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1,500,000 COMMON SHARES
CENTERPOINT PROPERTIES TRUST
UNDERWRITING AGREEMENT
Common Shares of Beneficial Interest, $.001 par value per share
November 17, 2000
LEHMAN BROTHERS INC.
FIRST UNION SECURITIES, INC.
c/o Lehman Brothers Inc.
3 World Financial Center
New York, New York 10285
Dear Sirs:
CenterPoint Properties Trust, a Maryland real estate investment trust
(the "COMPANY"), proposes to sell 1,500,000 shares (the "SHARES") of the
Company's common shares of beneficial interest, par value $.001 per share (the
"COMMON SHARES") to you (the "UNDERWRITERS"). This is to confirm the agreement
concerning the purchase of the Shares from the Company by the Underwriters.
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY.
The Company represents, warrants and agrees that:
(a) Two registration statements (File Nos. 333-49359 and 333-42748) on
Form S-3, and amendments thereto, with respect to the securities registered
thereunder (the "SHELF SECURITIES") to be issued from time to time have (i) been
prepared by the Company in conformity with the requirements of the Securities
Act of 1933, as amended (the "SECURITIES ACT") and the rules and regulations
(the "RULES AND REGULATIONS") of the Securities and Exchange Commission (the
"COMMISSION") promulgated thereunder, (ii) been filed with the Commission under
the Securities Act and (iii) become effective under the Securities Act. Copies
of such registration statements and the amendments thereto have been delivered
by the Company to you. As used in this Agreement, "EFFECTIVE TIME" means the
dates and the times as of which such registration statements, or the most recent
post-effective amendment thereto, if any, were declared effective by the
Commission; "Effective Date" means the dates of the Effective Time. The
registration statements as amended to the date of this Agreement are hereinafter
referred to collectively as the "REGISTRATION STATEMENT" and the related
prospectus covering the Shelf Securities in the form first used to confirm sales
of the Shares is hereinafter referred to as the "BASIC PROSPECTUS." The Basic
Prospectus as supplemented by the prospectus supplement specifically relating to
the Shares 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") or the
Prospectus shall be deemed to refer to and include the documents
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incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Securities Act which were filed under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "EXCHANGE ACT") on or before the date of this Agreement or
the date of the Basic Prospectus, any preliminary prospectus or the Prospectus,
as the case may be; and any reference to "amend," "amendment" or "supplement"
with respect to the Registration Statement, the Basic Prospectus, any
preliminary prospectus or the Prospectus shall be deemed to refer to and include
any documents filed under the Exchange Act after the date of this Agreement, or
the date of the Basic Prospectus, any preliminary prospectus or the Prospectus,
as the case may be, which are deemed to be incorporated by reference therein.
The Commission has not issued any order preventing or suspending the use of any
Preliminary Prospectus.
(b) The documents incorporated by reference in the Prospectus, when they
became effective or were filed, as amended, 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
information furnished to the Company by or on behalf of any Underwriter
specifically for inclusion therein.
(d) The Company and CP Financing Trust, a Maryland real estate investment
trust ("CPFT"), have been duly organized under the Maryland General Corporation
Law and are validly existing as trusts in good standing under the laws of
Maryland and are duly qualified to do business and in good standing as foreign
trusts in each jurisdiction in which their respective ownership or lease of
property or the conduct of their respective business requires such
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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.
(e) Other than CPFT, the Company's subsidiaries have been duly
incorporated and are validly existing as corporations in good standing under the
laws of their respective jurisdictions of incorporation, are duly qualified to
do business and are in good standing as foreign corporations in each
jurisdiction in which their respective ownership or lease of property or the
conduct of their respective businesses requires such qualification, except in
any such case where the failure to so qualify or be in good standing would not
have a material adverse effect upon the Company and its subsidiaries taken as a
whole; 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, except for CPFT, none of the subsidiaries of the Company is a "significant
subsidiary," as such term is defined in Rule 405 of the Rules and Regulations.
(f) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of beneficial interest of the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable, are not subject to preemptive or other similar rights, 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.
(g) The unissued Shares to be issued and sold by the Company to the
Underwriters hereunder have been duly and validly authorized and, when issued
and delivered against payment therefor as provided herein, will be duly and
validly issued, fully paid and non-assessable; and the Shares will conform to
the descriptions thereof contained in the Prospectus.
(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 by the Company and the consummation
of the transactions contemplated hereby have been duly authorized by all
necessary 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 by-laws of the Company or CPFT or the charter or
by-laws of any of the Company's 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 Shares 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 Shares by the Underwriters,
no consent,
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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 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 and of its subsidiaries taken as a whole, except
as incurred in the ordinary course of business, 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 and cash flows 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; and the financial schedules
and other financial information included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the information
required to be stated therein.
(l) PricewaterhouseCoopers L.L.P., who have certified certain financial
statements of the Company and whose report is incorporated by reference 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 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,
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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 except for any such defaults 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; (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 which exercise of such option or right
would, either 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; (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, except as
may be described in the Prospectus or any such matter 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.
(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 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.
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(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 and each ERISA Affiliate (i.e. any trade or business that
is treated as a single employer with the Company under Section 414 under the
Internal Revenue Code of 1986, as amended, including the regulations and
published interpretations thereunder (the "CODE")) have operated and
administered each "employee benefit plan" (as defined in ERISA) in compliance in
all material respects with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, including the regulations
and published interpretations thereunder ("ERISA"); no "reportable event" (as
defined in ERISA) has occurred with respect to any "pension plan" (as defined in
ERISA) for which the Company or any ERISA Affiliate would have any liability;
neither the Company nor any ERISA Affiliate has incurred nor expects 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 Code;
and each "pension plan" for which the Company or any ERISA Affiliate 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 or
contemplated in the Prospectus, the Company has not (i) issued or granted any
securities, (ii) incurred any material liability or obligation, direct or
contingent, other than liabilities and obligations which were incurred in the
ordinary course of business, (iii) entered into any material transaction not in
the ordinary course of business or (iv) declared or paid any dividend on its
capital stock.
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(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, (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 result in remedial
action or the modification or cessation of any activity of the Company or any of
its subsidiaries under any applicable law, common law, ordinance, rule,
regulation, order, judgment, decree or permit, except for any violation,
remedial action, damages, modification or cessation which would not have, singly
or in the aggregate with all such violations, remedial actions, damages,
modifications or cessations, a material adverse effect on the consolidated
financial position, stockholders' equity, results of operations, business or
prospects of the Company and its subsidiaries; and there has been no material
spill, discharge, leak, emission, 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 consolidated financial position,
stockholders' equity, results of operations, business or prospects of the
Company and its subsidiaries.
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(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.
(bb) 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.
(cc) 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 (i) the cost of acquisition of such
property or assets and (ii) the cost of construction of the improvements located
on such properties.
2. PURCHASE OF THE SHARES 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 at a price of $42.25 per share the number of Shares
set forth opposite such Underwriter's name in Schedule I hereto.
The Company shall not be obligated to deliver any of the Shares to be
delivered on the Delivery Date (as hereinafter defined) except upon payment for
all the Shares to be purchased on the Delivery Date as provided herein.
3. OFFERING OF SHARES BY THE UNDERWRITERS.
Upon authorization by the Underwriters of the release of the Shares, the
several Underwriters propose to offer the Shares for sale upon the terms and
conditions set forth in the Prospectus.
4. DELIVERY OF AND PAYMENT FOR THE SHARES.
Delivery of and payment for the Shares 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 Shares 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
Shares shall be registered in such names and in such denominations as the
Underwriters shall request in writing not less than two full business days prior
to the Delivery
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Date. For the purpose of expediting the checking and packaging of the
certificates for the Shares, the Company shall make the certificates
representing the Shares 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 Shares 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;
(c) To deliver promptly to the Underwriters such number of the
following documents as the Underwriters shall request: (i) conformed copies
of the Registration Statement as originally filed with the Commission and
each amendment thereto (in each case excluding exhibits other than this
Agreement and the computation of per share earnings) and (ii) each
Preliminary Prospectus, the Prospectus and any amended or supplemented
Prospectus; and, if the delivery of a prospectus is required at any time in
connection with the offering or sale of the Shares 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,
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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;
(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;
(e) Prior to filing with the Commission (i) any amendment to the
Registration Statement or supplement to the Prospectus or (ii) any
Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a
copy thereof to the Underwriters and counsel for the Underwriters and
obtain the consent of the Underwriters to the filing;
(f) As soon as practicable after the Effective Date, but in any event
not later than 45 days after the end of its fiscal quarter in which the
first anniversary date of the Effective Date occurs, to make generally
available to the Company's security holders and to deliver to the
Underwriters an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Securities
Act and the Rules and Regulations (including, at the option of the Company,
Rule 158);
(g) For a period of five years following the Effective Date, to
furnish to the Underwriters copies of all materials furnished by the
Company to its shareholders and all public reports and all reports and
financial statements furnished by the Company to the principal national
securities exchange upon which the Common Shares 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 Shares 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 Shares; 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) For a period of 90 days from the date of the prospectus
supplement relating to the Shares, not to offer for sale, sell or otherwise
dispose of, directly or indirectly, any Common Shares or sell or grant
options, rights or warrants with respect to any Common Shares or sell or
otherwise dispose of securities convertible into or exchangeable or
exercisable for Common Shares, otherwise than in accordance with this
Agreement or as contemplated in the Prospectus or in connection with the
Company's employee and director benefit plans or in connection with the
conversion of securities convertible into Common Shares which are
outstanding as of the date hereof or without the prior written consent of
Lehman Brothers Inc.; and to cause each executive officer of
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the Company to furnish to Lehman Brothers Inc., prior to the Delivery Date,
a letter or letters, in form and substance satisfactory to counsel for the
Underwriters, pursuant to which each such person shall agree not to,
directly or indirectly, for a period of 90 days from the date of the
prospectus supplement, (1) offer for sale, sell, pledge or otherwise
dispose of (or enter into any transaction or device that is designed to, or
could be expected to, result in the disposition by any person at any time
in the future of), any Common Shares or sell or otherwise dispose of
securities convertible into or exchangeable or exercisable for Common
Shares or (2) enter into any swap or other derivatives transaction that
transfers to another, in whole or in part, any of the economic benefits or
risks of ownership of such Common Shares, whether any such transaction
described in clause (1) or (2) above is to be settled by delivery of Common
Shares or other securities, in cash or otherwise;
(j) To apply the net proceeds from the sale of the Shares being sold
by the Company as set forth in the Prospectus;
(k) To take such steps as shall be necessary to ensure that neither
the Company nor any subsidiary shall become an "investment company" within
the meaning of such term under the Investment Company Act of 1940 and the
rules and regulations of the Commission thereunder;
(l) To not, directly or indirectly, take any action designed to or
which will constitute or which might reasonably be expected to cause or
result in the manipulation or stabilization of the price of the Common
Shares;
(m) To file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act for so long as the delivery of a prospectus is required in connection
with the offering or sale of the Shares; and
(n) To use its reasonable best efforts to meet the requirements to
qualify as a "real estate investment trust" under the Code for the taxable
year in which sales of the Shares are to occur.
6. EXPENSES.
The Company agrees to pay (a) the costs incident to the authorization,
issuance, sale and delivery of the Shares 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
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<PAGE>
securing any required review by the National Association of Securities Dealers,
Inc. of the terms of sale of the Shares; (g) any applicable listing or other
fees; (h) the reasonable fees and expenses of qualifying the Shares 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 reasonable
costs and expenses incident to the performance of the obligations of the Company
under this Agreement; PROVIDED that, except as provided in this Section 6,
Section 8 and Section 11, the Underwriters shall pay their own costs and
expenses, including the costs and expenses of their counsel, any transfer taxes
on the Shares which they may sell and the expenses of advertising any offering
of the Shares 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 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 Chapman and Cutler, 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 Shares, the
Registration Statement and the Prospectus, and all other legal matters
relating to this Agreement and the transactions contemplated hereby shall
be reasonably satisfactory in all respects to counsel for the Underwriters,
and the Company shall have furnished to such counsel all documents and
information that they may reasonably request to enable them to pass upon
such matters.
(d) Kirkland & Ellis shall have furnished to the Underwriters its
written opinion, as counsel to the Company, addressed to the Underwriters
and dated the Delivery Date, substantially in the form attached hereto as
Exhibit A.
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<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,
and as to the compliance as to form of the registration statement on Form S-3
(Registration No. 333-49359) and any reports under the Exchange Act incorporated
therein which were filed prior to the filing of the Company's Form 10-K for the
year ended December 31, 1998, upon the opinion of Ungaretti & Harris, which
opinions 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 opinions. 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; such statement need not address the
financial statements and data included therein or omitted therefrom.
(e) Chapman and Cutler 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, Chapman and Cutler
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 reasonably satisfactory to counsel for the Underwriters. Chapman
and Cutler 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, 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; such statement need not address the financial
statements and data included therein or omitted therefrom.
(f) The Company shall have furnished to the Underwriters a letter
(the "BRING-DOWN LETTER") of PricewaterhouseCoopers L.L.P., 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
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<PAGE>
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) and 7(h) have been
fulfilled;
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued and, to the best of each such
officer's knowledge, no proceeding for that purpose is pending or
threatened by the Commission;
(iii) All filings required by Rule 424(b) of the Rules and
Regulations have been made; and
(iv) They have carefully examined the Registration Statement and
the Prospectus and, in their opinion (A) as of the Effective Date, the
Registration Statement and Prospectus did not include any untrue
statement of a material fact and did not omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and (B) since the Effective Date no event has
occurred which should have been set forth in a supplement or amendment
to the Registration Statement or the Prospectus which has not been so
set forth.
(h) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included in the Prospectus any loss or interference with its business from
fire, explosion, flood, earthquake or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the
Prospectus; (ii) since such date there shall not have been any change in
the capital stock or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries, otherwise than as set forth or contemplated in the
Prospectus, or (iii) trading in the Common Shares has not been suspended by
the Commission or the New York Stock Exchange, the effect of which, in any
such case described in clause (i), (ii) or (iii), is, in the judgment of
the Underwriters, so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
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<PAGE>
Shares 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 on the New York Stock Exchange, the American Stock Exchange or
the over-the-counter market shall have been suspended or minimum prices
shall have been established on either of such exchanges or such market by
the Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium shall
have been declared by Federal or state authorities, (iii) the United States
shall have become engaged in hostilities, there shall have been an
escalation in hostilities involving the United States or there shall have
been a declaration of a national emergency or war by the United States or
(iv) there shall have occurred such a material adverse change in general
economic, political or financial conditions (or the effect of international
conditions on the financial markets in the United States shall be such) as,
in the case of clause (v), to make it, in the judgment of Lehman Brothers
Inc., impractical or inadvisable to proceed with the public offering or
delivery of the Shares being delivered on the Delivery Date on the terms
and in the manner contemplated in the Prospectus.
(j) The New York Stock Exchange shall have approved the Shares for
listing, subject only to official notice of issuance.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably 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 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
Shares), 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
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<PAGE>
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 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 such 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 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 reasonably satisfactory to the indemnified party. After notice
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<PAGE>
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 the Underwriters shall have
reasonably concluded that there may be legal defenses available to them which
are different from or additional to those available to the Company, or the
Underwriters and the Company may have conflicting interests which would make it
inappropriate for the same counsel to represent both of them, and in that event
the fees and expenses of such separate counsel shall be paid by the Company. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending
or threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
(d) 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
Shares or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law or if the indemnified party failed to give the notice required
under Section 8(c), in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and the Underwriters on the other with respect to
the statements or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other with respect to such offering shall be deemed
to be in the same proportion as the total net proceeds from the offering of the
Shares 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 Shares and the total net proceeds
from the offering of the Shares 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
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<PAGE>
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 Shares
underwritten by it and distributed to the public was offered to the public
exceeds the amount of any damages which such Underwriter has otherwise paid or
become liable to pay by reason of any untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute as provided in
this Section 8(d) are several in proportion to their respective underwriting
obligations and not joint.
(e) The Underwriters severally confirm that the statements with respect to
the public offering of the Shares set forth on the cover page of, and under the
caption "Underwriting" in, the Prospectus are correct and constitute the only
information furnished in writing to the Company by or on behalf of the
Underwriters specifically for inclusion in the Registration Statement and the
Prospectus.
9. DEFAULTING UNDERWRITERS.
If, on either Delivery Date, any Underwriter defaults in the performance of
its obligations under this Agreement, the remaining non-defaulting Underwriters
shall be obligated to purchase the Shares which the defaulting Underwriter
agreed but failed to purchase on the Delivery Date in the respective proportions
which the number of Shares set opposite the name of each remaining
non-defaulting Underwriter in Schedule I hereto bears to the total number of
shares of the Shares set opposite the names of all the remaining non-defaulting
Underwriters in Schedule 1 hereto; PROVIDED, HOWEVER, that the remaining
non-defaulting Underwriters shall not be obligated to purchase any of the Shares
on the Delivery Date if the total number of Shares which the defaulting
Underwriter or Underwriters agreed but failed to purchase on such date exceeds
9.09% of the total number of Shares 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 shares of the Shares 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 Shares to be purchased on the Delivery Date. If
the remaining Underwriters or other underwriters satisfactory to the
Underwriters do not elect to purchase the shares which the defaulting
Underwriter or Underwriters agreed but failed to purchase on 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,
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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 Shares which a defaulting Underwriter
agreed but failed to purchase.
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 Shares 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 Shares, 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 Shares for any reason permitted under this Agreement.
11. REIMBURSEMENT OF UNDERWRITERS' EXPENSES.
(a) If the Company shall fail to tender the Shares for delivery to the
Underwriters unless for any reason permitted under this Agreement, the Company
shall reimburse the Underwriters reasonable fees and expenses of Underwriters'
counsel and for such other reasonable out of pocket expenses as shall have been
incurred by the Underwriters in connection with this Agreement and the proposed
purchase of the Shares, and upon demand the Company shall pay the full amount to
the Underwriters.
(b) If the Underwriters shall decline to purchase the Shares for any
reason permitted under this Agreement (including the termination of this
Agreement pursuant to Section 10), the Company shall reimburse the Underwriters
50% of the aggregate of the reasonable fees and expenses of Underwriters'
counsel and such other reasonable out-of-pocket expenses as shall have been
incurred by the Underwriters in connection with this Agreement and the proposed
purchase of the Shares, and upon demand the Company shall pay such amount 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: 212-526-3746).
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(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: John Gates, President and Chief
Executive Officer (Fax: 630-586-8010).
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 Shares 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 is open for trading and (b) "subsidiary" has the
meaning set forth in Rule 405 of the Rules and Regulations.
16. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the
laws of New York.
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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.
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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: /s/ Paul S. Fisher
-------------------------------------------
Name: Paul S. Fisher
Title: Executive Vice President, Secretary,
Chief Financial Officer and General
Counsel
Accepted:
LEHMAN BROTHERS INC.
FIRST UNION SECURITIES, INC.
By: LEHMAN BROTHERS INC.
/s/ Brett Bossung
-----------------------------------
Name: Brett Bossung
Title: Managing Director
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SCHEDULE I
<TABLE>
<CAPTION>
NUMBER OF
UNDERWRITERS SHARES
------------------------------------------------ ----------------------------------
<S> <C>
Lehman Brothers Inc. 1,125,000
First Union Securities, Inc. 375,000
---------
Total 1,500,000
=========
</TABLE>
<PAGE>
EXHIBIT A
1. Each of the Company and CPFT is validly existing and in good
standing under the laws of Maryland, each is duly qualified to transact business
as a foreign trust and is in good standing under the laws of the jurisdictions
specified in a schedule to this opinion, 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.
2. The Company has authorized shares of beneficial interest as set forth
in the Prospectus, and all of the issued shares of beneficial interest of the
Company have been duly and validly authorized and issued, are fully paid and
non-assessable and conform to the description thereof contained in the
Prospectus; and all of the issued shares of beneficial interest of CPFT have
been duly and validly authorized and issued, and are fully paid and
non-assessable.
3. The Shares to be issued and sold by the Company to the Underwriters
have been duly and validly authorized and, when issued and delivered against
payment therefor, the Shares will be duly and validly issued, fully paid and
non-assessable. The Shares conform to the description thereof contained in the
Prospectus.
4. The Registration Statement was declared effective under the Securities
Act as of November 7, 2000, and to such counsel's knowledge after inquiry of the
Commission staff, no stop order suspending the effectiveness of the Registration
Statement, and no order directed at any amendment or supplement thereto has been
issued and no proceedings for that purpose have been instituted or threatened or
are contemplated by the Commission.
5. Except as described in the Prospectus, there are no preemptive rights
to subscribe for or to purchase, nor any restriction upon the voting or transfer
of, the Shares pursuant to the Company's Declaration of Trust or by-laws or any
agreement or other instrument known to such counsel.
6. Such counsel has no knowledge of any legal or governmental proceeding
that is pending or threatened against the Company that has caused us to conclude
that such proceeding is required by Item 103 of Regulation S-K to be described
in the Prospectus but that is not so described. Such counsel has no knowledge of
any contract to which the Company is a party or to which any of its property is
subject that we have concluded is required to be described in the Prospectus but
is not so described or is required to be filed as an exhibit to the Registration
Statement or the filings incorporated by reference therein but has not been so
filed.
7. The Registration Statement and the Prospectus, including the documents
incorporated by reference in the Prospectus, (in each case, not including the
financial statements and data and related schedules included therein or omitted
therefrom, 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.
8. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
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9. The statements contained in the Prospectus under the captions
"Description of Debt Securities," "Description of Shares of Beneficial
Interest," "Description of Securities Warrants," " Certain Provisions of
Maryland Law and of the CenterPoint Properties Trust Declaration of Trust and
Bylaws" and "Federal Income Tax Considerations Relating to our REIT Status," in
each case insofar as they constitute summaries of laws, documents or
proceedings, are correct in all material respects.
10. Except as disclosed in the Registration Statement and the exhibits
contained or incorporated by reference therein, to 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.
11. Neither the Company nor CPFT is an "investment company" within the
meaning of such term under the United States Investment Company Act of 1940 and
the rules and regulations of the Commission thereunder.
12. The execution, delivery and performance by the Company of the
Underwriting Agreement and the issue and sale of the Shares being sold pursuant
to the Underwriting Agreement and the compliance by the Company with all of the
provisions of the Underwriting Agreement and the consummation of the
transactions contemplated thereby have been duly authorized by all necessary
trust 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 filed as an exhibit to the Company's Annual Report on
Form 10-K for the year ended December 31, 1999, 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 CPFT or any statute (except that such counsel need express no
opinion in this paragraph as to compliance with any disclosure requirement or
any prohibition against fraud or misrepresentation or as to whether performance
of the indemnification or contribution provisions in the Underwriting Agreement
would be permitted) or any order, rule or regulation known to us 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 Shares 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 Shares by the Underwriter, 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 the Underwriting Agreement by the Company and the
consummation of the transactions contemplated thereby.
13. The Company is organized in conformity with the requirements for
qualification as a REIT under the Code.
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<PAGE>
14. 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 an officer's certificated dated the date hereof, the
Registration Statement and the Prospectus, the Company will continue to so
qualify.
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