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EXHIBIT 10.21
CONTRIBUTION AGREEMENT
BY AND BETWEEN
CARR CAPITAL REAL ESTATE INVESTMENTS, LLC
A VIRGINIA LIMITED LIABILITY COMPANY,
AS CONTRIBUTOR
AND
COLUMBIA EQUITY, LP,
A VIRGINIA LIMITED PARTNERSHIP,
AS ACQUIRER
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TABLE OF CONTENTS
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ARTICLE I THE
CONTRIBUTION.....................................................................................
2
1.1 Contribution of Membership
Interest.........................................................
2
1.2
Consideration...............................................................................
2
1.3 Redemption Rights for
Units.................................................................
2
1.4 Tax Consequences to
Contributor.............................................................
2
ARTICLE II REPRESENTATIONS AND
COVENANTS.......................................................................
3
2.1 Representations by
Acquirer.................................................................
3
2.2 Representations by
Contributor..............................................................
4
2.3 Covenants of
Acquirer.......................................................................
6
2.4 Covenants of
Contributor....................................................................
7
ARTICLE III Conditions Precedent to the
Closing................................................................
8
3.1 Conditions to Acquirer's
Obligations........................................................
8
3.2 Conditions to Contributor's
Obligations.....................................................
8
ARTICLE IV Closing and Closing
Documents.......................................................................
9
4.1
Closing.....................................................................................
9
4.2 Contributor's
Deliveries....................................................................
9
4.3 Acquirer's
Deliveries.......................................................................
10
4.4 Fees and Expenses; Closing
Costs............................................................
10
4.5
Adjustments.................................................................................
10
ARTICLE V
Miscellaneous........................................................................................
11
5.1
Notices.....................................................................................
11
5.2 Entire Agreement; Modifications and Waivers; Cumulative
Remedies............................ 12
5.3
Exhibits....................................................................................
12
5.4 Successors and
Assigns......................................................................
12
5.5 Article
Headings............................................................................
12
5.6 Governing
Law...............................................................................
12
5.7
Counterparts................................................................................
12
5.8
Survival....................................................................................
13
5.9
Severability................................................................................
13
5.10 Attorneys'
Fees.............................................................................
13
5.11 Section 8.04
Rights.........................................................................
13
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EXHIBITS
A Assignment and Assumption Agreement
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CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT (this "Agreement") is made as of
this 31st day
of January, 2005 by and between Carr Capital Real Estate
Investments, LLC, a
Virginia limited liability company ("Contributor"); and Columbia
Equity, LP, a
Virginia limited partnership ("Acquirer").
RECITALS
A. Fair Oaks Corporate Center, LLC, a Virginia limited liability
company
(the "LLC") is the owner of certain land located at in Fairfax,
County Virginia
(the "Land") and the office building and related improvements
located thereon
(the "Improvements"), which Land and Improvements (collectively,
the "Property")
are more commonly known as the Fair Oaks Corporate Center.
B. Carr Capital FOCC Investors, LLC, a Virginia limited
liability company
(the "Liquidating LLC") is the record and beneficial owner of
One Hundred and
00/100 percent (100.00%) of the membership interest in the
LLC.
C. Contributor is the record and beneficial owner of
Twenty-Eight and
94/100 percent (28.94%) of the membership interests in the
Liquidating LLC.
D. The members of the Liquidating LLC, Holualoa K(3) Fair Oaks,
LLC, an
Arizona limited liability company ("Holualoa"), Clark/Carr
Investments, LLC, a
Maryland limited liability company ("Clark") and Contributor
(collectively, the
"Liquidating LLC Members") intend to liquidate the Liquidating
LLC and that each
of the Liquidating LLC Members be admitted as members of the
LLC, with
Contributor receiving a Twenty-Eight and 94/100 percent (28.94%)
("Contributor's
Share") membership interest in the LLC (the "Membership
Interest"), Holualoa
receiving a Thirty-Five and 53/100 percent (35.53%) membership
interest in the
LLC and Clark receiving a Thirty-Five and 53/100 percent
(35.53%) membership
interest in the LLC (the "Liquidation Transaction"). Contributor
desires to
contribute the Membership Interest to Acquirer, on the terms and
conditions
hereinafter set forth.
E. Acquirer desires to acquire the Membership Interest from
Contributor,
on the terms and conditions hereinafter set forth.
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual covenants
herein
contained, the parties hereto agree as follows:
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ARTICLE I
THE CONTRIBUTION
1.1 Contribution of Membership Interest. Contributor agrees to
contribute,
transfer, assign and convey the Membership Interest to Acquirer,
and Acquirer
agrees to acquire and accept transfer of the Membership Interest
pursuant to the
terms and conditions set forth in this Agreement. The Membership
Interest shall
be transferred to Acquirer free and clear of all liens,
encumbrances, security
interests, prior assignments or conveyances, conditions,
restrictions, voting
agreements, claims, and any other matters affecting title
thereto (other than
the LLC's operating agreement (the "LLC Operating
Agreement")).
1.2 Consideration. The total consideration (the "Consideration")
for which
Contributor agrees to contribute and assign the Membership
Interest to Acquirer,
and which Acquirer agrees to pay or deliver to Contributor,
subject to the terms
of this Agreement, shall be the issuance to Contributor of a
number of units of
limited partnership interests in Acquirer ("Units") equal to (a)
a value of
Contributor's Membership Interest providing the Contributor with
a twenty
percent (20%) IRR (as defined in the Liquidating LLC's operating
agreement (the
"Liquidating LLC Operating Agreement"), based on a minimum of a
six month
investment holding period for Seller's Capital Contribution (as
defined in the
Liquidating LLC Operating Agreement), (b) divided by the price
per share at
which the common stock, $.01 par value per share, (the "Common
Stock") of
Columbia Equity Trust, Inc., a Maryland corporation and the
general partner of
Acquirer (the "REIT"), is offered to the public in the
underwritten initial
public offering of the Common Stock (the "IPO"). On the Closing
Date (as defined
below), the Units shall be issued to Contributor. Upon the
request of
Contributor, Acquirer shall issue certificates reflecting
Contributor's
ownership of Units. The certificates evidencing the Units will
bear appropriate
legends indicating (i) that the Units have not been registered
under the
Securities Act of 1933, as amended ("Securities Act"), and (ii)
that Acquirer's
Amended and Restated Agreement of Limited Partnership (the
"Partnership
Agreement") restricts the transfer of the Units. Upon receipt of
the Units and
execution and delivery of the Partnership Agreement, Contributor
shall become a
limited partner of Acquirer.
1.3 Redemption Rights for Units. Each Unit shall be redeemable,
at the
option of the holder, in accordance with, but subject to the
restrictions
contained in, the Partnership Agreement; provided, however, that
such redemption
option may not be exercised prior to the first anniversary of
the Closing Date.
1.4 Tax Consequences to Contributor. Notwithstanding anything to
the
contrary contained in this Agreement, including without
limitation the use of
words and phrases such as "sell," "sale," purchase," and "pay,"
the parties
hereto acknowledge and agree that it is their intent that the
transaction
contemplated hereby be treated for federal income tax purposes
as the
contribution of the Membership Interest by Contributor to
Acquirer in exchange
for Units pursuant to Section 721 of the Internal Revenue Code
of 1986, as
amended (the "Code"), and not as a transaction in which
Contributor is acting
other than in its capacity as a prospective partner of
Acquirer.
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ARTICLE II
REPRESENTATIONS AND COVENANTS
2.1 Representations by Acquirer. Acquirer hereby represents and
warrants
unto Contributor that the following statements are true,
correct, and complete
in every material respect as of the date of this Agreement and
will be true,
correct, and complete as of the Closing Date:
(a) Organization and Power. Acquirer is duly organized and
validly
existing, under the laws of the Commonwealth of Virginia, and
has full right,
power, and authority to enter into this Agreement and to perform
all of its
obligations under this Agreement; and, the execution and
delivery of this
Agreement and the performance by Acquirer of its obligations
under this
Agreement have been duly authorized by all requisite action of
Acquirer and
require no further action or approval of Acquirer's partners or
of any other
individuals or entities in order to constitute this Agreement as
a binding and
enforceable obligation of Acquirer.
(b) Noncontravention. Neither the entry into nor the performance
of,
or compliance with, this Agreement by Acquirer has resulted, or
will result, in
any violation of, or default under, or result in the
acceleration of, any
obligation under the Partnership Agreement, or any mortgage,
indenture, lien
agreement, note, contract, permit, judgment, decree, order,
restrictive
covenant, statute, rule, or regulation applicable to
Acquirer.
(c) Litigation. There is no action, suit, or proceeding, pending
or
known to be threatened, against or affecting Acquirer in any
court or before any
arbitrator or before any federal, state, municipal, or other
governmental
department, commission, board, bureau, agency or instrumentality
which (i) in
any manner raises any question affecting the validity or
enforceability of this
Agreement, (ii) would reasonably be expected to materially and
adversely affect
the business, financial position, or results of operations of
Acquirer, or (iii)
would reasonably be expected to materially and adversely affect
the ability of
Acquirer to perform its obligations hereunder, or under any
document to be
delivered pursuant hereto.
(d) Units Validly Issued. The Units, when issued, will have
been
duly and validly authorized and issued, free of any preemptive
or similar
rights, and will be fully paid and nonassessable, without any
obligation to
restore capital except as required by the Virginia Revised
Uniform Limited
Partnership Act (the "Limited Partnership Act"). Upon execution
and delivery of
the Partnership Agreement by Contributor, Contributor shall be
admitted as a
limited partner of Acquirer as of the Closing Date and shall be
entitled to all
of the rights and protections of a limited partner under the
Limited Partnership
Act and the provisions of the Partnership Agreement, with the
same rights,
preferences, and privileges as all other limited partners on a
pari passu basis.
(e) Consents. Each consent, approval, authorization, order,
license,
certificate, permit, registration, designation, or filing by or
with any
governmental agency or
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body necessary for the execution, delivery, and performance of
this Agreement or
the transactions contemplated hereby by Acquirer has been
obtained.
(f) Bankruptcy with respect to Acquirer. No Act of Bankruptcy
has
occurred with respect to Acquirer. As used herein, "Act of
Bankruptcy" shall
mean if a party hereto shall (A) apply for or consent to the
appointment of, or
the taking of possession by, a receiver, custodian, trustee or
liquidator of
itself or of all or a substantial part of its property, (B)
admit in writing its
inability to pay its debts as they become due, (C) make a
general assignment for
the benefit of its creditors, (D) file a voluntary petition or
commence a
voluntary case or proceeding under the Federal Bankruptcy Code
(as now or
hereafter in effect), (E) be adjudicated bankrupt or insolvent,
(F) file a
petition seeking to take advantage of any other law relating to
bankruptcy,
insolvency, reorganization, winding-up or composition or
adjustment of debts,
(G) fail to controvert in a timely and appropriate manner, or
acquiesce in
writing to, any petition filed against it in an involuntary case
or proceeding
under the Federal Bankruptcy Code (as now or hereafter in
effect), or (H) take
any action for the purpose of effecting any of the
foregoing.
(g) Brokerage Commission. Acquirer has not engaged the services
of,
nor has it or will it or Contributor become liable to, any real
estate agent,
broker, finder or any other person or entity for any brokerage
or finder's fee,
commission or other amount with respect to the transactions
described herein on
account of any action by Acquirer. Acquirer hereby agrees to
indemnify and hold
Contributor and its employees, directors, members, partners,
affiliates and
agents harmless against any claims, liabilities, damages or
expenses arising out
of a breach of the foregoing. This indemnification shall survive
Closing or any
termination of this Agreement.
2.2 Representations by Contributor. Contributor hereby
represents and
warrants unto Acquirer that each and every one of the following
statements is
true, correct, and complete in every material respect as of the
date of this
Agreement and will be true, correct, and complete as of the
Closing Date:
(a) Organization and Power. Contributor is duly organized,
validly
existing, and in good standing as a limited liability company
under the laws of
the Commonwealth of Virginia. Contributor has full right, power,
and authority
to enter into this Agreement and to assume and perform all of
its obligations
under this Agreement; and the execution and delivery of this
Agreement and the
performance by Contributor of its obligations hereunder have
been duly
authorized by all requisite action of Contributor and require no
further action
or approval of Contributor's members or managers or of any other
individuals or
entities in order to constitute this Agreement as a binding and
enforceable
obligation of Contributor.
(b) Noncontravention. Neither the entry into nor the performance
of,
or compliance with, this Agreement by Contributor has resulted,
or will result,
in any violation of, or default under, or result in the
acceleration of, any
obligation under any limited liability company agreement,
operating agreement,
regulation, mortgage, indenture, lien agreement, note, contract,
permit,
judgment, decree, order, restrictive covenant, statute, rule, or
regulation
applicable to Contributor or to the Membership Interest.
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(c) Litigation. There is no action, suit, claim, or
proceeding
pending or threatened against or affecting Contributor, its
membership interest
in the Liquidating LLC or the Membership Interest in any court,
or before any
arbitrator, or before any federal, state, municipal or other
governmental
department, commission, board, bureau, agency or instrumentality
which (A) in
any manner raises any question affecting the validity or
enforceability of this
Agreement, (B) would reasonably be expected to materially and
adversely affect
the business, financial position or results of operations of
Contributor, (C)
would reasonably be expected to materially and adversely affect
the ability of
Contributor to perform its obligations hereunder, or under any
document to be
delivered pursuant hereto, (D) would reasonably be expected to
create a lien on
the Membership Interest, any part thereof, or an
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