Exhibit 10.2


 


EXECUTION


VERSION


 


CENTERPOINT PROPERTIES TRUST


 


Series D Flexible Cumulative Redeemable Preferred Shares


 


(Five-Year Initial Fixed Rate Period)

(Liquidation Preference $1,000 Per Share)


 


REMARKETING AGREEMENT


 


December 14, 2004


 


LEHMAN BROTHERS INC.

WACHOVIA CAPITAL MARKETS, LLC

c/o Lehman Brothers Inc.

745 7th Avenue 

New York, New York 10019


 


Ladies and Gentlemen:


 


CenterPoint Properties
Trust, a Maryland real estate investment trust (the “Company”), is
issuing today 100,000 Series D Flexible Cumulative Redeemable Preferred
Shares (the “Shares”) (Five-Year Initial Fixed Rate) having a
liquidation preference equivalent to $1,000 per Share.


 


The Articles
Supplementary, dated December 9, 2004, of the Company relating to the
Series D Preferred Shares (the “Series D Articles Supplementary”)
provide for the possible Remarketing (as defined below) of the Shares, on one
or more occasions, at the option of the Company as contemplated in the Series D
Articles Supplementary. As used in this remarketing agreement (the “Agreement”),
the term “Remarketed Securities” means any Shares offered in a
Remarketing; the term “Remarketing Procedures” means the procedures
specified in Section 2 of the Series D Articles Supplementary; and the
term “Remarketing” means a remarketing of the Remarketed Securities
pursuant to the Remarketing Procedures.


 


In connection with any
Remarketing, the Company will, to the extent required under the Securities Act
of 1933, as amended and the rules and regulations promulgated thereunder (the “Securities
Act”), in connection with Remarketings of Remarketed Securities, prepare
and file one or more registration statements under the Securities Act with the
Securities and Exchange Commission (the “Commission”) relating to
Remarketed Securities, and any necessary amendments thereto, and will prepare
one or more prospectuses (which may be preliminary or final) complying with the
requirements of the Securities Act, and any necessary supplements thereto, and
setting forth or including a description of the applicable terms of the
Remarketed Securities, the terms of the applicable Remarketing, a description
of the Company and such other information as may be required by the Securities
Act.


 


Capitalized terms used
and not defined in this Agreement shall have the meanings set forth in the
Series D Articles Supplementary.  Any
reference in this Agreement to any registration statement or to any preliminary
prospectus or final prospectus (or any amendments or supplements to any of the
foregoing) shall be deemed to (i) refer to any such document as it may at
the time be amended or supplemented and (ii) include any document filed
under the Securities Exchange Act of 1934, as amended and the rules and
regulations promulgated thereunder (the “Exchange Act”), to the extent
and at the time incorporated by reference therein.


 


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Section 1.    Appointment and Obligations
of the Remarketing Agents.


 


(a)  The Company hereby appoints
Lehman Brothers Inc. and Wachovia Capital Markets, LLC as joint Remarketing
Agents (the “Remarketing Agents”), and each of Lehman Brothers Inc. and
Wachovia Capital Markets, LLC accepts appointment as Remarketing Agent for the
purpose of (i) remarketing Remarketed Securities on behalf of the holders
thereof and (ii) performing such other duties as are assigned to the
Remarketing Agents in the Remarketing Procedures, all in accordance with and
pursuant to the Remarketing Procedures.


 


(b)  Each of the Remarketing
Agents agree (i) to use commercially reasonable efforts to remarket the
Remarketed Securities tendered or deemed tendered to the Remarketing Agents in
any Remarketing, (ii) to notify the Company of the new Fixed Rate, if any,
established pursuant to any Remarketing, and (iii) to carry out such other
duties as are assigned to the Remarketing Agents in the Remarketing Procedures,
all in accordance with the provisions of the Remarketing Procedures.


 


(c)  On any date during which a
Remarketing is being conducted, the Remarketing Agents shall use commercially
reasonable efforts to remarket, at a price equal to $1,000 per Share,
Remarketed Securities tendered or deemed tendered for purchase.


 


(d)  If, as a result of the
Remarketing Agents’ efforts described in Section 1(c), the Remarketing
Agents have determined on any date during which a Remarketing is being
conducted that they will be able to remarket all Remarketed Securities tendered
or deemed tendered for purchase at a price of $1,000 per Share (including any
accrued and unpaid distributions or interest, the “Remarketing Purchase
Price”) prior to 4:00 P.M., New York City time, on such date (any such date
of determination, a “Remarketing Date”), the Remarketing Agents shall
determine the Fixed Rate resulting from such Remarketing and to be applicable
to the next succeeding Distribution Period, which shall be the rate per annum
(rounded to the nearest one-thousandth (0.001) of one percent per annum) which
the Remarketing Agents determine, in their judgment, to be the lowest rate per
annum, if any, that will enable them to remarket all Remarketed Securities
tendered or deemed tendered for Remarketing at the Remarketing Purchase Price.


 


(e)  If any holder of Remarketed
Securities submits a Notice of Election to tender some or all of its Shares in a
Remarketing and separately notifies the Remarketing Agents that such holder
desires to continue to hold a number of Shares, but only if the Fixed Rate
determined by the applicable Remarketing is not less than a specified rate per
annum, the Remarketing Agents shall give priority to such holder’s purchase of
such number of Remarketed Securities in the Remarketing, provided that the new
Fixed Rate is not less than such specified rate.


 


(f)  By approximately 4:30 P.M.,
New York City time, on a Remarketing Date, the Remarketing Agents shall advise,
by telephone, (i) the Depository Trust Company (the “DTC”)
participant who will receive a credit for the Shares on DTC’s records (the “Depositary
Participant”), the Company and the Calculation Agent of any new Fixed Rate
established pursuant to the Remarketing and the number of Remarketed Securities
sold in the Remarketing, (ii) each purchaser of Remarketed Securities (or
the Depositary Participant thereof) of such new Fixed Rate and the number of
Remarketed Securities such purchaser is to purchase and (iii) each
purchaser to give instructions to its Depositary Participant to pay the
purchase price on the Remarketing Settlement Date in same day funds against
delivery of the Remarketed Securities purchased through the facilities of the
Depositary Participant.


 


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(g)  If, by 4:00 P.M., New York
City time, on the third business day prior to the Remarketing Settlement Date
applicable to the Remarketing (such third business day, a “Remarketing
Expiration Date”) the Remarketing Agents are unable to remarket all
Remarketed Securities tendered or deemed tendered for purchase at the
Remarketing Price, the Remarketing Agents shall, by approximately 4:30 P.M.,
New York City time, on such date, advise by telephone the Depositary
Participant, the Company and the Calculation Agent that the Distribution Rate
for the Series D Preferred Shares for the next succeeding Distribution Period
will be a Floating Rate determined in accordance with the Series D Articles
Supplementary.


 


Section 2.  Representations,
Warranties and Agreements of the Company. 
The Company represents, warrants and agrees, on and as of the date
hereof, that the representations and warranties made by the Company in the underwriting
agreement dated December 9, 2004 among the Company and Lehman Brothers
Inc., Wachovia Capital Markets, LLC and the other underwriters named therein
(the “Underwriting Agreement”), relating to the Series D Preferred
Shares, are true, correct and complete in all material respects, as if made on
the date hereof.  In addition, the
Company represents, warrants and agrees, (i) on and as of the date of
filing and of effectiveness of any registration statement filed pursuant to
this Agreement and on and as of the date of any amendment to any such
registration statement, (ii) on and as of the date of any preliminary
prospectus and on and as of the date of any supplement thereto distributed in
connection with a Remarketing, (iii) on and as of the date of any final
prospectus and on and as of the date of any supplement thereto distributed in
connection with a Remarketing, (iv) on and as of any Election Date,
(v) on and as of any Remarketing Date, and (vi) on and as of any
Remarketing Settlement Date, (to the extent applicable) that:


 


(a)  The registration statements
under the Securities Act, including amendments thereto (File
Nos. 333-113572 and 333-42748) (collectively, the “Initial Registration
Statement”), relating to certain securities (the “Shelf Securities”)
to be issued from time to time by the Company, including the Series D Preferred
Shares, was prepared by the Company and filed with the Commission in conformity
in all material respects with all applicable requirements of the Securities
Act.  The Initial Registration Statement
has been declared effective by the Commission under the Securities Act. Any
registration statement (other than the Initial Registration Statement) and any
amendments thereto required under the Securities Act with respect to the applicable
Remarketing and required to have been filed with the Commission have or will
have (i) been prepared by the Company in conformity in all material
respects with the requirements of the Securities Act, (ii) been filed as
required with the Commission under the Securities Act and (iii) become
effective under the Securities Act. Copies of such registration statement(s)
and any amendments thereto have been or will be delivered by the Company to the
Remarketing Agents.


 


(b)  The prospectus supplement
dated December 9, 2004 and the accompanying prospectus, dated May 27,
2004, relating to the initial offering of the Shares (collectively, the “Initial
Prospectus”), were prepared by the Company and filed with the Commission in
conformity with the requirements of the Securities Act.  Any preliminary prospectus and any final
prospectus (other than the Initial Prospectus), and any supplements to any of
the foregoing, required to have been prepared in connection with the applicable
Remarketing have been or will be prepared and filed with the Commission in
conformity in all material respects with the requirements of the Securities
Act.


 


(c)  Neither the Commission nor
any state securities authority of any jurisdiction has issued, instigated a
proceeding for or, to the knowledge of the Company, threatened, an order
preventing or suspending the use of any registration statement, any preliminary
prospectus or any 


 


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final
prospectus, or any amendment or supplement thereto, relating to the applicable
Remarketing.


 


(d)  Any registration statement
(and any amendments thereto) relating to a Remarketing, at the time it became
effective, and any preliminary prospectus, and any final prospectus (and any
supplements to either of the foregoing) relating to the applicable Remarketing,
as of their respective dates and as of the dates they were filed with the
Commission, did not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein not misleading,
except that the representations and warranties set forth in this Section 2(d)
do not apply to information contained in any preliminary prospectus or any
final prospectus (or any supplements to either of the foregoing) based upon
information furnished to the Company in writing by or on behalf of the
Remarketing Agents expressly for use therein.


 


(e)  The documents incorporated
or deemed to be incorporated by reference in the prospectus pursuant to Item 12
of Form S-3 under the Securities Act, at the time they were, or hereafter
are, filed with the Commission, complied and will comply in all material
respects with the requirements of the Exchange Act, and, when read together
with other information included in, and incorporated by reference in, an
applicable prospectus, at the time an applicable registration statement became
effective, as of the date of the prospectus and as of the date hereof (if
applicable), or during the period specified in Section 4(f) did not and
will not include an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.  The foregoing representations and warranties
in this Section 2(e) do not apply to any statements or omissions made in
reliance on and in conformity with information relating to the Remarketing
Agents furnished in writing to the Company by the Remarketing Agents
specifically for inclusion in any applicable registration statement or
applicable prospectus or any amendment or supplement thereto.


 


(f)  Since the respective dates
as of which information is given in a registration statement and final
prospectus relating to a Remarketing (or any amendment or supplement thereto)
and except as disclosed therein, (i) there has not been and will not have
been, except as set forth in or contemplated by any applicable registration
statement and any applicable prospectus, any change in the capitalization,
long-term or short-term debt or in the shares of beneficial interest or equity
of the Company or any of the Subsidiaries (as hereinafter defined) which would
be material to the Company and the Subsidiaries considered as one enterprise
(anything which would be material to the Company and the Subsidiaries,
considered as one enterprise, being hereinafter referred to as “Material”),
(ii) neither the Company nor any of the Subsidiaries has incurred nor will
any of them incur any liabilities or obligations, direct or contingent, which
would be Material, nor has any of them entered into nor will any of them enter
into any transactions, other than pursuant to this Agreement and the
transactions referred to herein or as contemplated in any applicable
prospectus, which would be Material, (iii) there has not been any material
adverse change in the condition (financial or otherwise), earnings, assets or
business affairs or prospects of the Company and the Subsidiaries taken as a
whole or their properties (a “Material Adverse Effect”), (iv) except for
regular quarterly distributions on the Company’s common shares of beneficial
interest, par value $0.001 per share (the “Common Shares”), and the
dividends on the shares of the Company’s 7.50% Series B Convertible Cumulative
Redeemable Preferred Shares of Beneficial Interest (the “Series B
Preferred Shares”), and dividends required to be paid on any class of
preferred shares of beneficial interest issued on or after the date hereof, the
Company has not paid or declared and will not pay or declare any dividends or
other distributions of any kind on any class of its capital stock.


 


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(g)  The Company is a real estate
investment trusts duly formed and validly existing under the Maryland REIT Law,
and has due authority to carry on the real estate business in which it is
engaged, to own and operate the properties used by it in such business and to
enter into and perform its obligations under each of this Agreement, the Series
D Articles Supplementary and the calculation agent agreement dated December 14,
2004 pertaining to the Series D Preferred Shares (the “Calculation Agent
Agreement”).  The Company is and will
be on each Remarketing Date, duly qualified to do business and in good standing
as a foreign real estate investment trust in each jurisdiction in which its
ownership or lease of property or the conduct of its business requires such
qualification, and has all real estate investment trust power and authority
necessary to own or hold its properties and to conduct the businesses in which
it is engaged.


 


The Company’s
subsidiaries (the “Corporate Subsidiaries”) have been duly incorporated
and are validly existing as corporations, limited liability companies or
partnerships, as the case may be, in good standing under the laws of their
respective jurisdictions of incorporation or formation, are, and will be on
each Remarketing Date, duly qualified to do business and in good standing as
foreign corporations, limited liability companies or partnerships, as the case may
be, 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 none of the subsidiaries of the Company is a “significant
subsidiary,” as such term is defined in Regulation S-X of the Rules and
Regulations.


 


(h)  This Agreement has been duly
authorized, executed, and delivered by the Company.


 


(i)  The Shares have been duly
authorized by the Company and, when issued and delivered against payment
therefore as provided in the Underwriting Agreement, will be validly issued,
fully paid and non-assessable.  The
Series D Preferred Shares conform in all material respects to all statements
relating thereto contained in any applicable final prospectus (and any
supplement thereto); the Shares are not subject to any preemptive or other
similar right.


 


(j)  The Calculation Agent
Agreement has been duly and validly authorized, executed and delivered by the
Company and, assuming due authorization, execution, and delivery by the
Calculation Agent, constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except to the
extent that enforcement thereof may be limited by the (1) bankruptcy,
insolvency, reorganization, receivership, liquidation, fraudulent conveyance,
moratorium or other similar laws affecting creditors’ rights, generally, or
(2) general principles of equity (regardless of whether enforcement is
considered in a proceeding at law or in equity), and each of  this Agreement and the Calculation Agent
Agreement will conform in all material respects to all statements relating
thereto contained in any applicable prospectus.


 


(k)  The Company is not or, after
giving effect to the applicable Remarketing, will be, an “investment company”
or an entity “controlled” by an “investment company” within the meaning of the
Investment Company Act of 1940, as amended (the “1940 Act”).


 


(l)  The execution, delivery and
performance by the Company of this Agreement and the Calculation Agent
Agreement, and the consummation by the Company of the transactions contemplated
herein and therein and compliance by the Company with its obligations hereunder
and thereunder have been duly authorized by all necessary action on the part of
the Company and do not and will not result in any violation of the declaration
of trust or bylaws of the Company 


 


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and do
not and will not conflict with, or result in a breach 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 property or assets of
the Company under (A) any contract, indenture, mortgage, loan agreement, note,
lease, or other agreement or instrument to which the Company is a party, or by
which the Company may be bound, or to which any of its properties may be
subject (except for conflicts, breaches or defaults which would not, individually
or in the aggregate, be materially adverse to the Company or materially adverse
to the transactions contemplated by this Agreement), or (B) any existing
applicable law, rule, regulation, judgment, order or decree of any government,
governmental instrumentality or court, domestic or foreign, or any regulatory
body or administrative agency or other governmental body having jurisdiction
over the Company or any of its properties. 
The Company has full real estate investment trust power to execute,
deliver and file the Series D Articles Supplementary.


 


(m)  No Material authorization,
approval, consent or order of, or any filing or declaration with, any court or
governmental authority or agency or any other entity is necessary in connection
with the Company entering into this Agreement or in connection with the
applicable Remarketing or the transactions contemplated by this Agreement,
except (A) such as may be required, and have been obtained, under the
Securities Act or the rules and regulations thereunder and (B) such
consents, approvals, authorizations, registrations, or qualifications as may be
required, and have obtained, under state securities or “blue sky” laws.


 


(n)  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 in all material respects 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 in all material respects 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.


 


(o)  (i) As of an applicable
Remarketing Date, the Company and each of its subsidiaries have insurable title
in fee simple to all real property and marketable title to all personal
property owned by them as described in a prospectus, 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, which such exceptions as
are not material and do not interfere with the use made and proposed to be made
of such property and buildings by the Company and its subsidiaries;
(iii) all liens, charges, encumbrances, claims, or restrictions on or
affecting the properties and assets of any of the Company or its subsidiaries
which are required to be disclosed in the prospectus are disclosed therein;
(iv) neither the Company nor any of its subsidiaries is in default under
any of the leases pursuant to which any of the Company or its subsidiaries
leases its properties and neither the Company nor any of its subsidiaries knows
of any event which, but for the passage of time or the giving of notice, or
both, would constitute a default under any of such leases, except for any such
defaults which would not, individually or in the aggregate, reasonably be
expected to have a material adverse effect on the consolidated financial position,
shareholders’ equity, results of operations, business or prospects of the
Company and its subsidiaries taken as a whole; (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 


 


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refusal
to purchase the premises under such lease, which exercise of such right would,
either individually or in the aggregate, reasonably be expected to have a
material adverse effect on the consolidated financial position, shareholders’
equity, results of operations, business or prospects of the Company and its
subsidiaries taken as a whole; (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, reasonably be expected to have a material
adverse effect on the consolidated financial position, shareholders’ equity,
results of operations, business or prospects of the Company and its
subsidiaries taken as a whole; 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, reasonably be expected to have a material adverse effect on the
consolidated financial position, shareholders’ equity, results of operations,
business or prospects of the Company and its subsidiaries taken as a whole.


 


(p)  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.


 


(q)  The Company and each of its
subsidiaries own or possess adequate rights to use all patents, patent
applications, trademarks, service marks, trade names, trademark registrations,
service mark registrations, copyrights and licenses necessary for the conduct
of their respective businesses, except where the failure to own or possess such
rights would not, individually or in the aggregate, reasonably be expected to
have a material adverse effect on the consolidated financial position,
shareholders’ equity, results of operations, business or prospects of the
Company and its subsidiaries taken as a whole, 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.


 


(r)  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, would reasonably be expected to have a
material adverse effect on the consolidated financial position, shareholders’
equity, results of operations, business or prospects of the Company and its
subsidiaries taken as a whole; and to the best of the Company’s knowledge, no
such proceedings are threatened or contemplated by governmental authorities or
threatened by others.


 


(s)  There are no contracts or
other documents which are required to be described in a prospectus or filed as
exhibits to a registration statement that may be required to be filed in
connection with a Remarketing by the Securities Act or by the rules and
regulations thereunder 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.


 


(t)  No relationship, direct or
indirect, exists between or among the Company on the one hand, and the
directors, officers or shareholders of the Company on the other hand, which is
required to be described in a prospectus which is not so described.


 


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(u)  No labor disturbance by the
employees of the Company exists or, to the knowledge of the Company, is
imminent which might reasonably be expected to have a Material adverse effect
on the consolidated financial position, shareholders’ equity, results of
operations, business or prospects of the Company and its subsidiaries.


 


(v)  The Company is in compliance
in all material respects with all presently applicable provisions of the
Employee Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder (“ERISA”); no “reportable
event” (as defined in ERISA) has occurred with respect to any “pension plan”
(as defined in ERISA) for which the Company would have any liability; the
Company has not incurred and does not expect to incur liability under
(i) Title IV of ERISA with respect to termination of, or withdrawal
from, any “pension plan” or (ii) Sections 412 or 4971 of the Internal
Revenue Code of 1986, as amended, including the regulations and published
interpretations thereunder (the “Code”); and each “pension plan” for
which the Company would have any liability that is intended to be qualified
under Section 401(a) of the Code is so qualified in all material respects
and nothing has occurred, whether by action or by failure to act, which would
cause the loss of such qualification.


 


(w)  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, would reasonably be expected to have) a Material adverse effect
on the consolidated financial condition, shareholders’ equity, results of
operations, business or prospects of the Company and its subsidiaries.


 


(x)  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.


 


(y)  The
Company (i) has established and maintains disclosure controls and
procedures (as such term is defined in Rules 13a-15(e) and 15d-15(e) under
the Exchange Act), and the Company has: (A) designed such controls and
procedures to ensure that material information relating to the Company,
including its consolidated subsidiaries, is made known to the Company’s
principal executive officer and its principal financial officer by others
within those entities particularly during the periods in which the periodic
reports required under the Exchange Act are being prepared, (B) evaluated such
controls and procedures for effectiveness and presented conclusions about the
effectiveness of such controls and procedures in the periodic reports required
under the Exchange Act as of the end of the period covered by such report, and
(C) disclosed in the periodic reports required under the Exchange Act any
change in the Company’s internal control over financial reporting that occurred
during the Company’s most recent fiscal quarter that has materially affected,
or is reasonably likely to materially affect, the Company’s internal control
over financial reporting.  Based on the
evaluation of its disclosure controls and procedures, the Company is not aware
of (A) any significant deficiency or material weakness in the design or
operation of internal control over financial reporting which are reasonably
likely to adversely affect the Company’s ability to record, process, summarize
and report financial information, or (B) any fraud, whether or not
material, that involves management 


 


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or
other employees who have a significant role in the Company’s internal control
over financial reporting.


 


(z)  Neither the Company nor any
of its subsidiaries (i) is in violation of its declaration of trust 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.


 


(aa)  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 real estate investment trust 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.


 


(bb)  There has been no storage,
disposal, generation, manufacture, refinement, transportation, handling or
treatment of any material by the Company or any of its subsidiaries or, to the
Company’s knowledge, any of their predecessors in interest at, upon or from any
of the properties now or previously owned or leased by the Company or its
subsidiaries or any of their predecessors in interest in violation of any
applicable law, ordinance, rule, regulation, order, judgment, decree or permit
or which would require remedial action damages other 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, individually or in the aggregate with all such
violations, remedial actions, damages, modifications or cessations, a material
adverse effect on the consolidated financial position, shareholders’ equity,
results of operations, business or prospects of the Company and its
subsidiaries; and there has been no material spill, discharge, leak, emission,
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,
individually or in the aggregate with all such spills, discharges, leaks,
emission, injections, escapes, dumpings and releases, a material adverse effect
on the consolidated financial position, shareholders’ equity, results of
operations, business or prospects of the Company and its subsidiaries.


 


(cc)    The Company is organized
in conformity with the requirements for qualification as a real estate investment
trust (“REIT”) under the Code, and its present and contemplated method
of operation does and will enable it to meet the requirements for taxation as a
REIT under the Code for the year ended December 31, 1994 and subsequent
taxable years.  The Company intends to
continue to be organized and operate so that the Company shall qualify as a
REIT for the foreseeable future, provided that nothing contained herein shall
preclude the Company’s board of trustees from making a determination that it is
no longer in the best interests of the Company to be so qualified.


 


9





















 


(dd)  The
Company has, in accordance with the declaration of trust of the Company,
exempted the holders of Shares from the ownership limit contained in Article IV
of the declaration of trust, with respect to the ownership of the Shares.


 


Section 3.  Fees and
Expenses.  (a) For the
performance of their services as Remarketing Agents in connection with
Remarketings hereunder, the Company agrees to pay to the Remarketing Agents a
fee on each Remarketing Settlement Date, in an amount customary for the types
of services provided by the Remarketing Agents hereunder and as shall be
mutually agreed upon between the Company and the Remarketing Agents.


 


(b)  The Company agrees to pay
(i) the costs incident to the preparation and filing of any registration
statements and any amendments thereto required in connection with this
Agreement; (ii) the costs incident to the preparation, printing, and distribution
of any prospectus (preliminary or final) and any supplements thereto required
in connection with this Agreement; (iii) the fees and expenses of
qualifying Remarketed Securities under the securities laws of the several
jurisdictions as provided in Section 4(g) and of preparing, printing, and
distributing a blue sky survey (including related fees and expenses of counsel
to the Remarketing Agents); (iv) all other costs and expenses incident to
the performance of the obligations of the Company hereunder; and (v) the
fees and expenses of counsel and accountants for the Company.


 


Section 4.  Further Agreements of the Company.  The Company agrees:


 


(a)  To prepare any registration
statement, preliminary prospectus or final prospectus, and any amendments and
supplements thereto required in connection with any Remarketing, in a form
reasonably acceptable to the Remarketing Agents and to file any such documents
with the Commission pursuant to the Securities Act as required by the
Securities Act.


 


(b)  To advise the Remarketing
Agents, promptly after it receives notice thereof, of the time when any
registration statement or any amendment thereto has been filed with the
Commission or becomes effective, and when any prospectus (preliminary or final)
or any supplement thereto has been filed, in each such case excluding documents
incorporated by reference therein; during the term of this Agreement, 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; to advise the Remarketing Agents,
promptly after it receives notice thereof, of the issuance by the Commission of
any stop order with respect to any registration statement or amendment thereof
filed in connection with this Agreement, or of any order preventing or
suspending the use of any prospectus (preliminary or final) or any supplement
thereto filed or prepared in connection with this Agreement, of the suspension
of the qualification of any Remarketed Securities 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 any such registration statement or prospectus or amendment or supplement
thereto or for additional information; and, in the event of the issuance of any
stop order with respect to any registration statement or any amendment thereto
or of any order preventing or suspending the use of any prospectus or
supplement thereto or suspending any such qualification, to use promptly its
best efforts to obtain its withdrawal.


 


(c)  To furnish to the
Remarketing Agents (i) conformed copies of any registration statement
prepared in connection with this Agreement as originally filed with the
Commission and each amendment thereto (in each case excluding exhibits), any
preliminary or final prospectus prepared in connection with this Agreement and
any supplements thereto; copies of 


 


10





















 


the
Series D Articles Supplementary and the Calculation Agent Agreement, and any
amendment to any thereof, and each report or other document mailed or made
available to holders of Remarketed Securities; (ii) if the delivery of a
prospectus is required at any time in connection with a Remarketing and if at
such time any event has occurred as a result of which the prospectus as then
supplemented would include any 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 in the opinion of
counsel to the Company or the Remarketing Agents it shall be necessary during
such same period to amend or supplement the applicable registration statement
or prospectus or to file under the Exchange Act any document incorporated by
reference in the prospectus in order to comply with the Securities Act or the
Exchange Act, to notify the Remarketing Agents and to file such document and to
prepare and furnish without charge to the Remarketing Agents and to any dealer
in Shares as many copies as the Remarketing Agents may from time to time
reasonably request of an amended or supplemented prospectus which will correct
such statement or omission or effect such compliance; and (iii) such other
information as the Remarketing Agents may reasonably request from time to time,
in such form as the Remarketing Agents may reasonably request.


 


(d)  To furnish to the
Remarketing Agents, without charge, as many copies of any registration
statement, preliminary prospectus or final prospectus prepared in connection
with this Agreement, and any amendments and supplements thereto as the
Remarketing Agents may reasonably request.


 


(e)  Prior to making any
amendment to any registration statement or supplement to any preliminary or
final prospectus filed or prepared in connection with this Agreement, to
furnish a copy thereof to the Remarketing Agents and counsel to the Remarketing
Agents, and not effect any such amendment or supplement thereto to which the
Remarketing Agents shall reasonably object by notice to the Company after a
reasonable period to review.


 


(f)  If, at any time on or after
the commencement of a Remarketing and prior to the related Remarketing
Settlement Date, any event shall occur or condition exist as a result of which
it is necessary, in the opinion of counsel for the Remarketing Agents or
counsel for the Company, to amend or supplement any preliminary or final
prospectus in order that such preliminary or final prospectus will not include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in light of
the circumstances existing at the time it is delivered in connection with the
Remarketing, or if it is necessary to amend any registration statement or
supplement any preliminary or final prospectus to comply with applicable law,
to promptly prepare such amendment or supplement as may be necessary to correct
such untrue statement or omission or so that such document, as so amended or
supplemented, will comply with applicable law and to furnish you such number of
copies as the Remarketing Agents may reasonably request.


 


(g)  Promptly from time to time
to take such action as the Remarketing Agents may reasonably request to qualify
the Remarketed Securities for offering and sale under the securities or “blue
sky” laws of such jurisdictions as the Remarketing Agents 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 Remarketed Securities; provided, that in connection
therewith, the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction in which it is not so qualified or to submit to any requirements
which it deems unduly burdensome.


 


11





















 


(h)  As soon as practicable after
the effective date of any registration statement filed in connection with this
agreement, to make generally available to the Company’s security holders 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).


 


(i)  During the period when a
prospectus is required to be delivered under the Securities Act or the Exchange
Act in connection with sale of Remarketed Securities, to file all documents
required to be filed by it with the Commission pursuant to Section 13, 14
or 15 of the Exchange Act within the time periods required by the Exchange Act.


 


(j)  The Company will use its
best efforts to continue to qualify as a REIT under Sections 856 through 860 of
the Code unless the Company’s board of trustees determines that it is no longer
in the best interests of the Company to be so qualified.


 


(k)  The Company will use its
reasonable best efforts to take all reasonable action necessary to enable
S&P and Moody’s or any other nationally recognized rating organization to
provide their respective credit ratings with respect to the Shares.


 


Section 5.  Conditions to
the Remarketing Agents’ Obligations. 
The obligations of the Remarketing Agents hereunder are subject to the
accuracy, on and as of the date when made, 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 Remarketing Agents shall
not have discovered and disclosed to the Company on or prior to the Remarketing
Date, or during the period between the Remarketing Date and the Remarketing
Settlement Date, that any applicable registration statement, preliminary
prospectus or final prospectus or any amendment or supplement thereto contains
any untrue statement of a fact which, in the opinion of Chapman and Cutler LLP,
or such other counsel for the Remarketing Agents, is material or omits to state
any 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.


 


(b)  All proceedings and other
legal matters incident to the authorization, form and validity of this
Agreement, the Series D Articles Supplementary, the Shares, the Calculation
Agent Agreement, any applicable registration statement, preliminary prospectus
and/or final prospectus and any amendments or supplements thereto 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
Remarketing Agents, 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.


 


(c)  On any Remarketing
Settlement Date, Kirkland & Ellis LLP, or such other counsel satisfactory
to the Remarketing Agents, shall have furnished to the Remarketing Agents their
written opinion, as counsel to the Company, addressed to the Remarketing Agents
and dated such date, in form and substance to the effect set forth in Exhibit
A hereto, and to the extent not to such effect, in form and substance
reasonably acceptable to the Remarketing Agents.


 


(d)  On any Remarketing
Settlement Date, Ballard Spahr Andrews & Ingersoll, LLP, or such other
counsel satisfactory to the Remarketing Agents, shall have furnished to the Remarketing
Agents their written opinion, on certain matters of Maryland law relating to
the 


 


12





















 


validity
of the Shares, addressed to the Remarketing Agents and dated such date, in form
and substance reasonably satisfactory to the Remarketing Agents, to the effect
set forth in Exhibit B hereto and to such further effect as counsel
to the Remarketing Agents may reasonably request.


 


(e)  On any Remarketing
Settlement Date, Chapman and Cutler LLP, or such other counsel satisfactory to
the Remarketing Agents, shall have furnished to the Remarketing Agents their
written opinion, addressed to the Remarketing Agents and dated such date, in
form and substance reasonably satisfactory to the Remarketing Agents, to the
effect set forth in Exhibit C hereto. 
Such counsel may rely, to the extent appropriate, on the opinion of
counsel rendered in connection with Section 5(d) above.


 


(f)  On any Remarketing
Settlement Date, PricewaterhouseCoopers, LLP, or such other firm of independent
public accountants performing services for the Company, shall have furnished to
the Remarketing Agents a “comfort letter” of such accountants, addressed to the
Remarketing Agents and dated such date, in form and substance reasonably
satisfactory to the Remarketing Agents.


 


(g)  At the commencement date
with respect to marketing efforts to investors in connection with any
Remarketing (a “Commencement Date”) and on the related Remarketing Date
and Remarketing Settlement Date, there shall not have been, since the
respective dates as of which information is given in any applicable
registration statement or preliminary or final prospectus (or any amendment or
supplement thereto), any material adverse change in the condition, financial or
otherwise, or in the earnings or business affairs of the Company and the
Company’s Subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business, and the Remarketing Agents shall have received
certificates of a Vice President of the Company and of the chief financial or
chief accounting officer of the Company on behalf of the Company, and dated as
of each such date, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Section 2 hereof
are true and correct with the same force and effect as though expressly made at
and as of the Remarketing Settlement Date and (iii) the Company has
complied in all material respects with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to such date.


 


(h)  Subsequent to the execution
and delivery of this Agreement and prior to any Remarketing Settlement Date,
there shall not have occurred any downgrading, nor shall any notice have been
given of (i) any intended or potential downgrading or (ii) any review or
possible change that does not indicate an improvement in the rating accorded to
the Shares by any “nationally recognized statistical rating organization,” as
such term is defined for purposes of Rule 436(g)(2) under the Securities Act.


 


(i)  On any Remarketing
Settlement Date, the Shares shall have the same ratings accorded by any “nationally
recognized statistical organization,” as defined by the Commission for purposes
of Rule 436(g)(2) under the Securities Act, as when they were first issued, and
the Company shall have delivered to the Remarketing Agents a letter, dated as
of such date, from each such rating organization, or other evidence satisfactory
the Remarketing Agents, confirming that the Shares have such ratings.  Since the date hereof, there shall not have
occurred a downgrading in the rating assigned to the Shares or any of the
Company’s other securities by any such rating organization, and no such rating
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of the Shares or any of
the Company’s other securities.


 


13





















 


(j)  Without the prior written
consent of the Remarketing Agents, the Series D Articles Supplementary shall
not have been amended in any manner, or otherwise contain any provision not
contained therein as of the date hereof that, in the opinion of the Remarketing
Agents, materially changes the nature of the Remarketed Securities or the
Remarketing Procedures.


 


(k)  Subsequent to the
Commencement Date of any Remarketing, there shall not have occurred any of the
following:  (i) trading of any securities
of or guaranteed by the Company shall have been suspended on any exchange or in
any over-the-counter market, (ii) trading in securities on the New York
Stock Exchange, the American Stock Exchange, the National Association of
Securities Dealers, Inc., the Chicago Board Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade shall have been generally
suspended, or there shall have been a material disruption in settlement of
securities generally, (iii) minimum or maximum ranges for prices shall
have been generally established on the New York Stock Exchange by the
Commission or by the New York Stock Exchange, (iv) a general banking
moratorium shall have been declared by federal or New York State authorities,
(v) any major disruption of settlements of securities or clearance services in
the United States; or (vi) there shall have occurred any outbreak or
escalation of major hostilities in which the United States is involved, any
declaration of war by the United States Congress or any other substantial
national or international calamity, crisis or emergency (including without
limitation, acts of terrorism) affecting the United States, in any such case
provided for in clauses (i) through (vi) with the result that, in the
reasonable judgment of the Remarketing Agents, the marketability of the
Remarketed Securities shall have been materially impaired.


 


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 Remarketing
Agents.


 


Section 6.  Indemnification
and Contribution.  (a) The Company
shall indemnify and hold harmless each Remarketing Agent and each person, if
any, who controls any Remarketing Agent 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 sales of Remarketed Securities), to
which that Remarketing Agent 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 applicable
preliminary prospectus, registration statement or 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
Remarketing Agent and each such controlling person promptly upon demand for any
legal or other expenses reasonably incurred by that Remarketing Agent 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 applicable preliminary prospectus,
registration statement or 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 Remarketing Agent specifically for inclusion
therein.  The foregoing indemnity
agreement is in addition to any liability which the Company may otherwise have
to any Remarketing Agent or to any controlling person of that Remarketing
Agent.


 


14





















 


(b) 
Each Remarketing Agent, 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 any applicable registration statement as
about to become a director of the Company), each of its officers who signed any
applicable 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 applicable preliminary prospectus, registration statement or
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
Remarketing Agent 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
Remarketing Agent 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 6
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 6, 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 6 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 6.  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 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 6 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 Remarketing Agents shall have the right to employ
counsel to represent jointly the Remarketing Agents and controlling persons who
may be subject to liability arising out of any claim in respect of which
indemnity may be sought by the Remarketing Agents against the Company under
this Section 6 if the Remarketing Agents 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 Remarketing Agents 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 


 


15





















 


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 6 shall for any
reason be unavailable to an indemnified party under Section 6(a) or 6(b)
hereof 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, in such proportion as is appropriate
to reflect the relative fault of the Company on the one hand and the
Remarketing Agents on the other with respect to the statements or omissions or
alleged 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
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 Remarketing Agents,
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 Remarketing Agents agree
that it would not be just and equitable if contributions pursuant to this Section 6(d)
were to be determined by pro rata allocation or by any other method of
allocation which does not take into account the equitable considerations
referred to herein.  Notwithstanding the
provisions of this Section 6(d), the Remarketing Agents shall not be
required to contribute any amount in excess of the amount by which the total
price at which the shares remarketed through the Remarketing Agents were
offered to the public exceeds the amount of any damages which the Remarketing
Agents 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 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.


 


Section 7.  Resignation
and Removal of Remarketing Agents. 
Either of the Remarketing Agents may resign and be discharged from its duties
and obligations hereunder, and the Company may remove either of the Remarketing
Agent, by giving 30 days’ prior written notice, in the case of a resignation,
to the Company and the Depositary Participant, and, in the case of a removal,
such removed Remarketing Agent and the Depositary Participant; provided,
however, that (i) the Company may not remove a Remarketing Agent
unless (A) such Remarketing Agent becomes involved as debtor in a bankruptcy,
insolvency or similar proceeding, (B) such Remarketing Agent shall not be among
the five underwriters with the largest volume underwritten in dollars, on a
lead or co-managed basis, of U.S. domestic preferred securities during the
twelve-month period ended as of the last calendar quarter preceding the Scheduled
Remarketing Date, (C) such Remarketing Agent shall be subject to any
restriction preventing the performance of its obligations hereunder or (D) the
distribution rates provided by such Remarketing Agent in 


 


16





















 


connection with remarketings of securities by it in the twelve month
period ended as of the end of the last calendar quarter preceding a Remarketing
Date shall not be among the lowest remarketing distribution rates provided by
the top three underwriters during such 12 month period and (ii) no such
resignation by the Remarketing Agent nor any such removal by the Company shall
become effective until the Company shall have appointed at least one nationally
recognized broker-dealer as successor Remarketing Agent and such successor
Remarketing Agent shall have entered into a remarketing agreement with the
Company in which it shall have agreed to conduct the Remarketing in accordance
with the Remarketing Procedures. In such case, the Company will use its best
efforts to appoint a successor Remarketing Agent and enter into such a
remarketing agreement with such person as soon as reasonably practicable. The
provisions of Sections 3 and 6 shall survive the resignation or removal of any
of the Remarketing Agents pursuant to this Agreement.


 


Section 8.  Dealing in
the Remarketed Securities.  The
Remarketing Agents, when acting as Remarketing Agents or in their individual or
any other capacity, may, to the extent permitted by law, buy, sell, hold and
deal in any Remarketed Securities. Notwithstanding the foregoing, the
Remarketing Agents are not obligated to purchase any Remarketed Securities that
would otherwise remain unsold in a Remarketing. The Remarketing Agents may
exercise any vote or join in any action which any beneficial owner of
Remarketed Securities may be entitled to exercise or take pursuant to the
Series D Articles Supplementary with like effect as if it did not act in any
capacity hereunder. The Remarketing Agents, in their individual capacity, either
as principal or agent, may also engage in or have an interest in any financial
or other transaction with the Company as freely as if it did not act in any
capacity hereunder.


 


Section 9.  Remarketing
Agents’ Performance; Duty of Care. 
The duties and obligations of the Remarketing Agents shall be determined
solely by the express provisions of this Agreement and the Series D Articles
Supplementary. No implied covenants or obligations of or against the
Remarketing Agents shall be read into this Agreement or the Series D Articles
Supplementary. In the absence of bad faith on the part of the Remarketing
Agents, the Remarketing Agents may conclusively rely upon any document
furnished to it, which purports to conform to the requirements of this
Agreement or the Series D Articles Supplementary as to the truth of the
statements expressed in any of such documents. The Remarketing Agents shall be
protected in acting upon any document or communication reasonably believed by
it to have been signed, presented or made by the proper party or parties. The
Remarketing Agents, acting under this Agreement, shall incur no liability to
the Company or to any holder of Remarketed Securities in their individual
capacity or as Remarketing Agents for any action or failure to act, on its part
in connection with a Remarketing or otherwise, except if such liability is
judicially determined to have resulted from gross negligence, bad faith or
willful misconduct on its part, and as provided in Section 6(b) herein.


 


Section 10.  Termination.  Subject to the last sentence of Section 7,
this Agreement shall terminate as to the Remarketing Agents on the effective
date of the resignation or removal of the Remarketing Agents pursuant to Section 7.


 


In addition, the
obligations of either of the Remarketing Agents hereunder with respect to a
specific Remarketing may be terminated by it by notice given to the Company
prior to 10:00 A.M., New York City time, on the applicable Remarketing Date if,
prior to that time, any of the events described in Sections 5(g),
(h), (i), (j) or (k) herein shall have occurred or if either of the
Remarketing Agents shall decline to perform its obligations under this
Agreement for any reason permitted hereunder.


 


17





















 


The Company may elect to
terminate a specific Remarketing at any time prior to an Election Date with
respect to such Remarketing.


 


Section 11.  Notices.  All statements, requests, notices and
agreements hereunder shall be in writing, and:


 


(a)  if to the Remarketing
Agents, shall be delivered or sent by mail, telex or facsimile transmission c/o
Lehman Brothers Inc., 745 7th Avenue, New York, New York 10019, Attention:  Debt Capital Markets, Real Estate Group (Fax:  (212) 526-0943), with a copy to the General
Counsel, at the foregoing address and fax number.


 


(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 prospectus or any supplement thereto, Attention:
Paul Fisher, Chief Financial Officer (Fax: (630) 586-8010).


 


Any such statements, requests, notices or agreements shall take effect
at the time of receipt thereof.


 


Section 12.  Persons
Entitled to Benefit of Agreement. 
This Agreement shall inure to the benefit of and be binding upon the
Remarketing Agents, 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 (x) the representations, warranties, indemnities and
agreements of the Company contained in this Agreement shall also be deemed to
be for the benefit of the directors, officers and employees of the Remarketing
Agents and the person or persons, if any, who control the Remarketing Agents
within the meaning of Section 15 of the Securities Act and (y) the
representations, warranties, indemnities and agreements of the Remarketing
Agents contained in this Agreement shall be deemed to be for the benefit of
directors, officers and employees of the Company 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 12, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision
contained herein.


 


Section 13.  Survival.  The respective indemnities, representations,
warranties and agreements of the Company and the Remarketing Agents contained
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement shall survive the Remarketing 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.


 


Section 14.  Governing
Law.  This Agreement shall be
governed by and construed in accordance with the laws of the State of New York.


 


Section 15.  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.


 


Section 16.  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.


 


18





















 


If the foregoing
correctly sets forth the agreement between the Company and the Remarketing
Agents, please indicate your acceptance in the space provided for that purpose
below.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CENTERPOINT PROPERTIES
  TRUST

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael Kraft

  
	
   

  	
   

  	
  Name:

  	
  Michael Kraft

  
	
   

  	
   

  	
  Title:

  	
  Vice President and

  
	
   

  	
   

  	
   

  	
  Assistant Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
  Accepted:

  	
   

  
	
   

  	
   

  
	
  LEHMAN BROTHERS INC.

  	
   

  
	
  WACHOVIA CAPITAL MARKETS, LLC

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By: LEHMAN BROTHERS INC.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Kevin Smith

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Kevin Smith

  	
   

  
	
   

  	
  Title:

  	
  Managing Director

  	
   

  
							



 


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EXHIBIT A


 


FORM OF OPINION OF

COMPANY COUNSEL TO BE DELIVERED

PURSUANT TO SECTION 5(c)


 


1.                                       Any
applicable registration statement has been declared effective under the
Securities Act and any required filing of any applicable prospectus and any
supplements thereto pursuant to Rule 424(b) have been made in the manner and in
within the time period required by Rule 424(b); to such counsel’s knowledge
after inquiry of the Commission staff, no stop order suspending the
effectiveness of any applicable 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.


 


2.                                       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 any applicable 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 such applicable prospectus but
is not so described or is required to be filed as an exhibit to any applicable
registration statement or the filings incorporated by reference therein but has
not been so filed.


 


3.                                       Any
applicable registration statement and prospectus, including the documents
incorporated by reference in such applicable 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.


 


4.                                       The
statements contained in any applicable prospectus under the captions “Certain
United States Federal Income Tax Consequences” 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.


 


5.                                       The
Company is not 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.


 


6.                                       The
execution, delivery and performance by the Company of the Remarketing Agreement
and the Calculation Agreement the compliance by the Company with all of the
provisions of the Remarketing Agreement and the Calculation 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 


 


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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 most recently ended, (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  Remarketing Agreement and the
Calculation 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 Remarketed Securities,
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 Remarketing Agreement and the
Calculation Agreement by the Company and the consummation of the transactions
contemplated thereby.


 


7.                                       The
Company is organized in conformity with the requirements for qualification as a
REIT under the Code.


 


8.                                       The
Company has met the requirements to qualify as a REIT for its taxable years
ending prior to the date hereof.  If
(i) 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, any applicable registration statement and
prospectus, and (ii) the restrictions on ownership and transfer of
beneficial interest in the Company are in accordance with the limitations set
forth in the Declaration of Trust, any applicable registration statement and
prospectus, the Company will continue to so qualify.


 


Such
counsel shall also have furnished to a written statement, addressed to the
Remarketing Agents and dated the Remarketing Settlement Date, in form and
substance reasonably satisfactory to the Remarketing Agents, to the effect that
no facts have come to the attention of such counsel which lead it to believe
that any applicable registration statement, as of its effective date and as of
the Remarketing Settlement 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 any
applicable prospectus, as of the Remarketing Settlement Date and at the time
such applicable 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 included therein or omitted therefrom.


 










*                                         To
the extent no registration statement or prospectus is required under the
Securities Act in connection with the Remarketing, the foregoing opinions shall
be revised as appropriate to reflect such fact.


 


A-2





















 


EXHIBIT B


 


FORM OF OPINION OF SPECIAL MARYLAND COUNSEL

TO THE COMPANY TO BE DELIVERED PURSUANT TO

SECTION 5(d)


 


1.                                       The
Company has been duly formed and is validly existing as a real estate
investment trust in good standing under the laws of the State of Maryland.


 


2.                                       The
Company has the requisite real estate investment trust power and authority to
own, or hold under lease, its assets and conduct its business as described in
any applicable prospectus.


 


3.                                       The
execution and delivery of the Remarketing Agreement and the Calculation Agent
Agreement by the Company have been authorized by all necessary real estate
investment trust action on the part of the Company under its declaration of
trust and by-laws and the Maryland REIT Law; and each of the Remarketing
Agreement and the Calculation Agent Agreement has been duly executed and, to
such counsel’s knowledge, delivered by the Company.


 


4.                                       The
purchasers of the Remarketed Securities are receiving good, valid and
marketable title to the Shares, free and clear of all security interests,
mortgages, pledges, liens, encumbrances, claims and equities of such purchasers
acquire such Shares in good faith and without notice of any such security
interests, mortgages, pledges, liens, encumbrances, claims or equities.  The Remarketed Securities conform to the
description thereof contained in any applicable prospectus.


 


5.                                       The
execution and delivery by the Company of the Remarketing Agreement and the
Calculation Agent Agreement the compliance by the Company with the provisions
of the Remarketing Agreement and the Calculation Agent Agreement and the
consummation of the transactions contemplated by the Remarketing Agreement and
the Calculation Agent Agreement:  (i) will
not contravene any provision of the Maryland REIT Law; (ii) will not
result in any violation of the provisions of the declaration of trust or
by-laws of the Company; and (iii) will not, to our knowledge, result in
any violation of any order, rule, regulation or decree of any court or governmental
agency or authority of the State of Maryland issued under or pursuant to the
Maryland REIT Law and applicable to the properties, assets or business of the
Company.


 


6.                                       No
authorization, approval, consent, decree or order of any court or governmental
authority or agency is required under the Maryland REIT Law in connection with
the offer and sale of the Remarketed Shares in accordance with the Remarketing
Agreement, except for such as have been obtained or rendered, as the case may
be.


 


7.                                       The
statements contained in any applicable prospectus under the caption “Certain
Provisions of Maryland Law and of the CenterPoint Properties Trust 


 


B-1





















 


Declaration
of Trust and By-laws” insofar as such statements constitute summaries of
Maryland law or of the declaration of trust or bylaws of the Company,
constitute a fair summary thereof.


 


8.                                       The
Company has, in accordance with the declaration of trust of the Company,
exempted the holders of Remarketed Shares from the ownership limit contained in
Article IV of the declaration of trust, with respect to ownership of the
Remarketed Securities.


 










*                                         To
the extent no registration statement or prospectus is required under the
Securities Act in connection with the Remarketing, the foregoing opinions shall
be revised as appropriate to reflect such fact.


 


B-2





















 


EXHIBIT C


 


1.                                       The
Company has been duly formed and is validly existing as a real estate
investment trust in good standing under the laws of the State of Maryland.


 


2.                                       This
Remarketing Agreement and the Calculation Agreement were duly and validly
authorized, executed and delivered by the Company.


 


3.                                       The
Remarketed Securities conform in all material respects to the description
thereof in any applicable prospectus.


 


4.                                       The
purchasers of the Remarketed Securities are receiving good, valid and
marketable title of the Shares, free and clear of all security interests,
mortgages, pledges, liens, encumbrances, claims and equities if such purchasers
acquire such Shares in good faith and without notice of any such security
interests, mortgages, pledges, liens, encumbrances, claims or equities.


 


Such
counsel shall also have furnished to a written statement, addressed to the
Remarketing Agents and dated the Remarketing Settlement Date, in form and
substance reasonably satisfactory to the Remarketing Agents, to the effect that
no facts have come to the attention of such counsel which lead it to believe
that any applicable registration statement, as of its effective date and as of
the Remarketing Settlement 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 any
applicable prospectus, as of the Remarketing Settlement Date and at the time
such applicable 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 included therein or omitted therefrom.


 










*                                         To
the extent no registration statement or prospectus is required under the
Securities Act in connection with the Remarketing, the foregoing opinions shall
be revised as appropriate to reflect such fact.


 


C-1