EXHIBIT 10.21
RIGHT OF FIRST REFUSAL AGREEMENT
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THIS RIGHT OF FIRST REFUSAL AGREEMENT ("Agreement") is made and
executed this 28th day of September, 1998, by and between 257 OXON, LLC ("Oxon")
and CORPORATE OFFICE PROPERTIES, L.P., its permitted successor and assigns
("COPLP").
RECITALS
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Oxon is the owner of those two condominium units ("Property") described
more specifically in Exhibit "A" attached hereto and by this reference made a
part hereof. These condominium units are located in the Constellation Centre
Condominium in Prince George's County, Maryland. Oxon is desirous of selling the
Property and/or either of the units comprising same and will be engaged in
marketing same. COPLP may at some time be interested in purchasing the Property
or either of the units comprising same and is accordingly desirous of obtaining
first refusal rights with regard to the Property.
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the adequacy of which is acknowledged, Oxon grants to
COPLP for the term as herein described a right of first refusal on the Property
on the terms and conditions as set forth and provided for herein, namely:
1. Term. The term of this Agreement shall commence as of the date
hereof and shall expire on that date which is two (2) years following ("Term").
2. Right to Inspect. From and after execution of this Agreement
by both Oxon and COPLP, COPLP and COPLP's consultants shall have the right to
enter upon the Property and conduct, at COPLP's sole expense, any engineering
tests, development and land use studies, environmental analysis, soil tests,
topographical and other surveys, wetlands and flood plain delineations, and
other surveys, tests and studies (collectively, "Site Investigations") as COPLP
deems necessary. COPLP shall give Oxon at least one (1) day's notice of its
desire to enter the Property to inspect and COPLP shall coordinate the
scheduling of such inspection with Seller, taking into account any work Seller
may be performing on the Property. All lands, trees, shrubs, grass and field
areas shall be restored as closely as possible to their pre-test condition.
COPLP and its consultants shall enter and test the Property at their own risk;
and COPLP and/or its consultants shall carry adequate commercial general
liability insurance of not less than $1,000,000 combined single limit naming
Oxon as an additional insured. COPLP and/or its consultants shall provide Oxon
with a certificate evidencing such insurance promptly upon request. Further,
COPLP shall indemnify and save Oxon harmless from any and all suits, claims of
injuries and judgments, and reasonable attorneys' fees, in any way arising out
of such entry and testing of the Property, which indemnification and obligation
to hold Oxon harmless shall survive any termination of this Agreement.
3. Right of First Refusal. Oxon hereby agrees that during the
Term of this Agreement, if it receives a bona fide third-party expression of
intent to purchase the Property and/or either unit within same or if it receives
an offer to purchase the limited liability company interests of Oxon which Oxon
desires to accept, Oxon shall first offer COPLP the opportunity to purchase the
Property or portion thereof or LLC interest at the same price and upon the same
terms and conditions as are provided in the expression of intent in accordance
with the following procedure:
(a) Oxon shall cause the expression of intent to be reduced to
writing, which writing may take the form of a letter of understanding, term
sheet or other expression of interest which includes price and, in the opinion
of counsel for the Oxon, sufficient other terms and conditions to describe the
proposed transaction (the "Offer"). Oxon shall notify COPLP, in writing, of its
desire to accept the Offer (the "Initial Notice"). The Initial Notice shall set
forth the parcel or portion of the Property subject to the Offer and such other
material terms and conditions of the Offer as are reasonable for COPLP to
analyze the Offer, and shall be accompanied by a copy of the Offer.
(b) COPLP shall have the right, exercisable upon written
notice to Oxon within fifteen (15) days after COPLP's receipt of the Initial
Notice, to accept or reject the offer contained in the Initial Notice. If by its
reply COPLP accepts the Offer of Oxon, such reply notice shall be accompanied by
the deposit specified in the Offer, if any, and shall constitute an agreement
binding on Oxon and COPLP to sell and purchase the Property or portion thereof
or LLC interest, at the price and upon the terms and conditions stated in the
Initial Notice.
(c) If COPLP does not unconditionally accept the Offer of Oxon
contained in the Initial Notice within such fifteen (15) day period or does not
respond to the Initial Notice within such fifteen (15) day period, time being of
the essence, then Oxon shall have the right to sell the Property or portion of
same or LLC interest in accordance with the terms and conditions specified in
the Offer free and clear of COPLP's rights hereunder. If the contemplated sale
is not completed by the date set forth in the Offer, in accordance with the
terms of the Offer COPLP's right of first refusal shall be reinstated and Oxon
shall be required to again comply with the terms of this Agreement.
(d) The Property consists of two separate condominium units.
The right of first refusal as herein granted and described shall apply to the
Property as a whole and each unit within same as Oxon may desire to sell and on
which it receives an expression of intent to purchase. If the right of first
refusal shall be exercised on only a portion of the Property, same shall remain
in effect as to the balance of the Property for the Term hereof.
(e) In the event Oxon does not consummate the sale of the
Property or any portion thereof or LLC interest subject to an Offer for any
reason, after COPLP shall have not exercised its right of first refusal on same,
then in that event the right of first refusal shall be reinstituted and Oxon
shall for the continuing Term not sell the Property or portion thereof or LLC
interest without first reoffering same to COPLP pursuant to subparagraph (a),
(b) and (c) above.
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(f) COPLP shall have the right to assign this Agreement in
whole or in part without the consent of Oxon (i) to any entity controlled by,
controlling, or under common control with COPLP or Corporate Office Properties
Trust (where control shall mean owning directly or indirectly fifty percent
(50%) or more of the voting stock or voting interest of such entity), (ii) to
any person or entity designated by COPLP as purchaser of the Property or any
portion thereof (with respect to such portion only) after COPLP has exercised
its right of first refusal with respect thereto, but provided that Buyer shall
remain liable hereunder, or (iii) to any successor entity of Buyer resulting
from the acquisition of Buyer by such entity or a merger of Buyer where such
successor entity is the surviving entity. COPLP shall not have any other right
to assign this Agreement in whole or in part without the prior written consent
of Oxon, which consent shall not be unreasonably withheld or delayed.
4. Oxon's Warranties and Representations. Oxon warrants,
represents and covenants to COPLP that the following items are true in all
material respects and shall be deemed to have been restated at the time(s) of
COPLP's exercise of its rights hereunder and at the time(s) of closing(s) on the
sale of the Property or either unit comprising same, namely:
(a) Oxon is the fee simple owner of the entire Property and
each legally separate unit of same, and has not entered into any contract of
sale, option agreement, right of first refusal or other agreement for the sale
of any part of the Property; and
(b) Oxon has full power and authority to execute, deliver and
perform this Agreement in accordance with its terms; and
(c) To Oxon's knowledge, as of the date of this Agreement, the
Property is generally zoned to permit its use for office and retail purposes and
Oxon shall not join in or consent to any change in the zoning of the Property
which would prohibit its use for office and retail purposes.
(d) To Oxon's knowledge, there are no underground storage
tanks on the Property.
(e) To its knowledge, Oxon has not used, generated, stored or
disposed, and from and after the date of this Agreement, except to the extent
consistent with current real estate industry practices for such type of
property, consistent with use of the Property for office and retail purposes,
and permitted under governmental regulations, will not use, generate, store or
dispose, on, under or about the Property any hazardous waste, toxic substance or
related materials or any friable asbestos or substance containing asbestos.
5. Miscellaneous.
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(a) Oxon and COPLP warrant that, in connection with this
Agreement, they have dealt with no broker, agent or other party who may be
entitled to a commission or finder's fee, and each party agrees to indemnify the
other from any claims or damages, including
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reasonable attorneys' fees, that the other may incur as a result of the
violation of this warranty, which warranty and indemnification shall survive
settlement and any termination of this Agreement.
(b) Any written notices required under the terms of this
Agreement shall be sent by Federal Express Delivery or other national overnight
delivery service and addressed as follows:
To Oxon:
257 Oxon LLC
c/o Constellation Properties, Inc.
000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Secretary
and
0000 Xxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Managing Director, CREI
To COPLP:
Corporate Office Properties, L.P.
000 Xxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx, III
with copies to:
F. Xxxxxxx Xxxxxxx, Esquire
Saul, Ewing, Xxxxxx & Xxxx LLP
Center Square West
0000 Xxxxxx Xxxxxx - 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Any party hereto may change its notice address by giving notice of such change
in accordance with this paragraph. Notice shall be deemed to have occurred upon
actual delivery.
(c) Time shall be of the essence of this Agreement.
(d) If the last day of any time period specified herein, falls
on a Saturday, Sunday or holiday, the period for the required action shall be
extended until 5:00 PM on the next business day.
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(e) This Agreement contains the final and entire agreement
between the parties thereto, and neither party shall be bound by any term,
condition, statement or representation not herein contained. The Agreement may
not be modified or changed orally, buy only by agreement in writing, signed by
the party against whom enforcement of any change is sought.
(f) The Agreement shall be governed by the laws of the State
of Maryland. The titles of the paragraphs are inserted as a matter of
convenience and for reference and in no way define, limit or describe the scope
of this Agreement or the intent of any provision hereof.
(f) Upon any expiration or termination of this Agreement and
the right of first refusal contained herein, each party hereto shall promptly
execute such instruments in recordable form as any party hereto may reasonably
require to confirm such expiration or termination. This Agreement may be
recorded by either party hereto.
(g) This Agreement shall be binding on and inure to the
benefit of the parties hereto and their respective successors and assigns.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, each of the parties hereto has executed or caused
this Agreement to be executed by its duly authorized representative on the day
and year first above written.
257 OXON, LLC
By: Constellation Properties, Inc., General
Partner
By:____________________________________
Xxx X. Xxxxxxxxxx, Secretary
CORPORATE OFFICE PROPERTIES, L.P.
By: Corporate Office Properties Trust,
Its sole general partner
By:____________________________________
Xxxx X. Xxxxxx, III
President and Chief Executive Officer
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EXHIBIT "A"
Description of the Property
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Unit 2 and Unit 7 in the Constellation Centre Condominium, as shown on the plat
entitled "Amended Plat of Constellation Centre Condominium, 12th Election
District, Prince George's County, Maryland", prepared by Xxxxxxxx-Xxxxxxxx Inc.
and recorded among the Land Records of Prince George's County in Plat Book X.X.
000, Xxxx Xx. 0.
