Exhibit 10.2



 

Exhibit 10.2




MEMBERSHIP INTEREST ASSIGNMENT AGREEMENT




THIS MEMBERSHIP INTEREST ASSIGNMENT AGREEMENT (the “Agreement”) is made as of October 22, 2010
by Andrea R. Biller (“Assignor”) and Grubb & Ellis Equity Advisors, LLC, a Delaware limited
liability company (“GEEA”) and Grubb & Ellis Equity Advisors, Property Management, Inc., a Delaware
corporation (“GEEA PM”, and together with GEEA, “Assignee”).



RECITALS:




A. As of the date hereof, Assignor owns 180,000 Class A membership shares (the “Interest”) in
Grubb & Ellis Apartment Management, LLC (the “Company”).



B. Assignor wishes to transfer to GEEA, and GEEA wishes to obtain from Assignor, 170,000 Class
A membership shares of the Company (the “GEEA Interest”) for the consideration and in the manner
and on the terms and conditions hereinafter set forth.



C. Assignor wishes to transfer to GEEA PM, and GEEA PM wishes to obtain from Assignor, 10,000
Class A membership shares of the Company (the “GEEA PM Interest”) for the consideration and in the
manner and on the terms and conditions hereinafter set forth.



NOW, THEREFORE, for and in consideration of (i) Ten Dollars ($10.00) cash, (ii) the payment of
the Mission Payment, (iii) the mutual covenants contained herein, and (iv) other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:



1. Transfer of Interest. Assignor hereby conveys, assigns, transfers and sets over to
(i) GEEA, the GEEA Interest and (ii) to GEEA PM, the GEEA Interest, and each Assignee hereby
accepts from Assignor, all of Assignor’s right, title and interest in the Interest assigned to
Assignee, as of the date hereof.




2. Representations and Warranties of Assignor and Assignee.



(a) Assignor represents and warrants that (i) Assignor is the lawful owner of the Interest
free and clear of all liens, encumbrances and other claims of all third persons whatsoever and (ii)
Assignor has the absolute right to transfer the Interest.



(b) Assignee represents and warrants that Assignee’s acquisition of the Interest is made for
Assignee’s account for investment purposes only, and not with a view to the resale or distribution
thereof.



(c) These representations and warranties are intended to and shall survive the transfer of the
Interest pursuant to this Agreement.



3. Mission Payment. The parties agree that Assignor shall be paid an amount (the
“Mission Payment”) equal to the payment Assignor would have received based on the acquisition fees
earned by Grubb & Ellis Apartment REIT Advisor, LLC as a direct result of the successful closing of
the Mission Transaction (as defined below) had Assignor not transferred the Interest pursuant to
this Agreement and remained a member of the Company. The “Mission Transaction” shall be defined as
the acquisition by Grubb & Ellis Apartment REIT, Inc. through its subsidiary Grubb & Ellis
Apartment REIT Holdings, L.P., of nine multifamily apartment properties from affiliates of MR
Holdings, LLC (“MR Holdings”) (of which one property is owned by a limited partnership for which an
affiliate of MR Holdings serves as general partner and the other eight are owned by Delaware
Statutory Trusts for which an affiliate of MR


 


 









 





Holdings serves as trustee) and the acquisition of all or substantially all of the assets,
including property management agreements, of Mission Residential Management, LLC, as more fully
described in that certain 8K filing of Grubb & Ellis Apartment REIT, Inc. dated August 31, 2010.
For purposes of this Agreement, the “Mission Transaction” shall not include any other acquisition
or transaction between Grubb & Ellis Apartment REIT and MR Holdings or its affiliates, including,
without limitation, the acquisition of any tenant-in-common properties managed by MR Holdings or
its affiliates. Such Mission Payment shall only be paid if and when advisory fees are earned and
paid to Grubb & Ellis Apartment REIT Advisor, LLC, and shall be calculated consistent with past
practices relating to distributions to members. The obligation to pay the Mission Payment shall
expire and be null and void for any portion of the Mission Transaction that closes after December
31, 2011. The parties agree that the Mission Payment is not in consideration for rights to
property but is in lieu of future income as described in Section 736(a) of the Internal Revenue
Code.



4. Release. Assignor hereby releases Assignee, the Company, and their respective
affiliates, agents, representatives and employees from any and all claims or liability relating to
the Interest during the Assignor’s period of ownership. Assignor agrees that, other than the
Mission Payment, any and all distributions or other payment amounts due and owing to Assignor in
connection with the Interests, the Company, Grubb & Ellis Apartment REIT Advisor, LLC and/or any
and all advisory contracts, advisory fees, ownership interests or contractual rights to payment
associated with Grubb & Ellis Apartment REIT Inc., have been paid and satisfied in full. For
purposes of the foregoing, Assignor hereby specifically waives the provisions of Section 1542 of
the California Civil Code and any similar law of any other jurisdiction. Section 1542 provides:




A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW
OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH
IF KNOW BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.




ASSIGNOR HEREBY EXPRESSLY ACKNOWLEDGES THAT ASSIGNOR HAS CAREFULLY REVIEWED THIS
SECTION AND DISCUSSED IT WITH LEGAL COUNSEL OR WAIVED SUCH RIGHT TO DISCUSS WITH
COUNSEL AND THAT THE PROVISIONS OF THIS SECTION ARE A MATERIAL PART OF THIS
AGREEMENT.




Assignor’s
Initials:      /s/ ARB     





To the extent required under applicable law, the parties agree that the disclaimers in this
Agreement are “conspicuous” disclaimers for purposes of any applicable law.



5. Resignation from Board of Managers. Assignor hereby resigns from the Board of
Managers of the Company and from any officer position with the Company.



6. Enforceability. This Agreement has been duly executed by and delivered by and
constitutes a valid and binding agreement of the parties and is enforceable against the parties in
accordance with its terms.



7. Benefit. This Agreement shall be binding upon, and shall inure to the benefit of,
the parties hereto and their respective assigns and successors in title or interest.


 


 









 





8. Applicable Law. This Agreement shall be interpreted and enforced in accordance
with the laws of the State of California, without regard to any conflicts of law provisions or
principles thereof to the contrary.



9. Entire Agreement and Modification. This document contains the entire agreement
between the parties hereto with respect to the subject matter herein. This Agreement shall not be
modified unless, and then only to the extent that, a written modification is executed by all of the
parties hereto or their respective successors or assigns.



10. Counterparts. This Agreement may be executed in counterparts, and any executed
counterparts shall be binding the parties hereto and inure to their benefit as though all parties
were signatory to the same counterpart.



[SIGNATURES APPEAR ON THE FOLLOWING PAGES]



 


 









 





IN WITNESS WHEREOF, the parties have executed this Agreement as of the first date written
above.



	 	 	 	 	 	 	 	 	 
	 	 	ASSIGNOR:	 	ANDREA R. BILLER
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	/s/ Andrea R. Biller
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	ASSIGNEE:	 	Grubb & Ellis Equity Advisors, LLC,
	 	 	 	 	a Delaware limited liability company
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 
	 	By:
	 	/s/ Jeff Hanson
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:
	 	Jeff Hanson
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Title:
	 	President
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	ASSIGNEE:	 	Grubb & Ellis Equity Advisors, Property Management, Inc.
	 	 	 	 	a Delaware corporation
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:
	 	/s/ Jeff Hanson
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:
	 	Jeff Hanson
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Title:
	 	President