1
Exhibit 10.12
CONTRIBUTION AGREEMENT
(OP Units--CXX Mineola Limted Partnership from prior
owners of Stellar Associates)
BY AND AMONG
TOWER REALTY OPERATING PARTNERSHIP, L.P.
AND
XXXXXXX XXXXXXX
Dated as of April 24, 1997
2
TABLE OF CONTENTS
PAGE
ARTICLE I
CONTRIBUTION OF INTEREST AND EXCHANGE FOR OP UNITS.................. 1
1.1 Contribution Transaction................................................ 1
1.2 Exchange of OP Units.................................................... 2
1.3 Contribution of Certain Rights.......................................... 2
1.4 Treatment as Contribution............................................... 2
1.5 Additional Documents.................................................... 2
ARTICLE II
CLOSING................................. 2
2.1 Conditions Precedent.................................................... 2
2.3 Closing Deliveries...................................................... 3
2.4 Closing Costs........................................................... 4
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE CONTRIBUTOR.......................... 4
3.1 Title to Interest....................................................... 4
3.2 Organization; Authority; No Conflicts................................... 5
3.3 Litigation.............................................................. 6
3.4 No Other Agreements..................................................... 6
3.5 No Brokers.............................................................. 6
3.6 Investment Representations and Warranties............................... 7
3.7 Covenant to Remedy Breaches............................................. 9
3.8 Actions Prior to Closing................................................ 9
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE OPERATING PARTNERSHIP...................... 9
4.1 Authority............................................................... 9
-i-
3
PAGE
4.2 No Brokers.............................................................. 10
ARTICLE V
POWER OF ATTORNEY........................... 11
5.1 Grant of Power of Attorney.............................................. 11
5.2 Limitation on Liability................................................. 11
ARTICLE VI
MISCELLANEOUS.............................. 12
6.1 Amendment............................................................... 12
6.2 Entire Agreement; Counterparts; Applicable Law.......................... 12
6.3 Assignability........................................................... 12
6.4 Titles.................................................................. 13
6.5 Third Party Beneficiary................................................. 13
6.6 Severability............................................................ 13
6.7 Equitable Remedies...................................................... 13
6.8 Notices; Exercise of Option............................................. 13
6.9 Waiver of Rights; Consents with Respect to Partnership Interests........ 14
6.10 Releases and Waivers.................................................... 17
6.11 Confidentiality......................................................... 17
6.12 Computation of Time..................................................... 18
6.13 Survival................................................................ 18
6.14 Time of the Essence..................................................... 18
Exhibit
A. Contribution and Assumption Agreement
Schedule
A. Interest
-ii-
4
CONTRIBUTION AGREEMENT
This Contribution Agreement (this "AGREEMENT") dated as of the 24th day
of April, 1997 is entered into by and among TOWER REALTY OPERATING PARTNERSHIP,
L.P., a Delaware limited partnership (the "OPERATING PARTNERSHIP"), and XXXXXXX
XXXXXXX (the "CONTRIBUTOR").
R E C I T A L S:
A. The Contributor owns an interest as set forth on Schedule A
hereto (the "INTEREST") in CXX Mineola Limited Partnership, a New York limited
partnership (the "PARTNERSHIP").
B. The Contributor owned a 20% limited partnership interest in
Stellar Associates, a New York limited partnership ("Stellar"). As a result of
the bankruptcy of the general partner of Stellar, Stellar was dissolved (the
"Dissolution"). Stellar had been the record owner of a 5% limited partnership of
the Partnership. Pursuant to the Dissolution, the general partner of Stellar
distributed or will distribute on or prior to the Closing (as defined in Section
2.2) to each of the partners of Stellar, including the Contributor, each such
partner's pro rata share, subject to a proportionate share of its liability, of
the Partnership, which is the Interest.
C. The Operating Partnership desires to acquire through a
contribution to capital from the Contributor, and the Contributor desires to
contribute to the Operating Partnership, on the terms and conditions set forth
herein, all of the Contributor's rights, title and interest as a partner of the
Partnership in exchange for units or limited partnership interests ("OP UNITS")
in the Operating Partnership.
D. The Operating Partnership desires to acquire the Interest in
connection with (i) the formation of Tower Realty Trust, Inc., a Maryland
corporation (the "COMPANY"), which intends to qualify as a real estate
investment trust and which is the sole general partner as well as a limited
partner of the Operating Partnership, and (ii) the proposed loan from Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx, Incorporated or an affiliate thereof (the "ML
LOAN") to the Partnership.
NOW, THEREFORE, for and in consideration of the mutual covenants and
conditions set forth herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Operating
Partnership and the Contributor agree as follows:
5
ARTICLE I
CONTRIBUTION OF INTEREST AND EXCHANGE FOR OP UNITS
1.1 Contribution Transaction. At the Closing (as defined in
Section 2.2 herein) and subject to the terms and conditions contained in this
Contribution Agreement, the Contributor shall transfer to the Operating
Partnership, absolutely and unconditionally, all of its Interest (as such term
is defined in Recital A herein). The contribution of the Contributor's Interest
shall be evidenced by a "CONTRIBUTION AND ASSUMPTION AGREEMENT" in substantially
the form of EXHIBIT "A" attached hereto. The parties shall take such additional
actions and execute such additional documentation as may be required by the
agreement of limited partnership dated as of January 18, 1987 of the Partnership
(the "PARTNERSHIP AGREEMENT") and the agreement of limited partnership dated as
of March 24, 1997 of the Operating Partnership (the "OP AGREEMENT") in order to
effect the transactions contemplated hereby.
1.2 Exchange of OP Units. The Operating Partnership shall, in
exchange for the Interest, transfer to the Contributor 600 OP Units (the
"CONSIDERATION"). The transfer of the OP Units to the contributor shall be
evidenced by an amendment (the "AMENDMENT") to the OP Agreement. The parties
shall take such additional actions and execute such additional documentation as
may be required by the Partnership Agreement and the OP Agreement in order to
effect the transactions contemplated hereby.
1.3 Contribution of Certain Rights. Effective upon the Closing,
the Contributor hereby contributes to the Operating Partnership all of its
rights and interests, if any, including rights to indemnification in favor of
the Contributor, if any, under the agreements pursuant to which the Contributor
or its affiliates initially acquired the Interest transferred pursuant to this
Contribution Agreement.
1.4 Treatment as Contribution. The transfer, assignment and
exchange of interests effectuated with respect to the Operating Partnership,
pursuant to this Contribution Agreement, shall constitute a "Capital
Contribution" pursuant to Article 4 of the OP Agreement and is intended to be
governed by Section 721(a) of the Internal Revenue Code of 1986, as amended (the
"CODE").
1.5 Additional Documents. At the Closing of the Company's
contemplated initial public offering (the "IPO"), Contributor will enter into
with the Operating Partnership, the Company or the Underwriters for the IPO a
lock-up agreement, exchange rights agreement and registration rights agreement
substantially in the same form as those entered into by Xxxxxxxx X. Xxxxxxx at
the closing of the IPO.
-2-
6
ARTICLE II
CLOSING
2.1 Conditions Precedent. The Closing of the ML Loan is a
condition precedent to the obligations of both parties to this Contribution
Agreement to effect the transactions contemplated by this Contribution Agreement
on the Closing Date (as defined below).
The obligations of the Operating Partnership to effect the
transactions contemplated hereby shall be subject to the following additional
conditions:
(a) The representations and warranties of the Contributor
contained in this Contribution Agreement shall have been true and
correct in all material respects on the date such representations and
warranties were made, and shall be true and correct in all material
respects on the Closing Date as if made at and as of such date;
(b) Each of the obligations of the Contributor to be
performed by it shall have been duly performed by it on or before the
Closing Date;
(c) Concurrently with the Closing, the Contributor shall
have executed and delivered to the Operating Partnership the documents
required to be delivered pursuant to Section 2.3 hereof;
(d) The Contributor shall have obtained all necessary
consents or approvals of governmental authorities or third parties to
the consummation of the transactions contemplated hereby and the
general partner of Stellar shall have distributed the Interest to the
Contributor;
(e) The Contributor shall not have breached any of its
covenants contained herein in any material respect;
(f) No order, statute, rule, regulation, executive order,
injunction, stay, decree or restraining order shall have been enacted,
entered, promulgated or enforced by any court of competent jurisdiction
or governmental or regulatory authority or instrumentality that
prohibits the consummation of the transactions contemplated hereby, and
no litigation or governmental proceeding seeking such an order shall be
pending or threatened;
(g) There shall not have occurred between the date hereof
and the Closing Date any material adverse change in any of the
Partnership's assets or business; and
(h) The Operating Partnership shall have acquired at or
prior to the Closing all outstanding partnership interests in the
Partnership.
-3-
7
The foregoing conditions may be waived by the Operating
Partnership in its sole and absolute discretion.
2.2 Time and Place. The date, time and place of the closing of the
transactions contemplated hereunder (the "CLOSING") shall be the day the
Operating Partnership receives the proceeds from the ML Loan (the "CLOSING
DATE"), at 10:00 a.m. in the office of Battle Xxxxxx LLP, 00 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000. The transfers described in Sections 1.1 and 1.2 of
this Contribution Agreement, and all closing deliveries, and the consummation of
the ML Loan, shall be deemed concurrent for all purposes.
2.3 Closing Deliveries. At the Closing, the parties shall make,
execute, acknowledge and deliver, or cause to be made,executed, acknowledged and
delivered through the Attorney-in-Fact (as designated in Section 5.1 below), the
legal documents and other items (collectively, the "CLOSING DOCUMENTS")
necessary to carry out the intention of this Contribution Agreement, which
Closing Documents and other items shall include, without limitation, the
following:
(i) A Contribution and Assumption Agreement;
(ii) The Amendment evidencing the transfer of OP
Units to the Contributor;
(iii) The Partnership's books and records and
securities or other evidences of ownership held by the Contributor; and
(iv) An affidavit from the Contributor, stating
under penalty of perjury, the Contributors's United States Taxpayer
Identification Number and that the Contributor is not a foreign person
pursuant to section 1445(b)(2) of the Code and a comparable affidavit
satisfying California and any other withholding requirements.
2.4 Closing Costs. The Operating Partnership shall pay any
documentary transfer taxes, escrow charges, title charges and recording taxes or
fees incurred in connection with the transactions contemplated hereby.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE CONTRIBUTOR
As a material inducement to the Operating Partnership to enter into
this Agreement and to consummate the transactions contemplated hereby, the
Contributor hereby makes to the Operating Partnership, with respect to the
Interest, each of the representations and warranties set forth in this Article
III, which representations and warranties (unless otherwise noted) are true as
of the date hereof. As a condition to the Operating Partnership's obligation to
consummate the contribution
-4-
8
of the Contributor's Interests to the capital of the Operating Partnership, such
representations and warranties must be true as of the Closing Date.
3.1 Title to Interest. (a) The Contributor owns beneficially and
of record, free and clear of any claim, lien, pledge (except for pledges
relating to the debt or equity financing of any of the properties held by the
Partnership (each, a "Property") or encumbrances arising under the Partnership
Agreement pursuant to which the Interest was issued (any such pledge, a
"PERMITTED PLEDGE")), voting agreement, option, charge, security interest,
mortgage, deed of trust, encumbrance, right of assignment, purchase right or
other rights of any nature whatsoever (each, an "ENCUMBRANCE"), and has full
power and authority to convey free and clear of any Encumbrances, its Interest
and, upon delivery of a Contribution and Assumption Agreement by the Contributor
conveying its Interest and delivery of the Consideration by the Operating
Partnership for such Interest as herein provided, the Operating Partnership will
acquire, as a contribution to its capital, good and valid title thereto, free
and clear of any Encumbrance, except Encumbrances created in favor of the
Operating Partnership by the transactions contemplated hereby.
(b) The Interest has been validly issued and the Contributor has
funded (or will fund before the same is past due) all capital contributions and
advances to the Partnership that are required to be funded or advanced prior to
the date hereof and the Closing.
(c) There are no agreements, instruments or understandings with
respect to the Interest except as set forth in the Partnership Agreement.
(d) No Permitted Pledge will be in existence as of the date of the
Closing, and the Contributor shall provide, at the Closing, such documentary
evidence of the release of any Permitted Pledge as the Operating Partnership may
reasonably request.
(e) In making the representations in this Section 3.1 regarding
the absence of Encumbrances, the Contributor may assume that the consents and
waivers of rights set forth in Section 6.9 hereof have been given by all
partners of the Partnership.
3.2 Organization; Authority; No Conflicts. (a) If the Contributor
is not a natural person, the Contributor is a corporation, limited partnership,
general partnership, limited liability company or trust duly organized, validly
existing and in good standing under the laws of the state of its organization.
(b) Such Contributor has full right, authority, power and
capacity:
(i) to execute and deliver this Agreement, each Closing
Document and each other agreement, document and instrument to be
executed and delivered by or on behalf of such Contributor pursuant to
this Agreement;
(ii) to perform the transactions contemplated hereby and
thereby; and
-5-
9
(iii) to transfer, assign, convey and deliver all of such
Contributor's Interest to the Operating Partnership in accordance with
this Agreement.
(c) All applicable corporate, partnership, limited liability
company, trust or other action necessary for such Contributor to execute and
deliver this Agreement, the Closing Documents and each other agreement, document
and instrument executed by or on behalf of Contributor pursuant to this
Agreement, and to perform the transactions contemplated hereby and thereby, has
been taken, or will be taken prior to the Closing Date.
(d) This Agreement, each Closing Document and each other
agreement, document and instrument executed and delivered by or on behalf of
such Contributor pursuant to this Agreement constitutes, or when executed and
delivered will constitute, the legal, valid and binding obligation of such
Contributor, each enforceable in accordance with its respective terms.
(e) Except for any breaches, violations or defaults which will be
waived or cured, or discharged or repaid prior to or contemporaneously with the
Closing, the execution, delivery and performance of this Agreement, the Closing
Documents and each other agreement, document and instrument to be executed and
delivered by or on behalf of such Contributor:
(i) does not and will not violate such Contributor's charter
and/or bylaws, partnership agreement, operating agreement or
declaration of trust, as applicable;
(ii) does not and will not violate any foreign, federal,
state, local or other laws applicable to such Contributor or require
such Contributor to obtain any approval, consent or waiver of, or make
any filing with, any person or authority (governmental or otherwise)
that has not been obtained or made and which does not remain in effect;
and
(iii) does not and will not result in a breach or a violation
of, constitute a default under, accelerate any obligation under or give
rise to a right of termination of, any indenture, deed of trust,
mortgage, loan or credit agreement or any other agreement, contract,
instrument, lease, permit, authorization, order, writ, judgment,
injunction, decree, determination or arbitration award to which such
Contributor is a party or by which the property of such Contributor is
bound or affected, or result in the creation of any Encumbrance on any
of the property or assets of the Partnership.
(f) In making the representations set forth in this Section 3.2,
each Contributor may assume that
(i) the consents and waivers of rights set forth in Section
6.9 hereof have been given by all partners of the Partnership, and
-6-
10
(ii) for purposes of making such representation as of the date
hereof, any Permitted Pledge has been released.
3.3 Litigation. (a) The Contributor knows of no litigation or
proceeding, whether judicial, administrative or arbitral, pending or overtly
threatened, affecting all or any portion of Interest or such Contributor's
ability to consummate the transactions contemplated hereby.
(b) Such Contributor knows of no outstanding order, writ,
injunction or decree of any court, government, governmental entity or authority
or arbitration against or affecting all or any portion of the Interest, which in
any such case would impair such Contributor's ability to enter into and perform
all of its obligations under this Agreement.
3.4 No Other Agreements. (a) The Contributor has made no agreement
with, and will not enter into any agreement with, and has no obligation
(absolute or contingent) to, any other person or entity to sell, transfer,
dispose of or in any way encumber the Interest or restricting in any way such
Contributor's ability to contribute the Interest to the capital of the Operating
Partnership or to enter into any agreement with respect to the Interest.
(b) In making the representations set forth in this Section 3.4,
each Contributor may assume that
(i) the consents and waivers of rights set forth in Section
6.9 hereof have been given by all partners of the Partnership, and
(ii) for purposes of making such representations as of the
date hereof, any Permitted Pledge has been released.
3.5 No Brokers. The Contributor has not entered into, and
covenants that it will not enter into, any agreement, arrangement or
understanding with any person or entity which will result in the obligation of
the Operating Partnership to pay any finder's fee, brokerage commission or
similar payment in connection with the transactions contemplated hereby.
3.6 Investment Representations and Warranties.
(a) (i) The Contributor, by reason of its business and financial
experience, together with the business and financial experience of those
persons, if any, retained by it to represent or advise it with respect to its
investment in OP Units,
(A) has such knowledge, sophistication and experience
in financial and business matters and in making investment
decisions of this type that it is capable of evaluating the
merits and risks of, and of making an informed investment
decision with respect to, an investment in OP Units,
-7-
11
(B) is capable of protecting its own interest or has
engaged representatives or advisors to assist it in protecting
its interests, and
(C) is capable of bearing the economic risk of such
investment.
(ii) (A) The Contributor is an "accredited investor" as
defined in Rule 501 of the regulations promulgated under the Securities
Act of 1933, as amended (the "SECURITIES ACT").
(B) If the Contributor has retained or retains a
person to represent or advise it with respect to its
investment in OP Units, the Contributor will advise the
Operating Partnership of such retention and, at the Operating
Partnership's request, the Contributor shall, prior to or at
the Closing,
(I) acknowledge in writing such
representation, and
(II) cause such representative or advisor to
deliver a certificate to the Operating Partnership
containing such representations as may be reasonably
requested by the Operating Partnership.
(b) (i) The Contributor understands that an investment in the
Operating Partnership involves substantial risks.
(ii) The Contributor has been given the opportunity to make a
thorough investigation of the proposed activities of the Operating
Partnership.
(iii) The Contributor has been afforded the opportunity to
obtain any additional information requested by it.
(iv) The Contributor has had an opportunity to ask questions
of and receive answers from representatives of the Operating
Partnership concerning the Operating Partnership and its proposed
activities and the terms and conditions of an investment in OP Units.
(c) (i) The OP Units to be issued to the Contributor at the
Closing will be acquired by the Contributor for its own account, for investment
only and not with a view to, or with any intention of, a distribution or resale
thereof, in whole or in part, or the grant of any participation therein.
(ii) The Contributor was not formed for the specific purpose
of acquiring an interest in the Operating Partnership.
(d) (i) The Contributor acknowledges that
-8-
12
(A) the OP Units to be issued to the Contributor at
the Closing have not been registered under the Securities Act
or state securities laws by reason of a specific exemption or
exemptions from registration under the Securities Act and
applicable state securities laws and, if such OP Units are
represented by certificates, such certificates will bear a
legend to such effect,
(B) the Company's and the Operating Partnership's
reliance on such exemptions is predicated in part on the
accuracy and completeness of the representations and
warranties of the Contributor contained herein,
(C) the OP Units to be issued to the Contributor at
the Closing may not be resold or otherwise distributed unless
registered under the Securities Act and applicable state
securities laws, or unless an exemption from registration is
available,
(D) there is no public market for the OP Units, and
(E) the Operating Partnership has no obligation or
intention to register such OP Units under the Securities Act
or any state securities laws or to take any action that would
make available any exemption from the registration
requirements of such laws.
(ii) The Contributor hereby acknowledges that because of the
restrictions on transfer or assignment of such OP Units to be issued
hereunder, which will be set forth in the OP Agreement and in the
lock-up agreement referred to in Section 1.9, such Contributor may have
to bear the economic risk of the investment commitment evidenced by
this Agreement and any OP Units issued hereunder for an indefinite
period of time.
(e) The address previously provided by the Contributor to the
Operating Partnership is the address of the Contributor's principal place of
business or, if a natural person, the address of the Contributor's residence,
and the Contributor has no present intention of becoming a resident of any
country, state or jurisdiction other than the country and state in which such
principal place of business or residence is situated.
3.7 Covenant to Remedy Breaches. The Contributor covenants to use
all reasonable efforts within its control
(a) to prevent the breach of any representation or
warranty of the Contributor hereunder,
(b) to satisfy all covenants of the Contributor
hereunder, and
-9-
13
(c) to promptly clear any breach of a representation,
warranty or covenant of the Contributor hereunder upon its learning of
same.
3.8 Actions Prior to Closing. From the date hereof through the
Closing, the Contributor shall not:
(i) Sell or transfer all or any portion of the Interest; or
(ii) Mortgage, pledge or encumber (or permit to become
encumbered) all or any portion of the Interest.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE OPERATING PARTNERSHIP
As a material inducement to the Contributor to enter into this
Agreement and to consummate the transactions contemplated hereby, the Operating
Partnership hereby makes to the Contributor each of the representations and
warranties set forth in this Article IV, which representations and warranties
are true as of the date hereof and shall be true as of the date of the Closing.
4.1 Authority. (a) The Operating Partnership is a limited
partnership duly organized, validly existing and in good standing under the laws
of the State of Delaware.
(b) The Operating Partnership has full right, authority, power and
capacity:
(i) to execute and deliver this Agreement, each Closing
Document to which it is a party and each other agreement, document and
instrument to be executed and delivered by or on behalf of it pursuant
to this Agreement;
(ii) to perform the transactions contemplated hereby and
thereby; and
(iii) to issue OP Units to the Contributor pursuant to and in
accordance with the terms of this Agreement.
(c) This Agreement, each Closing Document to which the Operating
Partnership is a party and each agreement, document and instrument executed and
delivered by the Operating Partnership pursuant to this Agreement constitutes,
or when executed and delivered will constitute, the legal, valid and binding
obligation of the Operating Partnership, each enforceable in accordance with its
respective terms.
-10-
14
(d) The execution, delivery and performance of this Agreement,
each Closing Document to which the Operating Partnership is a party and each
such agreement, document and instrument by the Operating Partnership:
(i) does not and will not violate the OP Agreement;
(ii) does not and will not violate any foreign, federal,
state, local or other laws applicable to the Operating Partnership or
require the Operating Partnership to obtain any approval, consent or
waiver of, or make any filing with, any person or authority
(governmental or otherwise) that has not been obtained or made and
which does not remain in effect; and
(iii) does not and will not result in a breach or a violation
of, constitute a default under, accelerate any obligation under or give
rise to a right of termination of, any indenture, deed of trust,
mortgage, loan or credit agreement, any other material agreement,
contract, instrument, lease, permit or authorization, or any order,
writ, judgment, injunction, decree, determination or arbitration award
to which the Operating Partnership is a party or by which the property
of the Operating Partnership is bound or affected.
4.2 No Brokers. The Operating Partnership has not entered into,
and covenants that it will not enter into, any agreement, arrangement or
understanding with any person or entity which will result in the obligation of
any Contributor to pay any finder's fee, brokerage commission or similar payment
in connection with the transactions contemplated hereby.
ARTICLE V
POWER OF ATTORNEY
5.1 Grant of Power of Attorney. The Contributor does hereby
irrevocably appoint the Operating Partnership (or its designee) and each of them
individually and any successor thereof from time to time (such Operating
Partnership or designee or any such successor of any of them acting in his, her
or its capacity as attorney-in-fact pursuant hereto, the "ATTORNEY-IN-FACT") as
the true and lawful attorney-in-fact and agent of the Contributor, to act in the
name, place and stead of the Contributor to make, execute, acknowledge and
deliver all such other contracts, orders, other writings (including without
limitation the execution of any Closing Documents or other documents relating to
the acquisition by the Operating Partnership of the Interest), to provide
information to the Securities and Exchange Commission and others about the
transactions contemplated hereby and, in general, to do all things and to take
all actions which the Attorney-in-Fact in its sole discretion may consider
necessary or proper in connection with or to carry out the transactions
contemplated by this Contribution Agreement, as fully as could the Contributor
if personally present and acting. Further, the Contributor hereby grants to the
Attorney-in-Fact a proxy (the "PROXY") to vote the Contributor's Interest on any
matter related to the Transactions
-11-
15
contemplated hereby or to the ML Loan presented to the partners of the
Partnership for a vote, including, but not limited to, the transfer of interests
in the Partnership by the other partners.
Each of the Power of Attorney and Proxy and all authority granted
hereby shall be coupled with an interest and therefore shall be irrevocable and
shall not be terminated by any act of the Contributor, by operation of law or by
the occurrence of any other event or events, and if any other such act or events
shall occur before the completion of the transactions contemplated by this
Contribution Agreement, the Attorney-in-Fact shall nevertheless be authorized
and directed to complete all such transactions as if such other act or events
had not occurred and regardless of notice thereof. The Contributor agrees that,
at the request of the Operating Partnership, it will promptly execute a separate
power of attorney and proxy on the same terms set forth in this ARTICLE 5, such
execution to be witnessed and notarized. The Contributor hereby authorizes the
reliance of third parties on each of the Power of Attorney and Proxy.
The Contributor acknowledges that the Operating Partnership has, and
any designee or successor thereof acting as Attorney-in-Fact may have, an
economic interest in the transactions contemplated by this Contribution
Agreement.
5.2 Limitation on Liability. It is understood that the
Attorney-in-Fact assumes no responsibility or liability to any person by virtue
of the Power of Attorney or Proxy granted by the Contributor hereby. The
Attorney-in-Fact makes no representations with respect to and shall have no
responsibility for the transactions contemplated hereby or the IPO, or the
acquisition of the Interest by the Operating Partnership and shall not be liable
for any error or judgment or for any act done or omitted or for any mistake of
fact or law except for its own gross negligence or bad faith. The Contributor
agrees to indemnify the Attorney-in-Fact for and to hold the Attorney-in-Fact
harmless against any loss, claim, damage or liability incurred on its part
arising out of or in connection with it acting as the Attorney-in-Fact under the
Power of Attorney or Proxy created by the Contributor hereby, as well as the
cost and expense of investigating and defending against any such loss, claim,
damage or liability, except to the extent such loss, claim, damage or liability
is due to the gross negligence or bad faith of the Attorney-in-Fact. The
Contributor agrees that the Attorney-in-Fact may consult with counsel of its own
choice (who may be counsel for the Operating Partnership or its successors or
affiliates), and it shall have full and complete authorization and protection
for any action taken or suffered by it hereunder in good faith and in accordance
with the opinion of such counsel. It is understood that the Attorney-in-Fact
may, without breaching any express or implied obligation to Contributor
hereunder, release, amend or modify any other power of attorney or proxy granted
by any other person under any related agreement.
-12-
16
ARTICLE VI
MISCELLANEOUS
6.1 Amendment. (a) This Agreement may only be amended by a written
agreement duly executed by the Contributor and the Operating Partnership.
(b) No waiver of any provisions of this Agreement shall be valid
unless in writing and signed by the party against whom enforcement is sought.
6.2 Entire Agreement; Counterparts; Applicable Law. This Agreement
(a) constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, among the parties
with respect to the subject matter hereof,
(b) may be executed in several counterparts, each of which
will be deemed an original and all of which shall constitute one and
the same instrument, and
(c) shall be governed in all respects, including validity,
interpretation and effect, by the laws of the State of New York without
giving effect to the conflicts of law provisions thereof.
6.3 Assignability. This Agreement shall be binding upon, and shall
be enforceable by and inure to the benefit of, the parties hereto and their
respective heirs, legal representatives, successors and assigns; provided,
however, that this Agreement may not be assigned (except by operation of law) by
the Operating Partnership without the prior written consent of the Contributor,
or by any Contributor without the prior written consent of the Operating
Partnership, and any attempted assignment without such consent shall be void and
of no effect; provided, further, however, that the Operating Partnership may
assign all or any portion of this Agreement and the Closing Documents and any
agreement contemplated hereunder or thereunder to the Company or to an affiliate
of the Operating Partnership or the Company without the consent of the
Contributor.
6.4 Titles. The titles and captions of the Articles, Sections and
paragraphs of this Agreement are included for convenience of reference only and
shall have no effect on the construction or meaning of this Agreement.
6.5 Third Party Beneficiary. No provision of this Agreement is
intended, nor shall it be interpreted, to provide or create any third party
beneficiary right or any other right of any kind in any customer, affiliate,
stockholder, partner, director, officer or employee of any party hereto or any
other person or entity, provided, however, that Article V and Sections 6.3 and
6.9 of this Agreement shall be enforceable by and shall inure to the benefit of
the persons described therein.
-13-
17
6.6 Severability. (a) If any provision of this Agreement, or the
application thereof, is for any reason held to any extent to be invalid or
unenforceable, the remainder of this Agreement and application of such provision
to other persons or circumstances will be interpreted so as reasonably to effect
the intent of the parties hereto.
(b) The parties further agree to replace such void or
unenforceable provision of this Agreement with a valid and enforceable provision
that will achieve, to the extent possible, the economic, business and other
purposes of the void or unenforceable provision and to execute any amendment,
consent or agreement deemed necessary or desirable by the Operating Partnership
to effect such replacement.
6.7 Equitable Remedies. (a) The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached.
(b) It is accordingly agreed that the parties shall be entitled to
an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any federal or state
court located in the State of New York (as to which the parties agree to submit
to jurisdiction for the purposes of such action), this being in addition to any
other remedy to which they are entitled under this Agreement or otherwise at law
or in equity.
6.8 Notices; Exercise of Option. Any notice or demand which must
or may be given under this Agreement or by law shall, except as otherwise
provided, be in writing and shall be deemed to have been given
(i) when physically received by personal delivery (which shall
include the confirmed receipt of a telecopied facsimile transmission),
(ii) three (3) business days after being deposited in the
United States certified or registered mail, return receipt requested,
postage prepaid, or
(iii) one (1) business day after being deposited with a
nationally known commercial courier service utilizing its next day
delivery service (such as Federal Express);
addressed and delivered or telecopied in the case of a notice to the Operating
Partnership to the following address and telecopy number:
-14-
18
Tower Realty Operating Partnership, L.P.
c/o Feldman Equities
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxxx Xxxxxxx
Phone: (000)000-0000
Telecopy: (000)000-0000
with a copy to:
Battle Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxxx, Esq.
Phone: (000)000-0000
Telecopy: (000)000-0000
and addressed and delivered or telecopied, in the case of a notice to the
Contributor, to the address and telecopy number set forth under the
Contributor's name on the signature page hereof.
6.9 Waiver of Rights; Consents with Respect to Partnership
Interests. (a) The Contributor acknowledges that the agreements contained herein
and the transactions contemplated hereby and any actions taken in contemplation
of the transactions contemplated hereby (including the declaration of any
dividend or distribution in the form of an additional interest in the
Partnership) may conflict with, and may not have been contemplated by, the
Partnership Agreement or another agreement among one or more holders of
interests in the Partnership or one or more of the partners of the Partnership.
(b) The Contributor expressly gives all Consents (and any consent
necessary to authorize the proper parties in interest to give all Consents) and
Waivers necessary or desirable to facilitate any Conveyance Action relating to
the Partnership (as such terms are defined below).
(c) The Contributor further agrees that the Contributor will take
no action to enjoin, or seek damages resulting from, any Conveyance Action by
any holder of a direct or indirect interest in the Partnership.
(d) The Waivers and Consent contained in this Section 6.9 shall
terminate upon the termination of this Agreement, except as to transactions
completed hereunder prior to termination.
(e) (i) As used herein, the term "CONVEYANCE ACTION" means, with
respect to the Partnership,
-15-
19
(ii) the conveyance or agreement to convey by a partner
thereof or by any holder of an indirect interest therein (whether or
not such partner or holder is a contributor under an agreement
containing terms similar to this Contribution Agreement) of its direct
or indirect interest in the Partnership to the Operating Partnership or
the Company or to another person in connection with the formation of
the Operating Partnership or the Company, or
(iii) the entering into by any such partner or holder of any
agreement relating to
(A) the formation of the Operating Partnership or the
Company,
(B) the direct or indirect acquisition by the
Operating Partnership or the Company of any such direct or
indirect interest, or
(C) the transactions described in or contemplated by
the prospectus relating to the IPO, or
(iv) the taking by any such partner or holder of any action
necessary or desirable to facilitate any of the foregoing, including,
without limitation, the following (provided that the same are taken in
furtherance of the foregoing):
(A) any sale or distribution to any person of a
direct or indirect interest in the Partnership or an undivided
tenant-in-common interest in the Property represented by such
Partnership interest,
(B) the entering into of any agreement with any
person or entity that grants to such person or entity the
right to purchase a direct or indirect interest in the
Partnership, and
(C) the giving of the Consents and Waivers contained
in this Section 6.9 or consents or waivers similar thereto in
form or purpose.
(v) As used herein, the term "CONSENTS" means, with respect to
the Partnership, any consent deemed by the Operating Partnership to be
necessary or desirable under the Partnership Agreement or any other
agreement among all or any of the holders of interests therein or any
other agreement relating thereto or referred to therein
(A) to permit any and all Conveyance Actions relating
to the Partnership or to amend the Partnership Agreement
and/or other agreements so that no provision thereof
prohibits, restricts, impairs or interferes with any
Conveyance Action (such amendment to include, without
limitation, the deletion of provisions which cause a default
under such agreement if interests therein are transferred for
other than cash),
-16-
20
(B) to admit the Operating Partnership (or the
Company or any affiliate of the Operating Partnership or the
Company in accordance with Section 6.3 above) as a substitute
limited partner or general partner of the Partnership upon the
Operating Partnership's or any such affiliate's acquisition of
a limited or general partner interest therein, respectively,
and to adopt such amendment as is necessary or desirable to
effect such admission,
(C) to adopt any amendment as may be deemed desirable
by the Operating Partnership, either simultaneously with or
immediately prior to the acquisition by the Operating
Partnership or any such affiliate of a limited or general
partnership interest therein, provided, however, that such
amendment will not result in any increased liability on the
part of the Contributor or under the Partnership Agreement,
and
(D) to continue the Partnership following the
transfer of interests therein to the Operating Partnership (or
the Company or any affiliate of the Operating Partnership or
the Company in accordance with Section 6.3 above).
(vi) As used herein, the term "WAIVERS" means, with respect to
the Partnership, the waiving of any and all rights that the Contributor
may have with respect to, and (to the extent possible) that any other
person may have with respect to, or that may accrue to the Contributor
or other person upon the occurrence of, a Conveyance Action relating to
the Partnership, including, but not limited to, the following rights:
(A) rights of notice,
(B) rights to response periods,
(C) rights to purchase the direct or indirect
interest of another partner in the Partnership (or the
property interests represented by such partnership interest)
or to sell the Contributor's or other person's direct or
indirect interest therein to another partner,
(D) rights to sell the Contributor's or other
person's direct or indirect interest therein at a price other
than as provided herein, or
(E) rights to prohibit, limit, invalidate, otherwise
restrict or impair any such Conveyance Action or to cause a
termination or dissolution of the Partnership because of such
Conveyance Action.
6.10 Releases and Waivers. Each of the releases and waivers
enumerated in this Section 6.10 shall become effective only upon the Closing and
the exchange of the Interest for the OP Units pursuant to ARTICLE 2.
-17-
21
(a) As of the Closing, the Contributor irrevocably
waives, releases and forever discharges the Operating
Partnership and the Operating Partnership's affiliates,
partners (including Xxxxxxxx X. Xxxxxxx), agents, attorneys,
successors and assigns of and from, any and all charges,
complaints, claims, liabilities, damages, actions, causes of
action, losses and costs of any nature whatsoever
(collectively, "CONTRIBUTOR CLAIMS"), known or unknown,
suspected or unsuspected, arising out of or relating to the
Partnership Agreement, this Contribution Agreement or any
other matter which exists at the Closing, except for
Contributor Claims arising from the breach of any
representation, warranty, covenant or obligation under this
Contribution Agreement.
(b) As of the Closing, the Operating Partnership
irrevocably waives, releases and forever discharges the
Contributor and the Contributor's agents, attorneys,
successors and assigns of and from, any and all charges,
complaints, claims, liabilities, damages, actions, causes of
action losses and costs of any nature whatsoever
(collectively, "OPERATING PARTNERSHIP CLAIMS"), known or
unknown, suspected or unsuspected, arising out of or relating
to the Partnership Agreement, this Contribution Agreement or
any other matter which exists at the Closing, except for
Operating Partnership Claims arising from the breach of any
representation, warranty, covenant or obligation under this
Contribution Agreement.
(c) As of the Closing, the Contributor waives and
relinquishes all rights and benefits otherwise afforded to the
Contributor under the Partnership Agreement including, without
limitation, any right to consent to or approve of the sale or
contribution by the other partners of the Partnership of their
partnership interests to the Company or the Operating
Partnership.
6.11 Confidentiality. (a) The Contributor shall treat as strictly
confidential the fact that the Company is contemplating an offering of its
Common Stock until such time as the Company has filed Registration Statement
relating thereto with the Securities and Exchange Commission, and shall not
communicate at any time the terms of this Agreement to any person other than
counsel or advisors to the Contributor who agree to keep such terms confidential
and any lender holding a lien on any Property Interests.
(b) The Contributor shall treat all information received from the
Operating Partnership or its counsel or advisors pertaining to the Operating
Partnership or the Company confidential and shall disseminate the same only to
counsel to the Contributor who agree to keep such information confidential.
6.12 Computation of Time. Any time period provided for herein which
shall end on a Saturday, Sunday or bank or legal holiday shall extend to 5:00
p.m. of the next full business day. All times are New York City time.
-18-
22
6.13 Survival. It is the express intention and agreement of the
parties hereto that the representations, warranties and covenants of the
Operating Partnership and the Contributor set forth in this Agreement shall
survive the consummation of the transactions contemplated hereby.
6.14 Time of the Essence. Time is of the essence with respect to
all obligations of the Contributor under this Agreement.
-19-
23
[SIGNATURE PAGE TO CONTRIBUTION AGREEMENT CXX MINEOLA LIMITED PARTNERSHIP]
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement, or caused this Agreement to be duly executed on its behalf, as of the
date first written above.
OPERATING PARTNERSHIP:
TOWER REALTY OPERATING PARTNERSHIP,
L.P.
By: TOWER REALTY TRUST, INC.,
its general partner
By: /s/ Xxxxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: President
CONTRIBUTOR'S ADDRESS: CONTRIBUTOR:
000 Xxxxx Xxxx XXXXXXX XXXXXXX
--------------------------
Xxxxxxxxxx, XX 00000
--------------------------
By: /s/ Xxxxxxx Xxxxxxx
-------------------------- -----------------------------------
--------------------------
-20-
24
EXHIBIT A
to
CONTRIBUTION AGREEMENT
CONTRIBUTION AND ASSUMPTION AGREEMENT
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of
which are hereby acknowledged, the undersigned hereby assigns, transfers,
contributes and conveys to Tower Realty Operating Partnership, L.P. a Delaware
limited partnership (the "OPERATING PARTNERSHIP"), his or its entire legal and
beneficial right, title and interest in and to all general or limited
partnership interests (the "INTEREST") held by him or it in CXX Mineola Limited
Partnership (the "PARTNERSHIP"), including, without limitation, all rights to
receive distributions of money, profits and other assets from or relating to the
Partnership or the Interest, presently existing or hereafter at any time arising
or accruing TO HAVE AND TO HOLD the same unto the Operating Partnership, its
successors and assigns, forever.
Upon the execution and delivery hereof, the Operating Partnership
assumes all obligations in respect of the Interest.
Executed: April __, 1997 XXXXXXX XXXXXXX
By:
--------------------------
Name:
Title:
-21-
25
SCHEDULE A
XXXXXXX XXXXXXX 1% limited partnership interest in CXX Mineola Limited
Partnership
-22-
