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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
(Mark One)
X ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
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EXCHANGE ACT OF 1934 (FEE REQUIRED)
For the fiscal year ended DECEMBER 31, 1997 or
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
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EXCHANGE ACT OF 1934 (NO FEE REQUIRED)
For the transition period from ______________ to _______________
Commission file number 1-12630
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CENTERPOINT PROPERTIES TRUST
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(Exact Name of Registrant as Specified in its Charter)
MARYLAND 36-3910279
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(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
401 North Michigan Avenue, Suite 3000, Chicago, Illinois 60611
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(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code:(312) 346-5600
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Securities registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on Which Registered
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Common Shares of Beneficial New York Stock Exchange
Interest, par value $.001
8.22% Convertible Subordinated New York Stock Exchange
Debentures due 2004
8.48% Series A Preferred Shares New York Stock Exchange
of Beneficial Interest, par value
$.001
Securities registered pursuant to Section 12(g) of the Act:
None
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(Title of Class)
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 (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
X Yes No
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Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K (Section 229.405 of this chapter) is not contained herein, and
will not be contained, to the best of registrant's knowledge, in definitive
proxy or information statements incorporated by reference in Part III of this
Form 10-K or any amendment to this Form 10-K. [ ]
As of March 12, 1998, the aggregate market value of the voting stock held by
non-affiliates of the registrant was $502,172,731 (based on 14,962,316 shares
held by non-affiliates and computed by reference to the reported closing price).
The registrant had 16,923,565 common shares of beneficial interest, $.001 par
value, outstanding as of March 12, 1998.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of Common Stock and Debenture Prospectuses of the registrant, dated
December 3, 1993, and a Common Stock Prospectus of the registrant, dated
January 19, 1995, each filed pursuant to Rule 424 under the Securities Act of
1933, as amended, portions of the Registration Statement on Form S-3 dated
January 6, 1997, portions of the registrant's Form 10-Q for the quarter ended
September 30, 1995, portions of the 10-K for the year ended December 31,
1995, portions of the 10-Q for quarter ended September 30, 1996 , portions
of the Form 10-K for the year ended December 31, 1996, portions of the Form
S-4 dated August 13, 1997 and Pre-Effective Amendment No. 1 to the S-4dated
August 28, 1997, portions of the Form 8-A dated November 5, 1997 and portions
of the Form 10-Q for the quarter ended September 30, 1997 are incorporated by
reference into Part IV of this Annual Report on Form 10-K. A portion of the
registrant's definitive proxy statement is incorporated by reference into
Part III of this Annual Report on Form 10-K.
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TABLE OF CONTENTS
PART I Page
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Item 1. Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Item 2. Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
Item 3. Legal Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . .22
Item 4. Submission of Certain Items to a Vote of Security Holders. . . . . .22
PART II
Item 5. Market for Registrant's Common Equity and Related Matters. . . . . .23
Item 6. Selected Historical Financial Data . . . . . . . . . . . . . . . . .24
Item 7. Management's Discussion and Analysis of Financial Condition and
Results of Operations. . . . . . . . . . . . . . . . . . . . . . . .26
Item 8. Financial Statements and Supplementary Data. . . . . . . . . . . . .32
Item 9. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure . . . . . . . . . . . . . . . . . . . . . . . .32
PART III
Item 10. Directors and Executive Officers of the Registrant . . . . . . . . .33
Item 11. Executive Compensation . . . . . . . . . . . . . . . . . . . . . . .33
Item 12. Security Ownership of Certain Beneficial Owners and Management . . .33
Item 13. Certain Relationships and Related Transactions . . . . . . . . . . .33
PART IV
Item 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K. . .34
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PART I
This Annual Report on Form 10-K 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 various factors, including, but are 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 and the potential adverse impact of market interest
rates on the cost of borrowings by the Company and on the market price for the
Company's securities.
ITEM 1. BUSINESS.
THE COMPANY
CenterPoint Properties Trust (the "Company") is a fully integrated real
estate investment trust focused on the acquisition, development, redevelopment,
management and ownership of warehouse/industrial property located in Greater
Chicago (defined as the area within a 150-mile radius of Chicago, including
Milwaukee, Wisconsin and South Bend, Indiana), which, according to a ranking of
markets published by Torto Wheaton Research and information published by CB
Commercial, totals approximately 1.2 billion square feet, making it the largest
warehouse/industrial market in the United States. The Company's investment and
management portfolio currently consists of 95 warehouse/industrial properties
containing approximately 22.1 million square feet (see the table of
warehouse/industrial properties beginning on p. 14). The Company also owns and
manages three retail properties, one parking lot and one apartment property,
holds mortgages on two warehouse/industrial properties, and is developing eight
build-to-suit projects. The Company's total investment and management
portfolio, including the non-industrial properties, mortgage investments and
build-to-suit projects, is approximately 25 million square feet. Based on
published statistics regarding square feet of space owned and managed by other
firms and publicly available information filed with the Securities and Exchange
Commission, as well as its knowledge and experience in the market, the Company
believes it is the largest owner and operator of warehouse/industrial property
in Greater Chicago. As of December 31, 1997, the Company's properties were 97%
leased, excluding properties which are currently being redeveloped and not
leasable. The warehouse/industrial properties are occupied by 178 tenants in
diverse industries. No tenant accounts for the lease of more than 5% of the
Company's total revenues. Substantially all of the Company's properties have
been constructed or renovated during the past ten years.
INVESTMENT OBJECTIVES AND BUSINESS POLICIES
The Company's objective is to maximize shareholder value by pursuing a
business strategy focused on investment and ownership of warehouse/industrial
properties in Greater Chicago and a growth strategy consisting of (i) intensive
management of its existing properties and (ii) the acquisition of existing
leased warehouse/industrial properties, build-to-suit projects and properties
suitable for redevelopment; and (iii) development of buildings for purchase by
tenants or institutions generating fee income for the Company.
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BUSINESS STRATEGIES
WAREHOUSE/INDUSTRIAL PROPERTY. The Company believes that for the following
reasons investment in warehouse/industrial property provides the opportunity for
attractive returns and stable cash flow:
- LOW CAPITAL REQUIREMENTS. The cost per square foot of developing
warehouse/industrial properties typically ranges between $40-45 per
square foot, which is lower than the cost of developing other types of
property. From the Company's perspective, this results in less capital
committed to any particular property, permitting greater
diversification of the Company's risk. In addition, relative to other
property types, fewer tenant improvements are required to renew or
lease warehouse industrial space, minimizing the level of recurring
capital expenditures necessary to sustain rental income.
- HIGH TENANT RETENTION. Unlike office, retail and multi-family
buildings, most warehouse/industrial buildings are occupied by a
single tenant. Relocation tends to be costly for tenants of
warehouse/industrial properties because of high tenant investment in
production set up expenses, machinery and other site specific
improvements (in many cases higher than the landlord's investment).
To avoid these costs, tenants typically lease space that exceeds their
immediate needs or space in buildings that are readily expandable.
Tenant retention and expansion therefore tend to be higher than for
other property types.
- FAVORABLE LEASE TERMS. Warehouse/industrial buildings generally are
leased on a "triple net" basis, under which tenants are contractually
obligated to pay directly, or reimburse the landlord, for virtually
all costs of occupancy, including property taxes, utilities, insurance
and maintenance. In addition, the leases generally provide for rent
growth through contractual rent increases or increases tied to certain
indices such as the Consumer Price Index.
- SHORT CONSTRUCTION PERIODS. The Company believes that the
comparatively short development period for industrial buildings
(typically six to nine months) relative to other property types has
resulted in less speculative building and, therefore, a supply of
industrial property that more closely corresponds to tenant demand.
This has kept vacancy levels on average lower than for other property
types and has produced greater rental rate stability.
- LOW COST OF MANAGEMENT. The Company believes that the cost of
managing warehouse/industrial property tends to be less than for other
property types, because of large average tenant spaces, more limited
building and tenant improvements to maintain, and relatively long
lease terms.
- LIMITED INSTITUTIONAL COMPETITION. The Company believes that higher
overall investment returns are achievable for warehouse/industrial
property than other property types because such assets, typically $3
to $6 million in purchase price, are too small to justify
institutional attention. The Company's typical competitor for assets
of this size is a sponsor of a single asset partnership that typically
has a higher cost of capital and less financial flexibility than the
Company.
GREATER CHICAGO. The Company believes that Greater Chicago offers
significant opportunities for investment in and ownership of
warehouse/industrial property for the following reasons:
- ECONOMIC CHARACTERISTICS AND GROWTH. Greater Chicago is the nation's
largest
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warehouse/industrial market, with a diverse tenant base that lessens
cyclical risk and a central continental location and transportation
infrastructure that support continued growth. Greater Chicago is
currently enjoying very favorable trends in growth, business
investment, utilization and employment, which have resulted in
increased space demand and increasing rents. Although the Company
believes it is the largest owner and operator of warehouse/industrial
property in Greater Chicago, its properties represented less than 2%
of the market (based on square footage) as of December 31, 1997,
allowing substantial opportunities for future growth through
acquisitions.
- MANAGEMENT EXPERIENCE. The Company's executive officers and the vice
chairman together have over 100 years of combined real estate
experience, primarily in warehouse/industrial properties located in
Greater Chicago. Since 1977, they have completed approximately 300
industrial or commercial real estate projects aggregating over
approximately 30 million square feet. This experience creates numerous
opportunities for acquisitions, redevelopments and build-to-suits
because of management's long-standing relationships with tenants and
brokers within Greater Chicago. Management's market knowledge enables
the Company to rapidly evaluate and respond to investment and leasing
transactions and to actively create such opportunities.
- BUSINESS EFFICIENCIES. The Company believes that geographic
concentration provides significant business efficiencies. As a large
owner of warehouse/industrial property located in most major Greater
Chicago submarkets, the Company is able to market multiple locations
and buildings and consequently has a competitive advantage in securing
leasing opportunities. The Company also believes that operating
economies of scale resulting from geographic concentration enhance its
ability to offer lower occupancy costs to its tenants. The Company
believes that its focus on warehouse/industrial properties in Greater
Chicago also enables the expansion of its portfolio without a
corresponding increase in general and administrative expense.
GROWTH STRATEGIES
INTENSIVE PROPERTY MANAGEMENT. The Company strives to provide the highest
possible service to its tenants by addressing its tenants' occupancy needs and
meeting their evolving space requirements. The Company seeks to become the
"industrial landlord of choice" in the markets it operates. Management believes
tenant satisfaction resulting from the Company's "hands on" management approach
increases rental revenues by increasing tenant retention, minimizing reletting
expense and facilitating rental increases. Management also believes that tenant
satisfaction creates profitable expansion and build-to-suit opportunities from
existing tenants.
To develop its tenant franchise, the Company provides a variety of tenant
services, including providing high quality, attractive space; promptly and
fairly attending to tenant building or billing concerns; obtaining the lowest
possible utility, insurance and real estate tax charges; responding rapidly to
expansion or space reconfiguration requests; and assisting tenants in meeting
their capital equipment needs. The Company views tenant service as a key factor
in its business and has established tenant satisfaction as one of its primary
corporate goals and a principal measure in the Company's incentive pay program
for employees.
The Company's tenant service strategy benefits from the size and
concentration of the Company's real estate holdings in Greater Chicago. As a
large owner of warehouse/industrial properties in a single
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geographic market, the Company believes it can obtain for its tenants the
benefits of bulk purchase of goods and services. Management believes that
minimizing tenants' occupancy costs builds tenant loyalty and provides the
Company with a significant marketing advantage.
The Company's own staff is responsible for managing the Company's entire
real estate portfolio. The Company currently staffs eight management regions,
each serving a particular segment of Greater Chicago, and each staffed with a
team consisting of a regional manager, an assistant manager and accounting
support personnel. Each team is responsible for all aspects of the management
and leasing of its assigned properties. The Company intends to establish
additional regional offices as the size of its portfolio increases.
To motivate employees to provide the highest level of tenant service, the
Company has established a pay-for-performance compensation plan under which the
incentive pay of each participating employee depends in part on the results of
an annual tenant satisfaction survey administered by the Company's independent
directors. Employee incentive pay is also dependent on the achievement of
targeted portfolio occupancy and targeted per share funds from operations, each
of which the Company believes is enhanced by tenant service.
VALUE-ADDED INVESTMENTS. The Company seeks to acquire warehouse/industrial
properties that have an initial cash yield greater than the Company's cost of
capital (currently estimated to be less than 10.0%), that offer the best
opportunity for cash flow growth and that meet the Company's investment
criteria. The Company focuses on three types of transactions to which it can
add value through the application of its development, management, construction,
marketing and financial expertise. These transactions include the acquisition
of: (i) existing leased properties, (ii) build-to-suit projects and
(iii) older, economically viable properties that can be redeveloped. A table of
the Company's warehouse/industrial properties with a description of each
investment type is set forth beginning on page 14 hereof.
- EXISTING LEASED PROPERTIES. The Company focuses primarily on
warehouse/industrial properties and build-to-suits with purchase
prices ranging between $3 million and $6 million, which management
believes are too small to be efficiently acquired on an individual
basis by most institutions. As a public company with significant
access to capital, including its lines of credit, the Company believes
that it will continue to be able to take advantage of numerous
acquisition opportunities in this price range.
- BUILD-TO-SUIT PROPERTIES. In a build-to-suit transaction, the Company
typically enters into a fixed-price forward purchase commitment for a
property that has been substantially preleased to a single tenant,
thereby eliminating the construction and leasing risk generally
associated with speculative building. Although tenants are involved
in site selection and design decisions, it is management's policy to
acquire buildings readily adaptable to a variety of tenants and
alternative uses. The Company has achieved and expects to continue to
achieve favorable yields from build-to-suit transactions because of
the Company's active involvement in the creation and financing of
these projects.
- REDEVELOPMENT PROPERTIES. The Company seeks to acquire certain
warehouse/industrial properties for redevelopment, subdivision and
re-leasing. Such properties are generally larger than the leased
properties and build-to-suits acquired by the Company and typically
involve significant reconfiguration and redevelopment expense prior to
re-leasing. Competition for these properties is limited because, in
management's experience, institutional investors generally lack
redevelopment capability and prefer to invest in new leased product
and because
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smaller privately held firms typically lack the capital necessary to
engage in redevelopments. Management intends to acquire for
redevelopment only properties with sufficient existing cash flow or
expected cash flow from pre-leasing to cover the capital cost of the
Company's initial investment. Redevelopment projects will be acquired
only if the Company determines that underlying tenant demand exists to
complete the leasing of any vacant space at favorable rates, that a
substantial rent advantage can be secured through lower property
acquisition cost and that the anticipated increase in Company cash
flow justifies associated project risks.
- REDEPLOYMENT OF CAPITAL. The Company seeks, where possible, to sell
properties in transactions intended to qualify as tax-free exchanges
under applicable provisions of the Internal Revenue Code and redeploy
the proceeds of such sales in properties with higher yielding
opportunities where the Company believes significant value can be
added.
The Company has developed the following investment criteria which it has
determined are important to maximize its return on investment:
- ADAPTABLE STRUCTURE AND CONFIGURATION. To maximize occupancy and
minimize reletting expense and portfolio vacancy, the Company seeks
"generic" properties or properties that have flexible floor plans
amenable to inexpensive subdivision and adaptable to a wide variety of
industrial or warehouse uses. A building should typically be
single-story, with a ceiling height of at least 18 feet (measured from
the floor to the lowest point of the horizontal roof supports). The
building must be structurally sound, capable of bearing heavy floor
loads and readily divisible for use by multiple tenants. Generally,
less than 10% of the building's gross leasable area should be devoted
to office or similar uses. The Company generally does not intend to
invest in tenant-specific improvements not usable by other potential
tenants, and it generally does not intend to acquire limited or
special use properties, such as those devoted to research and
development, heavy manufacturing processes or retail warehouse
outlets.
- LOCATION AND TRANSPORTATION ACCESS. To be acceptable to diverse
tenants, a property should be located in a well-maintained industrial
park or area zoned for industrial uses and be in close proximity to
easily accessible interstate highway interchanges. The building
itself should have adequate loading docks and be sited to permit truck
access and circulation. Rail service is also desirable.
- ENVIRONMENTAL AND ZONING COMPLIANCE. A property must be in compliance
with applicable environmental regulations, must not present material
financial risk to the Company due to potential remediation costs
associated with prior or ongoing practices or environmental conditions
at the property, and must not be likely to be threatened by
ascertainable material environmental hazards emanating from
surrounding properties. The intended use of the property must also be
in compliance with all applicable zoning, fire and business
ordinances.
- EXPANSION POTENTIAL. A property should have available additional land
to permit expansion by existing tenants.
- TENANT CREDIT. A property should be leased to one or more
well-managed, creditworthy tenants that are capable of meeting their
rent and other lease obligations. A tenant's operations must be
environmentally sound and must not damage the property or impair
reletting. The tenant's business should also be consistent with the
Company's tenant diversification goals.
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- LEASE CHARACTERISTICS. Existing or anticipated leases should provide
for (i) rents consistent with the rents paid by comparable tenants in
similar facilities in the same submarkets; (ii) the pass through to
tenants of all operating, maintenance, tax and administrative costs
and increases in such costs; (iii) rent indexation or fixed rental
increases that equal or exceed management's expectation for inflation;
and (iv) a term consistent with the amount of the Company's investment
in the property and compatible with the Company's overall lease
expiration schedule.
OTHER TENANT SERVICES. The Company, through its unconsolidated subsidiary,
CenterPoint Realty Services, also seeks to provide value-added services by the
development of assets for purchase and by making various commodities and
services available to tenants.
The Company develops assets for purchase by tenants and institutions for
which the Company earns fees. Typically, these transactions have yields below
the Company's investment return hurdle, but offer substantial profit
opportunities relative to the level of required capital and management time.
The Company is afforded these opportunities as a consequence of the size of its
existing portfolio and its market penetration. The Company's fee development
business has been, and is expected to continue to be, a recurring source of
revenue.
In addition, the Company continues to explore various avenues to provide
tenants with additional services, including providing equipment leasing services
through joint ventures with capital equipment providers, obtaining cooperative
energy purchases for tenants and making other commodities and services available
to tenants. By providing value-added services to its tenants, the Company
enhances its brand name and further develops its franchise.
THE COMPANY'S MARKET AREA: GREATER CHICAGO
The Company's target market is Greater Chicago (the region within a
150-mile radius of the City of Chicago, including Milwaukee, Wisconsin and South
Bend, Indiana), although the Company may in certain instances consider the
development of warehouse/industrial properties in other areas (for example, a
readily salable building, fully-leased to a creditworthy tenant). Greater
Chicago lies at the center of one of the nation's principal population and
production regions and, as a consequence, has become a major
warehouse/industrial market. Management believes that the size, location,
transportation and demographic advantages, tenant diversity, favorable growth
trends and real estate market conditions of its target market will support
continued leasing and acquisition activity, enhancing the Company's growth in
per share distributable cash flow.
Besides market activity from in-migration and firm expansion, a
consistently high level of industrial real estate activity results from the
changing space needs of individual industries and because different industries
move in different cycles. The Greater Chicago region's continuous activity
enables the Company to produce consistently high cash flow because the Company
invests in and operates "generic" real estate, suitable for multiple industries,
and the Company is highly skilled in "value-added" investing, acquiring and
re-adapting space for disparate uses.
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LOCATION, TRANSPORTATION AND DEMOGRAPHIC ADVANTAGES
Greater Chicago encompasses over 1.2 billion square feet of
warehouse/industrial property, making the area the largest warehouse/industrial
market in the United States. The Greater Chicago market is comprised of 19
discreet geographic submarkets, many of which would independently rank among the
nation's largest (Source: Torto Wheaton Research) and in most of which the
Company owns warehouse/industrial properties. The area has achieved its
prominence as a manufacturing and distribution center as a result of its central
continental location and extensive air, roadway, rail and water transportation
infrastructure connecting the Greater Chicago area with a contiguous 13-state
region consisting of Illinois, Wisconsin, Michigan, Ohio, Pennsylvania, West
Virginia, Tennessee, Kentucky, Indiana, Missouri, Iowa, Nebraska and Minnesota.
The latest census report issued by the United States Department of Commerce
reported that this 13-state region accounted for $1.6 trillion in gross product
(representing approximately one-third of the nation's economic activity),
produced by 1.8 million industrial and commercial firms serving a residential
population of approximately 78 million residents. Published census data
indicate that Greater Chicago is the dominant economic, work and population
center of this region as the home to over eight million residents and over
59,000 diverse industrial and commercial firms. The diversity of Greater
Chicago business provides the Company the opportunity to capitalize on different
trends affecting real estate demand and usage by different manufacturers and
wholesalers. The diversity of business also reduces the Company's exposure to
changes in the fortunes of any single type of business.
ECONOMIC AND EMPLOYMENT TRENDS
Current manufacturing, productivity, business investment, capacity
utilization, and employment trends in the Midwest region of the U.S. and in
Greater Chicago are positive. The Midwest Manufacturing Index for the Midwest
region, as published by the Federal Reserve Bank of Chicago, has been steadily
expanding since 1991. The Midwest region has also recorded increases in
manufacturing and wholesale employment and has exceeded the rates of growth of
the United States as a whole. Management believes that these trends are
favorable indicators of growth in the warehouse/industrial property market. The
Greater Chicago area is the largest job market in the nation.
WAREHOUSE/INDUSTRIAL DEMAND AND SUPPLY
Historically, occupancy rates in Greater Chicago have demonstrated a high
degree of stability. Over the last seventeen years, occupancy rates for the
Greater Chicago region have exceeded the national average by 1.45%, with an
average occupancy rate of nearly 94% (Source: CBC/Torto Wheaton Research). The
region's annual absorption from 1994 to 1997 averaged approximately 40 million
square feet (Source: CB Commercial).
During 1997, Greater Chicago's industrial property market added 13.1
million square feet, and gross regional absorption was approximately 45 million
square feet. According to CB Commercial, in the fourth quarter of 1997 the
overall nominal industrial vacancy rate in the Greater Chicago area was 6.9%, an
increase of 30 basis points from the third quarter. However, the effective
vacancy rate (net of obsolete and environmentally tainted properties) remained
less than 5% overall. This increase in vacancy was primarily due to speculative
construction in two Illinois submarkets which the Company has consistently
avoided based on its prediction of a demand/supply imbalance in those
submarkets.
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TRANSACTIONS DURING 1997
During 1997, the Company accomplished the following:
1997 ACQUISITIONS AND DISPOSITIONS
During 1997, the Company acquired or completed development of 27
warehouse/industrial properties totaling 8.7 million square feet at a total cost
of approximately $190.6 million, including the acquisition of a 1.75 million
square foot facility in McCook, Illinois from General Motors, the largest single
acquisition in the history of the Chicago industrial property market, a 1.1
million square foot facility in Aurora, Illinois, an 888,335 square foot
facility in Elk Grove, Village, Illinois and an 812,000 square foot
build-to-suit warehouse in Granite City, Illinois for the Dial Corporation, the
largest development of any type begun in the State of Illinois in 1997. Also in
1997, the Company disposed of two warehouse/industrial properties and one office
building totaling approximately 201,318 square feet for approximately $12.6
million.
1997 Securities Offerings
- On March 6, 1997, the Company completed a public offering of 2,250,000
common shares at $31.50 per share under a shelf registration
statement. Net proceeds from the offering after the underwriting
discounts and other offering costs were approximately $66.8 million.
The proceeds of the offering were used to repay approximately $58.2
million outstanding under the Company's unsecured revolving line of
credit co-led by The First National Bank of Chicago and Lehman
Brothers Holdings Inc. with the balance of $8.6 million to fund
investments.
- On November 10, 1997, the Company completed a public offering of
3,000,000 8.48% Series A Cumulative Redeemable Preferred Shares of
Beneficial Interest, Liquidation Preference $25.00 per share, at
$25.00 per share, under the Company's shelf registration statement, as
amended, which was declared effective on October 23, 1997. Net
proceeds from the offering after underwriting discounts were
approximately $72.7 million. All of the proceeds from the offering
were used to repay amounts outstanding under the Company's unsecured
revolving credit facility co-led by The First National Bank of Chicago
and Lehman Brothers Holdings Inc.
1997 FINANCINGS
- On September 18, 1997, the Company completed a $55 million tax-exempt
bond financing for the development of the Company's O'Hare Express air
freight center. The complex is a 825,000 square foot air freight
forwarding and warehouse facility, anticipated to be constructed in
three phases over a three-year period by CenterPoint O'Hare L.L.C., a
subsidiary of the Company. The unsecured bonds were issued at par,
bearing an initial interest rate of 4%.
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- On November 13, 1997, the Company amended its existing unsecured
revolving credit facility co-led by The First National Bank of Chicago
and Lehman Brothers Holdings Inc. to, among other things, increase the
principal amount available under the line from $135 million to $150
million and provide the Company with a competitive bid option under
the line. The interest rate on borrowings under the unsecured credit
facility adjusts based on the Company's senior debt ratings. The
current interest rate is LIBOR plus 80 basis points for LIBOR
borrowings and prime rate for other borrowings.
REORGANIZATION
On October 15, 1997, the Company completed a reorganization pursuant to
which it converted from a Maryland corporation to a Maryland real estate
investment trust by means of a merger of CenterPoint Properties Corporation (the
"Corporation") with and into the Company, which prior to the merger was a
wholly-owned subsidiary of the Corporation, with the Company as the surviving
entity. Pursuant to a Plan of Reorganization, which was approved by the
stockholders of the Corporation at a Special Meeting of Stockholders held on
October 1, 1997, each issued and outstanding share of common stock of the
corporation, par value $.001 per share (the "Common Stock"), was converted into
one common share of beneficial interest in the Company, par value $.001 per
share (the "Common Shares"), each outstanding share of Class B common stock of
the Corporation was converted into one Class B common share of beneficial
interest in the Company; and the outstanding principal amount of the
Corporation's 8.22% Convertible Subordinated Debentures due 2004 was assumed by
the Company and converted into the same principal amount of 8.22% Convertible
Subordinated Debentures due 2004 of the Company (the "Company Debentures"). The
Common Shares and the Company Debentures currently trade on the NYSE in the same
manner as the Common Stock and debentures of the Corporation, respectively,
traded on the NYSE prior to consummation of the merger.
EMPLOYEES
At March 1, 1998, the Company had 125 full-time and 30 part-time employees.
Of the full-time employees, 107 are involved with property management,
operations, leasing and acquisition activities, 8 are involved with general
financial administration, financing services, reporting and acquisition
analysis, and 10 are clerical workers. All property management activities are
currently provided by the Company's employees. The Company does not intend to
enter into any agreement with any entity or person relating to such services.
However, the Company's Declaration of Trust does not contain any prohibition on
the use of third parties to perform such services, and such services may
therefore be performed by third parties in the future.
-9-
<PAGE>
ENVIRONMENTAL MATTERS
Under the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended ("CERCLA"), as well as similar state and local laws,
owners and operators of property, both past and present, may be held financially
responsible for the investigation and, if appropriate, the remediation of
releases or threatened releases of hazardous substances into the environment.
Other parties who arranged for the disposal of hazardous substances or
transported hazardous substances for disposal at a property also may be held
liable. Liability under CERCLA and similar laws is strict, joint and several
unless a legally and factually sufficient basis for apportionment is
demonstrated and in most instances, liability may be imposed without regard to
the party's culpability concerning the presence of hazardous substances at the
property. Potentially responsible parties may be liable to one another, the
government and under some circumstances, third parties.
To the extent the Company in the future may incur hazardous substance
response costs in connection with any of its properties, the Company may seek to
recover such costs from responsible parties under CERCLA. Costs recoverable
under CERCLA must be incurred in a manner consistent with the National
Contingency Plan. The National Contingency Plan establishes a procedure whereby
contaminated properties may be identified and, if necessary, remediated. If
remediation is conducted in the appropriate manner, the costs that may be
recovered include but may not be limited to funds expended to investigate and to
remediate hazardous substance releases. Costs associated with any such
environmental activity may be substantial.
All of the Company's existing properties have been, and all properties the
Company may acquire in the future will be, subjected to an ASTM Phase I and or
similar environmental assessment. The purpose of a Phase I environmental
assessment is to determine if past and present uses of a property indicate the
potential for soil or groundwater contamination or if other environmental
conditions might affect the value of or future uses of the property. Phase I
environmental assessments generally include the following: visual inspection of
environmental conditions at and around the property; review of available land
use records; interviews with the property representatives; examination of
publicly available information from environmental agencies; and a walk through
survey for suspected asbestos containing or other toxic materials. Where a
Phase I environmental assessment of a property indicates a need for further
investigation, the Company commissions a more detailed Phase II environmental
assessment.
Apart from certain conditions currently being remedied, as described below,
the Phase I and Phase II environmental assessment reports have not revealed any
environmental condition affecting any of the Company's existing properties or
any properties under binding contract that the Company believes requires
remediation that would have a material adverse effect on the Company's business
or assets, nor is the Company aware of any such environmental condition. The
Company believes that either the properties are in compliance or the remediation
activities are in compliance in all material respects with applicable Federal,
state and local laws, ordinances and regulations concerning the presence of
hazardous substances. The Company has not been notified by any governmental
authority, and is not otherwise aware, of any material noncompliance, liability
or claim relating to hazardous substances in connection with any of its
properties. Based on its current knowledge and currently applicable laws and
regulations, the Company is aware of the following environmental issues, none of
which the Company believes are material to its financial condition:
1. Certain remediation activities are currently being conducted at
Great Lakes Industrial Center by Neo Industries, a previous tenant, which
is investigating chromium releases from its plating operations and is
currently remediating the chromium contamination in the soil
-10-
<PAGE>
and the groundwater. The Company does not expect to incur any remediation
costs with respect to this property.
2. The former owner/operator of one property, 1700 West Hawthorne
Lane, West Chicago, Illinois, has removed various underground and
above-ground storage tanks and performed remediation of releases from these
tanks where necessary. Closure reports have been or are being submitted by
the former owner/operator for each tank removal. The Company expects to
receive Illinois Environmental Protection Agency ("IEPA") closure
certification for each tank from the former owner/operator in due course.
3. The former owner/operator of one property, the Allsteel facility
in Montgomery, Illinois, has closed seven underground storage tanks
associated with former operations and is currently remediating
solvent-contaminated soil and groundwater. The IEPA is supervising the
remedial activities, and the Company expects to receive a No Further
Remediation letter from the IEPA once the remediation is complete. The
Company does not expect to incur any remediation costs in connection with
this property because both the former owner/operator and the former
owner/operator's parent company have agreed to (1) perform the remediation,
and (2) indemnify the Company against any losses.
4. The Company is currently remediating one property located at 5700
West Touhy in Niles, Illinois. This property has limited petroleum and
metals contamination associated with the manufacturing and storage
activities of the prior owner. The IEPA is supervising the remedial
activities, and the Company expects to receive a No Further Remediation
letter from the IEPA once the remediation is complete.
5. Certain of the properties are in the vicinity of properties that
contain or have contained storage tanks or on which hazardous substances or
petroleum products have been or may in the future be used or stored. Based
on the Phase I and, in some cases, additional environmental assessments
conducted with respect to its properties, the Company is not aware that
these conditions have had, and believes it unlikely that these conditions
will have, any adverse effect on its properties. Should there be any
adverse effect requiring response by the Company, the Company believes that
it may be able to recover its response costs from the responsible parties.
6. Limited quantities of asbestos containing materials ("ACM") are
present in various building materials at many of the Company's properties.
The ACM present at the properties generally is in good condition and for
the most part is non-friable. The Company has implemented an operation and
maintenance plan for ACM, including periodic inspections. This plan
includes removal and abatement activity whenever damaged ACM is discovered
in areas where human exposure may occur. It also includes an annual ACM
abatement program and ACM abatement during property renovation or
reconstruction.
It is possible that the environmental assessments of the Company's
properties do not reveal all environmental liability concerns or that there are
material environmental liabilities of which the Company is unaware. Given the
nature of the properties that are now owned by the Company or that may be
acquired in the future, no assurances can be given that (i) future laws,
ordinances or regulations will not require or impose any material expenditures
or liabilities in connection with environmental conditions by or on the Company
or its properties; (ii) the current environmental condition of the Company's
properties will not be affected by tenants and occupants of such properties, by
the condition of properties in the vicinity of such properties or by third
parties unrelated to the Company; and (iii) prior owners of any of the Company's
-11-
<PAGE>
properties did not create environmental problems of which the Company is not
aware.
COMPETITION
All of the Company's existing properties are, and all of the properties
that it may acquire in the future are expected to be, located in areas that
include numerous other warehouse/industrial properties, many of which may be
deemed to be more suitable to a potential tenant than the Company's properties.
The resulting competition could have a material adverse effect on the Company's
ability to lease its properties and to increase the rentals charged on existing
leases.
INVESTMENT IN AND ADVANCES TO AFFILIATE
The Company holds approximately 99% of the economic interest in CenterPoint
Realty Services Corporation, an Illinois corporation ("CRS"). To maintain
compliance with limitations on income from business activities received by REITs
and their qualified REIT subsidiaries, the Company holds its interest in CRS in
the form of non-voting equity ownership which qualifies CRS as an unconsolidated
taxable subsidiary.
As of December 31, 1997, the Company had advanced to CRS approximately $7.9
million under a demand loan with an interest rate of 8.125%. The proceeds of
the loan were used for development projects. Principal and interest are due
upon demand.
ITEM 2. PROPERTIES.
THE COMPANY'S WAREHOUSE/INDUSTRIAL PROPERTIES
The Company's investment portfolio of warehouse/industrial properties
consists of 95 properties totaling approximately 22.1 million square feet.
During 1997, the Company acquired 21 fully-leased warehouse/industrial
properties and completed the construction of 6 fully leased warehouse/industrial
build-to-suit properties with a total area of approximately 8.7 million square
feet, and the Company disposed of 2 warehouse/industrial properties with a total
area of approximately 43,500 square feet.
LOCATION. The Company's current properties are well located, with
convenient access to area interstate highway, rail, and air transportation. The
properties are in good physical condition, most of them having been built or
substantially renovated within the last 10 years.
BUILDING CHARACTERISTICS. Most of the space in the warehouse/industrial
properties currently owned by the Company or under contract has been designed
for warehousing and distribution. The remainder of the space is comprised of
light manufacturing space. A number of the industrial properties include both
distribution and light manufacturing space so as to provide tenants with
increased flexibility. The Company's largest industrial property contains
approximately 1,700,000 rentable square feet in a single-tenant warehousing and
manufacturing property, available for redevelopment into a multi-tenant
warehouse/industrial complex. The Company's present warehouse/industrial
properties have an average project size of approximately 232,123 square feet,
and, on average, a tenant at an industrial property occupies approximately
319,000 rentable square feet. Although a number of the industrial properties are
single-tenant build-to-suit facilities, all are designed to be divisible and to
be leased by multiple tenants. The Company has had substantial experience in
subdividing older space for new tenants.
The Company's present warehousing and distribution properties, as well as
warehousing and
-12-
<PAGE>
distribution properties under contract, are designed for bulk storage of
materials and manufactured goods in buildings with interior heights typically of
22 feet or more. All of the warehousing and distribution properties have dock
facilities for trucks as well as grade level loading for lighter vehicles and
vans. Typically, the distribution buildings are used for storage and contain a
minimal amount of office space.
LEASE CHARACTERISTICS. The Company believes that the lease agreements for
its warehouse/industrial properties, which in most cases provide for scheduled
or indexed increases in rent, as well as the strengthening economy, will provide
opportunities for rental growth. The Company, in substantially all cases, passes
operating expenses and real estate tax increases on to tenants. The leases for
the warehouse/industrial properties currently owned by the Company have terms
between one and 5 years, with a weighted average remaining term, based on square
footage, of approximately 4.14 years as of December 31, 1997.
TENANT DIVERSITY. The composition of tenants in the warehouse/industrial
properties currently owned by the Company reflects the commercial diversity of
businesses operating in Greater Chicago. At December 31, 1997, no single
industry, other than Wholesale Trade-Durable Goods and Trucking/Warehousing,
accounted for more than 10.8% of the leased space in the warehouse/industrial
properties currently owned by the Company. Wholesale Trade-Durable Goods and
Trucking/Warehousing, which encompass a wide variety of industries, accounted
for 27.2% of the leased space in the warehouse/industrial properties currently
owned by the Company at December 31, 1997, and the five largest industries,
other than Wholesale Trade-Durable Goods and Trucking/Warehousing, represented
by tenants accounted collectively for only 35.6% of such space. In addition, no
single tenant comprised more than 5% of the Company's total revenues as of
December 31, 1997.
OTHER INFORMATION REGARDING WAREHOUSE/INDUSTRIAL PROPERTIES. The following
table sets forth certain information regarding the Company's portfolio of
warehouse/industrial properties, separately identifying 1997 investments of the
Company:
-13-
<PAGE>
CENTERPOINT PROPERTIES TRUST
PROPERTY SUMMARY
AS OF DECEMBER 31, 1997
<TABLE>
<CAPTION>
YEAR OF ORIGINAL
CONSTRUCTION/LAST ANNUALIZED AVERAGE
REDEVELOPMENT AND/OR BASE RENT RENT PER GLA
1997 INVESTMENTS CITY STATE EXPANSION (1) REVENUE SQ. FT. (2) SQ. FT. (3)
---------------- ---- ----- -------------------- ---------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C>
LAKE COUNTY
3145 Central Avenue(6) Waukegan IL 1958 $ 990,000 $ 3.30 300,000
N.E. COOK COUNTY
5700 West Touhy Avenue Niles IL 1948 0 0 910,760
CHICAGO O'HARE AREA
O'Hare Express-Phase A-2 Chicago IL 1997 1,070,090 8.85 120,971
O'Hare Express-Phase B-1 Chicago IL 1997 2,068,590 12.05 171,685
110-190 Old Higgins Road Des Plaines IL 1980 1,256,784 10.45 120,292
1796 Sherwin Des Plaines IL 1964 600,211 6.30 95,220
2525 Busse Road Elk Grove Village IL 1975 2,817,353 3.17 888,335
2701-2781 Busse Road Elk Grove Village IL 1997 1,180,716 4.70 251,076
2801-2881 Busse Road Elk Grove Village IL 1997 1,112,802 4.43 251,076
1951 Landmeier Elk Grove Village IL 1967 203,880 4.86 41,976
WEST SUBURBS
2901 Centre Circle (7) Downers Grove IL 1979 148,764 7.07 21,056
FAR WEST SUBURBS
1 Allsteel Drive (7) Aurora IL 1960 2,729,435 2.71 1,008,120
2727 West Diehl Road Naperville IL 1997 1,836,240 4.17 440,343
2885 West Diehl Road Naperville IL 1997 1,145,928 3.80 301,560
SOUTHWEST SUBURBS
7447 South Central Avenue Bedford Park IL 1975 275,842 2.33 118,218
7400 S. Narragansett Ave (6) Bedford Park IL 1976 515,424 2.95 174,720
6751-55 South Sayre Avenue Bedford Park IL 1974 746,378 3.08 242,690
7525 South Sayre Bedford Park IL 1981 386,577 3.14 123,178
6464 West 51st Street Forest View IL 1973 736,040 3.53 208,713
6500 West 51st Street Forest View IL 1975 500,297 2.70 185,295
9301 W. 55th Street (6) McCook IL 1979 1,620,000 0.95 1,700,000
FAR S.W. SUBURBS
2301 North Route 30 Plainfield IL 1972 815,625 2.89 282,679
1355 Enterprise Drive (6) Romeoville IL 1980 354,123 2.90 122,100
CHICAGO SOUTH
3133 East 106th (6) Chicago IL 1971 300,285 3.75 80,076
MILWAUKEE COUNTY
1475 S. 101st West Allis WI 1969 188,832 4.02 46,973
2003-2201 S. 114th Street West Allis WI 1965 628,380 2.58 243,350
RACINE COUNTY
1333 Grandview Drive Yorkville WI 1994 796,572 3.79 210,000
---------- ---------
SUBTOTAL 25,025,168 8,660,462
AVERAGE ---------- ---------
2.89(9) 320,758(10)
---- ---------
PERCENT
PERCENT OF GLA
OF TOTAL LEASED AS NO. OF PROPERTY
1997 INVESTMENTS GLA (4) OF 12/31/97 TENANTS TYPE(5)
---------------- -------- ------------ -------- ----------
<C> <C> <C> <C> <C>
LAKE COUNTY
3145 Central Avenue(6) 1.36% 100% 2 ACQ
N.E. COOK COUNTY
5700 West Touhy Avenue 4.13% 100% 1 RDV
CHICAGO O'HARE AREA
O'Hare Express-Phase A-2 0.55% 100% 2 BTS
O'Hare Express-Phase B-1 0.78% 100% 1 BTS
110-190 Old Higgins Road 0.55% 100% 9 ACQ
1796 Sherwin 0.43% 100% 2 ACQ
2525 Busse Road 4.03% 100% 5 ACQ
2701-2781 Busse Road 1.14% 100% 2 BTS
2801-2881 Busse Road 1.14% 100% 2 BTS
1951 Landmeier 0.19% 100% 2 ACQ
WEST SUBURBS
2901 Centre Circle (7) 0.09% 100% 1 ACQ
FAR WEST SUBURBS
1 Allsteel Drive (7) 4.57% 100% 2 ACQ
2727 West Diehl Road 2.00% 100% 1 BTS
2885 West Diehl Road 1.37% 100% 1 BTS
SOUTHWEST SUBURBS
7447 South Central Avenue 0.54% 100% 1 ACQ
7400 S. Narragansett Ave (6) 0.79% 100% 1 ACQ
6751-55 South Sayre Avenue 1.10% 100% 2 ACQ
7525 South Sayre 0.56% 100% 2 ACQ
6464 West 51st Street 0.95% 100% 4 ACQ
6500 West 51st Street 0.84% 100% 1 ACQ
9301 W. 55th Street (6) 7.71% 100% 1 RDV
FAR S.W. SUBURBS
2301 North Route 30 1.28% 100% 1 ACQ
1355 Enterprise Drive (6) 0.55% 100% 1 ACQ
CHICAGO SOUTH
3133 East 106th (6) 0.36% 100% 1 ACQ
MILWAUKEE COUNTY
1475 S. 101st 0.21% 100% 1 ACQ
2003-2201 S. 114th Street 1.10% 100% 2 ACQ
RACINE COUNTY
1333 Grandview Drive 0.95% 100% 1 ACQ
SUBTOTAL 39.27%
-----
AVERAGE 1.45%
-----
-14-
<PAGE>
YEAR OF ORIGINAL
CONSTRUCTION/LAST ANNUALIZED AVERAGE
REDEVELOPMENT AND/OR BASE RENT RENT PER GLA
PREVIOUSLY OWNED PROPERTIES CITY STATE EXPANSION (1) REVENUE SQ. FT. (2) SQ. FT. (3)
- --------------------------- ----- ----- -------------------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C>
LAKE COUNTY
911 Commerce (6) Buffalo Grove IL 1993 703,636 5.96 118,009
1800 Industrial Drive Libertyville IL 1992/1994 1,079,292 6.16 175,196
1810-1820 Industrial Drive Libertyville IL 1977 256,700 3.02 85,000
1 Wildlife Way Long Grove IL 1994 665,068 12.29 54,100
620-630 Butterfield Road Mundelein IL 1990 297,680 12.28 24,237
1700 Butterfield Road Mundelein IL 1976 229,750 3.83 60,000
950-970 Tower Road Mundelein IL 1979-1990 90,861 2.37 38,359
2339-41 Ernie Krueger Court Waukegan IL 1990/1993 223,245 4.10 54,450
1300 Northpoint Road Waukegan IL 1994 310,409 4.78 65,000
N.E. COOK COUNTY
5990 Touhy Avenue Niles IL 1960/1993 1,502,864 5.08 295,964
N.W. COOK COUNTY
1500 West Dundee Road (6) Arlington Heights IL 1969 1,463,525 2.93 500,000
900 W. University Drive Arlington Heights IL 1974 501,083 5.81 86,254
1015 East State Parkway Schaumburg IL 1980 132,330 6.76 19,576
N. KANE COUNTY
825 Tollgate Road Elgin IL 1989 424,988 5.11 83,122
CHICAGO O'HARE AREA
745 Birginal Road Bensenville IL 1974 378,875 3.35 113,266
2743 Armstrong Court Des Plaines IL 1989 314,178 5.89 53,325
850 Arthur Avenue (8) Elk Grove Village IL 1971/1973 250,717 5.90 42,490
1400 Busse Road Elk Grove Village IL 1975 347,038 2.34 148,436
800 Chase Avenue (6) Elk Grove Village IL 1972 1,182,792 3.46 341,848
1100 Chase Avenue (7) Elk Grove Village IL 1980/1996 176,618 4.24 41,651
2600 Elmhurst Road Elk Grove Village IL 1995 521,170 4.96 105,000
875 Fargo Avenue Elk Grove Village IL 1980 345,946 4.20 82,368
1850 Greenleaf Elk Grove Village IL 1965 233,280 3.98 58,627
1201 Lunt Avenue Elk Grove Village IL 1971 47,820 6.48 7,380
1501 Pratt Avenue Elk Grove Village IL 1973 600,573 3.95 151,900
1520 Pratt Avenue Elk Grove Village IL 1968 243,148 3.89 62,546
10601 Seymour Avenue (6) Franklin Park IL 1963/1970 0 0 677,000
2553 North Edgington Franklin Park IL 1967/1995 1,376,770 5.02 274,303
10740 West Grand Avenue (7) Franklin Park IL 1965/1971 247,175 3.75 66,000
1800 Bruning Drive Itasca IL 1975/1978 1,115,617 5.52 202,000
245 Beinoris Drive Wood Dale IL 1988/1993 85,776 7.15 11,989
PERCENT
PERCENT OF GLA
OF TOTAL LEASED AS NO. OF PROPERTY
PREVIOUSLY OWNED PROPERTIES GLA (4) OF 12/31/97 TENANTS TYPE(5)
- --------------------------- -------- ----------- -------- ---------
<C> <C> <C> <C> <C>
LAKE COUNTY
911 Commerce (6) 0.54% 100% 2 ACQ
1800 Industrial Drive 0.79% 100% 1 ACQ
1810-1820 Industrial Drive 0.39% 100% 1 ACQ
1 Wildlife Way 0.25% 100% 1 RDV
620-630 Butterfield Road 0.11% 90% 1 BTS
1700 Butterfield Road 0.27% 100% 1 ACQ
950-970 Tower Road 0.17% 100% 3 BTS
2339-41 Ernie Krueger Court 0.25% 100% 1 BTS
1300 Northpoint Road 0.29% 100% 1 ACQ
N.E. COOK COUNTY
5990 Touhy Avenue 1.34% 100% 3 RDV
N.W. COOK COUNTY
1500 West Dundee Road (6) 2.27% 100% 2 ACQ
900 W. University Drive 0.39% 100% 1 ACQ
1015 East State Parkway 0.09% 0% 0 ACQ
N. KANE COUNTY
825 Tollgate Road 0.38% 100% 2 ACQ
CHICAGO O'HARE AREA
745 Birginal Road 0.51% 0% 0 ACQ
2743 Armstrong Court 0.24% 0% 0 BTS
850 Arthur Avenue (8) 0.19% 100% 1 ACQ
1400 Busse Road 0.67% 90% 10 ACQ
800 Chase Avenue (6) 1.55% 0% 0 ACQ
1100 Chase Avenue (7) 0.19% 100% 1 ACQ
2600 Elmhurst Road 0.48% 100% 1 BTS
875 Fargo Avenue 0.37% 100% 1 ACQ
1850 Greenleaf 0.27% 100% 1 ACQ
1201 Lunt Avenue 0.03% 100% 1 ACQ
1501 Pratt Avenue 0.69% 100% 2 ACQ
1520 Pratt Avenue 0.28% 100% 1 ACQ
10601 Seymour Avenue (6) 3.07% 0% 0 ACQ/RDV
2553 North Edgington 1.24% 100% 4 ACQ
10740 West Grand Avenue (7) 0.30% 100% 1 ACQ
1800 Bruning Drive 0.92% 100% 1 ACQ
245 Beinoris Drive 0.05% 100% 1 BTS/RDV
-15-
<PAGE>
<CAPTION>
YEAR OF ORIGINAL
CONSTRUCTION/LAST ANNUALIZED AVERAGE
REDEVELOPMENT AND/OR BASE RENT RENT PER GLA
PREVIOUSLY OWNED PROPERTIES CITY STATE EXPANSION (1) REVENUE SQ. FT. (2) SQ. FT. (3)
- --------------------------- --------- ----- --------------------- --------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C>
CHICAGO NORTH
4501 West Augusta Boulevard Chicago IL 1942/1989 748,070 1.73 432,661
N.W. SUBURBS
400 North Wolf Road Northlake IL 1956/1997 4,319,091 2.83 1,527,593
CENTRAL KANE/N. DUPAGE
425 South 37th Avenue (7) St. Charles IL 1975 399,309 3.87 103,106
1250 Carolina Drive West Chicago IL 1988 572,325 3.82 150,000
1645 Downs Drive West Chicago IL 1975 361,008 2.79 129,390
1733 Downs Drive West Chicago IL 1975 363,816 2.50 145,528
825-845 Hawthorne Lane (6) West Chicago IL 1974 639,499 4.03 158,772
1700 West Hawthorne (6) West Chicago IL 1959/1969 1,381,800 1.88 735,196
FAR WEST SUBURBS
800 Enterprise Court Naperville IL 1985 183,666 5.25 34,984
720 Frontenac Naperville IL 1991 537,560 3.13 171,935
820 Frontenac Naperville IL 1988 645,137 4.20 153,604
920 Frontenac Naperville IL 1987 402,829 3.32 121,200
1020 Frontenac Naperville IL 1980 441,750 4.43 99,684
1120 Frontenac Naperville IL 1980/1994 543,639 3.53 153,902
1510 Frontenac Naperville IL 1986 281,331 2.68 104,886
1560 Frontenac Naperville IL 1987 298,280 3.48 85,608
1651 Frontenac Naperville IL 1978 120,135 3.95 30,414
2764 Golfview Naperville IL 1985 99,420 4.97 20,022
1500 Shore Drive Naperville IL 1985 165,932 3.84 43,230
1150 Shore Road Naperville IL 1985 174,888 5.79 30,184
SOUTHWEST SUBURBS
6600 River Road Hodgkins IL 1968 1,398,000 2.22 630,410
FAR S.W. SUBURBS
16400 West 103rd Street (7) Lemont IL 1983/1995 278,939 4.39 63,612
1319 Marquette Drive Romeoville IL 1990 392,206 10.79 36,349
7001 Adams Street Willowbrook IL 1994 192,716 7.61 25,324
CHICAGO SOUTH
4400 South Kolmar (6) Chicago IL 1966 438,840 4.77 92,000
900 East 103rd Street Chicago IL 1910/1990 1,967,449 3.42 575,462
750 East 110th Street Chicago IL 1966 237,972 3.33 71,510
SOUTH SUBURBS
11601 South Central Avenue Alsip IL 1970 894,834 3.45 259,000
11701 South Central Avenue Alsip IL 1970 870,000 2.93 297,207
5619-25 West 115th Street Alsip IL 1974 1,847,819 4.65 396,979
21399 Torrence Avenue Sauk Village IL 1987 745,164 2.00 372,835
N.W. INDIANA
425 West 151st Street East Chicago IN 1913/1991 1,328,038 3.80 349,236
201 Mississippi Street Gary IN 1945/1988 3,651,848 3.47 1,052,173
1827 North Bendix Drive (6) South Bend IN 1964/1990 554,580 2.78 199,730
PERCENT
PERCENT OF GLA
OF TOTAL LEASED AS NO. OF PROPERTY
PREVIOUSLY OWNED PROPERTIES GLA (4) OF 12/31/97 TENANTS TYPE(5)
- --------------------------- -------- ----------- ------- ---------
<C> <C> <C> <C> <C>
CHICAGO NORTH
4501 West Augusta Boulevard 1.96% 95% 7 RDV
N.W. SUBURBS
400 North Wolf Road 6.93% 100% 4 ACQ
CENTRAL KANE/N. DUPAGE
425 South 37th Avenue (7) 0.47% 100% 1 ACQ
1250 Carolina Drive 0.68% 100% 2 BTS
1645 Downs Drive 0.59% 100% 1 ACQ
1733 Downs Drive 0.66% 100% 1 ACQ
825-845 Hawthorne Lane (6) 0.72% 83% 3 ACQ
1700 West Hawthorne (6) 3.33% 100% 1 ACQ
FAR WEST SUBURBS
800 Enterprise Court 0.16% 100% 1 ACQ
720 Frontenac 0.78% 100% 2 ACQ
820 Frontenac 0.70% 100% 1 ACQ
920 Frontenac 0.55% 100% 1 ACQ
1020 Frontenac 0.45% 100% 1 ACQ
1120 Frontenac 0.70% 100% 1 ACQ
1510 Frontenac 0.48% 100% 1 ACQ
1560 Frontenac 0.39% 100% 2 ACQ
1651 Frontenac 0.14% 100% 1 ACQ
2764 Golfview 0.09% 100% 1 ACQ
1500 Shore Drive 0.20% 100% 2 ACQ
1150 Shore Road 0.14% 100% 1 ACQ
SOUTHWEST SUBURBS
6600 River Road 2.86% 100% 1 ACQ
FAR S.W. SUBURBS
16400 West 103rd Street (7) 0.29% 100% 1 ACQ
1319 Marquette Drive 0.16% 100% 1 BTS
7001 Adams Street 0.11% 100% 1 BTS
CHICAGO SOUTH
4400 South Kolmar (6) 0.42% 100% 1 ACQ
900 East 103rd Street 2.61% 100% 3 RDV
750 East 110th Street 0.32% 100% 1 ACQ/RDV
SOUTH SUBURBS
11601 South Central Avenue 1.18% 100% 1 ACQ
11701 South Central Avenue 1.35% 100% 1 ACQ
5619-25 West 115th Street 1.80% 98% 5 RDV
21399 Torrence Avenue 1.69% 100% 1 ACQ
N.W. INDIANA
425 West 151st Street 1.58% 97% 9 RDV
201 Mississippi Street 4.77% 97% 15 RDV
1827 North Bendix Drive (6) 0.91% 100% 1 ACQ
-16-
<PAGE>
YEAR OF ORIGINAL
CONSTRUCTION/LAST ANNUALIZED AVERAGE
REDEVELOPMENT AND/OR BASE RENT RENT PER GLA
PREVIOUSLY OWNED PROPERTIES CITY STATE EXPANSION (1) REVENUE SQ. FT. (2) SQ. FT. (3)
- --------------------------- ----- ----- -------------------- ---------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C>
MILWAUKEE COUNTY
7501 North 81st Street Milwaukee WI 1987 576,000 3.13 183,958
KENOSHA COUNTY
8200 100th Street Pleasant Prairie WI 1990 568,361 3.83 148,472
8901 102nd Street Pleasant Prairie WI 1990 643,018 6.09 105,637
----------- ----- ----------
SUBTOTAL 44,614,193 3.33 13,391.189
----------- ----- ----------
AVERAGE 196,929(10)
- ----------
GRAND TOTAL ALL WAREHOUSE/INDUSTRIAL PROPERTIES $69,639,361 22,051,651
----------- ----------
AVERAGE ALL WAREHOUSE/INDUSTRIAL PROPERTIES $3.16(9) 232,123(10)
----------- ----- ----------
GRAND TOTAL ALL WAREHOUSE/INDUSTRIAL PROPERTIES
EXCLUDING REDEVELOPMENTS AT 12/31/97 $69,639,361 20,463,891
----------- ----------
AVERAGE ALL WAREHOUSE/INDUSTRIAL PROPERTIES $3.40(9) 220,042(10)
----- ----------
PERCENT
PERCENT OF GLA
OF TOTAL LEASED AS NO. OF PROPERTY
PREVIOUSLY OWNED PROPERTIES GLA (4) OF 12/31/97 TENANTS TYPE(5)
- --------------------------- -------- ----------- ------- ---------
<C> <C> <C> <C> <C>
MILWAUKEE COUNTY
7501 North 81st Street 0.83% 100% 1 ACQ
KENOSHA COUNTY
8200 100th Street 0.67% 100% 1 ACQ
8901 102nd Street 0.48% 100% 1 ACQ
------
SUBTOTAL 60.73%
------
AVERAGE 0.89%
------
GRAND TOTAL ALL WAREHOUSE/INDUSTRIAL PROPERTIES 100% 178
------
AVERAGE ALL WAREHOUSE/INDUSTRIAL PROPERTIES 94%
GRAND TOTAL ALL WAREHOUSE/INDUSTRIAL PROPERTIES 97%
EXCLUDING REDEVELOPMENTS AT 12/31/97
AVERAGE ALL WAREHOUSE/INDUSTRIAL PROPERTIES
</TABLE>
-17-
<PAGE>
- ------------------
(1) First date of original construction; second date is year of last
redevelopment and/or expansion. If only one date appears, it is the
acquisition date; the property has not been redeveloped or expanded.
(2) Determined by dividing annualized base rent revenue by GLA.
(3) "GLA" means gross leasable area.
(4) Determined as a percent of the total GLA for the warehouse/industrial
properties.
(5) ACQ refers to an existing leased property acquired by the Company, BTS
refers to a build-to-suit property and RDV refers to a redevelopment
property. Two of the redevelopment properties, 5700 Touhy Avenue, Niles,
Illinois and 10601 Seymour Avenue, Elk Grove Village, Illinois, were under
redevelopment construction and not leasable as of December 31, 1997.
(6) Properties purchased through a sale-leaseback to the previous owner have no
operating history relevant to third party usage.
(7) Properties purchased from an owner occupant have no prior operating history
relevant to third party usage.
(8) The seller of this property holds a note payable by the Company in the
principal amount of $575,000 and secured by this property.
(9) Average Rent per square foot equals annualized base rental revenue divided
by GLA leased as of December 31, 1997.
(10) Average size equals total GLA divided by the number of properties.
LEASE EXPIRATIONS
The following table shows as of December 31, 1997 scheduled lease
expirations for the Company's warehouse/industrial properties commencing January
1, 1998 and for the next ten years, assuming that no tenants exercise renewal
options:
<TABLE>
<CAPTION>
AVERAGE % OF TOTAL
BASE RENT PROPERTIES % OF 1997
GLA OF ANNUALIZED PER SQ. FT. GLA BASE RENT
NO. OF EXPIRING BASE RENT UNDER REPRESENTED REPRESENTED
LEASES LEASES EXPIRING EXPIRING BY EXPIRING BY EXPIRING
EXPIRING (SQ. FT.) LEASES LEASES LEASES LEASES
-------- ------- ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C>
YEAR ENDING DECEMBER 31
1998 ............................................ 37 2,899,866 $10,507,956 $3.62 15.52% 18.27%
1999 ............................................ 30 3,927,435 9,018,461 2.30 21.01% 15.68%
2000 ............................................ 29 2,289,947 9,132,094 3.99 12.25% 15.88%
2001 ............................................ 16 1,328,270 5,539,526 4.17 7.11% 9.63%
2002 ............................................ 18 2,293,479 7,152,093 3.12 12.27% 12.43%
2003 ............................................ 10 555,538 2,821,050 5.08 2.97% 4.90%
2004 ............................................ 10 1,851,202 7,484,499 4.04 9.90% 13.01%
2005 ............................................ 6 945,726 3,408,648 3.60 5.06% 5.93%
2006 ............................................ 5 1,186,602 5,974,005 5.03 6.35% 10.39%
2007 ............................................ 7 1,065,987 7,064,402 6.63 5.70% 12.28%
</TABLE>
-18-
<PAGE>
OPTIONS TO PURCHASE GRANTED TO CERTAIN TENANTS
The following warehouse/industrial properties of the Company are subject to
purchase options granted to certain tenants as follows:
- A portion of the building complex at 4501 Augusta Boulevard is subject
to an option to purchase at fixed prices ranging from $2,779,320 to
$3,447,970 exercisable between September 1 and October 31 of each year
until 2003.
- One Waterfowl Way is subject to an option to purchase at any time
through October 31, 1999, exercisable on or before February 1, 1999.
The purchase price is equal to the annualized monthly rent being paid
as of the closing of the purchase, capitalized at 10%.
- 8901 102nd Street is subject to an option to purchase exercisable on
February 28, 2006 at a purchase price equal to 95% of "fair market
value," equal to the average of three independent appraisals.
- 1700 West Hawthorne is subject to a purchase option exercisable at any
time prior to December 1, 1998 (with the closing to occur during
December, 1999 regardless of when the option exercised) at a price of
$12,809,333 and again between December 1, 2002, and December 1, 2003
(with the closing to occur during December, 2004 regardless of when
the option is exercised) at a price of $15,033,636. If the property is
expanded, at tenant's option, the purchase price will be increased to
$12,909,333 for the first exercise period, and $15,233,636 for the
second exercise period, plus the construction cost of the expansion.
- 850 Arthur Avenue is subject to an option exercisable during March
1999 to purchase the premises on August 31, 1999 for a purchase price
equal to the fair market value of the premises as determined by the
Company or by an appraisal process.
- 2600 Elmhurst Road is subject to an option exercisable on or before
July 31, 2000 to purchase the premises during January 2001 for a
purchase price of $5,000,000.
- 21399 Torrence Avenue is subject to an option exercisable between
December 1, 1998 and May 31, 2000 and again between December 31, 2000
and May 31, 2002 to purchase the property on November 30, 2000 for
$8,941,920 and November 30, 2002 for $9,314,500.
In each case, the option price exceeds the Company's current net book
value. The Company believes that even if all of the purchase options are
exercised, such exercises will not have an adverse effect upon the operations of
the Company or its ability to maintain its dividend distribution policy. If any
purchase option is exercised, the Company intends to either distribute the cash
proceeds to shareholders or reinvest the cash proceeds in additional properties.
No assurance can be given that such distribution or reinvestment will occur.
In addition to purchase options, the Company has granted to tenants of
certain properties a right of first refusal (in the event the Company has
received an unsolicited offer from a third party to purchase the property which
the Company desires to accept) or a right of first offer (in the event the
Company has not received an unsolicited third party offer for the property but
desires to entertain an offer). The properties subject to one or both of these
rights include One Waterfowl Way, 8901 102nd Street, 825 Tollgate Road,
1400 Busse Road, 1651 Frontenac Road, 7001 Adams Street, 950 Tower Road and
-19-
<PAGE>
6312 W. 74th Street. The existence of those rights will not compel the Company
to sell a property for a price less than the price the Company desires to
accept.
THE COMPANY'S OTHER PROPERTIES
In addition to its warehouse/industrial properties, the Company owns three
retail properties having approximately 61,000 square feet of GLA, one 682-unit
apartment complex located at 440 North Lake Street, Miller, Indiana and known as
Lakeshore Dunes Apartments and a fully leased parking lot. The Company does not
intend to acquire properties other than warehouse/industrial properties in the
future. The Company believes, however, that these properties are favorable
investments for the Company, adding to distributable cash flow per share.
Furthermore, the Lakeshore Dunes Apartments were financed through the issuance
of tax-exempt revenue bonds on favorable terms, benefiting the Company by
reducing its overall borrowing costs. The Company has no present plans to sell
those properties but would entertain a sale if the price were sufficiently high,
given other investment opportunities that would be available to the Company, and
the enhanced operating performance expected to result, from redeployment of the
sales proceeds.
The following table sets forth certain information regarding the Company's
retail properties:
<TABLE>
<CAPTION>
PERCENT
YEAR OF OF
ACQUISITION/ PERCENT GLA AVERAGE
LAST YEAR OF TOTAL OF LEASED RENT
REDEVELOPMENT ORIGINAL GLA TOTAL AS OF ANNUALIZED Per NUMBER
OF CONSTRUCTION/ (SQ. FT.) GLA DECEMBER BASE RENT SQ. FT. OF
EXPANSION (1) EXPANSION (2) (3) 31, 1997 REVENUE (4) TENANTS
------------- --------- - - -------- ------- - -------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
4-48 Barrington Rd. 1994 1991 38,633 63.1% 68.8% $301,496 $ 7.80 8
Streamwood, IL
84-120 McHenry Rd. 1990/1993 1989 20,535 33.6% 89.5% 313,140 15.25 7
Wheeling, IL
351 North Rohlwing 1993 1989 2,015 3.3% 100.0% 61,440 30.49 1
Rd. Itasca, IL
------ ----- -------- ------
TOTAL 61,183 100.0% $676,076 $11.05 16
------ ----- -------- ------ --
------ ----- -------- ------ --
</TABLE>
- --------------
(1) First date is year of acquisition; second date is year of most recent
redevelopment or expansion. If only one date appears, it is the
acquisition date; the property has not been redeveloped or expanded.
(2) "GLA" means gross leasable area.
(3) Determined as a percent of the total GLA for the retail properties.
(4) Determined by dividing annualized base rent revenue by GLA.
The tenants of the Company's retail properties are typical of tenants in
smaller retail centers in Greater Chicago. Generally, the leases require
tenants to pay a fixed base, or "minimum" rent, subject to scheduled increases.
Tenants generally are required to pay their proportionate share of common area
maintenance charges, insurance expenses, operating expenses and real estate
taxes or their portion of these expenses is included in their base rent.
-20-
<PAGE>
The following table shows as of December 31, 1997 scheduled lease
expirations for the retail properties commencing January 1, 1998, and for the
next ten years, assuming no tenants exercise renewal options.
<TABLE>
<CAPTION>
GLA OF ANNUALIZED AVERAGE BASE % OF TOTAL RETAIL % OF 1997 RETAIL
NO. OF EXPIRING BASE RENT RENT PROPERTIES GLA BASE RENT
YEAR ENDING LEASES LEASES EXPIRING PER SQ. FT. UNDER REPRESENTED BY REPRESENTED BY
DECEMBER 31 EXPIRING (SQ. FT.) LEASES EXPIRING LEASES EXPIRING LEASES EXPIRING LEASES
- ----------- -------- --------- ------ --------------- --------------- ---------------
<S> <C> <C> <C> <C> <C> <C>
1998 3 8,214 $116,196 $14.15 18.93% 17.11%
1999 2 3,937 57,468 14.60 9.08% 8.46%
2000 3 10,334 107,295 10.38 23.82% 15.80%
2001 3 9,242 112,759 12.20 21.30% 16.60%
2002 0 0 0 0 0% 0%
2003 0 0 0 0 0% 0%
2004 0 0 0 0 0% 0%
2005 1 2,400 86,089 35.87 5.53% 12.68%
2006 3 9,254 199,299 21.54 21.33% 29.35%
2007 0 0 0 0 0% 0%
</TABLE>
Lakeshore Dunes Apartments, which was constructed in 1971 and renovated
between 1991 and September, 1993, is comprised of 682 units in 15 contiguous
buildings located on an approximately 20.12 acre site in Miller, Indiana, a
suburb of Gary, Indiana, located on Lake Michigan. The property is bordered by
the Indiana Dunes National Park and by the Calumet Lagoon and is less than
one-half mile from public beaches. Amenities of the complex include redesigned
units with updated kitchens and appliances, carpeting, lighting, windows and
mini-blinds, bathrooms and fixtures, elevators, laundry rooms, play lots, tennis
courts, picnic areas, a new outdoor pool, roads, parking areas, landscaping and
a 24-hour safety patrol and card access system. The community center also serves
as the management and leasing office. The Company maintains a complete
management, leasing and maintenance team at the property.
As of December 31, 1997, 630 of the units, or 92%, were leased, providing
for a monthly base rent of approximately $287,000 or $7.72 per square foot per
annum (determined by dividing annualized base rent by total leased square
footage of the apartment units), or an annualized base rent of $3,444,000.
Current leases provide for customary one year terms and require that tenants pay
a fixed rent based on the type of apartment and square footage. Tenants are
responsible for utilities. The following table sets forth the apartment mix at
this property as of December 31, 1997:
-21-
<PAGE>
<TABLE>
<CAPTION>
NUMBER OF UNITS TOTAL GLA AVERAGE GLA PER AVERAGE MONTHLY
TYPE OF APARTMENT IN COMPLEX (SQ. FT.) APARTMENT (SQ. FT.) Rent Per Unit
- ----------------- ---------- --------- ------------------- -------------
<C> <C> <C> <C> <C>
Studio 48 20,208 421 $ 374
One Bedroom 171 99,009 579 459
Deluxe One Bedroom 43 29,283 681 467
Two Bedroom 390 308,100 790 533
Three Bedroom 30 28,500 950 656
--- -------
TOTALS: 682 485,100
--- -------
--- -------
</TABLE>
In 1996, a parking lot within an industrial park was purchased. The
parking lot is leased for ten years through January 2006 for an annual minimum
rent of $26,400. In 1997, the Company sold a 118,000 square foot office
building.
ITEM 3. LEGAL PROCEEDINGS.
The Company is not subject to or involved in, nor is the Company aware of,
any pending or threatened litigation which could be material to the financial
position or results of operations of the Company. For a description of
remediation activities currently underway at certain of the Company's
properties, see "Environmental Matters" under Item 1 above.
ITEM 4. SUBMISSION OF CERTAIN ITEMS TO A VOTE OF SECURITY HOLDERS.
The Company held a Special Meeting of Stockholders on October 1, 1997 to
approve the reorganization of the Company from a Maryland corporation to a
Maryland real estate investment trust, pursuant to a Plan of Reorganization. At
the Special Meeting of Stockholders, the Plan of Reorganization was approved as
follows: 12,620,549 shares were voted in person or by proxy at the Special
Meeting of Stockholders; 12,593,693 shares were voted in favor of the Plan of
Reorganization; 5,427 shares were voted against the Plan of Reorganization; and
21,429 shares abstained from voting.
-22-
<PAGE>
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED MATTERS.
(a) The Company's Common Shares are listed and traded on the New York
Stock Exchange under the symbol "CNT." The following table sets forth, for the
periods indicated, the high and low sale prices of the Common Shares (as
reported by the AMEX prior to June 12, 1996 and as reported by the NYSE on and
after June 12, 1996) and the cash distributions paid in such periods.
<TABLE>
<CAPTION>
CASH
QUARTERLY PERIOD ENDING HIGH LOW DISTRIBUTION/SHARE
----------------------- ---- --- ------------------
<S> <C> <C> <C>
December 31, 1995................. $23-3/8 $21-5/8 $0.390
March 31, 1996.................... 24-1/8 22 0.405
June 30, 1996..................... 27 26-1/8 0.405
September 30, 1996................ 26-7/8 26-3/4 0.405
December 31, 1996................. 32-3/4 30-7/8 0.405
March 31, 1997.................... 32-7/8 30-1/4 0.420
June 30, 1997..................... 31-7/8 28-1/2 0.420
September 30, 1997................ 36-5/16 31-7/8 0.420
December 31, 1997................. 37-1/16 31-1/4 0.420
</TABLE>
(b) As of March 17, 1998, there were approximately 142 holders of record
of the Company's Common Shares.
(c) Cash distributions paid on the Company's Class B Common Shares, which
are non-voting and are not publicly traded, were $0.4167 per share per quarter
for the last three quarters of 1996, and $0.4325 per share per quarter in 1997.
-23-
<PAGE>
ITEM 6.
SELECTED HISTORICAL FINANCIAL DATA
The following tables set forth, on a historical basis, Selected Financial
Data for the Company. The following table should be read in conjunction with
the historical financial statements of the Company and "MANAGEMENT DISCUSSION
AND ANALYSIS STATEMENTS OF THE COMPANY AND RESULTS OF OPERATION," both included
elsewhere in this Form 10-K.
The Selected Financial Data for the Company is not necessarily indicative
of the actual financial position of the Company or results of operations at any
future date or for a future period.
CENTERPOINT PROPERTIES TRUST AND SUBSIDIARIES
SELECTED HISTORICAL FINANCIAL DATA
(IN THOUSANDS, EXCEPT FOR PER SHARE DATA, RATIOS AND NUMBER OF PROPERTIES)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
1997 1996 1995 1994 1993
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Operating Data
Revenues $85,958 $63,330 $46,952 $33,633 $9,068
Expenses:
Operating expenses excluding depreciation and
amortization (1) (29,182) (20,751) (14,774) (11,442) (4,124)
Depreciation and other amortization (15,278) (10,648) (8,456) (6,176) (2,539)
General and administrative (3,105) (2,567) (2,150) (1,573) (3,223)
Interest expense:
Interest incurred, net (10,071) (9,865) (11,562) (11,073) (3,808)
Amortization of deferred financing costs (800) (1,127) (1,150) (976) (228)
------- ------- ------- ------- ------
Operating income (loss) 27,522 18,372 8,860 2,393 (4,854)
Other income (expense) (2) 108 (100) (16) (34) (76)
------- ------- ------- ------- ------
Income (loss) before extraordinary item 27,630 18,272 8,844 2,359 (4,930)
Extraordinary item -- (3,331) (632) -- --
------- ------- ------- ------- ------
Net income (loss) 27,630 14,941 8,212 2,359 (4,930)
Preferred dividend (901) (947) (1,002) -- --
------- ------- ------- ------- ------
Net income (loss) available to common shareholders 26,729 13,994 7,210 2,359 (4,930)
Per share net income (loss) available to common
shareholders before extraordinary item:
Basic 1.43 1.25 0.85 0.41 (3.90)
Diluted 1.41 1.22 0.84 0.41 (3.90)
Per share net income (loss) available to common
shareholders:
Basic 1.43 1.01 0.78 0.41 (3.90)
Diluted 1.41 0.99 0.77 0.41 (3.90)
Balance Sheet Data (End of Period):
Investment in real estate (before accumulated depreciation) $641,646 $429,034 $317,460 $248,281 $180,396
Net investment in real estate 597,294 398,828 295,884 234,825 172,946
Total assets 699,275 451,206 334,866 254,073 190,289
Total debt 270,768 177,349 145,271 179,492 131,963
Shareholders' equity 388,126 248,114 168,320 59,016 46,240
Other Data:
Funds from Operations (3) $42,968 $30,445 $20,492 $ 13,138 $ (2,110)
EBITDA (4) 53,779 39,912 30,013 20,584 1,564
-24-
<PAGE>
Net cash flow:
Operating activities 39,411 29,552 16,473 8,976 275
Investing activities (245,336) (111,554) (82,556) (65,311) (140,120)
Financing activities 206,507 80,194 68,541 52,837 142,443
Distributions 32,046 24,065 15,953 8,775 1,295
Return of capital portion of distribution 3,916 12,280 8,554 4,320 --
Number of properties included in operating results (5) 100 76 69 53 38
Ratio of earnings to fixed charges (6) 3.27 2.33 1.63 1.19 --
Ratio of earnings to combined fixed charges and
preferred dividends (6) 3.04 2.15 1.51 1.19 --
</TABLE>
- --------------
(1) Operating expenses include real estate taxes, repairs and maintenance,
insurance and utilities and exclude interest, depreciation and amortization
and general and administrative expenses.
(2) Other income (expense) includes gains and losses on property dispositions
in 1997 and 1996, and other miscellaneous operating and non-operating
items.
(3) Funds from Operations represents net income (loss), excluding extraordinary
items, sales of (or adjustments to basis of) properties plus depreciation
and amortization, convertible subordinated debenture interest and
amortization of deferred financing costs on convertible subordinated
debentures. Dividends on Convertible Preferred Shares for 1996 and 1995
are not excluded from net income as such shares were automatically
converted to Class B Common Shares in 1996. Funds from operations is
computed as follows:
<TABLE>
<CAPTION>
1997 1996 1995 1994 1993
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Net income (loss) available to common
shareholders $26,729 $14,941 $8,212 $2,359 $(4,930)
Extraordinary item 3,331 632 -- --
Depreciation and amortization 15,278 10,648 8,456 6,176 2,540
Amortization of deferred financing costs,
debentures 48 67 135 267 13
Convertible subordinated debenture interest 999 1,385 3,057 4,336 267
(Gain) Loss on disposition of properties
(86) 73 -- -- --
------- ------- ------- ------- ------
Funds from Operations $42,968 $30,445 $20,492 $13,138 $(2,110)
------- ------- ------- ------- ------
------- ------- ------- ------- ------
</TABLE>
Management of the Company believes that Funds from Operations is helpful to
investors as a measure of the performance of equity REIT shares because,
along with cash flows from operating activities, financing activities and
investing activities, it provides investors an understanding of the ability
of the Company to incur and service debt and to make capital expenditures.
Funds from Operations does not represent cash flow from operations as
defined by generally accepted accounting principles ("GAAP"), should not be
considered by the reader as an alternative to net income as an indicator of
the Company's operating performance or to cash flows as a measure of
liquidity, and is not indicative of cash available to fund all cash flow
needs. Investors are cautioned that Funds from Operations, as calculated
by the Company, may not be comparable to similarly titled but differently
calculated measures for other REITs.
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.
(4) Earnings before interest, income taxes, depreciation and amortization.
Management believes
-25-
<PAGE>
that EBITDA is helpful to investors as an indication of property
operations, because it excludes costs of financing and non-cash
depreciation and amortization amounts. EBITDA does not represent cash
flows from operations as defined by GAAP, should not be considered by the
reader as an alternative to net income as an indicator of the Company's
operating performance, and is not indicative of cash available to fund all
cash flow needs.
(5) Increase in number of properties in 1994 reflects the acquisition of 15
properties throughout 1994. Increase in number of properties in 1995
reflects acquisition of 16 properties throughout 1995. Increase in number
of properties in 1996 reflects acquisition of 15 properties and the
disposition of 8 properties throughout 1996. Increase in number of
properties in 1997 reflects the acquisition of 21 properties, the
completion of 6 developments, and the disposition of 3 properties
throughout 1997. See "MANAGEMENTS' DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS."
(6) The ratio of earnings to fixed charges for the year ended December 31,
1993, was less than one to one. The approximate dollar amount (in
thousands) necessary to cover the deficiency in that period was $5,400.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS.
GENERAL BACKGROUND
The following is a discussion of the historical operating results of the
Company. This discussion should be read in conjunction with the Financial
Statements and the information set forth under "SELECTED HISTORICAL FINANCIAL
DATA."
The results of the Company reflect cumulative significant acquisition,
build-to-suit and redevelopment activities. Since 1989, the Company has grown
its portfolio of owned properties from 6 properties, with approximately 1.9
million square feet, to 100 properties with approximately 22.6 million square
feet as of December 31, 1997. This total excludes properties under development
and mortgage investments. Through the issuance of mortgages on properties and
build-to-suit projects under development, the Company has a total of 109
property investments, excluding the parking lot, representing approximately 25
million square feet.
The Company grew its total property investments by 52% in 1997, which
includes build-to-suits in progress and mortgage investments. In addition, the
Company grew its portfolio of owned properties by 60.3% during the year by
concluding twenty-one warehouse/industrial property acquisitions and six
warehouse/industrial build-to-suit properties. The Company disposed of two
warehouse/industrial properties and one office property in 1997. The Company's
total increase in owned warehouse/industrial area, net of dispositions, was 8.5
million square feet.
Despite its growth in property investments and Funds from Operations during
1997, the Company improved its EBITDA/ Debt Service Coverage to 6 to 1. Also,
as of December 31, 1997, the Company maintained a conservative Debt to Total
Market Capitalization of 25.1%.
The Company's Consolidated Financial Statements for the year ended December
31, 1997, 1996 and 1995 reflect partial period results for acquisitions,
dispositions and expansions made during each respective year. These statements
also include the lease-up of previously vacant space, related to the properties
owned by the Company as of January 1, 1997, 1996 and 1995, respectively. The
Company's
-26-
<PAGE>
1996 acquisitions included three additional properties and 1997 acquisitions
include one additional property previously owned by entities in which certain
executive officers of the Company had an interest. These transactions satisfied
the Company's investment criteria and were approved by the Company's independent
trustees.
Finally, the historical results of the Company reflect the Company's
significant property redevelopment and development activities in which
substantial capital costs and related expenses were incurred in advance of
receipt of rental income. At December 31, 1997, the Company and its
subsidiaries had $26 million invested in build-to-suit projects under
development which were not producing income as of the end of the year. Four of
the Company's properties preceding the Company's initial public offering in
1993, with a total area of approximately 1.9 million square feet, were property
redevelopments. The Company has added nine properties totaling 4.5 million
square feet that the Company has redeveloped or is currently holding the
property to redevelop. Redevelopments are typically larger properties that are
acquired, subdivided and released. During construction, certain costs are
capitalized; however, in certain circumstances, such costs are expended after
completion but prior to leasing, resulting in a decline in net income.
RESULTS OF OPERATIONS
COMPARISON OF YEAR ENDED DECEMBER 31, 1997 TO YEAR ENDED DECEMBER 31, 1996
Total revenues increased by $22.6 million or 35.7% over the same period
last year. The revenues of the Company are derived primarily from base rents
and additional rents from expense reimbursements, pursuant to the terms of
tenant leases for occupied space at the warehouse/industrial properties.
Warehouse/industrial properties represented approximately 98% of the gross
leasable area of the Company's portfolio as of December 31, 1997.
Rental revenues increased by $15.4 million in 1997. This was due in part
to a full period of income from thirteen warehouse/industrial properties
totaling 3.3 million square feet acquired in 1996 net of seven property
dispositions. Also, this increase was attributable to twenty-one properties
acquired totaling 7.1 million square feet and six build-to-suit properties
coming on-line totaling 1.5 million square feet in 1997, net of three property
dispositions. The initial annualized minimum net rental income from the 1997
acquisition and completed build-to-suit properties is approximately $25 million.
In addition, mortgage interest income contributed approximately $632,000 to
the increase in revenue. Real estate fee income primarily consisting of fees
earned by the Company in connection with its build-to-suit and development
activities and third party management fees decreased by $2.0 million. The
Company's equity in net income of affiliate increased by $1.1 million due to the
affiliate's increase in property and build-to-suit sales. The Company's
unconsolidated affiliate, CenterPoint Realty Services, began operations during
the third quarter of 1995 and did not recognize income from development
activities until 1996.
On a "same-store" basis (comparing the results of operations, on a cash
basis, of the properties owned at December 31, 1996, with the results of
operations of the same properties at December 31, 1997), the Company recognized
an increase of approximately 6% in net operating income primarily due to lease
up of vacant space, rental increases on renewed leases and contractual increases
in minimum rent under leases in place.
Real estate tax expense and property operating and leasing expense
increased by $8.4 million,
-27-
<PAGE>
from $20.8 million in 1996 to $29.2 million in 1997. $5.2 million of the
increase is due to real estate taxes. The majority of the real estate tax
increase, $5.0 million, resulted from 1995 and 1996 acquisitions and the
balance, $0.2 million, from net tax increases throughout the portfolio with the
largest increase in Cook County, Illinois. Property operating and leasing
expenses, including insurance, utilities, repairs and maintenance and property
management costs increased at levels comparable to the level of acquisitions.
Also, property operating and leasing costs as a percentage of total revenues
remained consistent when comparing 1997 to 1996 at approximately 14%.
Depreciation and other amortization increased by $4.7 million, from $10.6
million in 1996 to $15.3 million in 1997. The increase is due primarily to full
period depreciation on acquisitions completed during 1996 and depreciation from
dates of acquisition for the 1997 acquisitions and fixed asset additions.
General and administrative expenses increased by $0.5 million, from $2.6 million
in 1996 to $3.1 million in 1997, due primarily to the growth of the Company.
Interest incurred increased by approximately $206,000 over last year.
Although the acquisition level was higher during 1997, interest expense was held
to approximately the same level as 1996 due to the repayment of debt from public
offerings of common equity in March and preferred equity in November, 1997, and
reduced borrowing rates. Other income (expenses) increased by approximately
$208,000 from the same period last year due in part to the gain on disposition
of one property totaling approximately $140,000 in 1997. The remaining net
increase was the result of losses recorded on the disposition of three
properties in 1996.
As a result of the factors described above, income before extraordinary
item increased by $9.3 million from $18.3 million in 1996 to $27.6 million in
1997, an increase of 50.8%. Earnings before interest, income taxes,
depreciation and amortization increased by $13.9 million, from $39.9 million in
1996 to $53.8 million in 1997.
In 1996, the Company incurred an extraordinary loss of $3.3 million
representing a write off of unamortized deferred financing costs as a result of
the re-financing of its outstanding revenue bonds. In addition, the Company
replaced its $92 million secured lines of credit with a $135 million unsecured
credit facility at a significant savings in interest. No debt was re-financed
in 1997, and the unsecured credit facility was increased to $150 million.
COMPARISON OF YEAR ENDED DECEMBER 31, 1996 TO YEAR ENDED DECEMBER 31, 1995
Total revenues in 1996 increased by $16.3 million or 34.9% over 1995.
Tenants occupied approximately 95% of the gross leasable area of the Company's
portfolio as of December 31, 1996.
Rental revenues increased by $8.0 million in 1996 primarily because of full
period income from sixteen warehouse/industrial properties acquired totaling 2.7
million square feet in 1995 and thirteen warehouse/industrial properties
acquired totaling 3.3 million square feet in 1996 net of seven property
disposals. Initial minimum net rental income from the 1996 acquisition
properties is approximately $13.1 million. In addition, mortgage interest
income from mortgage financing activities, which originated in December, 1995,
contributed $1.4 million to the increase in revenue. Real estate fee income
primarily consisting of fees earned by the Company in connection with its
build-to-suit and development activities and third party management fees
increased by $3.7 million. Also, equity in net income of affiliate increased by
$1.0 million due to their increased activity in build-to-suit activity. The
Company's unconsolidated affiliate, CenterPoint Realty Services, began
operations during the third quarter of 1995 and did not recognize income from
development activities until 1996.
-28-
<PAGE>
On a "same-store" basis (comparing the results of operations, on a cash
basis, of the properties owned at December 31, 1995, with the results of
operations of the same properties at December 31, 1996), the Company recognized
an increase of approximately 4% in net operating income primarily due to lease
up of vacant space, rental increases on renewed leases and contractual increases
in minimum rent under leases in place.
Total operating expenses, excluding general and administrative expenses,
interest, depreciation and amortization, increased by $6.0 million, from $14.8
million in 1995 to $20.8 million in 1996. $4.1 million of the increase was due
to real estate taxes. The majority of the real estate tax increase, $3.3
million, resulted from 1995 and 1996 acquisitions and the balance, $0.8 million,
from tax increases throughout the portfolio, with the largest increase in Cook
County, Illinois. Property operating and leasing expenses increased at levels
comparable to the level of acquisitions.
Depreciation and other amortization increased by $2.1 million, from $8.5
million in 1995 to $10.6 million in 1996. The increase is due primarily to full
period depreciation on acquisitions completed during 1995 and depreciation from
dates of acquisition for the 1996 additions. General and administrative
expenses increased by $0.4 million, from $2.1 million in 1995 to $2.5 million in
1996, due primarily to the growth of the Company.
Interest incurred decreased by $1.7 million over the same period in 1995
due in part to the conversion to common stock of $8.9 million of convertible
subordinated debentures. Although the acquisition level was higher during 1996,
interest expense was held to approximately the same level as 1995 due to the
repayment of debt from a public offering that closed in July, 1996, and reduced
borrowing rates. Other expenses increased by approximately $84,000 from the
same period last year due to the loss on disposition of three properties
totaling approximately $72,000.
As a result of the factors described above, income before extraordinary
item increased by $9.5 million from $8.8 million in 1995 to $18.3 million in
1996, an increase of 108.0%. Earnings before interest, income taxes,
depreciation and amortization increased by $9.9 million, from $30.0 million in
1995 to $39.9 million in 1996.
In 1996 and 1995, the Company incurred an extraordinary loss of
approximately $3.3 million and approximately $0.6 million, respectively,
representing the write-off of unamortized deferred financing costs as a result
of the early extinguishment of certain debt obligations resulting from the
Company's debt transactions.
LIQUIDITY AND CAPITAL RESOURCES
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 1997 of $39.4 million net of $31.1
million of current year distributions provided $8.3 million of retained capital
to fund investment activities. The Company expects retained capital to fund
future investment activities.
Acquisitions, construction in progress on development projects, advances to
affiliate, advances on mortgage notes receivable, and improvements and additions
to properties of approximately $226.5 million for 1997 were funded with
borrowings under the Company's unsecured line of credit totaling $211.7 million,
a portion of proceeds from the disposition of real estate of $13.5 million,
repayment of
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<PAGE>
mortgage notes receivable of $5.7 million and a portion of the net proceeds from
the March 6, 1997 public offering of common shares.
At December 31, 1997, the Company's debt constituted approximately 25.1% of
its fully diluted market capitalization. Also, the Company's coverage ratio
remained high at 6 to 1. The Company's fully diluted equity market
capitalization was approximately $774 million, and its fully diluted total
market capitalization exceeded $1.0 billion. The Company's leverage ratios
benefited during 1997 from the conversion of approximately $2.6 million of its
8.22% Convertible Subordinated Debentures, due 2004, to 144,640 common shares.
At December 31, 1997, the Company had a $150 million unsecured credit
facility co-led by First Chicago NBD and Lehman Brothers with participating
banks. As of December 31, 1997, the Company had outstanding borrowings of
approximately $97.7 million under the unsecured revolving line of credit
(approximately 9.5% of the Company's fully diluted market capitalization), and
the Company had remaining availability of approximately $52.3 million under its
unsecured line of credit.
On September 18, 1997, the Company issued $55 million unsecured tax-exempt
bonds for the development costs of the Company's O'Hare Express air freight
center. With the completion of this issue, 34% of the Company's senior debt
(excluding line of credit) was tax exempt as of December 31, 1997, saving
approximately 200 basis points on average from comparable taxable financing.
On March 6, 1997, the Company completed a public offering of 2,250,000
common shares at $31.50 per share under a shelf registration statement. Net
proceeds from the offering after the underwriting discounts and other offering
costs were approximately $66.8 million. The proceeds of the offering were used
to refund approximately $58.2 million outstanding under the Company's line of
credit with the balance of $8.6 million to fund investments.
On November 10, 1997, the Company completed a public offering of 3,000,000
shares of 8.48% preferred at $25 per share under a shelf registration statement.
Net proceeds from the offering after underwriting discounts and other offering
costs were approximately $71.9 million. The proceeds of the offering were used
to refund amounts outstanding under the Company's line of credit.
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 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.
As of December 31, 1997, the Company had approximately $36.5 million in
restricted cash, $34.6 million of which was held in a construction escrow for
the Company's build-to-suit development at O'Hare Express Center. Most of the
remainder of the restricted cash is made up of real estate tax escrows for
tenants requiring such escrows under the terms of their leases.
During 1997, the Company declared and paid distributions on common shares
of $27.2 million or $1.68 per share and on class B common shares of $3.9 million
or $1.73 per share. Also, in 1997, the Company declared dividends on preferred
shares of $1.43 million or $0.477 per share, payable in January 1998. The
dividends on preferred shares attributable to 1997 income, which appear on the
Company's Consolidated Statements of Operations and Shareholders' Equity were
$901 thousand or $0.30 per share. The following factors, among others, will
affect the future availability of funds for
-30-
<PAGE>
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.
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 through draws on the
Company's unsecured line of credit, the issuance of long-term unsecured
indebtedness and the issuance of equity securities.
- -
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.
ACCOUNTING PRONOUNCEMENTS
In June 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards ("SFAS") No. 130, "Reporting Comprehensive
Income" and SFAS No. 131, "Disclosures About Segments of an Enterprise and
Related Information." Both SFAS No. 130 and SFAS No. 131 are effective for
financial statements for years beginning after December 15, 1997. SFAS No. 130
requires the reporting of comprehensive income beginning 1998 and SFAS No. 131
establishes standards for publicly-held business enterprises to report
information about operating segments in annual financial statements and requires
that these enterprises report selected information about operating segments in
interim financial reports issued to shareholders. The Company plans to adopt
SFAS No. 130 and No. 131 in 1998.
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 effect 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 affect 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 and financial position, and is
being expensed as incurred.
-31-
<PAGE>
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.
See Index to Financial Statements on Page F-1 of this Annual Report on Form
10-K for the financial statements and financial statement schedules.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE.
None.
-32-
<PAGE>
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT.
Item 10 is incorporated herein pursuant to General Instruction G to Form
10-K by referencing the Company's definitive proxy statement, which will be
filed with the Securities and Exchange Commission pursuant to Regulation 14A not
later than 120 days after the close of the fiscal year.
ITEM 11. EXECUTIVE COMPENSATION
Item 11 is incorporated herein pursuant to General Instruction G to Form
10-K by referencing the Company's definitive proxy statement, which will be
filed with the Securities and Exchange Commission pursuant to Regulation 14A not
later than 120 days after the close of the fiscal year.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Item 12 is incorporated herein pursuant to General Instruction G to Form
10-K by referencing the Company's definitive proxy statement, which will be
filed with the Securities and Exchange Commission pursuant to Regulation 14A not
later than 120 days after the close of the fiscal year.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
Item 13 is incorporated herein pursuant to General Instruction G to Form
10-K by referencing the Company's definitive proxy statement, which will be
filed with the Securities and Exchange Commission pursuant to Regulation 14A not
later than 120 days after the close of the fiscal year.
-33-
<PAGE>
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K.
(a) The following documents are filed as part of this report:
(1) (2) The consolidated financial statements and related schedules
indicated in Part II, Item 8, "Financial Statements and
Supplementary Data."
(3) Exhibit 10.51 - Amended and Restated Unsecured Revolving
Credit Agreement among the Company, The First National Bank
of Chicago, Lehman Brothers Holdings and the other lenders
named therein
(4) Exhibit 10.52 - Third Amendment to Stock Option Plan
(5) Exhibit 10.53 - First Amendment to Credit Agreement
(6) Exhibit 12 - Computation of Ratio of Combined Earnings to
Fixed Charges and Preferred Dividends
(7) Exhibit 13 - Annual Report to Security Holders
(8) Exhibit 23 - Consent of Independent Accountants
(9) Exhibit 27 - Financial Data Schedule
The following exhibits are incorporated by reference from the
Registrant's Registration Statement on Form S-11 (File No. 33-69710),
referencing the exhibit numbers used in such Registration Statement:
<TABLE>
<CAPTION>
Exhibit Number Description
-------------- ------------
<S> <C>
4.3 Form of Indenture
10.3(a) Mortgage Documents regarding 440 North Lake
Street, Gary, IN
10.3(c) Mortgage Documents regarding 905-909 Irving Park
Road, Itasca, IL
10.3(d) Mortgage Documents regarding 6845 Santa Fe,
Hodgkins, IL
10.4 Form of Noncompetition Agreement for Executive
Officers
10.5 Form of Employment Agreement for Executive
Officers
10.10 Indemnification Agreement among John S. Gates,
Jr., Capital and Regional Properties and the
Company
10.11 Indemnification Agreement among Robert L. Stovall,
Michael M.
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<PAGE>
Mullen and the Company
10.12 Indemnification Agreement between David Kahnweiler
and the Company
</TABLE>
The following exhibits are incorporated by reference from
Pre-Effective Amendment No. 2 to the Registrant's Registration
Statement on Form S-11 (File No. 33-69710), referencing the exhibit
numbers used in such Amendment No. 2:
<TABLE>
<CAPTION>
Exhibit Number Description
-------------- ------------
<S> <C>
10.1 Stock Option Plan
</TABLE>
The following exhibits are incorporated by reference from the
Registrant's Registration Statement on Form S-11 (File No. 33-85440),
referencing the numbers used in such Registration Statement:
<TABLE>
<CAPTION>
Exhibit Number Description
-------------- ------------
<S> <C>
10.32 Registration Rights Agreement between the Company
and Corum Zeller Venture
10.38 Promissory Note from the Company to the Prudential
Insurance Company of America
10.39 Mortgage, Security Agreement and Fixture Filing
relating to the Promissory Note form the Company
to The Prudential Insurance Company of America
</TABLE>
The following exhibits are incorporated by reference from the
Registrant's Form 10-Q for the fiscal quarter ended September 30,
1995, referencing the numbers used in such Form 10-Q:
<TABLE>
<CAPTION>
Exhibit Number Description
-------------- ------------
<S> <C>
4.1 1995 Restricted Stock Incentive Plan
4.2 1995 Director Stock Plan
4.3 Bonus Stock Grant Agreement between the Company
and John S. Gates, Jr.
4.4 Bonus Stock Grant Agreement between the Company
and Robert L. Stovall
4.5 Series A Preferred Stock Purchase Agreement
between the Company and LaSalle Advisors Limited
Partnership
4.6 Registration Rights Agreement between the Company
and LaSalle
</TABLE>
-35-
<PAGE>
Advisors Limited Partnership
The following exhibits are incorporated by reference from the
Registrant's Form 10-K for the fiscal year ended December 31, 1995,
referencing the numbers used in such Form 10-K:
<TABLE>
<CAPTION>
Exhibit Number Description
-------------- ------------
<S> <C>
4.1 Indenture of CP Financing Trust
10.1 First Amendment to Stock Option Plan
10.2 Mortgage Documents regarding 850 Arthur Street,
Elk Grove Village, Illinois
10.3(a) Mortgage, Assignment of Rents and Leases and
Security Agreement of CP Financing Trust regarding
the following properties in Cook County, Illinois
1520 Pratt, Elk Grove Village
1201 Lunt, Elk Grove Village
1390 Lunt, Elk Grove Village
5619-25 W. 115th St., Alsip
900 University Dr., Arlington Heights
10.3(b) Mortgage, Assignment of Rents and Leases and
Security Agreement of CP Financing Trust regarding
the following properties in DuPage County,
Illinois
7001 Adams, Willowbrook
245 Benoris, Wood Dale
1733 Downs Dr., W. Chicago
1645 Downs Dr., W. Chicago
10.3(c) Mortgage, Assignment of Rents and Leases and
Security Agreement of CP Financing Trust regarding
the following properties in Lake County, Illinois
1300 Northpoint, Waukegan
1800 Industrial Dr., Libertyville
950-970 Tower Rd., Mundelein
1 Wildlife Way, Long Grove
1810-20 Industrial Dr., Libertyville
1700 Butterfield, Mundelein
10.3(d) Mortgage, Assignment of Rents and Leases and
Security Agreement of CP Financing Trust regarding
the following property in Kane County, Illinois
315 Kirk Rd., St. Charles
10.3(e) Mortgage, Assignment of Rents and Leases and
Security Agreement of CP Financing Trust regarding
the following
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<PAGE>
property in Will County, Illinois
1319 Marquette, Romeoville
10.3(f) Mortgage, Assignment of Rents and Leases and
Security Agreement of CP Financing Trust regarding
the following properties in Wisconsin
8200 100th St., Pleasant Prairie
8901 102nd St., Pleasant Prairie
10.3(g) Mortgage, Assignment of Rents and Leases and
Security Agreement of CP Financing Trust regarding
the following property in Indiana
201 E. Mississippi, Gary
10.3(h) Assignment and Assumption of Mortgage and Other
Obligations between CP Financing Trust and Great
Lakes Industrial Partners, L.P.
10.3(i) Assignment and Assumption of Tenant Leases and
Contracts between CP Financing Trust and the
Company
10.3(j) Assignment and Assumption of Tenant Leases and
Contracts between CP Financing Trust and Great
Lakes Industrial Partners, L.P.
</TABLE>
The following exhibit is incorporated by reference from the
Registrant's Form 10-Q for the fiscal quarter ended September 30,
1996, referencing the number used in such Form 10-Q:
<TABLE>
<CAPTION>
Exhibit Number Description
-------------- ------------
<S> <C>
10.43 Unsecured Revolving Credit Agreement among The
First National Bank of Chicago, Lehman Brothers
Holdings Inc., the other Lenders named therein and
the Company
</TABLE>
The following exhibits are incorporated by reference from the
Registrant's Registration Statement on Form S-3 (File No. 333-18235),
referencing the exhibit numbers used in such Form S-3:
<TABLE>
<CAPTION>
Exhibit Number Description
-------------- ------------
<S> <C>
4.3 Form of Senior Securities Indenture
4.4 Form of Subordinated Securities Indenture
</TABLE>
-37-
<PAGE>
The following exhibits are incorporated by reference from the
Registrant's Form 10-K for the fiscal year ended December 31, 1996,
referencing the numbers used in such Form 10-K:
<TABLE>
<CAPTION>
Exhibit Number Description
-------------- ------------
<S> <C>
10.44 Second Amendment to Stock Option Plan
10.45 Settlement Agreement and Mutual Release
10.46 Employment Separation Agreement between the Company and
Robert L. Stovall
10.47 Documents relating to City of Gary, Indiana Revenue
Refinancing Bonds, Series 1996A and Series 1996B, of the
Miller Partnership, L.P.
10.48 First Amendment to Unsecured Revolving Credit Agreement
10.49 Second Amendment to Unsecured Revolving Credit Agreement
21 List of Subsidiaries
</TABLE>
The following exhibits are incorporated by reference from the
Registrant's Registration Statement on Form S-4 (File No. 333-33515),
referencing the numbers used in such Form S-4:
<TABLE>
<CAPTION>
Exhibit Number Description
-------------- -----------
<S> <C>
2 Plan of Reorganization
3.3 Declaration of Trust of the Registrant
3.4 By-Laws of the Registrant
</TABLE>
The following exhibits are incorporated by reference from the
Registrant's Pre-Effective Amendment No. 1 to Form S-4 (File No.
333-33515), referencing the numbers used in such Pre-Effective
Amendment No. 1:
<TABLE>
<CAPTION>
Exhibit Number Description
-------------- -----------
<S> <C>
4.1 Form of certificate representing common shares of beneficial
interest in the Registrant
4.2 Form of certificate representing 8.22% Convertible Subordinated
Debentures
4.4 Form of First Supplemental Indenture
</TABLE>
The following exhibits are incorporated by reference from the
Registrant's Form 8-A filed on November 5, 1997, referencing the
numbers used in such Form 8-A:
-38-
<PAGE>
<TABLE>
<CAPTION>
Exhibit Number Description
-------------- -----------
<S> <C>
1 Articles Supplementary to the Declaration of Trust of the
Registrant establishing and fixing the rights and
preferences of the Series A Preferred Shares
4 Form of certificate representing Series A Preferred Shares
of beneficial interest in the Registrant
</TABLE>
The following exhibits are incorporated by reference from the
Registrant's Form 10-Q for the fiscal quarter ended September 30,
1997, referencing the numbers used in such Form 10-Q:
<TABLE>
<CAPTION>
Exhibit Number Description
-------------- ------------
<S> <C>
10.50 Documents relating to $55 million City of Chicago
Variable/Fixed Rate Demand Special Facilities Airport
Revenue Bonds (CenterPoint O'Hare, L.L.C. Project) Series
1997
</TABLE>
(b) During the fourth quarter of 1997, the Company filed a Current Report
on Form 8-K on December 30, 1997 to report the acquisition by the Company of
properties which constituted more than 10% of the total assets of the Company
and its consolidated subsidiaries.
(c) An annual report will be sent to Stockholders subsequent to this
filing, and the Company will furnish copies of such report to the Securities and
Exchange Commission.
(d) Not applicable.
-39-
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) 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 corporation
By: /s/ John S. Gates, Jr.
---------------------------------------------
John S. Gates, Jr., President
and Chief Executive Officer
(Principal Executive Officer)
By: /s/ Paul S. Fisher
---------------------------------------------
Paul S. Fisher, Executive Vice
President and Chief Financial Officer
(Principal Financial and Accounting Officer)
Pursuant to the requirements of the Securities Act of 1934, this report has
been signed by the following persons on behalf of the registrant in the
capaciies and on the dates indicated.
SIGNATURE NAME AND TITLE DATE
- --------- ---------------------- ---------------
/s/ Martin Barber Martin Barber, Chairman March 16, 1998
- ---------------------- and Trustee
/s/ John S. Gates, Jr. John S. Gates, Jr., President March 16, 1998
- ----------------------
Chief Executive Officer and
Trustee
/s/ Robert L. Stovall Robert L. Stovall, Vice March 16, 1998
- ---------------------- Chairman and Trustee
/s/ Nicholas C. Babson Nicholas C. Babson, Trustee March 16, 1998
- ----------------------
/s/ Alan D. Feld Alan D. Feld, Trustee March 16, 1998
- ----------------------
/s/ John J. Kinsella John J. Kinsella, Trustee March 16, 1998
- ----------------------
/s/ Thomas E. Robinson Thomas E. Robinson, March 16, 1998
- ---------------------- Trustee
-40-
<PAGE>
CENTERPOINT PROPERTIES TRUST
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
AND FINANCIAL STATEMENT SCHEDULES
<TABLE>
PAGE(S)
<S> <C>
Consolidated Financial Statements:
Report of Independent Accountants................................ F-2
Consolidated Balance Sheets as of December 31, 1997 and 1996..... F-3
Consolidated Statements of Operations for the years ended
December 31, 1997, 1996 and 1995............................... F-4
Consolidated Statements of Shareholders' Equity for
the years ended December 31, 1997, 1996 and 1995............... F-5
Consolidated Statements of Cash Flows for the years ended
December 31, 1997, 1996 and 1995............................... F-6
Notes to Consolidated Financial Statements............................ F-7 to F-18
Financial Statement Schedules:
Schedule II - Valuation and Qualifying Accounts................. F-19
Schedule III - Real Estate and Accumulated Depreciation.......... F-20 to F-25
</TABLE>
F-1
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Shareholders
CenterPoint Properties Trust
We have audited the accompanying consolidated balance sheets of
CenterPoint Properties Trust and Subsidiaries (formerly CenterPoint
Properties Corporation) as of December 31, 1997 and 1996, and the related
consolidated statements of operations, shareholders' equity and cash flows
for each of the three years in the period ended December 31, 1997. These
financial statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based
on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free
of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements.
An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, the financial statements referred to above present
fairly, in all material respects, the consolidated financial position of
CenterPoint Properties Trust and Subsidiaries as of December 31, 1997 and
1996, and the consolidated results of their operations and their cash flows
for each of the three years in the period ended December 31, 1997, in
conformity with generally accepted accounting principles.
COOPERS & LYBRAND L.L.P.
Chicago, Illinois
February 10, 1998
F-2
<PAGE>
CENTERPOINT PROPERTIES TRUST AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT FOR SHARE INFORMATION)
ASSETS
<TABLE>
<CAPTION>
DECEMBER 31,
1997 1996
-------- -------
<S> <C> <C>
Assets:
Investment in real estate:
Land and leasehold $123,014 $72,004
Buildings 414,314 284,626
Building improvements 64,372 43,583
Furniture, fixtures, and equipment 13,912 10,429
Construction in progress 26,034 18,392
-------- -------
641,646 429,034
Less accumulated depreciation and amortization 44,352 30,206
-------- -------
Net investment in real estate 597,294 398,828
Cash and cash equivalents 1,652 1,070
Restricted cash and cash equivalents 36,509 977
Tenant accounts receivable, net 12,416 10,193
Mortgage notes receivable 30,297 22,665
Investment in and advances to affiliate 11,143 9,673
Prepaid expenses and other assets 3,303 3,630
Deferred expenses, net 6,661 4,170
-------- -------
$699,275 $451,206
-------- -------
-------- -------
</TABLE>
LIABILITIES AND SHAREHOLDERS' EQUITY
<TABLE>
<CAPTION>
<S> <C> <C>
Liabilities:
Mortgage notes payable $106,295 $114,451
Line of credit 97,700 46,100
Bonds payable 55,000
Convertible subordinated debentures payable 11,740 14,380
Notes payable 33 2,418
Preferred dividends payable 901
Accounts payable 10,311 4,130
Accrued expenses 24,410 17,914
Rents received in advance and security deposits 4,759 3,700
-------- -------
311,149 203,093
-------- -------
Commitments and contingencies
Shareholders' equity:
Preferred shares of beneficial interest, $.001 par value, 10,000,000 shares
authorized; 3,000,000 and 0 issued and outstanding, respectively,
having a liquidation preference of $25 per share ($75,000) 3
Common shares of beneficial interest, $.001 par value, 47,727,273 shares
authorized; 16,891,951 and 14,333,231 issued and outstanding, respectively 17 14
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 420,743 276,142
Retained earnings (deficit) (32,142) (27,726)
Unearned compensation - restricted stock (497) (319)
-------- -------
Total shareholders' equity 388,126 248,113
-------- -------
$699,275 $451,206
-------- -------
-------- -------
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-3
<PAGE>
CENTERPOINT PROPERTIES TRUST AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT FOR SHARE INFORMATION)
<TABLE>
<CAPTION> YEARS ENDED DECEMBER 31,
------------------------
1997 1996 1995
------- ------- -------
<S> <C> <C> <C>
Revenue:
Operating and investment revenue:
Minimum rents $57,519 $42,107 $34,066
Straight-line rents 2,732 2,087 1,349
Expense reimbursements 18,228 11,413 8,781
Mortgage interest income 2,146 1,514 84
------- ------- -------
Total operating and investment revenue 80,625 57,121 44,280
------- ------- -------
Other revenue:
Real estate fee income 3,159 5,140 2,639
Equity in net income of affiliate 2,174 1,069 33
------- ------- -------
Total other revenue 5,333 6,209 2,672
------- ------- -------
Total revenue 85,958 63,330 46,952
------- ------- -------
Expenses:
Real estate taxes 17,091 11,868 7,719
Property operating and leasing 12,091 8,883 7,055
General and administrative 3,105 2,567 2,150
Depreciation and amortization 15,278 10,648 8,456
Interest expense:
Interest incurred, net 10,071 9,865 11,562
Amortization of deferred financing costs 800 1,127 1,150
------- ------- -------
Total expenses 58,436 44,958 38,092
------- ------- -------
Operating income 27,522 18,372 8,860
Other income (expense) 108 (100) (16)
------- ------- -------
Income before extraordinary item 27,630 18,272 8,844
Extraordinary item, early extinguishment of debt (3,331) (632)
------- ------- -------
Net income 27,630 14,941 8,212
Preferred dividends (901) (947) (1,002)
------- ------- -------
Net income available to common shareholders $26,729 $13,994 $7,210
------- ------- -------
------- ------- -------
Per share net income available to common shareholders
before extraordinary item:
Basic $1.43 $1.25 $0.85
Diluted $1.41 $1.22 $0.84
Per share net income available to common shareholders:
Basic $1.43 $1.01 $0.78
Diluted $1.41 $0.99 $0.77
Distributions per common share $1.68 $1.62 $1.56
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-4
<PAGE>
CENTERPOINT PROPERTIES TRUST AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
(IN THOUSANDS, EXCEPT FOR SHARE INFORMATION)
<TABLE>
<CAPTION>
CLASS B COMMON
PREFERRED SHARES SHARES COMMON SHARES ADDITIONAL RETAINED
---------------- ----------------- -----------------
NUMBER NUMBER NUMBER PAID-IN EARNINGS
OF SHARES AMOUNT OF SHARES AMOUNT OF SHARES AMOUNT CAPITAL (DEFICIT)
--------- ------ --------- ------ --------- ------ ------- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Balance, January 1, 1995 0 $0 0 $0 6,415,883 $6 $69,871 ($10,861)
Issuance of common shares,
less $5,160 of offering costs 2,736,700 3 45,446
Shares issued for purchase of property 48,261 1,122
Issuance of convertible preferred shares
in private offering 2,272,727 2 49,998
Conversion of convertible subordinated
debentures to common shares 1,137,165 1 20,315
Shares issued for stock options exercised 600 11
Incentive share awards 17,499 341
Director share awards 2,850 57
Amortization of unearned compensation
Distributions declared on common shares,
$1.56 per share (14,951)
Distributions declared on convertible
preferred shares, $0.44 per share (1,002)
Net income 8,212
--------- ------ --------- ------ --------- ------ ------- ---------
Balance, December 31, 1995 2,272,727 2 0 0 10,358,958 10 187,161 (18,602)
Issuance of common shares,
less $2,387 of offering costs 3,450,000 3 79,547
Conversion of convertible preferred shares
to Class B common shares (2,272,727) (2) 2,272,7272 2
Conversion of convertible subordinated
debentures to common shares 485,680 1 8,683
Shares issued for stock options exercised 27,787 508
Incentive shares awards 8,290 186
Director shares awards 2,516 57
Amortization of unearned compensation
Distributions declared on common shares,
$1.62 per share (20,277)
Distributions declared on convertible
preferred shares, $0.42 per share (947)
Distributions declared on Class B common
shares, $1.25 per share (2,841)
Net income 14,941
--------- ------ --------- ------ --------- ------ ------- ---------
Balance, December 31, 1996 0 0 2,272,727 2 14,333,231 14 276,142 (27,726)
Issuance of common shares,
less $4,054 of offering costs 2,250,000 2 66,819
Issuance of preferred shares,
less $3,101 of offering costs 3,000,000 3 71,896
Conversion of convertible subordinated
debentures to common shares 144,640 2,564
Shares issued for stock options exercised 149,715 1 2,873
Incentive share awards 12,444 392
Director share awards 1,921 57
Amortization of unearned compensation
Distributions declared on common shares,
$1.68 per share (27,221)
Distributions declared on preferred shares,
$0.30 per share (901)
Distributions declared on Class B common
shares, $1.73 per share (3,924)
Net income 27,630
--------- ------ --------- ------ --------- ------ ------- ---------
Balance, December 31, 1997 3,000,000 $3 2,272,727 $2 16,891,951 $17 $420,743 ($32,142)
--------- ------ --------- ------ --------- ------ ------- ---------
--------- ------ --------- ------ --------- ------ ------- ---------
</TABLE>
<TABLE>
<CAPTION>
UNEARNED
COMPENSATION- TOTAL
RESTRICTED SHAREHOLDERS'
SHARES EQUITY
------- ---------
<S> <C> <C>
Balance, January 1, 1995 $0 $59,016
Issuance of common shares,
less $5,160 of offering costs 45,449
Shares issued for purchase of property 1,122
Issuance of convertible preferred shares
in private offering 50,000
Conversion of convertible subordinated
debentures to common shares 20,316
Shares issued for stock options exercised 11
Incentive share awards (341)
Director share awards 57
Amortization of unearned compensation 90 90
$1.56 per share (14,951)
Distributions declared on convertible
preferred shares, $0.44 per share (1,002)
Net income 8,212
------- ---------
Balance, December 31, 1995 (251) 168,320
Issuance of common shares,
less $2,387 of offering costs 79,550
Conversion of convertible preferred shares
to Class B common shares
Conversion of convertible subordinated
debentures to common shares 8,684
Shares issued for stock options exercised 508
Incentive shares awards (186)
Director shares awards 57
Amortization of unearned compensation 118 118
Distributions declared on common shares,
$1.62 per share (20,277)
Distributions declared on convertible
preferred shares, $0.42 per share (947)
Distributions declared on Class B common
shares, $1.25 per share (2,841)
Net income 14,941
------- ---------
Balance, December 31, 1996 (319) 248,113
Issuance of common shares,
less $4,054 of offering costs 66,821
Issuance of preferred shares,
less $3,101 of offering costs 71,899
Conversion of convertible subordinated
debentures to common shares 2,564
Shares issued for stock options exercised 2,874
Incentive share awards (392)
Director share awards 57
Amortization of unearned compensation 214 214
Distributions declared on common shares,
$1.68 per share (27,221)
Distributions declared on preferred shares,
$0.30 per share (901)
Distributions declared on Class B common
shares, $1.73 per share (3,924)
Net income 27,630
------- ---------
Balance, December 31, 1997 ($497) $388,126
------- ---------
------- ---------
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-5
<PAGE>
CENTERPOINT PROPERTIES TRUST AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
------------------------
1997 1996 1995
------- ------- ------
<S> <C> <C> <C>
Cash flows from operating activities:
Net income $27,630 $14,941 $8,212
Adjustments to reconcile net income to net
cash provided by operating activities:
Extraordinary item-early extinguishment of debt 3,331 632
Bad debts 279 462 433
Depreciation 14,275 10,199 8,161
Amortization of deferred financing costs 800 1,127 1,150
Other amortization 1,003 449 295
Straight-line rents (2,732) (2,087) (1,349)
Incentive stock awards 271 175 147
Interest on converted debentures 12 77 235
Equity in net income of affiliate (2,174) (1,069) (33)
(Gain) / loss on disposal of real estate (140) 60
Net changes in:
Tenant accounts receivable (973) 197 (2,654)
Prepaid expenses and other assets (205) (937) (293)
Rents received in advance and security deposits 317 589 119
Accounts payable and accrued expenses 1,048 2,036 1,418
------- ------- ------
Net cash provided by operating activities 39,411 29,552 16,473
------- ------- ------
Cash flows from investing activities:
Change in restricted cash and cash equivalents (35,532) 325 5
Acquisition of real estate (121,661) (85,268) (61,881)
Construction in progress (26,625) (17,063)
Improvements and additions to properties (42,441) (12,575) (5,031)
Disposition of real estate 13,510 18,991 2,384
Change in deposits on acquisitions 1,303 1,037 (502)
Issuance of mortgage notes receivable (16,115) (18,523) (9,588)
Repayment of mortgage notes receivable 5,670 5,543
Investment in and advances to affiliate (19,639) (1,048) (5,324)
Receivables from affiliates and employees (3) 106 274
Additions to deferred expenses (3,803) (3,079) (2,893)
------- ------- ------
Net cash used in investing activities (245,336) (111,554) (82,556)
------- ------- ------
Cash flows from financing activities:
Proceeds from sale of preferred shares 75,000 50,000
Proceeds from sale of common shares 73,749 82,445 50,620
Offering costs paid (7,155) (2,387) (4,386)
Proceeds from line of credit 211,650 46,100
Repayment of line of credit (160,050)
Proceeds from issuance of bonds payable 55,000 45,882 50,000
Repayments of mortgage notes payable (8,156) (62,705) (63,930)
Repayments of notes payable (2,385) (123) (112)
Distributions (31,145) (29,017) (13,650)
Conversion of convertible subordinated
debentures payable (1) (1) (1)
------- ------- ------
Net cash provided by financing activities 206,507 80,194 68,541
------- ------- ------
Net change in cash and cash equivalents 582 (1,808) 2,458
Cash and cash equivalents, beginning of the year 1,070 2,878 420
------- ------- ------
Cash and cash equivalents, end of year $1,652 $1,070 $2,878
------- ------- ------
------- ------- ------
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements
F-6
<PAGE>
CENTERPOINT PROPERTIES TRUST AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT FOR PER SHARE DATA)
1. ORGANIZATION
CenterPoint Properties Trust (the "Company"), a Maryland trust, and its
subsidiaries, owns and operates primarily warehouse/industrial properties in
the metropolitan Chicago area and operates as a real estate investment trust.
On October 15, 1997, the Company completed a reorganization pursuant to
which it converted from a Maryland corporation to a Maryland real estate
investment trust by means of a merger of CenterPoint Properties Corporation
(the "Corporation") with and into the Company, which prior to the merger was
a wholly-owned subsidiary of the Corporation, with the Company as the
surviving entity. Pursuant to a Plan of Reorganization, which was approved
by the stockholders of the Corporation at a Special Meeting of Stockholders
held on October 1, 1997, each issued and outstanding share of common stock of
the corporation, par value $.001 per share (the "Common Stock"), was
converted into one common share of beneficial interest in the Company, par
value $.001 per share (the "Common Shares"), each outstanding share of Class
B common stock of the Corporation was converted into one Class B common share
of beneficial interest (the "Class B Common Shares") in the Company; and the
outstanding principal amount of the Corporation's 8.22% Convertible
Subordinated Debentures due 2004 was assumed by the Company and converted
into the same principal amount of 8.22% Convertible Subordinated Debentures
due 2004 of the Company.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
REVENUE RECOGNITION
Minimum rents are recognized on a straight-line basis over the terms of
the respective leases. Unbilled rents receivable represents the amount that
straight-line rental revenue exceeds rents due under the lease agreements.
Unbilled rents receivable, included in tenants accounts receivable, at
December 31, 1997 and 1996 were $5,075 and $4,099, respectively. Recoveries
from tenants for taxes, insurance and other property operating expenses are
recognized in the period the applicable costs are incurred.
Real estate fee income includes tenant lease termination fees of $1,894
in 1997 and $1,200 in 1995.
The Company provides an allowance for doubtful accounts against the
portion of accounts receivable which is estimated to be uncollectible.
Accounts receivable in the consolidated balance sheets are shown net of an
allowance for doubtful accounts of $272 and $748 as of December 31, 1997 and
1996, respectively.
DEFERRED EXPENSES
Deferred expenses consist principally of financing fees and leasing
commissions. Leasing commissions are amortized on a straight-line basis over
the terms of the respective lease agreements ranging from 1 to 8 years.
Financing costs are amortized over the terms of the respective loan
agreements. Deferred expenses relating to debenture conversions of $86 and
$257 were charged to paid-in capital in 1997 and 1996, respectively, and
fully amortized deferred expenses of $1,207 and $57 were written off in 1997
and 1996, respectively. The balances are as follows:
F-7
<PAGE>
CENTERPOINT PROPERTIES TRUST AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT FOR PER SHARE DATA)
<TABLE>
<CAPTION>
DECEMBER 31,
------------
1997 1996
------ ------
<S> <C> <C>
Deferred financing costs, net of accumulated
amortization of $1,081 and $823 $2,766 $2,019
Deferred leasing and other costs, net of accumulated
amortization of $1,478 and $1,387 3,895 2,151
------ ------
$6,661 $4,170
------ ------
------ ------
</TABLE>
PROPERTIES
Real estate assets are stated at cost. Interest and real estate taxes
and other directly related expenses incurred during construction periods are
capitalized and amortized on the same basis as the related assets.
Depreciation expense is computed using the straight-line method based upon
the following estimated useful lives:
<TABLE>
<CAPTION>
YEARS
-----
<S> <C>
Building and improvements 31.5 and 40
Land improvements 15
Furniture, fixtures and equipment 4 to 15
</TABLE>
Construction allowances for tenant improvements are capitalized and
amortized over the terms of each specific lease. Repairs and maintenance are
charged to expense when incurred. Expenditures for improvements are
capitalized. When assets are sold or retired, their cost and related
accumulated depreciation are removed from the accounts with the resulting
gains or losses reflected in operations.
The Company annually reviews the recoverability of the carrying value of
its investment in real estate. The reviews are conducted by estimating the
fair value of its properties generally by analysis and comparison of the
capitalized values of the expected net operating cash flows of the
properties. If management determines that an impairment of property has
occurred, the carrying value of such property will be reduced to its fair
value.
CASH AND CASH EQUIVALENTS
For purposes of the consolidated financial statements, the Company
considers all liquid investments purchased with original maturities of three
months or less to be cash equivalents.
INVESTMENT IN AND ADVANCES TO AFFILIATE
The Company accounts for its investment in affiliate using the equity
method whereby its cost of the investment is adjusted for its share of equity
in net income or loss from the date of acquisition and reduced by
distributions received.
ESTIMATES
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosures of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
INCOME TAXES
The Company qualifies as a real estate investment trust ("REIT") under
sections 856-860 of the Internal Revenue Code beginning January 1, 1994. In
order to qualify as a REIT, the Company is required to distribute at
F-8
<PAGE>
CENTERPOINT PROPERTIES TRUST AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT FOR PER SHARE DATA)
least 95% of its taxable income to shareholders and to meet certain asset and
income tests as well as certain other requirements. As a REIT, the Company
will generally not be liable for Federal income taxes, provided it satisfies
the necessary distribution requirements. The distributions declared and paid
for the years ended December 31, 1997, 1996 and 1995 represent a return of
capital of approximately 12%, 51% and 54%, respectively.
EARNINGS PER COMMON SHARE
In February 1997, the Financial Accounting Standards Board issued
Statement No. 128, "Earnings per Share," which became effective for both
interim and annual financial statement periods ending after December 15,
1997. As required by this statement, the Company adopted the new standards
for computing and presenting earnings per share ("EPS") for 1997, and for all
prior period earnings per share data presented. Following are the
reconciliations of the numerators and denominators of the basic and diluted
EPS.
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
------------------------
1997 1996 1995
------- ------- ------
<S> <C> <C> <C>
Numerators:
Income before extraordinary items $27,630 $18,272 $8,844
Dividends on preferred shares (901) - -
Dividends on convertible preferred stock - (947) (1,002)
---------- ---------- ---------
Income available to common shareholders
before extraordinary item - for basic and diluted EPS $26,729 $17,325 $7,842
Extraordinary items - (3,331) (632)
---------- ---------- ---------
Net income available to common shareholders - for
basic and diluted EPS $26,729 $13,994 $7,210
---------- ---------- ---------
---------- ---------- ---------
Denominators:
Weighted average common shares outstanding - for
basic EPS 18,634,850 13,890,049 9,236,612
Effect of dilutive securities - options 312,280 285,913 121,810
---------- ---------- ---------
Weighted average common shares outstanding - for
diluted EPS 18,947,130 14,175,962 9,358,422
---------- ---------- ---------
---------- ---------- ---------
</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 1997, 1996 and 1995 would be anti
dilutive. The assumed conversion of the convertible preferred stock in 1996
and 1995 would also be anti dilutive.
RECLASSIFICATIONS
Certain items presented in the consolidated statements of operations for
prior periods have been reclassified to conform with current classifications
with no effect on results of operations.
ACCOUNTING PRONOUNCEMENTS
In June 1997, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards ("SFAS") No. 130, "Reporting Comprehensive
Income" and SFAS No. 131, "Disclosures About Segments of an Enterprise and
Related Information." Both SFAS No. 130 and SFAS No. 131 are effective for
F-9
<PAGE>
CENTERPOINT PROPERTIES TRUST AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT FOR PER SHARE DATA)
financial statements for years beginning after December 15, 1997. SFAS No.
130 requires the reporting of comprehensive income beginning 1998 and SFAS
No. 131 establishes standards for publicly-held business enterprises to
report information about operating segments in annual financial statements
and requires that these enterprises report selected information about
operating segments in interim financial reports issued to shareholders. The
Company plans to adopt SFAS No. 130 and No. 131 in 1998.
3. PROPERTY ACQUISITIONS AND DISPOSITIONS
During each of the years ended December 31, 1997 and 1996, the Company
acquired twenty-one and fifteen properties, respectively, consisting
principally of single-tenant buildings for an aggregate amount of
approximately $124,923 and $103,532, respectively. Substantially all
properties were acquired in singular transactions, and except for one
transaction in 1997 and three transactions in 1996, were acquired from
unrelated third parties. The properties were funded with borrowings under
the Company's lines of credit, proceeds from properties sold during 1997 and
1996, from proceeds of public offerings of the Company's common shares
completed on July 2, 1996 and March 6, 1997, and from proceeds of a public
offering of the Company's preferred shares completed on November 10, 1997.
The acquisitions have been accounted for utilizing the purchase method of
accounting, and accordingly, the results of operations of the acquired
properties are included in the consolidated statements of operations from the
dates of acquisition.
The Company disposed of three properties during the year ended December
31, 1997 and eight properties during the year ended December 31, 1996. In
1997 and 1996, one and five of the properties, respectively, were disposed of
in transactions that qualify as a tax-free exchange under applicable
provisions of the Internal Revenue Code.
Due to the effect of the July, 1996 public offering, the March, 1997
public offering, the November, 1997 public offering and the acquisitions and
dispositions of properties, the historical results are not indicative of the
future results of operations. The following unaudited pro forma information
is presented as if the 1995 and 1996 acquisitions and dispositions of
properties, the July, 1996 public offering, and the corresponding repayment
of certain debt had occurred on January 1, 1995, and as if the March, 1997
public offering, the November 1997 public offering, the corresponding
repayment of certain debt, and the 1997 acquisitions and dispositions had all
occurred on January 1, 1996 (or on the date the property first commenced
operations with a third party tenant, if later). The unaudited pro forma
information is based upon the historical consolidated statements of
operations before any extraordinary items and does not purport to present
what actual results would have been had the transactions, in fact, occurred
at the beginning of 1996 or 1995, or to project results for any future period.
<TABLE>
<CAPTION>
PROFORMA FOR THE YEARS
ENDED DECEMBER 31, (UNAUDITED)
-------------------------------------
1997 1996 1995
------- ------- -------
<S> <C> <C> <C>
Total revenues $91,669 $80,294 $57,411
Total expenses 59,108 50,103 41,764
------- ------- -------
Income before extraordinary item 32,561 30,191 15,647
Preferred dividends (6,360) (7,307) (1,002)
------- ------- -------
Income available to common shareholders
before extraordinary item $26,201 $22,884 $14,645
------- ------- -------
------- ------- -------
Per share income available to common shareholders
before extraordinary item:
Basic $1.41 $1.28 $1.14
Diluted $1.38 $1.26 $1.13
</TABLE>
4. MORTGAGE NOTES RECEIVABLE
F-10
<PAGE>
CENTERPOINT PROPERTIES TRUST AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT FOR PER SHARE DATA)
As of December 31, 1997 and 1996, the Company had notes receivable
outstanding of $30,297 and $22,665, respectively, consisting of mortgage
loans and construction loans. The notes bear interest from 8.25% to 11.25%
and mature from March, 1998 to June, 2010.
As of December 31, 1997 mortgage notes receivable mature as follows:
<TABLE>
<CAPTION>
<S> <C>
1998........................................................ $ 20,646
1999........................................................ 24
2000........................................................ 8,782
2001........................................................ 41
2002........................................................ 50
Thereafter.................................................. 754
-------
Total.................................................. $30,297
-------
-------
</TABLE>
Based on borrowing rates available at the end of 1997 and 1996 for
mortgage loans with similar terms and maturities, the fair value of the
mortgage notes receivable approximates the carrying values.
Land and buildings have been pledged as collateral for the above notes
receivable.
5. INVESTMENT IN AND ADVANCES TO AFFILIATE
The Company holds approximately 99% of the economic interest in
CenterPoint Realty Services Corporation ("CRS"). To maintain compliance with
limitations on income from business activities received by REITs and their
qualified REIT subsidiaries, the Company holds its interest in CRS in the
form of non-voting equity ownership which qualifies as an unconsolidated
taxable subsidiary.
As of December 31, 1997 and 1996, the Company had an outstanding balance
due from CRS of $7,868 and $6,333, respectively, under a demand loan with an
interest rate of 8.125%. The proceeds of the loans were required for
development projects.
Summarized financial information of CRS is shown below.
Balance Sheets:
<TABLE>
<CAPTION>
DECEMBER 31,
------------
1997 1996
---- ----
<S> <C> <C>
Assets:
Investment in real estate $9,405 $10,024
Notes receivable 1,559
Other assets 832 1,050
------- -------
$11,796 $11,074
------- -------
------- -------
Liabilities:
Note payable to affiliate $7,868 $6,333
Other liabilities 658 3,566
------- -------
8,526 9,899
Stockholder's equity 3,270 1,175
------- -------
$11,796 $11,074
------- -------
------- -------
</TABLE>
Statements of Operations:
F-11
<PAGE>
CENTERPOINT PROPERTIES TRUST AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT FOR PER SHARE DATA)
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
------------------------
1997 1996
---- ----
<S> <C> <C>
Total Income $45,794 $16,000
Operating Expenses (42,269) (14,261)
Provision for income taxes (1,329) (659)
------- -------
Net income $2,196 $1,080
------- -------
------- -------
</TABLE>
6. MORTGAGE NOTES PAYABLE
MORTGAGE NOTES PAYABLE
As of December 31, 1997 and 1996, the Company had mortgage notes payable
outstanding of $84,075 and $92,231, respectively. The mortgage notes are
collateralized by two designated pools of properties in both 1997 and 1996
and two and three other individual properties, at December 31, 1997 and 1996,
respectively.
One of the designated pool of properties consists of 20 properties
collateralizing $50,000 bonds at December 31, 1997 and 1996, bearing interest
of 7.62% and maturing in November, 2002. The second designated pool of
properties consists of 18 properties collateralizing $30,000 of debt at
December 31, 1997 and 1996, bearing interest of 6.91% and maturing in May,
1999.
The other mortgage notes payable aggregate $4,075 and $12,231 at
December 31, 1997 and 1996, respectively, and bear interest ranging from 6.9%
to 8.0%. In October, 1997, $8,156 of mortgage notes were repaid. The
mortgage notes outstanding as of December 31, 1997, mature from November,
1998 to October, 2000.
Revenue Bonds
As of December 31, 1997 and 1996, the Company had revenue bonds,
consisting of Economic Development Revenue Bonds issued by the City of Gary,
Indiana ($22,220 outstanding at December 31, 1997 and 1996) and
Variable/Fixed Rate Demand Special Facilities Airport Revenue Bonds issued by
the City of Chicago, Illinois ($55,000 outstanding at December 31, 1997).
The Economic Development Revenue Bonds issued by the City of Gary,
Indiana are collateralized by a letter of credit. The letter of credit
contains certain financial covenants pertaining to the tangible net worth and
liabilities in relation to portfolio value of the Company. In April 1996,
the bonds outstanding at December 31, 1995 were refunded. The new bonds were
issued in two series; $20,540,000 tax exempt and $1,680,000 taxable, bearing
interest in the Weekly Adjustable Interest Rate Mode at a rate determined by
the Remarketing Agent (4.20% on the tax exempt bonds and 6.10% on the taxable
bonds at December 31, 1997). The new bonds require monthly payments of
interest only and mature in March, 2031.
The Variable/Fixed Rate Demand Special Facilities Airport Revenue Bonds
issued by the City of Chicago, Illinois are enhanced by a letter of credit.
The letter of credit contains certain financial convenants pertaining to
consolidated net worth. The tax-exempt bonds bear initial interest at a
Weekly Adjustable Interest Rate, which from time to time may be changed by
the Company, at a rate determined by the Remarketing Agent (3.95% at December
31, 1997). The bonds require monthly payments of interest only and mature in
September, 2032. Of the original proceeds, the Company holds $34,593 in
escrow at December 31, 1997 for future construction costs.
F-12
<PAGE>
CENTERPOINT PROPERTIES TRUST AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT FOR PER SHARE DATA)
As of December 31, 1997 mortgage notes mature as follows:
<TABLE>
<CAPTION>
<S> <C>
1998..................................................... $ 3,500
1999..................................................... 30,000
2000..................................................... 575
2001..................................................... 0
2002..................................................... 50,000
Thereafter............................................... 77,220
--------
Total............................................... $161,295
--------
--------
</TABLE>
Based on borrowing rates available to the Company at the end of 1997 and
1996 for mortgage loans with similar terms and maturities, the fair value of
the mortgage notes payable approximates the carrying values.
Land, buildings and equipment related to such mortgages with an
aggregate net book value of approximately $199,000 at December 31, 1997 have
been pledged as collateral for the above debt.
7. LINE OF CREDIT
In October, 1996, the Company obtained a $135 million unsecured line of
credit, and subsequently increased the line to $150 million in November 1997.
The current interest rate is LIBOR plus .80% for LIBOR borrowings (a range of
6.8% to 6.863% at December 31, 1997) and Prime Rate (8.5% at December 31,
1997) for other borrowings. The Company may receive competitive bids for up
to half its commitment (a range of 6.60% to 6.75% at December 31, 1997). The
line requires payments of interest only when LIBOR contracts mature and
monthly on borrowings under Prime Rate. The line matures on October 24,
1999. There is a fee of 1/5% per year on the total line commitment. At
December 31, 1997 and 1996, the Company had $52,300 and $88,900,
respectively, available under the line. As the line of credit is at a
variable rate, the carrying value approximates fair value.
8. EXTRAORDINARY ITEM
In 1996 and 1995, the Company incurred losses of $3,331 (per share -
basic $0.24; diluted $0.23) and $632 (per share - basic $0.07; diluted
$0.07), respectively, representing a write off of unamortized deferred
financing costs as a result of early extinguishment of certain debt
obligations.
9. CONVERTIBLE SUBORDINATED DEBENTURES PAYABLE
Concurrent with the initial public offering in December, 1993, the
Company issued $58,500 of convertible subordinated debentures ("Debentures")
due 2004. At December 31, 1997 and 1996, $11,740 and $14,380 of debentures
were outstanding, respectively. The Debentures are unsecured general
obligations of the Company and are subordinate to all existing and
subsequently incurred indebtedness of the Company. The Debentures are
optionally redeemable by the Company, at par, commencing December 4, 1998.
Holders may convert the Debentures at any time, without premium, to Common
Shares of the Company at a conversion price of $18.25 per share, subject to
certain adjustments. The Debentures bear interest at 8.22% per annum,
payable semiannually on January 15 and July 15 of each year, commencing July
15, 1994. During 1997, 1996 and 1995 debentures totaling $2,640, $8,864 and
$20,754, respectively, were converted into shares of common stock. Based
principally on the conversion feature and share price of common stock at the
end of 1997 and 1996, the fair value of the outstanding Debentures
approximates $22,595 and $25,805, respectively.
10. RELATED PARTY TRANSACTIONS
In December 1997, the Company purchased a fully leased building, located
in Des Plaines, Illinois, from a partnership, in which one of the Company's
Senior Officers and a Company Director were limited partners, for
F-13
<PAGE>
CENTERPOINT PROPERTIES TRUST AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT FOR PER SHARE DATA)
approximately $4.7 million. In June, 1996, the Company acquired three
properties in which the Company's Chief Operations Officer and Director, and
the Company's Executive Vice President of Acquisitions during 1996 had an
interest and, in which they, continue to own an insignificant interest in two
of the properties. The three properties were purchased for an aggregate
amount of approximately $24.6 million. The above transactions satisfied the
Company's investment criteria and were approved by the Company's independent
directors.
Notes payable at December 31, 1997 and 1996 includes amounts payable to
related parties as a consequence of properties acquired and settlement of tax
reimbursement obligations of the Company during 1996 totaling $33 and $483,
respectively.
11. SHAREHOLDERS' EQUITY
COMMON SHARES OF BENEFICIAL INTEREST
As of December 31, 1997 the Company has reserved 584,229 Common Shares
for future issuance under the 1993 Stock Option Plan, 119,596 Common Shares
for future issuance under the 1995 Restricted Stock Incentive Plan, 67,713
Common Shares for future issuance under the 1995 Director Stock Plan, 643,288
Common Shares for issuance upon the conversion of the Debentures and
1,000,000 Common Shares for future issuance under the dividend reinvestment
and stock purchase plan.
CLASS B COMMON SHARES OF BENEFICIAL INTEREST
On September 22, 1995, the Company completed a $50 million private
equity placement of non-voting preferred shares of beneficial interest. In
May, 1996, the preferred shares of beneficial interest automatically
converted, on a share for share basis, to non-voting Class B Common Shares,
upon shareholder approval of an amendment to the Company's charter permitting
non-voting Class B Common Shares at the Company's annual meeting. The
distribution on the non-voting shares is equal to the distribution paid on
the voting shares of the Company plus an additional $.0468 per share. Unless
previously converted, after three years, the shares will be converted to
voting common shares on a share for share basis up to 4.9 percent of the
Company's then outstanding voting shares with all shares to fully convert
within ten years. As the shares convert to voting common, the distribution
paid shall be the same as all other voting common shares.
PREFERRED SHARES OF BENEFICIAL INTEREST
On November 10, 1997, the Company issued 3 million shares of 8.48%
Series A Cumulative Redeemable Preferred Shares of Beneficial Interest
("Preferred Shares") at a purchase price of $25 per share. Dividends on the
Preferred Shares are cumulative from the date of issuance and payable
quarterly commencing on January 30, 1998. The payment of dividends and
amounts upon liquidation will rank senior to the Common Shares and Class B
Common Shares, which are the only other shares of the Company currently
outstanding. The Preferred Shares are not redeemable prior to October 30,
2002. On or after October 30, 2002 the Preferred Shares will be redeemable
for cash at the option of the Company, in whole or part, at the redemption
price of $25 per share, plus dividends accrued and unpaid to the redemption
date. The Preferred Shares are not convertible into or exchangeable for any
other property or securities of the Company.
RESTRICTED STOCK INCENTIVE PLAN
Under the terms of the 1995 Restricted Stock Incentive Plan, adopted in
1995 the Company initially reserved 150,000 common shares for future grants.
In 1997, 1996 and 1995 certain key employees were granted 12,444, 8,290 and
9,670 restricted shares, respectively. Shares were awarded in the name of
each of the participants, who have all the rights of other common
shareholders, subject to certain restrictions and forfeiture provisions.
Restrictions on the shares expire no more than eight years after the date of
award, or earlier if certain performance targets are met.
F-14
<PAGE>
CENTERPOINT PROPERTIES TRUST AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT FOR PER SHARE DATA)
Under the terms of the Company's Restricted Stock Grant Agreements,
certain key employees were granted 7,829 restricted shares of the Company's
common shares in 1995. Shares were awarded in the name of each of the
employees, who have all the rights of other common shareholders, subject to
certain restrictions and for future provisions. Restrictions on the shares
expired one year after the date of the award.
Unearned compensation is recorded at the date of awards based on the
market value of shares. Unearned compensation, which is shown as a separate
component of shareholders' equity, is being amortized to expense over the
eight year vesting period. The amount amortized to expense during 1997, 1996
and 1995 was $214, $118 and $90, respectively.
DIRECTOR STOCK PLAN
The 1995 Director Stock Plan is for an aggregate of 75,000 common shares
and provides that each independent director, upon election or re-election to
the Board, may elect to receive 50% of his annual retainer fee in Common
Shares at the market price on such date. In 1997, 1996 and 1995, 1,921,
2,516 and 2,850 Common Shares were issued under this plan, respectively. In
connection with the issuance of such shares, $57, $57 and $57 was charged to
expense in 1997, 1996 and 1995, respectively.
12. STOCK OPTION PLAN
The Company has adopted the 1993 Stock Option Plan (the "Plan") and in
May, 1996, increased the maximum number of shares from 750,000 to 1,500,000
common shares of beneficial interest which may be granted for qualified and
non-qualified options. The Company adopted the Plan to provide additional
incentives to attract and retain directors, officers and key employees. The
Plan was amended in 1995 to provide that each independent director receive an
option for 3,000 common shares of beneficial interest at fair market value at
the time of being elected or re-elected to the Board. Options are to be
granted by the Compensation Committee of the Board of Directors. The term of
the option shall be fixed by the Compensation Committee, but no option shall
be exercisable more than 10 years after the date of grant.
The options granted are at fair market value on the date of grant, are
for 10 year terms and become exercisable in 20% annual increments after one
year from date of grant. Option activity for the three years ended December
31, 1997 is as follows:
<TABLE>
<CAPTION>
1997 1996 1995
---- ---- ----
WEIGHTED WEIGHTED WEIGHTED
AVERAGE AVERAGE AVERAGE
EXERCISE EXERCISE EXERCISE
SHARES PRICE SHARES PRICE SHARES PRICE
-------------------- ------------------ -------------------
<S> <C> <C> <C> <C>
Outstanding at beginning of year 683,480 $19.20 606,839 $18.59 494,460 $18.37
Granted 241,769 31.38 104,428 22,50 112,979 19.55
Exercised (149,715) 19.19 (27,787) 18.28 (600) 18.25
Expired (34,865) 24.73 - -
------- ------- -------
Outstanding at end of year 740,669 $22.92 683,480 $19.20 606,839 $18.59
------- ------- -------
------- ------- -------
Exercisable at end of year 327,137 282,784 189,084
Available for future grant at year end 584,229 791,133 145,561
Weighted average per share fair value of
options granted during the year $3.65 $2.43 $2.41
</TABLE>
F-15
<PAGE>
CENTERPOINT PROPERTIES TRUST AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT FOR PER SHARE DATA)
The fair value of each option grant was estimated on the date of grant
using the Black-Scholes option-pricing model with the following assumptions:
<TABLE>
<CAPTION>
1997 1996 1995
---- ---- ----
<S> <C> <C> <C>
Risk free interest rate 6.4% 6.1% 7.0%
Dividend yield 6.5% 6.5% 6.5%
Expected lives 6 years 6 years 6 years
Expected volatility 17.5% 17.4% 17.4%
</TABLE>
The following table summarized information about stock options at
December 31, 1997:
<TABLE>
<CAPTION>
OPTIONS OUTSTANDING OPTIONS EXERCISABLE
------------------- -------------------
WEIGHTED
AVERAGE WEIGHTED WEIGHTED
NUMBER REMAINING AVERAGE NUMBER AVERAGE
RANGE OF OUTSTANDING CONTRACTUAL EXERCISE EXERCISABLE EXERCISE
EXERCISE PRICE AT 12/31/97 LIFE PRICE AT 12/31/97 PRICE
-------------- ----------- ----------- -------- ----------- --------
<S> <C> <C> <C> <C> <C>
$18.25-$31.50 740,669 7.8 years $22.92 327,137 $18.66
</TABLE>
The Company has applied Accounting Principles Board Opinion No. 25 and
related interpretations in accounting for its Plan, accordingly, no
compensation costs have been recognized. Had compensation costs for the
Company's Plan been determined based on the fair value at the grant date for
options granted in 1997, 1996 and 1995 in accordance with the method required
by Statement of Financial Accounting Standards No. 123, the Company's net
income and net income per share would have been reduced to the pro forma
amounts as follows:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
(IN THOUSANDS, EXCEPT PER SHARE DATA)
-------------------------------------
1997 1996 1995
---- ---- ----
<S> <C> <C> <C>
Net income available to common shareholders
As reported $26,729 $13,994 $7,210
Pro forma 26,591 13,901 7,169
Per share net income available to common shareholders
As reported
Basic 1.43 1.01 0.78
Diluted 1.41 0.99 0.77
Pro forma
Basic 1.43 1.00 0.78
Diluted 1.40 0.98 0.77
</TABLE>
13. FUTURE RENTAL REVENUES
Under existing noncancelable operating lease agreements as of December
31, 1997, tenants of the warehouse/industrial properties are committed to pay
in aggregate the following minimum rentals:
F-16
<PAGE>
CENTERPOINT PROPERTIES TRUST AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT FOR PER SHARE DATA)
<TABLE>
<CAPTION>
<S> <C>
1998 . . . . . . . . . . . $ 60,765
1999 . . . . . . . . . . . 52,448
2000 . . . . . . . . . . . 43,926
2001 . . . . . . . . . . . 35,683
2002 . . . . . . . . . . . 29,339
Thereafter . . . . . . . . 88,670
--------
Total . . . . . . . . . $310,831
--------
--------
</TABLE>
At December 31, 1997, 630 of the total 682 apartments available for
rental at the Lakeshore Dunes property were leased. Lease terms are
generally for one year.
No single tenant represented more than 10% of consolidated minimum rents
in 1997, 1996 and 1995.
14. SUPPLEMENTAL INFORMATION TO STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------
1997 1996 1995
---- ---- ----
<S> <C> <C> <C>
Supplemental disclosure of cash flow information:
Interest paid, net of interest capitalized $ 11,820 $ 10,603 $13,344
Interest capitalized 893 142 20
Dividends declared, not paid 901 - 4,952
Assignment of note receivable to affiliate 4,650 - -
Repayment of advance from affiliate
with real estate at book value 24,993 - -
In conjunction with the property acquisitions, the Company
assumed the following assets and liabilities:
Purchase of real estate $124,923 $103,532 $65,828
Liabilites, net of other assets (3,262) (4,956) (2,250)
Mortgage notes payable (13,308) (575)
Issuance of Common Stock (1,122)
-------- -------- -------
Acquisition of real estate $121,661 $ 85,268 $61,881
-------- -------- -------
-------- -------- -------
In conjunction with the property dispositions, the Company
disposed of the following assets and liabilities:
Sale of real estate $(12,877) $(22,481) $(2,429)
Liabilities, net of other assets (633) 1,421 45
Mortgage notes payable 2,069
-------- -------- -------
Disposition of real estate $(13,510) $(18,991) $(2,384)
-------- -------- -------
-------- -------- -------
Conversion of convertible subordinated debentures payable:
Convertible subordinated dentures converted $2,640 $8,864 $20,754
Common shares issued at $18.25 per share;
144,640, 485,680 and 1,137,165 2,639 8,863 20,753
Cash disbursed for fractional shares $ 1 $ 1 $ 1
-------- -------- -------
-------- -------- -------
</TABLE>
F-17
<PAGE>
CENTERPOINT PROPERTIES TRUST AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(CONTINUED)
(DOLLARS IN THOUSANDS, EXCEPT FOR PER SHARE DATA)
15. 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, or liquidity of the Company.
The Company has entered into several contracts for the acquisition of
properties. Each acquisition is subject to satisfactory completion of due
diligence and, in the case of developments, completion and occupancy of the
project.
At December 31, 1997, seven of the properties owned are subject to
purchase options held by certain tenants. The purchase options are
exercisable at various intervals through 2006 for amounts which are greater
than the net book value of the assets. The tenant at a property in Woodale,
IL exercised its option to purchase the building in May, 1997.
F-18
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Shareholders
CenterPoint Properties Trust
Our report on the consolidated financial statements of CenterPoint
Properties Trust and Subsidiaries is included as page F-2 of this Form 10-K.
In connection with our audits of such financial statements, we have also
audited the related financial statement schedules listed in the Index to
Consolidated Financial Statements on page F-1 of this Form 10-K.
In our opinion, these financial statement schedules referred to above,
when considered in relation to the basic financial statements taken as a
whole, present fairly, in all material respects, the information required to
be included therein.
Chicago, Illinois COOPERS & LYBRAND L.L.P.
February 10, 1998
F-19
<PAGE>
CENTERPOINT PROPERTIES TRUST
VALUATION AND QUALIFYING ACCOUNTS
SCHEDULE II
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
BEGINNING CHARGE TO COST ENDING
BALANCE AND EXPENSES RECOVERIES DEDUCTIONS(a) BALANCE
--------- -------------- ---------- ------------ -------
<S> <C> <C> <C> <C>
DESCRIPTION
- -----------
For year ended December 31, 1997:
Allowance for doubtful accounts $748 $279 $ - ($755) $272
---- ---- ----- ------ ----
---- ---- ----- ------ ----
For year ended December 31, 1996:
Allowance for doubtful accounts 500 462 - (214) 748
---- ---- ----- ------ ----
---- ---- ----- ------ ----
For year ended December 31, 1995:
Allowance for doubtful accounts $120 $433 - (53) $500
---- ---- ----- ------ ----
---- ---- ----- ------ ----
</TABLE>
- ---------------------------
NOTE: (a) Deductions represent write-off of accounts receivable against the
allowance for doubtful accounts.
F-20
<PAGE>
SCHEDULE III
CENTERPOINT PROPERTIES CORPORATION AND SUBSIDIARIES
REAL ESTATE AND ACCUMULATED DEPRECIATION
As of December 31, 1997
<TABLE>
<CAPTION>
Initial Costs
--------------------- Costs Capitalized
Subsequent to Acquisition
Buildings and -------------------------
Encumbrances Improvements Buildings and Carrying
Description (a) Land (a) Land Improvements Costs And
- ----------- ------------ ------- ------------- ---- ------------- ---------
<S> <C> <C> <C> <C> <C> <C>
WAREHOUSE/INDUSTRIAL
Properties:
425 W. 151st Street
East Chicago, IN $ 252 $ 1,805 $ 33 $ 4,410 $ 1,155
201 Mississippi Street
Gary, IN $50,000(h) 807 9,948 275 14,697
1201 Lunt Avenue
Elk Grove Village, IL (h) 57 146 4
620 Butterfield Road
Mundelein, IL 30,000(g) 335 1,974 61
1319 Marquette Drive
Romeoville, IL (h) 948 2,530 7
900 E. 103rd Street
Chicago, IL 2,226 10,693 3,631
1520 Pratt Avenue
Elk Grove Village, IL (h) 498 1,558 6
1850 Greenleaf
Elk Grove Village, IL 509 1,386 1
2743 Armstrong Court
Des Plaines, IL 1,320 2,679 133
5990 Touhy Avenue
Niles, IL 2,047 8,509 1,073
950 Tower Road
Mundelein, IL (h) 171 778 131
2339 Ernie Krueger Court
Waukegan, IL (g) 158 1,819
4501 W. Augusta Blvd.
Chicago, IL 175 4,988 700
1800 Industrial Drive
Libertyville, IL (h) 673 3,741 395 4,452
1400 Busse Road
Elk Grove Village, IL 439 5,719 277
1250 Carolina Drive
West Chicago, IL (g) 583 3,836 231
5619 W. 115th Street
Alsip, IL (h) 2,267 12,169 1,621
825 Tollgate Road
Elgin, IL (g) 712 3,584 12
720 Frontenac
Naperville, IL (g) 1,014 4,055 22 102
820 Frontenac
Naperville, IL (g) 906 3,626 17
1120 Frontenac
Naperville, IL (g) 791 3,164 23 612
1510 Frontenac
Naperville, IL (g) 621 2,485 16 69
1020 Frontenac
Naperville, IL (g) 591 2,363 11 214
1560 Frontenac
Naperville, IL (g) 508 2,034 11 66
1500 Shore Road
Naperville, IL (g) 260 1,042 7 37
800 Enterprise
Naperville, IL (g) 212 849 6 25
1651 Frontenac
Naperville, IL (g) 185 742 5 19
1150 Shore Road
Naperville, IL (g) 184 736 5 22
2764 Golfview
Naperville, IL (g) 125 498 3 27
920 Frontenac
Naperville, IL (g) 717 2,367 482
1300 Northpoint Road
Waukegan IL (h) 592 2,366 17
1 Wildlife Way
Long Grove, IL (h) 530 2,122 122
900 W. University Drive
Arlington Heights, IL (h) 817 3,268 17 96
7001 Adams Street
Willowbrook, IL (h) 297 1,326 4
745 Birginal Drive
Bensenville, IL 601 2,406 16
21399 Torrence Avenue
Sauk Village , IL 1,550 6,199 557 707
2600 N. Elmhurst Road
Elk Grove Village, IL. (g) 842 3,366 8 46
8901 W. 102nd Street
Pleasant Prarie, WI (h) 900 3,608 36
8200 100th Street
Pleasant Prarie, WI (h) 1,220 4,890 42
1700 Hawthorne
West Chicago, IL 2,522 10,089 1 25
1015 E. State Parkway
Schaumburg, IL 190 760 13
245 Beinoris Drive
WoodDale, IL (h) 168 570 5
800-1000 Chase Avenue
Elk Grove Village, IL 2,250 9,001 (444) 41
750 E. 110th Street
Chicago, IL 335 1,340 15 331
825-845 Hawthorne
West Chicago, IL (g) 721 2,884 23 302
1700 Butterfield Road
Mundelein, IL (h) 343 1,371 (1) 141
1810-1820 Industrial Drive
Libertyville, IL (h) 407 1,629 (5) 26
1733 Downs Drive
West Chicago (h) 488 1,953 1 22
1645 Downs Drive
West Chicago (h) 508 2,033 1 470
10601 Seymour Avenue
Franklin Park, IL 2,020 8,081 183 1,034
11701 South Central
Alsip, IL 1,241 4,964 22 618
11601 South Central
Alsip, IL 1,071 4,285 48 380
850 Arthur Avenue
Elk Grove Village, IL 575 270 1,081 1 230
1827 North Bendix Drive
South Bend, IN (h) 1,010 4,040 24 105
4400 S. Kolmar
Chicago, IL (h) 603 2,412 9 70
6600 River Road
Hodgkins, IL 2,640 10,562 47 350
7501 N. 81st Street
Milwaukee, WI 1,018 4,073 19 81
1100 Chase Avenue
Elk Grove Village, IL 248 993 7 238
2553 N. Edgington
Franklin Park, IL 6,000 1,870 7,481 67 925
875 Fargo Avenue
Elk Grove Village, IL 572 2,284 14 424
1800 Bruning Drive
Itasca, IL 1,999 7,995 26 108
1501 Pratt
Elk Grove Village, IL 1,047 4,189 67 459
400 N. Wolf Road
Northlake, IL 4,504 18,017 49 6,735
10740 W. Grand Avenue
Franklin Park, IL 383 1,532 8 172
911 Commerce Court
Buffalo Grove, IL 1,171 4,686 14 475
16400 W. 103rd Street
Lemont, IL 446 1,748 21 122
425 S. 37th Avenue
St. Charles, IL 644 2,575 7 236
1500 W. Dundee Road
Arlington Heights, IL 4,995 10,006 (1,076) 3,030
Lot 51-Naperville Business Center
Naperville, IL 220 (11)
3145 Central Avenue
Waukeegan, IL 1,270 5,080 20 1,133
2003-2207 South 114th Street
West Allis, WI 942 3,770 5 54
2501-2701 Busse Road
Elk Grove Village, IL 1,875 7,556 12 733
6464 West 51st Street
Forest View, IL 934 3,734 3 156
6500 West 51st Street
Forest View, IL 805 3,221 4 21
7447 South Central Avenue
Bedford Park, IL 437 1,748 7 37
7525 S. Sayre Avenue
Bedford Park, IL 587 2,345 4 26
2901 Centre Circle
Downers Grove, IL 207 828 4 557
1 Allsteel Drive
Aurora, IL 2,458 9,832 27 5,120
2525 Busse Highway
Elk Grove Village, IL 5,400 12,601 29 510
106th and Buffalo Avenue
Chicago, IL 248 992 9 534
7400 South Narragansett
Bedford Park,IL 743 2,972 9 38
2701 S. Busse Road
Elk Grove Village, IL 1 3
East Avenue and 55th Street
McCook, IL 1,190 4,761 33 197
6757 S. Sayre
Bedford Park, IL 1,236 4,945 4 16
1951 Landmeir Road
Elk Grove Village, IL 280 1,120 10 39
1355 Enterprise Drive
Romeoville, IL 580 2,320 2 9
5700 West Touhy Avenue
Niles, IL 18,005 139 174 8
110-190 Old Higgins Road
Des Plaines, IL 1,862 7,447 7 28
1475 S. 101st Street
West Allis, WI 331 1,323 1 4
1333 Grandview Drive
Yorkville, WI 1,516 6,062 1 7
2301 Route 30
Plainfield, IL 1,217 4,868 64 254
1796 Sherwin Avenue
Des Plaines, IL 944 3,778 1 530
2885 W. Diehl Road
Naperville, IL 1,539 8,630
2727 W. Diehl Road
Naperville, IL 3,071 14,233 -
O'hare Express Center - A2
Elk Grove Village, IL 1,097 7,060 110
O'hare Express Center - B1
Elk Grove Village, IL 1,683 10,500 96
CONSTRUCTION IN PROGRESS:
O'hare West
Elk Grove Village, IL 1,875 5,667 7 281
O'hare Express - B2
Elk Grove Village, IL 1,618 2,981 37
O'hare Express - C
Elk Grove Village, IL 2,603 1,537 0 36
1808 Swift Road
Oak Brook, IL 7,535
Champion
North Lake, IL 5,514
Ameritech
Gurnee, IL 2,446
RETAIL PROPERTIES:
84 Old McHenry Road
Wheeling, IL 482 2,152 31
351 N. Rohlwing Road
Itasca, IL 81 464 0
4-48 Barrington Road
Streamwood, IL 573 2,297 (62) 82
RESIDENTIAL PROPERTIES:
440 North Lake Street
Miller, IN 22,220 710 3,086 102 17,698 3,980
OFFICES OF THE MANAGEMENT
COMPANY
CHICAGO, IL 4,228
---------- --------- ---------- -------- --------- -------
Totals $ 108,795 $ 121,943 $ 429,552 $ 1,071 $ 83,385 5,695
---------- --------- ---------- -------- --------- -------
---------- --------- ---------- -------- --------- -------
</TABLE>
<PAGE>
CENTERPOINT PROPERTIES CORPORATION AND SUBSIDIARIES
REAL ESTATE AND ACCUMULATED DEPRECIATION
As of December 31, 1997
<TABLE>
<CAPTION>
Life Upon
Gross Amounts at Which Which
Carried at Close of Period Depreciation
-------------------------- in Latest
income
Buildings and Accumulated Date of Date Statement is
Description Land Improvements Total(a)(d) Depreciation Construction Acquired Computed
- ----------- ----- ------------ ----------- ------------ ------------- --------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
WAREHOUSE/INDUSTRIAL
Properties:
425 W. 151st Street
East Chicago, IN $ 285 $ 7,370 $ 7,655 $ (2,555) 1913/1988-1990 1987 (f)
201 Mississippi Street
Gary, IN 1,082 24,645 25,727 (8,286) 1946/1985-1988 1985 (f)
1201 Lunt Avenue
Elk Grove Village, IL 57 150 207 (19) 1971 1993 (f)
620 Butterfield Road
Mundelein, IL 396 1,974 2,370 (254) 1990 1993 (f)
1319 Marquette Drive
Romeoville, IL 948 2,537 3,485 (326) 1990-1991 1993 (f)
900 E. 103rd Street
Chicago, IL 2,226 14,324 16,550 (1,710) 1910 1993 (f)
1520 Pratt Avenue
Elk Grove Village, IL 498 1,564 2,062 (201) 1968 1993 (f)
1850 Greenleaf
Elk Grove Village, IL 509 1,387 1,896 (178) 1965 1993 (f)
2743 Armstrong Court
Des Plaines, IL 1,320 2,812 4,132 (354) 1989-1990 1993 (f)
5990 Touhy Avenue
Niles, IL 2,047 9,582 11,629 (1,140) 1957 1993 (f)
950 Tower Road
Mundelein, IL 171 909 1,080 (109) 1979 1993 (f)
2339 Ernie Krueger Court
Waukegan, IL 158 1,819 1,977 (234) 1990 1993 (f)
4501 W. Augusta Blvd.
Chicago, IL 175 5,688 5,863 (693) 1942-1943 1993 (f)
1800 Industrial Drive
Libertyville, IL 1,068 8,193 9,261 (761) 1992-1993 1993 (f)
1400 Busse Road
Elk Grove Village, IL 439 5,996 6,435 (764) 1987 1993 (f)
1250 Carolina Drive
West Chicago, IL 583 4,067 4,650 (506) 1989-1990 1993 (f)
5619 W. 115th Street
Alsip, IL 2,267 13,790 16,057 (1,704) 1974 1993 (f)
825 Tollgate Road
Elgin, IL 712 3,596 4,308 (462) 1989-1991 1993 (f)
720 Frontenac
Naperville, IL 1,036 4,157 5,193 (529) 1991 1993 (f)
820 Frontenac
Naperville, IL 906 3,643 4,549 (467) 1988 1993 (f)
1120 Frontenac
Naperville, IL 814 3,776 4,590 (468) 1980 1993 (f)
1510 Frontenac
Naperville, IL 637 2,554 3,191 (325) 1986 1993 (f)
1020 Frontenac
Naperville, IL 602 2,577 3,179 (313) 1980 1993 (f)
1560 Frontenac
Naperville, IL 519 2,100 2,619 (267) 1987 1993 (f)
1500 Shore Road
Naperville, IL 267 1,079 1,346 (137) 1985 1993 (f)
800 Enterprise
Naperville, IL 218 874 1,092 (111) 1985 1993 (f)
1651 Frontenac
Naperville, IL 190 761 951 (97) 1978 1993 (f)
1150 Shore Road
Naperville, IL 189 758 947 (96) 1985 1993 (f)
2764 Golfview
Naperville, IL 128 525 653 (66) 1985 1993 (f)
920 Frontenac
Naperville, IL 717 2,849 3,566 (320) 1987 1993 (f)
1300 Northpoint Road
Waukegan IL 592 2,383 2,975 (274) 1994 1994 (f)
1 Wildlife Way
Long Grove, IL 530 2,244 2,774 (257) 1994 1994 (f)
900 W. University Drive
Arlington Heights, L 834 3,364 4,198 (372) 1974 1994 (f)
7001 Adams Street
Willowbrook, IL 297 1,330 1,627 (146) 1994 1994 (f)
745 Birginal Drive
Bensenville, IL 601 2,422 3,023 (272) 1974 1994 (f)
21399 Torrence Avenue
Sauk Village , IL 2,107 6,906 9,013 (737) 1987 1994 (f)
2600 N. Elmhurst Road
Elk Grove Village, IL. 850 3,412 4,262 (301) 1995 1995 (f)
8901 W. 102nd Street
Pleasant Prarie, WI 900 3,644 4,544 (369) 1990 1994 (f)
8200 100th Street
Pleasant Prarie, WI 1,220 4,932 6,152 (500) 1990 1994 (f)
1700 Hawthorne
West Chicago, IL 2,523 10,114 12,637 (991) 1959/1969 1994 (f)
1015 E. State Parkway
Schaumburg, IL 190 773 963 (77) 1980 1994 (f)
245 Beinoris Drive
Wood Dale, IL 168 575 743 (73) 1988 1984 (f)
800-1000 Chase Avenue
Elk Grove Village, IL 1,806 9,042 10,848 (848) 1972 1995 (f)
750 E. 110th Street
Chicago, IL 350 1,671 2,021 (142) 1966 1995 (f)
825-845 Hawthorne
West Chicago, IL 744 3,186 3,930 (262) 1974 1995 (f)
1700 Butterfield Road
Mundelein, IL 342 1,512 1,854 (121) 1976 1995 (f)
1810-1820 Industrial Drive
Libertyville, IL 402 1,655 2,057 (133) 1977 1995 (f)
1733 Downs Drive
West Chicago 489 1,975 2,464 (159) 1976 1995 (f)
1645 Downs Drive
West Chicago 509 2,503 3,012 (198) 1976 1995 (f)
10601 Seymour Avenue
Franklin Park, IL 2,203 9,115 11,318 (618) 1963/1965 1995 (f)
11701 South Central
Alsip, IL 1,263 5,582 6,845 (376) 1972 1995 (f)
11601 South Central
Alsip, IL 1,119 4,665 5,784 (320) 1971 1995 (f)
850 Arthur Avenue
Elk Grove Village, IL 271 1,311 1,582 (88) 1972/1973 1995 (f)
1827 North Bendix Drive
South Bend, IN 1,034 4,145 5,179 (279) 1964/1990 1995 (f)
4400 S. Kolmar
Chicago, IL 612 2,482 3,094 (166) 1964 1995 (f)
6600 River Road
Hodgkins, IL 2,687 10,912 13,599 (583) Unknown 1996 (f)
7501 N. 81st Street
Milwaukee, WI 1,037 4,154 5,191 (213) 1987 1996 (f)
1100 Chase Avenue
Elk Grove Village, IL 255 1,231 1,486 (64) 1969 1996 (f)
2553 N. Edgington
Franklin Park, IL 1,937 8,406 10,343 (376) 1967/1989 1996 (f)
875 Fargo Avenue
Elk Grove Village, IL 586 2,708 3,294 (123) 1979 1996 (f)
1800 Bruning Drive
Itasca, IL 2,025 8,103 10,128 (396) 1975/1978 1996 (f)
1501 Pratt
Elk Grove Village, IL 1,114 4,648 5,762 (223) 1973 1996 (f)
400 N. Wolf Road
Northlake, IL 4,553 24,752 29,305 (895) 1956/1965 1996 (f)
10740 W. Grand Avenue
Franklin Park, IL 391 1,704 2,095 (70) 1964/1970 1996 (f)
911 Commerce Court
Buffalo Grove, IL 1,185 5,161 6,346 (193) 1992 1996 (f)
16400 W. 103rd Street
Lemont, IL 467 1,870 2,337 (71) 1983 1996 (f)
425 S. 37th Avenue
St. Charles, IL 651 2,811 3,462 (106) 1976 1996 (f)
1500 W. Dundee Road
Arlington Heights, IL 3,919 13,036 16,955 (386) 1969/1971 1996 (f)
Lot 51-Naperville Business Center
Naperville, IL 209 209 1996 1996 (f)
3145 Central Avenue
Waukeegan, IL 1,290 6,213 7,503 (192) 1960 1997 (f)
2003-2207 South 114th Street
West Allis, WI 947 3,824 4,771 (90) 1965/1966 1997 (f)
2501-2701 Busse Road
Elk Grove Village, IL 1,887 8,289 10,176 (189) 1997 1997 (f)
6464 West 51st Street
Forest View, IL 937 3,890 4,827 (81) 1973 1997 (f)
6500 West 51st Street
Forest View, IL 809 3,242 4,051 (69) 1974 1997 (f)
7447 South Central Avenue
Bedford Park, IL 444 1,785 2,229 (38) 1980 1997 (f)
7525 S. Sayre Avenue
Bedford Park, IL 591 2,371 2,962 (50) 1980 1997 (f)
2901 Centre Circle
Downers Grove, IL 211 1,385 1,596 (23) 1975 1997 (f)
1 Allsteel Drive
Aurora, IL 2,485 14,952 17,437 (248) 1957-1967 1997 (f)
2525 Busse Highway
Elk Grove Village, IL 5,429 13,111 18,540 (169) 1975 1997 (f)
106th and Buffalo Avenue
Chicago, IL 257 1,526 1,783 (22) 1971 1997 (f)
7400 South Narragansett
Bedford Park,IL 752 3,010 3,762 (32) 1977 1997 (f)
2701 S. Busse Road
Elk Grove Village, IL 1 3 4 1997 1997 (f)
East Avenue and 55th Street
McCook, IL 1,223 4,958 6,181 (39) 1979 1997 (f)
6757 S. Sayre
Bedford Park, IL 1,240 4,961 6,201 (39) 1975 1997 (f)
1951 Landmeir Road
Elk Grove Village, IL 290 1,159 1,449 (9) 1967 1997 (f)
1355 Enterprise Drive
Romeoville, IL 582 2,329 2,911 (19) 1980/1986 1997 (f)
5700 West Touhy Avenue
Niles, IL 18,179 147 18,326 1948 1997 (f)
110-190 Old Higgins Road
Des Plaines, IL 1,869 7,475 9,344 1980 1997 (f)
1475 S. 101st Street
West Allis, WI 332 1,327 1,659 1968/1988 1997 (f)
1333 Grandview Drive
Yorkville, WI 1,517 6,069 7,586 1994 1997 (f)
2301 Route 30
Plainfield, IL 1,281 5,122 6,403 1972/1984 1997 (f)
1796 Sherwin Avenue
Des Plaines, IL 945 4,308 5,253 1964 1997 (f)
2885 W. Diehl Road
Naperville, IL 1,539 8,630 10,169 1997 1997 (f)
2727 W. Diehl Road
Naperville, IL 3,071 14,233 17,304 1997 1997 (f)
O'hare Express Center - A2
Elk GroveVillage, IL 1,097 7,170 8,267 (117) 1997 197 (f)
O'hare Express Center - B1
Elk GroveVillage, IL 1,683 10,596 12,279 (155) 1997 1997 (f)
CONSTRUCTION IN PROGRESS:
O'hare West
Elk Grove Village, IL 1,882 5,948 7,830
O'hare Express - B2
Elk Grove Village, IL 1,618 3,018 4,636 (52)
O'hare Express - C
Elk Grove Village, IL 2,603 1,573 4,176 (82)
1808 Swift Road
Oak Brook, IL 7,535 7,535
Champion
North Lake, IL 5,514 5,514
Ameritech
Gurnee, IL 2,446 2,446
RETAIL PROPERTIES:
84 Old McHenry Road
Wheeling, IL 482 2,183 2,665 (281) 1989-1990 1993 (f)
351 N. Rohlwing Road
Itasca, IL 81 464 545 (60) 1989 1993 (f)
4-48 Barrington Road
Streamwood, IL 511 2,379 2,890 (225) 1989 1994 (f)
RESIDENTIAL PROPERTIES:
440 North Lake Street
Miller, IN 812 24,764 25,576 (5,099) 971/1990-1993 1990 (f)
OFFICES OF THE MANAGEMENT
Company
CHICAGO, IL 4,228 4,228 (1,742) Var. (f)
---------- --------- ---------- ----------
Totals $ 123,014 $ 518,632 $ 641,646 $ (44,352)
---------- --------- ---------- ----------
---------- --------- ---------- ----------
</TABLE>
<PAGE>
CENTERPOINT PROPERTIES TRUST AND SUBSIDIARIES
SCHEDULE III (CONTINUED)
(DOLLARS IN THOUSANDS)
Notes to Schedule III:
(a) Initial cost for each respective property is the total acquisition costs
associated with its purchase.
(b) Carrying costs consist of capitalized construction period interest, taxes
and insurance.
(c) At December 31, 1997, the aggregate cost of land and buildings and
equipment for Federal income tax purposes was approximately $681 million.
(d) Reconciliation of real estate and accumulated depreciation:
RECONCILIATION OF REAL ESTATE
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------
1997 1996 1995
-------- -------- --------
<S> <C> <C> <C>
Balance at the beginning of year $429,034 $317,460 $248,281
Additions 200,409 135,342 71,315
Dispositions (12,203) (23,768) (2,136)
-------- -------- --------
Balance at close of year $641,646 $429,034 $317,460
-------- -------- --------
-------- -------- --------
</TABLE>
RECONCILIATION OF ACCUMULATED DEPRECIATION
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------
1997 1996 1995
-------- -------- --------
<S> <C> <C> <C>
Balance at beginning of year $30,206 $21,576 $13,455
Depreciation and amortization 14,494 10,199 8,161
Dispositions (348) (1,569) (40)
-------- -------- --------
Balance at close of year $44,352 $30,206 $21,576
-------- -------- --------
-------- -------- --------
</TABLE>
(e) See description of encumbrances in Note 6 to Consolidated Financial
Statements.
(f) Depreciation is computed based upon the following estimated lives:
<TABLE>
<CAPTION>
<S> <C>
Buildings, improvements and carrying costs 31.5 to 40 years
Land improvements 15 years
Furniture, fixtures and equipment 4 to 15 years
</TABLE>
(g) These 18 properties collateralize a $30,000 mortgage loan payable.
(h) These 20 properties collateralize $50,000 of mortgage bonds payable.
<PAGE>
AMENDED AND RESTATED
UNSECURED REVOLVING CREDIT AGREEMENT
DATED AS OF NOVEMBER 13, 1997
AMONG
CENTERPOINT PROPERTIES TRUST,
AS BORROWER,
THE FIRST NATIONAL BANK OF CHICAGO
AS ADMINISTRATIVE AGENT AND LENDER, AND
LEHMAN BROTHERS HOLDINGS INC.,
D/B/A
LEHMAN CAPITAL,
A DIVISION OF
LEHMAN BROTHERS HOLDINGS INC.
AS DOCUMENTATION AGENT AND LENDER, AND
THE SEVERAL OTHER LENDERS
FROM TIME TO TIME PARTIES HERETO
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II THE CREDIT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.1. COMMITMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.2. FINAL PRINCIPAL PAYMENT AND EXTENSION OPTION. . . . . . . . . . . . 20
2.3. RATABLE LOANS . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.4. APPLICABLE MARGINS. . . . . . . . . . . . . . . . . . . . . . . . . 21
2.5. FACILITY FEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.6. OTHER FEES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.7. MINIMUM AMOUNT OF EACH ADVANCE. . . . . . . . . . . . . . . . . . . 22
2.8. OPTIONAL PRINCIPAL PAYMENTS . . . . . . . . . . . . . . . . . . . . 23
2.9. METHOD OF SELECTING TYPES AND INTEREST PERIODS
FOR NEW ADVANCES. . . . . . . . . . . . . . . . . . . . . . . . . . 23
2.10. CONVERSION AND CONTINUATION OF OUTSTANDING ADVANCES . . . . . . . . 24
2.11. CHANGES IN INTEREST RATE, ETC.. . . . . . . . . . . . . . . . . . . 24
2.12. RATES APPLICABLE AFTER DEFAULT. . . . . . . . . . . . . . . . . . . 24
2.13. SWING LINE LOANS. . . . . . . . . . . . . . . . . . . . . . . . . . 25
2.14. COMPETITIVE BID LOANS . . . . . . . . . . . . . . . . . . . . . . . 26
2.15. FIXED RATE LOANS. . . . . . . . . . . . . . . . . . . . . . . . . . 30
2.16. METHOD OF PAYMENT . . . . . . . . . . . . . . . . . . . . . . . . . 30
2.17. NOTES; TELEPHONIC NOTICES . . . . . . . . . . . . . . . . . . . . . 31
2.18. INTEREST PAYMENT DATES; INTEREST AND FEE BASIS. . . . . . . . . . . 31
2.19. NOTIFICATION OF ADVANCES, INTEREST RATES AND PREPAYMENTS. . . . . . 32
2.20. LENDING INSTALLATIONS . . . . . . . . . . . . . . . . . . . . . . . 32
2.21. NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE AGENT. . . . . . . . . . 32
2.22. WITHHOLDING TAX EXEMPTION . . . . . . . . . . . . . . . . . . . . . 33
2.23. VOLUNTARY REDUCTION OF AGGREGATE COMMITMENT AMOUNT. . . . . . . . . 33
2.24. USURY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
2.25. APPLICATION OF MONEYS RECEIVED. . . . . . . . . . . . . . . . . . . 34
ARTICLE III THE LETTER OF CREDIT SUBFACILITY. . . . . . . . . . . . . . . . . . 35
3.1. OBLIGATION TO ISSUE . . . . . . . . . . . . . . . . . . . . . . . . 35
3.2. TYPES AND AMOUNTS . . . . . . . . . . . . . . . . . . . . . . . . . 35
3.3. CONDITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
3.4. PROCEDURE FOR ISSUANCE OF FACILITY LETTERS OF CREDIT. . . . . . . . 36
3.5. REIMBURSEMENT OBLIGATIONS; DUTIES OF ISSUING BANK . . . . . . . . . 38
3.6. PARTICIPATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
3.7. PAYMENT OF REIMBURSEMENT OBLIGATIONS. . . . . . . . . . . . . . . . 39
3.8. COMPENSATION FOR FACILITY LETTERS OF CREDIT . . . . . . . . . . . . 40
3.9. LETTER OF CREDIT COLLATERAL ACCOUNT . . . . . . . . . . . . . . . . 41
ARTICLE IV CHANGE IN CIRCUMSTANCES . . . . . . . . . . . . . . . . . . . . . . 41
4.1. YIELD PROTECTION. . . . . . . . . . . . . . . . . . . . . . . . . . 41
</TABLE>
-i-
<PAGE>
<TABLE>
<S> <C> <C>
4.2. CHANGES IN CAPITAL ADEQUACY REGULATIONS . . . . . . . . . . . . . . 42
4.3. AVAILABILITY OF LIBOR ADVANCES. . . . . . . . . . . . . . . . . . . 42
4.4. FUNDING INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . 43
4.5. LENDER STATEMENTS; SURVIVAL OF INDEMNITY. . . . . . . . . . . . . . 43
4.6. LIMITATION ON BORROWER'S LIABILITY. . . . . . . . . . . . . . . . . 43
ARTICLE V CONDITIONS PRECEDENT. . . . . . . . . . . . . . . . . . . . . . . . 44
5.1. INITIAL ADVANCE . . . . . . . . . . . . . . . . . . . . . . . . . . 44
5.2. CONDITIONS TO EACH ADVANCE, ISSUANCE OF FACILITY
LETTER OF CREDIT AND CONTINUATION/CONVERSION. . . . . . . . . . . . 46
ARTICLE VI REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . . . . . . . . 47
6.1. EXISTENCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
6.2. AUTHORIZATION AND VALIDITY. . . . . . . . . . . . . . . . . . . . . 47
6.3. NO CONFLICT; GOVERNMENT CONSENT . . . . . . . . . . . . . . . . . . 47
6.4. FINANCIAL STATEMENTS; MATERIAL ADVERSE CHANGE . . . . . . . . . . . 48
6.5. TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
6.6. LITIGATION AND CONTINGENT OBLIGATIONS . . . . . . . . . . . . . . . 48
6.7. SUBSIDIARIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
6.8. ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
6.9. ACCURACY OF INFORMATION . . . . . . . . . . . . . . . . . . . . . . 49
6.10. REGULATION U. . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
6.11. MATERIAL AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . 50
6.12. COMPLIANCE WITH LAWS. . . . . . . . . . . . . . . . . . . . . . . . 50
6.13. OWNERSHIP OF PROPERTIES . . . . . . . . . . . . . . . . . . . . . . 50
6.14. INVESTMENT COMPANY ACT. . . . . . . . . . . . . . . . . . . . . . . 50
6.15. PUBLIC UTILITY HOLDING COMPANY ACT. . . . . . . . . . . . . . . . . 50
6.16. SOLVENCY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
6.17. INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
6.18. NYSE AND REIT STATUS. . . . . . . . . . . . . . . . . . . . . . . . 51
6.19. ENVIRONMENTAL MATTERS . . . . . . . . . . . . . . . . . . . . . . . 51
6.20. LICENSES, ETC.. . . . . . . . . . . . . . . . . . . . . . . . . . . 53
6.21. JUDGMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
6.22. PROPERTY MANAGER. . . . . . . . . . . . . . . . . . . . . . . . . . 53
6.23. UPDATED SCHEDULES . . . . . . . . . . . . . . . . . . . . . . . . . 53
6.24. UNENCUMBERED ASSETS . . . . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE VII COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
7.1. FINANCIAL REPORTING . . . . . . . . . . . . . . . . . . . . . . . . 56
7.2. USE OF PROCEEDS . . . . . . . . . . . . . . . . . . . . . . . . . . 59
7.3. NOTICE OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . 59
7.4. CONDUCT OF BUSINESS . . . . . . . . . . . . . . . . . . . . . . . . 59
7.5. TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
7.6. INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
</TABLE>
-ii-
<PAGE>
<TABLE>
<S> <C> <C>
7.7. COMPLIANCE WITH LAWS. . . . . . . . . . . . . . . . . . . . . . . . 61
7.8. MAINTENANCE OF PROPERTIES . . . . . . . . . . . . . . . . . . . . . 61
7.9. INSPECTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
7.10. MAINTENANCE OF STATUS . . . . . . . . . . . . . . . . . . . . . . . 61
7.11. DIVIDENDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
7.12. MERGER; SALE OF ASSETS. . . . . . . . . . . . . . . . . . . . . . . 61
7.13. TRANSFERS OF UNENCUMBERED ASSETS. . . . . . . . . . . . . . . . . . 62
7.14. OWNERSHIP AND CONTROL OF BORROWER . . . . . . . . . . . . . . . . . 62
7.15. SUBSIDIARIES AND QUALIFYING INVESTMENT AFFILIATES . . . . . . . . . 62
7.16. LIENS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
7.17. AFFILIATES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
7.18. INTEREST RATE HEDGING . . . . . . . . . . . . . . . . . . . . . . . 64
7.19. VARIABLE INTEREST INDEBTEDNESS. . . . . . . . . . . . . . . . . . . 64
7.20. CONSOLIDATED NET WORTH. . . . . . . . . . . . . . . . . . . . . . . 64
7.21. INDEBTEDNESS AND CASH FLOW COVENANTS. . . . . . . . . . . . . . . . 64
7.22. ENVIRONMENTAL MATTERS . . . . . . . . . . . . . . . . . . . . . . . 65
7.23. NOTIFICATION OF RATING CHANGE . . . . . . . . . . . . . . . . . . . 66
7.24. MAXIMUM REVENUE FROM SINGLE TENANT. . . . . . . . . . . . . . . . . 67
7.25. NEGATIVE PLEDGE . . . . . . . . . . . . . . . . . . . . . . . . . . 67
7.26. MANAGER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
7.27. ACCELERATION NOTICE . . . . . . . . . . . . . . . . . . . . . . . . 67
7.28. LIEN SEARCHES; TITLE SEARCHES . . . . . . . . . . . . . . . . . . . 67
7.29. ADDITIONAL COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . 67
7.30. CALCULATION OF FINANCIAL COVENANTS UPON PROPERTY BREACHES . . . . . 67
ARTICLE VIII DEFAULTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
ARTICLE IX ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES. . . . . . . . . . . 71
9.1. ACCELERATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
9.2. AMENDMENTS, WAIVERS, DECISIONS. . . . . . . . . . . . . . . . . . 71
9.3. PRESERVATION OF RIGHTS. . . . . . . . . . . . . . . . . . . . . . . 72
ARTICLE X GENERAL PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . . 73
10.1. SURVIVAL OF REPRESENTATIONS. . . . . . . . . . . . . . . . . . 73
10.2. GOVERNMENTAL REGULATION. . . . . . . . . . . . . . . . . . . . 73
10.3. TAXES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
10.4. HEADINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
10.5. ENTIRE AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . 73
10.6. SEVERAL OBLIGATIONS; BENEFITS OF THIS AGREEMENT. . . . . . . . 73
10.7. EXPENSES; INDEMNIFICATION. . . . . . . . . . . . . . . . . . . 73
10.8. NUMBERS OF DOCUMENTS . . . . . . . . . . . . . . . . . . . . . 74
10.9. ACCOUNTING . . . . . . . . . . . . . . . . . . . . . . . . . . 74
10.10. SEVERABILITY OF PROVISIONS . . . . . . . . . . . . . . . . . . . . . . 74
</TABLE>
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10.11. NONLIABILITY OF LENDERS, ARRANGERS, ADMINISTRATIVE
AGENT AND DOCUMENTATION AGENT . . . . . . . . . . . . . . . . . . . 74
10.12. PUBLICITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
10.13. BROKERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
10.14. CONFIDENTIALITY . . . . . . . . . . . . . . . . . . . . . . . . . . 75
10.15. CHOICE OF LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
10.16. CONSENT TO JURISDICTION . . . . . . . . . . . . . . . . . . . . . . 76
10.17. WAIVER OF JURY TRIAL. . . . . . . . . . . . . . . . . . . . . . . . 76
ARTICLE XI THE ADMINISTRATIVE AGENT AND AGREEMENTS AMONG LENDERS . . . . . . . 76
11.1. APPOINTMENT. . . . . . . . . . . . . . . . . . . . . . . . . . 76
11.2. POWERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
11.3. GENERAL IMMUNITY . . . . . . . . . . . . . . . . . . . . . . . 77
11.4. NO RESPONSIBILITY FOR LOANS, RECITALS, ETC.. . . . . . . . . . 77
11.5. ACTION ON INSTRUCTIONS OF LENDERS. . . . . . . . . . . . . . . 77
11.6. EMPLOYMENT OF ADMINISTRATIVE AGENTS AND COUNSEL. . . . . . . . 78
11.7. RELIANCE ON DOCUMENTS; COUNSEL . . . . . . . . . . . . . . . . 78
11.8. ADMINISTRATIVE AGENT'S REIMBURSEMENT
AND INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . . 78
11.9. RIGHTS AS A LENDER . . . . . . . . . . . . . . . . . . . . . . 78
11.10. LENDER CREDIT DECISION. . . . . . . . . . . . . . . . . . . . . . . 79
11.11. SUCCESSOR ADMINISTRATIVE AGENT. . . . . . . . . . . . . . . . . . . 79
11.12. NOTICE OF DEFAULTS. . . . . . . . . . . . . . . . . . . . . . . . . 80
11.13. REQUESTS FOR APPROVAL . . . . . . . . . . . . . . . . . . . . . . . 80
11.14. COPIES OF DOCUMENTS . . . . . . . . . . . . . . . . . . . . . . . . 80
11.15. DEFAULTING LENDERS. . . . . . . . . . . . . . . . . . . . . . . . . 80
ARTICLE XII RATABLE PAYMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . 81
12.1. Intentionally Deleted . . . . . . . . . . . . . . . . . . . . . . . 81
12.2. Ratable Payments. . . . . . . . . . . . . . . . . . . . . . . . . . 81
ARTICLE XIII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS . . . . . . . . . 82
13.1. SUCCESSORS AND ASSIGNS. . . . . . . . . . . . . . . . . . . . . . . 82
13.2. PARTICIPATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . 82
13.2.1. PERMITTED PARTICIPANTS; EFFECT. . . . . . . . . . . . . . 82
13.2.2. VOTING RIGHTS . . . . . . . . . . . . . . . . . . . . . . 82
13.3. ASSIGNMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
13.3.1. PERMITTED ASSIGNMENTS . . . . . . . . . . . . . . . . . . 83
13.3.2. EFFECT; EFFECTIVE DATE. . . . . . . . . . . . . . . . . . 83
13.4. DESIGNATION OF LENDER TO MAKE COMPETITIVE LOANS . . . . . . . . . . 84
13.5. DISSEMINATION OF INFORMATION. . . . . . . . . . . . . . . . . . . . 85
13.6. TAX TREATMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
13.7. POSSESSION OF LOAN DOCUMENTS AND REGISTER . . . . . . . . . . . . . 85
</TABLE>
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ARTICLE XIV NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
14.1. GIVING NOTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
14.2. CHANGE OF ADDRESS . . . . . . . . . . . . . . . . . . . . . . . . . 86
14.3. ACCOUNTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
ARTICLE XV COUNTERPARTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
</TABLE>
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Exhibits:
Exhibit A Pricing Grid
Exhibit B-1 Form of Note
Exhibit B-2 Competitive Bid Notes
Exhibit C-1 Competitive Bid Quote Request
Exhibit C-2 Invitation to Submit Competitive Bids
Exhibit C-3 Competitive Bid Quote
Exhibit D Form of Opinion
Exhibit E Form of Compliance Certificate
Exhibit F Form of Assignment Agreement
Exhibit G Form of Loan/Credit Related Money Transfer Instruction
Exhibit H Minimum Specifications for Environmental Investigations
Exhibit I Form of Designation Agreement
Schedules:
Schedule 1 Subsidiaries and Other Investments
Schedule 2 Unencumbered Assets
Schedule 3 Indebtedness and Liens
Schedule 4 Plans and Multiemployer Plans
Schedule 5 Environmental Disclosures
Schedule 6 Noncompliance with Laws
Schedule 7 Litigation and Investigations
Schedule 8 Contingent Obligations
Schedule 9 Indebtedness Defaults
</TABLE>
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<PAGE>
AMENDED AND RESTATED
UNSECURED REVOLVING CREDIT AGREEMENT
This Amended and Restated Unsecured Revolving Credit Agreement
("AGREEMENT"), dated as of November 13, 1997, is among CENTERPOINT PROPERTIES
TRUST, a Maryland real estate investment trust (the "BORROWER"), the several
banks, financial institutions and other entities from time to time parties to
this Agreement (collectively, the "LENDERS"), LEHMAN BROTHERS HOLDINGS INC.
D/B/A LEHMAN CAPITAL, A DIVISION OF LEHMAN BROTHERS HOLDINGS INC. ("LEHMAN") not
individually but as Documentation Agent and THE FIRST NATIONAL BANK OF CHICAGO,
not individually, but as "ADMINISTRATIVE AGENT".
RECITALS
A. The Borrower is primarily engaged in the business of purchasing,
developing, owning, operating, leasing, managing, financing and selling
warehouse/industrial properties. It also currently owns four retail properties
having approximately 73,000 square feet of gross leasable area and one 682-unit
apartment complex located at 440 North Lake Street, Miller, Indiana
(collectively, the "NON-INDUSTRIAL PROPERTIES").
B. The Borrower's common shares of beneficial interest are listed on the
New York Stock Exchange, and the Borrower is qualified as a real estate
investment trust.
C. The Borrower, the Administrative Agent, and certain of the Lenders are
parties to an Unsecured Revolving Credit Agreement dated as of October 23, 1996,
as previously amended (the "EXISTING CREDIT AGREEMENT") pursuant to which the
Lenders that are parties thereto agreed to make loans to the Borrower in the
maximum aggregate amount of $135,000,000 (the "EXISTING FACILITY").
D. The Borrower has requested that the Lenders increase the amount of
loans that are available to the Borrower to the aggregate amount of $150,000,000
pursuant to the terms of this Agreement (the "Facility"), and that the
Administrative Agent act as administrative agent for the Lenders and that the
Documentation Agent act as documentation agent for the Lenders and that certain
other changes be made to the Existing Facility, including the admission of
additional Lenders. The Administrative Agent, the Documentation Agent and the
Lenders have agreed to do so.
E. The Documentation Agent and First Chicago Capital Markets, Inc. have
arranged the Facility between the Lenders and Borrower and coordinated the
closing of the Facility.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
<PAGE>
ARTICLE I
DEFINITIONS
As used in this Agreement:
"ABSOLUTE INTEREST PERIOD" means, with respect to a Competitive Bid Loan
made at an Absolute Rate, a period of up to 180 days as requested by Borrower in
a Competitive Bid Quote Request and confirmed by a Lender in a Competitive Bid
Quote but in no event extending beyond the Facility Termination Date. If an
Absolute Interest Period would end on a day which is not a Business Day, such
Absolute Interest Period shall end on the next succeeding Business Day.
"ABSOLUTE RATE" means a fixed rate of interest (rounded to the nearest
1/100 of 1%) for an Absolute Interest Period with respect to a Competitive Bid
Loan offered by a Lender and accepted by the Borrower at such rate.
"ADMINISTRATIVE AGENT" means The First National Bank of Chicago in its
capacity as agent for the Lenders pursuant to ARTICLE X, and not in its
individual capacity as a Lender, and any successor Administrative Agent
appointed pursuant to ARTICLE XI.
"ADMINISTRATIVE AGENT'S FEE" is defined in SECTION 2.6.
"ADVANCE" means a borrowing hereunder consisting of the aggregate amount of
the several Loans made by the Lenders to the Borrower of the same Type
(including Swing Line Loans) and, in the case of LIBOR Advances, for the same
Interest Period, including Reimbursement Obligations.
"AFFILIATE" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of stock, by contract or otherwise.
"AGGREGATE COMMITMENT" means the aggregate of the Commitments of all the
Lenders, which initially shall be $150,000,000, subject to Borrower's right to
reduce the Aggregate Commitment pursuant to SECTION 2.22 and which shall
otherwise only be increased with the consent of all Lenders.
"AGREEMENT" means this Unsecured Revolving Credit Agreement, as it may be
amended or modified and in effect from time to time.
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"ALLOCATED FACILITY AMOUNT" means, at any time, the sum of all then
outstanding Advances and the then Facility Letter of Credit Obligations.
"APPLICABLE CAP RATE" means 10.25% for all Non-industrial Properties that
are not multi-family Properties and 9.50% for all industrial and multi-family
Properties.
"APPLICABLE LAWS" is defined in SECTION 6.24(c).
"APPLICABLE MARGIN" means the applicable margin set forth in the table in
SECTION 2.4 used in calculating the interest rate applicable to the various
Types of Advances, which shall vary from time to time in accordance with the
long term unsecured debt rating of Borrower or the rating of this Facility in
the manner set forth in SECTION 2.4.
"ARRANGERS" means Documentation Agent and First Chicago Capital Markets,
Inc.
"ARTICLE" means an article of this Agreement unless another document is
specifically referenced.
"ASSIGNMENT" as defined in SECTION 13.3.
"AUTHORIZED OFFICER" means with respect to the Borrower any of the
President, Executive Vice President, Chief Operating Officer, Chief Financial
Officer or Treasurer, acting singly.
"BORROWER" means CenterPoint Properties Trust, and its successors and
permitted assigns.
"BORROWING DATE" means a date on which an Advance is made hereunder.
"BORROWING NOTICE" is defined in SECTION 2.9.
"BREAK-UP FEE" means the amount due pursuant to SECTION 4.4 in the event a
LIBOR Advance or Fixed Rate Advance is prepaid.
"BUSINESS DAY" means (i) with respect to any borrowing, payment or rate
selection of LIBOR Advances, a day (other than a Saturday or Sunday) on which
banks generally are open in Chicago, Illinois, and New York, New York for the
conduct of substantially all of their commercial lending activities and on which
dealings in United States dollars are carried on in the London interbank market
and (ii) for all other purposes, a day (other than a Saturday or Sunday) on
which banks generally are open in Chicago, Illinois and New York, New York for
the conduct of substantially all of their commercial lending activities.
"CAPITAL EXPENDITURE RESERVE AMOUNT" means, for any period, 5CENTS per
square foot of leasable space in Unencumbered Assets (on an annualized basis).
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"CAPITAL STOCK" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person which is not a corporation
and any and all warrants or options to purchase any of the foregoing.
"CAPITALIZED LEASE" of a Person means any lease of Property imposing
obligations on such Person, as lessee thereunder, which are required in
accordance with GAAP to be capitalized on a balance sheet of such Person.
"CAPITALIZED LEASE OBLIGATIONS" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with GAAP.
"CASH EQUIVALENTS" means, as of any date, (i) securities issued or directly
and fully guaranteed or insured by the United States Government or any agency or
instrumentality thereof having maturities of not more than one year from such
date, (ii) time deposits and certificates of deposit having maturities of not
more than one year from such date and issued by any domestic commercial bank
having (A) senior long-term unsecured debt rated at least A or the equivalent
thereof by S&P or A2 or the equivalent thereof by Moody's and (B) capital and
surplus in excess of $100,000,000, (iii) commercial paper rated at least A-1 or
the equivalent thereof by S&P or P-1 or the equivalent thereof by Moody's and in
either case maturing within 120 days from such date; and (iv) shares of any
money market mutual fund rated at least AAA or the equivalent thereof by S&P or
at least Aaa or the equivalent thereof by Moody's.
"CBR ADVANCE" means an Advance which bears interest at the CBR Rate.
"CBR APPLICABLE MARGIN" means, as of any date, the Applicable Margin in
effect on such date with respect to CBR Advances and CBR Loans, as determined in
accordance with SECTION 2.4.
"CBR LOAN" means a Loan which bears interest at the CBR Rate.
"CBR RATE" means, for any day, a rate per annum equal to (i) the Corporate
Base Rate for such day plus (ii) CBR Applicable Margin for such day, in each
case changing when and as the Corporate Base Rate changes.
"CLOSING DATE" means the date of this Agreement.
"CODE" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"COMMITMENT" means, for each Lender, the obligation of such Lender to make
Loans not exceeding the amount set forth opposite its signature below or as set
forth in any Notice of
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Assignment relating to any assignment that has become effective pursuant to
SECTION 13.3.2, as such amount may be modified from time to time pursuant to the
terms hereof.
"COMPETITIVE BID BORROWING NOTICE" is defined in SECTION 2.14(f).
"COMPETITIVE BID LENDER" means a Lender or Designated Lender which has a
Competitive Bid Loan outstanding.
"COMPETITIVE BID LOAN" is a Loan made pursuant to SECTION 2.14 hereof.
"COMPETITIVE BID NOTE" means the promissory note payable to the order of
the applicable Lender in the form attached hereto as EXHIBIT B-2 to be used to
evidence any Competitive Bid Loans which such Lender elects to make
(collectively, the "Competitive Bid Notes").
"COMPETITIVE BID QUOTE" means a response submitted by a Lender to the
Administrative Agent or the Borrower, as the case may be with respect to an
Invitation for Competitive Bid Quotes in the form attached as EXHIBIT C-3.
"COMPETITIVE BID QUOTE REQUEST" means a written request from Borrower to
Administrative Agent in the form attached as EXHIBIT C-1.
"COMPETITIVE LIBOR MARGIN" means, with respect to any Competitive Bid Loan
for a LIBOR Interest Period, the percentage established in the applicable
Competitive Bid Quote which is to be used to determine the interest rate
applicable to such Competitive Bid Loan.
"CONDEMNATION" is defined in SECTION 8.9.
"CONSOLIDATED NET WORTH" means, as of any date of determination, an amount
equal to (a) Market Capitalization as of such date MINUS (b) Total Liabilities
(other than Excludable Convertible Securities) as of such date.
"CONSOLIDATED SECURED INDEBTEDNESS" means, as of any date of determination,
the sum of (a) the aggregate principal amount of all Indebtedness of the
Borrower and its Subsidiaries outstanding at such date which is secured by a
Lien on any asset of the Borrower or any Subsidiary, including without
limitation loans secured by mortgages, stock, or partnership interests, and
(b) the Borrower's pro rata share (based on economic interest) of any secured
debt of Investment Affiliates, without duplication of any Indebtedness included
under clause (a), after eliminating intercompany items.
"CONSOLIDATED SENIOR UNSECURED INDEBTEDNESS" means, as of any date of
determination, the sum of (a) the aggregate principal amount of all Indebtedness
of the Borrower and its Subsidiaries outstanding at such date (excluding
Indebtedness which is contractually subordinated to the Indebtedness of the
Borrower and its Subsidiaries under the Loan
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<PAGE>
Documents on customary terms acceptable to the Administrative Agent) which does
not constitute Consolidated Secured Indebtedness, and (b) the Borrower's pro
rata share (based on economic interest) of any unsecured debt of Qualifying
Investment Affiliates that own assets included in the calculation of Value of
Unencumbered Assets, without duplication of any Indebtedness included under
clause (a), after eliminating intercompany items.
"CONSOLIDATED TOTAL INDEBTEDNESS" means, as of any date of determination,
all Indebtedness of the Borrower and its Subsidiaries outstanding at such date,
determined on a consolidated basis in accordance with GAAP, after eliminating
intercompany items.
"CONSOLIDATED UNSECURED INDEBTEDNESS" means, as of any date of
determination, the sum of the aggregate principal amount of all Indebtedness for
borrowed money of the Borrower and its Subsidiaries outstanding at such date
which does not constitute Consolidated Secured Indebtedness, after eliminating
intercompany items.
"CONTROLLED GROUP" means all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common control
which, together with the Borrower or any of its Subsidiaries or Qualifying
Investment Affiliates, are treated as a single employer under Section 414 of the
Code.
"CONVERSION/CONTINUATION NOTICE" is defined in SECTION 2.10.
"CORPORATE BASE RATE" means a rate per annum equal to the corporate base
rate of interest announced by First Chicago from time to time, changing when and
as such corporate base rate changes.
"DEBT SERVICE" means, for any period, (a) Interest Expense for such period
PLUS (b) the aggregate amount of regularly scheduled principal payments of
Indebtedness (excluding optional prepayments and balloon principal payments due
on maturity in respect of any Indebtedness) required to be made during such
period by the Borrower, or any of its Subsidiaries PLUS (c) a percentage of all
such regularly scheduled principal payments required to be made during such
period by any Investment Affiliate on Indebtedness (excluding optional
prepayments and balloon principal payments due on maturity in respect of any
Indebtedness) taken into account in calculating Interest Expense, equal to the
greater of (x) the percentage of the principal amount of such Indebtedness for
which the Borrower or any Subsidiary is liable and (y) the percentage ownership
interest in such Investment Affiliate held by the Borrower and any Subsidiaries,
in the aggregate, without duplication.
"DEBT-TYPE PREFERRED STOCK" means, for any Person, any preferred stock
issued by such Person which is not typical preferred stock but instead is both
(i) redeemable by the holders thereof on any fixed date or upon the occurrence
of any event and (ii) as to payment of dividends or amounts on liquidation,
either guaranteed by any direct or indirect subsidiary of such Person or secured
by any property of such Person or any direct or indirect subsidiary of such
Person.
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"DEBT-TYPE PREFERRED STOCK EXPENSE" for any period for any Person, the
aggregate dividend payments due to the holders of Debt-Type Preferred Stock of
such Person, whether payable in cash or in kind, and whether or not actually
paid during such period.
"DEFAULT" means an event of default described in ARTICLE VIII.
"DEFAULTING LENDER" means any Lender which fails or refuses to perform its
obligations under this Agreement within the time period specified for
performance of such obligation, or, if no time frame is specified, if such
failure or refusal continues for a period of five Business Days after written
notice from the Administrative Agent; PROVIDED that if such Lender cures such
failure or refusal, such Lender shall cease to be a Defaulting Lender.
"DESIGNATED LENDER" means any Person who has been designated by a Lender to
fund Competitive Bid Loans.
"DESIGNATING LENDER" is defined in SECTION 13.4.
"DESIGNATION AGREEMENT" means a designation agreement entered into by a
Lender (other than a Designated Lender) and a Designated Lender, and accepted by
the Administrative Agent and Borrower, in substantially the form of Exhibit I
hereto.
"DOCUMENTATION AGENT" means Lehman Brothers Holdings Inc.
"DUFF & PHELPS" means Duff & Phelps Credit Rating Company.
"EBITDA" means income before extraordinary items (but after the impact of
minority interests and reduced to eliminate any income from Investment
Affiliates), as reported by the Borrower and its Subsidiaries on a consolidated
basis in accordance with GAAP, plus Interest Expense, depreciation, amortization
and income tax (if any) expense plus a percentage of such income (adjusted as
described above) of any Investment Affiliate equal to the allocable economic
interest in such Investment Affiliate held by the Borrower and any Subsidiaries,
in the aggregate (provided that no item of income or expense shall be included
more than once in such calculation even if it falls within more than one of the
foregoing categories).
"ENVIRONMENTAL LAWS" means any and all Federal, state, local or municipal
laws, rules, orders, regulations, statutes, ordinances, codes, decrees,
requirements of any Governmental Authority having jurisdiction over the
Borrower, its Subsidiaries or Investment Affiliates, or their respective assets,
and regulating or imposing liability or standards of conduct concerning
protection of human health or the environment, as now or may at any time
hereafter be in effect, in each case to the extent the foregoing are applicable
to the operations of the Borrower, any Investment Affiliate, or any Subsidiary
or any of their respective assets or Properties.
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<PAGE>
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"EXCLUDABLE CONVERTIBLE SECURITIES" means convertible subordinated debt
instruments which can be converted by the holder into common shares of the
Borrower at a price which is less than the market price for such shares as of
the end of the applicable quarter or which were converted during such quarter.
"FACILITY" is defined in RECITAL D.
"FACILITY FEE" is defined in SECTION 2.5.
"FACILITY LETTER OF CREDIT" means a Letter of Credit issued hereunder.
"FACILITY LETTER OF CREDIT OBLIGATIONS" means, as at the time of
determination thereof, all liabilities, whether actual or contingent, without
duplication, of the Borrower with respect to Facility Letters of Credit,
including the aggregate undrawn face amount of the then outstanding Facility
Letters of Credit, but not including Reimbursement Obligations.
"FACILITY TERMINATION DATE" means October 24, 1999, subject to extension
pursuant to the terms and conditions of SECTION 2.2 hereof or such earlier date
on which the principal balance of the Facility and all other sums due in
connection with the Facility shall be due as a result of the acceleration of the
Facility.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10 a.m. (Chicago
time) on such day on such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by the
Administrative Agent in its sole discretion.
"FINANCEABLE GROUND LEASE" means, a ground lease satisfactory to the
Required Lenders and the Administrative Agent's counsel in their reasonable
discretion, which must provide protections for a potential leasehold mortgagee
("MORTGAGEE") which include, among other things (i) a remaining term of no less
than 25 years from the Closing Date, (ii) that the lease will not be terminated
until the Mortgagee has received notice of a default and has had a reasonable
opportunity to cure or complete foreclosure, and fails to do so, (iii) a new
lease on the same terms to the Mortgagee as tenant if the ground lease is
terminated for any reason, (iv) non-merger of the fee and leasehold estates,
(v) free transferability of the tenant's interest under the ground lease and
(vi) that insurance proceeds and condemnation awards (from the fee interest as
well as the leasehold interest) will be applied pursuant to the terms of a
leasehold mortgage.
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"FIRST CHICAGO" means The First National Bank of Chicago in its individual
capacity, and its successors.
"FITCH" means Fitch Investors Service, L.P.
"FIXED RATE" as defined in SECTION 2.15.
"FIXED RATE ADVANCE" means an Advance which bears interest at a Fixed Rate.
"FULLY DILUTED DEBT SERVICE" means Debt Service less the amount of Debt
Service attributable to instruments which as of the end of the applicable
quarter are Excludable Convertible Securities.
"FUNDED PERCENTAGE" means, with respect to any Lender at any time, a
percentage equal to a fraction the numerator of which is the amount actually
disbursed and outstanding to Borrower by such Lender at such time (including
Swing Line Loans and Competitive Bid Loans), and the denominator of which is the
total amount disbursed and outstanding to Borrower by all of the Lenders at such
time (including Swing Line Loans and Competitive Bid Loans).
"FUNDS FROM OPERATIONS" means, for any period, net income for such period
before depreciation and amortization, gains or losses from extraordinary items
(but including gains or losses on sales of real estate in the ordinary course of
business, E.G. build to suits), gains or losses on investments in marketable
securities and any provisions/benefits for income taxes for such period, and
after adjustments for Investment Affiliates, including joint ventures.
"GAAP" means generally accepted accounting principles in the United States
of America as in effect from time to time, applied in a manner consistent with
that used in preparing the financial statements referred to in SECTION 7.1.
"GOVERNMENTAL AUTHORITY" means any nation or government, any state or other
political subdivision thereof and any quasi-governmental agency exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"GUARANTEE OBLIGATION" means, as to any Person (the "GUARANTEEING PERSON"),
any obligation (determined without duplication) of (a) the guaranteeing person
or (b) another Person (including, without limitation, any bank under any Letter
of Credit) to induce the creation of which the guaranteeing person has issued a
reimbursement, counter-indemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or
other obligations (the "PRIMARY OBLIGATIONS") of any other third Person (the
"PRIMARY OBLIGOR") in any manner, whether directly or indirectly, including,
without limitation, any obligation of the guaranteeing person, whether or not
contingent, (i) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (ii) to advance or supply
funds (1) for the purchase or payment of any such primary
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obligation or (2) to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency of the primary
obligor, (iii) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary obligation or (iv) otherwise
to assure or hold harmless the owner of any such primary obligation against loss
in respect thereof; PROVIDED, HOWEVER, that the term Guarantee Obligation shall
not include endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Guarantee Obligation of any
guaranteeing person shall be deemed to be the maximum stated amount of the
primary obligation relating to such Guarantee Obligation (or, if less, the
maximum stated liability set forth in the instrument embodying such Guarantee
Obligation), PROVIDED, that in the absence of any such stated amount or stated
liability, the amount of such Guarantee Obligation shall be such guaranteeing
person's maximum reasonably anticipated liability in respect thereof as
determined by the Borrower in good faith.
"INDEBTEDNESS" of any Person at any date means without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of such
Person for the deferred purchase price of property or services (other than
current trade liabilities and other accounts payable and accrued expenses
incurred in the ordinary course of business and payable in accordance with
customary practices), to the extent such obligations constitute indebtedness for
the purposes of GAAP, (c) any other indebtedness of such Person which is
evidenced by a note, bond, debenture or similar instrument, (d) all Capitalized
Lease Obligations, (e) all obligations of such Person in respect of acceptances
issued or created for the account of such Person, (f) all Guarantee Obligations
of such Person (excluding in any calculation of consolidated indebtedness of the
Borrower, Guarantee Obligations of the Borrower in respect of primary
obligations of any Subsidiary), (g) all reimbursement obligations of such Person
for Letters of Credit and other contingent liabilities, (h) all liabilities
secured by any Lien (other than Liens for taxes not yet due and payable) on any
property owned by such Person even though such Person has not assumed or
otherwise become liable for the payment thereof, (i) any repurchase obligation
or liability of such Person or any of its Subsidiaries with respect to accounts
or notes receivable sold by such Person or any of its Subsidiaries, (j) Debt-
Type Preferred Stock, and (k) such Person's pro rata share of debt in Investment
Affiliates and any loans where such Person is liable as a general partner,
provided, however, that Indebtedness shall not include Excludable Convertible
Securities or ground lease payments (other than Capitalized Lease Obligations).
"INTEREST EXPENSE" means all interest expense of the Borrower and its
Subsidiaries determined in accordance with GAAP PLUS (i) capitalized interest
not covered by an interest reserve from a loan facility, PLUS (ii) the allocable
portion (based on liability) of any accrued or paid interest incurred on any
obligation for which the Borrower is wholly or partially liable under repayment,
interest carry, or performance guarantees, or other relevant liabilities, PLUS
(iii) the allocable percentage of any accrued or paid interest incurred on any
Indebtedness of any Investment Affiliate, whether recourse or non-recourse,
equal to the applicable economic interest in such Investment Affiliate held by
the Borrower and any Subsidiaries, in the
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aggregate, PLUS (iv) Debt-Type Preferred Stock Expense, provided that no expense
shall be included more than once in such calculation even if it falls within
more than one of the foregoing categories.
"INTEREST PERIOD" means an Absolute Rate Interest Period or a LIBOR
Interest Period.
"INVESTMENT" of a Person means any loan, advance (other than commission,
travel and similar advances to officers and employees made in the ordinary
course of business and other than advances to, or deposits with, contractors and
suppliers in the ordinary course of business), extension of credit (other than
accounts receivable arising in the ordinary course of business on terms
customary in the trade), deposit account or contribution of capital by such
Person to any other Person or any investment in, or purchase or other
acquisition of, the stock, partnership interests, notes, debentures or other
securities of any other Person made by such Person.
"INVESTMENT AFFILIATE" means any Person in which the Borrower, directly or
indirectly, has an ownership interest, whose financial results are not
consolidated under GAAP with the financial results of the Borrower on the
consolidated financial statements of the Borrower.
"INVITATION FOR COMPETITIVE BID QUOTES" means a written notice to the
Lenders from the Administrative Agent in the form attached as EXHIBIT C-2 for
Competitive Bid Loans made pursuant to SECTION 2.14.
"ISSUANCE DATE" as defined in SECTION 3.4(a)(2).
"ISSUANCE NOTICE" as defined in SECTION 3.4(c).
"ISSUING BANK" means, with respect to each Facility Letter of Credit, any
Lender which issues such Facility Letter of Credit.
"LENDERS" means the lending institutions listed on the signature pages of
this Agreement, their respective permitted successors and assigns and any other
lending institutions that subsequently become parties to this Agreement.
"LENDING INSTALLATION" means, with respect to a Lender, any office, branch,
subsidiary or affiliate of such Lender.
"LETTER OF CREDIT" of a Person means a letter of credit which is issued
upon the application of such Person or upon which such Person is an account
party or for which such Person is in any way liable.
"LETTER OF CREDIT COLLATERAL ACCOUNT" is defined in SECTION 3.9.
"LETTER OF CREDIT REQUEST" as defined in SECTION 3.4(a).
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"LIBOR ADVANCE" means an Advance which bears interest at a LIBOR Rate,
whether a ratable Advance based on the LIBOR Applicable Margin or a Competitive
Bid Loan based on a Competitive LIBOR Margin.
"LIBOR APPLICABLE MARGIN" means, as of any date with respect to any LIBOR
Advance, the Applicable Margin in effect for such LIBOR Advance as determined in
accordance with SECTION 2.4 hereof.
"LIBOR BASE RATE" means, with respect to a LIBOR Advance for the relevant
LIBOR Interest Period, the rate determined by the Administrative Agent to be the
rate at which deposits in U.S. dollars are offered by First Chicago (or if First
Chicago is no longer either Administrative Agent or a Lender, then another
Lender agreed upon by Borrower and the Required Lenders) to first-class banks in
the London interbank market at approximately 11 a.m. (London time) two Business
Days prior to the first day of such LIBOR Interest Period, in the approximate
amount of the relevant LIBOR Advance and having a maturity approximately equal
to such LIBOR Interest Period. The LIBOR Base Rate shall be rounded to the next
higher multiple of 1/16 of 1% if the rate is not such a multiple.
"LIBOR INTEREST PERIOD" means, with respect to a LIBOR Advance, a period of
one, two, three or six months commencing on a Business Day selected by the
Borrower pursuant to this Agreement. Such LIBOR Interest Period with respect to
a LIBOR Advance shall end on (but exclude) the day which corresponds numerically
to such date one, two, three or six months thereafter, provided, however, that
if there is no such numerically corresponding day in such next, second, third or
sixth succeeding month, such LIBOR Interest Period shall end on the last
Business Day of such next, second, third or sixth succeeding month. If a LIBOR
Interest Period would otherwise end on a day which is not a Business Day, such
LIBOR Interest Period shall end on the next succeeding Business Day, provided,
however, that if said next succeeding Business Day falls in a new calendar
month, such LIBOR Interest Period shall end on the immediately preceding
Business Day. If Borrower and Lenders agree on a Fixed Rate Advance then
reference herein to LIBOR Interest Period shall also include the applicable
interest period agreed upon among Borrower and Lenders for the Fixed Rate
Advance.
"LIBOR LOAN" means a Loan which bears interest at a LIBOR Rate.
"LIBOR RATE" means, with respect to a LIBOR Advance for the relevant LIBOR
Interest Period, the sum of (i) the quotient of (a) the LIBOR Base Rate
applicable to such LIBOR Interest Period, divided by (b) one minus the Reserve
Requirement (expressed as a decimal) applicable to such LIBOR Interest Period,
plus (ii) the LIBOR Applicable Margin in effect on the day that such LIBOR Base
Rate was determined.
"LIEN" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or
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other title retention agreement but excluding the leasehold interest of a lessee
in a lease that is not a Capitalized Lease).
"LIKE-KIND EXCHANGE" means any exchange of like-kind properties in
accordance with Section 1031 of the Code.
"LOAN" means, with respect to a Lender, such Lender's portion of any
Advance.
"LOAN DOCUMENTS" means this Agreement, the Notes, and any guaranty or other
document executed and delivered by the Borrower or a Qualifying Investment
Affiliate from time to time and evidencing, securing or guaranteeing payment of
indebtedness or obligations incurred by the Borrower under this Agreement, as
any of the foregoing may be amended or modified from time to time.
"MARKET CAPITALIZATION" means, without duplication, (a) Total Property
Operating Income (allocated appropriately by category of Property) capitalized
at the Applicable Cap Rates for each Property type, plus (b) other income (other
than income derived from Qualified Mortgages and Cash and Cash Equivalents)
capitalized at 15%, plus (c) the Value of Qualified Mortgages, plus (d) 100% of
the value of Preleased Assets Under Development but in no event shall the value
of Preleased Assets Under Development exceed $50,000,000, plus (e) the amount of
any Unrestricted Cash and Cash Equivalents owned by Borrower and its
Subsidiaries and the pro rata share of Unrestricted Cash and Cash Equivalents
owned by Qualifying Investment Affiliates, plus (f) 50% of the lower of book
value or market value of land not under development which is adjacent to
stabilized improved properties (whether or not such stabilized improved
properties are owned by the Borrower or its Subsidiaries). Market
Capitalization shall be determined based on the results of the most recent
fiscal quarter as appropriately annualized in the case of items (a) and (b) in
the foregoing definition.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (i) the
business, Property, results of operations or financial condition of the Borrower
and its Subsidiaries taken as a whole or (ii) the ability of the Borrower to
perform its obligations under the Loan Documents, or (iii) the validity or
enforceability of any of the Loan Documents or the remedies or material rights
of the Administrative Agent or the Lenders thereunder.
"MATERIALS OF ENVIRONMENTAL CONCERN" means any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as such
in or under any Environmental Law, including, without limitation, asbestos,
radon, polychlorinated biphenyls and urea-formaldehyde insulation.
"MAXIMUM LEGAL RATE" means the maximum nonusurious interest rate, if any,
that at any time or from time to time may be contracted for, taken, reserved,
charged or received on the indebtedness evidenced by the Note and as provided
for herein or in the Note or other
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Loan Documents, under the laws of such state or states whose laws are held by
any court of competent jurisdiction to govern the interest rate provisions of
the Loan.
"MOODY'S" means Moody's Investors Service, Inc. and its successors.
"MULTIEMPLOYER PLAN" means a Plan to which more than one employer is
obligated to make contributions, and which is maintained pursuant to one or more
collective bargaining agreements to which the Borrower or any member of the
Controlled Group is a party.
"NON-INDUSTRIAL PROPERTIES" is defined in RECITAL A.
"NOTE" means a promissory note, in substantially the form of EXHIBIT B-1
hereto, duly executed by the Borrower and payable to the order of a Lender in
the amount of its Commitment, including any amendment, modification, renewal or
replacement of such promissory note or a competitive bid note, in substantially
the form of Exhibit B-2 hereto, duly executed by the Borrower and payable to the
order of a Competitive Bid Lender, including any amendment, modification,
renewal or replacement of such note.
"NOTICE OF ASSIGNMENT" is defined in SECTION 13.3.2.
"OBLIGATIONS" means all unpaid principal of and accrued and unpaid interest
on the Notes, the Facility Letter of Credit Obligations and all accrued and
unpaid fees and all expenses, reimbursements, indemnities and other obligations
of the Borrower or if and to the extent applicable, any Qualifying Investment
Affiliates to the Lenders or to any Lender, the Administrative Agent, the
Documentation Agent, or any indemnified party hereunder arising under the Loan
Documents.
"PARTICIPANTS" is defined in SECTION 13.2.1.
"PAYMENT DATE" means, with respect to the payment of interest accrued on
any CBR Advance or any Fixed Rate Advance, the first Business Day of each
calendar month (and in addition the last day of the applicable interest period
for a Fixed Rate Advance), and with respect to the payment of interest accrued
on any LIBOR Advance, the last day of the applicable LIBOR Interest Period, and
if the length of the LIBOR Interest Period is greater than 3 months, interest
shall also be payable every 3 months during the term of such LIBOR Interest
Period.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"PERCENTAGE" means for each Lender the percentage of the Aggregate
Commitment allocated to such Lender as set forth opposite its signature.
"PERMITTED LIENS" are defined in SECTION 7.16.
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"PERSON" means any natural person, corporation, firm, joint venture,
partnership, association, enterprise, trust or other entity or organization, or
any government or political subdivision or any agency, department or
instrumentality thereof.
"PLAN" means an employee pension benefit plan which is covered by Title IV
of ERISA or subject to the minimum funding standards under Section 412 of the
Code as to which the Borrower or any member of the Controlled Group may have any
liability.
"PRELEASED ASSETS UNDER DEVELOPMENT" means, as of any date of
determination, any Project owned by Borrower or a Qualifying Investment
Affiliate (i) which is then treated as an asset under development under GAAP,
(ii) which is located in the United States of America (iii) which has been
preleased under binding leases to unaffiliated tenants to the extent of at least
fifty percent (50%) of the projected gross leasable area of such Project and
(iv) which has been designated by Borrower in a written notice to Administrative
Agent as a "Preleased Asset Under Development" for purposes of this Agreement,
with the land and improvements being valued at then-current book value, as
determined in accordance with GAAP, provided however, (a) in no event shall any
Project be included in such category of "Preleased Assets Under Development" for
more than two hundred seventy (270) days after construction of such asset
commenced and (b) upon written designation to Administrative Agent delivered
during such 270-day period, any Project which has previously been designated as
a "Preleased Asset Under Development", shall be removed from such category.
Upon the earlier to occur of (x) the expiration of any above-described 270-day
period or (y) Administrative Agent's receipt of Borrower's written designation
in accordance with (b) above, any Project which has been designated a "Preleased
Asset Under Development" shall automatically lose such designation (effective as
of the next determination date) for the purpose of determining Market
Capitalization.
"PROJECT" means any Property owned or operated by the Borrower or any
Subsidiary or Investment Affiliate and operated or intended to be operated as an
industrial or warehouse property.
"PROPERTY" means each parcel of real property owned (including leasehold
interests) or operated by the Borrower, any Subsidiary or Investment Affiliate.
"PROPERTY BREACH" is defined in SECTION 7.30.
"PROPERTY OPERATING INCOME" means, with respect to any Property owned by
Borrower, any Subsidiary or any Investment Affiliate, for any period, earnings
from rental operations after deduction for ground lease rents (computed in
accordance with GAAP but without deduction for reserves) attributable to such
Property plus depreciation, amortization and interest expense for such period,
and, if such period is less than a year, adjusted by straight lining various
ordinary operating expenses which are payable less frequently than once during
every such period (e.g. real estate taxes and insurance).
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"PURCHASER" is defined in SECTION 13.3.1.
"QUALIFIED LENDER" is defined in SECTION 13.3.1.
"QUALIFYING INVESTMENT AFFILIATE" means (a) any Subsidiary or Investment
Affiliate with respect to which (i) the Borrower or one of its Wholly-Owned
Subsidiaries has management control of the Subsidiary or Investment Affiliate
and each of its assets and (ii) the Borrower or such Wholly-Owned Subsidiary, as
the case may be, is not subject to restrictions contained in the organizational
documents of any of such entities (or any such restrictions have expired) on its
ability to sell or finance the real property owned by such Subsidiary or
Investment Affiliate or its interest in the Subsidiary or Investment Affiliate,
and (b) CenterPoint Realty Services Corporation ("CRS"), (c) CenterPoint Realty
Management Corporation, (d) CP Realty Management Co. I, and (e) CenterPoint
O'Hare Limited Liability Company provided that the entities described in clauses
(b) through (e) inclusive do not materially change the nature of their current
business or operations.
"QUALIFIED MORTGAGE" means a first or second mortgage held by Borrower on
any real estate asset operated or intended to be operated as an industrial
property.
"REGISTER" is defined in SECTION 13.6.
"REGULATION U" means Regulation U of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the purpose of purchasing or carrying margin
stocks applicable to member banks of the Federal Reserve System.
"REIMBURSEMENT OBLIGATIONS" means at any time, the aggregate of the
Obligations of the Borrower to the Lenders, the Issuing Bank and the
Administrative Agent in respect of all unreimbursed payments or disbursements
made by the Lenders, the Issuing Bank and the Administrative Agent under or in
respect of the Facility Letters of Credit.
"REPORTABLE EVENT" means a reportable event as defined in Section 4043 of
ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days of
the occurrence of such event, provided, however, that a failure to meet the
minimum funding standard of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such waiver of the
notice requirement in accordance with either Section 4043(a) of ERISA or Section
412(d) of the Code.
"REQUIRED LENDERS" means Lenders in the aggregate having at least 66 2/3%
of the Aggregate Commitment (not held by Defaulting Lenders who are not entitled
to vote) or, if the Aggregate Commitment has been terminated, Lenders in the
aggregate holding at least 66
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2/3% of the aggregate unpaid principal amount of the outstanding Advances (not
held by Defaulting Lenders who are not entitled to vote).
"RESERVE REQUIREMENT" means, with respect to a LIBOR Loan and LIBOR
Interest Period, that percentage (expressed as a decimal) which is in effect on
such day, as prescribed by the Federal Reserve Board or other governmental
authority or agency having jurisdiction with respect thereto for determining the
maximum reserves (including, without limitation, basic, supplemental, marginal
and emergency reserves) for eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D) maintained by a member bank of the
Federal Reserve System.
"SECTION" means a numbered section of this Agreement, unless another
document is specifically referenced.
"SENIOR LOANS" as defined in SECTION 11.15.
"SINGLE EMPLOYER PLAN" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
"SUBSIDIARY" means a corporation, partnership or other entity of which
shares of stock or other ownership interests having ordinary voting power (other
than stock or such other ownership interests having such power only by reason of
the happening of a contingency) to elect a majority of the board of directors or
other managers of such corporation, partnership or other entity are at the time
owned, or the management of which is otherwise controlled, directly or
indirectly through one or more intermediaries, or both, by Borrower, and
provided such corporation, partnership or other entity is consolidated with
Borrower for financial reporting purposes under GAAP.
"SUBSTANTIAL PORTION" means, with respect to the Property of the Borrower
or its Subsidiaries, Property which represents more than 10% of the Market
Capitalization.
"S&P" means Standard & Poor's Ratings Group and its successors.
"SWING LINE LENDER" shall mean the Lender agreed upon by Borrower and the
designated Swing Line Lender to provide Swing Line Loans. The initial Swing Line
Lender is the Administrative Agent, in its capacity as a Lender.
"SWING LINE LOANS" means Loans of up to $10,000,000 made by the Swing Line
Lender in accordance with SECTION 2.13 hereof.
"TOTAL LIABILITIES" means all Indebtedness plus all other GAAP liabilities
of the Borrower and its Subsidiaries.
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"TOTAL PROPERTY OPERATING INCOME" means the sum of (i) Property Operating
Income for each Property owned (including leaseholds) by Borrower and its
Subsidiaries, and (ii) (without redundancy) the Borrower's pro rata share (based
on economic interest) of Property Operating Income from Property owned
(including leaseholds) by Investment Affiliates. The earnings from rental
operations shall be adjusted to include pro forma earnings (as substantiated to
the reasonable satisfaction of the Administrative Agent) for an entire quarter
for any Property acquired or placed in service during the quarter and to exclude
earnings during such quarter from any Property not owned as of the end of the
quarter.
"TRANSFEREE" is defined in SECTION 13.4.
"TYPE" means, with respect to any Advance, its nature as a CBR Advance or a
LIBOR Advance.
"UNENCUMBERED ASSET" means, with respect to any Property owned by Borrower
or any Qualifying Investment Affiliate (provided that leasehold interests shall
be included only if such interest is pursuant to a Financeable Ground Lease)
which is in service, at any date of determination, the circumstance that such
asset on such date (a) is not subject to any Liens other than those in favor of
the Lenders or claims (including restrictions on transferability or
assignability) of any kind (including any such Lien, claim or restriction
imposed by the organizational documents of any Qualifying Investment Affiliate,
but excluding the Permitted Liens described in SECTION 7.16(i)-(v)), (b) is not
subject to any agreement (including (i) any agreement governing Indebtedness
incurred in order to finance or refinance the acquisition of such asset, and
(ii) if applicable, the organizational documents of any Qualifying Investment
Affiliate) which prohibits or limits the ability of the Borrower, or such
Qualifying Investment Affiliate, as the case may be, to create, incur, assume or
suffer to exist any Lien upon any assets or Capital Stock of the Borrower, or
any of its Qualifying Investment Affiliates, (c) is not subject to any agreement
(including any agreement governing Indebtedness incurred in order to finance or
refinance the acquisition of such asset) which entitles any Person to the
benefit of any Lien (but excluding liens in favor of Lenders and other Permitted
Liens) on any assets or Capital Stock of the Borrower or any of its Qualifying
Investment Affiliates or would entitle any Person to the benefit of any Lien
(but excluding liens in favor of Lenders and the Permitted Liens described in
SECTION 7.16(i)-(v)) on such assets or Capital Stock upon the occurrence of any
contingency (including, without limitation, pursuant to an "equal and ratable"
clause), (d) is not the subject of a material environmental issue and, if
requested by the Administrative Agent, Borrower shall provide a current or
updated supplemental environmental investigative report which may be an
environmental site assessment conducted in accordance with the minimum
specifications in EXHIBIT H (or one which is not more than two years old for
Unencumbered Assets owned as of the Closing Date), (e) is not the subject of any
material architectural/engineering issue and, if requested by the Administrative
Agent, Borrower shall provide a current engineering report (or one that is no
more than two years old for Unencumbered Assets owned as of the Closing Date),
and (f) is materially compliant with property related representations and
covenants contained in SECTION 6.24 hereof. No Property of a Qualifying
Investment Affiliate shall be deemed to be unencumbered unless (i) both such
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Property and all Capital Stock of such Qualifying Investment Affiliate held by
the Borrower is unencumbered, (ii) none of the events described in SECTIONS 8.7,
8.8 or 8.9 has occurred with respect to such Qualifying Investment Affiliate
(without regard to its Market Capitalization or whether its Indebtedness is
recourse) and (iii) the aggregate Value of Unencumbered Assets attributable to
Properties owned by Qualifying Investment Affiliates does not exceed 10% of the
total Value of Unencumbered Assets except that Properties owned by a Qualifying
Investment Affiliate shall not be counted toward such 10% cap if the Qualifying
Investment Affiliate has become a co-obligor or guarantor on the Facility (with
liability limited to the applicable Unencumbered Asset by executing and
delivering to the Administrative Agent a guaranty in form acceptable to the
Required Lenders) or if the Borrower's interest in such Qualifying Investment
Affiliate has been validly pledged for the benefit of the Lenders so, pursuant
to documents in form and substance reasonably satisfactory to the Required
Lenders, that the Lenders can succeed to all of the Borrower's rights with
respect to such Qualifying Investment Affiliate.
"UNFUNDED LIABILITIES" means the amount (if any) by which the present value
of all vested nonforfeitable benefits under all Single Employer Plans determined
under Section 4001(a)(18)(A) of ERISA exceeds the fair market value of all such
Plan assets allocable to such benefits determined as of the then most recent
valuation date for such Plans.
"UNMATURED DEFAULT" means an event which but for the lapse of time or the
giving of notice, or both, would constitute a Default, other than the occurrence
of an event under SECTION 7.14 during the grace period provided therein.
"UNRESTRICTED CASH AND CASH EQUIVALENTS" means, as of any date of
determination, the sum of (a) the aggregate amount of Unrestricted cash and (b)
the aggregate amount of Unrestricted Cash Equivalents (valued at the fair market
value). As used in this definition, "UNRESTRICTED" means the specified asset is
not subject to any Liens or claims of any kind in favor of any Person.
"VALUE OF QUALIFIED MORTGAGES" means the sum of the value of each Qualified
Mortgage which shall be the lesser of (i) the outstanding principal balance of
such Qualified Mortgage at the time of any determination thereof, or (ii) 85% of
the value of the collateral encumbered by such Qualified Mortgage (less the
outstanding balance of the first mortgage if the Qualified Mortgage is a second
mortgage) determined by capitalizing the operating income of such collateral,
computed in the same manner as the Property Operating Income at 9.5%, provided
that the aggregate principal balance of all Qualified Mortgages included in this
determination shall not exceed $50,000,000.
"VALUE OF UNENCUMBERED ASSETS" means, as of the end of a quarter, the sum
of (a) the value of all Unencumbered Assets wholly owned by the Borrower, PLUS
(b) the allocable share based on Borrower's economic interest in the value of
the Unencumbered Assets owned by Qualifying Investment Affiliates, plus (c) the
amount of Unrestricted Cash and Cash Equivalents owned by Borrower, PLUS (d) the
allocable share based on Borrower's economic
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interest in the amount of Unrestricted Cash and Cash Equivalents owned by a
Qualifying Investment Affiliate. Unencumbered Assets shall be valued by
capitalizing at a rate equal to the Applicable Cap Rate, the Property Operating
Income from each Property which is an Unencumbered Asset for such quarter less,
without duplication, an assumed management fee of 1% of gross revenues
(excluding tenant recoveries) and the assumed Capital Expenditure Reserve
Amount. If a Property is acquired during a quarter then Borrower shall be
entitled to include pro forma Property Operating Income from such Property for
the entire quarter in the foregoing calculation. If a Property is no longer
owned as of the last day of a quarter, then no value shall be included based on
capitalizing Property Operating Income from such Property.
"WHOLLY-OWNED SUBSIDIARY" of a Person means (i) any Subsidiary all of the
outstanding voting securities of which shall at the time be owned or controlled,
directly or indirectly, by such Person or one or more Wholly-Owned Subsidiaries
of such Person, or (ii) any partnership, association, joint venture or similar
business organization of which 100% of the ownership interests having ordinary
voting power and at least 95% of all other classes of ownership interest shall
at the time be so owned or controlled by such Person.
The foregoing definitions shall be equally applicable to both the singular
and plural forms of the defined terms.
ARTICLE II
THE CREDIT
2.1. COMMITMENT. From and including the date of this Agreement and prior
to the Facility Termination Date, each Lender severally agrees, subject to the
terms and conditions set forth in this Agreement, to make Loans to the Borrower
from time to time in amounts not to exceed in the aggregate at any one time
outstanding the amount of such Lender's Commitment minus such Lender's
Percentage of Facility Letter of Credit Obligations and, minus such Lender's
Percentage of any outstanding Swing Line Loans. Subject to the terms of this
Agreement, the Borrower may borrow, repay and reborrow at any time prior to the
Facility Termination Date. The Commitments of each Lender to lend hereunder
shall expire on the Facility Termination Date.
2.2. FINAL PRINCIPAL PAYMENT AND EXTENSION OPTION. Any outstanding
Advances and all other unpaid Obligations shall be paid in full by the Borrower
on the Facility Termination Date. The Facility Termination Date can be extended
for one year upon notice to the Administrative Agent at least ninety (90) days
before the original Facility Termination Date if (i) no Default has occurred and
is continuing at the time of such notice and at the time of the original
Facility Termination Date, (ii) all of the Lenders agree to such extension, and
(iii) the Borrower pays an extension fee equal to 0.15% of the Aggregate
Commitment at the time of the extension. If the Borrower gives such notice to
the Administrative Agent, the
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Administrative Agent shall notify the Lenders within 10 days of receipt of such
request. The Lenders shall have 30 days after receipt of such notice to notify
Administrative Agent as to whether they accept or reject such extension request
and Administrative Agent shall notify Borrower at least 45 days prior to the
Facility Termination Date of the acceptance or rejection of the Lenders of
Borrower's request to extend the Facility Termination Date. If the foregoing
conditions are satisfied other than the condition requiring the consent of all
Lenders, then Borrower shall have the right to replace any Lender that does not
agree to the extension provided that: (a) Borrower notifies such Lender that it
has elected to replace such Lender and notifies such Lender and the
Administrative Agent of the identity of the proposed replacement Lender at least
15 Business Days prior to the Facility Termination Date and (b) the proposed
replacement Lender is a Qualifying Lender. The Lender being replaced shall
assign its Percentage of the Aggregate Commitment and its rights and obligations
under this Facility to the replacement Lender pursuant to an Assignment and the
replacement Lender shall assume such Percentage of the Aggregate Commitment and
the related obligations under this Facility prior to the Facility Termination
Date. The purchase by the replacement Lender shall be at par (plus all accrued
and unpaid interest and any other sums owed to such Lender being replaced
hereunder) which shall be paid to the Lender being replaced upon the execution
and delivery of the Assignment and no fee pursuant to SECTION 13.3.2(ii) shall
be required.
2.3. RATABLE LOANS. Each Advance hereunder shall consist of Loans made
from the several Lenders ratably in proportion to the ratio that their
respective Commitments bear to the Aggregate Commitment except for Swing Line
Loans which shall be made by the Swing Line Lender in accordance with
SECTION 2.13 and Competitive Bid Loans made in accordance with SECTION 2.14.
The ratable Advances may be CBR Advances, LIBOR Advances, Fixed Rate Advances,
or a combination thereof, selected by the Borrower in accordance with SECTIONS
2.9 and 2.10.
2.4. APPLICABLE MARGINS. The CBR Applicable Margin and the LIBOR
Applicable Margin to be used in calculating the interest rate applicable to
different Types of Advances shall vary from time to time in accordance with the
ratings from Moody's and S&P for either Borrower's long-term unsecured debt or
this Facility. The applicable debt ratings and the Applicable Margins are set
forth in the table attached as EXHIBIT A. All margins and fees change as and
when the rating classification changes. In the event both rating agencies have
issued a rating and the rating agencies are split on the rating for the
Borrower's long-term unsecured debt or this Facility, the lower rating shall,
except as set forth below, be deemed to be the applicable rating (e.g., if the
Borrower's Moody's long-term unsecured debt or this Facility's rating is Baa1
and its S&P long-term unsecured debt or this Facility's rating is BBB then the
Applicable Margins shall be computed based on the S&P rating). In the event
that Moody's and S&P issue split ratings on the Borrower's long term unsecured
debt, Borrower may obtain a third rating from Duff & Phelps or Fitch and the
higher of the Moody's or S&P rating shall be deemed applicable until the earlier
of (i) 90 days after the date of the occurrence of such split ratings or (ii)
the date of the issuance of the third rating by Duff & Phelps or Fitch. After
90 days, if a third rating has not been issued, the lower of the Moody's or S&P
rating shall apply. In the event Moody's and S&P issue different ratings of the
Borrower's
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long term unsecured debt and the Borrower obtains a third rating which is
different from the Moody's and S&P ratings, the middle rating of the three
ratings shall be deemed the applicable rating. In the event Moody's and S&P
issue different ratings on the Borrower's long term unsecured debt and the
Borrower obtains a third rating which is the equivalent of the Moody's or S&P
rating, the third rating confirming either the Moody's or S&P rating, as the
case may be, shall be deemed to be the applicable rating. In the event either
Moody's or S&P has not issued a rating, the rating from the agency that has
issued its rating shall govern, subject to the provisions contained in the next
sentence. In the event that S&P has not issued a rating within six months of
the Closing Date, the rating shall be deemed to be BBB-. The Applicable Margins
shall be adjusted effective on the next Business Day following any change in the
Borrower's (or the Facility's if applicable) Moody's long-term unsecured debt
rating and/or S&P's long-term unsecured debt rating, as the case may be
(provided that if Administrative Agent does not receive notice of a change in
rating within forty-five days after it occurs then any reduction in Applicable
Margin shall be effective only when such notice is received). In the event of a
rating agency downgrade, the Borrower will receive a credit for any incremental
borrowing cost should the rating agency(ies) restore the higher rating within a
ninety day period. In the event that either S&P or Moody's shall discontinue
their ratings of the REIT industry or the Borrower's long-term unsecured debt or
this Facility, a mutually agreeable substitute rating agency shall be selected
by the Required Lenders and the Borrower. If the Required Lenders and the
Borrower cannot agree on a substitute rating agency within forty-five (45) days
of such discontinuance, the Applicable Margin to be used for the calculation of
interest on Advances hereunder shall be Pricing Category 4 (as defined in
EXHIBIT A). Lenders acknowledge that the rating for Borrower's unsecured long
term debt may be issued even though Borrower has no outstanding unsecured long
term debt.
If a rating agency downgrade or discontinuance results in an increase in
the CBR Applicable Margin or the LIBOR Applicable Margin and if such increase is
reversed and the affected Applicable Margin is restored within ninety (90) days
thereafter, at the Borrower's request, the Borrower shall receive a credit
against interest next due the Lenders equal to interest accrued from time to
time during such period of downgrade or discontinuance and actually paid by the
Borrower on the Advances at the differential between such Applicable Margins.
2.5. FACILITY FEE. The Borrower agrees to pay to the Administrative Agent
for the account of each Lender a facility fee (the "FACILITY FEE") calculated at
a per annum percentage ("FACILITY FEE RATE") of the total Aggregate Commitment.
The Facility Fee Rate shall vary from time to time based on the Borrower's long
term unsecured debt rating as set forth in the table attached hereto as EXHIBIT
A. The Facility Fee shall be paid quarterly in arrears on the last day of each
calendar quarter, beginning December 31, 1997 for the period from the date
hereof to December 31, 1997.
2.6. OTHER FEES. The Borrower agrees to pay all other fees payable to the
Administrative Agent and the Arrangers pursuant to the Borrower's prior letter
agreements with them, including an annual administrative agent fee of $30,000 to
the Administrative
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Agent, payable quarterly in arrears (the "Administrative Agent's fee")
commencing December 31, 1997.
2.7. MINIMUM AMOUNT OF EACH ADVANCE. Each LIBOR Advance shall be in the
minimum amount of $2,000,000 (and in multiples of $100,000 if in excess
thereof), and each CBR Advance shall be in the minimum amount of $1,000,000 (and
in multiples of $100,000 if in excess thereof), provided, however, that any CBR
Advance may be in the amount of the unused Aggregate Commitment. Borrower
acknowledges that any LIBOR Advance not in a multiple of $750,000 or $1,000,000
may result in a higher LIBOR Rate.
2.8. OPTIONAL PRINCIPAL PAYMENTS. The Borrower may from time to time pay,
without penalty or premium, all or any part of outstanding CBR Advances or LIBOR
Advances, upon two Business Days' prior notice to the Administrative Agent and
each Lender and each such prepayment shall be in a minimum amount of $50,000.00
or in multiples thereof, provided that a LIBOR Advance may not be paid prior to
the last day of the applicable LIBOR Interest Period unless Borrower pays the
applicable Break-up Fee.
2.9. METHOD OF SELECTING TYPES AND INTEREST PERIODS FOR NEW ADVANCES.
Unless Borrower and Lenders have agreed upon a Fixed Rate in accordance with
SECTION 2.15, the Borrower shall select the Type of Advance and, in the case of
each LIBOR Advance, the LIBOR Interest Period applicable to each Advance from
time to time. The Borrower shall give the Administrative Agent irrevocable
notice (a "BORROWING NOTICE") (i) not later than 10:00 a.m. (Chicago time) at
least one Business Day before the Borrowing Date of each CBR Advance, (ii) not
later than 10:00 a.m. (Chicago time) at least three Business Days before the
Borrowing Date for each LIBOR Advance, and (iii) not later than 11:00 a.m.
(Chicago time) on the Borrowing Date for each Swing Line Loan, specifying:
(i) the Borrowing Date, which shall be a Business Day, of such
Advance,
(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected (which must be a CBR Advance in the
case of Swing Line Loans), and
(iv) in the case of each LIBOR Advance, the LIBOR Interest Period
applicable thereto.
The Borrower shall also deliver together with each Borrowing Notice the
compliance certificate required in SECTION 5.2 and otherwise comply with the
conditions set forth in SECTION 5.2 for Advances. The Administrative Agent
shall provide each Lender by facsimile with a copy of each Borrowing Notice and
compliance certificate on the same Business Day it is received.
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Not later than noon (Chicago time) on each Borrowing Date, each Lender
shall make available its Loan or Loans, in funds immediately available in
Chicago to the Administrative Agent at the account specified pursuant to ARTICLE
XIV. The Lenders shall not be obligated to match fund their LIBOR Advances.
The Administrative Agent will promptly make the funds so received from the
Lenders available to the Borrower from the Administrative Agent's aforesaid
account.
No LIBOR Interest Period may end after the Facility Termination Date and,
unless all of the Lenders otherwise agree in writing, in no event may there be
more than seven (7) different LIBOR Interest Periods for LIBOR Advances
outstanding at any one time.
2.10. CONVERSION AND CONTINUATION OF OUTSTANDING ADVANCES. CBR
Advances shall continue as CBR Advances unless and until such CBR Advances are
converted into LIBOR Advances. Each LIBOR Advance shall continue as a LIBOR
Advance until the end of the then applicable LIBOR Interest Period therefor, at
which time such LIBOR Advance shall be automatically converted into a CBR
Advance unless the Borrower shall have given the Administrative Agent a
Conversion/Continuation Notice requesting that, at the end of such LIBOR
Interest Period, such LIBOR Advance shall continue as a LIBOR Advance for the
same or another LIBOR Interest Period. Subject to the terms of SECTION 2.7, the
Borrower may elect from time to time to convert all or any part of an Advance of
any Type into any other Type of Advance; provided that any conversion of any
LIBOR Advance shall be made on, and only on, the last day of the Interest Period
applicable thereto unless Borrower pays the applicable Break-up Fee. The
Borrower shall give the Administrative Agent irrevocable notice (a
"CONVERSION/CONTINUATION NOTICE") of each conversion of an Advance not later
than 10:00 a.m. (Chicago time) at least one Business Day, in the case of a
conversion into a CBR Advance, or three Business Days, in the case of a
conversion into or continuation of a LIBOR Advance, prior to the date of the
requested conversion or continuation, specifying:
(i) the requested date which shall be a Business Day, of such
conversion or continuation;
(ii) the aggregate amount and Type of the Advance which is to be
converted or continued; and
(iii) the amount and Type(s) of Advance(s) into which such Advance is
to be converted or continued and, in the case of a conversion
into or continuation of a LIBOR Advance, the duration of the
LIBOR Interest Period applicable thereto.
2.11. CHANGES IN INTEREST RATE, ETC. Each CBR Advance shall bear
interest on the outstanding principal amount thereof, for each day from and
including the date such Advance is made or is converted from a LIBOR Advance
into a CBR Advance pursuant to SECTION 2.10 to but excluding the date it is paid
or is converted into a LIBOR Advance pursuant to SECTION 2.10 hereof, at a rate
per annum equal to the CBR Rate for such day. Changes in the rate of
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interest on that portion of any Advance maintained as a CBR Advance will take
effect simultaneously with each change in the Corporate Base Rate. Each LIBOR
Advance shall bear interest from and including the first day of the LIBOR
Interest Period applicable thereto to (but not including) the last day of such
LIBOR Interest Period at the LIBOR Rate determined as applicable to such LIBOR
Advance.
2.12. RATES APPLICABLE AFTER DEFAULT. Notwithstanding anything to the
contrary contained in SECTION 2.9 or 2.10, during the continuance of a Default
or Unmatured Default, the Required Lenders may, at their option, by written
notice to the Borrower (which notice may be revoked at the option of the
Required Lenders notwithstanding any provision of SECTION 9.2 requiring
unanimous consent of the Lenders to changes in interest rates), declare that no
Advance may be made as, converted into or continued beyond its current term as a
LIBOR Advance. During the continuance of a Default the Required Lenders may, at
their option, by prior written notice to the Borrower (which notice may be
revoked at the option of the Required Lenders notwithstanding any provision of
SECTION 9.2 requiring unanimous consent of the Lenders to changes in interest
rates), declare that (i) each LIBOR Advance shall bear interest for the
applicable LIBOR Interest Period at the rate otherwise applicable to such LIBOR
Interest Period plus 2% per annum until such Default shall have been cured and
(ii) each CBR Advance shall bear interest at a rate per annum equal to the CBR
Rate otherwise applicable to the CBR Advance plus 2% per annum until such
Default shall have been cured; provided that such rates shall become applicable
automatically without notice to the Borrower if a Default occurs under
SECTION 8.7 or SECTION 8.8.
2.13. SWING LINE LOANS. In addition to the other options available to
Borrower hereunder, up to $10,000,000 of the Swing Line Lender's commitment,
shall be available for Swing Line Loans subject to the following terms and
conditions. Swing Line Loans shall be made available for same day borrowings
provided that notice is given in accordance with SECTION 2.9 hereof. All Swing
Line Loans shall bear interest at the CBR Rate. In no event shall the Swing
Line Lender be required to fund a Swing Line Loan if it would increase the total
aggregate outstanding Loans by Swing Line Lender hereunder plus its Percentage
of Facility Letter of Credit Obligations to an amount in excess of its
Commitment. Upon request of the Swing Line Lender, each Lender irrevocably
agrees to purchase its Percentage of any Swing Line Loan made by the Swing Line
Lender regardless of whether the conditions for disbursement are satisfied at
the time of such purchase, including the existence of an Event of Default
hereunder provided no Lender shall be required to have total outstanding Loans
plus its Percentage of Facility Letters of Credit to be in an amount greater
than its Commitment. Such purchase shall take place on the date of the request
by Swing Line Lender so long as such request is made by noon (Chicago time),
otherwise on the Business Day following such request. All requests for purchase
shall be in writing. From and after the date it is so purchased, each such Loan
shall be treated as a Loan made by the purchasing Lender and not by the selling
Lender for all purposes under this agreement, and shall no longer be considered
a Swing Line Loan except that all interest accruing on or attributable to such
Loan for the period prior to the date of such purchase shall be paid when due by
the Borrower to the Administrative Agent for the benefit of the Swing Line
Lender and all such amounts accruing
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on or attributable to such Loans for the period from and after the date of such
purchase shall be paid when due by the Borrower to the Administrative Agent for
the benefit of the purchasing Lender. If prior to purchasing its Percentage in
a Swing Line Loan one of the events described in SECTION 8.7 or 8.8 shall have
occurred and such event prevents the consummation of the purchase contemplated
by preceding provisions, each Lender will purchase an undivided participating
interest in the outstanding Swing Line Loan in an amount equal to its Percentage
of such Swing Line Loan. From and after the date of each Lender's purchase of
its participating interest in a Swing Line Loan, if the Swing Line Lender
receives any payment on account thereof, the Swing Line Lender will distribute
to such Lender its participating interest in such amount (appropriately
adjusted, in the case of interest payments, to reflect the period of time during
which such Lender's participating interest was outstanding and funded);
provided, however, that in the event that such payment was received by the Swing
Line Lender and is required to be returned to the Borrower, each Lender will
return to the Swing Line Lender any portion thereof previously distributed by
the Swing Line Lender to it. No Swing Line Loan shall be outstanding for more
than five (5) days at a time and Swing Line Loans shall not be outstanding for
more than a total of ten (10) days during any month.
2.14. COMPETITIVE BID LOANS.
(a) COMPETITIVE BID OPTION. In addition to ratable Advances pursuant
to SECTION 2.3, but subject to the terms and conditions of this Agreement
(including, without limitation the limitation set forth in SECTION 2.1 as to the
maximum amount of all Loans not exceeding the Aggregate Commitment), the
Borrower may, as set forth in this SECTION 2.14, request the Lenders, prior to
the Facility Termination Date, to make offers to make Competitive Bid Loans to
the Borrower. Each Lender may, but shall have no obligation to, make such
offers and the Borrower may, but shall have no obligation to, accept any such
offers in the manner set forth in this SECTION 2.14. Competitive Bid Loans
shall be evidenced by the Competitive Bid Notes. In no event shall the
aggregate of all Competitive Bid Loans outstanding at any time exceed 50% of the
Aggregate Commitment.
(b) COMPETITIVE BID QUOTE REQUEST. When the Borrower wishes to
request offers to make Competitive Bid Loans under this SECTION 2.14, it shall
transmit to the Administrative Agent by telecopy a Competitive Bid Quote Request
substantially in the form of EXHIBIT C-1 hereto so as to be received no later
than (i) 10:00 a.m. (Chicago time) at least five Business Days prior to the
Borrowing Date proposed therein, in the case of a request for a Competitive
LIBOR Margin or (ii) 9:00 a.m. (Chicago time) at least one Business Day prior to
the Borrowing Date proposed therein, in the case of a request for an Absolute
Rate specifying:
(i) the proposed Borrowing Date for the proposed
Competitive Bid Loan,
(ii) the requested aggregate principal amount of such
Competitive Bid Loan which must be at least $10,000,000 and an
integral multiple of $1,000,000,
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(iii) whether the Competitive Bid Quotes requested are to set
forth a Competitive LIBOR Margin or an Absolute Rate, or both, and
(iv) the LIBOR Interest Period, if a Competitive LIBOR
Margin is requested, or the Absolute Interest Period, if an Absolute
Rate is requested.
The Borrower may request offers to make Competitive Bid Loans for more than one
(but not more than five) Interest Period in a single Competitive Bid Quote
Request. No Competitive Bid Quote Request shall be given within five Business
Days (or such other number of days as the Borrower and the Administrative Agent
may agree) of any other Competitive Bid Quote Request. A Competitive Bid Quote
Request that does not conform substantially to the form of EXHIBIT C-1 hereto
shall be rejected, and the Administrative Agent shall promptly notify the
Borrower of such rejection by telecopy.
(c) INVITATION FOR COMPETITIVE BID QUOTES. Promptly and in any event
before the close of business on the same Business Day of receipt of a
Competitive Bid Quote Request that is not rejected pursuant to SECTION 2.14(b),
the Administrative Agent shall send to each of the Lenders by telecopy an
Invitation for Competitive Bid Quotes substantially in the form of EXHIBIT C-2
hereto, which shall constitute an invitation by the Borrower to each Lender to
submit Competitive Bid Quotes offering to make the Competitive Bid Loans to
which such Competitive Bid Quote Request relates in accordance with this
SECTION 2.14.
(d) SUBMISSION AND CONTENTS OF COMPETITIVE BID QUOTES.
(i) Each Lender may, in its sole discretion, submit a
Competitive Bid Quote containing an offer or offers to make
Competitive Bid Loans in response to any Invitation for Competitive
Bid Quotes. Each Competitive Bid Quote must comply with the
requirements of this SECTION 2.14(d) and must be submitted to the
Administrative Agent by telex or telecopy at its offices not later
than (a) 2:00 p.m. (Chicago time) at least four Business Days prior to
the proposed Borrowing Date, in the case of a request for a
Competitive LIBOR Margin or (b) 9:00 a.m. (Chicago time) on the
proposed Borrowing Date, in the case of a request for an Absolute Rate
(or, in either case upon reasonable prior notice to the Lenders, such
other time and date as the Borrower and the Administrative Agent may
agree); PROVIDED that Competitive Bid Quotes submitted by First
Chicago may only be submitted if the Administrative Agent or First
Chicago notifies the Borrower of the terms of the Offer or Offers
contained therein no later than 30 minutes prior to the latest time at
which the relevant Competitive Bid Quotes must be submitted by the
other Lenders. Subject to the Borrower's compliance with all other
conditions to disbursement herein, any Competitive Bid Quote of a
Lender so made shall be irrevocable except with the written consent of
the Administrative Agent given on the instructions of the Borrower.
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(ii) Each Competitive Bid Quote shall be in substantially
the form of EXHIBIT C-3 hereto and shall in any case specify:
(1) the proposed Borrowing Date, which shall be the
same as that set forth in the applicable Invitation for
Competitive Bid Quotes,
(2) the principal amount of the Competitive Bid Loan
for which each such offer is being made, which principal amount
(x) may be greater than, less than or equal to the Commitment of
the quoting Lender, (y) must be at least $5,000,000 and an
integral multiple of $1,000,000, and (z) may not exceed the
principal amount of Competitive Bid Loans for which offers are
requested,
(3) as applicable, the Competitive LIBOR Margin and
Absolute Rate offered for each such Competitive Bid Loan,
(4) the minimum amount, if any, of the Competitive Bid
Loan which may be accepted by the Borrower, and
(5) the identity of the quoting Lender, provided that
such Competitive Bid Loan may be funded by such Lender's
Designated Lender as provided in Section 2.14(j), regardless of
whether that is specified in the Competitive Bid Quote.
(iii) The Administrative Agent shall reject any Competitive
Bid Quote that:
(1) is not substantially in the form of EXHIBIT C-3
hereto or does not specify all of the information required by
SECTION 2.14(d)(ii),
(2) contains qualifying, conditional or similar
language, other than any such language contained in EXHIBIT C-3
hereto,
(3) proposes terms other than or in addition to those
set forth in the applicable Invitation for Competitive Bid
Quotes, or
(4) arrives after the time set forth in
SECTION 2.14(d)(i).
If any Competitive Bid Quote shall be rejected pursuant to this
SECTION 2.14(d)(iii), then the Administrative Agent shall notify the
relevant Lender of such rejection as soon as practical.
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(e) NOTICE TO BORROWER. The Administrative Agent shall promptly
notify the Borrower of the terms (i) of any Competitive Bid Quote submitted by a
Lender that is in accordance with SECTION 2.14(d) and (ii) of any Competitive
Bid Quote that amends, modifies or is otherwise inconsistent with a previous
Competitive Bid Quote submitted by such Lender with respect to the same
Competitive Bid Quote Request. Any such subsequent Competitive Bid Quote shall
be disregarded by the Administrative Agent unless such subsequent Competitive
Bid Quote specifically states that it is submitted solely to correct a manifest
error in such former Competitive Bid Quote. The Administrative Agent's notice
to the Borrower shall specify the aggregate principal amount of Competitive Bid
Loans for which offers have been received for each Interest Period specified in
the related Competitive Bid Quote Request and the respective principal amounts
and Competitive LIBOR Margins or Absolute Rate, as the case may be, so offered.
(f) ACCEPTANCE AND NOTICE BY BORROWER. Not later than (i) 6:00 p.m.
(Chicago time) at least four Business Days prior to the proposed Borrowing Date
in the case of a request for a Competitive LIBOR Margin or (ii) 10:00 a.m.
(Chicago time) on the proposed Borrowing Date, in the case of a request for an
Absolute Rate (or, in either case upon reasonable prior notice to the Lenders,
such other time and date as the Borrower and the Administrative Agent may
agree), the Borrower shall notify the Administrative Agent of its acceptance or
rejection of the offers so notified to it pursuant to SECTION 2.14(e); PROVIDED,
HOWEVER, that the failure by the Borrower to give such notice to the
Administrative Agent shall be deemed to be a rejection of all such offers. In
the case of acceptance, such notice (a "COMPETITIVE BID BORROWING NOTICE") shall
specify the aggregate principal amount of offers for each Interest Period that
are accepted. The Borrower may accept any Competitive Bid Quote in whole or in
part (subject to the terms of SECTION 2.14(d)(iii)); PROVIDED that:
(i) the aggregate principal amount of all Competitive Bid
Loans to be disbursed on a given Borrowing Date may not exceed the
applicable amount set forth in the related Competitive Bid Quote
Request,
(ii) acceptance of offers may only be made on the basis of
ascending Competitive LIBOR Margins or Absolute Rates, as the case may
be, and
(iii) the Borrower may not accept any offer that is described
in SECTION 2.14(d)(iii) or that otherwise fails to comply with the
requirements of this Agreement.
(g) ALLOCATION BY ADMINISTRATIVE AGENT. If offers are made by two or
more Lenders with the same Competitive LIBOR Margins or Absolute Rates, as the
case may be, for a greater aggregate principal amount than the amount in respect
of which offers are accepted for the related Interest Period, the principal
amount of Competitive Bid Loans in respect of which such offers are accepted
shall be allocated by the Administrative Agent among such Lenders as nearly as
possible (in such multiples, not greater than $1,000,000, as
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the Administrative Agent may deem appropriate) in proportion to the aggregate
principal amount of such offers PROVIDED, however, that no Lender shall be
allocated any Competitive Bid Loan which is less than the minimum amount which
such Lender has indicated that it is willing to accept. Allocations by the
Administrative Agent of the amounts of Competitive Bid Loans shall be conclusive
in the absence of manifest error. The Administrative Agent shall promptly, but
in any event on the same Business Day, notify each Lender of its receipt of a
Competitive Bid Borrowing Notice and the principal amounts of the Competitive
Bid Loans allocated to each participating Lender.
(h) ADMINISTRATION FEE. The Borrower hereby agrees to pay to the
Administrative Agent an administration fee of $2,500 per each Competitive Bid
Quote Request transmitted by the Borrower to the Administrative Agent pursuant
to SECTION 2.14(b). Such administration fee shall be payable monthly in arrears
on the first Business Day of each month and on the Maturity Date (or such
earlier date on which the Aggregate Commitment shall terminate or be cancelled)
for any period then ending for which such fee, if any, shall not have been
theretofore paid.
(i) OTHER TERMS. Any Competitive Bid Loan shall not reduce the
Commitment of the Lender making such Competitive Bid Loan, and each such Lender
shall continue to be obligated to fund its full Percentage of all pro rata
Advances under the Facility. In no event can the aggregate amount of all
Competitive Bid Loans at any time exceed fifty percent (50%) of the then
Aggregate Commitment. Competitive Bid Loans shall not be prepaid prior to the
end of the applicable Interest Period unless the Competitive Bid Lender
consents. Competitive Bid Loans may not be continued and, if not repaid at the
end of the Interest Period applicable thereto, shall (subject to the conditions
set forth in this Agreement) be replaced by new Competitive Bid Loans made in
accordance with this SECTION 2.14 or by ratable Advances in accordance with
SECTION 2.11.
(j) DESIGNATED LENDERS. A Lender may designate its Designated Lender
to fund a Competitive Bid Loan on its behalf as described in Section
2.14(d)(ii)(5). Any Designated Lender which funds a Competitive Bid Loan shall
on and after the time of such funding become the obligee under such Competitive
Bid Loan and be entitled to receive payment thereof when due. No Lender shall
be relieved of its obligation to fund a Competitive Bid Loan, and no Designated
Lender shall assume such obligation, prior to the time such Competitive Bid Loan
is funded.
2.15. FIXED RATE LOANS. In addition to the other interest rate options
provided herein, the Borrower may request a fixed rate ("Fixed Rate") on any
ratable Advance for up to one (1) year. The Fixed Rate shall be as quoted by
the Administrative Agent, subject to the approval of all of the Lenders. If
Borrower and Lenders agree to a Fixed Rate for all or a portion of the advances
outstanding hereunder, all the provisions contained herein for LIBOR Advances
shall be applicable to such Fixed Rate Advances with the Interest Period being
the period of time agreed to by Borrower and Lenders and the LIBOR Rate being
equal to the Fixed Rate agreed to by Borrower and Lenders.
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2.16. METHOD OF PAYMENT. All payments of the Obligations hereunder
shall be made, without setoff, deduction, or counterclaim, in immediately
available funds to the Administrative Agent at the Administrative Agent's
account specified pursuant to ARTICLE XIV, or at any other Lending Installation
of the Administrative Agent specified in writing by the Administrative Agent to
the Borrower, by noon (Chicago time) on the date when due and shall be applied
ratably by the Administrative Agent among the Lenders. Each payment delivered
to the Administrative Agent for the account of any Lender shall be delivered
promptly by the Administrative Agent to such Lender in the same type of funds
that the Administrative Agent received at its account specified pursuant to
ARTICLE XIV or at any Lending Installation specified in a notice received by the
Administrative Agent from such Lender promptly. If any payment received by the
Administrative Agent is not delivered to a Lender by the closing of business on
the same Business Day as received by the Administrative Agent (with respect to
payments received by 2:00 p.m., Chicago time) or the next Business Day (with
respect to payments received after 2:00 p.m., Chicago time), Lender shall
receive from the Administrative Agent interest at the Federal Funds Effective
Rate on the payment. The Administrative Agent is hereby authorized to charge
the specific account of the Borrower, if any, maintained with First Chicago for
such purpose, for each payment of principal, interest and fees as it becomes due
hereunder. The Borrower shall not have any liability to any Lender for the
failure of the Administrative Agent to promptly deliver funds to any such Lender
and shall be deemed to have made all such payments on the date the respective
payment is made by the Borrower to the Administrative Agent provided that it is
received by the Administrative Agent no later than the time specified in this
SECTION 2.16.
2.17. NOTES; TELEPHONIC NOTICES. Each Lender is hereby authorized to
record the principal amount of each of its Loans and each repayment on the
schedule attached to its Note, provided, however, that the failure to so record
shall not affect the Borrower's obligations under such Note. Each Lender's
books and records, including without limitation, the information, if any,
recorded by the Lender on the schedule attached to its Note, shall be deemed to
be PRIMA FACIA correct absent manifest error. The Borrower hereby authorizes
the Lenders and the Administrative Agent to extend, convert or continue
Advances, effect selections of Types of Advances and to transfer funds based on
telephonic notices made by any person or persons the Administrative Agent or any
Lender in good faith believes to be an Authorized Officer. The Borrower agrees
to deliver promptly to the Administrative Agent a written confirmation signed by
an Authorized Officer of each telephonic notice, if such confirmation is
requested by the Administrative Agent or any Lender. If the written
confirmation differs in any material respect from the action taken by the
Administrative Agent and the Lenders, the records of the Administrative Agent
and the Lenders shall govern absent manifest error.
2.18. INTEREST PAYMENT DATES; INTEREST AND FEE BASIS. Interest accrued
on each Advance shall be payable on each Payment Date, commencing with the first
such date to occur after the date hereof, and at the Facility Termination Date,
whether by acceleration or otherwise. Interest accrued on each LIBOR Advance
shall also be payable on any date on which the LIBOR Advance is prepaid
(provided that nothing herein shall authorize a
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prepayment which is not otherwise permitted hereunder). Interest and Commitment
Fees shall be calculated for actual days elapsed on the basis of a 360-day year.
Interest shall be payable for the day an Advance is made but not for the day of
any payment on the amount paid if payment is received prior to noon (Chicago
time) at the place of payment, unless such Advance is repaid on the date that it
was made. If any payment of principal of or interest on an Advance shall become
due on a day which is not a Business Day, such payment shall be made on the next
succeeding Business Day and, in the case of a principal payment, such extension
of time shall be included in computing interest in connection with such payment.
2.19. NOTIFICATION OF ADVANCES, INTEREST RATES AND PREPAYMENTS.
Promptly after receipt thereof (but in no event later than noon (Chicago time)
one Business Day prior to the proposed Borrowing Date for a CBR Advance or the
close of business three Business Days prior to the proposed Borrowing Date for a
LIBOR Advance) the Administrative Agent will notify each Lender of the contents
of each Borrowing Notice, Conversion/Continuation Notice, and repayment notice
received by it hereunder. The Administrative Agent will notify each Lender and
the Borrower of the interest rate applicable to each LIBOR Advance promptly upon
determination of such interest rate and will give each Lender and the Borrower
prompt notice of each change in the Corporate Base Rate and the Applicable
Margin.
2.20. LENDING INSTALLATIONS. Each Lender may book its Loans at any
Lending Installation selected by such Lender and may change its Lending
Installation from time to time. All terms of this Agreement shall apply to any
such Lending Installation and the Notes shall be deemed held by each Lender for
the benefit of such Lending Installation. Each Lender may, by written or telex
notice to the Administrative Agent and the Borrower, designate a Lending
Installation through which Loans will be made by it and for whose account Loan
payments are to be made.
2.21. NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE AGENT. Unless the
Borrower or a Lender, as the case may be, notifies the Administrative Agent
prior to the date on which it is scheduled to make payment to the Administrative
Agent of (i) in the case of a Lender, the proceeds of a Loan or (ii) in the case
of the Borrower, a payment of principal, interest or fees to the Administrative
Agent for the account of the Lenders, that it does not intend to make such
payment, the Administrative Agent may assume that such payment has been made.
The Administrative Agent may, but shall not be obligated to, make the amount of
such payment available to the intended recipient in reliance upon such
assumption. If the Borrower has not in fact made such payment to the
Administrative Agent, the recipient of such payment shall, on demand by the
Administrative Agent, repay to the Administrative Agent the amount so made
available together with interest thereon in respect of each day during the
period commencing on the date such amount was so made available by
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the Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to the Federal Funds Effective Rate for such
day. If a Lender has not in fact made such payment to the Administrative Agent,
the Administrative Agent shall be entitled to recover such corresponding amount
on demand from such Lender together with interest thereon in respect of each day
during the period commencing on the date such amount was so made available by
the Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to the Federal Funds Effective Rate for such
date. If such Lender does not make such payment upon the Administrative Agent's
demand therefor, the Administrative Agent shall promptly notify the Borrower,
and the Borrower shall immediately pay such amount to the Administrative Agent
together with interest thereon in respect of each day during the period
commencing on the date such amount was so made available by the Administrative
Agent until the date the Administrative Agent recovers such amount at the rate
applicable to the relevant Loan. Nothing in this SECTION 2.21 shall be deemed
to relieve any Lender from its obligation to fulfill any portion of its
Commitment hereunder or to prejudice any rights which the Borrower may have
against any Lender as a result of any default by such Lender hereunder.
No Lender shall be responsible for any default by any other Lender in its
obligation to make Loans hereunder, and each Lender shall be obligated to make
the Loans provided to be made by it hereunder, regardless of the failure of any
other Lender to fulfill its Commitment hereunder.
2.22. WITHHOLDING TAX EXEMPTION. At least five Business Days prior to
the first date on which interest or fees are payable hereunder for the account
of any Lender, each Lender that is not incorporated under the laws of the United
States of America, or a state thereof, agrees that it will deliver to each of
the Borrower and the Administrative Agent two duly completed copies of United
States Internal Revenue Service Form 1001 or 4224, certifying in either case
that such Lender is entitled to receive payments under this Agreement and the
Notes without deduction or withholding of any United States federal income taxes
and an Internal Revenue Service Form W-8 or W-9 or applicable successor form, as
the case may be, to establish an exemption from United States backup withholding
tax. Each Lender which so delivers a Form 1001 or 4224 and Form W-8 or W-9
further undertakes to deliver to each of the Borrower and the Administrative
Agent two additional copies of such form (or a successor form) on or before the
date that such form expires (currently, three successive calendar years for Form
1001 and one calendar year for Form 4224) or becomes obsolete or after the
occurrence of any event requiring a change in the most recent forms so delivered
by it, and such amendments thereto or extensions or renewals thereof as may be
reasonably requested by the Borrower or the Administrative Agent, in each case
certifying that such Lender is entitled to receive payments under this Agreement
and the Notes without deduction or withholding of any United States federal
income taxes and is exempt from backup withholding, unless an event (including
without limitation any change in treaty, law or regulation) has occurred prior
to the date on which any such delivery would otherwise be required which renders
all such forms inapplicable or which would prevent such Lender from duly
completing and delivering any such form with respect to it and such Lender
advises the Borrower and the Administrative Agent that it is not capable of
receiving payments without any deduction or withholding of United States federal
income tax or is not exempt from backup withholding tax.
2.23. VOLUNTARY REDUCTION OF AGGREGATE COMMITMENT AMOUNT. Upon at
least five (5) Business Days' prior irrevocable written notice (or telephonic
notice promptly confirmed in
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writing) to the Administrative Agent, Borrower shall have the right, without
premium or penalty, to permanently reduce the Aggregate Commitment provided that
(a) Borrower may not reduce the Aggregate Commitment below the Allocated
Facility Amount at the time of such requested reduction, (b) any such partial
reduction shall be in the minimum aggregate amount of Five Million Dollars (U.S.
$5,000,000.00) or any integral multiple of Five Million Dollars (U.S.
$5,000,000.00) in excess thereof and (c) Borrower may not reduce the Aggregate
Commitment to an amount less than Fifty Million Dollars (U.S. $50,000,000.00).
Any reduction of the Aggregate Commitment shall be applied pro rata to each
Lender's Commitment.
2.24. USURY. This Agreement and the Note are subject to the express
condition that at no time shall Borrower be obligated or required to pay
interest on the principal balance of the Loan at a rate which could subject any
Lender (including the Swing Line Lender) to either civil or criminal liability
as a result of being in excess of the Maximum Legal Rate. If by the terms of
this Agreement or the Loan Documents, Borrower is at any time required or
obligated to pay interest on the principal balance due hereunder at a rate in
excess of the Maximum Legal Rate, the interest rate or the Default Rate, as the
case may be, shall be deemed to be immediately reduced to the Maximum Legal Rate
and all previous payments in excess of the Maximum Legal Rate shall be deemed to
have been payments in reduction of principal and not on account of the interest
due hereunder. All sums paid or agreed to be paid to Lender for the use,
forbearance, or detention of the sums due under the Loan, shall, to the extent
permitted by applicable law, be amortized, prorated, allocated, and spread
throughout the full stated term of the Loan until payment in full so that the
rate or amount of interest on account of the Loan does not exceed the Maximum
Legal Rate of interest from time to time in effect and applicable to the Loan
for so long as the Loan is outstanding.
2.25. APPLICATION OF MONEYS RECEIVED. All moneys collected or received
by the Administrative Agent on account of the Facility directly or indirectly,
shall be applied in the following order of priority:
(i) to the payment of all reasonable costs incurred in the collection
of such moneys of which the Administrative Agent shall have given
notice to the Borrower;
(ii) to the reimbursement of any yield protection due to the Lenders
in accordance with SECTION 4.1;
(iii) to the payment of any fee due pursuant to SECTION 3.8(b) in
connection with the issuance of a Facility Letter of Credit to
the Issuing Bank, to the payment of the Facility Fee to the
Lenders, if then due, in accordance with their Percentages and to
the payment of the Administrative Agent's Fee to the
Administrative Agent if then due;
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(iv) (a) in case the entire unpaid principal of the Facility shall not
have become due and payable, the whole amount received as
interest and Facility Letter of Credit Fee then due to the
Lenders (other than a Defaulting Lender) as their respective
Percentages appear (except to the extent there are Swing Line
Loans or Competitive Bid Loans outstanding in which event the
full amount of interest attributable to the Swing Line Loans and
Competitive Bid Loans shall be payable to the Swing Line Lender
and Competitive Bid Lenders, respectively, unless the Swing Line
Lender or Competitive Bid Lender shall be a Defaulting Lender),
together with the whole amount, if any, received as principal
first to the Swing Line Lender, unless the Swing Line Lender
shall be a Defaulting Lender, to repay any outstanding Swing Line
Loans and then to the Lenders as their respective Funded
Percentages appear, or (b) in case the entire unpaid principal of
the Facility shall have become due and payable, as a result of a
Default or otherwise, to the payment of the whole amount then due
and payable on the Loan for principal, together with interest
thereon at the Default Rate or the interest rate, as applicable,
to the Swing Line Lender, unless the Swing Line Lender shall be a
Defaulting Lender, for all such amounts due in connection with
Swing Line Loans and then to the Lenders (other than a Defaulting
Lender) as their respective Funded Percentages appear until paid
in full; and then to the Letter of Credit Collateral Account
until the full amount of Facility Letter of Credit Obligations is
on deposit therein; and
(v) to the payment of any sums due to each Defaulting Lender as their
respective Percentages appear (provided that Administrative Agent
shall have the right to set-off against such sums any amounts due
from such Defaulting Lender).
ARTICLE III
THE LETTER OF CREDIT SUBFACILITY
3.1. OBLIGATION TO ISSUE. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of the
Borrower herein set forth, the Issuing Bank hereby agrees to issue for the
account of Borrower, one or more Facility Letters of Credit in accordance with
this ARTICLE III, from time to time during the period ending on the Business Day
prior to the Facility Termination Date.
3.2. TYPES AND AMOUNTS. The Issuing Bank shall not except with the prior
written consent of all Lenders:
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(i) issue any Facility Letter of Credit if the aggregate maximum
amount then available for drawing under Letters of Credit issued by such
Issuing Bank, after giving effect to the Facility Letter of Credit
requested hereunder, shall exceed any limit imposed by law or regulation
upon such Issuing Bank provided, in such event, the Borrower shall have the
right to select (with the approval of the alternate Issuing Bank but not
the other Lenders) an alternate Issuing Bank which shall be one of the
Lenders;
(ii) issue any Facility Letter of Credit if, after giving effect
thereto, the aggregate Facility Letter of Credit Obligations would exceed
$10,000,000 or the Allocated Facility Amount would exceed the Aggregate
Commitment;
(iii) issue any Facility Letter of Credit having an expiration date, or
containing automatic extension provisions to extend such date, to a date
which is after the Business Day immediately preceding the Facility
Termination Date; or
(iv) issue any Facility Letter of Credit having an expiration date
which is more than fifteen (15) months after the date of its issuance.
3.3. CONDITIONS. In addition to being subject to the satisfaction of the
conditions contained in SECTION 5.2 hereof, the obligation of the Issuing Bank
to issue any Facility Letter of Credit is subject to the satisfaction in full of
the following conditions:
(i) the Borrower shall have delivered to the Issuing Bank at such
times and in such manner as the Issuing Bank may reasonably prescribe such
documents and materials as may be reasonably required pursuant to the terms
of the proposed Facility Letter of Credit (it being understood that if any
inconsistency exists between such documents and the Loan Documents, the
terms of the Loan Documents shall control) and the proposed Facility Letter
of Credit shall be reasonably satisfactory to the Issuing Bank as to form
and content;
(ii) as of the date of issuance, no order, judgment or decree of any
court, arbitrator or governmental authority shall purport by its terms to
enjoin or restrain the Issuing Bank from issuing the requested Facility
Letter of Credit and no law, rule or regulation applicable to the Issuing
Bank and no request or directive (whether or not having the force of law)
from any governmental authority with jurisdiction over the Issuing Bank
shall prohibit or request that the Issuing Bank refrain from the issuance
of Letters of Credit generally or the issuance of the requested Facility
Letter or Credit in particular, provided, in such event, the Borrower shall
have the right to select an alternate Issuing Bank which shall be one of
the Lenders; and
(iii) there shall not exist any Default or Unmatured Default.
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3.4. PROCEDURE FOR ISSUANCE OF FACILITY LETTERS OF CREDIT.
(a) Borrower shall give the Issuing Bank and the Administrative Agent
at least five (5) Business Days' prior written notice of any requested issuance
of a Facility Letter of Credit under this Agreement (a "LETTER OF CREDIT
REQUEST") (except that, in lieu of such written notice, the Borrower may give
the Issuing Bank and the Administrative Agent telephonic notice of such request
if confirmed in writing by delivery to the Issuing Bank and the Administrative
Agent (i) by the close of business on such day (A) of a telecopy of the written
notice required hereunder which has been signed by an Authorized Officer, or (B)
of a telex containing all information required to be contained in such written
notice and (ii) promptly (but in no event later than the requested date of
issuance) of the written notice required hereunder containing the original
signature of an Authorized Officer); such notice shall specify:
(1) the stated amount of the Facility Letter of Credit requested
(which stated amount shall not be less than $50,000);
(2) the effective date (which day shall be a Business Day) of
issuance of such requested Facility Letter of Credit (the
"ISSUANCE DATE");
(3) the date on which such requested Facility Letter of Credit is to
expire which date (exclusive of automatic extension periods so
long as the Facility Letter of Credit gives the Issuing Bank the
right to issue a notice that the expiration date will not be
extended) shall be a Business Day and shall in no event be later
than the earlier of fifteen months after the Issuance Date and
the Business Day immediately preceding the Facility Termination
Date;
(4) the purpose for which such Facility Letter of Credit is to be
issued (such purpose shall comply with the requirements of
SECTION 7.2);
(5) the Person for whose benefit the requested Facility Letter of
Credit is to be issued; and
(6) any special language required to be included in the Facility
Letter of Credit.
At the time such request is made, the Borrower shall also provide the
Administrative Agent and the Issuing Bank with a copy of the form of the
Facility Letter of Credit that the Borrower is requesting be issued, which shall
be subject to the reasonable approval of the Issuing Bank and Administrative
Agent. Such notice, to be effective, must be received by such Issuing Bank and
the Administrative Agent not later than 2:00 p.m. (Chicago time) on the last
Business Day on which notice can be given under this SECTION 3.4(a).
Administrative Agent shall promptly but in no event later than three (3)
Business Days prior to the Issuance Date
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give a copy of the Letter of Credit Request to the other Lenders. Borrower
shall also deliver the compliance certificate required in SECTION 5.2 together
with each Letter of Credit Request.
(b) Subject to the terms and conditions of this ARTICLE III and
provided that the applicable conditions set forth in SECTION 5.2 hereof have
been satisfied, such Issuing Bank shall, on the Issuance Date, issue a Facility
Letter of Credit on behalf of the Borrower in accordance with the Letter of
Credit Request and the Issuing Bank's usual and customary business practices
unless the Issuing Bank has actually received (i) written notice from the
Borrower specifically revoking the Letter of Credit Request with respect to such
Facility Letter of Credit, or (ii) written or telephonic notice from the
Administrative Agent stating that the issuance of such Facility Letter of Credit
would violate SECTION 3.2.
(c) The Issuing Bank shall give the Administrative Agent and the
Borrower written or telex notice, or telephonic notice confirmed promptly
thereafter in writing, of the issuance of a Facility Letter of Credit (the
"ISSUANCE NOTICE") and Administrative Agent shall promptly give a copy of the
Issuance Notice to the other Lenders.
(d) The Issuing Bank shall not extend or amend any Facility Letter of
Credit (other than an automatic extension) unless the requirements of this
SECTION 3.4 are met as though a new Facility Letter of Credit was being
requested and issued.
3.5. REIMBURSEMENT OBLIGATIONS; DUTIES OF ISSUING BANK.
(a) The Issuing Bank shall promptly notify the Borrower and the
Administrative Agent of any draw under a Facility Letter of Credit, and the
Administrative Agent shall promptly notify the other Lenders that such draw has
occurred. Any such draw shall constitute an Advance of the Facility in the
amount of the Reimbursement Obligation with respect to such Facility Letter of
Credit and shall bear interest from the date of the relevant drawing(s) under
the pertinent Facility Letter of Credit at a rate selected by Borrower in
accordance with SECTION 2.10 hereof; provided that if any Default or an
Unmatured Default involving the payment of money exists at the time of any such
drawing(s), then the Borrower shall reimburse the Issuing Bank for drawings
under a Facility Letter of Credit issued by the Issuing Bank no later than the
next succeeding Business Day after the payment by the Issuing Bank and until
repaid such Reimbursement Obligation shall bear interest from the date funded at
the Default Rate.
(b) Any action taken or omitted to be taken by the Issuing Bank under
or in connection with any Facility Letter of Credit, if taken or omitted in the
absence of willful misconduct or gross negligence, shall not put the Issuing
Bank under any resulting liability to Borrower or any Lender or, provided that
such Issuing Bank has complied with the procedures specified in SECTION 3.4,
relieve a Lender of its obligations hereunder to the Issuing Bank. In
determining whether to pay under any Facility Letter of Credit, the Issuing Bank
shall have no obligation relative to the Lenders other than to confirm that any
documents required to be
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delivered under such Letter of Credit appear to have been delivered in
compliance, and that they appear to comply on their face, with the requirements
of such Letter of Credit.
3.6. PARTICIPATION.
(a) Immediately upon issuance by the Issuing Bank of any Facility
Letter of Credit in accordance with the procedures set forth in SECTION 3.4,
each Lender shall be deemed to have irrevocably and unconditionally purchased
and received from the Issuing Bank, without recourse, representation or
warranty, an undivided interest and participation equal to such Lender's
Percentage in such Facility Letter of Credit (including, without limitation, all
obligations of the Borrower with respect thereto) and any security therefor or
guaranty pertaining thereto. Each Lender's obligation to make further Loans to
the Borrower (other than any payments such Lender is required to make under
subparagraph (b) below) or issue any letters of credit on behalf of Borrower
shall be reduced by such Lender's Percentage of the undrawn portion of each
Facility Letter of Credit outstanding.
(b) In the event that the Issuing Bank makes any payment under any
Facility Letter of Credit and the Borrower shall not have repaid such amount to
the Issuing Bank pursuant to SECTION 3.7 hereof, the Issuing Bank shall promptly
notify the Administrative Agent, which shall promptly notify each Lender of the
same, and each Lender shall promptly and unconditionally pay to the
Administrative Agent for the account of the Issuing Bank the amount of such
Lender's Percentage of the unreimbursed amount of such payment, and the
Administrative Agent shall promptly pay such amount to the Issuing Bank.
Notwithstanding the foregoing, unless Borrower shall notify Administrative Agent
of Borrower's intent to repay the Reimbursement Obligation on the date of the
related drawing under any Facility Letter of Credit, such Reimbursement
Obligation shall simultaneously with such drawing be converted to and become a
CBR Loan as set forth in SECTION 2.10. The failure of any Lender to make
available to the Administrative Agent for the account of any Issuing Bank its
Percentage of the unreimbursed amount of any such payment shall not relieve any
other Lender of its obligation hereunder to make available to the Administrative
Agent for the account of such Issuing Bank its Percentage of the unreimbursed
amount of any payment on the date such payment is to be made, but no Lender
shall be responsible for the failure of any other Lender to make available to
the Administrative Agent its Percentage of the unreimbursed amount of any
payment on the date such payment is to be made. Any Lender which fails to make
any payment required pursuant to this SECTION 3.6(b) shall be deemed to be a
Defaulting Lender hereunder.
(c) If the Issuing Bank receives a payment on account of a
Reimbursement Obligation, including any interest thereon, the Issuing Bank shall
promptly pay to the Administrative Agent and the Administrative Agent shall
promptly pay to each Lender which has funded its participating interest therein,
in immediately available funds, an amount equal to such Lender's Percentage
thereof.
(d) Upon the request of the Administrative Agent or any Lender, an
Issuing Bank shall furnish to such Administrative Agent or Lender copies of any
Facility Letter of
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Credit to which that Issuing Bank is party and such other documentation as may
reasonably be requested by the Administrative Agent or Lender.
(e) The obligations of a Lender to make payments to the
Administrative Agent for the account of each Issuing Bank with respect to a
Facility Letter of Credit shall be absolute, unconditional and irrevocable, not
subject to any counterclaim, set-off, qualification or exception whatsoever
other than a failure of any such Issuing Bank to comply with the terms of this
Agreement relating to the issuance of such Facility Letter of Credit and shall
be made in accordance with the terms and conditions of this Agreement under all
circumstances.
3.7. PAYMENT OF REIMBURSEMENT OBLIGATIONS.
(a) The Borrower agrees to pay to the Administrative Agent for the
account of each Issuing Bank the amount of all Advances for Reimbursement
Obligations, interest and other amounts payable to such Issuing Bank under or in
connection with any Facility Letter of Credit when due irrespective of any
claim, set-off, defense or other right which the Borrower may have at any time
against any Issuing Bank or any other Person, under all circumstances, including
without limitation any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or
any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other right
which the Borrower may have at any time against a beneficiary named in
a Facility Letter of Credit or any transferee of any Facility Letter
of Credit (or any Person for whom any such transferee may be acting),
the Administrative Agent, the Issuing Bank, any Lender, or any other
Person, whether in connection with this Agreement, any Facility Letter
of Credit, the transactions contemplated herein or any unrelated
transactions (including any underlying transactions between the
Borrower and the beneficiary named in any Facility Letter of Credit);
(iii) any draft, certificate or any other document presented under
the Facility Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect of any statement therein being
untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Loan
Documents; or
(v) the occurrence of any Default or Unmatured Default.
(b) In the event any payment by the Borrower received by the Issuing
Bank or the Administrative Agent with respect to a Facility Letter of Credit and
distributed by the Administrative Agent to the Lenders on account of their
participations is thereafter set aside,
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avoided or recovered from the Administrative Agent or the Issuing Bank in
connection with any receivership, liquidation, reorganization or bankruptcy
proceeding, each Lender which received such distribution shall, upon demand by
the Administrative Agent, contribute such Lender's Percentage of the amount set
aside, avoided or recovered together with interest at the rate required to be
paid by the Issuing Bank or the Administrative Agent upon the amount required to
be repaid by the Issuing Bank or the Administrative Agent.
3.8. COMPENSATION FOR FACILITY LETTERS OF CREDIT.
(a) The Borrower shall pay to the Administrative Agent, for the
ratable account of the Lenders, based upon the Lenders' respective Percentages,
a per annum fee (the "FACILITY LETTER OF CREDIT FEE") with respect to each
Facility Letter of Credit that is equal to the LIBOR Applicable Margin in effect
from time to time. The Facility Letter of Credit Fee relating to any Facility
Letter of Credit shall be due and payable in arrears in equal installments on
the first Business Day of each month following the issuance of any Facility
Letter of Credit and, to the extent any such fees are then due and unpaid, on
the Facility Termination Date. The Administrative Agent shall promptly remit
such Facility Letter of Credit Fees, when paid, to the other Lenders in
accordance with their Percentages thereof. The Borrower shall not have any
liability to any Lender for the failure of the Administrative Agent to promptly
deliver funds to any such Lender and shall be deemed to have made all such
payments on the date the respective payment is made by the Borrower to the
Administrative Agent, provided such payment is received by the time specified in
SECTION 2.15 hereof.
(b) The Issuing Bank also shall have the right to receive solely for
its own account an issuance fee of 0.15% of the face amount of each Facility
Letter of Credit, payable by the Borrower on the Issuance Date for each such
Facility Letter of Credit. The Issuing Bank shall also be entitled to receive
its reasonable out-of-pocket costs and the Issuing Bank's standard charges of
issuing, amending and servicing Facility Letters of Credit and processing draws
thereunder.
3.9. LETTER OF CREDIT COLLATERAL ACCOUNT. The Borrower hereby agrees that
it will, if required pursuant to SECTION 9.1, maintain a special collateral
account (the "LETTER OF CREDIT COLLATERAL ACCOUNT") at the Administrative
Agent's office at the address specified pursuant to SECTION 14.1, in the name of
the Borrower but under the sole dominion and control of the Administrative
Agent, for the benefit of the Lenders, and in which the Borrower shall have no
interest other than as set forth in SECTION 9.1. Such Letter of Credit
Collateral Account shall be funded to the extent required by SECTION 9.1. In
addition to the foregoing, the Borrower hereby grants to the Administrative
Agent, for the benefit of the Lenders, a properly perfected security interest in
and to the Letter of Credit Collateral Account, any funds that may hereafter be
on deposit in such account and the proceeds thereof.
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ARTICLE IV
CHANGE IN CIRCUMSTANCES
4.1. YIELD PROTECTION. If, after the date hereof, any law or any
governmental or quasi-governmental rule, regulation, policy, guideline or
directive (whether or not having the force of law), or any interpretation
thereof, or the compliance of any Lender therewith,
(i) subjects any Lender or any applicable Lending Installation to
any tax, duty, charge or withholding on or from payments due
from the Borrower (excluding federal, state and local income,
franchise or similar taxes on the overall income of any Lender
or applicable Lending Installation), or changes the basis of
taxation of payments to any Lender in respect of its Loans,
Facility Letters of Credit or other amounts due it hereunder,
or
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar
requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender or any
applicable Lending Installation (other than reserves and
assessments taken into account in determining the interest
rate applicable to LIBOR Advances), or
(iii) imposes any other condition the result of which is to increase
the cost to any Lender or any applicable Lending Installation
of making, funding or maintaining loans or reduces any amount
receivable by any Lender or any applicable Lending
Installation in connection with loans, or requires any Lender
or any applicable Lending Installation to make any payment
calculated by reference to the amount of loans held, Letters
of Credit issued or participated in, or interest received by
it, by an amount deemed material by such Lender, then, within
15 days of written demand by such Lender pursuant to
SECTION 4.5,
(iv) the Borrower shall pay such Lender that portion of such
increased expense incurred or reduction in an amount received
which such Lender determines is attributable to making,
funding and maintaining its Loans and its Commitment.
4.2. CHANGES IN CAPITAL ADEQUACY REGULATIONS. If a Lender reasonably
determines the amount of capital required or expected to be maintained by such
Lender, any Lending Installation of such Lender or any corporation controlling
such Lender is increased as a result of a Change (as hereinafter defined), then,
within fifteen days of written demand by such Lender pursuant to SECTION 4.5,
the Borrower shall pay such Lender the amount necessary to compensate for any
shortfall in the rate of return on the portion on such increased capital
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which such Lender determines is attributable to this Agreement, its Loans, its
interest in the Facility Letters of Credit, or its obligation to make Loans
hereunder or participate in or issue Facility Letters of Credit (after taking
into account such Lender's policies as to capital adequacy). "CHANGE" means (i)
any change after the date of this Agreement in the Risk-Based Capital Guidelines
or (ii) any adoption of or change in any other law, rule, regulation, policy,
guideline, interpretation, or directive of any Governmental Authority having
jurisdiction after the date of this Agreement which affects the amount of
capital required or reasonably expected to be maintained by any Lender or any
Lending Installation or any corporation controlling any Lender. "RISK-BASED
CAPITAL GUIDELINES" means (i) the risk-based capital guidelines in effect in the
United States on the date of this Agreement, including transition rules, and
(ii) the corresponding capital regulations promulgated by regulatory authorities
outside the United States implementing the July 1988 report of the Basle
Committee on Banking Regulation and Supervisory Practices Entitled
"INTERNATIONAL CONVERGENCE OF CAPITAL MEASUREMENTS AND CAPITAL STANDARDS,"
including transition rules, and any amendments to such regulations adopted prior
to the date of this Agreement.
4.3. AVAILABILITY OF LIBOR ADVANCES. If any Lender determines that
maintenance of any of its LIBOR Loans at a suitable Lending Installation would
violate any applicable law, rule, regulation or directive of any Governmental
Authority having jurisdiction, the Administrative Agent shall suspend by written
notice to Borrower the availability of LIBOR Advances and require any LIBOR
Advances to be repaid; or if the Required Lenders determine that (i) deposits of
a type or maturity appropriate to match fund LIBOR Advances are not available,
the Administrative Agent shall suspend by written notice to Borrower the
availability of LIBOR Advances with respect to any LIBOR Advances made after the
date of any such determination, or (ii) an interest rate applicable to a LIBOR
Advance does not accurately reflect the cost of making a LIBOR Advance, and, if
for any reason whatsoever the provisions of SECTION 4.1 are inapplicable, the
Administrative Agent shall suspend by written notice to Borrower the
availability of LIBOR Advances with respect to any LIBOR Advances made after the
date of any such determination.
4.4. FUNDING INDEMNIFICATION. If any payment of a LIBOR Advance occurs
on a date which is not the last day of the applicable Interest Period, whether
because of acceleration, prepayment or otherwise, or a LIBOR Advance is not made
on the date specified by the Borrower for any reason the Borrower will indemnify
each Lender (other than any Lender whose default was the reason that the LIBOR
Advance was not made on the date specified), for any loss or cost incurred by it
resulting therefrom, including,without limitation, any loss or cost in
liquidating or employing deposits acquired to fund or maintain the LIBOR Advance
upon Borrower's receipt of the written notice pursuant to SECTION 4.5.
4.5. LENDER STATEMENTS; SURVIVAL OF INDEMNITY. To the extent reasonably
possible, each Lender shall designate an alternate Lending Installation with
respect to its LIBOR Loans and shall take other measures in its discretion to
reduce any liability of the Borrower to such Lender under SECTIONS 4.1 and 4.2
or to avoid the unavailability of a Type of a LIBOR Advance under SECTION 4.3,
so long as such designation or other measure is not
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disadvantageous to such Lender. Each Lender shall deliver a written statement
of such Lender to the Administrative Agent and to the Borrower as to the amount
due, if any, under SECTIONS 4.1, 4.2 or 4.4. Such written statement shall set
forth in reasonable detail the calculations upon which such Lender determined
such amount and shall be final, conclusive and binding on the Borrower in the
absence of manifest error. Determination of amounts payable under such Sections
in connection with a LIBOR Loan shall be calculated as though each Lender funded
its LIBOR Loan through the purchase of a deposit of the type and maturity
corresponding to the deposit used as a reference in determining the LIBOR Rate
applicable to such Loan, whether in fact that is the case or not. Unless
otherwise provided herein, the amount specified in the written statement shall
be payable on demand after receipt by the Borrower of the written statement.
The obligations of the Borrower under SECTIONS 4.1, 4.2 and 4.4 shall survive
payment of the Obligations and termination of this Agreement for a period of one
year.
4.6. LIMITATION ON BORROWER'S LIABILITY. The Borrower shall not be
obligated to compensate any Lender pursuant to SECTION 4.1, 4.2 or 4.4 for any
amounts attributable to a period more than one year prior to such Lender's
written notice under SECTION 4.5 of its intention to seek compensation under
SECTION 4.1, 4.2 or 4.4.
ARTICLE V
CONDITIONS PRECEDENT
5.1. INITIAL ADVANCE. The Lenders shall not be required to make the
initial Advance hereunder unless (a) the Borrower shall have paid all fees then
due and payable to the Lenders, the Documentation Agent, and the Administrative
Agent hereunder, and (b) the Borrower shall have furnished to the Administrative
Agent, in form and substance satisfactory to the Lenders and their counsel and
with sufficient copies for the Lenders, the following:
(i) The duly executed originals of the Loan Documents, including
the Notes, payable to the order of each of the Lenders, and
this Agreement;
(ii) Certified copies of the articles of incorporation, limited
partnership certificate, limited liability company agreement,
declaration of trust or other organizational document of the
Borrower, each Subsidiary and each Qualifying Investment
Affiliate, to the extent applicable, with all amendments and
certified by the appropriate governmental officer of the state
of organization as of a recent date;
(iii) Certificates of good standing for the Borrower, each
Subsidiary and each Qualifying Investment Affiliate certified
by the appropriate governmental officer of the state of
organization, and foreign qualification certificates
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for the Borrower, certified by the appropriate governmental
officer, for each jurisdiction where an Unencumbered Asset is
located and each other jurisdiction where the failure to so
qualify or be licensed (if required) would have a Material
Adverse Effect;
(iv) Copies, certified by an officer of the Borrower, each
Subsidiary and each Qualifying Investment Affiliate of its
by-laws, partnership agreement, operating agreement or similar
document, to the extent applicable together with all
amendments thereto;
(v) An incumbency certificate, executed by an officer of the
Borrower, which shall identify by name and title and bear the
signature of the Persons authorized to sign the Loan Documents
and to make borrowings hereunder on behalf of the Borrower,
upon which certificate the Administrative Agent and the
Lenders shall be entitled to rely until informed of any change
in writing by the Borrower;
(vi) Copies, certified by the Secretary or Assistant Secretary, of
the Borrower's Board of Directors' resolutions (and
resolutions of other bodies, if any are deemed necessary by
counsel for any Lender) authorizing the Advances provided for
herein and the execution, delivery and performance of the Loan
Documents to be executed and delivered by the Borrower
hereunder;
(vii) A written opinion of the Borrower's counsel, addressed to the
Lenders in substantially the form of EXHIBIT D hereto;
(viii) A certificate, signed by an officer of the Borrower, stating
that on the Closing Date and on the initial Borrowing Date no
Default or Unmatured Default has occurred and is continuing
and that all representations and warranties of the Borrower
contained herein are true and correct as of the Closing Date
and initial Borrowing Date as and to the extent set forth
herein;
(ix) The most recent financial statements of the Borrower and a
certificate from an Authorized Officer of the Borrower that no
change in the Borrower's financial condition that would have a
Material Adverse Effect has occurred since December 31, 1996;
(x) UCC financing statement, judgment, and tax lien searches with
respect to the Borrower, any Subsidiary or Qualifying
Investment Affiliate from the States of Maryland and Illinois
and the counties in which Borrower, any Subsidiary or any
Qualifying Investment Affiliate owns properties;
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(xi) Evidence of sufficient Unencumbered Assets (which evidence may
include pay-off letters (together with evidence of payment or
a direction of Borrower to use a portion of the proceeds of
the Advances to repay such Indebtedness), mortgage releases
and/or title policies) to assist the Administrative Agent in
determining the Borrower's compliance with the covenants set
forth in ARTICLE VII herein;
(xii) Written money transfer instructions, in substantially the form
of EXHIBIT G hereto, addressed to the Administrative Agent and
signed by an Authorized Officer, together with such other
related money transfer authorizations as the Administrative
Agent may have reasonably requested;
(xiii) Evidence that all parties whose consent is required for
Borrower to execute the Loan Documents have provided such
consents;
(xiv) Operating statements for each Property and other evidence of
income and expenses to assist the Administrative Agent in
determining Borrower's compliance with the covenants set forth
in Article VII herein;
(xv) A copy of the standard lease form generally used at the
Properties;
(xvi) Evidence that the insurance coverage required in SECTION 6.17
is in full force and effect; and
(xvii) Such other documents as any Lender or its counsel may have
reasonably requested, the form and substance of which
documents shall be acceptable to the parties and their
respective counsel.
5.2. CONDITIONS TO EACH ADVANCE, ISSUANCE OF FACILITY LETTER OF CREDIT
AND CONTINUATION/CONVERSION. The following conditions must be satisfied as a
condition precedent to the making of an Advance (including Swing Line Loans),
the issuance of a Facility Letter of Credit, or the continuation of a LIBOR
Advance or conversion of an existing Advance into a LIBOR Advance:
(i) There exists no Default or Unmatured Default;
(ii) The representations and warranties contained in ARTICLE VI are
true and correct as of such Borrowing Date, Issuance Date, or
date of conversion and/or continuation as and to the extent
set forth therein, except to the extent any such
representation or warranty is stated to relate solely to an
earlier date, in which case such representation or warranty
shall be true and correct on and as of such earlier date and
except for Property Breaches, in which case the compliance
certificate shall contain a
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calculation of the financial covenants with and without
including the Property with respect to which there is a
Property Breach and demonstrate compliance with such covenants
both with and without inclusion of such Property; and
(iii) All legal matters incident to the making of such Advance shall
be reasonably satisfactory to the Lenders and their counsel.
Each Borrowing Notice, Letter of Credit Request, and
Conversion/Continuation Notice shall constitute a representation and warranty by
the Borrower that the conditions contained in SECTIONS 5.2(i) and (ii) have been
satisfied. Borrower shall also furnish a duly completed compliance certificate
in substantially the form of EXHIBIT E hereto (including all schedules or
exhibits if applicable) as a condition to making an Advance or issuing a
Facility Letter of Credit; provided that although the covenants in SECTION 7.21
must be satisfied at all times (and any deviations therefrom noted on the
compliance certificate) the detailed calculations contained in Schedule I of the
compliance certificate shall be based on the most recent quarterly information
available.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that as of the date
hereof, and as of each Borrowing Date, Issuance Date and each conversion and/or
continuation (except as otherwise disclosed to and approved by the Required
Lenders):
6.1. EXISTENCE. It is duly organized, validly existing and in good
standing under the laws of the State of Maryland, with its principal place of
business in Chicago, Illinois, and is duly qualified as a foreign trust,
properly licensed (if required), in good standing and has all requisite
authority to conduct its business in each jurisdiction in which the laws of such
jurisdiction requires it to be so qualified, except where the failure to be so
qualified or to obtain such authority would not have a Material Adverse Effect.
Each of its Subsidiaries and Investment Affiliates is duly organized, validly
existing and in good standing under the laws of its jurisdiction of organization
and has all requisite authority to conduct its business in each jurisdiction in
which it owns Property, and except where the failure to be so qualified or to
obtain such authority would not have a Material Adverse Effect, in each other
jurisdiction in which it conducts business.
6.2. AUTHORIZATION AND VALIDITY. It has the power and authority and
legal right to execute and deliver the Loan Documents and to perform its
obligations thereunder. The execution and delivery by it of the Loan Documents
and the performance of its obligations thereunder have been duly authorized by
proper proceedings, and the Loan Documents
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constitute legal, valid and binding obligations of the Borrower enforceable
against it in accordance with their terms, except as enforceability may be
limited by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law).
6.3. NO CONFLICT; GOVERNMENT CONSENT. Neither the execution and
delivery by it of the Loan Documents, nor the consummation of the transactions
therein contemplated, nor compliance with the provisions thereof will violate in
any material respect any law, rule, regulation, order, writ, judgment,
injunction, decree or award binding on, respectively, the Borrower or any of its
Subsidiaries or Qualifying Investment Affiliates or any of such entities'
articles of incorporation, by-laws, certificate of limited partnership,
partnership agreement or operating agreement, as the case may be, or the
provisions of any indenture, declaration of trust, instrument or agreement to
which any entity is a party or is subject, or by which it, or its Property, is
bound, or conflict with or constitute a default thereunder, or result in the
creation or imposition of any Lien in, of or on the Property of such entity
pursuant to the terms of any such indenture, instrument or agreement. No order,
consent, approval, license, authorization, or validation of, or filing,
recording or registration with, or exemption by, any governmental or public body
or authority, or any subdivision thereof, is required to authorize, or is
required in connection with the execution, delivery and performance of, or the
legality, validity, binding effect or enforceability of, any of the Loan
Documents.
6.4. FINANCIAL STATEMENTS; MATERIAL ADVERSE CHANGE. The most recent
consolidated financial statements of the Borrower and its Subsidiaries delivered
to the Lenders prior to the date that this representation is made were prepared
in accordance with GAAP in effect on the date such statements were prepared and
fairly present the consolidated financial condition and operations of the
Borrower and its Subsidiaries at such date and the consolidated results of their
operations for the period then ended. Since the date of such financial
statements, there has been no change in the business, Property, results of
operations or financial condition of the Borrower and its Subsidiaries which
have or could be reasonably expected to have a Material Adverse Effect.
6.5. TAXES. It, its Subsidiaries, and its Qualifying Investment
Affiliates, have filed all United States federal tax returns and all other tax
returns which are required to be filed and have paid all taxes due pursuant to
said returns or pursuant to any assessment received by, respectively, the
Borrower or any of its Subsidiaries except such taxes, if any, as are being
contested in good faith and as to which adequate reserves have been provided.
No tax liens have been filed and no claims are being asserted with respect to
any such taxes. The charges, accruals and reserves on the books of the Borrower
and its Subsidiaries and to Borrower's knowledge, its Qualifying Investment
Affiliates in respect of any taxes or other governmental charges are adequate.
6.6. LITIGATION AND CONTINGENT OBLIGATIONS. Except as set forth on
Schedule 7, there is no litigation, arbitration, governmental investigation or
proceeding pending or, to the
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knowledge of any of its officers, threatened in a writing received by Borrower,
a Subsidiary, or a Qualifying Investment Affiliate, against or affecting the
Borrower or any of its Subsidiaries or Investment Affiliates which, if adversely
determined, would have a Material Adverse Effect. Except as disclosed on
Schedule 8, it has no material contingent obligations not provided for or
disclosed in the financial statements referred to in SECTION 7.1, which would
have or could be reasonably expected to have a Material Adverse Effect.
6.7. SUBSIDIARIES. SCHEDULE 1 hereto contains an accurate list of all
of the presently existing Subsidiaries and Investment Affiliates of Borrower,
setting forth their respective jurisdictions of formation, the percentage of
their respective Capital Stock owned by it or its Subsidiaries, Properties owned
and a description or its business and with respect to Investment Affiliates,
whether such Investment Affiliate constitutes a Qualifying Investment Affiliate.
All of the issued and outstanding shares of Capital Stock of such Subsidiaries
and, to Borrower's knowledge, such Investment Affiliates have been duly
authorized and issued and are fully paid and non-assessable.
6.8. ERISA. The Unfunded Liabilities of all Single Employer Plans do
not in the aggregate exceed $1,000,000. Neither the Borrower nor any other
member of the Controlled Group has incurred any withdrawal liability to
Multiemployer Plans in excess of $250,000 in the aggregate. If withdrawals from
all Multiemployer Plans occurred, the liability would not exceed $250,000. Each
Plan and, to Borrower's knowledge, each Multiemployer Plan, complies in all
material respects with all applicable requirements of law and regulations and
Borrower and all members of the Controlled Group have complied in all material
respects with ERISA and the Code with respect to each Plan. No Reportable Event
has occurred with respect to any Plan, neither the Borrower nor any other member
of the Controlled Group has withdrawn from any Plan or Multiemployer Plan or
initiated steps to do so, and no steps have been taken to reorganize or
terminate any Plan or to Borrower's knowledge Multiemployer Plan. Neither
Borrower nor any member of the Controlled Group has any Plans or is a party to
any collective bargaining agreements other than those listed on Schedule 4.
There is no accumulated funding deficiency (as defined in Section 412 of the
Code or Section 302 of ERISA) outstanding which could reasonably be expected to
have a Material Adverse Effect, there is no lien outstanding under Section 412
of the Code or Section 302 of ERISA with respect to assets of Borrower or any
member of the Controlled Group and no requirement to provide security under
Section 401(a)(29) of the Code or Section 307 of ERISA has been or is reasonably
expected to be imposed on assets of Borrower or any member of the Controlled
Group. No liability to the PBGC or the Internal Revenue Service with respect to
any Plan or Multiemployer Plan or trust related thereto has been or is
reasonably expected to be incurred by Borrower or any member of the Controlled
Group which could reasonably be expected to have a Material Adverse Effect.
Neither Borrower nor any member of the Controlled Group has any contingent
liability with respect to any post-retirement benefits under any "welfare plan"
(as defined in Section 3(1) of ERISA) nor withdrawal liability or exit fee or
charge with respect to any such post-retirement benefits under any welfare plan
which could reasonably be expected to have a Material Adverse Effect.
Throughout the term of the Loan, Borrower is not and will not be an "employee
benefit plan" as defined in Section 3(32) of ERISA or a
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"governmental plan" within the meaning of Section 3(3) of ERISA, none of the
assets of Borrower neither will constitute "plan assets" of one nor more plans
for purposes of Title I of ERISA and Borrower will not be subject to state
statutes applicable to Borrower regulating investments and fiduciary obligations
with respect to governmental plans.
6.9. ACCURACY OF INFORMATION. All factual information heretofore or
contemporaneously furnished by or on behalf of Borrower or any of its
Subsidiaries or Investment Affiliates to the Administrative Agent or any Lender
for purposes of or in connection with this Agreement or any transaction
contemplated hereby is, and all other such factual information hereafter
furnished by or on behalf of Borrower or any of its Subsidiaries or Investment
Affiliates to the Administrative Agent or any Lender will be, true and accurate
(taken as a whole) on the date as of which such information is dated or
certified and not incomplete by omitting to state any material fact necessary to
make such information (taken as a whole) not misleading at such time. There are
no facts, events or conditions directly and specifically affecting Borrower, its
Subsidiaries or any Investment Affiliate known to Borrower and not disclosed to
Administrative Agent and the Documentation Agent or not disclosed in the
information furnished by or on behalf of Borrower, its Subsidiaries or
Investment Affiliates, which, in the aggregate, have or could be reasonably
expected to have a Material Adverse Effect.
6.10. REGULATION U. It does not hold any margin stock (as defined in
Regulation U).
6.11. MATERIAL AGREEMENTS. Neither it nor any Subsidiary or Qualifying
Investment Affiliate is in default in the performance, observance or fulfillment
of any of the obligations, covenants or conditions contained in (i) any
agreement to which it is a party, which default could have a Material Adverse
Effect, or (ii) except as disclosed on Schedule 9 any agreement or instrument
evidencing or governing Indebtedness.
6.12. COMPLIANCE WITH LAWS. Except as set forth in Schedule 6 it and its
Subsidiaries and Qualifying Investment Affiliates have complied in all material
respects, to Borrower's knowledge, with all applicable statutes, rules,
regulations, orders and restrictions of any domestic or foreign government or
any instrumentality or agency thereof, having jurisdiction over the conduct of
their respective businesses or the ownership of their respective Property except
where such non-compliance would not have a Material Adverse Effect. Except as
disclosed on Schedule 6, neither Borrower, any Subsidiary, or any Qualifying
Investment Affiliate, has received any written notice to the effect that its
operations are not in material compliance with any of the requirements of
applicable federal, state and local environmental, health and safety statutes
and regulations or the subject of any federal or state remedial action
responding to a release of any toxic or hazardous waste or substance into the
environment, which non-compliance or remedial action could have a Material
Adverse Effect.
6.13. OWNERSHIP OF PROPERTIES. On the date of this Agreement, Borrower
and its Subsidiaries and Qualifying Investment Affiliates will have good title,
free of all Liens other
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than Permitted Liens, to all of the Property and assets reflected in the
financial statements as owned by it and as set forth on SCHEDULE 2.
6.14. INVESTMENT COMPANY ACT. Neither Borrower nor any Subsidiary is an
"investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended.
6.15. PUBLIC UTILITY HOLDING COMPANY ACT. Neither Borrower nor any
Subsidiary is a "holding company" or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
6.16. SOLVENCY.
(i) Immediately after the Closing Date and immediately following
the making of each Loan and after giving effect to the application of the
proceeds of such Loans, (a) the fair value of the assets of the Borrower and its
Subsidiaries on a consolidated basis, at a fair valuation, will exceed the debts
and liabilities, subordinated, contingent or otherwise, of the Borrower and its
Subsidiaries on a consolidated basis; (b) the present fair saleable value of the
Property of the Borrower and its Subsidiaries on a consolidated basis will be
greater than the amount that will be required to pay the probable liability of
the Borrower and its Subsidiaries on a consolidated basis on their debts and
other liabilities, subordinated, contingent or otherwise, as such debts and
other liabilities become absolute and matured; (c) the Borrower and its
Subsidiaries on a consolidated basis will be able to pay their debts and
liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (d) the Borrower and its
Subsidiaries on a consolidated basis will not have unreasonably small capital
with which to conduct the businesses in which they are engaged as such
businesses are now conducted and are proposed to be conducted after the date
hereof.
(ii) It does not intend to, or to permit any of its Subsidiaries to
incur debts beyond its ability to pay such debts as they mature, taking into
account the timing of and amounts of cash to be received by it or any such
Subsidiary and the timing of the amounts of cash to be payable on or in respect
of its Indebtedness or the Indebtedness of any such Subsidiary.
6.17. INSURANCE. It and its Subsidiaries and the Qualifying Investment
Affiliates carry insurance on their Properties with financially sound and
reputable insurance companies, in such amounts, with such deductibles and
covering such risks as are customarily carried by companies engaged in similar
businesses and owning similar projects in localities where it and its
Subsidiaries and the Qualifying Investment Affiliates operate, including,
without limitation:
(i) Property and casualty insurance (including coverage for flood
and other water damage for any Property located in an area
identified by the Secretary of Housing and Urban Development
or any successor thereto as
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an area having special flood hazards pursuant to the National
Flood Insurance Act of 1968 or the Flood Disaster Protection
Act of 1973, as amended, or any successor law) in the amount
of 100% of the replacement cost of the improvements at the
Property with a waiver of depreciation;
(ii) Loss of rental income insurance in the amount not less than
one year's gross revenues from the Properties; and
(iii) Comprehensive general liability insurance in the amount of
$20,000,000 per occurrence.
6.18. NYSE AND REIT STATUS. The Borrower's common shares of beneficial
interest are listed on the New York Stock Exchange and there is no proceeding
pending to delist the Borrower's common shares of beneficial interest, and the
Borrower is qualified as a real estate investment trust and currently is in
compliance with all applicable provisions of the Code.
6.19. ENVIRONMENTAL MATTERS. Except as disclosed in Schedule 5, each of
the following representations and warranties is true and correct except to the
extent that the facts and circumstances giving rise to any such failure to be so
true and correct, in the aggregate, could not reasonably be expected to have a
Material Adverse Effect:
(i) To the knowledge of the Borrower, the Properties of Borrower,
its Subsidiaries, and Qualifying Investment Affiliates do not
contain, any Materials of Environmental Concern in amounts or
concentrations which constitute a violation of, or could
reasonably give rise to liability under, Environmental Laws.
(ii) To the knowledge of Borrower, the Properties of Borrower and
its Subsidiaries and Investment Affiliates and all operations
at the Properties are in compliance with all applicable
Environmental Laws, and there is no contamination at or under
such Properties, or violation of any Environmental Law with
respect to such Properties for which Borrower, its
Subsidiaries or Investment Affiliates is or could be liable.
(iii) Neither Borrower nor any of its Subsidiaries or Qualifying
Investment Affiliates has received any written notice of
violation, alleged violation, non-compliance, liability or
potential liability regarding Environmental Laws with regard
to any of the Properties, nor does it have knowledge that any
such notice will be received or is being threatened.
(iv) To the knowledge of Borrower, Materials of Environmental
Concern have not been transported or disposed of from the
Properties of Borrower and its Subsidiaries and Qualifying
Investment Affiliates in violation of,
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or in a manner or to a location which could reasonably give
rise to liability of Borrower, any Subsidiary, or any
Qualifying Investment Affiliate under, Environmental Laws, nor
have any Materials of Environmental Concern been generated,
treated, stored or disposed of at, on or under any of such
Properties in violation of, or in a manner that could give
rise to liability of Borrower, any Subsidiary or any
Qualifying Investment Affiliate under, any applicable
Environmental Laws.
(v) No judicial proceedings or governmental or administrative
action is pending, or, to the knowledge of Borrower,
threatened, under any Environmental Law to which Borrower, any
of its Subsidiaries, or any Qualifying Investment Affiliate,
is named as a party with respect to the Properties of such
entity, nor are there any consent decrees or other decrees,
consent orders, administrative order or other orders, or other
administrative or judicial requirements outstanding under any
Environmental Law with respect to such Properties for which
Borrower, its Subsidiaries, or any Qualifying Investment
Affiliate is or could be liable.
(vi) To the knowledge of Borrower, there has been no release or
threat of release of Materials of Environmental Concern at or
from the Properties of Borrower and its Subsidiaries and
Qualifying Investment Affiliates, or arising from or related
to the operations of such entity in connection with the
Properties in violation of or in amounts or in a manner that
could give rise to liability under Environmental Laws.
6.20. LICENSES, ETC. Borrower, its Subsidiaries or the Qualifying
Investment Affiliates have obtained and hold in full force and effect, all
material trademarks, trade names, copyrights, licenses, permits, certificates,
authorizations, qualifications, accreditations, easements, rights of way and
other rights, consents and approvals which are necessary for the operation of
the Properties.
6.21. JUDGMENTS. There are no judgments, decrees, or orders of any kind
against Borrower, its Subsidiaries or any Qualifying Investment Affiliate unpaid
of record which would have a Material Adverse Effect.
6.22. PROPERTY MANAGER. As of the date hereof, the manager of each
Property is the Borrower or a Qualifying Investment Affiliate.
6.23. UPDATED SCHEDULES. The Borrower may at any time and from time to
time update any Schedule to this Agreement by delivery to the Administrative
Agent of a revised Schedule and, from and after the date of delivery of such
updated Schedule to the Administrative Agent, and its approval by the Required
Lenders, the representations and warranties of the Borrower hereunder shall be
deemed to reflect such revised Schedule.
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6.24. UNENCUMBERED ASSETS. SCHEDULE 2 hereto contains a complete and
accurate description of Unencumbered Assets as of the Closing Date and as
supplemented from time to time including the entity that owns each Unencumbered
Asset. With respect to each Property identified from time to time as an
Unencumbered Asset, Borrower hereby represents and warrants as follows except to
the extent disclosed in writing to the Lenders and approved by the Required
Lenders (which approval shall not be unreasonably withheld):
(a) No portion of any improvement on the Unencumbered Asset is
located in an area identified by the Secretary of Housing and Urban
Development or any successor thereto as an area having special flood
hazards pursuant to the National Flood Insurance Act of 1968 or the Flood
Disaster Protection Act of 1973, as amended, or any successor law, or, if
located within any such area, Borrower or the respective Qualifying
Investment Affiliate has obtained and will maintain the insurance
prescribed in SECTION 6.17 hereof.
(b) To the Borrower's knowledge, Borrower or the respective
Qualifying Investment Affiliate has obtained all material certificates,
licenses and other approvals, governmental and otherwise, necessary for the
operation of the Unencumbered Asset and the conduct of its business and all
required zoning, building code, land use, environmental and other similar
permits or approvals which it is required to maintain, all of which are in
full force and effect as of the date hereof and not subject to revocation,
suspension, forfeiture or modification.
(c) To the Borrower's knowledge, the Unencumbered Asset and the
present use and occupancy thereof are in material compliance with all
applicable zoning ordinances (without reliance upon adjoining or other
properties), building codes, land use and Environmental Laws, laws relating
to the disabled including, but not limited to, the Americans with
Disabilities Act to the extent applicable, and other similar laws
("Applicable Laws").
(d) The Unencumbered Asset is served by all utilities required
for the current or contemplated use thereof. All utility service is
provided by public utilities and the Unencumbered Asset has accepted or is
equipped to accept such utility service.
(e) All public roads and streets necessary for service of and
access to the Unencumbered Asset for the current or contemplated use
thereof have been completed, are serviceable and all-weather and are
physically and legally open for use by the public.
(f) The Unencumbered Asset is served by public water and sewer
systems or, if the Unencumbered Asset is not serviced by a public water and
sewer system, such alternate systems are adequate and meet, in all material
respects, all
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requirements and regulations of, and otherwise complies in all material
respects with, all Applicable Laws with respect to such alternate systems.
(g) Borrower is not aware of any latent or patent structural or
other significant deficiency of the Unencumbered Asset. The Unencumbered
Asset is free of damage and waste that would materially and adversely
affect the value of the Unencumbered Asset, is in good repair and there is
no deferred maintenance other than ordinary wear and tear. The
Unencumbered Asset is free from damage caused by fire or other casualty.
There is no pending or, to the actual knowledge of Borrower threatened
condemnation proceedings affecting the Unencumbered Asset, or any part
thereof.
(h) To Borrower's knowledge, all liquid and solid waste
disposal, septic and sewer systems located on the Unencumbered Asset are in
a good and safe condition and repair and to Borrower's knowledge, in
material compliance with all Applicable Laws with respect to such systems.
(i) All improvements on the Unencumbered Asset lie within the
boundaries and building restrictions of the legal description of record of
the Unencumbered Asset, no such improvements encroach upon easements
benefitting the Unencumbered Asset other than encroachments that do not
materially adversely affect the use or occupancy of the Unencumbered Asset
and no improvements on adjoining properties encroach upon the Unencumbered
Asset or easements benefitting the Unencumbered Asset other than
encroachments that do not materially adversely affect the use or occupancy
of the Unencumbered Asset. All amenities, access routes or other items
that materially benefit the Unencumbered Asset are under direct control of
Borrower or the respective Qualifying Investment Affiliate, constitute
permanent easements that benefit all or part of the Unencumbered Asset or
are public property, and the Unencumbered Asset, by virtue of such
easements or otherwise, is contiguous to a physically open, dedicated all
weather public street, and has the necessary permits for ingress and
egress.
(j) There are no delinquent taxes, ground rents, water charges,
sewer rents, assessments, insurance premiums, leasehold payments, or other
outstanding charges affecting the Unencumbered Asset except to the extent
such items are being contested in good faith and as to which adequate
reserves have been provided.
(k) The Unencumbered Asset is assessed for real estate tax
purposes as one or more wholly independent tax lot or lots, separate from
any adjoining land or improvements not constituting a part of such lot or
lots, and no other land or improvements is assessed and taxed together with
the Unencumbered Asset or any portion thereof.
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(l) With respect to those Unencumbered Assets in which Borrower
or any Qualifying Investment Affiliate holds a leasehold estate under a
Financeable Ground Lease, with respect to each such Financeable Ground
Lease (i) Borrower or the respective Qualifying Investment Affiliate is the
owner of a valid and subsisting interest as tenant under the Financeable
Ground Lease; (ii) the Financeable Ground Lease is in full force and
effect, unmodified and not supplemented by any writing or otherwise; (iii)
all rent, additional rent and other charges reserved therein have been paid
to the extent they are payable to the date hereof; (iv) Borrower or the
respective Qualifying Investment Affiliate enjoys the quiet and peaceful
possession of the estate demised thereby, subject to any sublease; (v) the
Borrower or the respective Qualifying Investment Affiliate is not in
default under any of the terms thereof and there are no circumstances
which, with the passage of time or the giving of notice or both, would
constitute an event of default thereunder; (vi) the lessor under the
Financeable Ground Lease is not in default under any of the terms or
provisions thereof on the part of the lessor to be observed or performed;
(vii) the lessor under the Financeable Ground Lease has satisfied all of
its repair or construction obligations, if any, to date pursuant to the
terms of the Financeable Ground Lease; (viii) Schedule 2 lists all the
Financeable Ground Leases to which any of the Unencumbered Assets are
subject and all amendments and modifications thereto; and (ix) the lessor
indicated on Schedule 2 for each Financeable Ground Lease is the current
lessor under the related Financeable Ground Lease.
A breach of any of the representations and warranties contained in this
SECTION 6.24 with respect to a Property shall disqualify unless otherwise
approved by the Required Lenders, such Property from being an Unencumbered
Asset but shall not constitute a Default (unless the elimination of such
Property as an Unencumbered Asset results in a Default under one of the
other provisions of this Agreement including without limitation
SECTIONS 7.21(iii) or 7.21(iv)).
ARTICLE VII
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
7.1. FINANCIAL REPORTING. The Borrower will maintain, for themselves and
each Subsidiary, and shall cause each Qualifying Investment Affiliate to
maintain, a system of accounting established and administered in accordance with
GAAP, and furnish to the Lenders:
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(i) as soon as available, but in any event not later than 45 days
after the close of each fiscal quarter, for the Borrower an
unaudited consolidated balance sheet as of the close of each such
period and the related unaudited consolidated statements of
income and retained earnings and of cash flows of the Borrower
and its Subsidiaries for such period and the portion of the
fiscal year through the end of such period, setting forth in each
case in comparative form the figures for the previous year, all
certified by the Borrower's chief financial officer or chief
accounting officer;
(ii) As soon as available, but in any event not later than 45 days
after the close of each fiscal quarter, for the Borrower and its
Subsidiaries, related reports in form and substance satisfactory
to the Lenders, all certified by Borrower's chief financial
officer or chief accounting officer, including a statement of
Funds From Operations, a description of Unencumbered Assets, a
listing of capital expenditures (in the level of detail as
disclosed in Borrower's most recent Form 10Q), a report listing
and describing all newly acquired Properties, including their
cash flow, cost and secured or unsecured Indebtedness assumed in
connection with such acquisition, if any, summary Property
information for all Properties, including, without limitation,
their Property Operating Income, occupancy rates, square footage,
property type and date acquired or built, and such other
information as may be requested to evaluate the quarterly
compliance certificate delivered as provided below;
(iii) As soon as publicly available but in no event later than the date
such reports are to be filed with the Securities Exchange
Commission, copies of all Form 10Ks, 10Qs, 8Ks, and any other
annual, quarterly, monthly or other reports, copies of all
registration statements and any other public information which
the Borrower or any of its Subsidiaries files with the Securities
Exchange Commission and to the extent any of such reports
contains information required under the other subsections of this
SECTION 7.1, the information need not be furnished separately
under the other subsections;
(iv) As soon as available, but in any event not later than 90 days
after the close of each fiscal year of the Borrower and its
Subsidiaries, reports in form and substance satisfactory to the
Lenders, certified by the Borrower's chief financial officer or
chief accounting officer containing Property Operating Income
for each individual Property;
(v) Not later than forty-five (45) days after the end of each of the
first three fiscal quarters, and not later than ninety (90) days
after the end of the fiscal year, a compliance certificate in
substantially the form of EXHIBIT E hereto signed by the
Borrower's chief financial officer or chief
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accounting officer confirming that Borrower is in compliance with
all of the covenants of the Loan Documents, showing the
calculations and computations necessary to determine compliance
with the financial covenants contained in this Agreement
(including such schedules and backup information as may be
necessary to demonstrate such compliance) and stating that to
such officer's best knowledge, there is no other Default or
Unmatured Default exists, or if any Default or Unmatured Default
exists, stating the nature and status thereof;
(vi) (a) As soon as possible and in any event within 10 Business Days
after the Borrower knows that any Reportable Event has occurred
with respect to any Plan, a statement, signed by the chief
financial officer of Borrower, describing said Reportable Event
and within 20 days after such Reportable Event, a statement
signed by such chief financial officer describing the action
which Borrower proposes to take with respect thereto; and (b)
within 10 Business Days of receipt, any notice from the Internal
Revenue Service, PBGC or Department of Labor with respect to a
Plan regarding any excise tax, proposed termination of a Plan,
prohibited transaction or fiduciary violation under ERISA or the
Code which could result in any liability to Borrower or any
member of the Controlled Group in excess of $100,000; and (c)
within 10 Business Days of filing, any Form 5500 filed by
Borrower with respect to a Plan, or any member of the Controlled
Group which includes a qualified accountant's opinion.
(vii) As soon as possible and in any event within 30 days after receipt
by the Borrower, a copy of (a) any notice or claim to the effect
that the Borrower or any of its Subsidiaries or Qualifying
Investment Affiliates is or may be liable to any Person as a
result of the release by such entity, or any of its Subsidiaries,
or any other Person of any toxic or hazardous waste or substance
into the environment, and (b) any notice alleging any violation
of any federal, state or local environmental, health or safety
law or regulation by the Borrower or any of its Subsidiaries or
Investment Affiliates, which, in either case, could be reasonably
likely to have a Material Adverse Effect;
(viii) Promptly upon the furnishing thereof to the shareholders of the
Borrower, copies of all financial statements, reports and proxy
statements so furnished;
(ix) Promptly upon the distribution thereof to the press or the
public, copies of all press releases;
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(x) As soon as possible, and in any event within 10 days after the
Borrower knows of any fire or other casualty or any pending or
threatened condemnation or eminent domain proceeding with respect
to all or any portion of any Property or any property secured by
a Qualified Mortgage, a statement signed by the Chief Financial
Officer of Borrower, describing such fire, casualty or
condemnation and the action Borrower intends to take with respect
thereto;
(xi) Not later than 45 days after the end of each quarter, a report on
the aging of receivables with respect to each of the Properties
(I.E. 0-29, 30-59, 60-89 and 90 or more days past due) showing
aggregate delinquencies for each of the Properties (including a
characterization of the type of receivable) and trends for the
prior four quarters;
(xii) Not later than 45 days after the end of each quarter, an
unaudited financial statement for each Qualifying Investment
Affiliate that is not a Subsidiary that owns an Unencumbered
Asset; and
(xiii) Such other information (including, without limitation, financial
statements for the Borrower and non-financial information) as the
Administrative Agent or any Lender may from time to time
reasonably request.
7.2. USE OF PROCEEDS. (i) The Borrower will use the proceeds of the
Advances and the Facility Letters of Credit for the general business purposes of
the Borrower, including working capital needs, closing costs, and interim or
other financing for acquisitions of new Projects, construction of new
improvements or expansions of existing improvements on Projects, and to repay
outstanding Indebtedness; and (ii) The Borrower will not, nor will it permit
any Subsidiary to, use any of the proceeds of the Advances (x) to purchase or
carry any "MARGIN STOCK" (as defined in Regulation U) or (y) to fund any tender
offer for all or substantially all of another Person's outstanding Capital Stock
registered with the Securities and Exchange Commission under the Securities Act
of 1933, unless such Person shall have consented to such tender offer prior to
its commencement and the Required Lenders shall have consented to such use of
the proceeds of such Advance.
7.3. NOTICE OF DEFAULT. The Borrower will give, and will cause each of its
Subsidiaries and each Qualifying Investment Affiliate to give, prompt notice in
writing to the Lenders of the occurrence of any Default or Unmatured Default and
of any other development, financial or otherwise, which could be reasonably
likely to have a Material Adverse Effect.
7.4. CONDUCT OF BUSINESS. The Borrower will do, and will cause each of its
Subsidiaries and Qualifying Investment Affiliates to do, all things necessary to
remain duly incorporated and/or duly qualified, validly existing and in good
standing as a real estate investment trust, corporation, general partnership,
limited liability company or limited partnership, as the case may be, in its
jurisdiction of incorporation/formation, except, with
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respect to any Subsidiary or any Qualifying Investment Affiliate having less
than $10,000,000 of Market Capitalization, where the preservation of its
corporate existence, in the good faith business judgment of the Borrower, is no
longer in the best interests of the Borrower and the failure to preserve its
corporate existence would not have a Material Adverse Effect and the elimination
of its Properties from the calculation of financial covenant compliance would
not cause a Default or an Unmatured Default. The Borrower will maintain all
requisite authority to conduct its business in each jurisdiction in which the
Properties are located and, except where the failure to be so qualified would
not have a Material Adverse Effect, in each jurisdiction required to carry on
and conduct its businesses in substantially the same manner as it is presently
conducted, and, specifically, neither the Borrower nor its Subsidiaries nor the
Qualifying Investment Affiliates will undertake any business other than the
acquisition, development, ownership, management, operation and leasing of
warehouse/industrial properties and ancillary businesses specifically related
thereto, except that the Borrower and its Subsidiaries and Qualifying Investment
Affiliates may invest in other assets subject to the following limitations with
respect to the specified categories of assets:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
CATEGORIES OF ASSETS TOTAL INVESTMENT LIMITATIONS
- --------------------------------------------------------------------------------
(i) unimproved land 7% of Market Capitalization
- --------------------------------------------------------------------------------
(ii) other property holdings (excluding 5% of Market Capitalization
cash, Cash Equivalents, the Non-
industrial Properties and Indebtedness
of any Subsidiary or Qualifying
Investment Affiliate to the Borrower)
- --------------------------------------------------------------------------------
(iii) stock holdings other than in 5% of Market Capitalization
Subsidiaries and Qualifying
Investment Affiliates
- --------------------------------------------------------------------------------
(iv) mortgages other than Qualified 5% of Market Capitalization
Mortgages
- --------------------------------------------------------------------------------
(v) joint ventures and partnerships 10% of Market Capitalization
other than investments in Qualifying
Investment Affiliates
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
The total investment in all the foregoing investment categories in the aggregate
shall be less than or equal to twenty percent (20%) of Market Capitalization.
In addition to the foregoing restrictions, (a) investments in unimproved land
which is not adjacent to existing improvements and not under active planning for
near term development as evidenced to the reasonable satisfaction of
Administrative Agent shall not exceed 5% of Market Capitalization, (b) lessee's
interests in operating leases pursuant to which Borrower, its Subsidiaries or
Investment Affiliates operate any properties shall not exceed 10% of Market
Capitalization,
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and (c) no single industrial property investment shall exceed 10% of Market
Capitalization. For the purposes of this SECTION 7.4, all investments shall be
valued in accordance with GAAP.
7.5. TAXES. The Borrower will pay, and will cause each of its
Subsidiaries and Qualifying Investment Affiliates to pay, when due all taxes,
assessments and governmental charges and levies upon them of their income,
profits or Properties, except those which are being contested in good faith by
appropriate proceedings and with respect to which adequate reserves have been
set aside.
7.6. INSURANCE. (i) The Borrower will, and will cause each of its
Subsidiaries and Qualifying Investment Affiliates to, maintain with financially
sound and reputable insurance companies insurance on all its Property in such
amounts and covering such risks as is consistent with sound business practice
and in compliance with the representation in SECTION 6.17, and the Borrower will
furnish to the Administrative Agent or any Lender upon request full information
as to the insurance carried. (ii) The Borrower will promptly notify the
Administrative Agent if there has been a termination of any insurance policy or
a material change in coverage or of the credit rating of the insurer providing
such coverage.
7.7. COMPLIANCE WITH LAWS. The Borrower will, and will cause each of
its Subsidiaries and Qualifying Investment Affiliates to, be in material
compliance, with all laws, rules and regulations and with all final orders,
writs, judgments, injunctions, decrees or awards to which they may be subject.
7.8. MAINTENANCE OF PROPERTIES. The Borrower will, and will cause each
of its Subsidiaries and Qualifying Investment Affiliates to, do all things
necessary to maintain, preserve, protect and keep its Property in good repair,
working order and condition, and make all necessary and proper repairs, renewals
and replacements so that their businesses carried on in connection therewith may
be properly conducted at all times.
7.9. INSPECTION. Upon reasonable notice, the Borrower will, and will
cause each of its Subsidiaries and Qualifying Investment Affiliates to, permit
the Lenders, by their respective representatives and agents, to inspect any of
the Properties, corporate books and financial records of the Borrower and each
of its Subsidiaries and Qualifying Investment Affiliates, to examine and make
copies of the books of accounts and other financial records of the Borrower and
each of its Subsidiaries and Qualifying Investment Affiliates, and to discuss
the affairs, finances and accounts of the Borrower and each of its Subsidiaries
and Qualifying Investment Affiliates, and to be advised as to the same by, their
respective officers at such reasonable times during normal business hours and
reasonable intervals as the Lenders may reasonably designate.
7.10. MAINTENANCE OF STATUS. The Borrower shall at all times
(i) maintain the listing of its common shares of beneficial interest on the New
York Stock Exchange and not take any
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action that results in a proceeding to delist such common shares, and
(ii) maintain its status as a real estate investment trust in compliance with
all applicable provisions of the Code.
7.11. DIVIDENDS. Provided there is NOT a continuing Default under
SECTION 8.1 or SECTION 8.2, and there is not a continuing Default under SECTION
8.3 relating to a breach of any of the covenants contained in SECTIONS 7.20 and
7.21, the Borrower shall be permitted to declare and pay dividends on their
Capital Stock from time to time in amounts determined by the Borrower, PROVIDED,
HOWEVER, that subject to the terms of the next sentence, in no event shall the
Borrower declare or pay dividends on their Capital Stock if dividends paid in
any period of four fiscal quarters, in the aggregate, would exceed 90% of Funds
From Operations for such period. Notwithstanding the foregoing, unless at the
time of distribution there exists a Default in the payment of principal,
interest, or the Commitment Fee, the Borrower shall be permitted to distribute
whatever amount of dividends is necessary to maintain its tax status as a real
estate investment trust.
7.12. MERGER; SALE OF ASSETS. The Borrower will not, nor will it permit
any of its Subsidiaries or Qualifying Investment Affiliates to, enter into any
merger, consolidation, reorganization or liquidation or transfer or otherwise
dispose of all or a portion of their Property if such disposition would
constitute a "Restricted Disposition," except for (i) such transactions that
occur between Wholly-Owned Subsidiaries, (ii) transactions where Borrower is the
surviving entity and there is no change in business conducted or loss of an
investment grade rating on such entity's long-term unsecured debt and no other
Default results from such transaction, or (iii) transactions that are approved
in advance in writing by the Lenders. For purposes of this SECTION 7.12, a
"RESTRICTED DISPOSITION" shall mean any disposition of assets (exclusive of
Like-Kind Exchanges of one industrial/warehouse property for another and
dispositions of Non-industrial Properties) if such disposition is of assets that
(i) when aggregated with all other assets of the Borrower, its Subsidiaries and
Qualifying Investment Affiliates previously disposed of during the fiscal year
(exclusive of Like-Kind Exchanges of one industrial/warehouse property for
another and dispositions of Non-industrial Properties), comprise more than 10%
of Market Capitalization for the most recent available quarter or (ii) when
aggregated with all other assets of the Borrower, its Subsidiaries and
Qualifying Investment Affiliates previously disposed of (exclusive of Like-Kind
Exchanges of one industrial/warehouse property for another and dispositions of
Non-industrial Properties) from the Closing Date to the date of such sale
comprise 25% or more of Market Capitalization for the most recent available
quarter.
7.13. TRANSFERS OF UNENCUMBERED ASSETS. Neither the Borrower nor any of
its Qualifying Investment Affiliates shall transfer or otherwise dispose of
(other than the creation or incurrence of Liens permitted under SECTION 7.16) an
Unencumbered Asset (excluding its Non-industrial Properties) without the prior
written consent of Lenders holding 51% or more of the Aggregate Commitment if
such Unencumbered Asset, together with any other Unencumbered Assets (excluding
the Non-industrial Properties) which have been disposed of during the period of
four fiscal quarters ending with the quarter during which such transfer occurs,
have a value which exceeds 20% of the Value of Unencumbered Assets (as
determined
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at the beginning of such four quarter period and increased to reflect the
acquisition of Unencumbered Assets during such four quarter period) or if such
transfer would result in a violation of the covenants contained in SECTIONS 7.20
and 7.21.
7.14. OWNERSHIP AND CONTROL OF BORROWER. The Borrower's management
(president, vice president, senior vice president, secretary, treasurer,
executive vice president, chief financial officer or chief executive officer)
and directors shall directly or indirectly control the ownership (which shall
include vested options) of a minimum 550,000 common shares of the Borrower
adjusted for stock splits, provided that if Borrower's management and directors
fail to maintain such ownership, such failure shall not constitute a Default
unless such failure continues for six months without approval by the Required
Lenders of such lower level of ownership.
7.15. SUBSIDIARIES AND QUALIFYING INVESTMENT AFFILIATES. In the event
that Borrower shall, directly or indirectly, transfer or otherwise dispose of
the Capital Stock (other than intercompany transfers where following such
transfer the assets of the Subsidiary or Qualifying Investment Affiliate still
meet the requirements for being an Unencumbered Asset) or other ownership
interests in any Subsidiaries or Qualifying Investment Affiliates, such transfer
or disposal shall be treated as though the applicable Subsidiary or Qualifying
Investment Affiliate had disposed of its assets for purposes of determining
whether such disposition is a Restricted Disposition as defined in SECTION 7.12
or whether such disposition requires a written consent of Lenders pursuant to
SECTION 7.13.
7.16. LIENS. The Borrower will not, nor will it permit any of its
Subsidiaries or Qualifying Investment Affiliates to, create, incur, or suffer to
exist any Lien in, of or on the Property of the Borrower or any of their
Subsidiaries or Qualifying Investment Affiliates except:
(i) Liens for taxes, assessments or governmental charges or levies
on their Property if the same shall not at the time be
delinquent or thereafter can be paid without penalty, or are
being contested in good faith and by appropriate proceedings
and for which adequate reserves shall have been set aside on
their books;
(ii) Liens which arise by operation of law, such as carriers',
warehousemen's, landlords', materialmen and mechanics' liens
and other similar liens arising in the ordinary course of
business which secure payment of obligations not more than 30
days past due or which are being contested in good faith by
appropriate proceedings and for which adequate reserves shall
have been set aside on its books;
(iii) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions,
or other social security or retirement benefits, or similar
legislation;
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(iv) Utility easements, building restrictions, zoning restrictions,
easements and such other encumbrances or charges against real
property as are of a nature generally existing with respect to
properties of a similar character and which do not in any
material way affect the marketability of the same or interfere
with the use thereof in the business of the Borrower or its
Subsidiaries or Qualifying Investment Affiliates;
(v) Liens of any Subsidiary or Investment Affiliate in favor of
the Borrower;
(vi) Liens existing on the date hereof and described in SCHEDULE 3
hereto; and
(vii) Liens arising in connection with any Indebtedness permitted
hereunder to the extent such Liens will not result in a
violation of any of the provisions of this Agreement.
Liens permitted pursuant to this SECTION 7.16 shall be deemed to be "PERMITTED
LIENS".
7.17. AFFILIATES. The Borrower will not, nor will it permit any of its
Subsidiaries or Qualifying Investment Affiliates to, enter into any transaction
(including, without limitation, the purchase or sale of any Property or service)
with, or make any payment or transfer to, any Affiliate except in the ordinary
course of business and pursuant to the reasonable requirements of the Borrower's
or such Subsidiary's or Qualifying Investment Affiliate's business and upon fair
and reasonable terms no less favorable to the Borrower or such Subsidiary or
Qualifying Investment Affiliate than the Borrower or such Subsidiary or
Qualifying Investment Affiliate would obtain in a comparable arms-length
transaction.
7.18. INTEREST RATE HEDGING. The Borrower will not enter into or remain
liable upon, nor will it permit any Subsidiary or Qualifying Investment
Affiliate to enter into or remain liable upon, any agreements, devices or
arrangements designed to protect at least one of the parties thereto from the
fluctuations of interest rates, exchange rates or forward rates applicable to
such party's assets, liabilities or exchange transactions, including, but not
limited to, interest rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate
currency or interest rate options unless such agreement, device or arrangement
was entered into by the Borrower, a Subsidiary or Qualifying Investment
Affiliate in the ordinary course of its business for the purpose of hedging
interest rate risk to the Borrower, a Subsidiary or Qualifying Investment
Affiliate.
7.19. VARIABLE INTEREST INDEBTEDNESS. The Borrower shall not at any time
permit the outstanding principal balance of Indebtedness of the Borrower and its
Subsidiaries or Qualifying Investment Affiliates which bears interest at an
interest rate that is not fixed through the maturity date of such Indebtedness
("Variable Rate Debt") to exceed $150,000,000, unless the amount in excess of
$150,000,000 is covered by interest rate caps or other interest rate protection
products reasonably satisfactory to the Required Lenders.
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Notwithstanding the foregoing, Borrower shall be entitled to exclude up to
$75,000,000 of tax exempt bonds from the calculation of Variable Rate Debt.
7.20. CONSOLIDATED NET WORTH. The Borrower as of the last day of any
fiscal quarter, shall maintain a Consolidated Net Worth of not less than the sum
of (i) $275,000,000 plus (ii) seventy-five percent (75%) of the aggregate
proceeds received by the Borrower (net of customary related fees and expenses)
in connection with any offering of stock in the Borrower after the Closing Date.
7.21. INDEBTEDNESS AND CASH FLOW COVENANTS. The Borrower shall not at
any time permit:
(i) the ratio of EBITDA to Fully Diluted Debt Service to be less
than 2.00 to 1.0 for the quarter then ended;
(ii) Consolidated Total Indebtedness to exceed fifty percent
(50%) of Market Capitalization;
(iii) the Value of Unencumbered Assets to be less than 1.75 times
the Consolidated Senior Unsecured Indebtedness;
(iv) the ratio obtained by dividing: (a) the Property Operating
Income after deducting (without duplication) the Capital
Expenditure Reserve Amount and an assumed management fee
equal to 1% of gross revenues (excluding tenant
reimbursements) from all Unencumbered Assets qualifying for
inclusion in the calculation of Value of Unencumbered Assets
for such quarter by (b) that portion of Debt Service
attributable to Consolidated Unsecured Indebtedness plus
(without duplication) Borrower's pro rata share (based on
economic interest) of Debt Service for such quarter
attributable to unsecured indebtedness of Qualifying
Investment Affiliates that own assets qualifying for
inclusion in the calculation of Value of Unencumbered Assets
to be less than 2.00 to 1.0 for the quarter then ended; and
(v) Consolidated Secured Indebtedness to exceed thirty percent
(30%) of Market Capitalization.
7.22. ENVIRONMENTAL MATTERS. The Borrower will, and will cause each of
its Subsidiaries and Qualifying Investment Affiliates to:
(i) be in material compliance with, and use its reasonable
efforts to ensure material compliance by all tenants and
subtenants, if any, with, all applicable Environmental Laws
and obtain and be in material compliance with and maintain,
and use its reasonable efforts
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to ensure that all tenants and subtenants obtain and be in
material compliance with and maintain, all material licenses,
approvals, notifications, registrations or permits required
by applicable Environmental Laws;
(ii) conduct and complete, or will use its reasonable efforts to
cause its tenants or subtenants to conduct and complete, all
investigations, studies, sampling and testing, and all
remedial, removal and other actions required under
Environmental Laws and promptly comply in all material
respects with all lawful orders and directives of all
Governmental Authorities applicable to Borrower, its
Subsidiaries or Qualifying Investment Affiliates or their
respective Properties regarding Environmental Laws, except
to the extent that (a) the same are being contested in good
faith by appropriate proceedings and the pendency of such
proceedings could not be reasonably expected to have a
Material Adverse Effect, or (b) the Borrower has determined
in good faith that contesting the same is not in the best
interests of the Borrower and its Subsidiaries and the
failure to contest the same could not be reasonably expected
to have a Material Adverse Effect;
(iii) defend, indemnify and hold harmless the Administrative
Agent, the Documentation Agent and each Lender, and their
respective employees, agents, officers and directors, from
and against any claims, demands, penalties, fines,
liabilities, settlements, damages, costs and expenses
arising out of, or in any way relating to the violation of,
noncompliance with or liability under any Environmental Laws
applicable to the operations of the Borrower, its
Subsidiaries and Qualifying Investment Affiliates or the
Properties for which the Borrower, its Subsidiaries or
Qualifying Investment Affiliates are liable or could
reasonably be expected to be liable, including, without
limitation, reasonable attorney's and consultant's fees,
investigation and laboratory fees, response costs, court
costs and litigation expenses, except to the extent that any
of the foregoing arise out of the gross negligence or
willful misconduct of the party seeking indemnification
therefor. This indemnity shall continue in full force and
effect regardless of the termination of this Agreement; and
(iv) prior to the acquisition of a new Property after the Closing
Date, perform or cause to be performed an environmental
investigation, which investigation shall at a minimum comply
with the specifications and procedures attached hereto as
EXHIBIT F. In connection with any such investigation,
Borrower shall cause to be prepared a report of such
investigation and make it available to the Administrative
Agent, and any Lender may request that Administrative Agent
obtain a copy
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of such report. Such report shall be reasonably satisfactory
in form and substance to the Administrative Agent.
7.23. NOTIFICATION OF RATING CHANGE. The Borrower shall notify the
Administrative Agent promptly (but no later than ten days following the
occurrence of any of the following events) if there is any change in the rating
assigned to Borrower's long term unsecured debt (regardless of whether any such
debt is outstanding) or Facility rating from Moody's or S&P or any substitute
rating agency of either of such ratings.
7.24. MAXIMUM REVENUE FROM SINGLE TENANT. Borrower shall not permit the
rent revenue (exclusive of tenant reimbursements) received from a single tenant
during any quarter (as annualized), to exceed 5% of Market Capitalization as of
the last day of such quarter.
7.25. NEGATIVE PLEDGE. Borrower agrees that throughout the term of this
Facility, no "negative pledge" on Unencumbered Assets shall be given to any
other lender.
7.26. MANAGER. The Properties (other than the Non-industrial Properties)
shall at all times be managed by the Borrower or a Qualifying Investment
Affiliate.
7.27. ACCELERATION NOTICE. Borrower agrees that it shall, within ten
(10) days after receipt of written notice that any Indebtedness aggregating
$5,000,000 or more of Borrower or any Subsidiary or Qualifying Investment
Affiliate has been accelerated, provide written notice to the Administrative
Agent of such acceleration.
7.28. LIEN SEARCHES; TITLE SEARCHES. Borrower shall, upon the
Administrative Agent's request therefor given from time to time, but not more
frequently than once during the term of this Facility, unless a Default shall
have occurred and be continuing or such Title Search indicates a Lien other than
a Permitted Lien or another state of facts not reasonably satisfactory to the
Administrative Agent and the Required Lenders, pay for (a) reports of UCC, tax
lien, judgment and litigation searches with respect to Borrower and each
Qualifying Investment Affiliate that owns an Unencumbered Asset, and (b)
searches of title to each of the Properties which are Unencumbered Assets (each,
a "Title Search"). All Title Searches and lien searches required under this
Agreement shall be conducted by search firms designated by Administrative Agent
in each of the locations designated by the Administrative Agent. After the
effective date of the Negative Pledge Agreement pursuant to SECTION 7.25, such
Title Searches may be required more frequently provided, however, that the
Borrower shall not be required to pay for more than one set of searches during
any calendar year.
7.29. ADDITIONAL COVENANTS. Borrower will not engage in or knowingly
permit any illegal activities at any Property.
7.30. CALCULATION OF FINANCIAL COVENANTS UPON PROPERTY BREACHES. In the
event of a breach of a representation or warranty under ARTICLE VI or of a
covenant under SECTION 7.5, 7.6, 7.7, 7.8, 7.16, 7.22 or 7.26 (which relates to
a Property and which does not have a
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Material Adverse Effect (a "Property Breach")), or if there are environmental
disclosures concerning a Property contained in Schedule 5, Borrower shall be
required to demonstrate financial covenant compliance under applicable
provisions of Article VII both with and without the affected Property for as
long as such breach or condition shall exist.
ARTICLE VIII
DEFAULTS
The occurrence of any one or more of the following events shall constitute
a Default:
8.1. Nonpayment of any principal payment on any Note when due and
payable.
8.2. Nonpayment of (i) interest upon any Note, any Facility Fee,
Administrative Agent's Fee or Facility Letter of Credit Fee, under any of the
Loan Documents within five (5) Business Days after the same becomes due or (ii)
any other payment Obligation under any of the Loan Documents within five (5)
Business Days of Borrower's receipt of written notice.
8.3. The breach of any of the terms or provisions of SECTIONS 7.1(iii),
(iv) AND (v), 7.2(ii), 7.6(i) (to the extent such breach relates to a
cancellation of an insurance policy or Borrower's failure to pay the required
premium to renew a policy), 7.6(ii), 7.10, 7.11, 7.12, 7.13, 7.14, 7.16, 7.18,
7.20, 7.21 or 7.25, or a breach of any of the terms or provisions of SECTION 7.1
(other than as set forth above) which remains uncured for ten (10) business
days.
8.4. Any representation or warranty made or deemed made by or on behalf
of the Borrower or any of its Subsidiaries to the Lenders or the Administrative
Agent under or in connection with this Agreement (other than SECTION 6.24 and a
Property Breach unless such breach causes a Default under another provision of
this Article VIII), any Loan, or any certificate or information delivered in
connection with this Agreement or any other Loan Document shall be materially
false on the date as of which made.
8.5. The breach (other than a breach which constitutes a Default under
SECTION 8.1, 8.2, 8.3 or 8.4 and other than a Property Breach) of any of the
other terms or provisions of this Agreement which is not remedied within thirty
(30) days or ninety (90) days, for a breach which is curable but cannot be cured
within 30 days but is being diligently cured, after the earlier to occur of the
breach or receipt of written notice from the Administrative Agent or any Lender.
8.6. Failure of the Borrower, any Qualifying Investment Affiliate (to
the extent the Indebtedness is recourse to Borrower or any Subsidiary) or any of
its Subsidiaries to pay when due (after applicable cure periods) any
Indebtedness aggregating in excess of $5,000,000 for which liability is not
limited to specific pledged collateral.
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8.7. The Borrower, any Qualifying Investment Affiliate that is not a
Subsidiary having a Market Capitalization which is more than 3% of Market
Capitalization, or any Subsidiary having more than $10,000,000 of Market
Capitalization shall (i) have an order for relief entered with respect to it
under the Federal bankruptcy laws as now or hereafter in effect, (ii) make an
assignment for the benefit of creditors, (iii) apply for, seek, consent to, or
acquiesce in, the appointment of a receiver, custodian, trustee, examiner,
liquidator or similar official for it or any Substantial Portion of its
Property, (iv) institute any proceeding seeking an order for relief under the
Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate
it as a bankrupt or insolvent, or seeking dissolution, winding up, liquidation,
reorganization, arrangement, adjustment or composition of it or its debts under
any law relating to bankruptcy, insolvency or reorganization or relief of
debtors or fail to file an answer or other pleading denying the material
allegations of any such proceeding filed against it, (v) take any corporate
action to authorize or effect any of the foregoing actions set forth in this
SECTION 8.7, (vi) fail to contest in good faith any appointment or proceeding
described in SECTION 8.8 or (vii) not pay, or admit in writing its inability to
pay, its debts generally as they become due.
8.8. A receiver, trustee, examiner, liquidator or similar official shall
be appointed for the Borrower, any Qualifying Investment Affiliate that is not a
Subsidiary having a Market Capitalization which is more than 3% of Market
Capitalization, or any Subsidiary having more than $10,000,000 of Market
Capitalization or any Substantial Portion of its Property, or a proceeding
described in SECTION 8.7(iv) shall be instituted against the Borrower any
Qualifying Investment Affiliate or any such Subsidiary and such appointment
continues undischarged or such proceeding continues undismissed or unstayed for
a period of sixty (60) consecutive days.
8.9. Any court, government or governmental agency shall condemn, seize
or otherwise appropriate, or take custody or control of (each a "CONDEMNATION"),
all or any portion of the Properties of the Borrower and its Subsidiaries and
Qualifying Investment Affiliates which, when taken together with all other
Property of the Borrower and its Subsidiaries and Qualifying Investment
Affiliates so condemned, seized, appropriated, or taken custody or control of,
during the twelve-month period ending with the month in which any such
Condemnation occurs, constitutes a Substantial Portion of their Property.
8.10. The Borrower or any of its Subsidiaries or any Qualifying
Investment Affiliate shall fail within sixty (60) days to pay, bond or otherwise
discharge any judgments or orders for the payment of money in an amount which,
when added to all other judgments or orders outstanding against the Borrower or
any Subsidiary or any Qualifying Investment Affiliate would exceed $10,000,000
in the aggregate, which have not been stayed on appeal or otherwise
appropriately contested in good faith, unless the liability is insured against
and the insurer has not challenged coverage of such liability.
8.11. The Borrower or any other member of the Controlled Group shall have
been notified by the sponsor of a Multiemployer Plan, the PBGC or other party
that it has incurred withdrawal liability or is in default of payments to such
Multiemployer Plan in an amount
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which, when aggregated with all other amounts required to be paid to
Multiemployer Plans by the Borrower or any other member of the Controlled Group
as withdrawal liability (determined as of the date of such notification) or
amounts in default, exceeds $250,000 or requires payments exceeding $100,000 per
annum.
8.12. The Borrower or any other member of the Controlled Group shall have
been notified by the sponsor of a Multiemployer Plan or the PBGC or other party
that such Multiemployer Plan is in reorganization or is being terminated, within
the meaning of Title IV of ERISA, if as a result of such reorganization or
termination the aggregate annual contributions of the Borrower and the other
members of the Controlled Group (taken as a whole) to all Multiemployer Plans
which are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the
respective plan years of each such Multiemployer Plan immediately preceding the
plan year in which the reorganization or termination occurs by an amount
exceeding $250,000 per year.
8.13. (i) A Reportable Event shall occur with respect to a Plan, or (ii)
any Plan shall incur an accumulated funding deficiency (as defined in Section
412 of the Code or Section 302 of ERISA), whether or not waived, or fail to make
a required installment payment on or before the due date under Section 412 of
the Code or Section 302 of ERISA, or (iii) Borrower or a member of the
Controlled Group shall have engaged in a nonexempt prohibited transaction under
Section 4975 of the Code or Section 406 of ERISA, or (iv) Borrower or any member
of the Controlled Group shall fail to pay when due an amount which it shall have
become liable to pay to the PBGC, or any Plan, any Multiemployer Plan, or (v)
Borrower or any member of the Controlled Group shall have received a notice from
the PBGC of its intention to terminate a Plan or to appoint a trustee to
administer a Plan, or Multiemployer Plan, or a condition exists by reason of
which the PBGC would be entitled to obtain a decree adjudicating that a Plan
must be terminated, or (vi) any other event or condition shall occur or exist
with respect to any employee benefit plan (as defined in Section 3(3) of ERISA)
or Plan or any Multiemployer Plan, which could reasonably be expected to subject
Borrower or any member of the Controlled Group to any tax, penalty or other
liability or the imposition of any lien or security interest on Borrower or any
member of the Controlled Group, provided, however, that any event or
circumstance in SECTIONS 8.13(i) through (vi) shall only be an Event of Default
if it would result in liability to Borrower in excess of $250,000 per year; or
(vii) the assets of Borrower become or are deemed to be assets of an employee
benefit plan (as defined in Section 3(3) of ERISA or a plan as defined in
Section 4975 of the Code). No Default under this SECTION 8.13 shall be deemed
to have been or be waived or corrected because of any disclosure by Borrower.
8.14. Failure to remediate within the time period required by law or
governmental order, (or within a reasonable time in light of the nature of the
problem if no specific time period is so established), environmental problems in
violation of applicable law (i) related to Properties of the Borrower and its
Subsidiaries and the Qualifying Investment Affiliates if the affected Properties
have an aggregate book value in excess of $10,000,000 or (ii) where the
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estimated cost of remediation is in the aggregate in excess of $500,000, in each
case after all administrative hearings and appeals have been concluded.
8.15. The occurrence of any default under any Loan Document other than
this Agreement or the breach of any of the terms or provisions of any Loan
Document other than this Agreement, which default or breach continues beyond any
period of grace therein provided.
ARTICLE IX
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
9.1. ACCELERATION. If any Default described in SECTION 8.7 or 8.8
occurs with respect to the Borrower or any Subsidiary or Qualifying Investment
Affiliate, the obligations of the Lenders to make Loans and of the Issuing Bank
to issue Facility Letters of Credit hereunder shall automatically terminate and
the Obligations shall immediately become due and payable without any election or
action on the part of the Administrative Agent or any Lender. If any other
Default occurs and is continuing, the Required Lenders may terminate or suspend
the obligations of the Lenders to make Loans hereunder and to issue Facility
Letters of Credit, or declare the Obligations to be due and payable, or both,
whereupon the Obligations shall become immediately due and payable, upon written
notice to the Borrower.
In addition to the foregoing, following the occurrence and during the
continuance of a Default and so long as any Facility Letter of Credit has not
been fully drawn and has not been cancelled or expired by its terms, upon demand
by the Administrative Agent or the Required Lenders, the Borrower shall
establish and deposit in the Letter of Credit Collateral Account cash in an
amount equal to the aggregate undrawn face amount of all outstanding Facility
Letters of Credit and all fees and other amounts due or which may become due
with respect thereto. The Borrower shall have no control over funds in the
Letter of Credit Collateral Account, which funds will be invested by the
Administrative Agent from time to time at its discretion in certificates of
deposit of First Chicago having a maturity not exceeding 30 days. Such funds
shall be promptly applied by the Administrative Agent to reimburse any Issuing
Bank for drafts drawn from time to time under the Facility Letters of Credit.
Such funds, if any, remaining in the Letter of Credit Collateral Account
following the payment of all Obligations in full shall, unless Administrative
Agent is otherwise directed by a court of competent jurisdiction, be promptly
paid over to the Borrower.
If, within forty-five (45) days after acceleration of the maturity of the
Obligations or termination of the obligations of the Lenders to make Loans
hereunder or to issue Facility Letters of Credit as a result of any Default
(other than any Default as described in SECTION 8.7 or 8.8 with respect to the
Borrower) and before any judgment or decree for the payment of the Obligations
shall have been obtained or entered, the Required Lenders (in their sole
discretion)
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may direct, the Administrative Agent shall, by notice to the Borrower, rescind
and annul such acceleration and/or termination.
9.2. AMENDMENTS, WAIVERS, DECISIONS. Subject to the provisions of this
ARTICLE IX, the Required Lenders (or the Administrative Agent with the consent
or direction in writing of the Required Lenders) and the Borrower may enter into
agreements supplemental hereto for the purpose of adding or modifying any
provisions to the Loan Documents or changing in any manner the rights of the
Lenders or the Borrower hereunder, or waiving any Default hereunder; PROVIDED,
HOWEVER, that no such supplemental agreement shall, without the consent of all
Lenders:
(i) Extend the Facility Termination Date or forgive all or any
portion of the principal amount of any Loan or accrued
interest thereon or the Commitment Fee, reduce the Applicable
Margins on the underlying interest rate options or otherwise
modify or add to such interest rate options, or extend the
time of payment of any of the Obligations.
(ii) Reduce the percentage specified in the definition of Required
Lenders or change any provision that currently requires an
approval from the Required Lenders, all Lenders or the
specific Lender affected, to approval by a different standard.
(iii) Increase the amount of the Aggregate Commitment.
(iv) Permit the Borrower to assign its rights under this Agreement.
(v) Amend SECTION 2.2, 2.3, 3.8(a), 12.2, or this SECTION 9.2.
(vi) Release or limit the liability of Borrower or any guarantor
with respect to the Obligations.
No amendment of any provision of this Agreement relating to the Administrative
Agent shall be effective without the written consent of the Administrative
Agent, and no amendment increasing the Commitment of any Lender shall be
effective without the written consent of such Lender.
9.3. PRESERVATION OF RIGHTS. No delay or omission of the Lenders or the
Administrative Agent to exercise any right under the Loan Documents shall impair
such right or be construed to be a waiver of any Default or an acquiescence
therein, and the making of a Loan notwithstanding the existence of a Default or
the inability of the Borrower to satisfy the conditions precedent to such Loan
shall not constitute any waiver or acquiescence. Any single or partial exercise
of any such right shall not preclude other or further exercise thereof or the
exercise of any other right, and no waiver, amendment or other variation of the
terms, conditions or provisions of the Loan Documents whatsoever shall be valid
unless in writing
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signed by the Lenders required pursuant to SECTION 9.2, and then only to the
extent in such writing specifically set forth. All remedies contained in the
Loan Documents or by law afforded shall be cumulative and all shall be available
to the Administrative Agent and the Lenders until the Obligations have been paid
in full.
ARTICLE X
GENERAL PROVISIONS
10.1. SURVIVAL OF REPRESENTATIONS. All representations and warranties of
the Borrower contained in this Agreement shall survive delivery of the Notes and
the making of the Loans herein contemplated.
10.2. GOVERNMENTAL REGULATION. Anything contained in this Agreement to
the contrary notwithstanding, no Lender shall be obligated to extend credit to
the Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
10.3. TAXES. Any taxes (excluding federal, state and local income or
franchise or other similar taxes on the overall net income of any Lender) or
other similar assessments or charges made by any governmental or revenue
authority in respect of the Loan Documents shall be paid by the Borrower,
together with interest and penalties, if any.
10.4. HEADINGS. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
10.5. ENTIRE AGREEMENT. The Loan Documents embody the entire agreement
and understanding among the Borrower, the Administrative Agent, the
Documentation Agent and the Lenders and supersede all prior commitments,
agreements and understandings among the Borrower, the Administrative Agent, the
Documentation Agent and the Lenders relating to the subject matter thereof,
except for the agreement of the Borrower to pay certain fees to the
Administrative Agent and the Documentation Agent and the agreement of the
Administrative Agent to pay certain fees to the Lenders.
10.6. SEVERAL OBLIGATIONS; BENEFITS OF THIS AGREEMENT. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other (except to the extent to which the
Administrative Agent is authorized to act as such). The failure of any Lender
to perform any of its obligations hereunder shall not relieve any other Lender
from any of its obligations hereunder. This Agreement shall not be construed so
as to confer any right or benefit upon any Person other than the parties to this
Agreement and their respective successors and assigns.
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10.7. EXPENSES; INDEMNIFICATION. The Borrower shall reimburse the
Arrangers and Administrative Agent on demand for any costs, and reasonable
out-of-pocket expenses (including, without limitation, all reasonable fees for
consultants and reasonable fees and expenses for attorneys for the Arrangers and
Administrative Agent (without duplication), which attorneys may be employees of
the Arrangers or Administrative Agent) paid or incurred by the Arrangers
(whether in their capacity as arrangers, or, in the case of First Chicago, in
its capacity as Administrative Agent) in connection with the preparation,
negotiation, execution, delivery, amendment or modification of the Loan
Documents. The Borrower also agrees to reimburse the Arrangers, Administrative
Agent, and the Lenders for any costs, internal charges and reasonable
out-of-pocket expenses (including, without limitation, all reasonable fees and
expenses for attorneys for the Arrangers, Administrative Agent and the Lenders,
which attorneys may be employees of the Arrangers or the Lenders) paid or
incurred by the Arrangers or Administrative Agent (whether in their capacity as
arrangers, or, in the case of First Chicago, in its capacity as Administrative
Agent) or any Lender in connection with the collection and enforcement of the
Loan Documents (including, without limitation, any workout). The Borrower
further agrees to indemnify the Administrative Agent, the Arrangers and each
Lender and their directors, officers and employees against all losses, claims,
damages, penalties, judgments, liabilities and reasonable expenses (including,
without limitation, all expenses of litigation or preparation therefor whether
or not such entity is a party thereto) which any of them may pay or incur
arising out of or relating to this Agreement, the other Loan Documents, the
Properties, the transactions contemplated hereby or the direct or indirect
application or proposed application of the proceeds of any Loan hereunder, other
than liability arising from the gross negligence or wilful misconduct of the
party being indemnified. The obligations of the Borrower under this SECTION
10.7 shall survive for two years after the termination of this Agreement.
10.8. NUMBERS OF DOCUMENTS. All statements, notices, closing documents,
and requests hereunder shall be furnished to the Administrative Agent with
sufficient counterparts so that the Administrative Agent may furnish one to each
of the Lenders.
10.9. ACCOUNTING. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with GAAP, except that any
calculation or determination which is to be made on a consolidated basis shall
be made for the Borrower and all its Subsidiaries.
10.10. SEVERABILITY OF PROVISIONS. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
10.11. NONLIABILITY OF LENDERS, ARRANGERS, ADMINISTRATIVE AGENT AND
DOCUMENTATION AGENT. The relationship between the Borrower, on the one hand,
and the Lenders, the Arrangers, the Administrative Agent, and the Documentation
Agent on the other, shall be
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solely that of borrower and lender. Neither the Administrative Agent, the
Documentation Agent, the Arrangers nor any Lender shall have any fiduciary
responsibilities to the Borrower. Neither the Administrative Agent, the
Documentation Agent, the Arrangers nor any Lender undertakes any responsibility
to the Borrower to review or inform the Borrower of any matter in connection
with any phase of the Borrower's business or operations. Neither the Arrangers
nor the Documentation Agent shall have any responsibilities to the Borrower or
Lenders under this Agreement except to the extent, if any, expressly for herein.
10.12. PUBLICITY. Each Lender and each Arranger shall have the right to
do a tombstone publicizing the transaction contemplated hereby upon the consent
of the Borrower which shall not be unreasonably withheld.
10.13. BROKERS. Borrower, Administrative Agent and Documentation Agent
each hereby represent and warrant that no brokers or finders were used in
connection with procuring the financing contemplated hereby and Borrower hereby
agrees to indemnify and save the Administrative Agent, the Documentation 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
the Administrative Agent, the Documentation Agent or any Lender as a result of
any claim or assertion by any party claiming by, through or under Borrower, its
Subsidiaries or any Investment Affiliate that it is entitled to compensation in
connection with the financing contemplated hereby. Administrative Agent hereby
agrees to indemnify and save Borrower harmless from and against any and all
liabilities, losses, costs and expenses (including attorneys' fees or court
costs) suffered or incurred by Borrower as a result of any claim or assertion by
any party claiming by, through or under Administrative Agent that it is entitled
to compensation in connection with the financing contemplated hereby.
Documentation Agent hereby agrees to indemnify and save Borrower harmless from
and against any and all liabilities, losses, costs and expenses (including
attorneys' fees or court costs) suffered or incurred by Borrower as a result of
any claim or assertion by any party claiming by, through or under Documentation
Agent that it is entitled to compensation in connection with the financing
contemplated hereby.
10.14. CONFIDENTIALITY. With respect to the financial statements and
other information delivered pursuant to SECTION 7.1, and any other information
obtained by any Lender or any assignee of any Lender pursuant to this SECTION
10.14 or otherwise, each Lender and each assignee of any Lender agree that, to
the extent that such information therein contained has not theretofore otherwise
been disclosed in such a manner as to render such information no longer
confidential, such Lender and such assignee will employ reasonable procedures
reasonably designed to maintain the confidential nature of the information
therein contained; provided that anything herein contained to the contrary
notwithstanding, any Lender or its assignee may disclose or disseminate such
information to: (a) its employees, agents, attorneys and accountants who would
ordinarily have access to such information in the normal course of the
performance of their duties; (b) such third parties as such Lender may deem
reasonably necessary in connection with or in response to (i) compliance with
any law, ordinance or governmental order, regulation, rule, policy, subpoena,
investigation, regulatory authority
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request or requests, or (ii) any order, decree, judgment, 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 or industry agency, commission,
authority, board or similar entity or in connection with any proceeding, case or
matter pending (or on its face purported to be pending) before any court,
tribunal, arbitration board or any governmental agency, commission, authority,
board or similar entity; and (c) any prospective assignee of or Participant in
such Lender's interest, provided such prospective assignee or Participant agrees
in writing to be bound by these provisions.
10.15. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS, BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
10.16. CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY SUBMITS
TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE
COURT SITTING IN CHICAGO IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO ANY OF THE LOAN DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT ALL
CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN
ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE
AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT
OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE
RIGHT OF THE ADMINISTRATIVE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE
BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY
THE BORROWER AGAINST THE ADMINISTRATIVE AGENT OR ANY LENDER OR ANY AFFILIATE OF
THE ADMINISTRATIVE AGENT OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN
DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN CHICAGO, ILLINOIS.
10.17. WAIVER OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT AND
EACH LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR
OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN
DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
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ARTICLE XI
THE ADMINISTRATIVE AGENT AND AGREEMENTS AMONG LENDERS
11.1. APPOINTMENT. Subject to the provisions of SECTION 11.11, The
First National Bank of Chicago is hereby appointed Administrative Agent
hereunder and under each other Loan Document, and each of the Lenders
irrevocably authorizes the Administrative Agent to act as the agent of such
Lender. The Administrative Agent agrees to act as such upon the express
conditions contained in this ARTICLE XI. The Administrative Agent shall not
have a fiduciary relationship in respect of the Borrower or any Lender by reason
of this Agreement. The Administrative Agent agrees to administer this Facility
in the same manner as it administers similar facilities for its own account.
11.2. POWERS. The Administrative Agent shall have and may exercise
such powers under the Loan Documents as are specifically delegated to the
Administrative Agent by the terms of each thereof, together with such powers as
are reasonably incidental thereto. The Administrative Agent shall have no
implied duties to the Lenders, or any obligation to the Lenders to take any
action thereunder except any action specifically provided by the Loan Documents
to be taken by the Administrative Agent.
11.3. GENERAL IMMUNITY. Neither the Administrative Agent nor any of
its directors, officers, agents or employees shall be liable to the Borrower,
the Lenders or any Lender for any action taken or omitted to be taken by it or
them hereunder or under any other Loan Document or in connection herewith or
therewith except for its or their own gross negligence or willful misconduct and
except for liability of Administrative Agent for breach of an express agreement
made by the Administrative Agent herein to take or not take actions based on the
approval or direction of a requisite number of Lenders.
11.4. NO RESPONSIBILITY FOR LOANS, RECITALS, ETC. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be responsible for or have any duty to ascertain, inquire into, or verify
(i) any statement, warranty or representation made in connection with any Loan
Document or any borrowing hereunder; (ii) the performance or observance of any
of the covenants or agreements of any obligor under any Loan Document,
including, without limitation, any agreement by an obligor to furnish
information directly to each Lender; (iii) the satisfaction of any condition
specified in ARTICLE V, except receipt of items required to be delivered to the
Administrative Agent; (iv) the validity, effectiveness or genuineness of any
Loan Document or any other instrument or writing furnished in connection
therewith (provided that Administrative Agent shall be obligated to furnish
copies of the Loan Documents to the Lenders); or (v) the value, sufficiency,
creation, perfection or priority of any interest in any collateral security.
The Administrative Agent shall have no duty to disclose to the Lenders
information that is not required to be furnished by the Borrower to the
Administrative Agent at such time, but is voluntarily furnished by the Borrower
to the Administrative Agent in its individual capacity.
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11.5. ACTION ON INSTRUCTIONS OF LENDERS. The Administrative Agent
shall in all cases be fully protected in acting, or in refraining from acting,
hereunder and under any other Loan Document in accordance with written
instructions signed by the Required Lenders unless such action or inaction
requires the consent of all the Lenders or an individual Lender not included in
the direction of the Required Lenders pursuant to this Agreement, and such
instructions and any action taken or failure to act pursuant thereto shall be
binding on all of the Lenders and on all holders of Notes. The Administrative
Agent shall be fully justified in failing or refusing to take any action
hereunder and under any other Loan Document unless it shall first be indemnified
to its satisfaction by the Lenders pro rata against any and all liability, cost
and expense that it may incur by reason of taking or continuing to take any such
action.
11.6. EMPLOYMENT OF ADMINISTRATIVE AGENTS AND COUNSEL. The
Administrative Agent may execute any of its duties as Administrative Agent
hereunder and under any other Loan Document by or through employees, agents, and
attorneys-in-fact and so long as it exercises reasonable care in the selection
of such parties, the Administrative Agent shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such parties. The Administrative
Agent shall be entitled to advice of counsel concerning all matters pertaining
to the agency hereby created and its duties hereunder and under any other Loan
Document.
11.7. RELIANCE ON DOCUMENTS; COUNSEL. The Administrative Agent shall
be entitled to rely upon any Note, notice, consent, certificate, affidavit,
letter, telegram, statement, paper or document believed by it to be genuine and
correct and to have been signed or sent by the proper person or persons, and, in
respect to legal matters, upon the opinion of counsel selected by the
Administrative Agent, which counsel may be employees of the Administrative
Agent.
11.8. ADMINISTRATIVE AGENT'S REIMBURSEMENT AND INDEMNIFICATION. The
Lenders agree to reimburse and indemnify the Administrative Agent (in its
capacity as Administrative Agent but not as Lender) ratably in proportion to
their respective Commitments (i) for any amounts not reimbursed by the Borrower
for which the Administrative Agent is entitled to reimbursement by the Borrower
under the Loan Documents including reasonable out-of-pocket expenses in
connection with the preparation, execution, delivery of the Loan Documents, (ii)
for any other reasonable out-of-pocket expenses incurred by the Administrative
Agent on behalf of the Lenders, in connection with the administration and
enforcement of the Loan Documents and (iii) for any liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Administrative Agent in any way relating to
or arising out of the Loan Documents or any other document delivered in
connection therewith or the transactions contemplated thereby, or the
enforcement of any of the terms thereof or of any such other documents, PROVIDED
that no Lender shall be liable for any of the foregoing to the extent they arise
from the gross negligence or willful misconduct of the Administrative Agent or
an action relating to a dispute which is solely between the Administrative Agent
and one or more Lenders in which the other Lender prevails, or an action taken
or not taken by Administrative Agent contrary to the express requirements
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contained herein pertaining to the requisite number of Lenders required to
approve or direct certain actions. The obligations of the Lenders under this
SECTION 11.8 shall survive payment of the Obligations and termination of this
Agreement.
11.9. RIGHTS AS A LENDER.
(a) In the event the Administrative Agent is a Lender, the
Administrative Agent shall have the same rights and powers and the same duties
and obligations hereunder and under any other Loan Document as any Lender and
may exercise the same as though it were not the Administrative Agent, and the
term "LENDER" or "LENDERS" shall, at any time when the Administrative Agent is a
Lender, unless the context otherwise indicates, include the Administrative Agent
in its individual capacity. The Administrative Agent and any Lender may accept
deposits from, lend money to, and generally engage in any kind of trust, debt,
equity or other transaction, in addition to those contemplated by this Agreement
or any other Loan Document, with the Borrower or any of its Subsidiaries in
which the Borrower or such Subsidiary is not restricted hereby from engaging
with any other Person.
(b) In the event the Documentation Agent is a Lender, the
Documentation Agent shall have the same rights and powers and the same duties
and obligations hereunder and under any other Loan Document as any Lender and
may exercise the same as though it were not the Documentation Agent, and the
term "LENDER" or "LENDERS" shall, at any time when the Documentation Agent is a
Lender, unless the context otherwise indicates, include the Documentation Agent
in its individual capacity. The Documentation Agent may accept deposits from,
lend money to, and generally engage in any kind of trust, debt, equity or other
transaction, in addition to those contemplated by this Agreement or any other
Loan Document, with the Borrower or any of its Subsidiaries in which the
Borrower or such Subsidiary is not restricted hereby from engaging with any
other Person.
11.10. LENDER CREDIT DECISION. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent, the
Documentation Agent or any other Lender and based on the financial statements
prepared by the Borrower and such other documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this
Agreement and the other Loan Documents. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent, the
Documentation Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement and the
other Loan Documents.
11.11. SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may
resign at any time by giving written notice thereof to the Lenders and the
Borrower, such resignation in either case to be effective upon the appointment
of a successor Administrative Agent or, if no successor Administrative Agent has
been appointed, sixty days after the retiring Administrative Agent gives notice
of its intention to resign. Upon any such resignation, the Required Lenders
shall have the right to appoint upon the confirmation of the Borrower if such
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successor is not a Lender, on behalf of the Borrower and the Lenders, a
successor Administrative Agent. If no successor Administrative Agent shall have
been so appointed by the Required Lenders within forty-five days after the
resigning Administrative Agent's giving notice of its intention to resign, then
the resigning Administrative Agent may appoint, on behalf of the Borrower and
the Lenders, a successor Administrative Agent upon the confirmation of the
Borrower (if required). If the Administrative Agent has resigned and no
successor Administrative Agent has been appointed and confirmed (if required)
within 60 days, the Lenders shall perform all the duties of the Administrative
Agent hereunder and the Borrower shall make all payments in respect of the
Obligations to the applicable Lender and for all other purposes shall deal
directly with the Lenders. No successor Administrative Agent shall be deemed to
be appointed hereunder until such successor Administrative Agent has accepted
the appointment. Any such successor Administrative Agent shall be either a
Lender or a commercial bank (or a subsidiary thereof) having capital and
retained earnings of at least $500,000,000 that is generally in the business of
making loans comparable to the Loans made under this Facility, except that if
the successor Administrative Agent is a subsidiary of a bank, such capital and
retained earnings requirement shall apply only to the parent bank. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the resigning or removed Administrative Agent. Upon the effectiveness of the
resignation of the Administrative Agent, the resigning Administrative Agent and
the successor Administrative Agent shall pro rate any agency fees, and the
resigning Administrative Agent shall be discharged from its duties and
obligations hereunder and under the Loan Documents. After the effectiveness of
the resignation of an Administrative Agent, the provisions of this ARTICLE XI
shall continue in effect for the benefit of such Administrative Agent in respect
of any actions taken or omitted to be taken by it while it was acting as the
Administrative Agent hereunder and under the other Loan Documents.
11.12. NOTICE OF DEFAULTS. If a Lender becomes aware of a Default or
Unmatured Default, such Lender shall notify the Administrative Agent of such
fact. Upon receipt of such notice that a Default or Unmatured Default has
occurred, the Administrative Agent shall notify each of the Lenders of such
fact.
11.13. REQUESTS FOR APPROVAL. If the Administrative Agent requests in
writing the consent or approval of a Lender, such Lender shall respond and
either approve or disapprove definitively in writing to the Administrative Agent
within ten Business Days (or sooner if such notice specifies a shorter period,
but in no event less than five Business Days for responses based on
Administrative Agent's good faith determination that circumstances exist
warranting its request for an earlier response) after such written request from
the Administrative Agent. If the Lender does not so respond, that Lender shall
be deemed to have approved the request. Upon request, the Administrative Agent
shall notify the Lenders which Lenders, if any, failed to respond to a request
for approval.
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11.14. COPIES OF DOCUMENTS. Administrative Agent shall promptly deliver
to each of the Lenders copies of all notices of default and other formal notices
sent or received and according to Section 14 of this agreement. Administrative
Agent shall deliver to Lenders within 15 Business Days following receipt, copies
of all financial statements, certificates and notices received regarding the
Borrower's unsecured debt rating except to the extent such items are required to
be furnished directly to the Lenders by Borrower hereunder. Within fifteen
Business Days after a request by a Lender to the Administrative Agent for other
documents furnished to the Administrative Agent by the Borrower, the
Administrative Agent shall provide copies of such documents to such Lender
except where this Agreement obligates Administrative Agent to provide copies in
a shorter period of time.
11.15. DEFAULTING LENDERS. At such time as a Lender becomes a
Defaulting Lender, such Defaulting Lender's right to vote on matters which are
subject to the consent or approval of the Required Lenders, each affected Lender
or all Lenders shall be immediately suspended until such time as the Lender is
no longer a Defaulting Lender. If a Defaulting Lender has failed to fund its
Percentage of any Advance and until such time as such Defaulting Lender
subsequently funds its Percentage of such Advance, all Obligations owing to such
Defaulting Lender hereunder shall be subordinated in right of payment, as
provided in the following sentence, to the prior payment in full of all
principal of, interest on and fees relating to the Loans funded by the other
Lenders in connection with any such Advance in which the Defaulting Lender has
not funded its Percentage (such principal, interest and fees being referred to
as "SENIOR LOANS" for the purposes of this section). All amounts paid by the
Borrower and otherwise due to be applied to the Obligations owing to such
Defaulting Lender pursuant to the terms hereof shall be distributed by the
Administrative Agent to the other Lenders in accordance with their respective
Percentages (recalculated for the purposes hereof to exclude the Defaulting
Lender) until all Senior Loans have been paid in full. At that point, the
"Defaulting Lender" shall no longer be deemed a Defaulting Lender. After the
Senior Loans have been paid in full equitable adjustments will be made in
connection with future payments by the Borrower to the extent a portion of the
Senior Loans had been repaid with amounts that otherwise would have been
distributed to a Defaulting Lender but for the operation of this SECTION 11.15.
This provision governs only the relationship among the Administrative Agent,
each Defaulting Lender and the other Lenders; nothing hereunder shall limit the
obligation of the Borrower to repay all Loans in accordance with the terms of
this Agreement. The provisions of this section shall apply and be effective
regardless of whether a Default occurs and is continuing, and notwithstanding
(i) any other provision of this Agreement to the contrary, (ii) any instruction
of the Borrower as to its desired application of payments or (iii) the
suspension of such Defaulting Lender's right to vote on matters which are
subject to the consent or approval of the Required Lenders or all Lenders.
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ARTICLE XII
RATABLE PAYMENTS
12.1. Intentionally Deleted.
12.2. RATABLE PAYMENTS. If any Lender has payment made to it upon its
Loans (other than payments received pursuant to SECTIONS 4.1, 4.2 or 4.4 and
payments received in connection with Competitive Bid Loans) in a greater
proportion than that received by any other Lender, such Lender agrees, promptly
upon demand, to purchase a portion of the Loans held by the other Lenders so
that after such purchase each Lender will hold its ratable proportion of Loans.
If any Lender, whether in connection with setoff or amounts which might be
subject to setoff or otherwise, receives collateral or other protection for its
Obligations or such amounts which may be subject to setoff, such Lender agrees,
promptly upon demand, to take such action necessary such that all Lenders share
in the benefits of such collateral ratably in proportion to their Loans. In
case any such payment is disturbed by legal process, or otherwise, appropriate
further adjustments shall be made.
ARTICLE XIII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
13.1. SUCCESSORS AND ASSIGNS. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower and the
Lenders and their successors and permitted assigns, except that (i) the Borrower
shall not have the right to assign its rights or obligations under the Loan
Documents and (ii) any assignment by any Lender must be made in compliance with
SECTION 13.3. Notwithstanding clause (ii) of this SECTION 13.1, any Lender may
at any time, without the consent of the Borrower assign all or any portion of
its rights under this Agreement and its Notes to a Federal Reserve Bank;
provided, however, that no such assignment shall release the transferor Lender
from its obligations hereunder. The Administrative Agent may treat the payee of
any Note as the owner thereof for all purposes hereof unless and until such
payee complies with SECTION 13.3 in the case of an assignment thereof or, in the
case of any other transfer, a written notice of the transfer is filed with the
Administrative Agent. Any assignee or transferee of a Note agrees by acceptance
thereof to be bound by all the terms and provisions of the Loan Documents. Any
request, authority or consent of any Person, who at the time of making such
request or giving such authority or consent is the holder of any Note, shall be
conclusive and binding on any subsequent holder, transferee or assignee of such
Note or of any Note or Notes issued in exchange therefor.
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13.2. PARTICIPATIONS.
13.2.1. PERMITTED PARTICIPANTS; EFFECT. Any Lender, in the ordinary
course of its business and in accordance with applicable law, at any time,
may sell participating interests in any Loan owing to such Lender, any Note
held by such Lender, any Commitment of such Lender or any other interest of
such Lender under the Loan Documents. Any Person to whom such a
participating interest is sold is a "PARTICIPANT". In the event of any
such sale by a Lender of participating interests to a Participant, such
Lender's obligations under the Loan Documents shall remain unchanged, such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, such Lender shall remain the holder of any
such Note for all purposes under the Loan Documents, all amounts payable by
the Borrower under this Agreement shall be determined as if such Lender had
not sold such participating interests, and the Borrower and the
Administrative Agent shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under the
Loan Documents.
13.2.2. VOTING RIGHTS. Each Lender shall retain the sole right to
approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Loan Documents other than
any amendment, modification or waiver with respect to any Loan or
Commitment in which such Participant has an interest which forgives
principal, interest or fees or reduces the interest rate or fees payable
with respect to any such Loan or Commitment or postpones any date fixed for
any regularly-scheduled payment of principal of, or interest or fees on,
any such Loan or Commitment or releases any guarantor of any such Loan or
releases any substantial portion of collateral, if any, securing such Loan.
13.3. ASSIGNMENTS.
13.3.1. PERMITTED ASSIGNMENTS. Any Lender, in the ordinary course of
its business and in accordance with applicable law, at any time, may assign
all or any portion (greater than or equal to $10,000,000 per assignee) of
its rights and obligations under the Loan Documents, provided that unless
such Lender sells its entire interest, it must maintain a minimum
Commitment of $10,000,000 (exclusive of any portion of its Commitment in
which it has sold a participation interest other than participations where
the Lender, Documentation Agent or Administrative Agent retains full voting
control). Notwithstanding the foregoing provision, any assignment by a
Lender to another Lender in the Facility or an Affiliate thereof or an
Affiliate of the assigning Lender shall not be subject to either the
$10,000,000 minimum assignment amount or the requirement set forth below
regarding Borrower's consent or the fee in Section 13.3.2(ii). If the
Aggregate Commitment is reduced the references to $10,000,000 contained in
this Section 13.3.1 shall be reduced proportionately. Any Person to whom
such rights and obligations are assigned is a "PURCHASER". Such assignment
shall be substantially in the form of EXHIBIT D hereto or in such other
form as may be agreed to
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by the parties thereto (the "Assignment"). So long as no Default has
occurred and is continuing, Borrower's consent shall be required for any
assignment provided that if such assignment is to an entity that is a
"Qualified Lender", such consent shall not be unreasonably denied or
delayed. "QUALIFIED LENDER" shall mean an institution with assets over
$5,000,000,000.00 that is generally in the business of making loans
comparable to the Loans made under this Facility and that maintains an
office in the United States. Any Lender which is an Arranger,
Documentation Agent, or Administrative Agent may make an assignment only if
it first resigns its status as Arranger, Documentation Agent, or
Administrative Agent as the case may be or if it obtains the consent of
Borrower and any Lender which after such assignment would have a Percentage
greater than the new Percentage of the Lender making the assignment.
Notwithstanding any other provision set forth in this Agreement, any Lender
may at any time create a security interest in all or any portion of its
rights under this Agreement (including, without limitation, amounts owing
to it in favor of any Federal Reserve Bank in accordance with Regulation A
of the Board of Governors of the Federal Reserve System), provided that no
such security interest or the exercise by the secured party of any of its
rights thereunder shall release Lender from its funding obligations
hereunder and such Lender shall retain all voting rights.
13.3.2. EFFECT; EFFECTIVE DATE. Upon (i) delivery to the
Administrative Agent and the Borrower of a notice of assignment,
substantially in the form attached as EXHIBIT I to EXHIBIT D hereto (a
"NOTICE OF ASSIGNMENT"), together with any consents required by SECTION
13.3.1, and (ii) payment of a $3,000 fee to the Administrative Agent for
processing such assignment, such assignment shall become effective on the
effective date specified in such Notice of Assignment. The Notice of
Assignment shall contain a representation by the Purchaser to the effect
that none of the consideration used to make the purchase of the Commitment
and Loans under the applicable assignment agreement are "plan assets" as
defined under ERISA and that the rights and interests of the Purchaser in
and under the Loan Documents will not be "plan assets" under ERISA. On and
after the effective date of such assignment, such Purchaser shall for all
purposes be a Lender party to this Agreement and any other Loan Document
executed by the Lenders and shall have all the rights and obligations of a
Lender under the Loan Documents, to the same extent as if it were an
original party hereto, and no further consent or action by the Borrower,
the Lenders or the Administrative Agent shall be required to release the
transferor Lender with respect to the percentage of the Aggregate
Commitment and Loans assigned to such Purchaser. Upon the consummation of
any assignment to a Purchaser pursuant to this SECTION 13.3.2, the
transferor Lender, the Administrative Agent and the Borrower shall make
appropriate arrangements so that replacement Notes are issued to such
transferor Lender, if applicable, and new Notes or, as appropriate,
replacement Notes, are issued to such Purchaser, in each case in principal
amounts reflecting their Commitment, as adjusted pursuant to such
assignment.
-84-
<PAGE>
13.4. DESIGNATION OF LENDER TO MAKE COMPETITIVE LOANS. Any Lender
(each a "Designating Lender") may at any time designate one or more Designated
Lenders to fund Competitive Bid Loans which the Designating Lender is required
to fund subject to the terms of this Section 13.4 and the provisions in Section
13.3 shall not apply to such designation. No Lender shall be entitled to make
more than two such designations. The parties to each such designation shall
execute and deliver to the Administrative Agent, for its acceptance, a
Designation Agreement in the form of Exhibit I. Upon its receipt of an
appropriately completed Designation Agreement executed by a Designating Lender
and a designee representing that it is a Designated Lender, the Administrative
Agent will accept such Designation Agreement and give prompt notice thereof to
the Borrower, whereupon, from and after the effective date specified in the
Designation Agreement, the Designated Lender shall become a party to this
Agreement with a right to make Competitive Bid Loans on behalf of its
Designating Lender pursuant to Section 2.14 after the Borrower has accepted a
Competitive Bid (or a portion thereof) of the Designating Lender. Each
Designating Lender shall serve as the agent for the Designated Lender and shall
on behalf of the Designated Lender give and receive all communications and
notices and take all actions hereunder, including without limitation votes,
approvals, waivers, consents and amendments under or relating to this Agreement
or the other Loan Documents. Any such notice, communications, vote approval,
waiver, consent or amendment shall be signed by the Designating Lender as agent
for the Designated Lender and shall not be signed by the Designated Lender. The
Borrower, the Administrative Agent and the Lenders may rely thereon without any
requirement that the Designated Lender sign or acknowledge the same, and without
any specific designation that the Designating Lender is signing in an agency
capacity. This SECTION 13.4 shall survive the termination of this Agreement.
13.5. DISSEMINATION OF INFORMATION. The Borrower authorizes each
Lender to disclose to any Participant or Purchaser or any other Person acquiring
an interest in the Loan Documents by operation of law (each a "TRANSFEREE") and
any prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Borrower and its Subsidiaries, provided
that such Transferees agree to maintain the confidentiality of any information
that is confidential in the manner set forth in SECTION 10.14.
13.6. TAX TREATMENT. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the transferor
Lender shall cause such Transferee, concurrently with the effectiveness of such
transfer, to comply with the provisions of SECTION 2.17.
13.7. POSSESSION OF LOAN DOCUMENTS AND REGISTER. The Administrative
Agent shall keep and maintain complete and accurate files and records of all
matters pertaining to the Loan. Upon reasonable prior notice to the
Administrative Agent by any Lender, the Administrative Agent will make available
to such Lender and their representatives and agents, the files and records
relating to the Facility for inspection and copying during normal business
hours. The Administrative Agent shall also maintain at its address specified
pursuant to Article XIV, a copy of each Assignment delivered to and accepted by
it and a listing of the
-85-
<PAGE>
names and addresses of the Lenders, the amount of each Lender's Commitment and
Percentage (the "Register"). The entries in the Register shall be conclusive
and binding for all purposes, absent manifest error, and Borrower,
Administrative Agent, and the Lenders may treat each person or entity whose name
is recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection and copying by
Borrower or any Lender during normal business hours upon reasonable prior notice
to the Administrative Agent.
ARTICLE XIV
NOTICES
14.1. GIVING NOTICE. Except as otherwise permitted by SECTION 2.16
with respect to borrowing notices, all notices and other communications provided
to any party hereto under this Agreement or any other Loan Document shall be in
writing or by telex or by facsimile and addressed or delivered to such party at
its address set forth below its signature hereto or at such other address as may
be designated by such party in a notice to the other parties. Any notice, if
mailed and properly addressed with postage prepaid, shall be deemed given when
received; any notice, if transmitted by telex or facsimile, shall be deemed
given when transmitted (answerback confirmed in the case of telexes).
14.2. CHANGE OF ADDRESS. The Borrower, the Administrative Agent and
any Lender may each change the address for service of notice upon it by a notice
in writing to the other parties hereto.
14.3. ACCOUNTS. The Administrative Agent shall deliver to each Lender
and Borrower, and each Lender shall deliver to Administrative Agent wiring
instructions containing account information for purposes of the payment of sums
due under this Agreement.
ARTICLE XV
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one agreement, and any of the parties hereto may
execute this
-86-
<PAGE>
Agreement by signing any such counterpart. This Agreement shall be effective
when it has been executed by the Borrower, the Administrative Agent and the
Lenders and each party has notified the Administrative Agent by telex or
telephone, that it has taken such action.
IN WITNESS WHEREOF, the Borrower, the Lenders and the Administrative Agent
have executed this Agreement as of the date first above written.
CENTERPOINT PROPERTIES TRUST, a Maryland
real estate investment trust
By:____________________________________
Print Name:____________________________
Title:_________________________________
401 N. Michigan Avenue, Suite 3000
Chicago, IL 60611
Attention: Paul S. Fisher
Telephone: (312) 346-5600
Facsimile: (312) 456-7696
with a copy to:
Ungaretti & Harris
3500 Three First National Plaza
Chicago, IL 60602
Attention: Richard A. Ungaretti
Telephone: (312) 977-4400
Facsimile: (312) 977-4405
-87-
<PAGE>
COMMITMENT:
- ----------
$30,000,000 THE FIRST NATIONAL BANK OF CHICAGO,
- ----------- Individually and as Administrative Agent
PERCENTAGE:
- ---------- By:________________________________________
20.0000000000% Print Name:________________________________
- --------------
Title:_____________________________________
One First National Plaza
Chicago, Illinois 60670
Attention: Kevin L. Gillen
Suite 0151, 14th Floor
Telephone: (312) 732-1486
Facsimile: (312) 732-1117
COMMITMENT: LEHMAN BROTHERS HOLDINGS INC., D/B/A Lehman
- ---------- Capital, A Division of Lehman Brothers
Holdings Inc.,
$10,000,000 Individually and as Documentation Agent
- -----------
By:________________________________________
PERCENTAGE:
- ---------- Print Name:________________________________
6.6666666667% Title:_____________________________________
- -------------
3 World Financial Center
New York, New York 10285-1200
Attention: David Juge, Floor 8
Telephone: (212) 526-0219
Facsimile: (212) 526-7423
-88-
<PAGE>
with a copy to:
3 World Financial Center
New York, New York 10285-1200
Attention: Mr. Frank Gilhool, Floor 9
Telephone: (212) 526-6970
Facsimile: (212) 528-8986
With a copy to:
Hatfield Philips Inc.
245 Peachtree Center Avenue
Marquis One Tower, Suite 2701
Atlanta, Georgia 30303
Attention: Mr. Greg Winchester
Telephone: (404) 420-5600
Facsimile: (404) 420-5610
COMMITMENT: NATIONSBANK, N.A.
- ----------
$25,000,000
- ----------- By: ______________________________________
Name: Donna Friedel
PERCENTAGE: Title: Senior Vice President
- ----------
16.6666666667% Notice Address:
- --------------
Nationsbank Plaza
600 Peachtree, 6th Floor
Atlanta, Georgia 30308
Attention: Donna Friedel
Telephone: (404) 607-4107
Facsimile: (404) 607-4145
-89-
<PAGE>
COMMITMENT: BANK OF AMERICA NATIONAL TRUST AND
- ---------- SAVINGS ASSOCIATION
$25,000,000
- ----------- By: ______________________________________
Name: George W. Kirtland, Jr.
PERCENTAGE: Title: Vice President
- ----------
16.6666666667% Notice Address:
- --------------
Bank of America National Trust and
Savings Association
231 S. LaSalle Street, 15th Floor
Chicago, Illinois 60697
Attention: George W. Kirtland, Jr.
Telephone: (312) 828-7230
Facsimile: (312) 974-4970
-90-
<PAGE>
COMMITMENT: LASALLE NATIONAL BANK
- ----------
$10,000,000
- ----------- By: ______________________________________
Name:
PERCENTAGE: Title:
- ----------
6.6666666667% Notice Address:
- -------------
LaSalle National Bank
135 S. LaSalle Street, Suite 1225
Chicago, Illinois 60603
Attention: John Hein
Telephone: (312) 781-8620
Facsimile: (312) 904-6467
COMMITMENT: DRESDNER BANK AG NEW YORK AND
- ---------- GRAND CAYMAN BRANCHES
$20,000,000
- ----------- By: ______________________________________
Name:
PERCENTAGE: Title:
- ----------
13.3333333333% Notice Address:
- --------------
Dresdner Bank AG New York and
Grand Cayman Branches
Attention:
Telephone:
Facsimile:
-91-
<PAGE>
COMMITMENT: FIRST BANK NATIONAL ASSOCIATION
- ----------
$5,000,000
- ---------- By: ______________________________________
Name:
PERCENTAGE: Title:
- ----------
3.3333333333% Notice Address:
- -------------
First Bank National Association
201 W. Wisconsin Avenue
Milwaukee, WI 53259-0911
Attention: Mr. Patrick W. Lawton,
Vice President
Telephone: 414-227-6151
Facsimile: 414-227-5416
COMMITMENT: UNION BANK OF SWITZERLAND, NEW YORK BRANCH
- ----------
$25,000,000
- ----------- By: ______________________________________
Name:
PERCENTAGE: Title:
- ----------
16.6666666667%
- -------------- By: ______________________________________
Name:
Title:
Notice Address:
Union Bank of Switzerland
Real Estate Finance
299 Park Avenue
New York, NY 10071
Attention: Mr. J. Brian Flood, Director
Telephone: 212-821-5644
Facsimile: 212-821-5779
-92-
<PAGE>
EXHIBIT A
PRICING GRID
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Pricing Category 0 1 2 3 4
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
RATINGS: AT LEAST AT LEAST AT LEAST BELOW
A-AND A3 OR BBB+ AND BBB AND BBB- AND EITHER
S&P&MOODY'S ABOVE BAA1 BAA2 BAA3 BBB- OR
BAA3***
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Corporate Base 0 0 0 0 25.0
Rate Margin*
- --------------------------------------------------------------------------------
LIBOR Margin* 65.0 75.0 80.0 100.0 125.0
- --------------------------------------------------------------------------------
Facility Fee 15.0 15.0 20.0 20.0 25.0
- --------------------------------------------------------------------------------
All-in Funded 80.0 90.0 100.0 120.0 150.0
Funded Cost
(Margin + Fee)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
</TABLE>
* = In basis points per annum
*** This rating category shall apply at any time that either S & P has issued a
rating of the Borrower's long term debt of less than BBB-or Moody's has
issued a rating of less than Baa3.
All margins and fees change as and when the rating classification changes. In
the event both rating agencies have issued a rating and the rating agencies are
split on the rating for the Borrower's long-term unsecured debt or this
Facility, the lower rating shall, except as set forth below, be deemed to be the
applicable rating (e.g., if the Borrower's Moody's long-term unsecured debt or
this Facility's rating is Baa1 and its S&P long-term unsecured debt or this
Facility's rating is BBB then the Applicable Margins shall be computed based on
the S&P rating). In the event that Moody's and S&P issue split ratings on the
Borrower's long term unsecured debt, Borrower may obtain a third rating from
Duff & Phelps or Fitch and the higher of the Moody's or S&P rating shall be
deemed applicable until the earlier of (i) 90 days after the date of the
occurrence of such split ratings or (ii) the date of the issuance of the third
rating by Duff & Phelps or Fitch. After 90 days, if a third rating has not been
issued, the lower of the Moody's or S&P rating shall apply. In the event
Moody's and S&P issue different ratings of the Borrower's long term unsecured
debt and the Borrower obtains a third rating which is different from the Moody's
and S&P ratings, the middle rating of the three ratings shall be deemed the
applicable rating. In the event Moody's and S&P issue different ratings on the
Borrower's long term unsecured debt and the Borrower obtains a third rating
which is the equivalent of the Moody's or S&P rating, the third rating
confirming either the Moody's or S&P rating, as the case may be, shall be deemed
to be the applicable rating. In the event either Moody's or S&P has not issued
a rating, the rating from the agency that has issued its rating shall govern,
subject to the provisions contained in the next sentence. In the event that S &
P has not issued a rating within six months of the Closing Date, the rating
shall be deemed to be BBB-.
<PAGE>
The Applicable Margins shall be adjusted effective on the next Business Day
following any change in the Borrower's (or the Facility's if applicable) Moody's
long-term unsecured debt rating and/or S&P's long-term unsecured debt rating, as
the case may be (provided that if Administrative Agent does not receive notice
of a change in rating within forty-five days after it occurs then any reduction
in Applicable Margin shall be effective only when such notice is received). In
the event of a rating agency downgrade, the Borrower will receive a credit for
any incremental borrowing cost should the rating agency(ies) restore the higher
rating within a ninety day period. In the event that either S&P or Moody's
shall discontinue their ratings of the REIT industry or the Borrower's long-term
unsecured debt or this Facility, a mutually agreeable substitute rating agency
shall be selected by the Required Lenders and the Borrower. If the Required
Lenders and the Borrower cannot agree on a substitute rating agency within
forty-five (45) days of such discontinuance, the Applicable Margin to be used
for the calculation of interest on Advances hereunder shall be Pricing Category
4. Lenders acknowledge that the rating for Borrower's unsecured long term debt
may be issued even though Borrower has no outstanding unsecured long term debt.
<PAGE>
EXHIBIT B-1
NOTE
$__________ ____________________
CenterPoint Properties Trust, a Maryland real estate investment trust (the
"BORROWER"), promises to pay to the order of _________________________________
(the "Lender") the lesser of the principal sum of ________________ Dollars or
the aggregate unpaid principal amount of all Loans made by the Lender to the
Borrower pursuant to the Amended and Restated Unsecured Revolving Credit
Agreement hereinafter referred to, in immediately available funds at the main
office of The First National Bank of Chicago in Chicago, Illinois, as
Administrative Agent, together with interest on the unpaid principal amount
hereof at the rates and on the dates set forth in the Agreement. The Borrower
shall pay the remaining unpaid principal of and accrued and unpaid interest on
the Loans in full on the Facility Termination Date.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Loan and the date and amount of each principal
payment hereunder.
This Note is one of the Notes issued pursuant to, and is entitled to the
benefits of, the Amended and Restated Unsecured Revolving Credit Agreement (as
the same may be amended or modified the "Agreement"), dated as of November ____,
1997 among the Borrower, The First National Bank of Chicago, individually and as
Administrative Agent, Lehman Brothers Holdings Inc., individually and as
Document Agent and the other Lenders named therein, to which Agreement reference
is hereby made for a statement of the terms and conditions governing this Note,
including the terms and conditions under which this Note may be prepaid or its
maturity date accelerated. Capitalized terms used herein and not otherwise
defined herein are used with the meanings attributed to them in the Agreement.
If there is an Unmatured Default or Default under the Agreement or any
other Loan Document and Administrative Agent exercises the remedies provided
under the Agreement and/or any of the Loan Documents for the Lenders, then in
addition to all amounts recoverable by the Administrative Agent and the Lenders
under such documents, the Administrative Agent and the Lenders shall be entitled
to receive reasonable attorneys fees and expenses incurred by Administrative
Agent and the Lenders in connection with the exercise of such remedies.
Borrower and all endorsers severally waive presentment, protest and demand,
notice of protest, demand and of dishonor and nonpayment of this Note, and any
and all lack of diligence or delays in collection or enforcement of this Note,
and expressly agree that this Note, or any payment hereunder, may be extended
from time to time, and expressly consent to the release of any party liable for
the obligation secured by this Note, the release of any of the security for this
Note, the acceptance of any other security therefor, or any other indulgence or
forbearance whatsoever, all without notice to any party and without affecting
the liability of the Borrower and any endorsers hereof.
<PAGE>
This Note shall be governed and construed under the internal laws of the
State of Illinois.
BORROWER AND LENDER, BY ITS ACCEPTANCE HEREOF, EACH HEREBY WAIVE ANY RIGHT
TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHT
UNDER THIS PROMISSORY NOTE OR ANY OTHER LOAN DOCUMENT OR RELATING THERETO OR
ARISING FROM THE LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS PROMISSORY
NOTE AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A JUDGE
AND NOT BEFORE A JURY.
CENTERPOINT PROPERTIES TRUST
By:______________________________
- -----
Print Name:______________________
- -----
Title:___________________________
- -----
[NOTES FOR EXISTING LENDERS WILL BE REVISED TO REFLECT THAT THEY AMEND AND
RESTATE EXISTING NOTES.]
<PAGE>
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF CENTERPOINT PROPERTIES CORPORATION
DATED ________________, 199__
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Principal Maturity Maturity
Amount of Interest Principal Unpaid
Date Type of Loan Rate Period Amount Paid Balance
---- ---- --------- ---- ----------- ----------- -------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
EXHIBIT B-2
FORM OF COMPETITIVE BID NOTE
__________, 1997
On or before the last day of each "Interest Period" applicable to a
"Competitive Bid Loan", as defined in that certain Amended and Restated
Unsecured Revolving Credit Agreement dated as of _______________, 1997 (the
"AGREEMENT") between CENTERPOINT PROPERTIES TRUST ("BORROWER") and THE FIRST
NATIONAL BANK OF CHICAGO, a national bank organized under the laws of the United
States of America, individually and as Administrative Agent for the Lenders and
others (as such terms are defined in the Agreement), Borrower promises to pay to
the order of _________________________ (the "Lender"), or its successors and
assigns, the unpaid principal amount of such Competitive Bid Loan made by the
Lender to the Borrower pursuant to SECTION 2.14 of the Agreement, in immediately
available funds at the office of the main Administrative Agent in Chicago,
Illinois, together with interest on the unpaid principal amount hereof at the
rates and on the dates set forth in the Agreement. The Borrower shall pay any
remaining unpaid principal amount of such Competitive Bid Loans and any accrued
and unpaid interest under this Competitive Bid Note ("NOTE") in full on or
before the Facility Termination Date in accordance with the terms of the
Agreement.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date, amount and due date of each Competitive Bid Loan and the date and
amount of each principal payment hereunder.
This Note is issued pursuant to, and is entitled to the security under and
benefits of, the Agreement and the other Loan Documents, to which Agreement and
Loan Documents, as they may be amended from time to time, reference is hereby
made for, INTER ALIA, a statement of the terms and conditions under which this
Note may be prepaid or its maturity date accelerated. Capitalized terms used
herein and not otherwise defined herein are used with the meanings attributed to
them in the Agreement.
If there is an Unmatured Default or Default under the Agreement or any
other Loan Document and Lender exercises its remedies provided under the
Agreement and/or any of the Loan Documents, then in addition to all amounts
recoverable by the Lender under such documents, Lender shall be entitled to
receive reasonable attorneys fees and expenses incurred by Lender in exercising
such remedies.
Borrower and all endorsers severally waive presentment, protest and demand,
notice of protest, demand and of dishonor and nonpayment of this Note (except as
otherwise expressly provided for in the Agreement), and any and all lack of
diligence or delays in collection or enforcement of this Note, and expressly
agree that this Note, or any payment hereunder, may be extended from time to
time, and expressly consent to the release of any party liable for the
obligation secured by this Note, the release
<PAGE>
of any of the security of this Note, the acceptance of any other security
therefor, or any other indulgence or forbearance whatsoever, all without notice
to any party and without affecting the liability of the Borrower and any
endorsers hereof.
This Note shall be governed and construed under the internal laws of the
State of Illinois.
BORROWER AND LENDER, BY ITS ACCEPTANCE HEREOF, EACH HEREBY WAIVE ANY RIGHT
TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHT
UNDER THIS PROMISSORY NOTE OR ANY OTHER LOAN DOCUMENT OR RELATING THERETO OR
ARISING FROM THE LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS NOTE AND
AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY.
CENTERPOINT PROPERTIES TRUST
By:_________________________
- -----
Print Name:_________________
- -----
Title:______________________
- -----
<PAGE>
PAYMENTS OF PRINCIPAL
Unpaid
Principal Notation
Date Balance Made by
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
<PAGE>
EXHIBIT C-1
FORM OF COMPETITIVE BID QUOTE REQUEST
(Section 2.14(b))
To: The First National Bank of Chicago,
as administrative agent (the "Agent")
From: Centerpoint Properties Trust
Re: Amended and Restated Unsecured Revolving Credit Agreement dated as of
_________________, 1997, as amended among the Borrower, the Lenders
from time to time party thereto, The First National Bank of Chicago,
as Arranger, and The First National Bank of Chicago, as Administrative
Agent for the Lenders (as amended, supplemented or otherwise modified
from time to time through the date hereof, the "Agreement")
1. Capitalized terms used herein have the meanings assigned to them in
the Agreement.
2. We hereby give notice pursuant to SECTION 2.14(b) of the Agreement
that we request Competitive Bid Quotes for the following proposed Competitive
Bid Loan(s):
Borrowing Date: _______________, 19___
Principal Amount (1) Interest Period (2)
3. Such Competitive Bid Quotes should offer [a Competitive LIBOR Margin]
[an Absolute Rate].
- ---------------
(1) Amount must be at least $10,000,000 and an integral multiple of $1,000,000.
(2) Up to 180 days, subject to the provisions of the definitions of LIBOR
Interest Period and Absolute Interest Period.
<PAGE>
4. Upon acceptance by the undersigned of any or all of the Competitive
Bid Loans offered by Lenders in response to this request, the undersigned shall
be deemed to affirm as of the Borrowing Date thereof the representations and
warranties made in ARTICLE VI of the Agreement.
CENTERPOINT PROPERTIES TRUST
By:______________________________
Print Name:______________________
Title:___________________________
<PAGE>
EXHIBIT C-2
INVITATION FOR COMPETITIVE BID QUOTES
(Section 2.14(c))
To: Each of the Lenders party to
the Agreement referred to below
Re: Invitation for Competitive Bid Quotes to
CenterPoint Properties Trust
Pursuant to SECTION 2.14(c) of the Amended and Restated Unsecured Revolving
Credit Agreement dated as of ________________, 1997 as amended from time to
time, among the Borrower, the lenders from time to time party thereto, The First
National Bank of Chicago, as Arranger, and the First National Bank of Chicago as
Administrative Agent for the Lenders (as amended, supplemented or otherwise
modified from time to time through the date hereof, the "Agreement"), we are
pleased on behalf of the Borrower to invite you to submit Competitive Bid Quotes
to the Borrower for the following proposed Competitive Bid Loan(s):
Borrowing Date: _______________, 19___
Principal Amount Interest Period
Such Competitive Bid Quotes should offer [a Competitive LIBOR Margin] [an
Absolute Rate]. Your Competitive Bid Quote must comply with SECTION 2.14(c) of
the Agreement and the foregoing. Capitalized terms used herein have the
meanings assigned to them in the Agreement.
Please respond to this invitation by no later than [9:00 A.M.] (Chicago
time) on _______________, 19___.
THE FIRST NATIONAL BANK OF CHICAGO, as
Administrative Agent
By:________________________________________
Title:_____________________________________
<PAGE>
EXHIBIT C-3
COMPETITIVE BID QUOTE
(Section 2.14(d))
_______________, 19___
To: The First National Bank of Chicago,
as Administrative Agent
Re: Competitive Bid Quote to CenterPoint Properties Trust
(the "Borrower")
In response to your invitation on behalf of the Borrower dated
_______________, 19___, we hereby make the following Competitive Bid Quote
pursuant to SECTION 2.14(d) of the Agreement hereinafter referred to and on the
following terms:
1. Quoting Lender:____________________________________________________________
2. Person to contact at Quoting Lender:_______________________________________
3. Borrowing Date:_________________________________________________________(1)
4. We hereby offer to make Competitive Bid Loan(s) in the following principal
amounts, for the following Interest Periods and at the following rates:
- ---------------
(1) As specified in the related Invitation For Competitive Bid Quotes.
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
[Competitive
Principal Interest LIBOR Margin(4)] [Absolute Minimum
Amount(2) Period(3) Rate(5) Amount(6)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
We understand and agree that the offer(s) set forth above, subject to the
satisfaction of the applicable conditions set forth in the Amended and Restated
Unsecured Revolving Credit Agreement dated as of __________, 1997, among the
Borrower, the Lenders from time to time party thereto, and The First National
Bank of Chicago, as Administrative Agent for the Lenders (as amended,
supplemented or otherwise modified from time to time through the date hereof,
the "Agreement"), irrevocably obligates us to make the Competitive Bid Loan(s)
for which any offer(s) are accepted, in whole or in part. Capitalized terms
used herein and not otherwise defined herein shall have their meanings as
defined in the Agreement.
Very truly yours,
[NAME OF LENDER]
By:_______________________________________________
Title:____________________________________________
- ----------------
(2) Principal amount bid for each Interest Period may not exceed the principal
amount requested. Bids must be made for at least $5,000,000 and integral
multiples of $1,000,000.
(3) Up to 180 days, as specified in the related Invitation For Competitive Bid
Quotes.
(4) Competitive LIBOR Margin for the applicable LIBOR Interest Period. Specify
percentage (rounded to the nearest 1/100 of 1%) and specify whether "PLUS" or
"MINUS".]
(5) Specify rate of interest per annum (rounded to the nearest 1/100 of 1%).]
(6) Specify minimum amount, if any, which the Borrower may accept (see
SECTION 2.14(d)(ii)(4)).
<PAGE>
EXHIBIT D
FORM OF OPINION
______________ , 19
The Administrative Agent and
the Lenders who are parties to the
Credit Agreement described below
Gentlemen/Ladies:
We are counsel for CenterPoint Properties Trust (the "Borrower"), and
have represented the Borrower in connection with its execution and delivery
of an Amended and Restated Unsecured Revolving Credit Agreement among the
Borrower, The First National Bank of Chicago, individually and as
Administrative Agent, Lehman Brothers Holdings Inc., individually and as
Documentation Agent, and the Lenders named therein, providing for Advances in
an aggregate principal amount not exceeding $150,000,000 at any one time
outstanding and dated as of _________ (the "Agreement"). All capitalized
terms used in this opinion and not otherwise defined shall have the meanings
attributed to them in the Agreement.
We have examined the Borrower's articles of incorporation, by-laws, and
resolutions, the Loan Documents and such other matters of fact and law which we
deem necessary in order to render this opinion. Based upon the foregoing, it is
our opinion that:
l. The Borrower and each of its Subsidiaries and each Qualifying
Investment Affiliate are either duly incorporated corporations or duly qualified
and formed limited partnerships, limited liability companies, or trusts, validly
existing and in good standing under the laws of their states of incorporation or
formation, and they each have all requisite authority and power to enter into,
and perform the obligations under, the Loan Documents and to conduct business in
each jurisdiction in which the laws of such jurisdiction requires such
qualification.
2. The execution and delivery of the Loan Documents by the Borrower and
the performance by the Borrower of its obligations under the Loan Documents have
been duly authorized by all necessary corporate action and/or proceedings on the
part of the Borrower and will not:
(a) require any consent of the Borrower's shareholders;
(b) violate any law, rule, regulation, order, writ, judgment,
injunction, decree or award binding on the Borrower or any of its
Subsidiaries or the Borrower's or any Subsidiary's articles of
incorporation, by-laws, certificate of limited partnership, partnership
agreement, declaration of trust, or any indenture, instrument or agreement
binding upon the Borrower or any of its Subsidiaries; or
<PAGE>
(c) result in, or require, the creation or imposition of any Lien
pursuant to the provisions of any indenture, instrument or agreement
binding upon the Borrower or any of its Subsidiaries.
3. The Loan Documents have been duly executed and delivered by the
Borrower and constitute legal, valid and binding obligations of the Borrower
enforceable in accordance with their terms except to the extent the enforcement
thereof may be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and subject also to the availability
of equitable remedies if equitable remedies are sought.
4. There is no litigation or proceeding against the Borrower or any of
its Subsidiaries which, if adversely determined, could have a Material Adverse
Effect.
5. No approval, authorization, consent, adjudication or order of, or
registration or filing with, any governmental authority, which has not been
obtained or made by the Borrower or any of its Subsidiaries, is required to be
obtained or made by the Borrower or any of its Subsidiaries in connection with
the execution and delivery of the Loan Documents, the borrowings under the
Agreement or in connection with the payment by the Borrower of their obligations
under the Loan Documents.
6. The Loan does not violate the usury laws or laws regulating the use or
forbearance of money of Illinois and the operation of any term of the Agreement
or Loan Documents, including, without limitation, the terms regarding late
charges and default interest rate or the lawful exercise of any right
thereunder, shall not render the Agreement or Loan Documents unenforceable, in
whole or in part, or subject to any right of rescission, set-off, counterclaim
or defense.
7. The Borrower qualifies as a real estate investment trust in accordance
with all applicable requirements of the Internal Revenue Code.
This opinion may be relied upon by the Administrative Agent, the Lenders
and their participants, assignees and other transferees.
Very truly yours,
-------------------------------
<PAGE>
EXHIBIT E
COMPLIANCE CERTIFICATE
To: The Administrative Agent and the Lenders
who are parties to the Agreement described below
This Compliance Certificate is furnished pursuant to that certain Amended
and Restated Unsecured Revolving Credit Agreement, dated as of __________, 1997
(as amended, modified, renewed or extended from time to time, the "Agreement")
among CenterPoint Properties Trust (the "Borrower"), The First National Bank of
Chicago, individually and as Administrative Agent, Lehman Brothers Holdings
Inc., individually and as Documentation Agent, and the Lenders named therein.
Unless otherwise defined herein, capitalized terms used in this Compliance
Certificate have the meanings ascribed thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected Chief Financial Officer of the Borrower.
2. I have reviewed the terms of the Agreement and I have made, or have
caused to be made under my supervision, a detailed review of the transactions
and conditions of the Borrower and its Subsidiaries and Qualifying Investment
Affiliates during the accounting period covered by the financial statements
attached (or most recently delivered to the Administrative Agent if none are
attached).
3. The examinations described in paragraph 2 did not disclose, and I have
no knowledge of, the existence of any condition or event which constitutes a
Material Adverse Effect, Default or Unmatured Default during or at the end of
the accounting period covered by the attached financial statements or as of the
date of this Compliance Certificate, except as set forth below.
4. Schedule I (if attached) attached hereto sets forth financial data and
computations and other information evidencing the Borrower's compliance with
certain covenants of the Agreement, all of which data, computations and
information (or if no ScheduleI is attached, the data, computations and
information contained in the most recent ScheduleI attached to a prior
Compliance Certificate) are true, complete and correct in all material respects.
5. The financial statements and reports referred to in SECTION 7.1(i),
7.1(ii), 7.1(iv), or 7.1(xi), as the case may be, of the Agreement which are
delivered concurrently with the delivery of this Compliance Certificate, if any,
fairly present in all material respects the consolidated financial condition and
operations of the Borrower and its Subsidiaries at such date and the
consolidated results of their operations for the period then-ended, in
accordance with GAAP applied consistently throughout such period and with prior
periods (except as approved by the accountants performing the audit in
connection therewith or the undersigned, as the case may be, and disclosed
therein), the Property Operating Income for each Property in accordance with
GAAP and adjusted per the definition of Property Operating Income contained in
the Agreement, and the aggregate aging of tenant receivables
<PAGE>
at such date. The following required reporting items are not yet available but
will be delivered within the ten Business Day grace period: ___________________.
Described below are the exceptions, if any, to paragraph 3 by listing, in
detail, the nature of the condition or event, the period during which it has
existed and the action which the Borrower has taken, is taking, or proposes to
take with respect to each such condition or event:
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
The foregoing certifications, together with the computations and
information set forth in Schedule I hereto and the financial statements
delivered with this Compliance Certificate in support hereof, are made and
delivered this ___ day of _____________________, 19__ .
CENTERPOINT PROPERTIES TRUST
By:_______________________________
Print Name:_______________________
Title:____________________________
<PAGE>
SCHEDULE I
Calculation of Covenants
[QUARTER]
1. Permitted Investments (Section 7.4)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Maximum
Category Investment Percent Percent of
-------- ---------- of Market Market
(i.e. Book Value) Capitalization Capitalization
-------------- --------------
- --------------------------------------------------------------------------------
(a) unimproved land 7%
- --------------------------------------------------------------------------------
(b) other property holdings 5%
(excluding cash, Cash
Equivalents, the
Non-industrial
Properties and
Indebtedness of any
Subsidiary or
Qualifying Investment
Affiliate to the
Borrower)
- --------------------------------------------------------------------------------
(c) stock holdings other 5%
than in Subsidiaries
and Qualifying
Investment Affiliates
- --------------------------------------------------------------------------------
(d) mortgages other than 5%
Qualified Mortgages
- --------------------------------------------------------------------------------
(e) joint ventures and 10%
partnerships other than
investments in
Qualifying Investment
Affiliates
- --------------------------------------------------------------------------------
(f) total investments in 20%
(a)-(e)
- --------------------------------------------------------------------------------
(g) investments in 5%
unimproved land not
adjacent to existing
improvements and not
under active planning
for near term
development
- --------------------------------------------------------------------------------
(h) interest in operating 10%
leases
- --------------------------------------------------------------------------------
(i) Identify any single property investments in excess of 10% of Market
Capitalization (If none, insert "none".): __________
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
2. Dividends (Section 7.11)
(a) Amount paid during most recent quarter ----------
- -----
(b) Amount paid during preceding three quarters ----------
- -----
(c) Funds From Operation during such four quarter period
(i) net income for such period ----------
- -----
(ii) adjustments to net income per definition
of Funds From Operation (See Schedule) ----------
- -----
(iii) Funds From Operation ----------
- -----
TOTAL DIVIDEND PAY OUT RATIO [(a) PLUS (b), DIVIDED BY (c)(iii)] ----------
Must be less than or equal to: 90% of Funds
From Operation
3. Variable Interest Indebtedness (Section 7.19)
(a) Indebtedness which bears interest at an interest rate that
is not fixed through the maturity date of such Indebtedness ----------
(b) Amount of (a) subject to a swap, rate cap or other interest ----------
rate management program that effectively converts the
interest rate on such amount to a fixed rate or has
otherwise been approved by the Required Lenders
(c) Excludable tax exempt bonds (subject to $75,000,000 cap) ----------
VARIABLE INTEREST INDEBTEDNESS [(a) MINUS (b) MINUS (c)]:
__________
MUST BE LESS THAN OR EQUAL TO: $150,000,000
<PAGE>
4. Minimum Consolidated Net Worth (Section 7.20)
(a) Consolidated Net Worth
(i) Market Capitalization ----------
- -----
(ii) Total Liabilities (including all
Indebtedness and other GAAP
liabilities) ----------
- -----
(iii) Excludable Convertible Securities ----------
(iv) Consolidated Net Worth [(i) MINUS (ii) PLUS (iii)] ----------
- -----
(b) $275,000,000
(c) product of .75 and net proceeds of stock offerings
since October __, 1996 ----------
- -----
(d) sum of (b) plus (c) ----------
- -----
(A) MUST BE GREATER THAN OR EQUAL TO (D).
5. EBITDA To Fully Diluted Debt Service Ratio (Section 7.21(i))
(a) EBITDA for the quarter most recently ended
(i) Borrower and its Subsidiaries ----------
(ii) Allocable EBITDA of Investment Affiliates ----------
(See Schedule)
(iii) EBITDA [(i) PLUS (ii)] ----------
(b) Fully Diluted Debt Service for the quarter most recently ended.
(i) Debt Service
(1) Interest (Borrower and Subsidiaries) ----------
(2) Principal (Borrower and Subsidiaries) ----------
<PAGE>
(3) Allocable Interest (Investment Affiliates) ----------
(4) Allocable Principal (Investment Affiliates) ----------
(5) Debt Service [SUM OF (1)-(4)] ----------
(ii) Amount of Debt Service attributable to Excludable
Convertible Securities ----------
- -----
(iii) Fully Diluted Debt Service [(i) MINUS (ii)] ----------
- -----
EBITDA TO FULLY DILUTED DEBT SERVICE RATIO
- -----
[(a) DIVIDED BY (b)]:
MUST BE LESS THAN OR EQUAL TO: 2.00
6. Consolidated Total Indebtedness Ratio (Section 7.21(ii))
(a) Consolidated Total Indebtedness (See Schedule) ----------
(b) Market Capitalization ----------
(i) Total Property Income Capped at Applicable Cap Rate
(Attach schedule noting Property Operating Income for
the most recent quarter by Property as appropriately
annualized; for Subsidiaries and Investment Affiliates
include allocable share only).
(1) Industrial and Multi-Family Properties ----------
capped at 9.5%
- -----
(2) Non-industrial that is not Multi-Family
capped at 10.25% ----------
(3) Sum of (1) plus (2) is Total Property
Income capped at Applicable Cap Rate. ----------
- -----
(ii) Other Income capped at 15% ----------
- -----
(iii) Value of Qualified Mortgages ----------
<PAGE>
(1) [IDENTIFY MORTGAGE]
A. Principal Balance ----------
- -----
B. 85% of value of Property ----------
- -----
encumbered by Qualified Mortgage (i.e.
Property Operating Income for the most
recent quarter as appropriately annualized,
and capitalized at the Applicable Cap Rate)
less first mortgage if applicable
C. Lesser of (A.) and (B.) ----------
(__) Sum of amount shown as (C.) for (1)-(__) ----------
- -----
above (maximum $50,000,000) is Value of
Qualified Mortgages
(iv) Book value of Preleased Assets Under Development ----------
[IDENTIFY ASSET, LEASE PERCENTAGE, AND DATE
CONSTRUCTION COMMENCED]
- -----
(v) Unrestricted Cash and Cash Equivalents ----------
- -----
(vi) 50% of lower of book value and market value ----------
for land adjacent to stabilized improved
Properties
- -----
(vii) Sum of (i) through (vi) is "Market Capitalization" ----------
- -----
CONSOLIDATED TOTAL INDEBTEDNESS RATIO
_____
[(a) DIVIDED BY (b) EXPRESSED AS A PERCENTAGE]:
MUST BE LESS THAN OR EQUAL TO: 50%
7. Value of Unencumbered Assets Ratio (Section 7.21(iii))
<PAGE>
(a) Value of Unencumbered Assets
(i) Property Operating Income attributable to Unencumbered Assets
owned by Borrower and Qualifying Investment Affiliates as of
end of quarter as appropriately annualized (including pro forma
Property Operating Income for entire quarter for Unencumbered
Assets acquired during the quarter), less assumed 1% management
fee and assumed Capital Reserve Expenditure Amount (attach
schedule noting Property Operating Income for each Unencumbered
Asset as appropriately annualized; for Qualifying Investment
Affiliates include allocable share only)
(1) Industrial and Multi-family Properties
capped at 9.5% ----------
- -----
(2) Non-Industrial Properties that are not
Multi-family Properties capped at 10.25% ----------
- -----
(3) Total value of Unencumbered Assets other
than Cash and Cash Equivalents [(1) PLUS (2)] ----------
- -----
(4) Deduction for Unencumbered Assets owned ----------
by Qualifying Investment Affiliates to the
extent the value attributable to such
Unencumbered Assets exceeds 10% of the total
shown in (3) unless permitted by the
definition of Unencumbered Assets
(5) (3) minus (4) ----------
- -----
(ii) Unrestricted Cash and Cash Equivalents owned ----------
by Borrower
- -----
(iii) Allocable Share of Unrestricted Cash and Cash ----------
Equivalents Owned by Qualifying Investment
Affiliates
<PAGE>
(vi) sum of (i)(5) plus (ii) plus (iii) is ----------
- -----
"Value of Unencumbered Assets
(b) Consolidated Senior Unsecured Indebtedness ----------
- -----
(provided schedule of such Indebtedness, including
unsecured debt of Investment Affiliates which own
Unencumbered Assets.)
VALUE OF UNENCUMBERED ASSETS RATIO [(a) DIVIDED BY (b)]:
MUST BE GREATER THAN OR EQUAL TO: 1.75
8. Property Operating Income Ratio (Section 7.21(iv)
(a) Property Operating Income (after assumed management ----------
- -----
fee and Capital Reserve Expenditure Amount from all
Unencumbered Assets other than those which are excluded
from the Value of Unencumbered Assets under 7(a)(i)(4)
(b) Debt Service on Consolidated Unsecured Indebtedness
and unsecured indebtedness of Qualifying Investment
Affiliates other than those which are excluded from
the Value of Unencumbered Assets under 7(a)(i)(4)
(i) Interest (Borrower and Subsidiaries) ----------
(ii) Principal (Borrower and Subsidiaries) ----------
(iii) Allocable Interest (Qualifying Investment
Affiliates) ----------
(iv) Allocable Principal (Qualifying Investment
Affiliates) ----------
(v) Debt Service [SUM OF (i)-(iv)] ----------
PROPERTY OPERATING INCOME RATIO [(a) DIVIDED BY (b)] ----------
MUST BE GREATER THAN OR EQUAL TO: 2.00
9. Consolidated Secured Indebtedness to Market Capitalization
(Section 7.21(v))
(a) Consolidated Secured Indebtedness
(i) secured indebtedness of Borrower and Subsidiaries ----------
- -----
(ii) prorata share of secured indebtedness of Investment
<PAGE>
Affiliates ----------
- -----
(iii) Consolidated Secured Indebtedness [SUM OF
(i) PLUS (ii)] ----------
- -----
(b) Market Capitalization [(6)(b)(vii)]
(c) (a) divided by (b) ----------
MUST BE LESS THAN OR EQUAL TO 30% OF MARKET CAPITALIZATION
10. Maximum Revenue From a Single Tenant (Section 7.24)
(a) 5% of Market Capitalization ----------
(b) Identify any tenant for which rent revenue
(exclusive of tenant reimbursements) as
annualized exceeds amount shown in (a). ----------
11. Other
Occurrence of Casualty or Condemnation at any Property or
Property secured by an Qualified Mortgage. (Yes/No)
(Section 7.1(x)). If yes, provide statement describing the
occurrence and action Borrower intends to take with
respect thereto ----------
Current on tax payments (Yes/No) (Section 7.5) ----------
Insurance in full force and effect (Yes/No)
(Sections 6.17 and 7.6) ----------
Have any shares owned by Borrower's management (as
defined in Section 7.14) been traded (Yes/No)
If yes, describe ----------
Acceleration notice received for indebtedness
aggregating $5,000,000 or more (Section 7.27) since
last Section 7.27 notice (Yes/No) If yes, promptly
provide copy of notice to the extent not previously
submitted ----------
List all outstanding judgments (Section 8.10)
----------
List all properties acquired or disposed of since the date ----------
<PAGE>
of the last financial statements delivered (including the
date of such acquisition or disposition) (Sections 7.12
and 7.13).
List all Property Breaches and the nature of such breach, ----------
if any. (Section 7.30). If such Property Breaches exist,
the covenants calculated herein should be performed both with
and without the affected Properties.
NOTE: To the extent of any inconsistency between the form of this
Compliance Certificate and the terms of the Agreement, the
terms of the Agreement shall prevail.
<PAGE>
EXHIBIT F
ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement") between
_____________________ (the "Assignor") and __________________ (the "Assignee")
is dated as of _________________, 19__. The parties hereto agree as follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to an Amended and
Restated Unsecured Revolving Credit Agreement (which, as it may be amended,
modified, renewed or extended from time to time is herein called the "Credit
Agreement") described in Item 1 of Schedule 1 attached hereto ("Schedule 1").
Capitalized terms used herein and not otherwise defined herein shall have the
meanings attributed to them in the Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and assigns to
the Assignee, and the Assignee hereby purchases and assumes from the Assignor,
an interest in and to the Assignor's rights and obligations under the Credit
Agreement such that after giving effect to such assignment the Assignee shall
have purchased pursuant to this Assignment Agreement the percentage interest
specified in Item 3 of Schedule 1 of all outstanding rights and obligations
under the Credit Agreement and the other Loan Documents. The aggregate
Commitment (or Loans, if the applicable Commitment has been terminated)
purchased by the Assignee hereunder is set forth in Item 4 of Schedule 1.
3. EFFECTIVE DATE. The effective date of this Assignment Agreement (the
"Effective Date") shall be the later of the date specified in Item 5 of Schedule
1 or two (2) Business Days (or such shorter period agreed to by the
Administrative Agent) after a Notice of Assignment substantially in the form of
Exhibit "I" attached hereto has been delivered to the Agent. In no event will
the Effective Date occur if the payments required to be made by the Assignee to
the Assignor on the Effective Date under SECTIONS 4 AND 5 hereof are not made on
the proposed Effective Date, unless otherwise agreed to in writing by Assignor
and Assignee. The Assignor will notify the Assignee of the proposed Effective
Date no later than the Business Day prior to the proposed Effective Date. As of
the Effective Date, (i) the Assignee shall have the rights and obligations of a
Lender under the Loan Documents with respect to the rights and obligations
assigned to the Assignee hereunder and (ii) the Assignor shall relinquish its
rights and be released from its corresponding obligations under the Loan
Documents with respect to the rights and obligations assigned to the Assignee
hereunder.
4. PAYMENTS OBLIGATIONS. On and after the Effective Date, the Assignee
shall be entitled to receive from the Administrative Agent all payments of
principal, interest and fees with respect to the interest assigned hereby. The
Assignee shall advance funds directly to the Administrative Agent with respect
to all Loans and reimbursement payments made on or after the Effective Date with
respect to the interest assigned hereby. [In consideration for the sale and
assignment of Loans hereunder, (i) the Assignee shall pay the Assignor, on the
Effective Date, an amount equal to the principal amount of the portion of all
CBR Loans assigned to the Assignee hereunder and (ii) with respect to each LIBOR
Loan made by the Assignor and assigned to the Assignee hereunder which is
outstanding on the Effective Date, (a) on the last day of the Interest Period
therefor or (b) on such earlier date agreed to by the Assignor and the Assignee
or (c) on the date on which any such LIBOR
<PAGE>
Loan either becomes due (by acceleration or otherwise) or is prepaid (the date
as described in the foregoing clauses (a), (b) or (c) being hereinafter referred
to as the "LIBOR Due Date"), the Assignee shall pay the Assignor an amount equal
to the principal amount of the portion of such LIBOR Loan assigned to the
Assignee which is outstanding on the LIBOR Due Date. If the Assignor and the
Assignee agree that the applicable LIBOR Due Date for such LIBOR Loan shall be
the Effective Date, they shall agree, solely for purposes of dividing interest
paid by the Borrower on such LIBOR Loan, to an alternate interest rate
applicable to the portion of such Loan assigned hereunder for the period from
the Effective Date to the end of the related Interest Period (the "Agreed
Interest Rate") and any interest received by the Assignee in excess of the
Agreed Interest Rate, with respect to such LIBOR Loan for such period, shall be
remitted to the Assignor. In the event a prepayment of any LIBOR Loan which is
existing on the Effective Date and assigned by the Assignor to the Assignee
hereunder occurs after the Effective Date but before the applicable LIBOR Due
Date, the Assignee shall remit to the Assignor any excess of the funding
indemnification amount paid by the Borrower under SECTION 3.4 of the Credit
Agreement an account of such prepayment with respect to the portion of such
LIBOR Loan assigned to the Assignee hereunder over the amount which would have
been paid if such prepayment amount were calculated based on the Agreed Interest
Rate and only covered the portion of the Interest Period after the Effective
Date. The Assignee will promptly remit to the Assignor (i) the portion of any
principal payments assigned hereunder and received from the Administrative Agent
with respect to any LIBOR Loan prior to its LIBOR Due Date and (ii) any amounts
of interest on Loans and fees received from the Administrative Agent which
relate to the portion of the Loans assigned to the Assignee hereunder for
periods prior to the Effective Date, in the case of CBR Loans or fees, or the
LIBOR Due Date, in the case of LIBOR Loans, and not previously paid by the
Assignee to the Assignor.]* In the event that either party hereto receives any
payment to which the other party hereto is entitled under this Assignment
Agreement, then the party receiving such amount shall promptly remit it to the
other party hereto.
5. FEES PAYABLE BY THE ASSIGNEE. The Assignee shall pay to the Assignor
a fee on each day on which a payment of interest or Facility Fee is made under
the Credit Agreement with respect to the amounts assigned to the Assignee
hereunder (other than a payment of interest or Facility Fee attributable to the
period prior to the Effective Date or, in the case of LIBOR Loans, the Payment
Date, which the Assignee is obligated to deliver to the Assignor pursuant to
SECTION 4 hereof). The amount of such fee shall be the difference between (i)
the interest or fee, as applicable, paid with respect to the amounts assigned to
the Assignee hereunder and (ii) the interest or fee, as applicable, which would
have been paid with respect to the amounts assigned to the Assignee hereunder if
each interest rate was calculated at the rate of ____% rather than the actual
percentage used to calculate the interest rate paid by the Borrower or if the
Facility Fee was calculated at the rate of ____% rather than the actual
percentage used to calculate the Facility Fee paid by the Borrower, as
applicable. In addition, the Assignee agrees to pay ___% of the fee required to
be paid to the Agent in connection with this Assignment Agreement. [THIS
SENTENCE CAN BE REVISED APPROPRIATELY BASED ON HOW THE FEE IS BEING PAID.]
<PAGE>
*EACH ASSIGNOR MAY INSERT ITS STANDARD PROVISIONS IN LIEU OF THE PAYMENT TERMS
INCLUDED IN SECTIONS 4 AND 5 OF THIS EXHIBIT.
6. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNOR'S
LIABILITY. The Assignor represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim created by the Assignor. It is
understood and agreed that the assignment and assumption hereunder are made
without recourse to the Assignor and that the Assignor makes no other
representation or warranty of any kind to the Assignee. Neither the Assignor
nor any of its officers, directors, employees, agents or attorneys shall be
responsible for (i) the due execution, legality, validity, enforceability,
genuineness, sufficiency or collectability of any Loan Document, including
without limitation, documents granting the Assignor and the other Lenders a
security interest in assets of the Borrower or any guarantor, (ii) any
representation, warranty or statement made in or in connection with any of the
Loan Documents, (iii) the financial condition or creditworthiness of the
Borrower or any guarantor, (iv) the performance of or compliance with any of the
terms or provisions of any of the Loan Documents, (v) inspecting any of the
Property, books or records of the Borrower, its Subsidiaries or Investment
Affiliates, (vi) the validity, enforceability, perfection, priority, condition,
value or sufficiency of any collateral securing or purporting to secure the
Loans or (vii) any mistake, error of judgment, or action taken or omitted to be
taken in connection with the Loans or the Loan Documents.
7. REPRESENTATIONS OF THE ASSIGNEE. The Assignee (i) confirms that it
has received a copy of the Credit Agreement and the other Loan Documents,
together with copies of the financial statements requested by the Assignee and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into this Assignment Agreement, (ii)
agrees that it will, independently and without reliance upon the Administrative
Agent, the Documentation Agent, the Assignor or any other Lender and based on
such documents and information at it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Loan Documents, (iii) appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers under the
Loan Documents as are delegated to the Administrative Agent by the terms
thereof, together with such powers as are reasonably incidental thereto, (iv)
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender, (v) agrees that its payment instructions and notice
instructions are as set forth in the attachment to Schedule 1, (vi) confirms
that none of the funds, monies, assets or other consideration being used to make
the purchase and assumption hereunder are "plan assets" as defined under ERISA
and that its rights, benefits and interests in and under the Loan Documents will
not be "plan assets" under ERISA, [AND (VII) ATTACHES THE FORMS PRESCRIBED BY
THE INTERNAL REVENUE SERVICE OF THE UNITED STATES CERTIFYING THAT THE ASSIGNEE
IS ENTITLED TO RECEIVE PAYMENTS UNDER THE LOAN DOCUMENTS WITHOUT DEDUCTION OR
WITHHOLDING OF ANY UNITED STATES FEDERAL INCOME TAXES].**
**TO BE INSERTED IF THE ASSIGNEE IS NOT INCORPORATED UNDER THE LAWS OF THE
UNITED STATES, OR A STATE THEREOF.
8. INDEMNITY. The Assignee agrees to indemnify and hold the Assignor
harmless against any and all losses, costs and expenses (including, without
limitation, reasonable attorneys' fees)
<PAGE>
and liabilities incurred by the Assignor in connection with or arising in any
manner from the Assignee's non-performance of the obligations assumed under this
Assignment Agreement.
9. SUBSEQUENT ASSIGNMENTS. After the Effective Date, the Assignee shall
have the right pursuant to SECTION 13.3.1 of the Credit Agreement to assign the
rights which are assigned to the Assignee hereunder to any entity or person,
provided that (i) any such subsequent assignment does not violate any of the
terms and conditions of the Loan Documents or any law, rule, regulation, order,
writ, judgment, injunction or decree and that any consent required under the
terms of the Loan Documents has been obtained and (ii) unless the prior written
consent of the Assignor is obtained, the Assignee is not thereby released from
its obligations to the Assignor hereunder, if any remain unsatisfied, including,
without limitation, its obligations under SECTIONS 4, 5 AND 8 hereof.
10. REDUCTIONS OF AGGREGATE COMMITMENT. If any reduction in the Aggregate
Commitment occurs between the date of this Assignment Agreement and the
Effective Date, the percentage interest specified in Item 3 of Schedule 1 shall
remain the same, but the dollar amount purchased shall be recalculated based on
the reduced Aggregate Commitment.
11. ENTIRE AGREEMENT. This Assignment Agreement and the attached Notice
of Assignment embody the entire agreement and understanding between the parties
hereto and supersede all prior agreements and understandings between the parties
hereto relating to the subject matter hereof.
12. GOVERNING LAW. This Assignment Agreement shall be governed by the
internal law, and not the law of conflicts, of the State of Illinois.
<PAGE>
13. NOTICES. Notices shall be given under this Assignment Agreement in
the manner set forth in the Credit Agreement. For the purpose hereof, the
addresses of the parties hereto (until notice of a change is delivered) shall be
the address set forth in the attachment to Schedule 1.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement by their duly authorized officers as of the date first above written.
[NAME OF ASSIGNOR]
By: ________________________________
- -----
Title: ________________________________
- -----
________________________________
- -----
________________________________
- -----
[NAME OF ASSIGNEE]
By: ________________________________
- -----
Title: ________________________________
- -----
________________________________
- -----
________________________________
- -----
<PAGE>
SCHEDULE 1
to Assignment Agreement
1. Description and Date of Credit Agreement:
2. Date of Assignment Agreement: _____________, 19__
3. Amounts (As of Date of Item 2 above):
a. Aggregate Commitment
(Loans)* under
Credit Agreement $_________
b. Assignee's Percentage
of the Aggregate Commitment
purchased under this
Assignment Agreement** __________%
4. Amount of Assignee's Commitment (Loan Amount)*
Purchased under this Assignment Agreement: $__________
5. Amount of Assignor's Commitment (Loan Amount)
After Purchase under this Assignment Agreement __________
6. Proposed Effective Date: __________
Accepted and Agreed:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: ________________________ By: _________________________
Title: _____________________ Title: ______________________
* If a Commitment has been terminated, insert outstanding Loans in place of
Commitment
** Percentage taken to 10 decimal places
<PAGE>
Attachment to SCHEDULE 1 to ASSIGNMENT AGREEMENT
Attach Assignor's Administrative Information Sheet, which must
include notice address and account information for the Assignor and the
Assignee
<PAGE>
EXHIBIT "I"
to Assignment Agreement
NOTICE
OF ASSIGNMENT
____________, 19__
To: [NAME OF ADMINISTRATIVE AGENT]
_____________________
_____________________
From: [NAME OF ASSIGNOR] (the "Assignor")
[NAME OF ASSIGNEE] (the "Assignee")
1. We refer to that Amended and Restated Unsecured Revolving Credit
Agreement (the "Credit Agreement") described in Item 1 of Schedule 1 attached
hereto ("Schedule 1"). Capitalized terms used herein and not otherwise defined
herein shall have the meanings attributed to them in the Credit Agreement.
2. This Notice of Assignment (this "Notice") is given and delivered
to the Administrative Agent pursuant to SECTION 13.3.2 of the Credit Agreement.
3. The Assignor and the Assignee have entered into an Assignment
Agreement, dated as of ___________, 19__ (the "Assignment"), pursuant to which,
among other things, the Assignor has sold, assigned, delegated and transferred
to the Assignee, and the Assignee has purchased, accepted and assumed from the
Assignor the percentage interest specified in Item 3 of Schedule 1 of all
outstandings, rights and obligations under the Credit Agreement. From and after
such purchase, the Assignee's Commitment shall be the amount specified in Item 4
of Schedule 1 and the Assignor's Commitment shall be the amount specified in
Item 5 of Schedule 1. The Effective Date of the Assignment shall be the later
of the date specified in Item 5 of Schedule 1 or two (2) Business Days (or such
shorter period as agreed to by the Administrative Agent) after this Notice of
Assignment and any fee required by SECTION 13.3.2 of the Credit Agreement have
been delivered to the Administrative Agent, provided that the Effective Date
shall not occur if any condition precedent agreed to by the Assignor and the
Assignee or set forth in SECTION 13 of the Credit Agreement has not been
satisfied.
4. The Assignor and the Assignee hereby give to the Administrative
Agent notice of the assignment and delegation referred to herein. The Assignor
will confer with the Administrative Agent before the date specified in Item 6 of
Schedule 1 to determine if the Assignment Agreement will become effective on
such date pursuant to SECTION 3 hereof, and will confer with the Administrative
Agent to determine the Effective Date pursuant to SECTION 3 hereof if it occurs
thereafter. The Assignor shall notify the Administrative Agent if the
Assignment Agreement does not become effective on any proposed Effective Date as
a result of the failure to satisfy the conditions
<PAGE>
precedent agreed to by the Assignor and the Assignee. At the request of the
Administrative Agent, the Assignor will give the Administrative Agent written
confirmation of the satisfaction of the conditions precedent.
5. The Assignor or the Assignee shall pay to the Administrative
Agent on or before the Effective Date the processing fee of $3,000 required by
SECTION 13.3.2 of the Credit Agreement.
6. If Notes are outstanding on the Effective Date, the Assignor and
the Assignee request and direct that the Administrative Agent prepare and cause
the Borrower to execute and deliver new Notes or, as appropriate, replacements
notes, to the Assignor and the Assignee. The Assignor and, if applicable, the
Assignee each agree to deliver to the Administrative Agent the original Note
received by it from the Borrower upon its receipt of a new Note in the
appropriate amount.
7. The Assignee advises the Administrative Agent that notice and
payment instructions are set forth in the attachment to Schedule 1.
8. The Assignee hereby represents and warrants that none of the
funds, monies, assets or other consideration being used to make the purchase
pursuant to the Assignment are "plan assets" as defined under ERISA and that its
rights, benefits, and interests in and under the Loan Documents will not be
"plan assets" under ERISA.
9. The Assignee authorizes the Administrative Agent to act as its
agent under the Loan Documents in accordance with the terms thereof. The
Assignee acknowledges that the Administrative Agent has no duty to supply
information with respect to the Borrower or the Loan Documents to the Assignee
until the Assignee becomes a party to the Credit Agreement.*
*May be eliminated if Assignee is a party to the Credit Agreement prior to the
Effective Date.
NAME OF ASSIGNOR NAME OF ASSIGNEE
By:___________________________ By: ___________________________
Title: _______________________ Title: ________________________
ACKNOWLEDGED AND CONSENTED TO
BY THE FIRST NATIONAL BANK OF CHICAGO, as Administrative Agent
By: __________________________
Title: _______________________
[ATTACH PHOTOCOPY OF SCHEDULE 1 TO ASSIGNMENT]
<PAGE>
EXHIBIT G
LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION
To: The First National Bank of Chicago,
as Administrative Agent (the "Agent") under the Credit Agreement
Described Below
Re: Amended and Restated Unsecured Revolving Credit Agreement, dated
as of ___________, ____ 1997 (as amended, modified, renewed or
extended from time to time, the "Agreement"), among CenterPoint
Properties Trust (the "Borrower"), The First National Bank of
Chicago, individually and as Administrative Agent, Lehman
Brothers Holdings Inc., individually and as Document Agent, and
the Lenders named therein. Terms used herein and not otherwise
defined shall have the meanings assigned thereto in the Credit
Agreement.
The Administrative Agent is specifically authorized and directed to act
upon the following standing money transfer instructions with respect to the
proceeds of Advances or other extensions of credit from time to time until
receipt by the Agent of a specific written revocation of such instructions by
the Borrower, provided, however, that the Administrative Agent may otherwise
transfer funds as hereafter directed in writing by the Borrower in accordance
with SECTION 14.1 of the Credit Agreement or based on any telephonic notice made
in accordance with SECTION 2.16 of the Credit Agreement.
Facility Identification Number(s)
-----------------------------------------------
Customer/Account Name
-----------------------------------------------------------
Transfer Funds To
---------------------------------------------------------------
-----------------------------------------------
-----------------------------------------------
For Account No.
-----------------------------------------------------------------
Reference/Attention To
----------------------------------------------------------
Authorized Officer (Customer Representative) Date
------------------------------
- ------------------------------------------- ---------------------------------
(Please Print) Signature
Bank Officer Name Date
-----------------------------
- ------------------------------------------- ---------------------------------
(Please Print) Signature
<PAGE>
(Deliver Completed Form to Credit Support Staff For Immediate Processing)
<PAGE>
EXHIBIT H
MINIMUM SPECIFICATIONS FOR ENVIRONMENTAL INVESTIGATIONS
The following are Guidelines for the qualification of firms and
environmental professionals and for information to be included in Environmental
Site Assessments. These standards include the minimum elements common to
acceptable site assessments. Generally, it is intended for the standards to be
consistent with those outlined in the American Society for Testing and Materials
("ASTM") Designation: E 1527-93.
QUALIFICATIONS OF INVESTIGATING FIRM
The firm or environmental professional must have 5 years of experience in
hazardous substances investigation. The environmental professional supervising
and signing the report should be experienced in environmental site
investigations, and should have relevant environmental experience and technical
qualifications, such as demonstrated by professional registration and/or
advanced education in related disciplines. The firm or environmental
professional performing the work should have adequate professional liability
insurance. Borrower and Lenders may agree in advance on qualified firms or
environmental professionals that will conduct the Phase I Reports. Borrower may
from time to time select other firms or environmental professionals that meet
the minimum qualifications set out above to conduct a Phase I Report, subject to
approval of the Administrative Agent, which approval shall not be unreasonably
withheld or delayed.
<PAGE>
DEPTH OF REPORTING REQUIRED
Phase I - consists of site description, review of historical and
regulatory data and physical inspection. The firm or environmental
professional will follow the standard practices set out in the ASTM E 1527-93
guidelines in conducting the Phase I Site Assessment and drafting the Report
and in preparing the Findings and Conclusions. All deletions and deviations
from the ASTM E 1527-93 guidelines shall be listed individually and in
detail. As an additional component of the Phase I Site Assessment, the firm
or environmental professional will conduct an asbestos survey or inspection
in accordance with the protocols set by OSHA under the Occupational Safety &
Health Act (including protocols set forth under the Asbestos Hazard Emergency
Response Act (AHERA) that are incorporated into the OSHA protocols) unless an
alternate protocol is approved by the Administrative Agent. In all events
such survey or inspection shall comply with all applicable Environmental
Laws, including, but not limited to, 29 C.F.R. Section 1910.1001. The firm
or environmental professional will also conduct a lead-based paint survey or
inspection when necessary, including but not limited to prior to demolition
or renovation work and as required by all applicable Environmental Laws,
including, but not limited to 29 C.F.R. Section Sections 1910.1025 and
1926.62. If no potential contamination is indicated, the report should so
state, and a specific statement should be made that no further investigation
is required.
Phase II - If a Phase I examination indicates the presence of recognized
environmental conditions which would warrant further appropriate inquiry, the
consultant should document the basis for that conclusion, recommend a testing
program for further evaluation, including the areas to be tested and, if
appropriate, the hazardous constituents of concern, sampling procedures to be
used and methods used to assess the samples. If after evaluating the
recommendation, the Borrower determines that a Phase II is
<PAGE>
necessary, then the Borrower will request the firm or environmental professional
to prepare a bid, and may solicit competitive bids from other firms or
environmental professionals. The Phase II Report should document the extent,
and, if possible, source, of contamination so that the Borrower can assess
whether remediation is required under applicable Environmental Laws. If the
Borrower plans to conduct remediation estimated to cost more than $250,000 for
any Project, the Borrower will promptly provide written notice to the
Administrative Agent. If the Borrower does not follow the recommendation of the
firm or environmental professional to conduct a Phase II investigation or
remediation for any Project, the Borrower will promptly provide written notice
to the Administrative Agent.
RELIANCE ON PHASE I REPORT
The Phase I Report shall include a statement that the firm or environmental
professional acknowledges that the Lenders will be relying on the Report.
<PAGE>
EXHIBIT I
FORM OF DESIGNATION AGREEMENT
Dated _____________, 199__
Reference is made to the Amended and Restated Unsecured Credit Agreement
dated as of ______________, 1997 (as amended, supplemented or otherwise modified
from time to time, the "Credit Agreement") among CenterPoint Properties Trust, a
Maryland real estate investment trust (the "Borrower"), the Banks parties
thereto, and The First National Bank of Chicago, as Administrative Agent (the
"Agent") for the Banks. Terms defined in the Credit Agreement are used herein
with the same meaning.
[NAME OF DESIGNOR] (the "Designor"), [NAME OF DESIGNEE] (the "Designee"),
the Agent and the Borrower agree as follows:
1. The Designor hereby designates the Designee, and the Designee hereby
accepts such designation, to have a right to make Competitive Bid Loans pursuant
to Section 2.14 of the Credit Agreement. Any assignment by Designor to Designee
of its rights to make a Competitive Bid Loan pursuant to such Section 2.14 shall
be effective at the time of the funding for such Competitive Bid Loan and not
before such time.
2. Except as set forth in Section 7 below, the Designor makes no
representation or warranty and assumes no responsibility pursuant to this
Designation Agreement with respect to (a) any statements, warranties or
representations made in or in connection with any Loan Document or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of any Loan Document or any other instrument and document furnished pursuant
thereto and (b) the financial condition of the Borrower or any Loan Party of the
performance or observance by the Borrower or any Loan Party or any of their
respective obligations under any Loan Document or any other instrument or
document furnished pursuant thereto. (It is acknowledged that the Designor may
make representations and warranties of the type described above in other
agreements to which the Designor is a party).
3. The Designee (a) confirms that it has received a copy of each Loan
Document, together with copies of the financial statements referred to in
Section 7.1 of the Credit Agreement and such other documents and information as
it has deemed appropriate to make its own independent credit analysis and
decision to enter into this Designation Agreement, (b) agrees that it will,
independently and without reliance upon the Agent, the Designor or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under Loan Document; (c) confirms that it is a Designated Lender; (d)
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers and discretion under any Loan Document as are delegated
to the Agent by the terms thereof, together with such powers and discretion as
are reasonably incidental thereto, and (e) agrees that it will
<PAGE>
perform in accordance with their terms all of the obligations which by the terms
of any Loan Document are required to be performed by it as a Lender.
4. The Designee hereby appoints Designor as Designee's agent and attorney
in fact, and grants to Designor an irrevocable power of attorney, to deliver and
receive all communications and notices under the Credit Agreement and other Loan
Documents and to exercise on Designee's behalf all rights to vote and to grant
and made approvals, waivers, consents or amendment to or under the Credit
Agreement or other Loan Documents. Any document executed by the Designor on the
Designee's behalf in connection with the Credit Agreement or other Loan
Documents shall be binding on the Designee. The Borrower, the Agent and each of
the Banks may rely on and are beneficiaries of the preceding provisions.
5. Following the execution of this Designation Agreement by the Designor
and its Designee, it will be delivered to the Agent for acceptance and recording
by the Agent. The effective date for this Designation Agreement (the "Effective
Date") shall be the date of acceptance hereof by the Agent, unless otherwise
specified on the signature page thereto.
6. Upon such acceptance and recording by the Agent, as of the Effective
Date, the Designee shall be a party to the Credit Agreement with a right to make
Competitive Bid Loans as pursuant to Section 2.14 of the Credit Agreement and
the rights and obligations of a Lender related thereto.
7. This Designation Agreement shall be governed by, and construed in
accordance with, the laws of the State of Illinois, without reference to the
provisions thereof regarding conflicts of law.
8. This Designation Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Designation Agreement by facsimile
transmission shall be effective as of delivery of a manually executed
counterpart of this Designation Agreement.
IN WITNESS WHEREOF, the Designor and the Designee, intending to be legally
bound, have caused this Designation Agreement to be executed by their officers
thereunto duly authorized as of the date first above written.
Effective Date (1)_____________, _____, 199__
[NAME OF DESIGNOR], as Designor
- ---------------
(1) This date should be no earlier than five Business Days after the
delivery of this Designation Agreement to the Agent.
-2-
<PAGE>
By:
--------------------------------
Title:
-----------------------------
[NAME OF DESIGNEE], as Designee
By:
--------------------------------
Title:
-----------------------------
Applicable Lending Office (and
address for notices):
[ADDRESS]
Accepted this ____ day
of _______________, 199__
[AGENT], as Agent [BORROWER]
By: By:
------------------------------------- -------------------------------
Title: Title:
---------------------------------- ----------------------------
-3-
<PAGE>
SCHEDULE 1
SUBSIDIARIES AND OTHER INVESTMENTS
(See SECTION 6.7)
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
Qualifying
Investment Description
Investment Owned Amount of Percent Jurisdiction of Affiliate Properties of Business
In By Investment Ownership Organization (Yes or No) Owned Operations
-- -- ---------- --------- ------------ ---------- ----- ----------
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
SCHEDULE 2
UNENCUMBERED ASSETS
(See SECTION 6.24)
<TABLE>
- ----------------------------------------------------------------------------------------------------------------------------------
Project Name Date Placed Fee or If Leasehold,
and Address (**) Type of Project In Service Owned By Leasehold Ground Lessor
----------- --------------- ---------- -------- --------- -------------
<S> <C> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
- ---------------
(**) Those Properties identified with an asterisk are Restricted Unencumbered
Assets (as defined in Section 7.25).
<PAGE>
SCHEDULE 3
INDEBTEDNESS AND LIENS
(See SECTION 7.16)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Maturity and
Indebtedness Indebtedness Property Amount of
Incurred By Owned To Encumbered Indebtedness
----------- -------- ---------- ------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
SCHEDULE 4
PLANS AND MULTIEMPLOYER PLANS
None.
-7-
<PAGE>
SCHEDULE 5
ENVIRONMENTAL DISCLOSURES
None.
-8-
<PAGE>
SCHEDULE 6
NONCOMPLIANCE WITH LAWS
None.
-9-
<PAGE>
SCHEDULE 7
LITIGATION AND INVESTIGATIONS
None.
-10-
<PAGE>
SCHEDULE 8
CONTINGENT OBLIGATIONS
None.
-11-
<PAGE>
SCHEDULE 9
INDEBTEDNESS DEFAULTS
None.
-12-
<PAGE>
EXHIBIT 10.52
THIRD AMENDMENT
CENTERPOINT PROPERTIES TRUST
1993 STOCK OPTION PLAN
The CenterPoint Properties 1993 Stock Option Plan (as amended, the "Plan") is
hereby amended to provide for the vesting of stock options granted under the
Plan upon a change of control (as defined herein).
ARTICLE 1
A new Section 7.6 is hereby added to the Plan, to read as follows:
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:
(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-
<PAGE>
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
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.
<PAGE>
ARTICLE 2
This amendment is effective as of the date of adoption by the Board.
<PAGE>
FIRST AMENDMENT TO CREDIT AGREEMENT
This First Amendment to Credit Agreement (this "Amendment") is made as of
the ____ day of February, 1998, by and among CENTERPOINT PROPERTIES TRUST, a
Maryland real estate investment trust (the "Borrower"), the several banks,
financial institutions and other entities from time to time parties to the
Credit Agreement described below (collectively, the "Lenders"), LEHMAN BROTHERS
HOLDINGS INC. d/b/a LEHMAN CAPITAL, A DIVISION OF LEHMAN BROTHERS HOLDINGS INC.
("Lehman") not individually, but as "Documentation Agent," and THE FIRST
NATIONAL BANK OF CHICAGO, not individually, but as "Administrative Agent."
R E C I T A L S:
A. The Lenders, the Administrative Agent, the Documentation Agent and
Borrower are parties to that certain Amended and Restated Unsecured Revolving
Credit Agreement dated as of November 13, 1997 (the "Credit Agreement"). All
capitalized terms used in this agreement and not otherwise defined herein shall
have the meanings ascribed to such terms in the Credit Agreement.
B. Section 2.4 of the Credit Agreement provides that the CBR Applicable
Margin and the LIBOR Applicable Margin to be used in calculating the interest
rate applicable to different Types of Advances shall vary from time to time in
accordance with the ratings from Moody's and S&P for either Borrower's long-term
unsecured debt or the Facility as set forth in the table attached as EXHIBIT A
to the Credit Agreement.
C. Furthermore, Section 2.4 of the Credit Agreement and EXHIBIT A thereto
provide that in the event that Moody's and S&P issue split ratings on the
Borrower's long-term unsecured debt, Borrower may obtain a third rating from
Duff & Phelps or Fitch and the higher of the Moody's or S&P rating shall be
deemed applicable until the earlier of (i) 90 days after the date of the
occurrence of such split ratings or (ii) the date of the issuance of the third
rating by Duff & Phelps or Fitch. After 90 days, if a third rating has not been
issued, the lower of the Moody's or S&P rating shall apply.
D. On November 4, 1997, S&P issued a rating that differed from the rating
previously issued by Moody's, thereby resulting in a split rating.
E. Borrower has advised the Administrative Agent that it is seeking a
third rating but that such rating has not been available within the 90-day
period referenced in Section 2.4 and EXHIBIT A, and, therefore, Borrower has
requested that on a one-time basis only it be allowed more than 90- days to
obtain a third rating.
NOW, THEREFORE, in consideration of the foregoing recitals and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
<PAGE>
AGREEMENTS
1. For only this present occurrence of split ratings, the higher of the
Moody's or S&P rating shall presently be deemed applicable until the earlier of
(i) March 20, 1998, or (ii) the date of the issuance of the third rating by Duff
& Phelps or Fitch. All future occurrences of split ratings, if any, shall be
addressed pursuant to Section 2.4 and EXHIBIT A of the Credit Agreement as
originally written.
2. All of the obligations of the parties to the Credit Agreement, as
amended hereby, are hereby ratified and confirmed. All references to the Credit
Agreement shall henceforth be deemed to refer to the Credit Agreement as amended
by this Amendment. Borrower represents and warrants to Lenders that no default
exists under the Credit Agreement.
3. This Amendment may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Amendment by signing such counterpart.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first above written.
CENTERPOINT PROPERTIES TRUST, a
Maryland real estate investment trust
By:
--------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF
CHICAGO, individually and as
Administrative Agent
By:
--------------------------------
Name:
Title:
-2-
<PAGE>
LEHMAN BROTHERS HOLDINGS INC.,
d/b/a Lehman Capital, A Division of Lehman
Brothers Holdings Inc., individually and as
Documentation Agent
By:
--------------------------------
Name:
Title:
NATIONSBANK, N.A.
By:
--------------------------------
Name: Donna Friedel
Title: Senior Vice President
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By:
--------------------------------
Name: George W. Kirtland, Jr.
Title: Vice President
LASALLE NATIONAL BANK
By:
--------------------------------
Name:
Title:
DRESDNER BANK AG NEW YORK AND
GRAND CAYMAN BRANCHES
By:
--------------------------------
Name:
Title:
FIRST BANK NATIONAL ASSOCIATION
By:
--------------------------------
Name:
Title:
-3-
<PAGE>
UNION BANK OF SWITZERLAND, NEW
YORK BRANCH
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
-4-
<PAGE>
EXHIBIT 12-1
CENTERPOINT PROPERTIES TRUST
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------
1997 1996 1995 1994 1993
------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C>
Available earnings:
Net income (loss) $27,630 $14,941 $ 8,212 $ 2,359 ($4,930)
Add interest expense (1) 10,871 10,992 12,985 12,157 4,111
------- ------- ------- ------- -------
Available earnings (loss) (2) $38,501 $25,933 $21,197 $14,516 ($ 819)
------- ------- ------- ------- -------
------- ------- ------- ------- -------
Fixed Charges:
Interest expense $10,871 $10,992 $12,985 $12,157 $4,111
Capitalized interest 893 142 20 63 470
------- ------- ------- ------- -------
Total Fixed Charges $11,764 $11,134 $13,005 $12,220 $4,581
------- ------- ------- ------- -------
------- ------- ------- ------- -------
Ratio of earnings to Fixed Charges (3) 3.27 2.33 1.63 1.19
------- ------- ------- -------
------- ------- ------- -------
</TABLE>
- -----------------------------
NOTES:
(1) Interest expense includes amortization of debt expense.
(2) Interest portion of rental expense is not calculated because annual rental
expense for the Company is not significant.
(3) The ratio of earnings to fixed charges for the year ended December 31, 1993
was less than one to one. The approximate dollar amount necessary to cover
the deficiency in that period was $5,400.
<PAGE>
EXHIBIT 12-2
CENTERPOINT PROPERTIES TRUST
COMPUTATION OF RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED DIVIDENDS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------
1997 1996 1995 1994 1993
------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C>
Available earnings:
Net income (loss) $27,630 $14,941 $ 8,212 $ 2,359 ($4,930)
Add interest expense (1) 10,871 10,992 12,985 12,157 4,111
------- ------- ------- ------- -------
Available earnings (loss) (2) $38,501 $25,933 $21,197 $14,516 ($ 819)
------- ------- ------- ------- -------
------- ------- ------- ------- -------
Fixed Charges:
Interest expense $10,871 $10,992 $12,985 $12,157 $4,111
Capitalized interest 893 142 20 63 470
Preferred dividends 901 947 1,002
------- ------- ------- ------- -------
Total Fixed Charges $12,665 $12,081 $14,007 $12,220 $4,581
------- ------- ------- ------- -------
------- ------- ------- ------- -------
Ratio of earnings to Fixed Charges (3) 3.04 2.15 1.51 1.19
------- ------- ------- -------
------- ------- ------- -------
</TABLE>
- -----------------------------
NOTES:
(1) Interest expense includes amortization of debt expense.
(2) Interest portion of rental expense is not calculated because annual rental
expense for the Company is not significant.
(3) The ratio of earnings to fixed charges for the year ended December 31, 1993
was less than one to one. The approximate dollar amount necessary to cover
the deficiency in that period was $5,400.
<PAGE>
CenterPoint Properties 1997 Annual Report
Where Industry
Works
Our Mission
Founded in 1984, CenterPoint Properties has grown to become the largest and
leading industrial property company in North America's largest and most
diverse industrial property market -- Greater Chicago. We are entirely
focused on adding value for our tenants through the ownership, intensive
management, development and redevelopment of warehouse, distribution, light
manufacturing and airfreight buildings.
Our mission is to be the industrial landlord of choice in the Greater Chicago
region. We seek long-term relationships with our tenants by being responsive
to their changing needs, prepared to meet any challenge and constantly
innovating to enhance our mutual growth. In order to accomplish this, we are
committed to similar relationships with our internal colleagues, business
partners and the community at large.
These efforts will allow us to meet our overall financial objectives of
sustaining high per share growth, a conservative balance sheet and returns
well above our cost of capital.
CenterPoint's Markets:
The Greater Chicago region represents the industrial heart of the United
States. It encompasses 5,000 square miles and is the continent's largest
transportation, distribution, manufacturing and warehouse/industrial property
market.
CenterPoint Properties is the leader in North America's largest industrial
property market
With approximately 1.2 billion square feet of facilities, the Greater Chicago
region is the largest warehouse/industrial market in North America. Its highly
diverse industries serve domestic and international markets, creating stable
economic growth and a steady demand for space.
CenterPoint's Market: 1 One-third of the nation's Gross Domestic Product is
created within 8 hours of Chicago. It is the nation's largest trucking and
intermodal market. Rail service and marshalling yards handle 75 percent of the
nation's rail freight. Barges and freighters give seaport access through the
Great Lakes and the Mississippi River. O'Hare International remains the world's
busiest airport and one of the nation's fastest growing air freight hubs. This
irreplaceable transportation infrastructure insures the continuing vibrancy and
diversity of the Greater Chicago industrial property market. 2 The Greater
1
<PAGE>
Chicago Industrial property market is larger than Indianapolis, Cincinnati,
Columbus, Detroit, St. Louis and Cleveland combined. It has more square feet
of facilities than the 10 southeastern states combined. 3 The region's
stability is anchored in tremendous internal diversity. The greater Chicago
region is not dependent on any single industry. In fact, its diversity and
activity mirrors that of the U.S. economy as a whole. 4 CenterPoint enjoys a
diverse customer base. With more than 200 tenants in more than 100
facilities, no single customer represents more than 5 percent of total
company revenue. No single industry represents more than 20 percent of the
company's revenues.
DHL, Air Canada, Alliance and Burlington Air Express were among the major
international air-freight carriers to move operations to three built-to-suit
facilities in O'Hare Express Center, CenterPoint's on-airport industrial
park. With a fourth facility now under construction, O'Hare Express will soon
total nearly 1 million square feet. Air freight is Chicago's fastest growing
industrial property use - a market CenterPoint dominates.
1997 Highlights
- - $2.23 FFO per share, up 14.4 percent over 1996
- - Funds Available for Distribution per share
(FAD) increased 17 percent
- - "Same store" growth: 6 percent
- - 41.4 percent growth in net operating income
- - Total market capitalization exceeds $1.0 billion
- - Earned investment-grade ratings from Moody's, Standard & Poor's and
Duff & Phelps (Feb. 98)
- - Distributions totalled $1.68 for 1997, and annualized distribution rate
increased to $1.75 per share for 1998
- - FFO payout ratio decreased to 69 percent (1997Q4 annualized)
- - Lowest leverage of all seasoned industrial REITs
- - EBITDA-to-interest coverage: 6 to 1
- - Portfolio grew 52 percent, to 25 million square feet
- - Occupancy exceeds 97 percent
- - Significant expansion into Southeast Wisconsin
- - Completed the single largest industrial
property acquisition in the Greater Chicago region
- - Broke ground for the year's largest build-to-suit development in Illinois.
Financial Highlights
To Our Shareholders
2
<PAGE>
Our results in 1997 demonstrate the benefits of CenterPoint's franchise. This
has allowed us to more effectively execute our strategy of adding value to
our customers and shareholders through creative acquisition, development and
renovation of industrial property, combined with highly responsive property
management, and conservative financial policies.
1997 was CenterPoint's fifth consecutive year of achieving compound growth
greater than 50 percent. We added 8.9 million square feet to our property
portfolio -- at an average initial cash yield of 11.3 percent. This is
consistent with our returns in prior years and amongst the highest of all
REITs.
Due primarily to excess issuance of equity in our sector, the stock market
did not award CenterPoint's fundamental performance as much as in years past.
In 1997, shareholder return totaled only 14 percent (dividends reinvested).
However, since our December 1993 initial public offering, total shareholder
return has averaged 38 percent per annum, or a 152 percent total return.
This makes CenterPoint one of the few REITs to exceed the S&P 500's 32
percent average annual return during that period. We believe that REIT
equity issuance will slow down in 1998 - at least in percentage terms. We
can assure you that your truly outstanding group of employees will re-double
their efforts to maintain top tier performance.
1997 results
For 1997, funds from operation (FFO) increased 14.4 percent to $2.23 per
share on a fully diluted basis, compared to prior year results of $1.95 per
fully diluted share. At the same time, 1997 per share funds available for
distribution (FAD) grew 17 percent to $1.94, compared with $1.66 for 1996.
For the full year, net income increased 85 percent to $27.6 million in 1997,
up from net income of $14.9 million for the previous year. We also increased
our quarterly dividends for common shareholders to $1.75 per share annually
for 1998, from $1.68 per share in 1997. This reflects the company's
continuing strong results and management's positive outlook for sustained
growth and profitability. In 1998, our FFO payout ratio is expected to
approach the minimum permitted under federal REIT regulations, which means
that future dividends should increase in relation to our per-share FFO
growth. We also are proud to point out that it has been one year since
CenterPoint issued common equity, a rare feat among REITs with sustained
mid-teens per-share FFO/FAD growth and EBITDA-to-interest coverage in excess
of 6 to 1. Management and the Board will continue to be very sensitive to
dilution of your stake in CenterPoint.
How it happened
We attribute our above-average operating results to our disciplined strategic
focus on
3
<PAGE>
adding value to our customers and properties, which we believe, in turn,
generates a high degree of tenant satisfaction, and cash yields well above
our cost of capital. We work hard to continually strengthen our franchise
and organization -- to enhance our reputation and market penetration, and our
ability to assess risk.
As our franchise as Chicago's "Industrial Landlord of Choice" grows, we find
ample opportunities to add value, even while being very selective in our
investments. This approach is successful because the Greater Chicago Market
is so huge and diverse, as the cover of this report demonstrates. We operate
in the largest and most diverse industrial property market in the world.
Its opportunities, participants, risks and rewards are ever changing. But,
those who know its highways and byways well, find it constantly provides many
avenues for above-average growth. At the moment, these opportunities far
outweigh any potential benefits that CenterPoint might derive from expanding
into other smaller, less diverse markets.
Financial strategies
CenterPoint is sensitive to debt and equity capital costs, and has benefited
from innovative and well-timed capital markets strategies. These have helped
CenterPoint produce a low weighted average cost of capital and lowest
leverage of any seasoned REIT in the industrial sector. Our cost of capital
also benefits from a very low correlation to overall stock market volatility,
making our shares a particularily attractive investment in turbulent market
conditions. For instance in November, CenterPoint completed an offering of 3
million preferred shares, which generated $72.7 million without diluting
common shareholdings. And, in September, the company completed a $55 million
tax-exempt bond financing issued for O'Hare Express air freight development.
During the year, we also renegotiated our unsecured line of credit in such a
way as to significantly reduce interest expense and increase our flexibility
to recycle capital into higher yielding investments through the advantageous
disposition of properties.
We maintain a conservative balance sheet that combines substantial financial
capacity with flexibility. Our debt capacity exceeds $350 million. Along
with our now quite significant internally generated capital, it cushions us
greatly from capital market volatility while allowing us to respond quickly
to investment opportunities.
The success of these strategies was reflected in CenterPoint's earning
investment grade ratings from Moody's, Standard & Poor's and Duff & Phelps
(Feb. 98).
Value-added investments
During 1997, CenterPoint acquired or began build-to-suit (BTS) developments
that totaled 8.9 million square feet, which represented an investment of
$188.4 million. Among them were three precedent-setting events:
4
<PAGE>
- - a significant expansion into the Southeast Wisconsin submarkets,
- - the largest single industrial property acquisition ever made in the Chicago
market and
- - groundbreaking for the largest development of the year in the state of
Illinois. Our 1997 investments represented an average per square foot cost of
$21.2, and produced an average triple net rental rate of $2.39 per square
foot, for a weighted initial average cash yield of 11.3 percent. Of that
total, 1.6 million square feet, or $55.8 million, were BTS developments that
will come on line during 1998. In addition, during the year we completed 1.7
million square feet of additional BTS projects, representing an investment of
$93 million. At year-end 1997, the CenterPoint portfolio comprised
approximately 25 million square feet, a net addition of 52 percent.
In October, we made the largest single acquisition in the history of the
Chicago industrial property market -- the 1.75 million square foot General
Motors Electromotive facility in McCook, Illinois. It has been renamed
CenterPoint Business Center - McCook and will be redeveloped into a
state-of-the-art, multi-tenant, high cube industrial park.
Other significant 1997 investments include a 1.1 million square foot
acquisition in Aurora, Illinois which has been redeveloped and fully leased;
an 888,335 square foot warehouse in Elk Grove Village, Illinois leased
primarily to the U.S. Post Office; and an 812,000 square foot build-to-suit
warehouse in Granite City, Illinois for Dial Corporation, the largest
development of any type begun in the state of Illinois in 1997.
Management developments
During the second quarter of 1997, CenterPoint implemented part of a
succession plan prepared the previous year in anticipation of Robert
Stovall's retirement as Chief Operating Officer. Accordingly, former Chief
Investment Officer Mike Mullen was promoted to Chief Operating Officer, and
Paul Ahern was promoted to Senior Vice President, Director of Investments and
joined the Investment Committee. CenterPoint continues to grow its
organization to support its expanding franchise. In our Operations
Department, Stephen Schlader and Gregory Scott were named Senior Vice
Presidents. We also established a Wisconsin Regional Office in 1997 to
spearhead our expansion into that 230 million square foot submarket.
To more efficiently respond to an increased number of opportunities, we
expanded both the Investment Department and the Development Department. We
named Scott Zimmerman to the post of Chief Information Officer. He heads our
MIS Department and a wide-ranging program of ongoing systems development.
Outlook for growth
Despite CenterPoint's robust 1997, our portfolio represents only 2 percent of
the Greater Chicago industrial property market. Clearly, there is abundant
room for growth. We have projects in our pipeline that would represent $250
million of new investments, subject to due diligence and closing conditions.
5
<PAGE>
More broadly, we are finding that Corporate America is an expanding source of
investment possibilities for us. Our activities in recent years, serving
corporate tenants and sellers, have created awareness of the CenterPoint
brand name in that arena. Corporate trends to outsource logistics, as well
as real estate ownership, and to centralize distribution into regional hubs
signal continued opportunities for us. The fastest growing industrial
property use, currently, is air freight, an area that CenterPoint continues
to dominate at the world's busiest airport. CenterPoint believes that for real
estate companies with solid local experience, deep market penetration, and
the ability to respond with creative, tenant-driven solutions to industrial
occupancy needs, there will be considerable opportunities to add value
throughout all points of the economic cycle. In this environment, we believe
CenterPoint's local franchise, strategic focus and financial flexibility will
sustain significant growth for our shareholders.
Sincerely,
John S. Gates Jr.
President and Chief Executive Officer
March 10, 1998
The CenterPoint Franchise
The story was familiar: A tenant had outgrown its space. What was different
was the tenant was the for-profit, cost-conscious U.S. Postal Service. They
came to us for quick assistance for their Elk Grove Village sorting facility.
They got it. In four weeks, we completed a 83,045 square foot expansion.
"When we required critical space to serve our Christmas needs, the
CenterPoint team responded immediately by supplying not only 83,045 square
feet, but needed modifications such as new docks as well, all in a matter of
weeks rather than months", says Nick Klein, Manager, Real Estate Division at
the U.S. Postal Service.
The "Landlord of Choice" must put tenants first. CenterPoint does. Our
company-wide commitment to tenant satisfaction has fueled our growth: More
than half of our new business involves existing tenants. While our
portfolio has grown to 25 million square feet, our belief in "hands on"
intensive property management remains customer and property specific. We add
value to each facility, providing high-quality, attractive space at
competitive rates. Tenants benefit from our economies of scale and
specialized expertise in Chicago industrial property matters. Our deep market
penetration, flexible and
6
<PAGE>
creative approaches, and extensive financial resources allow us to constantly
meet tenants' evolving needs.
The industrial property market is a proven and consistent performer,
delivering one of the highest annual returns, particularly in relation to its
level of risk. Complete obsolescence is rare, and the renovation of
industrial facilities consumes much less capital than do other property
types. And industrial renovation delivers something else: It saves jobs.
CenterPoint's People Its Greatest Resource
Rehabbing a huge manufacturing plant can take years, but even redevelopment
can be fast tracked, as Fortune 500 steelmaker Wheeling Pittsburgh
discovered. In 87 days -- thanks to an excellent team and a detailed plan --
CenterPoint turned a 42,158 square foot. defense plant into the first-class
manufacturing facility Wheeling Corrugated needed for a new product line. The
new plant has three 30-ton overhead cranes and completely new electric
service, heating and lighting systems, new truck doors, floors, offices,
locker and lunch rooms.
"We understood what they needed, worked with them to develop a number of
refinements, and completely re-built the facility in less than three months,"
says Gregory Scott, Senior Vice President. Pleased with their new facility,
Wheeling Pittsburgh called CenterPoint for another project, their third.
At CenterPoint, we know where and how this region works. Our top managers
average 25 years of experience in the industrial real estate market. We
believe that we've built and leased more industrial space than any group in
the history of the area. Our tenant retention rate of 93 percent speaks to
our ability to find solutions to tenants' needs that benefit us all.
So it is not surprising that we get a "first look" at virtually every
transaction, and early access to many opportunities that never come to
market. With 18 investment and development professionals, we have far more
market coverage than any industrial property owner in our region. To make
sure we stay on top, we've expanded our Operations, Investment, Development
and MIS departments.
Our 1997 acquisition and redevelopment projects illustrate our deep market
knowledge, varied skill-sets, and our innovative approaches to meeting tenant
needs. Our approach is simple: We focus where we can add the most value for
tenants and shareholders.
Process and Systems Shape Success
Buildout continues at CenterPoint Business Center/Arlington Heights for Home
Depot's Midwest regional office. The company's national training center, "Cash
7
<PAGE>
Register College," moved into the facility in mid-1997, in the first phase of
a 100,000-square foot lease. CenterPoint acquired the property, a former
corporate campus, in 1996 after eight years of negotiations, and quickly
realized the large first-floor footprint and parking lot made this former
manufacturing plant ideal for conversion into office space.
"While the redevelopment is underway, we've also been able to accommodate
Home Depot's need for a phased-in occupancy," says CenterPoint's Jim Clewlow.
He and Sean Maher, each a Vice President of Acquisitions, meet often with
Home Depot's Director of Real Estate, Midwest Division, Stephen Leonard, to
keep the staged buildout on track.
Consistent action delivers consistent results. That is why CenterPoint
established, and strictly follows, strong financial policies and operating
procedures. These disciplines have paid off in stable earnings and steady
growth.
Since CenterPoint's founding in 1984, we have benefited from the "real
time" analysis made possible by our fully integrated property management,
accounting and corporate information systems. We track each investment
opportunity with the same precision, and often over the course of several
years.
We have always favored innovative approaches, and now, to prepare for
the next century, we are continuously making substantial improvements to our
state-of-the-art information systems. During 1997, we retained DeLoitte &
Touche to conduct a comprehensive review of our systems and processes, which
provided the foundation for developing a companywide electronic workflow
system. We anticipate enormous strategic benefits from our investment, which
assures that our capabilities remain well ahead of our current needs.
One product of these efforts is our web site, where company reports and
other information can be found: {www.centerpoint-prop.com}.
Implementing New Initiatives
CenterPoint developed its first build-to-suit in the fast-growing Southeast
Wisconsin market for General Thermodynamics (GTI), a division of Insilco
Corporation. To build the 123,200 square foot facility, CenterPoint acquired
a 9.1 acre site in The Franklin Business Park, a 425-acre corporate park
developed in part by the City of Franklin. As it frequently does for
metropolitan Chicago tenants, CenterPoint also acquired GTI's existing 40,400
square foot facility and will re-develop it.
"We worked closely with GTI to produce a design that is more efficient and
will help them better serve their customers and grow their business," says
Timothy M. Casey, Wisconsin Vice President, here with GTI General Manager
Matthew J. Connell.
8
<PAGE>
The most important of our new 1997 initiatives was focused in Southeast
Wisconsin. We responded to the immense opportunity there, and opened an
office in Milwaukee. We also grew our Wisconsin portfolio to more than 1
million square feet, and expect to pursue additional build-to-suits,
acquisitions and redevelopments throughout the region.
We have also identified opportunities to deliver other real estate-related
products to our 25 million square foot tenant base. For example, we now offer
"turn key" leases that cover property and equipment. This helps tenants
relocate and "be in business" faster and more efficiently. It also simplifies
administration and can be structured to maximize tax benefits.
We also are exploring new ways to leverage CenterPoint's franchise and to
extend our economies of scale to our tenants. Negotiating a "best price" for
utilities is just one tenant benefit we are implementing.
9
<PAGE>
EXHIBIT 23
CENTERPOINT PROPERTIES TRUST
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the inclusion in this Form 10-K and the incorporation by
reference in the registration statements of CenterPoint Properties Trust
(formerly CenterPoint Properties Corporation) on Form S-3 (Nos. 33-95792,
33-99858 and 333-18235), Form S-8/S-3 (File Nos. 333-05087 and 333-34687) and
Form S-8 (File No. 333-05141) of our report dated February 10, 1998, on our
audits of the consolidated financial statements and financial statement
schedules of CenterPoint Properties Trust and Subsidiaries as of December 31,
1997 and 1996, and for the three years in the period ended December 31, 1997,
which reports are included in this Annual Report on Form 10-K.
Coopers & Lybrand L.L.P.
Chicago, Illinois
March 18, 1998
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> DEC-31-1997
<CASH> 38,161
<SECURITIES> 0
<RECEIVABLES> 42,985
<ALLOWANCES> (272)
<INVENTORY> 0
<CURRENT-ASSETS> 21,107
<PP&E> 641,646
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<TOTAL-ASSETS> 699,275
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<BONDS> 270,735
40,414
3
<COMMON> 19
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<TOTAL-LIABILITY-AND-EQUITY> 699,275
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<TOTAL-REVENUES> 85,958
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<OTHER-EXPENSES> 0
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