SECOND AMENDMENT
TO
CONTRIBUTION AGREEMENT
THIS
SECOND AMENDMENT TO CONTRIBUTION AGREEMENT (the “Second Amendment”), Made as of
the 26th
day of May, 2017, by and between HOLMWOOD CAPITAL, LLC, a Delaware
limited liability company (the “Contributor”) and HC GOVERNMENT
REALTY HOLDINGS, L.P., a Delaware limited partnership (the
“Operating
Partnership”).
W I T N
E S S E T H:
WHEREAS, the
Contributor and the Operating Partnership executed and delivered,
each to the other, that certain Contribution Agreement (the
“Original
Agreement”), dated as of March 31, 2016;
and
WHEREAS, the
Contributor and the Operating Partnership executed and delivered,
each to the other, that certain First Amendment to Contribution
Agreement (the “First
Amendment”), dated as of June 10, 2016 (the Original
Agreement, as amended by the First Amendment, is sometimes
collectively referred to herein as the “Contribution Agreement”);
and
WHEREAS, it has
come to the attention of the parties that one or more of the Lender
Consents may not have been received (each an “Outstanding Lender Consent” and
collectively, the “Outstanding Lender Consents”) as
of the date that from the perspective of both the Contributor and
the Operating Partnership is optimal for the Closing of the
contribution of the LLC Interests to occur in accordance with the
Contribution Agreement; and
WHEREAS,
recognizing that in the circumstances described in the third
preamble to this Second Amendment, without expressly or by
implication waiving or otherwise limiting the right of either the
Contributor or the Operating Partnership otherwise to insist upon
the performance by the other of its other obligations under the
Contribution Agreement, it will be in the best interest of both
parties to preserve the ability of the Contributor to provide for,
among other things, an alternative and optional means for closing
the contribution of any LLC Interests for which Lender Consents
have not been received on or before the Closing Date (each an
“Open LLC
Interest” and collectively, the “Open LLC
Interests”);
NOW,
THEREFORE, FOR and in consideration of the premises, the mutual
agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which are
acknowledged by the parties hereto, the parties hereto covenant and
agree as follows:
1. Defined
Terms, Etc. All terms used herein that are defined in the
Contribution Agreement shall have the same meaning when used herein
as therein. The Contribution Agreement, as amended by this Second
Amendment, is referred to herein as the “Amended Agreement”) and all
references to the “Agreement” contained in the
Contribution Agreement shall be deemed to be, and shall be,
references to the Amended Agreement, unless the context in which
the term, “Agreement”, is used in the Contribution
Agreement as amended by this Second Amendment, clearly requires
that a different meaning be ascribed to such term; provided, however, that
anything to the contrary contained in the Contribution Agreement
references in the Amended Agreement, including without limitation
the Exhibits thereto, to: (i) “MCF” shall be deemed to refer, and
shall refer, to that certain loan from Citizens Bank & Trust
Company (“Citizens”) to the Contributor in
the original principal amount of $1,500,000 (the
“Citizens
Loan”), (ii) “MCF Liens” shall be deemed to
refer, and shall refer, to the security interests in certain LLC
Interests created by the Contributor in favor of the Citizens as
collateral security for the payment and performance of the Citizens
Loan; and (iii) references in the Amended Agreement to
“Guaranties” and
“Guarantors’
Indemnity” shall include in addition to Existing
Loans, and the Citizens Loan guaranties by Guarantors of the
Smaller Loan (hereinafter defined) and the Larger Loan (hereinafter
defined) .
2. Amendment
of Section 9A of the Contribution Agreement. Section 9A. of
the Contribution Agreement is deleted in its entirety, and in its
place and stead is substituted the following:
“A.
Closing Date. Not
later than the Business Day (any weekday that is not a holiday on
which banks and other deposit gathering institutions in the Borough
of Manhattan, City and State of New York are generally open for
business) next following the date on which the REIT has been
notified by its investment bankers that not less than $3,000,000 in
the aggregate has been deposited in Escrow Accounts maintained by
Folio Investments, Inc. and BB&T Bank for the benefit of the
REIT and those persons investing in its common stock in the IPO,
the Operating Partnership will notify the Contributor in writing to
that effect and specify in such notice the date (the
‘Closing Date’)
on which it will be prepared to close the transactions contemplated
by the Amended Agreement (the ‘Closing’); provided, however, that the
conditions set forth in Sections 14 and 15 of the Amended Agreement
shall have been satisfied or waived. The Closing shall take place
at 10:00 AM, prevailing Richmond, Virginia time on the Closing Date
at the offices of Kaplan Voekler Cunningham & Frank, 1401 East
Cary Street, Richmond, Virginia 23219 or at such other time and
place as the parties may agree in writing.”
3.
Alternative & Optional
Approach for Open LLC Interests. There is hereby added to
Section 9 the following new Subsection G:
(a) If
on the day next preceding the Closing Date there are Outstanding
Lender Consents, then the Contributor shall notify the Operating
Partnership to that effect by the most expeditious means available,
promptly confirmed in writing. If such notice is given and the
conditions set forth in Sections 14 and 15 of the Amended Agreement
have been satisfied or waived, then the parties may proceed in the
alternative as follows:
(i)
Both of the parties may waive in writing the condition set forth in
the ultimate sentence of Section 6A of the Contribution Agreement
and close on the Closing Date; or
(ii)
Postpone the Closing Date to a
date, time and place mutually agreeable to the parties;
or
(iii)
Proceed in accordance with Section 3(b).
(b)
If the parties
agree to proceed in accordance with Section 3(a)(iii), then and in
such event:
(i) On
the Closing Date any and all Open LLC Interest(s) shall be excluded
from the Closing, shall be deemed to continue to be, and shall be,
subject to the terms of the Amended Agreement, the sole and
exclusive property of the Contributor;
(ii)
Notwithstanding anything to the contrary contained in the Amended
Agreement or the Limited Liability Company Agreement, as amended
(each an “Affected Operating
Agreement”) of any limited liability company, the
membership interests of which are Open LLC Interests (each an
“Affected
Company”, and collectively, the “Affected Companies”), at the
Closing the Contributor shall assign to the Operating Partnership
or an Affiliate or Affiliates thereof (as specified in writing by
the Operating Partnership) in form and substance acceptable to the
Contributor and the Operating Partnership all of the
Contributor’s right, title and interest in and to any and all
profits, losses and distributed cash flow, if any, of each Affected
Company, as well as all of the other benefits and burdens of
ownership for federal income tax purposes (each a
“Profits
Interest” and collectively the “Profits Interests”) in exchange
for the consideration set forth opposite the Affected
Company’s or Companies’ name(s), as the case may be, on
Exhibit B to the Amended Agreement; provided, however, that nothing
contained in the Amended Agreement shall be interpreted or
construed to result in the assignment outright or otherwise of the
Open LLC Interests in any Affected Company, which Open LLC
Interests shall be and remain the sole property of the Contributor
through and including the Open Interest Closing Date (hereinafter
defined). The assignment contemplated by this Section 3(b)(ii) (the
“Profits
Assignment”) shall be accomplished at the Closing by
an assignment in form and substance acceptable to the Operating
Partnership, delivered in accordance with Section 9C(ii) of the
Amended Agreement;
(iii)
The parties acknowledge that the Operating Partnership as the
assignee pursuant to the Profits Assignment has a primary and
overarching interest in the efficient operation of all of the
Affected Companies. Therefore, effective on the Closing Date and
without the necessity of any further action on the part of, or the
execution of any additional documents or instruments by, either the
Contributor or the Operating Partnership, upon the delivery of the
Profits Assignment to the Operating Partnership, the Contributor
shall become with full power of substitution, the agent and
attorney-in fact, coupled with an interest of the Operating
Partnership in the place and stead of the Operating Partnership to
perform or omit to perform any and all acts and things required to
be, or which may be, done or omitted with respect to any Open LLC
Interests of the Affected Company or the assets and liabilities
thereof, either in the Contributor’s capacity as record and
beneficial owner of the Open LLC Interests, or as the manager, of
any Affected Company, whether as required by the Delaware Limited
Liability Company Act, as amended (the “Act”) or any Affected Operating
Agreement. All references herein to the “Agent” shall
be deemed to be, and shall be, references to the Contributor acting
or omitting to act as such under this Section 3(b). Anything to the
contrary contained in the Amended Agreement notwithstanding, it is
specifically understood and agreed that the Agent is, and shall be,
acting solely as the agent, and not as a principal, of the
Operating Partnership with respect to the LLC Interests in any
Property LLC that is an Affected Company for all purposes and which
on the Closing Date are owned beneficially and of record by the
Contributor from the Closing Date and through and including
11:59PM, prevailing Richmond, Virginia time on the day next
preceding the Open Interest Closing Date (hereinafter defined) (the
“Pertinent
Period”), and the Contributor and the Operating
Company further covenant and agree that during the Pertinent Period
both will hold the Contributor out as the Agent, and not as
principal in all dealings with third parties relating to the LLC
Interests of any Property LLC, which is an Affected Company;
and
(iv)
On the business day (the “Open Interest Closing Date”) next
following the first to occur of: (a) the receipt by the Contributor
of all Lender Consents to the consummation of the transactions
contemplated by the Amended Agreement with respect to the transfer
of Open LLC Interests of an Affected Company, or (b) the sale or
other disposition by the Contributor with the written consent of
the Operating Company and the receipt of all required Lender
Consents of all Open LLC Interests in, or all or substantially all
of the assets of, an Affected Company, regardless of how
structured, including without limitation outright sale for cash or
other consideration to, merger or consolidation with, or
recapitalization that results in a change of control of the
Affected Company from the Contributor to, a third party or parties,
who or which are unrelated to the Contributor, the Operating
Company, the Affected Company or any affiliated company (as defined
in Section 19 of the Amended Agreement) of any of the foregoing, or
(c) the payment or defeasance in full of all Existing Loans,
secured by Existing Mortgage Liens on the assets of any Affected
Company, without the necessity of any further action, or the
execution and delivery of any other instruments or documents on the
part of the Contributor, all of the LLC Interests in the Property
LLCs, which in accordance with clause (a), (b), or (c) of this
Section 3(b)(iv),
as applicable, have ceased to be Affected Companies, ipso facto shall be deemed to
have been contributed and transferred (the “Open Interest Closing”) to the
Operating Company as of the Open Interest Closing Date;
provided, however,
that on or after the Open Interest Closing Date, whenever requested
to do so by the Operating Company, the Contributor shall take any
and all action and execute and deliver to the Operating Company any
and all instruments or documents in form and substance reasonably
acceptable to the Operating Company, that are reasonably requested
by the Operating Company to further accomplish or confirm such
contribution and transfer.
4. Amendment
to Sections 6 & 7. (a) The first (1st) sentence of
Section 6A of the Contribution Agreement is deleted in its
entirety, and in its place and stead is substituted the
following:
“The
Operating Partnership acknowledges that (i) each of the Properties
is currently encumbered with a first mortgage lien securing the
repayment of a loan made for the acquisition or refinancing of each
property (the ‘Existing
Mortgage Liens’), and (ii) certain of the LLC
Interests are encumbered by MCF Liens.”
(b) The
third (3rd) sentence of
Section 6A of the Contribution Agreement is deleted in its
entirety, and in its place and stead is substituted the
following:
“Subject to
the terms of the Tax Protection Agreement, the Operating
Partnership shall have (x) in connection with the Closing, the
right to cause the Property LLCs to pay-off the Loans secured by
the Existing Mortgage Liens, and (b) the obligation at the Closing
to pay-off (1) the Citizens Loan, (2) the loan referred to in that
certain Joinder Agreement of even date with the Second Amendment
among Park Sterling Bank (“P-S”), GOV FBI Johnson City, LLC,
GOV CBP Cape Canaveral, LLC and the Operating Partnership, a copy
of which is attached to the Second Amendment as Exhibit 2(b)(2) (the
“Smaller
Loan”), and (3) the loan referred to in that certain
Joinder Agreement of even date with the Second Amendment among P-S,
Contributor and the Operating Partnership, a copy of which is
attached to the Second Amendment as Exhibit 2(b)(3) (the
“Larger Loan”);
provided, however,
that notwithstanding anything to the contrary contained in the
Amended Agreement, the aggregate outstanding principal balance of,
and accrued interest on, the Smaller Loan and the Larger Loan shall
be a credit in favor of the Operating Partnership in determining
the OP Unit Consideration.”
(c)
Section 6A.(b) of the Contribution Agreement is deleted in its
entirety and in its place and stead is substituted the
following:
“or (b) the
Operating Partnership shall deliver to the guarantors under the
Guaranties (the ‘Guarantors’) an indemnity
agreement pursuant to which the Operating Partnership (but not
including its general partner) indemnifies the Guarantors from and
against any and all claims, losses, liabilities, actual (but not
punitive or consequential) damages, obligations, judgments, causes
of action, costs and expenses, including, but not limited to, court
costs and attorneys’ fees (collectively, ‘Losses’) suffered or incurred by
any or all of the Guarantors from and after the Closing as a result
of, or due to, any breach or default under the Existing Loans or
MCF which is the result of, or due to, or arises from, any acts or
omissions or any or all of the Operating Partnership and its
affiliates (the ‘Guarantors’
Indemnity’).”
(d) The
ultimate sentence of Section 7 of the Contribution Agreement is
deleted in its entirety, and in its place and stead is substituted
the following:
“The
Operating Partnership will notify the Contributor in writing on or
before the Closing that the Operating Partnership has made such a
determination and intends to proceed with receipt of (x) the
contribution of the Contributor’ LLC Interests for which
Lender Consents have been received or for which no Lender Consents
are required, and (y) the Profits Interests in accordance with the
Amended Agreement and the Profits Assignment (such writing is
referred to herein as the ‘Acceptance
Certificate’).”
5.
Amended Sections 9B
through F. Sections 9B through F of the Contribution
Agreement are deleted in their entirety, and in their place and
stead are substituted the following:
“B.
Conveyance of Title and
Delivery of Closing Documents.
(i) By the Closing
Date, (a) the Contributor shall have delivered (I) all documents
attached to this Agreement and incorporated herein by this
reference, irrespective of whether any such documents pertain to
(x) affiliated companies of the Contributor, the LLC Interests of
which will be contributed to the Operating Company on the Closing
Date, or (y) if the parties are proceeding in accordance with
Section 3(b),
Affected Companies, the LLC Interests of which shall be deemed to
have been contributed on, but not before, the Open Interest Closing
Date and (II) to the extent required by the Code, a non-foreign
status affidavit pursuant to Section 1445 of the Code, in the form
of Exhibit C,
attached to this Agreement and incorporated herein by this
reference, duly executed by the Contributor, and (b) the parties
hereto shall have submitted to the Title Company any other
documents reasonably required by the Title Company for Closing,
including without limitation on a pro forma basis those documents
that the Title Company would reasonably require in respect of the
Affected Companies and the Open LLC Interests, notwithstanding that
the contribution of the Open LLC Interests will not be contributed
until the Open Interest Closing. At Closing, if there be Open LLC
Interests and at the Open Interest Closing Date, if any, the
Contributor shall provide such normal and customary undertakings,
at no cost and expense to the Contributor, as the Title Company may
require to issue the Title Policy or Policies to the Operating
Partnership.
(ii) At
Closing, the Operating Partnership shall deliver to the
Contributor: (a) the Guarantors’ Indemnity, if applicable;
(b) the Second Amendment, executed by the REIT, as sole general
partner of the Operating Partnership; (c) a true and complete copy
of the Operating Partnership Agreement, certified as such by a duly
authorized senior officer of the REIT, as the Operating
Partnership’s sole general partner; (d) counterparts of the
Assignments of Membership Interests and/or the Profits Assignments,
if any, duly executed by the Operating Partnership; (e) a closing
statement conforming to the relevant provisions of this Agreement
(‘Closing
Statement’); (f) the Tax Protection Agreement; (g) the
Acceptance Certificate; and (h) the Registration Rights Agreement.
At Closing, the Contributor shall deliver executed counterparts of
items (b), (d), (e), (f) and (h).
(iii) In addition
to, and not as a limitation upon the provisions of Section 3(b)(iv)
of this Agreement, at each Open Interest Closing, the Contributor
will cause the Affected Company in question to (x) admit the
Operating Company as the sole member of the Affected Company, (y)
the Contributor to withdraw as sole member, and (z) the agency of
the Agent to be terminated.
C.
Payment of Consideration
at Closing and Interest Assignment. On the Closing Date, the
Operating Partnership shall transfer the Consideration to the
Contributor pursuant to Section 3 of the Amended Agreement.
Simultaneously with the delivery of the Consideration, the
Contributor will (i) contribute, transfer, convey, assign and
deliver to the Operating Partnership its respective right, title
and interest in and to those of the Contributor’s LLC
Interests held by the Contributor in all Property LLCs, save and
except for any Property LLC, which on the Closing Date is an
Affected Company, free and clear of all Encumbrances in the case of
the LLC Interests except for the MCF Lien, by executing and
delivering to the Operating Partnership a member interest transfer
agreement substantially in the form of Exhibit D
attached to this Agreement (‘Assignment of Membership
Interests’), and (ii) assign and transfer to the
Operating Partnership the Profits Interests, if any, pursuant to
the Profits Assignment.
D.
Closing Costs. At
Closing or at the Open Interest Closing, as the case may be, the
Operating Partnership shall pay any and all title insurance
premiums and charges for endorsements (including, but not limited
to, any fees for title examination), and any and all escrow fees
and recording or filing fees. The Operating Partnership also shall
pay for the cost of all inspections, including environmental site
assessments and the Survey and the cost of any extended title
coverage or special endorsements. Except as otherwise set forth in
this Agreement, (i) each party shall pay the fees and costs of its
own attorneys and its accounting or financial advisors and their
representatives; and (ii) the Contributor shall not be responsible
for the payment of any costs or expenses incurred in connection
with the subject transaction and contribution.
E.
Post-Closing Real Estate
Pro-Rations and Payments. Irrespective of whether with
reference to (x) Property LLCs, the LLC Interests of which are
being contributed outright to the Operating Partnership at the
Closing, or (y) Affected Companies, if any, the Profits Interests
of which are being assigned pursuant to the Profits Assignment at
the Closing, Contributor shall be entitled beneficially to all
rents due under the Leases with the Property LLCs or the Affected
Companies prior to Closing, and the Operating Partnership shall be
entitled beneficially to all rents due under such Leases from the
date of Closing and thereafter. For the avoidance of doubt, it is
understood and agreed that (a) the Operating Partnership pursuant
to the Profits Interests, shall be entitled beneficially to all
rents due under Leases with the Affected Companies, after the
Closing and through and to and including the Open Interest Closing
Date (the ‘Pertinent
Period’), and (b) from and after the Open Interest
Closing, the Operating Partnership shall be entitled beneficially
to all rents due under Leases with the Property LLCs which on or
prior to the Open Interest Closing Date were Affected Companies but
on and after the Open Interest Closing Date have become
single-member limited liability companies, owned beneficially and
of record by the Operating Partnership in accordance with Section
3(b)(iv) of the Amended Agreement. Contributor has advised
Operating Partnership that under the terms of the Leases (as
defined below), rent is paid one (1) month in arrears. As the
result of the payment in arrears under the Leases, any rent owed
under the Leases during the month in which the Closing occurs (the
‘Closing Month’)
shall be prorated, based upon each party’s period of
ownership of the Property LLCs’ LLC Interests or the Affected
Companies’ Profits Interests, as the case may be, during the
Closing Month. Notwithstanding the foregoing sentence, under the
terms of the Leases, the tenants are, among other things, required
to make certain payments to the Property LLCs and, if such payment
obligations have not been satisfied by Closing, the Operating
Partnership hereby covenants and agrees that it will cause the
Property LLCs from the first payments of rent that are paid to a
Property LLC after Closing to be applied to any rent or other
amounts then due but not paid under such Lease subsequent to
Closing with any excess amount to be held by the Property LLC in
question and promptly reconciled with amounts held thereby on the
Closing Date, which otherwise would have been available to be
distributed to the Contributor by the Property LLC on the Closing
Date or the Open Interest Closing Date, as the case may be, and
shall cause the Property LLC in question to pay the same to the
Contributor. To the extent Contributor receives rent under the
Leases following the tenants’ payments of the Closing Month
Rent, Contributor agrees and covenants to forthwith tender such
payments to Operating Partnership and to cooperate with Operating
Partnership (at no cost to Contributor) to obtain the consent of
the tenants under the Leases to designate the Property LLCs as the
payees under the Leases. Additionally, taxes and any expenses
related to the operation and maintenance of the Properties, shall
all be prorated as of 11:59 p.m., prevailing Richmond, Virginia
time on the day immediately prior to the Closing Date (i.e.,
Operating Partnership is responsible for the expenses on and after
the Closing Date) on the basis of a 365-day year. To the extent
actual expenses are not available, the parties shall use
Contributor’s reasonable estimate of such expense at Closing,
and such expenses shall be re-prorated as soon as reasonably
practical after the Closing Date. The parties acknowledge that
certain reserves are required, and held in escrow, by the holders
of the Existing Loans and the MCF for the payment of taxes,
insurance, capital expenditures, tenant improvements and leasing
commissions associated with the Properties (‘Lender Reserves’). To the extent
that prior to Closing Contributor has funded into any Lender
Reserves in excess of Contributor’s pro rata portion of any
such expenditures, such excess amounts shall be paid to
Contributor. As to the remainder of the Lender Reserves, the
parties agree that Operating Partnership shall pay to Contributor
an amount equal to the remaining Lender Reserves, discounted by an
amount to be established by the parties prior to Closing or the
Open Interest Closing Date, as the case may be, and representing
debt service attributable to the Lender Reserves for which
Operating Partnership shall be obligated as a result of the
assumption of any Existing Loans at the Closing or the Open
Interest Closing, as the case may be. This Section 9.E shall
survive the Closing.
F.
Risk of
Loss.
(i)
If all or any portion of the Real Property is taken, or becomes
subject to a pending taking, by eminent domain, or is conveyed in
lieu thereof, and such taking or conveyance has a material, adverse
effect on the continuing use and operation of the relevant
Property, as such Property is operated as of the Contract Date, or
if the Property LLCs or Contributor receive written notice of any
rezoning of all or any portion of the Real Property, the Operating
Partnership shall have the right and option, at its sole
discretion, to terminate this Agreement in its entirety or only
with respect to the Property LLC holding title to the affected
portion of the Real Property by providing the Contributor with
written notice at any time after its receipt of written
notification from the Contributor of any such occurrence. If the
Operating Partnership elects not to terminate this Agreement, then,
as of the Closing, the Contributor shall deliver to the Operating
Partnership the amount of any award or other proceeds on account of
such taking, conveyance or casualty that has been actually paid to
the Contributor or the Property LLCs prior to the Closing Date as a
result of such taking, conveyance or casualty (less all costs and
expenses, including, without limitation, attorneys’ fees and
costs, incurred by the Contributor or the Property LLCs as of the
Closing Date in obtaining payment of such proceeds or in repairing
or restoring the Real Property) and, to the extent such award or
proceeds have not been delivered to the Contributor or the Property
LLCs, the Contributor shall assign to the Operating Partnership at
Closing (without recourse to the Contributor) any rights of the
Contributor to, and the Operating Partnership shall be entitled to
receive and retain, all awards for the taking of the Real Property
or any portion thereof or conveyance in lieu thereof or insurance
proceeds payable with respect to any damage, as the case may be
(less the costs and expenses described above in this Section 9F to
the extent not previously paid to the Contributor out of the award
or proceeds for the applicable taking, conveyance in lieu thereof
or casualty).
(ii)
In the event of any casualty at any Property prior to Closing, the
Contributor shall cause the relevant Property LLC to use reasonable
and good faith efforts (subject to receipt of insurance proceeds)
to repair and restore the Property prior to Closing. If, however,
the repair or restoration is not completed prior to Closing, then
the parties shall proceed to consummate the Closing and at Closing,
the Contributor shall deliver to the Operating Partnership the
amount of any insurance proceeds on account of such casualty which
have been actually paid to the Contributor or the Property LLCs
prior to the Closing Date as a result of such casualty (less all
costs and expenses, including, without limitation, attorneys’
fees and costs, incurred by the Contributor or the Property LLCs as
of the Closing Date in obtaining payment of such proceeds or in
repairing or restoring the Real Property) and, to the extent such
proceeds have not been delivered to the Contributor or the Property
LLCs, the Contributor shall assign to the Operating Partnership at
Closing (without recourse to the Contributor) any rights of the
Contributor to, and the Operating Partnership shall be entitled to
receive and retain, all insurance proceeds payable with respect to
any damage (less the costs and expenses described above in this
Section 9.F to the extent not previously paid to the Contributor
out of the proceeds for the casualty).”
6. Bring-Down
Representations. In the event that there is an Open Interest
Closing, then as of the Open Interest Closing Date, as a condition
precedent to the occurrence of the Open Interest Closing, each of
the Contributor and the Operating Partnership shall deliver, each
to the other a certificate in form as set forth in Exhibit 6 to this Second
Amendment remaking and re-publishing as of the Open Interest
Closing Date the representations and warranties contained, as to
the Contributor in Sections 11.A., B., C., D., F., H., and I. of
the Contribution Agreement, and as to the Operating Partnership,
the representations and warranties contained in Section 12.A., B.,
and C.
7. Acceptance
of Assignments. Section 15D. of the Contribution Agreement
is deleted in its entirety and in its place and stead is
substituted the following:
“D. The
Operating Partnership shall accept at Closing (x) the delivery of
executed counterparts of the Assignments of Membership Interest and
the Profits Assignment, if any, and (y) at the Open Interest
Closing all of the instruments required by this Second Amendment to
be delivered at an Open Interest Closing, including without
limitation, those instruments and documents described in Section
3(b)(iv) of the Second Amendment and B.(iii) of the Amended
Agreement.”
8. Amendment
of Exhibit B. The definition of “Aggregate
Value” (exclusive of the table) contained in Exhibit B to the
Contribution Agreement is deleted in its entirety, and in its place
and stead is substituted the following:
“
‘Aggregate
Value’ shall mean $9,303,778, increased by principal
amortization from debt service on Existing Loans, MCF, the Smaller
Loan and the Larger Loan from January 1, 2016 to the Closing Date,
which Aggregate Value is allocated among the Properties as
follows:”
9. Incorporation
of Sections. Sections 16 through
33 inclusive of the
Contribution Agreement are incorporated herein by this reference
and made applicable to this Second Amendment with adjustments to
the meanings of defined terms as used therein as may be necessary
to accommodate the context in which such terms are used in this
Second Amendment.
10. Ratification.
The Contribution Agreement, as amended by this Second Amendment, is
hereby ratified, approved and confirmed.
IN
WITNESS WHEREOF, the parties have executed this Second Amendment to
Contribution Agreement, pursuant to due authority, as of the day
and in the month and year first above written.
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CONTRIBUTOR:
HOLMWOOD CAPITAL,
LLC
By:
/s/ Robert R. Kaplan,
Jr.
Robert R. Kaplan, Jr.
Its: Vice
President
OPERATING
PARTNERSHIP:
HC
GOVERNMENT REALTY HOLDINGS, L.P.
By: HC
Government Realty Trust, Inc.
Its:
General Partner
By:
/s/ Robert R. Kaplan,
Jr.
Robert R. Kaplan,
Jr.
Its:
President
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