Exhibit 10.42
FORM OF
AMENDED AND RESTATED
PROPERTY INSURANCE SHARING AGREEMENT
THIS AMENDED AND RESTATED PROPERTY INSURANCE SHARING AGREEMENT (the
"AGREEMENT") is entered into as of _________, 2003 by and among ▇▇▇▇▇▇▇
PROPERTIES, L.P., a Maryland limited partnership (the "OPERATING PARTNERSHIP");
NORTH TOWER, LLC, a Delaware limited liability company ("NORTH TOWER"); ▇▇▇▇▇▇▇
PARTNERS-355 S. GRAND, LLC, a Delaware limited liability company ("▇▇▇ ▇▇▇▇▇
▇▇▇▇▇"), ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ASSOCIATES, LLC, a California limited liability company
("LIBRARY"); ▇▇▇▇▇▇▇ PARTNERS-555 WEST FIFTH, LLC, a California limited
liability company ("555 WEST Fifth"); ▇▇▇▇▇▇▇ PARTNERS-611 N. BRAND, LLC, a
Delaware limited liability company ("611 N. BRAND"); ▇▇▇▇▇▇▇ PARTNERS-808 SOUTH
OLIVE, LLC, a California limited liability company ("MP 808"); ▇▇▇▇▇▇▇
PARTNERS-SOLANA, L.P., a Texas limited partnership ("SOLANA"); ▇▇▇▇▇▇▇
PARTNERS-SOLANA LAND, L.P., a Texas limited partnership ("SOLANA LAND");
▇▇▇▇▇▇▇/CERRITOS I, LLC ("CERRITOS"), a Delaware limited liability company
▇▇▇▇▇▇▇ PARTNERS-1733 OCEAN, LLC, a California limited liability company
("Ocean"); ▇▇▇▇▇▇▇ PARTNERS-385 COLORADO, LLC, a Delaware limited liability
company ("385 COLORADO"); PLAYA VISTA-WATER'S EDGE, LLC, a Delaware limited
liability company ("WATER'S EDGE"); ▇▇▇▇▇▇▇ PARTNERS-740 SOUTH OLIVE, a
California limited partnership ("740 S. OLIVE"); ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ PARTNERS-17th &
GRAND, LTD., a California limited partnership ("17TH & GRAND"); and ▇▇▇▇▇▇▇
PROPERTIES SERVICES, INC., a Maryland corporation (the "SERVICES COMPANY" or the
"MANAGER"). Each of the Operating Partnership, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, 555 West Fifth, 611 N. Brand, MP ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
Ocean, 385 Colorado, Water's Edge, 740 S. Olive and 17th & Grand may be referred
to herein individually as a "PARTNERSHIP," and may be referred to collectively
as the "PARTNERSHIPS."
RECITALS
WHEREAS, each of the Partnerships owns and/or leases, or will own and/or
lease upon the consummation of the Formation Transactions (as defined below),
the land and improvements set forth below, each of which is more specifically
described on Schedule 1 attached hereto (each, a "PROJECT", and collectively,
the "PROJECTS"):
PARTNERSHIP PROJECT
Operating Partnership Plaza Las ▇▇▇▇▇▇▇
Glendale Center - Phase II
Corporate Office
North Tower ▇▇▇▇▇ Fargo Tower (▇▇▇▇▇ Fargo Center North)
355 South Grand KPMG Tower (▇▇▇▇▇ Fargo Center South)
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Gas Company Tower
611 N. Brand Glendale Center
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MP 808 808 South Olive
Solana Solana
Solana Land Solana Land
Cerritos Cerritos Corporate Center Phase I and II
Ocean ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
385 Colorado Plaza Las ▇▇▇▇▇▇▇-Phase II
Water's Edge Playa Vista-Water's Edge
740 S. Olive 740/737 South Olive
17th & Grand Grand Garage
WHEREAS, pursuant to that certain Property Insurance Sharing Agreement
dated March 31, 1997, as amended on April 1, 2000, April 1, 2002 and April 1,
2003 (collectively, the "PRIOR AGREEMENT"), certain of the Partnerships (or
their predecessor entities), together with certain other entities ("PRIOR
PARTNERSHIPS") that from time to time joined or withdrew from the Prior
Agreement, agreed to obtain certain blanket policies of insurance with respect
to all Projects then owned by such Partnerships and Prior Partnerships, and to
empower ▇▇▇▇▇▇▇ Partners Development, Ltd. ("DEVELOPMENT") to procure such
policies of insurance.
WHEREAS, in connection with a proposed initial public offering (the
"OFFERING") of common stock of ▇▇▇▇▇▇▇ Properties, Inc., a Maryland corporation
and the general partner and sole stockholder, respectively, of the Operating
Partnership and the Services Company (the "REIT"), the REIT, the Operating
Partnership, the Services Company and certain of the Partnerships and/or their
affiliates (the "PROPERTY ENTITIES") will engage in formation transactions (the
"FORMATION TRANSACTIONS") pursuant to which the direct or indirect ownership of
certain of the Projects will be consolidated in the Operating Partnership and
the general management of all of the Projects except for ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇'▇ Edge and Cerritos will be undertaken by the Operating Partnership and/or
the Services Company pursuant to management agreements.
WHEREAS, in connection with the Offering, certain of the Partnerships have
granted options to the Operating Partnership, the exercise of which will result
in the transfer to or consolidation in the Operating Partnership of direct or
indirect ownership interests in the Projects currently owned and/or leased by
such Partnerships (each, an "OPTION TRANSACTION" and, collectively, the "OPTION
TRANSACTIONS").
WHEREAS, the Partnerships have determined that it is in the best interest
of each of them to amend and restate the Prior Agreement in its entirety,
effective as of the consummation of the Formation Transactions, in order to (i)
continue the Prior Agreement on the terms set forth herein, (ii) add the
Operating Partnership, Solana Land and 385 Colorado as a party to, and
Partnership under, the Agreement, (iii) substitute the Services Company (the
Manager under the Prior Agreement) for Development as the "Manager" hereunder
and (iv) provide for certain amendments to this Agreement, without the need for
further action by any of the parties hereto, in the event that certain Option
Transactions are consummated.
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which is
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hereby acknowledged, the Partnerships hereby amend and restate the Prior
Agreement in its entirety as follows:
1. INSURANCE PROCUREMENT.
1.1 DUTY OF MANAGER. Subject to and upon the consummation of the Formation
Transactions, each of the Partnerships hereby appoints the Services Company as
its and their agent and representative, and shall cause the Services Company to
procure and continue in force on behalf of the Partnerships such policies of
insurance on the Projects as the Services Company shall determine to be
necessary or appropriate from time to time; provided, however, that such
policies of insurance shall at all times comply with all requirements (i) set
forth under any management agreement between a Partnership and the Services
Company or, as applicable, another management company or other third party
manager (each, a "MANAGEMENT AGREEMENT") and (ii) by any lender or lessor of a
Partnership as set forth in any deeds of trust, mortgages and other secured loan
documents, security agreements, ground or other leases and other loan, lease or
guaranty agreements as the Partnerships may enter into with respect to the
Projects from time to time. The Partnerships agree that such policies of
insurance may include, without limitation, property, casualty, terrorism, fire,
extended coverage, earthquake and flood, boiler and machinery, rent loss and
liability insurance policies. In its capacity as agent and representative of the
Partnerships pursuant to this Section 1.1, the Services Company shall be
referred to herein as "MANAGER" and, subject to and upon the consummation of the
Formation Transactions, Development shall no longer be a party to this Agreement
or the Manager hereunder.
1.2 POLICY TYPE. The Partnerships agree that Manager has the authority to
procure blanket insurance ("COMMON BENEFIT INSURANCE") with respect to all
Projects in accordance with this Agreement. All insurance policies maintained by
Manager hereunder shall be issued by responsible insurance companies, and shall
insure both the owner of the insured Project and Manager, as their interests
appear.
1.3 CONSIDERATIONS. Subject to Section 1.7 below, any determination to be
made by Manager pursuant to Sections 1.1 and 1.2 above shall be based upon, in
addition to such other factors and considerations as Manager may deem to be
appropriate, (i) the nature and amount of insurance coverage maintained with
respect to similar properties located in the areas in which the Projects are
located, (ii) insurance requirements set forth in third party agreements,
including, but not limited to, office and retail leases and loan agreements
entered into with respect to the respective Projects and (iii) the condition of
and limitations imposed by the insurance underwriting market with respect to the
availability of insurance coverage. In connection with the foregoing, each
Partnership agrees that it shall provide to Manager promptly upon request a true
and complete copy of each Management Agreement, mortgage, loan, lease, security
agreement and/or other third party agreement to which such Partnership is a
party and which contains any insurance requirement with respect to the
Project(s) owned and/or leased by such Partnership.
1.4 BINDING EFFECT. The exercise in good faith of all discretion conferred
upon Manager pursuant to the terms of this Agreement shall be binding upon each
of the Partnerships.
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1.5 RELIANCE UPON BROKER. The Partnerships authorize and direct Manager to
employ a nationally recognized insurance brokerage firm to assist in the
performance of its duties hereunder, and Manager shall be entitled to rely in
good faith upon any advice given by such brokerage firm with respect to
availability of coverages, rates, policy terms, allocations of premiums and
coverages, the insurable value of each of the Projects and other similar
matters.
1.6 PRESENTATION OF CLAIMS. Manager shall have no obligation to present
claims for payment of insured losses to insurance carriers, pursue such claims
until final resolution or take other similar actions except as set forth in any
applicable Management Agreement between Manager and a Partnership; provided,
however, that in the event that Manager is not the property manager of a
Project, Manager shall cooperate with and assist the property manager of such
Project with respect to such property manager's presentation and pursuit of
claims for payment of insured losses with respect to such Project. The
Partnerships authorize Manager to employ independent insurance adjusters and
other independent contractors as may be reasonably necessary to effect loss
recovery pursuant to its duties under any Management Agreement or, as
applicable, to assist any other management company in effecting loss recovery,
in each case as determined in good faith by Manager. To the extent the cost
thereof is not paid by the insurers, such cost shall be borne as set forth in
Section 2.1 below.
1.7 INITIAL COMMON BENEFIT INSURANCE. The parties agree that the Common
Benefit Insurance outlined on Schedules 2, 3 and 4 attached hereto is
appropriate for the first year, or portion thereof, following the effective date
of this Agreement, and is hereby ratified and approved by the Partnerships.
2. ALLOCATION OF COSTS AND PROCEEDS.
2.1 COST OF LOSS RECOVERY AND SEPARATE INSURANCE. The premiums and other
costs for any separate policies of insurance, if any, procured hereunder with
respect to any individual Project shall be paid by the insured Partnership. Any
costs or expenses incurred by Manager with respect to the presentation or
pursuit of claims under any such separate insurance or with respect to Manager's
assistance of another property manager in the presentation and pursuit of such
claims, shall be paid by the insured Partnership. Any costs or expenses incurred
by Manager with respect to the presentation or pursuit of claims under any
Common Benefit Insurance shall, if such claims are pursued for the benefit of
only one Partnership, be paid by such insured Partnership, and, if such claims
are pursued for the benefit of more than one Partnership, shall be paid by such
Partnership in proportion to their respective shares of the premium cost for
Common Benefit Insurance as set forth in Section 2.2 below. All payments
required hereunder shall be made at the times and in the manner set forth in
Article 3 below.
2.2 COST OF COMMON BENEFIT INSURANCE. The premiums and other costs for
Common Benefit Insurance procured by Manager under this Agreement shall be paid
by the Partnerships in accordance with the methodology shown on Schedules 2 and
4 attached hereto.
2.3 DISTRIBUTION OF INSURANCE PROCEEDS.
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(a) If the Partnerships are maintaining separate insurance policies
at the time of an insured loss or occurrence, the proceeds of each such separate
policy, to the extent payable thereunder, shall be payable solely to the
Partnership insured by such policy.
(b) In the event that a single Partnership sustains an insured loss
within the coverage provided by any Common Benefit Insurance, then the total
amount of insurance proceeds paid as a result of such loss shall be distributed
to the Partnership which sustains the loss. Subject to Section 2.4 below, in the
event that more than one Project should together sustain an insured loss within
the coverage afforded by any Common Benefit Insurance from the same event or
casualty, then, provided that the total amount of such loss does not exceed the
coverage provided by such Common Benefit Insurance after taking into
consideration deductible amounts and excluded items, the total amount of
insurance proceeds paid as a result thereof shall be allocated among such
Projects based upon the portion of the loss sustained by each such Project.
Subject to Section 2.4 below, if the total amount of such loss exceeds the
coverage provided by such Common Benefit Insurance, after taking into
consideration deductible amounts and excluded items, the total amount of
insurance proceeds paid as a result of such loss shall be allocated among such
Projects in the same manner as the cost of Common Benefit Insurance is allocated
among the Projects under Section 2.2 above; provided, however, in no event shall
the amount of proceeds from such Common Benefit Insurance allocated to any
Project exceed the amount of the loss incurred by such Project, and any proceeds
otherwise allocable to any Project in excess of the loss it incurred shall be
allocated to the other Projects. Schedules 3 and 4 attached hereto set forth the
coverage available to each Project under the Initial Common Benefit Insurance
obtained pursuant to this Agreement.
2.4 EARTHQUAKE AND TERRORISM COVERAGE - DISTRIBUTION.
(a) EARTHQUAKE. Insurance proceeds from any Common Benefit Insurance
for earthquake loss shall be paid in accordance with Section 2.3(b) above,
subject to the remaining provisions of this Section 2.4(a). First, no
Partnership shall be entitled to receive earthquake insurance proceeds unless it
sustains earthquake damage to non-excluded items which is in excess of the
applicable insurance coverage deductibles, subject to Section 2.5 below. Then,
each Partnership shall be entitled to receive earthquake insurance proceeds in
the amount allocated to its Project for each policy period in accordance with
this Agreement, which, with respect to the Initial Common Benefit Insurance, is
set forth on Schedule 3 hereto. A Partnership shall be entitled to receive
earthquake insurance proceeds in excess of the amount of earthquake insurance
coverage allocated to its Project in accordance with this Agreement ("EXCESS
PROCEEDS"), but no such Excess Proceeds shall be paid to a Partnership until the
date (the "FINAL DATE") which is the later of thirty (30) days after expiration
of the policy period of the applicable earthquake insurance and the date all
earthquake loss determinations for all Projects are final for the policy period
of the applicable earthquake insurance. On the Final Date, the amount of Excess
Proceeds to which each Partnership is entitled shall be determined, and shall
equal the total Excess Proceeds available to all Projects multiplied by a
fraction, the numerator of which is earthquake loss suffered by such Partnership
on its Project in excess of the earthquake insurance coverage allocated to such
Project in accordance with this Agreement, and the denominator of which is the
aggregate of such earthquake losses suffered by all Partnerships on each Project
in excess of the insurance coverage allocated to each such Project in accordance
with this Agreement. For purposes hereof, final loss determinations shall be
conclusively determined by
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an independent, qualified adjuster selected by Manager in good faith. Excess
Proceeds may be distributed prior to the Final Date (but only after the
expiration of the policy period of the applicable earthquake insurance) to a
particular Partnership if its Project is the only Project which has suffered
earthquake loss during such policy period, or to a Partnership or more than one
Partnership if no such Partnership is assured of receiving more than its
allocable share of Excess Proceeds as determined under this Section 2.4. Excess
Proceeds shall be pursued and obtained by Manager as the same may be available
under the policies of insurance and, to the extent not immediately distributable
under this Section 2.4, shall be held for the benefit of the Partnerships as set
forth above in a separate interest bearing reserve account as deemed appropriate
by Manager in the good faith exercise of its reasonable business judgment.
Interest earned on such Excess Proceeds shall be distributed to each Partnership
in proportion to the amount of the Excess Proceeds received by each such
Partnership at the time such Excess Proceeds are distributed.
(b) TERRORISM. Insurance proceeds from any Common Benefit Insurance
for terrorism loss shall be paid in accordance with Section 2.3(b) above,
subject to the remaining provisions of this Section 2.4(b). First, no
Partnership shall be entitled to receive terrorism insurance proceeds unless it
sustains terrorism damage to non-excluded items which is in excess of the
applicable insurance coverage deductibles. Then, each Partnership shall be
entitled to receive terrorism insurance proceeds in the amount allocated to its
Project for each policy period in accordance with this Agreement, which is set
forth on Schedule 3 hereto. A Partnership shall be entitled to receive terrorism
insurance proceeds in excess of the amount of terrorism insurance coverage
allocated to its Project in accordance with this Agreement ("EXCESS TERRORISM
INSURANCE PROCEEDS"), but no such Excess Terrorism Insurance Proceeds shall be
paid to a Partnership until the date (THE "FINAL TIP DATE") which is the later
of thirty (30) days after expiration of the policy period of the applicable
terrorism insurance Proceeds to which each Partnership is entitled shall be
determined, and shall equal the total Excess Terrorism Insurance Proceeds
available to all Projects multiplied by a fraction, the numerator of which is
terrorism loss suffered by such Partnership on its Project in excess of the
terrorism insurance coverage allocated to such Project in accordance with this
Agreement, and the denominator of which is the aggregate of such terrorism
losses suffered by all Partnerships on each Project in excess of the insurance
coverage allocated to each such Project in accordance with this Agreement. For
purposes hereof, final loss determinations shall be conclusively determined by
an independent, qualified adjuster selected by Manager in good faith. Excess
Terrorism Insurance Proceeds may be distributed prior to the Final TIP Date (but
only after the expiration of the policy period of the applicable terrorism
insurance) to a particular Partnership if its Project is the only Project which
has suffered terrorism loss during such policy period, or to a Partnership or
more than one Partnership if no such Partnership is assured of receiving more
than its allocable share of Excess Terrorism Insurance Proceeds as determined
under this Section 2.4(b). Excess Terrorism Insurance Proceeds shall be pursued
and obtained by Manager as the same may be available under the policies of
insurance and, to the extent not immediately distributable under this Section
2.4(b), shall be held for the benefit of the Partnerships as set forth above in
a separate interest bearing reserve account as deemed appropriate by Manager in
the good faith exercise of its reasonable business judgment. Interest earned on
such Excess Terrorism Insurance Proceeds shall be distributed to each
Partnership in proportion to the amount of the Excess Terrorism Insurance
Proceeds received by each such Partnership at the time such Excess Terrorism
Insurance Proceeds are distributed.
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2.5 ALLOCATION OF DEDUCTIBLE AMOUNTS AND EXCLUDED ITEMS.
(a) Other than in connection with earthquake or terrorism loss,
deductible amounts and excluded items with respect to all Common Benefit
Insurance shall be allocated, in the event of a loss within the coverage
afforded by such Common Benefit Insurance, to the Project suffering the loss.
Deductible amounts under the Initial Common Benefit Insurance typically are
$25,000 per occurrence per property, for other than earthquake, flood and
terrorism loss.
(b) With respect to earthquake and terrorism loss, deductible
amounts and excluded items with respect to all Common Benefit Insurance shall be
allocated, in the event of a loss within the coverage afforded by such Common
Benefit Insurance, to the Project suffering the loss. However, earthquake and
terrorism insurance deductibles are calculated as a percentage of insured value
for each Project and are subject to a maximum deductible amount for each
occurrence in the aggregate with respect to all Projects (under the Initial
Common Benefit Insurance, for example, the earthquake insurance deductible is 5
percent (5%) of the insured value of each Project). Therefore, to the extent any
Project may benefit from the maximum aggregate deductible for earthquake or
terrorism loss suffered by the Project from any occurrence, such benefit shall
be allocated to the Projects suffering loss from such occurrence in proportion
to their respective insured values.
3. PAYMENT OF COSTS. The Partnerships each hereby direct Manager, as soon as
practicable after the receipt of each premium notice for any policy of insurance
procured by Manager hereunder and the receipt of any invoice for any other item
of cost related to such insurance, to give written notice to the Partnerships of
the amount of such premium or invoice allocable to each such Partnership as
determined pursuant to Sections 2.1 and 2.2 above. On or before the last date
for payment without penalty stated in such premium notice or invoice, each
Partnership shall pay to Manager, or to the insurance broker or insurance
company, as directed by Manager, its allocable share of the amount of such
premium or invoice, or the entire premium or invoice, in the case of a separate
insurance policy insuring such Partnership. Manager shall be entitled to finance
the cost of the Common Benefit Insurance obtained hereunder over the policy
period of such insurance, in which case the costs thereof for which the
Partnerships are responsible shall include all interest, fees and other costs of
such financing. Manager shall notify the Partnerships of the periodic payments
required under such financing and each Partnership shall pay its allocable share
thereof not less than five (5) business days prior to the date each such payment
is due.
4. TERM; TERMINATION. Unless the parties hereto agree otherwise, this Agreement
shall be effective upon, but only upon, the consummation of the Formation
Transactions (the "Effective Date"). Unless terminated earlier, this Agreement
shall be in effect from the date of the consummation of the Formation
Transactions, or such other date as the parties hereto shall otherwise agree,
until March 31, 2007. The parties may extend the term by written amendment
hereto. Prior to March 31 of each year (the "Reallocation Date") during the term
of this Agreement, Manager shall notify each Partnership of the premium and
coverage allocations for the annual period beginning and ending, respectively,
on the next two Reallocation Dates (the "Following Year"), specifying such
allocations in the forms shown on Schedules 2, 3 and 4 hereto. Such allocations
shall replace and supersede in their entirety Schedules 2, 3 and 4 for
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such Following Year. Each Partnership shall be entitled to withdraw from this
Agreement upon fifteen (15) days prior written notice to Manager and the other
Partnerships. Notwithstanding the foregoing, this Agreement shall terminate as
to the participation of any Partnership upon the termination of such
Partnership's management agreement with Manager. Each Partnership shall,
notwithstanding anything to the contrary contained herein, remain bound by the
terms of this Agreement with respect to (a) any premiums earned and expenses
incurred prior to the date such termination is effective, (b) any losses
suffered prior to the date such termination is effective and (c) the allocations
of coverage provided hereunder with respect to such losses. Unearned premiums
with respect to coverage which does not continue for a Partnership that has
terminated its participation hereunder shall be refunded to such Partnership to
the extent that such premiums are received by Manager from insurers following
termination of coverage for the Partnership.
5. GENERAL PROVISIONS.
5.1 INDEPENDENT CONTRACTOR. It is expressly understood and agreed that
Manager acts as an independent contractor in performance of its duties as
described herein.
5.2 NOTICES. All notices, demands, consents 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
Partnerships at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, or to such other address as each Partnership 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 forty-eight (48) hours after having
been deposited in the United States mail, postage prepaid and properly
addressed.
5.3 ATTORNEYS' FEES. If any suit, action or proceeding 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, action or proceeding and
on any appeal from any judgment or decree entered therein.
5.4 NON-ASSIGNABILITY. This Agreement and the rights and obligations
hereunder, shall be fully assignable by the Manager or the Services Company to
an affiliate thereof. Except as set forth in Section 5.5(b) below, this
Agreement and the rights and obligations hereunder, shall not be assignable by
any other party hereto without the written consent of all of the other parties
hereto. Provided, however, that the foregoing shall not extend to assignments
required by any insurance carrier in any matter relating to subrogation and
shall not extend to an assignment by any Partnership in connection with a sale
of its Project or a portion thereof.
5.5 AMENDMENTS.
(a) GENERAL. Except as otherwise provided herein all amendments to
this Agreement shall be in writing and executed by the party to be charged.
(b) FORMATION TRANSACTIONS. Upon the consummation of the Formation
Transactions, the Operating Partnership will succeed to the ownership interests
in Plaza Las ▇▇▇▇▇▇▇ that are currently held by ▇▇▇▇▇▇▇ Partners-Plaza Las
▇▇▇▇▇▇▇, LLC and the ownership interests in Glendale Center-Phase II that are
currently held by ▇▇▇▇▇▇▇ Partners-Glendale II, LLC. In connection with the
foregoing, the parties hereto acknowledge and agree that, upon the
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consummation of the Formation Transactions, each of ▇▇▇▇▇▇▇ Partners-Plaza Las
▇▇▇▇▇▇▇, LLC and ▇▇▇▇▇▇▇ Partners-Glendale II, LLC will cease to be a party to
this Agreement and the Operating Partnership will succeed to all of the rights
and obligations of each of them under the Prior Agreement.
(c) OPTION TRANSACTIONS. In order to facilitate the consummation of
the Option Transactions if and as necessary, each of the parties hereto agrees
that, without further action by any party hereto:
(i) upon the closing of an Option Transaction involving Ocean,
the Operating Partnership shall succeed to and assume the rights and
obligations of Ocean as the Partnership owning the ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Project, and thereafter Ocean shall no longer be a party to this Agreement
or a Partnership hereunder; and
(iv) upon the closing of an Option Transaction involving 385
Colorado, the Operating Partnership shall succeed to and assume the rights
and obligations of 385 Colorado as the Partnership owning the Plaza Las
▇▇▇▇▇▇▇-Phase II Project, and that thereafter 385 Colorado shall no longer
be a party to this Agreement or a Partnership hereunder.
5.6 INTEGRATION. This Agreement supersedes and takes the place of any and
all previous agreements, whether oral or written, entered into by or among the
Partnerships with respect to the subject matter hereof except the respective
Management Agreements with Manager. This Agreement may be executed in one or
more counterparts, which, when taken together, shall constitute one original.
5.7 GOVERNING LAW. This Agreement is executed with respect to Projects
located in the State of California and shall be governed by and construed in
accordance with the laws of such state.
5.8 COOPERATION. The Partnerships shall furnish such information and
reasonable assistance in presenting or prosecuting any claim for payment under
an insurance policy procured by Manager hereunder as may be reasonably requested
by Manager.
5.9 WAIVER OF RIGHTS. The failure of any Partnership to seek redress for
violation, or to insist upon the strict performance of any covenant, agreement,
provision or condition of this Agreement, shall not constitute a waiver of the
terms of such covenant, agreement, provision or condition at any subsequent
time, or of the terms of any other covenant, agreement, provision or condition
contained in this Agreement.
5.10 SUCCESSORS AND ASSIGNS. This Agreement and each of the provisions
hereof shall be binding upon and inure to the benefit of the Partnerships hereto
and their respective heirs, executors, administrators, successors and assigns,
subject to Section 5.4 above.
5.11 SUBORDINATION. This Agreement shall be and remain absolutely and
unconditionally subordinate to any valid recorded Deed of Trust on each Project
or any part thereof and to any ground lease or other lease of a Project to a
Partnership whether already or hereafter recorded.
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5.12 FURTHER ASSURANCE. The Partnerships hereby agree to take such further
action and to execute such other and further documents as may be reasonably
necessary to carry out the purposes of this Agreement.
5.13 APPROVAL OF LENDER. This Agreement, and the obligations of the
Partnerships arising herefrom, are subject to the consent of the lenders having
a security interest in the Projects or any of them.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the Partnerships have executed this Property Insurance
Sharing Agreement as of the day and year first above written.
"OPERATING PARTNERSHIP"
▇▇▇▇▇▇▇ PROPERTIES, L.P.
a Maryland limited partnership
By: ▇▇▇▇▇▇▇ PROPERTIES, INC.
a Maryland corporation
Its General Partner
By:
---------------------------
Name:
-------------------------
Title:
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"NORTH TOWER"
NORTH TOWER, LLC
a Delaware limited partnership
By: NORTH TOWER MANAGER, LLC
a Delaware limited liability company
Its Managing Member
By: ▇▇▇▇▇▇▇ PARTNERS-BUNKER HILL, LTD.
a California limited partnership
Its Administrative Member
By: ▇▇▇▇▇▇▇ PARTNERS BGHS, LLC
a California limited liability company
Its General Partner
By: ▇▇▇▇▇▇▇ PARTNERS SCS, INC.
a California corporation
Its Manager
By:
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Name:
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Title:
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S-1
"355 SOUTH GRAND"
▇▇▇▇▇▇▇ PARTNERS-355 S. GRAND, LLC
a Delaware limited liability company
By: MP-355 S. GRAND MEZZANINE, LLC
a Delaware limited liability company
Its Sole Member
By: ▇▇▇▇▇▇▇ PARTNERS-BUNKER HILL, LTD.
a California limited partnership
Its Manager
By: ▇▇▇▇▇▇▇ PARTNERS BGHS, LLC
a California limited liability company
Its General Partner
By: ▇▇▇▇▇▇▇ PARTNERS SCS, INC.
a California corporation
Its Manager
By:
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Name:
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Title:
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S-2
"LIBRARY"
LIBRARY SQUARE ASSOCIATES, LLC
a Delaware limited liability company
By: LIBRARY SQUARE, LTD.
a California limited partnership
Its Manager
By: ▇▇▇▇▇▇▇ PARTNERS-HOPE PLACE, LTD.
a California limited partnership
Its General Partner
By: ▇▇▇▇▇▇▇ PARTNERS BGHS, LLC
a California limited liability company
Its General Partner
By: ▇▇▇▇▇▇▇ PARTNERS SCS, INC.
a California corporation
Its Manager
By:
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Name:
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Title:
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S-3
"555 WEST FIFTH"
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ PARTNERS-555 WEST FIFTH, LLC
a California limited liability company
By: MP-555 WEST FIFTH MANAGER, LLC
a Delaware limited liability company
Its Manager
By:
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Name:
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Title:
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"611 N. BRAND"
▇▇▇▇▇▇▇ PARTNERS-611 N. BRAND, LLC
a Delaware limited liability company
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ PARTNERS-GLENDALE CENTER, LLC
a California limited liability company
By: ▇▇▇▇▇▇▇ PARTNERS-GLENDALE, LLC
a California limited liability company
By: ▇▇▇▇▇▇▇ PARTNERS-III, INC.
a California corporation
By:
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Name:
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Title:
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By: BANKAMERICA REALTY SERVICES, INC.
a Delaware corporation
By:
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Name:
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Title:
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S-4
"MP ▇▇▇"
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, LLC
a California limited liability company
By: MP-808 SOUTH OLIVE MANAGER, LLC
a Delaware limited liability company
By:
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Name:
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Title:
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"SOLANA"
▇▇▇▇▇▇▇ PARTNERS-SOLANA LIMITED PARTNERSHIP
a Texas limited partnership
By: ▇▇▇▇▇▇▇ PARTNERS-SOLANA GP LIMITED LIABILITY COMPANY
a Delaware limited liability company
Its General Partner
By: ▇▇▇▇▇▇▇ PARTNERS-SOLANA BUSINESS TRUST
a Delaware business trust
Its sole member and manager
By:
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Name:
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Title:
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S-5
"SOLANA LAND"
▇▇▇▇▇▇▇ PARTNERS-SOLANA LAND L.P.
a Texas limited partnership
By: ▇▇▇▇▇▇▇ PARTNERS-SOLANA LAND GP, LLC
a Delaware limited liability company
Its General Partner
By: ▇▇▇▇▇▇▇ PARTNERS-SOLANA LAND BUSINESS TRUST
a Delaware business trust
Its sole member and manager
By:
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Name:
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Title:
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"CERRITOS"
▇▇▇▇▇▇▇/CERRITOS I, LLC
a Delaware limited liability company
By: ▇▇▇▇▇▇▇ PROPERTIES, L.P.
a Maryland limited partnership
Its Managing Member
By: ▇▇▇▇▇▇▇ PROPERTIES, INC.
a Maryland corporation
Its general partner
By:
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Name:
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Title:
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S-6
"OCEAN"
▇▇▇▇▇▇▇ PARTNERS-1733 OCEAN, LLC
a California limited liability company
By: MP-1733 OCEAN MANAGER I, INC.
a California corporation
Its Manager
By:
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Name:
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Title:
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"385 COLORADO"
▇▇▇▇▇▇▇ PARTNERS-385 COLORADO, LLC
a Delaware limited liability company
By: MP-385 COLORADO EQUITY, LLC
a Delaware limited liability company
Its Sole Member
By: ▇▇▇▇▇▇▇ PARTNERS-PLAZA LAS ▇▇▇▇▇▇▇-PHASE II, L.P.
a California limited partnership
Its Managing Member
By: ▇▇▇▇▇▇▇ PARTNERS-PASADENA, LTD.
a California limited partnership
Its General Partner
By: ▇▇▇▇▇▇▇ PARTNERS PC, LLC
a California limited liability company
Its Managing General Partner
By: ▇▇▇▇▇▇▇ PARTNERS SCS, INC.
a California corporation
Its Manager
By:
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Name:
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Title:
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S-7
"WATER'S EDGE"
PLAYA VISTA-WATER'S EDGE, LLC
a Delaware limited liability company
By: ▇▇▇▇▇▇▇ PARTNERS-PV INVESTOR PARTNERSHIP, L.P.
a California limited partnership
Its Co-Manager
By: ▇▇▇▇▇▇▇ PARTNERS-PV IPGP, LLC
a California limited liability company
Its General Partner
By: ▇▇▇▇▇▇▇ PARTNERS SCS, INC.
a California corporation
Its Managing Member
By:
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Name:
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Title:
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"740 S. OLIVE"
▇▇▇▇▇▇▇ PARTNERS-740 SOUTH OLIVE
a California limited partnership
By:
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Name:
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Title:
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S-8
"17TH & GRAND"
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ PARTNERS-17TH & GRAND, LTD.
a California limited partnership
By: ▇▇▇▇▇▇▇ PARTNERS 17G, LLC
a California limited liability company
General Partner
By: ▇▇▇▇▇▇▇ PARTNERS SCS, INC.
a California corporation
Manager
By:
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Name:
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Title:
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"SERVICES COMPANY"
▇▇▇▇▇▇▇ PROPERTIES SERVICES, INC.
a Maryland corporation
By:
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Name:
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Title:
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S-9
The undersigned hereby agrees to perform and comply with its obligations
and duties under the foregoing Property Insurance Sharing Agreement.
"MANAGER"
▇▇▇▇▇▇▇ PROPERTIES SERVICES, INC.
a Maryland corporation
By:
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Name :
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Title:
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S-10
SCHEDULE 1
DESCRIPTION OF PROJECTS
PLAZA LAS ▇▇▇▇▇▇▇
135 and ▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, including an 8-story office
building and 12-story hotel, subterranean parking and associated plazas and
courtyards.
GLENDALE CENTER - PHASE II
The development lot at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇.
CORPORATE OFFICE
Offices at the Gas Company Tower and Solana Projects.
▇▇▇▇▇ FARGO TOWER -- ▇▇▇▇▇ FARGO CENTER NORTH
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, including a 54-story office
tower, subterranean parking and associated plazas and courtyards.
KPMG TOWER -- ▇▇▇▇▇ FARGO CENTER SOUTH
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, including a 44-story office
tower, subterranean parking and associated plazas and courtyards. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, including a 5-story parking garage.
LIBRARY TOWER
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, including a 74-story office
tower, subterranean parking, the "Bunker Hill Steps", associated plazas and
courtyards, Westlawn parking garage across the street, "▇▇▇▇▇▇▇ Gardens" public
space and associated improvements thereon, including a restaurant building.
GAS COMPANY TOWER
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, including a 54-story office
tower, subterranean parking and associated plazas and courtyards.
GLENDALE CENTER
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, including 1-and 14-story office
buildings, 5-story parking garage and associated plazas and courtyards.
808 S. OLIVE
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, including a 12-story parking
structure and associated driveways, ramps, plazas and courtyards.
SOLANA
Campus office project in Westlake and Southlake, Texas, including office
buildings and associated plazas, parks, parking areas, courtyards and supporting
structures.
SOLANA LAND
The 322 acre development land adjacent to the Solana Project in Westlake, Texas.
CERRITOS
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ and 12911 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, including
7-story and 4-story office buildings, a 5-story parking garage, surface parking
lot and associated plazas and courtyards.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
1733 and ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, including a lot under
construction and a vacant motel.
PLAZA LAS ▇▇▇▇▇▇▇ - PHASE II
The development parcel at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
PLAYA VISTA-WATER'S EDGE
The 6.53 acre parcel in the area known as Playa Vista in Los Angeles,
California
▇▇▇/▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ and ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, including
an 12-story residential building and parking lot.
GRAND GARAGE
Parking facility at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇.
SCHEDULE 2
Premium Allocation (Excluding Liability Insurance)
Initial Common Benefit Insurance
SCHEDULE 3
Coverage Allocation (Excluding Liability Insurance)
Initial Common Benefit Insurance
SCHEDULE 4
Liability Insurance Premium and Coverage Allocation
Initial Common Benefit Insurance