SHAREHOLDERS AGREEMENT
This Shareholders Agreement (the "Agreement") made this 9th day
of August, 1993 by and between Xxxxx Equity, Inc., a Florida corporation
("KE" or the "Company"), and TCW Special Credits, a California general
partnership ("TCW Special Credits"), for itself and, as general partner
or investment advisor, on behalf of Weyerhauser Company Master Pension
Trust, TCW Special Credits Fund III, The Common Fund for Bond Investments
and TCW Special Credits Trust (collectively, the "Shareholders").
W I T N E S S E T H :
WHEREAS, the Shareholders are holders of certain unsecured debt
of Xxxxx Properties, Inc., a Florida corporation ("KPI"), as debtor or
debtor-in-possession under Chapter 11 of title 11 of the United States
Code in the United States Bankruptcy Court for the Middle District of
Florida, Tampa Division (the "Bankruptcy Court"), case No. 91-12294-8P1
(the "KPI Bankruptcy Case");
WHEREAS, KE and KPI have filed with the Bankruptcy Court, as
joint proponents, a Third Amended and Restated Disclosure Statement (the
"Disclosure Statement") relating to the Third Amended and Restated Plan
of Reorganization of KPI (the "Plan");
WHEREAS, the Bankruptcy Court approved the Disclosure Statement
on June 8, 1993;
WHEREAS, the Shareholders currently beneficially own 552,600
shares of the common stock, $.01 par value, of KE (the "Common Stock")
and, upon consummation of the Plan and the merger of KPI with and into KE
(the "Merger"), as contemplated by the Agreement and Plan of Merger
between KPI and KE attached as Exhibit F to the Plan (the "Merger
Agreement") will receive additional shares of Common Stock;
WHEREAS, TCW Special Credits acts as general partner of or
investment advisor to each of the Shareholders and, as such, has the
authority to take certain actions on behalf of the Shareholders and has
or shares the power to vote or dispose of, or to direct the voting or
disposition of, the Shares (as defined in Section 2.2 hereof) and will
have or will share such power with respect to the Plan Shares (as defined
in Section 2.2 hereof);
WHEREAS, the Company and TCW Special Credits for itself and on
behalf of the Shareholders desire to enter into this Agreement; and
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, the parties hereto agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants as follows:
1.1 AUTHORIZATION OF AGREEMENT; NO VIOLATIONS; CONSENTS.
The execution, delivery and performance of this Agreement by the Company
has been duly authorized by its Board of Directors. This Agreement has
been duly and validly executed and delivered by the Company and
constitutes a valid and binding agreement of the Company, enforceable in
accordance with its terms, except that such enforcement may be limited by
bankruptcy, insolvency or other similar laws affecting the enforcement of
creditors' rights generally. Neither the execution, delivery and
performance of this Agreement nor the consummation of the transactions
contemplated herein will, with or without the giving of notice or the
lapse of time, or both, conflict with or result in any violation of or
default under (a) any provision of the articles of incorporation, or the
bylaws, of KE, (b) any note, bond, mortgage, indenture, lease, agreement
or other material instrument, permit, concession, grant, franchise or
license to which KE is a party or by which any of their properties or
assets may be bound, (c) any judgment, order, decree, injunction,
statute, rule, permit, license or regulation applicable to KE, any of its
respective properties, or (d) which result in the acceleration of any
material obligation or the creation of any material lien, charge or
encumbrance upon any of the assets of KE. No authorization, consent or
approval of, or declaration of, filing with or notice to any governmental
body or authority is necessary for the execution and delivery of this
Agreement by KE and neither the execution and delivery of this Agreement
nor the consummation of the transactions contemplated hereby require the
consent of any person or entity, other than consents which have been
obtained.
1.2 EXEMPTION FROM CERTAIN PROVISIONS OF ARTICLES OF
INCORPORATION. Pursuant to Article V(d) of the Company's Articles of
Incorporation, the Board of Directors of the Company has determined that
the ownership of up to the higher of (i) 4,047,350 shares of Common
Stock, as adjusted for any subsequent stock splits, stock dividends or
other recapitalizations of the Company and (ii) twenty-three percent
(23%) of the then outstanding shares of Common Stock of the Company (the
"Maximum Amount") by the Shareholders, The TCW Group, Inc., TCW Special
Credits and any of their Affiliates (as such term is defined under the
Securities Exchange Act of 1934 (the "Exchange Act") is exempt from the
Limit (as defined in the Articles of Incorporation of the Company),
ownership, redemption and transfer restrictions as set forth in the
Articles of Incorporation of the Company while owned by the Shareholders,
The TCW Group, Inc., TCW Special Credits or any of their Affiliates
restrictions as set forth in the Articles of Incorporation of the Company
while owned by the Shareholders, The TCW Group, Inc., TCW Special
Credits or any of their Affiliates and has determined that, based upon
the representations and warranties of TCW Special Credits, for itself and
on behalf of the Shareholders as set forth herein, such exemption shall
not jeopardize the qualification of the Company as a real estate
investment trust under the Internal Revenue Code of 1986, as amended.
TCW Special Credits, for itself and on behalf of the Shareholders
understands, acknowledges and agrees that such exemption applies only to
the Shareholders, The TCW Group, Inc., TCW Special Credits or any of
their Affiliates and is limited to the shares held by the Shareholders up
to the Maximum Amount. The Company hereby covenants and agrees that for
a period of eight (8) years following the effective date of the Merger,
the Company shall not revoke, rescind, alter or otherwise take any action
to limit or eliminate the exemption from the Limit granted in this
Agreement without the prior written consent of TCW Special Credits.
1.3 SHAREHOLDER RIGHTS PLAN AMENDMENT. The Common Stock
Rights Agreement dated as of September 30, 1990 between the Company and
First Union National Bank, as successor Rights Agent (the "Rights
Agreement"), as of the effective date of the Merger, will be amended to
provide that the beneficial ownership by the Shareholders, The TCW Group,
Inc., TCW Special Credits and their Affiliates of shares of Common Stock
of the Company up to the Maximum Amount shall not cause the distribution
of the Rights as defined in the Rights Agreement. A true and correct
copy of the Rights Agreement, to be amended as contemplated hereby, is
attached hereto as Exhibit A. The Company hereby covenants and agrees
that for a period of eight (8) years following the effective date of the
Merger, the Company shall not amend, alter or otherwise modify the Rights
Agreement or take any other action to limit or eliminate the right of the
Shareholders, The TCW Group, Inc. and any of their Affiliates to acquire
and maintain beneficial ownership of shares of Common Stock of the
Company of, in the aggregate, up to the Maximum Amount without causing a
distribution of the Rights without the prior written consent of TCW
Special Credits.
2. REPRESENTATIONS AND WARRANTIES OF TCW SPECIAL CREDITS.
TCW Special Credits represents and warrants that it has the power and
authority under the terms and provisions of a partnership or other
written agreement with each of the Shareholders to enter into this
Agreement on behalf of the Shareholders and to make the following
representations and warranties on their behalf and further represents and
warrants that:
2.1 AUTHORIZATION OF AGREEMENT; NO VIOLATION; CONSENTS.
The execution, delivery and performance of this has been duly and validly
executed and delivered by TCW Special Credits for itself and on behalf of
the Shareholders and constitutes a valid and binding agreement of each of
TCW Special Credits and the Shareholders, enforceable in accordance with
its terms, except that such enforcement may be limited by bankruptcy,
insolvency or other similar laws affecting the enforcement of creditors'
rights generally. Neither the execution, delivery and performance of
this Agreement nor the consummation of the transactions contemplated
herein will, with or without the giving of notice or the lapse of time,
or both, conflict with or result in any violation of or default under (a)
any provision of the articles of incorporation, partnership agreement,
bylaws or other governing document, of the Shareholders, (b) any note,
bond, mortgage, indenture, lease, agreement or other material instrument,
permit, concession, grant, franchise or license to which the Shareholders
are a party or by which any of their properties or assets may be bound,
(c) any judgment, order, decree, injunction, statute, rule, permit,
license or regulation applicable to TCW Special Credits or the
Shareholders or any of their respective properties, or (d) which result
in the acceleration of any material obligation of the creation of any
material lien, charge or encumbrance upon any of the assets of TCW
Special Credits or the Shareholders. No authorization, consent or
approval of, or declaration of, filing with or notice to any governmental
body or authority is necessary for the execution and delivery of this
Agreement by TCW Special Credits for itself and on behalf of the
Shareholders and neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby require the
consent of any person or entity, other than consents which have been
obtained.
2.2 OWNERSHIP OF COMMON STOCK. The Shareholders, as of
the date hereof, are the beneficial holders of 552,600 shares of Common
Stock (the "Shares") in the amounts set forth in Schedule I hereto, free
and clear of all liens, claims, charges and encumbrances. Other than the
Shares, and any shares of Common Stock to be received by the Shareholders
pursuant to the Plan (the "Plan Shares"), neither TCW Special Credits nor
the Shareholders have any right, directly or indirectly, to purchase or
have any interest in, any other shares of Common Stock. Except as set
forth in the Plan or Disclosure Statement, there are no agreements
restricting the transfer, assignment, pledge or encumbrance of or
affecting the rights of TCW Special Credits or any Shareholder with
respect to the Shares or Plan Shares. The Shares and Plan Shares are the
only shares of Common Stock beneficially owned, within the meaning of
13(d) of the Exchange Act by TCW Special Credits, the
Shareholders or any of their respective Affiliates, as defined under the
Exchange Act.
2.3 OWNERSHIP OF KPI UNSECURED DEBT. The Shareholders are
the beneficial holders of an aggregate principal amount of $65,553,000 of
unsecured debt of KPI, in the amounts set forth in Schedule I hereto,
free and clear of all liens, claims, charges and encumbrances (the "KPI
Debt"). Other than the KPI Debt, neither TCW Special Credits nor the
Shareholders have any right, directly or indirectly, to purchase or have
any interest in any other indebtedness of KPI. There are no agreements
relating to the transfer, assignment or encumbrance of or affecting the
rights of TCW Special Credits or any Shareholder with respect to the KPI
Debt.
3. VOTING AGREEMENT. TCW Special Credits has the power and
authority to vote or direct the voting of all Shares held by the
Shareholders and all KPI Debt. TCW Special Credits agrees to vote or
direct the voting of all Shares held by Shareholders in favor of the
Merger and Merger Agreement as provided in the Company's proxy statement,
to be considered at the Company's 1993 Annual Meeting. TCW Special
Credits agrees to vote or direct the Shareholders, as holders of KPI
Debt, to vote in favor of the Plan as provided in the Disclosure
Statement.
4. CERTIFICATE. TCW Special Credits, for itself and on
behalf of the Shareholders, agrees to execute and deliver to KE, on or
before the date of the closing of the Merger, a certificate, dated as of
the closing, pursuant to which a duly authorized representative or
officer of each of the Shareholders represents, warrants and certifies
that neither TCW Special Credits nor the Shareholders have any present
plan or intention to sell, exchange, or otherwise dispose of any of the
Plan Shares.
5. NOTICES.
5.1 All notices, requests, demands and other
communications which are required to be or may be given under this
Agreement shall be in writing and shall be deemed to have been duly given
when delivered in person or upon receipt when transmitted by telecopy or
telex or after dispatch by certified or registered first class mail,
postage prepaid, return receipt requested, or Federal Express, to the
party to whom the same is so given or made:
If to KE, to: Xxxxx X. Xxxxx, President
Xxxxx Equity, Inc.
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
With copies to:Xxxxxxx X. XxXxxxxx, Esq.
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
and
Xxxxxx X. XxXxxx, Xx., Esq.
Xxxxxx & XxXxxx
00 Xxxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
If to the Shareholders, to:
Xxxxxx X. Xxxxx, Xx.
TCW Special Credits
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
With copies to:
Xxxxx X. Xxxxxx, Esq.
Power, Xxxxxxxxx, Xxxxxx & Xxxxxx
Sixteenth Floor
191 Peachtree Street, N.E.
Xxxxxxx, Xxxxxxx 00000
5.2 ENTIRE AGREEMENT. This Agreement constitutes the
entire agreement between the parties hereto and supersedes all prior
agreements, representations, warranties, statements, promises and
understandings, whether written or oral, with respect to the subject
matter hereof, and cannot be changed or terminated orally. No party
hereto shall be bound by or charged with any written or oral agreements,
representations, warranties, statements, promises, or understandings not
specifically set forth in this Agreement.
5.3 HEADINGS; CERTAIN TERMS. The section and other
headings contained in this Agreement are for reference purposes only and
shall not be deemed to be part of this Agreement or to affect the meaning
or interpretation of this Agreement.
5.4 GOVERNING LAW. This Agreement shall be construed as
to both validity and performance and enforced in accordance with and
governed by the laws of the State of Florida.
5.5 SEVERABILITY. If any term or provision of this
Agreement shall to any extent be invalid or unenforceable, the remainder
of this Agreement shall not be affected thereby, and each term and
provision of this Agreement shall be valid and enforceable to the fullest
extent permitted by law. Upon the determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties
shall negotiate in good faith to modify this Agreement so as to affect
their original intent as closely as possible in an acceptable manner to
the end that transactions contemplated hereby are fulfilled to the extent
possible.
5.6 PUBLIC ANNOUNCEMENTS. KE and TCW Special Credits
shall cooperate in connection with all actions to publicize, advertise,
announce, or disclose to any governmental authority or other third person
the execution or terms of this Agreement or the transactions contemplated
hereby. Except as required by the Bankruptcy Code or the federal
securities laws, neither party will make any public disclosure, release
or announcement without the prior written consent of the other party.
5.7 AMENDMENTS. This Agreement may not be modified or
changed except by an instrument or instruments in writing signed by each
of KE and TCW Special Credits.
5.8 SECTION REFERENCES. All references contained in this
Agreement to any section number are references to sections of this
Agreement unless otherwise specifically stated.
5.9 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which, when executed, shall be deemed to
be an original and all of which together shall be deemed to be one and
the same instrument.
[The remainder of this page has been intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have signed this
Agreement, or have caused this Agreement to be signed on their behalf by
an officer thereunto duly authorized, on the respective dates stated
below.
XXXXX EQUITY, INC.
By:
Title: Senior Vice President,
Chief Financial Officer
TCW SPECIAL CREDITS, a California general
partnership for itself and on behalf of the
Shareholders (as defined herein)
By: TCW ASSET MANAGEMENT COMPANY, Managing
General Partner
By:
Name:
Title:
By:
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have signed this
Agreement, or have caused this Agreement to be signed on their behalf by
an officer thereunto duly authorized, on the respective dates stated
below.
XXXXX EQUITY, INC.
By:
Title: Senior Vice President,
Chief Financial Officer
TCW SPECIAL CREDITS, a California general
partnership for itself and on behalf of the
Shareholders (as defined herein)
By: TCW ASSET MANAGEMENT COMPANY, Managing
General Partner
By:
Name:
Title:
By:
Name:
Title:
EXHIBIT A
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
This amendment, dated as of August __, 1993, amends the Common
Stock Rights Agreement dated as of September 30, 1990 (the "Rights
Agreement"), between Xxxxx Equity, Inc., a Florida corporation (the
"Company"), and First Union National Bank, as successor Rights agent (the
"Rights Agent"). Terms defined in the Rights Agreement and not otherwise
defined herein are used herein as so defined.
W I T N E S S E T H:
WHEREAS, on September 30, 1990, the Board of Directors of the
Company authorized the issuance of Rights to purchase, on the terms and
subject to the provisions of the Rights Agreement, one share of the
Company's Common Stock; and
WHEREAS, on September 30, 1990, the Board of Directors of the
Company authorized and declared a dividend distribution of one Right for
every share of Common Stock of the Company outstanding on the Dividend
Record Date and authorized the issuance of one Right (subject to certain
adjustments) for each share of Common Stock of the Company issued between
the Dividend Record Date and the Distribution Date; and
WHEREAS, pursuant to Section 27 of the Rights Agreement, the
Continuing Directors now unanimously desire to further amend certain
provisions of the Rights Agreement;
NOW, THEREFORE, the Rights Agreement is hereby amended as
follows:
1. Section 1(v) is amended by replacing Section (v) in its
entirety with the following:
(v) "Exempt Person" shall mean, collectively, TCW Special
Credits, a California general partnership, The TCW Group, Inc. and
their Affiliate, only so long as TCW Special Credits, a California
general partnership, The TCW Group, Inc. and their Affiliates are,
collectively, the Beneficial Owners of shares of Common Stock
outstanding in an amount not in excess of and aggregate of the higher
of (i) 23% of the shares of Common Stock then outstanding and (ii)
4,047,350 shares of Common Stock, as adjusted for any stock splits,
stock dividends or other recapitalizations of the Company on or after
August , 1993.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 1 to the Rights Agreement to be duly executed as of the day and year
first above written.
XXXXX EQUITY, INC.
By:
Title:
Attest:
By:____________________________
Secretary
FIRST UNION NATIONAL BANK
By:
Title:
