CONTRIBUTION AGREEMENT
Exhibit 10.5
THIS
CONTRIBUTION AGREEMENT (this “Agreement”) is
effective as of this ___ day of November, 2007, by and between [Contributing
Entity], a _____________________ (“Contributor”), and
The Lexington Master Limited Partnership, a Delaware limited partnership
(“MLP”).
WITNESSETH:
WHEREAS,
Contributor is the owner of [description of interests];
WHEREAS,
Contributor desires to contribute all of its right, title and interest in
and to
[description of interests] (such right, title and interest being hereinafter
referred to as the “Interests”) to the
MLP in exchange for units of limited partnership interests in the MLP (the
“Contribution”)
all in accordance with the provisions of that certain Second Amended and
Restated Agreement of Limited Partnership of MLP, dated December 31, 2006
(the
“Partnership
Agreement”);
WHEREAS,
immediately after the Contribution, the MLP will own the Interests;
and
NOW,
THEREFORE, in consideration of the premises and the representations, warranties
and agreements hereinafter contained, the receipt and sufficiency of which
are
hereby acknowledged, the parties hereto agree as follows:
1. Capitalized
Terms. Capitalized terms used herein and not otherwise defined
shall have the respective meanings ascribed thereto in the Partnership
Agreement.
2. Contribution. On
and effective as of the date hereof, subject to the terms and conditions
of this
Agreement, Contributor hereby contributes, and the MLP hereby accepts, the
Interests free and clear of all liens, claims, charges and encumbrances of
any
kind or nature whatsoever, other than the terms, covenants and provisions
of
this Agreement.
3.
Consideration. As
consideration for the Contribution, the MLP hereby issues in accordance with
Section 4.2.B(2) of the Partnership Agreement [__] units of limited partnership
interests in the MLP to Contributor, which units are issued based on an Agreed
Value of $________ and an average Daily Market Price of the REIT Shares for
the
twenty (20) Business Days preceding the date hereof of $____.
4. Representations
and
Warranties of Contributor.
(a) Organization
and
Authority. Contributor is duly organized, validly
existing and in good standing under the laws of its jurisdiction and
has
all
requisite partnership power and authority to execute, deliver and perform
this
Agreement and to consummate the transaction contemplated
hereby. Contributor has duly taken all action necessary to authorize
the execution, delivery and performance of this Agreement.
(b) No
Conflict. Neither the execution of this Agreement nor
the consummation by Contributor of the transaction contemplated hereby will
contravene the certificate of limited partnership or the partnership agreement
of Contributor or will constitute a violation of or a default under, or conflict
with or require a consent under, any contract, commitment, agreement,
understanding, arrangement, restriction, law, statute, rule, regulation,
judgment, order, injunction, suit, action or proceeding of any kind to which
Contributor is a party or by which Contributor or any of its assets is
bound.
(c) Valid
Agreement. This Agreement has been duly executed and delivered
by Contributor and (assuming it is a legal, valid and binding obligation
of the
MLP), is the legal, valid and binding obligation of Contributor, enforceable
against Contributor in accordance with its terms, except as such enforcement
may
be limited by any bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or similar laws affecting creditors’ rights and remedies generally
and by general principles of equity, regardless of whether enforcement is
sought
in a proceeding at law or in equity.
(d) Title
to
Interests. Contributor represents and warrants to the MLP that
Contributor has good and marketable title to the Interests, is the record
and
beneficial owner of the Interests and has the right to transfer the
Interests. Upon the Contribution, the Interests are, and will be,
free and clear of any encumbrances and liens.
5. Representations
and
Warranties of the MLP.
(a) Organization
and
Authority. The MLP is duly organized, validly existing and in
good standing under the laws of its jurisdiction and has all requisite
partnership or other power and authority to execute, deliver and perform
this
Agreement and to consummate the transaction contemplated hereby. The
MLP has duly taken all action necessary to authorize the execution, delivery
and
performance of this Agreement.
(b) No
Conflict. Neither the execution of this Agreement nor
the consummation by the MLP of the transaction contemplated hereby will
contravene the certificate of limited partnership of Contributor or the
Partnership Agreement or will constitute a violation of or a default under,
or
conflict with or require a consent under, any contract, commitment, agreement,
understanding, arrangement, restriction, law, statute, rule, regulation,
judgment, order, injunction, suit, action or proceeding of any kind to which
the
MLP is a party or by which the MLP or any of its assets is bound.
(c) Valid
Agreement. This Agreement has been duly executed and delivered
by the MLP and (assuming it is a legal, valid and binding obligation
of
Contributor),
is the legal, valid and binding obligation of the MLP, enforceable against
the
MLP in accordance with its terms, except as such enforcement may be limited
by
any bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
or
similar laws affecting creditors’ rights and remedies generally and by general
principles of equity, regardless of whether enforcement is sought in a
proceeding at law or in equity.
6. Miscellaneous.
(a) Further
Actions. Each party shall execute and deliver such
certificates and other documents and take such other actions as may reasonably
be requested by the other parties in order to consummate or implement the
transactions contemplated by this Agreement.
(b) Assignment. This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and permitted assigns, but shall not be assignable,
by operation of law or otherwise, by any party without the prior written
consent
of the other party.
(c) Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original but all of which together will constitute one and the
same
instrument. A facsimile, telecopy or other reproduction of this
Agreement may be executed by one or more parties hereto, and an executed
copy of
this Agreement may be delivered by one or more parties hereto by facsimile
or
similar instantaneous electronic transmission device pursuant to which the
signature of or on behalf of such party can be seen, and such execution and
delivery shall be considered valid, binding and effective for all purposes
as of
the date first written above. At the request of any party hereto, all
parties hereto agree to execute an original of this Agreement as well as
any
facsimile, telecopy or other reproduction hereof.
(d) Governing
Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York, without regard
to
the conflicts of law principles of such State.
[Signature
Page Follows]
THIS
AGREEMENT has been signed by each of the parties hereto as of the date first
set
forth above.
CONTRIBUTOR
By:
____________________________
Xxxxxx
X. Xxxxxxxxx
Senior
Vice President
By:
Lex
GP-1 Trust, its general partner
By:
____________________________
Xxxxxx
X. Xxxxxxxxx
Senior
Vice President
