EXHIBIT 1.1
U.S. $300,000,000*
CENTERPOINT PROPERTIES TRUST
MEDIUM-TERM NOTES
DISTRIBUTION AGREEMENT
August 20, 0000
Xxxx xx Xxxxxxx Securities LLC
Banc One Capital Markets, Inc.
Xxxxxxx, Xxxxx & Co.
Xxxxxx Brothers Inc.
c/o Banc of America Securities LLC
Bank of America Corporate Center
000 Xxxxx Xxxxx 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 $300,000,000* in gross proceeds of its Medium-Term Notes
Due Nine Months or More from Date of Issuance (the "NOTES"). The Notes are to be
issued from time to time pursuant to an indenture, dated as of April 7, 1998
(the "ORIGINAL INDENTURE"), by and between the Company and U.S. Bank Trust
National Association, as trustee (the "TRUSTEE"), as supplemented by the First
Supplemental Indenture, dated as of April 7, 1998 (the "FIRST SUPPLEMENT"), the
Second Supplemental Indenture, dated as of October 23, 1998 (the "SECOND
SUPPLEMENT"), and the Third Supplemental Indenture, dated as of August 20, 2002
(the "THIRD 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
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* Or the U.S. dollar equivalent in certain specified foreign currencies,
composite currencies or currency units.
Notes and not to sales of any other securities or evidences of indebtedness of
the Company and only on the specific terms set forth herein.
Subject to the terms and conditions stated herein and to the
reservation by the Company of the right to sell its Notes directly on its own
behalf, the Company hereby (i) appoints the Agents, on a non-exclusive basis, as
the agents of the Company for the purpose of soliciting and receiving offers to
purchase Notes from the Company and (ii) agrees that whenever the Company
determines to sell Notes directly to the Agents as principals it will enter into
a separate agreement (each a "PURCHASE AGREEMENT"). Each such Purchase
Agreement, whether oral (and confirmed in writing, which may be by facsimile
transmission) or in writing, shall be with respect to such information (as
applicable) as specified in Exhibit C hereto, relating to such sale in
accordance with Section 2(e) hereof.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to the Agents as of the date hereof, as of the Closing Date (defined
herein) and as of the times referred to in Sections 6(a) and 6(b) hereof (the
Closing Date and each such time being hereinafter sometimes referred to as a
"REPRESENTATION DATE"), as follows:
(a) A registration statement (File No. 333-42748) on Form S-3
with respect to, among other things, the Notes has been prepared and
filed by the Company in conformity with the requirements of the
Securities Act of 1933, as amended (the "ACT"), and the rules and
regulations (the "RULES AND REGULATIONS") of the Securities and
Exchange Commission (the "COMMISSION") thereunder, and has become
effective under the Act. The Indenture has been qualified under the
Trust Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT"). As
used in this Agreement, (i) "REGISTRATION STATEMENT" means such
registration statement (including all documents incorporated therein by
reference) when it 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
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counsel for the Agents, a prospectus relating to the Notes is required
to be delivered under the Act and solicitation has not been suspended
by the Company under Section 2(b) (each a "MARKETING PERIOD"), in all
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
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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-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
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the right to require the Company or any subsidiary of the Company to
file a registration statement under the Securities Act with respect to
any securities of the Company or any subsidiary of the Company owned or
to be owned by such person or to require the Company to include such
securities in the securities registered pursuant to the Registration
Statement or in any securities being registered pursuant to any other
registration statement filed by the Company under the Securities Act.
(h) Neither the Company nor any of its subsidiaries has
sustained, since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus, any material
loss or interference with its business from fire, explosion, flood,
earthquake or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Prospectus;
and, since such date, there has not been any change in the capital
stock other than issuances of Common Shares in connection with stock
option and other benefit plans and agreements, the conversion of
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) (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
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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 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.
(l) The Company and each of its subsidiaries carry, or are
covered by, insurance in such amounts and covering such risks as is
adequate for the conduct of their respective businesses and the value
of their respective properties and as is customary for companies
engaged in similar businesses in similar industries.
(m) The Company and each of its subsidiaries own or possess
adequate rights to use all 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.
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(n) There are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which any
property or assets of the Company or any of its subsidiaries is the
subject which, if determined adversely to the Company or any of its
subsidiaries, 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.
(o) There are no contracts or other documents which are
required to be described in the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act or by the Rules and
Regulations which have not been described in the Prospectus or filed as
exhibits to the Registration Statement or incorporated therein by
reference as permitted by the Rules and Regulations.
(p) No relationship, direct or indirect, exists between or
among the Company on the one hand, and the directors, officers or
stockholders of the Company on the other hand, which is required to be
described in the Prospectus which is not so described.
(q) No labor disturbance by the employees of the Company
exists or, to the knowledge of the Company, is imminent which might be
expected to have a material adverse effect on the consolidated
financial position, stockholders' equity, results of operations,
business or prospects of the Company and its subsidiaries.
(r) The Company is in compliance in all material respects with
all presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and
published interpretations thereunder ("ERISA"); no "reportable event"
(as defined in ERISA) has occurred with respect to any "pension plan"
(as defined in ERISA) for which the Company would have any liability;
the Company has not incurred and does not expect to incur liability
under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of the
Internal Revenue Code of 1986, as amended, including the regulations
and published interpretations thereunder (the "CODE"); and each
"pension plan " for which the Company would have any liability that is
intended to be qualified under Section 401(a) of the Code is so
qualified in all material respects and nothing has occurred, whether by
action or by failure to act, which would cause the loss of such
qualification.
(s) The Company has filed all federal, state and local income
and franchise tax returns required to be filed through the date hereof
and has paid all taxes due thereon, and no tax deficiency has been
determined adversely to the Company or any of its subsidiaries, which
has had (nor does the Company have any knowledge of any tax deficiency
which, if determined adversely to the Company or any of its
subsidiaries, 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.
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(t) Since the date as of which information is given in the
Prospectus through the date hereof, and except as may otherwise be
disclosed in the Prospectus, the Company has not (i) issued or granted
any securities, other than in connection with stock option and other
benefit plans and agreements, the conversion of 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).
(u) The Company (i) makes and keeps accurate books and records
and (ii) maintains internal accounting controls which provide
reasonable assurance that (A) transactions are executed in accordance
with management's authorization, (B) transactions are recorded as
necessary to permit preparation of its financial statements and to
maintain accountability for its assets, (C) access to its assets is
permitted only in accordance with management's authorization and (D)
the reported accountability for its assets is compared with existing
assets at reasonable intervals.
(v) Neither the Company nor any of its subsidiaries (i) is in
violation of its declaration of trust or charter, as the case may be,
or by-laws, (ii) is in default in any material respect, and no event
has occurred which, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any
term, covenant or condition contained in any material indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it is bound or to which
any of its properties or assets is subject or (iii) is in violation in
any material respect of any law, ordinance, governmental rule,
regulation or court decree to which it or its property or assets may be
subject or has failed to obtain any material license, permit,
certificate, franchise or other governmental authorization or permit
necessary to the ownership of its property or to the conduct of its
business.
(w) Neither the Company nor any of its subsidiaries, nor any
director, officer, agent, employee or other person associated with or
acting on behalf of the Company or any of its subsidiaries, has used
any corporate funds for any unlawful contribution, gift, entertainment
or other unlawful expense relating to political activity; made any
direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds; violated or is in
violation of any provision of the Foreign Corrupt Practices Act of
1977; or made any bribe, rebate, payoff, influence payment, kickback or
other unlawful payment.
(x) There has been no storage, disposal, generation,
manufacture, refinement, transportation, handling or treatment of any
material by the Company or any of its subsidiaries or, to the Company's
knowledge, any of their predecessors in interest at, upon or from any
of the properties now or previously owned or leased by the Company or
its subsidiaries or any of their predecessors in interest in violation
of any applicable law, ordinance, rule, regulation, order, judgment,
decree or permit or which would require
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remedial action damages other modification or cessation of any activity
of the Company or any of its subsidiaries under any applicable law,
common law, ordinance, rule, regulation, order, judgment, decree or
permit, except for any violation, remedial action, damages,
modification or cessation which would not have, singly or in the
aggregate with all such violations, remedial actions, damages,
modifications or cessations, a material adverse effect on the
consolidated financial position, stockholders' equity, results of
operations, business or prospects of the Company and its subsidiaries;
and there has been no material spill, discharge, leak, emission,
escape, dumping, migration or release of any kind onto such property or
into the environment surrounding such property except for any such
spill, discharge, leak, emission, injection, escape, dumping or release
which would not have, singly or in the aggregate with all such spills,
discharges, leaks, emission, injections, escapes, dumpings and
releases, a material adverse effect on the consolidated financial
position, stockholders' equity, results of operations, business or
prospects of the Company and its subsidiaries.
(y) Neither the Company nor any subsidiary is an "investment
company" within the meaning of such term under the Investment Company
Act of 1940 and the rules and regulations of the Commission promulgated
thereunder.
(z) The Company is organized in conformity with the
requirements for qualification as a real estate investment trust
("REIT") under the Code, and its present and contemplated method of
operation does and will enable it to meet the requirements for taxation
as a REIT under the Code for the year ended December 31, 1994 and
subsequent taxable years.
(aa) Each of the Company and its subsidiaries has title
insurance on all real property described in the Prospectus as owned by
such party in an amount at least equal to the greater of (a) the cost
of acquisition of such property or assets and (b) the cost of
construction of the improvements located on such properties.
(bb) 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.
(cc) 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
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the Rules and Regulations), including one or both of Xxxxx'x Investor
Services, Inc. and Standard & Poor's Corporation.
SECTION 2. SOLICITATIONS AS AGENTS; PURCHASES AS PRINCIPALS.
(a) APPOINTMENT. Subject to the terms and conditions stated herein, and
subject to the reservation by the Company of the right to sell Notes directly on
its own behalf and through or to other dealers or agents, the Company hereby
appoints the Agents on a non-exclusive basis as agents of the Company for the
purpose of soliciting or receiving offers to purchase the Notes from the Company
by others. The Company may from time to time offer Notes for sale otherwise than
through the Agents; PROVIDED, HOWEVER, that so long as this Agreement shall be
in effect the Company shall not solicit offers to purchase Notes through any
other agents without amending this Agreement to appoint such agents as
additional Agents hereunder on the same terms and conditions as provided herein
for the Agents and without giving the Agents prior notice of such appointment.
The consent of the then current Agents shall not be necessary for such purpose.
In the absence of such an amendment, the Company may accept offers to purchase
Notes from or through an agent other than the Agents, provided that (i) the
Company shall not have solicited such offers, (ii) the Company and such agent
shall have executed an agreement with respect to such purchases having terms and
conditions (including, without limitation, commission rates) with respect to
such purchases substantially the same as the terms and conditions that would
apply to such purchases under this Agreement as if such agent was an Agent
(which may be accomplished by incorporating by reference in such agreement the
terms and conditions of this Agreement), and (iii) the Company shall provide the
Agents with a copy of such agreement following the execution thereof. On the
basis of the representations and warranties contained herein, but subject to the
terms and conditions herein set forth, the Agents agree, as Agents of the
Company, to use their reasonable efforts to solicit offers to purchase the Notes
upon the terms and conditions set forth in the Prospectus. Except as otherwise
provided herein, so long as this Agreement shall remain in effect, the Company
shall not, without the consent of the Agents, solicit or accept offers to
purchase Notes otherwise than through the Agents; PROVIDED, HOWEVER, the Company
expressly reserves the right to sell Notes directly to investors, in which case
no commission will be payable with respect to any such sale. The Agents may also
purchase Notes from the Company as principals for purposes of resale, as more
fully described in paragraph (e) of this Section.
(b) SUSPENSION OF SOLICITATION. The Company reserves the right, in its
sole discretion, to suspend solicitation of offers to purchase the Notes
commencing at any time for any period of time or indefinitely. Upon receipt of
telephonic notice confirmed by facsimile notice from the Company, the Agents
will forthwith suspend solicitation of offers to purchase Notes from the Company
until such time as the Company has advised the Agents that such solicitation may
be resumed.
Upon receipt of notice from the Company as contemplated by Section 3(c)
hereof, the Agents shall suspend their solicitation of offers to purchase Notes
until such time as the Company shall have furnished them with an amendment or
supplement to the Registration Statement or the Prospectus, as the case may be,
contemplated by Section 3(c) and shall have advised the Agents that such
solicitation may be resumed.
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(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 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
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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, 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 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.
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(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 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
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the Registration Statement, (ii) the effective date of the most recent
post-effective amendment to the Registration Statement to become
effective prior to the date of such acceptance and (iii) the date of
the Company's most recent Annual Report on Form 10-K filed with the
Commission prior to the date of such acceptance which will satisfy the
provisions of Section 11(a) of the Act (including, at the option of the
Company, Rule 158 of the Rules and Regulations);
(i) COPIES OF REPORTS, RELEASES AND FINANCIAL STATEMENTS. So
long as any of the Notes are outstanding, to furnish to the Agents, not
later than the time the Company makes the same available to others,
copies of all public reports or releases and all reports and financial
statements furnished by the Company to any securities exchange on which
the Notes are listed pursuant to requirements of or agreements with
such exchange or to the Commission pursuant to the Exchange Act or any
rule or regulation of the Commission thereunder.
(j) BLUE SKY QUALIFICATIONS. To endeavor, in cooperation with
the Agents, to qualify the Notes for offering and sale under the
securities laws of such jurisdictions as the Agents may designate, and
to maintain such qualifications in effect for as long as may be
required for the distribution of the Notes; and to file such statements
and reports as may be required by the laws of each jurisdiction in
which the Notes have been qualified as above provided; PROVIDED,
HOWEVER, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign entity in any
jurisdiction in which it is not so qualified.
(k) HOLDBACK. Between the date of a Purchase Agreement and the
date of delivery of the Notes with respect thereto, the Company will
not, without the prior written consent of 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;
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(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:
(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.
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(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, 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 shall also have furnished to the Agents a written
statement, addressed to the Agents and dated the Closing Date, in form and
substance reasonably satisfactory to the Agents, to the effect that no facts
have come to the attention of such counsel which lead it to believe that the
Registration Statement, as of 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;
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(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 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:
-17-
(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 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.
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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,
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 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.
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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 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
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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 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.
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(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 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
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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 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.
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(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 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
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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
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:
Banc of America Securities LLC, Bank of America Corporate Center, 000 Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Medium Term Note Desk;
telephone: (000) 000-0000; facsimile: (000) 000-0000; Banc One Capital Markets,
Inc., 0 Xxxx Xxx Xxxxx, Xxxxx XX0-0000, Xxxxxxx, XX 00000-0000;; Xxxxxxx, Xxxxx
& Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Xxx Xxxxxx; Xxxxxx
Brothers Inc., 000 0xx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Debt Capital
Markets. Notices to the Company shall be directed to it as follows: 0000 Xxxxx
Xxxx, Xxx Xxxxx, Xxxxxxxx 00000; telephone (000) 000-0000, facsimile: (630)
586-8010.
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,
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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.
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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 /s/ Xxxx X. Xxxxxxx
CONFIRMED AND ACCEPTED, Name: Xxxx X. Xxxxxxx
as of the date first above written: Title: CFO and Secretary
BANC OF AMERICA SECURITIES LLC
By /s/ Xxxxxxx X. Xxxxxxxx III
Name: Xxxxxxx X. Xxxxxxxx III
Title: Managing Director
XXXXXX BROTHERS INC.
By /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Managing Director
XXXXXXX, SACHS & CO.
By /s/ Xxxxxxx, Xxxxx & Co.
(Xxxxxxx, Sachs & Co.)
BANC ONE CAPITAL MARKETS, INC.
By /s/ Xxxxxxxxx Xxxxx
Name: Xxxxxxxxx Xxxxx
Title: Associate Director
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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 .125%
12 months to less than 18 months .150%
18 months to less than 2 years .200%
2 years to less than 3 years .250%
3 years to less than 4 years .350%
4 years to less than 5 years .450%
5 years to less than 6 years .500%
6 years to less than 7 years .550%
7 years to less than 10 years .600%
10 years to less than 15 years .625%
15 years to less than 20 years .700%
20 years to 30 years .750%
More than 30 years To be negotiated at time of sale
EXHIBIT A
TERMS OF NOTES
The following terms, if applicable, shall be agreed to by any Agent and
the Company in connection with each sale of Notes:
Principal Amount: $_________
(or principal amount of foreign currency or composite
currency)
Interest Rate or Formula:
If Fixed Rate Note,
Interest Rate:
Default Rate:
Interest Payment Dates:
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:
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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"). Banc of America Securities LLC, Banc One Capital Markets, Inc.,
Xxxxxxx, Xxxxx & Co., Xxxxxx Brothers Inc., 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 August 20, 2002
(as it may be supplemented or amended from time to time, the "
DISTRIBUTION
AGREEMENT") to which these administrative procedures are attached as an exhibit.
The Notes are to be issued from time to time pursuant to an indenture, dated as
of April 7, 1998 (the "ORIGINAL INDENTURE"), by and between the Company and U.S.
Bank Trust National Association, as trustee (the "TRUSTEE"), as supplemented by
the First Supplemental indenture, dated as of April 7, 1998 (the "FIRST
SUPPLEMENT"), the Second Supplemental Indenture, dated as of October 23, 1998
(the "SECOND SUPPLEMENT"), and the Third Supplemental Indenture, dated as of
August 20, 2002 (the "THIRD 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 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
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Payment Date will be made on the Interest Payment Date following the next
succeeding Regular Record Date. All interest payments, excluding interest
payments made at Stated Maturity or upon redemption, if applicable, will be made
by check mailed to the person entitled thereto as provided above (which, in the
case of a permanent Global Note representing Book Entry Notes, shall be the
Depository Trust Company or nominee thereof), or, at the option of the Company,
by wire transfer to an account maintained by such person with a bank located in
the United States. Notwithstanding the foregoing, the holder of $10 million or
more in aggregate principal amount of Notes with the same Interest Payment Date
may request payment by wire transfers.
On the fifth Business Day immediately preceding each Interest Payment
Date, the Trustee will furnish the Company with the total amount of the interest
payments to be made on such Interest Payment Date. The Trustee (or any duly
selected paying agent) will provide monthly to the Company's Treasury Department
a list of the principal and interest to be paid on Notes maturing in the next
succeeding month. The Company will provide to the Trustee (and any such paying
agent) not later than the payment date sufficient moneys to pay in full all
principal and interest payments due on such payment date. The Trustee or any
such paying agent will assume responsibility for withholding taxes on interest
paid as required by law.
ACCEPTANCE AND REJECTION OF OFFERS
The Company shall have the sole right to accept offers to purchase
Notes and may reject any such offer in whole or in part. Each Agent shall
promptly communicate to the Company, orally or in writing, each reasonable offer
to purchase Notes from the Company received by it other than those rejected by
such Agent. Each Agent shall have the right, in its discretion reasonably
exercised without advising the Company, to reject any offers in whole or in
part.
SETTLEMENT
The receipt of immediately available funds in U.S. Dollars by the
Company in payment for a Note (less the applicable commission) and the
authentication and issuance of such Note shall, with respect to such Note,
constitute "Settlement." All offers accepted by the Company will be settled 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
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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
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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: Banc
of America Securities LLC, Bank of America Corporate Center, 000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Medium Term Note Desk;
telephone: (000) 000-0000; facsimile: (000) 000-0000; Banc One Capital Markets,
Inc., 0 Xxxx Xxx Xxxxx, Xxxxx XX0-0000, Xxxxxxx, XX 00000-0000;; Xxxxxxx, Xxxxx
& Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Xxx Xxxxxx; Xxxxxx
Brothers Inc., 000 0xx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Debt Capital
Markets. 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.
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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
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Trustee shall have any direct responsibility or liability for the payment by DTC
to such Participants of the principal of and interest on the Book-Entry Notes.
The amount of any taxes required under applicable law to be withheld
from any interest payment on a Book-Entry Note will be determined and withheld
by the Participant, indirect participant in DTC or other Person responsible for
forwarding payments and materials directly to the beneficial owner of such Note.
BOOK ENTRY SETTLEMENT PROCEDURES
Settlement Procedures with regard to each Book-Entry Note sold by the
Company through an Agent, as agent, shall be as follows:
A. The Presenting Agent will advise the Company by telephone,
telex or facsimile, of the following settlement information:
1. Exact name in which Note is to be registered
("REGISTERED OWNER").
2. Exact address of the Registered Owner and address
for payments of principal and interest, if any.
3. Taxpayer identification number of the Registered
Owner.
4. Principal amount of the Note (and, if multiple
Notes are to be issued, denominations thereof).
5. Settlement date.
6. Stated Maturity.
7. issue Price and any OID information.
8. Trade date.
9. The DTC Participant account number of such Agent.
10. Interest rate:
(a) Fixed Rate Notes:
(i) interest rate
(ii) overdue rate, if any
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(b) Floating Rate Notes:
(i) interest rate basis
(ii) initial interest rate
(iii) spread or spread multiplier, if
any
(iv) interest rate reset periods
(v) interest payment dates
(vi) index maturity
(vii) 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
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 August 20, 2002 (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 AUGUST 20, 2002, 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
August 20, 2002, 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 2002-1 Notes] conform to the description thereof contained in
the Prospectus.
3. The Registration Statement was declared effective under the Securities
Act as of November 7, 2000 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 2002-1 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 2002-1 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,
2001, 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 2002-1 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.
-3-
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 2002-1 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
-4-
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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