CONTRIBUTION AGREEMENT
This
Contribution Agreement (this “Agreement”) is
entered into as of June 30, 2010 by and among LIGHTSTONE HOLDINGS, LLC, a
Delaware limited liability company (the “Company”) and
LIGHTSTONE VALUE PLUS REIT II LP, a Delaware limited partnership (the “REIT
OP”).
W
I T N E S S E T H :
WHEREAS, Xxxxx Xxxxxxxxxxxx (“Xxxxxxxxxxxx”) is the
sole member and managing member of the Company, owning a 100% membership
interest in the Company;
WHEREAS, Xxxxxxxxxxxx, REIT OP and
Lightstone SLP II LLC (“Lightstone SLP”)
entered into that certain Third Amended and Restated Agreement, dated as of
January, 30, 2009, pursuant to which Xxxxxxxxxxxx is required on a semi-annual
basis to fund the purchase of subordinated profits interests in the REIT OP with
(i) cash or (ii) contributions of interests in real property of equivalent value
(“Xxxxxxxxxxxx Funding
Requirement”);
WHEREAS, the Company owns a 50.5%
membership interest (“Membership Interest”)
in Brownmill LLC, a New Jersey limited liability company, the owner (“Owner”) of those
certain properties known as Browntown Shopping Center located in Old Bridge, New
Jersey and Millburn Mall located in Union, New Jersey (the “Properties”);
WHEREAS,
Xxxxxxxxxxxx is the owner of 100% interest in Lightstone SLP;
WHEREAS,
Xxxxxxxxxxxx, as the owner of the Company, desires to satisfy the Xxxxxxxxxxxx
Funding Requirement and, in furtherance thereof, directs the Company to
contribute to the REIT OP a 51.98% of its Membership Interest (equaling to
26.25% interest in the Owner of the Properties) (the “Contributed
Interest”);
WHEREAS,
as consideration for the Contributed Interest in the Owner, the REIT OP shall
issue to Lightstone SLP associate partnership units in the REIT OP having a
value of $2,500,000.00 (the “Associate Partnership
Units”); and
WHEREAS,
Xxxxxx X. Xxxxxxx & Co. (“Xxxxxxx”), an independent third-party engaged by
the REIT OP, has provided its opinion as to the fairness to the REIT OP, from a
financial point of view, of the $2,500,000 value ascribed to the Contributed
Interest, which fairness opinion was rendered by Xxxxxxx to the REIT OP on or
about July 1, 2010.
NOW
THEREFORE, in consideration of the premises and covenants set forth herein and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, intending to be legally bound hereby, the parties agree
as follows:
1. Issuance of the Associate
Partnership Units. As of the date hereof, the REIT OP hereby
issues the Associate Partnership Units to Lightstone SLP in exchange for the
contribution of the Contributed Interest in the Owner by the Company to the REIT
OP at the direction of Xxxxxxxxxxxx. The REIT OP shall credit a capital
account established for Lightstone SLP in the amount of
$2,500,000.00. Lightstone SLP will have a capital account in REIT OP in
consideration of the contribution of the Contributed
Interest.
2. Representations and
Warranties of the REIT OP. The REIT OP represents and warrants
to the Company that:
(a) The
REIT OP is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Maryland and has all requisite corporate
power and all material governmental licenses, authorizations, permits, consents
and approvals required to carry on its business.
(b) The
execution, delivery and performance by the REIT OP of this Agreement, and the
consummation of the transactions contemplated hereby, are within the corporate
powers of the REIT OP and have been duly authorized by all necessary corporate
action on the part of the REIT OP. This Agreement constitutes the
valid and binding agreement of the REIT OP.
(c) The
execution, delivery and performance by the REIT OP of this Agreement, and the
consummation of the transactions contemplated hereby, do not (i) violate the
articles of incorporation or bylaws of the REIT OP; or (ii) contravene or
conflict with, or constitute a violation of, any material applicable law in any
material respect.
(d) The
Associate Partnership Units is being contributed to the Company free and clear
of any and all liens, charges and security interests.
3. Representations and
Warranties of the Company. The Company represents and warrants
to the REIT OP that:
(a) The
Company has been duly formed as a limited Company and is validly existing and in
good standing under the laws of the State of Delaware and has all requisite
power and authority and all material governmental licenses, authorizations,
permits, consents and approvals required to carry on its business.
(b) The
execution, delivery and performance by the Company of this Agreement, and the
consummation of the transactions contemplated hereby, are within its powers and
authority and have been duly authorized by all necessary limited partnership
action. This Agreement constitutes the valid and binding agreement of
the Company.
(c) The
execution, delivery and performance by the Company of this Agreement, and the
consummation of the transactions contemplated hereby, do not (i) violate the
organizational documents of the Company; or (ii) contravene or conflict with, or
constitute a violation of, any material applicable law in any material
respect.
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(d) The
26.25% membership interest in the Owner to be received by the REIT OP will upon
contribution be duly issued, free of liens, charges and security interests
(other than any existing under the limited liability company agreement of the
Owner).
(e) To
the best of its knowledge and other than the existing first mortgage with
Countrywide Commercial Real Estate Finance, Inc. (“First Mortgage”), and
its successors and assigns, the Properties are free and clear of any and all
liens, security interests, encumbrances, adverse
claims, suits or proceedings at law or in equity.
(f) To
the best of its knowledge, the Properties and the uses thereof comply with all
legal requirements. The Properties have all necessary certificates,
licenses and other approvals, governmental and otherwise, and all required
zoning (including, without limitation, all parking requirements thereunder),
building code, land use, environmental and other similar permits or approvals
(collectively, the “Licenses”), including
certificates of completion and certificates of occupancy, necessary for the
operation of the Properties for its current and intended uses and for the
conduct of the Owner’s business and all such Licenses have been paid for and
remain in full force and effect.
(g) To
the best of its knowledge, the Properties are free from damage by
casualty. No condemnation or other proceeding has been commenced with
respect to all or any portion of the Properties or for any easements or public
right-of-ways. There are no pending or proposed special or other
assessments for public improvements affecting the Properties, nor are there any
contemplated improvements to the Properties that may result in such special or
other assessments.
(h) To
the best of its knowledge, all property taxes or other charges or fees required
to be paid by any person for the Properties that are due and owing have been
paid.
(i) To
the best of its knowledge, all required insurance coverages, amounts and other
requirements set forth in the First Mortgage remain in full force and effect and
there have been no acts or omissions that would impair the coverage of any
insurance policies or the benefits of the intended beneficiaries.
4. General
Provisions.
(a) Further
Assurances. Each party to this Agreement, at any time and from
time to time upon the reasonable request of another party to this Agreement,
shall promptly execute and deliver, or cause to be executed and delivered, all
such further instruments and take all such further actions as may be reasonably
necessary or appropriate to confirm or carry out the purposes and intent of this
Agreement.
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(b) Assignment. Neither
this Agreement nor any of the rights or obligations hereunder shall be assigned
by any party hereto without the prior written consent of the other
parties. Subject to the preceding sentence, this Agreement will be
binding upon, inure to the benefit of and be enforceable by the parties and
their respective successors and permitted assigns.
(c) Governing
Law. This Agreement shall be governed by and construed and
interpreted in accordance with the substantive laws of the State of New York,
without giving effect to any choice of law or conflicts of law provision or rule
that would cause the application of the laws of a jurisdiction other than New
York.
(d) Severability. The
provisions of this Agreement shall be deemed severable and the invalidity or
unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof. If any provision of
this Agreement, or the application thereof to any person or entity or any
circumstance, is found to be invalid or unenforceable in any jurisdiction, (i) a
suitable and equitable provision shall be substituted therefor in order to carry
out, so far as may be valid and enforceable, the intent and purpose of such
invalid or unenforceable provision and (ii) the remainder of this Agreement and
the application of such provision to other persons, entities or circumstances
shall not be affected by such invalidity or unenforceability, nor shall such
invalidity or unenforceability affect the validity or enforceability of such
provision, or the application thereof, in any other jurisdiction.
(e) Counterparts. This
Agreement may be executed (including by facsimile transmission) with counterpart
pages or in one or more counterparts, each of which shall be deemed an original
and all of which shall, taken together, be considered one and the same
agreement, it being understood that both parties need not sign the same
counterpart.
(f) Amendment;
Waiver. No provision of this Agreement may be amended unless
such amendment is approved in writing by the parties hereto. No
provision of this Agreement may be waived unless such waiver is in writing and
signed by the party against whom the waiver is to be effective.
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, the parties hereto have cause this Agreement to be executed as
of the day and year first above written.
| LIGHTSTONE VALUE PLUS REIT II LP | |||
|
|
By:
|
LIGHTSTONE
VALUE PLUS REAL
ESTATE
INVESTMENT TRUST II, INC.,
a
Maryland corporation, its General Partner
|
|
| By: | /s/ Xxxxx Xxxxxxx | ||
| Name: Xxxxx Xxxxxxx | |||
| Title: Chief Financial Officer | |||
|
LIGHTSTONE
HOLDINGS, LLC, a Delaware
limited
liability company
|
|||
| By: | /s/ Xxxxx Xxxxxxxxxxxx | ||
| Name: Xxxxx Xxxxxxxxxxxx | |||
| Title: Managing Member | |||
