EXHIBIT 10.4
CALCULATION AND EXCHANGE RATE AGENT
AGREEMENT
BETWEEN
CENTERPOINT PROPERTIES
TRUST
AND
SUNTRUST BANK
Dated as of July 12, 2004
CenterPoint Properties Trust, a
Maryland real estate investment trust (the “Company”),
proposes to issue and sell Medium-Term Notes (the
“Notes”) from time to time under, and pursuant to, the
terms of an Indenture, dated as of March 12, 2004, between the
Company and SunTrust Bank, as trustee (the “Trustee”),
as supplemented by the First Supplemental Indenture dated as of
July 7, 2004 (as so supplemented, the “Indenture”).
Capitalized terms used herein not otherwise defined shall have the
meanings assigned to them in the Notes or the Indenture, as the
case may be.
For the purpose of providing for an
agent of the Company to calculate the base rates applicable to
those Notes on which interest is to accrue at a variable or
floating rate (“Floating Rate Notes”), determined by
reference to LIBOR, the Commercial Paper Rate, the Treasury Rate,
the CD Rate, the CMT Rate, the Federal Funds Rate or the Prime Rate
(collectively, the “Base Rates”) as are specified and
described in the Floating Rate Notes, a form of which is attached
hereto as Exhibit A, and to calculate exchange rates with respect
to Notes (“Non-Dollar Notes”) denominated in any
foreign or composite currency (“Specified Currency”)
for the purpose of converting Specified Currency into U.S. dollars
and for other purposes, the Company and SunTrust Bank hereby agree
as follows:
SECTION 1. Appointment of
Calculation and Exchange Rate Agent . The Company hereby
appoints SunTrust Bank as Calculation and Exchange Rate Agent (the
“Calculation and Exchange Rate Agent”) of the Company
with respect to any Floating Rate Notes and Non-Dollar Notes to be
issued by the Company under and pursuant to the terms of the
Indenture, and the Calculation and Exchange Rate Agent hereby
accepts its obligations as set forth in the Agreement upon the
terms and conditions set forth herein.
SECTION 2. Notice of
Issuance of Floating Rate Notes or Non-Dollar Notes . The
Company shall notify the Calculation and Exchange Rate Agent of the
issuance of any Floating Rate Notes or Non-Dollar Notes prior to
the issuance thereof and deliver to the Calculation and Exchange
Rate Agent copies of the proposed forms of such Floating Rate Notes
or Non-Dollar Notes. The Company shall not issue any Floating
Rate Notes or Non-Dollar Notes prior to the receipt of confirmation
from the Calculation and Exchange Rate Agent of its acceptance of
the proposed form of such Floating Rate Notes and Non-Dollar
Notes. The Calculation and Exchange Rate Agent hereby
acknowledges its acceptance of the proposed form of Note attached
hereto as Exhibit A.
SECTION 3. (a) Calculation of
Base Rates . As soon as reasonably practical on or
after
1
each interest determination date for
any Floating Rate Note, the Calculation and Exchange Rate Agent
shall determine the applicable interest rate for such Note
(computed without regard to the Spread or Spread Multiplier, if
any, applicable to such Note) (the “Interest Rate
Base”) and notify the Company and the Trustee of such
Interest Rate Base. Upon the request of the Holder of any Floating
Rate Note, the Calculation and Exchange Rate Agent shall provide
the Interest Rate Base then in effect with respect to such Note
and, if determined, the Interest Rate Base that will become
effective on the next Interest Reset Date with respect to such
Note. All Interest Rate Base determinations made by the Calculation
and Exchange Rate Agent with respect to the Floating Rate Notes,
shall, in the absence of manifest error, be conclusive for all
purposes and binding upon the Company. Upon the issuance and sale
of any Floating Rate Note, the Company shall promptly cause the
Calculation and Exchange Rate Agent to receive a copy of the
pricing supplement with respect to such Note.
(b) Determination of Exchange
Rates Upon Issuance of Notes . Upon any issuance of
Non-Dollar Notes from time to time, the Calculation and Exchange
Rate Agent shall determine the U.S. dollar equivalent of the
aggregate public offering price or purchase price of such Notes on
the basis of the noon buying rate for cable transfers payable in
the applicable Foreign Currencies in the City of New York on the
applicable issue date, as certified for customs purposes by the
Federal Reserve Bank of New York (the “Market Exchange
Rate”).
(c)
Exchange of Currencies . With respect to any payments
to be made in respect of a Non-Dollar Note, the Calculation and
Exchange Rate Agent will determine the amount of any U.S. dollar
payment in respect of such Note by selecting at approximately 11:00
a.m., New York City time, on the second Business Day preceding the
applicable Payment Date, the indicative quotations for the
Specified Currency appearing at such time on the bank composite or
multi-contributor pages of the Quoting Source (as defined below)
for the first three banks, in descending order of their appearance,
on a list of banks to be agreed to by the Company and the
Calculation and Exchange Rate Agent (any of which may include an
Agent or the Calculation and Exchange Rate Agent) prior to such
second Business Day, which are offering quotes on the Quoting
Source. The Calculation and Exchange Rate Agent shall select from
among the selected quotations the one which will yield the largest
number of U.S. dollars upon conversion from such Specified
Currency. The “Quoting Source” shall mean Reuters
Monitor Foreign Exchange Service, or if the Calculation and
Exchange Rate Agent determines that such service is not available,
Telerate Monitor Foreign Exchange Service. If the Calculation and
Exchange Rate Agent determines that neither service is available,
the Company and the Calculation and Exchange Rate Agent shall agree
on a comparable display or other comparable manner of obtaining
quotations and such display or manner shall become the Quoting
Source.
(d)
Determination Upon Unavailability or Non-Use of Specified
Currency . If (i) fewer than three bid quotations are
available at the time a determination is to be made by the
Calculation and Exchange Rate Agent pursuant to subsection 2(c), or
(ii) the Calculation and Exchange Rate Agent received no later than
12:00 noon, New York City time, on such second Business Day
preceding the applicable Payment Date notice from the Company that
there exist exchange controls or other circumstances beyond the
Company’s control rendering such Specified Currency
unavailable, then the Calculation and Exchange Rate Agent shall,
prior to such Payment Date, notify the Company and the Trustee of
the noon buying rate in New York City for cable transfers, in the
Specified Currency indicated in such notice, as certified for
customers’ purposes by the Federal Reserve Bank of New York
(the “Market Exchange Rate”) as of such
second
2
Business Day. If the Market Exchange
Rate for such date is not then available, the Calculation and
Exchange Rate Agent shall immediately notify the Company and the
Trustee of the most recently available Market Exchange Rate for
such Specified Currency.
(e)
Upon determining any exchange rate as provided in this Section, the
Calculation and Exchange Rate Agent shall as soon as practicable
notify the applicable Trustee or Trustees, the paying agents and
the Company by facsimile, telex or telecopy of such exchange
rate.
SECTION 4. New Base Rates
. If the Company proposes to issue Floating Rate Notes with
an interest rate determined on a basis or formula not referred to
herein (a “New Base Rate”), the Company shall deliver
to the Calculation and Exchange Rate Agent, prior to the issuance
of such Floating Rate Notes, a copy of the proposed form of such
Floating Rate Notes, including a copy of all terms and conditions
relating to the New Base Rate thereunder. The Company shall not
issue any such Floating Rate Notes prior to the receipt of
confirmation from the Calculation and Exchange Rate Agent of its
acceptance of the proposed form of such Floating Rate Notes. The
Calculation and Exchange Rate Agent shall determine if it is able
and willing to calculate the New Base Rate and, upon its agreement
in writing to do so, the term “Base Rate” shall be
deemed to include the New Base Rate. If the Calculation and
Exchange Rate Agent notifies the Company that it is not able or
willing to calculate the New Base Rate, or that it is only willing
to do so on the basis of an increase of its fees not acceptable to
the Company, the Calculation and Exchange Rate Agent shall have no
responsibility with respect to such New Base Rate and the Company
shall appoint a different calculation agent to determine the New
Base Rate.
SEC
