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CONTRIBUTION AGREEMENT

Contribution Agreement

CONTRIBUTION AGREEMENT You are currently viewing:
This Contribution Agreement involves

Belbrook Realty Corporation | Duke Realty Limited Partnership | Quantico Real Estate LLC

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Title: CONTRIBUTION AGREEMENT
Governing Law: Delaware     Date: 3/1/2007
Law Firm: Alston & Bird LLP;Goulston & Storrs, P.C.    

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Exhibit 10.30

CONTRIBUTION AGREEMENT

between

DUKE REALTY LIMITED PARTNERSHIP ET AL.

and

QUANTICO REAL ESTATE LLC

and

BELBROOK REALTY CORPORATION

as of December 6, 2006

 

 

 




 

Table of Contents

 ARTICLE 1

 

Background

 

1

 

 

 

 

 

ARTICLE 2.

 

Agreement to Contribute; Description of Property; Defined Terms

 

3

 

 

 

 

 

ARTICLE 3.

 

Contribution Subject to Leases

 

4

 

 

 

 

 

ARTICLE 4.

 

Reserved

 

5

 

 

 

 

 

ARTICLE 5.

 

Form of Contribution

 

5

 

 

 

 

 

ARTICLE 6.

 

Closing

 

6

 

 

 

 

 

ARTICLE 7.

 

Reserved

 

10

 

 

 

 

 

ARTICLE 8.

 

Conditions to Closing

 

10

 

 

 

 

 

ARTICLE 9.

 

Default

 

12

 

 

 

 

 

ARTICLE 10.

 

Entire Agreement Herein

 

13

 

 

 

 

 

ARTICLE 11.

 

Damage or Destruction; Condemnation

 

13

 

 

 

 

 

ARTICLE 12.

 

Representations and Warranties of Duke

 

15

 

 

 

 

 

ARTICLE 14.

 

Apportionment of Rents, Taxes and Other Charges

 

22

 

 

 

 

 

ARTICLE 15.

 

Broker

 

23

 

 

 

 

 

ARTICLE 16.

 

Mutual Indemnification

 

24

 

 

 

 

 

ARTICLE 17.

 

Taxes

 

24

 

 

 

 

 

ARTICLE 18.

 

Indemnity and Agreement Regarding Special Title Situation

 

 

 

 

 

 

 

ARTICLE 19.

 

Recording

 

26

 

 

 

 

 

ARTICLE 20.

 

Notices

 

27

 

 

 

 

 

ARTICLE 21.

 

Captions; Exhibits

 

28

 

i




 

ARTICLE 22.

 

Successors and Assigns

 

28

 

 

 

 

 

ARTICLE 23.

 

Closing Costs

 

28

 

 

 

 

 

ARTICLE 24.

 

Governing Law

 

28

 

 

 

 

 

ARTICLE 25.

 

Multiple Counterparts

 

28

 

 

 

 

 

ARTICLE 26.

 

Representations and Warranties of Company

 

28

 

 

 

 

 

ARTICLE 26.

 

Representations and Warranties of Belbrook

 

29

 

 

 

 

 

ARTICLE 27.

 

Post-Closing Obligations

 

29

 

Exhibits

Exhibit A

 

Reserved

Exhibit B

 

Operating Agreement

Exhibit C

 

Description of Liberty Center II

Exhibit D

 

Description of Liberty Center III

Exhibit E

 

Description of 4805 Stonecroft Boulevard

Exhibit F

 

Description of 4803 Stonecroft Boulevard

Exhibit G

 

Description of 4801 Stonecroft Boulevard

Exhibit H-1

 

Description of 107 Carpenter Road, TransDulles

Exhibit H-2

 

Description of 109 Carpenter Road, TransDulles

Exhibit H-3

 

Description of 22601 Davis Drive, TransDulles

Exhibit H-4

 

Description of 22633 Davis Drive, TransDulles

Exhibit H-5

 

Description of 22635 Davis Drive, TransDulles

Exhibit H-6

 

Description of 22825 Davis Drive, TransDulles

Exhibit H-7

 

Description of 22750 Davis Drive, TransDulles

Exhibit H-8

 

Description of 22815 Davis Drive, TransDulles

Exhibit H-9

 

Description of 22879 Davis Drive, TransDulles

Exhibit H-10

 

Description of 22880 Davis Drive, TransDulles

Exhibit H-11

 

Description of 22620 Sally Ride, TransDulles

Exhibit H-12

 

Description of 22626 Sally Ride, TransDulles

Exhibit H13

 

Description of 22645 Sally Ride, TransDulles

Exhibit I

 

Description of Liberty Center I

Exhibit J

 

Personal Property

Exhibit K

 

Gross Agreed Value of Assets

Exhibit L

 

Assignment of Member Interests

Exhibit M

 

Other Property Owned

 

ii




 

Exhibit N

 

Future Development Investment Agreement

Exhibit O

 

Liabilities

Exhibit P

 

Rent Roll and Accounts Receivable Aging Report

Exhibit Q

 

Operating Contracts

Exhibit R

 

Litigation

Exhibit S

 

Personal Property Encumbrances

Exhibit T

 

Certification of Non Foreign Status

Exhibit U

 

Disclosure Items

Exhibit V

 

Unpaid Balance of Assumed Loans

Exhibit W

 

Balances of Escrows

 

iii




 

CONTRIBUTION AGREEMENT

THIS AGREEMENT (the “Agreement”) made and entered into as of the 6 th   day of December, 2006 (the “Effective Date) by and among Duke Realty Limited Partnership (“Duke”), an Indiana limited partnership, the Owning Entities (as defined below), Quantico Real Estate LLC (the “Company”), a Delaware limited liability company and Belbrook Realty Corporation (“Belbrook”), a Delaware corporation.

NOW, THEREFORE, in consideration of One Dollar ($1.00), the covenants set forth in this Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

ARTICLE 1.  Background :

(a)           The Company .  The Company was formed in the State of Delaware on November 16, 2006 and has qualified to do business in the Commonwealth of Virginia.  Duke and Belbrook intend to enter into that certain Operating Agreement (the “Operating Agreement”) relating to the Company, in the form attached hereto as Exhibit B .

(b)           The Owning Entities .

(i)            Westfields Buildings, LLC (“Westfields Buildings”) is a Delaware limited liability company, whose sole member is WTM Master Building, LLC (“WTM Master Building”), the sole member of which is Duke.  The member interest in Westfields Buildings is referred to as the “Westfields Buildings Member Interest.”

(ii)           Westfields Liberty II, LLC (“Westfields II”) is a Delaware limited liability company, the sole member of which is Westfields Buildings.  The member interest in Westfields II is referred to as the “Westfields II Member Interest.”

(iii)          Westfields II is the owner of property known as Liberty Center II more particularly described in Exhibit C .

(iv)          Westfields Liberty III, LLC (“Westfields III”) is a Delaware limited liability company, the sole member of which is Westfields Buildings.  The

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member interest in Westfields III is referred to as the “Westfields III Member Interest.”

(v)           Westfields III is the owner of property known as Liberty Center III more particularly described in Exhibit D.

(vi)          Westfields Stonecroft 4805, LLC (“Westfields 4805”) is a Delaware limited liability company, whose sole member is Westfields Buildings.  The member interest in Westfields 4805 is referred to as the “Westfields 4805 Member Interest”.

(vii)         Westfields 4805 is the owner of property known as 4805 Stonecroft Boulevard more particularly described in Exhibit E .

(viii)        Westfields Stonecroft 4803, LLC (“Westfields 4803”) is a Delaware limited liability company whose sole member is Westfields Buildings.  The member interest in Westfields 4803 is referred to as the “Westfields 4803 Member Interest.”

(ix)           Westfields 4803 is the owner of property known as 4803 Stonecroft Boulevard more particularly described in Exhibit F .

(x)            Westfields Buildings II, LLC (“Westfields Buildings II”) is a Delaware limited liability company whose sole member is WTM Master Building.  The member interest in Westfields Buildings II is referred to as the “Westfields Buildings II Member Interest.”

(xi)           Westfields Buildings II is the owner of property known as 4801 Stonecroft Boulevard more particularly described in Exhibit G .

(xii)          TransDulles Buildings, LLC (“TransDulles”) is a Delaware Limited Liability company whose sole member is WTM Master Building.  The member interest in TransDulles is referred to as the “TransDulles Member Interest.”

(xiii)         TransDulles is the owner of thirteen (13) parcels of property which are described in Exhibits H-1 through H-13 .

(xiv)        Westfields Liberty I, LLC (“Westfields I”) is a Delaware limited liability company whose sole member is Duke.  The member interest in Westfields I is referred to as the “Westfields I Member Interest.”

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(xv)         Westfields I is the owner of property known as Liberty Center I more particularly described in Exhibit I .

(xvi)        Westfields II, Westfields III, Westfields 4805, Westfields 4803, Westfields Buildings II, TransDulles and Westfields I are collectively referred to as “Property Owners.”

(xvii)       The Property Owners, together with Westfields Buildings, WTM Master Building and Duke are collectively referred to as the “Owning Entities.”

ARTICLE 2. Agreement to Contribute; Description of Property; Defined Terms : (a) Duke agrees to cause WTM Master Buildings to contribute to the Company, and Belbrook agrees to cause the Company to accept upon the terms and conditions hereinafter set forth the Westfields Buildings Member Interest, the Westfields Buildings II Member Interest and the TransDulles Member Interest.  Duke further agrees to contribute to the Company and Belbrook agrees to cause the Company to accept upon the terms and conditions hereinafter set forth the Westfields I Member Interest.

(b)           For the purposes of this Agreement, the following items referred to in clauses (b)(i), (ii), (iii), (iv) and (v) are hereinafter sometimes referred to as the “Property”:  (i) certain premises described in Exhibits C, D, E, F, G, H1 through H13 and I , together with all right, title and interest of Property Owners in and to any land lying in the bed of any street (opened or proposed) adjacent to or abutting or adjoining such premises, together with all right, title and interest of Property Owners in and to all rights, privileges, rights of way and easements appurtenant to such premises, including, without limitation, all minerals, oil or gas on or under such premises, development rights, air rights, water rights and any easements, rights of way or other interests in, on, or under any land, highway, alley, street or right of way abutting or adjoining such premises (all of the foregoing, the “Real Property”), (ii) all buildings and other improvements located thereon (the “Improvements”, and, together with the Real Property, the “Premises”), (iii) all items of personal property owned by Property Owners and located on the Premises or used in connection with the ownership or operation of the Premises, described in Exhibit J attached hereto and incorporated herein by reference, including, without implied limitation, whether or not listed on Exhibit J , all furniture, fixtures, equipment, machines, apparatus, appliances, supplies and personal property of every nature and description and all replacements thereof owned by Property Owners and located on the Premises or used in connection therewith,

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including the non-exclusive right to use the trade names “Westfields” and “TransDulles” (collectively, the “Trade Name”), but excluding any telephone numbers assigned to the Trade Name (collectively, the “Personal Property”), (iv) any intangible property now or hereafter owned by Property Owners and used in the ownership or operation of the Premises including, without limitation, any plans and specifications, surveys, catalogs, booklets, manuals, files, logs, records, correspondence, tenant lists, tenant prospect lists and other mailing lists, sales brochures and materials, leasing brochures and materials, advertising materials and other similar items, and all title inspections, studies and reports, market studies and similar inspections with respect to the sale, management, leasing, promotion, ownership, maintenance, use, occupancy and operation of the Premises, permits, licenses, approvals, guaranties, warranties, agreements, lease agreements, utility agreements or other rights relating to the ownership, use or operation of the Premises (collectively, the “Intangibles”).  The parties hereto acknowledge and agree that the cash balances of any accounts standing in the name of the Property Owners on or before the Closing Date shall remain the property of Duke and shall not be included in the Property to be contributed under this Agreement.

(c)           The terms listed below shall have the following meanings throughout this Agreement:

Gross Agreed Value:

For each Property, the Gross Agreed Value shall be the Allocated Amount set forth in Exhibit K plus or minus any prorations at Closing, including, but not limited to, prorations of principal and interest payments for any Assumed Loans (as defined below) for the month of Closing.

 

 

 

 

Net Agreed Value:

The amount of the Gross Agreed Value minus the aggregate amount of all outstanding principal and interest due and owing by Property Owners on account of any debt secured directly or indirectly by any of the Properties or any of the Member Interests (as hereinafter defined) (the “Assumed Loans”).

 

ARTICLE 3. Contribution Subject to Leases .  At the time of Closing the Premises will be subject to certain leases (hereinafter called the “Leases”) described in Exhibit P subject to new leasing activity permitted under this Agreement.  Prior to Closing, Property Owners agree to lease the Premises in accordance with Property Owners’ current leasing plan.  Property Owners shall keep Belbrook apprised of leasing activity, and prior to entering into any new

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leases or lease amendments, Property Owners shall obtain the consent of Belbrook, which consent shall not be unreasonably withheld, conditioned or delayed.  No consent shall be required for any leasing activity of existing Leases that are not in the Property Owner’s discretion (e.g. exercise of express termination rights, renewal rights on pre-negotiated terms, expansion rights on pre-negotiated terms etc.).

ARTICLE 4.  Reserved :

ARTICLE 5.  Form of Contribution :  (a) At each Closing, Duke shall contribute or cause the appropriate Owning Entity to contribute the appropriate member interest (the “Member Interest”) by a good and sufficient Assignment of Member Interests (hereinafter referred to as the “Assignment of Member Interests”) in substantially the form attached hereto as Exhibit L , running to the Company pursuant to which the appropriate Owning Entity shall contribute, assign and deliver to the Company the legal and beneficial title to and ownership of one hundred percent (100%) of the Member Interest which Member Interest shall be free and clear of any liens or other encumbrances, all in accordance with this Agreement.  The Assignment of Member Interests shall be duly executed, acknowledged and delivered by the appropriate Owning Entity at Closing.  It shall be a condition of Closing that the Property shall be free from all liens, encumbrances and encroachments from or on the Property except (i) real estate taxes and other charges payable therewith not yet due and payable, (ii) those of record prior to the Initial Closing or shown on a survey received prior to the Initial Closing but not objected to by Company and agreed to be removed by Duke prior to the Initial Closing, (iii) those Leases applicable to the Property, subject to new leasing activity permitted under this Agreement, and (iv) New Title Matters (hereinafter defined) which are expressly permitted pursuant to Section 12(a)(vi) of this Agreement.  Duke covenants and agrees not to take any action and to cause the Owning Entities not to take any action which would cause or permit a failure of the foregoing condition.

(b)           Except as set forth on Exhibit S , the Personal Property shall be owned by the Owning Entities free of all liens, charges, encumbrances, rights, restrictions and agreements of any nature.

(c)           Except as provided for in Article 12, Duke shall not allow Owning Entities to commit any acts which will result in New Title Matters (hereinafter defined) or New Personal Property Matters (hereinafter defined) between the date hereof and the Closing, and Duke shall not commit any acts which will result in a

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lien or other encumbrance against the Member Interest between the date hereof and the Closing.

ARTICLE 6.  Closing :

(a)           (i)            The closing of the contribution of the Westfields Buildings II Member Interest and the TransDulles Member Interest (the “Initial Closing”) shall take place at 10:00 a.m. no later than December 4, 2006 (the “Initial Closing Date”); at the offices of Goulston & Storrs, P.C., or at such other location as Company shall designate by five (5) business days prior written notice.  Time is of the essence.

(ii)           The parties hereto acknowledge that certain consents from lenders (“Existing Lenders”) of the Assumed Loans (hereinafter defined) and modification of the relevant management agreements are necessary prior to the contribution of Westfields I Member Interest and the Westfields Buildings Member Interest.  Each such consent and modification shall be a “Lender Consent” if (A) such consent does not contain any conditions which are not reasonably satisfactory to Duke or Belbrook (Belbrook acknowledges and consents that Belbrook will be added as a joint and several indemnitor and/or guarantor in all instances where Duke is an indemnitor and/or guarantor on an Assumed Loan) and (B) such consent also grants consent to all upper tier transfers and pledges of interest which additional consent is necessary in light of the structure and secured credit facilities of Belbrook and its owners.  Accordingly, the closing of the contribution of such interests (the “Phase II Closing”) and the payment thereof shall occur five (5) business days after satisfaction of any conditions to such Lender Consent (the “Phase II Closing Date”); provided, however, if the Lender Consent is not obtained by August 1, 2007, then Duke or Belbrook may terminate this Agreement as to any contributions of interests that have not then been consummated by notice to the other of them, provided that said termination notice is received prior to the receipt of the Lender Consent.

(iii)          For purposes hereof, any reference to “Closing” shall mean the Initial Closing or each Phase II Closing as applicable.  Any reference to “Closing Date” shall mean the Initial Closing Date or each Phase II Closing Date as applicable.

(b)           At each Closing, Duke shall deliver, or cause Owning Entity to deliver, the following documents, in the form annexed hereto or otherwise reasonably satisfactory in form and substance to Belbrook and Belbrook’s counsel, properly executed and acknowledged as required:

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(i)                                      The Assignment of Membership Interests;

(ii)                                   An original counterpart of the Operating Agreement executed by Duke (for the Initial Closing);

(iii)                                Lender’s Consent with respect to the Properties which are encumbered by an Assumed Loan.

(iv)                               A certification of non-foreign status in the form attached hereto as Exhibit T;

(v)