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EXHIBIT 10.15
IRREVOCABLE CONTRIBUTION AGREEMENT
This IRREVOCABLE
CONTRIBUTION AGREEMENT made as of February 18, 2005 (this
"Agreement"), by and among:
(a) RICHARD N. SHELL, an individual
("Contributing Member");
(b) CIATTI SHELL LLC, a Delaware
limited liability company (the
"Company");
(c) VINTAGE WINE TRUST, LP, a Delaware
limited partnership (the "Operating
Partnership"); and
(d) VINTAGE WINE TRUST, INC., a
Maryland corporation (the "REIT").
RECITALS:
A. Contributing Member is the
owner and holder of membership interests in the
Company (all of
such membership interests, the "Membership Interest").
B. The Company is the owner and
holder of all of the Class A Membership
Interest in VWP,
LLC, a Delaware limited liability company ("VWP").
C. Contributing Member desires
to contribute the Membership Interest to the
Operating
Partnership and the Operating Partnership desires to accept
such
contribution, in
each case, in exchange for the Contribution Consideration
(as herein
defined) as more specifically set forth in this Agreement.
NOW THEREFORE, in
consideration of the mutual covenants and agreements
set forth herein and for other good and
valuable consideration, the receipt and
sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Contribution and
Contribution Consideration.
1.1 Contribution by Contributing
Member. On the terms hereof and subject to the
conditions
contained herein, Contributing Member hereby agrees to
contribute the
Membership Interest to the Operating Partnership and the
Operating Partnership desires to
accept the contribution of the Membership
Interest, in
exchange for the Contribution Consideration (the
"Contribution").
1.2 Closing Date. The Contribution
shall take place contemporaneously with the
Rule 144A
Offering (as herein defined) (the "Closing Date").
1.3 Assumption of LP Agreement.
Effective as of the Closing Date, Contributing
Member accepts
the issuance of the Contribution OP Units from the Operating
Partnership and
accepts and adopts the provisions of the LP Agreement and
assumes all of
the duties and obligations of a Limited Partner (as defined
in the LP
Agreement) relating to the Contribution OP Units, as of the
Closing
Date.
1.4 Certain Definitions. As used
herein:
(a) "Contribution Consideration" means
the Contribution OP Units;
(b) "Contribution OP Units" means an
amount equal to Twenty-Five Thousand
(25,000) OP Units;
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(c) "FBR" means Friedman, Billings,
Ramsey & Co., Inc., a Delaware
corporation;
(d) "LP Agreement" means that certain
First Amended and Restated Agreement
of Limited Partnership of Vintage Wine Trust, LP to be dated as of
the
Closing Date; and
(e) "Rule 144A Offering" means the
offering and sale of shares of the
Common Shares of the REIT to FBR and the subsequent offering and
sale
of such shares by FBR in reliance upon Rule 144A and/or Regulation
S,
in each case as promulgated under the Securities Act of 1933,
as
amended (the "Securities Act"); and
(f) "OP Units" means common units of
limited partner interest in the
Operating Partnership.
1.5 Additional Documents.
(a) On the date hereof, Contributing
Member shall deliver to the Operating
Partnership and the REIT a duly completed and executed Form
W-9,
FIRPTA Affidavit and Accredited Investor Questionnaire, each in
the
form attached as Exhibit A to this Agreement (this Agreement,
the
Accredited Investor Questionnaire, Form W-9 and FIRPTA
Affidavit
collectively referred to as, the "Subscription Documents").
(b) On the Closing Date, the REIT and
Contributing Member shall execute a
Registration Rights Agreement substantially in the form of the
draft
dated the date hereof, with such modifications as the REIT and/or
the
Operating Partnership deem necessary in their respective sole
discretion.
2. Representations, Warranties
and Covenants of Contributing Member.
Contributing
Member hereby acknowledges, represents and warrants to, and
covenants and
agrees with the Operating Partnership and the REIT that (and
each
representation and warranty set forth below shall be deemed remade
as
of the Closing
Date):
2.1 Approval of LP Agreement.
Contributing Member has reviewed and approved the
forms of the LP
Agreement and the Subscription Documents and Contributing
Member consents
to any changes to the LP Agreement and the Subscription
Documents
approved by the REIT.
2.2 Authority; Authorization;
Execution and Delivery.
(a) Contributing Member has full power
and authority to enter into the
Subscription Documents and to consummate the transactions
contemplated
by this Agreement.
(b) The execution and delivery of the
Subscription Documents by
Contributing Member and the consummation by Contributing Member of
the
transactions contemplated by the Subscription Documents have been
duly
authorized by all necessary action on the part of Contributing
Member
and will not constitute or result in a breach or default under,
or
conflict with or violate, any agreement or other undertaking, to
which
Contributing Member is a party or by which Contributing Member
is
bound or with any judgment, decree, statute, order, rule or
regulation
applicable to Contributing Member or Contributing Member's
assets,
and, if Contributing Member is not an individual, will not violate
any
provisions of the organizational or other formation or
governing
documents of Contributing Member.
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(c) The Subscription Documents have
been duly executed and delivered by
Contributing Member and constitute valid and legally binding
obligations of Contributing Member, enforceable against
Contributing
Member in accordance with and subject to their respective
terms,
subject to applicable bankruptcy, insolvency, moratorium or
other
similar laws relating to creditors' rights and general principles
of
equity. The signatures on the Subscription Documents are genuine,
and
the signatory, if Contributing Member is an individual, has
legal
competence and capacity to execute the same, or, if
Contributing
Member is not an individual, the signatory has been duly authorized
to
execute the same on behalf of Contributing Member.
2.3 Purchase for Investment.
(a) Contributing Member is acquiring
the Contribution OP Units (or shares
of Common Stock of the REIT issued to Contributing Member in
connection with a Redemption (as defined in the LP Agreement)
(such
shares of Common Stock, "Redemption Shares")) for Contributing
Member's own account (or if Contributing Member is a trustee, for
a
trust account) for investment only, and not with a view to or for
sale
in connection with any distribution of all or any part of such
Contribution OP Units.
(b) Contributing Member hereby agrees
that Contributing Member shall not,
directly or indirectly, transfer all or any part of such
Contribution
OP Units or Redemption Shares (or solicit any offers to buy,
purchase
or otherwise acquire or take a pledge of all or any part of the
Contribution OP Units or Redemption Shares) except in accordance
with
(i) the registration provisions of the Securities Act, and the
regulations thereunder or an exemption from such registration
provisions; (ii) any applicable state or non-U.S. securities
laws;
(iii) the terms of this Agreement; (iv) the LP Agreement; and (v)
the
Charter and by-laws of the REIT (as amended from time to time,
collectively, the "REIT Organizational Documents"), as
applicable.
(c) Contributing Member understands
that (i) Contributing Member must bear
the economic risk of an investment in the Contribution OP Units
and
Redemption Shares for an indefinite period of time because,
among
other reasons, the transfer of the Contribution OP Units and
Redemption Shares have not been registered under the Securities
Act
and, therefore, the Redemption Shares and Contribution OP Units
cannot
be sold unless such resale is subsequently registered under the
Securities Act or an exemption from such registration is
available;
and (ii) sales or transfers of the Contribution OP Units and
Redemption Shares are further restricted by the provisions of the
LP
Agreement or the REIT Organizational Documents, as applicable, and
may
be restricted by other applicable securities laws. If at any time
the
Contribution OP Units or Redemption Shares are evidenced by
certificates or other documents, each such certificate or other
document shall contain a legend stating that (x) the Contribution
OP
Units or Redemption Shares, as applicable, (1) have not been
registered under the Securities Act or the securities laws of
any
state; (2) have been issued pursuant to a claim of exemption from
the
registration provisions of the Securities Act and any state
securities
law which may be applicable; and (3) may not be sold, transferred
or
assigned without compliance with the registration provisions of
the
Securities Act and the regulations thereunder and any other
applicable
state securities laws or compliance with applicable exemptions
therefrom; and (y) sale, transfer or assignment of such
Contribution
OP Units or Redemption Shares, as applicable, is further subject
to
restrictions contained in the LP Agreement or the REIT
Organizational
Documents, as applicable, and such Contribution OP Units or
Redemption
Shares may not be sold, transferred or assigned unless and to
the
extent permitted by, and
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in accordance with, the provisions of the LP Agreement or the
REIT
Organizational Documents, as applicable.
2.4 Information.
(a) Contributing Member has carefully
reviewed this Agreement, that
certain Offering Memorandum for the Rule 144A Offering, the forms
of
the LP Agreement, the Charter and by-laws of the REIT.
Contributing
Member has been provided an opportunity to ask questions of,
and
Contributing Member has received answers thereto satisfactory
to
Contributing Member from the Operating Partnership and the REIT
or
their respective representatives regarding the terms and conditions
of
the issuance of the Contribution OP Units, and Contributing Member
has
obtained all additional information requested by Contributing
Member
of the
Operating Partnership and the REIT and their respective
representatives to verify the accuracy of all information furnished
to
Contributing Member regarding the issuance of the Contribution
OP
Units.
(b) Contributing Member is not relying
on the Operating Partnership or the
REIT or any of their respective subsidiaries, affiliates or any
of
their respective representatives or agents with respect to any tax
or
other economic considerations involved in connection with the
Contribution Consideration or Redemption Shares.
(c) Contributing Member has been
advised to consult with his or its tax,
legal and other advisors regarding the issuance of the Contribution
OP
Units and its effects, the tax consequences of making and not
making a
subscription hereunder, and has obtained, in Contributing
Member's
judgment, sufficient information to evaluate the merits and risks
of
such subscription and investment.
(d) Contributing Member has not been
furnished with and has not relied on
any oral or written representation from any party other than his
or
its advisors in connection with the issuance of the Contribution
OP
Units or Redemption Shares that is not contained in this
Agreement.
2.5 Economic and Liquidity Risk.
(a) Contributing Member has such
knowledge and experience in financial and
business matters such that Contributing Member is capable of
evaluating the merits and risks of making an investment in the
Contribution OP Units and/or Redemption Shares, and that
Contributing
Member has evaluated the risks of investing in the Contribution
OP
Units
and/or Redemption Shares and has determined that they are a
suitable investment for Contributing Member.
(b) Contributing Member understands
that an investment in the Contribution
OP Units and/or Redemption Shares is a speculative inv
