EXHIBIT 10RR
Letter Agreement dated as of January 1, 1996 between the Registrant
and Hewson Properties, Inc.
EXHIBIT 10RR
January 1, 1996
Hewson Properties, Inc.
4636 E. University
Suite 200
Phoenix, Arizona 85034
Re: Hewson/Copley Northwest Associates
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Ladies and Gentlemen:
Hewson Properties, Inc., a California corporation ("Developer"), and New
England Life Pension Properties IV; a Real Estate Limited Partnership, a
Massachusetts limited partnership ("NELP IV"), constitute all of the partners in
Hewson/Copley Northwest Associates (the "Partnership"), a California general
partnership which was formed pursuant to that certain Joint Venture Agreement
dated as of September 15, 1986, which agreement was amended and restated in its
entirety on September 15, 1986 (as so amended and restated, and thereafter
amended through the date hereof, the "Partnership Agreement").
Pursuant to our discussions, Developer and NELP IV desire to modify certain
terms of the Partnership Agreement. This letter is intended to reflect the
agreement of NELP IV and Developer with respect to such modifications, and other
matters relating to the business and affairs of the Partnership. This letter
shall constitute an amendment to the Partnership Agreement. Capitalized terms
used herein, and not otherwise defined herein, shall have the respective
meanings ascribed to them in the Partnership Agreement.
Therefore, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Developer and NELP IV hereby agree
as follows:
(a) From and after the date of this letter, NELP IV shall have full
and complete control of the management and any and all other decisions
associated with the business, operations and affairs of the Partnership,
provided, that, NELP IV shall not have authority to cause the Partnership (x) to
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offer for sale the real property owned by the Partnership, or (y) to consummate
a sale or other voluntary disposition of all or any portion of the real property
owned by the Partnership, in either case prior to July 1, 1996, unless Developer
has approved the terms of any such offer or
Hewson Properties, Inc.
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such sale or voluntary disposition. From and after July 1, 1996, Developer shall
have no right to approve or disapprove any such sale or disposition, including
without limitation but subject to paragraph (g) below, any sale or disposition
of Partnership assets to an affiliate of NELP IV, and NELP IV, acting alone,
shall have the authority to cause the Partnership to sell or otherwise dispose
of such assets on terms determined in the sole and absolute discretion of NELP
IV.
(b) Without limiting the generality of paragraph (a), NELP IV shall
be entitled to make all decisions respecting the conduct of the Partnership and
its business, without the consent or approval of Developer, including without
limitation, the following:
1. Consummating leases in the Project or any portion thereof, on such terms as
NELP IV may approve;
2. Consenting to any rezoning or subdivision of the Land or any other material
change in the legal status thereof;
3. Initiating, defending, adjusting, settling or compromising any claim,
action, suit or judgement by or against the Partnership;
4. Releasing, compromising, assigning or transferring any claims, rights or
benefits of the Partnership;
5. Confessing a judgement against the Partnership or submitting a Partnership
claim to arbitration;
6. Distributing any cash of the Partnership, or establishing any reserve;
7. Filing on behalf of the Partnership any Federal or state income tax or
information returns;
8. Spending money or entering into any contract or agreement (or series
thereof) of any nature whatsoever with respect to the Partnership or the
Project (or any portion thereof), with any party, including without
limitation, with an Affiliate of NELP IV;
9. Subject to the restrictions contained in Section (a) above, assigning the
rights of the Partnership in any of its property;
Hewson Properties, Inc.
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10. Selecting attorneys or Accountants, or property managers, for the
Partnership and/or the project;
11. Advertising or marketing the Project;
12. Granting easements or other property rights by documents that are
frequently recorded;
13. Giving any approval or exercising any right (including rights to terminate
or amend) under any management, construction or other contract to which the
Partnership or the Project is a party;
14. Entering into any amendment, modification, revision, supplement or
rescission with respect to any of the foregoing.
NELP IV shall be the tax matters partner of the Partnership.
(c) NELP IV shall devote itself to the business of the Partnership to
the extent it, in its sole discretion, reasonably determines necessary for the
efficient carrying on thereof, without compensation therefor except as
specifically provided in the Partnership Agreement; provided, however, that
Developer agrees and acknowledges that (i) NELP IV shall not be required, nor is
it expected, to devote itself to the business of the Partnership on a full-time
basis, (ii) the Project shall be managed and maintained by a property manager
pursuant to a property management agreement, and NELP IV may rely on such
property manager to manage and maintain the Project in a prudent and reasonable
manner and shall have no liability to the Partnership or the Partners with
respect to any matter delegated to the property manager and (iii) NELP IV shall
be permitted to delegate to a third party such other of its duties and
obligations under the Partnership Agreement as it may determine in its sole
discretion.
(d) Subject to the restrictions contained in paragraph (a), with
respect to all of its obligations, powers, and responsibilities under the
Partnership Agreement, NELP IV is authorized, in the name and on behalf of the
Partnership, to execute, deliver, and perform the terms, covenants and
obligations of, such notes and other evidences of indebtedness, contracts,
agreements, assignments, deeds, leases, loan agreements, mortgages, and other
security instruments and agreements as it deems proper, all on such terms and
conditions as it deems proper.
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(e) Without limiting the foregoing, Developer (in its capacity as a
Partner in the Partnership) hereby waives, to the fullest extent permitted by
law, any and all rights it may have at law or in equity to vote on, approve or
consent to any matter or to participate in the management, business or
operations of the Partnership, except to the extent specifically provided
herein.
(f) NELP IV shall use reasonable efforts to perform its duties under
the Partnership Agreement, including, without limitation employing necessary
personnel, on and off-site, in connection with the business of the Partnership.
(g) Without limiting the other provisions of this letter, NELP IV
shall have the right from and after the date of this letter (but subject to the
provisions of paragraph (a) above in respect of sales prior to July 1, 1996) to
sell any of the assets of the Partnership for their fair market value to any
affiliate of NELP IV and/or to any entity managed or advised by Copley Real
Estate Advisors, Inc. (or any affiliate thereof). For purposes of any such sale,
the fair market value of any such assets shall be determined by NELP IV in its
reasonable discretion. Developer agrees that if there is any dispute or
disagreement regarding any sale pursuant to this paragraph (g), including,
without limitation, the determination of the fair market value of the assets
sold, then Developer's sole and exclusive remedy at law and/or in equity shall
be to bring a cause of action seeking as its sole remedy to recover the
difference between (i) the amount Developer received as a result of the sale of
such assets as contemplated by this paragraph (g) and (ii) the amount the
Developer would have received if such assets had been sold for their fair market
value at the time of the sale (as determined by the court in such cause of
action). Without limiting the generality of the foregoing, Developer expressly
waives any other rights and/or remedies it may have at law and/or at equity with
respect to the transfer of any assets under this paragraph (g) including,
without limitation, any right or remedy (x) to recover any fees or compensation
that Developer (or its Affiliates) would have received if the assets had not
been sold, (y) to enjoin or stay the consummation of such sale or (z) to bring
an action for punitive, consequential or any other damages.
(h) NELP IV and Developer agree that third parties may rely on this
letter as an amendment to the Partnership Agreement. In addition, third parties
shall not be required to determine the authority of NELP IV or Developer to
execute this letter or upon
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the authority of any person signing this letter on behalf of the Developer or
NELP IV.
(i) Developer agrees to perform any further acts, and to execute and
deliver any further documents and instruments, as may be necessary to implement
the provisions of this letter and the transactions contemplated herein. Should
any litigation or arbitration proceeding be commenced between the parties
concerning any provision of this letter, the prevailing party in such litigation
or arbitration shall be entitled to reasonable attorneys fees and costs.
If this letter correctly sets forth the terms of our agreement, please so
indicate by signing this letter in the space provided below.
NEW ENGLAND LIFE PENSION PROPERTIES IV; A REAL
ESTATE LIMITED PARTNERSHIP
By: FOURTH COPLEY CORP., a Massachusetts
corporation, its Managing General Partner
By: /s/ Sandra H. O'Connor
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Authorized Officer
Agreed to and Accepted
as of the date set forth
above:
HEWSON PROPERTIES, INC.,
a California corporation
By /s/ Ernest F. Modzelewski
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Authorized Officer