Exhibit 10.5


 


 


FORM OF
CONTRIBUTION AND EXCHANGE AGREEMENT


 


 


BY
AND AMONG


 


 


LNR
SECURITIES HOLDINGS, LLC


 


AND


 


LNR
CAPITAL LIMITED PARTNERSHIP


 


 


DATED
AS OF [            ],
200[ ]


 





















 


TABLE
OF CONTENTS


 


	
  ARTICLE I
  DEFINITIONS

  	
   

  
	
  Section 1.1

  	
  Definitions

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE II CONTRIBUTION AND EXCHANGE

  	
   

  
	
  Section 2.1

  	
  Exchange

  	
   

  
	
  Section 2.2

  	
  Assumption of Liabilities

  	
   

  
	
  Section 2.3

  	
  The Closing

  	
   

  
	
  Section 2.4

  	
  Closing Deliveries

  	
   

  
	
  Section 2.5

  	
  Interest

  	
   

  
	
  Section 2.6

  	
  Interests
  Not Assigned

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE III REPRESENTATIONS AND
  WARRANTIES OF LNR SECURITIES

  	
   

  
	
  Section 3.1

  	
  Organization and Authority

  	
   

  
	
  Section 3.2

  	
  Execution and Delivery; Valid and Binding Agreement

  	
   

  
	
  Section 3.3

  	
  Noncontravention

  	
   

  
	
  Section 3.4

  	
  Title to Acquired Assets

  	
   

  
	
  Section 3.5

  	
  Compliance with Laws

  	
   

  
	
  Section 3.6

  	
  Litigation

  	
   

  
	
  Section 3.7

  	
  Certain Securities Law Matters

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV REPRESENTATIONS AND
  WARRANTIES OF LNR OP

  	
   

  
	
  Section 4.1

  	
  Organization of LNR OP

  	
   

  
	
  Section 4.2

  	
  Execution and Delivery; Valid and Binding Agreement

  	
   

  
	
  Section 4.3

  	
  Noncontravention

  	
   

  
	
  Section 4.4

  	
  Certain Securities Law Matters

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE V COVENANTS OF THE PARTIES

  	
   

  
	
  Section 5.1

  	
  Consents and Approvals

  	
   

  
	
  Section 5.2

  	
  Further Assurances

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI SURVIVAL AND INDEMNITY

  	
   

  
	
  Section 6.1

  	
  Survival

  	
   

  
	
  Section 6.2

  	
  Indemnification by LNR Securities

  	
   

  
	
  Section 6.3

  	
  Indemnification by LNR OP

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII MISCELLANEOUS

  	
   

  
	
  Section 7.1

  	
  Press Releases and Public Announcements

  	
   

  
	
  Section 7.2

  	
  Entire Agreement

  	
   

  
	
  Section 7.3

  	
  Succession and Assignment

  	
   

  
	
  Section 7.4

  	
  Counterparts

  	
   

  
	
  Section 7.5

  	
  Headings

  	
   

  
	
  Section 7.6

  	
  Notices

  	
   

  
	
  Section 7.7

  	
  Waiver of Jury Trial

  	
   

  
	
  Section 7.8

  	
  Amendments and Waivers

  	
   

  
	
  Section 7.9

  	
  Severability

  	
   

  



 


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  Section 7.10

  	
  Construction

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibits

  	
  Exhibit Name

  	
   

  
	
   

  	
   

  
	
  A

  	
  [the
  Interests]

  	
   

  
				



 


ii





















 


FORM OF CONTRIBUTION
AND EXCHANGE AGREEMENT


 


This CONTRIBUTION AND EXCHANGE AGREEMENT dated as of [             ],
200[ ] (this “Agreement”), is made by and between LNR Securities
Holdings, LLC, a Delaware Limited Liability Company (“LNR Securities”),
and LNR Capital Limited Partnership, a Delaware Limited Partnership (“LNR OP”).  LNR OP and LNR Securities are referred to
collectively herein as the “Parties.”


 


WHEREAS, LNR Securities owns all right, title and interest in the
assets set forth on Exhibit A attached hereto (the “Interests”);


 


WHEREAS, LNR Securities desires to contribute, transfer and assign to
LNR OP, and LNR OP desires to acquire and assume from LNR Securities, in
accordance with the terms and conditions of this Agreement, all of LNR
Securities’ right, title, and interest in the Acquired Assets and the Assumed
Liabilities (as defined below)],


 


WHEREAS, in exchange for the Acquired Assets, LNR Securities desires to
acquire from LNR OP, and LNR OP desires to issue to LNR Securities, [    ] Common Units (as such term is defined in
the LNR OP Partnership Agreement) of LNR OP (the “OP Units”);


 


NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth in this
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties agree as follows:


 


ARTICLE I



DEFINITIONS


 


Section 1.1             Definitions.  The following terms have the respective
meanings ascribed thereto below:


 


“Acquired Assets” means, collectively, all of LNR Securities’
right, title, and interest in and to the following:  (a) the Interests (b) cash in the
aggregate amount collected by LNR Securities relating to the Interests (whether
pursuant to the terms thereof, or dispositions thereof or otherwise) from and
after the Closing Date.


 


“Affiliate” has the meaning set forth in Rule 12b-2 of the
regulations promulgated under the Securities Exchange Act of 1934, as amended.


 


“Agreement” has the meaning set forth in the Preamble to this
Agreement.


 


“Assumed Liabilities” means, other than the Excluded
Liabilities, all Liabilities of LNR Securities solely arising out of the
Interests, including obligations arising under swaps relating to the Interests
on or after the Closing Date.


 


“Business Day” shall mean any day other than Saturday, Sunday or
any other day on which banks in New York, New York are permitted or required to
be closed.


 





















 


“CMBS” means any pass-through certificate issued by a
securitization vehicle and representing an ownership interest in a pool of
mortgage loans secured by commercial properties.


 


“Closing” has the meaning set forth in Section 2.2.


 


“Closing Date” means the date hereof.


 


“Contemplated Transactions” means the contribution, transfer,
assignment, conveyance and delivery by LNR Securities of the Acquired Assets in
exchange for the OP Units, and the acquisition by LNR OP of the Acquired
Assets, the assumption by LNR OP of the Assumed Liabilities and the issuance by
LNR OP, and the acquisition by LNR Securities of the OP Units.


 


“Documents” means, with respect to the Interests all agreements,
contracts and instruments relating to the creation, distribution, transfer,
ownership and management of such Interests, and the underlying assets from
which such Interest is derived, including, without limitation, the following: (i) all
custody and administration agreements, indentures, notes, preferred equity
interests, fiscal agency agreements, hedge agreements, purchase agreements,
transfer agent agreements, participation agreements, sub-participation
agreements, assignments, participation certificates and similar agreements or
arrangements (other than agreements, contracts and commitments relating to
investments underlying the Interests); (ii) all investment advisory,
management, collateral management, disposition consultant, servicing,
administration and similar agreements to which the relevant Interests are
subject; and (iii) all private placement memoranda, offering circulars or
other offering material with respect to the offering for sale of the CMBS.


 


“Excluded Liabilities” means all Liabilities of LNR Securities
pertaining to the Interests arising out of, or relating to, any period, event,
action or omission on or prior to the Closing Date as specifically set forth in
Schedule 1 attached hereto.


 


“Governmental Authority” means any: (i) nation, state,
county, city, town, village, district, or other jurisdiction of any nature; (ii) federal,
state, local, municipal, foreign, or other government; (iii) governmental
or quasi-governmental authority of any nature (including any governmental
agency, branch, department, official, or entity and any court or other
tribunal); or (iv) body exercising, or entitled to exercise, any
administrative, executive, judicial, legislative, police, regulatory, or taxing
authority or power of any nature.


 


“Interests” has the meaning set forth in the Recitals to this
Agreement.


 


“Law” has the meaning set forth in Section 3.3.


 


“Liability” means any debt, claim, obligation or liability
(whether known or unknown, whether asserted or unasserted, whether absolute or
contingent, whether accrued or unaccrued, whether liquidated or unliquidated,
and whether due or to become due).


 


“Lien” means any lien, charge, option, pledge, assignment,
mortgage, security interest, preemptive right, right of first refusal or
encumbrance of any kind.


 


2





















 


“LNR OP” has the meaning set forth in the Preamble to this
Agreement.


 


“LNR OP Indemnified Parties” has the meaning set fort in section 6.3


 


“LNR OP Partnership Agreement” shall mean the Agreement of
Limited Partnership of LNR OP, dated as of [                    ].


 


“LNR Securities” has the meaning set forth in the Preamble to
this Agreement.


 


“LNR Securities Indemnified Parties” has the meaning set fort in
section 6.2


 


“OP Units” has the meaning set forth in the Recitals of this
Agreement.


 


“Organizational Documents” means (a) the articles or
certificate of incorporation and the bylaws of a corporation; (b) the
partnership agreement and any statement of partnership of a general
partnership; (c) the limited partnership agreement and the certificate of
limited partnership of a limited partnership; (d) the certificate of
formation and operating agreement of a limited liability company; (e) any
charter, bylaw, operating agreement or similar document not described in (a) through
(d) above adopted or filed in connection with the creation, formation,
organization or operation of a Person, including the foreign equivalent thereof
with respect to non-US Persons; and (f) any amendment or contemplated
amendment to any of the foregoing.


 


“Permitted Lien” means any (i) Liens being contested by LNR
Securities in good faith and for which appropriate reserves are reflected in
LNR Securities’ financial statements, (ii) Liens for Taxes not yet due or
payable, and (iii) Liens; covenants; conditions; building, zoning or other
restrictions; reservations; rights; utility or other easements; encumbrances;
encroachments; installments of special assessments not yet due and payable;
set-back requirements; and other similar items generally applicable and/or
affecting title to property of a similar character, in each case that would
not, individually or in the aggregate, interfere with or diminish in a material
and adverse manner the LNR OP’s use or ownership of the Acquired Assets.


 


“Parties” has the meaning set forth in the Preamble to this
Agreement.


 


“Person” means an individual, a partnership, a corporation, a
limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization, or a Governmental Entity.


 


“Required Transfer Documentation” means any documentation
necessary to transfer and assign the Interests and the Assumed Liabilities to
LNR OP, including without limitation any documentation required under the
Documents, and other good and sufficient instruments of conveyance and transfer
reasonably necessary to vest in the LNR OP all the legal and equitable, title
and interest of LNR OP in the Interests and to vest in LNR OP all legal
responsibility for the Assumed Liabilities.


 


“Securities Act” means the Securities Act of 1933, as amended.


 


3





















 


ARTICLE II


 


CONTRIBUTION AND EXCHANGE


 


Section 2.1             Exchange.  Upon the terms hereof,


 


(a)           LNR Securities
hereby contributes, assigns, transfers and delivers to LNR OP, and LNR OP
hereby acquires from LNR Securities, all the right title and interest in the
Acquired Assets.


 


(b)           LNR OP hereby
agrees to issue to LNR Securities, and LNR Securities shall acquire from LNR
OP, [             ]
OP Units.


 


Section 2.2             Assumption of Liabilities.  On and subject to the terms and conditions of
this Agreement, LNR OP hereby assumes and becomes responsible for, and LNR
Securities hereby transfers, conveys, and assigns or causes to be transferred,
conveyed and assigned to LNR OP, all of the Assumed Liabilities.


 


Section 2.3             The Closing.  The closing of the transactions contemplated
by this Agreement (the “Closing”) is taking place in connection with the
consummation of LNR Capital Corporation’s initial public offering of its common
stock and with the execution of this Agreement at the offices of Schulte Roth &
Zabel LLP, 919 Third Avenue, New York, New York 10022 or at such time and place
as the Parties shall mutually agree.  For
all purposes hereunder (a) the date of this Agreement shall be referred to
as the “Closing Date,” and (ii) the Closing shall be deemed to have
occurred at 11:59 p.m. on the Closing Date.


 


Section 2.4             Closing Deliveries.  Contemporaneously herewith, and
simultaneously with the other Parties’ deliveries hereunder:


 


(a)           LNR Securities
shall deliver to LNR OP:


 


(i)            the Acquired Assets,
including, without limitation, copies of, and all of LNR Securities right title
and interest to, any Documents in its possession or in the possession of a
third party custodian;


 


(ii)           the Required Transfer
Documentation, executed by LNR Securities and, to the extent required, any
third party custodian;


 


(iii)          the original notes duly
endorsed in blank;


 


(iv)          all notices and instructions
required to be delivered to DTC or any other holder of a global note or entity
that maintains the book entry registration system for the Interests, executed
by LNR Securities; and


 


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(v)           and the counterpart of the
LNR OP Partnership Agreement.


 


(b)           LNR OP shall
deliver to LNR Securities:


 


(i)            certificates representing [                 ]
OP Units to be issued to it, duly executed by LNR OP and issued in the name of
LNR Securities;


 


(ii)           any Required Transfer
Documentation, executed by LNR OP.


 


Section 2.5             Interest.  LNR OP agrees
to transmit to LNR Securities any accrued interest actually received by LNR OP
with respect to the Acquired Assets for the period prior to the Closing within
5 Business Days of the receipt thereof by LNR OP.  If accrued interest is sent to LNR Securities
with respect to the Acquired Assets for the period following the Closing, LNR
Securities agrees to transmit any such accrued interest to LNR OP within 5
Business Days of the receipt thereof by LNR Securities.


 


Section 2.6             Interests Not Assigned.  To the extent that the
transfer or assignment of any Interests requires the consent of another party
thereto, and such consent has not been obtained as of the date hereof, then:


 


(a)           this Agreement
shall not constitute an agreement to transfer or assign the same if an
assignment or attempted assignment constitutes a breach of such Interests or
Documents or a violation of applicable law, unless LNR OP agrees to hold
harmless LNR Securities with respect thereto;


 


(b)           the Parties agree
to use reasonable commercial efforts to obtain the written consent of the
counterparties thereto with respect to the transfer or assignment of such
Interests;


 


(c)           the Parties
shall in good faith negotiate to effectuate such arrangements as are necessary
to put the Parties in as close an economic position as they would be in had the
relevant consents been obtained and the relevant Interests assigned
contemporaneously herewith.  The Parties
acknowledge and agree that any such arrangements could require, among other
things, (i) LNR Securities to remain subject to its obligations under any
Interests with respect to which a consent to assignment is required under the
applicable contract but has not been delivered, (ii) LNR OP to perform on
behalf of LNR Securities the obligations of LNR Securities under such contract,
and to promptly reimburse LNR Securities for any and all reasonable
out-of-pocket costs, expenses or losses, including reasonable attorneys’ fees,
incurred by LNR Securities as a result of LNR Securities taking, at the request
of LNR OP, legal or other action on behalf of or for the benefit of LNR OP with
respect to such contracts or as a result of LNR OP’s failure to perform LNR
Securities’ obligations under such contracts arising on or after the Closing
and to indemnify LNR Securities for any Loss relating to LNR OP’s failure to so
perform, (iii) LNR Securities to promptly remit to LNR OP any payments or
refunds received by LNR Securities from any party under the applicable
contract, (iv) LNR Securities to cooperate in any lawful arrangement
requested by LNR OP designed to provide the benefits of the Acquired Assets to
the LNR OP, and (v) LNR Securities to enforce, at the request of and for
the


 


5





















 


account of and the expense of the LNR OP, any
rights of LNR Securities arising from any such Documents against any third
party, including the right to elect to terminate in accordance with the terms
thereof upon the advice of LNR OP, all in a manner consistent with the purposes
and intent of this Agreement; and


 


(d)           if and when any
such consent shall be obtained, LNR Securities shall promptly transfer or
assign, as applicable, such Interests to LNR OP without payment of additional
consideration.


 


ARTICLE III


 


REPRESENTATIONS AND
WARRANTIES

OF LNR SECURITIES


 


LNR Securities hereby represents and warrants to LNR OP, as of the date
of this Agreement, as follows:


 


Section 3.1             Organization and Authority.  LNR Securities is a limited liability company
duly formed, validly existing, and in good standing under the laws of the State
of Delaware with all requisite power and authority to execute and deliver this
Agreement and Required Transfer Documentation and to perform the respective
obligations to consummate the Contemplated Transactions hereunder and
thereunder to be performed by it.


 


Section 3.2             Execution and Delivery;
Valid and Binding Agreement.   (a)   The execution, delivery and performance by LNR
Securities of this Agreement and the Required Transfer Documentation, and the
consummation of the Contemplated Transactions, have been duly and validly
authorized by all requisite limited liability company proceedings on the part
of LNR Securities, and no other limited liability company proceedings on the
part of LNR Securities are necessary to authorize the execution, delivery and
performance by LNR Securities of this Agreement or the Required Transfer
Documentation.


 


(b)           This Agreement
has been duly executed and delivered by LNR Securities and, assuming that this
Agreement is the valid and binding agreement of LNR OP, constitutes the valid
and binding obligation of LNR Securities, enforceable against LNR Securities in
accordance with its terms, except as such enforcement may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other laws of
general application affecting enforcement of creditors’ rights or by general
principles of equity.


 


Section 3.3             Noncontravention.  Neither the execution and the delivery of
this Agreement by LNR Securities, nor the consummation by LNR Securities of the
Contemplated Transactions, will (a) violate (i) any constitution,
statute, regulation, rule, injunction, judgment, order, decree, ruling, charge,
or other restriction (each, a “Law”) of any Governmental Entity to which
LNR Securities is subject, (ii) any provision of the Organizational
Documents of LNR Securities, or (iii) any agreement, indenture or
instrument to which any of LNR Securities is a party, or (b) require LNR
Securities to give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any Governmental Entity or other third
party in order for LNR Securities to consummate the Contemplated Transactions,
except, in the case of the


 


6





















 


foregoing clauses (a)(i), (a)(iii) and
(b), for any such violations, conflicts, breaches, defaults, rights of
acceleration, terminations, cancellations, requirements or other actions or
notices that are not reasonably likely, individually or in the aggregate, to
result in a material adverse effect on the Acquired Assets, taken as a whole or
the ability of LNR Securities to consummate the Contemplated Transactions.


 


Section 3.4             Title to Acquired Assets.  As of the date of this Agreement, all of the Acquired
Assets are owned by LNR Securities and LNR Securities has good title to all of
such Acquired Assets, free and clear of Liens other than the Permitted
Liens.  At Closing, LNR Securities will
transfer, and LNR OP will acquire, good and marketable title to the Acquired,
free and clear of any Liens other than Permitted Liens.


 


Section 3.5             Compliance with Laws. LNR
Securities has been and is in compliance with all Laws applicable to the
Acquired Assets, except where such noncompliance would not result in any
change, event or circumstance that has or is reasonably likely, individually or
in the aggregate, to have a material adverse effect on the Acquired Assets,
taken as a whole or the ability of LNR Securities to consummate the
Contemplated Transactions.


 


Section 3.6             Litigation.    As of the date of this Agreement, there is
no action, suit, investigation or proceeding pending, or, to the knowledge of
LNR Securities, threatened against LNR Securities before any Governmental
Entity specifically relating to the ownership of the Acquired Assets.  LNR Securities has no pending action against
any third party relating specifically to the ownership of the Acquired
Assets.  There are no unsatisfied
judgments or material outstanding orders, writs, injunctions, decrees,
settlements, stipulations or awards (whether rendered by a court or
Governmental Entity or by arbitration) against LNR Securities specifically
relating to the ownership of the Acquired Assets.  There is in effect no temporary restraining
order, injunction or similar equitable relief applicable to LNR Securities
prohibiting or seeking to prohibit consummation of the Contemplated
Transactions.


 


Section 3.7             Certain Securities Law
Matters.  (a)  LNR Securities is an
“accredited investor” as such term is defined in Regulation D promulgated under
the Securities Act.  LNR Securities is
acquiring the OP Units for its own account for investment and with no present
intention of distributing or reselling such securities or any part thereof in
any transaction which would constitute a “distribution” within the meaning of
the Securities Act.  LNR Securities
understands that the OP Units have not been registered under the Securities Act
or any state securities laws and are being transferred to LNR Securities in part,
in reliance on the foregoing representation. 
LNR Securities understands that the OP Units may not be sold,
transferred, offered for sale, pledged, hypothecated or otherwise disposed of
without registration under the Securities Act and any applicable state securities
laws, except pursuant to an exemption from such registration under such Act and
such laws.  LNR Securities is able to
bear the economic risk of holding the OP Units for an indefinite period, and
has knowledge and experience in financial and business matters such that it is
capable of evaluating the risks of the investment in the OP Units. LNR
Securities has had the opportunity to perform such due diligence regarding the
OP Units as deemed by it to be reasonably necessary and appropriate in the circumstances,
and except for the specific representations and warranties set forth herein, is
relying solely upon its own due diligence and analysis of the economic, legal
and tax aspects of owning the OP Units and consummating the Contemplated
Transactions.


 


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(b)           LNR Securities
is a Qualified Purchaser as defined in Section 2(a)(51) of the Investment
Company Act.


 


ARTICLE IV


 


REPRESENTATIONS AND
WARRANTIES OF LNR OP


 


LNR OP hereby represents and warrants to LNR Securities, as of the date
of this Agreement, as follows:


 


Section 4.1             Organization of LNR OP.  LNR OP is a limited partnership duly formed,
validly existing, and in good standing under the laws of the State of Delaware
with all requisite power and authority to execute and deliver this Agreement
and Required Transfer Documentation to be delivered by it and to perform the
respective obligations to consummate the Contemplated Transactions hereunder
and thereunder to be performed by it.


 


Section 4.2             Execution and Delivery;
Valid and Binding Agreement.  (a)   The execution, delivery and performance by LNR
OP of this Agreement and the Required Transfer Documentation, and the
consummation of the Contemplated Transactions, have been duly and validly
authorized by all requisite limited partnership proceedings on the part of LNR
OP, and no other limited partnership proceedings on its part are necessary to
authorize the execution, delivery and performance of this Agreement or the
Required Transfer Documentation.


 


(b)           This Agreement
has been duly executed and delivered by LNR OP and, assuming that this
Agreement is the valid and binding agreement of LNR Securities, constitutes the
valid and binding obligation of LNR OP, enforceable against LNR OP in
accordance with its terms, except as such enforcement may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other laws of
general application affecting enforcement of creditors’ rights or by general
principles of equity.


 


Section 4.3             Noncontravention.  Neither the execution and the delivery of
this Agreement nor the consummation of the Contemplated Transactions, will to
LNR OP’s knowledge (a) violate (i) any Law to which LNR OP is
subject, (ii) any provision of LNR OP’s Organizational Documents, or (iii) any
agreement, indenture or instrument to which the Buyer is a party, or (b) require
LNR OP to give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any Governmental Entity or other third
party in order for LNR OP to consummate the Contemplated Transactions, except,
in the case of the foregoing clauses (a)(i), (a)(iii) and (b), for any
such violations, conflicts, breaches, defaults, rights of acceleration,
terminations, cancellations, requirements or other actions or notices that are
not reasonably likely, individually or in the aggregate, to result in a
material adverse effect on the OP Units.


 


Section 4.4             Certain Securities Law
Matters.  (a)  LNR OP is an “accredited
investor” as such term is defined in Regulation D promulgated under the
Securities Act.  LNR OP is acquiring the
Interests for its own account for investment and with no present intention of
distributing or reselling such securities or any part thereof in any
transaction which would


 


8





















 


constitute a “distribution” within the
meaning of the Securities Act.  LNR OP
understands that the Interests have not been registered under the Securities
Act or any state securities laws and are being transferred to LNR OP in part,
in reliance on the foregoing representation. 
LNR OP understands that the Interests may not be sold, transferred,
offered for sale, pledged, hypothecated or otherwise disposed of without
registration under the Securities Act and any applicable state securities laws,
except pursuant to an exemption from such registration under such Act and such
laws.  LNR OP is able to bear the
economic risk of holding the Interests for an indefinite period, and has knowledge
and experience in financial and business matters such that it is capable of
evaluating the risks of the investment in the Interests. LNR OP has had the
opportunity to perform such due diligence regarding the Interests as deemed by
it to be reasonably necessary and appropriate in the circumstances, and except
for the specific representations and warranties set forth herein, is relying
solely upon its own due diligence and analysis of the economic, legal and tax
aspects of owning the Interest sand consummating the Contemplated Transactions.


 


(b)           LNR OP is a
Qualified Purchaser as defined in Section 2(a)(51) of the Investment
Company Act.


 


ARTICLE V


 


COVENANTS OF THE PARTIES


 


Section 5.1             Consents and Approvals.  Subject to the terms hereof, with respect to
any consents, approvals or filings which have not been obtained or made as of
the date hereof, or which by the nature of the relevant consent, approval or
filing cannot be obtained or made prior to Closing, the Parties shall use their
respective commercially reasonable efforts to, as promptly as practicable (i) take,
or cause to be taken, all actions, and do, or cause to be done, and to assist
and cooperate with the other parties in doing, all things necessary, proper or
advisable to obtain such consents or approvals (ii) make all necessary filings,
and thereafter make any other required submissions, with respect to this
Agreement and the Required Transfer Documentation required under any applicable
federal or state securities Laws and any other applicable Law, and (iii) execute
and/or deliver any additional instruments necessary to fully carry out the
purposes of this Agreement.  The Parties
shall cooperate with each other in connection with obtaining such consents or
approvals or the making of all such filings, including providing copies of all
such documents to the non-filing party and its advisors prior to filing.  The Parties shall use their respective
commercially reasonable efforts to furnish to each other all information
required for any application or other filing to be made pursuant to the rules and
regulations of any applicable Law in connection with any of the transactions
contemplated hereby.


 


Section 5.2             Further Assurances.  The Parties shall cooperate reasonably with
each other and with their respective representatives in connection with any
steps required to be taken as part of their respective obligations under this
Agreement, and shall (a) furnish upon request to each other such further
information; (b) execute and deliver to each other such other documents;
and (c) do such other acts and things, all as the other party may
reasonably request for the purpose of carrying out the intent of this
Agreement; provided, however, that neither


 


9





















 


Party shall be required to make any material
change to its business, expend any material funds or incur any other material
burden in order to comply with this Section 5.2.


 


ARTICLE VI


 


SURVIVAL AND INDEMNITY


 


Section 6.1             Survival.  All of the representations and warranties of
LNR Securities contained in Article III above, and all of the
representations and warranties of the LNR OP contained in Article IV
above, shall survive the Closing hereunder and continue in full force and
effect for a period of one year following the Closing Date.  The Parties’ respective covenants and
agreements to be performed at or after the Closing Date contained in this
Agreement shall survive indefinitely unless otherwise set forth herein.


 


Section 6.2             Indemnification by LNR
Securities.  LNR
Securities agrees to indemnify LNR OP and its Affiliates and their officers,
directors, managers, members, employees and stockholders (collectively, the “LNR
OP Indemnified Parties”) from, and hold them harmless against any Losses,
which any of the LNR OP Indemnified Parties sustain that are caused by, arise
out of or are a result of any of the following: (i) any material breach of
any of the representations and warranties of LNR Securities contained in this
Agreement (except for those representations and warranties that are qualified
by materiality, for which LNR Securities agrees to indemnify for any breach); (ii) any
material breach of, or failure to perform, any agreement of LNR Securities
contained in this Agreement, or (iii) the Excluded Liabilities.


 


Section 6.3             Indemnification by LNR OP.  LNR OP agrees to indemnify LNR Securities,
and its Affiliates, officers, directors, managers, members, employees and
stockholders (collectively, the “ LNR Securities Indemnified Parties”)
from, and hold them harmless against, any Losses which any of the LNR
Securities Indemnified Parties suffer, sustain or become subject to that are
caused by or are a result of any of the following: (i) any material breach
of any of the representations and warranties of LNR OP contained in this
Agreement (except for those representations and warranties that are qualified
by materiality, for which LNR OP agrees to indemnify for any breach), (ii) any
material breach of, or failure to perform, any agreement of LNR OP contained in
this Agreement, or (iii) the Assumed Liabilities.


 


ARTICLE VII


 


MISCELLANEOUS


 


Section 7.1             Press Releases and Public
Announcements.  No Party
shall issue any press release or make any public announcement relating to the
subject matter of this Agreement without the prior written approval of the other
Party; provided, however, that any Party may make any public disclosure
required by applicable Law (in which case the disclosing Party will use
commercially reasonable efforts to advise the other Party prior to making the
disclosure).


 


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Section 7.2             Entire Agreement.  This Agreement constitutes the entire
agreement between the Parties and supersedes any prior understandings,
agreements, or representations by or between the Parties, written or oral, to
the extent they related in any way to the subject matter hereof and thereof.


 


Section 7.3             Succession and Assignment.  This Agreement shall be binding upon and
inure to the benefit of the Parties named herein and their respective
successors and permitted assigns. No Party may assign either this Agreement or
any of its rights, interests, or obligations hereunder without the prior
written approval of the other Party.


 


Section 7.4             Counterparts.  This Agreement may be executed in one or more
counterparts, and by different parties on different counterparts, each of which
shall be deemed an original but all of which together will constitute one and
the same instrument.


 


Section 7.5             Headings.  The section headings contained in this
Agreement are inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.


 


Section 7.6             Notices.  All notices, requests, demands, claims, and
other communications hereunder will be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly given if (and then
three Business Days after) it is sent by registered or certified mail, return
receipt requested, postage prepaid, and addressed to the intended recipient as
set forth below:


 


If to LNR Securities:


 


LNR Securities Holdings, LLC

c/o LNR Property Holdings Ltd.

1601 Washington Avenue, Suite 800


Miami Beach, Florida 33139

Attention: General Counsel

Facsimile: (305) 695-5500


 


Copy to:


 


Schulte Roth & Zabel LLP


919 Third Avenue


New York, New York 10022

Facsimile: (212) 593-5955

Attention: André Weiss, Esq.


 


If to the LNR OP:


 


LNR Capital Operating Partnership, LP

c/o LNR Property Holdings Ltd.

1601 Washington Avenue, Suite 800


 


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Miami Beach, Florida 33139

Attention: General Counsel

Facsimile: (305) 695-5500


 


Copy to:


 


Schulte Roth & Zabel LLP


919 Third Avenue


New York, New York 10022

Facsimile: (212) 593-5955

Attention: André Weiss, Esq.


 


Any Party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no such notice,
request, demand, claim, or other communication shall be deemed to have been
duly given unless and until it actually is received by the intended recipient.
Any Party may change the address to which notices, requests, demands, claims,
and other communications hereunder are to be delivered by giving the other
Party notice in the manner herein set forth. 
This Agreement shall be governed by and construed in accordance with the
domestic laws of the State of New York without giving effect to any choice or
conflict of law provision or rule (whether of the State of New York or any
other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of New York. 
Any proceeding seeking to enforce any provision of, or based on any
right arising out of, this Agreement may only be brought against any of the
Parties in the courts of the State of New York, County of New York, or, if it
has or can acquire jurisdiction, in the United States District Court for the
Southern District of New York, and each of the Parties consents to the
jurisdiction of such courts (and of the appropriate appellate courts) in any
such action or proceeding and waives any objection to venue laid therein.


 


Section 7.7             Waiver of Jury Trial.  EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT
OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT.  EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH
SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER AND (C) EACH
SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS SET FORTH HEREIN.


 


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Section 7.8             Amendments and Waivers.  No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by the
Parties.  No waiver by any Party of any
default, misrepresentation, or breach of warranty or covenant hereunder,
whether intentional or not, shall be deemed to extend to any prior or
subsequent default, misrepresentation, or breach of warranty or covenant
hereunder or affect in any way any rights arising by virtue of any prior or
subsequent such occurrence.


 


Section 7.9             Severability.  Any term or provision of this Agreement that
is invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision in
any other situation or in any other jurisdiction.


 


Section 7.10           Construction. The Parties
have participated jointly in the negotiation and drafting of this Agreement. In
the event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the Parties and no presumption
or burden of proof shall arise favoring or disfavoring any Party by virtue of
the authorship of any of the provisions of this Agreement. Any reference to any
federal, state, local, or foreign statute or law shall be deemed also to refer
to all rules and regulations promulgated thereunder, unless the context
requires otherwise. The word “including” means “including without limitation.”


 


 


[SIGNATURES
ON FOLLOWING PAGE]


 


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


 


 


	
   

  	
  LNR SECURITIES HOLDINGS, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  LNR CAPITAL LIMITED PARTNERSHIP

  
	
   

  	
   

  	
   

  
	
   

  	
  By: LNR Capital Corporation, its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 





















 


Exhibit A


 


[the
Interests]