EXHIBIT 10.8
RECORDING REQUESTED BY )
WHEN RECORDED MAIL TO: )
)
)
Triple Net Properties, LLC )
0000 X. Xxxxxx Xxxxxx )
Xxxxx 000 )
Xxxxx Xxx, XX 00000 )
Attention: Xxxxxxx X. X'Xxxxxxx )
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Above Space for Recorder's Use
TENANTS IN COMMON AGREEMENT
This Tenants in Common Agreement ("Agreement") is made and effective as of
the date of recordation hereof, by and among the parties listed on Exhibit "A"
attached hereto and incorporated herein (each sometimes referred to as a "Tenant
in Common" or collectively as the "Tenants in Common"), with reference to the
facts set forth below.
RECITALS
A. The Tenants in Common will acquire real property and improvements
thereon, including a an office and technology center commonly known as
"Netpark.Tampabay Office and Technology Center" located in Tampa, Florida, as
more particularly described in Exhibit "B" attached hereto and incorporated
herein (the "Property").
B. The Tenants in Common desire to enter into this Agreement to provide
for the orderly administration of the Property and to delegate authority and
responsibility for the operation and management of the Property.
C. The Tenants in Common intend that the terms of this Agreement shall
comply in all material respects with the requirements for an advance ruling set
forth in Revenue Procedure 2002-22, 2002-14 IRB.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained in this Agreement and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
set forth below.
1. Nature of Relationship Between Co-Tenants.
1.1 Tenants in Common Relationship; No Partnership. The Tenants in
Common shall each own their respective interests in the Property (the
"Interests") as tenants-in-common. The Tenants in Common do not intend by this
Agreement to create a partnership or joint venture among themselves, but merely
to set forth the terms and conditions upon which each of them shall hold their
respective Interests. In addition, the Tenants in Common do not intend to create
a partnership or joint venture with the Manager (as defined in Section 2).
Therefore, each Tenant in Common hereby elects to be excluded from the
provisions of Subchapter K of Chapter 1 of the Internal Revenue Code of 1986, as
amended (the "Code"), with respect to the tenant in common ownership of the
Property. The exclusion elected by the Tenants in Common hereunder shall
commence with the execution of this Agreement.
1.2 Reporting as Direct Owners and Not a Partnership. Each Tenant in
Common hereby covenants and agrees to report on his federal and state income tax
returns all items of income, deduction and credits which result from his
Interests. All such reporting shall be consistent with the exclusion of the
Tenants in Common from Subchapter K of Chapter 1 of the Code, commencing with
the first taxable year following the execution of this
Agreement. Further, each Tenant in Common covenants and agrees not to notify the
Commissioner of Internal Revenue that he desires that Subchapter K of Chapter 1
of the Code apply to the Tenants in Common. Each Tenant in Common hereby agrees
to indemnify, protect, defend and hold the other Tenants in Common free and
harmless from all costs, liabilities, tax consequences and expenses (for
example, taxes, interest and penalties), including, without limitation,
attorneys' fees and costs, which may result from any Tenant in Common so
notifying the Commissioner in violation of this Agreement or otherwise taking a
contrary position on any tax return, report or other document.
1.3 Voting - General. The Tenants in Common must unanimously approve
the following: (i) hiring the Property Manager (as defined in Section 2), or any
substitute property manager, the Management Agreement (as defined in Section 2)
and all amendments and renewals thereof, and the negotiation of any other
management agreements; (ii) all leases and amendments thereof in accordance with
Section 2.6 of the Management Agreement; (iii) all financings and refinancing of
the Property; and (iv) sale of the Property (other than a sale pursuant to the
Purchase Option described in Section 11). All other decisions regarding the
Property will be made only with the approval of the Tenants in Common who own
more than 50% of the Property.
1.4 Voting - Property Manager and Affiliates. The Property Manager
and any affiliates who own Interests will not participate in any vote to
terminate the Management Agreement.
1.5 No Agency. No Tenant in Common is authorized to act as agent
for, to act on behalf of, or to do any act that will bind, any other Tenant in
Common, or to incur any obligations with respect to the Property.
2. Management. The Tenants in Common hereby unanimously consent to this
Agreement and the Management Agreement ("Management Agreement") with Triple Net
Properties Realty, Inc., a California corporation ("Property Manager"), and the
Property Manager's standard lease form. Pursuant to and as set forth in the
Management Agreement, the Property Manager shall be the sole and exclusive
manager of the Property to act on behalf of the Tenants in Common with respect
to the management, operation, maintenance and leasing of the Property, subject
to the right of each Tenant in Common to terminate the Management Agreement on
an annual basis as set forth in Section 10.1 thereof. All of the terms,
covenants and conditions of the Management Agreement are hereby incorporated as
if set forth in full herein. Neither (a) the death, retirement, removal,
withdrawal, termination or resignation of the Property Manager, (b) any
assignment for the benefit of creditors by or the adjudication of bankruptcy or
incompetency of the Property Manager, nor (c) the termination of the Management
Agreement shall cause the termination of this Agreement and this Agreement shall
remain in full force and effect notwithstanding any such events.
3. Income and Liabilities. Except as otherwise provided herein and in the
Management Agreement, each of the Tenants in Common shall be entitled to all
benefits and obligations of ownership of the Property in accordance with their
Interests. Accordingly, each of the Tenants in Common shall (a) be entitled to
all benefits of ownership of the Property, on a gross and not a net basis,
including, without limitation, all items of income and proceeds from sale or
refinance or condemnation, in proportion to their respective Interests, and (b)
bear, and shall be liable for, payment of all expenses of ownership of the
Property, on a gross and not a net basis, including by way of illustration, but
not limitation, all operating expenses and expenses of sale or refinancing or
condemnation, in proportion to their respective Interests, except for such
amounts as may be reasonably determined by the Manager to be retained for
reserves or improvements in accordance with the Management Agreement. The
Property Manager shall disburse to each of the Tenants in Common his pro rata
share of the revenue from the Property, after payment of all operating expenses,
debt service and such amounts as may be determined by the Property Manager to be
retained for reserves or improvements, within three (3) months from the date of
receipt by the Property Manager.
4. Co-Tenant's Obligations. The Tenants in Common each agree to perform
such acts as may be reasonably necessary to carry out the terms and conditions
of this Agreement, including, without limitation:
4.1 Documents. Executing documents required in connection with a
sale or refinancing of the Property in accordance with Section 5 below and such
additional documents as may be required under this Agreement or may be
reasonably required to effect the intent of the Tenants in Common with respect
to the Property or any loans encumbering the Property, provided that such
actions have been properly approved by the Tenants in Common in accordance with
Section 1.3.
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4.2 Additional Funds. Each Tenant in Common will be responsible for
a pro rata share (based on each Tenant in Common's respective Interests) of any
future cash needed in connection with the ownership, operation, management and
maintenance of the Property as determined by the Property Manager pursuant to
the Management Agreement. Without limiting the foregoing, each Tenant in Common
agrees that in the event any loan for the Property provides for recourse
liability to NNN Netpark, LLC, a Delaware limited liability company (the
"Company"), or any affiliate, and non-recourse liability to one or more of the
other Tenants in Common, and if the Company or any affiliate pays more than its
pro rata share of the liability related to the loan (as compared to its
ownership interest) as a result of such recourse liability ("Excess Payment"),
each of the Tenants in Common agree to reimburse the Company or any affiliate
for the Tenants in Common's pro rata share of such Excess Payment. To the extent
any Tenant in Common fails to pay any such funds within fifteen (15) days after
the Property Manager or Company delivers notice that such additional funds are
required, the Property Manager is hereby authorized and directed to withhold any
and all sums from such nonpaying Tenant(s) in Common until such funds have been
reserved or paid in full. Alternatively, in the Property Manager's discretion,
any other Tenant(s) in Common may advance such funds to the nonpaying Tenant(s)
in Common, who shall be liable on a fully recourse basis to repay the paying
Tenant(s) in Common the amount of any such advance plus interest thereon at the
rate of twelve percent (12%) per annum (but not more than the maximum rate
allowed by law) within thirty-one (31) days of funding the advance. If the
nonpaying Tenant in Common is a single member limited liability company, the
owner of the limited liability company will be personally liable to repay such
advance. In addition, the Property Manager is hereby authorized and directed to
pay the Tenant(s) in Common entitled to be repaid the sums loaned (with interest
thereon as provided above) out of future cash from operations or from sale or
refinancing of the Property or other distributions due the nonpaying Tenant(s)
in Common. The remedies against a nonpaying Tenant in Common provided for herein
are in addition to any other remedies that may otherwise be available, including
by way of illustration, but not limitation, the right to obtain a lien against
the Interests of the nonpaying Tenant(s) in Common to the extent allowed by law.
By executing this Agreement, each Tenant in Common agrees (i) that any such
short-term advance will be made on a fully recourse basis, (ii) if such Tenant
in Common is a single member limited liability company, such advance shall be
recourse to the single member of the limited liability company, and (iii) to
repay such advance within thirty-one (31) days of funding.
5. Sale or Encumbrance of Property.
5.1 Sale. In accordance with the Management Agreement, the Property
Manager shall be entitled to seek and negotiate the terms of financing for the
Property, including loans secured by the Property, and the sale of the Property
(or portions thereof) to third-party purchasers. In accordance with Section 1.3
hereof, any loan encumbering the Property and any sale of the Property shall be
subject to unanimous approval by the Tenants in Common, which approval shall be
communicated to the Property Manager by written response to a written request by
the Property Manager for approval. Any such written request of the Property
Manager shall be accompanied by summary thereof setting forth the material terms
of the proposed loan or sale. By their execution hereof, the Tenants in Common
confirm their approval of that certain loan made (or to be made immediately
after the execution of this Agreement) to acquire the Property by the lender
selected by the Manager (together with its successor and/or assigns to make a
loan secured by, among other things, a deed of trust on the Property.
5.2 Distribution of Loan or Sales Proceeds. Notwithstanding any
other provisions of this Agreement, proceeds of a loan or sale shall be
distributed at the closing of the loan or the sale as follows:
5.2.1 To the extent necessary, the proceeds shall first be
used to pay in full any loans encumbering title to the Property.
5.2.2 To the extent necessary, the proceeds shall next be used
to pay in full any unsecured loans made to the Tenants in Common with respect to
the Property.
5.2.3 The proceeds shall next be used to pay all outstanding
costs and expenses incurred in connection with the holding, marketing and sale
of the Property.
5.2.4 The proceeds shall next be used to pay all outstanding
fees and costs as set forth in the Management Agreement.
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5.2.5 Any proceeds remaining shall be paid to each Tenant in
Common in accordance with their respective Interests as provided in Section 3
above.
6. Possession. The Tenants in Common intend to lease the Property at all
times. Accordingly, no Tenant in Common shall have the right to occupy or use
the Property at any time during the term of this Agreement.
7. Transfer or Encumbrance. Subject to compliance with the specific terms
of this Agreement, applicable securities laws and compliance with the terms of
any loan (and associated loan agreement and documents) secured by the Property,
each Tenant in Common may sell, transfer, convey, pledge, encumber or
hypothecate the Interests (or any part thereof). Any such transferee shall take
such Interests subject to this Agreement and the transferor and transferee shall
execute and cause to be recorded an assignment and assumption agreement whereby
(i) transferor assigns to transferee all of his right, title and interest in and
to this Agreement and the Management Agreement; and (ii) transferee assumes and
agrees to perform faithfully and to be bound by all of the terms, covenants,
conditions, provisions and agreements of this Agreement and the Management
Agreement with respect to the Interests to be transferred. Upon execution and
recordation of such assumption agreement, the transferee shall become a party to
this Agreement without further action by the other Tenants in Common.
8. Right of Partition.
8.1 General. The Tenants in Common agree generally that any Tenant
in Common (and any of his successors-in-interest) shall have the right, while
this Agreement remains in effect, to file a complaint or institute any
proceeding at law or in equity to have the Property partitioned in accordance
with and to the extent provided by applicable law. The Tenants in Common
acknowledge and agree that partition of the Property may result in a forced sale
by all of the Tenants in Common. To avoid the inequity of a forced sale and the
potential adverse effect on the investment by the other Tenants in Common, the
Tenants in Common agree that, as a condition precedent to filing a partition
action, the Tenant in Common filing such action shall follow the buy-sell
procedure set forth in Section 10.
8.2 Lender Mandate. Notwithstanding the general provisions of
Section 8.1, if required by a lender as a condition of making a loan to the
Tenants in Common to acquire the Property or refinance any loan secured by the
Property, the Tenants in Common shall be deemed to have waived their right to
file a complaint or institute any proceeding at law or in equity to have the
Property partitioned in accordance with local law.
9. Bankruptcy. The Tenants in Common agree that the following shall
constitute an Event of Bankruptcy with respect to any Tenant in Common and his
Successors (as defined in Section 12.1): (a) if a receiver, liquidator or
trustee is appointed for any Tenant in Common; (b) if any Tenant in Common
becomes insolvent, makes an assignment for the benefit of creditors or admits in
writing its inability to pay its debts generally as they become due; (c) if any
petition for bankruptcy, reorganization, liquidation or arrangement pursuant to
federal bankruptcy law, or similar federal or state law shall be filed by or
against, consented to, or acquiesced in by, any Tenant in Common; provided,
however, if such appointment, adjudication, petition or proceeding was
involuntary and not consented to by such Tenant in Common then, upon the same
not being discharged, stayed or dismissed within thirty (30) days thereof. To
avoid the inequity of a forced sale and the potential adverse effect on the
investment of the other Tenants in Common, the Tenants in Common agree that, as
a condition precedent to entering into this Agreement, the Tenant in Common
causing such Event of Bankruptcy shall follow the buy-sell procedure set forth
in Section 10.
10. Buy-Sell Procedure. Upon the filing of a partition action in
accordance with Section 8.1 (to the extent such right has not been waived as
provided in Section 8.2) or the occurrence of an Event of Bankruptcy in
accordance with Section 9, the other Tenants in Common shall have the right to
purchase the interests of the Tenant in Common filing such action or the subject
of the Event of Bankruptcy (hereinafter, "Seller"). Seller shall make a written
offer ("Offer") to sell its Interests to the other Tenants in Common at a price
equal to (a) the Fair Market Value (as defined below) of the Seller's Interests
minus (b) (i) Seller's proportionate share of any fee or other amount that would
be payable to the Property Manager or any affiliates (including any real estate
commission) under the Management Agreement upon the sale of the Property at a
price equal to the Fair Market Value and (ii) selling, prepayment or other costs
that would apply in the event the Property was sold on the date of the offer.
The other
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Tenants in Common shall be entitled to purchase a portion of the selling Tenant
in Common's interest in proportion to their undivided interest in the Property.
In the event any Tenant in Common elects not to purchase its share of the
selling Tenant in Common's interest, the other Tenants in Common shall be
entitled to purchase additional interests based on their undivided interest in
the Property. "Fair Market Value" shall mean the fair market value of Seller's
undivided interest in the Property on the date the Offer is made as determined
in accordance with the procedures set forth below. The other Tenants in Common
shall have twenty (20) days after delivery of the Offer to accept the Offer. If
any or all of the other Tenants in Common ("Purchaser") accept the Offer, Seller
and Purchaser shall commence negotiation of the Fair Market Value within fifteen
(15) days after the Offer is accepted. If the parties do not agree, after good
faith negotiations, within ten (10) days, then each party shall submit to the
other a proposal containing the Fair Market Value the submitting party believes
to be correct ("Proposal"). If either party fails to timely submit a Proposal,
the other party's submitted proposal shall determine the Fair Market Value. If
both parties timely submit Proposals, then the Fair Market Value shall be
determined by final and binding arbitration in accordance with the procedures
set forth below. The parties shall meet within seven (7) days after delivery of
the last Proposal and make a good faith attempt to mutually appoint a MAI
certified real estate appraiser who shall have been active full-time over the
previous five (5) years in the appraisal of comparable properties located in the
County or City in which the Property is located to act as the arbitrator. If the
parties are unable to agree upon a single arbitrator, then the parties each
shall, within five (5) days after the meeting, each select an arbitrator that
meets the foregoing qualifications. The two (2) arbitrators so appointed shall,
within fifteen (15) days after their appointment, appoint a third arbitrator
meeting the foregoing qualifications. The determination of the arbitrator(s)
shall be limited solely to the issue of whether Seller's or Purchaser's Proposal
most closely approximates the fair market value. The decision of the single
arbitrator or of the arbitrator(s) shall be made within thirty (30) days after
the appointment of a single arbitrator or the third arbitrator, as applicable.
The arbitrator(s) shall have no authority to create an independent structure of
fair market value or prescribe or change any or several of the components or the
structure thereof; the sole decision to be made shall be which of the parties'
Proposals most closely corresponds to the fair market value of the Property. The
decision of the single arbitrator or majority of the three (3) arbitrators shall
be binding upon the parties. If either party fails to appoint an arbitrator
within the time period specified above, the arbitrator appointed by one of them
shall reach a decision which shall be binding upon the parties. The cost of the
arbitrators shall be paid equally by Seller and Purchaser. The arbitration shall
be conducted in Orange County, California, in accordance with California Code of
Civil Procedure sections 1280 et seq., as modified by this Agreement. The
parties agree that Federal Arbitration Act, Title 9 of the United States Code
shall not apply to any arbitration hereunder. The parties shall have no
discovery rights in connection with the arbitration. The decision of the
arbitrator(s) may be submitted to any court of competent jurisdiction by the
party designated in the decision. Such party shall submit to the superior court
a form of judgment incorporating the decision of the arbitrator(s), and such
judgment, when signed by a judge of the superior court, shall become final for
all purposes and shall be entered by the clerk of the court on the judgment roll
of the court. If one party refuses to arbitrate an arbitrable dispute and the
party demanding arbitration obtains a court order directing the other party to
arbitrate, the party demanding arbitration shall be entitled to all of its
reasonable attorneys' fees and costs in obtaining such order, regardless of
which party ultimately prevails in the matter. BY EXECUTING THIS AGREEMENT YOU
ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE
ARBITRATION OF DISPUTES PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY
CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE
DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY EXECUTING THIS AGREEMENT YOU ARE
GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL. IF YOU REFUSE TO SUBMIT
TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO
ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR
AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY.
11. Purchase Option. The Manager or its affiliates have the option to
purchase all or any portion of the Property at the Appraised Value (as defined
below) from one or more of the Tenants in Common (the "Purchase Option") (a)
beginning thirty-six (36) months after the date of this Agreement, or (b) at any
time, upon the failure of any Tenant in Common to renew the Management Agreement
in accordance with Section 10.1 thereof. If the Manager or its affiliates desire
to exercise the Purchase Option, the Manager or its affiliates (hereinafter, the
"Buyer") shall determine the fair market value of the Property, which shall be
computed (the "Appraised Value") in the manner described below by computing the
net proceeds that would have been distributable to the selling Tenants in Common
had the Property been sold for its Appraised Value and reducing this amount by
the sum of (x) one percent (1%) for imputed costs of sale that ordinarily would
be associated with the sale of the Property to a third
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party and (y) the Selling Commission (as defined in the Management Agreement).
The Buyer, in its sole discretion, will select an MAI certified appraiser with
at least five (5) years of experience in the city or county where the Property
is located to perform an MAI appraisal of the Property (the "Qualified
Appraiser"). The Qualified Appraiser shall not be an affiliate of the Buyer, the
Manager or any Tenant in Common, and will be paid by the Buyer. The Qualified
Appraiser shall notify the Buyer of its determination of the fair market value
of the entire Property without a discount for the tenant in common ownership
arrangement.
The Tenants in Common by unanimous vote shall have the right to approve or
reject the Appraised Value within thirty (30) days of receiving the notification
of Appraised Value. If they reject the Appraised Value within 30 days of
receiving the notification, the selling Tenants in Common shall have the right
to select their own Qualified Appraiser who shall be required to satisfy the
same requirements as described above. The average of the two appraisals shall
then be deemed the Appraised Value unless there is more than a five percent (5%)
difference between the highest and lowest Appraised Value, in which case a third
Qualified Appraiser (with the qualification described above) shall be selected
by mutual agreement of the first two appraisers and the average of the three
appraisals shall be deemed the Appraised Value. The Appraised Value will not be
less than ninety percent (90%) of the original purchase price for the Property,
unless otherwise approved by the Tenants in Common as provided above.
The Manager shall pay for the first appraisal and, if applicable, half of
the third appraisal. The Company and the Tenants in Common, on a pro rata basis
in accordance with their ownership of the Property, shall pay for the second
appraisal and, if applicable, half of the third appraisal.
If the Buyer is acquiring a portion of the Property, the purchase price
shall be the pro rata amount of the Appraised Value for the portion of the
Property being purchased. The Appraised Value as determined above shall be final
and binding on the parties if the Buyer elects, in its sole discretion, to close
the purchase.
Once the Appraised Value has been determined, the Buyer shall have up to
ninety (90) days in which to purchase the Property for all cash or such other
terms as may be approved by the selling Tenants in Common as described above. At
the closing pursuant to the Purchase Option, each of the parties shall bear
their share of all ordinary closing costs and expenses in accordance with local
real estate practice. If the Buyer does not complete the purchase of the
Property within the ninety (90) day period described above, that option shall
lapse unless extended by the parties as described above. If the Manager or an
affiliate elects to exercise the Purchase Option in the future, they shall be
required to begin again the process of selecting the Qualified Appraiser to
determine the Appraised Value. There are no limits on the number of times the
Manager or its affiliates may seek to exercise the Purchase Option. The Manager
will be entitled to the Selling Commission upon a sale pursuant to the Purchase
Option.
The Buyer shall cooperate, at no cost or expense, with any of the selling
Tenants in Common who wish to structure the sale of their Interests as a
tax-deferred exchange pursuant to Section 1031 of the Code. The Buyer shall,
upon direction of the Tenants in Common electing to exchange, consent to the
assignment of their interests in the Purchase Option to a qualified intermediary
of their choosing and the payment of their net proceeds into customary exchange
escrow accounts.
12. General Provisions.
12.1 Mutuality; Reciprocity; Runs With the Land. All provisions,
conditions, covenants, restrictions, obligations and agreements contained herein
or in the Management Agreement are made for the direct, mutual and reciprocal
benefit of each and every part of the Property; shall be binding upon and shall
inure to the benefit of each of the Tenants in Common and their respective
heirs, executors, administrators, successors, assigns, devisees,
representatives, lessees and all other persons acquiring any undivided interest
in the Property or any portion thereof whether by operation of law or any manner
whatsoever (collectively, "Successors"); shall create mutual, equitable
servitudes and burdens upon the undivided interest in the Property of each
Tenant in Common in favor of the interest of every other Tenant in Common; shall
create reciprocal rights and obligations between the respective Tenants in
Common, their interests in the Property, and their Successors; and shall, as to
each of the Tenants in Common and their Successors operate as covenants running
with the land, for the benefit of the other Tenants in Common pursuant to
applicable law, including, but not limited to, the laws of the State of Florida.
It is expressly agreed that each covenant contained herein or in the Management
Agreement (a) is for the benefit of and
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is a burden upon the undivided interests in the Property of each of the Tenants
in Common, (b) runs with the undivided interest in the Property of each Tenant
in Common and (c) benefits and is binding upon each Successor owner during its
ownership of any undivided interest in the Property, and each owner having any
interest therein derived in any manner through any Tenant in Common or
Successor. Every person or entity who now or hereafter owns or acquires any
right, title or interest in or to any portion of the Property is and shall be
conclusively deemed to have consented and agreed to every restriction,
provision, covenant, right and limitation contained herein or in the Management
Agreement, whether or not such person or entity expressly assumes such
obligations or whether or not any reference to this Agreement or the Management
Agreement is contained in the instrument conveying such interest in the Property
to such person or entity. The Tenants in Common agree that, subject to the
restrictions on transfer contained herein, any Successor shall become a party to
this Agreement and the Management Agreement upon acquisition of an undivided
interest in the Property as if such person was a Tenant in Common initially
executing this Agreement.
12.2 Binding Arbitration. Any dispute, claim or controversy arising
out of or related to this Agreement, the breach hereof, the termination,
enforcement, interpretation or validity hereof, or an investment in the
Interests shall be settled by arbitration in Orange County, California, in
accordance with the rules of The American Arbitration Association, and judgment
entered upon the award rendered may be enforced by appropriate judicial action
pursuant to the California Code of Civil Procedure. The arbitration panel shall
consist of one (1) member, which shall be the mediator if mediation has occurred
or shall be a person agreed to by each party to the dispute within thirty (30)
days following notice by one party that he desires that a matter be arbitrated.
If there was no mediation and the parties are unable within such thirty (30) day
period to agree upon an arbitrator, then the panel shall be one (1) arbitrator
selected by the Orange County office of The American Arbitration Association,
which arbitrator shall be experienced in the area of real estate and limited
liability companies and who shall be knowledgeable with respect to the subject
matter area of the dispute. The losing party shall bear any fees and expenses of
the arbitrator, other tribunal fees and expenses, reasonable attorney's fees of
both parties, any costs of producing witnesses and any other reasonable costs or
expenses incurred by him or the prevailing party or such costs shall be
allocated by the arbitrator. The arbitration panel shall render a decision
within thirty (30) days following the close of presentation by the parties of
their cases and any rebuttal. The parties shall agree within thirty (30) days
following selection of the arbitrator to any prehearing procedures or further
procedures necessary for the arbitration to proceed, including interrogatories
or other discovery.
12.3 Attorneys' Fees. If any arbitration, action or proceeding is
instituted between all or any of the Tenants in Common arising from or related
to or with this Agreement, the Tenant in Common or Tenants in Common prevailing
in such action or arbitration shall be entitled to recover from the other Tenant
in Common or Tenants in Common all of his or their costs of action, proceeding
or arbitration, including, without limitation, reasonable attorneys' fees and
costs as fixed by the court or arbitrator therein.
12.4 Entire Agreement. This Agreement, together with the Management
Agreement, constitutes the entire agreement between the parties hereto
pertaining to the subject matter hereof and all prior and contemporaneous
agreements, representations, negotiations and understandings of the parties
hereto, oral or written, are hereby superseded and merged herein.
12.5 Governing Law; Venue. This Agreement shall be governed by and
construed under the internal laws of the State of Florida without regard to
choice of law rules. Any action arising out of or relating to this Agreement
shall be subject to binding arbitration in Orange County, California, in
accordance with Section 12.2.
12.6 Modification. No modification, waiver, amendment, discharge or
change of this Agreement shall be valid unless the same is in writing and signed
by the party against which the enforcement of such modification, waiver,
amendment, discharge or change is or may be sought.
12.7 Notice and Payments. Any notice to be given or other document
or payment to be delivered by any party to any other party hereunder may be
delivered in person, or may be deposited in the United States mail, duly
certified or registered, return receipt requested, with postage prepaid, or by
Federal Express or other similar overnight delivery service, and addressed to
the Tenants in Common at the addresses specified in Exhibit "A" hereto. Any
party hereto may from time to time, by written notice to the others, designate a
different
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address which shall be substituted for the one above specified. Unless otherwise
specifically provided for herein, all notices, payments, demands or other
communications given hereunder shall be in writing and shall be deemed to have
been duly given and received (a) upon personal delivery, or (b) as of the third
business day after mailing by United States registered or certified mail, return
receipt requested, postage prepaid, addressed as set forth above, or (c) the
immediately succeeding business day after deposit with Federal Express or other
similar overnight delivery system.
12.8 Successors and Assigns. All provisions of this Agreement shall
inure to the benefit of and shall be binding upon the Successors of the parties
hereto.
12.9 Term. This Agreement shall commence as of the date of
recordation and shall terminate at such time as the Tenants in Common or their
successors-in-interest or assigns no longer own the Property as
tenants-in-common. In no event shall this Agreement continue beyond December 31,
2033. The bankruptcy, death, dissolution, liquidation, termination, incapacity
or incompetence of a Tenant in Common shall not cause the termination of, or
have any other effect on, this Agreement.
12.10 Waivers. No act of any Tenant in Common shall be construed to
be a waiver of any provision of this Agreement, unless such waiver is in writing
and signed by the Tenant in Common affected. Any Tenant in Common hereto may
specifically waive any breach of this Agreement by any other Tenant in Common,
but no such waiver shall constitute a continuing waiver of similar or other
breaches.
12.11 Counterparts. This Agreement may be executed in counterparts,
each of which, when taken together, shall be deemed one fully executed original.
12.12 Severability. If any portion of this Agreement shall become
illegal, null or void or against public policy, for any reason, or shall be held
by any court of competent jurisdiction to be illegal, null or void or against
public policy, the remaining portions of this Agreement shall not be affected
thereby and shall remain in full force and effect to the fullest extent
permissible by law.
12.13 Securities Laws. THE UNDIVIDED INTERESTS IN THE PROPERTY HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, NOR APPROVED OR
DISAPPROVED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION, OR BY THE
SECURITIES REGULATORY AUTHORITY OF ANY STATE, NOR HAS ANY COMMISSION OR
AUTHORITY PASSED UPON OR ENDORSED THE MERITS OF THE OFFERING OR THE ACCURACY OR
ADEQUACY OF ANY DISCLOSURE MADE IN CONNECTION THEREWITH. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE. THE PROJECTS MAY NOT BE RESOLD WITHOUT
REGISTRATION UNDER THE SECURITIES ACT OF 1933 AND APPLICABLE STATE SECURITIES
LAWS OR EXEMPTION THEREFROM.
12.14 Time is of the Essence. Time is of the essence of each and
every provision of this Agreement.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]
8
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth above.
TENANTS IN COMMON:
NNN NETPARK, LLC,
a Delaware limited liability company
By: TRIPLE NET PROPERTIES, LLC, a Virginia limited
liability company, its Manager
By: ____________________________________
NNN Netpark [ ], LLC, a Delaware limited liability
company
By: NNN Netpark Member [ ], a Delaware
limited liability company
Its: Sole Member
By: ___________________________
Its: Sole Member
9
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On __________________, 2003, before me, _________________________________,
personally appeared _________________________________, personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person whose
name is subscribed to the within instrument and acknowledged to me that he
executed the same in his authorized capacity, and that by his signature on the
instrument the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
________________________________________
Notary Public
STATE OF ____________________ )
) ss:
CITY/COUNTY OF ______________ )
On ____________________, 2003, before me, _______________________________,
personally appeared _________________________________________, personally known
to me (or proved to me on the basis of satisfactory evidence) to be the persons
whose name is subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity, and that by
his/her/their signature on the instrument the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
________________________________________
Notary Public
10
EXHIBIT "A"
Tenants in Common and Percentage Interests
Tenants in Common Percentage Interest
----------------- -------------------
NNN Netpark, LLC __%
0000 X. Xxxxxx Xxxxxx
Xxxxx 000
Xxxxx Xxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx
NNN Netpark [ ], LLC __%
[address]
