EXHIBIT 10.15
IRREVOCABLE CONTRIBUTION AGREEMENT
This IRREVOCABLE CONTRIBUTION AGREEMENT made as of February 18, 2005 (this
"Agreement"), by and among:
(a) XXXXXXX X. SHELL, an individual ("Contributing Member");
(b) CIATTI SHELL LLC, a Delaware limited liability company (the
"Company");
(c) VINTAGE WINE TRUST, LP, a Delaware limited partnership (the "Operating
Partnership"); and
(d) VINTAGE WINE TRUST, INC., a Maryland corporation (the "REIT").
RECITALS:
A. Contributing Member is the owner and holder of membership interests in the
Company (all of such membership interests, the "Membership Interest").
B. The Company is the owner and holder of all of the Class A Membership
Interest in VWP, LLC, a Delaware limited liability company ("VWP").
C. Contributing Member desires to contribute the Membership Interest to the
Operating Partnership and the Operating Partnership desires to accept such
contribution, in each case, in exchange for the Contribution Consideration
(as herein defined) as more specifically set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Contribution and Contribution Consideration.
1.1 Contribution by Contributing Member. On the terms hereof and subject to the
conditions contained herein, Contributing Member hereby agrees to
contribute the Membership Interest to the Operating Partnership and the
Operating Partnership desires to accept the contribution of the Membership
Interest, in exchange for the Contribution Consideration (the
"Contribution").
1.2 Closing Date. The Contribution shall take place contemporaneously with the
Rule 144A Offering (as herein defined) (the "Closing Date").
1.3 Assumption of LP Agreement. Effective as of the Closing Date, Contributing
Member accepts the issuance of the Contribution OP Units from the Operating
Partnership and accepts and adopts the provisions of the LP Agreement and
assumes all of the duties and obligations of a Limited Partner (as defined
in the LP Agreement) relating to the Contribution OP Units, as of the
Closing Date.
1.4 Certain Definitions. As used herein:
(a) "Contribution Consideration" means the Contribution OP Units;
(b) "Contribution OP Units" means an amount equal to Twenty-Five Thousand
(25,000) OP Units;
(c) "FBR" means Friedman, Billings, Xxxxxx & Co., Inc., a Delaware
corporation;
(d) "LP Agreement" means that certain First Amended and Restated Agreement
of Limited Partnership of Vintage Wine Trust, LP to be dated as of the
Closing Date; and
(e) "Rule 144A Offering" means the offering and sale of shares of the
Common Shares of the REIT to FBR and the subsequent offering and sale
of such shares by FBR in reliance upon Rule 144A and/or Regulation S,
in each case as promulgated under the Securities Act of 1933, as
amended (the "Securities Act"); and
(f) "OP Units" means common units of limited partner interest in the
Operating Partnership.
1.5 Additional Documents.
(a) On the date hereof, Contributing Member shall deliver to the Operating
Partnership and the REIT a duly completed and executed Form W-9,
FIRPTA Affidavit and Accredited Investor Questionnaire, each in the
form attached as Exhibit A to this Agreement (this Agreement, the
Accredited Investor Questionnaire, Form W-9 and FIRPTA Affidavit
collectively referred to as, the "Subscription Documents").
(b) On the Closing Date, the REIT and Contributing Member shall execute a
Registration Rights Agreement substantially in the form of the draft
dated the date hereof, with such modifications as the REIT and/or the
Operating Partnership deem necessary in their respective sole
discretion.
2. Representations, Warranties and Covenants of Contributing Member.
Contributing Member hereby acknowledges, represents and warrants to, and
covenants and agrees with the Operating Partnership and the REIT that (and
each representation and warranty set forth below shall be deemed remade as
of the Closing Date):
2.1 Approval of LP Agreement. Contributing Member has reviewed and approved the
forms of the LP Agreement and the Subscription Documents and Contributing
Member consents to any changes to the LP Agreement and the Subscription
Documents approved by the REIT.
2.2 Authority; Authorization; Execution and Delivery.
(a) Contributing Member has full power and authority to enter into the
Subscription Documents and to consummate the transactions contemplated
by this Agreement.
(b) The execution and delivery of the Subscription Documents by
Contributing Member and the consummation by Contributing Member of the
transactions contemplated by the Subscription Documents have been duly
authorized by all necessary action on the part of Contributing Member
and will not constitute or result in a breach or default under, or
conflict with or violate, any agreement or other undertaking, to which
Contributing Member is a party or by which Contributing Member is
bound or with any judgment, decree, statute, order, rule or regulation
applicable to Contributing Member or Contributing Member's assets,
and, if Contributing Member is not an individual, will not violate any
provisions of the organizational or other formation or governing
documents of Contributing Member.
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(c) The Subscription Documents have been duly executed and delivered by
Contributing Member and constitute valid and legally binding
obligations of Contributing Member, enforceable against Contributing
Member in accordance with and subject to their respective terms,
subject to applicable bankruptcy, insolvency, moratorium or other
similar laws relating to creditors' rights and general principles of
equity. The signatures on the Subscription Documents are genuine, and
the signatory, if Contributing Member is an individual, has legal
competence and capacity to execute the same, or, if Contributing
Member is not an individual, the signatory has been duly authorized to
execute the same on behalf of Contributing Member.
2.3 Purchase for Investment.
(a) Contributing Member is acquiring the Contribution OP Units (or shares
of Common Stock of the REIT issued to Contributing Member in
connection with a Redemption (as defined in the LP Agreement) (such
shares of Common Stock, "Redemption Shares")) for Contributing
Member's own account (or if Contributing Member is a trustee, for a
trust account) for investment only, and not with a view to or for sale
in connection with any distribution of all or any part of such
Contribution OP Units.
(b) Contributing Member hereby agrees that Contributing Member shall not,
directly or indirectly, transfer all or any part of such Contribution
OP Units or Redemption Shares (or solicit any offers to buy, purchase
or otherwise acquire or take a pledge of all or any part of the
Contribution OP Units or Redemption Shares) except in accordance with
(i) the registration provisions of the Securities Act, and the
regulations thereunder or an exemption from such registration
provisions; (ii) any applicable state or non-U.S. securities laws;
(iii) the terms of this Agreement; (iv) the LP Agreement; and (v) the
Charter and by-laws of the REIT (as amended from time to time,
collectively, the "REIT Organizational Documents"), as applicable.
(c) Contributing Member understands that (i) Contributing Member must bear
the economic risk of an investment in the Contribution OP Units and
Redemption Shares for an indefinite period of time because, among
other reasons, the transfer of the Contribution OP Units and
Redemption Shares have not been registered under the Securities Act
and, therefore, the Redemption Shares and Contribution OP Units cannot
be sold unless such resale is subsequently registered under the
Securities Act or an exemption from such registration is available;
and (ii) sales or transfers of the Contribution OP Units and
Redemption Shares are further restricted by the provisions of the LP
Agreement or the REIT Organizational Documents, as applicable, and may
be restricted by other applicable securities laws. If at any time the
Contribution OP Units or Redemption Shares are evidenced by
certificates or other documents, each such certificate or other
document shall contain a legend stating that (x) the Contribution OP
Units or Redemption Shares, as applicable, (1) have not been
registered under the Securities Act or the securities laws of any
state; (2) have been issued pursuant to a claim of exemption from the
registration provisions of the Securities Act and any state securities
law which may be applicable; and (3) may not be sold, transferred or
assigned without compliance with the registration provisions of the
Securities Act and the regulations thereunder and any other applicable
state securities laws or compliance with applicable exemptions
therefrom; and (y) sale, transfer or assignment of such Contribution
OP Units or Redemption Shares, as applicable, is further subject to
restrictions contained in the LP Agreement or the REIT Organizational
Documents, as applicable, and such Contribution OP Units or Redemption
Shares may not be sold, transferred or assigned unless and to the
extent permitted by, and
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in accordance with, the provisions of the LP Agreement or the REIT
Organizational Documents, as applicable.
2.4 Information.
(a) Contributing Member has carefully reviewed this Agreement, that
certain Offering Memorandum for the Rule 144A Offering, the forms of
the LP Agreement, the Charter and by-laws of the REIT. Contributing
Member has been provided an opportunity to ask questions of, and
Contributing Member has received answers thereto satisfactory to
Contributing Member from the Operating Partnership and the REIT or
their respective representatives regarding the terms and conditions of
the issuance of the Contribution OP Units, and Contributing Member has
obtained all additional information requested by Contributing Member
of the Operating Partnership and the REIT and their respective
representatives to verify the accuracy of all information furnished to
Contributing Member regarding the issuance of the Contribution OP
Units.
(b) Contributing Member is not relying on the Operating Partnership or the
REIT or any of their respective subsidiaries, affiliates or any of
their respective representatives or agents with respect to any tax or
other economic considerations involved in connection with the
Contribution Consideration or Redemption Shares.
(c) Contributing Member has been advised to consult with his or its tax,
legal and other advisors regarding the issuance of the Contribution OP
Units and its effects, the tax consequences of making and not making a
subscription hereunder, and has obtained, in Contributing Member's
judgment, sufficient information to evaluate the merits and risks of
such subscription and investment.
(d) Contributing Member has not been furnished with and has not relied on
any oral or written representation from any party other than his or
its advisors in connection with the issuance of the Contribution OP
Units or Redemption Shares that is not contained in this Agreement.
2.5 Economic and Liquidity Risk.
(a) Contributing Member has such knowledge and experience in financial and
business matters such that Contributing Member is capable of
evaluating the merits and risks of making an investment in the
Contribution OP Units and/or Redemption Shares, and that Contributing
Member has evaluated the risks of investing in the Contribution OP
Units and/or Redemption Shares and has determined that they are a
suitable investment for Contributing Member.
(b) Contributing Member understands that an investment in the Contribution
OP Units and/or Redemption Shares is a speculative investment that
involves very significant risks and tax uncertainties and that
Contributing Member is prepared to bear all of the economic, tax and
other risks of an investment in the Contribution OP Units or
Redemption Shares for an indefinite period of time, and is able to
withstand a total loss of Contributing Member's investment in the
Contribution OP Units or Redemption Shares.
(c) Contributing Member has adequate net worth and no need for liquidity
in his investment in the Contribution OP Units or Redemption Shares.
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2.6 Eligibility; Accredited Investor Status. Contributing Member is an
"accredited investor" as defined in Regulation D under the Securities Act.
Contributing Member has, in connection with the execution of this Agreement
delivered to the Operating Partnership and Accredited Investor
Questionnaire and will, upon request, execute, deliver and/or provide any
additional documents deemed by the Operating Partnership or the REIT to be
necessary or desirable to confirm the status of Contributing Member as an
"accredited investor."
2.7 Ownership of the Membership Interest.
(a) Contributing Member has good and marketable title to the Membership
Interest, free and clear of all pledges, claims, liens, restrictions,
charges, encumbrances, security interests, conditional sales
agreements and other obligations of any kind or nature. Contributing
Member shall not sell, convey, assign or otherwise transfer all or any
portion of the Membership Interest prior to the Closing Date.
(b) Contributing Member is not and will not be (i) an "employee benefit
plan" within the meaning of Section 3(3) of ERISA, whether or not
subject to ERISA, (ii) a "plan" within the meaning of Section 4975 of
the Internal Revenue Code of 1986, as amended (the "Code"), or (iii)
any person or entity whose assets include or are deemed to include the
assets of any such "employee benefit plan" or "plan" by reason of
Section 2510.3-101 of the Regulations of the U.S. Department of Labor
or otherwise. Contributing Member will, upon request, execute, deliver
and/or provide any additional documents deemed by the Operating
Partnership or the REIT to be necessary or desirable to confirm the
foregoing.
2.8 Intentionally Omitted.
2.9 Status as Non-Foreign Person. Contributing Member is not a foreign person
and is not owned directly or indirectly, in whole or in part, by a foreign
person as determined for purposes of Section 1445 of the Code, and the
regulations promulgated thereunder.
2.10 Continuing Efforts. Subject to the terms and conditions herein provided,
Contributing Member covenants and agrees to use its best efforts to take,
or cause to be taken, all actions and do, or cause to be done, all things
necessary, proper and/or appropriate to consummate and make effective the
transactions contemplated by this Agreement.
2.11 No Brokers or Finders. Contributing Member has not entered into any
agreement and is not otherwise liable or responsible to pay any brokers' or
finders' fees or expenses to any person or corporation, partnership,
limited liability company, business trust or other entity (an "Entity")
with respect to this Agreement or the transactions contemplated hereby.
2.12 Tax Matters. To the best of the knowledge of Contributing Member:
(a) the Company has filed within the time periods (including any
extensions of such time periods filed by the Company) and in the
manner prescribed by law all federal, state, and local tax returns and
reports;
(b) all tax returns and reports filed by the Company are true and correct
in all material respects;
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(c) the Company has paid in full all material taxes of whatever kind or
nature to be paid by the Company for the periods covered by such
returns (unless an extension of such periods has been properly filed
for such returns);
(d) the Company has no material tax deficiency or claim outstanding,
assessed, threatened, or proposed against it;
(e) there are no material tax liens, whether imposed by the United States,
any state, local, or other taxing authority, outstanding against the
Company or any of its assets, and
(f) the federal, state, and local tax returns of the Company are not
currently under audit, nor has the Company received any notice of any
federal, state, or local audit.
2.13 The Company.
(a) As of the date hereof, (a) the sole asset of the Company is its Class
A Membership Interest in VWP; and (b) the Company has no liabilities.
(b) The owners of all of the membership interests in the Company are
Contributing Member, Xxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxxx.
3. Representations, Warranties and Covenants of the Operating Partnership. The
Operating Partnership hereby acknowledges, represents and warrants to, and
covenants and agrees with, Contributing Member that (and each
representation and warranty set forth below shall be deemed remade as of
the Closing Date):
3.1 Authority; Authorization; Execution and Delivery.
(a) The Operating Partnership has full power and authority to enter into
this Agreement and to consummate the transactions contemplated herein.
(b) The execution and delivery of this Agreement and the consummation by
the Operating Partnership of the transactions contemplated herein have
been duly authorized by all necessary action on the part of the
Operating Partnership.
(c) This Agreement has been duly executed and delivered by the Operating
Partnership and constitutes the valid and legally binding obligations
of the Operating Partnership, enforceable against the Operating
Partnership in accordance with and subject to its terms, subject to
applicable bankruptcy, insolvency, moratorium or other similar laws
relating to creditors' rights and general principles of equity.
3.2 Commercially Reasonable Efforts. Subject to the terms and conditions herein
provided, the Operating Partnership covenants and agrees to use
commercially reasonable efforts to take, or cause to be taken, all actions
and do, or cause to be done, all things necessary, proper and/or
appropriate to consummate and make effective the transactions contemplated
by this Agreement.
4. Survival. The representations, warranties, covenants and agreements
contained in this Agreement and the Accredited Investor Questionnaire shall
survive the consummation of the transactions contemplated herein.
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5. Conditions to Consummation by the Operating Partnership. The obligations of
the Operating Partnership to consummate the Contribution are subject to the
fulfillment of the conditions set forth in this Article 5, any one or more
of which may be waived by the Operating Partnership:
5.1 Representations, Warranties and Covenants. The representations and
warranties of Contributing Member contained in this Agreement shall be
true, correct and complete in all material respects on and as of the
Closing Date with the same force and effect as though made on and as of
such date unless expressly stated herein to be made as of a specified date.
Contributing Member shall have performed in all material respects all
obligations required to be performed by him or it under this Agreement at
or prior to the Closing Date.
5.2 Closing Documents. Contributing Member shall have duly executed and
delivered to the Operating Partnership on or prior to the Closing Date all
documents that are reasonably requested by the Operating Partnership to
effectuate the transactions contemplated hereby, including but not limited
to the Subscription Documents.
6. Conditions to Consummation by Contributing Member. The obligations of
Contributing Member to consummate the Contribution and receive the
Contribution Consideration pursuant to this Agreement are subject to the
fulfillment of the following conditions(which may be waived by him or it):
6.1 Representations, Warranties and Covenants. The representations and
warranties of the Operating Partnership contained herein shall be true,
correct and complete in all material respects on and as of the Closing Date
with the same force and effect as though made on and as of such date unless
expressly stated therein to be made as of a specified date. The Operating
Partnership shall have performed in all material respects all obligations
required to be performed by it under this Agreement at or prior to the
Closing Date.
7. Indemnity.
7.1 Contributing Member hereby agrees to indemnify and defend the Operating
Partnership and the REIT and their respective direct and indirect partners,
members, shareholders, officers, directors and affiliates (each, an
"Indemnified Party") against and to hold them harmless from any and all
damage, loss, liability and expense incurred or suffered by any Indemnified
Party arising out of or based upon the inaccuracy of any representation or
warranty or breach of any covenant or agreement made or to be performed by
Contributing Member pursuant to the Subscription Documents.
7.2 The Operating Partnership hereby agrees to indemnify and defend the
Contributing Member against any and all damage, loss, liability and expense
incurred or suffered by it or him out of or based upon the inaccuracy of
any representation or warranty or breach of any agreement made or to be
performed by the Operating Partnership pursuant to this Agreement.
8. Power of Attorney; Amendments to Operating Agreement and LP Agreement. By
executing this Agreement, Contributing Member hereby irrevocably
constitutes and appoints the Operating Partnership (or a substitute
appointed by the Operating Partnership) as his or its attorney-in-fact and
agent with full power of substitution to take any and all actions and
execute the LP Agreement, the Registration Rights Agreement and any other
document and agreement relating to the Contribution Consideration or this
Agreement, on Contributing Member's behalf and in Contributing Member's
name, as the Operating Partnership may deem necessary or desirable.
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9. Termination. This Agreement shall terminate automatically if the Closing
Date has not occurred within two years after the date of this Agreement.
10. Section 721(a) Exchange. The Contribution in exchange for the Contribution
Consideration is intended to be governed by Section 721(a) of the Code to
the maximum extent possible, and Contributing Member and the Operating
Partnership hereby consent to such treatment.
11. General Provisions.
11.1 Modification. Neither this Agreement nor any provisions hereof shall be
waived, modified, discharged or terminated except by an instrument in
writing signed by the party against whom any waiver, modification,
discharge or termination is sought; provided that Contributing Member
hereby agrees to future modifications of this Agreement as may be
reasonably proposed by the Operating Partnership or the REIT, provided that
such modifications do not have any negative impact on the tax position of
Contributing Member.
11.2 Notices. All notices, requests and other communications hereunder must be
in writing and will be deemed to have been duly given only if delivered
personally or mailed (first class postage prepaid) to the parties at the
following addresses:
If to Contributing Member: Xxxxxxx X. Shell
c/o Vintage Wine Trust
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxx, Xxxxxxxxxx 00000
If to the Company: Ciatti Shell LLC
c/o Vintage Wine Trust
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxx, Xxxxxxxxxx 00000
If to the Operating Partnership Insert applicable addressee:
or the REIT: [Vintage Wine Trust, LP]
[Vintage Wine Trust]
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxx, Xxxxxxxxxx 00000
with a copy to:
Xxxxxxxx Chance US LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxxxxxx, Esq.
Facsimile: 000-000-0000
All such notices, requests and other communications will (a) if delivered
personally to the applicable addressees as provided in this Section 11.2,
be deemed given upon delivery; and (b) if delivered by mail to the
applicable addressees as provided in this Section 11.2, be deemed given
upon receipt or refusal (in each case regardless of whether such notice,
request or other communication is received by any other Entity or person to
whom a copy of such notice is to be delivered pursuant to this Section
11.2). Any party from time to time may change its address or other
information for the purpose of notices to that party by giving notice
specifying such change to the other parties hereto in accordance with this
Section 11.2.
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11.3 Binding Effect. Except as otherwise provided herein, this Agreement shall
be binding upon and inure to the benefit of the parties and their heirs,
executors, administrators, successors, legal representatives and permitted
assigns. If Contributing Member is itself more than one person, the
obligations of such persons shall be joint and several and the
acknowledgements, representations, warranties, covenants and agreements
herein contained shall be deemed to be made by and be binding upon each
such person and his or her heirs, executors, administrators, successors,
legal representatives and permitted assigns.
11.4 Entire Agreement. The Subscription Documents and the documents referred to
therein contain the entire agreement of the parties with respect to the
Contribution and the subscription by Contributing Member of the
Contribution OP Units, and there are no representations, warranties,
covenants or other agreements except as stated or referred to herein or
therein.
11.5 Ambiguity. The parties hereto agree that any ambiguity with respect to the
Contribution or the rights or obligations of the parties under this
Agreement shall be resolved by the Board of Directors of the REIT, which
resolution shall be binding on the parties.
11.6 Assignability. This Agreement is not transferable or assignable by any
party hereto. This Agreement shall be for the benefit of the parties
hereto.
11.7 Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
11.8 Counterparts. This Agreement may be executed by facsimile signature and
through the use of separate signature pages or in counterparts, and each of
such counterparts shall, for all purposes, constitute one agreement binding
on the parties hereto, notwithstanding that the parties hereto are not
signatories to the same counterpart.
11.9 Further Assurances. Contributing Member will, from time to time, execute
and deliver to the Operating Partnership and/or the REIT all such other and
further instruments and documents and take or cause to be taken all such
other and further action as the Operating Partnership and/or the REIT may
reasonably request in order to effect the transactions contemplated by this
Agreement. Without limiting the foregoing, the Operating Partnership or the
REIT may request from Contributing Member such additional information as it
may deem necessary to evaluate the eligibility of Contributing Member to
acquire the Contribution OP Units, and may request from time to time such
information as it may deem necessary to determine the eligibility of
Contributing Member to hold the Contribution OP Units or Redemption Shares
or to enable the Operating Partnership or the REIT to determine
Contributing Member's compliance with applicable regulatory requirements or
tax status, and Contributing Member shall provide such information as may
reasonably be requested.
11.10 Severability. If any term or provision of this Agreement shall to any
extent be invalid or unenforceable, the remainder of this Agreement shall
not be affected thereby, and each term and provision of this Agreement
shall be valid and enforceable to the fullest extent permitted by law. Upon
the determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties shall negotiate in good faith to
modify this Agreement so as to effect their original intent as closely as
possible in an acceptable manner to the end that transactions contemplated
hereby are fulfilled to the extent possible.
11.11 Specific Performance. The parties hereto acknowledge that there would be
no adequate remedy at law if any party fails to perform any of its
obligations hereunder, and accordingly agree that
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each party, in addition to any other remedy to which it may be entitled at
law or in equity, shall be entitled to compel specific performance of the
obligations of any other party under this Agreement in accordance with the
terms and conditions of this Agreement.
11.12 Expenses. Each of the parties hereto agrees to pay the expenses incurred
by it in connection with the negotiation, preparation, review, execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby, including the fees and expenses of counsel to such
party.
[The remainder of this page has been intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
CONTRIBUTING MEMBER: CIATTI SHELL:
CIATTI SHELL LLC,
a Delaware limited liability company
/s/ Xxxxxxx X. Shell By: /s/ Xxxxxxx X. Shell
------------------------------------- ------------------------------------
Xxxxxxx X. Shell Name: Xxxxxxx X. Shell
Title: Manager
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Manager
THE OPERATING PARTNERSHIP: THE REIT:
VINTAGE WINE TRUST, LP, VINTAGE WINE TRUST,
a Delaware limited partnership a Maryland real estate investment trust
By: Vintage Wine Business Trust I,
a Maryland business trust and its
general partner
By: /s/ Xxxxxxx X. Shell By: /s/ Xxxxxxx X. Shell
--------------------------------- ------------------------------------
Name: Xxxxxxx X. Shell Name: Xxxxxxx X. Shell
Title: Secretary Title: Chief Operating Officer
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