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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 4, 1997
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CenterPoint Properties Trust
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(Exact name of registrant as specified in its charter)
Maryland 1-12630 36-3910279
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(State or other jurisdiction Commission File (I.R.S. Employer
of incorporation) Number Identification No.)
401 N. Michigan Avenue, Chicago, Illinois 60611
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(Address of principal executive offices)
Registrant's telephone number, including area code (312) 346-5600
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CenterPoint Properties Corporation
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(Former name or former address, if changed since last report.)
ITEM 5. OTHER EVENTS.
On December 19, 1996 CenterPoint Properties Corporation (the "Corporation")
filed a registration statement on Form S-3, Registration Statement No. 333-18235
(the "Original Registration Statement") with the Securities and Exchange
Commission (the "Commission") relating to the public offering, pursuant to Rule
415 under the Securities Act of 1933, as amended (the "1933 Act"), of up to an
aggregate of $200,000,000 in common shares, preferred shares, debt securities
and warrants of the Corporation. On January 6, 1997, the Commission declared
the Original Registration Statement effective. On October 15, 1997, the
Corporation was reorganized from a Maryland corporation to a Maryland real
estate investment trust by means of a merger of the Corporation with and into
CenterPoint Properties Trust (the "Company") with the Company as the surviving
entity. On October 15, 1997, the Company filed Post-Effective Amendment No. 1
to the Original Registration Statement (as amended, the "Registration
Statement") under which the Company adopted the Original Registration Statement
of the
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Corporation pursuant to Rule 414(d) of the 1933 Act. On October 23, 1997, the
Commission declared the Registration Statement effective. (The Registration
Statement and definitive prospectus contained therein are collectively referred
to as the "Prospectus.")
The Company is filing on the date hereof a supplement to the Prospectus,
dated November 4, 1997 (the "Preferred Shares Supplement"), relating to the
issuance and sale of 3,000,000 of its 8.48% Series A Cumulative Redeemable
Preferred Shares of Beneficial Interest, Liquidation Preference $25.00 per
share, $.001 par value per share (the "Preferred Shares"), at $25.00 per share.
Lehman Brothers, A.G. Edwards & Sons, Inc., PaineWebber Incorporated, The
Robinson-Humphrey Company, LLC, Smith Barney Inc. and Wheat, First Securities,
Inc. (collectively, the "Underwriters") have acted as underwriters for such
offering. In connection with the filing of the Preferred Shares Supplement with
the Commission, the Company is filing certain exhibits as part of this Form 8-K,
including the Underwriting Agreement relating to such offering. See "Item 7.
Financial Statements and Exhibits."
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits
1 Form of Underwriting Agreement dated November 4, 1997 among the
Company and the Underwriters.
5 Opinion Letter of Ungaretti & Harris regarding the validity of
the Preferred Shares.
8 Opinion Letter of Ungaretti & Harris regarding tax matters.
12 Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of Ungaretti & Harris (included as part of Exhibit 5)
23.2 Consent of Coopers & Lybrand L.L.P.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
CENTERPOINT PROPERTIES TRUST
(Registrant)
Dated: November 5, 1997 By: /s/ John S. Gates, Jr.
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Its: President and Chief Executive Officer
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Page 1
3,000,000 Shares
CENTERPOINT PROPERTIES TRUST
UNDERWRITING AGREEMENT
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8.48% Series A Cumulative Redeemable
Preferred Shares of Beneficial Interest,
par value $.001 per share
November 4, 1997
LEHMAN BROTHERS INC.
A.G. EDWARDS & SONS, INC.
PAINEWEBBER INCORPORATED
THE ROBINSON-HUMPHREY COMPANY, L.L.C.
SMITH BARNEY INC.
WHEAT, FIRST SECURITIES, INC.
c/o Lehman Brothers Inc.
3 World Financial Center
New York, New York 10285
Ladies and Gentlemen:
CenterPoint Properties Trust, a Maryland real estate investment trust
(the "Company"), proposes to sell 3,000,000 shares (the "Shares") of the
Company's 8.48% Series A Cumulative Redeemable Preferred Shares of Beneficial
Interest, par value $.001 per share (the "Series A Preferred Shares"). This
is to confirm the agreement concerning the purchase of the Shares from the
Company by the Underwriters named in Schedule I hereto (the "Underwriters").
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. The Company
represents, warrants and agrees that:
(a) A registration statement (File No. 333-18235) on Form S-3, and
one or more amendments thereto, with respect to the securities registered
thereunder (the "Shelf Securities") to be issued from time to time (i) have
been prepared by the Company in conformity with the requirements of the
Securities Act of 1933, as amended (the "Securities Act") and the rules and
regulations (the "Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") promulgated thereunder, (ii) have been filed
with the Commission under the Securities Act and (iii) have become effective
under the Securities Act. Copies of such registration statement and the
amendments thereto have been delivered by the Company to you. As used in
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this Agreement, "Effective Time" means the dates and the times as of which
such registration statement, or the most recent post-effective amendment
thereto, if any, were declared effective by the Commission; "Effective Date"
means the dates of the Effective Time. The registration statement as amended
to the date of this Agreement is hereinafter referred to as the "Registration
Statement" and the related prospectus covering the Shelf Securities in the
form first used to confirm sales of the Shares is hereinafter referred to as
the "Basic Prospectus." The Basic Prospectus as supplemented by the
prospectus supplement specifically relating to the Shares in the form first
filed pursuant to Rule 424 of the Rules and Regulations ("Rule 424") is
hereinafter referred to as the "Prospectus." Any reference in this Agreement
to the Registration Statement, the Basic Prospectus, any preliminary form of
Prospectus (a "preliminary prospectus") previously filed with the Commission
pursuant to Rule 424 or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the Securities Act which were filed under the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Commission promulgated thereunder (collectively, the "Exchange Act") on or
before the date of this Agreement or the date of the Basic Prospectus, any
preliminary prospectus or the Prospectus, as the case may be; and any
reference to "amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any preliminary prospectus or
the Prospectus shall be deemed to refer to and include any documents filed
under the Exchange Act after the date of this Agreement, or the date of the
Basic Prospectus, any preliminary prospectus or the Prospectus, as the case
may be, which are deemed to be incorporated by reference therein. The
Commission has not issued any order preventing or suspending the use of any
preliminary prospectus.
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Securities Act
or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
and any further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission, as the case may
be, will conform in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary or make the statements therein not misleading; provided, however,
no representation or
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warranty is made as to any statements or omissions made in reliance upon and
in conformity with written information furnished to the Company by or on
behalf of any Underwriter specifically for inclusion therein.
(c) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will, when they become effective or are filed with the Commission,
as the case may be, conform in all respects to the requirements of the
Securities Act and the Rules and Regulations and do not and will not, as of
the applicable effective date (as to the Registration Statement and any
amendment thereto) and as of the applicable filing date (as to the Prospectus
and any amendment or supplement thereto) contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; PROVIDED that no
representation or warranty is made as to information contained in or omitted
from the Registration Statement or the Prospectus in reliance upon and in
conformity with written information furnished to the Company by or on behalf
of any Underwriter specifically for inclusion therein.
(d) The Company and each of its subsidiaries have been duly
incorporated and are validly existing as corporations in good standing under
the laws of their respective jurisdictions of incorporation, are duly
qualified to do business and are in good standing in each jurisdiction in
which the laws of such jurisdiction require such qualification, and have all
power and authority necessary to own or hold their respective properties and
to conduct the businesses in which they are engaged; and none of the
subsidiaries of the Company is a "significant subsidiary", as such term is
defined in Rule 405 of the Rules and Regulations.
(e) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable and conform to the description thereof contained in the
Prospectus; and all of the issued shares of capital stock of each subsidiary
of the Company have been duly and validly authorized and issued and are fully
paid and non-assessable and except as set forth in the Prospectus are owned
directly or indirectly by the Company as described in the Prospectus, free
and clear of all liens, encumbrances, equities or claims.
(f) The unissued Shares to be issued and sold by the Company to the
Underwriters hereunder and the articles supplementary creating the Series A
Preferred Shares (the "Articles Supplementary") have been duly and validly
authorized and, when the Shares are issued and delivered against payment
therefor as provided herein, the Shares will be duly and validly issued,
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fully paid and non-assessable and the holders thereof will be entitled to the
benefit of the terms contained in the Articles Supplementary; and the Shares
and the Articles Supplementary conform to the descriptions thereof contained
in the Prospectus.
(g) This Agreement has been duly authorized, executed and delivered
by the Company and constitutes the valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms; the
execution, delivery and performance of this Agreement by the Company and the
consummation of the transactions contemplated hereby have been duly
authorized by all necessary corporate action and did not and will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any of the properties or
assets of the Company or any of its subsidiaries pursuant to any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument 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 Shares under the Securities Act
and such consents, approvals, authorizations, registrations or qualifications
as may be required under the Exchange Act and applicable state securities
laws in connection with the purchase and distribution of the Shares by the
Underwriters, no consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body was or is
required for the execution, delivery and performance of this Agreement by the
Company and the consummation of the transactions contemplated hereby.
(h) Except as disclosed in the Registration Statement, there are no
contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company or any subsidiary of
the Company to file a registration statement under the Securities Act with
respect to any securities of the Company or any subsidiary of the Company
owned or to be owned by such person or to require the Company to include such
securities in the securities registered pursuant to the Registration
Statement or in any securities being registered pursuant to any other
registration statement filed by the Company under the Securities Act.
(i) Neither the Company nor any of its subsidiaries has sustained,
since the date of the latest audited financial statements included or
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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 or 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.
(j) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or included
or incorporated by reference in the Prospectus present fairly the financial
condition and results of operations of the entities purported to be shown
thereby, at the dates and for the periods indicated, and have been prepared
in conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved.
(k) Coopers & Lybrand, who have certified certain financial
statements of the Company and whose report appears in the Prospectus, are
independent public accountants as required by the Securities Act and the
Rules and Regulations.
(l) (i) The Company and each of its subsidiaries have good and
marketable title in fee simple to all real property and good and marketable
title to all personal property owned by them, in each case free and clear of
all liens, encumbrances and defects except such as are described in the
Prospectus or such as do not materially affect the value of such property and
do not materially interfere with the use made and proposed to be made of such
property by the Company and its subsidiaries; (ii) all real property and
buildings held under lease by the Company and its subsidiaries are held by
them under valid, subsisting and enforceable leases, with such exceptions as
are not material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company and its subsidiaries;
(iii) all liens, charges, encumbrances, claims, or restrictions on or
affecting the properties and assets of any of the Company or its subsidiaries
which are required to be disclosed in the Prospectus are disclosed therein;
(iv) neither the Company nor any of its subsidiaries is in default under any
of the leases pursuant to which any of the Company or its subsidiaries leases
its properties and neither the Company nor any of its subsidiaries knows of
any event which, but for the passage of time or the giving of notice, or
both, would constitute a default under any of such leases; (v) except as
described in the Prospectus, no tenant under any of the
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leases pursuant to which any of the Company or its subsidiaries leases
properties has an option or right of first refusal to purchase the premises
under such lease; (vi) each of the properties of any of the Company or its
subsidiaries complies with all applicable codes and zoning laws and
regulations, except for such failures to comply which would not individually
or in the aggregate have a material adverse effect on the consolidated
financial position, stockholders' equity, results of operations, business or
prospects of the Company and its subsidiaries; and (vii) neither the Company
nor any of its subsidiaries has knowledge of any pending or threatened
condemnation, zoning change, or other proceeding or action that will 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.
(m) The Company and each of its subsidiaries carry, or are covered
by, insurance in such amounts and covering such risks as is adequate for the
conduct of their respective businesses and the value of their respective
properties and as is customary for companies engaged in similar businesses in
similar industries.
(n) The Company and each of its subsidiaries own or possess
adequate rights to use all material patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service mark
registrations, copyrights and licenses necessary for the conduct of their
respective businesses and have no reason to believe that the conduct of their
respective businesses will conflict with, and have not received any notice of
any claim of conflict with, any such rights of others.
(o) There are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or of which any property or
assets of the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries, might have a
material adverse effect on the consolidated financial position, stockholders'
equity, results of operations, business or prospects of the Company and its
subsidiaries; and to the best of the Company's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or threatened by
others.
(p) There are no contracts or other documents which are required to
be described in the Prospectus or filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and Regulations which have
not been described in the Prospectus or filed as exhibits to the Registration
Statement or incorporated therein by reference as permitted by the Rules and
Regulations.
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(q) No relationship, direct or indirect, exists between or among
the Company on the one hand, and the directors, officers or stockholders of
the Company on the other hand, which is required to be described in the
Prospectus which is not so described.
(r) No labor disturbance by the employees of the Company exists or,
to the knowledge of the Company, is imminent which might be expected to have
a material adverse effect on the consolidated financial position,
stockholders' equity, results of operations, business or prospects of the
Company and its subsidiaries.
(s) The Company is in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income Security
Act of 1974, as amended, including the regulations and published
interpretations thereunder ("ERISA"); no "reportable event" (as defined in
ERISA) has occurred with respect to any "pension plan" (as defined in ERISA)
for which the Company would have any liability; the Company has not incurred
and does not expect to incur liability under (i) Title IV of ERISA with
respect to termination of, or withdrawal from, any "pension plan" or (ii)
Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended,
including the regulations and published interpretations thereunder (the
"Code"); and each "pension plan" for which the Company would have any
liability that is intended to be qualified under Section 401(a) of the Code
is so qualified in all material respects and nothing has occurred, whether by
action or by failure to act, which would cause the loss of such qualification.
(t) The Company has filed all federal, state and local income and
franchise tax returns required to be filed through the date hereof and has
paid all taxes due thereon, and no tax deficiency has been determined
adversely to the Company or any of its subsidiaries, which has had (nor does
the Company have any knowledge of any tax deficiency which, if determined
adversely to the Company or any of its subsidiaries, might have) a material
adverse effect on the consolidated financial condition, stockholders' equity,
results of operations, business or prospects of the Company and its
subsidiaries.
(u) Since the date as of which information is given in the
Prospectus through the date hereof, and except as may otherwise be disclosed
in the Prospectus, the Company has not (i) issued or granted any securities,
(ii) incurred any 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.
(v) The Company (i) makes and keeps accurate books and
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records and (ii) maintains internal accounting controls which provide
reasonable assurance that (A) transactions are executed in accordance with
management's authorization, (B) transactions are recorded as necessary to
permit preparation of its financial statements and to maintain accountability
for its assets, (C) access to its assets is permitted only in accordance with
management's authorization and (D) the reported accountability for its assets
is compared with existing assets at reasonable intervals.
(w) Neither the Company nor any of its subsidiaries (i) is in
violation of its declaration of trust or charter, as the case may be, or
by-laws, (ii) is in default in any material respect, and no event has
occurred which, with notice or lapse of time or both, would constitute such a
default, in the due performance or observance of any term, covenant or
condition contained in any material indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party or by which
it is bound or to which any of its properties or assets is subject or (iii)
is in violation in any material respect of any law, ordinance, governmental
rule, regulation or court decree to which it or its property or assets may be
subject or has failed to obtain any material license, permit, certificate,
franchise or other governmental authorization or permit necessary to the
ownership of its property or to the conduct of its business.
(x) Neither the Company nor any of its subsidiaries, nor any
director, officer, agent, employee or other person associated with or acting
on behalf of the Company or any of its subsidiaries, has used any corporate
funds for any unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity; made any direct or indirect unlawful
payment to any foreign or domestic government official or employee from
corporate funds; violated or is in violation of any provision of the Foreign
Corrupt Practices Act of 1977; or made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment.
(y) There has been no storage, disposal, generation, manufacture,
refinement, transportation, handling or treatment of any material by the
Company or any of its subsidiaries or, to the Company's knowledge, any of
their predecessors in interest at, upon or from any of the properties now or
previously owned or leased by the Company or its subsidiaries or any of their
predecessors in interest in violation of any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit or which would require remedial
action damages or the modification or cessation of any activity of the
Company or any of its subsidiaries under any applicable law, common law,
ordinance, rule, regulation, order, judgment, decree or permit, except for
any 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 general affairs, management,
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financial position, stockholders' equity or results of operations of the
Company and its subsidiaries; and there has been no material spill,
discharge, leak, emission, injection, escape, dumping, migration or release
of any kind onto such property or into the environment surrounding such
property except for any such spill, discharge, leak, emission, injection,
escape, dumping or release which would not have, singly or in the aggregate
with all such spills, discharges, leaks, emissions, injections, escapes,
dumpings and releases, a material adverse effect on the general affairs,
management, financial position, stockholders' equity or results of operations
of the Company and its subsidiaries.
(z) Neither the Company nor any subsidiary is an "investment
company" within the meaning of such term under the Investment Company Act of
1940 and the rules and regulations of the Commission promulgated thereunder.
(aa) The Company is organized in conformity with the requirements
for qualification as a real estate investment trust under the Code, and its
present and contemplated method of operation does and will enable it to meet
the requirements for taxation as a real estate investment trust ("REIT")
under the Code for the year ended December 31, 1994 and subsequent taxable
years.
(bb) Each of the agreements relating to the acquisition of
properties by the Company has been duly authorized, executed and delivered by
the Company and constitutes the valid and binding agreement of the Company,
enforceable in accordance with its terms, except to the extent that
enforcement thereof may be limited by (1) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (2) general principles of equity
(regardless of whether enforceability is considered in a proceeding at law or
in equity) and the execution, delivery and performance of such agreements do
not constitute a breach of, or default under, the declaration of trust or
by-laws of the Company or any material contract, lease or other instrument to
which the Company or any of its subsidiaries is a party or by which any of
them or any of their properties may be bound or any law, administrative
regulation or administrative or court decree.
(cc) Each of the Company and its subsidiaries has title insurance
on all properties and assets described in the Prospectus as owned by such
party in an amount at least equal to the greater of (a) the cost of
acquisition of such property or assets and (b) the cost of construction of
the improvements located on such properties.
2. PURCHASE OF THE SHARES BY THE UNDERWRITERS. On the basis of the
representations and warranties contained in, and subject to the terms and
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conditions of, this Agreement, the Company agrees to sell to the several
Underwriters and each of the Underwriters, severally and not jointly, agrees
to purchase at a price of $24.24125 per share the number of Shares set
opposite such Underwriter's name in Schedule I hereto.
The Company shall not be obligated to deliver any of the Shares to be
delivered on the Delivery Date (as hereinafter defined) except upon payment
for all the Shares to be purchased on the Delivery Date as provided herein.
3. OFFERING OF SHARES BY THE UNDERWRITERS. Upon authorization by the
Underwriters of the release of the Shares, the several Underwriters propose
to offer the Shares for sale upon the terms and conditions set forth in the
Prospectus.
4. DELIVERY OF AND PAYMENT FOR THE SHARES. Delivery of and payment for
the Shares shall be made at such place as shall be determined by agreement
between the Underwriters and the Company at 10:00 A.M., New York City time,
on the fourth full business day following the date of this Agreement or at
such other date as shall be determined by agreement between the Underwriters
and the Company. This date and time are sometimes referred to as the
"Delivery Date." On the Delivery Date, the Company shall deliver or cause to
be delivered certificates representing the Shares to the Underwriters against
payment to or upon the order of the Company of the purchase price by wire
transfer in federal or same day funds. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement is a
further condition of the obligation of each Underwriter hereunder. Upon
delivery, the Shares shall be registered in such names and in such
denominations as the Underwriters shall request in writing not less than two
full business days prior to the Delivery Date. For the purpose of expediting
the checking and packaging of the certificates for the Shares, the Company
shall make the certificates representing the Shares available for inspection
by the Underwriters in New York, New York, not later than 2:00 P.M., New York
City time, on the business day prior to the Delivery Date.
5. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees:
(a) To prepare the Prospectus in a form approved by the
Underwriters and to file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than the Commission's close of business on the
second business day following the execution and delivery of this Agreement;
to make no further amendment or any supplement to the Registration Statement
or to the Prospectus except as permitted herein; to advise the Underwriters,
promptly after it receives notice thereof, of the time when any amendment to
the Registration Statement has been filed or becomes effective or any
supplement to
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the Prospectus or any amended Prospectus has been filed and to furnish the
Underwriters with copies thereof; to advise the Underwriters, promptly after
it receives notice thereof, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any preliminary
prospectus or the Prospectus, of the suspension of the qualification of the
Shares for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration Statement or
the Prospectus or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or suspending the use
of any preliminary prospectus or the Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Underwriters upon their
request and to counsel for the Underwriters a signed copy of the Registration
Statement as originally filed with the Commission, and each amendment thereto
filed with the Commission, including all consents and exhibits filed
therewith;
(c) To deliver promptly to the Underwriters such number of the
following documents as the Underwriters shall request: (i) conformed copies
of the Registration Statement as originally filed with the Commission and
each amendment thereto (in each case excluding exhibits other than this
Agreement and the computation of per share earnings) and (ii) each
preliminary prospectus, the Prospectus and any amended or supplemented
Prospectus; and, if the delivery of a prospectus is required at any time
prior to the expiration of nine months after the Effective Time in connection
with the offering or sale of the Shares and if at such time any event shall
have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason it shall
be necessary in the opinion of counsel to the Underwriters during such same
period to amend or supplement the Prospectus in order to comply with the
Securities Act, to notify the Underwriters and, upon their request, to
prepare and furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Underwriters may from time to time
reasonably request of an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such compliance, and
in case any Underwriter is required to deliver a prospectus in connection
with sales of any of the Shares at any time nine months or more after the
Effective Time, upon the request but at the expense of such Underwriter, to
prepare and deliver to such Underwriter as many copies as such Underwriter
may request of an amended or supplemented Prospectus complying with section
10(a)(3) of the Securities Act;
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Page 12
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the Prospectus
that may, in the judgment of the Company or the Underwriters, be required by
the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission (i) any amendment to the
Registration Statement or supplement to the Prospectus or (ii) any Prospectus
pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof
to the Underwriters and counsel for the Underwriters and obtain the consent
of the Underwriters to the filing;
(f) As soon as practicable after the Effective Date, but in any
event not later than 45 days after the end of its fiscal quarter in which the
first anniversary date of the Effective Date occurs, to make generally
available to the Company's security holders and to deliver to the
Underwriters an earnings statement of the Company and its subsidiaries (which
need not be audited) complying with Section 11(a) of the Securities Act and
the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to
furnish to the Underwriters copies of all materials furnished by the Company
to its shareholders and all public reports and all reports and financial
statements furnished by the Company to the principal national securities
exchange upon which the Series A Preferred Shares may be listed pursuant to
requirements of or agreements with such exchange or to the Commission
pursuant to the Exchange Act or any rule or regulation of the Commission
thereunder;
(h) Promptly from time to time, to take such action as the
Underwriters may reasonably request to qualify the Shares for offering and
sale under the securities laws of such jurisdictions as the Underwriters may
request and to comply with such laws so as to permit the continuance of sales
and dealings therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Shares; except that in no event shall the
Company be obligated in connection therewith to qualify as a foreign
corporation, or to execute a general consent to service of process;
(i) For a period of 90 days from the date of the prospectus
supplement relating to the Shares, not to offer for sale, sell or otherwise
dispose of, directly or indirectly, any Series A Preferred Shares or sell or
grant options, rights or warrants with respect to any Series A Preferred
Shares, otherwise than in accordance with this Agreement or as contemplated
in the Prospectus or without the prior written consent of the Lehman Brothers
Inc.;
(j) To apply the net proceeds from the sale of the Shares
<PAGE>
Page 13
being sold by the Company as set forth in the Prospectus;
(k) To take such steps as shall be necessary to ensure that neither
the Company nor any subsidiary shall become an "investment company" within
the meaning of such term under the Investment Company Act of 1940 and the
rules and regulations of the Commission thereunder;
(l) During the period of 180 days commencing on the date hereof,
the Company will not, directly or indirectly, take any action designed to or
which will constitute or which might reasonably be expected to cause or
result in the manipulation or stabilization of the price of the Series A
Preferred Shares; and
(m) To file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
for so long as the delivery of a prospectus is required in connection with
the offering or sale of the Shares.
6. EXPENSES. The Company agrees to pay (a) the costs incident to the
authorization, issuance, sale and delivery of the Shares and any taxes
payable in that connection; (b) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement
and any amendments and exhibits thereto; (c) the costs of distributing the
Registration Statement as originally filed and each amendment thereto and any
post-effective amendments thereof (including, in each case, exhibits), any
preliminary prospectus, the Prospectus and any amendment or supplement to the
Prospectus, all as provided in this Agreement; (d) the costs of reproducing
and distributing this Agreement; (e) the costs of distributing the terms of
the agreement relating to the organization of the underwriting syndicate and
selling group to the members thereof by mail, telex or other means of
communication; (f) the filing fees incident to securing any required review
by the National Association of Securities Dealers, Inc. of the terms of sale
of the Shares; (g) any applicable listing or other fees; (h) the fees and
expenses of qualifying the Shares under the securities laws of the several
jurisdictions as provided in Section 5(h) and of preparing, printing and
distributing a Blue Sky Memorandum (including related fees and expenses of
counsel to the Underwriters); and (i) all other costs and expenses incident
to the performance of the obligations of the Company under this Agreement;
PROVIDED that, except as provided in this Section 6, Section 8 and Section
11, the Underwriters shall pay their own costs and expenses, including the
costs and expenses of their counsel, any transfer taxes on the Shares which
they may sell and the expenses of advertising any offering of the Shares made
by the Underwriters.
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Page 14
7. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The respective obligations
of the Underwriters hereunder are subject to the accuracy, when made and on
the Delivery Date, of the representations and warranties of the Company
contained herein, to the performance by the Company of its obligations
hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission
in accordance with Section 5(a); no stop order suspending the effectiveness
of the Registration Statement or any part thereof shall have been issued and
no proceeding for that purpose shall have been initiated or threatened by the
Commission; and any request of the Commission for inclusion of additional
information in the Registration Statement or the Prospectus or otherwise
shall have been complied with.
(b) No Underwriter shall not have been advised by the Company nor
shall it have discovered and disclosed to the Company on or prior to the
Delivery Date that the Registration Statement or the Prospectus or any
amendment or supplement thereto contains an untrue statement of a fact which,
in your opinion or in the opinion of Skadden, Arps, Slate, Meagher & Flom
LLP, counsel for the Underwriters, is material or omits to state a fact
which, in the opinion of such counsel, is material and is required to be
stated therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Shares, the
Registration Statement and the Prospectus, and all other legal matters
relating to this Agreement and the transactions contemplated hereby shall be
satisfactory in all respects to counsel for the Underwriters, and the Company
shall have furnished to such counsel all documents and information that they
may reasonably request to enable them to pass upon such matters.
(d) Ungaretti & Harris shall have furnished to the Underwriters its
written opinion, as counsel to the Company, addressed to the Underwriters and
dated the Delivery Date, in form and substance satisfactory to the
Underwriters, to the effect that:
(i) Each of the Company and its subsidiaries has been
duly incorporated and is validly existing and in good standing under
the laws of their respective jurisdictions of organization, each is
duly qualified to transact business as a foreign corporation and is in
good standing under the laws of all other jurisdictions in which the
laws of such jurisdictions require such qualification, except where
the failure to be so qualified does not amount to a material
liability
<PAGE>
Page 15
or disability to the Company and the subsidiaries, taken as a whole,
and each has all power and authority necessary to own or lease its
properties and conduct its business as described in the Registration
Statement and the Prospectus;
(ii) The Company has an authorized capitalization as
set forth in the Prospectus, and all of the issued shares of capital
stock of the Company have been duly and validly authorized and issued,
are fully paid and non-assessable and conform to the description
thereof contained in the Prospectus; and all of the issued shares of
capital stock of each subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable and,
except for CenterPoint Realty Services Corporation, an Illinois
corporation, and its subsidiaries, are majority-owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims;
(iii) The unissued Shares to be issued and sold by the
Company to the Underwriters and the Articles Supplementary have been
duly and validly authorized and, when the Shares are issued and
delivered against payment therefor, the Shares will be duly and
validly issued, fully paid and non-assessable and the holders thereof
will be entitled to the benefit of the terms contained in the Articles
Supplementary; and the Shares and the Articles Supplementary conform
to the descriptions thereof contained in the Prospectus;
(iv) The Registration Statement was declared effective
under the Securities Act as of the date and time specified in such
opinion, and, to our knowledge after due inquiry, 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 proceeding for that purpose have been instituted or threatened
or are contemplated by the Commission;
(v) Except as described in the Prospectus, there are
no preemptive rights to subscribe for or to purchase, nor any
restriction upon the voting or transfer of, any Shares pursuant to the
Company's declaration of trust or by-laws or any agreement or other
instrument known to such counsel;
(vi) To the best of such counsel's knowledge, (A)
there are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any
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Page 16
property or assets of the Company or any of its subsidiaries is the
subject which, if determined adversely to the Company or any of its
subsidiaries, might have a material adverse effect on the
consolidated financial position, stockholders' equity, results of
operations, business or prospects of the Company and its
subsidiaries, and (B) no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(vii) The Registration Statement and the Prospectus,
including the documents incorporated by reference in the Prospectus,
(in each case, not including the financial statements and related
schedules therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of
the Securities Act or the Exchange Act and the Rules and Regulations
thereunder;
(viii) This Agreement has been duly authorized,
executed and delivered by the Company;
(ix) The statements contained in the Prospectus under
the captions "Description of Series A Preferred Shares", "Federal
Income Tax Considerations", "Description of Debt Securities",
"Description of Shares of Beneficial Interest", "Description of
Securities Warrants", "Certain Provisions of Maryland Law and of the
Company's Declaration of Trust and Bylaws" and "Federal Income Tax
Considerations Relating to the Company's REIT Election", in each case
insofar as they constitute summaries of legal matters, documents or
proceedings, constitute a fair summary thereof and the opinion of such
counsel filed as Exhibit 8 to the Registration Statement is confirmed
and the Underwriters may rely upon such opinion as if it were
addressed to them;
(x) To the best of such counsel's knowledge, 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 thereunder which
have not been described or filed as exhibits to the Registration
Statement or incorporated therein by reference as permitted by the
Rules and Regulations;
(xi) Except as disclosed in the Registration
Statement, to the best of such counsel's knowledge, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to
<PAGE>
Page 17
file a registration statement under the Securities Act with respect
to any securities of the Company owned or to be owned by such
person or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or in
any securities being registered pursuant to any other registration
statement filed by the Company under the Securities Act;
(xii) Neither the Company nor any subsidiary 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;
(xiii) The issue and sale of the Shares being sold
pursuant to this Agreement and the compliance by the Company and its
subsidiaries with all of the provisions of this Agreement and the
consummation of the transactions contemplated hereby have been 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 indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument known to such counsel 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 by-laws of the Company or any of its
subsidiaries or any statute or any order, rule or regulation known to
such counsel of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of
their properties or assets; and, except for the registration of the
Shares under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under the Exchange Act and applicable state securities laws in
connection with the purchase and distribution of the Shares by the
Underwriters, no consent, approval, authorization or order of, or
filing or registration with, any such court or governmental agency or
body was or is required for the execution, delivery and performance of
this Agreement by the Company and the consummation of the transactions
contemplated hereby;
In rendering such opinion, such counsel may rely as to matters of Maryland law
on the opinion of Gordon, Feinblatt, Rothman, Hoffberger & Hollander, LLC,
<PAGE>
Page 18
which opinion shall be in form and substance satisfactory to counsel for the
Underwriters, PROVIDED that such counsel shall state that it believes that
both the Underwriters and it are justified in relying upon such opinion.
Such counsel shall also have furnished to the Underwriters a written
statement, addressed to the Underwriters and dated the Delivery Date, in form
and substance reasonably satisfactory to the Underwriters, 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
Delivery Date, contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary in order
to make the statements therein not misleading, or that the Prospectus, as of
the Delivery Date and at the time such Prospectus was issued, contains any
untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(e) Skadden, Arps, Slate, Meagher & Flom LLP shall have furnished
to the Underwriters its written opinion, as counsel to the Underwriters,
addressed to the Underwriters and dated the Delivery Date, in form and
substance satisfactory to the Underwriters. In giving its opinion, Skadden,
Arps, Slate, Meagher & Flom LLP may rely as to matters of Maryland law on the
opinion of Gordon, Feinblatt, Rothman, Hoffberger & Hollander, LLC, which
opinion shall be in form and substance satisfactory to counsel for the
Underwriters. Skadden, Arps, Slate, Meagher & Flom LLP shall also have
furnished to the Underwriters a written statement, addressed to the
Underwriters and dated the Delivery Date, in form and substance satisfactory
to the Underwriters, 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 Delivery Date, contained any untrue
statement of a material fact or omitted to state a material fact required to
be stated therein or necessary in order to make the statements therein not
misleading, or that the Prospectus, as of the Delivery Date and at the time
such Prospectus was issued, contains any untrue statement of a material fact
or omits to state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(f) The Company shall have furnished to the Underwriters a letter
(the "bring-down letter") of Coopers & Lybrand, addressed to the Underwriters
and dated the Delivery Date (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in compliance
with the applicable requirements relating to the qualification of accountants
under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the
date of the bring-down letter (or, with respect to matters involving
<PAGE>
Page 19
changes or developments since the respective dates as of which specified
financial information is given or incorporated by reference in the
Prospectus, as of a date not more than five days prior to the date of the
bring-down letter), the conclusions and findings of such firm with respect to
the financial information and other matters covered by its letter (the
"initial letter") delivered to the Underwriters concurrently with the
execution of this Agreement and (iii) confirming in all material respects the
conclusions and findings set forth in the initial letter.
(g) The Company shall have furnished to the Underwriters a
certificate, dated the Delivery Date, of its Chairman of the Board, its
President or a Vice President and its chief financial officer stating that:
(i) The representations, warranties and agreements of
the Company in Section 1 are true and correct as of the Delivery Date;
the Company has complied with all its agreements contained herein; and
the conditions set forth in Sections 7(a) and 7(h) have been
fulfilled;
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued and, to the best of each such
officer's knowledge, no proceeding for that purpose is pending or
threatened by the Commission;
(iii) All filings required by Rule 424(b) of the Rules
and Regulations have been made; and
(iv) They have carefully examined the Registration
Statement and the Prospectus and, in their opinion (A) as of the
Effective Date, the Registration Statement and Prospectus did not
include any untrue statement of a material fact and did not omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and (B) since the
Effective Date no event has occurred which should have been set forth
in a supplement or amendment to the Registration Statement or the
Prospectus which has not been so set forth.
(h) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included
in the Prospectus any loss or interference with its business from fire,
explosion, flood, earthquake or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus;
(ii) since such date there shall not have been any change in the capital
stock or long-term debt of the
<PAGE>
Page 20
Company or any of its subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of operations
of the Company and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus, or (iii) trading in the Series A Preferred
Shares has not been suspended by the Commission or the New York Stock
Exchange (the "NYSE"), the effect of which, in any such case described in
clause (i), (ii) or (iii), is, in the judgment of the Underwriters, so
material and adverse as to make it impracticable or inadvisable to proceed
with the public offering or the delivery of the Shares being delivered on the
Delivery Date on the terms and in the manner contemplated in the Prospectus.
(i) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in securities
generally on the NYSE, the American Stock Exchange or the over-the-counter
market shall have been suspended or minimum prices shall have been
established on either of such exchanges or such market by the Commission, by
such exchange or by any other regulatory body or governmental authority
having jurisdiction, (ii) a banking moratorium shall have been declared by
Federal or state authorities, (iii) the United States shall have become
engaged in hostilities, there shall have been an escalation in hostilities
involving the United States or there shall have been a declaration of a
national emergency or war by the United States or (iv) there shall have
occurred such a material adverse change in general economic, political or
financial conditions (or the effect of international conditions on the
financial markets in the United States shall be such) as, in the case of
clause (iv), to make it, in the judgment of a majority of interest of the
several Underwriters, impractical or inadvisable to proceed with the public
offering or delivery of the Shares being delivered on the Delivery Date on
the terms and in the manner contemplated in the Prospectus.
(j) The Company has filed an application with the NYSE to list the
Shares thereon.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance satisfactory to counsel
for the Underwriters. The Company shall furnish to you conformed copies of such
opinions, certificates, letters and other documents in such number as you shall
reasonably request. If any of the conditions specified in this Section 7 shall
not have been fulfilled when and as required by this Agreement, the Agreement
and all obligations of the Underwriters hereunder may be cancelled at, or at any
time prior to, the Delivery Date, by you. Any such cancellation shall be
without liability of the Underwriters to the Company. Notice of such
cancellation shall be given the Company in writing, or by telegraph or telephone
and confirmed in
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writing.
8. INDEMNIFICATION AND CONTRIBUTION
(a) The Company shall indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of the Securities Act from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof (including, but
not limited to, any loss, claim, damage, liability or action relating to
purchases and sales of Shares), to which that Underwriter or controlling
person may become subject, under the Securities Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is based
upon, (i) any untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus, the Registration Statement or the
Prospectus or in any amendment or supplement thereto or (ii) the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and shall
reimburse each Underwriter and each such controlling person promptly upon
demand for any legal or other expenses reasonably incurred by that
Underwriter or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred; PROVIDED, HOWEVER, that
the Company shall not be liable in any such case to the extent that any such
loss, claim, damage, liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement or omission or alleged omission
made in any preliminary prospectus, the Registration Statement or the
Prospectus or in any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by or on behalf
of any Underwriter specifically for inclusion therein. The foregoing
indemnity agreement is in addition to any liability which the Company may
otherwise have to any Underwriter or to any controlling person of that
Underwriter.
(b) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless the Company, each of its directors (including any
person who, with his or her consent, is named in the Registration Statement
as about to become a director of the Company), each of its officers who
signed the Registration Statement and each person, if any, who controls the
Company within the meaning of the Securities Act, from and against any loss,
claim, damage or liability, joint or several, or any action in respect
thereof, to which the Company or any such director, officer or controlling
person may become subject, under the Securities Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is based
upon, (i) any untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus, the Registration Statement or the
Prospectus or in any amendment or supplement thereto or (ii) the omission or
alleged omission to state therein a
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Page 22
material fact required to be stated therein or necessary to make the
statements therein not misleading, but in each case only to the extent that
the untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by or on behalf of that Underwriter specifically for
inclusion therein, and shall reimburse the Company and any such director,
officer or controlling person for any legal or other expenses reasonably
incurred by the Company or any such director, officer or controlling person
in connection with investigating or defending or preparing to defend against
any such loss, claim, damage, liability or action as such expenses are
incurred. The foregoing indemnity agreement is in addition to any liability
which any Underwriter may otherwise have to the Company or any such director,
officer or controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; PROVIDED, HOWEVER,
that the failure to notify the indemnifying party shall not relieve it from
any liability which it may have under this Section 8 except to the extent it
has been materially prejudiced by such failure and, PROVIDED FURTHER, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have to an indemnified party otherwise than under this
Section 8. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the
extent that it wishes, jointly with any other similarly notified indemnifying
party, to assume the defense thereof with counsel satisfactory to the
indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the indemnified party
under this Section 8 for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense thereof other than
reasonable costs of investigation; PROVIDED, HOWEVER, that the Underwriters
shall have the right to employ counsel to represent jointly the Underwriters
and controlling persons who may be subject to liability arising out of any
claim in respect of which indemnity may be sought by the Underwriters against
the Company under this Section 8 if, in the reasonable judgment of the
Underwriters, it is advisable for the Underwriters and controlling persons to
be jointly represented by separate counsel, and in that event the fees and
expenses of such separate counsel shall be paid by the Company.
(d) If the indemnification provided for in this Section 8 shall
for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 8(a) or 8(b) in respect of any loss, claim,
damage or liability, or any action in respect thereof, referred to therein,
then each indemnifying party
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Page 23
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 Underwriters on the other from the
offering of the Shares or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law or if the indemnified party failed to give
the notice required under Section 8(c), in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and the Underwriters
on the other with respect to the statements or omissions which resulted in
such loss, claim, damage or liability, or action in respect thereof, as well
as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters 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 Shares purchased under this
Agreement (before deducting expenses) received by the Company bear to the
amount equal to the difference between the aggregate price for which the
Underwriters resell the Shares and the total net proceeds from the offering
of the Shares purchased under this Agreement (before deducting expenses)
received by the Company. 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 Underwriters, 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 Underwriters agree
that it would not be just and equitable if contributions pursuant to this
Section 8(d) were to be determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 8(d) shall be
deemed to include, for purposes of this Section 8(d), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8(d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such
Underwriter has otherwise paid or become liable to pay by reason of any
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
The Underwriters' obligations to contribute as provided in this
Section 8(d) are several in
<PAGE>
Page 24
proportion to their respective underwriting obligations and not joint.
(e) The Underwriters severally confirm that the statements with
respect to the public offering of the Shares set forth on the cover page of,
and under the caption "Underwriting" in, the Prospectus are correct and
constitute the only information furnished in writing to the Company by or on
behalf of the Underwriters specifically for inclusion in the Registration
Statement and the Prospectus.
9. DEFAULTING UNDERWRITERS. If, on the Delivery Date, any
Underwriter defaults in the performance of its obligations under this
Agreement, the remaining non-defaulting Underwriters shall be obligated to
purchase the Shares which the defaulting Underwriter agreed but failed to
purchase on the Delivery Date in the respective proportions which the number
of Shares set opposite the name of each remaining non-defaulting Underwriter
in Schedule I hereto bears to the total number of Shares set opposite the
names of all the remaining non-defaulting Underwriters in Schedule I hereto;
PROVIDED, HOWEVER, that the remaining non-defaulting Underwriters shall not
be obligated to purchase any of the Shares on the Delivery Date if the total
number of Shares which the defaulting Underwriter or Underwriters agreed but
failed to purchase on such date exceeds 9.09% of the total number of Shares
to be purchased on the Delivery Date, and any remaining non-defaulting
Underwriter shall not be obligated to purchase more than 110% of the number
of Shares which it agreed to purchase on the Delivery Date pursuant to the
terms of Section 2. If the foregoing maximums are exceeded, the remaining
non-defaulting Underwriters, or those other underwriters satisfactory to the
Underwriters who so agree, shall have the right, but shall not be obligated,
to purchase, in such proportion as may be agreed upon among them, all the
Shares to be purchased on the Delivery Date. If the remaining Underwriters
or other underwriters satisfactory to the Underwriters do not elect to
purchase the shares which the defaulting Underwriter or Underwriters agreed
but failed to purchase on the Delivery Date, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the
Company, except that the Company and the Underwriters will continue to be
liable for the payment of expenses to the extent set forth in Sections 6, 8
and 11. As used in this Agreement, the term "Underwriter" includes, for all
purposes of this Agreement unless the context requires otherwise, any party
not listed in Schedule I hereto who, pursuant to this Section 9, purchases
Shares which a defaulting Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of
any liability it may have to the Company for damages caused by its default.
If other underwriters are obligated or agree to purchase the Shares of a
defaulting or withdrawing Underwriter, either the Underwriters or the Company
may postpone the Delivery Date for up to seven full business days in order to
effect any changes that in the opinion of counsel for the Company or counsel
for the Underwriters may be necessary in the Registration Statement, the
Prospectus or in any other document or arrangement.
10. TERMINATION. The obligations of the Underwriters hereunder may
be terminated by the Underwriters by notice given to and received by the
Company prior to delivery of and payment for the Shares, if, prior to that
time, any of the events described in Sections 7(h) or 7(i) shall have
occurred or if the Underwriters shall decline to purchase the Shares for any
reason permitted under this Agreement.
11. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If (a) the Company
shall fail to tender the Shares for delivery to the Underwriters unless for
any reason permitted under this Agreement or (b) the Underwriters shall
decline to purchase the Shares for any reason permitted under this Agreement
(including the termination of this Agreement pursuant to Section 10), the
Company shall reimburse the Underwriters for the fees and expenses of their
counsel and for
<PAGE>
Page 25
such other out-of-pocket expenses as shall have been incurred by them in
connection with this Agreement and the proposed purchase of the Shares, and
upon demand the Company shall pay the full amount thereof to the
Underwriters. If this Agreement is terminated pursuant to Section 9 by
reason of the default of one or more Underwriters, the Company shall not be
obligated to reimburse any defaulting Underwriter on account of these
expenses.
12. NOTICES, ETC. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by
mail, telex or facsimile transmission to Lehman Brothers Inc., 3 World
Financial Center, New York, New York 10285-1100, Attention: Syndicate
Registration Department (Fax: 212-528-8822).
(b) if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in
the Registration Statement, Attention: President (Fax: 312-456-7696).
Any such statements, requests, notices or agreements shall take
effect at the time of receipt thereof.
The Company shall be entitled to act and rely upon any request,
consent, notice or agreement given or made on behalf of the Underwriters by
Lehman Brothers Inc.
13. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the Company,
and their respective successors. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except that (A) the
representations, warranties, indemnities and agreements of the Company
contained in this Agreement shall also be deemed to be for the benefit of the
person or persons, if any, who control any Underwriter within the meaning of
Section 15 of the Securities Act and (B) the indemnity agreement of the
Underwriters contained in Section 8(b) of this Agreement shall be deemed to
be for the benefit of directors of the Company, officers of the Company who
have signed the Registration Statement and any person controlling the Company
within the meaning of Section 15 of the Securities Act. Nothing in this
Agreement is intended or shall be construed to give any person, other than
the persons referred to in this Section 13, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision
contained herein.
14. SURVIVAL. The respective indemnities, representations,
warranties and agreements of the Company and the Underwriters contained in
this
<PAGE>
Page 26
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the Shares and shall
remain in full force and effect, regardless of any investigation made by or
on behalf of any of them or any person controlling any of them.
15. DEFINITION OF THE TERMS "BUSINESS DAY" AND "SUBSIDIARY". For
purposes of this Agreement, (a) "business day" means any day on which the New
York Stock Exchange, Inc. is open for trading and (b) "subsidiary" has the
meaning set forth in Rule 405 of the Rules and Regulations.
16. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of New York.
17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
18. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
<PAGE>
Page 27
If the foregoing correctly sets forth the agreement between the
Company and the Underwriters, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
CENTERPOINT PROPERTIES TRUST
By:
Name: Paul S. Fisher
Title: Executive Vice President,
Secretary, Chief Financial Officer
and General Counsel
Accepted:
LEHMAN BROTHERS INC.
A.G. EDWARDS & SONS, INC.
PAINEWEBBER INCORPORATED
THE ROBINSON-HUMPHREY COMPANY, L.L.C.
SMITH BARNEY INC.
WHEAT, FIRST SECURITIES, INC.
By: LEHMAN BROTHERS INC.
By:
Name:
Title:
<PAGE>
Page 28
SCHEDULE I
Number of
Underwriters Shares
- ------------ -------
Lehman Brothers Inc. 410,000
A.G. Edwards & Sons, Inc. 408,000
PaineWebber Incorporated 408,000
The Robinson-Humphrey Company, L.L.C. 408,000
Smith Barney Inc. 408,000
Wheat, First Securities, Inc.. 408,000
Robert W. Baird & Co. Incorporated 40,000
J.C. Bradford & Co. 40,000
Everen Securities, Inc. 40,000
Legg Mason Wood Walker, Incorporated 40,000
McDonald & Company Securities, Inc. 40,000
Piper Jaffray Inc. 40,000
SBC Warburg Dillon Read Inc. 40,000
Advest, Inc. 15,000
Cowen & Company 15,000
Craigie Incorporated 15,000
Dain Bosworth Incorporated 15,000
Davenport & Co. of Virginia, Inc. 15,000
Fahnestock & Co. Inc. 15,000
First Albany Corporation 15,000
First Southwest Company 15,000
Gruntal & Co., L.L.C. 15,000
Interstate/Johnson Lane Corporation 15,000
Janney Montgomery Scott Inc. 15,000
Mesirow Financial, Inc. 15,000
Morgan Keegan & Company, Inc. 15,000
The Ohio Company 15,000
Parker/Hunter Incorporated 15,000
Principal Financial Securities, Inc. 15,000
Raymond James & Associates, Inc. 15,000
U.S. Clearing Corp. 15,000
---------
Total 3,000,000
---------
<PAGE>
Ungaretti & Harris
3500 Three First National Plaza
Chicago, Illinois 60602
(312) 977-4400
November 4, 1997
CenterPoint Properties Trust
401 North Michigan Avenue
Suite 3000
Chicago, Illinois 60611
Ladies and Gentlemen:
We have acted as counsel to CenterPoint Properties Trust, a Maryland real estate
investment trust (the "Company"), in connection with the preparation of (i) a
Registration Statement on Form S-3 of the Company filed with the Securities and
Exchange Commission (the "Commission") on December 19, 1996 and declared
effective by the Commission on January 6, 1997 as amended by a Post-Effective
Amendment No. 1 filed with the Commission of October 15, 1997 and declared
effective by the Commission on October 23, 1997 (the "Registration Statement"),
relating to the registration, under Rule 415 of the Securities Act of 1933, as
amended (the "Securities Act"), of up to $200,000,000 in securities of the
Company; and (ii) a supplement dated November 4, 1997 (the "Supplement") to the
Registration Statement, relating to the issuance and sale of 3,000,000 Series A
Preferred Shares of beneficial interest of the Company, $.001 par value per
share (the "Series A Preferred Shares").
In this regard, we have examined:
a. the declaration of trust, by-laws and organizational documents of the
Company;
b. certain resolutions adopted by the Company's Board of Trustees;
c. the Registration Statement and Supplement; and
d. such other documents as we have deemed relevant for the purpose of
rendering the opinions set forth herein, including certifications as to
certain matters of fact by responsible officers of the Company and by
governmental authorities.
We have assumed the authenticity of all documents submitted to us as originals
and the conformity to original documents of all documents submitted to us as
copies.
<PAGE>
CenterPoint Properties Trust
November 4, 1997
Page -2-
Based upon the foregoing, we are of the opinion that the Series A Preferred
Shares being sold pursuant to the Registration Statement and Supplement, if and
when issued under the circumstances contemplated by the Supplement, will be
validly issued, fully paid and nonassessable.
We are members of the Bar of the State of Illinois. Our opinion is limited to
the laws of the State of Illinois and the general laws of the United States of
America. Insofar as our opinion relates to matters of Maryland law, we have
relied on the opinion dated the date hereof of Gordon, Feinblatt, Rothman,
Hoffberger & Hollander, LLC, a copy of which is attached hereto.
We consent to the use of this opinion as an Exhibit to the Registration
Statement and to the reference to our firm in the Prospectus that is part of the
Registration Statement. By giving such consent, we do not hereby admit that we
are in the category of persons whose consent is required under Section 7 of the
Securities Act.
Very truly yours,
Ungaretti & Harris
<PAGE>
GORDON, FEINBLATT, ROTHMAN, HOFFBERGER & HOLLANDER, LLC
THE GARRETT BUILDING
233 EAST REDWOOD STREET
BALTIMORE, MARYLAND 21202
(410) 576-4000
November 4, 1997
CenterPoint Properties Trust
401 N. Michigan Avenue
Suite 3000
Chicago, Illinois 60611
Ladies and Gentlemen:
We have acted as special Maryland counsel to CenterPoint Properties Trust, a
Maryland real estate investment trust (the "Company"), in connection with the
preparation of (i) a Registration Statement on Form S-3 of the Company filed
with the Securities and Exchange Commission (the "Commission") on December
19, 1996 and declared effective by the Commission on January 6, 1997 as
amended by a Post-Effective Amendment No. 1 filed with the Commission of
October 15, 1997 and declared effective by the Commission on October 23, 1997
(the "Registration Statement"), relating to the registration, under Rule 415
of the Securities Act of 1933, as amended (the "Securities Act"), of up to
$200,000,000 in securities of the Company; and (ii) a supplement dated
November 4, 1997 (the "Supplement") to the Registration Statement, relating
to the issuance and sale of 3,000,000 Series A Preferred Shares of beneficial
interest of the Company, $.001 par value per share (the "Series A Preferred
Shares").
In this regard, we have examined:
a. the declaration of trust, by-laws and organizational documents of the
Company;
b. certain resolutions adopted by the Company's Board of Trustees;
c. the Registration Statement and Supplement; and
d. such other documents as we have deemed relevant for the purpose of
rendering the opinions set forth herein, including certifications as to
certain matters of fact by responsible officers of the Company and by
governmental authorities.
<PAGE>
CenterPoint Properties Trust
November 4, 1997
Page -2-
Based upon the foregoing, we are of the opinion that the Series A Preferred
Shares being sold pursuant to the Registration Statement and Supplement, if and
when issued under the circumstances contemplated by the Supplement, will be
validly issued, fully paid and nonassessable.
We have assumed the authenticity of all documents submitted to us as
originals and the conformity to original documents of all documents submitted to
us as copies.
We are members of the Bar of the State of Maryland. Our opinion is
limited to the laws of the State of Maryland and the general laws of the
United States of America.
Very truly yours,
Gordon, Feinblatt, Rothman, Hoffberger &
Hollander, LLC
By: /s/ Edward E. Obstler
-----------------------
Edward E. Obstler, Member
<PAGE>
UNGARETTI & HARRIS
3500 THREE FIRST NATIONAL PLAZA
CHICAGO, ILLINOIS 60602
(312) 977-4400
November 4, 1997
CenterPoint Properties Trust
401 North Michigan Avenue
Suite 3000
Chicago, Illinois 60611
Ladies and Gentlemen:
You have requested our opinion as to whether CenterPoint Properties Trust, a
Maryland real estate investment trust (the "Company"), is qualified to be taxed
as a real estate investment trust ("REIT") under section 856 of the Internal
Revenue Code of 1986, as amended (the "Code").
In this connection, we have examined:
a. the declaration of trust, by-laws and organizational documents of the
Company;
b. the Company's Registration Statement on Form S-3 filed with the Securities
and Exchange Commission (the "Commission") on December 19, 1996 (File No.
333-18235), as amended by Post-Effective Amendment No. 1 filed with the
Commission on October 15, 1997 and declared effective on October 23, 1997
(the "Registration Statement");
c. the Preferred Shares Supplement dated November 4, 1997 (the "Preferred
Shares Supplement"); and
d. such other documents as we have deemed relevant for the purpose of
rendering the opinions set forth herein, including certifications as to
certain matters of fact by a responsible officer of the Company (the
"Officer's Certificate").
Based upon the foregoing, we are of the opinion that:
1. The Company is organized in conformity with the requirements for
qualification as a REIT under the Code.
<PAGE>
CenterPoint Properties Trust
November 4, 1997
Page -2-
2. 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 the Officer's Certificate, the Registration
Statement and the Preferred Shares Supplement, the Company will continue to
so qualify.
Our opinion as expressed herein is based upon the Code, applicable Treasury
regulations adopted thereunder, reported judicial decisions and rulings of the
Internal Revenue Service, all as of the date hereof. It should be noted that
whether the Company will qualify as a REIT under the Code in the current taxable
year and future taxable years will depend upon whether the Company continues to
meet the various qualification tests imposed under the Code through actual
annual operating results. We express no opinion as to whether the actual
results of the Company's operations for any such taxable year will satisfy such
requirements.
We consent to the use of this opinion as an Exhibit to the Registration
Statement.
Very truly yours,
Ungaretti & Harris
<PAGE>
EXHIBIT 12
CENTERPOINT PROPERTIES TRUST
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(DOLLARS IN THOUSANDS, EXCEPT RATIOS)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30, YEAR ENDED DECEMBER 31,
------------- ----------------------
1997 1996 1996 1995 1994 1993 1992
------- ------- ------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
Available earnings:
Net income (loss) $19,557 $11,169 $14,941 $ 8,212 $ 2,359 ($4,930) ($1,175)
Add interest expense (1) 9,264 8,647 11,731 12,985 12,157 4,111 2,638
------- ------- ------- ------- ------- ------- -------
Available earnings (loss)(2) $28,821 $19,816 $26,672 $21,197 $14,516 ($819) ($1,463)
------- ------- ------- ------- ------- ------- -------
Fixed Charges:
Interest expense $ 9,264 $ 8,647 $11,731 $12,985 $12,157 $4,111 $2,638
Capitalized interest 383 82 142 20 63 470 831
------- ------- ------- ------- ------- ------- -------
Total Fixed Charges $ 9,647 $ 8,729 $11,873 $13,005 $12,220 $4,581 $3,469
------- ------- ------- ------- ------- ------- -------
Ratio of earnings to
Fixed Charges (3) 2.99 2.27 2.25 1.63 1.19 -- --
------- ------- ------- ------- ------- ------- -------
</TABLE>
CENTERPOINT PROPERTIES TRUST
COMPUTATION OF RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
(DOLLARS IN THOUSANDS, EXCEPT RATIOS)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30, YEAR ENDED DECEMBER 31,
1997 1996 1996 1995 1994 1993 1992
------- ------- ------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
Available earnings:
Net income (loss) $19,557 $11,169 $14,941 $ 8,212 $ 2,359 ($4,930) ($1,175)
Add interest expense (1) 9,264 8,647 11,731 12,985 12,157 4,111 2,638
------- ------- ------- ------- ------- ------- -------
Available earnings (loss)(2) $28,821 $19,816 $26,672 $21,197 $14,516 ($819) ($1,463)
------- ------- ------- ------- ------- ------- -------
Fixed Charges:
Interest expense $ 9,264 $ 8,647 $11,731 $12,985 $12,157 $4,111 $2,638
Preferred stock dividend 947 947 1.002
Capitalized interest 383 82 142 20 63 470 831
------- ------- ------- ------- ------- ------- -------
Total Fixed Charges $ 9,647 $ 9,676 $12,820 $14,007 $12,220 $4,581 $3,469
------- ------- ------- ------- ------- ------- -------
Ratio of earnings to
Fixed Charges (3) 2.99 2.05 2.08 1.51 1.19 -- --
------- ------- ------- ------- ------- ------- -------
</TABLE>
- --------------------------------
NOTES:
(1) Interest expense includes amortization of debt expense.
(2) Interest portion of rental expense is not calculated because annual
rental expense for the Company is not significant.
(3) The ratio of earnings to fixed charges for the years ended December 31,
1992 and December 31, 1993, was less than one to one. The approximate
dollar amounts necessary to cover the deficiency in those periods were
as follows: 1993--$5,400 and 1992--$2,006.
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in registration statement
(No. 333-18235) on Form S-3 and Prospectus Supplement of our report dated
February 13, 1997, except for Notes 17 and 18, as to which the date is March
6, 1997 on our audits of the consolidated financial statements and financial
statement schedules of CenterPoint Properties Trust (formerly CenterPoint
Properties Corporation) and Subsidiaries as of December 31, 1996 and 1995 and
for each of the three years in the period ended December 31, 1996, which
report is included in the Annual Report on Form 10-K. We also consent to our
report dated September 30, 1996 on our audit of the combined statements of
revenue and certain expenses of the Related Party Properties for the three
years in the period ended December 31, 1995 and to our report dated October
15, 1996 on our audits of the individual and combined statements of revenue
and certain expenses of The Northlake Property and the Other Acquisition
Properties for the year ended December 31, 1995, which are included in the
Current Report on Form 8-K/A No. 1 filed November 27, 1996, and to our report
dated September 24, 1997 on our audit of the combined statement of revenues
and certain expenses of The Bedford Park Properties for the year ended
December 31, 1996, and to our report dated October 21, 1997 on our audit of
the statement of revenues and certain expenses of the Sears Property for the
year ended May 31, 1997, which are included in the Quarterly Report on Form
10-Q for the quarter ended September 30, 1997. We also consent to the
reference to our firm under the caption "Experts."
COOPERS & LYBRAND L.L.P.
Chicago, Illinois
November 4, 1997
