EXHIBIT 10.30
[EXECUTION VERSION]
________________________________________________________________________________
BUNKER HILL EQUITY, LLC
A Delaware Limited Liability Company
LIMITED LIABILITY COMPANY AGREEMENT
Dated as of March 27, 2002
________________________________________________________________________________
THE LIMITED LIABILITY COMPANY INTERESTS CREATED BY THIS LIMITED LIABILITY
COMPANY AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY OTHER APPLICABLE
SECURITIES LAWS, AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER
THE SECURITIES ACT AND SUCH OTHER APPLICABLE SECURITIES LAWS PURSUANT TO
EFFECTIVE REGISTRATION OR AN EXEMPTION THEREFROM. IN ADDITION, SUCH INTERESTS
MAY NOT BE SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED, IN WHOLE OR IN PART,
EXCEPT AS PROVIDED IN ARTICLE XI OF THIS AGREEMENT. ACCORDINGLY, THE HOLDERS OF
SUCH INTERESTS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE RISKS OF
THEIR RESPECTIVE INVESTMENTS IN SUCH INTERESTS FOR AN INDEFINITE PERIOD OF TIME.
TABLE OF CONTENTS
Page
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ARTICLE 1 DEFINITIONS.................................................................. 3
1.1 Definitions................................................................... 3
1.2 Terms Generally............................................................... 17
ARTICLE 2 ORGANIZATION................................................................. 18
2.1 Formation..................................................................... 18
2.2 The Name...................................................................... 18
2.3 Registered Office; Registered Agent; Principal Office; Other Offices.......... 18
2.4 Purposes...................................................................... 18
2.5 Powers of the Company......................................................... 18
2.6 Foreign Qualification......................................................... 19
2.7 Term.......................................................................... 19
2.8 No State-Law Company.......................................................... 19
ARTICLE 3 MEMBERSHIP INTERESTS......................................................... 19
3.1 Classes of Members............................................................ 19
3.2 Managing Member Interests..................................................... 20
3.3 Members....................................................................... 21
3.4 Representations and Warranties of Members..................................... 21
3.5 Material Actions.............................................................. 22
3.6 Additional Membership Interests; Additional Members........................... 22
ARTICLE 4 MANAGEMENT OF THE COMPANY'S BUSINESS; POWERS AND DUTIES OF THE MEMBERS....... 23
4.1 Management of the Company's Business.......................................... 23
4.2 Appointment of Managing Member................................................ 26
4.3 RECP's Rights Following an Trigger Event and During a Suspension Period....... 26
4.4 Representatives of the Parties................................................ 28
4.5 Property Management/Leasing Services.......................................... 28
4.6 Financial Advisor............................................................. 28
ARTICLE 5 RIGHTS AND DUTIES OF MEMBERS................................................. 29
5.1 Duties and Obligations of the ▇▇▇▇▇▇▇ Members................................. 29
5.2 No Conflicts of Interests..................................................... 29
5.3 Limitations on Member Liability; Indemnification.............................. 32
5.4 Compensation of Members and their Affiliates.................................. 33
5.5 Dealing with Members.......................................................... 33
5.6 Use of Company Property....................................................... 33
5.7 Designation of Tax Matters Member............................................. 33
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5.8 RECP as Lender................................................................ 34
5.9 RECP Exclusivity Period....................................................... 34
5.10 Character of Managing Member's Investment.................................... 35
5.11 ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP......................................................... 36
5.12 Management of Subsidiaries................................................... 36
ARTICLE 6 BOOKS AND RECORDS: ANNUAL REPORTS; EXPENSES AND OTHER MATTERS................ 36
6.1 Books of Account.............................................................. 36
6.2 Availability of Books of Account.............................................. 36
6.3 Annual Reports and Statements; Annual Budgets and Annual Business Plans....... 36
6.4 Accounting Expenses........................................................... 38
6.5 Casualty/Condemnation......................................................... 38
6.6 Litigation.................................................................... 39
6.7 Notice of Trigger Event....................................................... 39
6.8 Conduct of Business........................................................... 39
6.9 Membership Restrictions....................................................... 39
ARTICLE 7 CAPITAL CONTRIBUTIONS........................................................ 40
7.1 Initial Cash Equity Contributions of the Members.............................. 40
7.2 No Obligation................................................................. 40
7.3 Additional Capital Contributions.............................................. 40
7.4 Capital of the Company........................................................ 41
ARTICLE 8 CAPITAL ACCOUNTS............................................................. 41
8.1 Establishment and Determination of Capital Accounts........................... 41
8.2 Negative Capital Accounts..................................................... 42
8.3 Company Capital............................................................... 42
ARTICLE 9 ALLOCATIONS.................................................................. 42
9.1 Allocations of Income and Loss................................................ 42
9.2 Regulatory Allocations........................................................ 43
9.3 Deficits...................................................................... 43
9.4 Certain Tax Matters........................................................... 43
9.5 Special Allocations........................................................... 43
9.6 Excess Nonrecourse Liabilities................................................ 45
ARTICLE 10 DISTRIBUTIONS............................................................... 45
10.1 Distributions of Available Cash............................................ 45
10.2 Sale and Refinancing Proceeds.............................................. 45
10.3 Distribution of Sale, Disposition or Refinancing Proceeds.................. 45
10.4 BGHS Note.................................................................. 46
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ARTICLE 11 TRANSFER OF MEMBER INTERESTS................................................ 46
11.1 Restrictions on Transfers by ▇▇▇▇▇▇▇ Members............................... 46
11.2 Transfers by RECP.......................................................... 47
11.3 Assignment Binding on Company.............................................. 47
11.4 Limitation on Distributions................................................ 48
11.5 Bankruptcy of a Member..................................................... 48
11.6 Substituted Members........................................................ 48
11.7 Acceptance of Prior Acts................................................... 48
11.8 Additional Limitations..................................................... 48
11.9 Waiver of Withdrawal and Fair Value........................................ 49
ARTICLE 12 DISSOLUTION OF THE COMPANY; WINDING UP AND DISTRIBUTION OF ASSETS........... 49
12.1 Dissolution................................................................ 49
12.2 Winding Up................................................................. 50
12.3 Distribution of Assets..................................................... 50
ARTICLE 13 AMENDMENTS.................................................................. 51
13.1 Amendments................................................................. 51
13.2 Additional Members......................................................... 51
ARTICLE 14 MISCELLANEOUS............................................................... 51
14.1 Further Assurances......................................................... 51
14.2 Notices.................................................................... 51
14.3 Headings and Captions...................................................... 52
14.4 Variance of Pronouns....................................................... 52
14.5 Counterparts............................................................... 52
14.6 Governing Law.............................................................. 52
14.7 Consent to Jurisdiction.................................................... 52
14.8 Partition.................................................................. 52
14.9 Validity................................................................... 53
14.10 Successors and Assigns..................................................... 53
14.11 Entire Agreement........................................................... 53
14.12 Waivers.................................................................... 53
14.13 No Brokers................................................................. 53
14.14 Maintenance as a Separate Entity........................................... 53
14.15 Confidentiality............................................................ 53
14.16 In the event that a Member receives a request to disclose any Confidential
Information under a subpoena or order, such Member shall (i) promptly notify
the other Members thereof, (ii) consult with the other Members on the
advisability of taking steps to resist or narrow such request and (iii) if
disclosure is required or deemed advisable, cooperate with each other
Member in any attempt it may make to obtain an order or other assurance
that confidential treatment will be accorded the Confidential Information
that is disclosed.......................................................... 54
14.17 No Third Party Beneficiaries............................................... 54
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14.18 Construction of Documents.................................................. 54
14.19 Time is of the Essence..................................................... 54
14.20 Modification to Structure.................................................. 54
14.21 Waiver of Jury Trial....................................................... 55
14.22 Recalculation of Interest/Returns.......................................... 55
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LIST OF EXHIBITS
A. Consulting Agreement
B. Contribution Agreement
C. Environmental Indemnity Agreement
D. Indemnity Agreement
E. Joinder Agreement
F. Leasing Agreement
G. Option Agreement
H. Description of Property
I. Property Management Agreement
LIST OF SCHEDULES
3.3 Membership Interests, Capital Contributions, Percentage Interests
4.4(a) Representatives of the ▇▇▇▇▇▇▇ Members
4.4(b) Representatives of RECP
6.3(a) Financial and Operating Information
6.3(b) Approved Budget and Approved Business Plan for the Remainder of 2002
Budget Year
6.8 Company Covenants and Restrictions
6.9 ▇▇▇▇▇▇▇ Member Covenants and Restrictions
14.13 Fees Owed to Secured Capital Corp.
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LIMITED LIABILITY COMPANY AGREEMENT of Bunker Hill Equity, LLC, a Delaware
limited liability company (the "Company"), dated and effective as of March 27,
2002, by and among ▇▇▇▇▇▇▇ Partners-Hope Place, Ltd., a California limited
partnership ("MP"), ▇▇▇▇▇▇▇ Partners BGHS, LLC, a California limited liability
company ("BGHS" and together with MP, in their capacity as members of the
Company, the "▇▇▇▇▇▇▇ Members"), RECP Library LLC, a Delaware limited liability
company (together with its successors and assigns, "RECP") and ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
(the "Special Member"). Any reference in this Agreement to MP, BGHS or RECP
shall include such Members' successors to the extent such successors have
become Substituted Members in accordance with the provisions of this Agreement.
Pursuant to Section 18-201(d) of the Act, the Agreement shall be effective as
of March 27, 2002.
WITNESSETH:
WHEREAS, the Company was formed by the filing of a Certificate of
Formation with the Secretary of the State of Delaware on March 13, 2002;
WHEREAS, MP and Delacourt Properties, Inc. were the owners of all of the
equity interests of Library Square, Ltd., a California limited liability
company (the "Prior Company");
WHEREAS, BGHS acquired all of the equity interests of Delacourt
Properties, Inc. in the Prior Company (the "Delacourt Buy-Out");
WHEREAS, the Prior Company owned 100% of the equity interests of the
Property Owner;
WHEREAS, after the Delacourt Buy-Out, the Prior Company contributed all of
its assets (including, without limitation, 100% of the equity interests of the
Property Owner) to the Junior Mezzanine Borrower, in consideration for 100% of
the equity interests of the Junior Mezzanine Borrower (the "Prior Company
Contribution");
WHEREAS, immediately after the Prior Company Contribution, the Junior
Mezzanine Borrower contributed all of its assets (including, without
limitation, 100% of the equity interests of the Property Owner) to the Senior
Mezzanine Borrower, in consideration for 100% of the equity interests of the
Senior Mezzanine Borrower (the "Junior Mezzanine Contribution");
WHEREAS, immediately after the Junior Mezzanine Contribution, the Prior
Company distribution all of its assets (including, without limitation, 100% of
the equity interests of the Junior Mezzanine Borrower) to the ▇▇▇▇▇▇▇ Members
(the "Prior Company Distribution");
WHEREAS, immediately after the Prior Company Distribution, the ▇▇▇▇▇▇▇
Members contributed to the Company 100% of the equity interests of the Junior
Mezzanine Borrower that they received as a result of the Prior Company
Distribution, in the consideration for the limited liability company interests
in the Company as described on Schedule 3.3 herein (the "▇▇▇▇▇▇▇ Members
Contribution");
WHEREAS, simultaneously with the ▇▇▇▇▇▇▇ Members Contribution, the Special
Member was admitted as a member of the Company without any economic interest in
the Company;
WHEREAS, immediately after the ▇▇▇▇▇▇▇ Members Contribution, (i) the
Senior Mezzanine Lender made the Senior Mezzanine Loan to the Senior Mezzanine
Borrower; (ii) the Junior Mezzanine Lender made the Junior Mezzanine Loan to
the Junior Mezzanine Borrower; and (iii) RECP contributed, pursuant to the
Contribution Agreement, $60,000,000 to the Company as an investment in the
Company in consideration for the Managing Member Interests; and
WHEREAS, simultaneously with the receipt of the $59,561,000 Senior
Mezzanine Loan by Senior Mezzanine Borrower, Senior Mezzanine Borrower set
aside and contributed certain reserves for the benefit of Property Owner, and
paid loan origination fees and fees in connection with obtaining the consent of
the holder of the Existing Mortgage Debt. The net proceeds were then
distributed to its sole member, Junior Mezzanine Borrower.
WHEREAS, simultaneously with the receipt of the $50,000,000 Junior
Mezzanine Loan, Junior Mezzanine Borrower paid its loan origination fee, and the
net proceeds therefrom, together with the net proceeds received from the Senior
Mezzanine Borrower, were then distributed to the Company.
WHEREAS, immediately after the receipt of the RECP $60,000,000
contribution of equity, the Company paid an Equity Placement Fee to RECP and
transaction costs, including lender fees, legal fees, transfer taxes, costs of
the interest rate cap and miscellaneous costs.
WHEREAS, immediately following the foregoing distribution from Junior
Mezzanine Borrower and the equity contribution by RECP, and simultaneously with
the execution and delivery of this Agreement, the Company is making a
distribution to BGHS as a distribution with respect to its interest in the
Company and is loaning BGHS the sum of $34,789,555 in return for the BGHS Note
payable to the Company for the amount of such loan.
WHEREAS, following the receipt of the funds by BGHS, BGHS used
$111,725,000 (net of costs and expenses) of such funds to fund the Delacourt
Buy-Out.
WHEREAS, MP, BGHS, RECP and the Special Member wish to enter into this
Agreement in order to set forth their binding agreement as to the affairs of
the Company, the conduct of its business and certain rights with respect of the
relationship among the parties hereto.
These recitals are material to the understandings and agreements of the
parties hereto and are hereby integrated into and form a material part of the
terms of the Agreement.
NOW THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, MP, BGHS and RECP and
the Special Member hereby agree as follows:
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ARTICLE 1
DEFINITIONS
1.1 Definitions. As used in this Agreement, the following terms shall have
the meanings set forth below, which meanings shall be applicable equally to the
singular and plural of the terms defined:
"Act" means the Delaware Limited Liability Company Act (6 Del.C. ss.
18-101, et seq.), as amended from time to time, or any successor statute
thereto.
"Additional Capital Contribution" means, any ▇▇▇▇▇▇▇ Member Additional
Capital Contribution and any RECP Additional Capital Contribution.
"Additional Member" has the meaning set forth in Section 3.6(b).
"Additional Membership Interests" has the meaning set forth in Section
3.6(a).
"Adjusted Capital Account" means, with respect to any Member, its Capital
Account as of the end of the relevant year, as adjusted by (i) crediting to such
Capital Account any amount that such Member is obligated to restore or is deemed
obligated to restore pursuant to Regulation Section 1.704-2(g)(1) and
1.704-2(i)(5); and (ii) debiting from such Capital Account items described in
Regulation Section 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5) and
1.704-1(b)(2)(ii)(d)(6). This definition of Adjusted Capital Account is intended
to comply with the provisions of Regulation Section 1.704-1(b)(2)(ii)(d) and
shall be interpreted consistently therewith.
"Affiliate" means, with respect to any Person, (i) any other Person that
directly or indirectly through one or more intermediaries Controls or is
Controlled by or is under common Control with such Person, (ii) any other Person
owning or Controlling 5% or more of the outstanding voting securities of, or
other ownership interests in, such Person, if such Person is a publicly traded
entity, or 25% or more of the outstanding voting securities of, or other
ownership interests in, such Person if such Person is privately held, (iii) any
officer, director, member, manager, general partner or limited partner with
significant management or veto rights of such Person and (iv) if such Person is
an officer, director, trustee member or partner, any other entity for which such
Person is an officer, director, trustee, member or partner, any other entity for
which such Person acts in any such capacity; provided, however, that ▇▇▇▇▇▇▇,
the ▇▇▇▇▇▇▇ Members and their respective Affiliates shall not be considered to
be Affiliates of RECP and its Affiliates.
"Agreement" means this Limited Liability Company Agreement of the Company,
as it may hereafter be amended, supplemented or otherwise modified from time to
time.
"Annual Budget" means the annual budget for the Company (which shall
include both an operating budget, a capital expenditure budget and the Approved
Leasing Guidelines) prepared by the Property Manager and approved by RECP
pursuant to Section 6.3 or as otherwise adopted pursuant to Section 6.3.
"Annual Business Plan" means, with respect to any Budget Year, a strategic
business plan for that year.
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"Approved Budget" means, with respect to any Budget Year, the Annual Budget
approved by RECP for that Budget Year.
"Approved Business Plan" means, with respect to any Budget Year, the Annual
Business Plan approved by RECP for that Budget Year.
"Approved Leasing Guidelines" means the leasing guidelines that shall be
part of the Approved Business Plan, as the same may be modified from time to
time.
"Assignee" means any Person to whom a limited liability company interest in
the Company has been Transferred in a Transfer expressly permitted hereunder and
who has not been admitted as a Substituted Member.
"Available Cash" for any month, quarter, or Fiscal Year or any other period
established by RECP means the positive amount, if any, remaining after
subtracting amounts due for such period with respect to the Existing Mortgage
Debt and the New Subordinated Debt, from the Available Cash Before Debt Service
for such period.
"Available Cash Before Debt Service" for any month, quarter, or Fiscal Year
or any other period established by RECP means the excess, if any, of (A) the sum
of (i) the amount of all cash receipts (other than capital contributions and
proceeds of capital transactions) of the Companies during such month, quarter or
Fiscal Year or such other period established by RECP, from or in connection with
the Property, including rents and any other payments by tenants and any payments
made by any vendors, suppliers or other persons seeking access to the Property
or its occupants and (ii) any working capital of the Companies existing at the
start of such month, quarter or Fiscal Year or any other period established by
RECP, less (B) the sum of (i) all cash amounts payable in such month, quarter or
Fiscal Year or any other period established by RECP on account of expenses and
capital expenditures (including without limitation, leasing commissions and
tenant improvements costs) in each case incurred by the Property Owner or any of
the other Companies as approved by RECP (including, without limitation, expenses
incurred in connection with the Property, general operating expenses, fees due
and payable under the Property Management Agreement, insurance premiums, taxes,
amortization or interest on any debt of the Companies) and (ii) reserves of
amounts required for the working capital, capital expenditures, the Existing
Mortgage Debt and the New Subordinated Debt and future needs of the Companies,
and as otherwise set forth in the Company's Approved Budget, which shall include
the Property Reserves, as determined by RECP.
"Bankruptcy" means, with respect to the affected party, (i) the entry of an
order for relief under the Bankruptcy Code, (ii) the admission by such party of
its inability to pay its debts as they mature, (iii) the making by it of an
assignment for the benefit of creditors, (iv) the filing by it of a petition in
bankruptcy or a petition for relief under the Bankruptcy Code or any other
applicable federal or state bankruptcy or insolvency statute or any similar law,
(v) the application by such party for the appointment of a receiver for the
assets of such party, (vi) the filing of an involuntary petition seeking
liquidation, reorganization, arrangement or readjustment of its debts or any
other similar relief under the Bankruptcy Code or any other federal or state
insolvency law or (vii) the imposition of a judicial or statutory lien on all or
a substantial part of its assets. With respect to a Member, the foregoing
definition of
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"Bankruptcy" is intended to replace and shall supersede and replace the
definition of "Bankruptcy" set forth in Sections 18-101(1) and 18-304 of the
Act.
"Bankruptcy Code" means Title 11 of the United States Code, as amended.
"BGHS" has the meaning set forth in the introductory paragraph hereof.
"BGHS Guaranty" means that certain Guaranty, dated as of the Effective
Date, from BGHS to the lenders of the New Subordinated Debt.
"BGHS Note" means that certain Promissory Note in the original principal
amount of $34,789,555 dated as of the Effective Date, from BGHS to the Company.
"Book Value" means, with respect to any Company Asset, its adjusted basis
for federal income tax purposes, except that the initial Book Value of any asset
contributed by a Member to the Company shall be an amount equal to the agreed
gross fair market value of such asset, and such Book Value shall thereafter be
adjusted in a manner consistent with Treasury Regulations Section
1.704-l(b)(2)(iv)(g) for revaluations pursuant to Section 8.1(c) and for the
Depreciation taken into account with respect to such asset.
"Budget Year" means the period beginning on the Effective Date and ending
on December 31, 2002; and, with respect to the Fiscal Year 2003 or any Fiscal
Year thereafter, "Budget Year" means the period beginning on January 1 and
ending on December 31 of such year.
"Business Day" means, any day other than (i) a Saturday or Sunday and (ii)
a day on which federally insured depositary institutions in the State of New
York are authorized or obligated by law, governmental decree or executive order
to be closed.
"Call Option" has the meaning set forth in the Option Agreement.
"Capital Account" when used in respect of any Member means the Capital
Account maintained for such Member in accordance with Section 8.1, as said
Capital Account may be increased or decreased from time to time pursuant to the
terms of Section 8.1.
"Capital Contribution" when used with respect to any Member means the
aggregate amount of capital contributed (including any amounts deemed
contributed) to the Company by such Member in accordance with Article 7 or as
otherwise expressly provided herein.
"Casualty" means any fire, explosion, flood, collapse or other casualty
affecting all or any portion of the Property.
"Certificate of Formation" means the Certificate of Formation of the
Company filed with the Secretary of State of the State of Delaware on March 13,
2002, as the same may hereafter be amended and/or restated from time to time.
"Code" means the Internal Revenue Code of 1986, as amended, and the
regulations promulgated thereunder, or any corresponding provision(s) of
succeeding law and/or regulation.
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"Companies" means, collectively, the Company, the Senior Mezzanine Debt
Borrower, the Junior Mezzanine Debt Borrower, the Property Owner, and any other
Subsidiary owned, directly or indirectly, by any such entities.
"Company" means Bunker Hill Equity, LLC, a Delaware limited liability
company, as that limited liability company from time to time hereafter may be
constituted, and any predecessor entity, provided, however, the Prior Company
shall not be deemed a predecessor entity.
"Company Assets" means all right, title and interest of the Company in and
to all or any portion of the assets of the Company and any property (real,
personal, tangible or intangible) or estate acquired in exchange therefor or in
connection therewith.
"Condemnation" means any taking or voluntary conveyance during the term
hereof of all or any part of the Property or any interest therein or right
accruing thereto or use thereof, as the result of, or in settlement of, any
condemnation or other eminent domain proceeding by any Governmental Authority,
whether or not the same shall actually have been commenced.
"Confidential Information" has the meaning set forth in Section 14.15.
"Consulting Agreement" means the Consulting Agreement, dated as of the
Effective Date, by and between the Property Owner and RECP, in the form of
Exhibit A, hereto.
"Contribution Agreement" means the Contribution Agreement dated as of the
Effective Date between the Company, the ▇▇▇▇▇▇▇ Members and RECP, in the form of
Exhibit B hereto.
"Control", when used with respect to any Person, means the power to direct
the management and policies of such Person, directly or through one or more
intermediaries, whether through the ownership of voting securities, by contract
or otherwise, and the terms "Controlling" and "Controlled" have meanings
correlative to the foregoing.
"CSFB" has the meaning set forth in Section 4.6.
"Day-to-Day Management Obligations" has the meaning set forth in Section
4.1(b).
"Delacourt Buy-Out" has the meaning set forth in the Recitals.
"Depreciation" means, with respect to any Company Asset in any Fiscal Year,
all non-cash deductions allowable under the Code, including all deductions
attributable to depreciation or cost recovery with respect to such assets,
including any improvements made thereto and any tangible personal property
located therein, or amortization of the cost of any intangible property or other
assets acquired by the Company, which have a useful life exceeding one year;
provided, however, that with respect to any Company Asset the tax basis of which
differs from its Book Value, Depreciation shall be an amount which bears the
same ratio to such Book Value as the depreciation, amortization or other cost
recovery deduction for such period with respect to such asset for federal income
tax purposes bears to its adjusted tax basis as of the beginning of such Fiscal
Year; provided, however, that if the federal income tax depreciation,
amortization or other cost recovery deduction for such Fiscal Year is zero,
Depreciation shall be determined using any reasonable method by RECP.
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"Designated Courts" has the meaning set forth in Section 14.7.
"Effective Date" means the effective date of this Agreement as set forth in
the introductory paragraph hereto.
"Environmental Indemnity Agreement" means the Environmental Indemnity
Agreement, dated as of the Effective Date, from the ▇▇▇▇▇▇▇ Members, ▇▇▇▇▇▇▇ and
the Company to and for the benefit of RECP and the other beneficiaries named
therein, in the form of Exhibit C attached hereto.
"Entity Guarantor" has the meaning ascribed to such term in the New
Subordinated Debt documents.
"Equity Members" means the ▇▇▇▇▇▇▇ Members and RECP in their capacity as
members of the Company.
"Equity Placement Fee" means a fee, payable to RECP on the Effective Date,
equal to $560,000.
"Equity Reserve" means an amount equal to $4,000,000.
"Event of Acceleration" under any agreement shall mean the occurrence of
any event and the passage of a time period, if any, that entitles any party to
accelerate any obligation, payment or other liability of any of the Companies.
"Event of Default" with respect to any agreement shall have the meaning
ascribed to such term in such agreement and in addition any event under any
agreement that entitles any party to terminate such agreement or other
"cross-defaulted" agreements or to demand or accelerate all payments or to
exercise any remedies under such agreement.
"Existing Mortgage Debt" means the mortgage indebtedness in the original
principal amount of $200,000,000 secured by the Property as set forth in a Loan
Agreement dated January 16, 1998 between GMAC Commercial Mortgage Corporation, a
California corporation as lender and the Property Owner.
"Extension Notice" has the meaning set forth in the Option Agreement.
"Fiscal Year" means the fiscal year of the Company, which shall be the
calendar year (other than with respect to 2002 for which it shall mean the
period of time commencing on the Effective Date and ending on December 31,
2002); but upon termination of the Company, "Fiscal Year" shall mean the period
starting on the day following the end of the last preceding Fiscal Year to the
date of such termination.
"Governmental Authority" means any court, board, agency, commission, office
or authority of any nature whatsoever of or for any governmental ▇▇▇▇ (▇▇▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ or otherwise), whether now or hereafter
in existence.
"Indebtedness" means, with respect to any Person, without duplication, (a)
all indebtedness of such Person for borrowed money, (b) all indebtedness of such
Person for the deferred purchase price of property or services, (c) all
obligations of such Person evidenced by
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notes, bonds, debentures or other similar instruments, (d) all indebtedness of
such Person created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such property), (e)
all obligations of such Person under leases which have been or should be, in
accordance with the generally accepted accounting principles in the United
States of America, consistently applied as of the date of the applicable
document ("GAAP"), recorded as capital leases, to the extent required to be so
recorded, (f) all reimbursement, payment or similar obligations of such Person
under acceptance, letter of credit or similar facilities, (g) all completion
guaranties or similar obligations of such Person to the extent that such
obligation is required, in accordance with GAAP, to be reflected as a liability
on such Person's balance sheet, (h) all Indebtedness referred to in clauses (a)
through (g) above guaranteed directly or indirectly by such Person through an
agreement (1) to pay or purchase such Indebtedness, (2) to purchase, sell or
lease (as lessee or lessor) property, or to purchase or sell services,
primarily for the purpose of enabling the debtor to make payment of such
Indebtedness or to assure the holder of such Indebtedness against loss in
respect of such Indebtedness, (3) to supply funds to or in any other manner
invest in the debtor (including any agreement to pay for property or services
irrespective of whether such property is received or such services are
rendered) or (4) otherwise to assure a creditor against loss in respect of such
Indebtedness, in each case under this clause (h), to the extent such obligation
is required, in accordance with GAAP, to be reflected as a liability or such
Person's balance sheet or otherwise disclosed on such Person's balance sheet,
and (i) all Indebtedness referred to in clauses (a) through (g) above secured
by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien upon or in property
(including, without limitation, accounts and contract rights) owned by such
Person, even though such Person has not assumed or become liable for the
payment of such Indebtedness. It is understood and agreed that, if the Company
provides a guaranty with respect to the same obligation, such guaranty, to the
extent it would constitute Indebtedness hereunder, shall only be counted once.
"Indemnity Agreement" means the Indemnity Agreement, dated as of the
Effective Date, from ▇▇▇▇▇▇▇ and the ▇▇▇▇▇▇▇ Members and each other party
thereto, to and for the benefit of RECP and the other beneficiaries named
therein, in the form of Exhibit D attached hereto.
"Interest Rate Cap" has the meaning set forth in the Contribution
Agreement.
"Internal Rate of Return" shall mean, with respect to the RECP Investment,
the discount rate that would equate the net present value of all capital
in-flows relating to a Capital Contribution in respect of the RECP Investment
(whether from operating cash flow or capital transaction proceeds) from such
investment with $0. RECP will be deemed to have received a specified Internal
Rate of Return, with respect to any Capital Contribution in respect of the RECP
Investment when RECP has received a RETURN OF all of such Capital Contribution
plus a cumulative, monthly compounded RETURN ON such Capital Contribution at the
specified rate per annum, calculated commencing on the date such Capital
Contribution was made and compounded monthly to the extent not paid on a current
basis, taking into account the timing and amounts of all previous distributions
by the Company to RECP (but expressly excluding, the Equity Placement Fee which
shall be deducted from and shall reduce the RECP Investment). For purposes of
computing the Internal Rate of Return, (i) all capital in-flows and cash
out-flows will be discounted to present value using monthly measuring periods,
and (ii) any Capital
8
Contribution in respect of the RECP Investment made by RECP shall be deemed
to have been made on the day of the month in which it was contributed and any
distribution of funds received by RECP at any time during a month shall be
deemed to have been received on the day of the month in which it was
distributed. Capital Contributions constituting the RECP Investment are set
forth in the definition of "RECP Investment" below.
"IRS" means the Internal Revenue Service and any successor agency or entity
thereto.
"Joinder Agreement" means that agreement substantially in the form attached
hereto as Exhibit E to be executed by any Person joining the Company as a Member
after the Effective Date, as described in Section 3.3.
"Junior Mezzanine Borrower" means Bunker Hill Junior Mezzanine, LLC, a
Delaware limited liability company that is the sole member of the Senior
Mezzanine Borrower.
"Junior Mezzanine Contribution" has the meaning set forth in the Recitals
hereof.
"Junior Mezzanine Debt" or "Junior Mezzanine Loan" means the junior
mezzanine debt in the original principal amount of $50,000,000 as set forth in
the Junior Mezzanine Loan Agreement, dated as of the Effective Date, between
Junior Mezzanine Borrower as borrower, and Column Financial, Inc., a mezzanine
lender.
"Junior Mezzanine Loan Agreement" means the Agreement, dated as of the date
hereof, between Column Financial, Inc. and the Junior Mezzanine Borrower,
pursuant to which the Junior Mezzanine Loan is provided.
"Junior Mezzanine Lender" means Column Financial, Inc., a Delaware
corporation.
"Knowledge" of the ▇▇▇▇▇▇▇ Members shall mean the knowledge of any of
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III, ▇▇▇▇ Lammas, ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
"Leases" means all existing and future leases, licenses or other occupancy
agreements to which Property Owner is a party or by which Property Owner is
bound, and modifications thereof and supplements thereto, including the Space
Leases and the Major Leases.
"Leasing Agreement" means the Agreement in the form of Exhibit F attached
hereto, dated as of the Effective Date, between the Property Manager and
Property Owner pursuant to which the Property Manager agrees to provide the
Property Owner with certain leasing services for the Property, as the same may
be modified, amended, supplemented or replaced as provided for therein and
herein.
"LIBOR" has the meaning ascribed to such term in the Senior Mezzanine Debt
documents.
"Lien" means any mortgage, deed of trust, lien (statutory or other),
pledge, hypothecation, assignment, preference, priority, security interest, or
any other encumbrance or charge on or affecting the Property or any portion
thereof, or any direct or indirect interest therein (including, without
limitation, any conditional sale or other title retention agreement, any
sale-leaseback, any financing lease having a similar economic effect to any of
the
9
foregoing, the filing of any financing statement or other similar instrument
under the Uniform Commercial Code or any comparable law of any jurisdiction,
domestic or foreign, and mechanics', materialmen's and other similar liens and
encumbrances).
"Loan Documents" means any and all documentation in connection with the
Existing Mortgage Debt and the New Subordinated Debt entered into by the
Companies and any other agreements to be entered into in connection with such
documents and any financing documents in replacement thereof to be entered into
by the Companies in connection with the acquisition and its ownership of the
Property.
"▇▇▇▇▇▇▇" means ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III, a resident of the State of
California.
"▇▇▇▇▇▇▇ Member" has the meaning set forth in the introductory paragraph.
"▇▇▇▇▇▇▇ Member Additional Capital Contribution" means an additional
Capital Contribution by the ▇▇▇▇▇▇▇ Members in the Company, as described in
Section 7.3(a) herein.
"▇▇▇▇▇▇▇ Members Contribution" has the meaning set forth in the Recitals
hereof.
"Major Lease" means any lease (or one or more leases in favor of the same
tenant or Affiliate of such tenant) (i) affecting more than 20,000 rentable
square feet of the Property (taking into consideration expansion rights or if
such rights are proposed to be exercised, rights of first offer or refusal) or
(ii) having a term (including all extension periods) of more that 10 years.
"Management Standard Requirements" has the meaning set forth in Section
4.1(b).
"Managing Member" means, initially, RECP, in its capacity as managing
member of the Company, provided, that if for any reason RECP ceases to exist or
to be the Managing Member, the term "Managing Member" shall thereafter mean
such other Member or Members as RECP (or, if RECP is no longer a Member of the
Company, the ▇▇▇▇▇▇▇ Members) may designate in its sole discretion.
"Managing Member Interests" means the Membership Interests issued to RECP,
having the rights, designations, preferences, limitations and restrictions set
forth in this Agreement.
"Managing Member Return" means, subject to the following sentences, the
greater of: (i) 1.90 times the remainder of the RECP Investment after any
return to RECP of the Equity Reserve, or, if the Call Option is consummated
after September 30, 2002 but on or prior to the first anniversary of the
Effective Date, 1.60 times the remainder of the RECP Investment after any
return to RECP of the Equity Reserve (in each case, the "RECP Multiple"); and
(ii) a 25% Internal Rate of Return. Notwithstanding the foregoing, in the event
the Call Option is consummated on or prior to September 30, 2002, the Managing
Member Return shall equal the sum of: (x) a 25% Internal Rate of Return; and
(y) $5,600,000. At any given time, the amount due as Managing Member Return
shall equal the amount described above less any consulting payments made to
RECP under the Consulting Agreement. To the extent the Managing Member Return
is paid based on the RECP Multiple, it shall be calculated as follows: (A)
first, the remainder of the RECP Investment after any return to RECP of the
Equity Reserve shall be multiplied by the applicable RECP Multiple (either 1.90
or 1.60, as the case may be);
10
and (B) second, the product of the amount determined as set forth in clause
(A) shall be reduced by any amount previously distributed to RECP pursuant to
Article 10 herein (but not 7.4 herein).
"Material Actions" means adopting a decision effecting any of the
following: instituting of proceedings to have the Company be adjudicated
bankrupt or insolvent, consent to the institution of bankruptcy or insolvency
proceedings against the Company or filing a petition seeking, or consenting to,
any reorganization or relief with respect to the Company under any applicable
federal or state law relating to bankruptcy, or consenting to the appointment of
a receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or a substantial part of the Company Assets, or making
any assignment for the benefit of the creditors of the Company, or admitting in
writing the Company's inability to pay its debts generally as they become due;
or taking action in furtherance of any such decisions.
"Material Adverse Effect" means a material adverse effect on the use,
operation or value of the Property or on the Company's direct or indirect
ownership of the Property, or on the current financial position, members' equity
or results of operations of the Company or any Subsidiary or the ability of the
Company or any Subsidiary to perform its obligations under this Agreement, the
Option Agreement, the Contribution Agreement, the Indemnity Agreement, the
Environmental Indemnity Agreement, the Property Management Agreement, the
Consulting Agreement or the Leasing Agreement.
"Member" means each of RECP, MP, BGHS and the Special Member in their
capacity as members of the Company and any additional Persons hereafter admitted
as a member of the Company in accordance with the provisions of this Agreement,
for so long as such Person shall be a member of the Company and any transferee
of such Person permitted hereunder and admitted as a member of the Company in
accordance with Section 11.6, and "Members" shall mean such Persons,
collectively.
"Member Nonrecourse Debt Minimum Gain" shall have the meaning ascribed to
such term in Regulations section 1.704-2(i)(2).
"Member Nonrecourse Deductions" shall mean any item of Company loss,
deduction, or expenditure under section 705(a)(2)(B) of the Code that is
attributable to a Member Nonrecourse Debt, as determined pursuant to
Regulations section 1.704-(i)(2).
"Membership Interest" means, with respect to any Member, the entire limited
liability company interest of that Member in the Company, including the right of
such Member to any and all benefits to which a Member may be entitled as
provided in this Agreement, together with the obligations of such Member to
comply with all the terms and provisions of this Agreement.
"Minimum Gain" shall have the meaning set forth in Regulations section
1.704-2(d)(1) and shall mean the amount determined by (i) computing for each
nonrecourse liability of the Company any gain the Company would realize if it
disposed of the property subject to that liability for no consideration other
than full satisfaction of the liability and (ii) aggregating the separately
computed gains. If the Book Value of any Company Asset differs from the adjusted
tax basis of such property, the calculation of Minimum Gain pursuant to the
preceding sentence shall be made by reference to the Book Value. For purposes
hereof, a liability of the Company
11
is a nonrecourse liability to the extent that no Member or related Person bears
the economic risk of loss for that liability within the meaning of Regulations
section 1.752-1.
"MP" has the meaning set forth in the introductory paragraph hereof.
"Net Disposition Proceeds" has the meaning set forth in Section 6.5(b).
"Net Income (Loss)" shall mean for each Fiscal Year or other period, the
taxable income or loss of the Company, or particular items thereof, determined
in accordance with the accounting method used by the Company for U.S. federal
income tax purposed with the following adjustment: (i) all items of income,
gain, loss or deduction allocated pursuant to Section 9.2 through 9.4 shall not
be taken into account in computing such taxable income or loss; (ii) any income
of the Company that is exempt from U.S. federal income taxation and not
otherwise taken into account in computing Net Income and Net Loss shall be added
to such taxable income or loss; (iii) if the Book Value of any asset differs
from its adjusted tax basis for U.S. federal income tax purposes, any
depreciation, amortization or gain resulting from a disposition of such asset
shall be calculated with reference to such Book Value; (iv) upon an adjustment
to the Book Value of any asset, pursuant to the definition of Book Value, the
amount of the adjustment shall be included as gain or loss in computing such
taxable income or loss; and (v) except for items in (i) above, any expenditures
of the Company not deductible in computing taxable income or loss, not properly
capitalizable and not otherwise taken into account in computing Net Income and
Net Loss pursuant to this definition shall be treated as deductible items.
"Net Refinancing Proceeds" has the meaning set forth in Section 10.2(b).
"Net Sale Proceeds" has the meaning set forth in Section 10.2(a).
"Net Subordinated Debt" means, collectively, the Senior Mezzanine Debt and
the Junior Mezzanine Debt.
"Nondiscretionary Expenses" has the meaning set forth in Section 6.3(b).
"Nonrecourse Deductions" shall have the meaning ascribed to such term in
Regulations section 1.704-2(b)(1).
"Objection Notice" has the meaning set forth in Section 6.3(b).
"Option Agreement" means the Option Agreement, dated as of the Effective
Date, among ▇▇▇▇▇▇▇, the ▇▇▇▇▇▇▇ Members and RECP, as set forth in Exhibit G
hereto.
"Organizational Document" means, with respect to any Person, (i) in the
case of a corporation, such Person's certificate of incorporation and by-laws,
and any shareholder agreement, voting trust or similar arrangement applicable to
any of such Person's authorized shares of capital stock or the holders thereof,
(ii) in the case of a limited partnership, such Person's certificate of limited
partnership, limited partnership agreement and any voting trusts or similar
arrangements applicable to its partner or any of its partnership interests,
(iii) in the case of a limited liability company, such Person's certificate of
formation or certificate of organization, limited liability company agreement
and any other document affecting the rights
12
or duties of managers or holders of limited liability company interests or (iv)
in the case of any other legal entity, such Person's organizational documents
and all other documents establishing or affecting the duties or rights of
holders of equity interests in such Person.
"Percentage Interest" means the interest owned by a Member owning Regular
Member Interests as set forth on Schedule 3.3 herein, as such percentage may be
adjusted from time to time in accordance with the Agreement. For the purposes
of this Agreement, the Percentage Interest shall equal the percentage that the
Capital Contribution of such Member represents out of all Capital Contribution
of Members who own Regular Member Interests.
"Performance Default" means a "default" or "Event of Default" or "Event of
Acceleration" that arises under a Loan Document that is attributable, directly
or indirectly, to any of the following: (i) the business judgment of RECP, (ii)
acts or omissions of RECP taken (or not taken in the case of an omission) in
good faith, (iii) the performance of the Property, including the failure of the
Property to generate sufficient cash flow to pay debt service due under the Loan
Documents on a current basis and (iv) events or circumstances beyond the
reasonable control of RECP, including, without limitation, the inability to
obtain insurance required by the Loan Documents at a commercially reasonable
cost.
"Permitted Transfer" has the meaning set forth in Section 11.1(a).
"Person" means any individual, partnership, corporation, limited liability
company, trust or other legal entity.
"Prior Company" has the meaning set forth in the Recitals.
"Prior Company Contribution" has the meaning set forth in the Recitals
hereof.
"Prior Company Distribution" has the meaning set forth in the Recitals
hereof.
"Property" means the fee interest in the land, and improvements and the
personal property owned by the Property Owner, as more particularly described
on Exhibit H attached hereto.
"Property Management Agreement" means the property management agreement in
the form of Exhibit I attached hereto, being entered into concurrently herewith
between the Property Owner, as owner of the Property, and the Property Manager,
as the same may be modified, amended, supplemented or replaced as provided for
therein.
"Property Manager" means ▇▇▇▇▇▇▇ Partners Development, Ltd., a California
limited partnership, or any successor or replacement agent approved by RECP.
"Property Owner" means Library Square Associates, LLC, a Delaware limited
liability company, or any other Person who acquires the Property, or any portion
thereof, from such person or from any other person who is a Property Owner at
such time.
"Property Reserves" has the meaning set forth in the Contribution
Agreement.
"Put Event" has the meaning set forth in the Option Agreement.
13
"RECP" has the meaning set forth in the introductory paragraph hereof.
"RECP Additional Capital Contribution" has the meaning set forth in 7.3(a).
"RECP Exclusivity Period" has the meaning set forth in Section 5.9.
"RECP Investment" means, as of any date, an amount equal to the sum of (a)
the aggregate amount of RECP's Capital Contributions (including, without
limitation, any RECP Additional Capital Contribution) theretofore made pursuant
to Article 7; (b) any amounts contributed (and any additional amounts deemed to
have been contributed) by RECP pursuant to Article 7 as of such date; and (c)
any amounts paid by RECP or any of its Affiliates under or in connection with
the Loan Documents or otherwise due to any obligation or liabilities of any of
the Companies, ▇▇▇▇▇▇▇, the ▇▇▇▇▇▇▇ Members or any of their Affiliates under
the Loan Documents being or becoming recourse to RECP or any of its Affiliates
or otherwise paid or assumed by RECP or any of its Affiliates (including,
without limitation, the assumption of any guarantee, all of which shall be
deemed Capital Contributions for purposes of calculating the Managing Member
Return).
"RECP Multiple" has the meaning set forth in the definition of Managing
Member Return herein.
"Regular Member Interests" means the Membership Interests issued to the
▇▇▇▇▇▇▇ Members and such other Membership Interests that are not Managing
Member Interests that are issued in accordance with the terms of this Agreement
from time to time.
"Regulation" means the regulations promulgated under the Code, as such
regulations are in effect on the date hereof.
"Scheduled Distribution Date" means in any calendar month the 12th day of
such month or, if such day is not a Business Day, the immediately preceding
Business Day.
"Senior Mezzanine Borrower" means Bunker Hill Senior Mezzanine, LLC, a
Delaware limited liability company that is the sole member of the Property
Owner.
"Senior Mezzanine Debt" or "Senior Mezzanine Loan" means senior mezzanine
debt in the original principal amount of $59,561,000 as set forth in the Senior
Mezzanine Loan Agreement, dated as of the Effective Date, between Senior
Mezzanine Borrower, as borrower, and Senior Mezzanine Lender, as mezzanine
lender.
"Senior Mezzanine Lender" means Column Financial, Inc., a Delaware
corporation.
"Senior Mezzanine Loan Agreement" means the Agreement, dated as of the
date hereof, between Column Financial, Inc. and the Senior Mezzanine Borrower,
pursuant to which the Senior Mezzanine Loan is provided.
"Significant Decision" has the meaning set forth in Section 4.1(c).
"Space Leases" has the meaning set forth in the Contribution Agreement.
"Special Member" has the meaning set forth in the initial paragraph hereof.
14
"Subsidiary" means, with respect to any Person, any entity in which such
Person holds a majority ownership interest, whether directly or through one or
more other Persons and "Subsidiaries" shall mean such entities, collectively.
"Substituted Member" means any Person admitted to the Company as a Member
pursuant to the provisions of Section 11.6.
"Supplemental Cap" has the meaning set forth in the Contribution
Agreement.
"Suspension Period" has the meaning set forth in the Option Agreement.
"Tax Matters Member" has the meaning set forth in Section 5.7.
"Transaction Documents" means, collectively, this Agreement, the Option
Agreement, the Contribution Agreement, the Indemnity Agreement, the
Environmental Indemnity Agreement, the Property Management Agreement, the
Leasing Agreement, the Consulting Agreement and each other instrument,
agreement or certificate executed and delivered by the Company, but only if
executed by a Maguire Member or any of its Affiliates, the ▇▇▇▇▇▇▇ Members or
any Affiliate of any of the foregoing to or for the benefit of RECP or any of
its Affiliates, as a condition to or, in connection with RECP's contribution to
the Company, and the certificates of formation and limited liability company
agreements and any amendments or restatements thereof of the ▇▇▇▇▇▇▇ Members
and each of the Subsidiaries of the Company not including any Loan Documents.
"Transfer" means, with respect to the Membership Interest of any Member or
any other asset, any transfer, sale, pledge, hypothecation, encumbrance,
assignment or other disposition, directly or indirectly through any one or more
intermediaries, of all or any portion of that Interest or other asset or any
right to receive proceeds therefrom (whether voluntarily, involuntarily, by
operation of law or otherwise).
"Trigger Event" means the occurrence of any of the following events:
(a) the expiration or lapse of the Call Option;
(b) a default or breach by any of the ▇▇▇▇▇▇▇ Members or any of
their Affiliates of any covenant or obligation (including, without limitation,
failure to cause any of the Companies or Property Manager to take or refrain
from taking any action) under this Agreement or any of the Transaction
Documents (other than any default specifically addressed in another clause in
this definition), provided if the condition giving rise to the default in
question is capable of being cured, the ▇▇▇▇▇▇▇ Members shall have (other than
with respect to the obligations in Section 5.2(c) herein) 15 days following
receipt of notice from RECP to cure such default, unless such default is
susceptible to cure but cannot reasonably be cured within such 15 day period
and the ▇▇▇▇▇▇▇ Members shall have promptly commenced to cure and shall be
diligently prosecuting the same to completion, in which case the ▇▇▇▇▇▇▇
Members shall have such additional time (not to exceed 30 days) as may be
necessary to cure such default; or if any representation or warranty made by
the ▇▇▇▇▇▇▇ Members or any of their Affiliates (i) in Section 3.4 of this
Agreement; (ii) in the Contribution Agreement; or (iii) otherwise, in any
Transaction Document (in each case, disregarding any materiality or similar
qualification in each such representation) was false or misleading on or as of
the date made, to the extent such
15
misrepresentation, alone or together with any other misrepresentation
(disregarding any materiality or similar qualification) results in a Material
Adverse Effect;
(c) the occurrence of an Event of Default or Event of Acceleration
under any of the Loan Documents, unless such Event of Default or Event of
Acceleration is caused solely by any actions or omissions of RECP (it being
agreed that a Performance Default shall not be deemed to be an Event of Default
or Event of Acceleration caused solely by the acts or omissions of RECP); or
(d) if RECP assumes or performs any obligation or liability
(including, without limitation, any guarantee) of ▇▇▇▇▇▇▇, as set forth in
Section 8.3 of each of the Senior Mezzanine Loan Agreement and the Junior
Mezzanine Loan Agreement.
Without limiting the generality of provisions (b) and (c) above, the
following events shall constitute Trigger Events:
(1) if any of the ▇▇▇▇▇▇▇ Members or any of their Affiliates,
directly or through any other Person, takes any Material Action or any
action described in Section 4.1(c) without RECP's prior written
consent;
(2) if any of the ▇▇▇▇▇▇▇ Members fails to comply, or the ▇▇▇▇▇▇▇
Members or any Person controlling or under common control with the
▇▇▇▇▇▇▇ Members takes or fails to take any action that results in the
Company failing to comply, with any of the covenants in Schedule 6.8;
or any of the ▇▇▇▇▇▇▇ Members fails to comply with any of the
covenants in Schedule 6.9.
(3) without the prior written consent of RECP (which may be
granted or withheld in its sole discretion), upon the occurrence of
any Transfer directly or indirectly of any interest in the Company,
(other than an interest held by RECP or any Affiliate of RECP) or of
any interest in the ▇▇▇▇▇▇▇ Members or in any entity that directly or
indirectly owns any interest in the ▇▇▇▇▇▇▇ Members, in each case
including, without limitation, the granting (voluntarily, by operation
of law or otherwise) of any pledge, lien, security interest or other
charge or encumbrance upon any such direct or indirect interest, other
than a Transfer expressly permitted by and in accordance with the
provisions of Article 11;
(4) if the ▇▇▇▇▇▇▇ Members or any of their Affiliates alleges in
or commences any action or proceeding in which it is asserted that any
material provision of this Agreement or any other Transaction Document
is not enforceable by RECP in accordance with its terms;
(5) if an Extension Notice is timely delivered, the failure of
the ▇▇▇▇▇▇▇ Members to purchase a Supplemental Cap and pay any
extension fees required under the New Subordinated Debt on or before
the Option Termination Date (as defined in the Option Agreement), and
if the Extension Notice is delivered, to maintain such Supplemental
Cap through and including the fourth anniversary of the Effective Date
or to maintain the Interest Rate Cap through and including the third
anniversary of the Effective Date all in accordance with the Loan
Documents, provided, however, that if such Supplemental Cap or
16
Interest Rate Cap no longer satisfies the requirements under the Loan
Documents other than due to any action or omission of the ▇▇▇▇▇▇▇
Members, such event shall not constitute a Trigger Event if the ▇▇▇▇▇▇▇
Members shall not later than 3 Business Days prior to the expiration of
any grace period provided for under the Loan Documents obtain a
replacement Supplemental Cap or Interest Rate Cap that satisfies the
requirements under the Loan Documents;
(6) if the ▇▇▇▇▇▇▇ Members, ▇▇▇▇▇▇▇ or any of their respective
Affiliates shall cause or permit the Company, the Property Owner or any
of the Company's other Subsidiaries or any of the ▇▇▇▇▇▇▇ Members, to
make an assignment for the benefit of creditors, admit in writing its
inability to pay its debts as they become due or generally not be
paying its debts as they become due; and
(7) if any receiver, liquidator or trustee shall be appointed for
any of the ▇▇▇▇▇▇▇ Members, the Company, the Property Owner or any
other Subsidiary of the Company, or if any such Person shall be
adjudicated as bankrupt or insolvent, or if any petition for
bankruptcy, reorganization or arrangement pursuant to federal
bankruptcy law or any similar federal or state law, shall be filed by
or against, consented to, or acquiesced by, any such Person, or if any
proceeding shall be instituted for the dissolution or liquidation of
any such Persons; provided, however, that if such appointment,
adjudication, petition or proceeding was involuntary and not consented
to by any of the foregoing Persons, it shall constitute a Trigger Event
unless it is discharged, stayed or dismissed within sixty (60) days;
provided, further, if such appointment, adjudication, petition or
proceeding was solely the result of a filing directed by or consented
to by RECP, such event shall not, unless it is otherwise considered a
Trigger Event pursuant to any other provisions hereof, constitute a
Trigger Event.
Notwithstanding the foregoing, to the extent any occurrence would
otherwise constitute a Trigger Event, such occurrence shall not constitute a
Trigger Event if it occurs solely as a result of (i) actions of RECP (other
than a Performance Default) unless the same was at the direction of or as a
result of the action or inaction of any of the ▇▇▇▇▇▇▇ Members, the Property
Manager or any of their respective Affiliates and without the consent of RECP;
or (ii) inaction of RECP (but only an inaction resulting from RECP being
requested by the ▇▇▇▇▇▇▇ Members to take any actions or make any decision and
RECP refrains from doing so).
1.2 Terms Generally. For all purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires:
(a) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision;
(b) the words "including" and "include" and other words of similar import
shall be deemed to be followed by the phrase "without limitation"; and
17
(c) references herein to a "Schedule" are to one of the Schedules attached
to this Agreement and references to an Article or a Section are to one of the
Articles or Sections of this Agreement. Each Schedule attached hereto and
referred to herein is hereby incorporated herein by reference.
ARTICLE 2
ORGANIZATION
2.1 Formation. The Company has been formed as a Delaware limited liability
company by the execution and filing of a Certificate of Formation by ▇▇▇▇ ▇.
▇▇▇▇▇▇ as an authorized person as required by the Act. The rights, powers,
duties, obligations and liabilities of the Members (in their respective
capacities as such) shall be determined pursuant to the Act and this Agreement.
To the extent that the rights, powers, duties, obligations and liabilities of
any Member (in his capacity as such) are different by reason of any provision of
this Agreement than they would be in the absence of such provision, this
Agreement shall, to the extent permitted by the Act, control.
2.2 The Name. The name of the Company shall be Bunker Hill Equity, LLC,
and all business of the Company shall be conducted in that name or in such other
names that comply with applicable law as the Managing Member may select from
time to time.
2.3 Registered Office; Registered Agent; Principal Office; Other Offices.
The registered office of the Company required by the Act to be maintained in the
State of Delaware shall be the office of the initial registered agent named in
the Certificate of Formation or such other office (which need not be a place of
business of the Company) as the Managing Member may designate from time to time
in the manner provided by law. The registered agent of the Company in the State
of Delaware shall be the initial registered agent named in the Certificate of
Formation or such other Person or Persons as the Managing Member may designate
from time to time in the manner provided by law. The principal office of the
Company shall be at such place as the Managing Member may designate from time to
time.
2.4 Purposes. The nature of the business or purposes to be conducted or
promoted by the Company is to engage in the direct or indirect ownership of the
Property Owner and the Property and, the development, management, maintenance,
repair and renovation of the Property, the financing of the Property, any other
actions or activities related to or ancillary to any of the foregoing and any
other lawful act of activity for which limited liability companies may be
organized under the Act. Subject to the provisions of this Agreement, the
Company shall have the power and authority to take any and all actions
necessary, appropriate, advisable, desirable or incidental to or for the
furtherance and accomplishment of the foregoing purposes. Notwithstanding
anything herein to the contrary, nothing set forth herein shall be construed as
authorizing the Company to possess any purpose or power, or to do any act or
thing, forbidden by law to a limited liability company organized under the laws
of the State of Delaware.
2.5 Powers of the Company. Subject to the provisions of this Agreement,
(i) the Company may, with the approval of the Managing Member and, to the extent
required under this Agreement, the approval of the ▇▇▇▇▇▇▇ Members, enter into
and perform any and all documents, agreements and instruments, all without any
further act, vote or approval of any
18
Member, except as provided in this Agreement and (ii) except as provided in
this Agreement, the Managing Member may authorize any Person (including any
Member or officer) to enter into and perform any documents on behalf of the
Company.
2.6 Foreign Qualification. Prior to the Company's conducting business in
any jurisdiction other than Delaware, the ▇▇▇▇▇▇▇ Members shall use their
reasonable efforts to cause the Company to comply with all requirements
necessary to qualify the Company as a foreign limited liability company in such
jurisdiction. At the request of the Managing Member, each Member shall execute,
acknowledge, swear to and deliver all certificates and other instruments
conforming with this Agreement that are necessary or appropriate to qualify,
continue or terminate the Company as a foreign limited liability company in each
such jurisdiction in which the Company may conduct business from time to time.
2.7 Term. The term of the Company shall commence on the date on which the
Certificate of Formation is filed with the office of the Secretary of State of
Delaware and the term shall continue until December 31, 2052, unless sooner
dissolved as provided in Section 12.1. The existence of the Company as a
separate legal entity shall continue until cancellation of the Certificate of
Formation as provided in the Act.
2.8 No State-Law Company. The Members intend that the Company shall not be
a partnership (including, without limitation, a limited partnership) or joint
venture, and that no Member, Managing Member, representative or officer shall as
a result of its being a party to this Agreement, be a partner or joint venturer
of any other Member or Managing Member, for any purposes other than federal, and
if applicable, state tax purposes, and this Agreement shall not be construed to
the contrary. Notwithstanding the immediately preceding sentence, the Members
intend that the Company shall be teated as a partnership for federal tax and, if
applicable, state income tax and local income tax purposes, and each Member and
the Company shall file all Tax returns, and otherwise take all Tax and financial
reporting positions, in a manner consistent with such treatment. Neither the
Members nor the Company shall make any election under Treas. Reg. Section
301.7701-3, or any comparable provisions of state or local law, to treat the
Company as an entity other than a partnership for federal tax or state or local
income tax purposes.
ARTICLE 3
MEMBERSHIP INTERESTS
3.1 Classes of Members.
(a) The Company shall have three classes of Membership Interests and three
classes of Members. The ▇▇▇▇▇▇▇ Members shall be issued Regular Member
Interests. RECP shall be issued Managing Member Interests. The Special Member
is a member without any economic interest in the Company. RECP and the ▇▇▇▇▇▇▇
Members are the only Equity Members. The ▇▇▇▇▇▇▇ Members, RECP and the Special
Members shall all be members of the Company and shall be subject to the terms of
this Agreement and the designations, rights, preferences, limitations and
restrictions set forth herein. RECP shall have such additional designations,
rights, preferences, limitations and restrictions set forth herein with respect
to the Managing Member Interests.
19
(b) The Company with at all times have at least one Special Member who
shall be a natural person appointed by the Managing Member and who shall not
have been at the time of appointment as Special Member, shall not thereafter
become and shall not have been at any time during the five years preceding the
appointment (i) a Member, manager or director (other than an "independent
director" or "special member") of, or an officer or employee of, the Company,
any Member or any of their respective members, managers, investors or
Affiliates, (ii) a customer of, supplier or service provider (including a
provider of professional services) to, the Company, any of the Members or any of
their respective members, managers, investors or Affiliates such that such
individual's annual revenues derived from any of the Members and their
respective members, managers, investors or Affiliates exceeded 5% of such
individual's annual revenues for any of the preceding five years, or (iii) a
member of the immediate family of any such Member, manager, director, officer,
employee, supplier or customer or a member of the immediate family of any other
member or manager. Upon the occurrence of any event that causes the Special
Member to cease to be a member of the Company, a new Special Member shall be
appointed forthwith by the Managing Member, and no decision stated in this
Agreement as requiring the consent of the Special Member shall be taken in the
interim period until a new Special Member is appointed. No resignation or
removal of a Special Member, and no appointment of a successor
Special Member, shall be effective until such successor shall have accepted his
or her appointment as a Special Member by a written instrument in which he or
she agrees to be bound by all of the terms and conditions of this Agreement
applicable to the Special Member. All right, power and authority of the Special
Member shall be limited to the extent necessary to exercise those rights and
perform those duties specifically set forth in this Agreement as being the
responsibility of the Special Member. No Special Member shall at any time serve
as trustee in bankruptcy for any Affiliate of the Company.
(c) The Equity Members will be the only Members of the Company that have
any interest in the profits, losses or capital of the Company. Except for the
rights specifically granted to the Special Member in this Agreement, the Equity
Members will be the only Members of the Company with any voting or management
rights in respect of the Company.
(d) The Special Member agrees to remain independent from the Equity
Members, agrees to be a Member of the Company for the limited purposes provided
herein and to perform its obligations as the Special Member, and the Company and
the Equity Members agree that the Special Member will be a Member of the Company
for such limited purposes. The Company and the Equity Members agree that the
Special Member: (a) in accordance with Section 18-301 of the Act: (i) will not
make, and will not be obligated to make, a contribution to the Company, and (ii)
will not own, and will not be obligated to acquire, a Membership Interest in the
Company and (b) will have no management, approval, voting, consent or veto
rights in the Company, other than to the extent that its affirmative vote,
approval or consent is required for the Company or the Equity Members to perform
certain acts or take certain actions as expressly provided in this Agreement.
The Special Member may not bind the Company.
3.2 Managing Member Interests. Subject to Section 10.4, the Managing
Member Interests shall rank senior to and have priority over the Regular Member
Interests with respect to the payment of distributions and redemptions and as to
the distribution of assets upon liquidation, dissolution or winding up of the
Company, subject to Section 12.3 hereof. Without the consent of RECP, the
Company shall not authorize, create or issue any Membership Interests that shall
be senior to or on parity with the Managing Member Interests with respect
20
to distributions (upon liquidation, dissolution, winding up of the Company or
otherwise), dividends, redemption rights or voting rights.
3.3 Members. Upon the making by RECP of its contribution to the Company
for the Managing Member Interests pursuant to the Contribution Agreement, the
Managing Member Interests shall be deemed to be issued to RECP and shall be
validly issued, fully paid and nonassessable limited liability company interests
in the Company. Upon the making by each ▇▇▇▇▇▇▇ Member of its contributions to
the Company as described in this Agreement, the Regular Member Interests shall
be deemed to be issued to the ▇▇▇▇▇▇▇ Members and shall be validly issued, fully
paid and nonassessable limited liability company interests in the Company.
Neither the issuance of the Managing Member Interest nor the issuance of the
Regular Member Interests shall be subject to preemptive rights. The Managing
Member Interests shall be subject to the terms of the Option Agreement. The
respective names, mailing addresses, Capital Contributions, class of Membership
Interests and percentage Interests of the Members shall be as set forth on
Schedule 3.3, as amended from time to time in accordance with the terms of this
Agreement. The Managing Member shall amend Schedule 3.3 from time to time,
without the consent of any other Member being required therefor, to reflect any
changes in the names or Capital Contributions or Membership Interests of the
Members made in accordance with this Agreement and any changes in the mailing
addresses of the Members. Any reference in this Agreement to Schedule 3.3 shall
be deemed to be a reference to Schedule 3.3 as amended and in effect from time
to time.
3.4 Representations and Warranties of Members. (a) Each Member hereby
represents and warrants to and acknowledges with the Company and the other
Members with respect to itself only, that:
(i) each such Member who is not an individual is duly formed and has
the authority to do business in any jurisdiction in which it currently does
business, is authorized to execute and deliver this Agreement (or the Joinder
Agreement to which it is a party, in the case of an Additional Member or
Substituted Member) and any Transaction Document and to perform its obligations
hereunder, and each such Member has duly executed and delivered this Agreement
(or such Joinder Agreement, as the case may be) and each Transaction Document,
and this Agreement (and, if applicable, such Joinder Agreement) and each
Transaction Document are valid and binding obligations of such Member,
enforceable against such Member in accordance with their terms, except as the
enforceability hereof or thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, fraudulent transfer, reorganization, moratorium or other
similar laws relating to the enforcement of creditors' rights generally and by
general principles of equity.
(ii) his or its execution and delivery of this Agreement and each
Transaction Document to which he or it is a party and the performance of his or
its obligations hereunder and thereunder will not conflict with, result in a
breach of or constitute a default (or any event that, with notice or lapse of
time, or both, would constitute a default) or result in the acceleration of any
obligation under any of the terms, conditions or provisions of any other
agreement or instrument to which he or it is a party or by which he or it is
bound or to which any of his or its property or assets are subject, with respect
to Members who are not individuals conflict with or violate any of the
provisions of its Organizational Documents, or violate any statute or any order,
rule or regulation of any court or governmental or regulatory agency, body or
official, in any manner that would adversely affect the performance of his or
its duties
21
hereunder; such Member has obtained any consent, approval, authorization or
order of any court or governmental agency or body required for the execution,
delivery and performance by such Member of his or its obligations hereunder and
thereunder;
(iii) there is no action, suit or proceeding pending against such
Member, or, to its knowledge, threatened in any court or by or before any other
Governmental Authority that would prohibit its entering into or performing its
obligations under this Agreement or any Transaction Document; and
(iv) such Member has knowledge and experience in financial and
business matters and is capable of evaluating the merits and risks of an
investment in the Company and making an informed investment decision with
respect thereto; (ii) such Member is able to bear the economic and financial
risk of an investment in the Company for an indefinite period of time; (iii)
such Member is acquiring his or its Membership Interest for investment only and
not with a view to, or for resale in connection with, any distribution to the
public or public offering thereof; (iv) the Membership Interests have not been
registered under the securities laws of any jurisdiction, and cannot be
Transferred unless they are subsequently registered or otherwise qualified under
applicable securities laws (unless they are subsequently registered or otherwise
qualified under applicable securities laws (unless an exemption from such
registration or other qualification is available) and the provisions of this
Agreement governing Transfers of Membership Interests have been complied with.
(b) The ▇▇▇▇▇▇▇ Members hereby represent to RECP that other than the
Persons listed in the definition of Knowledge, no other Person employed by or
associated with the ▇▇▇▇▇▇▇ Members or the Property has any material knowledge
related to the Property or the Companies and, to the extent any such Person
exists, such Person shall, immediately and without further action, be deemed to
be added to the list in the definition of Knowledge.
(c) RECP hereby represents to the ▇▇▇▇▇▇▇ Members that all
representations and warranties it made to the lenders in the New Subordinated
Debt documents with respect to RECP, the Entity Guarantor or their respective
Affiliates are true and correct in all material respects.
3.5 Material Actions. Notwithstanding anything herein to the contrary,
including without limitation Section 4.3,, the Company will not take and no
Member shall effect or implement any action constituting a Material Action
without the consent of the Special Member. The Special Member shall not be
entitled to vote on any matter other than Material Actions.
3.6 Additional Membership Interests; Additional Members.
(a) Additional Interests. Subject to Sections 4.1(c) and 3.2, the
Managing Member shall have the right to cause the Company to issue or sell to
any Person (including Members and Affiliates of Members) any of the following
(which for purposes of this Agreement shall be "Additional Membership
Interests"): (i) additional Membership Interests in the Company (including new
classes or series thereof having different rights); (ii) obligations, evidences
of Indebtedness or other securities or interests convertible into or
exchangeable for Interests; and (iii) warrants, options or other rights to
purchase or otherwise acquire Membership Interests and (iv) other equity
equivalents. The Managing Member shall determine the terms and conditions
governing the issuance of such Additional Membership Interests, including the
number and designation of such Additional Membership Interests, the preference
(with respect
22
to distributions, in liquidation or otherwise) over any other limited
liability company interests and any required contributions in connection
therewith. If an Additional Membership Interest is issued to an existing Member
in accordance with the terms of this Agreement, the Managing Member shall amend
Schedule 3.3 without the further vote, act or consent of any other Person to
reflect the issuance of such Additional Membership Interest and, upon the
amendment of such Schedule 3.3, such Member shall be issued his or its
Additional Membership Interest.
(b) Additional Members. In order for a Person, other than an existing
Member, to be admitted as a Member of the Company with respect to an Additional
Membership Interest: (i) such Additional Membership Interest shall have been
issued or Transferred in accordance with the terms of this Agreement including
Section 4.1(c)(9); (ii) such Person shall have delivered to the Company a
written undertaking to be bound by the terms and conditions of this Agreement
and shall have delivered such documents and instruments as the Managing Member
determines to be necessary or appropriate and as are consistent with the terms
of this Agreement in connection with the issuance or transfer of such Additional
Membership Interest to such Person or to effect such Person's admission as a
Member; and (iii) the Managing Member shall amend Schedule 3.3 without the
further vote, act or consent of any other Person to reflect such new Person as a
Member. Upon the amendment of Schedule 3.3, such Person shall be admitted as an
additional Member (an "Additional Member") and deemed listed as such on the
books and records of the Company and thereupon shall be issued his or its
Additional Membership Interest.
ARTICLE 4
MANAGEMENT OF THE COMPANY'S BUSINESS;
POWERS AND DUTIES OF THE MEMBERS
4.1 Management of the Company's Business.
(a) Subject to the provisions of this Agreement, including, without
limitation, Sections 5.1(a) and 4.1(c), and the mandatory provisions of
applicable law, the Managing Member shall have the full, exclusive and complete
discretion to exercise any right, power and authority to direct, control and
manage all powers of and day-to-day operations of, the Company including,
without limitation, to cause any action or any decision in any Subsidiary and to
represent, bind or act on behalf of the Company at any time, and in any manner.
(b) Notwithstanding the provisions of Section 4.1(a), and subject to: (i)
the right of the Managing Member to revoke the rights and obligations provided
to the ▇▇▇▇▇▇▇ Members and/or their Affiliates in Article V(11)(d) of the
Property Management Agreement, with or without any reason, in whole or in part,
at any time; (ii) any limitations included in the Approved Budget and Approved
Annual Plan and subject to the availability of adequate funds provided to the
Companies as necessary; and (iii) the provisions of and limitations created by
the Loan Documents and the other provisions of this Agreement, the Managing
Member shall have the right, but not the obligation, to delegate certain tasks,
responsibilities and duties relating to the Property to the ▇▇▇▇▇▇▇ Members or
(indirectly through the Property Owner) the Property Manager (the "Day-to-Day
Management Obligations"). The Day-to-Day Management Obligations delegated to the
▇▇▇▇▇▇▇ Members or the Property Manager shall be performed without additional
compensation and subject to the same standards of care maintained by prudent
managers of Class "A" commercial office buildings in the City of Los Angeles,
and shall
23
be completed and accomplished for and on behalf of the Company and its
Subsidiaries, with diligence and in a prompt and businesslike manner,
exercising such care and skill as a prudent owner with sophistication and
experience in owning, operating and managing properties like the Property
would exercise in dealing with its own property (all the requirements described
above, the "Management Standard Requirements"). Notwithstanding any such
delegation of the Day-to-Day Management Obligations to the ▇▇▇▇▇▇▇ Members or
the Property Manager, the Managing Member's consent shall be required in
connection with instituting any legal action, entry into any Major Lease or any
other Space Lease which is not in accordance with the Approved Leasing
Guidelines or entry into any contract involving payment or receipt of an
amount in excess of $50,000 or the term of which is one year or more. In
performing its duties hereunder, including, without limitation, any Day-to-Day
Management Obligations, the ▇▇▇▇▇▇▇ Members and their Affiliates shall devote
such time to the Company, its Subsidiaries and their respective businesses as
is necessary to conduct the operations of the Company and its Subsidiaries in
an efficient manner and to carry out the ▇▇▇▇▇▇▇ Members' and its Affiliates'
responsibilities as set forth therein.
(c) Except as set forth in Section 4.3, RECP (generally or as Managing
Member) shall not have any right, power or authority under this Agreement or
otherwise and shall not take, decide or implement (or enter into any commitment
or obligation binding upon the Company to do so) any matter within the scope of
any of the matters enumerated below (each a "Significant Decision"), which may
only be taken, decided or implemented, subject to the provisions of Sections 4.3
and 5.9 herein, by mutual consent of all Members (other than the Special
Member);
(1) enter into or cause or permit the Company or any Subsidiary to
enter into any agreement or option to sell, transfer, assign, create a
Lien, or otherwise dispose of all or any portion of the Property or the
other assets owned by it or any portion thereof, or enter into any
amendment, renegotiation, modification, supplement or extension of any
agreement to sell, transfer, assign, create a lien, or otherwise dispose
of all or any portion of the Property or the other assets owned by it or
any portion thereof, in each case, other than in the ordinary course of
business of the operation of the Property;
(2) acquire or lease any land or other real property or interest
therein other than the Property;
(3) to the fullest extent permitted by law, dissolve and wind-up the
Company or any Subsidiary;
(4) incur, renew, modify, refinance or pay or otherwise discharge
Indebtedness, including the Existing Mortgage Debt or the New Subordinated
Debt, other than as provided in the Approved Business Plan or an Approved
Budget and other than in the ordinary course of business of operating the
Property;
(5) modify any Loan Document in any material respect, except, if such
modification is provided for in an Approved Business Plan;
(6) institute proceedings to adjudicate the Company or any Subsidiary
as bankrupt, or consent to the filing of a bankruptcy proceeding against
the Company or any Subsidiary, or file a petition or answer or consent to
seeking reorganization of the
24
Company or any Subsidiary under the Bankruptcy Code or any other similar
applicable federal, state or foreign law, or consent to the filing of any
such petition against the Company or any Subsidiary, or consent to the
appointment of a receiver or liquidator or trustee or assignee in
bankruptcy or insolvency of the Company or any Subsidiary or of its
property, or make an assignment for the benefit of creditors of the Company
or any Subsidiary, or admit in writing the Company's or any Subsidiary's
inability to pay its debts generally as they become due;
(7) organize or form any Subsidiary of the Company or of any
Subsidiary or acquire, or become an owner of, equity interests in any such
entity;
(8) change the nature of the business of the Company or any Subsidiary
or take any action, or fail to take any action, which would be contrary to
the business of the Company or any Subsidiary as set forth in the Annual
Business Plan or which would make it impossible for any of them to carry
out their intended purpose and objectives as set forth in the Annual
Business Plan;
(9) admit any Member or owner of any other interest in, or remove any
Member or owner of any other equity interest in, the Company or any
Subsidiary, in each case, other than any assignee of the RECP Membership
Interests pursuant to and in compliance with the provisions of this
Agreement, or create any new class of ownership or equity in the Company or
any of its Subsidiaries;
(10) amend this Agreement, the Certificate of Formation or any other
Organizational Document of the Company or any Subsidiary, other than to
facilitate the assignment of RECP's Membership Interests, pursuant to and
in compliance with the provisions of this Agreement;
(11) merge or consolidate the Company or any Subsidiary with or into
any other Person or, subject to Section 14.19 herein, convert the Company
into any different form of legal entity (or engage in any other transaction
having substantially the same effect);
(12) subject to section 9.5(a)(iv) herein, make or revoke any tax
election by or on behalf of the Company or any Subsidiary;
(13) make any public or private offering for the sale of equity
interests or securities issued by the Company or any Subsidiary; or
(14) take any action, initiate any proceedings or assert any claim in,
to or under the BGHS Note.
(d) Except as otherwise expressly provided in this Agreement, no Member
shall have any authority to bind or act for the Company or any other Member. No
Member shall hold itself granted express authority pursuant to this Agreement to
bind the Company. Any action taken by any Member without authority shall be void
ab initio and have no effect.
25
4.2 Appointment of Managing Member. Subject to Section 4.3 and the other
provisions of this Agreement, the Members hereby appoint RECP as the initial
Managing Member with the rights and responsibilities set forth in Section 4.1
and subject to the limitations set forth in Section 4.1(c) and elsewhere in this
Agreement. The rights and duties of RECP as Managing Member may be assigned to
any Person that acquires all or part of RECP's Membership Interests in the
Company in compliance with Section 11.2 under this Agreement, subject to the
restrictions on such rights and duties under Sections 4.1(c) and 4.3.
4.3 RECP's Rights Following an Trigger Event and During a Suspension
Period.
(a) Notwithstanding any delegation of Day-to-Day Management Obligations to
the ▇▇▇▇▇▇▇ Members or their Affiliates or any other provision of this Agreement
to the contrary but without derogating from the ▇▇▇▇▇▇▇ Members' rights to
exercise the Call Option pursuant to Section 3.1 of the Option Agreement (to the
extent the Call Option has not otherwise lapsed, expired or been suspended),
upon the occurrence of a Trigger Event and the delivery by RECP to the ▇▇▇▇▇▇▇
Members of notice to such effect (except that no such notice will be required if
the Trigger Event consists of any of the events described in clauses (6) or (7)
of the definition of "Trigger Event", in which case the following items shall
happen automatically upon the occurrence of such event), RECP (in addition to
all powers, rights and authority with respect to the operations of the Company
and its Subsidiaries it has pursuant to Sections 4.1 and 4.2 above, which shall
remain unaffected) shall, automatically, immediately and without any further
action be entitled to, individually, or together with any designee appointed by
it, unilaterally make all decisions and take any and all actions (including,
without limitation, making any Significant Decision), on behalf of or with
respect to the Company and each of its Subsidiaries and have no obligation to
obtain approval or consent in any manner from the ▇▇▇▇▇▇▇ Members (and any and
all consent or approval rights of the ▇▇▇▇▇▇▇ Members under this Agreement or
any other Transaction Document shall automatically and without any further
action be terminated), provide, however, that it will not make or revoke any tax
election which adversely effects the ▇▇▇▇▇▇▇ Members without the ▇▇▇▇▇▇▇
Members' prior written consent, unless such election or revocation is made in
connection with or as a result of the recapitalization or sale of the Company or
any Subsidiary. RECP's authority and rights pursuant to the preceding sentence
are in addition to, and not in limitation or to the exclusion of, any of RECP's
other rights or remedies herein or in any of the other Transaction Documents
following a Trigger Event. A properly given notice of a Trigger Event pursuant
to this Section 4.3 shall be considered a notice of revocation of any rights of
the ▇▇▇▇▇▇▇ Members and their Affiliates under Section 4.1(b) above and
otherwise under this Agreement and under the Property Management Agreement and
Leasing Agreement and any other rights delegated to them by RECP (whether or not
in its capacity as Managing Member). Upon and after the occurrence of a Trigger
Event RECP, at its sole discretion, may choose to revoke only part of the rights
of the ▇▇▇▇▇▇▇ Members or their Affiliates, provided, however, that the Maguire
Member and the Property Manager shall have the right (subject to compliance with
the Loan Documents) to resign from its position as Property Manager.
(b) During a Suspension Period, RECP shall have the right, in its sole
discretion, without the consent or approval of any other Member, to take and
effect any of the Significant Decisions described in clauses (1), (4) and (9) of
Section 4.1(c).
(c) For the avoidance of any doubt, and without limiting the foregoing,
each of the ▇▇▇▇▇▇▇ Members hereby consents and agrees that upon the occurrence
of a Trigger Event and
26
notice thereof to the ▇▇▇▇▇▇▇ Members and during a Suspension Period, RECP
shall have sole and exclusive right, power and authority: (i) to cause the
Company and each Subsidiary, if any, to sell or refinance all or any portion of
its assets (including, without limitation, the Property, the Existing Mortgage
Debt and the New Subordinated Debt (but, except as set forth in Section 10.4,
excluding the BGHS Note) at such time or times as RECP in its sole discretion
shall determine, regardless of market conditions, real estate values or
financial conditions at such time or times, regardless of the impact of such
sale or refinancing or the timing thereof on the Company or the ▇▇▇▇▇▇▇ Members
(and regardless of the benefits derived by RECP from such sale or refinancing),
(ii) to cause the Company promptly to make any and all payments and/or
distributions to RECP and any of its Affiliates in respect of its Managing
Member Return regardless of the impact of such payments or distributions on the
Company or the ▇▇▇▇▇▇▇ Members, (iii) following a Trigger Event, to cause the
Company or any of its Subsidiaries to liquidate, (iv) following a Trigger
Event, to exercise the rights and powers granted to it pursuant to Section
4.3(a) above in its sole discretion; and (v) during a Suspension Period, to
exercise the rights and powers granted to it pursuant to Section 4.3(b) above
in its sole discretion.
(d) In selling or refinancing the Property or any other assets of
the Company or any Subsidiary under the circumstances described in (c) above,
RECP may conduct the sale or refinancing process in any manner RECP determines,
in its sole discretion, and RECP or any of its Affiliates may bid on or
purchase or refinance the subject assets.
(e) Each of the ▇▇▇▇▇▇▇ Members acknowledges and agrees that in
exercising the authority granted to RECP in the foregoing provisions and
elsewhere in this Agreement and each other Transaction Document, to the fullest
extent permitted by law, RECP shall materially comply with the provisions
herein and therein but otherwise shall have no duty, obligation or liability
(fiduciary or otherwise) to any ▇▇▇▇▇▇▇ Member or any Affiliate thereof or any
other Person whatsoever, it being understood that RECP shall be entitled to
exercise such authority in any manner it deems necessary or desirable to
maximize the value of its investment in the Company or otherwise. Each ▇▇▇▇▇▇▇
Member and any other Member hereby (i) absolutely, unconditionally and
irrevocably releases, waives, relinquishes, renounces and discharges forever
RECP and its Affiliates, from any and all claims, covenants, contracts,
agreements, promises, judgments, demands, actions or manner of actions,
resulting or arising as a result of RECP's exercise of the rights granted to it
under this Agreement; and (ii) to the fullest extent permitted by law, agrees
to indemnify RECP and hold RECP harmless from and against any and all costs,
expenses and other liabilities of any kind incurred by RECP as a result of any
claim, action or proceeding brought by or on behalf of any ▇▇▇▇▇▇▇ Member, any
direct or indirect investor in such ▇▇▇▇▇▇▇ Member or any Person, predicated on
the existence of or otherwise relating to any of the rights waived or released
in this Section. In addition, the ▇▇▇▇▇▇▇ Members hereby absolutely and
unconditionally (a) waive any rights they may have at law, in equity or
otherwise to (i) consent to, (ii) request appraisal rights with respect to or
(iii) otherwise approve, any merger or combination in connection with which
RECP and the ▇▇▇▇▇▇▇ Members receive cash or redeemable securities in respect
of their respective Interests in the Company, sale of Company Assets, financing
or refinancing or other similar transaction with respect to all or any of the
Company Assets or any transfer of any Membership Interests in the Company.
(f) Each of the ▇▇▇▇▇▇▇ Members acknowledges and agrees that the
authority and rights granted to RECP in this Article 4 were material
inducements and conditions precedent to RECP's willingness to make its
investment in the Company, and that RECP would have refused to make its
investment absent such authority and such limitations on liability.
27
4.4 Representatives of the Parties.
(a) Whenever in this Agreement or elsewhere it is provided that consent
is required of, a demand shall be made by, or acts shall be performed at the
direction of any of the ▇▇▇▇▇▇▇ Members, all such consents, demands and acts
are to be made, given or performed upon the consent of any of the Persons
listed on Schedule 4.4(a) attached hereto under the heading "Representatives of
the ▇▇▇▇▇▇▇ Members" who shall be deemed vested with the authority of the
▇▇▇▇▇▇▇ Members until such time, if any, as RECP shall receive a notice from
the ▇▇▇▇▇▇▇ Members eliminating any such designation or designating one or more
additional or replacement representatives (in which case the Managing Member
shall update Schedule 4.4(a) as appropriate).
(b) Whenever in this Agreement or elsewhere it is provided that consent
is required of, a demand shall be made by, or acts shall be performed at the
direction of RECP, all such consents, demands and acts are to be made, given or
performed upon the consent of any of the Persons listed on Schedule 4.4(b)
attached hereto under the heading "Representatives of RECP" who shall be deemed
vested with the authority of RECP until such time, if any, as the ▇▇▇▇▇▇▇
Members shall receive a notice from RECP eliminating any such designation or
designating one or more additional or replacement representatives (in which
case the Managing Member shall update Schedule 4.4(b) as appropriate).
4.5 Property Management/Leasing Services.
(a) Concurrently herewith, the Property Owner is entering into the
Property Management Agreement and the Leasing Agreement with the Property
Manager. The Property Manager's rights under the Property Management Agreement
and the Leasing Agreement (including, without limitation, its rights to fees
and commissions) shall be subordinated to the rights of the lenders of the New
Subordinated Debt (or any debt financing that shall replace such debt as a
result of a refinancing or otherwise). RECP shall direct the holders of the New
Subordinated Debt, on a monthly basis during the term of the Property
Management Agreement, to release and pay to Property Manager the full amount of
the fees and reimbursements payable to Property Manager under the terms thereof.
(b) Concurrently herewith, the Property Manager is entering into the
Consulting Agreement with RECP.
(c) Notwithstanding anything to the contrary herein, in the Approved
Leasing Guidelines, the Leasing Agreement, the Property Management Agreement,
the Approved Budget or the Approved Business Plan none of the ▇▇▇▇▇▇▇ Members,
the Property Manager or any of their Affiliates shall cause or authorize the
Property Owner to enter into any Major Lease without the prior written consent
of the Managing Member or to modify the insurance coverage for the Property or
the Company without the prior written consent of the Managing Member.
4.6 Financial Advisor. As long as RECP is the Managing Member, RECP or
any other Person that RECP may designate from time to time including, without
limitation, Credit Suisse First Boston Corporation or its Affiliates
(collectively, "CSFB"), shall be the exclusive financial and sales advisor
engaged by the Company and any of its Subsidiaries for all financings and
capital transactions of the types customarily engaged in by RECP (and/or such
other Person). When arranging a sale, merger, financing, refinancing,
securitization or similar transaction in
28
respect of the Company, any of its Subsidiaries, the Property or all or any
portion of the Company Assets, CSFB shall be entitled to receive from the
Company or such Subsidiary its customary fees commissions and indemnification
for such services.
ARTICLE 5
RIGHTS AND DUTIES OF MEMBERS
5.1 Duties and Obligations of the ▇▇▇▇▇▇▇ Members.
(a) In addition to such duties as are described elsewhere in this
Agreement, and subject to the Management Standard Requirements, the ▇▇▇▇▇▇▇
Members (directly or through the Property Manager) shall (i) prepare and
deliver to RECP a proposed Annual Budget and a proposed Annual Business Plan
for each Budget Year, in accordance with Section 6.3, (ii) deliver (or cause
the Property Manager to deliver) to RECP promptly upon its receipt, copies of
all (x) summonses and complaints served on the Company, any of its
Subsidiaries, any of the ▇▇▇▇▇▇▇ Members, the Property Manager or any of their
Affiliates relating to its management of the Property and (y) notices of
default on any loan or other Indebtedness of the Company or any of its
Subsidiaries or of any Lien against any of the Company Assets, (iii) cause the
Companies, and any Affiliates within their control to take any actions or to
effect any decisions made pursuant to this Agreement, and (iv) notwithstanding
anything herein to the contrary, either of the ▇▇▇▇▇▇▇ Members or RECP may
execute and acknowledge and deliver on behalf of the Companies or any of them,
which execution and delivery is specifically authorized hereby, any
certificates, instruments or documents entered into by any of the Companies
and obtain any necessary consents of any of the Companies in connection with
(x) the execution and closing of the New Subordinated Debt (including, without
limitation, the Agreement of Understanding between Credit Suisse First Boston
Corporation, the Company and other parties, dated as of the date hereof), (y)
the amendment of or consent under the Existing Mortgage Debt, and (z) the
consummation of the Transaction Documents and the transactions described
therein; and (v) manage the company and the Company Assets as described herein.
(b) In addition to its right to revoke any Day-to-Day Management
Obligations or other duties delegated to the ▇▇▇▇▇▇▇ Members or any of the
Affiliates as described in Section 4.1(b), in the event the ▇▇▇▇▇▇▇ Members
shall fail to perform or comply with, or to cause the performance of or
compliance with, any obligation or duty imposed on the ▇▇▇▇▇▇▇ Members or the
Property Manager pursuant to this Agreement and the Property Management
Agreement and, other than with respect to any obligation or duty connected to
compliance with the Loan Documents or Major Leases (in which case such rights
shall be immediate), such failure continues for 10 days after notice thereof
from RECP, then, without limiting any other remedy available to RECP, RECP
shall have the right (but not the obligation), to immediately perform or comply
with, or cause the performance of or compliance with, such obligation, any such
additional cost or expense to be at the cost or expense of the ▇▇▇▇▇▇▇ Members.
5.2 No Conflicts of Interest.
(a) RECP and any owner of a direct or indirect interest in RECP may
engage or invest in any other activity or venture or possess any interest
therein independently or with others whether or not in competition with the
Company. In addition, none of RECP or any
29
owner of a direct or indirect interest in RECP or any other Person employed by,
related to or in any way affiliated with any such Person shall have any duty or
obligation to disclose or offer to the Company or the Members, or obtain for the
benefit of the Company or the Members, any other activity or venture or interest
therein, and none of the Company, the Members, the creditors of the Company or
any other Person having any interest in the Company shall have any claim, right
or cause of action against RECP or any owner of a direct or indirect interest in
RECP, or any other Person employed by, related to or in any way affiliated with,
any such Person by reason of any direct or indirect investment or other
participation, whether active or passive, in any such activity or venture or any
interest therein.
(b) RECP acknowledges that the ▇▇▇▇▇▇▇ Members and their Affiliates own,
invest in and/or manage, market and promote other properties and operate each of
such other properties in the separate interests of the respective owners
thereof, including the ▇▇▇▇▇▇▇ Members and/or their Affiliates, but the ▇▇▇▇▇▇▇
Members specifically covenant to RECP that the ▇▇▇▇▇▇▇ Members and their
Affiliates will at all times during the term of this Agreement conduct such
other ownership, investment and management activities in a manner such that the
Property is not disadvantaged or prejudiced relative to any other property in
which the ▇▇▇▇▇▇▇ Members or any of its Affiliates has any ownership, investment
or management interest or responsibility. The ▇▇▇▇▇▇▇ Members further covenant
to RECP that any goods or services provided to the ▇▇▇▇▇▇▇ Members by, or
obtained by the ▇▇▇▇▇▇▇ Members from, any Affiliate of the ▇▇▇▇▇▇▇ Members or
any entity in which the ▇▇▇▇▇▇▇ Members or any of its Affiliates has any
ownership, investment or management interest or responsibility, for the
operation, management and promotion of the Property, and any agreements,
understandings, or arrangements with respect thereto, shall be provided or made
in a manner such that the Property is treated on a fair and equitable basis
relative to any other property in which the ▇▇▇▇▇▇▇ Members or any of their
Affiliates has any ownership, investment or management interest or
responsibility.
(c) The provisions of this subsection (c) shall be effective (i) only so
long as Property Manager or another ▇▇▇▇▇▇▇ Affiliate is managing the Property
and/or leasing space in the Property on behalf of the Company or, (ii) if a
Trigger Event has occurred for any reason other than as described in clause
(iii) of this sentence, so long as RECP is actively marketing the Property for
sale or a refinancing but in any event for a period of twelve (12) months after
the Trigger Event, or (iii) if a Trigger Event has occurred as a result of the
actions or omissions of ▇▇▇▇▇▇▇ or a ▇▇▇▇▇▇▇ Affiliate under clause (a) of the
definition of Trigger Event as a result of an event described in subsection (c),
(d) or (e) of Section 3.1 of the Option Agreement, under clauses (b), (c) or (d)
of the definition of Trigger Event or under subclauses (1), (2), (3), (4), (5)
(except for a failure of the ▇▇▇▇▇▇▇ Members to purchase the Supplemental Cap as
referenced therein), (6) or (7) in the definition of Trigger Event, so long as
▇▇▇▇▇▇▇ Members or their Affiliates are Members of the Company. Notwithstanding
anything herein to the contrary while this subsection (c) is effective, neither
▇▇▇▇▇▇▇, the ▇▇▇▇▇▇▇ Members nor any of their respective Affiliates, including,
without limitation, the Property Manager, shall (1) solicit any Person (or any
Affiliate of such Person) that is, at the time in question, a tenant leasing
space at the Property (collectively, "Existing Tenant") to relocate and/or lease
or otherwise occupy space in another office building managed or owned by the
▇▇▇▇▇▇▇ Members or any of their Affiliates ("Competing Building"), or (2) enter
into a lease or other occupancy agreement with an Existing Tenant for space in a
Competing Building; provided, however, the foregoing restrictions are subject to
the following provisions of this subsection (c):
30
(i) If a request for proposals ("RFP") is submitted by or on behalf of an
Existing Tenant to owners of office buildings in the greater Los Angeles area
(and if such RFP is submitted to ▇▇▇▇▇▇▇, the ▇▇▇▇▇▇▇ Members or any of their
respective Affiliates, including Property Manager) in connection with the
potential leasing of space by such Existing Tenant, the ▇▇▇▇▇▇▇ Members shall
cause the Property Manager to provide a copy of such RFP to RECP for its
information. If there is functional office space in the Property which is
available for lease to such Existing Tenant (which space may include the
existing space leased by such Existing Tenant together with any other premises
in the Property which is available for lease to such Existing Tenant taking
into account existing binding commitments by the Property Owner to other
tenants of the Property, such as expansion and renewal options in favor of such
other tenants) (collectively referred to herein as the "Available Space"), and
if the Available Space is sufficient to accommodate the space requirements of
the Existing Tenant, including all must-take space to be leased by such
Existing Tenant and, if the proposed lease by such Existing Tenant will have at
least a five year term, including optional expansion space required by such
Existing Tenant in its RFP so long as such optional expansion space does not
exceed twenty percent (20%) of the original premises to be leased by such
Existing Tenant and the expansion option is exercisable only on or after the
third anniversary of the commencement date of such new lease ("Existing Tenant
Space Requirements"), then neither ▇▇▇▇▇▇▇ nor its Affiliates shall respond to
the RFP from such Existing Tenant or enter into a lease agreement or other
occupancy arrangement with such Existing Tenant for space in a Competing
Building; provided, however, if the Existing Tenant has vacated its premises in
the Property at least three (3) months prior to the date on which such Existing
Tenant enters into a lease or other occupancy arrangement for space in a
Competing Building, then thee shall be no prohibition on ▇▇▇▇▇▇▇ or its
Affiliates entering into a lease with such Existing Tenant for space in a
Competing Building;
(ii) If a RFP is submitted by or on behalf of an Existing Tenant to
owners of office buildings in the greater Los Angeles area and if the Property
does not have sufficient Available Space to accommodate the Existing Tenant
Space Requirements, then a ▇▇▇▇▇▇▇ Affiliate may respond to the RFP and propose
terms to such Existing Tenant for a lease in a Competing Building and may enter
into a lease with such Existing Tenant in a Competing Building without any
restriction by any Transaction Document and without any liability or obligation
to Company; provided that (x) the ▇▇▇▇▇▇▇ Members will notify RECP that the
▇▇▇▇▇▇▇ Affiliate intends to respond to such RFP prior to any such response,
(y) the lease with the Existing Tenant is for substantially the same amount of
the initial space, must-take space (if any), and optional expansion space (if
any) as was specified by the Existing Tenant in the RFP and the dates for
delivery of the must-take space (if any) and optional expansion space (if any)
is substantially the same as the dates specified for the delivery of such space
in the RFP, and (z) in connection with the response to such RFP or the
negotiation of such lease in the Competing Building, the ▇▇▇▇▇▇▇ Affiliate will
not use any information available to ▇▇▇▇▇▇▇ or its Affiliates as a result of
their roles as Members of the Company or as the Property Manager or as leasing
agent for the Property if such information is not then generally available to
the public ("Confidential Information"); and
31
(iii) If a RFP is submitted by or on behalf of an Existing Tenant for the
renewal of its lease at the Property (whether or not such RFP has been submitted
to the owners of other office buildings in the greater Los Angeles area), and if
at any time RECP notifies ▇▇▇▇▇▇▇ or any of its Affiliates that it elects not to
pursue a lease renewal with such Existing Tenant, or if RECP fails for a period
of at least 60 days after a written request by ▇▇▇▇▇▇▇ or its Affiliates to
authorize ▇▇▇▇▇▇▇ or its Affiliates (or another representative of RECP) to
respond to such RFP or RECP fails for a period of at least 30 days to authorize
▇▇▇▇▇▇▇ or its Affiliates (or another representative of RECP) to respond to an
offer made by such Existing Tenant for the renewal of its lease of which RECP
has been given notice, then a ▇▇▇▇▇▇▇ Affiliate may submit a proposal to such
Existing Tenant for a lease in a Competing Building and may enter into a lease
with such Existing Tenant in a Competing Building without any restriction by
any Transaction Document and without any liability or obligation to Company;
provided that (i) the ▇▇▇▇▇▇▇ Members will notify RECP that the ▇▇▇▇▇▇▇
Affiliate intends to respond to such RFP and (ii) in connection with the
negotiation of such lease in the Competing Building, the ▇▇▇▇▇▇▇ Affiliate will
not use any Confidential Information and provided further that the net effective
rent per square foot of rentable area to be paid by such Existing Tenant in the
Competing Building (taking into consideration all incentives provided to the
Existing Tenant in such lease) shall not be more than the net effective rent per
square foot last offered by RECP in connection with the renewal of such Existing
Tenant's lease at the Property.
5.3 Limitation on Member Liability; Indemnification.
(a) Except as expressly described in this Agreement or any other
Transaction Document and subject to its compliance with the provisions of this
Agreement and the other Transaction Documents (including, without limitation,
failure to meet the Management Standard Requirements), no Member or its
partners, officers, directors or members shall be liable, responsible or
accountable in damages or otherwise to the Company, any third party or to any
other Member for (i) any act performed within the scope of the authority
conferred on such Member by this Agreement, except for an actin constituting
fraud and except for the gross negligence or willful misconduct of such Member
in carrying out its obligations hereunder, (ii) such Member's failure or refusal
to perform any act, except an act required by the terms of this Agreement, (iii)
such Member's performance of, or failure to perform, any act on the reasonable
reliance on advice of legal counsel to the Company or (iv) the negligence,
dishonesty or bad faith of any agent, consultant or broker of the Company
selected, engaged or retained in good faith by the Company in accordance with
this Agreement.
(b) In any threatened, pending or completed action, suit or proceeding, to
the fullest extent permitted by law, each Member and its partners, officers,
directors and members shall be fully protected, indemnified and held harmless
by the Company against all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, proceedings, costs, expenses and disbursements of any
kind or nature whatsoever (including, without limitation, reasonable attorneys'
fees, costs of investigation, fines, judgments and amounts paid in settlement,
actually incurred by such Member in connection with such action, suit or
proceeding) by virtue of its status as a Member or with respect to any action or
omission taken or suffered in good faith, other than liabilities and losses
resulting from the fraud, gross negligence or willful misconduct of such Member;
provided, however, such Member shall not be so indemnified for any acts
determined by any adjudicative procedure to be in contravention of an express
term of
32
this Agreement or in breach of its fiduciary duties (subject to any applicable
waivers provided for herein) or for which such party is not entitled to
indemnification as provided in this Agreement. The indemnification provided by
this Section 5.3(b) shall be recoverable only out of the assets of the Company.
(c) To the fullest extent permitted by law, each Member shall defend and
indemnify the Company and the other Members against, and shall hold it and them
harmless from, any damage, loss, liability, or expense, including reasonable
attorneys' fees, as and when incurred by the Company or the other Members in
connection with or resulting from such indemnifying Member's fraud, gross
negligence or willful misconduct. The Managing Member shall have the right to
offset any amounts that are distributable or payable to any Member or its
Affiliates to satisfy such Member's or Affiliate's indemnification obligations
set forth in this Section 5.3(c).
5.4 Compensation of Members and their Affiliates. Except as set forth or
contemplated herein, in any other Transaction Document or in any of the Loan
Documents, or as may hereafter be approved by the Managing Member in the case
of the ▇▇▇▇▇▇▇ Members or any other Members of the Company, no Member, nor any
of their respective Affiliates, shall be entitled to compensation from the
Company in connection with any matter that may be undertaken in connection with
the fulfillment of its duties and responsibilities hereunder or under any
Transaction Documents. Without derogating from the generality of the above
statement, each of the Members acknowledges and consents to the existence and
terms of each of the following agreements or arrangements with Members or the
Affiliates; the Property Management Agreement, the Leasing Agreement, the
Consulting Agreement, the New Subordinated Debt, the Equity Placement Fee and
the BGHS Note.
5.5 Dealing with Members. The fact that a Member, an Affiliate of a
Member, or any officer, director, employee, partner, member or agent of a
Member, is directly or indirectly interested in or connected with any Person or
individual employed by the Company to render or perform a service, or from or
to whom the Company may buy or sell any property or have other business
dealings, shall not prohibit the Company from employing such Person or from
dealing with him or it on customary terms and at competitive rates of
compensation, and neither the Company nor any of the other Members shall have
any right in or to any income or profits derived therefrom by reason of this
Agreement. The foregoing is not intended to modify the restrictions on the
authority of the RECP (in its capacity as the Managing Member) or the ▇▇▇▇▇▇▇
Members (whether or not in their capacity as Property Manager) in Article 4 or
elsewhere in this Agreement.
5.6 Use of the Company Property. Except as described herein, no Member
shall make use of the property or funds of the Company, or assign its rights to
specific Company property, other than for the business or benefit of the
Company.
5.7 Designation of Tax Matters Member. RECP shall, among other duties and
responsibilities, be the "Tax Matters Member" of the Company, with the rights
and responsibilities set forth in Section 6231(a)(7) of the Code and in any
comparable provision of state or local tax law for a "tax matters partner" of
a partnership; provided, that in no event shall such designation cause the
Company to be deemed other than a limited liability company organized and
governed under the Act or RECP to be deemed to be anything other than a Member
of a Company. Each Member hereby approves such designation and agrees to
33
execute, certify, acknowledge, deliver, swear to, file and record at the
appropriate public offices such documents as may be deemed necessary or
appropriate to evidence such approval. To the extent and in the manner provided
by applicable Code sections and regulations thereunder, RECP (a) shall furnish
the name, address, profits interest and taxpayer identification number of each
Member to the IRS and (b) shall inform each Member of administrative or
judicial proceedings for the adjustment of Company items required to be taken
into account by a Member for income tax purposes. Subject to the other
provisions of this Agreement, RECP shall not take any actions as a Tax Matters
Member that are materially adverse to the interests of the ▇▇▇▇▇▇▇ Members and
will not enter into any agreement with any Governmental Authority that is
materially adverse to the interests of the ▇▇▇▇▇▇▇ Members, in each case,
without the ▇▇▇▇▇▇▇ Members' prior written consent, which consent shall not be
unreasonably withheld.
5.8 RECP as Lender. The Members acknowledge that the New Subordinated Debt
is provided to the Senior Mezzanine Borrower by an Affiliate of RECP. The
Members acknowledge that RECP or one of its Affiliates or designees (for
purposes of this Section 5.8, references to "RECP" shall include RECP together
with any such Affiliates or designees), may in the future make additional loans
(directly or through the acquisition of a portion of any outstanding
Indebtedness) to the Company or to any of its Subsidiaries in order to
facilitate the operation of the Property by the Company or any of its
Subsidiaries or otherwise, and as a result, the interests of RECP, in its
capacity as a lender, may be different than, or in conflict with, the interests
of RECP as a Member or the interests of the ▇▇▇▇▇▇▇ Members or the interests of
the Company or any of its Subsidiaries. In recognition of the foregoing and in
consideration of RECP providing or facilitating any such loan, the Members
acknowledge and agree that RECP is and will be entitled to enforce its rights
under any existing or future loan (and ancillary security) documents with the
Company and will be entitled to pursue any and all remedies to which it is
entitled (including calling a default under, accelerating or foreclosing on any
collateral securing, such loan) even if doing so would be detrimental to or
create a conflict with the Company, its Subsidiaries or any of its or their
Members (including, without limitation, by constituting a Trigger Event), and
each of the ▇▇▇▇▇▇▇ Members and other signatories hereto waives, to the fullest
extent permitted by law, (i) any right to object to such enforcement, (ii) any
right to assert a claim against RECP as a result of such conflict of interest
and (iii) any claim for a breach of fiduciary duty, duty of loyalty, lender
liability, equitable subordination or other claims relating to or arising from
the fact that RECP would have an interest as both a creditor and a Member of the
Company.
5.9 RECP Exclusivity Period. Notwithstanding anything herein or in any
other Transaction Document to the contrary, during any Suspension Period and at
any time following the date upon which the Call Option shall have lapsed or
otherwise expired, RECP will have the exclusive right (without any direct or
indirect interference by ▇▇▇▇▇▇▇, the ▇▇▇▇▇▇▇ Members of or any of their
Affiliates or any competition from the ▇▇▇▇▇▇▇ Members or any of their
Affiliates in the real estate and financial markets) to market the Property for
sale or seek refinancing or recapitalization alternatives for the Property or
the Company or any Subsidiary (the period during which RECP will have such
exclusive right being hereinafter referred to as the "RECP Exclusivity Period").
RECP shall keep the ▇▇▇▇▇▇▇ Members informed at regular intervals of the status
of its activities and shall copy the ▇▇▇▇▇▇▇ Members on all written materials
withe respect to the sale or refinancing of the Property or any recapitalization
of the Company or any Subsidiary during any RECP Exclusivity Period.
34
5.10 Character of Managing Member's Investment. The ▇▇▇▇▇▇▇ Members and
their respective Affiliates acknowledge and agree that the relationship and
transactions described in this Agreement and the other Transaction Documents are
intended to be, and shall be interpreted and construed as, that of members in a
limited liability company, and not that of creditor-debtor, lender-borrower, or
any similar characterization. The acquisition by RECP of the Managing Member
Interests in the Company is intended to be an absolute acquisition of such
ownership interests in the Company, and indirectly in the Property, in effect as
well as in form. Neither this Agreement, the other Transaction Documents,
nor any instruments of conveyance to be executed and delivered in connection
herewith or therewith are intended to serve or operate as a mortgage, equitable
mortgage, deed of trust, security agreement, trust conveyance, financing, or
trust arrangement or any kind, nor as a preference or fraudulent conveyance
against any creditors, directly or indirectly, of the ▇▇▇▇▇▇▇ Members or any of
their respective Affiliates. The ▇▇▇▇▇▇▇ Members and their respective Affiliates
acknowledge and agree that upon full execution of this Agreement, the other
Transaction Documents and said conveyancing instruments, none of them will have
any legal or equitable interest (including, without limitation, any right of
redemption, except pursuant to the Option Agreement) or any other claim or
interest in the Managing Member Interests so acquired by RECP. The ▇▇▇▇▇▇▇
Members and their respective Affiliates are sophisticated and experienced in the
field of real estate development, operation, disposition, and financing. In
connection with the negotiation of the terms of this Agreement, the other
Transaction Documents and other documents contemplated hereby and thereby,
including evaluating the income tax consequences thereof to themselves and the
rights and remedies of parties hereto, the ▇▇▇▇▇▇▇ Members and their respective
Affiliates have been represented by competent legal counsel and accountants of
their choice. The ▇▇▇▇▇▇▇ Members and their respective Affiliates have discussed
with their legal counsel the doctrines of "clogging of the equity of redemption"
and "disguised mortgages" and understand that such doctrines have sometimes been
alleged to apply in certain cases to delay or frustrate enforcement of
conveyancing documents and/or transactions of the type contemplated hereby. The
▇▇▇▇▇▇▇ Members and their respective Affiliates have been advised by their
counsel that said doctrines and similar claims should not be applicable in
instances where the intent of the parties thereto and/or the economic substance
of the transactions engaged in by such parties is inconsistent with any
recharacterization as a debtor-creditor relationship or secured loan
transaction. The ▇▇▇▇▇▇▇ Members and their respective Affiliates acknowledge and
agree that RECP would not have entered into the transactions contemplated hereby
if RECP were only to be considered a lender of any kind, and that the economic
substance of the transactions contemplated hereby are different than those which
would have been agreed to if RECP had been willing to act as a secured lender.
The ▇▇▇▇▇▇▇ Members and their respective Affiliates hereby covenant and agree
that none of them shall contest the validity, enforceability or characterization
of the transactions contemplated by this Agreement or the other Transaction
Documents. All Members and their respective Affiliates shall support the intent
expressed herein that the acquisition by RECP of its Managing Member Interests
constitutes an absolute acquisition and does not create or constitute a hidden
mortgage, equitable mortgage, trust, financing device or arrangement, security
interest or the like, and the ▇▇▇▇▇▇▇ Members and their respective Affiliates
hereby irrevocably and absolutely waive any claim, known or unknown, to the
contrary and the right to assert same. The ▇▇▇▇▇▇▇ Members and their respective
Affiliates have been advised as to the legal effect of the covenants,
admissions, and waivers contained in this Section 5.10 and execute this
Agreement with full knowledge and recognition of the consequences hereof.
35
5.11 ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP. The ▇▇▇▇▇▇▇ Members recognize that any
liability, obligation or expenses in connection with the rental credits
described in the December 17, 2001 letter from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ to ▇▇▇▇▇▇▇
▇▇▇▇▇▇ at ▇▇▇▇▇▇▇ Partners shall be an obligation, liability and expense solely
of the ▇▇▇▇▇▇▇ Members. The ▇▇▇▇▇▇▇ Members hereby indemnify the Companies and
RECP from any such liabilities, obligations and expenses.
5.12 Management of Subsidiaries. The Managing Member shall at all times
have the right to appoint all directors (including, without limitation, the
"Independent Directors") of all the Subsidiaries of the Company. The Managing
Member shall cause such directors to manage the Subsidiaries of the Company and
make decisions and take actions only to the extent such decisions and actions
are consistent with and in compliance with the provisions of the Transaction
Documents.
ARTICLE 6
BOOKS AND RECORDS: ANNUAL REPORTS; EXPENSES AND OTHER MATTERS
6.1 Books of Account. Subject to the Management Standard Requirements, at
all times during the continuance of the Company, the ▇▇▇▇▇▇▇ Members shall keep
or cause to be kept true and complete books of account in which shall be entered
fully and accurately each transaction of the Company. Such books shall be kept
on the basis of the Fiscal Year in accordance with the accrual method of
accounting, and shall reflect all Company transactions in accordance with
generally accepted accounting principles.
6.2 Availability of Books of Account. All of the books of account referred
to in Section 6.1, together with an executed copy of this Agreement and the
Certificate of Formation, and any amendments thereto, shall at all times be
maintained at the principal office of the ▇▇▇▇▇▇▇ Members or such other location
as the Managing Member may propose, and upon reasonable notice to the Managing
Member, shall be open to the inspection and examination of each other Member or
its representatives during reasonable business hours.
6.3 Annual Reports and Statements; Annual Budgets and Annual Business
Plans.
(a) Subject to the Management Standard Requirements, for each Fiscal Year,
the ▇▇▇▇▇▇▇ Members shall send to each other Member, no later than the earlier
of (I) five days prior to the date such reports are required to be delivered to
the lender under the Loan Documents; or (II) within forty (40) days after the
end of such Fiscal Year, an annual report of the Company and its Subsidiaries
including an annual balance sheet, profit and loss statement and a statement of
changes in financial position, and a statement showing distributions to the
Members, all prepared in accordance with generally accepted accounting
principles consistently applied and audited by the Company's independent public
accountants, (which initially shall be ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP and may be replaced
by RECP at any time, provided, however, that such replacement shall be a member
of the "Big 5" accounting firms and the consent of the ▇▇▇▇▇▇▇ Members, not to
be unreasonably withheld, shall be required for such replacement, provided,
further, however, that the consent of the ▇▇▇▇▇▇▇ Members shall not be required
after the occurrence of a Trigger Event, during a Suspension Period or if ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, LLP files for Bankruptcy); and a statement showing allocations to the
Members of taxable income, gains, losses, deductions and credits, as prepared by
such accountants. For each quarter, the ▇▇▇▇▇▇▇ Members shall send to each other
Member, no later than the earlier or (I) five days prior to the
36
date such reports are required to be delivered to the lender under the Loan
Documents; or (II) within forty five (45) days after the end of such quarter,
quarterly financial statements of the Company and its Subsidiaries including a
quarterly balance sheet, profit and loss statement and a statement of changes
in financial position, and a statement showing distributions to the Members,
all prepared in accordance with generally accepted accounting principles
consistently applied, which financial statements shall be accompanied by a
certificate of the members of the ▇▇▇▇▇▇▇ Members certifying as to the accuracy
and completeness thereof and confirming that to their knowledge no Trigger
Event has occurred (or, if to their knowledge an Trigger Event has occurred,
explaining the circumstances giving rise thereto). In addition, the ▇▇▇▇▇▇▇
Members shall send, or cause the Property Manager to send, to each Member not
later than the earlier of (I) five days prior to the date such reports are
required to be delivered to the lender under the Loan Documents; or (II) within
thirty (30) days after the end of each month of each Fiscal Year (i) a monthly
report setting forth the financial and operating information listed on Schedule
6.3(a) hereto and such other information as RECP may reasonably require, (ii)
all completed IRS Schedules K-1 for the review and approval of the Managing
Member no later than ten (10) days prior to the due date of such Schedules, but
in no event later than February 15 of each year in draft form and February 28
of each year in final form and (iii) such other information concerning the
Company and reasonably requested by any Member as is necessary for the
preparation of such Member's federal, state and local income or other tax
returns. In addition, the ▇▇▇▇▇▇▇ Members shall prepare and deliver to the RECP
and the lenders under the Loan Documents and other loan documents to which the
Company or any Subsidiaries is a party all reports and statements required by
such lenders within the time periods prescribed therefor. All reports delivered
pursuant to this Section 6.3(a) shall be delivered in hard copy and, if
available, electronic format.
(b) Attached as Schedule 6.3(b) are the Approved Budget and the Approved
Business Plan (including the Approved Leasing Guidelines) for the remainder of
the 2002 Budget Year. Subject to the Management Standard Requirements, not
later than the earlier of (i) 75 days prior to the date the Annual Budget or
Annual Business Plan (as the case may be) is required to be delivered to the
lenders under the Loan Documents or (ii) November 15, with respect to each
subsequent Budget Year (i.e., after 2002) the ▇▇▇▇▇▇▇ Members shall prepare and
submit to RECP for the Budget Year in question, a proposed Annual Budget and a
proposed Annual Business Plan for the Company. Neither the proposed Annual
Budget nor the proposed Annual Business Plan shall be deemed accepted by RECP
in the absence of its express written approval. Not later than thirty (30) days
after receipt by RECP of a proposed Annual Budget or Annual Business Plan (or
such longer period as RECP may reasonably request on notice to the ▇▇▇▇▇▇▇
Members), RECP may deliver a notice (an "Objection Notice") to the ▇▇▇▇▇▇▇
Members stating that RECP objects to any information contained in or omitted
from such proposed Annual Budget or Annual Business Plan and setting forth the
nature of such objections. Failure of RECP to deliver an Objection Notice shall
be deemed rejection of the ▇▇▇▇▇▇▇ Members proposed Annual Budget and/or Annual
Business Plan in its entirety. Upon receipt of any Objection Notice, the
▇▇▇▇▇▇▇ Members shall modify the proposed Annual Budget or Annual Business
Plan, taking into account RECP's objections, and shall resubmit the same to
RECP for its approval within 15 days thereafter, and RECP may deliver further
Objection Notices (if any) within 15 days thereafter (in which event, the
re-submission and review process described above in this sentence shall
continue until the Annual Budget or Annual Business Plan in question is
accepted and consented to by RECP). As to any portion of a proposed Annual
Budget (but not an Annual Business Plan) that is the subject of an Objection
Notice (or which is
37
deemed rejected by RECP), the Approved Budget (but not the Approved Business
Plan) for the immediately preceding year shall be deemed to control pending
resolution by RECP of the disputed items to the extent it is applicable
thereto, provided, however, subject to the Loan Documents, Nondiscretionary
Expenses shall not be subject to the limitations in the prior Approved Budget.
For this purpose, "Nondiscretionary Expenses" means real estate taxes, debt
service payments and any other existing third party obligations payable under
existing contracts approved by RECP (e.g., insurance premiums). Subject to the
Loan Documents, there shall be no expenditures for capital items or
improvements except in case of an emergency or as approved by RECP during the
period for which there is no Approved Budget for capital items for such period.
6.4 Accounting Expenses. All out-of-pocket expenses payable to Persons who
are not Affiliates of the ▇▇▇▇▇▇▇ Members in connection with the keeping of the
books and records of the Company and the preparation of audited or unaudited
financial statements and federal and local tax and information returns required
to implement the provisions of this Agreement or required by any governmental
authority with jurisdiction over the Company shall be borne by the Company as an
ordinary expense of its business.
6.5 Casualty/Condemnation.
(a) In the event of any Casualty or Condemnation, the Company shall cause
the Property Owner to give prompt notice thereof to RECP. Subject to the terms
of any of the Loan Documents, RECP may settle and adjust any claims and the
reasonable expenses incurred by them in the adjustment and collection of such
proceeds shall be reimbursed by the Company to RECP upon request therefor,
provided, however, that any such settlement (solely with respect to Casualty)
shall be subject to the reasonable approval of the ▇▇▇▇▇▇▇ Members if the
settlement and adjustment is for an amount less than the maximum amount of
insurance available for settlement and such insurance proceeds amount is less
than the amount required to rebuild or restore the Property to its prior
condition.
(b) Subject to the Loan Documents, if (I) any Casualty or Condemnation
occurs as to which, in the reasonable judgment of RECP, (x) the Property can be
restored to an economic unit not less useful than existed prior to the Casualty
or Condemnation within a twelve-month period after the occurrence of the
Casualty or Condemnation (or within such longer period as corresponds to the
period for which the Company's business interruption insurance applies), and (y)
the loss or damage to the Property in connection with any Casualty or the
proceeds in connection with any Condemnation is not in excess of $10 million; or
(II) RECP otherwise elects to cause the Company to restore the Property, then,
provided that no Trigger Event shall have been declared, the proceeds of such
Casualty or Condemnation (after reimbursement of any reasonable out of pocket
expenses incurred by RECP and/or RECP in connection therewith) after receipt
thereof by the Company shall be available, to pay or to reimburse the Company
for the cost of restoring, repairing, replacing or rebuilding the Property or
part thereof subject to the Casualty or Condemnation, as provided for below.
Subject to the Loan Documents Casualty or Condemnation proceeds not required for
restoring, repairing, replacing or rebuilding (including any reserves) the
Property as contemplated herein, and as determined at RECP's sole discretion,
shall constitute "Net Disposition Proceeds", and shall be distributed pursuant
to Section 10.3.
38
6.6 Litigation. The ▇▇▇▇▇▇▇ Members (in their capacity as the Property
Manager or otherwise) shall give the Managing Member prompt written notice of
any litigation or governmental proceedings pending or, to the Knowledge of the
▇▇▇▇▇▇▇ Members, threatened against the Company or any Subsidiary or the
Property Manager.
6.7 Notice of Trigger Event. The ▇▇▇▇▇▇▇ Members shall promptly advise the
Managing Member or any change in the condition, financial or otherwise, of the
Company or any Subsidiary which has had or could reasonably be expected to have
any Material Adverse Effect, or of the occurrence of any Trigger Event or the
commencement or termination of a Suspension Period or of any event that, with
the giving of notice or the passage of time, could reasonably become a Trigger
Event or cause the commencement or termination of a Suspension Period.
6.8 Conduct of Business. Notwithstanding any other provision hereof, all
times the Company shall take all actions to comply and to cause each of its
Subsidiaries to comply with each of the covenants and restrictions set forth on
Schedule 6.8 (attached hereto) and not amend any of the foregoing.
6.9 Membership Restrictions. At all times the ▇▇▇▇▇▇▇ Members shall comply
with the covenants and restrictions set forth in Schedule 6.9 attached hereto
and the comparable provision of their Organizational Documents on the Effective
Date, and not to amend any of the foregoing.
39
ARTICLE 7
CAPITAL CONTRIBUTIONS
7.1 Initial Cash Equity Contributions of the Members. The initial capital
contributions of the Members are set forth in Schedule 3.3. The initial
contribution of MP represents 25% limited liability company interests in Junior
Mezzanine Borrower and, the initial contribution of BGHS represents 75% limited
liability company interests in Junior Mezzanine Borrower. The initial capital
contribution of RECP includes $60,000,000 contributed in exchange for the
Managing Member Interests. The Company shall not issue certificates to the
Members representing the Membership Interest held by each Member. The Members
will agree on the fair market value of the interests contributed by the ▇▇▇▇▇▇▇
Members.
7.2 No Obligation. Except as required by the Act or as expressly set forth
in this Agreement, no Member shall have any personal liability whatsoever in
such Member's capacity as a Member, whether to the Company, to any of the other
Members, to the creditors of the Company or to any other third party, for the
debts, liabilities, commitments or other obligations of the Company or for any
losses of the Company. No Member, in his capacity as such, shall be required to
lend any funds to the Company, to make any contribution of capital or any other
payments to the Company, except as otherwise expressly required by the Act or by
this Agreement. Neither any loan made nor any service performed by any Member to
or for the benefit of the Company shall be deemed to constitute a contribution
to the capital of the Company for any purpose.
7.3 Additional Capital Contributions.
(a) The Company will fund all future capital requirements, relating to it
and its Subsidiaries (including, without limitation, any required capital
expenditures, leasing costs, debt service or operating shortfalls) from
available cash flow or any reserves it will create for such purpose. In the
event that the Company or its Subsidiaries require additional capital (after
having exhausted the funds available to it during the relevant period) to pay
debt service owing pursuant to, or otherwise cure or avoid a default under, any
of the Loan Documents or to cover real estate taxes, any other operating
expenses, or to make any capital expenditures (including, without limitation, to
fund the costs of any environmental remediation) or other disbursements to third
parties that the Managing Member determines in good faith are necessary to
preserve the Property's competitive position or value or to protect it from
waste, the Managing Member may notify the ▇▇▇▇▇▇▇ Members of the additional
amount of capital required by the Company (the "Additional Capital Required"),
and, within 20 Business Days of such notice, the ▇▇▇▇▇▇▇ Members may, at their
sole discretion, make an additional Capital Contribution to the Company (a
"▇▇▇▇▇▇▇ Member Additional Capital Contribution") or notify the Managing Member
of their decision not to do so. A ▇▇▇▇▇▇▇ Member's failure to notify the
Managing Member of its decision to make a ▇▇▇▇▇▇▇ Member Additional Capital
Contribution within such 10 Business Day period shall be deemed to be a
notification that such ▇▇▇▇▇▇▇ Member(s) has decided not to make any such
Additional Capital Contribution. Any amounts so contributed to the Company
pursuant to the ▇▇▇▇▇▇▇ Member Additional Capital Contribution shall be added to
the relevant ▇▇▇▇▇▇▇ Member's Capital Account. In the event the ▇▇▇▇▇▇▇ Members
fail to make the ▇▇▇▇▇▇▇ Member Additional Capital Contributions in an amount
equal to the Additional Capital Required within such 20 Business Days' period,
RECP may, at its sole discretion, make an additional Capital Contribution (the
"RECP Additional Capital Contribution") in an amount equal to any portion of the
Additional Capital Required not contributed by the ▇▇▇▇▇▇▇ Members.
40
(b) In addition, each of the ▇▇▇▇▇▇▇ Members shall have the right (but not
the obligation) to make a ▇▇▇▇▇▇▇ Member Additional Capital Contribution for the
purpose of curing New Subordinated Debt or Existing Mortgage Debt defaults at
any time at least two Business Days prior to the expiration of any applicable
cure period in respect of such defaults.
(c) RECP shall not be entitled to make any Additional Capital Contribution
except as provided in section 7.3(a) above, provided, however, that in the event
of a payment that the Managing Member determines, in good faith, to be an
emergency (e.g., an expense necessary to prevent the incurrence by the Company
of penalties or late fees, or to preserve human health and/or safety), RECP may
make such contribution and provide the ▇▇▇▇▇▇▇ Members with notice of such
contribution promptly (which notice will specify the amount of the proposed
contribution and the purpose for which the contribution is being made) after it
is made. Immediately upon receiving notice that RECP has funded any emergency
contribution, the ▇▇▇▇▇▇▇ Members will have ten Business Days to contribute to
the Company funds necessary to enable the Company to reimburse RECP for any such
emergency contribution together with interest thereon at 25% per annum
(compounded monthly). If the ▇▇▇▇▇▇▇ Members do not make such payment within
such ten Business Day period, the amount so contributed by RECP shall be
considered an Additional Capital Contribution of RECP.
7.4 Capital of the Company. Except as expressly provided for in this
Agreement, no Member shall be entitled to withdraw or receive any interest or
other return on, or return of, all or any part of its Capital Contribution, or
to receive any Company Assets (other than cash) in return for its Capital
Contribution provided that RECP shall be entitled, in its sole and absolute
discretion, to make a distribution to it at any time of the Equity Reserve. No
Member shall be entitled to make a Capital Contribution to the Company except as
expressly authorized or required by this Agreement.
ARTICLE 8
CAPITAL ACCOUNTS
8.1 Establishment and Determination of Capital Accounts. A separate
Capital Account shall be established for each Member on the books of the Company
initially reflecting an amount equal to such Member's initial Capital
Contribution pursuant to Section 3.3. Each Member's Capital Account shall be:
(a) increased by the amount of any cash subsequently contributed to the
capital of the Company by such Member as an Additional Capital Contribution
consistent with Article 7 and the fair market value of any property (net of any
liabilities secured by the property that the Company assumes or takes subject
to) contributed by the Member in accordance with this Agreement and any income
or gain allocated to the Member in accordance with this Agreement;
(b) decreased by the amount of cash and the fair market value of any
property (net of any liabilities secured by the property that the Company
assumes or takes subject to) distributed to the Member, by any losses and
deductions of the Company allocated to such Member in accordance with this
Agreement, and by any expenditures under Code Section 705(a)(2)(B).
41
(c) in all respects, the Member's Capital Accounts shall be determined in
accordance with the detailed capital accounting rules set forth in Treasury
Regulations Section 1.704-l(b)(2)(iv) and shall be adjusted by the Tax Matters
Member upon the occurrence of certain events as provided in Treasury Regulations
Section 1.704-l(b)(2)(iv)(f).
(d) A transferee of all (or a portion) of a Membership Interest shall
succeed to the Capital Account (or portion of the Capital Account) attributable
to the transferred Membership Interest.
8.2 Negative Capital Accounts. Except as may be required by the Act or any
other applicable law, no Member shall be required to pay to the Company or any
other Member any deficit or negative balance which may exist from time to time
in such Member's Capital Account.
8.3 Company Capital. Except as described in this Agreement, no Member
shall be paid interest on any Capital Contribution to the Company or on such
Member's Capital Account, and no Member shall have any right (a) to demand the
return of such Member's Capital Contribution or any other distribution from the
Company (whether upon resignation, withdrawal or otherwise), except upon
dissolution of the Company pursuant to Article XII hereof, or (b) to cause a
partition of the Company Assets.
ARTICLE 9
ALLOCATIONS
9.1 Allocations of Income and Loss.
(a) Net Income. For each Fiscal Year, Net Income of the Company shall be
allocated as follows:
(i) first, to the ▇▇▇▇▇▇▇ Members to the extent of and in proportion to
Net Losses previously allocated under Section 9.1(b)(iv) that have not been
previously offset by this Section 9.1(a)(i);
(ii) next, to RECP to the extent of Net Losses previously allocated
under Section 9.1(b)(iii) that have not been previously offset by this
Section 9.1(a)(ii);
(iii) next, to RECP to the extent of the Managing Member Return
distributed pursuant to Article 10; provided that the cumulative amount of
Net Income allocated under this Section 9.1(a)(iii) shall in no event
exceed the difference between the Managing Member Return and the RECP
Investment, calculated as of the date of the allocation; and
(iv) next, to the ▇▇▇▇▇▇▇ Members to the extent of and in proportion to
Net Losses previously allocated under Section 9.1(b)(ii) that have not been
previously offset by this Section 9.1(a)(iv);
(v) next, to the ▇▇▇▇▇▇▇ Members, pro rata in accordance with their
Percentage Interests.
42
(b) Net Loss. For each Fiscal Year, Net Loss of the Company shall be
allocated as follows:
(i) first, to the ▇▇▇▇▇▇▇ Members to the extent of and in
proportion to Net Income previously allocated under Section 9.1(a)(v) that
has not been previously offset by this Section 9.1(b)(i);
(ii) next, to the ▇▇▇▇▇▇▇ Members, pro rata in accordance with
their Percentage Interests, until their Capital Account balances are
reduced to zero;
(iii) next, to RECP until its Capital Account balance is reduced to
zero; and
(iv) next, to the ▇▇▇▇▇▇▇ Members pro rata in accordance with their
Percentage Interests.
9.2 Regulatory Allocations.
Notwithstanding anything herein to the contrary, in the event any Member
unexpectedly receives any adjustments, allocations or distributions described
in paragraphs (b)(2)(ii)(d)(4), (5) or (6) of Section 1.704-1 of the
regulations under the Code, there shall be specially allocated to such Member
such items of Company income and gain, at such times and in such amounts as
will eliminate as quickly as possible that portion of any deficit in its
Capital Account caused or increased by such adjustments, allocations or
distributions.
9.3 Deficits.
Notwithstanding any other provision of this Agreement, taxable loss (or
items of deduction) as computed for book purposes shall not be allocated to a
Member to the extent that the Member has or would have, as a result of such
allocations, a deficit Adjusted Capital Account balance. Any taxable loss (or
items of deduction) as computed for book purposes which otherwise would be
allocated to a Member, but which cannot be allocated to such Member because of
the application of the immediately preceding sentence, shall instead be
allocated to the other Members. In the event any Member has a deficit Adjusted
Capital Account balance at the end of any Fiscal Year, each such Member shall
be specially allocated items of Company income and gain in the amount of such
excess as quickly as possible, provided, that an allocation pursuant to this
Section 9.3 shall be made only if and to the extent that a Member would have a
deficit Adjusted Capital Account balance after all other allocations provided
for in this Article IX have been tentatively made as if Section 9.2 and this
Section 9.3 were not in this Agreement.
9.4 Certain Tax Matters.
All items of income, gain, loss, deduction and credit of the Company shall
be allocated among the Members for Federal, state and local income tax purposes
consistent with the manner that the corresponding constituent items of Net
Income (Loss) shall be allocated among the Members pursuant to this Agreement,
except as may otherwise be provided herein or by the Code.
9.5 Special Allocations.
43
(a) Notwithstanding the other provisions of this Article IX, net income,
net gain, and net loss of the Company (or items of income, gain, loss,
deduction, or credit, as the case may be) shall be allocated in accordance with
the following provisions of this Section 9.5 to the extent such provisions shall
be applicable.
(i) Nonrecourse Deductions of the Company for any Fiscal Year shall
be specially allocated to the Members in proportion to each such Member's
Capital Contributions. Member Nonrecourse Deductions of the Company for any
Fiscal Year shall be specially allocated to the Member who bears the
economic risk of loss for the liability in question. The provisions of this
Section 9.5(i) are intended to satisfy the requirements of Regulations
sections 1.704-2(e)(2) and 1.704-2(i)(1) and shall be interpreted in
accordance therewith for all purposes under this Agreement.
(ii) If there is a net decrease in the Minimum Gain of the Company
during any Company Fiscal Year, each Member shall be specially allocated
items of Company income and gain for such year equal to that Member's share
of the net decrease in Minimum Gain, within the meaning of Regulations
section 1.704-2(g)(2), to the extent required by the Regulations. The
provisions of this Section 9.5(ii) are intended to comply with the Minimum
Gain chargeback requirements of Regulations section 1.704-2(e) and shall be
interpreted in accordance therewith for all purposes under this Agreement.
(iii) If there is a net decrease in Member Nonrecourse Debt Minimum
Gain during any Fiscal Year, each Member that has a share of such Member
Nonrecourse Debt Minimum Gain, determined in accordance with Regulations
section 1.704-2(i)(5), as of the beginning of such year shall be specially
allocated items of Company income and gain for such year (and, if
necessary, for succeeding years) equal to such Member's share of the net
decrease in Member Nonrecourse Debt Minimum Gain, to the extent required by
the Regulations. The provisions of this Section 10.5(iii) are intended to
comply with the member Nonrecourse Debt Minimum Gain chargeback requirement
of Regulations section 1.704-2(i)(4) and shall be interpreted in accordance
therewith for all purposes under this Agreement.
(iv) Any item of income, gain, loss and deduction with respect to any
property (other than cash) that has been contributed by a Member to the
capital of the Company or which has been revalued for Capital Account
purposes pursuant to Regulation Section 1.704-1(b)(2)(iv) shall be
allocated among the Members for income tax purposes under Code Section
704(c) so as to take into account the variation between the tax basis of
such property and tis fair market value at the time of its contribution or
at the time of its revaluation for Capital Account purposes pursuant to the
applicable Treasury Regulations. RECP as the Tax Matters Member shall
consult with the ▇▇▇▇▇▇▇ Members prior to electing an allocation method
under Section 704(c) and shall not elect to use the "traditional method
with curative allocations" (within the meaning of Regulations Section
1.704-3(c) without the prior consent of the ▇▇▇▇▇▇▇ Members. Allocations
under this Section 9.5(iv) are solely for purposes of federal, state and
local taxes and shall not affect, or in any way be taken into account in
computing, any Member's Capital Account or share of Net Income or Net Loss
or other items or distributions under any provision of this Agreement.
44
(v) Net Income shall be specially allocated to the ▇▇▇▇▇▇▇ Members to
the extent of and in proportion to any amounts distributed to them under
Section 10.4 with respect to the BGHS Note.
9.6 Excess Nonrecourse Liabilities. RECP as Tax Matters Member shall
consult with the ▇▇▇▇▇▇▇ Members as to the manner of allocating "excess
nonrecourse liabilities" of the Company within the meaning of Regulations
Section 1.752-3(a)(3).
ARTICLE 10
DISTRIBUTIONS
10.1 Distributions of Available Cash. The initial distributions of funds by
the Company to BGHS as described in the Recitals to this Agreement are hereby
approved and confirmed. In addition, the BGHS loan evidenced by the BGHS Note is
hereby ratified and approved.
(a) Subject to the provisions of Section 10.4 herein, the Managing Member
shall cause the Company to distribute all Available Cash monthly on each
Scheduled Distribution Date or, at its sole discretion, and any other date, as
follows:
(i) First, to RECP until it has received the full amount of the
Managing Member Return; and
(ii) Second, all remaining Available Cash will be distributed to the
▇▇▇▇▇▇▇ Members, pro rata in accordance with their respective Percentage
Interests in the Company.
10.2 Sale and Refinancing Proceeds.
(a) The net proceeds of any sale of all or any portion of the Property in
accordance with the provisions of this Agreement (after receiving distributions
from the applicable Company Subsidiaries), after deducting all reasonable and
customary third-party costs, including the fees payable to the Company's
financial agent, and reserving any amounts, if any, as determined by the
Managing Member, at its sole discretion (such proceeds, the "Net Sale
Proceeds"), shall be distributed as provided in Section 10.3.
(b) In the event of a refinancing of the Company's or a Subsidiary's
Indebtedness, the net proceeds to the Company (after receiving distributions
from the applicable Company Subsidiaries) from such refinancing, after deducting
all reasonable and customary third-party costs, including the fees payable to
the Company's financial agent, if any, and reserving any amounts, as determined
by the Managing Member, at its sole discretion (such net proceeds, the "Net
Refinancing Proceeds"), shall be distributed as provided in Section 10.3.
10.3 Distribution of Sale, Disposition or Refinancing Proceeds. Net Sale
Proceeds, Net Disposition Proceeds and Net Refinancing Proceeds shall be applied
or distributed, to the extent available, as follows:
45
(a) First, to the extent required to repay the Indebtedness evidenced by
the Loan Documents (and any other replacement mortgage or other RECP approved
senior Indebtedness in replacement thereof);
(b) Second, to RECP until it has received the full amount of the Managing
Member Return; and
(c) Third, to the ▇▇▇▇▇▇▇ Members, pro rata in accordance with their
respective Percentage Interests.
10.4 BGHS Note. Notwithstanding anything herein to the contrary, the
Company shall maintain a separate account for any amounts received by it as
repayment of principal or payment of interest on the BGHS Note. Subject to the
Loan Documents all such amounts received with respect to the payments of
principal or interest on the BGHS Note shall be distributed by the Company,
immediately upon their receipt, to BGHS, provided, however, that from and after
the occurrence of a Put Event, such amounts shall be retained by the Company
and, at RECP's sole discretion, may be distributed to RECP. In no event will any
amounts received by the Company as repayment of principal or payment of interest
on the BGHS Note be considered a Capital Contribution of the ▇▇▇▇▇▇▇ Members or
any other Person. The Company and the ▇▇▇▇▇▇▇ Members will not take any action
to enforce the BGHS Note or institute any legal or other action in connection
thereof without the prior written consent of RECP, provided, however, that from
and after the occurrence of a Put Event, RECP may, in its sole discretion, take
any actions to enforce or refinance or otherwise in connection with the BGHS
Note.
ARTICLE 11
TRANSFER OF MEMBER INTERESTS
11.1 Restrictions on Transfers by ▇▇▇▇▇▇▇ Members.
(a) Except as expressly permitted by the rules set forth in Section 11.1(b)
(any such permitted transfer, a "Permitted Transfer"), no direct or indirect
transfer of all or any portion of the Membership Interests of any ▇▇▇▇▇▇▇ Member
in the Company or any direct or indirect interest in any ▇▇▇▇▇▇▇ Member will be
permitted without RECP's prior written consent (which consent may be granted or
withheld in RECP's sole and absolute discretion) and to the fullest extent
permitted by law, any attempted transfer or other disposition in violation of
this Section 11.1(a) shall be void ab initio.
(b) The following rules shall govern the direct and indirect ownership of
the Interests of the ▇▇▇▇▇▇▇ Members provided, however, that if at any time the
Call Option shall have been exercised and consummated, the provisions of this
Section 11.1(b) shall be null and void and have no further effect.
(1) Ownership of Interests in the ▇▇▇▇▇▇▇ Members. Subject to the Loan
Documents, at no time shall ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ family trusts (for the
benefit of ▇▇▇▇▇▇▇'▇ spouse, parents or children) of which ▇▇▇▇▇▇▇ is the
sole trustee (i) own, directly or indirectly, less than 70% of the total
equity interests in each ▇▇▇▇▇▇▇ Member
46
or (ii) cease to have sole Control of each ▇▇▇▇▇▇▇ Member. Interests in the
▇▇▇▇▇▇▇ Members may be Transferred so long as ▇▇▇▇▇▇▇ continues to own,
directly or indirectly, or through ▇▇▇▇▇▇▇ family trusts (for the benefit
of ▇▇▇▇▇▇▇'▇ spouse, parents or children) of which ▇▇▇▇▇▇▇ is the sole
trustee at least 70% of the total equity interests in each of the ▇▇▇▇▇▇▇
Members and retains sole Control of each Maguire Member and (ii) no equity
interests in the ▇▇▇▇▇▇▇ Members may be Transferred to any Person who is
not (A) ▇▇▇▇▇▇▇, his Affiliate or his family trusts for the benefit of his
spouse, parents or children of which he is the sole trustee, or (B) current
or former executives of the ▇▇▇▇▇▇▇ Members or their Affiliates or family
trusts for their benefits.
(2) Transfers following the Death or Incapacity of ▇▇▇▇▇▇▇. (i) Each
▇▇▇▇▇▇▇ Member hereby agrees that in the event of ▇▇▇▇▇▇▇'▇ death or other
legal incapacity, his heirs or legal representatives will take any actions
necessary to transfer ▇▇▇▇▇▇▇'▇ interest in each ▇▇▇▇▇▇▇ Member to his
estate or his immediate family member (which shall include only his
surviving spouse, children and parents) or to a trust for the benefit of
such Persons. In furtherance of the foregoing, ▇▇▇▇▇▇▇ will instruct his
heirs and legal representatives to cooperate in effectuating such transfer,
and agrees that he will take such further actions as may be reasonably
required to evidence and make the foregoing instructions valid and binding
obligations on ▇▇▇▇▇▇▇'▇ heirs and legal representatives.
11.2 Transfers by RECP. RECP may Transfer, all or any portion of the
Managing Member Interests to any other Person without the prior approval of the
▇▇▇▇▇▇▇ Members or any other person subject to any required consents of the
holders of the Existing Mortgage Debt, or the New Subordinated Debt, provided,
that such transferee shall execute a Joinder Agreement and shall assume all of
RECP's rights and obligations (other than its obligation to act as Managing
Member) with respect to the Company and its Subsidiaries. The ▇▇▇▇▇▇▇ Members
hereby consent to such assignment and to RECP taking any actions necessary in
order to effect such assignment, including, without limitation, the amending of
this Agreement and Schedule 3.3 herein for the purpose of making such Assignee a
Substituted Member. The ▇▇▇▇▇▇▇ Members appoint RECP as their attorney-in-fact
solely for the purpose of effecting such actions to the extent permitted by this
Section 11.2.
11.3 Assignment Binding on Company. No Transfer of all or any part of the
Membership Interest of a Member otherwise permitted to be made under this
Agreement shall be binding upon the Company unless and until a duplicate
original of the assignment agreement or other instrument of transfer, duly
executed and acknowledged by the assignor or transferor, has been delivered to
the Company, and, in the case of any Transfer other than a Transfer authorized
by this Section 11.3, such instrument evidences (i) the written acceptance by
the assignee of all of the terms and provisions of this Agreement, (ii) the
assignee's confirmation of the accuracy of each of the representations and
warranties set forth in Section 3.4 and the assignee's representation that such
assignment was made in accordance with all applicable laws and regulations and
(iii) the consent to the Transfer of the Membership Interest required pursuant
to Section 11.1, if any. In addition, the Managing Member, in its discretion and
as a condition precedent to such Person becoming a transferee, also may require
any Person to whom a Transfer may be made pursuant to this Article 11 to make
certain representations, warranties and covenants to evidence compliance with
U.S. federal and state securities laws including, but not limited to,
representations as to its net worth, sophistication and investment intent.
47
11.4 Limitation on Distributions. Notwithstanding any provision to the
contrary contained in this Agreement, the Company shall not be required to make
a distribution to a Member on account of its interest in the Company if such
distribution would violate Sections 18-607 or 18-804 of the Act or any other
applicable law.
11.5 Bankruptcy of a Member. To the fullest extent permitted by law, the
Company shall not be dissolved or terminated solely by reason of the Bankruptcy,
removal, resignation, withdrawal, dissolution or admission of any Member.
11.6 Substituted Members.
(a) Any Member that assigns all of its Membership Interests pursuant to an
assignment or assignments permitted under this Agreement shall cease to be a
Member of the Company except that unless and until a Substituted Member is
admitted in its stead, the assigning Member shall not cease to be a Member of
the Company under the Act and shall retain the rights and powers of a member
under the Act and hereunder, provided that such assigning Member may, prior to
the admission of a Substituted Member, assign its economic interest in its
Membership Interest, to the extent otherwise permitted under this Article 11.
Any Person who is an assignee of any portion of the Membership Interest of a
Member pursuant to an assignment satisfying the requirements of this Article 11
shall become a Substituted Member only when (i) the Managing Member has entered
such assignee as a Member on the books and records of the Company, which the
Managing Member is hereby directed to do upon satisfaction of such requirements,
and (ii) such assignee has paid all of the Company's reasonable legal fees and
filing costs in connection with the substitution as a member.
(b) Any Person who is an assignee of any of the Membership Interest of a
Member pursuant to an assignment satisfying the requirements of this Article 11
but who does not become a Substituted Member and desires to make a further
assignment of any such Membership Interest shall be subject to all the
provisions of this Article 11 to the same extent and in the same manner as any
Member desiring to make an assignment of its Membership Interest.
11.7 Acceptance of Prior Acts. Any person who becomes a Member, by becoming
a Member, accepts, ratifies and agrees to be bound by all actions duly taken
pursuant to the terms and provisions of this Agreement by the Company or any of
its members prior to the date such Person became a Member and, without limiting
the generality of the foregoing, specifically ratifies and approves all
agreements and other instruments as may have been executed and delivered on
behalf of the Company prior to said date and which are in force and effect on
said date.
11.8 Additional Limitations. In addition to any restrictions or transfers
included in Section 11.1 herein and notwithstanding anything contained in this
Agreement, no Transfer shall be made, and the Managing Member shall have the
right to prohibit and may refuse to accept any Transfer, unless (i) registration
is not required under the Securities Act of 1933, as amended, in respect of such
Transfer; (ii) such Transfer does not violate any applicable federal or state
securities, real estate syndication, or comparable laws; (iii) such Transfer
will not be subject to, or such Transfer, when aggregated with prior Transfers
in accordance with applicable law, will not result in the imposition of, any
state, city or local transfer taxes upon the transferor or transferee,
including, without limitation, any transfer gains taxes, unless such
48
assignor pays such taxes or causes them to be paid; and (iv) such Transfer will
not cause the Company to be treated as a "publicly traded company" within the
meaning of Section 7704 of the Code. RECP may elect prior to any Transfer to
require an opinion of counsel with respect to any of the foregoing matters.
11.9 Waiver of Withdrawal and Fair Value. Except as otherwise provided in
this Agreement or any other Transaction Documents or in connection with a
Transfer of all or a portion of a Member's membership interest that is permitted
pursuant to this Article 11, no Member may voluntarily withdraw, resign or
retire from the Company without the prior written consent of the Managing
Member. In furtherance of the foregoing, each Maguire Member hereby waives any
and all rights such Member may have to withdraw and/or resign from the Company
pursuant to Section 18-603 of the Act and hereby waives any and all rights such
Member may have to receive the fair value of such Member's Interest in the
Company upon such resignation and/or withdrawal pursuant to Section 18-604 of
the Act.
ARTICLE 12
DISSOLUTION OF THE COMPANY;
WINDING UP AND DISTRIBUTION OF ASSETS
12.1 Dissolution.
(a) The Company shall be dissolved and its affairs shall be wound up only
upon the first to occur of the following:
(1) the collective written direction of each of the Members (or the
unilateral decision of RECP where RECP, as Managing Member, has the
unilateral right to dissolve the Company under Section 4.3);
(2) the entry of a decree of judicial dissolution under Section 18-802
of the Act;
(3) the expiration of its term pursuant to Section 2.7; and
(4) the termination of the legal existence of the last remaining
member of the Company or the occurrence of any other event which terminates
the continued membership of the last remaining member of the Company in the
Company unless the business of the Company is continued in a manner
permitted by this Agreement or the Act. Upon the occurrence of any event
that causes the last remaining member of the Company to cease to be a
member of the Company, to the fullest extent permitted by law, the personal
representative of such member is hereby authorized to, and shall, within 90
days after the occurrence of the event that terminated the continued
membership of such member in the Company, agree in writing (i) to continue
the Company and (ii) to the admission of the personal representative or its
nominee or designee, as the case may be, as a substitute member of the
Company, effective as of the occurrence of the event that terminated the
continued membership of the last remaining member of the Company in the
Company.
49
(b) Except as provided in this Agreement, no Member shall have the right
(i) to withdraw or resign as a Member of the Company, (ii) to redeem or
otherwise require redemption of its Membership Interest in the Company or any
part thereof or (iii) to the fullest extent permitted by law, to dissolve itself
voluntarily.
(c) Notwithstanding any other provision of this Agreement, the Bankruptcy
of a Member shall not cause the Member to cease to be a member of the Company
and, upon the occurrence of such an event, the business of the Company shall
continue without dissolution.
12.2 Winding Up.
(a) In the event of the dissolution of the Company pursuant to Section
12.1(a), RECP (unless it is no longer the Managing Member in which case BGHS)
may wind up the Company's affairs.
(b) Upon dissolution of the Company and until the filing of a certificate
of cancellation as provided in the Act, the Managing Member, (or a liquidating
trustee, as the case may be), may, in the name of, and for and on behalf of, the
Company, continue to act as such and shall make all decisions relating to the
conduct of any business or operations during the winding up period and to the
sale or other disposition of Company Assets, including, without limitation, to
prosecute and defend suits, whether civil, criminal or administrative, gradually
settle and close the Company's business, dispose of and convey the Company
Assets, discharge or make reasonable provisions for the Company's liabilities,
and distribute to the Members in accordance with Section 12.3 any remaining
assets of the Company, all without affecting the liability of Members and
without imposing liability on any liquidating trustee. In addition to any other
waivers included in this Agreement, each Member hereby waives any claims it may
have against the Managing Member during winding up that may arise out of the
Managing Member's management of the Company, so long as such Managing Member
acts in good faith and without gross negligence or willful misconduct. Every
reasonable effort shall be made by the Managing Member to dispose of the assets
of the Company within ninety (90) days after dissolution.
(c) Upon the completion of winding up of the Company, the Managing Member,
or a liquidating trustee, as the case may be, as an authorized person shall file
a certificate of cancellation of the Certificate of Formation in the Office of
the Secretary of State of the State of Delaware as provided in the Act and any
other similar certificates of cancellation or termination required to
discontinue its status as a legal entity or its authorization to do business in
California or any other relevant jurisdiction. The existence of the Company as a
separate legal entity shall continue until cancellation of the Certificate of
Formation as provided in the Act.
12.3 Distribution of Assets. Upon the winding up of the Company, the
Company Assets shall be distributed as follows:
(1) to the satisfaction of debts and liabilities of the Company
(whether by payment or the making of reasonable provision for payment
thereof), in order of priority as provided by law, other than debts and
liabilities owed to Members, including to the payment of expenses of the
liquidation and to the setting up of any reserves that the Managing Member,
or the liquidating trustee, as the case may be, shall determine are
reasonably necessary for any contingent, conditional or unmatured
liabilities or obligations of the Company or the Members;
50
(2) to the Members in accordance with the priorities set forth in
Section 10.3.
ARTICLE 13
AMENDMENTS
13.1 Amendments. Any amendment or supplement to this Agreement implemented
solely to recognize substitution of any Member expressly permitted hereunder or
an assignment of any Membership Interest made in full compliance with Article 12
may be made by RECP without the consent or approval of any other Member (but
with notice thereof to each Member following any such amendment). In all other
cases, this Agreement may only be amended, supplemented or otherwise modified
with the prior written consent of the ▇▇▇▇▇▇▇ Members and RECP, and no other
Member shall have any right to approve or disapprove any amendment, supplement
or other modification to this Agreement that has been approved by the ▇▇▇▇▇▇▇
Member and RECP; provided, however, following an Trigger Event and notice
thereof to the ▇▇▇▇▇▇▇ Members, the Managing Member may make any amendments it
deems necessary or desirable to recapitalize the Company, or to take any other
Significant Decision, including without limitation, the authorization and
issuance of additional classes of Membership Interest having such rights,
privileges and preferences as the Managing Member determines in its sole and
absolute discretion. No amendment, modification, supplement, discharge or waiver
hereof or hereunder shall require the consent of the Special Member or any
Person not a party to this Agreement.
13.2 Additional Members. In addition to the requirements of Section 13.1,
if this Agreement shall be amended for the purpose of adding or substituting any
Member, the amendment shall be signed by the Person to be added or substituted
and by the assigning Member, if any. In making any amendments, the Managing
Member shall prepare and file for recordation such documents and certificates as
shall be required to be prepared and filed.
ARTICLE 14
MISCELLANEOUS
14.1 Further Assurances. Each party to this Agreement agrees to execute,
acknowledge, deliver, file and record such further certificates, amendments,
instruments and documents, and to do all such other acts and things, as may be
required by law or as, in the reasonable judgment of the Managing Member, may be
necessary or advisable to carry out the intent and purpose of this Agreement.
14.2 Notices. Unless otherwise specified in this Agreement, all notices and
other communications provided for hereunder shall be in writing (including by
facsimile transmission) and mailed or sent or delivered at the addresses
specified below. All such notices and communications shall be given by hand or
facsimile transmission; provided that, in the event that facsimile transmission
facilities are not operational, such notices and communications may be given by
mail, but the sender shall use reasonable efforts to confirm facsimile
transmission facilities shall become operational. All such notices and
communications shall be effective when delivered by hand, or, in the case of
mail, upon the earlier of receipt and confirmation by facsimile transmission as
provided below, or, in the case of facsimile transmission, when sent as
51
addressed as set forth herein and confirmation of delivery is received. The
addresses of each party shall be as set forth on Schedule 3.3 hereto, provided
that each party to this Agreement may, from time to time, change its notice
address, by giving notice to the Company and the other parties herein in the
manner provided in this Section.
14.3 Headings and Captions. All headings and captions contained in this
Agreement and the table of contents hereto is inserted for convenience only and
shall not be deemed a part of this Agreement.
14.4 Variance of Pronouns. All pronouns and all variations thereof shall be
deemed to refer to the masculine, feminine or neuter, singular or plural, as the
identity of the person or entity may require.
14.5 Counterparts. THIS AGREEMENT MAY BE EXECUTED IN TWO OR MORE
COUNTERPARTS, EACH OF WHICH SHALL CONSTITUTE AN ORIGINAL AND ALL OF WHICH, WHEN
TAKEN TOGETHER, SHALL CONSTITUTE ONE AGREEMENT.
14.6 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO CONFLICT OF
LAW PROVISIONS THEREOF.
14.7 Consent to Jurisdiction. To the fullest extent permitted by law, each
party hereto hereby irrevocably consents and agrees, for the benefit of each
party, that any legal action, suit or proceeding against it with respect to its
obligations, liabilities or any other matter under or arising out of or in
connection with this Agreement, in any state or federal court located in the
State of Delaware, or if it has or can acquire jurisdiction, shall be brought in
any city, state or federal court located in the Borough of Manhattan, The City
of New York (the "Designated Courts"), and hereby irrevocably accepts and
submits to the jurisdiction of the Designated Courts (and of the appropriate
appellate courts) of each such Designated Court with respect to any such action,
suit or proceeding. Each party hereto also hereby irrevocably consents and
agrees, for the benefit of each other party, that any legal action, suit or
proceeding against it shall be brought in any Designated Court, and hereby
irrevocably accepts and submits to the exclusive jurisdiction of each such
Designated Court with respect to any such action, suit or proceeding. Each party
hereto waives any objection which it may now or hereafter have to the laying of
venue of any of the aforesaid actions, suits or proceedings brought in any such
Designated Court and hereby further waives and agrees not to plead or claim in
any such Designated Court that any such action, suit or proceeding brought
therein has been brought in an inconvenient forum. Each party agrees that (i) to
the fullest extent permitted by law, service of process may be effectuated
hereinafter by mailing a copy of the summons and complaint or other pleading by
certified mail, return receipt requested, at its address set forth above and
(ii) all notices that are required to be given hereunder may be given by the
attorneys for the respective parties.
14.8 Partition. The Members hereby agree that no Member nor any
successor-in-interest to any Member shall have the right to have the Company
Assets partitioned, or to file a complaint or institute any proceeding at law or
in equity to have the Company Assets partitioned, and each Member, on behalf of
himself, his successors, representatives, heirs and assigns, hereby waives any
such right.
52
14.9 Validity. Every provision of this Agreement is intended to be
severable. The invalidity and unenforceability of any particular provision of
this Agreement in any jurisdiction shall not affect the other provisions
hereof, and this Agreement shall be construed in all respects as if such invalid
or unenforceable provision were omitted.
14.10 Successors and Assigns. This Agreement shall be binding upon the
parties hereto and their respective successors, executors, administrators, legal
representatives, heirs and legal assigns and shall inure to the benefit of the
parties hereto and, except as otherwise provided herein, their respective
successors, executors, administrators, legal representatives, heirs and legal
assigns. No Person other than the parties hereto and their respective
successors, executors, administrators, legal representatives, heirs and
permitted assigns shall have any rights or claims under this Agreement.
14.11 Entire Agreement. This Agreement, together with the Option Agreement
and the Contribution Agreement, including the Schedules hereto and thereto,
supersedes all prior agreements among the parties with respect to the subject
matter hereof and contains the entire Agreement among the parties with respect
to such subject matter.
14.12 Waivers. No Waiver of any provision hereof by any party hereto shall
be deemed a waiver by any other party nor shall any such waiver by any party be
deemed a continuing waiver of any mater by such party.
14.13 No Brokers. Each of the Members hereto warrant to each other that
there are no brokerage commissions or finders' fees (or any basis therefor)
other than any fees owed by the ▇▇▇▇▇▇▇ Members to Secured Capital Corp., who
arranged the RECP Investment, as described in Schedule 14.13 herein resulting
from any action taken by such Member or any Person acting or purporting to act
on their behalf upon entering into this Agreement. Each Member agrees to
indemnify and hold harmless each other Member for all costs, damages or other
expenses arising out of any misrepresentation made in this Section 14.13 and, in
addition, the ▇▇▇▇▇▇▇ Members indemnify and hold RECP and its Affiliates
harmless from any liabilities that may or may not be sought to be imposed by
Secured Capital Corp. or by any other person on RECP or the Company in
connection with the engagement of Secured Capital Corp. or such other person.
14.14 Maintenance as a Separate Entity. The Company shall maintain books
and records and bank accounts separate from those of its Affiliates; shall at
all times hold itself out to the public as a legal entity separate and distinct
from any of its Affiliates (including in its operating activities, in entering
into any contract, in preparing its financial statements, and on its stationery
and any signs it posts), and shall cause its Affiliates to do the same and to
conduct business with it on an arm's-length basis; shall not commingle its
assets with assets of any of its Affiliates; shall not guarantee any obligation
of any of its Affiliates; and shall keep minutes of all meetings of the Members.
Failure of the Company, or any Member on behalf of the Company, to comply with
any of the foregoing covenants or any other covenants contained in this
Agreement, shall not affect the status of the Company as a separate legal entity
or the limited liability of a Member.
14.15 Confidentiality. Each of the Members agrees not to disclose or permit
the disclosure of any of the terms of this Agreement or of any other
confidential, non-public or proprietary information relating to the Company
Assets or business (collectively, "Confidential
53
Information"), provided that such disclosure may be made (a) to Standard &
Poor's and Dai-ichi Mutual Life Insurance Company and its representatives and
Affiliates, Delacourt, Inc. and its representatives and Affiliates, and to any
Person who is a member, general partner, officer, director or employee of such
Member or counsel to or accountants of such Member solely for their use and on
a need-to-know basis, provided that such Persons are notified of the Members'
confidentiality obligations hereunder, (b) with the prior consent of the other
Members, (c) subject to the next paragraph, pursuant to a subpoena or order
issued by a court, arbitrator or governmental body, agency or official and (d)
to the holder of the Existing Mortgage Debt and the New Subordinated Debt and
any other lender providing financing to the Company or any Subsidiary in
accordance with the requirements of this Agreement.
14.16 In the event that a Member receives a request to disclose any
Confidential Information under a subpoena or order, such Member shall (i)
promptly notify the other Members thereof, (ii) consult with the other Members
on the advisability of taking steps to resist or narrow such request and (iii)
if disclosure is required or deemed advisable, cooperate with each other Member
in any attempt it may make to obtain an order or other assurance that
confidential treatment will be accorded the Confidential Information that is
disclosed.
No Member shall issue any press release or other public communication about
the formation or existence of the Company without other Members' express prior
written consent.
The provisions of this Section 14.15 were negotiated in good faith by the
parties hereto, and the parties hereto agree that such provisions are reasonable
and are not more restrictive than necessary to protect the legitimate interests
of the parties hereto.
14.17 No Third Party Beneficiaries. Except as expressly stated herein, this
Agreement is not intended and shall not be construed as granting any rights,
benefits or privileges to any Person not a party to this Agreement. Without
limiting the generality of the foregoing, no creditor of the Company shall have
any right whatsoever to require any Member to contribute capital to the Company.
14.18 Construction of Documents. The parties hereto acknowledge that they
were represented by separate and independent counsel in connection with the
review, negotiation and drafting of this Agreement and that this Agreement shall
not be subject to the principle of construing its meaning against the party that
drafted same.
14.19 Time is of the Essence. Time is of the essence with respect to any of
the matters set forth in this Agreement.
14.20 Modification to Structure. In order to qualify and/or preserve the
status of the Company or any Subsidiary thereof as an "operating company" under
the plan asset rules of ERISA at 29 C.F.R. 2510.3-101, to avoid the imposition
of any corporate tax on any income of the Company, or to minimize the effects of
any "unrelated business taxable income" (as defined in IRC Section 512 through
514) on RECP and its respective direct and indirect partners, members and
shareholders, the ▇▇▇▇▇▇▇ Members agree to modifications to the structure of the
Company and/or the Company's investments in and ownership of the Property and/or
to the terms of this Agreement proposed from time to time by RECP in good faith
including, without limitation, the Capital Account and allocation and
distribution provisions set forth in Articles 8 through 10 hereof, if in any
such case the modifications are not reasonably likely to (i) subject
54
the ▇▇▇▇▇▇▇ Members to greater liability or exposure for third-party claims of
or any indebtedness owing to third parties, (ii) adversely affect the liquidity
of the Company or Companies), (iii) adversely affect the aggregate amount or
timing of distributions of cash flow and liquidation proceeds to the ▇▇▇▇▇▇▇
Members; or (iv) create a taxable event, an increase in the taxable gain or
loss or a reduction in the allocations of losses to the ▇▇▇▇▇▇▇ Members.
14.21 Waiver of Jury Trial. EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY
WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM DEMAND, ACTION OR CAUSE OF ACTION
(A) ARISING UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY PRESENT OR
FUTURE MODIFICATION HEREOF OR (B) IN ANY WAY CONNECTED OR RELATED OR INCIDENTAL
TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS
AGREEMENT (AS NOW OR HEREAFTER MODIFIED) OR ANY OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS
RELATED HERETO OR THERETO, IN EACH CASE WHETHER SUCH CLAIM, DEMAND, ACTION OR
CAUSE OF ACTIONS IS NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN
CONTRACT OR TORT OR OTHERWISE; AND THE COMPANY HEREBY AGREES AND CONSENTS THAT
ANY SUCH CLAIM, DEMAND ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF THE PARTIES HERETO TO THE WAIVER OF ANY RIGHT THEY MIGHT OTHERWISE
HAVE TO TRIAL BY JURY.
14.22 Recalculation of Interest/Returns. If any applicable law is ever
judicially interpreted so as to deem any distribution, contribution, payment or
other amount received by any member or the Company under this Agreement or any
other Transaction Document as interest and so as to render any such amount in
excess of the maximum rate or amount of interest permitted by applicable law,
then it is the express intent of the Members and the Company that all amounts in
excess of the highest lawful rate or amount theretofore collected be credited
against any other distributions, contributions, payments or other amounts to be
paid by the recipient of the excess amount or refunded to the appropriate
Person, and the provisions of this Agreement or the applicable Transaction
Document immediately be deemed reformed, without the necessity of the execution
of any new document, so as to comply with the applicable law, but so as to
permit the payment of the fullest amount otherwise required hereunder. All sums
paid or agreed to be paid that are judicially determined to be interest shall,
to the extent permitted by applicable law, be amortized, prorated, allocated and
spread throughout the term of such obligation so that the rate or amount of
interest on account of such obligation does not exceed the maximum rate or
amount of interest permitted under applicable law.
[THE REMAINDER OF THIS PAGE WAS INTENTIONALLY LEFT BLANK]
55
IN WITNESS WHEREOF, the parties have entered into this Limited Liability
Company Agreement as of the date first set forth above.
▇▇▇▇▇▇▇ PARTNERS-HOPE PLACE, LTD.,
a California limited partnership
By: ▇▇▇▇▇▇▇ PARTNERS BGHS, LLC
a California limited liability company,
its Managing General Partner
By: ▇▇▇▇▇▇▇ PARTNERS SCS, INC.
a California corporation,
its Manager
By: /s/ ILLEGIBLE SIGNATURE
-----------------------
Name:
-----------------------
Title:
-----------------------
▇▇▇▇▇▇▇ PARTNERS BGHS, LLC,
a California limited liability company
By: ▇▇▇▇▇▇▇ PARTNERS SCS, INC.
a California corporation,
its Manager
By: /s/ ILLEGIBLE SIGNATURE
-----------------------
Name:
-----------------------
Title:
-----------------------
------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇▇
(Signatures continued)
56
IN WITNESS WHEREOF, the parties have entered into this Limited Liability
Company Agreement as of the date first set forth above.
▇▇▇▇▇▇▇ PARTNERS-HOPE PLACE, LTD.,
a California limited partnership
By: ▇▇▇▇▇▇▇ PARTNERS BGHS, LLC
a California limited liability company,
its Managing General Partner
By: ▇▇▇▇▇▇▇ PARTNERS SCS, INC.
a California corporation,
its Manager
By:
-----------------------
Name:
-----------------------
Title:
-----------------------
▇▇▇▇▇▇▇ PARTNERS BGHS, LLC,
a California limited liability company
By: ▇▇▇▇▇▇▇ PARTNERS SCS, INC.
a California corporation,
its Manager
By:
-----------------------
Name:
-----------------------
Title:
-----------------------
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇▇
(Signature continued)
57
RECP LIBRARY LLC,
a Delaware limited liability company
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Treasurer
58
[EXECUTION COPY]
CONSULTING AGREEMENT
This CONSULTING AGREEMENT (this "Agreement") is made of the 27 day of
March, 2002, by and between ▇▇▇▇▇▇▇ PARTNERS DEVELOPMENT, LTD., a California
limited partnership ("Property Manager"), and RECP LIBRARY LLC, a Delaware
limited liability company ("RECP").
WHEREAS, ▇▇▇▇▇▇▇ Partners-Hope Place, Ltd., a California limited
partnership, ▇▇▇▇▇▇▇ Partners-BGHS, LLC, a California limited liability company,
and RECP are members of Bunker Hill Equity, LLC, a Delaware limited liability
company (the "Company"), pursuant to a limited liability company agreement,
dated as of the date hereof (the "Operating Agreement"); and
WHEREAS, Property Manager has been engaged by Library Square
Associates, LLC, a Delaware limited liability company, a wholly-owned indirect
subsidiary of the Company, as the managing agent of premises known as Library
Tower, Los Angeles, California (the "Property"), pursuant to a Third Amendment
to and Restatement of Management Agreement, dated as of the date hereof (the
"Management Agreement"); and
WHEREAS, to ensure the proper management of the Property, Property
Manager desires that RECP be available to provide the benefit of RECP's
consulting services to Property Manager, upon and subject to the terms and
conditions set forth below.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Property Manager and RECP hereby agree as follows:
1. Defined Terms. Unless the context otherwise requires, capitalized
terms used but not otherwise defined herein shall have the meaning set forth in
the Operating Agreement.
2. Term. This Agreement shall continue in full force and effect
until the earlier of: (x) indefeasible redemption of the Managing Member
Interests pursuant to the terms of the Operating Agreement, (y) the indefeasible
purchase of the Managing Member Interests pursuant to the Option Agreement; or
(z) the termination of the Management Agreement.
3. Consulting Services. Subject to the terms and conditions of this
Agreement, RECP shall act as a consultant to Property Manager in connection with
the Property. RECP's services under this Agreement shall consist of making
itself available for (i) consulting with Property Manager on such matters
pertaining to the management of the Property as may be requested, with advice to
be given in such manner, in person, by telephone or by correspondence, as RECP
and Property Manager may mutually agree, (ii) consulting with Property Manager
in the preparation of budgets and other accounting books and records, (iii)
consulting with Property Manager in its obligations under the Management
Agreement, and (iv) such other duties as to which Property Manager and RECP may
mutually agree.
4. Compensation. a. As full consideration for the performance by
RECP of its obligations under this Agreement, Property Manager shall pay to
RECP, on or before the tenth (10th) day of each calendar month, a consulting fee
(the "Consulting Fee") in the amount of one-third (1/3) of the Management Fee
(as such term is defined in the Management Agreement) received by Property
Manager as compensation for its services as the manager of the Property for the
prior month (but in no event less than 1% of the gross revenues of the Property
for such prior month). RECP shall have the right at any time, upon reasonable
prior notice, to inspect the books and records of Property Manager to determine
the Management Fee received by Property Manager for its services as manager of
the Property. In addition to the Consulting Fee, RECP shall be reimbursed by
Property Manager for all of the reasonable, out-of-pocket costs and expenses
incurred by RECP in connection with its performance of the consulting activities
described in Paragraph 3 hereof, promptly after rendition of a ▇▇▇▇ therefor.
b. In the event that ▇▇▇▇▇ Fargo Bank ("▇▇▇▇▇ Fargo"), as tenant in
the Property, shall fail to pay after the expiration of notice and cure periods
as provided in ▇▇▇▇▇ Fargo's lease (the "▇▇▇▇▇ Fargo Lease") at the Property the
full amount of its share of the tax assessments for any applicable period that
▇▇▇▇▇ Fargo would have been required to pay in accordance with the ▇▇▇▇▇ Fargo
Lease in the absence of Paragraph 5.1 thereof as a result of Proposition XIII
protection under such Paragraph 5.1 in connection with the reassessment of
Property arising from the transaction described in the Transaction Documents
("Reassessment Event"), then, the Consulting Fee shall be increased by an amount
(the "▇▇▇▇▇ Fargo Amount") equal to the difference between the amount ▇▇▇▇▇
Fargo would have been required to pay in accordance with the ▇▇▇▇▇ Fargo Lease
in respect of tax assessments for the applicable period absent any Proposition
XIII protection provided to ▇▇▇▇▇ Fargo under Paragraph 5.1 thereof in
connection with such Reassessment Event, and the amount actually paid by ▇▇▇▇▇
Fargo for such tax assessments, as such ▇▇▇▇▇ Fargo Amount shall be determined
by RECP (which determination shall be binding on the parties absent manifest
error); provided, however, to the extent that ▇▇▇▇▇ Fargo actually pays for such
tax assessments after the Consulting Fee is increased pursuant to the foregoing
sentence, RECP shall refund Property Manager such amounts actually paid by ▇▇▇▇▇
Fargo with respect to such Reassessment Event.
5. Entire Agreement. This Agreement contains the entire
understanding of the parties with respect to the subject matter hereof and the
same may not be changed or modified orally but only by written instrument signed
by duly authorized officers or members of the parties hereto.
6. Successors and Assigns. This Agreement shall be binding on the
parties hereto and their respective permitted successors and assigns.
7. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York, without regard to the
conflict of laws provision thereof.
2
8. Consent to Jurisdiction. To the fullest extent permitted by law,
each party hereto hereby irrevocably consents and agrees, for the benefit of
each party, that any legal action, suit or proceeding against it with respect to
its obligations, liabilities or any other matter under or arising out of or in
connection with this Agreement, and with respect to the enforcement,
modification, vacation or correction of an award rendered in an arbitration
proceeding, shall be brought in any city, state or federal court located in the
Borough of Manhattan, The City of New York (a "New York Court"), and hereby
irrevocably accepts and submits to the jurisdiction of each such New York Court
with respect to any such action, suit or proceeding. Each party hereto also
hereby irrevocably consents and agrees, for the benefit of each other party,
that any legal action, suit or proceeding against it shall be brought in any New
York Court, and hereby irrevocably accepts and submits to the exclusive
jurisdiction of each such New York Court with respect to any such action, suit
or proceeding. Each party hereto waives any objection which it may now or
hereafter have to the laying of venue of any of the aforesaid actions, suits or
proceedings brought in any such New York Court and hereby further waives and
agrees not to plead or claim in any such New York Court that any such action,
suit or proceeding brought therein has been brought in an inconvenient forum.
Each party agrees that (i) to the fullest extent permitted by law, service of
process may be effectuated hereinafter by mailing a copy of the summons and
complaint or other pleading by certified mail, return receipt requested, at its
address set forth above and (ii) all notices that are required to be given
hereunder may be given by the attorneys for the respective parties.
9. Assignment. RECP may assign this Agreement to any transferee of all
or part of its Managing Members Interest in the Company or to any successor(s)
without the consent of the Property Manager.
10. Notices. Unless otherwise specified in this Agreement, all notices
and other communications provided for hereunder shall be in writing (including
by facsimile transmission) and mailed or sent or delivered at the addresses
specified below. All such notices and communications shall be given by hand or
facsimile transmission; provided that, in the event that facsimile transmission
facilities are not operational, such notices and communications may be given by
mail, but the sender shall use reasonable efforts to confirm facsimile
transmission facilities shall become operational. All such notices and
communications shall be effective when delivered by hand, or, in the case of
mail, upon the earlier of receipt and confirmation by facsimile transmission as
provided below, or, in the case of facsimile transmission, when sent as
addressed as set forth herein and confirmation of delivery is received. The
addresses of each party shall be:
Property Manager:
c/o Maguire Partners
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel [Library Tower]
3
RECP:
c/o DLJ Real Estate Capital Partners, Inc.
2121 Avenue of the Stars
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
provided that each party to this Agreement may, from time to time, change its
notice address, by giving notice to the Company and the other parties herein in
the manner provided in this Section.
11. Non-Waiver. No waiver or waivers by any party of any breach,
default, liability or performance by the other party shall be deemed or
construed a waiver of any other term, condition or liability of the breach or
default thereof. Failure on the part of any party to complain of any action or
inaction on the part of the other party or to declare the other party in
default, no matter how long such failure may continue, shall not be deemed to be
a waiver by such party of any of its rights hereunder.
12. Liability; Indemnification. Property Manager, on behalf or itself
and its Affiliates, absolutely, unconditionally and irrevocably releases,
waives, relinquishes, renounces and discharges forever RECP and its Affiliates,
from any and all claims, causes of action, demands, obligations, losses,
diminution in value, liabilities, damages, judgments, costs and expenses
(including reasonable fees and expenses of counsel), that RECP may suffer,
sustain or become subject to resulting from or arising as a result of RECP's
performance of the consulting services contemplated in this Agreement, except
with respect to such actions that are determined by a final non-appealable
decision of a competent court to have been made or taken by RECP with gross
negligence or willful misconduct. To the fullest extent permitted by law,
Property Manager agrees to indemnify RECP and hold RECP harmless from and
against any and all costs, expenses and other liabilities of any kind incurred
by RECP as a result of any claim, judgment, action or proceeding brought by or
on behalf of the Property Manager, any ▇▇▇▇▇▇▇ Member or any of their respective
Affiliates or any other person relating to this Agreement or relating to the
performance by RECP of any consulting services as contemplated herein.
13. Gender and Number. All pronouns used in this Agreement shall
include the other genders, and the singular shall include the plural, and the
plural shall include the singular, whenever and as often as may be appropriate.
14. Captions. The captions beside the Section numbers of this
Agreement are for convenience and reference only and in no way define, limit or
describe the scope or intent of this Agreement and in no way affect or
constitute a part of this Agreement.
15. Amendment of Agreement. This Agreement may not be modified or
amended orally or in any manner other than by an agreement in writing, signed by
RECP and Property Manager.
4
16. Counterparts. This Agreement may be executed in two or more
counterparts and shall be deemed to have become effective when and only when one
or more of such counterparts shall have been signed by or on behalf of each of
the parties hereto (although it shall not be necessary that any single
counterpart be signed by or on behalf of each of the parties hereto, and all
such counterparts shall be deemed to constitute but one and the same
instrument), and shall have been delivered by each of the parties to each other.
[SIGNATURES BEGIN ON THE FOLLOWING PAGE]
5
IN WITNESS WHEREOF, the parties have hereunto have executed this
Agreement as of the day and year first above written.
▇▇▇▇▇▇▇ PARTNERS DEVELOPMENT, LTD.,
a California limited partnership
By: ▇▇▇▇▇▇▇ PARTNERS MANAGEMENT COMPANY, LLC
a California limited liability company
its general partner
By: ▇▇▇▇▇▇▇ PARTNERS SCS, INC.,
a California corporation
By: /s/ ILLEGIBLE SIGNATURE
-----------------------
Name:
Title:
6
RECP LIBRARY LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Treasurer
7
[EXECUTION COPY]
CONTRIBUTION AGREEMENT
AMONG
BUNKER HILL EQUITY, LLC,
▇▇▇▇▇▇▇ PARTNERS -- HOPE PLACE, LTD.,
▇▇▇▇▇▇▇ PARTNERS BGHS, LLC
AND
RECP LIBRARY LLC
Dated: As of March 27, 2002
TABLE OF CONTENTS
Page
CONTRIBUTION AGREEMENT.................................... 1
1. DEFINITIONS........................................... 1
2. CAPITAL CONTRIBUTION AND ISSUANCE OF MANAGING MEMBER
INTERESTS............................................. 3
3. EFFECTIVE DATE REQUIREMENTS........................... 3
4. RESERVES.............................................. 4
5. REPRESENTATIONS AND WARRANTIES OF ▇▇▇▇▇▇▇ MEMBERS..... 5
6. INTEREST RATE CAP..................................... 17
7. INDEMNITY............................................. 17
8. ▇▇▇▇▇▇▇ POST CLOSING OBLIGATIONS...................... 19
9. AUTHORIZED SIGNATORIES................................ 19
10. EXPENSES.............................................. 19
11. NO WAIVER; CUMULATIVE RIGHTS.......................... 20
12. ASSIGNMENT............................................ 20
13. HEADINGS AND CAPTIONS................................. 20
14. VARIANCE OF PRONOUNS.................................. 20
15. COUNTERPARTS.......................................... 20
16. GOVERNING LAW......................................... 20
17. CONSENT TO JURISDICTION............................... 20
18. NO THIRD PARTY BENEFICIARIES.......................... 21
19. CONSTRUCTION OF DOCUMENTS............................. 21
20. EFFECTIVENESS; TERMINATION............................ 21
21. WAIVER OF JURY TRIAL.................................. 21
i
22. VALIDITY; SEVERABILITY.......................................... 22
23. ENTIRETY........................................................ 22
24. AMENDMENTS, WAIVERS AND CONSENTS................................ 22
25. FURTHER ASSURANCES.............................................. 22
26. TIME IS OF THE ESSENCE.......................................... 22
27. NOTICES......................................................... 22
Schedules
---------
3 RECP and Affiliates' Costs and Expenses
3(e) Board of Directors
3(f) Organizational Documents Provisions
4 Property Reserves
Exhibits
--------
1 Master Escrow Instructions
3 Form of Title Policy
ii
CONTRIBUTION AGREEMENT
This CONTRIBUTION AGREEMENT (this "Agreement") made as of the 27th day of
March, 2002, by and among Bunker Hill Equity, LLC, a Delaware limited liability
company (the "Company"), ▇▇▇▇▇▇▇ Partners-Hope Place, Ltd., a California
limited partnership ("MP"), ▇▇▇▇▇▇▇ Partners BGHS, LLC, a California limited
liability company ("BGHS" and together with MP, the "▇▇▇▇▇▇▇ Members") and RECP
Library LLC, a Delaware limited liability company (together with its successors
and assigns, "RECP").
WITNESSETH:
WHEREAS, the Company has been formed pursuant to a limited liability
company agreement of the Company (the "Operating Agreement"), dated and
effective as of March __, 2002 (the "Effective Date"), among the ▇▇▇▇▇▇▇
Members, RECP and the Special Member (as defined therein);
WHEREAS, subject to the terms and conditions herein, RECP desires to
contribute $60,000,000 to the Company and Company desires to issue to RECP a
Managing Member Interest in the Company that has the rights, designations,
privileges, preferences, limitations and restrictions set forth in the Operating
Agreement (the "Managing Member Interests").
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereby agree as follows:
1. DEFINITIONS. Capitalized terms used but not defined herein shall have
the meanings set forth in the Operating Agreement, all of which are hereby
incorporated by reference. For purposes of this Agreement, the following terms
shall have the meanings set forth below:
"Agreement" means this Contribution Agreement, as it may hereafter be
amended, supplemented or otherwise modified from time to time.
"BGHS" has the meaning set forth in the introductory paragraph.
"Company" has the meaning set forth in the introductory paragraph.
"Contracts" has the meaning set forth in Section 5(cc).
"Effective Date" has the meaning set forth in the recitals.
"Entitlement Documents" has the meaning set forth in Section 6(uu).
"Equity Placement Fee" means a fee, payable to RECP on the Effective Date,
in the amount of $560,000.
"Extension Notice" has the meaning set forth in the Option Agreement.
"Financial Statements" has the meaning set forth in Section 6(h).
"Governmental Authority" has the meaning set forth in the Operating
Agreement.
"Governmental Entitlements" has the meaning set forth in Section 6(uu).
"Governmental Entitlement Documents" has the meaning set forth in Section
6(uu).
"Indebtedness Documents" has the meaning set forth in Section 6(o).
"Indemnitee" has the meaning set forth in Section 7.
"Indemnitor" has the meaning set forth in Section 7.
"Intangible Rights" has the meaning set forth in Section 6(pp).
"Interest Rate Cap" has the meaning set forth in Section 4.
"Knowledge" has the meaning set forth in the Operating Agreement.
"LAFD" has the meaning set forth in Section 8.
"LUST" has the meaning set forth in Section 8.
"Licenses and Permits" has the meaning set forth in Section 6(k).
"Losses" has the meaning set forth in Section 7.
"▇▇▇▇▇▇▇ Members" has the meaning set forth in the introductory paragraph.
"Managing Member Interests" has the meaning set forth in the recitals.
"Master Escrow Instructions" means the Master Escrow Instructions in
connection with the New Subordinated Debt and the Transfer Documents attached
hereto as Exhibit 1.
"MP" has the meaning set forth in the introductory paragraph.
"New Owners' Title Policy" has the meaning set forth in Section 3(c).
"New York Court" has the meaning set forth in Section 17.
"Operating Agreement" has the meaning set forth in the introductory
paragraph.
"Organizational Documents" has the meaning set forth in the Operating
Agreement.
2
"Permitted Lien" means: (i) any Lien created or permitted by the Loan
Documents, this Agreement or any of the Transaction Documents; (ii) any matters
specifically disclosed on Schedule B-1 of the title insurance policy being
delivered to the Property Owner at the Effective Date (a copy of which Schedule
B-1 is attached hereto); (iii) any vendor liens on personal property owned by
the Company or any of its Subsidiaries; (iv) Liens, if any, for taxes and other
impositions not yet delinquent; (v) mechanics', materialmen's or similar Liens,
if any, and Liens for delinquent taxes, in each case only if being contested in
good faith and by appropriate proceedings, provided that no such Lien is being
foreclosed and provided further that each such Lien is released or discharged
of record by bonding or otherwise; (vi) rights of existing and future tenants
and residents as tenants only pursuant to written Leases existing as of the
Effective Date entered into in conformity with the provisions of this
Agreement; and (vii) any attachment or judgment Lien, provided that (a) the
judgment it secures is discharged within 60 days after the entry thereof, or
(b) execution thereof is stayed within 60 days after the entry of such judgment
pending appeal, and (c) such judgment is not at any time being foreclosed and
is discharged within 60 days after the expiration of any such stay referred to
in clause (b).
"Property Reserves" has the meaning set forth in Section 4.
"RECP" has the meaning set forth in the introductory paragraph.
"Securities Act" has the meaning set forth in Section 6(e).
"Space Leases" has the meaning set forth in Section 6(s).
"Supplemental Cap" has the meaning set forth in Section 5.
"Third Party Claim" has the meaning set forth in Section 7.
"Title Company" has the meaning set forth in Section 3(c).
2. CAPITAL CONTRIBUTION AND ISSUANCE OF MANAGING MEMBER INTERESTS. On the
date hereof, the Company shall issue the Managing Member Interests to RECP
pursuant to the terms of the Operating Agreement in exchange for a capital
contribution of $60,000,000. Upon such contribution and issuance, (i) the
Managing Member Interests shall be validly issued, fully paid and
nonassessable, and (ii) the Company shall admit RECP as a Member of Company
pursuant to the terms of the Operating Agreement.
The Company shall use the capital contribution and the proceeds of the New
Subordinated Debt as described in the Master Escrow Instructions.
3. EFFECTIVE DATE REQUIREMENTS.
(a) On the Effective Date, the ▇▇▇▇▇▇▇ Members shall, to the extent not
already covered by the $300,000 deposit remitted to RECP in contemplation of
the transactions under this Agreement, pay or reimburse RECP and its Affiliates
for all reasonable, actual out-of-pocket costs and expenses, including, without
limitation, survey expenses, documentary and deed stamp taxes and other
transfer taxes, recording fees, any escrow fees,
3
all title insurance premiums, loan fees, investment banking fees, accounting
fees, legal fees, and all other costs and expenses incurred in connection with
the formation of the Company and its contribution to the Company and the
negotiation, preparation and/or review of this Agreement, the other Transaction
Documents, the Loan Documents, and any documents or agreements ancillary herein
or therein, all as described on Schedule 3 attached hereto, that RECP incurred
in connection with the transactions contemplated herein and therein. The
▇▇▇▇▇▇▇ Members shall have the continuing obligation to pay for any reasonable
actual out-of-pocket expenses and costs incurred by RECP or the Company in
connection with any amendments made to any such documents in the future other
than any such amendments that may be effected without the ▇▇▇▇▇▇▇ Members'
consent. On the Effective Date, the ▇▇▇▇▇▇▇ Members shall present evidence of
payment of any and all survey expenses, documentary and deed stamp taxes and
other transfer taxes and recording fees as described above.
(b) On the Effective Date, the Company shall pay RECP the Equity
Placement Fee.
(c) On or prior to the Effective Date, and as a condition to RECP's
deliveries and other obligations hereunder, the ▇▇▇▇▇▇▇ Members shall cause
First American Title Insurance Company ("Title Company") to issue in the name
of Property Owner, an ALTA Extended Coverage Owner's Policy of Title Insurance
(Form 1992), modified to eliminate the creditors' rights exclusion and
arbitration provided therein, with such endorsements as heretofore requested by
RECP, in the form attached hereto as Exhibit 3 (the "New Owners' Title
Policy"), insuring Property Owner in the amount of Three Hundred Sixty-Two
Million Dollars ($362,000,000) that fee title to the Property is vested in
Property Owner as of the Effective Date, subject only to the Permitted Liens.
(d) On or prior to the Effective Date, the ▇▇▇▇▇▇▇ Members shall
establish the Property Reserves and any other reserves required under the Loan
Documents.
(e) On or prior to the Effective Date, the ▇▇▇▇▇▇▇ Members shall
cause all the members of the boards of directors and officers, if any, of each
of the Companies to resign (and shall provide evidence of such resignation to
RECP) and shall cause each such Company to appoint to its board of directors
the persons listed on Schedule 3(e) herein.
(f) On or prior to the Effective Date, each of the ▇▇▇▇▇▇▇ Members
shall amend its Organizational Documents as set forth in the revised
Organizational Documents of the ▇▇▇▇▇▇▇ Members provided to RECP and approved
by RECP prior to the date hereof.
(g) On or prior to the Effective Date, the ▇▇▇▇▇▇▇ Members shall make
all necessary payments to Secured Capital Corp. and present to RECP evidence
that all amounts due thereon were paid in full.
4. RESERVES. Schedule 4 attached hereto lists the reserves
established by the Company and its Subsidiaries on or before the date hereof
other than reserves established under the Loan Documents (the "Property
Reserves"). The Property Reserves shall be deposited in a separate interest
bearing account which shall be in the name of, and under the sole dominion and
control of, RECP, and funds from such accounts shall be released when required
and for the purposes described in Schedule 4, provided, however, that upon the
4
occurrence of a Trigger Event, subject to the Loan Documents, RECP may
distribute such funds in any manner it deems fit, including, without limitation,
to RECP, and the provisions of Sections 4.3(c) and (e) of the Operating
Agreements shall apply to such distributions.
5. REPRESENTATIONS AND WARRANTIES OF ▇▇▇▇▇▇▇ MEMBERS. In addition to the
representations included in the Operating Agreement and as a material inducement
to RECP executing and delivering this Agreement and each of the other
Transaction Documents to which it is a party, each of the ▇▇▇▇▇▇▇ Members,
jointly and severally, hereby makes the following additional representations and
warranties:
(a) All Companies are duly organized and validly existing as limited
liability companies under the laws of the State of Delaware. The Companies are
duly registered and qualified to do business in each jurisdiction where such
registration or qualification is required. The Company has been duly authorized
by all necessary and appropriate action to enter into this Agreement and the
other Transaction Documents to which it is a party, to issue, sell and deliver
the Managing Member Interests and to consummate the transactions contemplated
herein and therein, and the execution and delivery of this Agreement and any
other Transaction Documents have been duly authorized by all necessary and
appropriate actions on behalf of Company. This Agreement and the other
Transaction Documents to which the Company is party are valid and binding
obligations of the Company, enforceable against the Company in accordance with
their respective terms, except insofar as such enforceability may be affected by
bankruptcy, insolvency or similar laws affecting creditor's rights generally and
the availability of any particular equitable remedy.
(b) The issuance, sale and delivery of the Managing Member Interests,
have been duly authorized by all requisite limited liability company actions of
the Company, and upon execution and delivery of the Operating Agreement and the
contribution of the amounts described herein when issued, sold and delivered in
accordance with this Agreement, the Managing Member Interests will be validly
issued and outstanding, fully paid and nonassessable with only limited liability
attaching solely to the ownership thereof, free and clear of any Liens or any
preemptive or any other similar rights of the Members of the Company other than
as set forth in the Operating Agreement and the Option Agreement.
(c) The execution, delivery and performance of this Agreement and the
issuance of the Managing Member Interests do not and will not (with or without
notice or the passage of time): (i) violate or conflict with the Organizational
Documents of any of the Companies, (ii) violate or conflict with any judgment,
decree or order of any court applicable to or affecting any of the Companies or
the Property, (iii) breach the provisions of, or constitute a default under, or
result in the acceleration of any obligation under, any contract, agreement,
instrument or obligation to which any of the Companies are a party to or by
which any of the Companies and/or their respective assets may be bound
(including, without limitation, any lease, loan agreement, mortgage or security
agreement), (iv) violate or conflict with any law, ordinance or governmental
regulation or permit applicable to any of the Companies, or (v) give to any
other person or entity any interest or right (including any right of
termination, acceleration or cancellation or cause the imposition of any Lien)
in or with respect to, any contract, agreement, instrument or obligation
(including, without limitation, any lease, loan agreement, mortgage or security
agreement) to which any of the Companies is a party or the
5
business or operations of any of the companies, the Property or any properties
or assets which are material to the ownership of the Property. Neither the
execution of the Operating Agreement, this Agreement or any Transaction
Documents nor the consummation of the transactions contemplated herein and
therein will require the consent or approval of or registration or filing with
any Governmental Authority or any other Person.
(d) The Organizational Documents of each of the Companies and the
▇▇▇▇▇▇▇ Members are in full force and effect and true, correct and complete
copies of all the Organizational Documents of each of the Companies and the
▇▇▇▇▇▇▇ Members have been delivered by the Company to RECP. Neither the
Company, any of the Subsidiaries, the ▇▇▇▇▇▇▇ Members nor any Member thereof is
in default of any of its obligations under the Organizational Documents of the
Company, any of the Subsidiaries, or the ▇▇▇▇▇▇▇ Members, as appropriate and no
event has occurred or is continuing, and no condition exists, which, with the
passage of time or the giving of notice, or both, would constitute a default
by any such Person.
(e) The sole owners of 100% of all debt and equity interests (other
than the Indebtedness evidenced or secured by the Loan Documents) of the
Companies are those persons listed on Schedule 3.3 of the Operating Agreement.
With respect to each of the Companies: (i) no subscription, warrant, option,
convertible security or other right (contingent or otherwise) to purchase or
acquire any limited liability company interests is authorized or outstanding,
(ii) there is not any commitment or offer of any of the Companies to issue any
subscription, warrant, option, convertible security or such other right, or to
issue or distribute any evidence of indebtedness or assets of the Company,
(iii) none of the Companies has any obligation (contingent or otherwise) to
purchase, redeem or otherwise acquire any limited liability company interests
or any other equity or debt instruments or any interest therein or to pay any
dividend or make any other distribution in respect thereof. No person is
entitled to any preemptive or similar right with respect to the issuance of any
equity interests of any of the Companies, or has been granted any rights with
respect to the registration of any equity of any of the Companies under the
United States Securities ▇▇▇ ▇▇▇▇, as amended (the "Securities Act").
(f) The capital structure of the Companies is as disclosed on Section
5(f) of the Disclosure Schedule. The Company owns (directly or indirectly) good
and marketable title to 100% of the debt and equity interests of each of its
Subsidiaries (other than the Indebtedness evidenced or secured by the Loan
Documents) free and clear of all Liens and competing or adverse claims or
similar rights of any third parties (other than Liens securing the Indebtedness
evidenced by the Loan Documents). The Company has no Subsidiaries other than
those disclosed on Section 5(f) of the Disclosure Schedule.
(g) Except as disclosed on Section 5(g) of the Disclosure Schedule or
the New Owner's Title Policy, the Property Owner has good and marketable title
to 100% of the title and rights to the Property, free and clear of any Liens
other than Permitted Liens. The Subsidiaries and the Property (and any assets
ancillary thereto) are the sole assets of the Companies and the operation and
maintenance of the Property are the sole businesses in which any of the
Companies is engaged. No Person has any right (contingent or otherwise) to
acquire the Property or any portion thereof.
6
(h) The audited balance sheet, earnings statement and statement of
cash flows of the Property Owner as of and for the year ended December 31, 2000
and the unaudited balance sheet, earnings statement and statement of cash flows
of the Property Owner as of and for the year ended December 31, 2001 (such
financial statements, hereinafter referred to, collectively, as the "Financial
Statements"); (i) were or will be prepared in accordance with GAAP applied on a
consistent basis and consistent with the Property Owner's past practice and
books and records (except as noted therein); and (ii) fairly present or will
present the assets, liabilities and financial position of the Property Owner as
of their respective dates, and the results of the Property Owner's operations
and the sources and uses of funds for the periods then ended.
(i) Except as disclosed in the Financial Statements as contemplated
by the Operating Agreement, as listed on Section 5(i) of the Disclosure
Schedule, or for liabilities incurred in the ordinary course of business and in
amounts not greater than $50,000 individually or $250,000 in the aggregate, as
of the Effective Date, (i) the Property Owner has no liability of any nature
(matured or unmatured, fixed or contingent) which was not provided for or
disclosed on the Financial Statements, other than obligations under contracts
and commitments incurred in the ordinary course of business and not required
under GAAP to be reflected, which in both cases, individually and in the
aggregate, are not material, (ii) all liability reserves, if any, established
by the Property Owner were adequate in all respects and were established by the
Property Owner in accordance with GAAP consistently applied, and (iii) there
are no loss contingencies (as such term is used in "Statement of Financial
Accounting Standards No. 5" issued by the Financial Accounting Standards Board
in March 1975) which were not adequately disclosed in the Financial Statements
as required by said Statement No. 5. There were no loss contingencies (as such
term is used in Statement of Financial Accounting Standards No. 5 issued by the
Financial Accounting Standards Board in March 1975) that were not adequately
provided for on the Financial Statements. Except as disclosed on Section 5(i)
of the Disclosure Schedule, since December 31, 2001, there has been no adverse
change in the operation or condition of the Property or any other event
directly affecting the Property and excluding general market conditions that
alone, or together with any other event, would constitute a Material Adverse
Effect. No Trigger Event or event which, but for the giving of notice or the
passage of time, or both, would be an Trigger Event, presently exists.
(j) Except as set forth on Section 5(j) of the Disclosure Schedule,
there are no actions, suits, claims, investigations or proceedings (legal,
administrative or arbitrative) pending or, to the Knowledge of the ▇▇▇▇▇▇▇
Members, threatened by or against: (i) any of the Companies or against (ii) the
Property, whether at law or in equity and whether civil or criminal in nature,
before or by any federal, state, municipal or other court, arbitrator,
governmental department, commission, agency or instrumentality, domestic or
foreign, nor are there any judgments, decrees or orders of any such court,
arbitrator, governmental department, commission, agency or instrumentality
outstanding against or affecting any of the Companies or the Property.
(k) Except as set forth in Section 5(k) of the Disclosure Schedule,
each of the Companies: (i) has complied and is in compliance in all respects
with all federal, state, local and foreign laws, ordinances, regulations and
orders applicable to its businesses or the ownership of its assets, and none of
the Companies has received notice from any
7
Governmental Authority of any claimed default or violation with respect to such
laws, ordinances, rules and regulations; and (ii) has all federal, state, local
and foreign governmental licenses and permits ("Licenses and Permits") necessary
or required to enable it to carry on its business as now conducted and as
proposed to be conducted and for the present and any future contemplated use and
occupancy of the Property or which are necessary to permit the lawful use and
operation of all driveways, roads and other mean of egress and ingress to and
from the Property. The Licenses and Permits, which have been issued to enable
the Companies to conduct their businesses as now conducted and as contemplated
to be conducted, are in full force and effect, no violations have been recorded
in respect of any such Licenses or Permits, and no proceeding is pending or, to
the Knowledge of any of the ▇▇▇▇▇▇▇ Members, threatened to revoke or limit any
thereof. None of the aforesaid Licenses and Permits shall be affected in any
adverse respect by the Operating Agreement, this Agreement or by any Transaction
Documents or any performance thereunder. All work to be performed, payments to
be made and actions to be taken prior to the date hereof pursuant to any
covenant or agreement entered into with a Governmental Authority or any
conditions of approval imposed by any Governmental Authority in connection with
any site approval, zoning reclassification, redevelopment plan or other similar
action relating to the Property has been performed, paid or taken, as the case
may be. There are no planned or proposed work, payments or actions that may be
required after the date hereof pursuant to such agreements or conditions of
approval except for tenant improvements and other capital improvements shown on
the Approved Budget or the Approved Business Plan.
(l) None of the Companies is subject to regulation under the Public
Utility Holding Company Act of 1935, the Federal Power Act, or the Interstate
Commerce Act, each as amended. In addition, none of the Companies is (i) an
"investment company" registered or required to be registered under the
Investment Company Act of 1940, as amended, and is not Controlled by such a
company, or (ii) a "holding company," a "Subsidiary company" of a "holding
company" or an "affiliate" of a "holding company" or a "Subsidiary company" of
a "holding company" within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
(m) None of the Companies is contemplating either the filing of a petition
by it under any state or federal bankruptcy or insolvency laws or the
liquidation of all or a major portion of its assets or property. None of the
▇▇▇▇▇▇▇ Members has any knowledge of any Person contemplating the filing of any
such petition against any of the Companies.
(n) Except as set forth on Section 5(n) of the Disclosure Schedule, and
except for the Leasing Agreement, the Property Management Agreement and the
Consulting Agreement, no current or former Member of any of the Companies or any
Affiliate of any of them, is presently, directly or indirectly through his or
its affiliation with any other person or entity, a party to any transaction with
the Company providing for the furnishing of services by or to, or the sale of
products by or to, or rental of personal property from or to, or otherwise
requiring cash payments to or by, any such Person in excess of an aggregate of
$100,000 per annum.
(o) Section 5(o) of the Disclosure Schedule contains a true, complete and
correct list of the material Loan Documents and all other documents evidencing
material
8
Indebtedness other than Permitted Liens, Contracts or Space Leases (the
"Indebtedness Documents") to which any of the Companies is a party or by which
any of the Companies is bound or that otherwise relate to the Property. True,
complete and correct copies of the Indebtedness Documents have heretofore been
furnished by the ▇▇▇▇▇▇▇ Members to RECP or its attorneys or Beta West Company
for inspection. Each of the Indebtedness Documents constitutes the entire
agreement between any of the Companies and each party thereto, and none of the
Companies have made any oral promises or agreements amending or modifying the
same. Each of the Indebtedness Documents is valid and subsisting and in full
force and effect, subject to their terms, except as the enforceability thereof
may be limited by bankruptcy, insolvency, fraudulent conveyance, fraudulent
transfer, reorganization, moratorium or other similar laws relating to the
enforcement of creditors' rights generally and by general principles of equity.
(p) None of the Companies nor any Affiliate thereof is in default under
any of the Indebtedness Documents. Except as set forth on Section 5(p) of the
Disclosure Schedule, no party to the Indebtedness Documents has given written
notice and the ▇▇▇▇▇▇▇ Members have no Knowledge of any claim (i) that any of
the Companies has defaulted in performing any of its obligations under any of
the Indebtedness Documents which has not heretofore been cured, (ii) that any
condition exists which with the passage of time or giving of notice, or both,
would constitute such a default, or (iii) that such party is entitled to cancel
the Indebtedness Documents or to be relieved of its obligations thereunder.
(q) Other than the reserves and escrows set forth on Section 5(q) of the
Disclosure Schedule and the Property Reserves described in Section 4 herein,
the Property Owner and any other Companies are not required under any contract,
agreement, instrument or obligation (including, without limitation, the
Indebtedness Documents) to which any of the Companies are a party or by which
any of them are bound, to have any funds on reserve or in escrow (whether or
not Controlled by any of the Companies or a third party) and all reserves or
escrows required to be maintained under such contract, agreement, instrument or
obligation (including, without limitation, the Indebtedness Documents) are
fully funded to the extent required as of the date hereof. Section 5(q) of the
Disclosure Schedule sets forth the amounts currently existing in each such
reserve and all requirements for additional funding of any existing reserves
maintained by any of the Companies.
(r) Except as set forth on Section 5(r) of the Disclosure Schedule or as
provided for in the Operating Agreement, none of the Companies has any
obligation to create any additional reserves or escrows pursuant to any
contract, agreement, instrument or obligation (including, without limitation,
the Indebtedness Documents) to which any of the Companies is a party or by
which any of them are bound.
(s) Section 5(s) of the Disclosure Schedule (including the rent roll)
contains a true, complete and correct list of all existing leases, licenses or
other occupancy agreements (including, without limitation, all lease takeover
agreements, parking agreements, indemnity agreements and any other "side"
agreements with the tenants thereunder) to which Property Owner is a party or
by which Property Owner or any Affiliate thereof may be bound, and
modifications thereof and supplements thereto (the "Space Leases"), regardless
of whether the terms thereof have commenced, setting forth with respect to each
(i) the names of the
9
tenant, (ii) the identification of each rentable space in the Property, (iii)
the commencement date and expiration date thereof, (iv) the minimum or fixed
monthly rent payable thereunder, (v) the square footage covered thereby, (vi)
the percentage rent rate and the sales breakpoint for computing percentage rent
(if any) thereunder, (vii) the unapplied amount of any security deposit held
thereunder, and (viii) all outstanding rent abatements, tenant allowances or
other tenant concessions, renewal options and kickout clauses provided therein.
True, complete and correct copies of each of the Space Leases have heretofore
been furnished by the ▇▇▇▇▇▇▇ Members to RECP, or its attorneys or Beta West
Company, for inspection. Each of the Space Leases constitutes the entire
agreement between Property Owner and each party thereto, and neither Property
Owner nor any predecessor in title has made any oral promises or agreements
amending or modifying the same. Each of the Space Leases is valid and
subsisting and in full force and effect subject to their terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, fraudulent transfer, reorganization, moratorium or other similar
laws relating to the enforcement of creditors' rights generally and by general
principles of equity.
(t) No deposit, including letters of credit, are held by Property
Owner or Property Owner's agent in connection with the Space Leases, except the
security deposits or letters or credit described on Section 5(t) of the
Disclosure Schedule. Except in connection with the Existing Mortgage Debt and
the New Subordinated Debt, no security deposits are subject to any liens,
security interests or adverse claims, and no security deposits have been or will
be assigned to any party, or otherwise pledged or encumbered in any way, except
as set forth on Section 5(t) of the Disclosure Schedule. No rents or other
payments due under any of the Space Leases have been paid more than 30 days in
advance of the dates set forth in the Space Leases, except only for sundry
charges that are prepaid by tenants or the overpayment of escalation charges
under the Space Leases which are to be refunded or credited to such tenants,
provided that the aggregate amount of such prepayments (other than the prepaid
rent from Huntington Holdings as listed on Schedule 4 herein) does not exceed
$50,000. Except in connection with the Existing Mortgage Debt and the New
Subordinated Debt, no rents or other payments are subject to any Liens, security
interests or adverse claims, and no rents or other payments have been or will be
assigned to any party, or otherwise pledged or encumbered in any way, except as
set forth on Section 5(t) of the Disclosure Schedule.
(u) Except as set forth in Section 5(u) of the Disclosure Schedule or
in any estoppels delivered under the Space Leases in connection herewith,
neither the Property Owner nor any Affiliate thereof is in default under any of
the Space Leases. Except as set forth on the Section 5(u) of the Disclosure
Schedule or in such tenant estoppels, no tenant has given any written notice
and the ▇▇▇▇▇▇▇ Members have no Knowledge (i) that Property Owner or any of
Property Owner's predecessors in title has defaulted in performing any of its
obligations under any of the Space Leases which has not heretofore been cured,
(ii) that any condition exists which with the passage of time or giving of
notice, or both, would constitute such a default which condition has not
heretofore been rectified, (iii) that such tenant is or may be entitled to any
reduction in, refund of, or counterclaim or offset against, or is otherwise
disputing, any rents or other payments which are paid, payable or to become
payable by such tenant, (iv) that such tenant is or may be entitled to cancel
its Space Lease or to be relieved of its operating covenants thereunder or (v)
that such tenant contests either (x) its pro-rata share
10
of tax increases as required by its Space Lease, or (y) any rent, escalation or
other charge billed to it thereunder.
(v) Except as set forth on Section 5(v) of the Disclosure Schedule
(including the rent roll) to the Knowledge of the ▇▇▇▇▇▇▇ Members, no tenant is
in default under any Space Lease, and Property Owner has not given any written
notice (or intends to give any written notice) (i) that any tenant has
defaulted in performing any of its obligations under its Space Lease which has
not heretofore been cured, (ii) that any condition exists which with the
passage of time or giving of notice, or both, would constitute such a default,
which condition has not heretofore been rectified, or (iii) that Property Owner
is entitled to cancel such Space Lease or to be relieved of its operating
covenants thereunder.
(w) There is no "free rent," rent abatement or other tenant
concession or inducement, including, without limitation, lease assumptions or
buy-outs, applicable to any of the Space Leases except as set forth on Section
5(w) of the Disclosure Schedule (including the rent roll) or in any tenant
estoppel delivered under the Space Leases and delivered to RECP or its
attorneys or Beta West Company. There are no options or rights to renew, extend
or terminate the Space Leases, except as set forth on Section 5(w) of the
Disclosure Schedule or the rent roll or in any tenant estoppel delivered under
the Space Leases and delivered to RECP or its attorneys or Beta West Company.
No tenant has any rights, options or rights of first refusal of any kind to
purchase or to otherwise acquire the Property or any part thereof. Except as
set forth in the Section 5(w) of the Disclosure Schedule (or in any tenant
estoppel delivered under the Space Leases and delivered to RECP or its
attorneys or Beta West Company,) all of the improvements to be constructed by
the landlord under each of the Space Leases, or as required under any
collateral agreement, or any plans or specifications related to the Space
Leases, have been fully completed and paid for.
(x) Section 5(x) of the Disclosure Schedule (including the rent roll)
contains a schedule of tenants who are in arrears of rents or other payments
which are payable as of the date hereof, together with the amount of such
arrearages and the period of such arrearages.
(y) No tenant has been charged in excess of the amounts due to
Property Owner under its lease, including rent and additional charges.
(z) Except as set forth in Section 5(z) of the Disclosure Schedule,
no tenant under a Major Lease and, to the ▇▇▇▇▇▇▇ Members' Knowledge, under any
other Space Lease, is the subject of any bankruptcy, reorganization, insolvency
or similar proceedings. Property Owner does not have any knowledge that any
tenant has threatened any bankruptcy, reorganization, insolvency or similar
proceedings.
(aa) Section 5(aa) of the Disclosure Schedule sets forth a list of all
spaces (except for storage space) in the Property which are not subject to a
lease, license, occupancy agreement or other occupancy right.
(bb) Except as set forth in Section 5(bb) of the Disclosure Schedule,
no tenant under a Space Lease has, to the Knowledge of ▇▇▇▇▇▇▇ Members, ceased
or reduced
11
operations at the Property (other than temporarily due to Casualty, remodeling,
renovation or similar cause).
(cc) Section 5(cc) of the Disclosure Schedule contains a true, correct and
complete list of all service contracts, management agreements, brokerage
agreements, parking agreements and third-party contracts, including all
modifications thereof and supplements thereto (the "Contracts") to which any of
the Companies is a party or by which the Property is bound except for Contracts
terminable on no more than 60 days notice, with or without cause, and without
penalty, having a term of no more than one year, and which involve payment of
or receipt of amounts not in excess of $50,000 individually or $250,000 in the
aggregate. True, complete and correct copies of the Contracts have heretofore
been furnished by the ▇▇▇▇▇▇▇ Members to RECP or its attorneys or Beta West
Company, for inspection. Each of the Contracts constitutes the entire agreement
between the relevant entity and each party thereto, and none of the Companies
has made any oral promises or agreements amending or modifying the same. Each of
the Contracts is valid and subsisting and in full force and effect, subject to
their terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, fraudulent transfer, reorganization,
moratorium or other similar laws relating to the enforcement of creditors' right
generally and by general principles of equity.
(dd) The Property Owner is not in material default under any Contract
after notice and lapse of any applicable cure periods under any of the
Contracts. Except as set forth on Section 6(dd) of the Disclosure Schedule, no
party to the Contracts has made any claim (i) that any of the Companies has
defaulted in performing any of its obligations under any of the Contracts which
has not heretofore been cured, (ii) that any condition exists which with the
passage of time or giving of notice, or both, would constitute such a default,
which default has not heretofore been rectified, or (iii) that such party is
entitled to cancel its Contract or to be relieved of its obligations thereunder.
(ee) Except as set forth on Section 5(ee) of the Disclosure Schedule, to
the Knowledge of the ▇▇▇▇▇▇▇ Members, no party is in default under any of the
Contracts, and none of the Companies has made any claim (or intends to make
any claim) (i) that any party has defaulted in performing any of its
obligations under any of the Contracts which has not heretofore been cured,
(ii) that any condition exists which with the passage of time or giving of
notice, or both, would constitute such a default, which condition has not
heretofore been rectified, or (iii) that any of the Companies is entitled to
cancel the Contracts or to be relieved of its obligations thereunder.
(ff) Except as set forth in Section 5(ff) of the Disclosure Schedule, the
Companies have no employees, have no collective bargaining or union agreements
and have no employer liability with respect to any Person employed at or in
connection with the operation of the Property. There are no pending claims, or,
to the Knowledge of the ▇▇▇▇▇▇▇ Members, any threatened claim by any persons
who are employed by the Property Owner in connection with the operation of the
Property.
(gg) The installation of all utility services necessary for the
construction, development and operation of the existing improvements on the
Property has
12
been completed, including, without limitation, adequate water supply, storm and
sanitary sewer facilities, electrical, and telephone facilities. Property
Owner, to the extent required, has received permission from the appropriate
Governmental Authority and/or the provider of each utility service to connect
the existing improvements on the Property to each utility service.
(hh) Except as set forth on Section 5(hh) of the Disclosure Schedule, the
Property is an independent unit which does not now rely on any facilities
(other than facilities of municipalities or public utility and water companies)
located on any property not included in the Property (including parking
facilities) to fulfill any municipal or governmental requirement or for the
furnishing to the Property or any occupant thereof of any essential building
systems, utilities or services, including but not limited to, water,
electrical, plumbing, mechanical and heating, ventilating and air conditioning
systems, drainage facilities, catch basins and retention ponds, sewage treatment
facilities, parking facilities and the like. No building or other improvement
not included as part of the Property relies on any part of the Property to
fulfill any governmental or municipal requirement or to provide facilities to
such building or improvement for any essential building systems or utilities,
including, without limitation, electrical, plumbing, mechanical, sewage
treatment or heating, ventilating and air conditioning facilities or services.
(ii) No Condemnation proceeding or other proceeding or action in the nature
of eminent domain is pending or to the Knowledge of the ▇▇▇▇▇▇▇ Members
threatened with respect to all or part of the Property.
(jj) No notice has been received that there is, and, to the Knowledge of
the ▇▇▇▇▇▇▇ Members, except as set forth in Section 5(jj) of the Disclosure
Schedule, there does not now exist, any violation of any restriction, condition
or agreement contained in any easement, restrictive covenant or any similar
instrument or agreement affecting the Property or any portion thereof.
(kk) Property Owner has not and shall not consent to or initiate the joint
assessment of the Property with any other real property constituting a separate
tax lot. The Property is comprised of one or more parcels, each of which
constitutes a separate tax lot and none of which constitutes a portion of any
other tax lot of another property.
(ll) True, correct and complete copies of current real estate tax bills,
notices of assessments and any petitions, appeals or related documents with
respect to the Property, have been delivered or made available by the ▇▇▇▇▇▇▇
Members to RECP or its attorneys or Beta West Company for inspection. No
portion of the Property comprises part of a tax parcel which includes property
other than property comprising all or a portion of the Property. Except as set
forth in Section 6(ll) of the Disclosure Schedule, no application or proceeding
is pending with respect to a reduction or an increase of such property taxes or
any change in the tax assessment of the Property, nor, to the Knowledge of the
▇▇▇▇▇▇▇ Members, is there any threatened or anticipated future special
assessment that will result in an increase in the tax assessment for the
Property or any portion thereof. Except as set forth in Section 5(ll) of the
Disclosure Schedule, there are no tax refund proceedings relating to the
Property which are currently pending. Except for the Permitted Liens, there are
no special taxes or
13
assessments which have become a Lien or which, to the Knowledge of the ▇▇▇▇▇▇▇
Members, may be levied against the Property.
(mm) Section 5(mm) of the Disclosure Schedule contains a true and accurate
list of all Property Owner's policies of insurance with respect to the Property.
The insurance coverage the Companies currently have complies with the
requirements of the Loan Documents. All premiums for such insurance have been
paid in full or as required by the insurer. Except as set forth in Section 5(mm)
of the Disclosure Schedule, no act has been performed, permitted or suffered any
act or omission which would cause the insurance coverage provided in said
policies to be reduced, canceled, denied or disputed and there has been no
notice or request from any insurance company or Board of Fire Underwriters (or
organization exercising functions similar thereto) canceling or threatening to
cancel any of said policies or denying or disputing coverage thereunder.
(nn) To the Knowledge of the ▇▇▇▇▇▇▇ Members, there are no material structural
or other material physical defects in the improvements or any component or
system of the improvements, and none of the Property is now damaged or injured
as a result of any fire, explosion, accident, flood or other Casualty.
(oo) All of the documents and books and records that have been delivered or
made available to RECP or its attorneys or Beta West Company, by the ▇▇▇▇▇▇▇
Members and/or otherwise on behalf of the Companies are true, correct and
complete copies of what they purport to be. All information set forth in the
exhibits and schedules to the Operating Agreement and this Agreement is true,
correct and complete in all material respects and not misleading in any material
respect. There are no significant adverse facts or conditions relating to the
Property or the financial condition of the Companies, to the Knowledge of the
▇▇▇▇▇▇▇ Members, which have not been specifically disclosed in writing by or on
behalf of the ▇▇▇▇▇▇▇ Members to RECP or its attorneys or Beta West Company
(excluding general market conditions).
(pp) The conduct of the Companies' business does not infringe upon the
patents, trademarks, trade names, service marks, copyrights or other
intellectual property rights of any third party, and to the Knowledge of the
▇▇▇▇▇▇▇ Members, no third parties are currently infringing upon the patents,
trademarks, trade names, service marks, copyrights or other intellectual
property rights of the Companies. Property Owner possesses all licenses,
permits, franchises, patents, copyrights, trademarks, trade names, service marks
or rights thereto, necessary to own and operate the Property and to conduct its
business as now conducted (collectively, together with the rights described in
subparagraph (qq) below, the "Intangible Rights").
(qq) The name "LIBRARY TOWER," does not infringe, dilute or otherwise
interfere with or violate the rights of any third party. Neither Property Owner
nor any predecessor nor any of the other Companies has granted to any person a
license, a security interest or other right to use the name "LIBRARY TOWER."
(rr) The Company and each of the Subsidiaries has filed all tax returns as
required during the past 3 years, to the extent applicable.
14
(ss) No other Person other than ▇▇▇▇▇▇▇, ▇▇▇▇ Lammas, ▇▇▇▇▇▇ ▇▇▇▇▇ and
▇▇▇▇▇ ▇▇▇▇▇▇▇ employed by or associated with the ▇▇▇▇▇▇▇ Members has any
material knowledge related to the Property or the Companies that the Persons
listed herein do not have and, to the extent any such person exists, such Person
shall, immediately and without further action, deemed to be added to the list
herein.
(tt) The ▇▇▇▇▇▇▇ Members have paid or will pay (or have reserved for) all
costs and expenses, including, without limitation, survey expenses, documentary
and deed stamp taxes and other transfer taxes, recording fees, any escrow fees,
all title insurance premiums, loan fees, investment banking fees, accounting
fees, legal fees and all other costs and expenses incurred in connection with
the Delacourt Buy-Out, the Prior Company Contribution, the Junior Mezzanine
Contribution, the Prior Company Distribution, the ▇▇▇▇▇▇▇ Members Contribution,
the transactions contemplated by the Loan Documents and the Transaction
Documents and all other transactions in connection therewith.
(uu) The Disclosure Schedule contains a true, correct and complete list of
all material documents and other writings (the "Governmental Entitlement
Documents") comprising any and all material licenses, permits, variances,
waivers, approvals, certificates, resolutions, conditions of approval and other
authorizations and entitlements, (collectively, the "Governmental
Entitlements"), adopted, issued, granted or implemented by any Governmental
Authority which are (i) necessary for the lawful operation of the Property and
(ii) reasonably necessary for the development, construction, maintenance, use,
ownership, leasing and/or operation of all existing improvements on the
Property. True, correct and complete copies of all material Governmental
Entitlement Documents have been furnished or otherwise been made available to
RECP for inspection. Each of the Governmental Entitlement Documents is binding
and in full force and effect subject to the terms thereof. There are no breaches
or defaults with respect to the Governmental Entitlements, and no event exists
which with notice or lapse of time or both would constitute a breach or default
thereunder, except as otherwise set forth on the Disclosure Schedule. There are
no pending or, to the ▇▇▇▇▇▇▇ Members' Knowledge, threatened, actions, suits or
proceedings to revoke, attack, invalidate, rescind or modify the Governmental
Entitlements or to otherwise assert that the Governmental Entitlements or the
terms and conditions of the Governmental Entitlement Documents do not permit the
current or contemplated use of the Property or the development, construction,
reconstruction, maintenance, use, ownership, leasing or operation of the
existing improvements thereon and therein. There are no material licenses,
permits, variances, waivers, approvals, certificates, resolutions, conditions of
approval or other authorizations or entitlements other than those listed on the
Disclosure Schedule which are necessary or required from any Governmental
Authority in order to develop, construct, reconstruct, maintain, use, own, lease
or operate the existing improvements on the Property.
(vv) Except as set forth in Section 5(vv) of the Disclosure Schedule, there
are no outstanding fees, payments, deposits, letters of credit, bonds, or other
form of monetary obligation required from the Property Owner or any Affiliate
thereof to secure the performance of any existing or contemplated obligation to
any Governmental Authority in connection with the development, construction,
maintenance or operation of any existing or proposed improvements on the
Property.
15
(ww) The tax basis, accumulated depreciation, adjusted tax basis and
depreciation and cost recovery methods which the Property Owner and/or the
Prior Company have utilized with respect to each component of the Property as
of December 31, 2001 and as of the Effective Date, both for California and
Federal tax purposes, are as set forth on Section 5(ww) of the Disclosure
Schedule. Except as set forth in Section 5(ww) of the Disclosure Schedule,
neither the Property Owner, the Prior Company nor their respective tax matters
partners have received written notice of a tax audit of any kind with respect
to the Property Owner and/or the Prior Company nor has the Property Owner, the
Prior Company or their respective tax matters partners received written notice
with respect to a claim for assessment or collection of any tax with respect
to the Property Owner and/or the Prior Company. Except as set forth in Section
5(ww) of the Disclosure Schedule, the Property Owner, the Prior Company and
their respective tax matters partners have no outstanding agreements or waivers
extending or waiving any statute of limitations with respect to the collection
or assessment of any tax with respect to the Property Owner, the Prior Company
or any of their respective direct or indirect members, partners or
shareholders. The ▇▇▇▇▇▇▇ Members have delivered to RECP for inspection true
and correct copies of the California and Federal income tax returns of the
Property Owner and the Prior Company for the years 2000, 1999 and 1998, and the
▇▇▇▇▇▇▇ Members agree that they shall promptly deliver copies of prior year
returns upon the request of RECP at any time hereafter. The Property Owner and
the Prior Company have completed their California and Federal 2001 tax returns,
and delivered copies thereof to RECP prior to the date hereof, and such 2001
returns accurately reflect the adjusted tax basis of the Property and the
component parts thereof for California and Federal tax purposes and the
depreciation and cost recovery methods utilized by the Property Owner and/or
the Prior Company.
(xx) The ▇▇▇▇▇▇▇ Members have delivered or made available to RECP or
Beta West for inspection (a) all material information in the possession of the
▇▇▇▇▇▇▇ Members and their Affiliates that (a) relates to the physical condition
of the Property, including, without limitation, the results of all soils tests,
geological reports, environmental assessments (which may include Phase I and
Phase II studies), structural or other inspection reports, (b) copies of all
current and proposed operating and capital budgets, (c) the last annual CAM
reconciliation report and an estimate of such CAM reconciliations for the
current year, and (d) all of the following with respect to the Property: (i) a
complete set of architectural and structural plans and specifications
(including, to the extent available, mechanical, electrical and plumbing plans
and specifications), any tenant improvement plans and specifications, permits,
certificates of occupancy and all inspection reports or notices of
noncompliance issued by any private or Governmental Authority, and (ii) a
report containing the as-built floor plans and usable and rentable square
footage of the Property.
(yy) Neither the Operating Agreement, this Agreement nor any other
Transaction Documents nor any certificate, instrument or statement furnished or
made to RECP by or on behalf of the Company in connection with the investment
by RECP in the Company contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
contained herein and therein, in light of the circumstances in which they were
made, not misleading in a material respect.
(zz) Except as set forth in Section 5(zz) of the Disclosure Schedule
or in the Indebtedness Documents, the ▇▇▇▇▇▇▇ Members and the Companies (other
than the
16
Property Owner) have no debts, liabilities or obligations, whether known,
unknown, accrued, absolute, contingent or otherwise, and whether due or to
become due, other than, solely with respect to the ▇▇▇▇▇▇▇ Members, contingent
obligations and liabilities (which do not include liabilities of or with respect
to borrowed money) incurred in the ordinary course of business in connection
with their ownership of interests in the Property or the ▇▇▇▇▇ Fargo Center in
downtown Los Angeles, California.
(aaa) All the representations and warranties made by ▇▇▇▇▇▇▇, the
▇▇▇▇▇▇▇ Members, any of the Companies or any of their respective Affiliates to
the lenders in the New Subordinated Debt documents and in any amendment to the
Existing Mortgage Debt documents are true and correct in every material respect.
6. INTEREST RATE CAP. On or prior to the Effective Date, the ▇▇▇▇▇▇▇
Members shall, on behalf of and for the benefit of the Senior Mezzanine Borrower
and the Junior Mezzanine Borrower, purchase and thereafter maintain in effect in
accordance with the Loan Documents until the third anniversary of the Effective
Date (or the date on which the Property is sold, if earlier), an interest rate
cap agreement with a counterparty acceptable to the Senior Mezzanine Lender and
the Junior Mezzanine Lender and having a credit rating of at least "AA" from
Standard & Poor's (the "Interest Rate Cap"). The Interest Rate Cap shall have a
term of at least 36 months commencing on the Effective Date and a notional
amount equal to the combined principal amount of the New Mezzanine Debt on the
Effective Date. The ▇▇▇▇▇▇▇ Members shall on or prior to the delivery of an
Extension Notice extend the term of the Interest Rate Cap for an additional one
year period covering a notional amount equal to the combined principal amount of
the New Mezzanine Debt as of the date of the Extension Notice (any such
extension to the Interest Rate Cap, a "Supplemental Cap"). The Interest Rate Cap
shall have a LIBOR strike price of 400 basis points for the first year, 500
basis points for the second year and 600 basis points for the third year and the
Supplemental Cap shall have a LIBOR strike price of 500 basis points. The
Interest Rate Cap and Supplemental Cap shall be paid for by the ▇▇▇▇▇▇▇ Members
in full in advance as set forth above, shall be collaterally assigned by the
▇▇▇▇▇▇▇ Members, and, if necessary, the Senior Mezzanine Borrower and the Junior
Mezzanine Borrower, to the Senior Mezzanine Lender and the Junior Mezzanine
Lender as security for the New Subordinated Debt in a manner satisfactory to the
Senior Mezzanine Lender and the Junior Mezzanine Lender. The failure by the
▇▇▇▇▇▇▇ Members to purchase or maintain the Interest Rate Cap or any
Supplemental Cap in accordance with the foregoing shall constitute a Trigger
Event; provided, however, if such Supplemental Cap or Interest Rate Cap no
longer satisfies the requirements under the Loan Documents other than due to any
action or omission of the ▇▇▇▇▇▇▇ Members, such event shall not constitute a
Trigger Event if the ▇▇▇▇▇▇▇ Members shall, not later than 3 Business Days prior
to the expiration of any grace period provided for under the Loan Documents
obtain a replacement Supplemental Cap or Interest Rate Cap that satisfies the
requirements under the Loan Documents.
7. INDEMNITY. The representations made by the ▇▇▇▇▇▇▇ Members in Section 6
herein shall survive for so long as RECP is a Member of the Company and has
indefeasibly received the Managing Member Return, notwithstanding any
investigation of such representations, and such representations and all other
conditions to RECP's performance hereunder shall not be considered waived by
RECP, upon execution of this Agreement or otherwise merged with any instrument
of conveyance executed in connection herewith.
17
In addition to any other remedies RECP may have under this Agreement and
otherwise, the ▇▇▇▇▇▇▇ Members, jointly and severally, shall indemnify and hold
harmless RECP against any claims, causes of action, demands, obligations,
losses, diminution in value, liabilities, damages, judgments, costs and
expenses (including reasonable fees and expenses of counsel) (collectively,
"Losses") that RECP may suffer, sustain or become subject to as a result of (i)
any misrepresentation of any of the ▇▇▇▇▇▇▇ Members representations included in
Section 5 herein; or (ii) the breach of any covenant herein including, without
limitation, any Losses incurred by RECP in enforcing this indemnity. If the
▇▇▇▇▇▇▇ Members do not pay such amounts when due, the ▇▇▇▇▇▇▇ Members shall pay
interest thereon at a rate of 25% per annum (compounded monthly) not to exceed
the highest rate allowed by law.
In addition, RECP on the one hand and the ▇▇▇▇▇▇▇ Members, jointly and
severally, on the other hand, shall each indemnify each other for any Losses
suffered, sustained or to which each such indemnified party (or its Affiliates)
becomes subject as a result of any liability to the lenders of the New
Subordinated Debt pursuant to the guaranties provided by such indemnified party
(or its Affiliates) to the extent that a court of applicable jurisdiction makes
a determination, from which no appeal can be made, that such liability results
from actions of the indemnifying party (or the indemnifying party's Affiliates).
With respect to any claims of third parties covered under this indemnity
(a "Third Party Claim"), the following terms and conditions shall control:
(a) The indemnifying party (the "Indemnitor") shall give the
indemnified party (the "Indemnitee") prompt written notice of any Third Party
Claim. Any such notice shall identify with reasonable specificity the basis for
the Third Party Claim, the facts giving rise to the Third Party Claim, and the
amount of the Third Party Claim (or, if such amount is not yet known, a
reasonable estimate of the amount of the Third Party Claim). The Indemnitee
shall make available to the Indemnitor copies of all relevant documents and
records in its possession. Failure to give prompt notice shall not relieve the
Indemnitor of its obligation to indemnify except if and to the extent that the
Indemnitor is actually prejudiced by the delay in giving notice. The Indemnitor
shall be entitled to defend or prosecute the Third Party Claim at its expense
and through counsel of its own choosing, reasonably acceptable to Indemnitee,
if the Indemnitor gives written notice to the Indemnitee of its intention to do
so no later than the fifteenth day following receipt of such notice of the
Third Party Claim, provided, however, that the Indemnitee shall have the right
(i) to participate through counsel of its own choosing at its own expense; and
(ii) to assume control of the defense and prosecution of the Third Party Claim,
at the Indemnitor's expense, if there is a conflict of interest between the
Indemnitor and Indemnitee in connection with the defense or prosecution of such
Third Party Claim.
(b) If the Indemnitor, within 15 days after notice of any Third
Party Claim, fails to assume the defense in accordance with the provisions
above, the Indemnitee shall have the right, at the expense of the Indemnitor, to
undertake the prosecution, defense, compromise or settlement of the Third Party
Claim.
(c) The Indemnitor shall not, without the written consent of
the Indemnitee settle or compromise any Third Party Claim or consent to the
entry of judgment which does not include as an unconditional term thereof the
giving by the claimant or the
18
plaintiff to Indemnitee of an unconditional release from all liability in
respect of the Third Party Claim (and will contain no restriction on
Indemnitee's operation of its business).
8. ▇▇▇▇▇▇▇ POST CLOSING OBLIGATIONS. The ▇▇▇▇▇▇▇ Members shall perform
or cause to be performed the following actions at their sole cost and expense:
(a) as promptly as practicable after the Effective Date, New Hope Place shall be
dedicated to the City of Los Angeles as a public right-of-way and a release from
the Covenants and Agreement Regarding Conditions of Street Vacation (as defined
therein) recorded as Instrument No. 87-853242 on May 29, 1987 shall be obtained
from the City of Los Angeles and thereafter recorded; (b) as promptly as
practicable after the Effective Date, a termination or modification of the
existing Covenant and Agreement Regarding Maintenance of Off-Street Parking
Space (as defined therein) recorded as Instrument No. 90-976086 on May 31, 1990
shall be obtained from the City of Los Angeles and a replacement covenant shall
be recorded requiring the maintenance of 927 usable and accessible parking
spaces at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ for the benefit of ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, or a
minimum of 942 usable and accessible parking spaces shall be provided at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ for the benefit of the property located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇; (c) as promptly as practicable after the Effective Date record a
clarification/correction of the legal descriptions of Parcels ▇, ▇-▇, ▇-▇ and C
(Parcel A is the Driveway to Subsurface, parcels B-1 and B-2 are Pedestrian
Access to and from Garage for Staircase, Elevator or Escalator and Parcel C is
Library Plaza Footprint (as defined in Exhibit A of that certain Grant Deed
(Garage Plaza Parcel) recorded as Instrument No. 87-853230 on May 29, 1987))
such that these legal descriptions are revised to describe the actual locations
of the existing improvements constructed on the Garage Plaza Parcel; (d) as
promptly as practicable after the Effective Date, (I) secure and provide the
RECP written documentation from the City of Los Angeles Fire Department ("LAFD")
indicating that no further action is required with respect to the release from a
leaking underground storage tank ("LUST") that occurred in or about 1987 and
written confirmation that the LAFD has closed the LUST case or otherwise removed
the Property from the LAFD's "open" LUST case list, and (II) take all steps
necessary either to have the Property removed from the State of California LUST
and ▇▇▇▇▇▇▇ environmental databases or to have such databases indicate that the
LUST release which gave rise to the listing of the Property on such databases
has been closed; (e) within 60 days following the Effective Date, complete the
actions listed on the "Immediate Repairs and Deferred Maintenance Cost
Estimates" portion of Annex 1 to Schedule 4 herein; and (f) within 6 months of
the Effective Date, complete the actions listed on the "Short Term (0-1 Year)
Cost Estimate" portion of Annex 1 to Schedule 4 herein.
9. AUTHORIZED SIGNATORIES. The persons executing this Agreement for and
on behalf of the Company each represent that they have the requisite authority
to bind the Company.
10. EXPENSES. The Company agrees to pay on demand all out-of-pocket
expenses (including the reasonable fees and expenses of attorneys) in any way
relating to the enforcement or protection of the rights of any party to this
Agreement. If the Company does not pay such expenses upon demand, the Company
shall pay interest thereon at a rate of 25% per annum (compounded monthly) not
to exceed the highest rate allowed by law.
19
11. NO WAIVER; CUMULATIVE RIGHTS. No failure on the part of RECP to
exercise, and no delay in exercising, any right, remedy, or power hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, remedy, or power by RECP hereunder preclude any other or future
exercise of any right, remedy, or power by RECP. The remedies herein provided
are cumulative and not exclusive of any remedies provided by law or in equity.
12. ASSIGNMENT. This Agreement shall be binding upon the Company and the
▇▇▇▇▇▇▇ Members and upon their successors and assigns and shall inure to the
benefit of and be enforceable by RECP and its respective transferees,
successors and assigns under the Operating Agreement and the other Transaction
Documents. The Company and the ▇▇▇▇▇▇▇ Members may not assign, transfer or
delegate their respective rights, interests or obligations, in whole or in
part, under this Agreement to any other Person, and any purported assignment or
delegation hereof in violation of the foregoing shall be null and void. Subject
to the foregoing, without limiting the effect of specific references in any
provision of this Agreement, all references herein to the Company and the
▇▇▇▇▇▇▇ Members shall be deemed to include their respective heirs, executors,
administrators, legal representatives, successors and permitted assigns, all of
whom shall be bound by the provisions of this Agreement. The successors and
permitted assigns of the Company and the ▇▇▇▇▇▇▇ Members shall include, without
limitation, their respective receivers, trustees or debtors-in-possession.
13. HEADINGS AND CAPTIONS. All headings and captions contained in this
Agreement are inserted for convenience only and shall not be deemed a part of
this Agreement.
14. VARIANCE OF PRONOUNS. All pronouns and all variations thereof shall
be deemed to refer to the masculine, feminine or neuter, singular or plural, as
the identity of the person or entity may require.
15. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original and all of which, when
taken together, shall constitute one agreement.
16. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to conflict
of law provisions thereof.
17. CONSENT TO JURISDICTION. To the fullest extent permitted by law, the
Company hereby irrevocably consents and agrees, for the benefit of each party,
that any legal action, suit or proceeding against it with respect to its
obligations, liabilities or any other matter under or arising out of or in
connection with this Agreement, and with respect to the enforcement,
modification, vacation or correction of an award rendered in an arbitration
proceeding, shall be brought in any city, state or federal court located in the
Borough of Manhattan, The City of New York (a "New York Court"), and hereby
irrevocably accepts and submits to the jurisdiction of each such New York Court
with respect to any such action, suit or proceeding. The Company hereto also
hereby irrevocably consents and agrees, for the benefit of each other party,
that any legal action, suit or proceeding against it shall be brought in any
New York Court, and hereby irrevocably accepts and submits to the exclusive
jurisdiction of each such New York Court with respect to any such action, suit
or proceeding. The Company
20
hereto waives any objection which it may now or hereafter have to the laying of
venue of any of the aforesaid actions, suits or proceedings brought in any such
New York Court and hereby further waives and agrees not to plead or claim in any
such New York Court that any such action, suit or proceeding brought therein has
been brought in an inconvenient forum. Each party agrees that (i) to the fullest
extent permitted by law, service of process may be effectuated hereinafter by
mailing a copy of the summons and complaint or other pleading by certified mail,
return receipt requested, at its address set forth above and (ii) all notices
that are required to be given hereunder may be given by the attorneys for the
respective parties.
18. NO THIRD PARTY BENEFICIARIES. Except as expressly stated herein, this
Agreement is not intended and shall not be construed as granting any rights,
benefits or privileges to any Person not a party to this Agreement.
19. CONSTRUCTION OF DOCUMENTS. The parties hereto acknowledge that they
were represented by separate and independent counsel in connection with the
review, negotiation and drafting of this Agreement and that this Agreement shall
not be subject to the principle of construing its meaning against the party that
drafted same.
20. EFFECTIVENESS; TERMINATION. The obligations of the Company and the
▇▇▇▇▇▇▇ Members under this Agreement shall terminate upon the indefeasible
redemption or purchase of the Managing Member Interests pursuant to the
Operating Agreement or the Option Agreement. This Agreement shall become
effective with respect to the Company and the ▇▇▇▇▇▇▇ Members upon its execution
by the Company and the ▇▇▇▇▇▇▇ Members and except as otherwise provided herein
shall continue in full force and effect and may not be terminated or otherwise
revoked. If, notwithstanding the foregoing, the Company and the ▇▇▇▇▇▇▇ Members
shall have any right under applicable law to determine or revoke this Agreement,
each of the Company and the ▇▇▇▇▇▇▇ Members agrees that such termination or
revocation shall not be effective until a written notice of such revocation or
termination, specifically referring hereto, signed by the Company or the ▇▇▇▇▇▇▇
Members, as appropriate, is actually received by RECP. Such notice shall not
affect the right and power of RECP to enforce rights arising prior to receipt of
the notice.
21. WAIVER OF JURY TRIAL. EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY
WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION (A) ARISING UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY
PRESENT OR FUTURE MODIFICATION THEREOF OF (B) IN ANY WAY CONNECTED OR RELATED OR
INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO
THIS AGREEMENT (AS NOW OR HEREAFTER MODIFIED) OR ANY OTHER INSTRUMENT, DOCUMENT
OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS
RELATED HERETO OR THERETO, IN EACH CASE WHETHER SUCH CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION IS NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN
CONTRACT OR TORT OR OTHERWISE; AND THE COMPANY HEREBY AGREES AND CONSENTS THAT
ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT
TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF THE
21
PARTIES HERETO TO THE WAIVER OF ANY RIGHT THEY MIGHT OTHERWISE HAVE TO TRIAL BY
JURY.
22. VALIDITY; SEVERABILITY. Every provision of this Agreement is intended
to be severable. The invalidity, illegality and unenforceability of any
particular provision of this Agreement in any jurisdiction shall not affect the
other provisions hereof, and this Agreement shall be construed in all respects
as if such invalid, illegal or unenforceable provision were omitted and the
remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the invalid, illegal or unenforceable
provisions.
23. ENTIRETY. This Agreement, together with the Operating Agreement and
the Option Agreement and any schedules and exhibits hereof and thereof,
represent the entire agreement of the parties hereto, and supersede all prior
and contemporaneous oral, and all prior written, agreements and understandings,
if any, including any commitment letters or correspondence relating to the
subject matter hereof or thereof or the transactions contemplated herein.
24. AMENDMENTS, WAIVERS AND CONSENTS. Neither this Agreement nor any of
the terms hereof may be amended, changed, waived, discharged or terminated, nor
shall any consent or approval of RECP be granted hereunder, unless such
amendment, change, waiver, discharge, termination, consent or approval is in
writing signed by RECP. No waiver of any provision hereof by any party hereto
shall be deemed a waiver by any other party nor shall any such waiver by any
party be deemed a continuing waiver of any matter by such party.
25. FURTHER ASSURANCES. The Company and the ▇▇▇▇▇▇▇ Members agree to
execute, acknowledge, deliver, file and record such further certificates,
amendments, instruments and documents, and to do all such other acts and
things, as may be required by law or as, in the reasonable judgment of RECP,
may be necessary or advisable to carry out the intent and purpose of this
Agreement.
26. TIME IS OF THE ESSENCE. Time is of the essence with respect to any of
the matters set forth in this Agreement.
27. NOTICES. All notices or other written communications hereunder shall
be made in accordance with Section 14.2 of the Operating Agreement.
[END OF TEXT]
22
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the day first written above.
▇▇▇▇▇▇▇ PARTNERS-HOPE PLACE, LTD.,
a California limited partnership
By: ▇▇▇▇▇▇▇ PARTNERS BGHS, LLC
a California limited liability company,
its Managing Member
By: ▇▇▇▇▇▇▇ PARTNERS SCS, INC.
a California corporation,
its Manager
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
-------------------------
Name: _______________________
Title: ______________________
▇▇▇▇▇▇▇ PARTNERS BGHS, LLC,
a California limited liability company
By: ▇▇▇▇▇▇▇ PARTNERS SCS, INC.
a California corporation,
its Manager
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
-------------------------
Name: _______________________
Title: ______________________
BUNKER HILL EQUITY, LLC,
a Delaware limited liability company
By: ▇▇▇▇▇▇▇ PARTNERS BGHS, LLC
a California limited liability company
By: ▇▇▇▇▇▇▇ PARTNERS SCS, INC.
a California corporation,
its Manager
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
-------------------------
Name: _______________________
Title: ______________________
23
RECP:
RECP LIBRARY LLC,
a Delaware limited liability company
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Treasurer
24
[EXECUTION COPY]
ENVIRONMENTAL INDEMNITY AGREEMENT
This ENVIRONMENTAL INDEMNITY AGREEMENT is made as of the 27th day of March, 2002
(the "Agreement"), among BUNKER HILL EQUITY, LLC, a Delaware limited liability
company, having its principal place of business c/o Maguire Partners, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Company"), ▇▇▇▇▇▇▇
Partners-Hope Place, Ltd., a California limited partnership having an address
c/o Maguire Partners, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ("MP"), ▇▇▇▇▇▇▇ Partners, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("BGHS" and together with MP, the "▇▇▇▇▇▇▇ Members"), ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ III, a resident of the State of California, having an address c/o
Maguire Partners, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ("▇▇▇▇▇▇▇" and collectively with the ▇▇▇▇▇▇▇ Members and the Company, the
"Indemnitors" and each an "Indemnitor") in favor of RECP Library LLC, a Delaware
limited liability company, having an address c/o DLJ Real Estate Capital
Partners, Inc., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(together with its successors, assigns and transferees, the "Indemnitee") and
other Indemnified Parties (as defined below).
W I T N E S S E T H :
WHEREAS, Indemnitee has entered into a limited liability company
agreement, dated as of the date hereof (the "Operating Agreement") of Bunker
Hill Equity, LLC, a Delaware limited liability company ("Company") with the
▇▇▇▇▇▇▇ Members and the Special Member (as defined therein);
WHEREAS, Indemnitee will be issued limited liability company interests
(the "Managing Member Interests") in the Company pursuant to, and subject to
the terms and conditions of, the Operating Agreement and the Contribution
Agreement between the Company, the ▇▇▇▇▇▇▇ Members and Indemnitee, dated as of
the date hereof (the "Contribution Agreement") in return for a $60,000,000
cash contribution (such contribution, together with any subsequent Capital
Contributions, the "Contribution");
WHEREAS, ▇▇▇▇▇▇▇ owns, directly or indirectly, an interest in the Company,
and the Company, through its direct and indirect subsidiaries (collectively and
together with the Company, the "Companies"), owns the Property (as defined in
the Operating Agreement);
WHEREAS, the obligation of Indemnitee to make the Contribution pursuant to
the Contribution Agreement is conditioned, among other things, on the execution
and delivery by the Indemnitors of this Agreement;
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, each Indemnitor hereby represents, warrants, covenants and agrees
for the benefit of the Indemnified Parties as follows:
1. Environmental Representations and Warranties. Except as otherwise
disclosed on Schedule 1 attached hereto and made part hereof with respect to the
Property, (a) there are no Hazardous Substances (defined below) or underground
storage tanks in, on, or under the Property, except those that are (i) in
compliance with all Environmental Laws (defined below) and with permits issued
pursuant thereto or (ii) fully disclosed to Indemnitee in writing in Schedule 1;
(b) there are no past, present or threatened Releases (defined below) of
Hazardous Substances in, on, under, or from the Property which either have not
been fully remediated in accordance with Environmental Law or which currently
violate applicable Environmental Law; (c) there is no threat of any Release of
Hazardous Substances migrating to the Property that is reasonably likely to
result in a requirement to remediate the Property; (d) there is no past or
present non-compliance with Environmental Laws, or with permits issued pursuant
thereto, in connection with the Property which remain outstanding or unresolved;
(e) Indemnitors have not received any written notice or other communication from
any Person (including but not limited to a Governmental Authority) relating to
Hazardous Substances or Remediation (defined below) thereof, of possible
liability of any Person pursuant to any Environmental Law in connection with the
Property, which could reasonably be expected to give rise to liability or any
actual or potential administrative or judicial proceedings in connection with
any of the foregoing; and (f) Indemnitors have provided to Indemnitee, in
writing, any and all material information relating to conditions in, on, under
or from the Property that is known to Indemnitor, including but not limited to
any reports relating to Hazardous Substances in, on, under or from the Property
and/or to the environmental condition of the Property.
2. Environmental Covenants. Each Indemnitor covenants and agrees that: (a)
all uses and operations on or of the Property, whether by any of the Indemnitors
or any other Person, shall be in compliance in all material respects with all
applicable Environmental Laws and permits issued pursuant thereto; (b) there
shall be no Releases of Hazardous Substances in, on, under or from the Property
except for Releases that are in compliance with applicable Environmental Laws or
a permit issued pursuant to applicable Environmental Laws; (c) there shall be no
Hazardous Substances in, on, or under the Property, except those that are (I)
stored and maintained in compliance with all Environmental Laws and with permits
issued pursuant thereto and (II) are required for the operation and maintenance
of the Property; (d) Indemnitors shall keep the Property free and clear of all
liens and other encumbrances imposed pursuant to any Environmental Law, whether
due to any act or omission of Indemnitors or of any other Person (the
"Environmental Liens"); (e) each Indemnitor shall, at its sole cost and expense
(except as otherwise provided herein), fully and expeditiously cooperate in all
activities pursuant to Section 3 of this Agreement, including but not limited to
providing all relevant information and making knowledgeable persons available
for interviews; (f) each Indemnitor shall, at its sole cost and expense (except
as otherwise provided herein), perform any environmental site assessment or
other investigation of environmental conditions in connection with the Property,
pursuant to any reasonable written request of Indemnitee (including but not
limited to sampling, testing and analysis of soil, water, air, building
materials, and other materials and substances whether solid, liquid or gas), and
share with Indemnitee a copy of each of the final reports and other results
thereof, and Indemnitee and the other Indemnified Parties shall be entitled to
rely on such reports and other results thereof; provided,
2
however, that Indemnitors shall not be required to perform any such
environmental site assessment or provide any such report more than two times
during the term Indemnitee holds any Managing Member Interest unless (I) a
Trigger Event has occurred and is continuing or (II) Indemnitee has reason to
believe that a Release in violation of applicable Environmental Law, or any
other material violation of applicable Environmental Law, has occurred and is
continuing; (g) each Indemnitor shall, at its sole cost and expense, comply with
all reasonable written requests of Indemnitee to (I) effectuate Remediation of
any condition (including but not limited to a Release of a Hazardous Substance)
in, on, under or from the Property required by applicable Environmental Laws;
(II) comply with any Environmental Law; and (III) comply with any lawful,
written directive from any Governmental Authority; (h) Indemnitors shall not do,
or knowingly permit any tenant of the Property to do, any act in violation of
Environmental Laws or which otherwise introduces Hazardous Substances on the
Property (except to the extent that the same is in the ordinary course of
business and in compliance with applicable Environmental Laws), or violates any
covenant, condition, agreement or easement applicable to the Property relating
to Environmental Laws or Hazardous Substances; and (i) each Indemnitor shall,
promptly after acquiring written knowledge of same, notify Indemnitee in writing
of (I) any presence of Hazardous Substances or Releases or threatened Releases
of Hazardous Substances in, on, under, or from the Property; (II) any
non-compliance with any Environmental Laws that reasonably could adversely
impact the Property; (III) any actual Environmental Lien imposed on the
Property; (IV) any required or proposed Remediation of environmental conditions
relating to the Property; and (V) any written notice from any source whatsoever
(including but not limited to a governmental entity) relating in any way to
Hazardous Substances adversely affecting the Property or Remediation thereof,
any alleged or actual Environmental Liabilities relating to the Companies or the
Property, the presence of Hazardous Substances or Remediation thereof, possible
liability of any Person, pursuant to any Environmental Law, or any actual or
potential administrative or judicial proceedings in connection with anything
referred to in this Agreement.
3. Indemnitee/Cooperation and Access. In the event that Indemnitee has
reason to believe that an environmental hazard exists on the Property that does
not, in the sole discretion of the Indemnitee, endanger any tenants or other
occupants of the Property or their guests or the general public or materially
and adversely affect the value of the Property, upon reasonable notice from the
Indemnitee, Indemnitors shall, at Indemnitors' expense, promptly cause a
qualified engineer or consultant to conduct any environmental assessment or
audit (the scope of which shall be determined in the sole discretion of
Indemnitee) and take any samples of soil, groundwater or other water, air, or
building materials or any other invasive testing requested by Indemnitee and
promptly deliver the results of any such assessment, audit, sampling or other
testing; provided, however, if such results are not delivered to Indemnitee
within a reasonable period or if Indemnitee has reason to believe that an
environmental hazard exists on the Property that, in the sole judgment of
Indemnitee, endangers any tenant or other occupant of the Property or their
guests or the general public or may materially and adversely affect the value of
the Property, upon reasonable prior written notice to the Indemnitors,
Indemnitee and any other Person designated by Indemnitee, including but not
limited to any receiver, any representative of a governmental entity, and any
environmental consultant, shall have the right, but not the
3
obligation, to enter upon the Property at all reasonable times to assess any
and all aspects of the environmental condition of the Property and its use,
including but not limited to conducting any environmental assessment or audit
(the scope of which shall be determined in the sole discretion of Indemnitee)
and taking samples of soil, groundwater or other water, air, or building
materials, and reasonably conducting other invasive testing. Indemnitors shall
cooperate in all reasonable respects with and provide Indemnitee and any such
Person designated by Indemnitee with access to the Property.
4. Indemnification. Each Indemnitor covenants and agrees, at its sole cost
and expense, to protect, defend, indemnify, release and hold Indemnified Parties
harmless from and against any and all Losses (defined below) imposed upon or
incurred by or asserted against any Indemnified Parties and directly or
indirectly arising out of or in any way relating to any one or more of the
following: (a) any presence of any Hazardous Substances in, on, above, or under
the Property; (b) any past, present or threatened Release of Hazardous
Substances in, on, above, under or from the Property; (c) any activity by any of
the Indemnitors, any Affiliate of any of the Indemnitors, and any tenant or
other user of the Property in connection with any actual, proposed or threatened
use, treatment, storage, holding, existence, disposition or other Release,
generation, production, manufacturing, processing, refining, control,
management, abatement, removal, handling, transfer or transportation to or from
the Property of any Hazardous Substances at any time located in, under, on or
above the Property; (d) any activity by any of the Indemnitors, any Affiliate of
any of the Indemnitors, and any tenant or other user of the Property in
connection with any actual or proposed Remediation of any Hazardous Substances
from the Property at any time located in, under, on or above the Property,
whether or not such Remediation is voluntary or pursuant to court or
administrative order, including but not limited to any removal, remedial or
corrective action; (e) any past, present, threatened or alleged non-compliance
or violations of any Environmental Laws (or permits issued pursuant to any
Environmental Law) in connection with the Property or operations thereon,
including but not limited to any failure by any of the Indemnitors, any
Affiliate of any Indemnitor, and any tenant or other user of the Property to
comply with any order of any Governmental Authority in connection with any
Environmental Laws; (f) the imposition, recording or filing or the threatened
imposition, recording or filing of any Environmental Lien encumbering the
Property; (g) any administrative processes or proceedings or judicial
proceedings in any way connected with any matter addressed in this Agreement;
(h) any acts of Property Owner, the other Companies, Indemnitors, any Affiliate
of Indemnitors, and any tenant or other user of the Property in arranging for
disposal or treatment, or arranging with a transporter for transport for
disposal or treatment, of Hazardous Substances from the Property at any
facility or incineration vessel containing such or similar hazardous materials;
(i) any acts of Property Owner, the other Companies, Indemnitors, any Affiliate
of Indemnitors, and any tenant or other user of the Property in accepting any
Hazardous Substances for transport to disposal or treatment facilities,
incineration vessels or sites from which there is a Release, or a threatened
Release of any Hazardous Substance which causes the incurrence of costs for
Remediation of the Property; (j) any personal injury, wrongful death, or
property or other damage at, to or regarding the Property and arising under any
statutory or common law or tort law theory arising from the violation of any
applicable Environmental Law, including but not limited to damages arising from
the violation of
4
any applicable Environmental Law assessed for private or public nuisance or for
the conducting of an abnormally dangerous activity on or near the Property; (k)
any misrepresentation or inaccuracy in any representation or warranty or
material breach or failure to perform any covenants or other obligations
pursuant to this Agreement, the Operating Agreement or any other Transaction
Document relating to environmental matters, except as specifically provided
below or in Section 9 hereof; (l) any and all matters or obligations arising
under the Environmental Indemnity Agreement, dated as of the date hereof, among
Bunker Hill Senior Mezzanine, LLC, ▇▇▇▇▇▇▇, DLJ Real Estate Capital Partners
II, L.P. and Column Financial, Inc. and any replacements thereof in connection
with any refinancing of the mezzanine debt related thereto; (m) any and all
matters or obligations arising under the Environmental Indemnity Agreement,
dated as of the date thereof, among Bunker Hill Junior Mezzanine, LLC, ▇▇▇▇▇▇▇,
DLJ Real Estate Capital Partners II, L.P. and Column Financial, Inc. and any
replacements thereof in connection with any refinancing of the mezzanine debt
related thereto, and (n) any actual, threatened or alleged Environmental
Liabilities.
All liabilities and obligations of Indemnitors under this Section 4 are
herein referred to collectively as the "Indemnified Obligations". Indemnitors
agree to pay to the Indemnified Parties and reimburse the Indemnified Parties
for, on demand and in immediately available funds (l) all fees, costs and
expenses (including, without limitation, all court costs and reasonable
attorneys' and paralegals' fees, costs and expenses) paid or incurred by any of
the Indemnified Parties in: (x) endeavoring to collect all or any part of the
Indemnified Obligations from, or in prosecuting any action against, any
Indemnitor; and (y) preserving, protecting or defending the enforceability of,
or enforcing, this Agreement or their rights hereunder against Indemnitors.
5. Duty to Defend and Attorneys and Other Fees and Expenses. Upon written
request by any Indemnified Party, Indemnitors shall defend any Legal Activities
constituting Indemnitees Obligation (if requested by any Indemnified Party, in
the name of the Indemnified Party) by attorneys and other professionals approved
by the Indemnified Parties which approval shall not be unreasonably withheld.
Notwithstanding the foregoing, the Indemnified Parties may, if the Indemnified
Parties determine in good faith that there is a conflict, engage their own
attorneys and other professionals to defend or assist them, at Indemnitor's
cost, and, at the option of the Indemnified Parties, their attorney shall
control the resolution of any claim or proceeding against the Indemnified
Parties, providing that no compromise or settlement shall be entered without
Indemnitors' consent, which consent shall not be unreasonably withheld.
Indemnitors shall not be liable for the fees of more than one attorney on behalf
of all Indemnified Parties. If Indemnitors have not undertaken to defend any
Indemnified Party as required pursuant to the terms of this Agreement within 15
days after notice, upon demand, Indemnitors shall pay or, in the sole and
absolute discretion of the Indemnified Parties, reimburse, the Indemnified
Parties for the payment of reasonable fees and disbursements of attorneys,
engineers, environmental consultants, laboratories and other professionals in
connection therewith. Indemnitors shall not, without the written consent of the
Indemnified Party, settle or compromise any claim or consent to the entry of
judgment which does not include as an unconditional term thereof the giving by
the claimant or the plaintiff to the Indemnified Party of an
5
unconditional release from all liability in respect of such claim (and will
contain no restriction on the Indemnified Party's operation of its business).
6. Definitions. Capitalized terms used herein and not specifically defined
herein shall have the respective meanings ascribed to such terms in the
Operating Agreement. As used in this Agreement, the following terms shall have
the following meanings:
(a) "Environmental Law" means any present and future federal, state
and local laws, statutes, codes, ordinances, rules, regulations and the common
law, relating to pollution or protection of human health or the environment,
regulating Hazardous Substances, relating to liability for or costs of other
actual or threatened danger to human health or the environment and includes but
is not limited to the following statutes, as amended, any successor thereto, and
any regulations promulgated pursuant thereto, and any state or local statutes,
ordinances, rules, regulations addressing similar issues: the Comprehensive
Environmental Response, Compensation and Liability Act; the Emergency Planning
and Community Right-to-Know Act; the Hazardous Substances Transportation Act;
the Resource Conservation and Recovery Act (including but not limited to
Subtitle I relating to underground storage tanks); the Solid Waste Disposal Act;
the Clean Water Act; the Clean Air Act; the Toxic Substances Control Act; the
Safe Drinking Water Act; the Occupational Safety and Health Act (to the extent
the same relates to Hazardous Substances); the Federal Water Pollution Control
Act; the Federal Insecticide, Fungicide and Rodenticide Act; the Endangered
Species Act; the National Environmental Policy Act; and the River and Harbors
Appropriation Act.
(b) "Environmental Law" also includes, but is not limited to, any
present and future federal, state and local laws, statutes, codes, ordinances,
rules, regulations, permits or authorizations and the common law that (a)
condition transfer of property upon a negative declaration or other approval of
a Governmental Authority of the environmental condition of the Property; (b)
require notification or disclosure of Releases of Hazardous Substances or other
environmental condition of the Property to any Governmental Authority or other
Person, whether or not in connection with transfer of title to or interest in
property; (c) impose conditions or requirements in connection with permits or
other authorization for lawful activity relating to Hazardous Substances; or (d)
relate to wrongful death, personal injury or property or other damage relating
to Hazardous Substances.
(c) "Environmental Liabilities" means any claims, judgments, damages
(including punitive and consequential damages), losses, penalties, fines,
liabilities, obligations, liens, violations, costs and expenses (including
attorney's fees, consultants' fees and engineering fees) incurred directly or
indirectly as a result of or relating to (i) the existence of Hazardous
Substances in, on, under, at or emanating from the Property, (ii) any
non-compliance with, or violation of, or liability imposed by, any Environmental
Law, or (iii) the off-site transportation, treatment, storage or disposal of
Hazardous Substances or at or from the Property.
6
(d) "Hazardous Substances" means any and all substances (whether
solid, liquid or gas) defined, listed, or otherwise classified, or regulated as
pollutants, contaminants, hazardous wastes, hazardous substances, hazardous
materials, extremely hazardous wastes, or words of similar meaning or
regulatory effect under any present or future Environmental Laws or that may
have an adverse impact on human health or the environment, including but not
limited to petroleum and petroleum products, asbestos and asbestos-containing
materials, polychlorinated biphenyls, lead, radon, radioactive materials,
flammables and explosives, but excluding substances of kinds and in amounts
ordinarily and customarily used or stored in office buildings for the purposes
of cleaning or other maintenance or operations and which otherwise are
maintained, stored, used, and discarded in compliance with all applicable
Environmental Laws.
(e) "Indemnified Parties" (or individually an "Indemnified Party")
means Indemnitee and any person or entity who is or will have been involved in
the Contribution, persons and entities who may hold or acquire or will have
held a full or partial interest in the Managing Member Interests, as well as
custodians, trustees and other fiduciaries who hold or have held a full or
partial interest in the Managing Member Interests for the benefit of third
parties as well as the respective directors, officers, shareholders, members,
partners, employees, agents, servants representatives, contractors,
subcontractors, affiliates, subsidiaries, participants, successors and assigns
of any and all of the foregoing (including, but not limited to any other person
or entity who holds or acquires or will have held a participation or other full
or partial interest in the Managing Member Interest) including, but not limited
to any successors by merger, consolidation or acquisition of all or a
substantial portion of Indemnitee's assets and business.
(f) "Legal Action" means any claim, suit or proceeding, whether
administrative or judicial in nature.
(g) "Losses" means any losses, damages, costs, fees, expenses,
claims, suits, judgments, awards, liabilities (including but not limited to
strict liabilities), obligations, debts, diminutions in value incurred by
Indemnified Parties, fines, penalties, charges, costs of Remediation (whether
or not performed voluntarily), amounts paid in settlement (provided the same
was approved by Indemnitors if such approval is required hereunder), litigation
costs, reasonable attorneys' fees, engineers' fees, environmental consultants'
fees, and investigation costs (including but not limited to costs for sampling,
testing and analysis of soil, water, air, building materials, and other
materials and substances whether solid, liquid or gas performed in accordance
with the terms hereof), of whatever kind or nature, and whether or not incurred
in connection with any judicial or administrative proceedings, actions, claims,
suits, judgements or awards.
(h) "Release" means any release, deposit, discharge, emission,
leaking, leaching, spilling, seeping, migrating, injecting, pumping, pouring,
emptying, escaping, dumping, disposing or other movement of regulated Hazardous
Substances into the environment.
7
(i) "Remediation" means any response, remediation, removal, or
corrective action, any activity, any activity to clean up, detoxify,
decontaminate, contain or otherwise remediate any Hazardous Substance, any
actions to prevent, cure or mitigate any Release of any Hazardous Substance, any
action to comply with any Environmental Laws or with any permits issued pursuant
thereto, any inspection, investigation, study, monitoring, assessment, audit,
sampling and testing, laboratory or other analysis, or evaluation relating to
any Hazardous Substances or to any other requirement imposed under applicable
Environmental Laws.
7. Unimpaired Liability. The liability of each Indemnitor under this
Agreement shall in no way be limited or impaired by, and each Indemnitor hereby
consents to and agrees to be bound by, any amendment or modification of the
provisions of the Operating Agreement or any other Transaction Document by the
parties thereto. In addition, the liability of each Indemnitor under this
Agreement shall in no way be limited or impaired by (i) any extensions of time
for performance required by the Operating Agreement or any other Transaction
Document, (ii) any sale or transfer of all or part of the Property except as set
forth in Section 9 hereof, (iii) any exculpatory provision in any Transaction
Document limiting Indemnitee's recourse to the Property or for payments due
thereof, or limiting Indemnitee's rights in any manner, (iv) the accuracy or
inaccuracy of the representations and warranties made by each Indemnitor or the
Company under the Operating Agreement or any other Transaction Document or
herein, (v) the release of each Indemnitor or Company or any other Person from
Performance or observance of any of the agreements, covenants, terms or
condition contained in any Transaction Document by operation of law,
Indemnitee's voluntary act, or otherwise; and, in any such case, whether with or
without notice to Indemnitor and with or without consideration.
8. Enforcement. Indemnified Parties may enforce the obligations of
Indemnitors without first resorting to or exhausting any security or reserves or
any amounts deposited in escrow under any of the Transaction Documents,
provided, however, that nothing herein shall inhibit or prevent Indemnitee from
enforcing its rights and remedies under any other Transaction Document. Except
as otherwise provided herein, it is not necessary for a Trigger Event to have
occurred for Indemnified Parties to exercise their rights pursuant to this
Agreement. Notwithstanding any provision of the Transaction Documents, the
obligations pursuant to this Agreement are exceptions to any non-recourse or
exculpation provision in any Transaction Document; except as otherwise provided
herein, Indemnitors are fully and personally liable for their obligations, and
such liability is not limited to the Managing Member Return or the value of the
Property.
9. Survival. Except as otherwise provided in this Agreement, the
obligations and liabilities of Indemnitors under this Agreement shall fully
survive the transfer or indefeasible redemption or purchase the Managing Member
Interest. Notwithstanding the provisions of this Agreement to the contrary, the
liabilities and obligations of Indemnitor under this Agreement shall not apply
if such liabilities and obligations arose directly as the result of any gross
negligence or willful misconduct of the Indemnified Parties.
8
10. Interest. Any amounts payable to any Indemnified Parties under this
Agreement shall become immediately due and payable on demand and, if not paid
within thirty (30) days of such demand therefor, shall bear interest at a rate
per annum of 25% (compounded monthly) (the "Interest Rate"), provided, however,
that if the Interest Rate exceeds the maximum interest rate permitted under
applicable law, then the Interest Rate shall be the maximum interest rate
permitted under applicable law.
11. Waivers. Indemnitors hereby waive and relinquish, to the fullest
extent permitted by law, (i) any right or claim of right to cause a marshaling
of Indemnitors' assets (ii) all rights and remedies accorded by applicable law
to indemnitors or guarantors, except any rights of subrogation which
Indemnitors may have, provided that the indemnity provided for hereunder shall
neither be contingent upon the existence of any such rights of subrogation nor
subject to any claims or defenses whatsoever which may be asserted in
connection with the enforcement or attempted enforcement of such subrogation
rights including, without limitation, any claim that such subrogation rights
were abrogated by any acts of Indemnitee or other Indemnified Parties; (iii)
the right to assert a counterclaim, other than a mandatory or compulsory
counterclaim, in any action or proceeding brought against or by Indemnitee or
other Indemnified Parties; (iv) notice of acceptance hereof and of any action
taken or omitted in reliance hereon; (v) presentment for payment, demand of
payment, protest or notice of nonpayment or failure to perform or observe, or
other proof, or notice or demand; and (vi) all homestead exemption rights
against the obligations hereunder and the benefits of any statutes of
limitations or repose. Notwithstanding anything to the contrary contained
herein, each Indemnitor hereby agrees to postpone the exercise of any rights of
subrogation against the Company in respect of its obligations under this
Agreement until the earlier of (a) indefeasible redemption of the Managing
Member Interests pursuant to the terms of the Operating Agreement or (b) the
indefeasible purchase of the Managing Member Interests pursuant to the Option
Agreement.
12. Subrogation. Indemnitor shall take any and all reasonable actions,
including institution of Legal Action against third parties, necessary or
appropriate to obtain reimbursement, payment or compensation from such persons
responsible for the presence of any Hazardous Substances at, in, on, under or
near the Property or otherwise obligated by law to bear the cost. Indemnified
Parties shall be and hereby are subrogated to all of Indemnitors' rights now or
hereafter in such claims.
13. Indemnitor's Representations and Warranties. Each Indemnitor
represents and warrants, jointly and severally with each other Indemnitor,
that:
(a) This Indemnity Agreement constitutes the valid and legally
binding obligation of the Indemnitor, enforceable in accordance with its terms
and conditions except insofar as such enforceability may be affected by
bankruptcy, insolvency or similar laws affecting creditors' rights generally
and the availability of any particular equitable remedy. The Indemnitor need
not give any notice to, make any filing with, or obtain any authorization,
consent, or approval of any Person in order to perform its obligations under
this Indemnity Agreement;
9
(b) Neither the execution and the delivery of this Indemnity
Agreement, nor the performance of the Indemnitor's obligations hereunder will
(i) violate any statute, regulation, rule, injunction, judgment, order, decree,
charge, or other restriction of any government, governmental agency, or court to
which such Indemnitor is subject, (ii) to the extent the Indemnitor is an
entity, violate the Organizational Documents of such entity, or (iii) conflict
with, result in a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate, terminate, modify
or cancel, or require any notice or consent which has not been given or
obtained, under any agreement, contract, lease, license, instrument, or other
arrangement to which the Indemnitor is a party or by which he is bound or to
which any of his assets are subject;
(c) There is no action, suit, proceeding, hearing, or investigation
of, in, or before any court or quasi-judicial or administrative agency of any
federal, state, local, or foreign jurisdiction or before any arbitrator
involving the Indemnitor in respect of this Indemnity Agreement, and, to
Indemnitor's Knowledge, no such matters are threatened;
(d) Indemnitor does not believe, nor does it have any reason or
cause to believe, that it cannot perform each and every covenant contained in
this Indemnity Agreement;
(e) There are no actions, voluntary or involuntary, pending against
the Indemnitor under any bankruptcy, reorganization, arrangement, insolvency or
similar United States federal or state statutes.
14. No Waiver. No delay by any Indemnified Party in exercising any right,
power or privilege under this Agreement shall operate as a waiver of any such
privilege, power or right.
15. Notice of Legal Actions. Each party hereto shall, within ten (10)
business days of receipt thereof, give written notice to the other party hereto
of (i) any notice, advice or other communication from any Governmental
Authority or any source whatsoever with respect to Hazardous Substances on,
from or affecting the Property, and (ii) any Legal Action brought against such
party or related to the Property, with respect to which Indemnitor may have
liability under this Agreement. Such notice shall comply with the provisions of
Section 19 hereof.
16. Examination of Books and Records. Indemnitee and its accountants
shall have the right to examine the records, books, management and other papers
of each Indemnitor which reflect upon its financial condition, at the Property
or at the office regularly maintained by each Indemnitor where the books and
records are located. Indemnitee and its accountants shall have the right to
make copies and extracts from the foregoing records and other papers.
17. Transfer of Managing Member Interests. Indemnitee may, at any time,
sell, transfer or assign the Managing Member Interests, its rights under the
Operating Agreement and any other Transaction Document, and any or all servicing
10
rights with respect thereto, or grant participations therein or pledge its
interest therein. Indemnitee may forward to each acquiror and each prospective
acquiror of a Membership Interest, all documents and information which
Indemnitee now has or may hereafter acquire relating to Indemnitors and the
Property, whether furnished by Indemnitor, any guarantor or otherwise, as
Indemnitee determines necessary or desirable. Indemnitor and any guarantor agree
to cooperate with Indemnitee in connection with any transfer made pursuant to
this Section, including, without limitation, the delivery of an estoppel
certificate and such other documents as may be reasonably requested by
Indemnitee. Indemnitors shall also furnish, and Indemnitor and any guarantor
hereby consent to Indemnitee furnishing to each acquiror and each prospective
acquiror, any and all information concerning the financial condition of the
Indemnitor and any guarantor and any and all information concerning the Property
and the Leases as may be requested by Indemnitee, any acquiror or prospective
acquiror in connection with any sale or transfer thereof.
18. Taxes. Each Indemnitor has filed all federal, state, county,
municipal, and city income and other tax returns required to have been filed by
it and has paid all taxes and related liabilities which have become due pursuant
to such returns or pursuant to any assessments received by it. Indemnitors have
no knowledge of any basis for any additional assessment in respect of any such
taxes and related liabilities for prior years.
19. Notices. All notices or other written communications hereunder shall
be made in accordance with Section 14.2 of the Operating Agreement.
20. Duplicate Originals; Counterparts. This Agreement may be executed in
any number of duplicate originals and each duplicate original shall be deemed to
be original. This Agreement may be executed in several counterparts, each of
which counterparts shall be deemed an original instrument and all of which
together shall constitute a single Agreement. The failure of any party hereto to
execute this Agreement, or any counterpart hereof, shall not relieve the other
signatories from their obligations hereunder.
21. No Oral Change. This Agreement, and any provisions hereof, may not be
modified, amended, waived, extended, changed, discharged or terminated orally or
by any act or failure to act on the part of any Indemnitor or any Indemnified
Party, but only by an agreement in writing signed by the party against whom
enforcement of any modification, amendment, waiver, extension, change, discharge
or termination is sought.
22. Headings, Etc. The headings and captions of various sections of this
Agreement are for convenience of reference only and are not to be construed as
defining or limiting, in any way, the scope or intent of the provisions hereof.
23. Number and Gender/Successors and Assigns/Joint and Several. All
pronouns and any variations thereof shall be deemed to refer to the masculine,
feminine, neuter, singular or plural as the identity of the person or persons
referred to may require. Without limiting the effect of specific references in
any provision of this
11
Agreement, the term "Indemnitor" shall be deemed to refer to each Indemnitor
individually and all Indemnitors collectively, as the sense of a particular
provision may require, and to include the successors and assigns of Indemnitor,
all of whom shall be bound by the provisions of this Agreement, provided that
no obligation of Indemnitor may be assigned except with the written consent of
Indemnitee. Each reference herein to Indemnitee shall be deemed to include its
successors and assigns except as specifically provided in the definition or
Indemnified Parties. This Agreement shall inure to the benefit of Indemnified
Parties and their respective successors and assigns forever. Notwithstanding
anything to the contrary contained herein, the liability and obligations of the
Indemnitors under this Agreement shall be joint and several. If any Indemnitor
consists of more than one person or party, the obligations and liabilities of
each such person or party shall be joint and several.
24. Release of Liability. Any one or more parties liable upon or in
respect of this Agreement may be released without affecting the liability of any
party not so released.
25. Rights Cumulative. The rights and remedies herein provided are
cumulative and not exclusive of any rights and remedies which Indemnitee has
under the Operating Agreement, any other Transaction Document or would otherwise
have at law or in equity.
26. Inapplicable Provisions. If any term, condition or covenant of this
Agreement shall be held to be invalid, illegal or unenforceable in any respect,
this Agreement shall be construed without such provision.
27. Construction of Documents. The parties hereto acknowledge that they
were represented by separate and independent counsel in connection with the
review, negotiation and drafting of this Agreement and that this Agreement shall
not be subject to the principal of construing its meaning against the party that
drafted same.
28. Time is of the Essence. Time is of the essence with respect to any of
the matters set forth in this Agreement.
29. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to conflict of
law provisions thereof.
30. Miscellaneous. (a) Wherever pursuant to this Agreement (i) Indemnitee
exercises any right given it to approve or disapprove, (ii) any arrangement or
term is to be satisfactory to Indemnitee, or (iii) any other decision or
determination is to be made by Indemnitee, the decision of Indemnitee to approve
or disapprove, all decisions that arrangements or terms are satisfactory or not
satisfactory and all other decisions and determinations made my Indemnitee,
shall be in the sole and absolute discretion of Indemnitee and shall be final
and conclusive, except as may be otherwise expressly and specifically provided
herein.
12
(b) Wherever pursuant to this Agreement it is provided that
Indemnitors pay any costs and expenses, such costs and expenses shall include,
but not be limited to, reasonable, out-of-pocket legal fees and disbursements
of Indemnitee.
31. No Third Party Beneficiaries. Except as expressly stated herein, this
Agreement is not intended and shall not be construed as granting any rights,
benefits or privileges to any Person not a party to this Agreement other than
assignees, transferees or successors-in-Interests of the Managing Member
Interests. Any allocation of responsibility between the parties hereunder shall
not affect the rights Indemnitors or Indemnitee have against third parties.
32. SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.
(a) EACH INDEMNITOR, TO THE FULLEST EXTENT PERMITTED BY LAW, HEREBY
KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT
COUNSEL, (I) SUBMITS TO PERSONAL JURISDICTION IN THE STATE OF NEW YORK OVER ANY
SUIT, ACTION OR PROCEEDING BY ANY PERSON ARISING FROM OR RELATING TO THIS
AGREEMENT, (II) AGREES THAT ANY SUCH ACTION, SUIT OR PROCEEDING MAY BE BROUGHT
IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION SITTING IN NEW YORK
COUNTY, NEW YORK, (III) SUBMITS TO THE JURISDICTION OF SUCH COURTS, AND, (IV)
TO THE FULLEST EXTENT PERMITTED BY LAW, AGREES THAT NONE OF THEM WILL BRING ANY
ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM. INDEMNITORS AND INDEMNITEE
FURTHER CONSENT AND AGREE TO SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER LEGAL
PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING BY REGISTERED OR CERTIFIED U.S.
MAIL, POSTAGE PREPAID, TO INDEMNITORS OR INDEMNITEE, WITH COPIES TO THE
REQUIRED PARTIES, AT THE ADDRESS FOR NOTICES DESCRIBED IN SECTION 19 HEREOF,
AND CONSENT AND AGREE THAT SUCH SERVICE SHALL CONSTITUTE IN EVERY RESPECT VALID
AND EFFECTIVE SERVICE (BUT NOTHING HEREIN SHALL AFFECT THE VALIDITY OR
EFFECTIVENESS OF PROCESS SERVED IN ANY OTHER MANNER PERMITTED BY LAW).
(b) INDEMNITORS AND INDEMNITEE, TO THE FULL EXTENT PERMITTED BY LAW,
HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF
COMPETENT COUNSEL, WAIVE RELINQUISH AND FOREVER FOREGO THE RIGHT TO A TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BASED UPON, ARISING OUT OF, OR
IN ANY WAY RELATING TO THIS AGREEMENT OR ANY ACTS OR OMISSIONS OF ANY
INDEMNIFIED PARTIES IN CONNECTION THEREWITH OR ANY CONDUCT, ACT OR OMISSION OF
INDEMNITEE OR INDEMNITORS OR ANY OF THEIR DIRECTORS, OFFICERS, PARTNERS,
MEMBERS, EMPLOYEES, AGENTS OR ATTORNEYS, OR ANY OTHER PERSONS AFFILIATED WITH
INDEMNITEE OR INDEMNITORS, IN EACH OF THE FOREGOING CASES RELATED THERETO,
WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.
[NO FURTHER TEXT ON THIS PAGE]
13
IN WITNESS WHEREOF, this Agreement has been executed by Indemnitors and is
effective as of the day and year first written above.
INDEMNITORS:
▇▇▇▇▇▇▇ PARTNERS-HOPE PLACE, LTD.,
a California limited partnership
By: ▇▇▇▇▇▇▇ PARTNERS BGHS, LLC
A California limited liability company,
Its Managing Member
By: ▇▇▇▇▇▇▇ PARTNERS SCS, INC.
a California corporation,
its Manager
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
----------------------------
Name:
----------------------------
Title:
----------------------------
▇▇▇▇▇▇▇ PARTNERS BGHS, LLC,
A California limited liability company
By: ▇▇▇▇▇▇▇ PARTNERS SCS, INC.
A California corporation,
Its Manager
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
----------------------------
Name:
----------------------------
Title:
----------------------------
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
14
BUNKER HILL EQUITY, LLC,
a Delaware limited liability company
By: ▇▇▇▇▇▇▇ PARTNERS BGHS, LLC
a Member
By: ▇▇▇▇▇▇▇ PARTNERS SCS, INC.
its Manager
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
----------------------------
Name:
Title:
15
INDEMNITEE:
RECP LIBRARY LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Treasurer
16
[EXECUTION COPY]
INDEMNITY AGREEMENT
This INDEMNITY AGREEMENT ("Indemnity Agreement") is made as of the 27th day
of March, 2002, by ▇▇▇▇▇▇▇ Partners-Hope Place, Ltd., a California limited
partnership having an address c/o Maguire Partners BGHS, LLC a California
limited liability company having an address c/o Maguire Partners, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("BGHS" and together with MP,
the "▇▇▇▇▇▇▇ Members") and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III, a resident of the State of
California with an address c/o Maguire Partners, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇▇▇" and together with the ▇▇▇▇▇▇▇
Members, the "Indemnitors" and each an "Indemnitor") in favor of RECP Library
LLC, a Delaware limited liability company, having an address c/o DLJ Real Estate
Capital Partners, Inc., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
(with its successors, transferees and assigns the "RECP").
W I T N E S S E T H:
WHEREAS, RECP has entered into a limited liability company agreement, dated
as of the date hereof (the "Operating Agreement") of Bunker Hill Equity, LLC, a
Delaware limited liability company ("Company") with the ▇▇▇▇▇▇▇ Members and the
Special Member (as defined therein);
WHEREAS, RECP will be issued limited liability company interests (the
"Managing Member Interests") in the Company pursuant to, and subject to the
terms and conditions of, the Operating Agreement and the Contribution Agreement
between the Company, the ▇▇▇▇▇▇▇ Members and RECP, dated as of the date hereof
(the "Contribution Agreement") in return for a $60,000,000 cash contribution
(such contribution, together with any subsequent Capital Contributions, the
"Contribution");
WHEREAS, ▇▇▇▇▇▇▇ owns, directly or indirectly, an interest in the Company,
and the Company, through its direct and indirect subsidiaries (collectively and
together with the Company, the "Companies"), owns the Property (as defined in
the Operating Agreement);
WHEREAS, the obligation of RECP to make the Contribution pursuant to the
Contribution Agreement is conditioned, among other things, on the execution and
delivery by the Indemnitors of this Agreement;
WHEREAS, Indemnitors are willing to execute and deliver this Indemnity
Agreement, pursuant to which Indemnitors shall be liable for the Indemnified
Obligations (defined below) to the extent provided herein in order to satisfy
such condition precedent.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each Indemnitor hereby covenants
and agrees as follows:
1. Defined Terms. Unless the context otherwise requires, capitalized
terms used but not otherwise defined herein shall have the meaning ascribed
therefor in the Operating Agreement.
(a) "Expenses" has the meaning set forth in Section 3(b) hereof.
(b) "Indemnified Persons" (each individually an "Indemnified Person")
means RECP, its directors, officers, members, shareholders, controlling Persons,
Affiliates, agents, representatives, employees, transferees, successors and
permitted assigns.
(c) "Indemnified Obligations" has the meaning set forth in Section
3(b) hereof.
(d) "Interest Rate" has the meaning set forth in Section 3(b) hereof.
(e) "Losses" means collectively all liabilities, obligations, losses,
damages (including foreseeable and unforeseeable consequential and punitive
damages and any damages for the diminution in value of the Managing Member
Interests), debts, claims, costs and expenses (including all reasonable
attorneys' and paralegals' fees and related costs and expenses), fines,
penalties and sanctions, whether direct or indirect, known or unknown, accrued,
absolute or contingent, liquidated or unliquidated, in each case, suffered by
the Indemnified Persons.
(f) "Option Agreement" means that certain agreement, dated as of the
date hereof, among ▇▇▇▇▇▇▇, the ▇▇▇▇▇▇▇ Members and RECP, whereby RECP may
compel ▇▇▇▇▇▇▇ to purchase the Managing Member Interests upon the occurrence of
certain events provided for therein and either of the ▇▇▇▇▇▇▇ Members may
require redemption by the Company or may purchase the Managing Member Interests.
2. Term. This Indemnity Agreement shall continue in full force and effect
until the earlier of: (x) the indefeasible redemption of the Managing Member
Interests pursuant to the terms of the Operating Agreement or (y) the
indefeasible purchase of the Managing Member Interests pursuant to the Option
Agreement.
3. Indemnity.
(a) Indemnitors unconditionally agree to indemnify and hold harmless
the Indemnified Persons from and against all Losses imposed upon, suffered or
incurred by or asserted against the Indemnified Persons as a result of, or
in connection with any of the following actions committed or caused by
Indemnitors, the Companies (to the extent such actions were caused by the
▇▇▇▇▇▇▇ Members or any of their respective Affiliates) or any Person controlled
directly or indirectly by either Indemnitor: (a) any fraud or intentional and
material misrepresentation in connection with the issuance of the Managing
Member Interests; (b) any misappropriation of funds in breach of the Operating
Agreement or any other Transaction Document (including proceeds paid under any
insurance policies or condemnation proceedings, rents and security deposits);
(c) any willful breach of Section 6.9 or 11.1 of the Operating
2
Agreement; (d) any gross negligence or criminal acts resulting in forfeiture,
seizure or loss of all or any portion of the Property or any direct or indirect
interest therein, including, without limitation, an interest in any of the
Companies; (e) directly or indirectly, challenging, hindering, obstructing or
delaying or causing any of the Companies to challenge, hinder, obstruct or
delay the right of RECP, (I) upon the occurrence of a Trigger Event or during a
Suspension Period, to sell or refinance the Property or recapitalize any of the
Companies; or (II) upon the occurrence of a Trigger Event, to assume unfettered
control of the Company including, without limitation, revoking any powers or
duties delegated or granted to ▇▇▇▇▇▇▇, either of the ▇▇▇▇▇▇▇ Members or any of
their Affiliates under the Operating Agreement or any other Transaction
Document; (f) gross physical waste of the Property, (g) any act or omission
that causes the non-recourse obligations under any Loan Documents to become a
recourse obligation of any of the Companies, RECP or any Affiliate of RECP and
solely with respect to any obligation becoming recourse to any of the
Companies, if ▇▇▇▇▇▇▇ or his Affiliates fail to pay or satisfy such recourse
obligation in full on behalf of the Companies within any cure or grace period
permitted under the applicable Loan Document; (h) any recourse obligation
(including, without limitation, guarantees) of the ▇▇▇▇▇▇▇ Members or any of
their Affiliates, under the Loan Documents is assumed or performed by RECP
pursuant to Sections 2.8(g) or 8.3 of each of the Junior Mezzanine Loan
Agreement or the Senior Mezzanine Loan Agreement; and (i) any misrepresentation
of the representations included in Section 5(zz) of the Contribution Agreement.
(b) All liabilities and obligations of the Indemnitors under this
Section 3 are herein referred to collectively as the "Indemnified Obligations".
Indemnitors shall pay to the Indemnified Persons, on demand and in immediately
available funds, the full amount of the Indemnified Obligations. Indemnitors
further agree to pay to the Indemnified Persons and reimburse the Indemnified
Persons for, on demand and in immediately available funds (i) all fees, costs
and expenses (including, without limitation, all court costs and reasonable
attorneys' and paralegals' fees, costs and expenses) paid or incurred by any of
the Indemnified Persons in: (x) endeavoring to collect all or any part of the
Indemnified Obligations from, or in prosecuting any action against, Indemnitors;
and (y) preserving, protecting or defending the enforceability of, or enforcing,
this Indemnity Agreement or their rights hereunder against Indemnitors (all such
costs and expenses are hereinafter referred to as the "Expenses") and (ii)
interest on the Indemnified Obligations and the Expenses, from the date that is
3 days after the date on which RECP makes a specific demand for payment of
Losses under this Indemnity Agreement until paid in full, at the rate per annum
of 25% per annum, compounded monthly (the "Interest Rate"), provided, however,
that if the Interest Rate exceeds the maximum interest rate permitted under
applicable law, then the Interest Rate shall be the maximum interest rate
permitted under applicable law. Indemnitors hereby agree that this Indemnity
Agreement is an absolute agreement to pay and guaranty of payment and is not a
guaranty of collection.
(c) The obligations and liabilities under this Section 3 arising out
of claims of third parties (a "Third Party Claim"), shall be subject to the
following terms and conditions:
(i) The Indemnified Person shall give the Indemnitors written notice
of any Third Party Claim. Any such notice shall identify with reasonable
specificity the basis for the Third Party Claim, the facts giving rise to the
Third Party Claim, and the amount of the Third Party Claim (or, if such amount
is not yet known, a reasonable estimate of the amount of the Third Party Claim).
The Indemnified Person shall make available to the Indemnitors copies
3
of all relevant documents and records in its possession. Failure to give
notice shall not relieve the Indemnitors of their obligation to indemnify
except if and to the extent that the Indemnitors are actually materially
prejudiced by the delay in giving notice. The Indemnitors shall be entitled to
defend or prosecute the Third Party Claim at its expense and through counsel of
their own choosing, reasonably acceptable to the Indemnified Person, if the
Indemnitors give written notice to the Indemnified Person of its intention to
do so no later than the fifteenth day following receipt of such notice of the
Third Party Claim, provided, however, that the Indemnified Person shall have
the right (i) to participate through counsel of its own choosing at its own
expense; and (ii) to assume control of the defense and prosecution of the Third
Party Claim, at the Indemnitors' expense, if there is a conflict of interest
between the Indemnifying Person and the Indemnitors in connection with the
defense or prosecution of such Third Party Claim.
(ii) If the Indemnitors, within 15 days after notice of any Third
Party Claim, fail to assume the defense in accordance with Section 3(c)(i), the
Indemnified Person shall have the right, at the expense of the Indemnitors, to
undertake the prosecution, defense, compromise or settlement of the Third Party
Claim.
(iii) The Indemnitors shall not, without the written consent of the
Indemnified Person, settle or compromise any Third Party Claim or consent to
the entry of judgment which does not include as an unconditional term thereof
the giving by the claimant or the plaintiff to the Indemnified Person of an
unconditional release from all liability in respect of the Third Party Claim
(and will contain no restriction on the Indemnified Person's operation of its
business).
4. Obligations Unconditional. The Indemnitors hereby agree that their
obligations under this Indemnity Agreement shall be unconditional, irrespective
of:
(a) the validity, enforceability, avoidance, novation or
subordination of any of the Indemnified Obligations by or against the Company
or any other person or entity (other than Indemnitors);
(b) the absence of any attempt by, or on behalf of, the Indemnified
Persons to collect, or to take any other action to enforce, all or any part of
the Indemnified Obligations, whether by or against the Company, the Indemnitors
or any other person or entity;
(c) the election of any remedy by, or on behalf of, the Indemnified
Persons with respect to all or any part of the Indemnified Obligations;
(d) the waiver, consent, extension, forbearance or granting of any
indulgence by, or on behalf of, the Indemnified Persons with respect to any
provisions of the Operating Agreement;
(e) the election by, or on behalf of, the Indemnified Persons, in
any proceeding instituted under Chapter 11 of Title 11 of the United States
Code (11 U.S.C. 101 et seq.) (the "Bankruptcy Code"), of the application of
Section 1111(b)(2) of the Bankruptcy Code;
4
(f) the disallowance, under Section 502 of the Bankruptcy Code, of all
or any portion of the claims of the Indemnified Persons for repayment of all or
any part of the Indemnified Obligations or any Expenses; or
(g) any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of the Company.
5. Remedies. If the events provided for in Section 3(a) above should
occur (the "Occurrence") and if as a result of the Occurrence RECP is entitled
to exercise its right under the Option Agreement and does in fact exercise such
rights and in connection therewith receives payment under the Option Agreement
in respect of such Occurrence (the "Put Payment"), RECP shall not be entitled to
seek remedies under this Indemnity Agreement with respect to such Occurrence to
the extent of any Put Payment; provided, however that RECP shall be entitled to
seek under this Indemnity Agreement any amount in excess of the Put Payment with
respect to such Occurrence and any amount with respect to any other Occurrence.
6. Representations and Warranties. Each Indemnitor represents and
warrants to RECP as of the date hereof, as follows:
(a) This Indemnity Agreement constitutes the valid and legally binding
obligation of the Indemnitor, enforceable in accordance with its terms and
conditions except insofar as such enforceability may be affected by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and the
availability of any particular equitable remedy. The Indemnitor need not give
any notice to, make any filing with, or obtain any authorization, consent, or
approval of any Person in order to perform its obligations under this Indemnity
Agreement.
(b) Neither the execution and the delivery of this Indemnity
Agreement, nor the performance of the Indemnitors' obligations hereunder will
(i) violate any statute, regulation, rule, injunction, judgment, order, decrees,
charge, or other restriction of any government, governmental agency, or court to
which such Indemnitor is subject, (ii) to the extent the Indemnitor is an
entity, violate the Organizational Documents of such entity, or (iii) conflict
with, result in a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate, terminate, modify
or cancel, or require any notice or consent which has not been given or
obtained, under any agreement, contract, lease, license, instrument, or other
arrangement to which the Indemnitor is a party or by which he is bound or to
which any of his assets are subject.
(c) There is no action, suit, proceeding, hearing, or investigation
of, in, or before any court or quasi-judicial or administrative agency of any
federal, state, local, or foreign jurisdiction or before any arbitrator
involving the Indemnitor in respect of the transactions contemplated by this
Indemnity Agreement, and, to the Indemnitor's Knowledge, no such matters are
threatened.
(d) Indemnitor does not believe, nor does it have any reason or cause
to believe, that it cannot perform each and every covenant contained in this
Indemnity Agreement.
5
(e) There are no actions, voluntary or involuntary, pending against
the Indemnitor under any bankruptcy, reorganization, arrangement, insolvency or
similar United States federal or state statutes.
7. Separate Right of Action. A separate right of action hereunder shall
arise each time a party hereunder acquires knowledge of any matter which may
require indemnification pursuant to this Indemnity Agreement or of any violation
of any of the terms hereof (except to the extent that any Losses suffered by the
Indemnified Persons relating to such matter have been previously paid in full
(in cash) by the Indemnitors). Separate and successive actions may be brought
hereunder to enforce any of the provisions hereof at any time and from time to
time. No action hereunder shall preclude any subsequent action, (except to the
extent that any Losses for which indemnification is sought in such subsequent
action have been previously paid in full (in cash) by the Indemnitors) and each
party hereby waives and covenants not to assert any defense in the nature of
splitting of causes of action or merger of judgments.
8. Waivers. (a) The Indemnitors hereby waive diligence, presentment,
demand of payment, filing of claims with a court in the event of receivership or
bankruptcy of the Indemnitors, protest or notice with respect to the Indemnified
Obligations, all setoffs and counterclaims and all presentments, demands for
performance, notices of nonperformance, protests, notices of protest, notices of
dishonor and notices of acceptance of this Indemnity Agreement, the benefits of
all statutes of limitation, and all other demands whatsoever, and covenants that
this Indemnity Agreement will not be discharged, except by complete payment (in
cash) and performance of the Indemnified Obligations and any other obligations
contained herein.
(b) The Indemnified Persons are hereby authorized, without notice or
demand and without affecting the liability of the Indemnitors hereunder, from
time to time, (a) to accept partial payments on all or any part of the
Indemnified Obligations; and (b) to settle, release, exchange, enforce, waive,
compromise, collect or otherwise liquidate all or any part of the Indemnified
Obligations. Any of the foregoing may be done in any manner, without affecting
or impairing the obligations of the Indemnitors hereunder.
(c) The obligations, covenants, agreements, duties and liabilities of
Indemnitors under this Indemnity Agreement shall in no way be limited or
impaired by reason of the happening from time to time of any of the following,
whether with or without notice and with or without consideration: the
invalidity, illegality or unenforceability of all or any part of the Operating
Agreement or any other Transaction Document or any document or agreement
executed in connection therewith for any reason whatsoever, including, without
limitation, the fact that, (i) the act of creating the obligations under the
Operating Agreement or any other Transaction Document or any part thereof is
ultra ▇▇▇▇▇ or that any entity at the time was suffering from another legal
disability, (ii) the officers or representatives executing the Operating
Agreement or any other Transaction Document acted in excess of their authority,
(iii) any of the Operating Agreement or any other Transaction Document violates
applicable usury laws, (iv) the creation, performance or repayment of any
obligation under the Operating Agreement or any other Transaction Document (or
the execution, delivery and performance of any document or instrument
representing part of such obligations or executed in connection with the
Operating Agreement or any other Transaction Document, or given to secure the
repayment or performance of any of such obligations) is illegal, uncollectible
or unenforceable against the Company, or (v) the Operating Agreement or any
other Transaction Document has
6
been forged or otherwise is irregular or not genuine or authentic; it being
agreed that Indemnitors shall remain liable hereon regardless of whether any
other entity or any other person be found not liable on any obligation (or any
part thereof) under the Operating Agreement or any other Transaction Document
for any reason.
9. Set-off. At any time after all or any part of the Indemnified
Obligations have become due and payable, the Indemnified Persons may, without
notice to the Indemnitors and regardless of the acceptance of any security or
collateral for the payment hereof, appropriate and apply toward the payment of
all or any part of the Indemnified Obligations (i) any indebtedness due or to
become due from such Indemnified Persons to the Indemnitors, and (ii) any
moneys, credits or other property belonging to the Indemnitors, at any time held
by or coming into the possession of such Indemnified Person.
10. Financial Information. Each Indemnitor hereby assumes responsibility
for keeping itself informed of the financial condition of the Company and any
and all endorsers and/or other indemnitors or guarantors of all or any part of
the Indemnified Obligations, and of all other circumstances bearing upon the
risk of nonpayment of the Indemnified Obligations (or any part thereof) that
diligent inquiry would reveal, and each Indemnitor hereby agrees that the
Indemnified Persons shall have no duty to advise the Indemnitors of information
known to it regarding such condition or any such circumstances.
11. No Marshaling; Reinstatement. Each Indemnitor consents and agrees that
neither the Indemnified Persons nor any person or entity acting for or on behalf
of the Indemnified Persons shall be under any obligation to ▇▇▇▇▇▇▇▇ any assets
in favor of the Indemnitors or against or in payment of any or all of the
Indemnified Obligations. Each Indemnitor further agrees that, to the extent that
the Indemnitors or any other indemnitor or guarantor of all or any part of the
Indemnified Obligations makes a payment or payments to the Indemnified Persons
which payment or payments or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside and/or required to be
repaid to the Company, the Indemnitors, or such indemnitor or guarantor or any
other person or entity, under any bankruptcy law, state or federal law, common
law or equitable cause, then, to the extent of such payment or repayment, the
part of the Indemnified Obligations which has been paid, reduced or satisfied by
such amount shall be reinstated and continued in full force and effect as of the
time immediately preceding such initial payment, reduction or satisfaction.
12. Subrogation. The Indemnitors shall have no right of subrogation with
respect to the Indemnified Obligations and waive any right to enforce any remedy
which the Indemnitors now have or may hereafter have against any of the
Companies, any endorser or any indemnitor or guarantor of all or any part of the
Indemnified Obligations or any other person or entity, and the Indemnitors waive
any benefit of, and any right to participate in, any security or collateral
given to RECP to secure the payment of performance of all or any part of the
Indemnified Obligations.
13. No Waiver; Cumulative Rights. No failure on the part of RECP to
exercise, and no delay in exercising, any right, remedy, or power hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, remedy, or power by RECP hereunder preclude any other or future
exercise of any right, remedy, or power by RECP. Except as otherwise provided
herein, the remedies herein provided are cumulative and not exclusive of any
remedies provided by law or in equity.
7
14. Assignment. This Indemnity Agreement shall be binding upon
Indemnitors and upon their successors and assigns and shall inure to the
benefit of and be enforceable by RECP and its respective transferees,
successors and assigns under the Operating Agreement and the other Transaction
Documents. Indemnitors may not assign, transfer or delegate their rights,
interests or obligations, in whole or in part, under this Indemnity Agreement
to any other Person, and any purported assignment or delegation hereof in
violation of the foregoing shall be null and void. Subject to the foregoing,
without limiting the effect of specific references in any provision of this
Indemnity Agreement, all references herein to Indemnitor shall be deemed to
include the respective heirs, executors, administrators, legal
representatives, successors and permitted assigns, all of whom shall be bound
by the provisions of this Indemnity Agreement. The successors and permitted
assigns of the Indemnitors shall include, without limitation, their respective
receivers, trustees or debtors-in-possession. All references to the singular
shall be deemed to include the plural where the context so requires. All
references to the plural shall be deemed to include the singular where the
context so requires.
15. Headings and Captions. All headings and captions contained in
this Indemnity Agreement are inserted for convenience only and shall not be
deemed a part of this Indemnity Agreement.
16. Variance of Pronouns. All pronouns and all variations thereof
shall be deemed to refer to the masculine, feminine or neuter, singular or
plural, as the identity of the person or entity may require.
17. Counterparts. This Indemnity Agreement may be executed in two or
more counterparts, each of which shall constitute an original and all of which,
when taken together, shall constitute one agreement.
18. Governing Law. This Indemnity Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to the conflict of laws provisions thereof.
19. Consent to Jurisdiction. To the fullest extent permitted by law,
each party hereto hereby irrevocably consents and agrees, for the benefit of
each party, that any legal action, suit or proceeding against it with respect
to its obligations, liabilities or any other matter under or arising out of or
in connection with this Indemnity Agreement, and with respect to the
enforcement, modification, vacation or correction of an award rendered in an
arbitration proceeding, shall be brought in any city, state or federal court
located in the Borough of Manhattan, The City of New York (a "New York Court"),
and hereby irrevocably accepts and submits to the jurisdiction of each such New
York Court with respect to any such action, suit or proceeding. Each party
hereto also hereby irrevocably consents and agrees, for the benefit of each
other party, that any legal action, suit or proceeding against it shall be
brought in any New York Court, and hereby irrevocably accepts and submits to
the exclusive jurisdiction of each such New York Court with respect to any such
action, suit or proceeding. Each party hereto waives any objection which it may
now or hereafter have to the laying of venue of any of the aforesaid actions,
suits or proceedings brought in any such New York Court and hereby further
waives and agrees not to plead or claim in any such New York Court that any
such action, suit or proceeding brought therein has been brought in an
inconvenient forum. Each party agrees that (i) to the fullest extent permitted
by law, service of process may be effectuated hereinafter by mailing a copy of
the summons and complaint or other pleading by
8
certified mail, return receipt requested, at its address set forth above and
(ii) all notices that are required to be given hereunder may be given by the
attorneys for the respective parties.
20. No Third Party Beneficiaries. Except as expressly stated herein, this
Indemnity Agreement is not intended and shall not be construed as granting any
rights, benefits or privileges to any Person not a party to this Indemnity
Agreement. It is agreed that those persons and entities included in the
definition of "Indemnified Persons" are not such excluded third party
beneficiaries.
21. Construction of Documents. The parties hereto acknowledge that they
were represented by separate and independent counsel in connection with the
review, negotiation and drafting of this Indemnity Agreement and that this
Indemnity Agreement shall not be subject to the principle of construing its
meaning against the party that drafted same.
22. Effectiveness; Termination. The obligations of Indemnitors under this
Indemnity Agreement shall terminate upon the indefeasible payment and
satisfaction in full of the Managing Member Return (except with respect to
claims made prior to such date and with respect to any third party claims, for
which it shall remain in full force and effect). This Indemnity Agreement shall
become effective with respect to each Indemnitor upon its execution by
Indemnitor and, except as otherwise revoked. If, notwithstanding the foregoing,
Indemnitors shall have any right under applicable law to terminate or revoke
this Indemnity Agreement, Indemnitors agree that such termination or revocation
shall not be effective until a written notice of such revocation or termination,
specifically referring hereto, signed by the Indemnitors, is actually received
by RECP. Such notice shall not affect the right and power of RECP to enforce
rights arising prior to receipt of the notice.
23. Waiver of Jury Trial. EACH PARTY TO THIS INDEMNITY AGREEMENT HEREBY
EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OR ANY CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION (A) ARISING UNDER THE INDEMNITY AGREEMENT, INCLUDING, WITHOUT
LIMITATION, ANY PRESENT OR FUTURE MODIFICATION THEREOF OR (B) IN ANY WAY
CONNECTED OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY
OF THEM WITH RESPECT TO THE INDEMNITY AGREEMENT (AS NOW OR HEREAFTER MODIFIED)
OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE
WHETHER SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION IS NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND
EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY
PARTY TO THIS INDEMNITY AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF
THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES
HERETO TO THE WAIVER OF ANY RIGHT THEY MIGHT OTHERWISE HAVE TO TRIAL BY JURY.
24. Validity; Severability. Every provision of this Indemnity Agreement is
intended to be severable. The invalidity, illegality and unenforceability of any
particular provision of this Indemnity Agreement in any jurisdiction shall not
affect the other provisions hereof, and this Indemnity Agreement shall be
construed in all respects as if such invalid, illegal or unenforceable
provision were omitted and the remaining provisions shall remain in full force
9
and effect and shall be construed without giving effect to the invalid, illegal
or unenforceable provisions.
25. Entirety. This Indemnity Agreement represents the entire agreement of
the parties hereto with respect to the subject matter hereof, and supersedes all
prior and contemporaneous oral, and all prior written, agreements and
understandings, if any, including any commitment letters or correspondence,
relating to the subject matter hereof.
26. Amendments, Waivers and Consents. Neither this Indemnity Agreement nor
any of the terms hereof may be amended, changed, waived, discharged or
terminated, nor shall any consent or approval of RECP be granted hereunder,
unless such amendment, change, waiver, discharge, termination, consent or
approval is in writing signed by RECP. No waiver of any provision hereof by any
party hereto shall be deemed a waiver by any other party nor shall any such
waiver by any party be deemed a continuing waiver of any matter by such party.
27. Further Assurances. Indemnitors agree to execute, acknowledge, deliver,
file and record such further certificates, amendments, instruments and
documents, and to do all such other acts and things, as may be required by law
or as, in the reasonable judgment of RECP, may be necessary or advisable to
carry out the intent and purpose of this Indemnity Agreement.
28. Time is of the Essence. Time is of the essence with respect to any of
the matters set forth in this Indemnity Agreement.
29. Notices. Unless otherwise specified in this Agreement, all notices and
other communications provided for hereunder shall be in writing (including by
facsimile transmission) and mailed or sent or delivered at the addresses
specified below. All such notices and communications shall be given by hand or
facsimile transmission; provided that, in the event that facsimile transmission
facilities are not operational, such notices and communications may be given
mail, but the sender shall use reasonable efforts to confirm facsimile
transmission facilities shall become operational. All such notices and
communications shall be effective when delivered by hand, or, in the case of
mail, upon the earlier of receipt and confirmation by facsimile transmission as
provided below, or, in the case of facsimile transmission, when sent as
addressed as set forth herein and confirmation of delivery is received. The
addresses of each party shall be as set forth in the preamble hereof, provided
that each party to this Agreement may, from time to time, change its notice
address, by giving notice to the Company and the other parties herein in the
manner provided in this Section.
[SIGNATURES BEGIN ON THE FOLLOWING PAGE]
10
IN WITNESS WHEREOF, this Indemnity Agreement has been duly executed by
RECP and the Indemnitors as of the day and year first set forth above.
INDEMNITORS:
▇▇▇▇▇▇▇ PARTNERS-HOPE PLACE, LTD., a
California limited partnership
By: ▇▇▇▇▇▇▇ PARTNERS BGHS, LLC
a California limited liability company,
its Managing Member
By: ▇▇▇▇▇▇▇ PARTNERS SCS, INC.
a California corporation,
its Manager
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
----------------------------
Name:
----------------------------
Title:
----------------------------
▇▇▇▇▇▇▇ PARTNERS BGHS, LLC, a
California limited liability company
By: ▇▇▇▇▇▇▇ PARTNERS SCS, INC.
a California corporation,
its Manager
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
----------------------------
Name:
----------------------------
Title:
----------------------------
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
11
INDEMNITEE:
RECP LIBRARY LLC, a
Delaware limited liability company
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Treasurer
12
JOINDER AGREEMENT
The undersigned is executing and delivering this Joinder Agreement pursuant to
Section 3.4 of the limited liability company agreement of Bunker Hill Equity
LLC (the "Company"), dated as of March 27, 2002 (the "LLC Agreement") by and
among ▇▇▇▇▇▇▇ Partners-Hope Place, Ltd., ▇▇▇▇▇▇▇ Partners-BGHS, LLC, RECP
Library LLC and ▇▇▇ ▇. ▇▇▇▇▇▇▇▇.
By executing and delivering this Joinder Agreement, the undersigned hereby
agrees to become a member of the Company, to become a party to, to be bound by
and to comply with the provisions of the LLC Agreement, in the same manner as
if the undersigned were an original signatory to such agreement. In connection
therewith, effective as of the date hereof, the undersigned hereby makes the
representations and warranties contained in Section 3.4 of the LLC Agreement.
Accordingly, the undersigned has executed and delivered this Joinder Agreement
as of the _____ day of ______________.
By: ____________________
Name:
Title:
THIRD AMENDMENT TO AND RESTATEMENT OF LEASING AGENCY AGREEMENT
1. PARTIES
This Third Amendment To And Restatement Of Leasing Agency Agreement
("AGREEMENT"), executed as of March 27, 2002 is entered into by and between
▇▇▇▇▇▇▇ PARTNERS DEVELOPMENT, LTD., a California limited partnership (formerly
known as ▇▇▇▇▇▇▇/▇▇▇▇▇▇ Partners Development, Ltd., a California limited
partnership) ("BROKER"), and LIBRARY SQUARE ASSOCIATES, LLC, a Delaware limited
liability company (successor-in-interest to ▇▇▇▇▇▇▇/▇▇▇▇▇▇ Partners-Library
Square, Ltd., a California limited partnership) ("OWNER").
2. RECITALS
2.1 Owner owns the high-rise office building with plaza commercial space
located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ (the "PROJECT").
2.2 The parties to this Agreement are all the parties to that certain
Leasing Agency Agreement dated as of May 22, 1987, as modified by the terms of
that certain Amendment to Leasing Agency Agreement dated as of July 21, 1989 and
that certain Second Amendment to Leasing Agency Agreement dated as of January
16, 1998 (collectively, the "LEASING AGENCY AGREEMENT").
2.3 RECP Library LLC ("RECP") and affiliates of Owner, ▇▇▇▇▇▇▇
Partners-Hope Place, Ltd., ▇▇▇▇▇▇▇ Partners-BGHS, LLC, are forming Bunker Hill
Equity, LLC, a Delaware limited liability company (the "COMPANY") pursuant to
that certain Limited Liability Company Agreement dated and effective as of the
date hereof (the "COMPANY AGREEMENT"), and the Leasing Agency Agreement must be
amended in certain respects in connection therewith. Capitalized terms used but
not otherwise defined herein shall have the meanings ascribed to them in the
Company Agreement.
2.4 Owner has entered into a $200,000,000 loan ("LOAN") (referred to in
the Company Agreement as the "Existing Mortgage Debt") with GMAC Commercial
Mortgage Corporation, a California corporation ("LENDER"), pursuant to the terms
of that certain Loan Agreement dated as of January 16, 1998 (as heretofore
amended, the "LOAN AGREEMENT"), and the Loan is secured by the Project.
2.5 Affiliates of Owner are obtaining the New Subordinated Debt defined in
the Company Agreement as, collectively, the Senior Mezzanine Debt and the Junior
Mezzanine Debt.
2.6 Concurrently herewith, Owner and Broker are entering into that certain
Third Amendment To And Restatement Of Management Agreement dated of even date
herewith ("MANAGEMENT AGREEMENT").
-1-
2.7 Owner desires to continue to engage Broker to be the exclusive leasing
agent for the Project in accordance with the terms and conditions set forth
herein and Broker desires to accept such engagement upon the terms set forth
herein. This agreement amends and restates all of the terms and provisions of
the Leasing Agency Agreement and the Leasing Agency Agreement is hereby
superceded and terminated.
NOW, THEREFORE, in consideration of the premises and the mutual advantage
to each of the parties hereto, it is agreed and understood as follows:
3. EXCLUSIVE LEASING AGENT
3.1 Owner hereby appoints Broker as its sole and exclusive leasing agent
and hereby grants to Broker the exclusive right to lease the whole or any part
of the Project subject to the terms and conditions set forth herein. Broker
agrees to use its best efforts to lease the Project on terms and conditions
acceptable to Owner as soon as possible. Owner has the right in its sole
discretion to approve or disapprove any proposed tenant or the terms and
conditions of any proposed lease. Broker shall at all times comply with the
provisions of Paragraph 5.2(c) of the Company Agreement.
3.2 During the term of this Agreement, Owner shall refer to Broker all
offers and inquiries by prospective tenants for the Project, and Broker shall
diligently investigate and develop such offers or inquiries and to canvass,
solicit and otherwise employ its services to endeavor to lease the Project. All
leases and all modifications and extensions thereof are to be prepared,
approved, and executed by Owner. Broker shall not disclose any leases or
information contained to any third party.
3.3 Owner shall pay Broker and Broker shall accept as full compensation for
its services in connection with each executed and delivered lease ("LEASE"),
subject to Section 8, a commission to be computed on the rent payable to Owner
under the Lease in accordance with Exhibit "A" attached hereto and made a part
hereof.
4. OTHER SERVICES
In addition to the leasing services to be performed pursuant to this
Agreement, Broker shall:
(a) Assist Owner in the preparation of updated statistical and
promotional material which Owner deems necessary for an effective leasing
program.
(b) Work with the Project architect and contractor in negotiation of
tenant allowances, if any, and the coordination thereof.
(c) Assist Owner in the preparation of a preliminary rental pro forma
statement to serve as a guideline in determining tenant rental and allowance
budgets.
(d) File monthly written reports detailing the status of all tenants
negotiations and prospects as well as market status reports.
-2-
5. TERM OF AGREEMENT
This Agreement shall become effective as of the date hereof and shall
expire on the date (the "EXPIRATION DATE") which is five (5) years thereafter,
unless sooner terminated for cause as follows.
(a) Owner may terminate this Agreement at any time if Broker fails to fully
and faithfully discharge its responsibilities hereunder.
(b) Owner may terminate this Agreement if the Project is sold.
Notwithstanding anything to the contrary contained herein, the term "sold" as
used in this Section 5(b) shall not include any form of refinancing or sale of
an undivided interest of less than 50% of the Project or a sale of less than 50%
of the Project.
(c) Owner may terminate this Agreement at any time on 90 days' written
notice if it should determine that Broker's performance hereunder does not
conform with the then prevailing general level of performance of other brokers
having exclusive agency agreements with respect to other Institutional Quality
Buildings (defined in the Management Agreement).
(d) Owner may terminate this Agreement, without any penalty or fee (other
than accrued and unpaid fees payable under the terms of this Agreement), on
thirty (30) days' written notice if there exists and is continuing an "Event of
Default" as defined under the Loan Agreement.
(e) Anything in this Agreement to the contrary notwithstanding, Owner may
terminate this Agreement, without any penalty or fee (other than accrued and
unpaid fees payable under the terms of this Agreement), by notice to broker
effective immediately, if there exists and is continuing an "Event of Default"
as defined under the Loan Documents.
(f) Anything in this Agreement to the contrary notwithstanding, Owner may
terminate this Agreement, without any penalty or fee (other than accrued and
unpaid fees payable under the terms of this Agreement), by notice to Broker
effective immediately, if there exists and is continuing an "Event of Default"
as defined under the Loan Documents.
(g) Anything in this Agreement to the contrary notwithstanding, Owner may
terminate this Agreement without any penalty or fee (other than accrued and
unpaid fees payable under the terms of this Agreement) by notice to Broker
effective immediately, upon the occurrence of any event which gives rise to the
right of any of the lenders under the Loan Documents to require the termination
of this Agreement or the Management Agreement.
(h) Anything in this Agreement to the contrary notwithstanding, Owner may
terminate this Agreement without any penalty or fee (other than accrued and
unpaid fees payable under the terms of this Agreement) by notice to Broker, upon
the occurrence of any event which gives rise to the right of Owner under the
Management Agreement to terminate the Management Agreement.
-3-
The termination or cancellation of this Agreement shall have no effect on
the right of Broker to receive commissions which have accrued at the time of
such termination or cancellation.
6. RENEWAL OF AGREEMENT.
Provided this Agreement has not therefore been terminated pursuant to the
provisions of Section 5, approximately 6 months in advance of the projected
Expiration Date, Owner and Broker shall meet with one another to negotiate in
good faith to renew this Agreement on terms and conditions which are no less
favorable to Owner than those then prevailing among brokers holding exclusive
agency agreements with other Institutional Quality Buildings (defined in the
Management Agreement), including without limitation (a) the duties and
obligations of Broker to Owner, (b) commission schedules and (c) Broker's
compensation for a Lease with respect to which another broker is also entitled
to compensation.
7. RIGHTS UPON TERMINATION OR EXPIRATION
Upon expiration or termination of this Agreement for any reason, Owner
shall continue to recognize Broker as the broker, and Broker shall be entitled
to commissions hereunder, with respect to any Lease executed prior to the
Expiration Date or earlier termination hereof. In addition, within twenty (20)
days after the expiration or termination of this Agreement, Broker shall be
entitled to provide Owner a list of prospective tenants with whom negotiations
have commenced for space in the Property. "COMMENCEMENT OF NEGOTIATIONS" with
any particular tenant, for such purposes, shall have occurred if, during the
term of this Agreement, Broker has physically shown space in the Property to the
prospective tenant, or such prospective tenant has received or submitted a
letter or proposal in writing with respect to terms and conditions of a lease
for space in the Property. If, within nine (9) months after the expiration of
the terms of this Agreement, a lease for space in the Property is consummated
with any tenant appearing on the list so provided by Broker, then Broker shall
be entitled to a commission with respect to such lease as if such lease had been
executed during the term of this Agreement.
8. OTHER BROKER COMMISSIONS
(a) If a licensed real estate broker other than Broker, or a broker
affiliated or associated with Broker, is the procuring cause of any Lease in the
Project, Owner will pay such other broker any commissions which are included in
the Approved Budget (as defined in the Partnership Agreement) and as agreed upon
by Owner and such other broker.
(b) With respect to any Lease entered into prior to the Expiration
Date, where Owner pays a commission to such other broker referred to in (a)
above, then Broker shall be entitled to a commission only in the amount of 50%
of the commission Broker would have otherwise been entitled to under Exhibit
"A"; provided, however, in no event shall the aggregate commissions paid by
Owner for any such Lease exceed one full commission as computed in accordance
with Exhibit "A" without the express consent of Managing Member.
-4-
9. ACCELERATION OF COMMISSIONS UPON SALE TO UNRELATED THIRD PARTY
If a sale of the Project is consummated and fee title passes to the buyer
(other than a sale leaseback to Owner or an entity in which Owner or any
principal of Owner has a substantial interest), all commissions or fees then
earned by, but not yet paid to, Broker shall be accelerated at Broker's option
and be due and payable, unless Owner shall deliver to Broker an agreement by the
grantee, in form and substance and from a party reasonably acceptable to Broker,
assuming payment of such commissions and fees. If Broker accepts any such
agreement, Owner shall have no further liability for such payments.
10. INDEMNIFICATION
Owner agrees to defend and hold and save Broker free and harmless from any
claim for damages or injuries to persons or property on the Project site to the
extent such claim for damages or injuries arises by reason of the negligence or
willful misconduct of Owner or Owner's employees, agents, or contractors when
Broker is carrying out the provisions of this Agreement or acting under the
express or implied directions of Owner. Broker agrees to defend and hold and
save Owner free and harmless from any claim for damages or injuries to persons
or property on the Project site to the extent such claim for damages or injures
arises by reason of the negligence or willful misconduct of Broker or Broker's
employees, agents or contractors. The provisions of this paragraph shall survive
the termination of this Agreement, but this shall not be construed to mean that
the parties' liability does not survive as to other provisions of this
Agreement.
11. ENTIRE AGREEMENT AND MODIFICATIONS
This Agreement constitutes the entire agreement between the parties with
respect to the payment of leasing commissions and supersedes all prior and
contemporaneous agreements, representations and understanding of the parties
with respect to the subject matter hereof. No supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by all
of the parties.
12. ASSIGNS AND SUCCESSORS
This Agreement may not be assigned by Broker without written consent of
Owner. Except as otherwise provided, this Agreement shall be binding on the
parties hereto, their successors and assigns.
13. SUBORDINATION
The parties agree that this Leasing Agency Agreement and all of the rights
and obligations of the parties hereunder shall be absolutely and unconditionally
subordinate to the lien of the Existing Mortgage Debt and of any valid and
recorded mortgages and deeds of trust encumbering the Project and to the New
Subordinated Debt and to any refinancing of any of the foregoing, and Broker
shall have no right to proceed against any lender taking the Project under such
deed of trust or through a deed in lieu of foreclosure, or any purchaser at a
foreclosure sale conducted pursuant to the terms of such deed of trust. Although
the subordination contained in this Section 13 shall not require the execution
of any additional documentation, Broker agrees to
-5-
execute any such additional documentation evidencing such subordination which
Owner requests Broker to execute.
14. BROKERS' LICENSE
Broker shall at all times material hereunder be licensed as a real estate
broker in the State of California.
15. GOVERNING LAW
This Agreement is executed with respect to a project located in the State
of California but shall be governed by and construed in accordance with the laws
of the State of New York. To the fullest extent permitted by law, each party
hereto hereby irrevocably consents and agrees, for the benefit of each party,
that any legal action, suit or proceeding against it with respect to its
obligations, liabilities or any other matter under or arising out of or in
connection with this Agreement, shall be brought in any city, state or federal
court located in the Borough of Manhattan, The City of New York (the "DESIGNATED
COURTS"), and hereby irrevocably accepts and submits to the jurisdiction of the
Designated Courts (and of the appropriate appellate courts) of each such
Designated Court with respect to any such action, suit or proceeding. Each party
hereto also hereby irrevocably consents and agrees, for the benefit of each
other party, that any legal action, suit or proceeding against it shall be
brought in any Designated Court, and hereby irrevocably accepts and submits to
the exclusive jurisdiction of each such Designated Court with respect to any
such action, suit or proceeding. Each party hereto waives any objection which it
may now or hereafter have to the laying of venue of any of the aforesaid
actions, suits or proceedings brought in any such Designated Court and hereby
further waives and agrees not to plead or claim in any such Designated Court
that any such action, suit or proceeding brought therein has been brought in an
inconvenient forum. Each party agrees that (i) to the fullest extent permitted
by law, service of process may be effectuated hereinafter by mailing a copy of
the summons and complaint or other pleading by certified mail, return receipt
requested, at its address set forth below and (ii) all notices that are required
to be given hereunder may be given by the attorneys for the respective parties.
-6-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth in Section I above.
OWNER:
LIBRARY SQUARE ASSOCIATES, LLC.
a Delaware limited liability company
By: BUNKER HILL SENIOR MEZZANINE, LLC
a Delaware limited liability company
Its Member
By: BUNKER HILL JUNIOR MEZZANINE, LLC
a Delaware limited liability company
Its Member
By: BUNKER HILL EQUITY, LLC,
a Delaware limited liability company
Its Member
By: ▇▇▇▇▇▇▇ PARTNERS BGHS, LLC
a California limited liability company
Its Authorized Member
By: ▇▇▇▇▇▇▇ PARTNERS SCS, INC.
a California corporation
Its Manager
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
Name:
Title:
-7-
BROKER:
▇▇▇▇▇▇▇ PARTNERS DEVELOPMENT, LTD.,
a California limited partnership
By: ▇▇▇▇▇▇▇ PARTNERS MANAGEMENT COMPANY, LLC,
a California limited liability company
its general partner
By: ▇▇▇▇▇▇▇ PARTNERS SCS, INC.,
a California corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
Name:
Title:
-8-
EXHIBIT "A"
SCHEDULE OF LEASING COMMISSIONS
1. COMMISSION RATE. Subject to the terms of the Agreement to which this
Exhibit "A" is attached, Owner agrees to pay Broker's commissions for Leases of
office, storage and retail space in the Project as follows:
Owner shall pay commissions of 4% of the total Minimum Base Rent for the
first 5 years of the lease term of each Lease, and 2% of the total Minimum Base
Rent for the 6th through 15th years of the lease term, together with commissions
for such adjustments as may be made from time to time as required by the
provisions of this Exhibit "A". In the event the lease term is in excess of 15
years, no commission shall be paid on said excess term.
2. COMPUTATION OF COMMISSIONS. Commissions shall be computed in accordance
with the above rates based upon the "Minimum Base Rent" as set forth in the
Lease, as follows:
(a) The term "Minimum Base Rent" shall mean the fixed minimum annual
rent provided in the Lease for office, storage or retail space, excluding any
and all other additional rent (such as, but not limited to, operating expense
and tax escalations, payments for tenant improvements in excess of building
standard provided by Owner, percentage rent, cost-of-living escalation or
parking). If Owner determines in its sole discretion to offer space in the
Project for lease on a "net" basis, Minimum Base Rent shall be determined by
adding projected operating expenses and real property taxes for the first year
of such Lease to the "Net Rental Rate."
(b) Minimum Base Rent shall be reduced by the net cost to Owner of
any rental concessions of any kind, including but not limited to, tenant
improvements in excess of building standard, free rent, parking concessions,
lease buy-outs, lease take-overs, tax or operating expense concessions. With
respect to lease take-overs, the full rental and other payments for which Owner
is obligated thereunder shall reduce Minimum Base Rent, provided that, if Owner
later reduces its obligations under such lease take-over, by buy-out, sublease
or otherwise, an adjustment in the commission payable hereunder shall be made
and paid to Broker at the time such obligation is reduced in order to reflect
the final, actual net cost to Owner of such obligations, including all costs,
commissions and expenses incurred by Owner directly in connection with the
reduction thereof. Building standard tenant improvements shall be $20.00 per
square foot subject to change as Owner and Broker shall agree in writing from
time to time on an annual basis.
Any equity interest owned by a tenant in the Project shall not affect the
Minimum Base Rent, provided that any guaranteed payments or offsets for the
benefit of the tenant, such as guaranteed rent credits, which are not
subordinate to any first trust deed or mortgage on the Project, shall be
deducted from Minimum Base Rent for the period in which the payment or offset
is available to the tenant. (Such unsubordinated payments or offsets shall not
be averaged in accordance with Paragraph 2(c) below.)
A-1
(c) If a rental concession is made by Owner allowing tenant not to pay
rent for a period of the lease term or if other rental concessions are incurred
by Owner, then the commission shall be determined as follows: The rental
concessions shall first be averaged over the entire term of the lease period
which is not cancelable by the tenant. Commissions at the 4% rate shall be
computed as though the tenant commenced payment of rent on the commencement date
of the Lease, but less the average annual rental concession. Commissions at the
rate of 2% shall be calculated commencing five years after the commencement date
of the Lease on the rent then payable, also less the average annual rental
concession. To illustrate, assume Owner enters into a Lease for 100,000 square
feet for a lease term of twenty years at an annual Minimum Base Rent of $30.00
per square foot for five years and $40.00 per square foot for fifteen years,
with the tenant entitled to one year of free rent in the first five years. The
average annual rental concession would be $150,000 ($3,000,000 divided by 20 =
$150,000). The total commission for the Lease would be $1,340,000, computed as
follows: First year of the lease term through the fifth year equals $570,000
($3,000,000 - $150,000) x 4% = $114,000 x 5 = $570,000); sixth year of the lease
term through fifteenth year equal $770,000 ($4,000,000 - $150,000 x 2% = $77,000
x 10 = $770,000).
3. OPTIONS FOR ADDITIONAL SPACE.
(a) If a tenant leases additional space pursuant to an option,
including "hold space" or "must-take" options, or right of first refusal
contained in its Lease, Owner shall pay to Broker a commission on the Minimum
Base Rent for such additional space in accordance with Paragraph 1 above,
computed as if the tenant had been obligated to lease such additional space
under the original Lease. In no event shall any commission be paid with respect
to any such additional space for any portion of a lease term beyond the 15th
anniversary of the commencement date of such Lease. To illustrate, assume that a
tenant entered into a Lease with a twenty-year term with an option to lease
additional space at any time during the term of the Lease for the balance of the
term of the lease. Assume that the tenant exercises the option to lease the
additional space commencing the fourth year of the term of the Lease. Broker
would be entitled to a commission of 4% of the additional annual Minimum Base
Rent for two years and 2% of the additional annual Minimum Base Rent for ten
years.
(b) In computing the additional commission payable under Paragraph
3(a) above, the initial commission paid with respect to the Lease shall not be
recalculated. Any rental concessions with respect to renewal or extension terms
and additional space leased shall be averaged over the remaining lease term with
respect to only the extended term or additional space in accordance with Section
2 above. To illustrate, assume Owner enters into a Lease for 10,000 square feet
at an annual Minimum Base Rent of $30.00 per square foot with a lease term of
twenty years, with tenant entitled to one year of free rent. Tenant exercises an
option to lease 3,995 additional square feet at $35.00 per square foot
commencing the fourth year of the term of the Lease with one year free rent for
such additional space. The total commission for the Lease would be $150,848,
computed as follows: For the initial space the total is $114,000 calculated as
follows: The average annual rental concession is $15,000 (10,000 x $30.00
divided by 20 = $15,000); the commission for the first year of the lease term
through the fifth year equals $57,000 (($300,000 - $15,000) x 4% x 5 = $57,000);
sixth year of the lease term through fifteenth year equals $57,000 (($300,000 -
$15,000) x 2% x 10 = $57,000; for the additional space the total is $36,848
calculated as follows: The average annual rental concession for the
A-2
additional space is $8,225 (3,995 x $35.00 divided by 17 = $8,225); the
commission for the fourth and fifth year of the lease term equals $10,528
(($139,825 - $8,225) x 4% = $5,264 x 2 = $10,528); sixth year of the lease term
through the fifteenth year equals $26,320 (($139,825 - $8,225) x 2% = $2,632 x
10 = $26,320).
(c) Commissions pursuant to Paragraph 3(a) above, attributable to
options exercised after the original occupancy by tenant shall be deemed
payable upon commencement of the term of such Lease. In the case of options
exercised prior to the occupancy, such commissions shall be due and payable in
the same manner as if the option had been exercised on the date the Lease was
executed.
4. CANCELLATION CLAUSES. Where the tenant, or Owner, has the right to cancel
a Lease prior to the expiration date, Broker shall initially be paid a
commission based on the aggregate Minimum Base Rent for the uncancellable
portion of the term (with rent concessions averaged over the uncancellable
portion of the term), plus any cancellation penalty or fee payable by tenant
pursuant to the Lease. If, thereafter, the Lease is not cancelled by the tenant
or if the right of cancellation is exercised by Owner only, the entire
commission shall be recalculated based on the aggregate Minimum Base Rent for
the entire lease term, less the cancellation fee or penalty, computed as if
there had been no right of cancellation in the Lease, and the recalculated
commission less the commission initially paid for the uncancellable portion of
the lease term shall be paid to Broker. Said difference shall be paid to Broker
within 30 days after it is finally determined that the tenant has not exercised
its right to cancel and no longer has such right pursuant to the terms of the
Lease, or, if later, in accordance with the provisions of Section 7 below. A
Lease shall not be deemed cancelled within the meaning of this paragraph unless
the tenant is not obligated to pay rent.
5. LEASEBACK OF SPACE BY OWNER. If in connection with the entering of any
Lease, Owner (or an entity owned or controlled by Owner) leases back from the
tenant a portion of the leased premises, Broker's commission shall be computed
only on the Minimum Base Rent to be paid by tenant during the lease term
excluding any rent attributable to the space leased back to Owner (or an entity
owned or controlled by Owner). To illustrate, assume a tenant enters into a
twenty-year lease for 50,000 square feet at an annual Minimum Base Rent of
$30.00 per square foot, and 25,000 square feet are leased back to Owner for
five years. Broker's commission for the first five years of the lease term would
be $150,000 (25,000 sq. ft. x $30.00 = $750,000 x 4% = $30,000 x 5 years =
$150,000) and $300,000 for the next ten years of the lease term (50,000 sq. ft.
x $30.00 = $1,500,000 x 2% = $30,000 x 10 years = $300,000), for a total
commission of $450,000.
6. PERIODIC RENT ADJUSTMENTS. If there are periodic rent adjustments under a
Lease other than payments for percentage rent under retail Leases, Owner will
pay Broker a commission on the "net increases" in rent (the increase in gross
rent less the sum of the increase in base taxes or the tax stop plus operating
expenses or expense stop) in accordance with Section 2 and as follows:
(a) If the amount of the net increase is established at the time of
Lease execution, commissions will be calculated taking into account such
increase in accordance with Section 2 and paid in accordance with Section 7
below.
A-3
(b) If the amount of the net increase is not determined at the time
of Lease execution, either because it is based upon a cost of living factor or a
fair market value adjustment, Owner will pay Broker a commission for the
difference between commissions computed using the initial rent and commissions
computed using the net increased rent at the time such net increased rent is
determined. Any rental concessions made in connection with the later adjustment
of rent shall be averaged over the then remaining term of the Lease in computing
the additional commission due. To illustrate, assume Owner enters into a Lease
for 50,000 square feet for a lease term of twenty years at an annual Minimum
Base Rent of $30.00 per square foot for ten years and fair market value for ten
years, with the tenant entitled to one year of fee rent in the first five years.
the initial combined operating expense and tax stop is $8.00. For the eleventh
through twentieth years of the lease term, fair market value is later determined
to be $45.00 per square foot, with the tenant entitled to six months free rent
in any of those years, and the combined operating expense and tax stop is
adjusted to $15.00. the total commission for the Lease would be $598,750,
computed as follows: The initial commission computation yields a commission of
$570,000, calculated as follows: The average annual rental concession is $75,000
(50,000 x $30.00 divided by 20 = $75,000); the commission for the first year of
the lease term through the fifth year equals $285,000 (($1,500,000 - $75,000) x
4% x 5 = $285,000); sixth year of the lease term through the fifteenth year
equals $285,000 (($1,500,000 - $75,000) x 2% x 10 = $285,000). The additional
commission payable upon determination of the fair market value is $28,750,
computed as follows: The average annual rental concession for the first ten
years of the lease term is $75,000, as calculated above. The average annual
rental concession for the eleventh through twentieth years is $187,500,
calculated as follows: $75,000 plus (50,000 x $45.00 divided by two and divided
by ten) = $187,500. The net increased rent for the eleventh through twentieth
years is $38.00 per square foot ($45.00 - $15.00 - $8.00) = $38.00). The entire
lease commission calculated at the time of the fair market value determination
is $598,750, calculated as follows: The commission for the first year of the
lease term through the fifth year equals $285,000 (($1,500,000 - $75,000) x 4% x
5 = $285,000); sixth year of the lease term through the tenth year equals
$142,500 (($1,500,000 - $75,000) x 2% x 5 = $142,500); tenth year of the lease
term through fifteenth year equals $171,250 (($38.00 x 50,000) - $187,500) x 2%
x 5 = $171,250). The additional commission due after the determination of fair
market value is $28,750 ($598,750 - $570,000 = $28,750).
7. TIME OF PAYMENT. Except as otherwise provided, commissions earned by
Broker pursuant to this Agreement are payable as follows:
(a) One-half upon execution of the Lease by both tenant and Owner.
(b) The balance upon occupancy by tenant.
Examples of commission calculations are attached on Schedule 1.
A-4
SCHEDULE 1
TO EXHIBIT "A"
The following hypothetical transaction illustrates how a commission would be
paid to Broker pursuant to calculations in accordance with Exhibit "A".
1. TRANSACTION ASSUMPTIONS.
1.1 Initial Space - 25,000 RSF (22,500 USF)
1.2 Must Take Space at 37th month - 5,000 RSF
1.3 Option Space
(a) 5,000 RSF taken at 6th year at then FMV = $35.000/RSF
(b) 5,000 RSF taken at 11th year at then FMV = $40.000/RSF
(c) 5,000 RSF taken at 16th year at then FMV = $45.000/RSF
1.4 Term - 20 years
1.5 Initial Space Rental (including Must Take Space)
(a) Years 1-5 = $30.00/RSF
(b) Years 6-10 = $35.00/RSF
(c) Years 11-15 = then FMV = $40.00/RSF
(d) Years 16-20 = then FMV = $45.00/RSF
(e) Initial free rent - One Year (not on Must Take Space)
1.6 Tenant Improvements - $40.00/USF (not on Must Take Space) (Building
Standard = $20.00/USF)
1.7 Lease Takeover - $750,000
2. COMMISSION CALCULATION AT LEASE COMMENCEMENT.
2.1 Aggregate Rental Years 1-5
(a) 25,000 RSF x $30.00 = $750,000 x 5 years = $3,750,000
(b) 5,000 RSF x $30.00 = $150,000 x 2 years = $ 300,000
----------
$4,050,000
2.2 Aggregate Rental Years 6-10
30,000 RSF x $35.00 = $1,050,000 x 5 years = $5,250,000
2.3 Aggregate Rental Years 11-15
30,000 RSF x $35.00 = $1,050,000 x 5 years = $5,250,000
S1-1
2.4 Aggregate Rental Years 16-20
30,000 RSF x $35.00 = $1,050,000 x 5 years = $5,250,000
2.5 Concessions
(a) Free Rent - 25,000 RSF x $30.00 = $750,000
(b) Over Building Standard
Tenant Improvements - $450,000
($40/USF x 22,500 USF = $900,000.
Building Standard = $20/USF x 22,500 USF = $450,000.
Over Building Standard = $900,000 - $450,000)
(c) Lease take over = $750,000
(d) Average Annual concession = $97,500
(Total of (a), (b) and (c) above divided by 20)
(e) $97,500 x 5 year increments = $487,500
2.6 Commission Calculation
(a) Years 1-5 = $4,050,000 - $487,500) x 4% = $142,500
(b) Years 6-10 = $5,250,000 - $487,500) x 2% = $ 95,250
(c) Years 11-15 = $5,250,000 - $487,500) x 2% = $ 95,250
(d) Total Commission at lease commencement = $333,000
3. ADDITIONAL COMMISSIONS DUE UPON LEASING OF OPTION SPACE
(a) At 6th year - $35,000
(5,000 RSF x $35.00) x 2% x 10 years = $35,000
(b) At 11th year - $20,000
(5,000 RSF x $40.00) x 2% x 5 years = $20,000
(c) No additional commission for option space at 16th year.
4. ADDITIONAL COMMISSION DUE UPON RECALCULATION FOR FMV ADJUSTMENT AT 11TH
YEAR
(a) Recalculate initial commission in accordance with Section 2.6,
but accounting for Rental Increase from $35.00/RSF to $40.00/RSF for years
11-15.
Recalculated commission = $348,000
(b) Additional commission = $348,000 - $333,000 = $15,000.
(c) No additional commission due for FMV increase at 16th year.
S1-2
[EXECUTION COPY]
OPTION AGREEMENT
This OPTION AGREEMENT (this "Agreement"), dated as of March
27, 2002, entered into among ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III, a resident of the State of
California with an address c/o Maguire Partners, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ("▇▇▇▇▇▇▇"), ▇▇▇▇▇▇▇ Partners-Hope Place,
Ltd., a California limited partnership, c/o Maguire Partners, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ("MP"), ▇▇▇▇▇▇▇ Partners
BGHS, LLC, a Delaware limited liability company, c/o Maguire Partners, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ("BGHS" and together
with MP, the "▇▇▇▇▇▇▇ Members") and RECP Library LLC, a Delaware limited
liability company with an address c/o DLJ Real Estate Capital Partners, Inc.,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ (together with its
transferees, successors and assigns, ("RECP")).
W I T N E S S E T H:
WHEREAS, RECP has entered into a limited liability company
agreement, dated as of the date hereof (the "Operating Agreement") of Bunker
Hill Equity, LLC, a Delaware limited liability company ("Company") with the
▇▇▇▇▇▇▇ Members and the Special Member (as defined therein);
WHEREAS, RECP will be issued limited liability company
interests (the "Managing Member Interests") in the Company pursuant to, and
subject to the terms and conditions of, the Operating Agreement in return for a
cash contribution of $60,000,000 (such contribution, together with any
subsequent Capital Contributions, the "Contribution");
WHEREAS, ▇▇▇▇▇▇▇ owns, directly or indirectly, an interest in
the Company, and the Company, through its direct and indirect Subsidiaries
(collectively and together with the Company, the "Companies"), owns the Property
(as defined in the Operating Agreement);
WHEREAS, the obligation of RECP to make the Contribution is
conditioned, among other things, on the execution and delivery by ▇▇▇▇▇▇▇ and
the ▇▇▇▇▇▇▇ Members of this Agreement;
WHEREAS, each of the parties hereto is willing to execute and
deliver this Agreement, to provide for certain rights and obligations concerning
the purchase of the Managing Member Interests upon the occurrence of certain
events in order to satisfy such condition precedent and otherwise;
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
covenant and agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. Capitalized terms used but not defined
herein shall have the meanings set forth in the Operating Agreement, all of
which are hereby incorporated herein by reference. The following terms shall
have the following meanings:
(a) "Put Event" shall mean the occurrence of
any one of the following:
(i) Involuntary Bankruptcy; Appointment
of Receiver, etc. (i) A court enters a decree or order for relief with respect
to any of the Companies, in an involuntary proceeding under the Bankruptcy Code;
(ii) the occurrence and continuance of any of the following events: (x) an
involuntary proceeding under the Bankruptcy Code is commenced with respect to
any of the Companies or any of the ▇▇▇▇▇▇▇ Members or ▇▇▇▇▇▇▇, or any of the
▇▇▇▇▇▇▇ Members or any of their respective Affiliates files any petition or
takes any action (directly or indirectly) seeking to put any of the Companies or
any of the ▇▇▇▇▇▇▇ Members in involuntary bankruptcy, (y) a decree or order of a
court for the appointment of a receiver, liquidator, sequestrator, trustee,
custodian or other officer having similar powers over any of the Companies or
any of the ▇▇▇▇▇▇▇ Members or over all or a substantial part of their respective
property, is entered, or (z) an interim receiver, trustee or other custodian is
appointed without the consent of the applicable Company, Subsidiary or ▇▇▇▇▇▇▇
Members, for all or a substantial part of the property of such Company,
Subsidiary or ▇▇▇▇▇▇▇ Members, in each case above only if such decree or order,
involuntary proceeding or appointment is the result of any direct or indirect
act of collusion by ▇▇▇▇▇▇▇, any of the ▇▇▇▇▇▇▇ Members or any of their
respective Affiliates with other creditors of the applicable Companies.
(ii) Voluntary Bankruptcy; Appointment
of Receiver, etc. If ▇▇▇▇▇▇▇, any of the ▇▇▇▇▇▇▇ Members or any of their
Affiliates directly or indirectly causes or takes any action that leads to (i)
an order for relief to be entered with respect to any of the Companies or any
Maguire Member to commence a voluntary case under the Bankruptcy Code or any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or consent to the entry of an order for relief in an involuntary case or
to the conversion of an involuntary case to a voluntary case under any such law;
(ii) any of the Companies or any ▇▇▇▇▇▇▇ Member to make any assignment for the
benefit of their respective creditors; or (iii) the managers, the Board of
Directors, the members or other governing body of any of the Companies or any
▇▇▇▇▇▇▇ Member to adopt any resolution or otherwise authorize action to approve
any of the actions referred to in this Subsection 1.1(a)(ii).
(iii) Sale of Property; Recapitalization
of any of the Companies. If ▇▇▇▇▇▇▇, either of the ▇▇▇▇▇▇▇ Members or any of
their respective Affiliates, individually, collectively or in collusion with
others challenge, compete with, interfere, hinder or otherwise obstruct, RECP's
efforts to sell or refinance the Property or recapitalize any of the Companies
during any period in which the Call Option has been suspended or has lapsed or
expired.
(iv) Fraud or Breach. If ▇▇▇▇▇▇▇, either
of the ▇▇▇▇▇▇▇ Members or any of their Affiliates commits (i) any fraud or
intentional and material misrepresentation in connection with the issuance of
the Managing Member Interests; (ii) any intentional misappropriation of funds in
breach of the Operating Agreement or any other Transaction Document (including
proceeds paid under any insurance policies or condemnation
2
proceedings, rents and security deposits); or (iii) any willful breach of
Section 6.9 or 11.1 of the Operating Agreement.
(v) Negligent or Criminal acts. If
▇▇▇▇▇▇▇, either of the ▇▇▇▇▇▇▇ Members or any of their Affiliates commits gross
negligence or criminal acts resulting in forfeiture, seizure or loss of all or
any portion of the Property or any direct or indirect interest therein,
including, without limitation, an interest in any of the Companies.
(vi) Obstruction of RECP's Right to
Control. If ▇▇▇▇▇▇▇ or any of the ▇▇▇▇▇▇▇ Members or any of their Affiliates,
individually, collectively or in collusion with others challenge, hinder,
obstruct or delay or cause any of the Companies to challenge, hinder, obstruct
or delay the right of RECP to assume unfettered control of any of the Companies
when there has occurred a Trigger Event, including, without limitation, with
respect to revoking any powers or duties delegated or granted to ▇▇▇▇▇▇▇, either
of the ▇▇▇▇▇▇▇ Members or any of their Affiliates under the Operating Agreement
or any other Transaction Document.
(vii) Loan Documents Obligations. If
▇▇▇▇▇▇▇ or either of the ▇▇▇▇▇▇▇ Members or any of their Affiliates commits any
act or omission that causes the non-recourse obligations under the Loan
Documents to become a recourse obligation to any of the Companies, RECP or any
Affiliate of RECP, and solely with respect to any obligation becoming recourse
to any of the Companies, ▇▇▇▇▇▇▇ or his Affiliates fail to pay or satisfy such
recourse obligation in full on behalf of the Companies within any cure or grace
period permitted under the applicable Loan Document.
(b) "Disability" with respect to a Person shall
mean the inability of such Person to perform his duties as a chief executive
officer of a real estate company owning properties similar to the Property in
any material manner by reason of physical or mental disability which continues
for a period of six consecutive months, or for a period of more than nine months
in the aggregate in any twelve-month period.
ARTICLE II
PUT OPTION
2.1 Put Option. ▇▇▇▇▇▇▇ and the ▇▇▇▇▇▇▇ Members
unconditionally and irrevocably agree that, at any time after the occurrence of
a Put Event, RECP may enforce its rights under this Agreement at RECP's election
by delivering a written notice of exercise (the "Put Notice") to ▇▇▇▇▇▇▇ and the
▇▇▇▇▇▇▇ Members. Within 3 Business Days of the delivery of the Put Notice by
RECP to ▇▇▇▇▇▇▇ and the ▇▇▇▇▇▇▇ Members, time being of the essence, ▇▇▇▇▇▇▇
and/or the ▇▇▇▇▇▇▇ Members, jointly and severally, will acquire or will cause
any other Person to acquire, from RECP the Managing Member Interests for a cash
amount equal to the Managing Member Return (the "Purchase Price"), (the
foregoing purchase referred to as the "Put Purchase"). The Put Purchase shall
take place at the time and place designated by RECP. The Put Purchase shall be
without recourse to RECP and RECP shall not be required to make any
representations and warranties in connection with the Put Purchase except as set
forth in Section 2.2(a) herein.
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2.2 Closing. At the closing of the Put Purchase
hereunder:
(a) RECP shall deliver to ▇▇▇▇▇▇▇ and/or any of
the ▇▇▇▇▇▇▇ Members and/or their designee, as the case may be, a certificate,
certificates (to the extent such certificates have been received) or any other
documentation evidencing transfer of the Managing Member Interests, in form
ready for transfer, free of any security interests, liens, pledges, claims of
third parties of any nature whatsoever, leases, levies, charges, escrows,
encumbrances, options, rights of first refusal, preemptive rights, transfer
restrictions, conditional sale contracts, title retention contracts,
hypothecations, indentures, security agreements or other agreements,
arrangements, contracts, commitments, understandings or obligations, whether
written or oral ("Encumbrances"), duly endorsed in blank ("Transfer
Documentation"). By delivering such Transfer Documentation, RECP shall be deemed
to represent and warrant to ▇▇▇▇▇▇▇ and/or any Maguire Member and/or any
designee, as the case may be, that RECP is the record and beneficial owner of
and has good and valid title to the Managing Member Interests being transferred
and that such Managing Member Interests are free and clear of any Encumbrances
and have not been transferred (and no rights with respect to such Managing
Member Interests were transferred or granted) by RECP to any party from the date
hereof and until such Closing.
(b) ▇▇▇▇▇▇▇ or the ▇▇▇▇▇▇▇ Members shall pay or
cause any other Person to pay to RECP by wire transfer of immediately available
funds the Purchase Price for the Managing Member Interests.
(c) ▇▇▇▇▇▇▇ and/or the ▇▇▇▇▇▇▇ Members and/or
any designee, as the case may be, shall pay or cause any other Person to pay all
out-of-pocket costs and expenses incurred by RECP or the Company in connection
with the Put Purchase, including, without limitation, documentation and deed
stamp taxes and other transfer taxes, recording fees, title insurance premiums,
loan fees (if any) and legal fees and expenses.
2.3 Obligations Independent. The obligations of ▇▇▇▇▇▇▇
and the ▇▇▇▇▇▇▇ Members hereunder are independent of the obligations of the
Company and the ▇▇▇▇▇▇▇ Members to RECP under the Operating Agreement and the
other Transaction Documents, and a separate action or actions may be brought and
prosecuted against ▇▇▇▇▇▇▇ and the ▇▇▇▇▇▇▇ Members irrespective of whether such
action is brought against the Company and the ▇▇▇▇▇▇▇ Members or whether Company
and the ▇▇▇▇▇▇▇ Members are joined in any such action or actions. ▇▇▇▇▇▇▇ and
the ▇▇▇▇▇▇▇ Members hereby waive the benefit of any statute of limitations
affecting its liability hereunder.
2.4 Obligations Unconditional. The obligations of ▇▇▇▇▇▇▇
and the ▇▇▇▇▇▇▇ Members hereunder are absolute and unconditional, irrespective
of the genuineness, validity, regularity or enforceability of the Operating
Agreement or any other Transaction Document, or any other agreement or
instrument referred to therein, or any substitution, release or exchange of any
other guarantee of or security for the Managing Member Interests, and, to the
fullest extent permitted by applicable law, irrespective of any other
circumstance whatsoever (including, without limitation, personal defenses of the
Company, ▇▇▇▇▇▇▇, any ▇▇▇▇▇▇▇ Member or any other Person) which might otherwise
constitute a legal or equitable discharge or defense of a surety, ▇▇▇▇▇▇▇ or the
▇▇▇▇▇▇▇ Members, it being the intent of this Section 2 that the obligations of
▇▇▇▇▇▇▇ and the ▇▇▇▇▇▇▇ Members hereunder shall be absolute and unconditional
under any and all circumstances (subject to the conditions described herein).
This is an assurance of payment and not of collection and provided a Put Event
has occurred, upon the
4
failure of ▇▇▇▇▇▇▇ or the ▇▇▇▇▇▇▇ Member to close the Put Purchase or any other
default in respect of the Put Purchase, RECP may, at its option, proceed
directly and at once, without notice, against ▇▇▇▇▇▇▇ and the ▇▇▇▇▇▇▇ Members
and recover the full amount of the liability hereunder or any portion thereof,
without proceeding against any other person, selling or otherwise disposing of
the Managing Member Interests. Without limiting the generality of the foregoing,
it is agreed that the occurrence of any one or more of the following shall not
alter or impair the liability of ▇▇▇▇▇▇▇ and the ▇▇▇▇▇▇▇ Members hereunder,
which shall remain absolute and unconditional as described above:
(a) at any time or from time to time, without
notice to ▇▇▇▇▇▇▇ or the ▇▇▇▇▇▇▇ Members, the time for any performance of or
compliance with the Put Purchase shall be extended, or such performance or
compliance shall be waived, or any obligation of the Company or any other party
under the Operating Agreement or any other Transaction Document shall be
renewed, settled, compromised or released, by operation of law or otherwise;
(b) subject to the provisions hereof expressly
contemplating such circumstances, any bankruptcy, insolvency, reorganization or
similar proceeding affecting any of the Companies or any Maguire Member, or the
release or discharge of any obligation of any of the Companies, any Maguire
Member or any such other Person as a result of any such proceeding;
(c) any of the acts required or contemplated in
any of the provisions of the Operating Agreement or any other Transaction
Document or any other agreement or instrument referred therein shall be
performed or omitted;
(d) a Trigger Event shall occur, or the Managing
Member Interests shall be modified, supplemented or amended in any respect, or
any right under the Operating Agreement or any other Transaction Document or any
other agreement or instrument referred to therein shall be amended, waived or
modified or the Operating Agreement or any other Transaction Document shall have
been amended or modified; or
(e) the Managing Member Interests shall be
determined to be void or voidable or shall be subordinated to the claims of any
Person, or any provision of applicable law or regulation or any order of any
governmental authority purports to prohibit the payment of any amounts payable
by the Company or any ▇▇▇▇▇▇▇ Member under the Operating Agreement or any other
Transaction Document or any currency controls are imposed in respect thereof.
2.5 Reinstatement. The obligations of ▇▇▇▇▇▇▇ and the
▇▇▇▇▇▇▇ Members under this Agreement shall be automatically reinstated if and to
the extent that for any reason any payment by or on behalf of any Person in
respect of the Put Purchase is rescinded or must be otherwise restored, whether
as a result of any proceedings in bankruptcy, insolvency or reorganization or
otherwise, and ▇▇▇▇▇▇▇ and the ▇▇▇▇▇▇▇ Members specifically agree that they will
jointly and severally pay to RECP or its assigns or successors in interest on
demand the amount of all reasonable out-of-pocket losses, liabilities, costs and
expenses (including, without limitation, fees of counsel) incurred by RECP in
connection with such rescission or restoration, including any such losses,
liabilities, costs and expenses in defending against any claim alleging that
such payment constituted a preference, fraudulent transfer or similar payment
under any bankruptcy, insolvency or similar law.
5
2.6 Certain Additional Waivers. Without limiting the
generality of any other provision of this Agreement, ▇▇▇▇▇▇▇ and the ▇▇▇▇▇▇▇
Members hereby specifically waive (a) promptness, diligence and any notice with
respect to any obligations under this Section 2; (b) any requirement that RECP
or any other Person exhaust any right or take any action against the Company,
any Maguire Member or any other Person; (c) any defense arising by reason of any
claim or defense based upon any waiver or election of remedies by RECP; (d) any
duty on the part of any of the Companies or RECP to disclose to ▇▇▇▇▇▇▇ any
matter, fact or thing relating to the business, operation or condition of the
Companies or any other party to any of the Operating Agreement or any other
Transaction Document or their assets, now known or hereafter known by any of the
Companies or RECP; and (e) any requirement that the Company or RECP or any other
Person file any claim relating to the Managing Member Interests or Managing
Member Return in the event that any of the Companies becomes subject to a
bankruptcy, reorganization, insolvency or similar proceeding.
2.7 Subordination. From and after the occurrence of a Put
Event, any obligations of the Companies to ▇▇▇▇▇▇▇, the ▇▇▇▇▇▇▇ Members, or any
of their Affiliates now or hereafter existing, shall be subordinated to the Put
Purchase. Such obligations of the Companies to ▇▇▇▇▇▇▇ and the ▇▇▇▇▇▇▇ Members
or their Affiliates shall, after the delivery of any Put Notice, be enforced and
performance received by ▇▇▇▇▇▇▇ or the ▇▇▇▇▇▇▇ Members as trustee for RECP and
the proceeds thereof shall be paid over to RECP on account of the Put Purchase,
provided that, subject to Section 2.10 herein, RECP delivers the Managing Member
Interests to ▇▇▇▇▇▇▇ or the ▇▇▇▇▇▇▇ Members or their designee upon payment of
the Purchase Price. In addition, ▇▇▇▇▇▇▇ or the ▇▇▇▇▇▇▇ Members, on behalf of
themselves and each of their Affiliates, hereby agree not to exercise any rights
each may have (x) for subrogation, indemnity, reimbursement or contribution
against the Companies or (y) to enforce any security over assets of the
Companies for amounts paid by ▇▇▇▇▇▇▇ pursuant to this Agreement. If any amount
shall be paid to ▇▇▇▇▇▇▇ and/or the ▇▇▇▇▇▇▇ Members in violation of the
preceding sentence, such amount shall be held in trust for the benefit of RECP
and shall forthwith be paid to RECP, to be credited and applied to the Purchase
Price.
2.8 Representations and Warranties of ▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇
and each of the ▇▇▇▇▇▇▇ Members hereby represent and warrant to RECP, jointly
and severally, that as of the date hereof:
(a) Each has full power and authority to make
this Agreement valid and binding upon such party, enforceable in accordance with
its terms;
(b) neither the execution or delivery of this
Agreement (i) violates any law, regulation, order, writ, judgment, injunction,
decree or permit applicable to it, (ii) violates or materially conflicts with
its Organizational Documents and contractual provisions of, or causes an event
of default under, any indenture, loan agreement, mortgage, deed of trust,
contract or other agreement or instrument to which it or any of the Companies is
a party or by which it may be bound, or (iii) results in or requires the
creation of any lien, security interest, or other charge or encumbrance upon its
properties in favor of a party other than RECP, pursuant to an agreement binding
on such party;
(c) no consent, approval, authorization or order
of, or filing, registration or qualification with, any court or governmental
authority or other Person is required in connection with the execution, delivery
or performance by it of this Agreement; and
6
(d) there are no actions, suits or legal,
equitable, arbitration or administrative proceedings, pending or, to the
knowledge of such party threatened, against ▇▇▇▇▇▇▇ or any of the ▇▇▇▇▇▇▇
Members which, if adversely determined, would have a material adverse effect on
the financial condition of ▇▇▇▇▇▇▇ or the ▇▇▇▇▇▇▇ Members or would affect the
legality, validity or enforceability against any of them of this Agreement or
their ability to perform his obligations under this Agreement.
2.9 Set-Off. Any amount that ▇▇▇▇▇▇▇ or the ▇▇▇▇▇▇▇
Members are obligated to pay or deliver under this Agreement shall be paid or
delivered without set-off, deduction or counterclaim. In addition to any rights
now or hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, if ▇▇▇▇▇▇▇ or the ▇▇▇▇▇▇▇ Members are obligated
to make a payment under this Agreement, RECP is hereby authorized at any time
and from time to time, without presentment, demand, protest or other notice of
any kind including, without limitation, under the Act (all of which rights being
hereby expressly waived), to set-off and to appropriate and apply any and all
deposits (general or special) and any other indebtedness at any time held or
owing by RECP, (including, without limitation, branches, agencies or Affiliates
of RECP wherever located) to or for the credit or the account of ▇▇▇▇▇▇▇ or the
▇▇▇▇▇▇▇ Members against the obligations and liabilities of ▇▇▇▇▇▇▇ or the
▇▇▇▇▇▇▇ Members to RECP hereunder, irrespective of whether RECP shall have made
any demand hereunder, and any such set-off shall be deemed to have been made
immediately upon the occurrence of a Put Event even though such charge is made
or entered on the books of RECP subsequent thereto.
2.10 Loan Documents. Notwithstanding anything herein to
the contrary, the Transfer of the Managing Member Interests and the consummation
of the Put Purchase may not occur unless and until the Company and its
Subsidiaries shall have complied with any and all terms of the Loan Documents in
connection with the Transfer of the Managing Member Interest and provided that
such Transfer shall not result in an Event of Default or Event of Acceleration
or create recourse liability to RECP or any of its Affiliates under the Loan
Documents. If the Transfer of the Managing Member Interests pursuant to the Put
Purchase cannot occur because of restrictions in the Loan Documents, then
▇▇▇▇▇▇▇ and the ▇▇▇▇▇▇▇ Members, jointly and severally, shall immediately pay to
RECP, upon demand, a cash amount equal to the Purchase Price (the "Put
Liquidated Damages"). Payment in cash of the Put Liquidated Damages (plus any
interest thereon) shall constitute a cure of any Trigger Event by ▇▇▇▇▇▇▇
Members under the Operating Agreement. It is agreed that the Put Liquidated
Damages constitute liquidated damages, and not a penalty, it being expressly
acknowledged and agreed that RECP's actual damages in the event that ▇▇▇▇▇▇▇ and
the ▇▇▇▇▇▇▇ Members cannot consummate the Put Purchase would be impossible to
calculate. If ▇▇▇▇▇▇▇ and the ▇▇▇▇▇▇▇ Members do not pay the Put Liquidated
Damages on the date of demand, interest shall accrue on the Put Liquidated
Damages at the rate of 25% per annum (compounded monthly). At such time after
the payment of the Put Liquidated Damages (together with any interest thereon)
that effecting the Transfer of the Managing Member Interests to the ▇▇▇▇▇▇▇
Members would not result in an Event of Default or Event of Acceleration or
create recourse liability to RECP or any of its Affiliates under the Loan
Documents, or any of them and all conditions to make such Transfer (including,
without limitation, any obligation to repay any or all of the New Subordinated
Debt or the Existing Mortgage Debt) have been completed, RECP shall Transfer the
Managing Member Interests to ▇▇▇▇▇▇▇ or the ▇▇▇▇▇▇▇ Members or their designee as
described in Section 2.2(a) above for no additional consideration.
7
ARTICLE III
CALL OPTION
3.1 Call Option.
(a) At any time no later than 6 months prior to
the third anniversary of the Effective Date (the "Option Termination Date"), the
▇▇▇▇▇▇▇ Members or either of them may deliver written notice to RECP (the "Call
Notice"), on behalf of themselves or the Company, that they elect to purchase
all but not less than all of the Managing Member Interests (including for the
purposes of this Section 3, any portion thereof assigned or Transferred by RECP
to any other Person) or that the Company will redeem all but not less than all
of the Managing Member Interests (the "Call Transaction") for cash on the date
specified in the Call Notice (the "Call Date"), which Call Date shall not be
more than four months after the date of the Call Notice, provided that in no
event shall the Call Date be less than three months prior to the Option
Termination Date or the Extended Option Termination Date, as the case may be.
RECP will have no obligation to contribute or loan funds to the Company in
connection with effecting a Call Transaction, but shall cooperate reasonably and
in good faith, but at no cost to RECP and without incurring any liability, with
the effecting of a closing of such transaction (the ▇▇▇▇▇▇▇ Members' right to
effect or cause a Call Transaction shall hereinafter be referred to as the "Call
Option"). The Price payable for the Managing Member Interests upon the
consummation of the Call Option shall be as described in Section 3.3.
(b) On or before the date that is 90 days prior
to the last date on which the Call Option may be exercised, the ▇▇▇▇▇▇▇ Members
or either of them may deliver written notice (an "Extension Notice") to RECP, on
behalf of themselves or the Company, that they desire to extend the Option
Termination Date by an additional 12 months (the "Extended Option Termination
Date") subject to the satisfaction, as of such date (solely with respect to
(ii), (iii) and (iv) below) and as of the Option Termination Date, of the
following conditions:
(i) an extension of the term of the New
Subordinated Debt has been obtained for no less than one year;
(ii) no Event of Default or Event of
Acceleration has occurred and is continuing under the terms of the Existing
Mortgage Debt, the New Subordinated Debt or any other material agreement (i.e.,
any contract or Space Lease which involves a payment of over $250,000) or any
Major Lease (other than defaults caused by the act or omission of RECP that are
not a Performance Default);
(iii) no event causing a Trigger Event or
▇▇▇▇▇▇▇ Event of Default (as defined below) has occurred and is continuing;
(iv) RECP has received in cash a
cumulative compounded monthly (to the extent not paid on a monthly basis) return
of not less than 12% per annum on the remainder of the RECP Capital
Contributions after the return to RECP of the Equity Reserve; provided that in
calculating the 12% per annum return, there shall be excluded any distributions
of the Equity Reserve which may be distributed to RECP;
(v) the ▇▇▇▇▇▇▇ Members shall have
purchased the Supplemental Cap and shall have collaterally assigned it to the
Senior Mezzanine Lender and
8
the Junior Mezzanine Lender in accordance with the terms and conditions of the
New Subordinated Debt;
(vi) the ▇▇▇▇▇▇▇ Members shall have paid
in full all extension fees required under the terms of the New Subordinated Debt
in order to extend the maturity of the New Subordinated Debt for a period of 1
year;
(vii) on or prior to the delivery of the
Extension Notice, the ▇▇▇▇▇▇▇ Members will have deposited in escrow, with a
financial institution designated by RECP and pursuant to an escrow agreement in
form and substance satisfactory to RECP (which shall provide, without
limitation, for the distribution of the Extension Escrow Amount as provided in
Section 3.1(c) below) satisfactory to RECP, an amount equal to the sum of: (1)
the difference between the amount described in paragraph (iv) herein and the
amounts actually received by RECP as distributions from the Company as of date
of the delivery of the Extension Notice; and (2) 150% of the amount required to
(x) purchase the Supplemental Cap as of the date of the Extension Notice (except
that the ▇▇▇▇▇▇▇ Members shall not be required to deposit such 150% of the cost
of the Supplemental Cap if the ▇▇▇▇▇▇▇ Members provide evidence to RECP that
they have purchased the Supplemental Cap on or before the date of delivery of
such Extension Notice) and (y) the corresponding extension fees, as described in
paragraphs (v) and (vi) herein (such aggregate amount, the "Extension Escrow
Amount"). RECP's determination of the Extension Escrow Amount shall be binding
on the parties absent manifest error. Extension Escrow Amounts shall be released
as determined by RECP in order to permit satisfaction of the conditions set
forth in clauses (iv), (v) and (vi) on or before the Option Termination Date. In
addition, on the date of the delivery of the Extension Notice, the ▇▇▇▇▇▇▇
Members will provide RECP with the documentation evidencing the deposit of the
amounts in escrow as provided herein (including, without limitation, the escrow
agreement pursuant to which such funds are held in escrow, provided that RECP
shall cooperate in good faith in approving the escrow agreement) and documenting
the calculation of the amounts deposited in escrow; and
(viii) receipt of certificates from the
▇▇▇▇▇▇▇ Members, in form and substance satisfactory to RECP, confirming that all
the conditions set forth in clauses (ii) (iii), (vi) and (vii) above have been
satisfied as of the date of the Extension Notice and that all conditions set
forth in clauses (ii) through (vi) have been satisfied as of the Option
Termination Date.
If all of the foregoing conditions have been satisfied on the
date set forth above, the period for exercise of the Call Option shall be
extended from the Option Termination Date to the Extended Option Termination
Date. The period from the Effective Date through the Option Termination Date, as
the same may be so extended shall hereinafter be referred to as the "Redemption
Period". For the avoidance of doubt, any reference to the "lapse" of the Call
Option in this Agreement shall refer to the time at which the Call Option can no
longer be exercised or consummated, as the case may be.
(c) If at any time the Call Option is in effect
the ▇▇▇▇▇▇▇ Members provide RECP with the Call Notice but do not consummate the
Call Transaction on the Call Date, then, as of the close of business (New York
City time) on the Call Date, (i) the ▇▇▇▇▇▇▇ Members will on demand pay all the
costs and expenses incurred by RECP in connection thereof; (ii) the Call Option
shall, automatically and without any further action, lapse; (iii) a Trigger
Event shall be deemed to have occurred; and (iv) any Extension Escrow Amount
shall automatically, and without any further action, be transferred to RECP and
shall be deemed a
9
distribution in respect of its Managing Member Interest, provided, however, that
the ▇▇▇▇▇▇▇ Members will have a one time right to delay the Call Date by no more
than 30 days (provided that the Call Date shall in no event be later than the
last date on which the Call Transaction could be closed as described in Section
3.1(a) above.
(d) Notwithstanding the provisions of Section
3.1(a) above, in the event: (i)(x) the ▇▇▇▇▇▇▇ Members or any of their
respective Affiliates have breached or are in default in respect of any
representation, warranty or covenant under this Agreement or any Transaction
Document to which they are a party after notice and lapse of any applicable cure
periods if such exist (a "▇▇▇▇▇▇▇ Event of Default"); (y) such ▇▇▇▇▇▇▇ Event of
Default does not result in an Event of Default or Event of Acceleration under
any of the Loan Documents; and (z) RECP notifies the ▇▇▇▇▇▇▇ Members of such
▇▇▇▇▇▇▇ Event of Default; or (ii) the death or Disability of ▇▇▇▇▇▇▇ and the
failure of the ▇▇▇▇▇▇▇ Members to appoint within 40 days any other person to
perform his duties and responsibilities with respect to the Property, who is
acceptable to RECP at its sole discretion, then subject to Section 3.1(a) above,
the ▇▇▇▇▇▇▇ Members may only exercise their rights and effect a Call Option (if
the right to effect a Call Option has not otherwise lapsed or expired and has
not been suspended as provided herein) so long as the Call Date shall occur no
later than three months after the date of either of the events described in (i)
or (ii) above.
(e) The Call Option shall immediately and
without any further action lapse and be of no further force and effect subject
to the provisions of this subsection (e): (i) upon the occurrence of a ▇▇▇▇▇▇▇
Event of Default that is or causes or otherwise results in an Event of Default
or Event of Acceleration under any Loan Documents; or, (ii) upon the occurrence
of an Event of Default or Event of Acceleration under any of the Loan Documents
as a result of or caused by any actions or inactions of or by the ▇▇▇▇▇▇▇
Members or their respective Affiliates (where the ▇▇▇▇▇▇▇ Members or their
respective Affiliates had the right or obligation under this Agreement or the
Transaction Documents to take actions to prevent such Event of Default), unless
with respect to each of (i) and (ii) the ▇▇▇▇▇▇▇ Members have obtained from the
holder of the relevant Loan Documents under which such Event(s) of Default has
occurred within 10 days of the provision of notice to the ▇▇▇▇▇▇▇ Member of such
Event of Default or Event of Acceleration, a written confirmation that such
Person irrevocably waives such default or irrevocably agrees that it will not
enforce its rights and remedies under such Loan Document with respect to such
default (or if such waiver or agreement is conditional, if the ▇▇▇▇▇▇▇ Members
provide evidence of satisfaction within such same 10 day period of any such
conditions), in which case the Call Option shall automatically and without any
further action be reinstated.
(f) Unless it has previously lapsed or expired,
the Call Option shall immediately and without any further action be suspended
and may not be exercised at any time (the "Suspension Period") during the period
in which: (X) (i) an Event of Default or Event of Acceleration has occurred and
is continuing under any of the Loan Documents that is not attributable to a
▇▇▇▇▇▇▇ Event of Default or any action or inaction of the ▇▇▇▇▇▇▇ Members or
their respective Affiliates (where the ▇▇▇▇▇▇▇ Members or their respective
Affiliates had the right or obligation under this Agreement or the Transaction
Documents to take actions to prevent such Event of Default or Event of
Acceleration) unless either: (1) such Event of Default or Event of Acceleration
has been irrevocably waived in writing by the holder of the relevant Loan
Document, or (2) the holder of the relevant Loan Document confirms in writing
that it irrevocably agrees not to enforce its rights and remedies under such
Loan Document with respect to such Event of Default or Event of Acceleration, in
each case of (1) and (2) above
10
within 10 days of the provision of notice to the Maguire Member of such Event of
Default or Event of Acceleration (or if such waiver or agreement is conditional,
if the ▇▇▇▇▇▇▇ Members provide evidence of satisfaction within such same 10 day
period of any such conditions) or (ii) an Event of Default or Event of
Acceleration has occurred under any of the Loan Documents and such Event of
Default has been cured by RECP; (Y) such Event of Default or Event of
Acceleration was not caused by RECP (it being understood and agreed that a
Performance Default shall not be deemed an Event of Default or Event of
Acceleration caused by RECP) unless (I) the Event of Default is a monetary
default under the Loan Documents that has no cure period (other than upon
maturity), (II) RECP has cured such default pursuant to the emergency provision
of Section 7.3(c) of the Operating Agreement and (III) within 5 Business Days
after the cure by RECP the ▇▇▇▇▇▇▇ Members reimburse RECP for all costs and
expenses incurred in curing such default plus interest thereon at the rate of
25% per annum; and (Z) RECP is attempting during such Suspension Period to sell
or refinance the Property, or any Subsidiary of the Company or otherwise
recapitalize the Company or any Subsidiary of the Company. Notwithstanding the
foregoing, if a written forbearance agreement that provides for the suspension
of remedies by the applicable lender under the relevant Loan Documents is
entered into by the Company or the applicable Subsidiary (the period during
which the exercise of such remedies is suspended being hereinafter referred to
as the "Forbearance Period"), a Suspension Period will be ineffective and will
not renew until the later of the date: (m) that is three (3) months prior to the
expiration of the applicable Forbearance Period; and (n) on which RECP is
attempting to sell or refinance the Property or any Subsidiary of the Company or
otherwise recapitalize the Company or any Subsidiary of the Company (which RECP
will confirm in a notice to the ▇▇▇▇▇▇▇ Members). In no event shall the
occurrence and/or existence of the Suspension Period cause the Option
Termination Date or the Extended Option Termination Date to be extended (as the
case may be).
(g) If an Event of Default or Event of
Acceleration occurs under any of the Loan Documents at a time when the Call
Option has not otherwise lapsed or expired, RECP will (i) in good faith attempt
to obtain from the applicable lender a written forbearance agreement in form and
substance reasonably satisfactory to RECP; and (ii) to the extent the ▇▇▇▇▇▇▇
Members are unaware of such Event of Default or Event of Acceleration, give the
▇▇▇▇▇▇▇ Members notice of such Event of Default or Event of Acceleration. If
RECP is unsuccessful in obtaining such a forbearance agreement from the
applicable lender within 15 Business Days of the occurrence of such Event of
Default or Event of Acceleration, the ▇▇▇▇▇▇▇ Members will be given an
opportunity, for a period of 15 Business Days, to obtain such a forbearance
agreement (in form and substance reasonably satisfactory to RECP) from such
lenders. It will be reasonable for RECP not to approve a forbearance agreement
which (x) contemplates any economic change to the Existing Mortgage Loan or the
New Subordinated Debt which has an adverse effect on RECP, including, without
limitation, the requirement that default or penalty interest be paid during the
Forbearance Period, unless it is paid or deposited in escrow with the Company by
the ▇▇▇▇▇▇▇ Members at the time of obtaining such forbearance agreement, or (y)
requires any adverse economic change to RECP's equity position.
3.2 Final Redemption. At such time that the Managing
Member Return shall have been paid to RECP in full (whether as a result of a
redemption or an acquisition of the RECP Investment as provided herein or as a
result of payment of Available Cash as provided in Section 10.1 of the Operating
Agreement), RECP shall for all purposes cease to be a Member of the Company and
have any Membership Interest in or rights or obligations (including, without
limitation, any of its obligations as a Managing Member) with respect to the
Company. The
11
redeemed interest shall be conveyed to ▇▇▇▇▇▇▇, the ▇▇▇▇▇▇▇ Members or their
designee or redeemed by the Company in which case RECP will have no further
rights, interest or obligation under this Agreement or in the Company or any of
its Subsidiaries or any assets thereof.
3.3 Mechanics of Redemption. Upon the exercise of the
Call Option, the Company or the ▇▇▇▇▇▇▇ Members, as the case may be, shall pay
RECP, by wire transfer of immediately available funds, the Managing Member
Return, in consideration for an assignment to the Company or the ▇▇▇▇▇▇▇
Members, as the case may be, of all of the Membership Interests of RECP in the
Company which shall be evidenced by a customary assignment document. RECP shall
deliver to ▇▇▇▇▇▇▇ a certificate, certificates or any other documentation
evidencing transfer of the Membership Interest, in form ready for transfer, free
of any Liens or claims of third parties except as caused by actions or
agreements of the ▇▇▇▇▇▇▇ Members or their Affiliates. By delivering such
documentation, RECP shall be deemed to represent and warrant to the Company or
the ▇▇▇▇▇▇▇ Members that RECP is the record and beneficial owner of and has good
and valid title to the Membership Interest being transferred and that such
Membership Interests are free and clear of any Liens and have not been
transferred (and no rights with respect to such Membership Interests were
transferred or granted) by RECP to any party.
3.4 Loan Documents. Notwithstanding anything herein to
the contrary, the Call Option may not be exercised and the Call Transaction may
not occur unless and until the Company and its Subsidiaries will have complied
with any and all terms of the Loan Documents (including, without limitation, any
obligation to repay any portion of the New Subordinated Debt or the Existing
Mortgage Debt) in connection with the Transfer of the Managing Member Interests
and provided that such Transfer shall not constitute an Event of Default or
Event of Acceleration or create recourse liability to RECP or any of its
Affiliates, under the Loan Documents or any of them.
ARTICLE IV
MISCELLANEOUS
4.1 Expenses. ▇▇▇▇▇▇▇ agrees to pay on demand all
out-of-pocket expenses (including the reasonable fees and expenses of RECP's
attorneys) in any way relating to the enforcement or protection of the rights of
RECP (with its successors and assigns) of this Agreement. Upon such demand,
▇▇▇▇▇▇▇ shall have three days to pay such expenses. If ▇▇▇▇▇▇▇ does not pay such
expenses within three days of such demand, interest shall accrue thereon at a
rate of 25% per annum (compounded monthly), not to exceed the highest rate
allowed by law.
4.2 No Waiver; Cumulative Rights. No failure on the part
of RECP to exercise, and no delay in exercising, any right, remedy, or power
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, or power by RECP hereunder preclude any other or
future exercise of any right, remedy, or power by RECP. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law or in
equity.
4.3 Injunctive Relief. Each of the parties acknowledges
and agrees that if any provision of Sections 2 or 3 herein is not complied with,
the other party will immediately and irreparably be harmed, will not have an
adequate remedy at law and will be entitled to a
12
decree for specific performance in any court or judicial body having
jurisdiction over such claim, without the necessity of showing any actual damage
or posting any bond or furnishing any other security, and without having to
pursue any arbitration as provided below.
4.4 Assignment. This Agreement shall be binding upon and
inure to the benefit of each of the parties hereto and the parties' transferees,
successors and assigns under the Operating Agreement and the other Transaction
Documents. ▇▇▇▇▇▇▇ and the ▇▇▇▇▇▇▇ Members may not assign, transfer or delegate
their rights, interests or obligations, in whole or in part, under this
Agreement to any other Person, and any purported assignment or delegation hereof
in violation of the foregoing shall be null and void. Subject to the foregoing,
without limiting the effect of specific references in any provision of this
agreement, all references herein to ▇▇▇▇▇▇▇ shall be deemed to include the
respective heirs, executors, administrators, legal representatives, successors
and permitted assigns, all of whom shall be bound and benefit by the provisions
of this Agreement. The successors and permitted assigns of the parties shall
include, without limitation, their respective receivers, trustees or
debtors-in-possession.
4.5 Headings and Captions. All headings and captions
contained in this Agreement are inserted for convenience only and shall not be
deemed a part of this Agreement.
4.6 Variance of Pronouns. All pronouns and all variations
thereof shall be deemed to refer to the masculine, feminine or neuter, singular
or plural, as the identity of the person or entity may require.
4.7 Counterparts. This agreement may be executed in two
or more counterparts, each of which shall constitute an original and all of
which, when taken together, shall constitute one agreement.
4.8 Governing Law. This agreement shall be governed by
and construed in accordance with the laws of the State of New York, without
regard to conflict of law provisions thereof.
4.9 Consent to Jurisdiction. To the fullest extent
permitted by law, each of the parties hereto hereby irrevocably consents and
agrees, for the benefit of each party, that any legal action, suit or proceeding
against it with respect to its obligations, liabilities or any other matter
under or arising out of or in connection with this Agreement, and with respect
to the enforcement, modification, vacation or correction of an award rendered in
an arbitration proceeding, shall be brought in any city, state or federal court
located in the Borough of Manhattan, The City of New York (a "New York Court"),
and hereby irrevocably accepts and submits to the jurisdiction of each such New
York Court with respect to any such action, suit or proceeding. Each party
hereto also hereby irrevocably consents and agrees, for the benefit of each
other party, that any legal action, suit or proceeding against it shall be
brought in any New York Court, and hereby irrevocably accepts and submits to the
exclusive jurisdiction of each such New York Court with respect to any such
action, suit or proceeding. Each party hereto waives any objection which it may
now or hereafter have to the laying of venue of any of the aforesaid actions,
suits or proceedings brought in any such New York Court and hereby further
waives and agrees not to plead or claim in any such New York Court that any such
action, suit or proceeding brought therein has been brought in an inconvenient
forum. Each party agrees that (i) to the fullest extent permitted by law,
service of process may be effectuated hereinafter by mailing a copy of the
summons and complaint or other pleading by certified mail, return
13
receipt requested, at its address set forth above and (ii) all notices that are
required to be given hereunder may be given by the attorneys for the respective
parties.
4.10 No Third Party Beneficiaries. Except as expressly
stated herein, this Agreement is not intended and shall not be construed as
granting any rights, benefits or privileges to any Person not a party to this
Agreement.
4.11 Construction of Documents. The parties hereto
acknowledge that they were represented by separate and independent counsel in
connection with the review, negotiation and drafting of this Agreement and that
this Agreement shall not be subject to the principle of construing its meaning
against the party that drafted same.
4.12 Effectiveness; Termination. The obligations of
▇▇▇▇▇▇▇, the ▇▇▇▇▇▇▇ Members and RECP under this Agreement shall terminate upon
the indefeasible payment and satisfaction in full of the Managing Member Return.
This Agreement shall become effective with respect to ▇▇▇▇▇▇▇, the ▇▇▇▇▇▇▇
Members and RECP upon its execution by ▇▇▇▇▇▇▇, the ▇▇▇▇▇▇▇ Members and RECP and
except as otherwise provided herein shall continue in full force and effect and
may not be terminated or otherwise revoked. If, notwithstanding the foregoing,
any party shall have any right under applicable law to terminate or revoke this
Agreement, such party agrees that such termination or revocation shall not be
effective until a written notice of such revocation or termination, specifically
referring hereto, signed by such party is actually received by the other
parties. Such notice shall not affect the right and power of the parties to
enforce rights arising prior to receipt of the notice.
4.13 Waiver of Jury Trial. EACH PARTY TO THIS AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION (A) ARISING UNDER THIS AGREEMENT, INCLUDING, WITHOUT
LIMITATION, ANY PRESENT OR FUTURE MODIFICATION THEREOF OR (B) IN ANY WAY
CONNECTED OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY
OF THEM WITH RESPECT TO THIS AGREEMENT (AS NOW OR HEREAFTER MODIFIED) OR ANY
OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION
HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION IS NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY
HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO
THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER
OF ANY RIGHT THEY MIGHT OTHERWISE HAVE TO TRIAL BY JURY.
4.14 Validity; Severability. Every provision of this
Agreement is intended to be severable. The invalidity, illegality and
unenforceability of any particular provision of this Agreement in any
jurisdiction shall not affect the other provisions hereof, and this Agreement
shall be construed in all respects as if such invalid, illegal or unenforceable
provision were omitted and the remaining provisions shall remain in full force
and effect and shall be construed without giving effect to the invalid, illegal
or unenforceable provisions.
4.15 Entirety. This Agreement represents the entire
agreement of the parties hereto, and supersedes all prior and contemporaneous
oral, and all prior written, agreements
14
and understandings, if any, including any commitment letters or correspondence
relating to the subject matter hereof.
4.16 Amendments, Waivers and Consents. Neither this
Agreement nor any of the terms hereof may be amended, changed, waived,
discharged or terminated, nor shall any consent or approval of RECP, ▇▇▇▇▇▇▇ or
the ▇▇▇▇▇▇▇ Members be granted hereunder, unless such amendment, change, waiver,
discharge, termination, consent or approval is in writing signed by RECP,
▇▇▇▇▇▇▇ or the ▇▇▇▇▇▇▇ Members. No waiver of any provision hereof by any party
hereto shall be deemed a waiver by any other party nor shall any such waiver by
any party be deemed a continuing waiver of any matter by such party.
4.17 Further Assurances. Each of party agrees to execute,
acknowledge, deliver, file and record such further certificates, amendments,
instruments and documents, and to do all such other acts and things, as may be
required by law or as, may be necessary or advisable to carry out the intent and
purpose of this Agreement.
4.18 Time is of the Essence. Time is of the essence with
respect to any of the matters set forth in this Option Agreement.
4.19 Notices. Unless otherwise specified in this
Agreement, all notices and other communications provided for hereunder shall be
in writing (including by facsimile transmission) and mailed or sent or delivered
at the addresses specified in the preamble hereto. All such notices and
communications shall be given by hand or facsimile transmission; provided that,
in the event that facsimile transmission facilities are not operational, such
notices and communications may be given by mail, but the sender shall use
reasonable efforts to confirm facsimile transmission facilities shall become
operational. All such notices and communications shall be effective when
delivered by hand, or, in the case of mail, upon the earlier of receipt and
confirmation by facsimile transmission as provided below, or, in the case of
facsimile transmission, when sent as addressed as set forth herein and
confirmation of delivery is received. The addresses of each party shall be as
set forth above, provided that each party to this Agreement may, from time to
time, change its notice address, by giving notice to the Company and the other
parties herein in the manner provided in this Section.
[SIGNATURES BEGIN ON THE FOLLOWING PAGE]
15
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the parties as of the date first written above.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
---------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
▇▇▇▇▇▇▇ PARTNERS-HOPE PLACE, LTD.
a California limited partnership
By: ▇▇▇▇▇▇▇ PARTNERS BGHS, LLC
a California limited liability company,
its Managing General Partner
By: ▇▇▇▇▇▇▇ PARTNERS SCS, INC.
a California corporation,
its Manager
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
--------------------------
Name: ________________________
Title: _______________________
▇▇▇▇▇▇▇ PARTNERS BGHS, LLC
a California limited liability company
By: ▇▇▇▇▇▇▇ PARTNERS SCS, INC.
a California corporation,
its Manager
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
-------------------------
Name: _______________________
Title: ______________________
16
RECP LIBRARY LLC,
a Delaware limited liability company
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Treasurer
17
[FIRST AMERICAN LOGO] 2149852-21, JQ, DM - MARCH 22, 2002
PROFORMA ALTA EXTENDED OWNERS POLICY - 1992
EXHIBIT H
FILE NO.: LIBRARY TOWER, LOS ANGELES, CA POLICY NO. 2149852-21
AMOUNT OF INSURANCE: $362,000,000.00 PREMIUM: $TO BE DETERMINED
DATE OF POLICY: DATE AND TIME OF CLOSING
1. NAME OF INSURED:
LIBRARY SQUARE ASSOCIATES, LLC, A DELAWARE LIMITED LIABILITY COMPANY AND
COLUMN FINANCIAL, INC. AND ITS SUCCESSORS AND/OR ASSIGNS AS SENIOR
MEZZANINE LOAN LENDER AS ITS INTEREST MAY APPEAR, AND COLUMN FINANCIAL,
INC. AND ITS SUCCESSORS AND/OR ASSIGNS AS JUNIOR MEZZANINE LOAN LENDER AS
ITS INTERESTS MAY APPEAR.
2. THE ESTATE OR INTEREST IN THE LAND WHICH IS COVERED BY THIS POLICY IS:
FEE AS TO THE LIBRARY TOWER PARCELS DESCRIBED HEREIN AS PARCELS 1, 2, 3, 4,
8 AND 9 AND FEE AS TO THE GARAGE PLAZA PARCEL DESCRIBED HEREIN AS PARCEL 5
AND AN EASEMENT AS TO THE LIBRARY SERVICE DRIVE PARCEL DESCRIBED HEREIN AS
PARCEL 6 AND AN EASEMENT AS TO PARCELS 7, 10, 11, AND A LICENSE AS TO
PARCEL 12.
3. TITLE TO THE STATE OR INTEREST IN THE LAND IS VESTED IN:
LIBRARY SQUARE ASSOCIATES, LLC, A DELAWARE LIMITED LIABILITY COMPANY.
4. THE LAND REFERRED TO IN THIS POLICY IS SITUATED IN THE STATE OF CALIFORNIA,
COUNTY OF LOS ANGELES, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1:
THAT PARCEL OF LAND IN THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES,
STATE OF CALIFORNIA CONSISTING OF A PORTION OF ▇▇▇ ▇, ▇▇▇▇▇ "▇" ▇▇ ▇▇▇ ▇▇▇▇
TRACT, AS PER MAP FILED IN BOOK 1, PAGE 489 OF MISCELLANEOUS RECORDS AND A
PORTION OF ▇▇▇▇ ▇▇, ▇▇ ▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ 108 OF THE BELLEVUE TERRACE TRACT
FILED IN BOOK 2, PAGE 585 OF MISCELLANEOUS RECORDS OF SAID COUNTY AND A
PORTION OF THE LANDS DESIGNATED "BELLEVUE TERRACE" ON THE MAP OF SAID
BELLEVUE TERRACE TRACT, TOGETHER WITH A PORTION OF HOPE STREET AS SHOWN ON
MAP OF PARCEL MAP L.A. NO 1896 FILED IN BOOK 24, PAGE 21 OF PARCEL MAPS AND
THAT PORTION CREATED BY INSTRUMENT NO. 82-465394 TOGETHER WITH THAT PORTION
OF 5TH STREET FORMERLY BEING PARTS OF LOTS 11 AND 12, BLOCK 108, OF THE
SAID BELLEVUE TERRACE TRACT AND BEING CREATED BY CITY ENGINEER'S DEED C.E.
2-64, ORDINANCE NO. 30,973 N.S. ORDINANCE NO. 63,630, ORDINANCE NO. 160,287
RECORDED ON APRIL 11, 1986 AS INSTRUMENT NO. 86-451366, RECORDED IN VOLUME
24, PAGE ▇ ▇▇ ▇▇▇▇▇▇ VACATION MAPS IN THE OFFICE OF THE CITY ENGINEER OF
THE CITY OF LOS ANGELES, AND THAT PORTION OF AN ALLEY (12 FEET WIDE) PER
CITY ENGINEER'S DEED C.E. 14-367, 368 AND RECORDED IN BOOK 4856, PAGE 317
OF DEEDS AND RECORDED IN BOOK 4871, PAGE 216 OF DEEDS RECORDS OF SAID
COUNTY ALL BEING RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY AND ALL BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE NORTHEASTERLY LINE OF SAID 5TH STREET
(79 FEET WIDE) WITH THE NORTHWESTERLY LINE OF SAID HOPE STREET (83 FEET
WIDE) AS SAID
1
[FIRST AMERICAN LOGO] 2149852-21, JQ. DM-MARCH 22, 2002
PROFORMA ALTA EXTENDED OWNERS POLICY - 1992
INTERSECTION IS SHOWN ON SAID STREET VACATION MAP; THENCE NORTHEASTERLY ALONG
SAID NORTHWESTERLY LINE TO A POINT OF CUSP OF A TANGENT CURVE CONCAVE EASTERLY
HAVING A RADIUS OF 60 FEET AS SHOWN ON SAID STREET VACATION MAP; THENCE
SOUTHEASTERLY ALONG SAID CURVE TO A REVERSE CURVE AS SHOWN ON SAID LAST
MENTIONED MAP AS BEING CONCAVE SOUTHWESTERLY HAVING A RADIUS OF 40 FEET; THENCE
SOUTHEASTERLY ALONG SAID CURVE TO A POINT OF TANGENCY WITH A LINE PARALLEL WITH
DISTANT SOUTHWESTERLY 95 FEET MEASURED AT RIGHT ANGLES FROM THE NORTHEASTERLY
LINE OF LOT 7 IN BLOCK "M" OF SAID ▇▇▇▇ TRACT; THENCE SOUTHEASTERLY ALONG SAID
LINE TO THE SOUTHEASTERLY LINE OF SAID 12 FOOT WIDE ALLEY; THENCE SOUTHWESTERLY
ALONG SAID SOUTHEASTERLY LINE TO SAID ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇; THENCE
NORTHWESTERLY ALONG SAID LINE TO THE TRUE POINT OF BEGINNING.
EXCEPT THEREFROM ALL URANIUM, AND OTHER FISSIONABLE MATERIAL, ALL OIL, GAS,
PETROLEUM, ASPHALTUM AND OTHER HYDROCARBON SUBSTANCES AND OTHER MINERALS AND
MINERAL ORES OF EVERY KIND AND CHARACTER WHETHER SIMILAR TO THESE HEREIN
SPECIFIED OR NOT, WITHIN OR UNDERLYING OR WHICH MAY BE PRODUCED FROM THAT
PORTION OF THE FOLLOWING DESCRIBED REAL PROPERTY WHICH LIES BELOW A PLANE
PARALLEL TO AND 500 FEET BELOW THE PRESENT SURFACE OF SAID LAND, WITHOUT
HOWEVER, THE RIGHT TO ENTER UPON THE SURFACE OR SUBSURFACE TO A DEPTH OF 500
FEET BELOW SAID SURFACE, FOR ANY PURPOSE WHATSOEVER, AS GRANTED BY SOUTHERN
CALIFORNIA EDISON COMPANY, A CORPORATION TO ASSOCIATED SOUTHERN INVESTMENT
COMPANY, A CORPORATION, BY DEED RECORDED APRIL 2, 1969 IN BOOK M3194 PAGE 210,
OFFICIAL RECORDS.
ALSO EXCEPT ALL OIL, GAS, PETROLEUM AND OTHER MINERAL OR HYDROCARBON SUBSTANCES
IN AND UNDER OR WHICH MAY BE PRODUCED FROM SAID LAND, TOGETHER WITH THE RIGHT
TO USE THAT PORTION OF SAID LAND WHICH UNDERLIES A PLANE PARALLEL TO AND 500
FEET BELOW THE PRESENT SURFACE OF SAID LAND, FOR THE PURPOSE OF PROSPECTING
FOR, DEVELOPING AND/OR EXTRACTING SAID OIL, GAS, PETROLEUM AND OTHER MINERAL
AND HYDROCARBON SUBSTANCES FROM SAID LAND, BY MEANS OF ▇▇▇▇▇ DRILLED INTO SAID
SURFACE OF SAID LAND FROM DRILL SITES LOCATED IN OTHER LAND, IT BEING EXPRESSLY
UNDERSTOOD AND AGREED THAT SAID EDISON SECURITIES COMPANY, ITS SUCCESSORS AND
ASSIGNS, SHALL HAVE NO RIGHT TO ENTER UPON THE SURFACE OF SAID LAND; OR TO USE
SAID LAND OR ANY PORTION THEREOF, TO SAID ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ANY PURPOSE
WHATSOEVER, AS RESERVED BY EDISON SECURITIES COMPANY, A CORPORATION, IN DEED
RECORDED DECEMBER 27, 1955 AS INSTRUMENT NO. 2602 IN BOOK 49892, PAGE 323,
OFFICIAL RECORDS.
ALSO EXCEPT THEREFROM ALL OIL, GAS AND MINERAL SUBSTANCES TOGETHER WITH THE
RIGHT TO EXTRACT SUCH SUBSTANCES PROVIDED THAT THE SURFACE OPENING OF ANY WELL,
HOLE, SHAFT, OR OTHER MEANS OF REACHING OR REMOVING SUCH SUBSTANCES SHALL NOT
BE LOCATED WITHIN THE BUNKER HILL URBAN RENEWAL PROJECT AREA, AS RECORDED IN
BOOK M-335 PAGE 106, OFFICIAL RECORDS, AND SHALL NOT PENETRATE ANY PART OR
PORTION OF SAID PROJECT AREA WITHIN 500 FEET OF THE SURFACE THEREOF, RESERVED
BY GREATER LOS ANGELES PLANS, INC., A NON-PROFIT CORPORATION IN DEED RECORDED
MAY 16, 1961 AS INSTRUMENT NO. 1598.
PARCEL 2:
THAT PARCEL ▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ OF LOS ANGELES, STATE OF
CALIFORNIA CONSISTING OF A PORTION OF THE LANDS DESIGNATED "BELLEVUE TERRACE"
ON THE MAP OF THE BELLEVUE TERRACE TRACT RECORDED IN BOOK 2, PAGE 585 OF
MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY,
WHICH IS NOW WITHIN ▇▇▇ ▇▇▇▇▇▇ ▇▇▇/▇▇ ▇▇▇▇ ▇▇▇▇▇▇, PORTIONS OF WHICH STREET
WERE ESTABLISHED BY THE CITY OF LOS ANGELES, ORDINANCE NO. 63,630, ORDINANCE
NO. 30.0973 N.S., AND ORDINANCE NO. 160,287 ON FILE IN THE CITY CLERK'S OFFICE
OF SAID CITY AND BY THE DEED OF EASEMENT TO THE CITY BOOK 6413, PAGE 29 OF
DEEDS, RECORDS OF
2
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LOGO] PROFORMA ALTA EXTENDED OWNERS POLICY-1992
SAID COUNTY LYING BELOW A HORIZONTAL PLANE HAVING AN ELEVATION OF 288.00 FEET
(SAID ELEVATION BEING BASED ON THE CITY OF LOS ANGELES BENCH ▇▇▇▇ NO. 12-06690,
HAVING AN ELEVATION OF 295.423 FEET, CITY OF LOS ANGELES 1975 ADJUSTMENT), SAID
PARCEL BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE NORTHWESTERLY LINE OF SAID HOPE STREET (83
FEET WIDE) WITH THE INTERSECTION OF THE NORTHEASTERLY LINE OF SAID 5TH STREET
(79 FEET WIDE) AS SAID INTERSECTION IS SHOWN ON STREET VACATION MAP FILED IN
VOLUME 24, BOOK ▇ ▇▇ ▇▇▇▇▇▇ VACATION MAPS A COPY OF WHICH WAS RECORDED ON APRIL
11, 1986 AS DOCUMENT NO. 86-451366, OFFICIAL RECORDS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY; THENCE SOUTHEASTERLY ALONG SAID NORTHEASTERLY
LINE TO THE SOUTHWESTERLY PROLONGATION OF THE SOUTHEASTERLY LINE OF AN ALLEY (12
FEET WIDE) PER CITY ENGINEER'S DEED C. E. 14-367, 368 AND RECORDED IN BOOK 4856,
PAGE 317 OF DEEDS AND RECORDED IN BOOK 4871, PAGE 216 OF DEEDS RECORDS OF SAID
COUNTY ALL BEING RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY;
THENCE SOUTHWESTERLY ALONG SAID LINE TO A LINE PARALLEL WITH AND DISTANT
SOUTHWESTERLY 10 FEET MEASURED AT RIGHT ANGLES FROM SAID NORTHEASTERLY LINE;
THENCE NORTHWESTERLY ALONG SAID PARALLEL LINE TO THE SOUTHWESTERLY PROLONGATION
OF THE NORTHWESTERLY LINE OF HOPE STREET; THENCE NORTHEASTERLY ALONG SAID
PROLONGATION TO THE POINT OF BEGINNING.
EXCEPT THEREFROM ALL OIL, GAS AND MINERAL SUBSTANCES TOGETHER WITH THE RIGHT TO
EXTRACT SUCH SUBSTANCES PROVIDED THAT THE SURFACE OPENING OF ANY WELL, HOLE,
SHAFT, OR OTHER MEANS OF REACHING OR REMOVING SUCH SUBSTANCES SHALL NOT BE
LOCATED WITHIN THE BUNKER HILL URBAN RENEWAL PROJECT AREA, AS RECORDED IN BOOK
M-335 PAGE 106 OFFICIAL RECORDS, AND SHALL NOT PENETRATE ANY PART OR PORTION OF
SAID PROJECT AREA WITHIN 500 FEET OF THE SURFACE THEREOF, RESERVED BY GREATER
LOS ANGELES PLANS, INC., A NON-PROFIT CORPORATION IN DEED RECORDED MAY 16,
1961 AS INSTRUMENT NO. 1598 OFFICIAL RECORDS.
PARCEL 3:
THAT PARCEL OF LAND IN THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES, STATE OF
CALIFORNIA, CONSISTING OF A PORTION OF THE LANDS DESIGNATED "BELLEVUE TRACT" ON
THE MAP OF BELLEVUE TERRACE TRACT, RECORDED IN BOOK 2 PAGE 585 OF MISCELLANEOUS
RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, WHICH IS NOW
WITHIN ▇▇▇ ▇▇▇▇▇▇ ▇▇▇/▇▇ ▇▇▇▇ ▇▇▇▇▇▇, PORTIONS OF WHICH STREETS WERE ESTABLISHED
BY THE CITY OF LOS ANGELES, ORDINANCE NO. 63,630, ORDINANCE NO. 30,973 N.S. AND
ORDINANCE NO. 160,287 ON FILE IN THE CITY CLERK'S OFFICE OF SAID CITY AND BY THE
DEED OF EASEMENT TO THE CITY OF LOS ANGELES, RECORDED ON DECEMBER 16, 1916 AS
INSTRUMENT NO. 109 IN BOOK 6413 PAGE 29 OF DEEDS, AND QUITCLAIM DEED RECORDED ON
JUNE 21, 1985 AS INSTRUMENT NO. 85-721095, OFFICIAL RECORDS, ALL BEING RECORDED
IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY AND ALL BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE SOUTHWESTERLY PROLONGATION OF THE
NORTHWESTERLY LINE OF SAID HOPE STREET (83 FEET WIDE) AS SHOWN ON PARCEL MAP
L.A. NO. 1896 FILED IN BOOK 24, PAGE 21 OF PARCEL MAPS, RECORDS OF SAID COUNTY,
WITH THE NORTHWESTERLY PROLONGATION OF A LINE PARALLEL WITH AND DISTANT
SOUTHWESTERLY 63 FEET MEASURED AT RIGHT ANGLES FROM THE SOUTHWESTERLY LINE OF
LOT "A" OF THE NORMAL TRACT AS PER MAP FILED IN BOOK 3 PAGE 44 OF MAPS. BEING
RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY; THENCE
SOUTHEASTERLY ALONG SAID PARALLEL LINE TO THE SOUTHWESTERLY PROLONGATION OF THE
SOUTHEASTERLY LINE OF AN ALLEY (12 FEET WIDE) PER CITY ENGINEER'S DEED C. E.
14-367, 368 AND RECORDED IN BOOK 4856, PAGE 317 OF DEEDS AND RECORDED IN BOOK
4871 PAGE 216 OF DEEDS RECORDS OF SAID COUNTY, ALL BEING RECORDED IN THE OFFICE
OF THE COUNTY RECORDER OF SAID COUNTY; THENCE NORTHEASTERLY TO A LINE PARALLEL
WITH AND DISTANT SOUTHWESTERLY 10 FEET MEASURED AT RIGHT ANGLES FROM THE
3
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PROFORMA ALTA EXTENDED OWNERS POLICY-1992
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ (79 FEET WIDE) AS SHOWN ON STREET
VACATION MAP FILED IN VOLUME 24, BOOK ▇ ▇▇ ▇▇▇▇▇▇ VACATION MAPS A COPY OF WHICH
WAS RECORDED ON APRIL 11, 1986 AS DOCUMENT NO. 86-451366, OFFICIAL RECORDS, IN
THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY; THENCE NORTHWESTERLY ALONG
LAST SAID PARALLEL LINE TO THE SOUTHWESTERLY PROLONGATION OF THE NORTHWESTERLY
LINE OF SAID HOPE STREET; THENCE SOUTHWESTERLY ALONG SAID PROLONGATION TO THE
POINT OF BEGINNING.
EXCEPT THEREFROM ALL OIL, GAS AND MINERAL SUBSTANCES TOGETHER WITH THE RIGHT TO
EXTRACT SUCH SUBSTANCES PROVIDED THAT THE SURFACE OPENING OF ANY WELL, HOLE,
SHAFT, OR OTHER MEANS OF REACHING OR REMOVING SUCH SUBSTANCES SHALL NOT BE
LOCATED WITHIN THE BUNKER HILL URBAN RENEWAL PROJECT AREA, AS RECORDED IN BOOK
M-335 PAGE 106 OFFICIAL RECORDS, AND SHALL NOT PENETRATE ANY PART OR PORTION OF
SAID PROJECT AREA WITHIN 500 FEET OF THE SURFACE THEREOF, RESERVED BY GREATER
LOS ANGELES PLANS, INC., A NON-PROFIT CORPORATION IN DEED RECORDED MAY 16,
1961 AS INSTRUMENT NO. 1598 OFFICIAL RECORDS.
PARCEL 4:
THAT PARCEL OF LAND IN THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES, STATE OF
CALIFORNIA, CONSISTING OF A PORTION OF ▇▇▇ ▇, ▇▇▇▇▇ "▇" ▇▇ ▇▇▇ ▇▇▇▇ TRACT, AS
PER MAP FILED IN BOOK 1 PAGE 489 OF MISCELLANEOUS RECORDS, TOGETHER WITH A
PORTION OF HOPE STREET (83 FEET WIDE) AS SHOWN ON MAP OF PARCEL MAP L.A. NO.
1896 FILED IN BOOK 24, PAGE 21 OF PARCEL MAPS AND THAT PORTION CREATED BY
ORDINANCE NO. 160,287 LOCATED BELOW THE ELEVATION PLANE OF 349.00 FEET (1975
ADJUSTMENT) SAID ELEVATION BEING BASED ON THE LOS ANGELES CITY ENGINEER'S DATUM
AS ESTABLISHED JULY 1, 1925, BY ORDINANCE NO. 5222, SAID PARCEL OF LAND BEING
MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THAT CERTAIN CURVE CONCAVE EASTERLY HAVING A
RADIUS OF 60 FEET SAID CURVE IS SHOWN ON STREET VACATION MAP FILED IN VOLUME
24, BOOK ▇ ▇▇ ▇▇▇▇▇▇ VACATION MAPS A COPY OF WHICH WAS RECORDED ON APRIL 11,
1986 AS DOCUMENT NO. 86-451366, OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY WITH A LINE PARALLEL WITH AND DISTANT SOUTHWESTERLY 95
FEET MEASURED AT RIGHT ANGLES TO THE NORTHEASTERLY LINE OF LOT 7 OF SAID ▇▇▇▇
TRACT; THENCE SOUTHEASTERLY ALONG SAID CURVE TO A REVERSE CURVE THEREIN CONCAVE
SOUTHWESTERLY HAVING A RADIUS OF 40 FEET; THENCE SOUTHEASTERLY ALONG SAID
REVERSE CURVE TO A POINT OF TANGENCY WITH SAID PARALLEL LINE; THENCE
NORTHWESTERLY ALONG SAID PARALLEL LINE TO THE POINT OF BEGINNING.
EXCEPT THEREFROM ALL OIL, GAS AND MINERAL SUBSTANCES TOGETHER WITH THE RIGHT TO
EXTRACT SUCH SUBSTANCES PROVIDED THAT THE SURFACE OPENING OF ANY WELL, HOLE,
SHAFT, OR OTHER MEANS OF REACHING OR REMOVING SUCH SUBSTANCES SHALL NOT BE
LOCATED WITHIN THE BUNKER HILL URBAN RENEWAL PROJECT AREA, AS RECORDED IN BOOK
M-335 PAGE 106 OFFICIAL RECORDS, AND SHALL NOT PENETRATE ANY PART OR PORTION OF
SAID PROJECT AREA WITHIN 500 FEET OF THE SURFACE THEREOF, RESERVED BY GREATER
LOS ANGELES PLANS, INC., A NON-PROFIT CORPORATION IN DEED RECORDED MAY 16, 1961
AS INSTRUMENT NO. 1598 OFFICIAL RECORDS.
PARCEL 5: (GARAGE PLAZA PARCEL)
▇▇▇▇ ▇▇, ▇▇, ▇▇, ▇▇ ▇▇▇ ▇▇▇▇▇▇▇ OF ▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇ THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS
SHOWN ON MAP RECORDED IN BOOK 2 PAGE 585, OF MISCELLANEOUS RECORDS, IN THE
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY; PORTION OF THAT CERTAIN LOT KNOWN
AS "BELLEVUE TERRACE" AS SHOWN ON SAID MAP OF THE BELLEVUE TERRACE TRACT; AND
▇▇▇ ▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ SAID CITY, COUNTY AND STATE,
AS SHOWN
4
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PROFORMA ALTA EXTENDED OWNERS POLICY-1992
ON MAP RECORDED IN BOOK 3 PAGE 72 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER
OF SAID COUNTY, DESCRIBED AS A WHOLE AS FOLLOWS:
BEGINNING AT THE MOST NORTHERLY CORNER OF THE LAND DESCRIBED IN THE FINAL DECREE
HAD IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR THE COUNTY OF
LOS ANGELES, CASE NO. 118370, RECORDED MARCH 17, 1925 AS INSTRUMENT NO. 1165, IN
BOOK 3860 PAGE 325 OF OFFICIAL RECORDS OF SAID COUNTY, SAID CORNER BEING A POINT
ON THE SOUTHEASTERLY LINE OF FLOWER STREET, AS SHOWN ON SAID MAP OF THE ▇▇▇
▇▇▇▇▇▇ TRACT, DISTANT THEREON 6.79 FEET NORTHEASTERLY FROM THE MOST WESTERLY
CORNER OF LOT 2 OF SAID LAST MENTIONED TRACT; THENCE ALONG SAID FLOWER STREET,
SOUTH 37 DEGREES 49' 38" WEST 299.78 FEET TO THE MOST WESTERLY CORNER OF SAID
▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ TRACT; THENCE ALONG THE
SOUTHWESTERLY LINE OF SAID LOT 16 AND ITS SOUTHEASTERLY PROLONGATION, SOUTH 52
DEGREES 10' 15" EAST 371.26 FEET TO THE CENTERLINE OF HOPE STREET, 80 FEET WIDE,
AS SHOWN ON THE MAP OF TRACT NO. 9181, IN SAID CITY, COUNTY AND STATE, RECORDED
IN BOOK 184, PAGES 15 AND 16 OF MAPS, IN SAID OFFICE OF THE COUNTY RECORDER:
THENCE ALONG THE NORTHWESTERLY PROLONGATION OF THE NORTHEASTERLY LINE OF LOT 5
OF SAID LAST MENTIONED TRACT AND ALONG SAID NORTHEASTERLY LINE AND ITS
SOUTHEASTERLY PROLONGATION, SOUTH 52 DEGREES 12' 33" EAST 373.18 FEET TO THE
MOST EASTERLY CORNER OF ▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ TRACT, SAID
CORNER BEING A POINT ON THE ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ FEET WIDE;
THENCE ALONG SAID GRAND AVENUE, NORTH 37 DEGREES 50' 48" EAST 299.60 FEET TO THE
MOST SOUTHERLY CORNER OF THE LAND DESCRIBED IN ORDINANCE NO. 41830, NEW SERIES,
OF THE CITY OF LOS ANGELES, PASSED BY THE COUNCIL OF SAID CITY ON MAY 3, 1921,
ON FILE IN THE OFFICE OF THE CLERK OF SAID CITY, SAID MOST SOUTHERLY CORNER
BEING A POINT ON A LINE THAT IS PARALLEL WITH AND 60 FEET SOUTHWESTERLY,
MEASURED ALONG SAID GRAND AVENUE, FROM THE SOUTHEASTERLY PROLONGATION OF THE
NORTHEASTERLY LINE OF SAID ▇▇▇ ▇▇▇▇▇▇ TRACT; THENCE ALONG SAID LAST MENTIONED
PARALLEL LINE, NORTH 52 DEGREES 13' 14" WEST 459.72 FEET TO A POINT ON THAT
CERTAIN COURSE IN THE DEED TO THE CITY OF LOS ANGELES, RECORDED DECEMBER 16,
1916, IN BOOK 6413 PAGE 29 OF DEEDS, IN SAID OFFICE OF THE COUNTY RECORDER,
DESCRIBED IN SAID DEED AS HAVING A BEARING AND DISTANCE OF "SOUTH 39 DEGREES 40'
43" WEST 60 FEET"; THENCE ALONG SAID LAST MENTIONED COURSE SOUTH 39 DEGREES 35'
31" WEST 8.44 FEET TO THE SOUTHWESTERLY TERMINUS THEREOF; THENCE ALONG THE
SOUTHWESTERLY LINE OF SAID DEED AND ITS NORTHWESTERLY PROLONGATION, NORTH 50
DEGREES 24' 29" WEST 119.55 FEET TO THE MOST WESTERLY CORNER OF THE LAND
DESCRIBED IN THE QUITCLAIM DEED TO THE CITY OF LOS ANGELES, RECORDED MARCH 17,
1917 IN BOOK 6453 PAGE 110 OF DEEDS, IN SAID OFFICE OF THE COUNTY RECORDER, SAID
CORNER BEING A POINT IN THE SOUTHEASTERLY LINE OF SAID ▇▇▇ ▇▇▇▇▇▇ TRACT; THENCE
ALONG SAID LAST MENTIONED SOUTHEASTERLY LINE, NORTH 37 DEGREES 49' 38" EAST 4.65
FEET TO THE MOST EASTERLY CORNER OF THE LAND DESCRIBED IN SAID ABOVE MENTIONED
FINAL DECREE HAD IN SUPERIOR COURT CASE NO. 118370, SAID MOST EASTERLY CORNER
BEING A POINT DISTANT 6.55 FEET NORTHEASTERLY, MEASURED ALONG SAID LAST
MENTIONED SOUTHEASTERLY LINE, FROM THE MOST SOUTHERLY ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇ ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇; THENCE ALONG THE NORTHEASTERLY LINE OF THE LAND IN SAID FINAL
DECREE, NORTH 52 DEGREES 01' 07" WEST 165.06 FEET TO THE POINT OF BEGINNING.
EXCEPT THEREFROM THAT PORTION OF SAID FIRST HEREINABOVE DESCRIBED LAND LYING
SOUTHEASTERLY OF THE FOLLOWING DESCRIBED LINE:
BEGINNING AT A POINT IN THAT CERTAIN COURSE DESCRIBED ABOVE AS HAVING A BEARING
AND DISTANCE OF "NORTH 52 DEGREES 13' 14" WEST 459.72 FEET" SAID POINT BEING
DISTANT ALONG SAID COURSE, SOUTH 52 DEGREES 13' 14" EAST 46.35 FEET FROM THE
NORTHWESTERLY TERMINUS THEREOF, SAID POINT BEING ALSO ON THE NORTHEASTERLY
PROLONGATION OF A NORTHWESTERLY FACE OF A PORTION OF THE CENTRAL LIBRARY
BUILDING OF THE CITY OF LOS ANGELES, AS SHOWN ON "EXHIBIT A" ATTACHED TO
DOCUMENT RECORDED ON MAY 29, 1987 AS INSTRUMENT NO. 87-853230 OFFICIAL RECORDS,
IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY; THENCE ALONG SAID
NORTHEASTERLY PROLONGATION AND ALONG SAID NORTHWESTERLY FACE, SOUTH 37 DEGREES
46' 46" WEST 27.26 FEET TO A LINE THAT IS
5
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PROFORMA ALTA EXTENDED OWNERS POLICY - 1992
PARALLEL WITH AND 7.83 FEET NORTHEASTERLY, MEASURED AT RIGHT ANGLES, FROM A
NORTHEASTERLY FACE OF A PORTION OF SAID CENTRAL LIBRARY BUILDING, AS SHOWN ON
SAID "EXHIBIT A"; THENCE ALONG SAID PARALLEL LINE, NORTH 52 DEGREES 13' 14"
WEST 90.19 FEET TO A LINE THAT IS PARALLEL WITH AND 241.00 FEET SOUTHEASTERLY,
MEASURED AT RIGHT ANGLES, FROM SAID HEREINBEFORE DESCRIBED SOUTHEASTERLY LINE
OF FLOWER STREET; THENCE ALONG SAID LAST MENTIONED PARALLEL LINE, SOUTH 37
DEGREES 49' 38" WEST 29.08 FEET; THENCE NORTH 52 DEGREES 10' 22" WEST 10.00
FEET TO A LINE THAT IS PARALLEL WITH AND 231.00 FEET SOUTHEASTERLY, MEASURED AT
RIGHT ANGLES, FROM SAID SOUTHEASTERLY LINE OF FLOWER STREET; THENCE ALONG SAID
LAST MENTIONED PARALLEL LINE, SOUTH 37 DEGREES 49' 38" WEST 167.57 FEET; THENCE
SOUTH 52 DEGREES 10' 22" EAST 10.00 FEET; THENCE SOUTH 37 DEGREES 49' 38" WEST
20.00 FEET; THENCE NORTH 52 DEGREES 10' 22" WEST 10.00 FEET TO SAID LAST
MENTIONED PARALLEL LINE; THENCE ALONG SAID PARALLEL LINE, SOUTH 37 DEGREES 49'
38" WEST 55.50 FEET TO A POINT IN THAT CERTAIN COURSE DESCRIBED ABOVE AS HAVING
A BEARING AND DISTANCE OF "SOUTH 52 DEGREES 10' 15" EAST 371.26 FEET". SUCH
EXCEPTION IS HEREINAFTER CALLED "CENTRAL LIBRARY PARCEL".
ALSO EXCEPT THAT PORTION OF SAID LAND AS DESCRIBED IN THE DEED RECORDED MAY 17,
1990 AS INSTRUMENT NO. 90-902445, OF OFFICIAL RECORDS.
RESERVING FROM THE GARAGE PLAZA PARCEL AN OPEN SPACE EASEMENT FOR LANDSCAPING
AND MAINTENANCE AND REPAIR OF LANDSCAPING IMPROVEMENTS, OVER THAT PORTION OF
THE GARAGE PLAZA PARCEL LYING ABOVE A PLANE PASSING THROUGH POINTS (A), (B) AND
(C) SHOWN ON "EXHIBIT B" ATTACHED TO THE DOCUMENT RECORDED ON MAY 29, 1987 AS
INSTRUMENT NO. 87-853230 OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY RECORDER
OF SAID COUNTY, HAVING ELEVATIONS OF 279.6 FEET, 281.7 FEET AND 287.0 FEET
RESPECTIVELY (SAID ELEVATIONS ARE BASED ON CITY OF LOS ANGELES BENCH ▇▇▇▇ NO.
12-06690, HAVING AN ELEVATION OF 295.20 FEET, WHICH BENCH ▇▇▇▇ HAS A CITY OF
LOS ANGELES 1975 ADJUSTMENT ELEVATION OF 295.423 FEET, BASED ON NATIONAL
GEODETIC VERTICAL DATUM OF 1929), AND ABOVE THE PROJECTIONS OF SAID PLANE SO
FORMED, TO THE EXTERIOR BOUNDARIES OF SAID GARAGE PLAZA PARCEL.
THE GRANTEE OR ITS OWNERS OF ASSIGNS MAY USE PORTIONS OF OPEN SPACE AREA FOR
OUTDOOR DINING AND MAY EXCLUDE NON-PATRONS FROM SUCH OUTDOOR DINING AREA,
SUBJECT TO SUCH DINING AREA BEING MAINTAINED BY GRANTEE. THE LOCATION, SIZE AND
DESIGN OF SUCH AREA SHALL BE MUTUALLY AGREED UPON BY USER AND CITY OF LOS
ANGELES THROUGH ITS LIBRARY COMMISSION.
ALSO RESERVING FROM THE GARAGE PLAZA PARCEL A CONCURRENT NON-EXCLUSIVE EASEMENT
FOR PEDESTRIAN INGRESS AND EGRESS TO AND FROM THE CENTRAL LIBRARY PARCEL OVER
THAT PORTION OF SAID GARAGE PLAZA PARCEL LYING ABOVE SAID PLANE PASSING THROUGH
POINT (A), (B) AND (C) AND ABOVE THE PROJECTIONS OF SAID PLANE SO FORMED, TO
THE EXTERIOR BOUNDARIES OF SAID GARAGE PLAZA PARCEL.
EXCEPTING FROM SAID LAST TWO MENTIONED RESERVATIONS THE FOLLOWING DESCRIBED
PARCEL A AND PARCEL B-1 AND PARCEL B-3 (ALL AS SHOWN ON "EXHIBIT B") AND PARCEL
C (AS SHOWN ON "EXHIBIT D") TO THE DOCUMENT RECORDED ON MAY 29, 1987 AS
INSTRUMENT NO. 87-853230 OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER
OF SAID COUNTY.
PARCEL A (DRIVEWAY TO SUBSURFACE)
BEGINNING AT THE MOST WESTERLY CORNER OF LOT 16 IN BLOCK 103 OF THE BELLEVUE
TERRACE TRACT, IN THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES, STATE OF
CALIFORNIA, AS SHOWN ON MAP RECORDED IN BOOK 2 PAGE 585 OF MISCELLANEOUS
RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY; THENCE
NORTHEASTERLY ALONG THE NORTHWESTERLY LINE OF SAID LOT, A DISTANCE OF 30 FEET;
THENCE SOUTHEASTERLY PARALLEL WITH THE SOUTHWESTERLY LINE OF SAID LOT, A
DISTANCE OF 107 FEET; THENCE SOUTHWESTERLY PARALLEL WITH SAID NORTHWESTERLY
6
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PROFORMA ALTA EXTENDED OWNERS POLICY - 1992
LINE, A DISTANCE OF 30 FEET TO SAID SOUTHWESTERLY LINE; THENCE NORTHWESTERLY
ALONG SAID SOUTHWESTERLY LINE, A DISTANCE OF 107 FEET TO THE POINT OF BEGINNING.
PARCEL B (PEDESTRIAN ACCESS TO AND FROM GARAGE - FOR STAIRCASE, ELEVATOR OR
ESCALATOR, OR ALL THREE TO THE SURFACE) TWO(2) STRUCTURES DESCRIBED AS FOLLOWS:
PARCEL B-1
COMMENCING AT THE MOST WESTERLY CORNER OF LOT 16 IN BLOCK 103 OF THE BELLEVUE
TERRACE TRACT, IN THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES, STATE OF
CALIFORNIA, AS SHOWN ON MAP RECORDED IN BOOK 2 PAGE 585 OF MISCELLANEOUS
RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY; THENCE
NORTHEASTERLY ALONG THE NORTHWESTERLY LINE OF SAID LOT, A DISTANCE OF 30 FEET,
THENCE SOUTHEASTERLY PARALLEL WITH THE SOUTHWESTERLY LINE OF SAID LOT, A
DISTANCE OF 14 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING
SOUTHEASTERLY PARALLEL WITH SAID SOUTHWESTERLY LINE, 19 FEET; THENCE
NORTHEASTERLY PARALLEL WITH SAID NORTHWESTERLY LINE, 22 FEET; THENCE
NORTHWESTERLY PARALLEL WITH SAID SOUTHWESTERLY LINE, 19 FEET; THENCE
SOUTHWESTERLY PARALLEL WITH SAID NORTHWESTERLY LINE, 22 FEET TO THE TRUE POINT
OF BEGINNING.
PARCEL B-3
BEGINNING AT THE SOUTHWESTERLY TERMINUS OF THAT CERTAIN COURSE IN THE GENERAL
SOUTHEASTERLY BOUNDARY OF SAID HEREINABOVE DESCRIBED GARAGE PLAZA PARCEL HAVING
A BEARING AND DISTANCE OF "SOUTH 37 DEGREES 49' 38" WEST 29.08 FEET"; THENCE
CONTINUING ALONG SAID GENERAL SOUTHEASTERLY BOUNDARY, NORTH 52 DEGREES 10[ 22"
WEST 10.00 FEET; THENCE LEAVING SAID BOUNDARY, NORTH 37 DEGREES 49' 38" EAST 16
FEET; THENCE NORTH 52 DEGREES 10' 22" WEST 13 FEET; THENCE NORTH 37 DEGREES 49'
38" EAST 8 FEET; THENCE SOUTH 52 DEGREES 10' 22" EAST 13 FEET; THENCE NORTH 37
DEGREES 49' 38" EAST 16 FEET; THENCE SOUTH 52 DEGREES 10' 22" EAST 10 FEET TO
THE NORTHEASTERLY PROLONGATION OF SAID CERTAIN COURSE HAVING A BEARING AND
DISTANCE OF "SOUTH 37 DEGREES 49' 38" WEST 29.08 FEET"' THENCE ALONG SAID
PROLONGATION AND ALONG SAID CERTAIN COURSE, SOUTH 37 DEGREES 49' 38" WEST
40.00 FEET TO THE POINT OF BEGINNING.
PARCEL C (LIBRARY PLAZA FOOTPRINT)
PORTION OF ▇▇▇▇ ▇▇ ▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ THE CITY OF LOS
ANGELES, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS SHOWN ON MAP RECORDED
IN BOOK 2 PAGE 585 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, AND A PORTION OF THAT CERTAIN LOT KNOWN AS "BELLEVUE
TERRACE" AS SHOWN ON SAID MAP OF THE BELLEVUE TERRACE TRACT, LYING ABOVE A
PLANE PASSING THROUGH POINTS (A), (B) AND (C) SHOWN ON "EXHIBIT D" ATTACHED TO
THE DOCUMENT RECORDED ON MAY 29, 1987 AS INSTRUMENT NO. 87-853230 OFFICIAL
RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, HAVING ELEVATIONS
OF 279.6 FEET, 281.7 FEET AND 287.0 FEET RESPECTIVELY (SAID ELEVATIONS ARE
BASED ON CITY OF LOS ANGELES BENCH ▇▇▇▇ NO. 12-06690, HAVING AN ELEVATION OF
295.20 FEET, WHICH BENCH ▇▇▇▇ HAS A CITY OF LOS ANGELES 1975 ADJUSTMENT
ELEVATION OF 295.423 FEET, BASED ON NATIONAL GEODETIC DATUM OF 1929), AND ABOVE
THE PROJECTIONS OF SAID PLANE SO FORMED, TO THE EXTERIOR BOUNDARIES OF THE
FOLLOWING DESCRIBED LAND.
COMMENCING AT THE MOST WESTERLY CORNER OF ▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ TRACT, IN THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES, STATE OF
CALIFORNIA, AS SHOWN ON MAP RECORDED IN BOOK 2 PAGE 585 OF MISCELLANEOUS
RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY; THENCE
NORTHEASTERLY ALONG THE NORTHWESTERLY LINE OF SAID LOT AND ITS NORTHEASTERLY
PROLONGATION 260 FEET; THENCE SOUTHEASTERLY, AT RIGHT ANGLES TO SAID
7
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PROFORMA ALTA EXTENDED OWNERS POLICY - ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, 204 FEET TO THE TRUE POINT OF BEGINNING; THENCE
SOUTHWESTERLY, PARALLEL WITH SAID NORTHWESTERLY LINE. 40 FEET; THENCE
NORTHWESTERLY, AT RIGHT ANGLES TO SAID NORTHWESTERLY LINE 75 FEET; THENCE
NORTHEASTERLY, PARALLEL WITH SAID NORTHWESTERLY LINE. 40 FEET; THENCE
SOUTHEASTERLY, AT RIGHT ANGLES TO SAID NORTHWESTERLY LINE, 75 FEET TO THE TRUE
POINT OF BEGINNING.
ALSO RESERVING FROM THE GARAGE PLAZA PARCEL A NON-EXCLUSIVE EASEMENT FOR
VEHICULAR INGRESS AND EGRESS AND FOR EMERGENCY PEDESTRIAN ACCESS, LYING BETWEEN
HORIZONTAL INCLINE PLANES CONNECTING THE UPPER ELEVATIONS, SHOWN AS "U.E.", AND
THE LOWER ELEVATIONS, SHOWN AS "L.E.", ON "EXHIBIT C" ATTACHED TO THE DOCUMENT
RECORDED ON MAY 29, 1987 AS INSTRUMENT NO. 87-853230. OFFICIAL RECORDS, IN THE
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, (SAID ELEVATIONS ARE BASED ON
CITY OF LOS ANGELES BENCH ▇▇▇▇ NO. 12-06690, HAVING AN ELEVATION OF 295.20 FEET,
WHICH BENCH ▇▇▇▇ HAS A CITY OF LOS ANGELES 1975 ADJUSTMENT ELEVATION OF 295.423
FEET, BASED ON NATIONAL GEODETIC VERTICAL DATUM OF 1929), OVER THAT PORTION
DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST WESTERLY CORNER OF LOT 16 IN BLOCK 103 OF THE BELLEVUE
TERRACE TRACT, IN THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES, STATE OF
CALIFORNIA, AS SHOWN ON MAP RECORDED IN BOOK 2, PAGE 585 OF MISCELLANEOUS
RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY; THENCE
NORTHEASTERLY ALONG THE NORTHWESTERLY LINE OF SAID LOT, A DISTANCE OF 30 FEET;
THENCE SOUTHEASTERLY PARALLEL WITH THE SOUTHWESTERLY LINE OF SAID LOT, A
DISTANCE OF 231 FEET, MORE OR LESS, TO AN INTERSECTION WITH THAT CERTAIN COURSE
IN SAID HEREINABOVE DESCRIBED GARAGE PLAZA PARCEL HAVING A BEARING AND DISTANCE
OF "SOUTH 37 DEGREES 49' 38" WEST 55.50 FEET"; THENCE SOUTH 37 DEGREES 49' 38"
WEST ALONG SAID LAST DESCRIBED COURSE, 30 FEET, MORE OR LESS, TO SAID
SOUTHWESTERLY LINE OF SAID LOT; THENCE NORTHWESTERLY ALONG SAID SOUTHWESTERLY
LINE OF SAID LOT; THENCE NORTHWESTERLY ALONG SAID SOUTHWESTERLY LINE 231 FEET,
MORE OR LESS, TO THE POINT OF BEGINNING.
PARCEL 6: (LIBRARY SERVICE DRIVE PARCEL)
AN EASEMENT FOR INGRESS AND EGRESS BY VEHICLE AS SET FORTH IN EASEMENT DEED
RECORDED ON MAY 29, 1987 AS INSTRUMENT NO. 87-853231 OVER THAT PORTION OF THAT
CERTAIN LOT KNOWN AS "BELLEVUE TERRACE", AS SHOWN ON THE MAP OF THE BELLEVUE
TERRACE TRACT, IN THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES, STATE OF
CALIFORNIA, RECORDED IN BOOK 2, PAGE 585 OF MISCELLANEOUS RECORDS, IN THE
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, LYING BETWEEN HORIZONTAL INCLINE
PLANES PASSING THROUGH THE UPPER ELEVATIONS, SHOWN AS "U.E.", AND THE LOWER
ELEVATIONS, SHOWN AS "L.E.", ON "EXHIBIT C" ATTACHED TO THE DOCUMENT RECORDED
ON MAY 29, 1987 AS INSTRUMENT NO. 87-853231, OFFICIAL RECORDS IN THE OFFICE OF
THE COUNTY RECORDER OF SAID COUNTY, (SAID ELEVATIONS ARE BASED ON CITY OF LOS
ANGELES BENCH ▇▇▇▇ NO. 12-06690, HAVING AN ELEVATION OF 295.20 FEET, WHICH
BENCH ▇▇▇▇ HAS A CITY OF LOS ANGELES 1975 ADJUSTMENT ELEVATION OF 295.423 FEET
BASED ON NATIONAL GEODETIC VERTICAL DATUM OF 1929), DESCRIBED AS A WHOLE AS
FOLLOWS:
BEGINNING AT THE MOST WESTERLY CORNER OF ▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ TRACT; THENCE NORTHEASTERLY ALONG THE NORTHWESTERLY LINE OF SAID LOT
16, A DISTANCE OF 30 FEET; THENCE SOUTHEASTERLY PARALLEL WITH THE SOUTHWESTERLY
LINE OF SAID LOT 16 AND ITS SOUTHEASTERLY PROLONGATION, 506.5 FEET TO A POINT
IN A LINE THAT IS PARALLEL WITH AND 506.5 FEET SOUTHEASTERLY, MEASURED AT RIGHT
ANGLES, FROM SAID NORTHWESTERLY LINE OF LOT 16; THENCE SOUTHEASTERLY IN A
DIRECT LINE TO THE INTERSECTION OF A LINE THAT IS PARALLEL WITH AND 69.5 FEET
SOUTHEASTERLY, MEASURED AT RIGHT ANGLES, FROM SAID LAST MENTIONED PARALLEL
LINE, WITH A LINE THAT IS PARALLEL WITH AND 40.5 FEET NORTHEASTERLY, MEASURED
AT RIGHT ANGLES, FROM THE NORTHEASTERLY LINE AND ITS SOUTHEASTERLY PROLONGATION
8
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PROFORMA ALTA EXTENDED OWNERS POLICY-1992
OF ▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ AND STATE, AS PER MAP RECORDED
IN BOOK 184, PAGES 15 AND 16 OF MAPS, IN SAID OFFICE OF THE COUNTY RECORDER;
THENCE SOUTHEASTERLY ALONG SAID LAST MENTIONED PARALLEL LINE, 168.5 FEET, MORE
OR LESS, TO THE NORTHEASTERLY PROLONGATION OF THE SOUTHEASTERLY LINE OF ▇▇▇ ▇ ▇▇
▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ TRACT, SAID LAST MENTIONED SOUTHEASTERLY LINE
BEING ALSO THE ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ FEET WIDE; THENCE
SOUTHWESTERLY ALONG SAID LAST MENTIONED NORTHEASTERLY PROLONGATION, 29 FEET,
MORE OR LESS, TO A LINE THAT IS PARALLEL WITH AND 11.5 FEET NORTHEASTERLY,
MEASURED AT RIGHT ANGLES, FROM SAID NORTHEASTERLY LINE AND ITS SOUTHEASTERLY
PROLONGATION OF ▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇; THENCE NORTHWESTERLY ALONG SAID LAST
MENTIONED PARALLEL LINE, 168.5 FEET, MORE OR LESS, TO A POINT IN A LINE THAT IS
PARALLEL WITH AND 576 FEET SOUTHEASTERLY, MEASURED AT RIGHT ANGLES, FROM SAID
NORTHWESTERLY LINE OF LOT 16; THENCE NORTHWESTERLY IN A DIRECT LINE TO THE
INTERSECTION OF A LINE THAT IS PARALLEL WITH AND 506.5 FEET SOUTHEASTERLY,
MEASURED AT RIGHT ANGLES, FROM SAID NORTHWESTERLY LINE OF LOT 16, WITH SAID
NORTHEASTERLY LINE OF ▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇; THENCE NORTHWESTERLY ALONG SAID
LAST MENTIONED NORTHEASTERLY LINE AND ITS NORTHWESTERLY PROLONGATION TO THE
CENTERLINE OF HOPE STREET, 80 FEET WIDE, AS SHOWN ON THE MAP OF SAID TRACT NO.
9181; THENCE ALONG THE SOUTHEASTERLY PROLONGATION OF SAID SOUTHWESTERLY LINE OF
LOT 16 AND A LONG SAID LAST MENTIONED SOUTHWESTERLY LINE, NORTH 52 DEGREES
10' 15" WEST 371.26 FEET TO THE POINT OF BEGINNING.
EXCEPT THEREFROM THAT PORTION OF SAID LAND LYING NORTHWESTERLY OF THAT CERTAIN
COURSE ON "EXHIBIT C" ATTACHED TO THE DOCUMENT RECORDED ON MAY 29, 1987 AS
INSTRUMENT NO. 87-853231, OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER
OF SAID COUNTY, AS HAVING A BEARING AND DISTANCE OF "SOUTH 37 DEGREES 49' 38"
WEST 55.50 FEET".
PARCEL 7:
AN EASEMENT FOR THE PURPOSES OF LOCATING, ERECTING, INSTALLING, CONSTRUCTING,
MAINTAINING, REPAIRING, ALTERING, REPLACING, OPERATING, USING AND/OR AT ANY
TIME, SUBTERRANEAN, SURFACE AND ABOVE-GRADE PHYSICAL IMPROVEMENTS WHICH ARE PART
OF AN OFFICE BUILDING, SUBTERRANEAN PARKING GARAGE AND RELATED IMPROVEMENTS
(INCLUDING, WITHOUT LIMITATION, A PUBLIC STAIRWAY, PEDESTRIAN ESCALATORS AND
PLAZA AREAS) TO BE CONSTRUCTED AND LOCATED UPON THAT PARCEL OF LAND IN THE CITY
OF LOS ANGELES, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA CONSISTING OF A
PORTION OF LOT 1 OF PARCEL MAP L.A. NO. 1896, FILED IN BOOK 24, PAGE 21 OF
PARCEL MAPS TOGETHER WITH A PORTION OF TRACT NO. 7675 AS PER MAP RECORDED IN
BOOK 187, PAGE 4 MAPS OF SAID COUNTY ALL BEING RECORDED IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY INCLUDED WITHIN THE FOLLOWING DESCRIBED LINES:
BEGINNING AT THE INTERSECTION OF THE NORTHEASTERLY LINE OF 5TH STREET (79 FEET
WIDE) WITH THE NORTHWESTERLY LINE OF HOPE STREET (83 FEET WIDE) AS SAID STREETS
ARE SHOWN ON THE MAP FILED IN VOLUME 24, PAGE ▇ ▇▇ ▇▇▇▇▇▇ VACATION MAPS IN THE
OFFICE OF THE CITY ENGINEER OF SAID CITY, A COPY OF WHICH WAS RECORDED ON APRIL
11, 1986 AS INSTRUMENT NO. 86-451366, OFFICIAL RECORDS IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY, THENCE NORTH 37 DEGREES 49' 45" EAST, 238.48
FEET; THENCE ALONG A LINE MEASURED AT RIGHT ANGLES TO SAID NORTHWESTERLY LINE
SOUTHEASTERLY TO SAID NORTHWESTERLY LINE; THENCE SOUTHWESTERLY ALONG SAID
NORTHWESTERLY LINE TO THE POINT OF BEGINNING, AS GRANTED IN THAT INSTRUMENT
RECORDED APRIL 7, 1989 AS INSTRUMENT NO. 89-539637 OF OFFICIAL RECORDS.
PARCEL 8:
PORTION OF ▇▇▇▇ ▇ ▇▇▇ ▇, ▇▇ ▇▇▇▇▇ "M" OF THE ▇▇▇▇ TRACT, IN THE CITY OF LOS
ANGELES, IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED
IN BOOK
9
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PROFORMA ALTA EXTENDED OWNERS POLICY-1992
32 PAGE 7 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY, DESCRIBED AS FOLLOWS:
COMMENCING AT A POINT IN THE EASTERLY LINE OF HOPE STREET, 35 FEET SOUTHERLY
FROM THE NORTHWEST CORNER OF SAID LOT 7; THENCE SOUTHERLY ALONG SAID LINE OF
HOPE STREET, 60 FEET; THENCE SOUTHEASTERLY PARALLEL WITH THE NORTHERLY LINE OF
SAID LOT 7, 150 FEET; THENCE NORTHERLY PARALLEL WITH THE EASTERLY LINE OF HOPE
STREET, 60 FEET TO LAND CONVEYED BY S. C. ▇▇▇▇▇▇▇, TO ▇▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇, BY
DEED RECORDED IN BOOK 159 PAGE 142 OF DEEDS; THENCE NORTHWESTERLY ALONG THE LINE
OF SAID LAND OF MRS. GLASS, TO THE POINT OF BEGINNING.
EXCEPTING AND RESERVING ALL OIL, GAS, HYDROCARBON SUBSTANCES AND MINERALS OF
EVERY KIND AND CHARACTER LYING MORE THAN 500 FEET BELOW THE SURFACE, TOGETHER
WITH THE RIGHT TO DRILL INTO, THROUGH, AND TO USE AND OCCUPY ALL PARTS OF THE
PROPERTY LYING MORE THAN 500 FEET BELOW THE SURFACE THEREOF FOR ANY AND ALL
PURPOSES INCIDENTAL TO THE EXPLORATION FOR AND PRODUCTION OF OIL, GAS,
HYDROCARBON SUBSTANCES OR MINERALS FROM THE PROPERTY BUT WITHOUT, HOWEVER, ANY
RIGHT TO USE EITHER THE SURFACE FOR ANY PURPOSE OR PURPOSES WHATSOEVER, AS
EXCEPTED AND RESERVED BY THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF LOS
ANGELES, CALIFORNIA, A PUBLIC BODY, CORPORATE AND POLITIC, IN A DEED RECORDED
DECEMBER 6, 1989 AS INSTRUMENT NO. 89-1953121, OFFICIAL RECORDS.
PARCEL 9:
THOSE PORTIONS OF LOTS 6 AND 7 IN BLOCK "M" OF THE ▇▇▇▇ TRACT, IN THE CITY OF
LOS ANGELES, IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP
RECORDED IN BOOK 1 PAGE 489 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE NORTHWESTERLY LINE OF THE LAND DESCRIBED IN
THE DEEDS TO THE CITY OF LOS ANGELES, RECORDED FEBRUARY 16, 1912 IN BOOK 4856
PAGE 317 OF DEEDS, AS INSTRUMENT NO. 121, RECORDS OF SAID COUNTY AND RECORDED
FEBRUARY 16, 1912 IN BOOK 4371 PAGE 216 OF DEEDS, AS INSTRUMENT NO. 149, RECORDS
OF SAID COUNTY, WITH THE SOUTHWESTERLY LINE OF ▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇, AS PER
MAP RECORDED IN BOOK 564 PAGES 14 AND 15 OF MAPS, RECORDS OF SAID COUNTY; THENCE
ALONG THE BOUNDARIES OF SAID TRACT NO. 20898 AS FOLLOWS:
SOUTH 51[DEGREES] 44' 40" EAST 12.00 FEET AND SOUTH 38[DEGREES] 15' 20" WEST
7.10 FEET TO THE MOST NORTHERLY CORNER OF THE ▇▇▇▇▇ TRACT, AS PER MAP RECORDED
IN BOOK 12 PAGE 21 OF MAPS, RECORDS OF SAID COUNTY; THENCE ALONG THE
NORTHWESTERLY LINE OF SAID ▇▇▇▇▇ TRACT, SOUTH 38[DEGREES] 15' 20" WEST TO THE
SOUTHEASTERLY PROLONGATION OF A LINE PARALLEL WITH THE NORTHEASTERLY LINE OF
SAID LOT 7 AND WHICH PASSES THROUGH A POINT IN THE SOUTHEASTERLY LINE OF HOPE
STREET, AS SHOWN ON THE MAP OF SAID ▇▇▇▇ TRACT, THAT IS DISTANT SOUTHEASTERLY
THEREON 95.00 FEET FROM THE NORTHWESTERLY CORNER OF SAID LOT 7; THENCE
NORTHWESTERLY ALONG SAID PARALLEL LINE TO THE NORTHWESTERLY LINE OF SAID
HEREINABOVE FIRST MENTIONED DEEDS TO THE CITY OF LOS ANGELES; THENCE ALONG SAID
LAST MENTIONED NORTHWESTERLY LINE, NORTH 38[DEGREES] 15' 20" EAST TO SAID POINT
OF BEGINNING.
EXCEPTING AND RESERVING ALL OIL, GAS, HYDROCARBON SUBSTANCES AND MINERALS OF
EVERY KIND AND CHARACTER LYING MORE THAN 500 FEET BELOW THE SURFACE, TOGETHER
WITH THE RIGHT TO DRILL INTO, THROUGH, AND TO USE AND OCCUPY ALL PARTS OF THE
PROPERTY LYING MORE THAN 500 FEET BELOW THE SURFACE THEREOF FOR ANY AND ALL
PURPOSES INCIDENTAL TO THE EXPLORATION FOR AND PRODUCTION OF OIL, GAS,
HYDROCARBON SUBSTANCES OR MINERALS FROM THE PROPERTY BUT WITHOUT, HOWEVER, ANY
RIGHT TO USE EITHER THE SURFACE FOR ANY PURPOSE OR PURPOSES WHATSOEVER, AS
EXCEPTED AND RESERVED BY THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY
10
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PROFORMA ALTA EXTENDED OWNERS POLICY-1992
OF LOS ANGELES, CALIFORNIA, A PUBLIC BODY, CORPORATE AND POLITIC, IN A DEED
RECORDED DECEMBER 6, 1989 AS INSTRUMENT NO. 89-1953122, OFFICIAL RECORDS.
PARCEL 10:
NON EXCLUSIVE EASEMENTS FOR THE CONSTRUCTION AND MAINTENANCE OF UNDERGROUND
FOUNDATIONS, FOOTINGS, UNDERPINNINGS, TIE-BACKS AND INGRESS AND EGRESS AS
DESCRIBED IN THAT CERTAIN EASEMENT AGREEMENT RECORDED MARCH 7, 1986 AS
INSTRUMENT NO. 86-294532.
PARCEL 11:
STEPS ENCROACHMENT EASEMENT AS DESCRIBED IN THAT CERTAIN MEMORANDUM OF AMENDED
AND RESTATED LICENSE AND RECIPROCAL EASEMENT AGREEMENT RECORDED APRIL 7, 1989
AS INSTRUMENT NO. 89-539636 AS FOLLOWS:
THAT PARCEL OF LAND IN THE CITY OF LOS ANGELES, CONSISTING OF A PORTION OF HOPE
STREET AS SHOWN ON PARCEL MAP L.A. NO. 1896 FILED IN BOOK 24, PAGE 21 OF PARCEL
MAPS AND THAT PORTION CREATED BY INSTRUMENT NO. 82-465394 TOGETHER WITH THAT
PORTION OF 5TH STREET FORMERLY BEING PART OF ▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ TRACT FILED IN BOOK 2, PAGE 585 OF MISCELLANEOUS RECORDS OF SAID COUNTY
AND BEING CREATED BY CITY ENGINEER'S DEED C.E. 2-64, ORDINANCE NO. 30,973
N.S., ORDINANCE NO. 63,630 ORDINANCE NO. 160,287 RECORDED AS INSTRUMENT NO.
86-451366 ON APRIL 11, 1986 IN VOLUME 24, PAGE ▇ ▇▇ ▇▇▇▇▇▇ VACATION MAPS IN THE
OFFICE OF THE CITY ENGINEER OF SAID CITY ALL BEING RECORDED IN THE OFFICE OF
THE COUNTY RECORDER OF SAID COUNTY INCLUDED WITHIN THE FOLLOWING DESCRIBED LINE:
BEGINNING AT THE INTERSECTION OF THE NORTHEASTERLY LINE OF SAID 5TH STREET (79
FEET WIDE) WITH THE NORTHWESTERLY LINE OF SAID HOPE STREET (83 FEET WIDE) AS
SAID INTERSECTION IS SHOWN ON STREET VACATION MAP FILED IN VOLUME 24, BOOK ▇ ▇▇
▇▇▇▇▇▇ VACATION MAPS A COPY OF WHICH WAS RECORDED ON APRIL 11, 1986 AS DOCUMENT
NO. 86-451366 IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY; THENCE
NORTHEASTERLY 70 FEET ALONG SAID NORTHWESTERLY LINE TO THE TRUE POINT OF
BEGINNING; THENCE NORTHWESTERLY 12 FEET ALONG A LINE MEASURED AT RIGHT ANGLES
TO SAID NORTHWESTERLY LINE; THENCE NORTHEASTERLY 40 FEET ALONG A LINE PARALLEL
WITH SAID NORTHWESTERLY LINE; THENCE NORTHWESTERLY 20 FEET ALONG A LINE
MEASURED AT RIGHT ANGLES TO SAID NORTHWESTERLY LINE; THENCE NORTHEASTERLY 43
FEET ALONG A LINE PARALLEL WITH SAID NORTHWESTERLY LINE; THENCE SOUTHEASTERLY
15 FEET ALONG A LINE MEASURED AT RIGHT ANGLES TO SAID NORTHWESTERLY LINE;
THENCE NORTHEASTERLY 75 FEET ALONG A LINE PARALLEL WITH SAID NORTHWESTERLY
LINE; THENCE SOUTHEASTERLY ALONG A LINE MEASURED AT RIGHT ANGLES TO SAID
NORTHWESTERLY LINE TO SAID LINE; THENCE SOUTHWESTERLY ALONG SAID NORTHWESTERLY
LINE TO THE TRUE POINT OF BEGINNING.
PARCEL 12:
RIGHTS AND INTERESTS CONTAINED IN THAT CERTAIN "808 S. OLIVE GARAGE PARKING
AGREEMENT" BY AND BETWEEN ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ PARTNERS-▇▇▇▇▇▇▇ DEVELOPMENT COMPANY
AND LIBRARY SQUARE ASSOCIATES, LLC, A MEMORANDUM OF WHICH WAS RECORDED ON
DECEMBER 27, 2000 AS INSTRUMENT NO. 00-2009213.
11
THIRD AMENDMENT TO AND RESTATEMENT OF MANAGEMENT AGREEMENT
THIS THIRD AMENDMENT TO AND RESTATEMENT OF MANAGEMENT AGREEMENT
("AGREEMENT") is made and entered into as of March 27, 2002 by and between
▇▇▇▇▇▇▇ PARTNERS DEVELOPMENT, LTD., a California limited partnership (formerly
known as ▇▇▇▇▇▇▇/▇▇▇▇▇▇ Partners Development, Ltd., a California limited
partnership) ("MANAGER"), and LIBRARY SQUARE ASSOCIATES, LLC, a Delaware limited
liability company (successor-in-interest to ▇▇▇▇▇▇▇/▇▇▇▇▇▇ Partners-Library
Square Ltd., a California limited partnership) ("OWNER"), with respect to the
following:
WHEREAS, Owner owns that certain high-rise office building project,
related plaza commercial space and on-site and off-site parking facilities, and
associated common areas (the "PROJECT") situated on property located in Los
Angeles, California more particularly described on Schedule "1" to this
Agreement, including, without limitation a 73 story office tower commonly known
as Library Tower (the "BUILDING");
WHEREAS, the parties to this Agreement are all the parties to that certain
Management Agreement dated as of May 22, 1987, as modified by the terms of that
certain Amendment to Management Agreement dated as of July 21, 1989 and that
certain Second Amendment to Management Agreement dated as of January 16, 1998
(collectively, the "MANAGEMENT AGREEMENT");
WHEREAS, RECP Library LLC ("RECP") and affiliates of Owner, ▇▇▇▇▇▇▇
Partners-Hope Place, Ltd. and ▇▇▇▇▇▇▇ Partners BGHS, LLC (collectively, the
"▇▇▇▇▇▇▇ MEMBERS"), are forming Bunker Hill Equity, LLC, a Delaware limited
liability company (the "COMPANY") pursuant to that certain Limited Liability
Company Operating Agreement dated and effective as of the date hereof (the
"COMPANY AGREEMENT"), and the Management Agreement must be amended in certain
respects in connection therewith (capitalized terms used but not otherwise
defined herein shall have the meanings ascribed to them in the Company
Agreement);
WHEREAS, Owner has entered into a $200,000,000 loan ("LOAN") (referred to
in the Company Agreement as the "Existing Mortgage Debt") with GMAC Commercial
Mortgage Corporation, a California corporation ("LENDER"), pursuant to the terms
of that certain Loan Agreement dated as of January 16, 1998 (as heretofore
amended, the "LOAN AGREEMENT"), and the Loan is secured by the Project;
WHEREAS, affiliates of Owner are obtaining the New Subordinated Debt
defined in the Company Agreement as, collectively, the Senior Mezzanine Debt
and the Junior Mezzanine Debt;
WHEREAS, as set forth in the Company Agreement, the term "LOAN DOCUMENTS"
means and an all documentation in connection with the Existing Mortgage Debt and
the New Subordinated Debt entered into by the Company and any other agreements
to be entered into in connection with such documents and any financing documents
in replacement thereof to be entered into by the Company in connection with the
acquisition and its ownership of the Property.
WHEREAS, Owner desires to continue to engage Manager to manage and operate
the Project, and Manager desires to accept such engagement upon the terms set
forth herein; and
WHEREAS, this Agreement amends and restates all of the terms and provisions
of the Management Agreement;
NOW THEREFORE, in consideration of the foregoing recitals and the mutual
promises and covenants contained herein, Owner and Manager agree as follows:
ARTICLE I. INTENTIONALLY OMITTED
ARTICLE II. EXCLUSIVE AGENCY
Owner hereby appoints Manager as the manager of the Project and Manager
hereby accepts such appointment, upon the terms and conditions set forth herein.
ARTICLE III. TERM OF AGREEMENT
The initial term of this Agreement shall commence upon the date hereof and
shall continue for a period of 3 years thereafter ("INITIAL TERM"). Following
the expiration of the Initial Term and unless sooner terminated in accordance
with Article X, this Agreement shall be renewed by mutual consent of Owner and
Manager, upon provisions identical to those contained herein for successive
periods of one year each. Owner and Manager will renew this Agreement so long as
(i) there is no uncured default by Manager hereunder, (ii) no event giving rise
to Owner's right to terminate this Agreement pursuant to Article X hereof has
occurred, and (iii) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III is actively involved in the management
of Manager. Otherwise, 90 days prior to the expiration of the Initial Term and
of each renewal term, Owner and Manager shall meet to review the quality of the
performance of Manager during such term and to consider and determine whether,
and under what conditions, this Agreement shall be renewed for an additional
term. The termination will not be based on the amount of the Management Fee,
provided that Manager shall not require a Management Fee for a renewal term in
excess of that set forth in Article VIII below. Owner may, among other things,
consider and base its determination on the quality of Manager's performance of
its obligation to manage, operate and maintain the Project as an Institutional
Quality Building (as defined in Schedule 7 attached hereto) and otherwise as
provided under this Agreement. If the parties are unable to agree upon the terms
and conditions for renewal on or before the last day of the then current term,
this Agreement shall terminate upon the expiration of the then current term.
ARTICLE IV. ANNUAL BUDGET
1. PREPARATION OF BUDGET; CONTENTS. Manager shall prepare such reports,
statements, budgets and business plans to enable performance of the ▇▇▇▇▇▇▇
Members' obligations under Section 6.3 of the Company Agreement. In any event,
without limiting the foregoing, Manager shall prepare and submit to Owner for
its approval, in accordance with the timing and procedures for approval set
forth in the Company Agreement, a budget (the "ANNUAL BUDGET") for the calendar
year to commence on the following January 1, in the form previously used by
Manager or required under the Company Agreement, and approved by Owner for such
purpose. The Annual Budget shall include, among other matters:
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a. "Operating Budget" - An operating budget which shall set forth,
among other matters, anticipated cash receipts, cash expenditures and
additions to reserves for such year;
b. "Capital Budget" - A capital budget which shall set forth, among
other matters, anticipated and proposed capital expenditures for such year
and the source of funds in respect thereto (including the projected time
and amount for any required advances by Owner), together with supporting
documentation indicating the source of the cost estimates for such capital
expenditures;
c. "Reimbursements Schedule" - A separate schedule of anticipated
"Reimbursements" as contemplated by Article VIII, paragraph 3 hereof,
provided that the Annual Budget shall not contain expenses or allocations
for home office expenses or general corporate or administrative charges or
any other costs or expenses for which Manager is not entitled to
reimbursement hereunder; and
d. "Leasing Plan" - A comprehensive leasing program which shall
include, among other matters, a statement of the space that Manager expects
to be available for leasing during such year, a statement of the space
Manager expects to be leased during such year, and the Approved Leasing
Guidelines, including the minimum rent Manager expects to obtain for such
space, the other financial provisions of leases of space in the Project
(including, but not limited to, free-rent periods, the contributions
towards taxes and expenses, and the escalation provisions), and the form or
forms of such leases and changes to the standards for such leasing.
2. Approval of Budget. The Annual Budget shall be approved, disapproved,
submitted, resubmitted and finalized in accordance with the timing and
procedures set forth in Section 6.3 of the Company Agreement.
3. Amendments to Annual Budget. Manager shall submit to Owner any
proposed revisions in the Approved Annual Budget, in accordance with the
provisions of Section 6.3 of the Company Agreement. Any approved changes shall
be reflected in an amended Approved Annual Budget which shall be applicable for
the remainder of the calendar year. However, nothing in this paragraph 3 shall
be construed as releasing Manager from its obligation to manage the Project in
accordance with the "Approved Annual Budget".
4. Obligation and Authority to Implement Budget. Manager shall implement
the most recent Annual Budget approved by Owner in accordance with the
foregoing provisions (the "APPROVED ANNUAL BUDGET") and shall be authorized,
without the need for further approval by Owner, to make the specified
expenditures and incur the specified obligations provided for in the Approved
Annual Budget (but only if Manager acts in conformance with the Approved Annual
Budget in all respects with respect to, among other matters, the nature, amount
and timing of each such expenditure or obligation except as otherwise herein
expressly provided).
5. Performance Within Budget. No expenditure shall be made in excess of
a budgeted line item therefor on the Approved Annual Budget. All expenses must
be charged to the proper account on the Approved Annual Budget and no expense
may be classified or
3
reclassified for the purpose of avoiding an excess in the annual budgeted
amount of a line item in the Approved Annual Budget.
6. Books and Records. Manager shall prepare and maintain a
comprehensive system of separate books and records for the Project, with
sufficient supporting documentation to ensure that all entries in the books and
records are accurate and complete. Such books and records shall be kept and
maintained by Manager in accordance with the requirements of Sections 6.1 and
6.2 of the Company Agreement. Manager shall ensure such control over accounting
and financial transactions as is reasonably required to protect Owner's assets
from theft, error or fraudulent activity on the part of Manager's associates or
employees. Losses arising from such instances are to be borne by Manager.
7. Accounting. Manager shall perform those accounting and financial
reporting services regarding the Project which are normally provided with
respect to Institutional Quality Buildings, including those listed on Schedule
7, or as may be reasonably required by Owner. The accounting also shall include
a comparison of monthly and year-to-date annual income and expense with the
Approved Annual Budget for the Project. Manager shall provide Owner with an
analysis of any significant variances between budgeted and actual amounts in
accordance with paragraph 3 above. In addition, Manager shall remit to Owner
all unexpended funds, consistent with the requirements of paragraph 3 of
Article V below, and the additions to reserves in the amount set forth in the
Approved Annual Budget or otherwise agreed to from time to time by Owner, along
with such accounting. Manager shall also provide to Owner external and internal
audit coordination, tax planning and compliance coordination and analysis in a
manner and form mutually agreeable by Owner and Manager, and Manager shall
provide additional information required by individual partners of Owner for
their financial statement purposes.
8. Copies of Documentation. Manager shall maintain the books and records
for any given calendar year for a period of 7 years subsequent to such year,
except for any year being audited by any governmental agency (in which case the
books and records for such audited year shall be maintained until the audit is
completed and all disputed items are resolved). Manager shall make available to
Owner, upon reasonable notice at the place of business maintained by Manager
the statements, reports and documents listed on Schedule 6 along with any
supporting documentation.
9. Company Agreement Reports, etc. Notwithstanding anything in this
Agreement to the contrary, Manager shall provide such budgets, statements,
reports and other information concerning the operation of the Project which the
▇▇▇▇▇▇▇ Members are required to provide to the Company and/or RECP under the
terms of the Company Agreement, including, but not limited to, under Section 6.3
of the Company Agreement, and agrees to do so in a timely manner in order that
such budgets, statements reports and other information may be provided within
the time periods called for under the Company Agreement.
ARTICLE V. MANAGEMENT OF PROJECT
Manager shall manage, operate and maintain the Project in accordance with
the Management Standard Requirements and general standards applicable to other
Institutional Quality Buildings. Without limiting the generality of the
foregoing, Manager's obligations with
4
regard to the management, leasing, operation and maintenance of the Project
shall include the following:
1. Manager Orientation. Manager has informed itself with respect to the
layout, construction, location, character, plan and operation of the lighting,
heating, plumbing, ventilating and elevator systems and any other mechanical
equipment and systems in the Project, and is thoroughly familiar therewith, and
shall be responsible for enforcement of all warranties and guaranties pertaining
to the equipment of the Project.
2. General Management Duties. Manager shall manage the Project in an
efficient and businesslike manner having due regard for the age and physical
condition of the Project. Manager, through its employees and independent
contractors, shall supply complete operational services for the Project,
provided that the nature and costs of such services are included in the then
current Approved Annual Budget, and provided further that the cost of such
services are comparable with general prevailing market conditions. Manager shall
not pay any fees or reimbursements to any affiliate of Manager if and to the
extent such fees and/or reimbursements exceed the prevailing fees for any
services included in the operating expenses by operators of Institutional
Quality Buildings whether such services are provided to such buildings by the
operator, the landlord or an outside consultant or service.
3. Collection of Revenue; Monthly Reports. Manager shall use all
commercially reasonable efforts to collect for the account of Owner all rents
and other charges which may become due at any time from any tenant or from
others for services provided in connection with or for the use of the Project or
any portion thereof, and as directed by Owner, shall institute collection and
legal proceedings in the name of Owner for the collection thereof and for the
dispossession of tenants and other persons from the Project. Manager shall
collect and identify any income due Owner from miscellaneous services provided
to tenants or the public including, but not limited to, parking income, tenant
storage, and coin operated machines of all types. All funds received by Manager
for or on behalf of Owner (after deposit and application as required under the
Loan Documents and subsequent disbursement pursuant to the Loan Documents) shall
be deposited in an account designated by Owner (the "SPECIAL ACCOUNT") in trust
for Owner, and the Management Fee, Reimbursements and other expenses permitted
under this Agreement shall be paid therefrom in accordance with the Approved
Annual Budget and the other terms of this Agreement. Owner may designate a
different account in any bank or financial institution as the Special Account at
any time and from time to time by written notice to Manager. No other funds of
Manager shall be deposited or commingled with funds in the Special Account. All
fees or other revenue or compensation (except the Management Fee, Reimbursements
and any payments pursuant to paragraph 2 of Schedule 2) received by Manager with
respect to any services performed by Manager with respect to the Project shall
be the property of Owner and shall be deposited in the Special Account. Either
Manager (provided Owner is not then entitled to terminate this Agreement
pursuant to Article X hereof or the rights and obligations of Manager with
respect thereto have not theretofore been revoked) or Owner shall be entitled to
draw upon such Special Account, but all such money shall be deemed to be the
property of Owner. Such monies of Owner shall not be commingled with the funds
of Manager. Manager may withdraw from such Special Account (subject to the
limitations set forth in this Agreement) disbursements required to be made under
this Agreement. However, except as otherwise provided herein or agreed to in
writing by Owner, disbursements by Manager out of the Special Account shall be
5
limited to the purposes set forth in the Approved Annual Budget and to the
amounts for such purposes which do not exceed the corresponding sums allocated
to the same in the Approved Annual Budget. Manager shall render to Owner, within
30 days after the end of each month, the statements, reports, documents and data
specified in Schedule 6, hereunto annexed and made a part hereof, (showing,
among other matters, revenue collected, costs and expenses incurred or paid,
delinquencies, uncollectible items, vacancies, information updating the Approved
Annual Budget (including variances from the Approved Annual Budget in accordance
with Article IV.7) and other matters pertaining to the management, operation and
maintenance of the Project during such month) together with supporting invoices
and such other statements, reports, documents and data as Owner shall from time
to time request.
4. Security Deposits. Manager shall deposit all security deposits for the
Project in a separate project account (the "SECURITY ACCOUNT") in the name of
Owner on which either Owner or Manager may draw. Manager shall be authorized to
withdraw monies from the Security Account at such times as the security deposits
are returnable to tenants or in the event of a tenant default (in which case
monies shall be used as directed by Owner). All disbursements, transfers and
refunds made by Manager from the Security Account shall be made by a check drawn
on the Security Account or appropriate journal or bookkeeping entries and shall
be substantiated by appropriate records and accounting procedures. The funds in
the Security Account, or the amount thereof requested by Owner, shall be
delivered to Owner upon Owner's request.
5. Repairs and Maintenance. Manager shall, in the name of and at the
expense of Owner, make or cause to be made such ordinary maintenance, repairs
and alterations as Manager may deem advisable or necessary, subject to and
within the limitations of the Approved Annual Budget for the Project. Such
duties shall include, without limitation, interior and exterior cleaning,
painting, plumbing, carpentry, engineering, landscaping and such other normal
maintenance and repair work as may be necessary or desirable in order to
maintain the Project as an Institutional Quality Building. However, unless
contained in the Approved Annual Budget, not more than $25,000 shall be expended
for any one item of repair or alteration without Owner's prior written
approval, except, subject to the terms of the Company Agreement and the Loan
Documents, emergency repairs if, in the reasonable opinion of Manager, such
repairs are immediately required to protect the Project or tenants or other
persons from damage or to maintain services to tenants as called for in their
leases. Manager shall promptly advise Managing Member regarding any
expenditures for such emergency repairs by notifying a person designated by
Managing Member for such purpose (and promptly notify Owner of such emergency
repairs). The authority provided to Manager in this paragraph shall not extend
to expenditures of the type described in paragraph 6 below or to expenses to
refurnish, rehabilitate, or remodel areas covered by new leases. The latter
expenditures are subject to the prior approval of Owner at the time of execution
of new leases. In accordance with the approval procedure set forth in the
Company Agreement, Manager shall periodically amend the Approved Annual Budget
to indicate any variances in the budgeted costs for repairs and maintenance in
accordance with Article IV.3 above and shall promptly inform Owner of any
increases in such costs.
6. Capital Improvements. Manager shall, in the name of and at the
expense of Owner, make or cause to be made such capital improvements to the
Project as are included in the approved Capital Budget or are otherwise
approved in writing by Owner, as well as all remodeling and refurbishing of
Tenant premises as approved by Owner in connection with new
6
leases. Manager shall make recommendations, select contractors and follow bid
procedures as required, from time to time, by Owner and shall supervise all
such work to ensure compliance with contract requirements and applicable law.
7. Leasing. Manager shall use diligent efforts to assist any broker
("BROKER") who may, from time to time, be employed by Owner to lease space in
the Project. Manager shall refer all inquiries concerning rental space in the
project to Broker, or if no Broker is employed at such time, to Owner. All
negotiations with prospective tenants shall be conducted by Broker or Owner. All
leases shall be prepared by Broker in the name of Owner and shall be presented
to and executed by Owner unless Manager is authorized to execute such leases in
accordance with the provisions of Section 11.d of this Article V. Manager shall
duly and punctually comply with all of the obligations of the lessor under all
leases with tenants of space in the Project, but solely on behalf of Owner and
at Owner's expense.
8. Service Contracts. Subject to the provisions of Section 11.d of this
Article V, Manager shall, in the name of and at the expense of Owner, contract
for all necessary and proper contracts, for electricity, gas, fuel, water,
telephone, window cleaning, rubbish hauling, vermin extermination, janitorial
services, landscape maintenance, parking management, engineering services,
security services and such other maintenance services for the Project as Manager
shall reasonably determine to be advisable; provided that no service contract
(other than the service contract(s) for the Project vertical transportation
system) shall be for a term exceeding one year or shall not provide that such
contract may be cancelled on thirty (30) days notice from Owner or Manager,
without prior written approval of Owner and the cost of all such services shall
be included in the Approved Annual Budget or otherwise approved in writing in
advance by Owner. Further, the cost of such services shall be comparable with
or less than general prevailing market conditions. Manager shall, at Owner's
expense, purchase and keep the Project furnished with all necessary supplies.
Consistent with standards maintained by prudent managers of Institutional
Quality Buildings, Manager shall (i) provide energy management and utility
conservation for the Project as required by Owner and (ii) prepare a "disaster
manual" to be distributed to tenants and utilized by Project personnel. All
expenses shall be charged to Owner at net cost and Owner shall be credited with
all rebates, refunds, allowances and discounts allowed to Manager. All service
contracts shall be subject to Owner's prior approval and to satisfaction of such
conditions as Owner may impose.
9. Payments. Except as otherwise directed from time to time by Owner and
in accordance with the Approved Annual Budget, Manager shall make or cause to be
made the payment when due of (a) all payments due under all loans secured by
the Project and other loans to Owner as Owner may direct, (b) all taxes,
assessments and other levies imposed in connection with the Project and Owner's
personal property located therein or the operation thereof or any business
conducted on or with the use thereof or in connection therewith; (c) all
charges (other than those for which the tenants under Leases shall be directly
responsible to the utility company) for or related to water, electricity,
telephone service or other commodities or services furnished the Project or any
part thereof during the Term, and (d) all amounts otherwise required to be paid
under any contract, instrument or encumbrance to which the Project is or may be
subject during the Term.
7
10. Insurance. If requested by Owner, Manager shall obtain and maintain
insurance with respect to the Project as required to be carried by Owner
pursuant hereto and as required by the Loan Documents. Manager shall also
cooperate with Owner's insurance carrier in the processing of claims and
defense and settlement of lawsuits with respect to the Project.
11. Company Requirements. In addition to and without limiting the
foregoing provisions of this Article V or the provisions of Article VI below,
in accordance with the Approved Annual Budget, Manager shall perform the
following, and in the event of any conflict between the terms and provisions of
this paragraph 11 and the other terms and provisions of this Agreement, the
terms and provisions that impose the greater obligation on Manager shall govern:
a. apply for and use diligent efforts to obtain any and all
consents, approvals and permits required for the occupancy and operation of the
Project in accordance with the Approved Annual Budget, or as Owner otherwise
reasonably determines;
b. cause to be paid, as applicable, before delinquency and prior to
the addition of interest or penalties, all taxes, assessments and other
impositions applicable to the Project, and undertake any action or proceeding
seeking to reduce such taxes, assessments or other impositions as is reasonably
necessary;
c. demand, receive, acknowledge and institute legal action for
recovery of any and all revenues, receipts and considerations due and payable
to Owner, provided, however that no legal action will be instituted by Manager
without the prior written consent of Managing Member;
d. execute and deliver leases and other contracts and/or instruments
on Owner's behalf as necessary or desirable to carry out the business of Owner,
provided further that each such lease complies with the Approved Leasing
Guidelines under the Company Agreement and the Leasing Plan, and Manager will
not enter into (x) any Major Leases; (y) any Space Lease for a term longer than
ten (10) years; or (z) any contract other than a Space Lease involving the
payment or receipt of an amount in excess of $50,000, or the term of which is
in excess of one year, without the prior written consent of the Managing Member;
e. keep all books of account and other records of the Company and
each of its Subsidiaries and deliver all reports in the manner provided in
Article 6 of the Company Agreement;
f. maintain all funds of the Company in a Company bank account in
the manner provided herein or in Article 6 of the Company Agreement, which
funds shall not be commingled with the funds of any other Person;
g. coordinate the defense of any claims, demands, suits or legal
proceedings made or instituted against Owner by other parties, through legal
counsel for the Company approved by the Managing Member. Managing Member has
approved ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Professional Corporation as non-exclusive counsel
for Owner;
h. monitor Owner's, the Company's and its Subsidiaries' compliance
with and take such actions as is necessary on behalf of Owner and/or the
Company to cause Owner, the
8
Company and its Subsidiaries to comply with the terms and provisions of any and
all contracts and other agreements and instruments entered into and assumed by
Owner, the Company or any of its Subsidiaries in accordance with the provisions
of this Agreement and the Company Agreement, including, without limitation, the
terms and provisions of the Loan Documents and any other loan documents assumed
or executed by the Company;
i. cause Owner to do or cause to be done all things necessary to
preserve, renew and keep in full force and effect all rights, licenses permits,
franchises and other agreements necessary for the continued use and operation of
its business. In addition, and whether or not required by law, Manager shall
cause Owner at all times to maintain, preserve and protect all of the Project to
the extent necessary for the continued conduct of its business and maintain the
Project in a condition at least as good as that on the date of this Agreement,
except for reasonable wear and use and casualty, and from time to time cause to
be made, subject to the prior written consent of the Managing Member, all
reasonably necessary repairs, renewals, replacements, betterments and
improvements thereto;
j. cause Owner, the Company and its Subsidiaries to pay and
discharge, or cause to be paid or discharged, all taxes, assessments and
governmental charges levied upon it, its income and assets as and when such
taxes, assessments and charges are due and payable (including, without
limitation, all impositions), as well as all lawful claims for labor, materials
and supplies or otherwise, which could become a Lien or encumbrance on any of
its respective assets, subjects to any rights to contest permitted under the
Loan Documents;
k. cause the Company's independent accountants to prepare (under the
oversight of the Managing Member), on an accrual basis, all federal, state and
local tax returns required to be filed by Owner, the Company and its
Subsidiaries, and cause Owner, the Company and its Subsidiaries to file all such
returns and other reports that it is required by law to file. The Managing
Member has approved ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP as the initial accountants for the
Company, subject to Managing Member's rights to replace such accountants as set
forth in the Company Agreement;
l. cause Owner or its contractors to maintain sufficient inventory
and equipment of types and quantities to enable the operation of the Project;
m. promptly notify Owner and the Managing Member in writing of the
giving of any notice of any material default by any party under any Contracts
or other agreement of which Manager is aware;
n. promptly enforce the performance and observance of all of the
material covenants and agreements required to be performed and/or observed by
the other party under each Contract and other agreement including, without
limitation, the Loan Documents, provided, however that no legal action will be
instituted by Manager without the prior written consent of the Managing Member;'
o. at all times maintain staffing and an organization sufficient to
enable Manager to carry out all of its duties, obligations and functions under
this Agreement;
9
p. take such action on behalf of Owner to cause the Project to be
in compliance with all laws, ordinances, orders, rules, regulations and
requirements of all federal, state and municipal governments, courts,
departments, commissions, boards and officers, and the requirements of any
insurance policy (or any insurer thereunder), any national or local Board of
Fire Underwriters, or any other body exercising functions similar to those of
any of the foregoing, which may be applicable to the Project or the operation
and management thereof, and, if appropriate, to contest the validity or
application of any such law, ordinance, order, rule, regulation or requirement
when it is not valid or applicable; and
q. comply at all times with the provisions of Paragraph 5.2(c) of
the Company Agreement.
Manager hereby accepts the foregoing obligations. In carrying out its
duties and responsibilities under this Agreement Manager shall have the duty to
act in good faith and to refrain from engaging in any negligent or reckless
conduct, intentional misconduct or any violation of law. Manager acknowledges
that if and to the extent that the Managing Member exercises its rights under
the Company Agreement to revoke all or any of the rights and obligation of the
▇▇▇▇▇▇▇ Members or their Affiliates (including without limitation, the rights
and obligations of Manager hereunder), such applicable rights and obligations
of Manager under this Agreement shall be automatically revoked, and upon such
revocation, Manager shall no longer be authorized to perform any of such rights
and obligations on behalf of Owner.
Notwithstanding anything to the contrary contained in this Agreement,
Manager shall not be obligated to take any action, whether directed by Owner,
Managing Member or otherwise, if such action would subject any of Owner or
Owner's Affiliates to recourse liability pursuant to or under any provision of
the Loan Documents.
ARTICLE VI. METHODS OF OPERATION
1. Contracting. All service contracts, all contracts for capital
improvements and all contracts for the refurbishing and remodeling of tenant
spaces which (a) cover expenditures included within an Approval Annual Budget
or expenditures which are otherwise approved in advance by Owner, and (b) which
are approved in advance by Owner or otherwise meet criteria established by
Owner for such contracts, shall be executed by Manager as agent for Owner.
Manager shall not subcontract with any third parties to perform any of its
leasing, management or operational functions which are the subject of this
Agreement, except for service contracts of the type described in Article V,
paragraph 8 above. All other contracts with respect to the Project and all
tenant leases shall be executed by Owner. Upon any termination of this
Agreement, Manager shall, if requested by Owner, assign all assignable
contracts executed by Manager or Owner.
2. Compliance. Subject to the other provisions of this Agreement, Manager
shall be responsible for operating and maintaining the Project in compliance
(and shall use diligent and commercially reasonable efforts to cause all
tenants and Owner's subcontractors to comply) with known federal, state and
municipal laws, ordinances, regulations and orders relative to the leasing,
use, operation, repair and maintenance of the Project and with the rules,
regulations or orders of the local Board of Fire Underwriters or other similar
body (collectively, the
10
"REQUIREMENTS"). Manager shall promptly remedy any violation of any such
Requirement which comes to its attention, and further agrees, at Owner's
expense, to promptly provide to Owner written notice of any known, actual,
alleged, or threatened violation of or failure to comply with any Requirements.
Expenses incurred in so complying and in correcting any such violation shall be
included in an Approved Annual Budget or otherwise approved in advance by
Owner. Manager shall be responsible for compliance with all terms and
conditions contained in any ground lease, space lease, mortgage, deed of trust
or other security instrument or other conditions, agreements or restrictions of
record (or known to Manager) affecting the Project and for remedying any breach
thereof. Notwithstanding the foregoing, however, Manager's responsibilities
under this paragraph shall not extend to matters as to which the expenditure of
Owner's funds is required but not approved by Owner. Manager shall assist Owner
in Owner's efforts to comply with federal, state or other governmental energy
conservation laws, regulations, rules, etc. and in addition, shall cooperate
with Owner to implement such energy conservation programs as Owner may desire to
implement from time to time.
3. Bonding. All employees of Manager who handle or are responsible for
Owner's funds shall, if requested by Owner, be covered by fidelity insurance or
a fidelity bond. The amount of such insurance or bond shall be determined by
Owner and the premium therefor (less the premium on the minimum amount of such
coverage required to be carried by Manager as set forth in Article VIII,
paragraph 4(f)) shall be an operating expense of the Project.
4. Legal Proceedings. Manager shall notify Owner if any tenant shall be
delinquent in payment of rent more than sixty (60) days or otherwise in default
of its lease beyond applicable notice and grace periods. Manager shall, at
Owner's request and expense, and subject to Managing Member's consent or as
otherwise approved under this Agreement, engage counsel and cause such legal
proceedings to be instituted as may be necessary to enforce payment of rent and
compliance with leases or to dispossess tenants. Manager shall use Owner's legal
counsel or other legal counsel approved by Owner to institute such actions, and
all compromises shall be subject to the prior approval of Owner. Attorney's fees
and costs so incurred shall be expenses of the Project but shall be submitted to
Owner for approval prior to payment.
5. Employment of Personnel. Manager shall have in its employ at all times
a sufficient number of capable employees to enable it to properly, adequately,
safely and economically manage, operate and maintain the Project. All matters
pertaining to the employment, supervision, compensation, promotion, and
discharge of such employees, as well as union negotiation and compliance with
laws and regulations dealing with employee matters, are the responsibility of
Manager, which is in all respects the employer of such employees, including,
without limitation, workers' compensation, social security, unemployment
insurance, hours of labor and similar matters. The wages, salaries and other
compensation paid to full-time employees of the Project, and to others who
perform special services for the benefit of the Project, shall be reimbursed by
Owner to Manager as provided in Article VIII. This Agreement is not one of
employment of Manager by Owner, but one with Manager engaged as an independent
contractor in the business of property management, and all employment
arrangements are, therefore, solely Manager's concern, and Manager shall have no
authority to hire employees or establish an Agency relationship on behalf of
Owner.
11
Prior to the date hereof, the On-Site Employees have been the direct
employees of Owner and paid directly by Owner. From and after the date hereof,
Manager shall ensure that the On-Site Employees are and remain the employees of
Manager in accordance with the terms of this Agreement. Manager hereby assumes
all obligations of Owner as the former employer of the On-Site Employees that
may continue to exist from and after the date hereof and Manager shall indemnify
and hold Owner harmless from any liability and/or claim in connection therewith.
In the event that any expenses are attributable in part to the Project and
in part to other properties owned and managed by Manager, consistent with each
Approved Annual Budget, such expenses shall be prorated by Manager as
appropriate from time to time and in a manner agreeable to Owner and Manager.
Manager shall submit to Owner a report of all such prorations.
6. Services to Existing Tenants. Manager shall perform services for
tenants of the Project which are normally provided by Owners of comparable
buildings or which are specifically requested by Owner. Manager shall use its
best efforts to render such services to tenants of the Project at a minimum cost
to Owner consistent with Owner's standards for the Project.
ARTICLE VII. FINANCIAL MATTERS
1. Audits. Owner reserves the right to audit all books and records
maintained by Manager with respect to the Project. Manager shall make all books
and records of the Project available in order to enable compliance with Section
6.2 of the Company Agreement. Except as provided in the last sentence of this
paragraph, all audits shall be at Owner's cost, shall be conducted by
appointment during normal business hours and shall be conducted at Manager's
office where such books and records are located or at such other location
required under the Company Agreement. Any audit may be conducted by Owner's
employees or by independent persons engaged by Owner. Any discrepancies noted in
any audit shall be promptly corrected. Manager shall bear all costs related to
an audit if it is determined that there are one or more errors in any annual
statement delivered to Owner which, in the aggregate, constitutes more than 3
percent of the gross receipts from the Project for that period.
2. Payment of Bills. If Project Revenue (hereinafter defined) from the
Project is not sufficient to pay bills and charges incurred pursuant to the
Approved Annual Budget and after exhausting available funds, Manager shall
submit to Owner a statement of remaining unpaid bills and Owner shall forthwith
provide sufficient funds to pay the same.
ARTICLE VIII. COMPENSATION OF MANAGER
1. Compensation. For its services hereunder, Manager shall be paid a
monthly management fee as specified in Schedule 2 attached hereto (the
"MANAGEMENT FEE"). For the purposes of Schedule 2, "PROJECT INCOME" means all
Project Revenue less Excluded Items. "PROJECT REVENUE" shall mean all rent and
other revenue actually collected from Project operations during such month,
including parking charges, operating expense reimbursements, fees, amounts paid
for after-hours or excess utilities and/or air conditioning service, amounts
paid for special services rendered to tenants, vending machine rental charges
and rent insurance
12
proceeds. "EXCLUDED ITEMS" shall mean (i) security and other tenant deposits and
prepaid rents (except the portion of any such deposit or advance payment applied
to rent due for the current month), (ii) amounts received to the extent such
amounts constitute reimbursement of prior expenditures by Owner, (iii) proceeds
from insured claims, other than proceeds from rent insurance, (iv) costs and
fees recovered in litigation and refunds of taxes paid, (vi) proceeds from any
sale or financing of all or any portion of the Project.
2. Employee Compensation. Employees of Manager shall be compensated on
the following basis:
a. Employees of Manager who will be employed full-time in the office
of the Building in the direct management of the Project as of the date hereof
are set forth on Schedule 3 (the "ON-SITE EMPLOYEES"). Manager may, in its
discretion, employ additional or fewer On-site Employees as it deems necessary
or appropriate in order to manage the Project in a manner consistent with
comparable Institutional Quality Building; provided, however, that employment of
any additional On-Site Employees for which no provision has been made in an
Approved Annual Budget must have the prior written consent of Owner and the
Approved Annual Budget shall be amended (in accordance with the provisions
hereof) to reflect such additional On-Site Employees. All wages, salaries, and
other compensation paid to On-Site Employees included in the Approved Annual
Budget shall be reimbursed by Owner to Manager.
b. In addition to the employment of On-Site Employees as provided
in Article VIII.2(a) hereof, Manager may, in its reasonable discretion, from
time to time (but in emergency situations only and upon notice to Owner) employ
personnel of its general operations to perform direct special services for the
benefit of the Project. Owner shall reimburse Manager for such direct services
rendered by special personnel in an amount commensurate with normal and
customary charges for such services by similarly qualified persons. Persons
whose compensation may not be charged to Owner for services rendered to the
Project include the general asset management personnel of Manager who are not
on-site at the Project.
c. Manager shall make disbursements and deposits for all
compensation and other amounts payable with respect to persons employed by
Manager in the operation of the Project. The amounts so payable shall include,
but not be limited to, unemployment insurance, social security, workers'
compensation, employee benefit packages and other charges imposed by a
governmental authority or provided for in a union agreement and shall include,
without limitation, costs arising out of or based upon any law, regulation,
requirement, contract or award relating to the hours of employment, working
conditions, wages or compensation of employees or former employees. Manager
shall maintain complete payroll records. All payroll costs, including, but not
limited to, those enumerated herein, are operating expenses to be reimbursed to
Manager by Owner.
3. Reimbursable Expenses, Office, and Other Services.
a. Manager shall be entitled to reimbursement of all direct
out-of-pocket expenses, which expenses shall be reflected in an Approved Annual
Budget, and such expenses shall include, but not be limited to, normal office
expenses and business expenses associated with operating the office of the
building. No such reimbursement shall be permitted for home
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office expenses or general corporate or administrative charges. Further, Owner
shall provide for the use of Manager a furnished management office in the
Project, to be utilized directly for the benefit of the Project, together with
telephone service, office janitorial service, printed forms and customary office
supplies and equipment (such as typewriters, work processor, computer,
photocopying equipment and calculators). The method of furnishing and equipping
such office, and the total cost thereof, shall be determined by Owner from time
to time. As used herein, "REIMBURSEMENTS" means those amounts set forth in this
paragraph 3 and in the preceding paragraph 2 and shall specifically exclude the
items listed in paragraph 4 of this Article VIII.
b. All personal property and fixtures obtained for the use by
Manager in the office of the building or otherwise in the Project shall be
purchased, where reasonably practical, in the name of Owner and shall in all
events, upon termination of this Agreement, remain the property of Owner.
4. Non-Reimbursable Expenses. The following expenses or costs incurred
by or on behalf of Manager in connection with this Agreement shall be at the
sole costs and expense of Manager and shall not be reimbursed by Owner:
a. Cost of gross salary and wages, payroll taxes, insurance,
worker's compensation, and other benefits of Manager's office personnel not
employed in the office of the building and not employed as special personnel as
provided in Article VIII.2(b) hereof. Such personnel include those identified on
Schedule 4 hereof.
b. General accounting and reporting services within the reasonable
scope of the Manager's responsibility under this Agreement.
c. Cost of forms, papers, ledgers, and other supplies and equipment
used in the Manager's office at any location other than in the office of the
Building.
d. Cost of advances made to employees and cost of travel by
Manager's employees or associates to and from the Project.
e. Cost attributable to losses arising from negligence, willful
misconduct, breach of this Agreement, or fraud on the part of Manager,
Manager's associates or Manager's employees.
f. Cost of comprehensive crime insurance or fidelity bond purchased
by Manager with respect to its employees (including the On-Site Employees) for
its own account. Manager shall at all times maintain in effect such coverage,
less reasonable deductibles, in a minimum amount of $1,000,000.
g. Payments made by Manager to RECP pursuant to the Consulting
Agreement between Manager and RECP.
5. Payment of Expenses. Payment or reimbursement of the amounts described
in paragraphs 1 through 3 above shall be as follows:
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a. The monthly Management Fee shall be calculated and paid
concurrently with Manager's submission of its monthly accounting to Owner and,
upon submission of such accounting, Manager may pay such fee from Project
operating funds then in its possession or control.
b. Employee expenses (provided within the Approved Annual Budget)
shall be reimbursed to Manager at the time incurred by Manager and Manager may
reimburse such expenses from time to time from Project operating funds under its
possession or control. Manager shall give Owner a monthly statement of all other
Reimbursements, and Manager shall be reimbursed therefor monthly from Project
operating funds under its possession or control. A detailed summary of all
Reimbursements shall be included on Manager's monthly accounting to Owner.
ARTICLE IX. INSURANCE AND INDEMNIFICATION
1. Indemnity and Hold Harmless. Owner agrees to protect, defend,
indemnify and hold harmless Manager from and against any and all loss, cost,
damage, liability and expense (including court costs and reasonable attorneys'
fees) arising out of the performance by Manager of its obligations and duties
hereunder in accordance with the terms hereof, or due to the condition or use of
the Project, provided, however, that Owner does not hereby agree to, and shall
not, so indemnify Manager from any such loss, cost, damage, liability or expense
arising out of any act or omission of Manager or any of its agents, officers,
employees or representatives, which act or omission is negligent, willful, in
breach of this Agreement, or outside the scope of Manager's authority as
provided herein.
The foregoing agreement of Owner shall expressly extend to any liabilities,
claims and costs of defense arising out of or resulting from failure or refusal
of Owner to authorize compliance with any law, rule, order or determination or
any governmental authority with respect to the Project, where such matter is
promptly brought to Owner's attention by Manager, and Owner declines to comply
with the same. Nothing contained herein, however, shall relieve Manager of
responsibility to owner for negligence or willful misconduct, unless such
negligence or willful misconduct is covered by Owner's insurance. The provisions
of this Section 1 shall survive the expiration or termination of this Agreement.
2. Insurance.
a. Owner agrees to carry public liability, elevator liability and
contractual liability insurance (specifically insuring the indemnity provisions
contained in paragraph 1 above), and such other insurance Owner deems necessary
or desirable for the protection of the interests of Owner and Manager. In each
such policy of insurance, Owner shall designate Manager as a party insured with
Owner with respect to Manager's operations on behalf of Owner as described
herein, and the carrier and the amount of coverage in each policy shall be
mutually agreed upon by Owner and Manager. A certificate of each policy issued
by the carrier shall be delivered promptly to Manager by Owner. All policies
shall provide for 30 days' written notice to Manager and Owner prior to
cancellation, non-renewal or material amendment.
15
b. Manager shall maintain the following insurance coverages (with
reasonable deductibles, if applicable) at all times during the term of this
Agreement:
i. Worker's compensation insurance at no less than statutory
requirements, and employer's liability insurance with a limit of not less than
One Million Dollars ($1,000,000) per occurrence;
ii. Non-occupational disability insurance when required by law;
and
iii. Commercial general liability insurance with a minimum
combined bodily injury and property damage limit of One Million Dollars
($1,000,000) per occurrence and Two Million Dollars ($2,000,000) in the
aggregate, with aggregates applying separately to products-completed operations
and all other general liability coverages combined. Commercial umbrella or
excess liability insurance with a minimum limit of Three Million Dollars
($3,000,000) per occurrence and Three Million Dollars ($3,000,000) in the
aggregate; and
iv. Commercial automobile liability insurance on an "occurrence"
basis, with a limit of not less than One Million Dollars ($1,000,000) per
occurrence and in the aggregate against bodily injury and property damage
liability arising out of the use by or on behalf of Manager, its agents and
employees, in pursuit of the services to be provided by Manager pursuant to the
terms of this Agreement, of any owned, non-owned or hired motor vehicle or
automotive equipment.
Manager shall promptly deliver to Owner, certificates of insurance or other
satisfactory evidence that all required insurance is in full force and effect at
all times. All policies required under this paragraph b. shall provide that the
insurer give Manager and Owner not less than thirty (30) days' advance notice of
any proposed cancellation or material change in coverage or non-renewal. The
liability policies required under subsection b.iii, shall cover Owner as
additional insured.
3. Conditions. Owner's obligations under paragraphs 1 and 2 are upon the
condition that Manager:
a. Notifies Owner within 72 hours after Manager receives notice of any
such loss, damage or injury to the Project or covered by any indemnity in
paragraph 1 or policy carried pursuant to paragraph 2.
b. Takes no action (such as admission of liability) which might bar
Owner from obtaining any protection afforded by any insurance policy Owner may
hold or which might prejudice Owner in its defence to a claim based on such
loss, damage or injury.
c. Agrees that Owner shall have the exclusive right, at its option, to
conduct the defence to any claim, demand or suit within limits prescribed by the
policy or policies of insurance.
d. Cooperate with Owner in disposition of claims, including furnishing
all available information to Owner's carrier.
16
e. Agrees that the foregoing shall not affect the general requirement
of this Agreement that the Project shall be managed, operated and maintained in
a safe condition and in a proper and careful manner.
4. Insurance Provisions. Owner shall include, in its hazard policy covering
the Project, personal property, fixtures and equipment located therein, and
Manager shall include in any fire policies for its furniture, furnishings or
fixtures situated at the Project, appropriate clauses pursuant to which the
respective insurance carriers shall waive all rights of subrogation with
respect to losses payable under such policies. If such clauses are available and
obtained in the respective insurance policies of Owner and Manager, each of
Owner and Manager waive any claims against the other covered by their respective
aforementioned policies of insurance.
5. Third Party Insurance. If requested by Owner, Manager shall require that
all contractors and service companies in or on the Project maintain such
workers' compensation, employer's liability and comprehensive general liability
insurance as may be required by Owner, including any special coverages required
by Owner in connection with hazard operations.
6. Manager Indemnity. Manager shall protect, defend, indemnify and hold
harmless Owner, its members, officers and managers and the Project from and
against any and all loss, cost, damage, liability and expense (including court
costs and reasonable attorneys' fees) arising out of the failure of Manager or
any of its agents, officers, employees or representatives to comply with or
perform Manager's duties and obligations under this Agreement in accordance with
the terms hereof or by reason of any act or omission of Manager or of any of its
agents, officers, employees or representatives, which act or omission is
negligent, willful or outside the scope of Manager's authority as provided
herein (including, without limitation, any such act or omission with respect to
Manager's employees resulting in such cost, loss, damage, liability or expense).
The provisions of this Section 6 shall survive the expiration or termination of
this Agreement.
ARTICLE X. TERMINATION OF AGREEMENT
1. Termination by Owner. Owner may terminate this Agreement upon written
notice of termination to Manager effective on receipt thereof by Manager (or on
such later date as set forth in such notice) at any time after:
a. Default. Failure by Manager to perform any of its obligations
hereunder, including without limitation its obligation to manage, operate and
maintain the Project as an Institutional Quality Building, and the failure of
Manager to cure the same within 10 days after written notice by Owner of such
default when the default ("MONETARY DEFAULT") is the failure to pay a sum
payable hereunder and the failure of Manager to cure the same within 30 days
after written notice by Owner of such default when the default ("NON-MONETARY
DEFAULT") is other than a Monetary Default, unless such Non-Monetary Default is
of such a nature as to reasonably require more than 30 days to cure and Manager
has not commenced to cure such default within said 30-day period and thereafter
diligently prosecuted the same to completion.
b. Bankruptcy or Dissolution. The occurrence of any of the following
with respect to Manager: (1) the commencement of a case under Title 11 of the
U.S. Code, as now
17
constituted or hereafter amended, or under any other applicable federal or state
bankruptcy law or other similar law (which, in the case of an involuntary
proceeding, is not contested or is not dismissed within 90 days); (2) the
appointment of a trustee or receiver of any property interest (which, in the
case of an involuntary appointment, is not contested or is not set aside within
90 days); (3) an assignment for the benefit of creditors; (4) an attachment,
execution or other judicial seizure of a substantial property interest (which is
not contested or is not set aside within 90 days); (5) the taking of, failure to
take, or submission to any action indicating (after reasonable investigation) an
inability to meet its financial obligations as they accrue; or (6) a dissolution
or liquidation.
c. Change in Ownership or Control. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III, or any
entity or persons controlled by, controlling or under common control with ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇ III, (1) ceases to be a member of Owner, or (2) ceases to control and
own more than 30% of the interests in the general partner of Manager, directly
or indirectly.
d. Sale. All or substantially all of the land and improvements
included in the Project shall have been disposed of or sold, or sale of all or
substantially all of the direct or indirect ownership interests in Owner, other
than to an Affiliate of Owner.
e. Casualty or Condemnation. Owner permanently discontinues the
operation of the Project on account of damage to or destruction of, or a taking
by (or sale under threat of) eminent domain of, a substantial part of the
Project.
f. Fraud, Misrepresentation. Any act which constitutes fraud,
misrepresentation or breach of trust by Manager.
g. Loan Default. Anything in this Agreement to the contrary
notwithstanding, Owner may terminate this Agreement, without any penalty or fee
(other than accrued and unpaid fees payable under the terms of this Agreement),
if there exists and is continuing an "Event of Default" as defined under the
Loan Documents.
h. Trigger Event. Anything in this Agreement to the contrary
notwithstanding, Owner may terminate this Agreement, without any penalty or fee
(other than accrued and unpaid fees payable under the terms of this Agreement),
upon the occurrence of a "Trigger Event" as defined under the Company Agreement.
i. Lender Right. Anything in this Agreement to the contrary
notwithstanding, Owner may terminate this Agreement without any penalty or fee
(other than accrued and unpaid fees payable under the terms of this Agreement),
upon the occurrence of any event which gives rise to the right of any of the
lenders under the Loan Documents to require the termination of this Agreement.
2. Termination by Manager. Manager may terminate this Agreement (by at
least 10 days' prior written notice termination to Owner) at any time after:
a. Default. Default by Owner hereunder and the failure of Owner to
cure the same within 10 days after written notice by Manager of such default
when the default is Monetary Default and the failure of Owner to cure the same
within 30 days after written notice
18
by Manager of such default when the default is a Non-Monetary Default, unless
such Non-Monetary Default is of such a nature as to reasonably require more
than 30 days to cure and Owner has not commenced to cure such default within
said 30-day period and thereafter diligently prosecuted the same to completion.
b. Sale. All or substantially all of the land and improvements
included in the Project shall have been disposed of or sold, other than to an
Affiliate of Owner.
c. Casualty or Condemnation. Owner permanently discontinues the
operation of the Project on account of damage to or destruction of, or a taking
by (or sale under threat of) eminent domain of, a substantial part of the
Project.
d. Limitation. Notwithstanding anything to the contrary contained in
this Agreement, Owner shall not be deemed in default and Manager shall continue
performance of its obligations hereunder, in the event of non-payment of the
Management Fee and/or Reimbursements to Manager, if such non-payment is due to
the subordination of the rights to such payment to the payments required under
the New Subordinated Debt.
3. Effect of Termination.
a. Termination of this Agreement shall terminate all rights and
obligations of the parties hereunder, except that such termination shall not
prejudice the rights of either party against the other for any breach of this
Agreement. Without limitation on the generality of the foregoing, Owner's
termination of this Agreement shall terminate any and all rights of Manager to
act on behalf of or with respect to the Project (and Manager shall, if Owner so
requests, execute a notice to third parties that Manager's rights have been so
terminated). To the extent applicable, Owner shall remain liable to Manager for
all Management Fees and Reimbursements earned or incurred prior to the date of
termination.
b. Final Accounting. Upon the expiration of the Term or any earlier
termination as herein provided, Manager shall forthwith (a) deliver to Owner a
final accounting; (b) surrender and deliver up to Owner possession of the
Project and all rents and income, including tenant security deposits, of the
Project and other monies of Owner on hand and in any bank account (including the
Special Account and the Security Account); (c) deliver to Owner, as received,
any monies due Owner under this Agreement and received after such termination;
(d) deliver to Owner all materials and supplies, keys, contracts and documents,
and such other accounting papers and records pertaining to this Agreement as
Owner shall request; (e) assign any right Manager ▇▇▇ have in and to any
existing contracts relating to the operation and maintenance of the Project as
Owner shall require; (f) deliver to Owner, or Owner's duly appointed agent, all
books and records, contracts, leases, receipts for deposits and unpaid bills and
(g) vacate the office of the building. Manager shall use commercially reasonably
efforts to effect an orderly transition of the management and operation of the
Project upon expiration of the Term or any earlier termination.
ARTICLE XI. GENERAL PROVISIONS
1. Independent Contractor. It is expressly understood and agreed that
Manager will act as an independent contractor in performance of this Agreement.
19
2. Notice. All notices, demands and reports provided for in this
Agreement shall be in writing and shall be personally served or sent by
certified or registered mail, return receipt requested, postage prepaid to the
parties at their respective addresses for notice set forth after their
signatures to this Agreement or to such other address as either may provide to
the other by written notice. For purposes of this Agreement notices will be
deemed to have been "given" upon personal delivery thereof or 48 hours after
having been deposited in the United States mail first-class postage prepaid and
properly addressed.
3. Attorneys' Fees. If suit or action is instituted in connection with
any controversy arising out of this Agreement, the prevailing party shall be
entitled to recover, in addition to costs, such sum as the court may adjudge
reasonable as attorneys' fees in such suit or action and on any appeal from any
judgment or decree entered therein.
4. Non-Assignability. This Agreement and the rights and obligations
hereunder, shall not be assignable by Manager, except to an Affiliate which
satisfies the ownership and control criteria set forth for Manager in Article
X.1(c), without the written consent of Owner. The foregoing sentence shall not
extend to assignments required by an insurance carrier in any matter relating to
subrogation. Manager may subcontract with third parties to assist in carrying
out the duties of Manager as provided in Article VI.1 hereof. Owner may freely
assign its rights and obligations under this Agreement.
5. Amendments. Except as otherwise provided herein, all amendments to
this Agreement shall be in writing and executed by the party to be charged.
6. Integration. This Agreement, and the Schedules attached hereto and
made a part hereof, supersede and take the place of any and all previous
management agreements entered into between the parties hereto relating to the
Project.
7. Governing Law. This Agreement is executed with respect to a project
located in the State of California but shall be governed by and construed in
accordance with the laws of the State of New York. To the fullest extent
permitted by law, each party hereto hereby irrevocably consents and agrees, for
the benefit of each party, that any legal action, suit or proceeding against it
with respect to its obligations, liabilities or any other matter under or
arising out of or in connection with this Agreement, shall be brought in any
city, state or federal court located in the Borough of Manhattan, The City of
New York (the "Designated Courts"), and hereby irrevocably accepts and submits
to the jurisdiction of the Designated Courts (and of the appropriate appellate
courts) of each such Designated Court with respect to any such action, suit or
proceeding. Each party hereto also hereby irrevocably consents and agrees, for
the benefit of each other party, that any legal action, suit or proceeding
against it shall be brought in any Designated Court, and hereby irrevocably
accepts and submits to the exclusive jurisdiction of each such Designated Court
with respect to any such action, suit or proceeding. Each party hereto waives
any objection which it may now or hereafter have to the laying of venue of any
of the aforesaid actions, suits or proceedings brought in any such Designated
Court and hereby further waives and agrees not to plead or claim in any such
Designated Court that any such action, suit or proceeding brought therein has
been brought in an inconvenient forum. Each party agrees that (i) to the fullest
extent permitted by law, service of process may be effectuated hereinafter by
mailing a copy of the summons and complaint or other pleading by certified mail,
20
return receipt requested, at its address set forth below and (ii) all notices
that are required to be given hereunder may be given by the attorneys for the
respective parties.
8. Cooperation. Should any claim, demand, action or other legal proceeding
arising out of matters covered by this Agreement be made or instituted by any
third party against a party to this Agreement, the other party to this
Agreement shall furnish such information and reasonable assistance in defending
such proceeding as may be reasonably required by the party against whom such
proceeding is brought.
9. Waiver of Rights. No waiver by either party of any default of the other
party or of any event, circumstance or condition permitting a party to
terminate this Agreement shall constitute a waiver of any other default of the
other party or of any other event, circumstance or condition permitting such
termination, whether of the same or of any other nature or type and whether
preceding, concurrent or succeeding. No failure on the part of either party to
exercise any right it may have by the terms hereof or by law upon the default
of the other party and no delay in the exercise of such right shall prevent the
exercise thereof by the non-defaulting party at any time when the other party
may continue to be so in default, and no such failure or delay and no waiver of
default shall operate as a waiver of any other default, or as a modification
in any respect of the provisions of this Agreement. The subsequent acceptance
of any payment or performance pursuant to this Agreement shall not constitute a
waiver of any preceding default by a defaulting party or of any preceding
event, circumstance or condition permitting termination hereunder, other than
default in the payment of the particular payment or the performance of the
particular matter so accepted, regardless of the non-defaulting party's
knowledge of the preceding default or the preceding event, circumstance or
condition, at the time of accepting such payment or performance, nor shall the
non-defaulting party's acceptance of such payment or performance after
termination constitute a reinstatement, extension or renewal of this Agreement
or revocation of any notice or other act by the non-defaulting party.
10. Successors and Assigns. This Agreement and each of the provisions
hereof shall be binding upon and insure to the benefit of the parties hereto
and their respective heirs, executors, administrators, and permitted successors
and assigns.
11. Non-Discrimination. There shall be no discrimination against or
segregation of, any persons, or groups of persons on account of sex, sexual
orientation, age, race, color, creed, religion, marital status, national
origin, or ancestry in the leasing, sublease, transfer, use, occupancy, tenure
or enjoyment of the Project, nor shall Owner, Manager, or any person claiming
under or though them, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location,
number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees
on the land.
12. Subordination. This Agreement shall be and remain absolutely and
unconditionally subordinate to any valid recorded deed of trust on the Project
whether already or hereafter recorded and to the New Subordinated Debt, and to
any refinancing of the foregoing. The subordination of this Agreement shall
require the execution of no further documentation, but Manager agrees to
execute any reasonable subordination agreement which Owner requests Manager to
execute.
21
13. Limitation of Liability. No member, manager or officer of Owner shall
be personally liable in any manner or to any extent under or in connection with
this Agreement, and Manager and its successors and assigns and, without
limitation, all other persons, partnerships, corporations and entities shall
look solely to the assets constituting the Project for the satisfaction of any
claims or judgments. The limitation of liability provided in this Paragraph 13
is in addition to, and not in limitation of, any limitation of liability
applicable to Owner's members, managers and officers provided by law or by any
other contract, agreement or instrument.
14. Time of Essence. Time is of the essence of this Agreement.
15. Approvals and Consents. Except as otherwise provided herein, all
approvals and consents requested of Owner may be withheld in the sole and
absolute, but good faith, discretion of Owner, unless the provision requiring
such consent or approval specifically provides that Owner shall not withhold
such consent or approval unreasonably.
16. Acknowledgements. Manager (i) acknowledges that it is aware that it is
dealing with a limited liability company formed under the laws of Delaware and
(ii) agrees that in any subsequent action against Owner, Manager will proceed
only against Owner or its successors and assigns and not against any member,
manager or officer thereof.
17. Loan Agreement. Anything in this Agreement to the contrary
notwithstanding and in addition to any requirements hereunder or under the
Company Agreement, Manager agrees to cooperate with Owner and Lender in
providing such budgets, financial reports and other information concerning the
operation of the Mortgaged Property (as defined in the Loan Agreement) which
Owner is required to provide Lender under the terms of the Loan Agreement,
including, but not limited to, under Section 5.1(j) of the Loan Agreement, and
agrees to do so in a timely manner in order that such budgets, financial reports
and other information may be provided by Owner to Lender within the time periods
called for under the terms of the Loan Agreement.
18. Conflicts. In the event of any conflict between the provisions of this
Agreement and the provisions of the Company Agreement, the provisions of the
Company Agreement shall prevail.
22
IN WITNESS WHEREOF, Owner and Manager have executed this Management
Agreement has of the day and year first above written.
OWNER:
LIBRARY SQUARE ASSOCIATES, LLC,
a Delaware limited liability company
By: BUNKER HILL SENIOR MEZZANINE, LLC
a Delaware limited liability company
Its Member
By: BUNKER HILL JUNIOR MEZZANINE, LLC
a Delaware limited liability company
Its Member
By: BUNKER HILL EQUITY, LLC,
a Delaware limited liability company
Its Member
By: ▇▇▇▇▇▇▇ PARTNERS BGHS, LLC
a California limited liability company
Its Authorized Member
By: ▇▇▇▇▇▇▇ PARTNERS SCS, INC.
a California corporation
Its Manager
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
-------------------------
Name:
-----------------------
Title:
-----------------------
Address for Notices:
c/o Maguire Partners
▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
23
MANAGER:
▇▇▇▇▇▇▇ PARTNERS DEVELOPMENT, LTD.,
a California limited partnership
By: ▇▇▇▇▇▇▇ PARTNERS MANAGEMENT COMPANY, LLC,
a California limited liability company
its general partner
By: ▇▇▇▇▇▇▇ PARTNERS SCS, INC.,
a California corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
-----------------------
Name:
----------------------
Title:
---------------------
Address for Notices:
c/o Maguire Partners
▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
24
SCHEDULE 1
PROPERTY DESCRIPTION
25
SCHEDULE 2
COMPENSATION
Owner agrees to pay to Manager for all of the services required of Manager
pursuant to this Agreement, a management fee at such time and in the amount set
forth below.
Project Management Fee. Commencing on this first (1st) day of the second
month of the initial term and continuing on the first day of each month
thereafter until otherwise provided herein, Manager shall be paid a monthly fee
for Project management services equal to three percent (3%) of the monthly
Project Income (as defined in Article VIII.1 of this Agreement) from the prior
month. In the event of the termination of this Agreement as provided in Article
X hereof, the compensation of Manager shall be prorated as of the effective date
of such termination.
Tenant Improvement Coordination Fee. Manager may provide tenant improvement
coordination services for tenants for the initial improvement of premises for
such tenants' occupancy, or with respect to any tenant premises after initial
occupancy, and shall be entitled to retain fees paid for such services by such
tenant(s), but none of such fees shall exceed an amount equal to ten percent
(10%) of the cost of the applicable tenant improvements.
26
SCHEDULE 3
SCHEDULE OF EMPLOYEES
2002 Estimated Total Compensation
(to be adjusted to reflect fair
Job Title market compensation)
--------- ---------------------------------
Asset Manager $125,000 per annum
Operations Manager $90,000 per annum
Associate Asset Manager $54,000 per annum
Transportation Coordinator/Concierge $51,100 per annum
Secretary $37,200 per annum
Data Processing $35,800 per annum
Receptionist $31,000 per annum
SCHEDULE 4
NON-REIMBURSABLE PERSONNEL
Partner
Asset Management Executive/Vice President
Financial Officer
Controller
Accounting & Payable/Receivable Bookkeepers
Collection Personnel
Off-Site Secretaries & Receptionists
Off-Site Engineering & Maintenance Supervisors
Marketing/Public Relations Vice President
Leasing Coordinator
28
SCHEDULE 5
INTENTIONALLY OMITTED
29
SCHEDULE 6
ACCOUNTING AND REPORTING
Statements, Reports and Documents Frequency
--------------------------------- ------------
Cash Receipts Journal Monthly
Cash Disbursements Journal Monthly
General Ledger Monthly
Trial Balance Monthly
Paid Invoices Monthly
Journal Entry Listing Monthly
Accounts Receivable Monthly
Accounts Payable and Accrued Expenses Monthly
Bank Statement and Reconciliation Monthly
Management Commentary, Occupancy and
Income/Expense Variance Analysis Monthly
Occupancy Report Rent Roll* Monthly
Delinquency Report Monthly
Statement of Net Cash Flow Monthly
Cash Flow Forecasts Quarterly
Supporting Documentation for Payroll
Taxes and Employee Benefits Monthly
Executed Leases Monthly
Lease Summaries Monthly
Lease Commission Agreement Monthly
Tenant Construction Allowances Monthly
Major Capital Expenditures Monthly
Tenant Sales Reports (if applicable) Monthly
Real Estate Tax Bills As Available
Real Estate Tax Assessments As Available
Real Estate Tax Escrow Activity As Available
*Which shall, among other matters, identify which tenants are affiliates or
tax-exempt entities and state the square footage occupied by each.
30
SCHEDULE 7
INSTITUTIONAL QUALITY BUILDINGS
"Institutional Quality Buildings" means Class "A" high rise commercial
office buildings located in Central Business District of downtown Los Angeles
and shall include, without limitation:
▇▇▇▇▇ Fargo Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ Plaza
31
ORIGINAL BGHS NOTE ON FILE WITH ▇▇▇▇▇▇▇ PARTNERS
SCHEDULE 3.3
MEMBERSHIP INTERESTS, CAPITAL CONTRIBUTIONS, PERCENTAGE INTERESTS
Address Capital Contribution
-------- --------------------
Managing Member Interest Holder
-------------------------------
RECP Library LLC c/o DLJ Real Estate Capital Partners, Inc. $60,000,000
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
Regular Member Interest Holder
------------------------------
▇▇▇▇▇▇▇ Partners-Hope Place, Ltd. c/o Maguire Partners 25% Limited Liability
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, Company Interest in
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Borrower
▇▇▇▇▇▇▇ Partners BGHS, LLC c/o Maguire Partners 75% Limited Liability
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ Company Interest in
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Junior Mezzanine
Borrower
SCHEDULE 4.4(a)
REPRESENTATIVES OF THE ▇▇▇▇▇▇▇ MEMBERS
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
c/o Maguire Partners
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
SCHEDULE 4.4(b)
REPRESENTATIVES OF RECP
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇/▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ Avenue of the Stars
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
INCOME STATEMENT (ACCRUAL) Page ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ASSOCIATES, LLC - (2010) 3/25/2002
JAN 2002 10:01 AM
MONTH TO DATE % YEAR TO DATE %
------------- ------ ------------ ------
INCOME
OFFICE RENTALS
BASE RENT 3,199,171.54 65.88 3,199,171.54 65.88
OVERSTANDARD PROP TAX 49,805.61 1.03 49,805.61 1.03
STORAGE 14,402,43 0.30 14,402,43 0.30
RENT RELIEF -197.281.67 -4.06 -197.281.67 -4.06
------------ ------ ------------ ------
TOTAL OFFICE RENTALS 3,066,097.91 63.14 3,066,097.91 63.14
RETAIL RENTALS
RETAIL BASE RENT 122,077.25 2.51 122,077.25 2.51
PERCENTAGE RENT 3,989.95 0.08 3,989.95 0.08
RETAIL OVERSTANDARD PROP TAX 4,847.62 0.10 4,847.62 0.10
------------ ------ ------------ ------
TOTAL RETAIL RENTALS 130,914.82 2.70 130,914.82 2.70
OPER. & PROP. TAX ESCALATIONS
OFFICE ESCALATIONS 1,057,849.83 21.79 1,057,849.83 21.79
RETAIL ESCALATIONS 35,026.37 0.72 35,026.37 0.72
------------ ------ ------------ ------
TOTAL OPER. & PROP. TAX ESCA 1,092,876.20 22.51 1,092,876.20 22.51
TENANT REIMBURSEMENTS
ELECTRICAL 5,012.93 0.10 5,012.93 0.10
ELECTRICAL - EXPENSE -4,359.07 -0.09 -4,359.07 -0.09
SIGNS 6,425.65 0.13 6,425.65 0.13
SIGNS - EXPENSE -5,587.52 -0.12 -5,587.52 -0.12
KEYS 3,739.89 0.08 3,739.89 0.08
KEYS - EXPENSE -3,251.96 -0.07 -3,251.96 -0.07
ACCESS CARDS 895.00 0.02 895.00 0.02
ACCESS CARDS - EXPENSE -347.39 -0.01 -347.39 -0.01
LIGHT BULBS 3,630.54 0.07 3,630.54 0.07
LIGHT BULBS - EXPENSE -3,156.99 -0.07 -3,156.99 -0.07
ENGINEERING/MAINTENANCE 5,024.19 0.10 5,024.19 0.10
ENGINEERING/MAINT. - EXPENSE -4,369.11 -0.09 -4,369.11 -0.09
FREIGHT ELEVATOR 2,130.00 0.04 2,130.00 0.04
FREIGHT ELEVATOR - EXPENSE -1,852.17 -0.04 -1,852.17 -0.04
AIR CONDITIONING 60,470.95 1.25 60,470.95 1.25
AIR CONDITIONING - EXPENSE -52,583.45 -1.08 -52,583.45 -1.08
SECURITY SERVICE 4,441.50 0.09 4,441.50 0.09
SECURITY SERVICE - EXPENSE -3,862.17 -0.08 -3,862.17 -0.08
JANITORIAL SERVICE 8,819.44 0.18 8,819.44 0.18
JANITORIAL SERVICE - EXPENSE -7,669.08 -0.16 -7,669.08 -0.16
GENERAL BUILDING 42,563.43 0.88 42,563.43 0.88
GENERAL BUILDING - EXPENSE -37,011.68 -0.76 -37,011.68 -0.76
UTILITIES 17,612.95 0.36 17,612.95 0.36
UTILITIES - EXPENSE -17,612.95 -0.36 -17,612.95 -0.36
MISC. TENANT REIMBURSEMENTS 8,790.25 0.18 8,790.25 0.18
MISC. TENANT REIMB. - EXPENSE -8,790.25 -0.18 -8,790.25 -0.18
LEGAL FEES 184.35 0.00 184.35 0.00
LEGAL FEES - EXPENSE -160.30 0.00 -160.30 0.00
------------ ------ ------------ ------
TOTAL TENANT REIMBURSEMENT 19,126.98 0.39 19,126.98 0.39
PARKING INCOME
PARKING INCOME 219,415.13 4.52 219,415.13 4.52
PARKING INCOME - WESTLAWN 315,669.92 6.50 315,669.92 6.50
------------ ------ ------------ ------
TOTAL PARKING INCOME 535,085.05 11.02 535,085.05 11.02
OTHER REVENUE
INTEREST INCOME 11,717.16 0.24 11,717.16 0.24
------------ ------ ------------ ------
TOTAL OTHER REVENUE 11,717.16 0.24 11,717.16 0.24
------------ ------ ------------ ------
TOTAL INCOME 4,855,818.12 100.00 4,855,818.12 100.00
OPERATING EXPENSES
INCOME STATEMENT (ACCRUAL) Page ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ASSOCIATES, LLC - (2010) 3/25/2002
JAN 2002 10:01 AM
Month to Date % Year to Date %
--------------- ------- -------------- -------
ESCALATABLES
CLEANING/JANITORIAL
Contract Bldg. Cleaning 125,298.07 2.58 125,298.07 2.58
Window Cleaning Services 17,607.00 0.36 17,607.00 0.36
Contract Waste Removal 3,963.67 0.08 3,963.67 0.08
Cleaning Supplies/Materials 9,848.61 0.20 9,848.61 0.20
Cleaning - Admin. Expenses 61.34 0.00 61.34 0.00
Cleaning - Uniforms 2,087.51 0.04 2,087.51 0.04
Cleaning - Parking Charges 2,799.25 0.06 2,799.25 0.06
Cleaning - Cust. Service Program 2,039.67 0.04 2,039.67 0.04
---------- ---- ---------- ----
TOTAL CLEANING/JANITORIAL 163,705.12 3.37 163,705.12 3.37
BLDG. & GROUNDS - GEN MAINT
Contract Exterminator Services 395.00 0.01 395.00 0.01
Plumbing Materials 550.69 0.01 550.69 0.01
Contract Landscaping Service 1,604.70 0.03 1,604.70 0.03
Nontenant Painting/Decor 115.00 0.00 115.00 0.00
Building Supplies/Materials 3,612.50 0.07 3,612.50 0.07
Plumbing Repairs & Maintenance 1,356.46 0.03 1,356.46 0.03
Sprinkler, Standpipe, Fire Pump 952.65 0.02 952.65 0.02
Interior Building Repairs 4,330.00 0.09 4,330.00 0.09
Exterior Building Repairs 3,635.93 0.07 3,635.93 0.07
Communications 2,239.47 0.05 2,239.47 0.05
Metal Maintenance 3,300.00 0.07 3,300.00 0.07
Other Bldg. & Grounds 296.13 0.01 296.13 0.01
Signage 4,082.83 0.08 4,082.83 0.08
Filters 580.75 0.01 580.75 0.01
Lock Repair 746.56 0.02 746.56 0.02
City/State Testing, Cert., & Permits 20,306.16 0.42 20,306.16 0.42
---------- ---- ---------- ----
TOTAL BLDG. & GROUNDS - GEN. 48,104.83 0.99 48,104.83 0.99
HVAC MAINT. & REPAIRS
Contract Engineering 61,548.55 1.27 61,548.55 1.27
Contract Engineering - Uniforms 625.86 0.01 625.86 0.01
Contract Engr. - Parking Charges 1,830.00 0.04 1,830.00 0.04
Engineering - Cust. Service Program 457.05 0.01 457.05 0.01
Air Conditioning Repairs 2,562.06 0.05 2,562.06 0.05
HVAC Supplies/Materials 1,067.87 0.02 1,067.87 0.02
Engineering - Admin. Expenses 48.20 0.00 48.20 0.00
Water Treatment 2,996.20 0.06 2,996.20 0.06
Building Automation System 5,696.84 0.12 5,696.84 0.12
---------- ---- ---------- ----
TOTAL HVAC MAINT & REPAIRS 76,832.72 1.58 76,832.72 1.58
ELEVATOR MAINT. & REPAIRS
Contract Elevator Services 44,198.05 0.91 44,198.05 0.91
Elevator Repairs 13,626.91 0.28 13,626.91 0.28
---------- ---- ---------- ----
TOTAL ELEVATOR MAINT & REP 57,824.96 1.19 57,824.96 1.19
ELECTRICAL MAINT & REPAIRS
Electrical Repairs 1,715.23 0.04 1,715.23 0.04
Electrical Supplies 146.19 0.00 146.19 0.00
Lamp Replacement 788.77 0.02 788.77 0.02
---------- ---- ---------- ----
TOTAL ELECTRICAL MAINT & REP 2,650.19 0.05 2,650.19 0.05
UTILITIES
Electricity 168,648.96 3.47 168,648.96 3.47
Gas 1,324.05 0.03 1,324.05 0.03
Diesel Fuel 1,070.00 0.02 1,070.00 0.02
Water 8,203.26 0.17 8,203.26 0.17
---------- ---- ---------- ----
TOTAL UTILITIES 179,246.27 3.69 179,246.27 3.69
SECURITY/LIFE SAFETY
Income Statement (Accrual) Page ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Associates, LLC - (2010) 3/25/2002
Jan 2002 10:01 AM
Month to Date % Year to Date %
------------- ---- ------------ ----
Contract Security Svcs. 67,353.34 1.39 67,353.34 1.39
Sec-Supplies, Materials & Repair 1,281.97 0.03 1,281.97 0.03
Security - Admin. Expenses 459.34 0.01 459.34 0.01
Security - Uniforms 4,216.75 0.09 4,216.75 0.09
Security - Parking Charges 4,290.33 0.09 4,290.33 0.09
Security - Cust. Service Program 1,215.12 0.03 1,215.12 0.03
Security - Other 24,075.63 0.50 24,075.63 0.50
Fire/Life Bldg Materials & Repairs 765.00 0.02 765.00 0.02
---------- ---- ---------- ----
TOTAL SECURITY/LIFE SAFETY 103,657.48 2.13 103,657.48 2.13
WESTLAWN - OPERATING COSTS
Westlawn - Painting & Decor 690.00 0.01 690.00 0.01
Westlawn - Contract Elevator 1,369.84 0.03 1,369.84 0.03
Westlawn - Electrical Repairs 1,205.92 0.02 1,205.92 0.02
Westlawn - Electricity 9,401.96 0.19 9,401.96 0.19
Westlawn - Water 85.48 0.00 85.48 0.00
Westlawn - Testing/Cert./Permits 786.00 0.02 786.00 0.02
Westlawn - Other 2,565.00 0.05 2,565.00 0.05
Westlawn - Contract Security 17,980.47 0.37 17,980.47 0.37
---------- ---- ---------- ----
TOTAL WESTLAWN OPERATING 34,084.67 0.70 34,084.67 0.70
STEPS OPERATING COSTS
Steps - Contract Landscaping 1,839.00 0.04 1,839.00 0.04
Steps - Fountain Maintenance 440.00 0.01 440.00 0.01
Steps - Contract Elevator 5,067.62 0.10 5,067.62 0.10
Steps - General Maintenance 2,653.00 0.05 2,653.00 0.05
---------- ---- ---------- ----
TOTAL STEPS OPERATING COST 9,999.62 0.21 9,999.62 0.21
SHUTTLE/OFFSITE OPER COSTS
Shuttle Service Costs-Offsite Garage 26,053.79 0.54 26,053.79 0.54
Shuttle Costs - Management Fee 340.00 0.01 340.00 0.01
Offsite-Oper Cost-808 S. Olive Garag 15,914.00 0.33 15,914.00 0.33
---------- ---- ---------- ----
TOTAL SHUTTLE/OFFSITE OPER 42,307.79 0.87 42,307.79 0.87
ADMINISTRATION
Wages & Salaries 35,856.09 0.74 35,856.09 0.74
Payroll Taxes & Benefits 7,670.47 0.16 7,670.47 0.16
Management Fees - MP-Development, 149,841.45 3.09 149,841.45 3.09
Bookkeeping Expense 391.77 0.01 391.77 0.01
Bank Charges/Fees 1,350.32 0.03 1,350.32 0.03
Telephone/Answering Svcs. 3,355.86 0.07 3,355.86 0.07
Dues/Subscriptions 1,285.66 0.03 1,285.66 0.03
Postage 6.30 0.00 6.30 0.00
Courier 87.63 0.00 87.63 0.00
Travel & Entertainment 1,185.01 0.02 1,185.01 0.02
Equipment Rental 3,492.43 0.07 3,492.43 0.07
Administration - Computers 216.03 0.00 216.03 0.00
Administration - Supplies/Materials 1,818.48 0.04 1,818.48 0.04
Printing & Copying 157.35 0.00 157.35 0.00
Office Rent 21,529.55 0.44 21,529.55 0.44
Administration - Miscellaneous 1,868.70 0.04 1,868.70 0.04
Concierge Service 1,724.36 0.04 1,724.36 0.04
Transportation System Mgmt. 9,355.96 0.19 9,355.96 0.19
---------- ---- ---------- ----
TOTAL ADMINISTRATION 241,193.42 4.97 241,193.42 4.97
TAXES (OTHER THAN INCOME)
Real Estate Taxes 256,408.73 5.28 256,408.73 5.28
---------- ---- ---------- ----
TOTAL TAXES (OTHER THAN INC) 256,408.73 5.28 256,408.73 5.28
INSURANCE
Property Insurance 104,775.38 2.16 104,775.38 2.16
Liability Insurance 21,730.08 0.45 21,730.08 0.45
---------- ---- ---------- ----
TOTAL INSURANCE 126,505.46 2.61 126,505.46 2.61
INCOME STATEMENT (ACCRUAL)
LIBRARY SQUARE ASSOCIATES, LLC - (2010)
JAN 2002
MONTH TO DATE % YEAR TO DATE %
============= ====== ============ ======
TOTAL ESCALATABLES 1,342,521.26 27.65 1,342,521.26 27.65
NON-ESCALATABLES
Miscellaneous-Non-Escalatable 3,751.28 0.08 3,751.28 0.08
------------ ------ ------------ -----
TOTAL NON-ESCALATABLES 3,751.28 0.08 3,751.28 0.08
LEASING EXPENSES
Travel & Entertainment 2,676.62 0.06 2,676.62 0.06
------------ ------ ------------ -----
TOTAL LEASING EXPENSES 2,676.62 0.06 2,676.62 0.06
ADVERTISING & MARKETING
Tenant Relations 429.35 0.01 429.35 0.01
------------ ------ ------------ -----
TOTAL ADVERTISING & MARKTG 429.35 0.01 429.35 0.01
PROFESSIONAL SERVICES
Legal 19,096.13 0.39 19,096.13 0.39
Tax Accounting Services 2,000.00 0.04 2,000.00 0.04
------------ ------ ------------ -----
TOTAL PROFESSIONAL SERVICE 21,096.13 0.43 21,096.13 0.43
PARKING
Parking Operating Cost 57,316.19 1.18 57,316.19 1.18
Parking Oper. Cost - Westlawn 60,961.47 1.26 60,961.47 1.26
Parking Management Fees 1,100.00 0.02 1,100.00 0.02
Parking Mgmt Fees - Westlawn 1,000.00 0.02 1,000.00 0.02
Parking - Admin. Expenses 4.51 0.00 4.51 0.00
Parking - Uniforms 2,938.72 0.06 2,938.72 0.06
Parking - Cust. Service Program 1,794.72 0.04 1,794.72 0.04
Parking - Parking Costs 5,604.21 0.12 5,604.21 0.12
------------ ------ ------------ -----
TOTAL PARKING 130,719.82 2.69 130,719.82 2.69
------------ ------ ------------ -----
TOTAL NON-ESCALATABLE EXPE 158,673.20 3.27 158,673.20 3.27
------------ ------ ------------ -----
TOTAL OPERATING EXPENSES 1,501,194.46 30.92 1,501,194.46 30.92
------------ ------ ------------ -----
NET OPERATING INCOME/(LOSS) 3,354,623.66 69.08 3,354,623.66 69.08
OTHER EXPENSES
FINANCING EXPENSES
Interest Expense - Note Payable 1,064,293.43 21.92 1,064,293.43 21.92
Other Financing Expenses 2,323.82 0.05 2,323.82 0.05
------------ ------ ------------ -----
TOTAL FINANCING EXPENSES 1,066,617.25 21.97 1,066.617.25 21.97
DEPRECIATION EXPENSE
Depreciation Expense 667,482.00 13.75 667,482.00 13.75
------------ ------ ------------ -----
TOTAL DEPRECIATION EXPENSE 667,482.00 13.75 667,482.00 13.75
AMORTIZATION EXPENSE
Amortization Expense 143,157.00 2.95 143,157.00 2.95
------------ ------ ------------ -----
TOTAL AMORTIZATION EXPENSE 143,157.00 2.95 143,157.00 2.95
FASB RENT ADJUSTMENT
FASB Rent Adjustment 189,596.00 3.90 189,596.00 3.90
Tenant Concessions 3,196,953.00 65.84 3,196,953.00 65.84
------------ ------ ------------ -----
TOTAL FASB RENT ADJUSTMNT 3,386,549.00 69.74 3,386,549.00 69.74
INTEREST INCOME - L&W T.I. LOAN
Interest Income - L&W T.I. Loan -140,705.41 -2.90 -140,705.41 -2.90
------------ ------ ------------ -----
TOTAL INTEREST INCOME - L&W 140,705.41 2.90 140,705.41 2.90
TAKEBACK SPACE EXPENSE
Takeback Space - Expense 11,612.99 0.24 11,612.99 0.24
------------ ------ ------------ -----
TOTAL TAKEBACK SPACE EXP 11,612.99 0.24 11,612.99 0.24
------------ ------ ------------ -----
TOTAL OTHER EXPENSES 5,134,712.83 105.74 5,134,712.83 105.74
INCOME STATEMENT (ACCRUAL) Page ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ASSOCIATES, LLC - (2010) 3/25/2002
JAN 2002 10:01 AM
MONTH TO DATE % YEAR TO DATE %
------------- ------- ------------- -------
OTHER NET OPERATIONS
------------- -------- ------------- --------
NET INCOME (LOSS) -1,780,089.17 -36.56 -1,780,089.17 -36.56
============= ======== ============= ========
▇▇▇▇▇▇▇ PARTNERS
LIBRARY TOWER
2002 BUDGET SUMMARY
2002
TOTAL
-----
REVENUE
OFFICE RENTALS 36,105,609
RETAIL RENTALS 1,707,257
ESCALATION REVENUE 12,698,181
SUNDRY REVENUE 284,338
PARKING REVENUE 6,573,874
OTHER REVENUE 1,279,789
-------------
TOTAL REVENUE 58,649,048
OPERATING EXPENSES
CLEANING/JANITORIAL 2,135,225
BUILDING & GROUNDS 490,395
HVAC MAINTENANCE 1,094,401
ELEVATOR MAINTENANCE 602,379
ELECTRICAL MAINTENANCE 86,010
UTILITIES 2,304,778
SECURITY/LIFE SAFETY 1,236,120
OFF-SITE 503,129
TOWER GARAGE 18,900
WEST LAWN 392,440
STEPS 175,926
INSURANCE 1,647,567
ADMINISTRATION 1,176,733
MANAGEMENT FEE 1,796,683
-------------
SUBTOTAL ESCALATABLE 13,660,686
CSCI 282,099
REAL PROPERTY TAXES 2,307,567
-------------
TOTAL ESCALATABLE 16,250,352
PARKING OPERATIONS 1,717,603
OVERSTANDARD PROP TAX 827,343
NON-ESCALATABLES 48,500
LEASING EXPENSE 142,696
ADVERTISING & MARKETING 75,750
PROFESSIONAL SERVICES 130,250
-------------
NON-ESCAL 2,942,142
-------------
TOTAL EXPENSES 19,192,494
-------------
NET OP INCOME 39,456,554
INTEREST EXP 12,776,145
DEPRECIATION 8,359,089
AMORTIZATION EXP 1,756,452
FASB RENT ADJUSTMENT 5,913,314
TAKEBACK 86,045
INTEREST INCOME (1,688,460)
-------------
NET INCOME 12,253,969
CAPITAL IMPROVEMENTS 1,450,000
TENANT IMPROVEMENTS 2,395,398
LEASING COMMISSIONS 1,279,651
DEFERRED LEGAL FEES 44,509
PRINCIPAL PAYMENTS 2,769,792
INTEREST PAYABLE 0
CAPITAL LEASE PAYABLE (483,903)
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ TI LOAN REPAYMENT (6,611,493)
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ CANCELLATION PAYMENT 7,566,176
TAKEBACK ACCRUAL 1,184,431
ESCALATION ADJUSTMENT 0
PRIOR YEAR PROPERTY TAX 0
CSCI (282,099)
NON-CASH ITEMS (14,340,395)
CAPITAL CONTRIBUTION (1,300,000)
CAPITAL DISTRIBUTION 15,675,995
-------------
NET CASH FLOW 2,905,907
-------------
-------------
APPROVED BY: _____________________________________
▇▇▇▇▇▇▇ PARTNERS AVG OCCUP. 1999 92.0% TOTAL 1,349,231
LIBRARY TOWER AVG OCCUP. 2000 93.6% OFFICE 1,305,925
2002 OPERATING BUDGET AVG OCCUP. 2001 96.1% RETAIL 43,306
------------------------------------------------------------------------
YTD ACTUAL 2001 2001 2002 2002
AS OF 6/30/01 BUDGET PER SF BUDGET PER SF
--------------- ------------ ---------- ------------ ----------
DETAIL OF REVENUE
-----------------
OFFICE BASE RENT 18,747,184 37,526,803 28.74 38,926,553 29.81
OVERSTANDARD PERS PROP TAX ESC 380,357 706,993 0.54 742,719 0.57
STORAGE 71,354 138,020 0.11 169,453 0.13
SUBLEASE RENT 0 0 0.00 0 0.00
RENT CREDITS (2,832,491) (4,105,467) -3.14 (3,733,116) -2.86
-----------------------------------------------------------------------------
TOTAL OFFICE RENTALS 16,366,404 34,266,349 26.24 36,105,609 27.65
RETAIL BASE RENT 722,629 1,449,064 33.46 1,475,388 34.07
PERCENTAGE RENT 65,432 179,123 4.14 147,245 3.40
OVERSTANDARD PERS PROP TAX ESC 43,459 81,213 1.88 84,624 1.95
RETAIL RENT RELIEF 0 0 0.00 0 0.00
-----------------------------------------------------------------------------
TOTAL RETAIL RENTALS 831,520 1,709,400 39.47 1,707,257 39.42
OFFICE ESCAL. OPERATING EXP/R.E. TAX 5,755,995 11,592,367 8.88 12,256,858 9.39
RETAIL ESCAL. OPERATING EXP/R.E. TAX 205,384 409,460 9.46 441,323 10.19
-----------------------------------------------------------------------------
TOTAL ESCALATIONS 5,961,380 12,001,827 8.90 12,698,181 9.41
ELECTRICAL 38,948 20,325 0.02 50,000 0.04
ELECTRICAL EXPENSE (34,609) (17,674) -0.01 (43,478) -0.03
SIGNS 3,809 5,520 0.00 6,000 0.00
SIGNS EXPENSE (3,305) (4,800) 0.00 (5,217) 0.00
KEYS 25,353 37,500 0.03 40,000 0.03
KEYS - EXPENSE (10,534) (32,609) -0.02 (34,783) -0.03
ACCESS CARDS 4,723 6,250 0.00 6,500 0.00
ACCESS CARDS - EXPENSE (3,235) (1,250) 0.00 (1,300) 0.00
LIGHT BULBS 24,762 26,632 0.02 38,000 0.03
LIGHT BULBS - EXP. (21,574) (23,158) -0.02 (33,043) -0.02
ENGINEERING/MAINT. 25,786 110,000 0.08 60,000 0.04
ENGINEERING/MAINT. EXPENSE (17,864) (55,000) -0.04 (30,000) -0.02
ELEVATOR REVENUE 6,314 16,500 0.01 18,000 0.01
ELEVATOR EXPENSE (5,490) (14,348) -0.01 (15,652) -0.01
LATE FEES 86 0 0.00 0 0.00
AIR CONDITIONING 443,265 938,077 0.70 962,791 0.71
AIR CONDITIONING EXP. (383,002) (815,719) -0.60 (837,210) -0.62
SECURITY SERVICE 24,860 30,000 0.02 35,000 0.03
SECURITY SERVICE EXP. (21,014) (26,087) -0.02 (30,435) -0.02
JANITORIAL 40,007 54,276 0.04 68,600 0.05
JANITORIAL EXP. (34,521) (47,196) -0.03 (59,652) -0.04
GENERAL BUILDING 117,887 84,000 0.06 178,000 0.13
GENERAL BUILDING EXP. (102,775) (73,044) -0.05 (154,783) -0.11
UTILITIES REVENUE 103,294 197,960 0.15 201,630 0.15
UTILITIES EXPENSE (103,294) (197,960) -0.15 (201,630) -0.15
MISCELLANEOUS REVENUE 45,350 75,000 0.06 78,000 0.06
MISCELLANEOUS EXPENSE (45,350) (75,000) -0.06 (78,000) -0.06
LEGAL FEE REVENUE 0 0 0.00 0 0.00
LEGAL FEE EXPENSE 0 0 0.00 0 0.00
LOCATION REVENUE 78,200 25,000 0.02 75,000 0.06
LOCATION EXPENSES (3,104) (1,000) 0.00 (8,000) -0.01
-----------------------------------------------------------------------------
TOTAL TENANT REIMBURSEMENTS 192,972 242,195 0.20 284,338 0.22
--------------------- --------------------------- ------------------
▇▇▇▇▇▇▇ PARTNERS AVG. OCCUP. 1999 92.0% TOTAL 1,349,231
LIBRARY TOWER AVG. OCCUP. 2000 93.6% OFFICE 1,305,925
2002 OPERATING BUDGET AVG OCCUP. 2001 96.1% RETAIL 43,306
--------------------- --------------------------- ------------------
================================================================================
YTD ACTUAL 2001 2001 2002 2002
AS OF 6/30/01 BUDGET PER SF BUDGET PER SF
PARKING INCOME - TOWER 1,246,224 2,564,173 1.90 2,635,256 1.95
PARKING INCOME - WEST LAWN 1,815,319 3,680,587 2.73 3,938,618 2.92
-----------------------------------------------------------
PARKING INCOME 3,061,543 6,244,760 4.63 6,573,874 4.87
INTEREST INCOME 144,112 370,332 0.27 292,789 0.22
CASH COLLATERAL INTEREST 0 0 0.00 0 0.00
OTHER INCOME 9 0 0.00 987,000 0.73
-----------------------------------------------------------
TOTAL OTHER INCOME 144,121 370,332 0.27 1,279,789 0.95
-----------------------------------------------------------
TOTAL REVENUES 26,557,939 54,834,863 40.64 58,649,048 43.47
DETAIL OF OPERATING EXPENSES
CONTRACT BUILDING CLEANING 852,488 1,602,674 1.19 1,752,212 1.30
CONTRACT WINDOW CLEANING 55,390 105,038 0.08 90,925 0.07
CONTRACT WASTE REMOVAL 23,680 49,408 0.04 49,094 0.04
SUPPLIES/MAT-CLEANING 51,953 116,590 0.09 117,975 0.09
UNIFORMS-CLEANING 16,381 35,317 0.03 36,577 0.03
PARKING 17,871 40,501 0.03 40,897 0.03
TRAINING/INCENTIVE PROGRAM 16,854 40,200 0.03 40,572 0.03
COMPUTERS-JANITORIAL 866 2,700 0.00 6,973 0.01
-----------------------------------------------------------
CLEANING/JANITORIAL 1,035,484 1,992,428 1.49 2,135,225 1.60
CONTRACT EXTERMINATOR 4,782 7,240 0.01 7,490 0.01
PLUMBING MATERIALS 2,683 6,900 0.01 6,840 0.01
CONTRACT SWEEPING 280 1,600 0.00 0 0.00
CONTRACT LANDSCAPE - EXTERIOR 9,637 49,680 0.04 51,840 0.04
NON TENANT PAINTING 13,967 20,000 0.01 20,700 0.02
BLDNG SUPPLIES/MATERIALS 5,873 19,000 0.01 19,500 0.01
PLUMBING REPAIRS 4,534 11,065 0.01 15,080 0.01
SPRINKLER, STANDPIPE & PUMP 6,152 12,000 0.01 28,600 0.02
BUILDING REPAIRS 59,676 86,550 0.06 86,750 0.06
EXTERIOR REPAIRS 50,853 59,700 0.04 49,960 0.04
COMMUNICATIONS 22,105 33,800 0.03 30,280 0.02
METAL MAINT 25,020 49,274 0.04 50,091 0.04
DOCK 0 0 0.00 0 0.00
UNIFORMS 0 500 0.00 500 0.00
OTHER BUILDING & GROUNDS 1,075 4,975 0.00 2,400 0.00
SIGNAGE 10,018 14,200 0.01 14,700 0.01
FILTERS 3,457 6,300 0.00 6,000 0.00
BANNERS & FLAGS 0 0 0.00 0 0.00
LOCK REPAIRS 3,032 9,558 0.01 9,664 0.01
CITY/STATE CODE REQUIREMENTS 45,541 89,740 0.07 90,000 0.07
CONSULTANTS 0 0 0.00 0 0.00
-----------------------------------------------------------
BUILDING & GROUNDS 268,684 482,082 0.36 490,395 0.37
CONTRACT HVAC ENGINEERING 420,624 792,063 0.59 849,236 0.63
UNIFORM 5,931 9,390 0.01 10,050 0.01
PARKING 8,611 22,865 0.02 22,535 0.02
TRAINING/INCENTIVE PROGRAM 5,967 11,400 0.01 11,484 0.01
A/C REPAIR 53,244 79,293 0.06 79,478 0.06
SUPPLIES/MATERIALS 8,914 17,400 0.01 17,280 0.01
WATER TREATMENT 14,271 32,250 0.02 32,250 0.02
BUILDING AUTOMATION SYSTEM 29,025 60,194 0.04 62,750 0.05
▇▇▇▇▇▇▇ PARTNERS AVG OCCUP. 1998 92.0% TOTAL 1,349,231
LIBRARY TOWER AVG OCCUP. 2000 93.6% OFFICE 1,305,925
2002 OPERATING BUDGET AVG OCCUP. 2001 96.1% RETAIL 43,306
------------------------------------------------------------------------------
YTD ACTUAL 2001 2001 2002 2002
AS OF 6/30/01 BUDGET PER SF BUDGET PER SF
_____________ ______ ______ ______ ______
COMPUTERS-ENGINEERING 1,714 2,700 0.00 9,338 0.01
__________________________________________________________
HVAC MAINT & REPAIRS 548,302 1,027,555 0.76 1,094,401 0.81
CONTRACT ELEVATOR 259,524 524,976 0.39 544,449 0.40
ELEVATOR REPAIRS 15,367 32,820 0.02 57,930 0.04
__________________________________________________________
ELEVATOR MAINT & REPAIRS 274,891 557,796 0.41 602,379 0.44
ELECTRICAL MAINT 26,948 29,860 0.02 33,445 0.02
ELECTRICAL SUPPLIES 9,233 11,350 0.01 13,200 0.01
LAMP REPLACEMENT 20,389 39,800 0.03 39,365 0.03
__________________________________________________________
ELECTRIC MAINT & REPAIRS 56,571 81,010 0.06 86,010 0.06
ELECTRICITY 1,047,404 2,195,104 1.63 2,176,955 1.61
GAS 8,412 6,605 0.00 6,920 0.01
DIESEL 1,841 3,000 0.00 3,000 0.01
WATER 51,763 115,378 0.09 117,903 0.09
__________________________________________________________
UTILITIES 1,109,420 2,320,087 1.72 2,304,778 1.71
CONTRACT SECURITY 410,914 805,705 0.60 1,056,180 0.78
SEC. SUPPLIES/MAT. 5,457 6,000 0.00 7,840 0.01
UNIFORM 18,951 34,293 0.03 43,353 0.03
PARKING 18,352 33,809 0.03 38,320 0.03
TRAINING/INCENTIVE 9,303 23,400 0.02 23,604 0.02
FIRE/LIFE SAFETY 13,333 31,200 0.02 30,600 0.02
FIRE/LIFE SAFETY BLDG MATERIAL 22,095 26,600 0.02 25,400 0.02
COMPUTERS-SECURITY 6,138 6,400 0.00 10,823 0.01
MUNICIPAL FEES 0 0 0.00 0 0.00
CIT/STATE TESTING & CERT 0 0 0.00 0 0.00
__________________________________________________________
SECURITY/LIFE SAFETY 504,542 967,407 0.72 1,236,120 0.92
TOWER GARAGE - PAINT. & DECORATING 749 12,500 0.01 14,300 0.01
TOWER GARAGE - CERT. & TESTING 2,708 4,000 0.00 4,000 0.00
TOWER - FURNITURE & EQUIPMENT 0 600 0.00 600 0.00
__________________________________________________________
TOWER GARAGE OPER. COSTS 3,458 17,100 0.01 18,900 0.01
WEST LAWN - PAINTING & DECOR. 4,140 11,100 0.01 11,700 0.01
WEST LAWN - PLUMBING REPAIRS 0 1,860 0.00 1,800 0.00
WEST LAWN - CONTRACT ELEVATOR 8,066 19,200 0.01 20,249 0.02
WEST LAWN - BUILDING REPAIRS 8,277 22,500 0.02 21,700 0.02
WEST LAWN - ELECTRICAL REPAIRS 727 1,800 0.00 2,100 0.00
WEST LAWN - ELECTRICAL SUPPLIES 2,596 1,800 0.00 1,800 0.00
WEST LAWN - LAMP REPLACEMENT 2,752 5,000 0.00 5,700 0.00
WEST LAWN - ELECTRICITY 67,301 137,100 0.10 137,950 0.10
WEST LAWN - WATER 974 1,834 0.00 2,035 0.00
WEST LAWN - DIESEL FUEL 0 300 0.00 300 0.00
WEST LAWN - FIRE/LIFE SAFETY 454 2,150 0.00 1,500 0.00
WEST LAWN - CERT. & TESTING 934 3,300 0.00 4,110 0.00
WEST LAWN - OTHER 14,899 32,412 0.02 34,848 0.03
WEST LAWN - SECURITY 67,936 143,731 0.11 146,648 0.11
__________________________________________________________
WEST LAWN OPER. COSTS 179,058 384,087 0.27 392,440 0.29
▇▇▇▇▇▇▇ PARTNERS AVG OCCUP. 1999 92.0% TOTAL 1,349,231
LIBRARY TOWER AVG OCCUP. 2000 93.6% OFFICE 1,305,925
2002 OPERATIONS BUDGET AVG OCCUP. 2001 96.1% RETAIL 43,306
YTD ACTUAL 2001 2001 2002 2002
AS OF 6/30/01 BUDGET PER SF BUDGET PER SF
------------- ------ ------ ------ ------
STEPS - CONTRACT LANDSCAPING 20,844 53,400 0.04 50,000 0.04
STEPS - FOUNTAIN MAINTENANCE 3,454 13,560 0.01 13,320 0.01
STEPS - CONTRACT ELEVATOR 48,020 68,650 0.05 71,516 0.05
STEPS - CONTRACT SECURITY 0 0 0.00 0 0.00
STEPS - GENERAL MAINTENANCE 15,456 37,001 0.03 41,090 0.03
-----------------------------------------------------------------
STEPS OPER COSTS 87,773 172,611 0.13 175,926 0.13
SHUTTLE SERVICES 146,795 345,922 0.26 308,079 0.23
SHUTTLE SERVICES-MGT FEE 2,030 4,080 0.00 4,080 0.00
OFFSITE - OPER COST - 808 OLIVE 83,136 166,273 0.12 190,970 0.14
OFFSITE - OPER COST - CITY PARK GARAGE 0 0 0.00 0 0.00
-----------------------------------------------------------------
OFF-SITE PARKING 231,961 516,275 0.38 503,129 0.37
SALARIES 243,440 441,500 0.33 470,910 0.35
PAYROLL TAXES & BENEFITS 41,633 65,000 0.05 75,346 0.06
MANAGEMENT FEES 816,105 1,675,481 1.24 1,796,683 1.33
PAYROLL PROCESSING 2,210 4,500 0.00 4,500 0.00
TELEPHONE & ANSWERING 18,561 31,800 0.02 24,600 0.02
DUES/SUBSCRIPTIONS 1,712 5,925 0.00 5,755 0.00
POSTAGE 702 2,700 0.00 2,500 0.00
TRAVEL & ENTERTAINMENT 16,518 12,000 0.01 17,000 0.01
EQUIPMENT RENTAL 22,710 46,340 0.03 41,545 0.03
SUPPLIES & MATERIALS ADMIN 9,428 20,700 0.02 20,700 0.02
BANK CHARGES & FEES 11,469 21,600 0.02 20,400 0.02
COURIER 789 2,500 0.00 2,500 0.00
PRINTING/COPYING 11,612 21,000 0.02 21,000 0.02
OFFICE RENT 94,523 146,642 0.11 264,511 0.20
TEMPORARY HELP 7,000 4,000 0.00 4,000 0.00
SEMINARS/TRAINING 438 3,500 0.00 3,500 0.00
MISC ADMINISTRATION 14,924 33,867 0.03 33,996 0.03
ADMIN EQUIP REPAIRS 0 0 0.00 0 0.00
ESCALATION FEES 0 11,250 0.01 11,250 0.01
CONCIERGE SERVICE 11,449 20,000 0.01 20,020 0.01
TRANSPORTATION SYST. MGMT. 48,679 94,020 0.07 115,570 0.09
COMPUTER - ADMIN. 7,674 24,900 0.02 17,130 0.01
-----------------------------------------------------------------
ADMINISTRATION 1,381,575 2,689,225 1.99 2,973,416 2.21
TAXES - R/E 1,470,918 2,969,616 2.20 3,030,606 2.25
FRANCHISE FEES 11,977 8,685 0.01 11,977 0.01
BUSINESS TAX 85,371 83,933 0.06 88,896 0.07
PERSONAL PROP TAX 525 2,631 0.00 2,631 0.00
PROPERTY TAX CONSULTING 800 400 0.00 800 0.00
-----------------------------------------------------------------
TAXES 1,569,591 3,065,265 2.27 3,134,910 2.33
INSURANCE PROPERTY 606,547 1,326,683 0.98 1,351,596 1.00
INSURANCE LIABILITY 96,406 191,562 0.14 275,971 0.20
SELF-INSURED RETENTION 13,341 20,000 0.01 20,000 0.01
-----------------------------------------------------------------
INSURANCE 716,294 1,538,245 1.13 1,647,567 1.21
-----------------------------------------------------------------
TOTAL ESCALATABLE EXPENSES 7,967,601 15,811,173 11.70 16,795,596 12.46
OPERATING COST - LIB TWR 366,228 748,299 0.55 778,390 0.58
OPERATING COST - WEST LAWN 374,117 769,935 0.57 767,800 0.57
--------------------- --------------------------- ------------------
▇▇▇▇▇▇▇ PARTNERS AVG OCCUP. 1999 92.0% TOTAL 1,349,231
LIBRARY TOWER AVG OCCUP. 2000 93.6% OFFICE 1,305,925
2002 OPERATING BUDGET AVG OCCUP. 2001 96.1% RETAIL 43,306
--------------------- --------------------------- ------------------
================================================================================
YTD ACTUAL 2001 2001 2002 2002
AS OF 6/30/01 BUDGET PER SF BUDGET PER SF
------------- ------ ------ ------ ------
MANAGEMENT FEE - LIB TWR 9,000 18,000 0.01 13,200 0.01
MANAGEMENT FEE - WEST LAWN 9,000 18,000 0.01 12,000 0.01
TRAINING/INCENTIVE PROGRAM 14,393 36,600 0.03 36,330 0.03
EMPLOYEE PARKING 27,462 57,348 0.04 58,426 0.04
COMPUTERS-PARKING 580 1,200 0.00 6,305 0.00
UNIFORMS-PARKING 18,532 44,274 0.03 45,152 0.03
---------- ----------- ----- ---------- -----
PARKING 819,312 1,693,656 1.24 1,717,603 1.27
COURIER SERVICE 744 1,500 0.00 1,500 0.00
DONATIONS 1,650 5,000 0.00 5,000 0.00
MISC NON-ESCALATABLE 34,469 40,486 0.03 42,000 0.03
---------- ----------- ----- ---------- -----
NON-ESCALATABLES 36,863 46,986 0.03 48,500 0.03
CLASS A & B TAKEBACK REVENUE 0 0 0.00 0 0.00
CLASS A & B TAKEBACK EXPENSE 0 0 0.00 0 0.00
---------- ----------- ----- ---------- -----
CLASS A & B TAKEBACK COSTS 0 0 0.00 0 0.00
SPACE PLANNING PROPOSALS 12,751 29,907 0.02 25,356 0.02
LEASING/T.I. SERVICES 0 0 0.00 0 0.00
TRAVEL & ENTERTAINMENT 25,541 61,000 0.05 106,140 0.08
PUBLIC RELATIONS 0 0 0.00 0 0.00
MISCELLANEOUS 8,308 11,200 0.01 11,200 0.01
---------- ----------- ----- ---------- -----
LEASING 46,600 102,107 0.08 142,696 0.11
TENANT RELATIONS 14 22,750 0.02 22,750 0.02
P.R. AGENCY 14,098 32,000 0.02 30,000 0.02
COMMUNITY RELATIONS 1,392 13,500 0.01 13,000 0.01
ADVERTISING 0 5,000 0.00 5,000 0.00
PHOTOGRAPHY 22,475 5,000 0.00 5,000 0.00
---------- ----------- ----- ---------- -----
ADVERTISING & MARKETING 37,979 78,250 0.05 75,750 0.05
LEGAL 34,840 42,000 0.03 42,000 0.03
TAX RETURN PREP 137,845 42,000 0.03 42,000 0.03
CONSULTANTS 25,500 5,000 0.00 5,000 0.00
ACCOUNTING SERVICES 0 41,250 0.03 41,250 0.03
PROFESSIONAL FEES 0 0 0.00 0 0.00
---------- ----------- ----- ---------- -----
PROFESSIONAL SERVICES 198,185 130,250 0.09 130,250 0.09
---------- ----------- ----- ---------- -----
SUBTOTAL NON-ESC OPER EXPENSES 1,138,938 2,051,249 0.63 2,114,799 0.65
---------- ----------- ----- ---------- -----
TOTAL OPERATING EXPENSES 9,106,540 17,862,422 12.33 18,910,395 13.11
---------- ----------- ----- ---------- -----
NET OPERATING INCOME 17,451,399 36,972,441 28.31 39,738,653 30.36
INTEREST EXPENSE 6,442,714 12,876,485 9.54 12,697,781 9.41
OTHER FINANCING EXPENSES 19,744 26,012 0.02 39,287 0.03
INTEREST EXPENSE - CSCI FINANCING 0 0 0.00 39,077 0.03
DEPRECIATION 4,255,566 8,705,112 6.45 8,641,188 6.40
AMORTIZATION EXP 848,784 1,651,560 1.22 1,756,452 1.30
FASB OFFICE RENT ADJUSTMENT (6,077,880) (12,110,259) -8.98 (1,652,882) -1.23
TENANT CONCESSION (▇▇▇▇▇▇ CANCELLATION PMT 7,140,063 0 0.00 7,566,176 5.61
PRIOR YR ESCALATION ADJUSTMENT 0 0 0.00 0 0.00
▇▇▇▇▇▇▇ PARTNERS AVG OCCUP. 1999 92.0% TOTAL 1,349,231
LIBRARY TOWER AVG OCCUP. 2000 93.6% OFFICE 1,305,925
2002 OPERATING BUDGET AVG OCCUP. 2001 96.1% RETAIL 43,306
-----------------------------------------------------------------------------------------------------------------------------------
YTD ACTUAL 2001 2001 2002 2002
AS OF 6/30/01 BUDGET PER SF BUDGET PER SF
------------- ------ ------ ------ ------
DOUBTFUL ACCOUNT EXPENSE 0 0 0.00 0 0.00
TAKE BACK EXP.-AA & Co. 112,581 198,315 0.15 86,045 0.06
TAKE BACK REV.-AA & Co. 0 0 0.00 0 0.00
TAKE BACK CONCESSION.-AA & Co. 0 0 0.00 0 0.00
NON ESCALATABLE MGMT. FEE 0 0 0.00 0 0.00
INTEREST INCOME-L & W (1,078,132) (2,156,268) -1.60 (1,688,460) -1.25
---------------------------------------------------------------------
NET INCOME (LOSS) 5,817,960 27,781,484 21.51 12,253,969 10.00
CAPITAL IMPROVEMENTS 37,892 0 0.00 0 0.00
COST SAVING CAP/IMPROVEMENTS 0 600,000 0.44 1,450,000 1.07
TENANT IMPROVEMENTS 27,857 2,724,850 2.02 2,395,398 1.78
LEASING COMMISSIONS 306,599 795,828 0.59 1,279,651 0.95
DEFERRED LEGAL FEES 35,065 37,470 0.03 44,509 0.03
PRINCIPAL PAYMENTS 1,273,945 2,591,088 1.92 2,769,792 2.05
INTEREST PAYABLE 17,128 0 0.00 0 0.00
CAPITAL LEASE PAYABLE 0 0 0.00 (483,903) -0.36
CLOSING COSTS (18,500) 0 0.00 0 0.00
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ TI LOAN REPAYMENT (6,611,493) (6,611,493) -4.90 (6,611,493) -4.90
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LEASE CANCELLATION PYMT 0 7,140,063) 5.29 0 0.00
TAKEBACK ACCRUAL 522,737 1,072,161 0.79 1,184,431 0.88
ACCRUALS 1,106,396 0 0.00 0 0.00
PREPAID RENTS (827,666) 0 0.00 0 0.00
ESCALATION ADJUSTMENT 569 715,000 0.53 0 0.00
NON-CASH ITEMS - DEPRECIATION (4,225,566) (8,705,112) -6.45 (8,641,188) 1.00
-AMORTIZATION (848,784) (1,651,560) -1.22 (1,756,452) -1.30
-FASB RENT ADJUSTMENT 6,077,880 12,110,259 8.98 1,652,862 1.23
-INTEREST INCOME 1,078,132 2,156,268 1.60 1,688,460 1.25
---------------------------------------------------------------------
TOTAL NON-CASH ITEMS 2,081,662 3,909,855 2.91 (7,056,318) 2.18
---------------------------------------------------------------------
TOTAL OTHER CASH REQUIREMENTS (2,047,809) 12,974,822 2.91 (5,027,933) 2.18
---------------------------------------------------------------------
TOTAL CASH FLOW 7,865,769 14,806,662 10.97 17,281,902 12.81
PRIOR YEAR PROP TAX (RESERVED) 654,255 654,290 0.48 0 0.00
CASH DISTRIBUTIONS 6,944,033 14,399,605 10.67 15,675,995 11.62
CASH CONTRIBUTIONS (1,371,000) (2,364,456) -1.75 (1,300,000) -0.96
---------------------------------------------------------------------
NET CASH FLOW 1,638,481 2,117,222 1.57 2,905,907 2.15
CASH BEGINNING OF THE PERIOD 9,870,652 9,870,652 7.32 12,047,145 8.93
---------------------------------------------------------------------
CASH AT END OF PERIOD 11,509,131 11,987,874 9.37 14,953,052 11.08
=====================================================================
LIBRARY TOWER
2002 BUSINESS PLAN
PROJECT OVERVIEW
Distinctive, grand and tall, Library Tower gives the Downtown Los Angeles
skyline its crowning character. Encased in a shimmering white pale marble, this
73-story building is easily recognized as the tallest in Los Angeles.
Often the focus of tourists and the media, Library Tower is beautifully
complemented by a lavish outdoor pedestrian walkway, reminiscent of Rome's
Spanish Steps, and a circular fountain with cascading waterways. Strategically
located, Library Tower has 1.3 million rentable sq. ft. and is accessible to all
freeways and commuter rail trains serving the city's main business district.
Library Tower connects lower Bunker Hill at ▇▇▇ ▇▇▇▇▇▇ to upper Bunker Hill at
New Hope Place. Beautifully appointed foliage and carefully selected artwork
complete the serenity and ambience of the project.
Most importantly, MaguirePartners and Building Management's vision to provide a
safe, spotless, and superbly managed building, along with its commitment to
provide an array of diverse amenities, affords Library Tower the ability to
"tower" above the rest in the recently-rebounding, competitive Downtown Los
Angeles leasing market.
Library Tower is not only the focal point of the Downtown Los Angeles area
because of its commanding presence, but also because of its varied tenant
roster, including such prestigious national and international firms and banks,
such as ▇▇▇▇▇▇▇▇, LLP, Commerzbank AG, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP,
Nomura Securities, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney, Sprint Communications, UBS AG (formerly
Swiss Bank) and White & Case. Library Tower also has an array of popular retail
tenants, including the Pacific Northwest's seafood restaurant ▇▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇'▇, Starbuck's Coffee (formerly ▇▇▇▇▇▇ Coffee), Robeks Juice, It's A
Wrap!, Eastern Lobby Shop and the critically-acclaimed Cafe' Pinot.
Library Tower continues to experience low vacancy rates while achieving high
office and retail rental rates. Aggressive leasing efforts in 2001 resulted in
full floor deals on 70, 62 and 61 with favorable economic terms. This trend is
expected to continue next year resulting in increased revenue and an anticipated
lease factor of 96.1% by the close of 2002. Subleasing efforts continue as
SEMPRA attempts to sublease the last three (54, 55, 57) of their 12 floors.
The 2002 Business Plan includes a review of our major sources of revenue and
expenses. To facilitate the analysis of our business plan, a graphic breakdown
of the estimated operating expenses for 2002 has been included. Following is a
detailed discussion of the significant factors affecting revenue, expenses, and
the status of our major vendor contracts, as well as a five-year capital
program.
LEASING
OFFICE
Library Tower's office space enjoys a 94.1% lease factor with only 73,072 sq.
ft. available on a long-term lease basis. The largest contiguous built-out
space available for "direct lease" includes floors 31 and 32, totaling 45,816
sq. ft. As a result of the recent lease up of floors 62 and 61, there are no
longer any raw vacant full floors available in the building.
Of the remaining space available, our Leasing Team has projected to lease
approximately 38,262 rsf of new space, 11,811 rsf of spec space, 3,315 rsf of
expansion space, and 34,991 rsf of renewal space following the timetable below:
ANTICIPATED ANTICIPATED
COMMENCEMENT DATE RSF FLOOR COMMENCEMENT DATE RSF FLOOR
----------------- --- ----- ----------------- --- -----
NEW SPACE - 38,262 RSF RENEWAL SPACE - 34,991 RSF
Nov 2002 - Oct 2007 3,315 rsf 67th Oct 2002 - Sep 2007 17,486 rsf 60th (LACVB)
May 2002 - Apr 2012 24,208 rsf 32nd Oct 2002 - Sep 2012 12,201 rsf 58th (LACVB)
Aug 2002 - Jul 2012 10,739 rsf 23rd Aug 2002 - July 2007 1,408 rsf 58th (NASDA)
Jan 2002 - Dec 2007 3,896 rsf ▇▇▇▇
(▇▇▇▇▇▇▇ ▇▇▇▇▇)
SPEC SPACE 0- 11,811 RSF EXPANSION SPACE - 3,315 RSF
Aug 2002 - July 2012 11,881 rsf 15th Oct 2002 - Sep 2012 3,315 rsf 58th (LACVB)
During 2001, there were a number of successful lease transactions, as noted
below:
- ▇▇▇▇▇ & ▇▇▇▇▇▇ entered into a seven (7) year lease occupying the entire
70th floor (9,599 sq. ft.) with annual 5% increases in the rental rate.
The Landlord contributed $17.00/sq. ft. to minor alterations.
- Sprint Communications signed a five (5) year lease occupying 13,372 sq.
ft. on the 61st floor with annual 5% increases in the rental rate. The
Landlord contributed $28.10/sq. ft. toward their build-out of shell and
core space.
- ClickAction entered into a five (5) year lease occupying 123,958 sq. ft.
on the 62nd floor. The Landlord contributed $30.00/sq. ft. toward their
build-out of shell and core space.
- Holland and Knight executed a Sixth Amendment and expanded into 3,018
sq. ft. on the 20th floor for a total of 16,079 sq. ft. The additional
space will run coterminous with the master lease, scheduled to expire on
March 31, 2006, totaling 38,986 sq. ft.
- Bright & ▇▇▇▇▇ on the 33rd floor extended their lease for an additional
two (2) years at a higher rental rate (from $11.00/sq. ft. to $19.75/sq.
ft.), and increased square footage (1,112 sq. ft.) as a result of the
recent building re-measure.
- Huntington Holdings occupying 3,870 sq. ft. on the 67th floor signed a
five (5) year extension at a higher rental rate (from $5.00/sq. ft. to
$20.00/sq. ft.) and received three (3) months of gross free rent. The
new expiration date of this lease is January 31, 2006.
- Two (2) storage leases were executed on a month-to-month basis on the
14th floor with Holland & Knight, LLP (837 sq. ft.) and ▇▇▇▇▇ & ▇▇▇▇▇▇
(236 sq. ft.), both at $25.00/sq. ft.
RETAIL
------
The current retail lease factor remains at 87.0%. We are currently negotiating
to lease the 568 sq. ft. of available lobby space to Briazz, Inc. The space has
been vacant for over eight years and if executed, would complete the retail
lease up on the lobby level and enhance our tenant amenities.
For the first year since its doors opened in 1992, Library Tower's long-term
tenant ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇'▇ has experienced a slight decrease in sales from
2000 to 2001. The fierce competition for conventions and the reduced number of
overall downtown events have been the major contributors. Despite the recent
decline in sales, tenants from the building and the entire downtown area
continue to patron the restaurant. The Downtown News named ▇▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇'▇ the "2001's Best Power Lunch" and "2001's Best Happy Hour".
Similarly, Cafe Pinot has experienced about a 7% decline in sales from 2000 to
2001. Although they continue to cater large weddings in the gardens and other
special events, Pinot is not generating the level of revenue realized in 2000.
The Downtown News named Cafe Pinot the "Best Outdoor Dining 2001".
REVENUE
OFFICE REVENUE
--------------
The significant increase in office revenue for 2002 is due to a combination of
the following: rent steps for Commerzbank, ▇▇▇▇▇▇ ▇▇▇▇ & MaguirePartners; new
lease transactions including ▇▇▇▇▇ & ▇▇▇▇▇▇, ClickAction, Sprint Communications
and additional space requirements for existing tenants Holland & Knight and
LACVB.
Rent relief will decrease slightly due to credits not realized in 2002 for
White & Case, ▇▇▇▇▇ & Company, Westdeutsche Landesbank and Taiwan Business
Bank, offset by 6.5 months of gross free rent budgeted for ▇▇▇▇▇▇▇▇, LLP.
RETAIL REVENUE
--------------
Retail revenue will increase slightly as a result of rent steps for Robeks
Juice, Starbuck's and projected revenue for new retailer Briazz, which are then
offset by further decreases in percentage rent revenue.
ESCALATION REVENUE
------------------
Escalation revenue includes a full year of operating expense payments from the
following: ▇▇▇▇▇ & ▇▇▇▇▇▇, ▇▇▇▇▇ & Company, Taiwan Business Bank; new tenants
including Click Action and Sprint Communications; an increase in office
escalations by 5.6% (from $11.56/sq.ft. to $12.25/sq.ft.); and an increase in
retail escalations by 7.2% (from $8.83/sq.ft. to $9.51/sq.ft.).
PARKING REVENUE
---------------
The 2002 budget includes a parking rate increase of 5% for both the Tower and
Westlawn Garages effective 4/1/02, with the exception of the Tower VIP Call
down rate scheduled to increase 1/1/02. The portion of additional revenue
attributable to the rate increase is approximately $253,718. Additionally,
$39,679 of parking revenue has been projected for new leases. The balance of
the increase in revenue is due to additional monthlies at Westlawn Garage.
EXPENSES
JANITORIAL
----------
We bid out janitorial services in the first quarter of 2001 and our contract
with American Building Maintenance, Inc. ("ABM") is to expire on December 31,
2001. As a result of the recent negotiation, overhead remained at 2% and profit
increased from 1% to 2%. We anticipate overhead and profit to remain flat from
2001 to 2002.
Due to the janitorial contract negotiations in 2000 (effective 4/1/00 -
3/31/03), the following expenses continue to increase as follows: union labor
increases by $.60/hour and health and welfare benefits increase by 10%. In
addition, we are seeing a significant rise in workers compensation costs in all
industries. ABM Janitorial has presented a 32% increase in this line item alone
for an overall increase in the contract by ($119,019). Each of our janitors
cleans on the average between 41,000 and 46,000 square feet, a slight increase
from last years' average of 40,000 and 45,000 square feet.
Although we continue to purchase supplies from a number of vendors in order to
receive competitive pricing, the budget reflects a 3% increase in supply costs
to respond to the rise in paper products and chemicals ($3,235).
Computer costs have increased by ($4,273) to include a percentage share of
support for all network, computer and printer repairs and maintenance.
Additionally, as parking rates are scheduled to increase April 1, 2002, we will
see a slight rise in employee parking expenses by ($1,896).
ENGINEERING
Our engineering contract with American Building Maintenance, Inc. ("ABM") will
expire December 31, 2001. We bid out engineering services in the second quarter
of 2001, and in doing so, were able to keep the management fee of 3% intact.
Because the Local 501 union contract is scheduled to expire 10/31/01, ABM
Engineering has made a number of assumptions as it relates to cost increases
for 2002. Negotiations are under way and it is anticipated that the new
contract will provide for a 4% wage increase 11/1/01 and 11/01/02, a 10%
increase in health and welfare 11/1/01, and an increase in pension benefits
from $3.25/hr to $3.50/hr 11/1/01 and from $3.50/hr to $3.75/hr 11/1/02 for a
total contract increase of ($37,173).
Computer costs have increased by ($6,638) to include a percentage share of
support for all network, computer and printer repairs and maintenance.
Additionally, as parking rates are scheduled to increase April 1, 2002, we will
see a slight rise in employee parking expenses by ($3,420).
ELEVATOR REPAIRS & MAINTENANCE
In September of 1997, MaguirePartners entered into a 5-year National Contract
with ▇▇▇▇ Elevator Company that included Library Tower, Gas Company Tower and
▇▇▇▇▇ Fargo Center. 2002 expenses will increase by 3.5% per the terms of the
contract in place. Because the expiration of the contract is scheduled for
9/30/02, we will go out to bid in the second quarter of 2002.
In January, we will install lambda door sensors on three (3) of the high zone
down feed shuttles, and three (3) of the high zone low-rise shuttles budgeted
in the amount of $13,500. This is the continuation of an elevator safety
project that commenced in 1996, and will be completed in 2003. By the close of
2001, we will have completed the installation of lambdas on 32 elevators, with
9 remaining.
The budget also reflects the cost of a new tenant amenity program called
Captivate. At the cost of $23,500, flush mounted digital screens will be
installed in 27 of the elevator cabs, bringing up-to-the-minute news and
important building information to our Tenants. Beginning 2003 and each year
thereafter, we will share in the revenue stream generated by participating
advertisers.
UTILITIES
Utility consumption is anticipated to remain fairly flat based on historical
data and 2002 lease assumptions. The Department of Water and Power has reported
that KWH rates are not expected to increase in 2002.
The budget includes a 2% over-standard HVAC rate increase effective January 1,
2002 that will generate greater sundry re-classes, thus contributing to keeping
the overall utility expense flat.
SECURITY
Our security contract with Universal Protection Service ("UPS") is scheduled to
expire December 31, 2001. Effective January 1, 2002 there is a mandatory minimum
wage increase to $6.75 per hour that will have a significant effect on the
starting minimum wage for the security industry. The wage hike will create
increased competition for low wage employees thus continuing to drive wages up,
and decrease the pool of qualified people. In order to ensure that Library Tower
stays on an equal playing field with other premier high-rises in Downtown, we
have budgeted a 2% to 4% increase for all existing posts. Additionally, the
starting wage for a new officer has been increased from $7.25 per hour to $7.75
per hour.
In addition to wage increases for all officers, workers compensation is
anticipated to rise by 26% for an overall increase in contract security by
($44,539). Health benefits, liability insurance and overhead and profit shall
remain flat.
In anticipation of continued heightened security measures resulting from the
World Trade Center terror attacks on September 11, 2001, the budget reflects
four (4) new posts or 450 additional hours of coverage per week.
The cost to restock the inventory of security shirts has been budgeted at
($9,060) as the existing shirts are nearing their useful life.
Computer costs have increased by ($4,423) to include a percentage share of
support for all network, computer and printer repairs and maintenance.
Additionally, as parking rates are scheduled to increase April 1, 2002, we will
see a slight rise in employee parking expenses by ($4,511).
INSURANCE
Property insurance is anticipated to increase by 10% effective 4/1/02, and
liability insurance will increase by 10% effective 6/1/02.
PARKING
We bid out our parking contract in the second quarter of 2001 and awarded
Central Parking with Library Tower and Westlawn parking facilities. The
contracted commenced on August 1, 2001 and will expire on December 31, 2002. As
a result of the new contract in place, we will realize significant savings in
management fees and liability insurance for both locations totaling
approximately $26,335, while health benefits and workers compensation figures
are anticipated to remain flat.
The 911 Teamsters Union recently negotiated for a four (4) year contract
effective June 1, 2001 through May 31, 2005. The most significant change in the
contract resulted in fixed wage increases based on tenure, scheduled over the
next four years. The budget reflects a 5% average wage increase for all
employees totaling approximately ($63,621).
Computer costs have increased by ($5,10-5) to include a percentage share of
support for all network, computer and printer repairs and maintenance.
Additionally, as parking rates are scheduled to increase April 1, 2002, we will
see a slight rise in employee parking expenses by ($1,078).
CAPITAL EXPENDITURES
RETROFIT OF BASE BUILDING FIRE LIFE SAFETY SYSTEM
$1,600,000 (commenced 6/1/2001 - see attached schedule)
The ▇▇▇▇▇▇▇ EST 3 has been on the market for about 3 years and technology wise,
is far more advanced than our original system. The system has a useful life of
12 to 15 years, and the capability to integrate a card access control and CCTV
(security camera) system. ▇▇▇▇▇▇▇ is also developing the technology to provide
smoke detectors with the ability to monitor indoor air quality and integration
capabilities including building automation and lighting control systems.
A full retrofit would take eighteen to twenty-six months and involve removing
the existing Pyrotronics product from the building. All smoke detectors, pull
stations, speakers and strobes will be replaced as part of the retrofit. The EST
3 system will support up to 160,000 points (existing system supports
approximately 3,500). The cost to accomplish a full building retrofit and card
access control integration is approximately $1,600,000.
As a result of the 2000 smoke control system upgrade project, our vertical
infrastructure riser currently has a partial EST wiring backbone and a fair
amount of EST equipment throughout the building, enabling us to utilize and
build upon the existing equipment. The system has superior vendor support
(there are currently 8-12 ▇▇▇▇▇▇▇ factory certified service providers in the
region), resulting in an abundance of resources to respond to repairs and
maintenance issues.
LEASING GUIDELINES
PROJECT MAJOR LEASE TERM ANNUAL NET RENT TENANT
THRESHOLD (PSF) IMPROVEMENTS
---------------------------------------------------------------------------------------------------------------------------------
Library Tower Floors 2-32; leases Up to 10 years between $18.00-$22.00 less than or equal to
up to 50,000 RSF 3% annual increase on $35 RSF
net (or equivalent
income stream)
----------------------------------------------------------------------------------------------------------------------------------
Floors 33-63; leases Up to 10 years between $20.00-$22.00 less than or equal to
up to 50,000 RSF 3% annual increase on $35 RSF
net (or equivalent
income stream)
----------------------------------------------------------------------------------------------------------------------------------
Floors 2-32; leases Up to 10 years between $22.00-$24.00 less than or equal to
up to 50,000 RSF 3% annual increase on $35 RSF
net (or equivalent
income stream)
----------------------------------------------------------------------------------------------------------------------------------
Retail Up to 10 years between $25.00-$25.00 less than or equal to
3% annual increase on $15 RSF
net (or equivalent
income stream)
----------------------------------------------------------------------------------------------------------------------------------
Other items subject to approval:
----------------------------------------------------------------------------------------------------------------------------------
Any term greater than 10 years.
----------------------------------------------------------------------------------------------------------------------------------
Termination options - any
----------------------------------------------------------------------------------------------------------------------------------
Commission: Full to outside up to 10 yrs. More than 10 years requires approval.
----------------------------------------------------------------------------------------------------------------------------------
SCHEDULE 6.8
(a) The Company agrees to, and shall cause each of its
Subsidiaries to, continue to be a Special Purpose Bankruptcy Remote Entity. A
"Special Purpose Bankruptcy Remote Entity" means a corporation, limited
partnership or limited liability company which shall not:
A. engage in any business or activity other than, in the case of the
Company, owning the equity interest in its Subsidiaries, and, in
the case of the Company's Subsidiaries, the ownership of an equity
interest in any other Subsidiary of the Company, or the operation
and maintenance of the Property.
B. acquire or own any material assets other than (I) the Property,
(II) such incidental personal property as may be necessary for the
operation of the Property and (III) an equity interest in any
Subsidiary of the Company;
C. fail to preserve its existence as a Person duly organized, validly
existing and in good standing (if applicable) under the laws of
the jurisdiction of its organization or formation, or amend,
modify, terminate or fail to comply with the provisions of its
Organizational Documents if such amendment, modification,
termination or failure to comply would adversely affect the
ability of such Person to perform its obligations under this
Agreement or under the other Transaction Documents;
D. except as set forth in the Transaction Documents, own any
Subsidiary or make any investment in any Person;
E. commingle its assets with the assets of any of its directors,
managers, partners, members, shareholders, Affiliates, principals
or of any other Person or fail to hold its assets in its own name;
F. incur any liabilities, secured or unsecured, direct or contingent
(including guaranteeing any obligation), other than Indebtedness
in respect of the Transaction Documents and the Loan Documents and
unsecured trade payables incurred in the ordinary course of
business, that are paid within 60 days after the date incurred
unless disputed by the Company in good faith and appropriate
reserves are maintained therefor;
G. fail to maintain its records, books of account and bank accounts
separate and apart from those of its directors, managers,
partners, members, shareholders, principals and Affiliates, the
Affiliates of its general partner, members or shareholders and any
other Person;
H. enter into any contract or agreement with any director, manager, partner,
member, shareholder, principal or Affiliate of the Company or any
director, manager, partner, member, principal of such Affiliate, except in
the ordinary course of business and upon terms and conditions that are
intrinsically fair and substantially similar to those that would be
available on an arms-length basis with third parties other than the
foregoing stated parties;
I. without the consent of the Special Member, seek the dissolution or winding
up, in whole or in part, of the Company or any of the Company's
Subsidiaries;
J. maintain its assets in such a manner that will be costly or difficult to
segregate, ascertain or identify its individual assets from those of any
director, manager, partner, member, shareholder, principal or Affiliate of
Company or any Affiliate thereof or any director, manager, partner,
member, shareholder, principal or Affiliate thereof or any other Person;
K. except as contemplated by the Loan Documents, guaranty or become obligated
for the debts of any other Person, hold out its credit as being able to
satisfy the debts of any other Person, endeavor to obtain credit or incur
any obligation to any Person based upon the assets of any Person other
than itself, pledge its assets for the benefit of any Person or fail to
correct any misunderstanding with respect to the foregoing;
L. make any loans or advances to any Person, including any director, manager,
partner, member, shareholder, principal or Affiliate of the Company or any
of Company's Subsidiaries or any director, manager, partner, member,
shareholder, principal or Affiliate thereof or by or hold evidence of
indebtedness issued by any Person;
M. fail to file its own tax returns;
N. fail either to hold itself out to the public as a legal Person separate
and distinct from any other Person or to conduct its business solely in
its own name in order not (I) to mislead others as to the identity with
which such other party is transacting business, or (II), except as
contemplated by the Transaction Documents, to suggest that Company or any
of its Subsidiaries is responsible for the debts of any third party
(including any director, manager, partner, member, principal or Affiliate
thereof or any director, manager, partner, member, principal or Affiliate
thereof);
O. fail to maintain adequate capital for the normal obligations reasonably
foreseeable in a business of its size and character and in light of its
contemplated business operations;
P. fail to allocate shared expenses (including, without limitation, shared
office space) and to use separate stationary, invoices, phone numbers and
checks;
Q. fail to pay its own liabilities (including, without limitation, salaries of
its own employees, if any) from its own funds;
R. acquire obligations or securities of its managers, partners, members,
shareholders or other affiliates, as applicable;
S. without the unanimous written consent of, in the case of a corporation or
limited liability company, the Special Member or "independent director" or
"independent manager" and, in the case of a limited partnership, the
Special Member, Independent Director or Independent Manager of its general
partner: (a) file or consent to the filing of any petition, either
voluntary or involuntary, to take advantage of any applicable insolvency,
bankruptcy, liquidation or reorganization statute; (b) seek or consent to
the appointment of a receiver, liquidator or any similar official; or (c)
make an assignment for the benefit of creditors;
T. fail to remain solvent or pay its debts and liabilities as the same shall
become due;
U. fail to correct any known misunderstandings regarding the separate identity
of itself from any other Person;
V. fail to maintain separate financial statements and accounting records,
showing its assets and liabilities separate and apart from those of any
other Person;
W. fail to observe all corporate, limited partnership or limited liabilities
company formalities, as applicable;
X. share any logo or hold itself as, or be considered as a department or
division of, any other Person; and
Y. as long as the obligations of Property Owner under the Existing Mortgage
Debt are outstanding, at all times will comply with section 4.1(cc) of the
Second Amendment to the loan agreement evidencing the Existing Mortgage
Debt as they apply to the Company.
(b) The Company shall, and shall cause each of its Subsidiaries and any
Affiliate thereof to, conduct its and their business so that the assumptions
made in that
certain substantive nonconsolidation opinion letter dated the date hereof,
delivered by ▇▇▇, Castle & ▇▇▇▇▇▇▇▇▇ in connection with the transactions
contemplated by this Agreement, shall be true and correct in all material
respects.
SCHEDULE 6.9
▇▇▇▇▇▇▇ MEMBER COVENANTS AND RESTRICTIONS
MP
As described in the Fourth Amendment to the Agreement of Limited
Partnership of MP "[n]otwithstanding anything to the contrary herein, the
Partners agree that, so long as RECP is the "Managing Member" of Bunker Hill
Equity, the Partnership shall not without the prior written consent of
RECP:
(1) engage in any business or activity other than owning an equity interest in
(i) Bunker Hill Equity, and (ii) ▇▇▇▇▇▇▇ Partners-Bunker Hill, Ltd., and
serving as a managing general partner or member in such entities
(collectively, "Hope Place Entities");
(2) acquire or own any other material assets other than owning an equity
interest in the Hope Place Entities;
(3) fail to preserve its existence as a Person duly organized, validly existing
and in good standing (if applicable) under the laws of the jurisdiction of
its formation, or amend, modify, terminate or fail to comply with the
provisions of its Partnership Agreement and Certificate of Limited
Partnership each as may be amended from time to time (collectively,
"Organizational Documents") if such amendment, modification, termination or
failure to comply would adversely affect the ability of such Person or
Bunker Hill Equity to perform its respective obligations under the
Transaction Documents;
(4) own any Subsidiary or make any investment in any Person, other than owning
an equity interest in the Hope Place Entities;
(5) except in connection with owning an equity interest in the Hope Place
Entities, commingle its assets with the assets of any of its directors,
managers, partners, members, shareholders, as applicable, Affiliates,
principals or of any other Person or fail to hold its assets in its own
name;
(6) incur any liabilities, secured or unsecured, direct or contingent
(including guaranteeing any obligation), other than (i) unsecured trade
payables incurred in the ordinary course of business that are paid within
60 days after the date incurred, unless disputed by Partnership in good
faith and appropriate reserves are maintained therefor, and (ii)
liabilities arising as a general partner of Hope Place Entities;
(7) fail to maintain its records, books of account and bank accounts separate
and apart from those of its directors, managers, partners, members,
shareholders, as applicable, principals and Affiliates, the Affiliates of
its director, manager, partner, members or shareholders, as applicable, and
any other Person;
(8) enter into any contract or agreement with any director, manager,
partner, member, shareholder, as applicable, principal or Affiliate of
the Partnership or any director, manager, partner, member, principal
of such Affiliate, except (i) in the ordinary course of business and
upon terms and conditions that are intrinsically fair and
substantially similar to those that would be available on an
arms-length basis with third parties other than the foregoing stated
parties, and (ii) in connection with owning an equity interest in the
Hope Place Entities;
(9) without the consent of the Independent Manager of BGHS, seek the
dissolution or winding up, in whole or in part, of the Partnership;
(10) maintain its assets in such a manner that it will be costly or
difficult to segregate, ascertain or identify its individual assets
from those of any director, manager, partner, member, shareholder, as
applicable, principle or Affiliate of the Partnership or any Affiliate
thereof or any director, manager, partner, member, shareholder,
principal or Affiliate thereof or any other Person;
(11) except in connection with (i) the Loan Documents, (ii) the
organizational documents for the Hope Place Entities, or (iii) holding
an interest in the Hope Place Entities, guaranty or become obligated
for the debts of any other Person, hold out its credit as being able
to satisfy the debts of any other Person, endeavor to obtain credit or
incur any obligation to any Person based upon the assets of any Person
other than itself, pledge its assets for the benefit of any Person or
fail to correct any misunderstanding with respect to the foregoing;
(12) except in connection with (i) the organizational documents for the
Hope Place Entities, or (ii) holding an interest in the Hope Place
Entities, make any loans or advances to any Person, including any
director, manager, partner, member, shareholder, as applicable,
principal or Affiliate of the Partnership or any director, manager,
partner, member, shareholder, principal or Affiliate thereof or hold
evidence of indebtedness issued by any Person;
(13) fail to file its own tax returns;
(14) fail either to hold itself out to the public as a legal Person
separate and distinct from any other Person or to conduct its business
solely in its own name in order not (i) to mislead others as to the
identity with which such other party is transacting business, or (ii)
except as contemplated by the Loan Documents or in connection with
holding an interest in the Hope Place Entities, to suggest that the
Partnership is responsible for the debts of any third party (including
any director, manager, partner, member, as applicable, principal or
Affiliate thereof or any director, manager, partner, member, principal
or Affiliate thereof);
(15) fail to maintain adequate capital for the normal obligations
reasonably foreseeable in a business of its size and character and in
light of its contemplated business operations;
(16) fail to allocate shared expenses (including, without limitation,
shared office space) and to use separate invoices and checks;
(17) fail to pay its own liabilities (including, without limitation,
salaries of its own employees, if any) from its own funds;
(18) except as contemplated in the organizational documents for the Hope
Place Entities or in connection with holding an interest in the Hope
Place Entities, acquire obligations or securities of its managers,
partners, members, shareholders, as applicable, or other Affiliates;
(19) without the written consent of the Independent Manager of BGHS: (a)
file or consent to the filing of any petition, either voluntary or
involuntary, to take advantage of any applicable insolvency,
bankruptcy, liquidation or reorganization statute, (b) seek or consent
to the appointment of a receiver, liquidator or any similar official,
or (c) make an assignment for the benefit of creditors;
(20) fail to remain solvent or pay its debts and liabilities as the same
shall become due;
(21) fail to correct any known misunderstandings regarding the separate
identity of itself from any other Person;
(22) fail to maintain separate financial statements and accounting records
showing its assets and liabilities separate and apart from those of
any other Person;
(23) fail to observe all corporate, limited partnership or limited
liabilities company formalities, as applicable;
(24) without the consent of the Independent Manager of BGHS do any of the
following: (i) liquidate or dissolve, in whole or in part; (ii)
consolidate, merge or enter into any form of consolidation with or
into any other Person, nor convey, transfer or lease its assets
substantially as an entirety to any Person nor permit any Person to
consolidate, merge or enter into any form of consolidation with
itself, nor convey, transfer or lease its assets substantially as an
entirety to any Person; (iii) engage in any activity other than as set
forth in Section 3.7 herein and (iv) amend any of the provisions of
Section 3.7 hereof."
BGHS
As described in the First Amendment to Operating Agreement for BGHS,
"[n]otwithstanding anything to the contrary herein, Company agrees that so long
as RECP is the "Managing Member" of Bunker Hill Equity, Company shall not
without the prior written consent of RECP:
(1) engage in any business or activity other than borrowing and repaying
funds as reflected in the BGHS Loan Documents (as defined below), and
owning equity interests in (i) Bunker Hill Equity, (ii) ▇▇▇▇▇▇▇
Partners-Bunker Hill, Ltd., (iii) ▇▇▇▇▇▇▇ Partners-Hope Place, Ltd.,
and (iv) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners-SCGC Holdings, Ltd. and serving as a
managing general partner or member in such entities (collectively,
"BGHS Entities");
(2) acquire or own any other material assets other than owning an equity
interest in the BGHS Entities;
(3) fail to preserve its existence as a Person duly organized, validly
existing and in good standing (if applicable) under the laws of the
jurisdiction of its formation, or amend, modify, terminate or fail to
comply with the provisions of this Agreement and the Articles
(collectively, "Organizational Documents") if such amendment,
modification, termination or failure to comply would adversely affect
the ability of such Person or Bunker Hill Equity to perform its
respective obligations under the Transaction Documents;
(4) own any Subsidiary or make any investment in any Person, other than
owning equity interests in the BGHS Entities;
(5) except in connection with owning equity interests in the BGHS
Entities, commingle its assets with the assets of any of its
directors, managers, partners, members, shareholders, as applicable,
Affiliates, principals or of any other Person or fail to hold its
assets in its own name;
(6) incur any liabilities, secured or unsecured, direct or contingent
(including guaranteeing any obligation), other than (i) unsecured
trade payables incurred in the ordinary course of business that are
paid within 60 days after the date incurred unless disputed by Company
in good faith and appropriate reserves are maintained therefor,
(ii)obligations pursuant to that certain $34,789,555.00 promissory
note ("Note") from Company in favor of Bunker Hill Equity dated ▇▇▇▇▇
▇▇, ▇▇▇▇, (▇▇▇) obligations under that certain Guaranty ("Senior
Mezzanine Guaranty") from Company in favor of Column Financial, Inc.
dated March 27, 2002 with respect to the Senior Mezzanine Loan, (iv)
obligations under that certain Guaranty ("Junior Mezzanine Guaranty")
from Company in favor of Column Financial, Inc. dated March 27, 2002
with respect to the Junior Mezzanine Loan, (the Note, Senior Mezzanine
Guaranty and Junior Mezzanine Guaranty collectively referred to herein
as "BGHS Loan Documents"), and (v) on account of the general partner
interest of BGHS in the BGHS Entities;
(7) fail to maintain its records, books of account and bank accounts separate
and apart from those of its directors, managers, partners, members,
shareholders, as applicable, principals and Affiliates, the Affiliates of
its director, manager, partner, members or shareholders, as applicable, and
any other Person;
(8) enter into any contract or agreement with any director, manager, partner,
member, shareholder, as applicable, principal or Affiliate of the Company
or any director, manager, partner, member, principal of such Affiliate,
except (i) the BGHS Loan Documents, (ii) in the ordinary course of business
and upon terms and conditions that are intrinsically fair and substantially
similar to those that would be available on an arms-length basis with third
parties other than the foregoing stated parties, and (iii) in connection
with owning an equity interest in the BGHS Entities;
(9) without the consent of the Independent Manager, seek the dissolution or
winding up, in whole or in part, of the Company;
(10) maintain its assets in such a manner that it will be costly or difficult to
segregate, ascertain or identify its individual assets from those of any
director, manager, partner, member, shareholder, as applicable, principal
or Affiliate of the Company or any Affiliate thereof or any director,
manager, partner, member, shareholder, principal or Affiliate thereof or
any other Person;
(11) except in connection with (i) the Loan Documents, (ii) the BGHS Loan
Documents, (iii) the organizational documents for the BGHS Entities, or
(iv) holding an interest in the BGHS Entities, guaranty or become obligated
for the debts of any other Person, hold out its credit as being able to
satisfy the debts of any other Person, endeavor to obtain credit or incur
any obligation to any Person based upon the assets of any Person other than
itself, pledge its assets for the benefit of any Person or fail to correct
any misunderstanding with respect to the foregoing;
(12) except in connection with (i) the organizational documents for the BGHS
Entities, or (ii) holding an interest in the BGHS Entities, make any loans
or advances to any Person, including any director, manager, partner,
member, shareholder, as applicable, principal or Affiliate of the Company
or any director, manager, partner, member, shareholder, principal or
Affiliate thereof or hold evidence of indebtedness issued by any Person;
(13) fail to file its own tax returns;
(14) fail either to hold itself out to the public as a legal Person separate and
distinct from any other Person or to conduct its business solely in its own
name in order not (i) to mislead others as to the identity with which such
other party is transacting business, or (ii) except as contemplated by the
Loan Documents, the BGHS Loan Documents or in connection with holding an
interest in the BGHS Entities, to suggest that the Company is responsible
for the debts of any third party (including any director, manager, partner,
member, as applicable, principal
or Affiliate thereof or any director, manager, partner, member,
principal or Affiliate thereof);
(15) fail to maintain adequate capital for the normal obligations
reasonably foreseeable in a business of its size and character and in
light of its contemplated business operations;
(16) fail to allocate shared expenses (including, without limitation,
shared office space) and to use separate invoices and checks;
(17) fail to pay its own liabilities (including, without limitation,
salaries of its own employees, if any) from its own funds;
(18) except as contemplated in the organizational documents for the BGHS
Entities or in connection with holding an interest in the BGHS
Entities, acquire obligations or securities of its managers, partners,
members, shareholders, as applicable, or other Affiliates;
(19) without the written consent of the Independent Manager: (a) file or
consent to the filing of any petition, either voluntary or
involuntary, to take advantage of any applicable insolvency,
bankruptcy, liquidation or reorganization statute, (b) seek or consent
to the appointment of a receiver, liquidator or any similar official,
or (c) make an assignment for the benefit of creditors;
(20) fail to remain solvent or pay its debts and liabilities as the same
shall become due;
(21) fail to correct any known misunderstandings regarding the separate
identity of itself from any other Person;
(22) fail to maintain separate financial statements and accounting records
showing its assets and liabilities separate and apart from those of
any other Person;
(23) fail to observe all corporate, limited partnership or limited
liabilities company formalities, as applicable;
(24) without the consent of the Independent Manager do any of the
following: (i) liquidate or dissolve, in whole or in part; (ii)
consolidate, merge or enter into any form of consolidation with or
into any other Person, nor convey, transfer or lease its assets
substantially as an entirety to any Person nor permit any Person to
consolidate, merge or enter into any form of consolidation with
itself, nor convey, transfer or lease its assets substantially as an
entirety to any Person; (iii) engage in any activity other than as set
forth in Section 2.6(A)(1) herein and (iv) amend any of the provisions
of Section 2.6 hereof."
SCHEDULE 14.13
Schedule 14.13
▇▇▇▇▇▇▇ PARTNERS
SETTLEMENT STATEMENT
Lender: Column Financial, Inc.
Property: Library Tower
Borrower: Bunker Hill Senior Mezzanine, LLC & Bunker Hill Junior Mezzanine, LLC
Funding Date: 3/27/2002
Mezzanine Financing Amount: $ 109,561,000.00
Plus Refund of Remaining Reserve Balance from Start-Up Investment $ 1,265,730.74
Less Column Financial, Inc. Origination Fee for Start-Up Investment $ (250,000.00)
----------------
Net Refund of Remaining Reserve Balance from Start-Up Investment $ 1,015,739.74
Less Amounts Retained by Column Financial, Inc. ("CFI")
1. Origination Fee to CFI for Mezzanine Financing (1.5% of $109,561,000) $ (1,643,415.00)
2. Repayment of Start-Up Investment
Start-Up Investment Amount $ 5,000,000.00
Less Terrorism Insurance Res. to be held by First Am. Title
(First Am. will retain per escrow instructions) $(2,466,875.00)
--------------
Net Repayment of Start-up Investment to CFI $ (1,541,125.00)
3. Repayment of Accrued Interest on Start-Up Investment
Start-up Investment Amount $ 5,000,000.00
Interest Rate (Ac1/380) 12.60%
Funding Date of Start-up Investment 2/20/2002
# of Days since Funding Date of Start-up Investment 36
--------------
Total Accrued Interest on Start-Up Investment to be paid to CFI (562,500.00)(1)
4. CSFB REFS Placement Fee $ (1,250,000.00)
5. CSFB ▇▇▇▇ Fee $ (500,000.00)
6. Consulting Fee Payable to Column Financial for Rating Agency Approval $ (25,000.00)
7. Miscellaneous Out of Pocket Expenses Incurred by CFI $ (25,000.00)
Total retained by CFI $ (5,047,040.00)
-----------------------------------------------------------------------------------------------------------------------------------
Net loan process to be wired to First American Title Insurance Company $ 105,529,699.74
-----------------------------------------------------------------------------------------------------------------------------------
Plus New Equity Investment From DLJ RECP $ 60,000,000.00
Plus Funds from ▇▇▇▇▇▇▇ at Close
Plus Click Action Lease Termination $ 379,592.77
Plus Tenant Improvement Reserve from ▇▇▇▇▇▇▇ (UBS, ClickAction, Sprint,
▇▇▇▇▇▇▇ River, ILLEGIBLE, ILLEGIBLE Lobby Shops) $ 1,066,616.00
Plus Operating Cash On-Hand at Close $ 178,476.30
----------------
Net Wire Funds from ▇▇▇▇▇▇▇ at Close $ 1,613,585.07
Less Buyout to Daiichi/Delacourt Properties, Inc.
Buyout amount to Daiichi/Delacourt Properties, Inc. $(115,000,000.00)
Plus Discount off Buyout Price $ 3,500,000.00
Less 75% of operating cash with minimum amount of $225,000 $ (225,000.00)
----------------
Net Buyout to Daiichi/Delacourt Properties, Inc. $(111,725,000.00)
Less Funds to DLJ RECP
Less Additional AA Reserve Funds to be Held by DLI RECP $ (4,000,000.00)
Less Origination Fee for New Equity Investment $ (600,000.00)
Miscellaneous Out of Pocket Expenses $ (15,000.00)
----------------
Net Funds to DLJ RECP $ (4,815,000.00)
Less Credit Line Repayment to United California Bank (formerly known
as Sanwa) $ (10,060,000.00)
Less Solana Payment to Servicer on Solana First Mortgage (Salomon
Loan #038220292) $ (6,000,000.00)
Less Reserves & Escrows to be Held by Servicer of First Mortgage,
GMAC
Tenant Improvement Reserve from ▇▇▇▇▇▇▇ (UBS, ClickAction, Sprint,
▇▇▇▇▇▇▇ River, ILLEGIBLE, ILLEGIBLE Lobby Shops) $ (1,055,516.00)
Tax & Insurance escrow $ (285,008.43)
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇-MP Contribution Reserve $ (5,587,823.00)
AA Space Takeback Reserve $ (1,164,603.00)
Engineering Reserves $ (62,030.00)
----------------
Total Reserves $ (6,134,980.43)
Less reserves & escrows to be held by Servicer of Mezzanine, Midland
AA Reserve (to General Leasing Reserve) $ (2,000,000.00)
Cash from Drawdown of ClickAction Letter of Credit (to
General Leasing Reserve) $ (379,692.77)
Huntington Holdings Prepaid Rent Reserve $ (59,054.00)
Documentary Transfer Tax Reserve $ (952,000.00)
----------------
Total Reserves $ (3,390,640.77)
Less Terrorism Insurance reserved to be held by First American Title
(retain per escrow instructions) $ (53,459,976.00)
Less fees and costs (See page 3 for disposition): $ (6,091,727.29)
----------------
Amount due to (from) Borrower: $ 14,667,055.32
================
I hereby approve this Settlement Statement and authorize the wiring/transfer of
funds as set forth herein.
Date: 3/29/02 Bunker Hill Senior Mezzanine, LLC
By:
-------------------------------------
By: ILLEGIBLE
Name: ILLEGIBLE
Title: Senior VP
Date: 3/27/02 Bunker Hill Junior Mezzanine, LLC
By:
-------------------------------------
By: ILLEGIBLE
Name: ILLEGIBLE
Title: Senior VP
3rd Party Fees and Costs
1. Title Insurance Fees and Charges -- First American Title
Owner's Policy $104,980.00
Endorsements $ 22,082.00
UCC Ins. ▇▇▇▇ ▇▇. Loan $ 21,719.85
UCC Ins. ▇▇▇▇ ▇▇. Loan $ 18,450.00
Filing Fees $ 200.00
UCC Courier Fees $ 24.00
Escrow Fee $ 3,500.00
===========
Total $ 170,955.56
2. Legal Fees
Lender's Counsel -- Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & Tall $500,000.00
Lender's Counsel -- ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ $100,000.00
Lender's Counsel Environmental Review -- ▇▇▇▇▇▇▇, Roor & ▇▇▇▇▇ $ 1,946.00
Borrower's Counsel -- ▇▇▇▇▇▇▇▇▇ & Rutler PC $320,000.00
Borrower's Counsel -- ▇▇▇, Castle & ▇▇▇▇▇▇▇▇▇ LLP $264,094.07
Borrower's Counsel -- Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ $ 25,000.00
Borrower's Counsel -- ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger $ 49,926.67
RECP Counsel -- Proskaur Rose LLP $520,000.00
RECP Counsel -- ▇▇▇▇▇ Matkine, ▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP $174,657.56
RECP Counsel -- Debivoice & ▇▇▇▇▇▇▇▇ $ 7,500.00
===========
Total $2,013,022.30
3. Due Diligence & Consultants
Insurance Consultant -- ▇▇▇▇▇▇ ▇▇▇▇▇▇ $ 600.00
Appraisal -- ▇▇▇▇▇▇▇ & Wakefield $ 53,000.00
Agreed Upon Procedures -- ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ $ 65,000.00
Engineering & Environmental -- CEI $ 15,000.00
Salamic -- URS $ 6,000.00
Tax -- ▇▇▇▇▇▇▇▇ $ 40,500.00
Due Diligence -- Silus Realty Services, Inc. $ 62.854.00
Surveyor for RECP -- ▇▇▇▇▇▇ $ 5,500.00
Cap Trust Insurance Consultant -- Equity Risk Services, LLC $ 2,500.00
Cap Trust Out of Pocket Expenses $ 3,000.00
RECP Due Diligence -- BetaWest $ 46,500.00
===========
Total $ 303,454.00
4. GMAC Fees
GMACCM Review Fee (Net of $60,000) $700,000.00
GMACCM Third Party Counsel (Net of $60,000) $100,000.00
Rating Agency Third Party Counsel (GMAC to pay S&P and ▇▇▇▇▇▇▇) $ 35,000.00
Rating Agency Review Fees (GMAC to pay S&P and ▇▇▇▇▇▇▇) $ 25,000.00
===========
Total $ 880,000.00
5. LIBOR CAP -- Sumitomo Bank $1,621,110.13
6. Placement Fee -- Secured Capital $1,015,000.00
7. 110.5 Endorsement Payable to Commonwealth Land Title Company $ 38,186.00
Total Fees and Costs $6,091,727.29
=============
I hereby approve this Settlement Statement and authorize the wiring/transfer of
funds as set forth herein.
Date: 3/27/02
---------
Bunker Hill Senior Mezzanine, LLC
By: [ILLEGIBLE]
-----------------------------
Name: [ILLEGIBLE]
---------------------------
Title: [ILLEGIBLE]
--------------------------
Date: 3/27/02
---------
Bunker Hill Junior Mezzanine, LLC
By: [ILLEGIBLE]
-----------------------------
Name: [ILLEGIBLE]
---------------------------
Title: [ILLEGIBLE]
--------------------------
DISTRIBUTION
------------
Amounts are funded through: First American Title Company $105,529.699.74
Bank: Well Fargo Bank, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ABA #: 1210024?
Acct #: 4314-689385
Account Name: First American Title Insurance Company
Reference: Buyer: Library Square Associates LLC, Property: Library Tower,
▇▇▇ ▇. ▇▇▇▇▇ ▇▇.,
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ 90
Escrow No. 04022046-002 MN
Attention: ▇▇▇▇▇▇▇ Nert, (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇.
▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
Distribution of Funds:
1. Disburse: $111,725,000.00 to Datacourt Payment/Dai Ichi by wire as follows:
Bank: Citibank, N.A. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ABA #: ▇▇▇-▇▇▇-▇▇▇
Acct. #: 3608-7072
Acct Name: Datacourt Properties, Inc.
Reference: ▇▇▇▇▇▇▇-Library Tower
2. Disburse: $ 615,000.00 to DLJ RECP by wire as follows:
Bank: Citibank, NY
ABA #: ▇▇▇-▇▇▇-▇▇▇
Acct. #: 3589-6041
F/C at: DLJ Securities Corp. Special Account Real Estate
F/F/C at: DLJ Internal Account # 275-001958,
DLJ Real Estate Capital Planners in Trust for RECP II
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (Library Tower)
Reference: ▇▇▇▇▇▇▇ - Library Tower
3. Disburse: $ 4,000.000.00 to DLJ RECP by wire as follows:
Bank: Citibank, NY
ABA #: ▇▇▇-▇▇▇-▇▇▇
Acct. #: 3589-6041
F/C at: DLJ Securities Corp.
F/F/C at: DLJ Internal Account # 275-008589,
Bunker Hill Equity, LLC
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
4. Disburse: $ 10,000.000.00 to United California Bank by wire as follows:
Bank: United California Bank, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇
ABA #: ▇▇▇-▇▇▇-▇▇▇
Acct. #: 2302-25217
For Credit at: Southern LOC, attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Reference: ▇▇▇▇▇▇▇ Partners, Loan Number ▇▇-▇▇▇▇▇▇▇-▇, #42
5. Disburse: $ 5,000,000.00 to Midland Loan Services, Inc. (as Servicer on
Salomon Loan #030226280) as follows:
Bank: LaSalle Bank N.A.
ABA #: ▇▇▇▇▇▇▇▇▇
Acct. #: 67-8668-84-9
Account Name: ▇▇▇▇▇▇▇ Partners - Leasing Costs-TI Cost Account
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Reference: ▇▇▇▇▇▇▇-Library Tower
6. Disburse: $ 8,134,080.43 to GMAC by wire as follows:
Bank: First Union, Philadelphia, PA
ABA #: ▇▇▇-▇▇▇-▇▇▇
Acct. #: 2100012537715
Beneficiary: GMAC Commercial Mortgage Corporation
Reference: GMACOM #▇▇-▇▇▇▇▇▇▇
7. Disburse: $ 3,390,645.77 to Midlan Loan Services, Inc. by wire as follows:
Bank: PNC Bank N.A.
ABA #: C43000096
Acct. #: 1006067647
Credit: Midland Loan Services, Inc.
Reference: Library Tower
Attn: ▇▇▇▇▇ Briernell, (▇▇▇) ▇▇▇-▇▇▇▇
8. Retain: $ 3,458,878.00 First American Title Company (retain per escrow instructions)
Bank: ▇▇▇▇▇ Fargo Bank, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ABA #: ▇▇▇▇▇▇▇▇▇
Acct. #: 4314-689385
For Credit to: First American Title Insurance Company
Reference: Buyer: Library Square Associates, LLC,
Property: Library Tower
▇▇▇ ▇. ▇▇▇▇▇ ▇▇.
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ 90
Attention: ▇▇▇▇▇▇▇ Nert, CSEO and 04022046-MN
9. Retain: $ 172,055.80 First American Title Company
Bank: ▇▇▇▇▇ Fargo Bank, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ABA #: ▇▇▇▇▇▇▇▇▇
Acct. #: 4314-689355
Reference: Buyer: Library Square Associates, LLC,
Property: Library Tower
▇▇▇ ▇. ▇▇▇▇▇ ▇▇.
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ 90
Attention: ▇▇▇▇▇▇▇ Nert, CSEO and 04022046-MN
10. Disburse: $ 500,000.00 to Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ by wire as follows:
Bank: Chase Private Bank
ABA #: ▇▇▇▇▇▇▇▇▇
Acct. #: 987707218
Acct. Name: Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇
Reference: File No. 60152.991/992
Attention: Accounts Receivable Dept. (▇▇▇) ▇▇▇-▇▇▇▇
11. Disburse: $ 150,000.00 to Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ by wire as follows:
Bank: Bank of America
ABA #: ▇▇▇▇▇▇▇▇▇
Acct. #: 14599-04796
Acct. Name: Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇▇▇▇▇ PARTNERS
DISTRIBUTION
------------
Reference: Statement No. 73725, Mic No. 44520,0095
12 Disburse $ 1,945.00 to ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP by wire as follows:
Bank: Citibank NA, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
ABA #: 021000069
Acct. #: 37242030
Acct. Name: ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP Attorney Business Account
Reference: Library Tower, Invoice No. ILLEGIBLE
13 Disburse $320,000.00 to ▇▇▇▇▇▇▇▇▇ & Rutler PC by wire as follows:
Bank: City National Bank - Library Tower Office, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
ABA #: 122016066
Acct. #: 210-005439
Acct. Name: ▇▇▇▇▇▇▇▇▇ & Rutler PC
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (213) ILLEGIBLE
Reference: Invoice #1014251/032702, ▇▇▇▇▇▇▇-Library Tower
14 Disburse $264,094.07 to ▇▇▇, Castle & ▇▇▇▇▇▇▇▇▇ LLP by wire as follows:
Bank: Union Bank, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
ABA #: 122000498
Acct. #: 210-066-5517
Reference: matter numbers 36695 and 39921, ▇▇▇▇▇▇▇-Library Tower
Attn: ▇▇▇▇▇ ▇▇▇, Customer Service (▇▇▇) ▇▇▇-▇▇▇▇
15 Disburse $ 25,000.00 to Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ by wire as follows:
Bank: Citibank, ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
ABA #: 021000089
Acct. #: 02095111
For the Account of: Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Attn: Rose Digilargio, Private Banking Division
Ref: 30211-6
16 Disburse $ 49,825.07 to ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger by wire as follows:
Bank: Wilmington Trust Company, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ABA #: 031100092
Acct. #: 2254-1174
Acct. Name:
Reference: Invoice No. 00003123, ▇▇▇▇▇▇▇-Library Tower
▇▇▇▇▇▇▇ PARTNERS
DISTRIBUTION
------------
17 Disburse $520,000.00 to Proskauer Rose LLP by wire as follows:
Bank: Citibank, N.A. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ABA #: 021-000-[ILLEGIBLE]
Acct. #: 02838341
Acct. Name: Proskauer Rose LLP
Reference: Client Matter 22903.017, ▇▇▇▇▇▇▇-Library Tower
18 Disburse $174,657.56 to ▇▇▇▇▇ [ILLEGIBLE], Lock, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP by wire as follows:
Bank: ▇▇▇▇▇ Fargo Bank, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
ABA #: ▇▇▇▇▇▇▇▇▇
Acct. #: 4800188553
Acct. Name: ▇▇▇▇▇ [ILLEGIBLE], Lock, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP
Reference: ▇▇▇▇▇▇▇-Library Tower
19 Disburse $ 7,500.00 to Debevolas & ▇▇▇▇▇▇▇▇ by wire as follows:
Bank: Citibank, N.A. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
ABA #: 021000089
Acct. #: 0277-3728
REF: TIN ▇▇-▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇-Library Tower
20 Disburse $ 600.00 to ▇▇▇▇▇▇ ▇▇▇▇▇▇ Company Ltd. by check to ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇. Account # ▇▇▇▇▇▇▇? Invoice # 100521
21 Disburse $ 53,000.00 to ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ by check to:
▇▇▇▇▇▇▇ & Wakefield Valuation Advisory Service
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Ref: Invoices # ▇▇-▇▇▇▇▇-▇▇▇▇; ▇▇-▇▇▇▇▇-▇▇▇▇; ▇▇-▇▇▇▇▇-▇▇▇▇; ▇▇-▇▇▇▇▇-▇▇▇▇
22 Disburse $ 65,000.00 to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ by wire as follows:
Bank: Bank One, N.A.
ABA #: 07100013
Acct. #: 6901615
Acct. Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
Invoice #: 0095-AF1???/MAG17201
Reference L9100445
23 Disburse $ 15,000.00 to Certified Environments Inc. (CEI) by wire as follows:
Bank: ▇▇▇▇▇ Spring National Bank, ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
ABA #: 055001090
Acct. #: 30-31606201
Acct. Name: CEI
Invoice #: ▇▇▇-▇▇▇▇-▇▇▇▇
Reference: ▇▇▇-▇▇▇▇-▇▇▇▇
24 Disburse $ 6,000.00 to URS by check to:
URS Corporation
Dept. 1025, ▇▇ ▇▇▇ ▇▇▇▇▇?
▇▇▇▇▇▇, ▇▇ ?▇▇▇▇-▇▇▇▇
Reference: Library Tower
25 Disburse $ 40,500.00 to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ by wire as follows:
Bank: Bank One, N.A.
ABA #: 07100013
Acct. #: 5001518
Acct. Name:
Reference: IV 0095 123455 LB 100445
Distribution
------------
26 Disburse $62,654.00 to Silus Realty Services, Inc. by wire as follows:
Bank First State Bank of Texas (Houston Branch)
ABA #: 111914742
Acct. #: 4541032435
Acct. Name: Silus Realty Services, Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇/▇▇▇▇▇▇▇ Hositer
Reference: DD02-020
27 Disburse $6,500.00 to ▇▇▇▇▇▇ by wire as follows:
Bank California Bank and Trust
ABA #: ▇▇▇▇▇▇▇▇▇
Acct. #: 05815135170
Acct. Name: ▇▇▇▇▇▇
Reference: ▇▇▇▇▇▇▇ -- Library Tower
28 Disburse $2,500.00 to Equity Risk Services, LLC by wire as follows:
Bank Bank of America, Dallas TX
ABA #: ▇▇▇▇▇▇▇▇▇
Acct. #: ▇▇▇▇▇▇▇▇▇▇
Acct. Name: Equity Risk Services, LLC -- premium trust account -- 3rd party
Reference: Invoice #2582, ▇▇▇▇▇▇▇ -- Library Tower
29 Disburse $3,000.00 to Cap Trust by wire as follows:
Bank The Chase Manhattan Bank, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
ABA #: 021-000021
Acct. #: 304135062
Acct. Name: CT Investment Management Co., LLC
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Reference: ▇▇▇▇▇▇▇ -- Library Tower
30 Disburse $46,500.00 to BetaWest by wire as follows:
Bank Chase Bank of Texas
ABA #: ▇▇▇-▇▇▇-▇▇▇
Acct. #: 116-10036887
For Further Credit: PM Realty Group, LP
Beneficiary: PM Realty Group, LP
Attention: Mid ▇▇▇▇▇▇▇▇ -- PM Realty Group (▇▇▇) ▇▇▇-▇▇▇▇
Reference: ▇▇▇▇▇▇▇ -- Library Tower
31 Disburse $660,000.00 to GMAC by wire as follows:
Bank First Union, Philadelphia PA
ABA #: ▇▇▇-▇▇▇-▇▇▇
Acct. #: 2100012537715
Beneficiary: GMAC Commecial Mortgage Corporation
Reference: GMACCM #▇▇-▇▇▇▇▇▇▇
32 Disburse $1,691,110.13 to Sumitomo Bank by wire as follows:
Bank ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank New York Branch, New York NY
In Favor Of: SMBC Derivative Products Limited
ABA #: ▇▇▇-▇▇▇▇-▇▇
Acct. #: 400035413
Reference: ▇▇▇▇▇▇▇ -- Library Tower
33 Disburse $1,015,000.00 to Secured Capital by wire as follows:
Bank Bank of America, San Francisco, CA
ABA #: ▇▇▇-▇▇▇-▇▇▇
Acct. #: 11649-61083
Acct. Name: Secured Capital Corp.
Attn: Bank of America Branch 1154, ▇▇▇▇▇▇ ▇▇▇▇▇
Reference: ▇▇▇▇▇▇▇ -- Library Tower
34 Disburse $35,185.00 to Commonwealth Land Title Company by check to:
Commonwealth Land Title Co.
▇▇▇ ▇. ▇▇▇ ▇▇. ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
REF: 01-2609EE
35 Disburse $14,557,055.32 to ▇▇▇▇▇▇▇ by wire as follows:
Bank Bank of America, San Francisco, CA
ABA #: ▇▇▇-▇▇▇-▇▇▇
Acct. #: 14206-51458
I hereby approve this Settlement Statement and authorize the wiring/transfer
as set forth herein.
Date: 3/27/02
--------
Bunker Hill Senior Mezzanine, LLC
By:
-----------------------------
By: [ILLEGIBLE]
----------------------------
Name: [ILLEGIBLE]
----------------------------
Title: [ILLEGIBLE]
---------------------------
Date: 3/21/02
--------
Bunker Hill Junior Mezzanine, LLC
By:
-----------------------------
By: [ILLEGIBLE]
----------------------------
Name: [ILLEGIBLE]
----------------------------
Title: [ILLEGIBLE]
---------------------------
CREDIT | FIRST SIGNOFF
SUISSE | BOSTON REFS___________________
MEMORANDUM
TO: Marina Moniall (FAX ▇▇▇-▇▇▇-▇▇▇▇)
(FAX ▇▇▇-▇▇▇-▇▇▇▇)
FROM: ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ (Phone ▇▇▇-▇▇▇-▇▇▇▇)
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (Phone ▇▇▇-▇▇▇-▇▇▇▇)
DATE: March 27, 2002 (Phone ▇▇▇-▇▇▇-▇▇▇▇)
SUBJECT: Library Tower in Los Angeles, CA Funding Memo
________________________________________________________________________________
Transaction details are as follows: the loan has a face amount of
$109,561.000.00 secured by Library Tower located in Los Angeles, CA. The loan
has funding amount of $105,561,000.00 and a net funding amount of
$105,829,699.74.
CSFB trading account:
Settlement Date: March 27, 2002 Client code: M6890
Entity Name: Library Tower Customer No. 2KD 510
Property Type: Class A, Office Building DWI Security #: ______________
Location of Property: Los Angeles, CA Security #: Senior Mezz ($52.561.000)-#325632
Equity Interest: N/A Junior Mezz ($58.000.000)-#325834
Equity Kicker Sec #: N/A _________________________________
Exit Fee: N/A Legal Counsel: Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇
Unfunded Earnout: N/A Contact: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Unfunded Earnout Sec #: N/A Phone No. ▇▇▇-▇▇▇-▇▇▇▇
LC issued by CSFB: N/A
Servicer: Underwriters: Status
Contact: ▇▇▇▇▇ ▇▇▇▇▇▇
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
________________________________________________________________________________
Full Facility Amount N/A
Note Amount $109,561,000.00
Interest Rate Paydown N/A
FSFB Funding Amount $109,561,000.00
________________________________________________________________________________
Plus: Net Refund of Good Faith Deposit/
Remaining Reserve Balance $ 1,015,739.74
Plus: Refund of Additional Good Faith
Deposit $ 0.00
Plus: Refund of Rate Lock Deposit $ 0.00
Plus: Rate Lock Fee (5 days x $615 per day) $ 0.00
Less: Origination Fee to CFI for
Mezzanine Financing $ (1,643,415.00)
Less: Repayment of Start-Up Investment $ (1,541,125.00)
Less: CSFB REFS Placement Fee $ (1,250,000.00)
Less: CSFB ▇▇▇▇ Fee $ (500,000.00)
Less: Consulting Fee Payable to
Column Financial for Rating
Agency Approval $ (25,000.00)
Less: Miscellaneous Out of Pocket
Expenses incurred by CFI $ (25,000.00)
Less: Total Accrued Interest on Start-Up
Investment to be paid by CFI $ (82,500.00)
SUBTOTAL: $ (4,031,500.26)
________________________________________________________________________________
CSFB NET FUNDING AMOUNT $105,529,699.74
________________________________________________________________________________
Dollar Price of the Funding 100.0
________________________________________________________________________________
Funding Deadline (if applicable) N/A
CREDIT | FIRST
SUISSE | BOSTON
FUNDING MEMO PAGE ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇
Representatives from Bankers Trust have reviewed and inventoried both the
underlying collateral and loan documents and have prepared a Trust Receipt
which will be delivered to you. Once you get the Trust Receipt and final
confirmation from me, please make the following disbursement as directed below
and on the attached signed disbursement schedule:
First American Title Company
Bank: ▇▇▇▇▇ Fargo Bank, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇
Account No.: 4314-589365
Account Name: First American Title Insurance Company
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇, (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
For Deposit Into Escrow # 04022046-002 MN
File No./Deal Name: Buyer: Library Square Associates LLC, Property,
Library Tower, ▇▇▇ ▇ ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇
ABA No.: ▇▇▇▇▇▇▇▇▇
Please send the following to Accounting:
Origination Fee to CFI for Mezzanine Financing $1,643,415.00
Repayment of Start-up Investment $1,541,125.00
CSFB REFS Placement Fee $1,250,000.00
CSFB ▇▇▇▇ Fee $ 500,000.00
Consulting Fee Payable to Column Financial for Rating Agency Approval $ 25,000.00
Miscellaneous Out of Pocket Expenses Incurred by CFI $ 25,000.00
----------------------------------------------------------------------------------------------
TOTAL $4,984,540.00
Please send the following to client code M689Q:
Accrued interest on Start-Up Invenstment: $ 62,500.000
If you have any questions please call any of the above individuals.
\DISBURSEMENT AUTHORIZATION
Date: March 27, 2002
Transaction: Library Tower
#REF! Los Angeles, CA
Borrower: Bunker Hill Senior Mezzanine, LLC & Bunker Hill Junior Mezzanine, LLC
TO: ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Please wire the net funding amount as follows: $105,529,699.74
--------------------------------------------------------------------------------
Total Amount to be Disbursed $105,529,699.74
First American Title Company
Bank: ▇▇▇▇▇ Fargo Bank, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Account No.: 4314-589365
Account Name: First American Title Insurance Company
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇. (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
For Deposit into Escrow # 04022046-02
File No./Deal Name: Buyer: Library Square Associates LLC. Property: Library Tower ▇▇▇ ▇ ▇▇▇▇▇ ▇▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇
ABA No.: ▇▇▇▇▇▇▇▇▇
Please send the following to Accounting:
Origination Fee to CFI for Mezzanine Financing $ 1,643,415.00
Repayment of Start-up Investment $ 1,541,125.00
CSFB REFS Placement Fee $ 1,250,000.00
CSFB ▇▇▇▇ Fee $ 500,000.00
Consulting Fee Payable to Column Financial for Rating Agency Approval $ 25,000.00
Miscellaneous Out of Pocket Expenses Incurred by CFI $ 25,000.00
----------------------------------------------------------------------------------------------
TOTAL $ 4,984,540.00
Please send the following to client code M689Q:
Accrued Interest on Start-Up Investment $ 62,500.00
Please fund the above amount to the title company for further disbursement as
shown above.
Accepted and Agreed to:
March 27, 2002
Bunker Hill Senior Mezzanine, LLC
By:
---------------------------------
By: [ILLEGIBLE]
-----------------------------
Name: [ILLEGIBLE]
---------------------------
Title: [ILLEGIBLE]
--------------------------
Bunker Hill Junior Mezzanine, LLC
By:
---------------------------------
By: [ILLEGIBLE]
-----------------------------
Name: [ILLEGIBLE]
---------------------------
Title: [ILLEGIBLE]
--------------------------
DISBURSEMENT AUTHORIZATION
Date: March 27, 2002
Transaction: Library Tower
#REF! Los Angeles, CA
Borrower: Bunker Hill Senior Mezzanine, LLC & Bunker Hill
Junior Mezzanine, LLC
TO: ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Please wire the net funding amount as follows: $105,529,699.74
--------------------------------------------------------------------------------
Total Amount to be Disbursed $105,529,699.74
First American Title Company
Bank: ▇▇▇▇▇ Fargo Bank, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇
Account No.: 4314-889365
Account Name: First American Title Insurance Company
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇, (▇▇▇) ▇▇▇-▇▇▇▇ ▇ ▇▇▇▇, ▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
For Deposit into Escrow # 04022046-002 MN
File No./Deal Name: Buyer: Library Square Associates LLC.
Property: Library Tower, ▇▇▇ ▇. ▇▇▇▇▇ ▇▇.,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇
ABA No.: ▇▇▇▇▇▇▇▇▇
Please send the following to Accounting:
Origination Fee to CFI for Mezzanine Financing $1,643,415.00
Repayment of Start-up Investment $1,541,125.00
CSFB REFS Placement Fee $1,250,000.00
CSFB ▇▇▇▇ Fee $ 500,000.00
Consulting Fee Payable to Column Financial for Rating Agency Approval $ 25,000.00
Miscellaneous Out of Pocket Expenses Incurred by CFI $ 25,000.00
=============
Total $4,984,540.00
Please send the following to client code M689Q:
Accrued Interest on Start-Up Investment $ 62,500.00
Please fund the above amount to the title company for further disbursement as
shown above.
Accepted and Agreed to:
March 27, 2002
Bunker Hill Senior Mezzanine, LLC
By:
-----------------------------
By: [ILLEGIBLE]
-----------------------------
Name: [ILLEGIBLE]
---------------------------
Title: Senior VP
--------------------------
Bunker Hill Junior Mezzanine, LLC
By:
-----------------------------
By: [ILLEGIBLE]
-----------------------------
Name: [ILLEGIBLE]
---------------------------
Title: Senior VP
--------------------------