EXHIBIT 10.14
OPTION AGREEMENT
(Plaza Las Xxxxxxx II)
THIS OPTION AGREEMENT (this "Agreement") is made on November 11,
2002, by and between Xxxxxxx Properties, L.P., a Maryland limited partnership
("Optionee" or the "Operating Partnership"), and Xxxxxxx Partners -- Plaza Las
Xxxxxxx II - Phase II, a California limited partnership ("Optionor").
RECITALS
A. Optionor is the sole member of MP-385 Colorado Equity, LLC, a
Delaware limited liability, (the "LLC") which is the sole member of Xxxxxxx
Partners -- 385 Colorado, LLC (the "Fee Owner" and collectively, with Optionor
and the LLC, the "Property Owners" and each individually, a "Property Owner").
The Fee Owner owns that certain real property described in Exhibit A attached
hereto (the "Land") and the buildings, structures, and other improvements
situated on the Land or hereinafter constructed or acquired (the "Property").
B. The Operating Partnership desires to have the right to either (i)
merge, without being obligated to merge, with Optionor with the Operating
Partnership as the survivor or (ii) acquire, without becoming obligated to
acquire, all of Optionor's right, title and interest, as a member of the LLC,
including, without limitation, all of its voting rights and interests in the
capital, profits and losses of the LLC (such, right, title and interest in and
to the LLC is hereinafter collectively referred to as the "LLC Interests"), each
on the terms and subject to the conditions set forth herein. As used herein,
"Option" means either the option to merge with Optionor or acquire the LLC
Interests under this Agreement.
C. The Operating Partnership desires to acquire the Option as part
of a series of transactions (collectively, the "Formation Transactions")
relating to the proposed initial public offering (the "Public Offering") of
common stock of Xxxxxxx Properties, Inc., a Maryland corporation (the
"Company"), the general partner of the Operating Partnership.
D. The Property will be (i) managed by the Operating Partnership or
an affiliate (the "Manager") pursuant to a separate property management and
leasing agreement between Optionor and the Manager to be executed concurrently
with the consummation of the Public Offering (the "Management Agreement"), and
(ii) developed by the Operating Partnership or an affiliate (the "Developer")
pursuant to a separate development agreement between Optionor and the Developer
to be executed concurrently with the consummation of the Public Offering (the
"Development Agreement").
E. Concurrently with the consummation of the Public Offering, the
Company and Xxxxxx X. Xxxxxxx III ("Xxxxxxx") will enter into a Non-Competition
Agreement (the "Non-Competition Agreement") through which Xxxxxxx will agree to
refrain from certain competitive activities subject to the terms and conditions
contained therein.
F. Optionor currently has two partners, MP--Pasadena, Ltd. and
Xxxxxxx--Pasadena Partners ("Xxxxxxx"). It is currently anticipated that the
Operating Partnership will acquire Xxxxxxx'x partnership interest in Optionor
for cash prior to the Closing Date (as defined in Section 3.4(c) below).
1
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and conditions set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Operating Partnership and Optionor agree as follows:
1. Grant of Option. Optionor hereby grants to the Operating Partnership an
option to (i) merge with Optionor (the "Merger") or (ii) acquire all of
Optionor's right, title and interest in the LLC Interests on the terms and
conditions set forth herein.
1.1 Effectiveness of Option. This Agreement and the Option granted
hereby shall not be effective until such time as the Public Offering is
consummated.
1.2 Commencement of Option. The Operating Partnership shall have the
right to exercise the Option at any time after the consummation of the Public
Offering until the expiration of the Option pursuant to Section 1.3.
1.3 Term of Option. The Option shall expire five (5) years from the
date on which a temporary certificate of occupancy or similar evidence of
completion is obtained with respect to the building(s) constructed on the Land,
unless earlier terminated as described in Section 8 hereof (such term being the
"Exercise Period" or the "Option Term").
1.4 Consents. The consummation of the transactions contemplated by
this Agreement are subject to any consents required under the "Existing
Financings", and the "New Financings" (each as hereinafter defined), and are
subject to the consents to be obtained in connection with the Public Offering
and the Formation Transactions.
1.5 Subordination. The Option granted by this Agreement and the
rights of the Operating Partnership hereunder are and shall be subordinate to
any Existing Financings and New Financings.
2. Process for Exercise of Option.
2.1 Exercise. The Option may be exercised during the Exercise Period
by delivery of written notice by the Operating Partnership to Optionor (the
"Exercise Notice"), stating that the Option is exercised on the terms set forth
in this Agreement. The date upon which the Exercise Notice is received by
Optionor shall hereinafter be referred to as the "Exercise Date." If the Option
is exercised, the Merger shall occur or the LLC Interests shall be conveyed
within 90 days of the Exercise Date, subject to the terms of the Acquisition
Agreement (as defined in Section 3.1).
2.2 Inspection. During the term of this Agreement, Optionor agrees
to permit the Operating Partnership and its agents to enter upon the Property,
subject to the rights of any tenants, at reasonable times to make such surveys,
inspections and tests as may reasonably be necessary in connection with its
examination of the Property. The Operating Partnership hereby agrees to repair
any damage it or its agents may cause to the Property as a result of any such
inspections or tests or any other related damage caused by the Operating
Partnership or its
2
agents, and further agrees to indemnify, defend and hold Optionor harmless from
and against any and all claims, losses, damages and expenses, including
reasonable attorneys' fees, suffered by the Operating Partnership as a direct
result of the Operating Partnership's or the Operating Partnership's agents
entry upon or acts upon the Property in connection with any such inspections or
tests or any other related damage caused by the Operating Partnership or its
agents.
2.3 Information. Optionor agrees to permit the Operating Partnership
and its agents to review all books, records and other documentation reasonably
requested by the Operating Partnership with respect to Optionor, the LLC, the
LLC Interests and the Property which are in Optionor's possession and control.
Optionor will provide (or cause Manager to provide) a report of the status of
the Property on a quarterly basis which shall include unaudited financials, the
Property's operating history and Optionor's current estimate of historical costs
in the Property.
3. Process
3.1 Escrow. Upon exercise of the Option by delivery of either an
Exercise Notice or an OP Notice (as defined in Section 4) by the Operating
Partnership, Optionor shall open, within five business days after the Exercise
Date, an escrow with a title insurance company or other escrow company selected
by Optionor and reasonably acceptable to the Operating Partnership at an office
of such title insurance company in Los Angeles County and shall notify the
Operating Partnership of the number and location of such escrow (the "Escrow").
Within 30 days after opening the Escrow, the parties shall execute a mutually
acceptable merger agreement or acquisition agreement, as applicable, containing
terms and conditions customary in similar "as is" transactions and in any case
consistent with this Agreement (an "Acquisition Agreement") and shall deliver
one executed copy to each of Optionor and the Operating Partnership, and one
executed copy to the escrow holder. Optionor and the Operating Partnership shall
thereafter additionally execute, acknowledge and deliver any and all other
documents reasonably necessary or appropriate to carry out the terms and
conditions of the Acquisition Agreement. Optionor and the Operating Partnership
shall execute and deposit such additional escrow instructions as shall be
reasonably required by the escrow holder to consummate the transactions
contemplated herewith; provided, however, that in the event of any conflict
between the printed portion of any such additional instructions and the
provisions of this Agreement, the provisions of this Agreement shall control.
3.2 Consideration.
(a) The consideration to be paid by the Operating Partnership for
the LLC Interests or upon consummation of the merger (the "Consideration")
pursuant to an exercise of the Option under Section 2.1 shall be equal to the
total of (A) the sum, without duplication, of the total accumulated costs
(except to the extent of any liability assumed by the Operating Partnership) of
the Property Owners, Xxxxxxx or any affiliate of Xxxxxxx as of the Closing Date
(as hereinafter defined), directly related to the acquisition (including the
acquisition of any partnership, membership or other interests in any Property
Owner), financing (excluding interest paid to Xxxxxxx or affiliates of Xxxxxxx),
leasing, entitlement, operation, maintenance and development of the Property,
including, without limitation, development and management fees
3
paid to affiliates of Xxxxxxx prior to the consummation of the Public Offering
to cover the Property's proportionate share of overhead and costs and all such
fees paid to affiliates of the Operating Partnership after the consummation of
the Public Offering, property taxes, insurance, predevelopment and entitlement
costs and fees, consultants' and attorneys' fees and third party financing costs
and fees (including principal to the extent used for the benefit of the Property
but without duplication of other costs, and interest, original issue discount,
origination fees, points, and any prepayment, assumption or other fees, costs
and penalties incurred by a Property Owner or the Operating Partnership in
connection with the assumption or prepayment of Property Indebtedness (as
defined in Section 3.2(b)(i), in each case in proportion to the extent the net
proceeds of the underlying indebtedness were used for the benefit of the
Property), provided Optionor provides evidence of such costs reasonably
acceptable to the Operating Partnership to support Optionor's determination of
such costs; and (B) an amount equal to an eight percent (8%) per annum return,
compounded quarterly, on the sum, without duplication, of (x) the aggregate
amount of capital contributed to any Property Owner, net of actual distributions
made by the Property Owners on account of such capital contributions, and (y)
the aggregate principal amount of all advances made to or for the benefit of the
Property Owners by Xxxxxxx, any affiliate of Xxxxxxx or any other direct or
indirect investor in any Property Owner (if any), net of actual repayments on
account of such advances by or on behalf of the Property Owners, which return
shall accrue from the date on which each such capital contribution or advance
was made, taking proper account of the amount and timing of each such capital
contribution or advance and any amounts distributed or repaid by the Property
Owners on account of each such capital contribution or advance. If at any time
the Property Owners have retained distributable cash in excess of the sum of
$1,000,000 (excluding reserves required by lenders or other applicable third
parties) relating solely to the Property, such cash shall be deemed distributed
on account of capital contributed or repaid on account of advances for purposes
of this subclause (B), and the Optionor shall not be entitled to an eight
percent (8%) return on any amounts at any time that were retained by the
Property Owners in excess of $1,000,000 (excluding reserves required by lenders
or other applicable third parties relating solely to the Property).
(b) Upon the closing under the Acquisition Agreement, the
Consideration shall be payable by the Operating Partnership first through the
assumption of all Property Indebtedness (including the payment of any applicable
prepayment, assumption or other fees, costs and penalties) and, if the Operating
Partnership so elects, the subsequent repayment thereof, and second, with
respect to any remaining unsatisfied portion of the Consideration, in the form
of "OP Units" (as defined below) in the Operating Partnership. For purposes of
this Section 3.2(b), the value of Property Indebtedness assumed by the Operating
Partnership shall be the principal amount thereof and any accrued and unpaid
interest, plus any related prepayment, assumption and other fees, costs and
penalties incurred by the Operating Partnership in connection with the Operating
Partnership's assumption or repayment of such Property Indebtedness. The value
of OP Units shall be their "Market Value" (as defined below). In lieu of the
foregoing, upon the agreement of both the Operating Partnership and Optionor,
instead of issuing OP Units as part of the Consideration the Operating
Partnership may pay all or any portion thereof in cash.
(i) "Property Indebtedness" means (A) any financings or other
arrangements entered into by any Property Owner (or any
affiliate of the Property Owners) prior to the date hereof
relating to the Property as reflected on
4
Schedule 3.2 attached hereto plus any mezzanine or bridge
financing and any other financings reflected on the
Preliminary Title Report prepared by Commonwealth Title
Insurance Company dated August 21, 2002, Order No. 1204908-27
(collectively, the "Existing Financings"), and (B) any
financing or other arrangement entered into by any Property
Owner (or any affiliate of any Property Owner) after the date
hereof which relate to the Property, including, without
limitation, any mezzanine or bridge financing, or amendments
or extensions of the Existing Financings (the "New
Financings"), but only to the extent the aggregate of all
Existing Financings and New Financings (plus any related
prepayment, assumption or other fees, costs and penalties)
does not exceed the Consideration. Any financings or other
arrangements relating to the Property in excess of the amount
of the Consideration shall be the responsibility of Optionor.
Optionor shall provide the Operating Partnership with notice
of any known default under any of the Existing Financings and
New Financings and shall provide copies of any written default
notices any Property Owner may receive from the lenders of
such financings.
(ii) The term "Market Value" means the average of the daily market
price of the common stock of the Company (or any successor
thereto) (the "Common Stock") for the ten (10) consecutive
trading days immediately preceding the closing of the
transactions under the Acquisition Agreement. For purposes of
determining Market Value, one (1) OP Unit shall equal one (1)
share of Common Stock, subject to any adjustments required
under the partnership agreement in effect for the Operating
Partnership or to reflect stock splits, reclassifications,
dividends in-kind, and the like.
(iii) The term "OP Unit" shall have the meaning set forth in the
Amended and Restated Agreement of Limited Partnership of the
Operating Partnership (the "Limited Partnership Agreement").
(c) At the closing of the Merger or the acquisition of the LLC
Interests pursuant to the Acquisition Agreement, all reserves held by or on
behalf of any Property Owner as required by applicable lenders or otherwise
shall either be (i) returned to the applicable Property Owner, or (ii)
transferred to the Operating Partnership in which event a credit shall be
applied to increase the Consideration by the amount of such transferred
reserves.
(d) In exercising the Option, the Operating Partnership will use
reasonable commercial efforts to cooperate with the Property Owners (and current
direct and indirect owners of Optionor) to minimize any taxes, fees or
prepayment penalties payable in connection with such exercise or the assumption
or repayment of debt relating to the Property; provided that, except as
otherwise set forth in this Agreement, such cooperation shall not require the
Operating Partnership to unreasonably delay the closing under the Acquisition
Agreement or require the Operating Partnership to assume additional liabilities
or incur any material amount of out-of-pocket expenses.
5
(e) Pursuant to the Limited Partnership Agreement (as defined in
Section 3.2(b)(iii)), the OP Units are exchangeable into shares of the Common
Stock. It is currently anticipated that such shares of common stock will be
entitled to certain registration rights consistent with the Company's practice
at the time such OP Units are issued and subject to any restrictions or
agreements affecting such rights to which the Company or the Operating
Partnership is bound.
3.3 Withholding. Optionor shall execute upon the Merger or
conveyance of the LLC Interests such certificates or affidavits reasonably
necessary to document the inapplicability of any federal or state tax
withholding provisions, including without limitation those referred to in
Section 10.5 below. If Optionor fails to provide such certificates or
affidavits, the Operating Partnership may withhold a portion of the
Consideration as required by the Internal Revenue Code of 1986, as amended (the
"Code") or applicable state law.
3.4 Taxes. If the transactions contemplated by this Agreement and
the Acquisition Agreement are consummated, then the following shall apply:
(a) Acquisition is Treated as Contribution. If the Consideration
consists in whole or in part of OP Units, the merger or transfer, assignment and
exchange contemplated by this Agreement shall constitute a "Capital
Contribution" to the Operating Partnership pursuant to Article 4 of the
Partnership Agreement and is intended to be governed by Section 721(a) of the
Code, and the Operating Partnership and Optionor agree to report this
transaction consistent with such treatment. Any Merger shall be governed by
Section 708(b)(2)(A) of the Code.
(b) Allocation of Consideration. The Consideration shall be
allocated in a manner reasonably agreed upon by the Operating Partnership and
Optionor. The Operating Partnership and Optionor agree to (i) be bound by the
allocation, (ii) act in accordance with the allocation in the preparation of
financial statements and filing of all tax returns and in the course of any tax
audit, tax review or tax litigation relating thereto and (iii) take no position
and cause their affiliates to take no position inconsistent with the allocation
for income tax purposes.
(c) Cooperation and Tax Disputes. Optionor and the Operating
Partnership shall provide each other with such cooperation and information
relating to the Property or the LLC Interests as the parties reasonably may
request in (i) filing any tax return, amended tax return or claim for tax
refund, (ii) determining any liability for taxes or a right to a tax refund, or
(iii) conducting or defending any proceeding in respect of taxes. Any time after
the date hereof, the Operating Partnership shall promptly notify Optionor in
writing upon receipt by the Operating Partnership or any of its affiliates of
notice of (i) any pending or threatened tax audits or assessments with respect
to the Property or the LLC Interests and (ii) any pending or threatened federal,
state, local or foreign tax audits or assessments of the Operating Partnership
or any of its affiliates, in each case which may affect the liabilities for
taxes of Optionor with respect to any tax period ending on or before the date on
which the acquisition of the LLC Interests or Merger occurs (the "Closing
Date"). Optionor shall promptly notify the Operating Partnership in writing upon
receipt by Optionor of notice of any pending or threatened federal, state, local
or foreign tax audits or assessments relating to the income, properties or
operations of the Property or the LLC. Each of the Operating Partnership and
Optionor may participate at its own expense in the prosecution of any claim or
audit with respect to taxes attributable to any
6
taxable period ending on or before the Closing Date, provided, that Optionor
shall have the right to control the conduct of any such audit or proceeding or
portion thereof for which Optionor (or its direct or indirect owners, if
applicable) has acknowledged liability (except as a partner of the Operating
Partnership) for the payment of any additional tax liability, and the Operating
Partnership shall have the right to control any other audits and proceedings.
Notwithstanding the foregoing, neither the Operating Partnership nor Optionor
may settle or otherwise resolve any such claim, suit or proceeding which could
have an adverse tax effect on the other party or its direct or indirect owners
without the consent of the other party, such consent not to be unreasonably
withheld. Optionor and the Operating Partnership shall retain all tax returns,
schedules and work papers, and all material records and other documents relating
thereto, until the expiration of the statute of limitations (and, to the extent
notified by any party, any extensions thereof) of the taxable years to which
such tax returns and other documents relate and until the final determination of
any tax in respect of such years.
(d) Tax Allocations. With respect to the Property that is directly
or indirectly contributed to the Operating Partnership as provided in Section
(a) above, the Operating Partnership and Optionor agree that the Operating
Partnership shall use the "traditional method", as described in Regulations
Section 1.704-3(b), to make allocations of taxable income and loss among the
partners of the Operating Partnership.
(e) Transfer Taxes. The Operating Partnership shall pay the cost of
any documentary transfer taxes arising from the Merger or the sale of the LLC
Interests pursuant to the exercise by the Operating Partnership of the Option.
(f) Closing Costs and Prorations. All recording fees, escrow fees,
and other closing costs (except documentary transfer taxes as provided in
Section 3.5(e) above) shall be allocated according to custom and practice based
on the location of the Property. All income and expenses of the Property or the
LLC Interests shall be prorated according to custom and practice based on the
location of the Property.
(g) Survivability. This Section 3.4 shall survive the expiration or
earlier termination of this Agreement for a period of one year from the date of
such expiration or earlier termination.
4. Right of First Refusal. If Optionor receives an offer from an
unaffiliated third party to purchase the Property or the entire LLC Interests or
merge with Optionor (the "Offer") at any time during the "ROFR Term" (as
hereinafter defined), then, subject only to Optionee's right of first refusal
contain in this Section 4, Optionor shall have the right to convey the LLC
Interests to such third party or merge with such entity during the term of this
Agreement. If Optionor desires to accept the Offer, Optionor shall first give
written notice (the "ROFR Notice") thereof to the Operating Partnership (the
date the ROFR Notice is received by the Operating Partnership is referred to as
the "Notice Date"), which ROFR Notice shall include the proposed purchase price
and other material economic terms (collectively, the "Acquisition Terms") of the
proposed transfer of the LLC Interests or merger of Optionor with another
entity. The ROFR Notice shall also include a written statement of Optionor's
determination of the Cost Value of the LLC Interests. The Operating Partnership
shall have 30 days from the Notice Date to give written notice to Optionor (the
"OP Notice") of its election to merge with Optionor or
7
acquire the LLC Interests either (i) for the same purchase price and on
substantially the same other terms as set forth in the Offer, or (ii) pursuant
to the exercise of its Option under Section 2.1. If the Operating Partnership
fails to make such election on a timely basis, the Operating Partnership's
rights under this Agreement shall expire and be of no further force or effect;
provided, however, that such rights shall be revived and reinstated in favor of
the Operating Partnership in the event Optionor has not consummated the
transaction on terms which are generally as good or more favorable to Optionor
than the Acquisition Terms within 180 days following the Notice Date. The term
of the right of first refusal contained in this Section 4 shall commence upon
the consummation of the Public Offering and shall expire on the date this
Agreement terminates pursuant to Section 8 below (the "ROFR Term").
5. Permitted Activities by Property Owners; Property Management, Leasing
and Development. Subject to the terms of this Agreement, the Property Owners
have the right to own, entitle, finance, operate, lease, encumber, develop and
maintain the Property during the term of this Agreement; provided that during
the term of the Management Agreement and the Development Agreement (as
applicable), all such activities shall be conducted by or through the Manager
and Developer, respectively, in accordance with the Management Agreement and the
Development Agreement.
6. Marketing the Property for Sale. Optionor agrees not to affirmatively
market the Property or the LLC Interests for sale during the Option Term.
7. Termination of this Agreement. This Agreement shall terminate and be of
no further force or effect upon the earlier to occur of (i) the sale, transfer
or contribution (directly or indirectly) all the parcels comprising the Property
or the LLC Interests to any party (including the Operating Partnership) and the
merger of the Optionor with any other entity, in accordance with this Agreement,
(ii) the failure by the Operating Partnership to timely close on the acquisition
of the LLC Interests or effect the Merger after opening the Escrow, and (iii)
for the purposes of Section 4 above only, the later of the expiration of the
Option Term and the expiration or earlier termination of the Non-Competition
Agreement.
8. Procedure if Option Terminates
8.1 Notice of Termination. If the Option expires or is earlier
terminated pursuant to this Agreement, Optionor will provide notice of such
expiration or termination to the Operating Partnership (the "Option Termination
Notice"). The delivery of the Option Termination Notice shall not be a condition
precedent to the effectiveness of such expiration or earlier termination.
8.2 Verification of Termination. Upon receipt of the Option
Termination Notice, the Operating Partnership agrees that, if the Option is
terminated, it will execute, acknowledge and deliver to Optionor in recordable
form with appropriate authorization for recording, within ten days from request
therefore, a quitclaim deed or any other document reasonably requested by
Optionor or a title insurance company to verify the termination of the Option.
8
8.3 Right to Documents. Upon receipt of the Option Termination
Notice, the Operating Partnership shall forthwith deliver (or cause to be
delivered) to Optionor and shall be deemed to have assigned to Optionor (without
the execution of further documentation or instruments), any governmental
applications, permits, maps, plans, specifications and other documents in its
possession or that it has made or contracted to be made respecting the Property
or the LLC Interests, including without limitation all engineering reports,
surveys, soil tests, seismic studies, environmental reports, grading, flood
control and drainage plans, design renderings, market analyses, feasibility
studies, proposed tentative, parcel and final maps, and all correspondence with
governmental agencies and their personnel concerning the same.
8.4 Survivability. This Section 8 shall survive the expiration or
earlier termination of this Agreement.
9. Representations and Warranties. As of the date hereof, Optionor
represents and warrants to Optionee as follows:
9.1 Organization; Authority. Optionor is duly formed, validly
existing and in good standing (to the extent applicable) under the laws of its
jurisdiction of formation. Optionor has the legal capacity to enter this
Agreement.
9.2 Due Authorization. This Agreement and each agreement, document
and instrument executed and delivered by or on behalf of Optionor pursuant to
this Agreement constitutes, or when executed and delivered will constitute, the
legal, valid and binding obligation of Optionor, each enforceable against
Optionor in accordance with its terms.
9.3 Title to the Property. Optionor represents and warrants that (a)
it owns its interest in the LLC free and clear of all liens and encumbrances and
(b) it has not granted an option or right of first refusal to purchase the
Property or the LLC Interests or merge with any other entity to any party other
than the Operating Partnership.
9.4 Consents and Approvals. Optionor has full right, authority,
power and capacity, and, except as may be obtained in connection with the Public
Offering or the Formation Transactions, no consent, waiver, approval or
authorization of any governmental entity, lender or other third party is
required for Optionor: (i) to enter into this Agreement and each agreement,
document and instrument to be executed and delivered by or on behalf of Optionor
pursuant to this Agreement; and (ii) except as required by any applicable
financing agreement, to carry out the transactions contemplated hereby and
thereby.
9.5 Non-Foreign Status. Optionor is a United States person as
defined in the Code, and is, therefore, not subject to the provisions of the
Code relating to the withholding of sales proceeds to foreign persons, and is
not subject to any state withholding requirements.
9.6 No Brokers. Optionor has not employed or made any agreement with
any broker, finder or similar agent or any person or firm which will result in
the obligation of the Operating Partnership or any of its affiliates to pay any
finder's fee, brokerage fees or commission or similar payment in connection with
the transactions contemplated by this Agreement.
9
9.7 No Other Agreements to Sell. Except for the Option granted
hereby, Optionor has made no agreement and has no obligation (absolute or
contingent) to sell or option the Property or the LLC Interests or merge with
any other entity.
9.8 Assets. The LLC Interest is the sole asset of the Optionor other
than cash or cash equivalents.
9.9 Capital Contributions. All cash contributions and advances made
to or for the benefit of any Property Owner have been used in connection with
the acquisition, entitlement, development, leasing, financing, operation, repair
and maintenance of the Property. Optionor covenants that all cash contributions
and advances made to or for the benefit of any Property Owner after the date
hereof shall be used in connection with the acquisition, entitlement,
development, leasing, financing, operation, repair and maintenance of the
Property.
9.10 Indemnity. Optionor shall indemnify, defend and hold harmless
the Operating Partnership for all costs and expenses (including reasonable
attorneys' fees) incurred by the Operating Partnership as a result of a breach
of the representations contained in this Section 9.
10. Assignment. The Operating Partnership may not assign the Option
without Optionor's prior written consent, which consent may be conditioned,
withheld or delayed in Optionor's sole and absolute discretion, provided, that
the Operating Partnership may assign the Option without Optionor's consent to
(i) the Company, (ii) any direct or indirect controlled affiliate of the Company
or the Operating Partnership, or (iii) any entity into which the Operating
Partnership has merged or otherwise is the result of a business combination
directly involving the Operating Partnership.
11. Notices; Exercise of the Option. Any notice or demand which must or
may be given under this Agreement (including the exercise by the Operating
Partnership of the Option) or by law shall, except as otherwise provided, be in
writing and shall be deemed to have been given (i) when physically received by
personal delivery (which shall include the confirmed receipt of a telecopied
facsimile transmission), or (ii) three business days after being deposited in
the United States certified or registered mail, return receipt requested,
postage prepaid, or (iii) one business day after being deposited with a
nationally known commercial courier service providing next day delivery service
(such as Federal Express).
Any such notice shall be addressed and delivered or telecopied (a)
in the case of a notice to the Operating Partnership at the following address
and facsimile number:
Xxxxxxx Properties, L.P.
000 Xxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxx III
Xxxx Lammas
10
and (b), in the case of a notice to Optionor, to the address and facsimile
number set forth on the Signature Page hereof.
12. Dispute Resolution. The parties hereby agree that, in order to obtain
prompt and expeditious resolution of any disputes under this Agreement, each
claim, dispute or controversy of whatever nature, arising out of, in connection
with, or in relation to the interpretation, performance or breach of this
Agreement (or any other agreement contemplated by or related to this Agreement
or any other agreement between the parties), including without limitation any
claim based on contract, tort or statute, or the arbitrability of any claim
hereunder (an "Arbitrable Claim"), shall, subject to Section 12.1 below, be
settled by final and binding arbitration conducted in Los Angeles, California.
The arbitrability of any Arbitrable Claims under this Agreement shall be
resolved in accordance with a two-step dispute resolution process administered
by Judicial Arbitration & Mediation Services, Inc. ("JAMS") involving, first,
mediation before a retired judge from the JAMS panel, followed, if necessary, by
final and binding arbitration before the same, or if requested by either party,
another JAMS panelist. Such dispute resolution process shall be confidential and
shall be conducted in accordance with California Evidence Code Section 1119.
12.1 Mediation. In the event any Arbitrable Claim is not resolved by
an informal negotiation between the parties within fifteen (15) days after
either party receives written notice that a Arbitrable Claim exists, the matter
shall be referred to the Los Angeles, California office of JAMS, or any other
office agreed to by the parties, for an informal, non-binding mediation
consisting of one or more conferences between the parties in which a retired
judge will seek to guide the parties to a resolution of the Arbitrable Claims.
The parties shall select a mutually acceptable neutral arbitrator from among the
JAMS panel of mediators. In the event the parties cannot agree on a mediator,
the Administrator of JAMS will appoint a mediator. The mediation process shall
continue until the earliest to occur of the following: (i) the Arbitrable Claims
are resolved, (ii) the mediator makes a finding that there is no possibility of
resolution through mediation, or (iii) thirty (30) days have elapsed since the
Arbitrable Claim was first scheduled for mediation.
12.2 Arbitration. Should any Arbitrable Claims remain after the
completion of the mediation process described above, the parties agree to submit
all remaining Arbitrable Claims to final and binding arbitration administered by
JAMS in accordance with the then existing JAMS Arbitration Rules. Neither party
nor the arbitrator shall disclose the existence, content, or results of any
arbitration hereunder without the prior written consent of all parties. Except
as provided herein, the California Arbitration Act shall govern the
interpretation, enforcement and all proceedings pursuant to this subparagraph.
The arbitrator is without jurisdiction to apply any substantive law other than
the laws selected or otherwise expressly provided in this Agreement. The
arbitrator shall render an award and a written, reasoned opinion in support
thereof. Such award may include reasonable attorneys' fees to the prevailing
party. Judgment upon the award may be entered in any court having jurisdiction
thereof.
12.3 Costs. The parties shall bear their respective costs incurred
in connection with the procedures described in this Section 12, except that the
parties shall equally share the fees and expenses of the mediator or arbitrator
and the costs of the facility for the hearing.
11
12.4 Survivability. This dispute resolution process contained in
this Section 12 shall survive the expiration or earlier termination of this
Agreement. The parties expressly acknowledge that by signing this Agreement,
they are giving up their respective right to a jury trial.
13. Miscellaneous.
13.1 Amendment. This Agreement may not be amended except by an
instrument in writing signed by both Optionor and the Operating Partnership.
13.2 Entire Agreement; Counterparts; Applicable Law. This Agreement
(and to the extent applicable, the Non-Competition Agreement, Management
Agreement and Development Agreement) (a) constitutes the entire agreement and
supersedes all prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof, (b) may be
executed in one or more counterparts, each of which will be deemed an original
and all of which shall constitute but one and the same instrument and (c) shall
be governed in all respects by the laws of California without giving effect to
the conflict of law provisions thereof.
13.3 Severability. If any provision of this Agreement, or the
application thereof, is for any reason held to any extent to be invalid or
unenforceable, the remainder of this Agreement and application of such provision
to other persons or circumstances will be interpreted so as reasonably to effect
the intent of the parties hereto. The parties further agree to replace such void
or unenforceable provision of this Agreement with a valid and enforceable
provision that will achieve, to the extent possible, the economic, business and
other purposes of the void or unenforceable provision and to execute any
amendment, consent or agreement deemed necessary or desirable by the Operating
Partnership to effect such replacement.
13.4 Binding Effect. This Agreement shall be binding upon, and shall
be enforceable by and inure to the benefit of, Optionor and the Operating
Partnership and their respective successors and permitted assigns.
13.5 Equitable Remedies. The parties hereto agree that irreparable
damage would occur if any provision of this Agreement was not performed in
accordance with its specific terms or was otherwise breached. It is accordingly
agreed that the parties shall be entitled to an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the terms and
provisions hereof in any federal or state court located in the California (as to
which the parties agree to submit to jurisdiction for the purposes of such
action), this being in addition to any other remedy to which they are entitled
at law or in equity.
13.6 Recording. Subject to applicable consents required under any
financing related to the Property or the LLC Interests, Optionee shall have the
right to record a memorandum of this Agreement in the real property records of
the county in which the Property is situated. If Optionee records such a
memorandum, Optionee covenants and agrees to record the appropriate notice of
termination or cancellation upon the expiration or earlier termination of this
Agreement.
12
13.7 Books and Records. Optionor shall maintain a copy or other
evidence of this Agreement in its books and records relating to Fee Owner and
the Property.
13.8 Reliance. Each party to this Agreement acknowledges and agrees
that it is not relying on tax advice or other advice from the other party to
this Agreement, and that it has or will consult with its own advisors.
13.9 Survival. Except as otherwise provided in this Agreement, it is
the intention of the parties hereto that the provisions of this Agreement that
contemplate performance after the Closing Date and the obligations of the
parties not fully performed on the Closing Date shall survive the Closing Date
and shall not be deemed to be merged into or waived by the instruments executed
as of Closing Date.
(Signature Page Follows)
13
OPTION AGREEMENT
SIGNATURE PAGE
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as of this 11th day of November, 2002.
OPTIONOR
XXXXXXX XXXXXX PARTNERS -- PLAZA LAS XXXXXXX -- PHASE II,
a California partnership
By: XXXXXXX PARTNERS -- PASADENA, LTD.
a California limited partnership
Its: General Partner
By: XXXXXXX PARTNERS PC, LLC
a California limited liability company
Its: Managing General Partner
By: XXXXXXX PARTNERS SCS, INC.
a California corporation
Its: Manager
By: /s/ Xxxxxx X. Xxxxxxx III
---------------------------------
Xxxxxx X. Xxxxxxx III
President
OPTIONOR'S NOTICE ADDRESS
c/o Maguire Partners
000 Xxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
S-1
OPERATING PARTNERSHIP
Xxxxxxx Properties, L.P.,
a Maryland limited partnership
By: Xxxxxxx Properties, Inc.,
a Maryland corporation
Its: General Partner
By: /s/ Xxxxxx X. Xxxxx
----------------------------
Xxxxxx X. Xxxxx
Chief Financial Officer
S-2
