EXHIBIT 10.16
OPTION AGREEMENT
(Solana)
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 - Solana
Limited Partnership, a Texas limited partnership ("Optionor").
RECITALS
A. Optionor owns that certain real property as described in Exhibit A
attached hereto (the "Land").
B. The "Property" shall include (i) Optionor's interest in the Land and
any 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 (in whole or in legally subdivided portions), without becoming
obligated to acquire it, under specified terms and conditions. As used herein,
"Option" means the option to purchase the Property (or any legally subdivided
portion thereof) 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.
G. After the date hereof, Optionor intends to distribute the Property to
a newly formed entity affiliated with Optionor (the "New Entity") that will be
bound by the terms and conditions of this Agreement.
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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
(or any legally subdivided portion thereof) 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 ten (10) years after the
consummation of the Public Offering, unless earlier terminated as described in
Section 7 hereof (such term being the "Exercise Period" or the "Option Term").
1.4 Exercise of Option. Optionee may exercise the Option as to the
entire Property or may, from time to time throughout the Option Term, elect to
acquire one or more legally subdivided portions of the Property ("Portion"). If
Optionee elects to exercise the Option with respect to one or more Portions, the
remainder of the Property shall remain subject to the Option. It being
understood that the Option shall remain in effect as to the remaining portion of
the Property subject to Section 7 below.
1.5 Consents. The consummation of the transactions contemplated by
this Agreement are subject to any consents required under 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.
1.6 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 Exercise Notice shall clearly identify whether it applies
to the entire Property or a Portion. 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 or the Portion (as the case may be) shall
be
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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 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 either Tarrant or ▇▇▇▇▇▇ 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 (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 special warranty deed.
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.
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3.2 Acquisition Consideration.
(a) The acquisition consideration to be paid by the Operating
Partnership for the Property or any Portion (the "Acquisition Consideration")
pursuant to an exercise of the Option under Section 2.1 shall be the "Cost Value
of the Property" or the "Cost Value of the Portion", respectively, as defined
below.
(i) The "Cost Value of the Property" 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 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 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
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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 "Cost Value of the Portion" shall be the allocable
portion of the Cost Value of the Property considering the
relative location, configuration, entitlement, condition,
improvements, environmental status, nature and size of the
Portion in relation to the remainder of the Property;
provided, however, that the sum of the Cost Value of the
Portions shall not exceed the aggregate Cost Value of the
Property. Notwithstanding anything to the contrary
contained herein, the Cost Value of the Portion shall
include the outstanding balance (including all applicable
prepayment, assumption or other fees, costs and penalties)
of all Existing Financing and New Financing which, by
their terms or as may otherwise be required by the lenders
thereunder, must be assumed or prepaid upon a transfer of
such Portion by Optionor.
(b) Upon the closing under an 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 (i) any financings or other
arrangements entered into by Optionor (or any affiliate of
Optionor) prior to the date hereof relating to the
Property or the Portion (as applicable) 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 September 25, 2002, Order No.
282527CDK (collectively, the "Existing Financings"), and
(ii) any financing or other arrangement entered into by
Optionor (or any affiliate of Optionor) after the date
hereof which relate to the Property or the Portion (as
applicable), 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 Cost
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Value of the Property. Notwithstanding anything to the
contrary contained herein, the Property Indebtedness for
purposes of a transfer of a Portion shall include the
outstanding balance (including all applicable prepayment,
assumption or other fees, costs and penalties) of all
Existing Financing and New Financing which, by their terms
or as may otherwise be required by the lenders thereunder,
must be assumed or prepaid upon a transfer of such Portion
by Optionor as contemplated by this Agreement. Any
financings or other arrangements relating to the Property
in excess of the amount of the Cost Value of the Property
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.
(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 or a Portion (as
applicable) pursuant to an Acquisition Agreement, all reserves held by or on
behalf of Optionor as required by applicable lenders or otherwise with respect
to the Property or the Portion (as applicable) 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
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restrictions or agreements affecting such rights to which the Company or the
Operating Partnership is bound.
3.3 Withholding. Optionor shall execute upon the conveyance of the
Property or any Portion 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 9.5 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.
3.4 Taxes. If the transactions contemplated by this Agreement and an
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 or
a Portion (as applicable) 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
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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 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 or a Portion (as
applicable) 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 or a
Portion (as applicable) 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 or the Portion (as applicable). All income and
expenses of the Property or the Portion (as applicable) shall be prorated
according to custom and practice based on the location of the Property or the
Portion.
(g) Survivability. This Section 3.4 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 or a Portion (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 or Portion (as applicable)
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 or the Cost Value of the Portion
(as applicable). Optionor's determination of the Cost Value of the Portion shall
be deemed conclusive and final absent a clear demonstration by the Operating
Partnership of fraud or willful misconduct on the part of Optionor with respect
to such determination, and such determination shall reduce the Cost Value of the
Property for purposes of any remaining portion of the Property subject to the
terms of this Agreement. The Operating Partnership shall have 30 days from the
Notice Date to give written
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notice to Optionor (the "OP Notice") of its election to acquire the Property or
the Portion (as applicable) 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 Section 4 shall commence upon
the consummation of the Public Offering and shall expire on the date this
Agreement terminates pursuant to Section 7 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. Marketing the Property for Sale. Optionor agrees not to affirmatively
market the Property for sale during the Option Term.
7. 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 an 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. This Agreement shall terminate and be of no further force or effect
as to any Portion if the Operating Partnership fails to timely close on the
acquisition of such Portion after opening an Acquisition Escrow with respect to
such Portion.
8. Procedure if Option Terminates
8.1 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.
8.2 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
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reasonably requested by Optionor or a title insurance company to verify the
termination of the Option.
8.3 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,
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.
8.4 Survivability. This Section 8 shall survive the expiration or
earlier termination of this Agreement.
9. Representations and Warranties. As of the date hereof, Optionor
represents and warrants to Optionee as follows:
9.1 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.
9.2 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.
9.3 Title to the Property. Optionor represents and warrants that (a)
it holds a fee interest in the Property 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.
9.4 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 any applicable
financing agreements, to carry out the transactions contemplated hereby and
thereby.
9.5 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.
9.6 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
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commission or similar payment in connection with the transactions contemplated
by this Agreement.
9.7 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.
9.8 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.
9.9 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.
9.11 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 9.
10. 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.
11. 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:
11
▇▇▇▇▇▇▇ 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. 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 12.1
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.
12.1 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.
12.2 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
12
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.
12.3 Costs. The parties shall bear their respective costs incurred
in connection with the procedures described in this Section 12, 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.
12.4 Survivability. This dispute resolution process contained in
this Section 12 shall survive the expiration or earlier termination of this
Agreement. The parties expressly acknowledge that by signing this Agreement,
they are giving up their respective right to a jury trial.
13. Miscellaneous.
13.1 Amendment. This Agreement may not be amended except by an
instrument in writing signed by both Optionor and the Operating Partnership.
13.2 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.
13.3 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.
13.4 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.
13.5 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.
13
13.6 Recording. Subject to applicable consents required under 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.
13.7 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.
13.8 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)
14
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 - 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: Manager
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