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EXHIBIT 10.24
CONTRIBUTION AGREEMENT
(INDEPENDENCE CENTER)
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..............................................................
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
Capital Real Estate Investments, LLC, a
Virginia 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") 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 a Fourteen
and
03/100 percent (14.03%) ("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
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("Units") equal to (a) One Million Six
Hundred Thirty One Thousand Five Hundred
Eighty Five Dollars ($1,631,585), (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
Virginia 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 by Acquirer, or any of
its partners, officers, employees, or
agents that
