<PAGE>
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(X) Quarterly report pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 for the quarterly period ended June 30, 1998
( ) Transition report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
----------------------
Commission file number 1-12630
CENTERPOINT PROPERTIES TRUST
(Exact name of registrant as specified in its charter)
Maryland 36-3910279
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1808 Swift Drive, Oak Brook, Illinois 60523-1501
(Address of principal executive offices)
(312) 346-5600
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months, and (2) has been subject to such filing requirements
for the past 90 days. Yes X No
---- ----
Number of Common Shares of Beneficial Interest outstanding as of August 14,
1998: 17,830,765 Number of Class B Common Shares of Beneficial Interest
outstanding as of August 14, 1998: 2,272,727
<PAGE>
PART 1. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
CENTERPOINT PROPERTIES TRUST AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT FOR SHARE INFORMATION)
(UNAUDITED)
ASSETS
<TABLE>
<CAPTION>
JUNE 30, DECEMBER 31,
1998 1997
-------------- ------------
<S> <C> <C>
Assets:
Investment in real estate:
Land and leasehold $ 126,280 $ 123,014
Buildings 435,096 414,314
Building improvements 70,542 64,372
Furniture, fixtures, and equipment 16,561 13,912
Construction in progress 20,453 26,034
--------- ---------
668,932 641,646
Less accumulated depreciation and amortization 51,704 44,352
--------- ---------
Net investment in real estate 617,228 597,294
Cash and cash equivalents 2,039 1,652
Restricted cash and cash equivalents 33,828 36,509
Tenant accounts receivable, net 17,492 12,416
Mortgage notes receivable 28,802 30,297
Investment in and advances to affiliate 17,885 11,143
Prepaid expenses and other assets 7,883 3,303
Deferred expenses, net 8,000 6,661
--------- ---------
$ 733,157 $ 699,275
--------- ---------
--------- ---------
LIABILITIES AND SHAREHOLDERS' EQUITY
Liabilities:
Mortgage notes payable $ 185,755 $ 85,755
Tax-exempt debt 75,540 75,540
Line of credit 12,500 97,700
Convertible subordinated debentures payable 9,613 11,740
Notes payable 33
Preferred dividends payable 1,060 901
Accounts payable 3,714 10,311
Accrued expenses 28,219 24,410
Rents received in advance and security deposits 4,535 4,759
--------- ---------
320,936 311,149
--------- ---------
Commitments and contingencies
Shareholders' equity:
Preferred shares of beneficial interest, $.001 par value, 10,000,000 shares
authorized; 3,000,000 issued and outstanding having a liquidation
preference of $25 per share ($75,000) 3 3
Common shares of beneficial interest, $.001 par value, 47,727,273 shares
authorized; 17,774,327 and 16,891,951 issued and outstanding, respectively 18 17
Class B common shares of beneficial interest, $.001 par value, 2,272,727
shares authorized; 2,272,727 issued and outstanding 2 2
Additional paid-in-capital 447,352 420,743
Retained earnings (deficit) (34,761) (32,142)
Unearned compensation - restricted stock (393) (497)
--------- ---------
Total shareholders' equity 412,221 388,126
--------- ---------
$ 733,157 $ 699,275
--------- ---------
--------- ---------
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
2
<PAGE>
CENTERPOINT PROPERTIES TRUST AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT FOR SHARE INFORMATION)
(UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED JUNE 30, SIX MONTHS ENDED JUNE 30,
--------------------------- -------------------------
1998 1997 1998 1997
--------- -------- -------- --------
<S> <C> <C> <C> <C>
Revenue:
Operating and investment revenue:
Minimum rents $ 18,050 $ 13,540 $ 35,797 $26,311
Straight-line rents 1,157 633 2,521 1,287
Expense reimbursements 6,115 4,480 11,573 9,375
Mortgage interest income 679 524 1,336 1,179
--------- -------- -------- --------
Total operating and investment revenue 26,001 19,177 51,227 38,152
--------- -------- -------- --------
Other Revenue:
Real estate fee income 1,707 813 3,674 1,615
Equity in net income of affiliate 276 140 401 92
--------- -------- -------- --------
Total other revenue 1,983 953 4,075 1,707
--------- -------- -------- --------
Total revenue 27,984 20,130 55,302 39,859
--------- -------- -------- --------
Expenses:
Real estate taxes 6,001 4,097 11,949 8,367
Property operating and leasing 3,210 2,424 6,752 5,447
General and administrative 1,002 739 1,992 1,442
Depreciation and amortization 5,186 3,379 9,882 6,589
Interest expense:
Interest incurred, net 3,056 2,246 5,984 4,872
Amortization of deferred financing costs 439 203 925 395
--------- -------- -------- --------
Total expenses 18,894 13,088 37,484 27,112
--------- -------- -------- --------
Operating income 9,090 7,042 17,818 12,747
Other income(expense), net (21) 101 (37) 67
--------- -------- -------- --------
Net income 9,069 7,143 17,781 12,814
Preferred dividends (1,590) (3,180)
--------- -------- -------- --------
Net income available to common shareholders $ 7,479 $ 7,143 $ 14,601 $ 12,814
--------- -------- -------- --------
--------- -------- -------- --------
Per share net income available to common shareholders:
Basic $ 0.37 $ 0.38 $ 0.74 $ 0.70
Diluted $ 0.37 $ 0.37 $ 0.74 $ 0.69
Distributions per common share $ 0.438 $ 0.420 $ 0.875 $ 0.840
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
3
<PAGE>
CENTERPOINT PROPERTIES TRUST AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
(UNAUDITED)
<TABLE>
<CAPTION>
SIX MONTHS ENDED JUNE 30,
------------------------
1998 1997
--------- --------
<S> <C> <C>
Cash flows from operating activities:
Net income $ 17,781 $ 12,814
Adjustments to reconcile net income to net cash provided
by operating activities:
Bad debts 100
Depreciation 9,277 6,152
Amortization of deferred financing costs 925 395
Other amortization 605 437
Straight-line rents (2,522) (1,287)
Incentive stock awards 104 178
Interest on converted debentures 36 11
Equity in net income of affiliate (401) (92)
Gain on sale of fixed assets (140)
Net changes in:
Tenant accounts receivable (2,872) (1,822)
Prepaid expenses and other assets (1,195) (1,104)
Rents received in advance and security deposits (75) (232)
Accounts payable and accrued expenses 4,655 (377)
--------- --------
Net cash provided by operating activities 26,418 14,933
--------- --------
Cash flows from investing activities:
Change in restricted cash and cash equivalents 2,681 111
Acquisition of real estate (31,738) (36,346)
Construction in progress (15,050) (5,308)
Improvements and additions to properties (11,983) (16,180)
Disposition of real estate 24,118 1,615
Change in deposits on acquisitions (3,416) 706
Issuance of mortgage notes receivable (20,453) (2,352)
Repayment of mortgage notes receivable 20,111 4,792
Investment in and advances to affiliate (6,342) (5,356)
Receivables from affiliates and employees 27 43
Additions to deferred expenses (3,009) (1,246)
--------- --------
Net cash used in investing activities (45,054) (59,521)
--------- --------
Cash flows from financing activities:
Proceeds from sale of common shares 24,785 71,070
Offering costs paid (289) (4,009)
Proceeds from issuance of unsecured notes payable 100,000
Proceeds from line of credit 48,400 62,650
Repayment of mortgage notes payable (2,559)
Repayment of line of credit (133,600) (66,200)
Repayment of notes payable (33) (373)
Distributions (20,240) (15,054)
Conversion of convertible subordinated debentures payable (1)
--------- --------
Net cash provided by financing activities 19,023 45,524
--------- --------
Net change in cash and cash equivalents 387 936
Cash and cash equivalents, beginning of the year 1,652 1,070
--------- --------
Cash and cash equivalents, end of period $ 2,039 $ 2,006
--------- --------
--------- --------
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
4
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CENTERPOINT PROPERTIES TRUST AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
BASIS OF PRESENTATION:
These unaudited Consolidated Financial Statements of CenterPoint Properties
Trust, a Maryland real estate investment trust, and Subsidiaries (the
"Company"), have been prepared pursuant to the Securities and Exchange
Commission ("SEC") rules and regulations and should be read in conjunction with
the December 31, 1997, Financial Statements and Notes thereto included in the
Company's Form 10-K. References herein to the "Company" shall mean CenterPoint
Properties Trust and Subsidiaries and, prior to October 15, 1997, CenterPoint
Properties Corporation and Subsidiaries which, pursuant to a reorganization of
CenterPoint Properties Corporation from a Maryland corporation to a Maryland
real estate investment trust, was merged with and into CenterPoint Properties
Trust, with CenterPoint Properties Trust as the surviving entity. The following
Notes to Consolidated Financial Statements highlight significant changes to the
Notes included in the December 31, 1997, Audited Financial Statements and
present interim disclosures as required by the SEC. The accompanying
Consolidated Financial Statements reflect, in the opinion of management, all
adjustments necessary for a fair presentation of the interim financial
statements. All such adjustments are of a normal and recurring nature. The
consolidated balance sheet as of December 31, 1997 has been derived from the
Company's audited Financial Statements.
The consolidated statements of operations and statements of cash flows for prior
periods have been reclassified to conform with current classifications with no
effect on results of operations or cash flows.
1. PREFERRED SHARES, COMMON SHARES OF BENEFICIAL INTEREST AND RELATED
TRANSACTIONS
On March 25, 1998, the Company completed a public offering of 370,371 common
shares of beneficial interest at $32.0625 per share in an underwritten offering
to a unit investment trust. Net proceeds from the offering after the
underwriting discounts were approximately $11.9 million. The proceeds were used
to repay a portion of amounts outstanding under the Company's line of credit
co-led by The First National Bank of Chicago and Lehman Brothers Holdings Inc.
On April 8, 1998 the Company completed a private placement to an institutional
investor of 370,000 common shares of beneficial interest at $33.375 per share.
The net proceeds of the offering of approximately $12.3 million were used to
fund working capital requirements.
5
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2. RECENT PRONOUNCEMENTS
In June, 1997, the FASB issued SFAS Statement No. 130, "Reporting Comprehensive
Income." This statement, effective for periods beginning after December 15,
1997, requires the Company to report components of comprehensive income in a
financial statement that is displayed with the same prominence as other
financial statements. Comprehensive income is defined by Concepts Statement No.
6, "Elements of Financial Statements" as the change in equity of a business
enterprise during a period from transactions and other events and circumstances
from nonowner sources. It includes all changes in equity during the period
except those resulting from investment by owners and distributions to owners. As
required by this statement, the Company adopted the new standard for reporting
comprehensive income. The Company's net income is equal to comprehensive income.
In June, 1997, the FASB issued SFAS Statement No. 131, "Disclosures about
Segments of an Enterprise and Related Information." This statement, effective
for financial statements for fiscal years beginning after December 15, 1997,
requires that a public business enterprise report financial and descriptive
information about its reportable operating segments. Generally, financial
information is required to be reported on the basis that it is used internally
for evaluating segment performance and deciding how to allocate resources to
segments. The Company has not yet determined the impact of this SFAS on its
financial statements.
In March, 1998, the FASB's Emerging Issues Task Force ("EITF") issued EITF Issue
No. 97-11, "Accounting for Internal Costs Related to Real Estate Acquisitions."
This statement, effective as of March 19, 1998, requires that internal costs of
identifying and acquiring operating properties should be expensed as incurred.
Prior to March 19, 1998, the Company capitalized internal preacquisition costs.
The Company estimates the adoption of this EITF will not have a significant
impact on the results of operations in the future.
In May, 1998, the FASB issued SFAS Statement No. 133, "Accounting for
Derivatives Instruments and Hedging Activities." This statement, effective for
financial statements for fiscal years beginning after June 15, 1999, provides a
comprehensive and consistent standard for the recognition and measurement of
derivatives and hedging activities. The Company has not yet determined the
impact of this SFAS on its financial statements.
3. ACQUISITION AND DISPOSITION OF REAL ESTATE
In February, 1998, the Company disposed of an industrial property located in Elk
Grove Village for a sales price of $10.4 million. The disposition of the
property qualified for treatment as a tax-free exchange under the Internal
Revenue Code. With a portion of the proceeds, the Company purchased two
industrial properties located in Elk Grove Village for an aggregate purchase
price of $6.9 million. The remaining amount was used to acquire qualified
replacement property in the second quarter.
6
<PAGE>
In March, 1998, two industrial properties located in Libertyville and Buffalo
Grove, Illinois were disposed of for an aggregate sales price of $17.8 million.
The disposition of the properties qualified for treatment as a tax-free exchange
under the Internal Revenue Code. A portion of the proceeds was used to acquire
qualified replacement property in the second quarter.
In April, 1998, the Company purchased two properties. The first property,
located in Chicago, Illinois, was purchased for approximately $5.8 million from
a partnership. It was funded with the Company's working capital and proceeds
from the tax-free exchange account. The second property, located in Des Plaines,
Illinois, was purchased from Juno Manufacturing, Inc. for approximately $5.6
million. The acquisition was funded from proceeds from the tax-free exchange
account.
In May, 1998, the Company purchased two properties. The first property, located
in Wood Dale, Illinois, was purchased from a partnership in which one of the
Company's Senior Officers and a Company Director were partners, for
approximately $3.5 million. The second property, located in Batavia, Illinois,
was purchased for approximately $6.1 million from a partnership. Both
acquisitions were funded with proceeds from the tax-free exchange account.
In June, 1998, the Company purchased two properties. The first property, located
in Chicago, Illinois, was purchased from a partnership for approximately $3.4
million. The second property, located in University Park, Illinois, was
purchased from a partnership for approximately $1.9 million. Both acquisitions
were funded with proceeds from the tax-free exchange account.
At June 30, 1998, there was $1.0 million remaining proceeds from the qualified
tax-free exchange.
4. MORTGAGE NOTES RECEIVABLE
In March 1998, the Company received proceeds from the repayment of two mortgages
outstanding totaling $20.1 million.
5. INVESTMENT IN AND ADVANCES TO AFFILIATE
The Company holds approximately 99% of the economic interest in CenterPoint
Realty Services Corporation ("CRS"), an unconsolidated taxable subsidiary, in
the form of non-voting common euity. CRS engages in businesses and services,
complimentary to the Compnay's industrial real estate investement business.
Income from these activities, received by REITs and their qualified REIT
subsidiaries, are limited under current REIT tax regulations.
As of June 30, 1998, the Company had advanced to CRS approximately $13.3
million under a demand loan with an interest rate of 8.125%. The proceeds of the
loan
7
<PAGE>
were applied towards development projects currently under construction and
the purchase of land held for future development. Principal and interest are
due upon demand.
The Company typically purchases development projects upon completion of
construction on a turnkey basis or develops the property under guaranteed
maximum price contracts, substantially eliminating any construction risk.
6. SUPPLEMENTAL INFORMATION TO STATEMENTS OF CASH FLOWS (IN THOUSANDS)
Supplemental disclosures of cash flow information for six months ended June 30,
1998 and 1997:
<TABLE>
<CAPTION>
1998 1997
------- ------
<S> <C> <C>
Interest paid $4,686 $5,120
Interest capitalized 1,116 208
Construction costs paid by the Company
through mortgage notes receivable 1,837
</TABLE>
In conjunction with the acquisition of real estate, for the six months ended
June 30, 1998 and 1997 the Company acquired the following asset and assumed the
following liability amounts:
<TABLE>
<CAPTION>
1998 1997
------- -------
<S> <C> <C>
Purchase of real estate $32,569 $37,498
Liabilities, net of other assets (831) (1,152)
------- -------
Acquisition of real estate $31,738 $36,346
</TABLE>
In conjunction with the disposition of real estate, the Company disposed of the
following asset and liability amounts for the six months ended June 30, 1998 and
1997:
<TABLE>
<CAPTION>
1998 1997
------- -------
<S> <C> <C>
Disposal of real estate $24,589 $1,670
Liabilities, net of other assets (471) (55)
------- ------
Disposition of real estate $24,118 $1,615
</TABLE>
Conversion of convertible subordinated debentures payable for the six months
ended June 30, 1998 and 1997:
<TABLE>
<CAPTION>
1998 1997
------ ------
<S> <C> <C>
Convertible subordinated debentures converted $2,127 $2,325
Common shares issued at $18.25 per share;
116,544 and 127,381, respectively 2,127 2,324
------ ------
Cash disbursed for fractional shares $ - $ 1
------ ------
</TABLE>
7. MORTGAGE NOTES PAYABLE AND OTHER DEBT
On April 5, 1998 the Company issued $100 million, 6.75 percent senior unsecured
notes due April 1, 2005. The net proceeds of $99 million were used to repay
substantially all amounts outstanding under the Company's line of credit co-led
by The First National Bank of Chicago and Lehman Brothers Holdings Inc.
8
<PAGE>
8. COMMITMENTS AND CONTINGENCIES
In the normal course of business, from time to time, the Company is involved in
legal actions relating to the ownership and operations of its properties. In
management's opinion, the liabilities, if any, that may ultimately result from
such legal actions are not expected to have a materially adverse effect on the
consolidated financial position, results of operations and liquidity of the
Company.
The Company has entered into other contracts for the acquisition of properties.
Each acquisition is subject to satisfactory completion of due diligence and, in
the case of development projects, completion and occupancy of the projects.
At June 30, 1998, seven of the properties owned by the Company are subject to
purchase options held by certain tenants. The purchase options are exercisable
at various intervals through 2006, each for an amount greater than the net book
value of the asset. Management is not currently aware of planned exercises of
options and believes that any potential exercises would not materially affect
the results or prospects of the Company.
9. SUBSEQUENT EVENTS
In July, 1998, the Company acquired sixteen properties for an aggregate total of
$40.3 million located as follows; one in Des Plaines, Illinois, six in Franklin
Park, Illinois, four in Bedford Park, Illinois, one in Melrose Park, Illinois,
three in Lake Forest and one in Elgin, Illinois. The purchase was funded with a
portion of the proceeds from the tax-free exchange account, the assumption of
$15.6 million in mortgage debt, and the remainder was funded with a draw on the
Company's line of credit.
$1.0 million worth of convertible subordinated debentures have been converted to
56,438 shares since June 30, 1998.
The Board of Trustees announced the adoption of a Preferred Share Purchase
Rights Agreement on July 31, 1998. Under the Agreement, a dividend distribution
of one Preferred Share Purchase Right on each outstanding share of the Trust's
common shares will be made to shareholders of record on August 11, 1998.
Initially, the preferred stock purchase rights will not be exercisable and will
trade with shares of CenterPoint's common stock. Under the shareholder rights
plan, the rights generally become exercisable if a person becomes an "acquiring
person" by acquiring 15% or more of the outstanding CenterPoint common shares or
if a person commences a tender offer that would result in that person owning 15%
or more of the outstanding CenterPoint common shares.
The shareholder rights plan is not being adopted in response to any takeover
attempt but is intended to provide the Board with sufficient time to consider
any and all alternatives under such circumstances. Its provisions are designed
to protect the Trust's shareholders
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in the event of an unsolicited attempt to acquire the Trust at a value that
is not in the best interest of the Trusts' shareholders.
10. EARNINGS PER COMMON SHARE
The following are the reconciliations of the numerators and denominators of the
basic and diluted EPS for the three months ended June 30, 1998 and 1997 and the
six months ended June 30, 1998.
<TABLE>
<CAPTION>
THREE MONTHS ENDED JUNE 30, SIX MONTHS ENDED JUNE 30,
--------------------------- ----------------------------
1998 1997 1998 1997
--------- ---------- ---------- ---------
(in thousands, except for share data)
<S> <C> <C> <C> <C>
Numerators:
Net income $ 9,069 $ 7,143 $ 17,781 $ 12,814
Dividends on preferred shares (1,590) (3,180)
----------- ----------- ----------- -----------
Net income available to common shareholders - for
basic and diluted EPS $ 7,479 $ 7,143 $ 14,601 $ 12,814
----------- ----------- ----------- -----------
----------- ----------- ----------- -----------
Denominators:
Weighted average common shares outstanding - for
basic EPS 19,985,422 19,006,207 19,602,554 18,189,923
Effect of dilutive securities - options 236,912 265,168 240,688 266,570
----------- ---------- ----------- -----------
Weighted average common shares outstanding - for
diluted EPS 20,222,334 19,271,375 19,843,242 18,456,493
----------- ---------- ----------- -----------
----------- ---------- ----------- -----------
</TABLE>
The assumed conversion of the convertible subordinated debentures into common
shares for purposes of computing diluted EPS by adding interest expense for the
debentures to the numerators, and adding assumed share conversions to the
denominators for the three months ended June 30, 1998 and 1997 and the six
months ended June 30, 1998 and 1997 would be anti-dilutive.
11. PRO FORMA FINANCIAL INFORMATION
Due to the effect of securities offerings in March, 1997, November, 1997,
March, 1998, and April 1998, and the 1997 and 1998 acquisitions and dispositions
of properties, the historical results are not indicative of the future results
of operations. The following unaudited pro forma information for the six months
ended June 30, 1998 and 1997 is presented as if the 1997 acquisitions and
dispositions, the 1998 acquisitions and dispositions, the 1997 and 1998
securities offerings, and the corresponding repayment of certain debt had all
occurred on January 1, 1997 (or the date the property first commenced operations
with a third party tenant, if later). The pro forma information is based upon
historical information and does not purport to present what actual results would
have been had the offerings and related transactions, in fact, occurred at
January 1, 1997, or to project results for any future period.
10
<PAGE>
<TABLE>
<CAPTION>
SIX MONTHS ENDED JUNE 30,
--------------------------
1998 1997
-------- --------
(in thousands, except for per share data)
<S> <C> <C>
Total revenues $ 55,435 $ 43,572
Total expenses 37,363 27,072
-------- --------
Net income 18,072 16,500
Preferred dividends (3,180) (3,180)
-------- --------
Net income available to common
shareholders $ 14,892 $ 13,320
-------- --------
-------- --------
Per share income available to common shareholders:
Basic $ 0.75 $ 0.68
Diluted $ 0.74 $ 0.67
</TABLE>
11
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF OPERATIONS AND
FINANCIAL CONDITION.
The following is a discussion of the historical operating results of the
Company. The discussion should be read in conjunction with the Form 10-K filed
for the fiscal year ended December 31, 1997 and the unaudited Financial
Statements presented with this Form 10-Q.
RESULTS OF OPERATIONS
COMPARISON OF THREE MONTHS ENDED JUNE 30, 1998 TO THREE MONTHS ENDED JUNE 30,
1997.
REVENUES
Total revenues increased by $7.9 million or 39.0% over the same period last
year.
In the second quarter of 1998, 92.9% of total revenues of the Company were
derived primarily from base rents, straight-line rents, expense reimbursements
and mortgage income (operating and investment revenue), pursuant to the terms of
tenant leases and mortgages for occupied space at the warehouse/industrial
properties.
Operating and investment revenues increased by $6.8 million in the second
quarter of 1998. A portion of the increase from the prior year is due to income
from eight properties acquired in the first half of 1998 and one build-to-suit
property coming on line totaling 0.2 million square feet, net of three
dispositions as of June 30, 1998. The remainder of the increase was attributable
to a full period of income from the 1997 acquisition of twenty-one properties,
totaling 7.1 million square feet and six build-to-suit properties totaling 1.5
million square feet coming on-line in 1997, net of three property dispositions.
Other revenues increased $1.0 million due to increased fees earned by the
Company in connection with build-to-suit, development and leasing activities and
increased property and build-to suit sales by the Company's unconsolidated
affiliate.
OPERATING AND NONOPERATING EXPENSES
Real estate tax expense and property operating and leasing expense increased by
$2.7 million from period to period. The majority of the increase, $1.9 million,
resulted from a full period of real estate taxes on 1997 acquisitions and a
partial period of real estate taxes on 1998 acquisitions, net of dispositions.
The balance of the increase was due to increased leasing expenses, insurance,
utilities, repairs and maintenance and property management costs which increased
proportionate to the level of acquisitions. However, property operating and
leasing costs as a percentage of total revenues decreased from 12.0% to 11.5%
when comparing the second quarter of 1997 to the second quarter of 1998 due to
"economies of scale" realized by the Company.
12
<PAGE>
General and administrative expenses increased by $0.3 million for the period due
primarily to the growth of the Company, but as a percentage of total revenues
decreased from 3.7% to 3.6% when comparing the second quarter of 1997 to the
second quarter of 1998.
Depreciation and amortization increased by $1.8 million due to a full period of
depreciation on 1997 acquisitions and depreciation on 1998 acquisitions.
Interest incurred increased by approximately $0.8 million over the same period
last year due to the Company holding higher average balances outstanding in the
second quarter of 1998 compared to 1997.
Other income (expenses) decreased due to the non-recurring disposal of fixed
assets for a gain which occurred in the second quarter of 1997.
NET INCOME AND OTHER MEASURES OF OPERATIONS
Net income increased $1.9 million or 27.0% due to the growth of the Company
through the net acquisition of warehouse/industrial real estate.
Funds from operations (FFO) increased 20.9% to $12.9 million from quarter to
quarter. The National Association of Real Estate Investment Trusts (NAREIT)
defines funds from operations as net income before extraordinary items plus
depreciation and amortization less the amortization of deferred financing costs.
When comparing the second quarter results of operations of properties owned at
April 1, 1997 with the results of operations of the same properties for the
second quarter 1998 (the "same property" portfolio), the Company recognized an
increase of approximately 3.5% in net operating income. This same property
increase was due to the timely lease up of vacant space, rental increases on
renewed leases and contractual increases in minimum rent under leases in place.
The Company assesses its operating results, in part, by comparing the Net
Revenue Margin between periods. Net Revenue Margin is calculated fot the "in
service" portfolioby dividing net revenue (total operating and investment
revenue less real estate taxes and property operating and leasing expense) by
adjusted operating and investment revenue (operating and investment revenue less
expense reimbursements, adjusted for leases containing expense stops). This
margin indicates the percentage of revenue actually retained by the Company or,
alternatively, the amount of property related expenses not recovered by tenant
reimbursements. The margin for the second quarter of 1998 was 90.1% compared
with 91.3% for the same period last year, but increased over the first quarter
margin by 6.3%. The second quarter margin was in line with the Company's
expectations.
13
<PAGE>
COMPARISON OF SIX MONTHS ENDED JUNE 30, 1998 TO SIX MONTHS ENDED JUNE 30, 1997.
REVENUES
Total revenues increased by $15.4 million or 38.7% over the same period last
year.
In the first half of 1998, 92.6% of total revenues of the Company were derived
primarily from base rents, straight-line rents, expense reimbursements and
mortgage income (operating and investment revenue), pursuant to the terms of
tenant leases and mortgages for occupied space at the warehouse/industrial
properties.
Operating and investment revenues increased by $13.1 million in the first half
of 1998. A portion of the increase from the prior year is due to income from
eight properties acquired in the first half of 1998 and one build-to-suit
property coming on line totaling 0.2 million square feet, net of three
dispositions as of June 30, 1998. The remainder of the increase was attributable
to a full period of income from the 1997 acquisition of twenty-one properties,
totaling 7.1 million square feet and six build-to-suit properties totaling 1.5
million square feet coming on-line in 1997, net of three property dispositions.
Other revenues increased $2.4 million due to increased fees earned by the
Company in connection with build-to-suit, development and leasing activities and
increased property and build-to suit sales by the Company's unconsolidated
affiliate.
OPERATING AND NONOPERATING EXPENSES
Real estate tax expense and property operating and leasing expense increased by
$4.9 million from period to period. The majority of the increase, $4.0 million,
resulted from a full period of real estate taxes on 1997 acquisitions and a
partial period of real estate taxes on 1998 acquisitions, net of dispositions.
The balance of the increase was due to increased leasing expenses, insurance,
utilities, repairs and maintenance and property management costs which increased
proportionate to the level of acquisitions. However, property operating and
leasing costs as a percentage of total revenues decreased from 13.7% to 12.2%
when comparing the first half of 1997 to the first half of 1998 due to
"economies of scale" realized by the Company.
General and administrative expenses increased by $0.5 million for the period due
primarily to the growth of the Company, but as a percentage of total revenues
remained constant at 3.6% comparing periods.
Depreciation and amortization increased by $3.3 million due to a full period of
depreciation on 1997 acquisitions and depreciation on 1998 acquisitions.
14
<PAGE>
Interest incurred increased by approximately $1.1 million over the same period
last year due to the Company holding higher average balances outstanding in the
second quarter of 1998 compared to 1997.
Other income (expenses) decreased due to the non-recurring disposal of fixed
assets for a gain which occurred in the second quarter of 1997.
NET INCOME AND OTHER MEASURES OF OPERATIONS
Net income increased $5.0 million or 38.8% due to the growth of the Company
through the net acquisition of Warehouse/Industrial real estate.
Funds from operations (FFO) increased 25.9% to $24.9 million from period to
period. The National Association of Real Estate Investment Trusts (NAREIT)
defines funds from operations as net income before extraordinary items plus
depreciation and amortization less the amortization of deferred financing costs.
When comparing the first half results of operations of properties owned at
January 1, 1997 with the results of operations of the same properties for the
first half of 1998 (the "same property" portfolio), the Company recognized an
increase of approximately 1.8% in net operating income. This same property
increase was due to the timely lease up of vacant space, rental increases on
renewed leases and contractual increases in minimum rent under leases in place.
The Company assesses its operating results, in part, by comparing the Net
Revenue Margin between periods. Net Revenue Margin is calculated for the "in
service" portfolio by dividing net revenue (total operating and investment
revenue less real estate taxes and property operating and leasing expense) by
adjusted operating and investment revenue (operating and investment revenue less
expense reimbursements, adjusted for leases containing expense stops). This
margin indicates the percentage of revenue actually retained by the Company or,
alternatively, the amount of property related expenses not recovered by tenant
reimbursements. The margin for the first half of 1998 was 87.1% compared with
89.8% for the same period last year. The decrease was immaterial and
attributable to transitional vacancy.
LIQUIDITY AND CAPITAL RESOURCES
OPERATING AND INVESTMENT CASH FLOW
Cash flow generated from Company operations has historically been utilized for
working capital purposes and distributions, while proceeds from financings and
capital raises have been used to fund acquisitions and other capital costs.
However, cash flow from operations during the first half of 1998 of $27.0
million net of $20.2 million of first half distributions provided $6.8 million
of retained capital. The Company expects retained capital to fund a portion of
future investment activities.
15
<PAGE>
Advances for construction in progress relating to development projects, advances
on mortgage notes receivable, and improvements and additions to properties of
approximately $50.0 million for the first half of 1998 were substantially funded
with borrowings under the Company's unsecured line of credit totaling $48.4
million. Acquisitions of $31.7 million were partially funded with proceeds from
the disposition of real estate of $24.1 million. The shortfall in funding was
made up with a portion of the Company's retained capital.
EQUITY AND SHARE ACTIVITY
On March 25, 1998, the Company completed a public offering of 370,371 common
shares of beneficial interest at $32.0625 per share in an underwritten offering
to a unit investment trust. Net proceeds of $11.9 million from the public
offering, proceeds from the repayment of mortgage notes receivable, and working
capital were used to repay amounts outstanding under the Company's line of
credit of $30.1 million.
On April 8, 1998 the Company completed the sale of 370,000 common shares of
beneficial interest at $33.375 per share to an institutional investor. The net
proceeds of the offering of approximately $12.3 million were used to fund
working capital requirements.
During the first half of 1998, the Company paid distributions on common shares
of $15.2 million or $0.875 per share and on class B common shares of $2.0
million or $0.8984 per share. Also, in January of 1998, the Company paid
dividends on preferred shares of $1.43 million or $0.477 per share, and in July
of 1998, paid dividends of $1.59 million or $0.53 per share. The following
factors, among others, will affect the future availability of funds for
distribution: (i) scheduled increases in base rents under existing leases and
(ii) changes in minimum base rents attributable to replacement of existing
leases with new or replacement leases.
DEBT CAPACITY
The Company has a $150 million unsecured credit facility co-led by The First
National Bank of Chicago and Lehman Brothers Holdings Inc. As of June 30, 1998,
the Company had outstanding borrowings of approximately $12.5 million under the
unsecured revolving line of credit (approximately 1.2% of the Company's fully
diluted total market capitalization), and the Company had remaining availability
of approximately $137.5 million under its unsecured line of credit.
At June 30, 1998, the Company's debt constituted approximately 26.6% of its
fully diluted total market capitalization. Also, the Company's debt service
coverage ratio remained high at 6.2 to 1. The Company's fully diluted equity
market capitalization was approximately $680.0 million, and its fully diluted
total market capitalization exceeded $1.0 billion. The Company's leverage ratios
benefited during the first half of 1998 from the conversion of approximately
$2.1 million of its 8.22% Convertible Subordinated Debentures, due 2004, to
116,544 common shares.
16
<PAGE>
In February, 1998, Duff & Phelps Credit Rating Co. joined Moody's Investors
Service's January, 1997 evaluation by assigning investment grade rating to the
Company's senior unsecured debt and preferred stock issuable under the Company's
shelf registration statement and convertible subordinated notes. Also in 1997,
Standard and Poors assigned an investment grade rating to the Company's senior
unsecured debt. These investment grade ratings further enhance the Company's
financial flexibility.
The Company has considered its short-term (one year or less) capital needs, in
conjunction with its estimated future cash flow from operations and other
expected sources. The Company believes that its ability to fund operating
expenses, building improvements, debt service requirements and the minimum
distribution required to maintain the Company's REIT qualification under the
Internal Revenue Code, will be met by recurring operating and investment revenue
and other real estate income.
Long-term (greater than one year) capital needs for property acquisitions,
scheduled debt maturities, major redevelopment projects, expansions, and
construction of build-to-suit properties will be supported, initially, by draws
on the Company's unsecured line of credit, followed by the issuance of long-term
unsecured indebtedness and the issuance of equity securities. Management expects
that a significant portion of the Company's investment funds will be supplied by
the proceeds of property dispositions.
INFLATION
Inflation has not had a significant impact on the Company because of the
relatively low inflation rates in the Company's markets of operation. Most of
the Company's leases require the tenants to pay their share of operating
expenses, including common area maintenance, real estate taxes and insurance,
thereby reducing the Company's exposure to increases in costs and operating
expenses resulting from inflation. In addition, many of the leases are for
remaining terms less than five years which may enable the Company to replace
existing leases with new leases at higher base rental rates if rents of existing
leases are below the then-existing market rate.
YEAR 2000 COMPLIANCE
In response to the Year 2000 issue, the Company initiated a project in early
1997 to identify, evaluate and implement a new computerized real estate
management system. The Company is addressing the issue through a combination of
modifications to existing programs and conversion to Year 2000 compliant
software. In addition, the Company is discussing with its tenants, vendors, and
other service providers the possibility of any interface difficulties relating
to the Year 2000 issue which may affect the Company. If the Company and those it
conducts business with do not make modifications or conversions in a timely
manner, the Year 2000 issue may have a material adverse effect on the Company's
business, financial condition, and results of operations. The total cost
associated with the required modifications is not expected to be material to the
Company's consolidated results of operations, liquidity and financial position,
and is being expensed as incurred.
17
<PAGE>
RECENT PRONOUNCEMENTS
In June, 1997, the FASB issued SFAS Statement No. 130, "Reporting Comprehensive
Income." This statement, effective for periods beginning after December 15,
1997, would require the Company to report components of comprehensive income in
a financial statement that is displayed with the same prominence as other
financial statements. Comprehensive income is defined by Concepts Statement No.
6, "Elements of Financial Statements" as the change in equity of a business
enterprise during a period from transactions and other events and circumstances
from nonowner sources. It includes all changes in equity during the period
except those resulting from investment by owners and distributions to owners. As
required by this statement, the Company adopted the new standard for reporting
comprehensive income. The Company's net income is equal to comprehensive income.
In June, 1997, the FASB issued SFAS Statement No. 131, "Disclosures about
Segments of an Enterprise and Related Information." This statement, effective
for financial statements for fiscal years beginning after December 15, 1997,
requires that a public business enterprise report financial and descriptive
information about its reportable operating segments. Generally, financial
information is required to be reported on the basis that it is used internally
for evaluating segment performance and deciding how to allocate resources to
segments. The Company has not yet determined the impact of this SFAS on its
financial statements.
In March, 1998, the FASB's Emerging Issues Task Force ("EITF") issued EITF Issue
No. 97-11, "Accounting for Internal Costs Related to Real Estate Acquisitions."
This statement, effective as of March 19, 1998, requires that internal costs of
identifying and acquiring operating properties should be expensed as incurred.
Prior to March 19, 1998, the Company capitalized internal preacquisition costs.
As required by this EITF, the Company adopted the new standard for reporting
internal acquisition costs. As experienced in the second quarter of 1998, the
EITF had no significant affect on the results of operations. The Company
estimates the adoption of this EITF will not have a significant impact on the
results of operations in the future.
In May, 1998, the FASB issued SFAS Statement No. 133, "Accounting for
Derivatives Instruments and Hedging Activities." This statement, effective for
financial statements for fiscal years beginning after June 15, 1999, provides a
comprehensive and consistent standard for the recognition and measurement of
derivatives and hedging activities. The Company has not yet determined the
impact of this SFAS on its financial statements.
FORWARD LOOKING STATEMENTS
This Quarterly Report on Form 10-Q contains forward looking statements within
the meaning of Section 27A of the Securities Act of 1933, as amended, and
Section 21E of the Securities Exchange Act of 1934, as amended. The Company's
actual results could differ materially from those set forth in the forward
looking statements as a result of
19
<PAGE>
various factors, including, but not limited to, uncertainties affecting real
estate businesses generally (such as entry into new leases, renewals of
leases and dependence on tenants' business operations), risks relating to
acquisition, construction and development activities, possible environmental
liabilities, risks relating to leverage, debt service and obligations with
respect to the payment of dividends (including availability of financing
terms acceptable to the Company and sensitivity of the Company's operations
to fluctuations in interest rates), the potential for the need to use
borrowings to make distributions necessary for the Company to qualify as a
REIT, dependence on the primary market in which the Company's properties are
located, the existence of complex regulations relating to the Company's
status as a REIT, the failure of the Company and entities the Company does
business with to make necessary modifications and conversions to Year 2000
compliant software in a timely manner and the potential adverse impact of the
market interest rates on the cost of borrowings by the Company and on the
market price for the Company's securities.
19
<PAGE>
PART II. OTHER INFORMATION
ITEM 2: CHANGES IN SECURITIES AND USE OF PROCEEDS
(c) On April 8, 1998, the Company sold 370,000 common shares of
beneficial interest to an institutional investor in a private
placement exempt from the registration requirements of the
Securities Act of 1933, as amended ("Act"), under Section 4(2) of
the Act on the basis of the following factors: (i) the offer and
sale was made only to the acquiring institutional investor, (ii)
the institutional investor was an "accredited investor" within
the meaning of Rule 501 of Regulation D of the Act and acquired
the shares for investment and not with a view to the resale or
distribution thereof and (iii) certificates evidencing the common
shares bear a legend restricting the transfer thereof. The common
shares were sold at $33-3/8 per share providing the Company with
$12,348,750 in proceeds which were used for general working
capital purposes.
ITEM 4: SUBMISSION OF MATTERS TO A VOTE OF SECURITY-HOLDERS.
The Registrant held its annual meeting of shareholders on May 15, 1998. The
voting results of the annual meeting were as follows:
1. 15,074,222 shares were voted in the election of trustees and the
following persons received the number of votes set opposite their
respective names:
<TABLE>
<CAPTION>
For Trustee Voted in Favor Vote Withheld
----------- -------------- -------------
<S> <C> <C>
Nicholas Babson 15,068,102 12,747
Martin Barber 15,073,518 7,331
Norman R. Bobins 15,073,901 6,948
Alan D. Feld 15,068,221 12,628
John S. Gates, Jr. 15,074,222 6,627
John J. Kinsella 15,068,220 12,629
Thomas E. Robinson 15,068,222 12,627
Robert L. Stovall 15,074,222 6,627
</TABLE>
2. In addition to the election of trustees, the following matters were
approved by the vote of the shareholders at the meeting:
- Ratification of the appointment of PricewaterhouseCoopers as the
Company's independent auditors for the year ending December 31,
1998:
<TABLE>
<CAPTION>
Voted in Favor Voted Against Abstained
-------------- ------------- ---------
<S> <C> <C>
15,047,467 3,782 29,600
</TABLE>
20
<PAGE>
- Approval of proposed Fourth Amendment to the Company's 1993 Stock
Option Plan:
<TABLE>
<CAPTION>
Voted in Favor Voted Against Abstained Non-Vote
-------------- ------------- --------- --------
<S> <C> <C> <C>
9,907,147 2,616,007 32,197 2,525,498
</TABLE>
ITEM 6: EXHIBIT AND REPORT ON FORM 8-K
(a) The following documents are filed as part of this report:
(1) Exhibit 3.1 - Declaration of Trust, as supplemented by
Articles Supplementary
(2) Exhibit 3.2 - By-Laws, as amended
(3) Exhibit 4.1 Form of certificate representing common shares
of beneficial interest
(4) Exhibit 10.54 - Stock Purchase Agreement between the Company
and Davis Selected Advisers, L.P.
(5) Exhibit 10.55 - CenterPoint Properties Amended and Restated
1993 Stock Option Plan, as amended by the First Amendment,
the Second Amendment, the Third Amendment, the Fourth
Amendment and the Fifth Amendment
(6) Exhibit 10.56 - First Amendment to CenterPoint Properties
1995 Director Stock Plan
(7) Exhibit 10.57 - Loan Documents relating to $50,000,000
Construction Loan Facility of CenterPoint Development
Corporation
(8) Exhibit 10.58 - Stock Option Agreement between the Company
and Martin Barber
(9) Exhibit 10.59 - Stock Option Agreement between the Company
and Nicholas C. Babson
(10) Exhibit 10.60 - Stock Option Agreement between the Company
and Alan D. Feld
21
<PAGE>
(11) Exhibit 10.61 - Stock Option Agreement between the Company
and John J. Kinsella
(12) Exhibit 10.62 - Stock Option Agreement between the Company
and Thomas E. Robinson
(13) Exhibit 10.63 - Stock Option Agreement between the Company
and Robert L. Stovall
(14) Exhibit 10.64 - Stock Option Agreement between the Company
and Norman Bobins
(b) The Company filed a Report on Form 8-K on April 3, 1998 to file the
form of Underwriting Agreement and First Supplemental Indenture in
connection with the issuance and sale by the Company of $100 million
aggregate principal amount of the Company's 6-3/4% Senior Notes due
2005. The Company also filed a Report on Form 8-K on April 28, 1998 to
report the adoption by the Board of Trustees of the Fifth Amendment to
the Company's 1993 Stock Option Plan, as amended.
22
<PAGE>
SIGNATURES
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
a Maryland Company
By: /s/ Paul S. Fisher
-----------------------------------
Paul S. Fisher
Executive Vice President and
Chief Financial Officer
August 14, 1998 (Principal Accounting Officer)
23
<PAGE>
Exhibit 3.1
DECLARATION OF TRUST
OF
CENTERPOINT PROPERTIES TRUST
THIS DECLARATION OF TRUST is made as of August 12, 1997 by the undersigned
Trustees.
ARTICLE I
THE TRUST
Section 1.1. NAME. The name of the trust (hereinafter the "Trust") is:
CenterPoint Properties Trust
Section 1.2. PRINCIPAL OFFICE; RESIDENT AGENT. The post office address
of the principal office of the Trust in the State of Maryland is c/o CSC-Lawyers
Incorporating Service Company, 11 East Chase St., Baltimore, Maryland 21202.
The name of the resident agent of the Trust in the State of Maryland is
CSC-Lawyers Incorporating Service Company, 11 East Chase Street, Baltimore,
Maryland 21202. The resident agent is a Maryland corporation. The Trust may
have such offices or places of business within or without the State of Maryland
as the Trustees may from time to time determine.
Section 1.3. NATURE OF TRUST. The Trust is a real estate investment
trust within the meaning of Title 8 of the Corporations and Associations Article
of the Annotated Code of Maryland, as amended ("Title 8"), or any successor
statute. The Trust is not intended to be, shall not be deemed to be, and shall
not be treated as, a general partnership, limited partnership, joint stock
association or, except as contemplated in Section 9.1, a corporation.
Section 1.4. POWERS. The Trust shall have all of the powers granted to
real estate investment trusts generally under Title 8 and shall have any other
and further powers as are not inconsistent with Title 8 or any other applicable
law.
Without limiting the generality of the foregoing, the Trust (i) may
continue the business of CenterPoint Properties Corporation, a Maryland
corporation (the "Predecessor Corporation"), with and into which the Trust will
be merged (the "Merger") with the Trust as the surviving entity and (ii) may
engage in business as a real estate investment trust under the Internal Revenue
Code of 1986, as amended, or any successor statute (the "Code"). For purposes of
this Declaration of Trust, the term "REIT" shall mean a real estate investment
trust as described in the Code.
Section 1.5. DURATION OF TRUST; SALE OF ASSETS. The Trust shall continue
perpetually unless terminated pursuant to any applicable provision of Title 8.
The Trust may be voluntarily dissolved or consolidated or its existence
terminated only by the affirmative vote of the holders of not less than
two-thirds of all of the shares of beneficial interest then outstanding and
entitled to vote on the matter. The Trust may sell or otherwise dispose of all
or substantially all of the real and personal property of the Trust (the "Trust
Property") only by the affirmative vote of the
<PAGE>
holders of not less than two-thirds of all shares of beneficial interest then
outstanding and entitled to vote on the matter.
ARTICLE II
TRUST SHARES
Section 2.1. AUTHORIZED SHARES. The total number of shares of beneficial
interest which the Trust has authority to issue is 60,000,000 shares (the
"Shares"), of which 47,727,273 are Common Shares, par value $.001 per share
("Common Shares"), 2,272,727 are Class B Common Shares, par value $.001 per
share ("Class B Common Shares"), and 10,000,000 are Series Preferred Shares, par
value $.001 per share ("Preferred Shares"). The aggregate par value of all
authorized shares of beneficial interest having par value is $60,000.
Section 2.2. VOTING RIGHTS. Subject to the provisions of Article IV
regarding Excess Shares (as such term is defined therein), each Common Share
shall entitle the holder thereof to one vote.
Section 2.3. ISSUANCE OF PREFERRED SHARES. The Preferred Shares may be
issued, from time to time, in one or more series as authorized by the Board of
Trustees. Prior to issuance of shares of each series of Preferred Shares, the
Board of Trustees by resolution shall designate that series to distinguish it
from all other series of Preferred Shares and classes of shares of beneficial
interest of the Trust, shall specify the number of shares to be included in that
series of Preferred Shares and, subject to the provisions of Article IV
regarding Excess Shares, shall set the terms, preferences, conversion or other
rights, voting powers, restrictions, limitations as to dividends or other
distributions, qualifications and terms or conditions of redemption.
Section 2.4. CLASSIFICATION OR RECLASSIFICATION OF UNISSUED SHARES.
Subject to the express terms of any series of Preferred Shares or any class of
Common Shares outstanding at the time and notwithstanding any other provision of
the Declaration of Trust, the Board of Trustees may increase or decrease the
number of, alter the designation of or classify or reclassify any unissued
Shares by setting or changing, in any one or more respects, from time to time
before issuing the Shares, and, subject to the provisions of Article IV
regarding Excess Shares, the terms, preferences, conversion and other rights,
voting powers, restrictions, limitations as to dividends or other distributions,
qualifications or terms or conditions of redemption of any series or class of
Shares.
Section 2.5. SALE OF SHARES. The Board of Trustees, in their discretion,
may from time to time issue or sell or contract to issue or sell Shares,
including Shares held in the treasury, to such party or parties and for money or
property actually received, as permitted under the laws of the State of
Maryland, at such time or times, and on such terms as the Trustees deem
appropriate. In connection with any issuance of Shares, the Trustees, in their
discretion, may provide for the issuance of fractional Shares.
Section 2.6. DECLARATION OF TRUST AND BY-LAWS. All persons who shall
acquire shares of beneficial interest in the Trust at any time and from time to
time shall acquire the same subject to the provisions of this Declaration of
Trust and the By-Laws of the Trust.
-2-
<PAGE>
Section 2.7. CLASS B COMMON SHARES. The Class B Common Shares shall have
the following rights:
(1) Dividend Rights.
(a) The holders of record of outstanding Class B
Common Shares shall be entitled to receive, when and as declared by the
Board of Trustees, out of funds legally available therefor, cash dividends
which are payable when, as and if authorized by the Board of Trustees, PARI
PASSU with any dividends paid on the Trust's Common Shares, in an amount
per share equal to the Class B Common Shares Common Dividend Amount, as in
effect from time to time. The initial per share Class B Common Shares
Common Dividend Amount per annum shall be equal to $1.7268. Each calendar
quarter after the effective date of the Merger (the "Effective Date") (or,
if the Effective Date is not on the first day of a calendar quarter, the
period beginning on the Effective Date and ending on the last day of the
calendar quarter in which the Merger shall have occurred) is referred to
hereinafter as a "Dividend Period." The amount of dividends payable with
respect to each full Dividend Period for the Class B Common Shares shall be
computed by dividing the Class B Common Shares Common Dividend Amount by
four. The amount of dividends on the Class B Common Shares payable with
respect to the initial Dividend Period shall be computed ratably on the
basis of the actual number of days in such Dividend Period and, if the
Effective Date is not on the first day of a calendar quarter, shall include
the amount of dividends payable with respect to the portion of the dividend
period of the Class B Common Stock of the Predecessor Corporation beginning
on the first day of calendar quarter of the Merger and ending on the day
immediately prior to the Effective Date computed ratably on the basis of
the actual number of days in such dividend period of the Predecessor
Corporation's Class B Common Stock. The amount of dividends on the Class B
Common Shares payable with respect to any other Dividend Period shorter or
longer than a full Dividend Period shall be computed ratably on the basis
of the actual number of days in such Dividend Period. In the event of any
change in the quarterly cash dividend per share applicable to the Common
Shares after the date of this Declaration of Trust, the quarterly cash
dividend per share of the Class B Common Shares shall be adjusted for the
same Dividend Period by an amount computed by multiplying the amount of the
change in the Common Shares dividend by the Conversion Ratio (as defined in
Section 2.7(3)(b)).
(b) In the event the Trust shall declare a
distribution payable in (i) securities of other persons, (ii) evidences of
indebtedness issued by the Trust or other persons, (iii) assets (excluding
cash dividends) or (iv) options or rights to purchase shares or evidences
of indebtedness in the Trust or other persons, then, in each such case for
the purpose of this Section 2.7(1), the holders of the Class B Common
Shares shall be entitled to a proportionate share of any such distribution
as though they were the holders of the number of Common Shares of the Trust
into which their shares of Class B Common Shares are or would be
convertible (assuming such shares of Class B Common Shares were then
convertible) as of the record date fixed for determination of the holders
of Common Shares of the Trust entitled to receive such distribution.
(2) Liquidation Rights.
-3-
<PAGE>
(a) Subject to any prior rights of any other class or
series of shares, the holders of Class B Common Shares shall be entitled to
receive the remaining assets of the Trust available for distribution pro
rata with the other holders of shares of the Trust as though they were the
holders of the number of Common Shares of the Trust into which their Class
B Common Shares are or would be convertible (assuming such Class B Common
Shares were then convertible) as of the record date applicable to such
distribution.
(b) Neither a consolidation or merger of the Trust
with or into any other trust or corporation, nor a merger of any other
trust or corporation into the Trust, nor the purchase or redemption of all
or part of any outstanding class or classes of shares of the Trust, nor a
sale or transfer of all or any part of its assets, shall be considered a
liquidation, dissolution or winding up of the Trust within the meaning of
this Section 2.7(2).
(3) Conversation Rights.
(a) MANDATORY CONVERSION INTO COMMON SHARES.
(i) Beginning on September 30, 1998, and at
the end of each calendar quarter thereafter, such number of shares of Class
B Common Shares will mandatorily convert into such number of Common Shares
as will result in the holders of the Class B Common Shares owning, in the
aggregate, 4.9% of the then outstanding Common Shares; and if on any such
date the total number of outstanding Class B Common Shares would not, upon
conversion, result in the holders thereof owning, in the aggregate, 4.9% of
the then outstanding Common Shares, then all such outstanding Class B
Common Shares will mandatorily convert into Common Shares. The Company
will notify the Investor in writing at least five (5) business days prior
to the end of each calendar quarter as to the number of Class B Common
Shares subject to mandatory conversion, which number will be revised, if
necessary, as a result of intervening events, no later than two (2)
business days after the end of the applicable quarter.
(ii) On September 21, 2005, each remaining
Class B Common Share which has not been converted to Common Shares shall
mandatorily convert to that number of fully paid and nonassessable Common
Shares equal to the Conversion Ratio, as adjusted, regardless of the 4.9%
limitation described in Section 2.7(3)(a)(i) above.
(iii) The Trust shall make such arrangements as
it deems appropriate for the issuance as soon as practicable of
certificates representing Common Shares issued upon the mandatory
conversion of the Class B Common Shares in exchange for and contingent upon
surrender by the holder of the certificate(s) representing such holder's
Class B Common Shares. From and after the date of mandatory conversion,
certificates representing Class B Common Shares shall be deemed to
represent an equal number of Common Shares.
-4-
<PAGE>
(b) RIGHT TO CONVERT.
Beginning on September 21, 1998, the holders of Class B
Common Shares shall have the right, at their option, to convert each such
share, at any time and from time to time, into one fully paid and
nonassessable Common Share (the "Conversion Ratio," which is subject to
adjustment as provided below); PROVIDED, HOWEVER, that no holder of Class B
Common Shares shall be entitled to convert such Class B Common Shares into
Common Shares pursuant to the foregoing provision, if, as a result of such
conversion, such person would become the Beneficial Owner of more than 4.9%
of the Trust's outstanding Common Shares. "Beneficial Owner" shall have
the meaning set forth in Rule 13d-3 under the Securities and Exchange Act
of 1934 (or any successor provision thereto). Notwithstanding the
foregoing, the foregoing conversion right may be exercised at any time
after the Effective Date and irrespective of the 4.9% limitation (and no
such limit shall apply) if any of the following circumstances occurs any
time after the Effective Date:
(i) For any two consecutive fiscal quarters,
the aggregate amount outstanding as of the end of the quarter under
(1) all mortgage indebtedness of the Trust and its consolidated
entities and (2) unsecured indebtedness of the Trust and its
consolidated entities for money borrowed that has not been made
generally subordinate to the other indebtedness for borrowed money of
the Trust or any consolidated entity exceeds fifty-five percent (55%)
of the Trust's total market capitalization, defined as the market
value of all of the Trust's outstanding shares, assuming the
conversion of all outstanding convertible securities, including the
Class B Common Shares plus the amount of the Company's total
non-convertible indebtedness (all as such items of indebtedness and
capitalization are reported in consolidated financial statements
contained in the Trust's Form 10-Ks and Form 10-Qs as filed with the
Securities and Exchange Commission); or
(ii) Fewer than three of John S. Gates, Jr.,
Robert M. Stovall, Michael M. Mullen and Paul S. Fisher are continuing
as Key Managers of the Trust. (For purposes of this subparagraph
(ii), a "Key Manager" shall mean a Person who is (a) employed by the
Trust and (b) actively participates as a senior executive officer in
the management of the Trust); or
(iii) If (A) the Trust shall be party to, or
shall have announced or entered into an agreement for, any transaction
(including, without limitation, a merger, consolidation, statutory
share exchange or sale of all or substantially all of its assets (each
of the foregoing a "Transaction")), in each case as a result of which
Common Shares shall have been or will be converted into the right to
receive shares, securities or other property (including cash or any
combination thereof) or which has resulted or will result in the
holders of Common Shares immediately prior to the Transaction owning
less than 50% of the Common Shares after the Transaction, or (b) a
"change of control" as defined in the next
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sentence occurs with respect to the Trust. A change of control shall
mean the acquisition (including by virtue of a merger, share exchange
or other business combination) by one shareholder or a group of
shareholders acting in concert with the power to elect a majority of
the Trust's Board of Trustees. The Trust shall notify the holders of
Class B Common Shares promptly if any of the events listed in this
Section 2.7(3)(b)(iii) shall occur.
(c) The Trust shall make such arrangements as it deems
appropriate for the issuance as soon as practicable of certificates
representing Common Shares issued upon the mandatory conversion of the
Class B Common Shares in exchange for and contingent upon surrender by the
holder of the certificate(s) representing such holder's Class B Common
Shares. From and after the date of mandatory conversion, certificates
representing Class B Common Shares shall be deemed to represent an equal
number of Common Shares.
(d) PROCEDURE FOR CONVERSION. In order to exercise its right to
convert Class B Common Shares into Common Shares pursuant to Section
2.7(3)(b) above, the holder thereof shall surrender the certificate(s)
therefor, duly endorsed if the Trust shall so require, or accompanied by
appropriate instruments of transfer satisfactory to the Trust, at the
office of any transfer agent for the Class B Common Shares, or if there is
no such transfer agent, at the principal offices of the Trust, or at such
other office as may be designated by the Trust, together with written
notice that such holder elects to convert such shares. Such notice shall
also state the name(s) and address(es) in which such holder wishes the
certificate(s) for the Common Shares issuable upon conversion to be issued.
As soon as practicable after an optional conversion, the Trust shall issue
and deliver at said office a certificate or certificates for the number of
whole Common Shares issuable upon conversion of the Class B Common Shares
duly surrendered for conversion, to the person(s) entitled to receive the
same. Class B Common Shares shall be deemed to have been converted
immediately prior to the close of business on the date on which the
certificates therefor and notice of election to convert the same are duly
received by the Trust in accordance with the foregoing provisions, and the
person(s) entitled to receive the Common Shares issuable upon such
conversion shall be deemed for all purposes as record holder(s) of such
Common Shares as of the close of business on such date.
(e) NO FRACTIONAL SHARES. No fractional shares shall be issued
upon conversion of the Class B Common Shares into Common Shares, and the
number of Common Shares to be issued shall be rounded to the nearest whole
share. Whether or not fractional shares would be issuable upon such
conversion shall be determined on the basis of the total number of Class B
Common Shares the holder is at the time converting into Common Shares and
the number of Common Shares issuable upon such aggregate conversion. As to
any final fraction of a share which the holder of one or more Class B
Common Shares would be entitled to receive upon exercise of his conversion
right, the Trust shall pay a cash adjustment in an amount equal to the same
fraction of the last sale price (or bid price if there were no sales) per
share of Common Shares
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on the New York Stock Exchange on the business day which next precedes the
conversion date or, if such Common Shares is not then listed or admitted to
trading on such Exchange, on any national securities exchange, of the
market price per share (as determined in a manner prescribed by the Board
of Trustees of the Trust) at the close of business on the business day
which next precedes the conversion date.
(f) ADJUSTMENTS.
(i) The Conversion Ratio shall be subject to adjustment as
follows:
(A) In the event the Trust shall at any time (i) pay a
dividend or make a distribution to holders of Common Shares in shares,
(ii) subdivide its outstanding Common Shares into a larger number of
shares, (iii) combine its outstanding Common Shares into a smaller
number of shares, or (iv) issue by reclassification of its Common
Shares any shares of the Trust, the Conversion Ratio in effect
immediately prior thereto shall be adjusted as provided below so that
the holder of any Class B Common Shares thereafter surrendered for
conversion shall be entitled to receive the number of shares of the
Trust which such holder would have owned or have been entitled to
receive after the happening of any of the events described above, had
such Class B Common Share been converted immediately prior to the
happening of such event. Any adjustment made pursuant to this
subparagraph (a) shall become effective retroactively immediately
after the record date in the case of a dividend and shall become
effective immediately after the effective date in the case of a
subdivision, combination or reclassification.
(B) In case the Trust shall issue rights or warrants to all
holders of its Common Shares entitling them to subscribe for or
purchase Common Shares at a price per share less than the current
market price (as hereinafter defined) per share of Common Shares at
the record date mentioned below, the number of Common Shares into
which each Class B Common Share shall thereafter be convertible shall
be determined by multiplying the number of Common Shares into which
such Class B Common Share was therefore convertible by a fraction, of
which the numerator shall be the number of Common Shares outstanding
on the date of issuance of such rights or warrants plus the number of
additional Common Shares offered for subscription or purchase, and of
which the denominator shall be the number of Common Shares outstanding
on the date of issuance of such rights or warrants plus the number of
shares which the aggregate offering price of the total number of
shares so offered would purchase at such
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current market price. Such adjustment shall be made whenever such
rights or warrants are issued, and shall become effective
retroactively immediately after the record date for the determination
of shareholders entitled to receive such rights or warrants.
(C) In case the Trust shall distribute to all holders of
its Common Shares evidences of its indebtedness or assets or rights or
warrants to subscribe for or purchase securities issued by the Trust
or property of the Trust (excluding those referred to in subparagraph
(B) above), then in each such case the number of Common Shares into
which each Class B Common Share shall thereafter be convertible shall
be determined by multiplying the number of Common Shares into which
such Class B Common Share was theretofore convertible by a fraction,
of which the numerator shall be the current market price per Common
Share, and of which the denominator shall be such current market price
per Common Share, less the then fair market value (as determined by
the Board of Trustees of the Trust, whose determination shall be
conclusive) of the portion of the assets or evidence of indebtedness
so distributed or of such rights or warrants applicable to one share
of the Common Shares. Such adjustment shall be made whenever any such
distribution is made, and shall become effective retroactively
immediately after the record date for the determination of
shareholders entitled to receive such distribution.
(D) If any such rights or warrants referred to above shall
expire without having been exercised, the Conversion Ratio as
theretofore adjusted because of the issue of such rights or warrants
shall forthwith be readjusted to the Conversion Ratio which would have
been in effect had an adjustment been made on the basis that only the
rights or warrants so issued or sold were those rights or warrants
actually exercised and that with respect to any such rights or
warrants to subscribe for or purchase securities issued by the Trust,
other than Common Shares or property of the Trust, the fair market
value thereof shall be the fair market value of the rights or warrants
actually exercised. If any such rights or warrants shall expire
without having been exercised, the Conversion Ratio as theretofore
adjusted because of the issue of such rights or warrants shall
forthwith be readjusted to the Conversion Ratio which would have been
in effect had an adjustment been made on the basis that the only
rights or warrants, so issued or sold, were those rights or warrants
actually exercised and that with respect to any such rights or
warrants to subscribe for or purchase securities issued by the Trust,
other than Common Shares, or property of the Trust the fair market
value thereof
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shall be the fair market value of the rights or warrants actually
exercised.
For the purpose of any computation under this paragraph (i)
the current market price per Common Share at any date shall be deemed
to be the average of the daily closing prices for the fifteen (15)
consecutive business days commencing thirty (30) business days before
the day in question. The closing price for each day shall be the last
reported sale price regular way or, in the case no such reported sale
takes place on such day, the average of the reported closing bid and
asked prices regular way, in either case on the New York Stock
Exchange, or, if the Common Shares are not listed or admitted to
trading on such Exchange, on any national securities exchange,
designated by the Board of Trustees, on which the Common Shares are
listed or admitted to trading, or if not listed or admitted to trading
on any national securities exchange, the average of the closing bid
and asked prices as furnished by any New York Stock Exchange firm
selected from time to time by the Trust for the purpose.
All calculations under this paragraph (i) shall be made to
the nearest cent or to the nearest 1/100th of a share as the case may
be.
(ii) No adjustment of the Conversion Ratio shall be made as a
result of or in connection with the issuance of Common Shares of the Trust
pursuant to options or stock purchase agreements now or hereafter granted
or entered into with directors, officers or employees of the Trust or its
subsidiaries in connection with their employment, whether entered into at
the beginning of the employment or at any time thereafter.
(iii) In case of:
(A) any capital reorganization of the Trust, or
(B) the consolidation or merger of the Trust with or
into another trust or corporation, or
(C) a statutory share exchange whereby the Trust's
Common Shares are converted into property other than cash, or
(D) the sale, transfer or other disposition of all or
substantially all of the property, assets or business of the
Trust as a result of which sale, transfer or other disposition
property other than cash shall be payable or
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distributable to the holders of the Common Shares, then, in each
such case, each Class B Common Share shall thereafter be
convertible into the number and class of shares or other
securities or property of the Trust, or of the trust or
corporation resulting from such consolidation or merger or with
or to which such statutory share exchange, sale, transfer or
other disposition shall have been made, to which the Common
Shares otherwise issuable upon conversion of such Class B Common
Share would have been entitled upon such reorganization,
consolidation, merger, statutory share exchange, or sale,
transfer or other disposition if outstanding at the time thereof;
and in any such case appropriate adjustment, as determined by the
Board of Trustees, shall be made in the application of the
provisions set forth in this Section 2.7(f) with respect to the
conversion rights thereafter of the holders of the Class B Common
Shares, to the end that such provisions shall thereafter be
applicable, as nearly as reasonably may be, in relation to any
shares or securities or other property thereafter issuable or
deliverable upon the conversion of Class B Common Shares. Proper
provision shall be made as a part of the terms of any such
reorganization, consolidation, merger, statutory share exchange
or sale, transfer or other disposition whereby the conversion
rights of the holders of Class B Common Shares shall be protected
and preserved in accordance with the provisions of this paragraph
(iii). The provisions of this paragraph (iii) shall similarly
apply to successive capital reorganizations, consolidations,
merger, statutory share exchanges, sales, transfers or other
dispositions of property as aforesaid.
(iv) Upon conversion of any Class B Common Shares, no payment
or adjustment shall be made on account of dividends accrued, whether or not
in arrears, on such shares or on account of dividends declared and payable
to holders of Common Shares of record on a date prior to the date of
conversion.
(v) Whenever the Conversion Ratio shall be adjusted as herein
provided, the Trust shall cause to be mailed by first class mail, postage
prepaid, as soon as practicable to each holder of record of Class B Common
Shares a notice stating that the Conversion Ratio has been adjusted and
setting forth the adjusted Conversion Ratio, together with an explanation
of the calculation of the same.
(vi) If the Trust shall be party to any Transaction in each
case as a result of which Common Shares shall be converted into the right
to receive stock, securities or other property (including cash or
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any combination thereof), the holder of each Class B Common Share shall
have the right after such Transaction to convert such share, pursuant to
the optional conversion provisions hereof, into the number and kind of
shares of stock or other securities and the amount and kind of property
receivable upon such Transaction by a holder of the number of Common Shares
issuable upon conversion of such Class B Common Share immediately prior to
such Transaction. The Trust shall not be party to any Transaction unless
the terms of such Transaction are consistent with the provisions of this
Section 2.7(3)(f)(vi), and it shall not consent to or agree to the
occurrence of any Transaction until the Trust has entered into an agreement
with the successor or purchasing entity, as the case may be, for the
benefit of the holders of the Class B Common Shares, thereby enabling the
holders of the Class B Common Shares to receive the benefits of this
Section 2.7(3)(f)(vi) and the other provisions of this Declaration of
Trust. Without limiting the generality of the foregoing, provision shall
be made for adjustments in the Conversion Ratio which shall be as nearly
equivalent as may be practicable to the adjustments provided for in Section
2.7(3)(f)(i). The provisions of this Section 2.7(3)(f)(vi) shall similarly
apply to successive Transactions.
(vii) In the event that the Trust shall propose to effect any
Transaction which would result in an adjustment under Section
2.7(3)(f)(vi), the Trust shall cause to be mailed to the holders of record
of Class B Common Shares at least twenty (20) days prior to the applicable
date hereinafter specified a notice stating the date on which such
Transaction is expected to become effective, and the date as of which it is
expected that holders of Common Shares of record shall be entitled to
exchange their shares of Common Shares for securities or other property
deliverable upon such Transaction. Failure to give such notice, or any
defect therein, shall not affect the legality or validity of such
Transaction.
(g) OTHER.
(i) The Trust shall at all times reserve and keep
available out of its authorized but unissued Common Shares the maximum
number of Common Shares issuable upon the conversion of all Class B
Common Shares then outstanding, and if at any time the number of
authorized but unissued Common Shares shall not be sufficient to
effect the conversion of all then outstanding Class B Common Shares,
in addition to such other remedies as shall be available to the holder
of such Class B Common Shares, the Trust shall take such corporate
action as may, in the opinion of its counsel, be necessary to increase
its authorized but unissued Common Shares to such number of shares as
shall be sufficient for such purposes.
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(ii) The Trust shall pay any taxes that may be payable
in respect of the issuance of Common Shares upon conversion of Class B
Common Shares, but the Trust shall not be required to pay any taxes
which may be payable in respect of any transfer of shares of Class B
Common Shares or any transfer involved in the issuance of Common
Shares in a name other than that in which the Class B Common Shares so
converted are registered, and the Trust shall not be required to
transfer any such Class B Common Shares or to issue or deliver any
such Common Shares unless and until the person(s) requesting such
transfer or issuance shall have paid to the Trust the amount of any
such taxes, or shall have established to the satisfaction of the Trust
that such taxes have been paid.
(iii) The Trust will not, by amendment of the
Declaration of Trust or through any reorganization, recapitalization,
transfer of assets, consolidation, merger, dissolution, issue or sale
of securities or any other voluntary action, avoid or seek to avoid
the observance or performance of any of the terms to be observed or
performed hereunder by the Trust, but will at all times in good faith
assist in carrying out of all the provisions of this Declaration of
Trust and in the taking of all such action as may be necessary or
appropriate to protect the conversion rights of the holders of the
Class B Common Shares against impairment.
(iv) Holders of Class B Common Shares shall be entitled
to receive copies of all communications by the Trust to its holders of
Common Shares, concurrently with the distribution to such
shareholders.
(v) All Common Shares issued upon conversion of shares
of Class B Common Shares shall upon issue be fully paid and
nonassessable by the Trust and free from original issue taxes.
(4) Voting Rights. The holders of record of Class B Common Shares shall
not be entitled to vote on any matter on which the holders of record of Common
Shares are entitled to vote, except that the holders of a majority of the Class
B Common Shares, voting as a separate class, shall be required to vote on and
approve: (a) any material adverse change in the rights, preferences or
privileges of the Class B Common Shares and (b) any creation of a new class of
stock having rights, preferences or privileges senior to or in parity with the
rights, preferences or privileges of the Class B Common Shares.
(5) Reacquired Shares. Class B Common Shares converted, redeemed or
otherwise purchased or acquired by the Trust shall be restored to the status of
authorized but unissued Common Shares without designation as to series.
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ARTICLE III
PROVISIONS FOR DEFINING, LIMITING
AND REGULATING CERTAIN POWERS OF THE
TRUST AND OF THE SHAREHOLDERS AND TRUSTEES
Section 3.1. NUMBER AND CERTIFICATION. The number of trustees of
the Trust initially shall be seven (the "Trustees"), which number may be
increased or decreased pursuant to the By-Laws of the Trust; provided, however,
that (a) if there are shares outstanding and so long as there are three or more
shareholders, the number of Trustees shall never be less than three and (b) if
there are shares outstanding and so long as there are less than three
shareholders, the number of Trustees may be less than three but not less than
the number of shareholders. The names of the trustees who shall serve effective
immediately and until their successors are duly elected and shall qualify are:
Martin Barber
John S. Gates, Jr.
Robert L. Stovall
Nicholas C. Babson
Alan D. Feld
John J. Kinsella
Thomas E. Robinson
At the first annual meeting of shareholders, and at each annual meeting
thereafter, the shareholders shall elect the trustees, who shall serve until
their successors are duly elected and shall qualify.
Section 3.2. POWERS OF TRUSTEES. Subject to the express limitations
set forth herein or in the By-Laws, (i) the business and affairs of the Trust
shall be managed under the direction of the Board of Trustees and (ii) the
Trustees shall have full, exclusive and absolute power, control and authority
over the Trust Property and over the business of the Trust as if they, in their
own right, were the sole owners thereof. The Trustees may take any actions as
in their sole judgment and discretion are necessary or desirable to conduct the
business of the Trust. This Declaration of Trust shall be construed with a
presumption in favor of the grant of power and authority to the Trustees.
Section 3.3. RESIGNATION, REMOVAL AND DEATH. A Trustee may resign at
any time by giving written notice thereof in recordable form to the other
Trustees at the principal office of the Trust. A Trustee may be removed, with
or without cause, by the shareholders upon the affirmative vote of a majority of
all of the votes entitled to be cast for the election of Trustees. A Trustee
may be removed, with or without cause, by the Board of Trustees upon the
affirmative vote of a majority of the then acting Trustees. A special meeting
of the shareholders or the Board of Trustees may be called, in accordance with
the By-Laws of the Trust, for the purpose of removing a Trustee. Upon the
resignation or removal of any Trustee, or his otherwise ceasing to be a Trustee,
he shall automatically cease to have any right, title or interest in and to the
Trust Property and shall execute and deliver such documents and render such
accounting as the remaining Trustees require and shall thereupon be discharged
as Trustee. Upon the incapacity or death of any Trustee, his status as a
Trustee shall immediately terminate, and his legal representatives shall perform
the acts set forth in the preceding sentence.
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Section 3.4. AUTHORIZATION BY BOARD OF ISSUANCE OF SHARES OF
BENEFICIAL INTEREST. The Board of Trustees of the Trust may authorize the
issuance from time to time of shares of beneficial interest of the Trust of any
class, whether now or hereafter authorized, or securities convertible into
shares of beneficial interest of any class, whether now or hereafter authorized,
for such consideration as the Board of Trustees in its sole discretion may deem
advisable, subject to such restrictions or limitations, if any, as may be set
forth in this Declaration of Trust or the By-Laws of the Trust or in the general
laws of the State of Maryland.
Section 3.5. PREEMPTIVE RIGHTS AND APPRAISAL RIGHTS. Except as may be
provided by the Board of Trustees in authorizing the issuance of Preferred
Shares pursuant to Article II, Section 3, no holder of Shares shall, as such
holder, (i) have any preemptive right to purchase or subscribe for any
additional shares of beneficial interest of the Trust or any other security of
the Trust which it may issue or sell or (ii) except as expressly required under
Title 8, have any right to require the Trust to pay him the fair value of his
Shares in an appraisal or similar proceeding.
Section 3.6. INDEMNIFICATION. The Trust shall have the power, to the
maximum extent permitted by Maryland law in effect from time to time, to
obligate itself to indemnify, and to pay or reimburse expenses under the
procedure provided by such Maryland law in advance of final disposition of a
proceeding to, (i) any individual who is a present or former Trustee or officer
of the Trust or (ii) any individual who, while a Trustee of the Trust and at the
request of the Trust, serves or has served another trust, partnership, joint
venture, corporation, employee benefit plan or any other enterprise as a
trustee, officer, partner or trustee of such trust, partnership, joint venture,
corporation, employee benefit plan or other enterprise. The Trust shall have
the power, with the approval of its Board of Trustees, to provide such
indemnification and advancement of expenses to a person who served a predecessor
of the Trust, including, without limitation, the Predecessor Corporation, in any
of the capacities, or similar to the capacities, described in (i) or (ii) above
and to any employee or agent of the Trust or a predecessor of the Trust,
including, without limitation, the Predecessor Corporation.
Section 3.7. ADVISOR AGREEMENTS. Subject to such approval of
shareholders and other conditions, if any, as may be required by any applicable
statute, rule or regulation, the Board of Trustees may authorize the execution
and performance by the Trust of one or more agreements with any person,
association, company, trust, partnership (limited or general) or other
organization whereby, subject to the supervision and control of the Board of
Trustees, any such other person, association, company, trust, partnership
(limited or general) or other organization (the "Advisor") shall render or make
available to the Trust managerial, investment, advisory and/or related services,
office space and other services and facilities (including, if deemed advisable
by the Board of Trustees, the management or supervision of the investments of
the Trust) upon such terms and conditions as may be provided in such agreement
or agreements (including, if deemed fair and equitable by the Board of Trustees,
the compensation payable thereunder by the Trust).
Section 3.8. RELATED PARTY TRANSACTIONS. Without limiting any other
procedures available by law or otherwise to the Trust, the Board of Trustees may
authorize any agreement of the character described in Section 3.7 or other
transaction with any person, association, company, trust, partnership (limited
or general) or other organization, although one or more of the Trustees or
officers of the Trust may be a party to any such agreement or an officer,
trustee, shareholder or member of such other party, and no such agreement or
transaction shall be
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invalidated or rendered void or voidable solely by reason of the existence of
any such relationship if the existence is disclosed or known to the Board of
Trustees, and the contract or transaction is approved by the affirmative vote of
a majority of the disinterested Trustees, even if they constitute less than a
quorum of the Board. Any Trustee of the Trust who is also a trustee, officer,
shareholder or member of such other entity may be counted in determining the
existence of a quorum at any meeting of the Board of Trustees considering such
matter.
Section 3.9. DETERMINATION BY BOARD. The determination as to any of
the following matters, made in good faith by or pursuant to the direction of the
Board of Trustees consistent with this Declaration of Trust and in the absence
of actual receipt of an improper benefit in money, property or services or
active and deliberate dishonesty established by a court, shall be final and
conclusive and shall be binding upon the Trust and every holder of its shares:
the amount of the net income of the Trust for any period and the amount of
assets at any time legally available for the payment of dividends, redemption of
its shares or the payment of other distributions on its shares; the amount of
paid-in surplus, net assets, other surplus, annual or other net profit, net
assets in excess of capital, undivided profits or excess of profits over losses
on sales of assets; the amount, purpose, time of creation, increase or decrease,
alteration or cancellation of any reserves or charges and the propriety thereof
(whether or not any obligation or liability for which such reserves or charges
shall have been created shall have been paid or discharged); the fair value, or
any sale, bid or asked price to be applied in determining the fair value, of any
asset owned or held by the Trust, and any matters relating to the acquisition,
holding and disposition of any assets by the Trust. In performing his duties
under this Declaration of Trust, a Trustee is entitled to rely on any
information, opinion, report or statement, including any financial statement or
other financial data, prepared or presented by: (i) an officer or employee of
the Trust whom the Trustee reasonably believes to be reliable and competent in
the matters presented; (ii) a lawyer, public accountant or other person, as to a
matter which the Trustee reasonably believes to be within the person's
professional or expert competence; or (iii) a committee of the board on which
the Trustee does not serve, as to a matter within its designated authority, if
the Trustee reasonably believes the committee to merit confidence.
Section 3.10. LEGAL TITLE. Legal title to all Trust Property shall be
vested in the Trust, but it may cause legal title to any Trust Property to be
held by or in the name of any or all of the Trustees or any other individual,
corporation, partnership, estate, trust, association or private foundation as
nominee. Any right, title or interest of the Trustees in and to the Trust
Property shall automatically vest in successor and additional Trustees upon
their qualification and acceptance of election or appointment as Trustees, and
they shall thereupon have all the rights and obligations of Trustees, whether or
not conveyancing documents have been executed and delivered pursuant to Section
3.3 or otherwise. Written evidence of qualification and acceptance of election
or appointment of successor and additional Trustees may be filed with the
records of the Trust and in such other offices, agencies or places as the Trust
or Trustees may deem necessary or desirable.
Section 3.11. RESERVED POWERS OF BOARD. The enumeration and definition
of particular powers of the Board of Trustees included in this Article III shall
in no way be limited or restricted by reference to or inference from the terms
of any other clause of this or any other provision of this Declaration of Trust,
or construed or deemed by inference or otherwise in any manner to exclude or
limit the powers conferred upon the Board of Trustees under the general laws of
the State of Maryland as now or hereafter in force.
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ARTICLE IV
RESTRICTION ON TRANSFER
ACQUISITION AND REDEMPTION OF SHARES
Section 4.1. DEFINITIONS. For the purpose of this Article IV, the
following terms shall have the following meanings:
"Act" means the Securities Act of 1933, as amended.
"Beneficial Ownership" shall mean ownership of Equity Shares (as
hereinafter defined) by a Person (as hereinafter defined) who would be treated
as an owner of such Equity Shares under Section 542(a)(2) of the Code either
directly or constructively through the application of Section 544 of the Code,
as modified by Section 856(h)(1)(B) of the Code but without regard to Section
856(h)(3) of the Code. The terms "Beneficial Owner," "Beneficially Owns,"
"Beneficially Own" and "Beneficially Owned" shall have the correlative meanings.
"Beneficiary" shall mean the beneficiary of the Special Trust (as
hereinafter defined) as determined pursuant to Section 4.19 of this Article IV.
"Debt" shall mean indebtedness of (i) the Trust or (ii) any subsidiary
thereof.
"Equity Shares" shall mean either Common Shares or Preferred Shares.
"Excess Shares" shall have the meaning set forth in Section 4.3.
"Existing Holder" shall mean Capital and Regional Properties plc, a
United Kingdom corporation.
"Existing Holder Limit" shall initially mean 18.0%, in number of
shares or value, of the outstanding Equity Shares of the Trust, and after any
adjustment as set forth in Section 4.10 of this Article IV, shall mean such
greater percentage of the outstanding Equity Shares as so adjusted. The number
and value of shares of the outstanding Equity Shares of the Trust shall be
determined by the Board of Trustees in good faith, which determination shall be
conclusive for all purposes hereof.
"Market Price" shall mean the last reported sales price of Common
Shares or Preferred Shares, as the case may be, reported on any nationally
registered securities exchange on the trading day immediately preceding the
relevant date, or if not then traded on any such exchange, the last reported
sales price of the Common Shares or Preferred Shares, as the case may be, on the
trading day immediately preceding the relevant date as reported on any exchange
or quotation system over which the Common Shares or Preferred Shares, as the
case may be, may be traded, or if not then traded over any exchange or quotation
system, then the market price of the Common Shares or Preferred Shares, as the
case may be, on the relevant date as determined in good faith by the Board of
Trustees of the Trust.
"Ownership Limit" shall initially mean 9.8%, in number of shares or
value, of the outstanding Equity Shares of the Trust, and after any adjustment
as set forth in Section 4.10
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of this Article IV, shall mean such greater percentage of the outstanding Equity
Shares as so adjusted. The number and value of shares of the outstanding Equity
Shares of the Trust shall be determined by the Board of Trustees in good faith,
which determination shall be conclusive for all purposes hereof.
"Person" shall mean an individual, corporation, partnership, estate,
trust (including a trust qualified under Section 401(a)) or 501(c)(17) of the
Code), a portion of a trust permanently set aside for or to be used exclusively
for the purposes described in Section 642(c) of the Code, association, private
foundation within the meaning of Section 509(a) of the Code or any successor
statute, joint stock company or other entity; but does not include an
underwriter which participated in any public offering registered under the Act
of any shares of the Trust for a period of 30 days following the purchase by
such underwriter of the Common Shares and/or Preferred Shares.
"Purported Beneficial Transferee" shall mean, with respect to any
purported Transfer which results in Excess Shares (as defined in Section 4.3 of
this Article IV), the purported beneficial transferee for whom the Purported
Record Transferee (as hereinafter defined) would have acquired shares of Equity
Shares, if such transfer had been valid under Section 4.2 of this Article IV.
"Purported Record Transferee" shall mean, with respect to any
purported Transfer which results in Excess Shares, the record Holder of the
Equity Shares if such transfer had been valid under Section 4.2 of this Article
IV.
"Restriction Termination Date" shall mean the first day on which the
Board of Trustees of the Trust determines that it is no longer in the best
interests of the Trust to attempt to, or continue to, qualify as a REIT.
"Special Trust" shall mean the trust created pursuant to Section 4.15
of this Article IV.
"Transfer" shall mean any sale, transfer, gift, assignment, devise or
other disposition of Equity Shares (including (i) the granting of any option or
entering into any agreement for the sale, transfer or other disposition of
Equity Shares or (ii) the sale, transfer, assignment or other disposition of any
securities or rights convertible into or exchangeable for Equity Shares, but
excluding the exchange of Debt for Equity Shares), whether by operation of law
or otherwise. The terms "Transfers" and "Transferred" shall have the
correlative meanings.
"Trustee" shall mean the Trust as trustee for the Special Trust, and
any successor trustee appointed by the Trust.
Section 4.2. OWNERSHIP LIMITATION. (i) Except as provided in Section
4.12 of this Article IV, until the Restriction Termination Date, no Person
(other than an Existing Holder) shall Beneficially Own shares of Common Shares
and/or Preferred Shares in excess of the Ownership Limit and no Existing Holder
shall Beneficially Own Common Shares and/or Preferred Shares in excess of the
Existing Holder Limit for such Existing Holder.
(ii) Subject to Section 4.22, notwithstanding any other
provisions of this Article IV and except as provided in Sections 4.9 and 4.12 of
this Article IV, until the
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Restriction Termination Date, any Transfer that, if effective, would result in
any Person (other than an Existing Holder) Beneficially Owning Common Shares
and/or Preferred Shares in excess of the Ownership Limit shall be void AB INITIO
as to the Transfer of such Common Shares and/or Preferred Shares which would be
otherwise Beneficially Owned by such Person in excess of the Ownership Limit;
and the intended transferee shall acquire no rights in such Common Shares and/or
Preferred Shares.
(iii) Subject to Section 4.22, notwithstanding any other
provisions of this Article IV and except as provided in Sections 4.9 and 4.12 of
this Article IV, until the Restriction Termination Date, any Transfer that, if
effective, would result in any Existing Holder Beneficially Owning Common Shares
and/or Preferred Shares in excess of the Existing Holder Limit shall be void AB
INITIO as to the Transfer of such Common Shares and/or Preferred Shares which
would be otherwise Beneficially Owned by such Existing Holder in excess of the
Existing Holder Limit; and such Existing Holder shall acquire no rights in such
Common Shares and/or Preferred Shares.
(iv) Subject to Section 4.22, notwithstanding any other
provisions of this Article IV and except as provided in Section 4.12 of this
Article IV, until the Restriction Termination Date, any Transfer that, if
effective, would result in the Common Shares and/or Preferred Shares being
Beneficially Owned by less than 100 Persons (determined without reference to any
rules of attribution) shall be void AB INITIO as to the Transfer of such shares
of Common Shares and/or Preferred Shares which would be otherwise Beneficially
Owned by the transferee; and the intended transferee shall acquire no rights in
such Common Shares and/or Preferred Shares.
(v) Until the Restriction Termination Date, any Transfer
that, if effective, would result in the Trust being "closely held" within the
meaning of Section 856(h) of the Code shall be void AB INITIO as to the Transfer
of the shares of Common Shares and/or Preferred Shares which would cause the
Trust to be "closely held" within the meaning of Section 856(h) of the Code or
any successor statute; and the intended transferee shall acquire no rights in
such Common Shares and/or Preferred Shares.
Section 4.3. EXCESS SHARES. (i) If, notwithstanding the other
provisions contained in this Article IV, at any time until the Restriction
Termination Date, there is a purported Transfer or other change in the capital
structure of the Trust such that any Person would Beneficially Own Common Shares
and/or Preferred Shares in excess of the Ownership Limit or that the Existing
Holder would Beneficially Own Common Shares and/or Preferred Shares in excess of
the Existing Holder Limit, then, except as otherwise provided in Sections 4.9
and 4.12, such Common Shares and/or Preferred Shares in excess of such Ownership
Limit or Existing Holder Limit (rounded up to the nearest whole share) shall
constitute "Excess Shares" and be treated as provided in this Article IV. Such
designation and treatment shall be effective as of the close of business on the
business day prior to the date of the purported Transfer or change in capital
structure.
(ii) If, notwithstanding the other provisions contained in
this Article IV, at any time until the Restriction Termination Date, there is a
purported Transfer or other change in the capital structure of the Trust (except
for a change resulting from the exchange of Debt for Equity Shares) which, if
effective, would cause the Trust to become "closely held" within the meaning of
Section 856(h) of the Code or any successor statute, then the Common
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Shares and/or Preferred Shares being Transferred which would cause the Trust to
be "closely held" within the meaning of Section 856(h) of the Code or any
successor statute (rounded up to the nearest whole share) shall constitute
Excess Shares and be treated as provided in this Article IV. Such designation
and treatment shall be effective as of the close of business on the business day
prior to the date of the purported Transfer or change in capital structure.
(iii) The Ownership Limit shall not apply to the acquisition of
Common Shares or Preferred Shares by an underwriter in a public offering of such
shares or in any transaction involving the issuance of shares by the Trust in
which the Board of Trustees determines that the underwriter or another person
initially acquiring such shares will timely distribute such shares to others
such that the following such distribution none of such shares will be Excess
Shares.
Section 4.4. PREVENTION OF TRANSFER. If the Board of Trustees or its
designee shall at any time determine in good faith that a Transfer has taken
place in violation of Section 4.2 of this Article IV or that a Person intends to
acquire or has attempted to acquire Beneficial Ownership of any shares of the
Trust in violation of Section 4.2 of this Article IV, the Board of Trustees or
its designee shall take such action as it deems advisable to refuse to give
effect to or to prevent such Transfer, including, but not limited to, refusing
to give effect to such Transfer on the books of the Trust, directing the Trust's
transfer agent and/or registrar to refuse to give effect to such Transfer on the
books of the Trust or instituting proceedings to enjoin such Transfer; provided,
however, that any Transfers or attempted Transfers in violation of subparagraphs
Section 4.2(ii), (iii) and (iv) of this Article IV shall automatically result in
the designation and treatment described in Section 4.3 irrespective of any
action (or non-action) by the Board of Trustees or its designee.
Section 4.5. NOTICE TO TRUST. Any Person who acquires or attempts to
acquire shares in violation of Section 4.2 of this Article IV, or any Person who
is a transferee such that Excess Shares result under Section 4.3 of this Article
IV, shall immediately give written notice or, in the event of a proposed or
attempted Transfer, give at least 15 days prior written notice to the Trust of
such event and shall provide to the Trust such other information as the Trust
may request in order to determine the effect, if any, of such Transfer or
attempted Transfer on the Trust's status as a REIT.
Section 4.6. INFORMATION FOR TRUST. Until the Restriction Termination
Date:
(i) every Beneficial Owner of more than 5.0% (or such other
percentage, between 1/2 of 1% and 5%, as provided in the regulations of the
Internal Revenue Service promulgated under the Code) of the number or value of
outstanding Equity Shares of the Trust shall, within 30 days after January 1 of
each year, give written notice to the Trust stating the name and address of such
Beneficial Owner, the number of shares Beneficially Owned, and a description of
how such shares are held. Each such Beneficial Owner shall provide to the Trust
such additional information as the Trust may reasonably request in order to
determine the effect, if any, of such Beneficial Ownership on the Trust's status
as a REIT; and
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(ii) each Person who is a Beneficial Owner of Common Shares
and/or Preferred Shares and each Person (including the shareholder of record)
who is holding Common Shares and/or Preferred Shares for a Beneficial Owner
shall provide to the Trust such information as the Trust may reasonably request
in order to determine the Trust's status as a REIT, to comply with the
requirements of any taxing authority or governmental agency or to determine any
such compliance.
Section 4.7. OTHER ACTION BY BOARD. Subject to Section 4.22,
notwithstanding any other provisions of this Article IV, nothing contained in
this Article IV shall limit the authority of the Board of Trustees to take such
other action as it deems necessary or advisable to protect the Trust and the
interests of its shareholders by preservation of the Trust's status as a REIT.
Section 4.8. AMBIGUITIES. In the case of an ambiguity in the
application of any of the provisions of this Article IV, including any
definition contained in Section 4.1, the Board of Trustees shall have the power
to determine the application of the provisions of this Article IV with respect
to any situation based on the facts known to it.
Section 4.9. MODIFICATION OF EXISTING HOLDER LIMITS. Subject to the
limitations provided in Section 4.11 of this Article IV, an Existing Holder may
elect to participate in a dividend reinvestment plan approved by the Board of
Trustees of the Trust which results in Beneficial Ownership of Common Shares
and/or Preferred Shares by such participating Existing Holder. Any such
participation shall increase the Existing Holder Limit for the affected Existing
Holder to the maximum extent possible under Section 4.11 to permit Beneficial
Ownership of the Common Shares and/or Preferred Shares acquired as a result of
such participation.
Section 4.10. INCREASE IN OWNERSHIP LIMIT. Subject to the limitations
provided in Section 4.11 of this Article IV, the Board of Trustees may from time
to time increase the Ownership Limit.
Section 4.11. LIMITATIONS ON CHANGES IN OWNERSHIP LIMIT. (i) Neither
the Ownership Limit nor the Existing Holder Limit may be increased (nor may any
additional Existing Holder Limit be created) if, after giving effect to such
increase (or creation), five Beneficial Owners of Equity Shares (including all
of the then Existing Holders) could Beneficially Own, in the aggregate, more
than 50% in number or value of the outstanding Equity Shares.
(ii) Prior to the modification of the Ownership Limit or
Existing Holder Limit pursuant to Sections 4.9 or 4.10 of this Article IV, the
Board of Trustees of the Trust shall require such opinions of counsel,
affidavits, undertakings or agreements as it may deem necessary to advisable in
order to ensure the Trust's status as a REIT will not be affected.
(iii) No Existing Holder Limit shall be reduced to a percentage
which is less than the Ownership Limit.
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Section 4.12. EXEMPTIONS BY BOARD. The Board of Trustees, upon receipt
of a ruling from the Internal Revenue Service or an opinion of counsel or other
evidence satisfactory to the Board of Trustees and upon at least 15 days written
notice from a Transferee prior to a proposed Transfer which, if consummated,
would result in the intended Transferee owning shares in excess of Ownership
Limit or Existing Holder Limit, as the case may be, and upon such other
conditions as the Board of Trustees may direct, may exempt a Person from the
Ownership Limit or the Existing Holder Limit, as the case may be.
Section 4.13. LEGEND. Each certificate for Common Shares and for
Preferred Shares shall bear substantially the following legend:
The securities represented by this certificate are subject
to restrictions on transfer for the purpose of the Trust's
maintenance of its status as a real estate investment trust
under the Internal Revenue Code of 1986, as amended. Except
as otherwise provided pursuant to the Declaration of Trust
of the Trust, no Person may Beneficially Own Common Shares
and/or Preferred Shares in excess of 9.8% (or such greater
percentage as may be determined by the Board of Trustees of
the Trust) of the number or value of the outstanding Equity
Shares of the Trust (unless such Person is an Existing
Holder). Any Person who attempts or proposes to
Beneficially Own Common Shares and/or Preferred Shares in
excess of the above limitations must notify the Trust in
writing at least 15 days prior to such proposed or attempted
Transfer. All capitalized terms in this legend have the
meanings defined in the Declaration of Trust of the Trust, a
copy of which, including the restrictions on transfer, will
be sent without charge to each shareholder who so requests.
If the restrictions on transfer are violated, the securities
represented hereby will be designated and treated as Excess
Shares which will be held in trust by the Trust.
Section 4.14. SEVERABILITY. If any provision of this Article IV or any
application of any such provision is determined to be void, invalid or
unenforceable by any court having jurisdiction over the issue, the validity and
enforceability of the remaining provisions shall not be affected and other
applications of such provision shall be affected only to the extent necessary to
comply with the determination of such court.
Section 4.15. SPECIAL TRUST FOR EXCESS SHARES. Upon any purported
Transfer that results in Excess Shares pursuant to Section 4.3 of this Article
IV, such Excess Shares shall be deemed to have been transferred to the Trust, as
Trustee of a Special Trust for the benefit of such Beneficiary or Beneficiaries
to whom an interest in such Excess Shares may later be transferred pursuant to
Section 4.18 of this Article IV. Excess Shares so held in the Special Trust
shall be issued and outstanding shares of the Trust. The Purported Record
Transferee shall have no rights in such Excess Shares except the right to
designate a transferee of such Excess Shares upon the terms specified in Section
4.18 of this Article IV. The Purported Beneficial Transferee shall have no
rights in such Excess Shares except as provided in Section 4.18 of this Article
IV.
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Section 4.16. NO DIVIDENDS OR DISTRIBUTIONS FOR EXCESS SHARES. Excess
Shares shall not be entitled to any distributions or dividends. Any dividend or
distribution paid prior to the discovery by the Trust that the Common Shares
and/or Preferred Shares have been Transferred so as to be deemed Excess Shares
shall be repaid to the Trust upon demand.
Section 4.17. LIQUIDATION DISTRIBUTIONS FOR EXCESS SHARES. Subject to
the preferential rights of the Preferred Shares, if any, as may be determined by
the Board of Trustees of the Trust, in the event of any voluntary or involuntary
liquidation, dissolution or winding up of, or any other distribution of all or
substantially all of the assets of, the Trust, each holder of Excess Shares
shall be entitled to receive, in the case of Excess Shares constituting
Preferred Shares, ratably with each other holder of Preferred Shares and Excess
Shares constituting Preferred Shares and, in the case of Excess Shares
constituting Common Shares, ratably with each other holder of Common Shares and
Excess Shares constituting Common Shares, that portion of the assets of the
Trust available for distribution to its shareholders as the number of Excess
Shares held by such holder bears to the total number of shares of (i) Preferred
Shares and Excess Shares then outstanding in the case of Excess Shares
constituting Preferred Shares and (ii) Common Shares and Excess Shares then
outstanding in the case of Excess Shares constituting Common Shares. The Trust,
as holder of the Excess Shares in the Special Trust, or if the Trust shall have
been dissolved, any trustee appointed by the Trust prior to its dissolution,
shall distribute ratably to the Beneficiaries of the Special Trust, when
determined, any such assets received in respect of the Excess Shares in any
liquidation, dissolution or winding up of, or any distribution of the assets of
the Trust.
Section 4.18. VOTING RIGHTS FOR EXCESS SHARES. The holders of Excess
Shares shall not be entitled to vote on any matter.
Section 4.19. NON-TRANSFERABILITY OF EXCESS SHARES. Subject to
Section 4.22, Excess Shares shall not be transferable. The Purported Record
Transferee may freely designate a Beneficiary of an interest in the Special
Trust (representing the number of shares of Excess Shares held by the Special
Trust attributable to a purported Transfer that resulted in the Excess Shares),
if (i) the shares of Excess Shares held in the Special Trust would not be Excess
Shares in the hands of such Beneficiary and (ii) the Purported Beneficial
Transferee does not receive a price for designating such Beneficiary that
reflects a price per share for such Excess Shares that exceeds (x) the price per
share such Purported Beneficial Transferee paid for the Common Shares and/or
Preferred Shares, as the case may be, in the purported Transfer that resulted in
the Excess Shares, or (y) if the Purported Beneficial Transferee did not give
value for such Excess Shares (through a gift, devise or other transaction), a
price per share equal to the Market Price for Excess Shares on the date of the
purported Transfer that resulted in the Excess Shares. Upon such transfer of an
interest in the Special Trust, the corresponding Excess Shares in the Special
Trust shall be automatically exchanged for an equal number of Common Shares
and/or Preferred Shares, as applicable, and such Common Shares and/or Preferred
Shares, as applicable, shall be transferred of record to the transferee of the
interest in the Special Trust if such Common Shares and/or Preferred Shares, as
applicable, would not be Excess Shares in the hands of such transferee. Prior
to any transfer of any interest in the Trust, the Purported Record Transferee
must give advance notice to the Special Trust of the intended transfer and the
Special Trust must have waived in writing its purchase rights under Section 4.20
of this Article IV.
Notwithstanding the foregoing, if a Purported Beneficial Transferee
receives a price for designating a Beneficiary of an interest in the Special
Trust that exceeds the amounts
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allowable under this Section 4.19 of this Article IV, such Purported Beneficial
Transferee shall pay, or cause such Beneficiary to pay such excess to the Trust.
If any of the foregoing restrictions on transfer of Excess Shares are
determined to be void, invalid or unenforceable by any court of competent
jurisdiction, then the Purported Record Transferee may be deemed, at the option
of the Company, to have acted as an agent of the Company in acquiring such
Excess Shares and to hold such Excess Shares on behalf of the Company.
Section 4.20. CALL BY TRUST ON EXCESS SHARES. Excess Shares shall be
deemed to have been offered for sale to the Trust, or its designee, at a price
per share equal to the lesser of (i) the price per share in the transaction that
created such Excess Shares, (or, in the case of a devise or gift, the Market
Price at the time of such devise or gift) and (ii) the Market Price of the
Common Shares or Preferred Shares to which such Excess Shares relates on the
date the Trust, or its designee, accepts such offer. The Trust shall have the
right to accept such offer for a period of ninety days after the later of (i)
the date of the Transfer which resulted in such Excess Shares and (ii) the date
the Board of Trustees determines in good faith that a Transfer resulting in
Excess Shares has occurred, if the Trust does not receive a notice of such
Transfer pursuant to Section 4.5 of this Article IV but in no event later than a
permitted Transfer pursuant to and in compliance with the terms of Section 4.19
of this Article IV.
Section 4.21. INVALIDITY. If any provision of this Article IV or any
application of such provision is determined to be invalid by any federal or
state court having jurisdiction over the issue, the validity of the remaining
provisions shall not be affected except only to the extent necessary to comply
with the determination of such court.
Section 4.22. SETTLEMENTS ON A NATIONAL SECURITIES EXCHANGE. Nothing
in Article IV shall preclude the settlement of any transaction entered into
through the facilities of the New York Stock Exchange or any other national
securities exchange or automated inter-dealer quotation system. The immediately
foregoing sentence shall not limit the authority of the Board of Trustees to
take any and all actions it deems necessary or advisable to protect the Trust
and the interests of the Shareholders in preserving the Trust status as a REIT,
so long as such actions do not prohibit the settlement of any transactions
entered into through the facilities of the New York Stock Exchange or any other
national securities exchange or automated inter-dealer quotation system. The
fact that the settlement is so permitted shall not negate the effect of any
other provision of this Article IV, and any transferee in such a transaction and
the Shares so transferred shall be subject to all of the provisions and
limitations set forth in this Article IV.
ARTICLE V
AMENDMENTS
Section 5.1. POWER TO AMEND. The Trust reserves the right from time
to time to make any amendment to this Declaration of Trust, now or hereafter
authorized by law, including any amendment altering the terms or contract
rights, as expressly set forth in this Declaration of Trust, of any shares of
outstanding stock. All rights and powers conferred by this Declaration of Trust
on shareholders, Trustees and officers are granted subject to this reservation.
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Section 5.2. BY SHAREHOLDERS. Except as provided in Section 5.3
below, any amendment to this Declaration of Trust shall be valid only if such
amendment shall have been approved by the affirmative vote of two-thirds of all
the votes entitled to be cast on the matter except to the extent Maryland law
requires a higher vote.
Section 5.3. BY TRUSTEES. The Trustees, by a two-thirds vote, may
amend provisions of this Declaration of Trust from time to time to enable the
Trust to qualify as a real estate investment trust under the Code or under Title
8.
ARTICLE VI
LIMITATION OF LIABILITY
Section 6.1. LIMITATION OF SHAREHOLDER AND TRUSTEE LIABILITY. No
shareholder or Trustee shall be liable for any debt, claim, demand, judgment or
obligation of any kind of, against or with respect to the Trust by reason of his
being a shareholder or Trustee, nor shall any shareholder or Trustee be subject
to any personal liability whatsoever, in tort, contract or otherwise, to any
person in connection with the Trust Property or the affairs of the Trust.
Section 6.2. LIMITATION OF TRUSTEE AND OFFICER LIABILITY. To the
maximum extent that Maryland law in effect from time to time permits limitation
of the liability of Trustees and officers of a real estate investment trust, no
Trustee or officer of the Trust shall be liable to the Trust or to any
shareholder for money damages. Neither the amendment nor repeal of this
Section, nor the adoption or amendment of any other provision of this
Declaration of Trust inconsistent with this Section, shall apply to or affect in
any respect the applicability of the preceding sentence with respect to any act
or failure to act which occurred prior to such amendment, repeal or adoption.
In the absence of any Maryland statute limiting the liability of Trustees and
officers of a Maryland real estate investment trust for money damages in a suit
by or on behalf of the Trust or by any shareholder, no Trustee or officer of the
Trust shall be liable to the Trust or to any shareholder for money damages
except to the extent that (a) the Trustee or officer actually received an
improper benefit or profit in money, property or services, for the amount of the
benefit or profit in money, property or services actually received or (b) a
judgment or other final adjudication adverse to the Trustee or officer is
entered in a proceeding based on a finding in the proceeding that the Trustee's
or officer's action or failure to act was the result of active and deliberate
dishonesty and was material to the cause of action adjudicated in the
proceeding.
Section 6.3. EXPRESS EXCULPATORY CLAUSES. Neither the shareholders
nor the Trustees, officers, employees or agents of the Trust shall be liable
under any written instrument creating an obligation of the Trust, and all
persons shall look solely to the property of the Trust for the payment of any
claim under or for the performance of that instrument. The omission of the
foregoing exculpatory language from any instrument shall not affect the validity
or enforceability of such instrument and shall not render any shareholder,
Trustee, officer, employee or agent liable thereunder to any third party, nor
shall the Trustees or any officer, employee or agent of the Trust be liable to
anyone for such omission.
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ARTICLE VII
NOMINATION AND BUSINESS PROCEDURES
Section 7.1. GENERAL. At a meeting of the shareholders, no business
shall be conducted which has not been properly brought before the meeting as set
forth in this Article VII. To be property brought before a meeting, business
must be brought before the meeting by or at the direction of the Board of
Trustees or brought before the meeting by a shareholder. For business to be
properly brought before a meeting by a shareholder, the Secretary of the Trust
must have received written notice not less than sixty (60) days nor more than
ninety (90) days prior to the date fixed by the Board of Trustees for such
meeting; provided, however, that in the event that less than seventy (70) days'
notice or prior public disclosure is given or made to shareholders of the date
of such meeting, notice by a shareholder to be timely made must be received no
later than the close of business on the tenth (10th) day following the day on
which such notice of the date of the meeting was mailed or the public disclosure
was made.
Section 7.2. BOARD OF TRUSTEE NOMINATIONS. In the case of shareholder
nominations for election to the Board of Trustees, the notice set forth in
Section 7.1 shall set forth (i) the name, age, business address and, if known,
residence address of each nominee proposed in such notice, (ii) the principal
occupations or employment of each such nominee for the past five (5) years,
(iii), the number of shares of the Trust which are beneficially owned by each
such nominee, (iv) other trusteeships held by each such nominee, (v) the names
of business entities of which each such nominee owns a ten percent (10%) or more
beneficial interest, and (vi) all other information with respect to the nominees
required by the Federal proxy rules in effect at the time the notice is
submitted. In addition, such notice shall be accompanied by a statement, over
the signature of each proposed nominee, that he consents to being a nominee, if
elected he intends to serve as a Trustee, and confirming the information with
respect to him set forth in the notice.
Section 7.3. SHAREHOLDER PROPOSALS. In the case of shareholder
proposals or business other than the election of Trustees, the notice set forth
in Section 7.1 shall set forth (i) a brief description of the proposal or
business to be brought before the meeting, (ii) the name, age, business and
residence address of the shareholder submitting the proposal or business, (iii)
the principal occupation or employment of that shareholder, (iv) the number of
shares of the Trust which are beneficially owned by that shareholder, and (v)
any material interest of that shareholder in the proposal or business to be
brought before the meeting.
Section 7.4. DETERMINATIONS BY CHAIRMAN. The Chairman of any meeting
in respect of which a shareholder nomination or proposal has been submitted,
may, if the facts as determined by the Chairman in his sole discretion warrant,
determine and declare to the meeting that the shareholder nomination or proposal
was not made in accordance with the procedures set forth in this Article VII, in
which event the defective nomination or proposal shall not be considered at such
meeting and shall be disregarded and no votes cast either for or against such
nomination or proposal shall be counted or, in the event votes have previously
been cast for or against such nomination or proposal, the duly appointed
inspectors for such meeting shall disregard any such votes.
Section 7.5. EXCLUSIVITY. Notwithstanding anything in this
Declaration of Trust or the By-Laws of this Trust to the contrary, no elections,
proposals or other business shall be
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conducted at any meeting of the shareholders except in accordance with the
procedures set forth in this Article VII.
ARTICLE VIII
QUORUM
At an annual meeting of the shareholders called for the sole purpose of
electing Trustees and ratifying the selection of the Trust's independent public
accountants, the holders of one-third of the outstanding shares of the Trust
entitled to vote, present in person or represented by proxy, shall constitute a
quorum at such annual meeting of shareholders; provided, if less than one-third
of the outstanding shares entitled to vote are represented at said meeting, a
majority of the shares so represented may adjourn the meeting at any time
without further notice. At any other annual meeting or any special meeting of
shareholders, the holders of a majority of the outstanding shares of the Trust
entitled to vote, present in person or represented by proxy, shall constitute a
quorum at such meeting of shareholders; provided, if less than a majority of the
outstanding shares entitled to vote are represented at said meeting, a majority
of the shares so represented may adjourn the meeting at any time without further
notice. If a quorum is present at any meeting of the shareholders, the
affirmative vote of the majority of the shares entitled to vote represented at
the meeting and entitled to vote on the matter shall be the act of the
shareholders, unless a greater vote is required by this Declaration of Trust or
Title 8. At any adjourned meeting at which a quorum shall be present, any
business may be transacted which might have been transacted at the original
meeting. Withdrawal of shareholders from any meeting shall not cause failure of
a duly constituted quorum at that meeting.
ARTICLE IX
MISCELLANEOUS
Section 9.1. CONSTRUCTION. This Declaration of Trust shall be
construed in such a manner as to give effect to the intent and purposes of the
Trust and this Declaration of Trust. If any provisions hereof appear to be in
conflict, more specific provisions shall control over general provisions. This
Declaration of Trust shall govern all of the relationships among the Trustees
and shareholders of the Trust; and each provision hereof shall be effective for
all purposes and to all persons dealing with the Trust to the fullest extent
possible under applicable law in each jurisdiction in which the Trust shall
engage in business. In defining or interpreting the powers and duties of the
Trust and the Trustees and officers, reference may be made, to the extent
appropriate and not inconsistent with the Code or Title 8, to Titles 1 through 3
of the Corporations and Associations Article of the Annotated Code of Maryland.
In furtherance and not in limitation of the foregoing, in accordance with the
provisions of Title 3, Subtitles 6 and 7, of the Corporations and Associations
Article of the Annotated Code of Maryland, the Trust shall be included within
the definition of "corporation" for purposes of such provisions.
Section 9.2. HEADINGS FOR REFERENCE ONLY. Headings preceding the
text, articles and sections hereof have been inserted solely for convenience and
reference, and shall not be construed to affect the meaning, construction or
effect of this Declaration of Trust.
Section 9.3. FILING AND RECORDING. This Declaration of Trust and any
amendment hereto shall be filed for record with the State Department of
Assessments and Taxation of Maryland and may also be filed or recorded in such
other places as the Trustees deem
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appropriate, but failure to file for record this Declaration of Trust or any
amendment hereto in any office other than in the State of Maryland shall not
affect or impair the validity or effectiveness of this Declaration of Trust or
any amendment hereto. An amended Declaration of Trust shall, upon filing, be
conclusive evidence of all amendments contained therein and may thereafter be
referred to in lieu of the original Declaration of Trust and the various
amendments thereto.
Section 9.4. APPLICABLE LAW. This Declaration of Trust has been
executed with reference to and its construction and interpretation shall be
governed by the laws of Maryland, and the rights of all parties and the
construction and effect of every provision hereof shall be subject to and
construed according to the laws of Maryland.
Section 9.5. CERTIFICATIONS. Any certificates signed by a person who,
according to the records of the State Department of Assessments and Taxation of
Maryland, appears to be a Trustee hereunder, shall be conclusive evidence as to
the matters so certified in favor of any person dealing with the Trust or the
Trustees or any one or more of them, and the successors or assigns of such
persons, which certificate may certify to any matter relating to the affairs of
the Trust, including but not limited to any of the following: a vacancy among
the Trustees; the number and identity of Trustees; this Declaration of Trust and
any amendments thereto, or any restated Declaration of Trust and any amendments
thereto, or that there are no amendments to the Declaration of Trust or any
restated Declaration of Trust; a copy of the By-Laws of the Trust or any
amendment thereto; the due authorization of the execution of any instrument or
writing; the vote at any meeting of Trustees or a committee thereof or
shareholders; the fact that the number of Trustees present at any meeting or
executing any written instrument satisfies the requirements of the Declaration
of Trust; a copy of any By-Law adopted by the shareholders or the identity of
any officer elected by the Trustees; or the existence or nonexistence of any
fact or facts which in any manner relate to the affairs of the Trust. If the
Declaration of Trust or any restated Declaration of Trust is filed or recorded
in any recording office other than the State Department of Assessments and
Taxation of Maryland, anyone dealing with real estate so located that
instruments affecting the same should be filed or recorded in such recording
office may rely conclusively upon any certificate of the kind described above
which is signed by a person who according to the records of such recording
office appears to be a Trustee hereunder. In addition, the Secretary or any
Assistant Secretary of the Trust or any other officer of the Trust designated by
the By-Laws or by action of the Trustees may sign any certificate of the kind
described in this Section 9.5, and such certificate shall be conclusive evidence
as to the matters so certified in favor of any person dealing with the Trust,
and the successors and assigns of such person.
Section 9.6. SEVERABILITY. If any provision of the Declaration of
Trust shall be invalid or unenforceable, such invalidity or unenforceability
shall attach only to such provision and shall not in any manner affect or render
invalid or unenforceable any other provision of the Declaration of Trust, and
the Declaration of Trust shall be carried out, if possible, as if such invalid
or unenforceable provision were not contained therein.
Section 9.7. ANNUAL MEETING OF SHAREHOLDERS. An annual meeting of the
shareholders shall be held each year for the purpose of electing Trustees and
for the transaction of such other business as may come before the meeting. The
date of the annual meeting shall be set by the Board of Trustees on a date
following the availability of the trust's audited financial statements of the
preceding year but in no event later than May 31, after delivery of
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the Trust's annual report. The annual meeting of shareholders shall be held at
a convenient location and on proper notice as provided in the By-Laws of the
Trust.
Section 9.8. BY-LAWS. The By-Laws of the Trust may be altered,
amended or repealed, and new By-Laws may be adopted, at any meeting of the Board
of Trustees of the Trust by a majority vote of the Trustees, subject to repeal
or change of any such amendment by the affirmative vote of a majority of the
shareholders of the Trust entitled to vote thereon.
Section 9.9. COUNTERPARTS. This Declaration of Trust may be executed
in any number of counterparts, all of which taken together shall constitute one
Declaration of Trust.
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IN WITNESS WHEREOF, each of the undersigned has executed this Declaration
of Trust on this 12th day of August, 1997 and each of the undersigned
acknowledges the same to be his act.
/s/ Martin Barber
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Martin Barber, Trustee
/s/ John S. Gates, Jr.
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John S. Gates, Jr., Trustee
/s/ Robert L. Stovall
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Robert L. Stovall, Trustee
/s/ Nichlas C. Babson
------------------------------------------
Nicholas C. Babson, Trustee
/s/ Alan D. Feld
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Alan D. Feld, Trustee
/s/ John J. Kinsella
------------------------------------------
John J. Kinsella, Trustee
/s/ Thomas E. Robinson
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Thomas E. Robinson, Trustee
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CENTERPOINT PROPERTIES TRUST
ARTICLES SUPPLEMENTARY
ESTABLISHING AND FIXING THE RIGHTS AND
PREFERENCES OF A SERIES OF PREFERRED SHARES OF BENEFICIAL INTEREST
CenterPoint Properties Trust, a Maryland real estate investment trust (the
"Company"), certifies to the State Department of Assessments and Taxation of
Maryland that:
FIRST: Pursuant to the authority vested in the Board of Trustees of the
Company (the "Board of Trustees") by Section 2.3 of the Company's Declaration of
Trust (the "Declaration of Trust") and by Section 8-203 of the Maryland General
Corporation Law, the Board of Trustees, by duly adopted resolution dated October
27, 1997, has duly designated 3,000,000 shares of the 10,000,000 authorized
Series Preferred Shares of beneficial interest in the Company as a series
designated the "8.48% Series A Cumulative Redeemable Preferred Shares of
Beneficial Interest" which shall possess the preferences, rights, restrictions,
limitations as to dividends, qualifications and terms and conditions of
redemption of shares as set forth in these Articles Supplementary:
(1) DESIGNATION AND NUMBER. A series of the Series Preferred Shares in
the Company (the "Preferred Shares") designated the "8.48% Series A Cumulative
Redeemable Preferred Shares of Beneficial Interest" (the "Series A Preferred"),
par value $0.001 per share, is hereby established. The number of shares of the
Series A Preferred shall be 3,000,000.
(2) RANK. The Series A Preferred will, with respect to dividend rights
and rights upon liquidation, dissolution or winding up of the Company, rank (a)
senior to all classes or series of common shares of beneficial interest of the
Company (the "Common Shares") and to all equity securities ranking junior to
such Series A Preferred; (b) on a parity with all equity securities issued by
the Company the terms of which specifically provide that such equity securities
rank on a parity with the Series A Preferred; and (c) junior to all equity
securities issued in accordance with Section 6(d) below by the Company the terms
of which specifically provide that such equity securities rank senior to the
Series A Preferred. The term "equity securities" shall not include convertible
debt securities.
(3) DIVIDENDS.
(a) Holders of the shares of Series A Preferred shall be entitled to
receive, when and as authorized by the Board of Trustees, out of funds legally
available for the payment of dividends, cumulative preferential cash dividends
at the rate of 8.48% per annum of the $25.00 liquidation preference (equivalent
to a fixed annual amount of $2.12 per share). Such dividends shall be cumulative
from the first date on which any Series A Preferred is issued and shall be
payable quarterly in arrears on or before the thirtieth (30th) day of January,
April, July and October of each year or, if any such date is not a business day
(as defined herein), the next succeeding business day (each, a "Dividend Payment
Date"). The first dividend, which will be
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payable on January 30, 1998, will be for less than a full quarter. Such dividend
and any dividend payable on the Series A Preferred for any partial dividend
period will be computed on the basis of a 360-day year consisting of twelve
30-day months. Dividends will be payable to holders of record as they appear in
the share records of the Company at the close of business on the applicable
record date, which shall be the fifteenth (15th) day of the calendar month in
which the applicable Dividend Payment Date falls or such other date designated
by the Board of Trustees of the Company for the payment of dividends that is not
more than thirty (30) nor less than ten (10) days prior to such Dividend Payment
Date (each, a "Dividend Record Date"). As used herein, the term "business day"
shall mean any day other than a Saturday, Sunday, or a day on which banking
institutions in the state of New York are authorized or obligated by law or
executive order to close.
(b) No dividends on shares of Series A Preferred shall be authorized
by the Board of Trustees of the Company or paid or set apart for payment by the
Company at such time as the terms and provisions of any agreement of the
Company, including any agreement relating to its indebtedness, prohibits such
authorization, payment or setting apart for payment or provides that such
authorization, payment or setting apart for payment would constitute a breach
thereof or a default thereunder, or if such authorization or payment shall be
restricted or prohibited by law.
(c) Notwithstanding the foregoing, dividends on the Series A
Preferred will accrue whether or not the terms and provisions set forth in
Section 3(b) hereof at any time prohibit the current payment of dividends,
whether or not the Company has earnings, whether or not there are funds legally
available for the payment of such dividends and whether or not such dividends
are authorized. Accrued but unpaid dividends on the Series A Preferred will
accumulate as of the Dividend Payment Date on which they first become payable.
(d) Except as provided in Section 3(e) below, no dividends (other
than a dividend of the Common Shares or in any other shares of beneficial
interest ranking junior to the Series A Preferred as to dividends and upon
liquidation) shall be authorized or paid or set apart for payment, nor shall any
other distribution be authorized or made, upon the Common Shares, or any other
shares of beneficial interest of the Company ranking junior to or on a parity
with the Series A Preferred as to dividends or upon liquidation, for any period
unless full cumulative dividends for all past dividend periods and the then
current dividend period have been or contemporaneously are (i) authorized and
paid or (ii) authorized and a sum sufficient for the payment thereof is set
apart for such payment on the Series A Preferred.
(e) When dividends are not paid in full (or a sum sufficient for such
full payment is not so set apart) upon the Series A Preferred and the shares of
any other series of Preferred Shares ranking on a parity as to dividends with
the Series A Preferred, all dividends authorized upon the Series A Preferred and
any other series of Preferred Shares ranking on a parity as to dividends with
the Series A Preferred shall be authorized pro rata so that the amount of
dividends authorized per share of Series A Preferred and such other series of
Preferred Shares shall in all cases bear to each other the same ratio that
accrued dividends per share on the Series A Preferred and such other series of
Preferred Shares (which shall not include any accrual in
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respect of unpaid dividends on such other series of Preferred Shares for prior
dividend periods if such other series of Preferred Shares does not have a
cumulative dividend) bear to each other. No interest, or sum of money in lieu of
interest, shall be payable in respect of any dividend payment or payments on
Series A Preferred which may be in arrears.
(f) Except as provided in the immediately preceding paragraph, unless
full cumulative dividends on the Series A Preferred have been or
contemporaneously are authorized and paid or declared and a sum sufficient for
the payment thereof is set apart for payment for all past dividend periods and
the then current dividend period, no Common Shares, or any other shares of
beneficial interest of the Company ranking junior to or on a parity with the
Series A Preferred as to dividends or upon liquidation, shall be redeemed,
purchased or otherwise acquired for any consideration (or any moneys be paid to
or made available for a sinking fund for the redemption of any such shares) by
the Company (except by conversion into or exchange for other shares of
beneficial interest of the Company ranking junior to the Series A Preferred as
to dividends and upon liquidation, and except as set forth in Section 5(e)
below).
(g) Holders of the Series A Preferred shall not be entitled to any
dividend, whether payable in cash, property or shares of beneficial interest in
excess of full cumulative dividends on the Series A Preferred as described
above. Any dividend payment made on shares of the Series A Preferred shall first
be credited against the earliest accrued but unpaid dividend due with respect to
such shares which remains payable.
(h) If, for any taxable year, the Company elects to designate as
"capital gain dividends" (as defined in Section 857 of the Internal Revenue Code
of 1986, as amended (the "Code")) any portion (the "Capital Gains Amount") of
the dividends (within the meaning of the Code) paid or made available for the
year to holders of all classes of shares of beneficial interest in the Company
(the "Total Dividends"), then the portion of the Capital Gains Amount that will
be allocable to the holders of the Series A Preferred will be the Capital Gains
Amount multiplied by a fraction, the numerator of which will be the total
dividends (within the meaning of the Code) paid or made available to the holders
of the Series A Preferred for the year and the denominator of which shall be the
Total Dividends.
(4) LIQUIDATION PREFERENCE.
(a) Upon any voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Company, the holders of shares of Series A
Preferred then outstanding are entitled to be paid out of the assets of the
Company legally available for distribution to its shareholders a liquidation
preference of $25.00 per share, plus an amount equal to any accrued and unpaid
dividends to the date of payment (whether or not declared), before any
distribution of assets is made to holders of Common Shares or any other class or
series of shares of beneficial interest of the Company that ranks junior to the
Series A Preferred as to liquidation rights.
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(b) In the event that, upon any such voluntary or involuntary
liquidation, dissolution or winding up, the available assets of the Company are
insufficient to pay the amount of the liquidating distributions on all
outstanding shares of Series A Preferred and the corresponding amounts payable
on all shares of other classes or series of shares of beneficial interest of the
Company ranking on a parity with the Series A Preferred in the distribution of
assets, then the holders of the Series A Preferred and all other such classes or
series of shares of beneficial interest shall share ratably in any such
distribution of assets in proportion to the full liquidating distributions to
which they would otherwise be respectively entitled.
(c) Written notice of any such liquidation, dissolution or winding up
of the Company, stating the payment date or dates when, and the place or places
where, the amounts distributable in such circumstances shall be payable, shall
be given by first class mail, postage pre-paid, not less than thirty (30) nor
more than sixty (60) days prior to the payment date stated therein, to each
record holder of the Series A Preferred at the respective addresses of such
holders as the same shall appear on the share transfer records of the Company.
(d) After payment of the full amount of the liquidating distributions
to which they are entitled, the holders of Series A Preferred will have no right
or claim to any of the remaining assets of the Company.
(e) The consolidation or merger of the Company with or into any other
corporation, trust or entity or of any other corporation, trust or other entity
with or into the Company or the sale, lease or conveyance of all or
substantially all of the property or business of the Company shall not be deemed
to constitute a liquidation, dissolution or winding up of the Company.
(5) REDEMPTION
(a) RIGHT OF OPTIONAL REDEMPTION. The Series A Preferred is not
redeemable prior to October 30, 2002. However, in order to ensure that the
Company remains a qualified real estate investment trust ("REIT") for federal
income tax purposes, the Series A Preferred shall be subject to the provisions
of Article IV of the Declaration of Trust pursuant to which Series A Preferred
owned by a shareholder in excess of the Ownership Limit (as defined in the
Declaration of Trust) will constitute Excess Shares (as defined in the
Declaration of Trust) and the Company will have the right to purchase Excess
Shares from the holder. On and after October 30, 2002, the Company, at its
option and upon not less than thirty (30) nor more than sixty (60) days' written
notice, may redeem shares of the Series A Preferred, in whole or in part, at any
time or from time to time, for cash at a redemption price of $25.00 per share,
plus all accrued and unpaid dividends thereon to the date fixed for redemption,
without interest. If less than all of the outstanding shares of Series A
Preferred are to be redeemed, the Series A Preferred to be redeemed shall be
redeemed pro rata (as nearly as may be practicable without creating fractional
shares) or by any other equitable method determined by the Company.
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(b) LIMITATIONS ON REDEMPTION.
(i) The redemption price of the Series A Preferred (other
than the portion thereof consisting of accrued and unpaid dividends) is payable
solely out of the sale proceeds of other shares of beneficial interest of the
Company, which may include other series of Preferred Shares, and from no other
source. For purposes of the preceding sentence, "shares of beneficial interest"
means any equity securities (including Common Shares and Preferred Shares),
shares, participation or other ownership interests (however designated) and any
rights (other than debt securities convertible into or exchangeable for equity
securities) or options to purchase any of the foregoing.
(ii) Unless full cumulative dividends on all shares of Series
A Preferred shall have been or contemporaneously are authorized and paid or
authorized and a sum sufficient for the payment thereof is set apart for payment
for all past dividend periods and the then current dividend period, no shares of
Series A Preferred shall be redeemed unless all outstanding shares of Series A
Preferred are simultaneously redeemed, and the Company shall not purchase or
otherwise acquire directly or indirectly any shares of Series A Preferred
(except by exchange for shares of beneficial interest of the Company ranking
junior to the Series A Preferred as to dividends and upon liquidation);
provided, however, that the foregoing shall not prevent the purchase by the
Company of Excess Shares in order to ensure that the Company remains qualified
as a REIT for federal income tax purposes or the purchase or acquisition of
shares of Series A Preferred pursuant to a purchase or exchange offer made on
the same terms to holders of all outstanding shares of Series A Preferred.
(c) RIGHTS TO DIVIDENDS ON SHARES CALLED FOR REDEMPTION. Immediately
prior to any redemption of Series A Preferred, the Company shall pay, in cash,
any accumulated and unpaid dividends through the redemption date, unless a
redemption date falls after a Dividend Record Date and prior to the
corresponding Dividend Payment Date, in which case each holder of Series A
Preferred at the close of business on such Dividend Record Date shall be
entitled to the dividend payable on such shares on the corresponding Dividend
Payment Date notwithstanding the redemption of such shares before such Dividend
Payment Date. Except as provided above, the Company will make no payment or
allowance for unpaid dividends, whether or not in arrears, on Series A Preferred
for which a notice of redemption has been given.
(d) PROCEDURES FOR REDEMPTION.
(i) Notice of redemption will be given by publication in a
newspaper of general circulation in the City of New York, such publication to be
made once a week for two successive weeks commencing not less than thirty (30)
nor more than sixty (60) days prior to the redemption date. A similar notice
will be mailed by the Company, postage prepaid, not less than thirty (30) nor
more than sixty (60) days prior to the redemption date, addressed to the
respective holders of record of the Series A Preferred to be redeemed at their
respective addresses as they appear on the share transfer records of the
Company. No failure to give such notice or any defect thereto or in the mailing
thereof shall affect the validity of the proceedings for the redemption of
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any shares of Series A Preferred except as to the holder(s) to whom notice was
defective or not given.
(ii) In addition to any information required by law or by the
applicable rules of any exchange upon which Series A Preferred may be listed or
admitted to trading, such notice shall state: (A) the redemption date; (B) the
redemption price; (C) the number of shares of Series A Preferred to be redeemed;
(D) the place or places where the Series A Preferred is to be surrendered for
payment of the redemption price; and (E) that dividends on the shares to be
redeemed will cease to accrue on such redemption date. If less than all of the
Series A Preferred held by any holder is to be redeemed, the notice mailed to
such holder shall also specify the number of shares of Series A Preferred held
by such holder to be redeemed.
(iii) If notice of redemption of any shares of Series A
Preferred has been given and if the funds necessary for such redemption have
been set aside by the Company in trust for the benefit of the holders of any
shares of Series A Preferred so called for redemption, then from and after the
redemption date dividends shall cease to accrue on such shares of Series A
Preferred, such shares of Series A Preferred shall no longer be deemed
outstanding and all rights of the holders of such shares shall terminate, except
the right to receive the redemption price. Holders of Series A Preferred to be
redeemed shall surrender such Series A Preferred at the place designated in such
notice and, upon surrender in accordance with said notice of the certificates
for shares of Series A Preferred so redeemed (properly endorsed or assigned for
transfer, if the Company shall so require and the notice shall so state), such
shares of Series A Preferred shall be redeemed by the Company at the redemption
price plus any accrued and unpaid dividends payable upon such redemption. In
case less than all the shares of Series A Preferred represented by any such
certificate are redeemed, a new certificate or certificates representing the
unredeemed shares of Series A Preferred shall be issued without cost to the
holder thereof.
(e) APPLICATION OF ARTICLE IV. The shares of Series A Preferred are
subject to the provisions of Article IV of the Declaration of Trust, including,
without limitation, the provision for the redemption of Excess Shares. Shares
of Series A Preferred which constitute Excess Shares pursuant to the Declaration
of Trust shall be deemed to have been offered for sale to the Company, which
offer may be accepted for the period of time set forth in the Declaration of
Trust, at a redemption price per share equal to the lesser of (i) the price per
share in the transaction that created such Excess Shares (or, in the case of a
devise or gift, the Market Price (as defined in the Declaration of Trust) at the
time of such devise or gift) and (ii) the Market Price of the Series A Preferred
on the date the Company, or its designee, accepts such offer. If less than all
of the outstanding Series A Preferred is to be redeemed, the Series A Preferred
to be redeemed shall be selected pro rata (as nearly as may be practicable
without creating fractional shares) or by any other equitable method determined
by the Company.
(f) STATUS OF REDEEMED SHARES. Any shares of Series A Preferred that
shall at any time have been redeemed shall, after such redemption, have the
status of authorized but unissued Preferred Shares, without designation as to
series until such shares are once more designated as part of a particular series
by the Board of Trustees.
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(6) VOTING RIGHTS.
(a) Holders of the Series A Preferred will not have any voting
rights, except as set forth below.
(b) Whenever dividends on any shares of Series A Preferred shall be
in arrears for six or more consecutive or non-consecutive quarterly periods (a
"Preferred Dividend Default"), the holders of such shares of Series A Preferred
(voting separately as a class with all other series of Preferred Shares ranking
on a parity with the Series A Preferred as to dividends or on liquidation
("Parity Preferred") upon which like voting rights have been conferred and are
exercisable) will be entitled to vote for the election of a total of two
additional trustees of the Company (the "Preferred Shares Trustees") at a
special meeting called by the holders of record of at least twenty percent (20%)
of the outstanding shares of Series A Preferred or the holders of shares of any
other series of Parity Preferred so in arrears (unless such request is received
less than ninety (90) days before the date fixed for the next annual or special
meeting of shareholders) or at the next annual meeting of shareholders, and at
each subsequent annual meeting until all dividends accumulated on such shares of
Series A Preferred for the past dividend periods and the accrued dividend for
the then current dividend period shall have been fully paid or authorized and a
sum sufficient for the payment thereof set aside for payment in full.
(c) If and when all accumulated dividends and the accrued dividend
for the then current dividend period on the Series A Preferred shall have been
paid in full or set aside for payment in full, the holders of shares of Series A
Preferred shall be divested of the voting rights set forth in Section 6(b)
hereof (subject to revesting in the event of each and every subsequent Preferred
Dividend Default) and, if all accumulated dividends and the accrued dividend for
the then current dividend period have been paid in full or set aside for payment
in full on all other series of Parity Preferred upon which like voting rights
have been conferred and are exercisable, the term of office of each Preferred
Shares Trustee so elected shall terminate. Any Preferred Shares Trustee may be
removed at any time with or without cause by the affirmative vote of, and shall
not be removed otherwise than by the affirmative vote of, the holders of record
of the outstanding shares of the Series A Preferred when they have the voting
rights set forth in Section 6(b) and the holders of record of any other series
of Parity Preferred upon which like voting rights have been conferred and are
exercisable representing a majority of such shares of Series A Preferred and
other series of Parity Preferred, if any, entitled to be voted on the matter,
voting as a single class. So long as a Preferred Dividend Default shall
continue, any vacancy in the office of a Preferred Shares Trustee may be filled
by written consent of the Preferred Shares Trustee remaining in office, or if
none remains in office, by the affirmative vote of the holders of record of the
outstanding shares of Series A Preferred when they have the voting rights set
forth in Section 6(b) and the holders of record of any other series of Parity
Preferred upon which like voting rights have been conferred and are exercisable
representing a majority of such shares of Series A Preferred and other series of
Parity Preferred, if any, entitled to be voted on the matter. The Preferred
Shares Trustees shall each be entitled to one vote per trustee on any matter.
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(d) So long as any shares of Series A Preferred remain outstanding,
the Company shall not, without the affirmative vote of the holders of at least
two-thirds of the shares of the Series A Preferred outstanding at the time:
(i) authorize or create, or increase the authorized or issued
amount of, any class or series of shares of beneficial interest ranking prior to
the Series A Preferred with respect to payment of dividends or the distribution
of assets upon liquidation, dissolution or winding up or reclassify any
authorized shares of beneficial interest of the Company into any such shares, or
create, authorize or issue any obligation or security convertible into or
evidencing the right to purchase any such shares;
(ii) amend, alter or repeal the provisions of these Articles,
whether by merger, consolidation or otherwise, so as to materially and adversely
affect any right, preference, privilege or voting power of the Series A
Preferred or the holders thereof; or
(iii) enter into a consolidation or merger in which another
entity is the surviving entity, unless the holders of the Series A Preferred
receive a preference security the rights, preferences, privileges and voting
power of which do not differ from those of the Series A Preferred in any manner
which is material and adverse to the holder of the Series A Preferred;
provided, however, that with respect to the occurrence of any event set forth in
(ii) or (iii) above, so long as the Series A Preferred remains outstanding with
the terms thereof materially unchanged, or the terms of the securities issued in
exchange for the Series A Preferred in the consolidation or merger are not
materially different from those of the Series A Preferred, the occurrence of any
such event shall not be deemed to materially and adversely affect such rights,
preferences, privileges or voting powers of the holders of the Series A
Preferred and provided further that any increase in the amount of the authorized
Preferred Shares or the creation or issuance of any other series of Preferred
Shares, or any increase in the amount of authorized shares of such series, in
each case ranking on a parity with or junior to the Series A Preferred with
respect to payment of dividends or the distribution of assets upon liquidation,
dissolution or winding up, shall not be deemed to materially and adversely
affect such rights, preferences, privileges or voting powers.
(e) The foregoing voting provisions shall not apply if, at or prior
to the time when the act with respect to which such vote would otherwise be
required shall be effected, all outstanding shares of Series A Preferred shall
have been redeemed or called for redemption upon proper notice and sufficient
funds shall have been deposited in trust to effect such redemption.
(7) CONVERSION. The Series A Preferred is not convertible into or
exchangeable for any other property or securities of the Company, except that
the shares of Series A Preferred may be exchanged by the Company for Excess
Shares, in accordance with the Declaration of Trust.
SECOND: The shares have been classified and designated by the Board of
Trustees under the authority contained in the Declaration of Trust.
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THIRD: These Articles Supplementary have been approved by the Board of
Trustees in the manner and by the vote required by law.
FOURTH: These Articles Supplementary shall be effective at the time the
State Department of Assessments and Taxation of Maryland accepts these Articles
Supplementary for record.
FIFTH: The undersigned President of the Company acknowledges these
Articles Supplementary to be the act of the Company and, as to all matters or
facts required to be verified under oath, the undersigned President hereby
acknowledges that to the best of his knowledge, information and belief, these
matters and facts are true in all material respects and that this statement is
made under the penalties for perjury.
IN WITNESS WHEREOF, the Company has caused these Articles Supplementary to
be executed under seal in its name and on its behalf by its President and
attested to by its Secretary on this 4th day of November, 1997.
CENTERPOINT PROPERTIES TRUST
a Maryland real estate investment trust
[SEAL] /s/ John S. Gates, Jr.
------------------------------------------
John S. Gates, Jr., President
ATTEST:
/s/ Paul S. Fisher
- -------------------------------
Paul S. Fisher, Secretary
9
<PAGE>
ARTICLES SUPPLEMENTARY RELATING TO
DESIGNATION, PREFERENCES AND RIGHTS
OF JUNIOR PARTICIPATING PREFERRED SHARES, SERIES A
OF
CENTERPOINT PROPERTIES TRUST
Pursuant to Section 8-203 of Article 8 of the Annotated Code
of the State of Maryland
The undersigned officers of CenterPoint Properties Trust, a real
estate investment trust organized and existing under the laws of the State of
Maryland, DO HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of Trustees by
the Declaration of Trust of the Trust, the Board of Trustees on July 30, 1998,
adopted the following resolution creating a series of 50,000 Series Preferred
Shares designated as Junior Participating Preferred Shares, Series A:
RESOLVED, that pursuant to the authority vested in the Board of
Trustees by the Declaration of Trust and out of the Series Preferred Shares
authorized therein, the Board hereby authorizes that a series of Series
Preferred Shares of the Trust be, and it hereby is, created, and that the
designation and amount thereof and the voting powers, preferences and relative,
participating, optional and other special rights of the shares of such series,
and the qualifications, limitations or restrictions thereof are as follows:
Section 1. DESIGNATION AND AMOUNT. The shares of such series
shall be designated as "Junior Participating Preferred Shares, Series A" (the
"Series A Preferred Shares") and the number of shares constituting such series
shall be 50,000.
Section 2. DIVIDENDS AND DISTRIBUTIONS.
(A) Subject to the prior and superior rights of the holders of
any series of Preferred Shares ranking prior and superior to the
Series A Preferred Shares with respect to dividends, the holders of
Series A Preferred Shares, in preference to the holders of Common
Shares and of any other junior shares, shall be entitled to receive,
when, as and if declared by the Board of Trustees out of funds legally
available for the purpose, quarterly dividends payable in cash on the
fifteenth day of March, June, September and December in each year
(each such date being referred
<PAGE>
to herein as a "Quarterly Dividend Payment Date"), commencing on
the first Quarterly Dividend Payment Date after the first issuance
of a share or fraction of a share of Series A Preferred Shares, in
an amount per share (rounded to the nearest cent) equal to the
greater of (a) $25.00 or (b) the Adjustment Number (as defined
below) times the aggregate per share amount of all cash dividends,
and the Adjustment Number times the aggregate per share amount
(payable in kind) of all non-cash dividends or other distributions
other than a dividend payable in Common Shares or a subdivision of
the outstanding Common Shares (by reclassification or otherwise),
declared on the Common Shares since the immediately preceding
Quarterly Dividend Payment Date or, with respect to the first
Quarterly Dividend Payment Date, since the first issuance of any
share or fraction of a share of Series A Preferred Shares. The
"Adjustment Number" shall initially be 1,000. In the event the
Trust shall at any time after July 30, 1998, (i) declare or pay any
dividend on Common Shares payable in Common Shares, (ii) subdivide
the outstanding Common Shares into a greater number of shares or
(iii) combine the outstanding Common Shares into a smaller number
of shares, then in each such case the Adjustment Number in effect
immediately prior to such event shall be adjusted by multiplying
such Adjustment Number by a fraction, the numerator of which is the
number of Common Shares outstanding immediately after such event
and the denominator of which is the number of Common Shares that
were outstanding immediately prior to such event.
(B) The Trust shall declare a dividend or distribution on the
Series A Preferred Shares as provided in paragraph (A) of this Section
immediately after it declares a dividend or distribution on the Common
Shares (other than a dividend payable in Common Shares); provided
that, in the event no dividend or distribution shall have been
declared on the Common Shares during the period between any Quarterly
Dividend Payment Date and the next subsequent Quarterly Dividend
Payment Date, a dividend of $25.00 per share on the Series A Preferred
Shares shall nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding Series A Preferred Shares from the Quarterly Dividend
Payment Date next preceding the date of issue of such Series A
Preferred Shares, unless the date of issue of such shares is prior to
the record date for the first Quarterly Dividend Payment Date, in
which case dividends on such shares shall begin to accrue from the
date of issue of such shares, or unless the date of issue is a
Quarterly Dividend Payment Date or is a date after the record date for
the determination of holders of Series A Preferred Shares entitled to
receive a quarterly dividend and before such Quarterly Dividend
Payment Date, in either of which events such dividends shall begin to
accrue and be cumulative from such Quarterly Dividend Payment Date.
Accrued but unpaid dividends shall not bear interest. Dividends paid
on the Series A Preferred Shares in an amount less than the total
amount of such dividends at the time accrued and payable on such
shares shall be allocated pro rata on a share-by-share basis among all
such shares at the time outstanding. The Board of Trustees may fix a
record date
-2-
<PAGE>
for the determination of holders of Series A Preferred Shares
entitled to receive payment of a dividend or distribution declared
thereon, which record date shall be no more than 30 days prior to
the date fixed for the payment thereof.
Section 3. VOTING RIGHTS. The holders of Series A Preferred
Shares shall have the following voting rights:
(A) Each Series A Preferred Share shall entitle the holder
thereof to a number of votes equal to the Adjustment Number (as
adjusted from time to time pursuant to Section 2(A) hereof) on all
matters submitted to a vote of the shareholders of the Trust.
(B) Except as otherwise provided herein, in the Declaration of
Trust or By-Laws, the holders of Series A Preferred Shares and the
holders of Common Shares shall vote together as one class on all
matters submitted to a vote of shareholders of the Trust.
(C) (i) If at any time dividends on any Series A Preferred
Share shall be in arrears in an amount equal to six quarterly
dividends thereon, the occurrence of such contingency shall mark the
beginning of a period (herein called a "default period") that shall
extend until such time when all accrued and unpaid dividends for all
previous quarterly dividend periods and for the current quarterly
period on all Series A Preferred Shares then outstanding shall have
been declared and paid or set apart for payment. During each default
period, (1) the number of Trustees shall be increased by two,
effective as of the time of election of such Trustees as herein
provided, and (2) the holders of Series A Preferred Shares and the
holders of other Preferred Shares upon which these or like voting
rights have been conferred and are exercisable (the "Voting Preferred
Shares") with dividends in arrears equal to six quarterly dividends
thereon, voting as a class, irrespective of series, shall have the
right to elect such two Trustees.
(ii) During any default period, such voting right of the
holders of Series A Preferred Shares may be exercised initially at a
special meeting called pursuant to subparagraph (iii) of this Section
3(C) or at any annual meeting of shareholders, and thereafter at
annual meetings of shareholders, provided that such voting right
shall not be exercised unless the holders of at least one-third in
number of the Voting Preferred Shares outstanding shall be present in
person or by proxy. The absence of a quorum of the holders of Common
Shares shall not affect the exercise by the holders of Voting
Preferred Shares of such voting right.
(iii) Unless the holders of Voting Preferred Shares shall,
during an existing default period, have previously exercised their
right to elect Trustees, the Board of Trustees may order, or any
shareholder or shareholders owning in the aggregate not less than 10%
of the total number of Voting Preferred Shares outstanding,
irrespective of series, may request, the calling of a special meeting
of
-3-
<PAGE>
the holders of Voting Preferred Shares, which meeting shall
thereupon be called by the Chairman of the Board, the President, an
Executive Vice President, a Vice President or the Secretary of the
Trust. Notice of such meeting and of any annual meeting at which
holders of Voting Preferred Shares are entitled to vote pursuant to
this paragraph (C)(iii) shall be given to each holder of record of
Voting Preferred Shares by mailing a copy of such notice to him at his
last address as the same appears on the books of the Trust. Such
meeting shall be called for a time not earlier than 10 days and not
later than 60 days after such order or request or, in default of the
calling of such meeting within 60 days after such order or request,
such meeting may be called on similar notice by any shareholder or
shareholders owning in the aggregate not less than 10% of the total
number of Voting Preferred Shares outstanding. Notwithstanding the
provisions of this paragraph (C)(iii), no such special meeting shall
be called during the period within 60 days immediately preceding the
date fixed for the next annual meeting of the shareholders.
(iv) In any default period, after the holders of Voting
Preferred Shares shall have exercised their right to elect Trustees
voting as a class, (x) the Trustees so elected by the holders of
Voting Preferred Shares shall continue in office until their
successors shall have been elected by such holders or until the
expiration of the default period, and (y) any vacancy in the Board of
Trustees may be filled by vote of a majority of the remaining Trustees
theretofore elected by the holders of the class or classes of shares
which elected the Trustee whose office shall have become vacant.
References in this paragraph (C) to Trustees elected by the holders of
a particular class or classes of shares shall include Trustees elected
by such Trustees to fill vacancies as provided in clause (y) of the
foregoing sentence.
(v) Immediately upon the expiration of a default period,
(x) the right of the holders of Voting Preferred Shares as a class to
elect Trustees shall cease, (y) the term of any Trustees elected by
the holders of Voting Preferred Shares as a class shall terminate and
(z) the number of Trustees shall be such number as may be provided for
in the Declaration of Trust or By-Laws irrespective of any increase
made pursuant to the provisions of paragraph (C) of this Section 3
(such number being subject, however, to change thereafter in any
manner provided by law or in the Declaration of Trust or By-Laws).
Any vacancies in the Board of Trustees effected by the provisions of
clauses (y) and (z) in the preceding sentence may be filled by a
majority of the remaining Trustees.
(D) Except as set forth herein, holders of Series A Preferred
Shares shall have no special voting rights and their consent shall not
be required (except to the extent they are entitled to vote with
holders of Common Shares as set forth herein) for taking any corporate
action.
-4-
<PAGE>
Section 4. CERTAIN RESTRICTIONS.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Preferred Shares as provided in
Section 2 are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on Series A
Preferred Shares outstanding shall have been paid in full, the Trust
shall not:
(i) declare or pay dividends on, or make any other
distributions on, any shares ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the Series A Preferred
Shares;
(ii) declare or pay dividends on or make any other
distributions on any shares ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the
Series A Preferred Shares, except dividends paid ratably on the Series
A Preferred Shares and all such parity shares on which dividends are
payable or in arrears in proportion to the total amounts to which the
holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration any shares ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the Series A Preferred
Shares, provided that the Trust may at any time redeem, purchase or
otherwise acquire any such junior shares in exchange for any
securities of the Trust ranking junior (either as to dividends or
upon dissolution, liquidation or winding up) to the Series A
Preferred Shares; or
(iv) purchase or otherwise acquire for consideration any
Series A Preferred Shares, or any shares ranking on a parity with the
Series A Preferred Shares, except in accordance with a purchase offer
made in writing or by publication (as determined by the Board of
Trustees) to all holders of such shares upon such terms as the Board
of Trustees, after consideration of the respective annual dividend
rates and other relative rights and preferences of the respective
series and classes, shall determine in good faith will result in fair
and equitable treatment among the respective series or classes.
(B) The Trust shall not permit any subsidiary of the Trust to
purchase or otherwise acquire for consideration any the Trust unless
the Trust could, under paragraph (A) of this Section 4, purchase or
otherwise acquire such shares at such time and in such manner.
Section 5. REACQUIRED SHARES. Any Series A Preferred Shares
purchased or otherwise acquired by the Trust in any manner whatsoever shall be
retired and cancelled promptly
-5-
<PAGE>
after the acquisition thereof. All such shares shall upon their cancellation
become authorized but unissued preferred shares and may be reissued as part
of a new series of preferred shares to be created by resolution or resolutions
of the Board of Trustees, subject to the conditions and restrictions on
issuance set forth herein.
Section 6. LIQUIDATION, DISSOLUTION OR WINDING UP. Upon any
liquidation, dissolution or winding up of the Trust, no distribution shall be
made (A) to the holders of shares ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred Shares unless,
prior thereto, the holders of Series A Preferred Shares shall have received the
greater of (i) $100.00 per share, plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date of
such payment, and (ii) an aggregate amount per share, equal to the Adjustment
Number (as adjusted from time to time pursuant to Section 2(A) hereof) times the
aggregate amount to be distributed per share to holders of Common Shares, or (B)
to the holders of shares ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Preferred Shares,
except distributions made ratably on the Series A Preferred Shares and all other
such parity shares in proportion to the total amounts to which the holders of
all such shares are entitled upon such liquidation, dissolution or winding up.
Section 7. CONSOLIDATION, MERGER, ETC. In case the Trust shall
enter into any consolidation, merger, combination or other transaction in which
the Common Shares are exchanged for or changed into other shares or securities,
cash and/or any other property, then in any such case the Series A Preferred
Shares then outstanding shall at the same time be similarly exchanged or changed
in an amount per share equal to the Adjustment Number (as adjusted from time to
time pursuant to Section 2(A) hereof) times the aggregate amount of shares,
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each share of Common Shares is changed or exchanged.
Section 8. NO REDEMPTION. The Series A Preferred Shares shall not
be redeemable.
Section 9. AMENDMENT. The Declaration of Trust of the Trust shall
not be amended in any manner which would materially alter or change the powers,
preferences or special rights of the Series A Preferred Shares so as to affect
them adversely without the affirmative vote of the holders of two-thirds of the
outstanding Series A Preferred Shares, voting together as a single class.
-6-
<PAGE>
IN WITNESS WHEREOF, I have executed and subscribed this Certificate
and do affirm the foregoing as true under the penalties of perjury this 30th day
of July, 1998.
CENTERPOINT PROPERTIES TRUST
By: /s/ John S. Gates, Jr.
-----------------------------------------
Name: John S. Gates, Jr.
Title: President
Attest:
/s/ Paul S. Fisher
- --------------------------------
Paul S. Fisher, Secretary
-7-
<PAGE>
Exhibit 3.2
BY-LAWS (*)
OF
CENTERPOINT PROPERTIES TRUST
ARTICLE I
OFFICES
SECTION 1.1 MARYLAND REGISTERED OFFICE. The trust shall continuously
maintain in the State of Maryland a registered office and registered agent whose
office is identical with such registered office.
SECTION 1.2 OTHER OFFICES. The trust may have other offices within any
other state of the United States, including, without limitation, the State of
Illinois.
ARTICLE II
SHAREHOLDERS
SECTION 2.1 ANNUAL MEETING. An annual meeting of the shareholders shall
be held each year for the purpose of electing trustees and for the transaction
of such other business as may come before the meeting. The date of the annual
meeting shall be set by the board of trustees on a date following the
availability of the trust's audited financial statements of the preceding year
but in no event later than May 31.
SECTION 2.2 SPECIAL MEETINGS. Special meetings of the shareholders may
be called either by the President or the Board of Trustees. Special meetings of
shareholders shall also be called by the Secretary upon the written request of
the holders of shares entitled to cast not less than 66-2/3% of all the votes
entitled to be cast at such meeting. Such request shall state the purpose of
such meeting and the matters proposed to be acted on at such meeting. The
Secretary shall inform such shareholders of the reasonably estimated cost of
preparing and mailing notice of the meeting and, upon payment by such
shareholders to the trust of such costs, the Secretary shall give notice to each
shareholder entitled to notice of the meeting.
SECTION 2.3 PLACE OF MEETING. The board of trustees may designate any
place the place of meeting for any annual meeting or for any special meeting
called by the board of trustees. If no designation is made, or if a special
meeting be otherwise called, the place of meeting shall be at the main offices
of the trust in Chicago, Illinois.
SECTION 2.4 INFORMAL ACTION BY SHAREHOLDERS. Any action required to be
taken at a meeting of the shareholders, or any other action which may be taken
at a meeting of the shareholders, if a consent in writing, setting forth such
action, is signed by each shareholder entitled to vote on the matter and any
other shareholder entitled to notice of a meeting of the shareholders (but not
to vote thereat) has waived in writing any right to dissent from such action,
and such consent and waiver are filed with the minutes of proceedings of the
shareholders.
- ------------------------------
(*) As amended by amendments to Sections 2.2 and 3.8 and a new Section 2.15,
adopted on May 15, 1998.
<PAGE>
SECTION 2.5 NOTICE OF MEETINGS. Written notice stating the place, date
and hour of the meeting, and in the case of a special meeting, the purpose or
purposes for which the meeting is called, shall be delivered not less than ten
nor more than ninety days before the date of the meeting, or in the case of a
merger, consolidation, share exchange, dissolution or sale, lease or exchange of
assets, not less than twenty nor more than sixty days before the meeting, either
personally or by mail, by or at the direction of the president, or the board of
trustees, to each shareholder of record entitled to vote at such meeting. If
mailed, such notice shall be deemed to be delivered when deposited with the
United States Postal Service, addressed to the shareholder at his address as it
appears on the records of the trust, with postage thereon prepaid. When a
meeting is adjourned to another time or place, notice need not be given of the
adjourned meeting if the time and place thereof are announced at the meeting at
which the adjournment is taken.
SECTION 2.6 FIXING OF RECORD DATE. For the purpose of determining the
shareholders entitled to notice of or to vote at any meeting of shareholders or
any adjournment thereof, or to receive payment of any dividend, or any rights in
respect of any change, conversion or exchange of shares or for the purpose of
any other lawful action, the board of trustees of the trust may fix in advance a
record date which shall not be more than sixty days and, for a meeting of
shareholders, not less than twenty days, or in the case of a merger,
consolidation, share exchange, dissolution or sale, lease or exchange of assets,
not less than twenty days, immediately preceding the date of such meeting. If
no record date is fixed, the record date for the determination of shareholders
entitled to notice of or to vote at a meeting of shareholders shall be the date
on which notice of the meeting is mailed, and the record date for the
determination of shareholders for any other purpose shall be the date on which
the board of trustees adopts the resolution relating thereto. A determination
of shareholders of record entitled to notice of or to vote at a meeting of
shareholders shall apply to any adjournment of the meeting.
SECTION 2.7 SHAREHOLDERS' LIST. The officer or agent having charge of
the transfer books for shares of the trust shall make, within twenty days after
record date or twenty days before each meeting of shareholders, whichever is
earlier, a complete list of the shareholders entitled to vote at such meeting,
arranged in alphabetical order, showing the address of and the number of shares
registered in the name of the shareholder, which list, for a period of twenty
days prior to such meeting, shall be kept on file at the registered office of
the Trust and shall be open to inspection by any shareholder for any purpose
germane to the meeting, at any time during usual business hours. Such list
shall also be produced and kept open at the time and place of the meeting and
may be inspected by any shareholder during the whole time of the meeting. The
original share ledger or transfer book, or a duplicate thereof kept in the State
of Illinois, shall be prima facie evidence as to who are the shareholders
entitled to examine such list or share ledger or transfer book or to vote at any
meeting of shareholders.
SECTION 2.8 VOTING OF SHARES. A plurality of all the votes cast at a
meeting of shareholders duly called and at which a quorum is present shall be
sufficient to elect a trustee. Each share may be voted for as many individuals
as there are trustees to be elected and for whose election the share is entitled
to vote. No shareholder shall have the right to cumulate his votes in elections
for trustees. A majority of the votes cast at a meeting of shareholders duly
called and at which a quorum is present shall be sufficient to approve any other
matter which may properly come before the meeting, unless a greater vote is
required by statute or by the declaration of trust. Except as otherwise
provided in the declaration of trust or these by-laws, each outstanding share,
regardless of class, shall be entitled to one vote upon each matter submitted to
vote at a meeting of shareholders.
2
<PAGE>
SECTION 2.9 VOTING OF SHARES BY CERTAIN HOLDERS. Shares standing in the
name of another trust or corporation, domestic or foreign, may be voted by such
officer, agent, or proxy as the by-laws of such trust or corporation may
prescribe, or, in the absence of such provision, as the board of trustees or
directors of such trust may or corporation determine and under the law of the
state or organization of such trust or the state of incorporation of such
corporation.
(a) Shares standing in the name of a deceased person, a minor ward or
an incompetent person, may be voted by his administrator, executor, court
appointed guardian, or conservator, either in person or by proxy without a
transfer of such shares in the name of such administrator, executor, court
appointed guardian, or conservator. Shares standing in the name of a
trustee may be voted by him, either in person or by proxy.
(b) Shares standing in the name of a receiver may be voted by such
receiver, and shares held by or under the control of a receiver may be
voted by such receiver without the transfer thereof into his name if
authority so to do be contained in an appropriate order of the court by
which such receiver was appointed.
(c) A shareholder whose shares are pledged shall be entitled to vote
such shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee shall be entitled to vote the shares so
transferred.
(d) Any number of shareholders may create a voting trust for the
purpose of conferring upon a trustee or trustees the right to vote or
otherwise represent their share, for a period not to exceed ten years, by
entering into a written voting trust agreement specifying the terms and
conditions of the voting trust, and by transferring their shares to such
trustee or trustees for the purpose of the agreement. Any such trust
agreement shall not become effective until a counterpart of the agreement
is deposited with the trust at its registered office. The counterpart of
the voting trust agreement so deposited with the trust shall be subject to
the same right of examination by a shareholder of the trust, in person or
by agent or attorney, as are the books and records of the trust, and shall
be subject to examination by any holder of a beneficial interest in the
voting trust, either in person or by agent or attorney, at any reasonable
time for any proper purpose.
(e) Shareholders may provide for the voting of their shares by
signing an agreement for that purpose. A voting agreement under this
subsection is not subject to the provisions of subsection (a) above.
(f) Shares of its own stock belonging to this trust shall not be
voted, directly or indirectly, at any meeting and shall not be counted in
determining the total number of outstanding shares at any given time, but
shares of its own stock held by it in a fiduciary capacity may be voted and
shall be counted in determining the total number of outstanding shares at
any given time.
SECTION 2.10 PROXIES. Each shareholder entitled to vote at a meeting of
shareholders or to express consent or dissent to corporate action in writing
without a meeting may authorize another person or persons to act for him by
proxy by signing an appointment form and delivering it to the person so
appointed, but no such proxy shall be valid after eleven months from the date of
its execution, unless otherwise provided in the proxy.
3
<PAGE>
SECTION 2.11 QUORUM. At an annual meeting of the shareholders called for
the sole purpose of electing trustees and ratifying the selection of the trust's
independent public accountants, the holders of one-third of the outstanding
shares of the trust entitled to vote, present in person or represented by proxy,
shall constitute a quorum at such annual meeting of shareholders; provided that,
if less than one-third of the outstanding shares entitled to vote are
represented at said meeting, a majority of the shares so represented may adjourn
the meeting at any time without further notice. At any other annual meeting or
any special meeting of shareholders, the holders of a majority of the
outstanding shares of the trust entitled to vote, present in person or
represented by proxy, shall constitute a quorum at such meeting of shareholders;
provided that, if less than a majority of the outstanding shares entitled to
vote are represented at said meeting, a majority of the shares so represented
may adjourn the meeting at any time without further notice. If a quorum is
present at any meeting of the shareholders, the affirmative vote of the majority
of the shares entitled to vote represented at the meeting and entitled to vote
on the matter shall be the act of the shareholders, unless a greater vote is
required under the Declaration of Trust or Maryland law. At any adjourned
meeting at which a quorum shall be present, any business may be transacted which
might have been transacted at the original meeting. Withdrawal of shareholders
from any meeting shall not cause failure of a duly constituted quorum at that
meeting.
SECTION 2.12 INSPECTORS. At any meeting of shareholders, the chairman of
the meeting may, or upon request of any shareholder shall, appoint one or more
persons as inspectors for such meeting.
(a) Such inspectors shall ascertain and report the number of shares
represented at the meeting, based upon their determination of the validity
and effect of proxies; count all votes and report the results; and do such
other acts as are proper to conduct the election and voting with
impartiality and fairness to all the shareholders.
(b) Each report of an inspector shall be in writing and signed by him
or by a majority of them if there be more than one inspector acting at such
meeting. If there is more than one inspector, the report of a majority
shall be the report of the inspectors. The report of the inspector or
inspectors on the number of shares represented at the meeting and the
results of the voting shall be prima facie evidence thereof.
SECTION 2.13 VOTING BY BALLOT. Voting on any question or in any election
may be by voice unless the presiding officer shall order or any shareholder
shall demand that voting be by ballot.
SECTION 2.14 REPORTS TO SHAREHOLDERS. Prior to the annual meeting of
shareholders each year, the trustees shall deliver or cause to be delivered a
report of the business and operations of the trust during such fiscal year to
the shareholders, containing a balance sheet and a statement of income and
surplus of the trust, accompanied by the certification of an independent
certified public accountant, and such further information as the trustees may
determine is required pursuant to any law or regulation to which the trust is
subject. A signed copy of the annual report and the accountant's certificate
shall be filed by the trustees with the State Department of Assessments and
Taxation of Maryland, and with such other governmental agencies as may be
required by law and as the trustees may deem appropriate.
SECTION 2.15 OPT-OUT ELECTION. The provisions of Sections 3-701 through
3-709 of the Corporations and Associations Article of the Annotated Code of
Maryland shall not be applicable to the Company or its operations.
4
<PAGE>
ARTICLE III
TRUSTEES
SECTION 3.1 GENERAL POWERS. The business and affairs of the trust shall
be managed by, or under the direction of, its board of trustees.
SECTION 3.2 NUMBER, TENURE AND QUALIFICATIONS. The number of trustees
of the trust shall be not less than three (3) and not more than ten (10), as
determined from time to time by the then acting board of trustees. Each trustee
shall hold office until the next annual meeting of shareholders, thereafter,
until his successor shall have been elected. Trustees need not be residents of
Maryland or Illinois or shareholders of the trust. The number of trustees may
be increased or decreased from time to time as provided by the declaration of
trust by the amendment of this section; but no decrease shall have the effect of
shortening the term of any incumbent trustee. A trustee may resign at any time
by giving written notice to the board of trustees, its chairman, or to the
president or secretary of the trust. A resignation is effective when the notice
is given unless the notice specifies a future date. The pending vacancy may be
filled before the effective date, but the successor shall not take office until
the effective date. A majority of the number of trustees of the Board of
Trustees shall be independent (non-management) trustees of the trust.
SECTION 3.3 QUORUM. A majority of the number of trustees fixed by these
by-laws shall constitute a quorum for transaction of business at any meeting of
the board of trustees, provided that if less than a majority of such number of
trustees are present at said meeting, a majority of the trustees present may
adjourn the meeting at any time without further notice.
SECTION 3.4 MANNER OF ACTING. The act of the majority of the trustees
present at a meeting at which a quorum is present shall be the act of the board
of trustees, unless the act of a greater number is required by statute, these
by-laws, or the declaration of trust.
SECTION 3.5 REGULAR MEETINGS. A regular meeting of the board of
trustees shall be held without other notice than this By-Law, immediately after
the annual meeting of shareholders. The board of trustees may provide, by
resolution, the time and place for holding of additional regular meetings
without other notice than such resolution.
SECTION 3.6 SPECIAL MEETINGS. Special meetings of the board of trustees
may be called by or at the request of the president or any one or more trustees.
The person or persons authorized to call special meetings of the board of
trustees may fix any place as the place for holding any special meeting of the
board of trustees called by them.
SECTION 3.7 NOTICE. Notice of any special meeting shall be given at
least ten days previous thereto by written notice to each trustee at his
business address. If mailed, such notice shall be deemed to be delivered when
deposited with the United States Postal Service so addressed, with postage
thereon prepaid. If notice be given by telegram, such notice shall be deemed to
be delivered when the telegram is delivered to the telegram company. The
attendance of a trustee at any meeting shall constitute a waiver of notice of
such meeting, except where a trustee attends a meeting for the express purpose
of objecting to the transaction of any business because the meeting is not
lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the board of trustees need be
specified in the notice or waiver of notice of such meeting.
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SECTION 3.8 VACANCIES. If for any reason any or all of the trustees
cease to be trustees, such event shall not terminate the trust or affect these
By-Laws or the powers of the trustees remaining hereunder (even if fewer than
three trustees remain). Any vacancy occurring in the Board of Trustees, and any
trusteeship to be filled by reason of an increase in the number of trustees, may
be filled by (1) election to an annual meeting of shareholders, or (2) by the
remaining members of the Board of Trustees. A trustee elected by the
shareholders to fill a vacancy shall hold office for the balance of the term to
which he or she was elected. A trustee appointed to fill a vacancy shall serve
until the next meeting of shareholders at which trustees are to be elected.
SECTION 3.9 REMOVAL OF TRUSTEES. One or more of the trustees may be
removed, with or without cause, at a meeting of shareholders by the affirmative
vote of the holders of a majority of the outstanding shares then entitled to
vote at an election of trustees, except as follows:
(a) No trustee shall be removed at a meeting of shareholders unless
the notice of such meeting shall state that a purpose of the meeting is to
vote upon the removal of one or more trustees named in the notice. Only
the named trustee or trustees may be removed at such meeting.
(b) If a trustee is elected by a class or series of shares, he or she
may be removed only by the shareholders of that class or series.
In addition, one or more of the trustees may be removed, with or without cause,
by the board of trustees upon the affirmative vote of a majority of the then
acting trustees.
SECTION 3.10 COMMITTEES OF TRUSTEES. The board of trustees may, by
resolution or resolutions adopted by a majority of the number of trustees fixed
by the by-laws or otherwise, designate one or more committees, each committee to
consist of one or more of the trustees of the trust. The board may designate
one or more trustees as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of the committee. Any such
committee, to the extent provided in the resolution of the board, shall have and
may exercise all of the powers and authority of the board of trustees in the
management of the business and affairs of the trust, and may authorize the seal
of the trust to be affixed to all papers which may require it; but no such
committee shall have the power of authority in reference to amending the
declaration of trust; adopting an agreement of merger or consolidation;
recommending to the shareholders the sale, lease or exchange of all or
substantially all of the trust's property and assets; recommending to the
shareholders a dissolution of the trust or a revocation of a dissolution;
recommending to the shareholders any other action which requires shareholder
approval; amending the by-laws of the trust; declaring a dividend or authorizing
the issuance of distributions on stock; or issue stock other than pursuant to a
stock option or similar compensation plan. Such committee or committees shall
have such name or names as may be determined by the board of trustees. The
committees shall keep regular minutes of their proceedings and report the same
to the full board of trustees when required.
SECTION 3.11 ACTION WITHOUT A MEETING. Unless specifically prohibited by
the declaration of trust or these by-laws, any action required to be taken at a
meeting of the board of trustees, or any other action which may be taken at a
meeting of the board of trustees, or of any committee thereof may be taken
without a meeting if a consent in writing, setting forth the action so taken,
shall be signed by all the trustees entitled to vote with respect to the subject
matter thereof, or by all the members of such committee, as the case may be.
Any such consent signed by all the trustees or all the members of the committee
shall have the same effect as a unanimous vote.
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SECTION 3.12 COMPENSATION. The board of trustees, by the affirmative
vote of a majority of trustees then in office, and irrespective of any personal
interest of any of its members, shall have authority to establish reasonable
compensation of all trustees for services to the trust as trustees, officers, or
otherwise. By resolution of the board of trustees, the trustees may be paid
their expenses, if any, of attendance at each meeting of the board. No such
payment previously mentioned in this section shall preclude any trustee from
serving the trust in any other capacity and receiving compensation therefor.
Members of committees of the board may be allowed like compensation for
attending committee meetings.
SECTION 3.13 PRESUMPTION OF ASSENT. A trustee of the trust who is
present at a meeting of the board of trustees at which action on any corporate
matter is taken shall be conclusively presumed to have assented to the action
taken unless his dissent shall be entered in the minutes of the meeting or
unless he shall file his written dissent to such action with the person acting
as the secretary of the meeting before the adjournment thereof or shall forward
such dissent by registered mail to the secretary of the trust immediately after
the adjournment of the meeting. Such right to dissent shall not apply to a
trustee who voted in favor of such action.
SECTION 3.14 LOSS OF DEPOSITS. No trustee shall be liable for any loss
which may occur by reason of the failure of the bank, trust company, savings and
loan association or other institution with whom money or shares have been
deposited.
SECTION 3.15 SURETY BONDS. Unless required by law, no trustee shall be
obligated to give any bond or surety or other security for the performance of
any of his duties.
SECTION 3.16 RELIANCE. Each trustee, officer, employee and agent of the
trust shall, in the performance of his duties with respect to the trust, be
fully justified and protected with regard to any act or failure to act in
reliance in good faith upon the books of account or other records of the trust,
upon an opinion of counsel or upon reports made to the trust by any of its
officers or employees or consultants or by the adviser, accountants, appraisers
or other experts or consultants selected by the trustees or officers of the
trust, regardless of whether such counsel or expert may also be a trustee.
SECTION 3.17 CERTAIN RIGHTS OF TRUSTEES. The trustees shall have no
responsibility to devote their full time to the affairs of the trust and may
engage in business activities similar to or in addition to those of or relating
to the trust.
ARTICLE IV
OFFICERS
SECTION 4.1 NUMBER. The officers of the trust shall be a chairman, a
president, a secretary, a treasurer, and any number of vice presidents (who may
be designated as executive vice presidents, senior vice presidents or
non-executive vice presidents), treasurers, assistant treasurers, assistant
secretaries or other officers as may be elected by the board of trustees or, in
the case of non-executive vice presidents, appointed by the president. Any two
or more offices may be held by the same person except that for the offices of
president and vice president.
SECTION 4.2 APPOINTMENT OR ELECTION AND TERM OF OFFICE. Non-executive
vice-presidents, if any, shall be appointed by the president and shall serve at
the pleasure of the president.
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The other officers of the trust shall be elected or appointed annually by the
board of trustees at the first meeting of the board of trustees held after each
annual meeting of shareholders. If the election of officers shall not be held
at such meeting, such election shall be held as soon thereafter as conveniently
may be. Vacancies may be filled or new offices created and filled at any
meeting of the board of trustees. Each officer elected or appointed by the
Board shall hold office until his successor shall have been duly elected and
shall have qualified or until his death or until he shall resign or shall have
been removed in the manner hereinafter provided. Election or appointment of an
officer shall not of itself create contract rights.
SECTION 4.3 REMOVAL. Any officer elected or appointed by the board of
trustees may be removed by the board of trustees whenever in its judgment the
best interests of the trust would be served thereby, but such removal shall be
without prejudice to the contract rights, if any, of the person so removed.
SECTION 4.4 THE CHAIRMAN. The chairman shall be the chairman of the
board of trustees. He shall advise and counsel with the president and shall
assume such other duties as from time to time may be assigned by the board of
trustees. He shall preside at all meetings of the board of trustees and, in the
absence of the president or at the president's request, shall preside at all
meetings of the shareholders. He may execute for the trust certificates for its
shares, and any contracts, deeds, mortgages, bonds, or other instruments which
the board of trustees has authorized to be executed, and he may accomplish such
execution either under or without the seal of the trust and either individually
or with the secretary, any assistant secretary, or any other officer thereunto
authorized by the board of trustees, according to the requirements of the form
of the instrument.
SECTION 4.5 VICE CHAIRMAN. The vice chairman shall assist the chairman
in the discharge of his duties as the chairman may direct and shall perform such
other duties as from time to time may be assigned to him by the chairman or by
the board of trustees. In the absence of the chairman or in the event of his
inability or refusal to act, the vice chairman shall perform the duties of the
chairman, and when so acting, shall have all the powers of and be subject to all
the restrictions upon the chairman. Except in those instances in which the
authority to execute is expressly delegated to another officer or agent of the
trust or a different mode of execution is expressly prescribed by the board of
trustees or these by-laws, the vice chairman may execute for the trust
certificates for its shares and any contracts, deeds, mortgages, bonds or other
instruments which the board of trustees has authorized to be executed, and he
may accomplish such execution either under or without the seal of the trust and
either individually or with the secretary, any assistant secretary, or any other
officer thereunto authorized by the board of trustees, according to the
requirements of the form of the instrument.
SECTION 4.6 THE PRESIDENT. The president shall be the chief executive
officer of the trust. Subject to the direction and control of the board of
trustees, he shall be in charge of the business of the trust; he shall see that
the resolutions and directions of the board of trustees are carried into effect
except in those instances in which that responsibility is specifically assigned
to some other person by the board of trustees; and, in general, he shall
discharge all duties incident to the office of president and such other duties
as may be prescribed by the board of trustees from time to time. He shall
preside at all meetings of the shareholders and, in the absence of the chairman,
shall preside at all meetings of the board of trustees. Except in those
instances in which the authority to execute is expressly delegated to another
officer or agent of the trust or a different mode of execution is expressly
prescribed by the board of trustees or these by-laws, he may execute for the
trust certificates for its shares, and any contracts, deeds, mortgages, bonds,
or other instruments which the board of trustees has authorized to be executed,
and he may accomplish such execution either under or without the seal of the
trust and either individually or
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with the secretary, any assistant secretary, or any other officer thereunto
authorized by the board of trustees, according to the requirements of the form
of the instrument. He may vote all securities which the trust is entitled to
vote except as and to the extent such authority shall be vested in a different
officer or agent of the trust by the board of trustees.
SECTION 4.7 EXECUTIVE VICE-PRESIDENTS AND SENIOR VICE PRESIDENTS. The
executive vice-presidents and senior vice presidents, if any, shall assist the
president in the discharge of his duties as the president may direct and shall
perform such other duties as from time to time may be assigned to them by the
president or by the board of trustees. In the absence of the president or in
the event of his inability or refusal to act, the executive vice-presidents (or
in the event there be more than one executive vice president, the executive
vice-presidents in the order designated by the board of trustees, or by the
president if the board of trustees has not made such a designation, or in the
absence of any designation, then in the order of seniority of tenure as
executive vice president) shall perform the duties of the president. In the
absence or inability or refusal to act of the president and any executive vice
presidents, the senior vice presidents in the order designated by the board of
trustees, or by the president if the board of trustees has not made such a
designation, or in the absence of any designation, then in the order of
seniority of tenure as senior vice president) shall perform the duties of the
president. When so acting, the executive vice presidents or senior vice
presidents, as the case may be, shall have all the powers of and be subject to
all the restrictions upon the president. Except in those instances in which the
authority to execute is expressly delegated to another officer or agent of the
trust or a different mode of execution is expressly prescribed by the board of
trustees or these by-laws, the executive vice presidents and senior vice
presidents may execute for the trust certificates for its shares and any
contracts, deeds, mortgages, bonds or other instruments which the board of
trustees has authorized to be executed, and they may accomplish such execution
either under or without the seal of the trust and either individually or with
the secretary, any assistant secretary, or any other officer thereunto
authorized by the board of trustees, according to the requirements of the form
of the instrument.
SECTION 4.8 NON-EXECUTIVE VICE PRESIDENTS. Non-executive vice
presidents shall assist the president in the discharge of his duties as the
president may direct, but shall not, unless specifically authorized by the board
of trustees, have any authority to bind or commit the trust.
SECTION 4.9 THE TREASURER. The treasurer shall be the chief operating
officer and principal accounting and financial officer of the trust. He shall:
(a) have charge of and be responsible for the maintenance of adequate
books of account for the trust;
(b) have charge and custody of all funds and securities of the trust,
and be responsible therefore and for the receipt and disbursement thereof;
and
(c) perform all the duties incident to the office of treasurer and
such other duties as from time to time may be assigned to him by the
president or by the board of trustees.
If required by the board of trustees, the treasurer shall give a bond for
the faithful discharge of his duties in such sum and with such surety or
sureties as the board of trustees may determine.
SECTION 4.10 THE SECRETARY. The secretary shall:
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(a) record the minutes of the shareholders' and of the board of
trustees' meetings in one or more books provided for that purpose;
(b) see that all notices are duly given in accordance with the
provisions of these by-laws or as required by law;
(c) be custodian of the corporate records and of the seal of the
trust;
(d) keep a register of the post office address of each shareholder
which shall be furnished to the secretary by such shareholder;
(e) sign with the chairman, vice chairman, president, or an executive
vice-president or a senior vice president, or any other officer thereunto
authorized by the board of trustees, certificates for shares of the trust,
the issue of which shall have been authorized by the board of trustees, and
any contracts, deeds, mortgages, bonds, or other instruments which the
board of trustees has authorized to be executed, according to the
requirements of the form of the instrument, except when a different mode of
execution is expressly prescribed by the board of trustees or these
by-laws;
(f) otherwise certify that by-laws, resolutions of the shareholders
and board of trustees and committees thereof, and other documents of the
trust as true and correct copies thereof;
(g) have general charge of the share transfer books of the trust; and
(h) perform all duties incident to the office of secretary and such
other duties as from time to time may be assigned to him or her by the
president or by the board of trustees.
SECTION 4.11 ASSISTANT TREASURERS AND ASSISTANT SECRETARIES. The
assistant treasurers and assistant secretaries shall perform such duties as
shall be assigned to them by the treasurer or the secretary, respectively, or by
the president or the board of trustees. The assistant secretaries may sign with
the chairman, vice chairman, president, or an executive vice-president or senior
vice president, or any other officer thereunto authorized by the board of
trustees, certificates for shares of the trust, the issue of which shall have
been authorized by the board of trustees, and any contracts, deeds, mortgages,
bonds, or other instruments which the board of trustees has authorized to be
executed, according to the requirements of the form of the instrument, except
when a different mode of execution is expressly prescribed by the board of
trustees or these by-laws. The assistant treasurers shall respectively, if
required by the board of trustees, give bonds for the faithful discharge of
their duties in such sums and with such sureties as the board of trustees shall
determine.
SECTION 4.12 SALARIES. The salaries of the officers shall be fixed from
time to time by the board of trustees, and no officer shall be prevented from
receiving such salary by reason of the fact that he is also a trustee of the
trust.
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ARTICLE V
CONTRACTS, LOANS, CHECKS AND DEPOSITS
SECTION 5.1 CONTRACTS. The board of trustees may authorize any officer
or officers, agent or agents, to enter into any contract or execute and deliver
any instrument in the name of and on behalf of the trust, and such authority may
be general or confined to specific instances.
SECTION 5.2 LOANS. No loans shall be contracted on behalf of the trust
and no evidences of indebtedness shall be issued in its name unless authorized
by a resolution of the board of trustees. Such authority may be general or
confined to specific instances.
SECTION 5.3 CHECKS, DRAFTS, ETC. All checks, drafts or other orders for
the payment of money, notes or other evidences of indebtedness issued in the
name of the trust shall be signed by such officer or officers, agent or agents
of the trust and in such manner as shall from time to time be determined by
resolution of the board of trustees.
SECTION 5.4 DEPOSITS. All funds of the trust not otherwise employed
shall be deposited from time to time to the credit of the trust in such banks,
trust companies or other depositories as the board of trustees may select.
ARTICLE VI
CERTIFICATES FOR SHARES AND THEIR TRANSFER
SECTION 6.1 CERTIFICATES FOR SHARES. Certificates representing shares
of the trust shall be signed by the chairman, vice chairman, president or an
executive vice-president or a senior vice president or by such officer as shall
be designated by resolution of the board of trustees and by the secretary or an
assistant secretary, and shall be sealed with the seal or a facsimile of the
seal of the trust. If both of the signatures of the officers be by facsimile,
the certificate shall be countersigned by the trust's duly authorized registrar
and transfer agent. Each certificate representing shares shall be consecutively
numbered or otherwise identified, and shall also state the name of the person to
whom issued, the number and class of shares (with designation of series, if
any), the date of issue, that the trust is organized under Maryland law, and the
par value or a statement that the shares are without par value. If the trust is
authorized and does issue shares of more than one class or of series within a
class, the certificate shall also contain such information or statement as may
be required by law. The name and address of each shareholder, the number and
class of shares held and the date on which the certificates for the shares were
issued shall be entered on the books of the trust. The person in whose name
shares stand on the books of the trust shall be deemed the owner thereof for all
purposes as regard the trust.
SECTION 6.2 LOST CERTIFICATES. If a certificate representing shares has
allegedly been lost or destroyed the board of trustees may in its discretion,
except as may be required by law, direct that a new certificate be issued upon
such indemnification and other reasonable requirements as it may impose.
SECTION 6.3 TRANSFERS OF SHARES. Transfers of shares of the trust shall
be recorded on the books of the trust and, except in the case of a lost or
destroyed certificate, on surrender for cancellation of the certificate for such
shares. A certificate presented for transfer must be duly endorsed and
accompanied by proper guaranty of signature and other appropriate assurances
that the endorsement is effective.
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SECTION 6.4 RESTRICTION ON TRANSFER OF SECURITIES. A restriction on the
transfer or registration of transfer of securities of the trust may be imposed
either under the declaration of trust or by these by-laws or by agreement among
any number of security holders or among such holders and the trust. No
restriction so imposed shall be binding with respect to securities issued prior
to the adoption of the restriction unless the holders of the securities are
parties to an agreement or voted in favor of the restriction.
A restriction on the transfer or registration of transfer of securities of
the trust is permitted if, without limitation, it:
(i) requires the trust or the holders of any class of securities of
the trust to consent to any proposed transfer of the restricted securities
or to approve the proposed transferee of the restricted securities; or
(ii) prohibits the transfer of the restricted securities to designated
persons or classes of persons with designation is not manifestly
unreasonable; or
(iii) restricts transfer or registration of transfer in any other
lawful manner.
Unless noted conspicuously on the security, a restriction, even though
permitted by this section, is ineffective except against a person with actual
knowledge of the restriction.
ARTICLE VII
FISCAL YEAR
SECTION 7.1 DESIGNATION OF FISCAL YEAR. The fiscal year of the trust
shall end on December 31 of each year.
ARTICLE VIII
DIVIDENDS
SECTION 8.1 DECLARED BY TRUSTEES. The board of trustees may from time
to time declare, and the trust may pay, dividends on its outstanding shares in
the manner and upon the terms and conditions provided by law and its declaration
of trust.
ARTICLE IX
SEAL
SECTION 9.1 SEAL. The trustees may authorize the adoption of a seal by
the trust. The seal shall have inscribed thereon the name of the trust and the
year of its organization. The seal may be used by causing it or a facsimile
thereof to be impressed or affixed or in any manner reproduced.
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ARTICLE X
WAIVER OF NOTICE
SECTION 10.1 WAIVER IN LIEU OF NOTICE. Whenever any notice is required
to be given under the provisions of these by-laws or under the provisions of the
declaration of trust or under the provisions of Maryland law, a waiver thereof
in writing, signed by the person or persons entitled to such notice, whether
before or after the time stated therein, shall be deemed equivalent to the
giving of such notice. Attendance at any meeting shall constitute waiver of
notice thereof unless the person at the meeting objects to the holding of the
meeting because notice was not given.
ARTICLE XI
AMENDMENTS
SECTION 11.1 DETERMINED BY TRUSTEES. Unless reserved to the shareholders
by the declaration of trust or required by law, the by-laws of the trust may be
made, altered, amended or repealed solely by the board of trustees. The by-laws
may contain any provisions for the regulation and management of the affairs of
the trust not inconsistent with law or the declaration of trust.
ARTICLE XII
INDEMNIFICATION OF OFFICERS,
TRUSTEES, EMPLOYEES AND AGENTS
SECTION 12.1 POWER TO HOLD HARMLESS. The trust shall have the power to
indemnify any person to the full extent permitted by Maryland law in effect from
time to time. Without limiting the generality of the foregoing, the trust shall
have the power, unless limited from time to time by Maryland law, to indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the trust) by reason of the fact that he or she is or was a trustee,
officer, employee or agent of the trust, or who is or was serving at the request
of the trust as a trustee, officer, employee or agent of another trust,
partnership, joint venture, corporation or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if such person acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the trust,
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe his or her conduct was unlawful. The termination of any action, suit
or proceeding by judgment or settlement, conviction or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which he or she reasonably
believed to be in or not opposed to the best interest of the trust, or with
respect to any criminal action or proceeding, that the person had reasonable
cause to believe that his or her conduct was unlawful.
SECTION 12.2 POWER TO INDEMNIFY LITIGANT. The trust shall have power to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
trust to procure a judgment in its favor by reason of the fact that such person
is or was a trustee, officer, employee or agent of the trust, or is or was
serving at the request of the trust as a trustee, officer, employee or agent of
another trust, partnership, joint venture, corporation or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
such
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person in connection with the defense or settlement of such action or suit if
such person acted in good faith and in a manner he or she reasonably believed to
be in, or not opposed to the best interests of the trust, provided that no
indemnification shall be made in respect of any claim, issue or matter as to
which such persons shall have been adjudged to be liable for negligence or
misconduct in the performance of his or her duty to the trust, unless, and only
to the extent that the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses as the court shall deem proper.
SECTION 12.3 REIMBURSEMENT AUTHORIZED. To the extent that a trustee,
officer, employee, or agent of a trust has been successful, on the merits or
otherwise, in defense of any action, suit or proceeding referred to Sections
12.1 and 12.2 above, or in defense of any claim, issue or matter therein, such
person shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him or her in connection therewith to the
extent not inconsistent with the Maryland General Trust Law.
SECTION 12.4 DETERMINATION IF REIMBURSEMENT IS PROPER. Any
indemnification under Sections 12.1 and 12.2 above (unless ordered by court)
shall be made by the trust only as authorized in the specific case, upon a
determination that indemnification of a trustee, officer, employee or agent is
proper in the circumstances because he or she has met the applicable standard of
conduct set forth in Section 12.1 or 12.2 above. Such determination shall be
made:
(a) by the board of trustees by a majority of a quorum consisting of
trustees who were not parties to such action, suit or proceeding, or
(b) if such a quorum is not obtainable, or, even if obtainable, a
quorum of disinterested trustees so directs, by independent legal counsel
in a written opinion, or
(c) by the shareholders.
SECTION 12.5 ADVANCE OF EXPENSES. Expenses incurred in defending a civil
or criminal action, suit or proceeding may be paid by the trust in advance of
the final disposition of such action, suit or proceeding, as authorized by the
board of trustees in the specific case, upon receipt of an undertaking by or on
behalf of the trustee, officer, employee or agent to repay such amount, unless
it shall ultimately be determined that he or she is entitled to be indemnified
by the trust as authorized in this Article.
SECTION 12.6 NON-EXCLUSIVITY. The indemnification provided by this
article shall not be deemed exclusive of any other rights to which those
indemnified may be entitled under any contract, agreement, vote of shareholders
or disinterested trustees, or otherwise, both as to action in his or her
official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a trustee,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
SECTION 12.7 RIGHT TO ACQUIRE INSURANCE. The trust shall have power to
purchase and maintain insurance on behalf of any person who is or was a trustee,
officer, employee or agent of the trust, or is or was serving at the request of
the trust, as a trustee, officer, employee or agent of another trust,
partnership, joint venture, trust or other enterprise, against any liability
asserted against such person and incurred by such person in any such capacity,
or arising out of his status as such, whether or not the
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trust would have the power to indemnify him or her against such liability under
the provisions of this Article.
SECTION 12.8 NOTICE OF SHAREHOLDERS. If a trust has paid indemnity or
has advanced expenses to a trustee, officer, employee or agent, the trust shall
report the indemnification or advance in writing to the shareholders with or
before the notice of the next shareholders' meeting.
SECTION 12.9 "TRUST;" DEFINITION. For purposes of this Article,
references to "the Trust" shall include, in addition to the surviving
corporation or trust, any merging corporation or trust (including any
corporation or trust having merged with a merging corporation or trust) absorbed
in a merger which, if its separate existence had continued, would have had the
power and authority to indemnify its trustees, officers, and employees or
agents, so that any person who was a trustee, officer, employee or agent of such
merging corporation or trust, or was serving at the request of such merging
trust as a trustee, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under the provisions of this Article with respect to the surviving
corporation or trust as such person would have with respect to such merging
corporation or trust if its separate existence had continued.
SECTION 12.10 MISCELLANEOUS DEFINITIONS. For purposes of this Article,
references to "other enterprises" shall include employee benefit plans;
reference to "fines" shall include any excise taxes assessed on a person with
respect to an employee benefit plan; and references to "serving at the request
of the trust" shall include any services as a trustee, officer, employee or
agent of the trust which imposes duties on, or involves services by such
trustee, officer, employee, or agent with respect to an employee benefit plan,
its participants, or beneficiaries. A person who acted in good faith and in a
manner he or she reasonably believed to be in the best interests of the
participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner "not opposed to the best interest of the trust" as
referred to in this Article.
ARTICLE XIII
REPAYMENT OF DISALLOWED DEDUCTION
SECTION 13.1 FULL REIMBURSEMENT BY OFFICERS. Any payments made to an
officer of the trust such as salary, commission, bonus, interest, rent, medical
reimbursement or entertainment expense incurred by him which, for Federal income
tax purposes, shall be disallowed in whole or in part as a deductible expense by
the Internal Revenue Service, shall be reimbursed by such officer to the trust
to the full extent of such disallowance.
SECTION 13.2 SECURITY FOR REPAYMENT. It shall be the duty of the
trustees, as a board, to enforce payment of such amount disallowed. In lieu of
payment by the officer, subject to the determination of the trustees,
proportionate amounts may be withheld from his future compensation payments
until the amount owed to the trust has been recovered.
15
<PAGE>
Exhibit 4.1
COMMON SHARES
COMMON SHARES Par Value $.001
Par Value $.001
- ---------- --------------
NUMBER (Logo) CENTERPOINT SHARES
PROPERTIES-Registered Trademark-
WHERE INDUSTRY GROWS
CP
- ---------- --------------
CENTERPOINT PROPERTIES TRUST Organized under the laws of the
State of Maryland
THIS CERTIFIES THAT CUSIP
IS THE OWNER OF
FULLY PAID AND NONASSESSABLE COMMON SHARES OF BENEFICIAL INTEREST OF
CENTERPOINT PROPERTIES TRUST TRANSFERABLE ON THE BOOKS OF THE TRUST
IN PERSON OR BY DULY AUTHORIZED ATTORNEY ON THE SURRENDER OF THIS
CERTIFICATE PROPERLY ENDORSED. THIS CERTIFICATE AND THE SHARES
REPRESENTED HEREBY ARE ISSUED AND SHALL BE HELD SUBJECT TO ALL OF
THE PROVISIONS OF THE DECLARATION OF TRUST OF THE TRUST, AS THE SAME
MAY BE AMENDED. THIS CERTIFICATE IS NOT VALID UNLESS COUNTERSIGNED
AND REGISTERED BY THE TRANSFER AGENT AND REGISTRAR.
WITNESS THE FACSIMILE SEAL OF THE TRUST AND THE FACSIMILE
SIGNATURES OF ITS DULY AUTHORIZED OFFICERS.
DATED:
(Trust Seal)
Secretary President
Countersigned and Registered.
FIRST CHICAGO TRUST COMPANY OF NEW YORK
Transfer Agent and Registrar
Authorized Signature
<PAGE>
CENTERPOINT PROPERTIES TRUST
The securities represented by this certificate are subject to restrictions on
transfer for the purpose of the Trust's maintenance of its status as a real
estate investment trust under the Internal Revenue Code of 1986, as amended.
Except as otherwise provided pursuant to the Declaration of Trust of the Trust,
no person may Beneficially Own Common Shares and/or Preferred Shares in excess
of 9.8% (or such greater percentage as may be determined by the Trustees of the
Trust of the number or value of the outstanding Equity Shares of the Trust
(unless such person is an Existing Holder). Any Person who attempts or proposes
to Beneficially Own Common Shares and/or Preferred Shares in excess of the
above limitation must notify the Trust in writing at least 15 days prior to such
proposed or attempted transfer. All capitalized terms in this legend have the
meanings defined in the Declaration of Trust of the Trust, a copy of which,
including the restrictions on transfer, will be sent without charge to each
shareholder who so requests. If the restrictions on transfer are violated, the
securities represented hereby will be designated and treated as shares of Excess
Shares which will be held in trust by the Trust.
This certificate also evidences and entitles the holder hereof to certain Rights
as set forth in a Rights Agreement between CenterPoint Properties Trust and
First Chicago Trust Company of New York as Rights Agent, dated as of July 30,
1998 (the "Rights Agreement"), the terms of which are hereby incorporated herein
by reference and a copy of which is on file at the principal executive offices
of CenterPoint Properties Trust. Under certain circumstances, as set forth in
the Rights Agreement, such Rights will be evidenced by separate certificates and
will no longer be evidenced by this certificate. CenterPoint Properties Trust
will mail to the holder of this certificate a copy of the Rights Agreement
without charge after receipt of a written request therefor. Under certain
circumstances, Rights that were, are or become beneficially owned by Acquiring
Persons or their Associates or Affiliates (as such terms are defined in the
Rights Agreement) may become null and void and the holder of any of such Rights
(including any subsequent holder) shall not have any right to exercise such
Rights.
ON WRITTEN REQUEST TO THE TRANSFER AGENT, THE TRUST WILL FURNISH WITHOUT CHARGE
TO ANY SHAREHOLDER A COPY OF THE DECLARATION OF TRUST OF THE TRUST, AS AMENDED,
INCLUDING THE RESTRICTIONS ON OWNERSHIP AND TRANSFER. IN ADDITION, THE TRUST
WILL FURNISH WITHOUT CHARGE TO ANY SHAREHOLDER, ON WRITTEN REQUEST TO THE
TRANSFER AGENT, A FULL STATEMENT OF (1) THE DESIGNATIONS AND PREFERENCES,
CONVERSION AND OTHER RIGHTS, VOTING POWERS, RESTRICTIONS, LIMITATIONS AS TO
DIVIDENDS, QUALIFICATIONS, AND TERMS AND CONDITIONS OF REDEMPTION OF THE SHARES
OF EACH CLASS WHICH THE TRUST IS AUTHORIZED TO ISSUE AND (2) THE AUTHORITY OF
THE TRUSTEES TO SET THE RELATIVE RIGHTS TO ISSUE ANY PREFERRED OR SPECIAL CLASS
IN SERIES, THE DIFFERENCES IN THE RELATIVE RIGHTS AND PREFERENCES BETWEEN THE
SHARES OF EACH SERIES TO THE EXTENT THEY HAVE BEEN SET AND THE AUTHORITY OF THE
TRUSTEES TO SET THE RELATIVE RIGHTS AND PREFERENCES OF SUBSEQUENT SERIES.
The following abbreviations, when used in the inscription on the face of the
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM -- as tenants in common UNIF GIFT MIN ACT ______ Custodian_____________
TEN ENT -- as tenants by the entireties (Cust) (Minor)
JN TEN -- as joint tenants with right of survivorship under Uniform Gifts to Minors
and not as tenants in common Act
</TABLE>
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, ___________________________________, HEREBY SELL,
ASSIGN AND TRANSFER UNTO
(PLEASE INSERT U.S. SOCIAL SECURITY NUMBER OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE.)
- ---------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address, including zip code of
assignee
- --------------------------------------------------------------------------------
Common Shares of beneficial interest represented by the within Certificate, and
so hereby irrevocably constitute and appoint
Attorney,
- ----------------------------------------------------------------------
to transfer the Shares on the books of the within-named Trust, with full power
of substitution in the premises.
Dated: Signature:
------------------------- -----------------------------------
NOTE: The signature to this Assignment must
correspond with the name as written upon the
face of this Certificate in every particular,
without alteration or enlargement or any
change whatever.
<PAGE>
Exhibit 10.54
April 3, 1998
Davis Series, Inc.
Selected American Shares, Inc.
c/o Davis Selected Advisers, L.P.
P.O. Box 1688
124 E. Marcy Street
Santa Fe, New Mexico 87501
RE: PRIVATE PLACEMENT OF CENTERPOINT COMMON SHARES
Gentlemen:
The following confirms the terms of your acquisition of Common Shares of
Beneficial Interest, par value $.001 per share (the "Common Shares"), of
CenterPoint Properties Trust, a Maryland real estate investment trust (the
"Company").
1. PURCHASE AND SALE OF COMMON SHARES. On the Closing Date (as defined
below), you agree to purchase, and the Company agrees to issue and sell, 370,000
Common Shares in the names and denominations set forth on Exhibit A hereto (the
"Securities"), at $33-3/8 per share, for an aggregate purchase price of
$12,348,750. Payment shall be made by wire transfer in immediately available
funds to the account specified by the Company.
2. CLOSING. The Closing of the transactions contemplated herein shall
occur on April 8, 1998 (the "Closing Date"). Delivery of certificates
evidencing the Securities shall be made at the offices of State Street Bank and
Trust Co., New York, New York on the Closing Date.
3. PURCHASER REPRESENTATIONS AND WARRANTIES. In purchasing the
Securities, you represent and warrant that (i) the Securities are being acquired
for your own account, not as a nominee or agent for any other party, and not
with a view to the resale or distribution of any part thereof, (ii) you have
such knowledge and experience in financial or business matters that you are
capable of evaluating the merits and risks of an investment in the Securities
and can bear the economic risk of the investment, (iii) you are an "accredited
investor" within the meaning of Rule 501 of the Rules and Regulations
promulgated under the Securities Act of 1933, as amended (the "Act"), (iv) the
Securities being acquired hereunder are "restricted securities" under federal
securities laws inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under such
<PAGE>
Davis Series, Inc.
Selected American Shares, Inc.
c/o Davis Selected Advisers, L.P.
April 3, 1998
Page 2
laws and applicable regulations such securities may be resold without
registration under the Act only in certain limited circumstances, and (v) you
are familiar with Rule 144 of the Act and understand the resale limitations
imposed thereby and by the Act.
4. LEGEND. It is understood that the certificates evidencing the
Securities may bear one or all of the following legends:
(a) "These securities have not been registered under the Securities Act of
1933, as amended (the "Act"), and have been issued pursuant to exemptions under
the Act and under applicable state securities laws. These securities may not be
sold, offered for sale, pledged or hypothecated in the absence of a registration
statement in effect with respect to the securities under the Act or an opinion
of counsel satisfactory to the Company that such registration is not required
under the Act or under applicable state securities laws or unless sold pursuant
to and in compliance with Rule 144 of the Act." The foregoing legend shall be
removed from any such certificate at the request of the holder thereof at such
time as the shares represented thereby become eligible for resale pursuant to
Rule 144(k).
(b) Any legend required by applicable state securities laws.
(c) Any legend required under the Company's Declaration of Trust.
Please confirm your agreement with the foregoing terms by signing a copy of this
letter and returning it to my attention.
Sincerely yours,
/s/ Rockford O. Kottka
Rockford O. Kottka
Senior Vice President
<PAGE>
Davis Series, Inc.
Selected American Shares, Inc.
c/o Davis Selected Advisers, L.P.
April 3, 1998
Page 3
ACCEPTED AND AGREED TO THIS 8TH DAY OF APRIL, 1998.
DAVIS SERIES, INC.
By: /s/ S. Reed
-------------------------------
Its:
SELECTED AMERICAN SHARES, INC.
By: /s/ S. Reed
-------------------------------
Its:
<PAGE>
EXHIBIT A
<TABLE>
<CAPTION>
Name of Purchaser Number of Common Shares
----------------- -----------------------
<S> <C>
Davis Real Estate Fund, an authorized
portfolio of Davis Series, Inc. 300,000
Selected American Shares, Inc. 70,000
</TABLE>
<PAGE>
Exhibit 10.55
CENTERPOINT PROPERTIES TRUST
AMENDED AND RESTATED 1993 STOCK OPTION PLAN
This Amended and Restated 1993 Stock Option Plan amends and restates the
CenterPoint Properties Corporation 1993 Stock Option Plan as amended by the
First Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment
and the Fifth Amendment.
ARTICLE 1
PRELIMINARY MATTERS
1.1 PURPOSE. The purpose of this Stock Option Plan (the "Plan") is to
provide additional incentive to certain individuals who are making and
continue to make substantial contributions to the success of CenterPoint
Properties Trust by providing them with an opportunity to acquire or
increase their proprietary interest in CenterPoint Properties Trust
through the grant and exercise of Incentive Stock Options and/or
Nonqualified Options to purchase CenterPoint Properties Trust common
shares ("Common Shares"). It is the judgment of the Board of Trustees
of CenterPoint Properties Trust that the acquisition of a proprietary
interest in CenterPoint Properties Trust by Employees and Independent
Trustees will increase their personal interest in its growth and
progress, thereby promoting the interests of CenterPoint Properties
Trust.
1.2 NAME. The name of the Plan shall be the "CenterPoint Properties Trust
Amended and Restated 1993 Stock Option Plan."
1.3 TYPE OF PLAN. Options granted under the Plan may be designated as
Incentive Stock Options or as Nonqualified Options. It is intended that
Incentive Stock Options will qualify as incentive stock options under
section 422 of the Internal Revenue Code of 1986, as amended, and the
terms of the Plan shall be interpreted in accordance with this
intention.
ARTICLE 2
DEFINITIONS
Capitalized terms used throughout this Plan Document shall have the meanings set
out in this Article 2, except as otherwise expressly provided in this Plan
Document or where the context clearly indicates otherwise.
2.1 BOARD means the Board of Trustees of CenterPoint Properties Trust.
2.2 CODE means the Internal Revenue Code of 1986, as amended, and
corresponding provisions of any subsequent law.
<PAGE>
2.3 COMMITTEE means the committee described in Section 3.1.
2.4 COMMON SHARES means the common shares of CenterPoint Properties Trust.
2.5 COMPANY means CenterPoint Properties Trust.
2.6 EMPLOYEE means an individual employed by and receiving compensation from
CenterPoint Properties Trust or a Subsidiary.
2.7 FAIR MARKET VALUE means the average of the closing prices of the sales
of Common Shares on all securities exchanges on which the Common Shares
may at the time be listed.
2.8 GRANT DATE means the date on which the Committee grants a particular
Option.
2.9 GRANTEE means the individual to whom an Option is granted.
2.10 HOLDER means the Grantee of an Option or other person entitled to
exercise the Option under the terms hereof.
2.11 INCENTIVE STOCK OPTION means an Option designated as an incentive stock
option under section 422 of the Code.
2.12 INDEPENDENT TRUSTEE means a member of the Board who is not also an
officer or Employee of the Company or any Subsidiary.
2.13 MAXIMUM OPTION PERIOD means the period beginning on the Grant Date and
ending on the day prior to the tenth anniversary of the Grant Date or,
in the case of an Incentive Stock Option granted to a Ten Percent
Shareholder, the day prior to the fifth anniversary of the Grant Date.
2.14 MINIMUM OPTION PRICE means
(a) in the case of an Incentive Stock Option granted to a Ten Percent
Shareholder, 110 percent of the Fair Market Value of the Common
Stock that may be purchased pursuant to such Option, determined
as of the date the Option was granted; and
(b) in the case of an Incentive Stock Option granted to any other
Employee or a Nonqualifed Option granted to an Employee or
Independent Trustee, 100 percent of the Fair Market Value of the
Common Stock that may be purchased pursuant to such Option,
determined as of the date the Option was granted.
2
<PAGE>
2.15 NONQUALIFIED OPTION means an Option not designated as an incentive stock
option under section 422 of the Code.
2.16 OPTION means an option granted pursuant to this Plan.
2.17 OPTION AGREEMENT means a written instrument evidencing an Option.
2.18 OPTION PERIOD means the period beginning on the Grant Date and ending on
the date set by the Committee, provided, however, that such period shall
not exceed the Maximum Option Period.
2.19 OPTION PRICE means the price at which Common Shares may be purchased
pursuant to an Option.
2.20 PARENT means a parent corporation as defined in section 424(e) of the
Code (which provides generally for ownership of 50 percent or more of
the total combined voting power of all classes of stock).
2.21 RESERVED SHARES means the shares authorized for issuance under the Plan
pursuant to Section 4.1, adjusted as provided in Section 4.2.
2.22 SUBSIDIARY means a subsidiary corporation as defined in section 424(f)
of the Code (which provides generally for ownership of 50 percent or
more of the total combined voting power of all classes of stock).
2.23 TEN PERCENT SHAREHOLDER means a person who, at the time an Option is
granted, owns stock possessing more than 10 percent of the total
combined voting power of all classes of shares of beneficial interest in
CenterPoint Properties Trust or of a Parent or Subsidiary.
ARTICLE 3
ADMINISTRATION
3.1 ADMINISTRATION BY THE COMMITTEE. The Plan shall be administered by the
Committee, and membership of the Committee shall be restricted to
Independent Trustees.
3
<PAGE>
3.2 POWERS. The Committee shall have authority, in its discretion, to: (i)
determine the Employees (from among the class of Employees eligible to
receive Options) to whom Options shall be granted; (ii) determine the
time or times at which Options shall be granted; (iii) determine the
Option Price, which price shall not be less than the Minimum Option
Price; (iv) determine whether Options shall be Incentive Stock Options
or Nonqualified Options; (v) determine the form in which the Option
Price may be paid (e.g., in the form of cash, promissory notes payable
to the Company, the surrender to the Company of Common Shares currently
owned by the Employee or any combination of the foregoing); (vi)
determine the Option Period (provided that no Option Period may be
longer than the Maximum Option Period); (vii) determine (subject to
Article 7) the time or times when each Option shall become exercisable
and the duration of the exercise period; and (viii) interpret the
provisions of the Plan. All decisions made by the Committee regarding
the Plan are final and conclusive.
ARTICLE 4
SHARES SUBJECT TO PLAN
4.1 LIMITATION. With respect to calendar year 1998, the maximum number of
Common Shares that may be issued pursuant to Options granted under the
Plan will be the total of (i) ten (10%) percent of the number of Common
Shares outstanding on May 1, 1998 (rounded downward if necessary to
eliminate fractional shares) minus (ii) the number of Common Shares
under Options which were granted prior to May 1, 1998 plus (iii) the
number of Common Shares with respect to which previously granted Options
have expired. Thereafter, the maximum number of Common Shares that may
be issued pursuant to Options granted under the Plan will be the total
of (i) ten (10%) percent of the number of Common Shares outstanding on
the last day of the preceding calendar year (rounded downward if
necessary to eliminate fractional shares) minus (ii) the number of
Common Shares under Options which were granted prior to the last day of
the preceding calendar year plus (iii) the number of Common Shares with
respect to which previously granted Options have expired. For purposes
of calculating the number of outstanding Common Shares, all classes of
securities that are convertible presently or in the future into Common
Shares are deemed to be outstanding Common Shares equal to the number of
Common Shares into which such securities are convertible, and no
subsequent reduction in the number of outstanding Common Shares (other
than as a result of a reverse stock split or similar recapitalization)
will reduce the number of Common Shares previously made available for
option grants under the Plan. In no event may the total number of
Options issued as Incentive Stock Options under the Plan plus the total
number of Common Shares issued upon the exercise of Incentive Stock
Options under the Plan exceed 3,000,000. No more than 250,000 Common
Shares may be granted to any
4
<PAGE>
one individual in any calendar year. The maximum aggregate number of
shares that may be issued under this Plan shall be subject to adjustment
as provided in Section 8.1.
4.2 ADJUSTMENTS. The number of Reserved Shares available to the Plan shall
be reduced upon the grant of an Option by the number of shares that may
be purchased pursuant to such Option and shall be increased by the
number of shares not purchased under Options which have expired or have
been terminated or canceled.
ARTICLE 5
PARTICIPATION
5.1 ELIGIBLE EMPLOYEES. Every member of the Board, and every officer of the
Company or any Subsidiary or other employee of the Company or any
Subsidiary who has been employed by the Company or any Subsidiary for at
least one year, as the Committee in its sole discretion designates, is
eligible to participate in the Plan. The Committee's designation of a
person as a participant in any year does not require the Committee to
designate that person to receive an award under the Plan in any other
year or, if so designated, to receive the same award as any other
participant in any year. The Committee may consider such factors as it
deems pertinent in selecting participants and in determining the amount
of their awards, including without limitation: (i) the financial
condition of CenterPoint Properties Trust or its Subsidiaries;
(ii) expected profits for the current or future years; (iii) the
contributions of an eligible employee to the profitability and success
of CenterPoint Properties Trust or its Subsidiaries; and (iv) the
adequacy of the eligible employee's other compensation. The Committee,
in its discretion, may grant Options to an employee, even though stock,
stock options, stock appreciation rights, or other benefits previously
were granted to such employee under this or another plan of CenterPoint
Properties Trust or any Subsidiary, whether or not the previously
granted benefits have been fully exercised. A person who has
participated in another benefit plan of CenterPoint Properties Trust may
also participate in the Plan.
5.2 NO RIGHT OF EMPLOYMENT. Nothing in the Plan or in any Option shall
confer any right on an employee to continue in the employ of CenterPoint
Properties Trust or shall interfere in any way with the right of
CenterPoint Properties Trust to terminate such employee's employment at
any time.
5.3 FORMULA GRANTS FOR INDEPENDENT TRUSTEES. Notwithstanding any provision
of this Plan to the contrary, each Independent Trustee shall receive an
Option for 3,000 shares with an Option Price equal to Fair Market Value
at the time the Option is issued upon election to the Board and an
Option for 3,000 shares with an Option Price equal to Fair Market Value
at the time the Option is issued upon each re-election of such
Independent Trustee to the
5
<PAGE>
Board. Independent Trustees shall not be eligible to receive any other
options under the Plan.
ARTICLE 6
OPTION AGREEMENTS
6.1 WRITTEN AGREEMENT. An Option shall be evidenced by an Option Agreement
specifying the number of shares of Common Stock that may be purchased by
its exercise, the Option Price, the Option Period, and the times at
which the Option may be exercised, and such other terms as the Committee
may specify in accordance with Section 3.2.
6.2 OPTION PRICE. The Option Price shall be determined by the Committee but
in no event shall the Option Price be less than the Minimum Option
Price.
6.3 TRANSFER OF OPTION. An Option shall not be transferable other than by
will or the laws of descent and distribution. During the Grantee's
lifetime, an Option shall be exercisable only by the Grantee, except as
otherwise provided herein. The Committee shall permit the transfer of
the Option, on the Grantee's death, to the Grantee's estate and shall
permit the exercise of the Option, during the Grantee's lifetime, by the
Grantee's guardian or legal representative.
6.4 OTHER TERMS. Each Option agreement shall contain such other terms and
conditions consistent with the Plan as the Committee shall determine.
ARTICLE 7
EXERCISE OF OPTIONS
7.1 EXERCISABILITY. Each Option shall be exercisable only during the Option
Period and shall be exercisable at such times as may be determined by
the Committee and specified in the Option Agreement.
7.2 TERMINATION OF EMPLOYMENT
(a) RETIREMENT. In the case of retirement of the Grantee on or after
the date the Grantee attained age 65, any Option that is not
exercisable on the date of retirement shall expire immediately.
The Option Period for any Option that is exercisable on the date
of retirement shall terminate on the date that is three months
after the date of retirement, or on the otherwise applicable
termination date, whichever is sooner.
6
<PAGE>
(b) DISABILITY. In the case of termination of employment of the
Grantee due to total and permanent disability, any Option that is
not exercisable on the date of such termination shall expire
immediately. The Option Period for any Option that is
exercisable on the date of such termination shall terminate on
the date that is six months after the date of such termination,
or on the otherwise applicable termination date, whichever is
sooner.
(c) DEATH. In the case of death of the Grantee, any Option that is
not exercisable on the date of death shall expire immediately.
The Option Period for any Option that is exercisable on the date
of death shall terminate on the date that is one year after the
date of death, or on the otherwise applicable termination date,
whichever is sooner.
(d) OTHER TERMINATION OF EMPLOYMENT. If the Grantee ceases to be
employed by CenterPoint Properties Trust or a Subsidiary for any
reason other than death, disability or retirement on or after
attaining age 65, all Options held by the Grantee shall lapse at
the close of business on the Grantee's last day of employment.
7.3 NOTICE OF EXERCISE. A person electing to exercise an option shall give
written notice, in such form as the Committee may require, of such
election to the Secretary of CenterPoint Properties Trust.
7.4 PAYMENT. Notice of exercise shall be accompanied by tender of the full
purchase price for Common Shares for which the election is made. Such
payment shall be made in cash or current funds, or in such other form as
the Committee in its discretion permits (including payment in Common
Shares at their Fair Market Value or delivery of a promissory note);
provided, however, that in connection with the exercise of an Incentive
Stock Option the Committee shall not permit payment of the purchase
price in any form of payment that was not permissible under this Plan at
the time such Option was granted.
7.5 PARTIAL EXERCISE. An Option may be exercised in whole or in part
(subject to the terms of the Option Agreement) provided that not fewer
than 100 shares may be purchased pursuant to a single notice of exercise
unless such notice pertains to the entire number of shares then covered
by the Option.
7.6 VESTING UPON A CHANGE OF CONTROL. Notwithstanding anything to the
contrary contained in any Stock Option Agreement, all Options heretofore
or hereafter granted pursuant to the Plan which have not previously
become exercisable shall become exercisable upon the occurrence of a
Change of Control (as defined below).
As used herein, "Change of Control" means the occurrence of any of the
following events:
7
<PAGE>
(A) Any individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") (a "Person") acquires beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of
twenty percent (20%) or more of the then outstanding voting securities
of the Company; provided, however, that the following acquisitions shall
not constitute a Change of Control: (i) any acquisition directly from
the Company (excluding an acquisition by virtue of the exercise of a
conversion rights), (ii) any acquisition by the Company or (iii) any
acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company; or
(B) Individuals who, as of the date hereof, constitute the Board
of Trustees of the Company (the "Incumbent Board") cease for any reason
to constitute at least a majority of the Board of Trustees of the
Company; provided, however, that any individual becoming a trustee
subsequent to the date hereof whose nomination for election by the
Company's shareholders was approved by a vote of at least a majority of
the trustees then comprising the Incumbent Board shall be considered as
though such individual were a member of the Incumbent Board, unless such
individual's initial assumption of office occurs as a result of either
an actual or threatened election contest (as such terms are used in Rule
14a-11 of Regulation 14A promulgated under the Exchange Act) or other
actual or threatened solicitation of proxies or consents by or on behalf
of a person other than the Board of Trustees; or
(C) The shareholders of the Company approve a reorganization,
merger or consolidation, unless, following such reorganization, merger
or consolidation, (i) more than sixty percent (60%) of the then
outstanding shares of common shares of the entity resulting from such
reorganization, merger or consolidation and the combined voting power of
the then outstanding voting securities of such entity entitled to vote
generally in the election of directors or trustees, as the case may be,
is then beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the
beneficial owners of the outstanding Common Shares of the Company
immediately prior to such reorganization, merger or consolidation in
substantially the same proportions as their ownership, immediately prior
to such reorganization, merger or consolidation, of the outstanding
Common Shares of the Company, (ii) no Person (excluding the Company, any
employee benefit plan or related trust of the Company or such
corporation resulting from such reorganization, merger or consolidation
and any Person beneficially owning, immediately prior to such
reorganization, merger or consolidation, directly or indirectly, twenty
percent (20%) or more of the Common Shares of the Company) beneficially
owns, directly or indirectly, twenty percent (20%) or more of the then
outstanding shares of common stock of the entity resulting from such
reorganization, merger or consolidation and (iii) at least a majority of
the members of the board of directors or trustees, as the case may be,
of the entity resulting from such
8
<PAGE>
reorganization, merger or consolidation were members of the Incumbent
Board at the time of the execution of the initial agreement providing
for such reorganization, merger or consolidation; or
(D) The shareholders of the Company approve (i) a complete
liquidation or dissolution of the Company or (ii) the sale or other
disposition of all or substantially all of the assets of the Company.
Notwithstanding anything contained in this Plan to the contrary, if a
Grantee's employment is terminated before a "Change of Control" as
defined in this Section 7.6 and the Grantee reasonably demonstrates that
such termination was at the request of a third party who has indicated
an intention or taken steps reasonably calculated to effect a Change of
Control and who effectuates a Change of Control, then for all purposes
of this Plan, the date of a Change of Control with respect to such
Grantee shall mean the date immediately prior to the date of such
termination of the Grantee's employment.
ARTICLE 8
CHANGES IN CAPITALIZATION
8.1 ADJUSTMENT PROVISIONS
(a) In the event that:
(i) The outstanding Common Shares are exchanged, in
connection with a merger or consolidation of the Company or a sale
by the Company of all or a part of its assets, for a different
number or class of shares of stock or other securities of
CenterPoint Properties Trust or for shares of stock or other
securities of any other corporation;
(ii) A recapitalization, split-up or combination of Common
Shares is effected;
(iii) New, different or additional shares or other securities
of CenterPoint Properties Trust or of another corporation are
received by the holders of Common Shares, in respect of their
ownership of Common Shares; or
(iv) Any stock dividend is made to the holders of Common
Shares;
(b) Then the Committee shall make the appropriate adjustment to:
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(i) The number and class of shares or other securities that
may be issued pursuant to exercise of Options;
(ii) The purchase price to be paid per share under outstanding
Options, and
(iii) The number of shares covered by each outstanding Option.
8.2 DISSOLUTION. Upon the dissolution of CenterPoint Properties Trust, the
Plan shall terminate and all Options previously granted shall lapse on
the date of such termination.
ARTICLE 9
MISCELLANEOUS PROVISIONS
9.1 TAX WITHHOLDING. CenterPoint Properties Trust, if necessary or
desirable, may pay or withhold the amount of any tax attributable to any
shares deliverable under this Plan, and CenterPoint Properties Trust may
defer making delivery until it is indemnified to its satisfaction for
that tax.
9.2 COMPLIANCE WITH LAW. Options are exercisable, and shares can be
delivered under this Plan, only in compliance with all applicable
federal and state laws and regulations, including without limitation
state and federal securities laws, and the rules of all stock exchanges
on which the Common Shares are listed at any time. Options may not be
exercised and shares may not be issued under this Plan until the Company
has obtained the consent or approval of every regulatory body, federal
or state, having jurisdiction over such matters as the Committee deems
advisable. Each person or estate that acquired the right to exercise an
Option by bequest or inheritance may be required by the Committee to
furnish reasonable evidence of ownership of the Option as a condition to
the exercise of the Option. In addition, the Committee may require such
consents and releases of taxing authorities as the Committee deems
advisable.
9.3 STOCK LEGENDS. Any certificate issued to evidence Options or to
evidence shares issued under the Plan shall bear such legends and
statements as the Committee deems advisable to assure compliance with
all federal and state laws and regulations.
9.4 RIGHTS OF SHAREHOLDERS. No Grantee, and no beneficiary or other person
claiming through a Grantee, shall have any interest in any shares of
Common Shares allocated for the purposes of the Plan or subject to any
Option until such shares of Common Shares shall have been issued to such
person. The existence of the Options shall not affect the right or
power of CenterPoint Properties Trust or its shareholders to make
adjustments,
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recapitalizations, reorganizations or other changes in the capital
structure or business of CenterPoint Properties Trust; issue bonds,
debentures, preferred or prior preference stocks affecting the Common
Shares of CenterPoint Properties Trust or the rights thereof; dissolve
CenterPoint Properties Trust, or sell or transfer any part of its assets
or business, or do any other corporate act, whether of a similar
character or otherwise.
9.5 LIABILITY OF CENTERPOINT PROPERTIES TRUST. CenterPoint Properties
Trust, its Parent or any Subsidiary, shall not be liable to a Grantee or
any other person as to:
(a) NON-ISSUANCE OF SHARES. The non-issuance or sale of shares as to
which CenterPoint Properties Trust has been unable to obtain from
any regulatory body having jurisdiction the authority deemed by
counsel to CenterPoint Properties Trust to be necessary to the
lawful issuance and sale of any shares hereunder; and
(b) TAX CONSEQUENCES. Any tax consequences expected but not realized
by any Grantee or other person due to the exercise of any Option
granted hereunder.
9.6 CHOICE OF LAW. The validity, interpretation and administration of the
Plan and of any rules, regulation, determinations or decisions made
thereunder, and the rights of any and all persons having or claiming to
have any interest therein or thereunder, shall be determined exclusively
in accordance with the laws of the State of Illinois. Without limiting
the generality of the foregoing, the period within which any action in
connection with the Plan must be commenced shall be governed by the Laws
of the State of Illinois without regard to the place where the act or
omission complained of took place, the residence or any party to such
action or the place where the action may be brought.
9.7 AMENDMENT AND TERMINATION OF THE PLAN. The Board may alter, amend or
terminate this Plan from time to time without approval of the
shareholders, provided, however, that without the approval of the
shareholders no amendment will be effective that:
(a) materially increases the benefits accruing to participants under
the Plan;
(b) increases (other than by operation of the provisions of Section 8.1
hereof) the aggregate number of shares that may be delivered upon
the exercise of Options granted under the Plan;
(c) materially modifies the eligibility requirements for participation
in the Plan; or
(d) amends the requirements of this Section.
Any amendment, whether with or without the approval of the shareholders,
that alters the terms or provisions of an Option granted before the
amendment (unless the alteration is
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expressly permitted under this Plan or under the terms of the Option
Agreement) will be effective only with the consent of the Grantee or of
the Holder.
9.8 DURATION OF THE PLAN. The Plan shall terminate upon dissolution of
CenterPoint Properties Trust or upon an amendment to terminate the Plan
as provided in Section 9.7. If not previously terminated, the Plan
shall terminate on July 31, 2003. Termination of the Plan other than
upon dissolution of CenterPoint Properties Trust shall not affect the
rights of any Grantee or other Holder of an Option except to the extent
specifically provided in the Option Agreement.
9.9 EFFECTIVE DATE. The Plan is effective as of the date adopted by the
Board, subject to approval by the shareholders of CenterPoint Properties
Trust.
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Exhibit 10.56
FIRST AMENDMENT
CENTERPOINT PROPERTIES TRUST
1995 DIRECTOR STOCK PLAN
The CenterPoint Properties 1995 Director Stock Plan (the "Plan") is hereby
amended as follows:
ARTICLE 1
Section 6.1 is hereby amended in its entirety to henceforth read as follows:
"6.1 AWARD. Upon election or re-election to the Board each year, each
Participant shall receive in lieu of fifty percent (50%) or, upon a
Participant's written election to be received by the Company at
least two business days prior to the date of election or
re-election to the Board, up to one hundred percent (100%) of the
Participant's annual retainer fee an Award determined by dividing
(a) fifty percent (50%) or more, as the case may be, of the
Participant's annual retainer fee by (b) the Share Price for the
last Trading Day before the date of such election or re-election.
The Participant shall receive cash in lieu of any fractional share
resulting from this determination."
ARTICLE 2
This amendment is effective as of the date of adoption by the Board.
<PAGE>
Exhibit 10.57
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CONSTRUCTION LOAN FACILITY AGREEMENT
Dated as of July 31, 1998
by and among
CENTERPOINT DEVELOPMENT CORPORATION
as Borrower
and
LASALLE NATIONAL BANK,
as Lender and Agent
and
U.S. BANK NATIONAL ASSOCIATION,
as Lender
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<PAGE>
CONSTRUCTION LOAN FACILITY AGREEMENT
THIS CONSTRUCTION LOAN FACILITY AGREEMENT (the "Agreement"), dated as of
July 31, 1998, by and among CENTERPOINT DEVELOPMENT CORPORATION, an Illinois
corporation (the "Borrower"); LASALLE NATIONAL BANK, a national banking
association ("LaSalle"), as a Lender and as agent for the Lenders ("Agent"), and
U.S. BANK NATIONAL ASSOCIATION, a national banking association, as a Lender
("USBank" and together with LaSalle in its capacity as a Lender, the "Lenders").
RECITALS.
A. Borrower has requested that Lenders provide a revolving credit
construction loan borrowing facility for Borrower in the maximum principal
amount of $50,000,000.00, of which LaSalle and USBank each will make loans in
the maximum aggregate amount equal to $25,000,000.00, for the purpose of
providing Borrower with construction loans in accordance with the terms and
conditions of this Agreement for the acquisition, construction and redevelopment
of industrial or warehouse properties.
B. LaSalle and USBank have entered into the Co-Lender Agreement (as
defined in Section 2.20).
C. Lenders are willing to provide the credit facility requested by
Borrower in accordance with the terms and conditions set forth in this
Agreement.
NOW THEREFORE, in consideration of the premises and of the mutual covenants
herein contained and intending to be legally bound hereby, the parties hereto
agrees as follows:
ARTICLE 1
1.1 The foregoing Preambles and all other recitals set forth herein are
made a part of this Agreement.
1.2 The Exhibits referred to in this Agreement are incorporated herein and
expressly made a part hereof.
<PAGE>
ARTICLE 2
DEFINITIONS AND EXHIBITS
The following terms as used in this Agreement shall have the following
meanings (such meanings to be equally applicable in both the singular and plural
forms of the terms defined):
2.1 ADDITIONAL COST: Any change after the date hereof in the cost to
Agent or any Lender of complying with any law, rule, regulation or other
requirement imposed, administered and/or enforced by any federal, state or other
governmental or monetary authority (including without limitation reserve
requirements) applicable against any assets held by, or deposits or accounts in
or with, or credits extended by Agent or any Lender, and which causes Agent or
any Lender to incur any cost in, or increases the effective cost to Agent or any
Lender of, lending to Borrower on the LIBOR-Based Rate, or decreases the
effective yield of 1.35% which would otherwise be earned by Lenders between
LIBOR and the LIBOR-Based Rate but for such costs. Any notice of any such
additional sum to be paid shall include a statement, in reasonable detail, as to
the basis upon which said sum has been computed.
2.2 ADMINISTRATION FEE: As defined in Section 3.8(b) hereof.
2.3 ADVANCE: With respect to each Construction Loan, each disbursement of
the principal balance of such Construction Loan.
2.4 AFFILIATE: With reference to a specified Person, any Person that
directly or indirectly through one or more intermediaries Controls or is
Controlled by or is under common Control with the specified Person.
2.5 AGENT: LaSalle, in its capacity as Agent for the Lenders hereunder,
and any successor appointed as provided in the Co-Lender Agreement.
2.6 AGENT'S CONSTRUCTION CONSULTANT: With respect to each Project, the
architect, engineer or other professional consultant retained by Agent to
supervise and/or inspect the Real Estate and/or the construction of such
Project, the cost of whose services shall be borne by Borrower. Agent's
Construction Consultant for each Project shall be one of the consultants listed
on Schedule 1 hereto, unless the Borrower otherwise agrees, and shall be
identified in the Project Addendum for such Project.
2.7 AGREEMENT: This Construction Loan Facility Agreement, including all
amendments, modifications, restatements and
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supplements hereto and any appendices, exhibits or schedules to any of the
foregoing, as the same may be amended from time to time.
2.8 ARCHITECT: With respect to each Project, the architect executing the
Architect's Agreement. The identity of the Architect for each Project shall be
identified in the Project Addendum for such Project.
2.9 ARCHITECT'S AGREEMENT: With respect to each Project, the agreement
between Borrower and the Architect for such Project for the preparation by such
Architect of the Plans and Specifications of such Project and the supervision of
the construction of such Project. The date and document title of the
Architect's Agreement for each Project shall be identified in the Project
Addendum for such Project.
2.10 BORROWER: Centerpoint Development Corporation, an Illinois
corporation.
2.11 BORROWER'S LIABILITIES: All Advances under each Construction Loan,
all interest from time to time accruing thereon, and all liabilities and
indebtedness of any and every kind and nature, now or hereafter owing, arising,
due or payable from Borrower to Lenders under this Agreement or under any of the
Loan Documents executed or delivered in connection with each of the Construction
Loans.
2.12 BUSINESS DAY: A day of the year on which dealings are carried on in
the London interbank market and banks are open for business in London and are
not required or authorized to close in Chicago, Illinois.
2.13 CENTERPOINT PROPERTIES: Centerpoint Properties Trust, a Maryland real
estate investment trust.
2.14 CENTERPOINT PROPERTIES LINE OF CREDIT: As defined in Section 4.1(f)
hereof.
2.15 CENTERPOINT PROPERTIES LINE OF CREDIT DOCUMENTS: As defined in
Section 4.1(f) hereof.
2.16 CENTERPOINT REALTY: Centerpoint Realty Services Corporation, an
Illinois corporation.
2.17 CHANGE IN LAW: Any of the following events: (i) the enactment of any
legislation by an Official Body, including the enactment, amendment or
modification of a treaty; (ii) the lapse, by its terms, of any law of the United
States or any treaty to which the United States is a party; or (iii) the
promulgation of any temporary or final regulation under the Code or any other
statute of any Official Body, or (iv) any change in the interpretation of any
statute or regulation of any Official Body.
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2.18 CHANGE ORDER: With respect to each Project, any change in the Work
which materially affects the quality, intended use or marketability of such
Project, or increases the costs of construction of such Project.
2.19 CODE: The Internal Revenue Code of 1986, as amended, and any
successor statute of similar import, and regulations thereunder, in each case as
in effect from time to time.
2.20 CO-LENDER AGREEMENT. That certain Co-Lender Agreement by and between
LaSalle and USBank of even date herewith, including all appendices, exhibits or
schedules thereto, as such may be modified from time to time by any amendment,
modification, restatement or supplement thereto.
2.21 COMMITMENT FEE: As defined in Section 3.8(a) hereof.
2.22 CONSTRUCTION COMPLETION: With respect to each Project, "Substantial
Completion," as defined in the Put Option Agreement executed in connection with
such Project.
2.23 CONSTRUCTION COMPLETION DATE: With respect to each Project, the date
established as the Construction Completion Date for such Project in accordance
with Section 3.1(c) hereof and stated in the Project Addendum executed by
Borrower in connection with the Construction Loan made for such Project.
2.24 CONSTRUCTION CONTRACT. With respect to each Project, the contract for
construction of the Improvements by and between Borrower and Contractor. The
date and document title of the Construction Contract for each Project shall be
identified in the Project Addendum for such Project.
2.25 CONSTRUCTION LOAN: Each construction loan made by the Lenders to the
Borrower pursuant to the Facility.
2.26 CONSTRUCTION LOAN BALANCE DEFAULT: As defined in Section 3.3(d)
hereof.
2.27 CONTRACT: Any contract for one month, two months, three months, four
months or six months, as elected by Borrower (or any other period expressly
agreed to by Agent and Borrower), made by Agent or any Lender in the London
interbank market to obtain the deposit with Agent of the sum required to fund a
LIBOR Portion for the respective Contract Period. A maximum of four (4)
Contracts may be outstanding at any one time in connection with each
Construction Loan.
2.28 CONTRACT PAYMENT DATE: For each Contract, the date on which it
matures, except that if the Contract matures on a day which is not a Business
Day, the date shall be the next succeeding day which is a Business Day;
provided, however, that (i) if a
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Contract would otherwise expire on a day which is not a Business but is a day of
the month after which no further Business Day occurs in such month, the Contract
Payment Date shall expire on the next preceding Business Day, and (ii) if a
Contract Period begins on a day for which there is no numerically corresponding
day in the calendar month in which the last day of such Contract Period falls,
such Contract Period shall end on the last Business Day of such calendar month.
2.29 CONTRACT PERIOD. The term of a Contract, which shall be one month,
two months, three months, four months or six months (or any other period
expressly agreed to by Agent and Borrower) for which Borrower elects to be
charged interest on a LIBOR Portion at the LIBOR-Based Rate; provided, however,
that with respect to each Construction Loan, no Contract Period shall extend
beyond the Maturity Date as stated in the Notes executed and delivered in
connection with such Construction Loan.
2.30 CONTRACTOR. With respect to each Project, the general contractor or
construction manager executing the Construction Contract. The identity of the
Architect for each Project shall be identified in the Project Addendum for such
Project.
2.31 CONTROL: With respect to any Person, the power directly or
indirectly, to either (a) vote 10% or more of the securities having ordinary
voting power for the election of directors or other controlling persons of such
Person, or (b) direct or control, or cause the direction of, the management
policies of another Person, whether through the ownership of voting securities,
general partnership interests, common directors, trustees, officers by contract
or otherwise. The terms "controlled" and "controlling" shall have meanings
correlative to the foregoing definition of "Control".
2.32 CONVERSION DATE: For interest computation purposes, and as may be
appropriate, the effective date on which:
(i) a LIBOR Portion is converted to Prime-Based Funds; or
(ii) an expiring LIBOR Portion is converted to another LIBOR Portion.
2.33 COST OF FUNDS. The Agent's cost, as determined by Agent each Business
Day, of obtaining a given dollar amount for a given maturity.
2.34 DEED AGREEMENT: As defined in Section 4.2(v) hereof.
2.35 DEFAULT: A Facility Default or a Project Default.
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2.36 DEFAULT INTEREST RATE: The Prime Rate plus three and one-half percent
(3.50%) per annum.
2.37 ENGINEER: With respect to each Project, the engineer or contractor
executing the Engineer's Agreement, if any. The identity of the Engineer for
each Project, if any, shall be identified in the Project Addendum for such
Project.
2.38 ENGINEERING PLANS AND SPECIFICATIONS: With respect to each Project,
the plans and specifications for the Site Improvements, if any.
2.39 ENGINEER'S AGREEMENT: With respect to each Project, the agreement, if
any, between Borrower and the Engineer, if any, for such Project for the
preparation by such Engineer of the Engineering Plans and Specifications for
such Project. The date and document title of the Engineer's Agreement for each
Project, if any, shall be identified in the Project Addendum for such Project.
2.40 EVENT OF DEFAULT: A Facility Event of Default or a Project Event of
Default.
2.41 ENVIRONMENTAL LAWS: All applicable federal, state and local
environmental, land use, zoning, health, chemical use, safety and sanitation
laws, statutes, ordinances, regulations, codes and rules relating to the
protection of the environment and/or governing the use, storage, treatment,
generation, transportation, processing, handling, production or disposal of
Hazardous Materials and all applicable decisions, orders and directives of
federal, state and local governmental agencies, courts and other authorities
with respect thereto.
2.42 ENVIRONMENTAL REPORT: With respect to each Project, one or more
environmental assessment reports, including a Phase I environmental report, each
in form and content, and issued by an environmental engineering firm, reasonably
acceptable to Lenders, concerning the Real Estate and area surrounding the Real
Estate. For each Project, the date and document title of the environmental
report or reports, and the name of the environmental engineering firm preparing
the environmental report or reports, shall be identified in the Project Addendum
for such Project.
2.43 ESTIMATED TOTAL COST OF COMPLETING THE IMPROVEMENTS: With respect to
each Project, as of any given date, the then total cost of completing
construction of the Improvements pursuant to the Plans and Specifications and
any Change Orders permitted under the terms of this Agreement.
2.44 FACILITY: The revolving credit facility for the making of
Construction Loans by the Lenders to the Borrower as established by, and
pursuant to the terms and conditions of, this Agreement.
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2.45 FACILITY DEFAULT: A Facility Event of Default or any event which upon
the passage of time or giving of notice (or both) would constitute a Facility
Event of Default.
2.46 FACILITY EVENT OF DEFAULT: The occurrence of any one or more of the
events described in Section 12.1 hereof.
2.47 FACILITY MATURITY DATE: July 31, 2001.
2.48 FUNDING COSTS. All reasonable losses, expenses and liabilities, to
the extent actually incurred (including, without limitation, any loss, expense
or liability incurred by any Lender in connection with the liquidation or
re-employment of deposits or funds required by it to make or carry its LIBOR
Portions), excluding loss of anticipated profits that any Lender sustains: (a)
if for any reason (other than a default by any Lender) a borrowing of, or
continuation of, a LIBOR Portion does not occur on a date specified therefor in
a notice of borrowing or notice of continuation (whether or not rescinded,
cancelled or withdrawn or deemed rescinded, cancelled or withdrawn, pursuant
hereto), (b) if any prepayment (whether voluntary or mandatory), repayment
(including, without limitation, payment after acceleration) or conversion of any
of its LIBOR Portions occurs on a date which is not the last day of the Contract
Period applicable thereto, (c) if any prepayment of any of its LIBOR Portions is
not made on any date specified in a notice of prepayment given by Borrower, or
(d) as a consequence of any default by Borrower in repaying its LIBOR Portions
or any other amounts owing hereunder in respect of its LIBOR Portions when
required by the terms of this Agreement or the Notes executed and delivered in
connection with any Construction Loan. Borrower acknowledges that Lenders may
obtain funds for LIBOR Portions hereunder through multiple sources, including
one or more larger contracts obtained on the London interbank market. Therefore,
the calculation of all amounts payable to any Lender hereunder shall be made on
the assumption that such Lender has funded its relevant LIBOR Portion through
(i) the purchase of a LIBOR deposit bearing interest at the LIBOR Rate in an
amount equal to the amount of such LIBOR Portion with a maturity equivalent to
the Interest Period applicable to such LIBOR Portion, and (ii) the transfer of
such LIBOR deposit from an offshore office of such Lender to a domestic office
of such Lender in the United States of America. Borrower consents to, and
acknowledges the reasonableness of, such calculation.
2.49 GAAP: Generally accepted accounting principles in the United States
of America (as in effect from time to time) applied on a consistent basis.
2.50 GOVERNMENTAL APPROVALS: With respect to each Project, all
authorizations, approvals, waivers, exemptions, variances, franchises, permits
and licenses or federal, state, municipal or
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other governmental authorizations required for the acquisition, construction,
development, ownership and operation of all or any part of such Project.
2.51 GOVERNMENTAL AUTHORITY or GOVERNMENTAL AUTHORITIES: With respect to
each Project, any and all federal, state, municipal or other governmental bodies
having jurisdiction over Borrower, the Contractor or all or any part of such
Project.
2.52 HARD COSTS: With respect to each Project, the amounts determined by
Lenders to be owing for the costs of labor performed at the Project and
materials incorporated or to be incorporated into such Project.
2.53 HAZARDOUS MATERIALS: Any flammables, explosives, accelerants,
asbestos, radioactive materials, radon, urea formaldehyde foam insulation,
lead-based paint, polychlorinated biphenyls, petroleum or petroleum based or
related substances, hydrocarbons or like substances and their additives or
constituents, methane, and all substances now or hereafter defined as "hazardous
substances", "hazardous materials", "toxic substances" or "hazardous wastes" in
The Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended (42 U.S.C. Section 9601, ET. SEQ.), as amended by the Superfund
Amendments and Reauthorization Act of 1986 (P.L. 99-499, 42 U.S.C.), The Toxic
Substance Control Act of 1976 as amended, (15 U.S.C. Section 2601 ET. SEQ.), The
Resource Conservation and Recovery Act, as amended (42 U.S.C. Section 6901, ET.
SEQ.), The Hazardous Materials Transportation Act, as amended (49 U.S.C. Section
1801, ET. SEQ.), The Clean Water Act, as amended (33 U.S.C. Section 1251, ET.
SEQ.), The Clean Air Act, as amended (42 U.S.C. Section 7401 ET. SEQ.), The
Illinois Environmental Protection Act, as amended (415 ILCS 5/1 ET SEQ.), any
so-called "Superfund" or "Superlien" law or any other applicable federal, state
or local law, common law, code, rule, regulation, or ordinance, presently in
effect or hereafter enacted, promulgated or implemented.
2.54 IMPROVEMENTS: With respect to each Project, all improvements,
including Site Improvements, to be constructed and/or developed in connection
with such Project, as described in the Project Addendum executed and delivered
by Borrower in connection with the Construction Loan made to fund such Project.
2.55 INDEBTEDNESS: Any legal liability, whether matured or unmatured,
liquidated or unliquidated, absolute, fixed or contingent.
2.56 INTERCREDITOR AGREEMENT: That certain Intercreditor Agreement of even
date herewith by and among Borrower, LaSalle, USBank, Centerpoint Properties and
Centerpoint Realty.
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2.57 INTEREST RATE: With respect to each Construction Loan, the
Prime-Based Rate or the LIBOR-Based Rate, as applicable to any portion of such
Construction Loan from time to time.
2.58 INTEREST RESERVE: As defined in Section 3.7 hereof.
2.59 INTEREST RESERVE DEFICIENCY DEFAULT: As defined in Section 3.7
hereof.
2.60 LASALLE: LaSalle National Bank, a national banking association.
2.61 LEASES: With respect to each Project, all leases, subleases,
licenses, concessions, grants, tenancies or other possessory interests in all or
any part of such Project, now or hereafter existing.
2.62 LENDERS: LaSalle and USBank.
2.63 LIBOR: For each Contract, the interest rate quoted by Agent on such
Contract, which shall be the rate of interest per annum (computed on basis of a
year containing the number of days required by the Contract in question) at
which a deposit in U.S. Dollars in the sum equal to the corresponding LIBOR
Portion is or can be obtained by Agent in the London interbank market for the
Contract Period.
2.64 LIBOR-BASED RATE: For any given LIBOR Portion for its corresponding
Contract Period, the sum of: (1) the quotient of: (a) LIBOR, divided by (b) one
minus the Reserve Requirement (expressed as a decimal), plus (2) one hundred
thirty-five (135) basis points per annum, computed on the actual days elapsed
and a year computed as required by the Contract in question.
2.65 LIBOR PORTION: Each portion (if there is more than one Contract in
existence) of the principal balance of any Note from time to time outstanding on
which Borrower is charged interest at the corresponding LIBOR-Based Rate. No
LIBOR Portion shall be less than One Hundred Thousand and 00/100 ($100,000.00)
unless otherwise expressly agreed to by Agent and Borrower, and any greater
amounts shall be in at least $100,000.00 increments.
2.66 LIEN: Any mortgage, deed of trust, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), or preference,
priority or other security agreement of any kind or nature whatsoever,
including, without limitation, any conditional sale or other title retention
agreement, any financing lease having substantially the same effect as any of
the foregoing and the filing of any financing statement or similar instrument
under the Uniform Commercial Code or comparable law of any jurisdiction.
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2.67 LOAN AMOUNT: With respect to each Construction Loan, the amount of
such loan as evidenced by the definition of Loan Amount in the Project Addendum
executed and delivered by Borrower in connection with such Construction Loan.
2.68 LOAN DOCUMENTS: All documents and instruments executed or delivered
by or on behalf of Borrower evidencing or securing a Construction Loan,
including without limitation those described in Subsections 4.2(a) to and
including 4.2(v) hereof.
2.69 LOAN EXPENSES: With respect to each Construction Loan, any and all of
Agent's or any Lender's expenses relating to such Construction Loan, including,
without limitation, recording, registration and filing charges and taxes;
mortgage taxes; charges of the Title Company; escrow charges; photocopying,
printing and photostating expenses; costs of appraisals, surveys, soil reports,
and environmental reports; costs of certified copies of instruments and other
documents; fees of any construction servicer; all costs, fees and expenses of
Agent's Construction Consultant, and all attorney's fees relative to the
preparation and delivery of the Loan Documents for such Construction Loan and
the disbursement of any Advance for such Construction Loan.
2.70 MATERIAL ADVERSE EFFECT: Any condition which has a material adverse
effect upon (i) the business, operations, properties, or assets, taken as a
whole, of Borrower, or (ii) the ability of Agent or the Lenders to enforce any
of Borrower's Liabilities.
2.71 MAXIMUM CONSTRUCTION LOAN FACILITY: As defined in Section 3.1 (a)
hereof.
2.72 MORTGAGE: With respect to each Construction Loan, the Construction
Mortgage and Security Agreement with Assignment of Rents in the form of Exhibit
C hereto encumbering the Project funded by such Construction Loan to be made by
Borrower in favor of Lenders and Agent to secure such Construction Loan.
2.73 MORTGAGED PREMISES: With respect to each Construction Loan, the Real
Estate and all other property conveyed to Lenders and Agent as security for such
Construction Loan, as more fully described in the Mortgage delivered in
connection with such Construction Loan, together with the Improvements funded by
such Construction Loan.
2.74 MUNICIPALITY: With regard to each Project, the city, village or other
municipal entity in which the Project is located.
2.75 NOTES: With respect to each Construction Loan, the Promissory Notes,
in the form of Exhibits B-1 and B-2 hereto, each in the stated principal amount
of one-half of the Loan Amount for
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such Construction Loan, executed and delivered by Borrower to evidence such
Construction Loan.
2.76 OFFICE: When used in connection with the Agent, its office located at
135 South LaSalle Street, Suite 1225, Chicago, Illinois 60603, or such other
office or offices of the Agent or branch, subsidiary or affiliate thereof as may
be designated in writing from time to time by the Agent to the Borrower and the
Lenders.
2.77 OFFICIAL BODY: Any government or political subdivision or any agency,
authority, bureau, central bank, commission, department or instrumentality of
either, or any court, tribunal, grand jury or arbitrator, in each case whether
foreign or domestic.
2.78 PERMIT: Any and all permits, authorizations, approvals,
registrations, rights of way, orders, waivers, variances or other licenses
issued or granted by any Governmental Authority.
2.79 PERMITTED EXCEPTIONS: With respect to each Construction Loan, the
exceptions to title contained in Exhibit "B" to the Project Addendum executed
and delivered by Borrower in connection with such Construction Loan.
2.80 PERSON: An individual, corporation, partnership, trust,
unincorporated association, joint venture, joint-stock company, government
(including political subdivisions), governmental authority or agency, or any
other entity.
2.81 PLANS AND SPECIFICATIONS: With respect to each Project, the plans and
specifications for the Improvements to be constructed in connection with such
Project, as approved by Lenders and by Agent's Construction Consultant.
2.82 PRIME-BASED FUNDS. At any time, the portion of the outstanding
principal balance of any Construction Loan on which interest is being charged at
the Prime-Based Rate.
2.83 PRIME-BASED RATE. The rate per annum equal to the Prime Rate.
2.84 PRIME RATE. The rate of interest most recently announced at any time
and from time to time by LaSalle as its prime rate or equivalent rate of
interest per annum at its principal office in Chicago, Illinois (which rate may
not necessarily be the lowest rate charged by LaSalle), provided that if LaSalle
ceases to use the term "Prime Rate" in setting a base rate, the Prime Rate
hereunder shall be determined by reference to the rate used by LaSalle as such a
base rate as designated by LaSalle to Borrower. The Prime Rate shall be and
become effective as of the date of each change in the Prime Rate. In the event
LaSalle shall cease to be the Agent hereunder, Prime Rate shall mean the rate of
interest
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most recently announced at any time and from time to time by USBank as its prime
rate or equivalent rate of interest per annum at its principal office in
Chicago, Illinois (which rate may not necessarily be the lowest rate charged by
USBank), provided that if USBank ceases to use the term "Prime Rate" in setting
a base rate, the Prime Rate shall be determined by reference to the rate used by
UsBank as such a base rate as designated by USBank to Borrower.
2.85 PROJECT: With respect to each Construction Loan, the Real Estate and
Improvements (each as more fully described in the Project Addendum executed and
delivered by Borrower in connection with such Construction Loan) to be developed
in accordance with the terms of this Agreement.
2.86 PROJECT ADDENDUM: With respect to each Construction Loan, the
addendum in the form of Exhibit A hereto executed and delivered by Borrower in
connection with such Construction Loan.
2.87 PROJECT BUDGET: With respect to each Project, the budget, attached as
Exhibit "C" to the Project Addendum executed and delivered by Borrower in
connection with the Construction Loan funding such Project, setting forth all
expenses and costs of such Project, including but not limited to the cost of
acquisition of the Real Estate, which budget must be approved by Lenders in
Lenders' sole and absolute discretion and may not be modified without Lenders'
prior written approval.
2.88 PROJECT DEFAULT: A Project Event of Default or any event which upon
the passage of time or giving of notice (or both) would constitute a Facility
Event of Default.
2.89 PROJECT EVENT OF DEFAULT: The occurrence of any one or more of the
events described in Section 13.1 hereof.
2.90 PROJECT LOAN: With respect to each Project, a loan made by
Centerpoint Properties or Centerpoint Realty, evidenced by a note in the form
attached as Exhibit C-1 (in the case of Centerpoint Properties) or Exhibit C-2
(in the case of Centerpoint Realty) to the Intercreditor Agreement, and
subordinated to all of Borrower's Liabilities in accordance with the terms and
provisions of the Intercreditor Agreement.
2.91 PRO RATA or PRO RATA INTEREST: As between the Lenders, in proportion
to each Lender's portion of the Maximum Construction Loan Facility, or if the
Facility shall have been terminated, each Lender's percentage of the
Construction Loans then outstanding.
2.92 PUT LOAN: With respect to any Project, a loan made by Centerpoint
Properties to the Borrower, pursuant to the terms of Section 3 and Exhibits C-1
to C-10 of the Put Option Agreement for such Project, the proceeds of which are
used, in part, to pay in
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full the principal amount and all accrued interest upon the Construction Loan
for such Project.
2.93 PUT OPTION AGREEMENT: With respect to each Project, the Put Option
Agreement in the form of Exhibit U hereto executed by Borrower and Centerpoint
Properties in connection with such Project. The date of the Put Option
Agreement for each Project shall be identified in the Project Addendum for such
Project.
2.94 REAL ESTATE: With respect to each Project, the real estate legally
described on Exhibit "A" to the Project Addendum executed and delivered by
Borrower in connection with the Construction Loan funding such Project.
2.95 REGULATION D: Regulation D of the Board of Governors of the Federal
Reserve System from time to time in effect, and any successor or other
regulation or official interpretation of said Board of Governors relating to
reserve requirements applicable to member banks of the Federal Reserve System.
2.96 RESERVE REQUIREMENT: With respect to any Contract Period, the daily
average during each such period of the maximum aggregate reserve requirement
(including but not limited to all basic, supplemental, marginal and other
reserves and taking into account any transitional adjustments or other scheduled
changes in reserve requirements during such period) which is imposed under
Regulation D on non-personal time deposits of One Hundred Thousand Dollars
($100,000.00) or more with a maturity equal to the particular Contract Period.
2.97 SITE IMPROVEMENTS: With respect to each Project, all necessary on and
off-site improvements required for completion of such Project, including,
without limitation, roads, storm sewers, detention and retention facilities,
sanitary sewers, curbs, gutters, water, electric, gas and all other utility
systems.
2.98 SOFT COSTS: With respect to each Project, all expenses, fees and
other costs of development and sale of the Project other than Hard Costs.
2.99 SOLVENT: With respect to any Person on a non-consolidated basis and a
particular transaction, upon consummation of the transaction and after giving
effect thereto, (a) the entity's financial condition shall be such that the
entity's property at a fair valuation will exceed its debts, (b) the present
fair saleable value of the entity's assets will be greater than the amount that
will be required to pay its probable liability on its debts as such debts become
absolute and matured, (c) the entity is paying its debts as they become due, and
intends and believes that it will be able to pay its debts as they mature, and
(d) the property remaining in the entity will not be an unreasonably small
capital for the business in which the entity is engaged or is about
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to engage. As used herein, "debts" includes any legal liability, whether
matured or unmatured, liquidated or unliquidated, absolute, fixed or contingent.
2.100 TAXES: Any present or future stamp or other taxes, levies,
imposts, duties, charges, fees, deductions, withholdings, restrictions or
conditions of any nature whatsoever now or hereafter imposed, levied, collected,
withheld or assessed by any country (or by any political subdivision or taxing
authority thereof or therein), excluding, in the case of either Lender, net
income and franchise taxes imposed on such Lender by the jurisdiction under the
laws of which such Lender is organized or any political subdivision or taxing
authority thereof or therein, or by any jurisdiction in which a Lender's office
is located or any political subdivision or taxing authority thereof or therein.
2.101 TITLE COMPANY: Chicago Title Insurance Company.
2.102 UNAVOIDABLE DELAYS: Delays due to strikes, acts of God, enemy
action, civil commotion, fire, unavoidable casualty, materials shortages or
other causes beyond the control of the Borrower.
2.103 USBANK: U.S. Bank National Association, a national banking
association.
2.104 WORK: With respect to each Project, the labor and materials to
be furnished for the construction of the Improvements.
2.105 YEAR 2000 PROBLEM: The risk that computer applications used by
the Borrower and/or Centerpoint Properties may be unable to recognize and
perform properly date-sensitive functions involving certain dates prior to and
any date on or after December 31, 1999.
The words "herein," "hereof" and "hereunder" and other words of similar
import refer to this Agreement as a whole, including the Exhibits hereto, as the
same from time to time be amended, modified, restated or supplemented and not to
any particular section, subsection or clause contained in this Agreement. The
term "including" shall mean including without limitation.
ARTICLE 3
AGREEMENT TO MAKE CONSTRUCTION LOANS
3.1 THE CONSTRUCTION LOAN FACILITY.
(a) THE FACILITY. Subject to the terms and conditions of this Agreement,
including all terms and conditions of Section 4.2 hereof, and relying upon the
representations and warranties herein set forth, and provided that there does
not then exist any Facility
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Default, Facility Event of Default, Construction Loan Balance Default or
Interest Reserve Deficiency Default, LaSalle and USBank severally agree to make
Construction Loans to the Borrower at any time or from time to time on or after
the date hereof in an amount or amounts such that the aggregate stated principal
amount of all Notes made by Borrower to evidence such Construction Loans shall
not exceed at any time $50,000,000.00 (the "Maximum Construction Loan
Facility"). LaSalle's portion of the Maximum Construction Loan Facility shall
not exceed $25,000,000.00 and USBank's portion of the Maximum Construction Loan
Facility shall not exceed $25,000,000.00. Each Construction Loan and each
Advance is at all times subject to the conditions and limitations set forth in
this Agreement, compliance with all of the covenants set forth in Article 7
hereof, and, with respect to each Construction Loan individually, compliance
with all of the covenants set forth in Article 8 hereof. Neither Lender shall
have any obligation to make Advances or Construction Loans on or after the
Facility Maturity Date (or such earlier date as may be applicable hereunder).
The obligations of the Lenders hereunder are several and not joint and neither
Lender shall under any circumstances be obligated to extend credit hereunder in
excess of its portion of the Maximum Construction Loan Facility or its Pro Rata
share of the credit outstanding hereunder.
(b) LIMITATIONS ON THE AMOUNT AND TERM OF EACH CONSTRUCTION LOAN. Each
Construction Loan shall be in a maximum principal amount of the lesser of (i)
$10,000,000.00, (ii) eighty percent (80%) of the total cost of the development
of the Project (including land cost) as shown on the Project Budget for such
Project approved by Lenders, or (iii) ninety percent (90%) of the value of the
Project as determined pursuant to the appraisal required by Section 4.2(ac)
hereof. Each Note executed to evidence a Construction Loan shall have a
maturity date of the earlier of (i) one year from the date of such Note (unless
a longer term is otherwise permitted by Lenders, in the Lender's sole
discretion, upon application by Borrower), and (ii) the Facility Maturity Date.
(c) LIMITATIONS ON CONSTRUCTION COMPLETION DATE. Each Project Addendum
executed in connection with a Construction Loan shall provide for a Construction
Completion Date of the earlier of (i) thirty (30) days prior to the maturity
date of the Notes executed in connection with such Project, (ii) the date by
which Borrower must substantially complete the Work (as defined in the Put
Option Agreement for such Project) as stated in Section 5e. of the Put Option
Agreement for such Project (the "Section 5e Date"), or (iii) the Put Termination
Date for such Project, as defined in Section 5i. of the Put Option Agreement for
such Project. In the event (A) either the Section 5e Date or the Put
Termination Date for such Project is earlier than thirty (30) days prior to the
maturity date of the Notes executed in connection with such Project, (B) such
earlier date is extended pursuant to the terms and conditions of the Put Option
Agreement for such Project, and
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(C) such extension does not cause, and will not result in, a default under any
Lease of all or any part of such Project, the Construction Completion Date for
such Project shall be extended to the earlier of such extended date, the date
from subsections (ii) and (iii) above which is not so extended, and that date
which is thirty (30) days prior to the maturity date of the Notes executed in
connection with such Project. In no event shall the Construction Completion
Date be extended to a date later than that date which is thirty (30) days prior
to the maturity date of the notes executed in connection with such Project.
(d) REVOLVING CREDIT. Within the limits of time and amounts set forth in
this Section 3.1, and subject to the provisions of this Agreement, Borrower may
borrow and repay Construction Loans hereunder, and reborrow additional
Construction Loans hereunder, provided that at all times the stated principal
amount of all Notes evidencing all Construction Loans for which any indebtedness
remains outstanding shall not exceed the Maximum Construction Loan Facility.
Notwithstanding the foregoing, or any other provision of this Agreement or any
Loan Document, under no circumstances shall the proceeds of any individual
Construction Loan revolve or be available upon their repayment for reborrowing
with respect to such Construction Loan or the Project which is the subject of
such Construction Loan.
3.2 DISBURSEMENT OF EACH CONSTRUCTION LOAN: Subject to the satisfaction
of the terms and conditions herein contained, Advances of each Construction Loan
shall be disbursed as follows:
(a) Borrower hereby authorizes and directs the Agent to disburse for and
on the behalf of Borrower and Borrower's account, all Advances made by either
Lender to Borrower pursuant to this Agreement as any officer or director of
Borrower shall direct, whether in writing or orally.
(b) The first Advance of each Construction Loan shall not be made until
such time as all of the conditions set forth in Section 4.2 hereof have been
satisfied by Borrower. Each subsequent Advance of each Construction Loan shall
be made only at such time as all applicable conditions set forth in Sections 4.4
and 4.5 hereof have been satisfied by Borrower.
(c) All Advances (including the first) of each Construction Loan shall be
made through a Construction Loan Escrow Trust and Disbursing Agreement in the
form of Exhibit S attached hereto (a "Construction Escrow") established with the
Title Company and through a Title Company account established with Agent. The
execution of this Agreement constitutes an irrevocable direction and
authorization by Borrower to each Lender to disburse the proceeds of each
Construction Loan in the above manner. Funds will be considered to have been
disbursed by each Lender to Borrower, and interest shall accrue thereon, upon
the disbursement of funds
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by Agent to the Title Company account. Unless otherwise approved by the
Lenders, until the Project financed by any Construction Loan is fifty percent
(50%) complete (as determined by the cash value of the Work completed), cash
disbursement of any Construction Loan shall in no event exceed ninety percent
(90%) of the value as reasonably determined by Lenders of the labor, work,
services and materials rendered to and incorporated in the Improvements and all
materials stored at the Real Estate (which materials shall only be those
reasonably necessary for the continued progress of construction of the
Improvements) for the Project financed by such Construction Loan. Amounts
retained shall not be paid until thirty (30) days after substantial completion
of all Improvements for such Project, subject to punch list retainage.
(d) The proceeds of each Construction Loan are to be disbursed by Agent as
herein provided solely for the payment of costs and expenses shown on the
Project Budget for such Construction Loan actually incurred by Borrower.
Without limitation of any other provision hereof, with respect to any particular
item or category shown on the Project Budget for each Construction Loan, in no
event shall either Lender be required to disburse any portion of such
Construction Loan in excess of the portion of such Construction Loan allocated
to such item or category of the Project as shown on the Project Budget. The
Borrower may request, subject to the approval of the Lenders in their reasonable
discretion, reallocation of line items in the Project Budget for a Construction
Loan to allocate cost savings in one or more line items with respect to work
completed to other line items on the Project Budget for such Construction Loan.
3.3 ADVANCE PROCEDURES: The procedures for Advances of each Construction
Loan shall be as follows:
(a) Borrower shall request and Agent and Lenders shall be required to make
Advances of each Construction Loan not more frequently than once each calendar
month. Agent and Lenders may at any time take such action as they deem
appropriate to verify that the conditions precedent to each Advance have been
satisfied, including but not limited to, verification of the amounts due under
any construction contract relative to the applicable Work. Borrower agrees to
cooperate with Agent and Lenders in any such action. If in the course of any
such verification, any amount shown on any construction contract, application
for payment, sworn statement or waiver of lien is subject to a possible
discrepancy, such discrepancy shall be eliminated by Borrower to the
satisfaction of Agent and Lenders. Each request for an Advance shall be made by
a notice delivered from Borrower to Agent and Lenders not less than ten (10)
days prior to the date of the requested Advance specifying in detail the amount
of such Advance and accompanied by the items required pursuant to Sections 4.2,
4.4 and 4.5 hereof.
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(b) For purposes of this Agreement (i) the cost of labor and materials
furnished for Work shall be deemed to be incurred by Borrower when the labor and
materials have been incorporated into the applicable Improvements, (ii) the cost
of services (other than labor included in Work) shall be deemed to be incurred
by Borrower when the services are actually rendered, and (iii) any other costs
shall be deemed to be incurred by Borrower when due and payable, but not before
the value to be received in return for such cost has been received by Borrower.
(c) No Advance of a Construction Loan for materials purchased by Borrower
but not yet installed or incorporated into the applicable Project shall be made
without Agent's prior approval of the conditions under which such materials are
purchased and stored. In no event shall any such Advance be made unless the
materials involved have been delivered to the applicable Real Estate or stored
with a bonded warehouseman, with satisfactory evidence of security, insurance
and suitable storage. Upon Agent's request, Borrower shall provide Agent, in
connection with such materials, a copy of a bill of sale or other evidence of
title in Borrower, together with a copy of UCC searches against Borrower and the
warehouseman, if applicable, indicating no liens or claims which may affect such
materials.
(d) If at any time the Lenders reasonably determine that, with respect to
any Construction Loan, the Estimated Total Cost of Completing the Improvements
for the applicable Project is more than the Loan Amount for such Construction
Loan plus the amount of any funds of Borrower then on deposit with the Agent for
such Construction Loan pursuant to this Section 3.3(d), or that the amounts
advanced for any cost item shown on the applicable Project Budget exceeds, or
would if disbursed exceed, the amount shown therefor on such Project Budget (in
either case a "Construction Loan Balance Default"), neither Lender shall have
any obligation to make any further Advances hereunder (with respect to the
particular Construction Loan involved or with respect to any other Construction
Loan) and Borrower covenants and agrees that within fifteen (15) days of the
mailing of written notice of any Construction Loan Balance Default it will
deposit funds with the Agent in an amount sufficient to cure such default, all
funds so deposited with the Agent to be held by it without interest as
collateral security for the Construction Loan for which they were deposited and
disbursed for the payment of costs for which Construction Loan proceeds may be
requested pursuant to the applicable Project Budget prior to the Advance of any
further proceeds of the applicable Construction Loan.
(e) Borrower hereby authorizes Agent to make Advances of the proceeds of a
Construction Loan directly to itself and the Lenders for payment and
reimbursement of all interest due with respect to such Construction Loan
hereunder or under any Loan Document executed in connection with such
Construction Loan, and
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all other charges, costs and expenses (including Loan Expenses) required to be
paid by Borrower hereunder with respect to such Construction Loan to the extent
such interest and other charges, costs and expenses are not paid within five
days of the date when due (in the case of interest) or within fifteen (15) days
following delivery of statements therefor (in the case of other charges, costs
and expenses) to Borrower.
3.4 INTEREST ON AND REPAYMENT OF CONSTRUCTION LOANS:
(a) Prior to the occurrence of a Project Default with respect to any
individual Construction Loan, interest on all Advances of such Construction Loan
shall accrue on each LIBOR Portion of such Construction Loan from the date of
disbursement of such LIBOR Portion at the LIBOR-Based Rate, for the applicable
Contract Period, and interest shall accrue on the Prime-Based Funds of such
Construction Loan from the date of disbursement of such Prime-Based Funds at the
Prime-Based Rate. Interest on Prime-Based Funds and on each LIBOR Portion shall
be calculated on the basis of the actual number of days elapsed during the
period for which interest is being charged hereunder, predicated on a year
consisting of three hundred and sixty (360) days.
(b) Interest on the balance of principal from time to time outstanding and
unpaid of the Prime-Based Funds of each Construction Loan shall be payable
monthly in arrears commencing on the first day of the month following the
initial Advance thereof and continuing on the first day of each successive month
thereafter, with a final payment of all accrued unpaid interest, together with
the entire unpaid remaining principal balance of the indebtedness evidenced by
the Notes executed and delivered in connection with each Construction Loan, due
and payable on the Maturity Date, as defined in the Notes evidencing each
Construction Loan, unless the indebtedness evidenced by such Notes is
accelerated as provided herein.
(c) All payments on each Note shall be made in lawful money of the United
States at the Office of the Agent (or to such other place as any holder thereof
may from time to time direct by written notice) and shall be received by Agent
by 2:00 p.m. Central time. Funds received after that hour shall be deemed to
have been received by Agent on the following business day. Prior to a Project
Event of Default with respect to the Construction Loan for which Notes have been
delivered, all monies paid by Borrower to Agent in connection with such Notes
shall be applied in the following order of priority: (a) first, toward payment
of all fees, cost and expenses due to Agent or Lenders in connection with the
applicable Construction Loan pursuant to this Agreement or any Loan Document
executed and delivered in connection with the applicable Construction Loan; (b)
next, toward payment of interest which has accrued on the outstanding principal
balance of such Notes and which is due and payable; and (c) last, toward payment
of
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the outstanding principal balance of such Notes. While any Project Event of
Default exists, Agent and Lenders are expressly authorized to apply payments
made under the affected Notes as they may elect against any or all of Borrower's
Liabilities then due and payable in connection with the Construction Loan
evidenced by such Notes.
(d) Any portion of any Construction Loan comprised of Prime-Based Funds
may be prepaid, either in whole or in part, together with all accrued and unpaid
interest thereon, without penalty or premium, at any time and from time to time.
Any portion of any Construction Loan comprised of a LIBOR Portion may be
prepaid, either in whole or in part, only if such prepayment is accompanied by a
simultaneous payment of any Additional Cost, Funding Costs, Taxes and accrued
interest on the Contract attributable to such LIBOR Portion which is being
prepaid.
(e) With respect to each Construction Loan, upon the occurrence and during
the continuance of a Project Default or Project Event of Default with respect to
such Construction Loan, or upon the occurrence and during the continuance of a
Facility Default or a Facility Event of Default, interest on the unpaid
principal balance of the Notes evidencing the affected Construction Loan or
construction Loans (regardless of whether all or any portion of the affected
loan or loans is then accruing interest at a LIBOR-Based Rate) at the Default
Interest Rate; provided, however, that in the event a Project Default or
Facility Default is cured during any applicable cure period, the Default
Interest Rate shall not be applied to the period of the pendency of such
default. In the event that all or any portion of the affected loan or loans is
then accruing interest at a LIBOR-Based Rate, Agent and Lenders shall have the
right, but shall have no obligation, to break any or all Contracts made by Agent
in connection with such loan or loans, in which event Borrower shall immediately
pay to Agent and Lenders all Funding Costs incurred by Agent or any Lender as a
result of such breakage. The occurrence and continuance of a Default with
respect to any Construction Loan shall terminate Borrower's right to elect to
place all or part of such Construction Loan at the LIBOR-Based Rate.
(f) If any installment of interest or the unpaid principal balance due
under any Note or any escrow fund payment for taxes or insurance required under
any Mortgage becomes overdue for a period in excess of ten (10) days, Borrower
shall pay to Agent a late charge of five cents ($.05) for each dollar so overdue
to defray part of the increased cost of collecting the late payments and the
opportunity cost incurred by Agent and/or Lenders because of the unavailability
of the funds.
(g) It is the intention of Agent, Lenders and Borrower to comply with the
laws of the State of Illinois, and it is agreed that notwithstanding any
provision to the contrary in this Agreement or in any Loan Document executed and
delivered in
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connection with any Construction Loan, no such provision shall require the
payment or permit the collection of any interest ("Excess Interest") in excess
of the maximum amount of interest permitted by law to be charged for the use or
detention, or the forbearance in the collection, of all or any portion of the
indebtedness evidenced by any Note or any other part of Borrower's Liabilities.
If any Excess Interest is provided for, or is adjudicated to be provided for,
herein or in any Note or other Loan Document, then in such event: (a) the
provisions of this paragraph shall govern and control; (b) Borrower shall not be
obligated to pay any Excess Interest; (c) any Excess Interest that Agent or any
Lender may have received hereunder shall, at the option of Agent or such Lender,
be (i) applied as a credit against the then outstanding principal balance of one
or more of the outstanding Construction Loans, accrued and unpaid interest
thereon not to exceed the maximum amount permitted by law, or both, (ii)
refunded to the payor thereof, or (iii) any combination of the foregoing; (d)
the applicable interest rate or rates hereunder shall be automatically subject
to reduction to the maximum lawful contract rate allowed under the applicable
usury laws of the aforesaid State, and this Agreement, each Note and all other
Loan Documents executed and delivered in connection with each Construction Loan
shall be deemed to have been, and shall be, reformed and modified to reflect
such reduction in such applicable interest rate or rates; and (e) Borrower shall
not have any action against Agent or any Lender for any damages whatsoever
arising out of the payment or collection of any Excess Interest.
3.5 LIBOR OPTION.
(a) Provided that no Project Default then exists with respect to any
individual Construction Loan, Borrower shall have the right to elect (assuming
each of the conditions set forth in subsections (i), (ii) and (iii) below have
been satisfied), from time to time during the term of such Construction Loan, to
have (y) all or any part, but in no event less than One Hundred Thousand and
00/100 Dollars ($100,000.00), of the then outstanding principal indebtedness
evidenced by the Notes executed and delivered in connection with such
Construction Loan treated as a LIBOR Portion, and/or to convert (z) the whole or
not less than One Hundred Thousand and 00/100 Dollars ($100,000.00) of any
existing LIBOR Portion converted to a new LIBOR Portion upon the Contract
Payment Date for such LIBOR Portion, subject to:
(i) the receipt by Agent of notice of such election, together with an
election of a Contract Period, not less than three (3) Business Days prior
to the date requested by Borrower for commencement of the new Contract
required to cover the new LIBOR Portion;
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(ii) the availability to Agent and/or Lenders of a Contract to cover
such new LIBOR Portion effective on the requested date of commencement for
the Contract Period; and
(iii) Borrower's payment of any Additional Cost, Funding Cost and
Taxes incurred by Agent or any Lender from time to time attributable to
such new LIBOR Portion.
(b) Interest on each LIBOR Portion shall be payable, in arrears, on the
first day of each month. Interest due on any LIBOR Portion on the date of any
termination, breakage or other disposition of its covering Contract shall be
paid to Agent and received by Agent in immediately available funds, at the place
designated by Agent, by 2:00 p.m. on the date such interest is due to Agent or
any Lender by reason of the termination, breakage or other disposition in
accordance with the foregoing.
(c) Any portion of the principal balance of any Construction Loan from
time to time outstanding that is not a LIBOR Portion shall be considered
Prime-Based Funds accruing interest at the Prime-Based Rate.
(d) If, after the date hereof, the adoption of any applicable law, rule or
regulation, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by Agent or any Lender with any request or directive, whether or not having the
force of law of any such authority, central bank or comparable agency, shall
make it unlawful or impossible for Agent or any Lender to make, maintain or fund
a LIBOR Portion, Agent shall so notify Borrower. Upon receipt of such notice,
Borrower shall repay in full the then outstanding principal amount of each
affected LIBOR Portion, together with accrued interest thereon, on either (i)
the last day of the then current Contract Period applicable thereto if Agent and
Lenders may lawfully continue to maintain and fund such LIBOR Portion to such
day or (ii) immediately if Agent or any Lender may not lawfully continue to fund
and maintain such LIBOR Portion to such day. Concurrently with repaying each
such LIBOR Portion and provided no Default or Event of Default is then in
existence with respect to the affected Construction Loan, Borrower may, at its
option, reborrow from Lenders an equal principal amount, at the Prime-Based
Rate, in accordance with and subject to the terms and conditions hereof and of
the Loan Documents executed and delivered in connection with the affected
Construction Loan.
(e) In the event that any Change in Law reduces or shall have the effect
of reducing the rate of return on a Lender's capital or the capital of its
parent corporation (by an amount such Lender deems material) as a consequence of
the Facility or any Construction Loan to a level below that which such Lender or
its
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parent corporation could have achieved but for such Change in Law (taking into
account such Lender's policies and the policies of its parent corporation with
respect to capital adequacy), and provided all affected Advances are not
required to be repaid by Borrower pursuant to Section 3.5(d) above, then
Borrower shall, within fifteen (15) days after written notice and demand from
such Lender, pay to such Lender additional amounts sufficient to compensate such
Lender, or its parent corporation, for such reduction. Any determination by a
Lender under this Section 3.5(e) and any certificate as to the amount of such
reduction given to Borrower by such Lender shall be final, conclusive and
binding for all purposes, absent error.
(f) If, as a result of any Change in Law any Taxes are required to be
withheld or deducted from any amount payable to Agent or any Lender with respect
to a LIBOR Portion, the amount payable will be increased to the amount which,
after deduction from such increased amount of all Taxes required to be withheld
or deducted therefrom, will yield to Agent and/or Lenders the amount stated to
be payable with respect thereto. Borrower will execute and deliver to Agent at
its request such further instruments as may be necessary or desirable to give
full force and effect to any such increase, including, but not limited to,
replacement promissory notes to be issued in exchange for the Notes theretofore
issued. Borrower will also hold Agent and each Lender harmless and indemnify
each of them for any stamp or other Taxes with respect to the preparation,
execution, delivery, performance or enforcement of the Loan Documents for each
Construction Loan (all of which shall be included in "Taxes"). Borrower will,
upon the request of Agent, provide Agent with evidence satisfactory to it of the
payment of any Taxes. If any of the Taxes are paid by Agent or any Lender,
Borrower will, upon demand of Agent or such Lender, reimburse Agent or such
Lender for such payments, together with any interest, penalties and expenses in
connection therewith, plus interest thereon at the Default Interest Rate from
the date such payment or payments are made to the date of reimbursement by
Borrower.
(g) Borrower and Agent shall from time to time, upon written request from
the other, deliver a written acknowledgment in form reasonably satisfactory to
the requesting party indicating, as of the date thereof: (a) the respective
portions of each Construction Loan which bear interest at the Prime-Based Rate,
(b) the respective portions of each Construction Loan which bear interest at the
LIBOR-Based Rate, and the LIBOR-Based Rate(s) applicable thereto, and (c) the
respective Conversion Date(s) applicable to any and all LIBOR Portion(s).
3.6 NOTES, MORTGAGES AND OTHER LOAN DOCUMENTS: Borrower's obligation to
repay Lenders the Loan Amount of each Construction Loan shall be evidenced by
the Notes of the Borrower, each in the stated principal amount of one-half of
the applicable Loan Amount, and payable, respectively, to LaSalle and USBank.
Each
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Construction Loan shall be secured by a Mortgage and other security documents
delivered by Borrower in accordance with Section 4.2 hereof.
3.7 INTEREST RESERVE: In the event the Project Budget for a Construction
Loan includes an interest reserve in the amount of interest expected to be paid
during the term of such Construction Loan (an "Interest Reserve"), during
construction of the applicable Project prior to the applicable Construction
Completion Date amounts in such Interest Reserve will be advanced by Lenders
from time to time as interest payments become due to pay regularly scheduled
interest on such Construction Loan so long as (i) no Facility Event of Default
has occurred hereunder, and (ii) with respect to the Project financed by such
Construction Loan, no Project Event of Default has occurred hereunder. Interest
will be payable by Borrower on that portion of any Interest Reserve actually
disbursed by Lenders. Any Interest Reserve will not be included in the
computation of the undisbursed portion of a Construction Loan for purposes of
determining whether, with respect to the applicable Construction Loan, a
Construction Loan Balance Default exists. If, for any reason other than payment
by Borrower of interest from other than Advances of the applicable Construction
Loan, Lenders do not advance funds from the Interest Reserve to pay interest
when due (which shall only occur if an Event of Default described in subsection
(i) and (ii) of this Section 3.7 shall have occurred), Agent shall so notify
Borrower, in writing, and of the reason therefor, and Borrower shall have a
period of five (5) days from such notification to pay the interest due;
provided, however, that neither Lender shall have any obligation to make any
further Advances hereunder (with respect to the particular Construction Loan
involved or with respect to any other Construction Loan) until such time as such
interest is paid. In the event any Interest Reserve is reduced to an amount
less than the total amount of interest due or reasonably anticipated to become
due in connection with the applicable Construction Loan (an "Interest Reserve
Deficiency Default"), Agent will notify Borrower of such default and the amount
of the deficiency, in writing, and Borrower shall deposit with Agent cash or the
cash equivalent thereof within fifteen (15) days following notification from
Agent; provided, however, that neither Lender shall have any obligation to make
any further Advances hereunder (with respect to the particular Construction Loan
involved or with respect to any other Construction Loan) until such time as
Borrower has complied with the requirements hereof.
3.8 LOAN FEES: Borrower shall pay the following loan fees in connection
with the Facility:
(a) a fee for the benefit of the Lenders in the amount of $200,000.00 (the
"Commitment Fee") upon the execution of this Agreement; and
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(b) a $10,000 construction administration fee (the "Administration Fee")
for the benefit of Agent quarterly in advance, payable on each January 1, April
1, July 1 and October 1 prior to the Facility Maturity Date; provided, however,
the first $10,000 installment of the Administration Fee shall be paid upon the
execution of this Agreement and no installment of the Administration Fee shall
be payable on July 1, 2001. In the event the initial Advance of more than four
Construction Loans occurs in any given Loan Year (as hereinafter defined),
Borrower shall pay to Agent an additional one-time Administration Fee in the
amount of $10,000 on the date of the initial Advance of the fifth and each
succeeding Construction Loan made in such Loan Year. As used herein, a "Loan
Year" is the period from and including the date of this Agreement (or any
anniversary of the date of this Agreement) to and including the day preceding
the next anniversary of the date of this Agreement.
3.9 TAXES.
(a) All payments made by Borrower under this Agreement or any Loan
Document executed in connection with any Construction Loan, including all
payments with respect to any LIBOR Portion (including payments of principal and
interest), shall be made free and clear of, and without deduction or withholding
for or on account of, any Taxes.
(b) Notwithstanding anything to the contrary herein, if at any time or
from time to time Taxes are required to be deducted or withheld from the
payments required to be made to Agent or either Lender hereunder solely by
reason of a Change in Law after the date hereof (other than as a result of any
transfer or assignment of any of the obligations of Borrower hereunder), all
payments required to be made by Borrower hereunder or under any Loan Document
executed in connection with any Construction Loan (including any additional
amounts that may be payable pursuant to this clause (b)) shall be increased to
the extent required so that the net amount received by Agent or such Lender
after the deduction or withholding of Taxes imposed solely by reason of a Change
in Law after the date hereof will be not less than the full amount that would
otherwise have been receivable had no such deduction or withholding been imposed
by reason of such Change in Law. In the event that this clause (b) shall be
operative, Borrower shall promptly provide to Agent evidence of payment of such
Taxes to the appropriate taxing authority and shall promptly forward to Agent
any official tax receipts or other documentation with respect to the payment of
the Taxes as may be issued by the taxing authority. If Borrower fails to pay
any Taxes when due to the appropriate taxing authority or fails to remit to
Agent the required receipts or other required documentary evidence, Borrower
shall indemnify Agent and Lenders for any incremental taxes, interest or
penalties that may become payable by Agent or either Lender as a result of any
such failure.
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The agreement in this Section 3.9(b) shall survive the termination of this
Agreement and the payment of all or Borrower's Liabilities for two years.
(c) Any amounts payable pursuant to this Section 3.9 with respect to any
Construction Loan shall be secured by each of the Loan Documents executed and
delivered by Borrower with respect to such Construction Loan.
ARTICLE 4
GENERAL CONDITIONS OF FACILITY AND OF EACH CONSTRUCTION LOAN
4.1 CONDITIONS TO FACILITY: Neither Lender shall have any obligation to
make any Construction Loans hereunder until each Lender has received and
approved the following documents:
(a) ORGANIZATIONAL AND APPROVAL DOCUMENTS:
(1) a Certificate of the Secretary of Borrower, including and
certifying (i) the Articles of Incorporation (certified by the
Illinois Secretary of State) and By-Laws of the Borrower, (ii)
resolutions of the Board of Directors of Borrower authorizing the
execution and delivery of this Agreement, the Intercreditor Agreement,
and the Centerpoint Properties Line of Credit Documents, and (iii) the
identity of, and the signatures of, the officers of Borrower; and
(2) a Certificate of Good Standing for Borrower from the
Illinois Secretary of State.
(3) a Certificate of the Secretary of Centerpoint Properties,
including and certifying (i) the Declaration of Trust (certified by
the Maryland State Department of Assessments and Taxation) and ByLaws
of Centerpoint Properties, (ii) resolutions of the Trustees of
Borrower authorizing the execution and delivery of the Intercreditor
Agreement and the Centerpoint Properties Line of Credit Documents, and
(iii) the identity of, and the signatures of, the officers of
Centerpoint Properties; and
(4) a Certificate of Good Standing for Centerpoint Properties
from the Maryland State Department of Assessments and Taxation.
(5) a Certificate of the Secretary of Centerpoint Realty,
including and certifying (i) the Articles of Incorporation (certified
by the Illinois Secretary of State) and By-Laws of the Borrower, (ii)
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resolutions of the Board of Directors of Centerpoint Realty authorizing the
execution and delivery of the Intercreditor Agreement, and (iii) the
identity of, and the signatures of, the officers of Centerpoint Properties;
and
(2) a Certificate of Good Standing for Centerpoint Realty from
the Illinois Secretary of State.
(b) INTERCREDITOR AGREEMENT: The Intercreditor Agreement, executed by
Borrower, Centerpoint Properties and Centerpoint Realty.
(c) LEGAL OPINION: An opinion of Borrower's, Centerpoint Properties' and
Centerpoint Realty's independent counsel in form and content reasonably
satisfactory to Lenders.
(d) UCC SEARCHES: Uniform Commercial Code, federal and state tax lien and
pending litigation and judgment searches for the Borrower, dated not earlier
than thirty (30) days prior to the date of this Agreement, disclosing no matters
objectionable to Lenders.
(e) FINANCIAL STATEMENTS: The most recent financial statements of
Borrower and Centerpoint Properties, all as of a recent date and all certified
as true, accurate and complete by the party concerned, such financial statements
to include all contingent liabilities, including, without limitation,
indebtedness guaranteed.
(f) CENTERPOINT PROPERTIES LINE OF CREDIT: Certified copies of the Loan
Agreement and Promissory Note, in the form of Exhibits A and B to the
Intercreditor Agreement, respectively (the "Centerpoint Properties Line of
Credit Documents"), establishing a $1,000,000.00 line of credit from Centerpoint
Properties for the benefit of Borrower (the "Centerpoint Properties Line of
Credit").
(g) OTHER DOCUMENTS: Such other documents and instruments as reasonably
may be required by Lenders and are not otherwise described in this Agreement.
4.2 CONDITIONS TO INDIVIDUAL CONSTRUCTION LOANS: Neither Lender shall be
obligated to make any requested Construction Loan unless each Lender shall have
received and approved, in each Lender's sole and absolute discretion, the
following:
(a) a Project Addendum, in the form of Exhibit A attached hereto.
(b) the Notes, in the form of Exhibits B-1 and B-2 attached hereto, each
in one-half of the stated principal amount of the Loan Amount as approved by
Lenders.
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(c) a Mortgage, in the form of Exhibit C attached hereto, encumbering the
Mortgaged Premises.
(d) an Assignment of Leases and Rents, in the form of Exhibit D attached
hereto, encumbering the Real Estate.
(e) a Security Agreement, in the form of Exhibit E attached hereto.
(f) UCC-1 and UCC-2 Financing Statements, in the form of Exhibit F
attached hereto.
(g) an Environmental Indemnity Agreement, in the form of Exhibit G
attached hereto.
(h) a Waiver of Defenses, in the form of Exhibit H attached hereto.
(i) an Assignment of Contractor's Agreement with the consent of
Contractor, in the form of Exhibit I attached hereto.
(j) an Assignment of Architect's Agreement with the consent of Architect,
in the form of Exhibit J attached hereto; provided, however, if the Architect is
retained by the Contractor instead of the Borrower, the foregoing assignment
shall be waived.
(k) an Architect's Certificate in the form of Exhibit K attached hereto;
provided, however, if the Architect is retained by the Contractor instead of the
Borrower, Borrower shall be required to use its best efforts to obtain the
Architect's Certificate.
(l) an Assignment of Plans and Specifications in the form of Exhibit L
attached hereto.
(m) a General Assignment in the form of Exhibit M attached hereto.
(n) in the event the Project involves the services of an Engineer, an
Assignment of Engineer's Agreement with the consent of Engineer, in the form of
Exhibit N attached hereto; provided, however, if the Engineer is retained by the
Contractor instead of the Borrower, the foregoing assignment shall be waived.
(o) in the event the Project involves the services of an Engineer, an
Engineer's Certificate in the form of Exhibit O attached hereto; provided,
however, if the Engineer is retained by the Contractor instead of the Borrower,
Borrower shall be required to use its best efforts to obtain the Engineer's
Certificate.
(p) an Assignment of Put Option Agreement, together with the consent of
Centerpoint Properties to the assignment of
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Borrower's rights under the Put Option Agreement, in the form of Exhibit P
attached hereto.
(q) a FIRPTA Affidavit, in the form of Exhibit Q attached hereto.
(r) an opinion of Borrower's counsel, in the form of Exhibit R attached
hereto.
(s) an opinion of counsel to Centerpoint Properties, in the form of
Exhibit S attached hereto.
(t) a Construction Loan Escrow Trust and Disbursing Agreement, in the form
of Exhibit T attached hereto.
(u) a Put Option Agreement, executed by Borrower and Centerpoint
Properties, in the form of Exhibit U hereto.
(v) a Deed in Lieu of Foreclosure Agreement, in the form of Exhibit V
hereto (a "Deed Agreement"), and all documents contemplated thereby, including a
deed to the Real Estate to the lenders or the nominee or nominees of the
Lenders.
(w) PROJECT DESCRIPTION: A complete description of the Project, including
all Improvements.
(x) TITLE REPORT: A commitment from the Title Company, dated as of the
recording date of the Mortgage, to issue its standard form of ALTA mortgagee's
construction loan title policy to Agent in the Loan Amount with a Pending
Disbursement Endorsement, a modified 3.1 Zoning Endorsement with parking
coverage (deleting the marketability exception), a modified Comprehensive 1
Endorsement, Variable Rate Endorsement, Access Endorsement, Survey Endorsement,
Utility Facility Endorsement, Creditor's Rights Endorsement deleting the
Creditor's Rights exclusion, and such other endorsements as the Agent shall
specify, such policy showing title to the Real Estate in the Borrower and
insuring the Mortgage as a first lien without encroachments or prior right of
others on the Real Estate, subject only to the Permitted Exceptions, the
disbursement of the Loan, standard objections which cannot be cured until
completion of the Improvements (but no exception for matters of survey or
mechanic's or materialmens' liens or rights to liens shall appear), and such
other exceptions and objections as are satisfactory to Lenders in Lenders' sole
discretion.
(y) SURVEY: A Plat of Survey, in triplicate, of the Real Estate and all
perimeter roads serving the Real Estate made by a Surveyor licensed in the State
of Illinois showing the legal description of the Real Estate, access to and from
the Real Estate to a dedicated roadway, all discrepancies, conflicts,
encroachments, improvements, overlapping of improvements, roadways, easements,
fences, apparent travel ways, water courses and apparent
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disposal sites, that are either of record, apparent or may be discovered by
visible inspection. Such Plat of Survey shall be certified to Agent, each
Lender, Borrower, and the Title Company as having been prepared in accordance
with the Minimum Standard Detail Requirements for an Urban survey jointly
established and adopted by the American Land Title Association and the American
Congress on Surveying and Mapping in 1992 and shall further certify that no
portion of the Real Estate (other than as may be approved by the Lenders) lies
within the 100 year flood plan or any area having special flood hazards as
designated by Federal Emergency Management Agency. The Plat of Survey shall be
updated upon completion of the foundation of the Improvements to show no
violations of set back or front, side or rear yard requirements.
(z) ASSURANCES: Such documents, opinions, and assurances as the Lenders
shall reasonably deem necessary or appropriate to evidence the truthfulness of
the representations and warranties contained herein and the observance of the
covenants contained herein; including without limitation such evidence as
Lenders deem necessary to indicate complete compliance with all requirements of
any Governmental Authority with respect to the construction of the Improvements
and the use thereof for their intended purposes to the extent that such consents
may be obtained prior to completion of construction.
(aa) SOIL TESTS: Soil tests and engineering studies confirming that the
soil type and compactibility, sub-soil conditions and water levels are suitable
and sufficient for construction of the Project in accordance with the Plans and
Specifications, and that no special preparation of any nature will be required
with respect to any of the Real Estate except as contemplated by the Project
Budget.
(ab) INSURANCE: Insurance certificates (Acord Form 27 as to casualty
insurance) together with copies of policies, with prepaid premiums, from
companies, with coverage, in amounts and containing additional insured or
mortgagee's loss payable clauses, as applicable, all as provided in Article 8
hereof.
(ac) APPRAISAL: An appraisal prepared on behalf of Lenders in accordance
with the requirements of the Financial Institutions Reform, Recovery and
Enforcement Act of 1989 ("FIRREA"), prepared by an independent third party
appraiser holding an MAI designation, who is state licensed or state certified
if required under the laws of the state where the Real Estate is located, who
meets the requirements of FIRREA and who has at least ten (10) years real estate
experience appraising properties of a similar nature and type as the Real Estate
and who is otherwise satisfactory to Lenders, and otherwise in form and content
satisfactory to Lenders in Lenders' absolute discretion, evidencing that the
Loan Amount is not greater than ninety percent (90%) of the value of the
Project,
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assuming construction of the Project in accordance with the Plans and
Specifications.
(ad) PROJECT BUDGET: The Project Budget, together with the closing
statement for the purchase of the Real Estate (or, if the closing has not yet
occurred, the purchase contract), and any additional supporting data for the
Project Budget reasonably requested by Lenders.
(ae) ENVIRONMENTAL REPORT: One or more environmental reports, including a
Phase I environmental report, prepared by an environmental engineering firm
acceptable to Lenders in Lenders' reasonable discretion, certified to Agent and
each Lender, in form and content satisfactory to Lenders in Lenders' reasonable
discretion.
(af) ZONING: Satisfactory evidence (which may be in the form of a modified
3.1 Zoning Endorsement with parking coverage issued by the Title Insurer) that
the Real Estate is properly zoned to permit the construction and operation of
the Project as contemplated by this Agreement.
(ag) AGREEMENTS: A certified copy of the fully executed Architect's
Agreement, Construction Contract, and, if applicable, Engineer's Agreement, each
in form and content, and with a Person, satisfactory to Lenders in Lenders'
reasonable discretion. In the event no written contract exists with the
Architect, or, if applicable, the Engineer, Borrower shall provide in writing to
Lenders the name of the Architect, or, if applicable, the Engineer, and the
terms of the oral agreement with such professional. Each Construction Contract
shall provide for the completion of the Improvements for a guaranteed maximum
price.
(ah) LEASES: Copies of all Leases, if any, of all or any portion of the
Project, together with cash flow projections for the Project for a period
coinciding with the term of the Lease with the longest term.
(ai) TENANT FINANCIAL STATEMENTS: If available, financial statements for
at least the last two fiscal years, together with any interim financial
statements from and after the most recent fiscal year statement, of each tenant
under each Lease.
(aj) TENANT SUBORDINATION AGREEMENTS AND ESTOPPEL CERTIFICATES: At the
request of Lenders, tenant subordination agreements and estoppel certificates,
in form and content acceptable to Lenders, for all Leases, if any. Lenders
agree that Lenders shall not require a tenant subordination agreement with
respect to any Lease containing substantially all of the provisions on Schedule
2 attached hereto.
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(ak) LICENSES: Copies of all licenses and building permits necessary for
construction and completion of the Improvements and all other permits and
licenses required for construction, use and operations of the Improvements
(except those permits and licenses which by their nature cannot be obtained
until completion of the Work), together with a collateral assignment of all
licenses, permits, consents, authorizations and utility installation and service
agreements.
(al) PLANS AND SPECIFICATIONS: Copies of final, detailed Plans and
Specifications for the Improvements and, if Engineering Plans and Specifications
exist, the Site Improvements, which shall be subject to prior approval by
Lenders and Agent's Construction Consultant. Such Plans and Specifications
shall have all required approvals noted thereon by the Municipality, and by any
other necessary governmental authority or agency, that such Plans and
Specifications satisfy the terms of any agreements, ordinances, regulations or
requirements applicable to the Project. Borrower will not cause or allow any
changes or modifications in the Plans and Specifications (or Engineering Plans
and Specifications) or any deviations therefrom which would materially adversely
affect the scope or quality of the Project without the prior written consent of
Lenders and all necessary Official Bodies.
(am) FLOOD HAZARD: Evidence satisfactory to Lenders that the Project is
not located in an area designated by the Secretary of Housing and Urban
Development as having special flood hazards, or if it is so located, evidence
that flood insurance is in effect, which insurance shall be satisfactory to
Lenders in Lenders' absolute discretion.
(an) UCC SEARCHES: Uniform Commercial Code, federal and state tax lien,
bankruptcy, pending litigation and judgment searches for the Borrower,
disclosing no matters objectionable to Lenders; provided, however, that if such
searches have been delivered to Lenders within the six month period prior
immediately prior to the initial Advance, Borrower may deliver updates of such
searches covering the period from and after the date of the searches previously
delivered.
(ao) SWORN STATEMENTS: A sworn statement listing the amount and nature of
the various costs to be paid from the proceeds of the Construction Loan, and
disclosing the various contracts entered into by the Borrower for the furnishing
of labor, materials, work or services for the Improvements, which statement
shall set forth as to each contract the name and address of the person with whom
said contract was made, the labor, materials, work, services or other items to
be furnished pursuant to such contract, the amount of such contract, the amount
paid to date, if any, and the balance due or to become due.
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(ap) CONTRACTOR AFFIDAVIT: A sworn contractor's statement, to be submitted
to each Lender and Agent's Construction Consultant, executed by the Contractor,
reflecting the trade-by-trade, dollar-by-dollar, breakdown of the costs of
construction, and setting forth the names of all subcontractors, materialmen and
suppliers, and the portions of the work to be done or the material to be
furnished by each such person, the amounts of each contract with each such
person, the amounts, if any, theretofore paid to each or any of them and the
sums due or to become due to each of them, which contractor's statement shall be
prepared in form satisfactory to Lender and to the Title Company, and shall
fully comply with the mechanic's lien law of the State of Illinois, and if the
Borrower has entered into more than one general (or direct) contract, such a
sworn contractor's statement for each such contract and contractor shall be
furnished, and if any subcontractor or materialman has entered into further
subcontracts or material contracts, such a sworn contractor's statement from
said subcontractor or materialman shall be furnished.
(aq) UTILITY AVAILABILITY LETTERS: Letters from appropriate utility
companies and municipalities assuring the availability of water, sewer,
electric, and gas service to the Project, or a certificate from the Architect
that all such utilities are available.
(ar) REPORT OF AGENT'S CONSTRUCTION CONSULTANT: a report by Agent's
Construction Consultant, including (i) an analysis acceptable to Lenders of
proposed construction costs, and concluding that the Project Budget provides
sufficient funds to complete the Project as proposed, (ii) a review and approval
of the Plans and Specifications and, if applicable, the Engineering Plans and
Specifications, and (ii) if the Work has commenced, an inspection report
certifying the percentages of completion of the components of the Work, setting
forth the amount authorized for disbursement, and reviewing such other matters,
including compliance with the Plans and Specifications and, if applicable, the
Engineering Plans and Specifications, as Lender may require.
(as) SUBCONTRACTS: At the request of Lenders, copies of subcontracts or
fixed-price bids on major portions of the Work on the Project which are not
included within the scope of the general construction contract and which exceed
$50,000. Each of the aforesaid major subcontracts shall be on Borrower's
standard form of subcontract.
(at) EVIDENCE OF EQUITY CONTRIBUTION. Evidence satisfactory to Lenders
that Borrower has invested, or has available for contribution, the amount of
equity required by the Project Budget. Such equity may be in the form of (i)
the Real Estate and evidenced by the purchase price paid by Borrower for the
Real Estate as shown on the closing statement for the purchase of the Real
Estate between the Borrower and the seller of the Real Estate, or (ii)
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Project Loans or advances under the Centerpoint Properties Line of Credit.
(au) ORGANIZATIONAL AND APPROVAL DOCUMENTS:
(1) a Certificate of the Secretary of Borrower, certifying (i)
that there has been no change in the articles of incorporation or
By-Laws of the Borrower since the last Secretary's certificate
provided by Borrower to Lenders, or attaching (certified, in the case
of the Articles of Incorporation, by the Illinois Secretary of State)
such documents if any modification has occurred, (ii) resolutions of
the Board of Directors of Borrower authorizing the execution and
delivery of the Loan Documents for the Construction Loan and the entry
of Borrower into the Construction Loan, and (iii) the identity of, and
the signatures of, the officers of Borrower; and
(2) a Certificate of Good Standing for Borrower from the
Illinois Secretary of State.
(av) OTHER DOCUMENTS: Such other documents, instruments and opinions of
counsel as reasonably may be required by Lenders and are not otherwise described
in this Agreement.
4.3 CONDITIONS TO FIRST ADVANCE OF EACH CONSTRUCTION LOAN: Neither Agent
nor any Lender shall be obligated to make the first Advance of any Construction
Loan unless Lenders shall have received and shall have approved each of the
documents and instruments required under Section 4.2 hereof prior to the
requested disbursement date for such first Advance.
4.4 CONDITIONS TO SUBSEQUENT ADVANCES OF EACH CONSTRUCTION LOAN: The
Lenders' obligation to make any Advance after the first Advance of any
Construction Loan shall be subject to the continued satisfaction of the
conditions set forth in Section 4.2 hereof with respect to such Construction
Loan and to the satisfaction of the following conditions:
(a) The Lenders shall have received the following, in form and content
acceptable to the Lenders, at least ten (10) days prior to the requested
disbursement date:
(1) A written request from the Borrower requesting the Advance and
approving the affidavits, certificates and contractor's statements tendered
in support of such Advance, and either stating that no additional contracts
have been entered into by the Borrower for items payable from such
Construction Loan since the date of the sworn statement furnished pursuant
to Section 4.2(ao) hereof or describing all
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such additional contracts in the manner required by said Section;
(2) Current Sworn Contractor's Statements in conformance with the
requirements of Section 4.2(ap) hereof;
(3) Waivers of lien from each contractor, subcontractor and
materialman on whose behalf funds are sought for payment, all of which
waivers shall comply with the mechanic's lien law of the State of Illinois
and shall conform to the requirements of the Title Company; provided,
however, that in the event the Title Company shall agree to provide full
mechanics' lien coverage for the Work paid for by such Advance, such lien
waivers may be delivered up to thirty days after the date of such Advance,
but in no event shall any additional Advance be made prior to the delivery
of lien waivers for all Work paid for by the preceding Advance;
(4) Invoices for all costs and expenses for which funds are sought
for reimbursement and which are attributable to costs and expenses other
than work done or materials supplied by contractors, subcontractors or
materialmen;
(5) Written certification from Agent's Construction Consultant
setting forth the following:
(i) That the amount of all disbursements for labor, services,
work and materials (including the disbursement then requested) does
not exceed ninety percent (90%) of the value, based upon contract
prices and including contractor overhead and profit, of the labor,
services, work and materials rendered to and incorporated in the
applicable Improvements and materials stored on the applicable Real
Estate, and that such on-site materials are reasonably necessary for
the progress of construction;
(ii) That the undisbursed proceeds of such Construction Loan
are sufficient to complete the applicable Project in accordance the
applicable Plans and Specifications and the applicable Engineering
Plans and Specifications, if any;
(ii) That the workmanship of all work on the applicable
Improvements is good and the materials in place are of good quality;
(iii) That the applicable Improvements are being constructed in
accordance with the applicable Plans and Specifications and the
applicable Engineering Plans and Specifications, if any; and
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(iv) That the construction, to the date of the issuance of the
certificate, complies with all applicable building codes, regulations
and ordinances;
(6) A Date Down Endorsement to the applicable Title Policy to cover
such Advance, which endorsement shall show no encumbrances other than
Permitted Exceptions for such Construction Loan;
(7) An Interim Mechanic's Lien Endorsement to the applicable Title
Policy to cover such Advance;
(8) Such additional evidence as may be requested by the Lenders to
demonstrate that the reserves established in the applicable Project Budget
are adequate for the purposes for which they were established, and that
such Construction Loan is in balance in accordance with Section 3.3(d)
hereof; and
(9) Such additional certificates and documents, opinions, and
assurances as the Lenders shall reasonably deem necessary or appropriate to
evidence the continued accuracy of the representations and warranties
contained in Article 5 hereof and, with respect to such Construction Loan,
Article 6 hereof, and the observance and performance of the covenants
contained in Article 7 hereof and, with respect to such Construction Loan,
Article 8 hereof.
(b) No Facility Default or Facility Event of Default shall have occurred
and be continuing hereunder, and, with respect to such Construction Loan, no
Project Default or Project Event of Default shall have occurred and be
continuing.
Each request to the Lenders by Borrower for an Advance shall constitute
Borrower's certification that the representations and warranties contained in
Article 5 hereof and, with respect to such Construction Loan, Article 6 hereof,
are true and correct as of the date of such request, Borrower's certification
that Borrower is in compliance with the terms and conditions of this Agreement,
and Borrower's representation and warranty to Lenders, with respect to the
applicable Work, materials and other items for which payment is requested that
(except as otherwise permitted): (i) such Work and materials have been
incorporated into the applicable Project or delivered to the applicable Real
Estate, free of liens and encumbrances; (ii) the value thereof is as estimated
therein; (ii) such Work and materials substantially conform to the approved
applicable Plans and Specifications (and, the applicable Engineering Plans and
Specifications, if any), and to the requirements of this Agreement, the
applicable Put Option Agreement, each Lease of all or any portion of the
applicable Project, and all applicable statutes, laws, ordinances, rules and
regulations; and (iv) the requisitioned value of such Work and
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materials and the amounts of all other items of cost for which payment is
requested by Borrower have theretofore been in fact paid for in cash by Borrower
or the same are then due and owing by Borrower. Approval by Agent and Lenders
of requests for Advances shall not constitute an acceptance by Agent or any
Lender of the Work, materials or other items of cost for which payment is
requested by the Borrower except to the extent that the facts contained in the
Borrower's requests for advances are actually as so represented and warranted.
4.5 CONDITIONS PRECEDENT TO FINAL ADVANCE OF EACH CONSTRUCTION LOAN: The
Lenders shall not be obligated to make the final advance of any Construction
Loan until the following conditions have been satisfied:
(a) All conditions precedent to subsequent advances with respect to such
Construction Loan specified in Section 4.4 hereof shall be satisfied with
respect to said last Advance;
(b) Agent's Construction Consultant shall have certified that the
applicable Improvements have been completed, with the exception of punch list
items, in accordance with the applicable Plans and Specifications and the
applicable Engineering Plans and Specifications, if any;
(c) Agent shall have received a final Title Policy conforming to the
requirements of Section 4.2(x) hereof, except that a Zoning 3.1 endorsement
shall be substituted for the modified Zoning 3.1 endorsement, a Comprehensive 1
endorsement shall be substituted for the modified Comprehensive 1 endorsement,
and any other endorsements previously issued in modified form by reason of the
fact that construction of the Improvements was not complete shall be issued in
standard unmodified form;
(d) Borrower shall have delivered to each Lender copies of all deliveries
required to be made to Centerpoint Properties to establish "Substantial
Completion" pursuant to Section 5f. of the applicable Put Option Agreement; and
(e) Centerpoint Properties shall have delivered to Borrower, Agent and
each Lender written acknowledgment that "Substantial Completion," as defined in
Section 5f. of the applicable Put Option Agreement, has occurred.
4.6 LOCATION OF PROJECT. In the event Lenders shall, in their sole and
absolute discretion, approve a request from Borrower for a Construction Loan in
connection with a proposed Project located outside of the State of Illinois,
Lenders may condition such approval upon such terms and conditions as Lenders
may deem necessary or appropriate, including but not limited to the modification
of one or more of the forms of Loan Documents attached
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hereto to reflect the laws of the state in which such proposed Project is
located.
ARTICLE 5
FACILITY REPRESENTATIONS, WARRANTIES AND COVENANTS
5.1 In order to induce Lenders and Agent to execute this Agreement and to
induce the Lenders to make available the Facility, Borrower hereby represents,
warrants and covenants to the Agent and the Lenders that:
(a) ORGANIZATION AND QUALIFICATION. Borrower is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Illinois and has full corporate power to own, operate and lease its
properties and to carry on its business as now conducted. Borrower is duly
qualified to do business as a foreign corporation and is in good standing in
each jurisdiction in which such qualification is required for the conduct of
Borrower's business. All of the issued and outstanding shares of stock of
Borrower are held by Centerpoint Realty.
(b) EXECUTIVE OFFICES. The location of Borrower's chief executive office
and principal place of business, and other offices and places of business is
1808 Swift Road, Oak Brook, Illinois, provided that such location may be changed
by Borrower upon the delivery of a notice of such change in accordance with
Article 9 hereof.
(c) CORPORATE POWER; AUTHORIZATION. The execution, delivery and
performance by Borrower of this Agreement, and the entry of Borrower into
Construction Loans in accordance with the terms of this Agreement: (i) are
within Borrower's corporate power; (ii) have been duly authorized by all
necessary or proper corporate action; (iii) are not in contravention of any
provision of the Articles of Incorporation or By-Laws of Borrower; (iv) will not
violate any law or regulation, or any order or decree of any court or
governmental instrumentality, affecting or binding upon Borrower; (v) will not
conflict with or result in the breach or termination of, constitute a default
under or accelerate any performance required by, any indenture, mortgage, deed
of trust, lease, agreement or other instrument to which Borrower is a party or
by which Borrower or any of its property is bound; (vi) will not result in the
creation or imposition of any Lien upon any of the property of Borrower; and
(vii) do not require the consent or approval of any Person.
(d) CENTERPOINT PROPERTIES. Centerpoint Properties is a real estate
investment trust duly organized, validly existing and in good standing under the
laws of the State of Maryland and has full trust power to own, operate and lease
its properties and to
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carry on its business as now conducted. Centerpoint Properties is duly
qualified to do business and is in good standing in each jurisdiction in which
such qualification is required for the conduct of Centerpoint Properties'
business. Centerpoint Properties is not required, under Illinois law, to
qualify to do business in the State of Illinois. The entry by Centerpoint
Properties into the Intercreditor Agreement, the Centerpoint Properties Line of
Credit Documents, and Put Option Agreements in connection with each Project as
contemplated by this Agreement is within Centerpoint Properties' trust power,
has been duly authorized by all necessary or proper trust action, and does not
require the consent or approval of any Person. The execution, delivery and
performance by Borrower of this Agreement, the entry of Borrower into
Construction Loans in accordance with the terms of this Agreement, and the entry
by Centerpoint Properties into the Intercreditor Agreement, the Centerpoint
Properties Line of Credit Documents and Put Option Agreements in connection with
each Project as contemplated by this Agreement: (i) are not in contravention of
any provision of the Declaration of Trust or By-Laws of Centerpoint Properties;
(ii) will not violate any law or regulation, or any order or decree of any court
or governmental instrumentality, affecting or binding upon Centerpoint
Properties; (iii) will not conflict with or result in the breach or termination
of, constitute a default under or accelerate any performance required by, any
indenture, mortgage, deed of trust, lease, agreement or other instrument to
which Centerpoint Properties is a party or by which Centerpoint Properties or
any of its property is bound; and (iv) will not result in the creation or
imposition of any Lien upon any of the property of Centerpoint Properties.
(e) CENTERPOINT REALTY. Centerpoint Realty is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Illinois and has full corporate power to own, operate and lease its
properties and to carry on its business as now conducted. Centerpoint Realty is
duly qualified to do business as a foreign corporation and is in good standing
in each jurisdiction in which such qualification is required for the conduct of
Centerpoint Realty's business. The entry by Centerpoint Realty into the
Intercreditor Agreement is within Centerpoint Realty's corporate power, has been
duly authorized by all necessary or proper corporate action, and does not
require the consent or approval of any Person. The execution, delivery and
performance by Borrower of this Agreement, the entry of Borrower into
Construction Loans in accordance with the terms of this Agreement, and the entry
by Centerpoint Realty into the Intercreditor Agreement: (i) are not in
contravention of any provision of the Articles of Incorporation or By-Laws of
Centerpoint Realty; (ii) will not violate any law or regulation, or any order or
decree of any court or governmental instrumentality, affecting or binding upon
Centerpoint Realty; (iii) will not conflict with or result in the breach or
termination of, constitute a default under or accelerate any performance
required by, any
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indenture, mortgage, deed of trust, lease, agreement or other instrument to
which Centerpoint Realty is a party or by which Centerpoint Realty or any of its
property is bound; and (iv) will not result in the creation or imposition of any
Lien upon any of the property of Centerpoint Realty.
(f) EXECUTION AND BINDING EFFECT. This Agreement has been duly and
validly executed and delivered by Borrower, constitutes the legal, valid and
binding obligation of Borrower enforceable in accordance with the terms hereof,
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights and except
as may be limited by the exercise of judicial discretion in applying general
principles of equity (regardless of whether considered in a proceeding in equity
or at law). Each Note and other Loan Document entered into in connection with
each Construction Loan will, as of the date any such document is delivered to
Agent, have been duly and validly executed and delivered by Borrower and will
constitute the legal, valid and binding obligation of Borrower enforceable in
accordance with the terms thereof, except as such enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights and except as may be limited by the exercise of judicial
discretion in applying general principles of equity (regardless of whether
considered in a proceeding in equity or at law).
(g) AUTHORIZATIONS AND FILINGS. With the exception of (i) the recording
of Mortgages and Assignments of Leases and Rents, and (ii) the filing of UCC
Financing Statements, in each case in connection with individual Construction
Loans, no authorization, consent, approval, license, exemption or other action
by, and no registration, qualification, designation, declaration or filing with,
any Governmental Authority (other than obtaining permits required for the
construction of each Project) is or will be necessary in connection with
execution, performance and delivery of this Agreement, any Note or other Loan
Document entered into in connection with any Construction Loan, consummation of
the transactions herein or therein contemplated, performance of or compliance
with the terms and conditions hereof or thereof, or to ensure the legality,
validity, and enforceability hereof or thereof.
(h) FINANCIAL STATEMENTS; FINANCIAL CONDITION, ETC. The financial
statements delivered pursuant to Section 4.1(e) or otherwise were prepared in
accordance with GAAP consistently applied and fairly present the financial
condition and the results of operations of Borrower on the dates and for the
periods covered thereby, except as disclosed in the notes thereto and, with
respect to interim financial statements, subject to normally recurring year-end
adjustments. Borrower has no material liability (contingent or otherwise) not
reflected in such financial statements or in the notes thereto. Since the date
of such
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financial statements, there has been no adverse change in any condition, fact,
circumstance or event that could reasonably be expected to have a Material
Adverse Effect.
(i) NO DEFAULT. Borrower is not in default under or with respect to any
contract, agreement, lease or other instrument, including any contract,
agreement, lease or other instrument relating to indebtedness for borrowed money
to which Borrower is a party, except for any default which (either individually
or collectively with other defaults arising out of the same event or events)
could not reasonably be expected to have a Material Adverse Effect. No Default
or Event of Default has occurred and is continuing hereunder.
(j) BROKERS. Borrower represents and warrants that no brokers or finders
were used in connection with procuring the financing contemplated hereby.
Borrower hereby agrees to indemnify and save Agent and each Lender harmless from
and against any and all liabilities, losses, costs and expenses (including
attorneys' fees or court costs) suffered or incurred by Agent, LaSalle or USBank
as a result of any claim or assertion by any party claiming by, through or under
Borrower, that it is entitled to compensation in connection with the financing
contemplated hereby.
(k) JUDGMENTS. There are no judgments, decrees, or orders of any kind
against Borrower unpaid of record which would materially or adversely affect the
ability of Borrower to comply with its obligations under this Agreement or any
Construction Loan in a timely manner or would otherwise reasonably be expected
to result in a Material Adverse Effect. There are no federal tax claims or
liens asserted or filed against Borrower or any related entity, or any principal
thereof, and there are no material judgments against Borrower unsatisfied of
record or docketed in any court of located in the United States and no petition
in bankruptcy or similar insolvency proceeding has ever been filed by or against
Borrower, and Borrower has never made any assignment for the benefit of
creditors or taken advantage of any insolvency act or any act for the benefit of
debtors.
(l) FINANCIAL ACCOUNTING PRACTICES. Borrower makes and keeps books,
records and accounts which, in reasonable detail, accurately and fairly reflect
its transactions and dispositions of its assets and maintains a system of
internal accounting controls sufficient to provide reasonable assurances that
(a) transactions are executed in accordance with management's general or
specific authorization, (b) transactions are recorded as necessary (i) to permit
preparation of financial statements in conformity with GAAP and (ii) to maintain
accountability for assets, (c) access to assets is permitted only in accordance
with management's general or specific authorization and (d) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
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(m) REGULATION U. Borrower's execution and delivery of this Agreement, or
any Loan Document executed in connection with any Construction Loan, does not
and will not directly or indirectly violate or result in a violation of Section
7 of the Securities and Exchange Act of 1934, as amended to date, or any
regulations issued pursuant thereto, including, without limitation, regulations
G, U, T and X of the Board of Governors of the Federal Reserve System, and
Borrower does not own any "margin stock," within the meaning of said
regulations, nor is Borrower engaged in the business of extending credit to
others for such purpose, and no part of the proceeds of any borrowing hereunder
will be used to purchase or carry any "margin stock" or to extend credit to
others for the purpose of purchasing or carrying any "margin stock."
(n) PERMITS. Other than Permits required for the construction of the
Projects, Borrower owns or possesses, and is current and in good standing with
respect to, all permits, licenses or registrations as are necessary to be
obtained in connection with the operation of Borrower's business as heretofore
and now conducted and to own or lease and operate the properties now owned or
leased by it.
(o) LITIGATION. As of the date hereof, there is no action, suit,
proceeding, government investigation or arbitration (collectively
"Proceedings"), whether or not purportedly on behalf of Borrower, at law or in
equity or before or by any Federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, pending or threatened in writing against or affecting Borrower or any
property of Borrower.
(p) SOLVENCY. Borrower is Solvent as of the date hereof, and will be
Solvent at all times thereafter prior to the later of the Facility Maturity Date
and the repayment in full of all of Borrower's Liabilities.
(q) INDEBTEDNESS. As of the date hereof, except for trade payables
arising in the ordinary course of business and the Asset Transfer Indebtedness
(as defined in the Intercreditor Agreement) to Centerpoint Properties, Borrower
has no Indebtedness, including without limitation, any letters of credit.
Borrower is not in default in the payment when due of any Indebtedness, and,
since the date of the most recent audited financial statements delivered to the
Lender, Borrower's accounts payable have been paid in a manner acceptable to its
suppliers and creditors and in a manner which does not threaten to disrupt the
business relationship between Borrower and its material suppliers and creditors.
(r) INVESTMENT BORROWER. The Borrower is not an "investment company" of a
company controlled by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
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(s) FULL DISCLOSURE. No representation or warranty made by Borrower under
this Agreement and no statement made by Borrower in any financial statement,
certificate, report, exhibit or document furnished by Borrower to the Agent
and/or any Lender pursuant to or in connection with this Agreement is false or
misleading in any material respect (including by omission of material
information necessary to make such representation, warranty or statement not
misleading). There is no fact which has not been disclosed to the Agent in
writing by Borrower which has a Material Adverse Effect or, to the best of the
Borrower's knowledge, will have a Material Adverse Effect on the assets,
business, profits or conditions (financial or otherwise) of the Borrower or the
ability of the Borrower to perform its obligations hereunder and under the Loan
Documents executed in connection with each Construction Loan.
(t) CENTERPOINT PROPERTIES LINE OF CREDIT DOCUMENTS. The copies of the
Centerpoint Properties Line of Credit Documents delivered by Borrower to Agent
are true, complete and correct copies of the Centerpoint Properties Line of
Credit Documents.
(u) YEAR 2000. Borrower and Centerpoint Properties have reviewed the
areas within their business and operations which could be adversely affected by,
and have developed or are developing a program to address on a timely basis, the
Year 2000 Problem, as hereinafter defined, and have made related appropriate
inquiry of material suppliers and vendors. Based on such review and program,
Borrower believes that the Year 2000 Problem will not have a Material Adverse
Effect on Borrower or Centerpoint Properties. From time to time, at the request
of Agent, Borrower shall provide to Agent such updated information or
documentation as is requested regarding the status of its and Centerpoint
Properties' efforts to address the Year 2000 Problem.
5.2 SURVIVAL OF FACILITY REPRESENTATIONS, WARRANTIES AND COVENANTS. It
shall be a condition to Borrower's right to obtain any Construction Loan, or to
receive any Advance under any Construction Loan, that all of the foregoing
representations, warranties and covenants shall be true and correct on the date
of the making of such Construction Loan or such Advance. All representations,
warranties, acknowledgments, covenants and agreements made in this Agreement or
in any certificate or other document delivered to the Agent and/or Lenders by
Borrower pursuant to or in connection with this Agreement shall be deemed to
have been relied upon by Agent and Lenders, notwithstanding any investigation
heretofore or hereafter made by Agent or Lenders or on their behalf (and
Borrower hereby acknowledges such reliance by Lenders in making each
Construction Loan and all Advances) and shall survive the making of any or all
of the Advances contemplated hereby and shall continue in full force and effect
until the later of the Facility Maturity Date and the repayment in full of all
of Borrower's Liabilities.
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ARTICLE 6
PROJECT REPRESENTATIONS, WARRANTIES AND COVENANTS
6.1 In order to induce Lenders and Agent to execute this Agreement and to
induce the Lenders to make available individual Construction Loans, Borrower
shall be deemed to represent and warrant to the Lenders, as of the date of the
first Advance of each Construction Loan and as of the date of each additional
Advance of such Construction Loan, as follows with respect to each Construction
Loan and each Project:
(a) TITLE: Borrower owns good and insurable fee simple title to the Real
Estate. The Real Estate is free and clear of all liens, claims and encumbrances
except the Permitted Exceptions. Subject to the terms and conditions contained
in this Agreement, Borrower shall construct the Improvements on the Real Estate.
(b) CONDITIONS: There is not any condition, event or circumstance
existing, or any litigation, arbitration, governmental or administrative
proceedings, actions, examinations, claims or demands pending or, to the
Borrower's knowledge, threatened, affecting Borrower, the Project or the use or
operation thereof, or which would prevent Borrower from complying with or
performing its obligations under this Agreement, the Notes or any of the other
Loan Documents within the time limits set forth therein for such compliance or
performance, and no basis for any such matter exists.
(c) UTILITIES: All utilities necessary for use, operation and occupancy
of the Project are available at the boundary of the Real Estate. All building,
zoning, safety, health, fire, water district, sewerage and environmental
protection agency permits and other licenses and permits which are required by
any Governmental Authority for construction of any Site Improvements and the
Improvements and the use, occupancy and operation of the Improvements in
accordance with the Plans and Specifications (and, if applicable, the
Engineering Plans and Specifications) therefor have been or will be obtained by
or furnished to Borrower prior to commencement of or completion of construction,
as applicable, and will be obtained and maintained in full force and effect by
Borrower as required by any Governmental Authority.
(d) COMPLIANCE WITH LAWS: Upon completion of construction of the
Improvements in accordance with the Plans and Specifications (and, if
applicable, the Engineering Plans and Specifications), the Improvements and use,
occupancy and operation of the Improvements will be in compliance in all
material respects with all applicable laws, statutes, ordinances, rules, orders
or regulations of any kind whatsoever (including without limitation, those
relating to environmental protection, water use, zoning, building, fire, health
or safety), any contractual arrangements with third parties (including but not
limited to the lessee under any Lease), and any
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covenants, conditions, easements, rights of way or restrictions of record.
Neither Borrower nor any agent of Borrower has received any notice, written or
otherwise, alleging any such violation. Upon completion of construction of the
Improvements in accordance with the Plans and Specifications (and, if
applicable, the Engineering Plans and Specifications), the Improvements will be
in full compliance with current zoning requirements, including without
limitation, those relating to setbacks, height, floor area ratio and percentage
of land coverage and will not be a non-conforming or special use. Borrower
shall obtain, prior to completion of the Improvements, all rights to off-site
facilities, if any, necessary to insure compliance by the Improvements with all
environmental protection, public highway, water use, zoning, building, fire,
health, safety or similar statutes, laws, ordinances, codes, rules, regulations,
orders and decrees;
(e) ARCHITECT: The Borrower or the Contractor has entered into the
Architect's Agreement with Architect pursuant to which Architect will perform
architectural services in connection with the design and construction of the
Improvements. Borrower has delivered to Lenders a true, complete and correct
copy of the Architect's Agreement. The Architect's Agreement is in full force
and effect, unamended, and no default exists thereunder by any party thereto.
(f) ENGINEER: If the Project will involve the services of an Engineer,
the Borrower or the Contractor has entered enter into the Engineer's Agreement
with Engineer pursuant to which Engineer perform engineering services in
connection with the design and construction of the Improvements. Borrower has
delivered to Lenders a true, complete and correct copy of the Engineer's
Agreement. The Engineer's Agreement is in full force and effect, unamended, and
no default exists thereunder by any party thereto.
(g) CONSTRUCTION CONTRACT: The Borrower has entered into the
Construction Contract with Contractor pursuant to which Contractor has agreed to
perform general contracting services in connection with the construction of the
Project. The Construction Contract is in full force and effect, unamended, and
no default exists thereunder by any party thereto.
(h) SUBCONTRACTS: The Contractor or the Borrower has prior to the date
hereof and will hereafter enter into subcontracts (all of said subcontracts
being hereinafter collectively referred to as the "Subcontracts") for the
performance of portions of the Work. Upon request, Borrower will deliver to
Lenders true, complete and correct copies of all Subcontracts over $50,000.00
together with all amendments thereto and, upon request, assignments thereof to
Lenders. The Subcontracts that have been entered into prior to the date hereof
are in full force and effect and, to Borrower's knowledge, no default exists
thereunder by any party thereto.
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(i) DEBT: Borrower has disclosed to Lenders all indebtedness outstanding
in connection with the Project.
(j) CONTRACTS: The Owner's Sworn Statement and the Contractor's
Affidavit, each as provided pursuant to Sections 4.2(ao) and 4.2(ap) and updated
as provided in Section 4.4(a)(1) and 4.4(a)(2), disclose all contracts of any
kind, either verbal or in writing, now in existence covering labor or materials
heretofore furnished or to be furnished in connection with the Project that are
incomplete or for which any sum is due or is to become due.
(k) BUDGET: Attached as Exhibit "C" to the Project Addendum is the
Project Budget, as approved by Lenders, which is a true, complete and correct
budget and forecast of all costs of the development of the Project, including
the cost of acquisition of the Real Estate, all Soft Costs and all Hard Costs.
Borrower will not make any changes in the Project Budget without the prior
written consent of Lenders.
(l) GOVERNMENTAL REQUIREMENTS: All permits, consents, approvals or
authorizations by, or registrations, declarations, or filings with, any
Governmental Authority necessary in connection with the valid execution,
delivery and performance of this Agreement, the Notes, the Mortgage, the other
Loan Documents, or presently necessary for the construction of the Improvements,
have been obtained, are valid, adequate and in full force and effect.
(m) ROADS AND EASEMENTS: All roads, easements and other necessary modes
of ingress or egress to the Real Estate necessary for the full utilization of
the Improvements for their intended purpose or for the construction thereof have
been or will be completed or obtained.
(n) ENVIRONMENTAL LAWS: To the best of Borrower's knowledge, the Project
and the use and operation thereof are in compliance in all material respects
with all applicable Environmental Laws, health and safety laws, rules and
regulations. To the best of the Borrower's knowledge (which for this purpose
shall mean all information known to Borrower based upon its review of the
Environmental Report, inspections of the Real Estate, and review of any other
reports and any other facts and information known to it) except as disclosed in
the Environmental Report or on Exhibit E to the Project Addendum: (i) the Real
Estate has never been used for a sanitary land fill, dump or for the disposal,
generation or storage of Hazardous Materials; (ii) no Hazardous Materials have
been deposited or are located in, under or upon the Real Estate or property
adjacent thereto and no part of the Real Estate is presently contaminated by any
Hazardous Materials; and (iii) no underground storage tanks are or have been
located on the Real Estate. Except as disclosed on Exhibit E to the Project
Addendum, no written notice has been received by Borrower or its agents of any
Hazardous Substance in, under or upon the Real Estate
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or any parcels adjacent thereto or of any violation of any Environmental Law
with respect to the Real Estate or any parcels adjacent thereto and, to the best
of Borrower's knowledge (as defined above), no facts exist which would provide a
basis for any such violation with respect to the Real Estate or any parcels
adjacent thereto.
(o) RIVERS: Except as disclosed in the Environmental Report, no part of
the Real Estate contains "waters of the United States," as defined in 33 CFR
328, that would be impacted by the Project or for which appropriate Permits have
not been obtained, and the Project will not include the discharging of dredged
or fill material into waters of the United States as such activity is described
and regulated by Section 404 of the Clean Water Act 33 U.S.C. Section 1344.
(p) TAXES: Except for the current, nondelinquent taxes, there are no
taxes, assessments or liens pending or threatened against the Real Estate for
any present or past due taxes or for paving, sidewalk, curbing, sewer or any
other street improvements of any kind, other than such taxes, assessments or
liens, if any, that are being contested in good faith and in accordance with
Section 11.2 hereof.
(q) HOMESTEAD: No portion of the Real Estate is or will be used as the
residential homestead of Borrower. The Real Estate does not constitute
residential or agricultural real estate within the meaning of the Illinois
Mortgage Foreclosure Law, 735 ILCS 5/15-1101 et seq.
(r) CONTRACTS: Exhibit "D" to the Project Addendum contains a true,
correct and complete list of all contracts, instruments and other agreements to
which Borrower or any Affiliate is a party, which relate to any portion of the
Project and which can reasonably be expected to have a value to any party
thereto in excess of $50,000,00. All such agreements are valid, enforceable and
in full force and effect and, to the best of Borrower's knowledge, there are no
existing defaults under or breaches of any of such agreements, nor any event or
condition which, with the giving of notice or lapse of time, or both, would
constitute a default under or breach of any of such agreements. No such
agreements contain any option to purchase the Property or any portion thereof.
(s) LEASES: Borrower has delivered to Lenders true, complete and correct
copies of each Lease. Each Lease is unmodified and in full force and effect; no
default exists under any Lease and no Lease shall not be modified in any
material respect without Lenders' prior, written approval, which approval shall
not be unreasonably withheld or delayed; provided, however, that following
notice to Lender, a Lease may be modified to provide for an
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increase in rent to compensate Borrower for any increase in the costs of
construction of the improvements requested by the tenant.
(t) PUT OPTION AGREEMENT: Borrower has delivered to Lenders a true,
complete and correct copy of the Put Option Agreement. The Put Option Agreement
is unmodified and in full force and effect, and no default exists under the Put
Option Agreement. The Put Option Agreement shall not be modified in any respect
without Lenders' prior, written approval.
6.2 SURVIVAL OF PROJECT REPRESENTATIONS, WARRANTIES AND COVENANTS: The
foregoing representations, warranties and covenants will be true and correct on
the date of the initial Advance of each Construction Loan and at the dates of
all subsequent Advances of each Construction Loan. It shall be a condition to
Borrower's right to receive an Advance of a Construction Loan that all of the
foregoing representations, warranties and covenants be true and correct with
respect to such Construction Loan on the date of such Advance and with the same
force and effect as of the date of the first Advance of such Construction Loan.
All representations, warranties, acknowledgments, covenants and agreements made
in this Agreement or in any certificate or other document delivered to the Agent
by Borrower pursuant to or in connection with this Agreement shall be deemed to
have been relied upon by Agent and each Lender, notwithstanding any
investigation heretofore or hereafter made by Agent or any Lender or on behalf
of any of them (and Borrower hereby acknowledges such reliance by Agent and each
Lender in making each Construction Loan and all Advances thereof) and shall
survive the making of any or all of the Advances of each Construction Loan
contemplated hereby and shall continue in full force and effect as long as there
remains unperformed any obligations to Agent or any Lender hereunder or, with
respect to each Construction Loan, under the Notes, the Mortgage or any of the
other Loan Documents executed and delivered in connection with such Construction
Loan.
ARTICLE 7
FACILITY COVENANTS AND AGREEMENTS
7.1 Borrower hereby covenants and agrees that, up to and including the
later of (i) the Facility Maturity Date, and (ii) the repayment in full of all
of Borrower's Liabilities:
(a) FINANCIAL STATEMENTS OF BORROWER: Borrower shall furnish to Agent and
each Lender each of the following financial statements:
(i) Within ninety (90) days after the end of each calendar year, (A)
a financial statement of Borrower audited
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by an independent public accounting firm approved by Lenders which shall
consist of a balance sheet, a detailed cash flow statement, an operating
statement and surplus reconciliation, covering the period from the end of
Borrower's immediately preceding fiscal year to the end of such fiscal
year, and (B) a financial projection for the succeeding fiscal year
certified by the chief financial officer of Borrower.
(ii) Within forty-five (45) days after the end of each calendar
quarter, current operating statements for the Borrower for such period
which shall be certified to be correct by the chief financial officer of
Borrower.
(b) FINANCIAL STATEMENTS OF CENTERPOINT PROPERTIES: Borrower shall
furnish to Agent and each Lender copies of the following financial statements:
(i) Within ninety (90) days after the end of each calendar year, a
financial statement of Centerpoint Properties audited by an independent
public accounting firm which shall consist of a balance sheet, a detailed
cash flow statement, an operating statement and surplus reconciliation,
covering the period from the end of Centerpoint Properties' immediately
preceding fiscal year to the end of such fiscal year.
(ii) Within forty-five (45) days after the end of each calendar
quarter, current operating statements for Centerpoint Properties for such
period.
(c) NET WORTH: Borrower shall maintain at all times a net worth,
determined in accordance with GAAP, of not less than Three Million Dollars
($3,000,000.00).
(d) REVIEW OF BORROWER'S BOOKS AND RECORDS. Agent, each Lender and their
respective officers, employees and representatives shall have the right at any
time to examine, copy and make extracts of the books and records of Borrower.
Such books and records shall be made available to Agent, each Lender, their
officers, employees, agents and representatives at all reasonable times at the
Borrower's corporate offices or at such other location as Agent or a Lender
shall approve.
(e) REPRESENTATIONS: All representations and warranties of Borrower
contained in Article 5 hereof shall remain true at all times.
(f) CORPORATE FRANCHISES; CONDUCT OF BUSINESS.
(i) Borrower shall do or cause to be done all things necessary to
preserve and keep in full force and effect its (A) corporate existence and
its good standing in the States in which it is incorporated; and (B) its
respective franchises,
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licenses, permits, certificates, authorizations, qualifications,
accreditations, easements, rights of way and other rights, consents and
approvals, except where the failure to so preserve any of the foregoing
(other than existence and good standing) could not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Effect.
(ii) Borrower will carry on and conduct its business in substantially
the same manner and substantially the same fields of enterprise as it is
presently conducted.
(g) USE OF PROCEEDS. Borrower will apply the proceeds of any Construction
Loan only for the uses permitted pursuant to the Loan Documents executed in
connection with such Construction Loan, all of which are and will continue to be
legal and proper corporate uses and have been (or will be) duly authorized by
its Board of Directors. The proceeds of each Construction Loan will be used
for purposes specified in 815 ILCS 205/4(1)(c), and that each Construction Loan
shall constitute a "business loan" within the meaning of said statute.
(h) PROHIBITION ON SALES: Neither Borrower nor any shareholder of
Borrower shall, without Lenders' prior written consent, suffer, permit or enter
into any agreement for any sale, lease, transfer, or in any way encumber or
dispose of or grant or suffer any security or other assignment (collateral or
otherwise) of or in, any shares or other interest in the Borrower. Any consent
by Lenders, or any waiver of a default under this Section 7.1(h), shall not
constitute a consent to, or waiver of any right, remedy or power of Lenders
under any subsequent default hereunder.
(i) PUT OPTION AGREEMENTS. Borrower shall (i) timely complete all
requirements of Borrower under each Put Option Agreement, including but not
limited to timely achievement of Substantial Completion (as defined in each Put
Option Agreement), and (ii) exercise all of its rights under each Put Option
Agreement, including but not limited to the exercise of the Put Option (as
defined in each Put Option Agreement) as soon as possible after such exercise is
permitted.
(j) BANKING RELATIONSHIP. Borrower shall maintain all of its deposit,
investment and disbursement accounts only with LaSalle so long as LaSalle is
able to provide money management services substantially similar to those
provided on the Closing Date.
(k) DISTRIBUTIONS: Borrower shall not make any dividend or other
distribution of any nature (whether in cash, property, securities or otherwise)
on account of or in respect of any shares of the stock of Borrower or on account
of the purchase, redemption, retirement or acquisition of any shares of the
stock of Borrower or any warrants, options or rights therefor, not permitted
under the terms and provisions of the Intercreditor Agreement.
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(l) ADDITIONAL DEBT: Borrower shall not incur any additional
Indebtedness, other than (i) trade payables arising in the ordinary course of
Borrower's business, (ii) Indebtedness under the Centerpoint Properties Line of
Credit, (iii) Project Loans, and (iv) Put Loans. Borrower's trade payables will
be paid in a manner acceptable to, and which will not disrupt its business
relationships with, its suppliers and creditors.
(m) MODIFICATION OF CENTERPOINT PROPERTIES LINE OF CREDIT DOCUMENTS.
Borrower shall not modify or amend any of the Centerpoint Properties Line of
Credit Documents without the prior written consent of Lenders.
(n) INFORMATION CONCERNING BORROWER: Borrower will: promptly supply
Agent and the Lenders with such information concerning its affairs and property
as Agent or either Lender may reasonably request from time to time hereafter;
promptly notify Agent and the Lenders of any condition or event which
constitutes a breach, Default or Event of Default of any term, condition,
warranty, representation or provision of this Agreement or any Loan Document
executed in connection with any Construction Loan and of any Material Adverse
Change; and maintain a standard and modern system of accounting in accordance
with GAAP.
(o) LITIGATION: Borrower shall furnish Agent and each Lender a written
notice of any litigation in which Borrower is named as defendant or affecting or
relating to any Project which could materially adversely affect any Project or
the parties' ability to perform their respective obligations hereunder or under
the Loan Documents executed in connection with any Construction Loan.
ARTICLE 8
PROJECT COVENANTS AND AGREEMENTS
8.1 Borrower hereby covenants and agrees that, with respect to each
Construction Loan and each Project, up to and including the repayment in full of
all of Borrower's Liabilities incurred in connection with such Construction Loan
and such Project:
(a) CONSTRUCTION: Borrower shall cause the construction of the
Improvements to be commenced on or before 15 days from the date of the execution
of the Project Addendum and diligently and expeditiously carried out, in a good
and workmanlike manner, in accordance with the Plans and Specifications (and, if
applicable, the Engineering Plans and Specifications), all requirements of each
Lease, the Put Option Agreement and all applicable laws, ordinances and
regulations. Without limiting the generality of the foregoing, Borrower shall
cause construction of the Project to continue
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without interruption (subject to Unavoidable Delays) until completion, and shall
cause Construction Completion to occur on or before the Construction Completion
Date.
(b) CHANGES: Borrower shall not, without the prior written approval of
Lenders, make or permit any "material change" in the Plans and Specifications
(or, if applicable, the Engineering Plans and Specifications). Borrower shall
furnish to Lenders with each request for approval of a "material change" in the
Plans and Specifications (or, if applicable, the Engineering Plans and
Specifications) a certificate of the Borrower to the effect that such change is
in compliance with all applicable laws and ordinances. For purposes hereof,
"material change" shall mean any single change having an estimated cost of more
than $10,000 or any group or series of changes having an aggregate cost of more
than $25,000.
(c) CODE COMPLIANCE: Borrower shall comply or cause compliance with all
applicable building codes, zoning ordinances, environmental protection, health
and safety laws and regulations, and other laws, ordinances and regulations
governing construction, use and operation of the Project.
(d) INSURANCE PREMIUMS: Borrower shall pay all premiums on all
insurance policies required under Section 4.2(ab), Article 10 and the Mortgage
from time to time during the progress of construction. Thirty (30) days before
any such policies of insurance expire, Borrower shall furnish to Lenders, with
premiums prepaid, additional and renewal insurance policies in form, and with
companies, coverage, deductibles and amounts satisfactory to Lenders. Borrower
shall pay prior to the due date thereof all real estate tax bills covering all
or any portion of the Project. In the event of failure by Borrower to provide
such insurance or pay such taxes, Agent or the Lenders may place insurance and
pay such taxes and treat the amounts expended therefor as disbursements of
proceeds of the Construction Loan and such amounts from the date so expended
until paid shall bear interest at the Default Interest Rate.
(e) PROGRESS REPORTS: Borrower shall deliver to Lenders each month a
detailed report showing the progress of construction of the Improvements. In
addition, Borrower will from time to time furnish Lenders such other information
and reports, financial and otherwise, concerning Borrower and the construction
of the Work as Lenders reasonably require.
(f) REPRESENTATIONS: Borrower agrees that all representations and
warranties of Borrower contained in Article 5 hereof, and, with respect to the
Construction Loan, Article 6 hereof, shall remain true at all times until the
Construction Loan is repaid in full.
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(g) LIENS: Except for (i) the Mortgage and other security for the
Construction Loan, (ii) the lien of general real estate taxes, payments of which
are not yet due, (iii) mechanic's liens which are bonded against to the
satisfaction of Lenders, and (iv) the Permitted Exceptions, Borrower shall keep
its fee simple title to the Project free of all liens, claims and encumbrances,
whether senior or junior to the Mortgage.
(h) CONTEST OF PROCEEDINGS: If any proceedings are filed seeking to
enjoin or otherwise prevent or declare invalid or unlawful the construction,
occupancy, maintenance or operation of the Improvements or any portion thereof,
Borrower will cause such proceedings to be vigorously contested in good faith,
and in the event of any adverse ruling or decision, prosecute all allowable
appeals therefrom, and will, without limiting the generality of the foregoing,
resist the entry or seek the stay of any temporary or permanent injunction that
may be entered, and use its best efforts to bring about a favorable and speedy
disposition of all such proceedings. All such proceedings, including without
limitation, all of Agent's or any Lender's costs, and reasonable fees and
disbursements of Agent's or any Lender's counsel in connection with any such
proceedings, whether or not Agent or any Lender is a party thereto, shall be at
Borrower's expense, such expenses, including reasonable attorneys' fees and fees
and charges for court costs, bonds and the like to be deemed to be Loan Expenses
hereunder, shall be payable to Agent or the affected Lender on demand and shall
bear interest from the date so demanded until paid at the Default Interest Rate.
(i) PROHIBITION ON SALES: Except for the Put Option Agreement,
Borrower shall not, without Lenders' prior written consent, suffer, permit or
enter into any agreement for any sale, lease, transfer, or in any way encumber
or dispose of or grant or suffer any security or other assignment (collateral or
otherwise) of or in, all or any portion of the Project. Any consent by Lenders,
or any waiver of a default under this Section 8.1(i) shall not constitute a
consent to, or waiver of any right, remedy or power of Lenders under any
subsequent default hereunder.
(j) CHANGES IN CONSTRUCTION CONTRACT: Borrower shall not, without the
prior written approval of Lenders, make any material changes or consent to any
material changes in the Construction Contract.
(k) LOAN DOCUMENT COMPLIANCE: Borrower shall promptly and fully perform
and comply in all respects with the obligations, covenants, agreements, terms,
provisions and requirements of the Loan Documents.
(l) FAILURE TO APPLY FOR DISBURSEMENTS: If Borrower does not apply for
a disbursement of the Construction Loan within thirty (30) days after the date
of the most recent disbursement of the
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Construction Loan, Borrower shall, at the request of Lenders, cause all of the
conditions precedent to disbursement set forth in Article 4 (other than delivery
of a date down endorsement to the title policy) to be satisfied as of the
expiration of said thirty (30) day period, and every thirty (30) days
thereafter, until another disbursement is applied for.
(m) ADDITIONAL ASSURANCES: Borrower shall execute and deliver or cause
to be executed and delivered to Lenders now, and at any time or times hereafter,
all documents, instruments, letters of direction, notices, authorizations,
reports, acceptances, receipts, consents, waivers, affidavits and certificates
as Lenders may reasonably request, in form satisfactory to Lenders, to perfect
and maintain perfected the liens granted by Borrower to Agent or Lenders upon
the Project or other collateral securing the Construction Loan or in order to
consummate fully all of the transactions contemplated hereunder; and in
connection therewith, Borrower hereby irrevocably makes, constitutes and
appoints Agent and any of its officers, employees or agents, as its true and
lawful attorney with power to sign the name of Borrower to any such document,
instrument, letter of direction, notice, report, acceptance, receipt, consent,
waiver, affidavit or certificate if Borrower has not complied with Lenders'
request to execute such document within seven (7) days from date of written
request.
(n) USE OF PROCEEDS: No portion of the proceeds of the Construction
Loan shall be used for any purpose other than that specified in this Agreement,
the Project Addendum or as consented to in writing by Lenders.
(o) INDEMNITY: To the fullest extent permitted by law, Borrower shall
indemnify, save and keep Agent and each Lender harmless from and against: (a)
any claims for brokerage fees or commissions relating to the Project; and (b)
all claims, actions, suits, proceedings, costs, expenses, losses, damages and
liabilities of any kind, including in tort, and all penalties and interest
thereon, which Agent or any Lender may incur in any manner other than its own
negligence or willful misconduct, by reason of any matter relating, directly or
indirectly, to the Construction Loan or the ownership, condition, development,
construction, sale, rental or financing of the Project or any part thereof.
This indemnity shall continue in effect even if the Construction Loan is not
advanced in full or in part, and shall survive the payment of all obligations to
Agent and each Lender under this Agreement or otherwise. Borrower hereby
acknowledges that neither Agent nor any Lender shall be deemed to have assumed
any responsibility or liability in respect to the design of the Project, or the
adequacy of the Plans and Specifications (or, if applicable, the Engineering
Plans and Specifications), on account of Agent's or any Lender's receipt or
review of the Plans and Specifications (or, if applicable, the Engineering Plans
and Specifications) delivered pursuant to this Agreement.
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(p) SUITS AGAINST AGENT OR LENDERS: If Agent or any Lender, by virtue
of its undertaking of the Construction Loan and for no specific act or failure
to act on its own part, is made a party to any suit or suits involving the
Borrower or any other party relating to the Construction Loan or to the Project,
other than suits between the parties hereto, Borrower herewith agrees that it
will employ competent, experienced attorneys satisfactory to the Lenders to
defend Agent and each Lender in such action at Borrower's own cost and, failing
to do so, Agent and each Lender may make use of attorneys employed by them and
any amount so expended by Agent or any Lender shall be additional liability
owing by Borrower to Agent and such Lender, with interest thereon at the Default
Interest Rate, payable on demand and secured by the Loan Documents executed in
connection with the Construction Loan.
(q) SURVIVAL OF AGREEMENTS: All representations and warranties of
Borrower and all terms, provisions, conditions and agreements to be performed by
Borrower contained herein or in any of the Loan Documents executed heretofore
and concurrently herewith by Borrower and delivered to Agent, or in any
documents, instruments, certificates or agreements executed by Borrower shall be
true and satisfied at the time of their execution of this Agreement, and as
between Agent and each Lender, on the one hand, and Borrower, on the other hand,
shall survive the execution and delivery of the Project Addendum and each of the
other Loan Documents and the Advance of the proceeds of the Construction Loan.
(r) REMEDY OF DEFECTS: Borrower shall remedy, in a manner reasonably
satisfactory to all Official Bodies and the Agent, such portions or aspects of
the construction contemplated herein as may be determined to be not
substantially in compliance with the approved Plans and Specifications (or, if
applicable, Engineering Plans and Specifications) or any governmental laws,
ordinances, rules and regulations affecting the Project.
(s) INSPECTIONS: Borrower shall cooperate with Agent in arranging for
inspections from time to time of the Project by Agent's Construction Consultant
and any other representatives of Agent or the Lenders. Borrower acknowledges
and agrees that (i) all of such inspections and reports shall be made for the
sole benefit of Agent and the Lenders and not for the benefit of Borrower or any
third party, and neither Agent, any Lender nor Agent's Construction Consultant
or any other of Agent's other representatives, agents or contractors assume any
responsibility or liability except to Agent and the Lenders by reason of such
inspections or reports, (ii) Borrower will not rely upon any of such inspections
or reports for any purpose whatsoever, and (iii) such inspections and reports
will not constitute a waiver of any of the provisions of this Agreement or any
of the obligations of Borrower hereunder. Borrower further acknowledges and
agrees that neither Agent, any Lender nor Agent's Construction Consultant or any
other of Agent's representatives, agents or contractors shall
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be deemed in any way responsible for any matters related to design or
construction of the Improvements or any errors, inconsistencies or other defects
in the Plans and Specifications (or, if applicable, the Engineering Plans and
Specifications.
(t) EQUITY: At all times until the Construction Loan has been repaid in
full, Borrower shall maintain equity in the Project in the minimum amount of the
equity shown on the Project Budget, and shall furnish Lenders with evidence of
such equity upon request. Such equity may be provided through one or more
Project Loans or an advance under the Centerpoint Properties Line of Credit.
ARTICLE 9
LOAN EXPENSES AND ADVANCES BY AGENT OR LENDERS
9.1 LOAN EXPENSES: Borrower shall pay, according to invoices provided
by Agent, all of Agent's and each Lender's Loan Expenses with respect to each
Construction Loan.
9.2 INDEBTEDNESS SECURED BY LOAN DOCUMENTS: With respect to each
Construction Loan, any and all Advances and all Loan Expenses advanced or
incurred by Agent or any Lender in connection with such Construction Loan, shall
be and become secured by the Loan Documents executed and delivered in connection
with such Construction Loan to the same extent as if all terms and provisions of
this Agreement were set forth in such Loan Documents, whether or not the
aggregate amount of such Advances and Loan Expenses exceed the face amount of
the Notes evidencing such Construction Loan; provided, however, that the total
indebtedness secured by such Loan Documents shall not in any event exceed 200
percent of the Loan Amount of the applicable Construction Loan.
9.3 RIGHT OF AGENT AND LENDERS TO MAKE ADVANCES TO CURE DEFAULTS: In
the event that Borrower shall fail to perform any of Borrower's covenants and
agreements herein, or shall fail to make any payments required by this
Agreement, Agent or any Lender may (but shall not be obligated to), upon written
notice to Borrower, perform any one or all of such covenants and agreements,
make any such payments (including those due Agent or any Lender), or advance
funds in excess of the face amount of the Notes executed with respect to one or
more Construction Loans, and any amounts expended by Agent or any Lender in so
doing, plus interest thereon at the Default Interest Rate, shall be (i) due and
payable by Borrower to Agent or the affected Lender on demand, and (ii) secured
by all Loan Documents executed in connection with every Construction Loan;
provided, however, that in the event any amounts are expended by Agent or any
Lender as a result of Borrower's failure to perform any covenant or agreement
contained in Articles 6 or 8 hereof, such amounts shall be secured only by the
Loan Documents executed and
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delivered to evidence and secure the Construction Loan or Construction Loans in
connection with which Borrower failed to perform such covenant or agreement.
ARTICLE 10
INSURANCE
FIRE AND CASUALTY
10.1 INSURANCE: With respect to each Construction Loan and each Project,
the Borrower will, at its expense, maintain the following insurance in amounts
and with good and responsible insurance companies satisfactory to Lenders:
(a) comprehensive all risk insurance on the Improvements and all
personal property in the Project, including contingent liability from operation
of building laws, demolition costs and increased cost of construction
endorsements, in each case (i) in an amount equal to 100% of the "Full
Replacement Cost," which for purposes of this Agreement shall mean actual
replacement value (exclusive of costs of excavations, foundations, underground
utilities and footings) with a waiver of depreciation, but the amount shall in
no event be less than the aggregate outstanding principal balance of the Notes;
(ii) containing an agreed amount endorsement with respect to the Improvements
and personal property waiving all co-insurance provisions, (iii) providing for
no deductible in excess of $50,000; and (iv) containing an "Ordinance or Law
Coverage" or "Enforcement" endorsement if any of the Improvements or the use of
the Real Estate shall at any time constitute legal non-conforming structures or
uses. The Full Replacement Cost shall be redetermined from time to time (but
not more frequently than once in any twelve (12) calendar months) at the request
of Agent by an appraiser or contractor designated and paid by Borrower and
approved by Agent, or by an engineer or appraiser in the regular employ of the
insurer. After the first appraisal, additional appraisals may be based on
construction cost indices customarily employed in the trade. No omission on the
part of Agent to request any such ascertainment shall relieve Borrower of any of
its obligations under this Subsection. In addition, Borrower shall obtain (y)
flood hazard insurance if any portion of the Improvements is currently or at any
time in the future located in a federally designated "special flood hazard
area," or as otherwise reasonably required by Agent and (z) earthquake insurance
in amounts and in form and substance satisfactory to Agent in the event a Parcel
is located in an area with a high degree of seismic activity, provided that the
insurance pursuant to clauses (y) and (z) hereof shall be on terms consistent
with the comprehensive all risk insurance policy required under this Section
10.1 except that the deductible on such insurance shall not be in excess five
percent (5%) of the appraised value of the Project;
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(b) commercial general liability insurance against claims for personal
injury, bodily injury, death or property damage occurring upon, in or about the
Project, such insurance (i) to be on the so-called "occurrence" form with a
combined single limit of not less than $1,000,000; (ii) to continue at not less
than the aforesaid limit until required to be changed by Agent in writing by
reason of changed economic conditions making such protection inadequate; and
(iii) to cover at least the following hazards: (1) premises and operations; (2)
products and completed operations on an "if any" basis; (3) independent
contractors; (4) blanket contractual liability for all written and oral
contracts; and (5) contractual liability covering the indemnities contained in
Section 8.1(o) hereof to the extent the same is available;
(c) business income and rent loss insurance (i) with loss payable to
Agent and Lenders; (ii) covering all risks required to be covered by the
insurance provided for in Subsection 10.1(a); (iii) containing an extended
period of indemnity endorsement which provides that after the physical loss to
the Improvements and personal property has been repaired, the continued loss of
income will be insured until such income either returns to the same level it was
at prior to the loss, or the expiration of twelve (12) months from the date of
the loss, whichever first occurs, and notwithstanding that the policy may expire
prior to the end of such period; and (iv) in an amount equal to 100% of the
projected gross income from the Project for a period of twelve (12) months. The
amount of such business income insurance shall be determined prior to the date
hereof and at least once each year thereafter based on Borrower's reasonable
estimate of the gross income from the Project. All insurance proceeds payable
to Agent or the Lenders pursuant to this Subsection shall be held by Agent and
shall be applied to the Borrower's Liabilities secured hereunder from time to
time due and payable hereunder and under the Notes; provided, however, that
nothing herein contained shall be deemed to relieve Borrower of its obligations
to pay the Borrower's Liabilities secured hereunder on the respective dates of
payment provided for in the Notes except to the extent such amounts are actually
paid out of the proceeds of such business income insurance;
(d) at all times during which structural construction, repairs or
alterations are being made with respect to the Improvements for the Project (i)
owner's contingent or protective liability insurance covering claims not covered
by or under the terms or provisions of the above mentioned commercial general
liability Insurance policy; and (ii) the insurance provided for in Subsection
10.1(a) written in a so-called builder's risk completed value form (1) on a
non-reporting basis, (2) against all risks insured against pursuant to
Subsection 10.1(a), (3) including permission to occupy the Real Estate, and (4)
with an agreed amount endorsement waiving co-insurance provisions;
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(e) workers' compensation, subject to the statutory limits of the State
of Illinois and employer's liability insurance (i) with a limit per accident and
per disease per employee, and (ii) in an amount for disease aggregate in respect
of any work or operations on or about the Project, or in connection with the
Project or its operation (if applicable), in each case reasonably required by
Agent;
(f) comprehensive boiler and machinery Insurance, if applicable, in
amounts as shall be reasonably required by Agent on terms consistent with the
commercial general liability insurance policy required under Subsection 10.1(b);
(g) umbrella liability insurance in an amount not less than
$5,000,000,000 per occurrence on terms consistent with the commercial general
liability insurance policy required under Subsection 10.1(b);
(h) motor vehicle liability coverage for all owned and non-owned
vehicles, including rented and leased vehicles containing minimum limits per
occurrence of $3,000,000 including any umbrella liability coverage; and
(i) such other insurance and in such amounts as Agent or Agent's
insurance consultant from time to time may reasonably request against such other
insurable hazards which at the tine are commonly insured against for property
similar to the Project located in or around the region in which the Project is
located.
10.2 POLICY RATINGS: All insurance provided for in Subsection 10.1
hereof shall be obtained under valid and enforceable policies (the "Policies" or
in the singular, the "Policy"), and shall be subject to the approval of Agent as
to insurance companies, amounts, forms, deductibles, loss payees and insurers.
The Policies shall be issued by financially sound and responsible insurance
companies authorized to do business in the state in which the applicable
Property is located and approved by Agent. Each insurance company must have a
rating of "A" or better for claims rating ability assigned by Standard & Poor's
Ratings Group (the "Rating Agency") or, if the Rating Agency does not assign a
rating for such insurance company, such insurance company must have a general
policy rating of A or better and a financial class of XV or better by A.M. Best
Company, Inc. (each such insurer shall be referred to below as a "Qualified
Insurer"). The Policies described in Subsections 10.1(a), (b), (c), (d) and (f)
shall designate Agent and each Lender as loss payee. Not less than thirty (30)
days prior to the expiration dates of the Policies theretofore furnished to
Agent pursuant to Subsection 10.1, certified copies of the Policies marked
"premium paid" or accompanied by evidence satisfactory to Agent of payment of
the premiums due thereunder (the "Insurance Premiums"), shall be
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delivered by Borrower to Agent; provided, however, that in the case of renewal
Policies, Borrower may furnish Agent with binders therefor to be followed by the
original Policies when issued.
10.3 BLANKET COVERAGE: Borrower shall not obtain (i) any umbrella or
blanket liability or casualty Policy unless, in each case, Agent's and each
Lender's interest is included therein as provided in this Agreement and such
Policy is issued by a Qualified Insurer, or (ii) separate insurance concurrent
in form or contributing in the event of loss with that required in Subsection
10.1 to be furnished by, or which may be reasonably required to be furnished by,
Borrower. In the event Borrower obtains separate insurance or an umbrella or a
blanket Policy, Borrower shall notify Agent of the same and shall cause
certified copies of each Policy to be delivered as required in Subsection 10.1.
Any blanket insurance Policy shall (a) specifically allocate to each applicable
Project, on an individual basis, the amount of coverage from time to time
required hereunder or (b) be written on an occurrence basis for the coverages
required hereunder with a limit per occurrence in an amount equal to the amount
of coverage required hereunder and shall otherwise provide the same protection
as would a separate Policy insuring each applicable Project, on an individual
basis, in compliance with the provisions of Subsection 10.1.
10.4 NAMED INSUREDS: All Policies of insurance provided for or
contemplated by Subsection 10.1, except for the Policy referenced in Subsection
10.1(e), shall name Agent, each Lender and Borrower as the insured or additional
insured, as their respective interests may appear, and in the case of property
damage, boiler and machinery, flood and earthquake insurance, shall contain a
so-called New York standard non-contributing mortgagee clause in favor of Agent
and Lenders providing that the loss thereunder shall be payable to Agent and
Lenders.
10.5 ENDORSEMENTS: All Policies of insurance provided for in Section
10.1 shall contain clauses or endorsements to the effect that:
(a) no act or negligence of Borrower, or anyone acting for Borrower, or
of any tenant under any lease or other occupant, or failure to comply with the
provisions of any Policy which might otherwise result in a forfeiture of the
insurance or any part thereof, shall in any way affect the validity or
enforceability of the insurance insofar as Agent and the Lenders are concerned;
(b) the Policy shall not be materially changed (other than to increase
the coverage provided thereby) or cancelled without at least 30 days' written
notice to Agent and any other party named therein as an insured;
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(c) each Policy shall provide that the issuers thereof shall give
written notice to Agent if the Policy has not been renewed thirty (30) days
prior to its expiration; and
(d) Neither Agent nor any Lender shall be liable for any insurance
premiums thereon or subject to any assessments thereunder.
10.6 CERTIFICATIONS: Borrower shall furnish to Agent, on or before
thirty (30) days after the close of each of Borrower's fiscal years, a statement
certified by Borrower or a duly authorized officer of Borrower of the amounts of
insurance maintained in compliance herewith, of the risks covered by such
insurance and of the insurance company or companies which carry such insurance
and, if requested by Agent, verification of the adequacy of such insurance by an
independent insurance broker or appraiser acceptable to Agent.
10.7 RIGHTS OF AGENT: If at any time Agent is not in receipt of written
evidence that all insurance required hereunder is in full force and effect,
Agent shall have the right to take such action as it deems necessary to protect
its and the Lenders' interest in each Project, without limitation, the obtaining
of such insurance coverage as Agent in its sole discretion deems appropriate,
and all expenses incurred by Agent in connection with such action or in
obtaining such insurance and keeping it in effect shall be paid by Borrower to
Agent upon demand and until paid shall be secured by this Agreement and the Loan
Documents executed and delivered in connection with the Project or Projects for
which such insurance was obtained and shall bear interest at the Default
Interest Rate. Agent shall deliver notice to Borrower that it has taken or will
take such action.
10.8 LENDERS' INSURANCE CONSULTANT. All policies of insurance required
under this Article 10 shall be reviewed and approved by an insurance consultant
retained by Lenders, the reasonable fees of which shall be paid by Borrower.
10.9 APPLICATION OF INSURANCE AND CONDEMNATION PROCEEDS ON INDEBTEDNESS:
In case of loss or damage by fire or other casualty to a Project, or
condemnation of all or any part of a Project, insurance or condemnation
proceeds, as the case may be, shall be applied as provided in the Mortgage
executed and delivered in connection with such Project. Unless otherwise
directed in writing by Agent, in the event of damage or destruction of a
Project, or condemnation of all or any portion of a Project, Borrower shall
rebuild, repair, replace or restore such Project to the extent such insurance or
condemnation proceeds are made available to Borrower to do so pursuant to the
Mortgage executed and delivered in connection with such Project.
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ARTICLE 11
TAXES AND LIENS
11.1 TAXES: With respect to each Construction Loan and each Project,
Borrower shall promptly pay when due and payable (subject to contest in good
faith and in accordance with Section 11.2 hereof) all sales, use, excise, real
and personal property, income, corporate, franchise and other taxes, assessments
and governmental charges of every kind and nature, which are now or shall
hereafter be levied or assessed against Borrower or Borrower's interest in the
Project or which may otherwise be or become a Lien upon the Project. In the
event Borrower shall fail to pay any such tax, assessment, claim, levy or charge
or to discharge any such Lien for any reason other the contest of such item in
good faith and in accordance with Section 11.2 below, the Agent or either
Lender, without waiving or releasing any obligation or Default of Borrower
hereunder, may at any time or times hereafter, but shall be under no obligation
to do so, make such payment, settlement, compromise, or release or cause to be
released any such Lien and take any other action with respect thereto which
Agent or Lenders deem advisable, and all sums paid by Agent or either Lender in
satisfaction of, or on account of any such claims, taxes, levies, or assessments
or governmental charges, or to discharge or release any of such Liens, and any
expenses, including reasonable attorneys' fees, court costs and other charges
relating thereto, shall be an additional liability of Borrower owing to Agent or
the affected Lender with interest at the Default Interest Rate, payable on
demand and secured by the Loan Documents executed and delivered in connection
with the Project or Projects affected thereby.
11.2 LIENS: With respect to each Construction Loan and each Project
until such Construction Loan has been repaid in full, Borrower agrees not to
suffer or permit any Liens or claims for Liens to be filed or otherwise asserted
against the Project or any funds due contractor(s), or any subcontractors or
sub-subcontractors, including, without limitation, any tax, mechanics' or
materialmen's Liens, and promptly to discharge such Liens in case of the filing
of any claims for Lien or proceedings for the enforcement thereof, except for
the Liens granted by the Loan Documents to secure the Construction Loan;
provided, however, that Borrower shall have the right to contest in good faith
and with reasonable diligence the validity of any such Lien or claimed Lien upon
either (i) deposit with the Title Company or the Agent of a sum or other
security in an amount determined by Lenders in their reasonable discretion to be
adequate to insure payment thereof and to prevent any sale, foreclosure or
forfeiture of the Project by reason of non-payment thereof or (ii) cause such
Title Company to insure the liens granted to Agent to be superior to any such
Lien or claim for Lien as to all Advances of the Construction Loan theretofore
or thereafter made by Agent or the Lenders. Upon the
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conclusion of any such contest and in the event of an adverse result, the
Borrower immediately will satisfy any judgment rendered or decree entered and
will at its expense cause such Lien or Liens to be released. In case Borrower
shall fail promptly either to discharge or to contest claims asserted and give
security in the manner above provided, or having commenced to contest the same,
and having given such security, shall fail to prosecute such contest with
diligence, or to maintain such deposit for its full amount, or upon adverse
conclusion of any such contest to cause any judgment or decree thereon to be
satisfied and such Lien to be released, then and in any such event the Agent or
either Lender may, at its discretion, procure the release and discharge of any
such Lien claim and any judgment or decree thereunder and, further may in its
sole discretion effect any settlement or compromise of the same, and any amounts
so expended by Agent or such Lender shall be an additional liability owing by
Borrower to Agent or such Lender with interest at the Default Interest Rate,
payable on demand, and secured by the Loan Documents executed and delivered in
connection with the Project or Projects affected thereby. In settling,
compromising or discharging any Liens or claims for Lien, Agent and each Lender
is hereby authorized to use any sums or security deposited with Agent, either
Lender or the Title Company pursuant to the terms of this Section to settle,
compromise or discharge any such Liens or claims for Lien, and neither Agent or
either Lender shall be required to inquire into the validity or amount of any
such Liens or claims for Lien.
ARTICLE 12
FACILITY DEFAULTS BY BORROWER
AND AGENT'S AND LENDERS' REMEDIES
12.1 FACILITY DEFAULT BY BORROWER: The occurrence of any one or more of
the following shall constitute a "Facility Event of Default", as such term is
used herein:
(a) PAYMENTS. Borrower shall fail to pay (i) any interest due under any
Note within five (5) days from the date when due or principal due under any Note
when due (whether resulting from maturity, declaration or otherwise), (ii) any
other of Borrower's Liabilities payable on demand within five days of the date
demanded, and/or (iii) any other of Borrower's Liabilities within five days of
the date when due; provided, however, that any interest payable with respect to
any delinquent payment shall be calculated at the Default Interest Rate from the
date such payment was actually due as if there were no grace period, provided,
further, in the event Borrower cures the payment Default during the cure period,
the Default Interest Rate shall not be applied to the period of the pendency of
such Default; or
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(b) NON-MONETARY DEFAULTS. The failure of Borrower to observe or
perform any condition, provision or obligation under this Agreement not
otherwise described in this Section 12.1, other than any condition, provision or
obligation contained in Articles 6 or 8 hereof, and to fail to cure the same
within thirty (30) days after giving of written notice thereof; provided,
however, that if such event cannot be cured within such thirty (30) day period
and Borrower promptly commences and thereafter diligently proceeds to cure such
event, the time period for curing such event shall be extended for a period not
to exceed thirty (30) additional days; or
(c) TRANSFERS. The sale, assignment, pledge, transfer, grant of a
security interest in, or other hypothecation (except as consented to in advance
by Lenders) of any stock or other interest in the Borrower; or
(d) INDEBTEDNESS. Borrower shall incur any Indebtedness not permitted
hereunder.
(e) INTERCREDITOR AGREEMENT. Any of Borrower, Centerpoint Properties or
Centerpoint Realty shall breach any agreement or obligation of such party under
the terms and provisions of the Intercreditor Agreement which is not cured
within the grace period, if any, provided therein.
(f) ATTACHMENT. A writ or warrant of attachment, garnishment,
execution, distraint or similar process shall have been issued against any of
the assets of Borrower which shall have remained undischarged and unstayed for a
period of sixty (60) consecutive days; or
(g) BANKRUPTCY. A proceeding shall have been instituted in respect of
Borrower:
(i) seeking to have an order for relief entered in respect of
Borrower, or seeking a declaration or entailing a finding that Borrower is
insolvent or a similar declaration or finding, or seeking dissolution,
winding-up, charter revocation or forfeiture, liquidation, reorganization,
arrangement, adjustment, composition or other similar relief with respect
to Borrower, its assets or its debts under any law relating to bankruptcy,
insolvency, relief of debtors or protection of creditors, termination of
legal entities or any other similar law now or hereafter in effect, or
(ii) seeking appointment of a receiver, trustee, custodian,
liquidator, assignee, sequestrator or other similar official for Borrower
or for all or any substantial part of its property,
and such proceeding shall result in the entry, making or grant of any such order
for relief, declaration, finding, relief or
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appointment, or such proceeding shall remain undismissed and unstayed for a
period of sixty (60) days; or
(h) INSOLVENCY. Borrower shall become insolvent or admit in writing its
inability to pay its debts as they mature, or otherwise become generally unable
to pay its debts as they become due, or voluntarily suspend transaction of
business or cease to conduct its business as now conducted (whether voluntarily
or involuntarily), or make a general assignment for the benefit of creditors, or
institute a proceeding described in Section 12.1(g)(i) hereof or consent to any
such order for relief, declaration, finding or relief described therein, or
institute a proceeding described in Section 12.1(g)(ii) hereof or consent to any
such appointment or to the taking of possession by any such official of all or
any substantial part of its property whether or not any such proceeding is
instituted, or dissolve, windup or liquidate itself or any substantial part of
its property, or take any action in furtherance of any of the foregoing; or
(i) TAX LIENS. A notice of lien or assessment is filed or recorded with
respect to all or any portion of Borrower's assets by the United States, or any
department, agency or instrumentality thereof, or by any state, county,
municipal or other governmental agency, or if any taxes or debts owing at any
times hereafter to any one of these becomes a lien or encumbrance upon any of
Borrower's assets and the same is not released within thirty (30) days after the
same becomes a lien or encumbrance; provided that Borrower shall have the right
to contest by appropriate proceedings any such lien, levy or assessment if
Borrower provides the Agent and the Lenders with a bond or indemnity
satisfactory to the Lenders assuring the payment of such lien, levy or
assessment; or
(j) REPRESENTATION. Any representation or warranty made by Borrower
under this Agreement or any statement made by Borrower in any financial
statement, certificate, report, exhibit or document furnished to Agent or the
Lenders in connection with the execution of this Agreement (other than any
representation or warranty contained in Article 6 hereof) shall prove to have
been false or misleading in any material respect as of the time when made (or
when deemed remade in accordance with the terms of this Agreement); or
(k) JUDGMENTS. Any final judgment for the payment of money in excess of
$100,000 shall have been entered against Borrower, or final judgments for the
payment of money in an aggregate amount of $250,000 shall have been entered
against Borrower, exclusive of those judgments for which Borrower's insurer has
acknowledged coverage, and such judgment or judgments shall have remained
undischarged and unstayed for a period of sixty (60) consecutive days; or
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(l) DEFAULT UNDER PUT OPTION AGREEMENT. The termination of any Put
Option Agreement, or a default by Centerpoint Properties or Borrower under any
Put Option Agreement in connection with any Project which is not cured within
any grace period provided therein; or
(m) CENTERPOINT PROPERTIES LINE OF CREDIT. The termination of the
Centerpoint Properties Line of Credit, or the refusal of Centerpoint Properties
to make an advance requested by the Borrower, in Borrower's sole discretion,
permitted under the Centerpoint Properties Line of Credit Documents.
(n) DEFAULT UNDER CENTERPOINT PROPERTIES REVOLVING CREDIT AGREEMENT.
The occurrence and continuance of a Default (as defined therein) by Centerpoint
Properties under that certain Amended and Restated Unsecured Revolving Credit
Agreement dated as of November 13, 1997 by and between Centerpoint Properties,
the Lenders (as defined therein), Lehman Brothers Holdings Inc. d/b/a Lehman
Capital, a division of Lehman Brothers Holdings Inc., and The First National
Bank of Chicago, as heretofore and hereafter amended.
12.2 AGENT'S AND LENDERS' OBLIGATIONS AFTER A FACILITY DEFAULT. Upon the
occurrence and continuance of a Facility Default, neither Agent nor any Lender
shall have any further obligation thereafter to advance money or extend credit
to or for the benefit of Borrower under this Agreement, any Construction Loan or
any Loan Document executed in connection with any Construction Loan.
12.3 AGENT'S AND LENDERS' REMEDIES UPON A FACILITY EVENT OF DEFAULT:
Upon the occurrence and continuance of a Facility Event of Default, Agent and
Lenders may avail themselves of any of the following remedies:
(a) ACCELERATION: Upon the occurrence of a Facility Event of Default
described in Section 12.1(f), (g) or (h), all of Borrower's Liabilities shall be
and become immediately due and payable without presentment, demand or further
notice of any kind. Upon the occurrence and continuance of any other Facility
Event of Default, Agent and/or the Lenders may declare the principal of and
interest on one or more, or all, or the Notes executed in connection with any
outstanding Construction Loans, and any or all other Borrower's Liabilities, to
be forthwith due and payable and thereupon such Notes, including both principal
and interest thereon, and such other Borrower's Liabilities, shall be and become
immediately due and payable without presentment, demand or further notice of any
kind.
(b) DEED IN LIEU OF FORECLOSURE: Upon providing Borrower and
Centerpoint Properties with five (5) business days' written notice of the
Lenders' intent to exercise their remedies under one or more, or all, of the
Deed Agreements, Agent and/or Lenders may
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accept and record one or more, or all, of the deeds delivered to Lenders (or the
nominee or nominees of the Lenders), and may accept one or more, or all, of the
assignments or other transfer documents delivered to the Lenders (or the nominee
or nominees of the Lenders), pursuant to one or more, or all, of the Deed
Agreements executed and delivered to Agent and the Lenders in connection with
each Construction Loan. In the event Agent and/or Lenders choose to accept one
or more deeds, assignments or other transfer documents, Borrower hereby agrees
to execute any and all other documents or instruments reasonably requested by
Agent and/or Lenders to consummate the transactions contemplated by the
applicable Deed Agreement or Deed Agreements. Borrower further agrees that, in
the event of Borrower refuses to execute any such document or instrument within
five (5) days of the date of the written request of Agent and/or Lender, (i)
Borrower hereby irrevocably makes, constitutes and appoints Agent, Rob-Wal
Investment Co., an Illinois corporation ("Rob-Wal") and/or each Lender, and any
of their respective officers, employees or agents, as its true and lawful
attorney with power to sign the name of Borrower to any such document or
instrument, and (ii) Agent and each Lender shall be entitled to injunctive
relief, including specific performance, to obtain the execution of such document
or instrument, and to such other and further relief, including damages, as may
be available to Agent or any Lender. Damages shall include, without limitation,
all attorneys' fees and other costs incurred by Agent or any Lender in
connection with the enforcement of Agent's and/or Lenders' rights under this
Section 12.3(b), and shall be secured by all Loan Documents executed in
connection with all Construction Loans.
(c) OTHER: Agent or Lenders (i) may take possession of one or more, or
all, Projects in accordance with the provisions of Section 13.3(c) hereof, (ii)
may obtain a receiver for one or more, or all, Projects in accordance with the
provisions of Section 13.3(d) hereof, (iii) exercise any right or remedy
provided in any Mortgage or any other Loan Document executed in connection with
any Construction Loan, or (iv) exercise any right or remedy available at law or
in equity.
ARTICLE 13
PROJECT DEFAULTS BY BORROWER
AND AGENT'S AND LENDERS' REMEDIES
13.1 PROJECT DEFAULT BY BORROWER: With respect to each Construction
Loan, the occurrence of any one or more of the following shall constitute a
"Project Event of Default", as such term is used herein:
(a) FACILITY DEFAULTS: The occurrence of any Facility Event of Default;
or
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(b) INSURANCE: The failure of Borrower to obtain or maintain insurance
coverage for the applicable Project in accordance with Article 10 hereof; or
(c) CONSTRUCTION LOAN BALANCE DEFAULT. The failure of Borrower to cure
a Construction Loan Balance Default with respect to the applicable Project
within fifteen (15) days after Agent or a Lender gives Borrower written notice
thereof; or
(d) INTEREST RESERVE DEFICIENCY DEFAULT. The failure of Borrower to
cure an Interest Reserve Deficiency Default with respect to the applicable
Project within fifteen (15) days after Agent or a Lender gives Borrower written
notice thereof; or
(e) LOAN DOCUMENT DEFAULTS: The occurrence of any Event of Default
under any of the Loan Documents executed and delivered in connection with such
Construction Loan; or
(f) TRANSFERS: Except for the transactions described in the Put Option
Agreement executed in connection with the applicable Project, the sale,
assignment, pledge, transfer, grant of a security interest in, or other
hypothecation (except as otherwise herein provided, or as consented to in
advance by Lenders) of any interest in the applicable Project, for security
purposes or otherwise; or
(g) DELAYS: Construction of the applicable Improvements is so delayed
for any reason whatsoever (whether within or outside the control of Borrower or
any other person), including, without limitation, on account of damage or
destruction by fire or other casualty (whether or not covered by insurance), so
that in the reasonable judgment of Lenders, such Improvements will not be
substantially completed on or before the applicable Construction Completion
Date; or
(h) REPRESENTATION. Any representation or warranty made by Borrower
pursuant to Article 6 of this Agreement, any Loan Document executed and
delivered in connection with the applicable Construction Loan, or any statement
made by Borrower in any financial statement, certificate, report, exhibit or
document furnished to Agent or the Lenders in connection with the such
Construction Loan shall prove to have been false or misleading in any material
respect as of the time when made (or when deemed remade in accordance with the
terms of this Agreement); or
(i) FAILURE TO COMPLY: The disapproval by Lenders at any time of any
Work in connection with the applicable Project for failure to comply with this
Agreement and failure to cause the same to be corrected to the satisfaction of
Lenders within thirty (30) days after the date of such disapproval, subject to
any Unavoidable Delay; or
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(j) FAILURE TO OBTAIN DISMISSAL OF PROCEEDINGS: Failure of Borrower for
a period of thirty (30) days after Lender's demand to procure the dismissal or
disposition to Lenders' satisfaction of any proceedings seeking to enjoin or
otherwise prevent or declare invalid or unlawful the construction, occupancy,
maintenance or operation of the applicable Project, or any portion thereof, in
accordance with the terms of this Agreement and the applicable Loan Documents,
or of any proceedings which could or might affect the validity or priority of
the lien of the applicable Mortgage or other security for such Construction Loan
or which could materially affect Borrower's ability to perform its obligations
under this Agreement with respect to such Construction Loan and the applicable
Project; or
(k) FAILURE TO MEET DISBURSEMENT TERMS: The failure or inability of
Borrower, whether or not Borrower requests a disbursement, to fulfill all of the
conditions required for disbursement of such Construction Loan on a monthly
basis upon the request to do so by Agent or Lenders; or
(l) BANKRUPTCY OF CONTRACTOR: The bankruptcy or insolvency of the
Contractor or the withdrawal of the Contractor from proceeding with the Work in
connection with the applicable Project, and failure of Borrower to procure a
contract with a new general contractor satisfactory to Lenders in Lenders'
reasonable discretion within thirty (30) days from the occurrence of such
bankruptcy, insolvency or withdrawal; or
(m) NON-MONETARY DEFAULTS: The failure of Borrower to observe or
perform any condition, provision or obligation under Articles 6 or 8 of this
Agreement not otherwise described in this Section 13.1 with respect to such
Construction Loan and the applicable Project, and to fail to cure the same
within thirty (30) days after giving of written notice thereof; provided,
however, that if such event cannot be cured within such thirty (30) day period
and Borrower promptly commences and thereafter diligently proceeds to cure such
event, the time period for curing such event shall be extended for a period not
to exceed thirty (30) additional days.
13.2 AGENT'S AND LENDERS' OBLIGATIONS AFTER A PROJECT DEFAULT. Upon the
occurrence of a Project Default, neither Agent nor any Lender shall have any
further obligation thereafter to advance money or extend credit to or for the
benefit of Borrower in connection with the affected Construction Loan under this
Agreement or any Loan Document executed and delivered in connection with the
affected Construction Loan.
13.3 AGENT'S AND LENDERS' REMEDIES UPON A PROJECT EVENT OF DEFAULT: Upon
the occurrence and continuance of a Project Event of Default, Agent or the
Lenders may avail themselves of any of the following remedies with respect to
the affected Construction Loan:
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(a) ACCELERATION: Upon the occurrence of an Event of Default described
in Section 21(c) of the Mortgage, the principal of and interest on the Notes
executed and delivered in connection with the affected Construction Loan and all
other Borrower's Liabilities incurred in connection with the affected
Construction Loan shall be and become immediately due and payable without
presentment, demand or further notice of any kind. Upon the occurrence and
continuance of any other Project Event of Default, Agent and/or the Lenders may
declare the principal of and interest on the Notes executed and delivered in
connection with the affected Construction Loan and any or all other Borrower's
Liabilities incurred in connection with the affected Construction Loan to be
forthwith due and payable and thereupon such Notes, including both principal and
interest thereon, and such other Borrower's Liabilities, shall be and become
immediately due and payable without presentment, demand or further notice of any
kind.
(b) DEED IN LIEU OF FORECLOSURE: Upon providing Borrower and
Centerpoint Properties with five (5) business days' written notice of the
Lenders' intent to exercise their remedies under the Deed Agreement executed and
delivered to Agent and the Lenders in connection with the affected Construction
Loan, Agent and/or Lenders may accept and record the deed delivered to Lenders
(or the nominee or nominees of the Lenders), and may accept the assignments or
other transfer documents delivered to the Lenders (or the nominee or nominees of
the Lenders), pursuant to the applicable Deed Agreement. In the event Agent
and/or Lenders choose to accept such deed, assignments or other transfer
documents, Borrower hereby agrees to execute any and all other documents or
instruments reasonably requested by Agent and/or Lenders to consummate the
transactions contemplated by the applicable Deed Agreement. Borrower further
agrees that, in the event of Borrower refuses to execute any such document or
instrument within five (5) days of the date of the written request of Agent
and/or Lender, (i) Borrower hereby irrevocably makes, constitutes and appoints
Agent, Rob-Wal and/or each Lender, and any of their respective officers,
employees or agents, as its true and lawful attorney with power to sign the name
of Borrower to any such document or instrument, and (ii) Agent and each Lender
shall be entitled to injunctive relief, including specific performance, to
obtain the execution of such document or instrument, and to such other and
further relief, including damages, as may be available to Agent or any Lender.
Damages shall include, without limitation, all attorneys' fees and other costs
incurred by Agent or any Lender in connection with the enforcement of Agent's
and/or Lenders' rights under this Section 13.3(b), and shall be secured by all
Loan Documents executed in connection with the affected Construction Loan.
(c) POSSESSION OF PROJECT: To the extent permitted by law, Agent and/or
Lenders shall have the right, but not the obligation, to take possession of the
affected Project together with all materials, equipment and improvements
thereon, whether affixed or
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not, and perform any and all work and labor necessary to complete the applicable
Improvements substantially in accordance with the applicable Plans and
Specifications (and, if applicable, Engineering Plans and Specifications)
therefore or with such changes therein as the Agent and the Lenders deem
appropriate to complete the applicable Work or protect and preserve such
Improvements; and for that purpose, the Agent and Lenders shall have the right
to expend sums in addition to the Loan Amount and all such additional sums shall
constitute indebtedness of the Borrower to the Agent and the Lenders and shall
be entitled to the benefit of the security afforded by the applicable Mortgage
and Loan Documents. Borrower, to implement the rights of Agent and the Lenders
hereunder, irrevocably constitutes and appoints the Agent its true and lawful
attorney in fact with full power of substitution for it and in its name, place
and stead to take any and all actions the Agent deems necessary or appropriate
to complete construction of the applicable Improvements and to protect and
preserve same and, without limiting the generality of the foregoing, irrevocably
authorize the Agent as follows: to use the funds of Borrower at any time coming
into Agent's or any Lender's hands, including any balance which may be held in
escrow, any funds which may remain unadvanced hereunder and any funds then on
deposit with the Agent pursuant to Section 3.3(d) hereof, for the purpose of
completing such Improvements in the manner contemplated hereby or in such manner
as Agent and the Lenders deem appropriate to enhance the value of the affected
Project; to employ such contractors, subcontractors, agents, architects and
inspectors as shall be necessary or appropriate for said purposes; to enter
into, alter, amend or modify any and all contracts, agreements or documents in
connection with the construction of such Improvements or the furnishing of labor
and materials in connection therewith; to pay, settle, compromise or collect all
existing accounts or claims arising in connection with the construction of such
Improvements, including all claims which are or may become liens against the
affected Project; to take all actions it may deem necessary or appropriate in
connection with title to the applicable Real Estate; to execute all
applications, certificates or instruments which may be requested or required
under any contract or by any Governmental Authority; to prosecute and defend all
actions or proceedings in connection with the construction of such Improvements;
and to do any and every act with respect to construction of such Improvements
and the operation, use and maintenance thereof which Borrower may do in its own
behalf; and
(d) RECEIVER: Agent and/or Lenders may appoint or seek appointment of a
receiver, without notice and without regard to the solvency of Borrower or the
adequacy of any collateral, for the purpose of preserving the affected Project,
preventing waste, and to protect all rights accruing to Agent or any Lender by
virtue of this Agreement, the applicable Mortgage or any of the Loan Documents,
and expressly to make any and all further improvements, whether on-site or
off-site, as Agent and/or Lenders may determine
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to be necessary to complete the development and construction of the affected
Project. Borrower hereby irrevocably consents to the appointment of a receiver
upon the request for such appointment by Agent and/or Lenders. All expenses
incurred in connection with the appointment of such receiver, or in protecting,
preserving or improving and operating the affected Project, shall be charged
against Borrower and shall be secured by the applicable Mortgage and the other
Loan Documents executed and delivered in connection with the affected
Construction Loan and enforced as a lien against the affected Project; and
(e) OTHER: Agent and/or Lenders may exercise any right or remedy (i)
set forth in the applicable Mortgage or any other Loan Document executed and
delivered in connection with the affected Construction Loan, or (ii) available
at law or in equity.
ARTICLE 14
THE ADMINISTRATIVE AGENT
14.1 APPOINTMENT. For the convenience of the parties hereto, LaSalle
National Bank is appointed, hereunder and under each of the Loan Documents
executed in connection with each Construction Loan, Agent for the Lenders with
such powers as are specifically delegated to the Agent by the terms of this
Agreement, the Loan Documents executed in connection with each Construction Loan
and any agreements entered into between Agent and the Lenders, including,
without limitation, the Co-Lender Agreement, together with such other powers as
are reasonably incidental thereto. By its execution hereof LaSalle National
Bank accepts such agency, solely for the purposes set forth herein and in the
Co-Lender Agreement.
ARTICLE 15
NOTICES
15.1 GENERAL: All notices or other communications required or permitted
hereunder shall be (a) in writing and shall be deemed to be given when either
(i) delivered in person, (ii) received after deposit in a regularly maintained
receptacle of the United States mail as registered or certified mail, postage
prepaid, (iii) when received if sent by private courier service, or (iv) on the
day on which the party to whom such notice is addressed refuses delivery by mail
or by private courier service and (b) addressed as follows:
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To Agent: LaSalle National Bank
135 South LaSalle Street
Suite 1225
Chicago, Illinois 60603
Attn: John C. Hein
First Vice President
With copy to: Miller, Shakman, Hamilton, Kurtzon &
Schlifke
208 South LaSalle Street
Suite 1100
Chicago, Illinois 60604
Attn: Michael S. Kurtzon
To USBank: U.S. Bank National Association
111 East Wacker Drive
Suite 3000
Chicago, Illinois 60601
Attention: Elliott Quigley
with a copy to:
Charles R. Haynor
Briggs and Morgan
2400 IDS Center
80 South 8th Street
Minneapolis, MN 55402
To Borrower: CenterPoint Development Corporation
1808 Swift Road
Oak Brook, Illinois 60523
Attention: Paul S. Fisher
With copy to: Ungaretti & Harris
3500 Three First National Plaza
Chicago, Illinois 60602
Attn: Richard A. Ungaretti
or to each such party at such other addresses as such party may designate in a
written notice to the other parties.
Copies of all notices delivered by Borrower to Agent also shall be sent by
Borrower to USBank coincidentally with their delivery to Agent. Any notice to
Centerpoint Properties may be sent to the address designated for Borrower. Any
notice provided
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by the Agent or any Lender to Borrower shall be deemed to be effective notice to
Borrower. Any notice provided by the Agent or any Lender to Centerpoint
Properties shall be deemed to be effective notice to Centerpoint Properties.
ARTICLE 16
GENERAL
16.1 HOLIDAYS. Except as otherwise provided herein, whenever any payment
or action to be made or taken hereunder or under any Note shall be stated to be
due on a day which is not a Business Day, such payment or action shall be made
or taken on the next following Business Day and such extension of time shall be
included in computing interest or fees, if any, in connection with such payment
or action.
16.2 PRIORITY OF AGREEMENT: This Agreement supersedes all prior
understandings, discussions, communications and agreements, whether written or
oral, among the parties hereto relating to the transactions provided for herein.
In the event of any inconsistency between the provisions of this Agreement and
any Loan Document executed in connection with any Construction Loan (other than
an Environmental Indemnity Agreement), the provisions of this Agreement shall
prevail.
16.3 WAIVERS AND CONSENTS: Except for the written notices specifically
provided herein or in any Loan Document executed in connection with any
Construction Loan, if any, Borrower waives to the fullest extent permitted by
law: (i) any and all notice or demand which Borrower might be entitled to
receive with respect to this Agreement or the Notes or other Loan Documents
executed in connection with any Construction Loan by virtue of any applicable
statute or law; (ii) any and all redemption and exemption rights and the benefit
of all valuation and appraisement privileges against the indebtedness evidenced
by any of the Notes or any other Loan Document or by any extension or renewal
thereof; (ii) presentment and demand for payment, notices of nonpayment and of
dishonor, protest of dishonor and notice of protest with respect to the
indebtedness evidenced by any of the Notes; (iii) any notice with respect to
performance, default, release, compromise, settlement, extension or renewal of
any Note or other Loan Document in connection with any Construction Loan at any
time held by Agent or any Lender on which Borrower may in any way be liable;
(iv) any lack of diligence and delays in the enforcement of the payment of any
Note or any of the other Borrower's Liabilities; and (v) notice of any action
taken by Agent or any Lender unless expressly required by this Agreement or by
any Loan Document executed in connection with any Construction Loan. Borrower
hereby consents to (y) any and all extensions of time, renewals, waivers or
modifications that may be granted by Agent or Lenders with respect
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to the payment of any Note or any of the other Borrower's Liabilities, and to
the release of any security at any time given for the payment thereof, or any
part thereof, with or without substitution, and to the release of any other
Person at any time liable for the payment of any part thereof; and (z) the
addition of any and all other makers, indorsers, guarantors and other obligors
for the payment of any note or any of the other Borrower's Liabilities, and to
the acceptance of any and all other security for the payment thereof, and agree
that the addition of any such obligors or security shall not affect the
liability of Borrower for the payment thereof.
16.4 WAIVER OF BORROWER'S PERFORMANCE BY AGENT OR LENDERS: Agent and the
Lenders reserve the right to waive, or extend time for, performance of any
provisions, warranties, terms and conditions hereof or of any Note or other Loan
Document, and the failure at any time or times hereafter to require strict
performance by Borrower of any of the provisions, warranties, terms and
conditions contained in this Agreement, any Note or in any Loan Document
executed in connection with any Construction Loan shall not waive, affect or
diminish any right of Agent or Lenders thereafter to demand strict compliance
and performance therewith and with respect to any other provisions, warranties,
terms and conditions contained in such agreements, whether prior or subsequent
thereto, and whether of the same or a different type. None of the warranties,
conditions, provisions and terms contained in this Agreement, or any Loan
Document executed in connection with any Construction Loan, shall be deemed to
have been waived by any act or knowledge of Agent or any Lender, their
respective agents, officers or employees, except by an instrument in writing
signed by all Lenders and directed to Borrower specifying such waiver.
16.5 CUMULATIVE RELIEF. The rights and remedies provided under this
Agreement are cumulative and may be exercised singly or concurrently, and are
not exclusive of any rights and remedies provided by law or equity.
16.6 NO FIRST RESORT OBLIGATION. In order to realize hereon and to
exercise the rights granted Agent and the Lenders hereunder and under applicable
law, there shall be no obligation on the part of Agent and/or the Lenders at any
time to first resort for payment to any security property, liens or any other
rights or remedies whatsoever, and the Agent and/or Lenders shall have the right
to enforce this Agreement irrespective of whether other proceedings or steps are
pending seeking resort to or realization upon or from any of the foregoing.
16.7 RECORDS. The unpaid principal amount of each Note, the unpaid
interest accrued thereon, the Interest Rate or rates applicable to such unpaid
principal amount, the duration of such
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applicability, and each Lender's portion of the aggregate Construction Loan
Facility, shall at all times be ascertained from the records of the Agent, which
shall be conclusive absent manifest error.
16.8 MODIFICATION AND AMENDMENT: Neither this Agreement, any Loan
Document executed in connection with any Construction Loan, nor any provision
hereof or thereof may be changed, waived, terminated or discharged orally, but
only by an instrument in writing signed by the party against whom enforcement of
the change, waiver, termination or discharge is sought .
16.9 NO IMPLIED WAIVER; REMEDIES. No course of dealing and no delay or
failure of the Agent or any Lender in exercising any right, power or privilege
under this Agreement, or any Note, Mortgage, any other Loan Document or any
other documents or instruments executed pursuant to or in connection therewith,
shall affect any other or future exercise thereof or exercise of any other
right, power or privilege; nor shall any single or partial exercise of any such
right, power or privilege or any abandonment or discontinuance of steps to
enforce such a right, power or privilege preclude any further exercise thereof
or of any other right, power or privilege. In addition, to the extent that the
Agent or any of the Lenders may have acquiesced in any noncompliance by making
any Construction Loan or Advance, such acquiescence shall not be deemed to
constitute a waiver by Agent or any Lender of any continuing or future
obligation of Borrower with respect to future Construction Loans or Advances.
The rights and remedies of the Agent and the Lenders under this Agreement, or
any Note, Mortgage, any other Loan Document or any other documents or
instruments executed pursuant to or in connection therewith, are cumulative and
not exclusive of any rights or remedies which the Agent and the Lenders would
otherwise have.
16.10 EXPENSES; TAXES; ATTORNEYS' FEES. The Borrower agrees to pay or
cause to be paid and to save the Agent and Lenders (and their successors and
assigns) harmless against liability for the payment of all reasonable
out-of-pocket expenses, including but not limited to reasonable fees and
expenses of counsel for the Agent and each of the Lenders, travel expenses, fees
and costs of accountants, and environmental and appraisal costs and expense, all
incurred from time to time (i) arising in connection with the negotiation,
preparation, execution, delivery, interpretation and performance of this
Agreement, any Note, Mortgage, any other Loan Document and any documents,
instruments or transactions pursuant to or in connection therewith, and the
Co-Lender Agreement, (ii) relating to any requested amendments waivers or
consents to, or to any restructurings, work-outs or refinancings of the credit
under this Agreement, any Note, Mortgage, any other Loan Document or any such
other documents or instruments, and (iii) relating to any reorganization,
bankruptcy or any other proceedings to which Borrower or its properties become
subject. The Borrower further
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agrees to pay or cause to be paid and to save the Agent and each Lender harmless
against liability for the payment of all reasonable expenses, including but not
limited to reasonable fees and expenses of counsel for Agent and/or each Lender,
incurred by the Agent or such Lenders from time to time in connection with the
enforcement by the Agent and/or Lenders of this Agreement, any Note, Mortgage,
or any other Loan Document. The Borrower agrees to pay all stamp, document,
transfer, recording or filing taxes or fees and similar impositions now or
hereafter determined by the Agent and/or Lenders to be payable in connection
with this Agreement, any Note, Mortgage, any other Loan Document or any other
documents, instruments or transactions pursuant to or in connection therewith,
and the Borrower agrees to save the Agent and the Lenders harmless from and
against any and all present or future claims, liabilities or losses with respect
to or resulting from any omission to pay or delay in paying any such taxes, fees
or impositions. In the event of determination adversely to Borrower of any
action at law or suit in equity in relation to this Agreement, any Note,
Mortgage, or any other Loan Document, the Borrower will pay, in addition to all
other sums which Borrower may be required to pay, a reasonable sum for
attorney's fees incurred by the Agent and/or any Lender or the holder of such
Notes in connection with such action or suit. All of the foregoing fees, costs
and expenses shall be part of Borrower's Liabilities and payable on demand. Any
such fees, costs and expenses shall be secured by the Loan Documents executed
and delivered by Borrower in connection with the Construction Loan or
Construction Loans with respect to which such fees, costs and expenses were
incurred.
16.11 SEVERABILITY. The provisions of this Agreement and the Loan
Documents are intended to be severable. If any provision of this Agreement or
any Loan Document shall be held invalid or unenforceable in whole or in part in
any jurisdiction such provision shall, as to such jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without in any manner
affecting the validity or enforceability thereof in any other jurisdiction or
the remaining provisions hereof or thereof in any jurisdiction, unless the
ineffectiveness of such provision materially and adversely alters the benefits
to any party hereunder.
16.12 GOVERNING LAW. This Agreement and each Note, Mortgage, and other
Loan Document shall be deemed to be contracts and obligations under the laws of
the State of Illinois and for all purposes shall be governed by, construed and
enforced in accordance with the internal laws (as opposed to conflicts of law
provisions) of said State, and any applicable laws of the United States; except,
however, that any Mortgage, UCC financing statement and assignment of leases and
rents applicable to any Project located outside of the State of Illinois shall
be governed by, construed and enforced in accordance with the laws of the state
in which such Project is located.
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16.13 COUNTERPARTS. This Agreement and any Loan Document may be executed
in any number of counterparts and by the different parties hereto on separate
counterparts each of which, when so executed, shall be deemed an original, but
all such counterparts shall constitute but one and the same instrument.
16.14 SUCCESSORS AND ASSIGNS; LENDERS.
(a) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the Borrower, the Lenders, the Agent, all future holders
of the Notes, and their respective successors and permitted assigns, except that
the Borrower may not assign or transfer any of its rights or obligations under
this Agreement or any interest herein without the prior written consent of the
Lenders. The successors and assigns of the parties shall include, without
limitation, a receiver, trustee and/or debtor-in-possession of or for Borrower.
Borrower acknowledges and agrees that any Lender may, subject to the terms of
Section 8 of the Co-Lender Agreement, assign, or assign a participation in, any
or all of its interest in the Facility and each Construction Loan to another
Person; provided, however, that in the event such assignment would (i) result in
the assignment of all of LaSalle's interest in the Facility or in the
replacement of LaSalle as Agent, or (ii) result in the number of Lenders
increasing to a number greater than two, such Person shall not have the right to
exercise any of the rights of the Lenders hereunder without the prior written
consent of Borrower to such assignment.
(b) PROVISION OF INFORMATION TO LENDERS. Borrower authorizes Agent to
disclose to any Lender and any prospective Lender, subject to any prospective
Lender's acknowledgement of the confidentiality provisions of Section 16.15
hereof, any and all financial and other information in Agent's possession
concerning the Borrower and its affiliates which has been delivered to Agent by
or on behalf of the Borrower pursuant to this Agreement or which has been
delivered to Agent by or on behalf of the Borrower in connection with Agent's
credit evaluation of the Borrower and its affiliates prior to becoming a party
to this Agreement.
(c) NO RIGHTS IN BORROWER; NO THIRD PARTY BENEFICIARY RIGHTS. Borrower
acknowledges and agrees that none of the obligations of the Agent to Lenders
shall create or confer any rights whatsoever (including, without limitation,
third party beneficiary rights) on or in the Borrower. In addition, the parties
agree that the Agent and Lenders may amend any provision of this Agreement which
relates solely to the rights and obligations between them, without any consent
or approval required by the Borrower. Without limiting the foregoing, Borrower
acknowledges and agrees that nothing in this Agreement or any Loan Document
creates or shall be deemed to create any third party beneficiary rights
whatsoever.
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16.15 CONFIDENTIALITY. With respect to the financial information
delivered to the Lenders by Borrower hereunder and any other information
obtained by the Agent or the Lenders from Borrower from time to time, each
Lender agrees that, to the extent such information therein contained has not
theretofore otherwise been disclosed in such a manner as to render such
information no longer confidential, each Lender agrees to employ reasonable
procedures designed to maintain the confidential nature of the information
contained therein; provided that, notwithstanding the foregoing, each Lender may
disclose such information to (a) its employees, agents, attorneys and
accountants who would ordinarily have access to such information; (b) such third
parties as each Lender may, in its discretion, deem reasonably necessary in
connection with or in response to compliance with any law, ordinance or
governmental order, regulation, rule, policy, subpoena, notice of discovery or
similar ruling or pleading issued, filed, served or purported on its face to be
issued, filed or served by or under authority of any court, tribunal,
arbitration board of any governmental authority or in connection with any
proceeding, case or matter pending or on its face pending before any court,
tribunal, or arbitration board of any governmental authority; and (c) any
prospective lender or participant; and, provided further, that no Lender shall
be liable to the Borrower or any other Person for damages for failure to comply
with this Section 16.15, except in any case involving such Lender's gross
negligence or willful misconduct.
16.16 TIME OF ESSENCE. Time is of the essence of this Agreement, each
Project Addendum, Note, Mortgage, and other Loan Document.
16.17 ENTIRE AGREEMENT. The parties hereto agree that this Agreement,
including the Exhibits attached hereto, and any Loan Documents executed in
connection with individual Construction Loans, represent the entire agreement
and understanding of the parties hereto with reference to the transactions
contemplated herein; and no party shall claim that any party hereto has any
right or obligation regarding the Facility other than as stated in such
documents, as such documents may be amended in accordance with their respective
terms. Without limiting the foregoing, nothing contained in any disclosure
document prepared by Borrower or in any other document (except the Loan
Documents) shall constitute any consent, waiver or agreement of the Agent or the
Lenders nor may it be used in any manner whatsoever to interpret, modify or
otherwise affect this Agreement or any Loan Document.
16.18 SECTION TITLES. The section titles and table of contents contained
in this Agreement are for convenience only and shall be without substantive
meaning or content of any kind whatsoever.
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16.19 REFERENCES. All references contained herein to any laws, statutes,
rules, regulations, or similar provisions shall include all amendments thereto
and any successor provisions.
16.20 REINSTATEMENT. This Agreement shall remain in full force and effect
and continue to be effective should any petition be filed by or against Borrower
for liquidation or reorganization, should Borrower become insolvent or make an
assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any significant part of Borrower's assets, and shall
continue to be effective or be reinstated, as the case may be, if at any time
payment and performance of Borrower's Liabilities, or any part thereof, is,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise be
restored or returned by any obligee of Borrower's Liabilities, whether as a
"voidable preference", "fraudulent conveyance", or otherwise, all as though such
payment or performance had not been made. In the event that any payment, or any
part thereof, is rescinded, reduced, restored or returned, Borrower's
Liabilities shall be reinstated and deemed reduced only by such amount paid and
not so rescinded, reduced, restored or returned.
16.21 CONSENT TO JURISDICTION. As a further inducement to Lenders to
enter into this Agreement, Borrower covenants and agrees that the state and
federal courts within Cook County, Illinois shall have jurisdiction of any
action or proceeding relating to, or arising under or in connection with this
Agreement and Borrower consents to personal jurisdiction of such courts and
waives any objection to such courts' jurisdiction. Borrower hereby irrevocably
appoints Paul S. Fisher, c/o CenterPoint Development Corporation, 401 North
Michigan Avenue, 30th Floor, Chicago, Illinois 60611 as its attorney in fact to
accept such service. Service so made shall be deemed completed upon actual
receipt or refusal to accept receipt. Nothing in this Section 16.21 shall
affect the right of Lenders to serve legal process in any other manner permitted
by law or affect the right of Lenders to bring any action or proceeding against
Borrower or its property in the courts of any other jurisdiction or effectuate
any judgment entered by a court of competent jurisdiction.
16.22 WAIVER OF JURY TRIAL. ALL OF THE PARTIES TO THIS AGREEMENT WAIVE TO
THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHT TO TRIAL BY JURY IN ANY CIVIL
ACTION OR CIVIL PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT
OR ANY OF THE DOCUMENTS OR INSTRUMENTS EXECUTED AND DELIVERED PURSUANT HERETO,
OR OTHERWISE RELATING TO THIS AGREEMENT OR SUCH OTHER DOCUMENTS AND INSTRUMENTS,
OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, AND AGREE THAT ANY SUCH
ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. THE
BORROWER WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW ALL RIGHT TO (A)
INTERPOSE ANY COUNTERCLAIM THEREIN UNLESS BORROWER WOULD BE BARRED FROM
ASSERTING SUCH COUNTERCLAIM IN A SEPARATE ACTION BY APPLICABLE LAW OR RULES OF
COURT, AND (B) HAVE
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THE SAME CONSOLIDATED WITH ANY OTHER OR SEPARATE SUIT, ACTION OR PROCEEDING
UNLESS CONSOLIDATION IS REQUIRED UNDER APPLICABLE LAW OR RULES OF COURT.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have caused this presents to be executed on
the date and year first set forth above.
BORROWER:
CENTERPOINT DEVELOPMENT CORPORATION, an
Illinois corporation
By:
---------------------------
Its:
--------------------------
LENDER AND AGENT:
LASALLE NATIONAL BANK, a national
banking association
By:
---------------------------
Its:
--------------------------
LENDER:
US BANK NATIONAL ASSOCIATION, a national
banking association
By:
---------------------------
Its:
--------------------------
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CONSTRUCTION LOAN FACILITY AGREEMENT
SCHEDULES AND EXHIBITS
<PAGE>
SCHEDULE 1
LIST OF CONSULTANTS
<PAGE>
SCHEDULE 2
SUBORDINATION TO MORTGAGES
Section __ SUBORDINATION. Landlord may execute and deliver a mortgage or
trust deed in the nature of a mortgage (both sometimes hereinafter referred to
as "Mortgage") against the Premises or any portion thereof. This Lease and the
rights of Tenant hereunder, shall automatically, and without the requirement of
the execution of any further documents, be and are hereby made expressly subject
and subordinate at all times to the lien of any Mortgage now or hereafter
encumbering any portion of the Improvements, and to all advances made or
hereafter to be made upon the security thereof; provided, however, the holder of
said Mortgage agrees in writing not to disturb the rights of Tenant under this
Lease so long as Tenant is not in default hereunder. Notwithstanding the
foregoing, Tenant agrees to execute and deliver such instruments subordinating
this Lease to the lien of any such Mortgage as may be requested in writing by
Landlord from time to time. Notwithstanding anything to the contrary contained
herein, any mortgagee under a Mortgage may, by notice in writing to the Tenant,
subordinate its Mortgage to this Lease.
Section __ MORTGAGE PROTECTION. Tenant agrees to give the holder of any
Mortgage, by registered or certified mail, a copy of any notice of default
served upon the Landlord by Tenant, provided that prior to such notice Tenant
has received notice (by way of service on Tenant of a copy of an assignment of
rents and leases, or otherwise) of the address of such mortgagee and containing
a request therefor. Tenant further agrees that if Landlord shall have failed to
cure such default within the time provided for in this Lease, then said
mortgagee shall have an additional thirty (30) days after receipt of notice
thereof within which to cure such default or, if such default cannot be cured
within that time, then such additional time as may be necessary, if, within such
thirty (30) days, any mortgagee has commenced and is diligently pursuing the
remedies necessary to cure such default (including but not limited to
commencement of foreclosure proceedings, if necessary to effect such cure).
Such period of time shall be extended by any period within which such mortgagee
is prevented from commencing or pursuing such foreclosure proceedings by reason
of Landlord's bankruptcy. Until the time allowed as aforesaid for said
mortgagee to cure such defaults has expired without cure, Tenant shall have no
right to, and shall not, terminate this Lease on account of default.
<PAGE>
INTERCREDITOR AGREEMENT
THIS INTERCREDITOR AGREEMENT ("Agreement") is dated as of the 31st day of
July, 1998, by and among CENTERPOINT DEVELOPMENT CORPORATION, an Illinois
corporation (the "Borrower"); LASALLE NATIONAL BANK, a national banking
association ("LaSalle"), as a Lender and as agent for the Lenders ("Agent");
U.S. BANK NATIONAL ASSOCIATION, a national banking association, as a Lender
("USBank" and together with LaSalle in its capacity as a Lender, the "Lenders");
CENTERPOINT PROPERTIES TRUST, a Maryland real estate investment trust
("Centerpoint Properties"), and CENTERPOINT REALTY SERVICES CORPORATION, an
Illinois corporation ("Centerpoint Realty," and together with Centerpoint
Properties, the "Subordinated Lenders").
RECITALS:
A. Borrower and Lenders have agreed to enter into a certain Construction
Loan Facility Agreement dated of even date herewith (as hereafter amended, the
"Facility Agreement"), pursuant to which the Lenders have agreed to provide a
construction loan borrowing facility for Borrower. Pursuant to the terms and
provisions of the Facility Agreement, the Lenders shall hereafter make
Construction Loans (as defined in the Facility Agreement) to Borrower, each such
Construction Loan to be evidenced by two promissory notes, one payable to
LaSalle and one payable to USBank, and each in the amount of one-half of the
Loan Amount (as defined in the Facility Agreement) for such Construction Loan
(each a "Note," and collectively, the "Notes"). Each Construction Loan shall be
secured by a mortgage and other security instruments as described in the
Facility Agreement.
B. As of the date hereof, Borrower is indebted to Centerpoint Properties
as evidenced by an Assignment and Assumption Agreement dated as of July 30, 1998
by and between Borrower and Centerpoint Realty, as acknowledged and consented to
by Centerpoint Properties, attached hereto as Exhibit "A" (the "Asset Transfer
Assumption Agreement"). The indebtedness evidenced by the Asset Transfer
Assumption Agreement (the "Asset Transfer Indebtedness") is unsecured.
C. Centerpoint Properties has agreed to provide to Borrower a $1,000,000
line of credit (the "Line of Credit Loan") pursuant to that certain Loan
Agreement of even date herewith by and between Borrower and Centerpoint
Properties attached hereto as Exhibit "B" (the "Line of Credit Agreement").
Loans under the Line of Credit Agreement will be evidenced by that certain
Promissory Note of even
<PAGE>
date herewith in the stated principal amount of $1,000,000 made by Borrower to
the order of Centerpoint Properties attached hereto as Exhibit "C" (the "Line of
Credit Note," and together with the Line of Credit Agreement, the "Line of
Credit Loan Documents").
D. With respect to any individual Project (as defined in the Facility
Agreement), one or both of Centerpoint Properties and Centerpoint Realty may
make a loan or loans to Borrower from time to time to provide funds needed by
Borrower to complete such Project. Any such loan shall be evidenced by a
promissory note (each a "Project Loan Note") in the form of Exhibit "D-1" (in
the case of Centerpoint Properties) or Exhibit "D-2" (in the case of Centerpoint
Realty). Any such loan is hereinafter referred to as a "Project Loan," and all
such loans are hereinafter referred to as "Project Loans."
E. With respect to each individual Project, Borrower and Centerpoint
Properties shall be executing a Put Option Agreement in the form of Exhibit U to
the Facility Agreement. Pursuant to the terms of the Put Option Agreement, upon
an exercise of the Put Option (as defined in the Put Option Agreement) by the
Borrower, Centerpoint Properties may elect, instead of purchasing the Project,
to make a loan to the Borrower in accordance with Section 3 of the Put Option
Agreement. Any such loan is hereinafter referred to as a "Put Loan," and all
such loans are hereinafter referred to as "Put Loans." The proceeds of a Put
Loan shall be used, in part, to repay in full the Construction Loan made with
respect to the applicable Project. Each Put Loan shall be evidenced and secured
by documents in the form of Exhibits C-1 to and including C-10 of the Put Option
Agreement executed in connection with the applicable Project. Any such
documents are hereinafter referred to as "Put Loan Documents."
F. It is a condition precedent to the Lenders entering into the Facility
Agreement that (i) except as expressly provided herein, all Construction Loans
and all other amounts due under or evidenced or secured by the Facility
Agreement or any Loan Document remain at all times prior and superior to the
Asset Transfer Indebtedness, the Line of Credit Loan, all Project Loans and all
Put Loans, and (ii) the Asset Transfer Indebtedness, the Line of Credit Loan and
all Project Loans remain at all times unsecured.
NOW, THEREFORE, in order to induce Lenders to enter into the Facility
Agreement, and in consideration of the mutual agreements and acknowledgements
contained herein, the parties hereto agree as follows:
1. The recitals to this Agreement are incorporated herein and made a part
hereof by this reference thereto. All initially capitalized terms not otherwise
defined herein shall have the meanings ascribed to such terms in the Facility
Agreement.
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2. Centerpoint Properties hereby acknowledges and agrees that until the
later of the Facility Maturity Date or the repayment in full of all of
Borrower's Liabilities, (a) all of the terms, covenants and conditions of the
Asset Transfer Indebtedness are and shall at all times be wholly subordinate to
any and all present or future liens, security interests, terms, covenants and
conditions of each and every Construction Loan and all other Borrower's
Liabilities, including but not limited to "Protective Advances" (as hereinafter
defined) advanced or incurred in connection with any Construction Loan, and (b)
all amounts due to Centerpoint Properties pursuant to the Asset Transfer
Assumption Agreement (including but not limited to interest and/or principal
payments) are and shall at all times continue to be expressly subject and
subordinate in right of payment to the indebtedness of the Borrower evidenced by
any Loan Document delivered in connection with any Construction Loan and all
other Borrower's Liabilities, including but not limited to Protective Advances
advanced or incurred in connection with any Construction Loan. The term
"Protective Advances" means any advances permitted under the terms of any
Mortgage granted in connection with any Construction Loan to protect the
security of the Agent or the Lenders in the Project applicable to such
Construction Loan. The provisions of this Section 2 shall not be deemed to
preclude Centerpoint Properties from receiving payments of the Asset Transfer
Indebtedness to the extent permitted under Section 10 hereof.
3. Centerpoint Properties hereby acknowledges and agrees that until the
later of the Facility Maturity Date or the repayment in full of all of
Borrower's Liabilities, (a) all of the terms, covenants and conditions of the
Line of Credit Loan and any Put Loan are and shall at all times be wholly
subordinate to any and all present or future liens, security interests, terms,
covenants and conditions of each and every Construction Loan and all other
Borrower's Liabilities, including but not limited to Protective Advances
advanced or incurred in connection with any Construction Loan, and (b) all
amounts due to Centerpoint Properties under the Line of Credit Loan Documents or
under any Put Loan Documents (including but not limited to interest and/or
principal payments) are and shall at all times continue to be expressly subject
and subordinate in right of payment to the indebtedness of the Borrower
evidenced by any Loan Document delivered in connection with any Construction
Loan and all other Borrower's Liabilities, including but not limited to
Protective Advances advanced or incurred in connection with any Construction
Loan. The provisions of this Section 3 shall not be deemed to preclude
Centerpoint Properties from receiving payments in connection with the any Put
Loan to the extent permitted under Section 13 hereof.
4. Each of Centerpoint Properties and Centerpoint Realty hereby
acknowledges and agrees that until the later of the Facility Maturity Date or
the repayment in full of all of Borrower's Liabilities, (a) all of the terms,
covenants and conditions of each
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and every Project Loan are and shall at all times be wholly subordinate to any
and all present or future liens, security interests, terms, covenants and
conditions of each and every Construction Loan and all other Borrower's
Liabilities, including but not limited to Protective Advances advanced or
incurred in connection with any Construction Loan, and (b) all amounts due to
either Centerpoint Properties or Centerpoint Realty under any Project Loan Note
(including but not limited to interest and/or principal payments) are and shall
at all times continue to be expressly subject and subordinate in right of
payment to the indebtedness of the Borrower evidenced by any Loan Document
delivered in connection with any Construction Loan and all other Borrower's
Liabilities, including but not limited to Protective Advances advanced or
incurred in connection with any Construction Loan. The provisions of this
Section 4 shall not be deemed to preclude either Centerpoint Properties or
Centerpoint Realty, as applicable, from receiving payments in connection with
any particular Project Loan to the extent permitted under Section 12 hereof.
5. Centerpoint Properties may not make, and Borrower may not accept, any
Put Loan unless the proceeds of such Put Loan, or such part of the proceeds
thereof as may be necessary, shall be used to repay and satisfy in full the
Construction Loan made in connection with the Project that is the subject of
such Put Loan.
6. Neither Centerpoint Properties nor Centerpoint Realty, in connection
with the Asset Transfer Indebtedness, the Line of Credit Loan or any Project
Loan, shall acquire by subrogation, contract or otherwise any security interest
in any property of the Borrower, whether real or personal, tangible or
intangible, including, without limitation, any lien upon any estate, right or
interest in any Project. Any Put Loan may be secured only in accordance with
Section 3 of, and by documents in conformance with Exhibits C-1 to and including
C-10 of, the Put Option Agreement executed in connection with the applicable
Project.
7. Lenders may, without affecting the subordination of the Asset Transfer
Indebtedness, the Line of Credit Loan, each Project Loan and each Put Loan, in
their sole and absolute discretion and without the approval of either
Subordinated Lender, and without regard to any effect upon the Asset Transfer
Indebtedness, the Line of Credit Loan, any Project Loan or any Put Loan: (1)
release or compromise any obligation under, in or pursuant to the Facility
Agreement, any Note or Notes, or any other Loan Document delivered in connection
with any Construction Loan, (2) release their liens in, or surrender, release or
permit any substitution or exchange of all or any part of, any properties
securing repayment of any Construction Loan, (3) retain or obtain a lien in any
property to further secure payment of any Construction Loan, (4) increase the
amount of any Construction Loan, (5) modify or extend the Facility Maturity Date
or the maturity date of the Notes delivered by
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Borrower in connection with any Construction Loan, or (6) modify in any other
way the Facility Agreement or any Loan Document delivered in connection with any
Construction Loan.
8. Each of Centerpoint Properties and Centerpoint Realty shall give the
Lenders notice of any default by Borrower under any Asset Transfer Indebtedness
Document, any Line of Credit Loan Document, any Project Loan Note or any Put
Loan Document at the time such notice is given to the Borrower and copies of all
further notices to Borrower relating to such default.
9. The commencement of any remedial action under any Asset Transfer
Indebtedness Document, the Line of Credit Loan or under any Project Loan,
without the prior, written consent of the Lenders, shall constitute a Facility
Event of Default under the Facility Agreement as of the date such enforcement or
remedial action is initiated. Centerpoint Properties may commence remedial
action in connection with any Put Loan as permitted under Section 13 hereof.
10. The payment of all amounts due under the Asset Transfer Assumption
Agreement is subordinated to the prior payment of all of Borrower's Liabilities.
Prior to (i) the occurrence of a violation of the covenant contained in Section
7.1(c) of the Facility Agreement, or (ii) the occurrence of a Facility Event of
Default (each a "Payment Cessation Event"), the Asset Transfer Indebtedness may
be repaid in full or in part in accordance with the terms of the Asset Transfer
Assumption Agreement; provided, however, Borrower shall make no such payment if
the making of such payment will result in a Payment Cessation Event. Upon the
occurrence and during the continuance of a Payment Cessation Event, no payment
shall be made to Centerpoint Properties by or on behalf of Borrower for or on
account of the Asset Transfer Indebtedness prior to the later of the Facility
Maturity Date and the repayment in full of all of Borrower's Liabilities. In
the event payment of any portion of the Asset Transfer Indebtedness is made in
violation of this Section 10, whether in cash, rent, profits, property or
securities, Centerpoint Properties shall promptly pay to Lenders an amount equal
to such payment.
11. The payment of any amounts due under the Line of Credit Loan Documents
is subordinated to the prior payment of all of Borrower's Liabilities, and no
payment shall be made to Centerpoint Properties by or on behalf of Borrower for
or on account of the amount due under the Line of Credit Loan Documents prior to
the later of the Facility Maturity Date and the repayment in full of all of
Borrower's Liabilities. In the event payment of amounts payable under the Line
of Credit Loan Documents is made in violation of this Section 11, whether in
cash, rent, profits, property or securities, Centerpoint Properties shall
promptly pay to Lenders an amount equal to such payment.
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12. The payment of all amounts due under each Project Loan is subordinated
to the prior payment of all of Borrower's Liabilities. With respect to each
Project, following the repayment and satisfaction in full of the Construction
Loan made in connection with such Project and provided a Payment Cessation Event
shall not have occurred and be continuing, any Project Loan made in connection
with such Project may be repaid in full or in part in accordance with the terms
of the Project Loan Note executed in connection with such Project Loan;
provided, however, Borrower shall make no such payment if the making of such
payment will result in a Payment Cessation Event. Upon the occurrence and
during the continuance of a Payment Cessation Event, no payment shall be made to
either Subordinated Lender by or on behalf of Borrower for or on account of the
amount due under any Project Loan Note prior to the later of the Facility
Maturity Date and the repayment in full of all of Borrower's Liabilities.
13. The payment of all amounts due under each Put Loan is subordinated to
the prior payment of all of Borrower's Liabilities. Prior to the occurrence of
a Payment Cessation Event, any Put Loan may be repaid in full or in part in
accordance with the terms of the applicable Put Loan Documents; provided,
however, Borrower shall make no such payment if the making of such payment will
result in a Payment Cessation Event. Upon the occurrence and during the
continuance of a Payment Cessation Event, no payment shall be made to
Centerpoint Properties by or on behalf of Borrower for or on account of the
amount due under any Put Loan prior to the later of the Facility Maturity Date
and the repayment in full of all of Borrower's Liabilities. Notwithstanding
the foregoing sentence, upon the occurrence and during the continuance of a
Payment Cessation Event, (a) Centerpoint Properties may foreclose or otherwise
exercise any remedies it may have upon any collateral securing a Put Loan,
including but not limited to exercising the Call Option Agreement provided in
connection with a Put Loan, and (b) Borrower may sell any collateral securing a
Put Loan, and the proceeds of such sale may be used to pay all amounts owing
under the Put Loan secured by such Put Loan; provided, however, if the sale or
other disposition of the collateral securing any Put Loan is insufficient to pay
in full all amounts owing under the Put Loan so secured, any deficiency may not
be paid to Centerpoint Properties by or on behalf of Borrower prior to the later
of the Facility Maturity Date and the repayment in full of all of Borrower's
Liabilities. In the event payment of any amount payable under any Put Loan is
made in violation of this Section 13, whether in cash, rent, profits, property
or securities, Centerpoint Properties shall promptly pay to Lenders an amount
equal to such payment.
14. Borrower hereby covenants and agrees that, upon the occurrence and
during the continuance of an Event of Default, Borrower shall not make any
dividend or other distribution of any nature (whether in cash, property,
securities or otherwise) on
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account of or in respect of any shares of the stock of Borrower or on account of
the purchase, redemption, retirement or acquisition of any shares of the stock
of Borrower or any warrants, options or rights therefor (each a "Distribution").
15. Each of Centerpoint Properties and Centerpoint Realty, as the case may
be, hereby represents and warrants to and covenants and agrees with the Lenders
as follows:
(a) Each of Centerpoint Properties and Centerpoint Realty have
received and have reviewed a copy of the Facility Agreement and each of the
exhibits and schedules attached thereto.
(b) Without the Lenders' prior, written consent, which may be denied
in the Lenders' sole and absolute discretion, the form of the Project Loan
Notes will not be amended, and, in connection with each Project, the terms
of payment and maturity date of any Project Loan Note delivered in
connection therewith thereof shall not provide for any payment prior to the
repayment in full of the Construction Loan provided in connection with such
Project. Each Project Loan shall be evidenced solely by a Project Loan
Note in the form of Exhibit C-1 (in the case of Centerpoint Properties) or
Exhibit C-2 (in the case of Centerpoint Realty).
(c) Without the Lenders' prior, written consent, which may be denied
in the Lenders' sole and absolute discretion, neither Centerpoint
Properties nor Centerpoint Realty shall assign all or any part of its
interest in any Project Loan.
(d) Without the prior written consent of the Lenders, neither
Centerpoint Properties nor Centerpoint Realty, in connection with any
Project Loan, will assert, collect (other than as permitted in Section 12
hereof) or enforce all or any portion of the obligations under the any
Project Loan Note, or enforce its rights and remedies under any Project
Loan Note.
(e) If either Centerpoint Properties or Centerpoint Realty, in
violation of the provisions set forth herein, shall commence, prosecute or
participate in any suit, action or proceeding against Borrower in
connection with any Project Loan, the Lenders and/or Agent may intervene
and interpose such defense or plea in their or its own name or in the name
of the Borrower, and may, in any event, have standing to restrain the
enforcement of the provisions of the Project Loan Note in their or its own
name or in the name of Borrower in the same suit, action or proceeding or
in an independent suit, action or proceeding.
(f) Other than payments expressly permitted by Section 12 hereof,
neither Centerpoint Properties nor Centerpoint
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<PAGE>
Realty, as the holder of any Project Loan, shall at any time demand or
retain any voluntary or optional payment or prepayment of any portion of
any Project Loan from the Borrower, which optional or voluntary payments or
prepayments are expressly prohibited hereby.
(g) The Subordinated Lenders have delivered to Lenders a true and
complete fully executed copy of the Asset Transfer Assumption Agreement,
and such agreement has not been amended, modified or supplemented in any
way.
(h) Without the Lenders' prior, written consent, which may be denied
in the Lenders' sole and absolute discretion, the Asset Transfer Assumption
Agreement will not be (i) supplemented, or (ii) amended to modify the terms
of payment, maturity date or any other business terms thereof.
(i) Upon the occurrence of any Bankruptcy Proceeding (as defined in
Section 18 hereof) with respect to the Borrower, each of Centerpoint
Properties and Centerpoint Realty agrees to fully cooperate with the
Lenders in connection with such Bankruptcy Proceeding and to refrain from
taking any actions which are inconsistent with the agreements contained in
this Agreement; provided, however, Centerpoint Properties or Centerpoint
Realty, as the case may be, shall be permitted to accelerate any
obligations of the Borrower then outstanding under the Asset Transfer
Indebtedness, any Project Loans, the Line of Credit or any Put Loans
pursuant to the terms of the Asset Transfer Assumption Agreement, Project
Loan Notes, the Line of Credit Loan Documents or any Put Loan Documents,
respectively. Neither Centerpoint Properties nor Centerpoint Realty shall
be precluded from filing a proof of claim in any Bankruptcy Proceeding that
is not inconsistent with the agreements contained in this Agreement.
(j) If either Centerpoint Properties or Centerpoint Realty obtains
any assets of the Borrower as a result of any proceeding or other action
not permitted hereunder, the Subordinated Lender receiving such assets will
hold such assets in trust for, and immediately pay, deliver and assign such
assets to, the Lenders for application to the Borrower's Liabilities.
(k) Each of Centerpoint Properties and Centerpoint Realty agrees to
refrain from challenging the Facility Agreement or any Loan Document
delivered in connection with any Construction Loan and not to oppose any
plan of reorganization or rehabilitation proposed or approved by the
Lenders in any Bankruptcy Proceeding on the basis that Centerpoint
Properties or Centerpoint Realty is entitled to any payments until all of
Borrower's Liabilities have been paid in full.
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<PAGE>
(l) Neither Centerpoint Properties nor Centerpoint Realty shall
commence any Bankruptcy Proceeding against the Borrower, or exercise any
right to take any action which could terminate or in any way adversely
affect the Facility Agreement or any Construction Loan Documents or the
availability of any of the collateral for any Construction Loan to pay and
satisfy each Construction Loan in full.
(m) The foregoing provisions are solely for the purpose of defining
the relative rights of the Lenders, Centerpoint Properties and Centerpoint
Realty, and nothing herein shall impair, as between the Borrower and the
Lenders, the obligation of the Borrower, which is unconditional and
absolute, to pay each Construction Loan and all other Borrower's
Liabilities in accordance with their terms, nor shall anything herein
prevent the Lenders and/or Agent from exercising all remedies otherwise
permitted by applicable law or under the Facility Agreement or any Loan
Document executed in connection with any Construction Loan.
16. Centerpoint Realty hereby further represents and warrants to and
covenants and agrees with the Lenders as follows:
(a) Centerpoint Realty is the holder of one hundred percent of the
issued and outstanding shares of the stock of Borrower, and, at all times
prior to the later of the Facility Maturity Date and the repayment in full
of all of Borrower's Liabilities, Centerpoint Realty shall hold one hundred
percent of the issued and outstanding shares of the stock of the Borrower.
(b) In the event Centerpoint Realty shall receive any Distribution
(i) after the occurrence and during the continuance of an Event of Default,
or (ii) after the occurrence and during the continuance of any Default
which is not cured during any applicable cure period, Centerpoint Realty
will hold such Distribution in trust for, and upon demand pay, deliver and
assign such Distribution to, the Lenders for application to Borrower's
Liabilities.
(c) The foregoing provisions are solely for the purpose of defining
the relative rights of the Lenders and Centerpoint Realty, and nothing
herein shall impair, as between the Borrower and the Lenders, the
obligation of the Borrower, which is unconditional and absolute, to pay
each Construction Loan and all other Borrower's Liabilities in accordance
with their terms, nor shall anything herein prevent the Lenders and/or
Agent from exercising all remedies otherwise permitted by applicable law or
under the Facility Agreement or any Loan Document executed in connection
with any Construction Loan.
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<PAGE>
17. Centerpoint Properties hereby further represents and warrants to and
covenants and agrees with the Lenders as follows:
(a) Centerpoint Properties has delivered to Lenders true and complete
fully executed copies of the Line of Credit Loan Documents, and such
documents have not been amended, modified or supplemented in any way.
(b) Without the Lenders' prior, written consent, which may be denied
in the Lenders' sole and absolute discretion, the Line of Credit Loan
Documents will not be (i) supplemented, or (ii) amended to modify the terms
of payment, maturity date or any other business terms thereof, provided,
however, the stated principal amount of the Line of Credit Loan may be
increased without the prior consent of the Lenders. In the event of any
such increase, Centerpoint Properties hereby expressly agrees that all
provisions of this Agreement shall apply in full to the Line of Credit Loan
as so increased.
(c) Without the Lenders' prior, written consent, which may be denied
in the Lenders' sole and absolute discretion, Centerpoint Properties shall
not assign all or any part of its interest in the Line of Credit Loan or in
any Put Loan.
(d) Centerpoint Properties shall not at any time demand or retain any
voluntary or optional payment or prepayment of any portion of the Line of
Credit Loan from the Borrower, which optional or voluntary payments or
prepayments are expressly prohibited hereby.
(e) Without the prior written consent of the Lenders, Centerpoint
Properties will not assert, collect or enforce all or any portion of the
obligations under the Line of Credit Documents, or enforce its rights and
remedies under the Line of Credit Loan Documents.
(f) Other than payments expressly permitted by Section 13 hereof,
Centerpoint Properties shall not at any time demand or retain any voluntary
or optional payment or prepayment of any portion of any Put Loan from the
Borrower, which optional or voluntary payments or prepayments are expressly
prohibited hereby.
(g) Without the prior written consent of the Lenders, Centerpoint
Properties will not assert, collect or enforce (other than as permitted in
Section 13 hereof) all or any portion of the obligations under any Put
Loan.
(h) Without the Lenders' prior, written consent, which may be denied
in the Lenders' sole and absolute discretion,
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<PAGE>
Centerpoint Properties shall not assign all or any part of its interest in
the Asset Transfer Indebtedness.
(i) Other than payments expressly permitted by Section 10 hereof,
Centerpoint Properties shall not at any time demand or retain any voluntary
or optional payment or prepayment of any portion of the Asset Transfer
Indebtedness from the Borrower, which optional or voluntary payments or
prepayments are expressly prohibited hereby.
(j) Without the prior written consent of the Lenders, Centerpoint
Properties will not assert, collect (other than as permitted in Section 10
hereof) or enforce all or any portion of the obligations assumed by
Borrower under the Asset Transfer Assumption Agreement.
(k) If Centerpoint Properties, in violation of the provisions set
forth herein, shall commence, prosecute or participate in any suit, action
or proceeding against Borrower in connection with the Asset Transfer
Indebtedness, the Line of Credit Loan Documents or any Put Loan, as the
case may be, the Lenders and/or Agent may intervene and interpose such
defense or plea in their or its own name or in the name of the Borrower,
and may, in any event, have standing to restrain the enforcement of the
provisions of the Asset Transfer Assumption Agreement, the Line of Credit
Loan Documents or the applicable Put Loan Documents, as the case may be, in
their or its own name or in the name of Borrower in the same suit, action
or proceeding or in an independent suit, action or proceeding.
(l) The foregoing provisions are solely for the purpose of defining
the relative rights of the Lenders and Centerpoint Properties, and nothing
herein shall impair, as between the Borrower and the Lenders, the
obligation of the Borrower, which is unconditional and absolute, to pay
each Construction Loan and all other Borrower's Liabilities in accordance
with their terms, nor shall anything herein prevent the Lenders and/or
Agent from exercising all remedies otherwise permitted by applicable law or
under the Facility Agreement or any Loan Document executed in connection
with any Construction Loan.
18. In the event of any proceedings to liquidate, dissolve or wind up the
Borrower, or of any execution, sale, receivership, insolvency, bankruptcy,
liquidation, readjustment, reorganization, or other similar proceedings relative
to the Borrower or its property (a "Bankruptcy Proceeding"), all of Borrower's
Liabilities shall be preferred in payment over the Asset Transfer Indebtedness,
the Line of Credit Loan, each and every Project Loan and, to the extent
unsecured or undersecured, each and every Put Loan, and all of Borrower's
Liabilities shall first be paid in full before any payment is made upon the
Asset Transfer Indebtedness, the Line of Credit Loan, any Project Loan or any
unsecured or undersecured
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<PAGE>
portion of any Put Loan; and in the event any payment or distribution of any
kind or character, whether in cash, property or securities, shall be made upon
or in respect of the Asset Transfer Indebtedness, the Line of Credit Loan, any
Project Loan or any unsecured or undersecured portion of any Put Loan as a
result of any Bankruptcy Proceeding, such payment or distribution shall be paid
over to the Lenders for application in payment of the Borrower's Liabilities
until all of the Borrower's Liabilities shall have been paid or satisfied in
full.
19. Each of Centerpoint Properties and Centerpoint Realty undertakes and
agrees for the benefit of the Lenders to execute, verify, deliver and file any
proofs of claim, consents, assignments or other instruments which the Lenders or
Agent may at any time reasonably require in connection with any Bankruptcy
Proceeding in order to effectuate the agreements contained herein.
20. No right of the Lenders to enforce the subordination of the Asset
Transfer Indebtedness, the Line of Credit Loan, each Project Loan and each Put
Loan as herein provided shall at any time or in any way be affected or impaired
by any failure to act on the part of the Borrower, or by any noncompliance by
the Borrower with any of the terms, provisions and covenants of the Asset
Transfer Indebtedness, the Line of Credit Loan, any Project Loan or any Put
Loan, regardless of any knowledge thereof that the Lenders or Agent may have or
be otherwise charged with.
21. Each of Centerpoint Properties and Centerpoint Realty hereby
represents and warrants to Lenders that it has full power and authority to enter
into and perform its obligations hereunder, that this Agreement has been duly
authorized, executed and delivered and constitutes the legal, valid and binding
obligations of such party enforceable in accordance with its terms.
22. All notices or other communications required or permitted hereunder
shall be (a) in writing and shall be deemed to be given when either (i)
delivered in person, (ii) received after deposit in a regularly maintained
receptacle of the United States mail as registered or certified mail, postage
prepaid, (iii) when received if sent by private courier service, or (iv) on the
day on which the party to whom such notice is addressed refuses delivery by mail
or by private courier service and (b) addressed as follows:
To LaSalle: LaSalle National Bank
135 South LaSalle Street
Suite 1225
Chicago, Illinois 60603
Attn: John C. Hein
First Vice President
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<PAGE>
with a copy to: Miller, Shakman, Hamilton, Kurtzon
& Schlifke
208 South LaSalle Street
Suite 1100
Chicago, Illinois 60604
Attn: Michael S. Kurtzon
To USBank: US Bank National Association
111 East Wacker Drive
Suite 3000
Chicago, Illinois 60601
Attention: Elliott Quigley
with a copy to:
Charles R. Haynor
Briggs and Morgan
2400 IDS Center
80 South 8th Street
Minneapolis, MN 55402
To Borrower: Centerpoint Development Corporation
1808 Swift Road
Oak Brook, Illinois 60523
Attention: Paul S. Fisher
with a copy to:
Ungaretti & Harris
3500 Three First National Plaza
Chicago, Illinois 60602
Attn: Richard A. Ungaretti
To Centerpoint Centerpoint Properties Trust
Properties: 1808 Swift Road
Oak Brook, Illinois 60523
Attention: Paul S. Fisher
with a copy to:
Ungaretti & Harris
3500 Three First National Plaza
Chicago, Illinois 60602
Attn: Richard A. Ungaretti
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<PAGE>
To Centerpoint Centerpoint Realty Services Corporation
Realty: 1808 Swift Road
Oak Brook, Illinois 60523
Attention: Paul S. Fisher
with a copy to:
Ungaretti & Harris
3500 Three First National Plaza
Chicago, Illinois 60602
Attn: Richard A. Ungaretti
or to each such party at such other addresses as such party may designate in a
written notice to the other parties.
23. As a further inducement to Lenders to enter into the Facility
Agreement, each of Borrower, Centerpoint Properties and Centerpoint Realty each
covenants and agrees that the state and federal courts within Cook County,
Illinois shall have jurisdiction of any action or proceeding relating to, or
arising under or in connection with this Agreement and each of Borrower,
Centerpoint Properties and Centerpoint Realty consents to personal jurisdiction
of such courts and waives any objection to such courts' jurisdiction. Each of
Borrower, Centerpoint Properties and Centerpoint Realty hereby irrevocably
appoints Paul S. Fisher, c/o CenterPoint Properties Trust, 1808 Swift Road, Oak
Brook, Illinois 60523 as its attorney in fact to accept such service. Service
so made shall be deemed completed upon actual receipt or refusal to accept
receipt. Nothing in this Section 23 shall affect the right of Lenders to serve
legal process in any other manner permitted by law or affect the right of
Lenders to bring any action or proceeding against any of Borrower, Centerpoint
Properties or Centerpoint Realty in the courts of any other jurisdiction or to
effectuate in any other jurisdiction any judgment entered by a court of
competent jurisdiction.
24. ALL OF THE PARTIES TO THIS AGREEMENT WAIVE TO THE FULLEST EXTENT
PERMITTED BY LAW ANY RIGHT TO TRIAL BY JURY IN ANY CIVIL ACTION OR CIVIL
PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR ANY OF THE
DOCUMENTS OR INSTRUMENTS EXECUTED AND DELIVERED PURSUANT HERETO, OR OTHERWISE
RELATING TO THIS AGREEMENT OR SUCH OTHER DOCUMENTS AND INSTRUMENTS, OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, AND AGREE THAT ANY SUCH ACTION OR
PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. EACH OF
BORROWER, CENTERPOINT PROPERTIES, AND CENTERPOINT REALTY WAIVES TO THE FULLEST
EXTENT PERMITTED BY LAW ALL RIGHT TO (A) INTERPOSE ANY COUNTERCLAIM THEREIN
UNLESS SUCH PARTY WOULD BE BARRED FROM ASSERTING SUCH COUNTERCLAIM IN A SEPARATE
ACTION BY APPLICABLE LAW OR RULES OF COURT, AND (B) HAVE THE SAME CONSOLIDATED
WITH ANY OTHER OR SEPARATE SUIT, ACTION OR PROCEEDING
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<PAGE>
UNLESS CONSOLIDATION IS REQUIRED UNDER APPLICABLE LAW OR RULES OF COURT.
25. This Agreement and any and all claims arising from or relating to this
Agreement shall be construed and interpreted in accordance with the internal
laws (and not the conflict of laws principles) of the State of Illinois.
26. The covenants and agreements of Centerpoint Properties and Centerpoint
Realty contained in this Agreement and any restrictions on Centerpoint
Properties and Centerpoint Realty shall cease upon the later of the Facility
Maturity Date or the repayment in full of all of Borrower's Liabilities.
27. This Agreement may be signed in multiple counterparts with the same
effect as if all signatories had executed the same instrument.
28. All rights, powers and remedies provided herein are intended to be
limited to the extent necessary so that they will not render this Agreement
invalid or unenforceable under any applicable law. If any term of this
Agreement shall be held to be invalid or unenforceable, the validity and
enforceability of the other terms of this Agreement shall in no way be affected
thereby.
29. Whenever any of the parties hereto is referred to, such reference
shall be deemed to include the successors and assigns of such party; and all the
covenants, promises and agreements in this Agreement contained by or on behalf
of any party shall bind and inure to the benefit of the respective successors
and assigns of such party, whether so expressed or not.
30. This Agreement and the provisions hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party
against which enforcement of the change, waiver, discharge or termination is
sought.
[Signature Page Follows]
- 15 -
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this agreement as of
the date first set forth above.
BORROWER:
CENTERPOINT DEVELOPMENT
CORPORATION, an Illinois
corporation
ATTEST:
By: By:
---------------------- ---------------------------
Its: Its:
--------------------- --------------------------
LENDERS:
ATTEST: LASALLE NATIONAL BANK
By: By:
---------------------- ---------------------------
Its: Its:
--------------------- --------------------------
ATTEST: U.S. BANK NATIONAL ASSOCIATION
By: By:
---------------------- ---------------------------
Its: Its:
--------------------- --------------------------
SUBORDINATED LENDERS:
CENTERPOINT PROPERTIES TRUST, a
Maryland real estate investment
trust
ATTEST:
By: By:
---------------------- ---------------------------
Its: Its:
--------------------- --------------------------
CENTERPOINT REALTY SERVICES
CORPORATION, an Illinois
corporation
ATTEST:
By: By:
---------------------- ---------------------------
Its: Its:
--------------------- --------------------------
-16-
<PAGE>
EXHIBIT "B-1"
PROMISSORY NOTE
Dated: _________, _____
FOR VALUE RECEIVED, the undersigned CENTERPOINT DEVELOPMENT CORPORATION, an
Illinois corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
LASALLE NATIONAL BANK, a national banking association ("Lender"), on the dates
designated herein, the principal amount of __________________ and NO/100 DOLLARS
($_________.00) or so much thereof as may now or hereafter be disbursed by
Lender to or for the benefit of Borrower pursuant to the terms and provisions of
that certain Construction Loan Facility Agreement dated as of July 31, 1998 by
and among Borrower, Lender, USBank and Agent (as the same may be amended,
restated, supplemented, or otherwise modified from time to time, the "Facility
Agreement"). Capitalized terms used herein, and not otherwise defined herein,
shall have the meanings ascribed to such terms in the Facility Agreement.
The Borrower further promises to pay interest on the balance of principal
from time to time outstanding and unpaid hereon from the date advanced until
such principal amount is paid in full at such interest rates (which shall not
exceed the maximum rate permitted by applicable law) as are specified in the
Facility Agreement. Interest shall be payable monthly in arrears commencing on
the first day of ____, ____ and the first day of each successive month
thereafter through and including the first day of ________, _____, with a final
payment of all accrued unpaid interest, together with the entire unpaid
remaining principal balance of the indebtedness evidenced hereby, due and
payable on _________ __, _____ (the "Maturity Date"), unless the indebtedness
evidenced hereby is accelerated as provided herein.
All payments of principal and interest in respect of this Note shall be
made to the Agent in lawful money of the United States of America in same day
funds in accordance with the terms of the Facility Agreement.
This Note is one of the Notes referred to in, is executed and delivered
pursuant to, and is entitled to the benefits of, the Facility Agreement, to
which Facility Agreement reference is hereby made for a statement of the terms
and conditions under which this Note may be prepaid or the indebtedness
evidenced hereby accelerated or extended. The terms and conditions of the
Facility Agreement are hereby incorporated in their entirety herein by reference
as though fully set forth herein. Upon the occurrence of certain Events of
Default, as more particularly described in the Credit Agreement, the unpaid
principal amount evidenced by this Note shall become, and upon the occurrence of
certain other Events
<PAGE>
of Default, such unpaid principal amount may be declared to be, due and payable
in the manner, upon the conditions and with the effect provided in the Facility
Agreement.
This Note is secured by certain liens and security interests granted
pursuant to the Loan Documents executed and delivered in connection with the
Construction Loan evidenced by this Note and the promissory note of even date
herewith and equal stated principal amount hereto by Borrower to the order of
USBank (the "USBank Note"). Reference is made to such Loan Documents (the
"Collateral Documents") for the terms and conditions governing the collateral
security for the indebtedness of the Borrower evidenced hereby.
This Note is executed by Borrower simultaneously with the USBank Note, and
this Note and the USBank Note are equally secured by the Collateral Documents
without priority or preference one over the other.
Demand, presentment, diligence, protest and notice of nonpayment are hereby
waived by the Borrower.
This Note shall be deemed to be an obligation under the laws of the State
of Illinois and for all purposes shall be governed by, construed and enforced in
accordance with the internal laws (as opposed to conflicts of law provisions) of
said State, and any applicable laws of the United States.
BORROWER WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHT TO TRIAL
BY JURY IN ANY CIVIL ACTION OR CIVIL PROCEEDING TO ENFORCE THIS NOTE, OR
OTHERWISE RELATING TO THIS NOTE, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING
SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. BORROWER ALSO WAIVES TO
THE FULLEST EXTENT PERMITTED BY LAW ALL RIGHT TO (A) INTERPOSE ANY COUNTERCLAIM
THEREIN UNLESS BORROWER WOULD BE BARRED FROM ASSERTING SUCH COUNTERCLAIM IN A
SEPARATE ACTION BY APPLICABLE LAW OR RULES OF COURT, AND (B) HAVE THE SAME
CONSOLIDATED WITH ANY OTHER OR SEPARATE SUIT, ACTION OR PROCEEDING UNLESS
CONSOLIDATION IS REQUIRED UNDER APPLICABLE LAW OR RULES OF COURT.
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed and
delivered by its duly authorized officer as of the day and year first above
written.
CENTERPOINT DEVELOPMENT
CORPORATION, an Illinois
corporation
By:
---------------------------
Its:
--------------------------
2
<PAGE>
EXHIBIT "B-2"
PROMISSORY NOTE
Dated: _________, ______
FOR VALUE RECEIVED, the undersigned CENTERPOINT DEVELOPMENT CORPORATION, an
Illinois corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
U.S. BANK NATIONAL ASSOCIATION, a national banking association ("Lender"), on
the dates designated herein, the principal amount of __________________ and
NO/100 DOLLARS ($_________.00) or so much thereof as may now or hereafter be
disbursed by Lender to or for the benefit of Borrower pursuant to the terms and
provisions of that certain Construction Loan Facility Agreement dated as of July
31, 1998 by and among Borrower, Lender, LaSalle and Agent (as the same may be
amended, restated, supplemented, or otherwise modified from time to time, the
"Facility Agreement"). Capitalized terms used herein, and not otherwise defined
herein, shall have the meanings ascribed to such terms in the Facility
Agreement.
The Borrower further promises to pay interest on the balance of principal
from time to time outstanding and unpaid hereon from the date advanced until
such principal amount is paid in full at such interest rates (which shall not
exceed the maximum rate permitted by applicable law) as are specified in the
Facility Agreement. Interest shall be payable monthly in arrears commencing on
the first day of ____, ____ and the first day of each successive month
thereafter through and including the first day of ________, _____, with a final
payment of all accrued unpaid interest, together with the entire unpaid
remaining principal balance of the indebtedness evidenced hereby, due and
payable on _________ __, _____ (the "Maturity Date"), unless the indebtedness
evidenced hereby is accelerated as provided herein.
All payments of principal and interest in respect of this Note shall be
made to the Agent in lawful money of the United States of America in same day
funds in accordance with the terms of the Facility Agreement.
This Note is one of the Notes referred to in, is executed and delivered
pursuant to, and is entitled to the benefits of, the Facility Agreement, to
which Facility Agreement reference is hereby made for a statement of the terms
and conditions under which this Note may be prepaid or the indebtedness
evidenced hereby accelerated or extended. The terms and conditions of the
Facility Agreement are hereby incorporated in their entirety herein by reference
as though fully set forth herein. Upon the occurrence of certain Events of
Default, as more particularly described in the Credit Agreement, the unpaid
principal amount evidenced by this Note shall become, and upon the occurrence of
certain other Events
<PAGE>
of Default, such unpaid principal amount may be declared to be, due and payable
in the manner, upon the conditions and with the effect provided in the Facility
Agreement.
This Note is secured by certain liens and security interests granted
pursuant to the Loan Documents executed and delivered in connection with the
Construction Loan evidenced by this Note and the promissory note of even date
herewith and equal stated principal amount hereto by Borrower to the order of
LaSalle (the "LaSalle Note"). Reference is made to such Loan Documents (the
"Collateral Documents") for the terms and conditions governing the collateral
security for the indebtedness of the Borrower evidenced hereby.
This Note is executed by Borrower simultaneously with the LaSalle Note, and
this Note and the LaSalle Note are equally secured by the Collateral Documents
without priority or preference one over the other.
Demand, presentment, diligence, protest and notice of nonpayment are hereby
waived by the Borrower.
This Note shall be deemed to be an obligation under the laws of the State
of Illinois and for all purposes shall be governed by, construed and enforced in
accordance with the internal laws (as opposed to conflicts of law provisions) of
said State, and any applicable laws of the United States.
BORROWER WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHT TO TRIAL
BY JURY IN ANY CIVIL ACTION OR CIVIL PROCEEDING TO ENFORCE THIS NOTE, OR
OTHERWISE RELATING TO THIS NOTE, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING
SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. BORROWER ALSO WAIVES TO
THE FULLEST EXTENT PERMITTED BY LAW ALL RIGHT TO (A) INTERPOSE ANY COUNTERCLAIM
THEREIN UNLESS BORROWER WOULD BE BARRED FROM ASSERTING SUCH COUNTERCLAIM IN A
SEPARATE ACTION BY APPLICABLE LAW OR RULES OF COURT, AND (B) HAVE THE SAME
CONSOLIDATED WITH ANY OTHER OR SEPARATE SUIT, ACTION OR PROCEEDING UNLESS
CONSOLIDATION IS REQUIRED UNDER APPLICABLE LAW OR RULES OF COURT.
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed and
delivered by its duly authorized officer as of the day and year first above
written.
CENTERPOINT DEVELOPMENT
CORPORATION, an Illinois
corporation
By:
---------------------------
Its:
--------------------------
<PAGE>
PUT OPTION AGREEMENT
THIS PUT OPTION AGREEMENT is entered into as of this _____ day of
____________, _____ ("Agreement") by and between CENTERPOINT DEVELOPMENT
CORPORATION, an Illinois corporation ("Developer"), and CENTERPOINT PROPERTIES
TRUST, a Maryland real estate investment trust ("CNT").
R E C I T A L S:
A. Developer is or will be the fee title holder of the real estate
legally described on EXHIBIT "A" attached hereto and made a part hereof
("Land").
B. Developer plans to construct a building containing approximately
______________ square feet of space and other related improvements
(collectively, the "Building") on the Land and with the intention of selling the
Land and Building (collectively, the "Project").
C. Developer has entered into a construction contract dated
____________________ with ______________________ (the "General Contractor") for
the construction of the Building and either Developer or General Contractor has
entered into an agreement dated ________________ with ____________________ (the
"Architect") for architectural services.
[[ D. Developer has entered into a lease agreement dated ______________ with
_____________________ to lease all or a substantial portion of the Building. As
used herein "Lease" shall mean the foregoing lease, and shall not include (i)
any modifications or amendments of the foregoing lease not identified in the
preceding sentence, or (ii) any other lease, whether executed prior to or after
the date of this Agreement, of all or any portion of the Project.
OR
D. No lease of all or any part of the Building exists as of the date
hereof. ]]
E. In order for Developer to obtain construction financing to build the
Building, Developer's construction lender ("Construction Lender") will require
Developer to cause CNT to enter into this Agreement.
F. CNT is willing to enter into this Agreement and acquire the Project
upon Substantial Completion (as defined in Section 5.f below) of the Project,
subject to the terms and conditions hereinafter set forth.
NOW, THEREFORE, for and in consideration of the mutual covenants and
promises hereinafter set forth, Developer and CNT hereby agree as follows:
1
<PAGE>
1. GRANT OF PUT OPTION. CNT hereby grants to Developer and Developer
hereby accepts from CNT the right and option ("Put Option") to require CNT to
purchase the Project for an amount equal to _____________________________ AND
_____/100 ($______________) DOLLARS ("Put Price") upon the terms and conditions
herein, and in the Purchase and Sale Agreement attached hereto as EXHIBIT "B"
and by this reference made a part hereof ("Purchase Agreement") set forth,
provided that Substantial Completion of the Project has occurred. [THE PUT
PRICE INCLUDES A CONTINGENCY AMOUNT OF _______________________________ AND
_____/100 ($______________) DOLLARS ("CONTINGENCY") TO BE USED TO PAY THE COSTS
INCURRED RELATING TO THE ITEMS IDENTIFIED ON EXHIBIT "F" ATTACHED HERETO AND BY
THIS REFERENCE MADE A PART HEREOF. IN THE EVENT THAT THE ACTUAL COST OF THOSE
ITEMS IS LESS THAN THE CONTINGENCY, THE PUT PRICE SHALL DECREASE BY ONE HALF OF
THE DIFFERENCE BETWEEN THE AMOUNT OF THE CONTINGENCY AND THE ACTUAL COSTS
INCURRED IN CONNECTION WITH THE ITEMS SET FORTH ON EXHIBIT "F". DEVELOPER SHALL
PROVIDE SUCH DOCUMENTATION REASONABLY REQUIRED BY CNT TO EVIDENCE THE ACTUAL
COSTS INCURRED BY DEVELOPER.]
2. EXERCISE OF PUT OPTION. Developer may exercise the Put Option at
anytime after Substantial Completion of the Project and prior to the date
("Outside Date") which is sixty (60) days subsequent to the date on which
Substantial Completion of the Project has occurred. Developer shall exercise
the Put Option by the delivery to CNT of four (4) copies of the Purchase
Agreement executed by Developer. CNT shall, within five (5) business days after
receipt of four (4) copies of the Purchase Agreement signed by Developer, either
(i) execute the Purchase Agreement and deliver two (2) signed copies to
Developer or (ii) if CNT, in its sole discretion, determines that the Project
does not meet its then current investment criteria, elect to make the Loan (as
defined in Section 3 below). In the event that CNT fails to respond within said
five (5) business day period, CNT shall be deemed to have elected to make the
Loan. In the event the Put Option is not exercised by Developer on or prior to
the Outside Date, this Agreement and the Put Option shall terminate as of 5:00
p.m. Chicago time on the Outside Date.
3. LOAN. In the event Developer exercises the Put Option and CNT elects
to make the Loan, CNT shall loan ("Loan") Developer an amount ("Loan Amount")
equal to the Put Price plus all costs and expenses incurred by Developer in
connection with the Loan. The Loan shall be made on the following terms and
conditions:
Lender: CNT.
Borrower: Developer.
Indemnitors: ______________________________.
Purpose: The proceeds of the Loan shall be applied as follows: (i)
first to the outstanding balance due from Developer to
satisfy its construction loan with respect to the Project
from Construction Lender, (ii) next to the outstanding
balance due from Developer to CenterPoint Realty Services
Corporation or CNT in connection with any loan relating to
the Project, and (iii) lastly to Developer.
2
<PAGE>
Recourse: Developer and Indemnitors shall be personally liable to CNT
for and shall indemnify CNT against all liability, claims,
costs and damages incurred by or asserted against CNT
arising out of any or all of the following: (i) waste
committed or permitted by the Developer or Indemnitors or
anyone acting by, through or under Developer or Indemnitors,
or from a failure to maintain any Project in the manner
required by the Loan Documents; (ii) fraud or willful,
deliberate and intentional material misrepresentation by
Developer or Indemnitors; (iii) failure to pay insurance
premiums, taxes (all amounts required to fund escrow and any
amounts required to pay taxes in excess of amounts held in
escrow), assessments, ground rent or any other lienable
impositions as required under the Loan Documents; (iv)
misapplication of and failure to pay to Lender after a
default under any of the Loan Documents of tenant security
deposits, insurance proceeds or condemnation proceeds; (v)
failure after a default under any of the Loan Documents to
pay to CNT all rents, income and profits, net of reasonable
and customary operating expenses; (vi) failure to perform
under the environmental covenants or indemnifications
described in the Environmental Indemnity Agreement of even
date herewith; (vii) destruction or removal of fixtures or
personal property securing the Loan from the Project, unless
replaced by items of equal value (except that Borrower shall
be allowed to remove obsolete personal property); (viii)
terminating, amending or entering into a lease of any
portion of the Project in violation of the Loan Documents;
(ix) failure to pay to CNT any rent, income or profits which
have been prepaid more than 30 days in advance; and (x)
willful or grossly negligent violation of applicable law by
Indemnitors or Developer.
Loan Fee: An amount designated by CNT on or before the Closing Date.
The Loan Fee shall not exceed two (2%) percent of the Put
Price. The Loan Fee shall be unconditionally earned by CNT
upon the funding of the Loan, but shall not be payable by
Developer to CNT until the earlier of the time of repayment
of the Loan or the Maturity Date.
Maturity Date: ___________________________.
Annual Interest
Rate: ____________________________.
Payments: Interest only, payable monthly on the first day of each
calendar month.
Prepayment: Prepayment shall be permitted.
Collateral: Mortgage encumbering the Project, Assignment of Leases and
Rents, and security interest in associated personal
property, fixtures and equipment.
3
<PAGE>
Title Insurance: ALTA Lender's Policy with exceptions and endorsements
reasonably satisfactory to Lender.
Expenses: Title premium, and other expenses relating to the Loan shall
be payable by Developer on the Closing Date.
Loan Documents: In the form of EXHIBITS "C1"-"C10" attached hereto and by
this reference made a part hereof.
Closing Date: The date designated by CNT no later than fifteen (15)
business days after its election to make the Loan.
Call Option: Developer shall, upon funding of the Loan, grant a Call
Option to CNT for a one (1) year term with the Call Option
price equal to the Loan Amount in the form of the Call
Option Agreement attached hereto as EXHIBIT "D" and by this
reference made a part hereof.
Manager: Developer agrees to retain CNT as a property manager
pursuant to the terms of the Management Agreement attached
hereto as EXHIBIT "C-10".
Other Provisions: The following documents shall also be provided:
1. Certified corporate, partnership or limited liability
company organizational documents, as applicable,
evidencing good standing, authority to accept the Loan
and other matters reasonably required by CNT;
2. Closing through an escrow with Chicago Title and Trust
Company;
3. Opinion of Developer's counsel in form and substance
reasonably satisfactory to Lender;
4. Such other matters as CNT customarily requires.
4. COMPENSATION. As a material inducement for CNT agreeing to enter into
this Put Agreement, Developer is hereby obligated to pay to CNT an amount equal
to ____________________ ________________________________ ($___________) DOLLARS
("Put Fee"). [CHOOSE ALTERNATE A, B OR C BELOW] ALTERNATE A: The Put Fee is
unconditionally earned by CNT upon CNT's execution of this Agreement, but shall
not be paid to CNT until the date of the earlier of the (i) sale of the Project
to CNT as a result of the Developer's exercise of the Put Option, (ii) sale of
the Project to a third party or (iii) the making of the Loan. ALTERNATE B: The
Put Fee shall be unconditionally earned by CNT on a monthly basis commencing on
the date of execution of this Agreement and ending on the date the Put Fee is
paid to CNT. The Put Fee shall be paid to CNT on the date of the earlier of the
(i) sale of the Project to CNT as a result of the Developer's exercise of the
Put Option, (ii) sale of the Project to a third party
4
<PAGE>
or (iii) the making of the Loan. ALTERNATE C: The Put Fee shall be
unconditionally earned by CNT on the earlier of the exercise of the Put Option
or the Outside Date, but shall not be paid to CNT until the date of the earlier
of the (i) sale of the Project to CNT as a result of the Developer's exercise of
the Put Option, (ii) sale of the Project to a third party or (iii) the making of
the Loan.
5. AGREEMENT TO BUILD.
a. PLANS AND SPECIFICATIONS. Developer and CNT hereby acknowledge
and agree that they have reviewed and approved the plans and specifications
described on EXHIBIT "E" attached hereto and by this reference made a part
hereof ("Plans").
b. WORK. For purposes of this Agreement, the "Work" means all
construction and services required by the Plans necessary to fully and
completely construct the Building. Developer shall perform or cause to be
performed all Work and furnish all materials, equipment, labor services,
scaffolds, hoisting, transportation, tools, leases and machinery necessary to
perform and protect the Work. All equipment and materials supplied as part of
the Work shall be new and all workmanship shall be of the best quality in strict
accordance with this Agreement and the Plans.
c. CHANGES IN THE WORK. Developer shall have no right to change,
modify or amend, in any manner, the Plans previously approved by CNT without the
prior written consent of CNT.
d. INSURANCE AND BONDS.
i. GENERAL CONTRACTOR INSURANCE. Developer hereby agrees to
cause the
General Contractor approved by CNT to maintain worker's compensation and
general liability policies in form, amount and substance approved by CNT
and to deliver evidence of the same to CNT concurrently herewith.
Developer shall cause General Contractor to name CNT as an additional
insured under said policies as its interest may appear.
ii. OWNER'S INSURANCE. Developer shall provide, pay for and
maintain and deliver evidence to CNT concurrently herewith of all-risk
builder's risk insurance for the full insurable value of the Work in form
and content approved by CNT. The builder's risk policy shall name CNT as
an additional insured as its interest may appear.
iii. PAYMENT AND PERFORMANCE BONDS. If requested by any
governmental authority, Developer shall further cause General Contractor to
obtain a payment and performance bond in the amount of the Work naming
Developer and CNT as dual obligees. The payment and performance bond shall
be issued in a surety approved by CNT.
e. COMPLETION OF THE WORK. Developer shall cause General Contractor
to (i) prosecute promptly and diligently the Work, (ii) supply enough properly
skilled workmen and proper materials to complete the Work, and (iii) prosecute
and complete the Work as provided in the Lease and in the Plans. Developer
shall Substantially Complete the Work on or before [THE MATURITY DATE OF THE
CONSTRUCTION LOAN] subject to "force majeure" delays as set forth in the Lease,
5
<PAGE>
provided the tenant's obligations under the Lease remain in full force and
effect, or "Unavoidable Delays," in the event no lease is in existence, which in
any event shall not exceed the Put Termination Date. The Work shall be
completed in a good and workmanlike manner, free and clear of defects and liens
and in strict accordance with (a) the Plans, (b) all federal, state and local
laws, codes, ordinances and regulations relating thereto, (c) all permits,
licenses and other governmental approvals which have been obtained or are
required to be obtained for the completion of the Work, and (d) the Lease. For
the purposes of this Agreement, "Unavoidable Delays" shall mean delays due to
strikes, acts of God, enemy action, civil commotion, fire, unavoidable casualty,
materials shortages or other causes beyond the control of Developer.
f. SUBSTANTIAL COMPLETION. For purposes of this Agreement,
"Substantial Completion" of the Work shall be deemed to have occurred upon the
date the last of the following provisions have been complied with and satisfied
by Developer (unless any of such provisions are waived by CNT in its sole
discretion):
i. Developer shall have furnished to CNT and Title Insurer
copies of all final waivers or lien and final sworn statements from General
Contractor, all subcontractors and materialmen;
ii. Substantial Completion as defined in the Lease shall have
occurred;
iii. Developer shall have delivered to CNT a certificate from
General Contractor dated within fifteen (15) days prior to the exercise of
the Put Option certifying that no notices of violations of laws or
ordinances arising from the Work were served upon General Contractor during
the performance of the Work and General Contractor has no knowledge that
the Project is in violation of any applicable laws or ordinances;
iv. Developer shall have furnished to CNT an "as built" set of
Plans, showing all paving, driveways, fences, interior and exterior
improvements and original guaranties and warranties from the General
Contractor and all subcontractors and material suppliers, including, but
not limited to, a ____________ (_____) year full system roof warranty;
v. Developer shall have caused Architect to furnish to CNT a
certificate stating (a) that the Work is sufficiently complete in
accordance with the Plans so that Tenant can occupy the Building for the
use intended under the Lease, (b) that the Building complies with all
applicable laws and ordinances and (c) such other information reasonably
requested by CNT or Tenant.
vi. Developer shall have furnished to CNT a final certificate of
occupancy for the Project or, if available and if sufficient to permit the
tenant, if any, for the Project to occupy and use the Project as
contemplated by the Lease for such Project, a temporary certificate of
occupancy.
6
<PAGE>
g. DEVELOPER'S RELEASE, INDEMNITY AND WARRANTY.
i. RELEASE. Developer hereby releases CNT and its affiliates,
directors, officers, shareholders, employees and agents (the "Released
Parties") from any and all claims or causes of action whatsoever which
Developer or General Contractor might otherwise possess resulting in or
from or in any way connected with any loss covered or which should have
been covered by insurance, including the deductible portion thereof,
maintained and/or required to be maintained by Developer or General
Contractor, as the case may be, in accordance with this Agreement.
ii. INDEMNITY. To the fullest extent permitted by law,
Developer hereby indemnifies, defends and holds harmless CNT and CNT's
directors, officers, shareholders, employees and agents (the "Indemnified
Parties") from and against any and all loss, cost, expense, damage, injury,
liability, claim, demand, penalty or cause of action (including attorneys'
fees), directly or indirectly arising out of, resulting from or related to
(in whole or in part) (1) the Work or (2) any loss, cost, expense, damage,
injury, claim, demand, penalty or cause of action that is attributable to
bodily injury, sickness, disease or death, or to injury to or destruction
of tangible property (other than the Work itself), including the loss of
use resulting therefrom, and caused in whole or in part by any negligent
act or omission of the General Contractor, any subcontractor, anyone
directly or indirectly employed by any of them, or anyone for whose acts
any of them may be liable.
iii. WARRANTY. Developer hereby warrants and guarantees that the
Work shall be (i) of best quality, containing all new materials, (ii) free
of defects and fit for its intended use for a period of one (1) year after
the later of (y) the date of substantial completion under the contract with
the General Contractor dated ____________________ or (z) _________________
and (iii) completed strictly in accordance with the Plans. In the event
that any work is performed to correct, repair or remedy any portion of the
Work pursuant to any guarantee, the guarantee periods specified above or
elsewhere herein or in any other agreement applicable to the Work shall
begin anew from the date of Tenant's and/or CNT's acceptance of such work.
h. INSPECTIONS. From time to time, Developer will cooperate (and
cause General Contractor to cooperate) with CNT to arrange for inspections of
the Work in progress by Tenant, CNT or its designated agents.
i. TERMINATION OF PUT OPTION. In the event Substantial Completion
does not occur on or before the earlier of (i) the date which is mandated in the
Lease, or (ii) eighteen (18) months following the date of this Agreement (the
"Put Termination Date"), the Put Option shall terminate.
j. EXISTENCE OF LEASE AND RIGHT TO LEASE. In the event no Lease is
identified in Paragraph D of the Recitals to this Agreement, the requirements
and provisions of Sections 5.e and 5.f of this Agreement insofar as such
requirements and provisions relate to a Lease shall be deemed waived by CNT and
of no force or effect. However, Developer must obtain the prior approval of
7
<PAGE>
CNT prior to entering into any lease(s) relating to the Project subsequent to
the date of this Agreement.
6. NOTICES. All notices or other communications required or permitted
hereunder shall be in writing, and shall be personally delivered or sent by
facsimile telecommunication, by overnight air express service or by registered
or certified mail, postage prepaid, return receipt requested, addressed to the
parties hereto at their respective addresses set forth below. Such notice or
other communication shall be deemed given (a) upon receipt or upon refusal to
accept delivery if delivered by personal delivery or by facsimile
telecommunication, (b) one (1) business day after tendering to an overnight air
express service, or (c) three (3) business days after mailing if by registered
or certified mail.
To Developer: CenterPoint Development Corporation
1808 Swift Road
Oak Brook, Illinois 60523
Attention: Paul S. Fisher
Facsimile No.: 630-_______________
With a copy to: Ungaretti & Harris
3500 Three First National Plaza
Chicago, Illinois 60602
Attention: Richard A. Ungaretti, Esq.
Facsimile No.: 312-977-4405
To CNT: CenterPoint Properties Trust
1808 Swift Road
Oak Brook, Illinois 60523
Attention: Paul S. Fisher
Facsimile No.: 630-_______________
With a copy to: Ungaretti & Harris
3500 Three First National Plaza
Chicago, Illinois 60602
Attention: Richard A. Ungaretti, Esq.
Facsimile No.: 312-977-4405
Notice of change of address shall be given by written notice in the manner
detailed in this Section.
7. MISCELLANEOUS.
a. PARTIAL INVALIDITY. If any term or provision of this Agreement
or the application thereof to any person or circumstances shall, to any extent,
be invalid or unenforceable, the remainder of this Agreement, or the application
of such term or provision to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected
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thereby, and each such term and provision of this Agreement shall be valid and
be enforced to the fullest extent permitted by law.
b. WAIVERS. No waiver of any breach or any covenant or provision
herein contained shall be deemed a waiver of any preceding or succeeding breach
thereof, or of any other covenant or provision herein contained. No extension
of time for performance of any obligation or act shall be deemed an extension of
the time for performance of any other obligation or act.
c. SURVIVAL. The covenants, agreements, representations and
warranties made herein shall survive the exercise of the Put Option, the
Purchase Agreement and the Loan and shall extend to the respective successors,
heirs and assigns of Developer and CNT, subject to any limitations expressly set
forth herein.
d. PROFESSIONAL FEES. In the event of the bringing of any action or
suit by a party hereto against another party hereunder by reason of any breach
of any of the covenants, agreements or provisions on the part of the other party
rising out of this Agreement, the prevailing party shall be entitled to have and
recover of and from the other party all costs and expenses of the action or
suit, including, without limitation, actual attorneys' fees, accounting and
engineering fees, and any other professional fees resulting therefrom.
e. ENTIRE AGREEMENT. All Exhibits attached to this Agreement are
hereby incorporated herein by reference. This Agreement (including all Exhibits
attached hereto) contains the entire Agreement between the parties with respect
to the subject matter hereof and supersedes all prior understandings, if any,
with respect thereto. This Agreement may not be modified, changed, supplemented
or terminated, nor may any obligations hereunder be waived, except by written
instrument signed by the party to be charged or by its agent duly authorized in
writing or as otherwise expressly permitted herein. Other than as expressly set
forth in this Agreement, the parties do not intend to confer any benefit
hereunder on any person, firm or corporation other than the parties hereto.
f. TIME OF ESSENCE. Developer and CNT hereby acknowledge and agree
time is strictly of the essence with respect to each and every term, condition,
obligation and provision hereof.
g. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Illinois.
h. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and each of such counterparts shall, for all purposes, be deemed an
original and all such counterparts shall together constitute one and the same
agreement.
i. CAPTIONS. The captions in this Agreement are inserted only as a
matter of convenience and for reference and in no way define, limit or describe
the scope of this Agreement or the scope or content of any of its provisions.
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j. TERMS. The use of any pronoun in this Agreement shall include
the singular, plural, masculine, feminine and neuter, the use of the singular or
plural form shall include the plural or singular form and the use of any gender
shall include all genders, as the context may require.
k. BUSINESS DAYS. If the final day of any period or any date of
performance under this Agreement falls on a Saturday, Sunday or legal holiday,
then the final day of the period or the date of performance shall be extended to
the next day which is not a Saturday, Sunday or legal holiday.
l. CONSTRUCTION. The parties acknowledge that each party and its
counsel have received and approved this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
any amendments or Exhibits hereto.
IN WITNESS WHEREOF, Developer and CNT have entered into this Put Agreement
as of the day and year first above written.
DEVELOPER: CNT:
CenterPoint Development Corporation, CenterPoint Properties Trust,
an Illinois corporation a Maryland real estate investment
trust
By: By:
-------------------------- ----------------------------
Name: Name:
------------------- ---------------------
By:
----------------------------
Name:
---------------------
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EXHIBIT "A"
LEGAL DESCRIPTION
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EXHIBIT "B"
PURCHASE AND SALE AGREEMENT (PUT OPTION AGREEMENT)
THIS PURCHASE AND SALE AGREEMENT is dated as of this _____ day of
_________, 199_ ("Agreement") by and between CENTERPOINT DEVELOPMENT
CORPORATION, an Illinois corporation ("Seller"), and CENTERPOINT PROPERTIES
TRUST, a Maryland real estate investment trust ("Purchaser"). For the purposes
of this Agreement, "Effective Date" shall mean the date this Agreement is
accepted by Seller and an executed original thereof is delivered to Purchaser.
R E C I T A L S:
A. Seller currently is the fee title holder of certain real estate and
appurtenant rights consisting of approximately ________ acres of vacant land
("Real Estate") located in _________________, Illinois, legally described on
EXHIBIT "A" attached hereto and made a part hereof.
B. Pursuant to the terms hereof, Seller is required to construct on the
Real Estate a building containing approximately _______________ square feet and
other related improvements (collectively, the "Building").
[[ C. _________________, as landlord, and ____________________________, as
tenant ("Tenant"), have entered into that certain Industrial Building Lease
dated _______________ ("Lease") whereby Seller has agreed to construct the
Building on the Real Estate in accordance with the Plans, defined in the Put
Option Agreement dated ____________________ between Seller and Purchaser ("Put
Option Agreement"). The term "Lease" shall not be deemed to include (i) any
modifications or amendments of the foregoing lease not identified in the
preceding sentence, or (ii) any other lease of all or any portion of the
Project.
OR
C. Intentionally Deleted. ]]
D. Purchaser desires to purchase the Project (as hereinafter defined)
from Seller and Seller desires to sell the Project to Purchaser upon the terms
and conditions hereinafter set forth.
NOW, THEREFORE, for and in consideration of the Purchase Price (as
hereinafter defined) and the mutual promises, representations, warranties,
agreements, covenants and conditions set forth below and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Seller and Purchaser hereby agree as follows:
1. PURCHASE AND SALE. Subject to the terms and conditions of this
Agreement, Seller agrees to sell to Purchaser and Purchaser agrees to purchase
from Seller all of the following described property (collectively, the
"Project"):
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(a) The Real Estate.
(b) The Building.
(c) All equipment, mechanical systems, leasehold improvements,
appliances, tools, machinery, supplies, building materials, office equipment and
other personal property of every kind and character owned by Seller and attached
to, appurtenant to, located in, or used in connection with the operation of the
Building or Real Estate (collectively, "Personal Project"), but excluding any
personal property owned by tenants in possession, or public or private
utilities.
(d) All intangible property (collectively, the "Intangible Project")
owned or held by Seller in connection with the Real Estate, the Building or the
Personal Project, including, but not limited to (i) all contract rights,
(ii) all transferable licenses relating to the Project, (iii) all transferable
warranties covering the Project or any part thereof (including, but not limited
to, those relating to the occupancy, operation, construction or fabrication
thereof), (iv) all transferable certificates, permits and other similar
documents or authorizations pertaining to the ownership and operation of the
Project and (v) all transferable utility contracts, advertising materials, plans
and specifications, governmental approvals, occupancy permits, licenses and
development rights related to the Project and all site plans, surveys, as-built
plans and specifications, soil tests and all other information and documentation
in Seller's possession or control related to the Project.
2. PURCHASE PRICE. Subject to prorations and credits hereunder provided,
Purchaser agrees to pay an amount equal to
________________________________________ AND _____/100 ($_______________)
DOLLARS ("Purchase Price") for the Project. The Purchase Price shall be paid as
follows: on or before the Closing Date, Purchaser shall deposit with Title
Insurer (as hereinafter defined), as escrowee ("Escrowee") the balance of the
Purchase Price, plus or minus prorations, in cash, certified or cashier's check
or by federal wire transfer funds.
3. CONVEYANCE. In consideration of the Purchase Price, on or before the
Closing Date, Seller shall convey to Purchaser fee simple title to the Project,
by good, sufficient and recordable Special Warranty Deed ("Deed"), subject only
to the Permitted Exceptions (as hereinafter defined)
4. TITLE POLICY.
(a) TITLE COMMITMENT. No longer than ten (10) days following the
Effective Date, Seller shall, at Seller's sole cost and expense, provide
Purchaser with a title insurance commitment ("Title Commitment") prepared by
Chicago Title Insurance Company ("Title Insurer") covering the Project and
showing fee simple title in Seller.
(b) TITLE AND SURVEY CONDITIONS. The Title Commitment shall be
subject only to those matters set forth on EXHIBIT "B" attached hereto and made
a part hereof and all other title exceptions and survey conditions are
hereinafter collectively referred to as "Unpermitted Exceptions"). In the event
of any Unpermitted Exceptions, Seller shall have until two (2) business days
prior to the Closing in which to cause any such Unpermitted Exceptions to be
waived by Title
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Insurer or corrected and reflected in the Survey, as applicable. Failure of
Seller to cause such Unpermitted Exceptions to be waived by Title Insurer or
corrected and reflected in the Survey, as applicable, shall entitle Purchaser,
at Purchaser's election, either (x) to terminate this Agreement by written
notice to Seller, in which event this Agreement shall be null and void and of no
further force or effect, or (y) to accept title to the Project subject to such
Unpermitted Exceptions that Title Insurer has not removed or the surveyor has
not corrected on the Survey, as applicable, with a further right with respect to
each Unpermitted Exception then remaining (r) to deduct from the Purchase Price
amounts secured by any unpermitted lien or encumbrance of a definite or
ascertainable amount, or (s) in Purchaser's discretion, to cause Seller to cause
Title Insurer to issue its endorsement insuring against loss or damage caused by
any such Unpermitted Exception. In the event Purchaser elects to terminate this
Agreement in accordance with election (x) above as the result of an Unpermitted
Exception caused by Seller, then Purchaser shall be entitled to exercise all
other remedies available to it at law or in equity.
(c) TITLE POLICY. Through the Escrow, Seller shall, on the Closing
Date, at its sole cost and expense, cause Title Insurer to issue its current
form ALTA Owner's Title Insurance Policy ("Title Policy") in the amount of the
Purchase Price with (i) extended coverage over all general exceptions, (ii) a
3.1 zoning endorsement with parking, (iii) a waiver of the creditor's rights
exclusion and (iv) such other endorsements as Purchaser may reasonably require,
guaranteeing Purchaser's title to the Project and to all easements for the
benefit of the Project, subject only to the Permitted Exceptions and to those
Unpermitted Exceptions subject to which Purchaser agreed to take title pursuant
to subparagraph 5(b) above.
5. SURVEY.
No later than ten (10) days after the Effective Date, Seller, at
Seller's sole cost and expense, shall deliver to Purchaser a survey ("Survey")
of the Building and Real Estate prepared subsequent to Substantial Completion by
a licensed Illinois land surveyor and certified to have been prepared in
accordance with the Minimum Standard Detail Requirements for ALTA/ASCM Land
Title Surveys as adopted by the American Land Title Association and American
Congress on Surveying and Mapping (1992) as an Urban Survey, including Table A
requirements 1, 2, 3, 4, 6, 7(a), 7(b), 7(c), 8, 9, 10, 11(a), 11(b), 11(c) and
11(d) contained therein for the benefit of Purchaser and Title Insurer.
Notwithstanding the foregoing, the Survey shall include, by way of example and
not by limitation, (i) the legal description and correct address, if any, of the
Project, (ii) all improvements (including fences), if any, located on the
Project, (iii) easements (visible or recorded), whether benefitting or burdening
the Project, together with recording information concerning the documents
creating such easements, (iv) building lines, (v) curb cuts, (vi) sewage, water,
electricity, gas and other utility facilities, (vii) roads and means of physical
and record ingress and egress to and from the Project by public roads, (viii)
the gross square footage of the Project, (ix) the square footage of the
Building, (x) flood zone designation, (xi) the location of the Building on the
Real Estate to be within the applicable lot and setback lines and that the
Building does not encroach upon any adjoining properties or easements burdening
the Project, and (xii) improvements located within five (5) feet of the boundary
lines of the Project.
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6. ESCROW AND CLOSING.
(a) CLOSING. The transaction contemplated by this Agreement shall be
closed through an escrow ("Escrow") at the office of Title Insurer at 171 North
Clark Street, Chicago, Illinois, in accordance with the general provisions of
the usual form of "New York Style" Deed and Money Escrow Agreement ("Escrow
Agreement") then provided and used by the Escrowee with such special provisions
inserted in the Escrow Agreement as may be required to conform with this
Agreement. In the event of any conflict between the Escrow Agreement and this
Agreement, the terms of this Agreement shall prevail unless the Escrow Agreement
specifically recites it is intended to amend or modify this Agreement. Seller
agrees to execute any instrument, including gap undertakings, in form
customarily required by Escrowee in order to facilitate the "New York Style"
Closing.
(b) CLOSING COSTS. The cost of the Escrow and the New York Style
Closing shall be divided equally between Purchaser and Seller. Seller shall pay
for the cost of all state and county documentary stamp and transfer taxes, the
cost of the Title Policy and Survey. Any transfer tax required by local
ordinance shall be paid by the party made responsible thereunder or, if no
responsibility is assigned, by Seller.
7. CLOSING DOCUMENTS.
(a) SELLER'S CLOSING DOCUMENTS TO BE DELIVERED ON OR BEFORE THE
CLOSING DATE. Seller shall deliver to Escrowee, pursuant to the Escrow
Agreement, or to Purchaser, as applicable, and Seller hereby covenants and
agrees to deliver to Escrowee or to Purchaser, as applicable, on or before the
Closing Date, the following instruments and documents, all of which shall be
subject to Purchaser's prior review and approval as to form, scope and
substance, the delivery of each of which shall be a condition to Closing:
(i) The Deed.
(ii) Plat Act Affidavit, if necessary.
(iii) Affidavit of Non-Foreign Status described under the
Internal Revenue Code 1445, or otherwise establish to the satisfaction of
Title Insurer an exemption from withholding under the Foreign Investment in
Real Project Tax Act of 1980.
(iv) A bill of sale duly executed by Seller with warranty of
title in favor of Purchaser conveying the Personal Project to Purchaser
free and clear of any and all claims, liens, encumbrances, security
interests, restrictions or other charges.
(v) An assignment of Intangible Property duly executed by
Seller with warranty of title in favor of Purchaser assigning and conveying
the Intangible Project free and clear of any and all claims, liens,
encumbrances, security interests, restrictions or other charges.
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(vi) A counterpart original of an assignment and assumption of
the Lease, including, without limitation, all rental deposits, security
deposits and all prepaid rentals ("Assignment and Assumption of Lease")
duly executed and acknowledged by Seller in favor of Purchaser.
(vii) Estoppel certificate ("Estoppel Certificate") addressed
to Purchaser in the form required by the Lease and executed by Tenant.
(viii) An original of the Lease (and copies of material
correspondence relating to the Lease).
(ix) Attornment letter executed by Seller addressed to Tenant
advising Tenant to pay rent to Purchaser or as Purchaser directs.
(x) all keys to the Project.
(xi) ALTA Statement, in duplicate.
(xii) A written reaffirmation that all of the representations
and warranties set forth in this Agreement continue to be true and correct
as of the Closing Date.
(xiii) Personal "GAP" undertaking executed by Seller or an
entity, other than Seller, acceptable to Title Insurer.
(xiv) Such proof of Seller's authority and authorization to
enter into this transaction as may be required by Purchaser or Title
Insurer.
(xv) Such additional documents or instruments, which in the
reasonable opinion of Purchaser and/or Title Insurer, are necessary for the
proper consummation of the transaction contemplated by this Agreement,
provided none of said additional documents or instruments impose any cost
or obligation upon Seller not otherwise specifically imposed upon Seller
pursuant to the terms of this Agreement.
(b) DELIVERIES BY PURCHASER ON OR BEFORE THE CLOSING DATE. Purchaser
shall deliver to Escrowee pursuant to the Escrow Agreement or to Seller, as
applicable, and Purchaser hereby covenants and agrees to deliver to Escrowee or
Seller, as applicable, on or before the Closing Date, the following monies,
instruments and documents, the delivery of each of which shall be a condition
precedent to the delivery of the Deed in accordance with the terms of the Escrow
Agreement:
(i) The balance of the Purchase Price.
(ii) Such proof of Purchaser's authority and authorization to
enter into this transaction as may be reasonably required by Title Insurer.
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(iii) An original counterpart copy of the Assignment and
Assumption of Lease.
(iv) ALTA Statements, in duplicate.
(v) Such additional documents or instruments, which in the
reasonable opinion of Seller and/or Title Insurer, are necessary for the
proper consummation of the transaction contemplated by this Agreement,
provided none of said additional documents or instruments impose any cost
or obligation upon Purchaser not otherwise specifically imposed upon
Purchaser pursuant to the terms of this Agreement.
(c) JOINT DELIVERIES ON OR BEFORE THE CLOSING DATE. The Escrow
Agreement shall provide that the parties shall deliver to Escrowee and the
parties hereby covenant and agree to deliver to Escrowee on or before the
Closing Date the following instruments and documents, all of which shall be
subject to Purchaser's prior review and approval as to form, scope and
substance, the mutual delivery of each of which shall be a condition precedent
to Closing:
(i) Closing Statement, in triplicate.
(ii) State, county and municipal transfer tax declarations.
8. CLOSING DATE. The closing of the transactions contemplated by this
Agreement shall be on a date ("Closing Date" or "Closing") no later than fifteen
(15) business days after this Agreement is executed by Seller and Purchaser or
such earlier or later date as agreed upon by Seller and Purchaser.
9. POSSESSION. Possession of the Project shall be delivered to Purchaser
on the Closing Date, free and clear of all possessory interests other than the
possessory interest of Tenant.
10. BROKERAGE COMMISSION. Seller and Purchaser hereby agree to indemnify
each other, their successors and assigns, and hold each other harmless in the
event any claim, suit or demand for a brokerage commission is brought against
either Seller or Purchaser or their respective successors or assigns based upon
the actions of either Seller or Purchaser relating to the Project (including the
purchase and sale contemplated hereunder). This indemnity shall include all
costs, fees and reasonable expenses incurred by Seller or Purchaser, their
respective successors and assigns, as a result of participation in, or defense
of, any claim, suit or demand.
11. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents and
warrants to Purchaser as follows, which representations and warranties shall be
deemed to have been remade on the Closing Date (the truth and accuracy of which
shall constitute a condition to the disbursement of the Purchase Price to Seller
in accordance with the terms of the Escrow Agreement):
(a) SELLER'S PERFORMANCE. Seller has not done or performed, and
until the conveyance of the Project in accordance with the terms of this
Agreement, it will not do or perform
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any act which would in any way interfere with or adversely affect Seller's
ability to consummate this transaction in accordance with the terms hereof.
(b) VIOLATION OF LAWS. Seller has no actual knowledge and has
received no notices from any city, village, county or other governmental
authority of violations with reference to the Project or any part thereof,
including, without limitation, violations of zoning, building, conservation,
environmental, fire or health codes that have not been heretofore corrected.
(c) AGREEMENTS AFFECTING THE PROJECT. Seller has not entered into
any agreements written or oral with any governmental agency or any party which
would affect or impair the development, use or occupancy of the Project.
(d) LEGAL MATTERS. To Seller's actual knowledge, there is no pending
or threatened condemnation or similar proceeding affecting the Project or any
portion thereof or presently contemplated which will in any manner affect either
Purchaser or the Project or any part thereof. To Seller's actual knowledge,
there is no pending public improvement in, about or outside the Project which
will affect access to the Project.
(e) POWER. This Agreement and all agreements, instruments and
documents herein provided to be executed by Seller are duly authorized, executed
and delivered by and binding upon Seller in accordance with their terms. Seller
has the legal power, right and authority to enter into this Agreement and
consummate the transactions contemplated hereby.
(f) REQUISITE ACTION. All requisite action (corporate, trust,
partnership or otherwise) has been taken or obtained by Seller in connection
with the entering into this Agreement and the consummation of the transactions
contemplated hereby, or shall have been taken prior to the Closing Date.
(g) DEFAULT. Seller is not in default in respect of any of its
obligations or liabilities pertaining to the Project, nor is there any state of
facts or circumstances which, after notice or lapse of time, or both, would
constitute such a default.
(h) MECHANICS' LIENS. There are no claims for mechanics' liens or
any unpaid amounts for labor or materials which could give rise to mechanics'
liens against the Project which have not been bonded over by Seller.
(i) DOCUMENTS OF RECORD. Seller has no notice or knowledge of any
default with respect to any obligations of Seller under any easements, deeds, or
other documents of record.
(j) POSSESSING AGREEMENTS. Seller has not entered into any leases,
tenancies or occupancy agreements pertaining to the Project other than the Lease
or any other lease, tenancy or occupancy agreement approved by Purchaser.
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(k) UTILITIES. All utility lines are or will be available, at
Seller's sole cost and expense, at the perimeter of the Project and are located
in a public right-of-way or in dedicated easements servicing the Project and are
of a capacity and size to service the Building.
(l) FLOOD PLAIN. To Seller's actual knowledge, the Project or any
portion thereof is not located within a flood plain or "floodway" as defined in
Ill. Rev. Stat. ch. 19, 11659.
(m) WETLANDS. To Seller's actual knowledge, the Project or any
portion thereof does not constitute a wetland pursuant to the applicable
provisions of the Clean Water Act, 33 U.S.C. Section 1251 et seq., or the
regulations thereto.
(n) RECAPTURE AGREEMENTS. To Seller's actual knowledge, there are no
obligations in connection with the Project or any so called "recapture
agreement" involving refund for sewer extension, oversizing utility lines,
lighting or like expense or charge for work or services done upon or relating to
the Project which will bind Purchaser or the Project from and after the Closing
Date.
(o) ROADWORK. To Seller's actual knowledge, there is no agreement or
undertaking or bond with any governmental agency respecting construction of any
acceleration or deceleration lane, road, access or street lightings.
(p) DONATIONS. To Seller's actual knowledge, there are no donations
or payments to or for schools, parks, fire departments or any other public
entity or facilities which are required to be made by an owner of the Project.
(q) PRORATIONS. The information to be furnished by Seller on which
the computation of prorations is based shall be true, correct and complete in
all respects.
(r) CONSTRUCTION. The Building shall be constructed in strict
accordance with the Plans (as hereinafter defined) and all applicable laws and
ordinances relating thereto. The Plans shall be completed in strict accordance
with all applicable laws and ordinances applicable to the Work (as hereinafter
defined).
(s) DOCUMENTS AND INFORMATION. All documents and information
provided by Seller to Purchaser in connection herewith are complete, accurate,
true and correct and, to Seller's best knowledge, no information has been
omitted therefrom.
All representations and warranties contained in this Paragraph 11 or
elsewhere in this Agreement shall be deemed remade as of the Closing Date. All
such warranties and representations shall survive Closing for a period of one
(1) year except for the warranties and representations contained in
subparagraphs 11(e), 11(f) and 12(b) which shall survive the Closing without
limitation. This Agreement shall not be canceled or merged on the Closing.
Each and every representation and warranty of Seller contained in this Agreement
shall be deemed to have been relied upon by Purchaser, notwithstanding any
investigation Purchaser may have made with
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respect thereto, or any information developed by or made available to Purchaser
prior to the Closing and consummation of this transaction.
12. ENVIRONMENTAL MATTERS.
(a) ENVIRONMENTAL DEFINITIONS. The term "Hazardous Materials" shall
mean any substance, material, waste, gas or particulate matter which is
regulated by any local governmental authority, the State of Illinois, or the
United States Government, including, but not limited to, any material or
substance which is (i) defined as a "hazardous waste," "hazardous material,"
"hazardous substance," "extremely hazardous waste," or "restricted hazardous
waste" under any provision of Illinois law, (ii) petroleum, (iii) asbestos, (iv)
polychlorinated biphenyl, (v) radioactive material, (vi) designated as a
"hazardous substance" pursuant to Section 311 of the Clean Water Act, 33 U.S.C.
Section 1251 ET SEQ., (33 U.S.C. Section 1317), (vii) defined as a "hazardous
waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act,
42 U.S.C. Section 6901 ET SEQ. (42 U.S.C. Section 6903), or (viii) defined as a
"hazardous substance" pursuant to Section 101 of the Comprehensive Environmental
Response, Compensation, and Liability Act, 42 U.S.C. Section 9601 ET SEQ. (42
U.S.C. Section 9601). The term "Environmental Laws" shall mean all statutes
specifically described in the foregoing sentence and all federal, state and
local environmental, health and safety statutes, ordinances, codes, rules,
regulations, orders and decrees regulating, relating to or imposing liability or
standards concerning or in connection with Hazardous Materials.
(b) ENVIRONMENTAL REPRESENTATIONS AND WARRANTIES. Seller represents
and warrants that as of the date hereof and as of the Closing Date: (i) no
notice, demand, claim or other communication has been given to or served on
Seller, from any entity, governmental body or individual claiming any violation
of any Environmental Law or demanding payment, contribution, indemnification,
remedial action, removal action or any other action or inaction with respect to
any actual or alleged environmental damage or injury to persons, property or
natural resources (any of the foregoing, whether now existing or hereafter
brought, is herein called a "Claim"); (ii) no underground storage tanks are
currently located on the Project as the result of the act or omission of Seller;
(iii) the soil, surface water and ground water of, under, or on the Project are
free from any Hazardous Material (as hereinafter defined) as a result of the act
or omission of Seller; (iv) Seller shall not permit or acquiesce in the use for
or in connection with the manufacture, refinement, treatment, storage,
generation, transport or hauling of any Hazardous Material in excess of levels
permitted by applicable Environmental Laws or the disposal of any such material;
(v) no Hazardous Material has been discharged, dispersed, released, disposed of,
or allowed to escape on, under or in the Project as a result of the act or
omission of Seller; (vi) no asbestos or asbestos-containing materials have been
installed, used, incorporated into or disposed of on the Project as a result of
the act or omission of Seller; and (vii) no polychlorinated biphenyls ("PCBs")
are or ever have been located on, in, or used in connection with the Project as
a result of the act or omission of Seller. If any such representation is in any
manner inaccurate or any such warranty is in any matter breached (collectively,
a "Breach"), and if such Breach gives rise to or results in liability
(including, but not limited to, a response action, remedial action or removal
action) under any Environmental Laws or any existing common law theory based on
nuisance or strict liability, or causes a significant effect on public health,
Seller shall promptly take any and all remedial and removal action as required
by
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law to clean up the Project, mitigate exposure to liability arising from, and
keep the Project free of any lien imposed pursuant to, any Environmental Laws as
a result of such Breach.
(c) ENVIRONMENTAL INDEMNITY. Additionally, but not in lieu of
Seller's affirmative undertakings set forth in subparagraph 12(b) above, Seller
agrees to indemnify, defend and hold harmless Purchaser from and against any and
all debts, liens, claims, causes of action, administrative orders and notices,
costs (including, without limitation, response and/or remedial costs), personal
injuries, losses (including loss of value of the Project), damages, liabilities,
demands, interest, fines, penalties and expenses, including reasonable
attorneys' fees and expenses, consultants' fees and expenses, court costs and
all other out-of-pocket expenses, suffered or incurred by Purchaser as a result
of any Breach.
13. PRORATIONS.
(a) REAL ESTATE TAXES. Seller agrees to pay general real estate
taxes due and payable on or before the Closing Date, and the parties shall
prorate general real estate taxes not yet due and payable as of the Closing Date
on the basis of the most recently ascertainable assessed valuation, tax rate and
multiplier for the Project and shall reprorate such tax proration within thirty
(30) days of either party's receipt of the actual tax bills therefor.
(b) RENT. All payments required to be made by any tenant under any
lease of all or a portion of the Project, including, but not limited to, base
rent and tax or insurance escrow payments, if any, received by Seller and
attributable to periods subsequent to the Closing Date, shall be credited to
Purchaser as of the Closing Date.
(c) OPERATING EXPENSES. All operating expenses on the Project
required to be paid by Seller under any lease ("Operating Expenses") which have
not in fact been paid by Seller as of the Closing Date shall be credited to
Purchaser at Closing on an accrual basis. It is agreed between the parties
Seller is responsible for the payment of all Operating Expenses accruing prior
to the Closing Date and Purchaser is responsible for the payment of all
Operating Expenses accruing after the Closing Date.
(d) SECURITY DEPOSIT. Purchaser shall be credited with any security
deposit or pre-paid rental paid to Seller by any tenant under any lease of all
or a portion of the Project.
(e) OTHER CUSTOMARY PRORATIONS. Other items which are customarily
prorated in a purchase and sale of the type contemplated hereunder shall be
prorated as of the Closing Date.
(f) ADJUSTMENTS. In the event any prorations, apportionments or
computations made under this paragraph 13 shall prove to be incorrect for any
reason, then either party shall be entitled to an adjustment to correct the
same, provided that it makes written demand on the one from whom it is entitled
to such adjustment within two (2) years after Closing.
B-10
<PAGE>
14. DEFAULT AND REMEDIES.
(a) PURCHASER'S DEFAULT. If Purchaser fails to perform in accordance
with the terms of this Agreement as Seller's sole and exclusive remedy for such
default, Seller shall be entitled to (i) assert the right of specific
performance, or (ii) assert an action at law against Seller for monetary
damages.
(b) SELLER'S DEFAULT. If Seller (i) fails to perform in accordance
with the terms of this Agreement or (ii) breaches any of the covenants,
conditions, agreements, representations or warranties of this Agreement, or
(iii) any information contained herein or in the exhibits or in any documents or
information submitted hereunder for Purchaser's review is false, inaccurate or
misleading in any respect, then, in any such event, Purchaser shall retain and
be entitled to exercise all rights and remedies available to Purchaser at law or
in equity.
15. CASUALTY OR CONDEMNATION. In the event of any casualty, or
condemnation of the Project by any governmental authority, or in the event any
notice of such condemnation is received by Seller and in the event that Tenant
may terminate the Lease, Seller shall so advise Purchaser within three (3) days
of such event and Purchaser may elect, by written notice to Seller, to terminate
this Agreement in which event this Agreement shall be of no further force and
effect. If Purchaser does not so elect, then this transaction shall close as
scheduled, and on the Closing Date, Purchaser shall receive a credit equal to
the cost of restoring the Property.
16. ASSIGNMENT AND DESIGNATION OF DESIGNEE. The parties hereto agree
Purchaser shall have the right, prior to the Closing Date and without the
consent of Seller, to assign this Agreement or to designate a designee(s).
Seller shall not assign this Agreement without the prior written consent of
Purchaser.
17. SECTION 1445 OF THE INTERNAL REVENUE CODE. At Closing, Seller shall
complete and execute a Certifications of Non-Foreign Status. In the event
Seller does not do so or if Purchaser receives notice such certifications are
false, then Purchaser may elect either (a) to consummate the transactions
contemplated herein, in which event Purchaser shall, pursuant to said Section
1445, withhold ten (10%) percent of the Purchase Price at Closing; provided,
however, in the event Seller shall, prior to the Closing Date, procure from the
Internal Revenue Service a withholding certificate specifying no withholding is
required, or a reduced withholding is required, Purchaser shall withhold at
Closing only the amount specified in said withholding certificate; or (b) to
terminate this Agreement, in which event this Agreement shall be null and void
and the parties shall have no further liability to each other.
18. NOTICES. All notices or other communications required or permitted
hereunder shall be in writing, and shall be personally delivered or sent by
facsimile telecommunication, by overnight air express service or by registered
or certified mail, postage prepaid, return receipt requested, addressed to the
parties hereto at their respective addresses set forth below. Such notice or
other communication shall be deemed given (a) upon receipt or upon refusal to
accept delivery if delivered by personal delivery or by facsimile
telecommunication, (b) one (1) business day after
B-11
<PAGE>
tendering to an overnight air express service, or (c) three (3) business days
after mailing if by registered or certified mail.
To Seller:
CenterPoint Development Corporation
1808 Swift Road
Oak Brook, Illinois 60523
Attention: Paul S. Fisher
Facsimile No.: 630-_______________
With a copy to: Ungaretti & Harris
3500 Three First National Plaza
Chicago, Illinois 60602
Attention: Richard A. Ungaretti, Esq.
Facsimile No.: 312-977-4405
To Purchaser: CenterPoint Properties Trust
1808 Swift Road
Oak Brook, Illinois 60523
Attention: Paul S. Fisher
Facsimile No.: 630-_______________
With a copy to: Ungaretti & Harris
3500 Three First National Plaza
Chicago, Illinois 60602
Attention: Richard A. Ungaretti, Esq.
Facsimile No.: 312-977-4405
Notice of change of address shall be given by written notice in the manner
detailed in this Section.
19. PROVISIONS REGARDING CONSTRUCTION.
(a) SUBSTANTIAL COMPLETION. For purposes of this Agreement,
"Substantial Completion" of the Work shall be deemed to have occurred upon the
date the last of the following provisions have been complied with and satisfied
by Seller (unless waived by Purchaser in its sole discretion):
(i) Seller shall have furnished to Purchaser and Title
Insurer copies of all final waivers or lien and final sworn statements from
General Contractor, all subcontractors and materialmen;
(ii) Substantial Completion as defined in the Lease has
occurred;
(iii) Seller shall have delivered to Purchaser a certificate
from General Contractor dated within fifteen (15) days of the Closing Date
certifying that no notices of
B-12
<PAGE>
violations of laws or ordinances arising from the Work were served upon
General Contractor during the performance of the Work and General
Contractor has no knowledge that the Project is in violation of any
applicable laws or ordinances;
(iv) Seller shall have furnished to Purchaser an "as built"
set of Plans, showing all paving, driveways, fences and exterior
improvements and all original guaranties and warranties from the General
Contractor and all subcontractors and material suppliers including, but not
limited to, a ____________ year roof warranty;
(v) Seller shall have caused Architect to furnish to
Purchaser a certificate stating that (a) the Work is sufficiently complete
in accordance with the Plans so that Tenant can occupy the Building for the
use intended under the Lease, (b) the Building complies with all applicable
laws and ordinances and (c) such other information reasonably requested by
Purchaser ("Architect's Certificate"); and
(vi) Developer shall have furnished to CNT a final certificate
of occupancy for the Project or, if available and if sufficient to permit
the tenant, if any, for the Project to occupy and use the Project as
contemplated by the Lease for such Project, a temporary certificate of
occupancy.
(b) FINAL COMPLETION. At such time as Purchaser has received the
Architect's Certificate, Purchaser shall have access to the Building to inspect
the same and to prepare with Seller and Tenant a list of "punchlist" items or
other incomplete or defective items (collectively, "Remaining Work"). As a
condition to Closing as aforesaid, Seller shall either (i) promptly complete all
Remaining Work and shall provide to Purchaser evidence that all Remaining Work
has been completed by Seller and accepted by Tenant; or (ii) allow Purchaser to
withhold a portion of the Purchase Price in an amount equal to 150% of
Purchaser's reasonable estimate of the cost of completing the Remaining Work
until such time as the Remaining Work is complete; provided, however, the cost
of completing the Remaining Work shall not exceed $_______________ plus the cost
of other work such as landscaping, exterior painting and paving to the extent
the same cannot be completed due to weather conditions.
(c) SELLER'S RELEASE, INDEMNITY AND WARRANTY.
(i) RELEASE. Seller hereby releases Purchaser and its
affiliates, directors, officers, shareholders, employees and agents (the
"Released Parties") from any and all claims or causes of action whatsoever
which Seller or General Contractor might otherwise possess resulting in or
from or in any way connection with any loss covered or which should have
been covered by insurance, including the deductible portion thereof,
maintained and/or required to be maintained by Seller or General
Contractor, as the case may be, in accordance with this Agreement.
(ii) INDEMNITY. To the fullest extent permitted by law,
Seller hereby indemnifies, defends and holds harmless Purchaser and
Purchaser's directors, officers, shareholders, employees and agents (the
"Indemnified Parties") from and against any and
B-13
<PAGE>
all loss, cost, expense, damage, injury, liability, claim, demand, penalty
or cause of action (including attorneys' fees), directly or indirectly
arising out of, resulting from or related to (in whole or in part) (1) the
Work, or (2) any loss, cost, expense, damage, injury, claim, demand,
penalty or cause of action that is attributable to bodily injury, sickness,
disease or death, or to injury to or destruction of tangible property
(other than the Work itself), including the loss of use resulting
therefrom, and caused in whole or in part by any negligent act or omission
of the General Contractor, any subcontractor, anyone directly or indirectly
employed by any of them, or anyone for whose acts any of them may be
liable.
(iii) WARRANTY. Seller hereby warrants and guarantees that the
Work shall be (i) of best quality, containing all new materials, (ii) free
of defects and fit for its intended use for a period of one (1) year after
the later of (y) the date of substantial completion under the contract with
the General Contractor dated __________________ or (z) ____________________
and (iii) completed strictly in accordance with the Plans. In the event
that any work is performed to correct, repair or remedy any portion of the
Work pursuant to any guarantee, the guarantee periods specified above or
elsewhere herein or in any other agreement applicable to the Work shall
begin anew from the date of Tenant's and/or Purchaser's acceptance of such
work.
The foregoing remedies shall not deprive Purchaser of any
action, right or remedy otherwise available to it for breach of any of the
provisions of this Agreement. The periods referred to above or such longer
time as may be specified elsewhere in the Agreement shall not be construed
as a limitation on the time in which Purchaser may pursue such other
action, right or remedy.
(d) INSPECTIONS. From time to time, Seller will cooperate (and cause
General Contractor to cooperate) with Purchaser to arrange for inspections of
the Work in progress by Purchaser or its designated agents.
20. MISCELLANEOUS.
(a) PARTIAL INVALIDITY. If any term or provision of this Agreement
or the application thereof to any person or circumstances shall, to any extent,
be invalid or unenforceable, the remainder of this Agreement, or the application
of such term or provision to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected thereby, and
each such term and provision of this Agreement shall be valid and be enforced to
the fullest extent permitted by law.
(b) WAIVERS. No waiver of any breach or any covenant or provision
herein contained shall be deemed a waiver of any preceding or succeeding breach
thereof, or of any other covenant or provision herein contained. No extension
of time for performance of any obligation or act shall be deemed an extension of
the time for performance of any other obligation or act.
B-14
<PAGE>
(c) SURVIVAL. The covenants, agreements, representations and
warranties made herein shall survive the Closing and shall extend to the
respective successors, heirs and assigns of Seller and Purchaser, subject to any
limitations expressly set forth herein.
(d) PROFESSIONAL FEES. In the event of the bringing of any action or
suit by a party hereto against another party hereunder by reason of any breach
of any of the covenants, agreements or provisions on the part of the other party
rising out of this Agreement, the prevailing party shall be entitled to have and
recover of and from the other party all costs and expenses of the action or
suit, including, without limitation, actual attorneys' fees, accounting and
engineering fees, and any other professional fees resulting therefrom.
(e) ENTIRE AGREEMENT. All Exhibits attached to this Agreement are
hereby incorporated herein by reference. This Agreement (including all Exhibits
attached hereto) contains the entire Agreement between the parties with respect
to the subject matter hereof and supersedes all prior understandings, if any,
with respect thereto. This Agreement may not be modified, changed, supplemented
or terminated, nor may any obligations hereunder be waived, except by written
instrument signed by the party to be charged or by its agent duly authorized in
writing or as otherwise expressly permitted herein. Other than as expressly set
forth in this Agreement, the parties do not intend to confer any benefit
hereunder on any person, firm or corporation other than the parties hereto.
(f) TIME OF ESSENCE. Seller and Purchaser hereby acknowledge and
agree time is strictly of the essence with respect to each and every term,
condition, obligation and provision hereof.
(g) GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Illinois.
(h) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and each of such counterparts shall, for all purposes, be deemed an
original and all such counterparts shall together constitute one and the same
agreement.
(i) CAPTIONS. The captions in this Agreement are inserted only as a
matter of convenience and for reference and in no way define, limit or describe
the scope of this Agreement or the scope or content of any of its provisions.
(j) TERMS. The use of any pronoun in this Agreement shall include
the singular, plural, masculine, feminine and neuter, the use of the singular or
plural form shall include the plural or singular form and the use of any gender
shall include all genders, as the context may require.
(k) BUSINESS DAYS. If the final day of any period or any date of
performance under this Agreement falls on a Saturday, Sunday or legal holiday,
then the final day of the period or the date of performance shall be extended to
the next day which is not a Saturday, Sunday or legal holiday.
B-15
<PAGE>
(l) CONSTRUCTION. The parties acknowledge that each party and its
counsel have received and approved this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
any amendments or Exhibits hereto.
(m) ASSIGNMENT. Purchaser shall have the right to assign any and all
of its right, title and interest hereunder without the consent of Seller.
(n) EXISTENCE OF LEASE. In the event the terms "Lease" and "Tenant"
are not defined in Paragraph C of the Recitals to this Agreement, the
requirements and provisions of Sections 7, 15 and 19 of this Agreement insofar
as such requirements and provisions relate to a Lease or Tenant shall be deemed
waived by Purchaser and of no force or effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
SELLER: PURCHASER:
CenterPoint Development Corporation, CenterPoint Properties Trust,
an Illinois corporation a Maryland real estate investment
trust
By: By:
-------------------------- ----------------------------
Name: Name:
------------------- ---------------------
By:
----------------------------
Name:
---------------------
B-16
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION
B-A-1
<PAGE>
EXHIBIT B
PERMITTED EXCEPTIONS
1. TAXES FOR THE CURRENT YEAR WHICH ARE A LIEN ALTHOUGH NOT YET DUE AND
PAYABLE.
2. ACTS OF PURCHASER OR PARTIES ACTING BY, THROUGH OR UNDER PURCHASER.
3. LIST OTHERS:
B-B-1
<PAGE>
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Agreement") is made and entered
into this 30th day of July, 1998 by and between CENTERPOINT REALTY SERVICES
CORPORATION, an Illinois corporation ("Assignor"), and CENTERPOINT DEVELOPMENT
CORPORATION, an Illinois corporation ("Assignee"), with reference to the
following facts:
WHEREAS, Assignor desires to assign to Assignee the real property described
on Exhibit A hereto (the "Real Property"), subject to certain indebtedness of
Assignor to CenterPoint Properties Trust with respect to such Real Property in
the aggregate principal amount of $2,000,000.00, bearing interest at 8.125% and
payable on demand (the "Outstanding Debt").
NOW, THEREFORE, in consideration of $10, the mutual covenants and
obligations set forth herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. ASSIGNMENT OF REAL PROPERTY. Assignor does hereby assign, transfer
and convey to the Assignee all of Assignor's right, title and interest in and to
the Real Property (the "Assignment").
2. ASSUMPTION OF OUTSTANDING DEBT. Assignee does hereby assume the
Outstanding Debt, and Assignor shall have no further obligations with respect to
the Outstanding Debt.
3. CONSIDERATION. In consideration of the Assignment, the Assignor shall
be deemed to have made an equity contribution to Assignee in the amount of
$4,359,000.00 on the date hereof.
4. FURTHER ASSURANCES. Each of the parties shall execute such documents
and other instruments and perform such further acts as may be reasonably
required or desirable to effect the provisions hereof and the transactions
contemplated hereby.
5. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon, and
shall inure to the benefit of, the parties hereto, and their respective
successors and assigns.
6. EFFECTIVE DATE. The effective date of the Assignment shall be the
date hereof.
7. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois.
<PAGE>
8. SUBORDINATION. Pursuant to the terms of an Intercreditor Agreement
dated as of July 31, 1998 among the CenterPoint Properties Trust, the Assignor,
the Assignee, LaSalle National Bank ("LaSalle") and U.S. Bank National
Association ("USBank"), payment of all amounts due hereunder is subordinated to
the prior payment of the Assignee's liabilities to LaSalle and USBank.
Reference is hereby made to the Intercreditor Agreement for a statement of the
terms and provisions thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written through their duly authorized
representatives hereinafter designated.
CENTERPOINT REALTY SERVICES
CORPORATION
By:
---------------------------
Its:
--------------------------
CENTERPOINT DEVELOPMENT
CORPORATION
By:
---------------------------
Its:
--------------------------
ACKNOWLEDGMENT AND CONSENT:
CenterPoint Properties Trust hereby acknowledges and consents to the
assumption of the Outstanding Debt by CenterPoint Development Corporation.
CENTERPOINT PROPERTIES TRUST
By:
---------------------------
Its:
--------------------------
Date:
-------------------------
-2-
<PAGE>
EXHIBIT A
DESCRIPTION OF REAL PROPERTY
1. Address: Route 88 and Shore Road (vacant), Naperville, Illinois
PIN: 07-04-403-020 and 07-04-403-021
Assumed Debt: $102,000.00
Value: $334,000.00
2. Address: Route 88 and Diehl Road (vacant), Naperville, Illinois
PIN: 07-04-303-001; 07-04-400-006; 07-04-401-008;
07-04-302-002; 07-04-401-007
Assumed Debt: $858,000.00
Value: $2,814,000.00
3. Address: 71st St. and Adams St., Willowbrook, Illinois
PIN: 09-23-407-051
Assumed Debt: $246,000.00
Value: $806,000.00
4. Address: 71st St. and Madison St., Willowbrook, Illinois
PIN: 09-23-407-052; 09-23-407-054; 09-23-407-057
Assumed Debt: $794,000.00
Value: $2,605,000.00
<PAGE>
LOAN AGREEMENT
THIS LOAN AGREEMENT ("Agreement") is entered into as of the 31st day of
July, 1998 by and between CENTERPOINT PROPERTIES TRUST, a Maryland real estate
investment trust ("Lender"), and CENTERPOINT DEVELOPMENT CORPORATION, an
Illinois corporation ("Borrower"), with respect to the following:
1. INCORPORATION AND DEFINITIONS
1.1 INCORPORATION AND DEFINITIONS. All exhibits attached hereto and
incorporated herein are hereby made a part of this Agreement. The defined terms
used herein shall have the meanings set forth on Exhibit "A" attached hereto.
2. THE LOAN
2.1 THE LOAN. Subject to the terms and conditions of this Agreement, from
time to time between the date hereof and the Maturity Date, Lender agrees to
lend to Borrower an amount not to exceed the Loan Amount. Subject to the terms
and conditions of this Agreement, Borrower may borrow, repay and reborrow up to
the Loan Amount at any time prior to the Maturity Date. The Loan shall be
evidenced by the Note which is by reference made a part hereof. The Note shall
be executed by Borrower and shall provide for the payment of all unpaid
principal evidenced thereby and all interest thereon to be made on or before the
Maturity Date. If any sum of principal or interest is not paid when due
hereunder or under the Note, such past due sum shall bear interest, to the
extent permitted by applicable law, at the Default Rate (as defined in the
Note).
2.2 PURPOSE OF ADVANCES. The Borrower agrees to use the Advances to fund
the costs of construction of projects for which Borrower has obtained financing
under the Construction Loan Agreement.
2.3 LENDER'S RIGHT TO CEASE DISBURSEMENT. Notwithstanding the foregoing,
Lender may, in its sole discretion, cease to make disbursements of the Loan upon
the occurrence of an Event of Default or an event which, with the lapse of time
or the giving of notice or both, would constitute an Event of Default.
3. CONDITIONS PRECEDENT
The obligation of Lender to make the initial Advance is subject to the
condition that, on the Closing Date, there shall have been delivered to Lender,
in form and substance reasonably satisfactory to Lender, the following:.
3.1 AUTHORITY DOCUMENTS. A copy of a corporate resolution of Borrower
authorizing this transaction.
<PAGE>
3.2 LOAN DOCUMENTS. The Loan Documents shall have been fully executed and
delivered to Lender.
3.3 CONSTRUCTION LOAN AGREEMENT. The Bank Lenders under the Construction
Loan Agreement shall have made the initial advance of funds under the facility.
4. COVENANTS
Borrower covenants and agrees that until the full and final payment of the
Loan and any other indebtedness incurred hereunder, it will, unless Lender
waives in writing compliance thereto, comply as to the following:
4.1 AFFIRMATIVE COVENANTS. Borrower shall comply with the covenants set
forth in the Construction Loan Agreement.
4.2 REIMBURSE LENDER. Whether or not the Loan is disbursed, pay or
reimburse Lender for all governmental fees, charges, taxes or penalties imposed
on this Agreement or on any agreements or financing statements delivered
hereunder and any taxes imposed on or assessed against Lender arising out of, by
reason of, or relating to this Agreement (except state franchise taxes and state
and federal income taxes) and for any out-of-pocket expenses reasonably incurred
by Lender in connection herewith.
5. EVENTS OF DEFAULT AND REMEDIES
Upon the occurrence of any of the following events ("Events of Default"),
at the option of Lender, all sums of interest and principal remaining on the
Loan and all other sums owing hereunder shall become immediately due and
payable, without notice of default, presentment or demand for payment, protest
or notice of nonpayment or dishonor, or other notices or demands of any kind or
character.
5.1 FAILURE TO PAY. The Borrower fails to pay any interest due under the
Note within five (5) days from the date due or principal due under the Note.
5.2 INSOLVENCY. Borrower admits in writing its inability to pay its debts
generally as they become due, or makes an assignment for the benefit of
creditors or files any petition or action for relief under any bankruptcy,
reorganization, insolvency or moratorium law, or any other law or laws for the
relief of, or relating to, debtors.
5.3 BANKRUPTCY. An involuntary petition is filed under any bankruptcy or
insolvency statute against Borrower, or a custodian, receiver or trustee has
been appointed to take possession of any real property or other assets of
Borrower or any entity or individual comprising Borrower, unless such petition
or appointment is or has been set aside or withdrawn or ceases or has ceased to
be in effect within sixty (60) days from the date of said filing or appointment.
<PAGE>
5.4 DEFAULT UNDER CONSTRUCTION LOAN AGREEMENT. Any default occurs under
the Construction Loan Agreement or any other agreement executed in connection
therewith which is not cured within the applicable grace period, if any.
5.5 BREACH GENERALLY. Borrower breaches, or defaults under, any term,
obligation, condition or provision contained in this Agreement not specifically
referred to in this Article 5, if such breach or default shall continue or has
continued for thirty (30) days after Borrower's receipt from Lender of a written
notice describing said default or such additional time as may be necessary to
cure said default not to exceed sixty (60) additional days, provided: (i)
Borrower has commenced cure of said default within said thirty (30) day period,
(ii) such default is not susceptible to cure within said thirty (30) day period
and (iii) Borrower is diligently pursuing said cure to completion.
6. MISCELLANEOUS
6.1 NOTICES. Any communications between the parties hereto or notices
provided herein to be given may be given by personal or overnight delivery or by
certified or registered mail, postage prepaid, return receipt requested, at the
address set forth opposite each party's name on the signature pages hereto, or
to such other addresses as any party may in writing hereafter indicate. Such
notice shall be effective upon receipt or refusal to accept receipt.
6.2 DEFENSE OF ACTIONS BY LENDER. Lender shall have the right to
commence, appear in, or defend any action or proceeding purporting to affect the
rights or duties of the parties hereto or the disbursement of any Loan proceeds
and in connection therewith pay necessary expenses, employ counsel and pay
reasonable counsel's fees.
6.3 WAIVER BY LENDER. No delay or omission to exercise any right, power
or remedy accruing to Lender upon any breach or default of Borrower under the
Loan Documents shall impair any such right, power or remedy of Lender, nor shall
it be construed to be a waiver of any such breach or default, or an acquiescence
therein, or of or in any similar breach or default thereafter occurring; nor
shall any waiver of any single breach or default be deemed a waiver of any other
breach or default theretofore or thereafter occurring. Any waiver, permit,
consent or approval of any kind or character by Lender of any breach or default
under the Loan Documents, or any waiver by Lender of any provision or condition
of the Loan Documents, must be written and shall be effective only to the extent
specified. All remedies, either under the Loan Documents or by law or otherwise
afforded to Lender, shall be cumulative and not alternate.
6.4 TIME OF ESSENCE. Time is the essence of this Agreement.
6.5 SUBORDINATION. Pursuant to the terms of an Intercreditor Agreement
dated as of July 31, 1998 among the Lender, Borrower and the Bank Lenders,
payment of all amounts due hereunder is subordinated to the prior payment of
Borrower's liabilities to the
3
<PAGE>
Bank Lenders. Reference is hereby made to the Intercreditor Agreement for a
statement of the terms and provisions thereof.
6.5 GOVERNING LAW. This Agreement, the Note and all other documents
required hereunder, shall be governed by, and construed under, the laws of the
State of Illinois.
6.6 HEADINGS. Paragraph headings are for reference only, and shall not
affect the interpretation or meaning of any provision of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
their duly authorized officers as of the day and year first above written.
BORROWER: CENTERPOINT DEVELOPMENT
CORPORATION, an Illinois corporation
By:
---------------------------------
Its:
-----------------------------
Address:
1808 Swift Road
Oak Brook, Illinois 60523-1501
LENDER: CENTERPOINT PROPERTIES
TRUST, a real estate investment trust
By:
---------------------------------
Its:
-----------------------------
Address:
1808 Swift Road
Oak Brook, Illinois 60523-1501
4
<PAGE>
EXHIBIT "A"
DEFINITIONS
Unless the context otherwise requires, the following terms when capitalized
and used in the Loan Documents have the meanings respectively ascribed to them:
"Advance" means a borrowing under the Loan.
"Bank Lenders" means LaSalle National Bank, as agent and lender, and U.S.
Bank National Association, as lender, under the Construction Loan Agreement.
"Business Day" means every day on which national banking associations
located in the State of Illinois are allowed to be open for general lending
business.
"Closing Date" means the date on which the Loan Documents have been
executed and all Conditions Precedent required by Article 3 hereof have been
satisfied.
"Construction Loan Agreement" means the Construction Loan Facility
Agreement dated as of July 31, 1998 among CenterPoint Development Corporation,
as borrower, and the Bank Lenders.
"Event of Default" means any of the events constituting an Event of Default
under Article 5 hereof.
"Loan" means the loan described and provided for in Article 2 hereof.
"Loan Amount" means the sum of up to One Million and no/100 Dollars
($1,000,000.00).
"Loan Documents" means this Agreement, the Note and any other documents
evidencing or securing the Loan.
"Maturity Date" means August 1, 2001.
"Note" means the Revolving Promissory Note evidencing the Loan, in the form
attached hereto as Exhibit B.
<PAGE>
LOAN AGREEMENT
BY AND BETWEEN
CENTERPOINT PROPERTIES TRUST,
A MARYLAND REAL ESTATE INVESTMENT TRUST,
LENDER
AND
CENTERPOINT DEVELOPMENT CORPORATION,
AN ILLINOIS CORPORATION
BORROWER
JULY 31, 1998
<PAGE>
REVOLVING PROMISSORY NOTE
$1,000,000.00 Oak Brook, Illinois
July 31, 1998
FOR VALUE RECEIVED, CENTERPOINT DEVELOPMENT CORPORATION, an Illinois
corporation ("Maker"), hereby promises to pay to the order of CENTERPOINT
PROPERTIES TRUST, a Maryland real estate investment trust ("Payee"), at its
office in Oak Brook, Illinois, or at such other place as Payee may from time to
time designate, in the manner hereinafter provided, the principal sum of ONE
MILLION AND NO/100THS DOLLARS ($1,000,000.00), in lawful money of the United
States of America or so much thereof as has been disbursed from time to time,
payable on August 1, 2001 (the "Maturity Date") and to pay interest (computed on
the basis of a 360-day year of twelve 30-day months) on the principal amount
from time to time remaining unpaid hereon at the rate of LIBOR plus 250 basis
points per annum from the date hereof until the Maturity Date, payable on the
Maturity Date. The Maker agrees to pay interest on overdue principal or, to the
extent permitted by law, interest at the rate of LIBOR plus 600 basis points per
annum (the "Default Rate") until paid.
This Note is issued pursuant to a Loan Agreement dated as of July 31, 1998
between the Maker and Payee (the "Loan Agreement"). Capitalized terms used
herein and not otherwise defined have the meanings ascribed to them in the Loan
Agreement.
The Payee shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record, the date and amount of each Advance and
the date and amount of each principal payment hereunder.
This Note may be declared due prior to its expressed maturity date, on the
terms and in the manner and amounts as provided in the Loan Agreement.
Maker, for itself and its successors and assigns, and each co-maker,
endorser or guarantor, if any, of this Note, for their successors and assigns,
hereby forever waives presentment, protest and demand, notice of protest,
demand, dishonor and non-payment of this Note, and all other notices in
connection with the delivery, acceptance, performance, default or enforcement of
the payment of this Note and waives and renounces all rights to the benefits of
any statute of limitations and any moratorium, right of redemption,
appraisement, exemption and homestead law now provided or which may hereby be
provided by any federal or state statute or decisions, including but not limited
to exemptions provided by or allowed under the Bankruptcy Code, against the
enforcement and collection of the obligations evidenced by this Note, and any
and all amendments, substitutions, extensions, renewals, increases, and
modifications hereof. Maker agrees to pay all costs and expenses of collection
and enforcement of this Note when incurred, including appraisal fees and Payee's
attorneys' fees and legal and court costs, including any incurred on appeal
<PAGE>
or in connection with bankruptcy or insolvency, whether or not any lawsuit or
proceeding is ever filed with respect hereto. No extensions of time of the
payment of this Note or any installment hereof or any other modification,
amendment or forbearance made by agreement with any person now or hereafter
liable for the payment of this Note shall operate to release, discharge, modify,
change or affect the liability of any co-maker, endorser, guarantor or any other
person with regard to this Note, either in whole or in part.
No failure on the part of Payee or any holder hereof to exercise any right
or remedy hereunder, whether before or after the occurrence of a default, shall
constitute a waiver thereof, and no waiver of any past default shall constitute
a waiver of any future default or of any other default. No failure to
accelerate the debt evidenced hereby by reason of default hereunder, or
acceptance of a past due installment, or indulgence granted from time to time
shall be construed to be a waiver of the right to insist upon prompt payment
thereafter or to impose the Default Rate retroactively or prospectively, or to
impose late payment charges, or shall be deemed to be a novation of this Note or
as a reinstatement of the debt evidenced hereby or as a waiver of such right of
acceleration or any other right, or be construed so as to preclude the exercise
of any right which Payee or any holder hereof may have, whether by the laws of
the State of Illinois, by agreement or otherwise, and none of the foregoing
shall operate to release, change or affect the liability of Maker or any
co-maker, endorser or guarantor of this Note, and Maker and each co-maker,
endorser and guarantor hereby expressly waive the benefit of any statute or rule
of law or equity which would produce a result contrary to or in conflict with
the foregoing. This Note may not be modified or amended orally, but only by an
agreement in writing signed by the party against whom such agreement is sought
to be enforced.
The parties hereto intend and believe that each provision in this Note
comports with all applicable local, state and federal laws and judicial
decisions. However, if any provisions, provision, or portion of any provision
in this Note is found by a court of competent jurisdiction to be in violation of
any applicable local, state or federal ordinance, statute, law, or
administrative or judicial decision, or public policy, and if such court would
declare such portion, provision or provisions of this Note to be illegal,
invalid, unlawful, void or unenforceable as written, then it is the intent of
all parties hereto that such portion, provision or provisions shall be given
force and effect to the fullest possible extent they are legal, valid and
enforceable, and the remainder of this Note shall be construed as if such
illegal, invalid, unlawful, void or unenforceable portion, provision or
provisions were severable and not contained therein, and the rights, obligations
and interest of Maker and the holder hereof under the remainder of this Note
shall continue in full force and effect.
All terms, conditions and agreements herein are expressly limited so that
in no contingency or event whatsoever, whether by reason of advancement of the
proceeds hereof, acceleration of maturity of the unpaid principal balance
hereof, or otherwise, shall the amount paid or agreed to be paid to the holders
hereof for the use, forbearance or detention of the money to be advanced
hereunder exceed the highest lawful rate permissible under applicable laws. If,
from any circumstances whatsoever, fulfillment of any provision hereof shall
involve transcending the limit of validity prescribed by law which a court of
2
<PAGE>
competent jurisdiction may deem applicable hereto, then ipso facto, the
obligation to be fulfilled shall be reduced to the limit of such validity, and
if under any circumstances the holder hereof shall ever receive as interest an
amount which would exceed the highest lawful rate, such amount which would be
excessive interest shall be applied to reduction of the unpaid principal balance
due hereunder and not to the payment of interest.
This Note shall inure to the benefit of Payee and its successors and
assigns and shall be binding upon the undersigned and its successors and
assigns. As used herein, the term "Payee" shall mean and include the
successors and assigns of the identified payee and the holder or holders of this
Note from time to time.
Maker acknowledges and agrees that (i) this Note and the rights and
obligations of all parties hereunder shall be governed by and construed under
the laws of the State of Illinois; (ii) the obligation evidenced by this Note is
an exempted transaction under the Truth-in-Lending Act, 15 U.S.C. Section 1601,
et seq.; (iii) said obligation constitutes a "business loan" under Illinois law;
and (iv) the proceeds of the loan evidenced by this Note will not be used for
the purchase of registered equity securities.
Pursuant to the terms of an Intercreditor Agreement dated as of July 31,
1998 among the Maker, the Payee, LaSalle National Bank ("LaSalle") and U.S. Bank
National Association ("USBank") and CenterPoint Realty Services Corporation,
payment of all amounts due hereunder is subordinated to the prior payment of the
Maker's liabilities to LaSalle and USBank. Reference is hereby made to the
Intercreditor Agreement for a statement of the terms and provisions thereof.
The obligations of the maker of this Note shall be direct and primary, and
when the context or construction of the terms of this Note so require, all words
used in the singular herein shall be deemed to have been used in the plural and
the masculine shall include the feminine and neuter.
EXECUTED AND DELIVERED at Oak Brook, Illinois as of the 31st day of July,
1998.
CENTERPOINT DEVELOPMENT
CORPORATION, an Illinois corporation
By:
---------------------------------
Its:
-----------------------------
Title:
---------------------------
3
<PAGE>
Schedule of Advances
to
CenterPoint Development Corporation Note
<TABLE>
<CAPTION>
Principal Amount Principal Unpaid
Date of Advance Payments Balance
- ---- ---------- -------- -------
<S> <C> <C> <C>
</TABLE>
<PAGE>
Exhibit 10.58
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (the "Agreement") is dated as of May 15, 1998
between CENTERPOINT PROPERTIES TRUST, a Maryland real estate investment trust
(the "Company"), and MARTIN BARBER (the "Optionee").
The parties agree as follows:
1. GRANT OF OPTION. In recognition of the outstanding service to the Company
performed by the Optionee as a trustee of the Company for the past four
years and in addition to the options granted to Optionee under the 1993
Stock Option Plan, the Company hereby grants to the Optionee an option (the
"Option") to purchase 13,500 shares of the Company's Common Shares of
Beneficial Interest, $.001 par value per share (the "Shares") under the
terms and conditions hereof.
2. TERM. The Option becomes exercisable and terminates in accordance with the
schedule set forth in Section 5 hereof.
3. PRICE. The price of each share purchased by exercise of the Option is
$34.375.
4. PARTIAL EXERCISE. The Option, to the extent exercisable under Section 5
hereof, may be exercised in whole or in part provided that the Option may
not be exercised for less than 100 shares in any single transaction unless
such exercise pertains to the entire number of shares then covered by the
Option.
5. EXERCISE PERIOD.
(a) The Option shall be fully vested at the time of the award.
(b) If it has not been previously terminated pursuant to the terms of this
Agreement, the Option shall terminate at the close of business on the
day before the tenth anniversary of the date of this Agreement.
(c) Notwithstanding the foregoing, the Option shall terminate upon the
dissolution of the Company.
6. METHOD OF EXERCISE. The Option shall be exercised by written notice by
Optionee to the Company specifying the number of Shares that such person
elects to purchase, accompanied by full payment, in cash or current funds,
for such Shares.
7. ISO TREATMENT. It is not intended that the Option shall qualify as an
"incentive stock option" as described in section 422 of the Internal
Revenue Code of 1986, as amended.
8. RIGHTS OF SHAREHOLDER. No person, estate, or other entity will have the
rights of a shareholder with respect to Shares subject to the Options until
a certificate or certificates for these Shares have been delivered to the
person exercising the Option.
<PAGE>
9. RIGHTS OF THE COMPANY. This Agreement does not affect the Company's right
to take any corporate action, including other changes in its right to
recapitalize, reorganize or consolidate, issue bonds, notes or stock,
including preferred stock or options therefor, to dissolve or liquidate, or
to sell or transfer any part of its assets or business.
10. CHANGES IN CAPITALIZATION.
(a) In the event that:
(i) The outstanding Common Shares are exchanged, in connection
with a merger or consolidation of the Company or a sale by the Company of
all or a part of its assets, for a different number or class of shares of
beneficial interest or other securities of the Company or for shares of
stock or other securities of any other corporation;
(ii) A recapitalization, split-up or combination of Common shares
is effected;
(iii) New, different or additional shares or other securities of the
Company or of another corporation are received by the holders of Common
Shares, in respect of their ownership of Common Shares; or
(iv) Any stock dividend is made to the holders of Common Shares;
(b) Then the Board of Trustees of the Company or the Compensation
Committee designated by the Board of Trustees (hereinafter referred to
collectively as the "Committee") shall make the appropriate adjustment to:
(i) The number and class of shares or other securities that may be
issued pursuant to exercise of Options;
(ii) The purchase price to be paid per share under outstanding
Options, and/or
(iii) The number of shares covered by each outstanding Option.
11. TAXES. The Company, if necessary or desirable, may pay or withhold the
amount of any tax attributable to any shares deliverable under this
Agreement, and the Company may defer making delivery until it is
indemnified to its satisfaction for that tax.
12. STOCK LEGENDS. Any certificate issued to evidence shares issued under the
Option shall bear such legends and statements as the Committee deems
advisable to assure compliance with all federal and state laws and
regulations.
13. ASSIGNABILITY. The Option shall not be transferable other than by will or
the laws of descent and distribution. During the Optionee's lifetime, the
Option shall be exercisable only by the Optionee, except as otherwise
provided herein. The Option shall be transferable, on the Optionee's
death, to the Optionee's estate and shall be exercisable, during the
Optionee's lifetime, by the Optionee's guardian or legal representative.
-2-
<PAGE>
14. TRANSFERABILITY.
(a) IN GENERAL. No Common Shares acquired pursuant to the exercise of an
Option may be sold, transferred, pledged, assigned, or otherwise
alienated or hypothecated until six months from the date of exercise
of the Option.
(b) SECURITIES LAWS RESTRICTIONS. The Company may impose such other
restrictions on any shares issued pursuant to the exercise of Options
hereunder as it may deem advisable including, but not limited to,
restrictions intended to achieve compliance with the Securities Act of
1933, as amended, with the requirements of any stock exchange upon
which the Common Shares is then listed, and with any Blue Sky or state
securities laws applicable to such Common Shares. If at any time the
Committee shall determine, in its discretion, that the listing,
registration or qualification of any of the shares to be issued upon
the exercise of the Options on any securities exchange or under any
state or Federal law, or the consent or approval of any governmental
or regulatory body, is necessary or desirable as a condition of or in
connection with the issuance of shares hereunder, then no exercise of
Options may be made unless such listing, registration, qualification,
consent or approval shall have been effected or obtained free of any
conditions not acceptable to the Committee. The Committee may require
the Optionee to make such representations and furnish such information
as it may consider appropriate in connection with the issuance or
delivery of any shares in compliance with applicable law and shall
have the authority to cause the Company at its expense to take any
action related to the this Agreement which may be required in
connection with such listing, registration, qualification, consent or
approval.
(c) REGISTRATION STATEMENT. If a registration statement is not in effect
under the Securities Act of 1933 or any applicable state securities
laws with respect to the Common Shares at the time of exercise of the
Options, the Company may require the Optionee to represent, in
writing, that the shares received are being acquired for investment
and not with a view to distribution and agree that the shares will not
be disposed of except pursuant to an effective registration statement,
unless the Company shall have received an opinion of counsel that such
disposition is exempt from such requirement under the Securities Act
of 1933 and any applicable state securities laws. The Company shall
include on certificates representing shares delivered pursuant to this
Agreement such legends referring to the foregoing representations or
restrictions and any other applicable restrictions on resale as the
Committee, in its discretion, shall deem appropriate.
15. NO RIGHT OF EMPLOYMENT. Nothing in this Agreement shall confer any right
on an Optionee to become an employee of the Company.
16. AMENDMENT OF OPTION. The Company may alter, amend, or terminate the Option
only with the Optionee's consent, except for adjustments expressly provided
by this Agreement.
-3-
<PAGE>
17. CHOICE OF LAW. The validity, interpretation and administration of this
Agreement and of any rules, regulation, determinations or decisions made
thereunder, and the rights of any and all persons having or claiming to
have any interest therein or thereunder, shall be determined exclusively in
accordance with the laws of the State of Illinois. Without limiting the
generality of the foregoing, the period within which any action in
connection with this Agreement must be commenced shall be governed by the
laws of the State of Illinois without regard to the place where the act or
omission complained of took place, the residence or any party to such
action or the place where the action may be brought.
18. MISCELLANEOUS. This Agreement is the final, complete, and exclusive
expression of the understanding between the parties and supersedes any
prior or contemporaneous agreement or representation, oral or written,
between them. Modification of this Agreement or waiver of a condition
herein must be written and signed by the party to be bound. In the event
that any paragraph or provision of this Agreement shall be held to be
illegal or unenforceable, such paragraph or provision shall be severed from
the Agreement and the entire Agreement shall not fail on account thereof,
but shall otherwise remain in full force and effect.
19. NOTICES. All notices and other communications required or permitted under
this Agreement shall be written, and shall be either delivered personally
or sent by registered or certified first-class mail, postage prepaid and
return receipt requested, or by telex or telecopier, addressed as follows:
if to the Company, to the Company's principal office, and if to the
Optionee or his successor, to the address last furnished by such person to
the Company. Each such notice and communication delivered personally shall
be deemed to have been given when delivered. Each such notice and
communication given by mail shall be deemed to have been given when it is
deposited in the United States mail in the manner specified herein, and
each such notice and communication given by telex or telecopier shall be
deemed to have been given when it is so transmitted and the appropriate
answerback is received. A party may change its address for the purpose
hereof by giving notice in accordance with the provisions of this Section
19.
-4-
<PAGE>
IN WITNESS WHEREOF, the Optionee and the Company have executed this
Agreement as of the date first written above.
CENTERPOINT PROPERTIES TRUST
By:
-----------------------------------
John S. Gates, Jr.,
President and Chief Executive Officer
OPTIONEE
------------------------------------------
Martin Barber
-5-
<PAGE>
Exhibit 10.59
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (the "Agreement") is dated as of May 15, 1998
between CENTERPOINT PROPERTIES TRUST, a Maryland real estate investment trust
(the "Company"), and NICHOLAS C. BABSON (the "Optionee").
The parties agree as follows:
1. GRANT OF OPTION. In recognition of the outstanding service to the Company
performed by the Optionee as a trustee of the Company for the past four
years and in addition to the options granted to Optionee under the 1993
Stock Option Plan, the Company hereby grants to the Optionee an option (the
"Option") to purchase 12,000 shares of the Company's Common Shares of
Beneficial Interest, $.001 par value per share (the "Shares") under the
terms and conditions hereof.
2. TERM. The Option becomes exercisable and terminates in accordance with the
schedule set forth in Section 5 hereof.
3. PRICE. The price of each share purchased by exercise of the Option is
$34.375.
4. PARTIAL EXERCISE. The Option, to the extent exercisable under Section 5
hereof, may be exercised in whole or in part provided that the Option may
not be exercised for less than 100 shares in any single transaction unless
such exercise pertains to the entire number of shares then covered by the
Option.
5. EXERCISE PERIOD.
(a) The Option shall be fully vested at the time of the award.
(b) If it has not been previously terminated pursuant to the terms of this
Agreement, the Option shall terminate at the close of business on the
day before the tenth anniversary of the date of this Agreement.
(c) Notwithstanding the foregoing, the Option shall terminate upon the
dissolution of the Company.
6. METHOD OF EXERCISE. The Option shall be exercised by written notice by
Optionee to the Company specifying the number of Shares that such person
elects to purchase, accompanied by full payment, in cash or current funds,
for such Shares.
7. ISO TREATMENT. It is not intended that the Option shall qualify as an
"incentive stock option" as described in section 422 of the Internal
Revenue Code of 1986, as amended.
8. RIGHTS OF SHAREHOLDER. No person, estate, or other entity will have the
rights of a shareholder with respect to Shares subject to the Options until
a certificate or certificates for these Shares have been delivered to the
person exercising the Option.
<PAGE>
9. RIGHTS OF THE COMPANY. This Agreement does not affect the Company's right
to take any corporate action, including other changes in its right to
recapitalize, reorganize or consolidate, issue bonds, notes or stock,
including preferred stock or options therefor, to dissolve or liquidate, or
to sell or transfer any part of its assets or business.
10. CHANGES IN CAPITALIZATION.
(a) In the event that:
(i) The outstanding Common Shares are exchanged, in connection
with a merger or consolidation of the Company or a sale by the Company of
all or a part of its assets, for a different number or class of shares of
beneficial interest or other securities of the Company or for shares of
stock or other securities of any other corporation;
(ii) A recapitalization, split-up or combination of Common shares
is effected;
(iii) New, different or additional shares or other securities of the
Company or of another corporation are received by the holders of Common
Shares, in respect of their ownership of Common Shares; or
(iv) Any stock dividend is made to the holders of Common Shares;
(b) Then the Board of Trustees of the Company or the Compensation
Committee designated by the Board of Trustees (hereinafter referred to
collectively as the "Committee") shall make the appropriate adjustment to:
(i) The number and class of shares or other securities that may be
issued pursuant to exercise of Options;
(ii) The purchase price to be paid per share under outstanding
Options, and/or
(iii) The number of shares covered by each outstanding Option.
11. TAXES. The Company, if necessary or desirable, may pay or withhold the
amount of any tax attributable to any shares deliverable under this
Agreement, and the Company may defer making delivery until it is
indemnified to its satisfaction for that tax.
12. STOCK LEGENDS. Any certificate issued to evidence shares issued under the
Option shall bear such legends and statements as the Committee deems
advisable to assure compliance with all federal and state laws and
regulations.
13. ASSIGNABILITY. The Option shall not be transferable other than by will or
the laws of descent and distribution. During the Optionee's lifetime, the
Option shall be exercisable only by the Optionee, except as otherwise
provided herein. The Option shall be transferable, on the Optionee's
death, to the Optionee's estate and shall be exercisable, during the
Optionee's lifetime, by the Optionee's guardian or legal representative.
-2-
<PAGE>
14. TRANSFERABILITY.
(a) IN GENERAL. No Common Shares acquired pursuant to the exercise of an
Option may be sold, transferred, pledged, assigned, or otherwise
alienated or hypothecated until six months from the date of exercise
of the Option.
(b) SECURITIES LAWS RESTRICTIONS. The Company may impose such other
restrictions on any shares issued pursuant to the exercise of Options
hereunder as it may deem advisable including, but not limited to,
restrictions intended to achieve compliance with the Securities Act of
1933, as amended, with the requirements of any stock exchange upon
which the Common Shares is then listed, and with any Blue Sky or state
securities laws applicable to such Common Shares. If at any time the
Committee shall determine, in its discretion, that the listing,
registration or qualification of any of the shares to be issued upon
the exercise of the Options on any securities exchange or under any
state or Federal law, or the consent or approval of any governmental
or regulatory body, is necessary or desirable as a condition of or in
connection with the issuance of shares hereunder, then no exercise of
Options may be made unless such listing, registration, qualification,
consent or approval shall have been effected or obtained free of any
conditions not acceptable to the Committee. The Committee may require
the Optionee to make such representations and furnish such information
as it may consider appropriate in connection with the issuance or
delivery of any shares in compliance with applicable law and shall
have the authority to cause the Company at its expense to take any
action related to the this Agreement which may be required in
connection with such listing, registration, qualification, consent or
approval.
(c) REGISTRATION STATEMENT. If a registration statement is not in effect
under the Securities Act of 1933 or any applicable state securities
laws with respect to the Common Shares at the time of exercise of the
Options, the Company may require the Optionee to represent, in
writing, that the shares received are being acquired for investment
and not with a view to distribution and agree that the shares will not
be disposed of except pursuant to an effective registration statement,
unless the Company shall have received an opinion of counsel that such
disposition is exempt from such requirement under the Securities Act
of 1933 and any applicable state securities laws. The Company shall
include on certificates representing shares delivered pursuant to this
Agreement such legends referring to the foregoing representations or
restrictions and any other applicable restrictions on resale as the
Committee, in its discretion, shall deem appropriate.
15. NO RIGHT OF EMPLOYMENT. Nothing in this Agreement shall confer any right
on an Optionee to become an employee of the Company.
16. AMENDMENT OF OPTION. The Company may alter, amend, or terminate the Option
only with the Optionee's consent, except for adjustments expressly provided
by this Agreement.
-3-
<PAGE>
17. CHOICE OF LAW. The validity, interpretation and administration of this
Agreement and of any rules, regulation, determinations or decisions made
thereunder, and the rights of any and all persons having or claiming to
have any interest therein or thereunder, shall be determined exclusively in
accordance with the laws of the State of Illinois. Without limiting the
generality of the foregoing, the period within which any action in
connection with this Agreement must be commenced shall be governed by the
laws of the State of Illinois without regard to the place where the act or
omission complained of took place, the residence or any party to such
action or the place where the action may be brought.
18. MISCELLANEOUS. This Agreement is the final, complete, and exclusive
expression of the understanding between the parties and supersedes any
prior or contemporaneous agreement or representation, oral or written,
between them. Modification of this Agreement or waiver of a condition
herein must be written and signed by the party to be bound. In the event
that any paragraph or provision of this Agreement shall be held to be
illegal or unenforceable, such paragraph or provision shall be severed from
the Agreement and the entire Agreement shall not fail on account thereof,
but shall otherwise remain in full force and effect.
19. NOTICES. All notices and other communications required or permitted under
this Agreement shall be written, and shall be either delivered personally
or sent by registered or certified first-class mail, postage prepaid and
return receipt requested, or by telex or telecopier, addressed as follows:
if to the Company, to the Company's principal office, and if to the
Optionee or his successor, to the address last furnished by such person to
the Company. Each such notice and communication delivered personally shall
be deemed to have been given when delivered. Each such notice and
communication given by mail shall be deemed to have been given when it is
deposited in the United States mail in the manner specified herein, and
each such notice and communication given by telex or telecopier shall be
deemed to have been given when it is so transmitted and the appropriate
answerback is received. A party may change its address for the purpose
hereof by giving notice in accordance with the provisions of this Section
19.
-4-
<PAGE>
IN WITNESS WHEREOF, the Optionee and the Company have executed this
Agreement as of the date first written above.
CENTERPOINT PROPERTIES TRUST
By:
-----------------------------------
John S. Gates, Jr.,
President and Chief Executive Officer
OPTIONEE
------------------------------------------
Nicholas C. Babson
-5-
<PAGE>
Exhibit 10.60
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (the "Agreement") is dated as of May 15, 1998
between CENTERPOINT PROPERTIES TRUST, a Maryland real estate investment trust
(the "Company"), and ALAN D. FELD (the "Optionee").
The parties agree as follows:
1. GRANT OF OPTION. In recognition of the outstanding service to the Company
performed by the Optionee as a trustee of the Company for the past four
years and in addition to the options granted to Optionee under the 1993
Stock Option Plan, the Company hereby grants to the Optionee an option (the
"Option") to purchase 12,000 shares of the Company's Common Shares of
Beneficial Interest, $.001 par value per share (the "Shares") under the
terms and conditions hereof.
2. TERM. The Option becomes exercisable and terminates in accordance with the
schedule set forth in Section 5 hereof.
3. PRICE. The price of each share purchased by exercise of the Option is
$34.375.
4. PARTIAL EXERCISE. The Option, to the extent exercisable under Section 5
hereof, may be exercised in whole or in part provided that the Option may
not be exercised for less than 100 shares in any single transaction unless
such exercise pertains to the entire number of shares then covered by the
Option.
5. EXERCISE PERIOD.
(a) The Option shall be fully vested at the time of the award.
(b) If it has not been previously terminated pursuant to the terms of this
Agreement, the Option shall terminate at the close of business on the
day before the tenth anniversary of the date of this Agreement.
(c) Notwithstanding the foregoing, the Option shall terminate upon the
dissolution of the Company.
6. METHOD OF EXERCISE. The Option shall be exercised by written notice by
Optionee to the Company specifying the number of Shares that such person
elects to purchase, accompanied by full payment, in cash or current funds,
for such Shares.
7. ISO TREATMENT. It is not intended that the Option shall qualify as an
"incentive stock option" as described in section 422 of the Internal
Revenue Code of 1986, as amended.
8. RIGHTS OF SHAREHOLDER. No person, estate, or other entity will have the
rights of a shareholder with respect to Shares subject to the Options until
a certificate or certificates for these Shares have been delivered to the
person exercising the Option.
<PAGE>
9. RIGHTS OF THE COMPANY. This Agreement does not affect the Company's right
to take any corporate action, including other changes in its right to
recapitalize, reorganize or consolidate, issue bonds, notes or stock,
including preferred stock or options therefor, to dissolve or liquidate, or
to sell or transfer any part of its assets or business.
10. CHANGES IN CAPITALIZATION.
(a) In the event that:
(i) The outstanding Common Shares are exchanged, in connection
with a merger or consolidation of the Company or a sale by the Company of
all or a part of its assets, for a different number or class of shares of
beneficial interest or other securities of the Company or for shares of
stock or other securities of any other corporation;
(ii) A recapitalization, split-up or combination of Common shares
is effected;
(iii) New, different or additional shares or other securities of the
Company or of another corporation are received by the holders of Common
Shares, in respect of their ownership of Common Shares; or
(iv) Any stock dividend is made to the holders of Common Shares;
(b) Then the Board of Trustees of the Company or the Compensation
Committee designated by the Board of Trustees (hereinafter referred to
collectively as the "Committee") shall make the appropriate adjustment to:
(i) The number and class of shares or other securities that may be
issued pursuant to exercise of Options;
(ii) The purchase price to be paid per share under outstanding
Options, and/or
(iii) The number of shares covered by each outstanding Option.
11. TAXES. The Company, if necessary or desirable, may pay or withhold the
amount of any tax attributable to any shares deliverable under this
Agreement, and the Company may defer making delivery until it is
indemnified to its satisfaction for that tax.
12. STOCK LEGENDS. Any certificate issued to evidence shares issued under the
Option shall bear such legends and statements as the Committee deems
advisable to assure compliance with all federal and state laws and
regulations.
13. ASSIGNABILITY. The Option shall not be transferable other than by will or
the laws of descent and distribution. During the Optionee's lifetime, the
Option shall be exercisable only by the Optionee, except as otherwise
provided herein. The Option shall be transferable, on the Optionee's
death, to the Optionee's estate and shall be exercisable, during the
Optionee's lifetime, by the Optionee's guardian or legal representative.
-2-
<PAGE>
14. TRANSFERABILITY.
(a) IN GENERAL. No Common Shares acquired pursuant to the exercise of an
Option may be sold, transferred, pledged, assigned, or otherwise
alienated or hypothecated until six months from the date of exercise
of the Option.
(b) SECURITIES LAWS RESTRICTIONS. The Company may impose such other
restrictions on any shares issued pursuant to the exercise of Options
hereunder as it may deem advisable including, but not limited to,
restrictions intended to achieve compliance with the Securities Act of
1933, as amended, with the requirements of any stock exchange upon
which the Common Shares is then listed, and with any Blue Sky or state
securities laws applicable to such Common Shares. If at any time the
Committee shall determine, in its discretion, that the listing,
registration or qualification of any of the shares to be issued upon
the exercise of the Options on any securities exchange or under any
state or Federal law, or the consent or approval of any governmental
or regulatory body, is necessary or desirable as a condition of or in
connection with the issuance of shares hereunder, then no exercise of
Options may be made unless such listing, registration, qualification,
consent or approval shall have been effected or obtained free of any
conditions not acceptable to the Committee. The Committee may require
the Optionee to make such representations and furnish such information
as it may consider appropriate in connection with the issuance or
delivery of any shares in compliance with applicable law and shall
have the authority to cause the Company at its expense to take any
action related to the this Agreement which may be required in
connection with such listing, registration, qualification, consent or
approval.
(c) REGISTRATION STATEMENT. If a registration statement is not in effect
under the Securities Act of 1933 or any applicable state securities
laws with respect to the Common Shares at the time of exercise of the
Options, the Company may require the Optionee to represent, in
writing, that the shares received are being acquired for investment
and not with a view to distribution and agree that the shares will not
be disposed of except pursuant to an effective registration statement,
unless the Company shall have received an opinion of counsel that such
disposition is exempt from such requirement under the Securities Act
of 1933 and any applicable state securities laws. The Company shall
include on certificates representing shares delivered pursuant to this
Agreement such legends referring to the foregoing representations or
restrictions and any other applicable restrictions on resale as the
Committee, in its discretion, shall deem appropriate.
15. NO RIGHT OF EMPLOYMENT. Nothing in this Agreement shall confer any right
on an Optionee to become an employee of the Company.
16. AMENDMENT OF OPTION. The Company may alter, amend, or terminate the Option
only with the Optionee's consent, except for adjustments expressly provided
by this Agreement.
-3-
<PAGE>
17. CHOICE OF LAW. The validity, interpretation and administration of this
Agreement and of any rules, regulation, determinations or decisions made
thereunder, and the rights of any and all persons having or claiming to
have any interest therein or thereunder, shall be determined exclusively in
accordance with the laws of the State of Illinois. Without limiting the
generality of the foregoing, the period within which any action in
connection with this Agreement must be commenced shall be governed by the
laws of the State of Illinois without regard to the place where the act or
omission complained of took place, the residence or any party to such
action or the place where the action may be brought.
18. MISCELLANEOUS. This Agreement is the final, complete, and exclusive
expression of the understanding between the parties and supersedes any
prior or contemporaneous agreement or representation, oral or written,
between them. Modification of this Agreement or waiver of a condition
herein must be written and signed by the party to be bound. In the event
that any paragraph or provision of this Agreement shall be held to be
illegal or unenforceable, such paragraph or provision shall be severed from
the Agreement and the entire Agreement shall not fail on account thereof,
but shall otherwise remain in full force and effect.
19. NOTICES. All notices and other communications required or permitted under
this Agreement shall be written, and shall be either delivered personally
or sent by registered or certified first-class mail, postage prepaid and
return receipt requested, or by telex or telecopier, addressed as follows:
if to the Company, to the Company's principal office, and if to the
Optionee or his successor, to the address last furnished by such person to
the Company. Each such notice and communication delivered personally shall
be deemed to have been given when delivered. Each such notice and
communication given by mail shall be deemed to have been given when it is
deposited in the United States mail in the manner specified herein, and
each such notice and communication given by telex or telecopier shall be
deemed to have been given when it is so transmitted and the appropriate
answerback is received. A party may change its address for the purpose
hereof by giving notice in accordance with the provisions of this Section
19.
-4-
<PAGE>
IN WITNESS WHEREOF, the Optionee and the Company have executed this
Agreement as of the date first written above.
CENTERPOINT PROPERTIES TRUST
By:
-----------------------------------
John S. Gates, Jr.,
President and Chief Executive Officer
OPTIONEE
------------------------------------------
Alan D. Feld
-5-
<PAGE>
Exhibit 10.61
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (the "Agreement") is dated as of May 15, 1998
between CENTERPOINT PROPERTIES TRUST, a Maryland real estate investment trust
(the "Company"), and JOHN J. KINSELLA (the "Optionee").
The parties agree as follows:
1. GRANT OF OPTION. In recognition of the outstanding service to the Company
performed by the Optionee as a trustee of the Company for the past four
years and in addition to the options granted to Optionee under the 1993
Stock Option Plan, the Company hereby grants to the Optionee an option (the
"Option") to purchase 12,000 shares of the Company's Common Shares of
Beneficial Interest, $.001 par value per share (the "Shares") under the
terms and conditions hereof.
2. TERM. The Option becomes exercisable and terminates in accordance with the
schedule set forth in Section 5 hereof.
3. PRICE. The price of each share purchased by exercise of the Option is
$34.375.
4. PARTIAL EXERCISE. The Option, to the extent exercisable under Section 5
hereof, may be exercised in whole or in part provided that the Option may
not be exercised for less than 100 shares in any single transaction unless
such exercise pertains to the entire number of shares then covered by the
Option.
5. EXERCISE PERIOD.
(a) The Option shall be fully vested at the time of the award.
(b) If it has not been previously terminated pursuant to the terms of this
Agreement, the Option shall terminate at the close of business on the
day before the tenth anniversary of the date of this Agreement.
(c) Notwithstanding the foregoing, the Option shall terminate upon the
dissolution of the Company.
6. METHOD OF EXERCISE. The Option shall be exercised by written notice by
Optionee to the Company specifying the number of Shares that such person
elects to purchase, accompanied by full payment, in cash or current funds,
for such Shares.
7. ISO TREATMENT. It is not intended that the Option shall qualify as an
"incentive stock option" as described in section 422 of the Internal
Revenue Code of 1986, as amended.
8. RIGHTS OF SHAREHOLDER. No person, estate, or other entity will have the
rights of a shareholder with respect to Shares subject to the Options until
a certificate or certificates for these Shares have been delivered to the
person exercising the Option.
<PAGE>
9. RIGHTS OF THE COMPANY. This Agreement does not affect the Company's right
to take any corporate action, including other changes in its right to
recapitalize, reorganize or consolidate, issue bonds, notes or stock,
including preferred stock or options therefor, to dissolve or liquidate, or
to sell or transfer any part of its assets or business.
10. CHANGES IN CAPITALIZATION.
(a) In the event that:
(i) The outstanding Common Shares are exchanged, in connection
with a merger or consolidation of the Company or a sale by the Company of
all or a part of its assets, for a different number or class of shares of
beneficial interest or other securities of the Company or for shares of
stock or other securities of any other corporation;
(ii) A recapitalization, split-up or combination of Common shares
is effected;
(iii) New, different or additional shares or other securities of the
Company or of another corporation are received by the holders of Common
Shares, in respect of their ownership of Common Shares; or
(iv) Any stock dividend is made to the holders of Common Shares;
(b) Then the Board of Trustees of the Company or the Compensation
Committee designated by the Board of Trustees (hereinafter referred to
collectively as the "Committee") shall make the appropriate adjustment to:
(i) The number and class of shares or other securities that may be
issued pursuant to exercise of Options;
(ii) The purchase price to be paid per share under outstanding
Options, and/or
(iii) The number of shares covered by each outstanding Option.
11. TAXES. The Company, if necessary or desirable, may pay or withhold the
amount of any tax attributable to any shares deliverable under this
Agreement, and the Company may defer making delivery until it is
indemnified to its satisfaction for that tax.
12. STOCK LEGENDS. Any certificate issued to evidence shares issued under the
Option shall bear such legends and statements as the Committee deems
advisable to assure compliance with all federal and state laws and
regulations.
13. ASSIGNABILITY. The Option shall not be transferable other than by will or
the laws of descent and distribution. During the Optionee's lifetime, the
Option shall be exercisable only by the Optionee, except as otherwise
provided herein. The Option shall be transferable, on the Optionee's
death, to the Optionee's estate and shall be exercisable, during the
Optionee's lifetime, by the Optionee's guardian or legal representative.
-2-
<PAGE>
14. TRANSFERABILITY.
(a) IN GENERAL. No Common Shares acquired pursuant to the exercise of an
Option may be sold, transferred, pledged, assigned, or otherwise
alienated or hypothecated until six months from the date of exercise
of the Option.
(b) SECURITIES LAWS RESTRICTIONS. The Company may impose such other
restrictions on any shares issued pursuant to the exercise of Options
hereunder as it may deem advisable including, but not limited to,
restrictions intended to achieve compliance with the Securities Act of
1933, as amended, with the requirements of any stock exchange upon
which the Common Shares is then listed, and with any Blue Sky or state
securities laws applicable to such Common Shares. If at any time the
Committee shall determine, in its discretion, that the listing,
registration or qualification of any of the shares to be issued upon
the exercise of the Options on any securities exchange or under any
state or Federal law, or the consent or approval of any governmental
or regulatory body, is necessary or desirable as a condition of or in
connection with the issuance of shares hereunder, then no exercise of
Options may be made unless such listing, registration, qualification,
consent or approval shall have been effected or obtained free of any
conditions not acceptable to the Committee. The Committee may require
the Optionee to make such representations and furnish such information
as it may consider appropriate in connection with the issuance or
delivery of any shares in compliance with applicable law and shall
have the authority to cause the Company at its expense to take any
action related to the this Agreement which may be required in
connection with such listing, registration, qualification, consent or
approval.
(c) REGISTRATION STATEMENT. If a registration statement is not in effect
under the Securities Act of 1933 or any applicable state securities
laws with respect to the Common Shares at the time of exercise of the
Options, the Company may require the Optionee to represent, in
writing, that the shares received are being acquired for investment
and not with a view to distribution and agree that the shares will not
be disposed of except pursuant to an effective registration statement,
unless the Company shall have received an opinion of counsel that such
disposition is exempt from such requirement under the Securities Act
of 1933 and any applicable state securities laws. The Company shall
include on certificates representing shares delivered pursuant to this
Agreement such legends referring to the foregoing representations or
restrictions and any other applicable restrictions on resale as the
Committee, in its discretion, shall deem appropriate.
15. NO RIGHT OF EMPLOYMENT. Nothing in this Agreement shall confer any right
on an Optionee to become an employee of the Company.
16. AMENDMENT OF OPTION. The Company may alter, amend, or terminate the Option
only with the Optionee's consent, except for adjustments expressly provided
by this Agreement.
-3-
<PAGE>
17. CHOICE OF LAW. The validity, interpretation and administration of this
Agreement and of any rules, regulation, determinations or decisions made
thereunder, and the rights of any and all persons having or claiming to
have any interest therein or thereunder, shall be determined exclusively in
accordance with the laws of the State of Illinois. Without limiting the
generality of the foregoing, the period within which any action in
connection with this Agreement must be commenced shall be governed by the
laws of the State of Illinois without regard to the place where the act or
omission complained of took place, the residence or any party to such
action or the place where the action may be brought.
18. MISCELLANEOUS. This Agreement is the final, complete, and exclusive
expression of the understanding between the parties and supersedes any
prior or contemporaneous agreement or representation, oral or written,
between them. Modification of this Agreement or waiver of a condition
herein must be written and signed by the party to be bound. In the event
that any paragraph or provision of this Agreement shall be held to be
illegal or unenforceable, such paragraph or provision shall be severed from
the Agreement and the entire Agreement shall not fail on account thereof,
but shall otherwise remain in full force and effect.
19. NOTICES. All notices and other communications required or permitted under
this Agreement shall be written, and shall be either delivered personally
or sent by registered or certified first-class mail, postage prepaid and
return receipt requested, or by telex or telecopier, addressed as follows:
if to the Company, to the Company's principal office, and if to the
Optionee or his successor, to the address last furnished by such person to
the Company. Each such notice and communication delivered personally shall
be deemed to have been given when delivered. Each such notice and
communication given by mail shall be deemed to have been given when it is
deposited in the United States mail in the manner specified herein, and
each such notice and communication given by telex or telecopier shall be
deemed to have been given when it is so transmitted and the appropriate
answerback is received. A party may change its address for the purpose
hereof by giving notice in accordance with the provisions of this Section
19.
-4-
<PAGE>
IN WITNESS WHEREOF, the Optionee and the Company have executed this
Agreement as of the date first written above.
CENTERPOINT PROPERTIES TRUST
By:
-----------------------------------
John S. Gates, Jr.,
President and Chief Executive Officer
OPTIONEE
------------------------------------------
John J. Kinsella
-5-
<PAGE>
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (the "Agreement") is dated as of May 15, 1998
between CENTERPOINT PROPERTIES TRUST, a Maryland real estate investment trust
(the "Company"), and THOMAS E. ROBINSON (the "Optionee").
The parties agree as follows:
1. GRANT OF OPTION. In recognition of the outstanding service to the Company
performed by the Optionee as a trustee of the Company for the past four
years and in addition to the options granted to Optionee under the 1993
Stock Option Plan, the Company hereby grants to the Optionee an option (the
"Option") to purchase 12,000 shares of the Company's Common Shares of
Beneficial Interest, $.001 par value per share (the "Shares") under the
terms and conditions hereof.
2. TERM. The Option becomes exercisable and terminates in accordance with the
schedule set forth in Section 5 hereof.
3. PRICE. The price of each share purchased by exercise of the Option is
$34.375.
4. PARTIAL EXERCISE. The Option, to the extent exercisable under Section 5
hereof, may be exercised in whole or in part provided that the Option may
not be exercised for less than 100 shares in any single transaction unless
such exercise pertains to the entire number of shares then covered by the
Option.
5. EXERCISE PERIOD.
(a) The Option shall be fully vested at the time of the award.
(b) If it has not been previously terminated pursuant to the terms of this
Agreement, the Option shall terminate at the close of business on the
day before the tenth anniversary of the date of this Agreement.
(c) Notwithstanding the foregoing, the Option shall terminate upon the
dissolution of the Company.
6. METHOD OF EXERCISE. The Option shall be exercised by written notice by
Optionee to the Company specifying the number of Shares that such person
elects to purchase, accompanied by full payment, in cash or current funds,
for such Shares.
7. ISO TREATMENT. It is not intended that the Option shall qualify as an
"incentive stock option" as described in section 422 of the Internal
Revenue Code of 1986, as amended.
8. RIGHTS OF SHAREHOLDER. No person, estate, or other entity will have the
rights of a shareholder with respect to Shares subject to the Options until
a certificate or certificates for these Shares have been delivered to the
person exercising the Option.
<PAGE>
9. RIGHTS OF THE COMPANY. This Agreement does not affect the Company's right
to take any corporate action, including other changes in its right to
recapitalize, reorganize or consolidate, issue bonds, notes or stock,
including preferred stock or options therefor, to dissolve or liquidate, or
to sell or transfer any part of its assets or business.
10. CHANGES IN CAPITALIZATION.
(a) In the event that:
(i) The outstanding Common Shares are exchanged, in connection
with a merger or consolidation of the Company or a sale by the Company of
all or a part of its assets, for a different number or class of shares of
beneficial interest or other securities of the Company or for shares of
stock or other securities of any other corporation;
(ii) A recapitalization, split-up or combination of Common shares
is effected;
(iii) New, different or additional shares or other securities of the
Company or of another corporation are received by the holders of Common
Shares, in respect of their ownership of Common Shares; or
(iv) Any stock dividend is made to the holders of Common Shares;
(b) Then the Board of Trustees of the Company or the Compensation
Committee designated by the Board of Trustees (hereinafter referred to
collectively as the "Committee") shall make the appropriate adjustment to:
(i) The number and class of shares or other securities that may be
issued pursuant to exercise of Options;
(ii) The purchase price to be paid per share under outstanding
Options, and/or
(iii) The number of shares covered by each outstanding Option.
11. TAXES. The Company, if necessary or desirable, may pay or withhold the
amount of any tax attributable to any shares deliverable under this
Agreement, and the Company may defer making delivery until it is
indemnified to its satisfaction for that tax.
12. STOCK LEGENDS. Any certificate issued to evidence shares issued under the
Option shall bear such legends and statements as the Committee deems
advisable to assure compliance with all federal and state laws and
regulations.
13. ASSIGNABILITY. The Option shall not be transferable other than by will or
the laws of descent and distribution. During the Optionee's lifetime, the
Option shall be exercisable only by the Optionee, except as otherwise
provided herein. The Option shall be transferable, on the Optionee's
death, to the Optionee's estate and shall be exercisable, during the
Optionee's lifetime, by the Optionee's guardian or legal representative.
-2-
<PAGE>
14. TRANSFERABILITY.
(a) IN GENERAL. No Common Shares acquired pursuant to the exercise of an
Option may be sold, transferred, pledged, assigned, or otherwise
alienated or hypothecated until six months from the date of exercise
of the Option.
(b) SECURITIES LAWS RESTRICTIONS. The Company may impose such other
restrictions on any shares issued pursuant to the exercise of Options
hereunder as it may deem advisable including, but not limited to,
restrictions intended to achieve compliance with the Securities Act of
1933, as amended, with the requirements of any stock exchange upon
which the Common Shares is then listed, and with any Blue Sky or state
securities laws applicable to such Common Shares. If at any time the
Committee shall determine, in its discretion, that the listing,
registration or qualification of any of the shares to be issued upon
the exercise of the Options on any securities exchange or under any
state or Federal law, or the consent or approval of any governmental
or regulatory body, is necessary or desirable as a condition of or in
connection with the issuance of shares hereunder, then no exercise of
Options may be made unless such listing, registration, qualification,
consent or approval shall have been effected or obtained free of any
conditions not acceptable to the Committee. The Committee may require
the Optionee to make such representations and furnish such information
as it may consider appropriate in connection with the issuance or
delivery of any shares in compliance with applicable law and shall
have the authority to cause the Company at its expense to take any
action related to the this Agreement which may be required in
connection with such listing, registration, qualification, consent or
approval.
(c) REGISTRATION STATEMENT. If a registration statement is not in effect
under the Securities Act of 1933 or any applicable state securities
laws with respect to the Common Shares at the time of exercise of the
Options, the Company may require the Optionee to represent, in
writing, that the shares received are being acquired for investment
and not with a view to distribution and agree that the shares will not
be disposed of except pursuant to an effective registration statement,
unless the Company shall have received an opinion of counsel that such
disposition is exempt from such requirement under the Securities Act
of 1933 and any applicable state securities laws. The Company shall
include on certificates representing shares delivered pursuant to this
Agreement such legends referring to the foregoing representations or
restrictions and any other applicable restrictions on resale as the
Committee, in its discretion, shall deem appropriate.
15. NO RIGHT OF EMPLOYMENT. Nothing in this Agreement shall confer any right
on an Optionee to become an employee of the Company.
16. AMENDMENT OF OPTION. The Company may alter, amend, or terminate the Option
only with the Optionee's consent, except for adjustments expressly provided
by this Agreement.
-3-
<PAGE>
17. CHOICE OF LAW. The validity, interpretation and administration of this
Agreement and of any rules, regulation, determinations or decisions made
thereunder, and the rights of any and all persons having or claiming to
have any interest therein or thereunder, shall be determined exclusively in
accordance with the laws of the State of Illinois. Without limiting the
generality of the foregoing, the period within which any action in
connection with this Agreement must be commenced shall be governed by the
laws of the State of Illinois without regard to the place where the act or
omission complained of took place, the residence or any party to such
action or the place where the action may be brought.
18. MISCELLANEOUS. This Agreement is the final, complete, and exclusive
expression of the understanding between the parties and supersedes any
prior or contemporaneous agreement or representation, oral or written,
between them. Modification of this Agreement or waiver of a condition
herein must be written and signed by the party to be bound. In the event
that any paragraph or provision of this Agreement shall be held to be
illegal or unenforceable, such paragraph or provision shall be severed from
the Agreement and the entire Agreement shall not fail on account thereof,
but shall otherwise remain in full force and effect.
19. NOTICES. All notices and other communications required or permitted under
this Agreement shall be written, and shall be either delivered personally
or sent by registered or certified first-class mail, postage prepaid and
return receipt requested, or by telex or telecopier, addressed as follows:
if to the Company, to the Company's principal office, and if to the
Optionee or his successor, to the address last furnished by such person to
the Company. Each such notice and communication delivered personally shall
be deemed to have been given when delivered. Each such notice and
communication given by mail shall be deemed to have been given when it is
deposited in the United States mail in the manner specified herein, and
each such notice and communication given by telex or telecopier shall be
deemed to have been given when it is so transmitted and the appropriate
answerback is received. A party may change its address for the purpose
hereof by giving notice in accordance with the provisions of this Section
19.
-4-
<PAGE>
IN WITNESS WHEREOF, the Optionee and the Company have executed this
Agreement as of the date first written above.
CENTERPOINT PROPERTIES TRUST
By:
-----------------------------------
John S. Gates, Jr.,
President and Chief Executive Officer
OPTIONEE
------------------------------------------
Thomas E. Robinson
-5-
<PAGE>
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (the "Agreement") is dated as of May 15, 1998
between CENTERPOINT PROPERTIES TRUST, a Maryland real estate investment trust
(the "Company"), and ROBERT L. STOVALL (the "Optionee").
The parties agree as follows:
1. GRANT OF OPTION. In recognition of the outstanding service to the Company
performed by the Optionee as a trustee of the Company for the past four
years and in addition to the options granted to Optionee under the 1993
Stock Option Plan, the Company hereby grants to the Optionee an option (the
"Option") to purchase 13,500 shares of the Company's Common Shares of
Beneficial Interest, $.001 par value per share (the "Shares") under the
terms and conditions hereof.
2. TERM. The Option becomes exercisable and terminates in accordance with the
schedule set forth in Section 5 hereof.
3. PRICE. The price of each share purchased by exercise of the Option is
$34.375.
4. PARTIAL EXERCISE. The Option, to the extent exercisable under Section 5
hereof, may be exercised in whole or in part provided that the Option may
not be exercised for less than 100 shares in any single transaction unless
such exercise pertains to the entire number of shares then covered by the
Option.
5. EXERCISE PERIOD.
(a) The Option shall be fully vested at the time of the award.
(b) If it has not been previously terminated pursuant to the terms of this
Agreement, the Option shall terminate at the close of business on the
day before the tenth anniversary of the date of this Agreement.
(c) Notwithstanding the foregoing, the Option shall terminate upon the
dissolution of the Company.
6. METHOD OF EXERCISE. The Option shall be exercised by written notice by
Optionee to the Company specifying the number of Shares that such person
elects to purchase, accompanied by full payment, in cash or current funds,
for such Shares.
7. ISO TREATMENT. It is not intended that the Option shall qualify as an
"incentive stock option" as described in section 422 of the Internal
Revenue Code of 1986, as amended.
8. RIGHTS OF SHAREHOLDER. No person, estate, or other entity will have the
rights of a shareholder with respect to Shares subject to the Options until
a certificate or certificates for these Shares have been delivered to the
person exercising the Option.
<PAGE>
9. RIGHTS OF THE COMPANY. This Agreement does not affect the Company's right
to take any corporate action, including other changes in its right to
recapitalize, reorganize or consolidate, issue bonds, notes or stock,
including preferred stock or options therefor, to dissolve or liquidate, or
to sell or transfer any part of its assets or business.
10. CHANGES IN CAPITALIZATION.
(a) In the event that:
(i) The outstanding Common Shares are exchanged, in connection
with a merger or consolidation of the Company or a sale by the Company of
all or a part of its assets, for a different number or class of shares of
beneficial interest or other securities of the Company or for shares of
stock or other securities of any other corporation;
(ii) A recapitalization, split-up or combination of Common shares
is effected;
(iii) New, different or additional shares or other securities of the
Company or of another corporation are received by the holders of Common
Shares, in respect of their ownership of Common Shares; or
(iv) Any stock dividend is made to the holders of Common Shares;
(b) Then the Board of Trustees of the Company or the Compensation
Committee designated by the Board of Trustees (hereinafter referred to
collectively as the "Committee") shall make the appropriate adjustment to:
(i) The number and class of shares or other securities that may be
issued pursuant to exercise of Options;
(ii) The purchase price to be paid per share under outstanding
Options, and/or
(iii) The number of shares covered by each outstanding Option.
11. TAXES. The Company, if necessary or desirable, may pay or withhold the
amount of any tax attributable to any shares deliverable under this
Agreement, and the Company may defer making delivery until it is
indemnified to its satisfaction for that tax.
12. STOCK LEGENDS. Any certificate issued to evidence shares issued under the
Option shall bear such legends and statements as the Committee deems
advisable to assure compliance with all federal and state laws and
regulations.
13. ASSIGNABILITY. The Option shall not be transferable other than by will or
the laws of descent and distribution. During the Optionee's lifetime, the
Option shall be exercisable only by the Optionee, except as otherwise
provided herein. The Option shall be transferable, on the Optionee's
death, to the Optionee's estate and shall be exercisable, during the
Optionee's lifetime, by the Optionee's guardian or legal representative.
-2-
<PAGE>
14. TRANSFERABILITY.
(a) IN GENERAL. No Common Shares acquired pursuant to the exercise of an
Option may be sold, transferred, pledged, assigned, or otherwise
alienated or hypothecated until six months from the date of exercise
of the Option.
(b) SECURITIES LAWS RESTRICTIONS. The Company may impose such other
restrictions on any shares issued pursuant to the exercise of Options
hereunder as it may deem advisable including, but not limited to,
restrictions intended to achieve compliance with the Securities Act of
1933, as amended, with the requirements of any stock exchange upon
which the Common Shares is then listed, and with any Blue Sky or state
securities laws applicable to such Common Shares. If at any time the
Committee shall determine, in its discretion, that the listing,
registration or qualification of any of the shares to be issued upon
the exercise of the Options on any securities exchange or under any
state or Federal law, or the consent or approval of any governmental
or regulatory body, is necessary or desirable as a condition of or in
connection with the issuance of shares hereunder, then no exercise of
Options may be made unless such listing, registration, qualification,
consent or approval shall have been effected or obtained free of any
conditions not acceptable to the Committee. The Committee may require
the Optionee to make such representations and furnish such information
as it may consider appropriate in connection with the issuance or
delivery of any shares in compliance with applicable law and shall
have the authority to cause the Company at its expense to take any
action related to the this Agreement which may be required in
connection with such listing, registration, qualification, consent or
approval.
(c) REGISTRATION STATEMENT. If a registration statement is not in effect
under the Securities Act of 1933 or any applicable state securities
laws with respect to the Common Shares at the time of exercise of the
Options, the Company may require the Optionee to represent, in
writing, that the shares received are being acquired for investment
and not with a view to distribution and agree that the shares will not
be disposed of except pursuant to an effective registration statement,
unless the Company shall have received an opinion of counsel that such
disposition is exempt from such requirement under the Securities Act
of 1933 and any applicable state securities laws. The Company shall
include on certificates representing shares delivered pursuant to this
Agreement such legends referring to the foregoing representations or
restrictions and any other applicable restrictions on resale as the
Committee, in its discretion, shall deem appropriate.
15. NO RIGHT OF EMPLOYMENT. Nothing in this Agreement shall confer any right
on an Optionee to become an employee of the Company.
16. AMENDMENT OF OPTION. The Company may alter, amend, or terminate the Option
only with the Optionee's consent, except for adjustments expressly provided
by this Agreement.
-3-
<PAGE>
17. CHOICE OF LAW. The validity, interpretation and administration of this
Agreement and of any rules, regulation, determinations or decisions made
thereunder, and the rights of any and all persons having or claiming to
have any interest therein or thereunder, shall be determined exclusively in
accordance with the laws of the State of Illinois. Without limiting the
generality of the foregoing, the period within which any action in
connection with this Agreement must be commenced shall be governed by the
laws of the State of Illinois without regard to the place where the act or
omission complained of took place, the residence or any party to such
action or the place where the action may be brought.
18. MISCELLANEOUS. This Agreement is the final, complete, and exclusive
expression of the understanding between the parties and supersedes any
prior or contemporaneous agreement or representation, oral or written,
between them. Modification of this Agreement or waiver of a condition
herein must be written and signed by the party to be bound. In the event
that any paragraph or provision of this Agreement shall be held to be
illegal or unenforceable, such paragraph or provision shall be severed from
the Agreement and the entire Agreement shall not fail on account thereof,
but shall otherwise remain in full force and effect.
19. NOTICES. All notices and other communications required or permitted under
this Agreement shall be written, and shall be either delivered personally
or sent by registered or certified first-class mail, postage prepaid and
return receipt requested, or by telex or telecopier, addressed as follows:
if to the Company, to the Company's principal office, and if to the
Optionee or his successor, to the address last furnished by such person to
the Company. Each such notice and communication delivered personally shall
be deemed to have been given when delivered. Each such notice and
communication given by mail shall be deemed to have been given when it is
deposited in the United States mail in the manner specified herein, and
each such notice and communication given by telex or telecopier shall be
deemed to have been given when it is so transmitted and the appropriate
answerback is received. A party may change its address for the purpose
hereof by giving notice in accordance with the provisions of this Section
19.
-4-
<PAGE>
IN WITNESS WHEREOF, the Optionee and the Company have executed this
Agreement as of the date first written above.
CENTERPOINT PROPERTIES TRUST
By:
-----------------------------------
John S. Gates, Jr.,
President and Chief Executive Officer
OPTIONEE
------------------------------------------
Robert L. Stovall
-5-
<PAGE>
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (the "Agreement") is dated as of May 15,
1998 between CenterPoint Properties Trust, a Maryland real estate investment
trust (the "Company"), and Norman R Bobins (the "Optionee").
The parties agree as follows:
1. GRANT OF OPTION. In order for the new trustee to foster alignment with
the Company's shareholders, the Company hereby grants to the Optionee an
option (the "Option") to purchase 12,000 shares of the Company's Common
Shares of Beneficial Interest, $.001 par value per share (the "Shares")
under the terms and conditions hereof.
2. TERM. The Option becomes exercisable and terminates in accordance with
the schedule set forth in Section 5 hereof.
3. PRICE. The price of each share purchased by exercise of the Option is
$34.375.
4. PARTIAL EXERCISE. The Option, to the extent exercisable under Section 5
hereof, may be exercised in whole or in part provided that the Option may
not be exercised for less than 100 shares in any single transaction unless
such exercise pertains to the entire number of shares then covered by the
Option.
5. EXERCISE PERIOD.
(a) The Option shall become exercisable as follows:
<TABLE>
<CAPTION>
Time Period Exercisable
<S> <C>
Prior to the first anniversary of the date of this Agreement None
After the first anniversary of the date of this Agreement One-third
After the second anniversary of the date of this Agreement Two-thirds
After the third anniversary of the date of this Agreement All
</TABLE>
(b) If it has not been previously terminated pursuant to the terms of
this Agreement, the Option shall terminate at the close of business
on the day before the tenth anniversary of the date of this
Agreement.
(c) Notwithstanding the foregoing, the Option shall terminate upon the
dissolution of the Company.
<PAGE>
6. METHOD OF EXERCISE. The Option shall be exercised by written notice by
Optionee to the Company specifying the number of Shares that such person
elects to purchase, accompanied by full payment, in cash or current funds,
for such Shares.
7. ISO TREATMENT. It is not intended that the Option shall qualify as an
"incentive stock option" as described in section 422 of the Internal
Revenue Code of 1986, as amended.
8. RIGHTS OF SHAREHOLDER. No person, estate, or other entity will have the
rights of a shareholder with respect to Shares subject to the Options
until a certificate or certificates for these Shares have been delivered
to the person exercising the Option.
9. RIGHTS OF THE COMPANY. This Agreement does not affect the Company's right
to take any corporate action, including other changes in its right to
recapitalize, reorganize or consolidate, issue bonds, notes or stock,
including preferred stock or options therefor, to dissolve or liquidate,
or to sell or transfer any part of its assets or business.
10. CHANGES IN CAPITALIZATION.
(a) In the event that:
(i) The outstanding Common Shares are exchanged, in connection with
a merger or consolidation of the Company or a sale by the Company of all
or a part of its assets, for a different number or class of shares of
beneficial interest or other securities of the Company or for shares of
stock or other securities of any other corporation;
(ii) A recapitalization, split-up or combination of Common shares is
effected;
(iii) New, different or additional shares or other securities of
the Company or of another corporation are received by the holders of
Common Shares, in respect of their ownership of Common Shares; or
(iv) Any stock dividend is made to the holders of Common Shares;
(b) Then the Board of Trustees of the Company or the Compensation
Committee designated by the Board of Trustees (hereinafter referred to
collectively as the "Committee") shall make the appropriate adjustment to:
(i) The number and class of shares or other securities that may be
issued pursuant to exercise of Options;
(ii) The purchase price to be paid per share under outstanding
Options, and/or
(iii) The number of shares covered by each outstanding Option.
11. TAXES. The Company, if necessary or desirable, may pay or withhold the
amount of any tax attributable to any shares deliverable under this
Agreement, and the Company may defer making delivery until it is
indemnified to its satisfaction for that tax.
-2-
<PAGE>
12. STOCK LEGENDS. Any certificate issued to evidence shares issued under the
Option shall bear such legends and statements as the Committee deems
advisable to assure compliance with all federal and state laws and
regulations.
13. ASSIGNABILITY. The Option shall not be transferable other than by will or
the laws of descent and distribution. During the Optionee's lifetime, the
Option shall be exercisable only by the Optionee, except as otherwise
provided herein. The Option shall be transferable, on the Optionee's
death, to the Optionee's estate and shall be exercisable, during the
Optionee's lifetime, by the Optionee's guardian or legal representative.
14. TRANSFERABILITY.
(a) IN GENERAL. No Common Shares acquired pursuant to the exercise of an
Option may be sold, transferred, pledged, assigned, or otherwise
alienated or hypothecated until six months from the date of exercise
of the Option.
(b) SECURITIES LAWS RESTRICTIONS. The Company may impose such other
restrictions on any shares issued pursuant to the exercise of Options
hereunder as it may deem advisable including, but not limited to,
restrictions intended to achieve compliance with the Securities Act
of 1933, as amended, with the requirements of any stock exchange upon
which the Common Shares is then listed, and with any Blue Sky or
state securities laws applicable to such Common Shares. If at any
time the Committee shall determine, in its discretion, that the
listing, registration or qualification of any of the shares to be
issued upon the exercise of the Options on any securities exchange or
under any state or Federal law, or the consent or approval of any
governmental or regulatory body, is necessary or desirable as a
condition of or in connection with the issuance of shares hereunder,
then no exercise of Options may be made unless such listing,
registration, qualification, consent or approval shall have been
effected or obtained free of any conditions not acceptable to the
Committee. The Committee may require the Optionee to make such
representations and furnish such information as it may consider
appropriate in connection with the issuance or delivery of any shares
in compliance with applicable law and shall have the authority to
cause the Company at its expense to take any action related to the
this Agreement which may be required in connection with such listing,
registration, qualification, consent or approval.
(c) REGISTRATION STATEMENT. If a registration statement is not in effect
under the Securities Act of 1933 or any applicable state securities
laws with respect to the Common Shares at the time of exercise of the
Options, the Company may require the Optionee to represent, in
writing, that the shares received are being acquired for investment
and not with a view to distribution and agree that the shares will
not be disposed of except pursuant to an effective registration
statement, unless the Company shall have received an opinion of
counsel that such disposition is exempt from such requirement under
the Securities Act of 1933 and any applicable state securities laws.
The Company shall include on certificates representing shares
delivered pursuant to this Agreement such legends referring to
-3-
<PAGE>
the foregoing representations or restrictions and any other
applicable restrictions on resale as the Committee, in its
discretion, shall deem appropriate.
15. NO RIGHT OF EMPLOYMENT. Nothing in this Agreement shall confer any right
on an Optionee to become an employee of the Company.
16. AMENDMENT OF OPTION. The Company may alter, amend, or terminate the
Option only with the Optionee's consent, except for adjustments expressly
provided by this Agreement.
17. CHOICE OF LAW. The validity, interpretation and administration of this
Agreement and of any rules, regulation, determinations or decisions made
thereunder, and the rights of any and all persons having or claiming to
have any interest therein or thereunder, shall be determined exclusively
in accordance with the laws of the State of Illinois. Without limiting
the generality of the foregoing, the period within which any action in
connection with this Agreement must be commenced shall be governed by the
laws of the State of Illinois without regard to the place where the act or
omission complained of took place, the residence or any party to such
action or the place where the action may be brought.
18. MISCELLANEOUS. This Agreement is the final, complete, and exclusive
expression of the understanding between the parties and supersedes any
prior or contemporaneous agreement or representation, oral or written,
between them. Modification of this Agreement or waiver of a condition
herein must be written and signed by the party to be bound. In the event
that any paragraph or provision of this Agreement shall be held to be
illegal or unenforceable, such paragraph or provision shall be severed
from the Agreement and the entire Agreement shall not fail on account
thereof, but shall otherwise remain in full force and effect.
19. NOTICES. All notices and other communications required or permitted under
this Agreement shall be written, and shall be either delivered personally
or sent by registered or certified first-class mail, postage prepaid and
return receipt requested, or by telex or telecopier, addressed as follows:
if to the Company, to the Company's principal office, and if to the
Optionee or his successor, to the address last furnished by such person to
the Company. Each such notice and communication delivered personally
shall be deemed to have been given when delivered. Each such notice and
communication given by mail shall be deemed to have been given when it is
deposited in the United States mail in the manner specified herein, and
each such notice and communication given by telex or telecopier shall be
deemed to have been given when it is so transmitted and the appropriate
answerback is received. A party may change its address for the purpose
hereof by giving notice in accordance with the provisions of this Section
19.
-4-
<PAGE>
IN WITNESS WHEREOF, the Optionee and the Company have executed this
Agreement as of the date first written above.
CENTERPOINT PROPERTIES TRUST
By: ___________________________________
John S. Gates, Jr.,
President and Chief Executive Officer
OPTIONEE
__________________________________________
Norman R Bobins
-5-
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> JUN-30-1998
<CASH> 35,867
<SECURITIES> 0
<RECEIVABLES> 46,624
<ALLOWANCES> 330
<INVENTORY> 0
<CURRENT-ASSETS> 33,768
<PP&E> 668,932
<DEPRECIATION> 51,704
<TOTAL-ASSETS> 733,157
<CURRENT-LIABILITIES> 37,528
<BONDS> 283,408
0
3
<COMMON> 20
<OTHER-SE> 412,198
<TOTAL-LIABILITY-AND-EQUITY> 733,157
<SALES> 0
<TOTAL-REVENUES> 55,302
<CGS> 0
<TOTAL-COSTS> 30,575
<OTHER-EXPENSES> 37
<LOSS-PROVISION> 100
<INTEREST-EXPENSE> 6,909
<INCOME-PRETAX> 14,601
<INCOME-TAX> 0
<INCOME-CONTINUING> 14,601
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 14,601
<EPS-PRIMARY> 0.74
<EPS-DILUTED> 0.74
</TABLE>
