EXHIBIT ▇▇-▇
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▇▇▇ ▇▇▇▇ Strategic Partners, L.P.
(A Delaware Limited Partnership)
CONTRIBUTION AGREEMENT
SECTION 1
SUBSCRIPTION; CONTRIBUTED PROPERTY
1.1 Subscription. Subject to the terms and conditions of
this Contribution Agreement (the "Contribution Agreement"), the undersigned
(the "Contributor") hereby subscribes for and agrees to acquire a limited
partnership interest ("Interest") in Oak Hill Strategic Partners, L.P., a
Delaware limited partnership (the "Partnership"), pursuant to the terms of
that certain Amended and Restated Agreement of Limited Partnership of Oak
Hill Strategic Partners, L.P., dated as of August 26, 1996, as heretofore
amended (the "Partnership Agreement"). In exchange for and in
consideration of the Interest, the Contributor hereby agrees to (i)
contribute to the capital of the Partnership, the membership interest
which, at the time of the Closing, it shall own in 237 Park Partners,
L.L.C. (the "Contributed Property"), it being agreed that, for purposes of
Contributor's subscription, the foregoing shall be valued at $505,050, and
(ii) take any and all of the other actions set forth herein which are
required of it to be taken (including, without limitation, the actions set
forth in Section 1.2(b) hereof).
1.2 Closing. (a) Unless otherwise agreed to by the parties
hereto, the closing (the "Closing") of the transactions described herein
shall occur simultaneous to, and in the same place as, the closing under
the Restructuring Agreement (as defined below).
(b) At the Closing, the Contributor shall (i) deliver, convey
and contribute the Contributed Property for transfer to the Partnership or
its designee (by instrument or instruments as the Partnership shall
reasonably request); (ii) deliver the document described in Section 1.3(a)
below; and (iii) execute and become a party to the Partnership Agreement.
(c) At the Closing, the Partnership shall admit the
Contributor as a limited partner in accordance with the Partnership
Agreement and the terms specified in Section 1.3 hereof.
1.3 Election. (a) In connection with the consummation of the
transactions described herein, the Contributor shall, at the Closing,
deliver a document containing notice to the Partnership relating to which
"Class" of "Book Capital Account" (as such terms are defined in the
Partnership Agreement) it wishes to have the General Partner (as defined in
the Partnership Agreement) maintain in respect of its Interest.
(b) The General Partner hereby agrees that it shall notify
the Contributor in a timely fashion of (i) the establishment of the initial
balance in the Contributor's Book Capital Account and Tax Capital Account
(as defined in Article I of the Partnership Agreement), and (ii) the
respective percentages of the total Book Capital Account and Tax Capital
Account represented thereby.
(c) It is hereby acknowledged and agreed that no certificates
will be issued for the Interest acquired by the Contributor hereunder.
SECTION 2
CONTRIBUTOR REPRESENTATIONS, WARRANTIES AND COVENANTS
2.1 Certain Contributor Representations, Warranties and
Covenants. In addition to the representations, warranties and covenants
contained in that certain Restructuring Agreement (the "Restructuring
Agreement") dated as of October 27, 1999, by and among the Partnership and
the Contributor, among other parties, the Contributor hereby acknowledges,
represents and warrants to, and agrees with, the Partnership, as of the
date hereof and as of the Closing, as follows:
(a) If the Contributor is a corporation, partnership, trust,
estate or other entity, (i) it is duly organized, validly existing and in
good standing under the laws of the jurisdiction in which it is organized,
(ii) it is empowered, authorized and qualified to subscribe hereunder, to
commit capital to the Partnership hereunder and to become a limited partner
in, and, subject to the terms and conditions of the Partnership Agreement,
to make its Capital Contribution to the Partnership and (iii) the person
signing this Contribution Agreement and the Partnership Agreement on behalf
of such entity has been duly authorized by such entity to do so and has the
power to delegate authority pursuant to a power of attorney to be granted
under the Restructuring Agreement. If the Contributor is an individual,
the Contributor is of legal age to execute this Contribution Agreement and
the Partnership Agreement and is legally competent to do so.
(b) The Contributor has the full right, power and authority
to enter into this Contribution Agreement and the Partnership Agreement and
to carry out and perform its obligations hereunder and thereunder. Each of
this Contribution Agreement and the Partnership Agreement have been duly
authorized and have been duly executed and delivered by or on behalf of the
Contributor and, assuming the due authorization, execution and delivery of
each of them by the other parties hereto and thereto, such Agreements
constitute a valid and binding instrument or agreement of the Contributor.
(c) No consent, approval, authorization or order of, or
filing, registration or qualification with, any court or governmental
agency or body is required for the consummation by the Contributor of the
transactions on its part contemplated herein.
(d) The Contributor is acquiring the Interest for the
Contributor's own account as principal for investment and not with a view
to the distribution or sale thereof, subject to any requirement of law that
its property at all times be within its control.
(e) The Contributor has been given the opportunity to ask
questions of, and receive answers from, the General Partner and its
personnel relating to the Partnership, concerning the terms and conditions
of the transaction contemplated hereby and other matters pertaining to the
investment contemplated hereunder, and has had access to such financial and
other information concerning the Partnership as it has considered necessary
in order to make its decision to invest in the Partnership and has availed
itself of this opportunity to the full extent desired.
(f) No representations or warranties have been made to the
Contributor with respect to the investment contemplated hereby or the
Partnership other than the representations of the Partnership set forth
herein and in the Restructuring Agreement and the Contributor has not
relied upon any representation or warranty not provided herein or therein
in making this subscription.
(g) If the Contributor is not a United States Person (as
defined below), the Contributor has heretofore notified the Partnership in
writing of such status. For this purpose, "United States Person" means a
citizen or resident of the United States, a corporation, partnership or
other entity created or organized in or under the laws of the United States
or any political subdivision thereof, or an estate or trust the income of
which is subject to United States federal income taxation regardless of its
source.
(h) Except as expressly set forth in the Restructuring
Agreement, neither the execution, delivery and performance of this
Contribution Agreement or of the Partnership Agreement, nor the
contribution of the Contributed Property being made by the Contributor, nor
the consummation of any other of the transactions herein contemplated by
the Contributor or the fulfillment of the terms hereof or thereof by the
Contributor, will (i) result in the creation or imposition of any security
interests, rights of first refusal or to acquire, claims, liens, pledges,
equities or encumbrances (collectively, "Encumbrances") upon any of the
assets of the Contributor pursuant to the terms or provisions of, or
conflict with, result in a breach or violation of, or constitute a default
(or an event which, with the giving of notice or the lapse of time or both,
would constitute a default) under, the organizational documents, charter or
by-laws of the Contributor (if the Contributor is a corporation,
partnership, trust, estate or other entity), or the terms of any indenture,
loan agreement, bond, note, evidence of indebtedness, mortgage, deed of
trust, lease, license, permit, franchise, certificate or other agreement or
instrument to which the Contributor or any of its subsidiaries is a party
or by which they or it are bound or to which any of their or its properties
are subject, or (ii) require any authorization or approval under or
pursuant to any of the foregoing, or (iii) violate in any material respect
any statute, treaty, rule, regulation, ordinance, judgment, order, writ,
ruling, injunction or decree applicable to the Contributor or any of its
subsidiaries of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Contributor or
any of its subsidiaries.
(i) The Contributor is not an entity exempt from federal
income taxation or subject to taxation on "unrelated business taxable
income" under Sections 511 and 512 of the Internal Revenue Code of 1986, as
amended (the "Code").
(j) All information furnished to the Partnership by or on
behalf of the Contributor is and will be true and correct in all material
respects and, to the knowledge of the Contributor, such information does
not and will not contain an untrue statement of a material fact or omit any
material fact required to be stated therein or necessary in order to make
the statements therein not misleading.
2.2 Contributor Representations, Warranties and Covenants
with Respect to Contributed Property. In addition to the representations,
warranties and covenants contained in the Restructuring Agreement, the
Contributor hereby acknowledges, represents and warrants to, and agrees
with, the Partnership, as of the date hereof and as of the Closing, as
follows:
(a) Except as otherwise expressly provided in the Agreement
of Limited Partnership of 1290 Partners, L.P. or the Operating Agreement of
237 Park Partners, L.L.C., the Contributor is the lawful owner of the
Contributed Property free and clear of any Encumbrances and upon
contribution and delivery of such Contributed Property as provided herein,
the Contributor will have conveyed good and marketable title to such
Contributed Property, free and clear of any Encumbrances whatsoever.
(b) No stamp or other issuance or transfer taxes or duties
are payable by or on behalf of the Partnership or the General Partner in
connection with the contribution of the Contributed Property by the
Contributor to the Partnership in the manner contemplated herein.
(c) None of the Contributed Property constitutes assets of an
employee benefit plan as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), whether or not such plan
is subject to ERISA, or a plan described in Section 4975(e)(1) of the Code.
(d) Except as otherwise expressly provided in the Agreement
of Limited Partnership of 1290 Partners, L.P. or the Operating Agreement of
237 Park Partners, L.L.C., the Contributed Property is not subject to any
restrictions upon its sale by the Partnership by reason of any agreement,
commitment or representation the Contributor has made in respect thereof,
or by reason of the Contributor's being in control of, controlled by or
under common control with the issuer(s) thereof within the meaning of the
Securities Act of 1933, as amended ("Securities Act"), or for any other
reason.
2.3 Investor's Awareness. In addition to the representations,
warranties and covenants contained in the Restructuring Agreement, the
Contributor hereby acknowledges that it understands the following:
(a) No federal or state agency has passed upon the Interest
or made any finding or determination as to the fairness of the investment
to be made by Contributor pursuant to the terms of this Contribution
Agreement. The Partnership Agreement has not and will not be filed with
the U.S. Securities and Exchange Commission (the "SEC") or with any
securities administrator under state securities laws.
(b) There are substantial risks incident to the acquisition
of the Interest.
(c) There are substantial restrictions on the transferability
of the Interest. Pursuant to the Partnership Agreement, the prior written
consent of the General Partner is required for all transfers of the
Interest. There will be no established market for the Interest and no
public market for the Interest will develop. The Interest will not be, and
investors in the Partnership will not have any rights to require that the
Interest be, registered under the Securities Act or the securities laws of
the various states and therefore the resale, pledge, assignment or other
disposition thereof will not be permitted unless such Interest is
subsequently registered or unless an exemption from such registration is
available (it being hereby agreed by the Contributor that the General
Partner may require (x) an opinion of Contributor's counsel with respect to
such exemption in form and substance satisfactory to the General Partner
and the General Partner's counsel, or (y) a favorable interpretive letter
from the SEC and a copy of the application on which it was based). As a
result of the foregoing, the Contributor may be required to hold the
Interest herein subscribed for and bear the economic risk of its investment
in the Partnership indefinitely and it may not be possible for the
Contributor to liquidate its investment in the Partnership.
(d) With respect to the tax and other legal consequences of
an investment in the Interest, the Contributor is relying solely upon the
advice of its own tax and legal advisors.
(e) As of the date hereof and at all times up to and
including the time immediately prior to its acquisition of the Interest,
the Contributor has and shall have such knowledge and experience in
financial and business matters such that the Contributor is and will be
capable of evaluating the merits and risks of the prospective investment.
(f) The Contributor has no need for liquidity in its
investment hereunder and has the ability to bear the economic risk of such
investment and to retain the Interest for the full term of the Partnership.
(g) The Contributor has reviewed the Partnership Agreement,
and understands the risks of, and other considerations relating to, an
acquisition of the Interest as well as the Partnership's investments and
the Partnership's objectives, policies and strategies.
Section 2.4Certain Contributor Covenants. (a) The
Contributor hereby covenants to deliver to the Partnership such information
relevant to the Contributor's acquisition of the Interest as is reasonably
requested by the Partnership, including, without limitation, information as
to certain matters under the Securities Act and the Investment Company Act
as the Partnership may reasonably request in order to ensure the
Partnership's compliance with such acts and the availability of any
exemption thereunder.
(b) The Contributor hereby agrees that each of the
representations, warranties and covenants made by it in this Contribution
Agreement will be deemed to have been reaffirmed by the Contributor as of
the Closing.
(c) The Contributor hereby covenants that it shall notify the
Partnership immediately upon its having knowledge of any facts or
circumstances that would make any of its representations or warranties
contained in this Contribution Agreement untrue or incorrect as of the
Closing.
(d) The Contributor hereby covenants that it shall not, and
shall not cause or permit any other person to, act in a manner that would
violate any covenant of the Contributor which is contained in this
Contribution Agreement.
SECTION 3
PARTNERSHIP REPRESENTATIONS
3.1 Partnership Representations. The Partnership hereby
represents, warrants and acknowledges to the Contributor, as of the date
hereof and as of the Closing, as follows:
(a) The Partnership is duly organized, validly existing and
in good standing as a limited partnership under the laws of the State of
Delaware, with full power and authority to enter into this Contribution
Agreement and to perform its obligations under this Contribution Agreement
and the Partnership Agreement. The Interest offered hereby and specified
pursuant to Section 1.3 hereof is a duly and validly issued limited
partnership interest in the Partnership.
(b) The Partnership is empowered, authorized and qualified to
enter into this Contribution Agreement and the Partnership Agreement, and
the person signing this Contribution Agreement and the Partnership
Agreement on behalf of the Partnership has been duly authorized by the
Partnership to do so. There is no outstanding judgment, decree,
injunction, rule, order or award of any court, arbitrator or governmental
agency or bureau against the Partnership or the General Partner that would
prevent the consummation of the transactions expressly provided for in this
Contribution Agreement or that would have a material adverse affect on the
Partnership or the General Partner.
(c) Each of this Contribution Agreement and the Partnership
Agreement have been duly authorized and have been or will be duly executed
and delivered by the Partnership and, assuming the due authorization,
execution and delivery of each of them by the other parties hereto and
thereto, such Agreements constitute or will constitute valid and binding
instruments or agreements of the Partnership. The General Partner has
delivered to the Contributor a true and complete copy of the Partnership
Agreement as in effect on the date hereof and, except for the transactions
contemplated by this Contribution Agreement, no amendment or modification
to such Partnership Agreement has been authorized or proposed by the
General Partner.
(d) Neither the execution, delivery and performance of this
Contribution Agreement or the Partnership Agreement by the Partnership, nor
the consummation of any other of the transactions herein contemplated by
the Partnership or the fulfillment of the terms hereof or thereof by the
Partnership, will (i) conflict with, result in a breach or violation of, or
constitute a default (or any event which, with the giving of notice or the
lapse of time or both, would constitute a default) under the organizational
documents of the Partnership or the terms of any indenture, loan agreement,
bond, note, evidence of indebtedness, mortgage, deed of trust, lease,
license, permit, franchise, certificate or other agreement or instrument to
which the Partnership is a party or by which it is bound or to which any of
its properties are subject, or (ii) require any authorization or approval
under or pursuant to any of the foregoing, or (iii) violate in any material
respect any statute, treaty, rule, regulation, ordinance, judgment, order,
writ, ruling, injunction or decree applicable to the Partnership of any
court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Partnership.
(e) The Partnership is in compliance with all of the terms of
the Partnership Agreement and is in compliance, in all material respect,
with all laws, rules and regulations applicable to the Partnership.
(f) No consent, approval, authorization of, or declaration or
filing with, any governmental agency or bureau on the part of the
Partnership, other than those that have been previously obtained, made or
given, is required for the valid execution and delivery of this
Contribution Agreement or the Restructuring Agreement and the transactions
expressly provided for herein and therein.
(g) Upon due authorization, execution and delivery of the
Partnership Agreement by the Contributor, the Contributor will be entitled
to all of the benefits of a Limited Partner under the Partnership Agreement
and, unless otherwise expressly provided in the Partnership Agreement, the
Delaware Revised Uniform Limited Partnership Act.
(h) Under existing federal income tax laws and regulations,
the Partnership will be classified as a partnership, and not as an
association taxable as a corporation for federal income tax purposes.
(i) As of the date hereof, the disclosure materials and the
financial statements of the Partnership contained therein do not contain an
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading.
(j) The audited balance sheet of the Partnership as of
December 31, 1998, the related audited statements of income and cash flows
for the year then ended, the unaudited balance sheet of the Partnership as
of September 30, 1999 and the related unaudited statements of income and
cash flows for the nine (9) months then ended (collectively, the
"Partnership Financial Statements") present fairly and accurately the
financial condition and results of operations of the Partnership at the
dates and for the periods indicated therein and were prepared in accordance
with generally accepted accounting principles ("GAAP"), consistently
applied, except that the unaudited Partnership Financial Statements are
subject to normal year-end audit adjustments and contain no footnotes. The
Partnership has no liabilities or obligations of any nature (whether
accrued, absolute, contingent or otherwise) required by GAAP to be set
forth on a consolidated balance sheet of the Partnership or in the notes
thereto and which, individually or in the aggregate, would have a material
adverse effect on the business, business prospects, financial condition or
results of operations of the Partnership. Since the date of the most
recent audited Partnership Financial Statements, the Partnership has
conducted its business only in the ordinary course (taking into account
prior practices, including the acquisition of securities and properties and
issuance of Partnership interests) and there has not been (i) any material
adverse change in the business, business prospects, financial condition or
results of operations of the Partnership, nor has there been any occurrence
or circumstance that, with the passage of time, would reasonably be
expected to result in such a material adverse change, (ii) any damage,
destruction or loss, whether or not covered by insurance, that has or would
have a material adverse effect on the business, business prospects,
financial condition or results of operation of the Partnership or (iii) any
change by the Partnership made prior to the date of this Contribution
Agreement in its accounting methods, principles or practices materially
affecting its assets, liabilities or business.
(k) No broker, investment banker, financial advisor or other
person is entitled to any broker's, finder's, financial advisor's or
similar fee or commission in connection with the transactions expressly
contemplated hereby based upon arrangements made by or on behalf of the
Partnership.
3.2 Certain Partnership Covenants. (a) The Partnership
hereby agrees that it shall use its best efforts to meet all future
requirements under applicable federal laws and regulations necessary to be
classified as a partnership, and not as an association taxable as a
corporation, for federal income tax purposes.
(b) The Partnership hereby agrees that each of the
representations, warranties and covenants made by it in this Contribution
Agreement will be deemed to have been reaffirmed by the Partnership as of
the Closing.
(c) The Partnership hereby agrees that it shall notify the
Contributor immediately upon its having knowledge of any facts or
circumstances that would make any of its representations or warranties
contained in this Contribution Agreement untrue or incorrect as of the
Closing.
SECTION 4
CONDITIONS TO CLOSING
4.1 Contributor Conditions to Closing. The Contributor's
obligations as set forth hereunder are subject to the fulfillment (or
waiver by the Contributor), prior to or at the Closing, of the following
conditions:
(a) Performance. The Partnership shall have duly performed
and complied in all material respects with all agreements and conditions
contained in this Contribution Agreement and in the Restructuring Agreement
required to be performed or complied with by it prior to or at the Closing,
and all representations and warranties of the Partnership herein and in the
Restructuring Agreement shall be true and correct as of such date.
(b) Concurrent Closing. All of the closing conditions set
forth in the Restructuring Agreement and related documents shall have been
satisfied as of the Closing and a closing thereunder shall be occurring
concurrently with the Closing.
(c) No Material Adverse Change. There shall not have
occurred any material adverse change in the business, business prospects,
financial condition or results of operations of the Partnership since the
date hereof.
4.2 Partnership Conditions to Closing. The Partnership's
obligations as set forth hereunder are subject to the fulfillment (or
waiver by the Partnership), prior to or at the time of the Closing, of the
following conditions:
(a) Performance. The Contributor shall have duly performed
and complied in all material respects with all agreements and conditions
contained in this Contribution Agreement and in the Restructuring Agreement
required to be performed or complied with by it prior to or at the Closing,
and all representations and warranties of the Contributor herein and in the
Restructuring Agreement shall be true and correct as of such date; and
(b) Concurrent Closing. All of the closing conditions set
forth in the Restructuring Agreement and related documents shall have been
satisfied as of the Closing and a closing thereunder shall be occurring
concurrently with the Closing.
SECTION 5
MISCELLANEOUS
5.1 Modification. Neither this Contribution Agreement nor
any provisions hereof shall be modified, changed, discharged or terminated
except by an instrument in writing signed by the party against whom any
such waiver, change, discharge or termination is sought.
5.2 Revocability. Except as otherwise provided by the
Restructuring Agreement, this Contribution Agreement may not be withdrawn
or revoked by the Contributor in whole or in part without the consent of
the Partnership.
5.3 Notices. All notices, consents, requests, demands,
offers, reports and other communications required or permitted to be given
pursuant to this Contribution Agreement shall be in writing and shall be
considered properly given and received when personally delivered to the
party entitled thereto, or when sent by facsimile or by overnight courier,
or seven (7) business days after being sent by certified United States
mail, return receipt requested, in a sealed envelope, with postage prepaid,
in each case, addressed, (i) if to the Partnership or the General Partner,
to F.W. Strategic Asset Management, L.P., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, and (ii) if to the Contributor, to the address set
forth below the Contributor's signature on the counterpart of this
Contribution Agreement which the Contributor originally executed and
delivered to the Partnership; provided, however, that any notice sent by
facsimile shall be promptly followed by a copy of such notice sent by mail
or overnight courier in the manner described herein. The Partnership, the
General Partner or the Contributor may change its address by giving notice
of such change to the other party hereunder. The Partnership and the
General Partner shall send a copy of all items given, sent or delivered to,
or received from, Contributor to JMB/NYC Office Building Associates, L.P.,
c/o JMB Realty Corporation, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇ (Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇).
5.4 Counterparts. This Contribution Agreement may be
executed in multiple counterpart copies, each of which shall be considered
an original and all of which shall constitute one and the same instrument
binding on all the parties, notwithstanding that all parties are not
signatories to the same counterpart.
5.5 Headings. The headings of the Sections of this
Contribution Agreement are inserted for convenience only and shall not be
deemed to constitute a part of this Contribution Agreement.
5.6 Successors. Except as otherwise provided herein, this
Contribution Agreement and all of the terms and provisions hereof shall be
binding upon and inure to the benefit of the parties and their respective
heirs, executors, administrators, successors, trustees and legal
representatives. If the Contributor is more than one person, the
obligation of the Contributor shall be joint and several and the
agreements, representations, warranties and acknowledgments herein
contained shall be deemed to have been made by and shall be binding upon
each such person and such person's heirs, executors, administrators,
successors, trustees and legal representatives.
5.7 Assignability. This Contribution Agreement shall not be
transferable or assignable by the Contributor in any manner whatsoever.
Any purported assignment of this Contribution Agreement shall be null and
void.
5.8 Confidentiality. (a) The Contributor shall, and shall
direct those of its affiliates, directors, officers, employees, attorneys,
accountants and advisors (the "Representatives") who have access to
Confidential Information (as defined below) to, keep confidential and not
disclose any Confidential Information without the express consent, (x) in
the case of Confidential Information acquired from the Partnership, of the
Partnership or, (y) in the case of Confidential Information acquired from
the General Partner or any other partner in the Partnership, the General
Partner or such other partner, unless (i) such disclosure shall be required
by applicable law, governmental rule or regulation, court order,
administrative or arbitral proceeding or by any bank regulatory authority
having jurisdiction over the Contributor or (ii) such disclosure is in
connection with any litigation against the Partnership, the Contributor,
any other partner in the partnership or the General Partner. Such
Confidential Information may be used by the Contributor only in connection
with Partnership matters.
(b) As used herein, "Confidential Information" shall mean any
information that the Contributor may acquire from the Partnership or the
General Partner which (i) is not already available through publicly
available sources of information (other than as a result of disclosure by
the Contributor), (ii) was not in the possession of, or known by, the
Contributor prior to its disclosure to the Contributor by the Partnership,
or (iii) does not become available to the Contributor on a non-confidential
basis from a third party, (so long as that such third party is not bound by
this Contribution Agreement or another confidentiality agreement with the
Partnership). Such Confidential Information may include, without
limitation, information that pertains or relates to (A) the business and
affairs of the General Partner or any other partner, (B) any investments or
proposed investments of the Partnership or (C) any other Partnership
matters.
(c) In the event that the Contributor or any Representative
of the Contributor is required to disclose any Confidential Information
pursuant to a subpoena, request for discovery or other civil or legal
process, the Contributor will use reasonable efforts to provide the
Partnership with prompt written notice so that the Partnership may seek a
protective order or other appropriate remedy and/or waive compliance with
the provisions of this Contribution Agreement, and the Contributor will
cooperate with the Partnership, at the expense of the Partnership, in any
effort any such person undertakes to obtain a protective order or other
remedy. In the event that such protective order or other remedy is not
obtained, or that the Partnership waives compliance with the provisions of
this Section 5.8, the Contributor and its Representatives will furnish only
that portion of the Confidential Information which is required and will
exercise reasonable efforts, at the expense of the Partnership, to obtain
reliable assurance that the Confidential Information will be accorded
confidential treatment.
(d) In its sole discretion, the General Partner may agree to
waive any or all of the provisions of this Section 5.8 with respect to the
Contributor.
(e) The General Partner and the Partnership may disclose the
identity of the Contributor only (i) in accordance with the restrictions
set forth in this section 5.8 or (ii) on a confidential basis to any other
partner or acquiror of the Interest.
(e) The provisions of this Section 5.8 shall survive the
termination of this Contribution Agreement and the formation and
dissolution of the Partnership, whether or not the Contributor is admitted
to the Partnership.
5.9 GOVERNING LAW. THIS CONTRIBUTION AGREEMENT AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE INTERPRETED AND
ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW
YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED WHOLLY WITHIN THAT
JURISDICTION.
5.10 Jurisdiction; Venue.
(a) All disputes arising out of, connected with, related to
or incidental to the transactions contemplated by, or the relationship
established between, the parties hereto in connection with this
Contribution Agreement, whether arising in contract, tort, equity or
otherwise, shall be resolved by the state or federal courts located in the
County of New York in the State of New York, and the parties hereby consent
and submit to the personal and subject matter jurisdiction of any state or
federal court located in the County of New York in the State of New York;
provided, however, that such disputes need not be brought in such courts if
the defendant in such suit is not subject to personal jurisdiction in the
State of New York. Each party hereby agrees that legal process in any such
action or proceeding may be served in accordance with clause (c) hereof and
the notice procedure set forth in Section 5.3 hereof. Nothing in this
Section 5.10 shall affect the right of the Partnership to serve legal
process in any other manner permitted by law.
(b) The parties irrevocably waive, to the fullest extent
permitted by law, any objection that they may now or hereafter have to the
laying of venue of any such action or proceeding in the courts of the State
of New York located in the County of New York, or the Federal courts
located in the County of New York in the State of New York.
(c) The Contributor hereby agrees and covenants that, if the
Contributor is a non-United States person, it shall appoint an authorized
agent that at all times shall have an office located in the State of New
York upon which process may be served in any action or proceeding against
the Contributor relating in any way to this Contribution Agreement and
shall deliver the acceptance of such appointment to the Partnership. The
Contributor further agrees that service of process upon such authorized
agent together with written notice of said service to the Contributor by
the person serving the same shall be deemed in every respect effective
service of process upon the Contributor in any such action or proceeding.
The Contributor may appoint a successor authorized agent and, upon delivery
to the Partnership of acceptance of such appointment by such a successor,
the appointment of the prior authorized agent shall terminate. The
Contributor further agrees and covenants that it shall take any and all
action, including the filing of any and all documents and instruments as
may be necessary to continue the designation and appointment of the
authorized agent described in this paragraph in full force and effect until
the later of the termination of this Contribution Agreement or such time as
the Contributor no longer holds the Interest.
5.11 Severability. To the extent that any provision of this
Contribution Agreement shall be held to be invalid, illegal or
unenforceable, such provision shall be deemed severable and the validity,
legality and enforceability of the remaining provisions of this
Contribution Agreement shall not in any way be affected or impaired.
5.12 Entire Agreement. This Contribution Agreement, the
Partnership Agreement and the Restructuring Agreement constitute the entire
agreement among the parties hereto and thereto with respect to the subject
matter hereof and thereof and supersede all other prior agreements and
undertakings, both written and oral, among the parties, or any of them,
with respect to the subject matter hereof and thereof.
5.13 Survival of Representations, Warranties and Covenants.
The representations, warranties and covenants in Sections 2.1, 2.2, 2.3,
2.4, 3.1 and 3.2 shall survive the formation and dissolution of the
Partnership and the Contributor's admission as a Partner.
5.14 Termination. This Contribution Agreement shall terminate
in the event that the Restructuring Agreement is terminated in accordance
with its terms prior to the Closing; provided that Section 5.8 shall
survive any such termination.
IN WITNESS WHEREOF, the undersigned has executed this
Contribution Agreement as of the date first written above.
237/1290 Upper Tier Associates, L.P.
By: 237/1290 Upper Tier GP Corp.
By: _______________________________
Name:
Title:
Contributor's Name and Mailing Address
and Tax Identification Number:
_____________________________________________________
(Name)
_____________________________________________________
(Street)
_____________________________________________________
(City) (State) (Zip Code)
_____________________________________
(Telephone Number)
_____________________________________
(Facsimile Number)
_____________________________________________________
(Tax Identification or Social Security Number)
Contributor's Address for Notices
if Different from Address Above:
_____________________________________________________
(Street)
_____________________________________________________
(City) (State) (Zip Code)
_____________________________________
(Telephone Number)
_____________________________________
(Facsimile Number)
Status of the Contributor (check one):
[ ] General Partnership [ ] Trust
[ X ] Limited Partnership [ ] "Grantor" Trust
[ ] Corporation [ ] Estate
[ ] S Corporation [ ] Limited Liability Company
[ ] Individual [ ] Other (identify)______________
IN WITNESS WHEREOF, the Partnership has executed this
Contribution Agreement as of the ______ day of _____________________, 1999.
OAK HILL STRATEGIC PARTNERS, L.P.
By: F.W. STRATEGIC ASSET MANAGEMENT, L.P.,
General Partner
By: STRATEGIC GENPAR, INC., General Partner
By:
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Name:
Title: