EXHIBIT 10.5
REDEMPTION AND RELEASE AGREEMENT
This REDEMPTION AND RELEASE AGREEMENT (the "Agreement") is entered into
as of April 3, 2001 by and between ▇▇▇▇▇▇▇ Pacific Properties, Inc., a Maryland
corporation (the "Company"), ▇▇▇▇▇▇▇ Pacific Operating Partnership, L.P., a
Delaware limited partnership ("BPOP"), and the holders of all of the outstanding
Series 1997-A Preferred Units ("Units") of limited partnership interest of BPOP
identified on EXHIBIT A hereto (collectively, the "Preferred Unitholders").
WHEREAS, each of the Preferred Unitholders is the record owner of the
number of Units set forth beside its respective name on EXHIBIT A hereto.
WHEREAS, the Company, BPOP and the Preferred Unitholders are parties to
that certain Agreement of Limited Partnership, as amended, of BPOP (the
"Partnership Agreement"), which provides for the rights and obligations of the
Partners (as defined therein) and the administration and termination of BPOP;
WHEREAS, pursuant to that certain Agreement to Contribute, dated as of
December 5, 1997 (the "Contribution Agreement"), by and among the Company, BPOP,
the Preferred Unitholders and the Contributors (as such term is defined in the
Partnership Agreement), the Preferred Unitholders acquired an aggregate of
400,000 Units;
WHEREAS, the Company or one of its subsidiaries intends to sell
nineteen properties known as the Golden State Portfolio to ▇▇▇▇▇▇▇▇▇▇ ▇▇, Inc.
on or after April 2, 2001 (the "▇▇▇▇▇▇▇▇▇▇ Purchase"), and has entered into a
purchase contract with respect to such sale;
WHEREAS, BPOP desires to exercise its right to redeem the Units from
the Preferred Unitholders, in accordance with Section 10 of Exhibit B to the
Thirteenth Amendment to the Partnership Agreement (the "Thirteenth Amendment")
relating to the Units, on or after the date on which the ▇▇▇▇▇▇▇▇▇▇ Purchase is
consummated; and
WHEREAS, all terms not otherwise defined herein shall have the
respective meanings ascribed to them in the Thirteenth Amendment.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants contained in this Agreement, the parties hereto agree as follows:
SECTION 1. REDEMPTION.
1.1. REDEMPTION OF THE UNITS. BPOP shall exercise its right to
redeem for cash all of the Units held by the Preferred Unitholders on the date
that the ▇▇▇▇▇▇▇▇▇▇ Purchase is
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consummated or on the following Business Day (the date of such redemption being
referred to herein as the "Redemption Date") at a price per Unit equal to the
Mandatory Redemption Price as of the Redemption Date. The parties hereto agree
that as of April 3, 2001, the Mandatory Redemption Price per Unit will equal
$26.261112, of which $0.011112 represents the Accrued Distributions per Unit.
During the period beginning on April 3, 2001 and ending on April 13, 2001 the
Accrued Distributions per Unit, and therefore the Mandatory Redemption Price per
Unit, shall increase by $0.005556 for each day after April 3, 2001 up to but not
including the Redemption Date; PROVIDED, HOWEVER, that nothing in this Agreement
is intended to address what the Mandatory Redemption Price would be for any date
after April 13, 2001. The Company shall direct the escrow agent with whom
▇▇▇▇▇▇▇▇▇▇ ▇▇, Inc. is depositing the funds in respect of the ▇▇▇▇▇▇▇▇▇▇
Purchase to transfer all amounts due to each Preferred Unitholder pursuant to
this Section 1.1 directly to such Preferred Unitholder in accordance with the
instructions set forth in Section 1.3 below.
1.2. NOTICE. Notwithstanding anything contained in Section 10(b) of
the Thirteenth Amendment or otherwise to the contrary and provided that the
Units are redeemed in accordance with Section 1.1 above on or prior to April 13,
2001, BPOP and the Preferred Unitholders hereby agree that this Agreement shall
constitute valid and effective notice by BPOP to the Preferred Unitholders of
BPOP's exercise of its right to redeem the Preferred Units under Section 10(b)
of the Thirteenth Amendment.
1.3. PAYMENT. On the Redemption Date, the Company or BPOP shall pay
the amounts set forth in Section 1.1 above in immediately available funds prior
to 4:00 p.m. New York City time according to the following instructions:
MJL ASSOCIATES:
Bank Name: Bear ▇▇▇▇▇▇▇
New York, NY
ABA #:
Account Name: MJL Associates
Account #:
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Phone: ▇▇▇.▇▇▇.▇▇▇▇
SAB ASSOCIATES:
Bank Name: Bear ▇▇▇▇▇▇▇
New York, NY
ABA #:
Account Name: SAB Associates
Account #:
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Phone: ▇▇▇.▇▇▇.▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇:
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Bank Name: US Trust of California
Los Angeles, CA
ABA #:
Account Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Account #:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇:
Bank Name: Bear ▇▇▇▇▇▇▇
New York, NY
ABA #:
Account Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Account #: 748-54515-17-GH5
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Phone:
▇▇▇▇ AND ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ FAMILY TRUST:
Bank Name: Sanwa Bank California
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ABA #:
Account Name: ▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Family Trust
Account #:
Attention: ▇▇▇ ▇▇▇▇▇
Phone: ▇▇▇.▇▇▇.▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇:
Bank Name: Citizen's National Bank of Texas
Bellaire, TX
ABA #:
Account Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Account #:
Phone: ▇▇▇.▇▇▇.▇▇▇▇
1.4. CANCELLATION OF UNITS. Notwithstanding anything to the
contrary set forth in Section 10(c)(ii) of the Thirteenth Amendment or
otherwise, upon the full payment of the amounts set forth in Section 1.1 above
in accordance with Section 1.3 above, the Preferred Unitholders will cease to be
Partners of BPOP, will cease to be Unitholders with respect to the Units, will
have no interest in or claims against BPOP or the Company by virtue of such
Units and will have no voting or other rights with respect to such Units, and
such Units will be deemed to be cancelled.
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SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE PREFERRED UNITHOLDERS.
Each of the Preferred Unitholders severally, and not jointly,
represents and warrants to the Company and BPOP as follows:
2.1. AUTHORITY OF PREFERRED UNITHOLDERS. The Preferred Unitholder
has full right, authority, power and capacity to enter into this Agreement and
to carry out the transactions contemplated hereby. This Agreement constitutes a
valid and binding obligation of the Preferred Unitholder, enforceable against
such Preferred Unitholder in accordance with its terms.
2.2. HOLDER STATUS. The Preferred Unitholder is (i) the "holder"
(as such term is used in Section 10(b) and Section 10(c) of the Thirteenth
Amendment) of the number of Units set forth beside its name on EXHIBIT A hereto,
and (ii) the only person or entity entitled to receive any notices from the
Company or BPOP concerning, or any payments to be made by the Company or BPOP
with respect to, such Units pursuant to the Thirteenth Amendment.
SECTION 2A. REPRESENTATIONS AND WARRANTIES REGARDING CONTRIBUTORS.
Each of the Preferred Unitholders, other than ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
severally, and not jointly, represents and warrants to the Company and BPOP that
each of the Contributors identified on EXHIBIT B hereto has been dissolved in
accordance with the laws of their respective states of formation and the terms
of their respective formation documents.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND BPOP
3.1. AUTHORITY OF THE COMPANY. The Company hereby represents and
warrants to the Preferred Unitholders that the Company has full right,
authority, power and capacity to enter into this Agreement and to carry out the
transactions contemplated hereby. This Agreement constitutes a valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms.
3.2. AUTHORITY OF BPOP. BPOP hereby represents and warrants to the
Preferred Unitholders that BPOP has full right, authority, power and capacity to
enter into this Agreement and to carry out the transactions contemplated hereby.
This Agreement constitutes a valid and binding obligation of BPOP, enforceable
against BPOP in accordance with its terms.
SECTION 4. RELEASE BY THE COMPANY AND BPOP.
For and in consideration of the covenants and promises set forth in
this Agreement and subject to the payment by or on behalf of BPOP of the amounts
set forth in Section 1.1 hereof, each of the Company and BPOP, on behalf of
itself and its assigns, representatives, agents, subsidiaries and affiliates,
hereby fully and finally releases, acquits and forever discharges the Preferred
Unitholders, their heirs, executors, predecessors, successors and past or
present affiliates and subsidiaries, and each of their present and former
stockholders and the present and
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former officers, directors, partners, members, stockholders, trustees,
representatives, employees, principals, agents, affiliates, subsidiaries,
predecessors, successors, assigns, beneficiaries, insurers and attorneys of any
of them (collectively, the "Preferred Released Parties") from any and all
actions, debts, claims, counterclaims, demands, liabilities, damages, causes of
action, costs and expenses of every kind and nature whatsoever, in law or in
equity, whether known or unknown, which the Company or BPOP had, has, or may
have had at any time in the past until and including the date hereof against the
Preferred Released Parties, or any of them. Notwithstanding any other provision
of this Agreement to the contrary, this paragraph shall not apply to any and all
actions, claims, counterclaims, demands, liabilities, damages, causes of action,
costs and expenses arising out of or relating to the enforcement by the Company
or BPOP of their rights under the express terms of this Agreement. The Company
and BPOP agree not to institute, bring or make any litigation, lawsuit, claim or
action against any of the Preferred Release Parties with respect to any and all
claims released in this Agreement. Each of the Company and BPOP hereby
represents and warrants that it has adequate information regarding the terms of
this Agreement, the scope and effect of the releases set forth herein, and all
other matters encompassed by this Agreement to make an informed and
knowledgeable decision with regard to entering into this Agreement, and that it
has consulted with counsel and independently and without reliance upon the
Preferred Release Parties made its own analysis and decision to enter into this
Agreement.
SECTION 5. RELEASE BY THE PREFERRED UNITHOLDERS.
For and in consideration of the covenants and promises set forth in
this Agreement and subject to the payment by or on behalf of BPOP of the amounts
set forth in Section 1.1 hereof, each Preferred Unitholder, on behalf of itself
and its assigns, representatives, beneficiaries, heirs, executors, agents,
subsidiaries and affiliates, hereby fully and finally releases, acquits and
forever discharges the Company, BPOP, their predecessors, successors and past or
present affiliates and subsidiaries, and each of their present and former
stockholders and unitholders and the present and former officers, directors,
partners, members, stockholders, unitholders, trustees, representatives,
employees, principals, agents, affiliates, subsidiaries, predecessors,
successors, assigns, beneficiaries, insurers and attorneys of any of them
(collectively, the "BPOP Released Parties") from any and all actions, debts,
claims, counterclaims, demands, liabilities, damages, causes of action, costs
and expenses of every kind and nature whatsoever, in law or in equity, whether
known or unknown, which the Preferred Unitholder had, has, or may have had at
any time in the past until and including the date hereof against the BPOP
Released Parties, or any of them, including, but not limited to, any claims
which relate to or arise out of the Preferred Unitholder's rights or status as a
present or former stockholder of the Company, as a present or former holder of
units of limited partnership interest in BPOP or as a present or former partner
of BPOP, including, without limitation, any claims for additional shares of any
capital stock of the Company, additional units of limited partnership interest
in BPOP or additional payments or distributions from the Company or BPOP.
Notwithstanding any other provision of this Agreement to the contrary, this
paragraph shall not apply to any and all actions, claims, counterclaims,
demands, liabilities, damages, causes of action, costs and expenses arising out
of or relating to the enforcement by a Preferred Unitholder of its rights under
the express terms of this Agreement. The Preferred Unitholders agree not to
institute, bring or make any litigation,
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lawsuit, claim or action against the Company, BPOP or any BPOP Released Party
with respect to any and all claims released in this Agreement. Each of the
Preferred Unitholders hereby represents and warrants that it has adequate
information regarding the terms of this Agreement, the scope and effect of the
releases set forth herein, and all other matters encompassed by this Agreement
to make an informed and knowledgeable decision with regard to entering into this
Agreement, and that it has consulted with counsel and independently and without
reliance upon the BPOP Released Parties made its own analysis and decision to
enter into this Agreement.
SECTION 6. ADDITIONAL AGREEMENTS.
6.1. CONTRIBUTION AGREEMENT. The parties hereto agree that, upon
payment of the amounts set forth in Section 1.1 hereof in accordance with
Section 1.3 hereof, the Contribution Agreement, and all of the agreements
entered into in connection therewith by the Company, BPOP and/or one or more of
their affiliates, on the one hand, and each of the Preferred Unitholders and/or
one or more of their affiliates, on the other hand, shall hereby terminate and
shall have no further force and effect and none of the parties to any of such
agreements shall have any further rights or obligations thereunder.
6.2. PARTNERSHIP AGREEMENT. The parties hereto agree that, upon
payment of the amounts set forth in Section 1.1 hereof in accordance with
Section 1.3 hereof, (i) the Partnership Agreement shall have no further force
and effect between or among the Company, BPOP and/or one or more of their
affiliates, on the one hand, and each of the Preferred Unitholders and/or one or
more of their affiliates, on the other hand, and (ii) the Company, BPOP and/or
one or more of their affiliates, on the one hand, and each of the Preferred
Unitholders and/or one or more of their affiliates, on the other hand, shall
have no further rights against or obligations to the others thereunder.
6.3. HOLDER STATUS. Each of the Preferred Unitholders agrees,
severally and not jointly, that it shall remain through and including the
redemption of the Units pursuant to the terms hereof (i) the "holder" (as such
term is used in Section 10(b) and Section 10(c) of the Thirteenth Amendment) of
the number of Units set forth beside its respective name on EXHIBIT A hereto and
(ii) the only person or entity entitled to receive any notices from the Company
or BPOP concerning, or any payments to be made by the Company or BPOP with
respect to, such Units pursuant to the Thirteenth Amendment.
SECTION 7. MISCELLANEOUS.
7.1. AMENDMENT. This Agreement may be amended only by a written
instrument executed by all of the parties hereto.
7.2. SEVERABILITY. Any provision of this Agreement which is found
to be prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
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such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
7.3. GOVERNING LAW. This Agreement shall be deemed to be a contract
under the laws of the State of Delaware and shall be construed and endorsed in
accordance with such laws, without regard to the doctrine of conflicts of laws.
7.4. CAPTIONS. The captions in this Agreement are for convenience
of reference only and shall not define or limit the provisions hereof.
7.5. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original but all of which together shall constitute one and the same instrument.
7.6. ASSIGNMENT. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, legal
representatives, successors and permitted assigns. This Agreement shall not be
assigned by any party hereto without the prior written consent of the other
parties.
7.7. CONSENT TO JURISDICTION. Each party hereto hereby irrevocably
and unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the courts of the State of Delaware and of the United States of
America located in the State of Delaware, and any Appellate Court from any
thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such
Delaware State, or, to the extent permitted by law, in such federal, court. Each
of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Agreement shall affect any right that any party hereto may otherwise have to
bring any action or proceeding relating to this Agreement in the courts of any
jurisdiction.
7.8. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties contained herein shall survive the execution and
delivery of this Agreement and the redemption of the Units.
7.9. SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, including, without
limitation, specific performance to enforce this Agreement, in addition to any
other remedy at law or equity. The parties further agree to waive any
requirement for the posting of any bond in connection with any such remedy.
7.10. TERMINATION. This Agreement shall terminate and have no
further force and effect if the Redemption Date and the payment of the amounts
provided for in Section 1.1 hereof do not occur on or prior to April 13, 2001.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
▇▇▇▇▇▇▇ PACIFIC PROPERTIES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Executive Officer
▇▇▇▇▇▇▇ PACIFIC OPERATING
PARTNERSHIP, L.P.
By: ▇▇▇▇▇▇▇ Pacific Properties, Inc.
Its: General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Executive Officer
MJL ASSOCIATES, a California Limited
Partnership
By: MJL Investments, Inc., a California
corporation, as General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: President
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ FAMILY TRUST
dated February 2, 1999
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustee
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SAB ASSOCIATES, a California Limited
Partnership
By: SAB Investments, Inc., a California
corporation, as general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
EXHIBIT A
UNIT OWNERSHIP
NAME OF SELLING UNITHOLDER NUMBER OF UNITS
-------------------------- ---------------
MJL Associates, A California Limited Partnership 142,745
SAB Associates, A California Limited Partnership 48,366
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 102,763
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 47,581
▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Family Trust 51,084
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 7,461
-------
---------------
TOTAL 400,000
=======
EXHIBIT B
CONTRIBUTORS:
HPBA - Benicia Associates, L.L.C.
HPBA - Madera Associates, L.L.C.
HPBA - ▇▇▇▇▇▇ Associates, L.L.C.
HPBA - Redondo Beach Associates, L.L.C.
HPBA - Suisun Associates, L.L.C.
HPBA - ▇▇▇▇▇▇ Associates, L.L.C.
HPBA - Sacramento Associates, L.L.C.
HPBA - Westminster Associates, L.L.C.
HPBA II - AC Sacramento Associates, L.L.C.
HPBA II - ▇▇▇▇ Gardens Associates, L.L.C.
HPBA II - Bellflower Associates, L.L.C.
HPBA II - Fremont Associates, L.L.C.
HPBA II - Menifee Associates, L.L.C.
HPBA II - Placerville Associates, L.L.C.
HPBA II - San ▇▇▇▇ Associates, L.L.C.
HPBA II - San Marcos Associates, L.L.C.
HPBA II - Santa ▇▇▇▇ Associates, L.L.C.
HPBA II - Shasta Associates, L.L.C.
HPBA II - SHP Sacramento Associates, L.L.C.
HPBA II - Vacaville Associates, L.L.C.
Each of the foregoing was a Delaware limited liability company.