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EXHIBIT 2.7
AGREEMENT FOR CONTRIBUTION OF INTERESTS
IN
TWO PENN PLAZA ASSOCIATES L.P.
BY AND AMONG
THE MENDIK COMPANY, L.P.,
THE PARTNERS OF TWO PENN PLAZA ASSOCIATES L.P.
AND
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
IN RELIANCE UPON CERTAIN EXEMPTIONS FROM REGISTRATION, THE UNITS TO BE ISSUED
HEREUNDER WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. ACCORDINGLY, NO UNITS MAY
BE SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED UNLESS SUBSEQUENTLY
REGISTERED UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR
UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE, AND UNLESS THE OTHER
TRANSFER RESTRICTIONS ON SUCH UNITS HAVE BEEN SATISFIED. CONTRIBUTORS SHOULD BE
AWARE THAT THEY WILL BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THEIR OWNERSHIP
OF UNITS FOR AN INDEFINITE PERIOD OF TIME.
IN MAKING AN INVESTMENT DECISION CONTRIBUTORS MUST RELY ON THEIR OWN EXAMINATION
OF THE PERSON OR ENTITY CREATING THE SECURITIES AND THE TERMS OF THE OFFERING,
INCLUDING THE MERITS AND RISKS INVOLVED. THESE SECURITIES HAVE NOT BEEN
RECOMMENDED BY ANY FEDERAL OR STATE SECURITIES COMMISSION OR REGULATORY
AUTHORITY. FURTHERMORE, THE FOREGOING AUTHORITIES HAVE NOT CONFIRMED THE
ACCURACY OR DETERMINED THE ADEQUACY OF THIS DOCUMENT. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
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AGREEMENT FOR CONTRIBUTION OF INTERESTS
[TWO PENN PLAZA]
THIS AGREEMENT for the Contribution of Interests (this "Agreement")
is made and entered into as of April 15, 1997, by and among The Mendik Company,
L.P. ("Operating Partnership"), a Delaware limited partnership, whose general
partner as of the date hereof is The Mendik Company, Inc., a Maryland
corporation, each of the parties listed on Exhibit A annexed hereto who executes
a Partner Consent (hereinafter defined) agreeing to become a party to this
Agreement (collectively referred to herein as "Contributors") and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ (in his capacity as a general partner of the Partnership (hereinafter
defined), the "General Partner").
WHEREAS, it is desired to consolidate (the "Consolidation") the
assets of Vornado Realty Trust, a Maryland real estate investment trust (the
"REIT"), and interests in seven general or limited partnerships or limited
liability companies of which the General Partner or an affiliate is a general
partner or managing member, together with the assets of Mendik Realty Company,
Inc. and Mendik Management Company, Inc., each a New York corporation and an
affiliate of the General Partner, with and into Operating Partnership.
WHEREAS, upon completion of and after the Consolidation, the REIT
will become and be the managing general partner of the Operating Partnership;
WHEREAS, Contributors are owners of interests (the "Contributed
Interests") in Two Penn Plaza Associates L.P., a New York limited partnership
(the "Partnership"), which Partnership owns land and improvements (the
"Property") known as ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇; and
WHEREAS, in connection with the consummation of the Consolidation,
the parties hereto desire that Operating Partnership and, if designated by
Operating Partnership, one or more special purpose subsidiary partnerships or
limited liability companies of Operating Partnership or one or more other
entities controlled by Operating Partnership (each a "Designated Subsidiary")
acquire all of the interests in the Partnership through the contribution of such
interests to Operating Partnership and/or one or more Designated Subsidiaries
upon the terms and conditions provided herein and simultaneously acquire all of
the interests in the Partnership owned by a major partner and its affiliates
(collectively, the "Major Partner") pursuant to an Agreement (the "Major Partner
Agreement") entered into between the Major Partner and FW/Mendik REIT L.L.C.,
which Major Partner Agreement shall be amended and assigned to Operating
Partnership and/or a Designated Subsidiary prior to the Closing (hereinafter
defined).
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises and covenants set forth herein, Operating Partnership, Contributors and
the General Partner hereby agree as follows:
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1. CONTRIBUTIONS. Upon the Closing, and subject to the satisfaction
or waiver by Operating Partnership of the conditions set forth in Section 7 of
this Agreement, Contributors shall contribute, convey and assign to Operating
Partnership (and/or Designated Subsidiary) and Operating Partnership (and/or
Designated Subsidiary) shall acquire from Contributors all of Contributors'
right, title and interest in the Contributed Interests (the "Contributions"),
including, without limitation, all of Contributors' interest in the profits,
losses, property and capital of the Partnership allocable to the Contributed
Interests, upon the terms and conditions set forth in this Agreement.
2. CONSIDERATION; DISTRIBUTIONS PRIOR TO CLOSING.
(a) In full consideration for the contribution of the
Contributed Interests, Operating Partnership shall deliver to Contributors (or
their designees as provided below) at the Closing, an aggregate of 48,379 units
of limited partnership interests ("Units") in Operating Partnership, such Units
being allocated among the Contributors as set forth on Exhibit A.
Prior to the Closing, subject to compliance with all
applicable securities laws, any Contributor that is a partnership may give
notice to the Operating Partnership to allocate all or a portion of the Units
otherwise issuable to it among its partners in a manner set forth in the notice
and to issue the Units directly to those partners, and any Contributor who holds
interests in which another person or entity has a beneficial interest may give
notice to the Operating Partnership to issue all or a portion of the Units
otherwise issuable to that Contributor to the beneficial owner of that interest.
In such event, as a condition to receiving any Units, any such partners of any
Contributor or any such beneficial holder shall execute a Partner Consent (the
"Partner Consent") in the form annexed to and made part of the Confidential
Solicitation of Consents and Private Placement Memorandum (the "Memorandum")
dated March 29, 1997 and shall make to the Operating Partnership the
representations and warranties and agreements in Section 6.7(a), (b), (c) and
(d) pursuant to an instrument reasonably satisfactory to the Operating
Partnership (in addition to the Partner Consent to be executed by the
Contributor).
(b) On the date of the Closing (the "Closing Date"), the
General Partner shall cause the Partnership to distribute to the Major Partner
an amount (estimated at $1,600,000) and to distribute to the General Partner, as
agent for the Contributors, an amount (estimated at $800,000 based on a value of
$52 per Unit), in each case sufficient to pay the Conveyance Taxes (hereinafter
defined) payable by the Major Partner or by the Contributors pursuant to Section
9(b) hereof, as the case may be, assuming that the Contributions hereunder and
under the Major Partner Agreement are treated as "qualifying REIT transfers"
under the laws referred to in Section 9(a) hereof.
(c) The Operating Partnership shall cause the Partnership to
pay any amounts collected by the Partnership after the Closing Date relating to
the period through the
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Closing Date with respect to refunds of real estate taxes paid by the
Partnership (after deducting any costs incurred by the Partnership or the
Operating Partnership in obtaining such refunds and less any portion of such
refunds required or, in the REIT's reasonable determination, estimated to be
required to be paid to tenants) to the General Partner, as agent for the
Contributors and certain other persons, not later than 10 days after the end of
the month in which such amounts are collected, and the General Partner shall
promptly distribute such amounts to the Contributors.
3. ACCEPTANCE OF CONTRIBUTIONS. Subject to the satisfaction of the
conditions listed or referred to in Section 7, Operating Partnership hereby
agrees that at the Closing it shall accept or, at its election, cause a
Designated Subsidiary to accept all or part of, the Contributions and shall
assume any and all rights, obligations and responsibilities of Contributors as
owners of the Contributed Interests that arise subsequent to the Closing Date.
4. CLOSING TIME AND PLACE. Unless another date or place is agreed to
by the parties, the closing of the Contributions (the "Closing") shall take
place contemporaneously with the closing of the Consolidation at the offices of
Proskauer ▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
or such other place and time as Operating Partnership and the General Partner
shall agree, upon the satisfaction or waiver of all conditions to the Closing
set forth in Section 7 hereof.
5. REPRESENTATIONS AND WARRANTIES OF OPERATING PARTNERSHIP.
Operating Partnership hereby represents and warrants to Contributors as follows,
which representations and warranties shall be true and correct on the Closing
Date:
5.1 ORGANIZATION, POWER AND AUTHORITY, AND QUALIFICATION. Operating
Partnership is a limited partnership duly organized, validly existing and in
good standing under the laws of the State of Delaware. The REIT is a real estate
investment trust duly organized, validly existing and in good standing under the
laws of the State of Maryland. Each of Operating Partnership and the REIT has
the requisite power and authority to carry on its respective business as it is
now being conducted. Each of Operating Partnership and the REIT is qualified to
do business and is in good standing in each jurisdiction in which the character
of its property owned or leased or the nature of its activities makes such
qualification necessary, except where the failure to be so qualified and in good
standing would not have a material adverse effect on the business or financial
condition of Operating Partnership or the REIT, as the case may be.
5.2 AUTHORITY RELATIVE TO THIS AGREEMENT. Operating Partnership has
taken all action necessary to authorize the execution, delivery and performance
of this Agreement by Operating Partnership and no other proceedings on the part
of Operating Partnership are necessary to authorize the execution and delivery
of this Agreement and the consummation of the Contributions.
None of the execution and delivery of this Agreement by Operating
Partnership, the consummation by Operating Partnership of the Contributions or
compliance by Operating
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Partnership with any of the provisions hereof shall (i) conflict with or result
in any breach of any provisions of the partnership agreement of Operating
Partnership; (ii) result in a violation or breach of, or constitute (with or
without due notice or lapse of time or both) a default (or give rise to any
right of termination, cancellation or acceleration) under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, lease, license,
contract, agreement or other instrument or obligation to which Operating
Partnership is a party or by which it or any of its properties or assets may be
bound; or (iii) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to Operating Partnership; except in the case of (ii) or
(iii) for violations, breaches, or defaults (A) that would not in the aggregate
have a material adverse effect on the business or financial condition of
Operating Partnership or the REIT, and that shall not impair the effectiveness
of the Contributions contemplated hereby, or (B) for which waivers or consents
have been or shall be obtained prior to the Closing Date.
5.3 BINDING OBLIGATION. This Agreement has been duly and validly
executed and delivered by Operating Partnership and constitutes a valid and
binding agreement of Operating Partnership, enforceable against Operating
Partnership in accordance with its terms, except that such enforcement may be
subject to bankruptcy, conservatorship, receivership, insolvency, moratorium, or
similar laws affecting creditors' rights generally or the rights of creditors of
limited partnerships and to general principles of equity.
5.4 INSOLVENCY. There are no attachments, executions or assignments
for the benefit of creditors, or voluntary or involuntary proceedings in
bankruptcy, or under any other debtor relief laws, contemplated by or pending or
threatened against Operating Partnership.
5.5 BROKERS. Neither Operating Partnership nor the REIT has employed
or dealt with any broker or finder, or incurred any liability therefor, in
connection with the Contributions.
5.6 VALID CONSIDERATION. The Units, when issued in accordance with
this Agreement and the Partnership Agreement of Operating Partnership, will be
duly and validly issued, and the issuance thereof will not be subject to
preemptive or other similar rights.
6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF Contributors. Each
Contributor, in his, her or its capacity as a partner of the Partnership, hereby
represents and warrants to and agrees with Operating Partnership with respect to
his, her or its Contributed Interests as follows, which representations and
warranties shall also be true and correct on the Closing Date:
6.1 TITLE; AUTHORITY TO ASSIGN. Contributor (i) owns good and
marketable, legal and beneficial (except for holders of beneficial interests in
the amounts payable with respect to such Contributed Interests who have no other
rights with respect to those interests) title in and to his, her or its
Contributed Interests which as of the Closing Date will be held free of liens,
encumbrances, judgments, adverse interests, pledges or security interests, other
than pledges of
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partnership interests to the Partnership or the other partners to secure a
partner's obligations to meet capital calls or other obligations as set forth in
the partnership agreement of the Partnership (as to which no amounts are
outstanding and no amounts will be outstanding as of the Closing Date), and
except as contemplated in the financing for the Partnership and (iii) has the
full right, power, capacity and authority to validly contribute and convey his,
her or its Contributed Interests pursuant to this Agreement.
6.2 NO BREACH OF PARTNERSHIP AGREEMENT. None of the execution and
delivery of this Agreement by Contributor, the consummation by Contributor of
the Contribution or compliance by Contributor with any of the provisions hereof
shall as of the Closing Date conflict with or result in any breach of any
provisions of the Partnership Agreement of the Partnership or any other
agreement to which Contributor is a party.
6.3 INSOLVENCY. There are no attachments, executions or assignments
for the benefit of creditors, or voluntary or involuntary proceedings in
bankruptcy, or under any other debtor relief laws, contemplated by or pending
or, to the knowledge of Contributor, threatened against Contributor.
6.4 LITIGATION. Contributor has no knowledge of any actual or
pending litigation or proceeding by any organization, person, individual or
governmental agency against Contributor with respect to or against or
potentially affecting his, her or its Contributed Interests.
6.5 BINDING OBLIGATION, ETC. This Agreement has been duly and
validly executed and delivered by Contributor to Operating Partnership and
constitutes a legal, valid and binding agreement of Contributor, enforceable
against Contributor in accordance with its terms, except as such enforcement may
be limited by bankruptcy, conservatorship, receivership, insolvency, moratorium
or similar laws affecting creditors' rights generally and to general principles
of equity. Contributor further represents and warrants that if Contributor is a
corporation, partnership, trust or other entity, it has the power to, and is
duly authorized and otherwise duly qualified to, purchase and hold securities
such as Units and Common Shares (as hereinafter defined) and such entity has its
principal place of business as set forth on Exhibit A.
6.6 BROKERS. Contributor has not employed or dealt with any broker
or finder, or incurred any liability therefor, in connection with the
Contribution.
6.7 SECURITIES ACT AND OTHER REPRESENTATIONS AND AGREEMENTS.
(a) (i) Upon the issuance of Units to Contributor (or a
designee as provided in Section 2), Contributor (or designee) shall become
subject to, and shall be bound by, the terms and provisions of the partnership
agreement of Operating Partnership, including the terms of the power of attorney
contained in Section 15.11 thereof, as the Partnership Agreement may be amended
and restated from time to time in accordance with its terms.
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(ii) Contributor or his, her or its advisor(s) have
had a reasonable opportunity to ask questions of and receive information and
answers from a person or persons acting on behalf of the Partnership and
Operating Partnership concerning the Consolidation, and, as Contributor may deem
necessary, to verify the information contained in the Memorandum, receipt of
which is acknowledged, and any other information provided to Contributor by the
Partnership or Operating Partnership and all such questions have been answered
and all such information has been provided to the full satisfaction of
Contributor.
(iii) Contributor is acquiring Units for his, her or
its own account as principal, for investment and not with a view to resale or
distribution, and the Units may not be transferred or otherwise disposed of by
Contributor otherwise than in transactions pursuant to a registration statement
filed by the Operating Partnership (which it has no obligation to file) or that
are exempt from the registration requirements of the Securities Act of 1933, as
amended (the "Securities Act"), and all applicable state and foreign securities
laws, and the REIT may refuse to transfer any Units as to which evidence of such
registration or exemptions from such registration satisfactory to the REIT is
not provided to it, which evidence may include the requirement of legal opinions
regarding the exemption from such registration. If the REIT elects, in its sole
discretion, to deliver to any Contributor common shares of beneficial interest
of the REIT ("Common Shares") upon redemption of any Units, the Common Shares
will be acquired for his, her or its own account as principal, for investment
and not with a view to resale or distribution, and the Common Shares may not be
transferred or otherwise disposed of by Contributor otherwise than in
transactions pursuant to any registration statement filed by the REIT with
respect to such Common Shares (which it has an obligation to file only pursuant
to the Registration Rights Agreement described in the Memorandum) or that are
exempt from the registration requirements of the Securities Act and all
applicable state and foreign securities laws, and the REIT may refuse to
transfer any Common Shares as to which evidence of such registration or
exemptions from such registration satisfactory to the REIT is not provided to
it, which evidence may include the requirement of legal opinions regarding the
exemption from such registration.
(iv) Contributor (either alone or with his, her or
its advisors) has sufficient knowledge and experience in financial, tax and
business matters to enable him, her or it to evaluate the merits and risks of an
investment in the Units. Contributor has the ability to bear the economic risk
of acquiring the Units. Contributor acknowledges that (1) the transactions
contemplated by this Agreement and the Memorandum involve complex tax
consequences for each Contributor and each Contributor is relying solely on the
advice of his, her or its own tax advisors in evaluating such consequences, and
(2) neither Operating Partnership nor the General Partner has made (or shall be
deemed to have made) any representations or warranties as to the tax
consequences of such transaction to any Contributor. Each Contributor remains
solely responsible for all tax matters relating to each Contributor.
(v) If needed, Contributor has discussed with his,
her or its professional, legal, tax or financial advisors the suitability of an
investment in Units or Common
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Shares for his, her or its particular tax and financial situation. Nothing
contained herein or in the Memorandum shall be deemed to imply any
representation by Operating Partnership or the General Partner as to a
particular tax effect that may be obtained by any Contributor.
(vi) All information that Contributor has provided to
Operating Partnership concerning himself or herself or itself and his, her or
its financial position is correct and complete as of the date hereof, and if
there should be any material change in such information prior to issuance of
Units to the Contributors, he, she or it shall immediately provide such changed
information to Operating Partnership.
(vii) Contributor has not disclosed any information
contained in the Memorandum to anyone other than his or her spouse or his, her
or its professional, legal, tax or financial advisors advising him, her or it in
connection with this investment and has not reproduced the Memorandum other than
for such use by such advisors.
(b) Status as a United States Person. (i) Unless otherwise
indicated on the Partner Consent, Contributor certifies that Contributor is not
a foreign person within the meaning of Section 1445 of the Internal Revenue Code
("Section 1445"). To the extent that Contributor is not a foreign person within
the meaning of Section 1445, (1) Contributor's U.S. taxpayer identification
number that has previously been provided to the Partnership is accurate, (2)
Contributor's home address (in the case of an individual) or office address (in
the case of an entity) is that address indicated on Exhibit A of this Agreement
and (3) if Contributor subsequently becomes a foreign person within the meaning
of Section 1445, Contributor shall notify Operating Partnership prior to the
Closing.
(ii) If Contributor is or prior to the Closing becomes a
foreign person within the meaning of Section 1445, Operating Partnership shall,
and is authorized to, withhold ten percent (10%) of the amount realized (as such
term is defined in Section 1001 of the Internal Revenue Code) by Contributor in
connection with the Contribution, unless Operating Partnership shall receive
from Contributor a notice of nonrecognition transfer with respect to the
Contribution by Contributor (in a form to be provided by Operating Partnership).
(c) Indemnification. Contributor hereby agrees to indemnify
and hold harmless the Partnership, the REIT, Operating Partnership and the
General Partner and any of the employees, agents, officers, directors and
affiliated persons of the foregoing from any and all damages, losses, costs and
expenses (including reasonable attorneys' fees) which they, or any of them, may
incur by reason of a failure by Contributor to fulfill any of its obligations
under this Agreement or by reason of the breach by Contributor of any of the
representations and warranties contained herein.
(d) Waiver and Contribution. Contributor understands that (i)
the Units to be issued pursuant to the Consolidation have not been registered
under the Securities Act and (ii) the failure to register such Units could
result in Contributor being granted certain rights
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under the Federal securities laws, including a right to rescind Contributor's
consent to the Consolidation. For the benefit of Operating Partnership, and in
consideration of Operating Partnership's consummating the Consolidation,
Contributor (x) hereby waives any and all rights he or she now has or may
hereafter be granted to rescind his or her consent to the Consolidation on the
basis that the Units issued in connection with the Consolidation were not
registered (the "Waiver") and (y) agrees that if the Waiver is deemed void or
unenforceable for any reason, including, without limitation, under Section 14 of
the Securities Act, the entire beneficial interest in all property and amounts
received by Contributor in any action to rescind the Consolidation (regardless
of whether such action was initiated by Contributor) or otherwise received by
Contributor as damages for failure to register the Units under the Securities
Act, shall be promptly paid over and contributed by Contributor to Operating
Partnership, for no additional consideration from Operating Partnership, other
than the Units originally issued pursuant to the Consolidation.
Whenever the context shall require, all words in the male, female or
neuter gender shall be deemed to include the other genders, all singular words
shall include the plural, and all plural words shall include the singular. All
representations, covenants and agreements of Contributor set forth in this
Agreement shall survive the consummation of the Consolidation contemplated by
the Memorandum.
7. CONDITIONS TO COMPLETION. In addition to the conditions to
completion of the Consolidation set forth in the Memorandum, the obligations of
Operating Partnership to consummate the transactions contemplated by this
Agreement shall be subject to fulfillment (or waiver by Operating Partnership)
at or prior to the Closing of the following conditions:
7.1 REPRESENTATIONS, WARRANTIES AND COVENANTS. The representations,
warranties and covenants made by Contributors in this Agreement or in any
document delivered by any of them pursuant to this Agreement shall be true and
correct in all material respects when made and on and as of the Closing as
though such representations, warranties and covenants were made on and as of
such date.
7.2 CONSENTS. Any and all consents required by the Partnership
Agreement of the Partnership, and any certificates, agreements, contribution and
assumption instruments and other documents necessary or advisable to evidence
the conveyance of the Contributed Interests and the admission of Operating
Partnership (or Designated Subsidiary) into the Partnership by virtue of the
contribution of the Contributed Interests, shall have been obtained.
7.3 NO ORDER OR INJUNCTION. The consummation of the Contributions
shall not have been restrained, enjoined or prohibited by any order or
injunction of any court or governmental authority of competent jurisdiction.
7.4 INSTRUMENTS OF CONVEYANCE. The Contributors shall have delivered
the instruments evidencing conveyance of their interests referred to in Section
8.1.
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8. THE CLOSING.
8.1 CONTRIBUTORS' AND GENERAL PARTNER'S CLOSING DOCUMENTS. At
Closing, each Contributor shall deliver (or cause to be delivered pursuant to
the Power of Attorney referred to in Section 11.9) or the General Partner shall
deliver the following (all of which shall be duly executed and acknowledged
where required):
(a) A written document of conveyance contributing to Operating
Partnership (and/or any Designated Subsidiary) title to Contributor's
Contributed Interests, free and clear of any adverse claim or interest;
(b) Such documents and certificates as Operating Partnership
reasonably may require to establish the authority of the parties executing any
documents in connection with the Contributions including, in the case of any
Contributor that is a corporation, partnership, limited liability company, or
other similar entity (other than a trust or estate), an opinion of counsel,
reasonably satisfactory to the Operating Partnership, as to the due execution
and delivery of such documents;
(c) Such consents and instruments of admission as are
contemplated by Section 7.2 hereof; and
(d) Such other documents, instruments and certificates as
Operating Partnership and the General Partner, as agent for the Contributors,
reasonably agree are necessary or appropriate, including without limitation
recording and transfer forms and affidavits.
8.2 OPERATING PARTNERSHIP'S CLOSING DOCUMENTS. At Closing, Operating
Partnership shall deliver or cause to be delivered to the General Partner, as
agent for the Contributors, the following:
(a) The Units referred to in Section 2(a);
(b) Copies of the executed Partnership Agreement of the
Operating Partnership and the Registration Rights Agreement and Unit Redemption
Agreement referred to in Section 11.09; and
(c) Such other documents and instruments as the General
Partner, as agent for the Contributors, and Operating Partnership agree are
necessary or appropriate, including without limitation recording and transfer
forms and affidavits.
9. TRANSFER TAXES AND CLOSING COSTS.
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(a) The General Partner and Operating Partnership shall join
on the Closing Date in completing, executing, delivering and verifying the
returns, affidavits and other documents required in connection with the
documentary stamps in accordance with the New York State Real Estate Transfer
Tax imposed by Article 31 of the Tax Law, the New York City Real Property
Transfer Tax imposed by Chapter 46 of Title 11 of the Administrative Code of the
City of New York, and any other tax payable by reason of the contribution of the
Contributed Interests (collectively, the "Conveyance Taxes").
(b) The Contributors hereby agree to pay and shall be solely
responsible for the Conveyance Taxes due on the conveyance of the Contributed
Interests including, but not limited to, any Conveyance Taxes imposed due to the
Contributor's failure to satisfy any holding period or continuity requirements
for qualifying for a reduced rate of Conveyance Taxes, including the holding
period requirements with respect to certain transfers to a REIT imposed in
connection with the New York Real Estate Transfer Tax imposed by Article 31 of
the Tax Law and the New York City Real Property Transfer Tax imposed by Chapter
46 of Title 11 of the Administrative Code of the City of New York. Using the
amount distributed to the General Partner pursuant to Section 2(b) hereof, the
General Partner, as agent for the Contributors, shall timely pay to the
appropriate tax collecting agency or official the amount of all Conveyance Taxes
payable by reason of the Contributors' agreement to pay the Conveyance Taxes
(assuming satisfaction of the requirements set forth in the preceding sentence).
The Contributors shall indemnify, defend and hold harmless Operating Partnership
and the Partnership from and against all claims, liabilities, costs and expenses
(including reasonable attorney's fees), incurred by Operating Partnership or the
Partnership by reason of the failure of the Contributors to pay any Conveyance
Taxes assessed or alleged to be due at any time with respect to the transfer of
the Interests to Operating Partnership, including, without limitation, all
interest and penalties thereon.
(c) Operating Partnership shall also pay or provide for the
payment of all other costs associated with the closing of the contributions of
the Contributed Interests pursuant to this Agreement, as described in and
subject to the terms of the Memorandum.
10. OPERATION IN THE ORDINARY COURSE. The General Partner shall use
reasonable efforts to operate the Partnership and the Property in the ordinary
course of business between the date hereof and the closing of the Consolidation,
including making any necessary capital expenditures and leasing expenditures
consistent with past practices to maintain the quality and value of the
Property.
11. GENERAL PROVISIONS.
11.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. It is the express
intention and agreement of the parties hereto that the representations and
warranties of the parties set forth in this Agreement shall survive the
consummation of the Contributions and the Closing.
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11.2 NOTICES. All notices, demands, requests or other communications
that may be or are required to be given or made by any party to the other
parties pursuant to this Agreement shall be in writing and shall be hand
delivered or transmitted by certified mail, express overnight mail or delivery
service, telegram, telex or facsimile transmission to the parties at the
addresses specified in Exhibit A or such other address as the addressee may
indicate by written notice to the other party.
Each notice, demand, request or communication that is given or made
in the manner described above shall be deemed sufficiently given or made for all
purposes at such time as it is delivered to the addressee (with the delivery
receipt, the affidavit of messenger or (with respect to a telex) the answer back
being deemed conclusive but not exclusive evidence of such delivery) or at such
time as delivery is refused by the addressee upon presentation.
11.3 GOVERNING LAW. This Agreement, the rights and obligations of
the parties hereto and any claims or disputes relating to such rights and
obligations shall be governed by and construed under the laws of the State of
New York.
11.4 HEADINGS. Section and subsection headings contained in this
Agreement are inserted for convenience of reference only, shall not be deemed to
be a part of this Agreement for any purpose, and shall not in any way define or
affect the meaning, construction or scope of any of the provisions hereof.
11.5 BENEFIT AND ASSIGNMENT. No Contributor shall assign this
Agreement, in whole or in part, whether by operation of law or otherwise,
without the prior written consent of Operating Partnership. Any purported
assignment contrary to the terms hereof shall be null, void and of no force and
effect.
This Agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and assigns as permitted
hereunder. No person or entity other than the parties hereto is or shall be
entitled to bring any action to enforce any provision of this Agreement against
any of the parties hereto, and the covenants and agreements set forth in this
Agreement shall be solely for the benefit of, and shall be enforceable only by,
the parties hereto or their respective successors and assigns as permitted
hereunder.
The Operating Partnership may designate one or more Designated
Subsidiaries to acquire all or any part of the Contributed Interests (in which
case the Designated Subsidiary shall execute a certificate at closing making the
same representations and warranties as are made by Operating Partnership and
references to Operating Partnership shall include the Designated Subsidiaries
except where the context clearly indicates otherwise).
11.6 SEVERABILITY. If any part of any provision of this Agreement or
any other agreement, document or writing given pursuant to or in connection with
this Agreement shall be invalid or unenforceable under applicable law, such part
shall be ineffective to the extent of such
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invalidity or unenforceability only, without in any way affecting the remaining
parts of such provisions or the remaining provisions of said agreement so long
as the economic and legal substance of the Contributions is not affected in any
manner materially adverse to either party.
11.7 ENTIRE AGREEMENT; AMENDMENT. The Schedules and the Exhibits
attached hereto are hereby incorporated into the Agreement as if fully set forth
herein. This Agreement, and the Schedules and Exhibits attached hereto, together
with the Memorandum, contain the final and entire agreement between the parties
hereto with respect to the Contributions, supersede all prior oral and written
memoranda and agreements with respect to the matters contemplated herein, and
are intended to be an integration of all prior negotiations and understandings.
Contributors and Operating Partnership shall not be bound by any terms,
conditions, statements, warranties or representations, oral or written, not
contained or referred to herein or therein. No change or modification of this
Agreement shall be valid unless the same is in writing and signed by the parties
hereto.
11.8 NO WAIVER. No delay or failure on the part of any party hereto
in exercising any right, power or privilege under this Agreement or under any
other instrument or document given in connection with or pursuant to this
Agreement shall impair any such right, power or privilege or be construed as a
waiver of any default or any acquiescence therein. No single or partial exercise
of any such right, power or privilege shall preclude the further exercise of
such right, power or privilege. No waiver shall be valid against any party
hereto unless made in writing and signed by the party against whom enforcement
of such waiver is sought and then only to the extent expressly specified
therein.
11.9 CONSENT AND POWER OF ATTORNEY. The General Partner hereby
consents to the contribution of the Contributed Interests pursuant hereto by
each of the Contributors. Each Contributor is executing a Partner Consent
pursuant to which such Contributor (a) is executing this Agreement and (b) is
consenting to each matter set forth therein. In addition, by executing this
Agreement pursuant to the Consent, each Contributor is constituting and
appointing each of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇, individually, with full power of substitution, the true and lawful
attorney-in-fact (the "Attorney") of such Contributor, with full power and
authority in the name of and for and on behalf of such Contributor, to execute
an instrument of conveyance contributing his, her or its Contributed Interests
to Operating Partnership pursuant to the Consolidation on the terms set forth in
the Memorandum, to execute the Partnership Agreement of Operating Partnership
and the Registration Rights Agreement and a Unit Redemption Agreement (if the
Contributor elects to redeem its Units for cash immediately after the Closing)
and to execute any instruments required to be filed in connection with the
Conveyance Taxes, and to execute any other instruments that the General Partner
reasonably determines necessary or appropriate in connection with the
contribution of the Contributed Interests pursuant to this Agreement and the
consummation of the Consolidation, including, without limitation, to consummate
the transactions which are the subject matter of the Major Partner Agreement.
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Each Contributor shall promptly notify the General Partner if any of
the representations and warranties by that partner were not true and correct
when made or become untrue at any time prior to the Closing.
IN WITNESS WHEREOF, each of the Contributors has executed a separate
Partner Consent agreeing to be bound by the terms of this Agreement and each of
Operating Partnership, and the General Partner has caused this Agreement to be
duly executed and delivered on its or his behalf as of the date first above
written.
THE MENDIK COMPANY, L.P.
By: The Mendik Company, Inc., general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
[ADDITIONAL SIGNATURES OMITTED]
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Two Penn Plaza Associates
Exhibit A
List of Partners
Number of
Units
---------
Penby Associates 9,674
c/o ▇▇▇▇▇▇▇ Vespa
▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Knatten, Inc.
c/o Weissbarth, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ 7,742
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 1,868
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Mendik Realty Company, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ 29,095
------
48,379
------
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