CONTRIBUTION AGREEMENT
This
Contribution Agreement (this “Agreement”) is
entered into as of June ___, 2010, and effective as of April 1, 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 is the chief
executive officer of Lightstone Value Plus Real Estate Investment Trust II,
Inc., a Maryland corporation (the “REIT”), the general partner of REIT
OP;
WHEREAS, the Company owns a 50.5%
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, REIT OP and Lightstone SLP II LLC (“Lightstone SLP”)
entered into that certain Third Amended and Restated Agreement, dated as of
January, 30, 2010, in 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, Xxxxxxxxxxxx, as the managing
member of the Company, desires to satisfy the Xxxxxxxxxxxx Funding Requirement
and directs the Company to contribute to the REIT OP 51.98% (equaling to 26.25%
interest) in the Owner;
WHEREAS,
as consideration for the Contributed Interest in the Owner, the REIT OP shall
contribute to Lightstone SLP operating partnership units in the REIT OP worth
[$2,500,000.00] (the “Contribution
Amount”).
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. Contribution of the
Contribution Amount. As of the date hereof, the REIT OP hereby
contributes the Contribution Amount to Lightstone SLP in exchange for the
contribution of the Contributed Interest in the Owner by the Company to the REIT
OP. The contribution of the Contribution Amount shall be deemed a
$2,500,000.00 capital contribution by the REIT OP to Lightstone SLP in exchange
for 51.98% (equaling to 26.25% interest) in the Owner and shall be credited as
such to a capital account established for the REIT OP on the books of Lightstone
SLP.
2. Representations and
Warranties of the REIT. The REIT represents and warrants to
the Company that:
(a) The REIT
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 of this Agreement, and the
consummation of the transactions contemplated hereby, are within the corporate
powers of the REIT and have been duly authorized by all necessary corporate
action on the part of the REIT. This Agreement constitutes the valid
and binding agreement of the REIT.
(c) The
execution, delivery and performance by the REIT of this Agreement, and the
consummation of the transactions contemplated hereby, do not (i) violate the
articles of incorporation or bylaws of the REIT; or (ii) contravene or conflict
with, or constitute a violation of, any material applicable law in any material
respect.
(d) The
Contribution Amount 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 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.
(d) The
26.25% membership interest in the Owner to be received by the REIT OP will upon
issuance be duly issued, non-assignable and 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., 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,.
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.
(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]
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
|
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By:
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| Name: Xxxxx Xxxxxxxxxxxx | |||
| Title: Chief Executive Officer | |||
| LIGHTSTONE HOLDINGS, LLC, a Delaware limited liability company | |||
|
By:
|
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| Name: Xxxxx Xxxxxxxxxxxx | |||
| Title: Managing Member | |||
