UNDERWRITING AGREEMENT
1,000,000 Shares
CenterPoint Properties Trust
7.50% Series B Convertible Cumulative Redeemable
Preferred Shares of Beneficial Interest,
par value $.001 per share
June 17, 1999
Xxxxxx X. Xxxxx & Co., L.P.
00000 Xxxxxxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
CenterPoint Properties Trust, a Maryland real estate investment trust
(the "COMPANY"), proposes to sell 1,000,000 shares (the "SHARES") of the
Company's 7.50% Series B Convertible Cumulative Redeemable Preferred Shares of
Beneficial Interest, par value $.001 per share (the "SERIES B PREFERRED
SHARES"). This is to confirm the agreement concerning the purchase of the
Shares from the Company by Xxxxxx X. Xxxxx & Co., L.P. (the "UNDERWRITER").
SECTION 1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE
COMPANY. The Company represents, warrants and agrees that:
(a) A registration statement (File No. 333-49359) on Form S-3
with respect to the securities registered thereunder (the "SHELF
SECURITIES") to be issued from time to time (i) has been prepared by the
Company in conformity with the requirements of the Securities Act of
1933, as amended (the "SECURITIES ACT") and the rules and regulations
(the "RULES AND REGULATIONS") of the Securities and Exchange Commission
(the "COMMISSION") promulgated thereunder, (ii) has been filed with the
Commission under the Securities Act and (iii) has become effective under
the Securities Act. Copies of such registration statement, and any
amendments thereto, have been delivered by the Company to you. As used
in this Agreement, "EFFECTIVE TIME" means the later of (i) the dates and
the times as of which such registration statement, or the most recent
post-effective amendment thereto, if any, were declared effective by the
Commission and (ii) the date any Annual Report on Form 10-K is filed by
the Company with the Commission; "EFFECTIVE DATE" means the dates of the
Effective
Time. The registration statement as amended to the date of this
Agreement is hereinafter referred to as the "REGISTRATION STATEMENT"
and the related prospectus covering the Shelf Securities in the form
first used to confirm sales of the Shares is hereinafter referred to
as the "BASIC PROSPECTUS." The Basic Prospectus as supplemented by the
prospectus supplement specifically relating to the Series B Preferred
Shares in the form first filed pursuant to Rule 424 of the Rules and
Regulations ("RULE 424") is hereinafter referred to as the
"PROSPECTUS." Any reference in this Agreement to the Registration
Statement, the Basic Prospectus, any preliminary form of Prospectus (a
"PRELIMINARY PROSPECTUS") or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Securities Act which were
filed under the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission promulgated thereunder
(collectively, the "EXCHANGE ACT") on or before the date of this
Agreement or the date of the Basic Prospectus, any preliminary
prospectus or the Prospectus, as the case may be; and any reference to
"amend," "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any preliminary prospectus or the
Prospectus shall be deemed to refer to and include any documents filed
under the Exchange Act after the date of this Agreement, or the date
of the Basic Prospectus, any preliminary prospectus or the Prospectus,
as the case may be, which are deemed to be incorporated by reference
therein. The Commission has not issued any order preventing or
suspending the use of any preliminary prospectus.
(b) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to
the requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder,
and none of such documents contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission, as the case
may be, will conform in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary or make the statements therein not
misleading.
(c) The Registration Statement conforms, and the Prospectus
and any further amendments or supplements to the Registration Statement
or the Prospectus will, when they become effective or are filed with the
Commission, as the case may be, conform in all respects to the
requirements of the Securities Act and the Rules and Regulations and do
not and will not, as of the applicable
effective date (as to the Registration Statement and any amendment
thereto) and as of its date or the applicable filing date (as to the
Prospectus and any amendment or supplement thereto) contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; PROVIDED that no representation or warranty is made as to
information contained in or omitted from the Registration Statement or
the Prospectus in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the
Underwriter specifically for inclusion therein.
(d) The Company and each of its subsidiaries have been duly
incorporated and are validly existing as corporations in good standing
under the laws of their respective jurisdictions of incorporation, are
duly qualified to do business and are in good standing in each
jurisdiction in which the laws of such jurisdiction require such
qualification, except in any such case where the failure to so qualify
or be in good standing would not have a material adverse effect upon the
Company and its subsidiaries taken as a whole, 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, except for CP
Financing Trust, a Maryland real estate investment trust ("CPFT"), none
of the subsidiaries of the Company is a "significant subsidiary," as
such term is defined in Rule 405 of the Rules and Regulations.
(e) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are fully paid
and non-assessable, are not subject to preemptive or other similar
rights, and conform to the description thereof contained in the
Prospectus; and all of the issued shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable and except as set forth in
the Prospectus are owned directly or indirectly by the Company as
described in the Prospectus, free and clear of all liens, encumbrances,
equities or claims.
(f) The unissued Shares to be issued and sold by the Company
to the Underwriter hereunder and the articles supplementary creating the
Series B Preferred Shares (the "ARTICLES SUPPLEMENTARY") have been duly
and validly authorized and, when the Shares are issued and delivered
against payment therefor as provided herein, the Shares will be duly and
validly issued, fully paid and non-assessable and the holders thereof
will be entitled to the benefit of the terms contained in the Articles
Supplementary; and the Shares and the Articles Supplementary conform to
the descriptions thereof contained in the Prospectus.
(g) The common shares issuable upon conversion or redemption
of any of the Shares will have been duly and validly authorized and
reserved for issuance upon such conversion or redemption by all
necessary corporate action
and such shares, when issued upon such conversion or redemption, will
be duly and validly issued and will be fully paid and non-assessable,
and the issuance of such shares upon such conversion or redemption
will not be subject to preemptive or other similar rights; the shares
of common shares issuable upon conversion or redemption of any of the
Shares conform in all material respects to the descriptions thereof in
the Prospectus.
(h) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes the valid and binding agreement
of the Company, enforceable against the Company in accordance with its
terms; the execution, delivery and performance of this Agreement by the
Company and the consummation of the transactions contemplated hereby
have been duly authorized by all necessary corporate action and do not
and will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
of the properties or assets of the Company or any of its subsidiaries
pursuant to any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor do 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 Shares under the Securities Act and
such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and applicable
state securities laws in connection with the purchase and distribution
of the Shares by the Underwriter, no consent, approval, authorization or
order of, or filing or registration with, any such court or governmental
agency or body was or is required for the execution, delivery and
performance of this Agreement by the Company and the consummation of the
transactions contemplated hereby.
(i) Except as disclosed in the Registration Statement, there
are no contracts, agreements or understandings between the Company and
any person granting such person the right to require the Company or any
subsidiary of the Company to file a registration statement under the
Securities Act with respect to any securities of the Company or any
subsidiary of the Company owned or to be owned by such person or to
require the Company to include such securities in the securities
registered pursuant to the Registration Statement or in any securities
being registered pursuant to any other registration statement filed by
the Company under the Securities Act.
(j) Neither the Company nor any of its subsidiaries has
sustained, since the date of the latest audited financial statements
included or incorporated
by reference in the Prospectus, any material loss or interference with
its business from fire, explosion, flood, earthquake or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus; and, since such
date, there has not been any change in the capital stock of the
Company or the long-term debt of the Company and its subsidiaries
taken as a whole, except as incurred in the ordinary course of
business, or any material adverse change, or any development involving
a prospective material adverse change, in or affecting the general
affairs, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Prospectus.
(k) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or
included or incorporated by reference in the Prospectus present fairly
the financial condition and results of operations and cash flows of the
entities purported to be shown thereby, at the dates and for the periods
indicated, and have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the
periods involved; and the financial schedules and other financial
information included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the information required to
be stated therein.
(l) PricewaterhouseCoopers, who have certified certain
financial statements of the Company and whose report is incorporated by
reference in the Prospectus, are independent public accountants as
required by the Securities Act and the Rules and Regulations.
(m) (i) the Company and each of its subsidiaries have good
and marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them, in each case
free and clear of all liens, encumbrances and defects except such as are
described in the Prospectus or such as do not materially affect the
value of such property and do not materially interfere with the use made
and proposed to be made of such property by the Company and its
subsidiaries; (ii) all real property and buildings held under lease by
the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases, with such exceptions as are not
material and do not interfere with the use made and proposed to be made
of such property and buildings by the Company and its subsidiaries;
(iii) all liens, charges, encumbrances, claims, or restrictions on or
affecting the properties and assets of any of the Company or its
subsidiaries which are required to be disclosed in the Prospectus are
disclosed therein; (iv) neither the Company nor any of its subsidiaries
is in default under any of the leases pursuant to which any of the
Company or its subsidiaries leases its properties and neither the
Company nor any of its subsidiaries knows of any event which, but for
the passage of time or the giving of notice, or both, would constitute a
default under any of such leases,
except for any such defaults 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; (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 affect the size
of, use of, improvements on, construction on or access to the
properties of any of the Company or its subsidiaries, except as may be
described in the Prospectus or any such matter 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.
(n) The Company and each of its subsidiaries carry, or are
covered by, insurance in such amounts and covering such risks as is
adequate for the conduct of their respective businesses and the value of
their respective properties and as is customary for companies engaged in
similar businesses in similar industries.
(o) The Company and each of its subsidiaries own or possess
adequate rights to use all material 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.
(p) There are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which any
property or assets of the Company or any of its subsidiaries is the
subject which, if determined adversely to the Company or any of its
subsidiaries, might have a material adverse effect on the consolidated
financial position, stockholders' equity, results of operations,
business or prospects of the Company and its subsidiaries; and to the
best of the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(q) There are no contracts or other documents which are
required to
be described in the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act or by the Rules and
Regulations which have not been described in the Prospectus or filed
as exhibits to the Registration Statement or incorporated therein by
reference as permitted by the Rules and Regulations.
(r) No relationship, direct or indirect, exists between or
among the Company on the one hand, and the directors, officers or
stockholders of the Company on the other hand, which is required to be
described in the Prospectus which is not so described.
(s) No labor disturbance by the employees of the Company
exists or, to the knowledge of the Company, is imminent which might be
expected to have a material adverse effect on the consolidated financial
position, stockholders' equity, results of operations, business or
prospects of the Company and its subsidiaries.
(t) The Company and each ERISA Affiliate (i.e. any trade or
business that is treated as a single employer with the Company under
Section 414 under the Internal Revenue Code of 1986, as amended,
including the regulations and published interpretations thereunder (the
"CODE")) have operated and administered each "employee benefit plan" (as
defined in ERISA) 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 or any ERISA Affiliate would
have any liability; neither the Company nor any ERISA Affiliate has
incurred nor expects 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 Code; and each "pension plan" for which
the Company or any ERISA Affiliate would have any liability that is
intended to be qualified under Section 401(a) of the Code is so
qualified in all material respects and nothing has occurred, whether by
action or by failure to act, which would cause the loss of such
qualification.
(u) The Company has filed all federal, state and local income
and franchise tax returns required to be filed through the date hereof
and has paid all taxes due thereon, and no tax deficiency has been
determined adversely to the Company or any of its subsidiaries, which
has had (nor does the Company have any knowledge of any tax deficiency
which, if determined adversely to the Company or any of its
subsidiaries, might have) a material adverse effect on the consolidated
financial condition, stockholders' equity, results of operations,
business or prospects of the Company and its subsidiaries.
(v) Since the date as of which information is given in the
Prospectus through the date hereof, and except as may otherwise be
disclosed or contemplated in the Prospectus, the Company has not (i)
issued or granted any
securities, (ii) incurred any material liability or obligation, direct
or contingent, other than liabilities and obligations which were
incurred in the ordinary course of business, (iii) entered into any
material transaction not in the ordinary course of business or (iv)
declared or paid any dividend on its capital stock.
(w) The Company (i) makes and keeps accurate books and
records and (ii) maintains internal accounting controls which provide
reasonable assurance that (A) transactions are executed in accordance
with management's authorization, (B) transactions are recorded as
necessary to permit preparation of its financial statements and to
maintain accountability for its assets, (C) access to its assets is
permitted only in accordance with management's authorization and (D) the
reported accountability for its assets is compared with existing assets
at reasonable intervals.
(x) Neither the Company nor any of its subsidiaries (i) is in
violation of its declaration of trust or charter, as the case may be, or
by-laws, (ii) is in default in any material respect, and no event has
occurred which, with notice or lapse of time or both, would constitute
such a default, in the due performance or observance of any term,
covenant or condition contained in any material indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which
it is a party or by which it is bound or to which any of its properties
or assets is subject or (iii) is in violation in any material respect of
any law, ordinance, governmental rule, regulation or court decree to
which it or its property or assets may be subject or has failed to
obtain any material license, permit, certificate, franchise or other
governmental authorization or permit necessary to the ownership of its
property or to the conduct of its business.
(y) Neither the Company nor any of its subsidiaries, nor any
director, officer, agent, employee or other person associated with or
acting on behalf of the Company or any of its subsidiaries, has used any
corporate funds for any unlawful contribution, gift, entertainment or
other unlawful expense relating to political activity; made any direct
or indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; violated or is in violation
of any provision of the Foreign Corrupt Practices Act of 1977; or made
any bribe, rebate, payoff, influence payment, kickback or other unlawful
payment.
(z) There has been no storage, disposal, generation,
manufacture, refinement, transportation, handling or treatment of any
material by the Company or any of its subsidiaries or, to the Company's
knowledge, any of their predecessors in interest at, upon or from any of
the properties now or previously owned or leased by the Company or its
subsidiaries or any of their predecessors in interest in violation of
any applicable law, ordinance, rule, regulation, order, judgment, decree
or permit or which would result in remedial action or the modification
or cessation of any activity of the Company or any of its subsidiaries
under any applicable law, common law, ordinance, rule, regulation,
order,
judgment, decree or permit, except for any such 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,
injection, escape, dumping, migration or release of any kind onto such
property or into the environment surrounding such property except for
any such spill, discharge, leak, emission, injection, escape, dumping,
migration or release which would not have, singly or in the aggregate
with all such spills, discharges, leaks, emissions, injections,
escapes, dumpings, migrations 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.
(aa) Neither the Company nor any subsidiary is an "investment
company" within the meaning of such term under the Investment Company
Act of 1940 and the rules and regulations of the Commission promulgated
thereunder.
(bb) The Company is organized in conformity with the
requirements for qualification as a real estate investment trust under
the Code, and its present and contemplated method of operation does and
will enable it to meet the requirements for taxation as a real estate
investment trust ("REIT") under the Code for the year ended December 31,
1994 and subsequent taxable years.
(cc) Each of the Company and its subsidiaries has title
insurance on all properties and assets described in the Prospectus as
owned by such party in an amount at least equal to the greater of (a)
the cost of acquisition of such property or assets and (b) the cost of
construction of the improvements located on such properties.
SECTION 2. PURCHASE OF THE SHARES BY THE UNDERWRITER. On the basis
of the representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell to the Underwriter and
the Underwriter agrees to purchase at a price of $48.00 per share 1,000,000
Shares.
The Company shall not be obligated to deliver any of the Shares to be
delivered on the Delivery Date (as hereinafter defined) except upon payment for
all the Shares to be purchased on the Delivery Date as provided herein.
SECTION 3. OFFERING OF SHARES BY THE UNDERWRITER. Upon
authorization by the Underwriter of the release of the Shares, the Underwriter
proposes to offer the Shares for sale upon the terms and conditions set forth in
the Prospectus.
SECTION 4. DELIVERY OF AND PAYMENT FOR THE SHARES. Delivery of and
payment for the Shares shall be made at such place as shall be determined by
agreement
between the Underwriter and the Company at 10:00 A.M., New York City time, on
the fourth full business day following the date of this Agreement or at such
other date as shall be determined by agreement between the Underwriter and
the Company. This date and time are sometimes referred to as the "DELIVERY
DATE." On the Delivery Date, the Company shall deliver or cause to be
delivered certificates representing the Shares to the Underwriter against
payment to or upon the order of the Company of the purchase price by wire
transfer in federal or same day funds. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement is a
further condition of the obligation of the Underwriter hereunder. Upon
delivery, the Shares shall be registered in such names and in such
denominations as the Underwriter shall request in writing not less than two
full business days prior to the Delivery Date. For the purpose of expediting
the checking and packaging of the certificates for the Shares, the Company
shall make the certificates representing the Shares available for inspection
by the Underwriter in New York, New York, not later than 2:00 P.M., New York
City time, on the business day prior to the Delivery Date.
SECTION 5. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees:
(a) To prepare the Prospectus in a form approved by the
Underwriter and to file such Prospectus pursuant to Rule 424(b) under
the Securities Act not later than the Commission's close of business on
the second business day following the execution and delivery of this
Agreement; to make no further amendment or any supplement to the
Registration Statement or to the Prospectus except as permitted herein;
to advise the Underwriter, promptly after it receives notice thereof, of
the time when any amendment to the Registration Statement has been filed
or becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed and to furnish the Underwriter with copies
thereof; to advise the Underwriter, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any preliminary prospectus or
the Prospectus, of the suspension of the qualification of the Shares for
offering or sale in any jurisdiction, of the initiation or threatening
of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration
Statement or the Prospectus or for additional information; and, in the
event of the issuance of any stop order or of any order preventing or
suspending the use of any preliminary prospectus or the Prospectus or
suspending any such qualification, to use promptly its best efforts to
obtain its withdrawal;
(b) To furnish promptly to the Underwriter upon its request
and to counsel for the Underwriter a signed copy of the Registration
Statement as originally filed with the Commission, and each amendment
thereto filed with the Commission, including all consents and exhibits
filed therewith;
(c) To deliver promptly to the Underwriter such number of the
following documents as the Underwriter shall request: (i) conformed
copies of the
Registration Statement as originally filed with the Commission and
each amendment thereto (in each case excluding exhibits other than
this Agreement and the computation of per share earnings) and (ii)
each preliminary prospectus, the Prospectus and any amended or
supplemented Prospectus; and, if the delivery of a prospectus is
required at any time in connection with the offering or sale of the
Shares and if at such time any event shall have occurred as a result
of which the Prospectus as then amended or supplemented would include
an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be
necessary in the opinion of counsel to the Underwriter during such
same period to amend or supplement the Prospectus in order to comply
with the Securities Act, to notify the Underwriter and, upon its
request, to prepare and furnish without charge to the Underwriter and
to any dealer in securities as many copies as the Underwriter may from
time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or
omission or effect such compliance;
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the Underwriter,
be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission (i) any amendment to
the Registration Statement or supplement to the Prospectus or (ii) any
Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish
a copy thereof to the Underwriter and counsel for the Underwriter and
obtain the consent of the Underwriter to the filing;
(f) As soon as practicable after the Effective Date, but in
any event not later than 45 days after the end of its fiscal quarter in
which the first anniversary date of the Effective Date occurs, to make
generally available to the Company's security holders and to deliver to
the Underwriter an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a) of
the Securities Act and the Rules and Regulations (including, at the
option of the Company, Rule 158);
(g) For a period of five years following the Delivery Date,
to furnish to the Underwriter copies of all materials furnished by the
Company to its shareholders and all public reports and all reports and
financial statements furnished by the Company to the principal national
securities exchange upon which the Shares may be listed pursuant to
requirements of or agreements with such exchange or to the Commission
pursuant to the Exchange Act or any rule or regulation of the Commission
thereunder;
(h) Promptly from time to time, to take such action as the
Underwriter may reasonably request to qualify the Shares for offering
and sale under the securities laws of such jurisdictions as the
Underwriter may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of the Shares;
except that in no event shall the Company be obligated in connection
therewith to qualify as a foreign corporation, or to execute a general
consent to service of process;
(i) To apply the net proceeds from the sale of the Shares
being sold by the Company as set forth in the Prospectus;
(j) To take such steps as shall be necessary to ensure that
neither the Company nor any subsidiary shall become an "investment
company" within the meaning of such term under the Investment Company
Act of 1940 and the rules and regulations of the Commission thereunder;
(k) To not, directly or indirectly, take any action designed
to or which will constitute or which might reasonably be expected to
cause or result in the manipulation or stabilization of the price of the
Shares;
(l) To file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Shares;
(m) To use its reasonable best efforts to meet the
requirements to qualify as a "real estate investment trust" under the
Code for the taxable year in which sales of the Shares are to occur; and
(n) To use its reasonable best efforts to file a registration
statement pursuant to Section 12(b) of the Exchange Act to register the
Shares thereunder, to list such Shares on the New York Stock Exchange
and to list the common shares issuable upon conversion or redemption of
the Shares on the New York Stock Exchange or such other national
securities exchange on which the Company's common shares are then
listed.
SECTION 6. EXPENSES. The Company agrees to pay (a) the costs
incident to the authorization, issuance, sale and delivery of the Shares and any
taxes payable in that connection; (b) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement and
any amendments and exhibits thereto; (c) the costs of distributing the
Registration Statement as originally filed and each amendment thereto and any
post-effective amendments thereof (including, in each case, exhibits), any
preliminary prospectus, the Prospectus and any amendment or supplement to the
Prospectus, all as provided in this Agreement; (d) the costs of
reproducing and distributing this Agreement; (e) the costs of distributing
the terms of the agreement relating to the organization of any selling group
to the members thereof by mail, telex or other means of communication; (f)
the filing fees incident to securing any required review by the National
Association of Securities Dealers, Inc. of the terms of sale of the Shares;
(g) any applicable listing or other fees; (h) the reasonable fees and
expenses of qualifying the Shares under the securities laws of the several
jurisdictions as provided in Section 5(h) and of preparing, printing and
distributing a Blue Sky Memorandum (including related fees and expenses of
counsel to the Underwriter); and (i) all other reasonable costs and expenses
incident to the performance of the obligations of the Company under this
Agreement; PROVIDED that, except as provided in this Section 6, Section 8 and
Section 10, the Underwriter shall pay its own costs and expenses, including
the costs and expenses of its counsel, any transfer taxes on the Shares which
it may sell and the expenses of advertising any offering of the Shares made
by the Underwriter.
SECTION 7. CONDITIONS OF UNDERWRITER'S OBLIGATIONS. The obligations
of the Underwriter hereunder are subject to the accuracy, when made and on the
Delivery Date, of the representations and warranties of the Company contained
herein, to the performance by the Company of its obligations hereunder, and to
each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the
Commission in accordance with Section 5(a); no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and any request of the
Commission for inclusion of additional information in the Registration
Statement or the Prospectus or otherwise shall have been complied with.
(b) The Underwriter shall not have been advised by the
Company nor shall it have discovered and disclosed to the Company on or
prior to the Delivery Date that the Registration Statement or the
Prospectus or any amendment or supplement thereto contains an untrue
statement of a fact which, in your opinion or in the opinion of Xxxxxxx
and Xxxxxx, counsel for the Underwriter, is material or omits to state a
fact which, in the opinion of such counsel, is material and is required
to be stated therein or is necessary to make the statements therein not
misleading.
(c) All corporate proceedings and other legal matters
incident to the authorization, form and validity of this Agreement, the
Shares, the Registration Statement and the Prospectus, and all other
legal matters relating to this Agreement and the transactions
contemplated hereby shall be reasonably satisfactory in all respects to
counsel for the Underwriter, 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.
(d) Xxxxxxxx & Xxxxx shall have furnished to the Underwriter
its written opinion, as counsel to the Company, addressed to the
Underwriter and dated the Delivery Date, in form and substance
satisfactory to the Underwriter, to the effect that:
(i) Each of the Company and CPFT is validly existing
and in good standing under the laws of Maryland, each is duly
qualified to transact business as a foreign trust and is in good
standing under the laws of the jurisdictions specified on a
schedule to such opinion, 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 authorized shares of beneficial
interest 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 beneficial interest
of CPFT have been duly and validly authorized and issued, and are
fully paid and non-assessable;
(iii) The Shares to be issued and sold by the Company to
the Underwriter and the Articles Supplementary have been duly and
validly authorized and, when the Shares are issued and delivered
against payment therefor, the Shares will be duly and validly
issued, fully paid and non-assessable and the holders thereof
will be entitled to the benefit of the terms contained in the
Articles Supplementary; and the Shares and the Articles
Supplementary conform to the descriptions thereof contained in
the Prospectus; the Shares are convertible into common shares of
beneficial interest in accordance with the terms of the
Declaration of Trust and the Articles Supplementary; the common
shares deliverable upon conversion of the Shares have been duly
and validly authorized and reserved for issuance and delivery
upon such conversion, and, when issued and delivered in
accordance with the provisions of such Shares, will be duly and
validly issued, fully paid and nonassessable, and will conform in
all material respects to the description of the common shares
contained in the Registration Statement;
(iv) The Registration Statement was declared effective
under the Securities Act as of the date and time specified in
such opinion, and, to such counsel's knowledge after inquiry of
the Commission staff, 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;
(v) Except as described in the Prospectus, there are
no preemptive rights to subscribe for or to purchase, nor any
restriction upon the voting or transfer of, the Shares pursuant
to the Company's Declaration of Trust or by-laws or any agreement
or other instrument known to such counsel;
(vi) Such counsel has no knowledge of any legal or
governmental proceeding that is pending or threatened against the
Company that has caused them to conclude that such proceeding is
required by Item 103 of Regulation S-K to be described in the
Prospectus but that is not so described. Such counsel has no
knowledge of any contract to which the Company is a party or to
which any of its property is subject that such counsel has
concluded is required to be described in the Prospectus but is
not so described or is required to be filed as an exhibit to the
Registration Statement or the filings incorporated by reference
therein but has not been so filed;
(vii) The Registration Statement and the Prospectus,
including the documents incorporated by reference in the
Prospectus, (in each case, not including the financial statements
and data and related schedules included therein or omitted
therefrom, 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;
(viii) This Agreement has been duly authorized, executed
and delivered by the Company;
(ix) The statements contained in the Prospectus under
the captions "Description of the Series B Preferred Shares,"
"Certain Federal Income Tax Considerations," "Description of
Shares of Beneficial Interest," "Certain Provisions of Maryland
Law and of the Company's Declaration of Trust and Bylaws" and
"Federal Income Tax Considerations Relating to the Company's REIT
Status," in each case insofar as they constitute summaries of
laws, documents or proceedings, are correct in all material
respects;
(x) Except as disclosed in the Registration Statement
and the exhibits contained or incorporated by reference therein,
to such counsel's knowledge, there are no contracts, agreements
or understandings between the Company and any person granting
such person the right to require the Company to file a
registration statement under the Securities Act with respect to
any securities of the Company owned or to be owned by such person
or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or
in any
securities being registered pursuant to any other registration
statement filed by the Company under the Securities Act;
(xi) Neither the Company nor CPFT 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;
(xii) The execution, delivery and performance of this
Agreement and the issue and sale of the Shares being sold
pursuant to this Agreement and the compliance by the Company with
all of the provisions of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized by
all necessary trust action and did not and will not conflict with
or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon
any of the properties or assets of the Company or any of its
subsidiaries pursuant to any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument filed as an
exhibit to the Company's Annual Report on Form 10-K for the year
ended December 31, 1998, 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 CPFT or any statute (except that such
counsel need not express any opinion in this paragraph as to
compliance with any disclosure requirement or any prohibition
against fraud or misrepresentation or as to whether performance
of the indemnification or contribution provisions in this
Agreement would be permitted) 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 Shares under the Securities Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and
applicable state securities laws in connection with the purchase
and distribution of the Shares by the Underwriters, no consent,
approval, authorization or order of, or filing or registration
with, any such court or governmental agency or body was or is
required for the execution, delivery and performance of this
Agreement by the Company and the consummation of the transactions
contemplated hereby;
(xiii) The Company is organized in conformity with the
requirements for qualification as a REIT under the Code;
(xiv) The Company has met the requirements to qualify as
a REIT for its taxable years ending prior to the date hereof. If
results of operations for its current taxable year and subsequent
taxable years are in accordance with expectations set forth in an
officer's certificate dated
the date hereof, the Registration Statement and the
Prospectus, the Company will continue to so qualify.
In rendering such opinion, such counsel may rely as to matters of
Maryland law on the opinion of Xxxxxx, Feinblatt, Rothman, Hoffberger &
Xxxxxxxxx, LLC, and as to the compliance as to form of the Registration
Statement, any reports under the Exchange Act incorporated therein which
were filed prior to the filing of the Company's Form 10-K for the year
ended December 31, 1998 and the Basic Prospectus, upon the opinion of
Ungaretti & Xxxxxx, which opinions shall be in form and substance
reasonably satisfactory to counsel for the Underwriter, PROVIDED that
such counsel shall state that it believes that both the Underwriter and
it are justified in relying upon such opinions. Such counsel shall also
have furnished to the Underwriter a written statement, addressed to the
Underwriter and dated the Delivery Date, in form and substance
reasonably satisfactory to the Underwriter, to the effect that no facts
have come to the attention of such counsel which has caused it to
believe that the Registration Statement, as of the Effective Date and as
of the Delivery Date, contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading, or
that the Prospectus, as of the Delivery Date and as of the date of the
Prospectus Supplement, contains or contained any untrue statement of a
material fact or omits or omitted 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; such statement need not address the financial statements and
data included therein or omitted therefrom.
(e) Xxxxxxx and Xxxxxx shall have furnished to the
Underwriter its written opinion, as counsel to the Underwriter,
addressed to the Underwriter and dated the Delivery Date, in form and
substance satisfactory to the Underwriter. In giving its opinion,
Xxxxxxx and Xxxxxx may rely as to matters of Maryland law on the opinion
of Xxxxxx, Feinblatt, Rothman, Hoffberger & Xxxxxxxxx, LLC, which
opinion shall be in form and substance satisfactory to counsel for the
Underwriter. Xxxxxxx and Xxxxxx shall also have furnished to the
Underwriter a written statement, addressed to the Underwriter and dated
the Delivery Date, in form and substance satisfactory to the
Underwriter, to the effect that no facts have come to the attention of
such counsel which lead it to believe that the Registration Statement,
as of the Delivery Date, contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein not misleading, or
that the Prospectus, as of the Delivery Date and at the time such
Prospectus was issued, contains any untrue statement of a material fact
or omits to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(f) The Company shall have furnished to the Underwriter a
letter (the
"BRING-DOWN LETTER") of PricewaterhouseCoopers, addressed to the
Underwriter and dated the Delivery Date (i) confirming that they are
independent public accountants within the meaning of the Securities
Act and are in compliance with the applicable requirements relating to
the qualification of accountants under Rule 2-01 of Regulation S-X of
the Commission, (ii) stating, as of the date of the bring-down letter
(or, with respect to matters involving changes or developments since
the respective dates as of which specified financial information is
given or incorporated by reference in the Prospectus, as of a date not
more than five days prior to the date of the bring-down letter), the
conclusions and findings of such firm with respect to the financial
information and other matters covered by its letter (the "INITIAL
LETTER") delivered to the Underwriter concurrently with the execution
of this Agreement and (iii) confirming in all material respects the
conclusions and findings set forth in the initial letter.
(g) The Company shall have furnished to the Underwriter a
certificate, dated the Delivery Date, of its Chairman of the Board, its
President or a Vice President and its chief financial officer stating
that:
(i) The representations, warranties and agreements of
the Company in Section 1 are true and correct as of the Delivery
Date; the Company has complied with all its agreements contained
herein; and the conditions set forth in Sections 7(a) and 7(h)
have been fulfilled;
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued and, to the best of each
such officer's knowledge, no proceeding for that purpose is
pending or threatened by the Commission;
(iii) All filings required by Rule 424(b) of the Rules
and Regulations have been made; and
(iv) They have carefully examined the Registration
Statement and the Prospectus and, in their opinion (A) as of the
Effective Date, the Registration Statement and Prospectus did not
include any untrue statement of a material fact and did not omit
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and (B)
since the Effective Date no event has occurred which should have
been set forth in a supplement or amendment to the Registration
Statement or the Prospectus which has not been so set forth.
(h) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial statements
included in the Prospectus any loss or interference with its business
from fire, explosion, flood, earthquake or other calamity, whether or
not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; (ii) since such date there shall not
have been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus, or (iii) trading in the Shares
has not been suspended by the Commission or the New York Stock Exchange
(the "NYSE"), the effect of which, in any such case described in clause
(i), (ii) or (iii), is, in the judgment of the Underwriter, so material
and adverse as to make it impracticable or inadvisable to proceed with
the public offering or the delivery of the Shares being delivered on the
Delivery Date on the terms and in the manner contemplated in the
Prospectus.
(i) Subsequent to the execution and delivery of this
Agreement there shall not have occurred any of the following: (i)
trading in securities generally on the NYSE, the American Stock Exchange
or the over-the-counter market shall have been suspended or minimum
prices shall have been established on either of such exchanges or such
market by the Commission, by such exchange or by any other regulatory
body or governmental authority having jurisdiction, (ii) a banking
moratorium shall have been declared by Federal or state authorities,
(iii) the United States shall have become engaged in hostilities, there
shall have been an escalation in hostilities involving the United States
or there shall have been a declaration of a national emergency or war by
the United States, (iv) the rating assigned by any nationally recognized
statistical rating organization to any preferred shares of the Company
shall not have been lowered since the date hereof nor shall any such
rating organization have publicly announced that it has placed any
preferred shares of the Company on what is commonly termed a "watch
list" for possible downgrading, or (v) there shall have occurred such a
material adverse change in general economic, political or financial
conditions (or the effect of international conditions on the financial
markets in the United States shall be such) as, in the case of clause
(v), to make it, in the judgment of the Underwriter, impractical or
inadvisable to proceed with the public offering or delivery of the
Shares being delivered on the Delivery Date on the terms and in the
manner contemplated in the Prospectus.
(j) The Company has filed an application with the NYSE to
list the Shares thereon.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriter. The Company shall furnish to you conformed
copies of such opinions, certificates, letters and other documents in such
number as you shall reasonably request. If any of the conditions specified in
this Section 7 shall not have been fulfilled when and as required by this
Agreement, the Agreement and all obligations of the Underwriter hereunder may be
cancelled at, or at any time prior to, the Delivery Date, by you. Any such
cancellation shall be without liability of the Underwriter to the Company.
Notice of
such cancellation shall be given the Company in writing, or by telegraph or
telephone and confirmed in writing.
SECTION 8. INDEMNIFICATION AND CONTRIBUTION. (a) The Company shall
indemnify and hold harmless the Underwriter and each person, if any, who
controls the Underwriter within the meaning of the Securities Act from and
against any loss, claim, damage or liability, joint or several, or any action in
respect thereof (including, but not limited to, any loss, claim, damage,
liability or action relating to purchases and sales of Shares), to which the
Underwriter or controlling person may become subject, under the Securities Act
or otherwise, insofar as such loss, claim, damage, liability or action arises
out of, or is based upon, (i) any untrue statement or alleged untrue statement
of a material fact contained in any preliminary prospectus, the Registration
Statement or the Prospectus or in any amendment or supplement thereto or (ii)
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
shall reimburse the Underwriter and each such controlling person promptly upon
demand for any legal or other expenses reasonably incurred by the Underwriter or
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred; PROVIDED, HOWEVER, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in any preliminary prospectus,
the Registration Statement or the Prospectus or in any such amendment or
supplement in reliance upon and in conformity with written information furnished
to the Company by or on behalf of the Underwriter specifically for inclusion
therein. The foregoing indemnity agreement is in addition to any liability
which the Company may otherwise have to the Underwriter or to any controlling
person of the Underwriter.
(b) The Underwriter shall indemnify and hold harmless the Company,
each of its directors (including any person who, with his or her consent, is
named in the Registration Statement as about to become a director of the
Company), each of its officers who signed the Registration Statement and each
person, if any, who controls the Company within the meaning of the Securities
Act, from and against any loss, claim, damage or liability, joint or several, or
any action in respect thereof, to which the Company or any such director,
officer or controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus, the Registration
Statement or the Prospectus or in any amendment or supplement thereto or (ii)
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, but
in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
the Underwriter specifically for inclusion therein, and shall reimburse the
Company and any such director, officer or controlling person for any legal or
other expenses reasonably incurred by the Company or any
such director, officer or controlling person in connection with investigating
or defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred. The foregoing indemnity
agreement is in addition to any liability which the Underwriter may otherwise
have to the Company or any such director, officer or controlling person.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; PROVIDED, HOWEVER, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure and, PROVIDED FURTHER, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 8.
If any such claim or action shall be brought against an 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 reasonably satisfactory to the indemnified party. After notice
from the indemnifying party to the indemnified party of its election to assume
the defense of such claim or action, the indemnifying party shall not be liable
to the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; PROVIDED, HOWEVER, that
the Underwriter shall have the right to employ counsel to represent jointly the
Underwriter and controlling persons who may be subject to liability arising out
of any claim in respect of which indemnity may be sought by the Underwriter
against the Company under this Section 8 if the Underwriter shall have
reasonably concluded that there may be legal defenses available to it which are
different from or additional to those available to the Company, or the
Underwriter and the Company may have conflicting interests which would make it
inappropriate for the same counsel to represent both of them, and in that event
the fees and expenses of such separate 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) If the indemnification provided for in this Section 8 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) or 8(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof,
referred to therein, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable
by such indemnified party as a result of such loss, claim, damage or
liability, or action in respect thereof, (i) in such proportion as shall be
appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriter on the other from the offering of the Shares or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law or if the indemnified party failed to give the notice required
under Section 8(c), in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Underwriter 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 Underwriter on the other with respect to such
offering shall be deemed to be in the same proportion in the case of the
Company as the total price paid to the Company for the Shares by the
Underwriter (net of underwriting discount but before deducting expenses), and
in the case of the Underwriter as the underwriting discount received by it
bears to the total of such amounts paid to the Company and received by the
Underwriter as underwriting discount in each case as contemplated by the
Prospectus. 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 b
the Company or the Underwriter, 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 Underwriter agree that it would
not be just and equitable if contributions pursuant to this Section 8(d) were
to be determined by pro rata allocation or by any other method of allocation
which does not take into account the equitable considerations referred to
herein. The amount paid or payable by an indemnified party as a result of
the loss, claim, damage or liability, or action in respect thereof, referred
to above in this Section 8(d) shall be deemed to include, for purposes of
this Section 8(d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8(d), the
Underwriter shall not be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of
any damages which the Underwriter has otherwise paid or become liable to pay
by reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The Underwriter confirms that the statements with respect to the
public offering of the Shares set forth on the cover page of, and under the
caption "Underwriting" in, the Prospectus are correct and constitute the only
information furnished in writing to the Company by or on behalf of the
Underwriter specifically for inclusion in the Registration Statement and the
Prospectus.
SECTION 9. TERMINATION. The obligations of the Underwriter
hereunder may be terminated by the Underwriter by notice given to and received
by the Company prior to delivery of and payment for the Shares, if, prior to
that time, any of the events described in Sections 7(h) or 7(i) shall have
occurred or if the Underwriter shall decline to purchase the Shares for any
reason permitted under this Agreement.
SECTION 10. REIMBURSEMENT OF UNDERWRITER'S EXPENSES. If (a) the
Company shall fail to tender the Shares for delivery to the Underwriter unless
for any reason permitted under this Agreement or (b) the Underwriter shall
decline to purchase the Shares for any reason permitted under this Agreement
(including the termination of this Agreement pursuant to Section 9), the Company
shall reimburse the Underwriter for the reasonable fees and expenses of its
counsel and for such other reasonable out-of-pocket expenses as shall have been
incurred by it in connection with this Agreement and the proposed purchase of
the Shares, and upon demand the Company shall pay the full amount thereof to the
Underwriter.
SECTION 11. NOTICES, ETC. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Underwriter, shall be delivered or sent by
mail, telex or facsimile transmission to Xxxxxx X. Xxxxx & Co., L.P.,
00000 Xxxxxxxxxx Xxxx, Xx. Xxxxx, Xxxxxxxx 00000, Attention: Investment
Banking (Fax: 000-000-0000).
(b) if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth
in the Registration Statement, Attention: President (Fax:
000-000-0000).
Any such statements, requests, notices or agreements shall take effect
at the time of receipt thereof.
SECTION 12. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement
shall inure to the benefit of and be binding upon the Underwriter, the Company,
and their respective successors. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except that (A) the
representations, warranties, indemnities and agreements of the Company contained
in this Agreement shall also be deemed to be for the benefit of the person or
persons, if any, who control any Underwriter within the meaning of Section 15 of
the Securities Act and (B) the indemnity agreement of the Underwriter contained
in Section 8(b) of this Agreement shall be deemed to be for the benefit of
directors of the Company, officers of the Company who have signed the
Registration Statement and any person controlling the Company within the meaning
of Section 15 of the Securities Act. Nothing in this Agreement is intended or
shall be construed to give any person, other than the persons referred to in
this Section 12, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
SECTION 13. SURVIVAL. The respective indemnities, representations,
warranties and agreements of the Company and the Underwriter contained in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the Shares and shall
remain in full force and effect, regardless of any investigation made by or on
behalf of any of them or any person controlling any of them.
SECTION 14. DEFINITION OF THE TERMS "BUSINESS DAY" AND "SUBSIDIARY."
For purposes of this Agreement, (a) "BUSINESS DAY" means any day on which the
New York Stock Exchange, Inc. is open for trading and (b) "SUBSIDIARY" has the
meaning set forth in Rule 405 of the Rules and Regulations.
SECTION 15. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of New York.
SECTION 16. COUNTERPARTS. This Agreement may be executed in one or
more counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
SECTION 17. HEADINGS. The headings herein are inserted for
convenience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Agreement.
If the foregoing correctly sets forth the agreement between the Company
and the Underwriter, please indicate your acceptance in the space provided for
that purpose below.
Very truly yours,
CENTERPOINT PROPERTIES TRUST
By /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President,
Secretary, Chief Financial
Officer and General Counsel
ACCEPTED:
XXXXXX X. XXXXX & CO., L.P.
By
Name:
Title:
