Exhibit 10(a)
FORM OF
OMNIBUS CONTRIBUTION AGREEMENT
BY AND AMONG
MACKLOWE PROPERTIES, L.P.,
MACKLOWE PROPERTIES, INC.,
AND THE
CONTRIBUTORS NAMED HEREIN
Dated as of May 14, 1998
TABLE OF CONTENTS
PAGE
ARTICLE I.
CONTRIBUTION TERMS AND CLOSING PROCEDURES. . . . . . . . . . . . . . . . . . 2
1.1 CONTRIBUTION OF INTERESTS. . . . . . . . . . . . . . . . . . . . . . 2
1.2 TERM OF AGREEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.3 MINIMUM CONSIDERATION. . . . . . . . . . . . . . . . . . . . . . . . 2
1.4 CLOSING; CONDITION TO OBLIGATIONS. . . . . . . . . . . . . . . . . . 3
1.5 DOCUMENTS TO BE DELIVERED AT CLOSING . . . . . . . . . . . . . . . . 4
1.6 CESSATION OF IPO . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.7 CLOSING COSTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.8 DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.9 FURTHER ASSURANCES . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE II.
REPRESENTATIONS, WARRANTIES
AND COVENANTS OF CONTRIBUTORS. . . . . . . . . . . . . . . . . . . . . . . . 6
2.1 TITLE TO INTERESTS . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.2 AUTHORITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.3 LITIGATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.4 NO OTHER AGREEMENTS TO SELL. . . . . . . . . . . . . . . . . . . . . 8
2.5 NO BROKERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.6 INVESTMENT REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . . . 9
2.7 FIRPTA REPRESENTATION. . . . . . . . . . . . . . . . . . . . . . . . 11
2.8 COVENANT TO REMEDY BREACHES. . . . . . . . . . . . . . . . . . . . . 11
2.9 INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.10 COVENANT TO OPERATE IN THE ORDINARY COURSE . . . . . . . . . . . . . 12
2.11 NASD AFFILIATION . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE III.
REPRESENTATIONS, WARRANTIES AND
COVENANTS OF OPERATING PARTNERSHIP . . . . . . . . . . . . . . . . . . . . . 12
3.1 AUTHORITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.2 NO BROKERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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ARTICLE IV.
CLOSING ADJUSTMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.1 PRORATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.2 ASSET ENTITY'S RETAINED ITEMS. . . . . . . . . . . . . . . . . . . . 15
4.3 ACCOUNTS RECEIVABLE. . . . . . . . . . . . . . . . . . . . . . . . . 15
4.4 SECURITY DEPOSITS. . . . . . . . . . . . . . . . . . . . . . . . . . 16
4.5 TIMING OF CALCULATIONS; COOPERATION. . . . . . . . . . . . . . . . . 16
4.6 ALLOCATION OF ADJUSTMENTS. . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE V.
POWER OF ATTORNEY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5.1 GRANT OF POWER OF ATTORNEY . . . . . . . . . . . . . . . . . . . . . 16
5.2 LIMITATION ON LIABILITY. . . . . . . . . . . . . . . . . . . . . . . 18
5.3 RATIFICATION; THIRD PARTY RELIANCE . . . . . . . . . . . . . . . . . 18
ARTICLE VI.
RESTRICTIONS ON SALES
OF PROPERTIES/TAX MATTERS. . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.1 RESTRICTIONS ON TRANSFER.. . . . . . . . . . . . . . . . . . . . . . 19
6.2 MAINTENANCE OF INDEBTEDNESS. . . . . . . . . . . . . . . . . . . . . 19
ARTICLE VII.
DIRECT CONTRIBUTIONS,
MERGERS AND OTHER MATTERS. . . . . . . . . . . . . . . . . . . . . . . . . . 19
7.1 AMENDMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
7.2 ENTIRE AGREEMENT; COUNTERPARTS; APPLICABLE LAW . . . . . . . . . . . 20
7.3 ASSIGNABILITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
7.4 TITLES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
7.5 THIRD PARTY BENEFICIARY. . . . . . . . . . . . . . . . . . . . . . . 20
7.6 SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
7.7 EQUITABLE REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . 21
7.8 ATTORNEYS' FEES. . . . . . . . . . . . . . . . . . . . . . . . . . . 21
7.9 NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
7.10 DIRECT CONTRIBUTIONS AND MERGERS . . . . . . . . . . . . . . . . . . 22
7.11 WAIVER OF RIGHTS; CONSENTS WITH RESPECT TO PARTNERSHIP INTERESTS . . 22
7.12 LEGENDING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
7.13 CONFIDENTIALITY. . . . . . . . . . . . . . . . . . . . . . . . . . . 25
7.14 COMPUTATION OF TIME. . . . . . . . . . . . . . . . . . . . . . . . . 25
7.15 SURVIVAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
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7.16 TIME OF THE ESSENCE. . . . . . . . . . . . . . . . . . . . . . . . . 25
EXHIBIT A: Contributors
EXHIBIT B: Properties
EXHIBIT C: Excluded Interests
EXHIBIT D: Asset Entities
EXHIBIT E: Permitted Encumbrances
EXHIBIT F: Agreement of Limited Partnership of the Operating Partnership
EXHIBIT G: Investor Questionnaire
EXHIBIT H: Registration Rights Agreement
EXHIBIT I: Designated Properties
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FORM OF
OMNIBUS CONTRIBUTION AGREEMENT
This Omnibus Contribution Agreement, including all exhibits hereto
(the "Omnibus Contribution Agreement"), is executed as of the 14th day of May,
1998 by Macklowe Properties, L.P., a Delaware limited partnership (the
"Operating Partnership"), Macklowe Properties, Inc., a Maryland corporation,
(the "REIT"), and the Contributors whose names are set forth in EXHIBIT A hereto
(each, a "Contributor" and, collectively, the "Contributors").
RECITALS
A. The Macklowe Organization and its affiliates "Macklowe", in
connection with the consolidation of its commercial real estate business, have
formed the REIT as a Maryland corporation that will be the sole general partner
of the Operating Partnership and intends to effect an initial public offering
(the "IPO") of the REIT's shares of common stock ("Common Stock");
B. It is intended that the Operating Partnership, upon consummation
of the IPO, will acquire, among other things, interests in the assets, interests
or other properties listed on EXHIBIT B hereto;
C. It is understood that the Operating Partnership may acquire
interests in additional properties with the proceeds of the IPO;
D. Each Contributor owns interests in the partnerships and/or other
entities or properties described in the supplemental exhibit dated the date
hereof and delivered by or on behalf of such Contributor to the Operating
Partnership (such exhibit being hereinafter referred to as such Contributor's
"Supplemental Acquisition Exhibit");
E. The Operating Partnership desires to acquire from each
Contributor, and each Contributor desires to convey to the Operating Partnership
under the terms and conditions set forth herein, the assets, interests or other
properties owned by such Contributor described in its Supplemental Acquisition
Exhibit and (except for the Excluded Interests set forth in EXHIBIT C) (each
such asset or property and all personal property related thereto or to the
operation thereof is hereinafter referred to as an "Asset" and each direct or
indirect interest of a Contributor in the partnership or other entities listed
on EXHIBIT D (the "Asset Entities") or (in the case of Contributors which are
themselves Asset Entities) in an Asset, including without limitation, such
Contributor's interests set forth in its Supplemental Acquisition Exhibit, is
referred to individually as an "Interest" and collectively, as such
Contributor's "Interests"); and
F. Each Contributor acknowledges that the REIT and the Operating
Partnership may decide that, rather than acquiring all of the direct and
indirect interests in the entity that owns a certain Asset or acquiring an Asset
by direct purchase, it is more desirable for the REIT or the Operating
Partnership to acquire a Contributor's or an Asset Entity's Interests by a
direct contribution of the Asset from the Asset Entity that owns such Asset (a
"Direct Contribution"), or by a merger of the Contributor or Asset Entity with
and into the REIT, the Operating Partnership or an affiliate of either of them
(a "Merger"); and whereas each Contributor, desiring to give the REIT and the
Operating Partnership the right, in the REIT's and the Operating Partnership's
sole discretion, to engage in any Direct Contribution or Merger on the terms and
conditions described herein without the need to seek any further consent or
action of the Contributor, will give hereby an irrevocable consent and related
power of attorney as set forth in Article V hereof.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and
conditions set forth herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Operating
Partnership, the REIT, and the Contributors agree as follows:
ARTICLE I.
CONTRIBUTION TERMS AND CLOSING PROCEDURES
1.1 CONTRIBUTION OF INTERESTS. At the Final Closing (defined
below), each Contributor shall, subject to Section 1.4 hereof, assign, transfer,
convey, contribute and deliver to the Operating Partnership and the Operating
Partnership shall (i) acquire and accept from such Contributor, all right, title
and interest of such Contributor in such Contributor's Interests, free and clear
of all Encumbrances (as defined in Section 2.1 hereof) except Permitted
Encumbrances (as defined in Section 2.1 hereof), and (ii) deliver to such
Contributor such Contributor's Consideration (defined below), both in accordance
with this Omnibus Contribution Agreement.
1.2 TERM OF AGREEMENT. If the Final Closing does not occur by
December 31, 1998 (the "Termination Date"), this Omnibus Contribution Agreement
shall be deemed terminated and shall be of no further force and effect and none
of the REIT, the Operating Partnership nor the Contributors shall have any
further obligations hereunder except as specifically set forth herein.
1.3 MINIMUM CONSIDERATION. The minimum consideration for each
Contributor's Interests (such consideration with respect to such Contributor is
hereinafter referred to as such Contributor's "Consideration") shall be set
forth in the Contributor's Supplemental Acquisition Exhibit, subject to the
terms and provisions of Article IV hereof providing for
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adjustments to each Contributor's Consideration based on closing adjustments.
The Consideration will be paid to each Contributor at the Final Closing in cash,
a number of shares of Common Stock (which will be valued based on the IPO price
of the Common Stock) and/or a number of units of limited partnership in the
Operating Partnership ("Units") (which will be valued based on the IPO price of
the Common Stock).
1.4 CLOSING; CONDITION TO OBLIGATIONS. In connection with the
acquisition of the Contributors' Interests, the Operating Partnership will
notify the Contributors of a closing date, which date will be no later than the
Termination Date, for the initial closing (the "Initial Closing") of the
acquisition contemplated by this Omnibus Contribution Agreement. At or before
such Initial Closing, which shall be held at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or such other place as is determined
by the Operating Partnership in its sole discretion, at a time specified by the
Operating Partnership in its sole discretion, the Operating Partnership and the
Contributors will execute all closing documents (the "Closing Documents")
required by the Operating Partnership in accordance with Section 1.5 hereof and
deposit the same in escrow with ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, as escrow agent of the
Operating Partnership (the "Closing Agent").
The transactions contemplated by this Omnibus Contribution Agreement
and by the Closing Documents executed and deposited in connection with such
exercise will be consummated at the Final Closing (as defined below) only if the
closing of the IPO (the "IPO Closing") is consummated by the Termination Date.
If the IPO Closing occurs by such date:
(a) the Operating Partnership shall cause to be delivered
to the Closing Agent with respect to each Contributor such Contributor's
Consideration, as adjusted pursuant to Article IV hereof and each
Contributor that receives Units will be admitted as a limited partner of
the Operating Partnership;
(b) upon receipt of the Consideration set forth in clause
(a) above, the Closing Agent will release the Closing Documents to the
Operating Partnership and deliver to the Contributor the Consideration; and
(c) the transactions described or otherwise contemplated
herein or in the Closing Documents will thereupon be deemed to have been
consummated simultaneously with the IPO Closing (such consummation, the
"Final Closing").
Notwithstanding the above, the Operating Partnership may, in its sole
discretion, elect not to complete the acquisition of all or any portion of the
Interests of any Contributor. The election of the Operating Partnership to not
acquire all or any portion of the Interests of a particular Contributor shall
not affect the obligations of any other Contributor hereunder.
Insurance on the transferred assets shall be assigned to the Operating
Partnership at the Final Closing. The risk of loss to an Asset Entity's Assets
prior to the Final Closing shall
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be borne by such Asset Entity. If, prior to the Final Closing, any of an Asset
Entity's Assets shall be destroyed or damaged by fire or other casualty, then
this Omnibus Contribution Agreement may, at the option of the Operating
Partnership, be terminated with respect to the Asset Entity, the Assets of which
have been destroyed or damaged. If, after the occurrence of any such casualty
affecting an Asset Entity's Assets, this Omnibus Contribution Agreement is not
so terminated relative to such Asset Entity, the Operating Partnership may elect
to (a) purchase the given Contributors' interests in such Asset Entity or
Assets, as the case may be, and (b) direct such Contributors to pay or cause to
be paid to the Operating Partnership any sums collected under any policies of
insurance because of damage due to such casualty and otherwise assign to the
Operating Partnership all rights to collect such sums as may then be
uncollected; PROVIDED, HOWEVER, that the Contributor shall not adjust or settle
any insurance claim without the Operating Partnership's prior written consent,
not to be unreasonably withheld or delayed. Under such circumstances, the
Consideration payable upon such purchase shall be reduced by the amount of any
deductibles under the applicable insurance policies.
If the IPO Closing does not occur by the Termination Date, then,
except as set forth in Section 1.8 hereof, neither party shall have any
obligations under the Closing Documents or under any agreements or instruments
executed in connection with the transactions contemplated hereunder or
thereunder (such other agreements or instruments, collectively, "Ancillary
Agreements"), and this Omnibus Contribution Agreement, the Closing Documents and
the Ancillary Agreements shall be deemed null and void AB INITIO and the Closing
Agent will be, and is hereby, directed to destroy the Closing Documents and any
Ancillary Agreement it holds and return to the Operating Partnership the
Consideration, if any, delivered by the Operating Partnership to the Closing
Agent.
1.5 DOCUMENTS TO BE DELIVERED AT CLOSING. At the Initial Closing,
each Contributor shall, directly or through the attorney-in-fact appointed
pursuant to Article V hereof, execute, acknowledge where deemed desirable or
necessary by the Operating Partnership, and deliver to the Closing Agent, in
addition to any other documents mentioned elsewhere herein, the following:
(a) A Certificate which shall either (i) reaffirm the
accuracy of all representations and warranties and the satisfaction of all
covenants made by such Contributor in Article II hereof or (ii) if such
reaffirmation cannot be made, identify those representations, warranties
and covenants of Article II hereof (other than Section 2.5 hereof) with
respect to which circumstances have changed, represent that such
Contributor has used all reasonable efforts within its control to prevent
and remedy such breach, and reaffirm the accuracy of all other
representations and warranties and the satisfaction of all other covenants
made by such Contributor in Article II hereof.
(b) All books and records, title insurance policies,
leases, lease files, contracts, stock certificates, original promissory
notes, and other indicia of ownership with
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respect to such Contributor's Interests which are in each Contributor's
possession or which can be obtained through each Contributors reasonable
efforts.
(c) Any other documents reasonably requested by the
Operating Partnership or reasonably necessary or desirable to assign,
transfer, convey, contribute and deliver such Contributor's Interests and
effectuate the transactions contemplated hereby, including, without
limitation, bargain and sale deeds, assignments of ground leases and space
leases (as applicable), such documents as may be necessary to enable a
title insurance company (acceptable to the Operating Partnership in its
sole discretion) to issue to the Operating Partnership an owner's title
insurance policy and such endorsements as the Operating Partnership may
reasonably request, insuring fee simple and/or leasehold title to all real
property and improvements comprising all or any part of the Assets to the
Operating Partnership as the Operating Partnership may designate, subject
only to the Permitted Encumbrances (as defined in Section 2.1), all state
and local transfer tax returns and any filings with any applicable
governmental jurisdiction in which the Operating Partnership is required to
file its partnership documentation or the recording of the Assignment or
deed or other Asset transfer documents is required.
1.6 CESSATION OF IPO. If at any time the Operating Partnership or
the underwriter or underwriters determine in good faith to abandon the formation
of the REIT or the IPO (the date of such determination being referred to as the
"Cessation Date"), the Operating Partnership will so advise each Contributor in
writing and thereupon all parties hereto will be relieved of all obligations
under this Omnibus Contribution Agreement, all Ancillary Agreements, and all
Closing Documents (except for obligations arising under Sections 1.7, 2.5 and
3.2 hereof).
1.7 CLOSING COSTS. Except as may be otherwise agreed between the
Operating Partnership and a particular Contributor, the Operating Partnership
agrees to pay all of the closing costs, other than Contributor's legal fees,
arising from the transfer of the Interests of each Contributor, including,
without limitation, any applicable transfer, taxes, including the taxes imposed
by Article 31 of the New York Tax Law and the New York City Real Property
Transfer Tax imposed pursuant to Administrative Code Article 21, ▇▇.▇▇., gains
and sales taxes and any transfer fee due in connection with the assumption of
existing mortgage debt by the Operating Partnership (if so requested by
Contributor).
1.8 DEFAULT. (a) If, after notifying the Contributors of a date
for the Initial Closing, the Operating Partnership fails to close, then the
Operating Partnership will pay to each Contributor the sum of $100.00 as
liquidated and agreed-upon damages. It would be difficult, if not impossible,
to ascertain the actual measure of each Contributor's damages in the event of
the Operating Partnership's default and the parties agree that $100.00 is a fair
reflection of each Contributor's damages in the event of the Operating
Partnership's default.
(b) If any Contributor defaults with respect to its obligations
under this Omnibus Contribution Agreement, the Operating Partnership shall be
entitled to exercise against each such
5
Contributor any and all remedies provided at law or in equity, including but not
limited to, the right to specific performance. No default by any Contributor
hereunder shall in any way limit or affect the obligations of any other
Contributor hereunder.
1.9 FURTHER ASSURANCES. Each Contributor will, from time to time,
execute and deliver to the Operating Partnership all such other and further
instruments and documents and take or cause to be taken all such other and
further action as the Operating Partnership may reasonably request in order to
effect the transactions contemplated by this Omnibus Contribution Agreement,
including instruments or documents deemed necessary or desirable by the
Operating Partnership to effect and evidence the conveyance of such
Contributor's Interests in accordance with the terms of this Omnibus
Contribution Agreement. The provisions of this Section 1.9 shall survive the
Final Closing.
ARTICLE II.
REPRESENTATIONS, WARRANTIES
AND COVENANTS OF CONTRIBUTORS
As a material inducement to the Operating Partnership and the REIT to
enter into this Omnibus Contribution Agreement and to consummate the
transactions contemplated hereby, certain Contributors or affiliates thereof
(collectively, the "Indemnitors") shall enter into a supplemental agreement (the
"Supplemental Agreement") on terms mutually acceptable to the Indemnitors and
the Operating Partnership whereby the Indemnitors shall make additional
representations, warranties and covenants with respect to matters relating to
this Omnibus Contribution Agreement and the transactions contemplation thereby,
and such Supplemental Agreement shall provide for the Indemnitors of such
representations, warranties and covenants, the survivability of such indemnity,
the amount of Common Stock and/or Units to which recourse thereunder shall be
limited, the maximum aggregate liability of all such Indemnitors and any other
relevant terms. In addition, each Contributor hereby severally makes to the
Operating Partnership and the REIT each of the representations and warranties
set forth in this Article II, which representations and warranties (unless
otherwise noted) are true as of the date hereof. As a condition to the
Operating Partnership's obligation to complete the acquisition of any
Contributor's Assets or Interests, such representations and warranties and the
representations and warranties contained in the Supplemental Agreement must
continue to be true as of the date of the Initial Closing and as of the date of
the Final Closing. Each Contributor hereby agrees to give the Operating
Partnership and the REIT written notice of any information which makes any
representation or warranty made by the Contributor hereunder or under the
Supplemental Agreement untrue within five (5) business days of obtaining such
information as follows with respect to the respective portions of the Property
owned by it.
2.1 TITLE TO INTERESTS. Each Contributor owns its Interests
beneficially and of record, free and clear of any claim, lien, pledge (other
than pledges or liens on Interests with third
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party lenders which will be removed on or prior to the Final Closing), voting
agreement, option, charge, security interest, mortgage, deed of trust,
encumbrance, rights of assignment, purchase rights or other rights of any nature
whatsoever (collectively, "Encumbrances"), except as disclosed as exceptions in
a title report, dated on or after January 1, 1998, provided such title
exceptions are satisfactory to the Operating Partnership in its sole discretion,
and except for contracts or arrangements relating to the operation of an Asset
which are in place as of the date of the Initial Closing and the Final Closing,
all as set forth on EXHIBIT E attached hereto (any such encumbrance, a
"Permitted Encumbrance"), and has full power and authority to convey free and
clear of any Encumbrances (except, where applicable, the Permitted
Encumbrances), its Interests and, upon delivery of Consideration for such
Interests as herein provided, the Operating Partnership will acquire good and
valid title thereto, free and clear of any Encumbrance except Encumbrances
created in favor of the Operating Partnership by the transactions contemplated
hereby and, where applicable, the Permitted Encumbrances. No Contributor will
consent to join in or in any way effect the transfer of any Asset prior to the
Final Closing. At the Final Closing, if so requested, Contributors will execute
all documents necessary to enable a title insurance company (acceptable to the
Operating Partnership, in its sole discretion) to issue to the Operating
Partnership an ALTA Form B (1987 or later) Owner's Policy and such endorsements
as the Operating Partnership may reasonably request, insuring fee simple and/or
leasehold title to all real property and improvements comprising all or any part
of the Assets to the Operating Partnership. Each of such Contributor's
Interests have been validly issued and each Contributor has funded (or will fund
before the same is past due) all capital contributions and advances to the
entity in which such Interest represents an interest that are required to be
funded or advanced prior to the date hereof and the date of the Initial Closing
and the Final Closing. There are no agreements, instruments or understandings
with respect to any of such Contributor's Interests except as disclosed in
writing to the Operating Partnership. Such Contributor has no interest, either
direct or indirect, in any of the Assets except for (a) the Interests owned by
it which are the subject of this Omnibus Contribution Agreement, (b) the
Excluded Interests (where applicable) and (c) direct or indirect interests in
partnerships or other entities which are themselves Contributors hereunder.
Such Contributor covenants that no Encumbrance on its Interests (except, where
applicable, the Permitted Encumbrances) will be in existence as of the date of
the Final Closing. In making the representations in this Section 2.1 regarding
the absence of Encumbrances, each Contributor may assume that the consents and
waivers of rights set forth in Section 7.11 hereof have been given by all
partners of partnerships or owners of voting interests in entities in which such
Contributor's Interests represent direct or indirect interests and may further
assume that any required consents from lenders have been obtained.
Notwithstanding anything to the contrary contained herein, to the extent that
the Contributor's Interests transferred hereunder constitute interests in
partnerships or other entities ("Continuing Partnerships") which will continue
in existence after the consummation of the transactions contemplated hereby,
such Interests are and will remain subject to the terms and provisions of the
partnership or other organizational agreements (each as amended) of the
Continuing Partnerships, including without limitation, restrictions, options,
priorities and partnership loans provided for therein.
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2.2 AUTHORITY. Such Contributor has full right, authority, power
and capacity: (a) to enter into this Omnibus Contribution Agreement and each
agreement, document and instrument to be executed and delivered by or on behalf
of such Contributor pursuant to this Omnibus Contribution Agreement; (b) to
carry out the transactions contemplated hereby and thereby; and (c) to assign,
transfer, convey, contribute and deliver all of such Contributor's Interests to
the Operating Partnership upon delivery to such Contributor of the Consideration
therefor in accordance with this Omnibus Contribution Agreement. This Omnibus
Contribution Agreement and each agreement, document and instrument executed and
delivered by or on behalf of such Contributor pursuant to this Omnibus
Contribution Agreement constitutes, or when executed and delivered will
constitute, the legal, valid and binding obligation of such Contributor, each
enforceable in accordance with their respective terms. Except for any breaches,
violations or defaults which will be waived or cured prior to the Initial
Closing and all loans, indentures, creditor agreements or other agreements which
will be discharged or repaid prior to or contemporaneously with the Final
Closing, the execution, delivery and performance of this Omnibus Contribution
Agreement and each such agreement, document and instrument by or on behalf of
such Contributor: (a) does not and will not violate such Contributor's
partnership agreement or operating agreement, if applicable, or other
organizational documentation; (b) does not and will not violate any foreign,
federal, state, local or other laws applicable to or binding on such Contributor
or require such Contributor to obtain any approval, consent or waiver of, or
make any filing with, any person or authority (governmental or otherwise) that
has not been obtained or made or which does not remain in effect; and (c) does
not and will not result in a breach of, constitute a default under, accelerate
any obligation under or give rise to a right of termination of, any indenture or
loan or credit agreement or any other agreement, contract, instrument, mortgage,
lien, lease, permit, authorization, order, writ, judgment, injunction, decree,
determination or arbitration award to which such Contributor is a party or by
which the property of such Contributor is bound or affected, or result in the
creation of any Encumbrance on any of the property or assets of any partnership
in which an Interest of such Contributor represents an interest. In making the
representations set forth in this Section 2.2, each Contributor may assume that
the consents and waivers of rights set forth in Section 7.11 hereof have been
given by all partners of partnerships or owners of voting interests in entities
in which such Contributor's Interests represent direct or indirect interests,
and may further assume that any required consents from lenders have been
received.
2.3 LITIGATION. There is no material litigation or proceeding,
either judicial or administrative, pending or overtly threatened, affecting all
or any portion of such Contributor's Interests or such Contributor's ability to
consummate the transactions contemplated hereby. Such Contributor knows of no
outstanding order, writ, injunction or decree of any court, government,
governmental entity or authority or arbitration against or affecting all or any
portion of its Interests, which in any such case would impair such Contributor's
ability to enter into and perform all of its obligations under this Omnibus
Contribution Agreement.
2.4 NO OTHER AGREEMENTS TO SELL. Such Contributor has not made any
agreement with, and will not enter into any agreement with, and has no
obligation (absolute or
8
contingent) to, any person or firm other than the Operating Partnership (a) to
sell, transfer or in any way encumber (except for Permitted Encumbrances) any of
such Contributor's Interests or to not sell such Contributor's Interests, or (b)
to enter into any agreement with respect to a sale, transfer or encumbrance or
put or call right with respect to such Contributor's Interests; except in each
case for those agreements which will be waived or terminated on or prior to the
Initial Closing. In making the representations set forth in this Section 2.4,
the Contributor may assume that the consents and waivers of rights set forth in
Section 7.11 hereof have been given by all partners of partnerships or owners of
voting interests in entities in which such Contributor's Interests represent
direct or indirect interests, and may further assume that any required consents
from lenders have been received.
2.5 NO BROKERS. Solely with respect to the transfer of the
Interests contemplated hereby, such Contributor has not entered into, and
covenants that it will not enter into, any agreement, arrangement or
understanding with any person or firm which will result in the obligation of the
Operating Partnership to pay any finder's fee, brokerage commission or similar
payment as a result of the transfer of the Interests contemplated hereby and
such Contributor shall indemnify and hold harmless the Operating Partnership for
all costs and expenses incurred by the Operating Partnership as a result of a
breach of this representation. The provisions of this Section 2.5 shall survive
termination of this Omnibus Contribution Agreement.
2.6 INVESTMENT REPRESENTATIONS AND WARRANTIES. Each Contributor
who is receiving Common Stock and/or Units represents and warrants as follows:
(a) Upon the issuance of Units to such Contributor, such
Contributor shall become subject to, and shall be bound by, the terms and
provisions of the agreement of limited partnership of the Operating
Partnership (in substantially the form attached hereto as EXHIBIT F (the
"Partnership Agreement"), including the terms of the power of attorney
contained in Section 2.4 thereof, as the Partnership Agreement may be
amended from time in accordance with its terms.
(b) Such Contributor understands the risks of, and other
considerations relating to, the purchase of the Common Stock and/or Units.
Such Contributor, by reason of its business and financial experience,
together with the business and financial experience of those persons, if
any, retained by it to represent or advise it with respect to its
investment in the Common Stock and/or Units, has such knowledge,
sophistication and experience in financial and business matters and in
making investment decisions of this type that it is capable of evaluating
the merits and risks of an investment in the REIT and/or the Operating
Partnership and of making an informed investment decision, (ii) is capable
of protecting its own interest or has engaged representatives or advisors
to assist it in protecting its interests and (iii) is capable of bearing
the economic risk of such investment. If such Contributor retained a
person to represent or advise it with respect to the investment in Common
Stock and/or Units that may be made hereby then, at the Operating
Partnership's request, such Contributor shall, prior to or at the Initial
Closing,
9
(i) acknowledge in writing such representation and (ii) cause such
representative or advisor to deliver a certificate to the Operating
Partnership containing such representations as are reasonably requested by
the Operating Partnership.
(c) Such Contributor understands that an investment in the
REIT and/or the Operating Partnership involves substantial risks. Such
Contributor has been given the opportunity to make a thorough investigation
of the proposed activities of the REIT and/or the Operating Partnership and
has been furnished with materials relating to the REIT and/or the Operating
Partnership and their proposed activities. Such Contributor has been
afforded the opportunity to obtain any additional information deemed
necessary by such Contributor to verify the accuracy of any representations
made or information conveyed to such Contributor. Such Contributor
confirms that all documents, records, and books pertaining to its
investment in the REIT and/or the Operating Partnership and requested by
such Contributor have been made available or delivered to such Contributor.
Such Contributor has had an opportunity to ask questions of and receive
answers from the REIT and/or the Operating Partnership, or from a person or
persons acting on the REIT's or the Operating Partnership's behalf,
concerning the terms and conditions of this investment. Such Contributor
has relied and is making its investment decision upon written information
provided to the Contributor by or on behalf of the REIT and/or the
Operating Partnership and/or Contributor's position (in the case of certain
individual Contributors) as a director or executive officer of the REIT.
(d) The Common Stock and/or Units to be issued to such
Contributor will be acquired by such Contributor for its own account (or if
such Contributor is a trustee, for a trust account) for investment only and
not with a view to, or with any intention of, a distribution or resale
thereof, in whole or in part, or the grant of any participation therein,
without prejudice, however, to such Contributor's right (subject to the
terms of the Common Stock and/or Units) at all times to sell or otherwise
dispose of all or any part of its Common Stock and/or Units under an
exemption from such registration available under the Securities Act of
1933, as amended (the "Securities Act"), and applicable state securities
laws, and subject, nevertheless, to the disposition of its assets being at
all times within its control. Such Contributor was not formed for the
specific purpose of acquiring an interest in the REIT and/or the Operating
Partnership.
(e) Such Contributor acknowledges that (i) the Common Stock
and/or Units to be issued to such Contributor have not been registered
under the Securities Act or state securities laws by reason of a specific
exemption or exemptions from registration under the Securities Act and
applicable state securities laws and, if such Common Stock and/or Units are
represented by certificates, such certificates will bear a legend to such
effect, (ii) the REIT's and the Operating Partnership's reliance on such
exemptions is predicated in part on the accuracy and completeness of the
representations and warranties of such Contributor contained herein, (iii)
such Common Stock and/or Units, therefore, cannot be resold unless
registered under the Securities Act and applicable state securities
10
laws, or unless an exemption from registration is available, (iv) there is
no public market for the Units, and (v) the Operating Partnership has no
obligation or intention to register such Units for resale under the
Securities Act or any state securities laws or to take any action that
would make available any exemption from the registration requirements of
such laws. Such Contributor hereby acknowledges that because of the
restrictions on transfer or assignment of such Common Stock and/or Units to
be issued hereunder which will be set forth in the Partnership Agreement
and/or in a Registration Rights Agreement (as defined in Section 5.1
hereof), such Contributor may have to bear the economic risk of the
investment commitment evidenced by this Omnibus Contribution Agreement and
any Common Stock and/or Units acquired hereby for an indefinite period of
time, although (i) under the terms of the Partnership Agreement, as it will
be in effect at the time of the IPO, Units will be redeemable at the
request of the holder thereof at any time after the first anniversary of
their issuance for cash or (at the option of the REIT) for Common Stock and
(ii) the holder of any such Common Stock issued upon a presentation of
Units for redemption or issued pursuant to this Omnibus Contribution
Agreement will be afforded certain rights to have such Common Stock
registered for resale under the Securities Act or applicable state
securities laws under the Registration Rights Agreement as described more
fully below.
(f) The information set forth in the investor questionnaire
(a form of which is attached hereto as EXHIBIT G) (the "Investor
Questionnaire") which has been completed and executed by such Contributor
and delivered to the Operating Partnership on the date hereof is true,
correct and complete.
2.7 FIRPTA REPRESENTATION. Contributor is not a "foreign person"
within the meaning of Section 1445 of the Internal Revenue Code of 1986, as
amended.
2.8 COVENANT TO REMEDY BREACHES. Each Contributor covenants to use
all reasonable efforts within its control (a) to prevent the breach of any
representation or warranty of such Contributor hereunder, (b) to satisfy all
covenants of such Contributor hereunder and (c) to promptly cure any breach of a
representation, warranty or covenant of such Contributor hereunder upon its
learning of same.
2.9 INDEMNIFICATION. Contributor agrees to indemnify, defend and
hold Operating Partnership and the REIT harmless from and against any and all
costs, expenses, losses and damages (including, without limitation, reasonable
attorneys' fees and expenses, but not excluding consequential damages) incurred
by the Operating Partnership or the REIT resulting from any misrepresentation or
breach of warranty made by Contributor in this Agreement; PROVIDED, HOWEVER,
that written notice of any such misrepresentation or breach of warranty must be
given to Contributor.
11
2.10 COVENANT TO OPERATE IN THE ORDINARY COURSE. Each Contributor
covenants that, without the prior written consent of the Operating Partnership
and the REIT, the Contributor will not
(a) enter into any material transaction not in the ordinary
course of business;
(b) materially amend, modify or terminate any material
agreements or other instruments relating to the Interests and/or Assets
being contributed by it to which such Contributor is a party; or
(c) materially alter the manner of keeping its books,
accounts or records or the accounting practices therein reflected with
regard to the Interests and/or Assets being contributed by it.
2.11 NASD AFFILIATION. Each Contributor represents severally that
neither it nor any affiliate of such Contributor is a member, affiliate of a
member or person associated with a member of the National Association of
Securities Dealers, Inc. ("NASD"). Each Contributor further represents
severally that neither it nor any affiliate of such Contributor owns any stock
or other securities of any NASD member not purchased in the open market, or has
made any outstanding subordinated loans to an NASD member. (A company or
natural person is presumed to control a member of the NASD and is therefore
presumed to constitute an affiliate of such a member if the company or person is
the beneficial owner of 10% or more of the outstanding securities of a member
which is a corporation. Additionally, a natural person is presumed to control a
member of the NASD and is therefore presumed to constitute an affiliate of such
a member if such person has the power to direct or cause the direction of the
management or policies of such member.)
ARTICLE III.
REPRESENTATIONS, WARRANTIES AND
COVENANTS OF OPERATING PARTNERSHIP
As a material inducement to each Contributor to enter into this
Omnibus Contribution Agreement and to consummate the transactions contemplated
hereby, the Operating Partnership hereby makes to each Contributor each of the
representations and warranties set forth in this Article III, which
representations and warranties shall be true as of the date hereof, as of the
date of the Initial Closing and as of the date of consummation of the Final
Closing.
3.1 AUTHORITY. The Operating Partnership and the REIT each has
full right, authority, power and capacity: (a) to enter into this Omnibus
Contribution Agreement and each agreement, document and instrument to be
executed and delivered by or on behalf of it pursuant
12
to this Omnibus Contribution Agreement; (b) to carry out the transactions
contemplated hereby and thereby; and (c) to issue Common Stock and/or Units, as
applicable, to each Contributor to the extent called for in accordance with the
terms of this Omnibus Contribution Agreement. This Omnibus Contribution
Agreement and each agreement, document and instrument executed and delivered by
the REIT and/or the Operating Partnership pursuant to this Omnibus Contribution
Agreement constitutes, or when executed and delivered will constitute, the
legal, valid and binding obligation each of the REIT and the Operating
Partnership, each enforceable in accordance with their respective terms. The
execution, delivery and performance of this Omnibus Contribution Agreement and
each such agreement, document and instrument by each of the REIT and the
Operating Partnership: (a) does not and will not violate the Partnership
Agreement; (b) does not and will not violate any foreign, federal, state and
local or other laws applicable to the REIT or the Operating Partnership or
require the REIT or the Operating Partnership to obtain any approval, consent or
waiver of, or make any filing with, any person or authority (governmental or
otherwise) that has not been obtained or made; and (c) does not and will not
result in a breach of, constitute a default under, accelerate any obligation
under or give rise to a right of termination of, any indenture or loan or credit
agreement or any other agreement, contract, instrument, mortgage, lien, lease,
permit, authorization, order, writ, judgment, injunction, decree, determination
or arbitration award to which the REIT or the Operating Partnership is a party
or by which the property of the REIT or the Operating Partnership is bound or
affected.
3.2 NO BROKERS. Each of the REIT and the Operating Partnership
represents that it has not entered into, and covenants that it will not enter
into, any agreement, arrangement or understanding with any person or firm which
will result in the obligation of any Contributor to pay any finder's fee,
brokerage commission or similar payment in connection with the transactions
contemplated hereby.
ARTICLE IV.
CLOSING ADJUSTMENTS
4.1 PRORATIONS. In the case of (i) each Asset Entity which is
itself a Contributor and (ii) each Asset Entity in which the Operating
Partnership acquires an interest pursuant to this Omnibus Contribution
Agreement, the Operating Partnership and such Asset Entity shall make the
prorations set forth below, and make payment with respect to such prorations as
appropriate. To the extent an Asset Entity ceases to have a separate legal
existence as a result of the transactions contemplated hereunder, those
Contributors who held interests in such Asset Entity shall collectively exercise
the rights of such Asset Entity, and succeed to the obligations of such Asset
Entity, under this Omnibus Contribution Agreement from and after the Final
Closing.
(a) TAXES. Except with respect to that portion of real
property taxes and general and special assessments, water and sewer rents,
tap charges, and business improvement district charges billable to tenants
as pass-through, common area charges or
13
the like, which shall be adjusted pursuant to Section 4.1(b), real property
taxes and general and special assessments, water and sewer rents, tap
charges, and business improvement district charges upon the Asset shall be
adjusted and prorated as of the date of the Final Closing on the basis of
the fiscal year for such taxes and assessments (the "Tax Year"). If the
Final Closing shall occur before the real property tax rate for the Tax
Year is fixed, the apportionment of taxes provided above shall be made on
the basis of the taxes assessed for the preceding Tax Year. After the real
property taxes are finally fixed for the Tax Year in which the Final
Closing occurs, the Operating Partnership and such Asset Entity shall make
a recalculation of the apportionment of such taxes, and the Operating
Partnership or the Asset Entity, as the case may be, shall make an
appropriate payment to the other based on such recalculation. To the
extent that either the Asset Entity or the Operating Partnership shall
obtain any real estate tax abatement, reduction, refund or incentive with
respect to the Asset, the amount of the net proceeds of such tax abatement,
reduction, refund or incentive shall be prorated through the date of the
Final Closing if, as, and when such proceeds are paid by the applicable
governmental taxing authority (it being understood that to the extent any
tenant demising space in the Asset owned by such Asset Entity shall be
entitled to any portion of such tax abatement, that such portion shall be
turned over to the Operating Partnership to remit to such tenant and shall
be deducted from any tax abatement, reduction, refund or incentive proceeds
in connection with calculating the net proceeds thereof).
(b) RENTS. Rents, additional rents, including electricity
charges, operating expense recoveries, and tax reimbursements under the
leases affecting the Asset (collectively, "Rents") shall be adjusted and
prorated as of the date of the Final Closing. Rents collected after the
date of the Final Closing from tenants whose rental was delinquent on the
date of the Final Closing shall be deemed to apply first to current rents
due at the time of payment and second to past due rents accruing after the
Final Closing and last to the rents which were past due on the date of the
Final Closing. Unpaid and past due rents to which the Asset Entity is
entitled shall be promptly paid over to the Asset Entity if collected by
the Operating Partnership after the date of the Final Closing, less any
reasonable collection costs actually incurred by the Operating Partnership.
(c) PREPAYMENTS. Any prepayment made by or on behalf of
the Asset Entity under any service, maintenance, management, consulting, or
similar contracts shall be adjusted and prorated as of the date of the
Final Closing.
(d) EXPENSES. Charges and assessments for sewer and water
and other utilities, including charges for consumption of electricity,
steam and gas (unless the Operating Partnership elects to have final meter
readings made as of the Final Closing in which event the adjustment shall
be made based on such meter readings); current operating expenses,
including, without limitation, obligations under any service, maintenance,
management, consulting, or similar contracts; payroll and related expenses
(including all benefits and vacation and sick days); license and permit
fees relating to the operation of
14
the Asset; insurance and bond premiums; and any other charges incident to
the ownership, use and/or occupancy of the Asset shall be adjusted and
prorated as of the date of the Final Closing. To the extent that any of
the foregoing expenses have been paid by a Asset Entity, and have been
billed or are billable to, but not yet paid by any tenant, such Asset
Entity shall receive a full credit for the aggregate of all such unpaid
billed or billable amounts, and to the extent payment in respect of same is
received by a Asset Entity after Closing, it shall promptly deliver such
payment to the Operating Partnership.
(e) INTEREST ON EXISTING MORTGAGES. Interest on existing
mortgages encumbering any Assets shall be adjusted and prorated as of the
date of the Final Closing.
(f) FUEL AND MAINTENANCE SUPPLIES STORED ON SITE. The
costs of purchasing fuel and maintenance supplies stored on site shall be
adjusted and prorated as of the date of the Final Closing.
(g) RELETTING EXPENSES FOR NEW LEASES. Customary reletting
expenses (including without limitation, brokerage commissions, tenant
improvements and moving expenses paid by the Asset Entity) for leases
entered into after the date hereof and prior to the Final Closing shall be
adjusted and prorated over the base term of the applicable lease and based
upon prices in effect on or immediately prior to the date of the Final
Closing.
4.2 ASSET ENTITY'S RETAINED ITEMS. All cash on hand, working
capital, escrow and reserve accounts other than tenant security deposits, and
utility or other deposits ("Cash on Hand") shall be distributed by the Asset
Entity to its current shareholders, partners or members, as applicable, prior to
the Final Closing, except as required as reserves to satisfy contingent
liabilities or proration amounts as described above. To the extent proration
amounts exceed Cash on Hand, a pro rata amount of the net prorations may be
deducted from the total Consideration payable in respect of the related
Interest.
4.3 ACCOUNTS RECEIVABLE. The Asset Entity shall retain all
accounts receivable and other income items other than Rents which are
attributable to periods prior to the date of the Final Closing. The Asset
Entity shall deliver to the Operating Partnership at the Final Closing a
schedule of all such unpaid accounts receivable and other income items as of the
date of the Final Closing. All such accounts receivable and other income items
collected by or for the Operating Partnership after the date of the Final
Closing which are attributable to periods prior to the date of the Final Closing
shall be promptly remitted to the order of the Asset Entity. Except for sums
actually received by the Operating Partnership pursuant to the immediately
preceding sentence, the Operating Partnership shall assume no obligation to
collect or enforce the payment of any amounts that may be due to the Asset
Entity, except that the Operating Partnership shall render reasonable
assistance, at no expense to the Operating Partnership, to the Asset Entity
after the Final Closing in the event the Asset Entity proceeds against any
third-party to collect any accounts receivable or other income items due the
Asset Entity.
15
4.4 SECURITY DEPOSITS. An amount equal to all tenant security
deposits held by such Asset Entity and interest thereon, if any, and any other
amounts due tenants with respect to such security deposits shall be paid over to
the Operating Partnership at the Final Closing.
4.5 TIMING OF CALCULATIONS; COOPERATION. Each Asset Entity and/or
Contributor and the Operating Partnership agree to use reasonable efforts to
reconcile, prorate, and adjust all of the foregoing items upon the Final Closing
and, in all events within ninety (90) days after the date of the Final Closing,
to adjust and prorate such prorations and adjustments. In the event any
adjustments or prorations made pursuant to this Omnibus Contribution Agreement
are, subsequent to Final Closing, found to be erroneous, then either party
hereto who is entitled to additional amounts shall invoice the other party for
such additional amounts as may be owing, and such amounts shall be paid promptly
by the other party upon receipt of invoice. Such invoice shall be accompanied
by reasonable substantiating evidence.
4.6 ALLOCATION OF ADJUSTMENTS. All adjustments contemplated by
this Article IV shall, to the extent practicable, be made by adjusting (either
up or down) the Consideration by debiting or crediting (as the case may be) such
Contributor's Consideration with a portion of the prorated items allocated to
the Asset Entity in which the Contributor owns an interest; PROVIDED, HOWEVER,
that all such adjustments in favor of the Operating Partnership shall first be
made from Cash on Hand. The amount of an Asset Entity's adjustments calculated
pursuant to this Article IV allocated to each Contributor shall be that portion
equal to that Contributor's pro rata equity interest in each Asset Entity.
ARTICLE V.
POWER OF ATTORNEY
5.1 GRANT OF POWER OF ATTORNEY. Each Contributor does hereby
irrevocably appoint ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ and the Operating Partnership,
and each of them individually and any successor thereof from time to time (such
persons or the Operating Partnership or any such successor of any of them acting
in his, her or its capacity as attorney-in-fact pursuant hereto, the
"Attorney-In-Fact") as the true and lawful attorney-in-fact and agent of such
Contributor, to act in the name, place and stead of such Contributor:
(a) To enter into a registration rights agreement, a form
of which is attached hereto as EXHIBIT H (the "REGISTRATION RIGHTS
AGREEMENT") which provides for (i) the registration under the Securities
Act of 1933, as amended (the "Securities Act") of the REIT's Common Stock
which may be issued to the Contributor in accordance with this Omnibus
Contribution Agreement and the Partnership Agreement, upon the presentation
of Units for redemption and (ii) restrictions on the transfer of Units (and
any Common Stock which may be issued in redemption of Units) for a period
not to exceed one year from their date of issuance.
16
(b) If so requested, to enter into a lock-up agreement (the
"LOCK-UP AGREEMENT") which provides that the Contributors will not,
directly or indirectly, offer, sell, offer to sell, contract to sell, grant
any option to purchase or otherwise dispose of (or announce any offer,
sale, offer of sale, contract of sale, grant of any option to purchase or
other sale or disposition of) any share of REIT Common Stock or any
securities convertible into or exchangeable for or substantially similar to
REIT Common Stock, including the Units, for a period of 180 days from the
IPO Closing without the prior written consent of the managing underwriter
named in the Lock-up Agreement.
(c) To take for such Contributor all steps deemed necessary
or advisable in connection with the registration of the REIT's Common Stock
under the Securities Act, including without limitation (i) filing the
Registration Statement and amendments thereto under the Securities Act
which shall describe the benefits to be received by such Contributor in
connection with the formation of the REIT and the IPO, (ii) distributing a
preliminary prospectus and prospectus regarding the IPO (the "Preliminary
Prospectus" and the "Prospectus," respectively) which contain such
information as is deemed necessary or desirable to lawfully effect the
initial public offering of such shares, and (iii) taking such other steps
as the Attorney-in-Fact may deem necessary or advisable.
(d) To make, execute, acknowledge and deliver all such
other contracts, orders, receipts, notices, requests, instructions,
certificates, consents, letters and other writings (including without
limitation the execution of Closing Documents, Ancillary Agreements, the
Partnership Agreement, any other documents relating to the acquisition by
the Operating Partnership of such Contributor's Interests, any consents
contemplated by Section 7.10 hereof, and any waiver or consent contemplated
by Section 7.11 hereof) and, in general, to do all things and to take all
action which the Attorney-in-Fact in its sole discretion may consider
necessary or proper in connection with or to carry out the transaction
contemplated by this Omnibus Contribution Agreement, the Ancillary
Agreements, if any, and the Closing Documents as fully as could such
Contributor if personally present and acting.
(e) To make, acknowledge, verify and file on behalf of such
Contributor applications, consents to service of process and such other
undertakings or reports as may be required by law with state commissioners
or officers administering state securities, Blue Sky or real estate
syndication laws and to take any other action required to facilitate the
exemption for registration of the Common Stock and/or Units and the
qualification of the Common Stock and/or Units under the securities, Blue
Sky or real estate syndication laws of the jurisdictions in which the Units
and the Common Stock are to be offered.
The Power of Attorney granted by each Contributor pursuant to this
Article V and all authority conferred hereby is granted and conferred subject to
and in consideration of the interests of the Operating Partnership, the REIT and
the other Contributors and is for the purpose of completing the transactions
contemplated by this Omnibus Contribution Agreement. The Power
17
of Attorney shall terminate upon termination of this Omnibus Contribution
Agreement. The Power of Attorney of each Contributor granted hereby and all
authority conferred hereby is coupled with an interest and therefore shall be
irrevocable and shall not be terminated by any act of such Contributor or by
operation of law, whether by death, disability, incapacity or the liquidation of
such Contributor or by the occurrence of any other event or events (including
without limitation the termination of any trust or estate for which such
Contributor is acting as a fiduciary or fiduciaries), and if, after the
execution hereof, such Contributor shall die or become disabled or incapacitated
or is liquidated, or if any other such event or events shall occur before the
completion of the transactions contemplated by this Omnibus Contribution
Agreement, the Attorney-in-Fact shall nevertheless be authorized and directed to
complete all such transactions as if such death, disability, incapacity or
liquidation or other event or events had not occurred and regardless of notice
thereof. Each Contributor acknowledges that ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ and the
Operating Partnership have, and any successor thereof acting as Attorney-in-Fact
may have an economic interest in the transactions contemplated by this Omnibus
Contribution Agreement. Each Contributor agrees that, at the request of the
Operating Partnership, it will promptly execute a separate power of attorney on
the same terms set forth in this Article V, such execution to be witnessed and
notarized.
5.2 LIMITATION ON LIABILITY. It is understood that the
Attorney-in-Fact assumes no responsibility or liability to any person by virtue
of the Power of Attorney granted by each Contributor hereby. Other than as set
forth in the Supplemental Agreement, the Attorney-in-Fact makes no
representations with respect to and shall have no responsibility for the
formation of the REIT, the acquisitions of the Interests by the Operating
Partnership, the Registration Statement, the Prospectus or any Preliminary
Prospectus, nor for any aspect of the offering of the REIT's Common Stock, and
it shall not be liable for any error of judgment or for any act done or omitted
or for any mistake of fact or law except for its own gross negligence or bad
faith. Each Contributor agrees that the Attorney-in-Fact may consult with
counsel of its own choice (who may be counsel for the Operating Partnership or
the REIT) and it shall have full and complete authorization and protection for
any action taken or suffered by it hereunder in good faith and in accordance
with the opinion of such counsel. It is understood that the Attorney-in-Fact
may, without breaching any express or implied obligation to the Contributor
hereunder, release, amend or modify any other Power of Attorney granted by any
other Contributor hereunder or by any other person under any related agreement.
The provisions of this Section 5.2 shall not limit or otherwise affect the
obligations of the Operating Partnership (acting for itself and not as
Attorney-in-Fact) under the other Articles of this Omnibus Contribution
Agreement.
5.3 RATIFICATION; THIRD PARTY RELIANCE. Each Contributor does
hereby ratify and confirm all that the Attorney-in-Fact shall lawfully do or
cause to be done by virtue of the exercise of the powers granted unto it by such
Contributor hereunder, and such Contributor authorizes the reliance of third
parties on this Power of Attorney and waives its rights, if any, as against any
such third party for its reliance hereon.
18
ARTICLE VI.
RESTRICTIONS ON SALES
OF PROPERTIES/TAX MATTERS
6.1 RESTRICTIONS ON TRANSFER. The Operating Partnership and its
successors and assigns agree not to sell, transfer or otherwise dispose of
(whether by merger or otherwise) or distribute in a transaction treated as a
taxable disposition, any Property listed on EXHIBIT I hereto (each a "Designated
Property") or any property for which such Designated Property is exchanged
(collectively referred to as a "Property Transfer") in which any Contributor
holds an interest, whether direct or indirect, for the period described in
EXHIBIT I unless either (i) the Operating Partnership receives the consent of a
representative of the respective property's original contributors or (ii) the
Property Transfer occurs in a manner which upon such Property Transfer is tax
free to the Contributors or their successors and assigns.
6.2 MAINTENANCE OF INDEBTEDNESS. In connection with the
contributions of the Contributors' Interests, the Operating Partnership and the
REIT agree to maintain, at all times, and on a continuous basis, an amount of
indebtedness which shall be available to be allocated solely to each Contributor
for federal income tax purposes and for which each such Contributor shall solely
be reported for federal income tax purposes as bearing the "economic risk of
loss" within the meaning of Treasury Regulation Section 1.752-2(a) while such
Contributor is a partner in the Operating Partnership in an amount not less than
the amount set forth opposite such Contributor's name on the attached EXHIBIT J
(such amount to equal in the aggregate not less than $300 million.) In order to
have such indebtedness allocated to Contributors, the Operating Partnership
agrees to either (i) cause its lenders to permit the Contributors or any of them
individually to guarantee the "bottom portion" (i.e. least risky portion) of any
non-recourse indebtedness of the Operating Partnership (including additional
indebtedness or substitute indebtedness incurred after the Effective Date) and
to thereby become the guarantor or guarantors of last resort with respect to
such additional or substitute indebtedness or (ii) provide in the Agreement of
Limited Partnership of the Operating Partnership (the "Partnership Agreement")
for a special "bottom dollar" loss allocation to each such Contributor in an
amount equal to the amount set forth opposite such Contributor's name on the
attached EXHIBIT J with such Contributors simultaneously agreeing to a deficit
restoration obligation in the Partnership Agreement.
ARTICLE VII.
DIRECT CONTRIBUTIONS,
MERGERS AND OTHER MATTERS
7.1 AMENDMENT. Any amendment hereto shall be effective only
against those parties hereto who have acknowledged in writing their consent to
such amendment, provided that the Operating Partnership may amend this Omnibus
Contribution Agreement without notice to or
19
the consent of any Contributor (a) for the purpose of adding additional
Contributors as parties hereto or deleting Contributors as parties hereto and
conforming EXHIBIT A in connection with such additions or deletions and (b) to
conform any Contributor's Supplemental Acquisition Exhibit to the extent the
interests set forth therein do not accurately or completely reflect the interest
of such Contributor in the Asset Entities or (in the case of Contributors which
are themselves Asset Entities) their properties. No waiver of any provisions of
this Omnibus Contribution Agreement shall be valid unless in writing and signed
by the party against whom enforcement is sought.
7.2 ENTIRE AGREEMENT; COUNTERPARTS; APPLICABLE LAW. This Omnibus
Contribution Agreement and all Ancillary Agreements (a) constitute the entire
agreement and supersede conflicting provisions set forth in all other prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof, (b) may be executed in several
counterparts, each of which will be deemed an original and all of which shall
constitute one and the same instrument and (c) shall be governed in all
respects, including validity, interpretation and effect, by the laws of the
State of New York without giving effect to the conflict of law provisions
thereof.
7.3 ASSIGNABILITY. This Omnibus Contribution Agreement shall be
binding upon, and shall be enforceable by and inure to the benefit of, the
parties hereto and their respective heirs, legal representatives, successors and
assigns; PROVIDED, HOWEVER, that this Omnibus Contribution Agreement may not be
assigned (except by operation of law) by any party without the prior written
consent of the other parties, and any attempted assignment without such consent
shall be void and of no effect, except that the Operating Partnership, and REIT
may assign their rights and obligations hereunder to an affiliate.
7.4 TITLES. The titles and captions of the Articles, Sections and
paragraphs of this Omnibus Contribution Agreement are included for convenience
of reference only and shall have no effect on the construction or meaning of
this Omnibus Contribution Agreement.
7.5 THIRD PARTY BENEFICIARY. No provision of this Omnibus
Contribution Agreement is intended, nor shall it be interpreted, to provide or
create any third party beneficiary rights or any other rights of any kind in any
customer, affiliate, stockholder, partner, member, director, officer or employee
of any party hereto or any other person or entity, provided, however, that
Sections 5.3 and 7.3 and 7.11 of this Omnibus Contribution Agreement shall be
enforceable by and shall inure to the benefit of the persons described therein.
7.6 SEVERABILITY. If any provision of this Omnibus Contribution
Agreement, or the application thereof, is for any reason held to any extent to
be invalid or unenforceable, the remainder of this Omnibus Contribution
Agreement and application of such provision to other persons or circumstances
will be interpreted so as reasonably to effect the intent of the parties hereto.
The parties further agree to replace such void or unenforceable provision of
this Omnibus Contribution Agreement with a valid and enforceable provision that
will achieve, to the extent possible, the economic, business and other purposes
of the void or unenforceable provision and
20
to execute any amendment, consent or agreement deemed necessary or desirable by
the Operating Partnership to effect such replacement.
7.7 EQUITABLE REMEDIES. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Omnibus
Contribution Agreement were not performed in accordance with their specific
terms or were otherwise breached. It is accordingly agreed that the parties
shall be entitled to an injunction or injunctions to prevent breaches of this
Omnibus Contribution Agreement and to enforce specifically the terms and
provisions hereof in any federal or state court located in New York (as to which
the parties agree to submit to jurisdiction for the purposes of such action),
this being in addition to any other remedy to which they are entitled under this
Omnibus Contribution Agreement or otherwise at law or in equity.
7.8 ATTORNEYS' FEES. In connection with any litigation or a court
proceeding arising out of this Omnibus Contribution Agreement, the prevailing
party shall be entitled to recover all costs incurred, including reasonable
attorneys' fees and legal assistants' fees and costs whether incurred prior to
trial, at trial, or on appeal.
7.9 NOTICES. Any notice or demand which must or may be given under
this Omnibus Contribution Agreement or by law shall, except as otherwise
provided, be in writing and shall be deemed to have been given (a) when
physically received by personal delivery (which shall include the confirmed
receipt of a telecopied facsimile transmission), or (b) three (3) business days
after being deposited in the United States certified or registered mail, return
receipt requested, postage prepaid, or (c) one (1) business day after being
deposited with a nationally known commercial courier service providing next day
delivery service (such as Federal Express); addressed and delivered or
telecopied in the case of a notice to the Operating Partnership at the following
address and telecopy number:
Macklowe Properties, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
21
and addressed and delivered or telecopied, in the case of a notice to a
Contributor, at the address and telecopy number set forth under such
Contributor's name in the Contributor's Signature Page hereto.
7.10 DIRECT CONTRIBUTIONS AND MERGERS. The parties acknowledge and
agree that the REIT and the Operating Partnership may decide to purchase one or
more of the Assets (i) by a Direct Contribution from the Asset Entity that
beneficially owns it or (ii) by way of a Merger of such Asset Entity with and
into the REIT or the Operating Partnership or any of their respective
affiliates, which transaction may be in conjunction with a contribution of an
Interest. In order to facilitate any such Direct Contribution or Merger without
the need for further consent or action of the Contributors and Asset Entities
and without such Direct Contribution or Merger causing a violation of any
relevant partnership agreement, each Contributor by its execution hereof with
respect to each Asset Entity in which an Interest owned by Contributor
represents a direct or indirect interest, gives such consent as is necessary
(under the partnership agreement of the applicable Asset Entity and under the
partnership agreement of any other partnership that has a direct or indirect
interest in such Asset Entity, to the extent Contributor is a partner of any
such partnership) to cause such Asset Entity to have authority to (i) transfer
all or substantially all of the assets (including an Asset) of such Asset Entity
to the REIT or the Operating Partnership on such terms and conditions as such
Asset Entity and the REIT or the Operating Partnership may agree or (ii) to
merge with and into the REIT or the Operating Partnership, PROVIDED, HOWEVER,
that in either such case the Contributor will receive, in respect of its
Interest in the Asset of such Asset Entity, the value (in cash, Common Stock
and/or Units) set forth for such Asset in such Contributor's Supplemental
Acquisition Exhibit.
The terms "partnership," "partner" and "partnership agreement" in this Section
7.10 and in Section 7.11 shall in all cases also refer to limited liability
companies, members and operating agreements or similar organizational documents.
7.11 WAIVER OF RIGHTS; CONSENTS WITH RESPECT TO PARTNERSHIP
INTERESTS.
(a) Each Contributor acknowledges that the agreements contained
herein and the transactions contemplated hereby and any actions taken in
contemplation of the transactions contemplated hereby may conflict with, and may
not have been contemplated by, the partnership agreement of one or more
partnerships in which one or more of such Contributor's Interests represents a
direct or indirect interest or another agreement among one or more holders of
such Interests or one or more of the partners of any such partnership. With
respect to each partnership in which an Interest of a Contributor represents a
direct or indirect interest, each Contributor expressly gives all Consents (and
any consents necessary to authorize the proper parties in interest to give all
Consents) and Waivers necessary or desirable to facilitate any Conveyance Action
relating to such partnership (as such terms are hereinafter defined).
As used herein, the term "Conveyance Action" means, with respect to
any partnership having a direct or indirect ownership interest in any Asset, (i)
the conveyance or
22
agreement to convey by a partner thereof or by any holder of an indirect
interest therein (whether or not such partner or holder is a Contributor
hereunder) directly, by Direct Contribution, Merger or otherwise of its direct
or indirect interest in such partnership to the Operating Partnership or REIT or
(ii) the entering into by any such partner or holder of any agreement relating
to (x) the formation of the Operating Partnership or the REIT, or (y) the direct
or indirect acquisition by the Operating Partnership or REIT of any such direct
or indirect interest or (iii) the taking by any such partner or holder of any
action necessary or desirable to facilitate any of the foregoing, including,
without limitation, the following (provided that the same are taken in
furtherance of the foregoing): any sale or distribution to any person of a
direct or indirect interest in such partnership, the entering into any agreement
with any person that grants to such person the right to purchase a direct or
indirect interest in such partnership, and the giving of the Consents and
Waivers contained in this Section 7.11 or consents or waivers similar thereto in
form or purpose. As used herein, the term "Consents" means, with respect to any
such partnership, any consent necessary or desirable under the partnership
agreement of such partnership or any other agreement among all or any of the
holders of interests therein or any other agreement relating thereto or referred
to therein (i) to permit any and all Conveyance Actions relating to such
partnership or to amend such partnership agreement and/or other agreements so
that no provision thereof prohibits, restricts, impairs or interferes with any
Conveyance Action (such amendments to include, without limitation, the deletion
of provisions which cause a default under such agreement if interests therein
are transferred for cash), (ii) to admit the Operating Partnership as a
substitute limited partner or general partner of such partnership upon the
Operating Partnership's acquisition of a limited or general partnership interest
therein, respectively, and to adopt such amendment as is necessary or desirable
to effect such admission, (iii) to adopt any amendment as may be deemed
desirable by the Operating Partnership, either simultaneously with or
immediately prior to the acquisition of any interest therein, and (iv) to
continue such partnership following the transfer of interest therein to the
Operating Partnership. As used herein, the term "Waivers" means, with respect
to a partnership of which an Interest of a Contributor represents a direct or
indirect interest, the waiving of any and all rights that such Contributor may
have with respect to, and (to the extent possible) that any other person may
have with respect to, or that may accrue to such Contributor or other person
upon the occurrence of, a Conveyance Action relating to such partnership,
including, but not limited to, the following rights: rights of notice, rights to
response periods, rights to purchase the direct or indirect interests of another
partner in such partnership or to sell such Contributor's or other person's
direct or indirect interest therein to another partner, rights to sell such
Contributor's or other person's direct or indirect interest therein at a price
other than as provided herein, or rights to prohibit, limit, invalidate,
otherwise restrict or impair any such Conveyance Action or to cause a
termination or dissolution of such partnership because of such Conveyance
Action. Each Contributor further covenants that such Contributor will take no
action to enjoin, or seek damages resulting from, any Conveyance Action by any
holder of a direct or indirect interest in a partnership in which an Interest of
such Contributor represents a direct or indirect interest. The Waivers and
Consents contained in this Section 7.11 shall terminate upon the termination of
this Omnibus Contribution Agreement, except as to transactions completed
hereunder prior to termination.
23
(b) Each Contributor by its execution hereof (i) with respect to
each Asset Entity in which an Interest owned by Contributor represents a direct
or indirect interest therein and with respect to which the Operating Partnership
acquires all of the ownership interests therein gives such consent as is
necessary to cause each such Asset Entity, as applicable, to have authority to
transfer the Assets of such Asset Entity to the Operating Partnership on such
terms and conditions as such Asset Entity and the Operating Partnership may
agree; and (ii) agrees that such Contributor's Consideration may be reduced to
reflect such direct transfer of assets and the consequent receipt of Units
and/or cash directly by such Asset Entity, provided that the total consideration
to be received by such Contributor either directly hereunder or indirectly
through the receipt of Units and or/cash by an Asset Entity shall not be less
than Contributor's Consideration.
(c) Each Contributor by its execution hereof gives such consent as
is necessary to cause, with respect to the partnership agreement of each
partnership in which an Interest of such Contributor represents, directly or
indirectly, a limited partner or general partner interest, an amendment thereto
to enable such partnership, to the extent permissible under applicable law, (i)
to admit the Operating Partnership as a substitute limited partner therein
and/or a substitute general partner therein if the Operating Partnership
acquires a limited partnership interest or a general partnership interest in
such partnership, respectively, (ii) to redeem the interest of any other partner
therein who has not agreed to become a party to this Omnibus Contribution
Agreement or a similar contribution agreement with the Operating Partnership,
(iii) to transfer to all partners thereof, including any partner who has not
agreed to become a party to this Omnibus Contribution Agreement, cash and/or
Units (provided that such Contributor receives as a result of all such
distributions and the direct payment of consideration hereunder, an amount of
cash and/or Units that is in conformity with the Consideration of such
Contributor provided for herein), and thereafter, at the Operating Partnership's
option, to dissolve, and (iv) any such other amendment as the Operating
Partnership may deem desirable, provided that such amendment occurs
simultaneously with or immediately prior to the acquisition of the applicable
partnership interest and, provided further, that such amendment will not result
in any increased liability on the part of any Contributor hereunder or under the
applicable partnership agreement. The Attorney-in-Fact may on behalf of each
Contributor execute such consents, amendments or other instruments as it deems
necessary or desirable in connection with the foregoing.
7.12 LEGENDING. Each certificate, if any, representing the Common
Stock and/or Units (and any Common Stock that might be exchanged therefor) shall
bear a legend substantially in the form set forth below:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION, UNLESS THE TRANSFEROR DELIVERS TO THE COMPANY AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY, TO THE EFFECT THAT THE PROPOSED SALE,
TRANSFER OR OTHER
24
DISPOSITION MAY BE EFFECTED WITHOUT REGISTRATION UNDER THE ACT AND UNDER
APPLICABLE STATE SECURITIES OR "BLUE SKY" LAWS.
7.13 CONFIDENTIALITY. Each Contributor agrees to keep all
information regarding the transactions contemplated herein strictly
confidential. No Contributor will issue any press release or other public
communication of any kind relating to the IPO or the transactions contemplated
herein.
7.14 COMPUTATION OF TIME. Any time period provided for herein which
shall end on a Saturday, Sunday or legal holiday shall extend to 5:00 p.m. of
the next full business day. All times are Eastern Time.
7.15 SURVIVAL. It is the express intention and agreement of the
parties hereto that the representations, warranties and covenants of each
Contributor set forth in this Omnibus Contribution Agreement shall survive the
consummation of the transactions contemplated hereby, subject to any limitation
on the duration of such survival as maybe expressly set forth herein.
7.16 TIME OF THE ESSENCE. Time is of the essence with respect to
all obligations of Contributor under this Omnibus Contribution Agreement.
25
IN WITNESS WHEREOF, each of the parties hereto has executed this
Omnibus Contribution Agreement, or caused the Omnibus Contribution Agreement to
be duly executed on its behalf, as of the date first written above.
Macklowe Properties, L.P.
By: Macklowe Properties, Inc.,
its General Partner
By:
-----------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Chairman of the Board and
Chief Executive Officer
Macklowe Properties, Inc.
By:
-----------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Chairman of the Board and
Chief Executive Officer
26
[SIGNATURE PAGES AND SUPPLEMENTAL ACQUISITION EXHIBITS]
[FOR]
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
AWUJ, LLC
P.A.L.W. LLC
MAK West 55th Street Associates, L.P.
Regent Holding LLC
Macklowe Properties, LLC
▇▇▇▇ - ▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ Company
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Co., L.P.
Macklowe Properties, Inc.
AZIW LLC
HEW - Rad Realty Corp.
Nuborn Assets Co., L.P.
27
EXHIBIT A
CONTRIBUTORS
1. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
2. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
3. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
4. ▇▇▇▇▇▇ ▇▇▇▇
5. AWUJ, LLC
6. P.A.L.W. LLC
▇. ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Associates, L.P.
8. Regent Holding LLC
9. Macklowe Properties, LLC
10. ▇▇▇▇ - ▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ Company
11. ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Co., L.P.
12. Macklowe Properties, Inc.
13. AZIW LLC
14. HEW - Rad Realty Corp.
15. Nuborn Assets Co., L.P.
28
EXHIBIT B
ASSETS, INTERESTS, AND OTHER PROPERTIES CONTRIBUTED
1. 100% of the interest in ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, LLC which owns the fee
interest in Avenue of the ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇)
2. The fee interest in ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
3. 100% of the interest in ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Co., L.P. which owns the fee
interest in ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
4. The fee interest in Two Grand Central Tower
5. 100% of the interest in 540 Acquisition Co., LLC which owns the leasehold
interest in ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
6. 100% of the interest in ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇, LLC which owns the fee
interest in ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
7. 50% of the interest in York 72 Associates, L.P. which owns the fee
interest in Riverterrace
8. 100% of the interest in Formerly Maxwells, LLC which owns the fee interest
in ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
9. 100% of the interest in 40 West 55th LLC which owns the fee interest in ▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
10. 100% of the interest in 308 East 53 LLC which owns the fee interest in
▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇. 100% of the interest in ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, LLC which owns the fee
interest in ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
12. 100% of the interest in 907 M LLC which owns the leasehold interest for
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
13. 100% of the interest in YNDA LLC which owns the leasehold interest for ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
14. 100% of the interest in I5NO, LLC which owns the leasehold interest for
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
B-1
15. The fee interest in ▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
16. The fee interest in ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
17. 100% of the interest in NX Cellphone LLC which owns the fee interest in ▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
18. 100% of the interest in ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Associates, L.P. which owns
the fee interest in ▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
19. The contract right to purchase ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
20. The contract right to purchase ▇▇▇▇ ▇▇▇▇▇▇▇▇
21. 100% of the interest in ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Co., L.P. which owns the fee
interest in ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
22. 100% of the interest in RATL, LLC which owns the fee interest in ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
23. 100% of the fee interest in ▇▇▇-▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
24. 79% of the interest in LLIW, LLC which owns a mortgage note secured by ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
25.. 100% of the interest in 400 Madison, LLC which owns the fee interest in
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
26. The contract right to purchase ▇▇-▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
27. 100% of the interest in NIPM LLC which owns the fee interest in ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
28. The contract option to a ground interest in ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇.
B-2
EXHIBIT C
EXCLUDED INTERESTS
1. 50% interest in Rivertower
2. 50% interest in ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
3. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
4. ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
5. ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
6. ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
7. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
8. Development condominium project on ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
9. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
C-1
EXHIBIT D
ASSET ENTITIES
ASSET ENTITIES
1. ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, LLC
2. ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Corp.
3. ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Co., L.P.
4. Regent Holding LLC
5. 540 Acquisition Co., LLC
6. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇, LLC
7. York 72 Associates, L.P.
8. Formerly Maxwells, LLC
9. 40 West 55th LLC
10. 308 East 53 LLC
11. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, LLC
12. 907 M LLC
13. YNDA LLC
14. 15NO, LLC
15. ▇▇▇▇-▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ Company
16. ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Co., L.P.
17. NX Cellphone LLC
18. ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Associates, L.P.
19. Macklowe Properties, Inc.
D-1
20. AZIW LLC
21. RATL, LLC
22. ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Co., L.P.
23. P.A.L.W., LLC
24. Hew-Rad Realty Corp.
25. Manhattan Pacific Management Co., Inc.
26. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLC
27. LLIW, LLC
28. NIPM, LLC
D-2
EXHIBIT E
PERMITTED ENCUMBRANCES
E-1
EXHIBIT F
AGREEMENT OF LIMITED PARTNERSHIP OF
THE OPERATING PARTNERSHIP
F-1
EXHIBIT G
INVESTOR QUESTIONNAIRE
ACCREDITED INVESTOR QUESTIONNAIRE AND REPRESENTATION LETTER
The information being requested is required in order to determine whether you
will qualify as an "accredited investor" pursuant to Regulation D of the
Securities Act of 1933, as amended (the "Securities Act").
You understand that this questionnaire is merely a request for information and
is not an offer to sell or a solicitation of an offer to buy securities. ALL
INFORMATION CONTAINED IN THIS QUESTIONNAIRE WILL BE TREATED CONFIDENTIALLY.
The undersigned qualifies as an "accredited investor" pursuant to Regulation D
under the Securities Act (check the appropriate description(s)):
____ a) A trust with total assets in excess of US$5 million not formed for
the specific purpose of investing in the Macklowe Properties, Inc. a
Maryland corporation (the "REIT"), or any of its subsidiaries, whose
purchase is directed by a person with such knowledge and experience
in financial and business matters as to be capable of evaluating the
merits and risks of an investment in the REIT or any of its
subsidiaries;
____ b) An employee benefit plan within the meaning of ERISA if the decision
to invest in the REIT or any of its subsidiaries is made by a plan
fiduciary, as defined in Section 3(21) of ERISA, which is either a
bank, savings and loan association, insurance company, or
registered investment adviser, or if the employee benefit plan has
total assets in excess of US$5 million or, if a self directed plan,
with investment decisions made solely by persons that are accredited
investors;
____ c) a natural person who had an individual income in excess of $200,000
in each of the two most recent years or joint income with his or her
spouse in excess of $300,000 in each of those years and who
reasonably expects to reach the same income level in the current
year;
NOTE: FOR THIS PURPOSE, "INDIVIDUAL INCOME" MEANS ADJUSTED GROSS
INCOME, AS REPORTED FOR FEDERAL INCOME TAX PURPOSES, LESS ANY
INCOME ATTRIBUTABLE TO A SPOUSE OR TO PROPERTY OWNED BY A SPOUSE,
INCREASED BY THE FOLLOWING AMOUNTS (BUT NOT INCLUDING ANY AMOUNTS
ATTRIBUTABLE TO A SPOUSE OR TO PROPERTY OWNED BY A SPOUSE): (I)
THE AMOUNT OF ANY EXCLUSION FOR TAX-EXEMPT INTEREST UNDER SECTION
103 OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"), (II) THE
AMOUNT OF ANY LOSSES CLAIMED AS A LIMITED PARTNER IN A
G-1
LIMITED PARTNERSHIP AS REPORTED ON SCHEDULE E OF FORM 1040, (III)
THE AMOUNT OF ANY DEDUCTION, INCLUDING THE ALLOWANCE FOR
DEPLETION, UNDER SECTION 611, ET SEQ., OF THE CODE AND (IV) THE
AMOUNT OF ANY DEDUCTION FOR LONG-TERM CAPITAL GAINS UNDER SECTION
1202 OF THE CODE.
____ d) a natural person whose individual net worth, or joint net worth with
his or her spouse, exceeds $1,000,000; or
NOTE: FOR THIS PURPOSE, "INDIVIDUAL NET WORTH" MEANS THE EXCESS OF
TOTAL ASSETS AT FAIR MARKET VALUE (INCLUDING PRINCIPAL RESIDENCE)
OVER TOTAL LIABILITIES.
____ e) Any entity in which all of the equity owners are accredited
investors.
Signature: ________________________ Dated: _____________, 1998
Name: ________________________
Address: ________________________
________________________
________________________
Social Security No.: ___________________
G-2
EXHIBIT H
REGISTRATION RIGHTS AGREEMENT
H-1
EXHIBIT I
DESIGNATED PROPERTIES
PROPERTY LENGTH
I-1
EXHIBIT J
MAINTENANCE OF INDEBTEDNESS
CONTRIBUTOR DEBT ALLOCATION
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ To Be Agreed Upon By the
Contributors and the Operating
Partnership to the Final
Closing
▇▇▇▇▇▇ ▇▇▇▇ To Be Agreed Upon By the
Contributors and the Operating
Partnership to the Final
Closing
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ To Be Agreed Upon By the
Contributors and the Operating
Partnership to the Final
Closing
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ To Be Agreed Upon By the
Contributors and the Operating
Partnership to the Final
Closing
I-2