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EXHIBIT 10.47
CONTRIBUTION AGREEMENT
(FUTURE ASSET MANAGEMENT AGREEMENTS)
BY AND BETWEEN
CARR CAPITAL CORPORATION
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..................................................................................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.................................................................................10
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 Carr
Capital Corporation, a District of
Columbia corporation ("Contributor"); and
Columbia Equity, LP, a Virginia
limited partnership ("Acquirer").
RECITALS
A.
Contributor 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
(the "Properties"), contributed by
and purchased from Contributor's affiliates
and other entities in exchange for
partnership units (the "Units") in
Acquirer.
B.
Contributor desires to contribute all of its right, title and
interest in and to any asset management
agreements (the "Asset Management
Agreements") related to the Properties or
other real properties entered into by
Contributor during the period between the
date first written above and the
Closing Date (as defined below) to
Acquirer, on the terms and conditions
hereinafter set forth.
C.
Acquirer desires to acquire the Asset Management Agreements
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. Contributor agrees to contribute, transfer,
assign and convey all of its right, title
and interest in and to the Asset
Management Agreements to Acquirer, and
Acquirer agrees to acquire and assume the
Asset Management Agreements pursuant to the
terms and conditions set forth in
this Agreement. The Asset Management
Agreements 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 Asset Management
Agreements 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) Five (5) times the projected
aggregate asset management fees payable to
Acquirer under the Asset Management
Agreements for the twelve calendar months
immediately following the Closing
Date, (b) divided by the price per share at
which the common stock, $.01 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"). On the
Closing Date (as defined below), the Units
shall be issued to Contributor.
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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 Asset Management
Agreements 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
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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 every
material respect as of the date of this
Agreement and will be true, correct, and
complete as of the Closing Date:
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(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 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 Asset Management Agreements.
(c)
Litigation. There is no action, suit, claim, or
proceeding pending or threatened against or
affecting Contributor or the Asset
Management Agreements 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 a
