EXHIBIT 10.2
CONTRIBUTION AGREEMENT
BY AND BETWEEN
▇▇▇▇ CAPITAL REAL ESTATE INVESTMENTS, LLC
A VIRGINIA LIMITED LIABILITY COMPANY,
AS CONTRIBUTOR
AND
COLUMBIA EQUITY, LP,
A VIRGINIA LIMITED PARTNERSHIP,
AS ACQUIRER
TABLE OF CONTENTS
ARTICLE I THE CONTRIBUTION.............................................................................. 1
1.1 Contribution of Membership Interest.......................................................... 1
1.2 Consideration................................................................................ 2
1.3 Redemption Rights for Units.................................................................. 2
1.4 Tax Consequences to Contributor.............................................................. 2
ARTICLE II REPRESENTATIONS AND COVENANTS................................................................ 2
2.1 Representations by Acquirer................................................................. 2
2.2 Representations by Contributor.............................................................. 4
2.3 Covenants of Acquirer....................................................................... 6
2.4 Covenants of Contributor.................................................................... 6
ARTICLE III Conditions Precedent to the Closing......................................................... 8
3.1 Conditions to Acquirer's Obligations....................................................... 8
3.2 Conditions to Contributor's Obligations.................................................... 8
ARTICLE IV Closing and Closing Documents................................................................ 9
4.1 Closing..................................................................................... 9
4.2 Contributor's Deliveries.................................................................... 9
4.3 Acquirer's Deliveries....................................................................... 10
4.4 Fees and Expenses; Closing Costs............................................................ 10
4.5 Adjustments................................................................................. 10
ARTICLE V Miscellaneous................................................................................. 12
5.1 Notices...................................................................................... 12
5.2 Entire Agreement; Modifications and Waivers; Cumulative Remedies............................. 12
5.3 Exhibits..................................................................................... 13
5.4 Successors and Assigns....................................................................... 13
5.5 Article Headings............................................................................. 13
5.6 Governing Law................................................................................ 13
5.7 Counterparts................................................................................. 13
5.8 Survival..................................................................................... 13
5.9 Severability................................................................................. 13
5.10 Attorneys' Fees.............................................................................. 13
EXHIBITS
A Assignment and Assumption Agreement
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT (this "Agreement") is made as of this 12th day
of October, 2004 by and between ▇▇▇▇ Capital Real Estate Investments, LLC, a
Maryland limited liability company ("Contributor"); and Columbia Equity, LP, a
Virginia limited partnership ("Acquirer").
RECITALS
▇. ▇▇▇▇ Capital Greenbriar, LLC, a Virginia limited liability company (the
"LLC") is the owner of certain land located in Fairfax County, Virginia (the
"Land") and the office building and related improvements located thereon (the
"Improvements"), which Land and Improvements (collectively, the "Property"), are
more commonly known as the Greenbriar office building.
▇. ▇▇▇▇ Capital/Holualoa Greenbriar, LLC, a Virginia limited liability
company (the "Liquidating LLC") is the record and beneficial owner of Sixteen
and 32/100 percent (16.32%) of the membership interest in the LLC.
C. Contributor is the record and beneficial owner of Three and 23/100
percent (3.23%) of the membership interests in the Liquidating LLC.
D. The members of the Liquidating LLC, Holualoa Greenbriar, LLC, an
Arizona limited liability company ("Holualoa") and Contributor (collectively,
the "Liquidating LLC Members") intend to liquidate the Liquidating LLC and that
each of the Liquidating LLC Members shall be admitted as members of the LLC,
with Contributor receiving a 53/100 percent (.53%) ("Contributor's Share")
membership interest in the LLC (the "Membership Interest") and Holualoa
receiving a Fifteen and 79/100 percent (15.79%) membership interest in the LLC
(the "Liquidation Transaction"). Contributor desires to contribute the
Membership Interest to Acquiror, on the terms and conditions hereinafter set
forth.
E. Acquiror desires to waive the Membership Interest from Contributor, on
the terms and conditions hereinafter set forth.
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
ARTICLE I
THE CONTRIBUTION
1.1 Contribution of Membership Interest. Contributor agrees to contribute,
transfer, assign and convey the Membership Interest to Acquirer, and Acquirer
agrees to acquire and accept transfer of the Membership Interest pursuant to the
terms and conditions set forth in this Agreement. The Membership Interest shall
be transferred to Acquirer free and clear of all liens,
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encumbrances, security interests, prior assignments or conveyances, conditions,
restrictions, voting agreements, claims, and any other matters affecting title
thereto (other than the LLC's operating agreement (the "LLC Operating
Agreement").
1.2 Consideration. The total consideration (the "Consideration") for which
Contributor agrees to contribute and assign the Membership Interest to Acquirer,
and which Acquirer agrees to pay or deliver to Contributor, subject to the terms
of this Agreement, shall be the issuance to Contributor of a number of units of
limited partnership interests in Acquirer ("Units") equal to (a) the amount of
Net Cash Flow (as defined in the LLC Operating Agreement) that Contributor would
be entitled to receive pursuant to Section 3.1 of the LLC Operating Agreement
upon a hypothetical sale of the Property for a sale price of Fifteen Million
Three Hundred Thousand Dollars ($15,300,000) less the principal of and accrued
interest on the mortgage loan secured by the Property (the "Mortgage Loan"), (b)
divided by the price per share at which the common stock, $.01 par value per
share, (the "Common Stock") of Columbia Equity Trust, Inc., a Maryland
corporation and the general partner of Acquirer (the "REIT"), is offered to the
public in the underwritten initial public offering of the Common Stock (the
"IPO"). On the Closing Date (as defined below), the Units shall be issued to
Contributor. Upon the request of Contributor, Acquirer shall issue certificates
reflecting Contributor's ownership of Units. The certificates evidencing the
Units will bear appropriate legends indicating (i) that the Units have not been
registered under the Securities Act of 1933, as amended ("Securities Act"), and
(ii) that Acquirer's Amended and Restated Agreement of Limited Partnership (the
"Partnership Agreement") restricts the transfer of the Units. Upon receipt of
the Units and execution and delivery of the Partnership Agreement, Contributor
shall become a limited partner of Acquirer.
1.3 Redemption Rights for Units. Each Unit shall be redeemable, at the
option of the holder, in accordance with, but subject to the restrictions
contained in, the Partnership Agreement; provided, however, that such redemption
option may not be exercised prior to the first anniversary of the Closing Date.
1.4 Tax Consequences to Contributor. Notwithstanding anything to the
contrary contained in this Agreement, including without limitation the use of
words and phrases such as "sell," "sale," purchase," and "pay," the parties
hereto acknowledge and agree that it is their intent that the transaction
contemplated hereby be treated for federal income tax purposes as the
contribution of the Membership Interest by Contributor to Acquirer in exchange
for Units pursuant to Section 721 of the Internal Revenue Code of 1986, as
amended (the "Code"), and not as a transaction in which Contributor is acting
other than in its capacity as a prospective partner of Acquirer.
ARTICLE II
REPRESENTATIONS AND COVENANTS
2.1 Representations by Acquirer. Acquirer hereby represents and warrants
unto Contributor that the following statements are true, correct, and complete
in every material
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respect as of the date of this Agreement and will be true, correct, and complete
as of the Closing Date:
(a) Organization and Power. Acquirer is duly organized and validly
existing, under the laws of the Commonwealth of Virginia, and has full right,
power, and authority to enter into this Agreement and to assume and perform all
of its obligations under this Agreement; and, the execution and delivery of this
Agreement and the performance by Acquirer of its obligations under this
Agreement have been duly authorized by all requisite action of Acquirer and
require no further action or approval of Acquirer's partners or of any other
individuals or entities in order to constitute this Agreement as a binding and
enforceable obligation of Acquirer.
(b) Noncontravention. Neither the entry into nor the performance of,
or compliance with, this Agreement by Acquirer has resulted, or will result, in
any violation of, or default under, or result in the acceleration of, any
obligation under the Partnership Agreement, or any mortgage, indenture, lien
agreement, note, contract, permit, judgment, decree, order, restrictive
covenant, statute, rule, or regulation applicable to Acquirer.
(c) Litigation. There is no action, suit, or proceeding, pending or
known to be threatened, against or affecting Acquirer in any court or before any
arbitrator or before any federal, state, municipal, or other governmental
department, commission, board, bureau, agency or instrumentality which (i) in
any manner raises any question affecting the validity or enforceability of this
Agreement, (ii) would reasonably be expected to materially and adversely affect
the business, financial position, or results of operations of Acquirer, or (iii)
would reasonably be expected to materially and adversely affect the ability of
Acquirer to perform its obligations hereunder, or under any document to be
delivered pursuant hereto.
(d) Units Validly Issued. The Units, when issued, will have been
duly and validly authorized and issued, free of any preemptive or similar
rights, and will be fully paid and nonassessable, without any obligation to
restore capital except as required by the Virginia Revised Uniform Limited
Partnership Act (the "Limited Partnership Act"). Upon execution and delivery of
the Partnership Agreement by Contributor, Contributor shall be admitted as a
limited partner of Acquirer as of the Closing Date and shall be entitled to all
of the rights and protections of a limited partner under the Limited Partnership
Act and the provisions of the Partnership Agreement, with the same rights,
preferences, and privileges as all other limited partners on a pari passu basis.
(e) Consents. Each consent, approval, authorization, order, license,
certificate, permit, registration, designation, or filing by or with any
governmental agency or body necessary for the execution, delivery, and
performance of this Agreement or the transactions contemplated hereby by
Acquirer has been obtained.
(f) Bankruptcy with respect to Acquirer. No Act of Bankruptcy has
occurred with respect to Acquirer. As used herein, "Act of Bankruptcy" shall
mean if a party hereto shall (A) apply for or consent to the appointment of, or
the taking of possession by, a receiver,
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custodian, trustee or liquidator of itself or of all or a substantial part of
its property, (B) admit in writing its inability to pay its debts as they become
due, (C) make a general assignment for the benefit of its creditors, (D) file a
voluntary petition or commence a voluntary case or proceeding under the Federal
Bankruptcy Code (as now or hereafter in effect), (E) be adjudicated bankrupt or
insolvent, (F) file a petition seeking to take advantage of any other law
relating to bankruptcy, insolvency, reorganization, winding-up or composition or
adjustment of debts, (G) fail to controvert in a timely and appropriate manner,
or acquiesce in writing to, any petition filed against it in an involuntary case
or proceeding under the Federal Bankruptcy Code (as now or hereafter in effect),
or (H) take any action for the purpose of effecting any of the foregoing.
(g) Brokerage Commission. Acquirer has not engaged the services of,
nor has it or will it or Contributor become liable to, any real estate agent,
broker, finder or any other person or entity for any brokerage or finder's fee,
commission or other amount with respect to the transactions described herein on
account of any action by Acquirer. Acquirer hereby agrees to indemnify and hold
Contributor and its employees, directors, members, partners, affiliates and
agents harmless against any claims, liabilities, damages or expenses arising out
of a breach of the foregoing. This indemnification shall survive Closing or any
termination of this Agreement.
2.2 Representations by Contributor. Contributor hereby represents and
warrants unto Acquirer that each and every one of the following statements is
true, correct, and complete in every material respect as of the date of this
Agreement and will be true, correct, and complete as of the Closing Date:
(a) Organization and Power. Contributor is duly organized, validly
existing, and in good standing as a Virginia limited liability company.
Contributor has full right, power, and authority to enter into this Agreement
and to assume and perform all of its obligations under this Agreement; and the
execution and delivery of this Agreement and the performance by Contributor of
its obligations hereunder have been duly authorized by all requisite action of
Contributor and require no further action or approval of Contributor's members
or managers or of any other individuals or entities in order to constitute this
Agreement as a binding and enforceable obligation of Contributor.
(b) Noncontravention. Neither the entry into nor the performance of,
or compliance with, this Agreement by Contributor has resulted, or will result,
in any violation of, or default under, or result in the acceleration of, any
obligation under any limited liability company agreement, operating agreement,
regulation, mortgage, indenture, lien agreement, note, contract, permit,
judgment, decree, order, restrictive covenant, statute, rule, or regulation
applicable to Contributor or to the Membership Interest.
(c) Litigation. There is no action, suit, claim, or proceeding
pending or threatened against or affecting Contributor, its membership interest
in the Liquidating LLC or the Membership Interest in any court, or before any
arbitrator, or before any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality which (A) in
any manner raises any question affecting the validity or enforceability of this
Agreement,
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(B) would reasonably be expected to materially and adversely affect the
business, financial position or results of operations of Contributor, (C) would
reasonably be expected to materially and adversely affect the ability of
Contributor to perform its obligations hereunder, or under any document to be
delivered pursuant hereto, (D) would reasonably be expected to create a lien on
the Membership Interest, any part thereof, or any interest therein, or (E) would
reasonably be expected to adversely affect the Membership Interest, any part
thereof, or any interest therein.
(d) Good Title. (A) Contributor has good title to its membership
interest in the Liquidating LLC on the date hereof and will have good title to
the Membership Interest on the Closing Date (other than the LLC Operating
Agreement), (B) its membership interest in the Liquidating LLC on the date
hereof is and the Membership Interest on the Closing Date will be free and clear
of all liens, encumbrances, pledges, voting agreements and security interests
whatsoever (other than the LLC Operating Agreement), and (C) Contributor has not
granted any other person or entity an option to purchase or a right of first
refusal upon its membership interest in the Liquidating LLC or in the Membership
Interest nor are there any agreements or understandings between Contributor and
any other person or entity with respect to the disposition of its membership
interest in the Liquidating LLC or the Membership Interest (other than the LLC
Operating Agreement).
(e) No Consents. Each consent, approval, authorization, order,
license, certificate, permit, registration, designation, or filing by or with,
any governmental agency or body necessary of the execution, delivery, and
performance of this Agreement or the transactions contemplated hereby by
Contributor has been obtained or will be obtained on or before the Closing Date.
(f) Securities Law Matters. (i) In acquiring the Units and engaging
in this transaction, neither Contributor nor any member or shareholder thereof
is relying upon any representations made to it by Acquirer, or any of its
partners, officers, employees, or agents that are not contained herein.
Contributor is aware of and understands the risks involved in investing in the
Units and in the Common Stock issuable upon redemption of such Units.
Contributor has had an opportunity to ask questions of, and to receive answers
from, Acquirer and the REIT or a person or persons authorized to act on their
behalf, concerning the terms and conditions of an investment in the Units and
the financial condition, affairs, and business of Acquirer and the REIT.
Contributor confirms that all documents, records, and information pertaining to
its investment in Acquirer that have been requested by it, have been made
available or delivered to Contributor prior to the date hereof.
(ii) Contributor understands that neither the Units nor the
Common Stock issuable upon redemption of the Units have been registered under
the Securities Act or any state securities acts and are instead being offered
and sold in reliance on an exemption from such registration requirements. The
Units issuable to Contributor are being acquired solely for its own account, for
investment, and are not being acquired with a view to, or for resale in
connection with, any distribution, subdivision, or fractionalization thereof, in
violation of such laws, and Contributor does not have any present intention to
enter into any contract, undertaking,
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agreement, or arrangement with respect to any such resale. Contributor
understands that any certificates representing the Units will contain
appropriate legends reflecting the requirement that the Units not be resold by
Contributor without registration under such laws or the availability of an
exemption from such registration.
(g) Accredited Investors. Contributor is an accredited investor as
that term is defined in Rule 501 of Regulation D under the Securities Act of
1933, as amended.
(h) Tax Matters. (A) Contributor represents and warrants that it has
obtained from its own counsel advice regarding the tax consequences of (i) the
transfer of the Membership Interest to Acquirer and the receipt of Units as
consideration therefor, (ii) Contributor's admission as a partner of Acquirer,
and (iii) any other transaction contemplated by this Agreement. Contributor
further represents and warrants that it has not relied on Acquirer or Acquirer's
representatives or counsel for such tax advice.
(i) Bankruptcy with respect to Contributor. No Act of Bankruptcy has
occurred with respect to Contributor.
(j) Brokerage Commission. Contributor has not engaged the services
of, nor has it or will it or Acquirer become liable to, any real estate agent,
broker, finder or any other person or entity for any brokerage or finder's fee,
commission or other amount with respect to the transactions described herein on
account of any action by Contributor. Contributor hereby agrees to indemnify and
hold Acquirer and its employees, directors, members, partners, affiliates and
agents harmless against any claims, liabilities, damages or expenses arising out
of a breach of the foregoing. This indemnification shall survive Closing or any
termination of this Agreement.
(k) Default. To Contributor's actual knowledge, Contributor is not
in default under the Liquidating LLC's operating agreement (the "Liquidating LLC
Operating Agreement") or the LLC Operating Agreement.
2.3 Covenants of Acquirer. Acquirer agrees as follows:
(a) Further Acts. In addition to the acts, instruments and
agreements recited herein and contemplated to be performed, executed and
delivered by Acquirer and Contributor, Acquirer shall perform, execute, and
deliver or cause to be performed, executed, and delivered at the Closing or
after the Closing, any and all further acts, instruments, and agreements and
provide such further assurances as Contributor may reasonably require to
consummate the transactions contemplated hereunder.
2.4 Covenants of Contributor. Contributor agrees as follows:
(a) Actions Regarding Membership Interest. Except as otherwise
permitted hereby, from the date hereof until the Closing Date, Contributor shall
use reasonable commercial
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efforts not to take any action or fail to take any action within Contributor's
control the result of which would (1) have a material adverse effect on its
membership interest in the Liquidating LLC, the Membership Interest, the
Property, Contributor's ability to contribute, transfer, assign and convey the
Membership Interest to Acquirer or Acquirer's ability to continue the ownership
and operation thereof after the Closing Date in substantially the same manner as
presently conducted or (2) cause any of the representations and warranties
contained in Section 2.2 to be untrue as of the Closing Date.
(b) Confidentiality. Contributor acknowledges that the matters
relating to the REIT, the IPO, this Agreement, and the other documents, terms,
conditions and information related thereto (collectively, the "Information") are
confidential in nature. Therefore, Contributor covenants and agrees to keep the
Information confidential and will not (except as required by applicable law,
regulation or legal process, and only after compliance with the provisions of
this Section 2.6) prior to the IPO, without Acquirer's prior written consent,
disclose any Information in any manner whatsoever; provided, however, that the
Information may be revealed only to Contributor's employees, legal counsel and
financial advisors, each of whom shall be informed of the confidential nature of
the Information. In the event that Contributor or its key employees, legal
counsel or financial advisors (collectively, the "Information Group") are
requested pursuant to, or required by, applicable law, regulation or legal
process to disclose any of the Information, the applicable member of the
Information Group will notify Acquirer promptly so that it may seek a protective
order or other appropriate remedy or, in its sole discretion, waive compliance
with the terms of this Section 2.6. Contributor acknowledges that remedies at
law may be inadequate to protect Acquirer or the REIT against any actual or
threatened breach of this Section 2.6, and, without prejudice to any other
rights and remedies otherwise available, Contributor agrees to the granting of
injunctive relief in favor of the REIT and/or Acquirer without proof of actual
damages. Notwithstanding any other express or implied agreement to the contrary,
the parties agree and acknowledge that each of them and each of their employees,
representatives, and other agents may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of the transaction
and all materials of any kind (including opinions or other tax analyses) that
are provided to any of them relating to such tax treatment and tax structure,
except to the extent that confidentiality is reasonably necessary to comply with
U.S. federal or state securities laws. For purposes of this paragraph, the terms
"tax treatment" and "tax structure" have the meanings specified in Treasury
Regulation section 1.6011-4(c).
(c) Liquidation Transaction. Contributor hereby consents to the
Liquidation Transaction and agrees to the admission of Holualoa as a member in
the LLC.
(d) Further Acts. In addition to the acts, instruments and
agreements recited herein and contemplated to be performed, executed and
delivered by Acquirer and Contributor, Contributor shall perform, execute, and
deliver or cause to be performed, executed, and delivered at the Closing or
after the Closing, any and all further acts, instruments, and agreements and
provide such further assurances as Acquirer may reasonably require to consummate
the transactions contemplated hereunder.
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ARTICLE III
CONDITIONS PRECEDENT TO THE CLOSING
3.1 Conditions to Acquirer's Obligations. In addition to any other
conditions set forth in this Agreement, Acquirer's obligation to consummate the
Closing is subject to the timely satisfaction of each and every one of the
conditions and requirements set forth in this Section 3.1, all of which shall be
conditions precedent to Acquirer's obligations under this Agreement.
(a) Contributor's Obligations. Contributor shall have performed all
obligations of Contributor hereunder which are to be performed prior to Closing,
and shall have delivered or caused to be delivered to Acquirer, all of the
documents and other information required of Contributor pursuant to Section 4.2.
(b) Contributor's Representations and Warranties. Contributor's
representations and warranties set forth in Section 2.2 shall be true and
correct in all material respects as if made again on the Closing Date, and
Contributor shall have executed and delivered to Acquirer at Closing a
certificate to the foregoing effect.
(c) No Injunction. On the Closing Date, there shall be no effective
injunction, writ, preliminary restraining order or other order issued by a court
of competent jurisdiction restraining or prohibiting the consummation of the
transactions contemplated hereby.
(d) Completion of IPO. The IPO shall have been completed.
(e) Liquidation Transaction. The Liquidation Transaction shall have
been consummated.
(f) Mortgage Loan. The Mortgage Loan shall be paid off on the
Closing Date.
(g) Closing. The Closing shall have occurred on or prior to March
31, 2005.
3.2 Conditions to Contributor's Obligations. In addition to any other
conditions set forth in this Agreement, Contributor's obligations to consummate
the Closing is subject to the timely satisfaction of each and every one of the
conditions and requirements set forth in this Section 3.2, all of which shall be
conditions precedent to Contributor's obligations under this Agreement.
(a) Acquirer's Obligations. Acquirer shall have performed all
obligations of Acquirer hereunder which are to be performed prior to Closing,
and shall have delivered or caused to be delivered to Contributor, all of the
documents and other information required of Acquirer pursuant to Section 4.3.
(b) Acquirer's Representations and Warranties. Acquirer's
representations and warranties set forth in Section 2.1 shall be true and
correct in all material respects as if made
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again on the Closing Date, and Acquirer shall have executed and delivered to
Contributor at Closing a certificate to the foregoing effect.
(c) No Injunction. On the Closing Date, there shall be no effective
injunction, writ, preliminary restraining order or other order issued by a court
of competent jurisdiction restraining or prohibiting the consummation of the
transactions contemplated hereby.
(d) Completion of IPO. The IPO shall have been completed.
(e) Liquidation Transaction. The Liquidation Transaction shall have
been consummated.
(f) Mortgage Loan. The Mortgage Loan shall be paid off on the
Closing Date.
(g) Closing. The Closing shall have occurred on or prior to March
31, 2005.
ARTICLE IV
CLOSING AND CLOSING DOCUMENTS
4.1 Closing. The consummation and closing (the "Closing") of the
transactions contemplated under this Agreement shall take place at the offices
of Hunton & ▇▇▇▇▇▇▇▇ LLP, Washington, D.C., or such other place as is mutually
agreeable to the parties, on the date of the closing of the IPO (the "Closing
Date"), or as otherwise set by agreement of the parties; provided, however, that
this Agreement shall terminate if Closing does not occur prior to March 31,
2005.
4.2 Contributor's Deliveries. At the Closing, Contributor shall deliver
the following to Acquirer in addition to all other items required to be
delivered to Acquirer by Contributor:
(a) Assignment of Membership Interest. Contributor shall have
executed and delivered to Acquirer an Assignment and Assumption Agreement, in
substantially the form of Exhibit A attached hereto (the "Assignment and
Assumption Agreement");
(b) Execution of Partnership Agreement. The Signature page of the
Partnership Agreement duly executed by Contributor as a limited partner; and
(c) Authority Documents. Evidence satisfactory to Acquirer that the
person or persons executing the closing documents on behalf of Contributor has
full right, power, and authority to do so.
(d) FIRPTA Certificate. An affidavit from Contributor certifying
pursuant to Section 1445 of the Internal Revenue Code that Contributor is not a
foreign corporation, foreign partnership, foreign trust, foreign estate or
foreign person (as those terms are defined in the
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Internal Revenue Code and the Income Tax Regulations promulgated thereunder), in
form and substance satisfactory to Acquirer.
(e) Certificate of Representations and Warranties. The certificate
required by Section 3.1.
(f) Other Documents. Any other document or instrument reasonably
requested by Acquirer or required hereby.
4.3 Acquirer's Deliveries. At the Closing, Acquirer shall deliver the
following to Contributor:
(a) Certificates for Units. If certificates are issued, certificates
duly issued by Acquirer in the name of Contributor as of the Closing Date
representing the Units to which Contributor is entitled pursuant to Section 1.2
of this Agreement;
(b) Assumption of Membership Interest. Acquirer shall have executed
and delivered to Contributor an Assignment and Assumption Agreement.
(c) Executed Partnership Agreement. An original of the Partnership
Agreement, duly executed by its general partner; and
(d) Authority Documents. Evidence satisfactory to Contributor that
the person or persons executing the closing documents on behalf of Acquirer have
full right, power, and authority to do so.
(e) Certificate of Representations and Warranties. The certificate
required by Section 3.2.
(f) Other Documents. Any other document or instrument reasonably
requested by Contributor or required hereby.
4.4 Fees and Expenses; Closing Costs. Acquirer shall pay all fees,
expenses and closing costs relating to the transactions contemplated by this
Agreement; provided however, that Contributor shall pay its own attorneys' and
consultants' fees and expenses.
4.5 Adjustments.
(a) At Closing, Contributor shall be credited with Contributor's
Share of any cash held by the LLC or by the property manager for the benefit of
the LLC as of the date of Closing.
(b) All income and expenses with respect to the Membership Interest,
and applicable to the period of time before and after Closing, determined in
accordance with generally accepted accounting principles consistently applied,
shall be allocated between
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Contributor and Acquirer. Contributor shall be entitled to Contributor's Share
of all income and responsible for Contributor's Share of all expenses of the LLC
and the Property for the period of time up to but not including the date of
Closing, and Acquirer shall be entitled to all such income and responsible for
all such expenses for the period of time after and including the date of
Closing. Without limiting the generality of the foregoing, the following items
of income and expense shall be prorated at Closing:
(i) Rents (including additional rent, pass throughs, etc.).
(Rent collections during month of Closing shall be applied
first to the current month's rent, then to any past due rents,
and then to future (prepaid) rents. At Closing, a
reconciliation of pass throughs shall be made based on the
property manager's most recent reforecast of operating results
for the calendar year. Rent collections following the month of
Closing shall be applied first to the current month's rent,
then to any past due rents accruing on or after Closing, then
to any past due rents accruing before Closing and then to
future (prepaid) rents. Acquirer agrees to use reasonable
commercial efforts (but shall not be required to commence
litigation or eviction proceedings) to collect any past due
rents accruing before Closing and to promptly remit to
Contributor its portion of any such rent collected.)
(ii) Real estate and personal property taxes. (If the LLC is
in process of prosecuting a property tax appeal when Closing
occurs, Acquirer agrees to cause the Company to continue to
use the Company's existing attorney or tax appeal consultant
until such appeal is completed. Any savings in taxes realized
and attorney or consultant fees incurred shall be prorated
between Contributor and Acquirer based on the relevant tax
year(s).)
(iii) Utility charges (including but not limited to charges
for water, sewer and electricity).
(c) Contributor shall be responsible for Contributor's Share of all
one time tenant improvement costs, tenant allowances, broker's fees and
commissions and all other costs and expenses associated with existing leases of
the Property; provided, however, that Acquirer shall be responsible for all
tenant improvement costs, tenant allowances, broker's fees and commissions and
other one time costs and expenses associated with new leases of the Property
entered into after the date of this Agreement with the consent of Acquirer.
(d) Acquirer shall pay off the Mortgage Loan on the Closing Date.
However, Acquirer shall be solely responsible (and shall not receive any credit
against the Purchase Price) for any prepayment penalties or lender fees paid in
connection with the pay off of the Mortgage Loan.
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ARTICLE V
MISCELLANEOUS
5.1 Notices. Any notice provided for by this Agreement and any other
notice, demand, or communication required hereunder shall be in writing and
either delivered in person (including by confirmed facsimile transmission) or
sent by registered or certified mail or overnight courier, return receipt
requested, in a sealed envelope, postage prepaid, and addressed to the party for
which such notice, demand or communication is intended at such party's address
as set forth in this Section. All notices to Acquirer shall be addressed as
follows:
ACQUIRER:
Columbia Equity LP
c/▇ ▇▇▇▇ Capital Corporation
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇, III
Contributor's address for all purposes under this Agreement shall be the
following:
CONTRIBUTOR:
[ADDRESS]
Any address or name specified above may be changed by a notice given by the
addressee to the other party. Any notice, demand or other communication shall be
deemed given and effective as of the date of delivery in person or receipt set
forth on the return receipt. The inability to deliver because of changed address
of which no notice was given, or rejection or other refusal to accept any
notice, demand or other communication, shall be deemed to be receipt of the
notice, demand or other communication as of the date of such attempt to deliver
or rejection or refusal to accept.
5.2 Entire Agreement; Modifications and Waivers; Cumulative Remedies. This
Agreement supersedes any existing letter of intent between the parties,
constitutes the entire agreement among the parties hereto and may not be
modified or amended except by instrument in writing signed by the parties
hereto, and no provisions or conditions may be waived other than by a writing
signed by the party waiving such provisions or conditions. No delay or omission
in the exercise of any right or remedy accruing to Contributor or Acquirer upon
any breach under this Agreement shall impair such right or remedy or be
construed as a waiver of any such breach theretofore or thereafter occurring.
The waiver by Contributor or Acquirer of any breach of any term, covenant, or
condition herein stated shall not be deemed to be a waiver of any other breach,
or of a subsequent breach of the same or any other term, covenant, or condition
herein contained.
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All rights, powers, options, or remedies afforded to Contributor or Acquirer
either hereunder or by law shall be cumulative and not alternative, and the
exercise of one right, power, option, or remedy shall not bar other rights,
powers, options, or remedies allowed herein or by law, unless expressly provided
to the contrary herein.
5.3 Exhibits. All exhibits referred to in this Agreement and attached
hereto are hereby incorporated in this Agreement by reference.
5.4 Successors and Assigns. Except as set forth in this Article, this
Agreement may not be assigned by Acquirer or Contributor without the prior
approval of the other party hereto. This Agreement shall be binding upon, and
inure to the benefit of, Contributor, Acquirer, and their respective legal
representatives, successors, and permitted assigns.
5.5 Article Headings. Article headings and article and section numbers are
inserted herein only as a matter of convenience and in no way define, limit, or
prescribe the scope or intent of this Agreement or any part hereof and shall not
be considered in interpreting or construing this Agreement.
5.6 Governing Law. This Agreement shall be construed and interpreted in
accordance with the laws of the Commonwealth of Virginia, without regard to
conflicts of laws principles.
5.7 Counterparts. This Agreement may be executed in any number of
counterparts and by any party hereto on a separate counterpart, each of which
when so executed and delivered shall be deemed an original and all of which
taken together shall constitute but one and the same instrument.
5.8 Survival. All representations and warranties contained in this
Agreement, and all covenants and agreements contained in the Agreement which
contemplate performance after the Closing Date shall survive the Closing.
5.9 Severability. In case any one or more of the provisions contained in
this Agreement shall for any reason be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provision hereof, and this Agreement shall be
construed as if such invalid, illegal, or unenforceable provision had never been
contained herein.
5.10 Attorneys' Fees. Should a party employ an attorney or attorneys to
enforce any of the provisions hereof or to protect its interest in any manner
arising under this Agreement, or to recover damages for breach of this
Agreement, any non-prevailing party in any action pursued in a court of
competent jurisdiction (the finality of which is not legally contested) shall
pay to the prevailing party all reasonable costs, damages, and expenses,
including reasonable attorneys' fees, expended or incurred in connection
therewith.
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[SIGNATURES APPEAR ON FOLLOWING PAGES.]
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IN WITNESS WHEREOF, this Agreement has been entered into effective as of
the date above first written.
CONTRIBUTOR:
▇▇▇▇ Capital Real Estate Investment, LLC, a
Virginia limited liability company
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇, III
----------------------------------------
Name: _____________________________________
Title: ____________________________________
ACQUIRER:
Columbia Equity LP, a Virginia limited partnership
By: __________________, a __________, its
general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇, III
---------------------------------------
Name: _____________________________________
Title: ____________________________________
-15-
EXHIBIT A
ASSIGNMENT
_________________________, a __________ ("Assignor"), for good and valuable
consideration paid to the Assignor by Columbia Equity, LP, a
[___________________] ("Assignee"), pursuant to the Contribution Agreement dated
as of ____________, 2004, by and between Assignor and Assignee (the "Agreement")
and for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, does hereby sell, assign, transfer, convey and deliver
to the Assignee, its successors and assigns, good and indefeasible title to the
Membership Interest, free and clear of all liens, encumbrances, security
interests, prior assignments, voting agreements, conditions, restrictions,
pledges, claims, and other matters affecting title thereto, subject to the LLC
Operating Agreement. Assignee does hereby accept the foregoing Assignment and
assumes and agrees to be responsible for all liabilities and obligations under
the LLC Operating Agreement from and after the date hereof relating to the
Membership Interest.
Capitalized terms used but not defined herein shall have the respective meanings
ascribed to them in the Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Assumption Agreement to be signed by a duly authorized officer of each, this __
day of _____, 2004.
ASSIGNOR:
_________________________, a
_________________________
By: _________________________________________
Name: _______________________________________
Title: ______________________________________
ASSIGNEE:
_________________________, a
_________________________
By: _________________________________________
Name: _______________________________________
Title: ______________________________________