Exhibit 10.9
OMNIBUS CONTRIBUTION AGREEMENT
BY AND AMONG
X.X. XXXXX OPERATING PARTNERSHIP, L.P.
AND THE
CONTRIBUTORS NAMED HEREIN
Dated as of June 13, 1997
TABLE OF CONTENTS
ARTICLE I. CONTRIBUTION TERMS AND CLOSING PROCEDURES....................... 2
1.1 Acquisition of Interests...................................... 2
1.2 Term of Agreement............................................. 2
1.3 Consideration................................................. 2
1.4 Closing; Condition to Obligations............................. 2
1.5 Documents to be Delivered at Closing.......................... 5
1.6 Cessation of IPO.............................................. 5
1.7 Closing Costs................................................. 6
1.8 Default....................................................... 6
1.9 Further Assurances............................................ 6
ARTICLE II. REPRESENTATIONS, WARRANTIES
AND COVENANTS OF CONTRIBUTORS...................................... 7
2.1 Title to Interests............................................ 7
2.2 Authority..................................................... 8
2.3 Litigation.................................................... 9
2.4 No Other Agreements to Sell................................... 9
2.5 No Brokers.................................................... 10
2.6 Investment Representations and Warranties..................... 10
2.7 FIRPTA Representation......................................... 12
2.8 Additional Representations of Certain
Contributors.................................................. 12
2.9 Covenant to Remedy Breaches................................... 13
ARTICLE III. REPRESENTATIONS, WARRANTIES AND COVENANTS
OF OPERATING PARTNERSHIP........................................... 13
3.1 Authority..................................................... 13
3.2 No Brokers.................................................... 14
ARTICLE IV. CLOSING ADJUSTMENTS............................................ 14
4.1 Prorations.................................................... 14
4.2 Asset Entity's Retained Items................................. 16
4.3 Accounts Receivable........................................... 16
4.4 Security Deposits............................................. 16
4.5 Timing of Calculations; Cooperation........................... 16
4.6 Allocation of Adjustments..................................... 16
ARTICLE V. POWER OF ATTORNEY............................................... 17
5.1 Grant of Power of Attorney.................................... 17
5.2 Limitation on Liability....................................... 19
5.3 Ratification; Third Party Reliance............................ 19
ARTICLE VI. CONTRIBUTORS................................................... 19
6.1 Amendment..................................................... 19
6.2 Entire Agreement; Counterparts; Applicable
Law........................................................... 20
6.3 Assignability................................................. 20
6.4 Titles........................................................ 20
6.5 Third Party Beneficiary....................................... 20
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6.6 Severability.................................................. 20
6.7 Equitable Remedies............................................ 21
6.8 Attorneys' Fees............................................... 21
6.9 Notices....................................................... 21
6.10 Waiver of Rights; Consents with Respect to
Partnership Interests......................................... 22
6.11 Confidentiality............................................... 25
6.12 Computation of Time........................................... 25
6.13 Survival...................................................... 25
6.14 Time of the Essence........................................... 25
EXHIBIT A: Contributors
EXHIBIT B: Asset Entities
EXHIBIT C: Excluded Interests
EXHIBIT D: Permitted Encumbrances
EXHIBIT E: Operating Partnership Agreement
EXHIBIT F: Investor Questionnaire
EXHIBIT G: Registration Rights Agreement
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OMNIBUS CONTRIBUTION AGREEMENT
This Omnibus Contribution Agreement (the "CONTRIBUTION AGREEMENT") is
executed as of the 13th day of June, 1997 by XX Xxxxx Operating Partnership,
L.P. (the "Operating Partnership"), a Delaware limited partnership in formation,
and the Contributors whose names are set forth in EXHIBIT A hereto (each, a
"CONTRIBUTOR" and, collectively, the "CONTRIBUTORS").
WHEREAS, in connection with the consolidation of its commercial real estate
business, XX Xxxxx Real Estate has formed a Maryland corporation (the "REIT")
that will be the sole general partner and a limited partner of the Operating
Partnership and to effect an initial public offering (the "IPO") of the REIT's
shares of common stock ("Common Stock");
WHEREAS, it is intended that, upon consummation of the IPO, the Operating
Partnership will acquire interests in six office properties located at 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, 000 Xxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 0000
Avenue of the Americas, New York, New York and 00 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx, as well as interests in the construction, property management and
leasing and businesses currently conducted by Emerald City Construction Corp., a
New York corporation, XX Xxxxx Management Corp., a New York corporation and XX
Xxxxx Realty, Inc., a New York corporation;
WHEREAS, it is further understood that the Operating Partnership may
acquire interests in additional office properties located in New York, New York;
WHEREAS, each Contributor owns interests in the partnerships, other
entities or properties described in the supplemental exhibit dated the date
hereof and delivered by or on behalf of such contributor to the Operating
Partnership (such exhibit being hereinafter referred to as such Contributor's
SUPPLEMENTAL ACQUISITION EXHIBIT);
WHEREAS, the Operating Partnership desires to acquire from each
Contributor, and each Contributor desires to convey to the Operating Partnership
under the terms and conditions set forth herein, the interests owned by such
Contributor described in its Supplemental Acquisition Exhibit and (except for
the Excluded Interests set forth in EXHIBIT C) any other direct or indirect
interests such Contributor may have, whether now owned or hereinafter acquired,
in the partnerships or other entities (the "ASSET ENTITIES") listed on EXHIBIT B
(each such asset or property and all personal property related thereto or to the
operation thereof is hereinafter referred to as an "ASSET" and (except for the
Excluded Interests) each such direct or indirect
interest of a Contributor in such Asset Entity or (in the case of Contributors
which are themselves Asset Entities) in such Asset, including without
limitation, such Contributor's interests set forth in its Supplemental
Acquisition Exhibit, is referred to individually as an "INTEREST" and
collectively, as such Contributor's "INTERESTS");
NOW, THEREFORE, 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
Contributors agree as follows:
ARTICLE I. CONTRIBUTION TERMS AND CLOSING PROCEDURES
1.1 ACQUISITION OF INTERESTS. At the Final Closing (defined below),
each Contributor shall, subject to Section 1.4 hereof, contribute, transfer,
assign, and convey to the Operating Partnership and the Operating Partnership
shall (i) acquire and accept from such Contributor, all right, title and
interest of such Contributor in such Contributor's Interests, free and clear of
all Encumbrances (as defined in Section 2.1 hereof) except Permitted
Encumbrances (as defined in Section 2.1 hereof), and (ii) deliver to such
Contributor such Contributor's Consideration (defined below), both in accordance
with this Contribution Agreement.
1.2 TERM OF AGREEMENT. If the IPO Closing (defined below) does not
occur by March 31, 1998 (the "Termination Date"), this Contribution Agreement
shall be deemed terminated and shall be of no further force and effect and
neither the Operating Partnership nor the Contributors shall have any further
obligations hereunder except as specifically set forth herein.
1.3 CONSIDERATION. The full consideration for each Contributor's
Interests (such consideration with respect to such Contributor is hereinafter
referred to as such Contributor's "CONSIDERATION") shall be an amount in cash
and/or a number of Units (as hereinafter defined) set forth in the Contributor's
Supplemental Acquisition Exhibit, subject to the terms and provisions of Article
IV hereof providing for adjustments to each Contributor's Consideration based on
closing adjustments. As used herein, the term "UNITS" means units of limited
partnership interest in the Operating Partnership.
1.4 CLOSING; CONDITION TO OBLIGATIONS. In connection with the
acquisition of the Contributors' Interests, the Operating Partnership will
notify the Contributors of a closing date, which date will be no earlier than
five (5) business days after such notification and no later than March 10, 1998
(fifteen (15) business days prior to the Termination Date), for the initial
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closing (the "INITIAL CLOSING") of the acquisition contemplated by Contribution
Agreement. At or before such Initial Closing, which shall be held at the
offices of Xxxxx & Xxxx LLP, Xxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or
such other place as is determined by the Operating Partnership in its sole
discretion at a time specified by the Operating Partnership in its sole
discretion, the Operating Partnership and the Contributors will execute all
closing documents (the "CLOSING DOCUMENTS") required by the Operating
Partnership in accordance with Section 1.5 hereof and deposit the same in escrow
with Xxxxx & Wood LLP, New York, New York, as escrow agent of the Operating
Partnership (the "CLOSING AGENT").
The transactions contemplated by this Contribution Agreement and by the
Closing Documents executed and deposited in connection with such exercise will
be consummated at the Final Closing (as defined below) only if the closing of
the IPO (the "IPO CLOSING") is consummated by the earlier of (a) fifteen (15)
business days after the date of the Initial Closing and (b) the Termination
Date. If the IPO Closing occurs by such date:
(a) The Operating Partnership shall, contemporaneously with
the IPO Closing, cause to be delivered to the Closing
Agent with respect to each Contributor (i) the cash
portion of such Contributor's Consideration, if any
(such cash portion, the "CASH PORTION"), and (ii) if
applicable, a certificate of the General Partner of the
Operating Partnership certifying that such Contributor
has been or will be, effective upon the Final Closing
(as hereinafter defined), admitted as a limited partner
of the Operating Partnership and that the Operating
Partnership's books and records indicate or will
indicate that such Contributor is the holder of the
number of Units which are called for pursuant to the
Consideration as adjusted pursuant to Article V hereof;
(b) upon receipt of the Consideration set forth in clause
(a) above, the Closing Agent will release the Closing
Documents to the Operating Partnership and deliver to
the Contributor the Cash Portion, if any, and, if
requested by the Contributor, a copy of such General
Partner's certificate; and
(c) the transactions described or otherwise contemplated
herein or in the Closing Documents will thereupon be
deemed to have
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been consummated simultaneously with the IPO Closing (such
consummation, the "FINAL CLOSING").
Notwithstanding the above, the Operating Partnership may, in its sole
discretion, elect not to complete the acquisition of all or any portion of the
Interests of any Contributor only in the event that such Contributor specifies,
in its Assignment delivered pursuant to Section 1.5, a breach of or other
exception with respect to Article 2 hereof or has otherwise materially breached
this Contribution Agreement (any such Contributor, a "NON-COMPLYING
CONTRIBUTOR"), in which case the Operating Partnership shall, in lieu of the
delivery with respect to such Contributor pursuant to clause (a) above, notify
the Closing Agent of such election and direct the Closing Agent to return such
Contributor's Closing Documents and Ancillary Agreements (as defined below) to
such Contributor. The election of the Operating Partnership to not acquire all
or any portion of the Interests of a particular Non-Complying Contributor shall
not affect the obligations of any other Contributor hereunder, including any
other Non-Complying Contributor.
The risk of loss to an Asset Entity's Assets prior to Closing shall be
borne by such Asset Entity. If, prior to the Final Closing, any of an Asset
Entity's Assets shall be destroyed or damaged by fire or other casualty, then
this Agreement may, at the option of the Operating Partnership, be terminated
with respect to the Asset Entity, the Assets of which have been destroyed or
damaged. If, after the occurrence of any such casualty affecting an Asset
Entity's Assets, this Agreement is not so terminated relative to such Asset
Entity, the Operating Partnership may elect to (a) purchase the given
Contributors' Interests in such Asset Entity or Assets, as the case may be, and
(b) direct such Contributors to pay or cause to be paid to the Operating
Partnership any sums collected under any policies of insurance because of damage
due to such casualty and otherwise assign to the Operating Partnership all
rights to collect such sums as may then be uncollected; provided, however, that
the Contributor shall not adjust or settle any insurance claim without the
Operating Partnership's prior written consent, not to be unreasonably withheld
or delayed. Under such circumstances, the Consideration payable upon such
purchase shall be reduced by the amount of any deductibles under the applicable
insurance policies.
If the IPO Closing does not occur by the earlier of (a) fifteen (15)
business days after the date of the Initial Closing and (b) the Termination
Date, then, except as set forth in Section 1.8 hereof, neither party shall have
any obligations under the Closing Documents or under any agreements or
instruments executed in connection with the transactions contemplated hereunder
or thereunder (such other agreements or
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instruments, collectively, "ANCILLARY AGREEMENTS"), this Contribution Agreement,
the Closing Documents and the Ancillary Agreements shall be deemed null and void
AB INITIO and the Closing Agent will be, and is hereby, directed to destroy the
Closing Documents and any Ancillary Agreement it holds and return to the
Operating Partnership the Consideration, if any, delivered by the Operating
Partnership to the Closing Agent.
1.5 DOCUMENTS TO BE DELIVERED AT CLOSING. At the Initial Closing, each
Contributor shall, directly or through the attorney-in-fact appointed pursuant
to Article V hereof, execute, acknowledge where deemed desirable or necessary by
the Operating Partnership, and deliver to the Closing Agent, in addition to any
other documents mentioned elsewhere herein, the following:
(a) An Assignment of Interests (the "ASSIGNMENT"), which
assignment shall be in a form satisfactory to the Operating Partnership, shall
contain a warranty of title that such Contributor owns such Contributor's
Interests free and clear of all Encumbrances (as defined in Section 2.1 hereof),
except, where applicable, for the Permitted Encumbrances (as defined in Section
2.1 hereof) and shall either (i) reaffirm the accuracy of all representations
and warranties and the satisfaction of all covenants made by such Contributor in
Article II hereof or (ii) if such reaffirmation cannot be made, identify those
representations, warranties and covenants of Article II hereof (other than
Section 2.5 hereof) with respect to which circumstances have changed, represent
that such Contributor has used all reasonable efforts within its control to
prevent and remedy such breach, and reaffirm the accuracy of all other
representations and warranties and the satisfaction of all other covenants made
by such Contributor in Article II hereof.
(b) Any other documents reasonably requested by the Operating
Partnership or reasonably necessary or desirable to assign, transfer and convey
such Contributor's Interests and effectuate the transactions contemplated
hereby, including, without limitations, deeds, assignments of ground leases and
space leases (as applicable), Xxx Xxxx Xxxx xxx Xxx Xxxx Xxxxx transfer tax and
gains tax returns and any other filings with any applicable governmental
jurisdiction in which the Operating Partnership is required to file its
partnership documentation or the recording of the Assignment is required.
1.6 CESSATION OF IPO. If at any time the Operating Partnership or the
underwriter or underwriters determine in good faith to abandon the formation of
the REIT or the IPO (the date of such determination being referred to as the
"CESSATION DATE"), the Operating Partnership will so advise each Contributor in
writing and thereupon all parties hereto will be relieved of all obligations
under this Contribution Agreement, all Ancillary
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Agreements, and all Closing Documents (except for obligations arising under
Sections 1.7, 2.5 and 3.2 hereof).
1.7 CLOSING COSTS. The Operating Partnership agrees to pay all of the
closing costs, other than Contributor's legal fees, arising from the transfer of
the Interests of each Contributor pursuant to the exercise by the Operating
Partnership of its Contribution Right, including, without limitation, any
applicable transfer, gains and sales taxes and any transfer fee due in
connection with the assumption of existing mortgage debt by the Operating
Partnership.
1.8 DEFAULT. (a) If, after notifying the Contributors of a date for the
Initial Closing, the Operating Partnership fails to close (including a failure
due to the IPO Closing not occurring), then the Operating Partnership will pay
to each Contributor the sum of $100.00 as liquidated and agreed-upon damages.
It would be difficult, if not impossible, to ascertain the actual measure of
each Contributor's damages in the event of the Operating Partnership's default
and the parties agree that $100.00 is a fair reflection of each Contributor's
damages in the event of the Operating Partnership's default.
(b) If any Contributor defaults with respect to its
obligations under this Agreement, the Operating Partnership shall be entitled to
exercise against each such Contributor any and all remedies provided at law or
in equity, including but not limited to, the right to specific performance. No
default by any Contributor hereunder shall in any way limit or affect the
obligations of any other Contributor hereunder.
1.9 FURTHER ASSURANCES. Each Contributor will, from time to time,
execute and deliver to the Operating Partnership all such other and further
instruments and documents and take or cause to be taken all such other and
further action as the Operating Partnership may reasonably request in order to
effect the transactions contemplated by this Agreement, including instruments or
documents deemed necessary or desirable by the Operating Partnership to effect
and evidence the conveyance of such Contributor's Interests in accordance with
the terms of this Contribution Agreement. The provisions of this Section 1.9
shall survive the Final Closing.
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ARTICLE II. REPRESENTATIONS, WARRANTIES
AND COVENANTS OF CONTRIBUTORS
As a material inducement to the Operating Partnership to enter into this
Contribution Agreement and to consummate the transactions contemplated hereby,
each Contributor hereby severally makes to the Operating Partnership 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 complete
the acquisition of any Contributor's Interests after the exercise of the
Contribution Right, such representations and warranties must continue to be true
as of the date of the Initial Closing and as of the date of the Final Closing.
2.1 TITLE TO INTERESTS. Each Contributor owns its Interests
beneficially and of record, free and clear of any claim, lien, pledge, voting
agreement, option, charge, security interest, mortgage, deed of trust,
encumbrance, rights of assignment, purchase rights or other rights of any nature
whatsoever (collectively, "Encumbrances"), except as disclosed as exceptions in
a title report for real property owned by an Asset Entity, dated on or after
April 15, 1997, provided such title exceptions are satisfactory to the Operating
Partnership in its sole discretion, and as set forth on EXHIBIT D attached
hereto (any such encumbrance, a "Permitted Encumbrance"), and has full power and
authority to convey free and clear of any Encumbrances (except, where
applicable, the Permitted Encumbrances), its Interests and, upon delivery of any
Assignment by such Contributor conveying its Interests and delivery of
Consideration for such Interests as herein provided, the Operating Partnership
will acquire 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 and, where applicable, the Permitted
Encumbrances. No Contributor will consent to join in or in any way effect the
transfer of any Asset prior to the Final Closing. At the Final Closing, if so
requested, Contributors will execute all documents necessary to enable a title
insurance company (acceptable to the Operating Partnership, in its sole
discretion) to issue to the Operating Partnership an ALTA Form B (1987 or later)
Owner's Policy and such endorsements as the Operating Partnership may reasonably
request, insuring fee simple and/or leasehold title to all real property and
improvements comprising all or any part of the Assets to the Operating
Partnership; provided that each Contributor's cost of complying with this
requirement shall be limited to ten percent of the Consideration to be received
by such Contributor, which amount shall be deducted from such Consideration at
the Final Closing. Each of such Contributor's Interests have been validly
issued and Contributor has funded (or will fund before the same is past due) all
capital contributions
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and advances to the partnership or other entity in which such Interest
represents an interest that are required to be funded or advanced prior to the
date hereof and the date of the Initial Closing and the Final Closing. There
are no agreements, instruments or understandings with respect to any of such
Contributor's Interests except as set forth in the partnership agreement of the
partnership in which an Interest represents a limited partner or general partner
interest or as disclosed in writing to the Operating Partnership. Such
Contributor has no interest, either direct or indirect, in any of the Assets
except for (a) the Interests owned by it which are the subject of this
Contribution Agreement, (b) the Excluded Interests, where applicable, and (c)
direct or indirect interests in partnerships or other entities which are
themselves Contributors hereunder. Such Contributor covenants that no
Encumbrance on his Interests (except, where applicable, the Permitted
Encumbrances) will be in existence as of the date of the Final Closing. In
making the representations in this Section 2.1 regarding the absence of
Encumbrances, each Contributor may assume that the consents and waivers of
rights set forth in Section 5.10 hereof have been given by all partners of
partnerships in which such Contributor's Interest represent direct or indirect
interests. Notwithstanding anything to the contrary contained herein, to the
extent that the Contributor's Interests transferred hereunder constitute
interests in partnerships or other entities ("Continuing Partnerships") which
will continue in existence after the consummation of the transactions
contemplated hereby, such Interests are and will remain subject to the terms and
provisions of the partnership or other organizational agreements (as amended) of
the Continuing Partnerships, including without limitation, restrictions,
options, priorities and partnership loans provided for therein.
2.2 AUTHORITY. Such Contributor has full right, authority, power and
capacity: (a) to enter into this Contribution Agreement and each agreement,
document and instrument to be executed and delivered by or on behalf of such
Contributor pursuant to this Contribution Agreement; (b) to carry out the
transactions contemplated hereby and thereby; and (c) to transfer, convey,
assign and deliver all of such Contributor's Interests to the Operating
Partnership upon delivery to such Contributor of the Consideration therefor in
accordance with this Contribution Agreement. This Contribution Agreement and
each agreement, document and instrument executed and delivered by or on behalf
of such Contributor pursuant to this Contribution Agreement constitutes, or when
executed and delivered will constitute, the legal, valid and binding obligation
of such Contributor, each enforceable in accordance with their respective terms.
Except for any breaches, violations or defaults which will be waived or cured
prior to the Initial Closing and all loans, indentures, creditor agreements or
other agreements which will be discharged or repaid prior to or
contemporaneously with the IPO Closing, the
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execution, delivery and performance of this Contribution Agreement and each such
agreement, document and instrument by or on behalf of such Contributor: (a) does
not and will not violate such Contributor's partnership agreement, operating
agreement, declaration of trust, charter or bylaws, if applicable, or other
organizational documentation; (b) does not and will not violate any foreign,
federal, state, local or other laws applicable to or binding on 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 or which does not remain in effect; and (c) does
not and will not result in a breach of, constitute a default under, accelerate
any obligation under or give rise to a right of termination of, any indenture or
loan or credit agreement or any other agreement, contract, instrument, mortgage,
lien, 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 any partnership
in which an Interest of such Contributor represents an interest. In making the
representations set forth in this Section 2.2, each Contributor may assume that
the consents and waivers of rights set forth in Section 6.10 hereof have been
given by all partners of partnerships or owners of voting interests in entities
in which such Contributor's Interests represent direct or indirect interests.
2.3 LITIGATION. There is no litigation or proceeding, either judicial
or administrative, pending or overtly threatened, affecting all or any portion
of such Contributor's Interests or such Contributor's ability to consummate the
transactions contemplated hereby. 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 its
Interests, which in any such case would impair such Contributor's ability to
enter into and perform all of its obligations under this Contribution Agreement.
2.4 NO OTHER AGREEMENTS TO SELL. Such Contributor has not made any
agreement with, and will not enter into any agreement with, and has no
obligation (absolute or contingent) to, any person or firm other than the
Operating Partnership (a) to sell, transfer or in any way encumber (except for
Permitted Encumbrances) any of such Contributor's Interests or to not sell such
Contributor's Interests, or (b) to enter into any agreement with respect to a
sale, transfer or encumbrance or put or call right with respect to such
Contributor's Interests. In making the representations set forth in this
Section 2.4, the Contributor may assume that the consents and waivers of rights
set forth in Section 6.10 hereof have been given by all partners of the Asset
Entities.
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2.5 NO BROKERS. Such Contributor has not entered into, and covenants
that it will not enter into, any agreement, arrangement or understanding with
any person or firm 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 and such Contributor shall
indemnify and hold harmless the Operating Partnership for all costs and expenses
incurred by the Operating Partnership as a result of a breach of this
representation. The provisions of this Section 2.5 shall survive termination of
this Contribution Agreement.
2.6 INVESTMENT REPRESENTATIONS AND WARRANTIES. Each Contributor who is
receiving Units represents and warrants as follows:
(a) Upon the issuance of Units to such Contributor, such
Contributor shall become subject to, and shall be bound by, the terms and
provisions of the agreement of limited partnership of the Operating Partnership
(in substantially the form attached hereto as Exhibit E) (the "Partnership
Agreement"), including the terms of the power of attorney contained in Section
15.11 thereof, as the Partnership Agreement may be amended from time in
accordance with its terms.
(b) Such Contributor understands the risks of, and other
considerations relating to, the purchase of the Units. Such 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 the Units, 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 an investment in the Operating Partnership and of making an
informed investment decision, (ii) is capable of protecting its own interest or
has engaged representatives or advisors to assist it in protecting its interests
and (iii) is capable of bearing the economic risk of such investment. If such
Contributor retained a person to represent or advise it with respect to the
investment in Units that may be made hereby then, at Contributor's request, such
Contributor shall, prior to or at the Initial 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 are reasonably requested by the Operating Partnership.
(c) Such Contributor understands that an investment in the
Operating Partnership involves substantial risks. Such Contributor has been
given the opportunity to make a thorough investigation of the proposed
activities of the Operating Partnership and has been furnished with materials
relating to the
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Operating Partnership and its proposed activities. Such Contributor has been
afforded the opportunity to obtain any additional information deemed necessary
by such Contributor to verify the accuracy of any representations made or
information conveyed to such Contributor. Such Contributor confirms that all
documents, records, and books pertaining to its investment in the Operating
Partnership and requested by such Contributor have been made available or
delivered to such Contributor. Such Contributor has had an opportunity to ask
questions of and receive answers from the Operating Partnership, or from a
person or persons acting on the Operating Partnership's behalf, concerning the
terms and conditions of this investment. Such Contributor has relied and is
making its investment decision upon written information provided to the
Contributor by or on behalf of the Operating Partnership and/or Contributor's
position (in the case of certain individual Contributors) as a director or
executive officer of the REIT.
(d) The Units to be issued to such Contributor will be acquired
by such Contributor for its own account (or if such Contributor is a trustee,
for a trust 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, without prejudice, however, to such
Contributor's right (subject to the terms of the Units) at all times to sell or
otherwise dispose of all or any part of its Units under an exemption from such
registration available under the Securities Act of 1933, as amended (the
"SECURITIES ACT"), and applicable state securities laws, and subject,
nevertheless, to the disposition of its assets being at all times within its
control. Such Contributor was not formed for the specific purpose of acquiring
an interest in the Operating Partnership.
(e) Such Contributor acknowledges that (i) the Units to be
issued to such Contributor 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 Units are represented by certificates, such certificates will bear a
legend to such effect, (ii) the REIT'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 such Contributor contained herein, (iii) such
Units, therefore, cannot be resold unless registered under the Securities Act
and applicable state securities laws, or unless an exemption from registration
is available, (iv) there is no public market for such Units, and (v) the
Operating Partnership has no obligation or intention to register such Units for
resale 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. Such Contributor hereby acknowledges that because of
the restrictions on transfer or
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assignment of such Units to be issued hereunder which will be set forth in the
Partnership Agreement and/or in a Registration Rights Agreement (as defined in
Section 5.1 hereof), such Contributor may have to bear the economic risk of the
investment commitment evidenced by this Contribution Agreement and any Units
acquired hereby for an indefinite period of time, although (i) under the terms
of the Partnership Agreement, as it will be in effect at the time of the IPO,
Units will be redeemable at the request of the holder thereof at any time after
the second anniversary of their issuance for cash or (at the option of the REIT)
for Common Stock of the REIT and (ii) the holder of any such Common Stock issued
upon a presentation of Units for redemption will be afforded certain rights to
have such Common Stock registered for resale under the Securities Act or
applicable state securities laws under the Registration Rights Agreement as
described more fully below.
(f) The information set forth in the investor questionnaire (a
form of which is attached hereto as Exhibit F) (the "Investor Questionnaire")
which has been completed and executed by such Contributor and delivered to the
Operating Partnership on the date hereof is true, correct and complete.
2.7 FIRPTA REPRESENTATION. Contributor is not a "foreign person" within
the meaning of Section 1445 of the Internal Revenue Code of 1986, as amended.
2.8 ADDITIONAL REPRESENTATIONS OF CERTAIN CONTRIBUTORS. Certain
Contributors or affiliates thereof (collectively, the "INDEMNITORS") shall enter
into a supplemental agreement (the "SUPPLEMENTAL AGREEMENT") on terms mutually
acceptable to the Indemnitors and the Operating Partnership whereby the
Indemnitors make additional representations, warranties and covenants with
respect to matters relating to this Contribution Agreement which shall survive
the consummation of the transactions contemplated by this Contribution Agreement
for a period equal to one (1) year from the date of the Final Closing and shall
expire with, and be terminated and extinguished forever, at such time except
with respect to claims asserted by written notice of or on behalf of the
Operating Partnership at any time during such period against any Indemnitor
making such representations, warranties or covenants. The Supplemental
Agreement shall provide that (a) the maximum aggregate liability of all
Indemnitors for any misrepresentation or misrepresentations or any breach or
breaches of any one or more of the representations, warranties or covenants set
forth therein shall total equal the value of the Units received by such
Indemnitors on the closing of the IPO, (b) any such liability shall be joint
and several to each of the Indemnitors, (c) the Operating Partnership shall make
no claim thereunder against any Indemnitor and no such Indemnitor shall have
liability resulting from claims or other assertions of liability arising from
the Supplemental Agreement unless and until such claim or claims exceed $250,000
in the aggregate, and
12
(d) recourse thereunder shall be limited to the Indemnitors' Units.
2.9 COVENANT TO REMEDY BREACHES. Each Contributor covenants to use all
reasonable efforts within its control (a) to prevent the breach of any
representation or warranty of such Contributor hereunder, (b) to satisfy all
covenants of such Contributor hereunder and (c) to promptly cure any breach of a
representation, warranty or covenant of such Contributor hereunder upon its
learning of same.
ARTICLE III. REPRESENTATIONS, WARRANTIES AND COVENANTS
OF OPERATING PARTNERSHIP
As a material inducement to each Contributor to enter into this
Contribution Agreement and to consummate the transactions contemplated hereby,
the Operating Partnership hereby makes to each Contributor each of the
representations and warranties set forth in this Article III, which
representations and warranties shall be true as of the date hereof, as of the
date of the Initial Closing and as of the date of consummation of the Final
Closing.
3.1 AUTHORITY. The Operating Partnership has full right, authority,
power and capacity: (a) to enter into this Contribution Agreement and each
agreement, document and instrument to be executed and delivered by or on behalf
of it pursuant to this Contribution Agreement; (b) to carry out the transactions
contemplated hereby and thereby; and (c) to issue Units to each Contributor to
the extent called for in accordance with the terms of this Contribution
Agreement. This Contribution Agreement and each agreement, document and
instrument executed and delivered by the Operating Partnership pursuant to this
Contribution Agreement constitutes, or when executed and delivered will
constitute, the legal, valid and binding obligation of the Operating
Partnership, each enforceable in accordance with their respective terms. The
execution, delivery and performance of this Contribution Agreement and each such
agreement, document and instrument by the Operating Partnership: (a) does not
and will not violate the Partnership Agreement; (b) does not and will not
violate any foreign, federal, state and local or other laws applicable to
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 (c) does not
and will not result in a breach of, constitute a default under, accelerate any
obligation under or give rise to a right of termination of, any indenture or
loan or credit agreement or any other agreement, contract, instrument, mortgage,
lien, lease, permit, authorization, order, writ, judgment, injunction, decree,
determination or arbitration award to which
13
the Operating Partnership is a party or by which the property of the Operating
Partnership is bound or affected.
3.2 NO BROKERS. The Operating Partnership represents that it has not
entered into, and covenants that will not enter into, any agreement, arrangement
or understanding with any person or firm 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 IV. CLOSING ADJUSTMENTS
4.1 PRORATIONS. In the case of (i) each Asset Entity which is itself a
Contributor and (ii) each Asset Entity in which the Operating Partnership
acquires an interest pursuant to this Contribution Agreement, the Operating
Partnership and such Asset Entity shall make the prorations set forth below, and
make payment with respect to such prorations as appropriate. To the extent an
Asset Entity ceases to have a separate legal existence as a result of the
transactions contemplated hereunder, those Contributors who held interests in
such Asset Entity shall collectively exercise the rights of such Asset Entity,
and succeed to the obligations of such Asset Entity, under this Contribution
Agreement from and after the Final Closing.
(a) TAXES. Real property taxes and general and special
assessments, water and sewer rents, tap charges, and business improvements
district charges upon the Asset shall be adjusted and prorated as of the date of
the Final Closing on the basis of the fiscal year for such taxes and assessments
(the "TAX YEAR"). If the Final Closing shall occur before the real property tax
rate for the Tax Year is fixed, the apportionment of taxes shall be made on the
basis of the taxes assessed for the preceding Tax Year. After the real property
taxes are finally fixed for the Tax Year in which the Final Closing occurs, the
Operating Partnership and such Asset Entity shall make a recalculation of the
apportionment of such taxes, and the Operating Partnership or the Asset Entity,
as the case may be, shall make an appropriate payment to the other based on such
recalculation. To the extent that either the Asset Entity or the Operating
Partnership shall obtain any real estate tax abatement, reduction, refund or
incentive with respect to the Asset, the amount of the net proceeds of such tax
abatement, reduction, refund or incentive shall be prorated through the date of
the Final Closing if, as, and when such proceeds are paid by the applicable
governmental taxing authority (it being understood that to the extent any tenant
demising space in the Asset owned by such Asset Entity shall be entitled to any
portion of such tax abatement, that such portion shall be turned over to the
Operating Partnership to remit to such tenant and shall be deducted from any tax
abatement, reduction, refund or incentive
14
proceeds in connection with calculating the net proceeds thereof).
(b) RENTS. Rents, additional rents, including electricity
charges, operating expense recoveries, and tax reimbursements under the leases
affecting the Asset (collectively, "RENTS") shall be adjusted and prorated as of
the date of the Final Closing. Rents collected after the date of the Final
Closing from tenants whose rental was delinquent on the date of the Final
Closing shall be deemed to apply first to current rents due at the time of
payment and second to past due rents accruing after the Final Closing and last
to the rents which were past due on the date of the Final Closing. Unpaid and
past due rents to which the Asset Entity is entitled shall be promptly paid over
to the Asset Entity if collected by the Operating Partnership after the date of
the Final Closing, less any reasonable collection costs actually incurred by the
Operating Partnership.
(c) PREPAYMENTS. Any prepayment made by or on behalf of the
Asset Entity under any service, maintenance, management, consulting, or similar
contracts shall be adjusted and prorated as of the date of the Final Closing.
(d) EXPENSES. Charges and assessments for sewer and water and
other utilities, including charges for consumption of electricity, steam and gas
(Unless the Operating Partnership elects to have final meter readings made as of
the Final Closing in which event the adjustment shall be made based on such
meter readings); current operating expenses, including, without limitation,
obligations under any service, maintenance, management, consulting, or similar
contracts; payroll and related expenses (including all benefits and vacation and
sick days); license and permit fees relating to the operation of the Asset;
insurance and bond premiums; and any other charges incident to the ownership,
use and/or occupancy of the Assets shall be adjusted and prorated as of the date
of the Final Closing.
(e) INTEREST ON EXISTING MORTGAGES. Interest on existing
mortgages encumbering any Assets shall be adjusted and prorated as of the date
of the Final Closing.
(f) FUEL AND MAINTENANCE SUPPLIES STORED ON SITE. The costs of
purchasing fuel and maintenance supplies stored on site shall be adjusted and
prorated as of the date of the Final Closing.
(g) RELETTING EXPENSES FOR NEW LEASES. Customary reletting
expenses (including without limitation, brokerage commissions, tenant
improvements and moving expenses paid to the Asset Entity) for leases entered
into after the date hereof and prior to the Final Closing shall be adjusted and
prorated over
15
the base term of the applicable lease and based upon prices in effect on or
immediately prior to the date of the Final Closing.
4.2 ASSET ENTITY'S RETAINED ITEMS. All cash on hand, working capital,
escrow and reserve accounts other than tenant security deposits, and utility or
other deposits shall be distributed by the Asset Entity to its current
shareholders, partners or members, as applicable, prior to the Final Closing.
4.3 ACCOUNTS RECEIVABLE. The Asset Entity shall retain all accounts
receivable and other income items other than Rents which are attributable to
periods prior to the date of the Final Closing. The Asset Entity shall deliver
to the Operating Partnership at the Final Closing a schedule of all such unpaid
accounts receivable and other income items as of the date of the Final Closing.
All such accounts receivable and other income items collected by or for the
Operating Partnership after the date of the Final Closing which are attributable
to periods prior to the date of the Final Closing shall be promptly remitted to
the order of the Asset Entity. Except for sums actually received by the
Operating Partnership pursuant to the immediately preceding sentence, the
Operating Partnership shall assume no obligation to collect or enforce the
payment of any amounts that may be due to the Asset Entity, except that the
Operating Partnership shall render reasonable assistance, at no expense to the
Operating Partnership, to the Asset Entity after the Final Closing in the event
the Asset Entity proceeds against any third-party to collect any accounts
receivable or other income items due the Asset Entity.
4.4 SECURITY DEPOSITS. An amount equal to all tenant security deposits
and interest thereon, if any, and any other amounts due tenants with respect to
such security deposits shall be paid over to the Operating Partnership at the
Final Closing.
4.5 TIMING OF CALCULATIONS; COOPERATION. Each Asset Entity and/or
Transferor Entity and the Operating Partnership agree to use reasonable efforts
to reconcile, prorate, and adjust all of the foregoing items upon the Final
Closing and, in all events within ninety (90) days after the date of the Final
Closing, to adjust and prorate such prorations and adjustments . In the event
any adjustments or prorations made pursuant to this Contribution Agreement are,
subsequent to Final Closing, found to be erroneous, then either party hereto who
is entitled to additional amounts shall invoice the other party for such
additional amounts as may be owing, and such amounts shall be paid promptly by
the other party upon receipt of invoice. Such invoice shall be accompanied by
reasonable substantiating evidence.
4.6 ALLOCATION OF ADJUSTMENTS. All adjustments contemplated by this
Article IV shall, to the extent practicable,
16
be made by adjusting (either up or down) the cash portion amount of the
Consideration and/or the number of Units issued to each Contributor by debiting
or crediting (as the case may be) such Contributor's Consideration with a
portion of the prorated items allocated to the Asset Entity in which the
Contributor owns an interest. The amount of an Asset Entity's adjustments
calculated pursuant to this Article V allocated to each Contributor shall be
that portion equal to that Contributor's pro rata equity interest in each Asset
Entity.
ARTICLE V. POWER OF ATTORNEY
5.1 GRANT OF POWER OF ATTORNEY. Each Contributor does hereby
irrevocably appoint Xxxxxxx X. Xxxxx, Xxxxxxxx X. Xxxxxxx, and the Operating
Partnership, and each of them individually and any successor thereof from time
to time (such persons or the Operating Partnership 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
such Contributor, to act in the name, place and stead of such Contributor:
(a) To enter into a registration rights agreement a form of
which is attached hereto as EXHIBIT G (the "REGISTRATION RIGHTS
AGREEMENT").
(b) To enter into a lock-up agreement (the "LOCK-UP AGREEMENT")
which provides that the Contributors will not, directly or indirectly,
offer, sell, offer to sell, contract to sell, grant any option to purchase
or otherwise dispose of (or announce any offer, sale, offer of sale,
contract of sale, grant of any option to purchase or other sale or
disposition of) any share of REIT Common Stock or any securities
convertible into or exchangeable for or substantially similar to REIT
Common Stock, for a period of one year from the IPO Closing without the
prior written consent of the managing underwriter named in the Lock-up
Agreement.
(c) To take for such Contributor all steps deemed necessary or
advisable by the Operating Partnership in connection with the registration
of the REIT's Common Stock under the Securities Act, including without
limitation (i) filing the Registration Statement and amendments thereto
under the Securities Act which shall describe the benefits to be received
by such Contributor in connection with the formation of the REIT and the
IPO, (ii) distributing a preliminary prospectus and prospectus regarding
the IPO (the "PRELIMINARY PROSPECTUS" and "PROSPECTUS") which contain such
information as is deemed necessary or desirable to lawfully effect the
initial public offering of such shares,
17
and (iii) to take such other steps as the Attorney-in-Fact may deem
necessary or advisable.
(d) To make, execute, acknowledge and deliver all such other
contracts, orders, receipts, notices, requests, instructions, certificates,
consents, letters and other writings (including without limitation the
execution of Closing Documents, Ancillary Agreements, the Partnership
Agreement, any other documents relating to the acquisition by the Operating
Partnership of such Contributor's Interests, and any consents contemplated
by Section 6.10 hereof) and, in general, to do all things and to take all
action which the Attorney-in-Fact in its sole discretion may consider
necessary or proper in connection with or to carry out the transaction
contemplated by this Contribution Agreement, the Ancillary Agreements, if
any, and the Closing Documents as fully as could such Contributor if
personally present and acting.
(e) To make, acknowledge, verify and file on behalf of such
Contributor applications, consents to service of process and such other
undertakings or reports as may be required by law with state commissioners
or officers administering state securities or Blue Sky laws and to take any
other action required to facilitate the exemption for registration of the
Units and the qualification of the REIT's Common Stock under the securities
or Blue Sky laws of the jurisdictions in which the Units and the REIT's
Common Stock are to be offered.
The Power of Attorney granted by each Contributor pursuant to this Article
V and all authority conferred hereby is granted and conferred subject to and in
consideration of the interests of the Operating Partnership, the REIT and the
other Contributors and is for the purpose of completing the transactions
contemplated by this Contribution Agreement. The Power of Attorney shall
terminate upon termination of this Contribution Agreement. The Power of
Attorney of each Contributor granted hereby and all authority conferred hereby
is coupled with an interest and therefore shall be irrevocable and shall not be
terminated by any act of such Contributor or by operation of law, whether by the
death, disability, incapacity or liquidation of such Contributor or by the
occurrence of any other event or events (including without limitation the
termination of any trust or estate for which such Contributor is acting as a
fiduciary or fiduciaries), and if, after the execution hereof, such Contributor
shall die or become disabled or incapacitated or is liquidated, or if any other
such event 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 death, disability, incapacity, liquidation or other event
18
or events had not occurred and regardless of notice thereof. Each Contributor
acknowledges that Xxxxxxx X. Xxxxx, Xxxxxxxx X. Xxxxxxx and the Operating
Partnership have, and any successor thereof acting as Attorney-in-Fact may have
an economic interest in the transactions contemplated by this Contribution
Agreement. Each Contributor agrees that, at the request of the Operating
Partnership, it will promptly execute a separate power of attorney on the same
terms set forth in this Article VI, such execution to be witnessed and
notarized.
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 granted by each Contributor hereby. The Attorney-in-Fact makes no
representations with respect to and shall have no responsibility for the
formation of the REIT, the acquisitions of the Interests by the Operating
Partnership, the Registration Statement, the Prospectus or any Preliminary
Prospectus, nor for any aspect of the offering of the REIT's Common Stock, and
it shall not be liable for any error of 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. Each Contributor agrees that the Attorney-in-Fact may consult with
counsel of its own choice (who may be counsel for the Operating Partnership or
the REIT) 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 the Contributor
hereunder, release, amend or modify any other Power of Attorney granted by any
other Contributor hereunder or by any other person under any related agreement.
The provisions of this Section 5.2 shall not limit or otherwise affect the
obligations of the Operating Partnership (acting for itself and not as
Attorney-in-Fact) under the other Articles of this Contribution Agreement.
5.3 RATIFICATION; THIRD PARTY RELIANCE. Each Contributor does hereby
ratify and confirm all that the Attorney-in-Fact shall lawfully do or cause to
be done by virtue of the exercise of the powers granted unto it by such
Contributor hereunder, and such Contributor authorizes the reliance of third
parties on this Power of Attorney and waives its rights, if any, as against any
such third party for its reliance hereon.
ARTICLE VI. CONTRIBUTORS
6.1 AMENDMENT. Any amendment hereto shall be effective only against
those parties hereto who have acknowledged in writing their consent to such
amendment, provided that the Operating Partnership may amend this Contribution
Agreement without notice to or the consent of any Contributor (a) for the
19
purpose of adding additional Contributors as parties hereto or deleting
Contributors as parties hereto and conforming Exhibit A in connection with such
additions or deletions and (b) to conform any Contributor's Supplemental
Acquisition Exhibit to the extent the interests set forth therein do not
accurately or completely reflect the Interest of such Contributor in the Asset
Entities or (in the case of Contributors which are themselves Asset Entities)
their Properties. No waiver of any provisions of this Contribution 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 Contribution
Agreement and all Ancillary Agreements (a) constitute the entire agreement and
supersede conflicting provisions set forth in all other 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 conflict of law provisions thereof.
6.3 ASSIGNABILITY. This Contribution 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 Contribution Agreement may not be assigned (except by
operation of law) by any party without the prior written consent of the other
parties, and any attempted assignment without such consent shall be void and of
no effect.
6.4 TITLES. The titles and captions of the Articles, Sections and
paragraphs of this Contribution Agreement are included for convenience of
reference only and shall have no effect on the construction or meaning of this
Contribution Agreement.
6.5 THIRD PARTY BENEFICIARY. No provision of this Contribution
Agreement is intended, nor shall it be interpreted, to provide or create any
third party beneficiary rights or any other rights of any kind in any customer,
affiliate, stockholder, partner, member, director, officer or employee of any
party hereto or any other person or entity, provided, however, that Sections
5.3, 6.3 and 6.10 of this Contribution Agreement shall be enforceable by and
shall inure to the benefit of the persons described therein.
6.6 SEVERABILITY. If any provision of this Contribution Agreement, or
the application thereof, is for any reason held to any extent to be invalid or
unenforceable, the remainder of this Contribution Agreement and application of
such provision to other
20
persons or circumstances will be interpreted so as reasonably to effect the
intent of the parties hereto. The parties further agree to replace such void or
unenforceable provision of this Contribution 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. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Contribution
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Contribution
Agreement and to enforce specifically the terms and provisions hereof in any
federal or state court located in 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 Contribution Agreement
or otherwise at law or in equity.
6.8 ATTORNEYS' FEES. In connection with any litigation or a court
proceeding arising out of this Contribution Agreement, the prevailing party
shall be entitled to recover all costs incurred, including reasonable attorneys'
fees and legal assistants' fees and costs whether incurred prior to trial, at
trial, or on appeal.
6.9 NOTICES. Any notice or demand which must or may be given under this
Contribution Agreement or by law shall, except as otherwise provided, be in
writing and shall be deemed to have been given (a) when physically received by
personal delivery (which shall include the confirmed receipt of a telecopied
facsimile transmission), or (b) three (3) business days after being deposited in
the United States certified or registered mail, return receipt requested,
postage prepaid, or (c) one (1) business day after being deposited with a
nationally known commercial courier service providing next day delivery service
(such as Federal Express); addressed and delivered or telecopied in the case of
a notice to the Operating Partnership at the following address and telecopy
number:
XX Xxxxx Operating Partnership, L.P.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx
Phone: 000-000-0000
Telecopy: 000-000-0000
with copies to:
21
Xxxxx & Xxxx LLP
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Phone: 000-000-0000
Telecopy: 212-839-5599
Greenberg, Traurig, Hoffman,
Lipoff, Xxxxx & Xxxxxxx
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Ivanhoe
Phone: 000-000-0000
Telecopy: 000-000-0000
and addressed and delivered or telecopied, in the case of a notice to a
Contributor, at the address and telecopy number set forth under such
Contributor's name in the Contributor's Signature Page hereto.
6.10 WAIVER OF RIGHTS; CONSENTS WITH RESPECT TO PARTNERSHIP INTERESTS.
(a) Each Contributor acknowledges that the agreements contained
herein and the transactions contemplated hereby and any actions taken in
contemplation of the transactions contemplated hereby may conflict with, and may
not have been contemplated by, the partnership agreement of one or more
partnerships in which one or more of such Contributor's Interests represents a
direct or indirect interest or another agreement among one or more holders of
such Interests or one or more of the partners of any such partnership. With
respect to each partnership in which an Interest of a Contributor represents a
direct or indirect interest, each Contributor expressly gives all Consents (and
any consents necessary to authorize the proper parties in interest to give all
Consents) and Waivers necessary or desirable to facilitate any Conveyance Action
relating to such partnership (as such terms are hereinafter defined).
As used herein, the term "CONVEYANCE ACTION" means, with respect to any
partnership having a direct or indirect ownership interest in any Asset, (i) 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 hereunder) of its direct or indirect interest in such partnership to
the Operating Partnership or (ii) the entering into by any such partner or
holder of any agreement relating to (x) the formation of the Operating
Partnership or the REIT, or (y) the direct or indirect acquisition by the
Operating Partnership of any such direct or indirect interest or (iii) the
taking by any
22
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): any sale or distribution to any
person of a direct or indirect interest in such partnership, the entering into
any agreement with any person that grants to such person the right to purchase a
direct or indirect interest in such partnership, and the giving of the Consents
and Waivers contained in this Section 6.10 or consents or waivers similar
thereto in form or purpose. As used herein, the term "CONSENTS" means, with
respect to any such partnership, any consent necessary or desirable under the
partnership agreement of such partnership or any other agreement among all or
any of the holders of interests therein or any other agreement relating thereto
or referred to therein (i) to permit any and all Conveyance Actions relating to
such partnership or to amend such partnership agreement and/or other agreements
so that no provision thereof prohibits, restricts, impairs or interferes with
any Conveyance Action (such amendments to include, without limitation, the
deletion of provisions which cause a default under such agreement if interests
therein are transferred for cash), (ii) to admit the Operating Partnership as a
substitute limited partner or general partner of such partnership upon the
Operating Partnership's acquisition of a limited or general partnership interest
therein, respectively, and to adopt such amendment as is necessary or desirable
to effect such admission, (iii) to adopt any amendment as may be deemed
desirable by the Operating Partnership, either simultaneously with or
immediately prior to the acquisition of any interest therein, and (iv) to
continue such partnership following the transfer of interest therein to the
Operating Partnership. As used herein, the term "WAIVERS" means, with respect
to a partnership of which an Interest of a Contributor represents a direct or
indirect interest, the waiving of any and all rights that such 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 such Contributor or other person
upon the occurrence of, a Conveyance Action relating to such partnership,
including, but not limited to, the following rights: rights of notice, rights to
response periods, rights to purchase the direct or indirect interests of another
partner in such partnership or to sell such Contributor's or other person's
direct or indirect interest therein to another partner, rights to sell such
Contributor's or other person's direct or indirect interest therein at a price
other than as provided herein, or rights to prohibit, limit, invalidate,
otherwise restrict or impair any such Conveyance Action or to cause a
termination or dissolution of such partnership because of such Conveyance
Action. Each Contributor further covenants that such 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 a partnership in which an Interest of
such Contributor represents a direct or indirect interest. The
23
Waivers and Consents contained in this Section 6.10 shall terminate upon the
termination of this Contribution Agreement, except as to transactions completed
hereunder prior to termination.
(b) Each Contributor by its execution hereof (i) with respect to
each Asset Entity in which an Interest owned by Contributor represents a direct
or indirect interest therein and with respect to which the Operating Partnership
acquires all of the ownership interests therein gives such consent as is
necessary to cause each such Asset Entity, as applicable, to have authority to
transfer the Assets of such Asset Entity to the Operating Partnership on such
terms and conditions as such Asset Entity and the Operating Partnership may
agree; and (ii) agrees that such Contributor's Consideration may be reduced to
reflect such direct transfer of assets and the consequent receipt of Units
directly by such Asset Entity, provided that the total consideration to be
received by such Contributor either directly hereunder or indirectly through the
receipt of Units by an Asset Entity shall not be less than Contributor's
Consideration.
(c) Each Contributor by its execution hereof gives such consent
as is necessary to cause, with respect to the partnership agreement of each
partnership in which an Interest of such Contributor represents, directly or
indirectly, a limited partner or general partner interest, an amendment thereto
to enable such partnership, to the extent permissible under applicable law, (i)
to admit the Operating Partnership as a substitute limited partner therein
and/or a substitute general partner therein if the Operating Partnership by the
exercise of its Contribution Right acquires a limited partnership interest or a
general partnership interest in such partnership, respectively, (ii) to redeem
the interest of any other partner therein who has not agreed to become a party
to this Contribution Agreement or a similar contribution agreement with the
Operating Partnership, (iii) to transfer to all partners thereof, including any
partner who has not agreed to become a party to this Contribution Agreement,
Units and/or cash (provided that such Contributor receives as a result of all
such distributions and the direct payment of consideration hereunder, an amount
of cash and/or Units that is in conformity with the Consideration of such
Contributor provided for herein), and thereafter, at the Operating Partnership's
option, to dissolve, and (iv) any such other amendment as the Operating
Partnership may deem desirable, provided that such amendment occurs
simultaneously with or immediately prior to the acquisition of the applicable
partnership interest and, provided further, that such amendment will not result
in any increased liability on the part of any Contributor hereunder or under the
applicable partnership agreement. The Attorney-in-Fact may on behalf of each
Contributor execute such consents, amendments or other
24
instruments as it deems necessary or desirable in connection with the foregoing.
6.11 CONFIDENTIALITY. All press releases or other public communications
of any kind relating to the IPO or the transactions contemplated herein, and the
method and timing of release for publication thereof, will be subject to the
prior written approval of the Operating Partnership.
6.12 COMPUTATION OF TIME. Any time period provided for herein which
shall end on a Saturday, Sunday or legal holiday shall extend to 5:00 p.m. of
the next full business day. All times are Eastern Time.
6.13 SURVIVAL. It is the express intention and agreement of the parties
hereto that the representations, warranties and covenants of each Contributor
set forth in this Contribution 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 Contributor under this Contribution Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
25
IN WITNESS WHEREOF, each of the parties hereto has executed this
Contribution Agreement, or caused the Contribution Agreement to be duly executed
on its behalf, as of the date first written above.
XX XXXXX OPERATING PARTNERSHIP, L.P.
By: XX XXXXX REALTY CORP.
Its General Partner
By: /s/Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chairman of the Board
and Chief Executive Officer
26
CONTRIBUTOR SIGNATURE PAGE
The undersigned, desiring to become one of the within named
Contributors to that certain Contribution Agreement by and among X.X. Xxxxx
Operating Partnership, L.P. and such Contributors, dated as of June 13, 1997,
hereby becomes a party to such Contribution Agreement. The undersigned agrees
that this signature page may be attached to any counterpart of said Contribution
Agreement.
HIPPOMENES ASSOCIATES LLC
By: /s/Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Member
Address of Contributor:
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone/Facsimile Numbers:
(000) 000-0000/000-0000
By the Contributor's execution of this Contribution Agreement, the
Contributor grants a Power of Attorney to certain individuals and to the
Operating Partnership hereunder pursuant to Article V.
27
CONTRIBUTOR SIGNATURE PAGE
The undersigned, desiring to become one of the within named
Contributors to that certain Contribution Agreement by and among X.X. Xxxxx
Operating Partnership, L.P. and such Contributors, dated as of June 13, 1997,
hereby becomes a party to such Contribution Agreement. The undersigned agrees
that this signature page may be attached to any counterpart of said Contribution
Agreement.
64-36 REALTY ASSOCIATES
By: X.X. Xxxxx Properties, Inc.,
General Partner
By: /s/Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
Address of Contributor:
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone/Facsimile Numbers:
(000) 000-0000/594-2262
By the Contributor's execution of this Contribution Agreement, the
Contributor grants a Power of Attorney to certain individuals and to the
Operating Partnership hereunder pursuant to Article V.
28
CONTRIBUTOR SIGNATURE PAGE
The undersigned, desiring to become one of the within named
Contributors to that certain Contribution Agreement by and among X.X. Xxxxx
Operating Partnership, L.P. and such Contributors, dated as of June 13, 1997,
hereby becomes a party to such Contribution Agreement. The undersigned agrees
that this signature page may be attached to any counterpart of said Contribution
Agreement.
673 FIRST ASSOCIATES, L.P.
By: 673 First Realty Corp.,
General Partner
By: /s/Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
Address of Contributor:
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone/Facsimile Numbers:
(000) 000-0000/000-0000
By the Contributor's execution of this Contribution Agreement, the
Contributor grants a Power of Attorney to certain individuals and to the
Operating Partnership hereunder pursuant to Article V.
29
CONTRIBUTOR SIGNATURE PAGE
The undersigned, desiring to become one of the within named
Contributors to that certain Contribution Agreement by and among X.X. Xxxxx
Operating Partnership, L.P. and such Contributors, dated as of June 13, 1997,
hereby becomes a party to such Contribution Agreement. The undersigned agrees
that this signature page may be attached to any counterpart of said Contribution
Agreement.
GREEN 6TH AVENUE ASSOCIATES, L.P.
By: X.X. Xxxxx Realty, Inc.
General Partner
By: /s/Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
Address of Contributor:
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone/Facsimile Numbers:
(000) 000-0000/594-2262
By the Contributor's execution of this Contribution Agreement, the
Contributor grants a Power of Attorney to certain individuals and to the
Operating Partnership hereunder pursuant to Article V.
30
CONTRIBUTOR SIGNATURE PAGE
The undersigned, desiring to become one of the within named
Contributors to that certain Contribution Agreement by and among X.X. Xxxxx
Operating Partnership, L.P. and such Contributors, dated as of June 13, 1997,
hereby becomes a party to such Contribution Agreement. The undersigned agrees
that this signature page may be attached to any counterpart of said Contribution
Agreement.
X.X. XXXXX REALTY, INC.
By: /s/Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
Address of Contributor:
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone/Facsimile Numbers:
(000) 000-0000/000-0000
By the Contributor's execution of this Contribution Agreement, the
Contributor grants a Power of Attorney to certain individuals and to the
Operating Partnership hereunder pursuant to Article V.
31
CONTRIBUTOR SIGNATURE PAGE
The undersigned, desiring to become one of the within named
Contributors to that certain Contribution Agreement by and among X.X. Xxxxx
Operating Partnership, L.P. and such Contributors, dated as of June 13, 1997,
hereby becomes a party to such Contribution Agreement. The undersigned agrees
that this signature page may be attached to any counterpart of said Contribution
Agreement.
By: /s/Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Address of Contributor:
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone/Facsimile Numbers:
(000) 000-0000/594-2262
By the Contributor's execution of this Contribution Agreement, the
Contributor grants a Power of Attorney to certain individuals and to the
Operating Partnership hereunder pursuant to Article V.
32
EXHIBIT A
CONTRIBUTORS
1. Hippomenes Associates, LLC
2. 64-36 Realty Associates
3. 673 First Associates, L.P.
4. Green 6th Avenue Associates, L.P.
5. XX Xxxxx Realty, Inc.
6. Xxxxxxx X. Xxxxx
33
EXHIBIT B
ASSET ENTITIES ASSET
-------------- -----
1.Praedium Bar LLC Mortgage interest in Bar Building
2.470 Park Avenue South Associates, L.A. Fee interest in 000 Xxxx Xxxxxx
Xxxxx
3.64-36 Realty Associates Fee interest in 00 X. 00xx Xxxxxx
4.673 First Associates, L.P. Net leasehold interest in 000 Xxxxx
Xxxxxx
5.1414 Management Associates, L.P. Fee interest in 0000 Xxxxxx xx
Xxxxxxxx
6.Emerald City Construction Corp. Construction business assets
0.XX Green Management Corp. Management business assets
0.XX Green Realty Inc. Leasing and tenant representation
business assets
34
EXHIBIT C
EXCLUDED INTERESTS
35
EXHIBIT D
PERMITTED ENCUMBRANCES
1. All borrowings assigned to a Contributor under the Credit Agreement,
dated as of March 27, 1997, between Green Realty LLC and Xxxxxx
Brothers Holdings Inc.
36
EXHIBIT E
Operating Partnership Agreement
37
EXHIBIT F
Investor Questionnaire
38
EXHIBIT G
Registration Rights Agreement
39
SUPPLEMENTAL ACQUISITION EXHIBIT
Hippomenes Associates LLC
ASSETS TO BE TRANSFERRED
100% member interest in Praedium Bar LLC
MINIMUM CONSIDERATION TO BE RECEIVED
The minimum consideration shall be a number of Units having a value, when
added to the sum of (i) the aggregate value of all other Units issued to
Contributors under the Contribution Agreement, (ii) the aggregate value of all
Units issued to 29/35 Realty Associates ("Realty Associates") under the Contract
of Sale, dated as of June 5, 1997, between the Operating Partnership and Realty
Associates and (iii) the product of (A) .65 times (B) the aggregate value of all
Units issued to 470 Park South Associates, L.P. ("Park South") under the
Contract of Sale, dated as of May 20, 1997, between the Operating Partnership
and Park South, equal to not less than $15 million. For purposes of the
foregoing, each Unit shall be deemed to have a value equal to the IPO price of a
share of Common Stock.
40
SUPPLEMENTAL ACQUISITION EXHIBIT
64-36 Realty Associates
ASSETS TO BE TRANSFERRED
100% fee interest in 00 Xxxx 00xx Xxxxxx
CONSIDERATION TO BE RECEIVED
The minimum consideration shall be a number of Units having a value, when
added to the sum of (i) the aggregate value of all other Units issued to
Contributors under the Contribution Agreement, (ii) the aggregate value of all
Units issued to 29/35 Realty Associates ("Realty Associates") under the Contract
of Sale, dated as of June 5, 1997, between the Operating Partnership and Realty
Associates and (iii) the product of (A) .65 times (B) the aggregate value of all
Units issued to 470 Park South Associates, L.P. ("Park South") under the
Contract of Sale, dated as of May 20, 1997, between the Operating Partnership
and Park South, equal to not less than $15 million. For purposes of the
foregoing, each Unit shall be deemed to have a value equal to the IPO price of a
share of Common Stock.
41
SUPPLEMENTAL ACQUISITION EXHIBIT
673 First Associates, L.P.
ASSETS TO BE TRANSFERRED
Net leasehold interest in 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
CONSIDERATION TO BE RECEIVED
The minimum consideration shall be a number of Units having a value, when
added to the sum of (i) the aggregate value of all other Units issued to
Contributors under the Contribution Agreement, (ii) the aggregate value of all
Units issued to 29/35 Realty Associates ("Realty Associates") under the Contract
of Sale, dated as of June 5, 1997, between the Operating Partnership and Realty
Associates and (iii) the product of (A) .65 times (B) the aggregate value of all
Units issued to 470 Park South Associates, L.P. ("Park South") under the
Contract of Sale, dated as of May 20, 1997, between the Operating Partnership
and Park South, equal to not less than $15 million. For purposes of the
foregoing, each Unit shall be deemed to have a value equal to the IPO price of a
share of Common Stock.
42
SUPPLEMENTAL ACQUISITION EXHIBIT
Green 6th Avenue Associates, L.P.
ASSETS TO BE TRANSFERRED
99% limited partner interest in 1414 Management Associates, L.P.
CONSIDERATION TO BE RECEIVED
The minimum consideration shall be a number of Units having a value, when
added to the sum of (i) the aggregate value of all other Units issued to
Contributors under the Contribution Agreement, (ii) the aggregate value of all
Units issued to 29/35 Realty Associates ("Realty Associates") under the Contract
of Sale, dated as of June 5, 1997, between the Operating Partnership and Realty
Associates and (iii) the product of (A) .65 times (B) the aggregate value of all
Units issued to 470 Park South Associates, L.P. ("Park South") under the
Contract of Sale, dated as of May 20, 1997, between the Operating Partnership
and Park South, equal to not less than $15 million. For purposes of the
foregoing, each Unit shall be deemed to have a value equal to the IPO price of a
share of Common Stock.
43
SUPPLEMENTAL ACQUISITION EXHIBIT
X.X. Xxxxx Realty, Inc.
ASSETS TO BE TRANSFERRED
1% general partner interest in 1414 Management Associates, L.P.
CONSIDERATION TO BE RECEIVED
The minimum consideration shall be a number of Units having a value, when
added to the sum of (i) the aggregate value of all other Units issued to
Contributors under the Contribution Agreement, (ii) the aggregate value of all
Units issued to 29/35 Realty Associates ("Realty Associates") under the Contract
of Sale, dated as of June 5, 1997, between the Operating Partnership and Realty
Associates and (iii) the product of (A) .65 times (B) the aggregate value of all
Units issued to 470 Park South Associates, L.P. ("Park South") under the
Contract of Sale, dated as of May 20, 1997, between the Operating Partnership
and Park South, equal to not less than $15 million. For purposes of the
foregoing, each Unit shall be deemed to have a value equal to the IPO price of a
share of Common Stock.
44
SUPPLEMENTAL ACQUISITION EXHIBIT
Xxxxxxx X. Xxxxx
ASSETS TO BE TRANSFERRED
All outstanding non-voting common stock of Emerald City Construction Corp.,
X.X. Xxxxx Management Corp. and X.X. Xxxxx Realty Inc.
CONSIDERATION TO BE RECEIVED
The minimum consideration shall be a number of Units having a value, when
added to the sum of (i) the aggregate value of all other Units issued to
Contributors under the Contribution Agreement, (ii) the aggregate value of all
Units issued to 29/35 Realty Associates ("Realty Associates") under the Contract
of Sale, dated as of June 5, 1997, between the Operating Partnership and Realty
Associates and (iii) the product of (A) .65 times (B) the aggregate value of all
Units issued to 470 Park South Associates, L.P. ("Park South") under the
Contract of Sale, dated as of May 20, 1997, between the Operating Partnership
and Park South, equal to not less than $15 million. For purposes of the
foregoing, each Unit shall be deemed to have a value equal to the IPO price of a
share of Common Stock.
45
