AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER
THIS AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER (this
"Agreement") is made and entered into as of the 20th day of February, 1998 by
and between INSIGNIA PROPERTIES TRUST, a Maryland real estate investment trust
(the "Successor"), and MAE GP CORPORATION, a Delaware corporation (the "Merging
Corporation").
W I T N E S S E T H
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WHEREAS, the parties desire to enter into a merger pursuant to which
the Merging Corporation shall merge with and into the Successor on the terms
set forth herein; and
WHEREAS, the parties have previously entered into that certain
Agreement and Plan of Merger dated February 17, 1998 (the "Original
Agreement"), and by this Agreement wish to amend and restate the Original
Agreement in its entirety;
NOW, THEREFORE, in consideration of the foregoing premises, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by each of the parties, the parties hereby agree as
follows:
ARTICLE I
THE MERGER; EFFECTIVE DATE
--------------------------
1.1 Subject to the terms and conditions set forth herein, the parties
hereby agree to merge in accordance with the terms of the Agreement. The merger
between the parties described herein (the "Merger") shall be accomplished in
the manner specified in Title 8 of the Corporations and Associations Article of
the Annotated Code of Maryland (the "Maryland REIT Law") and the Delaware
General Corporation Law (the "DGCL").
1.2 The parties contemplate that, effective upon the consummation of
the Merger, the Merging Corporation will be merged with and into the Successor,
that the Merging Corporation thereafter will cease to exist as a separate
corporation and that the Successor will be the surviving business entity in the
Merger.
1.3 The consummation of the Merger is subject to, and contingent upon,
the occurrence of each of the following conditions precedent (the "Conditions
to the Merger"): (i) the Board of Directors of the Merging Corporation adopting
a resolution declaring that the Merger is advisable and is approved; (ii) the
recommendation of the Merger to the sole stockholder of the Merging Corporation
by the Board of Directors of the Merging Corporation; (iii) the approval of the
Merger by the sole stockholder of the Merging Corporation; and (iv) the Board
of Trustees of the Successor approving the Merger.
1.4 Subject to the occurrence of each of the Conditions to the Merger,
the Merger shall be accomplished as follows:
(a) Each of the parties shall cause the Agreement of Merger
in the form attached hereto as Exhibit A (the "Delaware Agreement of Merger")
to be executed by its appropriate officers and filed with the Secretary of
State of the State of Delaware.
(b) Each of the parties shall cause the Articles of Merger in
the form attached hereto as Exhibit B (the "Maryland Articles of Merger") to be
executed by its appropriate officers and filed with the State Department of
Assessments and Taxation of the State of Maryland.
1.5 Effective as of the Effective Date (as hereinafter defined), the
Merging Corporation shall be merged with and into the Successor; the separate
existence of the Merging Corporation shall cease; the Successor shall continue
in existence and shall thereafter possess any and all purposes and powers of
the Merging Corporation; and all assets, rights, properties and privileges of
the Merging Corporation shall be transferred to, vested in and devolved upon
the Successor without further act or deed, subject to all of the debts and
obligations of the Merging Corporation.
ARTICLE II
MERGER SHARE CONSIDERATION; CONVERSION AND
CANCELLATION IN THE MERGER
------------------------------------------
2.1 The manner and basis of converting the shares of stock of the
Merging Corporation into shares of beneficial interest of the Successor at the
Effective Date shall be as follows:
(a) At the Effective Date, each share of the common stock,
par value $1.00 per share, of the Merging Corporation (the "Common Stock of the
Merging Corporation") which is issued and outstanding immediately prior to the
Effective Date automatically and without any action on the part of the
stockholder thereof shall be converted into and become 332.3 shares of
beneficial interest, par value $.01 per share, of the Successor ("Common Shares
of the Successor").
(b) At the Effective Date, each share of the Common Stock of
the Merging Corporation held in treasury, if any, shall be canceled and retired
without the payment of any consideration.
2.2 Each stock certificate which, prior to the Effective Date,
represented issued shares of the Common Stock of the Merging Corporation shall
be and become, on the Effective Date, a certificate representing 332.3 Common
Shares of the Successor per share of Common Stock of the Merger Corporation
automatically by virtue of the Merger and without any action on the part of the
holder thereof. Upon consummation of the Merger, each stockholder
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of the Merging Corporation may surrender, assign and deliver to the Successor
all of the certificates evidencing the shares of the Common Stock of the
Merging Corporation which have been issued in his, her or its name, or
otherwise assigned or transferred to such stockholder, and the Successor in
exchange therefor will issue to each such stockholder a certificate evidencing
332.3 Common Shares of the Successor for each share of the Common Stock of the
Merger Corporation evidenced by the certificates surrendered, assigned and
delivered to the Successor.
2.3 The Merger shall be effective immediately upon the later to occur
(the "Effective Date") of (i) the date of the acceptance of the Delaware
Agreement of Merger for record by the Delaware Secretary of State or (ii) the
date of the acceptance of the Maryland Articles of Merger for record by the
State Department of Assessments and Taxation of the State of Maryland.
ARTICLE III
DECLARATION OF TRUST; BYLAWS AND TRUSTEES
AND OFFICERS OF SURVIVOR
-----------------------------------------
3.1 The declaration of trust and the bylaws of the Successor in effect
as of the Effective Date shall continue in effect as the declaration of trust
and the bylaws of the Successor following the consummation of the Merger. The
declaration of trust and the bylaws of the Successor shall not be amended or
otherwise modified in connection with or as a result of the Merger.
3.2 The incumbent officers and trustees of the Successor as of the
Effective Date shall continue to serve in such capacities following the
consummation of the Merger.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE MERGING CORPORATION
---------------------------------------------------------
The Merging Corporation represents and warrants to and for the benefit
of the Successor as follows:
4.1 The Merging Corporation is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, and has
full power and authority to own, operate and lease its properties, and to
conduct its business as it is now being conducted, and is qualified to transact
business as a foreign corporation in each jurisdiction in which the operation
of its business or the ownership of its properties requires such qualification.
The appropriate officers of the Merging Corporation have delivered to the
Successor a complete and correct copy of the articles of incorporation and
bylaws of the Merging Corporation, neither of which has been amended or
repealed since delivery to
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Successor, and each of which is in full force and effect in the form delivered
to Successor.
4.2 (a) The authorized capital stock of the Merging Corporation
consists solely of 1,000 shares of Common Stock of the Merging Corporation,
$1.00 par value, of which 1,000 shares have been issued and are outstanding.
Each of the shares of the Common Stock of the Merging Corporation issued and
outstanding as of the date hereof has been duly authorized and validly issued
and is fully paid and non-assessable. None of the shares of the issued and
outstanding Common Stock of the Merging Corporation has been issued in
violation of shareholder preemptive rights and have been offered, issued, sold
and delivered by the Merging Corporation in compliance with all registration or
qualification requirements (or applicable exemptions therefrom) of all
applicable federal and state securities laws. The Merging Corporation has no
issued or outstanding equity securities, debt securities or other instruments
which are convertible at any time into equity securities of the Merging
Corporation other than the 1,000 outstanding shares of Common Stock of the
Merging Corporation. The 1,000 outstanding shares of Common Stock of the
Merging Corporation represent 100% of the issued and outstanding capital stock
of the Merging Corporation.
(b) The Merging Corporation is not subject to any
commitment or obligation which would require the issuance or sale of shares of
its capital stock at any time under options, subscriptions, warrants, rights,
calls, preemptive rights, convertible obligations or any other fixed or
contingent obligations or which would provide the holder thereof with the right
to acquire any equity securities of the Merging Corporation.
(c) The Merging Corporation has no obligation
(contingent or other) to purchase, redeem or otherwise acquire any of its
equity securities or any interest therein or to pay any dividend or make any
other distribution in respect thereof.
(d) The Merging Corporation is not under any
obligation to register under the Securities Act any of its presently
outstanding securities or any securities that may be subsequently issued.
4.3 As of the Effective Date, the Merging Corporation does not have,
and the Successor shall not assume, any obligations under any employee benefit
plan or incentive compensation plan.
4.4 The Merging Corporation has the corporate power and authority to
enter into the Agreement and to perform its obligations hereunder and to
consummate the transactions contemplated hereby. The execution and delivery by
the Merging Corporation of the Agreement, the consummation by the Merging
Corporation of the Merger and the transactions contemplated hereby, and the
performance by the Merging Corporation of its obligations hereunder, have been
duly authorized by all necessary corporate
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action on the part of the Merging Corporation. The Agreement has been duly
executed and delivered by the Merging Corporation and constitutes a legal,
valid and binding obligation of the Merging Corporation, fully enforceable
against the Merging Corporation in accordance with its terms.
4.5 Except for obtaining approval of the sole stockholder of the
Merging Corporation and the filing of the Maryland Articles of Merger pursuant
to the Maryland REIT Law and the Delaware Agreement of Merger pursuant to the
DGCL, no filing with, or consent, waiver, approval or authorization of, or
notice to, any governmental authority or any third party is required to be made
or obtained by the Merging Corporation in connection with the execution and
delivery by it of the Agreement or any document or instrument contemplated
hereby, the consummation of any of the transactions contemplated hereby or the
performance of any of its obligations hereunder which have not been obtained by
the Merging Corporation.
4.6 On the date hereof, the Board of Directors of Merging Corporation
declared and paid to its sole stockholder, Metropolitan Asset Enhancement,
L.P., a dividend of all of the Class B common shares of Angeles Mortgage
Investment Trust (the "AMIT Shares") held by Merging Corporation, and thus
Successor will not succeed to the AMIT Shares by operation of law as a result
of the Merger.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SUCCESSOR
-------------------------------------------
The Successor represents and warrants to and for the benefit of the
Merging Corporation as follows:
5.1 The Successor is a real estate investment trust duly organized,
validly existing and in good standing under the laws of the State of Maryland,
and has full real estate investment trust power and authority to carry on its
businesses as it is now being conducted.
5.2 The Successor has the real estate investment trust power and
authority to enter into, execute and deliver the Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
The execution and delivery of the Agreement by the Successor, the consummation
by the Successor of the transactions contemplated hereby and the performance of
its obligations hereunder have been duly authorized by all necessary trust
action on the part of the Successor. The Agreement has been duly executed and
delivered by the Successor and constitutes a legal, valid and binding
obligation of the Successor, enforceable against the Successor in accordance
with its terms.
5.3 The Common Shares of the Successor to be issued pursuant to the
Merger shall, when issued, (i) be duly authorized, validly issued, fully paid
and nonassessable and free of liens and
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encumbrances created by the Successor, (ii) be free and clear of any transfer
restrictions, liens and encumbrances other than those imposed under applicable
federal and state securities laws and regulations and the ownership limitations
set forth in the Successor's declaration of trust and (iii) not be subject to
any preemptive rights created by statute, the declaration of trust or the
bylaws of the Successor.
5.4 Pursuant to Section 8-501.1(c)(3) of the Maryland REIT Law,
following a vote in favor of the Merger by a majority of the Successor's Board
of Trustees, no stockholder approval will be necessary because (i) the Merger
will not reclassify or change the Successor's outstanding shares or otherwise
amend its declaration of trust and (ii) the number of shares of Common Stock of
the Successor to be issued in the Merger is not more than 20 percent of the
number of shares of Common Stock of the Successor outstanding before the
Effective Date.
5.5 Except for the filing of the Maryland Articles of Merger pursuant
to the Maryland REIT Law and the Delaware Agreement of Merger pursuant to the
DGCL, no filing with, or consent, waiver, approval or authorization of, or
notice to, any governmental authority or any third party is required to be made
or obtained by the Successor in connection with the execution and delivery of
the Agreement, the consummation of any of the transactions contemplated hereby
or the performance of any of its obligations hereunder which have not been
obtained by the Successor.
ARTICLE VI
MISCELLANEOUS
-------------
6.1 The Agreement may be amended, modified, supplemented or changed in
whole or in part only by an agreement in writing making specific reference to
the Agreement and executed by each of the parties hereto.
6.2 The Agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and permitted assigns;
provided, however, that the Agreement and the rights of the parties hereunder
may not be assigned, and the obligations of the parties hereunder may not be
delegated, in whole or in part, without the prior written consent of the other
parties hereto.
6.3 Nothing in the Agreement is intended to confer upon any person or
party other than the parties hereto any rights or remedies hereunder.
6.4 The parties hereto each agree to execute, make, acknowledge, and
deliver such instruments, agreements and other documents as may be reasonably
required to effectuate the purposes
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of the Agreement and to consummate the transactions contemplated
hereby.
6.5 The Agreement shall be interpreted, construed and enforced in
accordance with, and shall be governed by, the laws of the State of Maryland,
without regard to the conflict of laws principles thereof.
6.6 The Agreement may be executed in counterparts, each of which shall
be deemed an original, but all of which taken together shall constitute one and
the same instrument.
6.7 Each party to the Agreement shall bear and be responsible for the
costs and other expenses incurred by such party in connection with the Merger.
IN WITNESS WHEREOF, each of the undersigned has caused the Agreement
to be executed and delivered, each intending it to constitute an instrument
under seal, as of the date set forth above.
INSIGNIA PROPERTIES TRUST
By:___________________________
Xxxxxxx X. Xxxxx
Senior Vice President
MAE GP CORPORATION
By:___________________________
Xxxxxxx X. Xxxxxx
President
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EXHIBIT A
---------
AGREEMENT OF MERGER
-------------------
THIS AGREEMENT OF MERGER (the "Agreement") is made as of the 20th day
of February, 1998 by and between INSIGNIA PROPERTIES TRUST, a Maryland real
estate investment trust (the "Successor") and MAE GP CORPORATION, a Delaware
corporation (the "Merging Corporation").
1. Subject to the terms and conditions set forth herein, the parties
hereby agree to merge.
2. The Merging Corporation will be merged with and into the Successor,
and the Merging Corporation thereafter will cease to exist as a separate
corporation.
3. The manner and basis of converting the shares of stock of the
Merging Corporation into shares of beneficial interest of the Successor at the
Effective Date (as hereinafter defined) shall be as follows:
(a) At the Effective Date, each share of the common stock of
the Merging Corporation which is issued and outstanding immediately prior to
the Effective Date automatically and without any action on the part of the
stockholder thereof shall be converted into and become 332.3 common shares of
beneficial interest of the Successor.
(b) At the Effective Date, each share of the common stock of
the Merging Corporation held in treasury, if any, shall be canceled and retired
without the payment of any consideration.
4. The Merger shall be effective immediately upon the later to occur
(the "Effective Date") of (i) the date of the acceptance of this Agreement for
record by the Secretary of State of the State of Delaware or (ii) the date of
the acceptance for record of Articles of Merger executed by each of the parties
hereto by the State Department of Assessments and Taxation of the State of
Maryland.
5. The terms and conditions of the transaction set forth in this
Agreement of Merger were advised, authorized and approved by the Merging
Corporation in the manner and by the vote required by its certificate of
incorporation and bylaws and the laws of the State of Delaware. The terms and
conditions of the transaction set forth in this Agreement of Merger were
advised, authorized and approved by the Successor in the manner and by the vote
required by its declaration of trust and bylaws and the laws of the State of
Maryland. The manner of approval by the Merging Corporation and the Successor
of the transaction set forth in these Articles of Merger was as follows:
(a) The board of directors of the Merging Corporation adopted
a resolution by unanimous written consent as of February 16, 1998, which
declared that the transaction set forth in
this Agreement of Merger is advisable and approved, and directed that the
transaction be submitted for consideration by the sole stockholder of the
Merging Corporation. The transaction set forth in this Agreement of Merger was
approved by the sole stockholder of the Merging Corporation by written consent
as of February 16, 1998 in accordance with the certificate of incorporation of
the Merging Corporation and the Delaware General Corporation Law.
(b) The board of trustees of the Successor adopted a
resolution by action by unanimous written consent as of February 13, 1998,
which declared that the transaction set forth in these Articles of Merger was
advisable and approved. Pursuant to Section 8-501.1(c)(3) of the Maryland
Corporations and Associations Article, following a vote in favor of the Merger
by a majority of the Successor's board of trustees, no stockholder approval is
necessary because (i) the Merger will not amend the Successor's declaration of
trust; (ii) will not reclassify or change the Successor's outstanding shares;
and (iii) the number of shares of Common Stock of the Successor to be issued in
the Merger is not more than 20 percent of the number of shares of Common Stock
of the Successor outstanding before the Effective Date.
6. The Successor may be served with process in the State of Delaware
in any proceeding for enforcement of any obligation the Merging Corporation, as
well as for enforcement of any obligation of the survivor arising from the
Merger, including any suit or other proceeding to enforce the right of any
stockholder as determined in appraisal proceedings pursuant to the provisions
of Section 262 of the Delaware General Corporation Law, and it does hereby
irrevocably appoint the Secretary of State of Delaware as its agent to accept
service of process in any such suit or other proceeding. The address to which a
copy of such process shall be mailed by the Secretary of State is: The
Corporation Trust Incorporated, 000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx
00000.
IN WITNESS WHEREOF, the Merging Corporation and the Successor have
caused this Agreement of Merger to be signed in their respective company names
and on their behalf by their respective officers who acknowledge and certify
respectively that this Agreement of Merger is the act of the Merging
Corporation and the Successor and that to the best of their knowledge,
information and
belief and under penalties for perjury, all matters and facts contained in this
Agreement is true in all material respects.
ATTEST: INSIGNIA PROPERTIES TRUST
______________________________ By:___________________________
Xxxxxx X. Xxxxxxxx Xxxxxxx X. Xxxxx
Assistant Secretary Senior Vice President
ATTEST: MAE GP CORPORATION
______________________________ By:___________________________
Xxxxxx X. Xxxxxxxx Xxxxxxx X. Xxxxxx
Assistant Secretary President
EXHIBIT B
---------
ARTICLES OF MERGER
BETWEEN
MAE GP CORPORATION,
A DELAWARE CORPORATION
AND
INSIGNIA PROPERTIES TRUST,
A MARYLAND REAL ESTATE
INVESTMENT TRUST
MAE GP CORPORATION, a Delaware corporation (the "Merging
Corporation"), and Insignia Properties Trust, a Maryland real estate investment
trust (the "Successor"), certify as follows:
FIRST: The Merging Corporation and the Successor agree to merge (the
"Merger") in accordance with the terms and conditions set forth herein and in
the Amended and Restated Agreement and Plan of Merger, dated as of February 20,
1998, by and between the Successor and the Merging Corporation.
SECOND: The Merger shall be effective upon the later of (i) the
acceptance for record of these Articles of Merger by the State Department of
Assessments and Taxation of the State of Maryland and (ii) the acceptance of an
Agreement of Merger by the Secretary of State of the State of Delaware (the
"Effective Date").
THIRD: The name of the Merging Corporation is "MAE GP CORPORATION,"
which is incorporated under the laws of the State of Delaware. The name of the
Successor is "Insignia Properties Trust," which is formed under the laws of the
State of Maryland.
FOURTH: The Merging Corporation was incorporated under the
laws of the State of Delaware on December 20, 1991. The Merging
Corporation is not registered or qualified to do business in the
State of Maryland.
FIFTH: The principal office in Maryland of the Successor is located in
Baltimore City at 000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000. The
Merging Corporation does not have a principal office in Maryland.
SIXTH: Neither the Merging Corporation nor the Successor owns any
interest in land in the State of Maryland the title to which could be affected
by recording an instrument in the land records.
SEVENTH: The total number of shares of stock that the Merging
Corporation has authority to issue is 1,000 shares of common stock, par value
$1.00 per share ("Common Stock of the Merging Corporation"). The total number
of shares of beneficial interest that the Successor has authority to issue is
400,000,000 common shares of beneficial interest, par value $0.01 per share
("Common Shares of the Successor"), and 100,000,000 preferred shares of
beneficial interest, par value $0.01 per share.
EIGHTH: The manner and basis of converting the shares of
stock of the Merging Corporation into stock of the Successor at the
Effective Date shall be as follows:
(a) At the Effective Date, each share of the Common Stock of
the Merging Corporation which is issued and outstanding immediately prior to
the Effective Date shall be converted into and become 332.3 fully paid and
nonassessable Common Shares of the Successor.
(b) At the Effective Date, each share of the Common Stock of
the Merging Corporation held in treasury, if any, shall be cancelled and
retired without payment of any consideration.
NINTH: On the Effective Date, the Merging Corporation shall be merged
with and into the Successor, which shall continue its existence as a real
estate investment trust under the laws of the State of Maryland and the
separate existence and corporate organization of the Merging Corporation shall
cease. The Successor shall continue in existence under its declaration of trust
and bylaws as they exist immediately prior to the Effective Date.
TENTH: The terms and conditions of the transaction set forth in these
Articles of Merger were advised, authorized and approved by the Merging
Corporation in the manner and by the vote required by its certificate of
incorporation and bylaws and the laws of the State of Delaware. The terms and
conditions of the transaction set forth in these Articles of Merger were
advised, authorized and approved by the Successor in the manner and by the vote
required by its declaration of trust and bylaws and the laws of the State of
Maryland. The manner of approval by the Merging Corporation and the Successor
of the transaction set forth in these Articles of Merger was as follows:
(a) The board of directors of the Merging Corporation adopted
a resolution by unanimous written consent as of February 16, 1998, which
declared that the transaction set forth in these Articles of Merger is
advisable and approved, and directed that the transaction be submitted for
consideration by the sole stockholder of the Merging Corporation. The
transaction set forth in these Articles of Merger was approved by the sole
stockholder of the Merging Corporation by written consent as of February 16,
1998 in accordance with the certificate of incorporation of the Merging
Corporation and the Delaware General Corporation Law.
(b) The board of trustees of the Successor adopted a
resolution by action by unanimous written consent as of February 3, 1998, which
declared that the transaction set forth in these Articles of Merger was
advisable and approved. Pursuant to Section 8-501.1(c)(3) of the MGCL,
following a vote in favor of the Merger by a majority of the Successor's board
of trustees, no stockholder approval is necessary because (i) the Merger will
not reclassify or change the Successor's outstanding shares or otherwise amend
its declaration of trust and (ii) the number of shares of Common Stock of the
Successor to be issued in the Merger is not more than 20 percent of the number
of shares of Common Stock of the Successor outstanding before the Effective
Date.
ELEVENTH: No amendment to the declaration of trust of the
Successor, the survivor in the Merger, will be affected by the
Merger.
IN WITNESS WHEREOF, the Merging Corporation and the Successor have
caused these Articles of Merger to be signed in their respective corporate
names and on their behalf by their respective authorized officers and attested
to by their respective corporate Assistant Secretaries as of the 20th day of
February, 1998.
ATTEST: INSIGNIA PROPERTIES TRUST,
a Maryland real estate
investment trust
______________________________ By:___________________________
Xxxxxx X. Xxxxxxxx Xxxxxxx X. Xxxxx
Assistant Secretary Senior Vice President
MAE GP CORPORATION,
a Delaware corporation
______________________________ By:___________________________
Xxxxxx X. Xxxxxxxx Xxxxxxx X. Xxxxxx
Assistant Secretary President
The undersigned, being the duly elected and acting Senior Vice
President of Insignia Properties Trust, a Maryland real estate investment trust
(the "Successor"), hereby acknowledges that the foregoing Articles of Merger,
of which this Certificate is a part, are the act of the Successor and certifies
that, to the best of his knowledge, information and belief, and under penalties
for perjury, all matters and facts contained in these Articles of Merger
relating to the Successor are true in all material respects.
------------------------------
Xxxxxxx X. Xxxxx
The undersigned, being the duly elected and acting President of MAE GP
CORPORATION, a Delaware corporation (the "Merging Corporation"), hereby
acknowledges that the foregoing Articles of Merger, of which this Certificate
is a part, are the act of the Merging Corporation and certifies that, to the
best of his knowledge, information and belief, and under penalties for perjury,
all matters and facts contained in these Articles of Merger relating to the
Merging Corporation are true in all material respects.
------------------------------
Xxxxxxx X. Xxxxxx
