EXHIBIT 2
EXECUTION COPY
SECOND AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER
This SECOND AMENDMENT TO AGREEMENT AND PLAN OF MERGER dated as of October
16, 1998 (hereinafter referred to as this "Agreement") is made and entered into
by and between Property Capital Trust, a Massachusetts business trust (the
"Trust"), and Maryland Property Capital Trust, Inc., a Maryland corporation (the
"Corporation").
RECITALS
A. The parties hereto entered into an Agreement and Plan of Merger on June
18, 1998 (the "Original Agreement").
B. The Original Agreement was amended by the parties hereto on August 7,
1998 (the "First Amendment").
C. The parties hereto desire to amend the Original Agreement and the First
Amendment as provided herein.
NOW, THEREFORE, in consideration of the premises and the mutual promises
herein made, and in consideration of the representations, warranties, and
covenants herein contained, the Trust and the Corporation hereby agree as
follows:
1. The parties acknowledge that the Investment Agreement (the "Investment
Agreement"), dated as of June 18, 1998 and amended August 7, 1998, by and among
Framingham York Associates Limited Partnership, a Massachusetts limited
partnership ("FYA"), the Trust and the Company is being amended by the parties
thereto on the date hereof. All references to the Investment Agreement contained
in the Original Agreement, the First Amendment or this Agreement shall be deemed
to include the amendment to the Investment Agreement executed on the date hereof
as well as any subsequent amendment to such agreement. The reference in
paragraph I of the recitals in the Original Agreement to "331,672 shares of
common stock of the Corporation" is hereby changed to "319,489 shares of common
stock of the Corporation" and the reference to "Additional Shares" in said
paragraph I is hereby deleted.
2. Section 4.1(a) is hereby amended to read in its entirety as follows:
"(a) At the Effective Time, each share of beneficial interest, no par value
per share, of the Trust (the "Shares") outstanding immediately prior to the
Effective Time shall, by virtue of the Merger and without any action on the
part of the Trust, the Corporation or the holders of any of the securities
of either entity, be converted into the right to receive:
(i) a cash payment equal to the quotient obtained by dividing the algebraic
sum of:
(w) all cash and cash equivalents held by the Trust on the
Effective Date, including rent and interest received in respect of
the land underlying the Cincinnati Marriott and the subordinate
leasehold mortgages thereon (the "Cincinnati Property"), PLUS
(x) the proceeds from the sale of the Cincinnati Property, if such
property is sold by the Effective Date but the proceeds of such
sale have not been distributed, net of all expenses reasonably
related thereto except overhead and similar expenses, MINUS
(y) the aggregate amount that the Trust is obligated to repay to
The Xxxx Companies Inc. pursuant to Section 1.2(b)(iii) of the
Investment Agreement; MINUS
(z) the aggregate amount payable pursuant to the Rights Agreement
dated September 28, 1990 between the Trust and State Street Bank
and Trust Company (the "Rights Agreement") upon termination
thereof, including amounts due in connection with the redemption
of all outstanding preemptive or similar rights to subscribe for
shares of capital stock of the Trust or any successor of the
Trust, including the Company,
by the number of shares of the Trust outstanding on the Effective Date
(together, the "Cash Consideration");
(ii) one-sixtieth of a share of the common stock, par value $.01 per share,
of the Corporation (the "Corporation Common Stock"); and
(iii) one Contingent Payment Right (as defined below) (the Cash
Consideration, the Corporation Common Stock and the Contingent
Payment Right are collectively referred to as the "Merger
Consideration").
3. Section 4.2(e) of the Original Agreement is hereby deleted and replaced
with the following:
"No fractional shares of Corporation Common Stock shall be issued pursuant
hereto. Each holder who would receive a fractional share of Corporation Common
Stock less than 0.5 of a share of Corporation Common Stock shall receive no
Corporation Common Stock in respect of such fraction and each holder who would
receive a fractional share of Corporation Common Stock equal or greater to 0.5
shall receive one (1) share of Corporation Common Stock in respect of such
fraction."
4. The parties agree that no cash shall be paid in lieu of fractional
shares of Corporation Common Stock and any references contained in the Agreement
to such cash shall hereby have no further force or effect. References in
Sections 4.1(c), 4.2(a), 4.2(b) and 4.2(d) of the Original Agreement to "cash in
lieu of fractional shares" is hereby deleted. The reference in Section 4.1(c) to
Section 4.2(e) is hereby deleted
5. Section 5.3 of the Original Agreement is hereby deleted and replaced
with the following:
"Section 5.3 Merger Agreement. The Contribution and Merger Agreement by and
between Property Capital Trust Limited Partnership, a Massachusetts limited
partnership ("PCT LP"), and FYA pursuant to which PCT LP shall merge into
FYA shall have been executed."
6. Section 6.1 of the Original Agreement is hereby deleted and replaced
with the following:
"Section 6.1 No Modification. The Surviving Corporation's Charter, the
Surviving Corporation's By-laws and the operating partnership agreement
(the "Partnership Agreement") of FYA to be in effect immediately after the
merger of PCT LP into FYA pursuant to Article 2 of the Contribution and
Merger Agreement by and between PCT LP and FYA shall each contain
provisions with respect to indemnification incorporating the terms and
conditions set forth in Section 6.2 hereof, which provisions shall not be
amended, repealed or otherwise modified for a period of six (6) years from
the Effective Time in any manner that would adversely affect the rights
thereunder of individuals who at or before the Effective Time were
trustees, officers, employees, shareholders or agents of the Trust, unless
such modification is required by law."
7. Section 6.2 of the Original Agreement is hereby amended to (i) replace
all references to "PCT LP" with references to "FYA as the surviving partnership
after the merger of PCT LP into FYA" and (ii) add to all references to "the
Surviving Corporation" a reference to "and/or FYA, as applicable."
8. The parties hereby ratify and confirm that they continue to be bound by
the terms and provisions of the Original Agreement and the First Amendment
which, except as expressly modified hereby, shall continue in full force and
effect.
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9. This Agreement may be executed in counterparts, each of which shall be
deemed an original of all which, when taken together, shall be deemed one and
the same instrument.
10. Any terms used herein and not defined shall have the meanings ascribed
to such terms in the Original Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
PROPERTY CAPITAL TRUST
By:______________________________
Xxxxxx X. Xxxxxx, President and Chief
Executive Officer
MARYLAND PROPERTY CAPITAL TRUST,
INC.
By:______________________________
Xxxxxx X. Xxxx,
Secretary
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