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EXHIBIT 2.1
AGREEMENT FOR CONTRIBUTION OF INTERESTS
IN
▇▇▇▇ ▇▇▇▇▇▇▇▇ INVESTMENT COMPANY
BY AND AMONG
THE MENDIK COMPANY, L.P.,
MENDIK 1740 CORP.
AND
CERTAIN PARTNERS OF ▇▇▇▇ ▇▇▇▇▇▇▇▇ INVESTMENT COMPANY
IN RELIANCE UPON CERTAIN EXEMPTIONS FROM REGISTRATION, THE UNITS TO BE ISSUED
HEREUNDER WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. ACCORDINGLY, NO UNITS
MAY BE SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED UNLESS
SUBSEQUENTLY REGISTERED UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE
SECURITIES LAWS, OR UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE, AND
UNLESS THE OTHER TRANSFER RESTRICTIONS ON SUCH UNITS HAVE BEEN SATISFIED.
CONTRIBUTORS SHOULD BE AWARE THAT THEY WILL BE REQUIRED TO BEAR THE FINANCIAL
RISKS OF THEIR OWNERSHIP OF UNITS FOR AN INDEFINITE PERIOD OF TIME.
IN MAKING AN INVESTMENT DECISION CONTRIBUTORS MUST RELY ON THEIR OWN
EXAMINATION OF THE PERSON OR ENTITY CREATING THE SECURITIES AND THE TERMS OF
THE OFFERING, INCLUDING THE MERITS AND RISKS INVOLVED. THESE SECURITIES HAVE
NOT BEEN RECOMMENDED BY ANY FEDERAL OR STATE SECURITIES COMMISSION OR
REGULATORY AUTHORITY. FURTHERMORE, THE FOREGOING AUTHORITIES HAVE NOT
CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY OF THIS DOCUMENT. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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TABLE OF CONTENTS
Page
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1. Contributions............................................................ 2
2. Consideration; Distributions Prior to Closing............................ 2
3. Acceptance of Contributions.............................................. 3
4. Closing Time and Place................................................... 3
5. Representations and Warranties of Operating Partnership.................. 3
5.1 Organization, Power and Authority, and Qualification................. 3
5.2 Authority Relative to this Agreement................................. 3
5.3 Binding Obligation................................................... 4
5.4 Insolvency........................................................... 4
5.5 Brokers.............................................................. 4
5.6 Valid Consideration.................................................. 4
6. Representations, Warranties and Agreements of Contributors............... 4
6.1 Title; Authority to Assign........................................... 5
6.2 No Breach of Partnership Agreement................................... 5
6.3 Insolvency........................................................... 5
6.4 Litigation........................................................... 5
6.5 Binding Obligation, etc.............................................. 5
6.6 Brokers.............................................................. 5
6.7 Securities Act and Other Representations and Agreements.............. 6
7. Conditions to Completion................................................. 8
7.1 Representations, Warranties and Covenants............................ 8
7.2 Consents............................................................. 8
7.3 No Order or Injunction............................................... 9
7.4 Instruments of Conveyance............................................ 9
8. The Closing.............................................................. 9
8.1 Contributors' and General Partner's Closing Documents................ 9
8.2 Operating Partnership's Closing Document............................. 9
9. Closing Costs............................................................ 10
10. Operation in the Ordinary Course........................................ 10
11. General Provisions...................................................... 10
11.1 Survival of Representations and Warranties.......................... 10
11.2 Notices............................................................. 11
11.3 Governing Law....................................................... 11
11.4 Headings............................................................ 11
11.5 Benefit and Assignment.............................................. 11
11.6 Severability........................................................ 11
11.7 Entire Agreement; Amendment......................................... 12
11.8 No Waiver........................................................... 12
11.9 Consent and Power of Attorney....................................... 12
11.10 Purchase If No Consolidation...................................... 13
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AGREEMENT FOR CONTRIBUTION OF INTERESTS
[1740 BROADWAY]
THIS AGREEMENT for the Contribution of Interests (this "Agreement") is
made and entered into as of April 15, 1997, by and among The Mendik Company,
L.P. ("Operating Partnership"), a Delaware limited partnership, whose general
partner as of the date hereof is The Mendik Company, Inc., a Maryland
corporation, Vornado Realty Trust, a Maryland real estate investment trust (the
"REIT"), each of the parties listed on Exhibit A annexed hereto who executes a
Partner Consent (hereinafter defined) agreeing to become a party to this
Agreement (collectively referred to herein as "Contributors") and Mendik 1740
Corp., a New York corporation ("Mendik 1740") (in its capacity as a general
partner of the Partnership (hereinafter defined), the "General Partner").
WHEREAS, it is desired to consolidate (the "Consolidation") the assets
of the REIT and interests in seven general or limited partnerships or limited
liability companies of which the General Partner or an affiliate is a general
partner, together with the assets of Mendik Realty Company, Inc and Mendik
Management Company, Inc., each a New York corporation and an affiliate of the
General Partner, with and into Operating Partnership.
WHEREAS, upon completion of and after the Consolidation, the REIT will
become and be the managing general partner of the Operating Partnership;
WHEREAS, Contributors are owners of interests (the "Contributed
Interests") (i) in ▇▇▇▇ ▇▇▇▇▇▇▇▇ Investment Company, a New York general
partnership (the "Partnership"), which is a limited partner in ▇▇▇▇ ▇▇▇▇▇▇▇▇
Associates, L.P., a New York limited partnership ("Associates"), which owns land
and improvements (the "Property") known as ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
and (ii) in the case of Mendik 1740, in Associates;
WHEREAS, in connection with the consummation of the Consolidation, the
parties hereto desire that Operating Partnership and, if designated by Operating
Partnership, one or more special purpose subsidiary partnerships or limited
liability companies of Operating Partnership or one or more other entities
controlled by Operating Partnership (each a "Designated Subsidiary") acquire all
of the interests in the Partnership through the contribution of such interests
to Operating Partnership and/or one or more Designated Subsidiaries upon the
terms and conditions provided herein;
WHEREAS, it is desired to simultaneously acquire all of the interests
in the Partnership owned by a major partner and its affiliates (together, the
"Major Partner") pursuant to an Agreement (the "Major Partner Agreement")
entered into between Major Partner and FW/Mendik REIT L.L.C., which Major
Partner Agreement will be amended and assigned to Operating Partnership and/or a
Designated Subsidiary prior to the Closing (as hereinafter defined);
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All of the foregoing are collectively referred to as the "Transaction".
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises and covenants set forth herein, Operating Partnership, Contributors and
the General Partner hereby agree as follows:
1. Contributions. Upon the Closing (hereinafter defined), and subject
to the satisfaction or waiver by Operating Partnership of the conditions set
forth in Section 7 of this Agreement, Contributors shall contribute, convey and
assign to Operating Partnership (and/or Designated Subsidiary) and Operating
Partnership (and/or Designated Subsidiary) shall acquire from Contributors all
of Contributors' right, title and interest in the Contributed Interests (the
"Contributions"), including, without limitation, all of Contributors' interest
in the profits, losses, property and capital of the Partnership allocable to the
Contributed Interests, upon the terms and conditions set forth in this
Agreement.
2. Consideration; Distributions Prior to Closing.
(a) In full consideration for the contribution of the
Contributed Interests, Operating Partnership shall deliver to Contributors (or
their designees as provided below) at the Closing an aggregate of 63,454 units
of limited partnership interests ("Units") in the Operating Partnership, such
Units being of the classes of Units and allocated among the Contributors as set
forth on Exhibit A.
Prior to the Closing, subject to compliance with all applicable
securities laws, any Contributor that is a partnership may give notice to the
Operating Partnership to allocate all or a portion of the Units otherwise
issuable to it among its partners in a manner set forth in the notice and to
issue the Units directly to those partners, and any Contributor who holds
interests in which another person or entity has a beneficial interest may give
notice to the Operating Partnership to issue all or a portion of the Units
otherwise issuable to that Contributor to the beneficial owner of that interest.
In such event, as a condition to receiving any Units, any such partners of any
Contributor or any such beneficial holder shall execute a Partner Consent (the
"Partner Consent") in the form annexed to and made part of the Confidential
Solicitation of Consents and Private Placement Memorandum (the "Memorandum")
dated March 29, 1997 and shall make to the Operating Partnership the
representations and warranties and agreements in Section 6.7(a), (b), (c) and
(d) pursuant to an instrument reasonably satisfactory to the Operating
Partnership (in addition to the Partner Consent to be executed by the
Contributor).
(b) On the date of the Closing (the "Closing Date"), the
General Partner shall cause the Partnership to satisfy any outstanding
liabilities and to distribute any remaining cash to its partners.
(c) The Operating Partnership shall cause any amounts
collected by Associates after the Closing Date relating to the period through
the Closing Date with respect to refunds of real estate taxes paid by Associates
(less any costs incurred by Associates, the
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Partnership or the Operating Partnership in obtaining such refunds and less any
portion of such refunds required or, in the REIT's reasonable determination,
estimated to be required to be paid to tenants) to be paid to the General
Partner, as agent for the Contributors and certain other parties, not later than
10 days after the end of the month in which such amounts are collected, and the
General Partner shall promptly distribute such amounts to the Contributors.
3. Acceptance of Contributions. Subject to satisfaction of the
conditions listed or referred to in Section 7, Operating Partnership hereby
agrees that at the Closing it shall accept or, at its election, cause a
Designated Subsidiary to accept all or part of, the Contributions and shall
assume any and all rights, obligations and responsibilities of Contributors as
owners of the Contributed Interests that arise subsequent to the Closing Date.
4. Closing Time and Place. Unless another date or place is agreed to by
the parties, the closing of the Contributions (the "Closing") shall take place
contemporaneously with the closing of the Consolidation at the offices of
Proskauer ▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
or such other place and time as Operating Partnership and the General Partner
shall agree upon, upon the satisfaction or waiver of all conditions to the
Closing set forth in Section 7 hereof.
5. Representations and Warranties of Operating Partnership. Operating
Partnership hereby represents and warrants to Contributors as follows, which
representations and warranties shall be true and correct on the Closing Date:
5.1 Organization, Power and Authority, and Qualification. Operating
Partnership is a limited partnership duly organized, validly existing and in
good standing under the laws of the State of Delaware. The REIT is a real estate
investment trust duly organized, validly existing and in good standing under the
laws of the State of Maryland. Each of Operating Partnership and the REIT has
the requisite power and authority to carry on its respective business as it is
now being conducted. Each of Operating Partnership and the REIT is qualified to
do business and is in good standing in each jurisdiction in which the character
of its property owned or leased or the nature of its activities makes such
qualification necessary, except where the failure to be so qualified and in good
standing would not have a material adverse effect on the business or financial
condition of Operating Partnership or the REIT, as the case may be.
5.2 Authority Relative to this Agreement. Operating Partnership has
taken all action necessary to authorize the execution, delivery and performance
of this Agreement by Operating Partnership and no other proceedings on the part
of Operating Partnership are necessary to authorize the execution and delivery
of this Agreement and the consummation of the Contributions.
None of the execution and delivery of this Agreement by Operating
Partnership, the consummation by Operating Partnership of the Contributions or
compliance by Operating Partnership with any of the provisions hereof shall (i)
conflict with or result in any breach of any provisions of the partnership
agreement of Operating Partnership; (ii) result in a violation or breach of, or
constitute (with or without due notice or lapse of time or both) a default (or
give
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rise to any right of termination, cancellation or acceleration) under any of the
terms, conditions or provisions of any note, bond, mortgage, indenture, lease,
license, contract, agreement or other instrument or obligation to which
Operating Partnership is a party or by which it or any of its properties or
assets may be bound; or (iii) violate any order, writ, injunction, decree,
statute, rule or regulation applicable to Operating Partnership; except in the
case of (ii) or (iii) for violations, breaches, or defaults (A) that would not
in the aggregate have a material adverse effect on the business or financial
condition of Operating Partnership or the REIT, and that shall not impair the
effectiveness of the Contributions contemplated hereby, or (B) for which waivers
or consents have been or shall be obtained prior to the Closing Date.
5.3 Binding Obligation. This Agreement has been duly and validly
executed and delivered by Operating Partnership and constitutes a valid and
binding agreement of Operating Partnership, enforceable against Operating
Partnership in accordance with its terms, except that such enforcement may be
subject to bankruptcy, conservatorship, receivership, insolvency, moratorium, or
similar laws affecting creditors' rights generally or the rights of creditors of
limited partnerships and to general principles of equity.
5.4 Insolvency. There are no attachments, executions or assignments for
the benefit of creditors, or voluntary or involuntary proceedings in bankruptcy,
or under any other debtor relief laws, contemplated by or pending or threatened
against Operating Partnership.
5.5 Brokers. Neither Operating Partnership nor the REIT has employed or
dealt with any broker or finder, or incurred any liability therefor, in
connection with the Contributions.
5.6 Valid Consideration. The Units, when issued in accordance with this
Agreement and the Partnership Agreement of Operating Partnership, will be duly
and validly issued, and the issuance thereof will not be subject to preemptive
or other similar rights.
6. Representations, Warranties and Agreements of Contributors. Each
Contributor, in its capacity as a partner of the Partnership (or, in the case of
Mendik 1740, Associates), hereby represents and warrants to and agrees with
Operating Partnership with respect to its Contributed Interests as follows,
which representations and warranties shall also be true and correct on the
Closing Date:
6.1 Title; Authority to Assign. Contributor (i) owns good and
marketable, legal and beneficial (except for holders of beneficial interests in
the amounts payable with respect to such Contributed Interests who have no other
rights with respect to those interests) title in and to its Contributed
Interests which as of the Closing Date will be held free of liens, encumbrances,
judgments, adverse interests, pledges or security interests, other than pledges
of partnership interests to the Partnership or the other partners to secure a
partner's obligations to meet capital calls or other obligations as set forth in
the partnership agreement of the Partnership (or, in the case of Mendik 1740,
Associates) (as to which no amounts are outstanding and no amounts will be
outstanding as of the Closing Date), (ii) holds the entire right, title and
interest in and to its
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Contributed Interests, and (iii) has the full right, power, capacity and
authority to validly contribute and convey its Contributed Interests pursuant to
this Agreement.
6.2 No Breach of Partnership Agreement. None of the execution and
delivery of this Agreement by Contributor, the consummation by Contributor of
the Contribution or compliance by Contributor with any of the provisions hereof
shall as of the Closing Date conflict with or result in any breach of any
provisions of the Partnership Agreement of the Partnership (or, in the case of
Mendik 1740, Associates) or any other agreement to which Contributor is a party.
6.3 Insolvency. There are no attachments, executions or assignments for
the benefit of creditors, or voluntary or involuntary proceedings in bankruptcy,
or under any other debtor relief laws, contemplated by or pending or, to the
knowledge of Contributor, threatened against Contributor.
6.4 Litigation. Contributor has no knowledge of any actual or pending
litigation or proceeding by any organization, person, individual or governmental
agency against Contributor with respect to or against or potentially affecting
its Contributed Interests.
6.5 Binding Obligation, etc. This Agreement has been duly and validly
executed and delivered by Contributor to Operating Partnership and constitutes a
legal, valid and binding agreement of Contributor, enforceable against
Contributor in accordance with its terms, except as such enforcement may be
limited by bankruptcy, conservatorship, receivership, insolvency, moratorium or
similar laws affecting creditors' rights generally and to general principles of
equity. Contributor further represents and warrants that if Contributor is a
corporation, partnership, trust or other entity, it has the power to, and is
duly authorized and otherwise duly qualified to, purchase and hold securities
such as Units and Common Shares (as hereinafter defined) and such entity has its
principal place of business as set forth on Exhibit A.
6.6 Brokers. Contributor has not employed or dealt with any broker or
finder, or incurred any liability therefor, in connection with the Contribution.
6.7 Securities Act and Other Representations and Agreements.
(a) (i) Upon the issuance of Units to Contributor (or a
designee as provided in Section 2), Contributor (or designee) shall become
subject to, and shall be bound by, the terms and provisions of the Partnership
Agreement of Operating Partnership, including the terms of the power of attorney
contained in Section 15.11 thereof, as the Partnership Agreement may be amended
and restated from time to time in accordance with its terms.
(ii) Contributor or its advisor(s) have had a
reasonable opportunity to ask questions of and receive information and answers
from a person or persons acting on behalf of the Partnership and Operating
Partnership concerning the Consolidation, and, as Contributor may deem
necessary, to verify the information contained in the Memorandum,
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receipt of which is acknowledged, and any other information provided to
Contributor by the Partnership or Operating Partnership and all such questions
have been answered and all such information has been provided to the full
satisfaction of Contributor.
(iii) Contributor is acquiring Units for its own
account as principal, for investment and not with a view to resale or
distribution, and the Units may not be transferred or otherwise disposed of by
Contributor otherwise than in transactions pursuant to a registration statement
filed by the Operating Partnership (which it has no obligation to file) or that
are exempt from the registration requirements of the Securities Act of 1933, as
amended (the "Securities Act"), and all applicable state and foreign securities
laws, and the REIT may refuse to transfer any Units as to which evidence of such
registration or exemptions from such registration satisfactory to the REIT is
not provided to it, which evidence may include the requirement of legal opinions
regarding the exemption from such registration. If the REIT elects, in its sole
discretion, to deliver to any Contributor, common shares of beneficial interest
of the REIT ("Common Shares") upon redemption of any Units, the Common Shares
will be acquired for its own account as principal, for investment and not with a
view to resale or distribution, and the Common Shares may not be transferred or
otherwise disposed of by Contributor otherwise than in transactions pursuant to
any registration statement filed by the REIT with respect to such Common Shares
(which it has an obligation to file only pursuant to the Registration Rights
Agreement described in the Memorandum) or that are exempt from the registration
requirements of the Securities Act and all applicable state and foreign
securities laws, and the REIT may refuse to transfer any Common Shares as to
which evidence of such registration or exemptions from such registration
satisfactory to the REIT is not provided to it, which evidence may include the
requirement of legal opinions regarding the exemption from such registration.
(iv) Contributor (either alone or with its advisors)
has sufficient knowledge and experience in financial, tax and business matters
to enable it to evaluate the merits and risks of an investment in Units.
Contributor has the ability to bear the economic risk of acquiring the Units.
Contributor acknowledges that (1) the transactions contemplated by this
Agreement and the Memorandum involve complex tax consequences for each
Contributor and each Contributor is relying solely on the advice of its own tax
advisors in evaluating such consequences, and (2) neither Operating Partnership
nor the General Partner has made (or shall be deemed to have made) any
representations or warranties as to the tax consequences of such transaction to
any Contributor. Each Contributor remains solely responsible for all tax matters
relating to each Contributor.
(v) If needed, Contributor has discussed with its
professional, legal, tax or financial advisors the suitability of an investment
in Units or Common Shares for its particular tax and financial situation.
Nothing contained herein or in the Memorandum shall be deemed to imply any
representation by Operating Partnership or the General Partner as to a
particular tax effect that may be obtained by any Contributor.
(vi) All information that Contributor has provided to
Operating Partnership concerning itself and its financial position is correct
and complete as of the date hereof, and if there should be any material change
in such information prior to issuance of
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Units to the Contributors, it shall immediately provide such changed information
to Operating Partnership.
(vii) Contributor has not disclosed any information
contained in the Memorandum to anyone other than its professional, legal, tax or
financial advisors advising it in connection with this investment and has not
reproduced the Memorandum other than for such use by such advisors.
(b) Status as a United States Person. (i) Unless otherwise
indicated on the Partner Consent, Contributor certifies that Contributor is not
a foreign person within the meaning of Section 1445 of the Internal Revenue Code
("Section 1445"). To the extent that Contributor is not a foreign person within
the meaning of Section 1445, (1) Contributor's U.S. taxpayer identification
number that has previously been provided to the Partnership is accurate, (2)
Contributor's home address (in the case of an individual) or office address (in
the case of an entity) is that address indicated on Exhibit A of this Agreement
and (3) if Contributor subsequently becomes a foreign person within the meaning
of Section 1445, Contributor shall notify Operating Partnership prior to the
Closing Date.
(ii) If Contributor is or prior to the Closing
becomes a foreign person within the meaning of Section 1445, Operating
Partnership shall, and is authorized to, withhold ten percent (10%) of the
amount realized (as such term is defined in Section 1001 of the Internal Revenue
Code) by Contributor in connection with the Contribution, unless Operating
Partnership shall receive from Contributor a notice of nonrecognition transfer
with respect to the Contribution by Contributor (in a form to be provided by
Operating Partnership).
(c) Indemnification. Contributor hereby agrees to indemnify
and hold harmless the Partnership, the REIT, Operating Partnership, The Mendik
Company, Inc. and the General Partner and any of the employees, agents,
officers, directors and affiliated persons of the foregoing from any and all
damages, losses, costs and expenses (including reasonable attorneys' fees) which
they, or any of them, may incur by reason of a failure by Contributor to fulfill
any of its obligations under this Agreement or by reason of the breach by
Contributor of any of the representations and warranties contained herein.
(d) Waiver and Contribution. Contributor understands that (i)
the Units to be issued pursuant to the Consolidation have not been registered
under the Securities Act and (ii) the failure to register such Units could
result in Contributor being granted certain rights under the Federal securities
laws, including a right to rescind Contributor's consent to the Consolidation.
For the benefit of Operating Partnership, and in consideration of Operating
Partnership's consummating the Consolidation, Contributor (x) hereby waives any
and all rights it now has or may hereafter be granted to rescind its consent to
the Consolidation on the basis that the Units issued in connection with the
Consolidation were not registered (the "Waiver") and (y) agrees that if the
Waiver is deemed void or unenforceable for any reason, including, without
limitation, under Section 14 of the Securities Act, the entire beneficial
interest in all property and amounts received by Contributor in any action to
rescind the Consolidation (regardless of whether such action was initiated by
Contributor) or otherwise received by Contributor as damages for
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failure to register the Units under the Securities Act, shall be promptly paid
over and contributed by Contributor to Operating Partnership, for no additional
consideration from Operating Partnership, other than the Units originally issued
pursuant to the Consolidation.
Whenever the context shall require, all words in the male, female or
neuter gender shall be deemed to include the other genders, all singular words
shall include the plural, and all plural words shall include the singular. All
representations, covenants and agreements of Contributor set forth in this
Agreement shall survive the consummation of the Consolidation contemplated by
the Memorandum.
7. Conditions to Completion. In addition to the conditions to
completion of the Consolidation set forth in the Memorandum, the obligations of
Operating Partnership to consummate the transactions contemplated by this
Agreement shall be subject to fulfillment (or waiver by Operating Partnership)
at or prior to the Closing of the following conditions:
7.1 Representations, Warranties and Covenants. The representations,
warranties and covenants made by Contributors in this Agreement or in any
document delivered by any of them pursuant to this Agreement shall be true and
correct in all material respects when made and on and as of the Closing as
though such representations, warranties and covenants were made on and as of
such date.
7.2 Consents. Any and all consents required by the Partnership
Agreement of the Partnership (or, in the case of Mendik 1740, Associates), and
any certificates, agreements, contribution and assumption instruments and other
documents necessary or advisable to evidence the conveyance of the Contributed
Interests and the admission of Operating Partnership (or Designated Subsidiary)
into the Partnership or Associates, by virtue of the contribution of the
Contributed Interests, shall have been obtained.
7.3 No Order or Injunction. The consummation of the Contributions shall
not have been restrained, enjoined or prohibited by any order or injunction of
any court or governmental authority of competent jurisdiction.
7.4 Instruments of Conveyance. The Contributors shall have delivered
the instruments evidencing conveyance of their interests referred to in Section
8.1.
8. The Closing.
8.1 Contributors' and General Partner's Closing Documents. At Closing,
each Contributor shall deliver (or cause to be delivered pursuant to the Power
of Attorney referred to in Section 11.9) or the General Partner shall deliver
the following (all of which shall be duly executed and acknowledged where
required):
(a) A written document of conveyance contributing to Operating
Partnership (and/or any Designated Subsidiary) title to Contributor's
Contributed Interests, free and clear of any adverse claim or interest;
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(b) Such documents and certificates as Operating Partnership
reasonably may require to establish the authority of the parties executing any
documents in connection with the Contributions including, in the case of any
Contributor that is a corporation, partnership, limited liability company or
other similar entity (other than a trust or estate), an opinion of counsel,
reasonably satisfactory to the Operating Partnership, as to the due execution
and delivery of such documents;
(c) Such consents and instruments of admission as are
contemplated by Section 7.2 hereof; and
(d) Such other documents, instruments and certificates as
Operating Partnership and the General Partner, as agent for the Contributors,
reasonably agree are necessary or appropriate, including without limitation
recording and transfer forms and affidavits.
8.2 Operating Partnership's Closing Documents. At Closing, Operating
Partnership shall deliver or cause to be delivered to the General Partner, as
agent for the Contributors, the following:
(a) The Units to be issued for the Contributed Interests;
(b) Copies of the Executed Partnership Agreement of the
Operating Partnership and the Registration Rights Agreement and Unit Redemption
Agreement referred to in Section 11.09; and
(c) Such other documents and instruments as the General
Partner, as agent for the Contributors, and Operating Partnership agree are
necessary or appropriate, including without limitation recording and transfer
forms and affidavits.
9. Closing Costs.
(a) The General Partner and the Operating Partnership shall
join on the Closing Date in completing, executing, delivering and verifying the
returns, affidavits and other documents required in connection with the
documentary stamps in accordance with Article 31 of the Tax Law, the New York
City Real Property Transfer Tax imposed by Title Chapter 46 of Title II of the
Administrative Code of the City of New York and any other tax payable by reason
of the contribution of the Contributed Interests (collectively, the "Conveyance
Taxes").
(b) The Contributors shall be solely responsible to pay the
Conveyance Taxes due on the conveyance of the Contributed Interests including,
but not limited to, any Conveyance Taxes imposed due to the Contributor's
failure to satisfy any holding period or continuity requirements for qualifying
for a reduced rate of Conveyance Taxes, including the holding period
requirements with respect to certain transfers to a REIT imposed in connection
with the New York Real Estate Transfer Tax imposed by Article 31 of the Tax Law
and the New York City Real Property Transfer Tax imposed by Chapter 46 of Title
11 of the Administrative
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Code of the City of New York. The Contributors shall pay to the General Partner
at the Closing, and the General Partner, as agent for the Contributors, shall
pay at the Closing to the appropriate tax collecting agency or official the
amount of all Conveyance Taxes payable by reason of the Contributors' agreement
to pay the Conveyance Taxes (assuming satisfaction of the requirements set forth
in the preceding sentence). The Contributors shall indemnify, defend and hold
harmless the Operating Partnership, the Partnership and Associates from and
against all claims, liabilities, costs and expenses (including reasonable
attorney's fees), incurred by the Operating Partnership or the Partnership by
reason of the failure of the Contributors to pay any Conveyance Taxes assessed
or alleged to be due at any time with respect to the transfer of the Interests
to Operating Partnership, including, without limitation, all interest and
penalties thereon.
(c) Operating Partnership shall also pay or provide for the
payment of all other costs associated with the closing of the contributions of
the Contributed Interests pursuant to this Agreement, as described in and
subject to the terms of the Memorandum.
10. Operation in the Ordinary Course. The General Partner shall use
reasonable efforts to operate the Partnership, Associates and the Property in
the ordinary course of business between the date hereof and the closing of the
Consolidation, including making any necessary capital expenditures and leasing
expenditures consistent with past practices to maintain the quality and value of
the Property.
11. General Provisions.
11.1 Survival of Representations and Warranties. It is the express
intention and agreement of the parties hereto that the representations and
warranties of the parties set forth in this Agreement shall survive the
consummation of the Contributions and the Closing.
11.2 Notices. All notices, demands, requests or other communications
that may be or are required to be given or made by any party to the other
parties pursuant to this Agreement shall be in writing and shall be hand
delivered or transmitted by certified mail, express overnight mail or delivery
service, telegram, telex or facsimile transmission to the parties at the
addresses specified in Exhibit A or such other address as the addressee may
indicate by written notice to the other party.
Each notice, demand, request or communication that is given or made in
the manner described above shall be deemed sufficiently given or made for all
purposes at such time as it is delivered to the addressee (with the delivery
receipt, the affidavit of messenger or (with respect to a telex) the answer back
being deemed conclusive but not exclusive evidence of such delivery) or at such
time as delivery is refused by the addressee upon presentation.
11.3 Governing Law. This Agreement, the rights and obligations of the
parties hereto and any claims or disputes relating to such rights and
obligations shall be governed by and construed under the laws of the State of
New York.
- 10 -
13
11.4 Headings. Section and subsection headings contained in this
Agreement are inserted for convenience of reference only, shall not be deemed to
be a part of this Agreement for any purpose, and shall not in any way define or
affect the meaning, construction or scope of any of the provisions hereof.
11.5 Benefit and Assignment. No Contributor shall assign this
Agreement, in whole or in part, whether by operation of law or otherwise,
without the prior written consent of Operating Partnership. Any purported
assignment contrary to the terms hereof shall be null, void and of no force and
effect.
This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and assigns as permitted
hereunder. No person or entity other than the parties hereto is or shall be
entitled to bring any action to enforce any provision of this Agreement against
any of the parties hereto, and the covenants and agreements set forth in this
Agreement shall be solely for the benefit of, and shall be enforceable only by,
the parties hereto or their respective successors and assigns as permitted
hereunder. The Operating Partnership may designate one or more Designated
Subsidiaries to acquire all or any part of the Contributed Interests (in which
case the Designated Subsidiary shall execute a certificate at closing making the
same representations and warranties as are made by Operating Partnership and
references to Operating Partnership shall include the Designated Subsidiaries
except where the context clearly indicates otherwise).
11.6 Severability. If any part of any provision of this Agreement or
any other agreement, document or writing given pursuant to or in connection with
this Agreement shall be invalid or unenforceable under applicable law, such part
shall be ineffective to the extent of such invalidity or unenforceability only,
without in any way affecting the remaining parts of such provisions or the
remaining provisions of said agreement so long as the economic and legal
substance of the Contributions is not affected in any manner materially adverse
to either party.
11.7 Entire Agreement; Amendment. The Schedules and the Exhibits
attached hereto are hereby incorporated into the Agreement as if fully set forth
herein. This Agreement, and the Schedules and Exhibits attached hereto, together
with the Memorandum, contain the final and entire agreement between the parties
hereto with respect to the Contributions, supersede all prior oral and written
memoranda and agreements with respect to the matters contemplated herein, and
are intended to be an integration of all prior negotiations and understandings.
Contributors and Operating Partnership shall not be bound by any terms,
conditions, statements, warranties or representations, oral or written, not
contained or referred to herein or therein. No change or modification of this
Agreement shall be valid unless the same is in writing and signed by the parties
hereto.
11.8 No Waiver. No delay or failure on the part of any party hereto in
exercising any right, power or privilege under this Agreement or under any other
instrument or document given in connection with or pursuant to this Agreement
shall impair any such right, power or privilege or be construed as a waiver of
any default or any acquiescence therein. No single or partial exercise of any
such right, power or privilege shall preclude the further exercise
- 11 -
14
of such right, power or privilege. No waiver shall be valid against any party
hereto unless made in writing and signed by the party against whom enforcement
of such waiver is sought and then only to the extent expressly specified
therein.
11.9 Consent and Power of Attorney. The General Partner hereby consents
to the contribution of the Contributed Interests pursuant hereto by each of the
Contributors. Each Contributor is executing a Partner Consent pursuant to which
such Contributor (a) is executing this Agreement, and (b) is consenting to each
matter set forth therein. In addition, by executing this Agreement pursuant to
the Consent, each Contributor is constituting and appointing each of ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, individually, with full
power of substitution, the true and lawful attorney-in-fact (the "Attorney") of
such Contributor, with full power and authority in the name of and for and on
behalf of such Contributor, to execute an instrument of conveyance contributing
its Contributed Interests to Operating Partnership pursuant to the Consolidation
on the terms set forth in the Memorandum (or to the REIT pursuant to Section
11.10), to execute the Partnership Agreement of Operating Partnership and the
Registration Rights Agreement and a Unit Redemption Agreement (if the
Contributor elects to redeem its Units for cash immediately after the Closing),
to execute any instruments required to be filed in connection with the
Conveyance Taxes and to execute any other instruments that the General Partner
reasonably determines necessary or appropriate in connection with the
contribution of the Contributed Interests pursuant to this Agreement and the
consummation of the Consolidation (or the REIT determines necessary or
appropriate in connection with its purchase), including, without limitation, to
consummate the transactions which are the subject matter of the Major Partner
Agreement.
Each Contributor shall promptly notify the General Partner if any of
the representations and warranties by that partner were not true and correct
when made or become untrue at any time prior to the Closing.
11.10 Purchase If No Consolidation. Notwithstanding anything to the
contrary in this Agreement, if the Consolidation does not occur and the Master
Consolidation Agreement dated as of March 12, 1997 among the REIT, the Operating
Partnership and certain other parties terminates in accordance with its terms,
then, subject to satisfaction of the conditions in Section 7.1, 7.2, 7.3 and
7.4, (i) the closing shall occur on the third business day after the termination
of the Master Consolidation Agreement; and (ii) at the closing, (a) the REIT
shall purchase the Contributed Interests from the Contributors for an aggregate
cash purchase price of $3,299,442, allocated among the Contributors in the same
proportion as the Units are allocated as set forth on Exhibit A, (b) the
Contributors shall deliver the documents and instruments referred to in Section
8.1(a), (b), (c) and (d), and (c) the REIT shall deliver the purchase price for
the Contributed Interests and such other documents and instruments as the
General Partner, as agent for the Contributors, and the REIT agree are necessary
or appropriate, including, without limitation, recording and transfer forms and
affidavits. In such event, references in this Agreement to the Operating
Partnership shall be deemed references to the REIT, to the extent consistent
with the foregoing.
- 12 -
15
IN WITNESS WHEREOF, each of the Contributors has executed a separate
Partner Consent agreeing to be bound by the terms of this Agreement and each of
Operating Partnership and the General Partner has caused this Agreement to be
duly executed and delivered on its behalf as of the date first above written.
THE MENDIK COMPANY, L.P.
By: The Mendik Company, Inc., general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
MENDIK 1740 CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
VORNADO REALTY TRUST
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
[ADDITIONAL SIGNATURES OMITTED]
- 13 -
16
▇▇▇▇ ▇▇▇▇▇▇▇▇ ASSOCIATES, L.P.
▇▇▇▇ ▇▇▇▇▇▇▇▇ INVESTMENT COMPANY
EXHIBIT A
LIST OF PARTNERS
Name Units
---- -----
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 11,058
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Nendik 1740 Corp. 951
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Mil Equities 4,327
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ 1,923
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇
Ambassador Construction Company, Inc. 9,615
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 962
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Revocable Trust 4,808
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, UGMA for ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 1,731
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 962
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
17
Name Units
---- -----
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 2,885
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇-▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, UGMA for ▇. ▇▇▇▇▇▇▇ 1,058
▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, UGMA for ▇. ▇▇▇▇▇▇▇ 1,058
▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Maayan Partners 4,808
c/o ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Plum Partners 4,808
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
H. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 9,615
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇▇▇▇, Trustees 2,885
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
TOTAL 63,454.00
=========
