CENTERPOINT PROPERTIES TRUST
DOCS-SM- FINANCING PROGRAM
750,000 SHARES
(COMMON SHARES OF BENEFICIAL INTEREST, $.001 PAR VALUE)
SALES AGENCY AGREEMENT
JULY 20, 1998
DOCS-SM- is a service xxxx of Xxxxxxx Xxxxxxx Securities Corporation.
THIS SALES AGENCY AGREEMENT (the "Agreement") dated July 20, 1998
between Xxxxxxx Xxxxxxx Securities Corporation, a corporation having its
principal office at Xxx Xxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 (the
"Agent"), and CenterPoint Properties Trust, a real estate investment trust
organized and existing under the laws of the State of Maryland (the
"Company").
WHEREAS, the Company desires to issue and sell through the Agent up to
750,000 shares (the "Maximum Amount") of common shares of beneficial
interest, par value $.001 per share (the "Stock"), on the terms set forth in
Article II hereof.
IN CONSIDERATION of the mutual covenants contained in this Agreement,
the Company and the Agent agree as follows:
ARTICLE I.
REPRESENTATIONS AND WARRANTIES
1.1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to, and agrees with, the Agent that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and the rules and regulations
thereunder ("Rules and Regulations"). A registration statement on Form S-3
(Registration No. 333-18235) with respect to, among other securities, the
Stock, including a form of prospectus, has been prepared by the Company in
conformity with the requirements of the Act and the Rules and Regulations and
filed with the Securities and Exchange Commission (the "Commission") and has
become effective. Such registration statement and prospectus may have been
amended or supplemented prior to the date of this Agreement. Any such
amendment or supplement was so prepared and filed, and any such amendment or
supplement filed after the effective date of such registration statement has
become effective. No stop order suspending the effectiveness of the
registration statement has been issued, and no proceeding for that purpose
has been instituted or threatened by the Commission. Copies of such
registration statement and prospectus and any such amendment or supplement
that was filed with the Commission on or prior to the date of this Agreement
have been delivered to the Agent. Such registration statement, as it may
have heretofore been amended, is referred to herein as the "Registration
Statement," and the final form of prospectus included in the Registration
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Statement, as amended or supplemented from time to time, is referred to
herein as the "Prospectus." Any reference herein to the Registration
Statement, the Prospectus, or any amendment or supplement thereto shall be
deemed to refer to and include the documents incorporated (or deemed to be
incorporated) by reference therein, and any reference herein to the terms
"amend," "amendment" or "supplement" with respect to the Registration
Statement or Prospectus shall be deemed to refer to and include the filing
after the execution hereof of any document with the Commission deemed to be
incorporated by reference therein. The Company may sell up to approximately
$13 million of securities in at the market offerings pursuant to the
Registration Statement. To the extent the Company desires to sell more than
approximately $13 million of securities pursuant to this Agreement, the
Company shall file a new registration statement with respect to such shares
and shall cause such registration statement to become effective pursuant to
Rule 462(b) of the Act. After the effectiveness of said registration
statement, all references to "Registration Statement" included in this
Agreement shall be deemed to include such new registration statement.
(b) Each part of the Registration Statement, when such part became or
becomes effective, and the Prospectus and any amendment or supplement
thereto, on the date of filing thereof with the Commission and at each
Closing Date (as hereinafter defined), conformed or will conform in all
material respects with the requirements of the Act and the Rules and
Regulations; each part of the Registration Statement, when such part became
or becomes effective, did not or will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and the
Prospectus and any amendment or supplement thereto, on the date of filing
thereof with the Commission and at each Closing Date, did not or will not
include an untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; except that the
foregoing shall not apply to statements in or omissions from any such
document in reliance upon, and in conformity with, written information
furnished to the Company by or on behalf of the Agent, specifically for use
in the Registration Statement, the Prospectus or any amendment or supplement
thereto.
(c) The documents incorporated by reference in the Registration
Statement or the Prospectus, or any amendment or supplement thereto, when
they became or become effective under the Act or were or are filed with the
Commission under the Securities Exchange Act of 1934, as amended ("Exchange
Act"), as the case may be, conformed or will conform in all material respects
with the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder.
(d) The financial statements of the Company and its subsidiaries,
together with the related notes and schedules, set forth or incorporated by
reference in the Registration Statement
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and Prospectus fairly present the financial condition and the results of
operations and cash flows of the Company and its subsidiaries as of the dates
indicated or for the periods therein specified and were prepared in
conformity with generally accepted accounting principles consistently applied
throughout the periods involved (except as otherwise stated therein).
(e) 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 its
formation with power and authority to own, lease and operate its properties
and to conduct its business as described in the Registration Statement and
Prospectus; and the Company is duly qualified to transact business and is in
good standing in each jurisdiction in which the laws of such jurisdiction
require such qualification, except where the failure to so qualify and be in
good standing, considering all such cases in the aggregate, would not have a
material adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(f) Each significant subsidiary (as defined in Section 1-02 of
Regulation S-X) of the Company has been duly incorporated and is validly
existing as a real estate investment trust, corporation, general or limited
partnership or other legal entity, as the case may be, in good standing under
the laws of the jurisdiction of its incorporation, has power (corporate or
other) and authority to own, lease and operate its properties and conduct its
business as described in the Registration Statement and Prospectus and is
duly qualified to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except where
the failure to so qualify and be in good standing would not have a material
adverse effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise; and all of the issued and outstanding capital
stock (or other equity interests) of each subsidiary has been duly authorized
and validly issued, is fully paid and nonassessable and (except as otherwise
stated in the Registration Statement) is majority-owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
(g) The outstanding common shares of beneficial interest of the Company
and the Stock have been duly authorized and are, or when issued as
contemplated hereby will be, validly issued, fully paid and nonassessable and
conform, or when so issued will conform, to the description thereof in the
Prospectus. The shareholders of the Company have no preemptive rights with
respect to the Stock.
(h) Except as contemplated in the Prospectus, subsequent to the
respective dates as of which information is given in the Registration
Statement and the Prospectus, neither the Company
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nor any of its subsidiaries has incurred any liabilities or obligations,
direct or contingent, or entered into any transactions, not in the ordinary
course of business, that are material to the Company and its subsidiaries
considered as a whole, and there has not been any material change in the
capital stock, short-term debt or long-term debt of the Company and its
subsidiaries, or any material change, or any development involving a
prospective material change, in the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(i) Except as set forth in the Prospectus, there is not pending or, to
the knowledge of the Company, threatened any action, suit or proceeding to
which the Company or any of its subsidiaries is a party, before or by any
court or governmental agency or body, that could reasonably be expected to
result in any material adverse change in the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, or that could
reasonably be expected to materially and adversely affect the properties or
assets thereof considered as a whole.
(j) There are no contracts or documents of the Company or any of its
subsidiaries that are required to be filed as exhibits to the Registration
Statement or to any of the documents incorporated by reference therein by the
Act or the Exchange Act or by the rules and regulations of the Commission
thereunder that have not been so filed.
(k) All necessary action has been duly and validly taken by the Company
to authorize the execution, delivery and performance of this Agreement. This
Agreement has been duly and validly authorized, executed and delivered by the
Company and constitutes the legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, except
as the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles.
(l) The performance of this Agreement and the consummation of the
transactions contemplated herein will not result in a breach or violation of
any of the terms and provisions of, or constitute a default under with giving
of notice or lapse of time or both, any agreement or instrument to which the
Company or any of its subsidiaries is a party or by which it is bound or to
which any of the property of the Company or any of its subsidiaries is
subject except for such breaches or defaults that would not in the aggregate
have a material adverse effect on the Company's ability to perform its
obligations under this Agreement or on the condition, financial or otherwise,
or the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as a whole, nor will such action result in the
violation of the Company's charter or by-laws, or any statute or any order,
rule or regulation of any court or governmental
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agency or body having jurisdiction over the Company or any of its
subsidiaries or any of its properties; no consent, approval, authorization or
order of, or filing with, any court or governmental agency or body is
required for the consummation by the Company of the transactions contemplated
by this Agreement, except such as may be required by state securities or blue
sky laws.
(m) Each of the Company and its subsidiaries has (i) good and
indefeasible title to all of the properties and assets described in the
Prospectus as owned by it, free and clear of all liens, charges, encumbrances
or restrictions, except such as are described in the Prospectus or are not
material to the business, condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, (ii) peaceful and undisturbed possession under
all material leases to which it is party as lessee, (iii) all governmental or
regulatory licenses, certificates, permits, authorizations, approvals,
franchises or other rights necessary to engage in the business currently
conducted by it, except such as are not material to the business, condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
(iv) no reason to believe that any governmental body or agency is considering
limiting, suspending or revoking any such license, certificate, permit,
authorization, approval, franchise or right and (v) not received any notice
of and has no reason to believe that any governmental body or agency is
considering enacting, amending or repealing any statute, law, ordinance or
regulation required to be described in the Registration Statement and
Prospectus that is not so described as required. All material leases to
which the Company or any of its subsidiaries is a party are valid and binding
and no default has occurred and is continuing thereunder, and, to the best
knowledge of the Company, no material defaults by the landlord are existing
under any such leases.
(n) Each of the Company and its subsidiaries owns or possesses all of
the patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable proprietary
or confidential information, systems or procedures), trademarks, service
marks and trade names presently employed by them in connection with the
business now operated by them, and neither the Company nor any of its
subsidiaries has received any notice of infringement of or conflict with
asserted rights of others with respect to any of the foregoing which, if
singly or in the aggregate, if the subject of an unfavorable decision, ruling
or finding, would result in any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise.
(o) The Company and its subsidiaries have not violated and, to its
knowledge, are in compliance in all material respects with all material laws,
statutes, ordinances, regulations, rules
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and orders of any foreign, federal, state or local government and any other
governmental department or agency, and any judgment, decision, decree or
order of any court or governmental agency, department or authority,
including, without limitation, environmental laws. Neither the Company nor
any of its subsidiaries has received any notice to the effect that, or
otherwise been advised that, it is not in compliance with any such statutes,
regulations, rules, judgments, decrees, orders, ordinances or other laws, and
the Company is not aware of any existing circumstances which are likely to
result in material violations of any of the foregoing.
ARTICLE II.
SALE AND DELIVERY OF SECURITIES
2.1. SALE AND DELIVERY OF SECURITIES. On the basis of the
representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company agrees to issue and
sell through the Agent, subject to Section 3.1(h), as exclusive Agent, and
the Agent agrees to sell, as agent for the Company, on a best efforts basis,
up to the Maximum Amount of Stock during a maximum of 52 Sales Periods (as
hereinafter defined) on the terms set forth herein; provided, however, that
the Company shall not be obligated to issue and sell, and the Agent shall not
be obligated to use its best efforts to sell, Stock if the Stock is then
trading on the Trading Market (as defined below) at a price (after deduction
of the Agent's Compensation (as defined below)) lower than the Minimum Price
(as defined below). "Minimum Price" means the price per share determined by
the Company from time to time in its sole discretion and which is
communicated to the Agent by telephone and confirmed promptly by telecopy,
each such price to become effective upon receipt of such notice by the Agent
and to apply to sales made thereafter.
The Company shall open and maintain a trading account (the "Trading
Account") at a clearing agent designated by the Agent (the "Clearing Agent")
to facilitate the transactions contemplated by this Agreement. The Agent
shall effect any sales of the Stock from such account. The Company shall
deliver (or cause its transfer agent to deliver) shares of the Stock to such
account to settle any such sales. Proceeds from such sales shall be
collected in the Trading Account.
The Stock, up to the Maximum Amount, is to be sold during one or more
periods each consisting of five consecutive calendar days, commencing on
Monday and ending on Friday (each a "Sales Period"), or such lesser number of
days as shall be agreed to by the Company and the Agent. Subject to the
terms and conditions hereof, the Agent shall use its best efforts to (i) sell
during each such Sales Period that number of shares as determined by the
Company from time to time in its sole discretion and which is communicated to
the Agent by telephone and confirmed
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promptly by telecopy, each such amount to become effective upon receipt of
such notice by the Agent and to apply to Sales Periods thereafter (the "Sales
Period Shares") and (ii) sell the entire Maximum Amount during the 52 Sales
Periods. The Agent shall sell the shares of Stock only by means of ordinary
brokers' transactions on the Trading Market (as hereinafter defined) for the
Stock at market prices prevailing at the time of sale. The Trading Market
shall be defined as (i) the New York Stock Exchange, Inc., the American Stock
Exchange or any national securities exchange on which the Stock is admitted
for trading or (ii) the facilities of the Nasdaq Stock Market ("Nasdaq").
The Company or the Agent may, upon notice to the other party hereto by
telephone (confirmed promptly by telecopy), at any time and from time to
time, suspend the offering of Stock hereunder until the Company notifies the
Agent in writing to resume sales under this Agreement; provided, however,
that such suspension or termination shall not affect or impair the parties'
respective obligations with respect to shares of Stock sold hereunder prior
to the giving of such notice. The Agent shall not solicit or arrange for the
solicitation of customers' orders in anticipation of or in connection with
such transactions, nor shall it sell short as principal shares of Stock
except in connection with customary market making activities in the Company's
outstanding securities.
The net proceeds (the "Net Proceeds") to the Company for the Sales
Period Shares sold by the Agent during a Sales Period will equal .98 times
the Sales Proceeds. Sales Proceeds shall mean, for a given Sales Period, the
aggregate gross sales proceeds for the sale of Sales Period Shares, minus any
fees imposed by any governmental or self-regulatory organization with respect
to such sales. The compensation payable by the Company to the Agent with
respect to the sale of Sales Period Shares sold hereunder (the "Agent's
Compensation") shall equal .02 times the Sales Proceeds.
The Agent shall provide written confirmation to the Company on the
business day following the final day of each Sales Period during which sales
of Sales Period Shares are made setting forth, with regard to such Sales
Period, the dates included in the Sales Period, the number of Sales Period
Shares sold, the gross proceeds from the sale of such shares, any fees
imposed by any governmental or self-regulatory organization, the Sales
Proceeds, the Agent's Compensation and the Net Proceeds to the Company.
The Company shall effect the delivery of the applicable number of shares
of Stock to the Clearing Agent's account at The Depository Trust Corporation
on or before the settlement date of each sale hereunder. Proceeds from the
sale of Stock shall be available in the Trading Account on the third business
day following each sale of Stock hereunder or such later date on which the
Clearing Agent actually effects the settlement of such sale (each a "Closing
Date"). The Company shall pay the Agent's compensation, in immediately
available funds, or the Agent may direct the Clearing Agent to withhold such
funds from the Clearing Agent's account and pay the same to the Agent, on
each Closing Date.
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On each Closing Date, the Company shall be deemed to have affirmed each
representation, warranty, covenant and other agreement contained in the
Agreement. Any obligation of the Agent to use its best efforts to sell the
Stock shall be subject to the continuing accuracy of the representations and
warranties of the Company herein, to the performance by the Company of its
obligations hereunder and to the continuing satisfaction of the additional
conditions specified in Article IV of this Agreement.
ARTICLE III.
COVENANTS OF THE COMPANY
3.1. COVENANTS OF THE COMPANY. The Company covenants and agrees with
the Agent and the Company that:
(a) During the period in which a prospectus relating to the Stock is
required to be delivered under the Act, the Company will notify the Agent
promptly of the time when any subsequent amendment to the Registration
Statement has become effective or any subsequent supplement to the Prospectus
has been filed and of any request by the Commission for any amendment or
supplement to the Registration Statement or Prospectus or for additional
information; it will prepare and file with the Commission, promptly upon the
Agent's request, any amendments or supplements to the Registration Statement
or Prospectus that, in the Agent's reasonable opinion, may be necessary or
advisable in connection with the distribution of the Stock by the Agent; the
Company will not file any amendment or supplement to the Registration
Statement or Prospectus (other than any prospectus supplement relating to the
offering of other securities (including, without limitation, common stock not
included in an Delayed Offering of Equity Securities, as defined below)
registered under the Registration Statement) unless a copy thereof has been
submitted to the Agent a reasonable period of time before the filing (which
in the case of a prospectus supplement filed under Rule 424(b) may be the
date of filing where necessary) and the Agent has not reasonably objected
thereto; and the Company will cause each amendment or supplement to the
Prospectus to be filed with the Commission as required pursuant to the
applicable paragraph of Rule 424(b) of the Rules and Regulations or, in the
case of any document to be incorporated therein by reference, to be filed
with the Commission as required pursuant to the Exchange Act, within the time
period prescribed.
(b) The Company will advise the Agent, promptly after it shall receive
notice or obtain knowledge thereof, of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement, of the
suspension of the qualification of the Stock for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceeding for any
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such purpose; and it will promptly use its best efforts to prevent the
issuance of any stop order or to obtain its withdrawal if such a stop order
should be issued.
(c) Within the time during which a prospectus relating to the Stock is
required to be delivered under the Act, the Company will comply as far as it
is able with all requirements imposed upon it by the Act and by the Rules and
Regulations, as from time to time in force, so far as necessary to permit the
continuance of sales of or dealings in the Stock as contemplated by the
provisions hereof and the Prospectus. If during such period any event occurs
as a result of which the Prospectus as then amended or supplemented or any
document that is deemed to be incorporated by reference in the Prospectus
would include an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances then existing, not misleading, or if during such period it is
necessary to amend or supplement the Registration Statement or Prospectus or
any document that is deemed to be incorporated by reference in the
Registration Statement or Prospectus to comply with the Act, the Company will
promptly notify the Agent to suspend the offering of Stock during such period
and the Company will amend or supplement the Registration Statement or
Prospectus or any document that is deemed to be incorporated by reference in
the Registration Statement or Prospectus (at the expense of the Company) so
as to correct such statement or omission or effect such compliance.
(d) The Company will use its best efforts to qualify the Stock for sale
under the securities laws of such jurisdictions as the Agent designates and
to continue such qualifications in effect so long as required for the
distribution of the Stock, except that the Company shall not be required in
connection therewith to qualify as a foreign corporation or to execute a
general consent to service of process in any jurisdiction.
(e) The Company will furnish to the Agent and its counsel (at the
expense of the Company) copies of the Registration Statement, the Prospectus
(including all documents incorporated by reference therein) and all
amendments and supplements to the Registration Statement or Prospectus that
are filed with the Commission during the period in which a prospectus
relating to the Stock is required to be delivered under the Act, in each case
as soon as available and in such quantities as the Agent may from time to
time reasonably request and, in the case when the Trading Market is a
national securities exchange, the Company will also furnish copies of the
Prospectus to such exchange in accordance with Rule 153 of the Rules and
Regulations.
(f) The Company will make generally available to its security holders
as soon as practicable, but in any event not later than 15 months after the
end of the Company's current fiscal quarter, an earnings statement (which
need not be audited) covering a 12-month period that satisfies the provisions
of Section 11(a) of the Act and Rule 158 of the Rules and Regulations.
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(g) The Company, whether or not the transactions contemplated hereunder
are consummated or this Agreement is terminated, will pay all of its expenses
incident to the performance of its obligations hereunder (including, but not
limited to, any transaction fees imposed by any governmental or
self-regulatory organization with respect to transactions contemplated by
this Agreement and any blue sky fees) and will pay the expenses of printing
all documents relating to the offering.
(h) Unless this Agreement is terminated by the Agent or is terminated
by the Company for "cause" (as hereinafter defined), the Company agrees not
to engage in, or enter into any agreement with any other party to act as
underwriter for, any offering of securities involving a program similar, as
reasonably determined by the Agent, to the Agent's DOCS-SM- transaction
contemplated by this Agreement (a "Delayed Offering of Equity Securities"),
other than a dividend reinvestment or stock purchase plan, until the earlier
date to occur (the "Non-Exclusivity Date") of (i) the sale by the Agent of an
aggregate of 375,000 shares of Stock under this Agreement and (ii) the date
one year from the date of this Agreement. If, during the two-year period
following the Non-Exclusivity Date, this Agreement is terminated by the
Company without cause or terminates pursuant to Section 7.2, the Company
desires to engage another party with respect to a Delayed Offering of Equity
Securities, the Company shall deliver to the Agent a written summary of the
material terms and conditions of such Delayed Offering of Equity Securities.
If, within 15 days of delivery of such written summary, the Agent modifies
its program such that, in the reasonable determination of the Company, the
Agent's program is at least as beneficial to the Company as is the other
Delayed Offering of Equity Securities, then the Company shall maintain its
exclusive arrangement with the Agent (subject to submissions, from time to
time, of other Delayed Offering of Equity Securities and the Company's and
the Agent's respective rights to terminate this Agreement pursuant to Article
VII hereof); if the Agent does not so modify its program, the Company shall
be able to engage such other party in connection with such Delayed Offering
of Equity Securities.
(i) The Company will apply the net proceeds from the sale of the Stock
as set forth in the Prospectus.
(j) The Company will not, directly or indirectly, offer or sell any
common shares of beneficial interest (other than the Stock) or securities
convertible into or exchangeable for, or any rights to purchase or acquire,
common shares of beneficial interest during the period from the date of this
Agreement through the final Closing Date for the sale of Stock hereunder
without (a) giving the Agent at least three business days' prior written
notice specifying the nature of the proposed sale and the date of such
proposed sale and (b) suspending activity under this program for such period
of time as may be determined by the Company in its sole discretion; provided,
however, that no such notice and suspension shall be required in connection
with the Company's issuance or sale of (i) common shares of beneficial
interest pursuant to any employee or director stock
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option or benefits plan, stock ownership plan, dividend reinvestment or stock
purchase plan now in effect as such plans may be amended from time to time,
and (ii) common shares of beneficial interest issuable upon conversion of
securities or the exercise of warrants, options or other rights in effect or
outstanding on the date hereof.
(k) The Company will, at any time during the term of this Agreement, as
supplemented from time to time, advise the Agent immediately after it shall
have received notice or obtain knowledge thereof, of any information or fact
that would alter or affect any opinion, certificate, letter and other
document provided to the Agent pursuant to Article IV herein.
(l) Each time that the Registration Statement or the Prospectus shall
be amended or supplemented, the Company shall furnish or cause to be
furnished to the Agent forthwith a certificate dated the date of filing with
the Commission of such supplement or the date of effectiveness of such
amendment, as the case may be, in form satisfactory to the Agent to the
effect that the statements contained in the certificate referred to in
Section 4.1(f) hereof which were last furnished to the Agent are true and
correct at the time of such amendment or supplement as though made at and as
of such time (except that such statements shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to such
time) or, in lieu of such certificate, a certificate of the same tenor as the
certificate referred to in said Section 4.1(f), modified as necessary to
relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such certificate.
(m) Each time that the Registration Statement or the Prospectus is
amended or supplemented, the Company shall furnish or cause to be furnished
forthwith to the Agent and to counsel to the Agent (1) a written opinion of
Ungaretti & Xxxxxx, counsel to the Company ("Company Counsel"), or other
counsel satisfactory to the Agent, dated the date of filing with the
Commission of such supplement or the date of effectiveness of such amendment,
as the case may be, in form and substance satisfactory to the Agent, of the
same tenor as the opinion referred to in Section 4.1(d) hereof, but modified
as necessary to relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of delivery of such opinion.
(n) Each time that the Registration Statement or the Prospectus shall
be amended or supplemented to include additional amended financial
information or there is filed with the Commission any document incorporated
by reference into the Prospectus which contains additional amended financial
information, the Company shall cause Coopers & Xxxxxxx, or other independent
accountants satisfactory to the Agent, forthwith to furnish the Agent a
letter, dated the date of effectiveness of such amendment, or the date of
filing of such supplement or other document with the Commission, as the case
may be, in form satisfactory to the Agent, of the same tenor as the letter
referred to in Section 4.1(e) hereof but modified to relate to the
Registration Statement and the Prospectus, as amended and supplemented to the
date of such letter.
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(o) The Company shall use its best efforts to list, subject to notice
of issuance, the Stock on the applicable Trading Market.
ARTICLE IV.
CONDITIONS OF THE AGENT'S OBLIGATIONS
4.1. CONDITIONS OF AGENT'S OBLIGATIONS. The obligations of the Agent to
sell the Stock as provided herein shall be subject to the accuracy, as of the
date hereof, and as of each Closing Date for any Sales Period contemplated
under this Agreement, of the representations and warranties of the Company
herein, to the performance by the Company of its obligations hereunder and to
the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose shall
have been instituted or, to the knowledge of the Company or the Agent,
threatened by the Commission, and any request of the Commission for
additional information (to be included in the Registration Statement or the
Prospectus or otherwise) shall have been complied with to the Agent's
satisfaction.
(b) The Agent shall not have advised the Company that the Registration
Statement or Prospectus, or any amendment or supplement thereto, contains an
untrue statement of fact that in the Agent's reasonable opinion is material,
or omits to state a fact that in the Agent's reasonable opinion is material
and is required to be stated therein or is necessary to make the statements
therein not misleading.
(c) Except as contemplated in the Prospectus, subsequent to the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there shall not have been any material change,
on a consolidated basis, in the capital stock of the Company and its
subsidiaries, or any material adverse change, or any development that may
reasonably be expected to cause a material adverse change, in the condition
(financial or other), business, prospects, net worth or results of operations
of the Company and its subsidiaries, or any change in the rating assigned to
any securities of the Company.
(d) The Agent shall have received at the date of the commencement of
the first Sales Period hereunder (the "Commencement Date") and at every other
date specified in Section 3.1(m) hereof, opinions of Company Counsel, dated
as of the Commencement Date and dated as of such other date, respectively, to
the effect that:
12
(i) The Company has been duly formed and is validly existing as a
real estate investment trust in good standing under the laws of its
jurisdiction of formation, has full power and authority to conduct its
business as described in the Registration Statement and Prospectus and
is duly qualified to do business in each jurisdiction set forth on a
schedule thereto; to their knowledge, such jurisdictions are the only
jurisdictions in which the Company's ownership or leasing of real
property or conduct of its business requires such qualification;
(ii) Each subsidiary of the Company has been duly incorporated or
formed and is validly existing as a corporation, or partnership or real
estate investment trust, as the case may be) in good standing under the
laws of the jurisdiction of its incorporation or formation, has power
and authority to own, lease and operate its properties and conduct its
business as described in the Registration Statement and Prospectus, and
is duly qualified to transact business and is in good standing in each
jurisdiction set forth on a schedule thereto; to their knowledge, such
jurisdictions are the only jurisdictions in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business; all of the issued outstanding capital stock (or
other equity interests) of each such subsidiary has been duly authorized
and validly issued, is fully paid and nonassessable, and free and clear
of any mortgage, pledge, lien, encumbrance, claim or equity;
(iii) The shares of Stock have been duly and validly authorized,
and, when issued and delivered to and paid for by the purchasers thereof
pursuant to this Agreement, will be fully paid and nonassessable and
conform to the description thereof in the Prospectus; and the
shareholders of the Company have no preemptive rights with respect to
the Stock; all corporate action required to be taken for the
authorization, issue and sale of the Stock has been validly and
sufficiently taken; and the shares of Stock are the subject of an
effective registration statement permitting their sale in the manner
contemplated by this Agreement;
(iv) The Registration Statement has become effective under the Act;
(if applicable, the filing of the Prospectus Supplements pursuant to
Rule 424(b) have been made in the manner and within the time period
required by Rule 424(b)); to the knowledge of such counsel no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceeding for that purpose has been instituted or
threatened by the Commission;
(v) The Registration Statement, when it became effective, and the
Prospectus and any amendment or supplement thereto, on the date of
filing thereof with the Commission (and at each Closing Date on or prior
to the date of the opinion), complied as to form in
13
all material respects with the requirements of the Act and the Rules and
Regulations; and the documents incorporated by reference in the
Registration Statement or Prospectus or any amendment or supplement
thereto, when filed with the Commission under the Exchange Act, complied
as to form in all material respects with the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder;
(vi) The description in the Registration Statement and Prospectus
of statutes, legal and governmental proceedings, contracts and other
documents are accurate in all material respects and fairly present the
information required to be shown; and such counsel do not know of any
statutes or legal or governmental proceedings required to be described
in the Prospectus that are not described as required, or of any
contracts or documents of a character required to be described in the
Registration Statement or Prospectus (or required to be filed under the
Exchange Act if upon such filing they would be incorporated by reference
therein) or to be filed as exhibits to the Registration Statement that
are not described and filed as required;
(vii) This Agreement has been duly authorized, executed and delivered
by the Company;
(viii) The execution, delivery and performance of this Agreement by
the Company and the consummation of the transactions contemplated herein
by the Company do not and will not result in a breach or violation of
any of the terms and provisions of, or constitute a default under, any
agreement or instrument known to such counsel to which the Company or
any of its subsidiaries is a party or by which it is bound or to which
any of the property of the Company or any of its subsidiaries is subject
except for such breaches or defaults that would not in the aggregate
have a material adverse effect on the Company's ability to perform its
obligations under this Agreement or on the condition, financial or
otherwise, or the earnings business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, nor will such
action result in the violation of the Company's charter or by-laws, or
any statute or any order, rule or regulation known to such counsel of
any court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of its properties; and no
consent, approval, authorization or order of, or filing with, any court
or governmental agency or body is required for the consummation of the
transactions contemplated by this Agreement in connection with the
issuance or sale of the Stock by the Company, except such as have been
obtained under the Act and such as may be required under state
securities or blue sky laws in connection with the sale and distribution
of the Stock by the Agent;
(ix) Except for permits and similar authorizations required under
the securities or blue sky laws of certain states, no consent, waiver,
approval, authorization or other
14
order of any regulatory body, administrative agency or other
governmental body is legally required for the sale of the Stock by the
Agent as contemplated hereby and by the Prospectus; and
(x) Based upon review of such documents, certificates and records
as such counsel has deemed necessary to express its opinion, upon its
discussions with management of the Company, independent accountants for
the Company and with certain shareholders of the Company, and based upon
the facts set forth in the Registration Statement, certain assumptions
and certain representations made to it by the Company's management and
by certain shareholders, such counsel is of the view that, as of the
date of its opinion, the Company's form of organization and its share
ownership is such as to enable the Company to meet the requirements of
the Code for qualification as a real estate investment trust thereunder
and that the Company's income, assets and method of operations have
allowed it to qualify as a real estate investment trust for its taxable
year ended December 31, 1994 and all years thereafter, and its currently
contemplated future assets, income and method of operations should put
it in a position to qualify to be treated as a real estate investment
trust for the calendar year 1998;
In addition, such counsel shall state that such counsel has no reason to
believe that either the Registration Statement, at the time it (including
each Post-Effective Amendment thereto) became effective, contained an untrue
statement of a material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein not misleading
or that the Prospectus and any amendments or supplements thereto, on the date
of filing thereof with the Commission and at the Commencement Date and at
each Closing Date on or prior to the date of the opinion, included an untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading; it being understood that such counsel need
express no opinion as to the financial statements or other financial and
statistical data included in any of the documents mentioned in this paragraph.
(e) At the Commencement Date and at such other dates specified in
Section 3.1(n) hereof, the Agent shall have received a letter from Coopers &
Xxxxxxx, independent public accountants for the Company, or other independent
accountants satisfactory to the Agent, dated the date of delivery thereof,
substantially in the form attached hereto as Exhibit I and otherwise in form
and substance satisfactory to Agent.
(f) The Agent shall have received from the Company a certificate, or
certificates, signed by the Chairman of the Board, the President or a Vice
President and by the principal financial or accounting officer of the
Company, dated as of the Commencement Date and dated as of the first business
day of each calendar month thereafter (each a "Certificate Date"), to the
effect that, to the best of their knowledge based upon reasonable
investigation:
15
(i) The representations and warranties of the Company in this
Agreement are true and correct, as if made at and as of the Commencement
Date or the Certificate Date (as the case may be), and the Company has
complied with all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the Commencement Date
and each such Certificate Date (as the case may be);
(ii) No stop order suspending the effectiveness of the Registration
Statement has been issued, and no proceeding for that purpose has been
instituted or, to the knowledge of such officer after due inquiry, is
threatened, by the Commission;
(iii) Since the date of this Agreement there has occurred no event
required to be set forth in an amendment or supplement to the
Registration Statement or Prospectus that has not been so set forth and
there has been no document required to be filed under the Exchange Act
and the rules and regulations of the Commission thereunder that upon
such filing would be deemed to be incorporated by reference in the
Prospectus that has not been so filed; and
(iv) Since the date of this Agreement, there has not been any
material adverse change, on a consolidated basis, in the business,
financial condition or results of operations of the Company and its
subsidiaries considered as one enterprise which has not been described
in an amendment or supplement to the Registration Statement or
Prospectus (directly or by incorporation).
In addition, on each Certificate Date the certificate shall also
reconfirm that the shares of Stock sold during each Sales Period in the
immediately preceding month were duly and validly authorized by the
Company and that all corporate action required to be taken for the
authorization, issuance and sale of such Stock had been validly and
sufficiently taken.
(g) At the Commencement Date and on each Closing Date, the Company
shall have furnished to the Agent such appropriate further information,
certificates and documents as the Agent may reasonably request.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are satisfactory in form
and substance to the Agent. The Company will furnish the Agent with such
conformed copies of such opinions, certificates, letters and other documents
as the Agent shall reasonably request.
16
ARTICLE V.
INDEMNIFICATION AND CONTRIBUTION
5.1.(a) The Company agrees to indemnify and hold harmless the Agent and
each person, if any, who controls the Agent within the meaning of Section 15
of the Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out
of any untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected
with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 5(c) hereof, the reasonable fees and
disbursements of counsel chosen by the Agent), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by the Agent expressly for use in the Registration Statement (or any
amendment thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
17
(b) The Agent agrees to indemnify and hold harmless the Company and its
directors and each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Article, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements
or omissions, made in the Registration Statement (or any amendments thereto)
or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by the Agent expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(c) Any indemnified party that proposes to assert the right to be
indemnified under this Article VI will, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim is
to be made against an indemnifying party or parties under this Article V,
notify each such indemnifying party of the commencement of such action,
enclosing a copy of all papers served, but the omission so to notify such
indemnifying party will not relieve the indemnifying party from (i) any
liability that it might have to any indemnified party otherwise than under
this Article V and (ii) any liability that it may have to any indemnified
party under the foregoing provision of this Article V unless, and only to the
extent that, such omission results in the forfeiture of substantive rights or
defenses by the indemnifying party. If any such action is brought against
any indemnified party and it notifies the indemnifying party of its
commencement, the indemnifying party will be entitled to participate in and,
to the extent that it elects by delivering written notice to the indemnified
party promptly after receiving notice of the commencement of the action from
the indemnified party, jointly with any other indemnifying party similarly
notified, to assume the defense of the action, with counsel satisfactory to
the indemnified party, and after notice from the indemnifying party to the
indemnified party of its election to assume the defense, the indemnifying
party will not be liable to the indemnified party for any legal or other
expenses except as provided below and except for the reasonable costs of
investigation subsequently incurred by the indemnified party in connection
with the defense. The indemnified party will have the right to employ its
own counsel in any such action, but the fees, expenses and other charges of
such counsel will be at the expense of such indemnified party unless (1) the
employment of counsel by the indemnified party has been authorized in writing
by the indemnifying party, (2) the indemnified party has reasonably concluded
(based on advice of counsel) that there may be legal defenses available to it
or other indemnified parties that are different from or in addition to those
available to the indemnifying party, (3) a conflict or potential conflict
exists (based on advice of counsel to the indemnified party) between the
indemnified party and the indemnifying party (in which case the indemnifying
party will not have the right to direct the defense of such action on behalf
of the indemnified party) or (4) the indemnifying party has not in fact
employed counsel to assume the defense of such action within a reasonable
time after receiving notice of the commencement of the action, in each of
which cases the reasonable fees,
18
disbursements and other charges of counsel will be at the expense of the
indemnifying party or parties. It is understood that the indemnifying party
or parties shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm admitted to
practice in such jurisdiction at any one time for all such indemnified party
or parties. All such fees, disbursements and other charges will be
reimbursed by the indemnifying party promptly as they are incurred. An
indemnifying party will not be liable for any settlement of any action or
claim effected without its written consent (which consent will not be
unreasonably withheld).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing
paragraphs of this Article V is applicable in accordance with its terms but
for any reason is held to be unavailable from the Company or the Agent, the
Company and the Agent will contribute to the total losses, claims,
liabilities, expenses and damages (including any investigative, legal and
other expenses reasonably incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted, but
after deducting any contribution received by the Company from persons other
than the Agent, such as persons who control the Company within the meaning of
the Act, officers of the Company who signed the Registration Statement and
directors of the Company, who also may be liable for contribution) to which
the Company and the Agent may be subject in such proportion as shall be
appropriate to reflect the relative benefits received by the Company on the
one hand and the Agent on the other. The relative benefits received by the
Company on the one hand and the Agent on the other hand shall be deemed to be
in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total compensation
(before deducting expenses) received by the Agent from the sale of Stock on
behalf of the Company. If, but only if, the allocation provided by the
foregoing sentence is not permitted by applicable law, the allocation of
contribution shall be made in such proportion as is appropriate to reflect
not only the relative benefits referred to in the foregoing sentence but also
the relative fault of the Company, on the one hand, and the Agent, on the
other, with respect to the statements or omission which resulted in such
loss, claim, liability, expense or damage, or action in respect thereof, as
well as any other relevant equitable considerations with respect to such
offering. Such 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 Agent, 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 Agent agree that it would not be
just and equitable if contributions pursuant to this Section 5(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, liability, expense or damage, or action in respect thereof, referred
to above in this Section 5(d) shall be deemed to include, for the purpose of
this Section 5(d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the
19
foregoing provisions of this Section 5(d), the Agent shall not be required to
contribute any amount in excess of the amount by which the total actual sales
price at which Stock sold by the Agent exceeds the amount of any damages that
the Agent has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission and no person found
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act) will be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section
5(d), any person who controls a party to this Agreement within the meaning of
the Act will have the same rights to contribution as that party, and each
officer of the Company who signed the Registration Statement will have the
same rights to contribution as the Company, subject in each case to the
provisions hereof. Any party entitled to contribution, promptly after
receipt of notice of commencement of any action against such party in respect
of which a claim for contribution may be made under this Section 5(d), will
notify any such party or parties from whom contribution may be sought, but
the omission so to notify will not relieve that party or parties from whom
contribution may be sought from any other obligation it or they may have
under this Section 5(d). No party will be liable for contribution with
respect to any action or claim settled without its written consent (which
consent will not be unreasonably withheld).
(e) The indemnity and contribution provided by this Article V shall not
relieve the Company and the Agent from any liability the Company and the
Agent may otherwise have (including, without limitation, any liability the
Agent may have for a breach of its obligations under Article II hereof).
ARTICLE VI.
REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY
6.1. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties and agreements of the Company herein or in
certificates delivered pursuant hereto, and the agreements of the Agent
contained in Article V hereof, shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of the Agent or
any controlling persons, or the Company (or any of their officers, directors
or controlling persons), and shall survive delivery of and payment for the
Stock.
ARTICLE VII.
TERMINATION
7.1. (a) The Agent shall have the right, by giving notice as
hereinafter specified at any time at or prior to any Closing Date, to
terminate this Agreement if (i) any material adverse
20
change, or any development that has actually occurred and that is reasonably
expected to cause material adverse change, in the business, financial
condition or results of operations of the Company and its subsidiaries has
occurred which, in the judgment of such Agent, materially impairs the
investment quality of the Stock, (ii) the Company shall have failed, refused
or been unable, at or prior to the Closing Date, to perform any agreement on
its part to be performed hereunder, (iii) any other condition of the Agent's
obligations hereunder is not fulfilled, (iv) any suspension or limitation of
trading in the Stock on the Trading Market, or any setting of minimum prices
for trading of the Stock on such Trading Market, shall have occurred, (v) any
banking moratorium shall have been declared by Federal or New York
authorities or (vi) an outbreak or material escalation of major hostilities
in which the United States is involved, a declaration of war by Congress, any
other substantial national or international calamity or any other event or
occurrence of a similar character shall have occurred since the execution of
this Agreement that, in the judgment of the Agent, makes it impractical or
inadvisable to proceed with the completion of the sale of and payment for the
Stock to be sold by the Agent on behalf of the Company. Any such termination
shall be without liability of any party to any other party except that the
provisions of Section 3.1(g), Article V and Article VI hereof shall remain in
full force and effect notwithstanding such termination. If the Agent elects
to terminate this Agreement as provided in this Article, the Agent shall
provide the required notice as specified herein.
(b) The Company shall have the right to terminate this Agreement (i)
without cause upon ninety (90) days' prior written notice to the Agent, (ii)
if neither Xxxx Xxxxx nor Xxxx X'Xxxxx is then a principal of the Agent upon
five (5) days' prior written notice to the Agent or (iii) upon thirty (30)
days' prior written notice to the Agent if during any period of sixty (60)
consecutive calendar days during which the Company has not imposed any
limitations on sales by the Agent hereunder (other than Minimum Price), the
Agent fails to sell the lesser of (x) 80% of the aggregate Sales Period
Shares for such period or (y) 8% of the reported trading volume that exceeds
the Minimum Price by $0.125 or more during such period. If the Company
terminates this Agreement pursuant to subsection (i) above, the Company shall
pay the Agent liquidated damages in an amount equal to $5,000. For purposes
of this Agreement, "cause" shall mean either of the events referred to in
(ii) or (iii) above.
Except with respect to liquidated damages as expressly set forth
above, any termination of this Agreement shall be without liability or
obligation of any party to the other party, except that Section 3.1(g),
Article V and Article VI hereof shall remain in full force and effect
notwithstanding such termination and except that upon a termination by the
Company under subsection (i) of Section 7.1(b) the provisions of Section
3.1(h) also shall remain in full force and effect notwithstanding such
termination.
7.2. Notwithstanding the provisions of Section 3.1(h) hereof, this
Agreement shall automatically terminate on the earlier of (i) the first
anniversary of the date of this Agreement and (ii) the date on which the
Maximum Amount has been sold under this agreement (such date being
21
the "Permitted Termination Date"), unless the Company and the Agent agree in
writing to the contrary.
7.3. The Agent shall have the right, by giving notice as hereinafter
specified, to terminate this Agreement in its sole discretion at any time
after the earlier of (i) the first anniversary of the date of this Agreement
and (ii) the Company's engagement of another party to act as underwriter
pursuant to Section 3.1(h) hereof in connection with an Delayed Offering of
Equity Securities. Any such termination shall be without liability of any
party to any other party except that the provisions of Article 3.1(g),
Article V and Article VI hereof shall remain in full force and effect
notwithstanding such termination.
7.4. This Agreement shall remain in full force and effect unless
terminated pursuant to Section 7.1, 7.2 or 7.3 above or otherwise by mutual
agreement of the parties; provided that any such termination by mutual
agreement shall in all cases be deemed to provide that Section 3.1(g),
Article V and Article VI shall remain in full force and effect.
7.5. Any termination of this Agreement shall be effective on the date
specified in such notice of termination; provided that such termination shall
not be effective until the close of business on the date of receipt of such
notice by the Agent or the Company, as the case may be.
If such termination shall occur during a Sales Period, any Sales Period
Shares shall settle in accordance with the provisions of the second to last
paragraph of Article II hereof.
ARTICLE VIII.
NOTICES
8.1. NOTICES. All notices or communications hereunder shall be in
writing and if sent to the Agent shall be mailed, delivered, telexed or
telecopied and confirmed to the Agent at Xxxxxxx Xxxxxxx Securities
Corporation, Xxx Xxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, facsimile
number (000) 000-0000, Attention: Xxxx X'Xxxxx, or if sent to the Company,
shall be mailed, delivered, telexed or telecopied and confirmed to the
Company at 000 X. Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000, Attention:
Xxxx X. Xxxxxx. Each party to this Agreement may change such address for
notices by sending to the parties to this Agreement written notice of a new
address for such purpose.
22
ARTICLE IX.
MISCELLANEOUS
9.1. PARTIES. This Agreement shall inure to the benefit of and be
binding upon the Company and the Agent and their respective successors and
the controlling persons, officers and directors referred to in Article V
hereof, and no other person will have any right or obligation hereunder.
9.2. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
and supersedes all other prior and contemporaneous agreements and
undertakings, both written and oral, among the parties hereto with regard to
the subject matter hereof.
9.3. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO THE PRINCIPLES OF CONFLICTS OF LAWS.
9.4. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
If the foregoing correctly sets forth the understanding between the
Company and the Agent, please so indicate in the space provided below for
that purpose, whereupon this letter shall constitute a binding agreement
between the Company and the Agent. Alternatively, the execution of this
Agreement by the Company and its acceptance by or on behalf of the Agent may
be evidenced by an exchange of telegraphic or other written communications.
23
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the date hereof.
CENTERPOINT PROPERTIES TRUST
By: ____________________________
Name:
Title:
XXXXXXX XXXXXXX SECURITIES CORPORATION
By: ____________________________
Name:
Title:
24
