Exhibit 10.2
AGREEMENT AND PLAN OF CONSOLIDATION
This AGREEMENT AND PLAN OF CONSOLIDATION (this "Agreement") is made and
entered into as of October 1, 1997, by and among Aegis Realty, Inc., a Maryland
Corporation ("Aegis"), Aegis Realty Operating Partnership, L.P., a Delaware
limited partnership (the "Operating Partnership"), Aegis Realty Holding
Partnership, LP, a Delaware limited partnership and a subsidiary of the
Operating Partnership ("Aegis Holding, LP"), AOP Merger Sub I, Inc., a Delaware
corporation and subsidiary of the Operating Partnership ("AOP Sub I"), AOP
Merger Sub II, Inc., a Delaware corporation and subsidiary of the Operating
Partnership ("AOP Sub II"), Summit Insured Equity L.P., a Delaware limited
partnership ("Insured I"), Summit Insured Equity II L.P., a Delaware limited
partnership ("Insured II"), Summit Preferred Equity L.P., a Delaware limited
partnership ("Summit Preferred"), Eagle Insured L.P., a Delaware limited
partnership ("Eagle"), Related Aegis, LP, a Delaware limited partnership (the
"Advisor"), Related Insured Equity Associates, Inc., a Delaware corporation
("Related GP I"), RIDC II, L.P., a Delaware limited partnership ("Related XX
XX"), Related Equity Funding, Inc., a Delaware corporation ("Related GP III"),
Partnership Monitoring Corp., a Delaware corporation, Related Federal Insured,
L.P., a Delaware limited partnership ("Related XX XX," and, together with
Related GP I, Related XX XX and Related GP III, the "Related GPs"), Related
Insured BUC$ Associates, Inc., the assignor limited partner of Insured I
("Assignor LP I"), Related Insured BUC$ Associates, Inc., the assignor limited
partner of Insured II ("Assignor XX XX"), Related BUC$ Associates, Inc., the
assignor limited partner of Summit Preferred ("Assignor LP III"), and Related FI
BUC$, Inc., the assignor limited partner of Eagle ("Assignor XX XX"). Insured I,
Insured II, Summit Preferred and Eagle Insured are sometimes hereinafter
referred to individually as a "Partnership" and collectively as the
"Partnerships." Aegis, the Operating Partnership, Aegis Holding LP, AOP Sub I
and AOP Sub II are sometimes hereinafter referred to collectively as "Aegis and
its Affiliates." Assignor LP I, Assignor XX XX, Assignor LP III and Assignor XX
XX are sometimes hereinafter referred to as the "Assignor LPs."
W I T N E S S E T H
WHEREAS, the parties hereto desire to engage in a consolidation
transaction (the "Consolidation") whereby, among other things (i)(A) 100 percent
of the BUC$ (as defined below) of (1) Insured I, (2) Insured II, (3) Summit
Preferred, and (4) Eagle (the "Assigned BUC$") will be assigned by the
respective Assignor LPs of such Partnerships to Aegis in exchange for shares of
common stock of Aegis, par value $.01 per share (the "Shares") to be delivered
to the BUC$holders (as hereinafter defined); (B) 100 percent of the Economic
Interests (as hereinafter defined) of the general partner interests of (1)
Insured I and (2) Insured II held by the Related GP's and the Advisor will be
contributed to the Operating Partnership in exchange for OP Units (as
hereinafter defined) in the Operating Partnership (the "Contributed GP Economic
Interests"); (C) 100 percent of the Economic Interests of the general partner
interests held by the Related GPs and the Advisor in Summit Preferred and Eagle
will be assigned to
Aegis in exchange for Shares (the "Assigned GP Economic Interests"); (D) Aegis
will contribute to Aegis Holding, LP (1) a .0075 percent limited partner
interest in Insured I BUC$ and (2) a .015 percent limited partner interest in
Insured II BUC$; (E) Aegis will contribute to the Operating Partnership in
exchange for OP Units in the Operating Partnership (1) the Assigned BUC$, and
(2) the Assigned GP Economic Interests, and (F) the Operating Partnership will
contribute to Aegis Holding, LP (1) a .7425 percent interest in the Insured I
BUC$ and (2) a 1.485 percent partner interest in the Insured II BUC$, as more
specifically provided herein; and (ii) all holders of BUC$ previously issued by
the Partnerships shall receive Shares in exchange for their BUC$;
WHEREAS, upon the effectiveness of the assignments and contributions set
forth in the preceding paragraph, as part of the Consolidation, (A) Insured I
will be merged with AOP Sub I, with the Partnership being the surviving entity
(the "Insured I Merger"), (B) Insured II will be merged with AOP Sub II, with
Insured II being the surviving entity (the "Insured II Merger"), (C) Summit
Preferred will be merged with and into the Operating Partnership, with the
Operating Partnership being the surviving entity (the "Summit Preferred
Merger"), and (D) Eagle will be merged with and into the Operating Partnership,
with the Operating Partnership being the surviving entity (the "Eagle Merger")
(the Insured I Merger, the Insured II Merger, the Summit Preferred Merger and
the Eagle Merger being hereinafter collectively referred to as the "Mergers",
and Insured I , Insured II and the Operating Partnership are sometimes
hereinafter collectively referred to as the "Surviving Entities");
WHEREAS, Prudential Bache Properties, Inc. ("P-B Properties"), P.B. Tax
Credit S.L.P., a Delaware limited partnership, Prudential Bache Investor
Services II, Inc., a Delaware corporation, and Related Capital Company, a New
York general partnership ("RCC"), have entered into a Purchase Agreement dated
December 19, 1996 (the "Purchase Agreement") whereby, among other things, and
subject to the terms and conditions contained therein, P-B Properties has agreed
to assign and transfer all of its general partner interests in the Partnerships
to RCC or its affiliate, the Advisor, and to withdraw from the Partnerships (the
"Withdrawal Transactions");
WHEREAS, prior to the assignment of interests as set forth in Article I
the Withdrawal Transactions have been consummated and upon P-B Properties'
withdrawal as a general partner of the Partnerships, the Partnerships were
continued without dissolution;
WHEREAS, the United States District Court for the Southern District of New
York issued on August 28, 1997 a final order (the "Final Order"), which among
other things, (i) approved a Stipulation of Settlement (the "Settlement")
entered into in connection with the litigation entitled In Re: Prudential
Securities Incorporated Limited Partnerships Litigation ("Litigation"), (ii)
approved the Withdrawal Transactions and the proposed Consolidation and (iii)
granted each of the Partnerships the right to amend their respective agreements
of limited partnership to authorize, inter alia, such Partnerships to engage in
the Withdrawal Transactions and the Consolidation (the "Partnership Agreement
Amendments");
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WHEREAS, the Partnership Agreement Amendments have been duly adopted in
accordance with the Final Order;
WHEREAS, under the agreements of limited partnership, as amended, of the
Partnerships, as amended by the Partnership Agreement Amendments, the
Partnerships are authorized to and may consummate the Consolidation without any
additional consent or other act of any person;
WHEREAS, immediately prior to the Mergers and subsequent to the assignment
of various interests in the Partnerships as set forth in Article I, certain
assets held by Eagle will be assigned to the Operating Partnership;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
ASSIGNMENT OF INTERESTS
Section I.1 Closing. Unless this Agreement shall have been
terminated and the transactions herein contemplated shall have been abandoned
pursuant to Section 7.1 hereof and subject to the satisfaction or waiver of the
conditions set forth in Article VI, the closing with respect to the
Consolidation (the "Closing") will take place on the later of the second
business day following the date on which the last to be fulfilled or waived
condition set forth in Article VI shall be fulfilled in accordance with this
Agreement, or October 1, 1997 (the "Closing Date"), at the offices of Battle
Xxxxxx, LLP, New York, New York, unless another date, time or place is agreed to
in writing by the parties hereto. Pursuant to the Consolidation, at the Closing
the parties hereto shall take such actions and engage in the transaction
identified in this Article I and Article II and take such other actions as may
be necessary or appropriate to consummate the Consolidation and the transactions
contemplated thereby. "Economic Interests" as used in this Article I shall mean,
with respect to any general partner interest in any given Partnership, a general
partner's share of the profits and losses of such Partnership and the right to
receive distributions of Partnership assets, and also includes all rights of the
holder of such general partner interest to compensation, fees, reimbursement of
expenses, allocations, distributions, adjustment to accounts and proceeds, under
the Agreement of Limited Partnership of such Partnership, as in effect at the
Closing Date.
Section I.2 Summit Preferred Assignments.
I.2.1 Assignment of Economic Interests of the General
Partner Interests in Summit Preferred held by Related
Equity Funding, Inc. to Aegis.
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Related GP III shall assign to Aegis all of the Economic Interests of the
general partner interests in Summit Preferred held by it in exchange for and
against delivery of 6,093 Shares (subject to adjustment pursuant to Section 1.17
hereof) to be issued to it by Aegis in consideration of such assignment.
I.2.2 Assignment of Economic Interests of the General
Partner Interests in Summit Preferred held by the
Advisor to Aegis.
Advisor shall assign to Aegis all of the Economic Interests of the general
partner interests of Summit Preferred held by it in exchange for and against
delivery of 3,075 Shares (subject to adjustment pursuant to Section 1.18 hereof)
to be issued to it by Aegis in consideration of such assignment.
I.2.3 Assignment of Economic Interests of the General
Partner Interests in Summit Preferred held by
Partnership Monitoring Corp. to Aegis.
Partnership Monitoring Corp. shall assign to Aegis all of the Economic
Interests of the general partner interests of Summit Preferred held by it in
exchange for and against delivery of 62 Shares (subject to adjustment pursuant
to Section 1.17 hereof) to it by Aegis be issued to in consideration of such
assignment.
I.2.4 Continuation of Related GP III as the General Partner
of Summit Preferred.
Upon the assignment by Related GP III, Advisor and Partnership Monitoring
Corp. of all of the Economic Interests of the general partner interests in
Summit Preferred, Related GP III shall continue to be the general partner of
Summit Preferred and the business of Summit Preferred shall be continued without
dissolution.
I.2.5 Assignment by Assignor Limited Partner of in Summit
Preferred BUC$ to Aegis.
Assignor LP III shall assign and transfer to Aegis, on behalf of the
Summit Preferred BUC$holders, the Summit Preferred BUC$, in exchange for and in
consideration of the issuance by Aegis to Assignor LP III of 605,916 Shares, on
behalf of the Summit Preferred BUC$holders (subject to adjustment pursuant to
Section 1.14 hereof). Promptly after the Effective Time, Assignor LP III shall
deliver such Shares to the Exchange Agent for distribution to the Summit
Preferred BUC$holders pursuant to Section 1.15 hereof. Upon the assignment in
accordance with this Section 1.2.5, Assignor LP III shall continue to be a
limited partner of Summit Preferred and the business of Summit Preferred shall
continue without dissolution.
Section I.3 Eagle Assignments.
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I.3.1 Assignment of Economic Interests of the General
Partner Interests in Eagle held by Related Federal
Insured, L.P. to Aegis.
Related XX XX shall assign to Aegis all of the Economic Interests of the
general partner interests in Eagle held by it in exchange for and against
delivery of 23,241 Shares (subject to adjustment pursuant to Section 1.17
hereof) to be issued to it by Aegis in consideration of such assignment.
I.3.2 Assignment of Economic Interests of the General
Partner Interests in Eagle held by the Advisor to
Aegis.
Advisor shall assign to Aegis all the Economic Interests of the general
partner interests of Eagle held by it in exchange for and against delivery of
11,620 Shares (subject to adjustment pursuant to Section 1.17 hereof) to be
issued to it by Aegis in consideration of such assignment.
I.3.3 Continuation of Related XX XX as the General Partner
of Eagle.
Upon the assignment by Related XX XX and Advisor of all of the Economic
Interests of the general partner interests in Eagle, Related XX XX shall
continue to be the general partner of Eagle and the business of Eagle shall be
continued without dissolution.
I.3.4 Assignment by Assignor XX XX of Eagle BUC$ to Aegis.
Assignor XX XX shall assign and transfer to Aegis, on behalf of the Eagle
BUC$holders, the Eagle BUC$, in exchange for and against delivery of 2,289,204
Shares to Assignor XX XX on behalf of such BUC$holders (subject to adjustment
pursuant to Section 1.14 hereof). Promptly after the Effective Time, Assignor XX
XX shall deliver such Shares to the Exchange Agent for distribution to the Eagle
BUC$holders pursuant to Section 1.15 hereof. Upon the assignment in accordance
with this Section 1.3.4, Assignor XX XX shall continue to be a limited partner
of Eagle and the business of Eagle shall continue without dissolution.
Section I.4 Insured I Assignments and Contributions.
I.4.1 Assignment and Contribution by Related Insured Equity
Associates, Inc. of Economic Interests of General
Partner Interests of Insured I held by it to the
Operating Partnership.
Related GP I shall assign and contribute to the Operating Partnership all
of the Economic Interests of the general partner interests in Insured I held by
it, in exchange for 20,359 OP Units (subject to adjustment pursuant to section
1.17 hereof). The term "OP Unit" as used in
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this Agreement shall have the meaning ascribed to it in the Amended and Restated
Agreement of Limited Partnership of the Operating Partnership dated as of
October 1, 1997.
I.4.2 Assignment and Contribution by Advisor of Economic
Interests of the General Partner Interests of Insured
I held by it to the Operating Partnership.
Advisor shall assign and contribute to the Operating Partnership all of
the Economic Interests of the general partner interests in Insured I held by it
in exchange for 10,179 OP Units (subject to adjustment pursuant to Section 1.18
hereof).
I.4.3 Continuation of Insured I by Related GP I.
Upon the assignment by Related GP I and Advisor, of all of the Economic
Interests of the general partner interests in Insured I, Related GP I shall
continue to be the general partner of Insured I and the business of Insured I
shall be continued without dissolution.
I.4.4 Assignment by Assignor LP I of Insured I BUC$ to
Aegis.
Assignor LP I shall assign and transfer to Aegis, on behalf of the Insured
I BUC$holders, the Insured I BUC$, in exchange for and against delivery of
4,041,207 Shares to Assignor LP I, on behalf of such BUC$holders (subject to
adjustment pursuant to Section 1.14 hereof ) by Aegis in consideration of such
assignment. Promptly after the Effective Time, Assignor LP I shall deliver such
Shares to the Exchange Agent for distribution to the Insured I BUC$holders
pursuant to Section 1.15 hereof. Upon the assignment in accordance with this
Section 1.4.4, Assignor LP I shall continue to be a limited partner of Insured I
and the business of Insured I shall continue without dissolution.
Section I.5 Insured II Assignments and Contributions.
I.5.1 Assignment and Contribution by RIDC II, L.P. of
Economic Interests of the General Partner Interests of
Insured II to the Operating Partnership.
Related XX XX shall assign and contribute to the Operating Partnership all
of the Economic Interests of the general partner interests in Insured II held by
it in exchange for 10,866 OP Units (subject to adjustment pursuant to Section
1.17 hereof).
I.5.2 Assignment and Contribution by Advisor of Economic
Interests of the General Partner Interests of Insured
II to the Operating Partnership.
Advisor shall assign and contribute to the Operating Partnership all of
the Economic Interests of the general partner interests in Insured II held by it
in exchange for 5,433
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OP Units (subject to adjustment pursuant to Section 1.18 hereof).
I.5.3 Continuation of Related XX XX as the General Partner
of Insured II.
Upon the assignment by Related XX XX and Advisor all of the Economic
Interests of the general partner interests in Insured II, Related XX XX shall
continue to be the general partner of Insured II and the business of Insured II
shall be continued without dissolution.
I.5.4 Assignment by Assignor XX XX of Insured II BUC$ to
Aegis.
Assignor XX XX shall assign and transfer, by recording such assignment and
transfer to Aegis, its records of account, on behalf of the Insured II
BUC$holders, the Insured II BUC$ to Aegis in exchange for and in consideration
of the issuance by Aegis to Assignor XX XX of 1,070,287 Shares on behalf of the
Insured II BUC$holders (subject to adjustment pursuant to Section 1.14 hereof).
Promptly after the Effective Time, Assignor XX XX shall deliver such Shares to
the Exchange Agent for distribution to the Insured II BUC$holders pursuant to
Section 1.15 hereof. Upon the assignment in accordance with this Section 1.5.4,
Assignor XX XX shall continue to be a limited partner of Insured II and the
business of Insured II shall continue without dissolution.
Section I.6 Aegis Assignments and Contributions of Economic
Interests of the General Partner Interests of Summit
Preferred and Eagle to the Operating Partnership.
Promptly upon its receipt of the Assigned GP Economic Interests assigned
to it pursuant to Sections 1.2.1, 1.2.2, 1.2.3, 1.3.1 and 1.3.2 hereof, Aegis
shall assign and contribute the Assigned GP Economic Interests to the Operating
Partnership, in exchange for and against delivery of 44,091 OP Units.
Section I.7 Aegis Assignment of BUC$ to the Operating Partnership.
Promptly upon its receipt of the BUC$ assigned to it pursuant to Sections
1.2.5, 1.3.4, 1.4.4 and 1.5.4 hereof, Aegis shall assign and contribute to the
Operating Partnership in exchange for and against delivery of 8,006,614 OP Units
in the Operating Partnership the following interests: (i) the Summit Preferred
BUC$ received by it pursuant to Section 1.2.5 hereof, (ii) the Eagle BUC$
received by it pursuant to 1.3.4 hereof, (iii) a 99.9925% interest in the
Insured I BUC$ received by it pursuant to Section 1.4.4 hereof, and (iv) a
99.985% interest in the Insured II BUC$ received by it pursuant to Section
1.5.4. hereof.
Section I.8 Aegis Assignments and Contributions to Aegis Holding,
L.P.
Promptly upon its receipt of the BUC$ assigned to it pursuant to Sections
1.4.4
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and 1.5.4, Aegis shall assign and contribute the following interests to Aegis
Holding, L.P.: (i) a .0075% interest in the Insured I BUC$ received by it
pursuant to Section 1.4.4 hereof, and (ii) a .015% interest in the Insured II
BUC$ received by it pursuant to Section 1.5.4 hereof.
Section I.9 Operating Partnership Assignments and Contributions to
Aegis Holding, LP.
Promptly upon its receipt of BUC$ assigned to it pursuant to Section 1.7,
the Operating Partnership shall assign and contribute to Aegis Holding, LP: (i)
a 0.7425% interest in the Insured I BUC$, and (ii) a 1.485% interest in the
Insured II BUC$.
Section I.10 Transferors Representations and Warranties.
Each of the parties hereto making the assignments, contributions and other
transfers provided for in Sections 1.2 through 1.9 above (the "Transfers"),
other than the Assignor LP's, hereby represents and warrants that (i) each
Transfer that it is agreeing to make pursuant to the above-described Sections
has been duly and validly authorized by all necessary corporate or partnership,
as applicable, action on its part, and (ii) that immediately prior to the
effective time of any Transfer of any interest or right required to be
transferred by it pursuant to such sections, it will own such right or interest
free and clear of all liens and encumbrances.
Section I.11 Eagle Assignment of Mortgages.
Promptly after the effectiveness of the transactions contemplated in
Sections 1.2 through 1.9 hereof, Eagle shall assign to the Operating
Partnership, all of its right, title and interest in and to the mortgages and
all other assets owned by it.
Section I.12 Sequence of Assignments and Other Transactions
Except as otherwise specifically provided above, the transfers and
transactions identified in Sections 1.2 through 1.11 above shall occur, and
shall be deemed to occur, in the sequence set forth above, with the transactions
set forth in 1.2.1 above occurring first, and the transactions specified in
Section 1.11 occurring last.
Section I.13 Further Assurances.
If at any time after the Effective Time any Surviving Entity (as defined
below) shall determine or be advised that any further assignment, conveyance or
assurance is necessary or advisable to vest, perfect or confirm of record in the
Surviving Entities, the title to any property or right or other asset
transferred pursuant to this Agreement, or otherwise to carry out the provisions
of this Agreement or the transactions contemplated hereby, the general partners,
officers, or other proper representatives of the parties hereto just prior to,
and after, the Effective Time shall execute and deliver any and all proper
deeds, assignments, rights and assurances, or other assets, instruments and
documents as may be necessary to, and do all things necessary or
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proper to, vest, perfect or convey title to such properties or rights, or other
assets, in accordance with the provisions and intent of this Agreement, and
otherwise to carry out the provisions and intents hereof.
Section I.14 No Fractional Shares.
Fractional Shares will not be issued to any holder of partnership
interests (or Economic Interests in partnership interests) in the Partnerships
or holders of BUC$ in connection with the Consolidation. Each holder of
partnership interests (or Economic Interests in partnership interests) who would
otherwise be entitled to a fractional Share under this Article I (which
entitlement will be determined by combining all such holder's allocation of
Shares from each Partnership as to which such holder is receiving Shares) will
receive one Share for each fractional share of .5 or greater otherwise due to
such holder. No Shares will be issued for fractional shares of less than .5
otherwise due to any holder.
Section I.15 Delivery of Share Certificates; Exchange of BUC$
Certificates for Share Certificates.
(1) Exchange Agent. As of the Effective Time, the respective Assignor
LPs shall deposit with the transfer agent and registrar (the "Exchange Agent"),
for the benefit of the respective BUC$holders, certificates representing the
Shares to be received by and delivered to such BUC$holders pursuant to this
Article I.
(2) Delivery of Share Certificates to Holders of Partnership Interests
(or Economic Interests in partnership interests) not Represented by BUC$.
Promptly after the Effective Time, Aegis shall require the Exchange Agent to
deliver to each holder of partnership interests in the Partnerships (or Economic
Interests in partnership interests) not represented by BUC$, a certificate
representing that number of whole Shares due such holder, determined in
accordance with Sections 1.2.1, 1.2.2, 1.2.3, 1.3.1, 1.3.2, 1.17, 1.18 and 1.14
of this Agreement.
(3) Exchange Procedures for BUC$holders. Subject to the provisions of
Section 1.16 hereof, promptly after the Effective Time, Aegis shall require the
Exchange Agent to mail to each holder of certificates representing BUC$ ("BUC$
Certificates") (each, a "BUC$holder" and collectively, the "BUC$holders"), a
form of letter of transmittal, advising such BUC$holder of the effectiveness of
the Consolidation and including the instructions for surrendering the BUC$
Certificates to the Exchange Agent in order to receive the Shares to which it is
entitled pursuant to this Agreement. Such instructions shall also specify that
delivery shall be effected, and risk of loss and title to the BUC$ shall pass
only upon, delivery of the BUC$ to the Exchange Agent, and such instructions
shall otherwise be in such form and have such other provisions as Aegis shall
reasonably specify.
Upon surrender to the Exchange Agent of such BUC$ Certificates for
cancellation in accordance with the instructions in the letter of transmittal
thereon, the Exchange Agent shall mail to such
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BUC$holder a certificate representing that number of whole Shares due such
BUC$holder determined in accordance with Article I of this Agreement. The
Exchange Agent shall accept such BUC$ upon compliance with such reasonable terms
and conditions as Aegis and the Exchange Agent may impose to effect an orderly
exchange thereof in accordance with normal exchange practices. If the Shares to
be issued to BUC$holders in connection with the Consolidation (the "BUC$holder
Consideration") (or any portion thereof) is to be delivered to any person other
than the person in whose name the BUC$ Certificates surrendered in exchange
therefor is registered, it shall be a condition to such exchange that the
certificate so surrendered shall be properly endorsed or otherwise be in proper
form for transfer and that the person requesting such exchange shall pay to the
Exchange Agent any transfer or other taxes required by reason of the payment of
such consideration to a person other than the registered holder of the
certificate surrendered, or shall establish to the satisfaction of the Exchange
Agent that such tax has been paid or is not applicable. After the Effective
Time, there shall be no further transfer on the records of the Partnerships or
its transfer agent of BUC$ and if such BUC$ Certificates are presented to any of
the Partnerships for transfer, they shall be canceled against delivery of the
BUC$holder Consideration as herein above provided. Until surrendered as
contemplated by this Section 1.15, each BUC$ Certificate shall be deemed at any
time after the Effective Time to represent only the right to receive upon such
surrender the BUC$holder Consideration payable with respect to such BUC$ as
contemplated by and provided for by this Agreement.
(4) Distributions with Respect to Unexchanged BUC$. Subject to the
provisions of Section 1.15 hereof, no distributions with respect to Shares with
a record date after the Effective Time shall be paid to any BUC$holder until the
surrender for exchange of the BUC$ Certificates in accordance with this Section
1.15. Following surrender for exchange of any such certificate in accordance
with this Section 1.15, Aegis shall pay to the holder of such certificate,
without interest, (i) at the time of such surrender, the amount of distributions
from Aegis with a record date after the Effective Time theretofore paid with
respect to the number of whole Shares payable in respect of such BUC$ hereunder
pursuant to Article I of this Agreement, and (ii) at the appropriate payment
date, the amount of distributions from Aegis with a record date after the
Effective Time, but prior to such surrender, and with a payment date subsequent
to such surrender, payable with respect to such whole Shares.
(5) No Further Ownership Rights in BUC$. The BUC$holder Consideration
paid upon the surrender for exchange of the BUC$ Certificates in accordance with
the terms of this Article I shall be deemed to have been issued and paid in full
satisfaction of all rights pertaining to the BUC$ owing to BUC$holders under
this Agreement.
(6) Termination of Fund. Any Shares that remain undistributed to
BUC$holders for 120 days after the Effective Time shall be delivered to Aegis,
upon demand, and any BUC$holders who have not theretofore complied with this
Article I shall thereafter look only to Aegis and only as general creditors
thereof for payment of their claim for the BUC$holder Consideration and any
distributions with respect to the Shares.
(7) No Liability. Neither Aegis, nor the Assignor LPs, nor the Exchange
Agent shall be liable to any person in respect of any Shares owing under this
Agreement, or
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distributions payable in respect of such Shares, to the extent the same are
delivered to a public official pursuant to any applicable abandoned property,
escheat or similar law. If any BUC$ Certificates shall not have been surrendered
prior to five years after the Effective Time (or immediately prior to such
earlier date on which any BUC$holder Consideration in respect of such
certificate would otherwise escheat to or become the property of any applicable
governmental entity), any Shares owed under this Agreement with respect to such
BUC$, or distributions payable in respect of such Shares shall, to the extent
permitted by applicable law, become the property of Aegis, free and clear of all
claims or interest of any person previously entitled thereto.
(8) Lost BUC$ Certificates. If BUC$ Certificates shall have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming such certificate to be lost, stolen or destroyed and, if required by
Aegis, the posting by such person of a bond, in such reasonable amount as Aegis
may direct, as indemnity against any claim that may be made against it with
respect to such certificate, the Exchange Agent will issue in exchange for such
lost, stolen or destroyed certificate the applicable BUC$holder Consideration,
to which the holder thereof is entitled pursuant to this Article I and any
dividends or other distributions with respect to Shares to which the holder
thereof is entitled pursuant to this Article I.
(9) Transfer Books. At the Effective Time, the transfer books of the
Partnerships shall be closed with respect to BUC$ and there shall be no further
registration of transfers of BUC$ thereafter on the records of the Partnerships.
Section I.16 Aegis' Option to Not Require Delivery of BUC$
Certificates by BUC$holders in Order to Receive
Shares.
Anything in this Agreement to the contrary notwithstanding, Aegis shall
have the right, in its sole and absolute discretion, to waive the requirements
in Sections 1.15(c) and (d) above (with respect to all, or any, of the
Partnerships, in its discretion) relating to the delivery of BUC$ Certificates
and other items by the BUC$holders to the Exchange Agent, by written notice to
the Exchange Agent of the same (the "Notice"). In the event of such Notice the
Exchange Agent shall promptly fulfill its obligations and duties under Section
1.15 hereof, as if all BUC$holders had fulfilled their obligations under Section
1.15(c), and fulfilled all obligations necessary for such BUC$holders to receive
the BUC$holder Consideration, at the time of receipt of the Notice by the
Exchange Agent.
Section I.17 Shares issued to Related General Partners to equal
0.75% of all Shares outstanding after the
Consolidation.
Anything in this Agreement to the contrary notwithstanding, the aggregate
number of Shares to be issued to (i) Related GP I or its successor pursuant to
the Exchange Rights Agreement (as hereinafter defined), assuming Related GP I or
its successor fully exercises its right to exchange the OP Units received by it
pursuant to Section 1.4.1 hereof for Shares,
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(ii) Related XX XX or its successor, pursuant to the Exchange Rights Agreement,
assuming Related XX XX or its successor fully exercises its right to exchange
the OP Units received by it pursuant to Section 1.5.1 hereof, (iii) Related GP
III, pursuant to Section 1.2.1, (iv) Related XX XX pursuant to Section 1.3.1
hereof, and (v) Partnership Monitoring Corp., pursuant to Section 1.2.3 hereof,
shall be adjusted to equal 0.75% of the aggregate number of Shares to be issued
pursuant to this Article I (the "Article I Shares"), or if not mechanically
possible, such number of whole Shares as is closest to equaling such 0.75%. In
the event the number of Shares to be issued to the Related GPs and Partnership
Monitoring Corp. as a group exceeds or is less than 0.75% of the Article I
Shares, Aegis shall adjust downward or upward the number of Shares, or OP Units,
as the case may be, to be issued pursuant to Sections 1.2.1, 1.2.3, 1.3.1, 1.4.1
and 1.5.1 by the least number of Shares, or OP Units, as the case may be, as is
necessary to satisfy the .0.75% requirement, such that the Related GPs and
Partnership Monitoring Corp. share as equally as possible (based upon their
respective eventual percentages of ownership of Shares in Aegis, assuming the
exchange for Shares of all OP Units issued to Related GP I and Related XX XX,
respectively, pursuant to 1.4.1 and 1.5.1, respectively) in any such adjustment.
For purposes of this Article I, Exchange Rights Agreement means the Exchange
Rights Agreement dated as of October 1, 1997, by and among Aegis, the Operating
Partnership, and the limited partners of the Operating Partnership (the
"Exchange Rights Agreement").
Section I.18 Shares to be issued to Advisor to equal 0.37% of all
Shares outstanding after the Consolidation.
Anything in this Agreement to the contrary notwithstanding, the aggregate
number of Shares to be issued to the Advisor pursuant to Sections 1.2.2, 1.3.2,
1.4.2 and 1.5.2 (assuming the Advisor or its successor fully exercises its right
under the Exchange Rights Agreement to exchange the OP Units received by it
pursuant to Sections 1.4.2 and 1.5.2 hereof for Shares) shall be adjusted upward
or downward to equal 0.37% of the Article I Shares, or if not mechanically
possible, such number of whole Shares as comes closest to equaling such 0.37%.
ARTICLE II
THE CONSOLIDATION
Section II.1 The Consolidation.
Subject to the terms and conditions of this Agreement, promptly
after the effectiveness of the transfers and assignments of partnership
interests (and Economic Interests of partnership interests) and other
transactions contemplated by Article I, (i) Insured I shall be merged with AOP
Sub I, with Insured I being the surviving entity (the "Insured I Merger"), (ii)
Insured II shall be merged with AOP Sub II, with Insured II being the surviving
entity (the "Insured II Merger"), (iii) Summit Preferred shall be merged with
and into the Operating Partnership, with the Operating Partnership being the
surviving entity (the "Summit Preferred Merger"), and (iv) Eagle shall be merged
with and into the Operating Partnership, with the Operating Partnership being
the surviving entity (the "Eagle Merger"), in accordance with the
12
Delaware Revised Uniform Limited Partnership Act ("DRULPA") and the General
Corporation Law of the State of Delaware (the "DGCL"), as applicable, and the
separate existence of Summit Preferred, Eagle, AOP Sub I and AOP Sub II shall
cease and the Surviving Entities (as defined below) shall continue as the
surviving entities under the laws of the State of Delaware with all the rights,
privileges, immunities and powers, and subject to all the duties and
liabilities, of limited partnerships formed under the DRULPA.
Section II.2 Effective Time. The Surviving Entities will file with
the Secretary of State of the State of Delaware (the "Delaware Secretary of
State") on the Closing Date (or on such other date as the parties hereto may
agree) certificates of merger executed in accordance with the relevant
provisions of the DRULPA and DGCL, as applicable, and make all other filings or
recordings required under the DRULPA and DGCL in connection with the Mergers.
The Mergers shall become effective upon the filings of the certificates of
merger with the Delaware Secretary of State, or at such later time as is
specified in the certificates of merger as determined by the Surviving Entities
in their discretion (the "Effective Time"), which time may be changed by the
parties executing such certificate in their discretion, without amendment to
this Agreement, or any other consent, by filing certificates of amendment to
such certificates of merger with the Delaware Secretary of State. This Agreement
shall constitute the agreement of merger of the relevant parties for purposes of
DRULPA and DGCL.
Section II.3 Certificates of Limited Partnership of the Surviving
Entities.
(1) Insured I Merger. The Certificate of Limited Partnership of Insured
I, as in effect immediately prior to the Effective Time, shall be the
Certificate of Limited Partnership of the Surviving Entity in the Insured I
Merger.
(2) Insured II Merger. The Certificate of Limited Partnership of Insured
II, as in effect immediately prior to the Effective Time, shall be the
Certificate of Limited Partnership of the Surviving Entity in the Insured II
Merger.
(3) Summit Preferred Merger. The Certificate of Limited Partnership of
the Operating Partnership, as in effect immediately prior to the Effective Time,
shall be the Certificate of Limited Partnership of the Surviving Entity in the
Summit Preferred Merger.
(4) Eagle Merger. The Certificate of Limited Partnership of the
Operating Partnership, as in effect immediately prior to the Effective Time,
shall be the Certificate of Limited Partnership of the Surviving Entity in the
Eagle Merger. Section II.4 Agreements of Limited Partnership of Surviving
Entities.
(1) Insured I Merger. The Partnership Agreement of Insured I, as in
effect immediately prior to the Effective Time, shall be the Partnership
Agreement of the Surviving Entity in the Insured I Merger.
(2) Insured II Merger. The Partnership Agreement of Insured II, as in
effect
13
immediately prior to the Effective Time, shall be the Partnership Agreement of
the Surviving Entity in the Insured II Merger.
(3) Summit Preferred Merger. The Partnership Agreement of the Operating
Partnership dated October 1, 1997, as in effect immediately prior to the
Effective Time, shall be the Partnership Agreement of the Surviving Entity in
the Summit Preferred Merger.
(4) Eagle Merger. The Partnership Agreement of the Operating Partnership
dated October 1, 1997, as in effect immediately prior to the Effective Time
shall be the Partnership Agreement of the Surviving Entity in the Eagle Merger.
Section II.5 General Partners of the Surviving Entities.
(1) Insured I Merger. The Operating Partnership shall be the general
partner of the Surviving Entity in the Insured I Merger.
(2) Insured II Merger. The Operating Partnership shall be the general
partner of the Surviving Entity in the Insured II Merger.
(3) Summit Preferred Merger. The general partner of the Operating
Partnership at the Effective Time shall be the general partner of the Surviving
Entity in the Summit Preferred Merger.
(4) Eagle Merger. The general partner of the Operating Partnership at
the Effective Time shall be the general partner of the Surviving Entity in the
Eagle Merger.
Section II.6 Cancellation of General and Limited Partner Interests
in Insured I.
(1) Cancellation of General Partner Interests held by Related GP I. The
general partner interests of Insured I held by Related GP I shall, by virtue of
the Insured I Merger and without any action on the part of any person, be
canceled.
(2) Cancellation of General Partner Interests Held by the Advisor. The
general partner interests of Insured I held by the Advisor shall, by virtue of
the Insured I Merger and without any action on the part of any person, be
canceled.
(3) Cancellation of Insured I BUC$ and Underlying Limited Partner
Interests relating to Insured I BUC$. The Insured I BUC$ (as defined in the
agreement of limited partnership of Insured I, as amended) held by the Operating
Partnership and Aegis Holding, L.P. and the underlying limited partner interests
in Insured I held by Assignor LP I relating to the Insured I BUC$, outstanding
immediately before the Effective Time, shall, by virtue of the Insured I Merger
and without any action on the part of any person, be canceled.
14
Section II.7 Conversion of Shares of AOP Sub I.
(1) Each share of Common Stock, par value $.01 per share, of AOP Sub I
held by the Operating Partnership shall, by virtue of the Insured I Merger and
without any action on the part of any person, be converted into a .01% general
partner interest in Insured I, the Surviving Entity of the Insured I Merger. At
the Effective Time the Operating Partnership will be entitled to receive a
99.25% general partner interest in Insured I, the Surviving Entity in the
Insured I Merger and the Operating Partnership shall be the sole general partner
of Insured I, the Surviving Entity in the Insured I Merger and the business of
Insured I shall continue without dissolution.
(2) Each share of Common Stock, par value $.01 per share, of AOP Sub I
held by Aegis Holding, LP shall, by virtue of the Insured I Merger and without
any action on the part of any person, be converted into a .01% limited partner
interest in Insured I. At the Effective Time Aegis Holding LP will be entitled
to receive a .75% limited partner interest in Insured I, the Surviving Entity in
the Insured I Merger. Aegis Holding, LP shall be the sole limited partner of
Insured I, the Surviving Entity in the Insured I Merger and the business of
Insured I shall continue without dissolution.
Section II.8 Cancellation of General and Limited Partner Interests
in Insured II.
(1) Cancellation of General Partner Interests held Related XX XX. The
general partner interests of Insured II held by Related XX XX, shall, by virtue
of the Insured II Merger and without any action on the part of any person, be
canceled.
(2) Cancellation of General Partner Interests Held by the Advisor. The
general partner interests of Insured II held by the Advisor shall, by virtue of
the Insured II Merger and without any action on the part of any person, be
canceled.
(3) Cancellation of Insured II BUC$ and Underlying Limited Partner
Interests Relating to Insured II BUC$. The Insured II BUC$ (as defined in the
agreement of limited partnership of Insured II, as amended) held by the
Operating Partnership and Aegis Holding, LP, and the underlying limited partner
interests in Insured II held by Assignor XX XX relating to Insured II BUC$,
outstanding immediately before the Effective Time, shall, by virtue of the
Insured II Merger and without any action on the part of any person, be canceled.
Section II.9 Conversion of Shares of AOP Sub II.
(1) Each share of Common Stock, par value $.01 per share, of AOP Sub II
held by the Operating Partnership shall, by virtue of the Insured II Merger and
without any action on the part of any person, be converted into a .01% general
partner interest in Insured II. At the Effective Time the Operating Partnership
will be entitled to receive a 98.50% general partner interest in Insured II, the
Surviving Entity in the Insured II Merger. The Operating Partnership shall be
the sole general partner of Insured II and the business of Insured II shall
continue without
15
dissolution.
(2) Each share of Common Stock, par value $.01 per share, of AOP Sub II
held by Aegis Holding, LP shall, by virtue of the Insured II Merger and without
any action on the part of any person, be converted into a .01% limited partner
interest in Insured II. At the Effective Time Aegis Holding LP will be entitled
to receive a 1.5% limited partner interest in Insured II the Surviving Entity in
the Insured II Merger. Aegis Holding, L.P. shall be the sole limited partner of
Insured II and the business of Insured II shall continue without dissolution.
Section II.10 Cancellation of General and Limited Partner Interests
in Summit Preferred.
(1) Cancellation of General Partner Interests held by Related GP III.
The general partner's interests of Summit Preferred held by Related GP III,
shall, by virtue of the Summit Preferred Merger and without any action on the
part of any person, be canceled.
(2) Cancellation of General Partner Interests Held by the Advisor The
general partner interests of Summit Preferred held by the Advisor shall, by
virtue of the Summit Preferred Merger and without any action on the part of any
person, be canceled.
(3) Cancellation of General Partner Interests held by Partnership
Monitoring Corp. The general partner interests of Summit Preferred held by
Partnership Monitoring Corp. shall, by virtue of the Summit Preferred Merger and
without any action on the part of any person, be canceled.
(4) Cancellation of Summit Preferred BUC$ and Underlying Limited Partner
Interests Relating to Summit Preferred BUC$. The Summit Preferred BUC$ (as
defined in the agreement of limited partnership of Summit Preferred, as amended)
held by the Operating Partnership and Aegis Holding, LP and the underlying
limited partner interests of Summit Preferred held by Assignor LP III relating
to the Summit Preferred BUC$, outstanding immediately before the Effective Time,
shall, by virtue of the Summit Preferred Merger and without any action on the
part of any person, be canceled.
Section II.11 Cancellation of General and Limited Partner Interests
in Eagle.
(1) Cancellation of General Partner Interests held by Related XX XX. The
general partner's interests of Eagle held by Related XX XX shall, by virtue of
the Eagle Merger and without any action on the part of any person, be canceled.
(2) Cancellation of General Partner Interests Held by the Advisor. The
general partner interests of Eagle held by the Advisor shall, by virtue of the
Eagle Merger and without any action on the part of any person, be canceled.
16
(3) Cancellation of Eagle BUC$ and Underlying Limited Partner Interests
Relating to Eagle BUC$. The Eagle BUC$ (as defined in the agreement of limited
partnership of Eagle, as amended) held by the Operating Partnership and Aegis
Holding, LP and the underlying limited partner interests of Eagle held by
Assignor XX XX relating to the Eagle BUC$, outstanding immediately before the
Effective Time, shall, by virtue of the Eagle Merger and without any action on
the part of any person, be canceled.
Section II.12 Repurchase of Shares of Aegis Outstanding Prior to the
Effective Time.
Promptly after the Effective Time, Aegis shall repurchase from RCC, and
RCC shall sell to Aegis, the 1,000 shares of Aegis held by RCC, constituting all
the issued and outstanding shares of Aegis outstanding prior to the Effective
Time, for a purchase price of $1.00 per share, the original consideration paid
for such shares. Promptly upon such repurchase, Aegis shall cause such shares to
be canceled.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PARTNERSHIPS
Section III.1 Insured I hereby represents and warrants to Aegis as
follows:
(1) Organization and Good Standing. Insured I is a limited partnership,
duly formed and validly existing as a limited partnership in good standing under
the laws of the State of Delaware. Insured I has the requisite partnership power
and authority to conduct its business in the manner and in the jurisdictions
where it is now conducted. Insured I is qualified to do business and is in good
standing in each jurisdiction in which the failure to be so qualified would have
a Material Adverse Effect.
(2) Authority; Power. The execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby have been duly and
validly authorized by all necessary partnership action on the part of Insured I.
Insured I has the requisite partnership power and authority to enter into,
deliver and, perform this Agreement and any other agreements and instruments
contemplated hereby. This Agreement constitutes a legal, valid and binding
obligation of Insured I enforceable against it in accordance with its terms,
except as such enforceability may be limited by (i) bankruptcy, reorganization,
insolvency, moratorium or other similar laws affecting creditor's rights
generally, (ii) the power of a court to grant specific performance or any other
remedy and (iii) the application of general principles of equity.
(3) Consents and Approvals; No Violation.
(1) To the knowledge of Insured I, other than the Final Order, no
consent, waiver, approval or authorization of, or filing, registration or
qualification
17
with, any governmental or regulatory authority, which if not made or
obtained would have a Material Adverse Effect or would materially
adversely affect Insured I's ability to perform its obligations under this
Agreement, is required to be made or obtained by Insured I in connection
with the execution, delivery and performance of this Agreement; and
(2) None of the execution, delivery or, except as contemplated by
this Agreement, performance of this Agreement by Insured I does or will,
with or without the giving of notice, lapse of time or both, result in any
violation of or conflict with or constitute a default under any term or
provision of the certificate of limited partnership or agreement of
limited partnership, as amended, of Insured I or, to the knowledge of
Insured I, any judgment, decree, order, law, statute, injunction, rule,
regulation or governmental license or permit applicable to Insured I;
result in the creation of any lien upon the partnership interests of
Insured I or Insured I BUC$; or constitute a default under, or result in
the termination, acceleration, amendment or modification of, any material
contract, agreement, arrangement, commitment or plan to which Insured I is
a party, or by which Insured I may be subject or bound, which, in any such
case, would have a Material Adverse Effect.
(4) No Options. Except as contemplated by this Agreement, Insured I is
not a party to any rights, options, subscriptions or other agreements of any
kind, to purchase or to acquire, receive or be issued any interest in any
partnership interest in Insured I or Insured I BUC$.
(5) Litigation. Except as set forth in the Solicitation Statement dated
June 18, 1997 or the 1996 Form 10-K or Form 10-Q of Insured I for the quarter
ended June 30, 1997:
(1) there are no claims, actions, suits, proceedings or
investigations pending or, to the knowledge of Insured I, threatened, in any
court or before any governmental agency or instrumentality, or before any
arbitrator, by or against or affecting or relating to Insured I, which, if
adversely determined, would have a Material Adverse Effect or which would (i)
restrain or enjoin the consummation of the transactions contemplated by this
Agreement, (ii) declare unlawful the transactions or events contemplated by this
Agreement, or (iii) cause any of such transactions to be rescinded; and
(2) there are no judgments, injunctions, orders or other judicial
or administrative mandates outstanding against or affecting Insured I which
would materially hinder or delay the consummation of the transactions
contemplated by this Agreement or which would have a Material Adverse Effect.
(6) Compliance with Laws. To the knowledge of Insured I, it is in
compliance in all material respects with all laws, governmental rules and
ordinances of the federal, state and local authorities having jurisdiction over
and except where the failure to so comply would not
18
have a Material Adverse Effect.
(7) Conversion of BUC$. No Insured I BUC$holder has exercised its right,
under the Partnership Agreement of Insured I, as amended, to convert its Insured
I BUC$ into limited partnership interests in Insured I.
(8) Insured I has not, since June 18, 1997, suffered a Material Adverse
Effect.
(9) Material Adverse Effect. As used in this Section 3.1 "Material
Adverse Effect" shall mean any material adverse change in the business, assets
or financial condition of Insured I which has a material adverse effect on the
income reasonably expected to be generated by Insured I from and after the
Closing Date or the economic value thereof.
Section III.2 Insured II hereby represents and warrants to Aegis as
follows:
(1) Organization and Good Standing. Insured II is a limited partnership,
duly formed and validly existing as a limited partnership in good standing under
the laws of the State of Delaware. Insured II has the requisite partnership
power and authority to conduct its business in the manner and in the
jurisdictions where it is now conducted. Insured II is qualified to do business
and is in good standing in each jurisdiction in which the failure to be so
qualified would have a Material Adverse Effect.
(2) Authority; Power. The execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby have been duly and
validly authorized by all necessary partnership action on the part of Insured
II. Insured II has the requisite partnership power and authority to enter into,
deliver and, perform this Agreement and any other agreements and instruments
contemplated hereby. This Agreement constitutes a legal, valid and binding
obligation of Insured II enforceable against it in accordance with its terms,
except as such enforceability may be limited by (i) bankruptcy, reorganization,
insolvency, moratorium or other similar laws affecting creditor's rights
generally, (ii) the power of a court to grant specific performance or any other
remedy and (iii) the application of general principles of equity.
(3) Consents and Approvals; No Violation.
(1) To the knowledge of Insured II, other than the Final Order, no
consent, waiver, approval or authorization of, or filing, registration or
qualification with, any governmental or regulatory authority, which if not
made or obtained would have a Material Adverse Effect or would materially
adversely affect Insured II's ability to perform its obligations under
this Agreement, is required to be made or obtained by Insured II in
connection with the execution, delivery and performance of this Agreement;
and
(2) None of the execution, delivery or, except as contemplated by
this
19
Agreement, performance of this Agreement by Insured II does or will, with
or without the giving of notice, lapse of time or both, result in any
violation of or conflict with or constitute a default under any term or
provision of the certificate of limited partnership or agreement of
limited partnership, as amended, of Insured II or, to the knowledge of
Insured III, any judgment, decree, order, law, statute, injunction, rule,
regulation or governmental license or permit applicable to Insured II;
result in the creation of any lien upon the partnership interests of
Insured II or Insured II BUC$; or constitute a default under, or result in
the termination, acceleration, amendment or modification of, any material
contract, agreement, arrangement, commitment or plan to which Insured II
is a party, or by which Insured II may be subject or bound, which, in any
such case, would have a Material Adverse Effect.
(4) No Options. Except as contemplated by this Agreement, Insured II is
not a party to any rights, options, subscriptions or other agreements of any
kind, to purchase or to acquire, receive or be issued any interest in any
partnership interest in Insured II or Insured II BUC$.
(5) Litigation. Except as set forth in the Solicitation Statement dated
June 18, 1997 or the 1996 Form 10-K or Form 10-Q of Insured II for the quarter
ended June 30, 1997:
(1) there are no claims, actions, suits, proceedings or
investigations pending or, to the knowledge of Insured II, threatened, in
any court or before any governmental agency or instrumentality, or before
any arbitrator, by or against or affecting or relating to Insured II,
which, if adversely determined, would have a Material Adverse Effect or
which would (i) restrain or enjoin the consummation of the transactions
contemplated by this Agreement, (ii) declare unlawful the transactions or
events contemplated by this Agreement, or (iii) cause any of such
transactions to be rescinded; and
(2) there are no judgments, injunctions, orders or other judicial
or administrative mandates outstanding against or affecting Insured II
which would materially hinder or delay the consummation of the
transactions contemplated by this Agreement or which would have a Material
Adverse Effect.
(6) Compliance with Laws. To the knowledge of Insured II, it is in
compliance in all material respects with all laws, governmental rules and
ordinances of the federal, state and local authorities having jurisdiction over
and except where the failure to so comply would not have a Material Adverse
Effect.
(7) Conversion of BUC$. No Insured II BUC$holder has exercised its
right, under the Agreement of Limited Partnership of Insured II, as amended, to
convert its Insured II BUC$ into limited partnership interests in Insured II.
(8) Insured II has not, since June 18, 1997, suffered a Material Adverse
Effect.
20
(9) Material Adverse Effect. As used in this Section 3.2 "Material
Adverse Effect" shall mean any material adverse change in the business, assets
or financial condition of Insured II which has a material adverse effect on the
income reasonably expected to be generated by Insured II from and after the
Closing Date or the economic value thereof.
Section III.3 Summit Preferred hereby represents and warrants to
Aegis as follows:
(1) Organization and Good Standing. Summit Preferred is a limited
partnership, duly formed and validly existing as a limited partnership in good
standing under the laws of the State of Delaware. Summit Preferred has the
requisite partnership power and authority to conduct its business in the manner
and in the jurisdictions where it is now conducted. Summit Preferred is
qualified to do business and is in good standing in each jurisdiction in which
the failure to be so qualified would have a Material Adverse Effect.
(2) Authority; Power. The execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby have been duly and
validly authorized by all necessary partnership action on the part of Summit
Preferred. Summit Preferred has the requisite partnership power and authority to
enter into, deliver and, perform this Agreement and any other agreements and
instruments contemplated hereby. This Agreement constitutes a legal, valid and
binding obligation of Summit Preferred enforceable against it in accordance with
its terms, except as such enforceability may be limited by (i) bankruptcy,
reorganization, insolvency, moratorium or other similar laws affecting
creditor's rights generally, (ii) the power of a court to grant specific
performance or any other remedy and (iii) the application of general principles
of equity.
(3) Consents and Approvals; No Violation.
(1) To the knowledge of Summit Preferred, other than the Final
Order, no consent, waiver, approval or authorization of, or filing,
registration or qualification with, any governmental or regulatory
authority, which if not made or obtained would have a Material Adverse
Effect or would materially adversely affect Summit Preferred's ability to
perform its obligations under this Agreement, is required to be made or
obtained by Summit Preferred in connection with the execution, delivery
and performance of this Agreement; and
(2) None of the execution, delivery or, except as contemplated by
this Agreement, performance of this Agreement by Summit Preferred does or
will, with or without the giving of notice, lapse of time or both, result
in any violation of or conflict with or constitute a default under any
term or provision of the certificate of limited partnership or agreement
of limited partnership, as amended, of Summit Preferred or, to the
knowledge of Summit Preferred, any judgment, decree, order, law, statute,
injunction, rule, regulation or governmental license or permit applicable
to Summit Preferred; result in the creation of any lien upon the
21
partnership interests of Summit Preferred or Summit Preferred BUC$; or
constitute a default under, or result in the termination, acceleration,
amendment or modification of, any material contract, agreement,
arrangement, commitment or plan to which Summit Preferred is a party, or
by which Summit Preferred may be subject or bound, which, in any such
case, would have a Material Adverse Effect.
(4) No Options. Except as contemplated by this Agreement, Summit
Preferred is not a party to any rights, options, subscriptions or other
agreements of any kind, to purchase or to acquire, receive or be issued any
interest in any partnership interest in Summit Preferred or Summit Preferred
BUC$.
(5) Litigation. Except as set forth in the Solicitation Statement dated
June 18, 1997 or the 1996 Form 10-K or Form 10-Q of Summit Preferred for the
quarter ended June 30, 1997:
(1) there are no claims, actions, suits, proceedings or
investigations pending or, to the knowledge of Summit Preferred,
threatened, in any court or before any governmental agency or
instrumentality, or before any arbitrator, by or against or affecting or
relating to Summit Preferred, which, if adversely determined, would have a
Material Adverse Effect or which would (i) restrain or enjoin the
consummation of the transactions contemplated by this Agreement, (ii)
declare unlawful the transactions or events contemplated by this
Agreement, or (iii) cause any of such transactions to be rescinded; and
(2) there are no judgments, injunctions, orders or other judicial
or administrative mandates outstanding against or affecting Summit
Preferred which would materially hinder or delay the consummation of the
transactions contemplated by this Agreement or which would have a Material
Adverse Effect.
(6) Compliance with Laws. To the knowledge of Summit Preferred, it is in
compliance in all material respects with all laws, governmental rules and
ordinances of the federal, state and local authorities having jurisdiction over
and except where the failure to so comply would not have a Material Adverse
Effect.
(7) Conversion of BUC$. No Summit Preferred BUC$holder has exercised its
right, under the Partnership Agreement of Summit Preferred, as amended, to
convert its Summit Preferred BUC$ into limited partnership interests in Summit
Preferred.
(8) Summit Preferred has not, since June 18, 1997, suffered a Material
Adverse Effect.
(9) Material Adverse Effect. As used in this Section 3.3 "Material
Adverse Effect" shall mean any material adverse change in the business, assets
or financial condition of Summit Preferred which has a material adverse effect
on the income reasonably expected to be
22
generated by Summit Preferred from and after the Closing Date or the economic
value thereof.
Section III.4 Eagle hereby represents and warrants to Aegis as
follows:
(1) Organization and Good Standing. Eagle is a limited partnership, duly
formed and validly existing as a limited partnership in good standing under the
laws of the State of Delaware. Eagle has the requisite partnership power and
authority to conduct its business in the manner and in the jurisdictions where
it is now conducted. Eagle is qualified to do business and is in good standing
in each jurisdiction in which the failure to be so qualified would have a
Material Adverse Effect.
(2) Authority; Power. The execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby have been duly and
validly authorized by all necessary partnership action on the part of Eagle.
Eagle has the requisite partnership power and authority to enter into, deliver
and, perform this Agreement and any other agreements and instruments
contemplated hereby. This Agreement constitutes a legal, valid and binding
obligation of Eagle enforceable against it in accordance with its terms, except
as such enforceability may be limited by (i) bankruptcy, reorganization,
insolvency, moratorium or other similar laws affecting creditor's rights
generally, (ii) the power of a court to grant specific performance or any other
remedy and (iii) the application of general principles of equity.
(3) Consents and Approvals; No Violation.
(1) To the knowledge of Eagle, other than the Final Order, no
consent, waiver, approval or authorization of, or filing, registration or
qualification with, any governmental or regulatory authority, which if not
made or obtained would have a Material Adverse Effect or would materially
adversely affect Eagle's ability to perform its obligations under this
Agreement, is required to be made or obtained by Eagle in connection with
the execution, delivery and performance of this Agreement; and
(2) None of the execution, delivery or, except as contemplated by
this Agreement, performance of this Agreement by Eagle does or will, with
or without the giving of notice, lapse of time or both, result in any
violation of or conflict with or constitute a default under any term or
provision of the certificate of limited partnership or agreement of
limited partnership, as amended, of Eagle or, to the knowledge of Eagle,
any judgment, decree, order, law, statute, injunction, rule, regulation or
governmental license or permit applicable to Eagle; result in the creation
of any lien upon the partnership interests of Eagle or Eagle BUC$; or
constitute a default under, or result in the termination, acceleration,
amendment or modification of, any material contract, agreement,
arrangement, commitment or plan to which Eagle is a party, or by which
Eagle may be subject or bound, which, in any such case, would have a
Material Adverse Effect.
23
(4) No Options. Except as contemplated by this Agreement, Eagle is not a
party to any rights, options, subscriptions or other agreements of any kind, to
purchase or to acquire, receive or be issued any interest in any partnership
interest in Eagle or Eagle BUC$.
(5) Litigation. Except as set forth in the Solicitation Statement dated
June 18, 1997 or the 1996 Form 10-K or Form 10-Q of Eagle for the quarter ended
June 30, 1997:
(1) there are no claims, actions, suits, proceedings or
investigations pending or, to the knowledge of Eagle, threatened, in any
court or before any governmental agency or instrumentality, or before any
arbitrator, by or against or affecting or relating to Eagle, which, if
adversely determined, would have a Material Adverse Effect or which would
(i) restrain or enjoin the consummation of the transactions contemplated
by this Agreement, (ii) declare unlawful the transactions or events
contemplated by this Agreement, or (iii) cause any of such transactions to
be rescinded; and
(2) there are no judgments, injunctions, orders or other judicial
or administrative mandates outstanding against or affecting Eagle which
would materially hinder or delay the consummation of the transactions
contemplated by this Agreement or which would have a Material Adverse
Effect.
(6) Compliance with Laws. To the knowledge of Eagle, it is in compliance
in all material respects with all laws, governmental rules and ordinances of the
federal, state and local authorities having jurisdiction over and except where
the failure to so comply would not have a Material Adverse Effect.
(7) Conversion of BUC$. No Eagle BUC$holder has exercised its right,
under the Agreement of Limited Partnership of Eagle, as amended, to convert its
Eagle BUC$ into limited partnership interests in Eagle.
(8) Eagle has not, since June 18, 1997, suffered a Material Adverse
Effect.
(9) Material Adverse Effect. As used in this Section 3.4 "Material
Adverse Effect" shall mean any material adverse change in the business, assets
or financial condition of Eagle which has a material adverse effect on the
income reasonably expected to be generated by Eagle from and after the Closing
Date or the economic value thereof.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF AEGIS
Aegis hereby represents and warrants to the Partnerships, as follows:
Section IV.1 Organization, Standing and Corporate Power.
24
Aegis is a corporation duly organized, validly existing and in good
standing under the laws of Maryland and has the requisite corporate power and
authority to own, lease and operate its properties and to carry on its business
as being conducted. Aegis is duly qualified or licensed to do business and is in
good standing in each jurisdiction in which the nature of its business or the
character, or location of the properties owned by it makes such qualification or
licensing necessary, except where the failure to be so qualified or licensed
would not have a material adverse effect on the condition of Aegis. Aegis has
delivered to the Partnerships complete and correct copies of its Amended and
Restated Articles of Incorporation and by-laws, as amended to the date of this
Agreement. Aegis is not in default under or in violation of any provisions of
its Amended and Restated Articles of Incorporation or by-laws.
Section IV.2 Aegis Capital Structure.
The authorized capital stock of Aegis consists of 50,000,000 shares
of Common Stock, par value $.01 per share and 5,000,000 shares of Preferred
Stock. At the close of business on September 30, 1997, (i) 1,000 Shares were
issued and outstanding (which will be repurchased by Aegis pursuant to Section
1.19 hereof for a purchase price of $1.00 per share), (ii) 8,097,539 Shares have
been reserved for issuance pursuant to the Mergers (and pursuant to the exercise
of exchange rights by the Related GPs and Advisor under the Exchange Rights
Agreement), (iii) 800,000 Shares have been reserved for issuance pursuant to the
exercise of options granted or to be granted pursuant to Aegis's Incentive Stock
Option Plan, and (iv) 316,261 Shares have been reserved for issuance in
connection with the Settlement of the Litigation. Except as set forth above, at
the close of business on September 30, 1997, no shares of capital stock or other
voting securities of Aegis were issued, reserved for issuance or outstanding.
All outstanding Shares of Aegis are, and all Shares which may be issued pursuant
to this Agreement will be, when issued, duly authorized, validly issued, fully
paid and nonassessable and not subject to preemptive rights. As of the date of
this Agreement, no bonds, debentures, notes or other indebtedness of Aegis
having the right to vote (or convertible into, or exchangeable for, securities
having the right to vote) on any matters on which the holders of Shares may vote
are issued and outstanding.
Section IV.3 Authority; Noncontravention.
Aegis has all requisite corporate power and authority to enter into
this Agreement and to consummate the transactions contemplated by this
Agreement. The execution and delivery of this Agreement by Aegis and the
consummation by Aegis of the transactions contemplated by this Agreement have
been duly authorized by all necessary corporate action on the part of Aegis and
no other action on the part of Aegis is necessary to authorize the execution,
delivery and performance of this Agreement by Aegis. This Agreement has been
duly executed and delivered by and, assuming this Agreement constitutes the
valid and binding agreement of the Partnerships, constitutes a valid and binding
obligation of Aegis, enforceable against such party in accordance with its terms
except that the enforcement thereof may be limited by (a) bankruptcy,
insolvency, reorganization, moratorium or similar laws now or hereafter in
effect relating to creditor's rights generally and (b) general principles of
equity (regardless of whether enforceability is considered in
25
a proceeding at law or in equity). The execution and delivery of this Agreement
does not, and the consummation of the transactions contemplated by this
Agreement and compliance with the provisions of this Agreement will not (i)
conflict with any of the provisions of the Amended and Restated Articles of
Incorporation or by-laws of Aegis, (ii) conflict with, result in a breach of or
default (with or without notice or lapse of time, or both) under, or give rise
to a right of termination, cancellation or acceleration of any obligation or
loss of a material benefit under, or require the consent of any person under,
any indenture, or other agreement, permit, concession, franchise, license or
similar instrument or undertaking to which Aegis is a party or by which Aegis
any of its assets is bound or affected, or (iii) contravene any law, rule or
regulation of any state or of the United States or any political subdivision
thereof or therein, or any order, writ, judgment, injunction, decree,
determination or award currently in effect. No consent, approval or
authorization of, or declaration or filing with, or notice to, any governmental
entity which has not been received or made, is required to be made by Aegis in
connection with the execution and delivery of this Agreement by Aegis or the
consummation by Aegis of any of the transactions contemplated by this Agreement.
ARTICLE V
SURVIVAL OF PROVISIONS
Section V.1 Survival.
The representations and warranties respectively made, or required to
be made, by the parties to this Agreement, or in any certificate, respectively,
delivered by the parties hereto pursuant to this Agreement will not survive the
Closing.
ARTICLE VI
NOTICES
Section VI.1 Notices.
All notices and other communications under this Agreement must be in
writing and will be deemed to have been duly given if delivered, telecopied or
mailed, by certified mail, return receipt requested, first class postage
prepaid, to the parties at the following addresses:
If to Aegis, to:
Aegis Realty, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
26
With a Copy to:
Battle Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx, Esq.
If to Operating Partnership, to:
Aegis Realty Operating Partnership, L.P.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
With a Copy to:
Battle Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx, Esq.
If to Aegis Holding LP to:
Aegis Realty Holding, LP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
With a Copy to:
Battle Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx, Esq.
If to Insured I, to:
Summit Insured Equity L.P.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx
With a Copy to:
27
Battle Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx, Esq.
If to Insured II, to:
Summit Insured Equity II L.P.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx
With a Copy to:
Battle Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx, Esq.
If to Summit Preferred, to:
Summit Preferred Equity L.P.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx
With a Copy to:
Battle Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx, Esq.
If to Eagle, to:
Eagle Insured Equity L.P.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx
With a Copy to:
Battle Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
00
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx, Esq.
If to Related GP I, to:
Related Insured Equity Associates, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
With a copy to:
Battle Xxxxxx, LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
If to Related XX XX, to:
RIDC II, L.P.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
With a copy to:
Battle Xxxxxx, LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
If to Related GP III, to:
Related Equity Funding, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
With a copy to:
Battle Xxxxxx, LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
If to Related XX XX, to:
Related Federal Insured, L.P.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
29
With a copy to:
Battle Xxxxxx, LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
If to Partnership Monitoring Corp., to:
Partnership Monitoring Corp.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
With a copy to:
Battle Xxxxxx, LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
All notices and other communications required or permitted under this
Agreement that are addressed as provided in this Article VI will, if delivered
personally, be deemed given upon delivery, will, if delivered by telecopy, be
deemed delivered when confirmed and will, if delivered by mail in the manner
described above, be deemed given on the third business day after the day it is
deposited in a regular depository of the United States mail. Any party from time
to time may change its address for the purpose of notices to that party by
giving a similar notice specifying a new address, but no such notice will be
deemed to have been given until it is actually received by the party sought to
be charged with the contents thereof.
ARTICLE VII
CONDITIONS PRECEDENT
Section VII.1 Conditions to Each Party's Obligation To Effect
the Consolidation. The respective obligation of each party hereto to effect the
Consolidation is n subject to the satisfaction or waiver on or prior to the
Closing Date of the following conditions:
(1) the Final Order continues to be viable;
(2) no provision of any applicable law or regulation and no
judgment, injunction, order or decree shall prohibit the consummation of the
Consolidation;
(3) all actions by or in respect of or filings with any
governmental body, agency, official or authority required to permit the
consummation of the Consolidation shall have
30
been obtained or completed; and
(4) the Withdrawal Transactions shall have been consummated
pursuant to the Purchase Agreement;
(5) the Shares shall have been approved for listing on the American
Stock Exchange, subject to notice of issuance;
(6) pursuant to the Partnership Agreement Amendments, the Advisor
has contributed back to each respective Partnership one-half of the general
partner interests of each such Partnership received by it in the Withdrawal
Transactions.
Section VII.2. Conditions to Obligations of Aegis and its
Affiliates. The obligations of Aegis and its Affiliates to effect the
Consolidation is further subject to the following conditions:
(1) Accuracy of Representations and Warranties. The representations
and warranties of the other parties to this Agreement contained in this
Agreement shall have been true and correct on the date of this Agreement and as
of the Closing Date (except to the extent that they expressly relate only to an
earlier time, in which case they shall have been true and correct as of such
earlier time) other than such breaches of representations and warranties which
in the aggregate would not reasonably be expected to have a Material Adverse
Effect on the condition of any Partnership, provided, however, that the
representations and warranties of any Partnership contained in this Agreement to
the extent qualified by "material", "material adverse effect" or "material
adverse change" shall be true and correct in all respects at and as of the
Closing Date.
(2) Perfomance of Obligations by the Other Parties. The other
parties to this Agreement shall have performed in all material respects all
obligations required to be performed by them under this Agreement at or prior
to the Closing Date and shall not have willfully or intentionally (i) breached
any of their respective representations or warranties herein or (ii) failed to
perform or satisfy any of their respective obligations or covenants hereunder,
and Aegis shall have received certificates dated as of the Closing Date signed
on behalf of each Partnership by their respective general partners to such
effect.
Section VII.3 Conditions to Obligation of the Partnerships.
The obligation of each Partnership to effect the Consolidation is further
subject to the following conditions:
(1) Accuracy of Representations and Warranties. The representations
and warranties of Aegis and its Affiliates and the other parties to this
Agreement contained in this Agreement shall have been true and correct on this
date of this Agreement and as of the Closing Date (except to the extent that
they expressly relate only to an earlier time, in which case they shall have
been true and correct as of such earlier time), other than such breaches of
representations and warranties which in the aggregate would not reasonably be
expected to have a material adverse effect on the condition of such other
parties; provided, however, that the representations and warranties of the other
parties contained in this Agreement to the extent
31
qualified by "material", "material adverse effect" or "material adverse change"
shall be true and correct in all respects at and as of the Closing Date.
(2) Performance of Obligations of Aegis and its Affiliates and the
Other Parties to this Agreement Partnerships. Aegis and its Affiliates and the
other parties to this Agreement Partnerships shall have performed in all
material respects all obligations required to be performed by such party under
this Agreement at or prior to the Closing Date and shall not have willfully or
intentionally (i) breached any of their representations or warranties herein or
(ii) failed to perform or satisfy any of its obligations or covenants hereunder.
(3) Opinion of Counsel. The Partnerships shall have received the
opinion dated the Closing Date of counsel to Aegis as set forth in the
Solicitation Statement.
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
Section VIII.1 Termination. This Agreement may be terminated
and abandoned at any time prior to the Effective Time:
(1) by mutual written consent of the parties hereto or
(2) by either Aegis and its Affiliates on the one hand or the
Partnerships on the other:
(1) at any time after March 31, 1998 if the Consolidation
shall not have been consummated by such date, unless the
failure to consummate the Consolidation is the result of a
failure to fulfill any obligation under this Agreement by any
party seeking to terminate this Agreement or the failure of
the representations and warranties of any party seeking to
terminate this Agreement to be true and correct in all
material respects; and
(2) at any time prior to the Effective Time by Aegis and its
Affiliates on the one hand, or the Partnerships on the other,
in the event of either (A) a material breach by any of the
Partnerships on the one hand, and Aegis and its Affiliates on
the other, of any representation or warranty contained in this
Agreement, which breach cannot be or has not been cured within
30 days after the giving of written notice to the breaching
party of such breach; or (B) a material breach by any of the
Partnerships on the one hand, and Aegis and its Affiliates on
the other, of any of the covenants or agreements contained in
this Agreement, which breach cannot be or has not been cured
within 30 days after the giving of written notice to the
breaching party of such breach.
32
Section VIII.2 Effect of Termination. In the event of
termination of this Agreement as provided in Section 8.1, this Agreement shall
forthwith become void and have no effect, without any liability or obligation on
the part of the parties hereto. Nothing contained in this Section 8.2 shall
relieve any party from any liability resulting from any material breach of the
representations, warranties, covenants or agreements set forth in this
Agreement.
Section VIII.3 Amendment. At any time prior to the Effective
Time, the parties hereto may modify or amend this Agreement, by written
agreement executed and delivered by duly authorized officers, general partners,
or members, as the case may be, of the respective parties. This Agreement may
not be amended except by an instrument in writing signed on behalf of each of
the parties.
Section VIII.4 Extension; Waiver. At any time prior to the
Effective Time, each party may (a) extend the time for the performance of any of
the obligations or other acts of any other party, (b) waive any inaccuracies in
the representations and warranties of any other party contained in this
Agreement or in any document delivered pursuant to this Agreement or (c) subject
to Section 8.3, waive compliance with any of the agreements or conditions of any
other party contained in this Agreement. Any agreement on the part of a party to
any such extension or waiver shall be valid only if set forth in an instrument
in writing signed on behalf of such party, and only with respect to such party.
The failure of any party to this Agreement to assert any of its rights under
this Agreement or otherwise shall not constitute a waiver of such rights.
Section VIII.5 Procedure for Termination, Amendment, Extension
or Waiver. A termination of this Agreement pursuant to Section 8.1, an
amendment of this Agreement pursuant to Section 8.3 or an extension or waiver
pursuant to section 8.4 shall, in order to be effective, require in the case of
any Partnership, action by a general partner of such Partnership, and in the
case of any corporation, action by any officer of such corporation.
ARTICLE IX
MISCELLANEOUS
Section IX.1 Entire Agreement. Except for the Purchase
Agreement and any documents executed by the parties hereto pursuant hereto, this
Agreement supersedes all prior discussions and agreements between the parties
with respect to the subject matter of this Agreement, and this Agreement
(including the exhibits and schedules hereto, and other documents delivered in
connection herewith) and the Purchase Agreement contain the sole and entire
agreement between the parties hereto with respect to the subject matter hereof.
Section IX.2 Expenses. All costs and expenses incurred by the
parties hereto incident to preparing for, entering into, carrying out and
performing this Agreement and the transactions contemplated hereby (the
"Consolidation Expenses") shall be borne and paid for as
33
follows:
(1) All Consolidation Expenses incurred by Aegis and its
Affiliates shall be borne and paid for by Aegis;
(2) If the Consolidation is consummated, Aegis shall be
responsible for all Consolidation Expenses incurred by the Partnerships and
shall reimburse the Partnerships for the same;
(3) If none of the Consolidation is not consummated, each of
the respective Related GPs shall be responsible for Consolidation Expenses of
their respective Partnerships and shall reimburse each of their respective
Partnerships for the same.
Section IX.3 Counterparts. This Agreement may be executed in
one or more counterparts, each of which will be deemed an original, but all of
which will constitute one and the same instrument and shall become effective
when one or more counterparts have been signed by each of the parties and
delivered to the other parties.
Section IX.4 No Third Party Beneficiary. Except as otherwise
expressly provided herein, the terms and provisions of this Agreement are
intended solely for the benefit of the parties hereto, and their respective
successors or assigns, and it is not the intention of the parties to confer
third party beneficiary rights upon any other person.
Section IX.5 Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of Delaware,
regardless of the laws that might otherwise govern under applicable principles
of conflicts of laws thereof.
Section IX.6 Assignment; Binding Effect. Neither this
Agreement nor any of the rights, interests or obligations under this Agreement
shall be assigned, in whole or in part, by operation of law or otherwise by any
of the parties without the prior written consent of the other parties, and any
such assignment that is not consented to shall be null and void. Subject to the
preceding sentence, this Agreement will be binding upon, inure to the benefit of
and be enforceable by, the parties and their respective successors and assigns.
Section IX.7 Enforcement. The parties agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement, this being in addition
to any other remedy to which they are entitled at law or in equity.
Section IX.8 Headings, Gender, etc. The headings used in this
Agreement have been inserted for convenience and do not constitute matters to be
construed or interpreted in connection with this Agreement. Unless the context
of this Agreement otherwise
34
requires, (a) words of any gender are deemed to include each other gender, (b)
words using the singular or plural number also include the plural or singular
number, respectively, (c) the terms "hereof," "herein, " "hereby, " "hereto,"
and derivative or similar words refer to this entire Agreement, (d) the terms
"Article" or "Section" refer to the specified Article or Section of this
Agreement, (e) all references to "dollars" or will refer to currency of the
United States of America, and (f) the term "person" shall include any natural
person, corporation, limited liability company, general partnership, limited
partnership, or other entity, enterprise, authority or business organization.
[SIGNATURE PAGES FOLLOW]
35
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the parties hereto, effective as of the date first written above.
AEGIS REALTY, INC. AOP MERGER SUB I, INC.
By: _______________________________ By: ________________________
Name: J. Xxxxxxx Xxxxx Name: Xxxxxx X. Xxxxxx
Title: President Title: President
AEGIS REALTY OPERATING AOP MERGER SUB II, INC.
PARTNERSHIP, L.P.
By: _______________________________
By: AEGIS REALTY, INC., Name: Xxxxxx X. Xxxxxx
as its General Partner Title: President
By: _________________________ SUMMIT INSURED EQUITY L.P.
Name: J. Xxxxxxx Xxxxx
Title: President By: RELATED INSURED QUITY
ASSOCIATES, INC., its General
AEGIS REALTY HOLDING Partner
PARTNERSHIP, LP
By: _______________________________
By: AEGIS REALTY OPERATING Name: Xxxxxx X. Xxxxxx
PARTNERSHIP, L.P., as its General Title: Vice President
Partner
SUMMIT INSURED EQUITY II L.P.
By: AEGIS REALTY, INC.
as its General Partner By: RIDC II, L.P., its General
Partner
By: _______________________ By: Related Insured Equity
Name: J. Xxxxxxx Xxxxx Associates, II, Inc.
Title: President
By: _______________________
RELATED AEGIS, LP Name: Xxxxxx X. Xxxxxx
Title: Vice President
By: RELATED AEGIS, INC., its General
Partner SUMMIT PREFERRED EQUITY L.P.
By: _________________________ By: RELATED EQUITY FUNIDNG, INC.,
Name: J. Xxxxxxx Xxxxx its General Partner
Title: President
By: _______________________
Name: Xxxxxx X. Xxxxxx
Title: President
RELATED INSURED EQUITY EAGLE INSURED L.P.
36
ASSOCIATES, INC.
By: RELATED FEDERAL INSURED L.P.,
By:_____________________________ as its General Partner
Name: Xxxxxx X. Xxxxxx
Title: Vice President By: RFI ASSOCIATES, INC., as its
General Partner
RIDC II, L.P. By: _______________________
Name: Xxxxxx X. Xxxxxx
By: Related Insured Equity Title: Vice President
Associates, II, Inc.
By:_____________________________ By: PARTNERSHIP MONITORING
Name: Xxxxxx X. Xxxxxx CORPORATION, its General
Title: Vice President Partner
By:_______________________
Name: J. Xxxxxxx Xxxxx
Title: President
RELATED EQUITY FUNDING, INC.
RELATED FI BUC$, INC.
By:_______________________
Name: Xxxxxx X. Xxxxxx
Title: Vice President By: __________________________
Name: J. Xxxxxxx Xxxxx
Title: President
RELATED INSURED BUC$ ASSOCIATES,
INC.
PARTNERSHIP MONITORING
By:________________________ CORPORATION
Name: J. Xxxxxxx Xxxxx
Title: President By: _________________________
Name: J. Xxxxxxx Xxxxx
Title: President
RELATED BUC$ ASSOCIATES, INC.
By:_________________________
Name: J. Xxxxxxx Xxxxx
Title: President
37
RELATED FEDERAL INSURED L.P.
By: RFI ASSOCIATES, INC., as its
General Partner
By: ______________________
Name: Xxxxxx X. Xxxxxx
Title: Vice President
38
AGREEMENT AND PLAN OF CONSOLIDATION
DATED AS OF OCTOBER 1, 1997
By and Among
AEGIS REALTY, INC.
AEGIS REALTY OPERATING PARTNERSHIP, L.P.
AEGIS REALTY HOLDING PARTNERSHIP, LP
AOP MERGER SUB I, INC.
AOP MERGER SUB II, INC.
RELATED AEGIS, LP
SUMMIT INSURED EQUITY L.P.
SUMMIT INSURED EQUITY II L.P.
SUMMIT PREFERRED EQUITY L.P.
EAGLE INSURED L.P.
RELATED EQUITY FUNDING, INC.
PARTNERSHIP MONITORING CORPORATION.
RELATED FEDERAL INSURED, L.P.
RELATED INSURED BUC$ ASSOCIATES, INC.
RELATED BUC$ ASSOCIATES, INC.
RIDC II, L.P.
RELATED FI BUC$ ASSOCIATES, INC.
TABLE OF CONTENTS
Page
ARTICLE I ASSIGNMENT OF INTERESTS.................................................................................3
Section 1.1 Closing...............................................................................3
Section 1.2 Summit Preferred Assignments..........................................................3
Section 1.3 Eagle Assignments.....................................................................5
Section 1.4 Insured I Assignments and Contributions...............................................5
Section 1.5 Insured II Assignments and Contributions..............................................6
Section 1.6 Aegis Assignments and Contributions of Economic Interests of the General Partner
Interests of Summit Preferred and Eagle to the Operating Partnership..................7
Section 1.7 Aegis Assignment of BUC$ to the Operating Partnership.................................7
Section 1.8 Aegis Assignments and Contributions to Aegis Holding, L.P.............................8
Section 1.9 Operating Partnership Assignments and Contributions to Aegis Holding, LP..............8
Section 1.11 Eagle Assignment of Mortgages.........................................................8
Section 1.12 Sequence of Assignments and Other Transactions .......................................8
Section 1.13 Further Assurances....................................................................8
Section 1.14 No Fractional Shares..................................................................9
Section 1.15 Delivery of Share Certificates; Exchange of BUC$ Certificates for Share Certificates..9
Section 1.16 Aegis' Option to Not Require Delivery of BUC$
Certificates by BUC$holders in Order to Receive Shares...............................11
Section 1.17 Shares issued to Related General Partners to equal 0.75% of all Shares outstanding
after the Consolidation..............................................................12
Section 1.18 Shares to be issued to Advisor to equal 0.37% of all Shares outstanding after the
Consolidation........................................................................12
ARTICLE II THE CONSOLIDATION......................................................................................13
Section 2.1 The Consolidation....................................................................13
Section 2.2 Effective Time.......................................................................13
Section 2.3 Certificates of Limited Partnership of the Surviving Entities........................13
Section 2.4 Agreements of Limited Partnership of Surviving Entities..............................14
Section 2.5 General Partners of the Surviving Entities...........................................14
Section 2.6 Cancellation of General and Limited Partner Interests in Insured I...................15
Section 2.7 Conversion of Shares of AOP Sub I....................................................15
Section 2.8 Cancellation of General and Limited Partner Interests in Insured II .................15
Section 2.9 Conversion of Shares of AOP Sub II...................................................16
Section 2.10 Cancellation of General and Limited Partner Interests in Summit Preferred............16
Section 2.11 Cancellation of General and Limited Partner Interests in Eagle.......................17
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ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE PARTNERSHIPS.....................................................17
Section 3.1 .....................................................................................17
(a) Organization and Good Standing.......................................................18
(b) Authority; Power.....................................................................18
Section 3.2 .....................................................................................19
(a) Organization and Good Standing.......................................................19
(b) Authority; Power.....................................................................20
Section 3.3 .....................................................................................21
(a) Organization and Good Standing.......................................................21
(b) Authority; Power.....................................................................21
Section 3.4 .....................................................................................23
(a) Organization and Good Standing.......................................................23
(b) Authority; Power.....................................................................23
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF AEGIS................................................................25
Section 4.1 Organization, Standing and Corporate Power...........................................25
Section 4.2 Aegis Capital Structure..............................................................25
Section 4.3 Authority; Noncontravention..........................................................26
ARTICLE V SURVIVAL OF PROVISIONS.................................................................................27
Section 5.1 Survival.............................................................................27
ARTICLE VI NOTICES................................................................................................27
Section 6.1 Notices..............................................................................27
ARTICLE VII CONDITIONS PRECEDENT...................................................................................31
Section 7.1 Conditions to Each Party's Obligation To Effect the Consolidation....................31
Section 7.2 Conditions to Obligations of Aegis and its Affiliates................................32
Section 7.3 Conditions to Obligation of the Partnerships.........................................32
ARTICLE VIII TERMINATION, AMENDMENT AND WAIVER......................................................................33
Section 8.1 Termination..........................................................................33
Section 8.2 Effect of Termination................................................................34
Section 8.3 Amendment............................................................................34
Section 8.4 Extension; Waiver....................................................................34
Section 8.5 Procedure for Termination, Amendment, Extension or Waiver............................34
ARTICLE IX MISCELLANEOUS..........................................................................................34
Section 9.1 Entire Agreement.....................................................................34
Section 9.2 Expenses.............................................................................35
Section 9.3 Counterparts.........................................................................35
Section 9.4 No Third Party Beneficiary...........................................................35
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Section 9.5 Governing Law .......................................................................35
Section 9.6 Assignment; Binding Effect...........................................................35
Section 9.7 Enforcement..........................................................................35
Section 9.8 Headings, Gender, etc................................................................36
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