AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER, dated as of December 22, 1998 (this
"Agreement"), is between Main Place Real Estate Investment Trust, a Maryland
real estate investment trust (the "Trust"), and Main Place Funding, LLC, a
Delaware limited liability company (the "Company").
W I T N E S S E T H:
WHEREAS, the Company desires to acquire the properties and other assets,
and to assume all of the liabilities and obligations, of the Trust by means of a
merger of the Trust with and into the Company;
WHEREAS, Section 18-209 of the Delaware Limited Liability Company Act, 6
Del. C. xx.xx. 18-101 et seq. (the "Delaware Act"), and Section 8-501.1 of the
Corporations and Associations Article of the Annotated Code of the Public
General Laws of Maryland (the "Maryland Act"), authorize the merger of a
Maryland real estate investment trust with and into a Delaware limited liability
company;
WHEREAS, the Trust and the Company now desire to merge the Trust with and
into the Company (the "Merger"), following which the Company shall be the
surviving entity;
WHEREAS, the Board of Trustees of the Trust has approved this Agreement and
the Merger, and the sole shareholder of the Trust entitled to vote on the Merger
has approved of the Merger; and
WHEREAS, the member of the Company holding 99% of the Company's membership
interests has approved this Agreement and the Merger.
NOW THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
THE MERGER
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SECTION 1.01. THE MERGER.
(a) After satisfaction or, to the extent permitted hereunder, waiver of all
conditions to the Merger, as the Trust and the Company shall determine, the
Company, which shall be the surviving entity, shall file a certificate of merger
(the "Certificate of Merger")
with the Secretary of State of the State of Delaware and make all other filings
or recordings required by the Delaware Act and the Maryland Act in connection
with the Merger. The Merger shall become effective in accordance with applicable
law (the "Effective Time").
(b) At the Effective Time, the Trust shall be merged with and into the
Company, whereupon the separate existence of the Trust shall cease, and the
Company shall be the surviving entity of the Merger (the "Survivor") in
accordance with Section 18-209 of the Delaware Act and Section 8-501.1 of the
Maryland Act.
SECTION 1.02 CANCELLATION OF STOCK; CONVERSION OF INTERESTS. At the
Effective Time:
(a) Each issued and outstanding Class A Trust Share of the Trust owned by
the Company shall be canceled and cease to exist;
(b) Each issued and outstanding Class B Trust Share of the Trust will be
converted into the right to receive $10,800 in cash; and
(c) Each limited liability company interest in the Company outstanding
immediately prior to the Effective Time shall, by virtue of the Merger and
without any action on the part of the Company or the holder thereof, remain
unchanged and continue to remain outstanding as a limited liability company
interest in the Survivor.
ARTICLE II
THE SURVIVING LIMITED LIABILITY COMPANY
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SECTION 2.01. CERTIFICATE OF FORMATION AND LIMITED LIABILITY COMPANY
AGREEMENT. The certificate of formation and limited liability company agreement
of the Company in effect immediately prior to the Effective Time shall be the
certificate of formation and limited liability company agreement of the Survivor
unless and until amended in accordance with their terms and applicable law. The
name of the Survivor shall remain unchanged as Main Place Funding, LLC.
ARTICLE III
TRANSFER AND CONVEYANCE OF
ASSETS AND ASSUMPTION OF LIABILITIES
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SECTION 3.01. TRANSFER, CONVEYANCE AND ASSUMPTION. At the Effective Time
the Company shall continue in existence as the Survivor, and shall, without
further transfer or other action, succeed to and possess all of the rights,
privileges and powers of the Trust, and all of the assets and property of
whatever kind and character of the Trust shall vest in the Survivor without
further act or deed; thereafter, the Survivor shall be liable for all of the
liabilities and obligations of the Trust, and any claim or judgment against the
Trust may be
enforced against the Survivor in accordance with Section 18-209 of the Delaware
Act and Section 8-501.1 of the Maryland Act.
ARTICLE IV
CONDITIONS TO THE MERGER
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SECTION 4.01 CONDITIONS TO THE OBLIGATIONS OF EACH PARTY. The obligations
of the Company and the Trust to consummate the Merger are subject to the
satisfaction of the following conditions as of the Effective Time:
(i) no provision of any applicable law or regulation and no judgment,
injunction, order or decree shall prohibit the consummation of the Merger;
and
(ii) all actions by or in respect of or filings with any governmental
body, agency, official or authority required to permit the consummation of
the Merger shall have been obtained; and
(iii) this Agreement shall have been adopted by the appropriate action
of, or on behalf of, each of the parties in accordance with applicable law.
ARTICLE V
TERMINATION
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SECTION 5.01. TERMINATION. This Agreement may be terminated and the Merger
may be abandoned at any time prior to the Effective Time by the aforementioned
member of the Company or the Board of Trustees of the Trust.
SECTION 5.02 EFFECT OF TERMINATION. If this Agreement is terminated
pursuant to Section 5.01, then this Agreement shall become void and of no effect
with no liability on the part of any party hereto.
ARTICLE VI
MISCELLANEOUS
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SECTION 6.01 AMENDMENTS; NO WAIVERS.
(a) Any provision of this Agreement may, subject to applicable law, be
amended or waived prior to the Effective Time if, and only if, such amendment or
waiver is in writing and signed by the Company and by the Trust.
(b) No failure or delay by any party hereto in exercising any right, power
or privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power
or privilege. The rights and remedies herein provided shall be cumulative and
not exclusive of any rights or remedies provided by law.
SECTION 6.02. INTEGRATION. All prior or contemporaneous agreements,
contracts, promises, representations, and statements, if any, among the Trust
and the Company, or their representatives, are merged into this Agreement, and
this Agreement shall constitute the entire understanding between the Trust and
the Company with respect to the subject matter hereof.
SECTION 6.03. SUCCESSORS AND ASSIGNS. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns; provided, however, that no party
may assign, delegate or otherwise transfer any of its rights or obligations
under this Agreement without the consent of the other parties hereto.
SECTION 6.04. GOVERNING LAW. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Delaware,
without regard to principles of conflict of laws.
SECTION 6.05 COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be an original, but all of which, taken
together, shall constitute one and the same instrument, with the same effect as
if the signatures thereto were upon the same instrument.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK - SIGNATURE PAGE FOLLOWS)
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized representatives as of the day and
year first above written.
MAIN PLACE REAL ESTATE INVESTMENT TRUST
By: /s/ Xxxx X. Xxxx
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Name:
Title:
MAIN PLACE FUNDING, LLC
By: NATIONSBANK, N.A.
Managing Member
By: /s/ Xxxxx X. Xxxxx
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Name:
Title:
