U.S. $250,000,000*
Centerpoint Properties Trust
Medium-Term Notes
DISTRIBUTION AGREEMENT
October 23, 1998
Xxxxxx Brothers Inc.
First Chicago Capital Markets, Inc.
NationsBanc Xxxxxxxxxx Securities, LLC
c/x Xxxxxx Brothers, Inc.
3 World Financial Center
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Centerpoint Properties Trust, a Maryland real estate investment trust
(the "Company"), confirms its agreement with you (each, an "Agent," and,
together, the "Agents") with respect to the issuance and sale by the Company
of up to an aggregate of $250,000,000* in gross proceeds of its Medium-Term
Notes Due Nine Months or More from Date of Issuance (the "Notes"). The Notes
are to be issued from time to time pursuant to an indenture, dated as of
April 7, 1998, as it may be supplemented or amended from time to time, by and
between the Company and U.S. Bank Trust National Association, as trustee (the
"Trustee"), as supplemented by the First Supplemental Indenture, dated as of
April 7, 1998, and the Second Supplemental Indenture, dated as of October 23,
1998, by and between the Company and the Trustee (collectively, the
"Indenture").
The Notes shall have the maturity ranges, applicable interest rates or
interest rate formulas, specified currency, issue price, redemption and
repayment provisions and other terms set forth in the Prospectus referred to
in Section 1(a) as it may be amended or supplemented from time to time,
including any supplement providing for the interest rate, maturity and other
terms of any Note (a "Pricing Supplement"). The Notes will be issued, and
the terms thereof established, from time to time, by the Company in
accordance with the Indenture and the procedures referred to below. This
Agreement shall only apply to sales of the Notes and not to sales of any
other securities or evidences of indebtedness of the Company and only on the
specific terms set forth herein.
Subject to the terms and conditions stated herein and to the
reservation by the Company of the right to sell its Notes directly on its own
behalf, the Company hereby (i) appoints the Agents, on a non-exclusive basis,
as the agents of the Company for the purpose of soliciting and receiving
offers to purchase Notes from the Company and (ii) agrees that whenever the
Company determines to sell Notes directly to the Agents as principals it will
enter into a separate agreement (each a "Purchase Agreement"). Each such
Purchase Agreement, whether oral (and confirmed in writing, which may be by
facsimile transmission) or in writing, shall be with respect to such
information (as applicable) as specified in Exhibit C hereto, relating to
such sale in accordance with Section 2(e) hereof.
-------------------------------
* Or the U.S. dollar equivalent in certain specified foreign currencies or
currency units.
Section 1. Representations and Warranties.
The Company represents and warrants to the Agents as of the date
hereof, as of the Closing Date (defined herein) and as of the times referred
to in Sections 6(a) and 6(b) hereof (the Closing Date and each such time
being hereinafter sometimes referred to as a "Representation Date"), as
follows:
(a) A registration statement (File No. 333-49359) on Form S-3 with
respect to, among other things, the Notes has been prepared and filed by the
Company in conformity with the requirements of the Securities Act of 1933, as
amended (the "Act"), and the rules and regulations (the "Rules and
Regulations") of the Securities and Exchange Commission (the "Commission")
thereunder, and has become effective under the Act. The Indenture has been
qualified under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"). As used in this Agreement, (i) "Registration Statement"
means such registration statement when it became effective under the Act, and
as from time to time amended or supplemented thereafter (if any
post-effective amendment to any such registration statement has been filed
with the Commission prior to the execution and delivery of this Agreement,
the time the most recent such amendment has been declared effective by the
Commission); (ii) "Basic Prospectus" means the most recently filed prospectus
(including all documents incorporated therein by reference) included in the
Registration Statement; and (iii) "Prospectus" means the Basic Prospectus
(together with all documents incorporated therein by reference) and any
amendments or supplements thereto (including the applicable Pricing
Supplement) relating to the Notes, as filed with the Commission pursuant to
paragraph (b) of Rule 424 of the Rules and Regulations. The Commission has
not issued any order preventing or suspending the use of the Prospectus. Any
reference in this Agreement to amending or supplementing the Prospectus shall
be deemed to include the filing of materials incorporated by reference in the
Prospectus after the Closing Date (defined herein).
(b) The Registration Statement and each Prospectus conformed, and
the Registration Statement and each Prospectus will conform as of the
applicable Representation Date and at all times during each period during
which, in the opinion of counsel for the Agents, a prospectus relating to the
Notes is required to be delivered under the Act and solicitation has not been
suspended by the Company under Section 2(b) (each a "Marketing Period"), in
all respects to the requirements of the Act, the Securities Exchange Act of
1934, as amended (the "Exchange Act"), the Trust Indenture Act and the Rules
and Regulations; the Indenture, including any amendments and supplements
thereto, conforms with the requirements of the Trust Indenture Act and the
Rules and Regulations; and the Registration Statement and each Prospectus do
not, in the light of the circumstances under which they were made, and will
not as of the applicable Representation Date and at all times during each
Marketing Period, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading; PROVIDED, HOWEVER, that no
representation or warranty is made as to information contained in or omitted
from the Registration Statement or any Prospectus in reliance upon and in
conformity with written information furnished to the Company by the Agents
specifically for inclusion therein or to any statements in or omissions from
the statement of eligibility and qualification on Form T-1 (the "Form T-1")
of the Trustee under the Trust Indenture Act.
(c) 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.
(d) 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.
(e) This Agreement and the Indenture have been duly authorized,
executed and delivered by the Company and constitute the valid and binding
agreements 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 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 material 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 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 Agents, 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.
(f) The Notes have been validly authorized for issuance and sale
pursuant to this Agreement and, when the terms of the Notes and of their
issue and sale have been duly established in accordance with the Indenture
and this Agreement so as not to violate any applicable law or agreement or
instrument then binding on the Company, and the Notes have been duly
executed, authenticated, delivered and paid therefor as provided in this
Agreement and the Indenture, the Notes will be validly issued and
outstanding, and will constitute valid and legally binding obligations of the
Company entitled to the benefits of the Indenture and enforceable in
accordance with their terms and the terms of the Indenture. The Notes will
conform and the Indenture conforms to the descriptions thereof contained in
each Prospectus.
(g) Except as disclosed in the Registration Statement and
registration statement No. 333-18235, 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 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.
(h) 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 other than issuances of Common
Shares in connection with stock option and other benefit plans and
agreements, the conversion of debentures into Common
Shares, the conversion of Class B Common Shares into Common Shares, the
Company's Dividend Reinvestment and Stock Purchase Plan and the delayed
offering of Common Shares program described in the prospectus supplement
dated July 24, 1998 to Registration Statement No. 333-18235 or material
increase in the 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.
(i) 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 and will
present fairly at all times during each Marketing Period the financial
condition and results of operations of the entities purported to be shown
thereby; and said financial statements (including the related notes and
supporting schedules) have been and will be at all times during each
Marketing Period prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods involved.
(j) PricewaterhouseCoopers LLP, the successor to Coopers & Xxxxxxx
L.L.P., whose report appears in the Company's most recent Annual Report on
Form 10-K which is incorporated by reference in the Prospectus, and if not
the same auditors, the Company's outside auditors as of the applicable
Representation Date, are independent public accountants as required by the
Securities Act and the Rules and Regulations.
(k) (i) The Company and each of its subsidiaries have insurable
title in fee simple to all real property 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
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, which 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.
(l) 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.
(m) The Company and each of its subsidiaries own or possess
adequate rights to use all
material patents, patent applications, trademarks, service marks, trade
names, trademark registrations, service xxxx 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.
(n) 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.
(o) 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.
(p) 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.
(q) 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.
(r) 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
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.
(s) 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.
(t) 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,
other than in connection with stock option and other benefit plans and
agreements, the conversion of debentures into Common Shares, the conversion
of Class B Common Shares into Common Shares, the issuance of shares under the
Dividend Reinvestment and Stock Purchases Plan and the issuance of shares
under the delayed offering of Common Shares program described in the
prospectus Supplement, dated July 24, 1998, to Registration Statement No.
333-18235, (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 (other than regular quarterly dividends).
(u) 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, (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.
(v) 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.
(w) 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.
(x) 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 other 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 consolidated financial position, stockholders' equity, results of
operations, business or prospects of the Company and its subsidiaries; and
there has been no material spill, discharge, leak, emission, 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, emission,
injections, escapes, dumpings and releases, a material adverse effect on the
consolidated financial position, stockholders' equity, results of operations,
business or prospects of the Company and its subsidiaries.
(y) 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.
(z) The Company is organized in conformity with the requirements
for qualification as a real estate investment trust ("REIT") under the Code,
and its present and contemplated method of operation does and will enable it
to meet the requirements for taxation as a REIT under the Code for the year
ended December 31, 1994 and subsequent taxable years.
(aa) Each of the Company and its subsidiaries has title insurance on
all real property 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.
(ab) The documents incorporated by reference into any Prospectus
have been, and will be as of the applicable Representation Date and at all
times during each Marketing Period, prepared in conformity with the
applicable requirements of the Act and the Rules and Regulations and the
Exchange Act and the rules and regulations of the Commission thereunder; and
none of such documents contained, in the light of the circumstances under
which they were made, or will contain as of the applicable Representation
Date and at all times during each Marketing Period, an untrue statement of a
material fact or omitted, in the light of the circumstances under which they
were made, or will omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and such
documents have been, or will be, as of the applicable Representation Date and
at all times during each Marketing Period, timely filed as required thereby.
(ac) The Notes have been rated by a "nationally recognized
statistical rating agency" (as that term is defined by the Commission for the
purposes of Rule 436(g)(2) of the Rules and Regulations), including one or
both of Xxxxx'x Investor Services, Inc. and Standard & Poor's Corporation.
Section 2. Solicitations as Agents; Purchases as Principals
(a) APPOINTMENT. Subject to the terms and conditions stated
herein, and subject to the reservation by the Company of the right to sell
Notes directly on its own behalf and through or to other dealers or agents,
the Company hereby appoints the Agents on a non-exclusive basis as agents of
the Company for the purpose of soliciting or receiving offers to purchase the
Notes from the Company by others. The Company may from time to time offer
Notes for sale otherwise than through the Agents; PROVIDED, HOWEVER, that so
long as this Agreement shall be in effect the Company shall not solicit
offers to purchase Notes through any other agents without amending this
Agreement to appoint such agents as additional Agents hereunder on the same
terms and conditions as provided herein for the Agents and without giving the
Agents prior notice of such appointment. The consent of the then current
Agents shall not be necessary for such purpose. In the absence of such an
amendment, the Company may accept offers to purchase Notes from or through an
agent other than the Agents, provided that (i) the Company shall not have
solicited such offers, (ii) the Company and such agent shall have executed an
agreement with respect to such purchases having terms and conditions
(including, without limitation, commission rates) with respect to such
purchases substantially the same as the terms and conditions that would apply
to such purchases under this Agreement as if such agent was an Agent (which
may be accomplished by incorporating by reference in such agreement the terms
and conditions of this Agreement), and (iii) the Company shall provide the
Agents with a copy of such agreement following the execution thereof. On the
basis of the representations and warranties contained herein, but subject to
the terms and conditions herein set forth, the Agents agree, as Agents of the
Company, to use their reasonable efforts to solicit offers to purchase the
Notes upon the terms and conditions set forth in the
Prospectus. Except as otherwise provided herein, so long as this Agreement
shall remain in effect, the Company shall not, without the consent of the
Agents, solicit or accept offers to purchase Notes otherwise than through the
Agents; PROVIDED, HOWEVER, the Company expressly reserves the right to sell
Notes directly to investors, in which case no commission will be payable with
respect to any such sale. The Agents may also purchase Notes from the
Company as principals for purposes of resale, as more fully described in
paragraph (e) of this Section.
(b) SUSPENSION OF SOLICITATION. The Company reserves the right, in
its sole discretion, to suspend solicitation of offers to purchase the Notes
commencing at any time for any period of time or indefinitely. Upon receipt
of telephonic notice confirmed by facsimile notice from the Company, the
Agents will forthwith suspend solicitation of offers to purchase Notes from
the Company until such time as the Company has advised the Agents that such
solicitation may be resumed.
Upon receipt of notice from the Company as contemplated by
Section 3(c) hereof, the Agents shall suspend their solicitation of offers to
purchase Notes until such time as the Company shall have furnished them with
an amendment or supplement to the Registration Statement or the Prospectus,
as the case may be, contemplated by Section 3(c) and shall have advised the
Agents that such solicitation may be resumed.
(c) AGENTS' COMMISSION. Promptly upon the closing of the sale of
any Notes sold by the Company as a result of a solicitation made by or offer
to purchase received by the Agents, the Company agrees to pay the Agents a
commission, in the form of a discount, in accordance with the schedule set
forth in Schedule A hereto.
(d) SOLICITATION OF OFFERS. The Agents are authorized to solicit
offers to purchase the Notes only in denominations as are specified in the
Prospectus at a purchase price as shall be specified by the Company, in an
aggregate amount not to exceed the amount authorized by the Company from time
to time (less the aggregate amount of Notes either sold directly by the
Company or purchased from the Company by the Agents as principals or
purchased from the Company by other Agents). The Agents shall communicate to
the Company, orally or in writing, each reasonable offer to purchase Notes
received by them as Agents. The Company shall have the sole right to accept
offers to purchase the Notes and may reject any such offer in whole or in
part. The Agents shall have the right, in their discretion reasonably
exercised without advising the Company, to reject any offer to purchase the
Notes received by them, in whole or in part, and any such rejection shall not
be deemed a breach of their agreement contained herein.
No Note which the Company has agreed to sell pursuant to this
Agreement shall be deemed to have been purchased and paid for, or sold by the
Company, until such Note shall have been delivered to the purchaser thereof
against payment by such purchaser.
(e) PURCHASES AS PRINCIPALS. Each sale of Notes to the Agents as
principals, for resale to one or more investors or to another broker-dealer
(acting as principal for purposes of resale), shall be made in accordance
with the terms of this Agreement and a Purchase Agreement whether oral (and
confirmed in writing by such Agents to the Company, which may be by facsimile
transmission) or in writing, which will provide for the sale of such Notes
to, and the purchase thereof by, the Agents. A Purchase Agreement may also
specify certain provisions relating to the reoffering of such Notes by the
Agents. The commitment of the Agents to purchase Notes from the Company as
principals shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and shall be
subject to the terms and conditions herein set forth. Each Purchase
Agreement shall contain, to the extent applicable, those terms specified in
Exhibit A hereto, including the time and date (each such time and date being
referred to herein as a "Time of Delivery") and place of delivery of and
payment for such Notes and such other information (as applicable) as is set
forth in Exhibit C hereto. The Company agrees that if the Agents purchase
Notes as principals for resale such Agents
shall receive such compensation, in the form of a discount or otherwise, as
shall be indicated in the applicable Purchase Agreement or, if no
compensation is indicated therein, a commission in accordance with Schedule A
hereto. The Agents may utilize a selling or dealer group in connection with
the resale of such Notes. In addition, the Agents may offer the Notes they
have purchased as principals to other dealers. The Agents may sell Notes to
any dealer at a discount and, unless otherwise specified in the applicable
Pricing Supplement, such discount allowed to any dealer will not be in excess
of 66 2/3% of the discount to be received by such Agents from the Company.
Such Purchase Agreement shall also specify any requirements for delivery of
opinions of counsel, accountant's letters and officers' certificates pursuant
to Section 5 hereof.
(f) ADMINISTRATIVE PROCEDURES. The purchase price, interest rate
or formula, maturity date and other terms of the Notes (as applicable)
specified in Exhibit A hereto shall be agreed upon by the Company and the
Agents and specified in a Pricing Supplement to be prepared in connection
with each sale of Notes. Administrative procedures respecting the sale of
Notes (the "Procedures") are set forth in Exhibit B hereto and may be amended
in writing from time to time by the Agents and the Company. The Agents and
the Company agree to perform the respective duties and obligations
specifically provided to be performed by each of them herein and in the
Procedures. The Procedures shall apply to all transactions contemplated
hereunder including sales of Notes to the Agents as principals pursuant to a
Purchase Agreement, unless otherwise set forth in such Purchase Agreement.
(g) DELIVERY OF DOCUMENTS. The documents required to be delivered
by Section 5 hereof shall be delivered at the offices of Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, not
later than 10:00 A.M., New York City time, on the date of this Agreement or
at such later time as may be mutually agreed upon by the Company and the
Agents, which in no event shall be later than the time at which the Agent
commences solicitation of offers to purchase Notes hereunder (the "Closing
Date").
Section 3. Covenants of the Company
The Company covenants and agrees:
(a) DELIVERY OF SIGNED REGISTRATION STATEMENT. To furnish promptly
to the Agents and to their counsel a signed copy of the Registration
Statement as originally filed and each amendment or supplement thereto.
(b) DELIVERY OF OTHER DOCUMENTS. To deliver promptly to the
Agents, and in such number as they may request, each of the following
documents: (i) conformed copies of the Registration Statement (excluding
exhibits other than the computation of the ratio of earnings to fixed
charges, the Indenture, this Agreement and such other exhibits that the
Agents may request), (ii) the Basic Prospectus, (iii) each Prospectus and
(iv) during any Marketing Period, any documents incorporated by reference in
the Prospectus.
(c) REVISIONS TO PROSPECTUS - MATERIAL CHANGES. If, during any
Marketing Period, any event occurs as a result of which the Prospectus would
include an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, not misleading, or if it is
necessary at any time to amend any Prospectus to comply with the Act, to
notify the Agents promptly, in writing, to suspend solicitation of purchases
of the Notes; and if the Company shall decide to amend or supplement the
Registration Statement or any Prospectus, to promptly advise the Agents by
telephone (with confirmation in writing) and to promptly, in writing, prepare
and file with the Commission an amendment or supplement which will correct
such statement or omission or an amendment which will effect such compliance;
PROVIDED, HOWEVER, that if during the period referred to above the Agents
shall own any Notes which they have purchased from the Company as principals
with the intention of reselling them, the Company shall promptly prepare and
timely file with the
Commission any amendment or supplement to the Registration
Statement or any Prospectus that may, in the judgment of the Company or the
Agents, be required by the Act or requested by the Commission.
(d) COMMISSION FILINGS. To timely file with the Commission during
any Marketing Period, all documents (and any amendments to previously filed
documents) required to be filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act.
(e) COPIES OF FILINGS WITH COMMISSION. Prior to filing with the
Commission during any Marketing Period, (i) any amendment or supplement to
the Registration Statement, (ii) any amendment or supplement to any
Prospectus or (iii) any document incorporated by reference in any of the
foregoing or any amendment of or supplement to any such incorporated
document, to furnish a copy thereof to the Agents.
(f) NOTICE TO AGENTS OF CERTAIN EVENTS. To advise the Agents
immediately (i) when any post-effective amendment to the Registration
Statement relating to or covering the Notes becomes effective, (ii) of any
request or proposed request by the Commission for an amendment or supplement
to the Registration Statement, to any Prospectus, to any document
incorporated by reference in any of the foregoing or for any additional
information and the Company will afford the Agents a reasonable opportunity
to comment on any such proposed amendment or supplement, (iii) of the
issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or any part thereof or any order directed to any
Prospectus or any document incorporated therein by reference or the
initiation or threat of any stop order proceeding or of any challenge to the
accuracy or adequacy of any document incorporated by reference in any
Prospectus, (iv) of receipt by the Company of any notification with respect
to the suspension of the qualification of the Notes for sale in any
jurisdiction or the initiation or threat of any proceeding for that purpose,
(v) of any downgrading in the rating of the Notes or any other debt
securities of the Company, or any proposal to downgrade the rating of the
Notes or any other debt securities of the Company, by any "nationally
recognized statistical rating organization" (as defined for purposes of Rule
436(g) of the Rules and Regulations), or any public announcement that any
such organization has under surveillance or review its rating of any debt
securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading of such rating) as soon as the Company learns of any such
downgrading, proposal to downgrade or public announcement and (vi) of the
happening of any event which makes untrue any statement of a material fact
made in the Registration Statement or any Prospectus or which requires the
making of a change in the Registration Statement or any Prospectus in order
to make any material statement therein not misleading.
(g) STOP ORDERS. If, during any Marketing Period, the Commission
shall issue a stop order suspending the effectiveness of the Registration
Statement, to make every reasonable effort to obtain the lifting of that
order at the earliest possible time.
(h) EARNINGS STATEMENTS. As soon as practicable, but not later
than 18 months, after the date of each acceptance by the Company of an offer
to purchase Notes hereunder, to make generally available to its security
holders an earnings statement covering a period of at least 12 months
beginning after the later of (i) the effective date of the Registration
Statement, (ii) the effective date of the most recent post-effective
amendment to the Registration Statement to become effective prior to the date
of such acceptance and (iii) the date of the Company's most recent Annual
Report on Form 10-K filed with the Commission prior to the date of such
acceptance which will satisfy the provisions of Section 11(a) of the Act
(including, at the option of the Company, Rule 158 of the Rules and
Regulations);
(i) COPIES OF REPORTS, RELEASES AND FINANCIAL STATEMENTS. So long
as any of the Notes are outstanding, to furnish to the Agents, not later than
the time the Company makes the same available to others, copies of all public
reports or releases and all reports and financial statements furnished by the
Company to any securities exchange on which the Notes are 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.
(j) BLUE SKY QUALIFICATIONS. To endeavor, in cooperation with the
Agents, to qualify the Notes for offering and sale under the securities laws
of such jurisdictions as the Agents may designate, and to maintain such
qualifications in effect for as long as may be required for the distribution
of the Notes; and to file such statements and reports as may be required by
the laws of each jurisdiction in which the Notes have been qualified as above
provided; PROVIDED, HOWEVER, that the Company shall not be obligated to file
any general consent to service of process or to qualify as a foreign entity
in any jurisdiction in which it is not so qualified.
(k) HOLDBACK. Between the date of a Purchase Agreement and the
date of delivery of the Notes with respect thereto, the Company will not,
without the prior written consent of Xxxxxx Brothers, offer or sell, or enter
into any agreement to sell, any of its debt securities, other than borrowings
under the Company's revolving credit agreements and lines of credit, as may
be amended, supplemented or replaced, the private placement of securities and
issuances of its commercial paper.
(l) PRICING SUPPLEMENT. To prepare, with respect to any Notes to
be sold through or to the Agents pursuant to this Agreement, a Pricing
Supplement with respect to such Notes in a form previously approved by the
Agents and to file such Pricing Supplement pursuant to Rule 424 of the Rules
and Regulations.
Section 4. Payment of Expenses
The Company will pay: (i) the costs incident to the authorization,
issuance, sale and delivery of the Notes and any taxes payable in that
connection; (ii) the costs incident to the preparation, printing and filing
under the Act of the Registration Statement and any amendments and exhibits
thereto; (iii) the costs incident to the preparation, printing and filing of
any document and any amendments and exhibits thereto required to be filed by
the Company under the Exchange Act; (iv) the costs of distributing the
Registration Statement, as originally filed, and each amendment and
post-effective amendment thereof (including exhibits), the Basic Prospectus,
each Prospectus, any supplement or amendment to any Prospectus and any
documents incorporated by reference in any of the foregoing documents; (v)
the fees and disbursements of the Trustee, any paying agent, any calculation
agent, any exchange rate agent and any other agents appointed by the Company,
and their respective counsel; (vi) the costs and fees in connection with the
listing of the Notes on any securities exchange; (vii) the cost and fees in
connection with any filings with the National Association of Securities
Dealers, Inc.; (viii) the fees and disbursements of counsel to the Company
and counsel to the Agents; (ix) the fees paid to rating agencies in
connection with the rating of the Notes; (x) the fees and expenses of
qualifying the Notes under the securities laws of the several jurisdictions
as provided in Section 3(j) hereof and of preparing and printing a Blue Sky
Memorandum and a memorandum concerning the legality of the Notes as an
investment (including reasonable fees and expenses of counsel for the Agents
in connection therewith); (xi) all advertising expenses in connection with
the offering of the Notes incurred with the consent of the Company; and (xii)
all other costs and expenses arising out of the transactions contemplated
hereunder and incident to the performance of the Company's obligations under
this Agreement.
Section 5. Conditions of Obligations of Agents
The obligation of the Agents, as agents of the Company, under this
Agreement to solicit offers to purchase the Notes, the obligation of any
person who has agreed to purchase Notes to make payment for and take delivery
of Notes, and the obligation of the Agents to purchase Notes pursuant to any
Purchase Agreement, are subject to the accuracy, on each Representation Date,
of the representations
and warranties of the Company contained herein, to the accuracy of the
statements of the Company's officers made in any certificate furnished
pursuant to the provisions hereof, to the performance by the Company of its
respective obligations hereunder, and to each of the following additional
terms and conditions:
(a) REGISTRATION STATEMENT. The Prospectus as amended or
supplemented (including the Pricing Supplement) with respect to such Notes
shall have been filed with the Commission pursuant to Rule 424(b) of the
Rules and Regulations within the applicable time period prescribed for such
filing by the Rules and Regulations and in accordance with Section 3(l)
hereof; no stop order suspending the effectiveness of the Registration
Statement or any part thereof nor any order directed to any document
incorporated by reference in any Prospectus shall have been issued and no
stop order proceeding shall have been initiated or threatened by the
Commission and no challenge shall have been made to the accuracy or adequacy
of any document incorporated by reference in any Prospectus; any request of
the Commission for inclusion of additional information in the Registration
Statement or any Prospectus or otherwise shall have been complied with; and
the Company shall not have filed with the Commission any amendment or
supplement to the Registration Statement or any Prospectus (or any document
incorporated by reference therein) without affording the Agents a reasonable
opportunity to comment thereon (which in the case of a Form 10-Q or Form 8-K
may be a one day time period for such comments).
(b) NO SUSPENSION OF SALE OF THE NOTES. No order suspending the
sale of the Notes in any jurisdiction designated by the Agents pursuant to
Section 3(j) hereof shall have been issued, and no proceeding for that
purpose shall have been initiated or threatened.
(c) NO MATERIAL OMISSIONS OR UNTRUE STATEMENTS. The Agents shall
not have discovered and disclosed to the Company that the Registration
Statement or any Prospectus contains an untrue statement of a fact which, in
the opinion of counsel for the Agents, 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.
(d) LEGAL MATTERS SATISFACTORY TO COUNSEL. All corporate
proceedings and other legal matters incident to the authorization, form and
validity of this Agreement, the Notes, the Indenture, the form of the
Registration Statement, each Prospectus and all other legal matters relating
to this Agreement and the transactions contemplated hereby shall be
satisfactory in all respects to counsel for the Agents, and the Company shall
have furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(e) OPINION OF COMPANY COUNSEL. At the Closing Date, the Agents
shall have received the opinion, addressed to the Agents and dated the
Closing Date, of Ungaretti & Xxxxxx, counsel to the Company, in form and
substance satisfactory to the Agents and their counsel, to the effect that:
(i) Each of the Company and its subsidiaries has been duly
organized 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 beneficial interest 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, 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;
(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;
(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 issuance and sale of the Notes have been duly
authorized by the Company; the Notes, when (a) executed and authenticated
in accordance with the terms of the Indenture, (b) the terms thereof have
been fixed by the Board of Trustees of the Company in conformity with the
Indenture, and (c) issued, sold and delivered to and paid for by the
Agents in accordance with the terms of the Agreement, will constitute
valid and binding obligations of the Company enforceable in accordance
with their terms and entitled to the benefits of the Indenture, except
(1) to the extent that enforcement thereof may be limited by (a)
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance
or transfer 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 in equity), (2) requirements that a claim with respect to any
Notes denominated other than in U.S. dollars (or a judgment denominated
other than in U.S. dollars in respect of such claims) be converted into
U.S. dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law and (3) governmental authority to limit, delay
or prohibit the making of payments in foreign currency, currency units or
composite currencies, outside the United States. For purposes of the
foregoing opinion, such counsel may assume that at the time of the
issuance, sale and delivery of each particular Note there will not have
occurred any change in law currently in effect affecting the validity,
legally binding character or enforceability of such Note and that the
issuance, sale and delivery of such Note, all of the terms of such Note
and the performance by the Company of its obligations thereunder will
comply with applicable law and with each requirement or restrictions
imposed by any court or governmental body having jurisdiction over the
Company and will not result in a default under or a breach of any
agreement or instrument then binding upon the Company.
(x) The statements contained in the Prospectus under the
captions "Description of Notes," "Certain United States Federal Income
Tax Considerations," "Description of Debt Securities," "Description of
Shares of Beneficial Interest," "Description of Securities Warrants,"
"Certain Provisions of the Company's Declaration of Trust and By-Laws"
and "Federal Income Tax Considerations Relating to the Company's REIT
Status," 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 Agents may rely upon such opinion as if it
were addressed to them;
(xi) 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 Act
or by the Rules and Regulations thereunder 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;
(xii) Except as disclosed in the Registration Statement and
registration statement No. 333-18235, 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 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 Act;
(xiii) 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 of the
Commission thereunder;
(xiv) The execution, delivery and performance of this Agreement
and the Purchase Agreement, if any, and the compliance by the Company and
its subsidiaries with all of the provisions of this Agreement, the
Purchase Agreement, if any, 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 material
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 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 Agents, 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.
In rendering such opinion, such counsel may rely as to matters of Maryland
law on the opinion of Xxxxxx, Feinblatt, Rothman, Hofberger & Xxxxxxxxx, LLC,
which opinion shall be in form and substance satisfactory to counsel for the
Agents; PROVIDED, that such counsel shall state that it believes that both
the Agents and it are justified in relying upon such opinion. Such counsel
shall also have furnished to the Agents a written statement, addressed to the
Agents and dated the Closing Date, in form and substance reasonably
satisfactory to the Agents, 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 its effective date and as of the Closing 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 Closing 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.
(f) OFFICERS' CERTIFICATE. The Company shall have furnished to the
Agents on the Closing Date a certificate, dated the Closing Date, of the
Chairman of the Board, the President or a Vice President and the Chief
Financial Officer of the Company stating that to the best of such officers'
knowledge:
(i) The representations, warranties and agreements of the
Company in Section 1 hereof are true and correct as of the Closing Date;
the Company has complied with all its agreements contained herein; and
the conditions set forth in Sections 5(a) and 5(b) hereof have been
fulfilled;
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose
is pending or threatened by the Commission;
(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) the Registration Statement, as
of its effective date, did not contain any untrue statement of a material
fact or omitted to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, (B) the
Prospectus does not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and (C) since
the effective date of the Registration Statement there has not occurred
any event required to be set forth in an amended or supplemented
prospectus which has not been so set forth.
(g) ACCOUNTANT'S LETTER. The Company shall have furnished to the
Agents on the Closing Date a letter of Pricewaterhouse Coopers LLP addressed
jointly to the Company and the Agents and dated the Closing Date, of the type
described in the American Institute of Certified Public Accountants'
Statement on Auditing Standards No. 49, in form and substance reasonably
satisfactory to the Agents confirming that they are independent accountants
within the meaning of the Act and the applicable published Rules and
Regulations thereunder and stating in effect that:
(i) In their opinion, the financial statements and schedules
examined by them and included in the prospectus contained in the
Registration Statement comply in form in all material respects with the
applicable accounting requirements of the Act and the related published
Rules and Regulations;
(ii) They have made a review of any unaudited financial
statements included in the Prospectus in accordance with standards
established by the American Institute of Certified Public Accountants, as
indicated in their report or reports attached to such letter;
(iii) On the basis of the review referred to in (ii) above and a
reading of the latest available interim financial statements of the
Company, inquiries of officials of the Company who have responsibility
for financial and accounting matters and other specified procedures,
nothing came to their attention that caused them to believe that:
(A) the unaudited financial statements, if any, included
in the Prospectus do not comply in form in all material respects
with the applicable accounting requirements of the Act and the
related published Rules and Regulations or are not in conformity
with generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial
statements included in the Prospectus;
(B) the unaudited capsule information, if any, included
in the Prospectus does not agree with the amounts set forth in the
unaudited consolidated financial statements from which it was
derived or was not determined on a basis substantially consistent
with that of the audited financial statements included in the
Prospectus;
(C) at the date of the latest available balance sheet
read by such accountants, or at a subsequent specified date not
more than five days prior to the Closing Date, there was any
change in the capital stock, any increase in debt of the Company
and consolidated subsidiaries or, at the date of the latest
available balance sheet read by such accountants, there was any
decrease in consolidated net assets as compared with amounts shown
on the latest balance sheet included in the Prospectus; or
(D) for the period from the date of the latest income
statement included in the Prospectus to the closing date of the
latest available income statement read by such accountants there
were any decreases, as compared with the corresponding period of
the previous year, in consolidated rental income, total revenues,
net income or in the ratio of earnings to fixed charges;
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(iv) They have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Prospectus (in each case
to the extent that such dollar amounts, percentages and other financial
information are derived from the general accounting records of the
Company and its subsidiaries subject to the internal controls of the
Company's accounting system or are derived directly from such records
by analysis or computation) with the results obtained from inquiries,
a reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts, percentages
and other financial information to be in agreement with such results,
except as otherwise specified in such letter.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed included in the
Prospectus for purposes of this subsection.
(h) The Agents shall have received from Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, counsel to the Agents, such opinion or opinions, dated
the Closing Date, with respect to the issuance and sale of the Notes, the
Indenture, the Registration Statement, the Prospectus and other related
matters as the Agents may reasonably require, and the Company shall have
furnished to such counsel such documents as they may request for the purpose
of enabling them to pass upon such matters.
(i) ADDITIONAL CONDITIONS. There shall not have occurred: (i) 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, stockholders'
equity, business, properties, condition (financial or other), results of
operations or prospects of the Company and its subsidiaries which in the
opinion of the Agents, materially impairs the investment quality of the
Notes; (ii) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange, the American Stock Exchange or the
over-the-counter market or the establishment of minimum prices on such
exchanges or such market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction; (iii) a
general moratorium on commercial banking activities declared by Federal,
Maryland or New York State authorities; (iv) any downgrading in the rating
accorded the Company's debt securities by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g) of
the Rules and Regulations), or any public announcement that any such
organization has under surveillance or review its rating of any debt
securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (v) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of war by
Congress or any other substantial national calamity or emergency; or (vi) any
material adverse change in the existing financial, political or economic
conditions in the United States, including any effect of international
conditions on the financial markets in the United States, that in the
judgment of the Agents makes it impracticable or inadvisable to proceed with
the solicitation of offers to purchase Notes or the purchase of Notes from
the Company as principals pursuant to a Purchase Agreement, as the case may
be.
(j) OTHER INFORMATION AND DOCUMENTATION. Prior to the Closing
Date, the Company shall have furnished to the Agents such further
information, certificates and documents as the Agents or counsel to the
Agents may reasonably request.
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 the form and substance satisfactory to
counsel for the Agents.
Section 6. Additional Covenants of the Company.
The Company covenants and agrees that:
(a) ACCEPTANCE OF OFFER AFFIRMS REPRESENTATIONS AND WARRANTIES.
Each acceptance by the
Company of an offer for the purchase of Notes shall be deemed to be an
affirmation that the representations and warranties of the Company contained
in this Agreement and in any certificate theretofore given to the Agents
pursuant hereto are true and correct at the time of such acceptance, and an
undertaking that such representations and warranties will be true and correct
at the time of delivery to the purchaser or his agent of the Notes relating
to such acceptance as though made at and as of each such time (and such
representations and warranties shall relate to the Registration Statement and
the Prospectus as amended or supplemented to each such time).
(b) SUBSEQUENT DELIVERY OF OFFICERS' CERTIFICATES. The Company
agrees that during each Marketing Period, each time that the Registration
Statement or any Prospectus shall be amended or supplemented (other than by a
Pricing Supplement providing solely for the interest rates or maturities of
the Notes or the principal amount of Notes remaining to be sold or similar
changes), each time the Company (i) sells Notes to the Agents as principals
and the Purchase Agreement specifies the delivery of an officers' certificate
under this Section 6(b) as a condition to the purchase of Notes pursuant to
such Purchase Agreement (ii) files an annual report on Form 10-K under the
Exchange Act, (iii) files its quarterly reports on Form 10-Q under the
Exchange act or (iv) files a current report on Form 8-K under the Exchange
Act (other than any Form 8-K relating solely to the issuance or offering of
securities other than the Notes), the Company shall submit to the Agents (but
in the case of (iii) and (iv) above, only if requested by the Agents) a
certificate, (y) as of the date of such amendment, supplement, Time of
Delivery relating to such sale or filing or (z) if such amendment, supplement
or filing was not filed during a Marketing Period, as of the first day of the
next succeeding Marketing Period, representing that the statements contained
in the certificate referred to in Section 5(f) hereof which was last
furnished to the Agents are true and correct at the time of such amendment,
supplement or filing, as the case may be, as though made at and as of such
time (except that such statements shall be deemed to relate to the
Registration Statement and each Prospectus as amended and supplemented to
such time).
(c) SUBSEQUENT DELIVERY OF LEGAL OPINION. The Company agrees that
during each Marketing Period, each time that the Registration Statement or
any Prospectus shall be amended or supplemented (other than by a Pricing
Supplement providing solely for the interest rates or maturities of the Notes
or the principal amount of Notes remaining to be sold or similar changes),
each time the Company (i) sells Notes to the Agents as principals and the
Purchase Agreement specifies the delivery of a legal opinion under this
Section 6(c) as a condition to the purchase of Notes pursuant to such
Purchase Agreement (ii) files an annual report on Form 10-K under the
Exchange Act, (iii) files its quarterly reports on Form 10-Q under the
Exchange Act or (iv) files a current report on Form 8-K under the Exchange
Act (other than any Form 8-K relating solely to the issuance or offering of
securities other than the Notes), the Company shall (but in the case of (iii)
or (iv) above only if requested by the Agents), (y) concurrently with such
amendment, supplement, Time of Delivery relating to such sale or filing or
(z) if such amendment, supplement or filing was not filed during a Marketing
Period, on the first day of the next succeeding Marketing Period, furnish the
Agents and their counsel with the written opinion of outside counsel to the
Company, addressed to the Agents and dated the date of delivery of such
opinion, in form satisfactory to the Agents, to the same effect as the
opinion referred to in Section 5(e) hereof, but modified, as necessary, to
relate to the Registration Statement and each Prospectus as amended or
supplemented to the time of delivery of such opinion; PROVIDED, HOWEVER, that
in lieu of such opinion, such counsel may furnish the Agents with a letter to
the effect that the Agents may rely on such prior opinion to the same extent
as though it was dated the date of such letter authorizing reliance (except
that statements in such prior opinion shall be deemed to relate to the
Registration Statement and each Prospectus as amended or supplemented to the
time of delivery of such letter authorizing reliance).
(d) SUBSEQUENT DELIVERY OF ACCOUNTANT'S LETTERS. The Company
agrees that during each Marketing Period, each time that the Registration
Statement or any Prospectus shall be amended or supplemented to include
additional financial information, each time the Company (i) sells Notes to
the Agents as principals and the Purchase Agreement specifies the delivery of
a letter under this Section
6(d) as a condition to the purchase of Notes pursuant to such Purchase
Agreement (ii) files an annual report on Form 10-K under the Exchange Act,
(iii) files its quarterly reports on Form 10-Q under the Exchange Act or (iv)
files a current report on Form 8-K under the Exchange Act (other than any
Form 8-K relating solely to the issuance or offering of securities other than
the Notes), the Company shall (but in the case of (iii) or (iv) above only if
requested by the Agents and only if such documents include additional
financial information) cause Pricewaterhouse Coopers LLP (or other
independent accounts of the Company acceptable to the Agents) to furnish the
Agents, (y) concurrently with such amendment, supplement, Time of Delivery
relating to such sale or filing or (z) if such amendment, supplement, or
filing was not filed during a Marketing Period, on the first day of the next
succeeding Marketing Period, a letter, addressed jointly to the Company and
the Agents and dated the date of delivery of such letter, in form and
substance reasonably satisfactory to the Agents, to the same effect as the
letter referred to in Section 5(g) hereof but modified to relate to the
Registration Statement and each Prospectus, as amended and supplemented to
the date of such letter, with such changes as may be necessary to reflect
changes in the financial statements and other information derived from the
accounting records of the Company; PROVIDED, HOWEVER, that if the
Registration Statement or any Prospectus is amended or supplemented solely to
include financial information as of and for a fiscal quarter, such
accountants may limit the scope of such letter to the unaudited financial
statements included in such amendment or supplement unless there is contained
therein any other accounting, financial or statistical information that, in
the reasonable judgment of the Agents, should be covered by such letter, in
which event such letter shall also cover such other information.
(e) OPINION ON SETTLEMENT DATE. On any settlement date for the
sale of Notes, the Company shall, if requested by the Agents, furnish the
Agents with a written opinion of outside counsel to the Company, dated such
settlement date, in form satisfactory to the Agents, to the effect set forth
in Section 5(e) hereof, but modified, as necessary, to relate to the
Prospectus relating to the Notes to be delivered on such settlement date;
PROVIDED, HOWEVER, that in lieu of such opinion, such counsel may furnish the
Agents with a letter to the effect that the Agents may rely on such prior
opinion to the same extent as though it was dated such settlement date
(except that statements in such prior opinion shall be deemed to relate to
the Registration Statement and such Prospectus as amended or supplemented to
the time of delivery of such letter authorizing reliance).
Section 7. Indemnification and Contribution
(a) INDEMNIFICATION OF AGENTS. The Company shall indemnify and
hold harmless the Agents and each person, if any, who controls the Agents
within the meaning of the Act from and against any loss, claim, damage or
liability, joint or several, and any action in respect thereof, to which the
Agents or controlling persons may become subject, under the Act, the Exchange
Act or other federal or state statutory law or regulation, at common law or
otherwise, insofar as such loss, claim, damage, liability or action arises
out of, or is based upon, any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement or the Prospectus, or
arises out of, or is 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 not misleading, and shall reimburse the Agents and
controlling persons for any legal and other expenses reasonably incurred by
the Agents or controlling persons in investigating or defending or preparing
to defend against 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, liability or action arises out
of, or is based upon, any untrue statement or alleged untrue statement or
omission or alleged omission made in the Form T-1 or made in the Registration
Statement or the Prospectus in reliance upon and in conformity with written
information furnished to the Company by the Agents specifically for inclusion
therein. The foregoing indemnity agreement is in addition to any liability
which the Company may otherwise have to the Agents or controlling persons.
(b) INDEMNIFICATION OF THE COMPANY. The Agents shall indemnify and
hold harmless the Company, each of the Company's directors (including any
person who, with his or her consent, is named in the Registration Statement
as about to become a director of the Company), each of its officers
who signed the Registration Statement and any person who controls the Company
within the meaning of the Act from and against any loss, claim, damage or
liability, joint or several, and any action in respect thereof, to which the
Company or any such director, officer or controlling person may become
subject, under the Act, the Exchange Act or federal or state statutory law or
regulation, at common law or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus, or arises out of, or is 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 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 the Agents
specifically for inclusion therein, and shall reimburse the Company or any
such director, officer or controlling person for any legal and other expenses
reasonably incurred by such indemnified party in investigating or defending
or preparing to defend against any such loss, claim, damage, liability or
action. The foregoing indemnity agreement is in addition to any liability
which the Agents may otherwise have to the Company or any such director,
officer or controlling person.
(c) NOTICE. Promptly after receipt by an indemnified party under
this Section 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, 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 to an indemnified party otherwise than under
this Section except to the extent it has been materially prejudiced by such
failure. If any such claim or action shall be brought against an 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 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 Agents shall have the right to
employ counsel to represent the Agents if, in the reasonable judgment of the
Agents, it is advisable for the Agents to be represented by separate counsel,
and in that event the fees and expenses of such counsel shall be paid by the
Company. The indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes
an unconditional release of such indemnified party from all liability on
claims that are the subject matter of such proceeding.
(d) CONTRIBUTION. If the indemnification provided for in this
Section 7 shall for any reason be unavailable to an indemnified party under
Section 7(a) or 7(b) hereof 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 Agents 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, 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 Agents 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 considerations. The relative benefits
received by the Company on the one hand and the Agents 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 (before deducting expenses)
received by the Company bears to the total commissions received by the Agents
with respect to such offering. 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 Agents, 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 Agents
agree that it would not be just and equitable if contributions pursuant to
this Section 7(d) were to be determined by pro rata allocation 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 7(d) shall be
deemed to include, for purposes of this Section 7(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 7(d), the Agents shall not be required to
contribute any amount in excess of the amount by which the total price at
which the Notes sold through the Agents and distributed to the public were
offered to the public exceeds the amount of any damages which the Agents have
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 Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
Section 8. Status of the Agents
In soliciting offers to purchase the Notes from the Company pursuant
to this Agreement (other than in respect of any Purchase Agreement), the
Agents are acting solely as agents for the Company and not as principals.
The Agents will make reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Notes from the Company
has been solicited by the Agents and accepted by the Company but the Agents
shall have no liability to the Company in the event any such purchase is not
consummated for any reason other than breach of this Agreement by any of the
Agents. If the Company shall default in its obligations to deliver Notes to
a purchaser whose offer it has accepted, the Company shall (i) hold the
Agents harmless against any loss, claim or damage arising from or as a result
of such default by the Company and (ii), in particular, pay to the Agents any
commission to which they would be entitled in connection with such sale.
Section 9. Representations, Warranties and Obligations to Survive Delivery
The respective indemnities, agreements, representations, warranties
and other statements of the Company and the Agents contained in this
Agreement, or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain operative and in full force and effect, regardless of
any investigation made by or on behalf of the Agents or any person
controlling the Agents or by or on behalf of the Company, and shall survive
each delivery of and payment for any of the Notes.
Section 10. Termination
This Agreement may be terminated for any reason with respect to any
party hereto, at any time, by any party hereto upon the giving of one day's
written notice of such termination to the other parties hereto. If, at the
time of a termination, an offer to purchase any of the Notes has been
accepted by the Company but the time of delivery to the purchaser has not
occurred, the provisions of this Agreement shall remain in effect until such
Notes are delivered. The provisions of Sections 2(c) (only to the extent of
any sales made prior to termination), 3(d), 3(h), 4, 7, 8 and 9 hereof shall
survive any termination of this Agreement.
Section 11. Sales of Notes Denominated in a Foreign Currency and Indexed
Notes
If at any time the Company and the Agents shall determine to issue and
sell Notes denominated in a currency or currency unit other than U.S.
Dollars, which other currency may include a composite currency, or with
respect to which an index is used to determine the amounts of payments of
principal and any premium or interest, the Company and the Agents shall
execute and deliver an Amendment (a "Foreign Currency Amendment" or "Indexed
Note Amendment," as the case may be) in the form attached hereto as Exhibit
D. Such amendment shall establish, as appropriate additions and
modifications that shall apply to the sales, whether offered on an agency or
principal basis, of the Notes covered thereby.
Section 12. Notices
Except as otherwise provided herein, all notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Agents shall be directed to them as
follows: Xxxxxx Brothers, Inc. 0 Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxx Xxxx Xxxx Xxxxxxxxxx, 0xx Xxxxx; Telephone No.:
(000) 000-0000; Telecopy No.: (000) 000-0000, First Chicago Capital Markets,
Inc. 0 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000-0000,
Attention: Corporate Securities Structuring; Telephone No.: (000) 000-0000;
Telecopy No.: (000) 000-0000 and NationsBanc Xxxxxxxxxx Securities, LLC 000
Xxxxx Xxxxx Xxxxxx, XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000,
Attention: Xxxxxxxx Xxxxx; Telephone No. (000) 000-0000; Telecopy No.: (704)
388-9939; notices to the Company shall be directed to it as follows: 0000
Xxxxx Xxxx, Xxx Xxxxx, Xxxxxxxx 00000; Telephone No.: (000) 000-0000,
Telecopy No.: (000) 000-0000.
Section 13. Binding Effect; Benefits
This Agreement shall be binding upon the Agents, 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 the Agents within the meaning of
Section 15 of the Act, and (b) the indemnity agreement of the Agents
contained in Section 7 hereof shall be deemed to be for the benefit of
directors of the Company (including any person who, with his or her consent,
is named in the Registration Statement as about to become a director of the
Company), officers of the Company who have signed the Registration Statement
and any person controlling the Company. Nothing in this Agreement is
intended or shall be construed to give any person, other than the person
referred to in this Section, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
Section 14. Governing Law; Counterparts
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York. This Agreement may be executed in
counterparts and the executed counterparts shall together constitute a single
instrument.
Section 15. Paragraph Headings
The paragraph headings used in this Distribution Agreement are for
convenience of reference only, and are not to affect the construction hereof
or be taken into consideration in the interpretation hereof.
If the foregoing correctly sets forth our agreement, please
indicate your acceptance hereof in the space provided for that purpose below.
Very truly yours,
Centerpoint Properties Trust
By:
---------------------------------
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXX BROTHERS INC.
By:
---------------------------------
FIRST CHICAGO CAPITAL MARKETS, INC.
By:
---------------------------------
NATIONSBANC XXXXXXXXXX SECURITIES LLC
By:
---------------------------------
Schedule A
Centerpoint Properties Trust
Medium-Term Notes, Series A
SCHEDULE OF PAYMENTS
The Company agrees to pay each Agent a commission equal to the
following percentage of the aggregate U.S. dollar equivalent of the principal
amount of Notes:
----------------------------------------------------------------------------
----------------------------------------------------------------------------
Term Commission Rate
----------------------------------------------------------------------------
9 months to less than 12 months [ ]%
----------------------------------------------------------------------------
12 months to less than 18 months [ ]%
----------------------------------------------------------------------------
18 months to less than 2 years [ ]%
----------------------------------------------------------------------------
2 years to less than 3 years [ ]%
----------------------------------------------------------------------------
3 years to less than 4 years [ ]%
----------------------------------------------------------------------------
4 years to less than 5 years [ ]%
----------------------------------------------------------------------------
5 years to less than 6 years [ ]%
----------------------------------------------------------------------------
6 years to less than 7 years [ ]%
----------------------------------------------------------------------------
7 years to less than 10 years [ ]%
----------------------------------------------------------------------------
10 years to less than 15 years [ ]%
----------------------------------------------------------------------------
15 years to less than 20 years [ ]%
----------------------------------------------------------------------------
20 years to 30 years [ ]%
----------------------------------------------------------------------------
More than 30 years To be negotiated at time of
sale
----------------------------------------------------------------------------
----------------------------------------------------------------------------
Exhibit A
Terms of Notes
--------------
The following terms, if applicable, shall be agreed to by any Agent and
the Company in connection with each sale of Notes:
Principal Amount: $____________
(or principal amount of foreign currency or composite currency)
Interest Rate or Formula:
If Fixed Rate Note,
Interest Rate:
Default Rate:
Interest Payment Dates:
If Floating Rate Note,
Interest Rate Basis(es):
If LIBOR,
___
/__/ LIBOR Reuters
Page:
___
/__/ LIBOR Telerate
Page:
Designated LIBOR Currency:
If CMT Rate,
Designated CMT Telerate Page:
Designated CMT Maturity Index:
Index Maturity:
Spread and/or Spread Multiplier, if any:
Initial Interest Rate, if any:
Initial Interest Reset Date:
Interest Reset Dates:
Interest Payment Dates:
Default Rate:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Fixed Rate Commencement Date, if any:
Fixed Interest Rate, if any:
Calculation Agent:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction, if any:
If Repayable:
Optional Repayment Date(s):
Original Issue Date:
Stated Maturity Date:
Specified Currency:
Exchange Rate Agent:
Authorized Denomination:
Purchase Price: ___%, plus accrued interest, if any, from ___________
Closing Date and Time:
Additional/Other Terms:
Exhibit B
Centerpoint Properties Trust
Medium-Term Notes
Administrative Procedures
Medium-Term Notes Due Nine Months or More from Date of Issuance (the
"Notes") are to be offered on a continuing basis by Centerpoint Properties
Trust (the "Company"). Xxxxxx Brothers Inc., First Chicago Capital Markets,
Inc. and NationsBanc Xxxxxxxxxx Services, LLC, as Agents (each an "Agent" and
collectively the "Agents") have each agreed to use its reasonable best
efforts to solicit offers to purchase the Notes. The Notes are being sold
pursuant to a Distribution Agreement between the Company and the Agents dated
October 23, 1998 (as it may be supplemented or amended from time to time,
the "Distribution Agreement") to which these administrative procedures are
attached as an exhibit. The Notes are to be issued from time to time pursuant
to an indenture, dated as of April 7, 1998, as it may be supplemented or
amended from time to time, by and between the Company and U.S. Bank Trust
National Association, as trustee (the "Trustee"), as supplemented by the
First Supplemental Indenture, dated as of April 7, 1998, and the Second
Supplemental Indenture, dated as of October 23, 1998, by and between the
Company and the Trustee (collectively, the "Indenture"). The Notes will rank
equally with all other unsecured and unsubordinated indebtedness of the
Company and will have been registered with the Securities and Exchange
Commission (the "Commission"). Terms defined in the Prospectus relating to
the Notes (the "Prospectus" which term shall include any Prospectus
supplement relating to the Notes and any Pricing Supplement relating to an
applicable Note) and in the Distribution Agreement shall have the same
meaning when used in this exhibit. Special administrative procedures for
Multi-Currency Notes and for Global Securities relating to Book-Entry Notes
follow these administrative procedures.
Administrative responsibilities, document control and record-keeping
functions to be performed on behalf of the Company will be performed by the
Company's Chief Financial Officer. Administrative procedures for the offering
are explained below.
Price to Public
Each Note will be issued at 100% of principal amount, unless otherwise
determined by the Company and specified in the applicable Pricing Supplement.
Date of Issuance
Each Note will be dated and issued as of the date of its
authentication by the Trustee.
Maturities
Each Note will mature on a Business Day (as defined below) selected by
the purchaser and agreed upon by the Company, such date being at least nine
months from the date of issuance. Each Floating Rate Note will mature on an
Interest Payment Date (as defined below).
"Business Day" shall mean any day which is not a Saturday or Sunday
and which is not a day
on which banking institutions are generally authorized or obligated by law or
executive order to close in The City of New York and Chicago.
Registration
Notes will be issued only in fully registered form as either a
Book-Entry Note or a Certificated Note. Certificated Notes may be presented
for registration of transfer or exchange at the Trustee's New York office.
Denominations
The Notes (other than Notes represented by Global Securities) will be
issued and payable in U.S. dollars in the denomination of $1,000 and any
larger denomination which is an integral multiple of $1,000.
Interest Payments
Each Note bearing interest at a fixed rate (a "Fixed Rate Note") will
bear interest from its issue date at the annual rate stated on the face
thereof, payable, unless otherwise specified in the applicable Pricing
Supplement, on March 15 and September 15 of each year (each an "Interest
Payment Date" with respect to such Fixed Rate Note) and at Stated Maturity or
upon redemption, if applicable.
Special provisions are set forth in the Prospectus and in the form of
Floating Rate Note relating to Notes bearing interest at a rate or rates
determined by reference to an interest rate formula ("Floating Rate Notes")
at a rate determined pursuant to the formula stated on the face thereof,
payable in arrears on such dates as are specified therein (each an "Interest
Payment Date" with respect to such Floating Rate Note).
Unless otherwise specified in the applicable Pricing Supplement,
interest on Fixed Rate Notes will be calculated and paid on the basis of a
360-day year of twelve 30-day months. Unless otherwise specified in the
applicable Pricing Supplement, interest will be payable to the person in
whose name such Note is registered at the close of business on the fifteenth
calendar day (whether or not such date shall be a Business Day) next
preceding an Interest Payment Date with respect to Fixed Rate Notes or
Floating Rate Notes and on March 1 and September 1 next preceding the March 15
and September 15 Interest Payment Dates with respect to Fixed Rate Notes
(the "Regular Record Dates"); PROVIDED, HOWEVER, that interest payable at
Stated Maturity will be payable to the person to whom principal shall be
payable. Any payment of principal and interest on any Note required to be
paid on an Interest Payment Date or at Stated Maturity or upon redemption, if
applicable, which is not a Business Day shall be postponed to the next day
which is a Business Day. The first payment of interest on any Note
originally issued between a Regular Record Date and an Interest Payment Date
will be made on the Interest Payment Date following the next succeeding
Regular Record Date. All interest payments, excluding interest payments made
at Stated Maturity or upon redemption, if applicable, will be made by check
mailed to the person entitled thereto as provided above (which, in the case
of a permanent Global Note representing Book Entry Notes, shall be the
Depository Trust Company or nominee thereof), or, at the option of the
Company, by wire transfer to an account maintained by such person with a bank
located in the United States. Notwithstanding the foregoing, the holder of
$10 million or more in aggregate principal amount of Notes with the same
Interest Payment Date may request payment by wire transfers.
On the fifth Business Day immediately preceding each Interest Payment
Date, the Trustee will furnish the Company with the total amount of the
interest payments to be made on such Interest Payment Date. The Trustee (or
any duly selected paying agent) will provide monthly to the Company's
Treasury Department a list of the principal and interest to be paid on Notes
maturing in the next succeeding month. The Company will provide to the
Trustee (and any such paying agent) not later than the payment date
sufficient moneys to pay in full all principal and interest payments due on
such payment date. The Trustee or any such paying agent will assume
responsibility for withholding taxes on interest paid as required by law.
Acceptance and Rejection of Offers
The Company shall have the sole right to accept offers to purchase
Notes and may reject any such offer in whole or in part. Each Agent shall
promptly communicate to the Company, orally or in writing, each reasonable
offer to purchase Notes from the Company received by it other than those
rejected by such Agent. Each Agent shall have the right, in its discretion
reasonably exercised without advising the Company, to reject any offers in
whole or in part.
Settlement
The receipt of immediately available funds in U.S. Dollars by the
Company in payment for a Note (less the applicable commission) and the
authentication and issuance of such Note shall, with respect to such Note,
constitute "Settlement." All offers accepted by the Company will be settled
from one to five Business Days from the date of acceptance by the Company
pursuant to the timetable for Settlement set forth below unless the Company
and the purchaser agree to Settlement on a later date; PROVIDED, HOWEVER,
that the Company will so notify the Trustee of any such later date on or
before the Business Day immediately prior to the Settlement date.
Settlement Procedures
In the event of a purchase of Notes by an Agent, as principal,
appropriate Settlement details will be set forth in the Purchase Agreement to
be entered into between such Agent and the Company pursuant to the
Distribution Agreement. In the event of the sale of a Multi-Currency Note or
an Indexed Note, additional or different Settlement details may be set forth
in the Amendment to be entered into between the Agents and the Company
pursuant to the Distribution Agreement.
Settlement procedures with regard to each Note sold through each Agent
shall be as follows:
A. Such Agent (the "Presenting Agent") will advise the Company by
telephone, telex or facsimile, of the following Settlement
information:
1. Exact name in which the Note is to be registered ("Registered
Owner").
2. Exact address of the Registered Owner and address for payment of
principal and interest, if any.
3. Taxpayer identification number of the Registered Owner.
4. Principal amount of the Note (and, if multiple Notes are to be
issued, denominations thereof).
5. Settlement date.
6. Stated Maturity.
7. Issue Price and any OID information.
8. Trade Date/Original Issue Date.
9. Interest rate:
(a) Fixed Rate Notes:
(i) interest rate
(ii) overdue rate, if any
(b) Floating Rate Notes:
(i) interest rate basis
(ii) initial interest rate
(iii) spread or spread multiplier, if any
(iv) interest rate reset periods
(v) interest payment dates
(vi) index maturity
(vii) maximum and minimum interest rates, if any
(viii) record dates
(ix) interest determination dates
(x) overdue rate, if any
10. The date on or after which the Notes are redeemable at the option
of the Company, and additional redemption or repurchase
provisions, if any.
11. Wire transfer information.
12. Presenting Agent's Commission (to be paid in the form of a
discount from the proceeds remitted to the Company upon
Settlement).
B. The Company will confirm the above Settlement information to
the Trustee by telephone, telex or facsimile, and the Trustee will assign a
Note number to the transaction. If the Company rejects an offer, the Company
will promptly notify the Presenting Agent and the Trustee by telephone.
C. The Trustee will complete the first page of the preprinted
4-ply Note packet [NOTE: Such a packet need not be prepared if the Company
is utilizing the book-entry system, SEE procedures below], the form of which
was previously approved by the Company, the Agents and the Trustee.
D. The Trustee will deliver the Note (with the attached white
confirmation) and the yellow and blue stubs to the Presenting Agent. The
Presenting Agent will acknowledge receipt of the Note by completing the
yellow stub and returning it to the Trustee.
E. The Presenting Agent will cause to be wire transferred to a
bank account designated by the Company immediately available funds in U.S.
dollars in the amount of the principal amount of the Note, less the
applicable commission or discount, if any.
F. The Presenting Agent will deliver the Note (with the attached
white confirmation) to the purchaser against payment in immediately available
funds in the amount of the principal amount of the Note. The Presenting
Agent will deliver to the purchaser a copy of the most recent Prospectus as
amended or supplemented (including the Pricing Supplement) applicable to the
Note to such purchaser or its agent prior to or together with the earlier of
the delivery to such purchaser or its agent of (i) the confirmation of sale or
(ii) the Note.
G. The Presenting Agent will obtain the acknowledgment of receipt
for the Note and Prospectus by the purchaser through the purchaser's
completion of the blue stub.
H. The Trustee will mail the pink stub to the Company's Chief
Financial Officer.
SETTLEMENT PROCEDURES TIMETABLE
For offers accepted by the Company, Settlement procedures "A" through
"H" set forth above shall be completed on or before the respective times set
forth below:
----------------------------------------------------------------------------
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Settlement Time (New York)
Procedure
----------------------------------------------------------------------------
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A 5 PM on date of order
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B 3 PM on the Business Day prior to Settlement Date
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C-D 12 Noon on the Settlement Date
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E 2:15 PM on the Settlement date
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F-G 3 PM on the Settlement Date
----------------------------------------------------------------------------
H 5 PM on Business Day after the Settlement Date
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Fails
In the event that a purchaser of a Note shall either fail to accept
delivery of or make payment for such Note on the date fixed by the Company
for Settlement, the Presenting Agent will immediately notify the Trustee and
the Company's Chief Financial Officer by telephone, confirmed in writing, of
such failure and return the Note to the Trustee. Upon the Trustee's receipt
of the Note from the Presenting Agent, the Company will promptly return to
the Presenting Agent an amount of immediately available funds in U.S. dollars
equal to any amount previously transferred to the Company in respect of the
Note pursuant to advances made by the Presenting Agent. Such returns will be
made on the Settlement date, if possible, and in any event not later than 12
noon (New York City time) on the Business Day following the Settlement date.
The Company will reimburse the Presenting Agent on an equitable basis for its
loss of the use of the funds during the period when the funds were credited
to the account of the Company. Upon receipt of the Note in respect of which
the default occurred, the Trustee will xxxx the Note "cancelled," make
appropriate entries in its records and deliver the Note to the Company with
an appropriate debit advice. The Presenting Agent will not be entitled to
any commission with respect to any Note which the purchaser does not accept
or make payment for.
Pricing Redemption
Except as otherwise specified in the applicable Pricing Supplement and
on the Notes, the Notes will not be redeemable prior to their Stated
Maturity. If so specified in a Pricing Supplement and on the Note, such Note
will be subject to redemption by the Company, at any time on or after the
date set forth on such supplement and the Note, in whole or from time to time
in part, at the option of the Company, at the redemption price set forth
therein, together with interest accrued thereon on the date of redemption.
Notice of redemption shall be given by first-class mail postage
prepaid, mailed not less than 30 calendar days nor more than 60 calendar days
prior to the date of redemption, to each holder of Notes to be redeemed, in
the manner and in accordance with the Indenture. In the event of redemption
in part of any Note, a new Note for the amount of the unredeemed portion
shall be issued in the name of the Holder upon cancellation of the redeemed
Note.
Maturity
Upon presentation of each Certificated Note at Maturity the Trustee
(or any duly appointed paying Agent) will pay the principal amount thereof,
together with accrued interest through the date of redemption. Such payment
shall be made in immediately available funds in U.S. dollars, provided that
the Note is presented to the Trustee (or any such paying Agent) in time for
the Trustee (or such paying Agent) to make payments in such funds in
accordance with its normal procedures. The Company will provide the Trustee
(and any such paying Agent) with funds available for immediate use for such
purpose. Certificated Notes presented at Maturity will be cancelled by the
Trustee as provided in the Indenture.
Procedures for Establishing the Terms of the Notes
The Company and the Agents will discuss from time to time the rates to
be borne by the Notes that may be sold as a result of the solicitation of
offers by the Agents. Once an Agent has recorded any indication of interest
in Notes upon certain terms, and communicated with the Company, if the
Company accepts an offer to purchase Notes upon such terms, it will prepare a
Pricing Supplement in the form previously approved by the Presenting Agent,
reflecting the terms of such Notes and, after approval from the Presenting
Agent, will arrange to have such Pricing Supplement (together with the
Prospectus, if amended or supplemented) filed with the Commission and will
supply an appropriate number of copies of the Prospectus, as then amended or
supplemented, together with such Pricing Supplement, to the Presenting Agent.
See "Delivery of Prospectus" below. No settlements with respect to Notes upon
such terms may occur prior to such filing and the Presenting Agent will not,
prior to such filing, mail confirmations to customers who have offered to
purchase Notes upon such terms. After such filing, sales, mailing of
confirmations and settlements may occur with respect to Notes upon such
terms, subject to the provisions of "Delivery of Prospectus" below.
If the Company decides to post rates and a decision has been reached
to change interest rates, the Company will promptly notify each Agent. Each
Agent will forthwith suspend solicitation of purchases. At that time, the
Agents will recommend and the Company will establish rates to be so "posted."
Following establishment of posted rates and prior to the filing described in
the following sentence, the Agents may only record indications of interest in
purchasing Notes at the posted rates. Once any Agent has recorded any
indication of interest in Notes at the posted rates and communicated with the
Company, if the Company plans to accept an offer at the posted rate, it will
prepare a Pricing Supplement reflecting such posted rates and, after approval
from the Presenting Agent, will arrange to have such Pricing Supplement
(together with the Prospectus if amended or supplemented) filed with the
Commission and will supply an appropriate number of copies of the Prospectus,
as then amended or supplemented, to the Presenting Agent. See "Delivery of
Prospectus." No settlements at the posted rates may occur prior to such
filing and the Presenting Agent will not, prior to such filing, mail
confirmations to customers who have offered to purchase Notes at the posted
rates. After such filing, sales, mailing of confirmations and settlements
may resume, subject to the provisions of "Delivery of Prospectus" below.
Suspension of Solicitation; Amendment or Supplement
In the event that at the time the Agents, at the direction of the
Company, suspend solicitation of offers to purchase from the Company there
shall be any orders outstanding which have not been settled, the Company will
promptly advise the Agents and the Trustee whether such orders may be settled
and
whether copies of the Prospectus as theretofore amended and/or supplemented
as in effect at the time of the suspension may be delivered in connection
with the settlement of such orders. The Company will have the sole
responsibility for such decision and for any arrangements which may be made
in the event that the Company determines that such orders may not be settled
or that copies of such Prospectus may not be so delivered.
Delivery of Prospectus
A copy of the Prospectus as most recently amended or supplemented on
the date of delivery thereof, together with the applicable Pricing
Supplement, must be delivered to a purchaser prior to or together with the
earlier of the delivery by the Agents of (i) the written confirmation of a
sale sent to a purchaser or his agent and (ii) any Note purchased by such
purchaser. The Company shall ensure that the Presenting Agent receives
copies of the Prospectus and each amendment or supplement thereto (including
the applicable Pricing Supplement) in such quantities and within such time
limits as will enable the Presenting Agent to deliver such confirmation or
Note to a purchaser as contemplated by these procedures and in compliance
with the preceding sentence. Copies of Pricing Supplements should be
delivered (i) if to Xxxxxx Brothers Inc., c/o ADP, Prospectus Services, 000
Xxxxx Xxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxx, (516)
254-7106, telecopier: (000) 000-0000 and by hand to Xxxxxx Brothers Inc., 3
World Financial Center, 9th floor, New York, New York 10285, Attention:
Xxxxxxx Xxxxxxx, telephone: (000) 000-0000, (ii) if to First Chicago Capital
Markets, Inc., 0 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000,
Attention: Corporate Securities Structuring, telephone: (000) 000-0000,
telecopier: (000) 000-0000 and (iii) if to NationsBanc Xxxxxxxxxx Services,
XXX,000 Xxxxx Xxxxx Xxxxxx, XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000,
Attention: Debt Financing Group/Medium-Term Notes, telephone: (000) 000-0000,
telecopier: (000) 000-0000. If, since the date of acceptance of a
purchaser's offer, the Prospectus shall have been supplemented solely to
reflect any sale of Notes on terms different from those agreed to between the
Company and such purchaser or a change in posted rates not applicable to such
purchaser, such purchaser shall not receive the Prospectus as supplemented by
such new supplement, but shall receive the Prospectus as supplemented to
reflect the terms of the Notes being purchased by such purchaser and
otherwise as most recently amended or supplemented on the date of delivery of
the Prospectus. The Trustee will make all such deliveries with respect to
all Notes sold directly by the Company.
Authenticity of Signatures
The Company will cause the Trustee to furnish the Agents from time to
time with the specimen signatures of each of the Trustee's officers,
employees and Agents who have been authorized by the Trustee to authenticate
Notes, but the Agents will have no obligation or liability to the Company or
the Trustee in respect of the authenticity of the signature of any officer,
employee or agent of the Company or the Trustee on any Note.
Advertising Costs
The Company will determine with the Agents the amount and nature of
advertising that may be appropriate in offering the Notes. Advertising
expenses incurred with the consent of the Company will be paid by the
Company.
Special Administrative Procedures
For Multi-Currency Notes
Unless otherwise set forth in an applicable Foreign Currency
Amendment, the following procedures and terms shall apply to Multi-Currency
Notes in addition to, and to the extent inconsistent therewith in replacement
of, the procedures and terms set forth above.
Denominations
The authorized denominations for Multi-Currency Notes will be set
forth in the applicable Pricing Supplement.
Currencies
Unless otherwise specified in the applicable Pricing Supplement,
purchasers of Multi-Currency Notes are required to pay for such
Multi-Currency Notes in the Specified Currency in immediately available
funds. If requested by the purchaser of the Multi-Currency Note on or prior
to the fifth Business Day preceding the date of delivery of the
Multi-Currency Notes (or by such other day as the Presenting Agent shall
determine), the Presenting Agent will arrange the conversion of U.S. dollars
into such Specified Currency to enable the purchaser to pay for the
Multi-Currency Notes. Each such conversion will be made by the Presenting
Agent on such terms and subject to such conditions, limitations and charges
as such Presenting Agent may from time to time establish in accordance with
its regular foreign exchange practices. All costs of exchange will be borne
by the purchasers of the Multi-Currency Notes.
Payment of Principal and Interest
The principal of, premium, if any, and interest on Multi-Currency
Notes will be payable in the Specified Currency. Unless otherwise indicated
in the applicable Pricing Supplement, the agent appointed by the Company (the
"Exchange Rate Agent") will convert all such payments of principal, premium,
if any, and interest to U.S. dollars. However, unless otherwise indicated in
the applicable Pricing Supplement, the holder of a Multi-Currency Note may
elect to receive such payments in the Specified Currency as described below.
Any U.S. dollar amount to be received by a holder of a Multi-Currency
Note will be based on the highest bid quotation in The City of New York
received by the Exchange Rate Agent at approximately 11:00 A.M., New York
City time, on the second Business Day preceding the applicable payment date
from three recognized foreign exchange dealers (one of which may be the
Exchange Rate Agent) for the purchase by the quoting dealer of the Specified
Currency for U.S. dollars for settlement on such payment date in the
aggregate amount of the Specified Currency payable to all holders of Notes
scheduled to receive U.S. dollar payments and at which the applicable dealer
commits to execute a contract. If such bid quotations are not available,
payments will be made in the Specified Currency. All currency exchange costs
will be borne by the holder of the Multi-Currency Note by deductions from
such payments.
A holder of a Multi-Currency Note may, unless otherwise specified in
the applicable Pricing Supplement, elect to receive payment of the principal
of, premium, if any, and interest on such Multi-Currency Notes in the
Specified Currency, by transmitting a written request for such payment by
mail, hand delivered, or by cable, telex or other form of facsimile
transmission to the principal office of the Trustee (acting as the Company's
paying agent in The City of New York) on or prior to the Record Date or at
least sixteen days prior to Maturity, as the case may be, such election to
remain in effect until revoked by written notice to the Trustee received by
the Trustee on or prior to the Record Date or at least sixteen days prior to
Maturity, as the case may be. A holder of a Multi-Currency Note
may elect to receive payment in the Specified Currency for all principal,
premium, if any, and interest payments and need not file a separate election
for each payment.
Interest on Multi-Currency Notes paid in U.S. dollars will be paid in
the manner specified in the applicable Pricing Supplement. Unless otherwise
specified in the applicable Pricing Supplement, interest on Multi-Currency
Notes paid in the Specified Currency will be paid by wire transfer to a bank
account maintained by the holder in the country of the Specified Currency.
The principal of Multi-Currency Notes, together with interest accrued and
unpaid therein, due at Maturity will be paid in immediately available funds
against presentation of such Multi-Currency Notes at the principal office of
the Trustee, provided that principal, premium, if any, and interest payable
at Maturity in a Specified Currency will be paid by wire transfer to such
bank account. Any payment of principal or interest required to be made on an
Interest Payment Date or at Maturity of a Multi-Currency Note which is not a
Business Day need not be made on such day, but may be made on the next
succeeding Business Day with the same force and effect as if made on the
Interest Payment Date or Maturity, as the case may be, and no interest shall
accrue from the period from and after such Interest Payment Date or Maturity.
Payment Currency
If a Specified Currency is not available for payment of principal or
interest with respect to a Multi-Currency Note due to the imposition of
exchange controls or other circumstances beyond the reasonable control of the
Company, the Company will be entitled to satisfy its obligations to holders
of Multi-Currency Notes by making such payment in U.S. dollars on the basis
of the noon buying rate in The City of New York for cable transfers of the
Specified Currency as certified for customs purposes by the Federal Reserve
Bank of New York (the "Market Exchange Rate") on the second day prior to such
payment, or if such Market Exchange Rate is not then available, on the basis
of the most recently available Market Exchange Rate or as otherwise indicated
in the applicable Pricing Supplement. Any payment made under such
circumstances in U.S. dollars where required payment is in a Specified
Currency will not constitute a default under the Indenture.
Outstanding Multi-Currency Notes
For purposes of calculating the principal amount of any Multi-Currency
Note for any purpose under the Indenture, the principal amount of such
Multi-Currency Note at any time Outstanding shall be deemed to be the U.S.
dollar equivalent at the Market Exchange Rate, determined as of the date of
the original issuance of such Multi-Currency Note, of the principal amount of
such Multi-Currency Note.
Details for Settlement of Multi-Currency Notes
In addition to the Settlement information specified in "Settlement
Procedures" above, the Presenting Agent shall communicate to the Company in
the manner set forth in "Settlement Procedures" the following information:
1. Specified Currency
2. Denominations
3. Wire transfer and overseas bank account information (if holder has
elected payment in a Specified Currency).
Whether the sale is through an Agent or to an Agent, as principal,
additional or different Settlement details may be set forth in an amendment
to these administrative procedures to be agreed to by such Agent and the
Company.
Special Administrative Procedures for Book-Entry Notes
Each Note will be represented by either a Global Security delivered to
the Trustee, as agent for the Depository Trust Company ("DTC"), and recorded
in the book-entry system maintained by DTC or a certificate delivered to the
Holder thereof or a Person designated by such Holder. A Holder of a
Book-Entry Note will not be entitled to receive a certificate representing
such Note. In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, the Trustee will
perform the custodial, document control and administrative functions
described below, in accordance with its respective obligations under a Letter
of Representations from the Company and the Trustee to DTC and a Medium-Term
Note Certificate Agreement previously entered into between the Trustee and
DTC, and its obligations as a participant in DTC, including DTC's Same-Day
Funds Settlement System ("SDFS"). Except as otherwise set forth in this
Exhibit B, Book-Entry Notes will be issued in accordance with the
administrative procedures set forth below.
Issuance
On any date of settlement (as defined under "Settlement" below) of one
or more Fixed Rate Book-Entry Notes, the Company will issue a single Global
Security in fully registered form without coupons representing the principal
amount of all of such Notes that have the same original issuance date,
interest rate and Stated Maturity. Similarly, on any settlement date for one
or more Floating Rate Book-Entry Notes, the Company will issue a single
Global Security representing the principal amount of all of such Notes that
have the same interest rate formula, original issuance date, Initial Interest
Rate, Interest Payment Dates, Index Maturity, Spread, Spread Multiplier,
minimum interest rate (if any), maximum interest rate (if any) and Stated
Maturity. Each Global Security will be dated and issued as of the date of
its authentication by the Trustee. Each Global Security will have an
interest accrual date (the "Interest Accrual Date"), which will be (i) with
respect to an original Global Security (or any portion thereof), its original
issuance date and (ii) with respect to any Global Security (or portion
thereof) issued subsequently upon exchange of a Global Security or in lieu of
a destroyed, lost or stolen Global Security, the most recent Interest Payment
Date to which interest has been paid or duly provided for on the predecessor
Global Security or Securities (or if no such payment or provision has been
made, the original issuance date of the predecessor Global Security),
regardless of the date of authentication of such subsequently issued Global
Security. No Global Security will represent (i) both Fixed Rate and Floating
Rate Book-Entry Notes or (ii) any Certificated Note or (iii) any
Multi-Currency or Indexed Note.
Identification Numbers
The Company will arrange, on or prior to commencement of a program for
the offering of Book-Entry Notes, with the CUSIP Service Bureau of Standard &
Poor's Corporation (the "CUSIP Service Bureau") for the reservation of a
series of CUSIP numbers (including tranche numbers), consisting of
approximately 900 CUSIP numbers and relating to Global Securities
representing the Book-Entry Notes. The Trustee has or will obtain from the
CUSIP Service Bureau a written list of such series of reserved CUSIP numbers
and will deliver to the Company and DTC such written list of 900 CUSIP
numbers of such series. The Company will assign CUSIP numbers to Global
Securities as described below under Book Entry Settlement Procedure "B." DTC
will notify the CUSIP Service Bureau periodically of the CUSIP numbers that
the Company has assigned to Global Securities. The Trustee will notify the
Company at any time when fewer than 100 of the reserved CUSIP numbers remain
unassigned to Global Securities, and if it deems necessary, the Company will
reserve additional CUSIP numbers for assignment to Global Securities
representing Book-Entry Notes. Upon obtaining such additional CUSIP numbers
the Trustee shall deliver such additional CUSIP numbers to the Company and
DTC.
Registration
Each Global Security will be registered in the name of Cede & Co., as
nominee for DTC, on the Securities Register maintained under the Indenture
governing such Global Security. The beneficial owner of a Book-Entry Note
(or one or more indirect participants in DTC designated by such owner) will
designate one or more participants in DTC (with respect to such Note, the
"Participants") to act as agent or Agents for such owner in connection with
the book-entry system maintained by DTC, and DTC will record in book-entry
form, in accordance with instructions provided by such Participants, a credit
balance with respect to such Note in the account of such Participants. The
ownership interest of such beneficial owner in such Note will be recorded
through the records of such Participants or through the separate records of
such Participants and one or more indirect participants in DTC.
Transfers
Transfers of a Book-Entry Note will be accomplished by book entries
made by DTC and, in turn, by Participants (and in certain cases, one or more
indirect participants in DTC) acting on behalf of beneficial transferors and
transferees of such Note.
Consolidation and Exchange
The Trustee may deliver to DTC and the CUSIP Service Bureau at any
time a written notice of consolidation specifying (i) the CUSIP numbers of
two or more Outstanding Global Securities that represent (A) Fixed Rate
Book-Entry Notes having the same original issuance date, interest rate and
Stated Maturity and with respect to which interest has been paid to the same
date or (B) Floating Rate Book-Entry Notes having the same interest rate
formula, original issuance date, Initial Interest Rate, Interest Payment
Dates, Index Maturity, Spread or Spread Multiplier, minimum interest rate (if
any), maximum interest rate (if any) and with respect to which interest has
been paid to the same date, (ii) a date, occurring at least thirty days after
such written notice is delivered and at least thirty days before the next
Interest Payment Date for such Book-Entry Notes, on which such Global
Securities shall be exchanged for a single replacement Global Security and
(iii) a new CUSIP number, obtained from the Company, to be assigned to such
replacement Global Security. Upon receipt of such a notice, DTC will send to
its participants (including the Trustee) a written reorganization notice to
the effect that such exchange will occur on such date. Prior to the
specified exchange date, the Trustee will deliver to the CUSIP Service Bureau
a written notice setting forth such exchange date and the new CUSIP number
and stating that, as of such exchange date, the CUSIP numbers of the Global
Securities to be exchanged will no longer be valid. On the specified
exchange date, the Trustee will exchange such Global Securities for a single
Global Security bearing the new CUSIP number and a new Interest Accrual Date,
and the CUSIP numbers of the exchanged Global Securities will, in accordance
with CUSIP Service Bureau procedures, be cancelled and not immediately
reassigned. Notwithstanding the foregoing, if the Global Securities to be
exchanged exceed $200,000,000 in aggregate principal amount, one Global
Security will be authenticated and issued to represent each $200,000,000 of
principal amount of the exchanged Global Securities and an additional Global
Security will be authenticated and issued to represent any remaining
principal amount of such Global Securities (see "Denominations" below).
Maturities
Each Book-Entry Note will mature on a date not less than nine months
after the settlement date for such Note. A Floating Rate Book-Entry Note
will mature only on an Interest Payment Date for
such Note.
Denominations
Book-Entry Notes will be issued in principal amounts of $1,000 or any
amount in excess thereof that is an integral multiple of $1,000. Global
Securities representing one or more Book-Entry Notes will be denominated in
principal amounts not in excess of $200,000,000. If one or more Book-Entry
Notes having an aggregate principal amount in excess of $200,000,000 would,
but for the preceding sentence, be represented by a single Global Security,
then one Global Security will be issued to represent each $200,000,000
principal amount of such Book-Entry Note or Notes and an additional Global
Security will be issued to represent any remaining principal amount of such
Book-Entry Note or Notes. In such a case, each of the Global Securities
representing such Book-Entry Note or Notes shall be assigned the same CUSIP
number.
Interest
GENERAL. Interest on each Book-Entry Note will accrue from the
Interest Accrual Date of the Global Security representing such Note. Each
payment of interest on a Book-Entry Note will include interest accrued
through the day preceding, as the case may be, the Interest Payment Date or
Maturity; provided, however, that if the Interest Reset Dates with respect to
any such Note are daily or weekly, interest payable on any Interest Payment
Date, other than interest payable on any date on which principal for such
Note is payable, will include interest accrued from but excluding the second
preceding Regular Record Date to and including the next preceding Regular
Record Date. Interest payable at the Maturity of a Book-Entry Note will be
payable to the Person to whom the principal of such Note is payable.
Standard & Poor's Corporation will use the information received in the
pending deposit message described under Settlement Procedure "C" below in
order to include the amount of any interest payable and certain other
information regarding the related Global Security in the appropriate weekly
bond report published by Standard & Poor's Corporation.
On the first Business Day of January, April, July and October of each
year, the Trustee will deliver to the Company and DTC a written list of
Regular Record Dates and Interest Payment Dates that will occur with respect
to Floating Rate Book-Entry Notes during the six-month period beginning on
such first Business Day. Promptly after each Interest Determination Date
for Book Entry Notes which are Floating Rate Notes, the Company will
notify the Trustee, and the Trustee in turn will notify Standard & Poor's
Corporation, of the interest rates determined on such Interest Determination
Date.
Payments of Principal and Interest
PAYMENTS OF INTEREST ONLY. Promptly after each Regular Record Date,
the Trustee will deliver to the Company and DTC a written notice specifying
by CUSIP number the amount of interest to be paid on each Global Security on
the following Interest Payment Date (other than an Interest Payment Date
coinciding with Maturity) and the total of such amounts. DTC will confirm
the amount payable on each Global Security on such Interest Payment Date by
reference to the daily bond reports published by Standard & Poor's
Corporation. The Company will pay to the Trustee, as paying agent, the total
amount of interest due on such Interest Payment Date (other than at
Maturity), and the Trustee will pay such amount to DTC at the times and in
the manner set forth below under "Manner of Payment."
PAYMENTS AT MATURITY. On or about the first Business Day of each
month, the Trustee will deliver to the Company, DTC and the Trustee a written
list of principal and interest to be paid on each Global Security maturing in
the following month. The Company, the Trustee and DTC will confirm the
amounts of such principal and interest payments with respect to each such
Global Security on or about the fifth Business Day preceding the Maturity of
such Global Security. The Company will pay to
the Trustee, as the paying agent, the principal amount of such Global
Security, together with interest due at such Maturity. The Trustee will pay
such amount to DTC at the times and in the manner set forth below under
"Manner of Payment."
Promptly after payment to DTC of the principal and interest due at the
Maturity of such Global Security, the Trustee will cancel such Global
Security and deliver it to the Company with an appropriate debit advice. On
the first Business Date of each month, the Trustee will prepare a written
statement indicating the total principal amount of Outstanding Global
Securities for which it serves as trustee as of the immediately preceding
Business Day.
MANNER OF PAYMENT. The total amount of any principal and interest due
on Global Securities on any Interest Payment Date or at Maturity shall be
paid by the Company to the Trustee in funds available for use by the Trustee
as of 9:30 A.M. (New York City time) on such date. The Company will make
such payment on such Global Securities by instructing the Trustee to withdraw
funds from an account maintained by the Company at the Trustee. The Company
will confirm such instructions in writing to the Trustee, with a copy to the
Trustee under the Indenture governing such Global Securities if such Global
Securities are of subordinated or junior subordinated rank. For maturity,
redemption or any other principal payments: prior to 10 A.M. (New York City
time) on such date or as soon as possible thereafter, the Trustee will make
such payments to DTC in same day funds in accordance with DTC's Same Day
Funds Settlement paying Agent Operating Procedures. For interest payments:
the Trustee will make such payments to DTC in accordance with existing
arrangements between DTC and the Trustee. DTC will allocate such payments to
its participants in accordance with its existing operating procedures.
Neither the Company (either as issuer or as paying Agent) nor the Trustee
shall have any direct responsibility or liability for the payment by DTC to
such Participants of the principal of and interest on the Book-Entry Notes.
The amount of any taxes required under applicable law to be withheld
from any interest payment on a Book-Entry Note will be determined and
withheld by the Participant, indirect participant in DTC or other Person
responsible for forwarding payments and materials directly to the beneficial
owner of such Note.
Book Entry Settlement Procedures
Settlement Procedures with regard to each Book-Entry Note sold by the
Company through an Agent, as agent, shall be as follows:
A. The Presenting Agent will advise the Company by telephone, telex
or facsimile, of the following settlement information:
1. Exact name in which Note is to be registered ("Registered Owner").
2. Exact address of the Registered Owner and address for payments of
principal and interest, if any.
3. Taxpayer identification number of the Registered Owner.
4. Principal amount of the Note (and, if multiple Notes are to be
issued, denominations thereof).
5. Settlement date.
6. Stated Maturity.
7. Issue Price and any OID information.
8. Trade date.
9. The DTC Participant account number of such Agent.
10. Interest rate:
(a) Fixed Rate Notes:
i) interest rate
ii) overdue rate, if any
(b) Floating Rate Notes:
i) interest rate basis
ii) initial interest rate
iii) spread or spread multiplier, if any
iv) interest rate reset periods
v) interest payment dates
vi) index maturity
vii) maximum and minimum interest rates, if any
viii) record dates
ix) interest determination dates
x) overdue rate, if any
11. The date on or after which the Notes are redeemable at the option
of the Company, and additional redemption or repurchase
provisions, if any.
12. Wire transfer information.
13. Presenting Agent's commission (to be paid in the form of a
discount from the proceeds remitted to the Company upon
settlement).
B. The Company will assign a CUSIP number to the Global Security
representing such Note and then advise the Trustee by telephone
(confirmed in writing at any time on the same date) or electronic
transmission of the information set forth in Book Entry Settlement
Procedure "A" above, such CUSIP number and the name of such Agent. If
the Company rejects an offer, the Company will promptly notify the Agent
and the Trustee.
C. The Trustee will enter a pending deposit message through DTC's
Participant Terminal System, providing the following settlement
information to DTC, the Presenting Agent, Standard & Poor's Corporation
and, upon request, the Trustee under the Indenture pursuant to which such
Note is to be issued:
1. The information set forth in Book Entry Settlement Procedure "A."
2. Identification as a Fixed Rate Book-Entry Note or a Floating Rate
Book-Entry Note.
3. Initial Interest Payment Date for such Note, number of days by
which such date succeeds the related "DTC Record Date" (which term
means the Regular Record Date except in the case of floating rate
notes which reset daily or weekly in which case it means the date
5 calendar days immediately preceding the Interest Payment Date)
and
amount of interest payable on such Interest Payment Date.
4. Frequency of interest payments (monthly, semiannually, quarterly,
etc.).
5. CUSIP number of the Global Security representing such Note.
6. Whether such Global Security will represent any other Book-Entry
Note (to the extent known at such time).
D. The Trustee will complete and authenticate the note certificate
evidencing the Global Security representing such Book-Entry Note.
E. DTC will credit such Note to the Trustee's participant account at
DTC.
F. The Trustee will enter an SDFS deliver order through DTC's
Participant Terminal System instructing DTC to (i) debit such Note to the
Trustee's participant account and credit such Note to the Presenting
Agent's participant account and (ii) debit the Presenting Agent's
settlement account and credit the Trustee's settlement account for an
amount equal to the price of such Note less the Presenting Agent's
commission.
G. The Presenting Agent will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC (i) to debit such Note
to the Presenting Agent's participant account and credit such Note to the
participant accounts of the Participants with respect to such Note and
(ii) to debit the settlement accounts of such Participants and credit the
settlement account of the Presenting Agent for an amount equal to the
price of such Note.
H. Transfers of funds in accordance with SDFS deliver orders
described in Settlement Procedures "F" and "G" will be settled in
accordance with SDFS operating procedures in effect on the settlement
date.
I. The Trustee will credit to an account of the Company maintained at
the Trustee funds available for immediate use in the amount transferred
to the Trustee in accordance with Settlement Procedure "F."
J. The Presenting Agent will deliver to the purchaser a copy of the
most recent Prospectus applicable to the Note with or prior to any
written offer of Notes and the confirmation and payment by the purchaser
of the Note.
The Presenting Agent will confirm the purchase of such Note to the
purchaser either by transmitting to the Participants with respect to such
Note a confirmation order or orders through DTC's institutional delivery
system or by mailing a written confirmation to such purchaser.
Settlement Procedures Timetable
For orders of Book-Entry Notes solicited by an Agent, as agent, and
accepted by the Company for settlement, Settlement Procedures "A" through "J"
set forth above shall be completed as soon as
possible but not later than the respective times (New York City time) set
forth below:
---------------------------------------------------------------
-----------------------------------------------------------------
Settlement Time
Procedures
-----------------------------------------------------------------
-----------------------------------------------------------------
A-B 11:00 A.M. on the Sale date
-----------------------------------------------------------------
C 2:00 P.M. on the Sale date
-----------------------------------------------------------------
D 3:00 P.M. on date before Settlement date
-----------------------------------------------------------------
E 10:00 A.M. on Settlement date
-----------------------------------------------------------------
F-G 2:00 P.M. on Settlement date
-----------------------------------------------------------------
H 4:45 P.M. on Settlement date
-----------------------------------------------------------------
I-J 5:00 P.M. on Settlement date
-----------------------------------------------------------------
-----------------------------------------------------------------
If a sale is to be settled more than one Business Day after the sale
date, Settlement Procedures "X," "X" and "C" shall be completed as soon as
practicable but no later than 11:00 A.M. and 2:00 P.M., as the case may be,
on the first Business Day after the sale date. If the initial interest rate
for a Floating Rate Book-Entry Note has not been determined at the time that
Settlement Procedure "A" is completed, Settlement Procedures "B" and "C"
shall be completed as soon as such rate has been determined but no later than
11:00 A.M. and 12:00 Noon, respectively, on the second Business Day before
the settlement date. Settlement Procedure "I" is subject to extension in
accordance with any extension of Fedwire closing deadlines and in the other
events specified in the SDFS operating procedures in effect on the settlement
date.
If settlement of a Book-Entry Note is rescheduled or canceled, the
Trustee will deliver to DTC, through DTC's Participant Terminal System, a
cancellation message to such effect by no later than 2:00 P.M. on the
Business Day immediately preceding the scheduled settlement date.
Failure to Settle
If the Trustee fails to enter an SDFS deliver order with respect to a
Book-Entry Note pursuant to Settlement Procedure "F," the Trustee may deliver
to DTC, through DTC's Participant Terminal System, as soon as practicable a
withdrawal message instructing DTC to debit such Note to the Trustee's
participant account. DTC will process the withdrawal message, provided that
the Trustee's participant account contains a principal amount of the Global
Security representing such Note that is at least equal to the principal
amount to be debited. If a withdrawal message is processed with respect to
all the Book-Entry Notes represented by a Global Security, the Trustee will
xxxx such Global Security "canceled," make appropriate entries in the
Trustee's records and send such canceled Global Security to the Company. The
CUSIP number assigned to such Global Security shall, in accordance with CUSIP
Service Bureau procedures, be canceled and not immediately reassigned. If a
withdrawal message is processed with respect to one or more, but not all, of
the Book-Entry Notes represented by a Global Security, the Trustee will
exchange such Global Security for two Global Securities, one of which shall
represent such Book-Entry Note or Notes and shall be canceled immediately
after issuance and the other of which shall represent the other Book-Entry
Notes previously represented by the surrendered Global Security and shall
bear the CUSIP number of the surrendered Global Security.
If the purchase price for any Book-Entry Note is not timely paid to
the Participants with respect to such Note by the beneficial purchaser
thereof (or a Person, including an indirect participant in DTC, acting on
behalf of such purchaser), such Participants and, in turn, the Agent for such
Note may enter SDFS deliver orders through DTC's Participant Terminal System
reversing the orders entered pursuant to Book Entry Settlement Procedures "F"
and "G," respectively. Thereafter, the Trustee will deliver the withdrawal
message and take the related actions described in the preceding paragraph.
Notwithstanding the foregoing, upon any failure to settle with respect
to a Book-Entry Note, DTC may take any actions in accordance with its SDFS
operating procedures then in effect. In the event of a failure to settle
with respect to one or more, but not all, of the Book-Entry Notes to have
been represented by a Global Security, the Trustee will provide, in
accordance with Book Entry Settlement Procedure "D," for the authentication
and issuance of a Global Security representing the other Book-Entry Notes to
have been represented by such Global Security and will make appropriate
entries in its records.
Exhibit C
Centerpoint Properties Trust
Medium Term Notes
Purchase Agreement
centerpoint properties trust
Attention: Chief Financial Officer
The undersigned agrees to purchase the following principal amount of
the Medium Term Notes (the "Notes") described in the Distribution Agreement
dated October 23, 1998 (as it may be supplemented or amended from time to
time, the "Distribution Agreement"):
Principal Amount: $ ___________
Specified Currency:
Denominated and Indexed Currencies:
Interest Rate: ____%
Discount: ____% of Principal Amount
Aggregate Price to be paid to Company (in
immediately available funds):
$ __________
Settlement Date:
Other Terms:
[In the case of notes issued in a foreign currency or currency unit,
unless otherwise specified below, settlement and payments of principal and
interest will be in U.S. dollars based on the highest bid quotation in The City
of New York received by the Exchange Rate Agent at approximately 11:00 A.M., New
York City time, on the second Business Day preceding the applicable payment date
from three recognized foreign exchange dealers (one of which may be the Exchange
Rate Agent) for the purchase by the quoting dealer of the Specified Currency for
U.S. dollars for settlement on such payment date in the aggregate amount of the
Specified Currency payable to all holders of Notes denominated in such Specified
Currency electing to receive U.S. dollar payments and at which the applicable
dealer commits to execute a contract. If such bid quotations are not available,
payments will be made in the Specified Currency.]
Our obligation to purchase Notes hereunder is subject to the continued
accuracy of your representations and warranties contained in the Distribution
Agreement and to your performance and observance of all applicable covenants
and agreements contained therein, including, without limitation, your
obligations pursuant to Section 7 thereof. Our obligation hereunder is
subject to the further condition that we shall receive (a) the opinions
required to be delivered pursuant to Section 5(e) of the Distribution
Agreement, (b) the certificate required to be delivered pursuant to Section
5(f) of the
Distribution Agreement and (c) the letter referred to in Section 5(g) of the
Distribution Agreement, in each case dated as of the above Settlement Date.
Terms used but not otherwise defined herein have the meanings assigned to
them in the Distribution Agreement.
In further consideration of our agreement hereunder, you agree that
between the date hereof and the above Settlement Date, you will not offer or
sell, or enter into any agreement to sell, any debt securities of the
Company, other than borrowings under the Company's revolving credit
agreements and lines of credit, as may be amended, supplemented or replaced,
the private placement of Company securities and issuances of the Company's
commercial paper, without our prior express written consent.
We may terminate this Agreement, immediately upon notice to you, at
any time prior to the Settlement Date, if prior thereto there shall have
occurred: (i) any change, or any development involving a prospective change,
in or affecting primarily the business, properties, condition (financial or
other), results of operations or prospects of the Company or the Company and
the Subsidiaries taken as a whole which materially impairs the investment
quality of the Notes; (ii) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange, the American Stock
Exchange or the over-the-counter market or the establishment of minimum
prices on such exchanges or such market by the Commission; (iii) a general
moratorium on commercial banking activities declared by Federal, Maryland or
New York State authorities; (iv) any downgrading in the rating accorded the
Company's debt securities by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) of the Rules and
Regulations), or any public announcement that any such organization has under
surveillance or review its rating of any debt securities of the Company
(other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such rating); (v)
any outbreak or escalation of major hostilities in which the United States is
involved, any declaration of war by Congress or any other substantial
national calamity or emergency if in the judgement of the Agent the effect of
any such event makes it impractical to proceed with completion of the sale of
and payment for the Notes; or (vi) any material adverse change in the
existing financial, political or economic conditions in the United States, or
you are unable to provide any of the opinions, certificates or letters
referred to in the second preceding paragraph. In the event of such
termination, no party shall have any liability to the other party hereto,
except as provided in Sections 4, 7 and 13 of the Distribution Agreement.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
[name of agent]
By:
--------------------------------
Authorized Signatory
Confirmed and Accepted: , 19
--
centerpoint properties trust
By:
----------------------------------
Authorized Signatory
Exhibit D
[Foreign Currency] [Indexed Note]
Amendment No. ___
To Distribution Agreement Dated October 23, 1998, As Amended
[Insert Title of Foreign Currency or, in the case of
Indexed Notes, the Denominated and Indexed
Currencies]
The undersigned hereby agree that for the purposes of the issue and sale
of Notes denominated in [title of currency or currency unit] (the "Applicable
Foreign Currency") [and indexed to [title of currency or currency unit] (the
"Indexed Currency")] pursuant to the Distribution Agreement, dated October 23,
1998, as it may be amended (the "Distribution Agreement"), the following
additions and modifications shall be made to the Distribution Agreement.
The additions and modifications adopted hereby shall be of the same effect for
the sale under the Distribution Agreement of all Notes denominated in the
Applicable Foreign Currency [and indexed to the Indexed Currency], whether
offered on an agency or principal basis, but shall be of no effect with respect
to Notes denominated in any currency or currency unit other than the Applicable
Foreign Currency.
Except as otherwise expressly provided herein, all terms used herein
which are defined in the Distribution Agreement shall have the same meanings
as in the Distribution Agreement.
[Insert appropriate additions and modifications to the Distribution
Agreement, for example, to opinions of counsel, conditions to obligations and
settlement procedures, etc.]
Very truly yours,
Centerpoint properties trust
By:
----------------------------------
Authorized Signatory
Confirmed and Accepted: , 19___
[names of agents]
By:
----------------------------------
Authorized Signatory
