EXHIBIT 10.13
OPTION AGREEMENT
(Water's Edge)
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 -- PV Investor
Partnership, L.P., a California limited partnership ("Optionor").
RECITALS
A. Optionor owns an interest in Playa Vista - Water's Edge, LLC, a
Delaware limited liability company (the "Fee 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 acquire,
without becoming obligated to acquire, all of Optionor's right, title and
interest in its twelve and one-half percent (12.5%) membership interest in the
Fee Owner (the "Percentage Interest"), including, without limitation, all of
Optionor's voting rights and interests in the capital, profits and losses
arising out of such Percentage Interest (such, right, title and interest
hereinafter collectively referred to as the "Interests"), each on the terms and
subject to the conditions set forth herein. As used herein, "Option" means the
option to acquire the 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. 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.
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 acquire all of Optionor's right, title and interest in the Interests
free and clear of any encumbrances on the Interests and subject to all "Project
Indebtedness" (as hereinafter defined) and other matters of record for the
Property, 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.
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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 after the
consummation of the Public Offering, unless earlier terminated as described in
Section 6 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 organizational
documents for the Fee Owner, the "Project Indebtedness", and the "Entity
Indebtedness" (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 Project Indebtedness and Entity Indebtedness.
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 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 and following
consent of the Fee Owner (which Optionor agrees to use its commercially
reasonable efforts to obtain), 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 agents, and
further agrees to indemnify, defend and hold Optionor and Fee Owner 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, Fee Owner, the
Interests and the Property which are in Optionor's possession and control.
Optionor will provide (or cause to be provided) a report of the status of the
Interests and, to the extent within Optionor's possession and control,
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the Property, on a quarterly basis, which report shall include unaudited
financials and a current estimate of the contributions and advances made by or
on behalf of Optionor to the Fee Owner.
3. Process
3.1 Acquisition Agreement. 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, the parties shall execute a mutually acceptable
acquisition agreement containing terms and conditions customary in similar "as
is" transactions and in any case consistent with this Agreement (an "Acquisition
Agreement"). 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.
3.2 Consideration.
(a) The consideration to be paid by the Operating Partnership for
the Interests (the "Consideration") pursuant to an exercise of the Option under
Section 2.1 shall be equal to the total of (i) the sum, without duplication, of
all capital contributed and advances made to or for the benefit of Fee Owner by
Optionor, Xxxxxxx or any affiliate of Xxxxxxx, provided such contributions and
advances were used for the benefit of the Property and Optionor provides
evidence of such contributions and advances reasonably acceptable to the
Operating Partnership to support Optionor's determination of such contributions
and advances; and (ii) 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 Fee Owner by Optionor, Xxxxxxx, or
any affiliate of Xxxxxxx, net of actual distributions made by Fee Owner on
account of such capital contributions, and (y) the aggregate principal amount of
all advances made to or for the benefit of Fee Owner with respect to the
Property by Optionor, Xxxxxxx, or any affiliate of Xxxxxxx, net of actual
repayments on account of such advances by or on behalf of Fee Owner, 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 Fee
Owner on account of each such capital contribution or advance.
(b) Upon the closing under the Acquisition Agreement, the
Consideration shall be payable by the Operating Partnership first through the
assumption of all Entity 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 Entity 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 Entity 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.
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(i) "Project Indebtedness" means any financings or other
arrangements entered into by or on behalf of Fee Owner
relating to the Property as reflected on 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 September 30,
2002, Order No. 1211835-27. The term "Project Indebtedness"
shall also include any financing or other arrangement entered
into by or on behalf of Fee 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 Project Indebtedness. The transfer of the
Interests as contemplated by this Agreement shall be subject
to any Project Indebtedness.
(ii) "Entity Indebtedness" means any financings or other
arrangements entered into by Optionor, relating to the
Interests and secured by a pledge of the Interests or which
otherwise encumbers the Interest, but only to the extent the
aggregate of all Entity Indebtedness (plus any related
prepayment, assumption or other fees, costs and penalties)
does not exceed the Consideration. Any financings or other
arrangements encumbering the Interests in excess 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 Project Indebtedness and
the Entity Indebtedness and shall provide copies of any
written default notices Optionor may receive from the lenders
of such indebtedness.
(iii) 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.
(iv) 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 acquisition of the Interests pursuant to
the Acquisition Agreement, all reserves held by or for the benefit of Optionor
as required by applicable lenders or otherwise shall either be (i) returned to
Optionor, or (ii) transferred to or for the benefit of 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 Optionor (and current direct and
indirect owners of Optionor) to minimize any taxes, fees or prepayment penalties
payable in connection with such
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exercise or the assumption or repayment of debt relating to the Interests;
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.
(e) Pursuant to the Limited Partnership Agreement (as defined in
Section 3.2(b)(iv)), 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 conveyance of the
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 8.5 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 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.
(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 Interests (and to the extent within Optionor's possession and
control, the Fee Owner and the Property) 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
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
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the liabilities for taxes of Optionor with respect to any tax period ending on
or before the date on which the acquisition of the Interests 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 Optionor and the Fee Owner. 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
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 Interests that are 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 sale of the Interests pursuant
to the exercise by the Operating Partnership of the Option.
(f) Closing Costs and Prorations. Any 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
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 Interests (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 Interests to such third party 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
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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
Interests. The ROFR Notice shall also include a written statement of Optionor's
determination of the Consideration for the 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 acquire the 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 6 below (the "ROFR
Term").
5. Marketing the Interests for Sale. Optionor agrees not to affirmatively
market the Interests for sale during the Option Term.
6. 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) of all the parcels comprising the
Property or the Interests to any party (including the Operating Partnership) in
accordance with this Agreement, (ii) the failure by the Operating Partnership to
timely close on the acquisition of the Interests following delivery of the
Exercise Notice or OP Notice, 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.
7. Procedure if Option Terminates
7.1 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.
7.2 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.
7.3 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
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or the 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.
7.4 Survival. This Section 8 shall survive the expiration or earlier
termination of this Agreement.
8. Representations and Warranties. As of the date hereof, Optionor
represents and warrants to Optionee as follows:
8.1 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.
8.2 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.
8.3 Title to the Interests. Except as set forth on Schedule 8.3
attached hereto, Optionor represents and warrants that (a) it owns the Interests
free and clear of all liens and encumbrances and (b) it has not granted an
option or right of first refusal to purchase the Interests to any party other
than the Operating Partnership.
8.4 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 or as otherwise contemplated in Section
1.4 above, 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.
8.5 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.
8.6 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.
8.7 No Other Agreements to Sell. Except for the Option granted
hereby, and except pursuant to the terms of the organizational documents of the
Fee Owner, Optionor has made no agreement and has no obligation (absolute or
contingent) to sell or option the Interests.
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8.8 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 8.
9. 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.
10. 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
and (b), in the case of a notice to Optionor, to the address and facsimile
number set forth on the Signature Page hereof.
11. 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 11.1 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,
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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.
11.1 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.
11.2 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.
11.3 Costs. The parties shall bear their respective costs incurred
in connection with the procedures described in this Section 11, 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.
11.4 Survivability. This dispute resolution process contained in
this Section 11 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.
12. Miscellaneous.
12.1 Amendment. This Agreement may not be amended except by an
instrument in writing signed by both Optionor and the Operating Partnership.
12.2 Entire Agreement; Counterparts; Applicable Law. This Agreement
(and to the extent applicable the Non-Competition Agreement) (a) constitutes the
entire agreement and supersedes all prior agreements and understandings, both
written and oral, between the
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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.
12.3 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.
12.4 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.
12.5 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.
12.6 Recording. Subject to applicable consents required under any
financing related to the Property or the 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.
12.7 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.
12.8 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.
12.9 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)
11
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 PARTNERS -- PV INVESTOR PARTNERSHIP, L.P.
a California limited partnership
By: MP -- PLAYA VISTA INVESTORS PARTNERSHIP GP, LLC
a California limited liability company
Its: General Partner
By: XXXXXXX PARTNERS SCS, INC.
a California corporation
Its: Managing Member
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
