Exhibit 1.2
U.S. $500,000,000*
CENTERPOINT PROPERTIES TRUST
MEDIUM-TERM NOTES
DISTRIBUTION AGREEMENT
___ ___, 2004
Wachovia Capital Markets, LLC
Banc One Capital Markets, Inc.
ABN AMRO Incorporated
Banc of America Securities LLC
Xxxxxx Brothers Inc.
c/o Wachovia Capital Markets, LLC
One Wachovia Center
000 X. Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 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 $500,000,000* 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 March 12, 2004 (the
"ORIGINAL INDENTURE"), by and between the Company and SunTrust Bank, as trustee
(the "TRUSTEE"), as supplemented by the First Supplemental Indenture, dated as
of ___ ___, 2004 (the "FIRST SUPPLEMENT"), by and between the Company and the
Trustee (the Original Indenture, as supplemented, and as may be further
supplemented and amended from time to time, is referred to as the "INDENTURE.")
The Notes shall have the maturity ranges, applicable interest rates or
interest rate formulas, specified currencies, issue prices, 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.
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* Or the U.S. dollar equivalent in certain specified foreign currencies,
composite currencies or currency units.
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.
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) Two registration statements (File Nos. 333-113572 and
333-42748) on Form S-3, and amendments thereto, with respect to, among
other things, the Notes, have 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
have 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 two
registration statements, collectively, (including all documents
incorporated therein by reference) when each became effective under the
Act, and as from time to time amended or supplemented thereafter, or, if
later, at the time of the Company's filing of an annual report pursuant to
the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT") (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 (including 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)
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(each a "MARKETING PERIOD"), in all material respects to the requirements
of the Act, 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, at the time it
became effective, or, if later, at the time of the Company's filing of an
annual report pursuant to the Exchange Act, did not 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 and the Registration Statement and each Prospectus do not, 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, with respect to the
Prospectus only, in light of the circumstances under which they were made;
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 CP Financing Trust, a Maryland real estate
investment trust ("CPFT"), have been duly organized under the Maryland REIT
Law and are validly existing as real estate investment trusts in good
standing under the laws of Maryland and are duly qualified to do business
and in good standing as foreign trusts in each jurisdiction in which their
respective ownership or lease of property or the conduct of their
respective business requires 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.
Other than CPFT, the Company's 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 as foreign corporations
in each jurisdiction in which their respective ownership or lease of
property or the conduct of their respective businesses requires 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 corporate power
and authority necessary to own or hold their respective properties and to
conduct the businesses in which they are engaged; and, except for 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.
(d) 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 or issued shares
of beneficial interest, as applicable, of each subsidiary of the Company
have been duly and validly authorized and issued and are fully paid and
non-
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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 and, in the case of
any applicable Purchase Agreement at the time of execution will be, 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 their respective terms; the execution, delivery and
performance of this Agreement and any applicable Purchase Agreement and the
Indenture by the Company and the consummation of the transactions
contemplated hereby and thereby have been, or in the case of any applicable
Purchase Agreement at the time of execution will be, 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 for 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, 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
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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 preferred stock or debentures into Common
Shares and the Company's Dividend Reinvestment and Stock Purchase Plan 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;
and the financial schedules and other financial information included or
incorporated by reference in the Registration Statement and the Prospectus
present fairly, or will present fairly at all times during each Marketing
Period, the information required to be stated therein.
(j) PricewaterhouseCoopers LLP, 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 or will be,
as applicable, independent public accountants as required by the Securities
Act and the Rules and Regulations.
(k) The Company (i) has established and maintains disclosure
controls and procedures (as such term is defined in Rule 13a-14 under the
Exchange Act), which (A) are designed to ensure that material information
relating to the Company, including its consolidated subsidiaries, is made
known to the Company's principal executive officer and its principal
financial officer by others within those entities particularly during the
periods in which the periodic reports required under the Exchange Act are
being prepared, (B) have been evaluated for effectiveness as of a date
within 90 days prior to the filing of the Company's most recent annual or
quarterly report filed with the Commission, and (C)
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are effective in all material respects to perform the functions for which
they were established, (ii) based on the evaluation of its disclosure
controls and procedures, is not aware of (A) any significant deficiency in
the design or operation of internal controls which could adversely affect
the Company's ability to record, process, summarize and report financial
data or any material weaknesses in internal controls, or (B) any fraud,
whether or not material, that involves management or other employees who
have a significant role in the Company's internal controls, and (iii) since
the date of the most recent evaluation of such disclosure controls and
procedures, has experienced no significant changes in internal controls or
in other factors that could significantly affect internal controls,
including any corrective actions with regard to significant deficiencies
and material weaknesses.
(l) (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; 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, which exercise of
such right would, either 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; (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, except as may be described in the Prospectus or any such
matter which would not, individually or in the
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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.
(m) 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.
(n) The Company and each of its subsidiaries own or possess
adequate rights to use all patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service xxxx
registrations, copyrights and licenses necessary for the conduct of their
respective businesses, except where the failure to own or possess such
rights 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 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.
(o) 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, would
reasonably 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; and
to the best of the Company's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by others.
(p) 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.
(q) 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.
(r) 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.
(s) 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");
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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.
(t) 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, would
reasonably be expected to have) a material adverse effect on the
consolidated financial condition, stockholders' equity, results of
operations, business or prospects of the Company and its subsidiaries.
(u) 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 preferred stock or debentures into
Common Shares and the issuance of shares under the Dividend Reinvestment
and Stock Purchases Plan, (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 transaction not in the ordinary course of business or (iv) declared or
paid any dividend on its capital stock (other than regular quarterly
dividends).
(v) 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.
(w) 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
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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.
(x) 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.
(y) 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.
(z) 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.
(aa) 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.
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(bb) 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.
(cc) 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 in
all material respects; 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.
(dd) 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
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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, unless otherwise agreed, 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
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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 upon such terms as may be specified in the applicable Pricing
Supplement. Such Purchase Agreement shall also specify any requirements for
delivery of opinions of counsel, accountants 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 Xxxxxxx and Xxxxxx LLP,
000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 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
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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 reasonable judgment of 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. Upon 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, if requested, 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
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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.
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(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 the Agent or Agents purchasing such
Notes, 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); provided, however, that such
fees do not exceed $5,000; (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:
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(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 (i) Xxxxxxxx & Xxxxx LLP, counsel to the Company and (ii)
Xxxxxxx Xxxxx Xxxxxxx & Ingersoll, LLP, special Maryland counsel to the
Company, in each case in form and substance satisfactory to the Agents and
their counsel, substantially in the form of Exhibits E-1 and E-2,
respectively, attached hereto.
Xxxxxxxx & Xxxxx LLP shall also have furnished to the Agents a written
statement, addressed to the Agents and dated the Closing Date, in form and
substance reasonably
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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 the 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; such statement need not address the financial statements
included therein or omitted therefrom.
(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 (or, if later, at the time of the
Company's filing of a post-effective amendment to the Registration
Statement or the Company's filing of an annual report pursuant to the
Exchange Act), did not 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, (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 PricewaterhouseCoopers 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
-17-
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, inquired 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 consolidated financial statements,
if any, incorporated by reference in the Registration
Statement, Prospectus and Prospectus Supplement, do not comply
as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the related
rules and regulations adopted by the Commission;
(B) any material modifications should be made to the
unaudited consolidated financial statements, if any,
incorporated by reference in the Registration Statement,
Prospectus, and Prospectus Supplement, for them to be in
conformity with generally accepted accounting principles;
(C) 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;
(D) 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
(E) for the period from the date of the latest income
statement included in the Prospectus to the closing date of the
latest available
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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 (D) and (E) 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 Xxxxxxx and Xxxxxx 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
or New York State authorities or a material disruption in commercial
banking or securities settlement or clearance services in the United
States; (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
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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 a national emergency or war
by the United States, an act of terrorism shall have been committed against
the United States or any of its nationals or properties; or (vi) there
shall have occurred such a calamity or crisis or such a material adverse
change in general domestic or international economic, political or
financial conditions, including without limitation as a result of terrorist
activities (or the effect of international conditions on the financial
markets in the United States shall be such), 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), and 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
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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), and 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 (ii), (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 or amended financial information, and 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
-21-
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
PricewaterhouseCoopers 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 or the Exchange 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 as such costs
and expenses are incurred; PROVIDED, HOWEVER, that (i) the Company shall not be
liable in
-22-
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, and (ii) such indemnity with respect to the Prospectus shall
not inure to the benefit of any Agent (or any person controlling such Agent)
from whom the person asserting any such loss, claim, damage or liability
purchased the Notes which are the subject thereof if such person did not receive
a copy of the Prospectus (as amended or supplemented), excluding documents
incorporated therein by reference, at or prior to the confirmation of the sale
of such Notes to such person in any case where such delivery is required by the
Act and the untrue statement or omission of a material fact contained in the
Prospectus was corrected in the Prospectus (as amended or supplemented). This
indemnity agreement will be in addition to any liability which the Company may
otherwise have. 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. Each Agent, severally and not jointly,
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 or the Exchange 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 such Agent
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 as
such costs and expenses are incurred. The foregoing indemnity agreement is in
addition to any liability which such Agent 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
-23-
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 (and any local 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 or alleged 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
-24-
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. The Agents'
obligations under this Section 7(d) to contribute are several in proportion to
their respective obligations under this Agreement and any Purchase Agreement and
not joint.
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 or if any Agent continues to hold for resale any Notes purchased as
a Principal, 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
-25-
Amendment (a "FOREIGN CURRENCY AMENDMENT" or "INDEXED NOTE AMENDMENT," as the
case may be) in the form attached hereto as Exhibit 1). 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:
_______________________________________________. Notices to the Company shall be
directed to it as follows: 0000 Xxxxx Xxxx, Xxx Xxxxx, Xxxxxxxx 00000;
telephone: (000) 000-0000, facsimile: (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 or Section 20 of the Exchange 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.
-26-
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, Name:
as of the date first above written: ----------------------------------
Title:
---------------------------------
WACHOVIA CAPITAL MARKETS, LLC
By
----------------------------
Name:
----------------------
Title:
---------------------
BANC ONE CAPITAL MARKETS, INC.
By
----------------------------
Name:
----------------------
Title:
---------------------
ABN AMRO INCORPORATED
By
----------------------------
Name:
----------------------
Title:
---------------------
BANC OF AMERICA SECURITIES LLC
By
----------------------------
Name:
----------------------
Title:
---------------------
XXXXXX BROTHERS INC.
By
----------------------------
Name:
----------------------
Title:
---------------------
-27-
SCHEDULE A
CENTERPOINT PROPERTIES TRUST
MEDIUM-TERM NOTES
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 [TO COME]
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
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:
Record 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 Payment Dates:
Record 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:
-2-
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"). _________________, ___________________, ________________, 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 ___ ___, 2004 (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 March 12, 2004 (the "ORIGINAL INDENTURE"), by and
between the Company and SunTrust Bank, as trustee (the "TRUSTEE"), as
supplemented by the First Supplemental Indenture, dated as of ___ ___, 2004 (the
"FIRST SUPPLEMENT"), by and between the Company and the Trustee (the Original
Indenture, as supplemented, and as may be further supplemented and amended from
to time to time, is referred to as 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, as specified in the applicable Pricing Supplement (each such specified
date, 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 (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.
-2-
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 on the third
Business Day 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 another date; PROVIDED, HOWEVER, that the Company will so
notify the Trustee of any such other date on 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.
-3-
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
-4-
(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.
-5-
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:
SETTLEMENT
PROCEDURE TIME (NEW YORK)
A 5 PM on date of order
B 3 PM on the Business Day prior to Settlement Date
C-D 12 noon on the Settlement Date
E 2:15 PM on the Settlement Date
F-G 3 PM on the Settlement Date
H 5 PM on Business Day after the Settlement Date
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
-6-
interest accrued thereon on the date of redemption, plus a Make-Whole Amount, as
described in the Prospectus.
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
-7-
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 to the Agents as follows:
________________________________________. 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.
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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.
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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 ail 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,
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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.
-3-
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
ouch 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
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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
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Payment Dates that will occur with respect to Floating Rate Book-Entry Notes
during the six-month period beginning on such Interest Determination Date first
Business Day. Promptly after each 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
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
-4-
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
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(iii) spread or spread multiplier, if any
(iv) interest rate reset periods
(v) interest payment dates
(vi) index maturity
(vii) minimum and minimum interest rate, 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.
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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.
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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
PROCEDURE TIME (NEW YORK)
A 11:00 A.M. on the Sale Date
B 2:00 P.M. on the Sale Date
C-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
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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 ail, 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.
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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
___ ___, 2004 (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 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 or a
material disruption in commercial banking or securities settlement or clearance
services in the United States; (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 a national emergency or war by the United States, an act of
terrorism shall have been committed against the United States or any of its
nationals or properties; or (iv) there shall have occurred such a calamity or
crisis or such a material adverse change in general domestic or international
economic, political or financial conditions, including without limitation as a
result of terrorist activities (or the effect of international conditions on the
financial markets in the United States shall be such), 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. 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.
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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:
CENTERPOINT PROPERTIES TRUST
By:
----------------------------
Authorized Signatory
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EXHIBIT D
[FOREIGN CURRENCY] [INDEXED NOTE] AMENDMENT NO.
TO DISTRIBUTION AGREEMENT DATED ___ ____, 2004, 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 ___ ___,
2004, 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:
[NAMES OF AGENTS]
EXHIBIT E-1
1. Each of the Company, CPFT, CRS and the Venture is validly existing and in
good standing under the laws of their respective jurisdictions of
organization, each is duly qualified to transact business and is in good
standing under the laws of the jurisdictions specified in Schedule A to
this 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.
2. The Company has an authorized capitalization as set forth in the
Prospectus; all of the issued shares of capital stock or membership
interests of CPFT, CRS and the Venture have been duly and validly
authorized and issued, are fully paid and non-assessable and are
majority-owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims; and the Medium-Term Notes and the
2004-1 Notes conform to the description thereof contained in the
Prospectus.
3. The Registration Statement was declared effective under the Securities Act
as of May ___, 2004 and any required filing of the Prospectus and any
supplements thereto pursuant to Rule 424(b) have been made in the manner
and in within the time period required by Rule 424(b); to our 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.
4. We have no knowledge of any legal or governmental proceeding that is
pending or threatened against the Company that has caused us 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. We have no
knowledge of any contract to which the Company is a party or to which any
of its property is subject that we have 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.
5. The Distribution Agreement has been duly authorized, executed and delivered
by the Company.
6. The Indenture has been duly authorized, executed and delivered by the
Company, is a valid and binding obligation of the Company, and (assuming
due execution and delivery by the Trustee) is enforceable against the
Company in accordance with its terms; the Indenture has been qualified
under the Trust Indenture Act of 1939.
7. The issuance and sale of the Medium-Term Notes have been duly authorized by
the Company; the Medium-Term Notes, when (a) executed and authenticated in
accordance with the terms of the Indenture, (b) the terms thereof have been
fixed by 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 this Agreement, will
constitute valid and binding obligations of the Company enforceable in
accordance with their terms.
8. The 2004-1 Notes have been duly authorized by the Company, have been
executed and authenticated in accordance with the terms of the Indenture
and constitute valid and binding obligations of the Company enforceable in
accordance with their terms.
9. The statements contained in the Prospectus under the captions "Description
of Debt Securities," and "Federal Income Tax Considerations Relating to Our
REIT Status," and the statements contained in the Prospectus Supplement
under the captions "Description of Notes" and "Certain U.S. Federal Income
Tax Considerations" in each case insofar as they constitute summaries of
laws, documents or proceedings, are correct in all material respects.
10. None of the Company, CPFT, CRS or the Venture 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.
11. The execution, delivery and performance by the Company of the Distribution
Agreement and the Purchase Agreement, if any, and the compliance by the
Company with all of the provisions of the Distribution Agreement, the
Purchase Agreement, if any, and the Indenture, the issuance and sale of the
2004-1 Notes and the consummation of the transactions contemplated hereby
and thereby 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 material 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, 2003, 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 we
express no 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
the Distribution Agreement would be permitted) or any order, rule or
regulation known to us of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their
properties or assets; except for the registration of the Notes under the
Securities Act and such consents, approvals, authorizations, registrations
or qualifications as may be required under the Exchange Act and applicable
state securities laws in connection with the purchase and distribution of
the Notes by the 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 the
Distribution Agreement by the Company and the consummation of the
transactions contemplated thereby; [and, except for such consents,
approvals, authorizations, registration and qualification as may be
required under the applicable state securities law, no filing or
registration with any
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such court or governmental agency or body is required for the issuance and
sale of the 2004-1 Notes.
12. The Company is organized in conformity with the requirements for
qualification as a REIT under the Code.
13. 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.
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EXHIBIT E-2
1. The Company has been duly formed and is validly existing as a real estate
investment trust in good standing under the laws of the State of Maryland.
2. The Company has the requisite real estate investment trust power and
authority to own, or hold under lease, its assets and conduct its business
as described in the Prospectus.
3. The execution and delivery of the Distribution Agreement by the Company
have been authorized by all necessary real estate investment trust action
on the part of the Company under its Declaration of Trust and Bylaws and
the Maryland REIT Law; and the Distribution Agreement has been duly
executed and, to our knowledge, delivered by the Company.
4. The execution and delivery of the Indenture by the Company have been duly
authorized by all necessary real estate investment trust action on the part
of the Company under its Declaration of Trust and Bylaws and the Maryland
REIT Law; and the Indenture has been duly executed and, to our knowledge,
delivered by the Company.
5. The issuance and sale of the Medium-Term Notes pursuant to the Distribution
Agreement have been duly authorized by all necessary real estate investment
trust action on the part of the Company under its Declaration of Trust and
Bylaws and the Maryland REIT Law; and when the remaining terms of the
Medium-Term Notes, and the issuance and sale thereof, are established in
accordance with the Distribution Agreement and the Indenture by the Board
of Trustees or by a duly authorized officer or officers of the Company, and
such Notes are executed and delivered by a duly authorized officer or
officers of the Company, and are authenticated, issued and delivered
against payment therefore, all in accordance with the terms of the
Indenture in the Distribution Agreement, the Medium-Term Notes will have
been duly executed and delivered by the Company.
6. The 2004-1 Notes have been duly authorized by the Company, have been
executed and authenticated in accordance with the terms of the Indenture
and constitute valid and binding obligations of the Company enforceable in
accordance with these terms.
7. The execution and delivery by the Company of the Distribution Agreement and
the Indenture, the compliance by the Company with the provisions of the
Distribution Agreement and the Indenture (insofar as the provisions of the
Indenture relate to the Notes) and the consummation of the transactions
contemplated by the Distribution Agreement and the Indenture (insofar as
the transactions contemplated by the Indenture relate to the Notes): (i)
will not contravene any provision of the Maryland REIT Law; (ii) will not
result in any violation of the provisions of the Declaration of Trust or
Bylaws of the Company; and (iii) will not, to our knowledge, result in any
violation of any order, rule, regulation or decree of any court or
governmental agency or authority of the State of
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Maryland issued under or pursuant to the Maryland REIT Law and applicable
to the properties, assets or business of the Company.
8. No authorization, approval, consent, decree or order of any court or
governmental authority or agency is required under the Maryland REIT Law in
connection with the offer, issuance and sale of the Notes in accordance
with the Distribution Agreement and the Indenture, except for such as have
been obtained or rendered, as the case may be.
9. The statements contained in the Prospectus under the caption "Certain
Provisions of Maryland Law and of the CenterPoint Properties Trust
Declaration of Trust and By-laws" insofar as such statements constitute
summaries of Maryland law or of the Declaration of Trust or Bylaws of the
Company, constitute a fair summary thereof.
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