$100,000,000
CENTERPOINT PROPERTIES TRUST
UNDERWRITING AGREEMENT
63/4% Senior Notes due April 1, 2005
April 2, 1998
▇▇▇▇▇▇ BROTHERS INC.
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES, LLC
FIRST CHICAGO CAPITAL MARKETS, INC.
c/▇ ▇▇▇▇▇▇ Brothers Inc.
3 World Financial Center
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
CenterPoint Properties Trust, a Maryland real estate investment
trust (the "Company"), proposes to sell to the Underwriters named in Schedule
I hereto (collectively, the "Underwriters") $100,000,000 aggregate principal
amount of 63/4% Senior Notes due April 1, 2005 (the "Notes"). The Notes will
be issued pursuant to an Indenture to be dated as of the Delivery Date
referred to in Section 4 hereof (the "Base Indenture"), between the Company
and U.S. Bank Trust National Association, as trustee (the "Trustee"), and a
Supplemental Indenture thereto to be dated as of the Delivery Date (the
"Supplemental Indenture" and, together with the Base Indenture, the
"Indenture"), between the Company and the Trustee. This is to confirm the
agreement concerning the purchase of the Notes from the Company by the
Underwriters.
Capitalized Terms used but not otherwise defined herein shall have
the meanings given to those terms in the Prospectus (as herein defined).
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. The
Company represents, warrants and agrees that:
(a) A registration statement (File No. 333-18235) on Form S-3,
and one or more amendments thereto, with respect to the securities registered
thereunder
(the "Shelf Securities") to be issued from time to time (i) have been
prepared by the Company in conformity with the requirements of the Securities
Act of 1933, as amended (the "Securities Act") and the rules and regulations
(the "Rules and Regulations") of the Securities and Exchange Commission (the
"Commission") promulgated thereunder, (ii) have been filed with the
Commission under the Securities Act and (iii) have become effective under the
Securities Act. Copies of such registration statement and the amendments
thereto have been delivered by the Company to you. As used in this
Agreement, "Effective Time" means the dates and the times as of which such
registration statement, or the most recent post-effective amendment thereto,
if any, were declared effective by the Commission; "Effective Date" means the
dates of the Effective Time. The registration statement as amended to the
date of this Agreement is hereinafter referred to as the "Registration
Statement" and the related prospectus covering the Shelf Securities in the
form first used to confirm sales of the Notes is hereinafter referred to as
the "Basic Prospectus." The Basic Prospectus as supplemented by the
prospectus supplement specifically relating to the Notes in the form first
filed pursuant to Rule 424 of the Rules and Regulations ("Rule 424") is
hereinafter referred to as the "Prospectus." Any reference in this Agreement
to the Registration Statement, the Basic Prospectus, any preliminary form of
Prospectus (a "preliminary prospectus") previously filed with the Commission
pursuant to Rule 424 or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the Securities Act which were filed under the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Commission promulgated thereunder (collectively, the "Exchange Act") on or
before the date of this Agreement or the date of the Basic Prospectus, any
preliminary prospectus or the Prospectus, as the case may be; and any
reference to "amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any preliminary prospectus or
the Prospectus shall be deemed to refer to and include any documents filed
under the Exchange Act after the date of this Agreement, or the date of the
Basic Prospectus, any preliminary prospectus or the Prospectus, as the case
may be, which are deemed to be incorporated by reference therein. The
Commission has not issued any order pre-
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venting or suspending the use of any preliminary prospectus.
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Securities
Act or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
and any further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission, as the case may
be, will conform in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary or make the statements therein not misleading; provided, however,
no representation or warranty is made as to any statements or omissions made
in reliance upon and in conformity with written information furnished to the
Company by or on behalf of any Underwriter specifically for inclusion therein.
(c) The Registration Statement conforms, and the Prospectus
and any further amendments or supplements to the Registration Statement or
the Prospectus will, when they become effective or are filed with the
Commission, as the case may be, conform in all respects to the requirements
of the Securities Act and the Rules and Regulations and do not and will not,
as of the applicable effective date (as to the Registration Statement and any
amendment thereto) and as of the applicable filing date (as to the Prospectus
and any amendment or supplement thereto) 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; PROVIDED that no
representation or warranty is made as to information contained in or omitted
from the Registration Statement or the Prospectus in reliance upon and in
conformity with written informa-
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tion furnished to the Company by or on behalf of any Underwriter specifically
for inclusion therein.
(d) The Company and each of its subsidiaries have been duly
incorporated and are validly existing as corporations in good standing under
the laws of their respective jurisdictions of incorporation, are duly
qualified to do business and are in good standing in each jurisdiction in
which the laws of such jurisdiction require such qualification, and have all
power and authority necessary to own or hold their respective properties and
to conduct the businesses in which they are engaged; and none of the
subsidiaries of the Company is a "significant subsidiary", as such term is
defined in Rule 405 of the Rules and Regulations.
(e) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, 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 and are fully
paid and non-assessable and except as set forth in the Prospectus are owned
directly or indirectly by the Company as described in the Prospectus, free
and clear of all liens, encumbrances, equities or claims.
(f) The Notes have been duly and validly authorized and, when
duly executed by the proper officers of the Company, issued and delivered by
the Company, and authenticated by the Trustee pursuant to the provisions of
the Indenture and delivered against payment therefor as provided in this
Agreement, will constitute valid and legally binding obligations of the
Company, enforceable against the Company in accordance with their terms. The
Notes, when issued and delivered, will conform to the descriptions thereof
contained in the Prospectus.
(g) The Indenture has been duly authorized by the Company, and
when duly executed by the proper officers of the Company (assuming due
execution and delivery by the Trustee) and delivered by the Company, will
constitute a valid and legally binding obligation of the Company, enforceable
against the Company in accordance with its terms.
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(h) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes the valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms;
the execution, delivery and performance of this Agreement and the Indenture
by the Company and the consummation of the transactions contemplated hereby
and thereby and the issuance and delivery of the Notes have been duly
authorized by all necessary corporate 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 to
which the Company or any of its subsidiaries is a party or by which the
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 charter, as the case may be, or by-laws of the
Company or any of its subsidiaries or 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; except for the registration of the Notes 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 purchase and distribution of the Notes 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 this Agreement by the
Company and the consummation of the transactions contemplated hereby.
(i) Except as disclosed in the Registration Statement, there
are no contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company or any
subsidiary of the Company to file a registration statement under the
Securities Act with respect to any securities of the Company or any
subsidiary of the Company owned or to be owned by such person or to require
5
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.
(j) 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, earthquake or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as
set forth or contemplated in the Prospectus; and, since such date, there has
not been any change in the capital stock or long-term debt of the Company or
any of its subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the general
affairs, management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set forth
or contemplated in the Prospectus.
(k) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or included
or incorporated by reference in the Prospectus present fairly the financial
condition and results of operations of the entities purported to be shown
thereby, at the dates and for the periods indicated, and have been prepared
in conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved.
(l) Coopers & ▇▇▇▇▇▇▇, who have certified certain financial
statements of the Company and whose report appears in the Prospectus, are
independent public accountants as required by the Securities Act and the
Rules and Regulations.
(m) (i) The Company and each of its subsidiaries have good
and marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them, in each case free
and clear of all liens, encumbrances and defects except such as are described
in the Prospectus or such as do not materially affect the value of such
property and do not
6
materially interfere with the use made and proposed to be made of such
property by the Company and its subsidiaries; (ii) all real property and
buildings held under lease by the Company and its subsidiaries are held by
them under valid, subsisting and enforceable leases, with such exceptions as
are not material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company and its subsidiaries;
(iii) all liens, charges, encumbrances, claims, or restrictions on or
affecting the properties and assets of any of the Company or its subsidiaries
which are required to be disclosed in the Prospectus are disclosed therein;
(iv) neither the Company nor any of its subsidiaries is in default under any
of the leases pursuant to which any of the Company or its subsidiaries leases
its properties and neither the Company nor any of its subsidiaries knows of
any event which, but for the passage of time or the giving of notice, or
both, would constitute a default under any of such leases; (v) except as
described in the Prospectus, no tenant under any of the leases pursuant to
which any of the Company or its subsidiaries leases properties has an option
or right of first refusal to purchase the premises under such lease; (vi)
each of the properties of any of the Company or its subsidiaries complies
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 consolidated financial position, stockholders'
equity, results of operations, business or prospects of the Company and its
subsidiaries; and (vii) neither the Company nor any of its subsidiaries has
knowledge of any pending or threatened condemnation, zoning change, or other
proceeding or action that will in any manner affect the size of, use of,
improvements on, construction on or access to the properties of any of the
Company or its subsidiaries.
(n) The Company and each of its subsidiaries carry, or are
covered by, insurance in such amounts and covering such risks as is adequate
for the conduct of their respective businesses and the value of their
respective properties and as is customary for companies engaged in similar
businesses in similar industries.
(o) The Company and each of its subsidiaries own or possess
adequate rights to use all material
7
patents, patent applications, trademarks, service marks, trade names,
trademark registrations, service ▇▇▇▇ registrations, copyrights and licenses
necessary for the conduct of their respective businesses and have no reason
to believe that the conduct of their respective businesses will conflict
with, and have not received any notice of any claim of conflict with, any
such rights of others.
(p) 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,
stockholders' equity, results of operations, business or prospects of the
Company and its subsidiaries; and to the best of the Company's knowledge, no
such proceedings are threatened or contemplated by governmental authorities
or threatened by others.
(q) 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
which have not been described in the Prospectus or filed as exhibits to the
Registration Statement or incorporated therein by reference as permitted by
the Rules and Regulations.
(r) No relationship, direct or indirect, exists between or
among the Company on the one hand, and the directors, officers or
stockholders of the Company on the other hand, which is required to be
described in the Prospectus which is not so described.
(s) No labor disturbance by the employees of the Company
exists or, to the knowledge of the Company, is imminent which might be
expected to have a material adverse effect on the consolidated financial
position, stockholders' equity, results of operations, business or prospects
of the Company and its subsidiaries.
(t) The Company is in compliance in all material respects with
all presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and published
8
interpretations thereunder ("ERISA"); no "reportable event" (as defined in
ERISA) has occurred with respect to any "pension plan" (as defined in ERISA)
for which the Company would have any liability; the Company has not incurred
and does not expect to incur liability under (i) Title IV of ERISA with
respect to termination of, or withdrawal from, any "pension plan" or (ii)
Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended,
including the regulations and published interpretations thereunder (the
"Code"); and each "pension plan" for which the Company would have any
liability that is intended to be qualified under Section 401(a) of the Code
is so qualified in all material respects and nothing has occurred, whether by
action or by failure to act, which would cause the loss of such qualification.
(u) The Company has filed all federal, state and local income
and franchise tax returns required to be filed through the date hereof and
has paid all taxes due thereon, and no tax deficiency has been determined
adversely to the Company or any of its subsidiaries, which has had (nor does
the Company have any knowledge of any tax deficiency which, if determined
adversely to the Company or any of its subsidiaries, might have) a material
adverse effect on the consolidated financial condition, stockholders' equity,
results of operations, business or prospects of the Company and its
subsidiaries.
(v) Since the date as of which information is given in the
Prospectus through the date hereof, and except as may otherwise be disclosed
in the Prospectus, the Company has not (i) issued or granted any securities,
(ii) incurred any liability or obligation, direct or contingent, other than
liabilities and obligations which were incurred in the ordinary course of
business, (iii) entered into any transaction not in the ordinary course of
business or (iv) declared or paid any dividend on its capital stock.
(w) The Company (i) makes and keeps accurate books and records
and (ii) maintains internal accounting controls which provide reasonable
assurance that (A) transactions are executed in accordance with management's
authorization, (B) transactions are recorded as necessary to permit
preparation of its financial statements and to maintain accountability for
its assets,
9
(C) access to its assets is permitted only in accordance with management's
authorization and (D) the reported accountability for its assets is compared
with existing assets at reasonable intervals.
(x) Neither the Company nor any of its subsidiaries (i) is in
violation of its declaration of trust or charter, as the case may be, or
by-laws, (ii) is in default in any material respect, and no event has
occurred which, with notice or lapse of time or both, would constitute such a
default, in the due performance or observance of any term, covenant or
condition contained in any material indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party or by which
it is bound or to which any of its properties or assets is subject or (iii)
is in violation in any material respect of any law, ordinance, governmental
rule, regulation or court decree to which it or its property or assets may be
subject or has failed to obtain any material license, permit, certificate,
franchise or other governmental authorization or permit necessary to the
ownership of its property or to the conduct of its business.
(y) Neither the Company nor any of its subsidiaries, nor any
director, officer, agent, employee or other person associated with or acting
on behalf of the Company or any of its subsidiaries, has used any corporate
funds for any unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity; made any direct or indirect unlawful
payment to any foreign or domestic government official or employee from
corporate funds; violated or is in violation of any provision of the Foreign
Corrupt Practices Act of 1977; or made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment.
(z) There has been no storage, disposal, generation,
manufacture, refinement, transportation, handling or treatment of any
material by the Company or any of its 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
10
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, stockholders' equity or
results of operations of the Company and its subsidiaries.
(aa) Neither the Company nor any subsidiary is an "investment
company" within the meaning of such term under the Investment Company Act of
1940 and the rules and regulations of the Commission promulgated thereunder.
(ab) The Company is organized in conformity with the
requirements for qualification as a real estate investment trust under the
Code, and its present and contemplated method of operation does and will
enable it to meet the requirements for taxation as a real estate investment
trust ("REIT") under the Code for the year ended December 31, 1994 and
subsequent taxable years.
(ac) Each of the Company and its subsidiaries has title
insurance on all properties and assets described in the Prospectus as owned
by such party in an amount at least equal to the greater of (a) the cost of
acquisition of such property or assets and (b) the cost of construction of
the improvements located on such properties.
(ad) Neither the BBB- nor baa2 senior debt rating assigned to
the Company by Standard & Poor's
11
Corporation and by ▇▇▇▇▇'▇ Investor Services, Inc., respectively, has been
lowered or, to the Company's knowledge, threatened to be lowered by either
such rating agency nor, to the Company's knowledge, has it been placed under
surveillance or review, for the purpose of lowering such ratings, by either
such rating agency.
2. PURCHASE OF THE NOTES BY THE UNDERWRITERS. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell to the several
Underwriters and each of the Underwriters, severally and not jointly, agrees
to purchase the respective principal amount of Notes set opposite such
Underwriter's name in Schedule I hereto at a purchase price equal to 98.938%
of the principal amount of such Notes.
The Company shall not be obligated to deliver any of the Notes to
be delivered on the Delivery Date (as hereinafter defined) except upon
payment for all the Notes to be purchased on the Delivery Date as provided
herein.
3. OFFERING OF NOTES BY THE UNDERWRITERS. The several
Underwriters propose to offer the Notes for sale upon the terms and
conditions set forth in the Prospectus.
4. DELIVERY OF AND PAYMENT FOR THE NOTES. Delivery of and payment
for the Notes shall be made at such place as shall be determined by agreement
between the Underwriters and the Company at 10:00 A.M., New York City time,
on the fourth full business day following the date of this Agreement or at
such other date as shall be determined by agreement between the Underwriters
and the Company. This date and time are sometimes referred to as the
"Delivery Date." On the Delivery Date, the Company shall deliver or cause to
be delivered certificates representing the Notes to the Underwriters against
payment to or upon the order of the Company of the purchase price by wire
transfer in federal or same day funds. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement is a
further condition of the obligation of each Underwriter hereunder. Upon
delivery, the Notes shall be registered in such names and in such
denominations as the Underwriters shall request in writing not less than two
full
12
business days prior to the Delivery Date. For the purpose of expediting the
checking and packaging of the certificates for the Notes, the Company shall
make the certificates representing the Notes available for inspection by the
Underwriters in New York, New York, not later than 2:00 P.M., New York City
time, on the business day prior to the Delivery Date.
5. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees:
(a) To prepare the Prospectus in a form approved by the
Underwriters and to file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than the Commission's close of business on the
second business day following the execution and delivery of this Agreement;
to make no further amendment or any supplement to the Registration Statement
or to the Prospectus except as permitted herein; to advise the Underwriters,
promptly after it receives notice thereof, of the time when any amendment to
the Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed and to
furnish the Underwriters with copies thereof; to advise the Underwriters,
promptly after it receives notice thereof, of the issuance by the Commission
of any stop order or of any order preventing or suspending the use of any
preliminary prospectus or the Prospectus, of the suspension of the
qualification of the Notes for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the
Registration Statement or the Prospectus or for additional information; and,
in the event of the issuance of any stop order or of any order preventing or
suspending the use of any preliminary prospectus or the Prospectus or
suspending any such qualification, to use promptly its best efforts to obtain
its withdrawal;
(b) To furnish promptly to each of the Underwriters upon their
request and to counsel for the Underwriters a signed copy of the Registration
Statement as originally filed with the Commission, and each amendment thereto
filed with the Commission, including all consents and exhibits filed
therewith;
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(c) To deliver promptly to the Underwriters such number of the
following documents as the Underwriters shall request: (i) conformed copies
of the Registration Statement as originally filed with the Commission and
each amendment thereto (in each case excluding exhibits other than this
Agreement and the computation of per share earnings), (ii) each preliminary
prospectus, the Prospectus and any amended or supplemented Prospectus and
(iii) any document incorporated by reference in the Prospectus (excluding
exhibits thereto) for 90 days from the Delivery Date; and, if the delivery of
a prospectus is required at any time prior to the expiration of nine months
after the Effective Time in connection with the offering or sale of the Notes
and if at such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue statement
of a material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary in the opinion of counsel to the
Underwriters during such same period to amend or supplement the Prospectus in
order to comply with the Securities Act or the Exchange Act, to notify the
Underwriters and, upon their request, to prepare and furnish without charge
to each Underwriter and to any dealer in securities as many copies as the
Underwriters may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance, and in case any Underwriter
is required to deliver a prospectus in connection with sales of any of the
Notes at any time nine months or more after the Effective Time, upon the
request but at the expense of such Underwriter, to prepare and deliver to
such Underwriter as many copies as such Underwriter may request of an amended
or supplemented Prospectus complying with section 10(a)(3) of the Securities
Act;
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the Prospectus
that may, in the judgment of the Company or the Underwriters, be required by
the Securities Act or requested by the Commission;
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(e) Prior to filing with the Commission (i) any amendment
to the Registration Statement or supplement to the Prospectus or (ii)
any Prospectus pursuant to Rule 424 of the Rules and Regulations, to
furnish a copy thereof to the Underwriters and counsel for the
Underwriters and obtain the consent of the Underwriters to the filing;
(f) As soon as practicable after the Effective Date, but in
any event not later than 45 days after the end of its fiscal quarter in which
the first anniversary date of the Effective Date occurs, to make generally
available to the Company's security holders and to deliver to the
Underwriters an earnings statement of the Company and its subsidiaries (which
need not be audited) complying with Section 11(a) of the Securities Act and
the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date,
to furnish to the Underwriters copies of all materials furnished by the
Company to its shareholders and all public reports and all reports and
financial statements furnished by the Company to the principal national
securities exchange upon which the Notes may be listed pursuant to
requirements of or agreements with such exchange or to the Commission
pursuant to the Exchange Act or any rule or regulation of the Commission
thereunder;
(h) Promptly from time to time, to take such action as the
Underwriters may reasonably request to qualify the Notes for offering and
sale under the securities laws of such jurisdictions as the Underwriters may
request and to comply with such laws so as to permit the continuance of sales
and dealings therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Notes; except that in no event shall the
Company be obligated in connection therewith to qualify as a foreign
corporation, or to execute a general consent to service of process;
(i) To apply the net proceeds from the sale of the Notes being
sold by the Company as set forth in the Prospectus;
15
(j) To take such steps as shall be necessary to ensure that
neither the Company nor any subsidiary shall become an "investment company"
within the meaning of such term under the Investment Company Act of 1940 and
the rules and regulations of the Commission thereunder;
(k) During the period of 180 days commencing on the date
hereof, the Company will not, directly or indirectly, take any action
designed to or which will constitute or which might reasonably be expected to
cause or result in the manipulation or stabilization of the price of the
Notes; and
(l) To file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
for so long as the delivery of a prospectus is required in connection with
the offering or sale of the Notes.
6. EXPENSES. The Company agrees to pay (a) the costs incident to
the authorization, issuance, sale and delivery of the Notes and any taxes
payable in that connection; (b) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement
and any amendments and exhibits thereto; (c) the costs of distributing the
Registration Statement as originally filed and each amendment thereto and any
post-effective amendments thereof (including, in each case, exhibits), any
preliminary prospectus, the Prospectus and any amendment or supplement to the
Prospectus, all as provided in this Agreement; (d) the costs of reproducing
and distributing this Agreement; (e) the costs of distributing the terms of
the agreement relating to the organization of the underwriting syndicate and
selling group to the members thereof by mail, telex or other means of
communication; (f) the filing fees incident to securing any required review
by the National Association of Securities Dealers, Inc. of the terms of sale
of the Notes; (g) any applicable listing or other fees; (h) the fees and
expenses of qualifying the Notes under the securities laws of the several
jurisdictions as provided in Section 5(h) and of preparing, printing and
distributing a Blue Sky Memorandum (including related fees and expenses of
counsel to the Underwriters); and (i) all other costs and expenses incident
to the perfor-
16
▇▇▇▇▇ of the obligations of the Company under this Agreement; PROVIDED that,
except as provided in this Section 6, Section 8 and Section 11, the
Underwriters shall pay their own costs and expenses, including the costs and
expenses of their counsel, any transfer taxes on the Notes which they may
sell and the expenses of advertising any offering of the Notes made by the
Underwriters.
7. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when
made and on the Delivery Date, of the representations and warranties of the
Company contained herein, to the performance by the Company of its
obligations hereunder, and to each of the following additional terms and
conditions:
(a) The Prospectus shall have been timely filed with the
Commission in accordance with Section 5(a); no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and any request of the Commission for inclusion
of additional information in the Registration Statement or the Prospectus or
otherwise shall have been complied with.
(b) No Underwriter shall not have been advised by the Company
nor shall it have discovered and disclosed to the Company on or prior to the
Delivery Date that the Registration Statement or the Prospectus or any
amendment or supplement thereto contains an untrue statement of a fact which,
in your opinion or in the opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇
LLP, counsel for the Underwriters, 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 not misleading.
(c) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the Indenture, the
Notes, the Registration Statement and the Prospectus, and all other legal
matters relating to this Agreement the Indenture, and the transactions
contemplated hereby and thereby shall be satisfactory in all respects to
counsel for the Underwriters, and the Company shall have furnished to such
counsel all documents and information that they may
17
reasonably request to enable them to pass upon such matters.
(d) Ungaretti & ▇▇▇▇▇▇ shall have furnished to the
Underwriters its written opinion, as counsel to the Company, addressed to the
Underwriters and dated the Delivery Date, in form and substance satisfactory
to the Underwriters, to the effect that:
(i) Each of the Company and its subsidiaries has
been duly incorporated and is validly existing and in good standing
under the laws of their respective jurisdictions of organization, each
is duly qualified to transact business as a foreign corporation and is
in good standing under the laws of all other jurisdictions in which the
laws of such jurisdictions 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 all power and authority necessary to own or lease its
properties and conduct its business as described in the Registration
Statement and the Prospectus;
(ii) The Company has an authorized capitalization as
set forth in the Prospectus, and all of the issued shares of capital
stock of the Company have been duly and validly authorized and issued,
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;
(iii) The Registration Statement was declared
effective under the Securities Act as of the date and time specified in
such opinion, and, to our knowledge after due inquiry,
18
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 proceeding for that purpose have been instituted
or threatened or are contemplated by the Commission;
(iv) Except as described in the Prospectus, there
are no preemptive rights or other rights to subscribe for or to
purchase, nor any restriction upon transfer of, any Notes pursuant to
the Company's declaration of trust or by-laws or any agreement or other
instrument known to such counsel;
(v) 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, stockholders' 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;
(vi) 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
therein, as to which such counsel need 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;
(vii) This Agreement has been duly authorized,
executed and delivered by the Company;
19
(viii) The Indenture has been duly authorized,
executed and delivered by the Company and (assuming due execution and
delivery by the Trustee) constitutes a valid and legally binding
agreement on the part of the Company enforceable against the Company in
accordance with its terms, except that the enforceability thereof may be
limited by or subject to (a) bankruptcy, insolvency, reorganization,
fraudulent conveyance or transfer, moratorium or similar laws now or
hereafter in effect relating to creditors' rights generally and (b)
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or equity); and the Indenture has been
qualified under the Trust Indenture Act;
(ix) The Notes have been duly authorized, executed,
issued and delivered by the Company, and when authenticated in
accordance with the terms of the Indenture and delivered to and paid for
by the Underwriters in accordance with the terms of this Agreement, will
constitute valued and legally binding obligations of the Company
entitled to the benefits provided by the Indenture, enforceable in
accordance with their terms, except that the enforceability thereof may
be limited by or subject to (a) bankruptcy, insolvency, reorganization,
fraudulent conveyance or transfer, moratorium or similar laws now or
hereafter in effect relating to creditors' rights generally and (b)
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or equity); and the Indenture has been
qualified under the Trust Indenture Act;
(x) the Indenture and the Notes conform in all
material respects to the descriptions thereof in the Registration
Statement and the Prospectus under the captions "Description of the
Notes" and "Description of Debt Securities."
20
(xi) The statements contained in the Prospectus
under the captions "Description of the Notes", "Federal Income Tax
Considerations", "Description of Debt Securities", "Description of
Shares of Beneficial Interest", "Description of Securities Warrants",
"Certain Provisions of Maryland Law and of the Company's Declaration of
Trust and Bylaws" and "Federal Income Tax Considerations Relating to the
Company's REIT Election", in each case insofar as they constitute
summaries of legal matters, documents or proceedings, constitute a fair
summary thereof and the opinion of such counsel filed as Exhibit 8 to
the Registration Statement is confirmed and the Underwriters may rely
upon such opinion as if it were addressed to them;
(xii) 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 the Rules and
Regulations;
(xiii) Except as disclosed in the Registration
Statement, to the best of such counsel's 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;
(xiv) Neither the Company nor any subsidiary is an
"investment company" within the meaning of such term under the United
21
States Investment Company Act of 1940 and the rules and regulations of
the Commission thereunder;
(xv) The issue and sale of the Notes being sold
pursuant to this Agreement and the compliance by the Company and its
subsidiaries with all of the provisions of this Agreement and the
Indenture and the consummation of the transactions contemplated hereby
and thereby have been duly authorized by all necessary corporate 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 known to such counsel to
which the Company or any of its subsidiaries is a party or by which the
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 any of its
subsidiaries or any statute or any order, rule or regulation known to
such counsel 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 Notes
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 purchase
and distribution of the Notes 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 this Agreement by the Company and
the consummation of the transactions contemplated hereby;
22
In rendering such opinion, such counsel may rely as to matters of Maryland
law on the opinion of ▇▇▇▇▇▇, Feinblatt, Rothman, Hoffberger & ▇▇▇▇▇▇▇▇▇,
LLC, which opinion shall be in form and substance satisfactory to counsel for
the Underwriters, PROVIDED that such counsel shall state that it believes
that both the Underwriters and it are justified in relying upon such opinion.
Such counsel shall also have furnished to the Underwriters a written
statement, addressed to the Underwriters and dated the Delivery Date, in form
and substance reasonably satisfactory to the Underwriters, to the effect that
no facts have come to the attention of such counsel which lead it to believe
that the Registration Statement, as of the Effective Date and as of the
Delivery Date, contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary in order
to make the statements therein not misleading, or that the Prospectus, as of
the Delivery Date and at the time such Prospectus was issued, 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.
(e) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall have
furnished to the Underwriters its written opinion, as counsel to the
Underwriters, addressed to the Underwriters and dated the Delivery Date, in
form and substance satisfactory to the Underwriters. In giving its opinion,
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP may rely as to matters of Maryland
law on the opinion of ▇▇▇▇▇▇, Feinblatt, Rothman, Hoffberger & ▇▇▇▇▇▇▇▇▇,
LLC, which opinion shall be in form and substance satisfactory to counsel for
the Underwriters. Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall also have
furnished to the Underwriters a written statement, addressed to the
Underwriters and dated the Delivery Date, in form and substance satisfactory
to the Underwriters, to the effect that no facts have come to the attention
of such counsel which lead it to believe that the Registration Statement, as
of the Effective Date and as of the Delivery Date, contained any untrue
statement of a material fact or omitted to state a material fact required to
be stated therein or necessary in order to make the statements therein not
misleading, or that the Prospectus, as of the Delivery Date and at the time
such Prospectus was issued,
23
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.
(f) The Company shall have furnished to the Underwriters a
letter (the "bring-down letter") of Coopers & ▇▇▇▇▇▇▇, addressed to the
Underwriters and dated the Delivery Date (i) confirming that they are
independent public accountants within the meaning of the Securities Act and
are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, (ii) stating, as of the date of the bring-down letter (or, with
respect to matters involving changes or developments since the respective
dates as of which specified financial information is given or incorporated by
reference in the Prospectus, as of a date not more than five days prior to
the date of the bring-down letter), the conclusions and findings of such firm
with respect to the financial information and other matters covered by its
letter (the "initial letter") delivered to the Underwriters concurrently with
the execution of this Agreement and (iii) confirming in all material respects
the conclusions and findings set forth in the initial letter.
(g) The Company shall have furnished to the Underwriters a
certificate, dated the Delivery Date, of its Chairman of the Board, its
President or a Vice President and its chief financial officer stating that:
(i) The representations, warranties and agreements
of the Company in Section 1 are true and correct as of the Delivery
Date; the Company has complied with all its agreements contained herein;
and the conditions set forth in Sections 7(a), 7(h) and 7(j) have been
fulfilled;
(ii) No stop order suspending the effectiveness of
the Registration Statement has been issued and, to the best of each such
officer's knowledge, no proceeding for that purpose is pending or
threatened by the Commission;
24
(iii) All filings required by Rule 424(b) of the Rules
and Regulations have been made; and
(iv) They have carefully examined the Registration
Statement and the Prospectus and, in their opinion (A) as of the
Effective Date, the Registration Statement and Prospectus did not
include any untrue statement of a material fact and did not omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading, and (B) since the Effective Date
no event has occurred which should have been set forth in a supplement
or amendment to the Registration Statement or the Prospectus which has
not been so set forth.
(h) (i) Neither the Company nor any of its subsidiaries
shall have sustained since the date of the latest audited financial
statements included in the Prospectus any loss or interference with its
business from fire, explosion, flood, earthquake or other calamity,
whether or not covered by insurance, or from any labor dispute or court
or governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; (ii) since such date there shall not
have been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus, or (iii) trading in any Company
securities has not been suspended by the Commission or the New York
Stock Exchange (the "NYSE"), the effect of which, in any such case
described in clause (i), (ii) or (iii), is, in the judgment of the
Underwriters, so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Notes being delivered on the Delivery Date on the terms and in the
manner contemplated in the Prospectus.
(i) Subsequent to the execution and delivery of this
Agreement there shall not have occurred any of the following: (i)
trading in securities generally
25
on the NYSE, the American Stock Exchange or the
over-the-counter market shall have been suspended or minimum prices
shall have been established on either of such exchanges or such market
by the Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium
shall have been declared by Federal or state authorities, (iii) the
United States shall have become engaged in hostilities, there shall have
been an escalation in hostilities involving the United States or there
shall have been a declaration of a national emergency or war by the
United States or (iv) there shall have occurred such a material adverse
change in general economic, political or financial conditions (or the
effect of international conditions on the financial markets in the
United States shall be such) as, in the case of clause (iv), to make it,
in the judgment of a majority of interest of the several Underwriters,
impractical or inadvisable to proceed with the public offering or
delivery of the Notes being delivered on the Delivery Date on the terms
and in the manner contemplated in the Prospectus.
(j) Subsequent to the execution and delivery of this
Agreement (i) no downgrading shall have occurred in the rating accorded
the Company's Senior debt by any "nationally recognized statistical
rating organization," as that term is defined by the Commission for
purposes of Rule 436(g)(2) of the Rules and Regulations and (ii) no such
organization shall have publicly announced that it has under
surveillance or review, for the purpose of lowering such ratings, its
rating of any of the Company's debt securities.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance satisfactory to
counsel for the Underwriters. The Company shall furnish to you
conformed copies of such opinions, certificates, letters and other
documents in such number as you shall reasonably request. If any of the
conditions specified in this Section 7 shall not have been fulfilled
when and as required by this Agreement, the Agreement and all
obligations of the Underwriters hereunder may be cancelled at, or at any
time prior to, the Delivery Date, by you. Any such cancellation shall
be without liability of the Underwriters to the Company. Notice of such
26
cancellation shall be given the Company in writing, or by telegraph or
telephone and confirmed in writing.
8. INDEMNIFICATION AND CONTRIBUTION
(a) The Company shall indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within
the meaning of the Securities Act from and against any loss, claim,
damage or liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or
action relating to purchases and sales of Notes), to which that
Underwriter or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in
any preliminary prospectus, the Registration Statement or the Prospectus
or in any amendment or supplement thereto or (ii) the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
shall reimburse each Underwriter and each such controlling person
promptly upon demand for any legal or other expenses reasonably incurred
by that Underwriter or controlling person in connection with
investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred;
PROVIDED, HOWEVER, that the Company shall not be liable in any such case
to the extent that any such loss, claim, damage, liability or action
arises out of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in any preliminary
prospectus, the Registration Statement or the Prospectus or in any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter
specifically for inclusion therein. The foregoing indemnity agreement
is in addition to any liability which the Company may otherwise have to
any Underwriter or to any controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless the Company, each of its directors
(including any person who, with his or her consent, is named in the
Registration Statement as
27
about to become a director of the Company), each of its officers who
signed the Registration Statement and each person, if any, who controls
the Company within the meaning of the Securities Act, from and against
any loss, claim, damage or liability, joint or several, or any action in
respect thereof, to which the Company or any such director, officer or
controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in any preliminary
prospectus, the Registration Statement or the Prospectus or in any
amendment or supplement thereto or (ii) the omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, but in each
case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Company by or on
behalf of that Underwriter specifically for inclusion therein, and shall
reimburse the Company and any such director, officer or controlling
person for any legal or other expenses reasonably incurred by the
Company or any such director, officer or controlling person in
connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such
expenses are incurred. The foregoing indemnity agreement is in addition
to any liability which any Underwriter may otherwise have to the Company
or any such director, officer or controlling person.
(c) Promptly after receipt by an indemnified party under
this Section 8 of notice of any claim or the commencement of any action,
the indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under this Section 8, notify the
indemnifying party in writing of the claim or the commencement of that
action; PROVIDED, HOWEVER, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under
this Section 8 except to the extent it has been materially prejudiced by
such failure and, PROVIDED FURTHER, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may
have to an indemnified party otherwise than under this Section 8. If
any such claim or action shall be brought against an
28
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the
extent that it wishes, jointly with any other similarly notified indemnifying
party, to assume the defense thereof with counsel satisfactory to the
indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the indemnified party
under this Section 8 for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense thereof other than
reasonable costs of investigation; PROVIDED, HOWEVER, that the Underwriters
shall have the right to employ counsel to represent jointly the Underwriters
and controlling persons who may be subject to liability arising out of any
claim in respect of which indemnity may be sought by the Underwriters against
the Company under this Section 8 if, in the reasonable judgment of the
Underwriters, it is advisable for the Underwriters and controlling persons to
be jointly represented by separate counsel, and in that event the fees and
expenses of such separate counsel shall be paid by the Company.
(d) If the indemnification provided for in this Section 8
shall for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 8(a) or 8(b) in respect of any loss, claim,
damage or liability, or any action 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 loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the
relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Notes or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law or
if the indemnified party failed to give the notice required under Section
8(c), in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company on the one hand and the Underwriters on the other with respect to the
statements or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant
equitable consid-
29
erations. The relative benefits received by the Company on the one hand and
the Underwriters on the other with respect to such offering shall be deemed
to be in the same proportion as the total net proceeds from the offering of
the Notes purchased under this Agreement (before deducting expenses) received
by the Company bear to the amount equal to the difference between the
aggregate price for which the Underwriters resell the Notes and the total net
proceeds from the offering of the Notes purchased under this Agreement
(before deducting expenses) received by the Company. The relative fault
shall be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or the
Underwriters, the intent of the parties and their relative knowledge, access
to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just
and equitable if contributions pursuant to this Section 8(d) were to be
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does
not take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to above
in this Section 8(d) shall be deemed to include, for purposes of this Section
8(d), 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 Section 8(d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Notes underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise paid or become liable to pay by reason of any
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
The Underwriters' obligations to contribute as provided in this
Section 8(d) are several in proportion to their respective underwriting
obligations and not joint.
30
(e) The Underwriters severally confirm that the statements
with respect to the public offering of the Notes set forth on the cover page
of, and under the caption "Underwriting" in, the Prospectus are correct and
constitute the only information furnished in writing to the Company by or on
behalf of the Underwriters specifically for inclusion in the Registration
Statement and the Prospectus.
9. DEFAULTING UNDERWRITERS. If, on the Delivery Date, any
Underwriter defaults in the performance of its obligations under this
Agreement, the remaining non-defaulting Underwriters shall be obligated to
purchase the Notes which the defaulting Underwriter agreed but failed to
purchase on the Delivery Date in the respective proportions which the number
of Notes set opposite the name of each remaining non-defaulting Underwriter
in Schedule I hereto bears to the total number of Notes set opposite the
names of all the remaining non-defaulting Underwriters in Schedule I hereto;
PROVIDED, HOWEVER, that the remaining non-defaulting Underwriters shall not
be obligated to purchase any of the Notes on the Delivery Date if the total
number of Notes which the defaulting Underwriter or Underwriters agreed but
failed to purchase on such date exceeds 9.09% of the total number of Notes to
be purchased on the Delivery Date, and any remaining non-defaulting
Underwriter shall not be obligated to purchase more than 110% of the number
of Notes which it agreed to purchase on the Delivery Date pursuant to the
terms of Section 2. If the foregoing maximums are exceeded, the remaining
non-defaulting Underwriters, or those other underwriters satisfactory to the
Underwriters who so agree, shall have the right, but shall not be obligated,
to purchase, in such proportion as may be agreed upon among them, all the
Notes to be purchased on the Delivery Date. If the remaining Underwriters or
other underwriters satisfactory to the Underwriters do not elect to purchase
the Notes which the defaulting Underwriter or Underwriters agreed but failed
to purchase on the Delivery Date, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or the Company,
except that the Company and the Underwriters will continue to be liable for
the payment of expenses to the extent set forth in Sections 6, 8 and 11. As
used in this Agreement, the term "Underwriter" includes, for all purposes of
this Agreement unless the context requires otherwise, any party not listed in
Schedule I hereto who, pursuant to this Section 9, purchases Notes which a
defaulting Underwriter agreed but failed to purchase.
31
Nothing contained herein shall relieve a defaulting Underwriter of
any liability it may have to the Company for damages caused by its default.
If other underwriters are obligated or agree to purchase the Notes of a
defaulting or withdrawing Underwriter, either the Underwriters or the Company
may postpone the Delivery Date for up to seven full business days in order to
effect any changes that in the opinion of counsel for the Company or counsel
for the Underwriters may be necessary in the Registration Statement, the
Prospectus or in any other document or arrangement.
10. TERMINATION. The obligations of the Underwriters hereunder
may be terminated by the Underwriters by notice given to and received by the
Company prior to delivery of and payment for the Notes, if, prior to that
time, any of the events described in Sections 7(h), or 7(i) shall have
occurred or if the Underwriters shall decline to purchase the Notes for any
reason permitted under this Agreement.
11. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If (a) the Company
shall fail to tender the Notes for delivery to the Underwriters unless for
any reason permitted under this Agreement or (b) the Underwriters shall
decline to purchase the Notes for any reason permitted under this Agreement
(including the termination of this Agreement pursuant to Section 10), the
Company shall reimburse the Underwriters for the fees and expenses of their
counsel and for such other out-of-pocket expenses as shall have been incurred
by them in connection with this Agreement and the proposed purchase of the
Notes, and upon demand the Company shall pay the full amount thereof to the
Underwriters. If this Agreement is terminated pursuant to Section 9 by
reason of the default of one or more Underwriters, the Company shall not be
obligated to reimburse any defaulting Underwriter on account of these
expenses.
12. NOTICES, ETC. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by
mail, telex or facsimile transmission to ▇▇▇▇▇▇ Brothers Inc., ▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Syndicate
Registration Department (Fax: ▇▇▇-▇▇▇-▇▇▇▇).
32
(b) if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in
the Registration Statement, Attention: President (Fax: ▇▇▇-▇▇▇-▇▇▇▇).
Any such statements, requests, notices or agreements shall take
effect at the time of receipt thereof.
The Company shall be entitled to act and rely upon any request,
consent, notice or agreement given or made on behalf of the Underwriters by
▇▇▇▇▇▇ Brothers Inc.
13. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement
shall inure to the benefit of and be binding upon the Underwriters, the
Company, and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
(A) the representations, warranties, indemnities and agreements of the
Company contained in this Agreement shall also be deemed to be for the
benefit of the person or persons, if any, who control any Underwriter within
the meaning of Section 15 of the Securities Act and (B) the indemnity
agreement of the Underwriters contained in Section 8(b) of this Agreement
shall be deemed to be for the benefit of directors of the Company, officers
of the Company who have signed the Registration Statement and any person
controlling the Company within the meaning of Section 15 of the Securities
Act. Nothing in this Agreement is intended or shall be construed to give any
person, other than the persons referred to in this Section 13, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein.
14. SURVIVAL. The respective indemnities, representations,
warranties and agreements of the Company and the Underwriters contained in
this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall survive the delivery of and payment for the Notes and
shall remain in full force and effect, regardless of any investigation made
by or on behalf of any of them or any person controlling any of them.
15. DEFINITION OF THE TERMS "BUSINESS DAY" AND "SUBSIDIARY". For
purposes of this Agreement, (a) "business day" means any day on which the New
York Stock Exchange, Inc. is open for trading and (b) "subsidiary" has
33
the meaning set forth in Rule 405 of the Rules and Regulations.
16. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of New York.
17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
18. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
34
If the foregoing correctly sets forth the agreement between the
Company and the Underwriters, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
CENTERPOINT PROPERTIES TRUST
By:
---------------------------------------
Name:
Title:
Accepted:
▇▇▇▇▇▇ BROTHERS INC.
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES, LLC
FIRST CHICAGO CAPITAL MARKETS, INC.
By: ▇▇▇▇▇▇ BROTHERS INC.
By:
---------------------------------------
Name:
Title:
For itself and on behalf
of the several Underwriters
35
SCHEDULE I
Aggregate
Principal
Underwriters Amount
------------ ------------
▇▇▇▇▇▇ Brothers Inc. . . . . . . . . . . . . . . . . . . . . $ 50,000,000
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities, LLC . . . . . . . . . . . 33,000,000
First Chicago Capital Markets, Inc.. . . . . . . . . . . . . 17,000,000
------------
Total. . . . . . . . . . . . . . . . . . . . . . . . . . . $100,000,000
------------
------------
