CONTRIBUTION AGREEMENT BETWEEN MACQUARIE OFFICE II LLC and MAGUIRE MACQUARIE OFFICE LLC Cerritos Corporate Center I and II, Cerritos California October 26, 2005
Exhibit
10.5
BETWEEN
MACQUARIE
OFFICE II LLC
and
XXXXXXX
MACQUARIE OFFICE LLC
Cerritos
Corporate Center I and II, Cerritos California
October
26, 2005
THIS
CONTRIBUTION AGREEMENT (this “Agreement”)
is
made as of the 26th day of October, 2005, between XXXXXXX
MACQUARIE OFFICE LLC,
a
Delaware limited liability company (referred to herein as “Venture”),
and
MACQUARIE
OFFICE II LLC,
a
Delaware limited liability company (referred to herein as “Contributor”).
Background
Concurrently
with the execution of this Agreement, Xxxxxxx Properties, L.P. (“Xxxxxxx”) and
Contributor have entered into that certain Limited Liability Company Agreement
of Xxxxxxx Macquarie Office LLC (the “Original
LLC Agreement”).
Concurrently
with the closing under this Agreement, Xxxxxxx and Contributor intend to
enter
into an Amendment and Restatement of the Original LLC Agreement (the
“Amended
and Restated LLC Agreement”,
and
together with the Original LLC Agreement, the “LLC
Agreement”).
Under
the
terms of the LLC Agreement, it is contemplated that Contributor shall contribute
to Venture one hundred percent (100%) of the Ownership Interests (defined
below)
in the single purpose limited liability company known as Xxxxxxx/Cerritos
I, LLC
(the “SPE”).
Venture
wishes to accept the contribution of the SPE and the Contributor wishes to
contribute the SPE to Venture, in each case on the terms and conditions set
forth in this Agreement and the LLC Agreement.
In
consideration of the foregoing statements and the mutual agreements herein,
and
for other good and valuable consideration, the receipt of which is hereby
acknowledged, the Contributor agrees to contribute to Venture and Venture
agrees
to accept the contribution of the Ownership Interests, in each case subject
to
the following terms and conditions:
ARTICLE
1: BASIC
TERMS
1.1Contribution.
Subject
to the terms and conditions of this Agreement and the LLC Agreement, (i)
Contributor agrees to contribute, transfer, set over and convey to Venture,
on a
quit claim basis, and Venture agrees to accept from Contributor, the
Ownership
Interests. The “Ownership
Interests”
being
all of the issued and outstanding limited liability company interests in
the SPE
as and only to the extent conveyed to Contributor by Xxxxxxx pursuant to
that
certain Purchase and Sale Agreement of even date herewith (the “PSA”) between
Xxxxxxx and Contributor with respect to the Ownership Interests.
1.2Agreed
Value.
The
total Agreed Value for the SPE shall be $101,000,000.00. The Agreed Value
shall
be allocated to Contributor under the terms of the LLC Agreement as an
“Agreed
Value”
as
that
term is used in the LLC Agreement and shall be considered a “Capital
Contribution”,
as
that term is defined in the LLC Agreement and allocated to the Contributor
as of
the date of Closing.
1.3Remedies.
Contributor’s sole and exclusive remedy in the event Venture (other than as a
result of any action or inaction on the party of Contributor) defaults in
its
obligation to close this transaction, and such default shall not have been
cured
by Venture within ten (10) business days after notice from Contributor, shall
be
to terminate this Agreement. If this transaction fails to close as a result
of
Contributor’s default Venture shall be entitled to enforce specific performance
of Contributor’s
obligation
to close this transaction or to terminate this Agreement. The
foregoing provisions of this Section 1.3 shall not in any way limit the rights
or remedies of any party to the PSA.
1.4Assignment.
Contributor hereby assigns and conveys to Venture and Venture hereby accepts
and
assumes from Contributor all of its rights and obligations (including
prorations) under the PSA.
1.5Termination.
If for
any reason the PSA is terminated or the transaction contemplated thereunder
fails to close, this Agreement shall automatically terminate and be null
and
void and of no further force or effect.
ARTICLE
2: CLOSING
2.1 Closing
and Escrow.
The
consummation of the transaction contemplated herein (“Closing
Date”)
shall
occur immediately after the closing under the PSA at the offices of Skadden,
Arps, Slate, Xxxxxxx and Xxxx, LLP in Los Angeles, CA.
2.2Conditions
to the Parties’ Obligations to Close.
In
addition to all other conditions set forth herein, the obligation of Contributor
to consummate, and the obligation of the Venture to consummate, the transactions
contemplated hereunder shall be
subject
to, conditioned upon, and shall take place concurrently with but immediately
after, the closing contemplated by the PSA.
2.3Contributor’s
Deliveries in Escrow.
At
Closing, and as an additional condition to the obligations of the Venture
hereunder, Contributor shall deliver the following:
(a) Assignment
of Ownership Interests.
An
Assignment of Ownership Interests in the form attached hereto as Exhibit
A
(an
“Assignment”)
executed by Contributor with respect to the SPE, assigning, contributing,
transferring, conveying and delivering, on a quit claim basis, to Venture
the
same title to and ownership of the Ownership Interests in SPE as Contributor
received from Xxxxxxx pursuant to the PSA.
2.4 Venture’s
Deliveries in Escrow.
At
Closing, and as additional conditions to the obligations of Contributor
hereunder, Venture shall deliver the following:
(a) Assignment
of Ownership Interests.
A
counterpart signature page to the Assignment executed by Venture;
and
(b) State
Law Disclosures.
Such
disclosures, tax declarations and reports as are required by applicable state
and local law in connection with the transactions contemplated
hereby.
2.5Closing
Statements.
Contributor and Venture shall execute and deliver at Closing, a closing
statement consistent with this Agreement.
ARTICLE
3: PRORATIONS
AND ADJUSTMENTS
3.1Prorations.
There
shall be no prorations or adjustments in connection with the transactions
contemplated hereby,
it
being understood that Venture shall be responsible for (and shall have the
right
to) all prorations and adjustments for which Contributor would otherwise
be
responsible for (or have the right to) under the PSA.
ARTICLE
4: REPRESENTATIONS
AND WARRANTIES
2
4.1 Contributor’s
Representations and Warranties.
As a
material inducement to Venture to execute this Agreement and consummate this
transaction, Contributor represents and warrants to Venture that:
(i) Contributor
has been duly formed, is validly existing, and is in good standing as a Delaware
limited partnership.
(ii) Contributor
is in good standing and is qualified to do business in each jurisdiction
in
which it is required to be so qualified.
(iii) Contributor
has the full right and authority has obtained any and all authorizations
and
consents required to enter into this Agreement and to consummate or cause
to be
consummated the transactions contemplated hereby.
(iv) This
Agreement has been, and all of the documents to be delivered by Contributor
at
the Closing will be, authorized and properly executed and constitute, or
will
constitute, as appropriate, the valid and binding obligations of Contributor,
enforceable in accordance with their terms.
(v) Contributor
has not encumbered the Ownership Interests, and the Ownership Interests will
be
conveyed by Contributor to Venture at the Closing free and clear of any
encumbrances suffered or created by Contributor.
CONTRIBUTOR
IS CONTRIBUTING THE OWNERSHIP INTERESTS TO VENTURE ON AN “AS IS, WHERE IS AND
WITH ALL FAULTS” BASIS. IT
IS
UNDERSTOOD AND AGREED THAT NEITHER OF CONTRIBUTOR, NOR ANY OF ITS AFFILIATES,
AGENTS, SHAREHOLDERS, MEMBERS, PARTNERS, OFFICERS, PRINCIPALS, EMPLOYEES,
COUNSEL, REPRESENTATIVES OR CONTRACTORS (COLLECTIVELY, THE “CONTRIBUTOR
PARTIES”) HAVE MADE OR ARE NOW MAKING, AND VENTURE HAS NOT RELIED UPON AND WILL
NOT RELY UPON (DIRECTLY OR INDIRECTLY), ANY WARRANTIES, REPRESENTATIONS OR
GUARANTIES OF ANY KIND OR CHARACTER, EXPRESS, IMPLIED OR STATUTORY, ORAL
OR
WRITTEN, PAST, PRESENT OR FUTURE, WITH RESPECT TO THE OWNERSHIP INTERESTS,
INCLUDING, BUT NOT LIMITED TO, WARRANTIES, REPRESENTATIONS OR GUARANTIES
AS TO
(I) MATTERS OF TITLE, (II) ENVIRONMENTAL MATTERS RELATING TO THE REAL
PROPERTY OR ANY PORTION THEREOF OWNED BY THE SPE, (III) GEOLOGICAL
CONDITIONS, INCLUDING, WITHOUT LIMITATION, SUBSIDENCE, SUBSURFACE CONDITIONS,
WATER TABLE, UNDERGROUND WATER RESERVOIRS, LIMITATIONS REGARDING THE WITHDRAWAL
OF WATER AND EARTHQUAKE FAULTS AND THE RESULTING DAMAGE OF PAST AND/OR FUTURE
EARTHQUAKES, (IV) WHETHER, AND TO THE EXTENT TO WHICH, THE REAL PROPERTY OR
ANY PORTION THEREOF IS AFFECTED BY ANY STREAM (SURFACE OR UNDERGROUND), BODY
OF
WATER, FLOOD PRONE AREA, FLOOD PLAIN, FLOODWAY OR SPECIAL FLOOD HAZARD,
(V) DRAINAGE, (VI) SOIL CONDITIONS, INCLUDING THE EXISTENCE OF
INSTABILITY, PAST SOIL REPAIRS, SOIL ADDITIONS OR CONDITIONS OF SOIL FILL,
OR
SUSCEPTIBILITY TO LANDSLIDES, OR THE SUFFICIENCY OF ANY UNDERSHORING,
(VII) ZONING OR OTHER ENTITLEMENTS, OR ANY LAND USE REGULATIONS WHATSOEVER,
TO WHICH THE REAL PROPERTY OR ANY PORTION THEREOF MAY BE SUBJECT,
(VIII) THE AVAILABILITY OF ANY UTILITIES TO THE IMPROVEMENTS OR ANY PORTION
THEREOF INCLUDING, WITHOUT LIMITATION, WATER, SEWAGE, GAS AND ELECTRIC,
(IX) USAGES OF ADJOINING PROPERTY, (X) ACCESS TO THE REAL PROPERTY OR
ANY PORTION THEREOF, (XI) THE VALUE, COMPLIANCE WITH THE PLANS AND
SPECIFICATIONS, SIZE, LOCATION, AGE, USE,
3
DESIGN,
QUALITY, DESCRIPTIONS, SUITABILITY, OPERATION, TITLE TO, OR PHYSICAL OR
FINANCIAL CONDITION OF THE IMPROVEMENTS OR ANY PORTION THEREOF, (XII) ANY
INCOME, EXPENSES, CHARGES, LIENS, ENCUMBRANCES, RIGHTS OR CLAIMS ON OR AFFECTING
OR PERTAINING TO THE REAL PROPERTY OR ANY PART THEREOF, (XIII) THE PRESENCE
OF HAZARDOUS SUBSTANCES IN OR ON, UNDER OR IN THE VICINITY OF THE REAL PROPERTY,
(XIV) THE CONDITION OR USE OF THE IMPROVEMENTS OR COMPLIANCE OF THE
IMPROVEMENTS WITH ANY OR ALL PAST, PRESENT OR FUTURE FEDERAL, STATE OR LOCAL
ORDINANCES, RULES, REGULATIONS OR LAWS, BUILDING, FIRE OR ZONING ORDINANCES,
CODES OR OTHER SIMILAR LAWS, (XV) THE EXISTENCE OR NON-EXISTENCE OF
UNDERGROUND STORAGE TANKS, (XVI) ANY OTHER MATTER AFFECTING THE STABILITY
OR INTEGRITY OF THE IMPROVEMENTS OR REAL PROPERTY, (XVII) THE POTENTIAL FOR
FURTHER DEVELOPMENT OF THE REAL PROPERTY, OR (XVIII) THE MERCHANTABILITY OF
THE REAL PROPERTY OR FITNESS OF THE REAL PROPERTY FOR ANY PARTICULAR
PURPOSE.
In
addition, Venture and anyone claiming by, through or under it hereby waives
its
right to recover from and fully and irrevocably release the Contributor Parties
from any and all liability, claim, demand, loss, expenditure or damage
(collectively, “Losses”)
that
they may now have or hereafter acquire against any of the Contributor Parties
arising from or related to the condition, valuation, salability or utility
of
the improvements or the real property owned by the SPE, or their suitability
for
any purpose whatsoever as of the Closing (including any construction defects,
errors, omissions or other conditions, latent or otherwise, and the presence
in
the soil, air, structures or surface or subsurface waters of materials or
substances that have been or may in the future be determined to be Hazardous
Substances or otherwise toxic, hazardous, undesirable or subject to regulation
and that may need to be specially treated, handled and/or removed from any
of
the real property under current or future federal, state and local laws,
regulations or guidelines). This release includes Losses of which Venture
is
presently unaware or which Venture does not presently suspect to exist which,
if
known to it, would materially affect its release of the Contributor Parties.
In
this connection and to the extent permitted by law, Venture hereby agrees,
represents and warrants that it realizes and acknowledges that factual matters
now unknown to them may have given or may hereafter give rise to Losses which
are presently unknown, unanticipated and unsuspected, and Venture further
agrees, represents and warrants that the waivers and releases herein have
been
negotiated and agreed upon in light of that realization and that each
nevertheless hereby intends to release, discharge and acquit the Contributor
Parties from any such unknown Losses.
ARTICLE
5: MISCELLANEOUS
5.1Parties
Bound.
No
party may assign this Agreement without the prior written consent of the
other,
and any such prohibited assignment shall be void. Subject to the foregoing,
this
Agreement shall be binding upon and inure to the benefit of the respective
legal
representatives, successors, and assigns of the parties.
5.2Headings.
The
article and section headings of this Agreement are for convenience only and
in
no way limit or enlarge the scope or meaning of the language
hereof.
5.3 Expenses.
Except
as otherwise expressly provided herein, each party hereto shall pay its own
expenses incident to this Agreement and the transactions contemplated hereunder,
including all legal and accounting fees and disbursements. The foregoing
shall
not amend or modify any provisions regarding Venture’s payment of costs and
expenses in accordance with the terms of its limited liability company
agreement.
The
parties acknowledge and agree that all transfer tax and other similar taxes
which may be incurred in connection with this transfer are being paid by
Xxxxxxx
Properties, L.P. pursuant to a separate agreement between it and
Contributor.
4
5.4Invalidity
and Waiver.
If any
portion of this Agreement is held invalid or inoperative, then so far as
is
reasonable and possible the remainder of this Agreement shall be deemed valid
and operative, and, to the greatest extent legally possible, effect shall
be
given to the intent manifested by the portion held invalid or inoperative.
The failure by either party to enforce against the other any term or provision
of this Agreement shall not be deemed to be a waiver of such party’s right to
enforce against the other party the same or any other such term or provision
in
the future.
5.5Governing
Law.
This
Agreement shall, in all respects, be governed, construed, applied, and enforced
in accordance with the law of the State of Delaware.
5.6Survival.
The
provisions of this Agreement that provide for performance after the Closing
shall survive the Closing and shall not be deemed to be merged into or (unless
otherwise provided herein or pursuant to a separate instrument) waived by
the
instruments of Closing.
5.7No
Third Party Beneficiary.
This
Agreement is not intended to give or confer any benefits, rights, privileges,
claims, actions, or remedies to any person or entity as a third party
beneficiary, decree, or otherwise.
5.8Entirety
and Amendments.
This
Agreement and the exhibits and schedules hereto and the agreements referenced
herein embody the entire agreement between the parties and supersede all
prior
agreements and understandings relating to the Property. This Agreement may
be
amended or supplemented only by an instrument in writing executed by the
party
against whom enforcement is sought.
5.9Time
of the Essence.
Time is
of the essence in the performance of this Agreement.
5.10Confidentiality.
No
party shall make any public announcement or disclosure of any information
related to this Agreement to outside brokers or third parties, before Closing,
without the specific prior written consent of the other, except for such
disclosures to its lenders, creditors, officers, employees and agents as
may be
necessary to permit it to perform its obligations hereunder and except as
and to
the extent that such party, in its good faith judgment and following
consultation with its counsel, believes that such disclosure is required
to
enable it to comply with obligations under federal or state or Australian
securities laws. Notwithstanding the foregoing, any party to this transaction
(and each employee, agent or representative of the foregoing) may disclose
to
any and all persons, without limitation of any kind, the tax treatment and
tax
structure of the transaction and all materials of any kind (including opinions
or other tax analyses) that are provided to them relating to such tax treatment
and tax structure. The authorization in the preceding sentence is not intended
to permit disclosure of any other information unrelated to the tax treatment
and
tax structure of the transaction including (without limitation) (i) any portion
of the transaction documents or related materials to the extent not related
to
the tax treatment or tax structure of the transaction, (ii) the existence
or
status of any negotiations unrelated to the tax issues, or (iii) any other
term
or detail not relevant to the tax treatment or the tax structure of the
transaction.
5.11Attorneys’
Fees.
If any
party brings an action to enforce its rights under this Agreement, the
prevailing party in the action shall be entitled to recover its costs and
expenses, including, without limitation, reasonable attorneys’ fees, incurred in
connection with such action including any appeal of such action.
5.12Notices.
All
notices required or permitted hereunder shall be in writing and shall be
served
on the parties at the addresses set forth below. Any such notices shall be
either (i) sent by overnight delivery using an internationally recognized
courier, in which case notice shall be deemed
5
delivered
upon receipt, (ii) sent by facsimile or email, in which case notice shall
be deemed delivered upon transmission of such notice if such notice is
transmitted between the hours of 9:00 a.m. and 5:00 p.m. during a business
day of the recipient, otherwise on the next business day of the recipient,
or
(iii) sent by personal delivery, in which case notice shall be deemed
delivered upon receipt. A party’s address may be changed by written notice to
the other party; provided, however, that no notice of a change of address
shall
be effective until actual receipt of such notice. Copies of notices are for
informational purposes only, and a failure to give or receive copies of any
notice shall not be deemed a failure to give notice. The attorney for a party
has the authority to send notices on behalf of such party.
|
If
to Contributor:
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Macquarie
Real Estate, Inc.
|
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Xxx
Xxxxx Xxxxxx Xxxxx, Xxxxx 0
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Xxxxxxx,
Xxxxxxxx 00000
|
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Attention:
Xxxxxxx Xxxxxxxx
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Facsimile:
000-000-0000
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Email:
xxxxxxx.xxxxxxxx@xxxxxxxxx.xxx
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With
a copy to:
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Macquarie
Office Trust
|
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c/o
Macquarie Office Management Limited
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Xxxxx
00, 0 Xxxxxx Xxxxx
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Xxxxxx,
Xxxxxxxxx XXX 0000
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Attention:
Xxxx Xxxxxx-Xxxx
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Facsimile:
011-61-28-232-6510
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Email:
xxxx.xxxxxx-xxxx@xxxxxxxxx.xxx
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and
to:
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Mayer,
Brown, Xxxx & Maw LLP
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00
Xxxxx Xxxxxx Xxxxx
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Xxxxxxx,
Xxxxxxxx 00000
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Attention:
Xxxxxx X. Xxxxxxxx
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Facsimile:
000-000-0000
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Email:
xxxxxxxxx@xxxxxxxxxxxxxx.xxx
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If
to Venture:
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Macquarie
Office Trust
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c/o
Macquarie Office Management Limited
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Xxxxx
00, 0 Xxxxxx Xxxxx
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Xxxxxx,
Xxxxxxxxx XXX 0000
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Attention:
Xxxx Xxxxxx-Xxxx
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Facsimile:011-61-28-232-6510
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Email:
xxxx.xxxxxx-xxxx@xxxxxxxxx.xxx
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with
a copy to:
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Mayer,
Brown, Xxxx & Maw LLP
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00
Xxxxx Xxxxxx Xxxxx
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Xxxxxxx,
Xxxxxxxx 00000
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Attention:
Xxxxxx X. Xxxxxxxx
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Facsimile:
000-000-0000
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Email:
xxxxxxxxx@xxxxxxxxxxxxxx.xxx
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and
to
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Xxxxxxx
Properties, L.P.
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000
Xxxxx Xxxxx Xxxxxx, Xxxxx 000
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Xxx
Xxxxxxx, Xxxxxxxxxx 00000
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Attention:
Xxxxxx Xxxxxxx and Xxxx Lammas
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6
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Facsimile:
000-000-0000 and 000-000
0000
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Email:
Xxx.Xxxxxxx@XxxxxxxXxxxxxxxxx.xxx and
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Xxxx.Xxxxxx@XxxxxxxXxxxxxxxxx.xxx
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with
a copy to:
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Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP
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000
Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
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Xxx
Xxxxxxx, Xxxxxxxxxx 00000
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Attention:
Rand April
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Facsimile:
000-000-0000
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Email:
XXxxxx@Xxxxxxx.xxx
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5.13 Construction
.
The
parties acknowledge that the parties and their counsel have reviewed and revised
this Agreement and that the normal rule of construction to the effect that
any
ambiguities are to be resolved against the drafting party shall not be employed
in the interpretation of this Agreement or any exhibits or amendments
hereto.
5.14 Execution
in Counterparts
.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed to be an original, and all of such counterparts shall constitute one
Agreement. To facilitate execution of this Agreement, the parties may
execute and exchange by telephone facsimile or email counterparts of the
signature pages.
5.15 Further
Assurances
.
In
addition to the acts and deeds recited herein and contemplated to be performed,
executed and/or delivered by either party at Closing, each party agrees to
perform, execute and deliver, on or after the Closing any further actions,
documents, and will obtain such consents, as may be reasonably necessary or
as
may be reasonably requested to fully effectuate the purposes, terms and
conditions of this Agreement or to further perfect the conveyance, transfer
and
assignment of the Ownership Interests to Venture.
5.16 Waiver
of Jury Trial
.
TO THE
EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES HEREBY IRREVOCABLY WAIVE ANY
AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING
TO
THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
[Singature
Page Follows]
7
SIGNATURE
PAGE TO
BY
AND
BETWEEN
XXXXXXX
MACQUARIE OFFICE, LLC
AND
MACQUARIE
OFFICE II LLC
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and
year written below pursuant to proper authority duly granted.
VENTURE:
XXXXXXX
MACQUARIE OFFICE LLC, a Delaware limited liability company
By: Xxxxxxx
MO Manager, LLC,
a
Delaware limited liability company, its manager
By:
Xxxxxxx
Properties, L.P., a Maryland limited
partnership,
its managing member
By:
Xxxxxxx Properties, Inc., its general partner
By:
/s/ Xxxxxx X.
Xxxxx
Name:
Xxxxxx X.
Xxxxx
Title: Executive
Vice Presidnt &
CFO
CONTRIBUTOR:
MACQUARIE
OFFICE II LLC, a Delaware limited liability company
By:
Macquarie
Office (US) Corporation, its managing member
By:
/s/ Xxxx X. Xxxxxx
Name: Xxxx X.
Xxxxxx
Title: Vice
President
