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EXHIBIT 2.6
AGREEMENT FOR CONTRIBUTION OF INTERESTS
IN
B&B PARK AVENUE L.P.
BY AND AMONG
THE MENDIK COMPANY, L.P.,
MENDIK RELP CORPORATION
AND
THE PARTNERS OF B&B PARK AVENUE L.P.
IN RELIANCE UPON CERTAIN EXEMPTIONS FROM REGISTRATION, THE UNITS TO BE ISSUED
HEREUNDER WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. ACCORDINGLY, NO UNITS MAY
BE SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED UNLESS SUBSEQUENTLY
REGISTERED UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR
UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE, AND UNLESS THE OTHER
TRANSFER RESTRICTIONS ON SUCH UNITS HAVE BEEN SATISFIED. CONTRIBUTORS SHOULD BE
AWARE THAT THEY WILL BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THEIR OWNERSHIP
OF UNITS FOR AN INDEFINITE PERIOD OF TIME.
IN MAKING AN INVESTMENT DECISION CONTRIBUTORS MUST RELY ON THEIR OWN EXAMINATION
OF THE PERSON OR ENTITY CREATING THE SECURITIES AND THE TERMS OF THE OFFERING,
INCLUDING THE MERITS AND RISKS INVOLVED. THESE SECURITIES HAVE NOT BEEN
RECOMMENDED BY ANY FEDERAL OR STATE SECURITIES COMMISSION OR REGULATORY
AUTHORITY. FURTHERMORE, THE FOREGOING AUTHORITIES HAVE NOT CONFIRMED THE
ACCURACY OR DETERMINED THE ADEQUACY OF THIS DOCUMENT. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
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TABLE OF CONTENTS
Page
1.Contributions.............................................................. 2
2.Consideration; Distributions Prior to Closing.............................. 2
3.Acceptance of Contributions................................................ 3
4.Closing Time and Place..................................................... 3
5.Representations and Warranties of Operating Partnership.................... 3
5.1 Organization, Power and Authority, and Qualification.............. 3
5.2 Authority Relative to this Agreement.............................. 3
5.3 Binding Obligation................................................ 4
5.4 Insolvency........................................................ 4
5.5 Brokers........................................................... 4
5.6 Valid Consideration............................................... 4
6.Representations, Warranties and Agreements of Contributors................. 4
6.1 Title; Authority to Assign........................................ 4
6.2 No Breach of Partnership Agreement................................ 5
6.3 Insolvency........................................................ 5
6.4 Litigation........................................................ 5
6.5 Binding Obligation, etc........................................... 5
6.6 Brokers........................................................... 5
6.7 Status as a United States Person.................................. 5
6.8 Indemnification................................................... 6
7.Conditions to Completion................................................... 6
7.1 Representations, Warranties and Covenants......................... 6
7.2 Consents.......................................................... 6
7.3 No Order or Injunction............................................ 6
7.4 Instruments of Conveyance............................................. 6
8.The Closing................................................................ 7
8.1 Contributors' and General Partner's Closing Documents............. 7
8.2 Operating Partnership's Closing Documents......................... 7
9.Closing Costs.............................................................. 7
10.Operation in the Ordinary Course.......................................... 8
(i)
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11.General Provisions........................................................ 8
11.1 Survival of Representations and Warranties....................... 8
11.2 Notices.......................................................... 8
11.3 Governing Law.................................................... 8
11.4 Headings......................................................... 8
11.5 Benefit and Assignment........................................... 8
11.6 Severability..................................................... 9
11.7 Entire Agreement; Amendment...................................... 9
11.8 No Waiver........................................................ 9
11.9 Consent and Power of Attorney.................................... 9
(ii)
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AGREEMENT FOR CONTRIBUTION OF INTERESTS
[TWO PARK]
THIS AGREEMENT for the Contribution of Interests (this "Agreement") is
made and entered into as of April 15, 1997, by and among The Mendik Company,
L.P. ("Operating Partnership"), a Delaware limited partnership, whose general
partner as of the date hereof is The Mendik Company, Inc., a Maryland
corporation, each of the parties listed on Exhibit A annexed hereto agreeing to
become a party to this Agreement (collectively referred to herein as
"Contributors") and Mendik RELP Corporation, a New York corporation (in its
capacity as a general partner of the Partnership (hereinafter defined), the
"General Partner").
WHEREAS, it is desired to consolidate (the "Consolidation") the assets
of Vornado Realty Trust, a Maryland real estate investment trust (the "REIT"),
and interests in seven general or limited partnerships or limited liability
companies of which the General Partner or an affiliate is a general partner or
managing member, together with the assets of Mendik Realty Company, Inc. and
Mendik Management Company, Inc., each a New York corporation and affiliate of
the General Partner, with and into Operating Partnership.
WHEREAS, upon completion of and after the Consolidation, the REIT will
become and be the managing general partner of the Operating Partnership;
WHEREAS, Contributors are owners of interests (the "Contributed
Interests") in B&B Park Avenue L.P., a New York limited partnership (the
"Partnership"), which is a general partner in Two Park Company, a New York
general partnership ("Two Park"), which owns land and improvements (the
"Property") known as ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇;
WHEREAS, in connection with the consummation of the Consolidation, the
parties hereto desire that Operating Partnership and, if designated by Operating
Partnership, one or more special purpose subsidiary partnerships or limited
liability companies of Operating Partnership or one or more other entities
controlled by Operating Partnership (each a "Designated Subsidiary") acquire all
of the interests in the Partnership through the contribution of such interests
to Operating Partnership and/or one or more Designated Subsidiaries upon the
terms and conditions provided herein;
WHEREAS, it is desired to simultaneously acquire all of the interests
in the Partnership owned by a major partner and its affiliates (together, the
"Major Partner") pursuant to an Agreement (the "Major Partner Agreement")
entered into between Major Partner and F/W Mendik REIT L.L.C., which Major
Partner Agreement may be assigned to Operating Partnership and/or a Designated
Subsidiary prior to the Closing (as hereinafter defined);
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All of the foregoing is collectively referred to as the "Transaction".
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises and covenants set forth herein, Operating Partnership, Contributors and
the General Partner hereby agree as follows:
1. CONTRIBUTIONS. Upon the Closing (hereinafter defined), and
subject to the satisfaction or waiver by Operating Partnership of the conditions
set forth in Section 7 of this Agreement, Contributors shall contribute, convey
and assign to Operating Partnership (and/or Designated Subsidiary) and Operating
Partnership (and/or Designated Subsidiary) shall acquire from Contributors all
of Contributors' right, title and interest in the Contributed Interests (the
"Contributions"), including, without limitation, all of Contributors' interest
in the profits, losses, property and capital of the Partnership allocable to the
Contributed Interests, upon the terms and conditions set forth in this
Agreement.
2. CONSIDERATION; DISTRIBUTIONS PRIOR TO CLOSING.
(a) In full consideration for the contribution of the
Contributed Interests, Operating Partnership shall deliver to Contributors at
the Closing 423 units of limited partnership interest ("Units") in Operating
Partnership, such Units being of the classes and allocated among the
Contributors as set forth on Exhibit A.
(b) On the date of the Closing (the "Closing Date"), the
General Partner shall cause the Partnership to satisfy any outstanding
liabilities and to distribute any remaining cash to its partners.
(c) The Operating Partnership shall cause any amounts
received by the Partnership after the Closing Date relating to the period
through the Closing Date with respect to refunds of real estate taxes paid by
Two Park (less any costs incurred by Two Park, the Partnership or the Operating
Partnership in obtaining such refunds and less any portion of such refunds
required or, in the REIT's reasonable determination, estimated to be paid to
tenants) to be paid to the General Partner, as agent for the Contributors and
certain other parties, not later than 10 days after the end of the month in
which such amounts are collected, and the General Partner shall promptly
distribute such amounts to the Contributors.
(d) If the Operating Partnership (and/or Designated
Subsidiary) acquires any interests in M/H Two Park Associates or Two Park, which
causes the Contributors to owe any tax payable as a result of the New York Real
Estate Transfer Tax imposed by Article 31 of the Tax Law, the New York City Real
Property Transfer Tax imposed by Chapter 46 of Title 11 of the Administrative
Code of the City of New York, or any other similar tax payable by reason of the
contribution of the Contributed Interests (collectively, the "Conveyance
Taxes"), the Operating Partnership agrees to pay and shall be solely responsible
for such Conveyance Taxes and for any Conveyance Taxes payable with respect to
the interests in the Partnership acquired from the Major Partner; provided,
however,
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that the Contributors shall be solely responsible for and shall indemnify,
defend and hold harmless Operating Partnership and the Partnership from and
against all claims, liabilities, costs and expenses (including attorney's fees)
incurred by Operating Partnership and the Partnership by reason of the failure
of the Contributor to pay any Conveyance Taxes that would not have been imposed
but for a Contributor's failure to satisfy any holding period or continuity
requirements for qualifying for a reduced rate of Conveyance Taxes, including
the holding period requirements with respect to certain transfers to a REIT
imposed in connection with the New York Real Estate Transfer Tax imposed by
Article 31 of the Tax Law and the New York City Real Property Transfer Tax
imposed by Chapter 46 of Title 11 of the Administrative Code of the City of New
York.
3. ACCEPTANCE OF CONTRIBUTIONS. Subject to satisfaction of the
conditions listed or referred to in Section 7, Operating Partnership hereby
agrees that at the Closing it shall accept or, at its election, cause a
Designated Subsidiary to accept all or part of, the Contributions and shall
assume any and all rights, obligations and responsibilities of Contributors as
owners of the Contributed Interests that arise subsequent to the Closing Date.
4. CLOSING TIME AND PLACE. Unless another date or place is agreed
to by the parties, the closing of the Contributions (the "Closing") shall take
place contemporaneously with the closing of the Consolidation at the offices of
Proskauer ▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
or such other place and time as Operating Partnership and the General Partner
shall agree, upon the satisfaction or waiver of all conditions to the Closing
set forth in Section 7 hereof.
5. REPRESENTATIONS AND WARRANTIES OF OPERATING PARTNERSHIP.
Operating Partnership hereby represents and warrants to Contributors as follows,
which representations and warranties shall be true and correct on the Closing
Date:
5.1 ORGANIZATION, POWER AND AUTHORITY, AND QUALIFICATION.
Operating Partnership is a limited partnership duly organized, validly existing
and in good standing under the laws of the State of Delaware. The REIT is a real
estate investment trust duly organized, validly existing and in good standing
under the laws of the State of Maryland. Each of Operating Partnership and the
REIT has the requisite power and authority to carry on its respective business
as it is now being conducted. Each of Operating Partnership and the REIT is
qualified to do business and is in good standing in each jurisdiction in which
the character of its property owned or leased or the nature of its activities
makes such qualification necessary, except where the failure to be so qualified
and in good standing would not have a material adverse effect on the business or
financial condition of Operating Partnership or the REIT, as the case may be.
5.2 AUTHORITY RELATIVE TO THIS AGREEMENT. Operating Partnership
has taken all action necessary to authorize the execution, delivery and
performance of this Agreement by Operating Partnership and no other proceedings
on the part of Operating Partnership are
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necessary to authorize the execution and delivery of this Agreement and the
consummation of the Contributions.
None of the execution and delivery of this Agreement by Operating
Partnership, the consummation by Operating Partnership of the Contributions or
compliance by Operating Partnership with any of the provisions hereof shall (i)
conflict with or result in any breach of any provisions of the partnership
agreement of Operating Partnership; (ii) result in a violation or breach of, or
constitute (with or without due notice or lapse of time or both) a default (or
give rise to any right of termination, cancellation or acceleration) under any
of the terms, conditions or provisions of any note, bond, mortgage, indenture,
lease, license, contract, agreement or other instrument or obligation to which
Operating Partnership is a party or by which it or any of its properties or
assets may be bound; or (iii) violate any order, writ, injunction, decree,
statute, rule or regulation applicable to Operating Partnership; except in the
case of (ii) or (iii) for violations, breaches, or defaults (A) that would not
in the aggregate have a material adverse effect on the business or financial
condition of Operating Partnership or the REIT, and that shall not impair the
effectiveness of the Contributions contemplated hereby, or (B) for which waivers
or consents have been or shall be obtained prior to the Closing Date.
5.3 BINDING OBLIGATION. This Agreement has been duly and validly
executed and delivered by Operating Partnership and constitutes a valid and
binding agreement of Operating Partnership, enforceable against Operating
Partnership in accordance with its terms, except that such enforcement may be
subject to bankruptcy, conservatorship, receivership, insolvency, moratorium, or
similar laws affecting creditors' rights generally or the rights of creditors of
limited partnerships and to general principles of equity.
5.4 INSOLVENCY. There are no attachments, executions or
assignments for the benefit of creditors, or voluntary or involuntary
proceedings in bankruptcy, or under any other debtor relief laws, contemplated
by or pending or threatened against Operating Partnership.
5.5 BROKERS. Neither Operating Partnership nor the REIT has
employed or dealt with any broker or finder, or incurred any liability therefor,
in connection with the Contributions.
5.6 VALID CONSIDERATION. The Units, when issued in accordance with
this Agreement and the Partnership Agreement of Operating Partnership, will be
duly and validly issued, and the issuance thereof will not be subject to
preemptive or other similar rights.
6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF CONTRIBUTORS.
Each Contributor, in his, her or its capacity as a partner of the Partnership,
hereby represents and warrants to and agrees with Operating Partnership with
respect to his, her or its Contributed Interests as follows, which
representations and warranties shall also be true and correct on the Closing
Date:
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6.1 TITLE; AUTHORITY TO ASSIGN. Contributor (i) owns good and
marketable, legal and beneficial (except for holders of beneficial interests in
the amounts payable with respect to such Contributed Interests who have no other
rights with respect to those interests) title in and to his, her or its
Contributed Interests which as of the Closing Date will be held free of liens,
encumbrances, judgments, adverse interests, pledges or security interests, other
than pledges of partnership interests to the Partnership or the other partners
to secure a partner's obligations to meet capital calls or other obligations as
set forth in the partnership agreement of the Partnership (as to which no
amounts are outstanding and no amounts will be outstanding as of the Closing
Date), (ii) holds the entire right, title and interest in and to his, her or its
Contributed Interests, and (iii) has the full right, power, capacity and
authority to validly contribute and convey his, her or its Contributed Interests
pursuant to this Agreement.
6.2 NO BREACH OF PARTNERSHIP AGREEMENT. None of the execution and
delivery of this Agreement by Contributor, the consummation by Contributor of
the Contribution or compliance by Contributor with any of the provisions hereof
shall as of the Closing Date conflict with or result in any breach of any
provisions of the Partnership Agreement of the Partnership or any other
agreement to which Contributor is a party.
6.3 INSOLVENCY. There are no attachments, executions or
assignments for the benefit of creditors, or voluntary or involuntary
proceedings in bankruptcy, or under any other debtor relief laws, contemplated
by or pending or, to the knowledge of Contributor, threatened against
Contributor.
6.4 LITIGATION. Contributor has no knowledge of any actual or
pending litigation or proceeding by any organization, person, individual or
governmental agency against Contributor with respect to or against or
potentially affecting his, her or its Contributed Interests.
6.5 BINDING OBLIGATION, ETC. This Agreement has been duly and
validly executed and delivered by Contributor to Operating Partnership and
constitutes a legal, valid and binding agreement of Contributor, enforceable
against Contributor in accordance with its terms, except as such enforcement may
be limited by bankruptcy, conservatorship, receivership, insolvency, moratorium
or similar laws affecting creditors' rights generally and to general principles
of equity.
6.6 BROKERS. Contributor has not employed or dealt with any broker
or finder, or incurred any liability therefor, in connection with the
Contribution.
6.7 STATUS AS A UNITED STATES PERSON. (i) Unless otherwise
indicated on the Partner Consent, Contributor certifies that Contributor is not
a foreign person within the meaning of Section 1445 of the Internal Revenue Code
("Section 1445"). To the extent that Contributor is not a foreign person within
the meaning of Section 1445, (1) Contributor's U.S. taxpayer identification
number that has previously been provided to the Partnership is accurate, (2)
Contributor's home address (in the case of an individual) or office address (in
the case of
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an entity) is that address indicated on Exhibit A of this Agreement and (3) if
Contributor subsequently becomes a foreign person within the meaning of Section
1445, Contributor shall notify Operating Partnership prior to the Closing.
(ii) If Contributor is or prior to the Closing becomes a
foreign person within the meaning of Section 1445, Operating Partnership shall,
and is authorized to, withhold ten percent (10%) of the amount realized (as such
term is defined in Section 1001 of the Internal Revenue Code) by Contributor in
connection with the Contribution, unless Operating Partnership shall receive
from Contributor a notice of nonrecognition transfer with respect to the
Contribution by Contributor (in a form to be provided by Operating Partnership).
6.8 INDEMNIFICATION. Contributor hereby agrees to indemnify and
hold harmless the Partnership, the REIT, Operating Partnership and the General
Partner and any of the employees, agents, officers, directors and affiliated
persons of the foregoing from any and all damages, losses, costs and expenses
(including reasonable attorneys' fees) which they, or any of them, may incur by
reason of a failure by Contributor to fulfill any of its obligations under this
Agreement or by reason of the breach by Contributor of any of the
representations and warranties contained herein. All representations, covenants
and agreements of Contributor set forth in this Agreement shall survive the
consummation of the Consolidation.
7. CONDITIONS TO COMPLETION. In addition to the conditions to
completion of the Consolidation set forth in the Memorandum, the obligations of
Operating Partnership to consummate the transactions contemplated by this
Agreement shall be subject to fulfillment (or waiver by Operating Partnership)
at or prior to the Closing of the following conditions:
7.1 REPRESENTATIONS, WARRANTIES AND COVENANTS. The
representations, warranties and covenants made by Contributors in this Agreement
or in any document delivered by any of them pursuant to this Agreement shall be
true and correct in all material respects when made and on and as of the Closing
as though such representations, warranties and covenants were made on and as of
such date.
7.2 CONSENTS. Any and all consents required by the Partnership
Agreement of the Partnership, and any certificates, agreements, contribution and
assumption instruments and other documents necessary or advisable to evidence
the conveyance of the Contributed Interests and the admission of Operating
Partnership (or Designated Subsidiary) into the Partnership by virtue of the
contribution of the Contributed Interests, shall have been obtained.
7.3 NO ORDER OR INJUNCTION. The consummation of the Contributions
shall not have been restrained, enjoined or prohibited by any order or
injunction of any court or governmental authority of competent jurisdiction.
7.4 INSTRUMENTS OF CONVEYANCE. The Contributors shall have
delivered the instruments evidencing conveyance of their interests referred to
in Section 8.1.
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8. THE CLOSING.
8.1 CONTRIBUTORS' AND GENERAL PARTNER'S CLOSING DOCUMENTS. At
Closing, each Contributor shall deliver (or cause to be delivered pursuant to
the Power of Attorney referred to in Section 11.9) or the General Partner shall
deliver the following (all of which shall be duly executed and acknowledged
where required):
(a) A written document of conveyance contributing to
Operating Partnership (and/or any Designated Subsidiary) title to Contributor's
Contributed Interests, free and clear of any adverse claim or interest;
(b) Such documents and certificates as Operating
Partnership reasonably may require to establish the authority of the parties
executing any documents in connection with the Contributions including, in the
case of any Contributor that is a corporation, partnership, limited liability
company or other similar entity (other than a trust or estate), an opinion of
counsel, reasonably satisfactory to the Operating Partnership, as to the due
execution and delivery of such documents;
(c) Such consents and instruments of admission as are
contemplated by Section 7.2 hereof; and
(d) Such other documents, instruments and certificates as
Operating Partnership and the General Partner, as agent for the Contributors,
reasonably agree are necessary or appropriate, including without limitation
recording and transfer forms and affidavits.
8.2 OPERATING PARTNERSHIP'S CLOSING DOCUMENTS. At Closing,
Operating Partnership shall deliver or cause to be delivered to the General
Partner, as agent for the Contributors, the following:
(a) The Units to be issued for the Contributed Interests;
and
(b) Copies of the executed Partnership Agreement of the
Operating Partnership and the Registration Rights Agreement and Unit Redemption
Agreement referred to in Section 11.09; and
(c) Such other documents and instruments as the General
Partner, as agent for the Contributors, and Operating Partnership agree are
necessary or appropriate, including without limitation recording and transfer
forms and affidavits.
9. CLOSING COSTS. Operating Partnership shall pay or provide for
the payment of all other costs associated with the closing of the contributions
of the Contributed Interests pursuant to this Agreement, as described in and
subject to the terms of the Memorandum.
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10. OPERATION IN THE ORDINARY COURSE. The General Partner shall
use reasonable efforts to operate the Partnership, Two Park and the Property in
the ordinary course of business between the date hereof and the closing of the
Consolidation, including making any necessary capital expenditures and leasing
expenditures consistent with past practices to maintain the quality and value of
the Property.
11. GENERAL PROVISIONS.
11.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. It is the express
intention and agreement of the parties hereto that the representations and
warranties of the parties set forth in this Agreement shall survive the
consummation of the Contributions and the Closing.
11.2 NOTICES. All notices, demands, requests or other
communications that may be or are required to be given or made by any party to
the other parties pursuant to this Agreement shall be in writing and shall be
hand delivered or transmitted by certified mail, express overnight mail or
delivery service, telegram, telex or facsimile transmission to the parties at
the addresses specified in Exhibit A or such other address as the addressee may
indicate by written notice to the other party.
Each notice, demand, request or communication that is given or made in
the manner described above shall be deemed sufficiently given or made for all
purposes at such time as it is delivered to the addressee (with the delivery
receipt, the affidavit of messenger or (with respect to a telex) the answer back
being deemed conclusive but not exclusive evidence of such delivery) or at such
time as delivery is refused by the addressee upon presentation.
11.3 GOVERNING LAW. This Agreement, the rights and obligations of
the parties hereto and any claims or disputes relating to such rights and
obligations shall be governed by and construed under the laws of the State of
New York.
11.4 HEADINGS. Section and subsection headings contained in this
Agreement are inserted for convenience of reference only, shall not be deemed to
be a part of this Agreement for any purpose, and shall not in any way define or
affect the meaning, construction or scope of any of the provisions hereof.
11.5 BENEFIT AND ASSIGNMENT. No Contributor shall assign this
Agreement, in whole or in part, whether by operation of law or otherwise,
without the prior written consent of Operating Partnership. Any purported
assignment contrary to the terms hereof shall be null, void and of no force and
effect.
This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and assigns as permitted
hereunder. No person or entity other than the parties hereto is or shall be
entitled to bring any action to enforce any provision of this Agreement against
any of the parties hereto, and the covenants and
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agreements set forth in this Agreement shall be solely for the benefit of, and
shall be enforceable only by, the parties hereto or their respective successors
and assigns as permitted hereunder.
The Operating Partnership may designate one or more Designated
Subsidiaries to acquire all or any part of the Contributed Interests (in which
case the Designated Subsidiary shall execute a certificate at closing making the
same representations and warranties as are made by Operating Partnership and
references to Operating Partnership shall include the Designated Subsidiaries
except where the context clearly indicates otherwise).
11.6 SEVERABILITY. If any part of any provision of this Agreement
or any other agreement, document or writing given pursuant to or in connection
with this Agreement shall be invalid or unenforceable under applicable law, such
part shall be ineffective to the extent of such invalidity or unenforceability
only, without in any way affecting the remaining parts of such provisions or the
remaining provisions of said agreement so long as the economic and legal
substance of the Contributions is not affected in any manner materially adverse
to either party.
11.7 ENTIRE AGREEMENT; AMENDMENT. The Schedules and the Exhibits
attached hereto are hereby incorporated into the Agreement as if fully set forth
herein. This Agreement, and the Schedules and Exhibits attached hereto, together
with the Memorandum, contain the final and entire agreement between the parties
hereto with respect to the Contributions, supersede all prior oral and written
memoranda and agreements with respect to the matters contemplated herein, and
are intended to be an integration of all prior negotiations and understandings.
Contributors and Operating Partnership shall not be bound by any terms,
conditions, statements, warranties or representations, oral or written, not
contained or referred to herein or therein. No change or modification of this
Agreement shall be valid unless the same is in writing and signed by the parties
hereto.
11.8 NO WAIVER. No delay or failure on the part of any party hereto
in exercising any right, power or privilege under this Agreement or under any
other instrument or document given in connection with or pursuant to this
Agreement shall impair any such right, power or privilege or be construed as a
waiver of any default or any acquiescence therein. No single or partial exercise
of any such right, power or privilege shall preclude the further exercise of
such right, power or privilege. No waiver shall be valid against any party
hereto unless made in writing and signed by the party against whom enforcement
of such waiver is sought and then only to the extent expressly specified
therein.
11.9 CONSENT AND POWER OF ATTORNEY. The General Partner hereby
consents to the contribution of the Contributed Interests pursuant hereto by
each of the Contributors. Each Contributor is consenting to each matter set
forth herein. In addition, by executing this Agreement pursuant to the Consent,
each Contributor is constituting and appointing each of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇,
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individually, with full power of substitution, the true and lawful
attorney-in-fact (the "Attorney") of such Contributor, with full power and
authority in the name of and for and on behalf of such Contributor, to execute
an instrument of conveyance contributing his, her or its Contributed Interests
to Operating Partnership pursuant to the Consolidation on the terms set forth in
the Memorandum, to execute the Partnership Agreement of Operating Partnership
and the Registration Rights Agreement and a Unit Redemption Agreement (if the
Contributor elects to redeem its Units for cash immediately after the Closing),
to execute any instruments required to be filed in connection with the
Conveyance Taxes and to execute any other instruments that the General Partner
reasonably determines necessary or appropriate in connection with the
contribution of the Contributed Interests pursuant to this Agreement and the
consummation of the Consolidation, including, without limitation, to consummate
the transactions which are the subject matter of the Major Partner Agreement.
Each Contributor shall promptly notify the General Partner if any of
the representations and warranties by that partner were not true and correct
when made or become untrue at any time prior to the Closing.
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IN WITNESS WHEREOF, each of the Contributors agrees to be bound by the
terms of this Agreement and each of Operating Partnership, the General
Partner and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ has caused this Agreement to be duly executed and
delivered on its or his behalf as of the date first above written.
THE MENDIK COMPANY, L.P.
By: The Mendik Company, Inc., general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
MENDIK RELP CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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B&B Park Avenue L.P.
Exhibit A
List of Partners
Number of Units
Mendik RELP Corporation 423
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330 Madison Avenue
New York, N.Y. 10017
12