EXHIBIT 10.15
OPTION AGREEMENT
(1733 Ocean)
THIS OPTION AGREEMENT (this "Agreement") is made on November 11,
2002, by and between ▇▇▇▇▇▇▇ Properties, L.P., a Maryland limited partnership
("Optionee" or the "Operating Partnership"), and ▇▇▇▇▇▇▇ Partners - ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, LLC, a California limited liability company ("Optionor").
RECITALS
A. Optionor holds a leasehold interest in that certain real property
described in Exhibit A attached hereto (the "Land") pursuant to that certain
Ground Lease dated as of October 16, 1987 (as amended, the "Lease") between
▇▇▇▇▇▇▇ ▇▇▇▇▇, as trustee under that certain Declaration of Trust dated March
27, 1986 and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, as trustee of the ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Trust dated
March 9, 1982 (collectively, the "Landlord") and ▇▇▇▇▇▇▇ Partners Development,
Ltd., a California limited partnership (formerly known as ▇▇▇▇▇▇▇/▇▇▇▇▇▇
Partners Development, Ltd.), as predecessor-in-interest to Optionor.
B. The "Property" shall include (i) Optionor's interest in the
Lease, (ii) any interest Optionor may have in the Land and the buildings,
structures, and other improvements situated on the Land or hereinafter
constructed or acquired, (iii) any personal property owned by Optionor, situated
on the Land and used by Optionor in connection with the use, operation or
maintenance of the Property, and (iv) any intangible property owned by Optionor
and used solely in connection with the use, operation or maintenance of the
Property.
C. The Operating Partnership desires to have the right to acquire
all of the Property, without becoming obligated to acquire it, under specified
terms and conditions. As used herein, "Option" means the option to purchase the
Property under this Agreement.
D. The Operating Partnership desires to acquire the Option as part
of a series of transactions (collectively, the "Formation Transactions")
relating to the proposed initial public offering (the "Public Offering") of
common stock of ▇▇▇▇▇▇▇ Properties, Inc., a Maryland corporation (the
"Company"), the general partner of the Operating Partnership.
E. The Property will be (i) managed by the Operating Partnership or
an affiliate (the "Manager") pursuant to a separate property management and
leasing agreement between Optionor and the Manager to be executed concurrently
with the consummation of the Public Offering (the "Management Agreement"), and
(ii) developed by the Operating Partnership or an affiliate (the "Developer")
pursuant to a separate development agreement between Optionor and the Developer
to be executed concurrently with the consummation of the Public Offering (the
"Development Agreement").
F. Concurrently with the consummation of the Public Offering, the
Company and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III ("▇▇▇▇▇▇▇") will enter into a Non-Competition
Agreement (the "Non-Competition Agreement") through which ▇▇▇▇▇▇▇ will agree to
refrain from certain competitive activities subject to the terms and conditions
contained therein.
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AGREEMENT
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and conditions set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Operating Partnership and Optionor agree as follows:
1. Grant of Option. Optionor hereby grants to the Operating Partnership an
option to acquire all right, title and interest of Optionor in the Property on
an "as is" basis (subject to all matters of record) on the terms and conditions
set forth herein.
1.1 Effectiveness of Option. This Agreement and the Option granted
hereby shall not be effective until such time as the Public Offering is
consummated.
1.2 Commencement of Option. The Operating Partnership shall have the
right to exercise the Option at any time after the consummation of the Public
Offering until the expiration of the Option pursuant to Section 1.3.
1.3 Term of Option. The Option shall expire five (5) years after the
consummation of the Public Offering, unless earlier terminated as described in
Section 8 hereof (such term being the "Exercise Period" or the "Option Term").
1.4 Consents. The consummation of the transactions contemplated by
this Agreement are subject to any consents required under the "Lease", the
"Existing Financings", and the "New Financings" (each as hereinafter defined),
and are subject to the consents to be obtained in connection with the Public
Offering and the Formation Transactions.
1.5 Subordination. The Option granted by this Agreement and the
rights of the Operating Partnership hereunder are and shall be subordinate to
any Existing Financings and New Financings.
2. Process for Exercise of Option.
2.1 Exercise. The Option may be exercised during the Exercise Period
by delivery of written notice by the Operating Partnership to Optionor (the
"Exercise Notice"), stating that the Option is exercised on the terms set forth
in this Agreement. The date upon which the Exercise Notice is received by
Optionor shall hereinafter be referred to as the "Exercise Date." If the Option
is exercised, the Property shall be conveyed within 90 days of the Exercise
Date, subject to the terms of the Acquisition Agreement (as defined in Section
3.1).
2.2 Inspection. During the term of this Agreement, Optionor agrees
to permit the Operating Partnership and its agents to enter upon the Property,
subject to the rights of any tenants, at reasonable times to make such surveys,
inspections and tests as may reasonably be necessary in connection with its
examination of the Property. The Operating Partnership hereby agrees to repair
any damage it or its agents may cause to the Property as a result of any such
inspections or tests or any other related damage caused by the Operating
Partnership or its agents, and further agrees to indemnify, defend and hold
Optionor harmless from and against any and all claims, losses, damages and
expenses, including reasonable attorneys' fees, suffered by
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the Operating Partnership as a direct result of the Operating Partnership's or
the Operating Partnership's agents entry upon or acts upon the Property in
connection with any such inspections or tests or any other related damage caused
by the Operating Partnership or its agents.
2.3 Information. Optionor agrees to permit the Operating Partnership
and its agents to review all books, records and other documentation reasonably
requested by the Operating Partnership with respect to Optionor and the
Property, which are in Optionor's possession and control. Optionor will provide
(or cause Manager to provide) a report of the status of the Property on a
quarterly basis which shall include unaudited financials, the Property's
operating history and Optionor's current estimate of historical costs in the
Property.
3. Acquisition Process
3.1 Acquisition Escrow. Upon exercise of the Option by delivery of
either an Exercise Notice or an OP Notice (as defined in Section 4) by the
Operating Partnership, Optionor shall open, within five business days after the
Exercise Date, an escrow with a title insurance company selected by Optionor and
reasonably acceptable to the Operating Partnership at an office of such title
insurance company in Los Angeles County and shall notify the Operating
Partnership of the number and location of such escrow (the "Acquisition
Escrow"). Within 30 days after opening the Acquisition Escrow, the parties shall
execute a mutually acceptable acquisition agreement containing terms and
conditions customary in similar "as is" transactions and in any case consistent
with this Agreement (which acquisition agreement shall provide for the
determination of Fair Market Value pursuant to Section 3.3 below) (an
"Acquisition Agreement") and shall deliver one executed copy to each of Optionor
and the Operating Partnership, and one executed copy to the escrow holder.
Optionor and the Operating Partnership shall thereafter additionally execute,
acknowledge and deliver any and all other documents reasonably necessary or
appropriate to carry out the terms and conditions of the Acquisition Agreement,
including a grant deed or an assignment of lease. Optionor and the Operating
Partnership shall execute and deposit such additional escrow instructions as
shall be reasonably required by the escrow holder to consummate the transactions
contemplated herewith; provided, however, that in the event of any conflict
between the printed portion of any such additional instructions and the
provisions of this Agreement, the provisions of this Agreement shall control.
3.2 Acquisition Consideration.
(a) The acquisition consideration to be paid by the Operating
Partnership for the Property (the "Acquisition Consideration") pursuant to an
exercise of the Option under Section 2.1 shall be the lesser of the "Cost Value"
or the "Fair Market Value" (each as defined below) of the Property.
(i) The "Cost Value" shall be equal to the total of (A) the sum,
without duplication, of the total accumulated costs (except to
the extent of any liability assumed by the Operating
Partnership) of Optionor, ▇▇▇▇▇▇▇ or any affiliate of ▇▇▇▇▇▇▇
as of the Closing Date (as hereinafter defined), directly
related to the acquisition (including the acquisition of any
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partnership, membership or other interests), financing
(excluding interest paid to ▇▇▇▇▇▇▇ or affiliates of ▇▇▇▇▇▇▇),
leasing, entitlement, operation, maintenance and development
of the Property, including, without limitation, development
and management fees paid to affiliates of ▇▇▇▇▇▇▇ prior to the
consummation of the Public Offering to cover the Property's
proportionate share of overhead and costs and all such fees
paid to affiliates of the Operating Partnership after the
consummation of the Public Offering, property taxes,
insurance, predevelopment and entitlement costs and fees,
consultants' and attorneys' fees and third party financing
costs and fees (including principal to the extent used for the
benefit of the Property but without duplication of other
costs, and interest, original issue discount, origination
fees, points, and any prepayment, assumption or other fees,
costs and penalties incurred by Optionor or the Operating
Partnership in connection with the assumption or prepayment of
Property Indebtedness (as defined in Section 3.2(b)(i), in
each case in proportion to the extent the net proceeds of the
underlying indebtedness were used for the benefit of the
Property), provided Optionor provides evidence of such costs
reasonably acceptable to the Operating Partnership to support
Optionor's determination of the aggregate of such costs; and
(B) an amount equal to an eight percent (8%) per annum return,
compounded quarterly, on the sum, without duplication, of (x)
the aggregate amount of capital contributed to Optionor, net
of actual distributions made by Optionor on account of such
capital contributions, and (y) the aggregate principal amount
of all advances made to or for the benefit of Optionor by
▇▇▇▇▇▇▇, any affiliate of ▇▇▇▇▇▇▇ or any other direct or
indirect investor in Optionor (if any), net of actual
repayments on account of such advances by or on behalf of
Optionor, which return shall accrue from the date on which
each such capital contribution or advance was made, taking
proper account of the amount and timing of each such capital
contribution or advance and any amounts distributed or repaid
by Optionor on account of each such capital contribution or
advance. If at any time Optionor has retained distributable
cash in excess of the sum of $1,000,000 (excluding reserves
required by lenders or other applicable third parties relating
solely to the Property), such cash shall be deemed distributed
on account of capital contributed or repaid on account of
advances for purposes of this subclause (B), and Optionor
shall not be entitled to an eight percent (8%) return on any
amounts at any time that were retained by Optionor in excess
of $1,000,000 (excluding reserves required by lenders or other
applicable third parties relating solely to the Property).
(ii) The "Fair Market Value" shall mean the fair market sales value
of the Property that would be obtained in an arm's length
transaction between an informed and willing buyer and an
informed and willing seller, under no compulsion,
respectively, to buy or sell, and neither of which is related
to Optionor or Optionee, as determined using the procedures
described in
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Section 3.3 below, considering all matters of record except
for matters relating to Property Indebtedness.
(b) Upon the closing under the Acquisition Agreement, the
Acquisition Consideration shall be payable by the Operating Partnership first
through the assumption of all Property Indebtedness (including the payment of
any applicable prepayment, assumption or other fees, costs and penalties) and,
if the Operating Partnership so elects, the subsequent repayment thereof, and
second, with respect to any remaining unsatisfied portion of the Acquisition
Consideration, in the form of "OP Units" (as defined below) in the Operating
Partnership. For purposes of this Section 3.2(b), the value of Property
Indebtedness assumed by the Operating Partnership shall be the principal amount
thereof and any accrued and unpaid interest, plus any related prepayment,
assumption and other fees, costs and penalties incurred by the Operating
Partnership in connection with the Operating Partnership's assumption or
repayment of such Property Indebtedness. The value of OP Units shall be their
"Market Value" (as defined below). In lieu of the foregoing, upon the agreement
of both the Operating Partnership and Optionor, instead of issuing OP Units as
part of the Acquisition Consideration the Operating Partnership may pay all or
any portion thereof in cash.
(i) "Property Indebtedness" means (A) any financings or other
arrangements entered into by Optionor (or any affiliate of
Optionor) prior to the date hereof relating to the Property as
reflected on Schedule 3.2 attached hereto plus any mezzanine
or bridge financing and any other financings reflected on the
Preliminary Title Report prepared by Commonwealth Title
Insurance Company dated August 21, 2002, Order No. 1204866-27
(collectively, the "Existing Financings"), and (B) any
financing or other arrangement entered into by Optionor (or
any affiliate of Optionor) after the date hereof which relate
to the Property, including, without limitation, any mezzanine
or bridge financing, or amendments or extensions of the
Existing Financings (the "New Financings"), but only to the
extent the aggregate of all Existing Financings and New
Financings (plus any related prepayment, assumption or other
fees, costs and penalties) does not exceed the Acquisition
Consideration. Any financings or other arrangements relating
to the Property in excess of the amount of the Acquisition
Consideration shall be the responsibility of Optionor.
Optionor shall provide the Operating Partnership with notice
of any known default under any of the Existing Financings and
New Financings and shall provide copies of any written default
notices Optionor may receive from the lenders of such
financings.
(ii) The term "Market Value" means the average of the daily market
price of the common stock of the Company (or any successor
thereto) (the "Common Stock") for the ten (10) consecutive
trading days immediately preceding the closing of the
transactions under the Acquisition Agreement. For purposes of
determining Market Value, one (1) OP Unit shall equal one (1)
share of Common Stock, subject to any adjustments required
under the partnership agreement in effect for the Operating
Partnership or to reflect stock splits, reclassifications,
dividends in-kind, and the like.
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(iii) The term "OP Unit" shall have the meaning set forth in the
Amended and Restated Agreement of Limited Partnership of the
Operating Partnership (the "Limited Partnership Agreement").
(c) At the closing of the sale of the Property pursuant to the
Acquisition Agreement, all reserves held by or on behalf of Optionor as required
by applicable lenders or otherwise shall either be (i) returned to Optionor, or
(ii) transferred to the Operating Partnership in which event a credit shall be
applied to increase the Acquisition Consideration by the amount of such
transferred reserves.
(d) In exercising the Option, the Operating Partnership will use
reasonable commercial efforts to cooperate with Optionor (and current direct and
indirect owners of Optionor) to minimize any taxes, fees or prepayment penalties
payable in connection with such exercise or the assumption or repayment of debt
relating to the Property; provided that, except as otherwise set forth in this
Agreement, such cooperation shall not require the Operating Partnership to
unreasonably delay the closing under the Acquisition Agreement or require the
Operating Partnership to assume additional liabilities or incur any material
amount of out-of-pocket expenses.
(e) Pursuant to the Limited Partnership Agreement (as defined in
Section 3.2(b)(iii)), the OP Units are exchangeable into shares of the Common
Stock. It is currently anticipated that such shares of common stock will be
entitled to certain registration rights consistent with the Company's practice
at the time such OP Units are issued and subject to any restrictions or
agreements affecting such rights to which the Company or the Operating
Partnership is bound.
3.3 Fair Market Value Determination.
(a) Upon Optionor's receipt of an Exercise Notice, the parties shall
attempt in good faith to agree on the Fair Market Value. If the parties are
unable to agree on the Fair Market Value within ten (10) days after the
Acquisition Escrow is opened, then the Optionor shall deliver to the Operating
Partnership a written notice of Optionor's determination (the "Optionor's
Notice") of Fair Market Value within twenty (20) days following the expiration
of such ten (10) day period. If the Operating Partnership disputes the amount of
Fair Market Value set forth in Optionor's Notice, then, within five (5) days
after the date of Optionor's Notice, the Operating Partnership shall send
Optionor a written notice ("OP Dispute Notice") which disputes the Fair Market
Value set forth in Optionor's Notice and demands arbitration pursuant to this
Section 3.3, states the name and address of the person who shall act as
arbitrator on the Operating Partnership's behalf (provided such arbitrator meets
the requirements set forth below), and acknowledges that the Operating
Partnership will be bound by the results of the arbitration regardless of the
amount of the determination of Fair Market Value.
(b) The arbitration shall be conducted in Los Angeles, California in
accordance with the then prevailing rules of the American Arbitration
Association (or its successor) for the arbitration of commercial disputes,
except that the procedures mandated by such rules shall be modified as required
by this Section 3.3.
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(c) Within five (5) business days after receipt of the OP Dispute
Notice, Optionor shall notify the Operating Partnership of the name and address
of the person designated by Optionor to act as arbitrator on Optionor's behalf.
Each arbitrator must be a board certified Member of the Appraisal Institute of
real estate appraisers with at least five (5) years of full-time commercial
appraisal experience who is familiar with the fair market value of commercial
properties located in the vicinity of the Property.
(d) The two arbitrators chosen shall determine the Fair Market Value
in accordance with the following procedures. Optionor's arbitrator and the
Operating Partnership's arbitrator shall confer and attempt to mutually
determine the Fair Market Value within twenty-five (25) days after delivery of
the OP Dispute Notice. If the two arbitrators are unable to agree upon the Fair
Market Value within such twenty-five (25) day period, they shall immediately
appoint a third arbitrator possessing the qualifications set forth above. The
three arbitrators shall decide the dispute, if it has not been previously
resolved, by following the procedures set forth below. Each party shall pay the
fees and expenses of its respective arbitrator and both shall share the fees and
expenses of the third arbitrator. Each party shall pay its own attorneys' fees
and costs of witnesses.
(e) The three arbitrators shall determine the Fair Market Value in
accordance with the following procedures. Each shall state, in writing, his or
her determination of the Fair Market Value (the "Proposed Valuation"), supported
by the reasons therefor, and shall each make counterpart copies for the other
arbitrators. All of the arbitrators shall arrange for a simultaneous exchange of
their Proposed Valuations within twenty-five (25) days after appointment of the
third arbitrator. The Fair Market Value shall be the arithmetic average of the
three Proposed Valuations; provided, however, if any of the Proposed Valuations
are more than ten percent (10%) higher or lower than the "Medium Valuation" (as
hereinafter defined), then such Proposed Valuations shall be disregarded and the
Fair Market Value shall be the arithmetic average of the remaining Proposed
Valuations or, in the event two of the Proposed Valuations are disregarded
pursuant to this sentence, then the Fair Market Value shall be deemed to be the
Medium Valuation. The determination of Fair Market Value pursuant to this
Section 3.3 shall be final and binding upon the parties, without any right of
appeal. If any arbitrator fails to submit a Proposed Valuation, the arithmetic
average of the Proposed Valuations submitted by the other arbitrators shall be
the Fair Market Value. The term "Medium Valuation" shall mean the Proposed
Valuation which sets forth a proposed value of the Property between that of the
other two Proposed Valuations and which is neither the highest nor the lowest
valuation submitted by the arbitrators.
(f) The arbitrators shall have the right to consult experts and
competent authorities for factual information or evidence pertaining to a
determination of Fair Market Value. Any arbitrator may review any such
information and evidence and question any other arbitrator's experts and
authorities. The arbitrators shall render the decision in writing with
counterpart copies to each party. The arbitrators shall have no power to modify
the provisions of the Acquisition Agreement or this Agreement.
(g) The Closing Date under the Acquisition Agreement shall be
extended to the extent necessary to allow the arbitrators to make a
determination of the Fair Market Value as contemplated by this Section 3.3.
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3.4 Withholding. Optionor shall execute upon the conveyance of the
Property such certificates or affidavits reasonably necessary to document the
inapplicability of any federal or state tax withholding provisions, including
without limitation those referred to in Section 10.5 below. If Optionor fails to
provide such certificates or affidavits, the Operating Partnership may withhold
a portion of the Acquisition Consideration as required by the Internal Revenue
Code of 1986, as amended (the "Code") or applicable state law.
3.5 Taxes. If the transactions contemplated by this Agreement and
the Acquisition Agreement are consummated, then the following shall apply:
(a) Acquisition is Treated as Contribution. If the Acquisition
Consideration consists in whole or in part of OP Units, the transfer, assignment
and exchange contemplated by this Agreement shall constitute a "Capital
Contribution" to the Operating Partnership pursuant to Article 4 of the
Partnership Agreement and is intended to be governed by Section 721(a) of the
Code, and the Operating Partnership and Optionor agree to report this
transaction consistent with such treatment.
(b) Allocation of Acquisition Consideration. The Acquisition
Consideration shall be allocated in a manner reasonably agreed upon by the
Operating Partnership and Optionor. The Operating Partnership and Optionor agree
to (i) be bound by the allocation, (ii) act in accordance with the allocation in
the preparation of financial statements and filing of all tax returns and in the
course of any tax audit, tax review or tax litigation relating thereto and (iii)
take no position and cause their affiliates to take no position inconsistent
with the allocation for income tax purposes.
(c) Cooperation and Tax Disputes. Optionor and the Operating
Partnership shall provide each other with such cooperation and information
relating to the Property as the parties reasonably may request in (i) filing any
tax return, amended tax return or claim for tax refund, (ii) determining any
liability for taxes or a right to a tax refund, or (iii) conducting or defending
any proceeding in respect of taxes. Any time after the date hereof, the
Operating Partnership shall promptly notify Optionor in writing upon receipt by
the Operating Partnership or any of its affiliates of notice of (i) any pending
or threatened tax audits or assessments with respect to the Property and (ii)
any pending or threatened federal, state, local or foreign tax audits or
assessments of the Operating Partnership or any of its affiliates, in each case
which may affect the liabilities for taxes of Optionor with respect to any tax
period ending on or before the date on which the acquisition of the Property
occurs (the "Closing Date"). Optionor shall promptly notify the Operating
Partnership in writing upon receipt by Optionor of notice of any pending or
threatened federal, state, local or foreign tax audits or assessments relating
to the income, properties or operations of the Property. Each of the Operating
Partnership and Optionor may participate at its own expense in the prosecution
of any claim or audit with respect to taxes attributable to any taxable period
ending on or before the Closing Date, provided, that Optionor shall have the
right to control the conduct of any such audit or proceeding or portion thereof
for which Optionor (or its direct or indirect owners, if applicable) has
acknowledged liability (except as a partner of the Operating Partnership) for
the payment of any additional tax liability, and the Operating Partnership shall
have the right to control any other audits and proceedings. Notwithstanding the
foregoing, neither the Operating Partnership nor Optionor may settle or
otherwise resolve any such claim, suit or proceeding which could have an adverse
tax effect on
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the other party or its direct or indirect owners without the consent of the
other party, such consent not to be unreasonably withheld. Optionor and the
Operating Partnership shall retain all tax returns, schedules and work papers,
and all material records and other documents relating thereto, until the
expiration of the statute of limitations (and, to the extent notified by any
party, any extensions thereof) of the taxable years to which such tax returns
and other documents relate and until the final determination of any tax in
respect of such years.
(d) Tax Allocations. With respect to the Property that is directly
or indirectly contributed to the Operating Partnership as provided in Section
(a) above, the Operating Partnership and Optionor agree that the Operating
Partnership shall use the "traditional method", as described in Regulations
Section 1.704-3(b), to make allocations of taxable income and loss among the
partners of the Operating Partnership.
(e) Transfer Taxes. The Operating Partnership shall pay the cost of
all documentary transfer taxes arising from the sale of the Property pursuant to
the exercise by the Operating Partnership of the Option.
(f) Closing Costs and Prorations. All recording fees, escrow fees,
and other closing costs (except documentary transfer taxes as provided in
Section 3.5(e) above) shall be allocated according to custom and practice based
on the location of the Property. All income and expenses of the Property shall
be prorated according to custom and practice based on the location of the
Property.
(g) Survivability. This Section 3.5 shall survive the expiration or
earlier termination of this Agreement for a period of one year from the date of
such expiration or earlier termination.
4. Right of First Refusal. If Optionor receives an offer from an
unaffiliated third party to purchase the entire Property (the "Offer") at any
time during the "ROFR Term" (as hereinafter defined), then, subject only to
Optionee's right of first refusal contain in this Section 4, Optionor shall have
the right to convey the Property to such third party during the term of this
Agreement. If Optionor desires to accept the Offer, Optionor shall first give
written notice (the "ROFR Notice") thereof to the Operating Partnership (the
date the ROFR Notice is received by the Operating Partnership is referred to as
the "Notice Date"), which ROFR Notice shall include the proposed purchase price
and other material economic terms (collectively, the "Acquisition Terms") of the
proposed transfer of the Property. The ROFR Notice shall also include a written
statement of Optionor's determination of the Cost Value of the Property. The
Operating Partnership shall have 30 days from the Notice Date to give written
notice to Optionor (the "OP Notice") of its election to acquire the Property
either (i) for the same purchase price and on substantially the same other terms
as set forth in the Offer, or (ii) pursuant to the exercise of its Option under
Section 2.1. If the Operating Partnership fails to make such election on a
timely basis, the Operating Partnership's rights under this Agreement shall
expire and be of no further force or effect; provided, however, that such rights
shall be revived and reinstated in favor of the Operating Partnership in the
event Optionor has not consummated the transaction on terms which are generally
as good or more favorable to Optionor than the Acquisition Terms within 180 days
following the Notice Date. The term of the right of first refusal contained in
this
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Section 4 shall commence upon the consummation of the Public Offering and shall
expire on the date this Agreement terminates pursuant to Section 8 below (the
"ROFR Term").
5. Permitted Activities by Optionor; Property Management, Leasing and
Development. Subject to the terms of this Agreement, Optionor has the right to
own, entitle, finance, operate, lease, encumber, develop and maintain the
Property during the term of this Agreement; provided that during the term of the
Management Agreement and the Development Agreement (as applicable), all such
activities shall be conducted by or through the Manager and Developer,
respectively, in accordance with the Management Agreement and the Development
Agreement.
6. After Acquired Interests. Subject to the terms of this Agreement,
Optionor shall have the right to exercise its rights under the Lease, including,
without limitation, Optionor's right to purchase the fee interest in the Land
and related improvements pursuant to Articles XXIII, XXIV and XXV of the Lease.
The term "Property" includes any fee interest in the Land and improvements which
Optionor may acquire after the date hereof.
7. Marketing the Property for Sale. Optionor agrees not to affirmatively
market the Property for sale during the Option Term.
8. Termination of this Agreement. This Agreement shall terminate and be of
no further force or effect upon the earlier to occur of (i) the sale, transfer
or contribution (directly or indirectly) of all the parcels comprising the
Property to any party (including the Operating Partnership) in accordance with
this Agreement, (ii) the failure by the Operating Partnership to timely close on
the acquisition of the Property after opening the Acquisition Escrow, and (iii)
for purposes of Section 4 above only, the later of the expiration of the Option
Term and the expiration or earlier termination of the Non-Competition Agreement.
9. Procedure if Option Terminates.
9.1 Notice of Termination. If the Option expires or is earlier
terminated pursuant to this Agreement, Optionor will provide notice of such
expiration or termination to the Operating Partnership (the "Option Termination
Notice"). The delivery of the Option Termination Notice shall not be a condition
precedent to the effectiveness of such expiration or earlier termination.
9.2 Verification of Termination. Upon receipt of the Option
Termination Notice, the Operating Partnership agrees that, if the Option is
terminated, it will execute, acknowledge and deliver to Optionor in recordable
form with appropriate authorization for recording, within ten days from request
therefore, a quitclaim deed or any other document reasonably requested by
Optionor or a title insurance company to verify the termination of the Option.
9.3 Right to Documents. Upon receipt of the Option Termination
Notice, the Operating Partnership shall forthwith deliver (or cause to be
delivered) to Optionor and shall be deemed to have assigned to Optionor (without
the execution of further documentation or instruments), any governmental
applications, permits, maps, plans, specifications and other documents in its
possession or that it has made or contracted to be made respecting the Property,
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including without limitation all engineering reports, surveys, soil tests,
seismic studies, environmental reports, grading, flood control and drainage
plans, design renderings, market analyses, feasibility studies, proposed
tentative, parcel and final maps, and all correspondence with governmental
agencies and their personnel concerning the same.
9.4 Survivability. This Section 9 shall survive the expiration or
earlier termination of this Agreement.
10. Representations and Warranties. As of the date hereof, Optionor
represents and warrants to Optionee as follows:
10.1 Organization; Authority. Optionor is duly formed, validly
existing and in good standing (to the extent applicable) under the laws of its
jurisdiction of formation. Optionor is qualified to do business in the state
where the Property is located. Optionor has the legal capacity to enter this
Agreement.
10.2 Due Authorization. This Agreement and each agreement, document
and instrument executed and delivered by or on behalf of Optionor pursuant to
this Agreement constitutes, or when executed and delivered will constitute, the
legal, valid and binding obligation of Optionor, each enforceable against
Optionor in accordance with its terms.
10.3 Title to the Property. Optionor represents and warrants that
(a) it holds a leasehold interest in the Property pursuant to the Lease and (b)
it has not granted an option or right of first refusal to purchase the Property
to any party other than the Operating Partnership.
10.4 Consents and Approvals. Optionor has full right, authority,
power and capacity, and, except as may be obtained in connection with the Public
Offering or the Formation Transactions, no consent, waiver, approval or
authorization of any governmental entity, lender or other third party is
required for Optionor: (i) to enter into this Agreement and each agreement,
document and instrument to be executed and delivered by or on behalf of Optionor
pursuant to this Agreement; and (ii) except as required by the Lease or any
applicable financing agreement, to carry out the transactions contemplated
hereby and thereby.
10.5 Non-Foreign Status. Optionor is a United States person as
defined in the Code, and is, therefore, not subject to the provisions of the
Code relating to the withholding of sales proceeds to foreign persons, and is
not subject to any state withholding requirements.
10.6 No Brokers. Optionor has not employed or made any agreement
with any broker, finder or similar agent or any person or firm which will result
in the obligation of the Operating Partnership or any of its affiliates to pay
any finder's fee, brokerage fees or commission or similar payment in connection
with the transactions contemplated by this Agreement.
10.7 No Other Agreements to Sell. Except for the Option granted
hereby, Optionor has made no agreement and has no obligation (absolute or
contingent) to sell or option the Property.
11
10.8 Assets. The Property is the sole asset of the Optionor other
than cash or cash equivalents. Optionor covenants not to acquire any assets
other than those to be made part of or used in connection with the Property.
10.9 Capital Contributions. All cash contributions and advances made
to or for the benefit of Optionor have been used in connection with the
acquisition, entitlement, development, leasing, financing, operation, repair and
maintenance of the Property. Optionor covenants that all cash contributions and
advances made to or for the benefit of Optionor after the date hereof shall be
used in connection with the acquisition, entitlement, development, leasing,
financing, operation, repair and maintenance of the Property.
10.10 Indemnity. Optionor shall indemnify, defend and hold harmless
the Operating Partnership for all costs and expenses (including reasonable
attorneys' fees) incurred by the Operating Partnership as a result of a breach
of the representations contained in this Section 10.
11. Assignment. The Operating Partnership may not assign the Option
without Optionor's prior written consent, which consent may be conditioned,
withheld or delayed in Optionor's sole and absolute discretion, provided, that
the Operating Partnership may assign the Option without Optionor's consent to
(i) the Company, (ii) any direct or indirect controlled affiliate of the Company
or the Operating Partnership, or (iii) any entity into which the Operating
Partnership has merged or otherwise is the result of a business combination
directly involving the Operating Partnership.
12. Notices; Exercise of the Option. Any notice or demand which must or
may be given under this Agreement (including the exercise by the Operating
Partnership of the Option) or by law shall, except as otherwise provided, be in
writing and shall be deemed to have been given (i) when physically received by
personal delivery (which shall include the confirmed receipt of a telecopied
facsimile transmission), or (ii) three business days after being deposited in
the United States certified or registered mail, return receipt requested,
postage prepaid, or (iii) one business day after being deposited with a
nationally known commercial courier service providing next day delivery service
(such as Federal Express).
Any such notice shall be addressed and delivered or telecopied (a)
in the case of a notice to the Operating Partnership at the following address
and facsimile number:
▇▇▇▇▇▇▇ Properties, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
▇▇▇▇ Lammas
and (b), in the case of a notice to Optionor, to the address and facsimile
number set forth on the Signature Page hereof.
12
13. Dispute Resolution. The parties hereby agree that, in order to obtain
prompt and expeditious resolution of any disputes under this Agreement, each
claim, dispute or controversy of whatever nature, arising out of, in connection
with, or in relation to the interpretation, performance or breach of this
Agreement (or any other agreement contemplated by or related to this Agreement
or any other agreement between the parties), including without limitation any
claim based on contract, tort or statute, or the arbitrability of any claim
hereunder (an "Arbitrable Claim"), shall, subject to Section 13.1 below, be
settled by final and binding arbitration conducted in Los Angeles, California.
The arbitrability of any Arbitrable Claims under this Agreement shall be
resolved in accordance with a two-step dispute resolution process administered
by Judicial Arbitration & Mediation Services, Inc. ("JAMS") involving, first,
mediation before a retired judge from the JAMS panel, followed, if necessary, by
final and binding arbitration before the same, or if requested by either party,
another JAMS panelist. Such dispute resolution process shall be confidential and
shall be conducted in accordance with California Evidence Code Section 1119.
13.1 Mediation. In the event any Arbitrable Claim is not resolved by
an informal negotiation between the parties within fifteen (15) days after
either party receives written notice that a Arbitrable Claim exists, the matter
shall be referred to the Los Angeles, California office of JAMS, or any other
office agreed to by the parties, for an informal, non-binding mediation
consisting of one or more conferences between the parties in which a retired
judge will seek to guide the parties to a resolution of the Arbitrable Claims.
The parties shall select a mutually acceptable neutral arbitrator from among the
JAMS panel of mediators. In the event the parties cannot agree on a mediator,
the Administrator of JAMS will appoint a mediator. The mediation process shall
continue until the earliest to occur of the following: (i) the Arbitrable Claims
are resolved, (ii) the mediator makes a finding that there is no possibility of
resolution through mediation, or (iii) thirty (30) days have elapsed since the
Arbitrable Claim was first scheduled for mediation.
13.2 Arbitration. Should any Arbitrable Claims remain after the
completion of the mediation process described above, the parties agree to submit
all remaining Arbitrable Claims to final and binding arbitration administered by
JAMS in accordance with the then existing JAMS Arbitration Rules. Neither party
nor the arbitrator shall disclose the existence, content, or results of any
arbitration hereunder without the prior written consent of all parties. Except
as provided herein, the California Arbitration Act shall govern the
interpretation, enforcement and all proceedings pursuant to this subparagraph.
The arbitrator is without jurisdiction to apply any substantive law other than
the laws selected or otherwise expressly provided in this Agreement. The
arbitrator shall render an award and a written, reasoned opinion in support
thereof. Such award may include reasonable attorneys' fees to the prevailing
party. Judgment upon the award may be entered in any court having jurisdiction
thereof.
13.3 Costs. The parties shall bear their respective costs incurred
in connection with the procedures described in this Section 13, except that the
parties shall equally share the fees and expenses of the mediator or arbitrator
and the costs of the facility for the hearing.
13.4 Survivability. This dispute resolution process contained in
this Section 13 shall survive the expiration or earlier termination of this
Agreement. The parties expressly
13
acknowledge that by signing this Agreement, they are giving up their respective
right to a jury trial.
14. Miscellaneous.
14.1 Amendment. This Agreement may not be amended except by an
instrument in writing signed by both Optionor and the Operating Partnership.
14.2 Entire Agreement; Counterparts; Applicable Law. This Agreement
(and to the extent applicable, the Non-Competition Agreement, Management
Agreement and Development Agreement) (a) constitutes the entire agreement and
supersedes all prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof, (b) may be
executed in one or more counterparts, each of which will be deemed an original
and all of which shall constitute but one and the same instrument and (c) shall
be governed in all respects by the laws of California without giving effect to
the conflict of law provisions thereof.
14.3 Severability. If any provision of this Agreement, or the
application thereof, is for any reason held to any extent to be invalid or
unenforceable, the remainder of this Agreement and application of such provision
to other persons or circumstances will be interpreted so as reasonably to effect
the intent of the parties hereto. The parties further agree to replace such void
or unenforceable provision of this Agreement with a valid and enforceable
provision that will achieve, to the extent possible, the economic, business and
other purposes of the void or unenforceable provision and to execute any
amendment, consent or agreement deemed necessary or desirable by the Operating
Partnership to effect such replacement.
14.4 Binding Effect. This Agreement shall be binding upon, and shall
be enforceable by and inure to the benefit of, Optionor and the Operating
Partnership and their respective successors and permitted assigns.
14.5 Equitable Remedies. The parties hereto agree that irreparable
damage would occur if any provision of this Agreement was not performed in
accordance with its specific terms or was otherwise breached. It is accordingly
agreed that the parties shall be entitled to an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the terms and
provisions hereof in any federal or state court located in the California (as to
which the parties agree to submit to jurisdiction for the purposes of such
action), this being in addition to any other remedy to which they are entitled
at law or in equity.
14.6 Recording. Subject to applicable consents required under the
Lease or any financing related to the Property, Optionee shall have the right to
record a memorandum of this Agreement in the real property records of the county
in which the Property is situated. If Optionee records such a memorandum,
Optionee covenants and agrees to record the appropriate notice of termination or
cancellation upon the expiration or earlier termination of this Agreement.
14.7 Reliance. Each party to this Agreement acknowledges and agrees
that it is not relying on tax advice or other advice from the other party to
this Agreement, and that it has or will consult with its own advisors.
14
14.8 Survival. Except as otherwise provided in this Agreement, it is
the intention of the parties hereto that the provisions of this Agreement that
contemplate performance after the Closing Date and the obligations of the
parties not fully performed on the Closing Date shall survive the Closing Date
and shall not be deemed to be merged into or waived by the instruments executed
as of Closing Date.
(Signature Page Follows)
15
OPTION AGREEMENT
SIGNATURE PAGE
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as of this 11th day of November , 2002.
OPTIONOR
▇▇▇▇▇▇▇ PARTNERS - ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, LLC,
a California limited liability company
By: MP-1733 Ocean Manager I, Inc.,
a California corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
---------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
Title:
OPTIONOR'S NOTICE ADDRESS
▇▇▇▇▇▇▇ Partners
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
S-1
OPERATING PARTNERSHIP
▇▇▇▇▇▇▇ Properties, L.P.,
a Maryland limited partnership
By: ▇▇▇▇▇▇▇ Properties, Inc.,
a Maryland corporation
Its: General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Financial Officer
S-2