SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT (the "Agreement"), dated as of December
15, 1998, between Starwood Financial Trust, a Maryland real estate investment
trust (the "Company"), and the investors listed on Exhibit A hereto
(individually, an "Investor" and collectively, the "Investors").
WHEREAS, upon the terms and subject to the conditions of this
Agreement, the Investors desire to purchase Series A Preferred Shares of
Beneficial Interest of the Company, par value $.01 per share (the "Series A
Preferred"), and Warrants (the "Warrants") to purchase Class A Shares of
Beneficial Interest of the Company, par value $1.00 per share (the "Class A
Shares"), and the Company desires to sell shares of Series A Preferred and
Warrants to the Investors.
NOW, THEREFORE, the Company and the Investors agree as follows:
1. Purchase of Securities.
1.1. Purchase of Series A Preferred and Warrants. Upon the terms and
subject to the conditions of this Agreement, the Company hereby agrees to sell
and the Investors hereby agree to purchase an aggregate of (i) 4,400,000 shares
of Series A Preferred (the "Investor Shares") and (ii) Warrants to purchase
6,000,000 Class A Shares (the "Investor Warrants") for an aggregate purchase
price of $220,000,000 (the "Purchase Price"). The amount of Investor Shares and
Investor Warrants being acquired by each Investor is set forth opposite such
Investor's name on Exhibit A hereto. Each of the Investor's obligations
hereunder shall be several. At the Closing (as hereinafter defined) each
Investor will pay or tender to the Company in immediately available funds its
allocable portion of the Purchase Price and the Company shall deliver to each
Investor its respective Investor Shares and Investor Warrants.
1.2. Issuance of Series A Preferred and Warrants; Execution of
Additional Agreements.
(a) At the Closing, the Company shall issue and deliver to each
Investor acquiring shares of Series A Preferred a certificate or certificates
representing the number of Investor Shares to be acquired by such Investor
pursuant hereto, which certificate or certificates shall be registered in such
Investor's name, and shall be in the form agreed upon by the Company and the
Investors. The Investor Shares shall have the rights, preferences and
limitations set forth in the Articles Supplementary of the Company attached as
Exhibit B hereto (the "Articles Supplementary"). At the Closing, the Company and
the Investors shall execute and deliver the Ownership Limit Waiver Agreement in
the form attached as Exhibit C hereto (the "Ownership Waiver").
(b) At the Closing, the Company shall issue and deliver to each
Investor acquiring Warrants a certificate or certificates representing the
number of Investor Warrants to be acquired by such Investor pursuant hereto,
which certificate or certificates shall be registered in such Investor's name,
and shall be in the form attached as Exhibit D hereto (the "Warrant
Certificate").
(c) At the Closing, the Company, the Investors, Starwood Mezzanine
Investors, L.P., a Delaware limited partnership ("Starwood Mezzanine"), SOFI-IV
SMT Holdings, L.L.C., a Delaware limited liability company ("SOFI IV"), and B
Holdings, L.L.C., a Delaware limited liability company ("BLLC", and together
with Starwood Mezzanine and SOFI IV, "Starwood"), shall execute and deliver the
Investor Rights Agreement setting forth the rights and obligations of the
parties hereto with respect to the Investor Shares, Investor Warrants and the
Class A Shares issuable upon exercise of the Investor Warrants (the "Underlying
Class A Shares") and certain obligations of Starwood in the form attached as
Exhibit E hereto (the "Investor Rights Agreement," and together with the
Articles Supplementary, the Ownership Waiver and the Warrant Certificates, the
"Additional Agreements").
1.3. Closing. The issuance and delivery of the Investor Shares and
Investor Warrants by the Company to the Investors and the delivery of the
allocable portion of the aggregate Purchase Price to the Company by the
Investors and related transactions contemplated by this Agreement (the
"Closing"), will take place at the offices of Xxxxxxxx & Xxxxxxxx LLP, 1290
Avenue of the Americas, New York, New York, at 10:00 A.M. on December 14, 1998
(the "Closing Date"), or at such other time and place as the Company and the
Investors may agree orally or in writing. The Closing shall take place
concurrently with and shall be conditioned upon the consummation of the
transaction contemplated by the Asset Purchase and Sale Agreement, dated
December 14, 1998 by and among Lazard Freres Real Estate Fund L.P., a Delaware
limited partnership, Lazard Freres Real Estate Fund II L.P., a Delaware limited
partnership, Prometheus Mid-Atlantic Holding, L.P., a Delaware limited
partnership, SDJ Capital II, Ltd., a Cayman Islands exempted company, Atlantic
Preferred II LLC, a New York limited liability company, Indian Preferred LLC, a
New York limited liability company, Prometheus Investment Holding, L.P., a
Delaware limited partnership, the Company, SFT II, Inc., a Delaware corporation,
Starwood Cayman Bonds, Inc., a Delaware corporation, and Starwood D.C., Inc., a
Delaware corporation (the "Asset Purchase Agreement"), which Asset Purchase
Agreement shall be in full force and effect without modification or default.
1.4. Unauthorized Representations. Without in any way limiting any
other disclaimer or limitation set forth in this Agreement, and without in any
way limiting or disclaiming any of the Company's representations and warranties
set forth in this Agreement, the Investors expressly acknowledge and agree that
no Affiliate of the Company and no director, trustee, officer, manager,
attorney, agent, employee, accountant, consultant, advisor or representative of
the Company or any Affiliate of the Company is authorized to make any
representation or warranty regarding the transaction contemplated hereby, and
that neither the Company nor the Company's Affiliates, nor any director,
trustee, officer, manager, attorney, agent, employee, accountant, consultant,
advisor or representative of the Company or any Affiliate of the Company has
made any representation whatsoever, express or implied, regarding the Company,
its Subsidiaries (defined below) or the Securities (defined below), except for
the representations and warranties set forth in this Agreement. As used in the
Agreement, unless the context otherwise requires, "Affiliate" shall have the
meaning set forth in the Investor Rights Agreement.
2
2. Representations and Warranties of the Investors.
Each Investor, severally and not jointly, represents and warrants to
the Company as follows:
2.1. No Registration of Shares. The Investor is aware that the offer
and sale of the Investor Shares and Investor Warrants and, when and if issued,
the Underlying Class A Shares (the Investor Shares, Investor Warrants and Class
A Shares issuable upon exercise of the Investor Warrants are collectively
referred to herein as the "Securities"), have not been registered under the
Securities Act of 1933, as amended (the "Act"), that such offer and sale are
intended to be exempt from registration under the Act and the rules promulgated
thereunder by the Securities and Exchange Commission (the "SEC"), and that the
Securities cannot be sold, assigned, transferred or otherwise disposed of unless
they are subsequently registered under the Act or an exemption from such
registration is available. The Investor is also aware that sales, assignments,
transfers and other dispositions of the Securities may be further restricted by
state securities laws, the Company's Amended and Restated Declaration of Trust,
as filed with the Maryland Department of Assessment and Taxation (the "MDAT") on
June 18, 1998 and as amended by the Articles of Amendment filed with the MDAT on
December 14, 1998 (the "Declaration of Trust"), as supplemented by the Articles
Supplementary, the Warrant Certificate and the Investor Rights Agreement.
2.2. Suitability of Investment.
(a) The Investor understands that there is no established market for
the Investor Shares or Investor Warrants and that no public market for the
Investor Shares or Investor Warrants is presently foreseeable.
(b) The Investor is acquiring the Securities for its own account for
investment and not with a view towards the resale, transfer or distribution
thereof, nor with any present intention of distributing the securities, but
subject, nevertheless, to any requirement of law that the disposition of the
Investor's property shall at all times be within the Investor's control, and
subject to the restrictions in the Declaration of Trust, Articles Supplementary,
Warrant Certificates and Investor Rights Agreement, without prejudice to the
Investor's right at all times to sell or otherwise dispose of all or any part of
such securities under a registration under the Act or under an exemption from
such registration.
(c) The Investor is an "accredited investor" within the meaning of Rule
501 of Regulation D of the Act.
(d) The Investor has sufficient knowledge and experience in financial
and business matters so as to be able to evaluate the risks and merits of its
investment in the Company, and it is able financially to bear the risks thereof.
The Investor has had an opportunity to conduct such due diligence, investigation
and analysis of the Company, its Subsidiaries and the Securities and to discuss
the business, management and financial affairs of the Company with management of
the Company as the Investor deems necessary or appropriate with respect to its
investment in the Company.
3
2.3. Power; Authority; Enforceability. The Investor has full power and
legal right to enter into, execute and deliver this Agreement and the Investor
Rights Agreement and to perform its obligations hereunder and thereunder. All
action on the part of the Investor necessary for the authorization, execution
and delivery of this Agreement and the Investor Rights Agreement and for the
performance of all obligations of the Investor hereunder and thereunder has been
taken. This Agreement has been, and, as of the Closing the Investor Rights
Agreement will be, duly executed and delivered by the Investor and will
constitute valid and legally binding obligations of the Investor, enforceable in
accordance with their respective terms.
2.4. Organization. Each of Lazard Freres Real Estate Fund II L.P. and
Lazard Freres Real Estate Offshore Fund II L.P. is duly organized and in good
standing as a limited partnership under the laws of the State of Delaware. LF
Mortgage REIT ("REIT Investor") is duly organized and validly existing as a real
estate investment trust in good standing under the laws of the State of
Maryland.
2.5. Brokerage and Finder Fees. No Investor nor any of its respective
officers, directors, general partners, agents, employees or Affiliates, has
engaged or authorized any broker or finder, other xxxx Xxxxxxx Xxxxx & Co., to
act, directly or indirectly, on its behalf, in connection with the transactions
contemplated by this Agreement, or has consented to or acquiesced in anyone so
acting, and it knows of no claim by any person for compensation for so acting or
of any basis for such a claim. The Company and its Affiliates will have no
liability for the fees, expenses or other amounts payable to Xxxxxxx Xxxxx & Co.
arising out of the transactions contemplated by this Agreement or the Asset
Purchase Agreement.
2.6. Ownership Limitations.
(a) The Investor has received a copy of the Declaration of Trust and
Articles Supplementary and understands the restrictions on transfers and
ownership of the Company's shares included therein.
(b) The Investor is not (i) an "employee benefit plan" as defined in
and subject to ERISA, (ii) a "plan" as defined in and subject to Section 4975 of
the Code or (iii) an entity any portion or all of the assets of which are
deemed, pursuant to United States Department of Labor Regulation ss.2510.3-101
or otherwise pursuant to ERISA, to be, for any purpose of ERISA or Section 4975
of the Code, assets of any "employee benefit plan" or "plan" described in clause
(i) or (ii) above which invests in such entity by virtue of such investment. As
used herein, "ERISA" means the Employee Retirement Act of 1974, as amended.
4
3. Representations and Warranties of the Company.
The Company hereby represents and warrants to the Investors as follows:
3.1. Organization and Qualification.
(a) The Company has been duly organized and is validly existing as a
real estate investment trust in good standing under the laws of the State of
Maryland and is duly qualified as a foreign organization to transact business
and is in good standing in each jurisdiction in which such qualification is
required, except where the failure to be so qualified or in good standing would
not have a Material Adverse Effect (as hereinafter defined). The Company has all
requisite trust power and authority: (i) to own and operate its assets and
properties and to carry on its business as currently conducted, (ii) to enter
into this Agreement and each Additional Agreement, instrument or document to be
executed by the Company in connection herewith at the Closing, (iii) to sell,
issue and deliver the Securities hereunder and (iv) to consummate the
transactions contemplated hereby and thereby. For purposes of this Agreement,
"Material Adverse Effect" means a change or effect (or any development or fact
of which the Company has actual knowledge or has been informed in writing or of
which senior personnel have been informed that could reasonably be expected to
result in any change or effect in all cases that is particular to the Company or
its business and not the industry in which the Company operates or the financial
markets generally) that is materially adverse to the (x) business, properties,
assets, condition (financial or otherwise) or results of operations of the
Company and the Subsidiaries, taken as a whole, (y) ability of the Company and
the Subsidiaries, taken as a whole, to conduct business in the manner in which
it is currently conducted or (z) ability of the Company to consummate the
transactions contemplated hereby without material delay or impairment.
(b) Except as set forth on Schedule 3.1 or Schedule 3.14 hereto, the
Company has no subsidiaries or any other equity interests in any corporation,
partnership, trust, limited liability company, association or other entity or
person. Each of the Company's subsidiaries (the "Subsidiaries") has been duly
organized and is validly existing under the laws of its jurisdiction of
organization and is duly qualified as a foreign organization to transact
business and is in good standing in each jurisdiction in which such
qualification is required, except where the failure to be so qualified or in
good standing would not have a Material Adverse Effect. Each Subsidiary has all
requisite corporate, partnership, limited liability company or other power and
authority to own and operate its assets and properties and to carry on its
business as currently conducted.
3.2. Authorization. All board of trustee action on the part of the
Company necessary for (i) the authorization, execution and delivery of this
Agreement and each Additional Agreement, instrument and document to be executed
by the Company at the Closing in connection herewith, (ii) the authorization,
issuance, sale and delivery of the Securities (including, without limitation,
the issuance of the Underlying Class A Shares upon the exercise of the Investor
Warrants), and (iii) the performance of all obligations of the Company hereunder
and thereunder has been taken. No shareholder or other trust action is required
for any of the actions contemplated by this Agreement or any Additional
Agreement. This Agreement has been and, as of the Closing, the Articles
Supplementary, Investor Rights Agreement and Warrant Certificates will be, duly
executed and delivered by the Company and constitute valid and legally binding
obligations of the Company, enforceable in accordance with their respective
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, moratorium, reorganization or similar laws from time to time in
effect that affect creditors' rights generally, and by legal and equitable
limitations on the availability of specific remedies.
5
3.3. Capitalization. Immediately preceding the Closing, the Company's
entire authorized share capital will consist of 70,000,000 Class A Shares,
35,000,000 Class B Shares, par value $.01 per share (the "Class B Shares" and
together with the Class A Shares, the "Common Shares"), and 4,400,000 Series A
Preferred Shares, having the rights and obligations set forth in the Declaration
of Trust of the Company, as amended by the Articles Supplementary filed with the
MDAT on December 14, 1998. As of the close of business on September 30, 1998,
there were (i) 52,407,718 Class A Shares and 26,203,859 Class B Shares issued
and outstanding, and (ii) 534,773 Class A Shares duly reserved for issuance upon
the conversion of Class B Shares and 2,485,838 Class A Shares duly reserved for
issuance upon the exercise of options. All of the issued and outstanding Common
Shares have been duly authorized and validly issued, are fully paid and
nonassessable and were issued in compliance with all applicable U.S. federal and
state securities laws in all material respects. Except as set forth on Schedule
3.3, as contemplated herein and pursuant to the Plan (as defined below), since
September 30, 1998, the Company has not issued any Common Shares or any
preferred shares. Except for (i) options to purchase Class A Shares that have
been or may be granted pursuant to the Company's 1996 Share Incentive Plan (the
"Plan"), (ii) the conversion rights of the Class B Shares into Class A Shares at
a rate of 49 Class B Shares for each Class A Share, (iii) the obligation of the
Company pursuant to the Declaration of Trust to issue one Class B Share for
every two Class A Shares that are issued, subject to adjustment in the event
Class B Shares are exchanged for Class A Shares, (iv) the Investor Warrants, (v)
this Agreement and (vi) as set forth on Schedule 3.3, there are no outstanding
or authorized preemptive rights, conversion rights, options, warrants, calls,
stock appreciation rights, convertible securities or other rights or agreements
of any character obligating the Company to issue, transfer, sell or acquire any
of its share capital or any other of its securities. Except as disclosed on
Schedule 3.3 or in the Company SEC Documents (as hereinafter defined) or as
contemplated by the Investor Rights Agreement, the Company is not party to, nor
does it have any knowledge of, any agreement with respect to the voting of the
Common Shares.
3.4. Valid Issuance. The Investor Shares have been duly authorized and,
when issued in accordance with the terms hereof, will be validly issued, fully
paid and nonassessable, and the issuance of the Investor Shares, will not be
subject to preemptive or other similar rights that have not been waived. Upon
execution and delivery thereof by the Company in accordance with the terms of
this Agreement, the Investor Warrants will be exercisable for Class A Shares in
accordance with their terms. The Underlying Class A Shares have been duly
authorized and when issued, and when value has been given therefor as provided
herein and in the Warrant Certificates, the Underlying Class A Shares will be
validly issued, fully paid and nonassessable; and the issuance of the Underlying
Class A Shares is not subject to preemptive or other similar rights that have
not been waived other than the obligation of the Company pursuant to the
Declaration of Trust to issue one Class B Share for every two Class A Shares
that are issued, subject to adjustment in the event Class B Shares are exchanged
for Class A Shares. Except as set forth in the Declaration of Trust, the
Articles Supplementary, the Warrant Certificates and the Investor Rights
Agreement, upon issuance, the Investor Shares and Warrants will be free of all
liens, adverse claims, pledges, charges, proxies, voting trusts, security
interests, agreements and encumbrances of any kind whatsoever ("Liens") imposed
by or through the Company except for any Liens that may be imposed by or on
behalf of the Investors. The Company will reserve and keep available at all
times, free of preemptive rights except as otherwise set forth in this Section
3.4, a sufficient number of authorized Class A Shares to provide for the
issuance of the Underlying Class A Shares upon exercise of the Investor
Warrants.
6
3.5. Conflicting Instruments; Valid Contracts.
(a) The execution and delivery of this Agreement and each Additional
Agreement, does not, and the consummation of the transactions contemplated
hereby and thereby and compliance with the terms hereof and thereof will not (i)
conflict with or result in any violation of (a) the laws of the State of
Maryland or any other applicable statutory or regulatory requirements, except
for such conflicts or violations that would not have a Material Adverse Effect
or (b) any provision of the Company's Declaration of Trust or By-Laws, (ii)
conflict with, result in a violation or breach of, or constitute a default (or
give rise to any right of termination, revocation, cancellation, acceleration or
any other right) under any of the terms, conditions or provisions of any loan
agreement, note, bond, mortgage, indenture, deed of trust, license, lease,
contract, commitment or arrangement to which the Company is a party or by which
it is bound, or by or to which any of its properties or assets may be bound or
subject (collectively, "Company Contracts"), except for those Company Contracts
disclosed on Schedule 3.5 hereto with respect to which the Company is required
to obtain a consent or waiver from the other parties to such Company Contract
(the "Third Party Consents"), (iii) result in the creation or imposition of a
Lien on any properties or assets owned or leased and operated by the Company,
(iv) conflict with or result in a violation or breach of any judgment, order,
decree, writ, injunction, statute, law, ordinance, rule or regulation
determination or award applicable to the Company or any of its properties or
assets, (v) violate or result in the revocation or suspension of any permit held
by the Company or (vi) assuming the representations and warranties of the
Investors set forth in Section 2.6 are true, cause the Company to fail to
qualify to be taxed as a domestically-controlled, non-pension-held "real estate
investment trust" (as defined in the Code) and the Rules and Regulations
thereunder) (a "REIT") for the year ending December 31, 1998, except in the case
of clauses (ii), (iii), (iv) and (v) for such conflicts, violations, breaches,
defaults, Liens, revocations or suspensions that could not, individually or in
the aggregate, have a Material Adverse Effect.
(b) To the Company's knowledge, the Company Contracts (other than the
Investments (as hereinafter defined)) are in full force and effect and have not
been breached by the Company except for such breaches that could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. The Company has not received written notice of any breach by the
Company or by the other parties thereto of such Company Contracts that has not
been cured. All Third Party Consents have been, or as of the Closing, will have
been, obtained.
3.6. Government Consents. No consent, approval, order or authorization
of, or registration, qualification, designation, declaration or filing with, any
governmental authority on the part of the Company is required in connection with
the valid execution and delivery of this Agreement, (assuming the
representations and warranties of the Investors set forth in Section 2 are true)
the offer, sale, issuance or delivery of the Securities, or the consummation of
the transactions contemplated by this Agreement and each Additional Agreement,
except for filing of the Articles Supplementary with the MDAT and required
filings with the SEC and the American Stock Exchange.
7
3.7. SEC Filings and Memorandum. Since January 1, 1998, the Company has
filed in a timely manner all reports required to be filed by it pursuant to the
federal securities laws and the rules and regulations of the SEC promulgated
thereunder (the "Company SEC Documents"), all of which, at the time such Company
SEC Documents were filed, complied in all material respects with the
requirements of the Act or the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), as applicable, and the rules and regulations of the SEC
thereunder applicable to such Company SEC Documents. None of the Company SEC
Documents (including all financial statements included therein, and exhibits and
schedules thereto, and documents incorporated by reference therein), at the time
filed, contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The Company has not filed any report or other document with the SEC
since November 13, 1998.
3.8. Financial Information. The financial statements of the Company
included in the Company SEC Documents (i) comply as to form in all material
respects with applicable accounting requirements and the published rules and
regulations of the SEC with respect thereto, (ii) have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis throughout the periods covered thereby, (iii) fairly present (subject, in
the case of the unaudited statements, to normal, recurring audit adjustments and
the absence of footnotes) the consolidated financial position of the Company and
its subsidiaries as of the dates thereof and the consolidated results of their
operations and their cash flow statements for the periods then ended, and (iv)
are correct and complete in all material respects, and are materially consistent
with the Company's books and records, which books and records are accurate and
complete in all material respects. The pro forma financial data included in the
Company's Form 10-Q for the six months ended June 30, 1998 has been prepared in
accordance with the applicable rules and guidelines of the SEC with respect to
pro forma financial data, and the adjustments used therein are appropriate to
give effect to the transaction or circumstance referred to therein.
3.9. Litigation. Except as disclosed on Schedule 3.9 hereto or the
Company SEC Documents, there is no action, suit, arbitration, investigation or
proceeding pending or, to the knowledge of the Company, threatened against or
affecting the Company or its properties or assets that could, individually or in
the aggregate, reasonably be expected to result in a Material Adverse Effect.
8
3.10. No Violations. The Company is not in violation of any law,
statute, regulation, rule, ordinance, judgment, decree or order of, or any
restriction imposed by, any federal, state or municipal entity having
jurisdiction over it or any agency thereof in respect of the conduct of its
business or the ownership of its properties or assets that could reasonably be
expected to have a Material Adverse Effect. The Company is not in violation of
or in default under any obligation, agreement, covenant or condition contained
in its Declaration of Trust or By-laws, which violation or default could,
individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect.
3.11. Absence of Certain Changes or Events. Except as set forth in the
Company SEC Documents since December 31, 1997, the Company and the Subsidiaries
have conducted their respective businesses in the ordinary course. Except as set
forth on Schedule 3.11, since December 31, 1997, there has not been any Material
Adverse Effect.
3.12. Licenses, Permits, etc. The Company has all licenses, permits,
franchises or other governmental authorizations or approvals necessary for the
ownership or operation of its property or to the conduct of its business, which
if violated or not obtained could reasonably be expected to result in a Material
Adverse Effect. The Company has not received written notice of any potential
revocation or non-renewal of any such licenses, permits, franchises or other
governmental authorizations necessary to its business, except for revocations or
non-renewals that would not have a Material Adverse Effect.
3.13. Liabilities. Except as set forth in Schedule 3.13 hereto or the
Company SEC Documents, the Company has no liabilities or obligations of any
nature (whether absolute, accrued, contingent or otherwise) except for current
liabilities incurred in the ordinary and usual course of business since
September 30, 1998 consistent with the past practices of the Company or that
could not, individually or in the aggregate, reasonably be expected to result in
a Material Adverse Effect.
3.14. Investments. As used in this Section 3.14, "Company" means
Starwood Financial Trust and its wholly-owned subsidiaries.
(a) Except as otherwise disclosed in the Company SEC Documents or
Schedule 3.14, (i) the Company owns no real property; (ii) all of the leases
under which the Company holds or uses real property or assets as a lessee are in
full force and effect, and the Company is not in default in respect of any of
the terms or provisions of any of such leases and no claim has been asserted by
anyone adverse to the Company's rights as lessee under any of such leases, or
affecting or questioning the Company's rights to the continued possession or use
of the leased property or assets under any such leases; and (iii) the Company
owns and has good, valid and marketable title to all of the Investments (as
hereinafter defined) and all other material assets purported to be owned by it,
free and clear of any liens, adverse claims, pledges, charges, security
interests or encumbrances of any kind whatsoever.
9
(b) Schedule 3.14 hereto is a complete and accurate list of, and
specified information with respect to, all loans and other investments of the
Company in another person (the "Investments") as of November 30, 1998. Except as
set forth in Schedule 3.14, there is no monetary default, breach, violation or
event of acceleration on the part of any person (other than the Company) that is
a party thereto beyond any applicable grace period existing under any of the
Investments. The Company has not given any notice (that is still outstanding) of
any non-monetary default, breach, violation or event of acceleration and, to the
Company's knowledge, except as set forth in Schedule 3.14, there is no
non-monetary default, breach, violation or event of acceleration existing under
any of the Investments that could, individually or in the aggregate, reasonably
be expected to result in a Material Adverse Effect. The Company has not received
any written notice nor has any senior personnel of the Company been informed of
any default, breach or violation by the Company of any of the terms of any
Investment, and to the Company's knowledge, no such default, breach or violation
exists, except, in either instance, for such defaults, breaches or violations
that could not, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Effect, and no person has any right of offset
against the Company in respect of any Investment. To the Company's knowledge,
there is no monetary default or any material default, breach, violation or event
of acceleration under any loan or security ranking in priority senior to any
Investment of the Company.
(c) The Company has not made any claim, nor does it have knowledge of
any basis for a claim, that the representations and warranties of the
Contributors (as such term is defined therein) in the Contribution Agreement,
dated February 1, 1998, between the Company and Starwood Mezzanine Investors,
L.P. and Starwood Opportunity Fund IV, L.P., were not true and correct in any
material respect at the time they were made.
(d) The Company has not assumed any liabilities or responsibilities of
any third party with respect to applicable laws relating to pollution or the
discharge of materials into the environment, including common law relating to
damage to property or injury to persons and laws relating to the protection of
the environment and the health and safety of persons (the "Environmental Laws").
3.15. Registration Rights. Except as set forth in the Investor Rights
Agreement or as referenced in the Company SEC Documents or on Schedule 3.15, the
Company is not under any obligation to register any of its securities, including
securities into or for which outstanding securities may be converted or
exchanged.
3.16. Investment Company. The Company is not, and, after giving effect
to the issuance of the Securities, will not be, an "investment company" as such
term is defined in the Investment Company Act of 1940, as amended.
3.17. REIT Status. Assuming the representations and warranties of the
Investors set forth in the Ownership Waiver are true and assuming the persons
and entities listed on Exhibit B thereto do not "Beneficially Own" (as defined
therein) any interest in Starwood Opportunity Fund IV, L.P. or Starwood
Mezzanine Investors, L.P., the Company's legal organization and method of
operation enable it to satisfy the requirements for qualification as a
domestically controlled, non-pension-held REIT under the Code and the Rules and
Regulations thereunder.
10
3.18. Private Offering. None of the Company, its Affiliates or any
person acting on their or any of their Affiliates' behalf, has engaged, or will
engage, in connection with the offering of the Securities, in any communication
or other form of general solicitation or general advertising within the meaning
of Rule 502(c) under the Act. Assuming the representations and warranties of the
Investors set forth in Section 2 are true, the offer, issuance and sale of the
Securities in the manner contemplated by this Agreement are exempt from the
registration and prospectus delivery requirements of the Act, and have been
registered or qualified (or are exempt from registration and qualification)
under the registration, permit or qualification requirements of all applicable
state securities laws.
3.19. Brokerage and Finder Fees. Neither the Company nor any of its
officers, directors, general partners, agents, employees or Affiliates, has
engaged or authorized any broker or finder, to act, directly or indirectly, on
its behalf, in connection with the transactions contemplated by this Agreement,
or has consented to or acquiesced in anyone so acting on its behalf, and it
knows of no claim by any person for compensation for so acting on its behalf or
of any basis for such a claim.
3.20. Certain Transactions. Except as set forth in the SEC Documents
and except for arm's-length transactions pursuant to which the Company or any
Subsidiary makes payments in the ordinary course of business upon terms no less
favorable than the Company or any Subsidiary could obtain from third parties and
other than the grant of stock options pursuant to the Plan, none of the
officers, trustees, or employees of the Company or any Subsidiary is presently a
party to any transaction with the Company or any Subsidiary (other than for
services as officers, trustees and employees), including any agreement or other
arrangement providing for the furnishing of services to or by, providing for
rental of real or personal property to or from, or otherwise requiring payments
to or from any officer, trustee or such employee or any corporation,
partnership, trust, limited liability company or other entity in which any
officer, trustee, or employee has a substantial interest or is an officer,
director, trustee or partner.
3.21. Employees. The Company has no employees.
3.22. Powers of Attorney. The Company has not given any powers of
attorney to any third parties.
4. Conditions of the Investors' Obligations at Each Closing. The
obligation of each of the Investors to purchase the Investor Shares and the
Investor Warrants is subject to the fulfillment or waiver at or before the
Closing of each of the following conditions, any or all of which may be waived
by the Investor:
4.1. Representations and Warranties; No Material Adverse Effect. The
representations and warranties of the Company contained in Section 3 hereof
shall be true and correct in all material respects at and as of the Closing with
the same effect as though such representations and warranties had been made on
and as of the date of the Closing, except to the extent that any such
representation or warranty is made as of a specified date, in which case such
representation or warranty shall have been true and correct as of such date.
Between the date hereof and the Closing, there shall have been no Material
Adverse Effect.
4.2. Performance. The Company shall have performed and complied with
all agreements, obligations, covenants and conditions contained in this
Agreement that are required to be performed or complied with by the Company at
or before the Closing.
4.3. Asset Purchase Agreement. The transactions contemplated by the
Asset Purchase Agreement shall have been consummated.
11
4.4. Resolutions and Other Matters. The Company shall have delivered to
the Investors resolutions of the Board of Trustees of the Company authorizing
the transactions contemplated hereby, certified by the Secretary of the Company,
which certificate shall also contain additional certifications customary in
transactions such as those contemplated by this Agreement.
4.5. Articles Supplementary. The Company shall have filed the Articles
Supplementary with the MDAT, which Articles Supplementary shall be in full force
and effect without modification.
4.6. Opinion of Company Counsel. Xxxxx, Xxxxx & Xxxxx, counsel to the
Company, shall deliver opinions addressed to the Investors, dated the date of
the Closing, substantially in the forms attached as Exhibit F hereto (as to
corporate law and related matters) and Exhibit G hereto (as to REIT status and
related matters), and Xxxxxxx Xxxxx Xxxxxxx & Ingersoll, LLP, Maryland counsel
to the Company, shall deliver an opinion addressed to the Investors, dated the
date of the Closing, substantially in the form of Exhibit H hereto.
4.7. Other Agreements. The Additional Agreements shall have been
executed and delivered by the parties thereto and shall be in full force and
effect.
4.8. Consents. All required third party consents shall have been
obtained by the Company.
4.9. No Proceedings, Injunctions or Restraints. No temporary
restraining order, preliminary or permanent injunction or other order issued by
any court of competent jurisdiction or other legal restraint or prohibition
preventing the consummation of the transactions contemplated hereby shall be in
effect, nor shall any action, suit or proceeding be pending or threatened with
respect thereto; it being agreed by each of the Company and each of the
Investors, however, that it shall use its best efforts to prevent the entry of
any such injunction or other order and to appeal as promptly as possible any
injunction or other order that may be entered.
5. Conditions of the Company's Obligations at Each Closing. The
obligations of the Company are subject to the fulfillment or waiver at or before
the Closing of each of the following conditions, any or all of which may be
waived by the Company:
5.1. Representations and Warranties. The representations and warranties
of each of the Investors contained in Section 2 hereof shall be true and correct
in all material respects at and as of the Closing with the same effect as though
such representations and warranties had been made at and as of the date of the
Closing.
12
5.2. Performance. Each of the Investors shall have performed and
complied with all agreements, obligations and conditions in this Agreement that
are required to be performed or complied with by such Investor at or before the
Closing.
5.3. Opinion of Investors' Counsel. Xxxxxxxx & Xxxxxxxx LLP, counsel
for the Investors, shall deliver an opinion addressed to the Company, dated the
date of the Closing, substantially in the form attached as Exhibit I hereto, and
Xxxxxxx Xxxxx Xxxxxxx & Ingersoll, LLP, Maryland counsel to the Investors, shall
deliver an opinion addressed to the Company, dated the date of the Closing,
substantially in the form of Exhibit J hereto.
5.4. Other Agreements. The Investor Rights Agreement shall have been
executed and delivered by each of the Investors.
5.5. No Injunctions or Restraints. No temporary restraining order,
preliminary or permanent injunction or other order issued by any court of
competent jurisdiction or other legal restraint or prohibition preventing the
consummation of the transactions contemplated hereby shall be in effect, nor
shall any such order or injunction be pending or threatened with respect
thereto; it being agreed by each of the Company and each of the Investors,
however, that it shall use its best efforts to prevent the entry of any such
injunction or other order and to appeal as promptly as possible any injunction
or other order that may be entered.
6. 1933 Act Legend.
6.1. 1933 Act Legend. Each certificate representing Securities shall
bear a legend substantially in the following form:
The securities represented by this certificate have not been registered
under the United States Securities Act of 1933, as amended (the "Act"),
and may not be offered, sold or otherwise transferred, pledged or
hypothecated unless and until such securities are registered under the
Act or, except as otherwise permitted pursuant to Rule 144 under the
Act or another exemption from registration under the Act and an opinion
of counsel reasonably satisfactory to the Company is obtained to the
effect that such registration is not required.
The securities represented by this certificate are subject to
certain restrictions against transfer contained in the
Investor Rights Agreement (including Section 11.3 thereof) to
which the holder is a party, and the issuer's Declaration of
Trust, as in effect from time to time. A copy of said Investor
Rights Agreement and Declaration of Trust is available for
inspection, without charge, at the office of the issuer.
The first paragraph of the foregoing legend, shall be removed from the
certificates representing any Series A Preferred, Warrant and Underlying Class A
Shares, at the request of the holder thereof, at such time as (i) they are sold
pursuant to an effective registration statement, (ii) they become eligible for
resale pursuant to Rule 144(k) under the Act or another provision of Rule 144 of
the Act pursuant to which all such securities could be sold in a single
transaction and an opinion of counsel reasonably satisfactory to the Company is
obtained to such effect, or (iii) an opinion of counsel reasonably satisfactory
to the Company is obtained to the effect that the proposed transfer is exempt
from the Act.
13
7. Indemnification; Survival.
7.1. Indemnification.
(a) The Company shall indemnify and hold harmless each Investor and its
respective directors, officers, employees, agents, partners, affiliates,
successors and permitted assigns from and against any and all (x) liabilities,
losses or damages ("Loss") and (y) reasonable out-of-pocket expenses, including
without limitation attorneys' fees and expenses ("Expense") incurred by such
party in connection with (i) its breach or failure to perform its obligations
under this Agreement and (ii) any breach of any warranty or the inaccuracy of
any representation, or misrepresentation or material omission, made by it in
this Agreement; provided, however, that the obligation of the Company to
indemnify and hold the Investors harmless pursuant to this Section 7.1 shall be
limited to an amount equal to the Purchase Price.
(b) Each of the Investors shall indemnify and hold the Company and its
trustees, officers, employees, agents, partners, affiliates, successors and
assigns harmless from and against any and all Losses and Expenses incurred by
the Company in connection with (i) such Investor's respective breach or failure
to perform its obligations under this Agreement and (ii) any breach of any
warranty or the inaccuracy of any representation, or misrepresentation or
material omission, made by it in this Agreement; provided, however, that the
obligation of each Investor to indemnify and hold the Company harmless pursuant
to this Section 7.1 shall be limited to the payment by such Investor of an
amount equal to such Investor's applicable portion of the Purchase Price paid by
such Investor pursuant to this Agreement.
7.2. Notice of Claims. If a party believes that any of the persons
entitled to indemnification under this Section 7 has suffered or incurred any
Loss or incurred any Expense, such party shall notify the indemnifying party
promptly in writing describing such Loss or Expense, the amount thereof, if
known, and the method of computation of such Loss or Expense, all with
reasonable particularity and containing a reference to the provisions of this
Agreement, any Additional Agreement, or any certificate delivered pursuant
hereto in respect of which such Loss or Expense shall have occurred; provided,
however, that the omission by such indemnified party to give notice as provided
herein shall not relieve the indemnifying party of its indemnification
obligation under this Section 7 except to the extent that such indemnifying
party is materially damaged as a result of such failure to give notice. If any
action at law or suit in equity is instituted against a third party with respect
to which any of the persons entitled to indemnification under this Section 7
intends to claim any liability or expense as Loss or Expense under this Section
7, any such person shall promptly notify the indemnifying party of such action
or suit as specified in this Section 7.2 and in Section 7.3.
7.3. Third-Party Claims. In the event of any claim for indemnification
hereunder resulting from or in connection with any claim or legal proceeding by
a third party, the indemnified persons shall give notice thereof to the
indemnifying party not later than 20 business days prior to the time any
response to the asserted claim is required, if possible, and in any event within
15 days following the date such indemnified person has actual knowledge thereof;
provided, however, that the omission by such indemnified party to give notice as
provided therein shall not relieve the indemnifying party of its indemnification
obligation under this Section 7 except to the extent that such indemnifying
party is materially damaged as a result of such failure to give notice. In the
event of any such claim for indemnification resulting from or in connection with
a claim or legal proceeding by a third party, the indemnifying party may, at its
sole cost and expense, assume the defense thereof; provided, however, that
counsel for the indemnifying party, who shall conduct the defense of such claim
or legal proceeding, shall be reasonably satisfactory to the indemnified party;
14
and provided, further, that if the defendants in any such actions include both
the indemnified persons and the indemnifying party and the indemnified persons
shall have reasonably concluded based on a written option of counsel that there
may be legal defenses or rights available to them which have not been waived and
are in actual or potential conflict with those available to the indemnifying
party, the indemnified persons shall have the right to select one law firm
reasonably acceptable to the indemnifying party to act as separate counsel, on
behalf of such indemnified persons, at the expense of the indemnifying party.
Unless the indemnified persons are represented by separate counsel pursuant to
the second proviso of the immediately preceding sentence, if an indemnifying
party assumes the defense of any such claim of legal proceeding, such
indemnifying party shall not consent to entry of any judgment, or enter into any
settlement, that (a) is not subject to indemnification in accordance with the
provisions of this Section 7, (b) provides for injunctive or other nonmonetary
relief affecting the indemnified persons or (c) does not include as an
unconditional term thereof the giving by each claimant or plaintiff to such
indemnified persons of an unconditional release from all liability with respect
to such claim or legal proceeding, without the prior written consent of the
indemnified person (which consent, in the case of clauses (b) and (c), shall not
be unreasonably withheld); and provided, further, that unless the indemnified
persons are represented by separate counsel pursuant to the second proviso of
the immediately preceding sentence, the indemnified persons may, at their own
expense, participate in any such proceeding with the counsel of their choice
without any right of control thereof. So long as the indemnifying party is in
good faith defending such claim or proceeding, the indemnified persons shall not
compromise or settle such claim or proceeding without the prior written consent
of the indemnifying party, which consent shall not be unreasonably withheld. If
the indemnifying party does not assume the defense of any such claim or
litigation in accordance with the terms hereof, the indemnified persons may
defend against such claim or litigation in such manner as they may deem
appropriate, including, without limitation, settling such claim or litigation
(after giving prior written notice of the same to the indemnifying party) on
such terms as the indemnified persons may deem appropriate, and the indemnifying
party will promptly indemnify the indemnified persons in accordance with the
provisions of Section 7.
7.4. Effects of Closing Over Known Unsatisfied Conditions or Breached
Representations, Warranties or Covenants. Notwithstanding anything to the
contrary set forth herein, if any party elects to proceed with the Closing with
actual knowledge of any failure to be satisfied of any condition in its favor,
or the breach of any representation, warranty or covenant by any other party,
the condition that is unsatisfied or the representation, warranty or covenant
that is breached as of the Closing Date shall be deemed to be waived by such
party, and such party shall be deemed to fully release and forever discharge
such other party and the indemnified parties on account of any and all claims,
demands or charges, known or unknown, with respect to the same.
7.5. Survival of Representations and Warranties. All representation and
warranties contained in this Agreement shall survive through the close of
business on April 30, 2000 notwithstanding any due diligence, investigation or
analysis by or on behalf of the Investors.
15
7.6. Limitation on Remedies. Notwithstanding anything contained in this
Agreement or any document, instrument or agreement referred to herein and in
addition to all other limitations on remedies available to the Investors on
account of the failure of the Company to observe or perform any term or
provision hereof or thereof or the breach by the Company of any representation
or warranty contained herein or therein, by executing and delivering this
Agreement each of the Investors and the Company hereby absolutely and
irrevocably waives: (a) any right to consequential or punitive damages arising
out of or relating to the transactions contemplated hereby, and (b) any right to
offset amounts due to the Company on the one hand or the Investors on the other
hand under any other agreement between the Company or any of its Affiliates on
one hand, and the Investors or any Affiliate of the Investors on the other hand,
against any damages on account of default by any of the Company hereunder on the
one hand or the Investors on the other hand.
8. Miscellaneous.
8.1. Expenses. Each party will bear its own expenses incurred in
connection with the transactions contemplated hereby.
8.2. Successors and Assigns. This Agreement may not be assigned by an
Investor or the Company without the prior written consent of the other party
hereto; provided, however, that any Investor may assign, in whole or in part,
its rights and obligations under this Agreement to any Lazard Holder (as such
term is defined in the Investor Rights Agreement) concurrently with and to the
extent such Lazard Holder would then own some or all of the Securities. Nothing
in this Agreement, express or implied, is intended to confer upon any party,
other than the parties hereto or their respective successors and permitted
assigns, any rights, remedies, obligations, or liabilities under or by reason of
this Agreement, except as expressly provided in this Agreement.
8.3. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED, AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER DETERMINED, IN ACCORDANCE WITH AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK (AS PERMITTED BY SECTION
5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW (OR ANY SIMILAR SUCCESSOR
PROVISION)) WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW RULE THAT WOULD CAUSE THE
APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE INTERNAL LAWS OF THE
STATE OF NEW YORK TO THE RIGHTS AND DUTIES OF THE PARTIES.
8.4. Jurisdiction; Venue. For the purposes of any suit, action or
proceeding involving this Agreement or any of the Additional Agreements, each of
the Company and each Investor hereby expressly submits to the jurisdiction of
all federal and state courts sitting in the State of New York and agrees that
any order, process, notice of motion or other application to or by any such
court or a judge thereof may be served within or without such court's
jurisdiction by registered mail or by service in hand, provided that a
reasonable time for appearance is allowed, and each party agrees that such
courts shall have exclusive jurisdiction over any such suit, action or
proceeding commenced by either or both of said parties. Each of the Company and
each Investor hereby irrevocably waives any objection that it may have now or
hereafter to the laying of venue of any suit, action or proceeding arising out
of or relating to this Agreement brought in any federal or state court sitting
in the State of New York and hereby further irrevocably waives any claim that
any such suit, action or proceeding brought in any such court has been brought
in an inconvenient forum.
16
8.5. No Public Announcement. No party hereto shall, without the
approval of the other parties hereto (which may not be unreasonably withheld),
make any press release or other public announcement concerning the transactions
contemplated by this Agreement, except as and to the extent that such party
shall be so obligated by law, in which case the other parties hereto shall be
advised in advance and the parties hereto shall use their reasonable efforts to
cause a mutually agreeable release or announcement to be issued.
8.6. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, and all of which together shall be deemed
to constitute one and the same instrument.
8.7. Captions and Headings. The captions and headings used in this
Agreement are for convenience only and are not to be considered in construing or
interpreting this Agreement.
8.8. Notices. Unless otherwise provided, any notice or other
communication required or permitted to be given or effected under this Agreement
shall be in writing and shall be deemed effective upon personal or facsimile
delivery to the party to be notified or one business day after deposit with a
recognized courier service, delivery fees prepaid, and addressed to the party to
be notified at the following respective addresses, or at such other addresses as
may be designated by written notice; provided that any notice of change of
address shall be deemed effective only upon receipt:
If to the Company: Starwood Financial Trust
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxx, Chief Financial Officer
Phone: 000-000-0000
Fax: 000-000-0000
with a copy to: Mayer, Brown, & Xxxxx
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxx X. Xxxxxxx, Esq.
Phone: 000-000-0000
Fax: 000-000-0000
and Katten, Muchin & Zavis
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxx, Esq.
Phone: 000-000-0000
Fax: 000-000-0000
If to the Investors: Notice shall be sent
to the person and
address indicated on
Exhibit A hereto.
with a copy to: Lazard Freres Real Estate
Investors, L.L.C.
00 Xxxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx X. Xxxxxxxxxx, Esq.
General Counsel
Phone: 000-000-0000
Fax: 000-000-0000
17
and Xxxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Phone: 000-000-0000
Fax: 000-000-0000
8.9. Amendments and Waivers. Any term of this Agreement may be amended,
and the observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively), only
with the written consent of each of the Company and each Investor. Any amendment
or waiver effected in accordance with this Section 8.9 shall be binding upon
each holder of any Securities purchased under this Agreement at the time
outstanding, each future holder of all such Securities, and the other parties to
this Agreement.
8.10. Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provisions shall be excluded
from this Agreement and the balance of this Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
8.11. Waiver of Jury Trial. The parties hereto irrevocably waive the
right to a jury trial in connection with any legal proceeding relating to this
Agreement on any of the Additional Agreements or the enforcement of any
provision hereof or thereof.
8.12. Entire Agreement. This Agreement, the Exhibits and Schedules
hereto and the Additional Agreements constitute the entire agreement among the
parties with respect to the subject matter hereof and supersede all prior
agreements, understandings and discussions between them, and all documents
delivered by or on behalf of the Company to the Investors and its agents and
representatives, with respect to such subject matter.
The balance of this page intentionally left blank.
18
8.1. The Trust. Each of the parties acknowledges and agrees that the
name "Starwood Financial Trust" is a designation of the Company and its Trustees
(as Trustees but not personally) under the Declaration of Trust, and all persons
dealing with the Company shall look solely to the Company's assets for the
enforcement of any claims against the Company, and the Trustees, officers,
agents and security holder of the Company assume no personal liability for
obligations entered into on behalf of the Company, and their respective
individual assets shall not be subject to the claims and any person relating to
such obligations.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
STARWOOD FINANCIAL TRUST
By: /s/ Xxx Xxxxxxxx INVESTORS:
Name: Xxx Xxxxxxxx
Title: President & Chief
Executive Officer LAZARD FRERES REAL ESTATE FUND II L.P.
By: Lazard Freres Real Estate Investors
L.L.C., General Partner
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Principal
LAZARD FRERES REAL ESTATE OFFSHORE
FUND II L.P.
By: LF Real Estate Investors Company,
General Partner
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Director
LF MORTGAGE REIT
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: President
EXHIBIT A
Investors
Series A
Preferred Shares Warrants
---------------- --------
LF Mortgage REIT 4,400,000
00 Xxxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Lazard Freres Real Estate 2,975,400
Fund II. L.P.
00 Xxxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Lazard Freres Real Estate 3,024,600
Offshore Fund II. L.P.
00 Xxxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
All notices with respect to the above Investors should be sent to:
Lazard Freres Real Estate Fund II L.P.
00 Xxxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
Attn: Xxxxxx X. Xxxxxxx
SECURITIES PURCHASE AGREEMENT
Exhibits
--------
A Investors
B Articles Supplementary
C Ownership Waiver
D Warrant Certificate
E Investor Rights Agreement
F Corporate Opinion of Company Counsel
G REIT Opinion of Company Counsel
H Maryland Opinion of Company Counsel
I Corporate Opinion of Investors' Counsel
J Maryland Opinion of Investors' Counsel
