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


 


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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
follows:  if (i) Venture did not perform
any due diligence during the Contract Period with respect to the applicable
ROFR Property, or if the Contract Period expired more than one-hundred
eighty-two (182) days before the delivery of the notice from CNT to Venture of
the accepted Letter of Intent, Venture shall be entitled to perform “due
diligence” during the same period of time and upon the same terms and
conditions that the purchaser may perform pursuant to the terms of the Letter
of Intent, or (ii) Venture performed due diligence during the Contract Period
with respect to the applicable ROFR Property, but the Contract Period expired within
the preceding one hundred eighty-two (182) days, Venture shall have the right
to perform due diligence upon the same terms and conditions that the purchaser
may perform pursuant to the Letter of Intent with respect to the applicable
ROFR Property but only during the fourteen (14) day period following the ROFR
Exercise Period.


 


Notwithstanding the foregoing, Venture shall not have a right of first
refusal to purchase any ROFR Properties if (i) the aggregate purchase price
that the third party is willing to pay for the


 


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applicable ROFR Properties is 103% or more of the aggregate purchase
price offered by Venture for the applicable ROFR Properties in the Bid Notice,
(ii) the Letter of Intent includes ROFR Properties and other Properties which
are not ROFR Properties, or (iii) the Letter of Intent relates to more than one
of the ROFR Properties and Venture elects to purchase less than all of the ROFR
Properties covered by the Letter of Intent. 
In addition, the right of first refusal granted to Venture shall not
apply to any Permitted Sale.


 


4.                                      Properties
not Subject to the Terms of this Agreement.  The following Properties may be sold by
Seller to third parties and shall not be subject to the terms of this Agreement,
except as otherwise expressly provided in this Section 4:


 


(a)                            All Properties listed in an
Offer Notice and not designated as Properties Venture desires to purchase in a
Response Notice.  All such Properties may
be sold to third parties within one (1) year after the last day of the Response
Period, failing which said Properties shall again be subject to the terms of
this Agreement.


 


(b)                           All Properties listed in an
Offer Notice, in the event that Venture fails to issue a Response Notice within
the Response Period.  All such Properties
may be sold to third parties within one (1) year after the last day of the
Response Period, failing which said Properties shall again be subject to the
terms of this Agreement.


 


(c)                            All Properties listed by
Venture in a Response Notice, in the event that Venture fails to deliver a Bid
Notice to CNT within the Bid Notice Period. 
All such Properties may be sold to third parties within one (1) year
after the last day of the Bid Notice Period, failing which said Properties shall
be subject to the terms of this Agreement.


 


(d)                           All Properties listed by
Venture in a Response Notice but not listed in a Bid Notice to CNT within the
Bid Notice Period.  All such Properties
may be sold to third parties within one (1) year after the last day of the Bid
Notice Period, failing which said Properties shall again be subject to the
terms of this Agreement.


 


(e)                            Subject to the Venture’s
rights set forth in Section 3 above, CNT or a CNT Affiliate may
sell the ROFR Properties to a third party within one (1) year after the last
day of the Contract Period, failing which said Properties shall again be
subject to the terms of this Agreement.


 


(f)                              All ROFR Properties
covered by a Letter of Intent, if Venture fails to exercise its right to
purchase such ROFR Properties within the ROFR Exercise Period.  All such ROFR Properties may be sold to the
third party purchaser under the Letter of Intent within one (1) year after the
end of the ROFR Exercise Period, failing which such ROFR Properties shall again
be subject to the terms of this Agreement.


 


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With respect to all of the Properties described in this Section 4,
Venture shall, at the request of any of the CNT Entities, within five (5)
business days after the date of the request, execute an acknowledgment
indicating that it has waived its right to purchase the Property or Properties
in question, and hereby agrees to indemnify and hold CNT harmless from and
against all liabilities, claims, damages, costs and expenses, including but not
limited to reasonable attorneys’ fees, in the event that Venture fails to
execute such an acknowledgment.


 


5.                                      Term
of this Agreement.  The phrase “Term of this Agreement” as used herein
shall mean the period of time commencing on the Effective Date (defined below)
and ending on the Outside Date.  The
phrase “Effective Date” as used
herein shall mean the date that the Venture has acquired all of the properties
to be acquired by Venture pursuant to all of the Sale Agreements, other than
the “Substitute Properties” (as defined in the Sale Agreements) (said
properties are hereafter collectively referred to as the “Non-Substitute Properties”).  In the event that Venture fails to acquire
all of the Non-Substitute Properties as required by the Sale Agreements, other
than due to the default of any one or more of the CNT Entities, this Agreement
shall be null and void, and neither party shall have any liability to the other
hereunder.  The phrase “Outside Date” as used herein shall mean the
earlier of (i) the day preceding the third anniversary of the actual date of
the last closing of the Non-Substitute Properties to take place under the Sale
Agreements, (ii) the day preceding the first anniversary of the actual date of
the last closing of the Non-Substitute Properties to take place under the Sale
Agreements, if during the prior twelve (12) month period Venture has not
acquired at least Two Hundred Million and No/100 Dollars ($200,000,000.00) of
Properties (unless Seller has not proposed Disposition Transactions of at least
$200,000,000.00 in such twelve (12) month period), (iii) the day preceding the
second anniversary of the actual date of the last closing of the Non-Substitute
Properties to take place under the Sale Agreements, if during each of the two
preceding twelve (12) month periods Venture has not acquired, on average, at
least Two Hundred and Fifty Million and No/100 ($250,000,000.00) of Properties
during each of the two preceding twelve (12) month periods (unless Seller has
not proposed, on average, Disposition Transactions of at least $250,000,000.00
during each of the two preceding twelve (12) month periods), or (iv) the date
that CNT is no longer the owner of a 5% membership interest in Venture.  The date that is currently anticipated to be
the date of the last closing of the Non-Substitute Properties under the Sale
Agreements is February 1, 2006.  For
the purposes of subsections (ii) and (iii), properties purchased under the Sale
Agreements shall not be considered in making the calculations set forth in
subsections (ii) and (iii).


 


6.                                      Notices.  Any and all notices, requests, demands or
other communications hereunder shall be in writing and shall be deemed properly
served (i) on the date sent if transmitted by hand delivery with receipt
therefor, (ii) on the date sent if transmitted by facsimile (with confirmation
by hard copy to follow by overnight delivery service), (iii) on the date sent
if scanned to a .pdf file and transmitted by e-mail (with confirmation by hard
copy to follow by overnight delivery service), (iv) on the day after the notice
is deposited with a nationally recognized overnight courier, or (v) upon
receipt after being sent by registered or certified mail, return receipt
requested, first class postage prepaid, addressed as follows (or to such new
address as the addressee of such a communication may have notified the sender
thereof):


 


5





















 




	
  Venture:

  	
   

  	
  Mirvac
  Group

  Level 5, 40 Miller Street

  North Sydney, NSW 2060

  Australia

  Attn: Mr. Ben Hindmarsh

  Fax No.: 61 2 9004 8462

  E-Mail: benhindmarsh@mirvac.com.au

  
	
   

  	
   

  	
   

  
	
  With
  a copy to:

  	
   

  	
  Wildman
  Harrold Allen & Dixon LLP

  225 W. Wacker Drive, Suite 3000

  Chicago, Illinois 60606

  Attn: Kathleen M. Gilligan, Esq.

  Fax No.: (312) 201-2555  E-Mail:
  gilligan@wildmanharrold.com

  
	
   

  	
   

  	
   

  
	
  CNT:

  	
   

  	
  c/o
  CenterPoint Properties Trust

  1808 Swift Drive

  Oak Brook, Illinois 60523

  Attn: Mr. James N. Clewlow and

  Mr. Michael M. Mullen

  Fax No.: (630) 586-8010

  E-Mail: jclewlow@centerpoint-prop.com and

  mmullen@centerpoint-prop.com

  
	
   

  	
   

  	
   

  
	
  With
  a copy to:

  	
   

  	
  Weinberg
  Richmond LLP

  333 West Wacker Drive, Suite 1800

  Chicago, Illinois 60606

  Attn: Mark S. Richmond, Esq.

  Fax No.: (312) 807-3903

  E-Mail: mrichmond@wr-llp.com

  






 


7.                                      Miscellaneous.


 


(a)                                  Entire Agreement.  This document constitutes the sole agreement
between the parties with respect to the subject matter hereof and supersedes
any and all written agreements or understandings between them pertaining to the
transactions contemplated herein.  No
representations, warranties or inducements, express or implied, have been made
by any party to any other party except as set forth herein.


 


(b)                                 Captions.  The captions and headings in this Agreement
are for convenience only, are not a part of this Agreement and do not in any
way limit or amplify the provisions hereof.


 


(c)                                  Modifications.  All modifications to this Agreement must be
in writing and signed by CNT and Venture.


 


(d)                                 Successors and
Assigns.  No party shall assign its
rights or obligations hereunder without the written consent of the other
parties, which consent may be withheld in


 


6





















 


either party’s sole discretion. 
Notwithstanding the immediately preceding sentence, the Venture may
assign this Agreement to an affiliate of a member of the Venture that is not in
competition with CNT.  For the purposes
of this Section 7(d), an entity that is in competition with CNT is
an entity that is primarily engaged in the business of acquiring, developing,
owning and/or leasing industrial property. 
Subject to this subparagraph, this Agreement shall inure to the benefit
of and be binding upon the parties’ respective successors and assigns.


 


(e)                                  Governing Law.  This Agreement shall be interpreted and
enforced in accordance with the laws of the State of Illinois in effect on the
date hereof.


 


(f)                                    No Waiver.  No waiver by a party of any provision of this
Agreement shall be deemed to be a waiver of any other provision hereof or a
waiver of any subsequent breach by a party of the same or any other provision.


 


(g)                                 Number and Gender.  All personal pronouns used in this Agreement
shall include the other genders.  The
singular shall include the plural, and the plural the singular, whenever and as
often as may be appropriate.


 


(h)                                 Time.  Time is of the essence of this Agreement and
of every provision hereof.


 


(i)                                     Severability.  Any provision in this Agreement that is
unenforceable or invalid in any jurisdiction shall, as to such jurisdiction, be
ineffective, but only to the extent of such unenforceability or invalidity of
and without affecting the remaining provisions thereof or affecting the
operation, enforceability or validity of such provision in any other
jurisdiction.


 


(j)                                     Counterparts.  This Agreement may be executed in one or more
counterparts, each of which shall be a fully binding and enforceable agreement
against the party signing such counterpart, but all such counterparts together
shall constitute but one agreement.


 


(k)                                  Facsimile
Signatures.  The parties hereto agree
that the use of facsimile signatures for the execution of this Agreement shall
be legal and binding and shall have the same force and effect as if originally
signed.


 


(l)                                     Business Day.  The term “business day” shall mean any day
other than a Saturday, Sunday or day on which national banks in Chicago,
Illinois are closed for business to the public.


 


(m)                               Limitation of
Liability.  No present or future
partner, member, director, manager, officer, shareholder, employee, advisor,
affiliate or agent of or in Venture or any affiliate of Venture shall have any
personal liability, directly or indirectly, under or in connection with this
Agreement or any agreement made or entered into under or in connection with the
provisions of this Agreement, or any amendment or amendments to any of the
foregoing made at any time or times, heretofore or hereafter, and CNT and its
successors and assigns and, without limitation, all other persons and entities,
shall look solely to Venture’s assets for the payment of any claim or for any
performance, and CNT hereby


 


7





















 


waives any and all such personal liability.  For purposes of this Section 7(m),
no negative capital account or any contribution or payment obligation of any
partner or member in Venture shall constitute an asset of Venture.  The limitations of liability contained in
this Section 7(m) are in addition to, and not in limitation of, any
limitation on liability applicable to Venture provided elsewhere in this
Agreement or by law or by any other contract, agreement or instrument.  All documents to be executed by Venture shall
also contain the foregoing exculpation.


 


No present or future partner, member,
director, manager, officer, shareholder, employee, advisor, affiliate or agent
of or in CNT or any CNT Affiliate shall have any personal liability, directly
or indirectly, under or in connection with this Agreement or any agreement made
or entered into under or in connection with the provisions of this Agreement,
or any amendment or amendments to any of the foregoing made at any time or
times, heretofore or hereafter, and Venture and its successors and assigns and,
without limitation, all other persons and entities, shall look solely to CNT’s
assets for the payment of any claim or for any performance, and Venture hereby
waives any and all such personal liability. 
For purposes of this Section 7(m), no negative capital
account or any contribution or payment obligation of any partner or member in
CNT shall constitute an asset of CNT. 
The limitations of liability contained in this Section 7(m)
are in addition to, and not in limitation of, any limitation on liability
applicable to CNT provided elsewhere in this Agreement or by law or by any
other contract, agreement or instrument. 
All documents to be executed by CNT shall also contain the foregoing
exculpation.


 


(n)                                 Currency.  All payments and amounts referenced or
described in this Agreement shall be deemed to be in the currency of the United
States of America.


 


(o)                                 Facsimile
Signatures.  The parties hereto agree
that the use of facsimile signatures for the execution of this Agreement shall
be legal and binding and shall have the same force and effect as if originally
signed.


 


(p)                                 Other Agreements.  CNT and Venture have a business relationship
with each other and in connection therewith CNT and Venture have entered into
various other agreements as of the date hereof (“Other Agreements”).  A
default by either party under any Other Agreement not cured within any
applicable cure period shall be deemed to be a default by such party under this
Agreement.


 


(q)                                 No Recording.  Neither this Agreement nor any memorandum or
short form hereof shall be recorded or filed in any public land or other public
records of any jurisdiction, by either party and any attempt to do so may be
treated by the other party as a breach of this Agreement.


 


8





















 


IN WITNESS WHEREOF,
the parties hereto have executed and delivered this Agreement as of the date
and year first above written.


 


	
   

  	
  VENTURE:

  
	
   

  	
   

  
	
   

  	
  CENTERPOINT JAMES FIELDING, LLC,

  a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
              /s/
  Adrian Harrington

  	
   

  
	
   

  	
   

  	
  Name: Adrian Harrington

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  
	
   

  	
  ATTEST:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
              /s/
  Adrienne Parkinson

  	
   

  
	
   

  	
   

  	
  Name: Adrienne Parkinson

  
	
   

  	
   

  	
  Title: Assistant Secretary

  
	
   

  	
   

  
	
   

  	
  CNT:

  
	
   

  	
   

  
	
   

  	
  CENTERPOINT PROPERTIES TRUST,

  a Maryland real estate investment trust

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
             /s/
  

  	
  Michael M. Mullen

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
  Michael M. Mullen

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
  Chief Executive Officer

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
             /s/
  

  	
  James N. Clewlow

  	
   

  
	
   

  	
  Name:

  	
   

  	
  James N. Clewlow

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Chief Investment Officer

  	
   

  
														



 


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