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EXHIBIT 18
CATELLUS DEVELOPMENT CORPORATION
COMMON STOCK
($.01 PAR VALUE)
CUSTODY AGREEMENT
First Chicago Trust Company of
New York
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Catellus Development Corporation, a Delaware corporation (the "Company")
has filed a Registration Statement on Form S-3 with the Securities and Exchange
Commission (File No. 333- 39131) to register for sale to the public under the
Securities Act of 1933, as amended (the "Offering"), up to 18,975,000 shares of
the Company's common stock, $0.01 par value (the "Common Stock"). The shares
covered by the Registration Statement consist of (a) 16,500,000 shares (the
"Firm Shares") to be sold by the California Public Employees' Retirement System
(the "Selling Stockholder") and (b) up to 2,475,000 additional shares of Common
Stock which the underwriters of the Offering have an option to purchase from the
Selling Stockholder to cover over-allotments, if any (the "Additional Shares,"
and collectively with the Firm Shares, the "Shares").
There are delivered to you as Custodian herewith a certificate or
certificates representing 18,975,000 issued and outstanding Shares. Each
certificate so delivered is in negotiable and proper deliverable form with the
signature of a duly authorized representative of the Selling Stockholder
endorsed thereon; provided, that each certificate may instead be accompanied by
a duly executed stock power or powers bearing the signature of a duly authorized
representative of the Selling Stockholder. These certificates are to be held by
you as Custodian for the account of the Selling Stockholder and are to be
disposed of by you in accordance with this Custody Agreement. All capitalized
terms not otherwise defined herein shall have the meanings assigned to such
terms in the Underwriting Agreement to be entered into by and among the Company,
the Selling Stockholder and the underwriters named therein (the "Underwriting
Agreement").
You are authorized and directed to hold the certificates representing
the Firm Shares deposited with you hereunder in your custody, and on the Closing
Date as specified in Section 5 of the Underwriting Agreement, you shall:
(i) take all necessary action to cause the Firm Shares to be
sold and transferred on the books of the Company into such names as the
Representatives, on behalf of the several Underwriters, shall have
instructed you and to cause to be issued, against surrender of the
certificates representing such Firm Shares, new certificates for the
Firm Shares registered in such names and in such denominations as the
Representatives shall have instructed you;
(ii) deliver such new certificates to the Representatives, for
the accounts of the several Underwriters, against payment for such Firm
Shares in such amounts as determined
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in accordance with Section 3 of the Underwriting Agreement, and give
receipt for such payment; and
(iii) on the Closing Date promptly upon receipt, remit to the
Selling Stockholder by wire transfer of immediately available funds the
amount received by you as payment for the Firm Shares, after deducting
any reasonable expenses incurred by you in the performance of your
duties as Custodian hereunder, which expenses shall not exceed $500.
You are authorized and directed to hold the certificates representing
the Additional Shares deposited with you hereunder in your custody, and, if the
U.S. Underwriters elect to exercise the over-allotment option granted to them
under the Underwriting Agreement, on the Option Closing Date as specified in
Section 5 of the Underwriting Agreement, you shall:
(i) take all necessary action to cause the Additional Shares to
be sold and transferred on the books of the Company into such names as
the Representatives, on behalf of the several Underwriters, shall have
instructed you and to cause to be issued, against surrender of the
certificates representing such Additional Shares, new certificates for
the Additional Shares registered in such names and in such denominations
as the Representatives shall have instructed you;
(ii) deliver such new certificates to the Representatives, for
the accounts of the several Underwriters, against payment for such
Additional Shares in such amounts as determined in accordance with
Section 3 of the Underwriting Agreement, and give receipt for such
payment; and
(iii) on the Option Closing Date promptly upon receipt, remit to
the Selling Stockholder by wire transfer of immediately available funds
the amount received by you as payment for the Additional Shares.
If the Underwriting Agreement shall not be entered into, or if the sale
of Shares by the Selling Stockholder as contemplated by the Underwriting
Agreement is not completed prior to December 31, 1997 or if the Underwriting
Agreement shall be terminated pursuant to the provisions thereof, on or after
that date you are to return to the Selling Stockholder the certificates
deposited with you, together with any stock powers which were delivered with the
deposited certificates. In addition, if the Firm Shares are sold to the
Underwriters pursuant to the Underwriting Agreement and the Underwriters do not
elect to exercise fully their over-allotment option with respect to the
Additional Shares by December 25, 1997, after that date you are to return to the
Selling Stockholder that portion of the certificate or certificates deposited
with you representing that number of Shares by which 2,475,000 exceeds the
number of Additional Shares the U.S. Underwriters elected to purchase, if any,
together with any stock powers which were delivered with such deposited
certificate or certificates.
The certificates deposited with you hereunder and this Custody Agreement
and your authority are subject to the interests of the Company and the
Underwriters, and this Custody Agreement and your authority hereunder are
irrevocable and shall not be subject to termination by the Selling Stockholder
or by operation of law, whether by dissolution, winding up, distribution of
assets or other event affecting the legal existence of the Selling Stockholder.
If any of the foregoing events should occur before the delivery of the Shares to
the Underwriters to be sold by the Selling Stockholder under the Underwriting
Agreement, certificates for those Shares shall be delivered by you on behalf
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of the Selling Stockholder in accordance with the terms and conditions of the
Underwriting Agreement and this Custody Agreement, and action taken by you
pursuant to this Custody Agreement shall be as valid as if any of the foregoing
events had not occurred, regardless of whether or not you shall have received
notice of any such events.
Until payment of the purchase price for the Shares to be sold by the
Selling Stockholder to the Underwriters has been made to you by or for the
account of the Underwriters, the Selling Stockholder shall remain the owner of
the Shares represented by the certificates deposited and shall be entitled to
all rights of a stockholder with respect thereto, including, without limitation,
the right to vote such Shares and to receive all dividends and distributions
thereon, subject only to limitations provided for herein.
You shall be entitled to act and rely upon any statement, request,
notice or instructions respecting this Custody Agreement given to you by or on
behalf of the Selling Stockholder; provided, however, that you shall not be
entitled to act or refrain from acting on any statement or notice to you with
respect to the Closing Date or the Option Closing Date under the Underwriting
Agreement, or with respect to the non-effectiveness or termination of the
Underwriting Agreement, or advising that the Underwriting Agreement has not been
executed and delivered or advising that the Firm Shares or Additional Shares to
be sold have not been purchased and paid for by the Underwriters in accordance
with the terms of the Underwriting Agreement, unless such statement or notice
shall have been confirmed in writing to you by the Underwriters.
In taking any action requested or directed by the Underwriters under the
terms of this Custody Agreement, you will be entitled to rely upon a writing
duly executed by or on behalf of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated or ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. International Limited.
It is understood that you assume no responsibility or liability to any
person other than to deal with the certificates deposited with you hereunder and
the proceeds from the sale of the Shares represented thereby in accordance with
the provisions of this Custody Agreement, and the Selling Stockholder agrees to
indemnify and to hold harmless you, your employees, your partners and each
person, if any, who controls any of the foregoing persons within the meaning of
Section 15 of the Securities Act of 1933, as amended, or any of them from and
against any and all loss, damage or liability which they, or any of them,
sustain as a result of anything done by you or any of them in good faith in
connection with the foregoing instructions.
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If any provision or provisions of this Agreement shall be held to be invalid,
illegal or unenforceable for any reason whatsoever, (i) the validity, legality
and enforceability of the remaining provisions of this Agreement (including
without limitation, all portions of any paragraph of this Agreement containing
any such provision held to be invalid, illegal or unenforceable that are not
themselves invalid, illegal or unenforceable) shall not in any way be affected
or impaired thereby, and (ii) to the fullest extent possible, the provisions of
this Agreement (including, without limitation, all portions of any paragraph of
this Agreement containing any such provision held to be invalid, illegal or
unenforceable that are not themselves invalid, illegal or unenforceable) shall
be construed so as to give effect to the intent manifested by the provision held
invalid, illegal or unenforceable.
This Custody Agreement shall be governed by, and construed in accordance
with, the laws of the State of California.
IN WITNESS WHEREOF, the Selling Stockholder has caused this Custody
Agreement to be executed this 25th day of November, 1997.
CALIFORNIA PUBLIC EMPLOYEES'
RETIREMENT SYSTEM
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇
Senior Investment Officer
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CUSTODIAN'S ACKNOWLEDGMENT AND RECEIPT
First Chicago Trust Company of New York, as Custodian, hereby
acknowledges acceptance of the duties of the Custodian under the foregoing
Custodian Agreement and receipt of the certificates referred to therein.
Dated: November 25, 1997
FIRST CHICAGO TRUST COMPANY
OF NEW YORK, as Custodian
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: A.V.P.
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