Exhibit 10.1
CONTRIBUTION, DISTRIBUTION AND ASSIGNMENT
AGREEMENT
This Contribution,
Distribution and Assignment Agreement (the “ Agreement
”), effective as of March 28, 2008, is entered into by
and among New Plan of Illinois, LLC, a Delaware limited liability
company (“ New Plan of Illinois ”), New Plan
Property Holding Company, a Maryland real estate investment trust
(“ Property Holding Company ”), Excel Realty
Trust – ST, LLC, a Delaware limited liability company
(“ Excel Realty Trust – ST ”), HK New Plan
Exchange Property Holdings IV, LLC, a Delaware limited liability
company (“ Property Holdings IV ”), New Plan
Realty Trust, LLC, a Delaware limited liability company (“
NP Realty Trust ”), New Plan Pennsylvania Holdings,
LLC, a Delaware limited liability company (“ NP
Pennsylvania ”), New Plan of Michigan, LLC, a Delaware
limited liability company (“ Michigan LLC ”),
New Plan of Michigan Member, LLC, a Delaware limited liability
company (“ Michigan Member LLC ”), Excel Realty
Trust - NC, a North Carolina general partnership (“ Excel
NC ”), NC Properties #1, LLC, a Delaware limited
liability company (“ NC Properties #1 ”), NC
Properties #2, LLC, a Delaware limited liability company (“
NC Properties #2 ”), HK New Plan Macon Chapman QRS LP,
LLC, a Delaware limited liability company (“ Macon Chapman
LLC ”), HK New Plan Exchange Property Owner II, L.P., a
Delaware limited partnership (“ HK NP Owner II
”), HK New Plan Lower Tier OH, LLC, a Delaware limited
liability company (“ HK NP Lower Tier OH ”), HK
New Plan Mid Tier OH, L.P., a Delaware limited partnership (“
HK NP Mid Tier OH ”), HK New Plan OH TRS, Inc., a
Delaware corporation (“ HK NP OH TRS ”), HK New
Plan STH Upper Tier II Company, a Maryland real estate investment
trust (“ HK NP STH Upper Tier II ”), NP of
Tennessee, LP, a Delaware limited partnership (“
Tennessee, LP ”), New Plan of Tennessee, LLC, a
Delaware limited liability company (“ New Plan of
Tennessee ”), NPTN, Inc., a Delaware corporation
(“ NPTN ”), CA New Plan Texas Assets, L.P., a
Delaware limited partnership (“ Texas Assets, LP
”), CA New Plan Texas Assets, LLC, a Delaware limited
liability company (“ Texas Assets, LLC ”), CA
New Plan IV, a Maryland real estate investment trust (“ CA
New Plan IV ”), CA New Plan Asset Partnership IV, L.P., a
Delaware limited partnership (“ Asset Partnership IV
”), CA New Plan Asset LLC, a Delaware limited liability
company (“ NP Asset LLC ”), and CA New Plan VI,
a Maryland real estate investment trust (“ CA New Plan
VI ” and, collectively with New Plan of Illinois,
Property Holding Company, Excel Realty Trust – ST, Property
Holdings IV, NP Realty Trust, NP Pennsylvania, Michigan LLC,
Michigan Member LLC, Excel NC, NC Properties #1, NC Properties #2,
Macon Chapman LLC, HK NP Owner II, HK NP Lower Tier OH, HK NP Mid
Tier OH, HK NP OH TRS, HK NP STH Upper Tier II, Tennessee, LP, New
Plan of Tennessee, NPTN, Texas Assets, LP, Texas Assets, LLC, CA
New Plan IV, Asset Partnership IV and NP Asset LLC, the “
Current Owners ”), Centro NP LLC, a Maryland limited
liability company (“ Centro NP LLC ”), Super
LLC, a Maryland limited liability company (“ Super LLC
”), and Centro NP Residual Holding LLC, a Delaware limited
liability company (“ NP Residual Holding ” and
together with the Current Owners, Centro NP LLC and Super LLC,
each, a “ Party ” and collectively, the “
Parties ”).
RECITALS
WHEREAS, the
Current Owners own, directly or indirectly, as applicable, the
limited liability company interests and limited partnership
interests (collectively, the “ Current Owner Entity
Interests ”) in the limited liability companies and
limited partnership listed on Schedule 1-A attached hereto
and made a part hereof (collectively, the “ Current
Owner
Entities ”), all as more
particularly depicted on Schedule 2 attached hereto and made
a part hereof;
WHEREAS, the
Current Owners desire to distribute, assign, transfer and convey
all of the Current Owner Entity Interests to Centro NP LLC (the
“ Initial Distribution ”), which shall thereupon
be admitted as a member or limited partner of each of the Current
Owner Entities, and immediately following the admission of Centro
NP LLC as a substitute member or limited partner of each of the
Current Owner Entities, the Current Owners desire to cease to be
members or limited partners, as applicable, of the Current Owner
Entities;
WHEREAS, following
the Initial Distribution, Centro NP LLC will directly own the
limited liability company interests, limited partnership interests
and shares (collectively, the “ Entity Interests
”) in the limited liability companies, limited partnerships
and corporation listed on Schedule 1-B attached hereto and
made a part hereof (collectively, the “ Entities
”);
WHEREAS, Centro NP
LLC desires to distribute, assign, transfer and convey fifty one
percent (51%) of the Entity Interests (the “ Super LLC
Interests ”) to Super LLC (the “ Centro NP LLC -
Super LLC Distribution ”), which shall thereupon be
admitted as a member, limited partner or shareholder of each of the
Entities;
WHEREAS, Super LLC
desires to contribute, assign, transfer and convey the Super LLC
Interests to NP Residual Holding (the “ Super LLC
Contribution ”), which shall thereupon be admitted as a
member, limited partner or shareholder, as applicable, of each of
the Entities, and immediately following the admission of NP
Residual Holding as a substitute member, limited partner or
shareholder, as applicable, of each of the Entities, Super LLC
desires to cease to be a member, limited partner or shareholder, as
applicable, of each of the Entities; and
WHEREAS, Centro NP
LLC desires to contribute, assign, transfer and convey forty nine
percent (49%) of the Entity Interests directly to NP Residual
Holding (the “ Centro NP LLC Contribution ”),
and immediately following the admission of NP Residual Holding as a
substitute member, limited partner or shareholder, as applicable,
of each of the Entities, Centro NP LLC desires to cease to be a
member, limited partner or shareholder, as applicable, of each of
the Entities.
AGREEMENT
NOW, THEREFORE, in
consideration of the foregoing premises and for other good and
valuable consideration, the receipt of which are hereby
acknowledged, the Parties hereto hereby agree as
follows:
1. Contributions and
Distributions .
1.1 Initial
Distribution .
(a)
Notwithstanding any provision in the limited liability company
agreement or agreement of limited partnership, as applicable, of
any Current Owner Entity to the contrary, the Current Owners hereby
make the Initial Distribution, representing a distribution of all
of the Current Owner Entity Interests to Centro NP LLC.
2
(b)
Notwithstanding any provision in the limited liability company
agreement or agreement of limited partnership, as applicable, of
any Current Owner Entity to the contrary, contemporaneously with
the Initial Distribution described in
Section 1.1(a) above, Centro NP LLC is hereby
admitted to each of the Current Owners Entities as an additional
member or limited partner, as applicable, of each of the Current
Owner Entities.
(c)
The Parties agree that the Initial Distribution and the admission
of Centro NP LLC as an additional member or limited partner, as
applicable, of each of the Current Owner Entities shall not
dissolve the Current Owner Entities.
1.2 Centro NP LLC - Super
LLC Distribution . Effective immediately
following consummation of the Initial Distribution:
(a)
Notwithstanding any provision in the limited liability company
agreement, agreement of limited partnership or articles of
incorporation, as applicable, of any Entity to the contrary, Centro
NP LLC hereby makes the Cento NP LLC - Super LLC Distribution,
representing a contribution of fifty-one percent (51%) of the
Entity Interests to Super LLC.
(b)
Notwithstanding any provision in the limited liability company
agreement, agreement of limited partnership or articles of
incorporation, as applicable, of any Entity to the contrary,
contemporaneously with the Cento NP LLC - Super LLC Distribution
described in Section 1.2(a) above, Super LLC is
hereby admitted to each of the Entities as an additional member,
limited partner or shareholder, as applicable, of each of the
Entities.
(c)
The Parties agree that the Cento NP LLC - Super LLC Distribution
and the admission of Super LLC as an additional member, limited
partner or shareholder, as applicable, of each of the Entities
shall not dissolve the Entities.
1.3 Super LLC
Contribution . Effective immediately following
consummation of the Centro NP LLC – Super LLC
Distribution:
(a)
Notwithstanding any provision in the limited liability company
agreement, agreement of limited partnership or articles of
incorporation, as applicable, of any Entity to the contrary, Super
LLC hereby makes the Super LLC Contribution, representing a
contribution of all of the Entity Interests owned by it (i.e.,
fifty-one percent (51%) of the Entity Interests) to NP Residual
Holding.
(b)
Notwithstanding any provision in the limited liability company
agreement, agreement of limited partnership or articles of
incorporation, as applicable, of any Entity to the contrary,
contemporaneously with the Super LLC Contribution described in
Section 1.3(a) above, NP Residual Holding is
hereby admitted to each of the Entities as a substitute member,
limited partner or shareholder, as applicable, of each of the
Entities.
3
(c)
Notwithstanding any provision in the limited liability company
agreement, agreement of limited partnership or articles of
incorporation, as applicable, of any Entity to the contrary,
immediately following the admission of NP Residual Holding as a
substitute member, limited partner or shareholder, as applicable,
of each of the Entities, Super LLC shall and does hereby cease to
be a member, limited partner or shareholder, as applicable, of each
of the Entities and shall thereupon cease to have or exercise any
right or power as a member, limited partner or shareholder, as
applicable, of each of the Entities.
(d)
The Parties agree that the Super LLC Contribution, the admission of
NP Residual Holding as a substitute member, limited partner or
shareholder, as applicable, of each of the Entities and Super
LLC’s ceasing to be a member, limited partner or shareholder,
as applicable, of each of the Entities shall not dissolve the
Entities.
1.4 Centro NP LLC
Contribution . Effective immediately following
consummation of the Super LLC Contribution:
(a)
Notwithstanding any provision in the limited liability company
agreement, agreement of limited partnership or articles of
incorporation, as applicable, of any Entity to the contrary, Centro
NP LLC hereby makes the Centro NP LLC Contribution, representing a
contribution of all of the Entity Interests owned by it (i.e.,
forty-nine percent (49%) of the Entity Interests) to NP Residual
Holding.
(b)
Notwithstanding any provision in the limited liability company
agreement, agreement of limited partnership or articles of
incorporation, as applicable, of any Entity to the contrary,
contemporaneously with the Centro NP LLC Contribution described in
Section 1.4(a) above, NP Residual Holding is
hereby admitted to each of the Entities as a substitute member,
limited partner or shareholder, as applicable, of each of the
Entities.
(c)
Notwithstanding any provision in the limited liability company
agreement, agreement of limited partnership or articles of
incorporation, as applicable, of any Entity to the contrary,
immediately following the admission of NP Residual Holding as a
substitute member, limited partner or shareholder, as applicable,
of each of the Entities, Centro NP LLC shall and does hereby cease
to be a member, limited partner or shareholder, as applicable, of
each of the Entities, and shall thereupon cease to have or exercise
any right or power as a member, limited partner or shareholder, as
applicable, of each of the Entities.
(d)
The Parties agree that the Centro NP LLC Contribution, the
admission of NP Residual Holding as a substitute member, limited
partner or shareholder, as applicable, of each of the Entities and
Centro NP LLC’s ceasing to be a member, limited partner or
shareholder, as applicable, of each of the Entities shall not
dissolve the Entities.
4
|
