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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
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TABLE OF CONTENTS
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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
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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
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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
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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
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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 pu
