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Exhibit 2.3
AGREEMENT FOR CONTRIBUTION OF INTERESTS
IN
866 UN PLAZA ASSOCIATES LLC
BY AND AMONG
THE MENDIK COMPANY, L.P.,
THE MEMBERS OF 866 UN PLAZA ASSOCIATES LLC
AND
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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
1. Contributions........................................................... 1
2. Consideration; Distributions Prior to Closing........................... 2
3. Acceptance of Contributions............................................. 5
4. Closing Time and Place.................................................. 5
5. Representations and Warranties of Operating Partnership................. 5
5.1 Power and Authority, and Qualification......................... 5
5.2 Authority Relative to this Agreement........................... 5
5.3 Binding Obligation............................................. 6
5.4 Insolvency..................................................... 6
5.5 Brokers........................................................ 6
5.6 Valid Consideration............................................ 6
6. Representations, Warranties and Agreements of Contributors.............. 6
6.1 Title; Authority to Assign..................................... 7
6.3 Insolvency..................................................... 7
6.4 Litigation..................................................... 7
6.5 Binding Obligation, etc........................................ 7
6.6 Brokers........................................................ 8
6.7 Securities Act and Other Representations and Agreements........ 8
7. Conditions to Completion................................................ 11
7.1 Representations, Warranties and Covenants...................... 11
7.2 Consents....................................................... 11
7.3 No Order or Injunction......................................... 11
8. The Closing............................................................. 11
8.1 Contributors' and General Partner's Closing Documents.......... 11
8.2 Operating Partnership's Closing Documents...................... 12
9. Transfer Taxes and Closing Costs........................................ 12
10. Operation in the Ordinary Course........................................ 13
11. General Provisions...................................................... 13
11.1 Survival of Representations and Warranties.................... 13
11.2 Notices....................................................... 13
11.3 Governing Law................................................. 14
11.4 Headings...................................................... 14
11.5 Benefit and Assignment........................................ 14
11.7 Entire Agreement; Amendment................................... 14
11.8 No Waiver..................................................... 15
11.9 Consent and Power of Attorney................................. 15
Exhibit A List of Partners
Exhibit B Committed Capital Expenditures
Exhibit C Contingent Leasing Expenditures
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AGREEMENT FOR CONTRIBUTION OF INTERESTS
[866 UN PLAZA]
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, 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 ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇ (in his capacity as a managing member of the Company (hereinafter
defined), the "Managing Member").
WHEREAS, it is desired to consolidate (the "Consolidation")
the assets of Vornado Realty Trust, a Maryland real estate investment trust (the
"REIT"), and interests in seven general or limited partnerships or limited
liability companies of which the Managing Member or an affiliate is a general
partner or managing member, together with the assets of Mendik Realty Company,
Inc. and Mendik Management Company, Inc., each a New York corporation and an
affiliate of the Managing Member, 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") in 866 UN Plaza Associates LLC, a New York limited
liability company (the "Company"), which Company owns land and improvements (the
"Property") known as ▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇; and
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 Company through the
contribution of such interests to Operating Partnership and/or one or more
Designated Subsidiaries upon the terms and conditions provided herein.
NOW, THEREFORE, in consideration of the foregoing and the
mutual promises and covenants set forth herein, Operating Partnership,
Contributors and the Managing Member 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
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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
Company 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, with respect to the Exchange
Value (as such term is defined in the Confidential Solicitation of Consents and
Private Placement Memorandum (the "Memorandum") dated March 29, 1997), an
aggregate of 192,305 units of limited partnership interests ("Units") in the
Operating Partnership, such Units being allocated among the Contributors as set
forth on Exhibit A, subject to adjustment as provided in Section 2(b) hereof.
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 Memorandum 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) If the aggregate amount of the Net Other Assets
(hereinafter defined) of the Company as of the close of business on the day
preceding the date of the Closing (the "Closing Date") exceeds $9,250,000,
Operating Partnership shall issue additional Units (valued at the average of the
closing prices on the New York Stock Exchange of shares of the REIT for the last
ten trading days ending on the third trading day prior to the Closing Date) with
a value equal to the amount of the excess Net Other Assets, and such additional
Units shall be issued to each Contributor in the same proportion as the Units
will be issued in accordance with Exhibit A.
As used in this Agreement, the following terms have the
following meanings:
(i) "Net Other Assets" means the excess of Certain Other
Assets over Certain Other Liabilities (as such terms are hereinafter defined).
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(ii) "Certain Other Assets" means, subject to Section 2(e),
cash and cash equivalents (other than any condemnation or casualty proceeds held
by the Company), marketable securities, accounts receivable (including an
estimate of any rent escalations payable by tenants with respect to the period
through the Closing Date, but excluding any amounts payable by tenants with
respect to any period after the Closing Date, as well as any amount payable by
tenants after the Closing Date to the extent such amount has been recognized as
income prior to the Closing), prepaid expenses (excluding any prepaid leasing
costs relating to leases entered into prior to October 1, 1996), escrow deposits
made by the Company, capital expenditures (other than tenant improvements or
building improvements required by the terms of any lease and other than those
committed capital expenditures listed on Exhibit B annexed hereto) made on or
after October 1, 1996, amounts paid for leasing costs, tenant and building
improvements or tenant acquisition costs relating to (1) leases entered into on
or after October 1, 1996 and (2) leases entered into prior to October 1, 1996,
but only to the extent of any leasing expenditures with respect to such leases
entered into prior to October 1, 1996 which are set forth on Exhibit C annexed
hereto. For the purpose of calculating Certain Other Assets, the accounts
receivable of the Company shall be valued at the face amount of the accounts
receivable, net of a reserve for doubtful accounts determined in accordance with
generally accepted accounting principles consistently applied, and without
giving effect to the straight-line requirement of FASB 13.
(iii) "Certain Other Liabilities" means accounts payable,
accrued interest payable and other accrued liabilities (including any liability
or obligation for leasing costs, tenant or building improvements or tenant
acquisition costs payable relating to leases entered into prior to October 1,
1996 but excluding any liability or obligation for leasing costs, tenant or
building improvements or tenant acquisition costs payable relating to (1) leases
entered into on or after October 1, 1996 and (2) leases entered into prior to
October 1, 1996, but only to the extent of any leasing expenditures with respect
to such leases entered into prior to October 1, 1996 which are set forth on
Exhibit C annexed hereto), the unpaid remaining cost of any committed capital
expenditures listed on Exhibit B annexed hereto and prepaid rent received from
tenants.
For purposes of this Section 2, the exercise of an option to
renew a lease or to rent additional space pursuant to a lease shall be deemed a
new lease entered into on the effective date of the renewal option.
(c) The Managing Member shall prepare and submit to the REIT,
not later than five days prior to the Closing Date, its best, good faith
estimate of the Net Other Assets as of the close of business on the day
preceding the Closing Date; such estimate shall be determined based upon the
books and records of the Company. The estimate submitted to the REIT shall be
accompanied by (i) a statement setting forth in reasonable detail the
calculation of the estimated Net Other Assets as of the close of business on the
day preceding the Closing Date, and (ii) a certificate signed by the Managing
Member confirming that the estimate was calculated
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in accordance with the terms of this Section 2. The estimate shall be final and
binding on the parties unless, at least two days prior to the Closing, the REIT
gives written notice to the Managing Member that it objects to any item. The
REIT and the Managing Member shall immediately consult with respect to any item
objected to and their joint determination with respect to any items in dispute
shall be final and binding on the parties. The number of additional Units to be
delivered at Closing shall be based on the statement of Net Other Assets
delivered by the Managing Member if there is no objection thereto by the REIT
(or the undisputed amount of Net Other Assets if there is such an objection) and
additional Units, if any, shall be delivered to the General Partner, as agent
for the Contributors, promptly after the accountants' determination referred to
in the next sentence, it being understood that the Contributors shall be deemed
to own such additional Units, if any, as of the Closing Date. If the REIT and
the Managing Member are unable to reach agreement on the amount of Net Other
Assets prior to Closing, within ten days after the Closing, the dispute shall be
referred to and resolved by a "Big 6" firm of independent certified public
accountants proposed by the REIT and reasonably acceptable to the Managing
Member, and the determination by that accounting firm shall be final and binding
on the parties. The fees and expenses of the accounting firm shall be borne by
Operating Partnership.
(d) The Operating Partnership shall cause the Company to pay
any amounts collected by the Company after the Closing Date relating to the
period through the Closing Date with respect to refunds of real estate taxes
paid by the Company (less any costs incurred by the Company 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 the Managing Member, as agent for the Contributors, 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.
(e) An amount equal to $750,000 (plus any additional
Conveyance Taxes (hereinafter defined) payable as a result of the value of the
Units (based on the value of the shares of the REIT) exceeding $52 per Unit)
shall be deducted from the Partnership's cash on hand prior to the calculation
of Net Other Assets, regardless of the actual amount of the Conveyance Taxes. On
the Closing Date, the Managing Member shall cause the Company to distribute to
the Managing Member, as agent for the members, an amount (estimated at $750,000
based on a value of $52 per Unit) sufficient to pay the Conveyance Taxes payable
by them pursuant to Section 9(b) hereof, assuming that the Contributions
hereunder are treated as "qualifying REIT transfers" under the laws referred to
in Section 9(a) hereof, it being understood that the funds referred to in the
first sentence of this clause (e) shall be applied toward satisfaction of this
distribution requirement.
(f) Notwithstanding the foregoing, each Contributor may elect,
by notice to the Operating Partnership given at least five days prior to the
Closing Date, not to receive up to 80% of the Units issuable to him or it prior
to any adjustment pursuant to Section 2(b), but instead to receive cash in an
amount equal to $48.36 per Unit in lieu of those Units. In
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that event, at the Closing, the Company shall distribute to each such
Contributor the amount of cash to which he or it is entitled pursuant to the
preceding sentence. Notwithstanding the foregoing, each Contributor that is a
partnership may make the foregoing election separately with respect to up to 80%
of the Units distributable to each partner in the Partnership.
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 Managing Member
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 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
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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 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 his, her or its capacity as a partner of the Company,
hereby represents and warrants to and agrees with Operating Partnership with
respect to his, her or 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 his, her or its
Contributed Interests which as of the Closing Date will be held free of any
liens, encumbrances, judgments, adverse interests, pledges or security
interests,
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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 (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 his,
her or its Contributed Interests, and (iii) has the full right, power, capacity
and authority to validly contribute and convey his, her or its Contributed
Interests pursuant to this Agreement.
6.2 NO BREACH OF OPERATING 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 Operating Agreement of the Company 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 his, her or 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.
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(ii) Contributor or his, her 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 Company and Operating
Partnership concerning the Consolidation, and, as Contributor may deem
necessary, to verify the information contained in the Memorandum, receipt of
which is acknowledged, and any other information provided to Contributor by the
Company 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 his, her or 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 his, her or 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 his, her or its
advisors) has sufficient knowledge and experience in financial, tax and business
matters to enable him, her or it to evaluate the merits and risks of an
investment in the 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 his, her or its own tax advisors in evaluating such consequences, and
(2) neither Operating Partnership nor the Managing Member 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.
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(v) If needed, Contributor has discussed with his, her or
its professional, legal, tax or financial advisors the suitability of an
investment in Units or Common Shares for his, her or 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 Managing
Member as to a particular tax effect that may be obtained by any Contributor.
(vi) All information that Contributor has provided to
Operating Partnership concerning himself or herself or itself and his, her or
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
Units to the Contributors, he, she or 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 his or her spouse or his, her or its
professional, legal, tax or financial advisors advising him, her or 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 Date 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 Company, the REIT, Operating Partnership, The Mendik Company,
Inc. and the Managing Member 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
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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 he or she now has or may hereafter be granted to rescind his or
her 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 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 Operating
Agreement of the Company, 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 Company by virtue of the
contribution of the Contributed Interests, shall have been obtained.
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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 Managing Member 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;
(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 Managing Member, 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 Managing
Member, as agent for the Contributors, the following:
(a) The Units referred to in Section 2(a); and
(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
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(c) Such other documents and instruments as the Managing
Member, as agent for the Contributors, and Operating Partnership agree are
necessary or appropriate, including without limitation recording and transfer
forms and affidavits.
9. TRANSFER TAXES AND CLOSING COSTS.
(a) The Managing Member and 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 the New York State Real Estate Transfer
Tax imposed by Article 31 of the Tax Law, the New York City Real Property
Transfer Tax imposed by Chapter 46 of Title 11 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 hereby agree to pay and shall be solely
responsible for 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 Code of the City of New York. Using the
amount distributed to the Managing Member pursuant to Section 2(e) hereof, the
Managing Member, as agent for the Contributors, shall timely pay 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 Operating Partnership
and the Company from and against all claims, liabilities, costs and expenses
(including reasonable attorney's fees), incurred by Operating Partnership or the
Company 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 Managing Member shall
use reasonable efforts to operate the Company and the Property in the ordinary
course of business between the date hereof and the closing of the Consolidation,
including making any necessary
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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.
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.
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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 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 Managing Member 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
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behalf of such Contributor, to execute an instrument of conveyance contributing
his, her or its Contributed Interests to Operating Partnership pursuant to the
Consolidation on the terms set forth in the Memorandum, 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) and to execute any instruments
required to be filed in connection with the Conveyance Taxes, and to execute any
other instruments that the Managing Member reasonably determines necessary or
appropriate in connection with the contribution of the Contributed Interests
pursuant to this Agreement and the consummation of the Consolidation.
Each Contributor shall promptly notify the Managing Member 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.
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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 Managing Member has caused this Agreement
to be duly executed and delivered on its or his 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
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
[ADDITIONAL SIGNATURES OMITTED]
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866 U.N. Plaza Associates LLC
Exhibit A
List of Partners
Number
of Units
--------
Ambassador Construction
c/o ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ 6,977
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇-▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ 6,286
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
c/o ▇▇▇▇▇▇▇ Vespa
▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ 19,205
Menby Associates
c/o ▇▇▇▇▇▇▇ Vespa
▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ 93,123
▇▇▇▇▇▇▇▇▇ Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 6,286
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ 2,330
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ 2,330
20
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ 9,782
Mendik Realty Company, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ 109,063
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 691
-------
256,073
21
Exhibit B
Committed Capital Expenditures
NONE
22
Exhibit C
Contingent Leasing Expenditures
Assembly of Bahai's $ 16,000
Mission of Kazakstan 85,000
Coach Management 41,500
TOTAL $142,500