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EXHIBIT 10.23
CONTRIBUTION AGREEMENT
(INDEPENDENCE CENTER)
BY AND BETWEEN
CARR HOLDINGS, LLC
A MARYLAND 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...........................................................
1
1.1 Contribution of Membership
Interest............................... 1
1.2
Consideration.....................................................
1
1.3 Redemption Rights for
Units....................................... 2
1.4 Tax Consequences to
Contributor................................... 2
ARTICLE II REPRESENTATIONS AND
COVENANTS............................................. 2
2.1 Representations by
Acquirer....................................... 2
2.2 Representations by
Contributor.................................... 3
2.3 Covenants of
Acquirer............................................. 6
2.4 Covenants of
Contributor.......................................... 6
ARTICLE III Conditions Precedent to the
Closing...................................... 7
3.1 Conditions to Acquirer's
Obligations.............................. 7
3.2 Conditions to Contributor's
Obligations........................... 7
ARTICLE IV Closing and Closing
Documents............................................. 8
4.1
Closing...........................................................
8
4.2 Contributor's
Deliveries.......................................... 8
4.3 Acquirer's
Deliveries............................................. 9
4.4 Fees and Expenses; Closing
Costs.................................. 9
4.5
Adjustments.......................................................
9
ARTICLE V
Miscellaneous..............................................................
10
5.1
Notices...........................................................
10
5.2 Entire Agreement; Modifications and Waivers; Cumulative
Remedies.. 11
5.3
Exhibits..........................................................
11
5.4 Successors and
Assigns............................................ 11
5.5 Article
Headings.................................................. 11
5.6 Governing
Law..................................................... 11
5.7
Counterparts......................................................
11
5.8
Survival..........................................................
12
5.9
Severability......................................................
12
5.10 Attorneys'
Fees................................................... 12
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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 Holdings, LLC, a Maryland
limited liability
company ("Contributor"); and Columbia Equity, LP, a Virginia
limited partnership
("Acquirer").
RECITALS
A. 15036 Conference Center Drive LLC, a Delaware limited
liability
company (the "LLC") is the owner of certain land located at
15036 Conference
Center Drive, Chantilly, 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
Independence Center.
B. Carr Capital Westfields, LLC, a Virginia limited liability
company
("Carr Westfields Operating Agreement") is the record and
beneficial owner of
Ten and 00/100 percent (10.00%) of the membership interest in
the LLC.
C. Contributor is the record and beneficial owner of Thirty-Five
and
97/100 percent (35.97%) ("Contributor's Share") of the
membership interests in
Carr Westfields (with Contributor's Share thereof hereinafter
referred to as the
"Membership Interest").
D. 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:
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 Carr Westfields Operating Agreement (the
"Carr
Westfields 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) One
Million One Hundred Forty Four Thousand Eight Hundred Fifty
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Seven Dollars ($1,144,857), (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.
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.
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(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 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
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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 Maryland limited liability
company.
Contributor 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
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.
(c) Litigation. There is no action, suit, claim, or
proceeding
pending or threatened against or affecting Contributor 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 any interest therein, or (E) would reasonably be
expected to
adversely affect the Membership Interest, any part thereof, or
any interest
therein.
(d) Good Title. (A) Contributor has good title to the
Membership
Interest on the date hereof and will have good title to the
Membership Interest
on the Closing Date (other than the Carr Westfields Operating
Agreement), (B)
the Membership Interest on the date hereof is and on the Closing
Date will be,
free and clear of all liens, encumbrances, pledges, voting
agreements and
security interests whatsoever (other than the Carr Westfields
Operating
Agreement), and (C) Contributor has not granted any other person
or entity an
option to purchase or a right of first refusal upon the
Membership Interest, nor
are there any agreements or understandings between Contributor
and any other
person or entity with respect to the disposition of the
Membership Interest
(other than the Carr Westfields Operating Agreement).
(e) No Consents. Each consent, approval, authorization,
order,
license, certificate, permit, registration, designation, or
filing by or with,
any governmental agency or body necessary of the execution,
delivery, and
performance of this Agreement or the transactions contemplated
hereby by
Contributor has been obtained or will be obtained on or before
the Closing Date.
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(f) Securities Law Matters. (i) In acquiring the Units and
engaging in this transaction, neither Contributor nor any member
or shareholder
thereof is relying upon any representations made to it b
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