SECOND AMENDMENT TO CONTRIBUTION AGREEMENT
EXHIBIT 10.21
SECOND AMENDMENT TO
CONTRIBUTION AGREEMENT
CONTRIBUTION AGREEMENT
THIS SECOND AMENDMENT TO CONTRIBUTION AGREEMENT (this “Amendment”) is made and entered into as
of June 25, 2010, by and among Welsh Property Trust, L.P. (the “Operating Partnership”) and those
parties listed on the signature page hereto (each such party, a “Contributor” and, collectively,
the “Contributors”).
RECITALS
A. Operating Partnership and the Contributors are parties to that certain Contribution
Agreement effective as of March 1, 2010, as amended by that certain First Amendment to Contribution
Agreement dated June 2, 2010 (as amended, the “Contribution Agreement”), pursuant to which the
Contributors agreed to contribute their ownership interests in Contributed Entities defined in the
Contribution Agreement to the Operating Partnership.
B. The parties to the Contribution Agreement desire to further amend the Contribution
Agreement as set forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, the terms, conditions and agreements set
forth below, and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby covenant and agree to be bound as follows:
1. Capitalized Terms. Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to them in the Contribution Agreement, unless the context shall
otherwise require.
2. Definition of PPM. All references in the Contribution Agreement to the PPM are
hereby amended to refer to the Confidential Offering Memorandum dated December 23, 2009, as
supplemented by that Supplement No. 1 dated February 16, 2010 and as further supplemented by that
Supplement No. 2 dated June 10, 2010.
3. Contribution Value. Section 1.02 of the Contribution Agreement is hereby deleted
in its entirety and replaced with the following:
“Section 1.02 CONSIDERATION. At the Closing and subject to the terms and
conditions contained in this Agreement, each Contributor hereby irrevocably agrees to
accept, in exchange for its Contributed Interests, a number of OP Units equal to such
Contributor’s aggregate total value set forth on Exhibit A hereto (the
“Contributor’s Formation Transaction Value”), as the same may be adjusted in accordance with
Section 1.04 below, divided by the Factor.”
4. Issuance of OP Units. Section 1.03 of the Contribution Agreement is hereby deleted
in its entirety and replaced with the following:
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“Section 1.03 ISSUANCE OF OP UNITS. At the Closing and subject to the terms
and conditions contained in this Agreement, the Operating Partnership shall, in exchange for
the Contributed Interests contributed by each Contributor, issue to such Contributor a
number of OP Units equal to such Contributor’s Formation Transaction Value, as the same may
be adjusted in accordance with Section 1.04 below, divided by the Factor. No
fractional OP Units shall be issued pursuant to this Agreement. If aggregating all OP Units
that a Contributor would otherwise be entitled to receive as a result of any of the
Formation Transactions would require the issuance of a fractional OP Unit, the number of OP
Units which such Contributor shall be entitled to receive shall be rounded to the nearest
whole number.”
5. Contribution Value Adjustment. Section 1.04(c) of the Contribution Agreement is
hereby amended by adding the following sentience to the end of Section 1.04(c):
“The Operating Partnership shall have the right, in its sole discretion, to distribute
cash (or require the Contributed Entity to distribute cash) to the Contributors at Closing,
in lieu of increasing the Contributor’s Formation Transaction Value, if the Cut-Off Date
Cash Balance is greater than the Target Cash Balance.”
6. Defined Terms. Section 8.02 of the Contribution Agreement is amended to add the
definition of “Factor” as set forth below:
“(ff) “Factor” means $16.25.”
7. Term of Agreement. Section 2.06 of the Contribution Agreement is hereby amended to
delete the phrase “June 30, 2010” and to replace it with “July 31, 2010.”
8. Remaining Terms. Except as expressly set forth in this Amendment, all other terms
and provisions of the Contribution Agreement shall remain in full force and effect.
9. Governing Law. This Amendment shall be governed by, and construed in accordance
with, the laws of the State of Delaware, regardless of any laws that might otherwise govern under
applicable principles of conflicts of laws thereof. Each of the parties hereto hereby consents to
(i) the non-exclusive jurisdiction of the courts of the State of Delaware, and (ii) service of
process by mail.
10. Counterparts. This Amendment may be executed in any number of counterparts, each
of which shall be deemed an original and all of which shall constitute but one agreement.
11. Binding Effect. This Amendment shall be binding upon the parties to the
Contribution Agreement, and their respective successors and permitted assigns.
12. Third Party Beneficiaries. This Amendment shall not confer any rights or remedies
upon any person or entity other than the parties to the Contribution Agreement, and their
respective successors and permitted assigns.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have entered into this Amendment as of the date first above
written.
| WELSH PROPERTY TRUST, L.P. | ||||||
| By: | WELSH PROPERTY TRUST, LLC | |||||
| Its General Partner | ||||||
| By: Name: |
/s/ Xxxxx X. Xxxxxxxxxxx
|
|||||
| Title: | Chief Executive Officer | |||||
| WELSH US REAL ESTATE FUND, LLC | ||||||
| By: | WELSH US FUND MANAGER, LLC | |||||
| By: Name: |
/s/ Xxxxxx X. Xxxxx
|
|||||
| Title: | Chief Executive Officer | |||||
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