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Exhibit 2.4
AGREEMENT FOR CONTRIBUTION OF INTERESTS
IN
M330 ASSOCIATES
BY AND AMONG
THE MENDIK COMPANY, L.P.,
THE PARTNERS IN M330 ASSOCIATES
AND
THE MENDIK PARTNERSHIP, L.P.
IN RELIANCE UPON CERTAIN EXEMPTIONS FROM REGISTRATION, THE UNITS TO BE ISSUED
HEREUNDER WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. ACCORDINGLY, NO UNITS MAY
BE SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED UNLESS SUBSEQUENTLY
REGISTERED UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR
UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE, AND UNLESS THE OTHER
TRANSFER RESTRICTIONS ON SUCH UNITS HAVE BEEN SATISFIED. CONTRIBUTORS SHOULD BE
AWARE THAT THEY WILL BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THEIR OWNERSHIP
OF UNITS FOR AN INDEFINITE PERIOD OF TIME.
IN MAKING AN INVESTMENT DECISION CONTRIBUTORS MUST RELY ON THEIR OWN EXAMINATION
OF THE PERSON OR ENTITY CREATING THE SECURITIES AND THE TERMS OF THE OFFERING,
INCLUDING THE MERITS AND RISKS INVOLVED. THESE SECURITIES HAVE NOT BEEN
RECOMMENDED BY ANY FEDERAL OR STATE SECURITIES COMMISSION OR REGULATORY
AUTHORITY. FURTHERMORE, THE FOREGOING AUTHORITIES HAVE NOT CONFIRMED THE
ACCURACY OR DETERMINED THE ADEQUACY OF THIS DOCUMENT. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
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TABLE OF CONTENTS
Page
1. Contributions.......................................................... 2
2. Consideration; Distributions Prior to Closing.......................... 2
3. Acceptance of Contributions............................................ 5
4. Closing Time and Place................................................. 6
5. Representations and Warranties of Operating Partnership................ 6
5.1 Organization, Power and Authority, and Qualification .............. 6
5.2 Authority Relative to this Agreement .............................. 6
5.3 Binding Obligation ................................................ 7
5.4 Insolvency ........................................................ 7
5.5 Brokers ........................................................... 7
5.6 Valid Consideration ............................................... 7
6. Representations, Warranties and Agreements of Contributors............. 7
6.1 Title; Authority to Assign ........................................ 7
6.2 No Breach of Partnership Agreement ................................ 7
6.3 Insolvency ........................................................ 8
6.4 Litigation ........................................................ 8
6.5 Binding Obligation, etc. .......................................... 8
6.6 Brokers ........................................................... 8
6.7 Securities Act and Other Representations and Agreements ........... 8
7. Conditions to Completion............................................... 11
7.1 Representations, Warranties and Covenants ......................... 11
7.2 Consents .......................................................... 11
7.3 No Order or Injunction ............................................ 11
7.4 Instruments of Conveyance ......................................... 11
8. The Closing............................................................ 11
8.1 Contributors' and General Partner's Closing Documents ............. 11
8.2 Operating Partnership's Closing Documents ......................... 12
9. Closing Costs.......................................................... 12
10. Operation in the Ordinary Course....................................... 12
11. General Provisions..................................................... 13
11.1 Survival of Representations and Warranties ....................... 13
11.2 Notices .......................................................... 13
11.3 Governing Law .................................................... 13
11.4 Headings ......................................................... 13
11.5 Benefit and Assignment ........................................... 13
11.6 Severability ..................................................... 14
11.7 Entire Agreement; Amendment ...................................... 14
11.8 No Waiver ........................................................ 14
11.9 Consent and Power of Attorney .................................... 14
Exhibit A List of Partners
Exhibit B Committed Capital Expenditures
Exhibit C Contingent Leasing Expenditures
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AGREEMENT FOR CONTRIBUTION OF INTERESTS
[330 MADISON AVENUE]
THIS AGREEMENT for the Contribution of Interests (this
"Agreement") is made and entered into as of April 15, 1997, by and among The
Mendik Company, L.P. ("Operating Partnership"), a Delaware limited partnership,
whose general partner as of the date hereof is The Mendik Company, Inc., a
Maryland corporation, each of the parties listed on Exhibit A annexed hereto who
executes a Partner Consent (hereinafter defined) agreeing to become a party to
this Agreement (collectively referred to herein as "Contributors") and The
Mendik Partnership, L.P. (formerly known as The Mendik Company, L.P.) (in its
capacity as a general partner of the Partnership (hereinafter defined), the
"General Partner").
WHEREAS, it is desired to consolidate (the "Consolidation")
the assets of Vornado Realty Trust, a Maryland real estate investment trust (the
"REIT"), and interests in seven general or limited partnerships or limited
liability companies of which the General Partner or an affiliate is a general
partner or managing member, together with the assets of Mendik Realty Company,
Inc. and Mendik Management Company, Inc., each a New York corporation and an
affiliate of the General Partner, with and into Operating Partnership.
WHEREAS, upon completion of and after the Consolidation, the
REIT will become and be the managing general partner of the Operating
Partnership;
WHEREAS, Contributors are owners of interests in M330
Associates, a New York limited partnership (the "Partnership"), which is a
general partner in 330 Madison Company, a New York general partnership ("330
Madison"), which owns land and improvements (the "Property") known as 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx;
WHEREAS, Contributors wish to transfer all of their interests
in the Partnership (excluding the transfer by the General Partner of a portion
of its interest as general partner of the Partnership equal to a 1% interest in
the Partnership and the obligations as managing general partner of the
Partnership, but including the General Partner's preference right to
distributions) (the interests to be assigned by Contributors being hereinafter
collectively referred to as the "Contributed Interests"); and
WHEREAS, in connection with the consummation of the
Consolidation, the parties hereto desire that Operating Partnership and, if
designated by Operating Partnership, one or more special purpose subsidiary
partnerships or limited liability companies of Operating Partnership or one or
more other entities controlled by Operating Partnership (each a "Designated
Subsidiary") acquire all of the interests in the Partnership through the
contribution of such interests to Operating Partnership and/or one or more
Designated Subsidiaries upon the terms and conditions provided herein.
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NOW, THEREFORE, in consideration of the foregoing and the
mutual promises and covenants set forth herein, Operating Partnership,
Contributors and the General Partner hereby agree as follows:
1. Contributions. Upon the Closing (hereinafter defined), and
subject to the satisfaction or waiver by Operating Partnership of the conditions
set forth in Section 7 of this Agreement, Contributors shall contribute, convey
and assign to Operating Partnership (and/or Designated Subsidiary) and Operating
Partnership (and/or Designated Subsidiary) shall acquire from Contributors all
of Contributors' right, title and interest in the Contributed Interests (the
"Contributions"), including, without limitation, all of Contributors' interest
in the profits, losses, property and capital of the Partnership allocable to the
Contributed Interests, upon the terms and conditions set forth in this
Agreement.
2. Consideration; Distributions Prior to Closing.
(a) In full consideration for the contribution of the
Contributed Interests, Operating Partnership shall deliver to Contributors (or
their designees as provided below) at the Closing, with respect to the Exchange
Value (as such term is defined in the Confidential Solicitation of Consents and
Private Placement Memorandum (the "Memorandum") dated March 29, 1997) for the
Property, an aggregate of 207,688 units of limited partnership interests
("Units") in the Operating Partnership, such Units being allocated among the
Contributors as set forth on Exhibit A, subject to adjustment as provided in
Section 2(b) hereof.
Prior to the Closing, subject to compliance with all
applicable securities laws, any Contributor that is a partnership may give
notice to the Operating Partnership to allocate all or a portion of the Units
otherwise issuable to it among its partners in a manner set forth in the notice
and to issue the Units directly to those partners, and any Contributor who holds
interests in which another person or entity has a beneficial interest may give
notice to the Operating Partnership to issue all or a portion of the Units
otherwise issuable to that Contributor to the beneficial owner of that interest.
In such event, as a condition to receiving any Units, any such partners of any
Contributor or any such beneficial holder shall execute a Partner Consent (the
"Partner Consent") in the form annexed to and made part of the Memorandum and
shall make to the Operating Partnership the representations and warranties and
agreements in Section 6.7(a), (b), (c) and (d) pursuant to an instrument
reasonably satisfactory to the Operating Partnership (in addition to the Partner
Consent to be executed by the Contributor).
(b) If the aggregate amount of the Net Other Assets
(hereinafter defined) of 330 Madison as of the close of business on the day
preceding the date of the Closing (the "Closing Date") exceeds $6,036,000,
Operating Partnership shall issue additional Units (valued at the average of the
closing prices on the New York Stock Exchange of shares of the REIT for the last
ten trading days ending on the third trading day prior to the Closing Date) with
a value equal to 24.75% of such excess Net Other Assets, and such additional
Units shall be issued to each Contributor in the same proportion as the Units
will be issued in accordance with Exhibit A.
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If the aggregate amount of the Net Other Assets of 330 Madison
as of the close of business on the day preceding the Closing Date is less than
$6,036,000, then, notwithstanding the provisions of Section 2(e) hereof, the
Contributors shall cause the Partnership to have cash at Closing in an amount
equal to 25% of the amount by which the Net Other Assets are less than
$6,036,000.
As used in this Agreement, the following terms have the
following meanings:
(i) "Net Other Assets" means the excess of Certain
Other Assets over Certain Other Liabilities (as such terms are hereinafter
defined).
(ii) "Certain Other Assets" means cash and cash
equivalents (other than any condemnation or casualty proceeds held by 330
Madison), marketable securities, accounts receivable (including an estimate of
any rent escalations payable by tenants with respect to the period through the
Closing Date, but excluding any amounts payable by tenants with respect to any
period after the Closing Date, as well as any amount payable by tenants after
the Closing Date to the extent such amount has been recognized as income prior
to the Closing), prepaid expenses (excluding any prepaid leasing costs relating
to leases entered into prior to October 1, 1996), escrow deposits made by 330
Madison, capital expenditures (other than tenant improvements or building
improvements required by the terms of any lease and other than those committed
capital expenditures listed on Exhibit B annexed hereto) made on or after
October 1, 1996, amounts paid for leasing costs, tenant and building
improvements or tenant acquisition costs relating to (1) leases entered into on
or after October 1, 1996 and (2) leases entered into prior to October 1, 1996,
but only to the extent of any leasing expenditures with respect to such leases
entered into prior to October 1, 1996 which are set forth on Exhibit C annexed
hereto. For the purpose of calculating Certain Other Assets, the accounts
receivable of 330 Madison shall be valued at the face amount of the accounts
receivable, net of a reserve for doubtful accounts determined in accordance with
generally accepted accounting principles consistently applied, and without
giving effect to the straight-line requirement of FASB 13.
(iii) "Certain Other Liabilities" means accounts payable,
accrued interest from and after October 1, 1996 (which has been capitalized) and
any other accrued interest payable and any other accrued liabilities (including
any liability or obligation for leasing costs, tenant or building improvements
or tenant acquisition costs payable relating to leases entered into prior to
October 1, 1996 but excluding any liability or obligation for leasing costs,
tenant or building improvements or tenant acquisition costs payable relating to
(1) leases entered into on or after October 1, 1996 and (2) leases entered into
prior to October 1, 1996, but only to the extent of any leasing expenditures
with respect to such leases entered into prior to October 1, 1996 which are set
forth on Exhibit C annexed hereto), the unpaid remaining cost of any committed
capital expenditures listed on Exhibit B annexed hereto and prepaid rent
received from tenants.
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For purposes of this Section 2, the exercise of an option to
renew a lease or to rent additional space pursuant to a lease shall be deemed a
new lease entered into on the effective date of the renewal option.
(c) The General Partner shall prepare and submit to the REIT,
not later than five days prior to the Closing Date, its best, good faith
estimate of the Net Other Assets as of the close of business on the day
preceding the Closing Date; such estimate shall be determined based upon the
books and records of 330 Madison. The estimate submitted to the REIT shall be
accompanied by (i) a statement setting forth in reasonable detail the
calculation of the estimated Net Other Assets as of the close of business on the
day preceding the Closing Date, and (ii) a certificate signed by the General
Partner confirming that the estimate was calculated in accordance with the terms
of this Section 2. The estimate shall be final and binding on the parties
unless, at least two days prior to the Closing, the REIT gives written notice to
the General Partner that it objects to any item. The REIT and the General
Partner shall immediately consult with respect to any item objected to and their
joint determination with respect to any items in dispute shall be final and
binding on the parties. The number of additional Units to be delivered at
Closing shall be based on the statement of Net Other Assets delivered by the
General Partner if there is no objection thereto by the REIT (or the undisputed
amount of Net Other Assets if there is such an objection) and additional Units,
if any, shall be delivered to the General Partner, as agent for the
Contributors, promptly after the accountants' determination referred to in the
next sentence, it being understood that the Contributors shall be deemed to own
such additional Units, if any, as of the Closing Date. If the REIT and the
General Partner are unable to reach agreement on the amount of Net Other Assets
prior to Closing, within ten days after the Closing, the dispute shall be
referred to and resolved by a "Big 6" firm of independent certified public
accountants proposed by the REIT and reasonably acceptable to the General
Partner, and the determination by that accounting firm shall be final and
binding on the parties. The fees and expenses of the accounting firm shall be
borne by Operating Partnership.
(d) An amount equal to any amounts received by the Partnership
after the Closing Date relating to the period through the Closing Date with
respect to refunds of real estate taxes paid by 330 Madison (after deduction of
any costs incurred by 330 Madison, the Partnership or the Operating Partnership
in obtaining such refunds and less any portion of such refunds required or, in
the REIT's reasonable determination, estimated to be required to be paid to
tenants) shall be paid to the General Partner, as agent for the Contributors and
certain other persons, not later than 10 days after the end of the month in
which such amounts are received, and the General Partner shall promptly
distribute such amounts to the Contributors.
(e) On the Closing Date, the General Partner shall cause the
Partnership to satisfy any outstanding liabilities and to distribute all
remaining cash to its partners.
(f) A dispute currently exists between 330 Madison and Bank of
Credit and Commerce International S.A. (in Compulsory Liquidation) ("BCCI") as
to the outstanding principal amount of 330 Madison's indebtedness to BCCI (the
"BCCI Indebtedness"). At the Closing, the General Partner and the REIT shall
agree upon the amount of the BCCI Indebtedness as asserted by BCCI, the amount
as asserted by 330 Madison and therefore the amount in dispute
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as of the Closing Date (the "Closing Disputed Amount"). At such time as BCCI and
330 Madison agree on the amount to be paid to satisfy the BCCI Indebtedness (or
that amount is finally determined by a court or arbitrator) (the "BCCI Payment
Amount"), the REIT and the General Partner shall agree upon the amount of the
BCCI Indebtedness at that time as asserted by BCCI (the "BCCI Asserted Amount")
and as asserted by 330 Madison, and the difference between those amounts (the
"Pay-Off Time Disputed Amount"). Promptly after the BCCI Indebtedness is repaid,
the Operating Partnership shall issue to the Contributors, in proportion to
their interests in the Partnership, an aggregate number of additional Units
(valued at the average of the closing price on the New York Stock Exchange of
common shares of the REIT for the last ten trading days ending three trading
days prior to the date of the BCCI payment) with a value equal to the product of
(1) 24.75%, times (2) the excess of the BCCI Asserted Amount over the BCCI
Payment Amount, times (3) a fraction of which the numerator is the Closing
Disputed Amount and the denominator is the Pay-Off Time Disputed Amount.
(g) If the Operating Partnership (and/or Designated
Subsidiary) acquires any interests in the Partnership, other than interests
acquired from Contributors, which causes the Contributors to owe any tax payable
as a result of the New York Real Estate Transfer Tax imposed by Article 31 of
the Tax Law, the New York City Real Property Transfer Tax imposed by Chapter 46
of Title 11 of the Administrative Code of the City of New York, or any other
similar tax payable by reason of the contribution of the Contributed Interests
(collectively, the "Conveyance Taxes"), the Operating Partnership agrees to pay
and shall be solely responsible for such Conveyance Taxes; provided, however,
that the Contributors shall be solely responsible for and shall indemnify,
defend and hold harmless Operating Partnership and the Partnership from and
against all claims, liabilities, costs and expenses (including attorney's fees)
incurred by Operating Partnership and the Partnership by reason of the failure
of the Contributor to pay any Conveyance Taxes that would not have been imposed
but for a Contributor's failure to satisfy any holding period or continuity
requirements for qualifying for a reduced rate of Conveyance Taxes, including
the holding period requirements with respect to certain transfers to a REIT
imposed in connection with the New York Real Estate Transfer Tax imposed by
Article 31 of the Tax Law and the New York City Real Property Transfer Tax
imposed by Chapter 46 of Title 11 of the Administrative Code of the City of New
York.
3. Acceptance of Contributions. Subject to satisfaction of the
conditions listed or referred to in Section 7, Operating Partnership hereby
agrees that at the Closing it shall accept or, at its election, cause a
Designated Subsidiary to accept all or part of, the Contributions and shall
assume any and all rights, obligations and responsibilities of Contributors as
owners of the Contributed Interests that arise subsequent to the Closing Date.
4. Closing Time and Place. Unless another date or place is agreed
to by the parties, the closing of the Contributions (the "Closing") shall take
place contemporaneously with the closing of the Consolidation at the offices of
Proskauer Xxxx Xxxxx & Xxxxxxxxxx LLP, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
or such other place and time as Operating Partnership and the General Partner
shall agree, upon the satisfaction or waiver of all conditions to the Closing
set forth in Section 7 hereof.
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5. Representations and Warranties of Operating Partnership.
Operating Partnership hereby represents and warrants to Contributors as follows,
which representations and warranties shall be true and correct on the Closing
Date:
5.1 Organization, Power and Authority, and Qualification.
Operating Partnership is a limited partnership duly organized, validly existing
and in good standing under the laws of the State of Delaware. The REIT is a real
estate investment trust duly organized, validly existing and in good standing
under the laws of the State of Maryland. Each of Operating Partnership and the
REIT has the requisite power and authority to carry on its respective business
as it is now being conducted. Each of Operating Partnership and the REIT is
qualified to do business and is in good standing in each jurisdiction in which
the character of its property owned or leased or the nature of its activities
makes such qualification necessary, except where the failure to be so qualified
and in good standing would not have a material adverse effect on the business or
financial condition of Operating Partnership or the REIT, as the case may be.
5.2 Authority Relative to this Agreement. Operating Partnership
has taken all action necessary to authorize the execution, delivery and
performance of this Agreement by Operating Partnership and no other proceedings
on the part of Operating Partnership are necessary to authorize the execution
and delivery of this Agreement and the consummation of the Contributions.
None of the execution and delivery of this Agreement by Operating
Partnership, the consummation by Operating Partnership of the Contributions or
compliance by Operating Partnership with any of the provisions hereof shall (i)
conflict with or result in any breach of any provisions of the partnership
agreement of Operating Partnership; (ii) result in a violation or breach of, or
constitute (with or without due notice or lapse of time or both) a default (or
give rise to any right of termination, cancellation or acceleration) under any
of the terms, conditions or provisions of any note, bond, mortgage, indenture,
lease, license, contract, agreement or other instrument or obligation to which
Operating Partnership is a party or by which it or any of its properties or
assets may be bound; or (iii) violate any order, writ, injunction, decree,
statute, rule or regulation applicable to Operating Partnership; except in the
case of (ii) or (iii) for violations, breaches, or defaults (A) that would not
in the aggregate have a material adverse effect on the business or financial
condition of Operating Partnership or the REIT, and that shall not impair the
effectiveness of the Contributions contemplated hereby, or (B) for which waivers
or consents have been or shall be obtained prior to the Closing Date.
5.3 Binding Obligation. This Agreement has been duly and validly
executed and delivered by Operating Partnership and constitutes a valid and
binding agreement of Operating Partnership, enforceable against Operating
Partnership in accordance with its terms, except that such enforcement may be
subject to bankruptcy, conservatorship, receivership, insolvency, moratorium, or
similar laws affecting creditors' rights generally or the rights of creditors of
limited partnerships and to general principles of equity.
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5.4 Insolvency. There are no attachments, executions or
assignments for the benefit of creditors, or voluntary or involuntary
proceedings in bankruptcy, or under any other debtor relief laws, contemplated
by or pending or threatened against Operating Partnership.
5.5 Brokers. Neither Operating Partnership nor the REIT has
employed or dealt with any broker or finder, or incurred any liability therefor,
in connection with the Contributions.
5.6 Valid Consideration. The Units, when issued in accordance with
this Agreement and the Partnership Agreement of Operating Partnership, will be
duly and validly issued, and the issuance thereof will not be subject to
preemptive or other similar rights.
6. Representations, Warranties and Agreements of Contributors.
Each Contributor, in his, her or its capacity as a partner of the Partnership,
hereby represents and warrants to and agrees with Operating Partnership with
respect to his, her or its Contributed Interests as follows, which
representations and warranties shall also be true and correct on the Closing
Date:
6.1 Title; Authority to Assign. Contributor (i) owns good and
marketable, legal and beneficial (except for holders of beneficial interests in
the amounts payable with respect to such Contributed Interests who have no other
rights with respect to those interests) title in and to his, her or its
Contributed Interests which as of the Closing Date will be held free of any
liens, encumbrances, judgments, adverse interests, pledges or security
interests, other than pledges of partnership interests to the Partnership or the
other partners to secure a partner's obligations to meet capital calls or other
obligations as set forth in the partnership agreement of the Partnership (as to
which no amounts are outstanding and no amounts will be outstanding as of the
Closing Date), (ii) holds the entire right, title and interest in and to his,
her or its Contributed Interests, and (iii) has the full right, power, capacity
and authority to validly contribute and convey his, her or its Contributed
Interests pursuant to this Agreement.
6.2 No Breach of Partnership Agreement. None of the execution and
delivery of this Agreement by Contributor, the consummation by Contributor of
the Contribution or compliance by Contributor with any of the provisions hereof
shall as of the Closing Date conflict with or result in any breach of any
provisions of the Partnership Agreement of the Partnership or any other
agreement to which Contributor is a party.
6.3 Insolvency. There are no attachments, executions or
assignments for the benefit of creditors, or voluntary or involuntary
proceedings in bankruptcy, or under any other debtor relief laws, contemplated
by or pending or, to the knowledge of Contributor, threatened against
Contributor.
6.4 Litigation. Contributor has no knowledge of any actual or
pending litigation or proceeding by any organization, person, individual or
governmental agency against Contributor with respect to or against or
potentially affecting his, her or its Contributed Interests.
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6.5 Binding Obligation, etc. This Agreement has been duly and
validly executed and delivered by Contributor to Operating Partnership and
constitutes a legal, valid and binding agreement of Contributor, enforceable
against Contributor in accordance with its terms, except as such enforcement may
be limited by bankruptcy, conservatorship, receivership, insolvency, moratorium
or similar laws affecting creditors' rights generally and to general principles
of equity. Contributor further represents and warrants that if Contributor is a
corporation, partnership, trust or other entity, it has the power to, and is
duly authorized and otherwise duly qualified to, purchase and hold securities
such as Units and Common Shares (as hereinafter defined) and such entity has its
principal place of business as set forth on Exhibit A.
6.6 Brokers. Contributor has not employed or dealt with any broker
or finder, or incurred any liability therefor, in connection with the
Contribution.
6.7 Securities Act and Other Representations and Agreements.
(a) (i) Upon the issuance of Units to Contributor (or a
designee as provided in Section 2), Contributor (or designee) shall become
subject to, and shall be bound by, the terms and provisions of the Partnership
Agreement of Operating Partnership, including the terms of the power of attorney
contained in Section 15.11 thereof, as the Partnership Agreement may be amended
and restated from time to time in accordance with its terms.
(ii) Contributor or his, her or its advisor(s) have
had a reasonable opportunity to ask questions of and receive information and
answers from a person or persons acting on behalf of the Partnership and
Operating Partnership concerning the Consolidation, and, as Contributor may deem
necessary, to verify the information contained in the Memorandum, receipt of
which is acknowledged, and any other information provided to Contributor by the
Partnership or Operating Partnership and all such questions have been answered
and all such information has been provided to the full satisfaction of
Contributor.
(iii) Contributor is acquiring Units for his, her or
its own account as principal, for investment and not with a view to resale or
distribution, and the Units may not be transferred or otherwise disposed of by
Contributor otherwise than in transactions pursuant to a registration statement
filed by the Operating Partnership (which it has no obligation to file) or that
are exempt from the registration requirements of the Securities Act of 1933, as
amended (the "Securities Act"), and all applicable state and foreign securities
laws, and the REIT may refuse to transfer any Units as to which evidence of such
registration or exemptions from such registration satisfactory to the REIT is
not provided to it, which evidence may include the requirement of legal opinions
regarding the exemption from such registration. If the REIT elects, in its sole
discretion, to deliver to any Contributor common shares of beneficial interest
of the REIT ("Common Shares") upon redemption of any Units, the Common Shares
will be acquired for his, her or its own account as principal, for investment
and not with a view to resale or distribution, and the Common Shares may not be
transferred or otherwise disposed of by Contributor otherwise than in
transactions pursuant to any registration statement filed by the REIT with
respect to such Common Shares (which it has an obligation to file only pursuant
to the Registration Rights Agreement described in the Memorandum) or that are
exempt from the registration requirements
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of the Securities Act and all applicable state and foreign securities laws, and
the REIT may refuse to transfer any Common Shares as to which evidence of such
registration or exemptions from such registration satisfactory to the REIT is
not provided to it, which evidence may include the requirement of legal opinions
regarding the exemption from such registration.
(iv) Contributor (either alone or with his, her or
its advisors) has sufficient knowledge and experience in financial, tax and
business matters to enable him, her or it to evaluate the merits and risks of an
investment in the Units. Contributor has the ability to bear the economic risk
of acquiring the Units. Contributor acknowledges that (1) the transactions
contemplated by this Agreement and the Memorandum involve complex tax
consequences for each Contributor and each Contributor is relying solely on the
advice of his, her or its own tax advisors in evaluating such consequences, and
(2) neither Operating Partnership nor the General Partner has made (or shall be
deemed to have made) any representations or warranties as to the tax
consequences of such transaction to any Contributor. Each Contributor remains
solely responsible for all tax matters relating to each Contributor.
(v) If needed, Contributor has discussed with his,
her or its professional, legal, tax or financial advisors the suitability of an
investment in Units or Common Shares for his, her or its particular tax and
financial situation. Nothing contained herein or in the Memorandum shall be
deemed to imply any representation by Operating Partnership or the General
Partner as to a particular tax effect that may be obtained by any Contributor.
(vi) All information that Contributor has provided
to Operating Partnership concerning himself or herself or itself and his, her or
its financial position is correct and complete as of the date hereof, and if
there should be any material change in such information prior to issuance of
Units to the Contributors, he, she or it shall immediately provide such changed
information to Operating Partnership.
(vii) Contributor has not disclosed any information
contained in the Memorandum to anyone other than his or her spouse or his, her
or its professional, legal, tax or financial advisors advising him, her or it in
connection with this investment and has not reproduced the Memorandum other than
such use by such advisors.
(b) Status as a United States Person. (i) Unless
otherwise indicated on the Partner Consent, Contributor certifies that
Contributor is not a foreign person within the meaning of Section 1445 of the
Internal Revenue Code ("Section 1445"). To the extent that Contributor is not a
foreign person within the meaning of Section 1445, (1) Contributor's U.S.
taxpayer identification number that has previously been provided to the
Partnership is accurate, (2) Contributor's home address (in the case of an
individual) or office address (in the case of an entity) is that address
indicated on Exhibit A of this Agreement and (3) if Contributor subsequently
becomes a foreign person within the meaning of Section 1445, Contributor shall
notify Operating Partnership prior to the Closing.
(ii) If Contributor is or prior to the Closing
becomes a foreign person within the meaning of Section 1445, Operating
Partnership shall, and is authorized to,
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withhold ten percent (10%) of the amount realized (as such term is defined in
Section 1001 of the Internal Revenue Code) by Contributor in connection with the
Contribution, unless Operating Partnership shall receive from Contributor a
notice of nonrecognition transfer with respect to the Contribution by
Contributor (in a form to be provided by Operating Partnership).
(c) Indemnification. Contributor hereby agrees to indemnify
and hold harmless the Partnership, the REIT, Operating Partnership, The Mendik
Company, Inc. and the General Partner and any of the employees, agents,
officers, directors and affiliated persons of the foregoing from any and all
damages, losses, costs and expenses (including reasonable attorneys' fees) which
they, or any of them, may incur by reason of a failure by Contributor to fulfill
any of its obligations under this Agreement or by reason of the breach by
Contributor of any of the representations and warranties contained herein.
(d) Waiver and Contribution. Contributor understands that (i)
the Units to be issued pursuant to the Consolidation have not been registered
under the Securities Act and (ii) the failure to register such Units could
result in Contributor being granted certain rights under the Federal securities
laws, including a right to rescind Contributor's consent to the Consolidation.
For the benefit of Operating Partnership, and in consideration of Operating
Partnership's consummating the Consolidation, Contributor (x) hereby waives any
and all rights he or she now has or may hereafter be granted to rescind his or
her consent to the Consolidation on the basis that the Units issued in
connection with the Consolidation were not registered (the "Waiver") and (y)
agrees that if the Waiver is deemed void or unenforceable for any reason,
including, without limitation, under Section 14 of the Securities Act, the
entire beneficial interest in all property and amounts received by Contributor
in any action to rescind the Consolidation (regardless of whether such action
was initiated by Contributor) or otherwise received by Contributor as damages
for failure to register the Units under the Securities Act, shall be promptly
paid over and contributed by Contributor to Operating Partnership, for no
additional consideration from Operating Partnership, other than the Units
originally issued pursuant to the Consolidation.
Whenever the context shall require, all words in the male,
female or neuter gender shall be deemed to include the other genders, all
singular words shall include the plural, and all plural words shall include the
singular. All representations, covenants and agreements of Contributor set forth
in this Agreement shall survive the consummation of the Consolidation
contemplated by the Memorandum.
7. Conditions to Completion. In addition to the conditions to
completion of the Consolidation set forth in the Memorandum, the obligations of
Operating Partnership to consummate the transactions contemplated by this
Agreement shall be subject to fulfillment (or waiver by Operating Partnership)
at or prior to the Closing of the following conditions:
7.1 Representations, Warranties and Covenants. The
representations, warranties and covenants made by Contributors in this Agreement
or in any document delivered by any of them pursuant to this Agreement shall be
true and correct in all material respects when
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made and on and as of the Closing as though such representations, warranties and
covenants were made on and as of such date.
7.2 Consents. Any and all consents required by the Partnership
Agreement of the Partnership, and any certificates, agreements, contribution and
assumption instruments and other documents necessary or advisable to evidence
the conveyance of the Contributed Interests and the admission of Operating
Partnership (or Designated Subsidiary) into the Partnership by virtue of the
contribution of the Contributed Interests, shall have been obtained.
7.3 No Order or Injunction. The consummation of the Contributions
shall not have been restrained, enjoined or prohibited by any order or
injunction of any court or governmental authority of competent jurisdiction.
7.4 Instruments of Conveyance. The Contributors shall have
delivered the instruments evidencing conveyance of their interests referred to
in Section 8.1.
8. The Closing.
8.1 Contributors' and General Partner's Closing Documents. At
Closing, each Contributor shall deliver (or cause to be delivered pursuant to
the Power of Attorney referred to in Section 11.9) or the General Partner shall
deliver the following (all of which shall be duly executed and acknowledged
where required):
(a) A written document of conveyance contributing to
Operating Partnership (and/or any Designated Subsidiary) title to Contributor's
Contributed Interests, free and clear of any adverse claim or interest;
(b) Such documents and certificates as Operating
Partnership reasonably may require to establish the authority of the parties
executing any documents in connection with the Contributions including, in the
case of any Contributor that is a corporation, partnership, limited liability
company or other similar entity (other than a trust or an estate), an opinion of
counsel, reasonably satisfactory to the Operating Partnership, as to the due
execution and delivery of such documents;
(c) Such consents and instruments of admission as are
contemplated by Section 7.2 hereof; and
(d) Such other documents, instruments and certificates as
Operating Partnership and the General Partner, as agent for the Contributors,
reasonably agree are necessary or appropriate, including without limitation
recording and transfer forms and affidavits.
8.2 Operating Partnership's Closing Documents. At Closing,
Operating Partnership shall deliver or cause to be delivered to the General
Partner, as agent for the Contributors, the following:
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(a) The Units referred to in Section 2(a);
(b) Copies of the executed Partnership Agreement of the
Operating Partnership and the Registration Rights Agreement and Unit Redemption
Agreement referred to in Section 11.09; and
(c) Such other documents and instruments as the General
Partner, as agent for the Contributors, and Operating Partnership agree are
necessary or appropriate, including without limitation recording and transfer
forms and affidavits.
9. Closing Costs. Operating Partnership shall pay or provide for
the payment of all costs associated with the closing of the contributions of the
Contributed Interests pursuant to this Agreement, as described in and subject to
the terms of the Memorandum.
10. Operation in the Ordinary Course. The General Partner shall
use reasonable efforts to operate the Partnership and the Property in the
ordinary course of business between the date hereof and the closing of the
Consolidation, including making any necessary capital expenditures and leasing
expenditures consistent with past practices to maintain the quality and value of
the Property.
11. General Provisions.
11.1 Survival of Representations and Warranties. It is the express
intention and agreement of the parties hereto that the representations and
warranties of the parties set forth in this Agreement shall survive the
consummation of the Contributions and the Closing.
11.2 Notices. All notices, demands, requests or other
communications that may be or are required to be given or made by any party to
the other parties pursuant to this Agreement shall be in writing and shall be
hand delivered or transmitted by certified mail, express overnight mail or
delivery service, telegram, telex or facsimile transmission to the parties at
the addresses specified in Exhibit A or such other address as the addressee may
indicate by written notice to the other party.
Each notice, demand, request or communication that is given or made in
the manner described above shall be deemed sufficiently given or made for all
purposes at such time as it is delivered to the addressee (with the delivery
receipt, the affidavit of messenger or (with respect to a telex) the answer back
being deemed conclusive but not exclusive evidence of such delivery) or at such
time as delivery is refused by the addressee upon presentation.
11.3 Governing Law. This Agreement, the rights and obligations of
the parties hereto and any claims or disputes relating to such rights and
obligations shall be governed by and construed under the laws of the State of
New York.
11.4 Headings. Section and subsection headings contained in this
Agreement are inserted for convenience of reference only, shall not be deemed to
be a part of this Agreement
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for any purpose, and shall not in any way define or affect the meaning,
construction or scope of any of the provisions hereof.
11.5 Benefit and Assignment. No Contributor shall assign this
Agreement, in whole or in part, whether by operation of law or otherwise,
without the prior written consent of Operating Partnership. Any purported
assignment contrary to the terms hereof shall be null, void and of no force and
effect.
This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and assigns as permitted
hereunder. No person or entity other than the parties hereto is or shall be
entitled to bring any action to enforce any provision of this Agreement against
any of the parties hereto, and the covenants and agreements set forth in this
Agreement shall be solely for the benefit of, and shall be enforceable only by,
the parties hereto or their respective successors and assigns as permitted
hereunder.
The Operating Partnership may designate one or more Designated
Subsidiaries to acquire all or any part of the Contributed Interests (in which
case the Designated Subsidiary shall execute a certificate at closing making the
same representations and warranties as are made by Operating Partnership and
references to Operating Partnership shall include the Designated Subsidiaries
except where the context clearly indicates otherwise).
11.6 Severability. If any part of any provision of this Agreement
or any other agreement, document or writing given pursuant to or in connection
with this Agreement shall be invalid or unenforceable under applicable law, such
part shall be ineffective to the extent of such invalidity or unenforceability
only, without in any way affecting the remaining parts of such provisions or the
remaining provisions of said agreement so long as the economic and legal
substance of the Contributions is not affected in any manner materially adverse
to either party.
11.7 Entire Agreement; Amendment. The Schedules and the Exhibits
attached hereto are hereby incorporated into the Agreement as if fully set forth
herein. This Agreement, and the Schedules and Exhibits attached hereto, together
with the Memorandum, contain the final and entire agreement between the parties
hereto with respect to the Contributions, supersede all prior oral and written
memoranda and agreements with respect to the matters contemplated herein, and
are intended to be an integration of all prior negotiations and understandings.
Contributors and Operating Partnership shall not be bound by any terms,
conditions, statements, warranties or representations, oral or written, not
contained or referred to herein or therein. No change or modification of this
Agreement shall be valid unless the same is in writing and signed by the parties
hereto.
11.8 No Waiver. No delay or failure on the part of any party hereto
in exercising any right, power or privilege under this Agreement or under any
other instrument or document given in connection with or pursuant to this
Agreement shall impair any such right, power or privilege or be construed as a
waiver of any default or any acquiescence therein. No single or partial exercise
of any such right, power or privilege shall preclude the further exercise of
such right, power or privilege. No waiver shall be valid against any party
hereto unless made in
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writing and signed by the party against whom enforcement of such waiver is
sought and then only to the extent expressly specified therein.
11.9 Consent and Power of Attorney. The General Partner hereby
consents to the contribution of the Contributed Interests pursuant hereto by
each of the Contributors. Each Contributor is executing a Partner Consent
pursuant to which such Contributor (a) is executing this Agreement, and (b) is
consenting to each matter set forth therein. In addition, by executing this
Agreement pursuant to the Consent, each Contributor is constituting and
appointing each of Xxxxx X. Xxxxxxxxx, Xxxx X. Xxxxxxxxxxx and Xxxxxxxxxxx X.
Xxxx, individually, with full power of substitution, the true and lawful
attorney-in-fact (the "Attorney") of such Contributor, with full power and
authority in the name of and for and on behalf of such Contributor, to execute
an instrument of conveyance contributing his, her or its Contributed Interests
to Operating Partnership pursuant to the Consolidation on the terms set forth in
the Memorandum, to execute the Partnership Agreement of Operating Partnership
and the Registration Rights Agreement and a Unit Redemption Agreement (if the
Contributor elects to redeem its Units for cash immediately after the Closing)
and to execute any other instruments that the General Partner reasonably
determines necessary or appropriate in connection with the contribution of the
Contributed Interests pursuant to this Agreement and the consummation of the
Consolidation.
Each Contributor shall promptly notify the General Partner if any of
the representations and warranties by that partner were not true and correct
when made or become untrue at any time prior to the Closing.
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IN WITNESS WHEREOF, each of the Contributors has executed a separate
Partner Consent agreeing to be bound by the terms of this Agreement and each of
Operating Partnership, and the General Partner has caused this Agreement to be
duly executed and delivered on its or his behalf as of the date first above
written.
THE MENDIK COMPANY, L.P.
By: The Mendik Company, Inc., general partner
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: President
THE MENDIK PARTNERSHIP, L.P.
By: Mendik Realty Company, Inc., general partner
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: President
[ADDITIONAL SIGNATURES OMITTED]
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M 330 Associates
Exhibit A
List of Partners
Number
of Units
--------
Madby Associates 2,700
c/o Xxxxxxx Vespa
Xxxxxxxxxxx & Xxxxxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Knatten, Inc. 51,282
c/o Weissbarth, Xxxxxx & Xxxxxxxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx X. Xxxxxxx 8,097
00000 Xxxxx Xxxxxx Xxxx.
Xxx Xxxxxxx, XX 00000
Xxxxxx X. Xxxxxxx, as Trustee 8,097
00000 Xxxxx Xxxxxx Xxxx.
Xxx Xxxxxxx, XX 00000
Xxxxxxx X. Xxxxxx 6,408
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
The Mendik Partnership, L.P. 131,104
000 Xxxxxxx Xxxxxx -------
Xxx Xxxx, XX 00000
207,688
19
Exhibit B
Committed Capital Expenditures
NONE
20
Exhibit C
Contingent Leasing Expenditures
Xxxxxxx & Xxxxxxx $ 173,290
Xxxx Xxxxxx 948,400
Tukiye Ziraat Bank 86,570
TOTAL $1,208,260