EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER, dated as of November 7, 1996 (this
"Agreement"), among Cornerstone Properties Inc., a Nevada corporation (the
"Parent"), CStone-Pittsburgh Trust, a Maryland business trust and a wholly owned
subsidiary of the Parent ("Sub"), Xxxxx Building, Inc., a Delaware corporation
(the "Company"), and Hexalon Real Estate, Inc., a Delaware corporation, the sole
stockholder of the Company (the "Stockholder").
WHEREAS, the Board of Trustees of Sub and the respective Boards of
Directors of the Parent, the Company and the Stockholder each have determined
that it is in the best interests of their respective companies and stockholders
for Sub and the Company to merge upon the terms and subject to the conditions
set forth herein (the "Merger") and the Parent, Sub, the Company and the
Stockholder have, by duly adopted resolutions, approved and adopted this
Agreement; and
WHEREAS, to induce the Parent and Sub to enter into this Agreement,
the Stockholder has agreed to enter into a stockholders' agreement (the
"Stockholders' Agreement"), in the form set forth as Exhibit A hereto,
simultaneously with the closing of the Merger;
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements set forth herein, the parties hereto agree as follows:
ARTICLE I. DEFINITIONS
Section 1.01. DefinitionsDefinitions. As used in this Agreement, the
following terms shall have the following meanings:
"Account" means that certain account no. 8801721955 established
at SunTrust Bank in the name of Xxxxx Building, Inc.
"Basic Agreements" means this Agreement and the Stockholders'
Agreement.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, participation or other equivalents (however designated)
of such Person's capital stock and all joint venture interests (however
designated) whether now outstanding or issued after the Closing Date,
including, without limitation, all common stock and all preferred stock.
"Capitalized Lease" means, as applied to the Parent, any lease of
property (whether real, personal or mixed) the discounted present value of
the rental obligations of the Parent as lessee under which, in conformity
with GAAP, is required to be or is capitalized on the balance sheet of
that Person.
"Certificate of Merger" has the meaning specified in Section 2.02.
"Charter" means the Certificate of Incorporation of the Parent, as
amended or restated from time to time.
"Closing" has the meaning specified in Section 2.02.
"Closing Date" has the meaning specified in Section 2.02.
"Closing Statement" has the meaning specified in
Section 3.03(a)(x).
"Commission" means the United States Securities and Exchange
Commission.
"Common Stock" means the common stock of the Parent, without par
value.
"Company Note" means the Demand Promissory Note, dated as of July
31, 1989, of the Company to Stockholder in the original principal amount
of $36,000,000.
"Company Shares" has the meaning specified in Section 2.06.
"Contract Rights" means any and all rights of the Company in and
to the Contracts.
"Contracts" means all service, maintenance, supply, construction,
utility and management contracts affecting the construction, use,
ownership, maintenance and/or operation of the Property (including
contracts for the construction of tenant improvements).
"Conversion Shares" means the Common Stock or other securities
issued upon conversion of the 8% Preferred Stock, Series A.
"Currency Agreement" means any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement designed to
protect the Parent against fluctuations in currency values.
"Debt" of the Parent means, at any date (without duplication): (i)
all obligations of the Parent for borrowed money; (ii) all obligations of
the Parent evidenced by bonds, debentures, notes or other similar
instruments; (iii) all obligations of the Parent in respect of letters of
credit, bankers' acceptances or other similar instruments (or
reimbursement obligations with respect thereto); (iv) all obligations of
the Parent to pay the deferred purchase price of property or services (but
excluding trade accounts payable or accrued liabilities arising in the
ordinary course of business which are not overdue); (v) all obligations of
the Parent as lessee under Capitalized Leases; (vi) all obligations of the
Parent in respect of performance bonds or other similar instruments; (vii)
all obligations of others of the types referred to in clauses (i) through
(vi), (viii) and (ix) of this paragraph secured by a Lien on any asset of
the Parent, whether or not any such obligation is assumed by the Parent,
provided that, for purposes of determining the amount of any Debt of the
type described in this clause (vii), if recourse with respect to such Debt
is limited to such asset, the amount of such Debt shall be limited to the
Fair Market Value of such assets; (viii) all obligations of others of the
types referred to in clauses (i) through (vi) and (ix) of this paragraph
which are guaranteed by the Parent; and (ix) to the extent not otherwise
included, obligations under Currency Agreements and Interest Rate
Agreements.
"Delaware Law" means the Delaware General Corporation Law.
"Effective Time" has the meaning specified in Section 2.02.
"8% Preferred Stock" means the 8% Cumulative Convertible Preferred
Stock of the Parent, without par value, to be issued hereafter.
"8% Preferred Stock Series A" has the meaning specified in
Section 2.06.
"Environmental Laws" has the meaning specified in
Section 3.05(a)(vii).
"Executive Summary" has the meaning specified in Section 5.01(i).
"GAAP" means generally accepted accounting principles in the United
States as in effect at the time any particular determination is made.
"Hazardous Materials" has the meaning specified in
Section 3.05(a)(vii).
"Improvements" means all buildings and other improvements located on
or affixed to the Land, including, without limitation, a 21-story office
building with ground floor retail space known as the Xxxxx Building,
Pittsburgh, Pennsylvania, containing approximately 341,421 square feet of
net rentable area, and any and all utility, plumbing, electrical, heating,
air-conditioning and ventilation lines, systems and boilers.
"Incurrence" means the issuance, incurrence, creation, assumption or
in any other manner becoming liable with respect to, or the extension of
the maturity or mandatory redemption date of, or becoming responsible for
the payment of, any Debt, Preferred Stock or Lien. "Incur" and "Incurred"
shall have correlative meanings.
"Intangible Rights" means all right, title and interest of the
Company, if any, in and to intangible and mixed property used in
connection with or relating to the Real Property or Personal Property,
including without limitation all third-party representations, warranties,
guarantees, indemnities, bonds, approvals, licenses, applications,
permits, plans, drawings, specifications, surveys, maps, engineering
reports and other technical descriptions, environmental reports, trade
names and trademarks, telephone numbers and similar property, other than
the Contract Rights and the Leases.
"Interest Rate Agreements" means any interest rate protection
agreement, interest rate future, interest rate option, interest rate swap,
interest rate cap or other interest rate hedge agreement, to or under
which the Parent is a party or a beneficiary on the date hereof or becomes
a party or a beneficiary hereafter.
"Land" means that certain parcel of land in Pittsburgh, Pennsylvania
more particularly described on Exhibit R-A attached hereto, together with
all rights, easements, and interests appurtenant thereto.
"Leases" means all of the leases, occupancy agreements and licenses
of space in the Real Property, together with any amendments of any of the
foregoing or any related agreements, including brokerage agreements and
guaranties.
"Lien" means any pledge, mortgage, lien, charge, security interest
or encumbrance of any kind.
"Maryland Law" means Title 8 of Corporations and Associations
Annoted Code of Maryland.
"Material Adverse Effect" means for any entity, a material adverse
effect on the business, operations, properties or condition (financial or
otherwise) of such entity and its Subsidiaries, taken as a whole.
"1934 Act" shall mean the United States Securities Exchange Act of
1934, as amended, and, unless the context indicates otherwise, the rules
and regulations of the Commission thereunder, all as the same shall be in
effect from time to time.
"1933 Act" shall mean the United States Securities Act of 1933, as
amended, and, unless the context indicates otherwise, the rules and
regulations of the Commission thereunder, all as the same shall be in
effect from time to time.
"Person" means an individual, a partnership, a joint venture, a
corporation, an association, a trust, an individual retirement account or
any other entity or organization, including a government or any department
or agency thereof.
"Personal Property" means all right, title and interest of the
Company in and to the tangible personal property of the Company listed in
Exhibit R-B and any other tangible personal property of the Company used
in connection with the operation and/or maintenance of the Real Property,
including without limitation all furniture, fixtures, equipment,
machinery, furnishings, carpets, drapes, blinds and mini-blinds, service
and maintenance equipment, tools, signs, telephones and other
communication equipment, intercom equipment and systems.
"Property" means the Real Property, the Personal Property, the
Intangible Rights, the Leases, and the Contract Rights.
"Real Property" means the Land and the Improvements.
"Rent Roll" has the meaning specified in Section 3.03(a)(i).
"7% Preferred Stock" means the 7% Cumulative Convertible Preferred
Stock of the Parent, without par value.
"Stockholder Knowledge Individuals" has the meaning specified in
Section 3.05(b).
"Subsidiary" means, as to any entity, any company, corporation or
joint venture of which at the time of determination such entity, directly
and/or indirectly through one or more Subsidiaries, owns, or one or more
other Subsidiaries own, more than 50% of the Voting Stock or such entity
controls, or one or more other Subsidiaries control, the composition of
more than 50% of the board of directors or comparable governing body
thereof.
"Surviving Corporation" has the meaning specified in Section 2.01.
"Taxes" mean all taxes, however denominated, including any interest,
penalties or other additions to tax that may become payable in respect
thereof, imposed by any federal, territorial, state, local or foreign
government or any agency or political subdivision of any such government,
which taxes shall include, without limiting the generality of the
foregoing, all income or profits taxes (including, but not limited to,
federal income taxes and state income taxes), real property gains taxes,
payroll and employee withholding taxes, unemployment insurance taxes,
social security (or similar) taxes, sales and use taxes, ad valorem taxes,
excise taxes, franchise taxes, gross receipts taxes, business license
taxes, occupation taxes, real and personal property taxes, stamp taxes,
environmental taxes, transfer taxes, workers' compensation, Pension
Benefit Guaranty Corporation premiums and other governmental charges,
alternative or add-on minimum taxes and other obligations of the same or
of a similar nature to any of the foregoing, whether disputed or not,
which the applicable party is required to pay, withhold or collect.
"Tenant Estoppels" has the meaning specified in
Section 3.03(a)(v).
"Title Company" means Lawyers Title Insurance Company.
"Voting Stock" means, with respect to any Person, securities of any
class or classes of Capital Stock of such Person entitling the holders
thereof (whether at all times or only so long as no senior class of stock
has voting power by reason of any contingency) to vote in the election of
members of the board of directors or other governing body of such Person
but does not include Capital Stock having the right to vote in such
election solely upon the happening of a contingency unless and until such
contingency has occurred, and then only so long as such Capital Stock has
voting rights with respect thereto.
ARTICLE II. THE MERGER
Section 2.01. The MergerThe Merger. Upon the terms and subject to
the conditions set forth in Section 3.03 and Article IV, and in accordance with
Maryland Law and Delaware Law, at the Effective Time the Company shall be merged
with and into Sub. As a result of the Merger, the separate corporate existence
of the Company shall cease and Sub shall continue as the surviving corporation
of the Merger (the "Surviving Corporation").
Section 2.02. Effective Time; ClosingEffective Time; Closing. As
promptly as practicable after the satisfaction or, if permissible, waiver of the
conditions set forth in Article IV, the parties hereto shall cause the Merger to
be consummated by filing this Agreement or a certificate of merger (the
"Certificate of Merger") with the Secretaries of State of Maryland and Delaware,
in such form as is required by, and executed in accordance with the relevant
provisions of, Maryland Law and Delaware Law (the date and time of the later of
such filings being the "Effective Time"). Prior to such filings, a closing shall
be held at the offices of Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, on November 7, 1996, or such other place and date as the parties
shall agree, for the purpose of confirming the satisfaction or waiver, as the
case may be, of the conditions set forth in Section 3.03 and Article IV (such
closing being called the "Closing" and such date being called the "Closing
Date").
Section 2.03. Effect of the MergerEffect of the Merger. At the
Effective Time, the effect of the Merger shall be as provided in the applicable
provisions of Maryland Law and Delaware Law. Without limiting the generality of
the foregoing, and subject thereto, at the Effective Time all the property,
rights, privileges, powers and franchises of the Sub and the Company shall vest
in the Surviving Corporation, and all debts, liabilities, obligations,
restrictions, disabilities and duties of the Company and Sub shall become the
debts, liabilities, obligations, restrictions, disabilities and duties of the
Surviving Corporation.
Section 2.04. Certificate of Formation; BylawsCertificate of
Formation; Bylaws. (a) At the Effective Time, the Certificate of Formation of
the Surviving Corporation shall be as set forth in Exhibit B, until thereafter
amended as provided by law and such Certificate of Formation.
(b) The Bylaws of Sub, as in effect immediately prior to the
Effective Time, shall be the Bylaws of the Surviving Corporation until
thereafter amended as provided by law, the Certificate of Incorporation of the
Surviving Corporation and such Bylaws.
Section 2.05. Directors and OfficersDirectors and Officers. The
trustees of Sub immediately prior to the Effective Time shall be the initial
trustees of the Surviving Corporation, each to hold office in accordance with
the Trust Declaration and Bylaws of the Surviving Corporation, and the officers
of the Sub immediately prior to the Effective Time shall be the initial officers
of the Surviving Corporation, in each case until their respective successors are
duly elected or appointed and qualified.
Section 2.06. Conversion of Company SharesConversion of Company
Shares. All the shares of common stock of the Company (the "Company Shares")
issued and outstanding immediately prior to the Effective Time (all of which are
and, immediately prior to the Effective Time will be, owned by the Stockholder)
shall, by virtue of the Merger and without any action on the part of the holder
thereof, be converted in their entirety into and represent the right to receive,
upon surrender to the Parent of the certificates formerly representing the
Company Shares, 458,621 shares of 8% Cumulative Convertible Preferred Stock
Series A, without par value (the "8% Preferred Stock Series A"), of the Parent
having the terms set forth in the Certificate of Designations attached hereto as
Exhibit C.
Section 2.07. Conversion of Sub Common StockConversion of Sub Common
Stock. Each share of common stock, par value $1.00 per share, of Sub issued and
outstanding immediately prior to the Effective Time shall, by virtue of the
Merger and without any action on the part of the holder thereof, be converted
into and exchangeable for one share of common stock of the Surviving
Corporation.
ARTICLE III. CERTAIN MATTERS PERTAINING TO
REAL ESTATE AND THE COMPANY
Section 3.01. Delivery of Materials for ReviewDelivery of Materials
for Review. In connection with the transactions contemplated hereby, prior to
the Closing Date, the Company delivered to the Parent or otherwise made
available to the Parent for its review the documents and other materials set
forth on the Document List attached hereto as Exhibit R-C.
Section 3.02. As-Is ClauseAs-Is Clause. As a material inducement to
the Stockholder and the Company to execute this Agreement, the Parent and Sub
acknowledge, represent and warrant that, except as expressly provided in this
Agreement, (i) the Parent and Sub will have fully examined and inspected the
Property, including, without limitation, the construction, operation and leasing
of the Property, together with such other documents and materials with respect
to the Property which the Parent and Sub deem necessary or appropriate in
connection with their investigation and examination of the Property, including,
without limitation, all of the documents made available to the Parent or the Sub
at the offices of the Company's property manager, (ii) the Parent and Sub will
have accepted the foregoing and the physical condition, value, presence/absence
of Hazardous Materials, financing status, use, leasing, operation, tax status,
income and expenses of the Property, (iii) the Property will be subject to all
applicable laws and "AS IS" and "WHERE IS" and with all faults and, upon the
Closing, Sub shall assume responsibility for the physical condition of the
Property and (iv) the Parent and Sub will have decided to purchase the Property
solely on the basis of their own independent investigation. Except as expressly
set forth herein, neither the Stockholder nor the Company has made, makes, and
has authorized anyone else to make any representation as to the present or
future physical condition, value, presence/absence of hazardous materials,
financing status, leasing, operation, use, tax status, income and expenses or
any other matter or thing pertaining to the Property, and the Parent and Sub
acknowledge that no such representation or warranty has been made and that in
entering into this Agreement they do not rely on any representation or warranty
other than those expressly set forth in this Agreement. EXCEPT AS EXPRESSLY SET
FORTH IN THIS AGREEMENT, NEITHER THE STOCKHOLDER NOR THE COMPANY MAKES ANY
WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED OR ARISING BY OPERATION OF LAW,
INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF CONDITION, HABITABILITY,
MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY. The
provisions of this Section 3.02 shall survive the Closing.
Section 3.03. Closing DeliveriesClosing Deliveries. (a) The
Company's Deliveries. The Company shall deliver or cause to be delivered the
following documents to Sub at the Closing:
(i) The original, signed Leases (or copies thereof certified by the
Stockholder if originals are not available) as well as the Company's
tenant lease files, and a rent roll and delinquency report for the current
month ("Rent Roll") certified by the Stockholder as being true and
complete in all material respects, to Stockholders knowledge.
(ii) A certification duly executed by the Stockholder in the form
attached hereto as Exhibit R-D, stating that the Company is not a "foreign
person" within the meaning of Section 1445 of the Internal Revenue Code of
1986, as amended.
(iii) Originals (or certified copies thereof if originals are not
available) of the Contracts.
(iv) Originals of all books and records in the Company's possession
pertaining to the operation and management of the Property; provided,
however, that the Stockholder may keep copies of all such books and
records.
(v) Estoppel certificates from tenants of the Property occupying
eighty percent (80%) of the rentable square footage of the Property, dated
no earlier than twenty (20) days prior to the Closing Date ("Tenant
Estoppels") in the form attached hereto as Exhibit R-E (provided that if
any Lease specifies the form of estoppel certificate which the tenant
thereunder is obligated to deliver, such form may be delivered in lieu of
the form attached hereto as Exhibit R-E).
(vi) Evidence reasonably satisfactory to Sub and Title Company that
all real estate taxes, sewer and water rates and charges, special
assessments and betterments, and any utility charges the non-payment of
which could result in a lien upon the Property, either have been paid or
are included in the Closing Statement for purposes of apportionment.
(vii) Any and all keys, and lock and safe combinations respecting
the Improvements.
(viii) If the Contracts listed in Exhibit R-C include any Contract
for the construction of tenant improvements, evidence of payment by the
Company of all amounts incurred thereunder through the Closing Date.
(ix) Such other instruments as the Parent or the Sub may
reasonably request.
(b) Satisfaction of Deliveries. Except with respect to any
representations, warranties or covenants of the parties that survive the Closing
in accordance with Section 7.01, the occurrence of the Closing shall be deemed
full and complete satisfaction of the deliveries required pursuant to this
Section 3.03 or the waiver thereof by the party for whose benefit the delivery
is required to be made.
Section 3.04. Closing Costs and ProrationsClosing Costs and
Prorations. At the Closing, closing costs shall be paid and prorations made as
between the Sub and the Stockholder with respect to the Property in accordance
with this Section 3.04.
(a) Closing Costs. The Stockholder and the Parent each agree to
cooperate with each other in making all filings required to confirm that no
state or local real estate transfer tax is due in connection with the
consummation of the transactions contemplated. In the event any such tax shall
be imposed, the Stockholder and the Parent shall each pay one-half of the same
when due, plus any interest and penalties. No filing or communication with any
tax official or authority shall be made by either party without the consent of
the other party. Each party shall bear its own costs and expenses in connection
with all such filings. The Sub shall pay the title insurance premium for the
owner's title insurance policy issued at the Closing to the Sub by Title Company
and any costs for any survey obtained by the Sub.
(b) Prorations. The following prorations shall be made as of
11:59 p.m. the day prior to the Effective Time:
(i) Taxes. Real and personal property taxes and general and
special assessments shall be prorated on the basis of the fiscal
year for such taxes and assessments. If the Closing Date shall occur
before the real property tax rate for such fiscal year is fixed, the
apportionment of taxes shall be made on the basis of the taxes
assessed for the preceding fiscal year. After the real property
taxes are finally fixed for the fiscal year in which the Closing
Date occurs, the Parent and the Stockholder shall make a
recalculation of the apportionment of such taxes, and the Parent or
the Stockholder, as the case may be, shall make an appropriate
payment to the other based on such recalculation. After the Closing
Date, Sub shall have the right to control and pursue exclusively
without the participation of the Stockholder any and all tax
reduction proceedings relating to the Property; provided that if
taxes increase as a result of said proceedings, the Stockholder
shall have no liability for such increases, and provided that Sub
shall cooperate with the Stockholder in pursuing any tax reduction
proceedings for tax year 1996. With respect to 1996 taxes, the
parties shall prorate on the basis of the reduced assessment in
effect on November 4, 1996, and the Stockholder shall be entitled to
the entire 1996 refund, if any. Subject to the immediately preceding
sentence, to the extent any real estate tax refund is received on or
after the Closing Date by any party hereto, the amount of the net
proceeds of such tax refund shall be prorated to but not including
the Closing Date, if, as and when such proceeds are paid by the
applicable governmental taxing authority (it being understood that,
to the extent any tenant leasing space in the Real Property shall be
entitled to any portion of such tax abatement, such portion shall be
turned over to Sub to remit to such tenant and shall be deducted
from any tax refund proceeds in connection with calculating the net
proceeds thereof).
(ii) Rents. Prepaid rent, nondelinquent base rents, additional
rents in the nature of operating expense recoveries, electricity
recoveries, and tax reimbursements under the Leases shall be
prorated. Rents collected after the Closing Date from tenants whose
rental was delinquent on the Closing Date shall be deemed to apply
first to current rental due at the time of payment and second to the
rentals which were delinquent on the Closing Date. Unpaid and
delinquent rents, to which the Stockholder is entitled, shall be
turned over to the Stockholder if collected by the Sub after the
Closing Date within 30 days of collection, less any reasonable
third-party out-of-pocket collection costs actually incurred by the
Sub. The Sub agrees to use good faith efforts to attempt to collect
such rents. On the Closing Date, the Sub shall be entitled to a
credit for any tenant security deposits and interest thereon, if
any, and any other amounts due tenants pursuant to such security
deposits unless such security deposits have been previously applied
by the Company. In the event that any additional rent or the
calculation thereof is subject to adjustment pursuant to the terms
and provisions of any Lease (e.g., year-end adjustments to
escalation charges, tenant audits, and the like), then after the
amount of such additional rent is finally determined by the Parent
(which determination shall be reasonably made), the parties shall
make the proper adjustments so that the proration will be accurate
based upon the actual amount of such additional rent collected for
the period in question, and payment shall be made promptly to the
Sub or the Stockholder, whichever may be entitled to such payment,
by the other party for the purpose of making such adjustment.
(iii) Utilities. Charges and assessments for sewer and water
and other utilities, including charges for consumption of
electricity, steam and gas shall be apportioned by the Sub and the
Stockholder.
(iv) Adjustment of Contracts. Except as provided in (v) below,
payments required or received under all Contracts shall be
apportioned by the Sub and the Stockholder.
(v) Leasing Costs. The Parent shall be entitled to payment at
Closing for all costs and expenses required to be paid, whether
before or after the Closing, in respect of Leases entered into prior
to the Closing for (A) tenant improvement construction contracts
(except with respect to the payment for certain tenant improvement
work required to be made in 1999 under the Xxxxx, Xxxxxxx & Xxxxxxx
lease for which the Sub shall be solely responsible), (B) tenant
improvement allowances to tenants and (C) brokerage commissions,
except commissions which may become due in connection with the
extension or renewal of any Lease on or after the Closing Date or in
connection with the exercise after the Closing Date by any tenant of
any expansion or extension option contained in any of the Leases.
(vi) Other. Any other items of income and expense shall
be prorated between the Sub and the Stockholder.
(c) Payment of Apportionment. Any net credit payable by the Sub to
the Stockholder (as a dividend in its capacity as former shareholder of
the Company pursuant to resolution of the Board of Directors of the
Company, dated November 4, 1996) or by the Stockholder to the Sub as a
result of the foregoing prorations shall be paid within five (5) business
days after the Closing Date by wire transfer of immediately available
funds.
(d) Post-Closing Cooperation. After the Closing, the Parent and the
Stockholder shall cooperate with each other, and shall cause their
respective property managers for the Property to cooperate with each
other, including, without limitation, making available books and records
for the Property, in order to respond to any tenant inquiry concerning,
challenge to or audit of, any operating expense or similar additional rent
or rent escalation item. To the extent that any adjustment or proration
required hereunder was based on estimates at the time of the Closing, the
parties shall readjust and re-prorate based upon final numbers, when
available, and make payment as appropriate based upon such readjustment
and re-proration.
(e) A closing statement (the "Closing Statement") reflecting the
adjustments made at the Closing and described in Section 3.04 hereof shall
be executed and delivered by Stockholder and Parent within five (5)
Business Days after the Effective Time.
(f) Survival. The provisions of this Section 3.04 shall survive the
Closing, provided, however, that the Stockholder and the Parent agree to
use reasonable efforts to finalize all prorations on or before the first
anniversary of the Closing Date.
Section 3.05. Stockholder's Representations and
WarrantiesStockholder's Representations and Warranties. (a) The Stockholder
hereby makes the following representations and warranties to the Parent and
Sub as of the Closing Date:
(i) Delivery of Written Materials. Exhibit R-C includes all of the
Leases and Contracts relating to the Property, and the Company has
delivered to Sub true, accurate and complete copies of all of the Leases
and the Contracts and all other documents and reports included in Exhibit
R-C. Sub hereby acknowledges receipt of each of the Leases and Contracts
listed in Exhibit R-C, but said acknowledgement shall in no way diminish
the foregoing representation and warranty of the Stockholder.
(ii) Other Agreements. On the Closing Date, (A) there will be no
Contracts other than the Contracts listed in Exhibit R-C, and (B) there
will be no Leases other than the Leases listed in Exhibit R-C.
(iii) No Conflict. The execution, delivery of and consummation of
the transactions contemplated by this Agreement are not prohibited by, and
will not conflict with, constitute grounds for termination of, or result
in the breach of organizational documents of the Company or the
Stockholder, any of the Leases or the Contracts or any other agreement or
instrument to which the Company is now a party or otherwise subject,
except for such conflicts or breaches of such Contracts or other
agreements or instruments as would not constitute a Material Adverse
Effect either individually or in the aggregate.
(iv) Leases. (A) No rent has been paid by any tenant or occupant of
the Property more than thirty (30) days in advance (except as adjusted in
the Closing Statement), (B) to the Stockholder's knowledge, neither any
tenant nor the Company is in default in the performance of any material
covenant, agreement or condition contained in any of the Leases, (C)
neither the Stockholder nor the Company has received written notice from
any tenant regarding pending or threatened material offsets against rent
or for any material monetary or material claim against the Company and no
future rent concessions have been created which are not disclosed in the
Leases, the Rent Roll, Tenant Estoppels or the Exhibits hereto, (D) to the
Stockholder's knowledge, any and all construction and improvements that
were required to be performed by the Company under any Lease have been
fully completed and accepted by each tenant, except under the Leases and
the Contracts designated with an asterisk in Exhibit R-C, and all leasing
commissions payable on account of any of the Leases have been fully paid,
except those which may become due in connection with the extension or
renewal of any Lease or in connection with the exercise by any tenant of
any expansion or extension option contained in any of the Leases, (E) to
the Stockholder's knowledge, the Leases are in full force and effect and
(F) attached hereto as Exhibit R-H is a true and complete list of all
security deposits posted under the Leases together with interest, if any,
accrued thereon to the Closing Date. The representations and warranties
made in this Subsection 3.05(a)(iv) shall be deemed withdrawn as to each
Lease for which Sub receives a Tenant Estoppel on or before the Closing.
(v) Notices. To the Stockholder's knowledge, neither the
Stockholder nor the Company has received written notice or citation:
(1) from any federal, state, county or municipal authority
alleging any fire, health, safety, building pollution,
environmental, zoning or other violation of any law, regulation,
permit, order or directive in respect of the Property or any part
thereof, which has not been entirely corrected;
(2) from any insurance company or bonding company of any
defects or inadequacies in the Property or any part thereof, which
would materially adversely affect the insurability of the same or of
any termination or threatened termination of any policy of insurance
or bond; or
(3) from any governmental authority with respect to a proposed
eminent domain taking of all or any portion of the Property.
(vi) Violation of Law. To the Stockholder's knowledge, all
governmental approvals required for the current use of the Property have
been issued and are currently in effect without violation, to
Stockholder's knowledge, the Property is not under investigation for
failure to comply with any statutes, laws, ordinances, rules, regulations,
orders or directives of any and all governmental agencies pertaining to
the use or occupancy of the Property, and, to the Stockholder's knowledge,
the Property is in compliance with, and not in violation in any material
respect of, any applicable statutes, laws, ordinances, rules, regulations,
orders or directives; provided, however, that the Stockholder makes no
representation herein with respect to compliance with the Americans with
Disabilities Act or any rule, regulation or interpretation promulgated
thereunder.
(vii) Hazardous Materials. To the Stockholder's knowledge, except as
disclosed in (A) the Environmental Assessment Report dated July 1989,
prepared by Xxxxxxxxx Engineers for the Xxxxx Building, and (B) the
Environmental Assessment Report dated November 5, 1996, prepared by IVI
Environmental, Inc. for the Xxxxx Building, there are no Hazardous
Materials at the Property except for ordinary cleaning, landscaping,
maintenance, and office supplies consistent with the use of the Property
as an office building which are used and stored in compliance with
applicable Environmental Laws, and to the Stockholder's knowledge, neither
the Company nor any tenant of the Real Property during the Company's
ownership thereof has previously used, manufactured, generated, treated,
stored, disposed of, or released any Hazardous Materials on or under the
Property or transported any Hazardous Materials over the Property in
violation of any applicable Environmental Laws. As used herein, (a) the
term "Environmental Laws" shall include, but not be limited to, the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, 42 U.S.C. xx.xx. 9601 et seq., the Resource Conservation
and Recovery Act, 42 U.S.C. xx.xx. 6901 et seq., the Hazardous Materials
Transportation Act, 49 U.S.C. xx.xx. 1801 et seq., the Federal Water
Pollution Control Act, 33 U.S.C. xx.xx. 1251 et seq., the Clean Air Act,
42 U.S.C. xx.xx. 7401 et seq., the Toxic Substances Control Act, 15 U.S.C.
ss. 2601, the Refuse Act, 33 U.S.C. xx.xx. 407 et seq., and any other
applicable similar state, federal, county, regional, municipal or local
law, statute, ordinance, rule or regulation governing the control of
substances dangerous to public health or safety, as same may be amended
from time to time; and (b) the term "Hazardous Materials" shall include
but not be limited to asbestos-containing materials, polychlorinated
biphenyls, flammable materials, explosives, radioactive materials,
petroleum products and those materials or substances now or heretofore
defined as "hazardous substances," "hazardous materials," "hazardous
waste," "toxic substances," or other similar designations under the
Environmental Laws.
(viii) Legal Proceedings. Except as set forth in Exhibit R-G
attached hereto, there are no actions, suits or proceedings, pending, or,
to the Stockholder's knowledge, threatened before any court, commission,
agency or other administrative authority against, or affecting the Company
or the Property. The Company has not suffered or confessed any judgment in
or before any such court, commission, agency or other administrative
authority against which remains unsatisfied.
(ix) No Employees. The Company has never employed any person as
an employee.
(x) Leasing Commissions. Except as set forth on Exhibit R-F hereto,
no person is entitled to any leasing commission in connection with the
extension or renewal of any Lease or in connection with the exercise by
any tenant of any expansion or extension option contained in any of the
Leases. Neither the Company nor the Property is subject to any "protection
list" or similar obligation with respect to the future leasing of the
Property except as set forth on Exhibit R-F hereto.
(xi) Assets and Liabilities. Other than the Property and the
Account, the Company has no assets. Other than the Contracts, the Company
Note, the Leases and the matters disclosed in Exhibits R-E, R-F, R-G and
R-H, the Company has no liabilities, whether current, contingent or other.
(xii) The Account. (A) There is $40,000,000 on deposit in the
Account, (B) the Account is not subject to any pledge, claim, offset or
defense and (C) the Company has good and clear title to the Account.
(xiii) No Liens; Acknowledgement. The Company owns all Personal
Property free and clear of all Liens except as set forth in Exhibit R-H.
The Company makes no representation or warranty as to the ownership of
either the bust of Xxxxx Xxxx Xxxxx or the bronze lion sculptures located
in the lobby of the Improvements.
(b) The Stockholder's Knowledge. Any and all uses of the phrases "to
Stockholder's knowledge" or other references to the Stockholder's knowledge in
this Agreement shall mean the actual, present, conscious knowledge of Xxxxx X.
Xxxxx, III and Xxxx Xxxxxx (the "Stockholder Knowledge Individuals") as to a
fact at the time given. The Parent and Sub acknowledge that, for purposes of the
representations and warranties set forth in this Agreement, such individuals
have not performed and are not obligated to perform any investigation or review
of any files in the possession of the Stockholder or the Company with respect to
the subject matter addressed in the representations and warranties of the
Stockholder set forth in this Agreement. The actual, present, conscious
knowledge of any other individual or entity shall not be imputed to the
Stockholder Knowledge Individuals.
Section 3.06. Brokerage CommissionBrokerage Commission. The
Stockholder and the Parent each warrant to the other party that its sole contact
with the other party or the Property regarding this transaction has been
directly with the other party or with Lazard Freres & Co., LLC, Xxxxxxx &
Xxxxxxxxx, Inc. or Xxxxxxxxx-Middle Atlantic. The Parent shall be solely
responsible for any investment fees or commissions, payable to Lazard Freres in
connection with the transactions contemplated by this Agreement. The Stockholder
shall be solely responsible for any investment fees or commission payable to
Xxxxxxx & Xxxxxxxxx, Inc. and Xxxxxxxxx-Middle Atlantic in connection with the
transactions contemplated by this Agreement. The Parent and the Stockholder
further warrant to each other that no other broker or finder can properly claim
a right to a commission or finder's fee based upon contacts between the claimant
and the warranting party with respect to the other party or the Property. The
Parent and the Stockholder shall indemnify, defend and hold the other party
harmless from and against any loss, cost or expense, including, but not limited
to, attorneys' fees and court costs, resulting from any claim for a fee or
commission by any broker or finder in connection with the Property and this
Agreement resulting from the indemnifying party's actions. The foregoing
indemnities shall survive the Closing.
Section 3.07. Company DividendCompany Dividend. The parties hereto
acknowledge that the Board of Directors of the Company on November 4, 1996
declared a dividend payable to shareholder of record of the Company on November
5, 1996.
Section 3.08. Transfer of Company NoteTransfer of Company Note.
Immediately after the Effective Time, the Stockholder shall assign and transfer
the Company Note to the Parent or its designee.
ARTICLE IV. CONDITIONS
Section 4.01. Conditions to the MergerConditions to the Merger. The
respective obligations of all parties to consummate the transactions
contemplated by this Agreement shall be subject to the fulfillment, at or prior
to the Effective Time, of the following conditions:
(a) Stockholder Approval. This Agreement and the transactions
contemplated hereby shall have been approved and adopted by the requisite
affirmative vote of the stockholder of the Company to the extent required
by Delaware Law and the Certificate of Incorporation of the Company.
(b) No Order. No statute, rule, regulation, order, executive order,
decree or injunction shall have been enacted, entered, promulgated or
enforced by any court or governmental authority which is in effect and has
the effect of prohibiting the consummation of the Merger (it being agreed
that each of the parties hereto shall use their respective best efforts to
have any such injunction lifted).
Section 4.02. Conditions to the Obligations of the
StockholderConditions to the Obligations of the Stockholder. The obligations of
the Stockholder under this Agreement shall be subject to the satisfaction or
waiver of the following conditions on or before the Closing Date:
(a) Opinions of Parent's Counsel. The Stockholder shall have
received from Shearman & Sterling, counsel for the Parent and the Sub, and
from Lionel, Xxxxxx & Xxxxxxx, Nevada counsel for the Parent and the Sub,
opinions dated the Closing Date in form and substance satisfactory to the
Stockholder.
(b) Representations and Warranties Complete and Correct. The
representations and warranties of the Parent contained in Section 5.01
hereof shall have been complete and correct in all material respects as of
the Closing Date.
(c) Compliance with this Agreement. The Parent shall have performed
and complied in all material respects with all agreements, covenants and
conditions contained herein which are required to be performed or complied
with by it on or before the Closing Date.
(d) Officers' Certificate. The Stockholder shall have received a
certificate, dated the Closing Date and signed by the President or any
Vice President and attested by the Secretary of the Parent, certifying
that the conditions set forth in Sections 4.02(b) and 4.02(c) are
satisfied on and as of such date.
(e) Consents; Permits. The Parent shall have received all consents,
permits, approvals and other authorizations that may be required from, and
made all such filings and declarations that may be required with, any
person pursuant to any law, statute, regulation or rule (federal, state,
local and foreign), or pursuant to any agreement, order or decree by which
the Parent or any of its assets is bound, in connection with the
transactions contemplated by this Agreement, except for (a) notice
requirements which may be fulfilled subsequent to the Closing Date and (b)
consents, permits, approvals, authorizations, filings and declarations the
failure to obtain or to undertake (i) could not have a Material Adverse
Effect on the Parent or (ii) could not adversely affect the ability of the
Parent to perform its obligations under the Basic Agreements or any
agreement executed in accordance therewith.
(f) Stockholders' Agreement. The Parent shall have executed
and delivered the Stockholders' Agreement.
(g) Rent Rolls. Rent rolls of the Parent, certified as of a
recent date by the Treasurer of the Parent as being true and complete
in all material respects to his knowledge.
(h) Supporting Documents. The Stockholder and its counsel
shall have received copies of the following documents:
(i) (A) the Charter, certified as of a recent date by the
appropriate authority of the Parent's jurisdiction of incorporation,
and (B) a certificate of such authority dated as of a recent date as
to the due incorporation and good standing of the Parent, the
payment of all franchise and excise taxes by the Parent and listing
all documents of the Parent on file with said authority;
(ii) a certificate of the Secretary or an Assistant Secretary
of the Parent dated the Closing Date and certifying: (A) that
attached thereto is a true and complete copy of the Bylaws of the
Parent as in effect on the date of such certification; (B) that
attached thereto is a true and complete copy of all resolutions
adopted by the Board of Directors or a committee thereof or the
stockholders of the Parent authorizing the execution, delivery and
performance of the Basic Agreements, the issuance, sale and delivery
of the Preferred Shares and the reservation, issuance and delivery
of the Conversion Shares, and that all such resolutions are in full
force and effect and are all the resolutions adopted in connection
with the transactions contemplated by the Basic Agreements; (C) that
the Charter has not been amended since the date of the last
amendment or restatement referred to in the certificate delivered
pursuant to clause (i)(B) above; (D) that the Bylaws have not been
amended since the date of the last amendment referred to in the
certificate delivered pursuant to clause (ii)(A) above; and (E) the
incumbency and specimen signature of each officer of the Parent
executing any Basic Agreement, the stock certificates representing
the Preferred Shares and any agreement, certificate or instrument
furnished pursuant hereto, and a certification by another officer of
the Parent as to the incumbency and signature of the officer signing
the certificate referred to in this clause (ii)(E); and
(iii) such additional supporting documents and other
information with respect to the operations and affairs of the Parent
as the Stockholder may reasonably request.
Section 4.03. Conditions to the Obligations of the ParentConditions
to the Obligations of the Parent. The obligations of the Parent under this
Agreement shall be subject to the satisfaction or waiver of the following
conditions on or before the Closing Date:
(a) Opinion of Stockholder's Counsel. The Parent shall have received
from counsel to the Company and the Stockholder, an opinion of counsel
dated the Closing Date in form and substance satisfactory to the Parent.
(b) Compliance with this Agreement. Each of the Company and the
Stockholder shall have performed and complied in all material respects
with all agreements, covenants and conditions contained herein which are
required to be performed or complied on or before the Closing Date.
(c) Company's and Stockholder's Representations and Warranties
Complete and Correct. The representations and warranties of the Company
and the Stockholder contained in Sections 3.05 and 5.02 of this Agreement
shall be complete and correct when made and shall be complete and correct
at and as of the Closing Date, after giving effect to the transaction
contemplated by this Agreement, as if made on and as of such date.
(d) Other Documentation. The Parent shall have received such
additional supporting documents and other information as the Parent may
reasonably request.
ARTICLE V. REPRESENTATIONS AND WARRANTIES
Section 5.01. Representations and Warranties of the Parent and the
SubRepresentations and Warranties of the Parent and the Sub. Each of the Parent
and Sub, jointly and severally, represents and warrants to the Company and the
Stockholder as follows:
(a) Organization, Good Standing and Qualification. Each of the
Parent and its Subsidiaries is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation or organization, and the Parent and its Subsidiaries has all
requisite corporate power and authority under such laws to own or lease
and operate its properties and to carry on its business as now conducted.
The Parent and its Subsidiaries is duly qualified or licensed to do
business as a foreign corporation in good standing in each jurisdiction in
which the nature of the business transacted by it or the character of the
properties owned or leased by it requires it to so qualify or be licensed,
except where the failure to so qualify or be licensed or be in good
standing would not have a Material Adverse Effect. Each of the Parent and
Sub has the corporate power and authority to execute, deliver and perform
the Basic Agreements to which it is a party, and the Parent has the
corporate power and authority to issue, sell and deliver the 8% Preferred
Stock Series A and, upon conversion thereof, to issue and deliver the
Conversion Shares.
(b) Authorization, Enforceability. All corporate action on the part
of the Parent and Sub, and their respective officers, directors and
stockholders necessary for the authorization, execution and delivery of
the Basic Agreements, the performance of all obligations of the Parent and
Sub thereunder and the authorization, issuance, sale and delivery of the
8% Preferred Stock Series A and the Conversion Shares has been taken or
will be taken prior to the Closing. Each of the Basic Agreements has been
duly authorized, executed and delivered by the Parent and Sub and
constitutes valid and legally binding obligations of the Parent,
enforceable in accordance with their respective terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity (whether
enforcement is sought by proceedings in equity or at law).
(c) No Conflict. The execution and delivery by the Parent and Sub of
the Basic Agreements to which they are a party, the performance by the
Parent and Sub of their respective obligations thereunder, the issuance,
sale and delivery of the 8% Preferred Stock Series A and, upon conversion
thereof, the issuance and delivery of the Conversion Shares, will not
violate any provision of law, the Charter or Bylaws of the Parent or Sub,
or, any order of any court or other agency of government, or conflict
with, result in a breach of or constitute (with notice or lapse of time or
both) a default under any indenture, agreement or other instrument by
which the Parent or Sub or any of their respective properties or assets is
bound, or result in the creation or imposition of any lien, charge,
restriction, claim or lien of any nature whatsoever known to the Parent or
Sub upon any of the properties or assets of the Parent or Sub.
(d) Outstanding Options, Etc. As of the Closing Date, there are not
outstanding any options, warrants, rights (including conversion or
preemptive rights) or agreements, orally or in writing, for the purchase
or acquisition from the Parent of any shares of its capital stock except
for (i) the conversion privileges of the 7% Preferred Stock, and the 8%
Preferred Stock Series A and (ii) options to purchase up to 952,500 shares
of Common Stock that have been issued to directors and employees of the
Parent.
(e) Valid Issuance of Securities. (i) The 8% Preferred Stock Series
A to be issued pursuant to this Agreement will be duly and validly issued,
fully paid and nonassessable. The Common Stock issuable upon conversion of
8% Preferred Stock Series A has been duly and validly reserved for
issuance, and upon issuance in accordance with the Charter, shall be duly
and validly issued, fully paid and non-assessable.
(ii) Neither the issuance, sale or delivery of the 8% Preferred
Stock Series A nor, upon the conversion thereof, the issuance or delivery
of the Conversion Shares is subject to any preemptive right of
stockholders of the Parent arising under law or the Charter or Bylaws of
the Parent, to any contractual right of first refusal or other right in
favor of any person.
(f) Litigation. There is no action, suit, proceeding or
investigation pending or currently threatened against the Parent or Sub
that questions the validity of the Basic Agreements or the right of the
Parent or Sub to enter into them, or to consummate the transactions
contemplated thereby, or that might, either individually or in the
aggregate, have a Material Adverse Effect on the Parent, or result in any
change in the current equity ownership of the Parent, nor is the Parent
aware that there is any basis for the foregoing. The Parent is not a party
or subject to the provisions of any order, writ, injunction, judgment or
decree of any court or government agency or instrumentality. There is no
action, suit, proceeding or investigation by the Parent currently pending
or which the Parent intends to initiate.
(g) Governmental Consents. Assuming the accuracy of the
representations and warranties of the Stockholder and the Company set
forth in this Agreement, no consent, approval, order or authorization of,
or registration, qualification, designation, declaration or filing with,
any governmental authority on the part of the Parent or Sub is required in
connection with the consummation of the transactions contemplated by this
Agreement.
(h) Compliance with Law and Other Instruments. The Parent is not in
conflict with, or in default or violation of, (i) any law, rule,
regulation, order, judgment or decree applicable to it or by which any of
its property or assets is bound or affected, or (ii) any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which it is a party or by
which the Parent or any property or asset of the Parent is bound or
affected, except for any such conflicts, defaults or violations that would
not, individually or in the aggregate, have a Material Adverse Effect.
(i) Disclosure. The Parent has fully provided the Stockholder with
all the information which the Stockholder has requested for deciding
whether to undertake the transactions contemplated by this Agreement and
all information which the Parent believes is reasonably necessary to
enable the Stockholder to make such decision, including the Parent's
Executive Summary Book and Property Information Book, as amended or
supplemented from time to time prior to date hereof (collectively, the
"Executive Summary"). Neither the Executive Summary, this Agreement nor
any other statement or certificate made or delivered in connection
herewith contains any untrue statement of a material fact or omits to
state a material fact necessary to make the statements herein or therein
not misleading, except that, with respect to projections contained in the
Executive Summary, the Parent represents only that such projections were
prepared in good faith and that the Parent believes there is a reasonable
basis for such projections.
(j) Securities Reports. All forms, reports, statements and other
documents filed by the Parent with the Commission were prepared in all
material respects in accordance with the requirements of applicable law
and did not at the time they were filed contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(k) Taxes. The Parent elected to be taxable as a real estate
investment trust for federal income tax purposes beginning in 1982, its
first year of existence. The Parent has filed all material income and
franchise tax returns required by applicable law to be filed by it, and
has timely paid all Taxes shown due on such returns. There is no
agreement, waiver or consent providing for an extension of time with
respect to the assessment of any tax or tax deficiency against the Parent.
There is no action, suit, proceeding, investigation, audit or claim now
pending against, or with respect to, the Parent in respect of any Taxes.
The Parent has not filed any agreement or consent under Section 341(f) of
the Internal Revenue Code of 1986, as amended.
(l) No Material Adverse Change. Subsequent to the respective dates
as of which information is given in the Parent's Form 10K for its fiscal
year ended December 31, 1995, its Form 10Qs for the first three fiscal
quarters of fiscal 1996 and its proxy statement for its June 20, 1996
meeting of stockholders (the "Commission Filings") and prior to the
Effective Time, except as set forth in or contemplated by the Commission
Filings and this Agreement, (i) there has not been any material adverse
change or any development involving a prospective material adverse change,
in the business, properties, business prospects, condition (financial or
otherwise) or results of operations of the Parent or any Subsidiary,
arising for any reason whatsoever, (ii) neither the Parent nor any
Subsidiary has incurred or will incur any material liabilities or
obligations, direct or contingent, nor has the Parent or any Subsidiary
entered into nor will it enter into any material transactions other than
pursuant to this Agreement and the transactions referred to herein and the
acquisition of Xxx Xxxxxxx Xxxxxxx, Xxx Xxxx, Xxxxxxxx and (iii) neither
the Parent nor any Subsidiary has or will have purchased any of its
outstanding capital stock.
(m) Title to Properties. To the Parent's knowledge, the Parent and
the Subsidiaries have good and marketable title to all properties and
assets described in the Commission Filings or the Executive Summary as
owned by them, free and clear of all liens, security interests, pledges,
charges, encumbrances, mortgages, defects or restrictions, except such as
are described in the Commission Filings or the Executive Summary or such
as do not have a Material Adverse Effect. To the Parent's knowledge, the
Parent and each Subsidiary owns or leases all such properties as are
necessary to its operations as now conducted or as proposed to be
conducted, except where the failure to so own or lease would not have a
Material Adverse Effect.
(n) Compliance with Laws. To the Parent's knowledge, (a) the
operations of the Parent and each Subsidiary with respect to any real
property currently leased or owned or by any means controlled by it are in
compliance in all material respects with all applicable federal, state,
and local laws, ordinances, rules, and regulations relating to
occupational health and safety and the environment, and the Parent and
each Subsidiary has all licenses, permits and authorizations necessary to
operate under all such laws, ordinances, rules and regulations and are in
compliance with all terms and conditions of such licenses, permits and
authorizations except where the failure to comply would not have a
Material Adverse Effect; (b) neither the Parent nor any Subsidiary has
authorized or conducted or has knowledge of the generation,
transportation, storage, use, treatment, disposal or release of any
hazardous substance, hazardous waste, hazardous material, hazardous
constituent, toxic substance, pollutant, contaminant, petroleum product,
natural gas, liquefied gas or synthetic gas defined or regulated under any
environmental law on, in or under any real property of the Parent or any
Subsidiary in any amount which has a Material Adverse Effect; and (c)
there is no pending or, to the best knowledge of the Parent, any
threatened claim, litigation or any administrative agency proceeding, nor
has the Parent or any Subsidiary received any written or oral notice from
any governmental entity or third party, that (i) alleges a violation of
any laws, ordinances, rules and regulations by the Parent or such
Subsidiary; (ii) alleges the Parent or such Subsidiary is a liable party
under the Comprehensive Environmental Response Compensation, and Liability
Act, 42 U.S.C. ss. 9601 et seq, or any state superfund law; (iii) alleges
possible contamination of the environment by the Parent or such
Subsidiary; or (iv) alleges possible contamination of real property of the
Parent or any Subsidiary or any case which is likely to have a Material
Adverse Effect.
(o) Losses. Since December 31, 1995, neither the Parent nor any
Subsidiary has sustained any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as disclosed in or contemplated by
the Commission Filings or the Executive Summary, which has a Material
Adverse Effect.
(p) Seattle Obligation. The Cumulative Preference Deficit (as
defined in and pursuant to the Partnership Agreement of Third
University Limited Partnership, dated as of October 3, 1986 and as
amended to the date of this Agreement) payable to Xxxxx Seattle Inc. is
$8,107,590.86.
Section 5.02. Representations and Warranties of the Stockholder and
the CompanyRepresentations and Warranties of the Stockholder and the Company.
The Stockholder and the Company, jointly and severally, represent and warrant to
the Parent and Sub as follows:
(a) Incorporation and Authority of the Company and the Stockholder.
Each of the Company and the Stockholder is a corporation duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation or organization and has all necessary
corporate power and authority to enter into the Basic Agreements to which
it is a party, to carry out its obligations thereunder and to consummate
the transactions contemplated thereby. The execution and delivery by each
of the Company and the Stockholder of the Basic Agreements to which it is
party, and the consummation by each of the Company and the Stockholder of
the transactions contemplated thereby, have been duly authorized by all
necessary corporate action on the part of the Company and the Stockholder
and no other corporate proceedings on the part of the Company or the
Stockholder are necessary to authorize the Basic Agreements or to
consummate the transactions contemplated thereby. Each of the Company and
the Stockholder has duly executed and delivered each of the Basic
Agreements to which it is a party and, assuming due authorization,
execution and delivery by the other parties thereto, each of the Basic
Agreements constitutes the legal, valid and binding obligation of each of
the Company and the Stockholder enforceable against the Company and the
Stockholder in accordance with their respective terms. The restrictions on
business combinations contained in Section 203 of Delaware Law have been
satisfied with respect to the Merger.
(b) Organization and Qualification of the Company and the
Stockholder. (i) Each of the Company and the Stockholder has the requisite
power and authority and all necessary governmental approvals to own, lease
and operate its properties and to carry on its business as it is now being
conducted, except where the failure to be so organized, existing or in
good standing or to have such power, authority and governmental approvals
would not, individually or in the aggregate, have a Material Adverse
Effect. The Company is duly qualified or licensed as a foreign corporation
to do business, and is in good standing, in each jurisdiction where the
character of the properties owned, leased or operated by it or the nature
of its business makes such qualification or licensing necessary, except
for such failures to be so qualified or licensed and in good standing that
would not, individually or in the aggregate, have a Material Adverse
Effect. The Company does not directly or indirectly own any equity or
similar interest in, or any interest convertible into or exchangeable or
exercisable for, any equity or similar interest in, any corporation,
partnership, joint venture or other business association or entity.
(ii) True, complete and correct copies of the Certificate of
Incorporation and Bylaws of the Company, each as in effect on the date
hereof, have been delivered by the Company to the Parent.
(c) Capital Stock of the Company. The authorized capital stock of
the Company consists of 1,000 shares of common stock ("Company Common
Stock"). As of the date hereof, 100 shares of Company Common Stock are
issued and outstanding, all of which are validly issued, fully paid and
nonassessable. None of the issued and outstanding shares of Company Common
Stock was issued in violation of any preemptive rights. There are no
options, warrants, convertible securities or other rights, agreements,
arrangements or commitments of any character relating to the capital stock
of the Company or obligating the Company to issue or sell any shares of
capital stock of, or any other interest in, the Company. There are no
outstanding contractual obligations of the Company to repurchase, redeem
or otherwise acquire any shares of Company Common Stock or to provide
funds to, or make any investment (in the form of a loan, capital
contribution or otherwise) in, any other Person.
(d) Corporate Books and Records. The minute books of the Company
contain and properly reflect all proceedings of the stockholders, Boards
of Directors and all committees of the Boards of Directors of the Company.
Complete and accurate copies of all such minute books and of the stock
register of the Company have been provided or made available by the
Company to the Parent. The foregoing notwithstanding, copies of the minute
books of the Company made available by the Company to the Parent prior to
the Effective Time do not contain records of proceedings relating to the
consideration of the transactions contemplated by this Agreement or the
alternatives thereto considered by the Boards of Directors (or committees
thereof) of the Company in the discharge of their fiduciary duties.
(e) Taxes. The Company is a qualified REIT subsidiary within the
meaning of Section 856(i) of the Code. The Company has filed all material
income and franchise tax returns required by applicable law to be filed by
it, and has timely paid all Taxes shown due on such returns. There is no
agreement, waiver or consent providing for an extension of time with
respect to the assessment of any Taxes or tax deficiency against the
Company. There is no action, suit, proceeding, investigation, audit or
claim now pending against, or with respect to the Company in respect of
any Taxes. The Company has not filed any agreement or consent under
Section 341(f) of the Internal Revenue Code of 1986, as amended. The
Company has no built-in gain within the meaning of Internal Revenue
Service Notice 88-19. There are no tax liens on any assets or any
subsidiaries of the Company. Neither the Stockholder nor any affiliate is
a party to any agreement or arrangement that would result, separately or
in the aggregate, in the actual or deemed payment by the Company or a
Company subsidiary of any "excess parachute payments" within the meaning
of Section 280G of the Code.
(f) Vote Required. The affirmative vote of the holders of
Company Common Stock, is the only vote of the holders of any class or
series of capital stock of the Company necessary to approve the Merger.
(g) Full Disclosure. No representation or warranty of the Company or
the Stockholder in this Agreement, nor any statement or certificate
furnished or to be furnished to the Parent pursuant to this Agreement, or
in connection with the transactions contemplated by this Agreement,
contains or will contain any untrue statement of a material fact, or omits
or will omit to state a material fact necessary to make the statements
contained herein or therein not misleading.
(h) Purchase Entirely for Own Account. The 8% Preferred Stock Series
A will be acquired for investment for the Stockholder's own account, not
as a nominee or agent, and not with a view to the resale or distribution
of any part thereof, and the Stockholder has no present intention of
selling, granting any participation in, or otherwise distributing the
same. The Stockholder further represents that the Stockholder does not
presently have any contract, undertaking, agreement or arrangement with
any person to sell, transfer or grant participation to such person or to
any third person, with respect to any of the 8% Preferred Stock Series A.
(i) Investment Experience. The Stockholder is an experienced
investor and acknowledges that it can bear the economic risk of its
investment and has such knowledge and experience in financial or business
matters that it is capable of evaluating the merits and risks of the
investment in the 8% Preferred Stock Series A. The Stockholder also
represents it has not been organized for the purpose of acquiring the 8%
Preferred Stock Series A.
(j) Restricted Securities. The Stockholder understands that the 8%
Preferred Stock Series A, and the shares of Common Stock issuable upon
conversion thereof, are characterized as "restricted securities" under the
federal securities laws inasmuch as they are being acquired from the
Parent in a transaction not involving a public offering and that under
such laws and applicable regulations such shares may be resold without
registration under the 1933 Act only in certain limited circumstances. In
this connection, the Stockholder represents that it is familiar with SEC
Rules 144 and 144A, as presently in effect, and understands the resale
limitations imposed thereby and otherwise by the 1933 Act.
(k) Access to Information. The Stockholder has had access to the
management and records of the Parent and has had an opportunity to ask
questions of management of the Parent regarding its business and affairs.
ARTICLE VI. COVENANTS OF THE PARENT
The Parent covenants and agrees with the Stockholder that, so long
as any of the 8% Preferred Stock Series A are outstanding:
Section 6.01. Financial Statements, Reports, Xxx.Xxxxxxxxx
Statements, Reports, Etc. So long as the Stockholder owns shares of 8% Preferred
Stock Series A, the Parent shall furnish to the Stockholder, within 30 days
after the Parent files with the Commission, copies of its annual reports and
other information, documents and reports (or copies of such portions of any of
the foregoing as the Commission may by rules and regulations prescribe) that it
is required to file with the Commission pursuant to Section 13 or 14 of the 1934
Act.
Section 6.02. Reserve for Conversion SharesReserve for Conversion
Shares. The Parent shall at all times reserve and keep available out of its
authorized but unissued shares of Common Stock, for the purpose of effecting the
conversion of the 8% Preferred Stock Series A, such number of its duly
authorized shares of Common Stock as shall be sufficient to effect the
conversion of the 8% Preferred Stock Series A from time to time outstanding. If
at any time the number of authorized but unissued shares of Common Stock shall
not be sufficient to effect the conversion of the 8% Preferred Stock Series A,
the Parent shall forthwith take such corporate action as may be necessary to
increase its authorized but unissued shares of Common Stock to such number of
shares as shall be sufficient for such purpose. The Parent shall obtain any
authorization, consent, approval or other action by or make any filing with any
court or administrative body that may be required under applicable state
securities laws in connection with the issuance of shares of Common Stock upon
conversion of the 8% Preferred Stock Series A.
Section 6.03. Debt RestrictionDebt Restriction. The Parent shall not
Incur any Debt unless after giving effect to such Incurrence the Debt of the
Parent will not exceed 60% of the appraised value of the assets of the Parent;
provided that, notwithstanding the foregoing, the Parent may at any time Incur
Debt in an amount which does not exceed the principal amount of outstanding Debt
of the Parent extended, refinanced, renewed or replaced with the proceeds
thereof, plus any costs associated with the extension, refinancing, renewal or
replacement.
Section 6.04. Payment of Dividends on the 7% Preferred Stock and the
8% Preferred StockPayment of Dividends on the 7% Preferred Stock and the 8%
Preferred Stock. For so long as any 8% Preferred Stock Series A remains
outstanding, the Parent shall continue to pay dividends on the 7% Preferred
Stock and the 8% Preferred Stock in good faith so long as it has funds available
therefor.
ARTICLE VII. SURVIVAL OF REPRESENTATIONS; INDEMNITY
Section 7.01. SurvivalSurvival. Each and every representation and
warranty contained in this Agreement shall survive the Closing and shall not
merge into the documents delivered at the Closing, but instead shall be
independently enforceable except to the extent expressly limited herein;
provided, however, each of the representations and warranties of the Stockholder
contained in Sections 3.05(a)(i) through (vii), (x) and (xiii) shall terminate
on the first anniversary of the Closing Date and each of the other
representations of the Stockholder and each of the representations of the Parent
shall terminate on the sixth anniversary of the Closing Date. No party to this
Agreement shall be permitted to make any claim against any other party for
breach of representation or warranty unless the amount claimed in good faith by
the claiming party exceeds in the aggregate $10,000.
Section 7.02. Indemnification by the StockholderIndemnification by
the Stockholder. The Stockholder shall indemnify and hold each of the Parent and
Sub harmless against any and all claims, losses, damages, penalties, fines,
forfeitures, reasonable attorneys' fees and expenses and related costs, expenses
of litigation, judgments, and any other costs, fees and expenses resulting from
(i) a breach of a representation or warranty made by the Stockholder or the
Company under this Agreement, (ii) all Taxes that may be imposed or asserted
with respect to the Company or its assets or operations in respect of any period
or portion thereof ending on or before the Closing Date, and any Taxes arising
as a result of the Merger (whether in accordance with Internal Revenue Service
Notice 88-19, under Section 1445 of the Code, or otherwise), or (iii) an action,
suit or proceeding brought or filed against the Company, the Parent or Sub based
on acts or omissions of the Company occurring prior to the Closing Date.
Section 7.03. Indemnification by the ParentIndemnification by the
Parent. The Parent shall indemnify and hold the Stockholder harmless against any
and all claims, losses, damages, penalties, fines, forfeitures, reasonable
attorneys' fees and expenses and related costs, expenses of litigation,
judgments, and any other costs, fees and expenses resulting from a breach of a
representation or warranty made by the Parent under this Agreement.
Section 7.04. Indemnification ProceduresIndemnification Procedures.
Promptly after receipt by an indemnified party under this Article VII of notice
of the commencement of any action such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party under this Article
VII, notify the indemnifying party in writing of the commencement thereof;
provided, however, that the failure so to notify the indemnifying party will not
relieve it from any liability which it may have under this Article VII except to
the extent it has been materially prejudiced by such failure and, provided,
further, that the failure to notify the indemnifying party shall not relieve the
indemnifying party from any liability which it may have to any indemnified party
otherwise than under this Article VII. In case any such action is brought
against any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and to the extent that it may wish, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party). After
notice from the indemnifying party to such indemnified party of its election so
to assume the defense of such claim or action, the indemnifying party will not
be liable to such indemnified party under this Article VII for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation; provided,
that the indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear the reasonable
fees, costs and expenses of such separate counsel if (i) the use of counsel
chosen by the indemnifying party to represent the indemnified party would
present such counsel with a conflict or potential conflict of interest, (ii) the
actual or potential defendants in, or targets of, any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the commencement of
such action or (iv) the indemnifying party shall authorize the indemnified party
to employ separate counsel at the expense of the indemnifying party. No
indemnifying party shall be liable for any settlement of any action or claim for
monetary damages which an indemnified party may effect without the consent of
the indemnifying party, which consent shall not be unreasonably withheld. The
indemnification obligations hereunder are payable as they are incurred.
ARTICLE VIII. MISCELLANEOUS
Section 8.01. ExpensesExpenses. The Parent agrees to pay on demand
all reasonable out-of-pocket costs and expenses of the Stockholder in connection
with the execution and delivery of the Basic Agreements and the other documents
to be delivered under the Basic Agreements.
Section 8.02. AssignmentAssignment. This Agreement may not be
assigned by operation of law or otherwise without the express written consent of
each of the parties hereto.
Section 8.03. Benefit; Successors and AssignsBenefit; Successors and
Assigns. Except as otherwise provided herein, this Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns; provided, however, that this Agreement shall
not inure to the benefit of any successor or assignee unless such assignee shall
have complied with the terms of Section 8.02. Nothing in this Agreement either
express or implied is intended to confer on any person, other than the parties
hereto and their respective successors and permitted assigns, any rights,
remedies or obligations under or by reason of this Agreement.
Section 8.04. Specific PerformanceSpecific Performance. The parties
hereto agree that irreparable damage would occur in the event any provision of
this Agreement was not performed in accordance with the terms hereof and that
the parties shall be entitled to specific performance of the terms hereof, in
addition to any other remedy at law or equity.
Section 8.05. NoticesNotices. All notices, requests, consents and
other communications hereunder shall be in writing and shall be delivered in
person or mailed by certified or registered mail, return receipt requested, or
telecopied in the case of non-U.S. residents, addressed as follows:
(a) if to the Parent or the Sub:
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
Fax: (000) 000-0000
with a copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: X. X. Xxxxx, Xx.
Fax: (000) 000-0000
(b) if to the Stockholder or the Company:
CGR Advisors
000 Xxxx Xxxxx Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx XX 00000-0000
Attention: President
Fax: (000) 000-0000
with a copy to:
Xxxxxx, Golden & Xxxxxxx
2800 One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxx
Fax: (000) 000-0000
or, in any such case, at such other address or addresses as shall have been
furnished in writing by such party to the others. All notices, requests,
consents and other communications hereunder shall be deemed to have been duly
given or served on the date on which personally delivered or on the date
actually received, if sent by mail, telecopier or telex, with receipt
acknowledged.
Section 8.06. Governing LawGoverning Law. This Agreement shall
be governed by and construed in accordance with the laws of the State of New
York.
Section 8.07. Entire AgreementEntire Agreement. This Agreement,
including the Schedules and Exhibits hereto, constitutes the sole and entire
agreement of the parties with respect to the subject matter hereof. All
Schedules and Exhibits hereto are hereby incorporated herein by reference.
Section 8.08. CounterpartsCounterparts. This Agreement may be
executed in two or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.
Section 8.09. AmendmentsAmendments. This Agreement may not be
amended or modified, and no provisions hereof may be waived, without the written
consent of the Parent and the Stockholder.
Section 8.10. SeverabilitySeverability. If any provision of this
Agreement shall be declared void or unenforceable by any judicial or
administrative authority, the validity of any other provision and of the entire
Agreement shall not be affected thereby.
Section 8.11. Titles and SubtitlesTitles and Subtitles. The titles
and subtitles used in this Agreement are for convenience only and are not to be
considered in construing or interpreting any term or provision of this
Agreement.
Section 8.12. Further AssurancesFurther Assurances. From and after
the date of this Agreement, upon the request of the Parent or the Stockholder,
the Parent and the Stockholder shall execute and deliver such instruments,
documents and other writings as may be reasonably necessary or desirable to
confirm and carry out and to effectuate fully the intent and purposes of this
Agreement.
IN WITNESS WHEREOF, the Parent, Sub, the Company and the Stockholder
have executed this Agreement as of the day and year first above written.
CORNERSTONE PROPERTIES INC.
By:
Name:
Title:
CSTONE-PITTSBURGH TRUST
By:
Name:
Title:
HEXALON REAL ESTATE, INC.
By:
Name:
Title:
XXXXX BUILDING INC.
By:
Name:
Title:
EXHIBIT A
[Stockholders' Agreement dated November [__], 1996 between the Parent and the
Stockholder - Recital]
EXHIBIT B
[Certificate of Formation of the Surviving Corporations - 2.04]
EXHIBIT C
[Certificate of Designation for the 8% Preferred Stock Series A - 2.06]
35
EXHIBIT R-A
[Property Description]
36
EXHIBIT R-B
[Personal Property List]
37
EXHIBIT R-C
[Document List]
1
EXHIBIT R-D
Form of Non-Foreign Certificate
NON-FOREIGN CERTIFICATE
The Xxxxx Building
Pittsburgh, Pennsylvania
To inform Cornerstone Properties Inc., a Nevada corporation (the
"Transferee"), that withholding of tax under Section 1445 of the Internal
Revenue Code of 1986, as amended (the "Code"), will not be required upon the
transfer of certain real property to the Transferee by _____________, a
_________________ (the "Transferor"), the undersigned hereby certifies the
following on behalf of the Transferor:
1. The Transferor is not a foreign corporation, foreign partnership,
foreign trust, or foreign estate (as those terms are defined in the Code and
the Income Tax Regulations promulgated thereunder);
2. The Transferor's U.S. employer identification number is
__________; and
3. The Transferor's office address is:
The Transferor understands that this Certificate may be disclosed to the
Internal Revenue Service by the Transferee and that any false statement
contained herein could be punished by fine, imprisonment or both.
Under penalty of perjury, I declare that I have examined this Certificate
and to the best of my knowledge and belief it is true, correct and complete, and
I further declare that I have authority to sign this document on behalf of the
Transferor.
Date: November __, 1996
"Transferor"
XXXXX BUILDING, INC.
By: ________________________
Name:
Title:
EXHIBIT R-E
Form of Tenant Estoppel
To: Cornerstone Properties Inc. ("Buyer")
Re: The Xxxxx Building, Pittsburgh, Pennsylvania (the "Property")
The undersigned ______________________________, a _____________
("Tenant"), is the tenant under that certain lease dated _____________ (the
"Lease," which term shall include the amendments, if any, referred to below) by
and between Tenant and Xxxxx Building, Inc., as lessor ("Landlord"), covering
premises commonly known as [Suite ____________] in the Property (the "Leased
Premises"). Tenant hereby certifies the following as of the date hereof:
1. Tenant is the tenant under the Lease demising the Leased
Premises. The term of the Lease commenced on ___________________ and will
expire on _________________.
2. Tenant certifies to Buyer that:
i. the Lease is in full force and effect and has not been cancelled,
modified, assigned, extended or amended except as follows:
ii. the current monthly rent for the Leased Premises as of
___________ is $_______ and has been paid through
------------------;
iii. the total current additional/escalation rent for common area
maintenance, real estate taxes, insurance and the like (all charges
other than fixed rent) as of October 1, 1996 is $_______ and such
additional rent is payable monthly;
iv. no installment of rent under the Lease has been paid more than
thirty (30) days in advance;
v. the Lease has been neither assigned nor any portion of the Leased
Premises subleased by Tenant except as follows:
vi. Tenant has no existing defenses, offsets, deductions, liens, claims
or credits against the rentals under the Lease or against the
enforcement of the Lease by Landlord, and, to the best of Tenant's
knowledge, Landlord is not in default under the Lease; and
vii. Tenant has paid a security deposit in the amount of $___________.
3. This certification is made to induce Buyer to acquire the Property of
which the Leased Premises are part. Tenant further acknowledges and agrees that
the addressees hereof and their respective successors and assigns and the holder
of any mortgage at any time encumbering the Property from and after the date of
this Tenant Estoppel Certificate shall have the right to rely on this Tenant
Estoppel Certificate.
4. Tenant acknowledges that in connection with the sale of the Property by
Landlord to Buyer all of the interest of the Landlord in and to the Lease will
be duly assigned to Buyer and that, after notice from Landlord and Buyer, all
rent payments under the Lease shall be paid to Buyer or its authorized agent,
from and after the date of sale.
5. The undersigned is authorized to execute this Tenant Estoppel
Certificate on behalf of Tenant.
Dated this ___ day of ___________, 1996.
[Tenant]
By:_________________________
Name:
Title:
EXHIBIT R-F
[Leasing Commissions]
EXHIBIT R-G
[Litigation]
EXHIBIT R-H
[Liens on Personal Property]
EXHIBIT R-I
[Security Deposits]
AGREEMENT AND PLAN OF MERGER
Among
CORNERSTONE PROPERTIES INC.,
CSTONE - PITTSBURGH TRUST,
XXXXX BUILDING, INC.
and
HEXALON REAL ESTATE, INC.
Dated as of November 7, 1996
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS.................................................... 1
Section 1.01. Definitions........................................... 1
ARTICLE II. THE MERGER.................................................... 6
Section 2.01. The Merger............................................ 6
Section 2.02. Effective Time; Closing............................... 6
Section 2.03. Effect of the Merger.................................. 6
Section 2.04. Certificate of Formation; Bylaws...................... 6
Section 2.05. Directors and Officers................................ 7
Section 2.06. Conversion of Company Shares.......................... 7
Section 2.07. Conversion of Sub Common Stock........................ 7
ARTICLE III. CERTAIN MATTERS PERTAINING TO
REAL ESTATE AND THE COMPANY...................... 7
Section 3.01. Delivery of Materials for Review...................... 7
Section 3.02. As-Is Clause.......................................... 7
Section 3.03. Closing Deliveries.................................... 8
Section 3.04. Closing Costs and Prorations.......................... 9
Section 3.05. Stockholder's Representations and Warranties.......... 12
Section 3.06. Brokerage Commission.................................. 15
Section 3.07. Company Dividend...................................... 16
Section 3.08. Transfer of Company Note.............................. 16
ARTICLE IV. CONDITIONS.................................................... 16
Section 4.01. Conditions to the Merger.............................. 16
Section 4.02. Conditions to the Obligations of the Stockholder...... 16
Section 4.03. Conditions to the Obligations of the Parent........... 18
ARTICLE V. REPRESENTATIONS AND WARRANTIES................................. 18
Section 5.01. Representations and Warranties of the Parent and
the Sub........................................................ 18
Section 5.02. Representations and Warranties of the Stockholder
and the Company................................................ 23
ARTICLE VI. COVENANTS OF THE PARENT....................................... 26
Section 6.01. Financial Statements, Reports, Etc.................... 26
Section 6.02. Reserve for Conversion Shares......................... 26
Section 6.03. Debt Restriction...................................... 26
Section 6.04. Payment of Dividends on the 7% Preferred Stock and
the 8% Preferred Stock......................................... 26
ARTICLE VII. SURVIVAL OF REPRESENTATIONS; INDEMNITY....................... 27
Section 7.01. Survival.............................................. 27
Section 7.02. Indemnification by the Stockholder.................... 27
Section 7.03. Indemnification by the Parent......................... 27
Section 7.04. Indemnification Procedures............................ 27
ARTICLE VIII. MISCELLANEOUS............................................... 28
Section 8.01. Expenses.............................................. 28
Section 8.02. Assignment............................................ 28
Section 8.03. Benefit; Successors and Assigns....................... 28
Section 8.04. Specific Performance.................................. 29
Section 8.05. Notices............................................... 29
Section 8.06. Governing Law......................................... 30
Section 8.07. Entire Agreement...................................... 30
Section 8.08. Counterparts.......................................... 30
Section 8.09. Amendments............................................ 30
Section 8.10. Severability.......................................... 30
Section 8.11. Titles and Subtitles.................................. 30
Section 8.12. Further Assurances.................................... 30
EXHIBIT A Stockholders' Agreement dated November 7, 1996 between the
Parent and the Stockholder - Recital
EXHIBIT B Certificate of Formation of the Surviving Corporation - 2.04
EXHIBIT C Certificate of Designation for the 8% Preferred Stock Series A
- 2.06
EXHIBIT R-A Property Description EXHIBIT R-B Personal Property List EXHIBIT R-C
Document List EXHIBIT R-D Form of Non-Foreign Certificate EXHIBIT R-E Form of
Tenant Estoppel
EXHIBIT R-F Leasing Commissions-Protection Lists EXHIBIT R-G Litigation EXHIBIT
R-H Liens on Personal Property EXHIBIT R-I Security Deposits
