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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): February 27, 1997
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CenterPoint Properties Corporation
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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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N/A
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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 "Company")
filed a registration statement on Form S-3, Registration Statement No. 333-18235
(the "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, of up to an aggregate of $200,000,000 in
securities of the Company. The Registration Statement was a combined Prospectus
which also related to Registration Statement No. 33-93074. On January 6, 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 February 27, 1997, relating to the issuance and sale of up to 2,500,000
shares of the Company's common
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stock, $.001 par value per share (the "Common Stock Supplement"). In
connection with the filing of the Common Stock Supplement with the
Commission, the Company is filing certain exhibits as part of this Form 8-K.
See "Item 7. Financial Statements and Exhibits."
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits
1 Form of Underwriting Agreement among the Company and
Lehman Brothers Inc., Smith Barney Holdings Inc., A.G.
Edwards & Sons, Inc., McDonald & Company Securities, Inc.
and Wheat, First Securities, Inc. dated February 27,
1997, with respect to the issuance and sale by the
Company of up to 2,500,000 shares of the Company's common
stock.
5 Opinion Letter of Ungaretti & Harris regarding the
validity of the common stock.
8 Opinion Letter of Ungaretti & Harris regarding tax
matters.
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 CORPORATION
(Registrant)
Dated: February 27, 1997 By: /s/ John S. Gates, Jr.
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Its: PRESIDENT AND CHIEF
EXECUTIVE OFFICER
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2,250,000 Shares
CENTERPOINT PROPERTIES CORPORATION
UNDERWRITING AGREEMENT
Common Stock, $.001 par value per share
February 27, 1997
LEHMAN BROTHERS INC.
A.G. EDWARDS & SONS, INC.
SMITH BARNEY INC. MCDONALD & COMPANY SECURITIES, INC.
WHEAT, FIRST SECURITIES, INC.
c/o Lehman Brothers
Inc. 3 World Financial Center
New York, New York 10285
Dear Sirs:
CenterPoint Properties Corporation, a Maryland corporation (the
"Company"), proposes to sell 2,250,000 shares (the "Firm Stock") of the
Company's Common Stock, par value $.001 per share (the "Common Stock"). In
addition, the Company proposes to grant to the Underwriters named in Schedule
I hereto (the "Underwriters") an option to purchase up to an additional
250,000 shares of Common Stock on the terms and for the purposes set forth in
Section 2 (the "Option Stock"). The Firm Stock and the Option Stock, if
purchased, are hereinafter collectively called the "Stock." This is to
confirm the agreement concerning the purchase of the Stock from the Company
by the Underwriters.
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. The
Company represents, warrants and agrees that:
(a) Two registration statements (File Nos. 33-93074 and
333-18235) on Form S-3, and amendments thereto, with respect to the
securities registered thereunder (the "Shelf Securities") to be issued from
time to time have (i) 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
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Exchange Commission (the "Commission") promulgated thereunder, (ii) been
filed with the Commission under the Securities Act and (iii) become effective
under the Securities Act. Copies of such registration statements and the
amendments thereto have been delivered by the Company to you. As used in
this Agreement, "Effective Time" means the dates and the times as of which
such registration statements, 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 statements as
amended to the date of this Agreement are hereinafter referred to
collectively as the "Registration Statement" and the related prospectus
covering the Shelf Securities in the form first used to confirm sales of the
Stock is hereinafter referred to as the "Basic Prospectus." The Basic
Prospectus as supplemented by the prospectus supplement specifically relating
to the Stock in the form first filed pursuant to 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 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
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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 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 as
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foreign corporations in each jurisdiction in which their respective ownership
or lease of property or the conduct of their respective businesses requires
such qualification, and have all power and authority necessary to own or hold
their respective properties and to conduct the businesses in which they are
engaged; 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 of the Stock to be issued and sold by
the Company to the Underwriters hereunder have been duly and validly
authorized and, when issued and delivered against payment therefor as
provided herein, will be duly and validly issued, fully paid and
non-assessable; and the Stock will 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
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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
charter 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 Stock 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 Stock 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 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
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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
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under any of such leases; (v) except as described in the Prospectus, no
tenant under any of the leases pursuant to which any of the Company or its
subsidiaries leases properties has an option or right of first refusal to
purchase the premises under such lease; (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
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threatened or contemplated by governmental authorities or threatened by
others.
(p) There are no contracts or other documents which are
required to be described in the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act or by the Rules and Regulations
which have not been described in the Prospectus or filed as exhibits to the
Registration Statement or incorporated therein by reference as permitted by
the Rules and Regulations.
(q) No relationship, direct or indirect, exists between or
among the Company on the one hand, and the directors, officers or
stockholders of the Company on the other hand, which is required to be
described in the Prospectus which is not so described.
(r) No labor disturbance by the employees of the Company exists
or, to the knowledge of the Company, is imminent which might be expected to
have a material adverse effect on the consolidated financial position,
stockholders' equity, results of operations, business or prospects of the
Company and its subsidiaries.
(s) The Company is in compliance in all material respects with
all presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and published
interpretations thereunder ("ERISA"); 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
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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 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 charter 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
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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,
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
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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
inequity) and the execution, delivery and performance of such agreements do
not constitute a breach of, or default under, the charter 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.
(ac) 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 STOCK BY THE UNDERWRITERS. On the basis of the
representations and warranties
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contained in, and subject to the terms and 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
$29.85 per share the number of shares of the Firm Stock set opposite such
Underwriter's name in Schedule 1 hereto.
In addition, the Company grants to the Underwriters an option to
purchase up to 250,000 shares of the Option Stock at the purchase price set
forth above. Such option is granted solely for the purpose of covering
over-allotments in the sale of Firm Stock and is exercisable as provided in
Section 4 hereof. Shares of Option Stock shall be purchased severally for
the account of the Underwriters in proportion to the number of shares of Firm
Stock set opposite the name of such Underwriters in Schedule 1 hereto. The
respective purchase obligations of each Underwriter with respect to the
Option Stock shall be adjusted by Lehman Brothers Inc. so that no Underwriter
shall be obligated to purchase Option Stock other than in 100 share amounts.
The Company shall not be obligated to deliver any of the Stock to
be delivered on the First Delivery Date or the Second Delivery Date (as
hereinafter defined), as the case may be, except upon payment for all the
Stock to be purchased on such Delivery Date as provided herein.
3. OFFERING OF STOCK BY THE UNDERWRITERS. Upon authorization by
the Underwriters of the release of the Stock, the several Underwriters
propose to offer the Stock for sale upon the terms and conditions set forth
in the Prospectus.
4. DELIVERY OF AND PAYMENT FOR THE STOCK. Delivery of and payment
for the Firm Stock 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 "First Delivery Date." On the First Delivery Date, the Company
shall deliver or cause to be delivered certificates representing the Firm
Stock to the Underwriters against payment to or upon the order of the Company
of
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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 Firm Stock 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 First Delivery Date. For the
purpose of expediting the checking and packaging of the certificates for the
Firm Stock, the Company shall make the certificates representing the Firm
Stock 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
First Delivery Date.
At any time or from time to time on or before the 30th day after
the date of this Agreement (or, if such 30th day shall be a Saturday, Sunday
or holiday, on the next business day) the option granted in Section 2 may be
exercised by written notice being given to the Company by the Underwriters.
Such notice shall set forth the aggregate number of shares of Option Stock as
to which the option is being exercised, the names in which the shares of
Option Stock are to be registered, the denominations in which the shares of
Option Stock are to be issued and the date and time, as determined by the
Underwriters, when the shares of Option Stock are to be delivered, PROVIDED,
HOWEVER, that this date and time shall not be earlier than the First Delivery
Date nor earlier than the third business day after the date on which the
option shall have been exercised nor later than the fifth business day after
the date on which the option shall have been exercised. The dates and times
the shares of Option Stock are delivered are sometimes referred to as the
"Second Delivery Date" and the First Delivery Date and the Second Delivery
Date are sometimes each referred to as a "Delivery Date".
Delivery of and payment for the Option Stock shall be made at such
other place as shall be determined by agreement between the Underwriters and
the Company at 10:00 A.M., New York City time, on the Second Delivery Date.
On the Second Delivery Date, the Company shall deliver or cause to be
delivered the certificates representing the Option Stock to the Underwriters
against payment to or upon the order of the Company of the
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purchase price by certified or official bank check or checks payable in New
York Clearing House (next-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 Option Stock shall be registered in such names and in such
denominations as the Underwriters shall request in the aforesaid written
notice. For the purpose of expediting the checking and packaging of the
certificates for the Option Stock, the Company shall make the certificates
representing the Option Stock 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 Second 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 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 Stock 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;
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(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 Stock 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 Stock 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;
(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
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<PAGE>
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 Common Stock 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 Stock 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 Stock; 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;
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<PAGE>
(i) For a period of 90 days from the date of the prospectus
supplement relating to the Stock, not to offer for sale, sell or otherwise
dispose of, directly or indirectly, any shares of Common Stock (other than
the 1,500,000 shares of Common Stock issuable pursuant to the Company's Stock
Option Plan (the "Plan"), 150,000 shares of Common Stock issuable pursuant to
the restricted stock incentive plan, 75,000 shares of Common Stock issuable
pursuant to the directors' stock plan, 1,000,000 shares of Common Stock
issuable pursuant to the Company's dividend reinvestment and stock purchase
plan and the shares of Common Stock issuable upon conversion of the
Debentures) or sell or grant options, rights or warrants with respect to any
shares of Common Stock (other than the grant of options pursuant to the
Plan), 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 Stock 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
Common Stock; 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 Stock.
6. EXPENSES. The Company agrees to pay (a) the costs incident to
the authorization, issuance, sale and delivery of the Stock and any taxes
payable in that
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<PAGE>
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 Stock;
(g) any applicable listing or other fees; (h) the fees and expenses of
qualifying the Stock 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 Stock which they may
sell and the expenses of advertising any offering of the Stock made by the
Underwriters.
7. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when
made and on each 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
18
<PAGE>
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 such
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 Stock, 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 such Delivery Date, in form and substance satisfactory
to the Underwriters, to the effect that:
(i) 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 as foreign corporations in each jurisdiction in which their
respective ownership or lease of property or the conduct of their
respective businesses requires such qualification and have all power and
authority necessary to own or hold their respective properties and
conduct the businesses in which they are engaged;
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<PAGE>
(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 (including the shares of Stock being delivered on
such Delivery Date) 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, non-assessable and are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims;
(iii) Except as described in the Prospectus, there are
no preemptive or other rights to subscribe for or to purchase, nor any
restriction upon the voting or transfer of, any shares of the Stock
pursuant to the Company's charter or by-laws or any agreement or other
instrument known to such counsel;
(iv) 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 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;
(v) The Registration Statement was declared
effective under the Securities Act as of the date and time specified in
such opinion, the Prospectus was filed with the Commission pursuant to
the subparagraph of Rule 424(b) of the Rules and Regulations specified
in such opinion on the date specified therein and no stop order
suspending the effectiveness
20
<PAGE>
of the Registration Statement has been issued and, to such counsel's
knowledge, no proceeding for that purpose is pending or threatened by
the Commission;
(vi) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, (other than the financial statements and
related schedules therein, as to which such counsel need express no
opinion) 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;
(vii) The Registration Statement and the Prospectus
and any further amendments or supplements thereto made by the Company
prior to the Delivery Date (other than 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 and the Rules and Regulations;
(viii) The statements contained in the Prospectus under
the captions, "Description of Capital Stock", "Description of Securities
Warrants", "Certain Provisions of Maryland Law and the Company's Charter
and Bylaws", "Federal Income Tax Considerations Relating to the
Company's REIT Election" and "Taxation of Stockholders", 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;
(ix) 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 which have
21
<PAGE>
not been described or filed as exhibits to the Registration Statement
or incorporated therein by reference as permitted by the Rules and
Regulations;
(x) This Agreement has been duly authorized, executed
and delivered by the Company;
(xi) The issue and sale of the shares of Stock being
delivered on such Delivery Date by the Company 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 charter 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 Stock 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 Stock by
the Underwriters, no consent, approval, authorization or order of, or
filing or registration with, any such court
22
<PAGE>
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;
(xii) 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 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;
(xiii) 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;
In rendering such opinion, such counsel may rely as to matters of Maryland
law on the opinion of Gordon, Feinblatt, Rothman, Hoffberger & Hollander,
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 such 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
such 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 such Delivery Date and at the time such Prospectus was
issued, contains
23
<PAGE>
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 such 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,
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 such 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 such 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 such 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 such Delivery Date (i) confirming tha t 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 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
24
<PAGE>
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 Under writers a
certificate, dated such 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 such 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.
25
<PAGE>
(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 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 Common Stock has not been suspended by the Commission or the
New York Stock Exchange, 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 Stock being delivered on such
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 New York Stock Exchange, 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
26
<PAGE>
or delivery of the Stock being delivered on such Delivery Date on the terms
and in the manner contemplated in the Prospectus.
(j) The New York Stock Exchange, Inc. shall have approved the
Stock for listing, subject only to official notice of issuance.
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, each 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 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 Stock), 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
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<PAGE>
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 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
28
<PAGE>
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.
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(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 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 Stock 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 Stock 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 Stock and
the total net proceeds from the offering of the Stock 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
30
<PAGE>
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 Stock underwritten by it and
distributed to the public was 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 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 Stock 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 either 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 Stock which the defaulting Underwriter agreed but failed to
purchase on such Delivery Date in the respective proportions which the number
of shares of the Stock set opposite the name of each remaining non-defaulting
Underwriter in Schedule 1 hereto bears to the total number of shares of the
Firm Stock set opposite the names of all the remaining non-defaulting
Underwriters in Schedule 1 hereto; PROVIDED, HOWEVER, that the remaining
non-defaulting Underwriters shall not be obligated to purchase any of the
Stock on such Delivery Date if the total number of shares of the Stock which
the defaulting Underwriter or Underwriters agreed but failed to purchase
31
<PAGE>
on such date exceeds 9.09% of the total number of shares of the Stock to be
purchased on such Delivery Date, and any remaining non-defaulting Underwriter
shall not be obligated to purchase more than 110% of the number of shares of
the Stock which it agreed to purchase on such 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
Stock to be purchased on such 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 such Delivery Date, this Agreement (or, with
respect to the Second Delivery Date, the obligation of the Underwriters to
purchase, and of the Company to sell, the Option Stock) 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 1 hereto who, pursuant to this Section 9, purchases
Firm Stock which a defaulting Underwriter agreed but failed to purchase. 10
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 Stock of a
defaulting or withdrawing Underwriter, either the Underwriters or the Company
may postpone the First 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 Firm Stock, 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 Stock for any
reason permitted under this Agreement.
32
<PAGE>
11. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If (a) the Company
shall fail to tender the Stock for delivery to the Underwriters unless for
any reason permitted under this Agreement or (b) the Underwriters shall
decline to purchase the Stock 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 such other out-of-pocket expenses as shall have been incurred
by them in connection with this Agreement and the proposed purchase of the
Stock, 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
33
<PAGE>
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 Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall survive the delivery of and payment for the Stock 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.
34
<PAGE>
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
CORPORATION
By: /s/ Paul S. Fisher
-------------------------------
Name: Paul S. Fisher
Title: Executive Vice President,
Secretary, Chief Financial
Officer and General Counsel
Accepted:
LEHMAN BROTHERS INC.
A.G. EDWARDS & SONS, INC.
SMITH BARNEY INC.
MCDONALD & COMPANY SECURITIES, INC.
WHEAT, FIRST SECURITIES, INC.
By: LEHMAN BROTHERS INC.
By: /s/ Michael W. Reid
-------------------------------
Name: Michael W. Reid
Title: Managing Director
35
<PAGE>
SCHEDULE 1
Number of
Underwriters shares
- ------------ ---------
Lehman Brothers Inc. 495,000
A.G. Edwards & Sons, Inc. 495,000
Smith Barney Inc. 495,000
McDonald & Company Securities, Inc. 270,000
Wheat, First Securities, Inc. 495,000
---------
Total 2,250,000
---------
---------
<PAGE>
Ungaretti & Harris
3500 Three First National Plaza
Chicago, Illinois 60602
(312) 977-4400
February 27, 1997
CenterPoint Properties Corporation
401 North Michigan Avenue
Suite 3000
Chicago, Illinois 60611
Ladies and Gentlemen:
We have acted as counsel to CenterPoint Properties Corporation, a Maryland
corporation (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 (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 February 27, 1997 (the "Supplement") to the
Registration Statement, relating to the issuance and sale of 2,250,000 shares of
the Company's common stock, $.001 par value per share (the "Common Stock"), and
an option to purchase an additional 250,000 shares of Common Stock to cover any
over-allotments.
In this regard, we have examined:
a. the amended and restated articles of incorporation, by-laws and
organizational documents of the Company;
b. certain resolutions adopted by the Company's Board of Directors;
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.
Based upon the foregoing, we are of the opinion that the shares of Common Stock
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.
<PAGE>
CenterPoint Properties Corporation
February 27, 1997
Page -2-
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,
/s/ Ungaretti & Harris
- ----------------------
Ungaretti & Harris
<PAGE>
GORDON, FEINBLATT, ROTHMAN, HOFFBERGER & HOLLANDER, L.L.C.
The Garrett Building
233 East Redwood Street
Baltimore, Maryland 21202
February 27, 1997
Ungaretti & Harris
3500 Three First National Plaza
Chicago, Illinois 60602-4282
Ladies and Gentlemen:
We have acted as special Maryland counsel to your firm in connection
with your opinion of even date herewith to CenterPoint Properties Corporation,
a Maryland corporation (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 (the "Registration
Statement"), relating to the registration, under Rule 415 of the Securities Act
of 1933, as amended, of up to $200,000,000 in securities of the Company; and
(ii) a supplement dated February 27, 1997 (the "Supplement") to the Registration
Statement, relating to the issuance and sale of 2,250,000 shares of the
Company's common stock, $.001 par value per share (the "Common Stock"), and an
option to purchase an additional 250,000 shares of Common Stock to cover any
over-allotments.
In this regard, we have examined:
a. the amended and restated articles of
incorporation, by-laws and organizational
documents of the Company;
b. certain resolutions adopted by the Company's Board
of Directors;
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.
<PAGE>
LETTERHEAD
Ungaretti & Harris
February 27, 1997
Page 2
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.
Based upon the foregoing, we are of the opinion that the shares of
Common Stock 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 Maryland and our opinion
is limited to the laws of the State of Maryland.
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
February 27, 1997
CenterPoint Properties Corporation
401 North Michigan Avenue
Suite 3000
Chicago, Illinois 60611
Ladies and Gentlemen:
You have requested our opinion as to whether CenterPoint Properties
Corporation, a Maryland corporation (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 amended and restated articles of incorporation, 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 on December 19, 1996 (the "Registration Statement");
c. the Common Stock Supplement dated February 27, 1997 to be filed with the
Securities and Exchange Commission on March 3, 1997 (the "Common Stock
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.
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
<PAGE>
CenterPoint Properties Corporation
February 27, 1997
Page -2-
set forth in the Officer's Certificate, the Registration Statement and the
Common Stock 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,
/s/ Ungaretti & Harris
- ----------------------
Ungaretti & Harris
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in registration statements
(Nos. 33-93074 and 333-18235) on Form S-3 and Prospectus Supplement of our
reports dated March 8, 1996 on our audits of the consolidated financial
statements and financial statement schedules of CenterPoint Properties
Corporation and Subsidiaries as of December 31, 1995 and 1994 and for each of
the three years in the period ended December 31, 1995, 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. We also consent
to the reference to our firm under the caption "Experts."
/s/ Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
Chicago, Illinois
February 27, 1997
