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EXHIBIT 10.11
AGREEMENT TO CONTRIBUTE
AND ESCROW INSTRUCTIONS
Between
WESTWOOD CENTER,
A CALIFORNIA LIMITED PARTNERSHIP
PARTNERSHIP
and
ARDEN REALTY LIMITED PARTNERSHIP
A MARYLAND LIMITED PARTNERSHIP
CONTRIBUTOR
Covering
0000 XXXXXXX XXXXXX
XXXXXXXX, XXXXXXXXXX
SEPTEMBER 26, 1997
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AGREEMENT TO CONTRIBUTE CAPITAL
AND ESCROW INSTRUCTIONS
THIS AGREEMENT TO CONTRIBUTE CAPITAL AND ESCROW INSTRUCTIONS ("Agreement")
is made and entered into this 26th day of September, 1997 by and between
WESTWOOD CENTER, a California limited partnership ("Partnership"), and ARDEN
REALTY LIMITED PARTNERSHIP, a Maryland limited partnership ("Contributor"), with
reference to the following facts:
A. Partnership is the fee owner of that certain parcel of real property
(the "Real Property"), and the improvements thereon, for informational purposes
only, are a Twenty-Two (22)-story office building containing approximately
271,082 net rentable square feet exclusive of ground floor retail space, other
facilities, fixtures, paving and surfacing thereon or associated therewith, with
structured automobile parking with a total of approximately 586 striped parking
spaces (collectively, the "Improvements"). The Real Property and Improvements
are located at 0000 Xxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, and is
legally described in Exhibit "A" attached hereto and forming a part hereof.
B. The Partnership was created by that certain Certificate and Articles of
Limited Partnership of Wilshire Westwood Office Center dated June 8, 1965 as
amended by eleven (11) separate amendments more particularly described in
Exhibit "B" attached hereto and forming a part hereof.
C. Partnership is interested in raising capital for the rehabilitation and
renovation of the Improvements and to retire certain secured and unsecured
indebtedness of the Partnership and Contributor is interested in contributing
capital and thereby obtaining a substantial interest in the Partnership, all on
the terms, covenants and conditions hereinafter set forth.
NOW, THEREFORE, with reference to the foregoing recitals and in reliance
thereon and in consideration of the contribution amount hereinbelow set forth,
and the other terms, covenants and conditions set forth below, and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, it is mutually covenanted and agreed by Partnership and
Contributor as follows:
1. PARTNERSHIP INTEREST. Subject to all of the terms and conditions of
this Agreement and for the amount of capital to be contributed as set forth, on
Closing (as hereinafter defined), Partnership shall admit Contributor, or cause
Contributor to be admitted, as a General Partner of Partnership, and Contributor
shall contribute to Partnership
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as capital the cash sum as set forth in Paragraph 2 below, and thereby acquire a
ninety-seven and one-half percent (97.5%) interest in the profits, losses,
capital and distributions of and to the Partnership ("Partnership Interest").
Concurrently with the admission of Contributor as a general partner of the
Partnership, Contributor and the other partners of the Partnership shall enter
into an Amended and Restated Agreement of Limited Partnership a copy of which is
attached hereto marked Exhibit "C" and incorporated herein by this reference.
The Partnership owns and at the Closing will own all of the following:
(a) The Real Property and the Improvements, together with all
easements, hereditaments and appurtenances thereto and the tenancies and
occupancies;
(b) All of the personal property (the "Personal Property") located
at, attached or appurtenant to, or used in connection with the operation or
maintenance of the Real Property and/or the Improvements and owned by the
Partnership (the "Inventory") other than any property owned by the tenants or by
independent contractors performing services at the Real Property and other than
the furniture used by A.S. Xxxxxxxx, and Xx X. Xxxxxxxx and the software
property management program used by the Partnership (after all data with respect
to the Property has been copied). The parties acknowledge and agree that any
artifacts, mineral specimens and collectibles in the offices of A.S. Xxxxxxxx,
Xx. X. Xxxxxxxx and Xxxxx Xxxxxxxx or elsewhere in the building and the
furniture utilized by Xxxxx Xxxxxxxx are not assets of the Partnership.
(c) The lessor's interest in all leases to tenants leasing space in
the Improvements (the "Tenant Leases") that are set forth on Exhibit "D".
The Partnership also has the benefit of the following:
(d) Those certain service and other agreements more particularly
described in Exhibit "E" attached hereto and made a part hereof; and
(e) All other right, title and interest of Partnership constituting
part and parcel of the Property (as hereinafter defined), including, but not
limited to, trade names, logos, easements, licenses, permits, air rights,
certificates of occupancy, warranties, rights-of-way, signs, trademarks,
telephone listings and numbers, sewer agreements, water line agreements, utility
agreements, water rights and oil, gas and mineral rights (collectively, the
"Intangibles") to the extent assignable or transferable.
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Reference herein to the "Property" shall include all of the Real Property,
Improvements, Personal Property, Tenant Leases and the Intangibles described in
subparagraphs (a) through (e) above.
2. AMOUNT OF CONTRIBUTION. The amount of the capital contribution (the
"Capital Contribution") to be contributed by Contributor to Partnership for the
Partnership Interest is the amount of Twenty-Eight Million Seven Hundred
Sixty-Two Thousand Five Hundred and No/100 Dollars ($28,762,500.00), payable as
follows:
(a) Upon the opening of Escrow (as hereinafter set forth)
Contributor shall deliver to Escrow Agent (as hereinafter defined) cash in the
sum of Five Hundred Thousand Dollars ($500,000.00) ("Deposit") which shall be
held by Escrow Agent as security for the full performance by Contributor of its
obligations hereunder and on account of the Capital Contribution payable at
Closing, subject to the following terms and conditions:
(i) If Closing occurs, then the Deposit shall be transferred
to the Partnership and shall be applied to the Capital Contribution;
(ii) If Closing does not occur and if Partnership shall be
entitled to liquidated damages as provided in Paragraph 10(b) hereof,
Partnership shall be entitled to the Deposit; and
(iii) If the Closing does not occur and Contributor shall be
entitled to the return of the Deposit as provided in this Agreement, the same
shall be returned to Contributor.
(b) Contributor shall pay to Partnership through Escrow Agent at
Closing in immediately available funds an amount equal to the balance of the
Capital Contribution, plus (or minus) the net amount of all costs, expenses,
adjustments and prorations to be credited (or debited) to Contributor pursuant
to this Agreement; provided, however, Contributor shall reduce the cash portion
of the Capital Contribution by the unpaid principal balance and all accrued but
unpaid interest on the Closing Date (as hereinafter defined) on that certain
Partnership indebtedness evidenced by that certain promissory note dated June 5,
1985 in the original principal amount of $16,000,000 in favor of The Prudential
Insurance Company of America, Loan Number 2190495, ("Note") and secured by a
Deed of Trust covering the Property ("Deed of Trust"), hereinafter collectively
referred to as the "Prudential Loan," and by agreeing to replace the Prudential
Loan with other secured indebtedness in the principal amount of not less than
$13,000,000 ("Refinanced Debt") at such time as such
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Prudential Loan matures or is accelerated so that at closing and as provided in
the Amended and Restated Agreement of Limited Partnership, the Partnership would
have secured debt of not less than the amount of the Refinanced Debt with the
requirement by such lender that Xx X. Xxxxxxxx and A. S. Xxxxxxxx (collectively,
"Guarantors") give concurrent "bottom dollar" guaranties with respect to the
refinanced debt in the amount of $10,700,000 and $2,300,000, respectively. Such
"bottom dollar" guaranties must provide that (i) the lender must first foreclose
on the Property and reduce the amount of the guaranties by the amount of the
proceeds from such foreclosure sale before exercising its rights against
Guarantors; (ii) Guarantors will have no personal liability to the extent of any
reduction in value of the Property due to an earthquake; and (iii) each "bottom
dollar" guaranty shall terminate as to each such Guarantor, thirty (30) days
after the death of that particular Guarantor or his spouse.
(c) The Deposit shall be at all times invested by Escrow Agent in
the following investments ("Approved Investments"): (i) United States Treasury
obligations, (ii) United States Treasury-backed repurchase agreements issued by
a major money center banking institution reasonably acceptable to Partnership,
(iii) Certificates of Deposit or Money Market Accounts of institutions whose
deposits are insured by the FDIC or (iv) such other manner as may be reasonably
agreed to by Partnership and Contributor. The Deposit shall be disposed of by
Escrow Agent only as provided in this Agreement.
(d) All payments required to be made under this Agreement shall be
made in U.S. funds.
3. ESCROW.
(a) OPENING OF ESCROW. As soon as commercially reasonable after
their full and complete execution and delivery of this Agreement ("Effective
Date") and in any event not later than three (3) business days thereafter,
Partnership and Contributor shall open an escrow (the "Escrow") with Commerce
Escrow Company, Attention: Xxxx Xxxxxx ("Escrow Agent"), through which the
Capital Contribution to the Partnership shall be consummated. A fully executed
copy of this Agreement shall be deposited with Escrow Agent, duly executed by
Partnership, Contributor and Escrow Agent, to serve as Escrow instructions to
Escrow Agent, and Escrow Agent shall be and is hereby authorized and instructed
to deliver pursuant to the terms of this Agreement the documents and monies to
be deposited into the Escrow. Escrow Agent may attach to this Agreement Escrow
Agent's standard form escrow agreement, to the extent that the same is
consistent with the terms hereof, and are reasonably approved by Partnership and
Contributor. Escrow Agent shall immediately, upon receipt of such duly executed
copy of this Agreement, notify Partnership
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and Contributor of the opening of Escrow. Should either party fail to open
Escrow in accordance with the provisions of this Paragraph 3(a), such failure
shall constitute a material breach of this Agreement.
(b) CLOSING OF ESCROW. Escrow shall close not later than December
10, 1997, but no more than ten (10) business days following the expiration of
the Approval Period, provided the Contributor's Conditions Precedent to Closing
as set forth in Paragraph 8 hereof have been satisfied and the Partnership's
conditions to Closing set forth in Paragraph 9 have been satisfied. The term
"Closing" as used herein shall be deemed to be the date upon which the
respective Conditions Precedent to Contributor's Obligation to Close Escrow (set
forth in Paragraph 8 below) and the Conditions Precedent to Partnership's
Obligation to Close Escrow (set forth in Paragraph 9 below) have been satisfied
(or have been waived in writing), the Amended and Restated Agreement of Limited
Partnership ("Restated Partnership Agreement" herein) hereinafter referred to is
executed and an Amended Certificate of Limited Partnership is filed for record
in the office of the Secretary of State of the State of California and the
Capital Contribution required to be made pursuant to this Agreement is held by
Escrow Agent for disbursement to Partnership. If the Closing as provided herein
does not occur, this Agreement and the Escrow shall be cancelled and terminated
and thereafter neither party shall have any further obligation or liability to
the other party, except as expressly set forth in this Agreement.
4. TITLE MATTERS.
(a) TITLE REPORT.
(i) Partnership has ordered and delivered to Contributor a
CLTA Preliminary Title Report covering the Real Property and the Improvements,
which may state that it is subject to any matter that would be disclosed by a
survey (the "Preliminary Title Report"), issued by First American Title Company
of Los Angeles ("Title Agent"), together with true and legible copies of all
documents evidencing matters of record shown as exceptions to title thereon.
Contributor has caused an ALTA Survey of the Real Property and Improvements
("Survey") to be made at Contributor's sole cost and expense (and upon the
Effective Date shall deliver a copy of the Survey to Partnership). Contributor
shall have the right to reasonably object to any exceptions contained in the
Preliminary Title Report or Survey by giving notice to Partnership before the
expiration of the Approval Period. Notwithstanding any of the foregoing,
Partnership shall at Closing (but shall not be obligated prior thereto) remove
of record all tax and mechanic's liens (except only for the liens of the taxes
and assessments not yet due or payable), at its
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sole cost and expense. Unless Contributor gives written notice prior to the
expiration of the Approval Period that it disapproves any such exceptions to
title matters, stating the exceptions so disapproved, Contributor shall be
deemed to have approved said exceptions. Contributor's approval of the
Preliminary Title Report shall include survey matters; provided, however, such
approval shall not include any supplementary title reports issued by Title
Company after the expiration of the Approval Period. Contributor shall have
three (3) business days following receipt of same in which to disapprove any
such supplementary report. If for any reason, on or before the Closing Date
Partnership does not cause such exceptions to title or survey matters which
Contributor timely disapproves (to the extent Contributor is permitted hereunder
to so disapprove) to be removed at no cost or expense to Contributor
(Partnership having the right but not the obligation to do so), the obligation
of Partnership to admit Contributor, and Contributor to make its Capital
Contribution to, the Partnership as herein provided shall terminate (and
Partnership and Contributor shall have no further obligations in connection
herewith). Contributor shall have the option to waive the condition precedent
set forth in this paragraph 4(a) by notice to Partnership. In the event of such
waiver, such condition shall be deemed satisfied. All matters set forth on the
Preliminary Title Report, the Survey which are not timely objected to by
Contributor shall be permitted exceptions to title and shall additionally
include (i) any title or survey matters objected to by Contributor, which
objections are subsequently waived in writing by Contributor, and (ii) any title
or survey matters objected to by Contributor in accordance with the terms and
provisions of this Agreement, which objections are cured to Contributor's
satisfaction, (iii) real estate taxes and assessments not yet due and payable;
and (iv) the printed exceptions which appear in the standard form ALTA owner's
policy of title insurance (with extended coverage).
(ii) If at the date of Closing there are any liens or
encumbrances (other than the Prudential Loan) that the Partnership is obligated
to pay and discharge, Escrow Agent may use any portion of the Capital
Contribution to satisfy the same (if the same are not bonded-over or otherwise
satisfied by title endorsement), provided Partnership shall simultaneously
either deliver to Escrow Agent at Closing title instruments in recordable form
sufficient to satisfy such liens and encumbrances of record, together with the
cost of recording or filing said instruments.
(b) TITLE POLICY. The Title Policy shall be First American Title
COMPANY's ALTA Owner's policy with liability in the amount of Twenty-Nine
Million Five Hundred and No/100 Dollars ($29,500,000.00), showing fee title to
the Real Property and the Improvements as vested in the Partnership,
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subject only to the permitted exceptions specified in Paragraph 4(a) above.
5. DELIVERY OF INFORMATION.
(a) The Partnership has delivered or has caused to be delivered or
made available to Contributor at the Property to the extent they are in
Partnership's possession or under its control, the following:
(i) Complete copies of all of the Tenant Leases and all
amendments thereto, a schedule of which is attached hereto as Exhibit "D".
(ii) To the extent in Partnership's possession or control,
evidence that the Real Property complies with the Subdivision Map Act of
California, the Property has all of the necessary valid Certificates of
Occupancy and otherwise complies with all construction and operational laws,
codes, ordinances, regulations and conditional use permits.
(iii) The loss history of the Property pertaining to any
property damage or personal injury suffered for which an insurance claim of more
than Fifty Thousand Dollars ($50,000) was submitted by Partnership at any time
after January 1, 1995 to the extent available to Partnership;
(iv) To the extent in Partnership's possession or control, a
set of all "as built" plans, specifications and structural drawings (including,
but not limited to, mechanical, electrical, air conditioning, landscaping and
sprinkler drawings), third-party soil, geological, seismic, environmental and
hazardous materials and asbestos studies or reports, relating to the
Improvements or the subsurface conditions, grading plans, water table or other
matters bearing upon condition of the Property;
(v) All electricity and property tax bills for the period
beginning January 1, 1995 to the extent available to Partnership;
(vi) Statements of income and expense for the Property for
the calendar year 1995, 1996 and current year to date to the extent available to
Partnership;
(vii) All warranties and operating manuals that Partnership
may have from vendors, contractors or servicing agents with respect to the
physical condition of the Improvements, the Property or any portion thereof or
the equipment located therein;
(viii) Complete copies of all service, offsite parking rights
upon and other contracts pertaining to the
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Property (including, but not limited to, HVAC, elevator, landscape, management,
leasing brokerage and parking) in respect to which Partnership is obligated (the
"Service Contracts");
(ix) A list of all personal property (including supplies)
owned or leased by Partnership and used in connection with the operation,
maintenance and repair of the Property, but excluding any property owned by the
Tenants or by independent contractors performing services at the Real Property
and excluding furniture utilized by Xx X. Xxxxxxxx and A.S. Xxxxxxxx in their
offices or elsewhere in the Improvements which shall be distributed to them
prior to the Closing. The parties acknowledge and agree that any artifacts,
mineral specimens or collectibles in such offices or elsewhere in the building
and the furniture utilized by Xxxxx Xxxxxxxx are not assets of the Partnership.
(b) Contributor shall have from the date hereof until 5:00 P.M. on
the date that is forty (40) business days following the Effective Date, but in
any event not later than December 1, 1997 (the "Approval Period") in which to
approve or disapprove all matters and things that are subject to Contributor's
rights of review, inspection and approval hereunder. Contributor's failure
either to approve or disapprove said information before the expiration of the
Approval Period as aforesaid shall be deemed its approval thereof. If
Contributor disapproves any of said information, Contributor shall notify
Partnership in writing thereof within the time period specified above, whereupon
this Agreement shall terminate except as to Paragraph 6. However,
notwithstanding the foregoing, if Contributor disapproves any Service Contract,
this Agreement shall not terminate and Partnership shall lawfully terminate such
Service Contract not later than thirty (30) days after the Closing, if the same
can be so terminated and provided Contributor shall pay all cancellation or
termination penalties, fees or costs in connection therewith.
(c) At Contributor's request at any time from and after the date
hereof until the date that is one (1) year after the Closing Date, the existing
general partners of the Partnership shall, at Contributor's expense, cause to be
provided to Contributor's designated independent auditor reasonable access to
the books and records of the Partnership and Property, regarding the period for
which Contributor is required to have audited financial statements prepared with
respect to the Property as may be required by the Securities and Exchange
Commission, but only to the extent that such books, records and related
information are in Partnership's possession or control and relate to the period
during which Partnership held title to the Property.
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6. INSPECTIONS AND APPROVAL BY CONTRIBUTOR.
(a) From and after the date hereof, Contributor and its agents,
employees and contractors shall be afforded full access to the Property during
normal business hours and upon twenty-four (24) hours prior notice for the
purpose of making such investigations as Contributor deems prudent with respect
to the physical condition of the Property, including, but not limited to,
engineering tests, subject to the rights of tenants in possession. Partnership
shall reasonably cooperate to assist Contributor in completing such inspection.
However, Contributor agrees not to contact any of Partnership's tenants without
Partnership's prior consent and to hold Partnership harmless from and against
any loss, cost, damage, claim or expense suffered by Partnership or the Property
or third parties and caused by Contributor's said investigations (the foregoing
obligation surviving any termination of this Agreement). In no event shall
Contributor make any intrusive physical testing (environmental, structural or
otherwise) at the Property (such as soil borings or the like) without
Partnership's prior consent. Contributor is allowed, however, to commence and
undertake the seismic testing and inspection of the movement beam welds and
related asbestos containment as soon as possible after the Effective Date. In
this connection Contributor agrees to utilize the services of CTL Environmental
to monitor asbestos levels if the latter's bid for such services is comparable
to Contributor's other bids for such work. Contributor shall promptly restore
the Property to its condition immediately prior to such investigations. In
addition, Contributor agrees not to unreasonably interfere with the use and
enjoyment of the Property by Partnership, its agents, representatives, employees
or any tenants or other occupants or visitors. Partnership shall have the right,
at its option, to cause a representative of Partnership to be present at all
inspections, reviews and examinations conducted hereunder. Contributor shall
deliver a certificate of insurance to the Partnership demonstrating at least
$3,000,000 of liability coverage in effect. Contributor shall indemnify and hold
the Partnership and its partners harmless from all losses, costs, expenses and
obligations and mechanic's liens in connection with such inspections and testing
and any damages or injury in connection therewith by Contributor or its
employees, agents or independent contractors. This indemnity shall survive any
termination of this Agreement. At the request of Partnership, Contributor shall
promptly deliver to Partnership true, accurate and complete copies of any
written reports relating to the Property prepared for or on behalf of
Contributor by any third party and, in the event of termination hereunder, shall
return all documents and other materials furnished to or on behalf of
Contributor by Partnership hereunder. Contributor shall keep all information or
data received or discovered in connection with any of the inspections, reviews
or
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examinations strictly confidential; provided, however, that Contributor shall
be entitled to disclose such information to Contributor's attorneys,
consultants, accountants and prospective debt and equity financing sources who
reasonably need to be informed in connection with Contributor's determinations
hereunder.
(b) From and after the date hereof until Closing, Contributor and its
agents shall be afforded full opportunity by Partnership during normal business
hours and upon twenty-four (24) hours prior notice to examine all operating
books and records that relate to the Property (including all specifications and
as-built drawings to the extent they are in Partnership's possession), all
building permits, certificates of occupancy, soil reports, engineers' reports
and studies, and similar information relating to the Property or its management,
operation, maintenance or use, and all warranties and operating manuals that
Partnership may have from vendors, contractors or servicing agents with respect
to the physical condition of the Property or any portion thereof or the
equipment located thereon.
(c) Contributor shall have until the expiration of Approval Period
in which to approve or disapprove the matters referred to in subparagraphs (a)
and (b) above. Furthermore, Contributor shall have until the expiration of the
Approval Period in which to approve or disapprove of a market and leasing survey
of the Property and the surrounding leasing market (including its own economic
analysis of the feasibility of the Property for Contributor's particular use
thereof). Contributor's disapproval shall be in writing and shall be delivered
to Partnership prior to the expiration of the Approval Period. Failure to
deliver such written disapproval shall be deemed Contributor's approval of said
matters.
7. OPERATION OF PROPERTY PENDING CLOSING.
(a) TENANT LEASES. Partnership has leased portions of the Property to
various occupancy tenants. From and after the date of execution of this
Agreement and until the Closing Date Partnership shall not enter into any new
leases or amend or extend, terminate or accept the surrender of any existing
tenancies or approve any subleases without the prior written consent of
Contributor (which consent shall not be unreasonably delayed or withheld);
provided, however, Partnership shall have the power and authority to enter into
leases with terms of one (1) year or less (except to affiliates of the partners
of the Partnership) which provide for rent which qualifies as "rents from real
property" under IRC Section 856(d) and which require no significant tenant
improvement allowance in excess of painting, papering and carpet cleaning from
Partnership without Contributor's prior consent. In requesting such consent,
Partnership shall inform Contributor in writing of
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the amount, if any, proposed to be required to pay for, or any allowance
proposed to be given for, tenant improvement work, any leasing commissions and
fees, in connection with such lease and any rent concessions. Also included in
the request for consent, shall be Partnership's proposed draft of the lease or
amendment agreement. The failure of Contributor to respond within three (3)
business days after written request for any such approval shall be deemed to
constitute approval. Partnership shall not collect in advance any rent or other
sum due under any of the Tenant Leases, except for collection of current rents
no more than one month in advance.
(b) INSURANCE POLICIES. Partnership shall use its best efforts to
keep all of the insurance policies covering the Property (or substantially
equivalent coverage) in full force and effect between the date of this Agreement
and Closing (the "Insurance Policies").
(c) SERVICE CONTRACTS. Partnership shall have the right to renew or
replace Service Contracts that expire prior to Closing or to enter into new
Service Contracts for emergency purposes if deemed reasonably necessary by
Partnership for any term provided that such Service Contracts are terminable by
Partnership or its successors in interest upon not more than thirty (30) days'
notice to the service provider.
(d) PROPERTY MANAGEMENT. Partnership shall maintain the Property in
the same manner as prior hereto pursuant to its normal course of business (such
maintenance obligations not including extraordinary capital expenditures or
expenditures not incurred in such normal course of business), subject to
reasonable wear and tear and further subject to destruction by casualty or other
events beyond the reasonable control of Partnership.
(e) RELEASE. On or prior to the Closing, the Partnership shall
execute and deliver to the existing General Partners a general release in the
form of Exhibit "L":
(f) ESTABLISHMENT OF RESERVES. The Partnership shall have the right
to establish a reserve account of Two Hundred Thousand Dollars ($200,000) for
the payment of expenses relating to claims, including the claims set forth on
Exhibit "I", as well as for the discharge and/or payment of any such claims, or
claims arising out of or in connection with any matters or events which have
occurred or facts which came into existence prior to the Closing Date. The
establishment of such reserve shall not constitute nor should it be construed to
be an admission of any liability whatsoever by the Partnership and/or the
General Partners, it being the purpose of said reserve solely to protect against
contingencies. Furthermore, such reserve is being established at the request of
the existing general partners of the Partnership
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and the establishment of such reserve shall not constitute nor shall it be
construed to be an acknowledgement or agreement by Contributor as to the
adequacy of such reserve. The establishment of such reserve shall in no way
limit the obligations of the Partnership, the existing general partners and A.S.
Xxxxxxxx and Xx X. Xxxxxxxx, as applicable, under Sections 8(c), 13(a)(v) and
15(g) hereof.
8. CONDITIONS PRECEDENT TO CONTRIBUTOR'S OBLIGATION TO CLOSE ESCROW. The
obligation of Contributor to consummate the transactions contemplated hereby is
subject to the following conditions, inserted for Contributor's sole benefit and
that may be waived by Contributor only in writing at its sole option. A failure
of a condition precedent shall not constitute a default by the Partnership or
any of its partners, other than an intentional default under either clause (a)
or clause (d) below. Said conditions are as follows:
(a) REPRESENTATIONS AND WARRANTIES TRUE AT CLOSING. The
representations and warranties of Partnership contained in Paragraph 13 of this
Agreement shall be true on the date of Closing in all material respects as
though such representations and warranties were made on and as of such date.
(b) DELIVERY OF TENANT ESTOPPELS. Partnership shall have delivered
to Contributor estoppel letters (the "Tenant Estoppels") from tenants
representing 85% of the leased area and from all tenants leasing more than 3,500
square feet in the Improvements in substantially the form of Exhibit "G"
attached hereto and forming a part hereof, consistent in all material respects
with the information to be provided by Partnership hereunder and certifying
inter alia to the effect that there are no defaults by landlord under the lease
known to tenant thereunder; that such lease is unmodified except as may be set
forth therein and in full force and effect; that there are no defenses or
offsets against the landlord known to tenant thereunder; and that rental is
current and has not been paid more than one month in advance. In the event the
requisite estoppels are not timely provided by the requisite tenants, the
General Partners may give estoppels to Contributor and will severally (5/6ths by
Xx X. Xxxxxxxx and 1/6th by A.S. Xxxxxxxx) warrant the accuracy thereof for a
period of one year following the Closing; and the foregoing shall satisfy this
condition.
(c) PARKING RIGHTS AGREEMENT. The Partnership shall have entered
into a binding and enforceable parking rights agreement ("Parking Rights
Agreement") with Xxxxxxxx Properties ("Xxxxxxxx Properties") (which currently
owns the improved real properties commonly known as 1127 through 0000 Xxxxxxx
Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx) memorializing, but limiting the parking rights
of Xxxxxxxx Properties and its
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successors in interest, and their tenants and their successors and agents,
employees and patrons in the Property substantially in accordance with the draft
Parking Rights Agreement attached hereto as Exhibit "M" and incorporated herein
by this reference.
(d) PARKING OPERATOR AGREEMENT. The Partnership shall have caused
its present parking garage operator to assign or transfer its rights to operate
the parking garage to an independent third party acceptable to Contributor's tax
counsel as to real estate investment trust tax matters.
(e) CLOSING CERTIFICATES FROM PARTNERSHIP AND GENERAL PARTNERS.
Partnership and the existing general partners thereof shall have delivered a
Closing Certificate to Contributor certifying to Contributor that, as of the
Closing Date, there are no unsecured liabilities of the Partnership, absolute or
contingent, which are in excess of $25,000 in the aggregate and which (1) have
not been disclosed to Contributor during the Approval Period and (2) have not
been adequately provided for out of the Partnership's existing capital
resources, accounts receivable, insurance coverage and the Capital Contribution
of Contributor; provided that the existing General Partners shall be severally
liable for said Closing Certificate as follows: A.S. Xxxxxxxx shall be liable as
to one-sixth and Xx X. Xxxxxxxx shall be liable as to five-sixths.
(f) COMPLIANCE WITH THIS AGREEMENT. Partnership shall have performed
and complied with in all material respects all agreements and conditions
required by this Agreement to be performed or complied with by it on or prior to
Closing.
(g) TITLE POLICY. Title Company shall be ready, willing and able to
issue the Title Policy required by Paragraph 4(b).
(h) CHANGE IN CONDITION. Subject to the provisions of Paragraphs
15(a) and 15(b) hereof, there shall exist no damage, destruction or condemnation
of the Property in excess of the threshold amounts, respectively, provided in
such Paragraphs prior to Closing,
(i) All required parties shall have signed the Amended and Restated
Partnership Agreement.
9. CONDITIONS PRECEDENT TO PARTNERSHIP'S OBLIGATION TO CLOSE ESCROW. The
obligation of Partnership to consummate the transactions contemplated hereby is
subject to the following conditions, inserted for Partnership's sole benefit and
that may be waived solely by Partnership only in writing at its sole option.
Said conditions are as follows:
13.
15
(a) APPROVAL OF LIMITED PARTNERS. The partners of the Partnership
and Unsecured Noteholders (as hereinafter defined in Section 13(a)(iv)(e)) shall
have unanimously approved the transactions contemplated by this Agreement prior
to the expiration of the Approval Period. Failure to obtain approval of the
Partners and the Unsecured Noteholders (other than A.S. Xxxxxxxx and Xx X.
Xxxxxxxx) shall not be a default under this Agreement.
(b) REPRESENTATIONS AND WARRANTIES TRUE AT CLOSING. The
representations and warranties of Contributor contained in this Agreement, or in
any certificate or document signed by Contributor pursuant to the provisions
hereof, shall be true on and as of Closing in all material respects as though
such representations and warranties were made on and as of such date.
(c) DELIVERY OF CAPITAL CONTRIBUTION AND DOCUMENTS. Contributor
shall have delivered all funds and documents to Escrow Holder required by it
hereunder to enable it to close the Escrow.
(d) COMPLIANCE WITH THIS AGREEMENT. Contributor shall have performed
and complied with all agreements and conditions required by this Agreement to be
performed or complied with by it on or prior to Closing.
(e) EXECUTION OF PARTNERSHIP AGREEMENT. All required parties shall
have signed the Amended and Restated Partnership Agreement.
10. REMEDY OF CONTRIBUTOR AND PARTNERSHIP UPON DEFAULT.
(a) REMEDIES OF CONTRIBUTOR. In the event that Partnership defaults
and fails to keep and perform each and every obligation, covenant and agreement
herein by Partnership to be kept or performed, then Contributor may, except as
otherwise provided in this Agreement, pursue such rights it may have against
Partnership and the Property either at law or in equity.
(b) REMEDY OF PARTNERSHIP. THE PARTIES HERETO, BEFORE ENTERING INTO
THIS TRANSACTION, HAVE BEEN CONCERNED WITH THE FACT THAT SUBSTANTIAL DAMAGES
WILL BE SUFFERED BY PARTNERSHIP IF CONTRIBUTOR SHOULD WRONGFULLY FAIL TO MAKE
THE CAPITAL CONTRIBUTION TO THE PARTNERSHIP. WITH THE FLUCTUATION IN VALUE OF
REAL PROPERTY, THE CURRENT AND HIGHLY UNPREDICTABLE STATE OF THE ECONOMY, THE
FLUCTUATING MONEY MARKET FOR REAL ESTATE LOANS OF ALL TYPES, AND OTHER FACTORS
THAT DIRECTLY AFFECT THE VALUE AND MARKETABILITY OF THE PROPERTY, IT IS REALIZED
BY THE PARTIES THAT IT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE, IF NOT
IMPOSSIBLE, TO ASCERTAIN WITH ANY DEGREE OF CERTAINTY PRIOR TO SIGNING THIS
14.
16
AGREEMENT THE AMOUNT OF DAMAGES THAT WOULD BE SUFFERED BY PARTNERSHIP IN THE
EVENT OF CONTRIBUTOR'S WRONGFUL FAILURE TO MAKE THE CAPITAL CONTRIBUTION TO THE
PARTNERSHIP. THE PARTIES, HAVING MADE DILIGENT BUT UNSUCCESSFUL ATTEMPTS TO
ASCERTAIN THE ACTUAL COMPENSATORY DAMAGES PARTNERSHIP WOULD SUFFER IN THE EVENT
OF CONTRIBUTOR'S WRONGFUL FAILURE TO CONTRIBUTE THE CAPITAL TO THE PARTNERSHIP
AS REQUIRED IN THIS AGREEMENT, HEREBY AGREE THAT THE REASONABLE ESTIMATE OF SAID
DAMAGES IS AN AMOUNT EQUAL TO THE DEPOSIT; AND IN THE EVENT OF CONTRIBUTOR'S
WRONGFUL FAILURE TO CONTRIBUTE THE CAPITAL TO THE PARTNERSHIP AS REQUIRED IN
THIS AGREEMENT, PARTNERSHIP SHALL BE ENTITLED TO RECEIVE AND RETAIN THE DEPOSIT
AS FULL LIQUIDATED DAMAGES, AND THAT PAYMENT OR TENDER TO PARTNERSHIP BY
CONTRIBUTOR OF SUCH AMOUNT SHALL, EXCEPT AS SET FORTH IN PARAGRAPHS 6 AND 16(F),
TERMINATE ALL OF PARTNERSHIP'S RIGHTS AND REMEDIES AT LAW OR IN EQUITY AGAINST
CONTRIBUTOR WITH RESPECT TO SUCH FAILURE TO PERFORM.
/s/ ASG ENH /s/ VJC
--------------- ---------------
PARTNERSHIP'S CONTRIBUTOR'S
INITIALS INITIALS
11. CLOSING PROCEDURE.
(a) At least one business day prior to the date of Closing,
Contributor shall have delivered to Escrow Agent counterpart executed originals
of the following documents and the following sums of money required to be
delivered by Contributor hereunder:
(i) The Capital Contribution in the manner set
forth in Paragraph 2(a);
(ii) Such funds as may be necessary to comply with
Contributor's obligations hereunder regarding prorations, costs and expenses;
(iii) Signed counterparts of the Restated Partnership
Agreement and an Amended Certificate of Limited Partnership; and
(iv) Signed counterparts of a Liability Agreement between
A.S. Xxxxxxxx, Xx X. Xxxxxxxx and Contributor in the form of Exhibit "H"
attached hereto and made a part hereof.
(b) At least one business day prior to the date of Closing,
Partnership and its Pre-Closing Partners shall have delivered or caused to be
delivered to Escrow Agent the following:
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(i) Such funds and agreements regarding conversion of
accrued interest to capital of the Partnership as may be necessary to comply
with such Pre-Closing Partners' obligations hereunder regarding their capital
accounts;
(ii) Signed counterparts of the Restated Partnership
Agreement and an Amended Certificate of Limited Partnership;
(iii) Signed counterparts of a Liability Agreement between
A.S. Xxxxxxxx, Xx X. Xxxxxxxx and Contributor in the form of Exhibit "H"
attached hereto and made a part hereof;
(iv) To the extent they are in Partnership's possession, a
complete set of all plans, specifications and as-built drawings, and all
building permits, certificates of occupancy, third-party soil reports, and
environmental reports and studies relating to the Improvements; and
(v) To the extent in the Partnership's possession, all
warranties and operating manuals that Partnership may have from vendors,
contractors or servicing agents with respect to the physical condition of the
Property or any portion thereof or the equipment located thereon.
(c) Upon delivery of the foregoing sums and documents, Escrow Agent
shall (i) cause the Amended Certificate of Limited Partnership to be filed for
record in the Official Records of the Secretary of State of the State of
California, (ii) cause the Title Company to issue immediately the Title Policy,
and (iii) disburse the Capital Contribution for the benefit of the Partnership
in accordance with Paragraph 13(a)(iv) below.
12. COSTS AND PRORATIONS.
(a) PRORATIONS. All revenues, income, receivables, costs, expenses
and payables of the Property shall be apportioned equitably between the
Partnership prior to admission of the Contributor and the Partnership as amended
with the admission of the Contributor as of Closing on the basis of the actual
number of days in a particular month, and with respect to the items enumerated
below where a particular manner of apportionment is provided, then apportionment
of such item shall be made in such manner. The obligation to make apportionments
shall survive Closing. Without limitation, the following items shall be so
apportioned:
(i) Monthly rents (but not free rent or concessions) and
percentage rent and "passthroughs" of real estate taxes and operating expenses
due from occupancy tenants under Tenant Leases, as and when collected. If at
Closing
16.
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there are any past due rents or charges owed by occupancy tenants, they shall
not be prorated until received. To the extent Partnership receives amounts on
account of Tenant Leases on or after the Closing Date, such payments shall be
applied first toward then current rent owed to the Partnership for the period
after the Closing in connection with the applicable Tenant Lease for which such
payments are received, and any excess monies received shall be applied toward
the payment of any delinquent rents and applied among the prior partners as
determined by A. S. Xxxxxxxx and Xx X. Xxxxxxxx. Contributor may not cause the
Partnership to waive any delinquent rents nor modify a Tenant Lease so as to
reduce or otherwise affect amounts owed thereunder for any period in which
Partnership is entitled to receive its share of charges or amounts without first
obtaining the written consent of the former general partners of the Partnership;
(ii) Real estate and personal property taxes and any special
assessments, taking into consideration discounts for the earliest permitted
payment, based upon the latest previous tax levies. Such items shall be
reapportioned outside of and following the Close of Escrow between Partnership
prior to the admission of the Contributor and the Partnership as amended with
the admission of the Contributor if current tax rates differ from the latest
previous tax rates as soon as the same are known. Partnership agrees that to the
extent any additional taxes, assessments or levies are imposed, assessed or
levied against the Property, or any portion thereof, at any time subsequent to
Closing but with reference to any period prior thereto, the Pre-Closing Partners
(as hereinafter defined) shall promptly pay such additional assessments or
levies from their own resources. No additional taxes shall be payable by the
Pre-Closing Partners pursuant to this paragraph 12(a)(ii) to the extent that
such additional taxes arise because of the transactions contemplated in this
Agreement. Similarly, if tax refunds become payable for periods prior to the
Closing, such amounts (subject to adjustments for the potential claims of
occupancy tenants that paid tax increases by way of rent escalations to
Partnership) shall be promptly paid over to the Pre-Closing Partners. In the
event that any assessments on the Property are payable in installments, then the
installment for the current period shall be prorated (with Contributor assuming
the obligation to pay any installment due after the Closing Date). For the
purpose of this Agreement the term "Pre-Closing Partners" shall refer to all of
the partners of Partnership immediately prior to the Closing contemplated by
this Agreement;
(iii) Security Deposits, plus accrued interest, if any,
payable thereon to tenants, and any other deposits and prepaid rent, shall be
credited (or assigned) to the Partnership, as amended with the admission of the
Contributor;
17.
19
(iv) Utility charges levied against Partnership or the
Property;
(v) Service Contracts on the basis of the charge or premium
for the period involved;
(vi) Tenant improvements costs and leasing commissions for
leases signed after the Effective Date if approved by Contributor in accordance
with Paragraphs 7(a) and 7(b); and
(vii) All other operating expenses incurred in the management
and operation of the Property.
No insurance policies shall be assigned hereunder, and accordingly there shall
be no proration of insurance premiums.
(b) EXPENSES OF CLOSING. The expenses of Closing shall be paid in
the following manner:
(i) Partnership prior to the admission of Contributor shall
pay:
(1) The cost of securing the CLTA standard coverage
portion of the Title Policy that is attributable to the required ALTA
Owner's coverage; and
(2) One-half of Escrow Agent's Escrow Fee;
(ii) The Partnership, as amended with the admission of the
Contributor shall pay:
(1) The cost of the Preliminary Title Report and the cost
of any Escrow or Title cancellation charges in the event that the
transaction fails to close through no fault of the Partnership and, if
Closing does occur, that portion of the cost of the Title Policy that is
not to be paid by Partnership pursuant to Subsection (b)(i)(1) above and
the cost of the ALTA Survey;
(2) The cost of filing the Amended Certificate of Limited
Partnership;
(3) One half of Escrow Agent's Escrow fee; and
(4) The cost and expense of conducting the seismic
investigation of the welds of the moment beams and the related asbestos
containment; provided, however, if Contributor timely objects during the
Approval Period to the physical condition of the Improvements based upon
such investigation and this Agreement is terminated solely on account
thereof, Partnership agrees to
18.
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reimburse Contributor for one-half of such costs and expenses.
All other Closing fees and expenses, including, but not limited to, the parties'
legal expenses, accounting and consulting fees, and other incidental expenses in
connection with this transaction shall be borne by the Partnership or by
Contributor, as applicable, who incurred the same.
13. REPRESENTATIONS, WARRANTIES AND COVENANTS OF PARTNERSHIP.
(a) Partnership hereby makes the following representations,
warranties and covenants, each of which is deemed to be material and each of
which is stated by Partnership to be true and correct on the date hereof and on
the Closing Date and each of which shall be guaranteed severally by A.S.
Xxxxxxxx as to one-sixth (1/6th) and Xx X. Xxxxxxxx as to five-sixths (5/6ths)
(said several liability of A.S. Xxxxxxxx as to 1/6th and Xx X. Xxxxxxxx as to
5/6ths being their respective liability under said guaranty and their respective
liability as General Partners of the Partnership) and shall survive the Closing
for a period of one (1) year except for the representations in subparagraph
(vii) below, which shall survive until the expiration of the applicable statute
of limitations:
(i) Partnership has no knowledge of any:
(1) materially incorrect income or expense
figures in any financial statements prepared by or for Partnership and
delivered to Contributor regarding the Property;
(2) claim, litigation or administrative
action, arbitration, proceeding pending before any court, agency or official,
nor any such claim or action threatened in writing, relating to the Partnership
or the Property or with respect to the validity of any statutes, ordinances,
regulations or restrictions or any permits, certificates or approvals thereunder
relating to the construction of any Improvements on the Property or the
operation thereof except as disclosed in Exhibit "I" attached hereto;
(3) outstanding contingent (and undisclosed)
liabilities affecting the Property or the Partnership (excluding matters
attributable to the physical condition of the Property or as disclosed in
Exhibit "I" attached hereto); and
(4) written notice of violations of City, County,
State, Federal, building, zoning, fire or health
19.
21
codes, regulations or ordinances, served or issued against the Property except
as disclosed in Exhibit "I" attached hereto.
(ii) The Tenant Leases, Service Contracts, the Rent Roll of
the Property and the list of Offsite Parking Rights attached as Exhibit "K"
hereto submitted to Contributor by Partnership for approval pursuant to
Paragraph 5 above, or otherwise, shall be true, correct and complete in all
material respects as of the date of submission thereof, and as thereafter
supplemented by supplements or additions, approved in writing by Contributor, on
or before Closing. Notwithstanding anything to the contrary contained herein,
Partnership shall have no obligation or liability to Contributor with respect to
any of the foregoing lease matters which shall be confirmed as correct in any
tenant estoppel certificate delivered to Contributor as provided in this
Agreement;
(iii) The operating financial information prepared by
Partnership and delivered to Contributor with respect to the Property,
consisting of Statements of Operations for the calendar year ended December 31,
1995, December 31, 1996 and for the current calendar year are true and correct
in all material respects;
(iv) The Capital Contribution shall be utilized by the
Partnership, as follows:
(a) To retire the Partnership's secured indebtedness to
the A.S. Xxxxxxxx Foundation (approximately $193,550);
(b) To retire the Partnership's secured indebtedness to
Belmont Memorial Park Corporation of California (assigned to and owned by A.S.
Xxxxxxxx and Xxxx Xxxxxxxxx, approximately $298,005 and $99,335, respectively);
(c) To retire the Partnership's secured indebtedness to
the Xxxxxxxx Family Trust (approximately $1,787,473);
(d) To fund the Partnership's share of all costs, fees,
charges and expenses attributable to the Partnership in connection with the
consummation of the transactions contemplated by this Agreement; and
(e) To fund, pay or establish reserves for all of the
Partnership's unsecured indebtedness or other expenses and liabilities including
that portion owed to Xx X. Xxxxxxxx, Xxxxx Xxxxx Xxxxxxxx, A.S. Xxxxxxxx Defined
Benefit Pension Trust, Xxxxxx Xxxx Xxxxxxxx and Xxxxxxxxx Xxxx (collectively,
the "Unsecured Noteholders"), as designated by the current general partners of
the Partnership.
20.
22
(v) There are no unsecured liabilities of the Partnership,
absolute or contingent (excluding those relating to the physical condition of
the Property), which have not been disclosed to Contributor and which as of the
Closing will have not been adequately provided for out of the existing capital,
receivables and reserves of the Partnership or from the Capital Contribution;
(vi) As used in this Agreement, "to Partnership's knowledge"
or other similar knowledge limitations as to Partnership shall mean the actual
knowledge, without any duty to investigate, of A.S. Xxxxxxxx, Xxxxx Xxxxxxxx and
Xx X. Xxxxxxxx; and
(vii) The Partnership (a) has filed all tax returns and
reports required to be filed by it and all such returns and reports are accurate
in all material respects; (b) except as set forth on Exhibit J attached hereto,
has paid all taxes required to be paid by it; (c) is a domestic entity which has
at all times had at least two partners; (d) has not filed Form 8832, or
otherwise elected pursuant to Treasury Regulation 301.7701-3(c), to be treated
as an association taxable as a corporation; (e) has, with respect to all periods
prior to January 1, 1997, claimed to be classified as a partnership and not as
an association taxable as a corporation and has had reasonable basis to claim
such classification; (f) except as set forth on Exhibit J, has not received
notice, and no partner of the Partnership has received notice, that the
classification of the Partnership was or would be under examination, or that the
Partnership is deficient in the payment of taxes, and the Partnership and such
partners have no knowledge of any facts or circumstances which present a
material risk of any challenge of the Partnership's classification as a
partnership for tax purposes; and (g) has been treated as a partnership (and not
as an association, publicly traded partnership or other entity taxable as a
corporation) for federal and California income tax purposes at all times during
its existence.
(b) Notwithstanding anything contained in Paragraphs 5(a) or 13(a)
to the contrary, Partnership is neither responsible nor liable for any
representation or warranty, either expressed or implied, guaranty, promise or
other information pertaining to the Property or the Improvements made or
furnished to Contributor by any broker representing or purporting to represent
Partnership.
14. REPRESENTATIONS AND WARRANTIES OF CONTRIBUTOR. Contributor hereby
makes the following representations and warranties, each of which is deemed to
be material and each of which is stated by Contributor to be true and correct on
the date hereof:
21.
23
(a) Contributor has full legal power and authority to enter into and
perform this Agreement in accordance with its terms. This Agreement constitutes
the valid and binding obligation of Contributor, enforceable in accordance with
its terms, except as such enforcement may be affected by bankruptcy, insolvency
and other laws affecting the rights of creditors generally. The execution,
delivery and performance of this Agreement and all documents in connection
therewith are not in contravention of or in conflict with any agreement or
undertaking to which Contributor is a party or by which Contributor may be bound
or affected; and
(b) The execution and delivery of this Agreement and the payment and
performance by Contributor of its payments and obligations hereunder require no
further action or approval in order to constitute this Agreement as a binding
and enforceable obligation of Contributor, and all such actions have been duly
taken by Contributor.
(c) As of the expiration of the Approval Period and as of the
Closing Date (i) Contributor will have received and reviewed all materials
provided to Contributor by Partnership pursuant to Sections 4 and 5 above
(collectively, the "Due Diligence Materials"), (ii) Contributor will have
inspected the Property, (iii) Contributor will have made such investigation of
the information contained in the Due Diligence Materials as it deems
appropriate, and (iv) Contributor is satisfied based upon its examination of the
Due Diligence Materials and its investigation of all other aspects of the
Property which Contributor deems material to its contribution, including,
without limitation, the condition of title to the Property, the zoning of the
Property, the condition and physical aspects of all structures located on the
Real Property (including the Improvements) and the presence or absence of
Hazardous Substances on the Property. Except as specifically set forth in
Paragraph 13, (i) the Partnership and its current partners have made no
warranties, representations or promises concerning the Property and (ii) the
Contributor is becoming a general partner of the Partnership and is making its
Contribution on as "AS IS, WHERE IS, WITH ALL FAULTS" basis.
15. GENERAL COVENANTS AND AGREEMENTS OF CONTRIBUTOR AND PARTNERSHIP.
(a) DAMAGE TO OR DESTRUCTION OF PROPERTY PRIOR TO CLOSING; RISK OF
LOSS. If prior to Closing, the Property shall sustain damage caused by fire or
other casualty that is insured and that would cost Two Hundred Fifty Thousand
Dollars ($250,000) or more to repair or if any uninsured loss or casualty occurs
that would cost One Hundred Fifty Thousand Dollars ($150,000) or more to repair,
either Partnership or Contributor may respectively elect to terminate this
Agreement
22.
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by written notice to the other within fifteen days after notice of such event,
or at Closing, whichever is earlier. If neither Partnership nor Contributor so
elects to terminate its obligations under this Agreement, or if the loss or
casualty would cost less than Two Hundred Fifty Thousand Dollars ($250,000) with
respect to an insured casualty and One Hundred Fifty Thousand Dollars ($150,000
with respect to an uninsured casualty to repair, the Closing shall take place as
provided herein and Contributor shall inure to the Partnership's rights to
insurance proceeds with respect to any unrepaired damage (including any rental
loss proceeds for periods after the Closing), loss or casualty in question.
Partnership shall retain all interest in and to the insurance proceeds that may
be payable to Partnership on account of repaired and completed damage, but
Partnership shall have no obligation of repair or replacement.
(b) CONDEMNATION OF PROPERTY PRIOR TO CLOSING. In the event that the
Property or any part thereof becomes the subject of a condemnation proceeding
other than of a minor immaterial nature prior to Closing, Partnership agrees to
immediately advise Contributor thereof. In the event of such condemnation,
Contributor shall have the option to (1) have the Closing take place in
accordance with the terms and conditions of this Agreement and negotiate with
the said condemning authority for the condemnation award and receive the
benefits thereof without affecting the Capital Contribution, or (2) terminate
this Agreement and declare its obligations thereunder null and void and of no
further effect, in which event all sums theretofore paid to Partnership or to
Escrow Agent hereunder shall be returned to Contributor as set forth herein.
Notice of the exercise of such option hereunder shall be in writing, delivered
to Partnership at the address set forth in Paragraph 16(g) of this Agreement (or
such other address as Partnership may have theretofore designated in writing) at
least two days prior to Closing.
(c) BROKERS' COMMISSIONS. Partnership warrants that Partnership did
not negotiate with respect to the purchase of the Property through any broker,
agent, finder, affiliate or other third party other than the Xxxxxx Company
(Xxxxx Xxxxxxx) ("Broker") or incur any liability, contingent or otherwise, for
brokerage or finder's fees or agent's commissions or other like payments in
connection with this Agreement, or the transactions contemplated hereby.
Partnership agrees to pay at Closing to Broker the commission due it in
connection with the within transaction and Partnership hereby agrees to
indemnify Contributor against and hold Contributor harmless from any and all
claims, demands, causes of action or damages resulting from any breach of this
warranty. Contributor hereby warrants that Contributor did not negotiate through
any broker, agent, finder, affiliate or other third party other than Broker or
incur any liability,
23.
25
contingent or otherwise, for any such brokerage or finder's fees, agent's
commissions or other like payments, in connection with this Agreement, and
hereby agrees to indemnify Partnership and its partners against and hold
Partnership and its partners harmless from any and all claims, demands, causes
of action or damages resulting from any breach of this warranty. This provision
shall survive Closing.
(d) FURTHER ASSURANCES PRIOR TO CLOSING. Partnership and Contributor
shall, prior to Closing, execute any and all documents and perform any and all
acts reasonably necessary, incidental or appropriate to effect the contribution
to the Partnership and the Restated Partnership Agreement contemplated in this
Agreement.
(e) TIME OF ESSENCE. Time shall be of the essence with respect to
the obligations of the parties hereunder.
(f) WAIVERS, AMENDMENTS AND MODIFICATIONS OF PROVISIONS. Waivers,
amendments or modifications of any term or condition of this Agreement must be
in writing signed by the party against whom such waiver is sought to be
enforced. No waiver by any party of any breach hereunder shall be deemed a
waiver of any other or subsequent breach.
(g) INDEMNIFICATION.
(i) Third Party Claims. Partnership and its existing general
partners severally, shall protect, defend and indemnify Contributor against and
hold Contributor harmless from any and all loss, cost, damage, claim, liability
or expense, including court costs and reasonable attorneys' fees (collectively,
"Damages"), for third party claims against the Partnership including former
employees, governmental claims for taxes and unsatisfied liabilities arising out
of or in connection with any matters or events which have occurred or facts
which came into existence prior to the Closing Date (including any personal
injury or property damage or claim of personal injury or property damage of any
kind whatsoever, including death, to property or persons, including employees of
Partnership prior to the Closing Date) or which would have come into existence
with notice or the passage of time or both, prior to the Closing Date unless
caused by Contributor, except to the extent covered by insurance proceeds on
policies maintained by the Partnership. This covenant shall survive Closing. Any
liability of the existing General Partners under this indemnity shall be several
and A.S. Xxxxxxxx shall be liable as to one-sixth and Xx X. Xxxxxxxx shall be
liable as to five-sixths.
(ii) Defense of Claims. If and to the extent the existing
General Partners (collectively, the "General Partner Indemnitors" and each
individually a "General Partner
24.
26
Indemnitor") are liable for any claim for Damages (a "Claim") pursuant to this
Section 15(g), Contributor shall give written notice to each General Partner
Indemnitor as soon as practicable after Contributor becomes aware of any fact,
condition or event which may give rise to Damages for which indemnification may
be sought under this Section 15(g). If any lawsuit or enforcement action is
filed against the Partnership, written notice thereof shall be given to each
General Partner Indemnitor as promptly as practicable (and in any event within
fifteen (15) calendar days after the service of the citation or summons). The
General Partner Indemnitors shall be entitled, if they so elect, (A) to take
control of the defense and investigation of such lawsuit or action, (B) to
employ and engage attorneys of their own choice to handle and defend the same,
at the General Partner Indemnitors' cost, risk and expense, and (C) to
compromise or settle such Claim in their sole discretion. The General Partner
Indemnitors shall not be liable for any settlement of any lawsuit or action
affected without their written consent. The provisions of this paragraph
15(g)(ii) shall not apply to tax matters, which shall be governed by paragraph
15(j) and the Partnership Agreement.
(iii) Cooperation. Contributor shall cooperate in all
reasonable aspects with the General Partner Indemnitors and their attorneys in
the investigation, trial and defense of such lawsuit or action and any appeal
arising therefrom. The parties shall cooperate with each other in any
notifications to insurers.
(h) USE OF RESERVES FOR PARTNERSHIP LIABILITIES. At the Closing,
cash in the amount of any Partnership reserves for liabilities that were
established prior to the Closing (including without limitation the reserve
account established pursuant to Section 7(f) hereof) shall be placed in a
separate trust account (the "Reserve Trust Account") of which the then acting
trustee of the Xxxxxxxx Trust and the ten-acting trustee of the Xxxxxxxx Trust
("Trustees") shall be the sole signatories. Trustees shall have the sole right
to control the use of the funds in the Reserve Trust Account, including without
limitation the use of such funds for the payment of expenses relating to such
liabilities and to the discharge of any such liabilities. In addition, if a
specific liability (including without limitation any of the claims listed on
Exhibit I) is ultimately discharged for less than the entire amount reserved for
such liability, then Trustees shall have the sole right to control the
disposition of funds in the Reserve Trust Account equal to the unused amount
reserved for such liability, which disposition shall be made consistent with the
obligations among the Pre-Closing Partners. In the event the funds in the
Reserve Trust Account are insufficient to discharge all of the Obligations of
the
25.
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Partnership, the existing general partners and A.S. Xxxxxxxx and Xx X. Xxxxxxxx
under Sections 8(e), 13(a)(v) and 15(g) hereof, the Partnership, the existing
general partners and A.S. Xxxxxxxx and Xx X. Xxxxxxxx, as applicable, shall
remain liable under said Sections 8(e), 13(a)(v) and 15(g) to the extent so
provided therein.
(i) OFFICES. The parties agree that A.S. Xxxxxxxx, Xx X. Xxxxxxxx
and Xxxxx Xxxxxxxx shall be permitted to continue to occupy their current
offices at the Property and to use their currently used storage facilities at
the Property for a period of ninety (90) days after the Closing on a rent-free
basis.
(j) 1997 INCOME TAX RETURNS. At least (30) days prior to the due
date for such returns, including any extensions, Contributor shall deliver to
A.S. Xxxxxxxx and Xx X. Xxxxxxxx drafts of the Partnership's 1997 federal and
California income tax returns (collectively, the "1997 Tax Returns") for their
review and comment. Contributor agrees to reasonably consider and to reasonably
take into account the views expressed by Xxxxxxxx and Xxxxxxxx.
(k) 1997 ASBESTOS REPORTS. At least thirty (30) days prior to the
due date for such reports, Contributor shall deliver to A.S. Xxxxxxxx and Xx X.
Xxxxxxxx drafts of any and all asbestos reports that the Partnership is required
to file with any governmental agency with respect to all or any portion of 1997,
including without limitation Verification Questionnaire, FEE Summary Sheet and
Manifest FEE Calculation Sheet (State of California, California EPA), State of
California Board of Equalization Hazardous Waste Generator Fee and Waste
Reporting Surcharge Fee Return, for their review and comment. Contributor agrees
to reasonably consider and to reasonably take into account the views expressed
by Xxxxxxxx and Xxxxxxxx.
16. MISCELLANEOUS PROVISIONS.
(a) SUCCESSORS AND ASSIGNS. Subject to the provisions hereof, the
terms and provisions hereof shall be binding upon and inure to the benefit of
the successors and assigns of the parties hereto.
(b) MEANING OF TERMS. When necessary herein, all terms used in the
singular shall apply to the plural and vice versa; and all terms used in the
masculine shall apply to the neuter and feminine genders.
(c) ENTIRE AGREEMENT. This Agreement and all exhibits hereto and all
agreements executed pursuant hereto and the Restated Partnership Agreement is
the entire agreement between the parties hereto with respect to the subject
matter
26.
28
hereof and supersedes all prior agreements between the parties hereto with
respect thereto. No claim of waiver, modification, consent or acquiescence with
respect to any of the provisions of this Agreement shall be made against either
party, except on the basis of a written instrument executed by or on behalf of
such party.
(d) GOVERNING LAW. This Agreement is to be governed by and construed
in accordance with the internal laws of the State of California.
(e) PARAGRAPH HEADINGS. The headings of the several paragraphs of
this Agreement are inserted solely for convenience of reference and are not a
part of and are not intended to govern, limit or aid in the construction of any
term or provision hereof.
(f) ATTORNEYS' FEES. If either Partnership or Contributor shall
obtain legal counsel and bring an action or proceeding against the other by
reason of an alleged breach of any covenant, provision or condition hereof, or
otherwise arising out of this Agreement, the unsuccessful party shall pay to the
prevailing party reasonable attorneys' fees, which shall be payable whether or
not any proceeding is prosecuted to judgment or award. The term "prevailing
party" shall include a party (i) who brings an action or proceeding against the
other by reason of the other's breach or default and obtains substantially the
relief sought by judgment or award or (ii) who successfully defends an action or
proceeding brought by the other party and against whom no material damages or
specific performance are awarded.
(g) NOTICES. All notices, requests and other communications
hereunder shall be in writing and shall be personally delivered or, in the
alternative, deposited with (1) the United States Postal Service, Certified Mail
with Return Receipt Requested, with postage prepaid or (2) Federal Express or
other overnight air freight forwarder for delivery the next business day or (3)
by facsimile transmission during normal business hours on regular business days
to the following addresses:
Partnership: Westwood Center
0000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: A. S. Xxxxxxxx
FAX (000) 000-0000
27.
29
With a copy to: Sanders, Barnet, Xxxxxxx,
Simons & Mosk
0000 Xxxxxx xx xxx Xxxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx, Esq.
FAX (000) 000-0000
Contributor: Arden Realty, Inc.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000 Xxxx
Xxxxxxx Xxxxx, XX 00000
Attn: Xx. Xxxxxxx X. Xxxxx
FAX (000) 000-0000
With a copy to: Xxxx & Xxxxx
0000 Xxxxxxx Xxxx Xxxx
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
FAX (000) 000-0000
Escrow Agent: Commerce Escrow Company
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxx
FAX (000) 000-0000
If to A.S. Xxxxxxxx: A.S. Xxxxxxxx, Trustee u/d/t
dated September 6, 1987
establishing the A.S. Xxxxxxxx
Family Trust
000 Xxxxxxx Xxxx
Xxx Xxxxxxx, XX 00000
FAX (000) 000-0000
With a copy to: Xxx Xxxxxx, Esq.
Xxxxxx & Xxxxxxxxx
0000 Xxxxxxx Xxxx Xxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
FAX (000) 000-0000
If to Xx X. Xxxxxxxx: Xx X. Xxxxxxxx, Trustee of the
Xx X. Xxxxxxxx Separate Property
Trust u/d/t dated August 18, 1987
x/x Xxxxxx Xxxxxx, Xxx.
Xxxxxx, Xxxxxx & Xxxxxxx
Xxx Xxxxxxxx Xxxxxxxxx, #0000
Xxx Xxxxxxx, XX 00000-0000
FAX (000) 000-0000
28.
30
All notices, requests and other communications may be sent by legal counsel for
the party and shall be effective (1) upon delivery, (2) on the date of
acknowledgment or other evidence of actual receipt or (3) two (2) business days
following deposit with the U.S. Postal Service, with postage prepared and
properly addressed.
(h) SEVERABILITY. If any provision of this Agreement or the
application thereof to any person or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Agreement and the application
of such provisions to other persons or circumstances shall not be affected
thereby and shall be enforced to the greatest extent permitted by law.
(i) FURTHER ASSURANCES ON OR AFTER CLOSING. Each party hereto agrees
to do all acts and things and to make, execute and deliver such written
instruments as shall be reasonably necessary to carry out the terms and
provisions of this Agreement. This covenant of further assurances shall survive
Closing.
(j) OTHER PARTIES. Nothing in this Agreement shall be construed as
giving any person, firm, corporation or other entity, other than the parties
hereto, their successors and permitted assigns, any right, remedy or claim under
or with respect to this Agreement or any provision hereof.
(k) CONFIDENTIALITY. Partnership and Contributor agree that it is in
both of their best interests to keep this Agreement and all information
concerning the Property confidential until Closing. Prior to Closing,
Partnership and Contributor each agrees that except to the extent required by
The Securities Act of 1933, The Securities and Exchange Act of 1934, and the
rules and regulations promulgated thereunder, the rules of the New York Stock
Exchange or any underwriting agreement to which Contributor is a party, neither
shall take any action nor conduct itself in any fashion that would disclose to
third parties unrelated to Contributor, its acquisition or intended ownership
and operation of the Property, any aspect of the contemplated transaction. After
Closing, neither party shall make any public announcement of the transaction
that has not been approved in advance and in writing by the other party, such
approval not to be unreasonably delayed or withheld.
(l) CONDITION OF PROPERTY. Contributor acknowledges that it will
inspect and examine the Property and, except as expressly provided in this
Agreement, will rely solely on its own investigation of the Property and not on
any information provided or to be provided by or on behalf of Partnership.
Except as otherwise expressly provided in this Agreement, the Contributor is
making its Contribution to the Partnership and is becoming a general partner in
the
29.
31
Partnership on an "AS IS" "WHERE IS" and "WITH ALL FAULTS" basis. Contributor
acknowledges that in consideration of entering into this Agreement, that, except
as expressly provided in this Agreement, Partnership makes no warranty or
representation, with respect to the Property, or any portion thereof, express or
implied, or arising by operation of law, including, but not limited to, any
warranty of condition (physical, environmental or otherwise), title (other than
the limited warranties of title contained in the grant deed), habitability or
fitness for a particular purpose or otherwise.
(m) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed an original; such
counterparts shall together constitute but one agreement.
(n) FACSIMILE SIGNATURES. Contributor and Partnership each (i) has
agreed to permit the use, from time to time and where appropriate, of telecopied
signatures in order to expedite the transaction contemplated by this Agreement,
(ii) intends to be bound by its respective telecopied signature, (iii) is aware
that the other party will rely on the telecopied signature, and (iv)
acknowledges such reliance and waives any defenses to the enforcement of the
documents and notices effecting the transaction contemplated by this Agreement
based on the fact that a signature or notice was sent by telecopy.
30.
32
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first hereinabove written.
PARTNERSHIP: WESTWOOD CENTER
a California limited partnership,
By: /s/ A. S. Glickbarg
----------------------------------------------
Name: A. S. Xxxxxxxx, Trustee of
the A. S. Xxxxxxxx Family
Trust
Title: General Partner
By: /s/ Xx X. Xxxxxxxx
----------------------------------------------
Name: Xx X. Xxxxxxxx, Trustee of
the Xx X. Xxxxxxxx Separate
Property Trust
Title: General Partner
Dated:
---------------------------------------------
CONTRIBUTOR: ARDEN REALTY LIMITED PARTNERSHIP,
a Maryland limited partnership
By: Arden Realty, Inc.,
a Maryland corporation,
Its General Partner
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
Dated:
---------------------------------------------
GUARANTORS SEVERALLY
AS TO PARAGRAPHS
8(b), 8(e), 13(a)
AND 15(g): /s/ A. S. Glickbarg
--------------------------------------------------
A.S. Xxxxxxxx
/s/ Xx X. Xxxxxxxx
--------------------------------------------------
Xx X. Xxxxxxxx
Dated:
---------------------------------------------
31.
33
The undersigned hereby executes this Agreement to evidence its agreement
to act as Escrow Holder in accordance with the terms of this Agreement.
AGREED AND ACCEPTED:
Escrow Agent:
COMMERCE ESCROW COMPANY
By: /s/ Xxxx Xxxxxx
----------------------
Name: Xxxx Xxxxxx
Title: Vice President
32.
34
LIST OF EXHIBITS
A. Legal Description
B. List of Partnership and Amendments
C. Amended and Restated Partnership Agreement
D. Tenant Leases ("Rent Roll")
E. Service Contracts
F. Intentionally Deleted
G. Tenant Estoppel Form
H. Liability Agreement
I. List of Actions, Citations and Claims Pending Against
Partnership
J. Open Tax Matters
K. Offsite Parking Rights
L. General Release
M. Parking Rights Agreement
33.
35
EXHIBIT A
LEGAL DESCRIPTION
THE REAL PROPERTY REFERRED TO HEREIN IS SITUATED IN THE CITY OF LOS
ANGELES, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AND IS DESCRIBED
AS FOLLOWS:
Parcel 1
Xxx 0 xx Xxxxx Xx. 00000 as per map recorded in Book 634, Page 50 of
Maps, in the office of the County Recorder of said County.
Parcel 2
Lots 6, 7, 8, 10 and 11 in Block 15 of Tract No. 9768 as per map recorded in
Book 147, Pages 70 to 73 inclusive of Maps, in the office of the County Recorder
of said County.
36
EXHIBIT B
LIST OF PARTNERSHIP AND AMENDMENTS
1. Certificate and Articles of Limited Partnership of Wilshire Westwood
Office Center dated June 8, 1965 and recorded in Los Angeles County on June 8,
1965.
2. First Amendment to Certificate and Articles of Limited Partnership of
Westwood Center, a California limited partnership dated December 1, 1966 and
recorded in Los Angeles County on January 4, 1967.
3. Second Amendment to Certificate and Articles of Limited Partnership of
Westwood Center, a limited partnership, dated January 1, 1972 and recorded in
Los Angeles County on December 8, 1972.
4. Second Amendment [sic] to Certificate and Articles of Limited
Partnership of Westwood Center, a limited partnership, dated April 3, 1972.
5. Third Amendment to Certificate and Articles of Limited Partnership of
Westwood Center, a limited partnership, dated September 1, 1974.
6. Fourth Amendment to Certificate and Articles of Limited Partnership of
Westwood Center, a limited partnership, dated January 1, 1975.
7. Fifth Amendment to Certificate and Articles of Limited Partnership of
Westwood Center, a limited partnership, dated April 1, 1978 and recorded in Los
Angeles County on August 11, 1978.
8. Sixth Amendment to Certificate and Articles of Limited Partnership of
Westwood Center, a limited partnership, dated March 21, 1984.
9. Seventh Amendment to Certificate and Articles of Limited Partnership of
Westwood Center, a limited partnership, dated July 15, 1985.
10. Eighth Amendment to Certificate and Articles of Limited Partnership of
Westwood Center, a limited partnership, dated November 2, 1987.
11. Ninth Amendment to Certificate and Articles of Limited Partnership of
Westwood Center, a limited partnership, dated May 15, 1988.
12. Tenth Amendment to Certificate and Articles of Limited Partnership of
Westwood Center, a limited partnership, dated January 1, 1994.
37
EXHIBIT C
AMENDED AND RESTATED PARTNERSHIP AGREEMENT
38
________________________________
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
WESTWOOD CENTER,
A CALIFORNIA LIMITED PARTNERSHIP
________________________________
___________, 1997
39
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINED TERMS............................................................. 3
Section 1.1 Definitions............................................................... 3
ARTICLE 2 ORGANIZATIONAL MATTERS.................................................... 17
Section 2.1 Organization.............................................................. 17
Section 2.2 Name...................................................................... 17
Section 2.3 Resident Agent; Principal Office.......................................... 17
Section 2.4 Power of Attorney......................................................... 17
Section 2.5 Term...................................................................... 19
Section 2.6 Number of Partners........................................................ 19
ARTICLE 3 PURPOSE................................................................... 19
Section 3.1 Purpose and Business...................................................... 19
Section 3.2 Powers.................................................................... 19
Section 3.3 Partnership Only for Purposes Specified................................... 20
Section 3.4 Representations and Warranties by the Parties............................. 20
ARTICLE 4 CAPITAL CONTRIBUTIONS..................................................... 22
Section 4.1 Capital Contribution of the Partners...................................... 22
Section 4.2 Loans by Third Parties.................................................... 22
Section 4.3 Additional Funding and Capital Contributions.............................. 23
ARTICLE 5 DISTRIBUTIONS............................................................. 26
Section 5.1 Requirement and Characterization of
Distributions............................................................. 26
Section 5.2 Distributions in Kind..................................................... 26
Section 5.3 Distributions Upon Liquidation............................................ 26
Section 5.4 Distribution to Reflect Issuance of Additional
Partnership Interests..................................................... 26
ARTICLE 6 ALLOCATIONS............................................................... 27
Section 6.1 Timing and Amount of Allocations of Net Income
and Net Loss.............................................................. 27
Section 6.2 General Allocations....................................................... 27
Section 6.3 Additional Allocation Provisions.......................................... 27
Section 6.4 Tax Allocations........................................................... 30
ARTICLE 7 MANAGEMENT AND OPERATIONS OF BUSINESS..................................... 30
Section 7.1 Management................................................................ 30
Section 7.2 Certificate of Limited Partnership........................................ 34
Section 7.3 Restrictions on General Partner's Authority............................... 34
Section 7.4 Reimbursement of the General Partner...................................... 38
Section 7.5 Outside Activities of the General Partner................................. 38
Section 7.6 Contracts with Affiliates................................................. 38
Section 7.7 indemnification........................................................... 39
Section 7.8 Liability of the General Partner.......................................... 41
Section 7.9 Other Matters Concerning the General Partner.............................. 42
(i)
40
Section 7.10 Title to Partnership Assets............................................... 42
Section 7.11 Reliance by Third Parties................................................. 43
ARTICLE 8 RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS................................ 43
Section 8.1 Limitation of Liability................................................... 43
Section 8.2 Management of Business.................................................... 43
Section 8.3 Outside Activities of Limited Partners.................................... 44
Section 8.4 Return of Capital......................................................... 44
Section 8.5 Rights of Limited Partners Relating to the
Partnership............................................................... 44
Section 8.6 Exchange Rights........................................................... 45
ARTICLE 9 BOOKS, RECORDS, ACCOUNTING AND REPORTS.................................... 47
Section 9.1 Records and Accounting.................................................... 47
Section 9.2 Fiscal Year............................................................... 47
Section 9.3 Reports................................................................... 48
ARTICLE 10 TAX MATTERS............................................................... 48
Section 10.1 Preparation of Tax Returns................................................ 48
Section 10.2 Tax Elections............................................................. 48
Section 10.3 Tax Matters Partner....................................................... 49
Section 10.4 Withholding............................................................... 50
ARTICLE 11 TRANSFERS AND WITHDRAWALS................................................. 51
Section 11.1 Transfer.................................................................. 51
Section 11.2 Transfer of General Partner's Partnership
Interest.................................................................. 52
Section 11.3 Limited Partners' Rights to Transfer...................................... 53
Section 11.4 Substituted Limited Partners.............................................. 55
Section 11.5 Assignees................................................................. 55
Section 11.6 General Provisions........................................................ 56
ARTICLE 12 ADMISSION OF PARTNERS..................................................... 58
Section 12.1 Admission of Successor General Partner.................................... 58
Section 12.2 Admission of Additional Limited Partners.................................. 58
Section 12.3 Amendment of Agreement and Certificate of
Limited Partnership............................................................... 59
ARTICLE 13 DISSOLUTION AND LIQUIDATION............................................... 60
Section 13.1 Dissolution............................................................... 60
Section 13.2 Winding Up................................................................ 60
Section 13.3 Compliance with Timing Requirements of
Regulations............................................................... 61
Section 13.4 Deemed Distribution and Recontribution.................................... 62
Section 13.5 Rights of Limited Partners................................................ 62
Section 13.6 Notice of Dissolution..................................................... 63
Section 13.7 Cancellation of Certificate of Limited
Partnership............................................................... 63
Section 13.8 Reasonable Time for Winding-Up............................................ 63
Section 13.9 Waiver of Partition....................................................... 63
(ii)
41
ARTICLE 14 AMENDMENT OF PARTNERSHIP AGREEMENT; CONSENTS.............................. 63
Section 14.1 Amendments................................................................ 63
Section 14.2 Action by the Partners.................................................... 64
ARTICLE 15 GENERAL PROVISIONS........................................................ 65
Section 15.1 Addresses and Notice...................................................... 65
Section 15.2 Titles and Captions....................................................... 65
Section 15.3 Pronouns and Plurals...................................................... 65
Section 15.4 Further Action............................................................ 65
Section 15.5 Binding Effect............................................................ 65
Section 15.6 Creditors................................................................. 65
Section 15.7 Waiver.................................................................... 65
Section 15.8 Counterparts.............................................................. 66
Section 15.9 Applicable Law............................................................ 66
Section 15.10 Invalidly of Provisions................................................... 66
Section 15.11 Entire Agreement.......................................................... 66
Section 15.12 No Rights as Partners of the General Partners............................. 66
(iii)
42
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
WESTWOOD CENTER
THIS AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
("Agreement"), dated as of________________,1997, is entered into by and among
Arden Realty Limited Partnership, a Maryland limited partnership ("Arden") , as
the General Partner and the Persons whose names are set forth on Exhibit A
attached hereto, as the Limited Partners, together with any other Persons who
become Partners in the Partnership as provided herein.
RECITALS
A. The Partnership was formed on June 8, 1965 and an original
Certificate and Articles of Limited Partnership was entered into among the
Limited Partners or their predecessors in interest and 1100 Xxxxxxx,
Incorporated, a California Corporation, as the General Partner, and was recorded
on June 8, 1965 as Instrument No. 3639 in Book M1884 at page 325 in the Office
of the County Recorder of Los Angeles County.
B. The Certificate and Articles of Limited Partnership have been
amended previously on eleven (11) separate occasions, as follows: (1) First
Amendment dated December 1, 1966 and recorded on January 4, 1967 as Instrument
No. 1532 in Book M2431 at page 432; (2) Second Amendment dated as January 1,
1972 and recorded on December 8, 1972 as Instrument No. 4718 in Book M4226 at
page 976; (3) Second (sic) Amendment dated April 3, 1972; (4) Third Amendment
dated September 1, 1974; (5) Fourth Amendment dated January 1, 1975, (6) Fifth
Amendment dated April 1, 1978; (7) Sixth Amendment dated March 21, 1984; (8)
Seventh Amendment dated July 16, 1985; (9) Eighth Amendment dated November 2,
1987; (10) Ninth Amendment dated May 15, 1988; and (11) Tenth Amendment dated
January 1, 1994.
C. Pursuant to an Agreement to Contribute (the "Contribution
Agreement") between Arden and the Partnership dated September 26, 1997, Arden
and the Partnership have agreed, subject to certain terms and conditions which
have now all been satisfied, that as of the Effective Date (i) Arden would
contribute substantial cash to the capital of the Partnership, (2) Arden would
be admitted as a General Partner of the Partnership and receive a ninety-seven
and one-half percent (97.5%.) interest in all of the profits, losses,
distributions and capital of the Partnership, (3) the existing General Partners
would become Limited Partners and (4) all Limited Partners' Percentage Interests
would be readjusted in proportion to the two and one-half percent (2.5%)
interest owned by all of the Limited Partners.
D. Arden's interest in becoming the General Partner of the Partnership
and making its initial Capital Contribution to the
1.
43
Partnership is for the purpose of acquiring control of the Partnership's
Property to initiate the planning, designing and implementation of a total and
complete renovation, retrofit, rehabilitation and remodelling of the Property
in one or more phases through additional Capital Contributions and loans by it
(which may equal or exceed the present capitalization of the Partnership)
without the approval or consent of the Limited Partners.
E. By virtue of their respective execution of this Agreement Arden and
the Limited Partners hereby consent to and approve the foregoing recitals and
consent to and approve the further amendment and restatement of the Certificate
and Articles of Limited Partnership, as follows:
NOW, THEREFORE, BE IT RESOLVED, that for good and adequate
consideration, the receipt of which is hereby acknowledged, the parties hereto
agree as follows:
1. Admission of Arden. On the Effective Date, Arden is hereby admitted
as the General Partner of the Partnership and concurrently therewith is making
the cash Capital Contribution to the Partnership set forth in Section 4.1.
2. Conversion to Limited Partners. On the Effective Date, A.S.
XXXXXXXX, Trustee of the A.S. Xxxxxxxx Family Trust under Declaration of Trust
dated September 16, 1987 ("Xxxxxxxx Trust") and XX X. XXXXXXXX, Trustee of the
Xx X. Xxxxxxxx Separate Property Trust under Declaration of Trust dated August
18, 1987 ("Xxxxxxxx Trust") shall resign as the General Partners of the
Partnership and their Partnership Interests are thereby converted to that of
Limited Partners.
3. Readlustment of Percentage Interests. On the Effective Date,
pursuant to the Capital Contributions set forth in Section 4.1 hereof, the
Percentage Interests of the Partners shall be readjusted as set forth on Exhibit
A attached hereto and made a part hereof.
4. Renovation Plan. On the Effective Date Arden shall be free to
implement, fund and execute a plan for the total and complete renovation,
retrofit, rehabilitation and remodeling of the improvements on the Property in
as many stages and in such amounts and pursuant to such design and motif as
Arden shall decide in its sole and unfettered discretion.
5. Indemnification. But for the representations, warranties and other
assurances of the Partnership and the Indemnitors to Arden concerning the
Partnership, its liabilities (absolute and contingent) , tax status (past and
present) and all other historical matters concerning the Partnership (except the
structural condition of the Property) that could adversely effect Arden, Arden
would not have entered into this Agreement nor the Contribution Agreement of
2.
44
which this Agreement is a part. Arden, nevertheless, continues to be concerned
about its admission as the General Partner of the Partnership for matters or
events which have occurred or facts which came into existence during the
Indemnitors (and their Affiliates) control of the Partnership and which if there
had been a sale of the Property to Arden would have been cut-off as to it. In
order to induce Arden to proceed with its Capital Contribution to this
Partnership and its admission as the General Partner, the Partnership and the
Indemnitors, severally, hereby agree to protect, defend and indemnify Arden
(together with reasonable attorneys fees and costs from counsel of its own
choosing) from and against any and all tort claims, taxes and liabilities
including all damages, liabilities, costs and expenses reasonably incurred or
suffered by Arden which relate to matters or events which have occurred or facts
which came into existence prior to the Effective Date and which, if there had
been a sale of the Property to Arden, would not have otherwise subjected Arden
to the potential of liability or damages, except to the extent covered by
insurance presently maintained by the Partnership. The several liability of A.S.
Xxxxxxxx and Xxxxxxxx Trust and Xx X. Xxxxxxxx and Xxxxxxxx Trust shall be A.S.
Xxxxxxxx and Xxxxxxxx Trust as to one-sixth and Xx X. Xxxxxxxx and Xxxxxxxx
Trust as to five-sixths and shall be their respective liability as Indemnitors
and their respective liability as general partners of the Partnership.
ARTICLE 1
DEFINED TERMS
Section 1.1 Definitions. The following definitions shall be for all
purposes, unless otherwise clearly indicated to the contrary, applied to the
terms used in this Agreement.
"Act" means the California Revised Uniform Limited Partnership Act, as
it may be amended from time to time, and any successor to such statute.
"Additional Funds" shall have the meaning set forth in Section 4.3.A.
"Additional Limited Partner" means a Person admitted to the Partnership
as a Limited Partner pursuant to Section 12.2 hereof and who is shown as such on
the books and records of the Partnership.
"Adjusted Capital Account Deficit" means, with respect to any Partner,
the deficit balance, if any, in such Partner's Capital Account as of the end of
the relevant fiscal year, after giving effect to the following adjustments:
(i) decrease such deficit by any amounts which such Partner is
obligated to restore pursuant to this Agreement or is deemed
to be obligated to restore pursuant to Regulations
3.
45
Section 1. 704-1 (b) (2) (ii) (c) or the penultimate
sentence of each of Regulations Sections 1. 704-2 (i) (5) and
1. 704 2(g)(1); and
(ii) increase such deficit by the items described in Regulations
Section 1. 704-1 (b) (2) (ii) (d) (4) , (5) and (6) .
The foregoing definition of Adjusted Capital Account Deficit is
intended to comply with the provisions of Regulations Section 1.704-1 (b) (2)
(ii) (d) and shall be interpreted consistently therewith.
"Affiliate" means, with respect to any Person, any Person directly or
indirectly controlling, controlled by or under common control with such Person.
"Agreed Value" means in the case of any Contributed Property as of the
time of its contribution to the Partnership, the fair market value of such
property or other consideration as determined by the General Partner, reduced by
any liabilities either assumed by the Partnership upon such contribution or to
which such property is subject when contributed; and in the case of any property
distributed to a Partner by the Partnership, the fair market value of such
property as determined by the General Partner at the time such property is
distributed, reduced by any liabilities either assumed by such Partner upon such
distribution or to which such property is subject at the time of the
distribution as determined under Section 752 of the Code and the Regulations
thereunder.
"Agreement" means this Agreement of Limited Partnership, as it may be
amended, supplemented or restated from time to time.
"Appraisal" means with respect to the Property an opinion as to fair
market value thereof prepared by an independent third party M.A.I. appraiser
experienced in the valuation of similar properties in West Los Angeles as
reasonably selected by the General Partner in good faith and reasonably approved
by a Majority in Interest of the Limited Partners. If a Majority in Interest of
the Limited Partners fail to approve the appraiser selected by the General
Partner such Majority in Interest shall select their own appraiser meeting the
above-described requirements within fifteen (15) business days following receipt
of notice of the General Partner's selection. If a Majority in Interest of the
Limited Partners fail to timely select and notify the General Partner of their
selection within such 15 day period, the General Partner's appraiser shall be
the appraiser for the purpose of the Appraisal. If a Majority in Interest of the
Limited Partners timely select an appraiser, that appraiser and the General
Partner's appraiser shall promptly meet to select a third appraiser meeting the
above described requirements who alone shall perform the Appraisal.
"Assignee" means a Person to whom any Partnership Interest has been
transferred in a manner permitted under this Agreement, but
4.
46
who has not become a Substituted Limited Partner, and who has the rights set
forth in Section 11.5.
"Available Cash" means, with respect to any period for which such
calculation is being made,
(i) the sum of
(a) the Partnership's Net Income or Net Loss (as the case may be)
for such period,
(b) Depreciation and all other noncash charges deducted in
determining Net Income or Net Loss for such period,
(c) the amount of any reduction during such period in reserves of
the Partnership referred to in clause (ii) (f) below (including, without
limitation, reductions resulting because the General Partner determines such
amounts are no longer necessary),
(d) the excess of the net proceeds from the sale, exchange,
disposition, or refinancing of Partnership property for such period over the
gain (or loss, as the case may be) recognized from any such sale, exchange,
disposition, or refinancing during such period (excluding Terminating Capital
Transactions),
(e) all other cash received by the Partnership for such period that
was not included in determining Net Income or Net Loss for such period, and
(f) any expense deductible in determining Net Income or Net Loss
for such period that was not paid by the Partnership during such period.
(ii) less the sum of:
(a) all principal debt payments made during such period by the
Partnership,
(b) capital expenditures made by the Partnership during such
period,
(c) investments made during such period in any entity (including
loans made thereto) to the extent that such investments are not otherwise
described in clauses (ii)(a) or (b), and to the extent such investments cannot
be readily liquidated,
(d) all other expenditures and payments made during such period not
deducted in determining Net Income or Net Loss for such period,
(e) any amount included in determining Net Income or Net Loss for
such period that was not received by the Partnership during such period,
5.
47
(f) the amount of any increase in reserves established during such
period which the General Partner determines are necessary or appropriate in its
sole and absolute discretion, and
(g) the amount of any working capital accounts and other cash or
similar balances established during such period which the General Partner
determines to be necessary or appropriate in its sole and absolute discretion.
Notwithstanding the foregoing, Available Cash shall not include any
cash received or reductions in reserves, or take into account any disbursements
made or reserves, established, after commencement of the dissolution and
liquidation of the Partnership.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in New York, New York are authorized or required by law
to be closed.
".Capital Account" means, with respect to any Partner, the Capital
Account maintained for such Partner in accordance with the following provisions:
(a) To each Partner's Capital Account there shall be added such
Partner's Capital Contributions, such Partner's share of Net Income and any
items in the nature of income or gain which are specially allocated pursuant to
Section 6.3 hereof, and the amount of any Partnership liabilities assumed by
such Partner or which are secured by any property distributed to such Partner.
(b) From each Partner's Capital Account there shall be subtracted
the amount of cash and the Gross Asset Value of any property distributed to such
Partner pursuant to any provision of this Agreement, such Partner's distributive
share of Net Losses and any items in the nature of expenses or losses which are
specially allocated pursuant to Section 6.3 hereof, and the amount of any
liabilities of such Partner assumed by the Partnership or which are secured by
any property contributed by such Partner to the Partnership.
(c) In the event any interest in the Partnership is transferred in
accordance with the terms of this Agreement (which does not result in a
termination of the Partnership for federal income tax purposes), the transferee
shall succeed to the Capital Account of the transferor to the extent it relates
to the transferred interest.
(d) In determining the amount of any liability for purposes of
subsections (a) and (b) hereof, there shall be taken into account Code section
752(c) and any other applicable provisions of the Code and Regulations.
(e) The foregoing provisions and the other provisions of this
Agreement relating to the maintenance of Capital Accounts are
6.
48
intended to comply with Regulations Sections 1.704-1(b) and 1.704-2, and shall
be interpreted and applied in a manner consistent with such Regulations. In the
event the General Partner shall determine that it is prudent to modify the
manner in which the Capital Accounts, or any debits or credits thereto
(including, without limitation, debits or credits relating to liabilities which
are secured by contributed or distributed property or which are assumed by the
Partnership, the General Partner, or the Limited Partners) are computed in order
to comply with such Regulations, the General Partner may make such modification,
provided that it is not likely to have a material effect on the amounts
distributable to any Person pursuant to Article 13 of the Agreement upon the
dissolution of the Partnership, or upon the allocation (for purposes of tax
basis) of the liabilities of the Partnership to the Partners. The General
Partner also shall (i) make any adjustments that are necessary or appropriate to
maintain equality between the Capital Accounts of the Partners and the amount of
Partnership capital reflected on the Partnership's balance sheet, as computed
for book purposes, in accordance with Regulations section 1.704-1(b)
(2) (iv) (q) , and (ii) make any appropriate modifications in the event
unanticipated events might otherwise cause this Agreement not to comply with
Regulations Section 1.704-1(b) or Section 1.704-2.
"Capital Contribution" means, with respect to any Partner, the amount
of money and the initial Gross Asset Value of any property (other than money)
contributed to the Partnership by such Partner.
"Cash Amount" means, with respect to any Tendered Units, an amount of
cash determined pursuant to Section 8.6.C.
"Certificate" means the Certificate of Limited Partnership relating to
the Partnership filed in the office of the California Secretary of State, as
amended from time to time in accordance with the terms hereof and the Act.
"Charter" means the Articles of Incorporation of the Company filed with
the Maryland State Department of Assessments and Taxation on May 1, 1996, as
amended or restated from time to time.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time or any successor statute thereto, as interpreted by the applicable
regulations thereunder. Any reference herein to a specific section or sections
of the Code shall be deemed to include a reference to any corresponding
provision-of future law.
"Company" means Arden Realty, Inc., a Maryland corporation, a REIT
whose shares of capital stock are currently traded on the New York Stock
Exchange and the general partner of the General Partner and any successor in
interest whether by sale, transfer, merger, consolidation, reorganization or
other similar event.
7.
49
"Consent" means the consent to, approval of, or vote on a proposed
action by a Partner given in accordance with this Agreement.
"Consent of the Limited Partners" means the Consent of a Majority In
Interest of the Limited Partners, which Consent shall be obtained prior to the
taking of any action for which it is required by this Agreement and which may be
given or withheld by a Majority in Interest of the Limited Partners, unless
otherwise expressly provided herein, in their sole and absolute discretion.
"Consent of the Partners" means the Consent of Partners holding
Percentage Interests that are greater than 66 2/3% of the aggregate Percentage
Interests of all Partners, which Consent shall be obtained prior to the taking
of any action for which it is required by this Agreement and may be given or
withheld by such Partners, in their sole and absolute discretion.
"Constructively Own" means ownership under the constructive ownership
rules described in Exhibit C.
"Debt" means, as to any Person, as of any date of determination, (i)
all indebtedness of such Person for borrowed money or for the deferred purchase
price of property or services; (ii) all amounts owed by such Person to banks or
other Persons in respect to reimbursement obligations under letters of credit,
surety bonds and other similar instruments guaranteeing payment or other
performance of obligations by such Person; (iii) all indebtedness for borrowed
money or for the deferred purchase price of property or services secured by any
lien on any property owned by such Person, to the extent attributable to such
Person's interest in such property, even though such Person has not assumed or
become liable for the payment thereof; and (iv) lease obligations of such Person
which, in accordance with generally accepted accounting principles, should be
capitalized.
"Depreciation" means, for each fiscal year or other period, an amount
equal to the depreciation, amortization or other cost recovery deduction
allowable with respect to an asset for such year or other period, except that if
the Gross Asset Value of an asset differs from its adjusted basis for federal
income tax purposes at the beginning of such year or other period, Depreciation
shall be an amount which bears the same ratio to such beginning Gross Asset
Value as the federal income tax depreciation, amortization or other cost
recovery deduction for such year or other period bears to such beginning
adjusted tax basis; provided, however, that if the federal income tax
depreciation, amortization or other cost recovery deduction for such year is
zero, Depreciation shall be determined with reference to such beginning Gross
Asset Value using any reasonable method selected by the General Partner.
"Effective Date" means the date this Amended and Restated Agreement has
been fully executed and delivered.
8.
50
"Exchange" shall have the meaning set forth in Section 8.6.A.
"Fair Market Value" means, with respect to any shares of capital stock
of the Company, the average of the daily market price for the ten (10)
consecutive trading days immediately preceding the date of the Notice of
Exchange. The market price for each such trading day shall be: (i) if such
shares are listed or admitted to trading on any securities exchange or the
Nasdaq National Market, the closing price, regular way, on such day, or if no
such sale takes place on such day, the average of the closing bid and asked
prices on such day, (ii) if such shares are not listed or admitted to trading on
any securities exchange or the Nasdaq National Market, the last reported sale
price on such day or, if no sale takes place on such day, the average of the
closing bid and asked prices on such day, as reported by a reliable quotation
source designated by a mutually acceptable investment banker, or (iii) if such
shares are not listed or admitted to trading on any securities exchange or the
Nasdaq National Market and no such last reported sale price or closing bid and
asked prices are available, the average of the reported high bid and low asked
prices on such day, as reported by a reliable quotation source designated by a
mutually acceptable investment banker, or if there shall be no bid and asked
prices on such day, the average of the high bid and low asked prices, as so
reported, on the most recent day (not more than 10 days prior to the date in
question) for which prices have been so reported; provided that, if there are no
bid and asked prices reported during the 10 days prior to the date in question,
the Fair Market Value of such shares shall be determined by the General Partner
acting in good faith on the basis of such quotations and other information as it
considers, in its reasonable judgment, appropriate.
"Funding Notice" shall have the meaning set forth in Section 4.3.B.
"General Partner" means Arden or its successors as general partner of
the Partnership.
"General Partner Interest" means a Partnership Interest held by the
General Partner.
"General Partner Loan" shall have the meaning set forth in Section
4.3.C.
"Gross Asset Value" means, with respect to any asset, the asset's
adjusted basis for federal income tax purposes, except as follows:
(a) The initial Gross Asset Value of any asset contributed by a
Partner to the Partnership shall be the gross fair market value of such asset,
as determined by the contributing Partner and the General Partner.
9.
51
(b) The Gross Asset Values of all Partnership assets shall be
adjusted to equal their respective gross fair market values, as determined by
the General Partner using such reasonable method of valuation as it may adopt,
as of the times listed below:
(1) the acquisition of an additional interest in the
Partnership by a new or existing Partner in exchange for more than a de minimis
Capital Contribution, if the General Partner reasonably determines that such
adjustment is necessary or appropriate to reflect the relative economic
interests of the Partners in the Partnership;
(2) the distribution by the Partnership to a Partner of more
than a de minimis amount of Partnership property as consideration for an
interest in the Partnership if the General Partner reasonably determines that
such adjustment is necessary or appropriate to reflect the relative economic
interests of the Partners in the Partnership;
(3) the liquidation of the Partnership within the meaning of
Regulations Section 1.704-1(b)(2)(ii)(g); and
(4) at such other times as the General Partner shall
reasonably determine necessary or advisable in order to comply with Regulations
Sections 1.704-1(b) and 1.704-2.
(c) The Gross Asset Value of any Partnership asset distributed to a
Partner shall be the gross fair market value of such asset on the date of
distribution as determined by the distributee and the General Partner, or if
the distributee and the General Partner cannot agree on such a determination, by
Appraisal.
(d) The Gross Asset Values of Partnership assets shall be increased
(or decreased) to reflect any adjustments to the adjusted basis of such assets
pursuant to Code Section 734(b) or Code Section 743(b), but only to the extent
that such adjustments are taken into account in determining Capital Accounts
pursuant to Regulations Section 1.704-1(b)(2)(iv)(m); provided, however, that
Gross Asset Values shall not be adjusted pursuant to this subparagraph (d) to
the extent that the General Partner reasonably determines that an adjustment
pursuant to subparagraph (b) is necessary or appropriate in connection with a
transaction that would otherwise result in an adjustment pursuant to this
subparagraph (d).
(e) If the Gross Asset Value of a Partnership asset has been
determined or adjusted pursuant to subparagraph (a), (b) or (d) , such Gross
Asset Value shall thereafter be adjusted by the Depreciation taken into account
with respect to such asset for purposes of computing Net Income and Net Losses.
10.
52
"Guarantors" means A.S. Xxxxxxxx, as Trustee of the A.S. Xxxxxxxx
Family Trust, and Xx X. Xxxxxxxx, as Trustee of the Xx X. Xxxxxxxx Separate
Property Trust.
"Holder" means either the Partner or Assignee owning a Partnership
Interest.
"IRS" means the Internal Revenue Service, which administers the
internal revenue laws of the United States.
"Immediate Family" means, with respect to any natural Person, such
natural Person's estate or heirs or current spouse, parents, parents-in-law,
children, siblings and grandchildren and any trust or estate, all of the
beneficiaries of which consist of such Person or such Person's spouse, parents,
parents-in-law, children, siblings or grandchildren.
"Incapacity" or "Incapacitated" means, (i) as to any individual
Partner, death, total physical disability or entry by a court of competent
jurisdiction adjudicating him or her incompetent to manage his or her Person or
his or her estate; (ii) as to any corporation which is a Partner, the filing of
a certificate of dissolution, or its equivalent, for the corporation or the
revocation of its charter; (iii) as to any partnership which is a Partner, the
dissolution and commencement of winding up of the partnership; or (iv) as to any
Partner, the bankruptcy of such Partner. For purposes of this definition,
bankruptcy of a Partner shall be deemed to have occurred when (a) the Partner
commences a voluntary proceeding seeking liquidation, reorganization or other
relief under any bankruptcy, insolvency or other similar law now or hereafter in
effect, (b) the Partner is adjudged as bankrupt or insolvent, or a final and
nonappealable order for relief under any bankruptcy, insolvency or similar law
now or hereafter in effect has been entered against the Partner, (c) the Partner
executes and delivers a general assignment for the benefit of the Partner's
creditors, (d) the Partner files an answer or other pleading admitting or
failing to contest the material allegations of a petition filed against the
Partner in any proceeding of the nature described in clause (b) above, (e) the
Partner seeks, consents to or acquiesces in the appointment of a trustee,
receiver or liquidator for the Partner or for all or any substantial part of the
Partner's properties, (f) any proceeding seeking liquidation, reorganization or
other relief under any bankruptcy, insolvency or other similar law now or
hereafter in effect has not been dismissed within 120 days after the
commencement thereof, (g) the appointment without the Partner's consent or
acquiescence of a trustee, receiver of liquidator has not been vacated or stayed
within 90 days of such appointment, or (h) an appointment referred to in clause
(g) is not vacated within 90 days after the expiration of any such stay.
"Indemnitee" means (i) any Person made a party to a proceeding by
reason of his or her status as (A) a Partner or (B) a director
11.
53
or officer of the Partnership or the General Partner, and (ii) such other
Persons (including Affiliates of the General Partner or the Partnership) as the
General Partner may designate from time to time, in its sole and absolute
discretion.
"Indemnitor" means A.S. Xxxxxxxx, individually and as Trustee of the
A.S. Xxxxxxxx Family Trust, and Xx X. Xxxxxxxx, individually and as Trustee of
the Xx X. Xxxxxxxx Separate Property Trust.
"Limited Partner" means any Person named as a Limited Partner in
Exhibit A attached hereto, as such Exhibit may be amended from time to time, or
any Substituted Limited Partner or Additional Limited Partner, in such Person's
capacity as a Limited Partner in the Partnership.
"Limited Partnership Interest" means a Partnership Interest of a
Limited Partner representing a fractional part of the Partnership Interests of
all Limited Partners and includes any and all benefits to which the holder of
such a Partnership Interest may be entitled as provided in this Agreement,
together with all obligations of such Person to comply with the terms and
provisions of this Agreement.
"Liquidating Events" shall have the meaning set forth in Section 13.1.
"Liquidator" shall have the meaning set forth in Section 13.2.A.
"Majority in Interest of the Limited Partners" means Limited Partners
(other than any Limited Partner which is an Affiliate of the General Partner)
holding Percentage Interests that are greater than fifty percent (50%) of the
aggregate Percentage Interests of all Limited Partners (other than any Limited
Partner 50% or more whose equity is owned, directly or indirectly, by the
General Partner).
"Majority of Remaining Partners" means Partners other than the General
Partner owning (i) greater than fifty percent (50%) of the profits interests in
the Partnership held by all Partners other than the General Partner, determined
and allocated based on any reasonable estimate of profits from the relevant date
to the projected termination of the Partnership and taking into account present
and future allocations of profits under this Agreement as it is in effect on the
relevant date, and (ii) greater than fifty percent (50% of the capital interests
in the Partnership, determined as of the relevant date under this Agreement,
owned by all the Partners other than the General Partner.
"Net Income" or "Net Loss" means for each fiscal year of the
Partnership, an amount equal to the Partnership's taxable income or loss for
such fiscal year as determined in accordance with Code Section 703(a) (for this
purpose, all items of income, gain loss,
12.
54
or deduction required to be stated separately pursuant to Code Section 703(a)(1)
shall be included in taxable income or loss) with the following adjustments:
(a) Any income of the Partnership that is exempt from federal
income tax and not otherwise taken into account in computing Net Income or Net
Loss pursuant to this definition of Net Income or Net Loss shall be added to
such taxable income or loss;
(b) Any expenditures of the Partnership described in Code Section
705(a)(2)(B) or treated as Code Section 705(a)(2)(B) expenditures pursuant to
Regulations Section 1.704-1(b)(2)(iv)(i), and not otherwise taken into
account in computing Net Income or Net Loss pursuant to this definition of Net
Income or Net Loss shall be subtracted from such taxable income or loss;
(c) In the event the Gross Asset Value of any Partnership asset
is adjusted pursuant to subparagraph (b) or subparagraph (c) of the definition
of Gross Asset Value, the amount of such adjustment shall be taken into account
as gain or loss from the disposition of such asset for purposes of computing Net
Income or Net Loss;
(d) Gain or loss resulting from any disposition of property with
respect to which gain or loss is recognized for federal income tax purposes
shall be computed by reference to the Gross Asset Value of the property disposed
of, notwithstanding that the adjusted tax basis of such property differs from
its Gross Asset Value;
(e) In lieu of the depreciation, amortization, and other cost
recovery deductions taken into account in computing such taxable income or loss,
there shall be taken into account Depreciation for such fiscal year;
(f) To the extent an adjustment to the adjusted tax basis of any
Partnership asset pursuant to Code Section 734(b) or Code Section 743(b) is
required pursuant to Regulations Section 1.704-1(b)(2)(iv)(m)(4) to be
taken into account in determining Capital Accounts as a result of a distribution
other than in liquidation of a Partner's interest in the Partnership, the amount
of such adjustment shall be treated as an item of gain (if the adjustment
increases the basis of the asset) or loss (if the adjustment decreases the basis
of the asset) from the disposition of the asset and shall be taken into account
for purposes of computing Net Income or Net Loss; and
(g) Notwithstanding any other provision of this definition of Net
Income or Net Loss, any items which are specially allocated pursuant to Section
6.3 hereof shall not be taken into account in computing Net Income or Net Loss.
The amounts of the items of Partnership income, gain, loss, or deduction
available to be specially allocated pursuant to Section 6.3 hereof shall be
13.
55
determined by applying rules analogous to those set forth in this definition of
Net Income or Net Loss.
"Nonrecourse Deductions" shall have the meaning set forth in
Regulations Section 1.704-2(b)(1), and the amount of Nonrecourse Deductions
for a Partnership Year shall be determined in accordance with the rules of
Regulations Section 1.704-2(c).
"Nonrecourse Liability" shall have the meaning set forth in
Regulations Section 1.752-1(a)(2).
"Notice of Exchange" means the Notice of Exchange substantially in the
form of Exhibit B to this Agreement.
"OP Unit" means, with respect to a limited partnership interest in the
General Partner, a fractional, undivided share of such "Partnership Interest"
(as defined in the Amended and Restated Agreement of Limited Partnership of the
General Partner) ("General Partner's Agreement").
"Partner" means a General Partner or a Limited Partner, and "Partners"
means the General Partner and the Limited Partners.
"Partner Minimum Gain" means an amount, with respect to each Partner
Nonrecourse Debt, equal to the Partnership Minimum Gain that would result if
such Partner Nonrecourse Debt were treated as a Nonrecourse Liability,
determined in accordance with Regulations Section 1.704-2(i)(3).
"Partner Nonrecourse Debt" shall have the meaning set forth in
Regulations Section 1.704-2(b)(4).
"Partner Nonrecourse Deductions" shall have the meaning set forth in
Regulations Section 1.704-2(i)(2), and the amount of Partner Nonrecourse
Deductions with respect to a Partner Nonrecourse Debt for a Partnership Year
shall be determined in accordance with the rules of Regulations Section
1.704-2(i)(2).
"Partnership" means the limited partnership formed under the Act and
pursuant to this Agreement, and any successor thereto.
"Partnership Interest" means, an ownership interest in the
Partnership of either a Limited Partner or the General Partner and includes any
and all benefits to which the holder of such a Partnership Interest may be
entitled as provided in this Agreement, together with all obligations of such
Person to comply with the terms and provisions of this Agreement. The
Partnership Interest of any Partner shall be adjusted to give effect to all
Capital Contributions made to the Partnership after the Effective Date as set
forth in Section 4.3.
"Partnership Minimum Gain" shall have the meaning set forth in
Regulations Section 1.704-2(b)(2), and the amount of Partnership
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Minimum Gain, as well as any net increase or decrease in Partnership Minimum
Gain, for a Partnership Year shall be determined in accordance with the rules of
Regulations Section 1.704-2(d).
"Partnership Record Date" means the record date established by the
General Partner for the distribution of Available Cash pursuant to Section 5.1
hereof which record date shall be the same as the record date established by the
Company for a distribution to its stockholders of some or all of its portion of
such distribution.
"Partnership Unit" means, with respect to any class of Partnership
Interest, a fractional, undivided share of such class of Partnership Interest
issued pursuant to Sections 4.1 and 4.3. The ownership of Partnership Units may
be evidenced by a certificate for units substantially in the form of Exhibit D
hereto or as the General Partner may determine with respect to any class of
Partnership Units issued from time to time under Section 4.1 and 4.3.
"Partnership Year" means the fiscal year of the Partnership, which
shall be the calendar year.
"Percentage Interest" means, as to a Partner holding a Partnership
Interest, its interest in the Partnership as specified in Exhibit A attached
hereto, as such Exhibit may be amended from time to time and may be evidenced by
a certificate substantially in the form of Exhibit D hereto or as the General
Partner may determine with respect to any class of Partnership Interests issued
from time to time under Section 4.1 and 4.3.
"Person" means an individual or a corporation, partnership, trust,
unincorporated organization, association or other entity.
"Pledge" shall have the meaning set forth in Section 11.3.A.
"Preferred Contribution" shall have the meaning set forth in Section
4.3.G.
"Properties" means such interests in real property and personal
property including without limitation, fee interests, interests, in ground
leases, interests in joint ventures, interests in mortgages, and debt
instruments as the Partnership may hold from time to time.
"Property" means that certain real property commonly known as 0000
Xxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000 which is improved with a
twenty-two (22) story high-rise office building and other improvements and
facilities.
"Prudential Loan" shall have the meaning set forth in Section 4.3.D.
"Qualified Transferee" means an "Accredited Investor" as defined in
Rule 501 promulgated under the Securities Act.
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"Refinanced Debt" shall have the meaning set forth in Section 4.3.D.
"Regulations" means the Income Tax Regulations promulgated under the
Code, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Regulatory Allocations" shall have the meaning set forth in Section
6.3.A(8) of this Agreement.
"REIT" means a real estate investment trust under Section 856 of the
Code.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Securities and Exchange Commission promulgated
thereunder.
"Securities Exchange Act" means the Securities Act of 1934, as amended,
and the rules and regulations of the Securities and Exchange Commission
promulgated thereunder.
"Specified Exchange Date" means the day of receipt by the General
Partner of a Notice of Exchange.
"Subsidiary" means, with respect to any Person, any corporation or
other entity of which a majority of (i) the voting power of the voting equity
securities or (ii) the outstanding equity interests is owned, directly or
indirectly, by such Person.
"Substituted Limited Partner" means a Person who is admitted as a
Limited Partner to the Partnership pursuant to Section 11.4.
"Tax Items" shall have the meaning set forth in Section 6.4.A.
"Tenant" means any tenant from which the General Partner derives rent
either directly or indirectly through partnerships, including the Partnership.
"Tendered Units" shall have the meaning set forth in Section 8.6.A.
"Tendering Partner" shall have the meaning set forth in Section 8.6.A.
"Terminating Capital Transaction" means any sale or other disposition
of all or substantially all of the assets of the Partnership or a related series
of transactions that, taken together, result in the sale or other disposition of
all or substantially all of the assets of the Partnership.
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ARTICLE 2
ORGANIZATIONAL MATTERS
Section 2.1 Organization. The Partnership is a limited partnership and
elects as of the Effective Date to be governed by the Act and upon the terms and
conditions set forth in this Agreement. Except as expressly provided herein, the
rights and obligations of the Partners and the administration and termination of
the Partnership shall be governed by the Act. The Partnership Interest of each
Partner shall be personal property for all purposes.
Section 2.2 Name. The name of the Partnership is Westwood Center, a
California Limited Partnership. The Partnership's business may be conducted
under any other name or names deemed advisable by the General Partner, including
the name of the General Partner or any Affi1iate thereof. The words "Limited
Partnership, "L.P.," "Ltd," or similar words or letters shall be included in the
Partnership's name where necessary for the purposes of complying with the laws
of any jurisdiction that so requires. The General Partner in its sole and
absolute discretion may change the name of the Partnership at any time and from
time to time and shall notify the Limited Partners of such change in the next
regular communication to the Limited Partners.
Section 2.3 Resident Agent; Principal Office. The name and address of
the resident agent of the Partnership in the State of California is Xxxxxx X.
Xxxxxxx, 0000 Xxxxxxxx Xxxxxxxxx, Xxxx Xxxxx, Xxxxx 000, Xxxxxxx Xxxxx,
Xxxxxxxxxx 00000. The address of the principal office of the Partnership is
located at 0000 Xxxxxxxx Xxxxxxxxx, Xxxx Tower, Suite 700, Beverly Hills,
California 90212, or such other place as the General Partner may from time to
time designate by notice to the Limited Partners. The Partnership may maintain
offices at such other place or places within or outside the State of California
as the General Partner deems advisable.
Section 2.4 Power of Attorney.
A. Each Limited Partner and each Assignee constitutes and appoints the
General Partner, any Liquidator, and authorized officers and attorneys-in-fact
of each, and each of those acting singly, in each case with full power of
substitution, as its true and lawful agent and attorney-in-fact, with full power
and authority in its name, place and stead to:
(1) execute, swear to, acknowledge, deliver, file and record in the
appropriate public offices (a) all certificates, documents and other instruments
(including, without limitation, this Agreement and the Certificate and all
amendments or restatements thereof) that the General Partner or the Liquidator
deems appropriate or necessary to form, qualify or continue the existence or
qualification of the Partnership as a limited partnership (or a partnership in
which the Limited Partners have limited liability)
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59
in the State of California and in all other jurisdictions in which the
Partnership may conduct business or own property; (b) all instruments that the
General Partner or any Liquidator deems appropriate or necessary to reflect any
amendment, change, modification or restatement of this Agreement in accordance
with its terms; (c) all conveyances and other instruments or documents that the
General Partner or any Liquidator deems appropriate or necessary to reflect the
dissolution and liquidation of the Partnership pursuant to the terms of this
Agreement, including, without limitation, a certificate of cancellation; (d) all
instruments relating to the admission, withdrawal, removal or substitution of
any Partner pursuant to, or other events described in, Article 11 or 12 hereof
or the Capital Contribution of any Partner; and (e) all certificates, documents
and other instruments relating to the determination of the rights, preferences
and privileges of Partnership Interests; and
(2) execute, swear to, acknowledge and file all ballots, consents,
approvals, waivers, certificates and other instruments appropriate or necessary,
in the sole and absolute discretion of the General Partner or any Liquidator, to
evidence, or confirm any vote, consent, approval, agreement or other action
which is made or given by the Partners hereunder or is consistent with the terms
of this Agreement or appropriate or necessary, in the sole discretion of the
General Partner or any Liquidator, to effectuate the terms or intent of this
Agreement.
Nothing contained herein shall be construed as authorizing the General Partner
or any Liquidator to amend this Agreement except in accordance with Article 14
hereof or as may be otherwise expressly provided for in this Agreement.
B. The foregoing power of attorney is hereby declared to be irrevocable
and a power coupled with an interest, in recognition of the fact that each of
the Partners will be relying upon the power of the General Partner and any
Liquidator to act as contemplated by this Agreement in any filing or other
action by it on behalf of the Partnership, and it shall survive and not be
affected by the subsequent Incapacity of any Limited Partner or Assignee and the
transfer of all or any portion of such Limited Partner's or Assignee's
Partnership Interest and shall extend to such Limited Partner's or Assignee's
heirs, successors, assigns and personal representatives. Each such Limited
Partner or Assignee hereby agrees to be bound by any representation made by the
General Partner or any Liquidator, acting in good faith pursuant to such power
of attorney; and each such Limited Partner or Assignee hereby waives any and all
defenses which may be available to contest, negate or disaffirm the action of
the General Partner or any Liquidator, taken in good faith under such power of
attorney. Each Limited Partner or Assignee shall execute and deliver to the
General Partner or any Liquidator, within 15 days after receipt of the General
Partner's or Liquidator's request therefor, such further designation, powers of
attorney and other instruments as
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the General Partner or the Liquidator, as the case may be, deems necessary to
effectuate this Agreement and the purposes of the Partnership.
Section 2.5 Term. The term of the Partnership commenced on June 8, 1965
and shall continue until December 31, 2096 unless it is dissolved sooner
pursuant to the provisions of Article 13 or as otherwise provided by law.
Section 2.6 Number of Partners. The Partnership shall not at any time
have more than 100 partners (including as partners those persons indirectly
owning an interest in the Partnership through a partnership, limited liability
company, S corporation or grantor trust (such entity, a "flow through entity"),
but only if substantially all of the value of such person's interest in the flow
through entity is attributable to the flow through entity's interest (direct or
indirect) in the Partnership).
ARTICLE 3
PURPOSE
Section 3.1 Purpose and Business. The purpose and nature of the
business to be conducted by the Partnership is (i) to own, operate, renovate,
rehabilitate and manage as a long term investment that certain real property
improved with a twenty-two story high-rise office building located at 0000
Xxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, commonly known as Westwood Center
(the "Property"), (ii) to conduct any business that may be lawfully conducted by
a limited partnership organized pursuant to the Act, (iii) to enter into any
partnership, joint venture or other similar arrangement to engage in any
business described in the foregoing clause (i) or to own interests in any entity
engaged, directly or indirectly, in any such business and (iv) to do anything
necessary or incidental to the foregoing. In furtherance of the foregoing and
not in limitation thereof, the Limited Partners understand and acknowledge the
announced intention of the General Partner commencing with the Effective Date to
attempt to implement and carry out a plan in one or more phases to totally and
completely renovate, retrofit, rehabilitate and remodel the Property through
additional Capital Contributions, and loans in its sole and unfettered
discretion and without the approval or consent of the Limited Partners and which
action may significantly dilute the Percentage Interests of the Limited
Partners.
Section 3.2 Powers. Subject to the limitations specifically and
expressly set forth in this Agreement, the Partnership is empowered to do any
and all acts and things necessary, appropriate, proper, advisable, incidental to
or convenient for the furtherance and accomplishment of the purposes and
business described herein and for the protection and benefit of the Partnership,
including, without limitation, full power and authority, directly or through its
ownership interest in other entities, to enter into, perform
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and carry out contracts of any kind, borrow money and issue evidences of
indebtedness, whether or not secured by mortgage, deed of trust, pledge or other
lien, acquire and develop real property, and lease, sell, transfer and dispose
of real property; provided, however, that the Partnership shall not take, or
refrain from taking, any action which, in the judgment of the Company or the
General Partner, in either of their sole and absolute discretion, (i) would
adversely affect the ability of the Company to continue to quality as a REIT,
(ii) would subject the Company to any taxes under Section 857 or Section 4981 of
the Code, (iii) would violate any law or regulation of any governmental body or
agency having jurisdiction over the Company or any of its securities, unless any
such action (or inaction) under (i) , (ii) or (iii) shall have been specifically
consented to by the Company in writing or (iv) would constitute a breach of a
fiduciary duty by its officers or directors to the Company's shareholders. If
any action or inaction authorized pursuant to the foregoing sentence (including
any amendment to this Agreement authorized by Section 7.3.C.(3)) would cause the
Guarantors to recognize a material and adverse income tax consequence, prior to
such event, the General Partner and the Guarantors will negotiate in good faith
to attempt to prevent such tax consequence.
Section 3.3 Partnership Only for Purposes Specified. The Partnership
shall be a partnership only for the purposes specified in Section 3.1 hereof,
and this Agreement shall not be deemed to create a partnership among the
Partners with respect to any activities whatsoever other than the activities
within the purposes of the Partnership as specified in Section 3.1 hereof.
Except as otherwise provided in this Agreement, no Partner shall have any
authority to act for, bind, commit or assume any obligation or responsibility on
behalf of the Partnership, its properties or any other Partner. Except as to the
guaranties required of the Guarantors pursuant to Section 4.3.D below, no
Partner, in its capacity as a Partner under this Agreement, shall be responsible
or liable for any indebtedness or obligation of another Partner, nor shall the
Partnership be responsible or liable for any indebtedness or obligation of any
Partner, incurred either before or after the execution and delivery of this
Agreement by such Partner, except as to those responsibilities, liabilities,
indebtedness or obligations incurred pursuant to and as limited by the terms of
this Agreement and the Act.
Section 3.4 Representations and Warranties by the Parties
A. Each Partner that is an individual represents and warrants to each
other Partner that (i) such Partner has the legal capacity to enter into this
Agreement and perform such Partner's obligations hereunder, (ii) the
consummation of the transactions contemplated by this Agreement to be performed
by such Partner will not result in a breach or violation of, or a default under,
any agreement by which such Partner or any of such Partner's property is or are
bound, or any statute, regulation, order or other law to
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which such Partner is subject, (iii) such Partner is neither a "foreign person"
within the meaning of Section 1445(f) of the Code nor a "foreign partner" within
the meaning of Section 1446(e) of the Code, and (iv) this Agreement is binding
upon, and enforceable against, such Partner in accordance with its terms.
B. Each Partner that is not an individual represents and warrants to
each other Partner that (i) all transactions contemplated by this Agreement to
be performed by it have been duly authorized by all necessary action, including
without limitation, that of its general partner(s), committee(s), trustee(s),
beneficiaries, directors and/or stockholder(s), as the case may be, as
required, (ii) the consummation of such transactions shall not result in a
breach or violation of, or a default under, its partnership agreement, trust
agreement, charter or by-laws, as the case may be, any agreement by which such
Partner or any of such Partner's properties or any of its partners,
beneficiaries, trustees or stockholders, as the case may be, is or are bound, or
any statute, regulation, order or other law to which such Partner or any of its
partners, trustees, beneficiaries or stockholders, as the case may be, is or are
subject, (iii) such Partner is neither a "foreign person" within the meaning of
Section 1445(f) of the Code nor a "foreign partner" within the meaning of
Section 1446(e) of the Code, and (iv) this Agreement is binding upon, and
enforceable against, such Partner in accordance with its terms.
C. Each Partner represents, warrants and agrees that it has acquired
and continues to hold its interest in the Partnership for its own account for
investment only and not for the purpose of, or with a view toward, the resale or
distribution of all or any part thereof, nor with a view toward selling or
otherwise distributing such interest or any part thereof at any particular time
or under any predetermined circumstances. Each Partner further represents and
warrants that it is a sophisticated investor, able and accustomed to handling
sophisticated financial matters for itself, particularly real estate
investments, and that it has a sufficiently high net worth that it does not
anticipate a need for the funds it has invested in the Partnership in what it
understands to be a highly speculative and illiquid investment.
D. Each Partner further represents, warrants and agrees as follows:
(1) To such Partner's actual knowledge, except as provided in
Exhibit F, it does not, and agrees that it will not without the prior written
consent of the General Partner, actually own or Constructively Own, any stock in
the Company, other than as a result of an exchange of Tendered Units pursuant to
Section 8.6.
(2) Upon request of the General Partner, it will disclose to the
General Partner the amount of shares of the Company that it actually owns or
Constructively Owns.
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E . The representations and warranties contained in Sections 3.4.A,
3.4.B, 3.4.C and 3.4.D hereof shall survive the execution and delivery of this
Agreement by each Partner and the dissolution and wind up of the Partnership.
F. Each Partner hereby acknowledges that no representations as to
potential profit, cash flows, funds from operations or yield, if any, in respect
of the Partnership or the General Partner have been made by any Partner or any
employee or representative or Affiliate of any Partner, and that projections and
any other information, including, without limitation, financial and descriptive
information and documentation, which may have been in any manner submitted to
such Partner shall not constitute any representation or warranty of any kind or
nature, express or implied.
ARTICLE 4
CAPITAL CONTRIBUTIONS
Section 4.1 Capital Contribution of the Partners. As of the Effective
Date (a) the General Partner shall make the Capital Contribution as set forth in
Exhibit A to this Agreement; (b) Xxxxxxxx Trust, Xxxxx Xxxxx Xxxxxxxx, Xxxxxx
Xxxx Xxxxxxxx and Xxxxxxxxx Xxxx shall contribute a portion of the interest due
on their notes receivable from the Partnership as set forth on Exhibit A to the
Capital of the Partnership as a Capital Contribution; (c) Xxxxxxxx Trust,
Xxxxxxxx Trust, Xxxxx Xxxxx Xxxxxxxx, Xxxxxx Xxxx Xxxxxxxx, ________________,
Executor of the Estate of Xxxx Xxxxxxxx Xxxxxxx and Xxxxxx X. Xxxxxxxx XX shall
retain as Capital in the Partnership the agreed value set forth opposite their
names in Exhibit A; and (d) Xxxxxxxx Trust will contribute as a Capital
Contribution additional cash as a Limited Partner in the amount shown on Exhibit
A. The Partners shall own Partnership Interests in the amounts set forth in
Exhibit A and shall have a Percentage Interest in the Partnership as set forth
in Exhibit A, which Percentage Interest shall be adjusted in Exhibit A from time
to time by the General Partner to the extent necessary to reflect accurately
exchanges, redemptions, Capital Contributions, the issuance of additional
Partnership Interests or similar events having an effect on a Partner's
Percentage Interest; provided that, except as a result of Exchanges, the Limited
Partners in the aggregate shall at all times have at least a one percent (1%)
interest in the Partnership. Except as required by law or as otherwise provided
in Section 4.3, no Partner shall be required or permitted to make any additional
Capital Contributions or loans to the Partnership.
Section 4.2 Loans by Third Parties. Subject to Section 4.3, the
Partnership may incur Debt, or enter into other similar credit, guarantee,
financing or refinancing arrangements for any purpose (including, without
limitation, in connection with any further acquisition of Properties) with any
Person that is not the General Partner upon such terms as the General Partner
determines
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appropriate; provided that, the Partnership shall not incur any Debt that is
recourse to the General Partner, except to the extent otherwise agreed to by the
General Partner in its sole discretion.
Section 4.3 Additional Funding and Capital Contributions.
A. General. The General Partner may, at any time and from time to time,
determine that the Partnership requires additional funds ("Additional Funds")
for such Partnership purposes as the General Partner may determine. Additional
Funds may be raised by the Partnership, at the election of the General Partner,
in any manner provided in, and in accordance with, the terms of this Section
4.3. No Person shall have any preemptive, preferential or similar right or
rights to subscribe for or acquire any Partnership Interest.
B. Funding Notice. The General Partner shall give written notice (the
"Funding Notice") to the Limited Partners of the need for Additional Funds when
in excess, at any one time, of $100,000 and the anticipated source(s) thereof.
C. General Partner Loans. The General Partner may lend the Additional
Funds to the Partnership (a "General Partner Loan"). If the General Partner
enters into a loan to the Partnership, the General Partner Loan will be at an
interest rate of ten (10%) percent per annum.
D. Prudential Loan Refinancing. Notwithstanding anything to the
contrary contained in this Article 4, the General Partner has agreed that with
respect to that certain first trust deed loan in favor of The Prudential
Insurance Company of America in the original principal amount of $16,000,000 and
dated June 5, 1985 (the "Prudential Loan"), and all subsequent first trust deed
loans secured by the Property, the General Partner shall obtain and shall be
solely responsible for obtaining at the cost and expense of and on behalf of the
Partnership refinancing of the unpaid principal balance and accrued but unpaid
interest on the Prudential Loan or the Refinanced Debt, as the case may be,
whether at the maturity, earlier acceleration or voluntary prepayment thereof
(which voluntary prepayment shall be made only upon the election by the General
Partner in its sole discretion) in a transaction or by means whereby (i) there
is a new first trust deed loan secured by the Property in the principal amount
of no less than (a) the then outstanding principal balance of the Prudential
Loan ("Refinanced Debt") or, (b) to the extent the Prudential Loan has been
previously repaid by Refinanced Debt, the then outstanding principal balance of
such Refinanced Debt, (ii) the new loan provides for regular amortization over a
period of not less than twenty-five (25) years so that at all times the
Partnership will have secured debt of not less than the then outstanding
principal balance of the Prudential Loan or the Refinanced Debt, as the case may
be, at the time of said refinancing less amounts previously paid by regular
monthly debt service to amortize such Refinanced
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Debt and (iii) Guarantors are required to give concurrent "bottom dollar"
guaranties with respect to the Refinanced Debt (as hereinafter defined) in the
amount of $10,700,000 and $2,300,000, respectively, so that at all times
Guarantors will have personal liability for $10,700,000 and $2,300,000,
respectively, less principal amounts previously paid by regular monthly debt
service to amortize such Refinanced Debt. Such "bottom dollar" guaranties shall
be in form and substance provided by the Guarantors and reasonably acceptable to
the General Partner and must provide that (i) the lender must first foreclose on
the Property and reduce the amount of the guaranties by the amount of the
proceeds from such foreclosure sale before exercising its rights against
Guarantors; (ii) Guarantors will have no personal liability to the extent of any
reduction in value of the Property due to an earthquake and (iii) the term of
each "bottom dollar" guaranty would be for the life of the Refinanced Debt
subject to earlier termination separately as to each Guarantor thirty (30) days
after the death of that particular Guarantor or his spouse. If the General
Partner elects not to refinance the Prudential Loan prior to the maturity or
earlier acceleration thereof, it shall not be in violation of this Section 4.3.D
as a result of the amortization currently required under the Prudential Loan.
Notwithstanding anything to the contrary in this Section 4.3.D, the amount of
the required Refinanced Debt may be further reduced by the amount of $10,700,000
upon the death of Xx X. Xxxxxxxx or his spouse and/or by the amount of
$2,300,000 upon the death of A.S. Xxxxxxxx or his spouse. A dissolution, merger,
consolidation reorganization or other combination of the Partnership which
results in the termination of the Partnership and that is made in compliance
with the provisions of Section 7.3.E.(2) shall not constitute a default by the
General Partner under this Section 4.3.D.
E. Issuance of Additional Partnership Interests. If specified in the
Funding Notice to the Limited Partners, the General Partner, in its sole and
absolute discretion, may raise all or any portion of the Additional Funds by
accepting additional Capital Contributions, subject to Section 4.3.F in the
event additional Capital Contributions are made in cash. In connection with any
such additional Capital Contributions (of cash or property), the General Partner
is hereby authorized to cause the Partnership from time to time to issue to
Partners (including the General Partner) or other persons (including, without
limitation, in connection with the contribution of property to the Partnership)
additional Partnership Interests as shall be determined by the General Partner
in its sole and absolute discretion subject to Section 4.3.G hereof and
California law, including without limitation, the allocations of items of
Partnership income, gain, loss and deduction.
F. Participation Rights of Partners. The Funding Notice delivered by
the General Partner prior to its making or accepting (on behalf of the
Partnership) any additional cash Capital Contributions pursuant to Section 4.3.E
hereof shall contain the
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total amount of additional Capital Contributions sought to be made to the
Partnership, and the terms and conditions pertaining thereto. Each Limited
Partner may elect to make an additional Capital Contribution not to exceed the
product of (i) the total amount of additional Capital Contributions being
sought, and (ii) such Limited Partner's Percentage Interest (with such product
deemed the "Pro Rata Contribution"). For purposes of determining the Limited
Partner's Pro Rata Contribution (or the Pro Rata Participation (as defined
below) ) , the Limited Partner's Percentage Interest shall mean the Percentage
Interest with respect to the Partnership Interests issued to the Limited Partner
on the Effective Date. Such election shall be made, if at all, by providing
written notice thereof (the "Election Notice") to the General Partner within
five (5) days after delivery of the Funding Notice. Failure to respond to such
Funding Notice shall be deemed to be an election by such Limited Partner not to
make such Capital Contribution. Such Election Notice shall contain the amount of
the additional Capital Contribution, if any, such Limited Partner is electing to
make (such additional Capital Contribution not to exceed the Pro Rata
Contribution).
G. Percentage Interest Adjustments in the Case of Capital
Contributions. Upon the acceptance of additional Capital Contributions the
Percentage Interest related thereto shall be equal to a fraction, the numerator
of which is equal to the amount of cash contributed and the denominator of which
is equal to the sum of (i) the aggregate amount of Capital Contributions
contributed by all Partners prior to the Business Day immediately preceding the
date on which the additional Capital Contributions are made ["Adjustment Date"])
and (ii) the aggregate amount of additional Capital Contributions contributed by
all Partners and/or third parties to the Partnership on such Adjustment Date in
respect of such class of Partnership Interests. The Percentage Interest of each
other Partner holding Partnership Interests of such class not making a full pro
rata Capital Contribution shall be adjusted to equal to a fraction, the
numerator of which is equal to the sum of (i) the aggregate amount of Capital
Contributions contributed by such Limited Partner (computed as of the Business
Day immediately preceding the Adjustment Date) and (ii) the amount of additional
Capital Contributions, if any, made by such Partner to the Partnership in
respect of such class of Partnership Interests as of such Adjustment Date, and
the denominator of which is equal to the sum of (i) the aggregate amount of
Capital Contributions contributed by all Partners prior to the Business Day
immediately preceding the Adjustment Date), plus (ii) the aggregate amount of
additional Capital Contributions contributed by all Partners and/or third
parties to the Partnership on such Adjustment Date in respect of such class. The
General Partner shall promptly give each Partner written notice of its
Percentage Interest, as adjusted. If as a result of Additional Capital
Contributions by the General Partner, the Percentage Interest of the Limited
Partners would drop below one percent (1%) but for the penultimate sentence of
Section 4.1, the General Partner is empowered to cause an amendment to this
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Agreement to treat such excess Additional Capital Contributions as a "Preferred
Contribution" which will entitle the General Partner to cumulative preferential
distributions (and allocations) from the Partnership until such Preferred
Contribution(s) and a return thereon of fifteen percent (50%) per annum,
compounded, has been received by the General Partner on account thereof.
ARTICLE 5
DISTRIBUTIONS
Section 5.1 Requirement and Characterization of Distributions. The
General Partner shall cause the Partnership to distribute quarterly all, or such
portion as the General Partner may in its discretion determine, of Available
Cash generated by the Partnership during such quarter to the Partners who are
Partners on the Partnership Record Date with respect to such quarter, (1) first,
with respect to any Partnership Interests that are entitled to any preference in
distribution, (and pro rata in proportion to the respective Percentage Interests
on such Partnership Record Date), and, (2) second, with respect to Partnership
Interests that are not entitled to any preference in distribution, pro rata to
each such class in accordance with the terms of such class (and within each such
class, pro rata in proportion with the respective Percentage Interests on such
Partnership Record Date). Unless otherwise expressly provided for herein or in
an agreement at the time a new class of Partnership Interests is created in
accordance with Article 4 hereof, no Partnership Interest shall be entitled to a
distribution in preference to any other Partnership Interest. The General
Partner shall use its best efforts to distribute sufficient cash to allow
Partners to pay tax on Net Income.
Section 5.2 Distributions in Kind. No right is given to any Partner to
demand and receive property other than cash. The General Partner may determine,
in its sole and absolute discretion, to make a distribution in kind to the
Partners of Partnership assets, and such assets shall be distributed in such a
fashion as to ensure that the fair market value is distributed and allocated in
accordance with Articles 5 and 6.
Section 5.3 Distributions Upon Liquidation. Proceeds from a Terminating
Capital Transaction shall be distributed to the Partners in accordance with
Section 13.2.
Section 5.4 Distribution to Reflect Issuance of Additional Partnership
Interests. In the event that the Partnership issues additional Partnership
Interests to the General Partner or any Additional Limited Partner pursuant to
Section 4.3 hereof, the General Partner shall make such revisions to this
Article 5 as it determines are necessary to reflect the issuance of such
additional Partnership Interests.
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ARTICLE 6
ALLOCATIONS
Section 6.1 Timing and Amount of Allocations of Net Income and Net
Loss. Net Income and Net Loss of the Partnership shall be determined and
allocated with respect to each fiscal year of the Partnership as of the end of
each such year. Subject to the other provisions of this Article 6, an allocation
to a Partner of a share of Net Income or Net Loss shall be treated as an
allocation of the same share of each item of income, gain, loss or deduction
that is taken into account in computing Net Income or Net Loss.
Section 6.2 General Allocations.
A. Except as otherwise provided in this Article 6, Net Income and Net
Loss shall be allocated to each of the Partners holding the same class of
Partnership Interests in accordance with their respective Percentage Interest of
such class.
B. Allocations to Reflect Issuance of Additional Partnership Interests.
In the event that the Partnership issues additional Partnership Interests to the
General Partner or any Additional Limited Partner pursuant to Section 4.3
hereof, the General Partner shall make such revisions to this Section 6.2 as it
determines are necessary to reflect the issuance of such additional Partnership
Interests.
Section 6.3 Additional Allocation Provisions. Notwithstanding the
foregoing provisions of this Article 6:
A. Regulatory Allocations.
(1) Minimum Gain Chargeback. Except as otherwise provided in
Regulations Section 1.704-2(f), notwithstanding the provisions of Section
6.2 of the Agreement, or any other provision of this Article 6, if there is a
net decrease in Partnership Minimum Gain during any fiscal year, each Partner
shall be specially allocated items of Partnership income and gain for such year
(and, if necessary, subsequent years) in an amount equal to such Partner's share
of the net decrease in Partnership Minimum Gain, as determined under Regulations
Section 1.704-2(g). Allocations pursuant to the previous sentence shall be made
in proportion to the respective amounts required to be allocated to each Partner
pursuant thereto. The items to be allocated shall be determined in accordance
with Regulations Sections 1.704-2(f)(6) and 1.704-2(j)(2) . This Section
6.3.A(l) is intended to qualify as a "minimum gain chargeback" within the
meaning of Regulation Section 1.704-2(f) which shall be controlling in the event
of a conflict between such Regulation and this Section 6.3.A(l).
(2) Partner Minimum Gain Chargeback. Except as otherwise provided
in Regulations Section 1.704-2(i) (4), and notwithstanding the provisions of
Section 6.2 of the Agreement, or any
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other provision of this Article 6 (except Section 6.3.A(l)) if there is a net
decrease in Partner Minimum Gain attributable to a Partner Nonrecourse Debt
during any fiscal year, each Partner who has a share of the Partner Minimum Gain
attributable to such Partner Nonrecourse Debt, determined in accordance with
Regulations Section 1.704-2(i)(5), shall be specially allocated items of
Partnership income and gain for such year (and, if necessary, subsequent years)
in an amount equal to such Partner's share of the net decrease in Partner
Minimum Gain attributable to such Partner Nonrecourse Debt, determined in
accordance with Regulations Section 1.704-2(i)(4). Allocations pursuant to the
previous sentence shall be made in proportion to the respective amounts required
to be allocated to each General Partner and Limited Partner pursuant thereto.
The items to be so allocated shall be determined in accordance with Regulations
Sections 1.704-2(i)(4) and 1.7042(j)(2). This Section 6.3.A(2) is intended to
qualify as a "chargeback of partner nonrecourse debt minimum gain" within the
meaning of Regulation Section 1.704-2(i)(4) which shall be controlling in the
event of a conflict between such Regulation and this Section 6.3.A(2).
(3) Nonrecourse Deductions and Partner Nonrecourse Deductions. Any
Nonrecourse Deductions for any fiscal year shall be specially allocated to the
Partners in accordance with their Percentage Interests. Any Partner Nonrecourse
Deductions for any fiscal year shall be specially allocated to the Partner(s)
who bears the economic risk of loss with respect to the Partner Nonrecourse Debt
to which such Partner Nonrecourse Deductions are attributable, in accordance
with Regulations Sections 1.704-2(b)(4) and 1.704-2(i).
(4) Qualified Income Offset. If any Partner unexpectedly receives
an adjustment, allocation or distribution described in Regulations Section
1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of Partnership income and gain shall
be allocated, in accordance with Regulations Section 1.704-1(b)(2)(ii)(d), to
the Partner in an amount and manner sufficient to eliminate, to the extent
required by such Regulations, the Adjusted Capital Account Deficit of the
Partner as quickly as possible provided that an allocation pursuant to this
Section 6.3.A(4) shall be made if and only to the extent that such Partner would
have an Adjusted Capital Account Deficit after all other allocations provided in
this Article 6 have been tentatively made as if this Section 6.3.A(4) were not
in the Agreement. It is intended that this Section 6.3.A(4) qualify and be
construed as a "qualified income offset" within the meaning of Regulations
1.704-1(b)(2)(ii)(d), which shall be controlling in the event of a conflict
between such Regulations and this Section 6.3.A(4).
(5) Gross Income Allocation. In the event any Partner has a deficit
Capital Account at the end of any fiscal year which is in excess of the sum of
(1) the amount (if any) such Partner is obligated to restore to the Partnership,
and (2) the amount such
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Partner is deemed to be obligated to restore pursuant to Regulations Section
1.704-1(b) (2) (ii) (c) or the penultimate sentences of Regulations Sections
1.704-2(g) (1) and 1.704-2(i) (5), each such Partner shall be specially
allocated items of Partnership income and gain in the amount of such excess as
quickly as possible, provided that an allocation pursuant to this Section
6.3.A(5) shall be made if and only to the extent that such Partner would have a
deficit Capital Account in excess of such sum after all other allocations
provided in this Article 6 have been tentatively made as if this Section
6.3.A(5) and Section 6.3.A(4) were not in the Agreement.
(6) Limitation on Allocation of Net Loss. To the extent any
allocation of Net Loss would cause or increase an Adjusted Capital Account
Deficit as to any Partner, such allocation of Net Loss shall be reallocated
among the other Partners in accordance with their respective Percentage
Interests, subject to the limitations of this Section 6.3.A(6).
(7) Section 754 Adjustment. To the extent an adjustment to the
adjusted tax basis of any Partnership asset pursuant to Code Section 734(b) or
Code Section 743(b) is required, pursuant to Regulations Section 1.704-1(b) (2)
(iv) (m) (2) or Regulations Section 1.704-1(b) (2) (iv) (m) (4), to be taken
into account in determining Capital Accounts as the result of a distribution to
a Partner in complete liquidation of his interest in the Partnership, the amount
of such adjustment to the Capital Accounts shall be treated as an item of gain
(if the adjustment increases the basis of the asset) or loss (if the adjustment
decreases such basis) and such gain or loss shall be specially allocated to the
Partners in accordance with their interests in the Partnership in the event that
Regulations Section 1.704-1(b)(2)(iv)(m)(2) applies, or to the Partners to
whom such distribution was made in the event that Regulations Section
1.704-1(b)(2)(iv)(m)(4) applies.
(8) Curative Allocation. The allocations set forth in Sections
6.3.A(l), (2), (3), (4), (5), (6), and (7) (the "Regulatory Allocations") are
intended to comply with certain regulatory requirements, including the
requirements of Regulations Sections 1.704-1(b) and 1.704-2. Notwithstanding the
provisions of Sections 6.1 and 6.2, the Regulatory Allocations shall be taken
into account in allocating other items of income gain, loss and deduction among
the Partners so that, to the extent possible, the net amount of such allocations
of other items and the Regulatory Allocations to each Partner shall be equal to
the net amount that would have been allocated to each such Partner if the
Regulatory Allocations had not occurred.
B. For purposes of determining a Partner's proportional share of the
"excess nonrecourse liabilities" of the Partnership within the meaning of
Regulations Section 1.752-3(a)(3), each Partner's interest in Partnership
profits shall be such Partner's Percentage Interest.
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Section 6.4 Tax Allocations
A. In General. Except as otherwise provided in this Section 6.4, for
income tax purposes each item of income, gain, loss and deduction (collectively,
"Tax Items") shall be allocated among the Partners in the same manner as its
correlative item of "book" income, gain, loss or deduction is allocated pursuant
to Sections 6.2 and 6.3.
B. Allocations Respecting Section 704 (c) Revaluations. Notwithstanding
Section 6.4.A, Tax Items with respect to Partnership property that is
contributed to the Partnership by a Partner shall be shared among the Partners
for income tax purposes pursuant to Regulations promulgated under Section 704(c)
of the Code, so as to take into account the variation, if any, between the basis
of the property to the Partnership and its initial Gross Asset Value. With
respect to properties contributed to the Partnership, the Partnership shall
account for such variation under any method approved under Section 704 (c) of
the Code and the applicable regulations as chosen by the General Partner. In the
event the Gross Asset Value of any Partnership asset is adjusted pursuant to
subparagraph (b) of the definition of Gross Asset Value (provided in Article 1
of this Agreement), subsequent allocations of Tax Items with respect to such
asset (including but not limited to the Property) shall take account of the
variation, if any, between the adjusted basis of such asset and its Gross Asset
Value in the same manner as under Section 704 (c) of the Code and the applicable
regulations consistent with the requirements of Regulations Section
1.704-1(b)(2)(iv)(g) using the "traditional method" (with the "ceiling rule") as
described in Regulations Section 1.704-3(b)(1)
ARTICLE 7
MANAGEMENT AND OPERATIONS OF BUSINESS
Section 7.1 Management
A. Except as otherwise expressly provided in this Agreement, all
management powers over the business and affairs of the Partnership are
exclusively vested in the General Partner, and no Limited Partner shall have any
right to participate in or exercise control or management power over the
business and affairs of the Partnership. The General Partner may not be removed
by the Limited Partners with or without cause, except with the consent of the
General Partner. In addition to the powers now or hereafter granted a general
partner of a limited partnership under applicable law or which are granted to
the General Partner under any other provision of this Agreement, the General
Partner, subject to the other provisions hereof including Section 7.3, shall
have full power and authority to do all things deemed necessary or desirable by
it to conduct the business of the Partnership, to exercise all powers set forth
in Section 3.2 hereof and to effectuate the
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purposes set forth in Section 3.1 hereof, including, without limitation:
(1) except as specifically provided to the contrary in Sections
4.3.D and 7.3.E, the making of any expenditures, the lending or borrowing of
money (including, without limitation making prepayments on loans and borrowing
money to permit the Partnership to make distributions to its Partners in such
amounts as will permit the Company (so long as the Company has determined to
qualify as a REIT) to avoid the payment of any federal income tax (including,
for this purpose, any excise tax pursuant to Section 4981 of the Code) and to
make distributions to its stockholders sufficient to permit the Company to
maintain REIT status), the assumption or guarantee of, or other contracting
for, indebtedness and other liabilities, the issuance of evidences of
indebtedness (including the securing of same by mortgage, deed of trust or other
lien or encumbrance on the Partnership's assets) and the incurring of any
obligations it deems necessary for the conduct of the activities of the
Partnership;
(2) the making of tax, regulatory and other filings, or rendering
of periodic or other reports to governmental or other agencies having
jurisdiction over the business or assets of, the Partnership;
(3) except as specifically provided to the contrary in Sections
4.3.D and 7.3.E, the acquisition, disposition, mortgage, pledge, encumbrances
hypothecation or exchange of any assets of the Partnership or the merger or
other combination of the Partnership with or into another entity;
(4) except as specifically provided to the contrary in Sections
4.3.D and 7.3.E, the mortgage, pledge, encumbrance or hypothecation of any
assets of the Partnership, and the use of the assets of the Partnership
(including, without limitation, cash on hand) for any purpose consistent with
the terms of this Agreement and on any terms it sees fit, including, without
limitation, the financing of the conduct or the operations of the General
Partner or the Partnership, the lending of funds to other Persons (including,
without limitation, the General Partner (if necessary to permit the financing or
capitalization of a subsidiary of the General Partner or the Partnership) or any
Subsidiaries of the Partnership) and the repayment of obligations of the
Partnership, any of its Subsidiaries and any other Person in which it has an
equity investment;
(5) the negotiation, execution, and performance of any contracts,
leases, conveyances or other instruments that the General Partner considers
useful or necessary to the conduct of the Partnership's operations or the
implementation of the General Partner's powers under this Agreement;
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(6) the distribution of Partnership cash or other Partnership
assets in accordance with this Agreement;
(7) the selection and dismissal of employees of the Partnership
(including, without limitation, employees having titles such as "chairman,"
"chief executive officer," "chief operating officer," "president," "vice
president," "secretary" and "treasurer"), and agents, outside attorneys,
accountants, consultants and contractors of the Partnership, the determination
of their compensation and other terms of employment or hiring, including waivers
of conflicts of interest and the payment of their expenses and compensation out
of the Partnership's assets;
(8) the maintenance of such insurance for the benefit of the
Partnership and the Partners as it deems necessary or appropriate, it being
agreed, however, that the General Partner shall cause the Partnership to
maintain a minimum of $3,000,000 public liability insurance and to maintain fire
and extended coverage property insurance in the full insurable value of the
Property and to maintain earthquake insurance if and to the extent as the
Company generally maintains it for its properties and to maintain any other
insurance or increased limits required by any lender to the Partnership;
(9) except as specifically provided to the contrary in Section
7.3.E, the formation of, or acquisition of an interest in, and the contribution
of property to, any further limited or general partnerships, joint ventures or
other relationships that it deems desirable (including, without limitation, the
acquisition of interests in, and the contributions of property to any Subsidiary
and any other Person in which it has an equity investment from time to time);
provided that, as long as the Company has determined to continue to qualify as a
REIT, the Partnership may not engage in any such formation, acquisition or
contribution that would cause the Company to fail to qualify as a REIT;
(10) except as specifically provided to the contrary in the
Contribution Agreement, the control of any matters affecting the rights and
obligations of the Partnership, including the conduct of litigation and the
incurring of legal expense and the settlement of claims and litigation, and the
indemnification of any Person against liabilities and contingencies to the
extent permitted by law;
(11) the undertaking of any action in connection with the
Partnership's direct or indirect investment in any Person (including, without
limitation, contributing or loaning Partnership funds to, incurring indebtedness
on behalf of, or guarantying the obligations of any such Persons);
(12) subject to the other provisions in this Agreement, the
determination of the fair market value of any Partnership property distributed
in kind using such reasonable method of
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valuation as it may adopt, provided that such methods are otherwise consistent
with requirements of this Agreement;
(13) the management, operation, leasing, landscaping, repair,
alteration, demolition or improvement of any real property or improvements owned
by the Partnership or any Subsidiary of the Partnership or any Person in which
the Partnership has made a direct or indirect equity investment;
(14) holding, managing, investing and reinvesting cash and other
assets of the Partnership;
(15) the collection and receipt of revenues and income of the
Partnership;
(16) the exercise, directly or indirectly through any
attorney-in-fact acting under a general or limited power of attorney, of any
right, including the right to vote, appurtenant to any asset or investment held
by the Partnership;
(17) the exercise of any of the powers of the General Partner
enumerated in this Agreement on behalf of or in connection with any Subsidiary
of the Partnership or any other Person in which the Partnership has a direct or
indirect interest, or jointly with any such Subsidiary or other Person;
(18) the exercise of any of the powers of the General Partner
enumerated in this Agreement on behalf of any Person in which the Partnership
does not have an interest pursuant to contractual or other arrangements with
such Person; and
(19) subject to the requirements of Section 4.3 D and Section
7.3.E, the making, execution and delivery of any and all deeds, leases, notes,
deeds to secure debt, mortgages, deeds of trust, security agreements,
conveyances, contracts, guarantees, Warranties, indemnities, waivers, releases
or legal instruments or agreements in writing necessary or appropriate in the
judgment of the General Partner for the accomplishment of any of the powers of
the General Partner enumerated in this Agreement.
B. Each of the Limited Partners agrees that the General Partner is
authorized to execute, deliver and perform the abovementioned agreements and
transactions on behalf of the Partnership without any further act, approval or
vote of the partners, notwithstanding any other provisions of this Agreement
(except as provided in Sections 4.3.D and 7.3), the Act or any applicable law,
rule or regulation. The execution, delivery or performance by the General
Partner or the Partnership of any agreement authorized or permitted under this
Agreement shall not constitute a breach by the General Partner of any duty that
the General Partner may owe the Partnership or the Limited Partners or any other
Persons under this Agreement or of any duty stated or implied by law or equity.
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C. At all times from and after the date hereof, the General Partner may
cause the Partnership to obtain and maintain (i) casualty, liability and other
insurance on the properties of the Partnership and (ii) liability insurance for
the Indemnities hereunder.
D. At all times from and after the date hereof, the General Partner may
cause the Partnership to establish and maintain working capital reserves in such
amounts as the General Partner, in it sole and absolute discretion, deems
appropriate and reasonable from time to time.
E. Except as specifically provided to the contrary in Sections 3.2,
4.3.D and 7.3.E, in exercising its authority under this Agreement, the General
Partner may, but shall be under no obligation to, take into account the tax
consequences to any Partner (including the General Partner) of any action taken
by it. Except for the General Partner's or the Partnership's failure to comply
with Sections 3.2, 4.3.D and 7.3.E, the General Partner and the Partnership
shall not have liability to a Partner under any circumstances as a result of an
income tax liability incurred by such Limited Partner as a result of an action
(or inaction) by the General Partner pursuant to its authority under this
Agreement.
Section 7.2 Certificate of Limited Partnership. To the extent that such
action is determined by the General Partner to be reasonable and necessary or
appropriate, the General Partner shall file amendments to and restatements of
the Certificate and do all the things to maintain the Partnership as a limited
partnership (or a partnership in which the limited partners have limited
liability) under the laws of the State of California and each other state, the
District of Columbia or other jurisdiction, in which the Partnership may elect
to do business or own property. Subject to the terms of Section 8.5.A(4) hereof,
the General Partner shall not be required, before or after filing, to deliver or
mail a copy of the Certificate or any amendment thereto to any Limited Partner.
The General Partner shall use all reasonable efforts to cause to be filed such
other certificates or documents as may be reasonable and necessary or
appropriate for the formation, continuation, qualification and operation of a
limited partnership (or a partnership in which the limited partners have limited
liability) in the State of California, any other state, or the District of
Columbia or other jurisdiction, in which the Partnership may elect to do
business or own property.
Section 7.3 Restrictions on General Partner's Authority
A. The General Partner may not take any action in contravention of an
express prohibition or limitation of this Agreement, including, without
limitation:
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(1) take any action that would make it impossible to carry on the
ordinary business of the Partnership, except as otherwise provided in this
Agreement;
(2) possess Partnership property, or assign any rights in specific
Partnership property, for other than a Partnership purpose except as otherwise
provided in this Agreement;
(3) perform any act that would subject a Limited Partner to
liability as a general partner in any jurisdiction or any other liability except
as provided herein or under the Act; or
(4) enter into any contract, mortgage, loan or other agreement that
expressly prohibits or restricts the ability of a Limited Partner to exercise
its rights to an Exchange in full, except with the written consent of such
Limited Partner.
B. The General Partner shall not, without the prior Consent of the
Partners, undertake, on behalf of the Partnership, any of the following actions:
(1) except as provided in Section 7.3.C, amend, modify or terminate
this Agreement other than to reflect the admission, substitution, termination or
withdrawal of partners pursuant to Article 12 hereof, provided that any
amendment of Sections 4.3.D, 6.4.B and 7.3.E shall only be made in compliance
with Section 7.3.E;
(2) make a general assignment for the benefit of creditors or
appoint or acquiesce in the appointment of a custodian, receiver or trustee for
all or any part of the assets of the Partnership;
(3) institute any proceeding for bankruptcy on behalf of the
Partnership; or
(4) confess a judgment against the Partnership.
C. Notwithstanding Section 7.3.B and 7.3.E.(3), the General Partner
shall have the exclusive power to amend this Agreement as may be required to
facilitate or implement any of the following purposes:
(1) to reflect a change that is of an inconsequential nature and
does not adversely, affect the Limited Partners in any material respect, or to
cure any ambiguity, correct or supplement any provision in this Agreement not
inconsistent with law or with other provisions, or make other changes with
respect to matters arising under this Agreement that will not be inconsistent
with law or with the provisions of this Agreement;
(2) to satisfy any requirements, conditions, or guidelines
contained in any order, directive, opinion, ruling or
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regulation of a federal or state agency or contained in federal or state law;
and
(3) to reflect such changes as are reasonably necessary for the
Company to maintain status as a REIT, including changes which may be
necessitated due to a change in applicable law (or an authoritative
interpretation thereof) or a ruling of the IRS.
The General Partner will provide notice to the Limited Partners before any
action under this Section 7.3.C is taken.
D. Notwithstanding Section 7.3.B and 7.3.C hereof, this Agreement shall
not be amended with respect to any Partner adversely affected, and no action may
be taken by the General Partner, without the Consent of such Partner adversely
affected if such amendment or action would (i) convert a Limited Partner's
interest in the Partnership into a general partner's interest (except as the
result of the General Partner acquiring such interest) , (ii) modify the limited
liability of a Limited Partner, (iii) alter rights of the Partner to receive
distributions pursuant to Article 5 or Section 13.2.A(4), or the allocations
specified in Article 6 (except as permitted pursuant to Section 4.3 and Section
7.3.C(3) hereof), (iv) materially alter or modify the rights to an Exchange as
set forth in Section 8.6, and related definitions hereof or (v) amend this
Section 7.3.D unless the General Partner is acting pursuant to its powers under
Section 7.3.E(4) in which event no Consent of any affected Partner shall be
required. Further, no amendment may alter the restrictions on the General
Partner's authority set forth elsewhere in this Section 7.3 without the Consent
specified in such section.
E. So long as either (1) A.S. Xxxxxxxx and his spouse or (2) Xx X.
Xxxxxxxx and his spouse are living, the General Partner shall not cause or
suffer the Partnership to take any of the following actions without the prior
Consent of the Xxxxxxxx Trust (if both A.S. Xxxxxxxx and his spouse are living)
and the Xxxxxxxx Trust (if both Xx X. Xxxxxxxx and his spouse are living):
(1) for the period of two (2) years following the Effective Date,
(a) dissolve the Partnership or (b) merge, consolidate, reorganize or otherwise
combine the Partnership in a transaction to which the Partnership is a party; or
(2) (a) after the two (2) year period following the Effective Date,
and until the end of the ten (10) year period following the Effective Date,
dissolve the Partnership, or merge, consolidate, reorganize or otherwise combine
the Partnership in a transaction to which the Partnership is a party, unless
such dissolution or other transaction (i) is structured in a manner that does
not trigger any material adverse income tax consequences to A.S. Xxxxxxxx or Xx
X. Xxxxxxxx and (ii) provides for the continuation of the substance of the
provisions set forth in Sections 4.3.D and 6.4.B (regarding allocations under
Code Section
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704 (c) ) and 7 .3. E (2) ; (b) for a period of ten (10) years following the
Effective Date, sell, transfer or dispose of the Property other than in a
tax-deferred exchange qualifying under Section 1031 of the Code or equivalent,
successor, replacement or additional Code Sections in which no gain or loss is
recognized for income tax purposes unless the Partnership has been merged into
the General Partner in accordance with clause (a) above and the Company or the
General Partner sells substantially all of its assets in a single or series of
related taxable transactions. The foregoing ten (10) year limitation shall
terminate upon the death of both (a) A.S. Xxxxxxxx or his spouse and (b) Xx X.
Xxxxxxxx or his spouse. However, notwithstanding the ten (10) year period set
forth in clauses (a) and (b) of the first sentence of this Section 7.3.E.(2),
while both Mr. and Xxx. Xxxxxxxx or both Mr. and Xxx. Xxxxxxxx are living after
the ten (10) year period has expired the General Partner agrees to cooperate
with both families to attempt to structure any proposed transaction so that (i)
it would not trigger significant federal income taxes to either of them or their
trusts as Limited Partners, and (ii) if the proposed transaction involves a
merger, consolidation, reorganization or other combination in which the
Partnership is not the surviving entity, the transaction provides for the
continuation of the substance of the provisions set forth in Sections 4. 3. D,
6. 4. B and 7. 3. E. (2) ; provided, however, if after such ten (10) year period
has expired (and for so long as both Mr. and Xxx. Xxxxxxxx or both Mr. and Xxx.
Xxxxxxxx are living), (x) the General Partner and such persons reach agreement
on a structure which satisfies one but not both of the objectives set forth in
clauses (i) and (ii) above, then the General Partner may pursue its proposed
transaction but only in accordance with such agreement and without any other
obligations under this Section 7.3.E.(2) with respect to the tax treatment of
the Limited Partners, and (y) if the General Partner and such persons do not
reach agreement on a structure which satisfies either of the objectives set
forth in clauses (i) and (ii) above, then the General Partner may pursue its
proposed transaction without any obligations under this Section 7.3.E.(2) with
respect to the tax treatment of the Limited Partners.
(3) Modify or amend Sections 4.3.D, 6.4.B and this Section 7.3.E.
(4) Notwithstanding the foregoing limitations in Section
7.3.E.(l) or (2) or those contained in Section 8.6.F such provisions shall in no
way limit the General Partner's ability to (a) engage in a "Termination
Transaction" as defined in the partnership agreement of the General Partner
(including the transactions described under Section 11.2.C of such agreement)
(b) engage in a transaction designed to sell, transfer, merge, consolidate,
reorganize or roll-up all or substantially all of the assets of the General
Partner with another entity for the benefit of the shareholders of the Company
or (c) act or refrain from acting in a way or manner so as to avoid a breach by
the General Partner, the Company, or its board of directors of any fiduciary
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duty to the Company or its shareholders, and none of the General Partner, the
Partnership or any other party shall have any liability under this Agreement for
engaging in such a transaction, action or in action.
Section 7.4 Reimbursement of the General Partner
A. Except as provided in this Section 7.4 and elsewhere in this
Agreement (including the provisions of Articles 5 and 6 regarding distributions,
payments and allocations to which it may be entitled), the General Partner shall
not hereafter be compensated for its services as general partner of the
Partnership.
B. The General Partner shall be reimbursed on a monthly basis, or such
other basis as the General Partner may determine in its sole and absolute
discretion, for all expenses it incurs relating to the ownership of interests in
and operation of, or for the benefit of, the Partnership. Such reimbursements
shall be in addition to any reimbursement to the General Partner as a result of
indemnification pursuant to Section 7.7 hereof.
C. If and to the extent any reimbursements to the General Partner
pursuant to this Section 7.4 constitute gross income of the General Partner (as
opposed to the repayment of advances made by the General Partner on behalf of
the Partnership), such amounts shall constitute guaranteed payments within the
meaning of Section 707(c) of the Code, shall be treated consistently therewith
by the Partnership and all Partners, and shall not be treated as distributions
for purposes of computing the Partners, Capital Accounts.
Section 7.5 Outside Activities of the General Partner
The General Partner and/or its Affiliates, may engage in or possess an
interest in other business ventures of every nature and description,
independently or with others, whether such ventures are competitive with the
Partnership or otherwise; and except as expressly provided in an independent
written and duly executed instrument, neither the Partnership nor the Partners
shall have any right by virtue of this Agreement in or to such independent
ventures or to the income or profits derived therefrom.
Section 7.6 Contracts with Affiliates
A. The General Partner without the approval of the Limited Partners,
may propose and adopt on behalf of the Partnership employee benefit plans funded
by the Partnership for the benefit of employees of the Partnership in respect of
services performed, directly or indirectly, for the benefit of the Partnership.
B. The General Partner is expressly authorized to enter into, in the
name and on behalf of the Partnership, a right of first opportunity arrangement
and other conflict avoidance
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agreements with various Affiliates of the Partnership and the General Partner,
on such terms as the General Partner, in its sole and absolute discretion,
believes are advisable.
Section 7.7 Indemnification
A. The Partnership shall indemnify an Indemnitee from and against any
and all losses, claims, damages, liabilities, joint or several, expenses
(including legal fees and expenses), judgments, fines, settlements, and other
amounts arising from any and all claims, demands, actions, suits or proceedings,
civil, criminal, administrative or investigative, that relate to the operations
of the Partnership as set forth in this Agreement in which any Indemnitee may be
involved, or is threatened to be involved, as a party or otherwise, unless it is
established that: (i) the act or omission of the Indemnitee was material to the
matter giving rise to the proceeding and either was committed in bad faith or
was the result of dishonesty or gross negligence; (ii) the Indemnitee actually
received an improper personal benefit in money, property or services; or (iii)
in the case of any criminal proceeding, the Indemnitee had reasonable cause to
believe that the act or omission was unlawful. Without limitation, except as to
the guaranties by the Guarantors now or hereafter in effect as described in
Section 4.3.D of this Agreement for which the Partnership shall not be obligated
to indemnify the Guarantors, the foregoing indemnity shall extend to any
liability of any Indemnitee, pursuant to a loan guaranty or otherwise, for any
indebtedness of the Partnership or any Subsidiary of the Partnership (including,
without limitation, any indebtedness which the Partnership or any Subsidiary of
the Partnership has assumed or taken subject to) , and the General Partner is
hereby authorized and empowered, on behalf of the Partnership, to enter into one
or more indemnity agreements consistent with the provisions of this Section 7.7
in favor of any Indemnitee having or potentially having liability for any such
indebtedness. The termination of any proceeding by judgment, order or settlement
does not create a presumption that the Indemnitee did not meet the requisite
standard of conduct set forth in this Section 7.7.A. The termination of any
proceeding by conviction or upon a plea of nolo contendere or its equivalent, or
any entry of an order of probation prior to judgment, creates a rebuttable
presumption that the Indemnitee acted in a manner contrary to that specified in
this Section 7.7.A. Any indemnification pursuant to this Section 7.7 shall be
made only out of the assets of the Partnership.
B. Reasonable expenses incurred by an Indemnitee who is a party to a
proceeding may be paid or reimbursed by the Partnership in advance of the final
disposition of the proceeding upon receipt by the Partnership of (i) a written
affirmation by the Indemnitee of the Indemnitee's good faith belief that the
standard of conduct necessary for indemnification by the Partnership as
authorized in this Section 7.7.A has been met, and (ii) a written undertaking by
or on behalf of the Indemnitee to repay the amount if it shall
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ultimately be determined that the standard of conduct has not been met.
C . The indemnification provided by this Section 7.7 shall be in
addition to any other rights to which an Indemnitee or any other Person may be
entitled under any agreement, pursuant to any vote of the Partners, as a matter
of law or otherwise, and shall continue as to an Indemnitee who has ceased to
serve in such capacity.
D. The Partnership may purchase and maintain insurance on behalf of the
Indemnities and such other Persons as the General Partner shall determine,
against any liability that may be asserted against or expenses that may be
incurred by such Person in connection with the Partnership's activities,
regardless of whether the Partnership would have the power to indemnify such
Person against such liability under the provisions of this Agreement.
E. For purposes of this Section 7.7, the Partnership shall be deemed to
have requested an Indemnitee to serve as fiduciary of an employee benefit plan
whenever the performance by it of its duties to the Partnership also imposes
duties on, or otherwise involves services by, it to the plan or participants or
beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect
to an employee benefit plan pursuant to applicable law shall constitute fines
within the meaning of Section 7.7; and actions taken or omitted by the
Indemnitee with respect to an employee benefit plan in the performance of its
duties for a purpose reasonably believed by it to be in the interest of the
participants and beneficiaries of the plan shall be deemed to be for a purpose
which is not opposed to the best interests of the Partnership.
F. In no event may an Indemnitee subject the Limited Partners to
personal liability by reason of the indemnification provisions set forth in this
Agreement.
G. An Indemnitee shall not be denied indemnification in whole or in
part under this Section 7.7 because the Indemnitee had an interest in the
transaction with respect to which the indemnification applies if the transaction
was otherwise permitted by the terms of this Agreement.
H. The provisions of this Section 7.7 are for the benefit of the
Indemnitees, their heirs, successors, assigns and administrators and shall not
be deemed to create any rights for the benefit of any other Persons. Any
amendment, modification or repeal of this Section 7.7 or any provision hereof
shall be prospective only and shall not in any way affect the limitations on the
Partnership's liability to any Indemnitee under this Section 7.7 as in effect
immediately prior to such amendment, modification or repeal with respect to
claims arising from or relating to matters occurring, in whole or in part, prior
to such amendment, modification or repeal, regardless of when such claims may
arise or be asserted.
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I. If and to the extent any reimbursements to the General Partner
pursuant to this Section 7.7 constitute gross income of the General Partner (as
opposed to the repayment of advances made by the General Partner on behalf of
the Partnership) such amounts shall constitute guaranteed payments within the
meaning of Section 707(c) of the Code, shall be treated consistently therewith
by the Partnership and all Partners, and shall not be treated as distributions
for purposes of computing the Partners' Capital Accounts.
J. Any indemnification hereunder is subject to, and limited by, the
provisions of the Act.
Section 7.8 Liability of the General Partner
A. Notwithstanding anything to the contrary set forth in this
Agreement, the General Partner shall not be liable or accountable in damages or
otherwise to the Partnership, any Partners or any Assignees for losses
sustained, liabilities incurred or benefits not derived as a result of errors in
judgment or mistakes of fact or law or any act or omission if the General
Partner acted in good faith.
B. The Limited Partners expressly acknowledge that the General Partner
is acting for the benefit of the Partnership, the Limited Partners and the
General Partner's partners collectively, that except as otherwise specifically
provided in Sections 4.3.D and 7.3.E, the General Partner is under no obligation
to give priority to the separate interests of the Limited Partners or the
General Partner's partners (including, without limitation, the tax consequences
to Limited Partners or Assignees or to stockholders) in deciding whether to
cause the Partnership to take (or decline to take) any actions and that except
as specifically provided in Sections 4.3.D and 7.3.E, the General Partner shall
not be liable to the Partnership or to any Partner for monetary damages for
losses sustained, liabilities incurred, or benefits not derived by Limited
Partners in connection with such decisions, provided that the General Partner
has acted in good faith.
C. Subject to its obligations and duties as General Partner set forth
in Sections 4.3.D and 7.3.E, the General Partner may exercise any of the powers
granted to it by this Agreement and perform any of the duties imposed upon it
hereunder either directly or by or through its agents. The General Partner shall
not be responsible for any misconduct or negligence on the part of any such
agent appointed by it in good faith.
D. Any amendment, modification or repeal of this Section 7.8 or any
provision hereof shall be prospective only and shall not in any way affect the
limitations on the General Partner's liability to the Partnership and the
Limited Partners under this Section 7.8 as in effect immediately prior to such
amendment, modification or repeal with respect to claims arising from or
relating to matters occurring, in whole or in part, prior to such amendment,
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modification or repeal, regardless of when such claims may arise or be asserted.
Section 7.9 Other Matters Concerning the General Partner
A. The General Partner may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, bond, debenture, or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties.
B. The General Partner may consult with legal counsel, accountants,
appraisers, management consultants, investment bankers and other consultants and
advisers selected by it, and any act reasonably taken or reasonably omitted to
be taken in reliance upon the opinion of such Persons as to matters which such
General Partner reasonably believes to be within such Person's professional or
expert competence shall be conclusively presumed to have been done or omitted in
good faith and in accordance with such opinion.
C. The General Partner shall have the right, in respect of any of its
powers or obligations hereunder, to act through any of its duly authorized
officers and a duly appointed attorney or attorneys-in-fact. Each such attorney
shall, to the extent provided by the General Partner in the power of attorney,
have full power and authority to do and perform all and every act and duty which
is permitted or required to be done by the General Partner hereunder.
D. Notwithstanding any other provisions of this Agreement or any
nonmandatory provision of the Act, any action of the Company as general partner
of the General Partner on behalf of the Partnership, or any decision of the
Company as general partner of the General Partner to refrain from acting on
behalf of the Partnership, undertaken in the good faith belief that such action
or omission is necessary or advisable in order (i) to protect the ability of the
Company to continue to qualify as a REIT or (ii) to avoid the Company incurring
any taxes under Section 857 or Section 4981 of the Code, is expressly authorized
under this Agreement and is deemed approved by all of the Limited Partners.
Section 7.10 Title to Partnership Assets. Title to Partnership assets,
whether real, personal or mixed and whether tangible or intangible, shall be
deemed to be owned by the Partnership as an entity, and no Partners,
individually or collectively, shall have any ownership interest in such
Partnership assets or any portion thereof. Title to any or all of the
Partnership assets may be held in the name of the Partnership, the General
Partner or one or more nominees, as the General Partner may determine, including
Affiliates of the General Partner. The General Partner hereby declares and
warrants that any Partnership assets for which legal title is held in the name
of the General Partner or any nominee or
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Affiliate of the General Partner shall be held by the General Partner for the
use and benefit of the Partnership in accordance with the provisions of this
Agreement; provided, however, that the General Partner shall use its best
efforts to cause beneficial and record title to such assets to be vested in the
Partnership as soon as reasonably practicable. All Partnership assets shall be
recorded as the property of the Partnership in its books and records,
irrespective of the name in which legal title to such Partnership assets is
held.
Section 7.11 Reliance by Third Parties. Notwithstanding anything to the
contrary in this Agreement, any Person dealing with the Partnership shall be
entitled to assume that the General Partner has full power and authority to
encumber, sell or otherwise use in any manner any and all assets of the
Partnership and to enter into any contracts on behalf of the Partnership, and
such Person shall be entitled to deal with the General Partner as if it were the
Partnership's sole party in interest, both legally and beneficially. Each
Limited Partner hereby waives any and all defenses or other remedies which may
be available against such Person to contest, negate or disaffirm any action of
the General Partner in connection with any such dealing. In no event shall any
Person dealing with the General Partner or its representatives be obligated to
ascertain that the terms of this Agreement have been complied with or to inquire
into the necessity or expedience of any act or action of the General Partner or
its representatives. Each and every certificate, document or other instrument
executed on behalf of the Partnership by the General Partner or its
representatives shall be conclusive evidence in favor of any and every Person
relying thereon or claiming thereunder that (i) at the time of the execution and
delivery of such certificate, document or instrument, this Agreement was in full
force and effect, (ii) the Person executing and delivering such certificate,
document or instrument was duly authorized and empowered to do so for and on
behalf of the Partnership and (iii) such certificate, document or instrument was
duly executed and delivered in accordance with the terms and provisions of this
Agreement and is binding upon the Partnership.
ARTICLE 8
RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS
Section 8.1 Limitation of Liability. The Limited Partners shall have no
liability under this Agreement except as expressly provided in this Agreement or
under the Act.
Section 8.2 Management of Business. No Limited Partner or Assignee
(other than the General Partner, any of its Affiliates or any officer, director,
employee, partner, agent or trustee of the General Partner, the Partnership or
any of their Affiliates, in their capacity as such) shall take part in the
operations, management or control (within the meaning of the Act) of the
Partnership's business, transact any business in the Partnership's name or
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have the power to sign documents for or otherwise bind the Partnership. The
transaction of any such business by the General Partner, any of its Affiliates
or any officer, director, employee, partner, agent or trustee of the General
Partner, the Partnership or any of their Affiliates, in their capacity as such,
shall not affect, impair or eliminate the limitations on the liability of the
Limited Partners or Assignees under this Agreement.
Section 8.3 Outside Activities of Limited Partners. Any Limited Partner
and any officer, director, employee, agent, trustee, Affiliate or stockholder of
any Limited Partner shall be entitled to and may have business interests and
engage in business activities in addition to those relating to the Partnership,
including business interests and activities in direct competition with the
Partnership or that are enhanced by the activities of the Partnership. Neither
the Partnership nor any Partners shall have any rights by virtue of this
Agreement in any business ventures of any Limited Partner or Assignee. None of
the Limited Partners nor any other Person shall have any rights by virtue of
this Agreement or the partnership relationship established hereby in any
business ventures of any other Person, other than the Limited Partners
benefitting from the business conducted by the General Partner, and such Person
shall have no obligation pursuant to this Agreement to offer any interest in any
such business ventures to the Partnership, any Limited Partner or any such other
Person, even if such opportunity is of a character which, if presented to the
Partnership, any Limited Partner or such other Person, could be taken by such
Person.
Section 8.4 Return of Capital. Except pursuant to the rights of
Exchange set forth in Section 8.6, no Limited Partner shall be entitled to the
withdrawal or return of his or her Capital Contribution, except to the extent of
distributions made pursuant to this Agreement or upon termination of the
Partnership as provided herein. No Limited Partner or Assignee shall have
priority over any other Limited Partner or Assignee either as to the return of
Capital Contributions, or otherwise expressly provided in this Agreement, as to
profits, losses, distributions or credits.
Section 8.5 Rights of Limited Partners Relating to the Partnership
A. In addition to other rights provided by this Agreement or by the
Act, and except as limited by Section 8.5.B hereof, each Limited Partner shall
have the right, for a purpose reasonably related to such Limited Partner's
interest as a limited partner in the Partnership, upon written demand with a
statement of the purpose of such demand and at the Partnership's expense:
(1) to obtain a copy of the most recent annual and quarterly
reports filed with the Securities and Exchange Commission by the Company
pursuant to the Securities Exchange Act, and each communication sent to the
stockholders of the Company;
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(2) to obtain a copy of the Partnership's federal, state and local
income tax returns for each Partnership Year;
(3) to obtain a current list of the name and last known business,
residence or mailing address of each Partner;
(4) to obtain a copy of this Agreement and the Certificate and all
amendments thereto, together with executed copies of all powers of attorney
pursuant to which this Agreement, the Certificate and all amendments thereto
have been executed; and
(5) to obtain true and full information regarding the amount of
cash and a description and statement of any other property or services
contributed by each Partner and which each Partner has agreed to contribute in
the future, and the date on which each became a Partner.
B. Notwithstanding any other provision of this Section 8.5, the General
Partner may keep confidential from the Limited Partners, for such period of time
as the General Partner determines in its sole and absolute discretion to be
reasonable, any information that (i) the General Partner believes to be in the
nature of trade secrets or other information the disclosure of which the General
Partner in good faith believes is not in the best interests of the Partnership
or (ii) the Partnership or the General Partner is required by law or by
agreements with unaffiliated third parties to keep confidential.
Section 8.6 Exchange Rights
A. On or after the date one (1) year after the Effective Date, each
Limited Partner (acting individually) shall have the right (subject to the terms
and conditions set forth herein) to require the General Partner to acquire all
(but not a portion) of the Partnership Interests held by such Limited Partner
(such Partnership Interests being hereafter referred to as "Tendered Units") in
exchange for cash in the amount set forth in Section 8.6.C. (an "Exchange") .
Notwithstanding the foregoing, any Limited Partner may purchase all or a portion
of the Partnership Interests of another Limited Partner (the "Purchased Units"),
in which case such purchasing Limited Partner shall have (i) the right to
require the General Partner to acquire all (but not a portion) of the Purchased
Units in an Exchange, and also (ii) the right to require the General Partner to
acquire all (but not a portion) of the Partnership Units held by such Limited
Partner other than the Purchased Units in an Exchange, which rights need not be
exercised concurrently. Unless otherwise expressly provided in this Agreement or
in a separate agreement entered into between the General Partner and the Limited
Partners, all Limited Partnership Interests shall be entitled to a right of
Exchange hereunder. Any Exchange shall be exercised pursuant to a Notice of
Exchange delivered to the General Partner by the Limited Partner who is
exercising the right (the "Tendering Partner").
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B. Notwithstanding Section 8.6.A above, if a Limited Partner has
delivered to the General Partner a Notice of Exchange then the General Partner
may, in its sole and absolute discretion, (subject to the limitations on
ownership and transfer of the General Partner) acquire the Tendered Units from
the Tendering Partner in exchange for a number of OP Units (as of the Specified
Exchange Date) as set forth in Section 8.6.C and the Tendering Partner shall
transfer the Tendered Units to the General Partner in exchange for such OP
Units. In such event, the Tendering Partners shall have no right to require the
General Partner to acquire such Tendered Units in exchange for cash. The General
Partner shall promptly give such Tendering Partner written notice of its
election , and the Tendering Partner may elect to withdraw its request for an
Exchange at any time prior to the acceptance of the cash or OP Units by such
Tendering Partner.
C. Upon receipt of the Notice of Exchange, the General Partner shall
cause an Appraisal of the Property as of the date of the Notice of Exchange to
determine its then fair market value and shall engage the Partnership's
accountants to determine the amount of the liquidating distribution (the "Cash
Amount") that would be made to the Tendering Partner pursuant to Section 5.3 if
the Property had been sold in an arm's length transaction for its fair market
value as determined by the Appraisal, the liabilities of the Partnership had
been paid, the Partnership closed its books on the date of the Notice of
Exchange with respect to other items of income and expense, and the Partnership
dissolved. The Tendered Units shall be acquired as of the Specified Exchange
Date for the Cash Amount or, in the sole and absolute discretion of the General
Partner, exchanged for the number of OP Units of the General Partner equal to
the Cash Amount divided by the Fair Market Value of a share of capital stock of
the Company. Such Exchange shall be consummated no later than ten (10) business
days following the determination of the Cash Amount.
D. The General Partner agrees to cause a Tendering Partner who is to
receive OP Units to be admitted as an Additional Limited Partner of the General
Partner and the Tendering Partner shall execute an amendment to the agreement of
limited partnership of the General Partner reflecting its admission and
percentage interest in the General Partner and its agreement to abide by the
partnership agreement of the General Partner. Notwithstanding any delay in such
delivery, the Tendering Partner shall be deemed the owner of such OP Units for
all purposes, including without limitation, the right to consent, and receive
distributions, as of the Specified Exchange Date.
E. Notwithstanding anything herein to the contrary, with respect to any
Exchange pursuant to this Section 8.6:
(1) All Partnership Interests acquired by the General Partner
pursuant thereto shall automatically, and without further
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action required, be converted into and deemed to be General Partner Interests.
(2) Except as otherwise specifically provided, without the consent
of the General Partner, each Limited Partner may not effect an Exchange for less
than all of the Partnership Interests held by such Limited Partner.
(3) Each Tendering Partner shall continue to own all Partnership
Interests subject to any Exchange for OP Units, and be treated as a Limited
Partner with respect to such Partnership Interests for all purposes of this
Agreement, until the Specified Exchange Date. Until a Specified Exchange Date,
the Tendering Partner shall have no rights as a limited partner of the General
Partner with respect to such Tendering Partner's Partnership Interests.
F. Notwithstanding anything in this Section 8.6 to the contrary, but
subject to the limitations set forth in the following sentence, the General
Partner is hereby granted the right and option to acquire the Partnership
Interest of each of the Limited Partners in exchange for cash or, at the General
Partner's election, OP Units of the General Partner in accordance with the
valuation and other procedures set forth in Sections 8.6.C and 8.6.D. The
foregoing option shall not be exercisable with respect to the Partnership
Interest owned by the (i) Xxxxxxxx Trust prior to the death of either Xx X.
Xxxxxxxx or his spouse or (ii) the Xxxxxxxx Trust prior to the death of either
A.S. Xxxxxxxx or his spouse.
ARTICLE 9
BOOKS, RECORDS, ACCOUNTING AND REPORTS
Section 9.1 Records and Accounting. The General Partner shall keep or
cause to be kept at the principal office of the Partnership appropriate books
and records with respect to the Partnership's business, including without
limitation, all books and records necessary to provide to the Limited Partners
any information, lists and copies of documents required to be provided pursuant
to Section 9.3 hereof. Any records maintained by or on behalf of the Partnership
in the regular course of its business may be kept on, or be in the form of,
punch cards, magnetic tape, photographs, micrographics or any other information
storage device, provided that the records so maintained are convertible into
clearly legible written form within a reasonable period of time; the books of
the Partnership shall be maintained, for financial and tax reporting purposes,
on an accrual basis in accordance with generally accepted accounting principles.
Section 9.2 Fiscal Year. The fiscal year of the Partnership shall be
the calendar year.
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Section 9.3 Reports.
A. As soon as practicable, but in no event later than 105 days after
the close of each Partnership Year, or such earlier date as they are filed with
the Securities and Exchange Commission, the General Partner shall cause to be
mailed to each Limited Partner as of the close of the Partnership Year, an
annual report containing financial statements of the Partnership, or of the
Company if such statements are prepared solely on a consolidated basis with the
Company, for such Partnership Year, presented in accordance with generally
accepted accounting principles, such statements to be audited by a nationally
recognized firm of independent public accountants selected by the General
Partner.
B. As soon as practicable, but in no event later than 45 days after the
close of each calendar quarter (except the last calendar quarter of each year),
or such earlier date as they are filed with the Securities and Exchange
Commission, the General Partner shall cause to be mailed to each Limited Partner
as of the last day of the calendar quarter, a report containing unaudited
financial statements of the Partnership, or of the Company, if such statements
are prepared solely on a consolidated basis with the applicable law or
regulation, or as the General Partner determines to be appropriate.
ARTICLE 10
TAX MATTERS
Section 10.1 Preparation of Tax Returns. The General Partner shall
arrange for the preparation and timely filing of all returns of Partnership
income, gains, deductions, losses and other items required of the Partnership
for federal and state income tax purposes and shall use all reasonable efforts
to furnish, within 90 days of the close of each taxable year, the tax
information reasonably required by Limited Partners for federal and state income
tax reporting purposes.
Section 10.2 Tax Elections. Except as otherwise provided herein, the
General Partner shall, in its sole and absolute discretion, determine whether to
make any available election pursuant to the Code, including the election under
Section 754 of the Code. The General Partner shall have the right to seek to
revoke any such election (including without limitation, any election under
Section 754 of the Code) upon the General Partner's determination in its sole
and absolute discretion that such revocation is the best interests of the
Partners. The Partners acknowledge, however, that prior to the Effective Date
the Partnership made an election under Section 754 of the Code.
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Section 10.3 Tax Matters Partner
A . The General Partner shall be the "tax matters partner" of the
Partnership for federal income tax purposes. Pursuant to Section 6223 (c) of the
Code, upon receipt of notice from the IRS of the beginning of an administrative
proceeding with respect to the Partnership, the tax matters partner shall
furnish the IRS with the name, address and profit interest of each of the
Limited Partners and Assignees; provided, however, that such information is
provided to the Partnership by the Limited Partners and Assignees.
B. The tax matters partner is authorized, but not required:
(1) to enter into any settlement with the IRS with respect to any
administrative or judicial proceedings for the adjustment of Partnership items
required to be taken into account by a Partner for income tax purposes (such
administrative proceedings being referred to as a "tax audit" and such judicial
proceedings being referred to as "judicial review") , and in the settlement
agreement the tax matters partner may expressly state that such agreement shall
bind all Partners, except that such settlement agreement shall not bind any
Partner (i) who (within the time prescribed pursuant to the Code and
Regulations) files a statement with the IRS providing that the tax matters
partner shall not have the authority to enter into a settlement agreement on
behalf of such Partner or (ii) who is a "notice partner" (as defined in Section
6231 of the Code) or a member of a "notice group" (as defined in Section
6223(b)(2) of the Code);
(2) in the event that a notice of a final administrative adjustment
at the Partnership level of any item required to be taken into account by a
Partner for tax purposes (a "final adjustment") is mailed to the tax matters
partner, to seek judicial review of such final adjustment, including the filing
of a petition for readjustment with the Tax Court or the United States Claims
Court, or the filing of a complaint for refund with the District Court of the
United States for the district in which the Partnership's principal place of
business is located;
(3) to intervene in any action brought by any other Partner for
judicial review of a final adjustment;
(4) to file a request for an administrative adjustment with the IRS
at any time and, if any part of such request is not allowed by the IRS, to file
an appropriate pleading (petition or complaint) for judicial review with respect
to such request;
(5) to enter into an agreement with the IRS to extend the period
for assessing any tax which is attributable to any item required to be taken
into account by a Partner for tax purposes, or an item affected by such item;
and
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(6) to take any other action on behalf of the Partners of the
Partnership in connection with any tax audit or judicial review proceeding to
the extent permitted by applicable law or regulations.
The taking of any action and the incurring of any expense by the tax
matters partner in connection with any such proceeding, except to the extent
required by law, is a matter in the sole and absolute discretion of the tax
matters partner and the provisions relating to indemnification of the General
Partner set forth in Section 7.7 of this Agreement shall be fully applicable to
the tax matters partner in its capacity as such.
Notwithstanding the foregoing, for tax years ending on or before
December 31, 1997 (except as to issues relating to the tax status of the
Partnership), the General Partner agrees to consult with A.S. Xxxxxxxx and Xx X.
Xxxxxxxx with respect to tax issues raised by the IRS and to reasonably consider
and to reasonably take into account the views expressed by such persons.
C. The tax matters partner shall receive no compensation for its
services. All third party costs and expenses incurred by the tax matters partner
in performing his duties as such (including legal and accounting fees) shall be
borne by the Partnership. Nothing herein shall be construed to restrict the
Partnership from engaging an accounting firm to assist the tax matters partner
in discharging his duties hereunder, so long as the compensation paid by the
Partnership for such services is reasonable.
D. While Arden Realty Limited Partnership is the tax matters
partner, it shall not agree to any settlement of any issues regarding the
Limited Partners' tax basis or deemed distributions to any Limited Partner under
Section 752 (b) without the consent (which may not be unreasonably conditioned
or withheld) of A.S. Xxxxxxxx (or his spouse) and Xx X. Xxxxxxxx (or his spouse)
provided that such consent shall not be required for such issues which relate to
the status of the Partnership as a partnership or the amount, character or
allocation of items of income or loss of the Partnership.
Section 10.4 Withholding. Each Limited Partner hereby authorizes the
Partnership to withhold from or pay on behalf of or with respect to such Limited
Partner any amount of federal, state, local, or foreign taxes that the General
Partner determines that the Partnership is required to withhold or pay with
respect to any amount distributable or allocable to such Limited Partner
pursuant to this Agreement, including, without limitation, any taxes required to
be withheld or paid by the Partnership pursuant to Sections 1441, 1442, 1445 or
1446 of the Code. Any amount paid on behalf of or with respect to a Limited
Partner shall constitute a loan by the Partnership to such Limited Partner,
which loan shall be repaid by such Limited Partner within 15 days after notice
from
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the General Partner that such payment must be made unless (i) the Partnership
withholds such payment from a distribution which would otherwise be made to the
Limited Partner or (ii) the General Partner determines, in its sole and absolute
discretion, that such payment may be satisfied out of the available funds of the
Partnership which would, but for such payment, be distributed to the Limited
Partner. Any amounts withheld pursuant to the foregoing clauses (i) or (ii)
shall be treated as having been distributed to such Limited Partner. Each
Limited Partner hereby unconditionally and irrevocably grants to the Partnership
a security interest in such Limited Partner's Partnership Interest to secure
such Limited Partner's obligation to pay to the Partnership any amounts required
to be paid pursuant to this Section 10.4. In the event that a Limited Partner
fails to pay any amounts owed to the Partnership pursuant to this Section 10.4
when due, the General Partner may, in its sole and absolute discretion, elect to
make the payment to the Partnership on behalf of such defaulting Limited
Partner, and in such event shall be deemed to have loaned such amount to such
defaulting Limited Partner and shall succeed to all rights and remedies of the
Partnership as against such defaulting Limited Partner (including, without
limitation, the right to receive distributions). Any amounts payable by a
Limited Partner hereunder shall bear interest at the base rate on corporate
loans at large United States money center commercial banks, as published from
time to time in the Wall Street Journal, plus two percentage points (but not
higher than the maximum lawful rate) from the date such amount is due (i.e., 15
days after demand) until such amount is paid in full. Each Limited Partner shall
take such actions as the Partnership or the General Partner shall request in
order to perfect or enforce the security interest created hereunder.
ARTICLE 11
TRANSFERS AND WITHDRAWALS
Section 11.1 Transfer
A. The term "transfer," when used in this Article 11 with respect to a
Partnership Interest, shall be deemed to refer to a transaction by which the
General Partner purports to assign its General Partner Interest to another
Person or by which a Limited Partner purports to assign its Limited Partnership
Interest to another Person, and includes a sale, assignment, gift (outright or
in trust), pledge, encumbrance, hypothecation, mortgage, exchange or any other
disposition by law or otherwise. The term "transfer" when used in this Article
11 does not include any Exchange for OP Units or cash pursuant to Section 8.6.
No part of the interest of a Limited Partner shall be subject to the claims of
any creditor, any spouse for alimony or support, or to legal process, and may
not be voluntarily or involuntarily alienated or encumbered except as may be
specifically provided for in this Agreement.
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B. No Partnership Interest shall be transferred, in whole or in part,
except in accordance with the terms and conditions set forth in this Article 11.
Any transfer or purported transfer of a Partnership Interest not made in
accordance with this Article 11 shall be null and void.
Section 11.2 Transfer of General Partner's Partnership interest.
A. Except in connection with a transaction permitted under Section
7.3.E. or a "Termination Transaction" as defined in the partnership agreement of
the General Partner (including the transactions described under Section 11.2.C.
of such agreement), the General Partner shall not withdraw from the Partnership
without the consent of a Majority in Interest of the Limited Partners, which may
be given or withheld by each Limited Partner in its sole and absolute
discretion, and only upon the admission of a successor General Partner pursuant
to Section 12.1. Upon any transfer of a Partnership Interest in accordance with
the provisions of this Section 11.2, the transferee shall become a Substitute
General Partner for all purposes herein, and shall be vested with the powers and
rights of the transferor General Partner, and shall be liable for all
obligations and responsible for all duties of the General Partner, once such
transferee has executed such instruments as may be necessary to effectuate such
admission and to confirm the agreement of such transferee to be bound by all the
terms and provisions of this Agreement with respect to the Partnership Interest
so acquired. It is a condition to any transfer otherwise permitted hereunder
that the transferee assumes, by operation of law or express agreement, all of
the obligations of the transferor General Partner under this Agreement with
respect to such transferred Partnership interest, and no such transfer (other
than pursuant to a statutory merger or consolidation wherein all obligations and
liabilities of the transferor General Partner are assumed by a successor
corporation by operation of law) shall relieve the transferor General Partner of
its obligations under this Agreement without the Consent of the Limited
Partners, in their reasonable discretion. In the event the General Partner
withdraws from the Partnership, in violation of this Agreement or otherwise, or
otherwise dissolves or terminates, or upon the Incapacity of the General
Partner, all of the remaining Partners may elect to continue the Partnership
business by selecting a Substitute General Partner in accordance with the Act.
In all events, the successor entity must be structured so as to permit the
Limited Partners' Exchange rights.
B. In connection with any transactions permitted by Section 11.2.3 or
Section 11.2.C of the Amended and Restated Agreement of Limited Partnership of
the General Partner dated October 9, 1996, which transaction is engaged in by
either the General Partner or the Company, the General Partner shall use
commercially reasonable efforts to structure such transaction to avoid causing
the Limited Partners to recognize gain for federal income tax purposes by
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virtue of the occurrence of or their participation in such transaction. The sole
remedy for a breach by the General Partner of this Section 11.2.B shall be a
claim for damages.
Section 11.3 Limited Partners' Rights to Transfer
A. Any Limited Partner may, at any time, without the consent of the
General Partner, (i) transfer all or any portion of its Partnership Interest to
the General Partner subject to the provisions of Section 11.6, (ii) transfer all
but not a portion of its Partnership Interest to an Affiliate, another original
Limited Partner or to an Immediate Family member, subject to the provisions of
Section 11.6, (iii) transfer all but not a portion of its Partnership Interest
to a trust for the benefit of a charitable beneficiary or to a charitable
foundation, subject to the provisions of Section 11.6, (iv) if it is an estate
or trust, subject to the provisions of Section 11.6 transfer its Partnership
Interest to the named beneficiary or beneficiaries, and (v) subject to the
provisions of Section 11.6, pledge (a "Pledge") all but not a portion of its
Partnership Interest to a lending institution, which is not an Affiliate of such
Limited Partner, as collateral or security for a bona fide loan or other
extension of credit, and transfer such pledged Partnership Interest to such
lending institution in connection with the exercise of remedies under such loan
or extension or credit, and the transfer of such pledged Partnership Interest by
the lender to any transferee. Each Limited Partner or Assignee (including
Limited Partners or Assignees resulting from a transfer made pursuant to clauses
(i) through (v) of the preceding sentence) shall have the right to transfer all
but not a portion of its Partnership Interest, subject to the provisions of
Section 11.6 and the satisfaction of each of the following conditions (in
addition to the right of each such Limited Partner or Assignee to continue to
make any such transfer permitted by clauses (i)-(v) of such preceding sentence
without satisfying either of the following conditions):
(a) General Partner Right of First Refusal. The transferring
Partner shall give written notice of the proposed transfer to the General
Partner, which notice shall state (i) the identity of the proposed transferee,
and (ii) the amount and type of consideration proposed to be received for the
transferred Partnership Interests. Except for transfers made pursuant to clauses
(i)-(v) in Section 11.3.A, the General Partner shall have ten (10) days upon
which to give the transferring Partner notice of its election to acquire the
Partnership Interests on the proposed terms. If it so elects, it shall purchase
the Partnership Interests on such terms within ten (10) days after giving notice
of such election. If it does not so elect, the transferring Partner may transfer
such Partnership Interests to a third party, on economic terms no more favorable
to the transferee than the proposed terms, subject to the other conditions of
this Section 11.3.
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(b) Qualified Transferee. Any transfer of a Partnership Interest
shall be made only to Qualified Transferees.
It is a condition to any transfer otherwise permitted hereunder that
the transferee assumes by operation of law or express agreement all of the
obligations of the transferor Limited Partner under this Agreement with respect
to such transferred Partnership Interest and no such transfer (other than
pursuant to a statutory merger or consolidation wherein all obligations and
liabilities of the transferor Partner are assumed by a successor corporation by
operation of law) shall relieve the transferor Partner of its obligations under
this Agreement without the approval of the General Partner, in its reasonable
discretion. Notwithstanding the foregoing, any transferee of any transferred
Partnership Interest shall be subject to any and all ownership limitations
contained in the Charter and the representations in Section 3.4.D. Any
transferee, whether or not admitted as a Substituted Limited Partner, shall take
subject to the obligations of the transferor hereunder. Unless admitted as a
Substitute Limited Partner, no transferee, whether by a voluntary transfer, by
operation of law or otherwise, shall have rights hereunder, other than the
rights of an Assignee as provided in Section 11.5.
B. If a Limited Partner is subject to Incapacity, the executor,
administrator, trustee, committee, guardian, conservator, or receiver of such
Limited Partner's estate or successor-in-interest shall have all the rights of a
Limited Partner, but not more rights than those enjoyed by other Limited
Partners, for the purpose of settling or managing the estate, and such power as
the Incapacitated Limited Partner possessed to transfer all or any part of his
or its interest in the Partnership. The Incapacity of a Limited Partner, in and
of itself, shall not dissolve or terminate the Partnership.
C. The General Partner may prohibit any transfer otherwise permitted
under Section 11.3 by a Limited Partner of his or her Partnership Interests if,
in the opinion of legal counsel to the Partnership, such transfer would require
the filing of a registration statement under the Securities Act by the
Partnership or would otherwise violate any federal or state securities laws or
regulations applicable to the Partnership or the Partnership Interest.
D. No transfer by a Limited Partner of his or her Partnership Interests
(including any Exchange for OP Units pursuant to Section 8.6) may be made to any
person if (i) in the opinion of legal counsel for the Partnership, it would
result in the Partnership being treated as an association taxable as a
corporation, or (ii) such transfer is effectuated through an "established
securities market" or a "secondary market (or the substantial equivalent
thereof)" within the meaning of Section 7704 of the Code.
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E. No transfer of any Partnership Interests may be made to a lender to
the Partnership or any Person who is related (within the meaning of Section
1.752-4(b) of the Regulations) to any lender to the Partnership whose loan
constitutes a Nonrecourse Liability, without the consent of the General
Partner, in its sole and absolute discretion; provided that, as a condition to
such consent, the lender will be required to enter into an arrangement with the
Partnership and the General Partner to redeem or exchange for OP Units in which
a security interest is held simultaneously with the time at which such lender
would be deemed to be a partner in the Partnership for purposes of allocating
liabilities to such lender under Section 752 of the Code.
Section 11.4 Substituted Limited Partners
A. No Limited Partner shall have the right to substitute a transferee
as a Limited Partner in his or her place (except as to any transferee permitted
by Section 11.3.A). The General Partner shall, however, have the right to
consent to the admission of a transferee of the interest of a Limited Partner
pursuant to this Section 11.4 as a Substituted Limited Partner, which consent
may be given or withheld by the General Partner in its sole and absolute
discretion. The General Partner's failure or refusal to permit a transferee of
any such interests to become a Substituted Limited Partner shall not give rise
to any cause of action against the Partnership or any Partner.
B. A transferee who has been admitted as a Substituted Limited Partner
in accordance with this Article 11 shall have all the rights and powers and be
subject to all the restrictions and liabilities of a Limited Partner under this
Agreement. The admission of any transferee as a Substituted Limited Partner
shall be subject to the transferee executing and delivering to the Partnership
an acceptance of all of the terms and conditions of this Agreement (including
without limitation, the provisions of Section 2.4 and such other documents or
instruments as may be required to effect the admission).
C. Upon the admission of a Substituted Limited Partner, the General
Partner shall amend Exhibit A to reflect the name, address, number of
Partnership Interests, and Percentage Interest of such Substituted Limited
Partner and to eliminate or adjust, if necessary, the name, address and interest
of the predecessor of such Substituted Limited Partner.
Section 11.5 Assignees. If the General Partner, in its sole and
absolute discretion, does not consent to the admission of any permitted
transferee under Section 11.3 as a Substituted Limited Partner, as described in
Section 11.4, such transferee shall be considered an Assignee for purposes of
this Agreement. An Assignee shall be entitled to all the rights of an assignee
of a limited partnership interest under the Act, including the right to receive
distributions from the Partnership and the share of Net Income, Net
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Losses, gain and loss attributable to the Partnership Interests assigned to such
transferee, the rights to transfer the Partnership Interests provided in this
Article 11, and the right of Exchange provided in Section 8.6, but shall not be
deemed to be a holder of Partnership Interests for any other purpose under this
Agreement, and shall not be entitled to effect a Consent with respect to such
Partnership Interests on any matter presented to the Limited Partners for
approval (such Consent remaining with the transferer Limited Partner). In the
event any such transferee desires to make a further assignment of any such
Partnership Interests, such transferee shall be subject to all the provisions of
this Article 11 to the same extent and in the same manner as any Limited Partner
desiring to make an assignment of Partnership Interests.
Section 11.6 General Provisions
A. No Limited Partner may withdraw from the Partnership other than as a
result of (i) a permitted transfer of all of such Limited Partner's Partnership
Interests in accordance with this Article 11 and the transferee(s) of such Units
being admitted to the Partnership as a Substituted Limited Partner or (ii)
pursuant to the exercise of its right of Exchange of all of such Limited
Partner's Partnership Interests under Section 8.6.
B. Any Limited Partner who shall transfer all of such Limited Partner's
Partnership Interests in a transfer permitted pursuant to this Article 11 where
such transferee was admitted as a Substituted Limited Partner or pursuant to the
exercise of its rights of Exchange of all of such Limited Partner's Partnership
Interests under Section 8.6 shall cease to be a Limited Partner.
C. Transfers pursuant to this Article 11 may only be made effective on
the first day of a fiscal quarter of the Partnership, unless the General Partner
otherwise agrees.
D. If any Partnership Interest is transferred, assigned or redeemed
during any quarterly segment of the Partnership's fiscal year in compliance with
the provisions of this Article 11 or transferred pursuant to Section 8.6, on any
day other than the first day of a Partnership Year, then Net Income, Net Losses,
each item thereof and all other items attributable to such interest for such
fiscal year shall be divided and allocated between the transferor Partner and
the transferee Partner by taking into account their varying interests during the
fiscal year in accordance with Section 706(d) of the Code, using the interim
closing of the books method. Except as otherwise required by Section 706(d) of
the Code, solely for purposes of making such allocations, each of such items for
the calendar month in which the transfer, assignment or redemption occurs shall
be allocated to the Person who is a Partner as of midnight on the last day of
said month and none of such items for the calendar month in which an exchange
occurs will be allocated to the Tendering Partner. All distributions of
Available Cash with respect to which the Partnership Record Date is before
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the date of such transfer, assignment or exchange shall be made to the
transferor Partner, and all distributions of Available Cash thereafter, in the
case of a transfer or assignment other than a redemption, shall be made to the
transferee Partner. Notwithstanding the foregoing, the General Partner may adopt
such other conventions relating to allocations in connection with transfers,
assignments, redemptions or Exchanges as it determines are necessary or
appropriate so that, in the case of a distribution of Available Cash to either
the transferor Partner or the transferee Partner during the month in which such
transfer, assignment, redemption or Exchange occurred, there is a corresponding
allocation of income to the partner who received such distribution.
E. In addition to any other restrictions on transfer herein contained,
including without limitation the provisions of this Article 11 and Section 2.6,
in no event may any transfer or assignment of a Partnership Interest by any
Partner (including by way of a Exchange) be made (i) to any person or entity who
lacks the legal right, power or capacity to own a Partnership Interest; (ii) in
violation of applicable law; (iii) of any component portion of a Partnership
Interest, such as the Capital Account, or rights to distributions, separate and
apart from all other components of a Partnership Interest; (iv) if in the
opinion of legal counsel to the Partnership such transfer would cause a
termination of the Partnership for federal or state income tax purposes (except
as a result of the Exchange for OP Units or cash of all Partnership Interests
held by all Limited Partners or pursuant to a transaction expressly permitted
under Section 11.2); (v) if in the opinion of counsel to the Partnership such
transfer would cause the Partnership to cease to be classified as a partnership
for federal income tax purposes (except as a result of the Exchange for OP Units
or cash of all Partnership Interests held by all Limited Partners); (vi) if such
transfer would cause the Partnership to become, with respect to any employee
benefit plan subject to Title I of ERISA, a "party-in-interest" (as defined in
Section 3(14) of ERISA) or a "disqualified person" (as defined in Section
4975(c) of the Code); (vii) if such transfer would, in the opinion of counsel to
the Partnership, cause any portion of the assets of the Partnership to
constitute assets of any employee benefit plan pursuant to Department of Labor
Regulations Section 2510.2-101; (viii) if such transfer requires the
registration of such Partnership Interest pursuant to any applicable federal or
state securities laws; (ix) if such transfer is effectuated through an
"established securities market" or a "secondary market" (or the substantial
equivalent thereof) within the meaning of Section 7704 of the Code or such
transfer causes the Partnership to become a "Publicly Traded Partnership," as
such term is defined in Sections 469(k)(2) or 7704(b) of the Code; (x) if such
transfer subjects the Partnership to be regulated under the Investment Company
Act of 1940, the Investment Advisors Act of 1940 or the Employee Retirement
Income Security Act of 1974, each as amended; (xi) if the transferee or assignee
of such Partnership Interest is unable
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to make the representations set forth in Section 3.4.D. or such transfer could
otherwise adversely affect the ability of the Company to remain qualified as a
REIT; or (xii) if in the opinion of legal counsel for the Partnership such
transfer would adversely affect the ability of the Company to continue to
qualify as a REIT or subject the Company to any additional taxes under Section
857 or Section 4981 of the Code.
F. The General Partner shall monitor the transfers of interests in the
Partnership to determine (i) if such interests are being traded on an
"established securities market" or a "secondary market (or the substantial
equivalent thereof)" within the meaning of Section 7704 of the Code, and (ii)
whether additional transfers of interests would result in the Partnership being
unable to qualify for at least one of the "safe harbors" set forth in
Regulations Section 1.7704-1 (or such other guidance subsequently published by
the IRS setting forth safe harbors under which interests will not be treated as
"readily tradable on a secondary market (or the substantial equivalent thereof)"
within the meaning of Section 7704 of the Code) (the "Safe Harbors"). The
General Partner shall take all steps reasonably necessary or appropriate to
prevent any trading of interests or any recognition by the Partnership of
transfers made on such markets and, except as otherwise provided herein, to
insure that at least one of the Safe Harbors is met.
ARTICLE 12
ADMISSION OF PARTNERS
Section 12.1 Admission of Successor General Partner. A successor to all
of the General Partner's General Partner Interest pursuant to Section 11.2
hereof who is proposed to be admitted as a successor General Partner shall be
admitted to the Partnership as the General Partner, effective upon such
transfer. Any such transferee shall carry on the business of the Partnership
without dissolution. In each case, the admission shall be subject to the
successor General Partner executing and delivering to the Partnership an
acceptance of all of the terms and conditions of this Agreement and such other
documents or instruments as may be required to effect the admission. In the case
of such admission on any day other than the first day of a Partnership Year, all
items attributable to the General Partner Interest for such Partnership Year
shall be allocated between the transferring General Partner and such successor
as provided in Article 11 hereof.
Section 12.2 Admission of Additional Limited Partners
A. After the admission to the Partnership of the initial Limited
Partners on the Effective Date hereof, a Person who makes a Capital Contribution
to the Partnership in accordance with this Agreement shall be admitted to the
Partnership as an Additional Limited Partner only upon furnishing to the General
Partner (i)
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evidence of acceptance in form satisfactory to the General Partner of all of the
terms and conditions of this Agreement, including, without limitation, the power
of attorney granted in Section 2.4 hereof and (ii) such other documents or
instruments as may be required in the discretion of the General Partner in order
to effect such Person's admission as an Additional Limited Partner.
B. Notwithstanding anything to the contrary in this Section 12.2, no
Person shall be admitted as an Additional Limited Partner without the consent of
the General Partner, which consent may be given or withheld in the General
Partner's sole and absolute discretion. The admission of any Person as an
Additional Limited Partner shall become effective on the date upon which the
name of such Person is recorded on the books and records of the Partnership,
following the receipt of the Capital Contribution in respect of such Limited
Partner and the consent of the General Partner to such admission. If any
Additional Limited Partner is admitted to the Partnership on any day other than
the first day of a Partnership Year, then Net Income, Net Losses, each item
thereof and all other items allocable among Partners and Assignees for such
Partnership Year shall be allocated among such Limited Partner and all other
Partners and Assignees by taking into account their varying interests during the
Partnership Year in accordance with Section 706(d) of the Code, using the
interim closing of the books method. Solely for purposes of making such
allocations, each of such items for the calendar month in which an admission of
an Additional Limited Partner occurs shall be allocated among all the Partners
and Assignees including such Additional Limited Partner. All distributions of
Available Cash with respect to which the Partnership Record Date is before the
date of such admission shall be made solely to Partners and Assignees other than
the Additional Limited Partner (other than in its capacity as an Assignee) and,
except as otherwise agreed to by the Additional Limited Partners and the General
Partner, all distributions of Available Cash thereafter shall be made to all
Partners and Assignees including such Additional Limited Partner.
Section 12.3 Amendment of Agreement and Certificate of Limited
Partnership. For the admission to the Partnership of any Partner, the General
Partner shall take all steps necessary and appropriate under the Act to amend
the records of the Partnership and, if necessary, to prepare as soon as
practical an amendment of this Agreement (including an amendment of Exhibit A)
and, if required by law, shall prepare and file an amendment to the Certificate
and may for this purpose exercise the power of attorney granted pursuant to
Section 2.4 hereof.
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ARTICLE 13
DISSOLUTION AND LIQUIDATION
Section 13.1 Dissolution. The Partnership shall not be dissolved by the
admission of Substituted Limited Partners or Additional Limited Partners or by
the admission of a successor General Partner in accordance with the terms of
this Agreement. Upon the withdrawal of the General Partner, any successor
General Partner (selected as described in Section 13.1.B below) shall continue
the business of the Partnership. The Partnership shall dissolve, and its affairs
shall be wound up, upon the first to occur of any of the following ("Liquidating
Events"):
A. the expiration of its term as provided in Section 2.5 hereof;
B. an event of withdrawal of the General Partner, as defined in the
Act, unless, within 90 days after the withdrawal, a Majority of the Remaining
Partners agree in writing, in their sole and absolute discretion, to continue
the business of the Partnership and to the appointment, effective as of the date
of withdrawal, of a substitute General Partner;
C. subject to compliance with Section 7.3.E(2) an election to dissolve
the Partnership made by the General Partner, in its sole and absolute
discretion,
D. entry of a decree of judicial dissolution of the Partnership
pursuant to the provisions of the Act;
E. the sale of all or substantially all of the assets and properties of
the Partnership for cash or marketable securities;
F. the Incapacity of the General Partner, unless all of the remaining
Partners in their sole and absolute discretion agree in writing to continue the
business of the Partnership and to the appointment, effective as of a date prior
to the date of such Incapacity, of a substitute General Partner; or
G. the Exchange for OP Units of all Partnership Interests (other than
those of the General Partner).
Section 13.2 Winding Up
A. Upon the occurrence of a Liquidating Event, the Partnership shall
continue solely for the purposes of winding up its affairs in an orderly manner,
liquidating its assets, and satisfying the claims of its creditors and Partners.
No Partner shall take any action that is inconsistent with, or not necessary to
or appropriate for, the winding up of the Partnership's business and affairs.
The General Partner (or, in the event there is no remaining General Partner, any
Person elected by a Majority in Interest of the Limited Partners (the
"Liquidator")) shall be
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responsible for overseeing the winding up and dissolution of the Partnership and
shall take full account of the Partnership's liabilities and property and the
Partnership property shall be liquidated as promptly as is consistent with
obtaining the fair value thereof, and the proceeds therefrom (which may, to the
extent determined by the General Partner, include shares of stock in the General
Partner) shall be applied and distributed in the following order:
(1) First, to the payment and discharge of all of the Partnership's
debts and liabilities to creditors other than the Partners;
(2) Second, to the payment and discharge of all of the Partnership's
debts and liabilities to the Partners;
(3) The balance, if any, to the General Partner and Limited Partners in
accordance with their positive Capital Account balances, determined after taking
into account all Capital Account adjustments for the Partnership taxable year
during which the liquidation occurs (other than those made as a result of the
liquidating distribution set forth in this Section 13.2.A(4)).
The General Partner shall not receive any additional compensation for any
services performed pursuant to this Article 13 other than reimbursement of its
expenses as provided in Section 7.4.
B. Notwithstanding the provisions of Section 13.2.A hereof which
require liquidation of the assets of the Partnership, but subject to the order
of priorities set forth therein, if prior to or upon dissolution of the
Partnership the Liquidator determines that an immediate sale of part or all of
the Partnership's assets would be impractical or would cause undue loss to the
Partners, the Liquidator may, in its sole and absolute discretion, defer for a
reasonable time the liquidation of any assets except those necessary to satisfy
liabilities of the Partnership (including to those Partners as creditors) and/or
distribute to the Partners, in lieu of cash, as tenants in common and in
accordance with the provisions of Section 13.2.A hereof, undivided interests in
such Partnership assets as the Liquidator deems not suitable for liquidation.
Any such distributions in kind shall be made only if, in the good faith judgment
of the Liquidator, such distributions in kind are in the best interest of the
Partners, and shall be subject to such conditions relating to the disposition
and management of such properties as the Liquidator deems reasonable and
equitable and to any agreements governing the operation of such properties at
such time. The Liquidator shall determine the fair market value of any property
distributed in kind using such reasonable method of valuation as it may adopt.
Section 13.3 Compliance with Timing Requirements of Regulations. In the
event the Partnership is "liquidated" within the meaning of Regulations Section
1.704-1(b)(2)(ii)(g), distributions
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shall be made pursuant to this Article 13 to the General Partner and Limited
Partners who have positive Capital Accounts in compliance with Regulations
Section 1.704-1(b)(2)(ii)(b)(2). If any Partner has a deficit balance in
his or her Capital Account (after giving effect to all contributions,
distributions and allocations for the taxable years, including the year during
which such liquidation occurs), such Partner shall have no obligation to make
any contribution to the capital of the Partnership with respect to such deficit,
and such deficit shall not be considered a debt owed to the Partnership or to
any other Person for any purpose whatsoever. In the discretion of the General
Partner, a pro rata portion of the distributions that would otherwise be made to
the General Partner and Limited Partners pursuant to this Article 13 may be:
A. distributed to a trust established for the benefit of the General
Partner and Limited Partners for the purposes of liquidating Partnership assets,
collecting amounts owed to the Partnership, and paying any contingent or
unforeseen liabilities or obligations of the Partnership or of the General
Partner arising out of or in connection with the Partnership. The assets of any
such trust shall be distributed to the General Partner and Limited Partners from
time to time, in the reasonable discretion of the General Partner, in the same
proportions and the amount distributed to such trust by the Partnership would
otherwise have been distributed to the General Partner and Limited Partners
pursuant to this Agreement; or
B. withheld to provide a reasonable reserve for Partnership liabilities
(contingent or otherwise) and to reflect the unrealized portion of any
installment obligations owed to the Partnership, provided that such withheld
amounts shall be distributed to the General Partner and Limited Partners as soon
as practicable.
Section 13.4 Deemed Distribution and Recontribution. Notwithstanding
any other provision of this Article 13, in the event the Partnership is
liquidated within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g)
but no Liquidating Event has occurred, the Partnership's property shall not be
liquidated, the Partnership's liabilities shall not be paid or discharged, and
the Partnership's affairs shall not be wound up. Instead, the Partnership shall
be deemed to have distributed the Partnership property in kind to the General
Partner and Limited Partners, who shall be deemed to have assumed and taken such
property subject to all Partnership liabilities, all in accordance with their
respective Capital Accounts. Immediately thereafter, the General Partner and
Limited Partners shall be deemed to have recontributed the Partnership property
in kind to the Partnership, which shall be deemed to have assumed and taken such
property subject to all such liabilities.
Section 13.5 Rights of Limited Partners. Except as otherwise provided
in this Agreement, each Limited Partner shall look
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solely to the assets of the Partnership for the return of his Capital
Contribution and shall have no right or power to demand or receive property from
the General Partner. No Limited Partner shall have priority over any other
Limited Partner as to the return of his Capital Contributions, distributions or
allocations.
Section 13.6 Notice of Dissolution. In the event a Liquidating Event
occurs or an event occurs that would, but for provisions of Section 13.1, result
in a dissolution of the Partnership, the General Partner shall, within 30 days
thereafter, provide written notice thereof to each of the Partners and to all
other parties with whom the Partnership regularly conducts business (as
determined in the discretion of the General Partner) and shall publish notice
thereof in a newspaper of general circulation in each place in which the
Partnership regularly conducts business (as determined in the discretion of the
General Partner).
Section 13.7 Cancellation of Certificate of Limited Partnership. Upon
the completion of the liquidation of the Partnership cash and property as
provided in Section 13.2 hereof, the Partnership shall be terminated and the
Certificate shall be cancelled and such other actions as may be necessary to
terminate the Partnership shall be taken.
Section 13.8 Reasonable Time for Winding Up. A reasonable time shall be
allowed for the orderly winding-up of the business and affairs of the
Partnership and the liquidation of its assets pursuant to Section 13.2 hereof,
in order to minimize any losses otherwise attendant upon such winding-up, and
the provisions of this Agreement shall remain in effect between the Partners
during the period of liquidation.
Section 13.9 Waiver of Partition. Each Partner hereby waives any right
to partition of the Partnership property.
ARTICLE 14
AMENDMENT OF PARTNERSHIP AGREEMENT; CONSENTS
Section 14.1 Amendments
A. The actions requiring consent or approval of Limited Partners
pursuant to this Agreement, including Section 7.3, or otherwise pursuant to
applicable law, are subject to the procedures in this Article 14.
B. Amendments to this Agreement may be proposed by the
General Partner or by any Limited Partner. Following such proposal, the General
Partner shall submit any proposed amendment to the Limited Partners. The General
Partner shall seek the written consent of the Limited Partners on the proposed
amendment or shall call a meeting to vote thereon and to transact any other
business that it may deem appropriate. For purposes of obtaining
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a written consent, the General Partner may require a response within a
reasonable specified time, but not less than 15 days, and failure to respond in
such time period shall constitute a consent which is consistent with the General
Partner's recommendation (if so recommended) with respect to the proposal;
provided, that, an action shall become effective at such time as requisite
consents are received even if prior to such specified time.
Section 14.2 Action by the Partners
A. Meetings of the Partners may be called by the General Partner and
shall be called upon the receipt by the General Partner of a written request by
Limited Partners holding 25 percent or more of the Partnership Interests held by
Limited Partners. The call shall state the nature of the business to be
transacted. Notice of any such meeting shall be given to all Partners not less
than seven days nor more than 30 days prior to the date of such meeting.
Partners may vote in person or by proxy at such meeting. Whenever the vote or
Consent of the Limited Partners or of the Partners is permitted or required
under this Agreement, such vote or Consent may be given at a meeting of Partners
or may be given in accordance with the procedure prescribed in Section 14.1
hereof.
B. Any action required or permitted to be taken at a meeting of the
Partners may be taken without a meeting if a written consent setting forth the
action so taken is signed by the percentage as is expressly required by this
Agreement for the action in question. Such consent may be in one instrument or
in several instruments, and shall have the same force and effect as a vote of
the Percentage Interests of the Partners (expressly required by this Agreement).
Such consent shall be filed with the General Partner. An action so taken shall
be deemed to have been taken at a meeting held on the effective date so
certified.
C. Each Limited Partner may authorize any Person or Persons to act for
him by proxy on all matters in which a Limited Partner is entitled to
participate, including waiving notice of any meeting, or voting or participating
at a meeting. Every proxy must be signed by the Limited Partner or his
attorney-in-fact. No proxy shall be valid after the expiration of 11 months from
the date thereof unless otherwise provided in the proxy. Every proxy shall be
revocable at the pleasure of the Limited Partner executing it.
D. Each meeting of Partners shall be conducted by the General Partner
or such other Person as the General Partner may appoint pursuant to such rules
for the conduct of the meeting as the General Partner or such other Person deems
appropriate.
E. Nothwithstanding the foregoing, Sections 4.3.D, 6.4.B and 7.3.E
shall automatically be deleted from this Agreement, and shall have no further
force or effect, upon both (i) the first to occur of the transfer by the
Xxxxxxxx Trust of its Partnership Interest, the death of either A.S. Xxxxxxxx or
his spouse, or the prior
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written consent of the Xxxxxxxx Trust; and (ii) the first to occur of the
transfer by the Xxxxxxxx Trust of its Partnership Interest, the death of either
Xx X. Xxxxxxxx or his spouse, or the prior written consent of the Xxxxxxxx
Trust.
ARTICLE 15
GENERAL PROVISIONS
Section 15.1 Addresses and Notice. Any notice, demand, request or
report required or permitted to be given or made to a Partner or Assignee under
this Agreement shall be in writing and shall be deemed given or made when
delivered in person or when sent by first class United States mail or by other
means of written communication to the Partner or Assignee at the address set
forth in Exhibit A or such other address as the Partners shall notify the
General Partner in writing.
Section 15.2 Titles and Captions. All article or section titles or
captions in this Agreement are for convenience only. They shall not be deemed
part of this Agreement and in no way define, limit, extend or describe the scope
or intent of any provisions hereof. Except as specifically provided otherwise,
references to "Articles" and "Sections" are to Articles and Sections of this
Agreement.
Section 15.3 Pronouns and Plurals. Whenever the context may require,
any pronoun used in this Agreement shall include the corresponding masculine,
feminine or neuter forms, and the singular form of nouns, pronouns and verbs
shall include the plural and vice versa.
Section 15.4 Further Action. The parties shall execute and deliver all
documents, provide all information and take or refrain from taking action as may
be necessary or appropriate to achieve the purposes of this Agreement.
Section 15.5 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their heirs, executors,
administrators, successors, legal representatives and permitted assigns.
Section 15.6 Creditors. Other than as expressly set forth herein with
respect to Indemnitees, none of the provisions of this Agreement shall be for
the benefit of, or shall be enforceable by, any creditor of the Partnership.
Section 15.7 Waiver. No failure by any party to insist upon the strict
performance of any covenant, duty, agreement or condition of this Agreement or
to exercise any right or remedy consequent upon any breach thereof shall
constitute waiver of any such breach or any other covenant, duty, agreement or
condition.
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Section 15.8 Counterparts. This Agreement may be executed in
counterparts, all of which together shall constitute one agreement binding on
all the parties hereto, notwithstanding that all such parties are not
signatories to the original or the same counterparts Each party shall become
bound by this Agreement immediately upon affixing its signature hereto.
Section 15.9 Applicable Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of California, without
regard to the principles of conflicts of law.
Section 15.10 Invalidly of Provisions. If any provision of this
Agreement is or becomes invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not be affected thereby.
Section 15.11 Entire Agreement. This Agreement and the Contribution
Agreement and any other written agreements executed pursuant thereto and
simultaneously therewith contain the entire understanding and agreement among
the Partners with respect to the subject matter hereof and supersede any other
prior written or oral understandings or agreements among them with respect
thereto.
Section 15.12 No Rights as Partners of the General Partners. Nothing
contained in this Agreement shall be construed as conferring upon the holders of
Partnership Interests any rights whatsoever as partners of the General Partner,
including without limitation any right to receive distributions made to partners
of the General Partner or to vote or to consent or to receive notice as Partners
in respect of any meeting of partners for the election of one or more general
partners of the General Partner or any other matter.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
"GENERAL PARTNER" ARDEN REALTY LIMITED PARTNERSHIP,
a Maryland limited partnership
By: Arden Realty, Inc.,
a Maryland corporation,
Its General Partner
By:___________________________________
Name:
Title:
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LIMITED PARTNERS:
____________________________________ ___________________________________
Xx X. Xxxxxxxx, Trustee of the Ed A.S. Xxxxxxxx, Trustee of the A.S.
N. Xxxxxxxx Separate Property Trust Xxxxxxxx Family Trust created by
created by Declaration of Trust Declaration of Trust dated 9/16/87
dated 8/18/87
____________________________________ ___________________________________
Xxxxxx X. Xxxxxxxx, XX ___________________________________,
Executor of the Estate of
Xxxx Xxxxxxxx Xxxxxxx
____________________________________ ___________________________________
Xxxxx Xxxxx Xxxxxxxx Xxxxxx Xxxx Xxxxxxxx
___________________________________
Xxxxxxxxx Xxxx
00.
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EXHIBIT A
PARTNERS, CONTRIBUTIONS AND PARTNERSHIP INTEREST
Amount of Interest
Due on Notes
Agreed Value Receivable Contributed
Cash of Owned (N) or Additional Capital Partnership
Contributions Property Cash Contributed (C) Account Interest
------------- -------- -------------------- ------- --------
General Partner
Arden Realty Limited Partnership $28,762,500* $0 $28,762,500 97.50%
Limited Partners
Xx X. Xxxxxxxx. Trustee 54,310 $203,713 (N) 258,023 0.87488%
000 Xxxxxxxxx Xxxx
Xxx Xxxxxxx, XX 00000
A.S. Xxxxxxxx, Trustee 10,345 150,118 (C) 160,463 0.5438%
000 Xxxxxxx Xxxx
Xxx Xxxxxxx, XX
Xxxxxx X. Xxxxxxxx, XX 11,782 0 11,782 0.04006%
[Address]
Estate of 11,782 0 11,782 0.04006%
Xxxx Xxxxxxxx Xxxxxxx**
00 Xxxx Xxxxxxx Xxxxx,
Xxxxxxxxx
Xxxxxx, Xxxxxxx 00000
Xxxxxxxxx Xxxx 0 3,730 (N) 3,730 0.01264%
[Address]
Xxxxx Xxxxx Xxxxxxxx 5,891 193,822 (N) 199,713 0.67674%
[Address]
Xxxxxx Xxxx Xxxxxxxx 5,891 86,118 (N) 92,008 0.3118%
[Address]
TOTALS $28,762,500 $100,000 $637,500 $29,500,000 100.00%
* Less the outstanding principal balance of the Prudential Loan.
** Assignee only, not a limited partner.
A-1
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EXHIBIT B
NOTICE OF EXCHANGE
The undersigned hereby [irrevocably] (i) transfers __________ Limited
Partnership Interests in Westwood Center, a California Limited Partnership in
accordance with the terms of the Amended and Restated Agreement of Limited
Partnership of Westwood Center, a California Limited Partnership dated August
__, 1997 and the rights of Exchange referred to therein, (ii) surrenders such
Limited Partnership Interests and all right, title and interest therein, and
(iii) directs that the OP Units or cash deliverable upon Exchange be delivered
to the address specified below, and be registered or placed in the name(s) and
at the address(es) specified below.
Dated:___________________
Name of Limited Partner: ________________________________
(Signature of Limited Partner)
________________________________
(Street Address)
________________________________
(City) (State) (Zip Code)
Signature Guaranteed by:
________________________________
Issue OP Units to:
Please insert social security or identifying number:
Name:________________________________
ID #:________________________________
B-1
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EXHIBIT C
CONSTRUCTIVE OWNERSHIP DEFINITION
The term "Constructively Owns" means ownership determined through the
application of the constructive ownership rules of Section 318 of the Code, as
modified by Section 856(d)(5) of the Code. Generally, these rules provide the
following:
a. an individual is considered as owning the Ownership Interest that is
owned, actually or constructively, by or for his spouse, his children, his
grandchildren, and his parents;
b. an Ownership Interest that is owned, actually or constructively, by
or for a partnership or estate is considered as owned proportionately by its
partners or beneficiaries;
C. an ownership Interest that is owned, actually or constructively, by
or for a trust is considered as owned by its beneficiaries in proportion to the
actuarial interest of such beneficiaries (provided, however, that in the case of
a "grantor trust" the Ownership Interest will be considered as owned by the
grantors);
d. if 10 percent or more in value of the stock in a corporation is
owned, actually or constructively, by or for any person, such person shall be
considered as owning the Ownership Interest that is owned, actually or
constructively, by or for such corporation in that proportion which the value of
the stock which such person so owns bears to the value of all the stock in such
corporation;
e. an Ownership Interest that is owned, actually or constructively, by
or for a partner of a partnership or a beneficiary of an estate or trust shall
be considered as owned by the partnership, estate, or trust (or, in the case of
a grantor trust, the grantors);
f. if 10 percent or more in value of the stock in a corporation is
owned, actually or constructively, by or for any person, such corporation shall
be considered as owning the Ownership Interest that is owned, actually or
constructively, by or for such person;
g. if any person has an option to acquire an Ownership Interest
(including an option to acquire an option or any one of a series of such
options), such Ownership Interest shall be considered as owned by such person;
h. an Ownership Interest that is constructively owned by a person by
reason of the application of the rules described in paragraphs (a) through (g)
above shall, for purposes of applying paragraphs (a) through (g), be considered
as actually owned by such person provided, however, that (i) an Ownership
Interest constructively owned by an individual by reason of paragraph (a) shall
not be considered as owned by him for purposes of again applying paragraph (a)
in order to make another the constructive owner of such Ownership Interest, (h)
an Ownership Interest
C-1
112
constructively owned by a partnership, estate, trust, or corporation by reason
of the application of paragraphs (e) or (f) shall not be considered as owned by
it for purposes of applying paragraphs (b), (c), or (d) in order to make another
the constructive owner of such Ownership Interest, (iii) if an Ownership
Interest may be considered as owned by an individual under paragraphs (a) or
(g), it shall be considered as owned by him under paragraph (g), and (iv) for
purposes of the above described rules, an S corporation shall be treated as a
partnership and any stockholder of the S corporation shall be treated as a
partner of such partnership except that this rule shall not apply for purposes
of determining whether stock in the S corporation is constructively owned by any
person.
i. For purposes of the above summary of the constructive ownership
rules, the term "Ownership Interest" means the ownership of stock with respect
to a corporation and, with respect to any other type of entity, the ownership of
an interest in either its assets or net profits.
C-2
113
EXHIBIT D
FORM OF PARTNERSHIP CERTIFICATE
CERTIFICATE FOR PARTNERSHIP INTERESTS OF
WESTWOOD CENTER
No._______________ _______________ UNITS
Arden Realty Limited Partnership, as the General Partner of Westwood
Center, a California Limited Partnership (the "Partnership"), hereby certifies
that _____________________ is a Limited Partner of the Partnership whose
Partnership Interests therein, as set forth in the Amended and Restated
Agreement of Limited Partnership of Westwood Center dated August ___, 1997 (the
"Partnership Agreement"), under which the Partnership is existing and as filed
in the office of the California Secretary of State (copies of which are on file
at the Partnership's principal office at 0000 Xxxxxxxx Xxxxxxxxx, Xxxx Tower,
Suite 700, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000, represent _______ units of limited
partnership interest in the Partnership.
THE UNITS REPRESENTED BY THIS CERTIFICATE OR INSTRUMENT MAY NOT BE
TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF
UNLESS SUCH TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER
DISPOSITION COMPLIES WITH THE PROVISIONS OF THE AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP DATED AS OF JULY ___, 1997 AS IT MAY BE AMENDED FROM TIME
TO TIME (A COPY OF WHICH IS ON FILE WITH THE PARTNERSHIP). EXCEPT AS OTHERWISE
PROVIDED IN SUCH AGREEMENT, NO TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION
OR OTHER DISPOSITION OF THE UNITS REPRESENTED BY THIS CERTIFICATE MAY BE MADE
EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), OR (B) IF THE PARTNERSHIP HAS BEEN
FURNISHED WITH A SATISFACTORY OPINION OF COUNSEL FOR THE HOLDER THAT SUCH
TRANSFER, SALE ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION IS EXEMPT
FROM THE PROVISIONS OF SECTION 5 OF THE ACT AND THE RULES AND REGULATIONS IN
EFFECT THEREUNDER.
DATED:________________, 1997
WESTWOOD CENTER,
a California Limited Partnership
By: Arden Realty Limited Partnership
a Maryland limited partnership
Its General Partner
By: Arden Realty, Inc.
a California Limited Partnership
Its General Partner
By:_______________________________
Name:
Title:
ATTEST:
By:_______________________________
Name:
Title:
D-1
114
EXHIBIT E
SCHEDULE OF PARTNERS' OWNERSHIP
WITH RESPECT TO TENANTS
E-1
115
EXHIBIT F
SCHEDULE OF SHARES OF CAPITAL STOCK OF ARDEN REALTY, INC.,
ACTUALLY OR CONSTRUCTIVELY OWNED BY LIMITED PARTNERS
F-1
116
EXHIBIT D
SCHEDULE OF TENANCIES AND OCCUPANCIES
117
?????? MANAGER Rent Roll Page: 1
Property: WESTWOOD CENTER
----------------------------------------------------------------------------------------------------------------------
Unit Rent Per Lease Lease
Reference Monthly Square Square Starting Exp. Deposits
Number Name Rent Feet Foot Date Date Held
----------------------------------------------------------------------------------------------------------------------
0701 VACANT 0.00 1057 0.00/yr 0.00
0.00/mth
----------------------------------------------------------------------------------------------------------------------
0705 XXXX, XXXXX 1,096.80 457 28.80/yr 6/01/97 5/31/98 1,651.20
2.40/mth
0707 VACANT 0.00 1385 0.00/yr 0.00
----------------------------------------------------------------------------------------------------------------------
0.00/mth
0709 VACANT 0.00 606 0.00/yr 0.00
0.00/mth
----------------------------------------------------------------------------------------------------------------------
0710 VACANT 0.00 2780 0.00/yr 0.00
0.00/mth
0711 UCLA - JONSSON CANCER CENTER 11,620.00 5754 24.23/yr 7/15/87 10/31/10 0.00
----------------------------------------------------------------------------------------------------------------------
2.02/mth
0716 EXECUTIVE PARKING INDUSTRIES 1,855.00 1855 12.00/yr 3/01/97 2/28/02 1,855.00
1.00/mth
----------------------------------------------------------------------------------------------------------------------
0760 UCLA - JONSSON CANCER CENTER 8,746.00 4373 24.00/yr 12/15/89 10/31/10 0.00
2.00/mth
0762 EXECUTIVE PARKING INDUSTRIES 3,554.00 3554 12.00/yr 5/01/97 2/28/02 0.00
----------------------------------------------------------------------------------------------------------------------
1.00/mth
0763 U.C.L.A. DRUG RESEARCH CENTER 18,975.30 9987 22.80/yr 12/01/94 12/31/97 0.00
1.90/mth
----------------------------------------------------------------------------------------------------------------------
0767 EXECUTIVE PARKING INDUSTRIES 1,891.00 1891 12.00/yr 3/01/97 2/28/02 0.00
1.00/mth
0800 XXXXXX, XXXXXX D.D.S. 1,032.00 860 14.40/yr 10/01/96 9/30/97 2,064.00
----------------------------------------------------------------------------------------------------------------------
1.20/mth
0801 XXXXX-XXXXXX & XXXX 1,320.00 550 28.80/yr 6/01/95 5/31/98 1,449.00
2.40/mth
----------------------------------------------------------------------------------------------------------------------
0805 WISH, XXXX X. 860.00 699 14.76/yr 5/01/95 4/30/98 860.00
1.23/mth
0806 XXXX, XXXX, D.D.S. 1,238.40 516 28.80/yr 9/01/92 8/31/10 1,238.00
----------------------------------------------------------------------------------------------------------------------
2.40/mth
0809 VACANT 0.00 344 0.00/yr 0.00
0.00/mth
----------------------------------------------------------------------------------------------------------------------
0811 XxXXXXX, XXX XXXX, M.D. 1,238.40 516 28.80/yr 10/01/96 9/30/99 1,238.90
2.40/mth
0815 XXXXXXX AND XXXXXXXX 2,064.00 860 28.80/yr 2/01/94 1/31/99 2,064.00
----------------------------------------------------------------------------------------------------------------------
2.40/mth
0818 VACANT 0.00 2064 0.00/yr 0.00
0.00/mth
----------------------------------------------------------------------------------------------------------------------
0819 VACANT 0.00 344 0.00/yr 0.00
0.00/mth
0821 XXXXX XXX YU AND KYE XX XX 2,750.00 1375 24.00/yr 12/01/96 11/30/01 3,300.00
----------------------------------------------------------------------------------------------------------------------
2.00/mth
0832 XXXXXXXXX, XXXXX X. 3,492.00 1455 28.80/yr 6/01/93 5/31/00 3,718.56
2.40/mth
----------------------------------------------------------------------------------------------------------------------
118
?????? MANAGER Rent Roll Page: 2
Property: WESTWOOD CENTER
--------------------------------------------------------------------------------------------------------------------
Unit Rent Per Lease Lease
Reference Monthly Square Square Starting Exp. Deposits
Number Name Rent Feet Foot Date Date Held
--------------------------------------------------------------------------------------------------------------------
0835 VACANT 0.00 1325 0.00/yr 0.00
0.00/mth
--------------------------------------------------------------------------------------------------------------------
0837 VACANT 0.00 1902 0.00/yr 0.00
0.00/mth 0.00
0842 XXXXXXXXX/R dba SWISS QUALITY 24.00/yr 6/01/96 6/30/00 480.00
--------------------------------------------------------------------------------------------------------------------
2.00/mth
0844 VACANT 0.00 198 0.00/yr 0.00
0.00/mth
--------------------------------------------------------------------------------------------------------------------
0846 VACANT 0.00 250 0.00/yr 0.00
0.00/mth
0847 VACANT 0.00 619 0.00/yr 0.00
--------------------------------------------------------------------------------------------------------------------
0.00/mth
0850 VACANT 0.00 1125 0.00/yr 0.00
0.00/mth
--------------------------------------------------------------------------------------------------------------------
0851 VACANT 0.00 1662 0.00/yr 0.00
0.00/mth
0900 VACANT 1,574.00 656 28.80/yr 0.00
--------------------------------------------------------------------------------------------------------------------
2.40/mth
0901 VACANT 0.00 2063 0.00/yr 0.00
0.00/mth
--------------------------------------------------------------------------------------------------------------------
0906 XXXXX, XXXXXX SURVOL & XXXX 1,651.20 688 28.80/yr 9/01/95 8/30/98 1,651.20
2.40/mth
0908 VACANT 0.00 688 0.00/yr 0.00
--------------------------------------------------------------------------------------------------------------------
0.00/mth
0913 XXXXXXXX, XXXXX Ph.D. 825.60 344 28.80/yr 5/01/97 4/30/98 825.60
2.40/mth
--------------------------------------------------------------------------------------------------------------------
2.40/mth
0918 VACANT 0.00 344 0.00/yr 0.00
0.00/mth
--------------------------------------------------------------------------------------------------------------------
0919 VACANT 0.00 1031 0.00/yr 0.00
0.00/mth
0921 XXXXXX, XXXX M.D. 1,651.20 688 14.40/yr 10/01/96 9/30/97 1,651.20
--------------------------------------------------------------------------------------------------------------------
1.20/mth
0927 VACANT 0.00 1031 0.00/yr 0.00
0.00/mth
--------------------------------------------------------------------------------------------------------------------
0931 TRAGORRI/OSCAR DBA ORTHO LABS 825.60 344 28.00/yr 9/01/97 8/31/02 825.60
2.40/mth
0932 VACANT 0.00 688 0.00/yr 0.00
--------------------------------------------------------------------------------------------------------------------
0.00/mth
0933 VACANT 0.00 313 0.00/yr 0.00
0.00/mth
--------------------------------------------------------------------------------------------------------------------
119
RESIDENT MANAGER Rent Roll Page: 3
Property: WESTWOOD CENTER
----------------------------------------------------------------------------------------------------------------------
Unit Rent Per Lease Lease
Reference Monthly Square Square Starting Exp. Deposits
Number Name Rent Feet Foot Date Date Held
----------------------------------------------------------------------------------------------------------------------
0935 VACANT 0.00 516 0.00/yr 0.00
0.00/mth
----------------------------------------------------------------------------------------------------------------------
0938 XXXXXXXX, D. & XXXX, R., Ph.D. 1,651.20 688 28.80/yr 2/01/97 1/31/98 1,651.20
2.40/mth
0939 XXXXXXXX, XXXX Ph.D. 1,238.40 516 28.80/yr 12/01/96 11/30/97 0.00
----------------------------------------------------------------------------------------------------------------------
2.40/mth
0000 XXX XXX, XXXXXX, M.D. 825.60 344 28.80/yr 10/01/96 9/30/97 825.60
2.40/mth
----------------------------------------------------------------------------------------------------------------------
0942 VACANT 0.00 688 0.00/yr 0.00
0.00/mth
0943 VACANT 0.00 344 0.00/yr 0.00
----------------------------------------------------------------------------------------------------------------------
0.00/mth
0945 VACANT 0.00 688 0.00/yr 0.00
0.00/mth
----------------------------------------------------------------------------------------------------------------------
0950 XXXXXXXXXX/XXXXX, M.D. 4,951.20 2063 28.80/yr 11/01/94 10/31/97 4,951.20
2.40/mth
0955 VACANT 0.00 1224 0.00/yr 0.00
----------------------------------------------------------------------------------------------------------------------
0.00/mth
1000 UCLA MEDICAL GROUP SERVICES 100.00 3424 0.35/yr 11/01/91 11/30/10 0.00
0.03/mth
----------------------------------------------------------------------------------------------------------------------
1000B VACANT 0.00 4828 0.00/yr 0.00
0.00/mth
1025 VACANT 0.00 1374 0.00/yr 0.00
----------------------------------------------------------------------------------------------------------------------
0.00/mth
1050 VACANT 0.00 8252 0.00/yr 0.00
0.00/mth
----------------------------------------------------------------------------------------------------------------------
1100 CALIFORNIA GRADUATE INSTITUTE 23,568.60 14284 19.80/yr 6/01/93 5/31/98 26,425.40
1.65/mth
1150 VACANT 0.00 2063 0.00/yr 0.00
----------------------------------------------------------------------------------------------------------------------
0.00/mth
1155 VACANT 0.00 1297 0.00/yr 0.00
0.00/mth
----------------------------------------------------------------------------------------------------------------------
1200 VACANT 0.00 1342 0.00/yr 0.00
0.00/mth
1201 VACANT 0.00 590 0.00/yr 0.00
----------------------------------------------------------------------------------------------------------------------
0.00/mth
1205 XXXXXXXXXX, XXXXX M.D. 825.60 344 28.80/yr 07/01/97 6/30/98 825.60
2.40/mth
----------------------------------------------------------------------------------------------------------------------
1207 VACANT 0.00 344 0.00/yr 0.00
0.00/mth
1210 XXXXXXXX, XXXXX, M.D. 1,238.40 516 28.80/yr 3/01/94 2/28/99 1,238.40
----------------------------------------------------------------------------------------------------------------------
2.40/mth
1212 VACANT 0.00 516 0.00/yr 0.00
0.00/mth
----------------------------------------------------------------------------------------------------------------------
120
?????? MANAGER Rent Roll Page: 4
Property: WESTWOOD CENTER
----------------------------------------------------------------------------------------------------------------------
Unit Rent Per Lease Lease
Reference Monthly Square Square Starting Exp. Deposits
Number Name Rent Feet Foot Date Date Held
----------------------------------------------------------------------------------------------------------------------
1213 VACANT 0.00 805 0.00/yr 0.00
0.00/mth
----------------------------------------------------------------------------------------------------------------------
1214 XXXXXXXXX, XXXXX M.D.A. 1,238.40 516 28.80/yr 12/01/94 11/30/99 1,238.40
2.40/mth
1215 VACANT 0.00 516 0.00/yr 0.00
----------------------------------------------------------------------------------------------------------------------
0.00/mth
1216 VACANT 0.00 516 0.00/yr 0.00
0.00/mth
----------------------------------------------------------------------------------------------------------------------
1223 VACANT 0.00 2064 0.00/yr 0.00
0.00/mth
1231 VACANT 0.00 688 0.00/yr 0.00
----------------------------------------------------------------------------------------------------------------------
0.00/mth
1232 VACANT 0.00 1376 0.00/yr 0.00
0.00/mth
----------------------------------------------------------------------------------------------------------------------
1235 VACANT 0.00 1783 0.00/yr 0.00
0.00/mth
1250 VACANT 0.00 5234 0.00/yr 0.00
----------------------------------------------------------------------------------------------------------------------
0.00/mth
0000 XXXXXXXX XXXXXX XXXX. XXXXXX 0.00 4238 0.00/yr 01/01/66 12/31/10 0.00
0.00/mth
----------------------------------------------------------------------------------------------------------------------
1411 VACANT 0.00 344 0.00/yr 0.00
0.00/mth
1414 XXXXXXXXX, XXXX, M.D. 825.60 344 28.80/yr 09/01/96 08/31/10 825.60
LEASE OUT FOR SIGNATURE 1 YEAR
----------------------------------------------------------------------------------------------------------------------
2.40/mth
1416 XXXXXXXX, XXXXXX, A. 825..60 344 28.80/yr 07/01/97 06/30/98 825.60
2.40/mth
----------------------------------------------------------------------------------------------------------------------
1417 VACANT 0.00 714 0.00/yr 0.00
0.00/mth
0000 XXXX XXXXXXX XXXXXX 688.00 344 24.00/yr 11/01/95 10/31/10 0.00
----------------------------------------------------------------------------------------------------------------------
2.00/mth
1421 VACANT 0.00 662 0.00/yr 0.00
0.00/mth
----------------------------------------------------------------------------------------------------------------------
1427 VACANT 0.00 1433 0.00/yr 0.00
0.00/mth
1431 XXXXXX, XXXXXXX 1,099.20 458 28.80/yr 04/01/97 03/31/00 1,099.20
----------------------------------------------------------------------------------------------------------------------
2.40/mth
1432 XXXXXXXXX, XXXXX, MFCC 825.60 344 28.80/yr 09/01/92 08/31/10 825.60
LEASE OUT FOR SIGNATURE 3 YEARS 2.40/mth
----------------------------------------------------------------------------------------------------------------------
1434 XXXXXXX, XXXX, L.C.S.W. 1,238.40 516 28.80/yr 08/01/95 7/31/00 1,238.40
2.40/mth
1435 XXXXXXXX, XXXX 1,238.40 516 28.80/yr 01/01/96 12/31/01 1,238.40
----------------------------------------------------------------------------------------------------------------------
2.40/mth
1436 XXXXXX, XXXXXXXXXX, M.D. 1,238.40 516 28.80/yr 11/01/94 10/31/99 1,238.40
2.40/mth
----------------------------------------------------------------------------------------------------------------------
121
RESIDENT MANAGER Rent Roll Page: 5
Property: WESTWOOD CENTER
----------------------------------------------------------------------------------------------------------------------
Unit Rent Per Lease Lease
Reference Monthly Square Square Starting Exp. Deposits
Number Name Rent Feet Foot Date Date Held
----------------------------------------------------------------------------------------------------------------------
1137 VACANT 0.00 688 0.00/yr 0.00
0.00/mth
----------------------------------------------------------------------------------------------------------------------
1441 XXXXXX, XXXXX, Ph.D. 825.60 344 28.80/yr 5/01/96 4/30/99 825.60
2.40/mth
1442 VACANT 0.00 688 0.00/yr 0.00
----------------------------------------------------------------------------------------------------------------------
0.00/mth
1443 XXXXXX, XXXXXXXXX, M.S.W. 825.60 344 28.80/yr 7/01/97 6/30/98 825.60
2.40/mth
----------------------------------------------------------------------------------------------------------------------
1444 XXXXX, XXXXX Ph.D. 768.00 320 28.80/yr 10/01/95 9/30/98 768.00
2.40/mth
1445 XXXXXXXXXX, XXXXX M.S.W. 825.60 344 28.80/yr 7/01/97 6/30/98 825.60
----------------------------------------------------------------------------------------------------------------------
2.40/mth
1446 VACANT 0.00 344 0.00/yr 0.00
0.00/mth
----------------------------------------------------------------------------------------------------------------------
1447 OPTIMIZATION SOFTWARE 825.60 344 28.80/yr 2/01/95 1/31/98 825.60
2.40/mth
1448 VACANT 0.00 344 0.00/yr 0.00
----------------------------------------------------------------------------------------------------------------------
0.00/mth
1449 VACANT 0.00 344 0.00/yr 0.00
0.00/mth
----------------------------------------------------------------------------------------------------------------------
1450 XXXXXXX, XXXX; XXXXXXX, XXXXX Ph.D. 2,474.40 1031 28.80/yr 10/01/95 9/30/97 2,474.40
2.40/mth
0000 XXXXXX, XXXXXX, Ph.D. 825.60 344 28.80/yr 6/01/95 5/31/98 825.60
----------------------------------------------------------------------------------------------------------------------
2.40/mth
1455 XXXXXXXX, XXXXXXX, Ph.D. 1,444.80 602 28.80/yr 3/01/95 2/28/98 1,444.80
2.40/mth
----------------------------------------------------------------------------------------------------------------------
1500 VACANT 0.00 654 0.00/yr 0.00
0.00/mth
1501 VACANT 0.00 2203 0.00/yr 0.00
----------------------------------------------------------------------------------------------------------------------
0.00/mth
0000 XXXXXX, XXXXXX Ph.D. 825.60 344 28.80/yr 11/01/96 10/31/97 825.60
2.40/mth
----------------------------------------------------------------------------------------------------------------------
1506 XXXXXX, XXXXXX X., M.D. 825.60 344 28.80/yr 4/01/97 3/31/00 825.60
2.40/mth
1510 XXXXXXX & XXXXXXXXX 1,651.20 688 28.80/yr 6/01/96 5/31/99 1,651.20
----------------------------------------------------------------------------------------------------------------------
2.40/mth
1512 XXXXXXXX & COTLOVE 2,064.00 860 28.80/yr 9/01/95 8/31/98 2,064.00
2.40/mth
----------------------------------------------------------------------------------------------------------------------
1515 XXXXX, XXX XXXXX, Ph.D. 825.60 344 28.80/yr 2/01/97 1/31/98 825.60
2.40/mth
1517 XXXXX AND XXXXXXX 825.60 344 28.80/yr 6/01/96 5/31/99 857.20
----------------------------------------------------------------------------------------------------------------------
2.40/mth
1518 VACANT 0.00 516 0.00/yr 0.00
0.00/mth
----------------------------------------------------------------------------------------------------------------------
122
?????? MANAGER Rent Roll Page: 6
Property: WESTWOOD CENTER
---------------------------------------------------------------------------------------------------------------------
Unit Rent Per Lease Lease
Reference Monthly Square Square Starting Exp. Deposits
Number Name Rent Feet Foot Date Date Held
---------------------------------------------------------------------------------------------------------------------
1521 VACANT 0.00 688 0.00/yr 0.00
0.00/mth
---------------------------------------------------------------------------------------------------------------------
1523 VACANT 0.00 688 0.00/yr 0.00
0.00/mth
1527 XXXXXX, XXXXXX X., M.D. 825.60 344 28.80/yr 9/01/96 8/31/01 825.60
---------------------------------------------------------------------------------------------------------------------
2.40/mth
1529 VACANT 0.00 344 0.00/yr 0.00
0.00/mth
---------------------------------------------------------------------------------------------------------------------
1531 VACANT 0.00 344 0.00/yr 0.00
0.00/mth
1532 XXXXXXXX, XXXXXX, M.A., MFCC 825.60 344 28.80/yr 2/01/97 1/31/98 825.60
---------------------------------------------------------------------------------------------------------------------
2.40/mth
1534 XXXXXXXX, XXXXX 741.60 309 28.80/yr 2/01/97 1/31/98 741.30
2.40/mth
---------------------------------------------------------------------------------------------------------------------
1536 XXXXXXX, XXXXXXX, M.S.W., Ph.D. 825.60 344 28.80/yr 3/01/96 2/28/98 860.00
2.40/mth
1537 XXXXXXXX, XXXXXX and XXXXXX 2,474.70 1031 28.80/yr 1/01/97 12/31/97 2,474.10
---------------------------------------------------------------------------------------------------------------------
2.40/mth
1538 XXXXXX, XXXXXXX X., M.D. 825.60 344 28.80/yr 3/01/96 2/28/98 825.60
2.40/mth
---------------------------------------------------------------------------------------------------------------------
1539 VACANT 0.00 344 0.00/yr 0.00
0.00/mth
1543 BEEBEE, MARTIN, MORENO, XXXXXX 1,651.20 688 28.80/yr 9/01/97 8/31/98 1,651.20
---------------------------------------------------------------------------------------------------------------------
2.40/mth
1544 VACANT 1031 24.00/yr 0.00
2.00/mth
---------------------------------------------------------------------------------------------------------------------
1545 VACANT 0.00 344 0.00/yr 0.00
0.00/mth
1547 XXXXXXXXX, XXXXXX X., Ph.D. 860.00 344 30.00/yr 2/01/94 7/31/10 860.00
---------------------------------------------------------------------------------------------------------------------
2.50/mth
1548 UCLA - XXXXX RESEARCH 1,903.80 1002 22.80/yr 8/01/96 7/31/99 0.00
1.90/mth
---------------------------------------------------------------------------------------------------------------------
1550 VACANT 0.00 645 0.00/yr 0.00
0.00/mth
1555 VACANT 0.00 1308 0.00/yr 2,290.87
---------------------------------------------------------------------------------------------------------------------
0.00/mth
1600 ANDERSONN, KAUSS, & XXXXXX 2,299.20 958 28.80/yr 7/01/97 5/31/00 2,299.20
0.00/mth
---------------------------------------------------------------------------------------------------------------------
1601 XXXXXX, XXXXXX Ph.D. 1,416.00 590 28.80/yr 3/01/96 2/28/99 1,416.00
2.40/mth
1605 VACANT 0.00 688 0.00/yr 0.00
---------------------------------------------------------------------------------------------------------------------
0.00/mth
1606 VACANT 0.00 344 0.00/yr 0.00
0.00/mth
---------------------------------------------------------------------------------------------------------------------
123
???? MANAGER Rent Roll Page: 7
Property: WESTWOOD CENTER
----------------------------------------------------------------------------------------------------------------------
Unit Rent Per Lease Lease
Reference Monthly Square Square Starting Exp. Deposits
Number Name Rent Feet Foot Date Date Held
----------------------------------------------------------------------------------------------------------------------
1610 VACANT 0.00 688 0.00/yr 0.00
0.00/mth
----------------------------------------------------------------------------------------------------------------------
1611 XXXXX, XXXXX & XXXXXXXXX, XXXXXX 1,651.20 688 28.80/yr 7/01/95 6/30/98 1,699.20
2.40/mth
1613 VACANT 0.00 344 0.00/yr 0.00
----------------------------------------------------------------------------------------------------------------------
0.00/mth
1614 VACANT 0.00 688 0.00/yr 0.00
0.00/mth
----------------------------------------------------------------------------------------------------------------------
1615 VACANT 0.00 344 0.00/yr 0.00
0.00/mth
1616 XXXX, XXXXXXXX, M.D. 860.00 344 30.00/yr 8/01/91 1/31/10 860.00
----------------------------------------------------------------------------------------------------------------------
2.50/mth
1617 XXXXXX, XXXXX, Ph.D. 777.60 324 28.80/yr 7/01/96 6/30/99 810.00
7.40/mth
----------------------------------------------------------------------------------------------------------------------
1618 VACANT 0.00 344 0.00/yr 0.00
0.00/mth
1619 VACANT 0.00 344 0.00/yr 0.00
----------------------------------------------------------------------------------------------------------------------
0.00/mth
0000 XXXXXXXXX, XXXXX, Ph.D. 825.60 344 28.80/yr 10/01/96 10/31/10 0.00
2.40/mth
----------------------------------------------------------------------------------------------------------------------
1623 XXXXXXXX, XXXXX, Ph.D. 825.60 344 28.80/yr 4/01/96 3/31/99 825.60
2.40/mth
1625 UCLA -- XX. XXXXXX & XX. XXXXXXX 1,892.00 860 26.40/yr 9/01/90 8/31/10 0.00
----------------------------------------------------------------------------------------------------------------------
2.20/mth
0000 XXXXXXX, X. X. MD 1,320.00 550 28.80/yr 6/01/97 5/31/00 1,320.00
2.40/mth
----------------------------------------------------------------------------------------------------------------------
1632 XXXXXXX, XXXXXX X., L.C.S.W. 825.60 344 28.80/yr 4/01/97 3/31/98 825.60
2.40/mth
1633 XXXX, XXXXXX, Ph.D. 825.60 344 28.80/yr 6/01/96 5/31/98 825.60
----------------------------------------------------------------------------------------------------------------------
2.40/mth
1634 XXXXXXX, XXXXX & XXXXXX, XXXXXXX 860.00 344 30.00/yr 2/01/95 1/31/10 825.60
2.50/mth
----------------------------------------------------------------------------------------------------------------------
1636 XXXXXX, XXXXX, M.D. 1,238.40 344 28.80/yr 7/01/95 6/30/98 1,238.40
2.40/mth
1637 VACANT 0.00 688 0.00/yr 0.00
----------------------------------------------------------------------------------------------------------------------
0.00/mth
0000 XXX XXX, XXXXXXX, LCSW 825.60 344 28.80/yr 9/01/97 8/31/98 825.60
2.40/mth
----------------------------------------------------------------------------------------------------------------------
1640 XXXXXX, XXXXXX, G., Ph.D. 1,238.40 516 28.80/yr 7/01/93 6/30/98 2,238.40
2.40/mth
1641 ALT, XXXXXXX X., M.D., Ph.D. 1,238.40 516 28.80/yr 8/01/94 7/31/98 1,238.40
----------------------------------------------------------------------------------------------------------------------
2.40/mth
1642 XXX XXXXXX, XXX, M.D. 825.60 344 28.80/yr 7/01/93 6/30/10 825.60
2.40/mth
----------------------------------------------------------------------------------------------------------------------
124
?????? MANAGER Rent Roll Page: 8
Property: WESTWOOD CENTER
----------------------------------------------------------------------------------------------------------------------
Unit Rent Per Lease Lease
Reference Monthly Square Square Starting Exp. Deposits
Number Name Rent Feet Foot Date Date Held
----------------------------------------------------------------------------------------------------------------------
1644 XXXXXXXX, XXXXX X. 860.00 344 30.00/yr 11/01/83 10/31/10 860.00
2.50/mth
----------------------------------------------------------------------------------------------------------------------
1645 XXXXX, XXXXX X. 1,238.40 516 28.80/yr 8/01/97 7/31/98 1,238.40
2.40/mth
1646 XXXXXXXX, XXXXXXXXX X., Ph.D. 825.60 344 28.80/yr 7/01/96 6/30/99 825.60
----------------------------------------------------------------------------------------------------------------------
2.40/mth
1647 XXXXXXX, XXXXX X., Ph.D. 860.00 344 30.00/yr 2/01/96 1/31/10 825.60
2.50/mth
----------------------------------------------------------------------------------------------------------------------
1648 XXXXXXX, XXXXX Ph.D. 825.60 344 28.80/yr 10/01/95 9/30/98 825.60
2.40/mth
1649 XXXXXXXXXX, XXXXXXX Ph.D. 825.60 344 28.80/yr 2/01/95 1/31/10 825.60
----------------------------------------------------------------------------------------------------------------------
2.40/mth
1650 XXXXXX, XXXXXXX 1,238.40 516 28.80/yr 2/01/97 1/31/98 1,238.40
2.40/mth
----------------------------------------------------------------------------------------------------------------------
0000 XXXXXXXXXX, XXXXXXX, M.D. 984.00 410 28.80/yr 8/01/95 7/31/98 984.00
2.40/mth
1655 AM COLLEGE OBSTETRIC/GYNECOLOGY 1,958.90 1031 22.80/yr 1/01/95 12/31/97 1,958.90
----------------------------------------------------------------------------------------------------------------------
1.90/mth
1700 VACANT 0.00 1204 0.00/yr 0.00
0.00/mth
----------------------------------------------------------------------------------------------------------------------
1701 XXXXXX, XXXX X., Ph.D. 1,517.50 607 30.00/yr 7/01/92 6/30/10 1,517.50
2.50/mth
1707 XXXXXXXX, XXXX M.D. 1,145.00 458 30.00/yr 6/01/96 5/31/10 1,099.20
----------------------------------------------------------------------------------------------------------------------
2.50/mth
1708 VACANT 0.00 1217 0.00/yr 0.00
0.00/mth
----------------------------------------------------------------------------------------------------------------------
0000 XXXXXXXXX, XXXXXXX M.D. 1,279.20 533 28.80/yr 6/01/96 5/31/01 1,279.20
2.40/mth
1715 VACANT 0.00 533 0.00/yr 0.00
----------------------------------------------------------------------------------------------------------------------
0.00/mth
1716 VACANT 0.00 1718 0.00/yr 0.00
0.00/mth
----------------------------------------------------------------------------------------------------------------------
1717 KIM, NADY, Ph.D. 1,279.20 533 28.00/yr 3/01/97 2/28/00 20.86
2.40/mth
1719 XXXX, XXXXX, Ph.D. 852.00 481 21.26/yr 3/01/92 2/28/99 0.00
----------------------------------------------------------------------------------------------------------------------
1.77/mth
1721 XXXXXX, XXXXXX, M.D., INC. 1,422.00 585 29.17/yr 10/01/96 9/30/97 1,422.00
2.43/mth
----------------------------------------------------------------------------------------------------------------------
1724 VACANT 0.00 120 0.00/yr 0.00
0.00/mth
1726 VACANT 0.00 120 0.00/yr 0.00
----------------------------------------------------------------------------------------------------------------------
0.00/mth
1731 VACANT 0.00 533 0.00/yr 0.00
0.00/mth
----------------------------------------------------------------------------------------------------------------------
125
?????? MANAGER Rent Roll Page: 9
Property: WESTWOOD CENTER
--------------------------------------------------------------------------------------------------------------------
Unit Rent Per Lease Lease
Reference Monthly Square Square Starting Exp. Deposits
Number Name Rent Feet Foot Date Date Held
--------------------------------------------------------------------------------------------------------------------
17?? ???? ??????, Ph.D. ??.00 ??? 28.80/yr 11/01/96 10/31/9? ???.00
2.?0/mth
--------------------------------------------------------------------------------------------------------------------
0000 XXXXXXX & XXXX 1,099.20 458 28.80/yr 6/01/97 5/31/98 1,099.20
2.40/mth
1739 XXXX XXXXXXX AS OF 10/1/97 1,152.00 480 2.40/yr 10/01/97 9/30/00 0.00
--------------------------------------------------------------------------------------------------------------------
0.00/mth
1740 VACANT 0.00 1326 0.00/yr 0.00
0.00/mth
--------------------------------------------------------------------------------------------------------------------
1743 SOLAR, XXXXXX, Ph.D. 1,058.40 441 28.80/yr 3/01/94 2/28/98 1,058.40
2.40/mth
1745 YA???A, XXXXXXX 924.00 385 28.80/yr 4/01/96 4/30/10 924.60
--------------------------------------------------------------------------------------------------------------------
2.40/mth
1747 ??????, XXXXX X., Ph.D. 940.80 392 28.80/yr 4/01/97 3/31/00 940.80
?.40/mth
--------------------------------------------------------------------------------------------------------------------
1751 XXXXXXX & XXXXX AS OF 9/1/97 2,008.80 837 0.00/yr 9/01/97 8/31/00 0.00
2.40/mth
1752 XXXXXXXX, XXXX & XXXXXXX 1,651.20 688 28.80/yr 9/01/95 8/31/98 1,651.20
--------------------------------------------------------------------------------------------------------------------
2.40/mth
1??? VACANT 0.00 3427 0.00/yr 0.00
0.00/mth
--------------------------------------------------------------------------------------------------------------------
1801 XXXXXX, XXXXXX X. 3,346.20 1859 21.60/yr 11/01/96 10/31/01 3,569.28
0.00/mth
18?? VACANT 0.00 2780 0.00/yr 0.00
--------------------------------------------------------------------------------------------------------------------
0.00/mth
18?? VACANT 0.00 1239 0.00/yr 0.00
0.00/mth
--------------------------------------------------------------------------------------------------------------------
18?? A.F.S.C.M.E. 3,052.80 1696 21.60/yr 5/01/96 4/30/01 3,052.80
1.80/mth
18?? UCLA 1,048.00 524 24.00/yr 3/01/94 2/28/10 0.00
--------------------------------------------------------------------------------------------------------------------
2.00/mth
1??? VACANT 0.00 3?01 0.00/yr 0.00
0.00/mth
--------------------------------------------------------------------------------------------------------------------
1851 GERSON AND ADRIEN 2,800.00 1120 30.00/yr 5/01/93 4/30/98 2,800.20
2.40/mth
185? ADREIN, CHERI, Ph.D. 566.40 236 28.80/yr 8/01/97 7/31/98 566.40
--------------------------------------------------------------------------------------------------------------------
2.40/mth
18?? VACANT 0.00 17878 0.00/yr 0.00
0.00/mth
--------------------------------------------------------------------------------------------------------------------
1901 VACANT 0.00 0 0.00/yr 0.00
0.00/mth
2000 C??DOW, RIN? XXXXXX 2,337.60 974 28.80/yr 9/01/97 8/31/00 3,437.50
--------------------------------------------------------------------------------------------------------------------
2.40/mth
2??? ????????, ??????, M.D. 1,368.00 ??0 28.80/yr 4/01/97 3/31/98 1,368.00
2.40/mth
--------------------------------------------------------------------------------------------------------------------
126
?????? MANAGER Rent Roll Page: 10
Property: WESTWOOD CENTER
----------------------------------------------------------------------------------------------------------------------
Unit Rent Per Lease Lease
Reference Monthly Square Square Starting Exp. Deposits
Number Name Rent Feet Foot Date Date Held
----------------------------------------------------------------------------------------------------------------------
200? ???????????????????? M.D 84??? 344 28.80/yr 8/01/97 7/31/98 ?????.??
2.40/mth
----------------------------------------------------------------------------------------------------------------------
2006 VACANT 0.00 344 0.00/yr 0.00
0.00/mth
2008 XXXXXX, XXXXX, M.D. 860.00 344 30.00/yr 6/01/96 5/31/10 825.60
----------------------------------------------------------------------------------------------------------------------
2.50/mth
0000 XXXXXX, XXXXX, Ph.D. 1,190.40 496 28.80/yr 7/01/96 6/30/99 1,190.40
2.?0/mth
----------------------------------------------------------------------------------------------------------------------
2010 VACANT 0.00 344 0.00/yr 0.00
0.00/mth
2012 XXXXXXXX, XXXXXX, M.D. 1,238.40 516 28.80/yr 9/01/94 8/31/10 1,238.00
----------------------------------------------------------------------------------------------------------------------
2.40/mth
2014 VACANT 0.00 344 0.00/yr 0.00
0.00/mth
----------------------------------------------------------------------------------------------------------------------
2015 COTTON, OI, XXXXXXX 2,927.50 1171 30.00/yr 6/01/90 5/31/10 2,927.50
2.50/mth
2017 VACANT 0.00 688 0.00/yr 0.00
----------------------------------------------------------------------------------------------------------------------
0.00/mth
2021 ASTOR-?????, XXXXXX, Ph.D. 825.60 344 28.80/yr 1/01/97 12/31/98 825.60
2.40/mth
----------------------------------------------------------------------------------------------------------------------
2025 XXXXXXXX, XXXXXX, M.D. 2,474.40 1031 28.80/yr 2/01/92 1/31/10 0.00
2.40/mth
2029 XXXX, XXXXX, Ph.D. 825.60 344 28.80/yr 6/01/97 5/31/98 825.60
----------------------------------------------------------------------------------------------------------------------
2.40/mth
2031 VACANT 0.00 344 0.00/yr 0.00
0.00/mth
----------------------------------------------------------------------------------------------------------------------
2032 XXXXXXXXX, XXXXX, Ph.D. 825.60 344 28.80/yr 7/01/96 6/30/99 825.60
2.40/mth
2033 XXXXXXXXX, XXXXXXX, Ph.D. 825.60 344 28.80/yr 4/01/97 3/31/98 825.60
----------------------------------------------------------------------------------------------------------------------
2.40/mth
0000 XXXXXXX-XXXXXX, XXXXXX, Ph.D. 825.60 344 28.80/yr 7/01/95 6/30/00 825.60
2.40/mth
----------------------------------------------------------------------------------------------------------------------
2035 VACANT 0.00 344 0.00/yr 0.00
0.00/mth
2036 XXXXXXXXXX, XXXXXX 825.60 344 28.80/yr 12/01/96 11/30/97 825.60
----------------------------------------------------------------------------------------------------------------------
2.40/mth
2037 VACANT 0.00 668 0.00/yr 0.00
0.00/mth
----------------------------------------------------------------------------------------------------------------------
2038 XXXXXXXX, XXXXXXXXX, Ph.D. 860.00 344 30.00/yr 7/01/95 7/31/10 825.60
2.50/mth
2042 VACANT 0.00 516 0.00/yr 0.00
----------------------------------------------------------------------------------------------------------------------
0.00/mth
2045 VACANT 3949 26.40/yr 0.00
2.20/mth
----------------------------------------------------------------------------------------------------------------------
127
???????? MANAGER Rent Roll Page: 11
Property: WESTWOOD CENTER
----------------------------------------------------------------------------------------------------------------------
Unit Rent Per Lease Lease
Reference Monthly Square Square Starting Exp. Deposits
Number Name Rent Feet Foot Date Date Held
----------------------------------------------------------------------------------------------------------------------
2??? VACANT 0.00 ??? 0.00/yr 0.00
2.40/mth
----------------------------------------------------------------------------------------------------------------------
2100 XXXXX AND ??????????????? 1,296.00 540 28.80/yr 8/01/96 7/31/98 1,296.00
2.40/mth
2101 XXXXXX XXXXXXX L., M.D. 1,416.00 590 28.80/yr 8/01/94 7/31/99 1,416.00
----------------------------------------------------------------------------------------------------------------------
2.40/mth
210? ENGLISH ?????? CENTER 4,?????? ?10 ??.??/yr 7/01/97 6/30/98 4,??????
?.??/mth
----------------------------------------------------------------------------------------------------------------------
201? UCLA -- DIVISION OF FAMILY MFD 3,068.50 1805 20.40/yr 12/01/91 7/31/10 0.00
1.70/mth
2112 VACANT 0.00 344 0.00/yr 0.00
----------------------------------------------------------------------------------------------------------------------
0.00/mth
211? VACANT 0.00 688 0.00/yr 0.00
0.00/mth
----------------------------------------------------------------------------------------------------------------------
211? VACANT 0.00 688 0.00/yr 0.00
0.00/mth
2121 VACANT 0.00 688 0.00/yr 0.00
----------------------------------------------------------------------------------------------------------------------
0.00/mth
2125 VACANT 0.00 344 0.00/yr 0.00
0.00/mth
----------------------------------------------------------------------------------------------------------------------
2129 VACANT 0.00 688 0.00/yr 0.00
0.00/mth
2133 VACANT 0.00 688 0.00/yr 0.00
----------------------------------------------------------------------------------------------------------------------
0.00/yr
21?? VACANT 0.00 344 0.00/mth 0.00
0.00/yr
----------------------------------------------------------------------------------------------------------------------
2137 VACANT 0.00 344 0.00/yr 0.00
0.00/mth
2139 MONTY'S WESTWOOD INC. 1,200.00 600 24.00/yr 1/01/82 12/31/10 1,200.00
----------------------------------------------------------------------------------------------------------------------
2.00/mth
21?? MONTY'S WESTWOOD INC. 2,500.00 5400 5.56/yr 11/01/69 10/31/99 2,500.00
0.46/mth
----------------------------------------------------------------------------------------------------------------------
G1057 LAILAI CAFE 6,375.00 5100 15.00/yr 3/01/97 6/30/07 7,395.00
1.25/mth
G10?? XXXXXXXXX ??????? (XXXX) 1,350.00 450 36.00/yr 2/01/96 1/31/01 1,350.00
----------------------------------------------------------------------------------------------------------------------
3.00/mth
G10?? ??? TRAVEL 2,194.00 665 39.59/yr 4/01/92 3/31/92 2,52?.00
3.30/mth
----------------------------------------------------------------------------------------------------------------------
G1080 SOUSANNA, HENRI 1,592.00 923 20.70/yr 9/01/96 12/31/03 1,592.00
1.72/mth
G1082 XXXXX, XXX X. 3,425.00 1400 29.36/yr 3/01/91 2/28/98 3,627.00
----------------------------------------------------------------------------------------------------------------------
2.45/mth
G10?? XXX??? FO????, INC. ??????? 2800 32.82/yr 12/01/88 11/30/98 0.00
BELIEVE THEY MAY HAVE ABANDONED SPACE, 2.??/mth
ATTORNEY'S HANDLING
----------------------------------------------------------------------------------------------------------------------
128
?????? MANAGER Rent Roll Page 12
Property: WESTWOOD CENTER
--------------------------------------------------------------------------------------------------------------------
Unit Rent Per Lease Lease
Reference Monthly Square Square Starting Exp. Deposits
Number Name Rent Feet Foot Date Date Held
--------------------------------------------------------------------------------------------------------------------
G1096 VACANT 0.00 7972 0.00/yr 0.00
0.00/mth
--------------------------------------------------------------------------------------------------------------------
G1150 VACANT 8944 22.94/yr 0.00
1.90/mth
LOBBY1 XXXXX, XXXX 678.00 339 24.00/yr 8/01/97 7/31/98 678.00
--------------------------------------------------------------------------------------------------------------------
2.00/mth
PH07 VACANT 0.00 182 0.00/yr 0.00
0.00/mth
--------------------------------------------------------------------------------------------------------------------
PH1 VACANT 0.00 140 0.00/yr 0.00
0.00/mth
XX00 XXX XXXXXXX ELECTRICAL CORP. 501.00 167 36.00/yr 12/01/94 12/31/10 400.80
--------------------------------------------------------------------------------------------------------------------
3.00/mth
PH14 XXXXXX, XXXXXXX 1,171.20 488 28.80/yr 1/01/95 12/31/98 1,567.20
2.40/mth
--------------------------------------------------------------------------------------------------------------------
PH16 VACANT 0.00 499 0.00/yr 0.00
0.00/mth
PH18 XXXXXXXX ASSOCIATES, XXXXXXX 1,785.00 159 134.72/yr 10/01/94 9/30/10 1,785.00
--------------------------------------------------------------------------------------------------------------------
11.23/mth
PH21 VACANT 387.00 129 36.00/yr 0.00
3.00/mth
--------------------------------------------------------------------------------------------------------------------
PH22 VACANT 0.00 129 0.00/yr 0.00
0.00/mth
PH2200 VACANT 0.00 5888 0.00/yr 0.00
--------------------------------------------------------------------------------------------------------------------
0.00/mth
PH23 XXXXXX, XXXXXX 718.00 170 50.68/yr 12/01/94 12/01/10 943.80
4.22/mth
--------------------------------------------------------------------------------------------------------------------
PH24 VACANT 0.00 161 0.00/yr 0.00
0.00/mth
XX00 XXXXXX, XXX 196.00 72 32.67/yr 12/01/96 12/31/10 196.80
--------------------------------------------------------------------------------------------------------------------
2.72/mth
PH26 XXXXXXXX, XXXXXXX, Ph.D. 216.00 72 36.00/yr 6/01/96 6/30/10 216.00
3.00/mth
--------------------------------------------------------------------------------------------------------------------
PH27A VACANT 104.00 30 ?1.60/yr 0.00
3.47/mth
PH27B VACANT 0.00 30 0.00/yr 0.00
--------------------------------------------------------------------------------------------------------------------
0.00/mth
PH30 XXXX, XXXXX 282.00 59 57.36/yr 3/01/96 3/31/10 0.00
4.78/mth
--------------------------------------------------------------------------------------------------------------------
PH4 XXXX, XXXXX 588.00 196 ?6.00/yr 7/01/96 6/30/10 0.00
3.00/mth
PH5 XXX, XXXXXX 597.00 164 43.68/yr 2/01/97 3/31/10 492.00
--------------------------------------------------------------------------------------------------------------------
3.64/mth
XX0 XXXXXXXXX, XXXX 492.00 164 36.00/yr 5/01/97 4/30/98 492.00
3.00/mth
--------------------------------------------------------------------------------------------------------------------
129
?????? MANAGER Rent Roll Page: 13
Property: WESTWOOD CENTER
----------------------------------------------------------------------------------------------------------------------
Unit Rent Per Lease Lease
Reference Monthly Square Square Starting Exp. Deposits
Number Name Rent Feet Foot Date Date Held
----------------------------------------------------------------------------------------------------------------------
PH8 VACANT 447.00 149 36.00/yr 0.00
3.00/mth
----------------------------------------------------------------------------------------------------------------------
PH9 XXX XXXXX 561.00 187 36.00/yr 3/01/97 2/28/99 561.00
3.00/mth
PHMAIL XXXXXX & XXXXXXXX, INC. 150.00 0 0.00/yr 6/01/95 6/30/10 559.28
----------------------------------------------------------------------------------------------------------------------
0.00/mth
PHMAIL2 XXXXXXX, XXXXX 150.00 0 00.00/yr 6/01/97 6/30/10 580.00
0.00/mth
----------------------------------------------------------------------------------------------------------------------
PRK001 CINAMERICA THEATRES, L.P. 5,000.00 0 0.00/yr 7/01/94 7/31/06 0.00
0.00/mth
PRK300 XXXXXX, XXXXXXX (XXXXXX'X) 1,359.60 1133 14.40/yr 10/01/96 9/30/97 1,359.60
----------------------------------------------------------------------------------------------------------------------
1.20/mth
PRKNG VACANT 0.00 0 0.00/yr 0.00
0.00/mth
----------------------------------------------------------------------------------------------------------------------
ST762 VACANT 0.00 0 0.00/yr 0.00
0.00/mth
STR10 CALIFORNIA GRADUATE INSTITUTE 100.00 100 12.00/yr 1/31/95 2/28/10 0.00
----------------------------------------------------------------------------------------------------------------------
1.00/mth
STR11 CALIFORNIA GRADUATE INSTITUTE 100.00 100 12.00/yr 4/01/95 3/31/10 0.00
1.00/mth
----------------------------------------------------------------------------------------------------------------------
STR15 VACANT 0.00 100 0.00/yr 0.00
0.00/mth
STR17 REGENTS OF UNIVERSITY CALIF. 100.00 100 12.00/yr 4/01/97 4/30/10 0.00
----------------------------------------------------------------------------------------------------------------------
1.00/mth
STR19 REGENTS OF UNIVERSITY CALIF. 100.00 100 12.00/yr 6/01/97 6/30/10 0.00
1.00/mth
----------------------------------------------------------------------------------------------------------------------
STR22 A.F.S.C.M.E. 100.00 100 12.00/yr 8/01/96 8/31/10 0.00
1.00/mth
STR23 VACANT 0.00 100 0.00/yr 0.00
----------------------------------------------------------------------------------------------------------------------
0.00/mth
STR25 REGENTS OF UNIVERSITY CALIF. 100.00 100 12.00/yr 8/01/97 8/31/10 0.00
1.00/mth
----------------------------------------------------------------------------------------------------------------------
STR26 XXXXXXXX, XXXXXX, M.D. 100.00 100 12.00/yr 7/01/97 7/31/10 0.00
1.00/mth
STR28 ANGELES DESIGN SYSTEMS, INC. 100.00 100 12.00/yr ?/01/9? 3/31/10 0.00
----------------------------------------------------------------------------------------------------------------------
1.00/mth
STR3 UCLA 100.00 100 12.00/yr 5/01/96 3/31/10 0.00
1.00/mth
----------------------------------------------------------------------------------------------------------------------
XXX00 XXXXXXXXXX, XXXXXX 100.00 100 12.00/yr ?/??/?? 11/30/10 0.00
?.?0/mth
STR34 CORPORATION OF XXXX MANTILINI 400.00 450 ?0.67/yr ?/??/?? 4/30/10 0.00
----------------------------------------------------------------------------------------------------------------------
0.89/mth
STR38 VACANT 0.00 200 0.00/yr 0.00
0.00/mth
----------------------------------------------------------------------------------------------------------------------
130
?????? MANAGER Rent Roll Page: 14
Property: WESTWOOD CENTER
----------------------------------------------------------------------------------------------------------------------
Unit Rent Per Lease Lease
Reference Monthly Square Square Starting Exp. Deposits
Number Name Rent Feet Foot Date Date Held
----------------------------------------------------------------------------------------------------------------------
???? ?????? ? ?? ??? ??.00/yr ?.??
?.00/mth
----------------------------------------------------------------------------------------------------------------------
?-STR8 VACANT 0.00 100 0.00/yr 0.00
0.00/mth
?-STR9 VACANT 0.00 100 0.00/yr 0.00
----------------------------------------------------------------------------------------------------------------------
0.00/mth
????? ????? ???.?? 100 12.00/yr ?/??/?? ?/??/?? ?.??
1.00/mth
----------------------------------------------------------------------------------------------------------------------
?-STRG VACANT 0.00 100 0.00/yr 0.00
0.00/mth
?-STRH VACANT 0.00 100 0.00/yr 0.00
----------------------------------------------------------------------------------------------------------------------
0.00/mth
?-STR UCLA ALUMNI ASSOCIATION ???.00 28? 12.00/yr 11/01/94 10/31/10 0.00
1.00/mth
----------------------------------------------------------------------------------------------------------------------
?-STRP3 U.C.L.A. 150.00 0 0.00/yr 12/01/94 12/31/97 0.00
0.00/mth
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
131
EXHIBIT E
SCHEDULE AND DESCRIPTION OF SERVICE CONTRACTS
VENDOR PAID AMOUNT
------------------------------------ ---------- ------------
ACCO Monthly $8679.81
(HVAC)
American Reclamation Monthly 968.00
(Trash)
Arch Communications Monthly 68.45
(Pagers)
Blue Cross Monthly 976.00
(Dependents Health Insurance)
Xxxxxxxxx & Xxxxxx Monthly 1200.00
(Acct.)
G&K Services Monthly 350.00
(Uniforms)
Honeywell Quarterly 53.25
(Fire Alarm)
Page Net Monthly 29.40
(Pager)
Premium Property Protective Monthly 10,000(appr)
Services (Security)
Premier/ABM Monthly 14,500(appr)
(Janitorial)
Principal Mutual Monthly 3,042.90
(Health Insurance)
Telecom Communications Monthly 90.00
(Answering Service)
132
EXHIBIT F
Intentionally Deleted
133
EXHIBIT G
TENANT ESTOPPEL CERTIFICATE
Westwood Center
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Re: Tenant Lease for 0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Suite _________
Ladies and Gentlemen:
We understand that Westwood Center, the partnership that owns the office
building complex located at 0000 Xxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx (the
"Property") in which the undersigned is a tenant, proposes to admit a new
partner. We further understand that it is necessary that you understand the
precise nature of our tenancy and in order to so do, we hereby warrant and
represent to you that with respect to our lease, as amended (the "Lease") and
more particularly described in Schedule "A" attached hereto (the "Schedule") the
following is true and correct:
1. The Lease constitutes the entire agreement between the undersigned and
the landlord thereunder with respect to the subject matter thereof and the Lease
has not been modified, amended or supplemented in any way except by the
amendments or other agreements described in the Schedule.
2. The summary of the basic terms of the Lease contained in the Schedule
is true and correct.
3. Except as provided in the Schedule, the undersigned has not assigned,
transferred or hypothecated the Lease or any interest therein or entered into a
sublease for any portion of the premises covered by the Lease and no person or
firm other than the undersigned or its employees is in possession of such
premises or any portion thereof.
4. The undersigned is not in default (or with the giving of notice or the
passage of time or both will not be in default) under the Lease and the
undersigned has no claim against, off-set, credit, defense, counterclaim or
deductions against the landlord thereunder or, any rent or other sums due or
payable under the Lease and, the landlord thereunder is not in default (or with
the giving of notice or the passage of time or both will not be in default)
under the Lease.
5. The undersigned has no option, right of first refusal or otherwise to
purchase the Property or any portion thereof or any interest therein and the
only interest of the undersigned in the Property is that of a tenant pursuant to
the terms of the Lease.
6. The undersigned does not engage in the generation, storage or disposal
of "Hazardous Materials" on the Property and to the best of the undersigned's
knowledge, there are no Hazardous Materials located in, on, under or in the
vicinity of the Premises demised by the Lease except for normal office supplies.
The undersigned agrees not to use, store, or permit the
134
Lease except for normal office supplies. The undersigned agrees not to use
store, or permit the use, storage or release of any Hazardous Materials on,
under or about the Premises or the Property other than what is permitted by
applicable law, codes, regulations or restrictions and used by the undersigned
in accordance with applicable laws and in amounts as dictated by the normal
conduct of the undersigned's business. The term "Hazardous Material" means any
toxic or hazardous substance, material or wastes which if or becomes regulated
by any local government, the State of California, the United States government
or any agency or division thereof.
7. The undersigned is not the subject of any bankruptcy, insolvency,
debtor's relief, reorganization, receivership or other similar proceedings.
8. The person executing this Certificate hereby warrants and represents
that he or she has the power and authority to execute and deliver this
Certificate on behalf of the tenant named herein.
9. The undersigned as tenant hereby ratifies and confirms the Lease and
the tenancy created thereby.
We understand that the new partner of Westwood Center will rely on this
Certificate.
Very truly yours,
------------------------------------------
Name of Tenant
------------------------------------------
Signature
------------------------------------------
Date
135
SCHEDULE "A"
Summary of Lease Terms
(1) Name of Tenant:
-----------------------------------------------------------
(2) Lease Date:
---------------------------------------------------------------
(3) Amendment Dates, Separate Agreements, if any:
-----------------------------
(4) Suite No.: ; Estimated Square Footage:
------------------- ------------------
(5) Lease Commencement Date: ; Expiration of Term:
--------------- ---------------
(6) Option(s) to Extend:
------------------------------------------------------
(7) Option(s) for Additional Space:
-------------------------------------------
(8) Monthly Base Rent: $ ;
-------------
Escalations/CAM Charges: $ ;
-------------
Total Monthly Rent: $ .
-------------
(9) Tenant's Percentage Share of Increased Operating Costs: %
------------------
(10) Security Deposit: $ ; Prepaid Rent:
--------------- --------------------------
(11) Assignees/Subtenants:
-----------------------------------------------------
(12) Parking Spaces:
-----------------------------------------------------------
(13) Lease Guarantor(s):
-------------------------------------------------------
(14) Uncured Defaults by Landlord: None
--------------------------------------------
(15) Exclusive Uses:
-----------------------------------------------------------
(16) Tenant Improvements or other allowances due Tenant: $
---------------------
(17) Comments, if any:
--------------------------------------------------------
----------------------------------------
Name of Tenant
By:
-----------------------------------
Date:
-----------------------------------
136
EXHIBIT H
LIABILITY AGREEMENT
137
LIABILITY AGREEMENT
THIS LIABILITY AGREEMENT (the "Agreement") is made this________ day
of_________ , 1997 by and between Xx X. Xxxxxxxx both individually and as
Trustee of the Xx X. Xxxxxxxx Separate Property Trust created by Declaration of
Trust dated 8/18/87 and __________ Xxxxxxxx (collectively referred to as
"Xxxxxxxx"), A.S. Xxxxxxxx both individually and as Trustee of the A.S. Xxxxxxxx
Family Trust created by Declaration of Trust dated 9/16/87 and Xxxxxx Xxxxxxxx
(collectively referred to as "Xxxxxxxx") and Arden Realty Limited Partnership, a
Maryland limited partnership ("Arden OP") (Xxxxxxxx, Xxxxxxxx and Xxxxx OP are
sometimes hereinafter referred to as a "Party" or collectively as the
"Parties"), with reference to the following facts:
A. Prior to the date hereof, Xx X. Xxxxxxxx as Trustee of the Xx X.
Xxxxxxxx Separate Property Trust created by Declaration of Trust dated 8/18/87
("Xxxxxxxx Trust") and A.S. Xxxxxxxx as Trustee of the A.S. Xxxxxxxx Family
Trust dated 9/16/87 ("Xxxxxxxx Trust") were the general partners of Westwood
Center, a California limited partnership (the "Partnership"). Pursuant to a
certain Agreement to Contribute dated _________, 1997 (the "Contribution
Agreement") between the Partnership and Arden OP, concurrently herewith Arden OP
is making a substantial capital contribution to the Partnership and is being
admitted as the general partner of the Partnership, and the interests held by
Xxxxxxxx Trust and Xxxxxxxx Trust are being converted to that of limited
partners.
B. The Partnership has outstanding certain indebtedness evidenced
by that certain promissory note (the "Note") dated June 5, 1985 in the original
principal amount of $16,000,000 in favor of The Prudential Insurance Company of
America, Loan Number 2190495, which Note is secured by a Deed of Trust (the
"Deed of Trust") covering the real property (the "Property") owned by the
Partnership. The Note, Deed of Trust and all loan documents ancillary thereto
are hereinafter collectively referred to as the "Prudential Loan." The Note was
executed by Xxxxxxxx Trust and Xxxxxxxx Trust on behalf of the Partnership as
its general partners. The Prudential Loan is a "recourse loan" for which both
the Partnership and Xxxxxxxx Trust and Xxxxxxxx Trust, as its general partners
who executed the Note on behalf of the Partnership, are personally liable.
C. This Agreement is being executed pursuant to the Contribution
Agreement in order to allocate liability for the Prudential Loan as between
Xxxxxxxx and Xxxxxxxx, as the former general partners and their affiliates, on
the one hand, and Arden OP, as the newly admitted general partner, on the other
hand.
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138
NOW, THEREFORE, in consideration of the foregoing recitals and
other good and valuable consideration, the receipt of which is hereby
acknowledged, the Parties agree as follows:
1. Allocation of Liability for the Prudential Loan. The Parties
acknowledge and agree that notwithstanding the liability of any of them to
Prudential with respect to the Prudential Loan, as among the Parties, each of
them shall be liable for the Prudential Loan as follows:
(a) Xxxxxxxx and Xxxxxxxx shall be liable for the first Thirteen
Million Dollars ($13,000,000) of the Prudential Loan (the amount for which
Xxxxxxxx and Xxxxxxxx are liable being hereinafter referred to as the
"Xxxxxxxx/Xxxxxxxx Share"). Arden OP shall be liable for any amounts due under
the Prudential Loan for which Xxxxxxxx and Xxxxxxxx are not liable hereunder
(the "Arden Share"), including without limitation amounts due in excess of
Thirteen Million Dollars ($13,000,000). The Xxxxxxxx/Xxxxxxxx Share and the
Arden Share are sometimes hereinafter referred to as the applicable Party's
"Share."
(b) Notwithstanding any provision to the contrary in this
Agreement:
(i) Neither Xxxxxxxx nor Xxxxxxxx shall have any liability
for the Xxxxxxxx/Xxxxxxxx Share hereunder in the event of "material uninsured
damage" to the Property due to an earthquake. For purposes of this Agreement,
"material uninsured damage" shall mean damage to the Property that is not
compensated by insurance and which is in an amount greater than twenty percent
(20%) of the outstanding principal balance of the Prudential Loan as of the date
hereof.
(ii) Prudential (or its successors or assigns) (hereafter
collectively referred to as "Prudential") first must have exercised all of its
rights, powers and remedies with respect to foreclosure on the Property and any
other collateral held by it as security for the repayment of the Prudential
Loan, and after such exercise, must have applied all net proceeds or other
amounts received (including the amount of all credit bids and the like) from
such foreclosure sale or sales to the discharge of the Prudential Loan, before
the obligation of Xxxxxxxx and Xxxxxxxx for the Xxxxxxxx/Xxxxxxxx Share shall
arise hereunder, and the obligation of Xxxxxxxx and Xxxxxxxx for the
Xxxxxxxx/Xxxxxxxx Share shall be limited to the excess (if any) of (x) Thirteen
Million Dollars ($13,000,000), over (y) the net proceeds or other amounts
attributable to the foreclosure sale or sales of the Property and any other
collateral which are applied to the discharge of the Prudential Loan.
By way of example only, and not in limitation of the foregoing:
if there were a default under the Prudential Loan
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139
of $16,000,000, and if the Property brought at least $13,000,000 at foreclosure,
the obligation of Xxxxxxxx and Xxxxxxxx for the Xxxxxxxx/Xxxxxxxx Share would be
limited to the excess of $13,000,000 over $13,000,000, or zero, and Xxxxxxxx and
Xxxxxxxx would have no liability hereunder. If, however, for reasons other than
"material uninsured damage" to the Property due to earthquake, the Property
brought only $10,000,000 at foreclosure, the obligation of Xxxxxxxx and Xxxxxxxx
for the Xxxxxxxx/Xxxxxxxx Share would be limited to the excess of $13,000,000
over $10,000,000, or $3,000,000.
2. Allocation of Xxxxxxxx/Xxxxxxxx share Among Xxxxxxxx and
Xxxxxxxx. To the extent Xxxxxxxx and Xxxxxxxx are liable for the
Xxxxxxxx/Xxxxxxxx Share, Xxxxxxxx shall be liable for 82.31% thereof and
Xxxxxxxx shall be liable for 17.69% thereof. The liabilities of Xxxxxxxx and
Xxxxxxxx hereunder shall be several and not joint.
3. Term of Agreement. This Agreement, as well as all of the rights,
duties, requirements and obligations created hereunder, shall remain in full
force and effect as long as the Prudential Loan is outstanding, and shall
terminate on the date on which the Prudential Loan is satisfied in full.
4. Indemnification. If, for any reason, a Party (the "Indemnitee")
makes any payment to Prudential with respect to the Prudential Loan in excess of
his or its respective Share (the "Excess Payment"), the Party liable for such
payment hereunder (the "Indemnitor") shall absolutely and unconditionally
reimburse the Indemnitee for the lesser of (i) the full amount of the Excess
Payment, or (ii) the maximum amount that the Indemnitor would have been
obligated to pay hereunder had such Excess Payment not been made by the
Indemnitee. The Indemnitor shall reimburse the Indemnitee as required by this
Section 4 within ten (10) days after receiving notice of an Excess Payment from
the Indemnitee. Any payment made pursuant to this Section 4 shall for all
purposes hereunder be treated as a payment of such Indemnitor's respective Share
of the Prudential Loan in accordance with Section 1 hereof.
5. Amendments of the Note or Deed of Trust. Except as provided to
the contrary in the Contribution Agreement and the Amended and Restated
Agreement of Limited Partnership of Westwood Center dated_________________, 1997
(the "Amended and Restated Agreement") and subject to the provisions therein
regarding the Prudential Loan (as therein defined)(including without limitation
Section 2(b) of the Contribution Agreement and Section 4.3.D of the Amended and
Restated Agreement), the Partnership, Prudential or any subsequent holder of the
Note or beneficiary of the Deed of Trust may, from time to time, without notice
to or consent of Xxxxxxxx or Xxxxxxxx, agree to any amendment, waiver,
modification or alteration of the Note or Deed of Trust and the
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140
Partnership's rights and obligations thereunder (including without limitation
renewa1, waiver or variation of the maturity of the indebtedness evidenced by
the Note, increase or reduction of the rate of interest payable under the Note,
release, substitution or addition of any guarantor or endorser and acceptance or
release of any security for the Note). The Note may be extended one or more
times without notice to or consent from Xxxxxxxx or Xxxxxxxx, and the Parties
shall remain at all times bound to their obligations under this Agreement
notwithstanding such extensions.
6. Notices, etc, Relating to the Prudential Loan. Each Party shall
promptly send to the other Parties copies of all notices, demands, pleadings and
the like received by the Party with respect to any default, foreclosure or other
action on the Prudential Loan.
7. Waivers. Xxxxxxxx and Xxxxxxxx each expressly waives any and all
rights of subrogation, reimbursement, indemnity, exoneration, contribution or
any other claim which they may now or hereafter have against the Partnership or
any other person directly or contingently liable for the payment or performance
of the Prudential Loan except for those rights arising from this Agreement. In
furtherance, and not in limitation, of the preceding waiver, Xxxxxxxx and
Xxxxxxxx each agrees that any payment to Prudential pursuant to this Agreement
shall be deemed a contribution to the capital of the Partnership and any such
payment shall not cause either Xxxxxxxx or Xxxxxxxx to be a creditor of the
Partnership.
8. No Third Party Beneficiary. No provisions of this Agreement,
express or implied, are intended or shall be construed to confer upon or give to
any person other than the Parties hereto, any rights, remedies or other benefits
under or by reason of this Agreement, and all provisions hereof shall be
personal solely between the Parties to this Agreement.
9. No Assignment. None of the Parties shall be entitled to assign
their rights or obligations under this Agreement to any other person without the
written consent of the other Parties.
10. Entire Agreement. The Parties agree that this Agreement
contains the entire understanding and agreement between them with respect to the
subject matter hereof and cannot be amended, modified or superseded except by an
agreement in writing signed by the Parties.
11. Notices. All notices and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given only
if done in one or more of the following ways: (a) on the day of delivery if
delivered personally; (b)
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141
two (2) days after the date of mailing if mailed by certified or registered
first class mail, postage prepaid; (c) the next business day after deposit with
an overnight air courier company guaranteeing next day delivery; or (d) when
sent by facsimile (with a copy simultaneously sent by registered or certified
mail, return receipt requested). Such notices shall be given to a party at the
address and/or facsimile telephone number set forth below:
If to Xxxxxxxx: Xx X. Xxxxxxxx, Trustee of the
Xx X. Xxxxxxxx Separate Property
Trust u/d/t dated August 18, 1987
x/x Xxxxxx Xxxxxx, Xxx.
Xxxxxx, Xxxxxx & Xxxxxxx
Xxx Xxxxxxxx Xxxxxxxxx, #0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Facsimile: (000) 000-0000
If to Xxxxxxxx Trust: A.S. Xxxxxxxx, Trustee u/d/t
dated September 6 1987 establishing the
A.S. Xxxxxxxx Family Trust
000 Xxxxxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
If to Arden OP: Arden Realty Limited Partnership
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000 Xxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xx. Xxxxxxx X. Xxxxx
Facsimile: (000) 000-0000
With a copy to: Xxxx & Xxxxx
0000 Xxxxxxx Xxxx Xxxx
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
Any party may, at any time by giving five (5) days' prior written notice to the
other party, designate any other address in substitution of the foregoing
address to which such notice will be given.
12. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of California other
than conflict of laws.
13. Litigation Costs. In the event it becomes necessary to enforce
the provisions of this Agreement against any of the Parties, the prevailing
party shall be entitled to receive, in addition to any other recovery, costs of
enforcement,
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142
including attorneys and accountants fees, whether or not litigation is
instituted.
14. Severability. If any provision of this Agreement shall be held
invalid, the remainder of this Agreement, or the application of such provision
to persons or circumstances other than those as to which it is held invalid,
shall not be affected thereby. If any provision of this Agreement shall be held
invalid due to its scope or breadth, such provision shall be deemed valid to the
extent of the scope or breadth permitted by law.
15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed an original; such
counterparts shall together constitute but one agreement.
16. Cautions. Section titles or captions contained in this
Agreement are inserted only as a matter of convenience and for reference and in
no way define, limit, extend or describe the scope of this Agreement or the
intent of any provision hereof.
IN WITNESS WHEREOF, the Parties have executed this Agreement the
day and year first above written.
ARDEN REALTY LIMITED PARTNERSHIP,
a Maryland limited partnership
By: Arden Realty, Inc.,
a Maryland corporation,
Its General Partner
By:______________________________
Xxxxxx X. Xxxxxxx
President
_____________________________________
Xx X. Xxxxxxxx
_____________________________________
Xx X. Xxxxxxxx as Trustee of the
Xx X. Xxxxxxxx Separate Property Trust
created by Declaration of Trust
dated 8/18/87
_____________________________________
______________Harrison
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143
_____________________________________
A.S. Xxxxxxxx
_____________________________________
A.S. Xxxxxxxx as Trustee of the
A.S. Xxxxxxxx Family Trust created by
Declaration of Trust dated 9/16/87
_____________________________________
Xxxxxx Xxxxxxxx
7
144
EXHIBIT I
LIST OF ACTIONS, CITATIONS & CLAIMS
1. Xxxxxxx Xxxxxxx, et. al. v. Westwood Center Limited Partnership, Los
Angeles Superior Court Case No. SC042844. The Partnership is a co-defendant in a
wrongful death action; the other co-defendant is Monty's Steak House, the tenant
on the 21st floor. The Partnership's insurance carrier, Royal Insurance Company,
has accepted coverage.
2. Xxxxx X. Xxxxxx v. A.S. Xxxxxxxx, Xx X. Xxxxxxxx et al., Los Angeles
Superior Court Case No. BC 105190. This is a malicious prosecution claim that is
currently on appeal by both the plaintiff and the defendants. The Partnership's
insurance carrier, CNA (Transcontinental Insurance Co.) is defending this claim
and has posted the appeal bond under a reservation of rights. Although the
action is against the general partners only, the Partnership has acknowledged
its responsibility and obligation to pay any and all costs, expenses, attorneys'
fees and/or judgments or settlements with regard thereto.
3. The Partnership has received a letter from Xxxxxx & Company in which
Xxxxxx asserted that the Partnership had a contract with it with respect to the
Partnership's real property.
4. The Partnership received a citation dated May 3, 1995 from the City of
Los Angeles Department of Building and Safety for failure to comply with City
ordinances requiring steel weld inspections. A copy of this citation was
previously sent to Brig Xxxx at Arden OP.
5. The Partnership received a citation from the City of Los Angeles
Department of Building and Safety in 1988 for failure to comply with the City's
fire sprinkler retrofit ordinance. The Partnership has completed the required
fire sprinkler retrofit work except for two elevator fire doors, for which an
extension has been obtained. Copies of the citation and related correspondence
with Building and Safety were previously sent to Brig Xxxx.
6. Xxxxx Xxxxxx v. Westwood Center, Los Angeles Superior Court Case No.
SC042854. The plaintiff, Xxxxx Xxxxxx, claims that while on guard duty, he
slipped and fell in a stairwell. The Partnership's insurance carrier, Royal
Insurance Company, has accepted coverage.
7. A claim asserted by Xxxxx Xxxxxxxx that while walking across a
"concrete pad" on the property, he tripped and fell. The Partnership's insurance
carrier, Royal Insurance Company, has accepted coverage.
8. A claim by Xxxxxxxx Xxxxxx that she slipped on a mat while leaving the
building on a rainy day. The Partnership's insurance carrier, Royal Insurance
Company, has accepted coverage.
145
EXHIBIT J
OPEN TAX MATTERS
1. The Partnership continues to receive xxxxxxxx from the Employment
Development Department ("EDD") for employment taxes that were discharged in the
Partnership's bankruptcy. The original amount of the employment taxes in
question is less than $1,000. The Partnership continues to receive these
xxxxxxxx even though the Partnership's bankruptcy counsel has repeatedly written
to EDD informing it that the taxes in question were discharged in bankruptcy.
146
EXHIBIT K
OFFSITE PARKING RIGHTS
1. Those items set forth in the Preliminary Title Report.
2. Lease dated October 29, 1994 between Xxxxxxxx Properties, a Limited
Partnership and Xxxxx Xxxxx, an individual dba Euro Hair Systems, which was
amended pursuant to an Amendment of Lease dated May 19, 1995 between the same
parties. The lease terminates on May 31, 2000 with on five (5) year option to
renew. The lease provides for five (5) free monthly spaces and 30 minutes free
customer parking at 1100 Xxxxxxx. Tenant must pay for the yearly rental cost of
a validation machine.
3. Lease dated June 21, 1994 between Xxxxxxxx Properties, a Limited
Partnership and "Xxxxxx & Xxxxxx, Inc., A California corporation dba Xxxxxx &
Co. Jewellers" [sic]. The lease terminates December 31, 1999 with no option to
renew. The lease provides for two (2) monthly unreserved parking spaces at 1100
Xxxxxxx at no charge.
4. Lease dated July 27, 1983 between Xxxxxxxx Properties and Hamburger
Hamlets, Inc., which was assigned to Xxxxxxx and Xxxxx Xxxxx, LLC, a California
limited liability company pursuant to a Consent to Assignment and Amendment to
Lease between Xxxxxxxx Properties and Xxxxxxx and Xxxxx Xxxxx, LLC, dated "as of
this _____ day of May, 1995 (the Effective Date)". The lease terminates December
31, 2003 with two five (5) year options and one ten (10) year option to renew.
The lease provides for twenty customers at 1100 Xxxxxxx. There is also a parking
covenant for three (3) spaces at 1100 Xxxxxxx.
147
EXHIBIT L
GENERAL RELEASE
148
R E L E A S E
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
Westwood Center, a California Limited Partnership, (hereinafter referred to as
"Partnership") does hereby forever release, discharge, and acquit Xx X.
Xxxxxxxx, individually, Xx X. Xxxxxxxx as Trustee of the Xx X. Xxxxxxxx Separate
Property Trust created by Declaration of Trust dated August 18, 1987, and A. S.
Xxxxxxxx, individually, and A. S. Xxxxxxxx as Trustee of the A. S. Xxxxxxxx
Family Trust created by Declaration of Trust dated September 16, 1987
(hereinafter "Released Parties") from any and all actions, causes of action,
obligations, costs, damages, losses, claims, liabilities, and demands of
whatsoever character to the date hereof, exclusive, however, of the Released
Parties' obligations under Sections 8(b), 8(c), 13(a) and 15(g) of the Agreement
to Contribute and Escrow Instructions dated September 26, 1997, between the
Partnership and Arden Realty Limited Partnership to the extent such obligations
run in favor of the Partnership (the "Excluded Obligations"):
This Release includes but is not limited to any and all claims of
whatsoever character dealing with or having to do with the Released Parties
acting as general partners of the Partnership or representing the Partnership in
any manner whatsoever, including as an agent, attorney, or otherwise, but does
not include claims with respect to the Excluded Obligations.
It is further understood and agreed that this Release extends to all
claims of every nature and kind whatsoever, other than claims with respect to
the Excluded Obligations; there is hereby expressly released all rights under
Section 1542 of the California Civil Code which provides as follows:
"A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of executing
the release, which if known by him, must have materially affected his
settlement with the debtor."
The undersigned understand and agree that the giving or acceptance of
this Release and the agreements contained herein shall not constitute or be
construed as an admission of any liability whatsoever by the parties hereto, or
the admission of the validity of any claims made by or against any party hereto
or any of them, it being the purpose of this Release to settle disputed claims
and not to admit liability.
Each of the persons executing this Release on behalf of a party hereto
warrants and represents that said person is duly authorized to execute such
Release on behalf of such party.
XXXXXX & XXXXXXXXX
ATTORNEYS AT LAW
LOS ANGELES, CALIFORNIA
149
Each party hereto represents and warrants that said party has not
heretofore assigned or transferred, or purported to assign or transfer, to any
person, firm, or corporation whomsoever any claim, debt, liability, demand,
obligation, cost, expense, action or cause of action herein released.
The undersigned further agree that this Release shall be binding upon
their successors and assigns and shall inure to the benefit of the officers,
spouses, servants, agents, attorneys, employees, subsidiaries, and connected
corporations of the past or present of the parties hereto.
The undersigned further declare and represent that no promise,
inducement, or agreement not herein expressed has been made to the undersigned,
and that this Release contains the entire agreement between the parties.
This Release may be executed in counterparts, which together shall
constitute a single agreement, and each of which shall be an original for all
purposes.
If any provision of this agreement is unenforceable for any reason, the
remaining provisions shall nevertheless be of full force and effect.
In the event of any dispute between the parties hereto arising out of
the subject matter of this agreement, the prevailing party in any such dispute,
in addition to all other remedies, shall be entitled to reasonable attorneys'
fees.
Executed as of November_________, 1997.
WESTWOOD CENTER,
a California corporation
BY ITS GENERAL PARTNERS:
________________________________________
XX X. XXXXXXXX, Individually
________________________________________
XX X. XXXXXXXX, Trustee of the Xx X.
Xxxxxxxx Separate Property Trust
Created by Declaration of Trust dated
8/18/97
________________________________________
A.S. XXXXXXXX, Individually
-2-
150
________________________________________
A.S. XXXXXXXX, Trustee of the A. S.
Xxxxxxxx Family Trust Created by
Declaration of Trust dated 9/16/97
-3-
151
EXHIBIT M
PARKING RIGHTS AGREEMENT
This Parking Rights Agreement ("Agreement") is made and effective as of
the 2nd day of September 1997 by and between WESTWOOD CENTER, a California
limited partnership ("Westwood") and XXXXXXXX PROPERTIES, a California limited
partnership ("Xxxxxxxx") with respect to the following:
RECITALS
A. Westwood is the owner of a high rise commercial office building and
parking facility ("Parking Garage") located at 0000 Xxxxxxx Xxxxxx, Xxx Xxxxxxx,
Xxxxxxxxxx 00000 (collectively, the "Property") which Property is more
particularly described on Exhibit "A" hereto.
X. Xxxxxxxx is the owner of several commercial buildings located at 1127
through 0000 Xxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000 ("Xxxxxxxx
Properties") which are more particularly described on
Exhibit "B" attached hereto.
X. Xxxxxxxx Properties has insufficient on-site parking to satisfy the
zoning and other governmental requirements necessary to occupy, lease, operate,
and maintain certificates of occupancy for commercial and retail uses.
D. Prior to the date hereof, Westwood entered into a covenant with the
City of Los Angeles ("City") to provide three (3) off-site parking spaces in
favor of 0000 Xxxxxxx Xxxxxx; namely, a Covenant and Agreement Regarding
Maintenance of Off-Street Parking Space dated February 14, 1985 and recorded on
April 26, 1985 as Instrument Nos. 85-472679 and 85-472680 for Xxxxxxxx
Properties ("Covenant").
E. In addition to the Covenant, however, Xxxxxxxx, independently, has
entered into leases with tenants of portions of the Xxxxxxxx Properties agreeing
to provide off-site employee and patron parking in the Parking Garage. Westwood
has never been a party to any of these leases or other parking agreements, but
has, nevertheless, made a good faith attempt to honor these Xxxxxxxx
commitments.
F. Westwood and Xxxxxxxx now desire to memorialize an agreement relative
to the off-site parking rights (both covenanted and leased) emanating from the
Xxxxxxxx Properties and affecting the Parking Garage and the Property.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
promises, covenants and agreements set forth herein and other good and valuable
consideration, the
152
receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. CHARACTER OF PARKING RIGHTS. Subject to the qualifications and
limitations hereinafter expressed, Westwood hereby grants Xxxxxxxx the license
and right to use the Parking Garage for unreserved monthly, daily and transient
automobile parking in the locations, at the rates and subject to the rules and
regulations designated by Westwood or its Parking Garage operator, from time to
time, subject, however, to the limitations on maximum number of parking spaces
and parking rates hereinafter set forth ("Parking Rights"). The obligations of
Westwood set forth herein are for the benefit of Xxxxxxxx and shall not create
personal obligations on Westwood which survive Westwood's ownership of any
interest in the Property. The rights granted or acknowledged hereby shall, to
the extent not previously covenanted to the City, constitute a license, subject
to the terms and conditions of this Agreement, shall be binding on Westwood and
all successive owners, encumbrances, parking lot operators and other parties
having an interest in the Parking Garage and/or the Property only during such
party's respective ownership thereof and only for so long as the Property is
continuing to operate as a commercial office building. The benefits of such
license shall be personal to Xxxxxxxx and its successors in ownership to the
Xxxxxxxx Properties and shall not be further burdened by any subdivision or
separation thereof nor assignable or otherwise alienable separate and apart from
the Xxxxxxxx Properties.
1.1 COVENANTED PARKING RIGHTS. Westwood acknowledges that it has
previously established a covenant with the City to provide three (3) off site
parking spaces for one of the Xxxxxxxx Properties; namely 0000 Xxxxxxx Xxxxxx
("Covenanted Rights"). The Covenanted Rights are covenants running with the
Property and are independent of the license and rights being granted by this
Agreement but shall be counted with such rights for determining the Maximum
Parking Rights, as hereinafter defined.
1.2 ADDITIONAL PARKING RIGHTS. In addition to the Covenanted Rights,
Westwood hereby acknowledges, grants and licenses additional Parking Rights in
favor of Xxxxxxxx and appurtenant to the Xxxxxxxx Properties to park up to an
additional forty-seven (47) automobiles, subject to the availability of
nonreserved parking spaces at the Parking Garage and the provisions to Paragraph
6.7 below ("Additional Rights"), at any one time on any one day on a nonreserved
space basis during the hours that the Parking Garage is open for automobile
parking.
1.3 MAXIMUM PARKING RIGHTS. The sum of the Covenanted Rights and the
Additional Rights which at the present time constitute fifty (50) parking spaces
is the Maximum Parking Rights acknowledged, granted and licensed by
153
Westwood, as the case may be, for Xxxxxxxx Properties. The Maximum Parking
Rights is subject to temporary or permanent reduction because of casualty or
condemnation at the Property, Force Majeure as defined in Paragraph 10 below,
cessation of parking because of temporary renovation of the Parking Garage or
the Property, or the provisions set forth in Paragraph 6.7 below.
1.4 EXCESS CAPACITY RIGHTS. At any time and from time to time that
the Parking Garage has parking capacity to allow for transient parking in excess
of the Maximum Parking Rights, the guests, invitees, customers and patrons of
the tenants of Xxxxxxxx at Xxxxxxxx Properties shall have the right together
with and subject to the limitations upon all other members of the public at
large to park in the Parking Garage.
2. TERM. The term of the Parking Rights, is as follows:
2.1 COVENANTED PARKING RIGHTS. The term of the Covenanted Parking
Rights shall run in accordance with such Covenant or until the City agrees to
release the Property from the Covenant; provided, however, Westwood shall have
the right to transfer such Covenanted Parking Rights on a temporary or permanent
basis to another property within the Westwood area which is acceptable to the
City.
2.2 ADDITIONAL PARKING RIGHTS. The term of the Additional Parking
Rights shall run, subject to the other limitations and qualifications contained
in this Agreement, until (a) it is no longer needed by Xxxxxxxx or its
successors in interest with respect to Xxxxxxxx Properties, (b) the Xxxxxxxx
Lease to the Hamlet Gardens expires or (c) the Property is no longer operated as
a commercial office building; provided, however, Westwood shall have the right
to transfer such Additional Parking Rights on a temporary or permanent basis to
another location within the Westwood area.
2.3 EXCESS CAPACITY RIGHTS. The term of the Excess Capacity Rights
shall run, subject to the other limitations and qualifications contained in this
Agreement, until (a) it is no longer needed by Xxxxxxxx or its
successors-in-interest with respect to the Xxxxxxxx Properties, (b) the Property
is no longer operated as a commercial office building or (c) the Parking Garage
no longer has the capacity for off-site transient parking in addition to its
other existing commitments for covenanted parking for third parties or off-site
shared parking.
3. PARKING FEES AND CHARGES. Westwood shall be entitled to charge and
Xxxxxxxx and/or its tenants and their respective employees, agents and patrons
shall be obligated to pay for the Parking Rights set forth herein, as follows:
154
3.1 EXCESS PARKING RIGHTS. All Excess Parking Rights shall be
charged at the regular, recurring, standard transient parking rates being
charged from time to time by the Parking Garage.
3.2 ADDITIONAL PARKING RIGHTS. All Additional Parking rights shall
be charged at the regular, recurring, standard parking rates (monthly, daily or
transient, as the case may be) being charged from time to time by the Parking
Garage; provided, however, that neither Xxxxxxxx nor its tenants or their
respective employees, agents or patrons shall be charged for such parking in
excess of the amount allowed to be charged pursuant to the presently existing
terms of the presently existing (but not future) leases with each present tenant
of Xxxxxxxx.
3.3 COVENANTED PARKING RIGHTS. Except to the extent limited by the
provisions of Section 3.2 above, all Covenanted Parking Rights shall be charged
at the regular, recurring, standard parking rates (monthly, daily or transient,
as the case may be) being charged, from time to time, by the Parking Garage.
4. REGULATION OF USAGE OF PARKING SPACES. Westwood shall endeavor to cause
the Parking Garage to be operated in a manner to ensure that the Xxxxxxxx
Properties shall be entitled to use, subject to any charges, the Maximum Parking
Rights. In addition, all parking in the Property shall be in accordance with
such reasonable and uniformly applicable rules and regulations as may be
established, from time to time, by Westwood or the operator of the Parking
Garage, consistent with the needs of both the businesses (including, without
limitation, the hours of operations of such businesses) of the Property. A copy
of such rules and regulations shall be delivered by Westwood to Xxxxxxxx and the
tenants of Xxxxxxxx Properties, and copies of any replacements, additions or
modifications to such rules and regulations shall be delivered to Xxxxxxxx and
the tenants of Xxxxxxxx Properties at least three (3) business days prior to the
date upon which such replacements, additions or modifications become effective.
5. REMEDIES IN EVENT OF DEFAULT. Except to the extent a longer cure is
required, in the event that either party shall fail to perform any of its
obligations pursuant to this Agreement, and such default shall continue for a
period of thirty (30) days after delivery of written notice thereof from the
non-defaulting party to the defaulting party (or, with respect to defaults
requiring more than thirty (30) days for a cure, the defaulting party shall not
have commenced the cure within such thirty (30) day period and thereafter
diligently and continuously prosecuted the same to completion), the defaulting
party shall have committed an uncured default under this Agreement. The
non-defaulting party shall be entitled, as its sole remedy for such uncured
default, to maintain an action for specific performance or for damages. Any such
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action shall be brought in the Los Angeles County Superior Court. Under no
circumstances may this Agreement or any rights created pursuant hereto be
unilaterally terminated by action of any party.
6. GENERAL PROVISIONS.
6.1 SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall
constitute, bind and inure to the benefit of all successors, assigns and other
parties now having or obtaining a fee interest in the Property and the Xxxxxxxx
Properties. It is not intended that the rights granted hereunder should benefit
any property other than the Xxxxxxxx Properties, or benefit any persons other
than the owners, tenants, employees, customers, patrons and other users of those
properties. Any person succeeding to fee title to, respectively, the Property or
the Xxxxxxxx Properties, shall automatically, as of the effective date of the
transfer or conveyance, (a) succeed to the rights herein granted to the owner of
such property and (b) except as expressly provided in the Agreement, be deemed
to have assumed the obligations of such owner accruing after such effective
date. No such transfer or conveyance shall be deemed to relieve such transferor
of obligations accruing under this Agreement prior to such transfer or
conveyance; provided, that, following transfer or conveyance of all of its fee
interest in the Property, the transferring owner shall have no further
responsibility for any obligations or liability first arising or accruing under
this Agreement after the date of such transfer. On or before the date either
party transfers any portion of their respective interests in the Property or the
Xxxxxxxx Properties to a third party or parties, the transferring party shall
(i) provide a copy of this Agreement to the transferee, (ii) obtain transferee's
written acknowledgement of receipt of this Agreement and (iii) provide such
acknowledgement of receipt to the non-transferring party herein.
6.2 TIME OF ESSENCE. Time is of the essence with respect to the
performance of every provision of this Agreement in which time of performance is
a factor.
6.3 SEVERABILITY. In the event that any provision of this Agreement
shall be determined by a court of competent jurisdiction to be invalid, void or
illegal, or invalid, void or illegal as applied to any person or circumstance,
the remaining provisions hereof and/or the application of such provision(s) to
any person(s) and/or circumstance(s) other than those as to which it is held to
be invalid, void or illegal, shall nevertheless remain in full force and effect
to the maximum extent permitted by law and not be affected thereby.
6.4 INCORPORATION OF PRIOR AGREEMENTS; AMENDMENT. This Agreement
contains the entire agreement of the parties
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hereto with respect to the subject matter hereof and all preliminary
negotiations, prior agreements (express or implied) or understandings pertaining
to such matters, except those contained herein or therein, shall not be
effective for any purpose. No verbal agreement or implied covenant shall be held
to vary the provisions hereof, any statute, law or custom to the contrary
notwithstanding. No provision of this Agreement may be amended or added to
except by an agreement in writing signed by the parties hereto or their
respective successors in interest.
6.5 NOTICES. Any notice required or permitted to be made or given
hereunder shall be in writing and may be served personally or made by registered
or certified mail, return receipt requested, by overnight express mail, by
federal express or other overnight delivery service, or by facsimile (with a
confirming copy being sent concurrently by any other of the foregoing methods).
If served by mail, federal express or other overnight delivery service, or by
facsimile it shall be addressed to the party to whom directed at its respective
address or facsimile number, as the case may be, set forth below:
To Partnership: Westwood Center
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
To Xxxxxxxx: Xx X. Xxxxxxxx
c/o Musick, Xxxxxx & Xxxxxx
Xxx Xxxxxxxx Xxxxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx, Esq.
Any notice which is personally served or served by overnight service or
facsimile shall be effective upon delivery; any notice given by mail as provided
above shall be deemed effectively given, if deposited in the United States mail,
registered or certified, postage prepaid and addressed as specified above, on
the date of receipt or refusal indicated on the return receipt. Either party may
by written notice to the other from time to time specify a different address for
notice purposes, but no new address shall be effective until at least twenty
(20) days after receipt of notice of the same by the persons to whom such notice
is directed. However, in the event of a postal strike, all notices hereunder
shall be personally served or sent by facsimile, federal express or other
overnight delivery service.
6.6 WAIVERS. No waiver of any provision of this Agreement shall be
deemed to be a waiver of any other provision hereof or of the subsequent
application of the provision as to which such waiver is given or suffered.
Consent to or approval of any act by one of the parties hereto
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shall not be deemed to render unnecessary the obtaining of such party's consent
to or approval of any subsequent act.
6.7 SUBORDINATION. The rights, licenses and privileges granted
herein (except for the Covenanted Parking Rights) shall be and remain subject
and subordinate to the required parking and other rights needed by Westwood and
its successors-in-interest (a) to satisfy any and all requirements of (i) the
certificate of occupancy for the Property and the Parking Garage and (ii) the
designated zoning and any C.U.P. conditions related to the Property and (b) to
ensure continued compliance with all governmental requirements for the operation
of the Property to the effect that the Maximum Parking Rights shall be reduced
or eliminated to the extent necessary to maintain compliance with all
governmental requirements effecting the continued operation of the Property as a
commercial office building.
7. ATTORNEYS' FEES. In any action or reference proceeding by either party
hereto against the other party arising out of, relating to or resulting from the
provisions of this Agreement, the prevailing party in such action shall be
entitled to recover from the other party its costs incurred therein, including
reasonable attorneys' fees, in an amount determined by the Court.
8. CAPTIONS. The captions of the sections of this Agreement are for
convenience only, are not a part of this Agreement and do not in any way limit
or amplify the terms and provisions hereof.
9. GOVERNING LAW. This Agreement shall be construed, interpreted and
applied in accordance with the laws of the State of California.
10. FORCE MAJEURE. Each party shall be excused from performing any of its
respective obligations or undertakings provided in this Agreement, except any of
its respective obligations to pay any sums of money under the applicable
provisions hereof, in the event and for so long as the performance of such
obligations is prevented or delayed by Act of God, fire, earthquake, flood,
explosion, action of the elements, war, invasion, insurrection, riot, mob
violence, sabotage, malicious mischief, inability to procure labor, equipment,
facilities, materials or supplies in the open market, failure of transportation,
condemnation, requisition, laws, order of government or civil or military or
naval authorities or any other cause (excluding financial inability and/or the
inability to obtaining financing), whether similar or dissimilar to the
foregoing, not within the control of the party obligated to perform.
11. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an
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original, but all of which together shall constitute but one and the same
instrument.
12. JUDICIAL REFERENCE. Except with respect to an action for injunctive
relief commenced by a party in order to protect against irreparable injury
hereunder or any failure to timely tender any fees or payments due under this
Agreement, all disputes and claims arising under this Agreement, whether
relating to its interpretation, application, enforcement or breach, shall be
heard by a referee of the Los Angeles Superior Court pursuant to California Code
of Civil Procedure Section 638, et seq. The parties shall have the rights of
discovery and appeal provided by California Code of Civil Procedure Section 638,
et seq. With respect to all judicial reference proceedings under this Agreement,
the parties shall agree upon a single referee who shall try all issues, whether
of fact or law, and report a finding and judgment thereon and issue all legal
and equitable relief appropriate under the circumstances of the controversy
before him or her. If the parties are unable to agree on a referee within ten
(10) days of a written request to do so by either party hereto, either party may
seek to have one appointed pursuant to California Code of Civil Procedure
Section 640. In connection with the foregoing, the parties expressly and
knowingly waive any right to jury trial with respect to any matter subject to
this reference proceeding. Each of the parties hereto hereby agrees that this
Agreement constitutes a written consent to waiver of trial by jury pursuant to
the provisions of California Code of Civil Procedure Section 631 and hereby
authorizes and empowers the other party to file this Agreement with the clerk or
judge of any court of competent jurisdiction as statutory written consent to
waiver of trial by jury. The cost of such proceeding shall initially be borne
equally by the parties, but shall ultimately be borne by the party who does not
prevail. Any referee selected pursuant to this Paragraph shall be considered a
temporary judge appointed pursuant to Article 6, Section 21 of the California
Constitution. The referee shall also award to the prevailing party all costs of
such litigation, including, without limitation, all reasonable attorneys' fees.
13. FURTHER ASSURANCES. As part of the consideration to Westwood for the
grant of the Parking Rights contained herein, Xxxxxxxx for itself and its
successors-in-interest of the Xxxxxxxx Properties and as a condition to the
continuation of the Parking Rights, covenants and agrees for the benefit of
Westwood and the Property that it will aid and support any proposed renovation
and rehabilitation of the Property for commercial and retail uses, execute any
and all required documents and instruments necessary to evidence such support
and to certify the limitations of its Parking Rights and obligations as
contained in this Agreement.
14. INDEMNITY. Xxxxxxxx agrees for itself and its successors-in-interest
of the Xxxxxxxx Properties to protect,
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defend and indemnify and hold Westwood and its successors-in-interest wholly
harmless from and against any and all loss, cost, damage, claim, liability or
expense, including court costs and reasonable attorneys' fees, for third party
claims arising out of or in connection with any the Parking Rights granted
herein and any tort claim based thereon or related thereto (including any
personal injury or property damage or claim of personal injury or property
damage of any kind whatsoever, including death, to property or persons,) unless
caused by the gross negligence or intentional misconduct of Westwood.
IN WITNESS WHEREOF, the parties hereto have executed this Parking Rights
Agreement as of the day and year first above written.
WESTWOOD: WESTWOOD CENTER,
a California limited partnership
By:
-----------------------------------------
A.S. Xxxxxxxx
General Partner
By:
-----------------------------------------
Xx X. Xxxxxxxx
General Partner
XXXXXXXX PROPERTIES: XXXXXXXX PROPERTIES,
a California limited partnership
By:
-----------------------------------------
Xx X. Xxxxxxxx
General Partner
