EXHIBIT 10.20
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CONTRIBUTION AGREEMENT
BY AND BETWEEN
XXXXXXX PARTNERS -- MASTER INVESTMENTS, LLC
A CALIFORNIA LIMITED LIABILITY COMPANY,
AND
FOR PURPOSES OF ARTICLES IV, V AND VI ONLY
XXXXXX X. XXXXXXX III,
XXXXXX X. RISING,
XXXXXXX X. XXXXXXXXX,
AND
XXXXXX X. XXX, XX.,
AND
XXXXXXX PROPERTIES, L.P.,
A MARYLAND LIMITED PARTNERSHIP
DATED AS OF NOVEMBER 5, 2002
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TABLE OF CONTENTS
PAGE
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RECITALS.....................................................................1
ARTICLE I. CONTRIBUTION OF PARTNERSHIP INTERESTS AND EXCHANGE
FOR PARTNERSHIP UNITS.........................................2
Section 1.1 Contribution Transaction.............................2
Section 1.2 Consideration and Exchange of Partnership Units......3
Section 1.3 Adjusted Consideration...............................3
Section 1.4 Tax Treatment of Transaction.........................4
Section 1.5 Allocation of Total Consideration....................4
Section 1.6 Term of Agreement....................................4
Section 1.7 Final Year Allocations...............................4
Section 1.8 Sale Limitations and Debt Guarantees.................4
ARTICLE II. CLOSING..........................................................4
Section 2.1 Conditions Precedent.................................4
Section 2.2 Time and Place.......................................6
Section 2.3 Closing Deliveries...................................6
Section 2.4 Closing Costs........................................7
Section 2.5 Spousal Consent......................................7
ARTICLE III. REPRESENTATIONS AND WARRANTIES AND INDEMNITIES..................7
Section 3.1 Representations and Warranties of the
Operating Partnership.............................7
Section 3.2 Representations and Warranties of Contributor........9
Section 3.3 Indemnification......................................9
ARTICLE IV. COVENANTS OF CONTRIBUTORS.......................................10
Section 4.1 Covenants...........................................10
Section 4.2 Consents............................................10
Section 4.3 Representations/Covenants of Xxxxxxxxx,
Rising and Fox...................................11
ARTICLE V. RELEASES AND WAIVERS.............................................11
Section 5.1 General Release of Operating Partnership............11
Section 5.2 General Release of Contributors.....................11
Section 5.3 Waiver of Section 1542 Protections..................12
Section 5.4 Waiver of Rights Under Partnership Agreements;
Consents With Respect to Partnership Interests...12
ARTICLE VI. POWER OF ATTORNEY...............................................14
Section 6.1 Grant of Power of Attorney..........................14
Section 6.2 Limitation on Liability.............................15
Section 6.3 Ratification; Third Party Reliance..................15
ARTICLE VII. MISCELLANEOUS..................................................16
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Section 7.1 Dispute Resolution..................................16
Section 7.2 Further Assurances..................................17
Section 7.3 Counterparts........................................17
Section 7.4 Governing Law.......................................17
Section 7.5 Amendment; Waiver...................................17
Section 7.6 Entire Agreement....................................17
Section 7.7 Assignability.......................................18
Section 7.8 Titles..............................................18
Section 7.9 Third Party Beneficiary.............................18
Section 7.10 Severability........................................18
Section 7.11 Equitable Remedies..................................18
Section 7.12 Confidentiality.....................................19
Section 7.13 Time Of The Essence.................................19
Section 7.14 Reliance............................................19
Section 7.15 Survival............................................19
Section 7.16 Notice..............................................19
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EXHIBIT LIST
SECTION FIRST
EXHIBITS REFERENCED
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A Contributor's Partnership Interests............................Recital D
B Contribution and Assumption Agreement................................1.1
C Form of Quitclaim....................................................2.1
D Representations and Warranties of Contributor........................3.2
E Power of Attorney....................................................2.3(d)
F Withholding Certificates.............................................2.3(f)
G Sale Limitations and Debt Guaranties.................................1.8
H Spousal Consent......................................................2.5
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CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT (including all exhibits, hereinafter
referred to as this "Agreement") is made and entered into as of November 5, 2002
by and between Xxxxxxx Properties, L.P., a Maryland limited partnership (the
"Operating Partnership"), and Xxxxxxx Partners -- Master Investments, LLC, a
California limited liability company (the "Contributor"), and for purposes of
Articles IV, V and VI only, Xxxxxx X. Xxxxxxx III, an individual, Xxxxxx X.
Rising, an individual ("Rising"), Xxxxxxx X. Xxxxxxxxx, an individual
("Xxxxxxxxx") and Xxxxxx X. Xxx, Xx. an individual ("Fox") (each, also a
"Contributor" as the context requires for purposes of Articles IV, V and VI and
collectively, the "Contributors").
RECITALS
A. The Operating Partnership desires to consolidate the ownership of
a portfolio of office and other properties (the "Participating Properties")
located in Southern California and Texas through a series of transactions (the
"Formation Transactions") whereby the Operating Partnership will acquire either
(i) direct interests in the Participating Properties (the "Property Interests"),
or (ii) directly or indirectly, some or all of the interests in certain limited
partnerships and certain limited liability companies (collectively, the
"Participating Partnerships") which currently own directly or indirectly the
Participating Properties, or a combination of the foregoing.
B. The Formation Transactions relate to the proposed initial public
offering (the "Public Offering") of the common stock of Xxxxxxx Properties,
Inc., a Maryland corporation (the "Company"), which will operate as a
self-administered and self-managed real estate investment trust ("REIT") within
the meaning of Section 856 of the Internal Revenue Code of 1986, as amended (the
"Code") and which is the sole general partner of the Operating Partnership.
C. The owners of the Property Interests and the partners and members
of the Participating Partnerships will either transfer their unencumbered
Property Interests or unencumbered interests in the Participating Partnerships,
as applicable, to the Operating Partnership in exchange for cash or contribute
such unencumbered interests directly to the Operating Partnership in exchange
for units of limited partnership interest ("Partnership Units") in the Operating
Partnership.
D. Contributor owns interests in certain of the Participating
Partnerships as set forth on Exhibit A (each, a "Partnership", and collectively,
the "Partnerships") which Partnerships own, directly or indirectly, interests in
certain of the Participating Properties also set forth on Exhibit A (each, a
"Property" and together the "Properties"). As used herein, "Partnership
Agreement" means the respective partnership agreement or limited liability
company agreement, as applicable, under which each Partnership was formed
(including all amendments or restatements).
E. Contributor desires to, and the Operating Partnership desires
Contributor to, contribute to the Operating Partnership, all of its right, title
and interest, free and clear of all Liens (as defined in Exhibit D), as a
partner or member in each of the Partnerships, including,
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without limitation, all of its voting rights and interests in the capital,
profits and losses of the Partnerships or any property distributable therefrom,
constituting all of its interests in and to the Partnerships (such right, title
and interest in and to the Partnerships are hereinafter collectively referred to
as the "Partnership Interests"), in exchange for Partnership Units, on the terms
and subject to the conditions set forth herein.
F. Each Contributor acknowledges that the Operating Partnership may
decide that, rather than acquiring all of the direct and indirect interests in
the entity that owns a certain Property or acquiring a Partnership Interest by
direct transfer, it is more desirable for the Operating Partnership to acquire a
particular Property by a direct contribution of such Property from the
Partnership that owns such Property (a "Direct Contribution"), or by a merger of
a another Person or a Partnership with and into the Company, the Operating
Partnership or an Affiliate (as defined in Exhibit D) of either of them (a
"Merger"), or to divide a Partnership into more than one partnership to
facilitate the Formation Transactions (a "Division"); and, so long as the
Operating Partnership agrees to hold each Contributor harmless for any
additional adverse tax consequences to such Contributor or additional costs or
liabilities incurred by such Contributor as a result of any restructuring
pursuant to this Recital F as provided in Section 5.4 hereof, each Contributor
desires to give the Operating Partnership the right, in the Operating
Partnership's sole discretion, to engage in any Direct Contribution, Merger or
Division on the terms and conditions described herein without the need to seek
any further consent or action of any Contributor, and will give hereby an
irrevocable power of attorney as set forth in Article 6 hereof and irrevocable
consents as set forth in Section 5.4 hereof, subject to the terms and conditions
of this Agreement.
G. The parties acknowledge that the Operating Partnership's
acquisition of the Partnership Interests and the Contributor's contribution of
its Partnership Interests is in connection with and subject to the consummation
of the Formation Transactions and the Public Offering. It is understood that the
Operating Partnership may acquire interests in additional properties with the
proceeds of the Public Offering.
NOW, THEREFORE, for and in consideration of the foregoing premises,
and the mutual undertakings set forth below, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
TERMS OF AGREEMENT
ARTICLE I.
CONTRIBUTION OF PARTNERSHIP INTERESTS
AND EXCHANGE FOR PARTNERSHIP UNITS
Section 1.1 Contribution Transaction.
At the Closing (as defined in Section 2.2 herein) and subject to the
terms and conditions contained in this Agreement, Contributor shall contribute,
transfer, assign convey and deliver to the Operating Partnership, absolutely and
unconditionally and free and clear of all Liens, but without recourse,
representation or warranty except as expressly set forth herein (including
Exhibit D hereto), all of its Partnership Interests, including all of
Contributor's rights
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and interests to the Partnerships and all rights to indemnification in favor of
Contributor under the agreements pursuant to which Contributor or its Affiliates
acquired the Partnership Interests transferred pursuant to this Agreement. The
contribution of the Partnership Interests shall be evidenced by a Contribution
and Assumption Agreement in substantially the form of Exhibit B attached hereto.
Furthermore, Contributor shall execute and upon the Operating Partnership's
request shall cause each of its individual constituent partners, members and/or
beneficiaries (as applicable) to execute and have duly acknowledged an
individual quitclaim deed for each Property in the form of Exhibit C
quitclaiming to the Operating Partnership any direct or indirect ownership
interest in and to the Properties. The parties shall take such additional
actions and execute such additional documentation as may be required by each
Partnership Agreement and the Amended and Restated Agreement of Limited
Partnership of the Operating Partnership (the "OP Agreement") or as requested in
the reasonable judgment of counsel to the Operating Partnership in order to
effect the transactions contemplated hereby (without, however, the expenditure
of any additional money or the incurring of any additional liability by
Contributor not contemplated herein (including Exhibit D hereto) unless advanced
such money or held harmless from such additional liability by the Operating
Partnership by agreement in form and substance reasonably acceptable to
Contributor).
Section 1.2 Consideration and Exchange of Partnership Units.
Subject to Section 1.3, the Operating Partnership shall, in exchange
for the Partnership Interests, transfer to the Contributor the aggregate number
of Partnership Units having a value, based on one Partnership Unit being equal
in value to the Public Offering price for one share of the Company's common
stock, equal to the value of the Total Consideration indicated on Exhibit A. The
transfer of the Partnership Units to Contributor shall be evidenced by either an
amendment (the "Amendment") to the OP Agreement or by certificates relating to
such Partnership Units (the "Certificates"), in either case, as determined by
the Operating Partnership, in such form as shall be reasonably acceptable to the
Contributor. The parties shall take such additional actions and execute such
additional documentation as may be required by the relevant Partnership
Agreements and the OP Agreement in order to effect the transactions contemplated
hereby.
Section 1.3 Adjusted Consideration.
The Operating Partnership reserves the right not to acquire any
particular interest that constitutes part of the Partnership Interests, if in
good faith the Operating Partnership determines that it would be inappropriate
for the Operating Partnership to own the underlying Property.
The risk of loss relating to the Partnership Interests and the
underlying Properties prior to Closing shall be borne by Contributor. If, prior
to the Closing, any Property is materially destroyed or damaged by fire or other
casualty, then the Operating Partnership may, at its option, determine not to
acquire a particular Property, including Contributor's interest in the
Partnership that directly or indirectly owns such Property, that has been
destroyed or damaged. Under such circumstances, Contributor acknowledges that
the Total Consideration will likely be correspondingly reduced. After the
occurrence of any such casualty affecting a Property, the Operating Partnership
may also, at its option, elect to (a) acquire Contributor's interest in any
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such Partnership that directly or indirectly owns the affected Property, (b)
direct Contributor to pay or cause to be paid to the Operating Partnership any
sums collected under any policies of insurance relating to such casualty and
otherwise assign to the Operating Partnership all rights to collect such sums as
may then be uncollected, and (c) adjust or settle any insurance claim.
Section 1.4 Tax Treatment of Transaction.
The transfer, assignment and exchange effectuated pursuant to this
Agreement shall constitute a "Capital Contribution" to the Operating Partnership
pursuant to Article 4 of the OP Agreement and is intended to be governed by
Section 721(a) of the Code and each Contributor (or such other transferor)
hereby consents to such treatment.
Section 1.5 Allocation of Total Consideration.
The Total Consideration shall be allocated among the Partnership
Interests in a manner reasonably determined by the Operating Partnership. The
Operating Partnership and Contributor agrees to (i) be bound by the allocation,
(ii) act in accordance with the allocation in the preparation of financial
statements and filing of all tax returns and in the course of any tax audit, tax
review or tax litigation relating thereto and (iii) take no position and cause
their Affiliates to take no position inconsistent with the allocation for income
tax purposes.
Section 1.6 Term of Agreement.
If the Closing does not occur by June 30, 2003 (the "Termination
Date"), this Agreement shall be deemed terminated and shall be of no further
force and effect and neither the Operating Partnership nor Contributor shall
have any further obligations hereunder except as specifically set forth herein.
Section 1.7 Final Year Allocations.
To the extent a Partnership Agreement does not provide for final
year tax allocations, the parties hereto agree to use the "interim closing of
the books" method as provided in Section 706 of the Code to allocate income and
loss for the year.
Section 1.8 Sale Limitations and Debt Guarantees.
In connection with the Formation Transactions, the Operating
Partnership has agreed to certain limitations on its ability to sell its direct
or indirect interests in the Participating Properties and to use commercially
reasonable efforts to make certain debt available to be guaranteed by
Contributor, as set forth on Exhibit G.
ARTICLE II.
CLOSING
Section 2.1 Conditions Precedent.
The effectiveness of the Company's registration statement to be
filed with the Securities and Exchange Commission on Form S-11 (the
"Registration Statement") after the
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execution of this Agreement is a condition precedent to the obligations of all
parties to this Agreement to effect the transactions contemplated by this
Agreement on the Closing Date (as defined below). This condition may not be
waived by either party.
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 Contributor contained in
this 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) The obligations of Contributor to be performed by it shall have
been duly performed by it on or before the Closing Date and Contributor shall
not have breached any of its covenants contained herein in any material respect;
(c) Concurrently with the Closing, each Contributor, directly or
through the Attorney-in-Fact, shall have executed and delivered to the Operating
Partnership the documents required to be delivered pursuant to Section 2.3
hereof, as applicable;
(d) All necessary consents or approvals of governmental authorities
or third parties (including lenders) to the consummation of the transactions
contemplated hereby between the parties hereto and the Formation Transactions
shall have been obtained; and
(e) 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.
The foregoing conditions may be waived by the Operating Partnership
in its sole and absolute discretion.
The obligation of each Contributor to effect the transactions
contemplated hereby is subject to the following condition precedent:
(a) 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;
(b) The representations and warranties of the Operating Partnership
(other than Section 3.1(i), which shall not constitute a condition precedent)
contained in this 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; and
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(c) The obligations of the Operating Partnership to be performed by
it shall have been duly performed by it on or before the Closing Date and the
Operating Partnership shall not have breached any of its covenants contained
herein in any material respect.
Section 2.2 Time and Place.
The date, time and place of the transactions contemplated hereunder
shall be the day the Operating Partnership receives the proceeds from the Public
Offering from the underwriter(s), at 10:00 a.m. in the office of Xxxxxx &
Xxxxxxx, 000 Xxxx Xxxxx Xxxxxx, Xxxxx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx (the
"Closing" or "Closing Date"). The transfers described in Article 1 of this
Agreement, all closing deliveries and the consummation of the Public Offering
shall be deemed concurrent for all purposes.
Section 2.3 Closing Deliveries.
At the Closing, each party shall make, execute, acknowledge and/or
deliver (as required), or cause to be made, executed, acknowledged and/or
delivered through the Attorney-in-Fact (see Section 6.1 below), the legal
documents and other items (collectively the "Closing Documents") necessary to
carry out the intention of this Agreement, which Closing Documents and other
items shall include, without limitation, the following:
(a) A Contribution and Assumption Agreement for the Partnership
Interests in the form attached hereto as Exhibit B;
(b) An individual quitclaim deed for each Property fully executed
and duly acknowledged by Contributor and, upon request of the Operating
Partnership, by each other Contributor, if an individual, or by each of the
individual constituent partners and/or members of such Contributor, in the form
attached hereto as Exhibit C;
(c) The Amendment or the Certificates evidencing the transfer of
Partnership Units to Contributor;
(d) A Power of Attorney fully executed and duly acknowledged from
each Contributor substantially in the form attached hereto as Exhibit E;
(e) All title insurance policies, leases, lease files, contracts,
stock certificates, original promissory notes, and other indicia of ownership
with respect to each Partnership (and any subsidiary Participating Partnership)
shall be delivered to the Operating Partnership which are in each Contributor's
possession or which can be obtained through each Contributor's reasonable
efforts (without, however, the expenditure of any additional money or the
incurring of any additional liability not contemplated herein (including Exhibit
D hereto)) in such Contributor's capacity as a partner or interest holder of any
of the Partnerships or any of their respective Affiliates;
(f) An affidavit from Contributor, stating under penalty of perjury,
its United States Taxpayer Identification Number and that it 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, each in the forms
attached hereto as Exhibit F;
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(g) Any other documents reasonably requested by the Operating
Partnership or the Company to assign, transfer, convey, contribute and deliver
the Partnership Interests, free and clear of all Liens and effectuate the
transactions contemplated hereby (which are in such Contributor's possession or
which can be obtained through such Contributor's reasonable efforts (without,
however, the expenditure of any additional money or the incurring of any
additional liability not contemplated herein (including Exhibit D hereto) in
such Contributor's capacity as a partner or interest holder of any of the
Partnerships or any of their respective Affiliates), including, without
limitation, any documents reasonably requested by the Operating Partnership to
enable a title insurance company (acceptable to the Operating Partnership in its
sole discretion) to issue to the Operating Partnership American Land Title
Assurances policies of title insurance with appropriate endorsements (including,
without limitation, non-imputation endorsements to the extent available) and
levels of reinsurance for the Properties issued as of the Closing Date (the
"Title Policies"), insuring fee simple and/or leasehold title to all real
property and improvements comprising all or any part of the Property Interests
to the Operating Partnership as the Operating Partnership may designate, subject
only to the Permitted Liens (as defined in Exhibit D hereto), and all state and
local transfer tax returns and any filings with any applicable governmental
jurisdiction in which the Operating Partnership is required to file its
partnership documentation or the recording of the Contribution and Assumption
Agreement or deed or other Property Interests transfer documents is required;
and
(h) If requested by the Operating Partnership, a certified copy of
all appropriate corporate resolutions or partnership actions authorizing the
execution, delivery and performance by Contributor of this Agreement, any
related documents and the documents listed in this Section 2.3.
Section 2.4 Closing Costs.
The Operating Partnership shall pay any documentary transfer taxes,
escrow charges, title charges and recording taxes or fees and any other closing
costs incurred in connection with the transactions contemplated hereby;
provided, however, that each Contributor shall be responsible for its own legal
costs.
Section 2.5 Spousal Consent.
Upon the execution of this Agreement, each of Rising, Xxxxxxxxx and
Fox shall deliver a spousal consent executed by such individual's spouse in the
form of Exhibit H attached hereto.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES AND INDEMNITIES
Section 3.1 Representations and Warranties of the Operating Partnership.
The Operating Partnership hereby represents and warrants to and
covenants with Contributor that as of the date hereof and as of the Closing
Date:
(a) Organization; Authority. The Operating Partnership has been duly
formed and is validly existing under the laws of the jurisdiction of its
formation, and has all requisite
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power and authority to enter this Agreement, each agreement contemplated hereby
and to carry out the transactions contemplated hereby and thereby, and own,
lease or operate its property and to carry on its business as presently
conducted and, to the extent required under applicable law, is qualified to do
business and is in good standing in each jurisdiction in which the nature of its
business or the character of its property make such qualification necessary.
(b) Due Authorization. The execution, delivery and performance of
this Agreement by the Operating Partnership has been duly and validly authorized
by all necessary action of the Operating Partnership. This Agreement and each
agreement, document and instrument executed and delivered by or on behalf of 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 against the Operating Partnership in
accordance with its terms, as such enforceability may be limited by bankruptcy
or the application of equitable principles.
(c) Consents and Approvals. Except in connection with the Public
Offering and the consummation of the Formation Transactions, no consent, waiver,
approval or authorization of any third party or governmental authority or agency
is required to be obtained by the Operating Partnership in connection with the
execution, delivery and performance of this Agreement and the transactions
contemplated hereby, except any of the foregoing that shall have been satisfied
prior to the Closing Date.
(d) Brokers. The Operating Partnership has not employed or made any
agreement with any broker, finder or similar agent or firm which will result in
the obligation of the Contributor to pay any finder's fees, brokerage fees or
commissions or similar payments in connection with the transactions contemplated
by this Agreement.
(e) Knowledge of Properties. The Operating Partnership is a
sophisticated real estate investor. The Operating Partnership is relying upon
its own independent analysis and assessment, and the advice of such the
Operating Partnership's advisors, and not upon that of Contributor or any of
Contributor's Affiliates, for purposes of evaluating, entering into, and
consummating the transactions contemplated by this Agreement.
(f) No Violation. None of the execution, delivery or performance of
this Agreement, any agreement contemplated hereby between the parties to this
Agreement and the transactions contemplated hereby between the parties to this
Agreement does or will, with or without the giving of notice, lapse of time, or
both, (i) violate, conflict with, result in a breach of, or constitute a default
under or give to others any right of termination, acceleration, cancellation or
other right adverse to the Contributor of (A) the organizational documents of
the Operating Partnership, or (B) any term or provision of any judgment, order,
writ, injunction, or decree binding on the Operating Partnership, or, other than
in connection with the Offering and the Formation Transactions, require any
approval, consent or waiver of, or make any filing with, any person or
governmental or regulatory authority or under any foreign, federal, state, local
or other law binding on the Operating Partnership (or its assets or properties).
(g) Partnership Units. The Partnership Units to be issued to the
Contributor pursuant to this Agreement will have been duly authorized and, when
issued against the
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consideration therefor, will, subject to the terms of the OP Agreement, be
validly issued to the Contributor by the Operating Partnership free and clear of
all Liens created by the Operating Partnership.
(h) OP Agreement. As of the date hereof, the Operating Partnership
has delivered to counsel for Contributor the Partnership Agreement of the
Operating Partnership as well as a current draft of the proposed amended and
restated OP Agreement, which is in substantially the form in which it will be
executed by the parties at the Closing, other than for such changes that may be
made after the date hereof that are not disproportionately adverse to
Contributor as opposed to other limited partners (including Xxxxxx X. Xxxxxxx
III).
(i) Material Agreements. None of the execution, delivery or
performance of this Agreement, any agreement contemplated hereby between the
parties to this Agreement and the transactions contemplated hereby between the
parties to this Agreement does or will, with or without the giving of notice,
lapse of time, or both violate, conflict with, result in a breach of, or
constitute a default under or give to others any right of termination,
acceleration, cancellation or other right adverse to the Contributor of any
material agreement, document or instrument to which the Operating Partnership is
a party or by which its property or interests are bound.
Section 3.2 Representations and Warranties of Contributor.
Contributor represents and warrants to and covenants with the
Operating Partnership as provided in Exhibit D attached hereto, and acknowledges
and agrees to be bound by the indemnification provisions contained therein.
Contributor hereby agrees promptly to give the Operating Partnership written
notice upon obtaining actual knowledge of any information which makes any
representation or warranty made by Contributor hereunder untrue, and in any
event to give written notice within five (5) business days of obtaining actual
knowledge of such information.
Section 3.3 Indemnification.
The Operating Partnership shall indemnify and hold harmless each
Contributor and its directors, beneficiaries, officers, employees, agents,
representatives and Affiliates (each of which is an "Indemnified Contributor
Party") from and against any and all charges, complaints, claims, actions,
causes of action, losses, damages, liabilities and expenses of any nature
whatsoever, including without limitation, amounts paid in settlement, reasonable
attorneys' fees, costs of investigation, costs of investigative judicial or
administrative proceedings or appeals therefrom and costs of attachment or
similar bonds (collectively, "Losses") arising out of or relating to, asserted
against, imposed upon or incurred by the Indemnified Contributor Party in
connection with: (i) any breach of a representation, warranty or covenant of the
Operating Partnership contained in this Agreement (including, without
limitation, any breach of the Power of Attorney as set forth in Article VI
below), (ii) all fees, costs and expenses of the Operating Partnership in
connection with the transactions contemplated by this Agreement, including
without limitation any and all costs associated with the transfers contemplated
herein, and (iii) the Partnerships, except in each case for matters arising from
the breach by Contributor of any representation, warranty, covenant or
obligation under this Agreement, any Partnership Agreement, or any agreement
contemplated by this Agreement or
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from Contributor's gross negligence or willful misconduct. The notice and
defense requirements set forth in Section 3.4 of Exhibit D attached hereto shall
apply mutatis mutandis to this Section 3.3; provided, however, that if the
Operating Partnership is required to retain counsel, any such counsel shall be
selected by the Operating Partnership. Notwithstanding anything to the contrary
in this Agreement, this Section 3.3 shall be the sole and exclusive remedy of
each Contributor for breach by the Operating Partnership of any of its
representations, warranties and covenants contained in this Agreement, or in any
Schedule, certificate or affidavit delivered by it pursuant hereto.
Notwithstanding anything contained herein to the contrary, no Indemnified
Contributor Party shall have the right to receive or recover punitive damages
against the Operating Partnership by reason of any breach under or in connection
with this Agreement or any schedule, exhibit, certificate or affidavit or any
other document delivered by the Operating Partnership pursuant to this
Agreement, and each Indemnified Contributor Party hereby waives any and all
right to receive such punitive damages.
ARTICLE IV.
COVENANTS OF CONTRIBUTORS
Section 4.1 Covenants.
(a) From the date hereof through the Closing, no Contributor shall:
(i) Sell, transfer (or agree to sell or transfer) or otherwise
dispose of all or any portion of its Partnership Interests, without the prior
written consent of the Operating Partnership;
(ii) Mortgage, pledge or encumber (or permit to become
encumbered) all or any portion of its Partnership Interests;
(iii) Amend, modify or terminate any material agreements or
other instruments relating to the Partnership Interests or the Property
Interests to which such Partnership is a party; or
(iv) Make any distribution to its partners except in the
ordinary course of business.
(b) From the date hereof and subsequent to the Closing, each
Contributor agrees to provide the Operating Partnership with such tax
information relating to the Partnership Interests that is in such Contributor's
possession or control and that is reasonably requested by the Operating
Partnership and not otherwise in the Operating Partnership's possession or
control and to cooperate with the Operating Partnership with respect to its
filing of tax returns.
Section 4.2 Consents.
Each Contributor shall use its good faith diligent efforts to obtain
any approvals, waivers or other consents of third parties, governmental
authorities and agencies required to effect the transactions contemplated by
this Agreement and as listed on the disclosure schedule provided by the
Contributors.
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Section 4.3 Representations/Covenants of Xxxxxxxxx, Rising and Fox.
Each of Xxxxxxxxx, Rising and Fox represent and warrant that upon
the consummation of the transactions contemplated by this Agreement such person
will not have any further rights, interests, or claims, of any kind, directly or
indirectly, in or to any of the Properties or any other properties or assets
owned and controlled by Xxxxxx X. Xxxxxxx III. To the extent that any of
Xxxxxxxxx, Rising and Fox may hold any such interests, rights or claims, each of
Xxxxxxxxx, Rising and Fox covenant to take all necessary actions to contribute
such interests, rights or claims in any Properties to the Operating Partnership
and any such interests, rights or claims in any other properties or assets owned
and controlled by Xxxxxx X. Xxxxxxx III to Xx. Xxxxxxx or his designee.
ARTICLE V.
RELEASES AND WAIVERS
Each of the releases and waivers enumerated in this Article 5 shall
become effective only upon the Closing of the contribution of the Partnership
Interests pursuant to Articles 1 and 2 herein and the Contributor's receipt of
the Total Consideration.
Section 5.1 General Release of Operating Partnership.
As of the Closing, each Contributor irrevocably waives, releases and
forever discharges the Company, the Operating Partnership and each of the
Operating Partnership's direct or indirect subsidiaries, directly or indirectly
controlled Affiliates, partners (in their capacity as partners of the Operating
Partnership), agents, attorneys, successors and assigns of and from, any and all
obligations, charges, complaints, claims, liabilities, damages, actions, causes
of action, losses and costs of any nature whatsoever existing as of the Closing
(collectively, "Contributor Claims"), known or unknown, suspected or
unsuspected, arising out of or relating to any Partnership Agreement, the
Partnerships, the Properties or any other matter which exists at the Closing,
except for Contributor Claims arising from the breach of any representation,
warranty, covenant or obligation by the Operating Partnership under this
Agreement, any agreement contemplated hereby or entered into in connection
herewith, or the governing documents of the Operating Partnership and the
Company.
Section 5.2 General Release of Contributors.
As of the Closing, the Operating Partnership (on behalf of itself
and the Company) irrevocably waives, releases and forever discharges each
Contributor and such Contributor's agents, attorneys, successors and assigns of
and from, any and all obligations, charges, complaints, claims, liabilities,
damages, actions, causes of action, losses and costs of any nature whatsoever
existing as of the Closing (collectively, "Operating Partnership Claims"), known
or unknown, suspected or unsuspected, arising out of or relating to any
Partnership Agreement, the Partnerships, the Properties 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 by such
Contributor under this Agreement, any agreement contemplated hereby or entered
into in connection herewith, or the governing documents of the Operating
Partnership and the Company.
11
Section 5.3 Waiver of Section 1542 Protections.
As of the Closing, each Contributor and the Operating Partnership
(on behalf of itself and the Company) expressly acknowledges that it has had, or
has had and waived, the opportunity to be advised by independent legal counsel
and hereby waives and relinquishes all rights and benefits afforded by Section
1542 of the California Civil Code and does so understanding and acknowledging
the significance and consequence of such specific waiver of Section 1542 which
provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING
THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED THE
SETTLEMENT WITH THE DEBTOR.
Section 5.4 Waiver of Rights Under Partnership Agreements; Consents With
Respect to Partnership Interests.
(a) As of the Closing, each Contributor waives and relinquishes all
rights and benefits otherwise afforded to such Contributor under any Partnership
Agreement including, without limitation, any rights of appraisal, rights of
first offer or first refusal, buy/sell agreements, and any right to consent to
or approve of the sale or contribution by the other partners or members of each
Partnership of their Partnership Interests to the Operating Partnership, the
Company or any direct or indirect subsidiary thereof or any sale of such
Partnership Interests to Xxxxxx X. Xxxxxxx III (or his designee). 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, certain Partnership Agreements or other agreements among one or
more holders of such Partnership Interests or one or more of the partners of any
such Partnership. With respect to each Partnership and each Property in which a
Partnership Interest of such 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 (i) facilitate any Conveyance Action relating
to such Partnership or Property, (ii) cause the Partnership to have authority to
transfer the Partnership Interests or Properties to the Operating Partnership,
and (iii) allow Contributors to receive Partnership Units directly from the
Partnership if the Partnership or one or more of the Partnership's subsidiaries
transfers assets or interests directly to the Operating Partnership (rather than
the Contributors contributing their Partnership Interests hereunder) and to
reduce the consideration otherwise payable by the Operating Partnership
hereunder as a result of such direct transfer by the Partnership or its
subsidiaries on account of Contributors receiving any amount hereunder from such
Partnership or its subsidiaries making such direct transfer; provided that the
Operating Partnership shall hold each Contributor harmless (by an agreement in
form and substance reasonably acceptable to Contributor and consistent with the
terms of this Section 5.4) for any additional adverse tax consequences to such
Contributor or additional costs or liabilities incurred by such Contributor, in
each case solely as a result of any Conveyance Action and in excess of those
contemplated herein (including Exhibit D) that would have resulted were the
transactions consummated pursuant to the contributions contemplated by
Section 1.1. In
12
addition, if the Closing occurs this Agreement shall be deemed to be an
amendment to any Partnership Agreement to the extent the terms herein conflict
with the terms thereof, including without limitation, terms with respect to
allocations, distributions and the like. If the Closing does not occur, nothing
in this Agreement shall be deemed to or construed as an amendment or
modification of, or commitment of any kind to amend or modify the Partnership
Agreements which shall remain in full force and effect without modification.
(b) As used herein, the term "Conveyance Action" means, with respect
to any Partnership having a direct or indirect ownership interest in any
Property, (i) the transfer, 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) directly, by Direct Contribution,
Merger, Division or otherwise of its direct or indirect interest in such
Partnership or Property to the Operating Partnership or the Company or (ii) the
entering into by any such partner or holder any agreement relating to (x) the
formation of the Operating Partnership or the Company, or (y) the direct or
indirect acquisition by the Operating Partnership or the Company of any such
direct or indirect interest or (iii) 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): any sale or distribution to any person of a
direct or indirect interest in such Partnership or Property, 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 or Property, and the giving of
the Consents and Waivers contained in this Section or consents or waivers
similar thereto in form or purpose.
(c) As used herein, the term "Consents" means, with respect to any
such Partnership or Property, any consent necessary or desirable under any
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
(i) to cause the Partnership to have authority to permit any and all Conveyance
Actions relating to such Partnership or the Property held by such Partnership,
or to amend any such Partnership Agreement and/or other agreements so that no
provision thereof prohibits, restricts, impairs or interferes with any
Conveyance Action, (ii) to admit the Operating Partnership as a substitute
limited partner or general partner of such Partnership upon the contribution of
a limited or general Partnership Interest, respectively, to the Operating
Partnership and to adopt such amendment as is necessary or desirable to effect
such admission, (iii) to adopt any amendment to such Partnership Agreement as
may be necessary or desirable to facilitate the transactions contemplated
herein, either simultaneously with or immediately prior to the acquisition of
any interest therein, (iv) to continue such Partnership following the transfer
of interest therein to the Operating Partnership, and (v) to satisfy any
requirement of any third party, Title Company, or governmental authority with
respect to the Conveyance Actions.
(d) As used herein, the term "Waivers" means, with respect to a
Partnership or a Property of which a Partnership 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 Contributor or
other person upon the occurrence of, a Conveyance Action relating to such
Partnership or Property, 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
13
Partnership or Property 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 it will take no action to
enjoin, or seek damages resulting from, any Conveyance Action permitted
hereunder by any holder of a direct or indirect interest in a Partnership or a
Property in which a Partnership Interest of such Contributor represents a direct
or indirect interest.
(e) The Waivers and Consents contained in this Section shall
terminate upon the termination of this Agreement, except as to transactions
completed hereunder prior to termination.
ARTICLE VI.
POWER OF ATTORNEY
Section 6.1 Grant of Power of Attorney.
Each Contributor hereby irrevocably appoints the Operating
Partnership (or its designee) 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 such
Contributor, to act in the name, place and stead of such Contributor 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 any Closing Documents or
other documents) relating to the acquisition by the Operating Partnership of the
Partnership Interests (including, but not limited to the OP Agreement, as it may
be amended or revised, any registration rights agreements and any lock-up
agreements), to the acquisition of interests in any entity that directly or
indirectly owns a certain Property or Partnership Interests by Direct
Contribution, Merger or Division, and to provide information to the Securities
and Exchange Commission and others about the transactions contemplated hereby,
as fully as could such Contributor if personally present and acting (the "Power
of Attorney"). In addition, each of Xxxxxxxxx, Rising and Fox hereby also
irrevocably appoints the Attorney-In-Fact as the true and lawful
attorney-in-fact and agent of such individual, to act in the name, place and
stead of such individual to make, execute, acknowledge and deliver any
documents, assignments, notices, requests, instructions, certificates, consents,
letters and other writings in order to contribute any other interests in the
Properties to the Operating Partnership and any interests in any other
properties owned and controlled by Xx. Xxxxxxx to Xx. Xxxxxxx or his designee,
as applicable, pursuant to the provisions set forth in Section 4.3 hereof (also,
the "Power of Attorney"). Further, each Contributor hereby grants to
Attorney-in-Fact a proxy (the "Proxy") to vote the Partnership Interests on any
matter related to the Formation Transactions presented to any of the
Partnership' partners for a vote, including, but not limited to, the transfer of
interests in any 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 any Contributor, by operation of law or by
the occurrence of any other event or events, and if
14
any other such act or events shall occur before the completion of the
transactions contemplated by this 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. Each
Contributor agrees that, at the request of Operating Partnership it will
promptly execute and deliver to the Operating Partnership a separate power of
attorney and proxy on the same terms set forth in this Article 6, such execution
to be witnessed and notarized. Each Contributor hereby authorizes the reliance
of third parties on each of the Power of Attorney and Proxy.
Each 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 Agreement.
The Power of Attorney contained in this Section 6.1 shall expire on
the earlier to occur of the fourth anniversary of the Closing or the termination
of this Agreement. Notwithstanding anything to the contrary contained herein,
the Attorney-in-Fact shall not expand Contributor's covenants, representations
or warranties beyond those contemplated by this Agreement and the other
documents and agreements contemplated hereby, and the Attorney-in-Fact shall
hold each Contributor harmless to the extent of any such expansion.
Section 6.2 Limitation on Liability.
It is understood that the Attorney-in-Fact (qua Attorney-in-Fact)
assumes no responsibility or liability to any person by virtue of the Power of
Attorney or Proxy granted by the Contributors hereby. Other than as specifically
set forth in this Agreement, the Attorney-in-Fact makes no representations with
respect to and shall have no responsibility for the Formation Transactions or
the Public Offering, or the acquisition of the Partnership Interests 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. 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 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;
provided that this provision shall in no way alter or limit any of the
obligations of the Operating Partnership (other than in its capacity as
Attorney-in-Fact) otherwise set forth in this Agreement. It is understood that
the Attorney-in-Fact may, without breaching any express or implied obligation to
Contributors hereunder, release, amend or modify any other power of attorney or
proxy granted by any other person under any related agreement.
Section 6.3 Ratification; Third Party Reliance.
Each Contributor hereby ratifies and confirms that the
Attorney-in-Fact shall lawfully do or cause to be done by virtue of the exercise
of the powers granted unto him by such Contributor under this Article 6, and
each 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.
15
ARTICLE VII.
MISCELLANEOUS
Section 7.1 Dispute Resolution.
The parties hereby agree that, in order to obtain prompt and
expeditious resolution of any disputes under this Agreement, other than as
specifically noted, each claim, dispute or controversy of whatever nature,
arising out of, in connection with, or in relation to the interpretation,
performance or breach of this Agreement (or any other agreement contemplated by
or related to this Agreement or any other agreement between the parties),
including without limitation any claim based on contract, tort or statute, or
the arbitrability of any claim hereunder, provided that "Arbitrable Claims"
shall not include any claim, dispute or controversy in connection with Section
7.11 hereof, (an "Arbitrable Claim"), shall be settled by final and binding
arbitration conducted in Los Angeles, California. The arbitrability of any
Arbitrable Claims under this Agreement shall be resolved in accordance with the
rules and procedures of Judicial Arbitration & Mediation Services, Inc.
("JAMS"). Each Arbitrable Claim shall be resolved pursuant to a two-step dispute
resolution process involving, first, mediation before a retired judge from the
JAMS panel, followed, if necessary, by final and binding arbitration before the
same, or if requested by either party, another JAMS panelist. Such dispute
resolution process shall be confidential and shall be conducted in accordance
with California Evidence Code Section 1119.
(i) Mediation. In the event any Arbitrable Claim is not
resolved by an informal negotiation between the parties within fifteen
(15) days after either party receives written notice that an Arbitrable
Claim exists, the matter shall be referred to the Los Angeles, California
office of JAMS, or any other office agreed to by the parties, for an
informal, non-binding mediation consisting of one or more conferences
between the parties in which a retired judge will seek to guide the
parties to a resolution of the Arbitrable Claims. The parties shall select
a mutually acceptable neutral arbitrator from among the JAMS panel of
mediators. In the event the parties cannot agree on a mediator, the
Administrator of JAMS will appoint a mediator. The mediation process shall
continue until the earliest to occur of the following: (i) the Arbitrable
Claims are resolved, (ii) the mediator makes a finding that there is no
possibility of resolution through mediation, or (iii) thirty (30) days
have elapsed since the Arbitrable Claim was first scheduled for mediation.
(ii) Arbitration. Should any Arbitrable Claims remain after
the completion of the mediation process described above, the parties agree
to submit all remaining Arbitrable Claims to final and binding arbitration
administered by JAMS in accordance with the then existing JAMS Arbitration
Rules. Neither party nor the arbitrator shall disclose the existence,
content, or results of any arbitration hereunder without the prior written
consent of all parties. Except as provided herein, the California
Arbitration Act shall govern the interpretation, enforcement and all
proceedings pursuant to this subparagraph. The arbitrator is without
jurisdiction to apply any substantive law other than the laws selected or
otherwise expressly provided in this Agreement. The arbitrator shall
render an award and a written, reasoned opinion in support thereof. Such
16
award may include reasonable attorneys' fees to the prevailing party.
Judgment upon the award may be entered in any court having jurisdiction
thereof.
(iii) Costs. The parties shall bear their respective costs
incurred in connection with the procedures described in this Section 7.1,
except that the parties shall equally share the fees and expenses of the
mediator or arbitrator and the costs of the facility for the hearing.
(iv) Survivability. This dispute resolution process shall
survive the termination of this Agreement. The parties expressly
acknowledge that by signing this Agreement, they are giving up their
respective right to a jury trial.
Section 7.2 Further Assurances.
Each Contributor shall take such other actions and execute such
additional documents following the Closing as the Operating Partnership may
reasonably request in order to effect the transactions contemplated hereby,
except that no Contributor shall be obligated to take any action or execute any
document if the additional actions or documents impose additional liabilities,
obligations, covenants, responsibilities, representations or warranties on such
Contributor which are not contemplated by this Agreement or reasonably inferable
by the terms herein.
Section 7.3 Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
Section 7.4 Governing Law.
This Agreement shall be governed by the internal laws of the State
of California, without regard to the choice of laws provisions thereof.
Section 7.5 Amendment; Waiver.
Any amendment hereto shall be in writing and signed by all parties
hereto. No waiver of any provisions of this Agreement shall be valid unless in
writing and signed by the party against whom enforcement is sought.
Section 7.6 Entire Agreement.
This Agreement and all related agreements referred to herein
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.
17
Section 7.7 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 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, except that the Operating
Partnership may assign its rights and obligations hereunder to an Affiliate.
Section 7.8 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.
Section 7.9 Third Party Beneficiary.
No provision of this 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.
Section 7.10 Severability.
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. 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 parties to effect such
replacement.
Section 7.11 Equitable Remedies.
Each Contributor agrees that irreparable damage would occur to the
Operating Partnership in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the Operating Partnership shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
by Contributor and to enforce specifically the terms and provisions hereof in
any federal or state court located in California (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 the Operating Partnership is entitled
under this Agreement or otherwise at law or in equity. Notwithstanding the
foregoing, this Agreement shall not bar any equitable remedies otherwise
available to Contributor pursuant to the terms and provisions contained in
Exhibit G.
18
Section 7.12 Confidentiality.
All press releases or other public communications of any kind
relating to the Public Offering 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.
Section 7.13 Time Of The Essence.
Time is of the essence with respect to all obligations under this
Agreement.
Section 7.14 Reliance.
Each party to this Agreement acknowledges and agrees that it is not
relying on tax advice or other advice from the other party to this Agreement,
and that it has or will consult with its own advisors.
Section 7.15 Survival.
It is the express intention and agreement of the parties hereto that
the representations, warranties and covenants of each Contributor and Operating
Partnership set forth in this Agreement shall survive the consummation of the
transactions contemplated hereby; provided, however, that the representations of
each Contributor shall survive only for the period specified in Exhibit D
attached hereto. The provisions of this Agreement that contemplate performance
after the Closing and the obligations of the parties not fully performed at the
Closing shall survive the Closing and shall not be deemed to be merged into or
waived by the instruments of Closing.
Section 7.16 Notice.
Any notice to be given hereunder by any party to the other shall be
given in writing by personal delivery or by registered or certified mail,
postage prepaid, return receipt requested, and shall be deemed communicated as
of the date of personal delivery (including delivery by overnight courier).
Mailed notices shall be addressed as set forth below, but any party may change
the address set forth below by written notice to other parties in accordance
with this paragraph.
To Contributors:
Xxxxxxx Partners -- Master Investments, LLC
c/x Xxxxxxxxx & Xxxxxx
Wilshire Palisades Building
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxx X. Xxxxxx, Esq.
19
To the Operating Partnership:
Xxxxxxx Properties, L.P.
c/o Maguire Partners
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxx Lammas
[Signature Page Follows]
20
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
"OPERATING PARTNERSHIP"
Xxxxxxx Properties, L.P.,
a Maryland limited partnership
By: Xxxxxxx Properties, Inc.,
a Maryland corporation
Its: General Partner
By: /s/ XXXXXX X. XXXXX
--------------------------------------
Name: Xxxxxx X. Xxxxx
------------------------------------
Title: Chief Financial Officer
-----------------------------------
"CONTRIBUTOR"
XXXXXXX PARTNERS -- MASTER INVESTMENTS,
LLC, a California limited liability
company (formerly known as XXXXXXX
PARTNERS -- MASTER INVESTMENTS)
By: Xxxxxxx Partners, Inc.,
a California corporation
Its: Managing Member
By: /s/ XXXXXX X. XXXXXXX III
--------------------------------------
Name: Xxxxxx X. Xxxxxxx III
------------------------------------
Title:
-----------------------------------
FOR PURPOSES OF ARTICLES IV, V AND VI
ONLY, THE FOLLOWING CONTRIBUTORS:
XXXXXX X. XXXXXXX III
/s/ XXXXXX X. XXXXXXX III
-----------------------------------------
Xxxxxx X. Xxxxxxx III
S-1
XXXXXX X. RISING
/s/ XXXXXX X. RISING
-----------------------------------------
Xxxxxx X. Rising
XXXXXXX X. XXXXXXXXX
/s/ XXXXXXX X. XXXXXXXXX
-----------------------------------------
Xxxxxxx X. Xxxxxxxxx
XXXXXX X. XXX, XX.
/s/ XXXXXX X. XXX, XX.
-----------------------------------------
Xxxxxx X. Xxx, Xx.
S-2
EXHIBIT D
TO
CONTRIBUTION AGREEMENT
REPRESENTATIONS, WARRANTIES AND INDEMNITIES OF CONTRIBUTOR
ARTICLE 1 -- ADDITIONAL DEFINED TERMS
For purposes of this Exhibit D, the following terms have the
meanings set forth below. Terms which are not defined below shall have the
meaning set forth for those terms as defined in the Agreement to which this
Exhibit D is attached:
Actions: Means all actions, complaints, charges, accusations,
investigations, petitions, suits, arbitrations, mediations or other proceedings,
whether civil or criminal, at law or in equity, or before any arbitrator or
Governmental Entity.
Affiliate: Means with respect to any Person, a Person that, directly
or indirectly, through one or more intermediaries, controls, is controlled by,
or is under common control with the specified Person. For the purposes of this
definition, "control" (including, with correlative meanings, the terms
"controlled by" and "under common control with") as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by agreement or otherwise.
Agreement: Means the Contribution Agreement to which this Exhibit D
is attached.
Claims: Means claims or disputes (of whatever nature), or Actions
pending or, to the Knowledge of such party, threatened that directly or
indirectly affect any of the Contributors, any Partnership or the Properties.
FIRPTA: Means Foreign Investment in Real Estate Property Tax Act.
Knowledge: Means, with respect to any representation or warranty in
the Agreement or the exhibits attached thereto, the actual knowledge, without
inquiry, of the signatory to the Agreement. Knowledge is not intended to suggest
that the person knows all of the facts or circumstances necessary to establish
that the applicable representation or warranty is true.
Liens: Means, with respect to any real and personal property, all
mortgages, pledges, liens, options, charges, security interests, mortgage deed,
restrictions, prior assignments, encumbrances, covenants, encroachments,
assessments, purchase rights, rights of others, licenses, easements, voting
agreements, liabilities or claims of any kind or nature whatsoever, direct or
indirect, including, without limitation, interests in or claims to revenues
generated by such property, but specifically excluding any Liens created by or
on behalf of the Operating Partnership.
Exhibit D-1
Partnership Units: Shall have the meaning set forth in the OP
Agreement.
Permitted Liens: Means
(a) Liens, or deposits made to secure the release of such Liens,
securing taxes, the payment of which is not delinquent or the payment of which
is actively being contested in good faith by appropriate proceedings diligently
pursued;
(b) Zoning laws and ordinances applicable to the Properties which
are not violated by the existing structures or present uses thereof;
(c) Liens imposed by laws, such as carriers', warehousemen's and
mechanics' liens, and other similar liens arising in the ordinary course of
business which secure payment of obligations not more than 60 days past due or
which are being contested in good faith by appropriate proceedings diligently
pursued;
(d) non-exclusive easements for public utilities that do not have a
material adverse effect upon, or interfere with the use of, the Properties; and
(e) any exceptions contained in the Title Policies.
Person: Means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or governmental entity.
Prospectus: Means the Company's Form S-11 Registration Statement.
REIT Shares: Shall have the meaning set forth in the Partnership
Agreement.
ARTICLE 2 -- REPRESENTATIONS AND WARRANTIES
OF CONTRIBUTOR
Except as set forth in the disclosure schedule delivered to the
Operating Partnership on the date hereof specifically noting any exception to
the representations and warranties of Contributor and the particular
representation or warranty of Contributor to which any such exception applies,
Contributor represents and warrants to the Operating Partnership as set forth
below in this Article 2, which representations and warranties are true and
correct as of the date hereof and will be true and correct as of the date of
Closing. Notwithstanding any other provision of the Agreement or this Exhibit D,
Contributor makes representations, warranties and indemnities only with respect
to the interests in each of the Partnerships to be transferred by Contributor
identified on Exhibit A to the Agreement.
2.1 Organization; Authority. Contributor (A) is duly formed, validly
existing and in good standing (to the extent applicable) under the laws of the
jurisdiction of its formation, and (B) has all requisite power and authority to
enter the Agreement, each agreement contemplated thereby and to carry out the
transactions contemplated thereby, and own, lease or operate its property and to
carry on its business as presently conducted and, to the extent required under
applicable law, is qualified to do business and is in good standing in each
jurisdiction in
Exhibit D-2
which the nature of its business or the character of its property make such
qualification necessary.
2.2 Due Authorization. The execution, delivery and performance of
the Agreement by Contributor has been duly and validly authorized by all
necessary action of Contributor. This Agreement and each agreement, document and
instrument executed and delivered by or on behalf of Contributor pursuant to
this Agreement constitutes, or when executed and delivered will constitute, the
legal, valid and binding obligation of Contributor, each enforceable against
Contributor in accordance with its terms, as such enforceability may be limited
by bankruptcy or the application of equitable principles.
2.3 Consents and Approvals. Except as shall have been satisfied
prior to the Closing Date and in any case as set forth on the disclosure
schedule, no consent, waiver, approval or authorization of any spouse, third
party or governmental authority or agency is required to be obtained by
Contributor in connection with the execution, delivery and performance of the
Agreement and the transactions contemplated thereby between the parties to this
Agreement.
2.4 Ownership of the Partnership Interests. Contributor is the sole
owner of the Partnership Interests and owns the Partnership Interests free and
clear of any Liens of any nature and has full power and authority to convey the
Partnership Interests to the Operating Partnership free and clear of any Liens,
and, upon delivery of consideration for the Partnership Interests as herein
provided, the Operating Partnership will acquire good and valid title thereto,
free and clear of any Liens except Liens created in favor of the Operating
Partnership by the transactions contemplated hereby. There are no rights,
subscriptions, warrants, options, conversion rights, preemptive rights,
agreements, instruments or understandings of any kind outstanding to which
Contributor is a party (i) relating to the Partnership Interests or (ii) to
purchase, transfer or to otherwise acquire, or to in any way encumber, any of
the interests which comprise the Partnership Interests or any securities or
obligations of any kind convertible into any of the interests which comprise the
Partnership Interests or other equity interests or profit participation of any
kind in any of the Partnerships. Contributor will not consent to join in or in
any way effect the transfer of any Property Interest or Partnership Interest
prior to the Closing. No Contributor, nor any entity which is an Affiliate of
any Contributor, has any equity interest, either direct or indirect, in the
Properties, except for the Partnership Interests which are the subject of this
Agreement, or rights or interests in any other assets owned and controlled,
directly or indirectly by Xxxxxx X. Xxxxxxx III.
2.5 No Violation. To the Knowledge of Contributor, none of the
execution, delivery or performance of the Agreement, any agreement contemplated
thereby between the parties to this Agreement and the transactions contemplated
thereby between the parties to this Agreement does or will, with or without the
giving of notice, lapse of time, or both, (i) violate, conflict with, result in
a breach of, or constitute a default under or give to others any right of
termination, acceleration, cancellation or other right adverse to the Operating
Partnership of (A) the organizational documents, including the charters and
bylaws, if any, of Contributor, (B) any material agreement, document or
instrument to which Contributor is a party or any document or instrument by
which the Partnership Interests are bound or (C) any term or provision of any
judgment, order, writ, injunction, or decree binding on Contributor (or its
assets or properties), or
Exhibit D-3
require any approval, consent or waiver of, or make any filing with, any person
or governmental or regulatory authority or under any foreign, federal, state,
local or other law binding on Contributor (or its assets or properties), which
has or may be reasonably expected to have an adverse effect on Contributor, the
Partnership or any of its assets or properties, or (ii) result in the creation
of any Lien upon any of the Partnership Interests.
2.6 Non-Foreign Status. Contributor is a United States person (as
defined in Section 7701(a)(30) of the Code), and is, therefore, not subject to
the provisions of the Code relating to the withholding of sales proceeds to
foreign persons, and is not subject to any state withholding requirements.
Contributor will provide affidavits to this effect as provided for in Section
2.3(f) of the Agreement.
2.7 Withholding. Contributor shall execute at Closing such
certificates or affidavits reasonably necessary to document the inapplicability
of any federal or state withholding provisions, including without limitation
those referred to in Section 2.6 above. If Contributor fails to provide such
certificates or affidavits, the Operating Partnership's sole remedy will be to
withhold a portion of any payments otherwise to be made to Contributor as
required by the Code or applicable state law.
2.8 Investment Purposes. Contributor acknowledges its understanding
that the offering and issuance of the Partnership Units to be acquired pursuant
to the Agreement are intended to be exempt from registration under the
Securities Act of 1933, as amended and the rules and regulations in effect
thereunder (the "Act") and that the Operating Partnership's reliance on such
exemptions is predicated in part on the accuracy and completeness of the
representations and warranties of Contributor contained herein. In furtherance
thereof, Contributor represents and warrants to the Operating Partnership and
the Company as follows:
2.8.1 Investment. Contributor is acquiring the Partnership Units
solely for its own account for the purpose of investment and not as a nominee or
agent for any other person and not with a view to, or for offer or sale in
connection with, any distribution of any thereof. Contributor agrees and
acknowledges that it will not, directly or indirectly, offer, transfer, sell,
assign, pledge, hypothecate or otherwise dispose of (hereinafter, "Transfer")
any of the Partnership Units unless (i) the Transfer is pursuant to an effective
registration statement under the Act and qualification or other compliance under
applicable blue sky or state securities laws, or (ii) counsel for Contributor
(which counsel shall be reasonably acceptable to the Operating Partnership)
shall have furnished the Operating Partnership with an opinion, reasonably
satisfactory in form and substance to the Operating Partnership, to the effect
that no such registration is required because of the availability of an
exemption from registration under the Act and qualification or other compliance
under applicable blue sky or state securities laws. The term "Transfer" shall
not include any redemption of the Partnership Units or exchange of the
Partnership Units for REIT Shares pursuant to Section 8.6 of the OP Agreement.
Notwithstanding the foregoing, no Transfer shall be made unless it is permitted
under the OP Agreement.
2.8.2 Knowledge. Contributor is knowledgeable, sophisticated and
experienced in business and financial matters; Contributor has previously
invested in securities similar to the Partnership Units and fully understands
the limitations on transfer imposed by the
Exhibit D-4
Federal securities laws and as described in the Agreement. Contributor is able
to bear the economic risk of holding the Partnership Units for an indefinite
period and is able to afford the complete loss of his, her or its investment in
the Partnership Units; Contributor has received and reviewed all information and
documents about or pertaining to the Company, the Operating Partnership, the
business and prospects of the Company and the Operating Partnership and the
issuance of the Partnership Units as Contributor deems necessary or desirable,
has had cash flow and operations data for the Properties made available by the
Operating Partnership upon request and has been given the opportunity to obtain
any additional information or documents and to ask questions and receive answers
about such information and documents, the Company, the Operating Partnership,
the Properties, the business and prospects of the Company and the Operating
Partnership and the Partnership Units which Contributor deems necessary or
desirable to evaluate the merits and risks related to his, her or its investment
in the Partnership Units and to conduct its own independent valuation of the
Properties; and Contributor understands and has taken cognizance of all risk
factors related to the purchase of the Partnership Units. Contributor is a
sophisticated real estate investor. Contributor is relying upon its own
independent analysis and assessment (including with respect to taxes), and the
advice of Contributor's advisors (including tax advisors), and not upon that of
the Operating Partnership or any of the Operating Partnership's Affiliates, for
purposes of evaluating, entering into, and consummating the transactions
contemplated by the Agreement.
2.8.3 Holding Period. Contributor acknowledges that it has been
advised that (i) the Partnership Units and the common stock of the Company (the
"Common Stock") into which the Partnership Units may be exchanged in certain
circumstances must be held indefinitely, and Contributor must continue to bear
the economic risk of the investment in the Partnership Units (and any Common
Stock that might be exchanged therefor), unless they are subsequently registered
under the Act or an exemption from such registration is available (it being
understood that the Operating Partnership has no intention of so registering the
Partnership Units), (ii) a restrictive legend in the form hereafter set forth
shall be placed on the certificates representing the Partnership Units (and any
Common Stock that might be exchanged therefor), and (iii) a notation shall be
made in the appropriate records of the Operating Partnership (and the Company)
indicating that the Partnership Units (and any Common Stock that might be
exchanged therefor) are subject to restrictions on transfer.
2.8.4 Accredited Investor. Contributor is an "accredited
investor" (as such term is defined in Rule 501 (a) of Regulation D under the
Act). Contributor has previously provided the Operating Partnership with a duly
executed Accredited Investor Questionnaire. No event or circumstance has
occurred since delivery of such Questionnaire to make the statements contained
therein false or misleading.
2.8.5 Legending. Each certificate representing the Partnership
Units (and any Common Stock that might be exchanged therefor) shall bear the
following legend:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF
ANY STATE AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION, UNLESS THE TRANSFEROR DELIVERS TO THE
COMPANY AN OPINION OF
Exhibit D-5
COUNSEL SATISFACTORY TO THE COMPANY, TO THE EFFECT THAT THE PROPOSED SALE,
TRANSFER OR OTHER DISPOSITION MAY BE EFFECTED WITHOUT REGISTRATION UNDER
THE ACT AND UNDER APPLICABLE STATE SECURITIES OR "BLUE SKY" LAWS;
In addition, the Common Stock for which the Partnership Units might
be exchanged shall also bear a legend which generally provides the following:
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON BENEFICIAL AND CONSTRUCTIVE OWNERSHIP AND TRANSFER FOR THE
PURPOSE OF THE CORPORATION'S MAINTENANCE OF ITS STATUS AS A REAL ESTATE
INVESTMENT TRUST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"). SUBJECT TO CERTAIN FURTHER RESTRICTIONS AND EXCEPT AS EXPRESSLY
PROVIDED IN THE CORPORATION'S ARTICLES OF AMENDMENT AND RESTATEMENT, (i)
NO PERSON MAY BENEFICIALLY OR CONSTRUCTIVELY OWN SHARES OF THE
CORPORATION'S COMMON STOCK IN EXCESS OF 9.8% (BY VALUE OR BY NUMBER OF
SHARES, WHICHEVER IS MORE RESTRICTIVE) OF THE OUTSTANDING COMMON STOCK OF
THE CORPORATION; (ii) NO PERSON MAY BENEFICIALLY OR CONSTRUCTIVELY OWN
SHARES OF COMMON STOCK THAT WOULD RESULT IN THE CORPORATION BEING "CLOSELY
HELD" UNDER SECTION 856(h) OF THE CODE OR OTHERWISE CAUSE THE CORPORATION
TO FAIL TO QUALIFY AS A REIT; AND (iii) NO PERSON MAY TRANSFER SHARES OF
COMMON STOCK IF SUCH TRANSFER WOULD RESULT IN THE CAPITAL STOCK OF THE
CORPORATION BEING OWNED BY FEWER THAN 100 PERSONS. ANY PERSON WHO
BENEFICIALLY OR CONSTRUCTIVELY OWNS OR ATTEMPTS TO BENEFICIALLY OR
CONSTRUCTIVELY OWN SHARES OF COMMON STOCK IN VIOLATION OF THE ABOVE
LIMITATIONS MUST IMMEDIATELY NOTIFY THE CORPORATION. IF ANY OF THE
RESTRICTIONS ON TRANSFER OR OWNERSHIP ARE VIOLATED, THE SHARES OF COMMON
STOCK REPRESENTED HEREBY WILL BE AUTOMATICALLY TRANSFERRED TO THE TRUSTEE
OF A TRUST FOR THE BENEFIT OF ONE OR MORE CHARITABLE BENEFICIARIES. IN
ADDITION, THE CORPORATION MAY REDEEM SHARES UPON THE TERMS AND CONDITIONS
SPECIFIED BY THE BOARD OF DIRECTORS IN ITS SOLE DISCRETION IF THE BOARD OF
DIRECTORS DETERMINES THAT OWNERSHIP OR A TRANSFER OR OTHER EVENT MAY
VIOLATE THE RESTRICTIONS DESCRIBED ABOVE. FURTHERMORE, UPON THE OCCURRENCE
OF CERTAIN EVENTS, ATTEMPTED TRANSFERS IN VIOLATION OF THE RESTRICTIONS
DESCRIBED ABOVE MAY BE VOID AB INITIO. ALL TERMS IN THIS LEGEND THAT ARE
DEFINED IN THE ARTICLES OF AMENDMENT AND RESTATEMENT OF THE CORPORATION
SHALL HAVE THE MEANINGS ASCRIBED TO THEM IN THE ARTICLES OF AMENDMENT AND
RESTATEMENT OF THE CORPORATION, AS THE SAME MAY BE AMENDED FROM TIME TO
TIME, A COPY OF WHICH, INCLUDING THE RESTRICTIONS ON TRANSFER AND
OWNERSHIP, WILL BE FURNISHED TO EACH HOLDER OF SHARES OF COMMON STOCK ON
REQUEST AND WITHOUT CHARGE. REQUESTS FOR SUCH A COPY MAY BE DIRECTED TO
THE SECRETARY OF THE CORPORATION AT ITS PRINCIPAL OFFICE.
2.9 No Brokers. Neither the Contributor nor any of the Contributor's
respective officers, directors or employees, to the extent applicable, has
employed or made any agreement with any broker, finder or similar agent or any
person or firm which will result in the
Exhibit D-6
obligation of the Operating Partnership or any of its Affiliates to pay any
finder's fee, brokerage fees or commissions or similar payment in connection
with the transactions contemplated by the Agreement. The provisions of this
Section 2.9 shall survive the Closing or termination of this Agreement.
2.10 Solvency. Contributor has been and will be solvent at all times
prior to and immediately following the transfer of its Partnership Interests to
the Operating Partnership.
2.11 Taxes. To Contributor's Knowledge, no tax lien or other charge
exists or will exist upon consummation of the transactions contemplated hereby
with respect to the Partnership Interests.
2.12 Litigation. To Contributor's Knowledge, there is no litigation
or proceeding, either judicial or administrative, pending or overtly threatened,
affecting all or any portion of Contributor's Partnership Interests or
Contributor's ability to consummate the transactions contemplated hereby.
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 Partnership Interests, which in any such
case would impair such Contributor's ability to enter into and perform all of
its obligations under the Agreement.
2.13 NASD Affiliation. Each Contributor represents severally that
neither it nor any Affiliate of such Contributor is a member, Affiliate of a
member or person associated with a member of the National Association of
Securities Dealers, Inc. ("NASD"). Each Contributor further represents severally
that neither it nor any of its Affiliates owns any stock or other securities of
any NASD member not purchased in the open market, or has made any outstanding
subordinated loans to a NASD member. (A company or natural person is presumed to
control a member of the NASD and is therefore presumed to constitute an
Affiliate of such member if the Company or person is the beneficial owner of 10%
or more of the outstanding securities of a member which is a corporation.
Additionally, a natural person is presumed to control a member of the NASD and
is therefore presumed to constitute an Affiliate of such a member if such person
has the power to direct or cause the direction of the management or policies of
such member.)
2.14 Covenant to Remedy Breaches. Contributor covenants to use all
reasonable efforts within its control (a) to prevent the breach of any
representation or warranty of Contributor hereunder, (b) to satisfy all
covenants of Contributor hereunder and (c) use commercially reasonable efforts
to promptly cure any breach of a representation, warranty or covenant of
Contributor hereunder upon its learning of same.
ARTICLE 3 -- INDEMNIFICATION
3.1 Survival Of Representations And Warranties; Remedy For Breach.
(a) Subject to Section 3.6, all representations and warranties
contained in this Exhibit D or in any Schedule or certificate delivered pursuant
hereto shall survive the Closing.
(b) Notwithstanding anything to the contrary in the Agreement or
this Exhibit D, no Contributor hereto shall be liable under this Exhibit D or
the Agreement for monetary
Exhibit D-7
damages (or otherwise) for breach of any of its representations, warranties and
covenants contained in this Exhibit D or the Agreement, or in any Schedule,
certificate or affidavit delivered by it pursuant thereto, other than pursuant
to the succeeding provisions of this Section 3.
3.2 General Indemnification.
(a) Contributor shall indemnify and hold harmless the Operating
Partnership, the Company, and their Affiliates and each of their respective
directors, officers, employees, agents, representatives and Affiliates (each of
which is an "Indemnified Party") from and against any and all Claims, losses,
damages, liabilities and expenses, including, without limitation, amounts paid
in settlement, reasonable attorneys' fees, costs of investigation, costs of
investigative, judicial or administrative proceedings or appeals therefrom, and
costs of attachment or similar bonds (collectively, "Losses"), asserted against,
imposed upon or incurred by the Indemnified Party in connection with or as a
result of any breach of a representation, warranty or covenant of Contributor
contained in the Agreement or in any Schedule, Exhibit, certificate or affidavit
or in any other document delivered by such Contributor pursuant to the
Agreement.
(b) Contributor shall indemnify and hold harmless the Indemnified
Parties from and against any and all Losses asserted against, imposed upon or
incurred by the Indemnified Parties in connection with or as a result of all
fees and expenses of Contributor in connection with the transactions
contemplated by the Agreement.
3.3 Payment of Indemnification. Contributor shall (as provided in
Section 3.5(b)) satisfy its obligations hereunder by the prompt delivery (paid
promptly as and when expenses are incurred) to an Indemnified Party of its
Partnership Units (if any), or at its election, by payment in cash. Any
Partnership Units delivered to an Indemnified Party hereunder shall be valued
based upon the initial public offering price of the Common Stock.
Notwithstanding any provision of the Agreement or this Exhibit D, no Indemnified
Party shall have the right to receive or recover punitive damages against any
Contributor by reason of any breach under or in connection with the Agreement or
any schedule, exhibit, certificate or affidavit or any other document delivered
by such Contributor pursuant to the Agreement, and each Indemnified Party hereby
waives any and all right to receive such punitive damages.
3.4 Notice and Defense of Claims. As soon as reasonably practicable
after receipt by the Indemnified Party of notice of any liability or claim
incurred by or asserted against the Indemnified Party that is subject to
indemnification under this Article 3, the Indemnified Party shall give notice
thereof to the Contributor, including liabilities or claims to be applied
against the indemnification baskets established pursuant to Section 3.5 hereof.
The Indemnified Party may at its option demand indemnity under this Article 3 as
soon as a claim has been threatened by a third party, regardless of whether an
actual Loss has been suffered, so long as the Indemnified Party shall in good
faith determine that such claim is not frivolous and that the Indemnified Party
may be liable for, or otherwise incur, a Loss as a result thereof and shall give
notice of such determination to the Contributor. The Indemnified Party shall
assume the defense of any such claim by counsel selected by Indemnified Party
and reasonably satisfactory to Contributor, and may settle or otherwise dispose
of the same; PROVIDED, HOWEVER, that the
Exhibit D-8
Contributor may at all times participate in such defense at its own expense,
which shall not be reimbursed by Indemnified Party.
3.5 Limitations on and Threshold for Indemnification Under Section
3.2.
(a) Contributor shall not be liable under Section 3.2 hereof unless
and until the total amount recoverable by the Indemnified Parties under Section
3.2 exceeds $100,000; PROVIDED, HOWEVER, that claims for Losses arising out of a
breach of representation or warranty contained in sections 2.1, 2.2, 2.4, 2.6,
2.7, and 2.9 hereof shall not be subject to such threshold amount but shall be
recoverable from the first dollar of Losses; and PROVIDED FURTHER, that once the
total amount recoverable by the Indemnified Parties under Section 3.2 hereof
exceeds $100,000 in the aggregate, Contributor's obligation under Section 3.2
hereof shall be for the full amount of such obligation.
(b) Notwithstanding anything contained herein to the contrary,
Contributor shall not be liable or obligated to make payments under this Article
3 to the extent such payments in the aggregate would exceed the Total
Consideration received by Contributor at the Closing. Notwithstanding anything
contained herein to the contrary, the Indemnified Parties shall look first to
Contributor's Partnership Units (if any) for indemnification under this Article
3 (and agree to treat any return of Partnership Units as an adjustment to the
consideration delivered to Contributor pursuant to the Formation Transactions)
and then to any distributions received by Contributor in connection with such
Contributor's Partnership Units. Contributor may make any payments due by it
under this Article 3 in cash.
3.6 Limitation Period.
(a) Notwithstanding the foregoing, any claim for indemnification
under Section 3.2 hereof must be asserted in writing by the Indemnified Party,
stating the nature of the Losses and the basis for indemnification therefor:
(i) within one year after the Closing in the case of a claim
under Section 3.2 hereof (other than a claim under Section 3.2 (a) based upon a
breach of the representations, and warranties of Contributor set forth in
Sections 2.1, 2.2, 2.4, 2.6, 2.7 and 2.9 hereof); and
(ii) prior to the expiration of the applicable statutes of
limitations in the case of a claim under Section 3.2 (a) based upon a breach of
the representations and warranties of Contributor set forth in Sections 2.1,
2.2, 2.4, 2.6, 2.7 and 2.9 hereof.
(b) If so asserted in writing within one year after the Closing or
prior to the expiration of the applicable statute of limitation, as applicable,
such claims for indemnification shall survive until resolved by mutual agreement
between Contributor and the Indemnified Party or by judicial determination. Any
claim for indemnification not so asserted in writing within one year after the
Closing or prior to the expiration of the applicable statute of limitation, as
applicable, shall not thereafter be asserted and shall forever be waived.
Exhibit D-9
EXHIBIT G
TO
CONTRIBUTION AGREEMENT
SALE LIMITATIONS AND DEBT GUARANTEES
ARTICLE 1--ADDITIONAL DEFINED TERMS
Agreement: Means the Contribution Agreement to which this Exhibit G
is attached.
Code: Means the Internal Revenue Code of 1986, as amended, and
references to sections of the Code shall include any successor provisions
thereto.
Disposition: Means any sale, assignment, pledge, encumbrance,
hypothecation, mortgage, exchange, or any swap agreement or other arrangement
that transfers all or a portion of the economic consequences associated with the
Partnership Units of the Contributor, provided that the following shall not
constitute Dispositions: (i) a pledge of all or a portion of the Partnership
Units of the Contributor to secure bona fide indebtedness that does not exceed
sixty percent (60%) of the value of the pledged Partnership Units of the
Contributor at the time such indebtedness is incurred so long as no foreclosure
has occurred; (ii) any pledge of Partnership Units to the Operating Partnership;
and (iii) a Permitted Disposition.
General Partner: Means the general partner of the Operating
Partnership.
Guarantee Agreement: Means an agreement between the Operating
Partnership, the Contributor or another Guarantee Partner and possibly a lender
(or with a lender as a third party beneficiary), pursuant to which the
Contributor or such other Guarantee Partner guarantees debt of the Operating
Partnership, which guarantee may be on a "bottom dollar basis" provided it is on
a pari passu basis with the other Guarantee Partners and/or other partners of
the Operating Partnership, and which agreement may be in the form of a guarantee
or contribution agreement. The initial Guarantee Agreement shall be entered into
prior to or contemporaneously with the closing of the Public Offering.
Guarantee Amount: Shall mean an amount specified by Contributor
which is set forth in the Guarantee Agreement for the Contributor, provided the
aggregate Guarantee Amount for the Contributor shall not exceed Sixty-Five
Million Dollars ($65,000,000).
Guaranteed Debt: Means the debt guaranteed by the Contributor or
other Guarantee Partner pursuant to a Guaranty Agreement.
Guarantee Opportunity: Shall have the meaning set forth in Section
3(a).
Guarantee Partner: Means a person who guarantees debt of the
Operating Partnership in connection with (i) their contribution of property to
the Operating Partnership in exchange for Partnership Units in the Formation
Transactions; or (ii) their contribution of property to the Operating
Partnership pursuant to the Operating Partnership's exercise of rights under an
Option Agreement.
Exhibit G
Option Agreement: Means an agreement entered into or acquired by the
Operating Partnership in connection with the Formation Transactions pursuant to
which the Operating Partnership has the right to require the contribution of
certain properties (or indirect interests therein) to the Operating Partnership,
to the extent such contribution may be made in exchange for Partnership Units.
Partnership Units Sale Restriction: The Contributor shall have
satisfied this requirement with respect to a period if at the end of such
period, (i) aggregate Dispositions by the Contributor of Partnership Units
received in the Formation Transactions or pursuant to an Option Agreement have
not caused the Partnership Units then owned by the Contributor to be less than
fifty percent (50%) of the aggregate Partnership Units issued to the Contributor
in connection with the Formation Transactions and pursuant to an Option
Agreement; and (ii) the "Partnership Units Sale Restriction" set forth in
Exhibit F to the Contribution Agreement by and between the Operating
Partnership, Xxxxxx X. Xxxxxxx III and each of the entities listed on Exhibit A
attached thereto (the "Xxxxxx X. Xxxxxxx III Contribution Agreement") has been
satisfied. Exhibit F to the Xxxxxx X. Xxxxxxx III Contribution Agreement
provides that the contributors thereunder will notify Contributor in the event
that they cease to satisfy the partnership unit sales restriction thereunder.
Permitted Disposition: Means a Disposition to (i) a member of the
immediate family or an affiliate of the applicable Contributor, (ii) a
charitable organization a contribution to which would be deductible pursuant to
Section 170 of the Code, (iii) any partnership, limited liability company or
trust, the partners, members or beneficiaries, as applicable, of which are
exclusively one or more of the Contributor or members of the immediate family or
affiliates of the Contributor and/or a charitable organization a contribution to
which would be deductible pursuant to Section 170 of the Code, or (iv) a
beneficiary, partner, member or shareholder by the trust, partnership, limited
liability company or corporation in which such person owns an interest, provided
that any such Disposition shall not involve a Disposition for value (other than
the issuance or redemption of an interest in the transferor or a reduction in
the transferor's share of liabilities of the Operating Partnership); provided
further that for purposes of the Partnership Units Sale Restriction, the
Contributor shall be treated as continuing to own any Partnership Units which
were subject to a Permitted Disposition unless and until there has been a
Disposition by a permitted transferee, which shall be treated as a Disposition
by the Contributor.
Protected Period: Means for each Property and the Guarantee
Opportunity, the period commencing on the closing date of the Formation
Transactions and ending on the "Initial Period" anniversary of the closing date
of the Formation Transactions, provided, however, that the Protected Period
shall be increased by successive one-year extension periods, if the Contributor
has satisfied the Partnership Units Sale Restriction at the expiration of the
prior period, with the Contributor's final extension period ending on the "Final
Period" anniversary of the closing date of the Formation Transactions.
Exhibit G
The Initial Period and Final Period for each Property and the
Guarantee Opportunity are as follows:
Property Initial Period Final Period
-------- -------------- ------------
Gas Company Tower 0xx 00xx
Xxxxxxx Xxxxx 0xx 00xx
Xxxxxx 9th 12th
KPMG Tower 9th 12th
Plaza Las Xxxxxxx 7th 10th
(excluding the hotel)
Xxxxx Xxxxx Xxxxx 0xx 00xx
Xxxxx Xxx Xxxxxxx Xxxxx Xxxx Xxxx
808 South Olive None None
Guarantee Opportunity 9th 12th
Qualifying Debt: Means indebtedness of the Operating Partnership
that is described in (i), (ii) or (iii) below:
(i) In the case of indebtedness secured by any property or
other asset of the Operating Partnership and not recourse to all of
the assets of the Operating Partnership, the aggregate amount of all
indebtedness secured by such property must not exceed seventy-five
percent (75%) of the fair market value (as determined by the Board
in its reasonable judgment) of such property at the time that the
Guarantee Opportunity is first effective. Nonrecourse debt of a
subsidiary of the Operating Partnership shall be treated as debt of
the Operating Partnership provided the Operating Partnership
guarantees such debt and will permit the Contributor to indemnify
the Operating Partnership from certain losses associated with such
guarantee on terms which are similar to those set forth in the
Contributor's Guarantee Agreement and reasonably acceptable to the
Operating Partnership and the Contributor;
(ii) In the case of indebtedness that is recourse to all of
the assets of the Operating Partnership, the indebtedness is at all
times the most senior indebtedness recourse to all the assets of the
Operating Partnership (but there shall not be a prohibition against
other indebtedness that is pari passu with such indebtedness) and
the amount of the indebtedness outstanding is at all times at least
equal to one hundred fifty percent (150%) of the aggregate amount of
the guarantees provided with respect to such indebtedness; or
(iii) Any other indebtedness approved by Xxxxxx X. Xxxxxxx III
(or his designee or successor) or the Contributor in each such
person's sole and absolute discretion.
Exhibit G
In addition, debt which satisfies requirement (i) or (ii) above (but
not requirement (iii) above) will not be Qualifying Debt if and when either of
the following occurs:
(i) There are other guarantees with respect to the same
indebtedness that are prior to (i.e., with less economic risk) the
Guarantee Opportunity provided to the Contributor pursuant hereto;
or
(ii) There are other guarantees with respect to the same
indebtedness that are pari passu with the Guarantee Opportunity
provided to the Contributor pursuant hereto, and the amount of all
such guarantees (including the Contributor's guarantee) exceed
seventy five percent (75%) of the fair market value of the real
estate which is security for such indebtedness measured at the time
any such guarantee is first effective (as determined by the Board in
its reasonable judgment).
Notwithstanding the foregoing, there shall be no prohibition on
guarantees of other portions of Qualifying Debt, and the above limitations shall
not apply with respect to any guarantee of such debt by the Company, provided
the Contributor is offered the opportunity to enter into an agreement with the
Company providing that the Contributor will indemnify the Company from certain
losses associated with such debt on terms which are similar to those set forth
in the Contributor's Guarantee Agreement with respect to the debt of the
Operating Partnership.
ARTICLE 2--SALE RESTRICTION ON PROTECTED PROPERTY
(a) The Operating Partnership agrees for the benefit of the
Contributor, for the term of the Protected Period, not to directly or indirectly
sell, exchange, or otherwise dispose of any Property or any interest therein
(including without limitation, by way of merger, sale of assets or otherwise)
without the consent of Xxxxxx X. Xxxxxxx III (or his designee or successor) or
the Contributor, which may be given or withheld in each such person's sole and
absolute discretion.
(b) Section 2(a) shall not apply to the disposition of a Property if
(i) such disposition qualifies as a like-kind exchange under Section 1031 of the
Code, or an involuntary conversion under Section 1033 of the Code, or other
transaction (including, but not limited to, a contribution of property to any
entity that qualifies for the nonrecognition of gain under Section 721 or
Section 351 of the Code, or a merger or consolidation of the Operating
Partnership with or into another entity that qualifies for taxation as a
"partnership" for federal income tax purposes (a "Successor Partnership")), in
each case that does not result in the recognition of any taxable income or gain
to the Contributor with respect to the Contributor's Partnership Units;
provided, however, that: (1) in the event of a disposition of a Property under
Section 1031 or Section 1033 of the Code or pursuant to another tax deferred
transaction, any property that is acquired in exchange for or as a replacement
for such Property shall thereafter be considered that Property for purposes of
this Exhibit G; (2) if a Property is transferred to another entity in a
transaction in which gain or loss is not recognized, the interest of the
Operating Partnership in such entity shall thereafter be considered that
Property for purposes of this Exhibit G, and if the acquiring entity's
disposition of such Property would cause the Contributor to
Exhibit G
recognize gain or loss as a result thereof, the transferred Property still shall
be considered that Property for purposes of this Exhibit G; and (3) in the event
of a merger or consolidation involving the Operating Partnership and a Successor
Partnership, the Successor Partnership shall have agreed in writing for the
benefit of the Contributor that all of the restrictions of this Exhibit G shall
apply with respect to each Property; (ii) with respect to the Contributor, the
adjusted taxable basis of the Property has increased in the hands of the
Operating Partnership to fair market value as a result of a taxable disposition
of the Partnership Units received in the Formation Transactions or otherwise,
such that a taxable disposition of such Property by the Operating Partnership
would not result in the allocation of taxable gain to the Contributor pursuant
to Section 704(c) of the Code; or (iii) such disposition is permitted with
respect to all of the "Contributors" under the Xxxxxx X. Xxxxxxx III
Contribution Agreement pursuant to Section 2(b)(ii) of such agreement.
(c) Notwithstanding any provision of this Exhibit G, the rights and
remedies of the Contributor for a breach or violation of the covenants set forth
in Section 2(a) shall include a claim for damages (including, without
limitation, incidental, consequential, indirect and special damages, lost
profits, lost revenues and loss of business, whether foreseeable or not) against
the Operating Partnership or any Successor Partnership. All such damages shall
be indemnifiable under Section 3.3 of the Agreement and shall be treated as
"Losses" for purposes thereof. Any claim, dispute or controversy arising out of,
or in connection with, or in relation to the interpretation, performance or
breach of this Exhibit G shall be subject to the provisions of Section 7.1 of
the Agreement.
ARTICLE 3--AVAILABILITY OF GUARANTEES
(a) During the Protected Period, the Operating Partnership shall use
commercially reasonable efforts to make available to the Contributor the
opportunity (a "Guarantee Opportunity") to make a guarantee of Qualifying Debt
of the Operating Partnership pursuant to a Guaranty Agreement in an amount at
least equal to the Guarantee Amount. The Contributor may provide its Guarantee
Agreement provided such agreement shall not expand Contributor's rights
hereunder and shall be subject to the reasonable comments and approval of the
Operating Partnership. During the Protected Period, if Guaranteed Debt is to be
repaid and, immediately after such repayment, the outstanding amount of such
Guaranteed Debt would be less than the Guarantee Amount with respect to such
Guaranteed Debt, the Operating Partnership shall use commercially reasonable
efforts to provide to the Contributor a new Guarantee Opportunity with respect
to Qualifying Debt in an amount equal to the Guaranteed Debt being repaid. In
the event that the Operating Partnership is required to use commercially
reasonable efforts to offer a Guarantee Opportunity pursuant to this Section
3(a), the Operating Partnership will provide the Contributor notice of the type,
amount and other relevant attributes of the Qualifying Debt with respect to
which the Guarantee Opportunity is offered at least ten (10) business days, to
the extent reasonably practicable, but in no event less than five (5) business
days prior to the earlier of the closing of the incurrence of such debt and the
scheduled repayment of the existing Guaranteed Debt. In the event that the
Operating Partnership or a related party repurchases outstanding Guaranteed
Debt, whether or not such debt is retired, the repurchase thereof shall be
treated as a repayment of the Guaranteed Debt for purposes of this Article 3.
Exhibit G
(b) The Contributor acknowledges that Guarantee Partners other than
the Contributor have the right to guarantee debt of the Operating Partnership on
terms which are similar to the terms set forth in this Exhibit G. The Operating
Partnership shall use commercially reasonable efforts to offer each Guarantee
Opportunity to the Guarantee Partners (including the Contributor) on a pro rata
basis, based on the proportion of each Guarantee Partner's Guarantee Amount to
the aggregate Guarantee Amounts of all Guarantee Partners, unless the Guarantee
Partners agree to accept Guarantee Opportunities on other than a pro rata basis.
(c) The Operating Partnership agrees to file its tax returns taking
the position that the Guaranteed Debt is allocable to the Contributor
guaranteeing such debt for purposes of Section 752 of the Code, absent a
determination to the contrary by the Internal Revenue Service. However, the
Operating Partnership makes no representation or warranty to the Contributor
that any guarantee entered into pursuant to Section 3(a) shall be respected for
federal income tax purposes so as to enable the Contributor to be considered to
bear the "economic risk of loss" with respect to the indebtedness thereby
guaranteed by the Contributor for purposes of either Section 752 or Section 465
of the Code.
(d) Notwithstanding any provision of this Exhibit G, the rights and
remedies of the Contributor for a breach or violation of the covenants set forth
in Section 3(a) shall include a claim for damages (including, without
limitation, incidental, consequential, indirect and special damages, lost
profits, lost revenues, and loss of business, whether foreseeable or not)
against the Operating Partnership or any Successor Partnership. All such damages
shall be indemnifiable under Section 3.3 of the Agreement and shall be treated
as "Losses" for purposes thereof. Any claim dispute or controversy arising out
of, or in connection with, or in relation to the interpretation, performance or
breach of this Exhibit G shall be subject to the provisions of Section 7.1 of
the Agreement.
(e) The Operating Partnership shall not be obligated to undertake
efforts to maintain any level of indebtedness in excess of the amounts
specifically required to meet the obligations set forth above in this Article 3.
ARTICLE 4-- CALCULATION OF DAMAGES
The Operating Partnership acknowledges that any breach or violation
by it of its obligations under this Exhibit G would cause substantial harm to
the Contributor, and the Operating Partnership agrees that any calculation of
damages payable to the Contributor based solely on the time value of money would
not adequately compensate the Contributor for the harm caused by any breach by
the Operating Partnership of its obligations pursuant to Articles 2 or Article 3
hereof. In addition, for purposes of determining any damages payable by the
Operating Partnership or a Successor Partnership to the Contributor pursuant to
Articles 2 or 3 hereof, the tax effect on the Contributor of any breach or
violation of this Exhibit G by the Operating Partnership shall be considered.
Exhibit G
ARTICLE 5 -- ACKNOWLEDGEMENT OF CONTRIBUTOR
The Contributor acknowledges that neither Xxxxxx X. Xxxxxxx III nor
his heirs, estate or other successors by operation of law shall have any duty or
obligation to the Contributor with respect to any decision made or action taken
by any of them under Exhibit F to the Xxxxxx X. Xxxxxxx III Contribution
Agreement, including, without limitation, consenting to any sale, accepting
indebtedness as "Qualifying Debt" or any other matter. The Contributor further
acknowledges that it shall not have any claim against Xxxxxx X. Xxxxxxx III or
his successors or assigns for any adverse tax consequences suffered by the
Contributor as a result of any action taken by Xxxxxx X. Xxxxxxx III or any of
his heirs, estate or other successors by operation of law under Exhibit F to the
Xxxxxx X. Xxxxxxx III Contribution Agreement.
Exhibit G
