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Title: |
Contribution Agreement |
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Entities: |
Bunker Hill Equity, LLC; International Business Machines Corp.; Library Square Associates, LLC; Maguire Partners - 355 S. Grand, LLC; Maguire Partners - Glendale, LLC; Maguire Properties, Inc.; Maguire Properties, LP; North Tower, LLC; Philadelphia Plaza - Phase II; Gibson, Dunn & Crutcher; Jones, Day, Reavis & Pogue; Latham & Watkins; Morrison & Foerster; White & Case LLP; Robert F. Maguire III |
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Date: |
2003 |
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Size: |
Preview shows 17KB of 378KB total |
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Price: |
$99 |
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ID: |
#267066 |
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================================================================================
CONTRIBUTION AGREEMENT
BY AND BETWEEN
ROBERT F. MAGUIRE III
AND THE CONTRIBUTORS LISTED ON EXHIBIT A
AND
MAGUIRE PROPERTIES, L.P.,
A MARYLAND LIMITED PARTNERSHIP
DATED AS OF NOVEMBER 11, 2002
================================================================================
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
PAGE
----
{S} {C}
RECITALS.......................................................................1
ARTICLE 1. CONTRIBUTION OF PARTNERSHIP INTERESTS AND EXCHANGE FOR
PARTNERSHIP UNITS...................................................2
Section 1.1 Contribution of Partnership Interests.........................2
Section 1.2 Contribution of Assets........................................3
Section 1.3 Excluded Assets...............................................3
Section 1.4 Assumed Liabilities...........................................3
Section 1.5 Consideration and Exchange of Partnership Units...............3
Section 1.6 Adjusted Consideration........................................4
Section 1.7 Treatment as Contribution.....................................4
Section 1.8 Allocation of Total Consideration.............................4
Section 1.9 Term of Agreement.............................................5
Section 1.10 Final Year Allocations........................................5
Section 1.11 Sale Limitations and Debt Guarantees..........................5
ARTICLE 2. CLOSING.............................................................6
Section 2.1 Conditions Precedent..........................................6
Section 2.2 Time and Place................................................7
Section 2.3 Closing Deliveries............................................7
Section 2.4 Closing Costs.................................................8
ARTICLE 3. REPRESENTATIONS AND WARRANTIES AND INDEMNITIES......................8
Section 3.1 Representations and Warranties of the Operating Partnership...8
Section 3.2 Representations and Warranties of Contributor.................9
Section 3.3 Indemnification...............................................9
ARTICLE 4. COVENANTS..........................................................10
Section 4.1 Covenants of Contributors....................................10
Section 4.2 Tax Covenants................................................11
ARTICLE 5. RELEASES AND WAIVERS...............................................12
Section 5.1 General Release of Operating Partnership.....................12
Section 5.2 General Release of Contributors..............................12
Section 5.3 Waiver of Section 1542 Protections...........................12
Section 5.4 Waiver of Rights Under Partnership Agreements; Consents
With Respect to Partnership Interests........................13
ARTICLE 6. POWER OF ATTORNEY..................................................14
Section 6.1 Grant of Power of Attorney...................................14
Section 6.2 Limitation on Liability......................................15
Section 6.3 Ratification; Third Party Reliance...........................15
ARTICLE 7. MISCELLANEOUS......................................................16
Section 7.1 Dispute Resolution...........................................16
Section 7.2 Further Assurances...........................................17
Section 7.3 Counterparts.................................................17
Section 7.4 Governing Law................................................17
Section 7.5 Amendment; Waiver............................................17
{/TABLE}
i
{PAGE}
{TABLE}
{S} {C}
Section 7.6 Entire Agreement.............................................17
Section 7.7 Assignability................................................17
Section 7.8 Titles.......................................................17
Section 7.9 Third Party Beneficiary......................................17
Section 7.10 Severability.................................................18
Section 7.11 Equitable Remedies...........................................18
Section 7.12 Confidentiality..............................................18
Section 7.13 Time Of The Essence..........................................18
Section 7.14 Reliance.....................................................18
Section 7.15 Survival.....................................................18
Section 7.16 Notice.......................................................19
{/TABLE}
ii
{PAGE}
EXHIBIT LIST
{TABLE}
{CAPTION}
SECTION FIRST
EXHIBITS REFERENCED
-------- -------------
{S} {C}
A Contributors' Partnership Interests and Contributed Assets......Recital D
B-1 Contribution and Assumption Agreement...........................1.1
B-2 Contribution and Assumption Agreement...........................1.2
C Form of Quitclaim...............................................1.1
D Representations, Warranties and Indemnities of Contributor......3.2
E Power of Attorney...............................................2.3(e)
F Sale Limitations and Debt Guarantee.............................1.12
G Form of Pledge Agreement........................................2.3(f)
H Form of Estoppel Certificate....................................2.3(k)
SCHEDULES
1.1 List of Excluded Notes and Related Agreements..................1.1
1.2 List of Contributed Assets.....................................1.2
1.4 List of Assumed Liabilities....................................1.4
2.1(e) List of Tenant Estoppels.......................................2.1(e)
APPENDICES
A Disclosure Schedule............................................3.2
{/TABLE}
iii
{PAGE}
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT (including all exhibits, hereinafter
referred to as this "Agreement") is made and entered into as of November 11,
2002 by and between Maguire Properties, L.P., a Maryland limited partnership
(the "Operating Partnership"), and Robert F. Maguire III, an individual ("RFM"),
each of the entities listed on Exhibit A attached hereto (each, a "Contributor"
and collectively, the "Contributors") and the other entities listed thereon.
RECITALS
A. The Operating Partnership desires to consolidate the ownership of a
portfolio of office and other properties (the "Participating Properties")
located in Southern California and Texas through a series of transactions (the
"Formation Transactions") whereby the Operating Partnership will acquire direct
or indirect interests in the Participating Properties by acquiring direct
interests in the Participating Properties (the "Property Interests") or,
directly or indirectly, some or all of the interests in certain limited
partnerships, certain limited liability companies and certain other entities
(collectively, the "Participating Partnerships") which currently own directly or
indirectly the Participating Properties, or a combination of the foregoing.
B. The Formation Transactions relate to the proposed initial public
offering (the "Public Offering") of the common stock of Maguire Properties,
Inc., a Maryland corporation (the "Company"), which will operate as a
self-administered and self-managed real estate investment trust ("REIT") within
the meaning of Section 856 of the Internal Revenue Code of 1986, as amended (the
"Code") and which is the sole general partner of the Operating Partnership.
C. The owners of the Property Interests and the partners and members of
the Participating Partnerships will either transfer their unencumbered Property
Interests or unencumbered interests in the Participating Partnerships, as
applicable, to the Operating Partnership in exchange for cash or contribute such
unencumbered interests directly to the Operating Partnership in exchange for
units of limited partnership interest ("Partnership Units") in the Operating
Partnership.
D. Each Contributor owns interests in certain of the Participating
Partnerships as set forth on Exhibit A (each, a "Partnership", and collectively,
the "Partnerships") which Partnerships own directly or indirectly interests in
certain of the Participating Properties as set forth on Exhibit A (each, a
"Property" and together the "Properties"). As used herein, "Partnership
Agreement" means the respective partnership agreement, limited liability company
agreement or membership agreement, as applicable, under which each Partnership
was formed (including all amendments or restatements).
E. Each Contributor desires to, and the Operating Partnership desires
each Contributor to, contribute to the Operating Partnership, all of its right,
title and interest, free and clear of all Liens (as defined in Exhibit D), as a
partner or member in each of the Partnerships, including, without limitation,
all of its voting rights and interests in the capital, profits and losses of the
Partnerships or any property distributable therefrom, constituting all of its
interests in and to the Partnerships (such right, title and interest in and to
the Partnerships are hereinafter collectively referred to as the "Partnership
Interests"), in exchange for Partnership Units, on the terms and subject to the
conditions set forth herein.
F. Each Contributor acknowledges that the Operating Partnership may
decide that, rather than acquiring all of the direct and indirect interests in
the entity that owns a certain Property or acquiring a Partnership Interest by
direct transfer, it is more desirable for the Operating Partnership to acquire a
particular Property by a direct contribution of such Property from the
Partnership that owns such Property (a "Direct Contribution"), or by a merger of
such Contributor (if such Contributor is an entity) or
1
{PAGE}
a Partnership with and into the Company, the Operating Partnership or an
affiliate of either of them (a "Merger"), or to divide a Partnership into more
than one partnership to facilitate the Formation Transactions (a "Division");
and each Contributor desires to give the Operating Partnership the right, in the
Operating Partnership's sole discretion, to engage in any Direct Contribution,
Merger or Division on the terms and conditions described herein without the need
to seek any further consent or action of such Contributor, and will give hereby
an irrevocable power of attorney as set forth in Article 6 hereof and
irrevocable consents as set forth in Section 5.4 hereof.
G. In addition to the contribution of Partnership Interests contemplated
hereby, as part of the Formation Transactions, one of the Contributors, Maguire
Partners Development, Ltd. (formerly Maguire/Thomas Partners Development, Ltd.)
("Development") desires to contribute certain management assets, including
contracts and employees, and liabilities to the Operating Partnership in
exchange for Partnership Units, and the Operating Partnership desires to acquire
such assets and liabilities. It is presently intended that the Operating
Partnership will contribute certain of these assets and liabilities to a taxable
REIT subsidiary within the meaning of Section 856(1) of the Code in exchange for
capital stock of such corporation.
H. The parties acknowledge that the Operating Partnership's acquisition
of the Partnership Interests, the Contributed Assets (as defined in Section
1.2(a) below) and the Assumed Agreements (as defined below), and the assumption
of the Assumed Liabilities (as defined in Section 1.4 below) is in connection
with and subject to the consummation of the Formation Transactions and the
Public Offering. It is understood that the Operating Partnership may acquire
interests in additional properties with the proceeds of the Public Offering.
NOW, THEREFORE, for and in consideration of the foregoing premises, and
the mutual undertakings set forth below, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
TERMS OF AGREEMENT
ARTICLE 1.
CONTRIBUTION OF PARTNERSHIP INTERESTS
AND EXCHANGE FOR PARTNERSHIP UNITS
Section 1.1 Contribution of Partnership Interests.
At the Closing (as defined in Section 2.2 herein) and subject to the
terms and conditions contained in this Agreement, each Contributor shall
contribute, transfer, assign, convey and deliver to the Operating Partnership,
absolutely and unconditionally, and free and clear of all Liens, all of its
Partnership Interests and Property Interests (if any), including all of such
Contributor's rights and interests to the Partnerships and all rights to
indemnification in favor of such Contributor under the agreements pursuant to
which such Contributor or its affiliates acquired the Partnership Interests and
Property Interests (if any) transferred pursuant to this Agreement; provided
however, that the Contributors are not contributing any of the related
promissory notes and other side letters and ancillary agreements listed on
Schedule 1.1. The contribution of each Contributor's Partnership Interests shall
be evidenced by a Contribution and Assumption Agreement in substantially the
form of Exhibit B-1 attached hereto. Furthermore, each Contributor shall execute
or shall cause each of its individual constituent partners and/or members (as
applicable) to execute and have duly acknowledged an individual quitclaim deed
for each Property in the form of Exhibit C quitclaiming to the Operating
Partnership any direct or indirect ownership interest in and to the Properties;
provided, however, any direct transfer of title to a Property shall be made by
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