CONTRIBUTION AGREEMENT
This Contribution Agreement, dated as of November 1, 1996, is by and
between NATIONSBANK, N.A., a national banking association ("NationsBank, N.A."),
and MAIN PLACE HOLDINGS CORPORATION, a Delaware corporation ("Main Place
Holdings").
RECITALS
NationsBank, N.A. owns all of the issued and outstanding Class A Shares
of Beneficial Interest of Main Place Real Estate Investment Trust (the "Class A
Shares"), a Maryland business trust (the "Trust"), and Main Place Holdings.
NationsBank, N.A. desires to contribute, and Main Place Holdings
desires to accept from NationsBank, N.A. all of the issued and outstanding Class
A Shares of the Trust in consideration for the issuance by Main Place Holdings
to NationsBank, N.A. of twenty-five (25) shares of common stock, no par value
per share (the "Shares"), of Main Place Holdings, subject to the terms and
conditions of this Agreement.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants and promises
contained herein and for other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as follows:
CONTRIBUTION OF SECURITIES
1.1 Contribution of the Trust Shares. NationsBank, N.A. hereby
agrees to transfer, assign, convey and deliver to Main Place Holdings, and Main
Place Holdings hereby agrees to accept from NationsBank, N.A., on the date
hereof, all right, title and interest of NationsBank, N.A., legal or equitable,
in and to all of the issued and outstanding Class A Shares of the Trust (the
"Trust Shares") owned by NationsBank, N.A.
1.2 Consideration to NationsBank, N.A.. On the date hereof,
Main Place Holdings shall deliver the Shares to NationsBank, N.A., in
consideration of the contribution, transfer, assignment, conveyance and delivery
of the Trust Shares.
CLOSING
2.1 Closing. The closing of the transactions contemplated
herein (the "Closing") shall be held at 10:00 a.m. on November 1, 1996, unless
otherwise agreed by the parties hereto, at the offices of Stroock & Stroock &
Xxxxx, Seven Hanover Square, New York, New York.
2.2 Deliveries at the Closing. At the Closing:
(a) NationsBank, N.A. shall deliver to Main Place
Holdings the Trust Shares, together with stock powers or other appropriate
powers or evidence of transfer in favor of Main Place Holdings or in blank.
(b) Main Place Holdings shall deliver to NationsBank,
N.A. the Shares as provided for in Section 1.2.
(c) Main Place Holdings and NationsBank, N.A. shall
deliver the certificates and other matters described in Articles VI and VII
herein.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF NATIONSBANK, N.A.
NationsBank, N.A. hereby represents and warrants to
Main Place Holdings as follows:
3.1 Organization. The Trust is duly organized, validly existing and
in good standing under the laws of its state of organization, has full power and
authority to conduct its business as it is presently being conducted and to own,
lease and operate its properties and assets.
3.2 Subsidiaries. The Trust has no subsidiaries.
3.3 Organizational Documents, Etc. True, complete and accurate copies
of the declaration of trust and bylaws, each of the foregoing as amended to the
date hereof, and the minute books and all stock books and stock transfer records
of the Trust, each current to the date hereof, have been furnished to Main Place
Holdings, and there will be no amendments or changes to such declaration of
trust or bylaws prior to the Closing.
3.4 Capital Stock, Etc. All of the issued and outstanding Class A
Shares of the Trust, which constitute all of the issued and outstanding capital
stock of the Trust, is held by NationsBank, N.A. All the shares of Trust's
capital stock are, and from the date hereof through the Closing, will be,
validly issued and outstanding, fully paid and non-assessable. There are no
outstanding options, warrants, rights (including preemptive rights),
subscriptions, calls, commitments, conversion rights, rights of exchange, plans
or other agreements of any character providing for the purchase, issuance or
sale of any Class A Shares of the capital stock of the Trust; however, as
disclosed to Main Place Holdings, the Trust will issue a series of non-voting
Class B Shares of Beneficial Interest (the "Class B Shares").
3.5 No Conflict or Violation. Neither the execution and delivery of
this Agreement nor the consummation of the transactions contemplated hereby will
result in (i) a violation or breach of, conflict with or default under any term
or provision of any contract, agreement, indebtedness, lease, encumbrance,
commitment, license, franchise, permit, authorization or concession to which
either of the Trust or NationsBank, N.A. is a party or by which either of the
Trust or NationsBank, N.A. is bound or affected or (ii) a violation by the Trust
or by NationsBank, N.A. of any statute, rule, regulation, ordinance, code,
action or award applicable to the Trust or to NationsBank, N.A., as the case may
be.
3.6 Restrictive Documents. Neither NationsBank, N.A. or the Trust is
subject to, or a party to, any mortgage, lien, lease, license, permit,
agreement, contract or instrument, or to any law, rule, ordinance, regulation,
action or any other restriction of any kind or character, which would have a
material adverse effect on the execution, delivery and performance of this
Agreement by the Trust or NationsBank, N.A. and consummation by the Trust of the
transactions contemplated hereby.
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3.7 Consents and Approvals; Licenses. No consent, approval,
authorization, license, order or permit of, or declaration, filing or
registration with, any governmental entity, or any other person or entity, is
required to be made or obtained by the Trust or by NationsBank, N.A. in
connection with the execution, delivery and performance by the Trust and by
NationsBank, N.A., as the case may be, of this Agreement and the consummation by
the Trust and by NationsBank, N.A., as the case may be, of the transactions
contemplated hereby.
3.8 Compliance with Law. The Trust has complied with, and has not
violated, any judgments, rulings, orders, writs, injunctions, awards, decrees,
statutes, laws, ordinances, codes, rules or regulations of any governmental
entity applicable to it or to its assets, properties, business or operations. No
consent, approval, authorization, license, order or permit of, or declaration,
filing or registration with, any governmental entity which has not been obtained
is material to or necessary for the conduct of the business of the Trust. No
violations are or have been recorded in respect of any consent, approval,
authorization, license, order or permit of, or declaration, filing or
registration with, any governmental entity, and no proceeding is pending, or to
the knowledge of the Trust threatened, to revoke or limit any consent, approval,
authorization, license, order or permit of, or declaration, filing or
registration with, any governmental entity.
3.9 Litigation. There is no litigation, arbitration, claim,
governmental or other proceeding or investigation (domestic or foreign, formal
or informal) pending or, to the knowledge of NationsBank, N.A. threatened or in
prospect (or any basis therefor known to NationsBank, N.A.), with respect to the
Trust or any of its operations, business, properties or assets except as,
individually or in the aggregate, do not now have and are not reasonably
expected in the future to have a material adverse effect upon the financial
condition, results of operations, business, prospects, properties or assets of
the Trust.
3.10 Authorization. NationsBank, N.A. has the legal right, power and
authority to execute, deliver and perform its obligations under this Agreement
and each other agreement, document or instrument contemplated hereby to which it
is a party. This Agreement has been duly executed and delivered by NationsBank,
N.A. and is a legal, valid and binding obligation of NationsBank, N.A.,
enforceable against NationsBank, N.A. in accordance with its terms, except as
limited by the effect of bankruptcy, insolvency, moratorium, fraudulent
conveyance and similar laws relating to or affecting creditors' rights generally
and court decisions with respect thereto.
3.11 No Other Agreements to Sell Securities. NationsBank, N.A. has no
legal obligation, absolute or contingent, to any person or entity other than
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Xxxx Xxxxx Holdings to transfer, assign, convey and deliver the Trust Shares.
3.12 Investment Representations. NationsBank, N.A. is acquiring the
Shares for its own account, for investment and not with a view to the sale or
distribution thereof or with any present intention of selling or distributing
any thereof, except in conformity with the Securities Act of 1933, as amended
(the "Securities Act"). NationsBank, N.A. understands and acknowledges that the
Shares are not registered under the Securities Act and will not be transferable
except (i) pursuant to an effective registration statement under the Securities
Act, (ii) pursuant to Rule 144 or any successor rule under the Securities Act,
(iii) pursuant to a no-action letter issued by the Securities and Exchange
Commission to the effect that a proposed transfer of the Shares may be made
without registration under the Securities Act or (iv) pursuant to an opinion of
counsel for or reasonably acceptable to Main Place Holdings to the effect that
the proposed transfer is exempt from registration or qualification under the
Securities Act and relevant state securities laws.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF MAIN PLACE HOLDINGS
Main Place Holdings hereby represents and warrants to NationsBank,
N.A. as follows:
4.1 Organization of Main Place Holdings. Main Place Holdings is duly
organized, validly existing and in good standing under the laws of the State of
Delaware, has full corporate power and authority to conduct its business as it
is presently being conducted and to own, lease and operate its properties and
assets. Main Place Holdings is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction where the ownership of
property or nature of its business requires such qualification and where failure
to be so qualified would have a material adverse effect on Main Place. Main
Place Holdings was incorporated on September 23, 1996 and has done no business
and incurred no obligations except with respect to the transactions contemplated
hereby.
4.2 Authorization. Main Place Holdings has all necessary corporate
power and authority and has taken all corporate action necessary to enter into
this Agreement to consummate the transactions contemplated hereby and to perform
its obligations hereunder. This Agreement has been duly executed and delivered
by Main Place Holdings and is a legal, valid and binding obligation of Main
Place Holdings enforceable against Main Place Holdings in accordance with its
terms, except as limited by the effect of bankruptcy, insolvency, moratorium,
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fraudulent conveyance and similar laws relating to or affecting creditors rights
generally and court decisions with respect thereto.
4.3 No Conflict or Violation. Neither the execution and delivery of
this Agreement nor the consummation of the transactions contemplated hereby will
result in (i) a violation of or a conflict with any provision of the certificate
of incorporation or bylaws of Main Place Holdings, (ii) a breach of, or a
default under, any term or provision of any contract, agreement, indebtedness,
lease, encumbrance, commitment, license, franchise, permit, authorization or
concession to which Main Place Holdings is a party or by which Main Place
Holdings is bound or affected which breach or default would have a material
adverse effect on the business or financial condition of Main Place Holdings or
its ability to consummate the transactions contemplated hereby or (iii) a
violation by Main Place Holdings of any statute, rule, regulation, ordinance,
code, order, judgment, writ, injunction, decree, action or award applicable to
Main Place Holdings, which violation would have a material adverse effect on the
business or financial condition of Main Place Holdings or its ability to
consummate the transactions contemplated hereby.
4.4 Consents and Approvals. No consent, approval or authorization of,
or declaration, filing or registration with, any governmental entity, or any
other person or entity is required to be made or obtained by Main Place Holdings
in connection with the execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby.
4.5 Issuance of Main Place Holdings Common Stock. The authorized
capital stock of Main Place Holdings consists of 200 shares of common stock, no
par value per share. As of the date hereof, 50 shares of Main Place Holdings
Common Stock are outstanding. Upon the issuance of the Shares as provided
herein, the Main Place Holdings Common Stock will be duly and validly issued,
fully paid and non-assessable. There are no outstanding options, warrants,
rights, calls, commitments, conversion rights, rights of exchange, plans or
other agreements of any character providing for the purchase, issuance or sale
of any shares of the capital stock of Main Place Holdings.
4.6 Investment Representations. Main Place Holdings is acquiring
the Trust Shares for its own account for investment and not with a view to the
sale or distribution thereof or with any present intention of selling or
distributing any thereof. Main Place Holdings understands and acknowledges that
the Trust Shares are not registered under the Securities Act and will not be
transferable except (i) pursuant to an effective registration statement under
the Securities Act, (ii) pursuant to Rule 144 or any successor rule under the
Securities Act, (iii) pursuant to a no-action letter issued by the Securities
and Exchange Commission to the effect that a proposed transfer of the Trust
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Shares may be made without registration under the Securities Act or (iv)
pursuant to an opinion of counsel for the Trust to the effect that the proposed
transfer is exempt from registration or qualification under the Securities Act
and relevant state securities laws.
ARTICLE V
COVENANTS OF NATIONSBANK, N.A. AND MAIN PLACE HOLDINGS
NationsBank, N.A., on the one hand, and Main Place Holdings, on the
other hand, covenant with each other as follows:
5.1 Maintenance of Business Prior to Closing. During the period from
the date hereof through the Closing Date, NationsBank, N.A. shall cause the
Trust to continue to carry on its business in the ordinary course and in
accordance with past practice and not to take any action inconsistent therewith
or with the consummation of the Closing.
5.2 Share Legend. The certificates representing the Shares shall bear
the following legend:
"The Shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"), and are "restricted securities" as that term is
defined in Rule 144A under the Act. The Shares may not be
offered for sale, sold or otherwise transferred except
pursuant to an effective registration statement under the
Securities Act or pursuant to an exemption from registration
under the Act, the availability of which is to be established
to the satisfaction of the Trust.
ARTICLE VI
CONDITIONS TO NATIONSBANK N.A.'S OBLIGATIONS
The obligations of NationsBank, N.A. to consummate the transactions
provided for hereby are subject to the satisfaction, on or prior to the Closing
Date, of each of the following conditions:
6.1 Representations, Warranties and Covenants. All representations
and warranties of Main Place Holdings contained in or made pursuant to this
Agreement shall be true and correct in all material respects at and as of the
Closing Date (and such representations and warranties shall be deemed to be
repeated by Main Place Holdings at and as of the Closing Date), except as and to
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the extent that the facts and conditions upon which such representations and
warranties are based are expressly required or permitted to be changed by the
terms hereof, and Main Place Holdings shall have performed in all material
respects all agreements and covenants required hereby to be performed by it
prior to or on the Closing Date.
6.2 Consents. All consents, approvals and waivers from third parties,
governmental entities and other parties necessary to permit Main Place Holdings
to transfer the Trust Shares to NationsBank, N.A. as contemplated hereby shall
have been obtained.
6.3 No Governmental Proceedings or Litigation. No action by any
governmental entity shall have been instituted or threatened which questions the
validity or legality of the transactions contemplated hereby and which could
reasonably be expected materially to damage NationsBank, N.A. if the
transactions contemplated hereunder are consummated.
6.4 Corporate Documents. NationsBank, N.A. shall have received from
Main Place Holdings resolutions adopted by the board of directors of Main Place
Holdings approving this Agreement and the transactions contemplated hereby
certified by Main Place Holdings' corporate secretary or assistant secretary.
6.5 Certificates. Main Place Holdings shall have furnished
NationsBank, N.A. with such certificates of Main Place Holdings officers and
others to evidence compliance with the conditions set forth in this Article VI
as may be reasonably requested by NationsBank, N.A.
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ARTICLE VII
CONDITIONS TO MAIN PLACE HOLDINGS' OBLIGATIONS
The obligations of Main Place Holdings to consummate the transactions
provided for hereby are subject, in the discretion of Main Place Holdings, to
the satisfaction, on or prior to the Closing Date, of each of the following
conditions:
7.1 Representations, Warranties and Covenants. All representations
and warranties of NationsBank, N.A. contained in or made pursuant to this
Agreement shall be true and correct in all material respects at and as of the
Closing Date (and such representations and warranties shall be deemed to be
repeated by NationsBank, N.A. at and as of the Closing Date), except as and to
the extent that the facts and conditions upon which such representations and
warranties are based are expressly required or permitted to be changed by the
terms hereof, and NationsBank, N.A. shall have performed in all material
respects all agreements and covenants required hereby to be performed by them
prior to or on the date of the Closing.
7.2 Consents. All consents, approvals and waivers from third parties,
governmental entities and other parties necessary to permit NationsBank, N.A. to
transfer, and Main Place Holdings to accept the Trust Shares as contemplated
hereby shall have been obtained.
7.3 No Governmental Proceedings or Litigation. No action by any
governmental entity shall have been instituted or threatened which questions the
validity or legality of the transactions contemplated hereby and which could
reasonably be expected to affect materially the right or ability of Main Place
Holdings to own the Trust Shares after the Closing or materially to damage Main
Place Holdings or the Trust if the transactions contemplated hereunder are
consummated.
7.4 Certificates. NationsBank, N.A. shall have furnished Main Place
Holdings with such certificates to evidence compliance with the conditions set
forth in this Article VII as may be reasonably requested by Main Place Holdings.
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MISCELLANEOUS
8.1 Termination. If any condition precedent to NationsBank, N.A.'s
obligations hereunder is not satisfied and such condition is not waived by
NationsBank, N.A. on or prior to the date of the Closing, or if any condition
precedent to Main Place Holdings' obligations hereunder is not satisfied and
such condition is not waived by Main Place Holdings on or prior to the date of
the Closing, NationsBank, N.A. or Main Place Holdings, as the case may be, may
terminate this Agreement at their or its option by notice to the other party.
This Agreement may be terminated by the mutual agreement of the parties hereto.
8.2 Assignment. Neither this Agreement nor any of the rights or
obligations hereunder may be assigned by any party; except that Main Place
Holdings may assign all its rights and obligations hereunder to a subsidiary or
subsidiaries of Main Place Holdings or to a successor to the business of Main
Place Holdings; provided, however, that such assignment shall not release Main
Place Holdings with respect to any such obligations or liabilities. Subject to
the foregoing, this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns. No other person
shall have any right, benefit or obligation hereunder.
8.3 Notices. Unless otherwise provided herein, any notice, request,
instruction or other document to be given hereunder by any party to any other
party shall be in writing and shall be deemed to have been given (a) if mailed,
at the time when mailed in any general or branch office of the United States
Postal Service, enclosed in a registered or certified postage-paid envelope, (b)
if sent by facsimile transmission, when so sent and receipt acknowledged by an
appropriate telephone or facsimile receipt or (c) if sent by other means, when
actually received by the party to which such notice has been directed, in each
case at the respective addresses or numbers set forth below or such other
address or number as such party may have fixed by notice:
If to NationsBank, N.A. addressed to:
NationsBank, N.A.
c/o NationsBank Corporation, Legal Department
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxx Xxxxx, Esq.
Fax: (000) 000-0000
If to Main Place Holdings addressed to:
Main Place Holdings Corporation
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx X. Xxxx
Fax: (000) 000-0000
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8.4 Governing Law. This Agreement shall be construed, interpreted and
the rights of the parties determined in accordance with the laws of the State of
New York (without reference to the choice of law provisions of New York law)
except with respect to matters of law concerning the internal corporate affairs
of Main Place Holdings, and as to those matters the law of the State of Delaware
shall govern.
8.5 Entire Agreement; Modifications and Waivers. This Agreement,
together with all exhibits and schedules hereto, constitutes the entire
agreement among the parties pertaining to the subject matter hereof and
supersedes all prior agreements, understandings, negotiations and discussions,
whether oral or written, of the parties. No supplement, modification or waiver
of this Agreement shall be binding unless executed in writing by the party or
parties to be bound thereby. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other provision
hereof (whether or not similar), nor shall such waiver constitute a continuing
waiver unless otherwise expressly provided. No delay on the part of any party in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any waiver on the part of any party of any right, power or
privilege hereunder, nor any single or partial exercise of any right, power or
privilege hereunder, preclude any other or further exercise thereof or the
exercise of any other rights, power or privilege hereunder. The rights and
remedies herein provided are cumulative and are not exclusive of any rights or
remedies which any party may otherwise have at law or in equity.
8.6 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.7 Invalidity. In the event that any one or more of the provisions
contained in this Agreement or in any other instrument referred to herein,
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, then to the maximum extent permitted by law such invalidity, illegality
or unenforceability shall not affect any other provision of this Agreement or
any other such instrument and, to the extent enforceable, such provisions shall
be replaced by substitute provisions similar thereto, or other provisions, so as
to provide to the Existing Stockholders and Main Place Holdings, to the fullest
extent permitted by applicable law, the benefits intended by such provisions.
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8.8 Titles. The titles, captions or headings of the Articles and
Sections herein are for convenience of reference only and are not intended to be
a part of or to affect the meaning or interpretation of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
MAIN PLACE HOLDINGS CORPORATION
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President
NATIONSBANK, N.A.
By: /s/ Xxxx X. Xxxxxxxx.
----------------------------
Name: Xxxx X Xxxxxxxx
Title: Senior Vice President
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