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EXHIBIT 10.1
TRANSFER OF PARTNERSHIP INTEREST
THIS TRANSFER OF PARTNERSHIP INTEREST (this "TRANSFER") is made as of the
29th day of December, 1998, but intended to be effective as of the 12th day of
November, 1998 (the "EFFECTIVE DATE"), by and among EC HOLDINGS, INC., a
Georgia corporation ("TRANSFEROR"), AMC, Inc., a Georgia corporation ("AMC";
Transferor and AMC, collectively, "SELLERS"), and FBCC Co., a Texas general
partnership ("TRANSFEREE").
W I T N E S S E T H:
WHEREAS, Transferor is a limited partner in Boston Properties Limited
Partnership (the "PARTNERSHIP"), a Delaware limited partnership currently
existing pursuant to the Second Amended and Restated Agreement of Limited
Partnership of Boston Properties Limited Partnership dated June 29, 1998 (as
amended, the "PARTNERSHIP AGREEMENT");
WHEREAS, Transferor became such limited partner by virtue of the Seventh
Amendment to Second Amended and Restated Agreement of Limited Partnership dated
November 12, 1998, pursuant to which Transferor was admitted to the Partnership
as an "Additional Limited Partner" (as defined in the Partnership Agreement)
holding 501,639.46 "Series Two Preferred Units" (as defined in the Partnership
Agreement) (the "PREFERRED UNITS");
WHEREAS, Transferor wishes hereby to transfer a portion of the Preferred
Units to Transferee and Transferee wishes hereby to acquire a portion of the
Preferred Units; and
WHEREAS, AMC is the parent of Transferor and joins in this Transfer for the
purposes set forth below.
NOW, THEREFORE, in consideration of the foregoing provisions and other
good and valuable consideration, the receipt and sufficiency whereof is hereby
acknowledged by each party hereto, the parties hereto hereby covenant and agree
as follows;
1. DEFINED TERMS. Defined terms used in this Transfer (as indicated by
the capitalization of the initial letter in each word thereof) shall, if such
terms are defined in the Partnership Agreement and are not otherwise defined in
this Transfer, be deemed to have the same definitions as are ascribed thereto
in the Partnership Agreement.
2. TRANSFER OF UNITS. Transferor does hereby transfer, convey and
assign effective as of the Effective Date, without representation or warranty
of any nature whatsoever except as expressly set forth herein, 164,419.0
Preferred Units (the "TRANSFERRED UNITS") having an aggregate face value of
$8,220,950.00, together with any and all other right, title, interest and claim
of Transferor in and to the Partnership as of the Effective Date incidental to
the Transferred Units (but not incidental to the remaining 337,220.46 Preferred
Units retained by Transferor (the "RETAINED UNITS")). This transfer of the
Transferred Units by Transferor to Transferee is made expressly subject to the
terms and conditions of the following (collectively, the "PARTNERSHIP
DOCUMENTS"):
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a. The Partnership Agreement;
b. the Registration Rights and Lock-Up Agreement among the Partnership
and Transferor, et al., dated November 12, 1998 (the "REGISTRATION
RIGHTS AGREEMENT");
c. the Boston Properties Limited Partnership Certificate of Designations
Establishing and Fixing the Rights, Limitations and Preferences of a
Series of Preferred Units, executed by the general partner of the
Partnership as of November 12, 1998, amending the Partnership
Agreement; and
d. the Contribution Agreement among the Partnership and Transferor, et
al., dated November 12, 1998 (the "CONTRIBUTION AGREEMENT").
The parties acknowledge that pursuant to Section 10.4 of the Contribution
Agreement, the total number of Preferred Units issued to Transferor by the
Partnership may be adjusted once prorations are finalized under the Contribution
Agreement. Any increase or decrease in the number of Preferred Units issued to
Transferor shall operate to increase or decrease, as the case may be, only the
Retained Units and not the Transferred Units; it being the intent of the parties
that Transferor alone shall bear the sole risk and benefit of any adjustment in
the total number of Preferred Units pursuant to said Section 10.4 of the
Contribution Agreement. Further, should Transferor hereafter receive any
distributions from the Partnership attributable to the Transferred Units,
whether for a period before or after the date of this Agreement, Transferor
shall promptly remit such amount to Transferee.
3. ACCEPTANCE OF TRANSFER. Transferee (i) hereby accepts the transfer of
the Transferred Units and assumes and agrees to be bound by all of the terms and
conditions of the Partnership Documents applicable to the Transferred Units, and
(ii) hereby assumes and agrees to perform all of the obligations and liabilities
imposed by the Partnership Documents upon the owner and holder of the
Transferred Units.
4. CONSIDERATION. In consideration of the above transfer of the
Transferred Units, Transferee has simultaneously herewith (i) endorsed, assigned
and delivered to AMC, the original Class A Elevated Antecedent Debt Notes(s) Due
July 31, 2000 issued by AMC to Transferee in the aggregate principal face amount
of $2,908,669.13 and (ii) transferred to AMC via bankwire funds in the amount of
$4,490,185.87 (which funds AMC agrees to use promptly to redeem the remaining
outstanding Class A Elevated Antecedent Debt Notes Due July 31, 2000).
5. REPRESENTATIONS AND WARRANTIES OF SELLERS. Xxxxxxx xxxxx represent and
warrant to Transferee as follows:
a. the execution, delivery and performance of this Transfer by
Sellers are within each Seller's respective power and have been duly
authorized by all necessary corporate actions of each Seller;
b. Transferor holds clear and unencumbered title to the Transferred
Units subject to the Partnership Documents and to the collateral
documents securing the Notes
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referred to in Section 4 hereof, which collateral documents are to be fully
released by Trustee upon receipt of the consideration specified in Section 4
hereof; and
c. Transferor has received no distributions from the Partnership
with regard to the Preferred Units (except for one distribution in the
aggregate amount of $13,744.92, $4,505.11 of which is being paid by Sellers
to Transferee on even date herewith).
6. REPRESENTATIONS AND WARRANTIES OF TRANSFEREE. Transferee hereby
represents and warrants to Sellers as follows:
a. the execution, delivery and performance of this Transfer by
Transferee are within Transferee's power and have been duly authorized by
all partnership or corporate actions;
b. Transferee is acquiring the Transferred Units for its own
account and not with a view to or for sale in connection with any
distribution thereof within the meaning of the Securities Act of 1933, as
amended (the "Securities Act"). Transferee understands that the Transferred
Units (and, subject to the Registration Rights Agreement, the corporate
shares of the Partnership's general partner issuable upon exchange thereof
(the "Shares")) have not been and will not be registered under the
Securities Act or any state securities laws, have been offered and sold
pursuant to exemptions therefrom and cannot be resold without registration
thereunder or exemption therefrom. Transferee represents (i) that it has
sufficient knowledge and experience in financial and business matters to
enable it to evaluate the merits and risks of investment in the Transferred
Units (and the Shares that may be issued in lieu of redemption thereof),
(ii) that it has the ability to bear the economic risk of acquiring the
Transferred Units, and (iii) that it has been supplied with, or had access
to, information to which a reasonable investor would attach significance in
making investment decisions, including, but not limited to, all information
as it has requested, to answer all of its inquiries about the Partnership
and its general partner, and to enable it to make its decision to acquire
the Transferred Units (and the Shares that may be issued in lieu of
redemption thereof). Transferor represents and warrants that it is an
"accredited investor" as such term is defined in Rule 501 under the
Securities Act.
7. FURTHER ASSURANCES. Upon the reasonable request of any party hereto,
any other party will execute and deliver such other documents, releases,
assignments and other instruments as may be required to effectuate completely
the transfer and assignment to Transferee of the Transferred Units and the
redemption in full of the Notes and to otherwise carry out the purposes of this
Transfer. Without limiting the foregoing, Sellers will execute any documents
reasonably requested by Transferee to assist Transferee in having its title to
the Transferred Units registered on the books of the Partnership and its being
admitted as an Additional Limited Partner in the Partnership should Transferee
at any time wish to pursue such admission.
8. GOVERNING LAW. This Transfer shall be construed by and interpreted
in accordance with the laws of the State of Delaware.
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9. COUNTERPARTS. This Transfer may be executed in any number of
counterparts, each of which shall constitute an original and all of which,
when taken together, shall constitute one agreement.
10. SUCCESSORS AND ASSIGNS. This Transfer shall be binding upon and inure
to the benefit of the parties hereto and their respective heirs, legal
representatives, successors and assigns.
IN WITNESS WHEREOF, the parties have executed this Transfer as of the date
first above written.
TRANSFEROR
EC HOLDINGS, INC., a Georgia corporation
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: President
[CORPORATE SEAL]
AMC
AMC, INC., a Georgia corporation
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: President
[CORPORATE SEAL]
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TRANSFEREE
FBCC CO., a Texas general partnership
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: As Agent
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