Exhibit 10.2
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT (the "Agreement") is entered into as of November 30,
1999 by and between the STATE OF CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT SYSTEM,
a unit of the State and Consumer Services Agency of the State of California
("CalPERS"), with offices at 000 X Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxx 00000, and
XXXXXXX PACIFIC EMPLOYEES LLC, a Delaware limited liability company (either
"BPE" or the "Manager"), with offices at 000 Xxxx X Xxxxxx, Xxxxx 000, Xxx
Xxxxx, Xxxxxxxxxx 00000.
RECITALS
A. BPP Retail, LLC, a Delaware limited liability company (the
"Company") was formed by the filing of a Certificate of Formation with the
Secretary of State of the State of Delaware on September 15, 1998. The
management and operation of the Company is governed by the terms of that certain
Operating Agreement dated August 31, 1998, as amended by that certain First
Amendment to Operating Agreement dated June 1, 1999 (as amended, the
"Agreement").
B. CalPERS and BPE, as the current members of the Company, now wish
to provide for the contribution of certain real property to the Company by BPE.
AGREEMENT
NOW THEREFORE, for good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, and the mutual covenants herein contained, the
parties hereto agree as follows:
1. DEFINED TERMS. Capitalized terms used herein and not defined shall
have the same meaning as ascribed thereto in the Agreement.
2. CONTRIBUTION OF CERTAIN PROJECTS BY BPE. Section 3.2(a) of the
Agreement permits BPE to make Additional Capital Contributions in the form of
contributions of property. On December 1, 1999 (the "Effective Date"), BPE shall
cause to be contributed by grant deed to the Company (i) certain property in Los
Altos, California commonly known as Foothill Plaza and legally described on
Exhibit A annexed hereto ("Foothill Plaza") and (ii) certain property in
Rocklin, California commonly known as Stanford Ranch and legally described on
Exhibit B annexed hereto ("Stanford Ranch"). The parties have agreed that the
Net Asset Value of Foothill Plaza is Six Million Nine Hundred Thousand Dollars
($6,900,000) and the Net Asset Value of Stanford Ranch is Five Million Nine
Hundred Ten Thousand Dollars ($5,910,000), reflecting a fair market value of
Twelve Million Dollars ($12,000,000) less the amount of secured debt currently
encumbering the property. The contributions shall be made in accordance with the
terms and conditions of the Agreement, including without limitation the
representations and warranties contained in Exhibit F thereto.
3. TITLE TO STANFORD RANCH. Stanford Ranch is currently encumbered by
a deed of trust in favor of Massachusetts Mutual Life Insurance Company (the
"Lender"), and the Company will assume all obligations contained in such deed of
trust and the related promissory note and other loan documents from and after
the Effective Date in connection with its contribution. Lender has consented to
such assumption, subject to the satisfaction of certain customary conditions
precedent (the "Conditions"), such as receipt of an appropriate endorsement to
its title policy. In the event that all Conditions are not satisfied as of the
Effective Date, then notwithstanding anything contained herein to the contrary,
BPE may continue to hold title to Stanford Ranch as nominee on behalf of the
Company until such time as all of the Conditions are satisfied; provided,
however, that if all of the Conditions are not satisfied on or before December
15, 1999, then CalPERS shall be entitled to rescind the contribution of Stanford
Ranch to the Company, in which case this Agreement shall be a nullity as to
Stanford Ranch, BPE shall promptly refund to the Company any distributions it
received from the Company in connection with its attempted contribution of
Stanford Ranch, and the Company shall promptly return such refunded
distributions to CalPERS.
4. CAPITAL CONTRIBUTION BY CALPERS. On the Effective Date, CalPERS
shall make an Additional Capital Contribution to the Company equal to the
combined Net Asset Value of Foothill Plaza and Stanford Ranch, which amount
shall in turn be distributed to BPE by the Company.
5. MISCELLANEOUS. This Agreement may be executed in counterparts, all
of which shall constitute one instrument. This Agreement shall be governed by
the laws of California.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
XXXXXXX PACIFIC EMPLOYEES LLC,
a Delaware limited liability company
By: XXXXXXX PACIFIC OPERATING PARTNERSHIP, L.P.
a Delaware limited partnership, its manager
By: XXXXXXX PACIFIC PROPERTIES, INC.,
a Maryland corporation, its general partner
By: /s/ Xxxxxx Xxxxx
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Its: Executive Vice President
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STATE OF CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT SYSTEM,
an agency of the State of California
By: /s/ Xxx Xxxxxxxx
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Its: Senior Investment Officer
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