Exhibit 10.16
CONTRIBUTION, DISTRIBUTION AND
ASSIGNMENT AGREEMENT
This Contribution, Distribution and
Assignment Agreement (the “ Agreement ”),
effective as of January 15, 2009, is entered into by and among
New Plan Property Holding Company, a Maryland real estate
investment trust (“ Property Holding Company ”),
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 ”), CA New Plan VI, a Maryland real estate
investment trust (“ CA New Plan VI ”), Excel
Realty Trust — ST, LLC, a Delaware limited liability company
(“ Excel Realty Trust — ST ”), New Plan
Maryland Holdings, LLC, a Delaware limited liability company
(“ Maryland Holdings ”), 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
”), NP of Tennessee, L.P., 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 L.P.
”), 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 ”), HK New Plan Exchange Property Owner I,
LLC, a Delaware limited liability company (“ Property
Owner I ”), HK New Plan Exchange Property Holdings I,
LLC, a Delaware limited liability company (“ Property
Holdings I ”), HK New Plan STH Upper Tier II Company, a
Maryland real estate investment trust (“ HK NP STH Upper
Tier II ”), HK New Plan Exchange Property Owner II, LP, a
Delaware limited partnership (“ Property 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 ERP Property Holdings, LLC, a Delaware limited liability
company (“ ERP Property Holdings ”), Excel
Realty Partners, L.P., a Delaware limited partnership (“
Excel Realty Partners ”), New Plan DRP Trust, a
Maryland real estate investment trust (“ NP DRP Trust
”), New Plan ERP Limited Partner Company, a Maryland real
estate investment trust (“ NP ERP LP ”), ERP New
Britain Limited Partnership, a Delaware limited partnership
(“ New Britain LP ”), 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 ”),
Centro NP ERT, LLC, a Delaware limited liability company (“
Centro NP ERT ”), HK New Plan Macon Chapman TRS
GP Company, a Delaware corporation (“ Macon Chapman
TRS ”), ERT Development Corporation, a Delaware
corporation (“ ERT ”), New Plan Florida
Holdings, LLC, a Delaware limited liability company (“
Florida Holdings ”), HK New Plan STH Lower Tier,
LLC, a Delaware limited liability company (“ HK NP STH
Lower Tier ”), HK New Plan STH Mid Tier II, LLC, a
Delaware limited liability company (“ HK NP STH Mid Tier
II ” and, collectively with Property Holding Company,
Asset Partnership IV, NP Asset LLC, CA New Plan VI, Excel Realty
Trust — ST, Maryland Holdings, Michigan LLC, Michigan Member
LLC, Tennessee LP, New Plan of Tennessee, NPTN, Texas Assets L.P.,
Texas Assets LLC, CA New Plan IV, Property Owner I, Property
Holdings I, HK NP STH Upper Tier II, Property Owner II, HK NP Lower
Tier OH, HK NP Mid Tier OH, HK NP OH TRS, ERP Property Holdings,
Excel Realty Partners, NP DRP Trust, NP ERP LP, New Britain LP, NP
Realty Trust, NP Pennsylvania, Centro NP ERT, Macon Chapman TRS,
ERT, Florida Holdings and HK NP STH Mid Tier II, the “
Current Owners ”), Centro NP LLC, a Maryland limited
liability company (“ Centro NP LLC ”), Super
LLC, a Maryland limited liability company (“ Super LLC
”), Centro NP Residual Holding LLC, a Delaware limited
liability
company (“ NP Residual Holding
”), and Centro NP Residual Holding Sub 1, LLC, a Delaware
limited liability company (“ NP Residual Holding Sub 1
” and together with the Current Owners, Centro NP LLC, Super
LLC and NP Residual Holding, 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 partner interests (collectively, the
“ Current Owner Entity Interests ”) in the
limited liability companies and limited partnerships 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 and limited partner interests (collectively, the
“ Entity Interests ”) in the limited liability
companies and limited partnerships 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 or limited partner, as applicable, 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 or limited
partner, as applicable, of each of the Entities, and immediately
following the admission of NP Residual Holding as a substitute
member or limited partner, as applicable, of each of the Entities,
Super LLC desires to cease to be a member or limited partner, as
applicable, of each of the Entities;
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 or limited partner, as applicable, of each of the Entities,
Centro NP LLC desires to cease to be a member or limited partner,
as applicable, of each of the Entities; and
WHEREAS, NP Residual Holding desires
to contribute, assign, transfer and convey one hundred percent
(100%) of the Entity Interests directly to NP Residual Holding Sub
1 (the “ NP Residual Holding Contribution ”),
and immediately following the admission of NP Residual Holding Sub
1 as a substitute member or limited partner, as applicable, of each
of the
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Entities, NP Residual Holding desires to cease
to be a member or limited partner, 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.
(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 or agreement of limited
partnership, 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 or agreement of limited
partnership, 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 or
limited partner, 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 or limited partner, as applicable, of each of the
Entities shall not dissolve the Entities.
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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 or agreement of limited
partnership, 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 or agreement of limited
partnership, 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 or
limited partner, as applicable, of each of the Entities.
(c)
Notwithstanding any provision in the
limited liability company agreement or agreement of limited
partnership, as applicable, of any Entity to the contrary,
immediately following the admission of NP Residual Holding as a
substitute member or limited partner, as applicable, of each of the
Entities, Super LLC shall and does hereby cease to be a member or
limited partner, as applicable, of each of the Entities and shall
thereupon cease to have or exercise any right or power as a member
or limited partner, 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 or limited partner, as applicable, of each of the Entities
and Super LLC’s ceasing to be a member or limited partner, 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 or agreement of limited
partnership, 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 or agreement of limited
partnership, 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 or
limited partner, as applicable, of each of the Entities.
(c)
Notwithstanding any provision in the
limited liability company agreement or agreement of limited
partnership, as applicable, of any Entity to the contrary,
immediately following the admission of NP Residual Holding as a
substitute member or limited partner, as applicable, of each of the
Entities, Centro NP LLC shall and does hereby cease to be a member
or limited partner, as applicable, of each of the
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Entities, and shall thereupon cease
to have or exercise any right or power as a member or limited
partner, 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 or limited partner, as applicable, of each of the
Entities and Centro NP LLC’s ceasing to be a member or
limited partner, as applicable, of each of the Entities shall not
dissolve the Entities.
1.5 NP Residual Holding
Contribution . Effective immediately following
consummation of the Centro NP LLC Contribution:
(a)
Notwithstanding any provision in the
limited liability company agreement or agreement of limited
partnership, as applicable, of any Entity to the contrary, NP
Residual Holding hereby makes the NP Residual Holding Contribution,
representing a contribution of all of the Entity Interests owned by
it (i.e., one hundred percent (100%) of the Entity Interests) to NP
Residual Holding Sub 1.
(b)
Notwithstanding any provision in the
limited liability company agreement or agreement of limited
partnership, as applicable, of any Entity to the contrary,
contemporaneously with the NP Residual Holding Contribution
described in Section 1.5(a) above, NP Residual
Holding Sub 1 is hereby admitted to each of the Entities as a
substitute member or limited partner, as applicable, of each of the
Entities.
(c)
Notwithstanding any provision in the
limited liability company agreement or agreement of limited
partnership, as applicable, of any Entity to the contrary,
immediately
