in the aggregate have a material adverse
effect on the business of the Company and its subsidiaries, taken as a
whole; the Company has no knowledge of any pending or threatened
condemnation or zoning change that will in any material respect affect
the size of, use of, improvements of, construction on, or access to any
of the properties of the Company; and the Company has no knowledge of
any pending or threatened proceeding or action that will in any manner
materially affect the size of, use of, improvements on, construction on,
or access to any of the properties of the Company.
(xvi) Title insurance in favor of the Company (or the subsidiary
which holds title to such property) is maintained with respect to each
of the properties owned by the Company in an amount at least equal to
the greater of (i) the cost of acquisition of such property of (ii) the
cost of construction by the Company of the improvements located on such
property (measured at the time of such construction), except, in each
case, where the failure to maintain such title insurance would not
materially adversely affect the business, operations, affairs,
properties, prospects, profits or conditions (financial or other) of the
Company and its subsidiaries taken as a whole. Title insurance in favor
of the mortgagee is maintained in an amount equal to the maximum
commitment of the related loan.
(xvii) There has been no storage, disposal, generation,
manufacture, refinement, transportation, handling or treatment of any
material by the Company or any of its
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subsidiaries or, to the Company's knowledge, any of their predecessors
in interest at, upon or from any of the properties now or previously
owned or leased by the Company or its subsidiaries or any of their
predecessors in interest in violation of any applicable law, ordinance,
rule, regulation, order, judgment, decree or permit or which would
require remedial action damages or the modification or cessation of any
activity of the Company or any of its subsidiaries under any applicable
law, common law, ordinance, rule, regulation, order, judgment, decree or
permit, except for any violation, remedial action, damages, modification
or cessation which would not have, singly or in the aggregate with all
such violations, remedial actions, damages, modifications or cessations,
a material adverse effect on the general affairs, management, financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries; and there has been no material spill, discharge,
leak, emission, injection, escape, dumping, migration or release of any
kind onto such property or into the environment surrounding such
property except for any such spill, discharge, leak, emission,
injection, escape, dumping or release which would not have, singly or in
the aggregate with all such spills, discharges, leaks, emissions,
injections, escapes, dumpings and releases, a material adverse effect on
the general affairs, management, financial position, shareholders'
equity or results of operations of the Company and its subsidiaries.
(xviii) No labor disturbance exists with the employees of the
Company or its subsidiaries or is imminent which would materially
adversely affect the business, operations, affairs, properties, profits
or condition (financial or other) of the Company and its subsidiaries
taken as a whole.
(xix) The Company has not taken and will not take, directly or
indirectly, any action designed to or which might reasonably be expected
to cause or result in stabilization or manipulation of the price of the
Common Stock, and the Company is not aware of any such action taken or
to be taken by affiliates of the Company.
(xx) The Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(xxi) The mortgages and deeds of trust encumbering the properties
and assets described in the Registration Statement are not convertible.
(xxii) Property and casualty insurance in favor of the Company is
maintained with respect to each of the properties owned by it in an
amount and on such terms as is reasonable and customary for businesses
of this type.
(xxiii) The Company has continuously been organized and operated in
conformity with the requirements for qualification as a real estate
investment trust under the Internal Revenue Code of 1986, as amended
(the "CODE") for all taxable years commencing with its taxable year
ended December 31, 1994. The Company has filed an election to be taxed
as a real estate investment trust for all subsequent taxable
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years, and no such election has been terminated. The Company's method
of operation will permit it to continue to meet the requirements for
taxation as a real estate investment trust under the Code. The Company
intends to continue to operate in a manner which would permit it to
qualify as a real estate investment trust under the Code.
(xxiv) Except as disclosed in the Prospectus, each entity
identified in the Prospectus as a tenant of any property, or a subtenant
thereof, has entered into a lease or a sublease, if applicable, for the
possession of such property; except as disclosed in the Prospectus, each
such lease is in full force and effect and neither the Company nor any
of its subsidiaries has notice of any defense to the obligations of the
tenant thereunder or any claim asserted or threatened by any person or
entity, which lease, defense or claim, if violated, employed or
sustained, respectively, would materially adversely affect the business,
operations, affairs, properties, profits or condition (financial or
other) of the Company and its subsidiaries taken as a whole; and except
as disclosed in the Prospectus, the lessor under each lease has complied
with its obligations under such lease the violation of which would
materially adverse affect the business, operations, affairs, properties,
profits or condition (financial or other) of the Company and its
subsidiaries taken as a whole and neither the Company nor any of its
subsidiaries has notice of any default by the tenant under such lease
which, individually or in the aggregate with other such defaults,
materially adversely affect the business, operations, affairs,
properties, profits or condition (financial or other) of the Company and
its subsidiaries taken as a whole.
(xxv) Any certificate signed by any officer of the Company and
delivered to you or to your counsel shall be deemed a representation and
warranty by the Company to you as to the matters covered thereby.
(xxvi) A registration statement relating to the Common Stock of
the Company has been declared effective by the Commission pursuant to
the Exchange Act and the Common Shares of the Company are duly
registered thereunder. The Shares have been listed on the New York
Stock Exchange, subject to notice of issuance or sale of the Shares, as
the case may be.
4. ADDITIONAL COVENANTS. The Company covenants and agrees with you that:
(a) The Company will prepare a Prospectus Supplement setting forth
the number of Shares covered thereby and their terms not otherwise
specified in the Prospectus pursuant to which the Shares are being issued,
the name of the Underwriter and the number of Shares which the Underwriter
has agreed to purchase, the price at which the Shares are to be purchased
by the Underwriter from the Company and such other information as the
Underwriter and the Company deem appropriate in connection with the
offering of the Shares, and file the Prospectus in a form approved by you
pursuant to Rule 424(b) under the Act no later than the Commission's close
of business on the second business day following the date of the
determination of the offering price of the Shares.
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(b) The Company will advise you promptly, after it shall receive
notice or obtain knowledge thereof, of any request of the Commission for
amendment of the Registration Statement or for supplement to the Prospectus
or for any additional information, or of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement
or the use of the Prospectus or of the institution or threatening of any
proceedings for that purpose, and the Company will use its best efforts to
prevent the issuance of any such stop order preventing or suspending the
use of the Prospectus and to obtain as soon as possible the lifting
thereof, if issued.
(c) The Company will cooperate with you and your counsel in
endeavoring to qualify the Shares for sale under the securities laws of
such jurisdictions as they may have designated and will make such
applications, file such documents, and furnish such information as may be
necessary for that purpose, PROVIDED the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction where it is not now so qualified or required to
file such a consent or to subject itself to taxation as doing business in
any jurisdiction where it is not now so taxed. The Company will, from time
to time, file such statements, reports, and other documents, as are or may
be required to continue such qualifications in effect for so long a period
as you may reasonably request.
(d) The Company will deliver to you, without charge as many copies of
the Prospectus (including all documents incorporated by reference therein),
or as it thereafter may be amended or supplemented, as you may from time to
time reasonably request. The Company consents to the use of such
Prospectus by you, both in connection with the offering or sale of the
Shares and for such other purposes and for such period of time thereafter
as the Prospectus is required by law to be delivered in connection with the
offering or sale of the Shares. The Company will deliver to you at or
before the Closing Date one conformed copy of the Registration Statement
and all amendments thereto including all exhibits filed therewith or
incorporated by reference therein and all documents incorporated by
reference in the Prospectus and will deliver to you such number of copies
of the Registration Statement, without exhibits, and of all amendments
thereto, as you may reasonably request.
(e) If, during the period in which a prospectus is required by law to
be delivered by an underwriter or dealer, any event shall occur as a result
of which, in the judgment of the Company or in your judgment or in the
opinion of your counsel, it becomes necessary to amend or supplement the
Prospectus in order to make the statements therein, in light of the
circumstances existing at the time the Prospectus is delivered to a
purchaser, not misleading, or, if it is necessary at any time to amend or
supplement the Prospectus to comply with any law, the Company promptly will
prepare and file with the Commission an appropriate amendment to the
Registration Statement or supplement to the Prospectus so that the
Prospectus as so amended or supplemented will not, in the light of the
circumstances when it is so delivered, be misleading, or so that the
Prospectus will comply with law.
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(f) The Company will make generally available to its shareholders and
will file as an exhibit in a report pursuant to the Exchange Act, as soon
as it is practicable to do so, but in any event not later than 15 months
after the effective date of the Registration Statement, an earnings
statement in reasonable detail, covering a period of at least 12
consecutive months beginning after the effective date of the Registration
Statement, which earnings statement shall satisfy the requirements of
Section 11(a) of the Act and Rule 158 of the Rules and Regulations and will
advise you in writing when such statement has been so made available.
(g) The Company will, for a period of five years from the Closing
Date, deliver to you at your principal executive offices a reasonable
number of copies of annual reports, quarterly reports, current reports and
copies of all other documents, reports and information furnished by the
Company to its shareholders or filed with any securities exchange pursuant
to the requirements of such exchange or with the Commission pursuant to the
Act or the Exchange Act. The Company will deliver to you similar reports
with respect to any significant subsidiaries, as that term is defined in
the Rules and Regulations, which are not consolidated in the Company
financial statements. Any report, document or other information required
to be furnished under this paragraph (g) shall be furnished as soon as
practicable after such report, document or information becomes available.
(h) The Company will apply the proceeds from the sale of the Shares
as set forth in the description under "Use of Proceeds" in the Prospectus,
which description complies in all respects with the requirements of Item
504 of Regulation S-K.
(i) The Company will supply you with copies of all correspondence to
and from, and all documents issued to and by, the Commission in connection
with the registration of the Shares under the Act.
(j) Prior to the Closing Date, the Company will furnish to you, as
soon as they have been prepared, copies of any unaudited interim
consolidated financial statements of the Company and its subsidiaries for
any periods subsequent to the periods covered by the financial statements
appearing in the Registration Statement and the Prospectus.
(k) The Company will use its best efforts to obtain approval for, and
maintain the listing of the Shares on, the New York Stock Exchange.
(l) The Company and its subsidiaries will maintain and keep accurate
books and records reflecting their assets and maintain internal accounting
controls which provide reasonable assurance that (1) transactions are
executed in accordance with management's authorization, (2) transactions
are recorded as necessary to permit the preparation of the Company's
consolidated financial statements and to maintain accountability for the
assets of the Company and its subsidiaries, (3) access to the assets of the
Company and its subsidiaries is permitted only in accordance with
-11-
management's authorization, and (4) the recorded accounts of the assets of
the Company and its subsidiaries are compared with existing assets at
reasonable intervals.
(m) During any period in which a prospectus is required by law to be
delivered by an Underwriter or dealer, the Company will promptly file all
documents required to be filed with the Commission pursuant to Sections 13,
14 or 15(d) of the Exchange Act.
(n) The Company will continue to elect to qualify as a "real estate
investment trust" under the Code, and will use its best efforts to continue
to meet the requirements to qualify as a "real estate investment trust."
5. CONDITIONS OF UNDERWRITER'S OBLIGATION. Your obligations, as
Underwriter to purchase and pay for the Shares, as provided herein, shall be
subject to the accuracy in all material respects, as of the dare hereof and as
of the Closing Date, of the representations and warranties of the Company
contained herein, to the performance in all material respects by the Company of
its covenants and obligations hereunder, and to the following additional
conditions:
(a) All filings required by Rule 424 of the Rules and Regulations
shall have been made. No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been
issued and no proceeding for that purpose shall have been initiated or, to
your knowledge or the knowledge of the Company, threatened or contemplated
by the Commission, and any request of the Commission for additional
information (to be included in the Registration Statement or the Prospectus
or otherwise) shall have been complied with to your reasonable
satisfaction.
(b) You shall not have disclosed in writing to the Company on or
prior to the Closing Date, that the Registration Statement or Prospectus or
any amendment or supplement thereto contains an untrue statement of fact
which, in the opinion of your counsel, is material, or omits to state a
fact which, in the opinion of such counsel, is material and is required to
be stated therein or is necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading.
(c) On the Closing Date, you shall have received the opinion of
Ungaretti & Xxxxxx, counsel for the Company, and Xxxxxx, Feinblatt,
Rothman, Hoffberger & Xxxxxxxxx, LLC, special Maryland counsel to the
Company, addressed to you and dated the Closing Date, as to the matters set
forth in Schedule I attached hereto.
(d) You shall have received on the Closing Date, from Xxxxxxx and
Xxxxxx, your counsel, such opinion or opinions, dated the Closing Date with
respect to the incorporation of the Company, the validity of the Shares,
the Registration Statement, the Prospectus and other related matters as you
may reasonably require; the Company shall have furnished to such counsel
such documents as they reasonably request for the purpose of enabling them
to pass on such matters.
-12-
(e) You shall have received at or prior to the Closing Date from
Xxxxxxx and Xxxxxx a memorandum or memoranda, in form and substance
satisfactory to you, with respect to the qualification for offering and
sale by you of the Shares under state securities or Blue Sky laws of such
jurisdictions as you may have designated to the Company.
(f) On the date of this Agreement and on the Closing Date, you shall
have received from Coopers & Xxxxxxx L.L.P., a letter or letters, dated the
date of this Agreement and the Closing Date, respectively, in form and
substance satisfactory to you, confirming that they are independent public
accountants with respect to the Company within the meaning of the Act and
the published Rules and Regulations, and stating to the effect set forth in
Schedule II hereto.
(g) Except as contemplated in the Prospectus, (i) neither the Company
nor any of its subsidiaries shall have sustained since the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree;
and (ii) subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, neither the Company
nor any of its subsidiaries shall have incurred any liability or
obligation, direct or contingent, or entered into transactions, and there
shall not have been any change in the capital stock or long-term debt of
the Company and its subsidiaries or any change in the condition (financial
or other), net worth, business, affairs, management, prospects or results
of operations of the Company or its subsidiaries, the effect of which, in
any such case described in clause (i) or (ii), is in your judgment so
material or adverse as to make it impracticable or inadvisable to proceed
with the public offering or the delivery of the Shares being delivered on
the Closing Date on the terms and in the manner contemplated in the
Prospectus.
(h) There shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the
New York Stock Exchange or the American Stock Exchange or the establishing
on such exchanges by the Commission or by such exchanges of minimum or
maximum prices which are not in force and effect on the date hereof; (ii) a
general moratorium on commercial banking activities declared by either
federal or state authorities; (iii) the outbreak or escalation of
hostilities involving the United States or the declaration by the United
States of a national emergency or war, if the effect of any such event
specified in this clause (iii) in your judgment makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Shares in the manner contemplated in the Prospectus; (iv) any calamity or
crisis, change in national, international or world affairs, act of God,
change in the international or domestic markets, or change in the existing
financial, political or economic conditions in the United States or
elsewhere, if the effect of any such event specified in this clause (iv)
makes it impracticable or inadvisable to proceed with the public offering
or the delivery of the Shares in the manner contemplated in the Prospectus;
or (v) the enactment, publication, decree, or
-13-
other promulgation of any federal or state statute, regulation, rule, or
order of any court or other governmental authority, or the taking of any
action by any federal, state or local government or agency in respect of
fiscal or monetary affairs, if the effect of any such event specified in
this clause (v) in your judgment makes it impracticable or inadvisable
to proceed with the public offering or the delivery of the Shares in the
manner contemplated in the Prospectus.
(i) You shall have received certificates, dated the Closing Date and
signed by the President and the Chief Financial Officer of the Company
stating that (i) they have carefully examined the Registration Statement
and the Prospectus as amended or supplemented and all documents
incorporated by reference therein and nothing has come to their attention
that would lead them to believe that either the Registration Statement or
the Prospectus, or any amendment or supplement thereto or any documents
incorporated by reference therein as of their respective effective, issue
or filing dates, contained, and the Prospectus as amended or supplemented
and all documents incorporated by reference therein and when read together
with the documents incorporated by reference therein, at the Closing Date,
contains any untrue statement of a material fact, or omits to state a
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading, and, that (ii) all representations and warranties
made herein by the Company are true and correct in all material respects at
the Closing Date, with the same effect as if made on and as of the Closing
Date, and all agreements herein to be performed by the Company on or prior
to the Closing Date have been duly performed in all material respects.
(j) The Company shall not have failed, refused, or been unable, at or
prior to the Closing Date to have performed in all material respects any
agreement on their part to be performed or any of the conditions herein
contained and required to be performed or satisfied by them at or prior to
the Closing Date.
(k) The Company shall have furnished to you at the Closing Date such
other certificates as you may have reasonably requested as to the accuracy,
on and as of the Closing Date, of the representations and warranties of the
Company herein and as to the performance by the Company of their
obligations hereunder.
(l) The Shares shall have been approved for trading, subject to
official notice of issuance, on the New York Stock Exchange.
All such opinions, certificates, letters and documents will be in
compliance with the provisions hereof only if they are reasonably satisfactory
to you and to Xxxxxxx and Xxxxxx, your counsel. The Company will furnish you
with such conformed copies of such opinions, certificates, letters and documents
as you may request.
If any of the conditions specified above in this Section 5 shall not have
been satisfied at or prior to the Closing Date or waived by you in writing, this
Agreement may be terminated by you on notice to the Company.
-14-
6. INDEMNIFICATION. (a) The Company will indemnify and hold you harmless
and each person, if any, who controls you within the meaning of the Act, against
any losses, claims, damages or liabilities, joint or several, to which you or
such controlling person may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or any amendment or supplement thereto, or in any
blue sky application or other document executed by the Company or based on any
information furnished in writing by the Company, filed in any jurisdiction in
order to qualify any or all of the Shares under the securities laws thereof
("BLUE SKY APPLICATION"), or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; and will reimburse you and each such
controlling person for any legal or other expenses reasonably incurred by you or
such controlling person in connection with investigating or defending any such
loss, claim, damage, liability or action; PROVIDED, HOWEVER, that the Company
shall not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement, such Preliminary Prospectus or the Prospectus, or such
amendment or supplement, or any Blue Sky Application in reliance upon and in
conformity with written information furnished to the Company by you,
specifically for use in the preparation thereof; and PROVIDED, FURTHER, that if
any Preliminary Prospectus or the Prospectus contained any alleged untrue
statement or allegedly omitted to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading and
such statement or omission shall have been corrected in a revised Preliminary
Prospectus or in the Prospectus or in an amended or supplemented Prospectus, the
Company shall not be liable to you or controlling persons under this
subsection (a) with respect to such alleged untrue statement or alleged omission
to the extent that any such loss, claim, damage or liability of such person
results from the fact that you sold Shares to a person to whom there was not
sent or given, at or prior to the written confirmation of such sale, such
revised Preliminary Prospectus or Prospectus or amended or supplemented
Prospectus. In addition to its other obligations under this Section 6(a), the
Company agrees that, as an interim measure during the pendency of any claim,
action, investigation, inquiry or other proceeding arising out of or based upon
any statement or omission, or any alleged statement or omission, described in
this Section 6(a), it will reimburse you on a monthly basis for all reasonable
legal and other expenses incurred in connection with investigating or defending
any such claim, action, investigation, inquiry or other proceeding,
notwithstanding the absence of a judicial determination as to the propriety and
enforceability of the Company's obligation to reimburse you for such expenses
and the possibility that such payments might later be held to have been improper
by a court of competent jurisdiction. This indemnity agreement shall be in
addition to any liabilities which the Company may otherwise have.
(b) You will indemnify and hold harmless the Company, each of its
directors, each of its officers who have signed the Registration Statement and
each person, if any, who controls the Company within the meaning of the Act,
against any losses, claims, damages or
-15-
liabilities, joint or several, to which the Company or any such director,
officer or controlling person may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration
Statement, any Preliminary Prospectus, the Prospectus, any amendment or
supplement thereto, or any Blue Sky Application or arise out of or are based
upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, in
each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in the
Registration Statement, such Preliminary Prospectus or the Prospectus, such
amendment or supplement, or any Blue Sky Application in reliance upon and in
conformity with written information furnished to the Company by you
specifically for use in the preparation thereof; and will reimburse any legal
or other expenses reasonably incurred by the Company or any such director,
officer or controlling person in connection with investigating or defending
any such loss, claim, damage, liability or action. In addition to your other
obligations under this Section 6(b), you agree that, as an interim measure
during the pendency of any claim, action, investigation, inquiry or other
proceeding arising out of or based upon any statement or omission, or any
alleged statement or omission, described in this Section 6(b), you will
reimburse the Company on a monthly basis for all reasonable legal and other
expenses incurred in connection with investigating or defending any such
claim, action, investigation, inquiry or other proceeding, notwithstanding
the absence of a judicial determination as to the propriety and
enforceability of your obligation to reimburse the Company for such expenses
and the possibility that such payments might later be held to have been
improper by a court of competent jurisdiction. This indemnity agreement
shall be in addition to any liabilities which you may otherwise have.
(c) Any party which proposes to assert the right to be indemnified under
this Section 6 shall, within ten days after receipt of notice of commencement of
any action, suit or proceeding against such party in respect of which a claim is
to be made against an indemnifying party under this Section 6, notify each such
indemnifying party of the commencement of such action, suit or proceeding,
enclosing a copy of all papers served, but the omission so to notify such
indemnifying party of any such action, suit or proceeding shall not relieve such
indemnifying party from any liability which it may have to any indemnified party
otherwise than under this Section 6. In case any such action, suit or
proceeding shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party shall
be entitled to participate in, and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party for any legal or other expenses, other than
reasonable costs of investigation, subsequently incurred by such indemnified
party in connection with the defense thereof. The indemnified party shall have
the right to employ its own counsel in any such action, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless (i) the employment of counsel by such indemnified party at the
-16-
expense of the indemnifying party has been authorized by the indemnifying
party, (ii) the indemnified party shall have been advised by such counsel in
a written opinion that there may be a conflict of interest between the
indemnifying party and the indemnified party in the conduct of the defense,
or certain aspects of the defense, of such action (in which case the
indemnifying party shall not have the right to direct the defense of such
action with respect to those matters or aspects of the defense on which a
conflict exists or may exist on behalf of the indemnified party) or (iii) the
indemnifying party shall not in fact have employed counsel to assume the
defense of such action, in any of which events such fees and expenses to the
extent applicable shall be borne by the indemnifying party. An indemnifying
party shall not be liable for any settlement of any action or claim effected
without its consent. Each indemnified party, as a condition of such
indemnity, shall cooperate in good faith with the indemnifying party in the
defense of any such action or claim.
(d) If the indemnification provided for in this Section 6 is for any
reason, other than pursuant to the terms thereof, judicially determined (by the
entry of a final judgment or decree by a court of competent jurisdiction and the
expiration of time to appeal or the denial of the last right to appeal) to be
unavailable to an indemnified party under subsections (a) or (b) above in
respect of any losses, claims, damages or liabilities (or actions in respect
thereof) referred to therein, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative benefits received by the Company and you from the
offering of the Shares. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law, then each indemnifying
party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault, as applicable, of the Company and you in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as other relevant
equitable considerations. The relative benefits received by, as applicable, the
Company and you shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by you, in
each case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other things, whether
the untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company or you and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and you agree
that it would not be just and equitable if contributions pursuant to this
subsection (d) were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this subsection (d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), you shall not be required
to contribute any amount in excess of the underwriting discounts and commissions
applicable to the Shares
-17-
purchased by you. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
7. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties, and agreements of the Company contained herein or
in certificates delivered pursuant hereto, and your agreements contained in
Section 6 hereof, shall remain operative and in full force and effect regardless
of any termination or cancellation of this Agreement or any investigation made
by or on behalf of you or any controlling person, the Company or any of its
officers, directors or any controlling persons, and shall survive delivery of
the Shares to you hereunder.
8. EFFECTIVE DATE AND TERMINATION. (a) This Agreement shall become
effective upon execution.
(b) This Agreement may be terminated by you at any time at or prior to the
Closing Date by notice to the Company if any condition specified in Section 5
hereof shall not have been satisfied on or prior to the Closing Date. Any such
termination shall be without liability of any party to any other party except as
provided in Sections 6 and 9 hereof.
If you terminate this Agreement as provided in Sections 8(b), you shall
notify the Company by telephone or telegram, confirmed by letter.
9. COST AND EXPENSES. The Company will bear and pay the costs and
expenses incident to the registration of the Shares and public offering thereof,
including, without limitation, (a) the fees and expenses of the Company's
accountants and the fees and expenses of counsel for the Company, (b) the
preparation, printing, filing, delivery and shipping of the Registration
Statement, the Prospectus, and any amendments or supplements thereto (c) the
furnishing of copies of such documents to you, (d) the registration or
qualification of the Shares for offering and sale under the securities laws of
the various states, including the reasonable fees and disbursements of your
counsel relating to such registration or qualification, (e) the fees payable to
the NASD (if any) and the Commission in connection with their review of the
proposed offering of the Shares, (f) all printing and engraving costs related to
preparation of the certificates for the Shares, including transfer agent and
registrar fees, (g) all initial transfer taxes, if any, (h) all fees and
expenses relating to the authorization of the Shares for trading on the New York
Stock Exchange, (i) all travel expenses, including air fare and accommodation
expenses, of representatives of the Company in connection with the offering of
the Shares and (j) all of the other costs and expenses incident to the
performance by the Company of the registration and offering of the Shares;
PROVIDED, HOWEVER, that you will bear and pay the fees and expenses of your
counsel (other than fees and disbursements relating to the registration or
qualification of the Shares for offering and sale under the securities laws of
the various states), your out-of-pocket expenses, and any advertising costs and
expenses incurred by you incident to the public offering of the Shares.
-18-
If this Agreement is terminated by you in accordance with the provisions of
Section 8(b), the Company shall reimburse you for all of your out-of-pocket
expenses, including the reasonable fees and disbursements of your counsel.
10. NOTICES. All notices or communications hereunder, except
as herein otherwise specifically provided, shall be in writing and if sent to
you shall be mailed, delivered, sent by facsimile transmission, or
telegraphed and confirmed c/o EVEREN Securities, Inc. at 00 Xxxx Xxxxxx
Xxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Syndicate, facsimile number
(000) 000-0000, or if sent to the Company shall be mailed, delivered, sent by
facsimile transmission, or telegraphed and confirmed to the Company at 000
Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, facsimile number
(312) 456 -7696.
11. PARTIES. This Agreement shall inure to the benefit of
and be binding upon you and the Company and their respective successors and
assigns. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, corporation or other entity, other
than the parties hereto and their respective successors and assigns and the
controlling persons, officers and directors referred to in Section 6, any
legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained; this Agreement and all
conditions and provisions hereof being intended to be and being for the sole
and exclusive benefit of the parties hereto and their respective successors
and assigns and said controlling persons and said officers and directors, and
for the benefit of no other person, corporation or other entity. No
purchaser of any of the Shares from you shall be construed a successor or
assign by reason merely of such purchase.
12. COUNTERPARTS. This Agreement may be executed by any one
or more of the parties hereto in any number of counterparts, each of which
shall be deemed to be an original, but all such counterparts shall together
constitute one and the same instrument.
13. PRONOUNS. Whenever a pronoun of any gender or number is
used herein, it shall, where appropriate, be deemed to include any other
gender and number.
14. APPLICABLE LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Illinois.
-19-
If the foregoing is in accordance with your understanding,
please so indicate in the space provided below for that purpose, whereupon
this letter shall constitute a binding agreement between the Company and you.
CENTERPOINT PROPERTIES TRUST
By: /s/ XXXX X. XXXXXX
------------------------------------
Title: Chief Financial Officer
Accepted and Confirmed
as of the date first above written.
EVEREN Securities, Inc.
By: /s/ XXX X. XXXXX
-------------------------------
Title: Managing Director
-20-
SCHEDULE 1
(1) Each of the Company and its wholly-owned subsidiaries has
been duly organized and is validly existing and in good standing under the
laws of its jurisdiction of organization; each is duly qualified to transact
business as a foreign organization and is in good standing under the laws of
all other jurisdictions where the laws of such jurisdictions, based on the
Company's and such subsidiary's ownership and leasing of property, require
such qualification, except where the failure to be so qualified does not
amount to a material liability or disability to the Company and the
subsidiaries, taken as a whole; and each has the requisite power and
authority to own or lease its properties and conduct its business as
described in the Registration Statement and the Prospectus.
(2) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of beneficial interest in the
Company have been duly and validly authorized, are fully paid and
non-assessable and conform to the description thereof contained in the
Prospectus; and all of the issued shares of capital stock of each subsidiary
of the Company have been duly and validly authorized and issued, are fully
paid and non-assessable and, except for CenterPoint Realty Services
Corporation, an Illinois corporation, and its subsidiaries, are
majority-owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims.
(3) The unissued Shares to be issued and sold by the Company
to the Underwriter, have been duly and validly authorized and when issued and
delivered against payment therefor, will be duly and validly issued, fully
paid and non-assessable and will conform to the description thereof contained
in the Prospectus.
(4) The registration statement filed on December 19, 1996, as
amended by Post-Effective Amendment No. 1 filed on October 15, 1997, was
declared effective under the Securities Act on October 23, 1997 (the
"Registration Statement"), and, to our knowledge after due inquiry, no stop
order suspending the effectiveness of the Registration Statement, and no
order directed at any amendment or supplement thereto has been issued, and no
proceedings for that purpose have been instituted or threatened or are
contemplated by the Commission.
(5) Except as described in the Registration Statement, there
are no preemptive rights to subscribe for or to purchase, nor any restriction
upon voting or transfer of, any Shares pursuant to the Company's declaration
of trust or by-laws or any other instrument known to such counsel.
(6) To the best of such counsel's knowledge, (a) there are no
legal or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property or assets of the Company or
any of its subsidiaries is the subject, which, if determined adversely to the
Company or any of its subsidiaries, might have a material adverse effect on
the consolidated financial position, shareholders' equity, results of
operations, business or prospects of the Company and its subsidiaries, and
(b) no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others.
(7) The Registration Statement and the Prospectus, including
the documents incorporated by reference in the Prospectus (in each case, not
including the financial statements and related schedules incorporated by
reference therein, as to which we express no opinion) comply as to form in
all material respects with the requirements of the Securities Act or the
Exchange Act and the Rules and Regulations thereunder.
(8) The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
(9) The statements contained in the Prospectus under the
captions "Description of Debt Securities," "Description of Shares of
Beneficial Interest," "Description of Securities Warrants," "Federal Income
Tax Considerations" and "ERISA Considerations Relating to the Company's REIT
Election," "Taxation of Stockholders," and "Certain Provisions of Maryland
Law and the Company's Declaration of Trust and Bylaws," and in each case
insofar as such statements constitute summaries of legal matters, documents
or proceedings, constitute a fair summary thereof.
(10) To the best of such counsel's knowledge, there are no
contracts or other documents which are required to be described in the
Prospectus or filed as exhibits to the Registration Statement by the
Securities Act or by the Rules and Regulations thereunder which have not been
described or filed as exhibits to the Registration Statement or incorporated
therein by reference as permitted by said Rules and Regulations.
(11) Except as disclosed in the Registration Statement, to our
knowledge, there are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the Company
to file a registration statement under the Securities Act with respect to any
securities of the Company owned or to be owned by such person or to require
the Company to include such securities in the securities registered pursuant
to the Registration Statement or in any securities being registered pursuant
to any other registration statement filed by the Company under the Securities
Act.
(12) Neither the Company nor any subsidiary is an "investment
company" within the meaning of such term under the United States Investment
Company Act of 1940 and the rules and regulations thereunder.
(13) The issue and sale of the Shares being sold pursuant to
the Underwriting Agreement and the compliance by the Company and its
subsidiaries with all of the provisions of the Underwriting Agreement and the
consummation of the transactions contemplated thereby have been duly
authorized by all necessary action and did not and will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any of the properties or assets of the
Company or any of its subsidiaries pursuant to any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument
-2-
known to such counsel to which the Company or any of its subsidiaries is a
party or by Company or any of its subsidiaries is bound or to which any of
the property or assets of the Company or any of its subsidiaries is subject,
nor did or will such actions result in any violation of the provisions of the
declaration of trust or by-laws of the Company or the charter or by-laws of
any of its subsidiaries, or of any statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties or assets; and,
except for the registration of the Shares under the Securities Act and such
consents, approvals, authorizations, registrations or qualifications as may
be required under the Exchange Act and applicable state securities laws in
connection with the distribution of the Shares by the Underwriters, no
consent, approval, authorization or order of, or filing or registration with,
any such court or governmental agency or body was or is required for the
execution, delivery and performance of the Underwriting Agreement by the
Company and the consummation of the transactions contemplated thereby.
(14) The Company is organized in conformity with the
requirements for qualification as a REIT under the Code.
(15) The Company has met the requirements to qualify as a REIT
for its taxable years ending prior to the date hereof. If results of
operations for its current taxable year and subsequent taxable years are in
accordance with expectations set forth in the Officer's Certificate, the
Registration Statement and the Prospectus Supplement, the Company will
continue to so qualify.
Such counsel should state that, during the course of the preparation of the
Registration Statement and Prospectus, such counsel participated in
conferences with officers and representatives of the Company, and the
Company's independent public accountants at which the contents of the
Registration Statement and Prospectus and related matters were discussed. On
that basis, such counsel shall state that they have no reason to believe that
the Registration Statement, as of its effective date and as of the date
hereof, contained or contains any untrue statement of a material fact or
omitted or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, or that the
Prospectus, as of its date or the date hereof included or includes any untrue
statement of a material fact or omitted or omits to state a material fact in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
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SCHEDULE II
Pursuant to Section 5(f) of the Underwriting Agreement,
Coopers & Xxxxxxx L.L.P. shall furnish letters to you to the effect that:
(i) They are independent certified public accountants
with respect to the Company and its subsidiaries within the
meaning of the Act and the applicable Rules and Regulations
thereunder.
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited
(and, if applicable, prospective financial statements and/or
pro forma financial information examined) by them and included
or incorporated by reference in the Prospectus or the
Registration Statement comply as to form in all material
respects with the applicable accounting requirements of the
Act and the applicable Rules and Regulations with respect to
registration statements on Form S-3; and, if applicable, they
have made a review in accordance with standards established by
the American Institute of Certified Public Accountants of the
unaudited consolidated interim financial statements, selected
financial data, pro forma financial information, prospective
financial statements and/or condensed financial statements
derived from audited financial statements of the Company for
the periods specified in such letter, as indicated in their
reports thereon, copies of which have been furnished to you.
(iii) On the basis of limited procedures, not
constituting an audit in accordance with generally accepted
auditing standards, consisting of a reading of the unaudited
financial statements and other information referred to below,
performing the procedures specified by the AICPA for a review
of interim financial information as discussed in SAS No. 71,
Interim Financial Information, on the latest available interim
financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its
subsidiaries since the date of the latest audited financial
statements included in the Prospectus, inquiries of officials
of the Company and its subsidiaries responsible for financial
and accounting matters and such other inquiries and procedures
as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) any material modifications should be made to
the unaudited statements of consolidated income,
statements of consolidated financial position and
statements of consolidated cash flows included in the
Prospectus for them to be in conformity with generally
accepted accounting principles, or the unaudited
statements of consolidated income, statements of
consolidated financial position and statements of
consolidated cash flows included in the Prospectus do not
comply as to form in all material respects with the
applicable accounting requirements of the Act and the
related published Rules and Regulations thereunder.
(B) any other unaudited income statement data and
balance sheet items included in the Registration
Statement do not agree with the corresponding items in
the unaudited consolidated financial statements from
which such data and items were derived, and any such
unaudited data and items were not determined on a basis
substantially consistent with the basis for the
corresponding amounts in the audited consolidated
financial statements included in the Registration
Statement.
(C) the unaudited financial statements which were
not included in the Prospectus but from which were
derived any unaudited condensed financial statements
referred to in Clause (A) and any unaudited income
statement data and balance sheet items included in the
Prospectus and referred to in Clause (B) were not
determined on a basis substantially consistent with the
basis for the audited consolidated financial statements
included in the Registration Statement.
(D) any unaudited pro forma consolidated condensed
financial statements included in the Registration
Statement do not comply as to form in all material
respects with the applicable accounting requirements of
the Act and the published rules and regulations
thereunder or the pro forma adjustments have not been
properly applied to the historical amounts in the
compilation of those statements.
(E) as of a specified date not more than five days
prior to the date of such letter, there have been any
changes in the consolidated capital stock or any increase
in the consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated working
capital, net current assets or net assets, or any changes
in any other items specified by you, in each case as
compared with amounts shown in the latest balance sheet
included in the Registration Statement, except in each
case for changes, increases or decreases which the
Registration Statement discloses have occurred or may
occur or which are described in such letter.
(F) for the period from the date of the latest
financial statements included in the Registration
Statement to the specified date referred to in Clause (E)
there were any decreases in consolidated net revenues or
operating profit or the total or per share amounts of
consolidated net income or any changes in any other items
specified by you, in each case as compared with the
comparable period of the preceding year and with any
other period of corresponding length specified by you,
except in each case for changes, decreases or increases
which the Prospectus discloses have occurred or may occur
or which are described in such letter.
(iv) In addition to the audit referred to in their
report(s) included or incorporated by reference in the
Prospectus and the limited procedures, inspection of minute
books, inquiries and other procedures referred to in paragraph
(iii) above, they have carried out certain specified
procedures, not constituting an audit in
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accordance with generally accepted auditing standards, with
respect to certain amounts, percentages and financial
information specified by you, which are derived from the
general accounting records of the Company and its subsidiaries
for the periods covered by their reports and any interim or
other periods since the latest period covered by their
reports, which appear in the Prospectus, or in Part II of, or
in exhibits and schedules to, the Registration Statement
specified by you, and have compared certain of such amounts,
percentages and financial information with the accounting
records of the Company and its subsidiaries and have found
them to be in agreement.
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