<PAGE>
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): October 23, 1998
------------------
CenterPoint Properties Trust
-------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Maryland 1-12630 36-3910279
---------------------- -------------------- ---------------------
(State or other Commission File (I.R.S. Employer
jurisdiction Number Identification No.)
of incorporation)
1808 Swift Road, Oak Brook, Illinois 60523
------------------------------------------------------------------
(Address of principal executive offices)
Registrant's telephone number, including area code (630) 586-8000
---------------
------------------------------------------------------------------
(Former name or former address, if changed since last report.)
ITEM 5. OTHER EVENTS.
On April 3, 1998, CenterPoint Properties Trust (the "Company") filed a
registration statement on Form S-3, Registration Statement No. 333-49359 (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 (the "1933 Act"), of up to an aggregate of
$500,000,000 in common shares, preferred shares, debt securities and warrants
of the Company. On April 13, 1998, 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 October 23, 1998 (the "Supplement"), relating to the issuance and sale
from time to time of up to $250,000,000 aggregate principal amount of the
Company's Medium-Term Notes, Series A (the
<PAGE>
"Notes"). The Notes will be offered from time to time by the Company to
or through Lehman Brothers Inc., First Chicago Capital Markets, Inc. and
NationsBanc Montgomery Securities, LLC, as agents (the "Agents").
In connection with the filing of the Supplement with the Commission, the
Company is filing certain exhibits as part of this Form 8-K, including the
Distribution Agreement relating to such offering. See "Item 7. Exhibits."
ITEM 7. EXHIBITS.
(c) Exhibits
<TABLE>
<C> <S>
1.1 Form of Distribution Agreement dated October 23, 1998 between the
Company and the Agents.
1.2 Form of Calculation and Exchange Rate Agent Agreement between the
Company and U.S. Bank Trust National Association, as agent.
1.3 Form of Company Order to U.S. Bank Trust National Association, as
trustee (the "Trustee").
4.3 Form of Senior Securities Indenture (incorporated by reference
from the Company's Form S-3 Registration Statement (File No. 333-49359)).
4.7 Form of Second Supplemental Indenture dated as of October 23,
1998 between the Company and the Trustee.
5 Opinion Letter of Ungaretti & Harris regarding the validity of
the Notes.
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).
25 Statement of Eligibility of Trustee.
</TABLE>
<PAGE>
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: October 23, 1998 By: /s/ John S. Gates, Jr.
------------------------------------
John S. Gates, Jr.
President,
Chief Executive Officer and
Trustee
<PAGE>
U.S. $250,000,000*
Centerpoint Properties Trust
Medium-Term Notes
DISTRIBUTION AGREEMENT
October 23, 1998
Lehman Brothers Inc.
First Chicago Capital Markets, Inc.
NationsBanc Montgomery Securities, LLC
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"), confirms its agreement with you (each, an "Agent," and,
together, the "Agents") with respect to the issuance and sale by the Company
of up to an aggregate of $250,000,000* in gross proceeds of its Medium-Term
Notes Due Nine Months or More from Date of Issuance (the "Notes"). The Notes
are to be issued from time to time pursuant to an indenture, dated as of
April 7, 1998, as it may be supplemented or amended from time to time, by and
between the Company and U.S. Bank Trust National Association, as trustee (the
"Trustee"), as supplemented by the First Supplemental Indenture, dated as of
April 7, 1998, and the Second Supplemental Indenture, dated as of October 23,
1998, by and between the Company and the Trustee (collectively, the
"Indenture").
The Notes shall have the maturity ranges, applicable interest rates or
interest rate formulas, specified currency, issue price, redemption and
repayment provisions and other terms set forth in the Prospectus referred to
in Section 1(a) as it may be amended or supplemented from time to time,
including any supplement providing for the interest rate, maturity and other
terms of any Note (a "Pricing Supplement"). The Notes will be issued, and
the terms thereof established, from time to time, by the Company in
accordance with the Indenture and the procedures referred to below. This
Agreement shall only apply to sales of the Notes and not to sales of any
other securities or evidences of indebtedness of the Company and only on the
specific terms set forth herein.
Subject to the terms and conditions stated herein and to the
reservation by the Company of the right to sell its Notes directly on its own
behalf, the Company hereby (i) appoints the Agents, on a non-exclusive basis,
as the agents of the Company for the purpose of soliciting and receiving
offers to purchase Notes from the Company and (ii) agrees that whenever the
Company determines to sell Notes directly to the Agents as principals it will
enter into a separate agreement (each a "Purchase Agreement"). Each such
Purchase Agreement, whether oral (and confirmed in writing, which may be by
facsimile transmission) or in writing, shall be with respect to such
information (as applicable) as specified in Exhibit C hereto, relating to
such sale in accordance with Section 2(e) hereof.
- -------------------------------
* Or the U.S. dollar equivalent in certain specified foreign currencies or
currency units.
<PAGE>
Section 1. Representations and Warranties.
The Company represents and warrants to the Agents as of the date
hereof, as of the Closing Date (defined herein) and as of the times referred
to in Sections 6(a) and 6(b) hereof (the Closing Date and each such time
being hereinafter sometimes referred to as a "Representation Date"), as
follows:
(a) A registration statement (File No. 333-49359) on Form S-3 with
respect to, among other things, the Notes has been prepared and filed by the
Company in conformity with the requirements of the Securities Act of 1933, as
amended (the "Act"), and the rules and regulations (the "Rules and
Regulations") of the Securities and Exchange Commission (the "Commission")
thereunder, and has become effective under the Act. The Indenture has been
qualified under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"). As used in this Agreement, (i) "Registration Statement"
means such registration statement when it became effective under the Act, and
as from time to time amended or supplemented thereafter (if any
post-effective amendment to any such registration statement has been filed
with the Commission prior to the execution and delivery of this Agreement,
the time the most recent such amendment has been declared effective by the
Commission); (ii) "Basic Prospectus" means the most recently filed prospectus
(including all documents incorporated therein by reference) included in the
Registration Statement; and (iii) "Prospectus" means the Basic Prospectus
(together with all documents incorporated therein by reference) and any
amendments or supplements thereto (including the applicable Pricing
Supplement) relating to the Notes, as filed with the Commission pursuant to
paragraph (b) of Rule 424 of the Rules and Regulations. The Commission has
not issued any order preventing or suspending the use of the Prospectus. Any
reference in this Agreement to amending or supplementing the Prospectus shall
be deemed to include the filing of materials incorporated by reference in the
Prospectus after the Closing Date (defined herein).
(b) The Registration Statement and each Prospectus conformed, and
the Registration Statement and each Prospectus will conform as of the
applicable Representation Date and at all times during each period during
which, in the opinion of counsel for the Agents, a prospectus relating to the
Notes is required to be delivered under the Act and solicitation has not been
suspended by the Company under Section 2(b) (each a "Marketing Period"), in
all respects to the requirements of the Act, the Securities Exchange Act of
1934, as amended (the "Exchange Act"), the Trust Indenture Act and the Rules
and Regulations; the Indenture, including any amendments and supplements
thereto, conforms with the requirements of the Trust Indenture Act and the
Rules and Regulations; and the Registration Statement and each Prospectus do
not, in the light of the circumstances under which they were made, and will
not as of the applicable Representation Date and at all times during each
Marketing Period, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading; PROVIDED, HOWEVER, that no
representation or warranty is made as to information contained in or omitted
from the Registration Statement or any Prospectus in reliance upon and in
conformity with written information furnished to the Company by the Agents
specifically for inclusion therein or to any statements in or omissions from
the statement of eligibility and qualification on Form T-1 (the "Form T-1")
of the Trustee under the Trust Indenture Act.
(c) The Company and 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.
(d) 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
<PAGE>
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.
(e) This Agreement and the Indenture have been duly authorized,
executed and delivered by the Company and constitute the valid and binding
agreements of the Company, enforceable against the Company in accordance with
its terms; the execution, delivery and performance of this Agreement and the
Indenture by the Company and the consummation of the transactions
contemplated hereby and thereby 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 material indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company or any
of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor did or will such actions
result in any violation of the provisions of the declaration of trust or
charter, as the case may be, or by-laws of the Company or any of its
subsidiaries or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of
its subsidiaries or any of their properties or assets; except for the
registration of the Notes under the Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under the
Exchange Act and applicable state securities laws in connection with the
purchase and distribution of the Notes by the Agents, no consent, approval,
authorization or order of, or filing or registration with, any such court or
governmental agency or body was or is required for the execution, delivery
and performance of this Agreement by the Company and the consummation of the
transactions contemplated hereby.
(f) The Notes have been validly authorized for issuance and sale
pursuant to this Agreement and, when the terms of the Notes and of their
issue and sale have been duly established in accordance with the Indenture
and this Agreement so as not to violate any applicable law or agreement or
instrument then binding on the Company, and the Notes have been duly
executed, authenticated, delivered and paid therefor as provided in this
Agreement and the Indenture, the Notes will be validly issued and
outstanding, and will constitute valid and legally binding obligations of the
Company entitled to the benefits of the Indenture and enforceable in
accordance with their terms and the terms of the Indenture. The Notes will
conform and the Indenture conforms to the descriptions thereof contained in
each Prospectus.
(g) Except as disclosed in the Registration Statement and
registration statement No. 333-18235, 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.
(h) Neither the Company nor any of its subsidiaries has sustained,
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, any material loss or
interference with its business from fire, explosion, flood, earthquake or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as
set forth or contemplated in the Prospectus; and, since such date, there has
not been any change in the capital stock other than issuances of Common
Shares in connection with stock option and other benefit plans and
agreements, the conversion of debentures into Common
<PAGE>
Shares, the conversion of Class B Common Shares into Common Shares, the
Company's Dividend Reinvestment and Stock Purchase Plan and the delayed
offering of Common Shares program described in the prospectus supplement
dated July 24, 1998 to Registration Statement No. 333-18235 or material
increase in the long-term debt of the Company or any of its subsidiaries or
any material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries, otherwise than as set forth or contemplated in
the Prospectus.
(i) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or included
or incorporated by reference in the Prospectus present fairly and will
present fairly at all times during each Marketing Period the financial
condition and results of operations of the entities purported to be shown
thereby; and said financial statements (including the related notes and
supporting schedules) have been and will be at all times during each
Marketing Period prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods involved.
(j) PricewaterhouseCoopers LLP, the successor to Coopers & Lybrand
L.L.P., whose report appears in the Company's most recent Annual Report on
Form 10-K which is incorporated by reference in the Prospectus, and if not
the same auditors, the Company's outside auditors as of the applicable
Representation Date, are independent public accountants as required by the
Securities Act and the Rules and Regulations.
(k) (i) The Company and each of its subsidiaries have insurable
title in fee simple to all real property and marketable title to all personal
property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Prospectus or
such as do not materially affect the value of such property and do not
materially interfere with the use made and proposed to be made of such
property by the Company and its subsidiaries; (ii) all real property and
buildings held under lease by the Company and its subsidiaries are held by
them under valid, subsisting and enforceable leases, which such exceptions as
are not material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company and its subsidiaries;
(iii) all liens, charges, encumbrances, claims, or restrictions on or
affecting the properties and assets of any of the Company or its subsidiaries
which are required to be disclosed in the Prospectus are disclosed therein;
(iv) neither the Company nor any of its subsidiaries is in default under any
of the leases pursuant to which any of the Company or its subsidiaries leases
its properties and neither the Company nor any of its subsidiaries knows of
any event which, but for the passage of time or the giving of notice, or
both, would constitute a default under any of such leases; (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.
(l) The Company and each of its subsidiaries carry, or are covered
by, insurance in such amounts and covering such risks as is adequate for the
conduct of their respective businesses and the value of their respective
properties and as is customary for companies engaged in similar businesses in
similar industries.
(m) The Company and each of its subsidiaries own or possess
adequate rights to use all
<PAGE>
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.
(n) There are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or of which any property or
assets of the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries, 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.
(o) There are no contracts or other documents which are required to
be described in the Prospectus or filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and Regulations which have
not been described in the Prospectus or filed as exhibits to the Registration
Statement or incorporated therein by reference as permitted by the Rules and
Regulations.
(p) No relationship, direct or indirect, exists between or among
the Company on the one hand, and the directors, officers or stockholders of
the Company on the other hand, which is required to be described in the
Prospectus which is not so described.
(q) No labor disturbance by the employees of the Company exists or,
to the knowledge of the Company, is imminent which might be expected to have
a material adverse effect on the consolidated financial position,
stockholders' equity, results of operations, business or prospects of the
Company and its subsidiaries.
(r) The Company is in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income Security
Act of 1974, as amended, including the regulations and published
interpretations thereunder ("ERISA"); no "reportable event" (as defined in
ERISA) has occurred with respect to any "pension plan" (as defined in ERISA)
for which the Company would have any liability; the Company has not incurred
and does not expect to incur liability under (i) Title IV of ERISA with
respect to termination of, or withdrawal from, any "pension plan" or (ii)
Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended,
including the regulations and published interpretations thereunder (the
"Code"); and each "pension plan " for which the Company would have any
liability that is intended to be qualified under Section 401(a) of the Code
is so qualified in all material respects and nothing has occurred, whether by
action or by failure to act, which would cause the loss of such qualification.
(s) The Company has filed all federal, state and local income and
franchise tax returns required to be filed through the date hereof and has
paid all taxes due thereon, and no tax deficiency has been determined
adversely to the Company or any of its subsidiaries, which has had (nor does
the Company have any knowledge of any tax deficiency which, if determined
adversely to the Company or any of its subsidiaries, 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.
(t) Since the date as of which information is given in the
Prospectus through the date hereof, and except as may otherwise be disclosed
in the Prospectus, the Company has not (i) issued or granted any securities,
other than in connection with stock option and other benefit plans and
agreements, the conversion of debentures into Common Shares, the conversion
of Class B Common Shares into Common Shares, the issuance of shares under the
Dividend Reinvestment and Stock Purchases Plan and the issuance of shares
under the delayed offering of Common Shares program described in the
prospectus Supplement, dated July 24, 1998, to Registration Statement No.
333-18235, (ii) incurred any liability or obligation, direct or contingent,
other than liabilities and obligations which
<PAGE>
were incurred in the ordinary course of business, (iii) entered into any
transaction not in the ordinary course of business or (iv) declared or paid
any dividend on its capital stock (other than regular quarterly dividends).
(u) The Company (i) makes and keeps accurate books and records and
(ii) maintains internal accounting controls which provide reasonable
assurance that (A) transactions are executed in accordance with management's
authorization, (B) transactions are recorded as necessary to permit
preparation of its financial statements and to maintain accountability for
its assets, (C) access to its assets is permitted only in accordance with
management's authorization and (D) the reported accountability for its assets
is compared with existing assets at reasonable intervals.
(v) Neither the Company nor any of its subsidiaries (i) is in
violation of its declaration of trust or charter, as the case may be, or
by-laws, (ii) is in default in any material respect, and no event has
occurred which, with notice or lapse of time or both, would constitute such a
default, in the due performance or observance of any term, covenant or
condition contained in any material indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party or by which
it is bound or to which any of its properties or assets is subject or (iii)
is in violation in any material respect of any law, ordinance, governmental
rule, regulation or court decree to which it or its property or assets may be
subject or has failed to obtain any material license, permit, certificate,
franchise or other governmental authorization or permit necessary to the
ownership of its property or to the conduct of its business.
(w) Neither the Company nor any of its subsidiaries, nor any
director, officer, agent, employee or other person associated with or acting
on behalf of the Company or any of its subsidiaries, has used any corporate
funds for any unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity; made any direct or indirect unlawful
payment to any foreign or domestic government official or employee from
corporate funds; violated or is in violation of any provision of the Foreign
Corrupt Practices Act of 1977; or made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment.
(x) There has been no storage, disposal, generation, manufacture,
refinement, transportation, handling or treatment of any material by the
Company or any of its subsidiaries or, to the Company's knowledge, any of
their predecessors in interest at, upon or from any of the properties now or
previously owned or leased by the Company or its subsidiaries or any of their
predecessors in interest in violation of any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit or which would require remedial
action damages other modification or cessation of any activity of the Company
or any of its subsidiaries under any applicable law, common law, ordinance,
rule, regulation, order, judgment, decree or permit, except for any
violation, remedial action, damages, modification or cessation which would
not have, singly or in the aggregate with all such violations, remedial
actions, damages, modifications or cessations, a material adverse effect on
the consolidated financial position, stockholders' equity, results of
operations, business or prospects of the Company and its subsidiaries; and
there has been no material spill, discharge, leak, emission, escape, dumping,
migration or release of any kind onto such property or into the environment
surrounding such property except for any such spill, discharge, leak,
emission, injection, escape, dumping or release which would not have, singly
or in the aggregate with all such spills, discharges, leaks, emission,
injections, escapes, dumpings and releases, a material adverse effect on the
consolidated financial position, stockholders' equity, results of operations,
business or prospects of the Company and its subsidiaries.
<PAGE>
(y) Neither the Company nor any subsidiary is an "investment
company" within the meaning of such term under the Investment Company Act of
1940 and the rules and regulations of the Commission promulgated thereunder.
(z) The Company is organized in conformity with the requirements
for qualification as a real estate investment trust ("REIT") under the Code,
and its present and contemplated method of operation does and will enable it
to meet the requirements for taxation as a REIT under the Code for the year
ended December 31, 1994 and subsequent taxable years.
(aa) Each of the Company and its subsidiaries has title insurance on
all real property described in the Prospectus as owned by such party in an
amount at least equal to the greater of (a) the cost of acquisition of such
property or assets and (b) the cost of construction of the improvements
located on such properties.
(ab) The documents incorporated by reference into any Prospectus
have been, and will be as of the applicable Representation Date and at all
times during each Marketing Period, prepared in conformity with the
applicable requirements of the Act and the Rules and Regulations and the
Exchange Act and the rules and regulations of the Commission thereunder; and
none of such documents contained, in the light of the circumstances under
which they were made, or will contain as of the applicable Representation
Date and at all times during each Marketing Period, an untrue statement of a
material fact or omitted, in the light of the circumstances under which they
were made, or will omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and such
documents have been, or will be, as of the applicable Representation Date and
at all times during each Marketing Period, timely filed as required thereby.
(ac) The Notes have been rated by a "nationally recognized
statistical rating agency" (as that term is defined by the Commission for the
purposes of Rule 436(g)(2) of the Rules and Regulations), including one or
both of Moody's Investor Services, Inc. and Standard & Poor's Corporation.
Section 2. Solicitations as Agents; Purchases as Principals
(a) APPOINTMENT. Subject to the terms and conditions stated
herein, and subject to the reservation by the Company of the right to sell
Notes directly on its own behalf and through or to other dealers or agents,
the Company hereby appoints the Agents on a non-exclusive basis as agents of
the Company for the purpose of soliciting or receiving offers to purchase the
Notes from the Company by others. The Company may from time to time offer
Notes for sale otherwise than through the Agents; PROVIDED, HOWEVER, that so
long as this Agreement shall be in effect the Company shall not solicit
offers to purchase Notes through any other agents without amending this
Agreement to appoint such agents as additional Agents hereunder on the same
terms and conditions as provided herein for the Agents and without giving the
Agents prior notice of such appointment. The consent of the then current
Agents shall not be necessary for such purpose. In the absence of such an
amendment, the Company may accept offers to purchase Notes from or through an
agent other than the Agents, provided that (i) the Company shall not have
solicited such offers, (ii) the Company and such agent shall have executed an
agreement with respect to such purchases having terms and conditions
(including, without limitation, commission rates) with respect to such
purchases substantially the same as the terms and conditions that would apply
to such purchases under this Agreement as if such agent was an Agent (which
may be accomplished by incorporating by reference in such agreement the terms
and conditions of this Agreement), and (iii) the Company shall provide the
Agents with a copy of such agreement following the execution thereof. On the
basis of the representations and warranties contained herein, but subject to
the terms and conditions herein set forth, the Agents agree, as Agents of the
Company, to use their reasonable efforts to solicit offers to purchase the
Notes upon the terms and conditions set forth in the
<PAGE>
Prospectus. Except as otherwise provided herein, so long as this Agreement
shall remain in effect, the Company shall not, without the consent of the
Agents, solicit or accept offers to purchase Notes otherwise than through the
Agents; PROVIDED, HOWEVER, the Company expressly reserves the right to sell
Notes directly to investors, in which case no commission will be payable with
respect to any such sale. The Agents may also purchase Notes from the
Company as principals for purposes of resale, as more fully described in
paragraph (e) of this Section.
(b) SUSPENSION OF SOLICITATION. The Company reserves the right, in
its sole discretion, to suspend solicitation of offers to purchase the Notes
commencing at any time for any period of time or indefinitely. Upon receipt
of telephonic notice confirmed by facsimile notice from the Company, the
Agents will forthwith suspend solicitation of offers to purchase Notes from
the Company until such time as the Company has advised the Agents that such
solicitation may be resumed.
Upon receipt of notice from the Company as contemplated by
Section 3(c) hereof, the Agents shall suspend their solicitation of offers to
purchase Notes until such time as the Company shall have furnished them with
an amendment or supplement to the Registration Statement or the Prospectus,
as the case may be, contemplated by Section 3(c) and shall have advised the
Agents that such solicitation may be resumed.
(c) AGENTS' COMMISSION. Promptly upon the closing of the sale of
any Notes sold by the Company as a result of a solicitation made by or offer
to purchase received by the Agents, the Company agrees to pay the Agents a
commission, in the form of a discount, in accordance with the schedule set
forth in Schedule A hereto.
(d) SOLICITATION OF OFFERS. The Agents are authorized to solicit
offers to purchase the Notes only in denominations as are specified in the
Prospectus at a purchase price as shall be specified by the Company, in an
aggregate amount not to exceed the amount authorized by the Company from time
to time (less the aggregate amount of Notes either sold directly by the
Company or purchased from the Company by the Agents as principals or
purchased from the Company by other Agents). The Agents shall communicate to
the Company, orally or in writing, each reasonable offer to purchase Notes
received by them as Agents. The Company shall have the sole right to accept
offers to purchase the Notes and may reject any such offer in whole or in
part. The Agents shall have the right, in their discretion reasonably
exercised without advising the Company, to reject any offer to purchase the
Notes received by them, in whole or in part, and any such rejection shall not
be deemed a breach of their agreement contained herein.
No Note which the Company has agreed to sell pursuant to this
Agreement shall be deemed to have been purchased and paid for, or sold by the
Company, until such Note shall have been delivered to the purchaser thereof
against payment by such purchaser.
(e) PURCHASES AS PRINCIPALS. Each sale of Notes to the Agents as
principals, for resale to one or more investors or to another broker-dealer
(acting as principal for purposes of resale), shall be made in accordance
with the terms of this Agreement and a Purchase Agreement whether oral (and
confirmed in writing by such Agents to the Company, which may be by facsimile
transmission) or in writing, which will provide for the sale of such Notes
to, and the purchase thereof by, the Agents. A Purchase Agreement may also
specify certain provisions relating to the reoffering of such Notes by the
Agents. The commitment of the Agents to purchase Notes from the Company as
principals shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and shall be
subject to the terms and conditions herein set forth. Each Purchase
Agreement shall contain, to the extent applicable, those terms specified in
Exhibit A hereto, including the time and date (each such time and date being
referred to herein as a "Time of Delivery") and place of delivery of and
payment for such Notes and such other information (as applicable) as is set
forth in Exhibit C hereto. The Company agrees that if the Agents purchase
Notes as principals for resale such Agents
<PAGE>
shall receive such compensation, in the form of a discount or otherwise, as
shall be indicated in the applicable Purchase Agreement or, if no
compensation is indicated therein, a commission in accordance with Schedule A
hereto. The Agents may utilize a selling or dealer group in connection with
the resale of such Notes. In addition, the Agents may offer the Notes they
have purchased as principals to other dealers. The Agents may sell Notes to
any dealer at a discount and, unless otherwise specified in the applicable
Pricing Supplement, such discount allowed to any dealer will not be in excess
of 66 2/3% of the discount to be received by such Agents from the Company.
Such Purchase Agreement shall also specify any requirements for delivery of
opinions of counsel, accountant's letters and officers' certificates pursuant
to Section 5 hereof.
(f) ADMINISTRATIVE PROCEDURES. The purchase price, interest rate
or formula, maturity date and other terms of the Notes (as applicable)
specified in Exhibit A hereto shall be agreed upon by the Company and the
Agents and specified in a Pricing Supplement to be prepared in connection
with each sale of Notes. Administrative procedures respecting the sale of
Notes (the "Procedures") are set forth in Exhibit B hereto and may be amended
in writing from time to time by the Agents and the Company. The Agents and
the Company agree to perform the respective duties and obligations
specifically provided to be performed by each of them herein and in the
Procedures. The Procedures shall apply to all transactions contemplated
hereunder including sales of Notes to the Agents as principals pursuant to a
Purchase Agreement, unless otherwise set forth in such Purchase Agreement.
(g) DELIVERY OF DOCUMENTS. The documents required to be delivered
by Section 5 hereof shall be delivered at the offices of Skadden, Arps,
Slate, Meagher & Flom LLP, 919 Third Avenue, New York, New York 10022, not
later than 10:00 A.M., New York City time, on the date of this Agreement or
at such later time as may be mutually agreed upon by the Company and the
Agents, which in no event shall be later than the time at which the Agent
commences solicitation of offers to purchase Notes hereunder (the "Closing
Date").
Section 3. Covenants of the Company
The Company covenants and agrees:
(a) DELIVERY OF SIGNED REGISTRATION STATEMENT. To furnish promptly
to the Agents and to their counsel a signed copy of the Registration
Statement as originally filed and each amendment or supplement thereto.
(b) DELIVERY OF OTHER DOCUMENTS. To deliver promptly to the
Agents, and in such number as they may request, each of the following
documents: (i) conformed copies of the Registration Statement (excluding
exhibits other than the computation of the ratio of earnings to fixed
charges, the Indenture, this Agreement and such other exhibits that the
Agents may request), (ii) the Basic Prospectus, (iii) each Prospectus and
(iv) during any Marketing Period, any documents incorporated by reference in
the Prospectus.
(c) REVISIONS TO PROSPECTUS - MATERIAL CHANGES. If, during any
Marketing Period, any event occurs as a result of which the Prospectus would
include an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, not misleading, or if it is
necessary at any time to amend any Prospectus to comply with the Act, to
notify the Agents promptly, in writing, to suspend solicitation of purchases
of the Notes; and if the Company shall decide to amend or supplement the
Registration Statement or any Prospectus, to promptly advise the Agents by
telephone (with confirmation in writing) and to promptly, in writing, prepare
and file with the Commission an amendment or supplement which will correct
such statement or omission or an amendment which will effect such compliance;
PROVIDED, HOWEVER, that if during the period referred to above the Agents
shall own any Notes which they have purchased from the Company as principals
with the intention of reselling them, the Company shall promptly prepare and
timely file with the
<PAGE>
Commission any amendment or supplement to the Registration
Statement or any Prospectus that may, in the judgment of the Company or the
Agents, be required by the Act or requested by the Commission.
(d) COMMISSION FILINGS. To timely file with the Commission during
any Marketing Period, all documents (and any amendments to previously filed
documents) required to be filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act.
(e) COPIES OF FILINGS WITH COMMISSION. Prior to filing with the
Commission during any Marketing Period, (i) any amendment or supplement to
the Registration Statement, (ii) any amendment or supplement to any
Prospectus or (iii) any document incorporated by reference in any of the
foregoing or any amendment of or supplement to any such incorporated
document, to furnish a copy thereof to the Agents.
(f) NOTICE TO AGENTS OF CERTAIN EVENTS. To advise the Agents
immediately (i) when any post-effective amendment to the Registration
Statement relating to or covering the Notes becomes effective, (ii) of any
request or proposed request by the Commission for an amendment or supplement
to the Registration Statement, to any Prospectus, to any document
incorporated by reference in any of the foregoing or for any additional
information and the Company will afford the Agents a reasonable opportunity
to comment on any such proposed amendment or supplement, (iii) of the
issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or any part thereof or any order directed to any
Prospectus or any document incorporated therein by reference or the
initiation or threat of any stop order proceeding or of any challenge to the
accuracy or adequacy of any document incorporated by reference in any
Prospectus, (iv) of receipt by the Company of any notification with respect
to the suspension of the qualification of the Notes for sale in any
jurisdiction or the initiation or threat of any proceeding for that purpose,
(v) of any downgrading in the rating of the Notes or any other debt
securities of the Company, or any proposal to downgrade the rating of the
Notes or any other debt securities of the Company, by any "nationally
recognized statistical rating organization" (as defined for purposes of Rule
436(g) of the Rules and Regulations), or any public announcement that any
such organization has under surveillance or review its rating of any debt
securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading of such rating) as soon as the Company learns of any such
downgrading, proposal to downgrade or public announcement and (vi) of the
happening of any event which makes untrue any statement of a material fact
made in the Registration Statement or any Prospectus or which requires the
making of a change in the Registration Statement or any Prospectus in order
to make any material statement therein not misleading.
(g) STOP ORDERS. If, during any Marketing Period, the Commission
shall issue a stop order suspending the effectiveness of the Registration
Statement, to make every reasonable effort to obtain the lifting of that
order at the earliest possible time.
(h) EARNINGS STATEMENTS. As soon as practicable, but not later
than 18 months, after the date of each acceptance by the Company of an offer
to purchase Notes hereunder, to make generally available to its security
holders an earnings statement covering a period of at least 12 months
beginning after the later of (i) the effective date of the Registration
Statement, (ii) the effective date of the most recent post-effective
amendment to the Registration Statement to become effective prior to the date
of such acceptance and (iii) the date of the Company's most recent Annual
Report on Form 10-K filed with the Commission prior to the date of such
acceptance which will satisfy the provisions of Section 11(a) of the Act
(including, at the option of the Company, Rule 158 of the Rules and
Regulations);
(i) COPIES OF REPORTS, RELEASES AND FINANCIAL STATEMENTS. So long
as any of the Notes are outstanding, to furnish to the Agents, not later than
the time the Company makes the same available to others, copies of all public
reports or releases and all reports and financial statements furnished by the
<PAGE>
Company to any securities exchange on which the Notes are listed pursuant to
requirements of or agreements with such exchange or to the Commission
pursuant to the Exchange Act or any rule or regulation of the Commission
thereunder.
(j) BLUE SKY QUALIFICATIONS. To endeavor, in cooperation with the
Agents, to qualify the Notes for offering and sale under the securities laws
of such jurisdictions as the Agents may designate, and to maintain such
qualifications in effect for as long as may be required for the distribution
of the Notes; and to file such statements and reports as may be required by
the laws of each jurisdiction in which the Notes have been qualified as above
provided; PROVIDED, HOWEVER, that the Company shall not be obligated to file
any general consent to service of process or to qualify as a foreign entity
in any jurisdiction in which it is not so qualified.
(k) HOLDBACK. Between the date of a Purchase Agreement and the
date of delivery of the Notes with respect thereto, the Company will not,
without the prior written consent of Lehman Brothers, offer or sell, or enter
into any agreement to sell, any of its debt securities, other than borrowings
under the Company's revolving credit agreements and lines of credit, as may
be amended, supplemented or replaced, the private placement of securities and
issuances of its commercial paper.
(l) PRICING SUPPLEMENT. To prepare, with respect to any Notes to
be sold through or to the Agents pursuant to this Agreement, a Pricing
Supplement with respect to such Notes in a form previously approved by the
Agents and to file such Pricing Supplement pursuant to Rule 424 of the Rules
and Regulations.
Section 4. Payment of Expenses
The Company will pay: (i) the costs incident to the authorization,
issuance, sale and delivery of the Notes and any taxes payable in that
connection; (ii) the costs incident to the preparation, printing and filing
under the Act of the Registration Statement and any amendments and exhibits
thereto; (iii) the costs incident to the preparation, printing and filing of
any document and any amendments and exhibits thereto required to be filed by
the Company under the Exchange Act; (iv) the costs of distributing the
Registration Statement, as originally filed, and each amendment and
post-effective amendment thereof (including exhibits), the Basic Prospectus,
each Prospectus, any supplement or amendment to any Prospectus and any
documents incorporated by reference in any of the foregoing documents; (v)
the fees and disbursements of the Trustee, any paying agent, any calculation
agent, any exchange rate agent and any other agents appointed by the Company,
and their respective counsel; (vi) the costs and fees in connection with the
listing of the Notes on any securities exchange; (vii) the cost and fees in
connection with any filings with the National Association of Securities
Dealers, Inc.; (viii) the fees and disbursements of counsel to the Company
and counsel to the Agents; (ix) the fees paid to rating agencies in
connection with the rating of the Notes; (x) the fees and expenses of
qualifying the Notes under the securities laws of the several jurisdictions
as provided in Section 3(j) hereof and of preparing and printing a Blue Sky
Memorandum and a memorandum concerning the legality of the Notes as an
investment (including reasonable fees and expenses of counsel for the Agents
in connection therewith); (xi) all advertising expenses in connection with
the offering of the Notes incurred with the consent of the Company; and (xii)
all other costs and expenses arising out of the transactions contemplated
hereunder and incident to the performance of the Company's obligations under
this Agreement.
Section 5. Conditions of Obligations of Agents
The obligation of the Agents, as agents of the Company, under this
Agreement to solicit offers to purchase the Notes, the obligation of any
person who has agreed to purchase Notes to make payment for and take delivery
of Notes, and the obligation of the Agents to purchase Notes pursuant to any
Purchase Agreement, are subject to the accuracy, on each Representation Date,
of the representations
<PAGE>
and warranties of the Company contained herein, to the accuracy of the
statements of the Company's officers made in any certificate furnished
pursuant to the provisions hereof, to the performance by the Company of its
respective obligations hereunder, and to each of the following additional
terms and conditions:
(a) REGISTRATION STATEMENT. The Prospectus as amended or
supplemented (including the Pricing Supplement) with respect to such Notes
shall have been filed with the Commission pursuant to Rule 424(b) of the
Rules and Regulations within the applicable time period prescribed for such
filing by the Rules and Regulations and in accordance with Section 3(l)
hereof; no stop order suspending the effectiveness of the Registration
Statement or any part thereof nor any order directed to any document
incorporated by reference in any Prospectus shall have been issued and no
stop order proceeding shall have been initiated or threatened by the
Commission and no challenge shall have been made to the accuracy or adequacy
of any document incorporated by reference in any Prospectus; any request of
the Commission for inclusion of additional information in the Registration
Statement or any Prospectus or otherwise shall have been complied with; and
the Company shall not have filed with the Commission any amendment or
supplement to the Registration Statement or any Prospectus (or any document
incorporated by reference therein) without affording the Agents a reasonable
opportunity to comment thereon (which in the case of a Form 10-Q or Form 8-K
may be a one day time period for such comments).
(b) NO SUSPENSION OF SALE OF THE NOTES. No order suspending the
sale of the Notes in any jurisdiction designated by the Agents pursuant to
Section 3(j) hereof shall have been issued, and no proceeding for that
purpose shall have been initiated or threatened.
(c) NO MATERIAL OMISSIONS OR UNTRUE STATEMENTS. The Agents shall
not have discovered and disclosed to the Company that the Registration
Statement or any Prospectus contains an untrue statement of a fact which, in
the opinion of counsel for the Agents, is material or omits to state a fact
which, in the opinion of such counsel, is material and is required to be
stated therein or is necessary to make the statements therein not misleading.
(d) LEGAL MATTERS SATISFACTORY TO COUNSEL. All corporate
proceedings and other legal matters incident to the authorization, form and
validity of this Agreement, the Notes, the Indenture, the form of the
Registration Statement, each Prospectus and all other legal matters relating
to this Agreement and the transactions contemplated hereby shall be
satisfactory in all respects to counsel for the Agents, and the Company shall
have furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(e) OPINION OF COMPANY COUNSEL. At the Closing Date, the Agents
shall have received the opinion, addressed to the Agents and dated the
Closing Date, of Ungaretti & Harris, counsel to the Company, in form and
substance satisfactory to the Agents and their counsel, to the effect that:
(i) Each of the Company and its subsidiaries has been duly
organized 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 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 beneficial interest of
the Company have been duly and validly authorized and issued, are fully
paid and non-assessable and conform to the description thereof
<PAGE>
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 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 proceedings for
that purpose have been instituted or threatened or are contemplated by
the Commission;
(iv) Except as described in the Prospectus, there are no
preemptive rights or other rights to subscribe for or to purchase, nor
any restriction upon transfer of, any Notes pursuant to the Company's
declaration of trust or by-laws or any agreement or other instrument
known to such counsel;
(v) 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;
(vi) 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;
(vii) This Agreement has been duly authorized, executed and
delivered by the Company;
(viii) The Indenture has been duly authorized, executed and
delivered by the Company and (assuming due execution and delivery by the
Trustee) constitutes a valid and legally binding agreement on the part of
the Company enforceable against the Company in accordance with its terms,
except that the enforceability thereof may be limited by or subject to
(a) bankruptcy, insolvency, reorganization, fraudulent conveyance or
transfer, moratorium or similar laws now or hereafter in effect relating
to creditors' rights generally and (b) general principles of equity
(regardless of whether enforceability is considered in a proceeding at
law or equity); and the Indenture has been qualified under the Trust
Indenture Act;
(ix) The issuance and sale of the Notes have been duly
authorized by the Company; the Notes, when (a) executed and authenticated
in accordance with the terms of the Indenture, (b) the terms thereof have
been fixed by the Board of Trustees of the Company in conformity with the
Indenture, and (c) issued, sold and delivered to and paid for by the
Agents in accordance with the terms of the Agreement, will constitute
valid and binding obligations of the Company enforceable in accordance
with their terms and entitled to the benefits of the Indenture, except
(1) to the extent that enforcement thereof may be limited by (a)
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance
or transfer or similar laws now or hereafter in effect relating to
creditors' rights generally and (b) general principles of equity
<PAGE>
(regardless of whether enforceability is considered in a proceeding at
law or in equity), (2) requirements that a claim with respect to any
Notes denominated other than in U.S. dollars (or a judgment denominated
other than in U.S. dollars in respect of such claims) be converted into
U.S. dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law and (3) governmental authority to limit, delay
or prohibit the making of payments in foreign currency, currency units or
composite currencies, outside the United States. For purposes of the
foregoing opinion, such counsel may assume that at the time of the
issuance, sale and delivery of each particular Note there will not have
occurred any change in law currently in effect affecting the validity,
legally binding character or enforceability of such Note and that the
issuance, sale and delivery of such Note, all of the terms of such Note
and the performance by the Company of its obligations thereunder will
comply with applicable law and with each requirement or restrictions
imposed by any court or governmental body having jurisdiction over the
Company and will not result in a default under or a breach of any
agreement or instrument then binding upon the Company.
(x) The statements contained in the Prospectus under the
captions "Description of Notes," "Certain United States Federal Income
Tax Considerations," "Description of Debt Securities," "Description of
Shares of Beneficial Interest," "Description of Securities Warrants,"
"Certain Provisions of the Company's Declaration of Trust and By-Laws"
and "Federal Income Tax Considerations Relating to the Company's REIT
Status," 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 Agents may rely upon such opinion as if it
were addressed to them;
(xi) 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 Act
or by the Rules and Regulations thereunder 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;
(xii) Except as disclosed in the Registration Statement and
registration statement No. 333-18235, 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 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 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;
(xiv) The execution, delivery and performance of this Agreement
and the Purchase Agreement, if any, and the compliance by the Company and
its subsidiaries with all of the provisions of this Agreement, the
Purchase Agreement, if any, and the Indenture and the consummation of the
transactions contemplated hereby and thereby 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 material
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the
<PAGE>
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 Notes under the Act and such
consents, approvals, authorizations, registrations or qualifications as
may be required under the Exchange Act and applicable state securities
laws in connection with the purchase and distribution of the Notes by
the Agents, no consent, approval, authorization or order of, or filing
or registration with, any such court or governmental agency or body was
or is required for the execution, delivery and performance of this
Agreement by the Company and the consummation of the transactions
contemplated hereby.
In rendering such opinion, such counsel may rely as to matters of Maryland
law on the opinion of Gordon, Feinblatt, Rothman, Hofberger & Hollander, LLC,
which opinion shall be in form and substance satisfactory to counsel for the
Agents; PROVIDED, that such counsel shall state that it believes that both
the Agents and it are justified in relying upon such opinion. Such counsel
shall also have furnished to the Agents a written statement, addressed to the
Agents and dated the Closing Date, in form and substance reasonably
satisfactory to the Agents, to the effect that no facts have come to the
attention of such counsel which lead it to believe that the Registration
Statement, as of its effective date and as of the Closing Date, contained any
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, or that the Prospectus, as of the Closing Date and at
the time such Prospectus was issued, contains any untrue statement of a
material fact or omits to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(f) OFFICERS' CERTIFICATE. The Company shall have furnished to the
Agents on the Closing Date a certificate, dated the Closing Date, of the
Chairman of the Board, the President or a Vice President and the Chief
Financial Officer of the Company stating that to the best of such officers'
knowledge:
(i) The representations, warranties and agreements of the
Company in Section 1 hereof are true and correct as of the Closing Date;
the Company has complied with all its agreements contained herein; and
the conditions set forth in Sections 5(a) and 5(b) hereof have been
fulfilled;
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose
is pending or threatened by the Commission;
(iii) All filings required by Rule 424(b) of the Rules and
Regulations have been made; and
(iv) They have carefully examined the Registration Statement and
the Prospectus and, in their opinion, (A) the Registration Statement, as
of its effective date, did not contain any untrue statement of a material
fact or omitted to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, (B) the
Prospectus does not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and (C) since
the effective date of the Registration Statement there has not occurred
any event required to be set forth in an amended or supplemented
prospectus which has not been so set forth.
<PAGE>
(g) ACCOUNTANT'S LETTER. The Company shall have furnished to the
Agents on the Closing Date a letter of Pricewaterhouse Coopers LLP addressed
jointly to the Company and the Agents and dated the Closing Date, of the type
described in the American Institute of Certified Public Accountants'
Statement on Auditing Standards No. 49, in form and substance reasonably
satisfactory to the Agents confirming that they are independent accountants
within the meaning of the Act and the applicable published Rules and
Regulations thereunder and stating in effect that:
(i) In their opinion, the financial statements and schedules
examined by them and included in the prospectus contained in the
Registration Statement comply in form in all material respects with the
applicable accounting requirements of the Act and the related published
Rules and Regulations;
(ii) They have made a review of any unaudited financial
statements included in the Prospectus in accordance with standards
established by the American Institute of Certified Public Accountants, as
indicated in their report or reports attached to such letter;
(iii) On the basis of the review referred to in (ii) above and a
reading of the latest available interim financial statements of the
Company, inquiries of officials of the Company who have responsibility
for financial and accounting matters and other specified procedures,
nothing came to their attention that caused them to believe that:
(A) the unaudited financial statements, if any, included
in the Prospectus do not comply in form in all material respects
with the applicable accounting requirements of the Act and the
related published Rules and Regulations or are not in conformity
with generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial
statements included in the Prospectus;
(B) the unaudited capsule information, if any, included
in the Prospectus does not agree with the amounts set forth in the
unaudited consolidated financial statements from which it was
derived or was not determined on a basis substantially consistent
with that of the audited financial statements included in the
Prospectus;
(C) at the date of the latest available balance sheet
read by such accountants, or at a subsequent specified date not
more than five days prior to the Closing Date, there was any
change in the capital stock, any increase in debt of the Company
and consolidated subsidiaries or, at the date of the latest
available balance sheet read by such accountants, there was any
decrease in consolidated net assets as compared with amounts shown
on the latest balance sheet included in the Prospectus; or
(D) for the period from the date of the latest income
statement included in the Prospectus to the closing date of the
latest available income statement read by such accountants there
were any decreases, as compared with the corresponding period of
the previous year, in consolidated rental income, total revenues,
net income or in the ratio of earnings to fixed charges;
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(iv) They have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Prospectus (in each case
<PAGE>
to the extent that such dollar amounts, percentages and other financial
information are derived from the general accounting records of the
Company and its subsidiaries subject to the internal controls of the
Company's accounting system or are derived directly from such records
by analysis or computation) with the results obtained from inquiries,
a reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts, percentages
and other financial information to be in agreement with such results,
except as otherwise specified in such letter.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed included in the
Prospectus for purposes of this subsection.
(h) The Agents shall have received from Skadden, Arps, Slate,
Meagher & Flom LLP, counsel to the Agents, such opinion or opinions, dated
the Closing Date, with respect to the issuance and sale of the Notes, the
Indenture, the Registration Statement, the Prospectus and other related
matters as the Agents may reasonably require, and the Company shall have
furnished to such counsel such documents as they may request for the purpose
of enabling them to pass upon such matters.
(i) ADDITIONAL CONDITIONS. There shall not have occurred: (i) any
change in the capital stock or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, stockholders'
equity, business, properties, condition (financial or other), results of
operations or prospects of the Company and its subsidiaries which in the
opinion of the Agents, materially impairs the investment quality of the
Notes; (ii) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange, the American Stock Exchange or the
over-the-counter market or the establishment of minimum prices on such
exchanges or such market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction; (iii) a
general moratorium on commercial banking activities declared by Federal,
Maryland or New York State authorities; (iv) any downgrading in the rating
accorded the Company's debt securities by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g) of
the Rules and Regulations), or any public announcement that any such
organization has under surveillance or review its rating of any debt
securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (v) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of war by
Congress or any other substantial national calamity or emergency; or (vi) any
material adverse change in the existing financial, political or economic
conditions in the United States, including any effect of international
conditions on the financial markets in the United States, that in the
judgment of the Agents makes it impracticable or inadvisable to proceed with
the solicitation of offers to purchase Notes or the purchase of Notes from
the Company as principals pursuant to a Purchase Agreement, as the case may
be.
(j) OTHER INFORMATION AND DOCUMENTATION. Prior to the Closing
Date, the Company shall have furnished to the Agents such further
information, certificates and documents as the Agents or counsel to the
Agents may reasonably request.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in the form and substance satisfactory to
counsel for the Agents.
Section 6. Additional Covenants of the Company.
The Company covenants and agrees that:
(a) ACCEPTANCE OF OFFER AFFIRMS REPRESENTATIONS AND WARRANTIES.
Each acceptance by the
<PAGE>
Company of an offer for the purchase of Notes shall be deemed to be an
affirmation that the representations and warranties of the Company contained
in this Agreement and in any certificate theretofore given to the Agents
pursuant hereto are true and correct at the time of such acceptance, and an
undertaking that such representations and warranties will be true and correct
at the time of delivery to the purchaser or his agent of the Notes relating
to such acceptance as though made at and as of each such time (and such
representations and warranties shall relate to the Registration Statement and
the Prospectus as amended or supplemented to each such time).
(b) SUBSEQUENT DELIVERY OF OFFICERS' CERTIFICATES. The Company
agrees that during each Marketing Period, each time that the Registration
Statement or any Prospectus shall be amended or supplemented (other than by a
Pricing Supplement providing solely for the interest rates or maturities of
the Notes or the principal amount of Notes remaining to be sold or similar
changes), each time the Company (i) sells Notes to the Agents as principals
and the Purchase Agreement specifies the delivery of an officers' certificate
under this Section 6(b) as a condition to the purchase of Notes pursuant to
such Purchase Agreement (ii) files an annual report on Form 10-K under the
Exchange Act, (iii) files its quarterly reports on Form 10-Q under the
Exchange act or (iv) files a current report on Form 8-K under the Exchange
Act (other than any Form 8-K relating solely to the issuance or offering of
securities other than the Notes), the Company shall submit to the Agents (but
in the case of (iii) and (iv) above, only if requested by the Agents) a
certificate, (y) as of the date of such amendment, supplement, Time of
Delivery relating to such sale or filing or (z) if such amendment, supplement
or filing was not filed during a Marketing Period, as of the first day of the
next succeeding Marketing Period, representing that the statements contained
in the certificate referred to in Section 5(f) hereof which was last
furnished to the Agents are true and correct at the time of such amendment,
supplement or filing, as the case may be, as though made at and as of such
time (except that such statements shall be deemed to relate to the
Registration Statement and each Prospectus as amended and supplemented to
such time).
(c) SUBSEQUENT DELIVERY OF LEGAL OPINION. The Company agrees that
during each Marketing Period, each time that the Registration Statement or
any Prospectus shall be amended or supplemented (other than by a Pricing
Supplement providing solely for the interest rates or maturities of the Notes
or the principal amount of Notes remaining to be sold or similar changes),
each time the Company (i) sells Notes to the Agents as principals and the
Purchase Agreement specifies the delivery of a legal opinion under this
Section 6(c) as a condition to the purchase of Notes pursuant to such
Purchase Agreement (ii) files an annual report on Form 10-K under the
Exchange Act, (iii) files its quarterly reports on Form 10-Q under the
Exchange Act or (iv) files a current report on Form 8-K under the Exchange
Act (other than any Form 8-K relating solely to the issuance or offering of
securities other than the Notes), the Company shall (but in the case of (iii)
or (iv) above only if requested by the Agents), (y) concurrently with such
amendment, supplement, Time of Delivery relating to such sale or filing or
(z) if such amendment, supplement or filing was not filed during a Marketing
Period, on the first day of the next succeeding Marketing Period, furnish the
Agents and their counsel with the written opinion of outside counsel to the
Company, addressed to the Agents and dated the date of delivery of such
opinion, in form satisfactory to the Agents, to the same effect as the
opinion referred to in Section 5(e) hereof, but modified, as necessary, to
relate to the Registration Statement and each Prospectus as amended or
supplemented to the time of delivery of such opinion; PROVIDED, HOWEVER, that
in lieu of such opinion, such counsel may furnish the Agents with a letter to
the effect that the Agents may rely on such prior opinion to the same extent
as though it was dated the date of such letter authorizing reliance (except
that statements in such prior opinion shall be deemed to relate to the
Registration Statement and each Prospectus as amended or supplemented to the
time of delivery of such letter authorizing reliance).
(d) SUBSEQUENT DELIVERY OF ACCOUNTANT'S LETTERS. The Company
agrees that during each Marketing Period, each time that the Registration
Statement or any Prospectus shall be amended or supplemented to include
additional financial information, each time the Company (i) sells Notes to
the Agents as principals and the Purchase Agreement specifies the delivery of
a letter under this Section
<PAGE>
6(d) as a condition to the purchase of Notes pursuant to such Purchase
Agreement (ii) files an annual report on Form 10-K under the Exchange Act,
(iii) files its quarterly reports on Form 10-Q under the Exchange Act or (iv)
files a current report on Form 8-K under the Exchange Act (other than any
Form 8-K relating solely to the issuance or offering of securities other than
the Notes), the Company shall (but in the case of (iii) or (iv) above only if
requested by the Agents and only if such documents include additional
financial information) cause Pricewaterhouse Coopers LLP (or other
independent accounts of the Company acceptable to the Agents) to furnish the
Agents, (y) concurrently with such amendment, supplement, Time of Delivery
relating to such sale or filing or (z) if such amendment, supplement, or
filing was not filed during a Marketing Period, on the first day of the next
succeeding Marketing Period, a letter, addressed jointly to the Company and
the Agents and dated the date of delivery of such letter, in form and
substance reasonably satisfactory to the Agents, to the same effect as the
letter referred to in Section 5(g) hereof but modified to relate to the
Registration Statement and each Prospectus, as amended and supplemented to
the date of such letter, with such changes as may be necessary to reflect
changes in the financial statements and other information derived from the
accounting records of the Company; PROVIDED, HOWEVER, that if the
Registration Statement or any Prospectus is amended or supplemented solely to
include financial information as of and for a fiscal quarter, such
accountants may limit the scope of such letter to the unaudited financial
statements included in such amendment or supplement unless there is contained
therein any other accounting, financial or statistical information that, in
the reasonable judgment of the Agents, should be covered by such letter, in
which event such letter shall also cover such other information.
(e) OPINION ON SETTLEMENT DATE. On any settlement date for the
sale of Notes, the Company shall, if requested by the Agents, furnish the
Agents with a written opinion of outside counsel to the Company, dated such
settlement date, in form satisfactory to the Agents, to the effect set forth
in Section 5(e) hereof, but modified, as necessary, to relate to the
Prospectus relating to the Notes to be delivered on such settlement date;
PROVIDED, HOWEVER, that in lieu of such opinion, such counsel may furnish the
Agents with a letter to the effect that the Agents may rely on such prior
opinion to the same extent as though it was dated such settlement date
(except that statements in such prior opinion shall be deemed to relate to
the Registration Statement and such Prospectus as amended or supplemented to
the time of delivery of such letter authorizing reliance).
Section 7. Indemnification and Contribution
(a) INDEMNIFICATION OF AGENTS. The Company shall indemnify and
hold harmless the Agents and each person, if any, who controls the Agents
within the meaning of the Act from and against any loss, claim, damage or
liability, joint or several, and any action in respect thereof, to which the
Agents or controlling persons may become subject, under the Act, the Exchange
Act or other federal or state statutory law or regulation, at common law or
otherwise, insofar as such loss, claim, damage, liability or action arises
out of, or is based upon, any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement or the Prospectus, or
arises out of, or is based upon, the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and shall reimburse the Agents and
controlling persons for any legal and other expenses reasonably incurred by
the Agents or controlling persons in investigating or defending or preparing
to defend against any such loss, claim, damage, liability or action;
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 the Form T-1 or made in the Registration
Statement or the Prospectus in reliance upon and in conformity with written
information furnished to the Company by the Agents specifically for inclusion
therein. The foregoing indemnity agreement is in addition to any liability
which the Company may otherwise have to the Agents or controlling persons.
(b) INDEMNIFICATION OF THE COMPANY. The Agents shall indemnify and
hold harmless the Company, each of the Company's directors (including any
person who, with his or her consent, is named in the Registration Statement
as about to become a director of the Company), each of its officers
<PAGE>
who signed the Registration Statement and any person who controls the Company
within the meaning of the Act from and against any loss, claim, damage or
liability, joint or several, and any action in respect thereof, to which the
Company or any such director, officer or controlling person may become
subject, under the Act, the Exchange Act or federal or state statutory law or
regulation, at common law or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus, or arises out of, or is based upon, the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, but in
each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by the Agents
specifically for inclusion therein, and shall reimburse the Company or any
such director, officer or controlling person for any legal and other expenses
reasonably incurred by such indemnified party in investigating or defending
or preparing to defend against any such loss, claim, damage, liability or
action. The foregoing indemnity agreement is in addition to any liability
which the Agents may otherwise have to the Company or any such director,
officer or controlling person.
(c) NOTICE. Promptly after receipt by an indemnified party under
this Section of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under this Section, notify the indemnifying party in
writing of the claim or the commencement of that action; PROVIDED, HOWEVER,
that the failure to notify the indemnifying party shall not relieve it from
any liability which it may have to an indemnified party otherwise than under
this Section except to the extent it has been materially prejudiced by such
failure. If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein, and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to
assume the defense thereof with counsel satisfactory to the indemnified
party. After notice from the indemnifying party to the indemnified party of
its election to assume the defense of such claim or action, the indemnifying
party shall not be liable to the indemnified party under this Section for any
legal or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; PROVIDED, HOWEVER, that the Agents shall have the right to
employ counsel to represent the Agents if, in the reasonable judgment of the
Agents, it is advisable for the Agents to be represented by separate counsel,
and in that event the fees and expenses of such counsel shall be paid by the
Company. The indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes
an unconditional release of such indemnified party from all liability on
claims that are the subject matter of such proceeding.
(d) CONTRIBUTION. If the indemnification provided for in this
Section 7 shall for any reason be unavailable to an indemnified party under
Section 7(a) or 7(b) hereof in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a
result of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the
relative benefits received by the Company on the one hand and the Agents on
the other from the offering of the Notes or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company on the one hand
and the Agents on the other with respect to the statements or omissions which
resulted in
<PAGE>
such loss, claim, damage or liability, or action in respect thereof, as well
as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Agents on the other with
respect to such offering shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Notes (before deducting expenses)
received by the Company bears to the total commissions received by the Agents
with respect to such offering. The relative fault shall be determined by
reference to whether the untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company or the Agents, the intent of the parties
and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Agents
agree that it would not be just and equitable if contributions pursuant to
this Section 7(d) were to be determined by pro rata allocation or by any
other method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 7(d) shall be
deemed to include, for purposes of this Section 7(d), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7(d), the Agents shall not be required to
contribute any amount in excess of the amount by which the total price at
which the Notes sold through the Agents and distributed to the public were
offered to the public exceeds the amount of any damages which the Agents have
otherwise paid or become liable to pay by reason of any untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
Section 8. Status of the Agents
In soliciting offers to purchase the Notes from the Company pursuant
to this Agreement (other than in respect of any Purchase Agreement), the
Agents are acting solely as agents for the Company and not as principals.
The Agents will make reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Notes from the Company
has been solicited by the Agents and accepted by the Company but the Agents
shall have no liability to the Company in the event any such purchase is not
consummated for any reason other than breach of this Agreement by any of the
Agents. If the Company shall default in its obligations to deliver Notes to
a purchaser whose offer it has accepted, the Company shall (i) hold the
Agents harmless against any loss, claim or damage arising from or as a result
of such default by the Company and (ii), in particular, pay to the Agents any
commission to which they would be entitled in connection with such sale.
Section 9. Representations, Warranties and Obligations to Survive Delivery
The respective indemnities, agreements, representations, warranties
and other statements of the Company and the Agents contained in this
Agreement, or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain operative and in full force and effect, regardless of
any investigation made by or on behalf of the Agents or any person
controlling the Agents or by or on behalf of the Company, and shall survive
each delivery of and payment for any of the Notes.
Section 10. Termination
This Agreement may be terminated for any reason with respect to any
party hereto, at any time, by any party hereto upon the giving of one day's
written notice of such termination to the other parties hereto. If, at the
time of a termination, an offer to purchase any of the Notes has been
accepted by the Company but the time of delivery to the purchaser has not
occurred, the provisions of this Agreement shall remain in effect until such
Notes are delivered. The provisions of Sections 2(c) (only to the extent of
any sales made prior to termination), 3(d), 3(h), 4, 7, 8 and 9 hereof shall
survive any termination of this Agreement.
<PAGE>
Section 11. Sales of Notes Denominated in a Foreign Currency and Indexed
Notes
If at any time the Company and the Agents shall determine to issue and
sell Notes denominated in a currency or currency unit other than U.S.
Dollars, which other currency may include a composite currency, or with
respect to which an index is used to determine the amounts of payments of
principal and any premium or interest, the Company and the Agents shall
execute and deliver an Amendment (a "Foreign Currency Amendment" or "Indexed
Note Amendment," as the case may be) in the form attached hereto as Exhibit
D. Such amendment shall establish, as appropriate additions and
modifications that shall apply to the sales, whether offered on an agency or
principal basis, of the Notes covered thereby.
Section 12. Notices
Except as otherwise provided herein, all notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Agents shall be directed to them as
follows: Lehman Brothers, Inc. 3 World Financial Center, New York, New York
10285, Attention: Medium Term Note Department, 9th Floor; Telephone No.:
(212) 528-1718; Telecopy No.: (212) 526-2040, First Chicago Capital Markets,
Inc. 1 First National Plaza, Suite 0595, Chicago, Illinois 60670-0595,
Attention: Corporate Securities Structuring; Telephone No.: (312) 732-8270;
Telecopy No.: (312) 732-4172 and NationsBanc Montgomery Securities, LLC 100
North Tryon Street, NC1-007-07-01, Charlotte, North Carolina 28255,
Attention: Jennifer Arens; Telephone No. (704) 386-6279; Telecopy No.: (704)
388-9939; notices to the Company shall be directed to it as follows: 1808
Swift Road, Oak Brook, Illinois 60523; Telephone No.: (630) 586-8000,
Telecopy No.: (630) 586-8010.
Section 13. Binding Effect; Benefits
This Agreement shall be binding upon the Agents, the Company, and
their respective successors. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except that (a) the
representations, warranties, indemnities and agreements of the Company
contained in this Agreement shall also be deemed to be for the benefit of the
person or persons, if any, who control the Agents within the meaning of
Section 15 of the Act, and (b) the indemnity agreement of the Agents
contained in Section 7 hereof shall be deemed to be for the benefit of
directors of the Company (including any person who, with his or her consent,
is named in the Registration Statement as about to become a director of the
Company), officers of the Company who have signed the Registration Statement
and any person controlling the Company. Nothing in this Agreement is
intended or shall be construed to give any person, other than the person
referred to in this Section, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
Section 14. Governing Law; Counterparts
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York. This Agreement may be executed in
counterparts and the executed counterparts shall together constitute a single
instrument.
Section 15. Paragraph Headings
The paragraph headings used in this Distribution Agreement are for
convenience of reference only, and are not to affect the construction hereof
or be taken into consideration in the interpretation hereof.
<PAGE>
If the foregoing correctly sets forth our agreement, please
indicate your acceptance hereof in the space provided for that purpose below.
Very truly yours,
Centerpoint Properties Trust
By:
---------------------------------
CONFIRMED AND ACCEPTED,
as of the date first above written:
LEHMAN BROTHERS INC.
By:
---------------------------------
FIRST CHICAGO CAPITAL MARKETS, INC.
By:
---------------------------------
NATIONSBANC MONTGOMERY SECURITIES LLC
By:
---------------------------------
<PAGE>
Schedule A
Centerpoint Properties Trust
Medium-Term Notes, Series A
SCHEDULE OF PAYMENTS
The Company agrees to pay each Agent a commission equal to the
following percentage of the aggregate U.S. dollar equivalent of the principal
amount of Notes:
<TABLE>
<CAPTION>
----------------------------------------------------------------------------
----------------------------------------------------------------------------
Term Commission Rate
----------------------------------------------------------------------------
<S> <C>
9 months to less than 12 months [ ]%
----------------------------------------------------------------------------
12 months to less than 18 months [ ]%
----------------------------------------------------------------------------
18 months to less than 2 years [ ]%
----------------------------------------------------------------------------
2 years to less than 3 years [ ]%
----------------------------------------------------------------------------
3 years to less than 4 years [ ]%
----------------------------------------------------------------------------
4 years to less than 5 years [ ]%
----------------------------------------------------------------------------
5 years to less than 6 years [ ]%
----------------------------------------------------------------------------
6 years to less than 7 years [ ]%
----------------------------------------------------------------------------
7 years to less than 10 years [ ]%
----------------------------------------------------------------------------
10 years to less than 15 years [ ]%
----------------------------------------------------------------------------
15 years to less than 20 years [ ]%
----------------------------------------------------------------------------
20 years to 30 years [ ]%
----------------------------------------------------------------------------
More than 30 years To be negotiated at time of
sale
----------------------------------------------------------------------------
----------------------------------------------------------------------------
</TABLE>
<PAGE>
Exhibit A
Terms of Notes
--------------
The following terms, if applicable, shall be agreed to by any Agent and
the Company in connection with each sale of Notes:
Principal Amount: $____________
(or principal amount of foreign currency or composite currency)
Interest Rate or Formula:
If Fixed Rate Note,
Interest Rate:
Default Rate:
Interest Payment Dates:
If Floating Rate Note,
Interest Rate Basis(es):
If LIBOR,
___
/__/ LIBOR Reuters
Page:
___
/__/ LIBOR Telerate
Page:
Designated LIBOR Currency:
If CMT Rate,
Designated CMT Telerate Page:
Designated CMT Maturity Index:
Index Maturity:
Spread and/or Spread Multiplier, if any:
Initial Interest Rate, if any:
Initial Interest Reset Date:
Interest Reset Dates:
Interest Payment Dates:
Default Rate:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Fixed Rate Commencement Date, if any:
Fixed Interest Rate, if any:
Calculation Agent:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction, if any:
If Repayable:
Optional Repayment Date(s):
Original Issue Date:
Stated Maturity Date:
<PAGE>
Specified Currency:
Exchange Rate Agent:
Authorized Denomination:
Purchase Price: ___%, plus accrued interest, if any, from ___________
Closing Date and Time:
Additional/Other Terms:
<PAGE>
Exhibit B
Centerpoint Properties Trust
Medium-Term Notes
Administrative Procedures
Medium-Term Notes Due Nine Months or More from Date of Issuance (the
"Notes") are to be offered on a continuing basis by Centerpoint Properties
Trust (the "Company"). Lehman Brothers Inc., First Chicago Capital Markets,
Inc. and NationsBanc Montgomery Services, LLC, as Agents (each an "Agent" and
collectively the "Agents") have each agreed to use its reasonable best
efforts to solicit offers to purchase the Notes. The Notes are being sold
pursuant to a Distribution Agreement between the Company and the Agents dated
October 23, 1998 (as it may be supplemented or amended from time to time,
the "Distribution Agreement") to which these administrative procedures are
attached as an exhibit. The Notes are to be issued from time to time pursuant
to an indenture, dated as of April 7, 1998, as it may be supplemented or
amended from time to time, by and between the Company and U.S. Bank Trust
National Association, as trustee (the "Trustee"), as supplemented by the
First Supplemental Indenture, dated as of April 7, 1998, and the Second
Supplemental Indenture, dated as of October 23, 1998, by and between the
Company and the Trustee (collectively, the "Indenture"). The Notes will rank
equally with all other unsecured and unsubordinated indebtedness of the
Company and will have been registered with the Securities and Exchange
Commission (the "Commission"). Terms defined in the Prospectus relating to
the Notes (the "Prospectus" which term shall include any Prospectus
supplement relating to the Notes and any Pricing Supplement relating to an
applicable Note) and in the Distribution Agreement shall have the same
meaning when used in this exhibit. Special administrative procedures for
Multi-Currency Notes and for Global Securities relating to Book-Entry Notes
follow these administrative procedures.
Administrative responsibilities, document control and record-keeping
functions to be performed on behalf of the Company will be performed by the
Company's Chief Financial Officer. Administrative procedures for the offering
are explained below.
Price to Public
Each Note will be issued at 100% of principal amount, unless otherwise
determined by the Company and specified in the applicable Pricing Supplement.
Date of Issuance
Each Note will be dated and issued as of the date of its
authentication by the Trustee.
Maturities
Each Note will mature on a Business Day (as defined below) selected by
the purchaser and agreed upon by the Company, such date being at least nine
months from the date of issuance. Each Floating Rate Note will mature on an
Interest Payment Date (as defined below).
"Business Day" shall mean any day which is not a Saturday or Sunday
and which is not a day
<PAGE>
on which banking institutions are generally authorized or obligated by law or
executive order to close in The City of New York and Chicago.
Registration
Notes will be issued only in fully registered form as either a
Book-Entry Note or a Certificated Note. Certificated Notes may be presented
for registration of transfer or exchange at the Trustee's New York office.
Denominations
The Notes (other than Notes represented by Global Securities) will be
issued and payable in U.S. dollars in the denomination of $1,000 and any
larger denomination which is an integral multiple of $1,000.
Interest Payments
Each Note bearing interest at a fixed rate (a "Fixed Rate Note") will
bear interest from its issue date at the annual rate stated on the face
thereof, payable, unless otherwise specified in the applicable Pricing
Supplement, on March 15 and September 15 of each year (each an "Interest
Payment Date" with respect to such Fixed Rate Note) and at Stated Maturity or
upon redemption, if applicable.
Special provisions are set forth in the Prospectus and in the form of
Floating Rate Note relating to Notes bearing interest at a rate or rates
determined by reference to an interest rate formula ("Floating Rate Notes")
at a rate determined pursuant to the formula stated on the face thereof,
payable in arrears on such dates as are specified therein (each an "Interest
Payment Date" with respect to such Floating Rate Note).
Unless otherwise specified in the applicable Pricing Supplement,
interest on Fixed Rate Notes will be calculated and paid on the basis of a
360-day year of twelve 30-day months. Unless otherwise specified in the
applicable Pricing Supplement, interest will be payable to the person in
whose name such Note is registered at the close of business on the fifteenth
calendar day (whether or not such date shall be a Business Day) next
preceding an Interest Payment Date with respect to Fixed Rate Notes or
Floating Rate Notes and on March 1 and September 1 next preceding the March 15
and September 15 Interest Payment Dates with respect to Fixed Rate Notes
(the "Regular Record Dates"); PROVIDED, HOWEVER, that interest payable at
Stated Maturity will be payable to the person to whom principal shall be
payable. Any payment of principal and interest on any Note required to be
paid on an Interest Payment Date or at Stated Maturity or upon redemption, if
applicable, which is not a Business Day shall be postponed to the next day
which is a Business Day. The first payment of interest on any Note
originally issued between a Regular Record Date and an Interest Payment Date
will be made on the Interest Payment Date following the next succeeding
Regular Record Date. All interest payments, excluding interest payments made
at Stated Maturity or upon redemption, if applicable, will be made by check
mailed to the person entitled thereto as provided above (which, in the case
of a permanent Global Note representing Book Entry Notes, shall be the
Depository Trust Company or nominee thereof), or, at the option of the
Company, by wire transfer to an account maintained by such person with a bank
located in the United States. Notwithstanding the foregoing, the holder of
$10 million or more in aggregate principal amount of Notes with the same
Interest Payment Date may request payment by wire transfers.
On the fifth Business Day immediately preceding each Interest Payment
Date, the Trustee will furnish the Company with the total amount of the
interest payments to be made on such Interest Payment Date. The Trustee (or
any duly selected paying agent) will provide monthly to the Company's
Treasury Department a list of the principal and interest to be paid on Notes
maturing in the next succeeding month. The Company will provide to the
Trustee (and any such paying agent) not later than the payment date
sufficient moneys to pay in full all principal and interest payments due on
such payment date. The Trustee or any such paying agent will assume
responsibility for withholding taxes on interest paid as required by law.
<PAGE>
Acceptance and Rejection of Offers
The Company shall have the sole right to accept offers to purchase
Notes and may reject any such offer in whole or in part. Each Agent shall
promptly communicate to the Company, orally or in writing, each reasonable
offer to purchase Notes from the Company received by it other than those
rejected by such Agent. Each Agent shall have the right, in its discretion
reasonably exercised without advising the Company, to reject any offers in
whole or in part.
Settlement
The receipt of immediately available funds in U.S. Dollars by the
Company in payment for a Note (less the applicable commission) and the
authentication and issuance of such Note shall, with respect to such Note,
constitute "Settlement." All offers accepted by the Company will be settled
from one to five Business Days from the date of acceptance by the Company
pursuant to the timetable for Settlement set forth below unless the Company
and the purchaser agree to Settlement on a later date; PROVIDED, HOWEVER,
that the Company will so notify the Trustee of any such later date on or
before the Business Day immediately prior to the Settlement date.
Settlement Procedures
In the event of a purchase of Notes by an Agent, as principal,
appropriate Settlement details will be set forth in the Purchase Agreement to
be entered into between such Agent and the Company pursuant to the
Distribution Agreement. In the event of the sale of a Multi-Currency Note or
an Indexed Note, additional or different Settlement details may be set forth
in the Amendment to be entered into between the Agents and the Company
pursuant to the Distribution Agreement.
Settlement procedures with regard to each Note sold through each Agent
shall be as follows:
A. Such Agent (the "Presenting Agent") will advise the Company by
telephone, telex or facsimile, of the following Settlement
information:
1. Exact name in which the Note is to be registered ("Registered
Owner").
2. Exact address of the Registered Owner and address for payment of
principal and interest, if any.
3. Taxpayer identification number of the Registered Owner.
4. Principal amount of the Note (and, if multiple Notes are to be
issued, denominations thereof).
5. Settlement date.
6. Stated Maturity.
7. Issue Price and any OID information.
8. Trade Date/Original Issue Date.
9. Interest rate:
(a) Fixed Rate Notes:
<PAGE>
(i) interest rate
(ii) overdue rate, if any
(b) Floating Rate Notes:
(i) interest rate basis
(ii) initial interest rate
(iii) spread or spread multiplier, if any
(iv) interest rate reset periods
(v) interest payment dates
(vi) index maturity
(vii) maximum and minimum interest rates, if any
(viii) record dates
(ix) interest determination dates
(x) overdue rate, if any
10. The date on or after which the Notes are redeemable at the option
of the Company, and additional redemption or repurchase
provisions, if any.
11. Wire transfer information.
12. Presenting Agent's Commission (to be paid in the form of a
discount from the proceeds remitted to the Company upon
Settlement).
B. The Company will confirm the above Settlement information to
the Trustee by telephone, telex or facsimile, and the Trustee will assign a
Note number to the transaction. If the Company rejects an offer, the Company
will promptly notify the Presenting Agent and the Trustee by telephone.
C. The Trustee will complete the first page of the preprinted
4-ply Note packet [NOTE: Such a packet need not be prepared if the Company
is utilizing the book-entry system, SEE procedures below], the form of which
was previously approved by the Company, the Agents and the Trustee.
D. The Trustee will deliver the Note (with the attached white
confirmation) and the yellow and blue stubs to the Presenting Agent. The
Presenting Agent will acknowledge receipt of the Note by completing the
yellow stub and returning it to the Trustee.
E. The Presenting Agent will cause to be wire transferred to a
bank account designated by the Company immediately available funds in U.S.
dollars in the amount of the principal amount of the Note, less the
applicable commission or discount, if any.
F. The Presenting Agent will deliver the Note (with the attached
white confirmation) to the purchaser against payment in immediately available
funds in the amount of the principal amount of the Note. The Presenting
Agent will deliver to the purchaser a copy of the most recent Prospectus as
amended or supplemented (including the Pricing Supplement) applicable to the
Note to such purchaser or its agent prior to or together with the earlier of
the delivery to such purchaser or its agent of (i) the confirmation of sale or
(ii) the Note.
<PAGE>
G. The Presenting Agent will obtain the acknowledgment of receipt
for the Note and Prospectus by the purchaser through the purchaser's
completion of the blue stub.
H. The Trustee will mail the pink stub to the Company's Chief
Financial Officer.
SETTLEMENT PROCEDURES TIMETABLE
For offers accepted by the Company, Settlement procedures "A" through
"H" set forth above shall be completed on or before the respective times set
forth below:
<TABLE>
<CAPTION>
----------------------------------------------------------------------------
----------------------------------------------------------------------------
Settlement Time (New York)
Procedure
----------------------------------------------------------------------------
<S> <C>
----------------------------------------------------------------------------
A 5 PM on date of order
----------------------------------------------------------------------------
B 3 PM on the Business Day prior to Settlement Date
----------------------------------------------------------------------------
C-D 12 Noon on the Settlement Date
----------------------------------------------------------------------------
E 2:15 PM on the Settlement date
----------------------------------------------------------------------------
F-G 3 PM on the Settlement Date
----------------------------------------------------------------------------
H 5 PM on Business Day after the Settlement Date
----------------------------------------------------------------------------
----------------------------------------------------------------------------
</TABLE>
Fails
In the event that a purchaser of a Note shall either fail to accept
delivery of or make payment for such Note on the date fixed by the Company
for Settlement, the Presenting Agent will immediately notify the Trustee and
the Company's Chief Financial Officer by telephone, confirmed in writing, of
such failure and return the Note to the Trustee. Upon the Trustee's receipt
of the Note from the Presenting Agent, the Company will promptly return to
the Presenting Agent an amount of immediately available funds in U.S. dollars
equal to any amount previously transferred to the Company in respect of the
Note pursuant to advances made by the Presenting Agent. Such returns will be
made on the Settlement date, if possible, and in any event not later than 12
noon (New York City time) on the Business Day following the Settlement date.
The Company will reimburse the Presenting Agent on an equitable basis for its
loss of the use of the funds during the period when the funds were credited
to the account of the Company. Upon receipt of the Note in respect of which
the default occurred, the Trustee will mark the Note "cancelled," make
appropriate entries in its records and deliver the Note to the Company with
an appropriate debit advice. The Presenting Agent will not be entitled to
any commission with respect to any Note which the purchaser does not accept
or make payment for.
Pricing Redemption
Except as otherwise specified in the applicable Pricing Supplement and
on the Notes, the Notes will not be redeemable prior to their Stated
Maturity. If so specified in a Pricing Supplement and on the Note, such Note
will be subject to redemption by the Company, at any time on or after the
date set forth on such supplement and the Note, in whole or from time to time
in part, at the option of the Company, at the redemption price set forth
therein, together with interest accrued thereon on the date of redemption.
Notice of redemption shall be given by first-class mail postage
prepaid, mailed not less than 30 calendar days nor more than 60 calendar days
prior to the date of redemption, to each holder of Notes to be redeemed, in
the manner and in accordance with the Indenture. In the event of redemption
in part of any Note, a new Note for the amount of the unredeemed portion
shall be issued in the name of the Holder upon cancellation of the redeemed
Note.
<PAGE>
Maturity
Upon presentation of each Certificated Note at Maturity the Trustee
(or any duly appointed paying Agent) will pay the principal amount thereof,
together with accrued interest through the date of redemption. Such payment
shall be made in immediately available funds in U.S. dollars, provided that
the Note is presented to the Trustee (or any such paying Agent) in time for
the Trustee (or such paying Agent) to make payments in such funds in
accordance with its normal procedures. The Company will provide the Trustee
(and any such paying Agent) with funds available for immediate use for such
purpose. Certificated Notes presented at Maturity will be cancelled by the
Trustee as provided in the Indenture.
Procedures for Establishing the Terms of the Notes
The Company and the Agents will discuss from time to time the rates to
be borne by the Notes that may be sold as a result of the solicitation of
offers by the Agents. Once an Agent has recorded any indication of interest
in Notes upon certain terms, and communicated with the Company, if the
Company accepts an offer to purchase Notes upon such terms, it will prepare a
Pricing Supplement in the form previously approved by the Presenting Agent,
reflecting the terms of such Notes and, after approval from the Presenting
Agent, will arrange to have such Pricing Supplement (together with the
Prospectus, if amended or supplemented) filed with the Commission and will
supply an appropriate number of copies of the Prospectus, as then amended or
supplemented, together with such Pricing Supplement, to the Presenting Agent.
See "Delivery of Prospectus" below. No settlements with respect to Notes upon
such terms may occur prior to such filing and the Presenting Agent will not,
prior to such filing, mail confirmations to customers who have offered to
purchase Notes upon such terms. After such filing, sales, mailing of
confirmations and settlements may occur with respect to Notes upon such
terms, subject to the provisions of "Delivery of Prospectus" below.
If the Company decides to post rates and a decision has been reached
to change interest rates, the Company will promptly notify each Agent. Each
Agent will forthwith suspend solicitation of purchases. At that time, the
Agents will recommend and the Company will establish rates to be so "posted."
Following establishment of posted rates and prior to the filing described in
the following sentence, the Agents may only record indications of interest in
purchasing Notes at the posted rates. Once any Agent has recorded any
indication of interest in Notes at the posted rates and communicated with the
Company, if the Company plans to accept an offer at the posted rate, it will
prepare a Pricing Supplement reflecting such posted rates and, after approval
from the Presenting Agent, will arrange to have such Pricing Supplement
(together with the Prospectus if amended or supplemented) filed with the
Commission and will supply an appropriate number of copies of the Prospectus,
as then amended or supplemented, to the Presenting Agent. See "Delivery of
Prospectus." No settlements at the posted rates may occur prior to such
filing and the Presenting Agent will not, prior to such filing, mail
confirmations to customers who have offered to purchase Notes at the posted
rates. After such filing, sales, mailing of confirmations and settlements
may resume, subject to the provisions of "Delivery of Prospectus" below.
Suspension of Solicitation; Amendment or Supplement
In the event that at the time the Agents, at the direction of the
Company, suspend solicitation of offers to purchase from the Company there
shall be any orders outstanding which have not been settled, the Company will
promptly advise the Agents and the Trustee whether such orders may be settled
and
<PAGE>
whether copies of the Prospectus as theretofore amended and/or supplemented
as in effect at the time of the suspension may be delivered in connection
with the settlement of such orders. The Company will have the sole
responsibility for such decision and for any arrangements which may be made
in the event that the Company determines that such orders may not be settled
or that copies of such Prospectus may not be so delivered.
Delivery of Prospectus
A copy of the Prospectus as most recently amended or supplemented on
the date of delivery thereof, together with the applicable Pricing
Supplement, must be delivered to a purchaser prior to or together with the
earlier of the delivery by the Agents of (i) the written confirmation of a
sale sent to a purchaser or his agent and (ii) any Note purchased by such
purchaser. The Company shall ensure that the Presenting Agent receives
copies of the Prospectus and each amendment or supplement thereto (including
the applicable Pricing Supplement) in such quantities and within such time
limits as will enable the Presenting Agent to deliver such confirmation or
Note to a purchaser as contemplated by these procedures and in compliance
with the preceding sentence. Copies of Pricing Supplements should be
delivered (i) if to Lehman Brothers Inc., c/o ADP, Prospectus Services, 536
Broad Hollow Road, Melville, New York 11747, Attention: Mike Ward, (516)
254-7106, telecopier: (516) 249-7942 and by hand to Lehman Brothers Inc., 3
World Financial Center, 9th floor, New York, New York 10285, Attention:
Brunnie Vazquez, telephone: (212) 526-8400, (ii) if to First Chicago Capital
Markets, Inc., 1 First National Plaza, Suite 0595, Chicago, Illinois 60670,
Attention: Corporate Securities Structuring, telephone: (312) 732-8270,
telecopier: (312) 732-4172 and (iii) if to NationsBanc Montgomery Services,
LLC,100 North Tryon Street, NC1-007-06-01, Charlotte, North Carolina 28255,
Attention: Debt Financing Group/Medium-Term Notes, telephone: (704) 386-7800,
telecopier: (704) 388-9939. If, since the date of acceptance of a
purchaser's offer, the Prospectus shall have been supplemented solely to
reflect any sale of Notes on terms different from those agreed to between the
Company and such purchaser or a change in posted rates not applicable to such
purchaser, such purchaser shall not receive the Prospectus as supplemented by
such new supplement, but shall receive the Prospectus as supplemented to
reflect the terms of the Notes being purchased by such purchaser and
otherwise as most recently amended or supplemented on the date of delivery of
the Prospectus. The Trustee will make all such deliveries with respect to
all Notes sold directly by the Company.
Authenticity of Signatures
The Company will cause the Trustee to furnish the Agents from time to
time with the specimen signatures of each of the Trustee's officers,
employees and Agents who have been authorized by the Trustee to authenticate
Notes, but the Agents will have no obligation or liability to the Company or
the Trustee in respect of the authenticity of the signature of any officer,
employee or agent of the Company or the Trustee on any Note.
Advertising Costs
The Company will determine with the Agents the amount and nature of
advertising that may be appropriate in offering the Notes. Advertising
expenses incurred with the consent of the Company will be paid by the
Company.
<PAGE>
Special Administrative Procedures
For Multi-Currency Notes
Unless otherwise set forth in an applicable Foreign Currency
Amendment, the following procedures and terms shall apply to Multi-Currency
Notes in addition to, and to the extent inconsistent therewith in replacement
of, the procedures and terms set forth above.
Denominations
The authorized denominations for Multi-Currency Notes will be set
forth in the applicable Pricing Supplement.
Currencies
Unless otherwise specified in the applicable Pricing Supplement,
purchasers of Multi-Currency Notes are required to pay for such
Multi-Currency Notes in the Specified Currency in immediately available
funds. If requested by the purchaser of the Multi-Currency Note on or prior
to the fifth Business Day preceding the date of delivery of the
Multi-Currency Notes (or by such other day as the Presenting Agent shall
determine), the Presenting Agent will arrange the conversion of U.S. dollars
into such Specified Currency to enable the purchaser to pay for the
Multi-Currency Notes. Each such conversion will be made by the Presenting
Agent on such terms and subject to such conditions, limitations and charges
as such Presenting Agent may from time to time establish in accordance with
its regular foreign exchange practices. All costs of exchange will be borne
by the purchasers of the Multi-Currency Notes.
Payment of Principal and Interest
The principal of, premium, if any, and interest on Multi-Currency
Notes will be payable in the Specified Currency. Unless otherwise indicated
in the applicable Pricing Supplement, the agent appointed by the Company (the
"Exchange Rate Agent") will convert all such payments of principal, premium,
if any, and interest to U.S. dollars. However, unless otherwise indicated in
the applicable Pricing Supplement, the holder of a Multi-Currency Note may
elect to receive such payments in the Specified Currency as described below.
Any U.S. dollar amount to be received by a holder of a Multi-Currency
Note will be based on the highest bid quotation in The City of New York
received by the Exchange Rate Agent at approximately 11:00 A.M., New York
City time, on the second Business Day preceding the applicable payment date
from three recognized foreign exchange dealers (one of which may be the
Exchange Rate Agent) for the purchase by the quoting dealer of the Specified
Currency for U.S. dollars for settlement on such payment date in the
aggregate amount of the Specified Currency payable to all holders of Notes
scheduled to receive U.S. dollar payments and at which the applicable dealer
commits to execute a contract. If such bid quotations are not available,
payments will be made in the Specified Currency. All currency exchange costs
will be borne by the holder of the Multi-Currency Note by deductions from
such payments.
A holder of a Multi-Currency Note may, unless otherwise specified in
the applicable Pricing Supplement, elect to receive payment of the principal
of, premium, if any, and interest on such Multi-Currency Notes in the
Specified Currency, by transmitting a written request for such payment by
mail, hand delivered, or by cable, telex or other form of facsimile
transmission to the principal office of the Trustee (acting as the Company's
paying agent in The City of New York) on or prior to the Record Date or at
least sixteen days prior to Maturity, as the case may be, such election to
remain in effect until revoked by written notice to the Trustee received by
the Trustee on or prior to the Record Date or at least sixteen days prior to
Maturity, as the case may be. A holder of a Multi-Currency Note
<PAGE>
may elect to receive payment in the Specified Currency for all principal,
premium, if any, and interest payments and need not file a separate election
for each payment.
Interest on Multi-Currency Notes paid in U.S. dollars will be paid in
the manner specified in the applicable Pricing Supplement. Unless otherwise
specified in the applicable Pricing Supplement, interest on Multi-Currency
Notes paid in the Specified Currency will be paid by wire transfer to a bank
account maintained by the holder in the country of the Specified Currency.
The principal of Multi-Currency Notes, together with interest accrued and
unpaid therein, due at Maturity will be paid in immediately available funds
against presentation of such Multi-Currency Notes at the principal office of
the Trustee, provided that principal, premium, if any, and interest payable
at Maturity in a Specified Currency will be paid by wire transfer to such
bank account. Any payment of principal or interest required to be made on an
Interest Payment Date or at Maturity of a Multi-Currency Note which is not a
Business Day need not be made on such day, but may be made on the next
succeeding Business Day with the same force and effect as if made on the
Interest Payment Date or Maturity, as the case may be, and no interest shall
accrue from the period from and after such Interest Payment Date or Maturity.
Payment Currency
If a Specified Currency is not available for payment of principal or
interest with respect to a Multi-Currency Note due to the imposition of
exchange controls or other circumstances beyond the reasonable control of the
Company, the Company will be entitled to satisfy its obligations to holders
of Multi-Currency Notes by making such payment in U.S. dollars on the basis
of the noon buying rate in The City of New York for cable transfers of the
Specified Currency as certified for customs purposes by the Federal Reserve
Bank of New York (the "Market Exchange Rate") on the second day prior to such
payment, or if such Market Exchange Rate is not then available, on the basis
of the most recently available Market Exchange Rate or as otherwise indicated
in the applicable Pricing Supplement. Any payment made under such
circumstances in U.S. dollars where required payment is in a Specified
Currency will not constitute a default under the Indenture.
Outstanding Multi-Currency Notes
For purposes of calculating the principal amount of any Multi-Currency
Note for any purpose under the Indenture, the principal amount of such
Multi-Currency Note at any time Outstanding shall be deemed to be the U.S.
dollar equivalent at the Market Exchange Rate, determined as of the date of
the original issuance of such Multi-Currency Note, of the principal amount of
such Multi-Currency Note.
Details for Settlement of Multi-Currency Notes
In addition to the Settlement information specified in "Settlement
Procedures" above, the Presenting Agent shall communicate to the Company in
the manner set forth in "Settlement Procedures" the following information:
1. Specified Currency
2. Denominations
3. Wire transfer and overseas bank account information (if holder has
elected payment in a Specified Currency).
<PAGE>
Whether the sale is through an Agent or to an Agent, as principal,
additional or different Settlement details may be set forth in an amendment
to these administrative procedures to be agreed to by such Agent and the
Company.
<PAGE>
Special Administrative Procedures for Book-Entry Notes
Each Note will be represented by either a Global Security delivered to
the Trustee, as agent for the Depository Trust Company ("DTC"), and recorded
in the book-entry system maintained by DTC or a certificate delivered to the
Holder thereof or a Person designated by such Holder. A Holder of a
Book-Entry Note will not be entitled to receive a certificate representing
such Note. In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, the Trustee will
perform the custodial, document control and administrative functions
described below, in accordance with its respective obligations under a Letter
of Representations from the Company and the Trustee to DTC and a Medium-Term
Note Certificate Agreement previously entered into between the Trustee and
DTC, and its obligations as a participant in DTC, including DTC's Same-Day
Funds Settlement System ("SDFS"). Except as otherwise set forth in this
Exhibit B, Book-Entry Notes will be issued in accordance with the
administrative procedures set forth below.
Issuance
On any date of settlement (as defined under "Settlement" below) of one
or more Fixed Rate Book-Entry Notes, the Company will issue a single Global
Security in fully registered form without coupons representing the principal
amount of all of such Notes that have the same original issuance date,
interest rate and Stated Maturity. Similarly, on any settlement date for one
or more Floating Rate Book-Entry Notes, the Company will issue a single
Global Security representing the principal amount of all of such Notes that
have the same interest rate formula, original issuance date, Initial Interest
Rate, Interest Payment Dates, Index Maturity, Spread, Spread Multiplier,
minimum interest rate (if any), maximum interest rate (if any) and Stated
Maturity. Each Global Security will be dated and issued as of the date of
its authentication by the Trustee. Each Global Security will have an
interest accrual date (the "Interest Accrual Date"), which will be (i) with
respect to an original Global Security (or any portion thereof), its original
issuance date and (ii) with respect to any Global Security (or portion
thereof) issued subsequently upon exchange of a Global Security or in lieu of
a destroyed, lost or stolen Global Security, the most recent Interest Payment
Date to which interest has been paid or duly provided for on the predecessor
Global Security or Securities (or if no such payment or provision has been
made, the original issuance date of the predecessor Global Security),
regardless of the date of authentication of such subsequently issued Global
Security. No Global Security will represent (i) both Fixed Rate and Floating
Rate Book-Entry Notes or (ii) any Certificated Note or (iii) any
Multi-Currency or Indexed Note.
Identification Numbers
The Company will arrange, on or prior to commencement of a program for
the offering of Book-Entry Notes, with the CUSIP Service Bureau of Standard &
Poor's Corporation (the "CUSIP Service Bureau") for the reservation of a
series of CUSIP numbers (including tranche numbers), consisting of
approximately 900 CUSIP numbers and relating to Global Securities
representing the Book-Entry Notes. The Trustee has or will obtain from the
CUSIP Service Bureau a written list of such series of reserved CUSIP numbers
and will deliver to the Company and DTC such written list of 900 CUSIP
numbers of such series. The Company will assign CUSIP numbers to Global
Securities as described below under Book Entry Settlement Procedure "B." DTC
will notify the CUSIP Service Bureau periodically of the CUSIP numbers that
the Company has assigned to Global Securities. The Trustee will notify the
Company at any time when fewer than 100 of the reserved CUSIP numbers remain
<PAGE>
unassigned to Global Securities, and if it deems necessary, the Company will
reserve additional CUSIP numbers for assignment to Global Securities
representing Book-Entry Notes. Upon obtaining such additional CUSIP numbers
the Trustee shall deliver such additional CUSIP numbers to the Company and
DTC.
Registration
Each Global Security will be registered in the name of Cede & Co., as
nominee for DTC, on the Securities Register maintained under the Indenture
governing such Global Security. The beneficial owner of a Book-Entry Note
(or one or more indirect participants in DTC designated by such owner) will
designate one or more participants in DTC (with respect to such Note, the
"Participants") to act as agent or Agents for such owner in connection with
the book-entry system maintained by DTC, and DTC will record in book-entry
form, in accordance with instructions provided by such Participants, a credit
balance with respect to such Note in the account of such Participants. The
ownership interest of such beneficial owner in such Note will be recorded
through the records of such Participants or through the separate records of
such Participants and one or more indirect participants in DTC.
Transfers
Transfers of a Book-Entry Note will be accomplished by book entries
made by DTC and, in turn, by Participants (and in certain cases, one or more
indirect participants in DTC) acting on behalf of beneficial transferors and
transferees of such Note.
Consolidation and Exchange
The Trustee may deliver to DTC and the CUSIP Service Bureau at any
time a written notice of consolidation specifying (i) the CUSIP numbers of
two or more Outstanding Global Securities that represent (A) Fixed Rate
Book-Entry Notes having the same original issuance date, interest rate and
Stated Maturity and with respect to which interest has been paid to the same
date or (B) Floating Rate Book-Entry Notes having the same interest rate
formula, original issuance date, Initial Interest Rate, Interest Payment
Dates, Index Maturity, Spread or Spread Multiplier, minimum interest rate (if
any), maximum interest rate (if any) and with respect to which interest has
been paid to the same date, (ii) a date, occurring at least thirty days after
such written notice is delivered and at least thirty days before the next
Interest Payment Date for such Book-Entry Notes, on which such Global
Securities shall be exchanged for a single replacement Global Security and
(iii) a new CUSIP number, obtained from the Company, to be assigned to such
replacement Global Security. Upon receipt of such a notice, DTC will send to
its participants (including the Trustee) a written reorganization notice to
the effect that such exchange will occur on such date. Prior to the
specified exchange date, the Trustee will deliver to the CUSIP Service Bureau
a written notice setting forth such exchange date and the new CUSIP number
and stating that, as of such exchange date, the CUSIP numbers of the Global
Securities to be exchanged will no longer be valid. On the specified
exchange date, the Trustee will exchange such Global Securities for a single
Global Security bearing the new CUSIP number and a new Interest Accrual Date,
and the CUSIP numbers of the exchanged Global Securities will, in accordance
with CUSIP Service Bureau procedures, be cancelled and not immediately
reassigned. Notwithstanding the foregoing, if the Global Securities to be
exchanged exceed $200,000,000 in aggregate principal amount, one Global
Security will be authenticated and issued to represent each $200,000,000 of
principal amount of the exchanged Global Securities and an additional Global
Security will be authenticated and issued to represent any remaining
principal amount of such Global Securities (see "Denominations" below).
Maturities
Each Book-Entry Note will mature on a date not less than nine months
after the settlement date for such Note. A Floating Rate Book-Entry Note
will mature only on an Interest Payment Date for
<PAGE>
such Note.
Denominations
Book-Entry Notes will be issued in principal amounts of $1,000 or any
amount in excess thereof that is an integral multiple of $1,000. Global
Securities representing one or more Book-Entry Notes will be denominated in
principal amounts not in excess of $200,000,000. If one or more Book-Entry
Notes having an aggregate principal amount in excess of $200,000,000 would,
but for the preceding sentence, be represented by a single Global Security,
then one Global Security will be issued to represent each $200,000,000
principal amount of such Book-Entry Note or Notes and an additional Global
Security will be issued to represent any remaining principal amount of such
Book-Entry Note or Notes. In such a case, each of the Global Securities
representing such Book-Entry Note or Notes shall be assigned the same CUSIP
number.
Interest
GENERAL. Interest on each Book-Entry Note will accrue from the
Interest Accrual Date of the Global Security representing such Note. Each
payment of interest on a Book-Entry Note will include interest accrued
through the day preceding, as the case may be, the Interest Payment Date or
Maturity; provided, however, that if the Interest Reset Dates with respect to
any such Note are daily or weekly, interest payable on any Interest Payment
Date, other than interest payable on any date on which principal for such
Note is payable, will include interest accrued from but excluding the second
preceding Regular Record Date to and including the next preceding Regular
Record Date. Interest payable at the Maturity of a Book-Entry Note will be
payable to the Person to whom the principal of such Note is payable.
Standard & Poor's Corporation will use the information received in the
pending deposit message described under Settlement Procedure "C" below in
order to include the amount of any interest payable and certain other
information regarding the related Global Security in the appropriate weekly
bond report published by Standard & Poor's Corporation.
On the first Business Day of January, April, July and October of each
year, the Trustee will deliver to the Company and DTC a written list of
Regular Record Dates and Interest Payment Dates that will occur with respect
to Floating Rate Book-Entry Notes during the six-month period beginning on
such first Business Day. Promptly after each Interest Determination Date
for Book Entry Notes which are Floating Rate Notes, the Company will
notify the Trustee, and the Trustee in turn will notify Standard & Poor's
Corporation, of the interest rates determined on such Interest Determination
Date.
Payments of Principal and Interest
PAYMENTS OF INTEREST ONLY. Promptly after each Regular Record Date,
the Trustee will deliver to the Company and DTC a written notice specifying
by CUSIP number the amount of interest to be paid on each Global Security on
the following Interest Payment Date (other than an Interest Payment Date
coinciding with Maturity) and the total of such amounts. DTC will confirm
the amount payable on each Global Security on such Interest Payment Date by
reference to the daily bond reports published by Standard & Poor's
Corporation. The Company will pay to the Trustee, as paying agent, the total
amount of interest due on such Interest Payment Date (other than at
Maturity), and the Trustee will pay such amount to DTC at the times and in
the manner set forth below under "Manner of Payment."
PAYMENTS AT MATURITY. On or about the first Business Day of each
month, the Trustee will deliver to the Company, DTC and the Trustee a written
list of principal and interest to be paid on each Global Security maturing in
the following month. The Company, the Trustee and DTC will confirm the
amounts of such principal and interest payments with respect to each such
Global Security on or about the fifth Business Day preceding the Maturity of
such Global Security. The Company will pay to
<PAGE>
the Trustee, as the paying agent, the principal amount of such Global
Security, together with interest due at such Maturity. The Trustee will pay
such amount to DTC at the times and in the manner set forth below under
"Manner of Payment."
Promptly after payment to DTC of the principal and interest due at the
Maturity of such Global Security, the Trustee will cancel such Global
Security and deliver it to the Company with an appropriate debit advice. On
the first Business Date of each month, the Trustee will prepare a written
statement indicating the total principal amount of Outstanding Global
Securities for which it serves as trustee as of the immediately preceding
Business Day.
MANNER OF PAYMENT. The total amount of any principal and interest due
on Global Securities on any Interest Payment Date or at Maturity shall be
paid by the Company to the Trustee in funds available for use by the Trustee
as of 9:30 A.M. (New York City time) on such date. The Company will make
such payment on such Global Securities by instructing the Trustee to withdraw
funds from an account maintained by the Company at the Trustee. The Company
will confirm such instructions in writing to the Trustee, with a copy to the
Trustee under the Indenture governing such Global Securities if such Global
Securities are of subordinated or junior subordinated rank. For maturity,
redemption or any other principal payments: prior to 10 A.M. (New York City
time) on such date or as soon as possible thereafter, the Trustee will make
such payments to DTC in same day funds in accordance with DTC's Same Day
Funds Settlement paying Agent Operating Procedures. For interest payments:
the Trustee will make such payments to DTC in accordance with existing
arrangements between DTC and the Trustee. DTC will allocate such payments to
its participants in accordance with its existing operating procedures.
Neither the Company (either as issuer or as paying Agent) nor the Trustee
shall have any direct responsibility or liability for the payment by DTC to
such Participants of the principal of and interest on the Book-Entry Notes.
The amount of any taxes required under applicable law to be withheld
from any interest payment on a Book-Entry Note will be determined and
withheld by the Participant, indirect participant in DTC or other Person
responsible for forwarding payments and materials directly to the beneficial
owner of such Note.
Book Entry Settlement Procedures
Settlement Procedures with regard to each Book-Entry Note sold by the
Company through an Agent, as agent, shall be as follows:
A. The Presenting Agent will advise the Company by telephone, telex
or facsimile, of the following settlement information:
1. Exact name in which Note is to be registered ("Registered Owner").
2. Exact address of the Registered Owner and address for payments of
principal and interest, if any.
3. Taxpayer identification number of the Registered Owner.
4. Principal amount of the Note (and, if multiple Notes are to be
issued, denominations thereof).
5. Settlement date.
6. Stated Maturity.
<PAGE>
7. Issue Price and any OID information.
8. Trade date.
9. The DTC Participant account number of such Agent.
10. Interest rate:
(a) Fixed Rate Notes:
i) interest rate
ii) overdue rate, if any
(b) Floating Rate Notes:
i) interest rate basis
ii) initial interest rate
iii) spread or spread multiplier, if any
iv) interest rate reset periods
v) interest payment dates
vi) index maturity
vii) maximum and minimum interest rates, if any
viii) record dates
ix) interest determination dates
x) overdue rate, if any
11. The date on or after which the Notes are redeemable at the option
of the Company, and additional redemption or repurchase
provisions, if any.
12. Wire transfer information.
13. Presenting Agent's commission (to be paid in the form of a
discount from the proceeds remitted to the Company upon
settlement).
B. The Company will assign a CUSIP number to the Global Security
representing such Note and then advise the Trustee by telephone
(confirmed in writing at any time on the same date) or electronic
transmission of the information set forth in Book Entry Settlement
Procedure "A" above, such CUSIP number and the name of such Agent. If
the Company rejects an offer, the Company will promptly notify the Agent
and the Trustee.
C. The Trustee will enter a pending deposit message through DTC's
Participant Terminal System, providing the following settlement
information to DTC, the Presenting Agent, Standard & Poor's Corporation
and, upon request, the Trustee under the Indenture pursuant to which such
Note is to be issued:
1. The information set forth in Book Entry Settlement Procedure "A."
2. Identification as a Fixed Rate Book-Entry Note or a Floating Rate
Book-Entry Note.
3. Initial Interest Payment Date for such Note, number of days by
which such date succeeds the related "DTC Record Date" (which term
means the Regular Record Date except in the case of floating rate
notes which reset daily or weekly in which case it means the date
5 calendar days immediately preceding the Interest Payment Date)
and
<PAGE>
amount of interest payable on such Interest Payment Date.
4. Frequency of interest payments (monthly, semiannually, quarterly,
etc.).
5. CUSIP number of the Global Security representing such Note.
6. Whether such Global Security will represent any other Book-Entry
Note (to the extent known at such time).
D. The Trustee will complete and authenticate the note certificate
evidencing the Global Security representing such Book-Entry Note.
E. DTC will credit such Note to the Trustee's participant account at
DTC.
F. The Trustee will enter an SDFS deliver order through DTC's
Participant Terminal System instructing DTC to (i) debit such Note to the
Trustee's participant account and credit such Note to the Presenting
Agent's participant account and (ii) debit the Presenting Agent's
settlement account and credit the Trustee's settlement account for an
amount equal to the price of such Note less the Presenting Agent's
commission.
G. The Presenting Agent will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC (i) to debit such Note
to the Presenting Agent's participant account and credit such Note to the
participant accounts of the Participants with respect to such Note and
(ii) to debit the settlement accounts of such Participants and credit the
settlement account of the Presenting Agent for an amount equal to the
price of such Note.
H. Transfers of funds in accordance with SDFS deliver orders
described in Settlement Procedures "F" and "G" will be settled in
accordance with SDFS operating procedures in effect on the settlement
date.
I. The Trustee will credit to an account of the Company maintained at
the Trustee funds available for immediate use in the amount transferred
to the Trustee in accordance with Settlement Procedure "F."
J. The Presenting Agent will deliver to the purchaser a copy of the
most recent Prospectus applicable to the Note with or prior to any
written offer of Notes and the confirmation and payment by the purchaser
of the Note.
The Presenting Agent will confirm the purchase of such Note to the
purchaser either by transmitting to the Participants with respect to such
Note a confirmation order or orders through DTC's institutional delivery
system or by mailing a written confirmation to such purchaser.
Settlement Procedures Timetable
For orders of Book-Entry Notes solicited by an Agent, as agent, and
accepted by the Company for settlement, Settlement Procedures "A" through "J"
set forth above shall be completed as soon as
<PAGE>
possible but not later than the respective times (New York City time) set
forth below:
<TABLE>
<CAPTION>
---------------------------------------------------------------
-----------------------------------------------------------------
Settlement Time
Procedures
-----------------------------------------------------------------
<S> <C>
-----------------------------------------------------------------
A-B 11:00 A.M. on the Sale date
-----------------------------------------------------------------
C 2:00 P.M. on the Sale date
-----------------------------------------------------------------
D 3:00 P.M. on date before Settlement date
-----------------------------------------------------------------
E 10:00 A.M. on Settlement date
-----------------------------------------------------------------
F-G 2:00 P.M. on Settlement date
-----------------------------------------------------------------
H 4:45 P.M. on Settlement date
-----------------------------------------------------------------
I-J 5:00 P.M. on Settlement date
-----------------------------------------------------------------
-----------------------------------------------------------------
</TABLE>
If a sale is to be settled more than one Business Day after the sale
date, Settlement Procedures "A," "B" and "C" shall be completed as soon as
practicable but no later than 11:00 A.M. and 2:00 P.M., as the case may be,
on the first Business Day after the sale date. If the initial interest rate
for a Floating Rate Book-Entry Note has not been determined at the time that
Settlement Procedure "A" is completed, Settlement Procedures "B" and "C"
shall be completed as soon as such rate has been determined but no later than
11:00 A.M. and 12:00 Noon, respectively, on the second Business Day before
the settlement date. Settlement Procedure "I" is subject to extension in
accordance with any extension of Fedwire closing deadlines and in the other
events specified in the SDFS operating procedures in effect on the settlement
date.
If settlement of a Book-Entry Note is rescheduled or canceled, the
Trustee will deliver to DTC, through DTC's Participant Terminal System, a
cancellation message to such effect by no later than 2:00 P.M. on the
Business Day immediately preceding the scheduled settlement date.
Failure to Settle
If the Trustee fails to enter an SDFS deliver order with respect to a
Book-Entry Note pursuant to Settlement Procedure "F," the Trustee may deliver
to DTC, through DTC's Participant Terminal System, as soon as practicable a
withdrawal message instructing DTC to debit such Note to the Trustee's
participant account. DTC will process the withdrawal message, provided that
the Trustee's participant account contains a principal amount of the Global
Security representing such Note that is at least equal to the principal
amount to be debited. If a withdrawal message is processed with respect to
all the Book-Entry Notes represented by a Global Security, the Trustee will
mark such Global Security "canceled," make appropriate entries in the
Trustee's records and send such canceled Global Security to the Company. The
CUSIP number assigned to such Global Security shall, in accordance with CUSIP
Service Bureau procedures, be canceled and not immediately reassigned. If a
withdrawal message is processed with respect to one or more, but not all, of
the Book-Entry Notes represented by a Global Security, the Trustee will
exchange such Global Security for two Global Securities, one of which shall
represent such Book-Entry Note or Notes and shall be canceled immediately
after issuance and the other of which shall represent the other Book-Entry
Notes previously represented by the surrendered Global Security and shall
bear the CUSIP number of the surrendered Global Security.
If the purchase price for any Book-Entry Note is not timely paid to
the Participants with respect to such Note by the beneficial purchaser
thereof (or a Person, including an indirect participant in DTC, acting on
behalf of such purchaser), such Participants and, in turn, the Agent for such
Note may enter SDFS deliver orders through DTC's Participant Terminal System
reversing the orders entered pursuant to Book Entry Settlement Procedures "F"
and "G," respectively. Thereafter, the Trustee will deliver the withdrawal
message and take the related actions described in the preceding paragraph.
Notwithstanding the foregoing, upon any failure to settle with respect
to a Book-Entry Note, DTC may take any actions in accordance with its SDFS
operating procedures then in effect. In the event of a failure to settle
with respect to one or more, but not all, of the Book-Entry Notes to have
been represented by a Global Security, the Trustee will provide, in
accordance with Book Entry Settlement Procedure "D," for the authentication
and issuance of a Global Security representing the other Book-Entry Notes to
have been represented by such Global Security and will make appropriate
entries in its records.
<PAGE>
Exhibit C
Centerpoint Properties Trust
Medium Term Notes
Purchase Agreement
centerpoint properties trust
Attention: Chief Financial Officer
The undersigned agrees to purchase the following principal amount of
the Medium Term Notes (the "Notes") described in the Distribution Agreement
dated October 23, 1998 (as it may be supplemented or amended from time to
time, the "Distribution Agreement"):
Principal Amount: $ ___________
Specified Currency:
Denominated and Indexed Currencies:
Interest Rate: ____%
Discount: ____% of Principal Amount
Aggregate Price to be paid to Company (in
immediately available funds):
$ __________
Settlement Date:
Other Terms:
[In the case of notes issued in a foreign currency or currency unit,
unless otherwise specified below, settlement and payments of principal and
interest will be in U.S. dollars based on the highest bid quotation in The City
of New York received by the Exchange Rate Agent at approximately 11:00 A.M., New
York City time, on the second Business Day preceding the applicable payment date
from three recognized foreign exchange dealers (one of which may be the Exchange
Rate Agent) for the purchase by the quoting dealer of the Specified Currency for
U.S. dollars for settlement on such payment date in the aggregate amount of the
Specified Currency payable to all holders of Notes denominated in such Specified
Currency electing to receive U.S. dollar payments and at which the applicable
dealer commits to execute a contract. If such bid quotations are not available,
payments will be made in the Specified Currency.]
Our obligation to purchase Notes hereunder is subject to the continued
accuracy of your representations and warranties contained in the Distribution
Agreement and to your performance and observance of all applicable covenants
and agreements contained therein, including, without limitation, your
obligations pursuant to Section 7 thereof. Our obligation hereunder is
subject to the further condition that we shall receive (a) the opinions
required to be delivered pursuant to Section 5(e) of the Distribution
Agreement, (b) the certificate required to be delivered pursuant to Section
5(f) of the
<PAGE>
Distribution Agreement and (c) the letter referred to in Section 5(g) of the
Distribution Agreement, in each case dated as of the above Settlement Date.
Terms used but not otherwise defined herein have the meanings assigned to
them in the Distribution Agreement.
In further consideration of our agreement hereunder, you agree that
between the date hereof and the above Settlement Date, you will not offer or
sell, or enter into any agreement to sell, any debt securities of the
Company, other than borrowings under the Company's revolving credit
agreements and lines of credit, as may be amended, supplemented or replaced,
the private placement of Company securities and issuances of the Company's
commercial paper, without our prior express written consent.
We may terminate this Agreement, immediately upon notice to you, at
any time prior to the Settlement Date, if prior thereto there shall have
occurred: (i) any change, or any development involving a prospective change,
in or affecting primarily the business, properties, condition (financial or
other), results of operations or prospects of the Company or the Company and
the Subsidiaries taken as a whole which materially impairs the investment
quality of the Notes; (ii) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange, the American Stock
Exchange or the over-the-counter market or the establishment of minimum
prices on such exchanges or such market by the Commission; (iii) a general
moratorium on commercial banking activities declared by Federal, Maryland or
New York State authorities; (iv) any downgrading in the rating accorded the
Company's debt securities by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) of the Rules and
Regulations), or any public announcement that any such organization has under
surveillance or review its rating of any debt securities of the Company
(other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such rating); (v)
any outbreak or escalation of major hostilities in which the United States is
involved, any declaration of war by Congress or any other substantial
national calamity or emergency if in the judgement of the Agent the effect of
any such event makes it impractical to proceed with completion of the sale of
and payment for the Notes; or (vi) any material adverse change in the
existing financial, political or economic conditions in the United States, or
you are unable to provide any of the opinions, certificates or letters
referred to in the second preceding paragraph. In the event of such
termination, no party shall have any liability to the other party hereto,
except as provided in Sections 4, 7 and 13 of the Distribution Agreement.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
[name of agent]
By:
--------------------------------
Authorized Signatory
Confirmed and Accepted: , 19
--
centerpoint properties trust
By:
----------------------------------
Authorized Signatory
<PAGE>
Exhibit D
[Foreign Currency] [Indexed Note]
Amendment No. ___
To Distribution Agreement Dated October 23, 1998, As Amended
[Insert Title of Foreign Currency or, in the case of
Indexed Notes, the Denominated and Indexed
Currencies]
The undersigned hereby agree that for the purposes of the issue and sale
of Notes denominated in [title of currency or currency unit] (the "Applicable
Foreign Currency") [and indexed to [title of currency or currency unit] (the
"Indexed Currency")] pursuant to the Distribution Agreement, dated October 23,
1998, as it may be amended (the "Distribution Agreement"), the following
additions and modifications shall be made to the Distribution Agreement.
The additions and modifications adopted hereby shall be of the same effect for
the sale under the Distribution Agreement of all Notes denominated in the
Applicable Foreign Currency [and indexed to the Indexed Currency], whether
offered on an agency or principal basis, but shall be of no effect with respect
to Notes denominated in any currency or currency unit other than the Applicable
Foreign Currency.
Except as otherwise expressly provided herein, all terms used herein
which are defined in the Distribution Agreement shall have the same meanings
as in the Distribution Agreement.
[Insert appropriate additions and modifications to the Distribution
Agreement, for example, to opinions of counsel, conditions to obligations and
settlement procedures, etc.]
Very truly yours,
Centerpoint properties trust
By:
----------------------------------
Authorized Signatory
Confirmed and Accepted: , 19___
[names of agents]
By:
----------------------------------
Authorized Signatory
<PAGE>
CALCULATION AND EXCHANGE RATE AGENT AGREEMENT
BETWEEN
CENTERPOINT PROPERTIES TRUST
AND
U.S. BANK TRUST NATIONAL ASSOCIATION
DATED AS OF OCTOBER 23, 1998
CenterPoint Properties Trust, a Maryland real estate investment trust
(the "Company"), proposes to issue and sell Medium-Term Notes (the "Notes")
from time to time under, and pursuant to, the terms of an Indenture, dated as
of April 7, 1998, between the Company and U.S. Bank Trust National
Association, as trustee (the "Trustee"), as supplemented by the Second
Supplemental Indenture dated as of October 23, 1998 between the Company and
the Trustee (as so supplemented, the "Indenture"). Capitalized terms used
herein not otherwise defined shall have the meanings assigned to them in the
Notes or the Indenture, as the case may be.
For the purpose of providing for an agent of the Company to calculate
the base rates applicable to those Notes on which interest is to accrue at a
variable or floating rate ("Floating Rate Notes"), determined by reference to
LIBOR, the Commercial Paper Rate, the Treasury Rate, the CD Rate, the CMT
Rate, the Federal Funds Rate or the Prime Rate (collectively, the "Base
Rates") as are specified and described in the Floating Rate Notes, copies of
which are attached hereto as Exhibit A, and to calculate exchange rates with
respect to Notes ("Non-Dollar Notes") denominated in any foreign or composite
currency ("Specified Currency") for the purpose of converting Specified
Currency into U.S. dollars and for other purposes, the Company and U.S. Bank
Trust National Association hereby agree as follows:
SECTION 1. APPOINTMENT OF CALCULATION AND EXCHANGE RATE AGENT. The
Company hereby appoints U.S. Bank Trust National Association as Calculation
and Exchange Rate Agent (the "Calculation and Exchange Rate Agent") of the
Company with respect to any Floating Rate Notes and Non-Dollar Notes to be
issued by the Company under and pursuant to the terms of the Indenture, and
the Calculation and Exchange Rate Agent hereby accepts its obligations as set
forth in the Agreement upon the terms and conditions set forth herein.
SECTION 2. (a) CALCULATION OF BASE RATES. As soon as reasonably
practical on or after each interest determination date for any Floating Rate
Note, the Calculation and Exchange Rate Agent shall determine the applicable
interest rate for such Note (computed without regard to the Spread or Spread
Multiplier, if any, applicable to such Note) (the "Interest Rate Base") and
notify the Company and the Trustee of such Interest Rate Base. Upon the
request of the Holder of any Floating Rate Note, the Calculation and Exchange
Rate Agent shall provide the Interest Rate Base then in effect with respect
to such Note and, if determined, the Interest Rate Base that will become
effective on the next Interest Reset Date with respect to such Note. All
Interest Rate
<PAGE>
Base determinations made by the Calculation and Exchange Rate Agent with
respect to the Floating Rate Notes, shall, in the absence of manifest error,
be conclusive for all purposes and binding upon the Company. Upon the
issuance and sale of any Floating Rate Note, the Company shall promptly cause
the Calculation and Exchange Rate Agent to receive a copy of the pricing
supplement with respect to such Note.
(b) DETERMINATION OF EXCHANGE RATES UPON ISSUANCE OF NOTES.
Upon any issuance of Non-Dollar Notes from time to time, the Calculation and
Exchange Rate Agent shall determine the U.S. dollar equivalent of the
aggregate public offering price or purchase price of such Notes on the basis
of the noon buying rate for cable transfers payable in the applicable Foreign
Currencies in the City of New York on the applicable issue date, as certified
for customs purposes by the Federal Reserve Bank of New York (the "Market
Exchange Rate").
(c) EXCHANGE OF CURRENCIES. With respect to any payments to
be made in respect of a Non-Dollar Note, the Calculation and Exchange Rate
Agent will determine the amount of any U.S. dollar payment in respect of such
Note by selecting at approximately 11:00 a.m., New York City time, on the
second Business Day preceding the applicable Payment Date, the indicative
quotations for the Specified Currency appearing at such time on the bank
composite or multi-contributor pages of the Quoting Source (as defined below)
for the first three banks, in descending order of their appearance, on a list
of banks to be agreed to by the Company and the Calculation and Exchange Rate
Agent (any of which may include an Agent or the Calculation and Exchange Rate
Agent) prior to such second Business Day, which are offering quotes on the
Quoting Source. The Calculation and Exchange Rate Agent shall select from
among the selected quotations the one which will yield the largest number of
U.S. dollars upon conversion from such Specified Currency. The "Quoting
Source" shall mean Reuters Monitor Foreign Exchange Service, or if the
Calculation and Exchange Rate Agent determines that such service is not
available, Telerate Monitor Foreign Exchange Service. If the Calculation and
Exchange Rate Agent determines that neither service is available, the Company
and the Calculation and Exchange Rate Agent shall agree on a comparable
display or other comparable manner of obtaining quotations and such display
or manner shall become the Quoting Source.
(d) DETERMINATION UPON UNAVAILABILITY OR NON-USE OF
SPECIFIED CURRENCY. Except as set forth below in subsection 2(e), if (i)
fewer than three bid quotations are available at the time a determination is
to be made by the Calculation and Exchange Rate Agent pursuant to subsection
2(c), or (ii) the Calculation and Exchange Rate Agent received no later than
12:00 noon, New York City time, on such second Business Day preceding the
applicable Payment Date notice from the Company that there exist exchange
controls or other circumstances beyond the Company's control rendering such
Specified Currency unavailable, then the Calculation and Exchange Rate Agent
shall, prior to such Payment Date, notify the Company and the Trustee of the
noon buying rate in New York City for cable transfers, in the Specified
Currency indicated in such notice, as certified for customers' purposes by
the Federal Reserve Bank of New York (the "Market Exchange Rate") as of such
second Business Day. If the Market Exchange Rate for such date is not then
available, the Calculation and Exchange Rate Agent shall immediately notify
the Company and the Trustee of the most recently available Market Exchange
Rate for such Specified Currency.
-2-
<PAGE>
(e) DETERMINATIONS UPON UNAVAILABILITY OR NON-USE OF ECU.
In the case of ECUs, if: (i) fewer than three bid quotations are available
at the time a determination is to be made by the Calculation and Exchange
Rate Agent pursuant to the preceding paragraph, or (ii) the Calculation and
Exchange Rate Agent received no later than 12:00 noon, New York City time, on
such second Business Day preceding the applicable Payment Date notice from
the Company that (A) there exist exchange controls or other circumstances
beyond the Company's control, rendering ECUs unavailable or (B) ECUs are no
longer used in the European Monetary System, rendering ECUs unavailable, then
the Calculation and Exchange Rate Agent shall, prior to such Payment Date,
notify the Company and the Trustee of the rate of conversion for ECUs into
U.S. dollars, determined as of such second Business Day on the following
basis: The component currencies of the ECUs for this purpose (the
"Components") shall be the currency amounts that were components of the ECUs
as of the last date on which ECUs were used in the European Monetary System.
The equivalent of ECUs in U.S. dollars shall be calculated by aggregating the
U.S. dollar equivalent of the Components. The U.S. dollar equivalent of each
of the Components shall be determined by the Calculation and Exchange Rate
Agent on the basis of the most recently available Market Exchange Rate for
the Components, or as otherwise specified to the Calculation and Exchange
Rate Agent by the Company.
(f) Upon determining any exchange rate as provided in this
Section, the Calculation and Exchange Rate Agent shall as soon as practicable
notify the applicable Trustee or Trustees, the paying agents and the Company
by telex or telecopy of such exchange rate.
SECTION 3. NEW BASE RATES. If the Company proposes to issue Floating
Rate Notes with an interest rate determined on a basis or formula not
referred to herein (a "New Base Rate"), the Company shall give a description
of such New Base Rate to the Calculation and Exchange Rate Agent. The
Calculation and Exchange Rate Agent shall determine if it is able and willing
to calculate the New Base Rate and, upon its agreement in writing to do so,
the term "Base Rate" shall be deemed to include the New Base Rate. If the
Calculation and Exchange Rate Agent notifies the Company that it is not able
or willing to calculate the New Base Rate, or that it is only willing to do
so on the basis of an increase of its fees not acceptable to the Company, the
Calculation and Exchange Rate Agent shall have no responsibility with respect
to such New Base Rate and the Company shall appoint a different calculation
agent to determine the New Base Rate.
SECTION 4. FEES AND EXPENSES. The Calculation and Exchange Rate Agent
shall be entitled to such compensation for its services under this Agreement
as may be agreed upon with the Company, and the Company shall pay such
compensation and shall reimburse the Calculation and Exchange Rate Agent for
all reasonable out-of-pocket expenses, disbursements and advances incurred or
made by the Calculation and Exchange Rate Agent in connection with the
services rendered by it under this Agreement, except any expenses,
disbursements or advances attributable to its gross negligence or bad faith.
SECTION 5. RIGHTS AND LIABILITIES OF CALCULATION AND EXCHANGE RATE
AGENT. The Calculation and Exchange Rate Agent shall incur no liability for,
or in respect of, any action
-3-
<PAGE>
taken, omitted to be taken or suffered by it in reliance upon any Floating
Rate Note or Non-Dollar Note, certificate, affidavit, instruction, notice,
request, direction, order, statement or other paper, document or
communication reasonably believed by it to be genuine. Any order,
certificate, affidavit, instruction, notice, request, direction, statement or
other communication from the Company made or given by it and sent, delivered
or directed to the Calculation and Exchange Rate Agent under, pursuant to or
as permitted by any provision of this Agreement shall be sufficient for
purposes of this Agreement if such communication is in writing and signed by
any officer of the Company. The Calculation and Exchange Rate Agent may
consult with counsel satisfactory to it and the opinion of such counsel shall
constitute full and complete authorization and protection of the Calculation
and Exchange Rate Agent with respect to any action taken, omitted to be taken
or suffered by it hereunder in good faith and in accordance with and in
reliance upon the opinion of such counsel. In acting under this Agreement,
the Calculation and Exchange Rate Agent (in its capacity as such) does not
assume any obligation towards, or any relationship of agency or trust for or
with the holders of the Notes.
SECTION 6. RIGHT OF CALCULATION AND EXCHANGE RATE AGENT TO OWN FLOATING
RATE OR NON-DOLLAR NOTES. The Calculation and Exchange Rate Agent may act as
Trustee under any Indenture and it, its officers, employees and shareholders
may become owners of, or acquire any interests in Floating Rate or Non-Dollar
Notes, with the same rights as if the Calculation and Exchange Rate Agent
were not the Calculation and Exchange Rate Agent, and may engage in, or have
an interest in, any financial or other transaction with the Company as if the
Calculation and Exchange Rate Agent were not the Calculation and Exchange
Rate Agent.
SECTION 7. DUTIES OF CALCULATION AND EXCHANGE RATE AGENT. The
Calculation and Exchange Rate Agent shall be obligated only to perform such
duties as are specifically set forth herein and no other duties or
obligations on the part of the Calculation and Exchange Rate Agent, in its
capacity as such, shall be implied by this Agreement.
SECTION 8. TERMINATION, RESIGNATION OR REMOVAL OF CALCULATION AND
EXCHANGE RATE AGENT. The Calculation and Exchange Rate Agent may at any time
terminate this Agreement by giving no less than 90 days' written notice to
the Company unless the Company consents in writing to a shorter time. Upon
receipt of notice of termination from the Calculation and Exchange Rate
Agent, the Company agrees promptly to appoint a successor Calculation and
Exchange Rate Agent. The Company may terminate this Agreement at any time by
giving written notice to the Calculation and Exchange Rate Agent and
specifying the date when the termination shall become effective; provided,
however, that no termination by the Calculation and Exchange Rate Agent or by
the Company shall become effective prior to the date of the appointment by
the Company, as provided in Section 9 hereof, of a successor Calculation and
Exchange Rate Agent and the acceptance of such appointment by such successor
Calculation and Exchange Rate Agent. Upon termination by either party
pursuant to the provisions of this Section, the Calculation and Exchange Rate
Agent shall be entitled to the payment of any compensation owed to it by the
Company hereunder and to the reimbursement of all reasonable out-of-pocket
expenses, disbursements and advances incurred or made by the Calculation and
Exchange Rate Agent in connection with the services rendered by it hereunder,
as provided by
-4-
<PAGE>
Section 4 hereof, and the provisions of Section 10 shall remain in effect
following such termination.
SECTION 9. APPOINTMENT OF SUCCESSOR CALCULATION AND EXCHANGE RATE
AGENT. Any successor Calculation and Exchange Rate Agent appointed by the
Company following termination of this Agreement pursuant to the provisions of
Section 8 hereof shall execute and deliver to the Calculation and Exchange
Rate Agent and to the Company an instrument accepting such appointment, and
thereupon such successor Calculation and Exchange Rate Agent shall, without
any further act or instrument become vested with all the rights, immunities,
duties and obligations of the Calculation and Exchange Rate Agent, with like
effect as if originally named as Calculation and Exchange Rate Agent
hereunder, and the Calculation and Exchange Rate Agent shall thereupon be
obligated to transfer and deliver, and such successor Calculation and
Exchange Rate Agent shall be entitled to receive and accept, copies of any
available records maintained by the Calculation and Exchange Rate Agent in
connection with the performance of its obligations hereunder.
SECTION 10. INDEMNIFICATION. The Company shall indemnify and hold
harmless the Calculation and Exchange Rate Agent, its officers and employees
from and against all actions, claims, damages, liabilities, losses and
expenses (including reasonable legal fees and expenses) relating to or
arising out of actions or omissions in any capacity hereunder, except
actions, claims, damages, liabilities, losses and expenses caused by the
gross negligence or willful misconduct of the Calculation and Exchange Rate
Agent, its officers and employees.
SECTION 11. MERGER, CONSOLIDATION OR SALE OF BUSINESS BY CALCULATION AND
EXCHANGE RATE AGENT. Any corporation into which the Calculation and Exchange
Rate Agent may be merged, converted, or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the
Calculation and Exchange Rate Agent may be a party, or any corporation to
which the Calculation and Exchange Rate Agent may sell or otherwise transfer
all or substantially all of its corporate trust business, shall, to the
extent permitted by applicable law, become the Calculation and Exchange Rate
Agent under this Agreement without the execution of any paper or any further
act by the parties hereto.
SECTION 12. NOTICES. Any notice or other communication given hereunder
shall be delivered in person, sent by letter, telecopy or telex or
communicated by telephone (subject, in the case of communication by
telephone, to written confirmation dispatched within 24 hours) to the
addresses given below or such other address as the party to receive such
notice may have previously specified:
-5-
<PAGE>
To the Company:
CenterPoint Properties Trust
1808 Swift Road
Oak Brook, Illinois 60523
Attention: Paul S. Fisher
Telecopy: (630) 586-8010
To the Calculation and Exchange Rate Agent:
U.S. Bank Trust National Association
One Illinois Center
111 East Wacker Drive
Suite 3000
Chicago, Illinois 60601
Attention: Patricia M. Trlak
Telecopy: (312) 228-9459
To the Trustee:
U.S. Bank Trust National Association
One Illinois Center
111 East Wacker Drive
Suite 3000
Chicago, Illinois 60601
Attention: Patricia M. Trlak
Telecopy: (312) 228-9459
Any notice hereunder given by letter, telecopy or telex shall be deemed to
have been received when it would have been received in the ordinary course of
post or transmission, as the case may be.
SECTION 13. BENEFIT OF AGREEMENT. Except as provided herein, this
Agreement is solely for the benefit of the parties hereto and their
successors and assigns and no other person shall acquire or have any rights
under or by virtue hereof. The terms "successors" and "assigns" shall not
include any purchasers of any Notes merely because of such purchase.
SECTION 14. GOVERNING LAW. This agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 15. This Agreement may be executed by one or more parties to
this Agreement on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
-6-
<PAGE>
IN WITNESS HEREOF, this Agreement has been entered into the day and year
first above written.
CENTERPOINT PROPERTIES TRUST
By:
-----------------------------------
Its:
----------------------------------
U.S. BANK TRUST NATIONAL ASSOCIATION
By:
-----------------------------------
Its:
----------------------------------
-7-
<PAGE>
EXHIBIT 1.3
October 23, 1998
U.S. Bank Trust National Association
One Illinois Center
111 East Wacker Drive, Suite 3000
Chicago, Illinois 60601
Attention: Patricia M. Trlak
RE: COMPANY ORDER
Ladies and Gentlemen:
Pursuant to Section 303 of the Indenture, dated as of April 7, 1998,
between CenterPoint Properties Trust, a Maryland real estate investment trust
(the "Company"), and U.S. Bank Trust National Association, a national banking
association organized under the laws of the United States of America, as
trustee (the "Trustee"), as supplemented by the First Supplemental Indenture,
dated as of April 7, 1998, between the Company and the Trustee, and by the
Second Supplemental Indenture, dated as of October 23, 1998 (as so
supplemented, the "Indenture"), between the Company and you, and the
authority granted by resolutions of the Board of Trustees of the Company
adopted on July 30, 1998, with respect to the Company's Medium-Term Notes Due
Nine Months or More from Date of Issue (the "Notes"), you, as Trustee, are
hereby ordered to complete, authenticate and deliver upon original issuance
from time to time, in the manner set forth in the Indenture and the
Administrative Procedures for Fixed Rate and Floating Rate Medium-Term Notes
Due Nine Months or More from Date of Issue, dated October 23, 1998, up to
$250,000,000 aggregate initial offering price of Notes, upon receipt of
instructions therefor from any one or more of the following officers of the
Company (each, an "Authorized Officer"): the Chairman of the Board, the
President or any Vice President. Such instructions, which will include the
specific terms of the Notes, shall be transmitted to you by telephone
(promptly confirmed in writing) or by facsimile transmission.
Notes to be completed, authenticated and delivered upon original
issuance from time to time shall be in the forms of the Fixed Rate Note and
Floating Rate Note attached hereto as Exhibit A and Exhibit B, respectively,
or in such other forms as hereafter may be designated.
Each of the undersigned certifies that he has made such examination of
the applicable provisions of the Indenture as he deems necessary or advisable
for purposes of the Company Order and that, upon delivery of instructions by
an Authorized Officer as referred to above, all conditions precedent relating
to the completion, authentication and delivery of the Notes by the Trustee
will have been complied with.
<PAGE>
U.S. Bank Trust National Association
October 23, 1998
Page 2
You may rely on this Company Order until you shall have received a
subsequent Company Order superseding or revoking this Company Order.
Very truly yours,
CENTERPOINT PROPERTIES TRUST
By:
--------------------------------------
Name: John S. Gates, Jr.
Title: President
By:
--------------------------------------
Name: Paul S. Fisher
Title: Executive Vice President, Chief
Financial Officer and Secretary
<PAGE>
[Form of Face of Security]
[Floating Rate Medium-Term Note]
REGISTERED REGISTERED
No. FLR- PRINCIPAL AMOUNT:
CUSIP
CENTERPOINT PROPERTIES TRUST
MEDIUM-TERM NOTE, SERIES A
[INSERT IF THE SECURITY IS TO BE A GLOBAL SECURITY, -- This Security is a
Global Security within the meaning of the Indenture referred to on the reverse
hereof and is registered in the name of a Depositary or a nominee of a
Depositary. This Security is exchangeable for Securities registered in the name
of a Person other than the Depositary or its nominee only in the limited
circumstances described in the Indenture, and this Security may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary.
Unless this certificate is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York, New York), a New York
corporation, to the Company or its agent for registration of transfer, exchange
or payment, and any certificate issued is registered in the name of Cede & Co.
or such other name as requested by an authorized representative of The
Depository Trust Company (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of The Depository Trust
Company), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co.,
has an interest herein.]
ORIGINAL ISSUE DATE: STATED MATURITY:
INITIAL INTEREST RATE %:
FL-1
<PAGE>
AUTHORIZED EXCHANGE RATE
DENOMINATIONS: AGENT:
(only applicable if (Only applicable
Specified Currency is if Specified
other than U.S. Currency is other
Dollars) than U.S. Dollars)
INTEREST RATE BASIS:
INDEX MATURITY:
CALCULATION DATES:
OID AMOUNT: EXCHANGE RATE:
(Only applicable if U.S. $1.00= ____
issued at Original
issue discount)
ORIGINAL ISSUE DEFAULT INTEREST
DISCOUNT SECURITY: RATE:
Yes____ No:____
SPREAD: SPREAD MULTIPLIER:
SPECIFIED CURRENCY:
MINIMUM INTEREST MAXIMUM INTEREST
RATE: RATE:
INTEREST PAYMENT
DATES:
REGULAR RECORD DATES:
FL-2
<PAGE>
[Third Wednesday] of: ___ March
___ June
___ September
___ December
_______________
_______________
INTEREST RESET DATES: INTEREST RESET PERIOD:
INTEREST DETERMINATION DATES:
[Third Wednesday] of:
CALCULATION AGENT: REDEMPTION
COMMENCEMENT DATE:
REDEMPTION PERIODS: REDEMPTION PRICES:
PREMIUM REDEMPTION
AMOUNT:
MAKE-WHOLE PREMIUM
AMORTIZATION AMORTIZATION
FORMULA: PAYMENT DATE(S):
OPTIONAL REPAYMENT
DATE(S):
FLOATING/FIXED RATE NOTE: REPAYMENT DATES:
Yes:___ No:___
Fixed Interest Rate:
Fixed Interest Rate
Commencement Date:
FL-3
<PAGE>
INVERSE FLOATING RATE NOTE:
Yes:___ No:___
Fixed Interest Rate:
OTHER PROVISIONS/ADDENDA:
FL-4
<PAGE>
OTHER PROVISIONS:
CenterPoint Properties Trust, a real estate investment trust duly
organized and existing under the laws of the State of Maryland (herein called
the "Company", which term includes any successor entity under the Indenture
referred to on the reverse hereof), for value received, hereby promises to
pay to ________________________, or registered assigns, the principal sum of
________________ on the Stated Maturity specified above and to pay interest
thereon from the Original Issue Date specified above or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
on the Interest Payment Dates in each year specified above and at Stated
Maturity, commencing on the first such Interest Payment Date next succeeding
the Original Issue Date (or, if the Original Issue Date is after a Regular
Record Date and before the Interest Payment Date immediately following such
Regular Record Date, on the second such Interest Payment Date next succeeding
the Original Issue Date), at a rate per annum equal to the Initial Interest
Rate specified above until the first Interest Reset Date following the
Original Issue Date and on and after such Interest Reset Date at the rate
determined in accordance with the provisions set forth on the reverse hereof,
until the principal hereof is paid or made available for payment, and at the
rate of ...% per annum on any overdue principal and premium (including any
overdue sinking fund or redemption payment) and on any overdue installment of
interest. The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in such Indenture, be paid to
the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the 15th calendar day (whether or not a
Business Day) immediately preceding such Interest Payment Date; PROVIDED,
HOWEVER, that interest payable at Stated Maturity will be payable to the
Person to whom principal shall be payable. If this Security is designated
above as an Amortizing Security, then payments of principal and interest will
be made in installments over the life of this Security on each Interest
Payment Date set forth above, and at Stated Maturity or upon earlier
redemption or repayment or otherwise in accordance with any Amortization
Formula or on any Amortization Date set forth above. Any such interest not
so punctually paid or duly provided for shall forthwith cease to be payable
to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment
of such Defaulted Interest to be fixed by the Trustee, notice of which shall
be given to Holders of Securities of this series not less than 10 days prior
to such
FL-5
<PAGE>
Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
Payment of principal of (and premium, if any) and any such interest on
this Security will be made in the Specified Currency specified above;
PROVIDED, HOWEVER, that, if this Security is denominated in other than U.S.
dollars, payments of principal (and premium, if any) and interest on this
Security will nevertheless be made in U.S. dollars: (a) at the option of the
Holder of this Security under the procedures described in the two next
succeeding paragraphs and (b) at the Company's option in the case of
imposition of exchange controls or other circumstances beyond the Company's
control as described below. The Company will at all times appoint and
maintain a Paying Agent (which may be the Trustee) authorized by the Company
to pay the principal of (and premium, if any) or interest on any Securities
of this series on behalf of the Company and having an office or agency (the
"Paying Agent Office") in the City of New York (the "Place of Payment"),
where Securities of this series may be presented or surrendered for payment
and where notices, designations or requests in respect of payments with
respect to Securities of this series may be served. The Company has
initially appointed U.S. Bank Trust National Association as such Paying
Agent. The Company will give prompt written notice to the Trustee of any
change in such appointment.
Except as provided in the next paragraph, payments of interest and
principal (and premium, if any) on this Security, if denominated in a
Specified Currency other than U.S. dollars, will be made in U.S. dollars if
the registered Holder of this Security on the relevant Regular Record Date,
or at the Stated Maturity, redemption or repayment of such Security, as the
case may be, has transmitted a written request for such payment in U.S.
dollars to the Paying Agent at the Paying Agent Office in the Place of
Payment on or before such Regular Record Date, or the date 15 days before
such Stated Maturity, redemption or repayment, as the case may be. Such
request may be in writing (mailed or hand delivered) or by cable, telex or
other form of facsimile transmission. Any such request made for any Security
by a registered Holder will remain in effect for any further payments of
interest and principal (and premium, if any) on such Security payable to such
Holder, unless such request is revoked on or before the relevant Regular
Record Date or the date 15 days before the Stated Maturity, redemption or
repayment of such Security, as the case may be.
FL-6
<PAGE>
The U.S. dollar amount to be received by a Holder of a Note denominated
in other than U.S. dollars who elects to receive payment in U.S. dollars will
be determined by the exchange rate agent (the "Exchange Rate Agent"), at
approximately 11:00 a.m., New York City time, on the second Business Day
preceding the applicable Payment Date, by selecting the indicative quotations
for the Specified Currency appearing at such time on the bank composite or
multi-contributor pages of the Quoting Source (as defined below) for the
first three banks, in descending order of their appearance, on a list of
banks to be agreed to by the Company and the Exchange Rate Agent (which may
include an Agent or the Calculation and Exchange Rate Agent) prior to such
second Business Day, which are offering quotes on the Quoting Source. The
Exchange Rate Agent shall select from among the selected quotations the one
which will yield the largest number of U.S. dollars upon conversion from such
Specified Currency. The "Quoting Source" shall mean Reuters Monitor Foreign
Exchange Service, or if the Exchange Rate Agent determines that such service
is not available, Telerate Monitor Foreign Exchange Service. If the Exchange
Rate Agent determines that neither service is available, the Company and the
Exchange Rate Agent shall agree on a comparable display or other comparable
manner of obtaining quotations and such display or manner shall become the
Quoting Source.
In the case of a Specified Currency other than ECUs, if (i) fewer than
three bid quotations are available at the time a determination is to be made
by the Exchange Rate Agent pursuant to the preceding paragraph, or (ii) the
Exchange Rate Agent received no later than 12:00 noon, New York City time, on
such second Business Day preceding the applicable Payment Date notice from
the Company that there exist exchange controls or other circumstances beyond
the Company's control rendering such Specified Currency unavailable, then the
Exchange Rate Agent shall, prior to such Payment Date, notify the Company and
the Trustee of the noon buying rate in New York City for cable transfers, in
the Specified Currency indicated in such notice, as certified for customers'
purposes by the Federal Reserve Bank of New York (the "Market Exchange Rate")
as of such second Business Day. If the Market Exchange Rate for such date is
not then available, the Exchange Rate Agent shall immediately notify the
Company and the Trustee of the most recently available Market Exchange Rate
for such Specified Currency. In the case of ECUs, if: (i) fewer than three
bid quotations are available at the time a determination is to be made by the
Exchange Rate Agent pursuant to the preceding paragraph, or (ii) the Exchange
Rate Agent received no later than 12:00 noon, New York City time, on such
second Business Day preceding the applicable Payment Date notice from the
Company that (A) there exist exchange controls or other circumstances beyond
the
FL-7
<PAGE>
Company's control, rendering ECUs unavailable or (B) ECUs are no longer used
in the European Monetary System, rendering ECUs unavailable, then the
Exchange Rate Agent shall, prior to such Payment Date, notify the Company and
the Trustee of the rate of conversion for ECUs into U.S. dollars, determined
as of such second Business Day on the following basis: The component
currencies of the ECUs for this purpose (the "Components") shall be the
currency amounts that were components of the ECUs as of the last date on
which ECUs were used in the European Monetary System. The equivalent of ECUs
in U.S. dollars shall be calculated by aggregating the U.S. dollar equivalent
of the Components. The U.S. dollar equivalent of each of the Components
shall be determined by the Exchange Rate Agent on the basis of the most
recently available Market Exchange Rate for the Components, or as otherwise
specified to the Exchange Rate Agent by the Company.
The Holder by his or her acceptance of this Security hereby agrees that
all currency exchange costs associated with any payment in U.S. dollars on
this Security will be borne by the Holder hereof by deductions from such
payment. If this Security is denominated in a Specified Currency other than
U.S. dollars, (i) the Company will at all times appoint and maintain a
banking institution that is not an Affiliate of the Company as Exchange Rate
Agent hereunder; and (ii) the Company has initially appointed U.S. Bank Trust
National Association as such Exchange Rate Agent and will give prompt written
notice to the Trustee of any change in such appointment.
Payment of the principal of (and premium, if any) and interest on any
Security of this series due at the Stated Maturity, redemption or repayment
of such Security will be made in immediately available funds upon surrender
of such Security to the Paying Agent at the Paying Agent Office in the Place
of Payment; PROVIDED that such Security is presented to the Paying Agent in
time for the Paying Agent to make such payment in accordance with its normal
procedures. Payments of interest on any Security of this series (other than
at the Stated Maturity, redemption or repayment of such Security) will be
made by check mailed to the address of the Person entitled thereto as it
appears in the Security Register or by wire transfer to such account as may
have been appropriately designated to the Paying Agent by such Person.
If the principal of (and premium, if any) or interest on any Security of
this series is payable in other than U.S. dollars and such Specified Currency
is not available, due to the imposition of exchange controls or other
circumstances beyond the control of the Company, the Company will be entitled
to satisfy its obligations to
FL-8
<PAGE>
the Holder of such Security by making such payments in U.S. dollars on the
basis of the most recently available Exchange Rate (as defined on the reverse
hereof) and the payment in U.S. dollars shall not be an Event of Default
hereunder.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof or its Authenticating Agent by
manual signature, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
FL-9
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: CENTERPOINT PROPERTIES TRUST
By ____________________________________
[SEAL] Name:
Title:
Attest:
____________________________________
Secretary
FL-10
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities issued under the within-mentioned Indenture.
U.S. BANK TRUST NATIONAL ASSOCIATION
As Trustee
By ____________________________________
Authorized Signatory
FL-11
<PAGE>
[Form of Reverse of Security]
[Floating Rate Medium-Term Note]
CENTERPOINT PROPERTIES TRUST
MEDIUM-TERM NOTE, SERIES A
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or
more series under an Indenture, dated as of April 7, 1998, between the
Company and U.S. Bank Trust National Association, as Trustee (herein called
the "Trustee," which term includes any successor trustee under the
Indenture), as supplemented by the First Supplemental Indenture between the
Trustee and the Company dated as of April 7, 1998 and the Second Supplemental
Indenture, dated as of October 23, 1998, between the Company and the Trustee
(collectively, the "Indenture") to which Indenture and all indentures
supplemental thereto relating to the Medium Term Notes, Series A, reference
is hereby made for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof. The Securities of this series may be issued
upon original issuance under the Indenture from time to time at an aggregate
initial public offering price not to exceed $250,000,000 or its equivalent in
foreign currencies, currency units or composite currencies. The aggregate
principal amount of Securities of this series which may be issued under the
Indenture will be limited to the aggregate of the principal amounts of the
Securities of this series so issued upon original issuance in accordance with
such limit.
The interest borne by this Security shall be determined as follows:
(i) Unless designated as a Floating Rate/Fixed Rate Note or an
Inverse Floating Rate Note, this Security will be designated a "Regular
Floating Rate Note" and, except as described below or in an Addendum
hereto, will bear interest at the rate determined by reference to the Rate
Basis
FL-(R)-1
<PAGE>
(i) plus or minus the Spread, if any, and/or (ii) multiplied by the Spread
Multiplier, if any.
(ii) If designated as a Floating Rate/Fixed Rate Note, then,
except as described below or in an Addendum hereto, this Security will
initially bear interest at the rate determined by reference to the Rate
Basis (i) plus or minus the Spread, if any, and/or (ii) multiplied by
the Spread Multiplier, if any. The interest rate in effect commencing
on, and including, the Fixed Rate Commencement Date to Maturity shall be
the Fixed Interest Rate, if such rate is specified on the face of this
Security, or if no such Fixed Interest Rate is so specified and the
Floating Rate/Fixed Rate Note is still outstanding on such day, the
interest rate in effect thereon on the day immediately preceding the
Fixed Rate Commencement Date.
(iii) If designated as an Inverse Floating Rate Note, then, except
as described below or in an Addendum hereto, this Security will bear
interest equal to the Fixed Interest Rate specified on the face of this
Security minus the rate determined by reference to the Rate Basis (i) plus
or minus the Spread, if any, and/or (ii) multiplied by the applicable
Spread Multiplier, if any; provided, however, unless otherwise specified on
the face of this Security or in an Addendum hereto, the interest rate
thereon will not be less than zero.
This Security may bear interest calculated based upon two or more
Interest Rate Bases.
The rate of interest on this Security will be reset daily, weekly,
monthly, quarterly, semi-annually or annually (such period being the
"Interest Reset Period," and the first date of each Interest Reset Period
being an "Interest Reset Date"), depending on the Interest Reset Period
specified on the face hereof; PROVIDED, HOWEVER, that the interest rate in
effect from the Original Issue Date to the first Interest Reset Date will be
the Initial Interest Rate specified on the face hereof; and PROVIDED FURTHER
that, with respect to Floating Rate/Fixed Rate Notes, the fixed rate of
interest in effect for the period from the Fixed Rate Commencement Date until
the Maturity Date shall be the Fixed Interest Rate or the interest rate in
effect on the day immediately preceding the Fixed Rate Commencement Date, as
specified on the face hereof. Except as provided in the next sentence and in
the paragraph below (i.e., under the caption "Treasury Rate"), the Interest
Reset Date will be, if this Security resets daily (unless the Interest Rate
Basis for this Security is the Treasury Rate), each Business Day; if this
Security resets weekly (unless the Interest Rate Basis for
FL-(R)-2
<PAGE>
this Security is the Treasury Rate), the Wednesday of each week; if this
Security resets weekly and the Interest Rate Basis for this Security is the
Treasury Rate, the Tuesday of each week; if this Security resets monthly, the
third Wednesday of each month; if this Security resets quarterly, the third
Wednesday of each March, June, September and December; if this Security
resets semi-annually, the third Wednesday of two months of each year, as
specified on the face hereof; if this Security resets annually, the third
Wednesday of one month of each year, as specified on the face hereof; and if
this security resets at intervals other than those described above, the
date(s) specified on the face hereof. If any Interest Reset Date would
otherwise be a day that is not a Market Day for this Security, the Interest
Reset Date shall be postponed to the next day that is a Market Day for this
Security, except that if the Interest Rate Basis specified on the face hereof
is LIBOR and such next succeeding Market Day is in the next succeeding
calendar month, such Interest Reset Date shall be the immediately preceding
Market Day for this Security. In addition, if the Treasury Rate is the
Interest Rate Basis for this Security and the Interest Determination Date
would otherwise fall on an Interest Reset Date, then such Interest Reset Date
will be postponed to the next succeeding Business Day.
"Market Day" means, (i) for any Security other than a Security whose
Interest Rate Basis is LIBOR, any Business Day in the City of New York, New
York, and the City of Chicago, Illinois, and, (ii) for any Security whose
Interest Rate Basis is LIBOR, any Business Day in the City of New York, New
York, and the City of Chicago, Illinois, which is also a day on which
dealings in deposits in U.S. dollars are transacted in the London interbank
market (each day on which dealings in deposits in U.S. dollars are transacted
in the London interbank market, a "London Business Day"). "Business Day"
means, with respect to any particular location, each Monday, Tuesday,
Wednesday, Thursday and Friday that is not a day on which banking
institutions in such location are authorized or obligated by law or executive
order to close.
If an Interest Payment Date (other than at Stated Maturity, a Redemption
Date or an Optional Repayment Date (as defined hereinafter) with respect to
this Security would otherwise fall on a day that is not a Market Day with
respect to this Security (and if this Security is denominated in other than
U.S. dollars, a Business Day in the country issuing the Specified Currency
(or, for ECUs, Brussels)), such Interest Payment Date will be on the next
succeeding Market Day (with interest accruing to but excluding the next
succeeding Market Day) (or, if the Interest Rate Basis for this Security is
LIBOR, if such day falls in the next calendar month, the next preceding
Market Day (with interest accruing to but excluding the next preceding Market
Day)). If the Stated Maturity, Redemption Date or Optional
FL-(R)-3
<PAGE>
Repayment Date of this Security falls on a day that is not a Market Day (and
if this Security is denominated in other than U.S. dollars, a Business Day in
the country issuing the Specified Currency (or, for ECUs, Brussels)), the
required payment of principal, premium, if any, and interest will be made on
the next succeeding Market Day as if made on the date such payment was due,
and no interest will accrue on such payment for the period from and after the
Stated Maturity, Redemption Date or Optional Repayment Date, as the case may
be, to the date of such payment on the next succeeding Market Day.
Except as otherwise specified, the rate of interest on this Security for
each Interest Reset Date shall be the rate determined in accordance with the
provisions below corresponding to the Interest Rate Basis specified on the
face hereof:
COMMERCIAL PAPER RATE. If the Interest Rate Basis of this Security
is the Commercial Paper Rate, the interest rate hereon for any Interest
Reset Date shall equal (a) the Money Market Yield (calculated as
described below) of the per annum rate (quoted on a bank discount basis)
on the relevant Commercial Paper Interest Determination Date for
commercial paper having the Index Maturity specified on the face hereof,
(i) as such rate is published by the Board of Governors of the Federal
Reserve System in "Statistical Release H.15(519), Selected Interest
Rates" or any successor publication of the Board of Governors of the
Federal Reserve System ("H.15(519)") under the heading "Commercial
Paper" or (ii) if such rate is not published before 3:00 p.m., New York
City time, on the relevant Calculation Date, then as such rate is
published by the Federal Reserve Bank of New York in its daily
statistical release, "Composite 3:30 p.m. Quotations for U.S. Government
Securities" or any successor publication published by the Federal
Reserve Bank of New York ("Composite Quotations") under the heading
"Commercial Paper" or (b) if by 3:30 p.m. New York City time, on such
Calculation Date, such rate is not yet published in either H.15(519) or
Composite Quotations, the Money Market Yield of the arithmetic mean of
the offered per annum rates (quoted on a bank discount basis), as of
11:00 a.m., New York City time, on such Commercial Paper Interest
Determination Date, of three leading dealers of commercial paper in the
City of New York selected by the Calculation Agent for commercial paper
of the Index Maturity specified on the face hereof placed for an
industrial issuer whose bond rating is "AA," or the equivalent, from a
nationally recognized rating agency, in any of the above cases (a) or
(b) as adjusted (x) by the addition or subtraction of the Spread, if
any, specified on the face hereof, and (y) by the multiplication by the
Spread Multiplier, if any, specified on the face hereof; PROVIDED,
FL-(R)-4
<PAGE>
HOWEVER, that, if fewer than three dealers selected as provided above by
the Calculation Agent are quoting as mentioned in this sentence, the
interest rate hereon for such Interest Reset Date will be the interest
rate hereon in effect on such Commercial Paper Interest Determination
Date.
"Money Market Yield" shall be a yield (expressed as a percentage)
calculated in accordance with the following formula:
Money Market Yield = 100 x 360 x D
---------------
360 - (D x M)
where "D" refers to the per annum rate for commercial paper quoted on a
bank discount basis and expressed as a decimal and "M" refers to the
actual number of days in the period from the Interest Reset Date to but
excluding the day that numerically corresponds to such Interest Rate
Date (or, if there is not any such numerically corresponding day, the
last day) in the calendar month that is the number of months
corresponding to the specific Index Maturity after the month in which
such Interest Reset Date falls.
PRIME RATE. If the Interest Rate Basis of this Security is the Prime
Rate, the interest rate hereon for any Interest Reset Date shall equal
(a)(i) the rate for the relevant Prime Rate Interest Determination Date set
forth in H.15(519) under the heading "Bank Prime Loan," or (ii) if such
rate is not published before 3:00 p.m., New York City time, on the relevant
Calculation Date, then the arithmetic mean of the rates of interest
publicly announced by each bank that appears on the display designated as
page "USPRIME1" on the Reuters Monitor Money Rates Service or any successor
service (or such other page as may replace the USPRIME1 page on that
service or any successor service for the purpose of displaying prime rates
or base lending rates of major United States banks) ("Reuters Screen
USPRIME1 Page") as such bank's prime rate or base lending rate as in effect
for such Prime Rate Interest Determination Date as quoted on the Reuters
Screen USPRIME1 Page on such Prime Rate Interest Determination Date or
(b) if fewer than four such rates appear on the Reuters Screen USPRIME1
Page on such Prime Rate Interest Determination Date, the arithmetic mean
of the prime rates or base lending rates (quoted on the basis of the actual
number of days in the year divided by a 360-day year) as of the close of
business on such Prime Rate Interest Determination Date by four major
money center banks in the City of New York selected by the Calculation
Agent, in any of the above cases (a) or (b) as adjusted (x) by the
addition or subtraction of the Spread, if any,
FL-(R)-5
<PAGE>
specified on the face hereof, and then (y) by the multiplication by the
Spread Multiplier, if any, specified on the face hereof; PROVIDED,
HOWEVER, that, if fewer than four banks selected as provided above by
the Calculation Agent are quoting as mentioned in this sentence, the
interest rate hereon for such Interest Reset Date will be the interest
rate hereon in effect on such Prime Rate Interest Determination Date.
LIBOR. If the Interest Rate Basis of this Security is LIBOR, the
interest rate hereon for any Interest Reset Date shall be determined by
the Calculation Agent in accordance with the following provisions:
(a) The Calculation Agent will determine either (i) the
arithmetic mean of the offered rates for deposits in U.S. dollars
for the period of the applicable Index Maturity commencing on the
Interest Reset Date which appear on the Reuters Screen LIBO Page at
approximately 11:00 a.m., London time, on such LIBOR Interest
Determination Date if at least two such offered rates appear on the
Reuters Screen LIBO Page ("LIBOR Reuters"), or (ii) the rate for
deposits in U.S. dollars for the period of the applicable Index
Maturity commencing on the Interest Reset Date that appears on the
Telerate Page 3750 as of 11:00 a.m., London time, on such LIBOR
Interest Determination Date ("LIBOR Telerate"). "Reuters Screen
LIBO Page" means the display designated as Page "LIBO" on the
Reuters Monitor Money Rate Service (or such other page as may
replace the LIBO page on the service for the purpose of displaying
London interbank offered rates of major banks). "Telerate Page
3750" means the display designated as page "3750" on the Telerate
Service (or such other page as may replace the 3750 page on that
service or such other service or services as may be nominated by
the British Bankers' Association for the purpose of displaying
London interbank offered rates of major banks for U.S. dollar
deposits). If neither LIBOR Reuters nor LIBOR Telerate is specified
on the face hereof, LIBOR will be determined as if LIBOR Telerate
had been specified. If fewer than two offered rates appear on the
Reuters Screen LIBO Page, or if no rate appears on the Telerate
Page 3750, as applicable, LIBOR in respect of that LIBOR Interest
Determination Date will be determined as described in (b) below.
FL-(R)-6
<PAGE>
(b) If fewer than two offered rates appear on the
Reuters Screen LIBO Page or no rate appears on Telerate Page
3750, as applicable, the Calculation Agent will request the
principal London offices of four major banks in the London
interbank market, as selected by the Calculation Agent, to
provide the Calculation Agent with their offered quotations for
deposits in U.S. dollars for the period of the applicable Index
Maturity to prime banks in the London interbank market at
approximately 11:00 a.m., London time, commencing on the second
London Business day immediately following such LIBOR Interest
Determination Date and in a principal amount equal to an amount
of not less than U.S. $l million that is representative of a
single transaction in such market at such time. If at least two
quotations are provided, LIBOR with respect to such LIBOR
Interest Determination Date will be the arithmetic mean of such
quotations. If fewer than two quotations are provided, LIBOR in
respect of that LIBOR Interest Determination Date will be the
arithmetic mean of rates quoted by three major banks in the City
of New York selected by the Calculation Agent at approximately
11:00 a.m., New York City time, commencing on the second London
Business Day immediately following such LIBOR Interest
Determination Date for loans in U.S. dollars to leading European
banks, for the period of the applicable Index Maturity and in a
principal amount equal to an amount of not less than U.S. $1
million that is representative for a single transaction in such
market at such time; PROVIDED, HOWEVER, that if fewer than three
banks selected as aforesaid by the Calculation Agent are quoting
rates as mentioned in this sentence, the rate of interest in
effect for the applicable period will be the LIBOR in effect on
such LIBOR Interest Determination Date.
In any of the above cases, LIBOR will be adjusted by the addition or
subtraction of a Spread, if any, specified on the face hereof and by
multiplication by the Spread Multiplier, if any, specified on the face
hereof.
FL-(R)-7
<PAGE>
TREASURY RATE. If the Interest Rate Basis of this Security is the
Treasury Rate, the interest rate hereon for any Interest Reset Date
shall equal (a) the rate for the auction on the relevant Treasury
Interest Determination Date of direct obligations of the United States
("Treasury Bills") having the Index Maturity specified on the face
hereof, (i) as such rate is published in H.15(519) under the heading
"U.S. Government Securities/Treasury Bills/Auction Average (Investment)"
or (ii) if such rate is not so published by 3:00 p.m., New York City
time, on the relevant Calculation Date, then the auction average rate
(expressed as a bond equivalent, on the basis of a year of 365 or 366
days, as applicable, and applied on a daily basis) for such auction as
otherwise announced by the United States Department of the Treasury or
(b) if the results of such auction of Treasury Bills having the Index
Maturity specified on the face hereof are not published or reported as
provided above by 3:00 p.m., New York City time, on such Calculation
Date, or if no such auction is held during such week, then the rate set
forth in H.15(519) for the relevant Treasury Interest Determination Date
for the Index Maturity specified on the face hereof under the heading
"U.S. Government Securities/Treasury Bills/Secondary Market" or (c) if
such rate is not so published by 3:00 p.m., New York City time, on the
relevant Calculation Date, then the yield to maturity (expressed as a
bond equivalent, on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) of the arithmetic mean of the
secondary market bid rates as of approximately 3:30 p.m., New York City
time, on such Treasury Interest Determination Date, of three primary
United States government securities dealers in the City of New York
selected by the Calculation Agent for the issue of Treasury Bills with a
remaining maturity closest to the Index Maturity specified on the face
hereof, in any of the above cases (a), (b) or (c) as adjusted (x) by the
addition or subtraction of the Spread, if any, specified on the face
hereof, and (y) by the multiplication by the Spread Multiplier, if any,
specified on the face hereof; PROVIDED, HOWEVER, that, if fewer than
three dealers selected as provided above by the Calculation Agent are
quoting as mentioned in this sentence, the Treasury Rate hereon for such
Interest Reset Date will be the interest rate hereon in effect on such
Treasury Interest Determination Date.
CD RATE. If the Interest Rate Basis of this Security is the CD
Rate, the interest rate hereon for any Interest Reset Date shall equal
(a) the rate for the relevant CD Rate Interest Determination Date for
negotiable U.S. dollar certificates of deposit having the Index Maturity
specified on the face hereof (i) as published in H.15(519) under the
heading "CDs (Secondary Market)" or (ii) if such rate is not published
before 3:00 p.m., New York City time, on
FL-(R)-8
<PAGE>
the relevant Calculation Date, then the rate on such CD Rate Interest
Determination Date for negotiable U.S. dollar certificates of deposit
having the Index Maturity specified on the face hereof as published in
Composite Quotations under the heading "Certificates of Deposit" or
(b) if by 3:00 p.m., New York City time, on such Calculation Date such rate
is not published in either H.15(519) or Composite Quotations, the
arithmetic mean as calculated by the Calculation Agent of the secondary
market offered rates, as of 10:00 a.m., New York City time, on such CD
Rate Interest Determination Date, of three leading nonbank dealers of
negotiable U.S. dollar certificates of deposit in the City of New York
selected by the Calculation Agent for negotiable U.S. dollar
certificates of deposit of major United States money market banks in the
market for negotiable U.S. dollar certificates of deposit with a
remaining maturity closest to the Index Maturity specified on the face
hereof in a denomination of U.S. $5,000,000, in either of the above
cases (a) or (b) as adjusted (x) by the addition or subtraction of the
Spread, if any, specified on the face hereof, and (y) by the
multiplication by the Spread Multiplier, if any, specified on the face
hereof; PROVIDED, HOWEVER, that, if fewer than three dealers selected as
provided above by the Calculation Agent are quoting as mentioned in this
sentence, the interest rate hereon for such Interest Reset Date will be
the interest rate hereon in effect on such CD Rate Interest
Determination Date.
CMT RATE. If the Interest Rate Basis of this Security is the CMT
Rate, the interest rate hereon for any CMT Rate Interest Determination
Date will equal the rate displayed on the Designated CMT Telerate Page
under the caption "...Treasury Constant Maturities...Federal Reserve Board
Release H.15...Mondays Approximately 3:45 p.m.," under the column for
the Designated CMT Maturity Index for (i) if the Designated CMT Telerate
Page is 7055, the rate on such CMT Rate Interest Determination Date and
(ii) if the Designated CMT Telerate Page is 7052, the weekly or monthly
average, as specified in the applicable Pricing Supplement, for the week
or the month, as applicable, ended immediately preceding the week in
which the related CMT Rate Interest Determination Date occurs. If such
rate is no longer displayed on the relevant page or is not displayed by
3:00 p.m., New York City time, on the related Calculation Date, then the
CMT Rate for such CMT Rate Interest Determination Date will be such
treasury constant maturity rate for the Designated CMT Maturity Index as
published in the relevant H.15(519). If such rate is no longer
published or is not published by 3:00 p.m., New York City time, on the
related Calculation Date, then the CMT Rate on such CMT Rate Interest
Determination Date will be such treasury constant maturity rate
FL-(R)-9
<PAGE>
for the Designated CMT Maturity Index (or other United States Treasury
rate for the Designated CMT Maturity Index) for the CMT Rate Interest
Determination Date with respect to such Interest Reset Date as may then
be published by either the Board of Governors of the Federal Reserve
System or the United States Department of the Treasury that the
Calculation Agent determines to be comparable to the rate formerly
displayed on the Designated CMT Telerate Page and published in the
relevant H.15(519). If such information is not provided by 3:00 p.m.,
New York City time, on the related Calculation Date, then the CMT Rate
on the CMT Rate Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity, based on the
arithmetic mean of the secondary market closing offer side prices as of
approximately 3:30 p.m., New York City time, on such CMT Rate Interest
Determination Date reported, according to their written records, by
three leading primary United States government securities dealers (each, a
"Reference Dealer") in the City of New York (which may include the Agent
or its affiliates) selected by the Calculation Agent (from five such
Reference Dealers selected by the Calculation Agent and eliminating the
highest quotation (or, in the event of equality, one of the highest) and
the lowest quotation (or, in the event of equality, one of the lowest)),
for the most recently issued direct noncallable fixed rate obligations
of the United States ("Treasury Notes") with an original maturity of
approximately the Designated CMT Maturity Index and a remaining term to
maturity of not less than such Designated CMT Maturity Index minus one
year. If the Calculation Agent is unable to obtain three such Treasury
Note quotations, the CMT Rate on such CMT Rate Interest Determination
Date will be calculated by the Calculation Agent and will be a yield to
maturity based on the arithmetic mean of the secondary market offer side
prices as of approximately 3:30 p.m., New York City time, on such CMT
Rate Interest Determination Date of three Reference Dealers in the City
of New York (from five such Reference Dealers selected by the
Calculation Agent and eliminating the highest quotation (or, in the
event of equality, one of the highest) and the lowest quotation (or, in
the event of equality, one of the lowest)), for Treasury Notes with an
original maturity of the number of years that is the next highest to the
Designated CMT Maturity Index and a remaining term to maturity closest
to the Designated CMT Maturity Index and in an amount of at least U.S.
$100 million. If three or four (and not five) of such Reference Dealers
are quoting as described above, then the CMT Rate will be based on the
arithmetic mean of the offer prices obtained and neither the highest nor
the lowest of such quotes will be eliminated; provided, however, that if
fewer than three Reference Dealers so selected by the
FL-(R)-10
<PAGE>
Calculation Agent are quoting as mentioned herein, the CMT Rate
determined as of such CMT Rate Interest Determination Date will be the
CMT Rate in effect on such CMT Rate Interest Determination Date. If two
Treasury Notes with an original maturity as described in the second
preceding sentence have remaining terms to maturity equally close to the
Designated CMT Maturity Index, the Calculation Agent will obtain from
five Reference Dealers quotations for the Treasury Note with the shorter
remaining term to maturity and will use such quotations to calculate the
CMT Rate as set forth above.
"Designated CMT Telerate Page" means the display on the Dow Jones
Telerate Service (or any successor service) on the page specified herein
(or any other page as may replace such page on that service (or any
successor service) for the purpose of displaying Treasury Constant
Maturities as reported in H.15(519)) for the purpose of displaying
Treasury Constant Maturities as reported in H.15(519). If no such page
is specified herein, the Designated CMT Telerate Page shall be 7052 for
the most recent week.
"Designated CMT Maturity Index" means the original period to
maturity of the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20
or 30 years) specified herein with respect to which the CMT Rate will be
calculated. If no such maturity is specified herein, the Designated CMT
Maturity Index shall be two years.
In any of the above cases, the CMT Rate will be adjusted by the
addition or subtraction of a Spread, if any, specified on the face
hereof and by multiplication by the Spread Multiplier, if any, specified
on the face hereof.
FEDERAL FUNDS RATE. If the Interest Rate Basis of this Security is
the Federal Funds Rate, the interest rate hereon for any Interest Reset
Date shall equal (a) the rate on the relevant Federal Funds Interest
Determination Date for Federal Funds (i) as published in H.15(519) under
the heading "Federal Funds (Effective)" or (ii) if such rate is not
published before 3:00 p.m., New York City time, on the relevant
Calculation Date, then the rate on such Federal Funds Interest
Determination Date as published in Composite Quotations under the
heading "Federal Funds/Effective Rate" or (b) if by 3:00 p.m., New York
City time, on such Calculation Date such rate is not published in either
H.15(519) or Composite Quotations, the arithmetic mean as calculated by
the Calculation Agent of the rates, as of 9:00 a.m., New York City time,
on such Federal Funds Interest Determination Date, for the last
FL-(R)-11
<PAGE>
transaction in overnight Federal Funds arranged by three leading brokers
of Federal Funds transactions in the City of New York selected by the
Calculation Agent, in any of the above cases (a) or (b) as adjusted (x)
by the addition or subtraction of the Spread, if any, specified on the
face hereof, and (y) by the multiplication by the Spread Multiplier, if
any, specified on the face hereof; PROVIDED, HOWEVER, that, if fewer
than three brokers selected as provided above by the Calculation Agent
are quoting as mentioned in this sentence, the interest rate hereon for
such Interest Reset Date will be the interest rate hereon in effect on
such Federal Funds Interest Determination Date.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, specified on the face hereof
or less than the Minimum Interest Rate, if any, specified on the face hereof.
In addition, the interest rate hereon will in no event be higher than the
maximum rate permitted by New York law, as the same may be modified by United
States law of general application.
The Company will at all times appoint and maintain a banking institution
that is not an Affiliate of the Company as Calculation Agent hereunder. The
Company has initially appointed U.S. Bank Trust National Association as such
Calculation Agent and will give prompt written notice to the Trustee of any
change in such appointment. The Company will cause the Calculation Agent to
calculate the interest rate on this Security for any Interest Reset Date in
accordance with the foregoing on or before the Calculation Date pertaining to
the related Interest Determination Date. Except as otherwise provided
herein, all percentages resulting from any calculations will be rounded, if
necessary, to the nearest one hundred-thousandth of a percentage point with
five one-millionths of a percentage point rounded upward (E.G., 9.876546% (or
.09876546) being rounded to 9.87655% (or .0987655)), and all U.S. dollar
amounts used in or resulting from such calculations will be rounded to the
nearest cent (with one-half cent being rounded upwards). The "Calculation
Date," if applicable, pertaining to any Interest Determination Date will be
the earlier of (i) the tenth calendar day after such Interest Determination
Date, or, if such day is not a Business Day, the next succeeding Business Day
or (ii) the Business Day immediately preceding the applicable Interest
Payment Date or the Stated Maturity, redemption date or repayment date, as
the case may be. The Calculation Agent's determination of any interest rate
will be final and binding in the absence of manifest error.
FL-(R)-12
<PAGE>
Upon the request of the Holder of this Security, the Calculation Agent
will provide to such Holder the interest rate hereon then in effect and, if
determined, the interest rate hereon which will become effective on the next
Interest Reset Date.
The Interest Determination Date pertaining to an Interest Reset Date if
the rate of interest hereon shall be determined in accordance with the
provisions under the headings above entitled "Commercial Paper Rate" (the
"Commercial Paper Interest Determination Date"), "Prime Rate" (the "Prime
Rate Interest Determination Date"), "CD Rate" (the "CD Rate Interest
Determination Date"), "CMT Rate" (the "CMT Rate Interest Determination Date")
and "Federal Funds Rate" (the "Federal Funds Rate Interest Determination
Date") will be the second Market Day preceding such Interest Reset Date. The
Interest Determination Date pertaining to an Interest Reset Date if the rate
of interest hereon shall be determined in accordance with the provisions
under the heading above entitled "LIBOR" (the "LIBOR Interest Determination
Date") will be the second London Business Day preceding such Interest Reset
Date. The Interest Determination Date pertaining to an Interest Reset Date
if the rate of interest hereon shall be determined in accordance with the
provisions under the heading above entitled "Treasury Rate" (the "Treasury
Interest Determination Date") will be the day of the week in which such
Interest Reset Date falls (which will be the day on which Treasury bills
would normally be auctioned). If, as the result of a legal holiday, an
auction is held on the preceding Friday, such Friday will be the Treasury
Interest Determination Date pertaining to the Interest Reset Date occurring
in the next succeeding week. If an auction date shall fall on any Interest
Reset Date for a Treasury Rate Security, then such Interest Reset Date shall
instead be the first Market Day immediately following such auction date.
Payments of interest hereon with respect to any Interest Payment Date
will equal the amount of interest accrued from and including the immediately
preceding Interest Payment Date in respect of which interest has been paid or
duly made available for payment (or from and including the Original Issue
Date, if no interest has been paid or duly made available for payment) to but
excluding the applicable Interest Payment Date or the Stated Maturity, as the
case may be.
Accrued interest hereon from (and including) the Original Issue Date or
from (and including) the last date to which interest has been paid is
calculated by multiplying the face amount of this Security by an accrued
interest factor. Such accrued interest factor is computed by adding the
interest factor calculated for each day from (and including) the Original
Issue Date, or from (and including) the last date to which interest has been
paid, but excluding the date for which accrued interest is being calculated.
The interest factor (expressed as a decimal) for each
FL-(R)-13
<PAGE>
such day is computed by dividing the interest rate (expressed as a decimal)
applicable to such day by 360 if the Interest Rate Basis for this Security is
Commercial Paper Rate, Prime Rate, LIBOR, CD Rate or Federal Funds Rate or,
if the Interest Rate Basis for this Security is the Treasury Rate or CMT
Rate, by the actual number of days in the year.
This Security may be subject to repayment at the option of the Holder
prior to the Stated Maturity specified on the face of this Security on the
Repayment Date(s), if any, specified on the face of this Security. If no
Repayment Dates are specified on the face of this Security, this Security may
not be so repaid at the option of the Holder hereof prior to the Stated
Maturity. On any Repayment Date, this Security shall be repayable in whole
or in part in increments of $1,000 or such other minimum denomination
specified on the face hereof (provided that any remaining principal amount
hereof shall be at least $1,000 or such other minimum denomination) at the
option of the Holder hereof at a repayment price equal to 100% of the unpaid
principal amount to be repaid (or, if this Security is an Original Issue
Discount Security, such lesser amount as is provided herein), together with
accrued but unpaid interest hereon to the date of repayment. For this
Security to be repaid in whole or in part at the option of the Holder hereof,
this Security must be received, together with the form entitled "Option to
Elect Repayment" (set forth below) duly completed, by the Trustee at its
Corporate Trust Office (or such other address of which the Company shall from
time to time notify the Holders), not more than 60 nor less than 30 calendar
days prior to the date of repayment. Exercise of such repayment option by
the Holder hereof shall be irrevocable.
If so designated on the face of this Security, this Security may be
redeemed prior to its Stated Maturity by the Company on any date on or after
the Redemption Commencement Date indicated on the face hereof. If a
Redemption Commencement Date is not designated on the face hereof, then this
Security may not be redeemed by the Company prior to its Stated Maturity.
If a Redemption Commencement Date is specified on the face of this
Security, this Security may be redeemed prior to its Stated Maturity at the
option of the Company in whole or in part in increments of $1,000 or such
other minimum denomination specified on the face hereof (provided that any
remaining principal amount of this Security shall be at least $1,000 or such
other minimum denomination specified on the face hereof) at the Redemption
Price equal to 100% of the unpaid principal amount hereof, plus accrued
interest to the Redemption Date (subject to the right of Holders of record on
the relevant Regular Record Date to receive interest due on an Interest
Payment Date that is on or prior to the Redemption Date), plus a
FL-(R)-14
<PAGE>
Make-Whole Premium, if any, on notice given not more than 60 nor less than 30
calendar days prior to the Redemption Date. Interest installments whose
Stated Maturity is on or prior to such Redemption Date will be payable to the
Holder of this Security, or one or more Predecessor Securities, of record at
the close of business on the relevant Record Dates referred to on the face
hereof, all as provided in the Indenture.
The Company shall mail to each Security Holder whose Security is to be
redeemed in whole or in part a notice setting forth the portion of such
Security to be redeemed and such notice shall be mailed to such Holder at his
address as it appears in the Security Register.
The amount of the "Make-Whole Premium" in respect of the principal
amount of this Security to be redeemed, as calculated by the Company, will be
the excess, if any, of (i) the sum of the present values, as of the
Redemption Date of this Security, of (A) the respective interest payments
(exclusive of the amount of accrued interest to the Redemption Date) on this
Security that, but for such redemption, would have been payable on their
respective Interest Payment Dates after such Redemption Date, and (B) the
payment of such principal amount that, but for such redemption, would have
been payable on the Stated Maturity over (ii) the amount of such principal to
be redeemed. Such present values will be determined in accordance with
generally accepted principles of financial analysis by discounting the
amounts of such payments of interest and principal from their respective
Stated Maturities to such Redemption Date at a discount rate equal to the
Treasury Yield.
The "Treasury Yield" in respect of this Security shall be determined as
of the date on which notice of redemption of this Security is sent to the
Holder hereof by reference to the most recent Board of Governors of the
Federal Reserve System "Statistical Release H.15 (519)" (or any successor
publication of the Federal Reserve System) which has become publicly
available not more than two Business Days prior to such date (or, if such
Statistical Release (or successor publication) is no longer published or no
longer contains the applicable data, to the most recently published issue of
THE WALL STREET JOURNAL (Eastern Edition) published not more than two
Business Days prior to such date that contains such data or, if THE WALL
STREET JOURNAL (EASTERN EDITION) is no longer published or no longer contains
such data, to any publicly available source of similar market data), and
shall be the most recent weekly average yield on actively traded U.S.
Treasury Securities adjusted to a constant maturity equal to the Remaining
Life of this Security and, if applicable, converted to a bond equivalent
yield basis as described below. The "Remaining Life of this Security" shall
equal the number of years from the Redemption Date to the
FL-(R)-15
<PAGE>
Stated Maturity of this Security; provided that if the Remaining Life of this
Security is not equal to the constant maturity of a U.S. Treasury security
for which a weekly average yield is specified in the applicable source, then
the Remaining Life of this Security shall be rounded to the nearest
one-twelfth of one year and the Treasury Yield shall be obtained by linear
interpolation computed to the fifth decimal place (one thousandth of a
percentage point) and then rounded to the fourth decimal place (one hundredth
of a percentage point)), after rounding to the nearest one-twelfth of one
year, from the weekly average yields of (a) the actively traded U.S. Treasury
security with a maturity closest to and less than the Remaining Life of this
Security and (b) the actively traded U.S. Treasury security with a maturity
closest to and greater than the Remaining Life of this Security, except that
if the Remaining Life of this Security is less than three months, the weekly
average yield on actively traded U.S. Treasury securities adjusted to a
constant maturity of three months shall be used. The Treasury Yield shall,
if expressed on a yield basis other than that equivalent to a bond equivalent
yield basis, be converted to a bond equivalent yield basis and shall be
computed to the fifth decimal place (one thousandth of a percentage point)
and then rounded to the fourth decimal place (one hundredth of a percentage
point).
If an Event of Default with respect to the Securities of this series
shall occur and be continuing, the principal of the Securities of this series
(or, in the case of any Securities of this series that are Original Issue
Discount Securities, an amount of principal thereof determined in accordance
with the provisions of this Security set out in the next paragraph (the
"Default Amount")) may be declared due and payable in the manner and with the
effect provided in the Indenture.
If this Security is an Original Issue Discount Security and if an Event
of Default with respect to the Securities of this series shall have occurred
and be continuing, the Default Amount of principal of this Security may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such Default Amount shall be equal to the adjusted issue price as
at the first day of the accrual period as determined under the United States
Internal Revenue Code of 1986, as amended, and the Treasury regulations
thereunder (the "Code"), in which the date of acceleration occurs increased
by the daily portion of the original issue discount for each day in such
accrual period ending on the date of acceleration, as determined under the
Code. Upon payment (i) of the amount of principal so declared due and
payable and (ii) of interest on any overdue principal and overdue interest
all of the Company's obligations in respect of the payment of the principal
of and interest, if any, on this Security shall terminate.
FL-(R)-16
<PAGE>
The Indenture contains provisions for defeasance at any time of (i) the
entire indebtedness of this Security or (ii) certain restrictive covenants
and Events of Default with respect to this Security, in each case upon
compliance with certain conditions set forth therein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of at least a majority in principal amount of the
Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. The
principal amount of an Original Issue Discount Security or a Security
denominated in a Specified Currency other than U.S. dollars that shall be
deemed to be Outstanding for purposes of the foregoing shall be determined as
provided in the Indenture. Any such consent or waiver by the Holder of this
Security shall be conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security or Securities issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee
or for any other remedy thereunder, unless such Holder shall have previously
given the Trustee written notice of a continuing Event of Default with
respect to the Securities of this series, the Holders of not less than 25% in
principal amount of the Securities of this series at the time Outstanding
shall have made written request to the Trustee to institute proceedings in
respect of such Event of Default as Trustee and offered the Trustee
reasonable indemnity, and the Trustee shall not have received from the
Holders of a majority in principal amount of Securities of this series at the
time Outstanding a direction inconsistent with such request, and shall have
failed to institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Security for the enforcement of any
payment of principal hereof or any premium or interest hereon on or after the
respective due dates expressed herein.
FL-(R)-17
<PAGE>
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of (and premium, if
any) and interest on this Security at the times, places and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
(including, in the case of any Global Security, certain additional
limitations) therein set forth, the transfer of this Security is registrable
in the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in the Place of Payment, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar, duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to
the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of (i) if denominated in U.S. dollars,
$1,000 and integral multiples thereof or (ii) if denominated in a Specified
Currency other than U.S. dollars, the equivalent amount of such Specified
Currency, at the noon buying rate in the City of New York for cable transfers
for such Specified Currency (the "Exchange Rate") on the sixth Business Day
in the City of New York and in the country issuing such currency (or, for
ECUs, Brussels) next preceding the Original Issue Date, to U.S. $1,000
(rounded to the nearest 1,000 units of such Specified Currency) and any
greater amount that is an integral multiple of 1,000 units of such Specified
Currency unless otherwise specified on the face hereof. As provided in the
Indenture and subject to certain limitations (including, in the case of any
Global Security, certain additional limitations) therein set forth,
Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to
the contrary.
FL-(R)-18
<PAGE>
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
All terms used in this Security that are otherwise not defined herein
but are defined in the Indenture shall have the meanings assigned to them in
the Indenture.
FL-(R)-19
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
the within Security, shall be construed as though they were written out in
full according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with the right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - __________Custodian___________
(Cust) (Minor)
under Uniform Gifts to Minors Act
_______________________________
(State)
Additional abbreviations may also be used
though not in the above list.
___________________________________
FL-(R)-20
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby
sell(s), assign(s) and transfer(s) unto ______________________________________
______________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
/ /
______________________________________________________________________________
______________________________________________________________________________
(Please Print or Typewrite Name and Address,
Including Postal Zip Code, of Assignee)
______________________________________________________________________________
the within Security and all rights thereunder, and hereby irrevocably
constitutes and appoints _____________________________________________________
to transfer said Security on the books of the Company, with full power of
substitution in the premises.
If less than the entire principal amount of the within Security is
to be sold, transferred or assigned, specify the portion thereof which the
Holder elects to have sold, transferred or assigned: __________; and specify
the denomination or denominations (which shall not be less than the
minimum-authorized denomination) of the Securities to be issued to the Holder
for the portion of the within Security not being sold, transferred or
assigned (in the absence of any such specification, one such Security will be
issued for the portion not being sold, transferred or assigned):__________.
FL-(R)-21
<PAGE>
Dated: _____________
SIGNATURE GUARANTEED
_____________________________ ________________________________
NOTICE: Signature must be NOTICE: The signature to this
guaranteed by a member firm assignment must correspond with
of the New York Stock the name as written upon the face
Exchange or a commercial of the within Security in every
bank or trust company. particular, without alteration or
enlargement or any change whatever.
FL-(R)-22
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the
Company to repay the within Security (or portion thereof specified below)
pursuant to its terms at a price equal to the principal amount thereof,
together with interest to the Repayment Date, to the undersigned at
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address of
the undersigned)
If less than the entire principal amount of the within Security is
to be repaid, specify the portion thereof which the Holder elects to have
repaid: _______; and specify the denomination or denominations (which shall
not be less than the minimum authorized denomination) of the Securities to be
issued to the Holder for the portion of the within Security not being repaid
(in the absence of any such specification, one such Security will be issued
for the portion not being repaid): _______.
Dated: _____________ _____________________________________________
NOTICE: The signature on this Option to Elect
Payment must correspond with the name as
written upon the face of the within Security
in every particular, without alteration or
enlargement or any change whatever.
SIGNATURE GUARANTEED
_____________________________ ________________________________
NOTICE: Signature must be NOTICE: The signature to this
guaranteed by a member firm assignment must correspond with
of the New York Stock the name as written upon the face
Exchange or a commercial of the within Security in every
bank or trust company. particular, without alteration or
enlargement or any change whatever.
FL-(R)-23
<PAGE>
[Form of Face of Security]
[Fixed Rate Medium-Term Note]
REGISTERED REGISTERED
No. FXR- PRINCIPAL AMOUNT:
CUSIP
CENTERPOINT PROPERTIES TRUST
MEDIUM-TERM NOTE, SERIES A
[INSERT IF THE SECURITY IS TO BE A GLOBAL SECURITY -- This Security
is a Global Security within the meaning of the Indenture referred to on the
reverse hereof and is registered in the name of a Depositary or a nominee of a
Depositary. This Security is exchangeable for Securities registered in the name
of a Person other than the Depositary or its nominee only in the limited
circumstances described in the Indenture, and this Security may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary.
Unless this certificate is presented by an authorized representative
of The Depository Trust Company (55 Water Street, New York, New York), a New
York corporation, to the Company or its agent for registration of transfer,
exchange or payment, and any certificate issued is registered in the name of
Cede & Co. or such other name as requested by an authorized representative of
The Depository Trust Company (and any payment is made to Cede & Co. or to such
other entity as is requested by an authorized representative of The Depository
Trust Company), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede &
Co., has an interest herein.]
FX-1
<PAGE>
SPECIFIED CURRENCY: EXCHANGE RATE
AGENT: [U.S. Bank Trust
National Association]
(Only applicable if
PAYING AGENT: Specified Currency
INTEREST PAYMENT DATES: is other than U.S.
REGULAR RECORD DATES: dollars)
EXCHANGE RATE: U.S.$1.00= _______ AUTHORIZED
DENOMINATIONS:
(Only applicable if
TRUSTEE'S NAME: Specified Currency
[U.S. Bank Trust National Association] is other than U.S. dollars)
ORIGINAL STATED MATURITY:
ISSUE DATE:
INTEREST RATE: % REDEMPTION
COMMENCEMENT DATE:
REDEMPTION PERIODS: REDEMPTION PRICES:
OID AMOUNT: MAKE-WHOLE PREMIUM
(Only applicable if DEFAULT AMOUNT:
issued at Original Issue
Discount)
ORIGINAL ISSUE DEFAULT RATE:
DISCOUNT SECURITY: (applicable only if
Security is an
Yes:___ No:___ Original Issue
Discount Security)
AMORTIZATION AMORTIZATION PAYMENT
FORMULA: DATE(S):
OPTIONAL REPAYMENT
DATE(S):
REPAYMENT DATE:
REPAYMENT PRICE:
OTHER PROVISIONS/ADDENDA:
FX-2
<PAGE>
OTHER PROVISIONS:
CenterPoint Properties Trust, a real estate investment trust duly organized
and existing under the laws of the State of Maryland (herein called the
"Company," which term includes any successor entity under the Indenture referred
to on the reverse hereof), for value received, hereby promises to pay to
________________________, or registered assigns, the principal sum of
_____________________________ on the Stated Maturity specified above [IF THE
SECURITY IS TO BEAR INTEREST PRIOR TO STATED MATURITY, INSERT --, and to pay
interest thereon from the Original Issue Date specified above or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, on the Interest Payment Dates specified above in each year and at Stated
Maturity, commencing on the first such Interest Payment Date next succeeding the
Original Issue Date (or, if the Original Issue Date is after a Regular Record
Date and before the Interest Payment Date immediately following such Regular
Record Date, on the second such Interest Payment Date next succeeding the
Original Issue Date), at the Interest Rate per annum specified above, until the
principal hereof is paid or made available for payment, and (to the extent that
the payment of such interest shall be legally enforceable) at the Interest Rate
per annum on any overdue principal and premium (including any overdue sinking
fund or redemption payment) and on any overdue installment of interest. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
March 1 and September 1 next preceding the March 15 and September 15 Interest
Payment Dates unless otherwise indicated on the face hereof; PROVIDED, HOWEVER,
that interest payable at Stated Maturity will be payable to the Person to whom
principal shall be payable. If this Security is designated above as an
Amortizing Security, then payments of principal and interest will be made in
installments over the life of this Security on each Interest Payment Date set
forth above, and at Stated Maturity or upon earlier redemption or repayment or
otherwise in accordance with any Amortization Formula or on any Amortization
Date set forth above. Any such interest not so punctually paid or duly provided
for shall forthwith cease to be payable to the Holder on such Regular Record
Date and may either be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice of which shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture].
FX-3
<PAGE>
[IF THE SECURITY IS NOT TO BEAR INTEREST PRIOR TO STATED MATURITY,
INSERT -- . The principal of this Security shall not bear interest except in
the case of a default in payment of principal upon acceleration, upon
redemption, repayment or at Stated Maturity and in such case the overdue
principal of this Security shall bear interest at the Default Rate per annum
specified above (to the extent that the payment of such interest shall be
legally enforceable), which shall accrue from the date of such default in
payment to the date payment of such principal has been made or duly provided
for. Interest on any overdue principal shall be payable on demand. Any such
interest on any overdue principal that is not so paid on demand shall bear
interest at the Default Rate per annum specified above (to the extent that
the payment of such interest shall be legally enforceable), which shall
accrue from the date of such demand for payment to the date payment of such
interest has been made or duly provided for, and such interest shall also be
payable on demand.]
Payment of principal of (and premium, if any) and any such interest on
this Security will be made in the Specified Currency specified above;
PROVIDED, HOWEVER, that, if this Security is denominated in other than U.S.
dollars, payments of principal (and premium, if any) and interest on this
Security will nevertheless be made in U.S. dollars: (a) at the option of the
Holder of this Security under the procedures described in the two next
succeeding paragraphs and (b) at the Company's option in the case of
imposition of exchange controls or other circumstances beyond the Company's
control as described below. The Company will at all times appoint and
maintain a Paying Agent (which may be the Trustee) authorized by the Company
to pay the principal of (and premium, if any) or interest on any Securities
of this series on behalf of the Company and having an office or agency (the
"Paying Agent Office") in the City of New York (the "Place of Payment"),
where Securities of this series may be presented or surrendered for payment
and where notices, designations or requests in respect of payments with
respect to Securities of this series may be served. The Company has
initially appointed U.S. Bank Trust National Association as such Paying
Agent. The Company will give prompt written notice to the Trustee of any
change in such appointment.
Except as provided in the next paragraph, payments of interest and
principal (and premium, if any) on this Security, if denominated in a
Specified Currency other than U.S. dollars, will be made in U.S. dollars if
the registered Holder of this Security on the relevant Regular Record Date,
or at the Stated Maturity, redemption or repayment of such Security, as the
case may be, has transmitted a written request for such payment in U.S.
dollars to the Paying Agent at the Paying Agent Office in the Place of
Payment on or before such Regular Record Date, or the date 15 days before
such Stated Maturity, redemption or repayment, as the case may be. Such
request may be in writing (mailed or hand delivered) or by cable, telex or
other form
FX-4
<PAGE>
of facsimile transmission. Any such request made for any Security by a
registered Holder will remain in effect for any further payments of interest
and principal (and premium, if any) on such Security payable to such Holder,
unless such request is revoked on or before the relevant Regular Record Date
or the date 15 days before the Stated Maturity, redemption or repayment of
such Security, as the case may be.
The U.S. dollar amount to be received by a Holder of a Note denominated
in other than U.S. dollars who elects to receive payment in U.S. dollars will
be determined by the exchange rate agent (the "Exchange Rate Agent"), at
approximately 11:00 a.m., New York City time, on the second Business Day
preceding the applicable Payment Date, by selecting the indicative quotations
for the Specified Currency appearing at such time on the bank composite or
multi-contributor pages of the Quoting Source (as defined below) for the
first three banks, in descending order of their appearance, on a list of
banks to be agreed to by the Company and the Exchange Rate Agent (which may
include an Agent or the Calculation and Exchange Rate Agent) prior to such
second Business Day, which are offering quotes on the Quoting Source. The
Exchange Rate Agent shall select from among the selected quotations the one
which will yield the largest number of U.S. dollars upon conversion from such
Specified Currency. The "Quoting Source" shall mean Reuters Monitor Foreign
Exchange Service, or if the Exchange Rate Agent determines that such service
is not available, Telerate Monitor Foreign Exchange Service. If the Exchange
Rate Agent determines that neither service is available, the Company and the
Exchange Rate Agent shall agree on a comparable display or other comparable
manner of obtaining quotations and such display or manner shall become the
Quoting Source.
In the case of a Specified Currency other than ECUs, if (i) fewer than
three bid quotations are available at the time a determination is to be made
by the Exchange Rate Agent pursuant to the preceding paragraph, or (ii) the
Exchange Rate Agent received no later than 12:00 noon, New York City time, on
such second Business Day preceding the applicable Payment Date notice from
the Company that there exist exchange controls or other circumstances beyond
the Company's control rendering such Specified Currency unavailable, then the
Exchange Rate Agent shall, prior to such Payment Date, notify the Company and
the Trustee of the noon buying rate in New York City for cable transfers, in
the Specified Currency indicated in such notice, as certified for customers'
purposes by the Federal Reserve Bank of New York (the "Market Exchange Rate")
as of such second Business Day. If the Market Exchange Rate for such date is
not then available, the Exchange Rate Agent shall immediately notify the
Company and the Trustee of the most recently available Market Exchange Rate
for such Specified Currency. In the case of ECUs, if: (i) fewer than three
bid quotations are available at the time a determination is to be made by the
Exchange Rate Agent pursuant to the preceding paragraph, or (ii) the
FX-5
<PAGE>
Exchange Rate Agent received no later than 12:00 noon, New York City time, on
such second Business Day preceding the applicable Payment Date notice from
the Company that (A) there exist exchange controls or other circumstances
beyond the Company's control, rendering ECUs unavailable or (B) ECUs are no
longer used in the European Monetary System, rendering ECUs unavailable, then
the Exchange Rate Agent shall, prior to such Payment Date, notify the Company
and the Trustee of the rate of conversion for ECUs into U.S. dollars,
determined as of such second Business Day on the following basis: The
component currencies of the ECUs for this purpose (the "Components") shall be
the currency amounts that were components of the ECUs as of the last date on
which ECUs were used in the European Monetary System. The equivalent of ECUs
in U.S. dollars shall be calculated by aggregating the U.S. dollar equivalent
of the Components. The U.S. dollar equivalent of each of the Components
shall be determined by the Exchange Rate Agent on the basis of the most
recently available Market Exchange Rate for the Components, or as otherwise
specified to the Exchange Rate Agent by the Company.
The Holder by his or her acceptance of this Security hereby agrees that
all currency exchange costs associated with any payment in U.S. dollars on
this Security will be borne by the Holder hereof by deductions from such
payment. If this Security is denominated in a Specified Currency other than
U.S. dollars, (i) the Company will at all times appoint and maintain a
banking institution that is not an Affiliate of the Company as Exchange Rate
Agent hereunder; and (ii) the Company has initially appointed U.S. Bank Trust
National Association as such Exchange Rate Agent and will give prompt written
notice to the Trustee of any change in such appointment.
Payment of the principal of (and premium, if any) and interest on any
Security of this series due at the Stated Maturity, redemption or repayment
of such Security will be made in immediately available funds upon surrender
of such Security to the Paying Agent at the Paying Agent Office in the Place
of Payment; PROVIDED that such Security is presented to the Paying Agent in
time for the Paying Agent to make such payment in accordance with its normal
procedures. Payments of interest on any Security of this series (other than
at the Stated Maturity, redemption or repayment of such Security) will be
made by check mailed to the address of the Person entitled thereto as it
appears in the Security Register or by wire transfer to such account as may
have been appropriately designated to the Paying Agent by such Person.
If the principal of (and premium, if any) or interest on any Security of
this series is payable in other than U.S. dollars and such Specified Currency
is not available, due to the imposition of exchange controls or other
circumstances beyond the control of the Company, the Company will be entitled
to satisfy its obligations to
FX-6
<PAGE>
the Holder of such Security by making such payments in U.S. dollars on the
basis of the most recently available Exchange Rate (as defined on the reverse
hereof) and the payment in U.S. dollars shall not be an event of Default
hereunder.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof or its Authenticating Agent by
manual signature, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
FX-7
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: CENTERPOINT PROPERTIES TRUST
[SEAL] By ________________________
Name:
Title:
Attest:
_______________________
Secretary
FX-8
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities issued under the within-mentioned Indenture.
U.S. BANK TRUST NATIONAL ASSOCIATION
As Trustee
By ________________________
Authorized Signatory
FX-9
<PAGE>
[Form of Reverse of Security]
[Fixed Rate Medium-Term Note]
CENTERPOINT PROPERTIES TRUST
MEDIUM-TERM NOTE, SERIES A
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or
more series under an Indenture, dated as of April 7, 1998, between the
Company and U.S. Bank Trust National Association, as Trustee (herein called
the "Trustee," which term includes any successor trustee under the
Indenture), as supplemented by the First Supplemental Indenture between the
Trustee and the Company dated as of April 7, 1998 and the Second Supplemental
Indenture dated as of October 23, 1998 between the Company and the Trustee
(collectively, the "Indenture") to which Indenture and all indentures
supplemental thereto relating to the Medium Term Notes, Series A, reference
is hereby made for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof. The Securities of this series may be issued
upon original issuance under the Indenture from time to time at an aggregate
initial public offering price not to exceed $250,000,000 or its equivalent in
foreign currencies, currency units or composite currencies. The aggregate
principal amount of Securities of this series which may be issued under the
Indenture will be limited to the aggregate of the principal amounts of the
Securities of this series so issued upon original issuance in accordance with
such limit.
Payments of interest hereon with respect to any Interest Payment Date
will include the amount of interest accrued from and including the
immediately preceding Interest Payment Date in respect of which interest has
been paid or duly made for payment (or from and including the Original Issue
Date, if no interest has been paid or duly made available for payment) to but
excluding the applicable Interest Payment Date or Stated Maturity Date, as
the case may be. Interest hereon shall be computed on the basis of a 360-day
year of twelve 30-day months.
FX(R)-1
<PAGE>
Any payment on this Security due on any day which is not a Market Day
(and, if the Specified Currency specified on the face hereof is other than
U.S. dollars, a Business Day in the country issuing such Specified Currency
(or, for ECUs, Brussels)) need not be made on such day, but may be made on
the next succeeding day that is a Market Day with respect to this Security
(and, if the Specified Currency of this Security is other than U.S. dollars,
a Business Day in the country issuing the Specified Currency (or, for ECUs,
Brussels)) with the same force and effect as if made on such due date, and no
interest shall accrue for the period from and after such date. "Business
Day," for any particular location, means each Monday, Tuesday, Wednesday,
Thursday, and Friday that is not a day on which banking institutions in such
location are authorized or obligated by law or executive order to close.
"Market Day" means any Business Day in the City of New York and the City of
Chicago.
This Security may be subject to repayment at the option of the Holder
prior to the Stated Maturity specified on the face of this Security on the
Optional Repayment Date(s), if any, specified on the face of this Security.
If no Repayment Dates are specified on the face of this Security, this
Security may not be so repaid at the option of the Holder hereof prior to the
Stated Maturity. On any Repayment Date, this Security shall be repayable in
whole or in part in increments of $1,000 or such other minimum denomination
specified on the face hereof (provided that any remaining principal amount
hereof shall be at least $1,000 or such other minimum denomination) at the
option of the Holder hereof at a repayment price equal to 100% of the unpaid
principal amount to be repaid (or, if this Security is an Original Issue
Discount Security, such lesser amount as is provided herein), together with
accrued but unpaid interest hereon to the date of repayment. For this
Security to be repaid in whole or in part at the option of the Holder hereof,
this Security must be received, together with the form entitled "Option to
Elect Repayment" (set forth below) duly completed, by the Trustee at its
Corporate Trust Office (or such other address of which the Company shall from
time to time notify the Holders), not more than 60 nor less than 30 calendar
days prior to the date of repayment. Exercise of such repayment option by
the Holder hereof shall be irrevocable.
If so designated on the face of this Security, this Security may be
redeemed prior to its Stated Maturity by the Company on any date on or after
the Redemption Commencement Date indicated on the face hereof. If a
Redemption Commencement Date is not designated on the face hereof, then this
Security may not be redeemed by the Company prior to its Stated Maturity.
FX(R)-2
<PAGE>
If a Redemption Commencement Date is specified on the face of this
Security, this Security may be redeemed prior to its Stated Maturity at the
option of the Company in whole or in part in increments of $1,000 or such
other minimum denomination specified on the face hereof (provided that any
remaining principal amount of this Security shall be at least $1,000 or such
other minimum denomination specified on the face hereof), at the Redemption
Price equal to 100% of the unpaid principal amount hereof, together with
accrued interest to the Redemption Date (subject to the right of Holders of
record on the relevant Regular Record Date to receive interest due on an
Interest Payment Date that is on or prior to the Redemption Date), plus a
Make-Whole Premium, if any, on notice given not more than 60 nor less than 30
calendar days prior to the Redemption Date. Interest installments whose
Stated Maturity is on or prior to such Redemption Date will be payable to the
Holder of this Security, or one or more Predecessor Securities, of record at
the close of business on the relevant Record Dates referred to on the face
hereof, all as provided in the Indenture.
The Company shall mail to each Security Holder whose Security is to be
redeemed in whole or in part a notice setting forth the portion of such
Security to be redeemed and such notice shall be mailed to such Holder at his
address as it appears in the Security Register.
The amount of the "Make-Whole Premium" in respect of the principal
amount of this Security to be redeemed, as calculated by the Company, will be
the excess, if any, of (i) the sum of the present values, as of the Redemption
Date of this Security, of (A) the respective interest payments (exclusive of the
amount of accrued interest to the Redemption Date) on this Security that, but
for such redemption, would have been payable on their respective Interest
Payment Dates after such Redemption Date, and (B) the payment of such
principal amount that, but for such redemption, would have been payable on
the Stated Maturity over (ii) the amount of such principal to be redeemed.
Such present values will be determined in accordance with generally accepted
principles of financial analysis by discounting the amounts of such payments
of interest and principal from their respective Stated Maturities to such
Redemption Date at a discount rate equal to the Treasury Yield.
The "Treasury Yield" in respect of this Security shall be determined as
of the date on which notice of redemption of this Security is sent to the
Holder hereof by reference to the most recent Board of Governors of the
Federal Reserve System "Statistical Release H.15 (519)" (or any successor
publication of the Federal Reserve System) which has become publicly
available not more than two Business Days prior
FX(R)-3
<PAGE>
to such date (or, if such Statistical Release (or successor publication) is
no longer published or no longer contains the applicable data, to the most
recently published issue of THE WALL STREET JOURNAL (EASTERN EDITION)
published not more than two Business Days prior to such date that contains
such data or, if THE WALL STREET JOURNAL (EASTERN EDITION) is no longer
published or no longer contains such data, to any publicly available source
of similar market data), and shall be the most recent weekly average yield on
actively traded U.S. Treasury Securities adjusted to a constant maturity
equal to the Remaining Life of this Security and, if applicable, converted to
a bond equivalent yield basis as described below. The "Remaining Life of
this Security" shall equal the number of years from the Redemption Date to
the Stated Maturity of this Security; provided that if the Remaining Life of
this Security is not equal to the constant maturity of a U.S. Treasury
security for which a weekly average yield is specified in the applicable
source, then the Remaining Life of this Security shall be rounded to the
nearest one-twelfth of one year and the Treasury Yield shall be obtained by
linear interpolation computed to the fifth decimal place (one thousandth of a
percentage point) and then rounded to the fourth decimal place (one hundredth
of a percentage point), after rounding to the nearest one-twelfth of one
year, from the weekly average yields of (a) the actively traded U.S. Treasury
security with a maturity closest to and less than the Remaining Life of this
Security and (b) the actively traded U.S. Treasury security with a maturity
closest to and greater than the Remaining Life of this Security, except that
if the Remaining Life of this Security is less than three months, the weekly
average yield on actively traded U.S. Treasury securities adjusted to a
constant maturity of three months shall be used. The Treasury Yield shall,
if expressed on a yield basis other than that equivalent to a bond equivalent
yield basis, be converted to a bond equivalent yield basis and shall be
computed to the fifth decimal place (one thousandth of a percentage point)
and then rounded to the fourth decimal place (one hundredth of a percentage
point).
If an Event of Default with respect to the Securities of this series
shall occur and be continuing, the principal of the Securities of this series
(or, in the case of any Securities of this series that are Original Issue
Discount Securities, an amount of principal thereof determined in accordance
with the provisions of this Security set out in the next paragraph (the
"Default Amount")) may be declared due and payable in the manner and with the
effect provided in the Indenture.
If this Security is an Original Issue Discount Security and if an Event
of Default with respect to the Securities of this series shall have occurred
and be continuing, the Default Amount of principal of this Security may be
declared due and
FX(R)-4
<PAGE>
payable in the manner and with the effect provided in the Indenture. Such
Default Amount shall be equal to the adjusted issue price as at the first day
of the accrual period as determined under the United States Internal Revenue
Code of 1986, as amended, and the Treasury regulations thereunder (the
"Code"), in which the date of acceleration occurs increased by the daily
portion of the original issue discount for each day in such accrual period
ending on the date of acceleration, as determined under the Code. Upon
payment (i) of the amount of principal so declared due and payable and (ii)
of interest on any overdue principal and overdue interest, all of the
Company's obligations in respect of the payment of the principal of and
interest, if any, on this Security shall terminate.
The Indenture contains provisions for defeasance at any time of (i) the
entire indebtedness of this Security or (ii) certain restrictive covenants
and Events of Default with respect to this Security, in each case upon
compliance with certain conditions set forth therein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of at least a majority in principal amount of the
Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. The
principal amount of an Original Issue Discount Security or a Security
denominated in a Specified Currency other than U.S. dollars that shall be
deemed to be Outstanding for purposes of the foregoing shall be determined as
provided in the Indenture. Any such consent or waiver by the Holder of this
Security shall be conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security or Securities issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee
or for any other remedy thereunder, unless such Holder shall have previously
given the Trustee written notice
FX(R)-5
<PAGE>
of a continuing Event of Default with respect to the Securities of this
series, the Holders of not less than 25% in principal amount of the
Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the
Trustee shall not have received from the Holders of a majority in principal
amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the
Holder of this Security for the enforcement of any payment of principal
hereof or any premium or interest hereon on or after the respective due dates
expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of (and premium, if
any) and interest on this Security at the times, places and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
(including, in the case of any Global Security, certain additional
limitations) therein set forth, the transfer of this Security is registrable
in the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in the Place of Payment, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar, duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Securities of this series and of like tenor, of authorized
denominations, and for the same aggregate principal amount, will be issued to
the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of (i) if denominated in U.S. dollars,
$1,000 and any integral multiples thereof or (ii) if denominated in a
Specified Currency other than U.S. dollars, the equivalent amount of such
Specified Currency, at the noon buying rate in The City of New York for cable
transfers for such Specified Currency (the "Exchange Rate") on the sixth
Business Day in The City of New York and in the country issuing such currency
(or, for ECUs, Brussels) next preceding the Original Issue Date, to U.S.
$1,000 (rounded to the nearest 1,000 units of such Specified Currency) and
any greater amount that is an integral multiple of 1,000 units of such
Specified Currency unless otherwise specified on the face hereof. As
provided in the Indenture and subject to certain limitations (including, in
the case of any Global
FX(R)-6
<PAGE>
Security, certain additional limitations) therein set forth, Securities of
this series are exchangeable for a like aggregate principal amount of
Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to
the contrary.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
All terms used in this Security that are otherwise not defined herein
but are defined in the Indenture shall have the meanings assigned to them in
the Indenture.
FX(R)-7
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
the within Security, shall be construed as though they were written out in
full according to applicable laws or regulations
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - _________ Custodian _________
(Cust) (Minor)
under Uniform Gifts to Minors Act
_________________________________
(State)
Additional abbreviations may also be used
though not in the above list.
__________________________________
FX(R)-8
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfers) unto ________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
/ /
______________________________________________________________________________
______________________________________________________________________________
(Please Print or Typewrite Name and Address,
Including Postal Zip Code, of Assignee)
______________________________________________________________________________
the within Security and all rights thereunder, and hereby irrevocably
constitutes and appoints _________________________________________________ to
transfer said Security on the books of the Company, with full power of
substitution in the premises.
If less than the entire principal amount of the within Security is to be
sold, transferred or assigned, specify the portion thereof which the Holder
elects to have sold, transferred or assigned: __________; and specify the
denomination or denominations (which shall not be less than the
minimum-authorized denomination) of the Securities to be issued to the Holder
for the portion of the within Security not being sold, transferred or
assigned (in the absence of any such specification, one such Security will be
issued for the portion not being sold, transferred or assigned):__________.
Dated: _______________
FX(R)-9
<PAGE>
SIGNATURE GUARANTEED
_____________________________ ________________________________
NOTICE: Signature must be NOTICE: The signature to this
guaranteed by a member firm assignment must correspond with
of the New York Stock the name as written upon the face
Exchange or a commercial of the within Security in every
bank or trust company. particular, without alteration or
enlargement or any change whatever.
FX(R)-10
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the
Company to repay the within Security (or portion thereof specified below)
pursuant to its terms at a price equal to the principal amount thereof,
together with interest to the Repayment Date, to the undersigned at
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF THE UNDERSIGNED)
If less than the entire principal amount of the within Security is
to be repaid, specify the portion thereof which the Holder elects to have
repaid: _______; and specify the denomination or denominations (which shall
not be less than the minimum authorized denomination) of the Securities to be
issued to the Holder for the portion of the within Security not being repaid
(in the absence of any such specification, one such Security will be issued
for the portion not being repaid): _______.
Dated: _____________ _____________________________________________
NOTICE: The signature on this Option to Elect
Payment must correspond with the name as
written upon the face of the within Security
in every particular, without alteration or
enlargement or any change whatever.
SIGNATURE GUARANTEED
_____________________________ ________________________________
NOTICE: Signature must be NOTICE: The signature to this
guaranteed by a member firm assignment must correspond with
of the New York Stock the name as written upon the face
Exchange or a commercial of the within Security in every
bank or trust company. particular, without alteration or
enlargement or any change whatever.
FX(R)-11
<PAGE>
CENTERPOINT PROPERTIES TRUST
TO
U.S. BANK TRUST NATIONAL ASSOCIATION, AS TRUSTEE
SECOND SUPPLEMENTAL INDENTURE
DATED AS OF OCTOBER 23, 1998
$250,000,000 MEDIUM-TERM NOTES, SERIES A
DUE NINE MONTHS OR MORE FROM THE DATE OF ISSUE
SUPPLEMENT TO INDENTURE
DATED AS OF APRIL 7, 1998
BETWEEN
CENTERPOINT PROPERTIES TRUST
AND
U.S. BANK TRUST NATIONAL ASSOCIATION, AS TRUSTEE
<PAGE>
SECOND SUPPLEMENTAL INDENTURE, dated as of October 23, 1998, between
CENTERPOINT PROPERTIES TRUST, a Maryland real estate investment trust (the
"Company"), having its principal offices at 1808 Swift Road, Oak Brook,
Illinois 60523, and U.S. BANK TRUST NATIONAL ASSOCIATION, a national banking
association organized under the laws of the United States of America, as
trustee (the "Trustee"), having its Corporate Trust Office at One Illinois
Center, 111 East Wacker Drive, Suite 3000, Chicago, Illinois 60601.
RECITALS
WHEREAS, the Company executed and delivered its Indenture (the "Original
Indenture"), dated as of April 7, 1998, as supplemented by the First
Supplemental Indenture between the Trustee and the Company dated as of April
7, 1998 (the "First Supplemental Indenture") to the Trustee to issue from
time to time for its lawful purposes debt securities evidencing its unsecured
indebtedness.
WHEREAS, the Original Indenture provides that by means of a supplemental
indenture, the Company may create one or more series of its debt securities.
WHEREAS, the Company intends by this Supplemental Indenture to create a
series of debt securities, in an aggregate principal amount not to exceed
$250,000,000, entitled "CenterPoint Properties Trust Medium-Term Notes,
Series A" (the "Notes").
WHEREAS, the Board of Trustees of the Company has approved the creation
of the Notes.
WHEREAS, the consent of Holders to the execution and delivery of this
Supplemental Indenture is not required, and all other actions required to be
taken under the Original Indenture with respect to this Supplemental
Indenture have been taken.
NOW, THEREFORE IT IS AGREED:
ARTICLE ONE
DEFINITIONS, CREATION, FORM AND TERMS AND CONDITIONS OF THE DEBT SECURITIES
SECTION 1.01 DEFINITIONS. Capitalized terms used in this Supplemental
Indenture and not otherwise defined shall have the meanings ascribed to them
in the Original Indenture. In addition, the following terms shall have the
following meanings to be equally applicable to both the singular and the
plural forms of the terms defined:
"Adjusted Total Assets" as of any date means the total of all assets
determined in accordance with GAAP plus accumulated depreciation.
"Annual Service Charge" as of any date means the aggregate amount of any
interest expensed for the four consecutive fiscal quarters most recently
ended, as determined in accordance with GAAP.
<PAGE>
"Consolidated Income Available for Debt Service" as of any date means
Consolidated Net Income (as defined below) of the Company and its
Subsidiaries plus amounts that have been deducted for: (a) interest on Debt
of the Company and its Subsidiaries; (b) provision for taxes of the Company
and its Subsidiaries based on income; (c) amortization of debt discount; (d)
depreciation and amortization; (e) the effect of any noncash charge resulting
from a change in accounting principles in determining Consolidated Net
Income; and (f) amortization of deferred charges, for the four consecutive
fiscal quarters most recently ended, all as determined in accordance with
GAAP, and without taking into account any provision for gains and losses on
properties.
"Consolidated Net Income" for any period means the amount of net income
(or loss) of the Company and its Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP.
"Indenture" means the Original Indenture as supplemented by the First
Supplemental Indenture and this Second Supplemental Indenture.
"Intercompany Debt" means Debt to which the only parties are the Company
and any Subsidiary and, in the case of Debt owed by the Company to any
Subsidiary, such Debt is subordinate in right of payment to the holders of
the Notes.
"Notes" means the Company's Medium-Term Notes, Series A, issued from
time to time under the Indenture.
"Undepreciated Real Estate Assets" as of any date means the cost
(original cost plus capital improvements) of real estate assets of the
Company and its Subsidiaries on such date, before depreciation and
amortization, determined on a consolidated basis in accordance with GAAP.
"Unencumbered Total Asset Value" as of any date means the sum of: (i)
the value of those Undepreciated Real Estate Assets not subject to an
encumbrance; and (ii) the value of all other assets of the Company and its
Subsidiaries on a consolidated basis not subject to an encumbrance determined
in accordance with GAAP (but excluding accounts receivable and intangibles).
SECTION 1.02 CREATION OF THE DEBT SECURITIES. In accordance with
Section 301 of the Original Indenture, the Company hereby creates the Notes
as separate series of its debt securities issued pursuant to the Indenture.
The Notes shall be issued from time to time in an aggregate principal amount
not to exceed $250,000,000.
SECTION 1.03 APPLICABILITY OF DEFEASANCE OR COVENANT DEFEASANCE. The
provisions of Article 14 of the Original Indenture shall apply to the Notes.
-2-
<PAGE>
ARTICLE TWO
ADDITIONAL COVENANTS
The Notes shall be governed by all the covenants contained in the
Original Indenture, as supplemented by this Second Supplemental Indenture,
and in particular, this Second Supplemental Indenture amends Section 1004 of
the Original Indenture to read as follows:
"SECTION 1004. Limitations on Incurrence of Debt.
(a) The Company will not, and will not permit any Subsidiary to,
incur any Debt, other than Intercompany Debt, if, immediately after
giving effect to the incurrence of such Debt and the application of
the proceeds thereof, the aggregate principal amount of all
outstanding Debt of the Company and its Subsidiaries on a consolidated
basis determined in accordance with GAAP is greater than 60% of the
sum of (i) the Company's Adjusted Total Assets as of the end of the
most recent fiscal quarter prior to the incurrence of such additional
Debt and (ii) the increase in Adjusted Total Assets since the end of
such quarter (including any increase resulting from the incurrence of
additional Debt).
(b) The Company will not, and will not permit any Subsidiary to,
incur any Debt if the ratio of Consolidated Income Available for Debt
Service to the Annual Service Charge on the date on which such
additional Debt is to be incurred would have been less than 1.5 to 1,
on a pro forma basis, after giving effect to the incurrence of such
Debt and to the application of the proceeds thereof.
(c) The Company will not, and will not permit any Subsidiary to,
incur any Debt secured by any mortgage, lien, charge, pledge,
encumbrance or security interest of any kind upon any of the
properties of the Company or any Subsidiary ("Secured Debt"), whether
owned at the date hereof or hereafter acquired, if, immediately after
giving effect to the incurrence of such Secured Debt and the
application of the proceeds thereof, the aggregate principal amount of
all outstanding Secured Debt of the Company and its Subsidiaries on a
consolidated basis is greater than 40% of the sum of (i) the Company's
Adjusted Total Assets as of the end of the most recent fiscal quarter
prior to the incurrence of such additional Debt and (ii) the increase
in Adjusted Total Assets since the end of such quarter (including any
increase resulting from the incurrence of additional Debt).
(d) The Company will at all times maintain an Unencumbered Total
Asset Value in an amount not less than 150% of the aggregate principal
amount of all outstanding unsecured Debt of the Company and its
Subsidiaries on a consolidated basis.
-3-
<PAGE>
For purposes of the foregoing provisions regarding the limitation
on the incurrence of Debt, Debt shall be deemed to be "incurred" by
the Company or a Subsidiary whenever the Company or such Subsidiary
shall create, assume, guarantee or otherwise become liable in respect
thereof."
ARTICLE THREE
TRUSTEE
SECTION 3.01 TRUSTEE. The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or the due execution thereof by the Company. The
recitals of fact contained herein shall be taken as the statements solely of
the Company, and the Trustee assumes no responsibility for the correctness
thereof.
ARTICLE FOUR
MISCELLANEOUS PROVISIONS
SECTION 4.01 RATIFICATION OF ORIGINAL INDENTURE. This Supplemental
Indenture is executed and shall be construed as an indenture supplemental to
the Original Indenture, and as supplemented and modified hereby, the Original
Indenture is in all respects ratified and confirmed, and the Original
Indenture and this Supplemental Indenture shall be read, taken and construed
as one and the same instrument.
SECTION 4.02 EFFECT OF HEADINGS. The Article and Section headings
herein are for convenience only and shall not affect the construction hereof
SECTION 4.03 SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Supplemental Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
SECTION 4.04 SEPARABILITY CLAUSE. In case any one or more of the
provisions contained in this Supplemental Indenture shall for any reason be
held to be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
SECTION 4.05 GOVERNING LAW. This Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of New
York. This Supplemental Indenture is subject to the provisions of the Trust
Indenture Act, that are required to be part of this Supplemental Indenture
and shall, to the extent applicable, be governed by such provisions.
SECTION 4.06 COUNTERPARTS. This Supplemental Indenture may be executed
in any number of counterparts, and each of such counterparts shall for all
purposes be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument.
-4-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the date first above written.
CENTERPOINT PROPERTIES TRUST
By:
------------------------------------
Name: John S. Gates, Jr.
Title: President
Attest:
By:
------------------------
Name: Paul S. Fisher
Title: Secretary
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Attest:
By:
-----------------------
Name:
---------------------
Title:
--------------------
-5-
<PAGE>
STATE OF ILLINOIS )
) SS:
COUNTY OF COOK )
On the ___ day of October, 1998, before me personally came JOHN S.
GATES, JR., and PAUL S. FISHER, to me known, who, being by me duly sworn, did
depose and say that they are the President and Secretary, respectively, of
CENTERPOINT PROPERTIES TRUST, one of the parties described in and which
executed the foregoing instrument, and that they signed their name,
respectively, thereto by authority of the Board of Trustees.
[Notarial Seal]
- -----------------------------
Notary Public
COMMISSION EXPIRES
-6-
<PAGE>
STATE OF ILLINOIS )
) SS:
COUNTY OF COOK )
On the __ day of October, 1998, before me personally came
_____________ and _______________, who, being by me duly sworn, did depose
and say that they are ____________ and ______________, respectively, of U.S.
BANK TRUST NATIONAL ASSOCIATION, one of the parties described in and which
executed the foregoing instrument, and that they signed their names thereto
by authority of the Board of Directors.
[Notarial Seal]
- -------------------------
Notary Public
-7-
<PAGE>
EXHIBIT 5
UNGARETTI & HARRIS
3500 THREE FIRST NATIONAL PLAZA
CHICAGO, ILLINOIS 60602
(312) 977-4400
October 23, 1998
CenterPoint Properties Trust
1808 Swift Road
Oak Brook, Illinois 60523
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 April 3, 1998 and
declared effective by the Commission on April 13, 1998 (the "Registration
Statement"), relating to the registration, under Rule 415 of the Securities
Act of 1933, as amended (the "Securities Act"), of up to $500,000,000 in
securities of the Company; and (ii) a supplement dated October 19, 1998 (the
"Supplement") to the Registration Statement, relating to the issuance and
sale from time to time of up to $250,000,000 aggregate principal amount of
the Company's Medium Term Senior Notes (the "Notes"), to be issued pursuant
to an Indenture dated as of April 7, 1998 (the "Original Indenture") between
the Company and U.S. Bank Trust National Association, as trustee (the
"Trustee"), as supplemented by the Second Supplemental Indenture dated as of
October 23, 1998 between the Company and the Trustee (the "Second
Supplemental Indenture"; the Original Indenture as supplemented by the Second
Supplemental Indenture being referred to herein as the "Indenture").
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;
d. the Indenture; and
e. 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
October 23, 1998
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:
1. The Indenture has been duly authorized, executed and delivered by
the Company and (assuming due execution and delivery by the Trustee)
constitutes a valid and legally binding agreement on the part of the Company
enforceable against the Company in accordance with its terms; except that the
enforceability thereof may be limited by or subject to (a) bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer, moratorium or
similar laws now or hereafter in effect relating to creditors' rights
generally and (b) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity); and the
Indenture has been qualified under the Trust Indenture Act.
2. The issuance and sale of the Notes have been duly authorized by the
Company; the Notes, when (a) executed and authenticated in accordance with
the terms of the Indenture, (b) the terms thereof have been fixed by the
Board of Trustees of the Company in conformity with the Indenture, and (c)
issued, sold and delivered to and paid for by the Agents in accordance with
the terms of the Agreement, will constitute valid and binding obligations of
the Company enforceable in accordance with their terms and entitled to the
benefits of the Indenture, except (1) to the extent that enforcement thereof
may be limited by (a) bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or transfer or similar laws now or hereafter in effect
relating to creditors' rights generally and (b) general principles of equity
(regardless of whether enforceability is considered in a proceeding at law or
in equity), (2) requirements that a claim with respect to any Notes
denominated other than in U.S. dollars (or a judgment denominated other than
in U.S. dollars in respect of such claims) be converted into U.S. dollars at
a rate of exchange prevailing on a date determined pursuant to applicable law
and (3) governmental authority to limit, delay or prohibit the making of
payments in foreign currency, currency units or composite currencies, outside
the United States. For purposes of the foregoing opinion, we assume that at
the time of the issuance, sale and delivery of each particular Note there
will not have occurred any change in law currently in effect affecting the
validity, legally binding character or enforceability of such Note and that
the issuance, sale and delivery of such Note, all of the terms of such Note
and the performance by the Company of its obligations thereunder will comply
with applicable law and with each requirement or restrictions imposed by any
court or governmental body having jurisdiction over
<PAGE>
CenterPoint Properties Trust
October 19, 1998
Page -3-
the Company and will not result in a default under or a breach of any
agreement or instrument then binding upon the Company.
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 New York
law, we have assumed that laws of the State of New York are the same as the
laws of the State of Illinois.
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>
EXHIBIT 8
UNGARETTI & HARRIS
3500 THREE FIRST NATIONAL PLAZA
CHICAGO, ILLINOIS 60602
(312) 977-4400
October 23, 1998
CenterPoint Properties Trust
1808 Swift Road
Oak Brook, Illinois 60523
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 April 3, 1998 (File
No. 333-49359), and declared effective on April 13, 1998 (the "Registration
Statement");
c. the Supplement dated October 23, 1998 for the offering from time to time of
up to $250,000,000 aggregate principal amount of Medium-Term Notes (the
"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
October 23, 1998
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 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. In 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
KAT:bb
<PAGE>
EXHIBIT 12
CENTERPOINT PROPERTIES TRUST
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
SIX MONTHS ENDED
JUNE 30, YEAR ENDED DECEMBER 31,
-------------------- -----------------------------------------------------------
1998 1997 1997 1996 1995 1994 1993
------- ------- ------- ------- -------- -------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
Available earnings:
Net income (loss) $17,781 $12,814 $27,630 $14,941 $ 8,212 $ 2,359 $(4,930)
Add interest expense (1) 6,909 5,267 10,871 10,992 12,985 12,157 4,111
------- ------- ------- ------- -------- -------- -------
Available earnings (loss) (2) $24,690 $18,081 $38,501 $25,933 $21,197 $14,516 $ (819)
------- ------- ------- ------- -------- -------- -------
------- ------- ------- ------- -------- -------- -------
Fixed Charges:
Interest expense $6,909 $5,267 $10,871 $10,992 $12,985 $12,157 $4,111
Capitalized interest 1,116 208 893 142 20 63 470
------- ------- ------- ------- -------- -------- -------
Total Fixed Charges $8,025 $5,475 $11,764 $11,134 $13,005 $12,220 $4,581
------- ------- ------- ------- -------- -------- -------
------- ------- ------- ------- -------- -------- -------
Ratio of earnings to Fixed Charges (3) 3.08 3.30 3.27 2.33 1.63 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 year ended December 31, 1993
was less than one to one. The approximate dollar amount necessary to cover
the deficiency in that period was $5,400.
<PAGE>
______________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER
THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility of
a Trustee Pursuant to Section 305(b)(2) /X/
_______________________________________________________
U.S. BANK TRUST NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
111 EAST WACKER DRIVE, SUITE 3000
CHICAGO, ILLINOIS 60601 36-4046888
(Address of principal executive offices) (Zip Code) I.R.S. Employer
Identification No.
Patricia M. Trlak
111 East Wacker Drive, Suite 3000
Chicago, Illinois 60601
Telephone (312) 228-9448
(Name, address and telephone number of agent for service)
CENTERPOINT PROPERTIES TRUST
(Exact name of obligor as specified in its charter)
MARYLAND 36-3910279
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1808 SWIFT ROAD
OAK BROOK, ILLINOIS 60523
(Address of Principal Executive Offices) (Zip Code)
MEDIUM-TERM NOTES
(Title of the Indenture Securities)
_____________________________________________________________________________
<PAGE>
FORM T-1
ITEM 1. GENERAL INFORMATION. Furnish the following information as to the
Trustee.
a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
Comptroller of the Currency
Washington, D.C.
b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes
ITEM 2. AFFILIATIONS WITH OBLIGOR. IF THE OBLIGOR IS AN AFFILIATE OF THE
TRUSTEE, DESCRIBE EACH SUCH AFFILIATION.
None
ITEMS 3-15 There is not nor has there been a default with respect to the
securities under this Indenture. The Trustee is a Trustee under
other Indentures under which securities issued by the obligor are
outstanding. There is not and there has not been a default with
respect to the securities outstanding under such other
Indentures.
ITEM 16. LIST OF EXHIBITS: LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS
STATEMENT OF ELIGIBILITY AND QUALIFICATION.
1. A copy of the Articles of Association of the Trustee now in
effect, incorporated herein by reference to Exhibit 1 of Form
T-1, Registration No. 333-18235.*
2. A copy of the certificate of authority of the Trustee to commence
business, incorporated herein by reference to Exhibit 2 of Form
T-1, Registration No. 333-18235.*
3. A copy of the certificate of authority of the Trustee to exercise
corporate trust powers, incorporated herein by reference to
Exhibit 3 of Form T-1, Registration No. 333-18235.*
4. A copy of the existing bylaws of the Trustee, as now in effect,
incorporated herein by reference to Exhibit 4 of Form T-1,
Registration No. 333-18235.*
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the
Trust Indenture Act of 1939, incorporated herein by reference to
Exhibit 6 of Form T-1, Registration No. 333-18235.*
7. A copy of the latest report of condition of the Trustee published
pursuant to law or the requirements of its supervising or
examining authority, filed herewith .
8. Not applicable.
9. Not applicable.
2
<PAGE>
* Exhibits thus designated are incorporated herein by reference to Exhibits
bearing identical numbers in Item 16 of the Form T-1 filed by the Trustee
with the Securities and Exchange Commission with the specific references
noted.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the Trustee, U.S. BANK TRUST NATIONAL ASSOCIATION, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this statement of eligibility and
qualification to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Chicago, State of Illinois on the 23rd day
of October, 1998.
U.S. BANK TRUST NATIONAL ASSOCIATION
By: /s/ Patricia M. Trlak
---------------------------------------
Patricia M. Trlak
Vice President and Assistant Secretary
<PAGE>
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for June 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC -- BALANCE SHEET
<TABLE>
C200
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------
RCON
ASSETS ----
<S> <C> <C> <C>
1. Cash and balances due from depository institutions (from Schedule RC-A):
a. Noninterest-bearing balances and currency and coin (1)........................ 0081 11,262 1.a
b. Interest-bearing balances (2)................................................. 0071 45,900 1.b
2. Securities:
a. Held-to-maturity securities (from Schedule RC-B, column A).................... 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D).................. 1773 3,711 2.b
3. Federal funds sold and securities purchased under agreements to resell........... 1350 0 3.
4. Loans and Lease financing receivables: RCON
a. Loans and Leases, net of unearned income ----
(from Schedule RC-C)....................... 2122 0 4.a
b. LESS: Allowance for Loan and Lease losses........ 3123 0 4.b
c. LESS: Allocated transfer risk reserve............ 3128 0 4.c
d. Loans and Leases, net of unearned income,
allowance, and reserve (item 4.a minus 4.b and 4.c)........................... 2125 0 4.d
5. Trading assets................................................................... 3545 0 5.
6. Premises and fixed assets (including capitalized Leases)......................... 2145 110 6.
7. Other real estate owned (from Schedule RC-M)..................................... 2150 0 7.
8. Investments in unconsolidated subsidiaries and associated companies (from
Schedule RC-M)................................................................... 2130 0 8.
9. Customers' liability to this bank on acceptances outstanding..................... 2155 0 9.
10. Intangible assets (from Schedule RC-M)........................................... 2143 46,321 10.
11. Other assets (from Schedule RC-F)................................................ 2160 2,843 11.
12. Total assets (sum of items 1 through 11)......................................... 2170 110,147 12.
- -------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
SCHEDULE RC --CONTINUED
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------
RCON
LIABILITIES ----
13. Deposits:
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E)..... 2200 0 13.a
RCON
----
(1) Noninterest-bearing (1)................... 6631 0 13.a.1
(2) Interest-bearing.......................... 6636 0 13.a.2
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs
(1) Noninterest-bearing.......................................................
(2) Interest-bearing..........................................................
14. Federal funds purchased and securities sold under agreements to repurchase....... 2800 0 14.
15. a. Demand notes issued to the U.S. Treasury...................................... 2840 0 15.a
b. Trading liabilities........................................................... 3548 0 15.b
16. Other borrowed money (includes mortgage indebtedness and obligations under
capitalized Leases):
a. With a remaining maturity of one year or less................................. 2332 0 16.a
b. With a remaining maturity of more than one year through three years........... A547 0 16.b
c. With a remaining maturity of more than three years............................ A548 0 16.c
17. Not applicable
18. Bank's Liability on acceptances executed and outstanding......................... 2920 0 18.
19. Subordinated notes and debentures (2)............................................ 3200 0 19.
20. Other Liabilities (from Schedule RC-G)........................................... 2930 2,793 20.
21. Total Liabilities (sum of items 13 through 20)................................... 2948 2,793 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus.................................... 3838 0 23.
24. Common stock..................................................................... 3230 1,000 24.
25. Surplus (exclude all surplus related to preferred stock)......................... 3839 106,712 25.
26. a. Undivided profits and capital reserves........................................ 3632 (358) 26.a
b. Net unrealized holding gains (losses) on available-for-sale securities........ 8434 0 26.b
27. Cumulative foreign currency translation adjustments..............................
28. Total equity capital (sum of items 23 through 27)................................ 3210 107,354 28.
29. Total Liabilities and equity capital (sum of items 21 and 28).................... 3300 110,147 29.
MEMORANDUM
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best
describes the most comprehensive level of auditing work performed for the bank
by independent external auditors as of any date during 1997...................... 6724 N/A M.1
1 -- Independent audit of the bank conducted in accordance with generally accepted
auditing standards by a certified public accounting firm which submits a report
on the bank
2 -- Independent audit of the bank's parent holding company conducted in accordance
with generally accepted auditing standards by a certified public accounting
firm which submits a report on the consolidated holding company (but not on the
bank separately)
3 -- Directors' examination of the bank conducted in accordance with generally accepted
auditing standards by a certified public accounting firm (may be required by state
chartering authority)
4 -- Directors' examination of the bank performed by other external auditors (may be
required by state chartering authority)
5 -- Review of the bank's financial statements by external auditors
6 -- Compilation of the bank's financial statements by external auditors
7 -- Other audit procedures (excluding tax preparation work)
8 -- No external audit work
- ------------
(1) Includes total demand deposits and noninterest-bearing time and
savings deposits.
(2) Includes Limited Life preferred stock and related surplus.
<PAGE>
SCHEDULE RC-A -- CASH AND BALANCES DUE FROM DEPOSITORY INSTITUTIONS
Exclude assets held for trading.
C205
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------
RCON
1. Cash items in process of collection, unposted debits, and currency and coin: ----
a. Cash items in process of collection and unposted debits....................... 0020 96 1.a
b. Currency and coin............................................................. 0080 0 1.b
2. Balances due from depository institutions in the U.S.:
a. U.S. branches and agencies of foreign banks................................... 0083 0 2.a
b. Other commercial banks in the U.S. and other depository institutions
in the U.S. .................................................................. 0085 57,066 2.b
3. Balances due from banks in foreign countries and foreign central banks:
a. Foreign branches of other U.S. banks.......................................... 0073 0 3.a
b. Other banks in foreign countries and foreign central banks.................... 0074 0 3.b
4. Balances due from Federal Reserve Banks.......................................... 0090 0 4.
5. Total (sum of items 1 through 4) (must equal Schedule RC, sum of
items 1.a and 1.b)............................................................... 0010 57,162 5.
MEMORANDUM
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------
RCON
1. Noninterest-bearing balances due from commercial banks in the U.S. ----
(included in items 2.a and 2.b above)............................................ 0050 11,166 M.1
</TABLE>
