Exhibit 10.2
RIGHT OF FIRST OFFER
AGREEMENT
THIS RIGHT OF FIRST OFFER
AGREEMENT (“
Agreement ”) is made and entered into as of the 6th
day of April, 2005, by and between CENTERPOINT PROPERTIES
TRUST , a Maryland real estate investment trust (“
CNT ”), and CENTERPOINT JAMES FIELDING, LLC , a
Delaware limited liability company (“ Venture
”).
RECITALS
:
A.
CNT and CNT Affiliates (defined
below) (collectively, “ CNT Entities ”) are the
owners of certain parcels of real estate improved with industrial
buildings (each parcel of real estate, together with the
improvements located thereon, is hereinafter referred to
individually as an “ Existing Property ”, and
all of the parcels of real estate, together with the improvements
located thereon, are hereinafter collectively referred to as the
“ Existing Properties ”).
B.
Seller and Venture have entered into
eight (8) agreements to purchase and sell properties all dated
April 6, 2005 (collectively, the “ Sale
Agreements ”). Pursuant to one of the Sale
Agreements, CNT has agreed, except as otherwise provided herein,
that CNT would grant or cause the CNT Entities to grant to Venture
a commercially reasonable right of first offer with respect to the
purchase of the following Properties located in the JF US Territory
(defined below): (x) the Existing Properties and
(y) all parcels of real estate improved with industrial
properties acquired or developed by CNT or any of the CNT
Affiliates after the date hereof and prior to the Outside Date
(defined below), together with the improvements located thereon
(each parcel of real estate so acquired, together with the
improvements located thereon, is hereinafter referred to as a
“ Future Property ”; all of the parcels of real
estate so acquired, together with the improvements located thereon,
are hereinafter collectively referred to as the “ Future
Properties ”; an Existing Property and/or a Future
Property are hereinafter sometimes referred to as a “
Property ”; and the Existing Properties and the Future
Properties are hereinafter collectively referred to as the “
Properties ”).
C.
This Agreement has been entered into
to satisfy CNT’s and Venture’s commercial objectives,
including CNT’s redevelopment requirements and
Venture’s capital raising requirements.
D.
In order to satisfy CNT’s
agreement to grant Venture or cause to be granted to Venture, a
commercially reasonable right of first offer with respect to the
Properties, CNT and Venture desire to enter into this
Agreement.
NOW THEREFORE
, for and in consideration of the
sum of Ten and No/100 Dollars ($10.00), in hand paid, and other
good and valuable consideration, the receipt, adequacy and
sufficiency of which are hereby acknowledged, and in consideration
of the mutual agreements set forth in this Agreement, CNT and
Venture agree as follows:
1.
Disposition
Transactions .
If during the Term of this Agreement (defined below) any one of the
CNT Entities, in its sole discretion, decides to sell any of the
Properties that it owns in the JF US Territory (“
Disposition Transaction ”), CNT shall give written
notice of said decision (“ Offer
Notice ”) to Venture. CNT shall give the
Offer Notice to Venture in two circumstances. First, CNT
shall, within thirty (30) days of the completion of CNT’s
annual budget process during each calendar year prior to the
Outside Date, give an Offer Notice to Venture (“ Annual
Offer Notice ”). Second, CNT shall provide
Venture with an Offer Notice with respect to any Properties that it
decides to sell during the Term of this Agreement that were not
included in the most recent Annual Offer Notice. Each Offer
Notice shall be accompanied by a list of the Properties CNT has
decided to sell, the closing dates for each of said Properties
(which dates shall not be sooner than thirty (30) days after the
date of the Offer Notice), and the following due diligence
materials: operating statements, leases, reports relating to the
physical and/or environmental condition of the applicable
Properties, a statement of the estimated value of the applicable
Properties from an independent industrial real estate broker with
at least ten (10) years experience in the marketplace (which value
shall not be binding on CNT or Venture) if in CNT’s
possession, rent rolls and revenue and expense statements.
CNT and Venture shall use reasonable efforts to agree upon the
format and scope of such materials, but agree that the format and
scope shall be similar to the materials typically provided by CNT
to Venture in connection with the Sale Agreements.
The term Disposition Transaction
shall exclude any Permitted Sale (defined below). The term
“ Permitted Sale ” as used herein shall mean (i)
any pledge or other secured lending transaction, (ii) any release
or termination of liens, (iii) a sale or transfer of any of the
Properties or any interest therein to a “ CNT
Successor ” (defined below), or to one of the CNT
Entities, (iv) any transaction where CNT or one of the CNT
Affiliates obtains a bona fide first mortgage from an institutional
lender not related to or affiliated with CNT or one of the CNT
Affiliates which mortgage is a so-called “Participating
Mortgage” under which the lender has a right to participate
in the profits or cash flow or both of any of the Properties, (v) a
sale of a Property if such Property is sold in a transaction
involving the simultaneous leaseback of the entirety of such
Property by CNT, one of the CNT Affiliates or a CNT Successor for a
term of not less than five (5) years, (vi) a sale to a tenant or
existing user of a Property, (vii) a sale or transfer of Properties
which are 75% or more vacant, or (viii) sales by ventures in which
CNT and any CNT Affiliates are not the sole beneficial owners
(unless CNT or a CNT Affiliate has control over such venture such
that it can bind it to provide a right of first offer as provided
under this Agreement and holds at least a 50% equity interest in
such a venture). As used in this Agreement, the term “
CNT Successor ” shall mean any entity (i) which
results from a merger or consolidation with CNT or (ii) which
acquires all or substantially all of the assets of CNT for a
legitimate business purpose. As used herein, the term “
CNT Affiliate ” shall mean any entity in which CNT (i)
has control over such entity such that it can bind such entity to
sell property, and (ii) whose balance sheet is consolidated with
the balance sheet of CNT. As used herein, the term “
JF US Territory ” shall mean the Chicago Consolidated
Metropolitan Statistical Area (“ CMSA ”) which
comprises the Chicago Primary Metropolitan Statistical Area
(“ PMSA ”) (each statistical areas compiled by
the United States Office of Management and Budget of the Executive
Office of the President) consisting of nine counties in
northeastern Illinois (Cook, DuPage, Kane, Lake, McHenry, Will,
Grundy, Kendall and De Kalb) plus two additional counties (Lake
county in northwestern Indiana and Kenosha county in southeastern
Wisconsin).
2.
Response and Bid
Notices .
Within seven (7) days after CNT gives an Offer Notice to Venture
(“ Response Period ”), Venture shall give
written notice (“ Response Notice ”) to CNT
designating which of the Properties referenced in the Offer Notice
it desires to purchase. Within seven (7) days after Venture gives a
Response Notice to CNT (“ Bid Notice Period ”),
Venture shall
2
provide a second notice (“
Bid Notice ”) to CNT setting forth the purchase price
that Venture is willing to pay to purchase each of the Properties
designated by Venture in the Response Notice as Properties it
desires to purchase. CNT may, in its sole and absolute
discretion, reject the purchase price proposed by Venture for any
one or more of the Properties. With respect to the Properties
listed on the Response Notice that have a purchase price that has
been approved by CNT, if any, CNT and Venture shall have a period
of thirty (30) days, inclusive of the Bid Notice Period (“
Contract Period ”), to enter into an unconditional
agreement to purchase and sell and perform due diligence with
respect to such Properties. The agreement to purchase and
sell is intended to be substantially the same as the Sale
Agreements with modification based on the Property in question. The
agreement to purchase and sell shall obligate Venture to provide
earnest money in the amount of one percent (1%) of the purchase
price. CNT and Venture acknowledge and agree that there are
material terms and conditions of any agreement to purchase and sell
that remain to be negotiated and that neither CNT nor Venture shall
be under any obligation to enter into an agreement to purchase and
sell any of the Properties. The Properties for which CNT has
rejected the purchase price indicated in the Bid Notice and the
Properties for which the purchase price indicated in the Bid Notice
was approved but an agreement to purchase and sell has not been
executed by CNT and Venture during the Contract Period are
hereinafter collectively referred to as “ ROFR
Properties ”.
3.
Right of First
Refusal . During the one (1) year period (“
ROFR Period ”) after a Bid Notice is given by Venture
to CNT, Venture shall have a right of first refusal to purchase the
ROFR Properties in accordance with the provisions of this
Agreement. CNT agrees that if it receives or delivers a bona
fide letter of intent or other bona fide expression of interest in
purchasing or selling any one or more of the ROFR Properties
(“ Letter of Intent ”) that CNT has accepted,
Venture shall, subject to the provisions set forth in this
Section 3 , have the right to purchase the applicable
ROFR Properties on the same terms and conditions set forth in the
Letter of Intent. CNT shall provide a signed copy of the
Letter of Intent to Venture promptly after its receipt
thereof. If Venture decides to exercise such right to
purchase the ROFR Properties covered by the Letter of Intent,
Venture shall give written notice to CNT within fourteen (14) days
thereafter (“ ROFR Exercise Period
”). This Section 3 shall not apply to
any Letter of Intent received by CNT after the Outside
Date.
In the event that the Letter of
Intent provides for a “due diligence,” or other
contingency, those same “due diligence” provisions
shall be applicable to the Venture’s purchase of the ROFR
Properties, but qualified as f
