|
<PAGE>
EXHIBIT 10.45
CONTRIBUTION AGREEMENT
(FUTURE MEMBERSHIP INTEREST)
BY AND BETWEEN
THE OLIVER CARR COMPANY
A DISTRICT OF COLUMBIA CORPORATION,
AS CONTRIBUTOR
AND
COLUMBIA EQUITY, LP,
A VIRGINIA LIMITED PARTNERSHIP,
AS ACQUIRER
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE I THE
CONTRIBUTION.......................................................................................1
1.1 Contribution of
Interests.....................................................................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.........................................................................5
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.........................................................................8
4.4 Fees and Expenses; Closing
Costs..............................................................9
4.5
Adjustments...................................................................................9
ARTICLE V
Miscellaneous..........................................................................................9
5.1
Notices.......................................................................................9
5.2 Entire Agreement; Modifications and Waivers; Cumulative
Remedies.............................10
5.3
Exhibits.....................................................................................10
5.4 Successors and
Assigns.......................................................................10
5.5 Article
Headings.............................................................................10
5.6 Governing
Law................................................................................10
5.7
Counterparts.................................................................................11
5.8
Survival.....................................................................................11
5.9
Severability.................................................................................11
5.10 Attorneys'
Fees..............................................................................11
EXHIBITS
A Assignment and Assumption Agreement
</TABLE>
<PAGE>
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT (this "Agreement") is made as of
this 7th
day of January, 2005 by and between The Oliver Carr Company, a
District of
Columbia corporation ("Contributor"); and Columbia Equity, LP, a
Virginia
limited partnership ("Acquirer").
RECITALS
A. Carr Capital Corporation, a District of Columbia
corporation
("CCC") intends to sponsor a publicly-owned real estate
investment trust (the
"REIT"), which REIT will own property and membership interests
in entities with
direct or indirect ownership over various real properties and
improvements
located thereon, contributed by and purchased from Contributor
and other
entities in exchange for partnership units (the "Units") in
Acquirer.
B. Contributor desires to pledge and contribute 100% of any
ownership interests acquired by Contributor during the period
between the date
first written above and the Closing Date (as defined below) in
any entity with
direct or indirect ownership interests in any commercial office
property
("Property") in the Greater Washington, DC market (the
"Interests"), to
Acquirer, on the terms and conditions hereinafter set forth.
C. Acquirer desires to acquire the Interests 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 Interests. Contributor agrees to
contribute,
transfer, assign and convey the Interests to Acquirer, and
Acquirer agrees to
acquire and accept transfer of the Interests pursuant to the
terms and
conditions set forth in this Agreement. The Interests 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.
1.2 Consideration. The total consideration (the
"Consideration")
for which Contributor agrees to contribute and assign the
Interests 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
equal to (a) the Contributor's actual cash investment in the
Interests, plus a
rate of return calculated on such investment from the date it is
made until the
Closing Date at the Libor Rate (as defined below), (b) divided
by the price per
share at which the common stock, $.001 par value per share, (the
"Common Stock")
of the REIT, is offered to the public in the underwritten
initial public
offering of the Common Stock (the "IPO"). The term Libor Rate
shall mean (a) the
rate described as the "London Interbank Offered Rate" for one
month in the Money
Rates Section of the Wall Street Journal, determined on the
Closing Date, plus
(b) eight hundred (800) basis points. On the Closing Date, the
Units shall be
issued to Contributor. Upon the request of Contributor, Acquirer
shall issue
certificates reflecting Contributor's ownership of Units.
The
- 1 -
<PAGE>
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 Interests 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.
(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
- 2 -
<PAGE>
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 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
incorporated, validly existing, and in good standing as a
corporation under the
laws of the District of Columbia. Contributor has full right,
power, and
authority to enter into this Agreement and to assume and
- 3 -
<PAGE>
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 board of
directors or
shareholders 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 bylaws, regulation,
mortgage,
indenture, lien agreement, note, contract, permit, judgment,
decree, order,
restrictive covenant, statute, rule, or regulation applicable to
Contributor or
to the Interests.
(c) Litigation. There is no action, suit, claim, or
proceeding pending or threatened against or affecting
Contributor or the
Interests 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 pursua
| 
