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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): April 2, 1998
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CenterPoint Properties Trust
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(Exact name of registrant as specified in its charter)
Maryland 1-12630 36-3910279
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(State or other jurisdiction Commission File (I.R.S. Employer
of incorporation) Number Identification No.)
401 N. Michigan Avenue, Chicago, Illinois 60611
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(Address of principal executive offices)
Registrant's telephone number, including area code (312) 346-5600
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CenterPoint Properties Corporation
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(Former name or former address, if changed since last report.)
ITEM 5. OTHER EVENTS.
On December 19, 1996 CenterPoint Properties Corporation (the "Corporation")
filed a registration statement on Form S-3, Registration Statement No. 333-18235
(the "Original Registration Statement") with the Securities and Exchange
Commission (the "Commission") relating to the public offering, pursuant to Rule
415 under the Securities Act of 1933, as amended (the "1933 Act"), of up to an
aggregate of $200,000,000 in common shares, preferred shares, debt securities
and warrants of the Corporation. On January 6, 1997, the Commission declared
the Original Registration Statement effective. On October 15, 1997, the
Corporation was reorganized from a Maryland corporation to a Maryland real
estate investment trust by means of a merger of the Corporation with and into
CenterPoint Properties Trust (the "Company") with the Company as the surviving
entity. On October 15, 1997, the Company filed Post-Effective Amendment No. 1
to the Original Registration Statement (as amended, the "Registration
Statement") under which the Company adopted the Original Registration Statement
of the
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Corporation pursuant to Rule 414(d) of the 1933 Act. On October 23, 1997, the
Commission declared the Registration Statement effective. (The Registration
Statement and definitive prospectus contained therein are collectively referred
to as the "Prospectus.")
The Company is filing on the date hereof a supplement to the Prospectus,
dated April 2, 1998 (the "Supplement"), relating to the issuance and sale of
$100,000,000 aggregate principal amount of its 6-3/4% Senior Notes due 2005 (the
"Notes"). Lehman Brothers Inc., NationsBanc Montgomery Securities, LLC and
First Chicago Capital Markets, Inc. (collectively, the "Underwriters") have
acted as underwriters for the offering of Notes.
In connection with the filing of the Supplement with the Commission, the
Company is filing certain exhibits as part of this Form 8-K, including the
Underwriting Agreement relating to such offering. See "Item 7. Financial
Statements and Exhibits."
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits
1 Form of Underwriting Agreement dated April 2, 1998 between the
Company and the Underwriters.
4.6 Form of First Supplemental Indenture between the Company and
U.S. Bank Trust National Association, as trustee.
5 Opinion Letter of Ungaretti & Harris regarding the validity of
the Notes.
8 Opinion Letter of Ungaretti & Harris regarding tax matters.
12 Computation of Ratio of Earnings to Fixed Charges.
25 Statement of Eligibility of Trustee
23.1 Consent of Ungaretti & Harris (included as part of Exhibit 5)
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
CENTERPOINT PROPERTIES TRUST
(Registrant)
Dated: April 3, 1998 By: /s/ John S. Gates, Jr.
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John S. Gates, Jr.
President,
Chief Executive Officer, and
Trustee
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$100,000,000
CENTERPOINT PROPERTIES TRUST
UNDERWRITING AGREEMENT
63/4% Senior Notes due April 1, 2005
April 2, 1998
LEHMAN BROTHERS INC.
NATIONSBANC MONTGOMERY SECURITIES, LLC
FIRST CHICAGO CAPITAL MARKETS, INC.
c/o Lehman Brothers Inc.
3 World Financial Center
New York, New York 10285
Ladies and Gentlemen:
CenterPoint Properties Trust, a Maryland real estate investment
trust (the "Company"), proposes to sell to the Underwriters named in Schedule
I hereto (collectively, the "Underwriters") $100,000,000 aggregate principal
amount of 63/4% Senior Notes due April 1, 2005 (the "Notes"). The Notes will
be issued pursuant to an Indenture to be dated as of the Delivery Date
referred to in Section 4 hereof (the "Base Indenture"), between the Company
and U.S. Bank Trust National Association, as trustee (the "Trustee"), and a
Supplemental Indenture thereto to be dated as of the Delivery Date (the
"Supplemental Indenture" and, together with the Base Indenture, the
"Indenture"), between the Company and the Trustee. This is to confirm the
agreement concerning the purchase of the Notes from the Company by the
Underwriters.
Capitalized Terms used but not otherwise defined herein shall have
the meanings given to those terms in the Prospectus (as herein defined).
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. The
Company represents, warrants and agrees that:
(a) A registration statement (File No. 333-18235) on Form S-3,
and one or more amendments thereto, with respect to the securities registered
thereunder
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(the "Shelf Securities") to be issued from time to time (i) have been
prepared by the Company in conformity with the requirements of the Securities
Act of 1933, as amended (the "Securities Act") and the rules and regulations
(the "Rules and Regulations") of the Securities and Exchange Commission (the
"Commission") promulgated thereunder, (ii) have been filed with the
Commission under the Securities Act and (iii) have become effective under the
Securities Act. Copies of such registration statement and the amendments
thereto have been delivered by the Company to you. As used in this
Agreement, "Effective Time" means the dates and the times as of which such
registration statement, or the most recent post-effective amendment thereto,
if any, were declared effective by the Commission; "Effective Date" means the
dates of the Effective Time. The registration statement as amended to the
date of this Agreement is hereinafter referred to as the "Registration
Statement" and the related prospectus covering the Shelf Securities in the
form first used to confirm sales of the Notes is hereinafter referred to as
the "Basic Prospectus." The Basic Prospectus as supplemented by the
prospectus supplement specifically relating to the Notes in the form first
filed pursuant to Rule 424 of the Rules and Regulations ("Rule 424") is
hereinafter referred to as the "Prospectus." Any reference in this Agreement
to the Registration Statement, the Basic Prospectus, any preliminary form of
Prospectus (a "preliminary prospectus") previously filed with the Commission
pursuant to Rule 424 or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the Securities Act which were filed under the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Commission promulgated thereunder (collectively, the "Exchange Act") on or
before the date of this Agreement or the date of the Basic Prospectus, any
preliminary prospectus or the Prospectus, as the case may be; and any
reference to "amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any preliminary prospectus or
the Prospectus shall be deemed to refer to and include any documents filed
under the Exchange Act after the date of this Agreement, or the date of the
Basic Prospectus, any preliminary prospectus or the Prospectus, as the case
may be, which are deemed to be incorporated by reference therein. The
Commission has not issued any order pre-
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venting or suspending the use of any preliminary prospectus.
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Securities
Act or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
and any further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission, as the case may
be, will conform in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary or make the statements therein not misleading; provided, however,
no representation or warranty is made as to any statements or omissions made
in reliance upon and in conformity with written information furnished to the
Company by or on behalf of any Underwriter specifically for inclusion therein.
(c) The Registration Statement conforms, and the Prospectus
and any further amendments or supplements to the Registration Statement or
the Prospectus will, when they become effective or are filed with the
Commission, as the case may be, conform in all respects to the requirements
of the Securities Act and the Rules and Regulations and do not and will not,
as of the applicable effective date (as to the Registration Statement and any
amendment thereto) and as of the applicable filing date (as to the Prospectus
and any amendment or supplement thereto) contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; PROVIDED that no
representation or warranty is made as to information contained in or omitted
from the Registration Statement or the Prospectus in reliance upon and in
conformity with written informa-
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tion furnished to the Company by or on behalf of any Underwriter specifically
for inclusion therein.
(d) The Company and each of its subsidiaries have been duly
incorporated and are validly existing as corporations in good standing under
the laws of their respective jurisdictions of incorporation, are duly
qualified to do business and are in good standing in each jurisdiction in
which the laws of such jurisdiction require such qualification, and have all
power and authority necessary to own or hold their respective properties and
to conduct the businesses in which they are engaged; and none of the
subsidiaries of the Company is a "significant subsidiary", as such term is
defined in Rule 405 of the Rules and Regulations.
(e) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are fully paid and
non-assessable and conform to the description thereof contained in the
Prospectus; and all of the issued shares of capital stock of each subsidiary
of the Company have been duly and validly authorized and issued and are fully
paid and non-assessable and except as set forth in the Prospectus are owned
directly or indirectly by the Company as described in the Prospectus, free
and clear of all liens, encumbrances, equities or claims.
(f) The Notes have been duly and validly authorized and, when
duly executed by the proper officers of the Company, issued and delivered by
the Company, and authenticated by the Trustee pursuant to the provisions of
the Indenture and delivered against payment therefor as provided in this
Agreement, will constitute valid and legally binding obligations of the
Company, enforceable against the Company in accordance with their terms. The
Notes, when issued and delivered, will conform to the descriptions thereof
contained in the Prospectus.
(g) The Indenture has been duly authorized by the Company, and
when duly executed by the proper officers of the Company (assuming due
execution and delivery by the Trustee) and delivered by the Company, will
constitute a valid and legally binding obligation of the Company, enforceable
against the Company in accordance with its terms.
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(h) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes the valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms;
the execution, delivery and performance of this Agreement and the Indenture
by the Company and the consummation of the transactions contemplated hereby
and thereby and the issuance and delivery of the Notes have been duly
authorized by all necessary corporate action and did not and will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any of the properties or
assets of the Company or any of its subsidiaries pursuant to any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the property
or assets of the Company or any of its subsidiaries is subject, nor did or
will such actions result in any violation of the provisions of the
declaration of trust or charter, as the case may be, or by-laws of the
Company or any of its subsidiaries or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Company or any of its subsidiaries or any of their properties or
assets; except for the registration of the Notes under the Securities Act and
such consents, approvals, authorizations, registrations or qualifications as
may be required under the Exchange Act and applicable state securities laws
in connection with the purchase and distribution of the Notes by the
Underwriters, no consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body was or is
required for the execution, delivery and performance of this Agreement by the
Company and the consummation of the transactions contemplated hereby.
(i) Except as disclosed in the Registration Statement, there
are no contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company or any
subsidiary of the Company to file a registration statement under the
Securities Act with respect to any securities of the Company or any
subsidiary of the Company owned or to be owned by such person or to require
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the Company to include such securities in the securities registered pursuant
to the Registration Statement or in any securities being registered pursuant
to any other registration statement filed by the Company under the Securities
Act.
(j) Neither the Company nor any of its subsidiaries has
sustained, since the date of the latest audited financial statements included
or incorporated by reference in the Prospectus, any material loss or
interference with its business from fire, explosion, flood, earthquake or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as
set forth or contemplated in the Prospectus; and, since such date, there has
not been any change in the capital stock or long-term debt of the Company or
any of its subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the general
affairs, management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set forth
or contemplated in the Prospectus.
(k) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or included
or incorporated by reference in the Prospectus present fairly the financial
condition and results of operations of the entities purported to be shown
thereby, at the dates and for the periods indicated, and have been prepared
in conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved.
(l) Coopers & Lybrand, who have certified certain financial
statements of the Company and whose report appears in the Prospectus, are
independent public accountants as required by the Securities Act and the
Rules and Regulations.
(m) (i) The Company and each of its subsidiaries have good
and marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them, in each case free
and clear of all liens, encumbrances and defects except such as are described
in the Prospectus or such as do not materially affect the value of such
property and do not
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materially interfere with the use made and proposed to be made of such
property by the Company and its subsidiaries; (ii) all real property and
buildings held under lease by the Company and its subsidiaries are held by
them under valid, subsisting and enforceable leases, with such exceptions as
are not material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company and its subsidiaries;
(iii) all liens, charges, encumbrances, claims, or restrictions on or
affecting the properties and assets of any of the Company or its subsidiaries
which are required to be disclosed in the Prospectus are disclosed therein;
(iv) neither the Company nor any of its subsidiaries is in default under any
of the leases pursuant to which any of the Company or its subsidiaries leases
its properties and neither the Company nor any of its subsidiaries knows of
any event which, but for the passage of time or the giving of notice, or
both, would constitute a default under any of such leases; (v) except as
described in the Prospectus, no tenant under any of the leases pursuant to
which any of the Company or its subsidiaries leases properties has an option
or right of first refusal to purchase the premises under such lease; (vi)
each of the properties of any of the Company or its subsidiaries complies
with all applicable codes and zoning laws and regulations, except for such
failures to comply which would not individually or in the aggregate have a
material adverse effect on the consolidated financial position, stockholders'
equity, results of operations, business or prospects of the Company and its
subsidiaries; and (vii) neither the Company nor any of its subsidiaries has
knowledge of any pending or threatened condemnation, zoning change, or other
proceeding or action that will in any manner affect the size of, use of,
improvements on, construction on or access to the properties of any of the
Company or its subsidiaries.
(n) The Company and each of its subsidiaries carry, or are
covered by, insurance in such amounts and covering such risks as is adequate
for the conduct of their respective businesses and the value of their
respective properties and as is customary for companies engaged in similar
businesses in similar industries.
(o) The Company and each of its subsidiaries own or possess
adequate rights to use all material
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patents, patent applications, trademarks, service marks, trade names,
trademark registrations, service mark registrations, copyrights and licenses
necessary for the conduct of their respective businesses and have no reason
to believe that the conduct of their respective businesses will conflict
with, and have not received any notice of any claim of conflict with, any
such rights of others.
(p) There are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which any
property or assets of the Company or any of its subsidiaries is the subject
which, if determined adversely to the Company or any of its subsidiaries,
might have a material adverse effect on the consolidated financial position,
stockholders' equity, results of operations, business or prospects of the
Company and its subsidiaries; and to the best of the Company's knowledge, no
such proceedings are threatened or contemplated by governmental authorities
or threatened by others.
(q) There are no contracts or other documents which are
required to be described in the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act or by the Rules and Regulations
which have not been described in the Prospectus or filed as exhibits to the
Registration Statement or incorporated therein by reference as permitted by
the Rules and Regulations.
(r) No relationship, direct or indirect, exists between or
among the Company on the one hand, and the directors, officers or
stockholders of the Company on the other hand, which is required to be
described in the Prospectus which is not so described.
(s) No labor disturbance by the employees of the Company
exists or, to the knowledge of the Company, is imminent which might be
expected to have a material adverse effect on the consolidated financial
position, stockholders' equity, results of operations, business or prospects
of the Company and its subsidiaries.
(t) The Company is in compliance in all material respects with
all presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and published
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interpretations thereunder ("ERISA"); no "reportable event" (as defined in
ERISA) has occurred with respect to any "pension plan" (as defined in ERISA)
for which the Company would have any liability; the Company has not incurred
and does not expect to incur liability under (i) Title IV of ERISA with
respect to termination of, or withdrawal from, any "pension plan" or (ii)
Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended,
including the regulations and published interpretations thereunder (the
"Code"); and each "pension plan" for which the Company would have any
liability that is intended to be qualified under Section 401(a) of the Code
is so qualified in all material respects and nothing has occurred, whether by
action or by failure to act, which would cause the loss of such qualification.
(u) The Company has filed all federal, state and local income
and franchise tax returns required to be filed through the date hereof and
has paid all taxes due thereon, and no tax deficiency has been determined
adversely to the Company or any of its subsidiaries, which has had (nor does
the Company have any knowledge of any tax deficiency which, if determined
adversely to the Company or any of its subsidiaries, might have) a material
adverse effect on the consolidated financial condition, stockholders' equity,
results of operations, business or prospects of the Company and its
subsidiaries.
(v) Since the date as of which information is given in the
Prospectus through the date hereof, and except as may otherwise be disclosed
in the Prospectus, the Company has not (i) issued or granted any securities,
(ii) incurred any liability or obligation, direct or contingent, other than
liabilities and obligations which were incurred in the ordinary course of
business, (iii) entered into any transaction not in the ordinary course of
business or (iv) declared or paid any dividend on its capital stock.
(w) The Company (i) makes and keeps accurate books and records
and (ii) maintains internal accounting controls which provide reasonable
assurance that (A) transactions are executed in accordance with management's
authorization, (B) transactions are recorded as necessary to permit
preparation of its financial statements and to maintain accountability for
its assets,
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(C) access to its assets is permitted only in accordance with management's
authorization and (D) the reported accountability for its assets is compared
with existing assets at reasonable intervals.
(x) Neither the Company nor any of its subsidiaries (i) is in
violation of its declaration of trust or charter, as the case may be, or
by-laws, (ii) is in default in any material respect, and no event has
occurred which, with notice or lapse of time or both, would constitute such a
default, in the due performance or observance of any term, covenant or
condition contained in any material indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party or by which
it is bound or to which any of its properties or assets is subject or (iii)
is in violation in any material respect of any law, ordinance, governmental
rule, regulation or court decree to which it or its property or assets may be
subject or has failed to obtain any material license, permit, certificate,
franchise or other governmental authorization or permit necessary to the
ownership of its property or to the conduct of its business.
(y) Neither the Company nor any of its subsidiaries, nor any
director, officer, agent, employee or other person associated with or acting
on behalf of the Company or any of its subsidiaries, has used any corporate
funds for any unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity; made any direct or indirect unlawful
payment to any foreign or domestic government official or employee from
corporate funds; violated or is in violation of any provision of the Foreign
Corrupt Practices Act of 1977; or made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment.
(z) There has been no storage, disposal, generation,
manufacture, refinement, transportation, handling or treatment of any
material by the Company or any of its subsidiaries or, to the Company's
knowledge, any of their predecessors in interest at, upon or from any of the
properties now or previously owned or leased by the Company or its
subsidiaries or any of their predecessors in interest in violation of any
applicable law, ordinance, rule, regulation, order, judgment, decree or
permit or which would require remedial action damages or
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the modification or cessation of any activity of the Company or any of its
subsidiaries under any applicable law, common law, ordinance, rule,
regulation, order, judgment, decree or permit, except for any violation,
remedial action, damages, modification or cessation which would not have,
singly or in the aggregate with all such violations, remedial actions,
damages, modifications or cessations, a material adverse effect on the
general affairs, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries; and there has been
no material spill, discharge, leak, emission, injection, escape, dumping,
migration or release of any kind onto such property or into the environment
surrounding such property except for any such spill, discharge, leak,
emission, injection, escape, dumping or release which would not have, singly
or in the aggregate with all such spills, discharges, leaks, emissions,
injections, escapes, dumpings and releases, a material adverse effect on the
general affairs, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries.
(aa) Neither the Company nor any subsidiary is an "investment
company" within the meaning of such term under the Investment Company Act of
1940 and the rules and regulations of the Commission promulgated thereunder.
(ab) The Company is organized in conformity with the
requirements for qualification as a real estate investment trust under the
Code, and its present and contemplated method of operation does and will
enable it to meet the requirements for taxation as a real estate investment
trust ("REIT") under the Code for the year ended December 31, 1994 and
subsequent taxable years.
(ac) Each of the Company and its subsidiaries has title
insurance on all properties and assets described in the Prospectus as owned
by such party in an amount at least equal to the greater of (a) the cost of
acquisition of such property or assets and (b) the cost of construction of
the improvements located on such properties.
(ad) Neither the BBB- nor baa2 senior debt rating assigned to
the Company by Standard & Poor's
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Corporation and by Moody's Investor Services, Inc., respectively, has been
lowered or, to the Company's knowledge, threatened to be lowered by either
such rating agency nor, to the Company's knowledge, has it been placed under
surveillance or review, for the purpose of lowering such ratings, by either
such rating agency.
2. PURCHASE OF THE NOTES BY THE UNDERWRITERS. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell to the several
Underwriters and each of the Underwriters, severally and not jointly, agrees
to purchase the respective principal amount of Notes set opposite such
Underwriter's name in Schedule I hereto at a purchase price equal to 98.938%
of the principal amount of such Notes.
The Company shall not be obligated to deliver any of the Notes to
be delivered on the Delivery Date (as hereinafter defined) except upon
payment for all the Notes to be purchased on the Delivery Date as provided
herein.
3. OFFERING OF NOTES BY THE UNDERWRITERS. The several
Underwriters propose to offer the Notes for sale upon the terms and
conditions set forth in the Prospectus.
4. DELIVERY OF AND PAYMENT FOR THE NOTES. Delivery of and payment
for the Notes shall be made at such place as shall be determined by agreement
between the Underwriters and the Company at 10:00 A.M., New York City time,
on the fourth full business day following the date of this Agreement or at
such other date as shall be determined by agreement between the Underwriters
and the Company. This date and time are sometimes referred to as the
"Delivery Date." On the Delivery Date, the Company shall deliver or cause to
be delivered certificates representing the Notes to the Underwriters against
payment to or upon the order of the Company of the purchase price by wire
transfer in federal or same day funds. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement is a
further condition of the obligation of each Underwriter hereunder. Upon
delivery, the Notes shall be registered in such names and in such
denominations as the Underwriters shall request in writing not less than two
full
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business days prior to the Delivery Date. For the purpose of expediting the
checking and packaging of the certificates for the Notes, the Company shall
make the certificates representing the Notes available for inspection by the
Underwriters in New York, New York, not later than 2:00 P.M., New York City
time, on the business day prior to the Delivery Date.
5. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees:
(a) To prepare the Prospectus in a form approved by the
Underwriters and to file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than the Commission's close of business on the
second business day following the execution and delivery of this Agreement;
to make no further amendment or any supplement to the Registration Statement
or to the Prospectus except as permitted herein; to advise the Underwriters,
promptly after it receives notice thereof, of the time when any amendment to
the Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed and to
furnish the Underwriters with copies thereof; to advise the Underwriters,
promptly after it receives notice thereof, of the issuance by the Commission
of any stop order or of any order preventing or suspending the use of any
preliminary prospectus or the Prospectus, of the suspension of the
qualification of the Notes for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the
Registration Statement or the Prospectus or for additional information; and,
in the event of the issuance of any stop order or of any order preventing or
suspending the use of any preliminary prospectus or the Prospectus or
suspending any such qualification, to use promptly its best efforts to obtain
its withdrawal;
(b) To furnish promptly to each of the Underwriters upon their
request and to counsel for the Underwriters a signed copy of the Registration
Statement as originally filed with the Commission, and each amendment thereto
filed with the Commission, including all consents and exhibits filed
therewith;
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(c) To deliver promptly to the Underwriters such number of the
following documents as the Underwriters shall request: (i) conformed copies
of the Registration Statement as originally filed with the Commission and
each amendment thereto (in each case excluding exhibits other than this
Agreement and the computation of per share earnings), (ii) each preliminary
prospectus, the Prospectus and any amended or supplemented Prospectus and
(iii) any document incorporated by reference in the Prospectus (excluding
exhibits thereto) for 90 days from the Delivery Date; and, if the delivery of
a prospectus is required at any time prior to the expiration of nine months
after the Effective Time in connection with the offering or sale of the Notes
and if at such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue statement
of a material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary in the opinion of counsel to the
Underwriters during such same period to amend or supplement the Prospectus in
order to comply with the Securities Act or the Exchange Act, to notify the
Underwriters and, upon their request, to prepare and furnish without charge
to each Underwriter and to any dealer in securities as many copies as the
Underwriters may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance, and in case any Underwriter
is required to deliver a prospectus in connection with sales of any of the
Notes at any time nine months or more after the Effective Time, upon the
request but at the expense of such Underwriter, to prepare and deliver to
such Underwriter as many copies as such Underwriter may request of an amended
or supplemented Prospectus complying with section 10(a)(3) of the Securities
Act;
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the Prospectus
that may, in the judgment of the Company or the Underwriters, be required by
the Securities Act or requested by the Commission;
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(e) Prior to filing with the Commission (i) any amendment
to the Registration Statement or supplement to the Prospectus or (ii)
any Prospectus pursuant to Rule 424 of the Rules and Regulations, to
furnish a copy thereof to the Underwriters and counsel for the
Underwriters and obtain the consent of the Underwriters to the filing;
(f) As soon as practicable after the Effective Date, but in
any event not later than 45 days after the end of its fiscal quarter in which
the first anniversary date of the Effective Date occurs, to make generally
available to the Company's security holders and to deliver to the
Underwriters an earnings statement of the Company and its subsidiaries (which
need not be audited) complying with Section 11(a) of the Securities Act and
the Rules and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date,
to furnish to the Underwriters copies of all materials furnished by the
Company to its shareholders and all public reports and all reports and
financial statements furnished by the Company to the principal national
securities exchange upon which the Notes may be listed pursuant to
requirements of or agreements with such exchange or to the Commission
pursuant to the Exchange Act or any rule or regulation of the Commission
thereunder;
(h) Promptly from time to time, to take such action as the
Underwriters may reasonably request to qualify the Notes for offering and
sale under the securities laws of such jurisdictions as the Underwriters may
request and to comply with such laws so as to permit the continuance of sales
and dealings therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Notes; except that in no event shall the
Company be obligated in connection therewith to qualify as a foreign
corporation, or to execute a general consent to service of process;
(i) To apply the net proceeds from the sale of the Notes being
sold by the Company as set forth in the Prospectus;
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(j) To take such steps as shall be necessary to ensure that
neither the Company nor any subsidiary shall become an "investment company"
within the meaning of such term under the Investment Company Act of 1940 and
the rules and regulations of the Commission thereunder;
(k) During the period of 180 days commencing on the date
hereof, the Company will not, directly or indirectly, take any action
designed to or which will constitute or which might reasonably be expected to
cause or result in the manipulation or stabilization of the price of the
Notes; and
(l) To file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
for so long as the delivery of a prospectus is required in connection with
the offering or sale of the Notes.
6. EXPENSES. The Company agrees to pay (a) the costs incident to
the authorization, issuance, sale and delivery of the Notes and any taxes
payable in that connection; (b) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement
and any amendments and exhibits thereto; (c) the costs of distributing the
Registration Statement as originally filed and each amendment thereto and any
post-effective amendments thereof (including, in each case, exhibits), any
preliminary prospectus, the Prospectus and any amendment or supplement to the
Prospectus, all as provided in this Agreement; (d) the costs of reproducing
and distributing this Agreement; (e) the costs of distributing the terms of
the agreement relating to the organization of the underwriting syndicate and
selling group to the members thereof by mail, telex or other means of
communication; (f) the filing fees incident to securing any required review
by the National Association of Securities Dealers, Inc. of the terms of sale
of the Notes; (g) any applicable listing or other fees; (h) the fees and
expenses of qualifying the Notes under the securities laws of the several
jurisdictions as provided in Section 5(h) and of preparing, printing and
distributing a Blue Sky Memorandum (including related fees and expenses of
counsel to the Underwriters); and (i) all other costs and expenses incident
to the perfor-
16
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mance of the obligations of the Company under this Agreement; PROVIDED that,
except as provided in this Section 6, Section 8 and Section 11, the
Underwriters shall pay their own costs and expenses, including the costs and
expenses of their counsel, any transfer taxes on the Notes which they may
sell and the expenses of advertising any offering of the Notes made by the
Underwriters.
7. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when
made and on the Delivery Date, of the representations and warranties of the
Company contained herein, to the performance by the Company of its
obligations hereunder, and to each of the following additional terms and
conditions:
(a) The Prospectus shall have been timely filed with the
Commission in accordance with Section 5(a); no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and any request of the Commission for inclusion
of additional information in the Registration Statement or the Prospectus or
otherwise shall have been complied with.
(b) No Underwriter shall not have been advised by the Company
nor shall it have discovered and disclosed to the Company on or prior to the
Delivery Date that the Registration Statement or the Prospectus or any
amendment or supplement thereto contains an untrue statement of a fact which,
in your opinion or in the opinion of Skadden, Arps, Slate, Meagher & Flom
LLP, counsel for the Underwriters, is material or omits to state a fact
which, in the opinion of such counsel, is material and is required to be
stated therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the Indenture, the
Notes, the Registration Statement and the Prospectus, and all other legal
matters relating to this Agreement the Indenture, and the transactions
contemplated hereby and thereby shall be satisfactory in all respects to
counsel for the Underwriters, and the Company shall have furnished to such
counsel all documents and information that they may
17
<PAGE>
reasonably request to enable them to pass upon such matters.
(d) Ungaretti & Harris shall have furnished to the
Underwriters its written opinion, as counsel to the Company, addressed to the
Underwriters and dated the Delivery Date, in form and substance satisfactory
to the Underwriters, to the effect that:
(i) Each of the Company and its subsidiaries has
been duly incorporated and is validly existing and in good standing
under the laws of their respective jurisdictions of organization, each
is duly qualified to transact business as a foreign corporation and is
in good standing under the laws of all other jurisdictions in which the
laws of such jurisdictions require such qualification, except where the
failure to be so qualified does not amount to a material liability or
disability to the Company and the subsidiaries, taken as a whole, and
each has all power and authority necessary to own or lease its
properties and conduct its business as described in the Registration
Statement and the Prospectus;
(ii) The Company has an authorized capitalization as
set forth in the Prospectus, and all of the issued shares of capital
stock of the Company have been duly and validly authorized and issued,
are fully paid and non-assessable and conform to the description thereof
contained in the Prospectus; and all of the issued shares of capital
stock of each subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and, except for
CenterPoint Realty Services Corporation, an Illinois corporation, and
its subsidiaries, are majority-owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims;
(iii) The Registration Statement was declared
effective under the Securities Act as of the date and time specified in
such opinion, and, to our knowledge after due inquiry,
18
<PAGE>
no stop order suspending the effectiveness of the Registration
Statement, and no order directed at any amendment or supplement thereto
has been issued and no proceeding for that purpose have been instituted
or threatened or are contemplated by the Commission;
(iv) Except as described in the Prospectus, there
are no preemptive rights or other rights to subscribe for or to
purchase, nor any restriction upon transfer of, any Notes pursuant to
the Company's declaration of trust or by-laws or any agreement or other
instrument known to such counsel;
(v) To the best of such counsel's knowledge, (A)
there are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any property
or assets of the Company or any of its subsidiaries is the subject
which, if determined adversely to the Company or any of its
subsidiaries, might have a material adverse effect on the consolidated
financial position, stockholders' equity, results of operations,
business or prospects of the Company and its subsidiaries, and (B) no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(vi) The Registration Statement and the Prospectus,
including the documents incorporated by reference in the Prospectus, (in
each case, not including the financial statements and related schedules
therein, as to which such counsel need express no opinion) comply as to
form in all material respects with the requirements of the Securities
Act or the Exchange Act and the Rules and Regulations thereunder;
(vii) This Agreement has been duly authorized,
executed and delivered by the Company;
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<PAGE>
(viii) The Indenture has been duly authorized,
executed and delivered by the Company and (assuming due execution and
delivery by the Trustee) constitutes a valid and legally binding
agreement on the part of the Company enforceable against the Company in
accordance with its terms, except that the enforceability thereof may be
limited by or subject to (a) bankruptcy, insolvency, reorganization,
fraudulent conveyance or transfer, moratorium or similar laws now or
hereafter in effect relating to creditors' rights generally and (b)
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or equity); and the Indenture has been
qualified under the Trust Indenture Act;
(ix) The Notes have been duly authorized, executed,
issued and delivered by the Company, and when authenticated in
accordance with the terms of the Indenture and delivered to and paid for
by the Underwriters in accordance with the terms of this Agreement, will
constitute valued and legally binding obligations of the Company
entitled to the benefits provided by the Indenture, enforceable in
accordance with their terms, except that the enforceability thereof may
be limited by or subject to (a) bankruptcy, insolvency, reorganization,
fraudulent conveyance or transfer, moratorium or similar laws now or
hereafter in effect relating to creditors' rights generally and (b)
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or equity); and the Indenture has been
qualified under the Trust Indenture Act;
(x) the Indenture and the Notes conform in all
material respects to the descriptions thereof in the Registration
Statement and the Prospectus under the captions "Description of the
Notes" and "Description of Debt Securities."
20
<PAGE>
(xi) The statements contained in the Prospectus
under the captions "Description of the Notes", "Federal Income Tax
Considerations", "Description of Debt Securities", "Description of
Shares of Beneficial Interest", "Description of Securities Warrants",
"Certain Provisions of Maryland Law and of the Company's Declaration of
Trust and Bylaws" and "Federal Income Tax Considerations Relating to the
Company's REIT Election", in each case insofar as they constitute
summaries of legal matters, documents or proceedings, constitute a fair
summary thereof and the opinion of such counsel filed as Exhibit 8 to
the Registration Statement is confirmed and the Underwriters may rely
upon such opinion as if it were addressed to them;
(xii) To the best of such counsel's knowledge, there
are no contracts or other documents which are required to be described
in the Prospectus or filed as exhibits to the Registration Statement by
the Securities Act or by the Rules and Regulations thereunder which have
not been described or filed as exhibits to the Registration Statement or
incorporated therein by reference as permitted by the Rules and
Regulations;
(xiii) Except as disclosed in the Registration
Statement, to the best of such counsel's knowledge, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to any
securities of the Company owned or to be owned by such person or to
require the Company to include such securities in the securities
registered pursuant to the Registration Statement or in any securities
being registered pursuant to any other registration statement filed by
the Company under the Securities Act;
(xiv) Neither the Company nor any subsidiary is an
"investment company" within the meaning of such term under the United
21
<PAGE>
States Investment Company Act of 1940 and the rules and regulations of
the Commission thereunder;
(xv) The issue and sale of the Notes being sold
pursuant to this Agreement and the compliance by the Company and its
subsidiaries with all of the provisions of this Agreement and the
Indenture and the consummation of the transactions contemplated hereby
and thereby have been duly authorized by all necessary corporate action
and did not and will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any of the properties or assets of the Company or any
of its subsidiaries pursuant to any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to such counsel to
which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject,
nor did or will such actions result in any violation of the provisions
of the declaration of trust or by-laws of the Company or any of its
subsidiaries or any statute or any order, rule or regulation known to
such counsel of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their
properties or assets; and, except for the registration of the Notes
under the Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Exchange
Act and applicable state securities laws in connection with the purchase
and distribution of the Notes by the Underwriters, no consent, approval,
authorization or order of, or filing or registration with, any such
court or governmental agency or body was or is required for the
execution, delivery and performance of this Agreement by the Company and
the consummation of the transactions contemplated hereby;
22
<PAGE>
In rendering such opinion, such counsel may rely as to matters of Maryland
law on the opinion of Gordon, Feinblatt, Rothman, Hoffberger & Hollander,
LLC, which opinion shall be in form and substance satisfactory to counsel for
the Underwriters, PROVIDED that such counsel shall state that it believes
that both the Underwriters and it are justified in relying upon such opinion.
Such counsel shall also have furnished to the Underwriters a written
statement, addressed to the Underwriters and dated the Delivery Date, in form
and substance reasonably satisfactory to the Underwriters, to the effect that
no facts have come to the attention of such counsel which lead it to believe
that the Registration Statement, as of the Effective Date and as of the
Delivery Date, contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary in order
to make the statements therein not misleading, or that the Prospectus, as of
the Delivery Date and at the time such Prospectus was issued, contains any
untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(e) Skadden, Arps, Slate, Meagher & Flom LLP shall have
furnished to the Underwriters its written opinion, as counsel to the
Underwriters, addressed to the Underwriters and dated the Delivery Date, in
form and substance satisfactory to the Underwriters. In giving its opinion,
Skadden, Arps, Slate, Meagher & Flom LLP may rely as to matters of Maryland
law on the opinion of Gordon, Feinblatt, Rothman, Hoffberger & Hollander,
LLC, which opinion shall be in form and substance satisfactory to counsel for
the Underwriters. Skadden, Arps, Slate, Meagher & Flom LLP shall also have
furnished to the Underwriters a written statement, addressed to the
Underwriters and dated the Delivery Date, in form and substance satisfactory
to the Underwriters, to the effect that no facts have come to the attention
of such counsel which lead it to believe that the Registration Statement, as
of the Effective Date and as of the Delivery Date, contained any untrue
statement of a material fact or omitted to state a material fact required to
be stated therein or necessary in order to make the statements therein not
misleading, or that the Prospectus, as of the Delivery Date and at the time
such Prospectus was issued,
23
<PAGE>
contains any untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(f) The Company shall have furnished to the Underwriters a
letter (the "bring-down letter") of Coopers & Lybrand, addressed to the
Underwriters and dated the Delivery Date (i) confirming that they are
independent public accountants within the meaning of the Securities Act and
are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, (ii) stating, as of the date of the bring-down letter (or, with
respect to matters involving changes or developments since the respective
dates as of which specified financial information is given or incorporated by
reference in the Prospectus, as of a date not more than five days prior to
the date of the bring-down letter), the conclusions and findings of such firm
with respect to the financial information and other matters covered by its
letter (the "initial letter") delivered to the Underwriters concurrently with
the execution of this Agreement and (iii) confirming in all material respects
the conclusions and findings set forth in the initial letter.
(g) The Company shall have furnished to the Underwriters a
certificate, dated the Delivery Date, of its Chairman of the Board, its
President or a Vice President and its chief financial officer stating that:
(i) The representations, warranties and agreements
of the Company in Section 1 are true and correct as of the Delivery
Date; the Company has complied with all its agreements contained herein;
and the conditions set forth in Sections 7(a), 7(h) and 7(j) have been
fulfilled;
(ii) No stop order suspending the effectiveness of
the Registration Statement has been issued and, to the best of each such
officer's knowledge, no proceeding for that purpose is pending or
threatened by the Commission;
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<PAGE>
(iii) All filings required by Rule 424(b) of the Rules
and Regulations have been made; and
(iv) They have carefully examined the Registration
Statement and the Prospectus and, in their opinion (A) as of the
Effective Date, the Registration Statement and Prospectus did not
include any untrue statement of a material fact and did not omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading, and (B) since the Effective Date
no event has occurred which should have been set forth in a supplement
or amendment to the Registration Statement or the Prospectus which has
not been so set forth.
(h) (i) Neither the Company nor any of its subsidiaries
shall have sustained since the date of the latest audited financial
statements included in the Prospectus any loss or interference with its
business from fire, explosion, flood, earthquake or other calamity,
whether or not covered by insurance, or from any labor dispute or court
or governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; (ii) since such date there shall not
have been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus, or (iii) trading in any Company
securities has not been suspended by the Commission or the New York
Stock Exchange (the "NYSE"), the effect of which, in any such case
described in clause (i), (ii) or (iii), is, in the judgment of the
Underwriters, so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Notes being delivered on the Delivery Date on the terms and in the
manner contemplated in the Prospectus.
(i) Subsequent to the execution and delivery of this
Agreement there shall not have occurred any of the following: (i)
trading in securities generally
25
<PAGE>
on the NYSE, the American Stock Exchange or the
over-the-counter market shall have been suspended or minimum prices
shall have been established on either of such exchanges or such market
by the Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium
shall have been declared by Federal or state authorities, (iii) the
United States shall have become engaged in hostilities, there shall have
been an escalation in hostilities involving the United States or there
shall have been a declaration of a national emergency or war by the
United States or (iv) there shall have occurred such a material adverse
change in general economic, political or financial conditions (or the
effect of international conditions on the financial markets in the
United States shall be such) as, in the case of clause (iv), to make it,
in the judgment of a majority of interest of the several Underwriters,
impractical or inadvisable to proceed with the public offering or
delivery of the Notes being delivered on the Delivery Date on the terms
and in the manner contemplated in the Prospectus.
(j) Subsequent to the execution and delivery of this
Agreement (i) no downgrading shall have occurred in the rating accorded
the Company's Senior debt by any "nationally recognized statistical
rating organization," as that term is defined by the Commission for
purposes of Rule 436(g)(2) of the Rules and Regulations and (ii) no such
organization shall have publicly announced that it has under
surveillance or review, for the purpose of lowering such ratings, its
rating of any of the Company's debt securities.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance satisfactory to
counsel for the Underwriters. The Company shall furnish to you
conformed copies of such opinions, certificates, letters and other
documents in such number as you shall reasonably request. If any of the
conditions specified in this Section 7 shall not have been fulfilled
when and as required by this Agreement, the Agreement and all
obligations of the Underwriters hereunder may be cancelled at, or at any
time prior to, the Delivery Date, by you. Any such cancellation shall
be without liability of the Underwriters to the Company. Notice of such
26
<PAGE>
cancellation shall be given the Company in writing, or by telegraph or
telephone and confirmed in writing.
8. INDEMNIFICATION AND CONTRIBUTION
(a) The Company shall indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within
the meaning of the Securities Act from and against any loss, claim,
damage or liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or
action relating to purchases and sales of Notes), to which that
Underwriter or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in
any preliminary prospectus, the Registration Statement or the Prospectus
or in any amendment or supplement thereto or (ii) the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
shall reimburse each Underwriter and each such controlling person
promptly upon demand for any legal or other expenses reasonably incurred
by that Underwriter or controlling person in connection with
investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred;
PROVIDED, HOWEVER, that the Company shall not be liable in any such case
to the extent that any such loss, claim, damage, liability or action
arises out of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in any preliminary
prospectus, the Registration Statement or the Prospectus or in any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter
specifically for inclusion therein. The foregoing indemnity agreement
is in addition to any liability which the Company may otherwise have to
any Underwriter or to any controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless the Company, each of its directors
(including any person who, with his or her consent, is named in the
Registration Statement as
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<PAGE>
about to become a director of the Company), each of its officers who
signed the Registration Statement and each person, if any, who controls
the Company within the meaning of the Securities Act, from and against
any loss, claim, damage or liability, joint or several, or any action in
respect thereof, to which the Company or any such director, officer or
controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in any preliminary
prospectus, the Registration Statement or the Prospectus or in any
amendment or supplement thereto or (ii) the omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, but in each
case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Company by or on
behalf of that Underwriter specifically for inclusion therein, and shall
reimburse the Company and any such director, officer or controlling
person for any legal or other expenses reasonably incurred by the
Company or any such director, officer or controlling person in
connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such
expenses are incurred. The foregoing indemnity agreement is in addition
to any liability which any Underwriter may otherwise have to the Company
or any such director, officer or controlling person.
(c) Promptly after receipt by an indemnified party under
this Section 8 of notice of any claim or the commencement of any action,
the indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under this Section 8, notify the
indemnifying party in writing of the claim or the commencement of that
action; PROVIDED, HOWEVER, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under
this Section 8 except to the extent it has been materially prejudiced by
such failure and, PROVIDED FURTHER, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may
have to an indemnified party otherwise than under this Section 8. If
any such claim or action shall be brought against an
28
<PAGE>
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the
extent that it wishes, jointly with any other similarly notified indemnifying
party, to assume the defense thereof with counsel satisfactory to the
indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the indemnified party
under this Section 8 for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense thereof other than
reasonable costs of investigation; PROVIDED, HOWEVER, that the Underwriters
shall have the right to employ counsel to represent jointly the Underwriters
and controlling persons who may be subject to liability arising out of any
claim in respect of which indemnity may be sought by the Underwriters against
the Company under this Section 8 if, in the reasonable judgment of the
Underwriters, it is advisable for the Underwriters and controlling persons to
be jointly represented by separate counsel, and in that event the fees and
expenses of such separate counsel shall be paid by the Company.
(d) If the indemnification provided for in this Section 8
shall for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 8(a) or 8(b) in respect of any loss, claim,
damage or liability, or any action in respect thereof, referred to therein,
then each indemnifying party shall, in lieu of indemnifying such indemnified
party, contribute to the amount paid or payable by such indemnified party as
a result of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the
relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Notes or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law or
if the indemnified party failed to give the notice required under Section
8(c), in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company on the one hand and the Underwriters on the other with respect to the
statements or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant
equitable consid-
29
<PAGE>
erations. The relative benefits received by the Company on the one hand and
the Underwriters on the other with respect to such offering shall be deemed
to be in the same proportion as the total net proceeds from the offering of
the Notes purchased under this Agreement (before deducting expenses) received
by the Company bear to the amount equal to the difference between the
aggregate price for which the Underwriters resell the Notes and the total net
proceeds from the offering of the Notes purchased under this Agreement
(before deducting expenses) received by the Company. The relative fault
shall be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or the
Underwriters, the intent of the parties and their relative knowledge, access
to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just
and equitable if contributions pursuant to this Section 8(d) were to be
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does
not take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to above
in this Section 8(d) shall be deemed to include, for purposes of this Section
8(d), any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8(d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Notes underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise paid or become liable to pay by reason of any
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
The Underwriters' obligations to contribute as provided in this
Section 8(d) are several in proportion to their respective underwriting
obligations and not joint.
30
<PAGE>
(e) The Underwriters severally confirm that the statements
with respect to the public offering of the Notes set forth on the cover page
of, and under the caption "Underwriting" in, the Prospectus are correct and
constitute the only information furnished in writing to the Company by or on
behalf of the Underwriters specifically for inclusion in the Registration
Statement and the Prospectus.
9. DEFAULTING UNDERWRITERS. If, on the Delivery Date, any
Underwriter defaults in the performance of its obligations under this
Agreement, the remaining non-defaulting Underwriters shall be obligated to
purchase the Notes which the defaulting Underwriter agreed but failed to
purchase on the Delivery Date in the respective proportions which the number
of Notes set opposite the name of each remaining non-defaulting Underwriter
in Schedule I hereto bears to the total number of Notes set opposite the
names of all the remaining non-defaulting Underwriters in Schedule I hereto;
PROVIDED, HOWEVER, that the remaining non-defaulting Underwriters shall not
be obligated to purchase any of the Notes on the Delivery Date if the total
number of Notes which the defaulting Underwriter or Underwriters agreed but
failed to purchase on such date exceeds 9.09% of the total number of Notes to
be purchased on the Delivery Date, and any remaining non-defaulting
Underwriter shall not be obligated to purchase more than 110% of the number
of Notes which it agreed to purchase on the Delivery Date pursuant to the
terms of Section 2. If the foregoing maximums are exceeded, the remaining
non-defaulting Underwriters, or those other underwriters satisfactory to the
Underwriters who so agree, shall have the right, but shall not be obligated,
to purchase, in such proportion as may be agreed upon among them, all the
Notes to be purchased on the Delivery Date. If the remaining Underwriters or
other underwriters satisfactory to the Underwriters do not elect to purchase
the Notes which the defaulting Underwriter or Underwriters agreed but failed
to purchase on the Delivery Date, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or the Company,
except that the Company and the Underwriters will continue to be liable for
the payment of expenses to the extent set forth in Sections 6, 8 and 11. As
used in this Agreement, the term "Underwriter" includes, for all purposes of
this Agreement unless the context requires otherwise, any party not listed in
Schedule I hereto who, pursuant to this Section 9, purchases Notes which a
defaulting Underwriter agreed but failed to purchase.
31
<PAGE>
Nothing contained herein shall relieve a defaulting Underwriter of
any liability it may have to the Company for damages caused by its default.
If other underwriters are obligated or agree to purchase the Notes of a
defaulting or withdrawing Underwriter, either the Underwriters or the Company
may postpone the Delivery Date for up to seven full business days in order to
effect any changes that in the opinion of counsel for the Company or counsel
for the Underwriters may be necessary in the Registration Statement, the
Prospectus or in any other document or arrangement.
10. TERMINATION. The obligations of the Underwriters hereunder
may be terminated by the Underwriters by notice given to and received by the
Company prior to delivery of and payment for the Notes, if, prior to that
time, any of the events described in Sections 7(h), or 7(i) shall have
occurred or if the Underwriters shall decline to purchase the Notes for any
reason permitted under this Agreement.
11. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If (a) the Company
shall fail to tender the Notes for delivery to the Underwriters unless for
any reason permitted under this Agreement or (b) the Underwriters shall
decline to purchase the Notes for any reason permitted under this Agreement
(including the termination of this Agreement pursuant to Section 10), the
Company shall reimburse the Underwriters for the fees and expenses of their
counsel and for such other out-of-pocket expenses as shall have been incurred
by them in connection with this Agreement and the proposed purchase of the
Notes, and upon demand the Company shall pay the full amount thereof to the
Underwriters. If this Agreement is terminated pursuant to Section 9 by
reason of the default of one or more Underwriters, the Company shall not be
obligated to reimburse any defaulting Underwriter on account of these
expenses.
12. NOTICES, ETC. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by
mail, telex or facsimile transmission to Lehman Brothers Inc., 3 World
Financial Center, New York, New York 10285-1100, Attention: Syndicate
Registration Department (Fax: 212-528-8822).
32
<PAGE>
(b) if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in
the Registration Statement, Attention: President (Fax: 312-456-7696).
Any such statements, requests, notices or agreements shall take
effect at the time of receipt thereof.
The Company shall be entitled to act and rely upon any request,
consent, notice or agreement given or made on behalf of the Underwriters by
Lehman Brothers Inc.
13. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement
shall inure to the benefit of and be binding upon the Underwriters, the
Company, and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
(A) the representations, warranties, indemnities and agreements of the
Company contained in this Agreement shall also be deemed to be for the
benefit of the person or persons, if any, who control any Underwriter within
the meaning of Section 15 of the Securities Act and (B) the indemnity
agreement of the Underwriters contained in Section 8(b) of this Agreement
shall be deemed to be for the benefit of directors of the Company, officers
of the Company who have signed the Registration Statement and any person
controlling the Company within the meaning of Section 15 of the Securities
Act. Nothing in this Agreement is intended or shall be construed to give any
person, other than the persons referred to in this Section 13, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein.
14. SURVIVAL. The respective indemnities, representations,
warranties and agreements of the Company and the Underwriters contained in
this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall survive the delivery of and payment for the Notes and
shall remain in full force and effect, regardless of any investigation made
by or on behalf of any of them or any person controlling any of them.
15. DEFINITION OF THE TERMS "BUSINESS DAY" AND "SUBSIDIARY". For
purposes of this Agreement, (a) "business day" means any day on which the New
York Stock Exchange, Inc. is open for trading and (b) "subsidiary" has
33
<PAGE>
the meaning set forth in Rule 405 of the Rules and Regulations.
16. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of New York.
17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
18. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
34
<PAGE>
If the foregoing correctly sets forth the agreement between the
Company and the Underwriters, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
CENTERPOINT PROPERTIES TRUST
By:
---------------------------------------
Name:
Title:
Accepted:
LEHMAN BROTHERS INC.
NATIONSBANC MONTGOMERY SECURITIES, LLC
FIRST CHICAGO CAPITAL MARKETS, INC.
By: LEHMAN BROTHERS INC.
By:
---------------------------------------
Name:
Title:
For itself and on behalf
of the several Underwriters
35
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
Aggregate
Principal
Underwriters Amount
- ------------ ------------
<S> <C>
Lehman Brothers Inc. . . . . . . . . . . . . . . . . . . . . $ 50,000,000
NationsBanc Montgomery Securities, LLC . . . . . . . . . . . 33,000,000
First Chicago Capital Markets, Inc.. . . . . . . . . . . . . 17,000,000
------------
Total. . . . . . . . . . . . . . . . . . . . . . . . . . . $100,000,000
------------
------------
</TABLE>
<PAGE>
CENTERPOINT PROPERTIES TRUST, ISSUER
TO
U.S. BANK TRUST NATIONAL ASSOCIATION, AS TRUSTEE
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF APRIL 7, 1998
$100,000,000 6-3/4% SENIOR NOTES DUE 2005
SUPPLEMENT TO INDENTURE
DATED AS OF APRIL 7, 1998
BETWEEN
CENTERPOINT PROPERTIES TRUST
AND
U.S. BANK TRUST NATIONAL ASSOCIATION, AS TRUSTEE
<PAGE>
FIRST SUPPLEMENTAL INDENTURE, dated as of April 7, 1998, between
CENTERPOINT PROPERTIES TRUST, a Maryland real estate investment trust (the
"Issuer"), having its principal offices at 401 North Michigan Avenue, Suite
3000, Chicago, Illinois 60611, and U.S. BANK TRUST NATIONAL ASSOCIATION, a
national banking association organized under the laws of the United States of
America, as trustee (the "Trustee"), having its Corporate Trust Office at One
Illinois Center, 111 E. Wacker Drive, Chicago, Illinois 60601.
RECITALS
WHEREAS, the Issuer executed and delivered its Indenture (the "Original
Indenture"), dated as of April 7, 1998, to the Trustee to issue from time to
time for its lawful purposes debt securities evidencing its unsecured
indebtedness.
WHEREAS, the Original Indenture provides that by means of a supplemental
indenture, the Issuer may create one or more series of its debt securities and
establish the form and terms and conditions thereof.
WHEREAS, the Issuer intends by this Supplemental Indenture to create a
series of debt securities, in an aggregate principal amount not to exceed
$100,000,000, entitled "CenterPoint Properties Trust 6-3/4% Senior Notes due
2005" (the "Notes") and establish the form and the terms and conditions of such
Notes.
WHEREAS, the Board of Trustees of the Issuer has approved the creation of
the Notes and the form, terms and conditions thereof.
WHEREAS, the consent of Holders to the execution and delivery of this
Supplemental Indenture is not required, and all other actions required to be
taken under the Original Indenture with respect to this Supplemental Indenture
have been taken.
NOW, THEREFORE IT IS AGREED:
ARTICLE ONE
DEFINITIONS, CREATION, FORM AND TERMS AND CONDITIONS OF THE DEBT SECURITIES
SECTION 1.01 DEFINITIONS. Capitalized terms used in this Supplemental
Indenture and not otherwise defined shall have the meanings ascribed to them in
the Original Indenture. In addition, the following terms shall have the
following meanings to be equally applicable to both the singular and the plural
forms of the terms defined:
"Adjusted Total Assets" as of any date means the total of all assets
determined in accordance with GAAP plus accumulated depreciation.
"Annual Service Charge" as of any date means the aggregate amount of any
interest expensed for the four consecutive fiscal quarters most recently ended,
as determined in accordance with GAAP.
<PAGE>
"Consolidated Income Available for Debt Service" as of any date means
Consolidated Net Income (as defined below) of the Company and its Subsidiaries
plus amounts that have been deducted for: (a) interest on Debt of the Company
and its Subsidiaries; (b) provision for taxes of the Company and its
Subsidiaries based on income; (c) amortization of debt discount; (d)
depreciation and amortization; (e) the effect of any noncash charge resulting
from a change in accounting principles in determining Consolidated Net Income;
and (f) amortization of deferred charges, for the four consecutive fiscal
quarters most recently ended, all as determined in accordance with GAAP, and
without taking into account any provision for gains and losses on properties.
"Consolidated Net Income" for any period means the amount of net income (or
loss) of the Company and its Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP.
"Global Note" means a single fully-registered global note in book-entry
form, without coupons, substantially in the form of Exhibit A attached hereto.
"Indenture" means the Original Indenture as supplemented by this First
Supplemental Indenture.
"Intercompany Debt" means Debt to which the only parties are the Issuer and
any Subsidiary and, in the case of Debt owed by the Issuer to any Subsidiary,
such Debt is subordinate in right of payment to the holders of the Notes.
"Make-Whole Amount" means, in connection with any optional redemption of
any Notes, the excess, if any, of: (i) the aggregate present value as of the
date of such redemption of each dollar of principal being redeemed and the
amount of interest (exclusive of interest accrued to the date of redemption)
that would have been payable in respect of each such dollar if such redemption
had not been made, determined by discounting, on a semi-annual basis, such
principal and interest at the Reinvestment Rate (determined on the third
Business Day preceding the date notice of such redemption is given) from the
respective dates on which such principal and interest would have been payable if
such redemption had not been made, to the date of redemption, over (ii) the
aggregate principal amount of the Notes being redeemed.
"Notes" means the Issuer's 6-3/4% Senior Notes due April 1, 2005, a form of
which is attached hereto as Exhibit A.
"Reinvestment Rate" means the yield on Treasury securities at a constant
maturity corresponding to the remaining life (as of the date of redemption, and
rounded to the nearest month) to stated maturity of the principal being redeemed
(the "Treasury Yield"), plus 0.25%. For purposes hereof, the Treasury Yield
shall be equal to the arithmetic mean of the yields published in the Statistical
Release under the heading "Week Ending" for "U.S. Government
Securities--Treasury Constant Maturities" with a maturity equal to such
remaining life; provided, that if no published maturity exactly corresponds to
such remaining life, then the Treasury Yield
-2-
<PAGE>
shall be interpolated or extrapolated on a straight-line basis from the
arithmetic means of the yields for the next shortest and next longest published
maturities. For purposes of calculating the Reinvestment Rate, the most recent
Statistical Release published prior to the date of determination of the
Make-Whole Amount shall be used. If the format or content of the Statistical
Release changes in a manner that precludes determination of the Treasury Yield
in the above manner, then the Treasury Yield shall be determined in the manner
that most closely approximates the above manner, as reasonably determined by the
Company.
"Statistical Release" means the statistical release designated "H.15(519)"
or any successor publication which is published weekly by the Federal Reserve
System and which reports yields on actively traded United States government
securities adjusted to constant maturities, or, if such statistical release is
not published at the time of any determination under the Indenture, then such
other reasonably comparable index which shall be designated by the Company.
"Undepreciated Real Estate Assets" as of any date means the cost (original
cost plus capital improvements) of real estate assets of the Company and its
Subsidiaries on such date, before depreciation and amortization, determined on a
consolidated basis in accordance with GAAP.
"Unencumbered Total Asset Value" as of any date means the sum of: (i) the
value of those Undepreciated Real Estate Assets not subject to an encumbrance;
and (ii) the value of all other assets of the Company and its Subsidiaries on a
consolidated basis not subject to an encumbrance determined in accordance with
GAAP (but excluding accounts receivable and intangibles).
SECTION 1.02 CREATION OF THE DEBT SECURITIES. In accordance with Section
301 of the Original Indenture, the Issuer hereby creates the Notes as separate
series of its debt securities issued pursuant to the Indenture. The Notes shall
be issued in an aggregate principal amount not to exceed $100,000,000. The
Notes shall be in the form of Exhibit A attached hereto, the terms of which are
incorporated by reference herein.
SECTION 1.03 FORM OF THE DEBT SECURITIES. Each series of Notes will be
represented by a single fully-registered global note in book-entry form, without
coupons, registered in the name of the nominee of DTC. The Notes shall be in
the form of Exhibit A attached hereto. So long as DTC, or its nominee, is the
registered owner of a Global Note, DTC or its nominee, as the case may be, will
be considered the sole owner or holder of the Notes represented by such Global
Note for all purposes under the Indenture. Ownership of beneficial interests in
the Global Notes will be shown on, and transfers thereof will be effected only
through, records maintained by DTC (with respect to beneficial interests of
participants) or by participants or persons that hold interests through
participants (with respect to beneficial interests of beneficial owners).
SECTION 1.04 TERMS AND CONDITIONS OF THE DEBT SECURITIES. The Notes shall
be governed by all the terms and conditions of the Original Indenture, as
supplemented by this First Supplemental Indenture, and in particular, the
following provisions shall be terms of the Notes:
-3-
<PAGE>
(a) OPTIONAL REDEMPTION. The Issuer may redeem the Notes at any time at
the option of the Issuer, in whole or from time to time in part, at a redemption
price equal to the sum of : (i) the principal amount of the Notes being
redeemed plus accrued interest thereon to the redemption date; and (ii) the
Make-Whole Amount, if any, with respect to the Notes (the "Redemption Price").
If notice of redemption has been given as provided in the Original
Indenture and funds for the redemption of any Notes called for redemption shall
have been made available on the Redemption Date referred to in such notice, such
Notes will cease to bear interest on the date fixed for such redemption
specified in such notice and the only right of the Holders of such Notes from
and after the Redemption Date will be to receive payment of the Redemption Price
upon surrender of such Notes in accordance with such notice.
Notice of any optional redemption of any Notes will be given to Holders at
their addresses, as shown in the security register for the Notes, not more than
60 nor less than 30 days prior to the date fixed for redemption. The notice of
redemption will specify, among other items, the Redemption Price and the
principal amount of the Notes held by such Holder to be redeemed.
If all or less than all of the Notes of any series are to be redeemed at
the option of the Issuer, the Issuer will notify the Trustee at least 45 days
prior to giving notice of redemption (or such shorter period as is satisfactory
to the Trustee) of the aggregate principal amount of Notes to be redeemed, if
less than all of the Notes of any series are to be redeemed, and their
Redemption Date. The Trustee shall select, in such manner as it shall deem fair
and appropriate, no less than 60 days prior to the date of redemption, the Notes
to be redeemed in whole or in part.
(b) PAYMENT OF PRINCIPAL AND INTEREST. Principal and interest payments on
interests represented by a Global Note will be made to DTC or its nominee, as
the case may be, as the registered owner of such Global Note. All payments of
principal and interest in respect of the Notes will be made by the Issuer in
immediately available funds.
(c) APPLICABILITY OF DEFEASANCE OR COVENANT DEFEASANCE. The provisions of
Article 14 of the Original Indenture shall apply to the Notes.
ARTICLE TWO
ADDITIONAL COVENANTS
The Notes shall be governed by all the covenants contained in the Original
Indenture, as supplemented by this First Supplemental Indenture, and in
particular, this First Supplemental Indenture amends Section 1004 of the
Original Indenture to read as follows:
"SECTION 1004. Limitations on Incurrence of Debt.
(a) The Issuer will not, and will not permit any Subsidiary to,
incur any Debt, other than Intercompany Debt, if, immediately after
giving effect to the
-4-
<PAGE>
incurrence of such Debt and the application of the proceeds thereof, the
aggregate principal amount of all outstanding Debt of the Issuer and its
Subsidiaries on a consolidated basis determined in accordance with GAAP is
greater than 60% of the sum of (i) the Issuer's Adjusted Total Assets as of
the end of the most recent fiscal quarter prior to the incurrence of such
additional Debt and (ii) the increase in Adjusted Total Assets since the
end of such quarter (including any increase resulting from the incurrence
of additional Debt).
(b) The Issuer will not, and will not permit any Subsidiary to,
incur any Debt if the ratio of Consolidated Income Available for Debt
Service to the Annual Service Charge on the date on which such
additional Debt is to be incurred would have been less than 1.5 to 1,
on a pro forma basis, after giving effect to the incurrence of such
Debt and to the application of the proceeds thereof.
(c) The Issuer will not, and will not permit any Subsidiary to,
incur any Debt secured by any mortgage, lien, charge, pledge,
encumbrance or security interest of any kind upon any of the
properties of the Issuer or any Subsidiary ("Secured Debt"), whether
owned at the date hereof or hereafter acquired, if, immediately after
giving effect to the incurrence of such Secured Debt and the
application of the proceeds thereof, the aggregate principal amount of
all outstanding Secured Debt of the Issuer and its Subsidiaries on a
consolidated basis is greater than 40% of the sum of (i) the Issuer's
Adjusted Total Assets as of the end of the most recent fiscal quarter
prior to the incurrence of such additional Debt and (ii) the increase
in Adjusted Total Assets since the end of such quarter (including any
increase resulting from the incurrence of additional Debt).
(d) The Issuer will at all times maintain an Unencumbered Total
Asset Value in an amount not less than 150% of the aggregate principal
amount of all outstanding unsecured Debt of the Issuer and its
Subsidiaries on a consolidated basis.
For purposes of the foregoing provisions regarding the limitation
on the incurrence of Debt, Debt shall be deemed to be "incurred" by
the Issuer or a Subsidiary whenever the Issuer or such Subsidiary
shall create, assume, guarantee or otherwise become liable in respect
thereof."
ARTICLE THREE
TRUSTEE
SECTION 3.01 TRUSTEE. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or the due execution thereof by the Issuer. The recitals of fact
contained herein shall be taken as the statements solely of the Issuer, and the
Trustee assumes no responsibility for the correctness thereof.
-5-
<PAGE>
ARTICLE FOUR
MISCELLANEOUS PROVISIONS
SECTION 4.01 RATIFICATION OF ORIGINAL INDENTURE. This Supplemental
Indenture is executed and shall be construed as an indenture supplemental to the
Original Indenture, and as supplemented and modified hereby, the Original
Indenture is in all respects ratified and confirmed, and the Original Indenture
and this Supplemental Indenture shall be read, taken and construed as one and
the same instrument.
SECTION 4.02 EFFECT OF HEADINGS. The Article and Section headings herein
are for convenience only and shall not affect the construction hereof
SECTION 4.03 SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Supplemental Indenture by the Issuer shall bind its successors and assigns,
whether so expressed or not.
SECTION 4.04 SEPARABILITY CLAUSE. In case any one or more of the
provisions contained in this Supplemental Indenture shall for any reason be held
to be invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 4.05 GOVERNING LAW. This Supplemental Indenture shall be governed
by and construed in accordance with the laws of the State of New York. This
Supplemental Indenture is subject to the provisions of the Trust Indenture Act,
that are required to be part of this Supplemental Indenture and shall, to the
extent applicable, be governed by such provisions.
SECTION 4.06 COUNTERPARTS. This Supplemental Indenture may be executed in
any number of counterparts, and each of such counterparts shall for all purposes
be deemed to be an original, but all such counterparts shall together constitute
one and the same instrument.
-6-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the date first above written.
CENTERPOINT PROPERTIES TRUST
By:
----------------------------------
Name: John S. Gates, Jr.
Title: President
Attest:
By:
------------------------------
Name: Paul S. Fisher
Title: Secretary
U.S. BANK TRUST NATIONAL
ASSOCIATION,
as Trustee
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
Attest:
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
-7-
<PAGE>
STATE OF ILLINOIS )
) SS:
COUNTY OF COOK )
On the ____ day of __________, 1998, before me personally came JOHN S.
GATES, JR., and PAUL S. FISHER, to me known, who, being by me duly sworn, did
depose and say that he is the President and Secretary, respectively, of
CENTERPOINT PROPERTIES TRUST, one of the parties described in and which executed
the foregoing instrument, and that he signed his name, respectively, thereto by
authority of the Board of Trustees.
[Notarial Seal]
- ----------------------------
Notary Public
COMMISSION EXPIRES
-8-
<PAGE>
STATE OF ______________________)
) SS:
COUNTY OF _____________________)
On the ____ day of _________, 1998, before me personally came
__________________, to me known., who, being by me duly sworn, did depose and
say that he/she resides at __________________, that he/she is a
__________________ of U.S. BANK TRUST NATIONAL ASSOCIATION one of the parties
described in and which executed the foregoing instrument, and that he/she signed
his/her name thereto by authority of the Board of Directors.
[Notarial Seal]
- ----------------------------
Notary Public
COMMISSION EXPIRES
-9-
<PAGE>
EXHIBIT A
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR
NOTES IN CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR ANOTHER
NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE
OF SUCH SUCCESSOR.
REGISTERED REGISTERED
NO. [__________] PRINCIPAL AMOUNT
CUSIP NO. $100,000,000
CENTERPOINT PROPERTIES TRUST
6-3/4% Senior Notes due April 1, 2005
CenterPoint Properties Trust, a Maryland real estate investment trust (the
"Issuer," which term includes any successor under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede & Co. or its
registered assigns, the principal sum of One Hundred Million Dollars
($100,000,000) on April 1, 2005 (the "Maturity Date"), and to pay interest
thereon from April 7, 1998 (or from the most recent interest payment date to
which interest has been paid or duly provided for), semi-annually in arrears on
April 1 and October 1 of each year (each, an "Interest Payment Date"),
commencing on October 1, 1998, and on the Maturity Date, at the rate of 6-3/4%
per annum, until payment of said principal sum has been made or duly provided
for.
A-1
<PAGE>
The interest so payable and punctually paid or duly provided for on any
Interest Payment Date and on the Maturity Date will be paid to the Holder in
whose name this Note (or one or more predecessor Notes) is registered at the
close of business on the "Record Date" for such payment, which will be 15 days
(regardless of whether such day is a Business Day (as defined below)) prior to
such payment date or the Maturity Date, as the case may be. Any interest not so
punctually paid or duly provided for shall forthwith cease to be payable to the
Holder on such record date, and shall be paid to the Holder in whose name this
Note (or one or more predecessor Notes) is registered at the close of business
on a subsequent record date for the payment of such defaulted interest (which
shall be not be more than 15 days and not less than 10 days prior to the date of
the payment of such defaulted interest) established by notice given by mail by
or on behalf of the Issuer to the Holders of the Notes not less than 10 days
preceding such subsequent record date. Interest on this Note will be computed on
the basis of a 360-day year of twelve 30-day months.
The principal of this Note payable on the Maturity Date will be paid
against presentation and surrender of this Note at the corporate trust office of
the Trustee at U.S. Bank National Association, Fourth Floor -- Bond Drop Window,
180 East Fifth Street, St. Paul, Minnesota 55101, in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public or private debt.
Interest payable on this Note on any Interest Payment Date and on the
Maturity Date, as the case may be, will be the amount of interest accrued from
and including the immediately preceding Interest Payment Date (or from and
including April 7, 1998, in the case of the initial Interest Payment Date) to
but excluding the applicable Interest Payment Date or the Maturity Date, as the
case may be. If any Interest Payment Date or the Maturity Date falls on a day
that is not a Business Day (as defined below), the required payment of interest
or principal or both, as the case may be, will be made on the next Business Day
with the same force and effect as if it were made on the date such payment was
due and no interest will accrue on the amount so payable for the period from and
after such Interest Payment Date or the Maturity Date, as the case may be.
"Business Day" means any day, other than a Saturday or a Sunday, that is neither
a legal holiday nor a day on which banking institutions in The City of New York
or Chicago are authorized or required by law, regulation or executive order to
close.
Payments of principal and interest in respect of this Note will be made by
wire transfer of immediately available funds in such coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Reference is made to the further provisions of this Note set forth on the
reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
This Note shall not be entitled to the benefits of the Indenture referred
to on the reverse thereof or be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been signed by the Trustee
under such Indenture.
A-2
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed
manually or by facsimile by its authorized officers.
Dated: April 7, 1998
CENTERPOINT PROPERTIES TRUST, as Issuer
By:
----------------------------------
Name: John S. Gates, Jr.
Title: President
By:
----------------------------------
Name: Paul S. Fisher
Title: Secretary
A-3
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
U.S. BANK TRUST NATIONAL
ASSOCIATION,
as Trustee
By:
--------------------------------
Title:
--------------------------------
A-4
<PAGE>
[REVERSE OF NOTE]
CENTERPOINT PROPERTIES TRUST
6-3/4% Senior Notes due April 1, 2005
This security is one of a duly authorized issue of debentures, notes,
bonds, or other evidences of indebtedness of the Issuer (hereinafter called the
"Securities") of the series hereinafter specified, all issued or to be issued
under and pursuant to an Indenture dated as of April 7, 1998 (herein called the
"Indenture"), duly executed and delivered by the Issuer to U.S. Bank Trust
National Association, as Trustee (herein called the "Trustee," which term
includes any successor trustee under the Indenture with respect to the series of
Securities of which this Note is a part), to which Indenture and all indentures
supplemental thereto relating to this security reference is hereby made for a
description of the rights, limitations of rights, obligations, duties, and
immunities thereunder of the Trustee, the Issuer, and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. The Securities may be issued in one or more
series, which different series may be issued in various aggregate principal
amounts, may mature at different times, may bear interest (if any) at different
rates, may be subject to different redemption provisions (if any), and may
otherwise vary as provided in the Indenture or any indenture supplemental
thereto. This security is one of a series designated as the 6-3/4% Notes due
April 1, 2005 of the Issuer, limited in aggregate principal amount to
$100,000,000.
In case an Event of Default with respect to this security shall have
occurred and be continuing, the principal hereof and Make-Whole Amount, if any,
may be declared, and upon such declaration shall become, due and payable, in the
manner, with the effect, and subject to the conditions provided in the
Indenture.
The Issuer may redeem this security at any time at the option of the
Issuer, in whole or from time to time in part, at a redemption price equal to
the sum of (i) the principal amount of this security being redeemed plus accrued
interest thereon to the Redemption Date and (ii) the Make-Whole Amount, if any,
with respect to this security. Notice of any optional redemption of any
Securities will be given to Holders at their addresses, as shown in the security
register for the Securities, not more than 60 nor less than 30 days prior to the
date fixed for redemption. The notice of redemption will specify, among other
items, the Redemption Price and the principal amount of the Securities held by
such Holder to be redeemed.
The Indenture contains provisions permitting the Issuer and the Trustee,
with the consent of the Holders of not less than a majority of the aggregate
principal amount of the Securities at the time Outstanding of all series to be
affected (voting as one class), evidenced as provided in the Indenture, to
execute supplemental indentures adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or modifying in any manner the rights of the Holders of
the Securities of each series; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Security so affected,
(i) change the Stated Maturity of the principal of (or premium or Make-Whole
Amount, if any, on) or any installment of interest on, any such Security; (ii)
reduce the principal amount of, or the rate or amount of interest on, or any
premium payable on redemption
A-5
<PAGE>
of the Securities, or adversely affect any right of repayment of the Holder of
any Securities; (iii) change the place of payment, or the coin or currency, for
payment of principal or premium, if any, or interest on the Securities; (iv)
impair the right to institute suit for the enforcement of any payment on or with
respect to the Securities on or after the stated maturity of any such Security;
(v) reduce the above-stated percentage in principal amount of outstanding
Securities the consent of whose Holders is necessary to modify or amend the
Indenture, for any waiver with respect to the Securities or to waive compliance
with certain provisions of the Indenture or certain defaults and consequences
thereunder or to reduce the quorum or voting requirements set forth in the
Indenture; or (vi) modify any of the foregoing provisions or any of the
provisions relating to the waiver of certain past defaults or certain covenants,
except to increase the required percentage to effect such action or to provide
that certain other provisions of the Indenture may not be modified or waived
without the consent of the Holder of each Security. It is also provided in the
Indenture that, with respect to certain defaults or Events of Default regarding
the Securities of any series, the Holders of a majority in aggregate principal
amount outstanding of the Securities of such series (or, in the case of certain
defaults or Events of Default, all series of Securities) may on behalf of the
Holders of all the Securities of such series (or all of the Securities, as the
case may be) waive any such past default or Event of Default and its
consequences, prior to any declaration accelerating the maturity of such
Securities, or, subject to certain conditions, may rescind a declaration of
acceleration and its consequences with respect to such Securities. Any such
consent or waiver by the Holder of this Security (unless revoked as provided in
the Indenture) shall be conclusive and binding upon such Holder and upon all
future Holders and owners of this Security and any Securities that may be issued
in exchange or substitution therefor, irrespective of whether or not any
notation thereof is made upon this security or such other securities.
No reference herein to the Indenture and no provision of this security or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and any Make-Whole Amount
and interest on this security in the manner, at the respective times, at the
rate and in the coin or currency herein prescribed.
This security is issuable only in registered form without coupons in
denominations of $1,000 and integral multiples thereof. Securities may be
exchanged for a like aggregate principal amount of securities of this series of
other authorized denominations at the office or agency of the Issuer in The
Borough of Manhattan, The City of New York, in the manner and subject to the
limitations provided in the Indenture, but without the payment of any service
charge except for any tax or other governmental charge imposed in connection
therewith.
Upon due presentment for registration of transfer of Securities at the
office or agency of the Issuer in The Borough of Manhattan, The City of New
York, one or more new Securities of the same series of authorized denominations
in an equal aggregate principal amount will be issued to the transferee in
exchange therefor, subject to the limitations provided in the Indenture, without
charge except for any tax or other governmental charge imposed in connection
therewith.
A-6
<PAGE>
The Issuer, the Trustee or any authorized agent of the Issuer or the
Trustee may deem and treat the Person in whose name this security is registered
as the absolute owner of this security (whether or not this security shall be
overdue and notwithstanding any notation of ownership or other writing hereon),
for the purpose of receiving payment of, or on account of, the principal hereof
and Make-Whole Amount, if any, and subject to the provisions on the face hereof,
interest hereon, and for all other purposes, and neither the Issuer nor the
Trustee nor any authorized agent of the Issuer or the Trustee shall be affected
by any notice to the contrary.
The Indenture and each Security shall be deemed to be a contract under the
laws of the State of New York, and for all purposes shall be construed in
accordance with the laws of such state, except as may otherwise be required by
mandatory provisions of law.
Capitalized terms used herein which are not otherwise defined shall have
the respective meanings assigned to them in the Indenture and all indentures
supplemental thereto relating to this security.
A-7
<PAGE>
EXHIBIT 5
UNGARETTI & HARRIS
3500 THREE FIRST NATIONAL PLAZA
CHICAGO, ILLINOIS 60602
April 2, 1998
CenterPoint Properties Trust
401 North Michigan Avenue
Suite 3000
Chicago, Illinois 60611
Ladies and Gentlemen:
We have acted as counsel to CenterPoint Properties Trust, a Maryland real estate
investment trust (the "Company"), in connection with the preparation of (i) a
Registration Statement on Form S-3 of the Company filed with the Securities and
Exchange Commission (the "Commission") on December 19, 1996 and declared
effective by the Commission on January 6, 1997 as amended by a Post-Effective
Amendment No. 1 filed with the Commission of October 15, 1997 and declared
effective by the Commission on October 23, 1997 (the "Registration Statement"),
relating to the registration, under Rule 415 of the Securities Act of 1933, as
amended (the "Securities Act"), of up to $200,000,000 in securities of the
Company; and (ii) a supplement dated April 2, 1998 (the "Supplement") to the
Registration Statement, relating to the issuance and sale of $100,000,000
aggregate principal amount of the Company's 6-3/4% Senior Notes due 2005 (the
"Notes"), to be issued pursuant to an Indenture dated as of April 2, 1998 (the
"Original Indenture") between the Company and U.S. Bank Trust National
Association, as trustee (the "Trustee"), as supplemented by the First
Supplemental Indenture dated as of April 2, 1998 between the Company and the
Trustee (the "First Supplemental Indenture"; the Original Indenture as
supplemented by the First Supplemental Indenture being referred to herein as the
"Indenture").
In this regard, we have examined:
a. the declaration of trust, by-laws and organizational documents of the
Company;
b. certain resolutions adopted by the Company's Board of Trustees;
c. the Registration Statement and Supplement;
d. the Indenture; and
e. such other documents as we have deemed relevant for the purpose of
rendering the opinions set forth herein, including certifications as
to certain
<PAGE>
CenterPoint Properties Trust
April 2, 1998
Page -2-
matters of fact by responsible officers of the Company and by
governmental authorities.
We have assumed the authenticity of all documents submitted to us as originals
and the conformity to original documents of all documents submitted to us as
copies.
Based upon the foregoing, we are of the opinion that:
1. The Notes have been duly and validly authorized by the Company and,
when duly executed by authorized officers of the Company, duly authenticated by
the Trustee and issued by the Company in accordance with the terms of the
Indenture against payment of the principal amount thereof, will constitute the
legal, valid and binding obligations of the Company in accordance with their
terms and the terms of the Indenture, subject to bankruptcy, reorganization,
insolvency, fraudulent conveyance and similar laws affecting creditors' rights
generally, and general principles of equity (regardless of whether the
application of such principles is considered in a proceeding in equity or at
law).
2. The Indenture has been duly and validly authorized by the Company and,
when duly executed by an authorized officers of the Trustee, will constitute the
legal, valid and binding obligation of the Company in accordance with its terms,
subject to bankruptcy, reorganization, insolvency, fraudulent conveyance and
similar laws affecting creditors' rights generally, and general principles of
equity (regardless of whether the application of such principles is considered
in a proceeding in equity or at law).
We are members of the Bar of the State of Illinois. Our opinion is limited to
the laws of the State of Illinois and the general laws of the United States of
America. Insofar as our opinion relates to matters of New York law, we have
assumed that laws of the State of New York are the same as the laws of the State
of Illinois.
We consent to the use of this opinion as an Exhibit to the Registration
Statement and to the reference to our firm in the Prospectus that is part of the
Registration Statement. By giving such consent, we do not hereby admit that we
are in the category of persons whose consent is required under Section 7 of the
Securities Act.
Very truly yours,
Ungaretti & Harris
<PAGE>
EXHIBIT 8
UNGARETTI & HARRIS
3500 THREE FIRST NATIONAL PLAZA
CHICAGO, ILLINOIS 60602
April 2, 1998
CenterPoint Properties Trust
401 North Michigan Avenue
Suite 3000
Chicago, Illinois 60611
Ladies and Gentlemen:
You have requested our opinion as to whether CenterPoint Properties Trust, a
Maryland real estate investment trust (the "Company"), is qualified to be taxed
as a real estate investment trust ("REIT") under section 856 of the Internal
Revenue Code of 1986, as amended (the "Code").
In this connection, we have examined:
a. the declaration of trust, by-laws and organizational documents of the
Company;
b. the Company's Registration Statement on Form S-3 filed with the Securities
and Exchange Commission (the "Commission") on December 19, 1996 (File No.
333-18235), as amended by Post-Effective Amendment No. 1 filed with the
Commission on October 15, 1997 and declared effective on October 23, 1997
(the "Registration Statement");
c. the Supplement dated April 2, 1998 for the offering of $100,000,000
aggregate principal amount of 6-3/4% Senior Notes due 2005 (the
"Supplement"); and
d. such other documents as we have deemed relevant for the purpose of
rendering the opinions set forth herein, including certifications as to
certain matters of fact by a responsible officer of the Company (the
"Officer's Certificate").
Based upon the foregoing, we are of the opinion that:
1. The Company is organized in conformity with the requirements for
qualification as a REIT under the Code.
2. The Company has met the requirements to qualify as a REIT for its taxable
years ending prior to the date hereof. If results of operations for its
current taxable year and subsequent taxable years are in accordance with
expectations set forth in the
<PAGE>
CenterPoint Properties Trust
April 2, 1998
Page -2-
Officer's Certificate, the Registration Statement and the Preferred Shares
Supplement, the Company will continue to so qualify.
Our opinion as expressed herein is based upon the Code, applicable Treasury
regulations adopted thereunder, reported judicial decisions and rulings of the
Internal Revenue Service, all as of the date hereof. It should be noted that
whether the Company will qualify as a REIT under the Code in the current taxable
year and future taxable years will depend upon whether the Company continues to
meet the various qualification tests imposed under the Code through actual
annual operating results. We express no opinion as to whether the actual
results of the Company's operations for any such taxable year will satisfy such
requirements.
We consent to the use of this opinion as an Exhibit to the Registration
Statement. In giving such consent, we do not hereby admit that we are in the
category of persons whose consent is required under Section 7 of the Securities
Act.
Very truly yours,
Ungaretti & Harris
<PAGE>
EXHIBIT 12
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>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER
THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility of
a Trustee Pursuant to Section 305(b)(2)___
-----------------------------------------------
U.S. BANK TRUST NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
111 EAST WACKER DRIVE, SUITE 3000
CHICAGO, ILLINOIS 60601 36-4046888
(Address of principal executive offices) (Zip Code) I.R.S. Employer
Identification No.
Patricia M. Trlak
111 East Wacker Drive, Suite 3000
Chicago, Illinois 60601
Telephone (312) 228-9447
(Name, address and telephone number of agent for service)
CENTERPOINT PROPERTIES TRUST
(Exact name of obligor as specified in its charter)
MARYLAND 36-3910279
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
401 NORTH MICHIGAN AVENUE, SUITE 3000
CHICAGO, ILLINOIS 60611
(Address of Principal Executive Offices) (Zip Code)
SENIOR DEBT SECURITIES
(Title of the Indenture Securities)
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
FORM T-1
ITEM 1. GENERAL INFORMATION. Furnish the following information as to the
Trustee.
a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
Comptroller of the Currency
Washington, D.C.
b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes
ITEM 2. AFFILIATIONS WITH OBLIGOR. IF THE OBLIGOR IS AN AFFILIATE OF THE
TRUSTEE, DESCRIBE EACH SUCH AFFILIATION.
None
ITEMS 3-15 Not applicable because, to the best of Trustee's knowledge, the
Trustee is not a trustee under any other indenture under which
any other securities or certificates of interest or participation
in any other securities of the obligor are outstanding and there
is not, nor has there been, a default with respect to securities
issued under this indenture.
ITEM 16. LIST OF EXHIBITS: LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS
STATEMENT OF ELIGIBILITY AND QUALIFICATION.
1. A copy of the Articles of Association of the Trustee now in
effect, filed herewith.
2. A copy of the certificate of authority of the Trustee to commence
business, incorporated herein by reference to Exhibit 2 to Item
16 of Form T-1, Registration No. 33-64175.*
3. A copy of the certificate of authority of the Trustee to exercise
corporate trust powers, incorporated herein by reference to
Exhibit 3 to Item 16 of Form T-1, Registration No. 33-64175.*
4. A copy of the existing bylaws of the Trustee, as now in effect,
filed herewith.
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the
Trust Indenture Act of 1939, incorporated herein by reference to
Exhibit 6 of Form T-1, Registration No. 33-64175.*.
7. A copy of the latest report of condition of the Trustee published
pursuant to law or the requirements of its supervising or
examining authority, filed herewith.
8. Not applicable.
9. Not applicable.
2
<PAGE>
* Exhibits thus designated are incorporated herein by reference to Exhibits
bearing identical numbers in Item 16 of the Form T-1 filed by the Trustee with
the Securities and Exchange Commission with the specific references noted.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the
Trustee, U.S. BANK TRUST NATIONAL ASSOCIATION, a national banking association
organized and existing under the laws of the United States of America, has duly
caused this statement of eligibility and qualification to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of
Chicago, State of Illinois on the 6th day of April, 1998.
U.S. BANK TRUST NATIONAL ASSOCIATION
By: /s/ Patricia M. Trlak
-------------------------------------
Patricia M. Trlak
Vice President and Assistant Secretary
3
<PAGE>
U.S. BANK TRUST NATIONAL ASSOCIATION
ARTICLES OF ASSOCIATION
For the purpose of organizing an association to perform any lawful
activities of national banks, the undersigned do enter into the following
Amended and Restated Articles of Association:
FIRST. The title of this Association shall be "U.S. Bank Trust
National Association."
SECOND. The main office of this Association shall be in the City of
Chicago, County of Cook and State of Illinois. The business of this Association
will be limited to that of a national trust bank, and to support activities
incidental thereto. This Association will not amend these Articles of
Association to expand the scope of or alter its business beyond that stated in
this Article Second without the prior approval of the Comptroller of the
Currency. Prior to the transfer of any stock of the Association, the
Association will seek the prior approval of the appropriate federal depository
institution regulatory agency.
THIRD. The board of directors of the Association shall consist of not
less than five nor more than 25 persons, the exact number to be fixed and
determined from time to time by resolution of a majority of the full board of
directors or by resolution of a majority of the shareholders at any annual or
special meeting thereof. Each director shall own common or preferred stock of
this Association with an aggregate par, fair market, or equity value of not less
than $1,000.00, as of either (i) the date of purchase, (ii) the date the person
became a director, whichever is more recent. Any combination of common or
preferred stock of this Association or U.S. Bancorp may be used.
Any vacancy in the board of directors may be filled by action of a
majority of the remaining directors between meetings of shareholders. The board
of directors may not increase the number of directors between meetings of
shareholders to a number that (1) exceeds by more than two the number of
directors last elected by shareholders where the number was fifteen or less; and
(2) exceeds by more than four the number of directors last elected by
shareholders where the number was sixteen or more, but in no event shall the
number of directors exceed twenty-five.
Terms of directors, including directors selected to fill vacancies,
shall expire at the next regular meeting of shareholders at which directors are
elected, unless the directors resign or are removed from office.
-1-
<PAGE>
Despite the expiration of a director's term, the director shall
continue to serve until his or her successor is elected and qualifies or until
there is a decrease in the number of directors and his or her position is
eliminated.
Honorary or advisory members of the board of directors, without voting
power or power of final decision in matters concerning the business of this
Association, may be appointed by resolution of a majority of the full board of
directors, or by resolution of shareholders at any annual or special meeting.
Honorary or advisory directors shall not be counted for purposes of determining
the number of directors of this Association or the presence of a quorum in
connection with any board action, and shall not be required to own qualifying
shares.
FOURTH. There shall be an annual meeting of the shareholders to elect
directors and transact whatever other business may be brought before the
meeting. It shall be held at the main office or any other convenient place the
board of directors may designate, on the day of each year specified therefore in
the bylaws, or if that day falls on a legal holiday in the State in which this
Association is located, on the next following banking day. If no election is
held on the day fixed, or in event of a legal holiday, an election may be held
on any subsequent day within sixty days of the day fixed, to be designated by
the board of directors, or, if the directors fail to fix the day, by
shareholders representing two-thirds of the shares issued and outstanding. In
all cases at least ten-days advance notice of the meeting shall be given to the
shareholders by first class mail.
A director may resign at any time by delivering written or oral notice
to the board of directors, its chairperson, or to this Association, which
resignation shall be effective when the notice is delivered unless the notice
specifies a later effective date.
A director may be removed by shareholders at a meeting called to
remove him or her, when notice of the meeting stating that the purpose or one of
the purposes is to remove him or her is provided, if there is a failure to
fulfill one of the affirmative requirements for qualification, or for cause;
PROVIDED, HOWEVER, that a director may not be removed if the number of votes
sufficient to elect him or her under cumulative voting is voted against his or
her removal.
FIFTH. The authorized amount of capital stock of this Association
shall be 10,000 shares of common stock of the par value of one-hundred dollars
($100.00) each; but said capital stock may be increased or decreased from time
to time, according to the provisions of the laws of the United States.
-2-
<PAGE>
No holder of shares of the capital stock of any class of this
Association shall have any preemptive or preferential right of subscription to
any shares of any class of stock of this Association, whether now or hereafter
authorized, or to any obligations convertible into stock of this Association,
issued, or sold, nor any right of subscription to any thereof other than such,
if any, as the board of directors, in its discretion may from time to time
determine and at such price as the board of directors may from time to time fix.
Unless otherwise specified in these Articles of Association or
required by law, (1) all matters requiring shareholder action, including
amendments to the articles of Association must be approved by shareholders
owning a majority voting interest in the outstanding voting stock, and (2) each
shareholder shall be entitled to one vote per share.
Unless otherwise provided in the bylaws, the record date for
determining shareholders entitled to notice of and to vote at any meeting is the
close of business on the day before the first notice is mailed or otherwise sent
to the shareholders, provided that in no event may a record date be more than
seventy days before the meeting.
SIXTH. The board of directors shall appoint one of its members
president of this Association and one of its members chairperson of the board.
The board of directors shall also have the power to appoint one or more vice
presidents, a secretary who shall keep minutes of the directors' and
shareholders' meetings and be responsible for authenticating the records of this
Association, and such other officers and employees as may be required to
transact the business of this Association. A duly appointed officer may appoint
one or more officers or assistant officers if authorized by the board of
directors in accordance with the bylaws.
The board of directors shall have the power to:
(1) Define the duties of the officers, employees, and agents of
this Association.
(2) Delegate the performance of its duties, but not the
responsibility for its duties, to the officers, employees,
and agents of this Association.
(3) Fix the compensation and enter into employment contracts
with its officers and employees upon reasonable terms and
conditions, consistent with applicable law.
(4) Dismiss officers and employees.
-3-
<PAGE>
(5) Require bonds from officers and employees and to fix the
penalty thereof.
(6) Ratify written policies authorized by this Association's
management or committees of the board.
(7) Regulate the manner in which any increase or decrease of the
capital of this Association shall be made; PROVIDED,
HOWEVER, that nothing herein shall restrict the power of
shareholders to increase or decrease the capital of this
Association in accordance with law, and nothing shall raise
or lower from two-thirds the percentage required for
shareholder approval to increase or reduce the capital.
(8) Manage and administer the business and affairs of this
Association.
(9) Adopt bylaws, not inconsistent with law or these Articles of
Association, for managing the business and regulating the
affairs of this Association.
(10) Amend or repeal bylaws, except to the extent that the
articles of Association reserve this power in whole or in
part to shareholders.
(11) Make contracts.
(12) Generally to perform all acts that are legal for a board of
directors to perform.
SEVENTH. The board of directors shall have the power to change the
location of the main office to any other place within the limits of the City of
Chicago without the approval of the shareholders, and shall have the power to
establish or change the location of any branch or branches of this Association
to any other location permitted under applicable law, without the approval of
the shareholders, subject to approval by the Comptroller of the Currency.
EIGHTH. The corporate existence of this Association shall continue
until terminated according to the laws of the United States.
-4-
<PAGE>
NINTH. The board of directors of this Association, or any three (3)
or more shareholders owning, in the aggregate, not less than twenty-five percent
(25%) of the stock of this Association, may call a special meeting of
shareholders at any time. Unless otherwise provided by the bylaws or the laws
of the United States, or waived by shareholders, a notice of the time, place,
and purpose of every annual and special meeting of the shareholders shall be
given by first-class mail, postage prepaid, mailed at least ten, and no more
than sixty, days prior to the date of the meeting to each shareholder of record
at his/her address as shown upon the books of this Association. Unless
otherwise provided by these Articles of Association or the bylaws, any action
requiring approval of shareholders must be effected at a duly called annual or
special meeting.
TENTH. Any action required to be taken at a meeting of the
shareholders or directors or any action that may be taken at a meeting of the
shareholders or directors may be taken without a meeting if consent in writing,
setting forth the action as taken shall be signed by all the shareholders or
directors entitled to vote with respect to the matter thereof. Such action
shall be effective on the date on which the last signature is placed on the
writing, or such earlier date as is set forth therein.
ELEVENTH. Meetings of the board of directors or shareholders, regular
or special, may be held by means of conference telephone or similar
communication equipment by means of which all persons participating in the
meeting can simultaneously hear each other, and participation in such meeting by
such aforementioned means shall constitute presence in person at such meeting.
TWELFTH. (a) Any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than any action
by or in the right of the Association) by reason of the fact that he is or was a
director, officer, employee or agent of the Association, or is or was serving at
the request of the Association as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
shall be indemnified by the Association, unless similar indemnification is
provided by such other corporation, partnership, joint venture, trust or other
enterprise (any funds received by any person as a result of the provisions of
this Article being deemed an advance against his receipt of any such other
indemnification from any such other corporation, partnership, joint venture,
trust or other enterprise), against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding if such person
acted in good faith and in a manner such person reasonably believed to be in or
not opposed to the best interest of the Association, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction
-5-
<PAGE>
or upon a plea of NOLO CONTENDERE or its equivalent, shall not, of itself,
create a presumption that the person seeking indemnification did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to
the best interest of the Association, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was unlawful.
(b) Any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
Association to procure a judgment in its favor by reason of the fact that such
person is or was a director, officer, employee or agent of the Association, or
is or was serving at the request of the Association as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other corporation, partnership, joint venture, trust or other enterprise shall
be indemnified by the Association, unless similar indemnification is provided by
such other corporation, partnership, joint venture, trust or other enterprise
(any funds received by any person as a result of the provisions of this Article
being deemed an advance against his receipt of any such other indemnification
from any such other corporation, partnership, joint venture, trust or other
enterprise), against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of such
action or suit if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Association and except that
no indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Association
unless and only to the extent that the Court of Chancery of the State of
Delaware or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
of the circumstances of the case, such person is fairly and reasonably entitled
to indemnify for such expenses which the Court of Chancery or such other court
shall deem proper.
(c) To the extent that a director, officer, employee or agent of the
Association has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in paragraphs (a) and (b), or in defense
of any claim, issue or matter therein, such person shall be indemnified by the
Association against expenses (including attorneys' fees) actually and reasonably
incurred by such person in connection therewith.
(d) Except as set forth in paragraph (c) of this Article, any
indemnification under paragraphs (a) and (b) of this Article (unless ordered by
the court), shall be made by the Association only as authorized in the specific
case upon a determination that indemnification of the director, officer,
employee or agent is proper in the circumstances because such person has met the
applicable standard of conduct set forth in paragraphs (a) and (b) of this
Article. Such determination shall be made (1) by a majority vote of the
directors who are not parties to such action, suit or proceeding,
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<PAGE>
even though less than a quorum, or (2) if there are no such directors, or if
such directors so direct, by independent legal counsel in a written opinion, or
(3) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the Association in advance of the
final disposition of such action, suit or proceeding upon receipt of any
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the Association. Such expenses (including attorneys' fees) incurred by other
employees and agents may be so paid upon such terms and conditions, if any, as
the Board of Directors deems appropriate.
(f) The indemnification and advancement of expenses provided by this
Article shall not be deemed exclusive of any other rights to which those seeking
indemnification or seeking advancement of expenses may be entitled under any
by-law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in an official capacity and as to action in
another capacity while holding such office.
(g) By action of the Board of Directors, notwithstanding any interest of
the directors in the action, the Association may purchase and maintain
insurance, in such amounts as the Board of Directors deems appropriate, on
behalf of any person who is or was a director, officer, employee or agent of the
Association, or is or was serving at the request of the Association as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the Association shall have the power to indemnify him against
such liability under the provisions of this Article.
(h) For purpose of this Article, references to "the Association" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, employees or agents, so that any
person who is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, shall stand in the same position under
this Article with respect to the resulting or surviving corporation as he would
have with respect to such constituent corporation if its separate existence had
continued.
(i) For purposes of this Article, references to "other enterprises" shall
include employee benefit plans; reference to "fines" shall include any excise
taxes assessed on a
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<PAGE>
person with respect to an employee benefit plan; and references to "serving at
the request of the Association" shall include any service as a director,
officer, employee or agent of the Association which imposes duties on, or
involves services by, such director, officer, employee or agent with respect to
an employee benefit plan, its participants or beneficiaries; and a person who
acted in good faith and in a manner he reasonably believed to be in the interest
of the participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner "not opposed to the best interests of the
Association" as referred to in this Article.
(j) The indemnification and advancement of expenses hereby provided shall,
unless otherwise provided when authorized or ratified, continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such person.
THIRTEENTH. These Articles of Association may be amended at any
regular or special meeting of the shareholders by the affirmative vote of the
holders of a majority of the stock of this Association, unless the vote of the
holders of a greater amount of stock is required by law, and in that case by the
vote of the holders of such greater amount. This Association's board of
directors may propose one or more amendments to these Articles of Association
for submission to the shareholders.
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<PAGE>
U.S. BANK TRUST NATIONAL ASSOCIATION
BYLAWS
AS LAST AMENDED ON MARCH 30, 1998
ARTICLE I
MEETINGS OF SHAREHOLDERS
Section 1.1. ANNUAL MEETING. The annual meeting of the shareholders,
for the election of directors and the transaction of other business, shall be
held at a time and place as the Chairman or President may designate. Notice
of such meeting shall be given at least ten days prior to the date thereof,
to each shareholder of the Association. If, for any reason, an election of
directors is not made on the designated day, the election shall be held on
some subsequent day, as soon thereafter as practicable, with prior notice
thereof.
Section 1.2. SPECIAL MEETINGS. Except as otherwise specially provided
by law, special meetings of the shareholders may be called for any purpose,
at any time by a majority of the board of directors, or by any shareholder or
group of shareholders owning at least ten percent of the outstanding stock.
Every such special meeting, unless otherwise provided by law, shall be called
upon not less than ten days prior notice stating the purpose of the meeting.
Section 1.3. NOMINATIONS FOR DIRECTORS. Nominations for election to the
board of directors may be made by the board of directors or by any
shareholder.
Section 1.4. PROXIES. Shareholders may vote at any meeting of the
shareholders by proxies duly authorized in writing. Proxies shall be valid
only for one meeting and any adjournments of such meeting and shall be filed
with the records of the meeting.
Section 1.5. QUORUM. A majority of the outstanding capital stock,
represented in person or by proxy, shall constitute a quorum at any meeting
of shareholders, unless otherwise provided by law. A majority of the votes
cast shall decide every question or matter submitted to the shareholders at
any meeting, unless otherwise provided by law or by the Articles of
Association.
ARTICLE II
DIRECTORS
Section 2.1. BOARD OF DIRECTORS. The board of directors (hereinafter
referred to as the "board"), shall have power to manage and administer the
business and affairs of the Association. All authorized corporate powers of
the Association shall be vested in and may be exercised by the board.
Section 2.2. POWERS. In addition to the foregoing, the board of
directors shall have and may exercise all of the powers granted to or
conferred upon it by the Articles of Association, the Bylaws and by law.
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<PAGE>
Section 2.3. NUMBER. The board shall consist of a number of members to
be fixed and determined from time to time by resolution of the board or the
shareholders at any meeting thereof, in accordance with the Articles of
Association.
Section 2.4. ORGANIZATION MEETING. The newly elected board shall meet
for the purpose of organizing the new board and electing and appointing such
officers of the Association as may be appropriate. Such meeting shall be held
on the day of the election or as soon thereafter as practicable, and, in any
event, within thirty days thereafter. If, at the time fixed for such meeting,
there shall not be a quorum present, the directors present may adjourn the
meeting until a quorum is obtained.
Section 2.5. REGULAR MEETINGS. The regular meetings of the board shall
be held, without notice, as the Chairman or President may designate and deem
suitable.
Section 2.6. SPECIAL MEETINGS. Special meetings of the board may be
called by the Chairman or the President of the Association, or at the request
of two or more directors. Each member of the board shall be given notice
stating the time and place of each such meeting.
Section 2.7. QUORUM. A majority of the directors shall constitute a
quorum at any meeting, except when otherwise provided by law; but fewer may
adjourn any meeting. Unless otherwise provided, once a quorum is established,
any act by a majority of those constituting the quorum shall be the act of
the board.
Section 2.8. VACANCIES. When any vacancy occurs among the directors,
the remaining members of the board may appoint a director to fill such
vacancy at any regular meeting of the board, or at a special meeting called
for that purpose.
ARTICLE III
COMMITTEES
Section 3.1. ADVISORY BOARD OF DIRECTORS. The board may appoint
persons, who need not be directors, to serve as advisory directors on an
advisory board of directors established with respect to the business affairs
of either this Association alone or the business affairs of a group of
affiliated organizations of which this Association is one. Advisory directors
shall have such powers and duties as may be determined by the board,
provided, that the board's responsibility for the business and affairs of
this Association shall in no respect be delegated or diminished.
Section 3.2. AUDIT COMMITTEE. The board shall appoint an Audit
Committee which shall consist of at least two Directors of the Association or
of an affiliate of the Association. If legally permissible, the board may
determine to name itself as the Audit Committee. The Audit Committee shall
direct and review audits of the Association's fiduciary activities.
The members of the Audit Committee shall be appointed each year and
shall continue to act until their successors are named. The Audit Committee
shall have power to adopt its own rules and procedures and to do those things
which in the judgment of such Committee are
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<PAGE>
necessary or helpful with respect to the exercise of its functions or the
satisfaction of its responsibilities.
Section 3.3. EXECUTIVE COMMITTEE. The board may appoint an Executive
Committee which shall consist of at least three directors and which shall
have, and may exercise, all the powers of the board between meetings of the
board or otherwise when the board is not meeting.
Section 3.4. OTHER COMMITTEES. The board may appoint, from time to
time, committees of one or more persons who need not be directors, for such
purposes and with such powers as the board may determine. In addition, either
the Chairman or the President may appoint, from time to time, committees of
one or more officers, employees, agents or other persons, for such purposes
and with such powers as either the Chairman or the President deems
appropriate and proper.
Whether appointed by the board, the Chairman, or the President, any such
Committee shall at all times be subject to the direction and control of the
board.
Section 3.5. MEETING MINUTES AND RULES. An advisory board of directors
and/or committee shall meet as necessary in consideration of the purpose of
the advisory board of directors or committee, and shall maintain minutes in
sufficient detail to indicate actions taken or recommendations made; unless
required by the members, discussions, votes or other specific details need
not be reported. An advisory board of directors or a committee may, in
consideration of its purpose, adopt its own rules for the exercise of any of
its functions or authority.
ARTICLE IV
OFFICERS AND EMPLOYEES
Section 4.1. CHAIRMAN OF THE BOARD. The board may appoint one of its
members to be Chairman of the board to serve at the pleasure of the board.
The Chairman shall supervise the carrying out of the policies adopted or
approved by the board; shall have general executive powers, as well as the
specific powers conferred by these Bylaws; shall also have and may exercise
such powers and duties as from time to time may be conferred upon or assigned
by the board.
Section 4.2. PRESIDENT. The board may appoint one of its members to be
President of the Association. In the absence of the Chairman, the President
shall preside at any meeting of the board. The President shall have general
executive powers, and shall have and may exercise any and all other powers
and duties pertaining by law, regulation or practice, to the Office of
President, or imposed by these Bylaws. The President shall also have and may
exercise such powers and duties as from time to time may be conferred or
assigned by the board.
Section 4.3. VICE PRESIDENT. The board may appoint one or more Vice
Presidents who shall have such powers and duties as may be assigned by the
board and to perform the duties of the President on those occasions when the
President is absent, including presiding at any meeting of the board in the
absence of both the Chairman and President.
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<PAGE>
Section 4.4. SECRETARY. The board shall appoint a Secretary, or other
designated officer who shall be Secretary of the board and of the
Association, and shall keep accurate minutes of all meetings. The Secretary
shall attend to the giving of all notices required by these Bylaws to be
given; shall be custodian of the corporate seal, records, document and papers
of the Association; shall provide for the keeping of proper records of all
transactions of the Association; shall have and may exercise any and all
other powers and duties pertaining by law, regulation or practice, to the
Secretary, or imposed by these Bylaws; and shall also perform such other
duties as may be assigned from time to time by the board.
Section 4.5. OTHER OFFICERS. The board may appoint, and may authorize
the Chairman or the President to appoint, any officer as from time to time
may appear to the board, the Chairman or the President to be required or
desirable to transact the business of the Association. Such officers shall
exercise such powers and perform such duties as pertain to their several
offices, or as may be conferred upon or assigned to them by these Bylaws, the
board, the Chairman or the President.
Section 4.6. TENURE OF OFFICE. The Chairman or the President and all
other officers shall hold office for the current year for which the board was
elected, unless they shall resign, become disqualified, or be removed. Any
vacancy occurring in the Office of Chairman or President shall be filled
promptly by the board.
Any officer elected by the board or appointed by the Chairman or the
President may be removed at any time, with or without cause, by the
affirmative vote of a majority of the board or, if such officer was appointed
by the Chairman or the President, by the Chairman or the President,
respectively.
ARTICLE V
STOCK
Section 5.1. Shares of stock shall be transferable on the books of the
Association, and a transfer book shall be kept in which all transfers of
stock shall be recorded. Every person becoming a shareholder by such transfer
shall, in proportion to such person's shares, succeed to all rights of the
prior holder of such shares. Each certificate of stock shall recite on its
face that the stock represented thereby is transferable only upon the books
of the Association properly endorsed.
ARTICLE VI
CORPORATE SEAL
Section 6.1. The Association shall have no corporate seal; provided,
however, that if the use of a seal is required by, or is otherwise convenient
or advisable pursuant to, the laws or regulations of any jurisdiction, the
following seal may be used, and the Chairman, the President, the Secretary
and any Assistant Secretary shall have the authority to affix such seal:
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<PAGE>
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.1. EXECUTION OF INSTRUMENTS. All agreements, checks, drafts,
orders, indentures, notes, mortgages, deeds, conveyances, transfers,
endorsements, assignments, certificates, declarations, receipts, discharges,
releases, satisfactions, settlements, petitions, schedules, accounts,
affidavits, bonds, undertakings, guarantees, proxies and other instruments or
documents may be signed, countersigned, executed, acknowledged, endorsed,
verified, delivered or accepted on behalf of the Association, whether in a
fiduciary capacity or otherwise, by any officer of the Association, or such
employee or agent as may be designated from time to time by the board by
resolution, or by the Chairman or the President by written instrument, which
resolution or instrument shall be certified as in effect by the Secretary or
an Assistant Secretary of the Association. The provisions of this section are
supplementary to any other provision of the Articles of Association or Bylaws.
Section 7.2. RECORDS. The Articles of Association, the Bylaws and the
proceedings of all meetings of the shareholders, the board, and standing
committees of the board, shall be recorded in appropriate minute books
provided for the purpose. The minutes or each meeting shall be signed by the
Secretary, or other officer appointed to act as Secretary of the meeting.
Section 7.3. TRUST FILES. There shall be maintained in the Association
files all fiduciary records necessary to assure that its fiduciary
responsibilities have been properly undertaken and discharged.
Section 7.4. TRUST INVESTMENTS. Funds held in a fiduciary capacity
shall be invested according to the instrument establishing the fiduciary
relationship and according to law. Where such instrument does not specify the
character and class of investments to be made and does not vest in the
Association a discretion in the matter, funds held pursuant to such
instrument shall be invested in investments in which corporate fiduciaries
may invest under law.
Section 7.5. NOTICE. Whenever notice is required by the Articles of
Association, the Bylaws or law, such notice shall be by mail, postage
prepaid, telegram, in person, or by any other means by which such notice can
reasonably be expected to be received, using the address of the person to
receive such notice, or such other personal data, as may appear on the
records of the Association. Prior notice shall be proper if given not more
than 30 days nor less than 10 days prior to the event for which notice is
given.
ARTICLE VIII
INDEMNIFICATION
Section 8.1. The Association shall indemnify to the full extent
permitted by, and in the manner permissible under, the Articles of
Association and the laws of the United States of America, as applicable and
as amended from time to time, any person made, or threatened to be made, a
party to any action, suit or proceeding, whether criminal, civil,
administrative or investigative, by reason of the fact that such person is or
was a director, advisory director, officer
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<PAGE>
or employee of the Association, or any predecessor of the Association, or served
any other enterprise as a director or officer at the request of the Association
or any predecessor of the Association.
Section 8.2. The board in its discretion may, on behalf of the
Association, indemnify any person, other than a director, advisory director,
officer or employee, made a party to any action, suit or proceeding by reason
of the fact that such person is or was an agent of the Association or any
predecessor of the Association serving in such capacity at the request of the
Association or any predecessor of the Association.
ARTICLE IX
INTERPRETATION AND AMENDMENT
Section 9.1. These Bylaws shall be interpreted in accordance with and
subject to appropriate provisions of law, and may be amended, altered or
repealed, at any regular or special meeting of the board.
Section 9.2. A copy of the Bylaws, with all amendments, shall at all
times be kept in a convenient place at the main office of the Association,
and shall be open for inspection to all shareholders during Association hours.
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<PAGE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1997
All schedules are to be reported in thousands of dollars. Unless
otherwise indicated, report the amount outstanding as of the last business
day of the quarter.
SCHEDULE RC - BALANCE SHEET
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN THOUSANDS
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions RCON
(from Schedule RC-A): -----
a. Noninterest-bearing balances and currency and coin (1)_____________________________ 0081 . . . . 55,536 1.a
b. Interest-bearing balances (2)______________________________________________________ 0071 . . . . 0 1.b
2. Securities:
a. Held-to-maturity securities (from Schedule RC-B, column A)_________________________ 1754 . . . . 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)_______________________ 1773 . . . . 3,216 2.b
3. Federal funds sold and securities purchased under agreements to resell_________________ 1350 . . . . 0 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income RCON
----
(from Schedule RC-C)______________________________________________ 2122 . . . 0 4.a
b. LESS: Allowance for loan and lease losses ________________________ 3123 . . . 0 . . . . . 4.b
c. LESS: Allocated transfer risk reserve ____________________________ 3128 . . . 0 4.c
d. Loans and leases, net of unearned income, allowance, and reserve
(item 4.a minus 4.b and 4.c______________________________________________________ 2125 . . . . 0 4.d
5. Trading assets_________________________________________________________________________ 3345 . . . . 0 5.
6. Premises and fixed assets owned (including capitalized leases)_________________________ 2145 . . . . 95 6.
7. Other real estate owned (from Schedule RC-M)___________________________________________ 2150 . . . . 0 7.
8. Investments in unconsolidated subsidiaries and associated companies (from
Schedule RC-M)_______________________________________________________________________ 2130 . . . . 0 8.
9. Customer's liability to this bank on acceptances outstanding___________________________ 2155 . . . . 0 9.
10. Intangible assets (from Schedule RC-M)_________________________________________________ 2143 . . . . 48,072 10.
11. Other assets (from Schedule Rc-F)______________________________________________________ 2160 . . . . 2,435 11.
12. Total assets (sum of items 1 through 11)_______________________________________________ 2170 . . . . 109,354 12.
</TABLE>
__________________
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
SCHEDULE RC - CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN THOUSANDS
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
LIABILITIES
13. Deposits RCON
a. In domestic offices (sum of totals of columns A and C from -----
(Schedule RC-E):_________________________________________________________________ 2200 . . . . 0 13.a
RCON
----
(1) Noninterest-bearing (1)_________________________________________ 6631 . . 0 . . . . . 13.a.1
(2) Interest bearing________________________________________________ 6636 . . 0 . . . . . 13.a.2
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs______________________ . . . . .
(1) Noninterest-bearing __________________________________________________________ . . . . .
(2) Interest-bearing______________________________________________________________ . . . . .
14. Federal funds purchased and securities sold under agreements to repurchase_____________ 2800 . . . . 0 14.
15. a. Demand notes issued to the U.S. Treasury___________________________________________ 2840 . . . . 0 15.a
b. Trading Liabilities________________________________________________________________ 3548 . . . . 0 15.b
16. Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases):
a. With a remaining maturity of one year or less______________________________________ 2332 . . . . 0 16.a
b. With a remaining maturity of more than one year through three years________________ 4547 . . . . 0 16.b
c. With a remaining maturity of more than three years_________________________________ 4548 . . . . 0 16.c
17. Not applicable.
18. Bank's liability on acceptances executed and outstanding_______________________________ 2920 . . . . 0 18.
19. Subordinated notes and debentures (2)__________________________________________________ 3200 . . . . 0 19.
20. Other liabilities (from Schedule RC-G)_________________________________________________ 2930 . . . . 2,072 20.
21. Total liabilities (sum of items 13 through 20)_________________________________________ 2948 . . . . 2,072 21.
22. Not applicable.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus__________________________________________ 3830 . . . . 0 23.
24. Common stock___________________________________________________________________________ 3230 . . . . 1,000 24.
25. Surplus (exclude all surplus related to preferred stock)_______________________________ 3839 . . . . 106,712 25.
26. a. Undivided profits and capital reserves______________________________________________ 3632 . . . . (430) 26.a
b. Net unrealized holding gains (losses) on available-for-sale securities______________ 8434 . . . . 0 26.b
27. Cumulative foreign currency translation adjustments____________________________________ . . . . . . . . . . .
28. Total equity capital (sum of items 23 through 27)______________________________________ 3210 . . . . 107,282 28.
29. Total liabilities and equity capital (sum of items 21 and 28)__________________________ 3300 . . . . 109,354 29.
MEMORANDUM
TO BE REPORTED ONLY WITH THE MARCH REPORT OF CONDITION.
1. Indicate in the box at the right the number of the statement below that best
describes the most comprehensive level of auditing work performed for the bank
by independent external auditors as of any date during 1996____________________________ 6742 . . . N/A M.1.
</TABLE>
1 - Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank.
2 - Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified
public accounting firm which submits a report on the consolidated holding
company (but not on the bank separately)
3 - Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 - Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 - Review of the banks' financial statements by external auditors.
6 - Compilation of the banks's financial statements by external auditors.
7 - Other audit procedures (excluding tax preparation work)
8- No external audit work.
________________________
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited life preferred stock and related surplus.
<PAGE>
SCHEDULE RC-A - CASH AND BALANCES DUE FROM DEPOSITORY INSTITUTIONS
Exclude assets held for trading.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN THOUSANDS
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
RCON
1. Cash items in process of collection, unposted debits, and currency and coin: ----
a. Cash items in process of collection and unposted debits___________________________ 0020 . . . . 0 1.a
b. Currency and coin_________________________________________________________________ 0080 . . . . 0 1.b
2. Balances due from depository institutions in the U.S.:
a. U.S. branches and agencies of foreign banks_______________________________________ 0083 . . . . 0 2.a
b. Other commercial banks in the U.S. and other depository institutions in the U.S.__ 0085 . . . . 55,536 2.b
3. Balances due from banks in foreign countries and foreign central banks:
a. Foreign branches of other U.S. banks______________________________________________ 0073 . . . . 0 3.a
b. Other banks in foreign countries and foreign central banks________________________ 0074 . . . . 0 3.b
4. Balances due from Federal Reserve Banks_______________________________________________ 0090 . . . . 0 4.
5. Total (sum of items 1 through 4) (must equal Schedule RC, sum of items 1.a and 1.b)___ 0010 . . . . 55,536 5.
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MEMORANDUM
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN THOUSANDS
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<S> <C> <C> <C>
RCON
1. Noninterest-bearing balances due from commercial banks in the U.S. ----
(included in items 2.a and 2.b above)_______________________________________________ 0050 55,536 M.1
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