EXHIBIT 10.45
AGREEMENT FOR PURCHASE AND SALE OF MEMBERSHIP INTEREST
AND JOINT ESCROW INSTRUCTIONS
This AGREEMENT FOR PURCHASE AND SALE OF MEMBERSHIP INTEREST AND
JOINT ESCROW INSTRUCTIONS ("Agreement") is made and entered into as of May 28
2003, by and between BANKAMERICA REALTY SERVICES, INC., a Delaware corporation
("Seller"), and XXXXXXX PARTNERS -- GLENDALE, LLC, a California limited
liability company ("Buyer"). Capitalized terms in this Agreement shall have the
meanings as defined herein, or, if not defined herein, shall have the meanings
given such terms in the Operating Agreement (as defined in Recital A below).
RECITALS
A. Buyer and Seller entered into that certain Amended and Restated
Operating Agreement dated as of March 5, 1996, as amended by that certain
Amendment to Amended and Restated Limited Liability Operating Agreement dated as
of December 11, 2000 (as amended, the "Operating Agreement"), concerning the
establishment and operation of Xxxxxxx Partners-Glendale Center, LLC, a
California limited liability company (the "Company"). Buyer and Seller are the
sole members of the Company.
X. Xxxxxxx Partners-611 N. Brand LLC, a Delaware limited liability
company ("Xxxxxxx 611 "), owns and operates an office building project commonly
known as "Glendale Center" situated on Brand Boulevard in the City of Glendale,
State of California (the "Project"), as more particularly depicted on the Site
Plan attached hereto as Exhibit A (the "Site Plan"). Company is the sole member
of Xxxxxxx 611.
C. The parties desire to enter into this Agreement to set forth the
terms and conditions on which Seller desires to sell to Buyer and Buyer desires
to purchase from Seller all of Seller's Membership Interest in the Company,
along with certain other matters related to the foregoing.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. ACQUISITION OF SELLER'S MEMBERSHIP INTEREST IN THE COMPANY. Buyer
hereby agrees to purchase from Seller and Seller hereby agrees to sell to Buyer,
all of Seller's right, title and interest in and to all of Seller's Membership
Interest in the Company under the operating Agreement, in accordance with and
subject to the terms and provisions of this Agreement.
1.1 Purchase Price. The purchase price for Seller's Membership
Interest in the Company shall be Fifty-Three Million Dollars ($53,000,000) (the
"Purchase Price"). The Purchase Price shall be payable as follows:
1.1.1 Deposit. Within forty-eight (48) hours after execution
of this Agreement, Buyer shall deposit or cause to be deposited with
Escrow Holder the sum of Two Hundred Fifty Thousand Dollars ($250,000)
(the "Deposit") in cash pursuant to Section 1.1.3 below. The Deposit
shall be released to Seller immediately upon payment to Escrow Holder
by Buyer and shall be non-refundable to Buyer, except upon a default by
Seller or as otherwise provided herein. Seller shall invest the Deposit
in a federally insured interest bearing account of Seller's choice with
interest accruing at the rate of one percent (1%) per annum for the
benefit of Buyer. All interest accruing on the Deposit during the term
of this Agreement shall be added to,
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and considered as a part of, the Deposit. The Deposit shall be applied
to the Purchase Price at the Close of Escrow (as defined below).
1.1.2 Purchase Price Balance. At least one (1) business day
prior to the Close of Escrow, Buyer shall deposit with Escrow Holder in
cash or cash equivalent pursuant to Section 1.1.3 below, the sum of (i)
the Purchase Price, (ii) less the aggregate sum of the Deposit and the
Closing Extension Deposit (as defined below) (if made by Buyer) (the
"Purchase Price Balance"), and (iii) plus Buyer's Escrow charges and
all other cash charges payable in accordance with this Agreement.
1.1.3 Form of Payment. All money payable under this Agreement,
including, without limitation, the Deposit, the Closing Extension
Deposit, the Purchase Price Balance, or otherwise, shall be paid in
cash or by wire transfer of immediately available federal funds of the
United States.
1.2 Escrow. The parties shall open an escrow (the "Escrow") with
Commerce Escrow Company ("Escrow Holder") at 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000,
Xxx Xxxxxxx, Xxxxxxxxxx 00000, Attention: Xx. Xxxx Xxxxxx, to consummate the
transfer of Seller's Membership Interest in the Company to Buyer. The parties
agree to execute, deliver and be bound by any reasonable and customary
supplemental escrow instructions of Escrow Holder or other instruments that may
reasonably be required by Escrow Holder in order to consummate the transaction
contemplated by this Agreement. Any such supplemental instructions shall not
conflict with, amend or supercede any portions of this Agreement. If there is
any conflict or inconsistency between such supplemental instructions and this
Agreement, this Agreement shall control.
1.3 Closing. The "Closing Date" shall mean on or before July 15,
2003 (as such date may be extended until October 31, 2003 in accordance with
this Section 1.3) and the "Close of Escrow" shall mean the date that Escrow
Holder delivers to Seller the Purchase Price and all other amounts payable to
Seller in accordance with this Agreement. Provided that Buyer is not in default
under this Agreement, Buyer shall have the right to extend the Closing Date
("Extension Option") until October 31, 2003 by delivering to Escrow Holder in
cash or cash equivalent pursuant to Section 1.1.3 an extension payment ("Closing
Extension Deposit") in the amount of Seventy-Five Thousand Dollars ($75,000) on
or before July 15, 2003 unless this Agreement is terminated pursuant to Section
1.10. The Closing Date shall be deemed extended until October 31, 2003 upon
Buyer's payment of the Closing Extension Deposit. The Closing Extension Deposit
shall be released to Seller immediately upon payment to Escrow Holder by Buyer
and shall be non-refundable to Buyer, except upon a default by Seller or as
otherwise provided herein. The Closing Extension Deposit shall be applied to the
Purchase Price at the Close of Escrow.
Notwithstanding any contrary provision hereof, Buyer shall
have the right to accelerate the Closing Date to any date prior to the
applicable Closing Date set forth above, by delivery of written notice not less
than five (5) business days prior the accelerated Closing Date designated by
Buyer. If Buyer designates an early Closing Date pursuant to this paragraph,
Buyer shall have the right to postpone the Closing Date one or more times by
subsequent written notice to Seller, provided that the Closing Date shall not be
later than July 15, 2003 (or October 31, 2003, as applicable if Buyer validly
exercises the Extension Option).
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1.4 Conditions Precedent to the Close of Escrow.
1.4.1 Conditions to Buyer's Obligations. Buyer's obligations
with respect to the Close of Escrow are subject to the satisfaction (or written
waiver by Buyer) of the following conditions precedent:,
1.4.1.1 As of the Closing Date, Seller shall have performed
in all material respects each of the obligations required to be performed by
Seller under this Agreement.
1.4.1.2 All representations and warranties made by Seller
under this Agreement shall be true and correct in all material respects as of
the Closing Date.
1.4.1.3 There shall have been no material adverse change to
the physical condition of the Project resulting from a damage, casualty or
condemnation subsequent to the date of this Agreement.
1.4.1.4 The condition described in Section 1.4.2.4 below
shall have been satisfied.
1.4.1.5 Buyer shall have received an estoppel certificate
from Bank of America NT & SA ("B of A") with respect to the Office Lease dated
March 5, 1996, between Xxxxxxx 611, as successor landlord, and B of A, as
tenant, with respect to space in the Project (the "B of A Lease") in the form of
Exhibit B attached to this Agreement.
1.4.2 Conditions to Seller's Obligations. Seller's obligations
with respect to the Close of Escrow are subject to the satisfaction (or written
waiver by Seller) of the following conditions precedent:
1.4.2.1 As of the Closing Date, Buyer shall have performed
in all material respects each of the obligations required to be performed by
Buyer under this Agreement.
1.4.2.2 All representations and warranties made by Buyer
under this Agreement shall be true and correct in all material respects as of
the Closing Date.
1.4.2.3 If required in order to consummate the transaction
evidenced by this Agreement, Buyer shall have obtained the consents of (a)
Credit Suisse First Boston Mortgage Company LLC ("Credit Suisse") under the
existing loan documents ("Credit Suisse Loan Documents") evidencing the
$37,000,000 loan from Credit Xxxxxx xx Xxxxxxx 000, (x) Disney Enterprises, Inc.
("Disney") under that certain Glendale Center Distribution Agreement ("Disney
Distribution Agreement") dated as of March 1, 1996 and (c) any other
third-parties to the transfer of Seller's Membership Interest in the Company to
Buyer pursuant to this Agreement.
1.4.2.4 Xxxxxxx 611 and B of A shall have executed an
amendment to the B of A Lease in the form attached hereto as Exhibit C (the
"Amendment to Lease") that provides for the following: (a) Effective on the
Closing Date (as defined in the Agreement) until October 31, 2010, Xxxxxxx 611
shall provide B of A with 1224 unreserved parking passes and 4 reserved parking
stalls at the Project and B of A shall pay to Xxxxxxx 611 an amount equal to
$960,000 per annum in parking rent ("Parking Rent") for these parking passes.
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Such Parking Rent shall increase annually by five percent (5%) commencing on the
first anniversary of the Closing Date and each year thereafter; (b) Commencing
on November 1, 2010 until April 30, 2013, Xxxxxxx 611 shall provide B of A with
805 unreserved parking passes (or 9 parking passes per 1,000 square feet of
space leased) and 4 reserved parking stalls at the Project and B of A shall pay
to Xxxxxxx 611 an amount equal to $884,000 per annum in Parking Rent for these
parking passes. Such Parking Rent shall increase annually by five percent (5%)
commencing on November 1 of the following year and each year thereafter; and (c)
Commencing on May 1, 2013 until May 31, 2013, Xxxxxxx 611 shall provide B of A
with 175 unreserved parking passes (or 9 stalls for every 1000 square feet of
space leased) and 4 reserved parking stalls at the Project and B of A shall pay
to Xxxxxxx 611 an amount equal to $18,500 in Parking Rent for these parking
passes.
1.4.2.5 Buyer and Seller shall have executed concurrently
with this Agreement an amendment to the Operating Agreement in the form attached
hereto as Exhibit D (the "Amendment to Operating Agreement") that provides for
the waiver, effective upon execution of this Agreement, of all of Buyer's first
rights of negotiation, offer and refusal and rights of purchase and sale under
the Operating Agreement in connection with any proposed sale of the Project or
Seller's Membership Interest in the Company as set forth in Sections 9.5(c),
9.6(a), 9.6(b), 20.3, 20.4, 22.1(e) and 22.6 of the Operating Agreement if Buyer
fails for any reason to acquire Seller's Membership Interest in the Company and
pay to Seller the Purchase Price and all other amounts payable to Seller in
accordance with this Agreement on or before the Closing Date, except due to a
Seller default after notice and expiration of all applicable cure periods under
this Agreement or a failure of a condition that benefits Buyer under Section
1.4.1 of this Agreement.
1.4.2.6 Seller's executive committee shall have approved
this Agreement, which shall be deemed satisfied by Seller's execution of this
Agreement.
1.4.3 Covenants of Buyer and Seller. Buyer and Seller agree to
execute the document described in Section 1.4.2.5. Buyer and Seller agree to
cause Xxxxxxx 611 to execute the document described in Section 1.4.2.4. Seller
agrees to cause B of A to execute the documents described in Sections 1.4.1.5
and 1.4.2.4.
1.5 Closing Documents and Materials. The parties shall deposit
the following with Escrow Holder prior to the Close of Escrow:
1.5.1 Buyer shall deposit:
1.5.1.1 The Purchase Price Balance and all other
amounts payable by Buyer in accordance with this
Agreement;
1.5.1.2 The Amendment to Lease duly executed by
Xxxxxxx 611;
1.5.1.3 Amendment to Operating Agreement duly
executed by Buyer; and
1.5.1.4 An Assignment and Assumption Agreement in the
form hereto as Exhibit E ("Assignment") duly executed by Buyer.
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1.5.2 Seller shall deposit:
1.5.2.1 The Assignment duly executed by Seller;
1.5.2.2 The Estoppel Certificate duly executed by B
of A;
1.5.2.3 The Amendment to Lease duly executed by B of
A; and
1.5.2.4 The Amendment to Operating Agreement duly
executed by Seller;
1.5.3 The parties shall each deposit such other documents
or instruments into Escrow as are reasonably required by Escrow Holder or
otherwise necessary to proceed to the Close of Escrow and consummate the
transactions contemplated by this Agreement in accordance with the terms and
conditions hereof.
1.6 Close of Escrow. On the Closing Date, Escrow Holder shall
take the following actions:
1.6.1 deliver to Seller the Purchase Price Balance and all
other amounts payable to Seller in accordance with this Agreement;
1.6.2 return any remaining Escrow funds to Buyer; and
1.6.3 deliver to each party an executed copy of each of the
documents deposited into Escrow.
1.7 Defaults with Respect to the Close of Escrow.
1.7.1 Buyer's Default. IN THE EVENT THE CLOSE OF ESCROW
DOES NOT OCCUR SOLELY BY REASON OF ANY DEFAULT OF BUYER (ALL
CONDITIONS TO BUYER'S OBLIGATIONS RESPECTING THE CLOSE OF ESCROW
HAVING BEEN SATISFIED), WHICH DEFAULT IS NOT CURED WITHIN TWO (2
BUSINESS DAYS .AFTER THE RECEIPT OF WRITTEN NOTICE THEREOF FROM
SELLER, THE PARTIES AGREE THAT IT WOULD BE IMPRACTICAL AND EXTREMELY
DIFFICULT TO ESTIMATE THE DAMAGES WHICH SELLER MAY SUFFER, THEREFORE
THE PARTIES DO HEREBY AGREE THAT A REASONABLE ESTIMATE OF THE TOTAL
NET DETRIMENT THAT SELLER WOULD SUFFER IN THE EVENT THAT BUYER
DEFAULTS AND FAILS TO COMPLETE ITS PURCHASE OF SELLER'S MEMBERSHIP
INTEREST IN THE COMPS IS AND SHALL BE, AS SELLER'S SOLE AND EXCLUSIVE
REMEDY (WHETHER AT LAW OR IN EQUITY) AN AMOUNT EQUAL TO THE DEPOSIT
(WHICH FOR THIS PURPOSE SHALL INCLUDE ANY ACCRUED INTEREST THEREON)
AND THE CLOSING EXTENSION DEPOSIT, IF MADE BY BUYER. SAID AMOUNT SHALL
BE THE FULL, AGREED AND LIQUIDATED DAMAGES FOR THE BREACH OF THIS
AGREEMENT BY BUYER AND SELLER HEREBY WAIVES ALL OTHER CLAIMS TO
DAMAGES OR ANY OTHER REMEDIES AGAINST BUYER, EXCEPT FOR BUYER'S
INDEMNITY OBLIGATIONS OR ANY CLAIMS BY SELLER FOR ATTORNEYS' FEES
UNDER SECTIONS 3.4 AND 9.2 OF THIS AGREEMENT, THE PAYMENT OF SUCH
AMOUNT AS LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR
PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR
3369 BUT IS INTENDED TO
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CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO CALIFORNIA CIVIL
CODE SECTIONS 1671,1676 AND 1677. NOTWITHSTANDING THE FOREGOING, THE
TERMS AND PROVISIONS OF THIS SECTION 1.7.1 SHALL NOT LIMIT BUYER'S
LIABILITY SECTIONS 3.4 AND 9.2.
RFM KK SO
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Buyer's Initials Seller's Initials
Notwithstanding anything to the contrary contained herein, the provisions of
this Section 1.7 shall survive the Close of Escrow or earlier termination of
this Agreement.
1.7.2 Default by Seller. In the event the Close of Escrow
does not occur by reason of any default by Seller after notice and
expiration of all applicable cure periods under this Agreement, Buyer
shall, as its sole and exclusive remedy, be entitled to either (i) the
return of the Deposit and the Closing Extension Deposit if made by
Buyer (including any interest accrued thereon), and recovery from
Seller of all costs and expenses incurred by Buyer in connection with
the transaction contemplated by this Agreement up to a maximum amount
of $250,000, and the modifications to the Operating Agreement set forth
in Section 1.4.2.5 above shall be null and void; or (ii) specific
performance of this Agreement provided that Buyer tenders the Purchase
Price on or before the Closing Date; provided, however, if Buyer cannot
obtain specific performance due to Seller contesting Buyer's right of
specific performance, then Buyer shall be entitled to pursue all other
rights or remedies to which it may be entitled at law or in equity as a
result of Seller's default in closing Escrow after notice and
expiration of all applicable cure periods under this Agreement, and the
modifications to the Operating Agreement set forth in Section 1.4.2.5
above shall be null and void. Seller shall not be in default in the
performance of any material obligation required to be performed by
Seller under this Agreement unless Seller has failed to perform such
material obligation within two (2) business days after the receipt of
written notice thereof from Buyer.
1.8 Failure of Conditions to Close of Escrow. In the event of
the non-satisfaction of a condition precedent to Buyer's obligations with
respect to the Close of Escrow that is not the result of a Seller default, Buyer
shall have the right to terminate the Agreement, Buyer shall be entitled to a
return of the Deposit and Closing Extension Deposit (if delivered by Buyer) and
the modifications to the Operating Agreement set forth in Section l.4.2.5 above
shall be null and void.
1.9 Costs and Prorations. Buyer shall bear all fees and costs
with respect to the Close of Escrow and the consummation of the transaction
contemplated under this Agreement, including, without limitation, Escrow
Holder's fees and costs, the commission to be paid to Broker pursuant to Section
4 below, costs in connection with satisfying the requests of Credit Suisse,
transfer fees, defeasance fees, prepayment fees, if any, loan servicer fees and
charges, rating agency fees and charges, and the fees and costs of Buyer's and
Seller's respective legal counsel (up to a maximum amount of $75,000 for
Seller's legal counsel) in connection with this transaction, including, without
limitation, the preparation and negotiation of this Agreement and other
documentation related to the foregoing, and the proposed initial public offering
by Xxxxxxx Properties, Inc. contemplated in that certain Form S-11 Registration
Statement (Registration No. 333-101170), as amended (the "Registration
Statement"), filed with the Securities and Exchange Commission (the "Xxxxxxx
IPO"). All income and expenses of Company and the Project shall be prorated as
of the Close of Escrow so that Seller shall receive all distributions,
including, without limitation, Net Operating Cash Flow, that Seller is entitled
to receive under the Operating Agreement through and including the Closing Date.
If any prorations shall require final adjustment after the Close of Escrow, then
the parties shall make the appropriate adjustments promptly when accurate
information becomes available. Any such adjustment to prorations shall be paid
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promptly in cash to the party entitled thereto. Notwithstanding anything to the
contrary contained herein, the provisions of this Section 1.9 shall survive the
Close of Escrow or earlier termination of this Agreement.
1.10 Initial Public Offering. If at any time the Xxxxxxx IPO
is terminated or it becomes apparent that there is no reasonable likelihood of
the Xxxxxxx IPO being consummated by July 15, 2003 (or October 31, 2003, as
applicable if Buyer validly exercises the Extension Option) then Buyer shall
immediately notify Seller in writing of such termination or delay in the Xxxxxxx
IPO ("Buyer's Notice"). In Buyer's Notice, Buyer shall indicate to Seller
whether Buyer intends to consummate the Close of Escrow under this Agreement by
the required July 15, 2003 (or October 31, 2003, as applicable if Buyer validly
exercises the Extension Option) Closing Date notwithstanding such termination or
delay of the Xxxxxxx IPO. If in Buyer's Notice, Buyer notifies Seller that it
intends to consummate the Close of Escrow under this Agreement by the required
July 15, 2003 (or October 31, 2003, as applicable if Buyer validly exercises the
Extension Option) Closing Date even though the Xxxxxxx IPO has been terminated
or delayed, then Buyer shall include in Buyer's Notice a customary and standard
commitment letter or letters ("Commitment Letter") with commercially reasonable
closing conditions from one or more independent (i.e., unaffiliated with Buyer)
financial institutions (and/or investment parties in a financial condition
reasonably acceptable to Buyer) evidencing a commitment to fund the aggregate
Purchase Price under this Agreement by the required July 15, 2003 (or October
31, 2003, as applicable if Buyer validly exercises the Extension Option) Closing
Date subject to satisfaction of the commercially reasonable closing conditions
set forth in the commitment letter. If Buyer notifies Seller that due to the
termination or delay of the Xxxxxxx PTO that Buyer does not intend to consummate
the Close of Escrow under this Agreement by the required July 15, 2003 (or
October 31, 2003, as applicable if Buyer validly exercises the Extension Option)
Closing Date, or if Buyer does not include the Commitment Letter in Buyer's
Notice as described above, then Seller shall have the right to terminate this
Agreement and retain the Deposit and Closing Extension Deposit as liquidated
damages in accordance with Section 1.7.1, and the modifications to the Operating
Agreement set forth in Section 1.4.2.5 shall remain in full force and effect.
2. ASSIGNMENT. Upon prior written notice to Seller, Buyer shall have
the right to assign its rights and interest in this Agreement (including for
collateral purposes), to an Affiliate of Buyer (as "Affiliate" is defined in
Section 20.2(c) of the Operating Agreement), Xxxxxxx Properties, Inc., the
operating partnership or a wholly-owned subsidiary of the operating partnership
(as "operating partnership" is defined in the Registration Statement), or to
nominate an Affiliate, Xxxxxxx Properties, Inc, the operating partnership or a
wholly-owned subsidiary of the operating partnership to take title to Seller's
Membership Interest in the Company, in which case all documents to be delivered
under this Agreement in which Buyer is intended to be a party or which are
delivered for the benefit of Buyer shall instead be delivered in the name of
such assignee or nominee. No assignment by Buyer shall release Buyer from
liability hereunder. Except as described in this Section 2, Buyer shall not have
the right to assign its rights, interests or obligations under this Agreement.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS.
3.1 Representations and Warranties of Buyer and Seller. Each of
Buyer and Seller represents and warrants to the other that:
3.1.1 except as described in this Agreement, it is not subject
to any contract, agreement or any other restriction of any kind, and does not
know of any contract, agreement or any other restriction of any kind, which
would prevent the consummation of the transactions contemplated by this
Agreement;
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3.1.2 it is a corporation or limited liability company,
duly formed and presently existing under the laws of the state of its
incorporation or formation, and will, at all times during the term of this
Agreement, have adequate power and authority to make and carry out this
Agreement, and is qualified to do business in the State of California;
3.1.3 its execution, delivery and performance of this
Agreement have been and are duly authorized by its organizational
documents and do not require the consent or approval of any governmental
body or regulatory authority or other entity, are not in contravention or
conflict with any applicable law or regulation or any term or provision of
its organizational documents, and that this Agreement is a valid, binding
and legally enforceable obligation in accordance with its terms, subject
to bankruptcy, insolvency and similar laws and general principals of
equity; and
3.1.4 except as described in this Agreement, as of the
date hereof it has not sold, assigned, transferred, hypothecated, pledged,
encumbered or otherwise disposed of all or any portion of its rights or
interest in the Company. Seller hereby represents and warrants to Buyer
that Seller is the sole owner of Seller's Membership Interest in the
Company, free and clear of any lien, encumbrance, security interest or
claim.
3.2 Covenants of Buyer.
3.2.1 Subsequent FAR Payments. Pursuant to Section 2.1.3
of that certain Master Agreement and Joint Escrow Instructions (the
"Master Agreement"), dated as of December 11, 2000, executed by Buyer,
Seller and Company, Buyer hereby covenants and agrees that, if within
ninety (90) months following the date of the Master Agreement a building
permit or permits is hereafter issued for the Transfer Property (as
defined in the Master Agreement) for an aggregate amount of FAR
Entitlements in excess of 300,000 square feet of improvements, then within
thirty (30) days following the issuance of any such building permit, Buyer
shall pay to Seller an additional amount equal to Twelve and 50/100
Dollars ($12.50) for each square foot of FAR Entitlements in excess of
300,000 square feet. Notwithstanding anything to the contrary contained
herein, the provisions of this Section 3.2 shall survive the Close of
Escrow or earlier termination of this Agreement.
3.3 AS-IS; No Warranties; Release. Except as expressly
provided otherwise in this Agreement with respect to Seller's representations
and warranties, Seller's Membership Interest in the Company is purchased and
sold in "AS IS" and "WHERE IS" condition "WITH ALL FAULTS" as of the Closing
Date. The Purchase Price and the terms and conditions set forth in this
Agreement are the result of arm's-length bargaining between entities familiar
with transactions of this kind and said price, terms and conditions reflect the
fact that, except as otherwise expressly provided in this Agreement with respect
to Seller's representations and warranties, Buyer shall have the benefit of, and
is relying upon, no statements, representations, warranties or covenants
whatsoever made by or enforceable directly against Seller relating to the
Seller's Membership Interest in the Company or the Project. Except as otherwise
expressly provided in this Agreement with respect to Seller's representations
and warranties, Buyer is relying solely upon its own inspection and
investigation of Seller's Membership Interest in the Company and the Project.
Except for representations and warranties of Seller that are expressly set forth
in this Agreement, Seller is not making nor shall be deemed to have made any
representation or warranty of any kind or nature as to the Company, the Project
or the transactions contemplated in this Agreement, including, without
limitation, (i) the financial status of the Company or the Project, including,
without limitation, the income to be derived therefrom, (ii) the value, nature,
quality, physical or environmental condition, safety or any other aspect of the
Project or the Project's compliance with applicable laws, ordinances, rules and
regulations, including, without limitation, zoning ordinances, building codes
and
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environmental statutes or regulations, (iii) the accuracy or thoroughness of any
information or data provided to Buyer by Seller, (iv) the development potential
of all or any part of the Project, (v) the suitability of the Project for
Buyer's business purposes or the feasibility of obtaining the entitlements and
approvals necessary for Buyer's business purposes, or (vi) any other matter
relating to the Company or the Project. Except for the representations,
warranties, covenants, liabilities and obligations of Seller under this
Agreement, effective upon the Close of Escrow, Buyer hereby for itself and each
and all of its agents, employees, members, partners, officers, directors,
affiliates, subsidiaries, shareholders and representatives (collectively,
"Buyer's Affiliates") irrevocably and unconditionally releases, discharges and
forever acquits, and waives its right to recover, from Seller and Seller's
agents, employees, members, partners, officers, directors, affiliates,
subsidiaries, shareholders and representatives (collectively, "Seller's
Affiliates") any and all damages, losses, liabilities, costs or expenses
whatsoever (including reasonable attorneys' fees and costs) and claims therefor
(collectively, "Claims"), whether direct or indirect, known or unknown or
foreseen or unforeseen, which may arise from or be related to the Operating
Agreement, Seller's Membership Interest in the Company, Company, the Project
and/or matters that were disclosed to or known by Buyer prior to Close of
Escrow. This release includes claims of which Buyer is presently unaware or
which Buyer does not presently suspect to exist which, if known by Buyer, would
have materially affected Buyer's release to Seller. Without limiting the
foregoing, Buyer acknowledges and agrees that Buyer shall rely upon Buyer's own
due diligence, investigation and evaluation of Seller's Membership Interest in
the Company and the underlying assets and liabilities represented by Seller's
Membership Interest in the Company in determining whether the Seller's
Membership Interest in the Company and the Project are suitable for purchase by
Buyer. Buyer acknowledges that Buyer has been given a reasonable opportunity to
inspect and investigate the Seller's Membership Interest in the Company, Company
and the Project and all aspects relating thereto, either independently or
through agents of Buyer's choosing prior to the Closing Date, and that Buyer is
acquiring Seller's Membership Interest in the Company based exclusively upon
Buyer's own investigations and inspections, except for representations and
warranties of Seller that are expressly set forth in this Agreement. Except for
the representations, warranties, covenants, liabilities and obligations of Buyer
under this Agreement, effective upon the Close of Escrow, Seller hereby for
itself and each and all of its Seller's Affiliates irrevocably and
unconditionally releases, discharges and forever acquits, and waives its right
to recover, from Buyer and Buyer's Affiliates any and all Claims which may arise
from or be related to the Operating Agreement prior to the Close of Escrow,
whether direct or indirect, known or unknown or foreseen or unforeseen. This
release includes claims of which Seller is presently unaware or which Seller
does not presently suspect to exist which, if known by Seller, would have
materially affected Seller's release to Buyer.
The terms and provisions of this Section 3.3 shall not be applicable to the
obligations and liabilities of the parties under the B of A Lease or that
certain Parking Structure Expansion and Easement Agreement ("Parking REA") dated
as of April 17, 2001 or any other document or agreement executed by such parties
in connection with the B of A Lease and/or the Parking REA.
With respect to the releases expressly contained in this Section
3.3, Buyer and Seller, by their respective initials set forth below, on behalf
of Buyer and all of Buyer's Affiliates and Seller and all of Seller's
Affiliates, respectively, expressly waive any of their rights and benefits
granted under California Civil Code Section 1542 in connection therewith, which
provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
9
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIAL
AFFECTED THIS SETTLEMENT WITH THE DEBTOR."
RFM ILLEGIBLE
-------------- -----------------
Buyer's Initials Seller's Initials
Notwithstanding anything to the contrary contained herein, the provisions of
this Section 3.3 shall survive the Close of Escrow or earlier termination of
this Agreement.
3.4 Indemnity. Buyer shall defend, indemnify, protect and hold
Seller and Seller's Affiliates harmless from and against any and all Claims,
whether direct or indirect, known or unknown or foreseen or unforeseen, incurred
by Seller or Seller's Affiliates, or that may be brought against them by (i)
third parties, arising out of Seller's Membership Interest in the Company that
arise after the Close of Escrow, or arising out of any misrepresentation or
breach of warranty or covenant by Buyer under this Agreement or any document
executed by Buyer pursuant to this Agreement, or (ii) Credit Suisse or Disney
arising out of or relating to this Agreement. Notwithstanding anything to the
contrary contained herein, the provisions of this Section 3.4 shall survive the
Close of Escrow.
4. BROKERS. Each party represents and warrants that it has had no
dealings with any broker in connection with this Agreement and the consummation
of the transactions described herein, and knows of no broker or other party to
whom a broker's or finder's fee or similar compensation is or may be payable in
connection therewith, except for Xxxxx Xxxx LaSalle ("Seller's Broker"). Buyer
shall be responsible for the payment to Broker of a fee concurrent with, and
conditioned upon, the closing of this transaction. Each party agrees to
indemnify, defend and hold harmless the other party from and against any and all
claims, losses, liens, claims, judgments, liabilities, costs, expenses or
damages (including reasonable attorneys' fees and court costs) of any kind or
character, arising out of or resulting from any agreement, arrangement or
understanding alleged to have been made by such party or on its behalf with any
broker or finder in connection with this Agreement or the transactions
contemplated hereby. The foregoing indemnity shall survive the Close of Escrow
or the earlier termination of this Agreement.
5. CONFIDENTIALITY. Buyer and Seller agree to keep this Agreement
confidential and to not disclose or make any public announcements with respect
to the subject matter hereof without the written consent of the other party,
unless a party is required to make such disclosure under applicable law and
relies upon the advice of legal counsel in making such disclosure. This Section
5 shall not restrict disclosures (i) to Buyer Affiliates or Seller Affiliates,
or their respective attorneys, consultants, agents, accountants, or existing or
potential investors or lenders; (ii) to Credit Suisse or Disney; (iii) as
required to comply with governmental, regulatory or other legal requirements
pertaining to the Xxxxxxx IPO; or (iv) in connection with any legal proceedings
between the parties.
6. NOTICES. All notices or other communications required or
permitted hereunder shall be in writing, and shall be personally delivered, sent
by recognized overnight mail service or by registered or certified mail, postage
pre-paid, return receipt requested, or sent by facsimile, and shall be effective
upon the date of receipt (or the date delivery is rejected) at the following
addresses:
To Buyer: Xxxxxxx Partners
000 Xxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx III
Fax No.: (000) 000-0000
10
With copies to: Xxxxxxx Partners
000 Xxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxx Lammas, Esq.
Fax No.: (000) 000-0000
and Xxxxxx, Xxxxxx & Xxxxx LLP
355 5. Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Fax No.: (000) 000-0000
To Seller: BankAmerica Realty Services, Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Fax No.: (000) 000-0000
With copies to: Bank of America, NT & SA
Corporate Real Estate
000 X. Xxxxxxxx Xxxxxx
Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxx Xxxxxxx
Fax No.: (000) 000-0000
and Bank of America, NT & SA
Xxxxx Xxxxxxxxxx Xxxxx #0000
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxx X. Xxxxx
Fax No.: (000) 000-0000
and Xxxxxxxx Chance US LLP
000 X. Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxx, Esq.
Fax No. (000) 000-0000
To Escrow Holder Commerce Escrow Company
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attention: Xx. Xxxx Xxxxxx
Fax No. (000) 000-0000
7. CHANGE OF ADDRESS. Notice of change of address shall be given by
written notice in the manner detailed in Section 6 above. Rejection or other
refusal to accept or the
11
inability to deliver because of changed address of which no notice was given
shall be deemed to constitute receipt of the notice, demand, request or
communication sent.
8. ARBITRATION OF DISPUTES. ANY CONTROVERSY OR CLAIM BETWEEN OR
AMONG THE PARTIES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY AGREEMENTS
OR INSTRUMENTS RELATING HERETO OR DELIVERED IN CONNECTION HEREWITH SHALL AT THE
REQUEST OF ANY PARTY BE DETERMINED BY ARBITRATION IN ACCORDANCE WITH THE TERMS
AND PROVISIONS SET FORTH IN ARTICLE 26 OF THE OPERATING AGREEMENT.
NOTICE: BY INITIALING IN THE SPACE BELOW 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 INITIALING IN THE SPACE BELOW YOU ARE GIVING UP YOUR
JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY
INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION. 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. WE HAVE READ AND UNDERSTAND THE
FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN
THE "ARBITRATION OF DISPUTES" PROVISION TO NEUTRAL ARBITRATION.
RFM ILLEGIBLE
---------------- -----------------
Buyer's Initials Seller's Initials
9. MISCELLANEOUS.
9.1 Amendments. This Agreement may be amended from time to
time only by a writing executed by all parties.
9.2 Attorneys' Fees. If any judicial action or proceeding or
arbitration between the parties for declaratory relief (or any appeal thereof)
or to enforce any of the provisions of this Agreement or any right of any party
hereto, regardless of whether such action or proceeding is prosecuted to
judgment, and in addition to any other remedy, the unsuccessful party shall pay
to the successful party all costs and expenses, including reasonable attorneys'
fees, incurred therein by the successful party. For this purpose, the successful
party shall be the party whose major arguments or positions could reasonably be
said to have prevailed over the major arguments or positions of the other party.
Notwithstanding anything to the contrary contained herein, the provisions of
this Section 9.2 shall survive the Close of Escrow or earlier termination of
this Agreement.
9.3 Entire Agreement. This Agreement (including the exhibits
hereto) are the entire agreement between the parties with respect to the subject
matter hereof and supercedes all prior agreements between the parties with
respect to the matters described herein.
9.4 Exhibits. All of the exhibits attached to this Agreement
are hereby incorporated by reference.
9.5 Captions. Any titles or captions of sections or paragraphs
contained in this Agreement are for convenience only and shall not be deemed a
part of the context of this Agreement.
12
9.6 Pronouns. All pronouns and any variations thereof shall be
deemed to referred to the masculine, feminine, neuter, singular or plural, as
the identification of the person or persons, entity or entities, may require.
9.7 Governing Law. This Agreement shall be enforced, governed
by and construed in accordance with the laws of the State of California.
9.8 Severability. If any provision of this Agreement shall be
invalid or enforceable for any reason and to any extent (unless such invalidity
would prevent all parties from receiving the benefit of their bargain), the
remainder of this Agreement shall not be affected thereby, but shall be enforced
to the greatest extent permitted by law.
9.9 Further Documents; Cooperation. All parties shall execute
such further documents and take such further actions as may be reasonably
necessary or desirable to accomplish any transaction intended or authorized by
this Agreement. Notwithstanding the generality of the foregoing, if required in
order to consummate the transaction evidenced by this Agreement, Seller shall
cooperate with Buyer to obtain the consent of Credit Suisse and any applicable
rating agency approval required under the Credit Suisse Loan Documents.
9.10 Non-Waiver of Rights and Breaches. No failure or delay of
a party in the exercise of any right given to such party hereunder or by law
shall constitute a waiver thereof, nor shall any single or partial exercise of
any such right preclude other further exercise thereof or of any other right.
The waiver by any party of any breach of any provision hereof shall not be
deemed to be a waiver of any subsequent breach thereof, or of any breach of any
other provision hereof.
9.11 Parties Bound. This Agreement shall bind and inure to the
benefit of the parties and their respective heirs, personal representatives,
successors and permitted assigns.
9.12 Waiver of Trial by Jury. The parties hereby waive any and
all rights they may have under applicable law to trial by jury with respect to
any dispute with each other arising directly or indirectly in connection with
this Agreement.
9.13 Construction. The parties hereto hereby acknowledge and
agree that (A) each party hereto is of equal bargaining strength, (B) each such
party has actively participated in the drafting, preparation and negotiation of
this Agreement, (C) each such party has consulted with such party's own,
independent counsel, and such other professional advisors as such party has
deemed appropriate, relating to any and all matters contemplated under this
Agreement, (D) each such party and such party's counsel and advisors have
reviewed this Agreement, (E) each such party has agreed to enter into this
Agreement following such review and the rendering of such advice, and (F) any
rule of construction to the effect that ambiguities are to be resolved against
the drafting party shall not apply in the interpretation of this Agreement, or
any portions hereof, or any amendments hereto.
9.14 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which,
together, shall constitute but one and the same instrument.
13
IN WITNESS WHEREOF, the Buyer and Seller have entered into this
Agreement as of the date first set forth above.
SELLER:
BANKAMERICA REALTY SERVICES, INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxx
-------------------------------------
Its: Vice President
-------------------------------------
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx
-------------------------------------
Its: Senior Vice President
-------------------------------------
BUYER:
XXXXXXX PARTNERS GLENDALE, LLC,
a California limited liability company
By: Xxxxxxx Partners-III, Inc.,
a California corporation
By: /s/ Xxxxxx X. Xxxxxxx, III
-------------------------------------
Xxxxxx X. Xxxxxxx, III
President
14
Exhibit A
SITE PLAN
[GLENDALE CENTER SITE PLAN GRAPHIC]
Exhibit A
Exhibit B
ESTOPPEL CERTIFICATE
Exhibit B
Estoppel Certificate
(Bank of America)
_______ 2003
Xxxxxxx Partners-Glendale Center, LLC
c/o Maguire Partners
000 Xxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Ladies and Gentlemen:
The undersigned certifies as of the date hereof as follows:
1. It is the tenant under the Amended and Restated Glendale
Center Office Lease dated March 5,1996 (the "LEASE") between Xxxxxxx Xxxxxx
Partners-Glendale Center, LLC, as landlord (together with its successors and
assigns, "LANDLORD"), and the undersigned, as tenant ("TENANT"), for premises on
level "A" and the 10th through 14th floors consisting of 136,030 square feet of
Rentable Area (the "LEASED PREMISES") in the building located at 000 X. Xxxxx
Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxx (the "BUILDING"). All capitalized terms not
otherwise defined herein shall have the meanings provided in the Lease.
2. The Lease is in full force and effect. The Lease has not
been amended, modified or supplemented except as follows: Letter Agreement
between Tenant and Disney Enterprises, Inc. re Sublease Right of First Offer,
dated March 5, 1996; Relocation Notice dated March 1, 1996; and First Amendment
to Amended and Restated Glendale Center Office Lease dated as of ________,
2003. There are no other agreements or understandings, whether written or oral,
between Tenant and Landlord with respect to the Lease, the Leased Premises or
the Building.
3. Tenant has accepted possession of and occupies the entire
Leased Premises under the Lease. The term of the Lease commenced on November 1,
1995, expires on October 31, 2010 with respect to floors 13 and 14, and expires
on April 30, 2013 with respect to the remainder of the Leased Premises (i.e.,
level A and floors 10,11 and 12) subject to Tenant's various termination options
contained in the Lease, including, but not limited to, the rights set forth in
Sections 12.3,12.4,12.6,12.7 and 13.1 of the Lease. Tenant may also have rights
of termination as provided under the laws of the State of California, except as
limited by the terms of the Lease, including, but not limited to Sections 12.3,
12.4, 12.7, 13.1. The foregoing expiration dates are also subject to the
following renewal options: four (4) consecutive options to renew for both the
13th and 14th floors and the remainder of the Leased Premises for three (3)
successive periods of five (5) years each, and a final period of four (4) years
and six (6) months as to the 13th and 14th floors and a final period of one (1)
year and eleven (11) months as to the remainder of the Leased Premises (i.e.,
level A and floors 10, 11 and 12), all subject to and in accordance with Section
3.3 of the Lease.
4. The monthly Basic Rent under the Lease is currently
$_______________ and has been paid through the month of _______________2003,
subject to adjustment and abatement in accordance with the Lease, including, but
not limited to, Articles 3, 4, 6, 9, 12 and 13 and
Section 22.7. All Additional Rent, including Tenant's proportionate share of
Operating Expenses and Real Property Taxes, and all other sums or charges due
and payable under the Lease by Tenant have been paid through the month of
___________________2003, subject to adjustment and/or credit pursuant to the
Lease, including, but not limited to, Sections 5.2, 5.3 and/or 5.5 and Tenant's
audit and review rights pursuant to Section 5.5, and no Basic Rent or Additional
Rent has been paid for more than one (1) month in advance of the due date
thereof (excluding payments made in advance on an estimated basis in accordance
with the Lease for Operating Expenses and Real Property Taxes).
5. There is no security deposit under the Lease.
6. To the best of Tenant's actual knowledge, both Tenant and
Landlord have performed all of their respective obligations under the Lease and
Tenant has no actual knowledge of any event which with the giving of notice, the
passage of time or both would constitute a default by Landlord under the Lease.
7. To the best of Tenant's actual knowledge, Tenant currently
has no claim against Landlord and no offset or defense to enforcement of any of
the terms of the Lease. To the best of Tenant's actual knowledge, Tenant has not
advanced any funds for or on behalf of Landlord for which Tenant has a right to
deduct from or offset against future rent payments. Notwithstanding the
foregoing provisions of this Paragraph 7, to the extent provided in the Lease
Tenant may in the future (i) be entitled to an abatement and/or credit of Basic
Rent, Operating Expenses and Real Property Taxes in accordance with the Lease,
including, but not limited to, Articles 3, 4, 6, 9, 12 and 13 and Section 22.7,
and (ii) exercise its termination rights pursuant to the Lease, including, but
not limited to, the rights set forth in Sections 12.3, 12.4, 12.6, 12.7 and 13.1
of the Lease.
8. All improvements required to be completed by Landlord have
been completed and there are no sums due to Tenant from Landlord. Landlord has
not agreed to grant Tenant any free rent or rent rebate or to make any
contribution to tenant improvements, except for those already paid or credited
as set forth in the Lease. Landlord has not agreed to reimburse Tenant for or to
pay Tenant's rent obligation under any other lease.
9. Tenant has not assigned the Lease and has not subleased the
Leased Premises or any part thereof.
10. Tenant has no right or option pursuant to the Lease or
otherwise to purchase all or any part of the Leased Premises or the Building.
Tenant does not have any right or option for additional space in the Building.
11. No voluntary actions or, to the best of Tenant's actual
knowledge, involuntary actions are pending against Tenant under the bankruptcy
laws of the United States or any state thereof.
The undersigned individual in its capacity as an employee,
officer or director of Tenant, hereby certifies that he or she is duly
authorized to sign, acknowledge and deliver this letter on behalf of Tenant.
The information contained in this letter shall be for
Landlord's benefit and for the benefit of Landlord's successors and assigns and
may not be relied upon by any other person or entity unless such person or
entity receives the prior written permission of Tenant.
Very truly yours,
BANK OF AMERICA, N.A.
By: _____________________________
Name: _______________________
Title: ______________________
Exhibit C
AMENDMENT TO LEASE
Exhibit C
FIRST AMENDMENT TO AMENDED AND RESTATED
GLENDALE CENTER OFFICE LEASE
This FIRST AMENDMENT TO AMENDED AND RESTATED GLENDALE CENTER
OFFICE LEASE ("First Amendment") is made and entered into as of _______, 2003,
by and between XXXXXXX PARTNERS 611 - N. BRAND LLC, a Delaware limited liability
company (the "Landlord"), and BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION (the "Tenant").
RECITALS
X. Xxxxxxx Partners-Glendale Center, LLC, a California limited
liability company ("Company"), formerly known as Xxxxxxx Xxxxxx
Partners-Glendale Center, LLC, a California limited liability company, and
Tenant have entered into that certain Amended and Restated Glendale Center
Office Lease dated as of March 5, 1996 (as amended, the "Original Lease").
Landlord is the successor-in-interest to Company under the Original Lease.
X. Xxxxxxx Partners-Glendale, LLC, a California limited
liability company ("MP"), and BankAmerica Realty Services, Inc., a Delaware
corporation ("BARSI"), have entered into that certain Agreement for Purchase and
Sale of Membership Interest and Joint Escrow Instructions dated as of May ___,
2003 (the "Purchase Agreement"), whereby MP has agreed to purchase from BARSI
and BARSI has agreed to sell to MP all of BARSI's Membership Interest in the
Company under that certain Amended and Restated Operating Agreement dated as of
March 5, 1996, as amended by that certain Amendment to Amended and Restated
Limited Liability Operating Agreement dated as of December 11, 2000 (as amended,
the "Operating Agreement"), in accordance with the terms and conditions of the
Purchase Agreement.
C. Pursuant to the Purchase Agreement, Landlord and Tenant
desire to amend the Original Lease in order to provide for additional parking
rights and obligations as provided in this First Amendment.
NOW, THEREFORE, in consideration of the promises contained
herein, the adequacy and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
1. Defined Terms. Defined terms are indicated in this First
Amendment by initial capital letters. Except as specifically provided otherwise
in this First Amendment, defined terms shall have the same meaning in this First
Amendment as they do in the Original Lease.
2. Lease Summary. The Amended and Restated Lease Summary
attached to the Original Lease is hereby amended to reflect an increase in the
number of Parking Passes provided to Tenant in accordance with Section 3 below.
1
3. Parking Facilities.
3.1 Article 26 of the Original Lease is hereby amended and
restated in its entirety as follows:
"26. Parking Facilities.
(a) Landlord shall provide and Tenant shall rent monthly
parking spaces ("Passes") in the Parking Garage and the surface parking
areas on the Land, or in the replacement parking area or structure
provided by Landlord for use of the Project on the Land, or at another
offsite location on a block adjacent to the Land (which has lighting,
security and maintenance comparable to that of the parking facilities
on the Land), so long as at all times at least 70% of the Passes that
Tenant is renting under this Paragraph (a) or Paragraph (b) below are
for parking located on the Land and at least 10 of which spaces may be
reserved parking Passes, as follows: (a) Effective on the Closing Date
(as defined in the Purchase Agreement) until October 31, 2010, Landlord
shall provide Tenant with 1224 unreserved parking passes and 4 reserved
parking stalls at the Project and Tenant shall pay to Landlord an
amount equal to $960,000 per annum in parking rent ("Parking Rent") for
these Passes. Such Parking Rent shall increase annually by five percent
(5%) commencing on the first anniversary of the Closing Date and each
year thereafter; (b) Commencing on November 1, 2010 until April 30,
2013, Landlord shall provide Tenant with 805 unreserved parking passes
(or 9 parking passes per 1,000 square feet of space leased) and 4
reserved parking stalls at the Project and Tenant shall pay to Landlord
an amount equal to $884,000 per annum in Parking Rent for these Passes.
Such Parking Rent shall increase annually by five percent (5%)
commencing on November 1 of the following year and each year
thereafter; and (c) Commencing on May 1, 2013 until May 31, 2013,
Landlord shall provide Tenant with 175 unreserved parking passes (or 9
stalls for every 1000 square feet of space leased) and 4 reserved
parking stalls at the Project and Tenant shall pay to Landlord an
amount equal to $18,500 in Parking Rent for these Passes. The use of
the Passes shall be subject to reasonable parking rules and regulations
as Landlord may reasonably establish from time to time, including the
Parking Rules and Regulations attached hereto as Exhibit "I".
(b) Tenant shall have the option to rent an additional number
of Passes, up to an aggregate of one (1) additional Pass per each 1,000
square feet of Rentable Area in the Premises, provided such additional
Passes are available at the time Tenant requests the same and are not
then required for any other tenant in the Project. If Tenant requests
such additional Passes, Landlord shall provide such additional Passes
(up to the aggregate of one Pass per 1,000 square feet of Rentable Area
in the Premises) and Tenant shall rent such Passes for a minimum of
three (3) months, after which time Tenant can return all or part of
such additional Passes back to
3
Landlord without further obligation to rent the same (but with the
right to again rent such additional Passes on the foregoing terms). If
any of the Passes or additional parking Passes are located in a parking
facility off of the Land, Tenant shall pay the lower of (i) Landlord's
Actual Cost of obtaining such Passes or additional Passes or (ii) the
parking rates payable to Landlord for parking Passes that are located
on the Land. If any substitute parking facilities are located off of
the Land, Landlord shall provide shuttle and escort service to and from
the offsite parking facility and the Building and the cost thereof only
shall be an Operating Expense, if the offsite parking facility is being
used as a result of a casualty or event beyond Landlord's control.
(c) Tenant shall pay an initial monthly Pass rent of $60.00
per Pass for any additional Passes pursuant to Section 26(b). The
initial monthly Pass rental rates for additional passes may be
increased but not decreased by Landlord from time to time after the
first (1st) anniversary of the Commencement Date to the then prevailing
parking pass market rental rates for such Passes, but no increase shall
exceed ten percent (10%) per annum from the Commencement Date on a
cumulative and compounded basis.
(d) Without restricting or limiting Tenant's rights set forth
above in subsections (a), (b) and (c) above, Landlord shall have the
right to provide-parking for the Project at off-site locations, and in
such event, said off-site parking areas shall be deemed part of the
Project for purposes of this Lease. Landlord shall have the right to
change, delete or modify such off-site parking areas and to reconfigure
the on-site parking areas and the Parking Garage so long as Landlord
provides Voluntary Substitute Parking for Tenant to use its Passes to
the extent Tenant's use of its passes is restricted or prohibited by
such work. The Passes rented by Tenant pursuant to this Article 26 are
provided to Tenant solely for use by Tenant's own personnel or
Affiliates of Tenant and such passes may not be transferred, assigned,
subleased or otherwise alienated by Tenant without Landlord's prior
approval except to a permitted Transferee or an existing tenant or
subtenant of the Building.
(e) Notwithstanding anything to the contrary contained in this
Lease, Tenant's Passes shall provide the holder the right to access the
parking facilities provided by Landlord twenty-four (24) hours per day,
seven (7) days per week, every day of the year. Tenant's parking shall
be non-tandem. Except for the pending lease with Total Women, should
Landlord provide reserved, segregated, preferred, priority, valet or
block parking to other tenants, the same shall be made available to
Tenant at the same terms on a pro rata basis based on the Rentable Area
of the Premises compared to the Rentable Area in the premises of the
other tenant.
3
(f) A specific section shall be set aside within the Parking
Garage or on the surface parking area on the Land for visitor parking.
Such parking shall be at a charge to visitors at the rate established
by Landlord from time to time, comparable to visitor parking rates
being charged by landlords of first-class buildings in the Central
Business District of Glendale. Tenant may purchase validations in 20
minute increments from Landlord at the lowest rate charged by Landlord
to its other tenants and Tenant may elect to validate such parking for
its visitors. Tenant shall comply with the Parking Rules and
Regulations attached hereto as Exhibit "I", which are hereby
incorporated herein by reference and made a part hereof, and other
additional reasonable parking rules and regulations promulgated from
time to time by Landlord which are not inconsistent with the foregoing,
which are enforced in a non-discriminatory manner and which do not
materially increase Tenant's obligations (including with respect to the
payment of costs) or decrease Landlord's obligations hereunder.
(g) The rate for any additional Reserved Parking Passes
pursuant to Section 26(b) shall be Seventy-Five Dollars ($75.00) per
month per pass (before any applicable taxes) for the period from the
Commencement Date until the first anniversary of the Commencement Date;
for the period from the first anniversary of the Commencement Date
until the second anniversary of the Commencement Date, such rate shall
be Eighty Dollars ($80.00) per month per pass (before any applicable
taxes); and for the period from the second anniversary of the
Commencement Date until the third anniversary of the Commencement Date,
such rate shall be Eighty-Five Dollars ($85.00) per month per pass
(before any applicable taxes) and, commencing on the third (3rd)
anniversary of the Commencement Date ("TACD"), the rate shall be the
prevailing market rate for Reserved Parking Passes in comparable
Buildings but in no event less than Eighty-Five Dollars ($85.00) per
month per Reserved Parking Pass (before any applicable taxes). Except
as expressly provided above, in no event shall the rate for the
Reserved Parking Passes increase by more than ten percent (10%) per
annum on a cumulative and compounded basis, computed on that TACD using
$85.00 as a base so that the parking charge in the fourth (4th) year
could not exceed Ninety-three and 50/100 ($93.50), and the parking
charge in the fifth (5th) year could not exceed One Hundred Two and
85/100 Dollars ($102.85), etc."
4. Parking REA. Notwithstanding anything to the contrary
contained in this First Amendment or the Original Lease, Landlord, as Lot 1
Owner under that certain Parking Structure Expansion and Easement Agreement
("Parking REA") dated as of April 17, 2001, will not approve any plans for
reconstruction or modification of the Existing Parking Structure or approve any
Major Decision under the Parking REA, that would reduce the number of parking
spaces that have been historically used by Tenant during the Term of the
Original Lease or that are then actually being used by Tenant as of the date of
the proposed reconstruction or
4
modification of the Existing Parking Structure or of the proposed Major
Decision, as the case may be. In addition, notwithstanding anything to the
contrary contained in the Parking REA, Tenant shall have all approval and
consent rights of BARSI in connection with the removal and relocation of any
automated teller machines pursuant to Section 6.7 of the Parking REA.
5. Non-Impairment. Except as expressly amended by this First
Amendment, the Original Lease remains unmodified and in full force and effect.
6. Counterparts; Telefacsimile Execution. This First Amendment
may be executed in counterparts, each of which shall be deemed to be a part of
an original and all of which together shall constitute one (1) agreement.
Delivery of an executed counterpart of this First Amendment by telefacsimile
shall be equally as effective as delivery of an original of this First
Amendment. Any party delivering an executed counterpart of this First Amendment
by telefacsimile also shall deliver an original counterpart of this First
Amendment, but the failure to deliver an original counterpart shall not affect
the validity, enforceability and binding effect of this First Amendment.
Signature pages may be detached from any counterpart of this First Amendment and
attached to a single copy of this First Amendment to physically form one (1)
document.
5
IN WITNESS WHEREOF, the parties have executed this First
Amendment as of the date first written above.
LANDLORD:
XXXXXXX PARTNERS 611 - N. BRAND LLC,
a Delaware limited liability company
By: Xxxxxxx Partners - Glendale Center, LLC,
a California limited liability company
By: Xxxxxxx Partners - Glendale, LLC,
a California limited liability company
By: Xxxxxxx Partners-III, Inc.,
a California corporation
By:________________________________
Xxxxxx X. Xxxxxxx III
By: BankAmerica Realty Services, Inc.,
a Delaware corporation
By: ____________________________________
Name: __________________________________
Its: ___________________________________
By: ____________________________________
Name: __________________________________
Its: ___________________________________
TENANT:
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION
By: ______________________________
Its: _________________________
By: ______________________________
Its: _________________________
6
Exhibit D
AMENDMENT TO OPERATING AGREEMENT
Exhibit D
SECOND AMENDMENT TO AMENDED AND RESTATED
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
(XXXXXXX PARTNERS-GLENDALE CENTER, LLC)
THIS SECOND AMENDMENT TO AMENDED AND RESTATED LIMITED LIABILITY COMPANY
OPERATING AGREEMENT (this "Amendment") is dated as of May __, 2003, and is
entered into by and between Xxxxxxx Partners - Glendale, LLC, a California
limited liability company ("MP"), and BankAmerica Realty Services, Inc., a
Delaware corporation ("BARSI").
RECITALS
A. MP and BARSI entered into that certain Amended and Restated
Operating Agreement dated as of March 5, 1996, as amended by that certain
Amendment to Amended and Restated Limited Liability Operating Agreement dated as
of December 11, 2000 (as amended, the "Operating Agreement"), concerning the
establishment and operation of Xxxxxxx Partners-Glendale Center, LLC, a
California limited liability company (the "Company"). MP and BARSI are the sole
members of the Company.
X. Xxxxxxx Partners-611 N. Brand LLC, a Delaware limited liability
company ("Xxxxxxx 611"), owns and operates an office building project commonly
known as "Glendale Center" situated on Brand Boulevard in the City of Glendale,
State of California (the "Project"). Company is the sole member of Xxxxxxx 611.
C. MP and BARSI have entered into that certain Agreement for Purchase
and Sale of Membership Interest and Joint Escrow Instructions dated as of May ,
2003 (the "Purchase Agreement"), whereby MP has agreed to purchase from BARSI
and BARSI has agreed to sell to MP all of BARSI's Membership Interest in the
Company under the Operating Agreement in accordance with the terms and
conditions of the Purchase Agreement.
D. Pursuant to the Purchase Agreement, MP and BARSI desire to amend the
Operating Agreement as provided in this Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of the promises, covenants and
agreements set forth in this Amendment and the Operating Agreement and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Defined Terms. Defined terms are indicated in this Amendment by
initial capital letters. Except as specifically provided otherwise in this
Amendment, defined terms shall have the same meaning in this Amendment as they
do in the Operating Agreement.
2. MP's Waiver. MP hereby waives any and all of MP's first rights of
negotiation, offer and refusal and rights of purchase and sale under the
Operating Agreement in connection with any proposed sale of the Project or
BARSI's Membership Interest in the Company as set forth in Sections 9.5(c),
9.6(a), 9.6(b), 20.3, 20.4, 22.1(e) and 22.6 of the Operating Agreement if MP
fails for any reason to acquire BARSI's Membership Interest in the Company and
pay to BARSI the Purchase Price (as defined in the Purchase Agreement) and all
other amounts payable to BARSI on or before the Closing Date (as defined in the
Purchase Agreement) in accordance with the terms and conditions of the Purchase
Agreement, except due to a default by BARSI under the Purchase Agreement after
expiration of all notice and cure periods under the Purchase Agreement or the
failure of a condition that benefits MP under Section 1.4.1 of the Agreement.
1
3. Nonimpairment. Except as specifically provided in this Amendment,
the Operating Agreement is unchanged and shall remain in full force and effect
and shall be binding upon the parties in accordance with its terms.
4. Counterparts; Telefacsimile Execution. This Amendment may be
executed in counterparts, each of which shall be deemed to be a part of an
original and all of which together shall constitute one (1) agreement. Delivery
of an executed counterpart of this Amendment by telefacsimile shall be equally
as effective as delivery of an original of this Amendment. Any party delivering
an executed counterpart of this Amendment by telefacsimile also shall deliver an
original counterpart of this Amendment, but the failure to deliver an original
counterpart shall not affect the validity, enforceability and binding effect of
this Amendment. Signature pages may be detached from any counterpart of this
Amendment and attached to a single copy of this Amendment to physically form one
(1) document.
(Signature Page Follows Immediately)
2
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first set forth above.
"MP": "BARSI":
XXXXXXX PARTNERS - GLENDALE, LLC, BANKAMERICA REALTY SERVICES,
a California limited liability company INC., a Delaware corporation
By: Xxxxxxx Partners - III,
a California corporation By: ____________________________
Name: __________________________
Its: ___________________________
By: ______________________________
Xxxxxx X. Xxxxxxx By: ____________________________
Name: __________________________
Its: ___________________________
3
Exhibit E
ASSIGNMENT
Exhibit E
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Assignment") is made this
___ day of May, 2003, by and between BANKAMERICA REALTY SERVICES, INC., a
Delaware corporation ("Assignor"), and XXXXXXX PARTNERS--GLENDALE, LLC, a
California limited liability company ("Assignee"), with respect to the following
matters. Capitalized terms in this Assignment shall have the meanings as defined
herein, or, if not defined herein, shall have the meanings given such terms in
the Purchase Agreement (as defined below).
WITNESSETH:
WHEREAS, Assignor, as seller, and Assignee, as buyer, entered into that
certain Agreement for Purchase and Sale of Membership Interest and Joint Escrow
Instructions dated as of May , 2003 ("Purchase Agreement"), whereby Assignor has
agreed to sell to Assignee and Assignee has agreed to purchase from Assignor all
of Assignor's Membership Interests in the Company under the Operating Agreement.
WHEREAS, Assignor wishes to transfer all of its estate, right, title
and interest and delegate all of its obligations and responsibilities in, to and
under Assignor's Membership Interest in the Company under the Operating
Agreement (collectively, the "Assigned Property") to Assignee.
AGREEMENT
NOW, THEREFORE, incorporating the foregoing recitals, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows.
1. Assignment. Assignor hereby assigns, sells, transfers, sets
over and delivers unto Assignee all of Assignor's estate, right, title and
interest and delegates unto Assignee all of Assignor's obligations and
responsibilities in, to and under the Assigned Property, in its "as-is"
condition and without representation or warranty of any kind other than those,
if any, provided for in the Purchase Agreement, and Assignee hereby accepts such
assignment. Assignor hereby covenants that Assignor will, at any time and from
time to time, upon written request therefor, execute and deliver to Assignee,
Assignee's successors, nominees and assigns, such documents as Assignee and
Assignee's successors, nominees and assigns may reasonably request in order to
fully effectuate the assignment contemplated herein, and to protect Assignee's
right, title and interest in and to the Assigned Property.
2. Assumption. By accepting this Assignment, Assignee hereby
assumes the performance of all of the terms, covenants, conditions, obligations
and responsibilities imposed upon Assignor in connection with the Assigned
Property arising on and after the Close of Escrow.
3. Quitclaim. Assignor hereby quitclaims and releases all of
Assignor's estate, right, title, interest, obligations and responsibilities in,
to and under Assignor's Membership Interest in the Company and the Project.
Notwithstanding the foregoing, the quitclaim and release contained in this
Section 3 shall not be applicable to the rights and remedies of Bank of America
NT&SA under (i) that certain Amended and Restated Glendale Center Office Lease
dated as of March 5, 1996 (as amended, the B of A Lease"), (ii) that certain
Parking Structure Expansion and Easement Agreement dated as of April 17,
2001("Parking REA") or (iii) any other document or agreement executed in
connection with the B of A Lease and/or the Parking REA.
4. Attorneys' Fees. In the event of the bringing of any
action or suit by a party hereto against another party hereunder by reason of
any breach of any of the covenants, conditions, agreements or provisions on the
part of the other party arising out of this Assignment, then in that event the
prevailing party shall be entitled to have and recover of and from the other
party all reasonable costs and expenses of the action or suit, including
reasonable attorneys' fees.
5. Successors and Assigns. This Assignment shall be binding
upon and inure to the benefit of the successors, assignees, personal
representatives, heirs and legatees of all the respective parties hereto.
6. Governing Law. This Assignment shall be governed by,
interpreted under, and construed and enforceable in accordance with, the laws of
the state of California.
7. Counterparts. This Assignment may be executed in
counterparts, each of which shall be deemed an original, but all of which,
together, shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Assignment as of the
date first above written.
"ASSIGNOR"
BankAmerica Realty Services, Inc.,
a Delaware corporation
By: _______________________________
Its: _______________________________
By: _______________________________
Its: _______________________________
"ASSIGNEE"
Xxxxxxx Partners -- Glendale, LLC,
a California limited liability company
By: Xxxxxxx Partners -- III,
a California corporation
By: __________________________
Xxxxxx X. Xxxxxxx
