FIRST AMENDMENT TO MERGER AGREEMENT
THIS FIRST AMENDMENT TO MERGER AGREEMENT (this “Amendment”) is
made as of the 22nd day of January, 2009, among XXXX Danbury LLC, a Delaware limited liability
company (referred to herein as “Seller” or “Danbury LLC”), XXXX Property Acquisition LLC, a
Delaware limited liability company (the “Company”), Xxxxx & Xxxxx Company, a Delaware
corporation (“Parent”), Matrix Connecticut, LLC, a Delaware limited liability company (“Buyer”),
and Matrix Danbury, LLC, a Delaware limited liability company and a wholly owned subsidiary of
Buyer (“Merger Sub”).
WHEREAS, the parties entered into that certain Merger Agreement dated January 22, 2009
(the “Agreement”).
WHEREAS, the parties desire to amend the Agreement on the terms and conditions set forth
herein.
NOW THEREFORE, in consideration of the mutual covenants set forth herein and other good
and valuable consideration, the receipt, sufficiency and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
1. Defined Terms. Except as provided to the contrary herein, all capitalized terms
used
in this Amendment shall have the same meaning assigned thereto in the Agreement.
2. Purchase Price. The Purchase Price of $76,000,000 shall be reduced by
$2,500,000
to $73,500,000.
3. Deposits. Concurrently with the execution of this Amendment, Buyer shall cause
$3,125,000 (the “Released Deposit”) of the $6,250,000 aggregate Deposit held by the Escrow
Holder to be transferred to Parent by wire transfer of immediately available funds pursuant
to the wire
transfer instructions attached hereto as Schedule 1. Parent shall hold the Released
Deposit subject to
the terms and provisions of the Agreement as hereby amended, provided, however, that any
interest
accruing on the Released Deposit from and after the date of this Amendment shall accrue for
the
benefit of Buyer.
4. Conditions.
(a) The following clause is hereby inserted at the beginning of Section 10.1.1 of
the Agreement:
“Subject to Parent’s right to extend the Closing and cure as set forth below in this
Section 10.1,”
(b) The fourth sentence of Section 10.1.2 is hereby deleted and the following is
inserted in its place:
“If Buyer disapproves of an estoppel certificate from a Required Tenant because of a
material adverse matter disclosed therein that is inconsistent with such Required Tenant’s
Lease, and Parent is unable to obtain a reasonably acceptable estoppel certificate from such
Required Tenant prior to the Closing, subject to Parent’s right to extend the Closing and
cure as set forth below in this Section 10.1, this Agreement shall, at Buyer’s option,
terminate, Buyer shall be entitled to a refund of the Deposit, and neither party shall have
any further obligation to the other except Buyer’s indemnification obligations under
Paragraph 5.”
(c) The last paragraph of Section 10 is hereby deleted and the following is
inserted in its place:
“If Parent shall fail to satisfy any of the conditions precedent set forth in this Section
10.1, then Buyer shall give Parent written notice of such failure and Parent shall have the
right to extend the date of the Closing for up to an additional forty-five (45) days in
order to satisfy any such conditions precedent, and the parties shall thereupon be
obligated to close the transaction within five (5) days after Parent so satisfies such
condition. If Parent fails to cure such condition within such forty-five (45) day period
and such condition is not waived by Buyer, this Agreement shall be canceled and the Deposit
shall be returned to Buyer and neither party shall have any further liability hereunder.”
5. Ratification. The parties hereto hereby ratify and reaffirm all of the terms and
conditions of the Agreement, as amended hereby, and acknowledge that the Agreement, as modified by
the Amendment, shall continue in full force and effect.
6. Facsimile. The parties contemplate that they may be executing counterparts of the
Amendment transmitted by facsimile and agree and intend that a signature by facsimile machine shall
bind the party so signing with the same effect as though the signature were an original signature.
7. Counterparts. This Amendment may be executed in counterparts, and all such
executed counterparts shall constitute the same agreement. It shall be necessary to account for
only one such counterpart in proving this Amendment.
[signature page follows]
IN
WITNESS WHEREOF, each of the parties hereto has signed this Amendment as of the date first
written above.
SELLER: | PARENT: | |||||||||
XXXX DANBURY LLC, a Delaware limited | XXXXX & XXXXX COMPANY, a Delaware | |||||||||
liability company | corporation | |||||||||
By: |
/s/ Xxxxxxx X. Xxxxxx | By: | /s/ Xxxx Xxxxxx | |||||||
Name: | Xxxxxxx X. Xxxxxx | Name: | Xxxx Xxxxxx | |||||||
Title: | EVP & CFO | Title: | Executive Vice President | |||||||
COMPANY: | MERGER SUB: | |||||||||
XXXX PROPERTY ACQUISITION LLC, | MATRIX DANBURY, LLC, | |||||||||
a Delaware limited liability company | a Delaware limited liability company | |||||||||
By: |
/s/ Xxxxxxx X. Xxxxxx | By: | /s/ Xxxx Xxxxxx | |||||||
Name: | Xxxxxxx X. Xxxxxx | Name: | Xxxx Xxxxxx | |||||||
Title: | EVP & CFO | Title: | Member | |||||||
BUYER: | ||||||||||
MATRIX CONNECTICUT, LLC, a | ||||||||||
Delaware limited liability company | ||||||||||
By: |
/s/ Xxxx Xxxxxx | |||||||||
Name: | Xxxx Xxxxxx | |||||||||
Title: | Member |
SCHEDULE ONE
WIRE TRANSFER INSTRUCTIONS
Bank:
|
XX Xxxxxx Xxxxx Bank | |
ABA:
|
000000000 | |
Account Name:
|
Xxxxx & Xxxxx Company | |
Account Number:
|
5300031488 |