Formof Contribution And Exchange Agreement

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


i


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, ex ...