CALCULATION AND EXCHANGE RATE AGENT AGREEMENT
BETWEEN
CENTERPOINT PROPERTIES TRUST
AND
U.S. BANK TRUST NATIONAL ASSOCIATION
DATED AS OF OCTOBER 23, 1998
CenterPoint Properties Trust, a Maryland real estate investment trust
(the "Company"), proposes to issue and sell Medium-Term Notes (the "Notes")
from time to time under, and pursuant to, the terms of an Indenture, dated as
of April 7, 1998, between the Company and U.S. Bank Trust National
Association, as trustee (the "Trustee"), as supplemented by the Second
Supplemental Indenture dated as of October 23, 1998 between the Company and
the Trustee (as so supplemented, the "Indenture"). Capitalized terms used
herein not otherwise defined shall have the meanings assigned to them in the
Notes or the Indenture, as the case may be.
For the purpose of providing for an agent of the Company to calculate
the base rates applicable to those Notes on which interest is to accrue at a
variable or floating rate ("Floating Rate Notes"), determined by reference to
LIBOR, the Commercial Paper Rate, the Treasury Rate, the CD Rate, the CMT
Rate, the Federal Funds Rate or the Prime Rate (collectively, the "Base
Rates") as are specified and described in the Floating Rate Notes, copies of
which are attached hereto as Exhibit A, and to calculate exchange rates with
respect to Notes ("Non-Dollar Notes") denominated in any foreign or composite
currency ("Specified Currency") for the purpose of converting Specified
Currency into U.S. dollars and for other purposes, the Company and U.S. Bank
Trust National Association hereby agree as follows:
SECTION 1. APPOINTMENT OF CALCULATION AND EXCHANGE RATE AGENT. The
Company hereby appoints U.S. Bank Trust National Association as Calculation
and Exchange Rate Agent (the "Calculation and Exchange Rate Agent") of the
Company with respect to any Floating Rate Notes and Non-Dollar Notes to be
issued by the Company under and pursuant to the terms of the Indenture, and
the Calculation and Exchange Rate Agent hereby accepts its obligations as set
forth in the Agreement upon the terms and conditions set forth herein.
SECTION 2. (a) CALCULATION OF BASE RATES. As soon as reasonably
practical on or after each interest determination date for any Floating Rate
Note, the Calculation and Exchange Rate Agent shall determine the applicable
interest rate for such Note (computed without regard to the Spread or Spread
Multiplier, if any, applicable to such Note) (the "Interest Rate Base") and
notify the Company and the Trustee of such Interest Rate Base. Upon the
request of the Holder of any Floating Rate Note, the Calculation and Exchange
Rate Agent shall provide the Interest Rate Base then in effect with respect
to such Note and, if determined, the Interest Rate Base that will become
effective on the next Interest Reset Date with respect to such Note. All
Interest Rate
Base determinations made by the Calculation and Exchange Rate Agent with
respect to the Floating Rate Notes, shall, in the absence of manifest error,
be conclusive for all purposes and binding upon the Company. Upon the
issuance and sale of any Floating Rate Note, the Company shall promptly cause
the Calculation and Exchange Rate Agent to receive a copy of the pricing
supplement with respect to such Note.
(b) DETERMINATION OF EXCHANGE RATES UPON ISSUANCE OF NOTES.
Upon any issuance of Non-Dollar Notes from time to time, the Calculation and
Exchange Rate Agent shall determine the U.S. dollar equivalent of the
aggregate public offering price or purchase price of such Notes on the basis
of the noon buying rate for cable transfers payable in the applicable Foreign
Currencies in the City of New York on the applicable issue date, as certified
for customs purposes by the Federal Reserve Bank of New York (the "Market
Exchange Rate").
(c) EXCHANGE OF CURRENCIES. With respect to any payments to
be made in respect of a Non-Dollar Note, the Calculation and Exchange Rate
Agent will determine the amount of any U.S. dollar payment in respect of such
Note by selecting at approximately 11:00 a.m., New York City time, on the
second Business Day preceding the applicable Payment Date, the indicative
quotations for the Specified Currency appearing at such time on the bank
composite or multi-contributor pages of the Quoting Source (as defined below)
for the first three banks, in descending order of their appearance, on a list
of banks to be agreed to by the Company and the Calculation and Exchange Rate
Agent (any of which may include an Agent or the Calculation and Exchange Rate
Agent) prior to such second Business Day, which are offering quotes on the
Quoting Source. The Calculation and Exchange Rate Agent shall select from
among the selected quotations the one which will yield the largest number of
U.S. dollars upon conversion from such Specified Currency. The "Quoting
Source" shall mean Reuters Monitor Foreign Exchange Service, or if the
Calculation and Exchange Rate Agent determines that such service is not
available, Telerate Monitor Foreign Exchange Service. If the Calculation and
Exchange Rate Agent determines that neither service is available, the Company
and the Calculation and Exchange Rate Agent shall agree on a comparable
display or other comparable manner of obtaining quotations and such display
or manner shall become the Quoting Source.
(d) DETERMINATION UPON UNAVAILABILITY OR NON-USE OF
SPECIFIED CURRENCY. Except as set forth below in subsection 2(e), if (i)
fewer than three bid quotations are available at the time a determination is
to be made by the Calculation and Exchange Rate Agent pursuant to subsection
2(c), or (ii) the Calculation and Exchange Rate Agent received no later than
12:00 noon, New York City time, on such second Business Day preceding the
applicable Payment Date notice from the Company that there exist exchange
controls or other circumstances beyond the Company's control rendering such
Specified Currency unavailable, then the Calculation and Exchange Rate Agent
shall, prior to such Payment Date, notify the Company and the Trustee of the
noon buying rate in New York City for cable transfers, in the Specified
Currency indicated in such notice, as certified for customers' purposes by
the Federal Reserve Bank of New York (the "Market Exchange Rate") as of such
second Business Day. If the Market Exchange Rate for such date is not then
available, the Calculation and Exchange Rate Agent shall immediately notify
the Company and the Trustee of the most recently available Market Exchange
Rate for such Specified Currency.
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(e) DETERMINATIONS UPON UNAVAILABILITY OR NON-USE OF ECU.
In the case of ECUs, if: (i) fewer than three bid quotations are available
at the time a determination is to be made by the Calculation and Exchange
Rate Agent pursuant to the preceding paragraph, or (ii) the Calculation and
Exchange Rate Agent received no later than 12:00 noon, New York City time, on
such second Business Day preceding the applicable Payment Date notice from
the Company that (A) there exist exchange controls or other circumstances
beyond the Company's control, rendering ECUs unavailable or (B) ECUs are no
longer used in the European Monetary System, rendering ECUs unavailable, then
the Calculation and Exchange Rate Agent shall, prior to such Payment Date,
notify the Company and the Trustee of the rate of conversion for ECUs into
U.S. dollars, determined as of such second Business Day on the following
basis: The component currencies of the ECUs for this purpose (the
"Components") shall be the currency amounts that were components of the ECUs
as of the last date on which ECUs were used in the European Monetary System.
The equivalent of ECUs in U.S. dollars shall be calculated by aggregating the
U.S. dollar equivalent of the Components. The U.S. dollar equivalent of each
of the Components shall be determined by the Calculation and Exchange Rate
Agent on the basis of the most recently available Market Exchange Rate for
the Components, or as otherwise specified to the Calculation and Exchange
Rate Agent by the Company.
(f) Upon determining any exchange rate as provided in this
Section, the Calculation and Exchange Rate Agent shall as soon as practicable
notify the applicable Trustee or Trustees, the paying agents and the Company
by telex or telecopy of such exchange rate.
SECTION 3. NEW BASE RATES. If the Company proposes to issue Floating
Rate Notes with an interest rate determined on a basis or formula not
referred to herein (a "New Base Rate"), the Company shall give a description
of such New Base Rate to the Calculation and Exchange Rate Agent. The
Calculation and Exchange Rate Agent shall determine if it is able and willing
to calculate the New Base Rate and, upon its agreement in writing to do so,
the term "Base Rate" shall be deemed to include the New Base Rate. If the
Calculation and Exchange Rate Agent notifies the Company that it is not able
or willing to calculate the New Base Rate, or that it is only willing to do
so on the basis of an increase of its fees not acceptable to the Company, the
Calculation and Exchange Rate Agent shall have no responsibility with respect
to such New Base Rate and the Company shall appoint a different calculation
agent to determine the New Base Rate.
SECTION 4. FEES AND EXPENSES. The Calculation and Exchange Rate Agent
shall be entitled to such compensation for its services under this Agreement
as may be agreed upon with the Company, and the Company shall pay such
compensation and shall reimburse the Calculation and Exchange Rate Agent for
all reasonable out-of-pocket expenses, disbursements and advances incurred or
made by the Calculation and Exchange Rate Agent in connection with the
services rendered by it under this Agreement, except any expenses,
disbursements or advances attributable to its gross negligence or bad faith.
SECTION 5. RIGHTS AND LIABILITIES OF CALCULATION AND EXCHANGE RATE
AGENT. The Calculation and Exchange Rate Agent shall incur no liability for,
or in respect of, any action
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taken, omitted to be taken or suffered by it in reliance upon any Floating
Rate Note or Non-Dollar Note, certificate, affidavit, instruction, notice,
request, direction, order, statement or other paper, document or
communication reasonably believed by it to be genuine. Any order,
certificate, affidavit, instruction, notice, request, direction, statement or
other communication from the Company made or given by it and sent, delivered
or directed to the Calculation and Exchange Rate Agent under, pursuant to or
as permitted by any provision of this Agreement shall be sufficient for
purposes of this Agreement if such communication is in writing and signed by
any officer of the Company. The Calculation and Exchange Rate Agent may
consult with counsel satisfactory to it and the opinion of such counsel shall
constitute full and complete authorization and protection of the Calculation
and Exchange Rate Agent with respect to any action taken, omitted to be taken
or suffered by it hereunder in good faith and in accordance with and in
reliance upon the opinion of such counsel. In acting under this Agreement,
the Calculation and Exchange Rate Agent (in its capacity as such) does not
assume any obligation towards, or any relationship of agency or trust for or
with the holders of the Notes.
SECTION 6. RIGHT OF CALCULATION AND EXCHANGE RATE AGENT TO OWN FLOATING
RATE OR NON-DOLLAR NOTES. The Calculation and Exchange Rate Agent may act as
Trustee under any Indenture and it, its officers, employees and shareholders
may become owners of, or acquire any interests in Floating Rate or Non-Dollar
Notes, with the same rights as if the Calculation and Exchange Rate Agent
were not the Calculation and Exchange Rate Agent, and may engage in, or have
an interest in, any financial or other transaction with the Company as if the
Calculation and Exchange Rate Agent were not the Calculation and Exchange
Rate Agent.
SECTION 7. DUTIES OF CALCULATION AND EXCHANGE RATE AGENT. The
Calculation and Exchange Rate Agent shall be obligated only to perform such
duties as are specifically set forth herein and no other duties or
obligations on the part of the Calculation and Exchange Rate Agent, in its
capacity as such, shall be implied by this Agreement.
SECTION 8. TERMINATION, RESIGNATION OR REMOVAL OF CALCULATION AND
EXCHANGE RATE AGENT. The Calculation and Exchange Rate Agent may at any time
terminate this Agreement by giving no less than 90 days' written notice to
the Company unless the Company consents in writing to a shorter time. Upon
receipt of notice of termination from the Calculation and Exchange Rate
Agent, the Company agrees promptly to appoint a successor Calculation and
Exchange Rate Agent. The Company may terminate this Agreement at any time by
giving written notice to the Calculation and Exchange Rate Agent and
specifying the date when the termination shall become effective; provided,
however, that no termination by the Calculation and Exchange Rate Agent or by
the Company shall become effective prior to the date of the appointment by
the Company, as provided in Section 9 hereof, of a successor Calculation and
Exchange Rate Agent and the acceptance of such appointment by such successor
Calculation and Exchange Rate Agent. Upon termination by either party
pursuant to the provisions of this Section, the Calculation and Exchange Rate
Agent shall be entitled to the payment of any compensation owed to it by the
Company hereunder and to the reimbursement of all reasonable out-of-pocket
expenses, disbursements and advances incurred or made by the Calculation and
Exchange Rate Agent in connection with the services rendered by it hereunder,
as provided by
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Section 4 hereof, and the provisions of Section 10 shall remain in effect
following such termination.
SECTION 9. APPOINTMENT OF SUCCESSOR CALCULATION AND EXCHANGE RATE
AGENT. Any successor Calculation and Exchange Rate Agent appointed by the
Company following termination of this Agreement pursuant to the provisions of
Section 8 hereof shall execute and deliver to the Calculation and Exchange
Rate Agent and to the Company an instrument accepting such appointment, and
thereupon such successor Calculation and Exchange Rate Agent shall, without
any further act or instrument become vested with all the rights, immunities,
duties and obligations of the Calculation and Exchange Rate Agent, with like
effect as if originally named as Calculation and Exchange Rate Agent
hereunder, and the Calculation and Exchange Rate Agent shall thereupon be
obligated to transfer and deliver, and such successor Calculation and
Exchange Rate Agent shall be entitled to receive and accept, copies of any
available records maintained by the Calculation and Exchange Rate Agent in
connection with the performance of its obligations hereunder.
SECTION 10. INDEMNIFICATION. The Company shall indemnify and hold
harmless the Calculation and Exchange Rate Agent, its officers and employees
from and against all actions, claims, damages, liabilities, losses and
expenses (including reasonable legal fees and expenses) relating to or
arising out of actions or omissions in any capacity hereunder, except
actions, claims, damages, liabilities, losses and expenses caused by the
gross negligence or willful misconduct of the Calculation and Exchange Rate
Agent, its officers and employees.
SECTION 11. MERGER, CONSOLIDATION OR SALE OF BUSINESS BY CALCULATION AND
EXCHANGE RATE AGENT. Any corporation into which the Calculation and Exchange
Rate Agent may be merged, converted, or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the
Calculation and Exchange Rate Agent may be a party, or any corporation to
which the Calculation and Exchange Rate Agent may sell or otherwise transfer
all or substantially all of its corporate trust business, shall, to the
extent permitted by applicable law, become the Calculation and Exchange Rate
Agent under this Agreement without the execution of any paper or any further
act by the parties hereto.
SECTION 12. NOTICES. Any notice or other communication given hereunder
shall be delivered in person, sent by letter, telecopy or telex or
communicated by telephone (subject, in the case of communication by
telephone, to written confirmation dispatched within 24 hours) to the
addresses given below or such other address as the party to receive such
notice may have previously specified:
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To the Company:
CenterPoint Properties Trust
0000 Xxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Telecopy: (000) 000-0000
To the Calculation and Exchange Rate Agent:
U.S. Bank Trust National Association
One Illinois Center
000 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxx
Telecopy: (000) 000-0000
To the Trustee:
U.S. Bank Trust National Association
One Illinois Center
000 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxx
Telecopy: (000) 000-0000
Any notice hereunder given by letter, telecopy or telex shall be deemed to
have been received when it would have been received in the ordinary course of
post or transmission, as the case may be.
SECTION 13. BENEFIT OF AGREEMENT. Except as provided herein, this
Agreement is solely for the benefit of the parties hereto and their
successors and assigns and no other person shall acquire or have any rights
under or by virtue hereof. The terms "successors" and "assigns" shall not
include any purchasers of any Notes merely because of such purchase.
SECTION 14. GOVERNING LAW. This agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 15. This Agreement may be executed by one or more parties to
this Agreement on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
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IN WITNESS HEREOF, this Agreement has been entered into the day and year
first above written.
CENTERPOINT PROPERTIES TRUST
By:
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Its:
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U.S. BANK TRUST NATIONAL ASSOCIATION
By:
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Its:
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