MEMBERSHIP INTEREST PURCHASE AND CONTRIBUTION AGREEMENT
Exhibit
10.117
THIS
MEMBERSHIP INTEREST PURCHASE AND CONTRIBUTION AGREEMENT (this “Agreement”),
dated as of December 28, 2006, by and among NKFGMS Owners, LLC, a Delaware
limited liability company (the “Company”), The ▇▇▇▇ Construction Services
Company, L.L.C., a Delaware limited liability company (the “▇▇▇▇-▇▇▇▇ Member”),
NKFFM Limited Liability Company, a New Jersey limited liability company (the
“Newmark Member”), ▇▇▇▇▇ ▇▇▇▇▇▇ (“Panzer”), ▇▇▇ ▇▇▇▇▇▇ (“▇▇▇▇▇▇”), Newmark &
Company Real Estate, Inc. d/b/a Newmark ▇▇▇▇▇▇ ▇▇▇▇▇, a New York corporation
(“Newmark”), and ▇▇▇▇-▇▇▇▇ Realty, L.P., a Delaware limited partnership (“M-C
Realty”).
WHEREAS,
the ▇▇▇▇-▇▇▇▇ Member owns all of the issued and outstanding membership interests
(the “▇▇▇▇ Global Membership Interests”) of ▇▇▇▇ Global Facility Services,
L.L.C. (“▇▇▇▇ Global”);
WHEREAS,
▇▇▇▇ Global is engaged in the ▇▇▇▇ Global Business;
WHEREAS,
the ▇▇▇▇-▇▇▇▇ Member desires to contribute to the Company the ▇▇▇▇ Global
Membership Interests in exchange, in part, for Company Membership
Interests;
WHEREAS,
the Newmark Member desires to contribute to the Company cash and perform
certain
services for the Company in exchange for Company Membership
Interests;
WHEREAS,
▇▇▇▇▇▇ desires to contribute to the Company cash and perform professional
services for the Company in exchange for Company Membership Interests;
and
WHEREAS,
Panzer desires to contribute to the Company cash in exchange for Company
Membership Interests.
NOW,
THEREFORE, in consideration of the promises and the mutual agreements and
covenants hereinafter set forth, and intending to be legally bound, the parties
hereby agree as follows:
Article
I
DEFINITIONS
Section
1.01 Certain
Defined Terms.
For purposes of this Agreement:
“Action”
means
any claim, action, suit, arbitration, inquiry, proceeding or investigation
by or
before any Governmental Authority.
“Affiliate”
means,
with respect to any Person (the “Subject Person”), any: (i) direct or
indirect shareholder, partner, member, employee, officer, director, manager,
owner, or agent of, or (in the case where such Subject Person is a Member,
any
Manager appointed by, such Subject Person) or, otherwise, any Person that
has
any direct or indirect (including, without limitation, voting) interest in,
and/or any managerial control over, such Subject Person, or any other Person
acting for or on behalf of such Subject Person; (ii) any member of the family
of
such Subject Person or any Person referred to in clause (i) above (within
the
meaning of Section 267(c)(4) of the Code, except that for this purpose, a
legally adopted child of any individual shall be treated as a child of such
individual by blood); (iii) Person that has any direct or indirect voting
control (including by contractual arrangement) over such Subject Person or
any
Person referred to in clause (i) above; (iv) Person in which such Subject
Person and/or any one or more of the Persons referred to in clauses (i) or
(ii)
above owns or possesses (including by contractual arrangement), directly
or
indirectly, any beneficial or voting interest; and (iv) any of the heirs,
executors, administrators, personal or legal representatives, successors
and
assigns of any or all of the foregoing Persons referred to in clauses (i)
through (iv) above,
as well
as any “Affiliate” thereof.
“Ancillary
Agreements”
means
(i) the Loans, Sale and Services Agreement, and (ii) the Company Operating
Agreement.
“Claim”
means
all actions, suits or claims or legal, administrative or arbitral proceedings
or
investigations.
“Company
Interest”
means
a
membership interest in the Company issued in accordance with, and subject
to,
the Company Operating Agreement.
“Company
Member”
shall
mean a Person admitted as a Member of the Company in accordance with the
Company
Operating Agreement.
“Company
Operating Agreement”
means
the Operating Agreement of the Company, dated as of December 28, 2006, by
and
among the Company, the ▇▇▇▇-▇▇▇▇ Member, the Newmark Member, ▇▇▇▇▇▇ and Panzer,
as such agreement may be amended from time to time in accordance with its
terms.
“Code”
means
the Internal Revenue Code of 1986, as amended through the date
hereof.
“Disclosure
Schedule”
means
the Disclosure Schedule attached hereto and delivered in connection with
this
Agreement.
“Encumbrance”
means
any security interest, pledge, charge, option, right, hypothecation, mortgage,
lien, claim or other encumbrance.
“▇▇▇▇
Global Business”
means
the business operated by ▇▇▇▇ Global and the ▇▇▇▇ Subsidiaries on the date
hereof.
“▇▇▇▇
Subsidiaries”
means
the subsidiaries of ▇▇▇▇ Global listed in Section 3.02(a) of the Disclosure
Schedule.
“Governmental
Authority”
means
any foreign, federal, national, supranational, state, provincial, local or
other
government, governmental, regulatory or administrative authority, agency,
board,
bureau, agency, instrumentality or commission or any court, tribunal, or
judicial or arbitral body.
2
“Knowledge
of the ▇▇▇▇-▇▇▇▇ Member”
means
the knowledge of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇.
“Knowledge
of the Newmark Member”
means
the knowledge of ▇▇▇▇▇ ▇▇▇▇▇, Panzer and ▇▇▇▇▇▇ ▇▇▇▇▇.
“Law”
means
any foreign, federal, national, supranational, state, provincial, local or
similar statute, law, ordinance, regulation, rule, code, order, requirement
or
rule of law (including common law) in effect as of the date hereof.
“Liabilities”
means
any and all debts, liabilities and obligations, whether accrued or fixed,
absolute or contingent, matured or unmatured or determined or determinable,
including those arising under any Law, Action or Order and those arising
under
any contract, agreement, arrangement, commitment or other
undertaking.
“Loans,
Sale and Services Agreement”
means
the Loans, Sale and Services Agreement, dated the date hereof, in the form
executed by Newmark, the Company and the ▇▇▇▇-▇▇▇▇ Member.
“▇▇▇▇▇▇
Certificate”
means
the certificate, dated the date hereof, executed and delivered by ▇▇▇▇▇▇
to the
▇▇▇▇-▇▇▇▇ Member, a copy of which is attached hereto as Exhibit A, upon which
the ▇▇▇▇-▇▇▇▇ Member is relying in part in making the representations and
warranties set forth in Article III hereof.
“Material
Adverse Effect”
means
a
material adverse effect on the results of the operation or financial condition
of a Person and its Affiliates, taken as a whole.
“Order”
means
any order, writ, judgment, injunction, decree, stipulation, determination
or
award entered by or with any Governmental Authority.
“Original
▇▇▇▇ Agreement”
means
the Membership Interest Purchase and Contribution Agreement, by and among
▇▇.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ (“▇▇▇▇▇▇▇”), SCG Holding Corp. (together with ▇▇▇▇▇▇▇, the “▇▇▇▇
▇▇▇▇▇▇▇”), ▇▇▇▇-▇▇▇▇ Realty Acquisition Corp., and ▇▇▇▇-▇▇▇▇ Realty L.P., dated
as of March 7, 2006, as amended on March 31, 2006, May 9, 2006, August 3,
2006,
September 25, 2006, October 11, 2006, November 15, 2006 and December 19,
2006, a
full copy of which has been delivered to Newmark. Capitalized terms used
in
exhibits attached to this Agreement which include provisions of the Original
▇▇▇▇ Agreement, and capitalized terms specifically referring to the Original
▇▇▇▇ Agreement, shall have the meanings ascribed to such terms in the Original
▇▇▇▇ Agreement.
“Permitted
Encumbrances”
means
(a) statutory liens for current Taxes not yet due or delinquent (or which
may be
paid without interest or penalties) or the validity or amount of which is
being
contested in good faith by appropriate proceedings, or (b) mechanics’,
carriers’, workers’, repairers’ and other similar liens arising or incurred in
the ordinary course of business relating to obligations as to which there
is no
default or the validity or amount of which is being contested in good faith
by
appropriate proceedings, or pledges, deposits or other liens securing the
performance of bids, trade contracts, leases or statutory obligations (including
workers’ compensation, unemployment insurance or other social security
legislation).
3
“Person”
means
any individual, partnership, firm, corporation, limited liability company,
joint
venture, limited public company, limited liability partnership, association,
trust, unincorporated organization or other entity, as well as any syndicate
or
group that would be deemed to be a person under Section 13(d)(3) of the
Securities Exchange Act.
“Subsidiary”
means
a
Person in which another Person owns or controls, directly or indirectly,
more
than 50% of the beneficial or voting interest of such Person, or has the
power
to direct or cause the direction of the management and policies of such Person
whether through the ownership of such voting securities, by contract or
otherwise.
Article
II
PURCHASE
AND SALE
Section
2.01 Contributions
and Consideration.
(a) Upon
the
terms and subject to the conditions of this Agreement, at the Closing, the
▇▇▇▇-▇▇▇▇ Member shall contribute, sell, assign, transfer and deliver to
the
Company all of the ▇▇▇▇ Global Membership Interests, and the Company shall
accept as a capital contribution from the ▇▇▇▇-▇▇▇▇ Member all of the ▇▇▇▇
Global Membership Interests, free and clear of all Encumbrances. In
consideration for such contribution, the ▇▇▇▇-▇▇▇▇ Member shall receive from
the
Company, at the Closing, $600,000 in cash plus a Company Interest equal to
40%
of all of the Company Interests issued and outstanding on the Closing Date,
which Company Interests may be reduced, from time to time, to no less than
35%
of all issued and outstanding Company Interests, in accordance with the terms
and conditions of the Company Operating Agreement.
(b) Upon
the
terms and subject to the conditions of this Agreement, at the Closing, the
Newmark Member shall contribute and deliver to the Company $400,000 in cash,
and
agree to perform certain services for the Company in accordance with the
Loans,
Sale and Services Agreement. In consideration for such contributions, the
Newmark Member shall receive from the Company, at the Closing, a Company
Interest equal to 40% of all of the Company Interests issued and outstanding
on
the Closing Date, which Company Interests may be reduced, from time to time,
to
no less than 35% of all issued and outstanding Company Interests, in accordance
with the terms and conditions of the Company Operating Agreement.
(c) Upon
the
terms and subject to the conditions of this Agreement, at the Closing, ▇▇▇▇▇▇
shall contribute and deliver to the Company $100,000 in cash, and execute
and
deliver to the Company the ▇▇▇▇▇▇ Employment Agreement. In consideration
thereof, ▇▇▇▇▇▇ shall receive from the Company, at the Closing, a Company
Interest equal to 10% of all of the Company Interests issued and outstanding
on
the Closing Date. The parties hereto acknowledge and agree that, in accordance
with the provisions of the ▇▇▇▇▇▇ Employment Agreement and the Company Operating
Agreement, ▇▇▇▇▇▇ has the opportunity to earn Company Interests of up to
an
additional 10% of the Company Interests, which Company Interests shall be
transferred from each of the ▇▇▇▇-▇▇▇▇ Member and the Newmark Member, pari
passu, in accordance with the terms and conditions of the Company Operating
Agreement.
4
(d) Upon
the
terms and subject to the conditions of this Agreement, at the Closing, Panzer
shall contribute and deliver to the Company $100,000 in cash. In consideration
for such contribution, Panzer shall receive from the Company, at the Closing,
a
Company Interest equal to 10% of all of the Company Interests issued and
outstanding on the Closing date.
Section
2.02 Closing.
Upon the terms of this Agreement and subject to the satisfaction or waiver
of
the conditions of this Agreement, a closing of the contributions contemplated
by
Section 2.01 above, and the issuance of the Company Interests in consideration
thereof, shall take place on December 28, 2006 or such other dates as shall
be
determined by the parties hereto (the “Closing Date”), at the offices of
Newmark, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ (the “Closing”).
Section
2.03 Closing
Deliveries.
At or prior to the Closing, the parties hereto shall deliver, or cause to
be
delivered, to each other, as applicable, the following:
(a) an
Assignment of the ▇▇▇▇ Global Membership Interests by the ▇▇▇▇-▇▇▇▇ Member
to
the Company, in the form attached hereto as Exhibit B;
(b) the
Loans, Sale and Services Agreement, executed by each of the parties
thereto;
(c) the
▇▇▇▇▇▇ Employment Agreement, executed by ▇▇▇▇▇▇ and the Company;
(d) the
Company Operating Agreement, executed by each of the ▇▇▇▇-▇▇▇▇ Member, the
Newmark Member, ▇▇▇▇▇▇ and Panzer;
(e) true
and
complete copies of resolutions of each of the ▇▇▇▇-▇▇▇▇ Member, M-C Realty,
the
Newmark Member and Newmark evidencing their respective authorization of the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby, each such certificate executed by an
authorized officer of each entity;
(f) a
certificate of a duly authorized officer of each of the ▇▇▇▇-▇▇▇▇ Member,
M-C
Realty, the Newmark Member and Newmark certifying (i) the names and signatures
of the officer of each who is authorized to sign this Agreement and any other
agreement delivered in connection with the transactions contemplated hereby,
and
(ii) that the representations and warranties of each party set forth in this
Agreement are true and correct, except in any case where the failure to be
true
and correct would not have a Material Adverse Effect; and
(g) such
other documents as may be reasonably required or appropriate to effectuate
the
consummation of the transactions contemplated by this Agreement.
5
Article
III
REPRESENTATIONS
AND WARRANTIES
OF
THE ▇▇▇▇-▇▇▇▇ MEMBER
Preliminary
Matters.
Reference is made to the Original ▇▇▇▇ Agreement, and the representations
and
warranties contained in Article III thereof, a copy of which is attached
hereto
and made a part hereof as Exhibit C (the “▇▇▇▇ Representations and Warranties”).
The ▇▇▇▇-▇▇▇▇ Member represents and warrants to Newmark that, to the Knowledge
of the ▇▇▇▇-▇▇▇▇ Member and except as set forth in the ▇▇▇▇▇▇ Certificate,
the
▇▇▇▇ Representations and Warranties, to the extent they relate to ▇▇▇▇ Global
and the ▇▇▇▇ Subsidiaries, (i) are, as of the date hereof (or if a
representation and warranty is made as of a specified date, as of such date),
true and correct in all material respects, and any breaches or violations
of any
such representations and warranties arising from or relating to events that
occurred after May 9, 2006 would not have a Material Adverse Effect on ▇▇▇▇
Global and the ▇▇▇▇ Subsidiaries, (the “Post May 9th
Representations”),
and (ii) were, as of May 9, 2006 (or, if a representation and warranty is
made
as of a specified date, as of such date), true and correct in all material
respects, any breaches or violations of any such representations and warranties
arising from or relating to events that occurred on or before May 9, 2006
would
not have a Material Adverse Effect on ▇▇▇▇ Global and the ▇▇▇▇ Subsidiaries
(the
“▇▇▇▇ Closing Date Representations”). To the extent the representations and
warranties set forth in Sections 3.01 through 3.10 hereof are inconsistent
with
the ▇▇▇▇ Representations and Warranties, the representations and warranties
set
forth in Sections 3.01 through 3.10 shall control. Newmark acknowledges that
(x)
in respect of the Post May 9th
Representations, the ▇▇▇▇-▇▇▇▇ Member is relying solely on the Knowledge
of the
▇▇▇▇-▇▇▇▇ Member and the ▇▇▇▇▇▇ Certificate, and (y) in respect of the ▇▇▇▇
Closing Date Representations, is relying on the ▇▇▇▇▇▇ Certificate and the
▇▇▇▇
▇▇▇▇▇▇▇ in making the ▇▇▇▇ Representations and Warranties pursuant to the
Original ▇▇▇▇ Agreement, and, in each such case, has undertaken no independent
investigation or other affirmative action to verify the Post May 9th
Representations or the ▇▇▇▇ Closing Date Representations.
Subject
to the foregoing limitations and qualifications, the ▇▇▇▇-▇▇▇▇ Member hereby
represents and warrants to the Company, Newmark and the Newmark Member, as
of
the date hereof or, if a representation or warranty is made as of a specified
date, as of such date, the following:
Section
3.01 Organization,
Authority and Qualification.
(a) The
▇▇▇▇-▇▇▇▇ Member (i) is duly organized and validly existing as a limited
liability company and is in good standing under the laws of the jurisdiction
of
its organization and (ii) has all necessary power and authority to enter
into
this Agreement and the Ancillary Agreements to which it is a party, to carry
out
its obligations hereunder and thereunder and to consummate the transactions
contemplated hereby and thereby. The execution and delivery of this Agreement
and the Ancillary Agreements to which it is a party, the performance of its
obligations hereunder and thereunder and the consummation by it of the
transactions contemplated hereby and thereby, have been duly authorized by
all
requisite action on the part of the ▇▇▇▇-▇▇▇▇ Member and no other action
by the
▇▇▇▇-▇▇▇▇ Member is necessary to authorize the transactions contemplated
hereby
or thereby or to consummate such transactions.
6
(b) ▇▇▇▇
Global (i) is duly organized and validly existing as a limited liability
company
and is in good standing under the laws of its jurisdiction of organization,
(ii)
has all necessary power and authority to own, operate or lease the properties
and assets owned, operated or leased by such company and to carry on its
business as it is currently conducted, and (iii) is duly licensed or qualified
to do business and is in good standing in each jurisdiction requiring it
to be
licensed or qualified, except for licenses and qualifications to do business,
the loss of which (individually or in the aggregate) would not reasonably
be
expected to have a Material Adverse Effect.
(c) This
Agreement has been, and upon its execution and the execution of the applicable
Ancillary Agreements shall be, duly executed and delivered by the ▇▇▇▇-▇▇▇▇
Member, and (assuming due authorization, execution and delivery by the other
parties thereto) this Agreement constitutes, and upon its execution each
of the
applicable Ancillary Agreements shall constitute, a legal, valid and binding
obligation of the ▇▇▇▇-▇▇▇▇ Member, enforceable against it in accordance
with
their respective terms.
Section
3.02 Subsidiaries.
(a) Section
3.02(a) of the Disclosure Schedule sets forth a list of the ▇▇▇▇ Subsidiaries.
Other than the ▇▇▇▇ Subsidiaries, there are no other corporations, partnerships,
limited liability companies, joint ventures, associations or other entities
in
which ▇▇▇▇ Global or the ▇▇▇▇ Subsidiaries own, of record or beneficially,
any
direct or indirect equity or other interest or any right (contingent or
otherwise) to acquire the same. Other than the ▇▇▇▇ Subsidiaries, ▇▇▇▇ Global
is
not a member of any partnership, joint venture or similar arrangement nor
is
▇▇▇▇ Global nor any of the ▇▇▇▇ Subsidiaries a participant in any partnership,
joint venture or similar arrangement.
(b) Each
▇▇▇▇
Subsidiary that is a corporation (i) is duly organized, validly existing
and in
good standing under the laws of its jurisdiction of organization, (ii) has
all
necessary power and authority to carry on its business as is currently conducted
by such ▇▇▇▇ Subsidiary, and (iii) is duly licensed or qualified to do business
and is in good standing in each jurisdiction requiring it to be licensed
or
qualified except for licenses and qualifications to do business, the loss
of
which (individually or in the aggregate) would not reasonably be expected
to
have a Material Adverse Effect.
(c) Each
▇▇▇▇
Subsidiary that is a partnership or limited liability company (i) is duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization, (ii) has all necessary power and authority
to
carry on its business as it is currently conducted by such ▇▇▇▇ Subsidiary
and
(iii) is duly licensed or qualified to do business and is in good standing
in
each jurisdiction requiring it to be licensed or qualified except for licenses
and qualifications to do business, the loss of which (individually or in
the
aggregate) would not reasonably be expected to have a Material Adverse Effect.
7
Section
3.03 Ownership
of the Membership Interests and Subsidiaries. As
of the
date hereof, the ▇▇▇▇-▇▇▇▇ Member has good and marketable title to, and is
the
lawful record and beneficial owner of, 100% of the ▇▇▇▇ Global Membership
Interests, free and clear of all Encumbrances, and the ▇▇▇▇ Global Membership
Interests represent all of the beneficial, voting, management, contingent,
economic interest and other right, title and interest in and to ▇▇▇▇
Global.
(b) With
respect to the ▇▇▇▇ Global Membership Interests, there are no
(i) outstanding ownership interests in ▇▇▇▇ Global other than the
Membership Interests owned and held by the ▇▇▇▇-▇▇▇▇ Member, (ii) securities,
options, warrants, calls, rights, commitments, agreements, arrangements or
undertakings of any kind to which the ▇▇▇▇-▇▇▇▇ Member or its Affiliates
is a
party or by which any of the foregoing is bound, which obligate the ▇▇▇▇-▇▇▇▇
Member or its Affiliates to issue, create, deliver and/or provide additional
ownership interests in ▇▇▇▇ Global or (iii) arrangements or undertakings
which
obligate the ▇▇▇▇-▇▇▇▇ Member or its Affiliates to issue, grant, extend or
enter
into any security, option, warrant, call, right, commitment, agreement,
arrangement or other undertaking with respect to ▇▇▇▇ Global or the ▇▇▇▇
Global
Membership Interests. No person or entity has any voting or management rights
with respect to ▇▇▇▇ Global other than the ▇▇▇▇-▇▇▇▇ Member as set forth
in and
subject to the ▇▇▇▇-▇▇▇▇ Member’s organizational documents.
(c) Other
than as set forth on Section 3.03(c) of the Disclosure Schedule, ▇▇▇▇ Global
owns 100%, free and clear of all Encumbrances, directly or indirectly, of,
and
has sole voting and dispositive power with respect to, all of the ownership
interests of each of the ▇▇▇▇ Subsidiaries, and there are no (i) outstanding
ownership interests in any ▇▇▇▇ Subsidiary other than the ownership interests
owned and held by ▇▇▇▇ Global, (ii) securities, options, warrants, calls,
rights, commitments, agreements, arrangements or undertakings of any kind
to
which ▇▇▇▇ Global is a party or by which any of the foregoing is bound, which
obligate ▇▇▇▇ Global to issue, create, deliver and/or provide additional
ownership interests in any ▇▇▇▇ Subsidiary or (iii) arrangements or
undertakings which obligate ▇▇▇▇ Global to issue, grant, extend or enter
into
any security, option, warrant, call, right, commitment, agreement, arrangement
or other undertaking with respect to any ▇▇▇▇ Subsidiary. No person or entity
has any voting or management rights with respect to the ▇▇▇▇ Subsidiaries
other
than ▇▇▇▇ Global as set forth in and subject to the Subsidiaries’ organizational
documents.
Section
3.04 Financial
Statements.
The ▇▇▇▇-▇▇▇▇ Member has delivered to Newmark copies of the financial
information for 2003, 2004, 2005, as described on Section 3.04 of the Disclosure
Schedule, in the form delivered to the ▇▇▇▇-▇▇▇▇ Member by the ▇▇▇▇ ▇▇▇▇▇▇▇,
and
the financial information for the first six months of 2006 as described on
Section 3.04 of the Disclosure Schedule.
Section
3.05 No
Material Adverse Effect,
Extraordinary Distributions, or Claims.
Except as set forth on Section 3.05 of the Disclosure Schedule, to the Knowledge
of the ▇▇▇▇-▇▇▇▇ Member, no event, circumstance or change since June 30,
2006
has occurred or is threatened against ▇▇▇▇ Global or the ▇▇▇▇ Subsidiaries,
the
▇▇▇▇ Global Business or the ▇▇▇▇ Global Membership Interests that, individually
or in the aggregate, has had or could reasonably be expected to have, a Material
Adverse Effect. Neither the ▇▇▇▇-▇▇▇▇ Member nor any Affiliate of the ▇▇▇▇-▇▇▇▇
Member has (i) received any extraordinary distribution of cash or property
since
acquiring the ▇▇▇▇ Global Membership Interests, or (ii) filed any claim for
indemnification under the Original ▇▇▇▇ Agreement.
8
Section
3.06 Compliance
with Laws.
Except
as
set forth on Section 3.06 of the Disclosure Schedule, ▇▇▇▇ Global, to the
Knowledge of the ▇▇▇▇-▇▇▇▇ Member (i) is not in violation of any applicable
Order or any applicable Law of any Governmental Authority, which individually
or
in the aggregate, has had, will have, or reasonably could be expected to
have, a
Material Adverse Effect, and (ii) has not received written notice that any
such
violation is being or may be alleged.
Section
3.07 No
Breach.
The execution, delivery and performance of this Agreement and any Ancillary
Agreements to which each of the ▇▇▇▇-▇▇▇▇ Member and ▇▇▇▇ Global is a party,
and
the consummation of the transactions contemplated hereby and thereby, will
not
(i) violate any provision of its charter or bylaws or any other organizational
document or any agreement, guarantee or financial obligation that it is a
party
to or for which it is liable; (ii) except as set forth on Section 3.07 of
the
Disclosure Schedule, otherwise violate, conflict with or result in the breach
of
any of the terms of, result in a material modification of the effect of,
otherwise give any other contracting party the right to terminate, or constitute
(or with notice or lapse of time or both constitute) a default under any
agreement to which it is a party or by which it may be bound or subject;
(iii)
violate any Order of any Governmental Authority against, or binding upon,
it or
the ▇▇▇▇ Global Business, or upon the ▇▇▇▇ Global Membership Interests, except
for violations which could not reasonably be expected to have a Material
Adverse
Effect; (iv) violate or result in the revocation, suspension, non-renewal
or
limitation of any Permit, the result of which would reasonably be expected
to
have a Material Adverse Effect; (v) to the Knowledge of the ▇▇▇▇-▇▇▇▇ member,
violate any Law except for violations which could not reasonably be expected
to
have a Material Adverse Effect; or (vi) result in the creation of any
Encumbrance on the ▇▇▇▇ Global Membership Interests, except for Encumbrances
which could not reasonably be expected to have a Material Adverse
Effect.
Section
3.08 Claims
and Proceedings.
Except as set forth on Section 3.08 of the Disclosure Schedule, there are
no
material outstanding Orders of any Governmental Authority pending or, to
the
Knowledge of the ▇▇▇▇-▇▇▇▇ Member, threatened against or involving ▇▇▇▇ Global
or the ▇▇▇▇ Global Business.
Section
3.09 Insurance.
Section 3.09 of the Disclosure Schedule sets forth a list (specifying the
insurer and the policy number or covering note number with respect to binders,
describing any pending claim thereunder of more than $5,000) of all policies
or
binders of fire, liability, fidelity, workmen’s compensation, vehicular and
other insurance held by ▇▇▇▇ Global for its own account to insure against
its
liability and property loss that relate to the ▇▇▇▇ Global Business. Such
policies and binders are in full force and effect. ▇▇▇▇ Global is not in
default
in any material respect with respect to any provision contained in any such
policy or binder and has not failed to give any notice or present any material
claim under any such policy or binder. ▇▇▇▇ Global has not received any written
notice of cancellation or non-renewal of any such policy or binder nor has
it
received any written notice from any of insurance carrier that any insurance
premiums or other amounts due under any such policy or binder (or replacement
coverage, including renewals) will be materially increased in the future
or that
any insurance coverage will or may not be available in the future on reasonable
commercial terms.
9
Section
3.10 Brokers
and Finders.
The
▇▇▇▇-▇▇▇▇ Member has not incurred any Liability for finder’s brokerage, agent’s
or advisory fees or commissions in connection with this Agreement, the Ancillary
Agreements or the transactions contemplated hereby or thereby.
Section
3.11 Contracts.
To
the
knowledge of the ▇▇▇▇-▇▇▇▇ Member, (i) each contract listed on Section 3.11
of
the Disclosure Schedule (the “Contracts”) was entered into in the ordinary
course of the ▇▇▇▇ Global Business, and is valid and binding on ▇▇▇▇ Global
or
the ▇▇▇▇ Global Subsidiaries, as the case may be, and (ii) subject to Section
3.07 of the Disclosure Schedule, neither the Company or any ▇▇▇▇ Global
Subsidiary, as the case may be, or any other party thereto, is in breach
of, or
default under, any Contract, except for breaches or defaults that would not
have
a material adverse effect on the ▇▇▇▇ Global Business.
Article
IIIA
REPRESENTATIONS
AND WARRANTIES OF ▇▇▇▇▇▇
To
the
knowledge of ▇▇▇▇▇▇, with respect to any agreements with subcontractors who
provide services in connection with the Contracts and which provide for payments
to a subcontractor of at least (i) $25,000 or (ii) $5,000 and provide for
services to be rendered for pest control, construction, security, window
cleaning or roofing (such agreements in sub-clause (i) and (ii) are collectively
referred to herein as the “Subcontractor Agreements”), all such Subcontractor
Agreements comply with the insurance requirements set forth in the respective
Contracts. In the event that there is any uninsured liability to the Company
as
a result of (A) the failure of coverage under its own insurance policies
and (B)
a breach by any Subcontractor to comply with the insurance requirements of
the
Subcontractor Agreement (each, a “Subcontractor Liability”), ▇▇▇▇▇▇ hereby
agrees and acknowledges that any such Subcontractor Liability shall be offset
by
▇▇▇▇▇▇’▇ Company Membership Interests but in no event in an aggregate amount in
excess of $100,0000. To the extent that the Company receives either an estoppel
certificate or a confirmation of compliance of each Subcontractor Agreement
with
the requisite insurance requirements, ▇▇▇ ▇▇▇▇▇▇’▇ liability for such
Subcontractor Agreement shall be eliminated for that Subcontractor.
Article
IV
REPRESENTATIONS
AND WARRANTIES
OF
NEWMARK AND THE NEWMARK MEMBER
Newmark
and the Newmark Member hereby, jointly and severally, represent and warrant
to
the Company and the ▇▇▇▇-▇▇▇▇ Member, as of the date hereof or, if a
representation or warranty is made as of a specified date, as of such date,
the
following:
Section
4.01 Organization,
Authority and Qualification.
(a) Each
of
Newmark and the Newmark Member (i) is duly organized and validly existing
as a
limited liability company and is in good standing under the laws of the
jurisdiction of its organization and (ii) has all necessary power and authority
to enter into this Agreement and the Ancillary Agreements to which it is
a
party, to carry out its obligations hereunder and thereunder and to consummate
the transactions contemplated hereby and thereby. The execution and delivery
of
this Agreement and the Ancillary Agreements to which it is a party, the
performance of its obligations hereunder and thereunder and the consummation
by
it of the transactions contemplated hereby and thereby, have been duly
authorized by all requisite action on the part of Newmark and the Newmark
Member
and no other action by the Newmark or the Newmark Member is necessary to
authorize the transactions contemplated hereby or thereby or to consummate
such
transactions.
10
(b) Each
of
Newmark and the Newmark Member (i) has all necessary power and authority
to own,
operate or lease the properties and assets owned, operated or leased by such
company and to carry on its business as is currently conducted by such company
and (ii) is duly licensed or qualified to do business and is in good standing
in
each jurisdiction in which such qualification is necessary.
(c) This
Agreement has been, and upon its execution and the execution of the applicable
Ancillary Agreements shall be, duly executed and delivered by each of Newmark
and the Newmark Member, and (assuming due authorization, execution and delivery
by the other parties thereto) this Agreement constitutes, and upon its execution
each of the applicable Ancillary Agreements shall constitute, a legal, valid
and
binding obligation of each of Newmark and the Newmark Member, enforceable
against each of such party in accordance with their respective
terms.
Section
4.02 Compliance.
(a) No
Material Adverse Change.
No event
or circumstance has occurred or is threatened against Newmark or the Newmark
Member since January 1, 2006 that, individually or in the aggregate, has
had or
could reasonably be expected to have, a Material Adverse Effect on Newmark
or
the Newmark Member.
(b) Compliance
with Laws.
Except
as set forth on Section 4.02 of the Disclosure Schedule, each of Newmark
and the
Newmark Member, to the Knowledge of the Newmark Member (i) is not in violation
of any applicable Order or any applicable Law of any Governmental Authority,
which individually or in the aggregate, has had, will have, or reasonably
could
be expected to have, a Material Adverse Effect on the business of Newmark,
and
(ii) has not received written notice that any such violation is being or
may be
alleged.
(c) No
Breach.
The
execution, delivery and performance of this Agreement and any Ancillary
Agreements to which each of Newmark and the Newmark Member is a party, and
the
consummation of the transactions contemplated hereby and thereby, will not
(i)
violate any provision of its charter or bylaws or any other organizational
document or any agreement, guarantee or financial obligation that it is a
party
to or for which it is liable; (ii) except as set forth on Section 4.02 of
the
Disclosure Schedule, otherwise violate, conflict with or result in the breach
of
any of the terms of, result in a material modification of the effect of,
otherwise give any other contracting party the right to terminate, or constitute
(or with notice or lapse of time or both constitute) a default under any
agreement to which it is a party or by which it may be bound or subject;
(iv)
violate any Order of any Governmental Authority against, or binding upon,
it;
(v) violate or result in the revocation, suspension, non-renewal or limitation
of any Permit, the result of which would have a Material Adverse Effect on
Newmark; or (vi) to the Knowledge of the Newmark member, violate any
Law.
11
Section
4.03 Brokers
or Finder.
Each
of
the Newmark and the Newmark Member have not incurred any Liability for finder’s
brokerage, agent’s or advisory fees or commissions in connection with this
Agreement, the Ancillary Agreements or the transactions contemplated hereby
or
thereby.
Article
V
COVENANTS
Section
5.01 Excluded
Assets. Reference
is made to Sections 5.11(c) and (d) of the Original ▇▇▇▇ Agreement, a copy
of
which is attached hereto and made a part hereof as Exhibit D (the “Excluded
Assets Provisions”). The parties hereto affirmatively acknowledge the covenants
set forth in the Excluded Assets Provisions, and agree to execute and deliver,
or cause to be executed and delivered, such instruments, and to take such
action
as the ▇▇▇▇-▇▇▇▇ Member may reasonably request in order to comply with, and
effectuate the intent of, the Excluded Assets Provisions, including, without
in
any way limiting the covenants set forth in the Excluded Assets Provisions,
(a)
to use all reasonable efforts to identify Excluded Assets and to assign,
transfer and convey to the ▇▇▇▇ ▇▇▇▇▇▇▇, without consideration or other payment
therefore any Excluded Assets, and (b) to use all reasonable efforts to identify
Assets and to cause the ▇▇▇▇ ▇▇▇▇▇▇▇ to assign, transfer or convey to the
Company, if applicable, all Assets so identified.
The
covenants contained in Section 5.01 hereof shall survive the Closing until
May
9, 2007.
Section
5.02 Bonus
Payments.
M-C
Realty hereby acknowledges and agrees that it shall retain the obligation
to pay
any bonus payments to employees of ▇▇▇▇ Global who were employed as of December
27, 2006 for services rendered to ▇▇▇▇ Global in 2006. The amounts and
recipients of any such bonus payments shall be determined by M-C Realty in
its
sole discretion and, to the extent M-C Realty determines to make such bonus
payments, it agrees to make such payments by March 31, 2007.
12
Article
VI
INDEMNIFICATION
AND SURVIVAL
Section
6.01 Survival
of Representations and Warranties.
Each of the parties hereto has the right to rely fully upon the representations
and warranties of the other parties contained in this Agreement. The parties
agree that (i) the ▇▇▇▇ Closing Date Representations shall survive to the
extent
that the ▇▇▇▇ Representations and Warranties survive, as set forth in Section
8.01 of Article VIII of the Original ▇▇▇▇ Agreement, a copy of which is attached
hereto and made a part hereof as Exhibit E (the “▇▇▇▇ Indemnity Provisions),
(ii) the representations and warranties set forth in Section 3.03 shall survive
through May 9, 2009, and (iii) the Post May 9th
Representations, the other representations and warranties set forth in Article
III, and the representations and warranties set forth in Article IV shall
survive for a period of one year from the date hereof.
Section
6.02 Indemnification
for
Breach of the Representations and Warranties of the ▇▇▇▇-▇▇▇▇ Member and
Newmark. Subject
to the limitations set forth in this Article VI, each of the parties hereto
agrees to indemnify, defend and hold harmless any other party to which its
representations and warranties were directed (and its directors,
representatives, officers, employees, affiliates, successors and assigns)
from
and against all losses, damages, claims, costs and expenses, awards, judgments
and penalties (including reasonable attorneys’ fees and expenses) actually
suffered or incurred (“Losses”) based upon, arising out of or otherwise in
respect of, any inaccuracy in or any breach of any representation or warranty
contained in this Agreement, provided that (i) no party shall be entitled
to
such indemnification until such time as such party has incurred Losses in
excess
of $250,000, (ii) the ▇▇▇▇-▇▇▇▇ Member shall be limited in the aggregate
amount
payable to the Company and the Newmark Member for Losses claimed under this
indemnity relating to the ▇▇▇▇ Closing Date Representations to no more than
$4,000,000, (iii) the ▇▇▇▇-▇▇▇▇ Member shall be limited in the aggregate
amount
payable to the Company and the Newmark Member for Losses claimed under this
indemnity relating to the Post May 9th
Representations to no more than $1,500,000, (iv) except as otherwise provided
in
subparagraphs (ii) and (iii) above, each party shall be limited in the aggregate
amount payable to the other party for Losses claimed under this indemnity
to no
more than $1,500,000, and (v) no party shall be entitled to indemnification
herunder if the party knew of a breach of a representation and warranty at
the
time such representation and warranty was made. M-C Realty agrees to guaranty
any obligations of the ▇▇▇▇-▇▇▇▇ Member to indemnify, defend and hold harmless
Newmark, the Newmark Member or the Company from and against any Losses, in
accordance with, and subject to the limitations of, the provisions of this
Article VI.
Section
6.03 Notice
to Indemnifying Party.
If any party hereto (the “Indemnitee”) receives written notice of any third
party claim or potential claim or the commencement of any action or proceeding
of any third party that could give rise to an obligation on the part of another
party (the “Indemnifying Party”) pursuant to this Agreement, the Indemnitee
shall promptly give the Indemnifying Party notice thereof (the “Indemnification
Notice”); provided,
however,
that
the failure to give the Indemnification Notice promptly shall not impair
the
Indemnitee’s right to indemnification in respect of such claim, action or
proceeding unless, and only to the extent that, the lack of prompt notice
adversely affects the ability of the Indemnifying Party to defend against
or
diminish the Losses arising out of such claim, action or proceeding. The
Indemnification Notice shall contain factual information describing the asserted
claim in reasonable detail (to the extent known to the Indemnitee) and shall
include copies of any notice or other documents received from any third party
in
respect of any such asserted claim. The Indemnifying Party shall have the
right
to assume the defense of a third party claim or suit described in this Section
6.03 at its own cost and expense and with counsel of its own choosing; provided,
however, that the Indemnifying Party acknowledges in writing (at the time
it
elects to assume the defense of such claim or suit, which shall be not later
than thirty (30) days after the date of the Indemnification Notice) its
obligation under this Section 6.03 to indemnify the Indemnitee with respect
to
such claim or suit; the Indemnitee is kept fully informed of all substantive
developments and is furnished copies of all substantive papers; the Indemnitee
is given the opportunity, at its option, to participate at its own cost and
expense and with counsel of its own choosing in the defense of such claim
or
suit; and the Indemnifying Party diligently prosecutes the defense of such
claim
or suit. In the event that all of the conditions of the foregoing provision
are
not satisfied, the Indemnitee shall have the right, without impairing any
of its
rights to indemnification as provided herein, to assume and control the defense
of such claim or suit and to settle such claim or suit. The Indemnifying
Party
shall make no settlement of any such third party claim or suit without the
prior
written consent of the Indemnitee (which shall not be unreasonably withheld
or
delayed). No settlement of any such third party claim or suit shall be made
by
the Indemnitee if the Indemnifying Party shall have assumed the defense thereof
and shall be in substantial compliance with its obligations with respect
thereto
as set forth above in this Section 6.03. If the Indemnifying Party chooses
to
defend any claim, the Indemnitee shall make available to the Indemnifying
Party,
any books, records or other documents within its control that are necessary
or
appropriate for such defense. Notwithstanding the foregoing, the Indemnitee
shall have the right to employ separate counsel at the Indemnifying Party’s
expense and to control its own defense of such asserted liability if in the
written opinion of counsel to such Indemnitee a conflict or potential conflict
exists between the Indemnifying Party and such Indemnitee that would make
such
separate representation advisable.
13
Section
6.04 Remedies
for
Breach of the ▇▇▇▇ Closing Date Representations. Notwithstanding
anything contained in this Agreement to the contrary, except as set forth
in
Section 6.05, the parties hereto agree, that with respect to any Losses based
upon, arising out of or otherwise in respect of, any breach of the ▇▇▇▇ Closing
Date Representations to the extent they relate to ▇▇▇▇ Global and the ▇▇▇▇
Subsidiaries (the “▇▇▇▇ Losses”), the parties shall look solely to the ▇▇▇▇
▇▇▇▇▇▇▇ in accordance with the ▇▇▇▇ Indemnity Provisions, and neither ▇▇▇▇
Global, the ▇▇▇▇-▇▇▇▇ Member, M-C Realty or their respective Affiliates shall
have any liability for indemnification or recovery of ▇▇▇▇ Losses. Upon receipt
from the Newmark Member of a claim for ▇▇▇▇ Losses (the “▇▇▇▇ Notice”), the
▇▇▇▇-▇▇▇▇ Member shall, provided such claim is in excess of $250,000, take
such
action to seek indemnification and recovery from the ▇▇▇▇ ▇▇▇▇▇▇▇ for the
▇▇▇▇
Losses (a “▇▇▇▇ Claim”) in accordance with the terms of the ▇▇▇▇ Indemnity
Provisions. The prosecution of any ▇▇▇▇ Claim made by Newmark or the Newmark
Member shall be controlled by Newmark, provided that any and all communication
with the ▇▇▇▇ ▇▇▇▇▇▇▇ shall be through the ▇▇▇▇-▇▇▇▇ Member, and provided
that
the Company shall pay all costs and expenses of counsel in connection with
a
▇▇▇▇ Claim, which counsel shall be approved by the ▇▇▇▇-▇▇▇▇ Member, such
approval not to be unreasonably withheld or delayed. Notwithstanding anything
contained herein or the ▇▇▇▇ Indemnity Provisions to the contrary, the Members
and the Company shall be limited in the aggregate amount payable to it for
▇▇▇▇
Losses claimed under this Section 6.04 to no more than $4,000,000, which
amount
shall be reduced proportionately by amounts payable to the ▇▇▇▇-▇▇▇▇ Member
or
its Affiliates in respect of Losses based upon, arising out of or otherwise
in
respect of, any breaches of the ▇▇▇▇ Closing Date Representations to the
extent
they do
not
relate
to ▇▇▇▇ Global and the ▇▇▇▇ Subsidiaries (the “Non-▇▇▇▇ Losses”); provided,
however, subject to the provisions of Section 6.05, any such reductions shall
not reduce the aggregate amount payable to the Company for ▇▇▇▇ Losses claimed
under this Section 6.04 to less than $1,500,000; provided, further, however,
no
party shall be entitled to indemnification herunder if the party knew of
a
breach of a representation and warranty at the time such representation and
warranty was made. Newmark shall deliver to the ▇▇▇▇-▇▇▇▇ Member the ▇▇▇▇
Notice
with respect to ▇▇▇▇ Losses or any third party claim or potential claim or
the
commencement of any action or proceeding of any third party that could give
rise
to an obligation of the ▇▇▇▇-▇▇▇▇ Member to commence a ▇▇▇▇ Claim. The ▇▇▇▇
Notice shall contain factual information describing the asserted breach of
the
▇▇▇▇ Closing Date Representations, as well as any claim in reasonable detail
(to
the extent known to the Newmark Member), and shall include copies of any
relevant information, notices or other documents received from any third
party
in respect of any such asserted claim. Newmark and the Newmark Member also
shall
provide to the ▇▇▇▇-▇▇▇▇ Member such additional information as shall be
reasonably requested by the ▇▇▇▇-▇▇▇▇ Member from time to time in order for
the
▇▇▇▇-▇▇▇▇ Member to communicate with the ▇▇▇▇ ▇▇▇▇▇▇▇. Any recoveries from
the
▇▇▇▇ ▇▇▇▇▇▇▇ with respect to a ▇▇▇▇ Claim shall be, subject to the terms
of this
Section 6.04, paid to the Company in accordance with and subject to the terms
of
the ▇▇▇▇ Indemnity Provisions, as follows: (i) any cash amounts recovered
from
the ▇▇▇▇ ▇▇▇▇▇▇▇ by the ▇▇▇▇-▇▇▇▇ Member in connection with a ▇▇▇▇ Claim
shall
be paid to the Company, provided that any such amounts shall be paid in amounts
proportionate with cash amounts recovered from the ▇▇▇▇ Seller by the ▇▇▇▇-▇▇▇▇
Member in connection with any Non-▇▇▇▇ Losses, (ii) the amount of any offset
against any payments to the ▇▇▇▇ ▇▇▇▇▇▇▇ pursuant to the earnout provisions
set
forth in Exhibit D of the Original ▇▇▇▇ Agreement retained by the ▇▇▇▇-▇▇▇▇
Member in full or partial satisfaction of a ▇▇▇▇ Claim shall be paid in cash
to
the Company, or (iii) the surrender and cancellation of OP Units held by
the
▇▇▇▇ ▇▇▇▇▇▇▇ in full or partial satisfaction of a ▇▇▇▇ Claim shall be paid
in
cash to the Company at a valuation of $44.50 per OP Unit. Each party shall
keep
the other parties fully informed of all substantive developments in respect
of
any ▇▇▇▇ Claim.
14
Section
6.05 Arbitration.
In the event that the Newmark Member delivers to the ▇▇▇▇-▇▇▇▇ Member a ▇▇▇▇
Notice, and the claim for ▇▇▇▇ Losses cannot be pursued or adjudicated, in
whole
or in part, due to the prior recovery from the ▇▇▇▇ ▇▇▇▇▇▇▇ of the maximum
aggregate amount recoverable under the ▇▇▇▇ Indemnity Provisions, then, during
the 30-day period following the delivery of the ▇▇▇▇ Notice (the “Negotiation
Period”), the parties shall meet to review the claim detailed in the ▇▇▇▇ Notice
and determine whether the ▇▇▇▇ ▇▇▇▇▇▇▇ would have been liable for such claim
and
for what amount, had the maximum aggregate amount recoverable under the ▇▇▇▇
Indemnity Provisions not been exhausted. If the parties do not reach an
agreement within such 30-day period as to what, if any, amount should be
allocated to the ▇▇▇▇ Losses set forth in the ▇▇▇▇ Notice, and paid to the
Newmark Member by the ▇▇▇▇-▇▇▇▇ Member, the Newmark Member may, during the
30-day period following the end of the Negotiation Period, submit the matter
to
JAMS for arbitration in New York City, to determine whether the ▇▇▇▇ ▇▇▇▇▇▇▇
would have been liable for the ▇▇▇▇ Losses set forth in the ▇▇▇▇ Notice and
for
what amount, and to determine a fair and equitable allocation among the amounts
received by the ▇▇▇▇-▇▇▇▇ Member for its Non-▇▇▇▇ Losses, the amounts that
the
Company would have received for the ▇▇▇▇ Losses had the ▇▇▇▇ Indemnity
Provisions not been exhausted, and the amounts, if any, that have already
been
received from the ▇▇▇▇ ▇▇▇▇▇▇▇ for Losses relating to the ▇▇▇▇ Closing Date
Representations. In the event that the arbitrator rules in favor of the Newmark
Member, the ▇▇▇▇-▇▇▇▇ Member shall pay to the Newmark Member, within 30 days
following such arbitrator’s decision, the amount, if any, determined by such
arbitrator; provided, however, that in no event shall such amount exceed
$1,500,000; and provided, further, however, that any amounts payable shall
also
be subject to the limitations set forth in Section 6.02 and Section 6.04.
All
fees, costs and expenses (including reasonable attorneys’ fees and the costs of
the arbitrator(s)) incurred in connection with such arbitration, shall be
borne
by the Company.
15
Article
VII
CONDITIONS
TO CLOSING
The
obligation of each of each of the parties to enter into and complete the
Closing
is subject to the fulfillment on or prior to the Closing Date of the following
conditions, any one or more of which may be waived by each in its sole
discretion:
Section
7.01 Representations
and Covenants.
The representations and warranties of each of the parties contained in this
Agreement shall be true, complete and accurate in all material respects on
and
as of the Closing Date with the same force and effect as though made on and
as
of the Closing Date. Each shall have performed and complied in all material
respects with all covenants and agreements required by this Agreement to
be
performed or complied with by each on or prior to the Closing Date.
Section
7.02 Governmental
Permits and Approvals.
Any and all Permits necessary for the consummation of the transactions
contemplated hereby shall have been obtained.
Section
7.03 Legal
Proceedings.
No suit, action, claim, proceeding or investigation shall have been instituted
or threatened by or before any court or any foreign, federal, state, county
or
local government or any other governmental, regulatory or administrative
agency
or authority seeking to restrain, prohibit or invalidate this Agreement,
the
Ancillary Agreements or the transactions contemplated hereby or
thereby.
Section
7.04 Transaction
Documents.
Each of the Ancillary Documents shall have been executed and
delivered.
Section
7.05 Closing
Deliverable.
All of the deliverables set forth in Section 2.03 shall have been made to
the
appropriate party.
Section
7.06 Good
Standing Certificates.
Each party hereto not an individual shall have received from each other party
hereto certificates from the Secretary of State or other appropriate official
of
the respective jurisdictions of incorporation or formation, as the case may
be,
to the effect that each entity is in good standing in such jurisdiction as
of a
date within thirty (30) days of the Closing Date.
16
Section
7.07 Contributions.
The contributions by the parties set forth in Section 2.01 shall have been
made.
Article
VIII
MISCELLANEOUS
PROVISIONS
Section
8.01 Successors
and Assigns.
This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns. No party shall
have
the right to assign this Agreement or its rights hereunder without the consent
of the other parties.
Section
8.02 Further
Assurances.
Each party hereto agrees that it will, from time to time after the date of
this
Agreement, at its expense execute and deliver such other certificates, documents
and instruments and take such other action as may be reasonably requested
by the
other party to carry out the transactions contemplated hereby.
Section
8.03 Remedies
Limited; Non-Recourse.
The full and exclusive rights, powers and remedies of the parties hereto,
other
than such injunctive or other equitable remedies as may be available to such
party, for a breach of or a default under this Agreement (including without
limitation, a breach of or default under any of the representations, warranties,
covenants or agreements contained in this Agreement) shall be the
indemnification afforded under Article VI hereof.
Section
8.04 Waiver.
No
waiver, amendment or supplement of or to the Agreement shall be effective
unless
in writing and signed by all of the parties hereto or, in the case of a waiver,
by the party granting the waiver.
Section
8.05 Entire
Agreement; Exhibits and Schedules.
This Agreement and the Ancillary Agreements (together with the certificates,
agreements, Exhibits, Schedules, instruments and other documents referred
to
herein) constitutes the entire agreement between the parties with respect
to the
subject matter hereof and thereof and supersedes all prior agreements and
understandings, both written and oral, with respect to such subject matter.
The
Exhibits and Schedules to this Agreement are incorporated by reference herein
and are made a part hereof as if they were fully set forth herein.
Section
8.06 Governing
Law.
This Agreement shall be governed by and construed in accordance with the
laws of
New York applicable to agreements made and to be performed entirely within
such
state.
Section
8.07 Notices.
All notices and other communications hereunder shall be in writing and shall
be
deemed given if delivered personally, transmitted by telecopy or mailed by
registered or certified mail (return receipt requested) or by overnight delivery
to the parties at the addresses set forth on Section 8.07 of the Disclosure
Schedule (or at such other address for a party as may be specified by like
notice). All notices shall be deemed to have been given upon receipt if
delivered personally, by nationally recognized overnight courier or by telecopy,
or five days after mailing, if mailed. Refusal to accept delivery shall
constitute receipt for purposes of the foregoing.
17
Section
8.08 Headings.
The headings contained in this Agreement are for reference purposes only
and
shall not affect in any way the meaning or interpretation of this
Agreement.
Section
8.09 Counterparts.
This Agreement may be executed in multiple counterparts, all of which shall
be
considered one and the same agreement, and shall become effective when one
or
more counterparts have been signed by each of the parties and delivered to
the
other party, it being understood that all parties need not sign the same
counterpart.
Section
8.10 Severability.
The invalidity of any term or terms of this Agreement shall not affect any
other
term of this Agreement, which shall remain in full force and
effect.
[Remainder
of page intentionally left blank]
18
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date
first
above written.
NKFGMS
Owners, LLC
By:
/s/ ▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇
THE
▇▇▇▇
CONSTRUCTION SERVICES COMPANY, LLC
|
By:
|
The
▇▇▇▇ Real Estate Service Company, L.L.C., sole
member
|
|
By:
|
▇▇▇▇-▇▇▇▇
Services, Inc., sole member
|
By:
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇.
▇▇▇▇▇
President
and Chief
Executive Officer
▇▇▇▇-▇▇▇▇
REALTY, L.P.
By:
▇▇▇▇-▇▇▇▇ Realty Corporation, its general partner
By:
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President and Chief Executive Officer
NKFFM
Limited Liability Company
By:
/s/ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
Manager
NEWMARK
& COMPANY REAL ESTATE, INC.
d/b/a
NEWMARK ▇▇▇▇▇▇ ▇▇▇▇▇
By:
/s/ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇
Manager
/s/
▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇
/s/
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇
[Signature
Page to the Membership Interest Purchase and Contribution
Agreement]
19
Exhibits:
|
Exhibit
A
|
▇▇▇▇▇▇
Certificate
|
|
Exhibit
B
|
Assignment
of the ▇▇▇▇ Global Membership Interest
|
|
Exhibit
C
|
▇▇▇▇
Representations and Warranties
|
|
Exhibit
D
|
Excluded
Assets Provisions
|
|
Exhibit
E
|
▇▇▇▇
Indemnity Provisions
|
Disclosure
Schedule:
|
Section
3.02(a)
|
▇▇▇▇
Subsidiaries
|
|
Section
3.03(c)
|
Encumbrances
|
|
Section
3.04
|
Financial
Statements
|
|
Section
3.05
|
No
Material Adverse Change
|
|
Section
3.06
|
Compliance
with Laws
|
|
Section
3.07
|
No
Breach
|
|
Section
3.08
|
Claims
and Proceedings
|
|
Section
3.09
|
Insurance
|
|
Section
3.11
|
Contracts
|
|
Section
4.02
|
No
Breach
|
|
Section
8.07
|
Notices
|
20
DISCLOSURE
SCHEDULE
21
SECTION
3.02(a)
▇▇▇▇
SUBSIDIARIES
|
Name
of Entity
|
Place
of Formation
|
Ownership
of Entity
|
|
The
▇▇▇▇ Puerto Rico Company, Inc.
|
Commonwealth
of Puerto Rico
|
Gale
Global Facility Services, L.L.C. (“GGFS”)
|
|
▇▇▇▇
Global Facility Services Limited
|
United
Kingdom
|
GGFS
|
|
▇▇▇▇
Global Facility Services GmbH
|
Germany
|
▇▇▇▇
Global Facility Services Limited
|
|
GFS
Landscaping Services, LLC
|
State
of Delaware
|
GGFS
|
|
GFS
Janitorial Servicves, LLC
|
State
of Delaware
|
GGFS
|
|
GFS
Mechanical Services, LLC
|
State
of Delaware
|
GGFS
|
|
GFS
Self-Performing Services, LLC
|
State
of Delaware
|
GGFS
|
22
SECTION
3.03(c)
None.
23
SECTION
3.04
See
attached (1) The ▇▇▇▇ Company, L.L.C. Consolidated Financial Statements Year
Ended December 31, 2003, (2) The ▇▇▇▇ Company, L.L.C. Consolidated Financial
Statements Year Ended December 31, 2004, (3) Preliminary Unaudited Consolidating
Pro Forma Balance Sheets 2005 and Preliminary Unaudited Consolidating Pro
Forma
Income Statements 2005, and (4) Preliminary Unaudited Summary Income Statement
for the period beginning January 1, 2006 and ending June 30, 2006.
24
SECTION
3.05
M-C
Realty has withdrawn the aggregate amount of $217,859.04. for expenses advanced
in connection with the build-out of the office space of Newmark ▇▇▇▇▇▇ ▇▇▇▇▇
Global Management Services, LLC at ▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇.
25
SECTION
3.06
None.
26
SECTION
3.07
The
parties acknowledge that no consent to the transfers and assignments
contemplated by this Agreement has been sought or received from the parties
to
those contracts listed on Section 3.11 of the Disclosure Schedule and that
such
lack of consent may constitute a default under said contracts and therefore
provide a right to terminate such contracts.
27
SECTION
3.08
None.
28
SECTION
3.09
Schedule
of Insurance as of December 26, 2006 (unless otherwise
noted)
THE
▇▇▇▇ DIVISION OF ▇▇▇▇-▇▇▇▇
The
policies below include ▇▇▇▇ Global Facility Services, LLC and other entities
as
named insureds.
GENERAL
LIABILITY POLICY
National
Fire Insurance Company of Hartford
Policy
Number: Binder B06063045247
The
premium for this policy is subject to audit based upon actual exposures during
the policy period.
WORKERS
COMPENSATION
Insurer:
Continental Casualty Company
Policy
Numbers: California:
2084941146
All
other
states: 2084911695
OHIO
WORKERS COMPENSATION POLICY
State
of
Ohio Bureau of Workers Compensation
Policy
Number: 1387767
AUTOMOBILE
POLICY
Insurer:
Continental Casualty Company
Policy
Number: C 2089117463
EXCESS
LIABILITY POLICIES
Insurer:
Continental Casualty Company
Policy
Number: L2090703566
Insurer:
North River Insurance Company (▇▇▇▇ & ▇▇▇▇▇▇▇)
Policy
Number: TBD
Insurer:
American Guarantee and Liability Insurance Company
Policy
Number: AEC 9138540 00
PROFESSIONAL
AND POLLUTION LIABILITY POLICY
Insurer:
Greenwich Insurance Company
Policy
Number: PEC0020574
MISCELLANEOUS
ERRORS AND OMISSIONS LIABILITY POLICY
Insurer:
Westchester Surplus Lines Insurance Company
Policy
Number: EON G23613001 001
29
EUROPEAN
OPERATIONS
Insurer:
The Insurance Company of the State of Pennsylvania
Policy
Number: WR10004417
MISCELLANEOUS
PROFESSIONAL LIABILITY POLICY (extended reporting
period)
Insurance
Company: Executive
Risk Indemnity Inc.
Policy
Number: 6803-4272
(tail coverage)
DIRECTORS
& OFFICERS / EMPLOYMENT PRACTICES LIABILITY POLICY (extended reporting
period)
Insurance
Company: Federal
Insurance Company
Policy
Number: 6802-2239
(tail coverage)
FIDUCIARY
LIABILITY POLICY (extended reporting period)
Insurance
Company: Federal
Insurance Company
Policy
Number: 8142-3490
(tail coverage)
EMPLOYED
LAWYERS PROFESSIONAL LIABILITY POLICY (extended reporting
period)
Insurance
Company: Executive
Risk Specialty Insurance Company
Policy
Number: 6802-1679
(tail coverage)
PROPERTY,
EMPLOYMENT PRACTICES LIABILITY, FIDELITY, AND DIRECTORS AND OFFICERS LIAIBLITY
COVERAGES ARE PROVIDED UNDER ▇▇▇▇-▇▇▇▇’▇ INSURANCE
PROGRAM
There
is
also a policy arranged by the Simon Malls for ▇▇▇▇ GFS.
Insurance
Claims
|
Claimant
|
Payment
|
Reserve
|
|
Liability:
|
||
|
▇▇▇
|
$3,609
(expenses)
|
$5,849
|
|
Sun
Microsystems
|
$47,876
(expenses)
|
$150,000
|
|
▇▇▇▇▇▇▇
|
$0
|
$160,000
|
|
▇▇▇▇
|
$12,252
(expenses)
|
$52,403
|
|
Property:
|
||
|
PAETEC
Communications
|
$0
|
$71,000
|
|
Workers
Compensation:
|
||
|
▇▇▇▇▇▇▇-▇▇▇▇▇
(carpal tunnel)
|
$10,526
|
30
SECTION
3.11
Contracts
of the ▇▇▇▇ Global Business:
| 1. |
AT&T
|
| 2. |
New
York Life
|
| 3. |
Toys
R Us
|
| 4. |
Panasonic
North America
|
| 5. |
BASF
|
| 6. |
BNP
Paribas
|
| 7. |
Principal
Global Investors
|
| 8. |
Cendant
|
| 9. |
Unilever
|
| 10. |
UPS
|
| 11. |
ISI
|
| 12. |
Villa
Contracting
|
| 13. |
Simon
|
31
DISCLOSURE
SCHEDULE
OF
NEWMARK
AND NEWMARK MEMBER
TO
CONTRIBUTION
AGREEMENT
Section
4.02:
Section
4.02(b): Compliance with Laws.
None.
Section
4.02(c): No Breach.
None.
32
SECTION
8.07
NOTICES
If
to NKFGMS Owners, LLC:
c/o
Gale
GFS
▇▇
▇▇▇▇▇▇
▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇
▇▇▇▇▇▇
President
With
a
copy to:
Newmark
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇
▇▇▇▇▇▇,
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
General
Counsel
If
to The ▇▇▇▇ Construction Services Company, L.L.C.:
If
mailed
to:
c/o
▇▇▇▇-▇▇▇▇ Realty Corporation
▇.▇.
▇▇▇
▇▇▇▇
▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
If
sent
via overnight courier service:
c/o
▇▇▇▇-▇▇▇▇ Realty Corporation
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
With
two
(2) separate copies of the
Notice
sent to the attention of:
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
President
and Chief Executive Officer
33
And
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇
▇.
▇▇▇▇▇▇
Executive
Vice President and General Counsel
With
a
copy (which shall not constitute notice) to:
Seyfarth
▇▇▇▇ LLP
1270
Avenue of the Americas, ▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Attention:
▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
If
to ▇▇▇▇-▇▇▇▇ Realty, L.P.:
If
mailed
to:
c/o
▇▇▇▇-▇▇▇▇ Realty Corporation
▇.▇.
▇▇▇
▇▇▇▇
▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
If
sent
via overnight courier service:
c/o
▇▇▇▇-▇▇▇▇ Realty Corporation
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
With
two
(2) separate copies of the
Notice
sent to the attention of:
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
President
and Chief Executive Officer
And
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇
▇.
▇▇▇▇▇▇
Executive
Vice President and General Counsel
34
With
a
copy (which shall not constitute notice) to:
Seyfarth
▇▇▇▇ LLP
1270
Avenue of the Americas, ▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Attention:
▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
If
to NKFFM Limited Liability Company :
c/o
Newmark ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇
▇▇▇▇▇▇,
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
With
two
(2) separate copies of the
Notice
sent to the attention of:
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇▇
▇▇▇▇▇
Chief Operating Officer
And
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
General
Counsel
35
If
to Newmark & Company Real Estate, Inc. (d/b/a Newmark ▇▇▇▇▇▇
▇▇▇▇▇):
c/o
Newmark ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇
▇▇▇▇▇▇,
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
With
two
(2) separate copies of the
Notice
sent to the attention of:
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇▇
▇▇▇▇▇
Chief
Operating Officer
And
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
General
Counsel
36
SCHEDULE
3.09
THE
▇▇▇▇ DIVISION OF ▇▇▇▇-▇▇▇▇
Schedule
of Insurance as of December 26, 2006 (unless otherwise noted)
The
policies below include ▇▇▇▇ Global Facility Services, LLC and other entities
as
named insureds.
GENERAL
LIABILITY POLICY
National
Fire Insurance Company of Hartford
Policy
Number: Binder B06063045247
The
premium for this policy is subject to audit based upon actual exposures during
the policy period.
WORKERS
COMPENSATION
Insurer:
Continental Casualty Company
Policy
Numbers: California:
2084941146
All
other
states: 2084911695
OHIO
WORKERS COMPENSATION POLICY
State
of
Ohio Bureau of Workers Compensation
Policy
Number: 1387767
AUTOMOBILE
POLICY
Insurer:
Continental Casualty Company
Policy
Number: C 2089117463
EXCESS
LIABILITY POLICIES
Insurer:
Continental Casualty Company
Policy
Number: L2090703566
Insurer:
North River Insurance Company (▇▇▇▇ & ▇▇▇▇▇▇▇)
Policy
Number: TBD
Insurer:
American Guarantee and Liability Insurance Company
Policy
Number: AEC 9138540 00
PROFESSIONAL
AND POLLUTION LIABILITY POLICY
Insurer:
Greenwich Insurance Company
Policy
Number: PEC0020574
MISCELLANEOUS
ERRORS AND OMISSIONS LIABILITY POLICY
Insurer:
Westchester Surplus Lines Insurance Company
Policy
Number: EON G23613001 001
37