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XXXXXXXXX
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XXX XXXX XXXXXX, INC.
AND
AVANTOR INTERNATIONAL AS
ADDENDUM NO. 1
This Addendum No. 1 is made and entered into as of June __, 1996 among RGI
REAL ESTATE, INC. ("RGI Real Estate"), AVANTOR INTERNATIONAL AS ("Avantor
International"), and RGI HOLDINGS, INC. (the "Company").
RECITALS
A. RGI Real Estate, Avantor International, and the Company entered into
an Agreement dated July 3, 1995 (the "Agreement"), pursuant to which RGI Real
Estate and Avantor International agreed to establish, own, manage and control
the Company. Capitalized terms used herein but not defined herein shall have
the respective meanings set forth in the Agreement.
B. Since the Company was established and the initial shares were issued,
RGI Real Estate and Avantor International have made or agreed to make additional
capital contributions to the Company. The purpose of this Addendum is to
confirm the amount of such additional capital contributions, the amount of
additional shares to be issued to each Shareholder in consideration therefor,
and certain other modifications to the Agreement which have been approved by the
parties.
NOW, THEREFORE, the parties agree to amend the Agreement as follows:
AGREEMENT
1. ISSUANCE OF ADDITIONAL SHARES.
1.1 The Articles of Incorporation of the Company shall be amended in the
form of Exhibit A attached hereto to increase the authorized shares of the
Company from 100,000 to 200,000.
1.2 All transfers of assets to the Company in exchange for additional
stock are intended to qualify for nonrecognition treatment under Section 351 of
the U.S. Internal Revenue Code.
1.3 The Company shall issue an additional 8,044 shares to Avantor
International in exchange for an additional capital contribution from Avantor
International in the sum of thirty-five million Norwegian kroners (NOK
35,000,000).
1.4 The Company shall issue an additional 60,956 shares to RGI Real Estate
in exchange for additional capital contributions from RGI Real Estate in the
form of (a) cash in the sum of $3,500,000, (b) 10,000 shares of the common stock
of RGI Realty, Inc. (which owns 2,450,571 shares of the common stock of Xxxxx
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Equity, Inc. with an estimated fair market value of approximately $32 million),
(c) promissory notes previously issued to RGI Real Estate by the Company or its
subsidiaries in an aggregate principal amount of $18,508,226 (the details of
which are set forth in Exhibit B attached hereto), and (d) contract rights
contributed to the Company in connection with (i) the acquisition by the Company
of approximately $33.5 million in debt of Banyan Mortgage Investment Fund
("Banyan") and its affiliates at a discount of approximately $4 million, (ii)
the Agreement and Plan of Merger among the Company, RGI U.S. Holdings, Inc., and
Banyan dated as of April 12, 1996, as amended and restated as of May 20, 1996,
pursuant to which the Company has acquired 7,466,666 shares of Banyan common
stock in a private placement and RGI U.S. Holdings, Inc. will be merged into
Banyan in exchange for an additional 109,674,667 shares of Banyan stock
("Merger"), and (iii) the acquisition by Grand Harbor Associates, Inc. of an
additional 45% ownership interest in the Grand Harbor project in Florida.
2. VALUATION OF ADDITIONAL CONSIDERATION.
For purposes of the issuance of the additional shares of the Company
pursuant to this Addendum No. 1, it shall be assumed that the net fair market
value of the additional contributions of Avantor International and RGI Real
Estate described in Sections 1.3 and 1.4 above are $5,365,465 and $40,657,652,
respectively.
3. OPTION TO REDEEM SHARES. Section 5 of the Agreement is amended in the
following respects:
(a) From and after the date on which the additional shares are issued to
Avantor International and RGI Real Estate pursuant to this Addendum No. 1, and
until the consummation of the Merger referred to in Section 1.4 above, the
redemption price for Avantor International's shares in the Company shall be
$21,765,465.
(b) From and after the date on which the Merger is consummated, Section 5
of the Agreement shall be revised in its entirety to read as follows:
During the one and a half year period from and after June 30, 1997 to
and including December 31, 1998, Avantor International shall have the
option to redeem its 33,044 shares of the common stock of the Company for
34,008,539 shares of the common stock of Banyan owned by the Company.
Avantor International shall exercise this option by giving the Company and
RGI Real Estate notice to that effect in writing, addressed to the
President and Chairman of the Board of each company. The parties agree that
the value of this option is USD $1,000. If Avantor International exercises
this option, and so long as Avantor International
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retains ownership of such shares of Banyan, the Company shall make its best
efforts to ensure that Avantor International has the right to elect one of
the members of the Board of Directors of Banyan.
4. GOVERNING LAW.
This Addendum No. 1 shall be governed by Norwegian law, provided, however,
that the Company has been formed under Washington law and the parties shall
abide by Washington law with respect to all matters relating to the
establishment, ownership, management and operation of the Company, including the
rights and obligations of the shareholders, officers and directors of the
Company.
IN WITNESS WHEREOF, RGI Real Estate, Avantor International and the Company
have executed this Addendum No. 1 as of the day and year first above written.
RGI REAL ESTATE, INC.
By:
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Its:
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AVANTOR INTERNATIONAL AS
By:
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Its:
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RGI HOLDINGS, INC.
By:
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Its:
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EXHIBIT A
ARTICLES OF AMENDMENT
Pursuant to RCW 23B.10.060 of the Washington Business Corporation Act, the
following Articles of Amendment to Articles of Incorporation are herewith
submitted for filing.
ARTICLE 1. The name of record of the corporation is RGI Holdings, Inc.
ARTICLE 2. The text of the amendment as adopted is as follows:
Article III is amended in its entirety as follows:
SHARES
This corporation is authorized to issue 200,000 shares of common
stock.
ARTICLE 3. The amendment was duly adopted by shareholder action in
accordance with the provisions of RCW 23B.10.030 and RCW 23B.10.040 on
___________________, 1996.
Dated: _______________, 1996.
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Xxxxxxx X. Xxxxxx, President
EXHIBIT B
LIST OF PROMISSORY NOTES CONVERTED TO EQUITY
Date Issuer Amount
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