AGREEMENT AND PLAN OF MERGER, dated as of November 7, 1996 (this
"Agreement"), among Cornerstone Properties Inc., a Nevada corporation (the
"Parent"), CStone-Pittsburgh Trust, a Maryland business trust and a wholly owned
subsidiary of the Parent ("Sub"), Xxxxx Building, Inc., a Delaware corporation
(the "Company"), and Hexalon Real Estate, Inc., a Delaware corporation, the sole
stockholder of the Company (the "Stockholder").
WHEREAS, the Board of Trustees of Sub and the respective Boards
of Directors of the Parent, the Company and the Stockholder each have determined
that it is in the best interests of their respective companies and stockholders
for Sub and the Company to merge upon the terms and subject to the conditions
set forth herein (the "Merger") and the Parent, Sub, the Company and the
Stockholder have, by duly adopted resolutions, approved and adopted this
Agreement; and
WHEREAS, to induce the Parent and Sub to enter into this
Agreement, the Stockholder has agreed to enter into a stockholders' agreement
(the "Stockholders' Agreement"), in the form set forth as Exhibit A hereto,
simultaneously with the closing of the Merger;
NOW, THEREFORE, in consideration of the representations,
warranties, covenants and agreements set forth herein, the parties hereto agree
as follows:
ARTICLE I. DEFINITIONS
Section 1.01. Definitions. As used in this Agreement, the
following terms shall have the following meanings:
"Account" means that certain account no. 8801721955
established at SunTrust Bank in the name of Xxxxx Building, Inc.
"Basic Agreements" means this Agreement and the
Stockholders' Agreement.
"Capital Stock" means, with respect to any Person, any and
all shares, interests, participation or other equivalents
(however designated) of such Person's capital stock and all joint
venture interests (however designated) whether now outstanding or
issued after the Closing Date, including, without limitation, all
common stock and all preferred stock.
"Capitalized Lease" means, as applied to the Parent, any
lease of property (whether real, personal or mixed) the
discounted present value of the rental obligations of the Parent
as lessee under which, in conformity with GAAP, is required to be
or is capitalized on the balance sheet of that Person.
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"Certificate of Merger" has the meaning specified in Section
2.02.
"Charter" means the Certificate of Incorporation of the
Parent, as amended or restated from time to time.
"Closing" has the meaning specified in Section 2.02.
"Closing Date" has the meaning specified in Section 2.02.
"Closing Statement" has the meaning specified in Section
3.03(a)(x).
"Commission" means the United States Securities and Exchange
Commission.
"Common Stock" means the common stock of the Parent, without
par value.
"Company Note" means the Demand Promissory Note, dated as of
July 31, 1989, of the Company to Stockholder in the original
principal amount of $36,000,000.
"Company Shares" has the meaning specified in Section 2.06.
"Contract Rights" means any and all rights of the Company in
and to the Contracts.
"Contracts" means all service, maintenance, supply,
construction, utility and management contracts affecting the
construction, use, ownership, maintenance and/or operation of the
Property (including contracts for the construction of tenant
improvements).
"Conversion Shares" means the Common Stock or other
securities issued upon conversion of the 8% Preferred Stock,
Series A.
"Currency Agreement" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement
designed to protect the Parent against fluctuations in currency
values.
"Debt" of the Parent means, at any date (without
duplication): (i) all obligations of the Parent for borrowed
money; (ii) all obligations of the Parent evidenced by bonds,
debentures, notes or other similar instruments; (iii) all
obligations of the Parent in respect of letters of credit,
bankers' acceptances or other similar instruments (or
reimbursement obligations with respect thereto); (iv) all
obligations of the Parent to pay the deferred purchase price of
property or services
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(but excluding trade accounts payable or accrued liabilities
arising in the ordinary course of business which are not
overdue); (v) all obligations of the Parent as lessee under
Capitalized Leases; (vi) all obligations of the Parent in respect
of performance bonds or other similar instruments; (vii) all
obligations of others of the types referred to in clauses (i)
through (vi), (viii) and (ix) of this paragraph secured by a Lien
on any asset of the Parent, whether or not any such obligation is
assumed by the Parent, provided that, for purposes of determining
the amount of any Debt of the type described in this clause
(vii), if recourse with respect to such Debt is limited to such
asset, the amount of such Debt shall be limited to the Fair
Market Value of such assets; (viii) all obligations of others of
the types referred to in clauses (i) through (vi) and (ix) of
this paragraph which are guaranteed by the Parent; and (ix) to
the extent not otherwise included, obligations under Currency
Agreements and Interest Rate Agreements.
"Delaware Law" means the Delaware General Corporation Law.
"Effective Time" has the meaning specified in Section 2.02.
"8% Preferred Stock" means the 8% Cumulative Convertible
Preferred Stock of the Parent, without par value, to be issued
hereafter.
"8% Preferred Stock Series A" has the meaning specified in
Section 2.06.
"Environmental Laws" has the meaning specified in Section
3.05(a)(vii).
"Executive Summary" has the meaning specified in Section
5.01(i).
"GAAP" means generally accepted accounting principles in the
United States as in effect at the time any particular
determination is made.
"Hazardous Materials" has the meaning specified in Section
3.05(a)(vii).
"Improvements" means all buildings and other improvements
located on or affixed to the Land, including, without limitation,
a 21-story office building with ground floor retail space known
as the Xxxxx Building, Pittsburgh, Pennsylvania, containing
approximately 341,421 square feet of net rentable area, and any
and all utility, plumbing, electrical, heating, air-conditioning
and ventilation lines, systems and boilers.
"Incurrence" means the issuance, incurrence, creation,
assumption or in any other manner becoming liable with respect
to, or the extension of the maturity or
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mandatory redemption date of, or becoming responsible for the
payment of, any Debt, Preferred Stock or Lien. "Incur" and
"Incurred" shall have correlative meanings.
"Intangible Rights" means all right, title and interest of
the Company, if any, in and to intangible and mixed property used
in connection with or relating to the Real Property or Personal
Property, including without limitation all third-party
representations, warranties, guarantees, indemnities, bonds,
approvals, licenses, applications, permits, plans, drawings,
specifications, surveys, maps, engineering reports and other
technical descriptions, environmental reports, trade names and
trademarks, telephone numbers and similar property, other than
the Contract Rights and the Leases.
"Interest Rate Agreements" means any interest rate
protection agreement, interest rate future, interest rate option,
interest rate swap, interest rate cap or other interest rate
hedge agreement, to or under which the Parent is a party or a
beneficiary on the date hereof or becomes a party or a
beneficiary hereafter.
"Land" means that certain parcel of land in Pittsburgh,
Pennsylvania more particularly described on Exhibit R-A attached
hereto, together with all rights, easements, and interests
appurtenant thereto.
"Leases" means all of the leases, occupancy agreements and
licenses of space in the Real Property, together with any
amendments of any of the foregoing or any related agreements,
including brokerage agreements and guaranties.
"Lien" means any pledge, mortgage, lien, charge, security
interest or encumbrance of any kind.
"Maryland Law" means Title 8 of Corporations and
Associations Annoted Code of Maryland.
"Material Adverse Effect" means for any entity, a material
adverse effect on the business, operations, properties or
condition (financial or otherwise) of such entity and its
Subsidiaries, taken as a whole.
"1934 Act" shall mean the United States Securities Exchange
Act of 1934, as amended, and, unless the context indicates
otherwise, the rules and regulations of the Commission
thereunder, all as the same shall be in effect from time to time.
"1933 Act" shall mean the United States Securities Act of
1933, as amended, and, unless the context indicates otherwise,
the rules and regulations of the Commission thereunder, all as
the same shall be in effect from time to time.
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"Person" means an individual, a partnership, a joint
venture, a corporation, an association, a trust, an individual
retirement account or any other entity or organization, including
a government or any department or agency thereof.
"Personal Property" means all right, title and interest of
the Company in and to the tangible personal property of the
Company listed in Exhibit R-B and any other tangible personal
property of the Company used in connection with the operation
and/or maintenance of the Real Property, including without
limitation all furniture, fixtures, equipment, machinery,
furnishings, carpets, drapes, blinds and mini-blinds, service and
maintenance equipment, tools, signs, telephones and other
communication equipment, intercom equipment and systems.
"Property" means the Real Property, the Personal Property,
the Intangible Rights, the Leases, and the Contract Rights.
"Real Property" means the Land and the Improvements.
"Rent Roll" has the meaning specified in Section 3.03(a)(i).
"7% Preferred Stock" means the 7% Cumulative Convertible
Preferred Stock of the Parent, without par value.
"Stockholder Knowledge Individuals" has the meaning
specified in Section 3.05(b).
"Subsidiary" means, as to any entity, any company,
corporation or joint venture of which at the time of
determination such entity, directly and/or indirectly through one
or more Subsidiaries, owns, or one or more other Subsidiaries
own, more than 50% of the Voting Stock or such entity controls,
or one or more other Subsidiaries control, the composition of
more than 50% of the board of directors or comparable governing
body thereof.
"Surviving Corporation" has the meaning specified in Section
2.01.
"Taxes" mean all taxes, however denominated, including any
interest, penalties or other additions to tax that may become
payable in respect thereof, imposed by any federal, territorial,
state, local or foreign government or any agency or political
subdivision of any such government, which taxes shall include,
without limiting the generality of the foregoing, all income or
profits taxes (including, but not limited to, federal income
taxes and state income taxes), real property gains taxes, payroll
and employee withholding taxes, unemployment insurance taxes,
social security (or similar) taxes, sales and use taxes, ad
valorem taxes, excise taxes,
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franchise taxes, gross receipts taxes, business license taxes,
occupation taxes, real and personal property taxes, stamp taxes,
environmental taxes, transfer taxes, workers' compensation,
Pension Benefit Guaranty Corporation premiums and other
governmental charges, alternative or add-on minimum taxes and
other obligations of the same or of a similar nature to any of
the foregoing, whether disputed or not, which the applicable
party is required to pay, withhold or collect.
"Tenant Estoppels" has the meaning specified in Section
3.03(a)(v).
"Title Company" means Lawyers Title Insurance Company.
"Voting Stock" means, with respect to any Person, securities
of any class or classes of Capital Stock of such Person entitling
the holders thereof (whether at all times or only so long as no
senior class of stock has voting power by reason of any
contingency) to vote in the election of members of the board of
directors or other governing body of such Person but does not
include Capital Stock having the right to vote in such election
solely upon the happening of a contingency unless and until such
contingency has occurred, and then only so long as such Capital
Stock has voting rights with respect thereto.
ARTICLE II. THE MERGER
Section 2.01. The Merger. Upon the terms and subject to the
conditions set forth in Section 3.03 and Article IV, and in accordance with
Maryland Law and Delaware Law, at the Effective Time the Company shall be merged
with and into Sub. As a result of the Merger, the separate corporate existence
of the Company shall cease and Sub shall continue as the surviving corporation
of the Merger (the "Surviving Corporation").
Section 2.02. Effective Time; Closing. As promptly as practicable
after the satisfaction or, if permissible, waiver of the conditions set forth in
Article IV, the parties hereto shall cause the Merger to be consummated by
filing this Agreement or a certificate of merger (the "Certificate of Merger")
with the Secretaries of State of Maryland and Delaware, in such form as is
required by, and executed in accordance with the relevant provisions of,
Maryland Law and Delaware Law (the date and time of the later of such filings
being the "Effective Time"). Prior to such filings, a closing shall be held at
the offices of Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, on November 7, 1996, or such other place and date as the parties shall
agree, for the purpose of confirming the satisfaction or waiver, as the case may
be, of the conditions set forth in Section 3.03 and Article IV (such closing
being called the "Closing" and such date being called the "Closing Date").
384488.1
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Section 2.03. Effect of the Merger. At the Effective Time, the
effect of the Merger shall be as provided in the applicable provisions of
Maryland Law and Delaware Law. Without limiting the generality of the foregoing,
and subject thereto, at the Effective Time all the property, rights, privileges,
powers and franchises of the Sub and the Company shall vest in the Surviving
Corporation, and all debts, liabilities, obligations, restrictions, disabilities
and duties of the Company and Sub shall become the debts, liabilities,
obligations, restrictions, disabilities and duties of the Surviving Corporation.
Section 2.04. Certificate of Formation; Bylaws. (a) At the
Effective Time, the Certificate of Formation of the Surviving Corporation shall
be as set forth in Exhibit B, until thereafter amended as provided by law and
such Certificate of Formation.
(b) The Bylaws of Sub, as in effect immediately prior to the
Effective Time, shall be the Bylaws of the Surviving Corporation until
thereafter amended as provided by law, the Certificate of Incorporation of the
Surviving Corporation and such Bylaws.
Section 2.05. Directors and Officers. The trustees of Sub
immediately prior to the Effective Time shall be the initial trustees of the
Surviving Corporation, each to hold office in accordance with the Trust
Declaration and Bylaws of the Surviving Corporation, and the officers of the Sub
immediately prior to the Effective Time shall be the initial officers of the
Surviving Corporation, in each case until their respective successors are duly
elected or appointed and qualified.
Section 2.06. Conversion of Company Shares. All the shares of
common stock of the Company (the "Company Shares") issued and outstanding
immediately prior to the Effective Time (all of which are and, immediately prior
to the Effective Time will be, owned by the Stockholder) shall, by virtue of the
Merger and without any action on the part of the holder thereof, be converted in
their entirety into and represent the right to receive, upon surrender to the
Parent of the certificates formerly representing the Company Shares, 458,621
shares of 8% Cumulative Convertible Preferred Stock Series A, without par value
(the "8% Preferred Stock Series A"), of the Parent having the terms set forth in
the Certificate of Designations attached hereto as Exhibit C.
Section 2.07. Conversion of Sub Common Stock. Each share of
common stock, par value $1.00 per share, of Sub issued and outstanding
immediately prior to the Effective Time shall, by virtue of the Merger and
without any action on the part of the holder thereof, be converted into and
exchangeable for one share of common stock of the Surviving Corporation.
384488.1
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ARTICLE III. CERTAIN MATTERS PERTAINING TO
REAL ESTATE AND THE COMPANY
Section 3.01. Delivery of Materials for Review. In connection
with the transactions contemplated hereby, prior to the Closing Date, the
Company delivered to the Parent or otherwise made available to the Parent for
its review the documents and other materials set forth on the Document List
attached hereto as Exhibit R-C.
Section 3.02. As-Is Clause. As a material inducement to the
Stockholder and the Company to execute this Agreement, the Parent and Sub
acknowledge, represent and warrant that, except as expressly provided in this
Agreement, (i) the Parent and Sub will have fully examined and inspected the
Property, including, without limitation, the construction, operation and leasing
of the Property, together with such other documents and materials with respect
to the Property which the Parent and Sub deem necessary or appropriate in
connection with their investigation and examination of the Property, including,
without limitation, all of the documents made available to the Parent or the Sub
at the offices of the Company's property manager, (ii) the Parent and Sub will
have accepted the foregoing and the physical condition, value, presence/absence
of Hazardous Materials, financing status, use, leasing, operation, tax status,
income and expenses of the Property, (iii) the Property will be subject to all
applicable laws and "AS IS" and "WHERE IS" and with all faults and, upon the
Closing, Sub shall assume responsibility for the physical condition of the
Property and (iv) the Parent and Sub will have decided to purchase the Property
solely on the basis of their own independent investigation. Except as expressly
set forth herein, neither the Stockholder nor the Company has made, makes, and
has authorized anyone else to make any representation as to the present or
future physical condition, value, presence/absence of hazardous materials,
financing status, leasing, operation, use, tax status, income and expenses or
any other matter or thing pertaining to the Property, and the Parent and Sub
acknowledge that no such representation or warranty has been made and that in
entering into this Agreement they do not rely on any representation or warranty
other than those expressly set forth in this Agreement. EXCEPT AS EXPRESSLY SET
FORTH IN THIS AGREEMENT, NEITHER THE STOCKHOLDER NOR THE COMPANY MAKES ANY
WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED OR ARISING BY OPERATION OF LAW,
INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF CONDITION, HABITABILITY,
MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY. The
provisions of this Section 3.02 shall survive the Closing.
Section 3.03. Closing Deliveries. (a) The Company's Deliveries.
The Company shall deliver or cause to be delivered the following documents to
Sub at the Closing:
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(i) The original, signed Leases (or copies thereof certified by
the Stockholder if originals are not available) as well as the
Company's tenant lease files, and a rent roll and delinquency report
for the current month ("Rent Roll") certified by the Stockholder as
being true and complete in all material respects, to Stockholders
knowledge.
(ii) A certification duly executed by the Stockholder in the form
attached hereto as Exhibit R-D, stating that the Company is not a
"foreign person" within the meaning of Section 1445 of the Internal
Revenue Code of 1986, as amended.
(iii) Originals (or certified copies thereof if originals are not
available) of the Contracts.
(iv) Originals of all books and records in the Company's
possession pertaining to the operation and management of the Property;
provided, however, that the Stockholder may keep copies of all such
books and records.
(v) Estoppel certificates from tenants of the Property occupying
eighty percent (80%) of the rentable square footage of the Property,
dated no earlier than twenty (20) days prior to the Closing Date
("Tenant Estoppels") in the form attached hereto as Exhibit R-E
(provided that if any Lease specifies the form of estoppel certificate
which the tenant thereunder is obligated to deliver, such form may be
delivered in lieu of the form attached hereto as Exhibit R-E).
(vi) Evidence reasonably satisfactory to Sub and Title Company
that all real estate taxes, sewer and water rates and charges, special
assessments and betterments, and any utility charges the non-payment
of which could result in a lien upon the Property, either have been
paid or are included in the Closing Statement for purposes of
apportionment.
(vii) Any and all keys, and lock and safe combinations respecting
the Improvements.
(viii) If the Contracts listed in Exhibit R-C include any
Contract for the construction of tenant improvements, evidence of
payment by the Company of all amounts incurred thereunder through the
Closing Date.
(ix) Such other instruments as the Parent or the Sub may
reasonably request.
(b) Satisfaction of Deliveries. Except with respect to any
representations, warranties or covenants of the parties that survive the Closing
in accordance with Section
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7.01, the occurrence of the Closing shall be deemed full and complete
satisfaction of the deliveries required pursuant to this Section 3.03 or the
waiver thereof by the party for whose benefit the delivery is required to be
made.
Section 3.04. Closing Costs and Prorations. At the Closing,
closing costs shall be paid and prorations made as between the Sub and the
Stockholder with respect to the Property in accordance with this Section 3.04.
(a) Closing Costs. The Stockholder and the Parent each agree to
cooperate with each other in making all filings required to confirm that no
state or local real estate transfer tax is due in connection with the
consummation of the transactions contemplated. In the event any such tax shall
be imposed, the Stockholder and the Parent shall each pay one-half of the same
when due, plus any interest and penalties. No filing or communication with any
tax official or authority shall be made by either party without the consent of
the other party. Each party shall bear its own costs and expenses in connection
with all such filings. The Sub shall pay the title insurance premium for the
owner's title insurance policy issued at the Closing to the Sub by Title Company
and any costs for any survey obtained by the Sub.
(b) Prorations. The following prorations shall be made as of
11:59 p.m. the day prior to the Effective Time:
(i) Taxes. Real and personal property taxes and general and
special assessments shall be prorated on the basis of the fiscal
year for such taxes and assessments. If the Closing Date shall
occur before the real property tax rate for such fiscal year is
fixed, the apportionment of taxes shall be made on the basis of
the taxes assessed for the preceding fiscal year. After the real
property taxes are finally fixed for the fiscal year in which the
Closing Date occurs, the Parent and the Stockholder shall make a
recalculation of the apportionment of such taxes, and the Parent
or the Stockholder, as the case may be, shall make an appropriate
payment to the other based on such recalculation. After the
Closing Date, Sub shall have the right to control and pursue
exclusively without the participation of the Stockholder any and
all tax reduction proceedings relating to the Property; provided
that if taxes increase as a result of said proceedings, the
Stockholder shall have no liability for such increases, and
provided that Sub shall cooperate with the Stockholder in
pursuing any tax reduction proceedings for tax year 1996. With
respect to 1996 taxes, the parties shall prorate on the basis of
the reduced assessment in effect on November 4, 1996, and the
Stockholder shall be entitled to the entire 1996 refund, if any.
Subject to the immediately preceding sentence, to the extent any
real estate tax refund is received on or after the Closing Date
by any party hereto, the amount of the net proceeds of such tax
refund shall be prorated to but not including the Closing Date,
if, as and when such proceeds
384488.1
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are paid by the applicable governmental taxing authority (it
being understood that, to the extent any tenant leasing space in
the Real Property shall be entitled to any portion of such tax
abatement, such portion shall be turned over to Sub to remit to
such tenant and shall be deducted from any tax refund proceeds in
connection with calculating the net proceeds thereof).
(ii) Rents. Prepaid rent, nondelinquent base rents,
additional rents in the nature of operating expense recoveries,
electricity recoveries, and tax reimbursements under the Leases
shall be prorated. Rents collected after the Closing Date from
tenants whose rental was delinquent on the Closing Date shall be
deemed to apply first to current rental due at the time of
payment and second to the rentals which were delinquent on the
Closing Date. Unpaid and delinquent rents, to which the
Stockholder is entitled, shall be turned over to the Stockholder
if collected by the Sub after the Closing Date within 30 days of
collection, less any reasonable third-party out-of-pocket
collection costs actually incurred by the Sub. The Sub agrees to
use good faith efforts to attempt to collect such rents. On the
Closing Date, the Sub shall be entitled to a credit for any
tenant security deposits and interest thereon, if any, and any
other amounts due tenants pursuant to such security deposits
unless such security deposits have been previously applied by the
Company. In the event that any additional rent or the calculation
thereof is subject to adjustment pursuant to the terms and
provisions of any Lease (e.g., year-end adjustments to escalation
charges, tenant audits, and the like), then after the amount of
such additional rent is finally determined by the Parent (which
determination shall be reasonably made), the parties shall make
the proper adjustments so that the proration will be accurate
based upon the actual amount of such additional rent collected
for the period in question, and payment shall be made promptly to
the Sub or the Stockholder, whichever may be entitled to such
payment, by the other party for the purpose of making such
adjustment.
(iii) Utilities. Charges and assessments for sewer and water
and other utilities, including charges for consumption of
electricity, steam and gas shall be apportioned by the Sub and
the Stockholder.
(iv) Adjustment of Contracts. Except as provided in (v)
below, payments required or received under all Contracts shall be
apportioned by the Sub and the Stockholder.
(v) Leasing Costs. The Parent shall be entitled to payment
at Closing for all costs and expenses required to be paid,
whether before or after the Closing, in respect of Leases entered
into prior to the Closing for (A) tenant improvement construction
contracts (except with respect to the
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payment for certain tenant improvement work required to be made
in 1999 under the Xxxxx, Xxxxxxx & Xxxxxxx lease for which the
Sub shall be solely responsible), (B) tenant improvement
allowances to tenants and (C) brokerage commissions, except
commissions which may become due in connection with the extension
or renewal of any Lease on or after the Closing Date or in
connection with the exercise after the Closing Date by any tenant
of any expansion or extension option contained in any of the
Leases.
(vi) Other. Any other items of income and expense shall be
prorated between the Sub and the Stockholder.
(c) Payment of Apportionment. Any net credit payable by the Sub
to the Stockholder (as a dividend in its capacity as former shareholder of the
Company pursuant to resolution of the Board of Directors of the Company, dated
November 4, 1996) or by the Stockholder to the Sub as a result of the foregoing
prorations shall be paid within five (5) business days after the Closing Date by
wire transfer of immediately available funds.
(d) Post-Closing Cooperation. After the Closing, the Parent and
the Stockholder shall cooperate with each other, and shall cause their
respective property managers for the Property to cooperate with each other,
including, without limitation, making available books and records for the
Property, in order to respond to any tenant inquiry concerning, challenge to or
audit of, any operating expense or similar additional rent or rent escalation
item. To the extent that any adjustment or proration required hereunder was
based on estimates at the time of the Closing, the parties shall readjust and
re-prorate based upon final numbers, when available, and make payment as
appropriate based upon such readjustment and re-proration.
(e) A closing statement (the "Closing Statement") reflecting the
adjustments made at the Closing and described in Section 3.04 hereof shall be
executed and delivered by Stockholder and Parent within five (5) Business Days
after the Effective Time.
(f) Survival. The provisions of this Section 3.04 shall survive
the Closing, provided, however, that the Stockholder and the Parent agree to use
reasonable efforts to finalize all prorations on or before the first anniversary
of the Closing Date.
Section 3.05. Stockholder's Representations and Warranties. (a)
The Stockholder hereby makes the following representations and warranties to the
Parent and Sub as of the Closing Date:
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(i) Delivery of Written Materials. Exhibit R-C includes all
of the Leases and Contracts relating to the Property, and the
Company has delivered to Sub true, accurate and complete copies
of all of the Leases and the Contracts and all other documents
and reports included in Exhibit R-C. Sub hereby acknowledges
receipt of each of the Leases and Contracts listed in Exhibit
R-C, but said acknowledgement shall in no way diminish the
foregoing representation and warranty of the Stockholder.
(ii) Other Agreements. On the Closing Date, (A) there will
be no Contracts other than the Contracts listed in Exhibit R-C,
and (B) there will be no Leases other than the Leases listed in
Exhibit R-C.
(iii) No Conflict. The execution, delivery of and
consummation of the transactions contemplated by this Agreement
are not prohibited by, and will not conflict with, constitute
grounds for termination of, or result in the breach of
organizational documents of the Company or the Stockholder, any
of the Leases or the Contracts or any other agreement or
instrument to which the Company is now a party or otherwise
subject, except for such conflicts or breaches of such Contracts
or other agreements or instruments as would not constitute a
Material Adverse Effect either individually or in the aggregate.
(iv) Leases. (A) No rent has been paid by any tenant or
occupant of the Property more than thirty (30) days in advance
(except as adjusted in the Closing Statement), (B) to the
Stockholder's knowledge, neither any tenant nor the Company is in
default in the performance of any material covenant, agreement or
condition contained in any of the Leases, (C) neither the
Stockholder nor the Company has received written notice from any
tenant regarding pending or threatened material offsets against
rent or for any material monetary or material claim against the
Company and no future rent concessions have been created which
are not disclosed in the Leases, the Rent Roll, Tenant Estoppels
or the Exhibits hereto, (D) to the Stockholder's knowledge, any
and all construction and improvements that were required to be
performed by the Company under any Lease have been fully
completed and accepted by each tenant, except under the Leases
and the Contracts designated with an asterisk in Exhibit R-C, and
all leasing commissions payable on account of any of the Leases
have been fully paid, except those which may become due in
connection with the extension or renewal of any Lease or in
connection with the exercise by any tenant of any expansion or
extension option contained in any of the Leases, (E) to the
Stockholder's knowledge, the Leases are in full force and effect
and (F) attached hereto as Exhibit R-H is a true and complete
list of all security deposits posted under the Leases together
with interest, if any, accrued thereon to the Closing Date. The
representations and warranties made in this Subsection
3.05(a)(iv)
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shall be deemed withdrawn as to each Lease for which Sub receives
a Tenant Estoppel on or before the Closing.
(v) Notices. To the Stockholder's knowledge, neither the
Stockholder nor the Company has received written notice or
citation:
(1) from any federal, state, county or municipal
authority alleging any fire, health, safety, building
pollution, environmental, zoning or other violation of any
law, regulation, permit, order or directive in respect of
the Property or any part thereof, which has not been
entirely corrected;
(2) from any insurance company or bonding company of
any defects or inadequacies in the Property or any part
thereof, which would materially adversely affect the
insurability of the same or of any termination or threatened
termination of any policy of insurance or bond; or
(3) from any governmental authority with respect to a
proposed eminent domain taking of all or any portion of the
Property.
(vi) Violation of Law. To the Stockholder's knowledge, all
governmental approvals required for the current use of the
Property have been issued and are currently in effect without
violation, to Stockholder's knowledge, the Property is not under
investigation for failure to comply with any statutes, laws,
ordinances, rules, regulations, orders or directives of any and
all governmental agencies pertaining to the use or occupancy of
the Property, and, to the Stockholder's knowledge, the Property
is in compliance with, and not in violation in any material
respect of, any applicable statutes, laws, ordinances, rules,
regulations, orders or directives; provided, however, that the
Stockholder makes no representation herein with respect to
compliance with the Americans with Disabilities Act or any rule,
regulation or interpretation promulgated thereunder.
(vii) Hazardous Materials. To the Stockholder's knowledge,
except as disclosed in (A) the Environmental Assessment Report
dated July 1989, prepared by Xxxxxxxxx Engineers for the Xxxxx
Building, and (B) the Environmental Assessment Report dated
November 5, 1996, prepared by IVI Environmental, Inc. for the
Xxxxx Building, there are no Hazardous Materials at the Property
except for ordinary cleaning, landscaping, maintenance, and
office supplies consistent with the use of the Property as an
office building which are used and stored in compliance with
applicable Environmental Laws, and to the Stockholder's
knowledge, neither the Company nor any tenant of the Real
Property during the Company's ownership thereof has previously
used, manufactured, generated, treated, stored, disposed of, or
released any Hazardous Materials on or under the Property or
transported any
384488.1
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Hazardous Materials over the Property in violation of any
applicable Environmental Laws. As used herein, (a) the term
"Environmental Laws" shall include, but not be limited to, the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended, 42 U.S.C. Section 9601 et seq., the
Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et
seq., the Hazardous Materials Transportation Act, 49 U.S.C.
Section 1801 et seq., the Federal Water Pollution Control Act, 33
U.S.C. Section 1251 et seq., the Clean Air Act, 42 U.S.C. Section
7401 et seq., the Toxic Substances Control Act, 15 U.S.C. ss.
2601, the Refuse Act, 33 U.S.C. Section 407 et seq., and any
other applicable similar state, federal, county, regional,
municipal or local law, statute, ordinance, rule or regulation
governing the control of substances dangerous to public health or
safety, as same may be amended from time to time; and (b) the
term "Hazardous Materials" shall include but not be limited to
asbestos-containing materials, polychlorinated biphenyls,
flammable materials, explosives, radioactive materials, petroleum
products and those materials or substances now or heretofore
defined as "hazardous substances," "hazardous materials,"
"hazardous waste," "toxic substances," or other similar
designations under the Environmental Laws.
(viii) Legal Proceedings. Except as set forth in Exhibit R-G
attached hereto, there are no actions, suits or proceedings,
pending, or, to the Stockholder's knowledge, threatened before
any court, commission, agency or other administrative authority
against, or affecting the Company or the Property. The Company
has not suffered or confessed any judgment in or before any such
court, commission, agency or other administrative authority
against which remains unsatisfied.
(ix) No Employees. The Company has never employed any person
as an employee.
(x) Leasing Commissions. Except as set forth on Exhibit R-F
hereto, no person is entitled to any leasing commission in
connection with the extension or renewal of any Lease or in
connection with the exercise by any tenant of any expansion or
extension option contained in any of the Leases. Neither the
Company nor the Property is subject to any "protection list" or
similar obligation with respect to the future leasing of the
Property except as set forth on Exhibit R-F hereto.
(xi) Assets and Liabilities. Other than the Property and the
Account, the Company has no assets. Other than the Contracts, the
Company Note, the Leases and the matters disclosed in Exhibits
R-E, R-F, R-G and R-H, the Company has no liabilities, whether
current, contingent or other.
(xii) The Account. (A) There is $40,000,000 on deposit in
the Account, (B) the Account is not subject to any pledge, claim,
offset or defense and (C) the Company has good and clear title to
the Account.
384488.1
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(xiii) No Liens; Acknowledgement. The Company owns all
Personal Property free and clear of all Liens except as set forth
in Exhibit R-H. The Company makes no representation or warranty
as to the ownership of either the bust of Xxxxx Xxxx Xxxxx or the
bronze lion sculptures located in the lobby of the Improvements.
(b) The Stockholder's Knowledge. Any and all uses of the phrases "to
Stockholder's knowledge" or other references to the Stockholder's knowledge in
this Agreement shall mean the actual, present, conscious knowledge of Xxxxx X.
Xxxxx, III and Xxxx Xxxxxx (the "Stockholder Knowledge Individuals") as to a
fact at the time given. The Parent and Sub acknowledge that, for purposes of the
representations and warranties set forth in this Agreement, such individuals
have not performed and are not obligated to perform any investigation or review
of any files in the possession of the Stockholder or the Company with respect to
the subject matter addressed in the representations and warranties of the
Stockholder set forth in this Agreement. The actual, present, conscious
knowledge of any other individual or entity shall not be imputed to the
Stockholder Knowledge Individuals.
Section 3.06. Brokerage Commission. The Stockholder and the Parent
each warrant to the other party that its sole contact with the other party or
the Property regarding this transaction has been directly with the other party
or with Lazard Freres & Co., LLC, Xxxxxxx & Xxxxxxxxx, Inc. or Xxxxxxxxx-Middle
Atlantic. The Parent shall be solely responsible for any investment fees or
commissions, payable to Lazard Freres in connection with the transactions
contemplated by this Agreement. The Stockholder shall be solely responsible for
any investment fees or commission payable to Xxxxxxx & Xxxxxxxxx, Inc. and
Xxxxxxxxx-Middle Atlantic in connection with the transactions contemplated by
this Agreement. The Parent and the Stockholder further warrant to each other
that no other broker or finder can properly claim a right to a commission or
finder's fee based upon contacts between the claimant and the warranting party
with respect to the other party or the Property. The Parent and the Stockholder
shall indemnify, defend and hold the other party harmless from and against any
loss, cost or expense, including, but not limited to, attorneys' fees and court
costs, resulting from any claim for a fee or commission by any broker or finder
in connection with the Property and this Agreement resulting from the
indemnifying party's actions. The foregoing indemnities shall survive the
Closing.
Section 3.07. Company Dividend. The parties hereto acknowledge that
the Board of Directors of the Company on November 4, 1996 declared a dividend
payable to shareholder of record of the Company on November 5, 1996.
Section 3.08. Transfer of Company Note. Immediately after the
Effective Time, the Stockholder shall assign and transfer the Company Note to
the Parent or its designee.
384488.1
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ARTICLE IV. CONDITIONS
Section 4.01. Conditions to the Merger. The respective obligations of
all parties to consummate the transactions contemplated by this Agreement shall
be subject to the fulfillment, at or prior to the Effective Time, of the
following conditions:
(a) Stockholder Approval. This Agreement and the transactions
contemplated hereby shall have been approved and adopted by the requisite
affirmative vote of the stockholder of the Company to the extent required
by Delaware Law and the Certificate of Incorporation of the Company.
(b) No Order. No statute, rule, regulation, order, executive order,
decree or injunction shall have been enacted, entered, promulgated or
enforced by any court or governmental authority which is in effect and has
the effect of prohibiting the consummation of the Merger (it being agreed
that each of the parties hereto shall use their respective best efforts to
have any such injunction lifted).
Section 4.02. Conditions to the Obligations of the Stockholder. The
obligations of the Stockholder under this Agreement shall be subject to the
satisfaction or waiver of the following conditions on or before the Closing
Date:
(a) Opinions of Parent's Counsel. The Stockholder shall have received
from Shearman & Sterling, counsel for the Parent and the Sub, and from
Lionel, Xxxxxx & Xxxxxxx, Nevada counsel for the Parent and the Sub,
opinions dated the Closing Date in form and substance satisfactory to the
Stockholder.
(b) Representations and Warranties Complete and Correct. The
representations and warranties of the Parent contained in Section 5.01
hereof shall have been complete and correct in all material respects as of
the Closing Date.
(c) Compliance with this Agreement. The Parent shall have performed
and complied in all material respects with all agreements, covenants and
conditions contained herein which are required to be performed or complied
with by it on or before the Closing Date.
(d) Officers' Certificate. The Stockholder shall have received a
certificate, dated the Closing Date and signed by the President or any Vice
President and attested by the Secretary of the Parent, certifying that the
conditions set forth in Sections 4.02(b) and 4.02(c) are satisfied on and
as of such date.
(e) Consents; Permits. The Parent shall have received all consents,
permits, approvals and other authorizations that may be required from, and
made all
384488.1
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such filings and declarations that may be required with, any person
pursuant to any law, statute, regulation or rule (federal, state, local and
foreign), or pursuant to any agreement, order or decree by which the Parent
or any of its assets is bound, in connection with the transactions
contemplated by this Agreement, except for (a) notice requirements which
may be fulfilled subsequent to the Closing Date and (b) consents, permits,
approvals, authorizations, filings and declarations the failure to obtain
or to undertake (i) could not have a Material Adverse Effect on the Parent
or (ii) could not adversely affect the ability of the Parent to perform its
obligations under the Basic Agreements or any agreement executed in
accordance therewith.
(f) Stockholders' Agreement. The Parent shall have executed and
delivered the Stockholders' Agreement.
(g) Rent Rolls. Rent rolls of the Parent, certified as of a recent
date by the Treasurer of the Parent as being true and complete in all
material respects to his knowledge.
(h) Supporting Documents. The Stockholder and its counsel shall have
received copies of the following documents:
(i) (A) the Charter, certified as of a recent date by the
appropriate authority of the Parent's jurisdiction of incorporation,
and (B) a certificate of such authority dated as of a recent date as
to the due incorporation and good standing of the Parent, the payment
of all franchise and excise taxes by the Parent and listing all
documents of the Parent on file with said authority;
(ii) a certificate of the Secretary or an Assistant Secretary of
the Parent dated the Closing Date and certifying: (A) that attached
thereto is a true and complete copy of the Bylaws of the Parent as in
effect on the date of such certification; (B) that attached thereto is
a true and complete copy of all resolutions adopted by the Board of
Directors or a committee thereof or the stockholders of the Parent
authorizing the execution, delivery and performance of the Basic
Agreements, the issuance, sale and delivery of the Preferred Shares
and the reservation, issuance and delivery of the Conversion Shares,
and that all such resolutions are in full force and effect and are all
the resolutions adopted in connection with the transactions
contemplated by the Basic Agreements; (C) that the Charter has not
been amended since the date of the last amendment or restatement
referred to in the certificate delivered pursuant to clause (i)(B)
above; (D) that the Bylaws have not been amended since the date of the
last amendment referred to in the certificate delivered pursuant to
clause (ii)(A) above; and (E) the incumbency and specimen signature of
each officer of the Parent executing any Basic Agreement, the
384488.1
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stock certificates representing the Preferred Shares and any
agreement, certificate or instrument furnished pursuant hereto, and a
certification by another officer of the Parent as to the incumbency
and signature of the officer signing the certificate referred to in
this clause (ii)(E); and
(iii) such additional supporting documents and other information
with respect to the operations and affairs of the Parent as the
Stockholder may reasonably request.
Section 4.03. Conditions to the Obligations of the Parent. The
obligations of the Parent under this Agreement shall be subject to the
satisfaction or waiver of the following conditions on or before the Closing
Date:
(a) Opinion of Stockholder's Counsel. The Parent shall have received
from counsel to the Company and the Stockholder, an opinion of counsel
dated the Closing Date in form and substance satisfactory to the Parent.
(b) Compliance with this Agreement. Each of the Company and the
Stockholder shall have performed and complied in all material respects with
all agreements, covenants and conditions contained herein which are
required to be performed or complied on or before the Closing Date.
(c) Company's and Stockholder's Representations and Warranties
Complete and Correct. The representations and warranties of the Company and
the Stockholder contained in Sections 3.05 and 5.02 of this Agreement shall
be complete and correct when made and shall be complete and correct at and
as of the Closing Date, after giving effect to the transaction contemplated
by this Agreement, as if made on and as of such date.
(d) Other Documentation. The Parent shall have received such
additional supporting documents and other information as the Parent may
reasonably request.
ARTICLE V. REPRESENTATIONS AND WARRANTIES
Section 5.01. Representations and Warranties of the Parent and the
Sub. Each of the Parent and Sub, jointly and severally, represents and warrants
to the Company and the Stockholder as follows:
(a) Organization, Good Standing and Qualification. Each of the Parent
and its Subsidiaries is a corporation duly organized, validly existing and
in good standing
384488.1
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under the laws of its jurisdiction of incorporation or organization, and
the Parent and its Subsidiaries has all requisite corporate power and
authority under such laws to own or lease and operate its properties and to
carry on its business as now conducted. The Parent and its Subsidiaries is
duly qualified or licensed to do business as a foreign corporation in good
standing in each jurisdiction in which the nature of the business
transacted by it or the character of the properties owned or leased by it
requires it to so qualify or be licensed, except where the failure to so
qualify or be licensed or be in good standing would not have a Material
Adverse Effect. Each of the Parent and Sub has the corporate power and
authority to execute, deliver and perform the Basic Agreements to which it
is a party, and the Parent has the corporate power and authority to issue,
sell and deliver the 8% Preferred Stock Series A and, upon conversion
thereof, to issue and deliver the Conversion Shares.
(b) Authorization, Enforceability. All corporate action on the part of
the Parent and Sub, and their respective officers, directors and
stockholders necessary for the authorization, execution and delivery of the
Basic Agreements, the performance of all obligations of the Parent and Sub
thereunder and the authorization, issuance, sale and delivery of the 8%
Preferred Stock Series A and the Conversion Shares has been taken or will
be taken prior to the Closing. Each of the Basic Agreements has been duly
authorized, executed and delivered by the Parent and Sub and constitutes
valid and legally binding obligations of the Parent, enforceable in
accordance with their respective terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and
by general principles of equity (whether enforcement is sought by
proceedings in equity or at law).
(c) No Conflict. The execution and delivery by the Parent and Sub of
the Basic Agreements to which they are a party, the performance by the
Parent and Sub of their respective obligations thereunder, the issuance,
sale and delivery of the 8% Preferred Stock Series A and, upon conversion
thereof, the issuance and delivery of the Conversion Shares, will not
violate any provision of law, the Charter or Bylaws of the Parent or Sub,
or, any order of any court or other agency of government, or conflict with,
result in a breach of or constitute (with notice or lapse of time or both)
a default under any indenture, agreement or other instrument by which the
Parent or Sub or any of their respective properties or assets is bound, or
result in the creation or imposition of any lien, charge, restriction,
claim or lien of any nature whatsoever known to the Parent or Sub upon any
of the properties or assets of the Parent or Sub.
(d) Outstanding Options, Etc. As of the Closing Date, there are not
outstanding any options, warrants, rights (including conversion or
preemptive rights) or agreements, orally or in writing, for the purchase or
acquisition from the Parent of any shares of its capital stock except for
(i) the conversion privileges of the 7%
384488.1
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Preferred Stock, and the 8% Preferred Stock Series A and (ii) options to
purchase up to 952,500 shares of Common Stock that have been issued to
directors and employees of the Parent.
(e) Valid Issuance of Securities. (i) The 8% Preferred Stock Series A
to be issued pursuant to this Agreement will be duly and validly issued,
fully paid and nonassessable. The Common Stock issuable upon conversion of
8% Preferred Stock Series A has been duly and validly reserved for
issuance, and upon issuance in accordance with the Charter, shall be duly
and validly issued, fully paid and non-assessable.
(ii) Neither the issuance, sale or delivery of the 8% Preferred Stock
Series A nor, upon the conversion thereof, the issuance or delivery of the
Conversion Shares is subject to any preemptive right of stockholders of the
Parent arising under law or the Charter or Bylaws of the Parent, to any
contractual right of first refusal or other right in favor of any person.
(f) Litigation. There is no action, suit, proceeding or investigation
pending or currently threatened against the Parent or Sub that questions
the validity of the Basic Agreements or the right of the Parent or Sub to
enter into them, or to consummate the transactions contemplated thereby, or
that might, either individually or in the aggregate, have a Material
Adverse Effect on the Parent, or result in any change in the current equity
ownership of the Parent, nor is the Parent aware that there is any basis
for the foregoing. The Parent is not a party or subject to the provisions
of any order, writ, injunction, judgment or decree of any court or
government agency or instrumentality. There is no action, suit, proceeding
or investigation by the Parent currently pending or which the Parent
intends to initiate.
(g) Governmental Consents. Assuming the accuracy of the
representations and warranties of the Stockholder and the Company set forth
in this Agreement, no consent, approval, order or authorization of, or
registration, qualification, designation, declaration or filing with, any
governmental authority on the part of the Parent or Sub is required in
connection with the consummation of the transactions contemplated by this
Agreement.
(h) Compliance with Law and Other Instruments. The Parent is not in
conflict with, or in default or violation of, (i) any law, rule,
regulation, order, judgment or decree applicable to it or by which any of
its property or assets is bound or affected, or (ii) any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise
or other instrument or obligation to which it is a party or by which the
Parent or any property or asset of the Parent is bound or affected, except
384488.1
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for any such conflicts, defaults or violations that would not, individually
or in the aggregate, have a Material Adverse Effect.
(i) Disclosure. The Parent has fully provided the Stockholder with all
the information which the Stockholder has requested for deciding whether to
undertake the transactions contemplated by this Agreement and all
information which the Parent believes is reasonably necessary to enable the
Stockholder to make such decision, including the Parent's Executive Summary
Book and Property Information Book, as amended or supplemented from time to
time prior to date hereof (collectively, the "Executive Summary"). Neither
the Executive Summary, this Agreement nor any other statement or
certificate made or delivered in connection herewith contains any untrue
statement of a material fact or omits to state a material fact necessary to
make the statements herein or therein not misleading, except that, with
respect to projections contained in the Executive Summary, the Parent
represents only that such projections were prepared in good faith and that
the Parent believes there is a reasonable basis for such projections.
(j) Securities Reports. All forms, reports, statements and other
documents filed by the Parent with the Commission were prepared in all
material respects in accordance with the requirements of applicable law and
did not at the time they were filed contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(k) Taxes. The Parent elected to be taxable as a real estate
investment trust for federal income tax purposes beginning in 1982, its
first year of existence. The Parent has filed all material income and
franchise tax returns required by applicable law to be filed by it, and has
timely paid all Taxes shown due on such returns. There is no agreement,
waiver or consent providing for an extension of time with respect to the
assessment of any tax or tax deficiency against the Parent. There is no
action, suit, proceeding, investigation, audit or claim now pending
against, or with respect to, the Parent in respect of any Taxes. The Parent
has not filed any agreement or consent under Section 341(f) of the Internal
Revenue Code of 1986, as amended.
(l) No Material Adverse Change. Subsequent to the respective dates as
of which information is given in the Parent's Form 10K for its fiscal year
ended December 31, 1995, its Form 10Qs for the first three fiscal quarters
of fiscal 1996 and its proxy statement for its June 20, 1996 meeting of
stockholders (the "Commission Filings") and prior to the Effective Time,
except as set forth in or contemplated by the Commission Filings and this
Agreement, (i) there has not been any material adverse change or any
development involving a prospective material
384488.1
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adverse change, in the business, properties, business prospects, condition
(financial or otherwise) or results of operations of the Parent or any
Subsidiary, arising for any reason whatsoever, (ii) neither the Parent nor
any Subsidiary has incurred or will incur any material liabilities or
obligations, direct or contingent, nor has the Parent or any Subsidiary
entered into nor will it enter into any material transactions other than
pursuant to this Agreement and the transactions referred to herein and the
acquisition of Xxx Xxxxxxx Xxxxxxx, Xxx Xxxx, Xxxxxxxx and (iii) neither
the Parent nor any Subsidiary has or will have purchased any of its
outstanding capital stock.
(m) Title to Properties. To the Parent's knowledge, the Parent and the
Subsidiaries have good and marketable title to all properties and assets
described in the Commission Filings or the Executive Summary as owned by
them, free and clear of all liens, security interests, pledges, charges,
encumbrances, mortgages, defects or restrictions, except such as are
described in the Commission Filings or the Executive Summary or such as do
not have a Material Adverse Effect. To the Parent's knowledge, the Parent
and each Subsidiary owns or leases all such properties as are necessary to
its operations as now conducted or as proposed to be conducted, except
where the failure to so own or lease would not have a Material Adverse
Effect.
(n) Compliance with Laws. To the Parent's knowledge, (a) the
operations of the Parent and each Subsidiary with respect to any real
property currently leased or owned or by any means controlled by it are in
compliance in all material respects with all applicable federal, state, and
local laws, ordinances, rules, and regulations relating to occupational
health and safety and the environment, and the Parent and each Subsidiary
has all licenses, permits and authorizations necessary to operate under all
such laws, ordinances, rules and regulations and are in compliance with all
terms and conditions of such licenses, permits and authorizations except
where the failure to comply would not have a Material Adverse Effect; (b)
neither the Parent nor any Subsidiary has authorized or conducted or has
knowledge of the generation, transportation, storage, use, treatment,
disposal or release of any hazardous substance, hazardous waste, hazardous
material, hazardous constituent, toxic substance, pollutant, contaminant,
petroleum product, natural gas, liquefied gas or synthetic gas defined or
regulated under any environmental law on, in or under any real property of
the Parent or any Subsidiary in any amount which has a Material Adverse
Effect; and (c) there is no pending or, to the best knowledge of the
Parent, any threatened claim, litigation or any administrative agency
proceeding, nor has the Parent or any Subsidiary received any written or
oral notice from any governmental entity or third party, that (i) alleges a
violation of any laws, ordinances, rules and regulations by the Parent or
such Subsidiary; (ii) alleges the Parent or such Subsidiary is a liable
party under the Comprehensive Environmental Response Compensation, and
Liability Act, 42 U.S.C. ss. 9601 et seq, or any state superfund law; (iii)
alleges possible contamination of the environment by the Parent or such
Subsidiary; or (iv) alleges
384488.1
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possible contamination of real property of the Parent or any Subsidiary or
any case which is likely to have a Material Adverse Effect.
(o) Losses. Since December 31, 1995, neither the Parent nor any
Subsidiary has sustained any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as disclosed in or contemplated by
the Commission Filings or the Executive Summary, which has a Material
Adverse Effect.
(p) Seattle Obligation. The Cumulative Preference Deficit (as defined
in and pursuant to the Partnership Agreement of Third University Limited
Partnership, dated as of October 3, 1986 and as amended to the date of this
Agreement) payable to Xxxxx Seattle Inc. is $8,107,590.86.
Section 5.02. Representations and Warranties of the Stockholder and
the Company. The Stockholder and the Company, jointly and severally, represent
and warrant to the Parent and Sub as follows:
(a) Incorporation and Authority of the Company and the Stockholder.
Each of the Company and the Stockholder is a corporation duly incorporated,
validly existing and in good standing under the laws of its jurisdiction of
incorporation or organization and has all necessary corporate power and
authority to enter into the Basic Agreements to which it is a party, to
carry out its obligations thereunder and to consummate the transactions
contemplated thereby. The execution and delivery by each of the Company and
the Stockholder of the Basic Agreements to which it is party, and the
consummation by each of the Company and the Stockholder of the transactions
contemplated thereby, have been duly authorized by all necessary corporate
action on the part of the Company and the Stockholder and no other
corporate proceedings on the part of the Company or the Stockholder are
necessary to authorize the Basic Agreements or to consummate the
transactions contemplated thereby. Each of the Company and the Stockholder
has duly executed and delivered each of the Basic Agreements to which it is
a party and, assuming due authorization, execution and delivery by the
other parties thereto, each of the Basic Agreements constitutes the legal,
valid and binding obligation of each of the Company and the Stockholder
enforceable against the Company and the Stockholder in accordance with
their respective terms. The restrictions on business combinations contained
in Section 203 of Delaware Law have been satisfied with respect to the
Merger.
(b) Organization and Qualification of the Company and the Stockholder.
(i) Each of the Company and the Stockholder has the requisite power and
authority and all necessary governmental approvals to own, lease and
operate its properties and
384488.1
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to carry on its business as it is now being conducted, except where the
failure to be so organized, existing or in good standing or to have such
power, authority and governmental approvals would not, individually or in
the aggregate, have a Material Adverse Effect. The Company is duly
qualified or licensed as a foreign corporation to do business, and is in
good standing, in each jurisdiction where the character of the properties
owned, leased or operated by it or the nature of its business makes such
qualification or licensing necessary, except for such failures to be so
qualified or licensed and in good standing that would not, individually or
in the aggregate, have a Material Adverse Effect. The Company does not
directly or indirectly own any equity or similar interest in, or any
interest convertible into or exchangeable or exercisable for, any equity or
similar interest in, any corporation, partnership, joint venture or other
business association or entity.
(ii) True, complete and correct copies of the Certificate of
Incorporation and Bylaws of the Company, each as in effect on the date
hereof, have been delivered by the Company to the Parent.
(c) Capital Stock of the Company. The authorized capital stock of the
Company consists of 1,000 shares of common stock ("Company Common Stock").
As of the date hereof, 100 shares of Company Common Stock are issued and
outstanding, all of which are validly issued, fully paid and nonassessable.
None of the issued and outstanding shares of Company Common Stock was
issued in violation of any preemptive rights. There are no options,
warrants, convertible securities or other rights, agreements, arrangements
or commitments of any character relating to the capital stock of the
Company or obligating the Company to issue or sell any shares of capital
stock of, or any other interest in, the Company. There are no outstanding
contractual obligations of the Company to repurchase, redeem or otherwise
acquire any shares of Company Common Stock or to provide funds to, or make
any investment (in the form of a loan, capital contribution or otherwise)
in, any other Person.
(d) Corporate Books and Records. The minute books of the Company
contain and properly reflect all proceedings of the stockholders, Boards of
Directors and all committees of the Boards of Directors of the Company.
Complete and accurate copies of all such minute books and of the stock
register of the Company have been provided or made available by the Company
to the Parent. The foregoing notwithstanding, copies of the minute books of
the Company made available by the Company to the Parent prior to the
Effective Time do not contain records of proceedings relating to the
consideration of the transactions contemplated by this Agreement or the
alternatives thereto considered by the Boards of Directors (or committees
thereof) of the Company in the discharge of their fiduciary duties.
384488.1
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(e) Taxes. The Company is a qualified REIT subsidiary within the
meaning of Section 856(i) of the Code. The Company has filed all material
income and franchise tax returns required by applicable law to be filed by
it, and has timely paid all Taxes shown due on such returns. There is no
agreement, waiver or consent providing for an extension of time with
respect to the assessment of any Taxes or tax deficiency against the
Company. There is no action, suit, proceeding, investigation, audit or
claim now pending against, or with respect to the Company in respect of any
Taxes. The Company has not filed any agreement or consent under Section
341(f) of the Internal Revenue Code of 1986, as amended. The Company has no
built-in gain within the meaning of Internal Revenue Service Notice 88-19.
There are no tax liens on any assets or any subsidiaries of the Company.
Neither the Stockholder nor any affiliate is a party to any agreement or
arrangement that would result, separately or in the aggregate, in the
actual or deemed payment by the Company or a Company subsidiary of any
"excess parachute payments" within the meaning of Section 280G of the Code.
(f) Vote Required. The affirmative vote of the holders of Company
Common Stock, is the only vote of the holders of any class or series of
capital stock of the Company necessary to approve the Merger.
(g) Full Disclosure. No representation or warranty of the Company or
the Stockholder in this Agreement, nor any statement or certificate
furnished or to be furnished to the Parent pursuant to this Agreement, or
in connection with the transactions contemplated by this Agreement,
contains or will contain any untrue statement of a material fact, or omits
or will omit to state a material fact necessary to make the statements
contained herein or therein not misleading.
(h) Purchase Entirely for Own Account. The 8% Preferred Stock Series A
will be acquired for investment for the Stockholder's own account, not as a
nominee or agent, and not with a view to the resale or distribution of any
part thereof, and the Stockholder has no present intention of selling,
granting any participation in, or otherwise distributing the same. The
Stockholder further represents that the Stockholder does not presently have
any contract, undertaking, agreement or arrangement with any person to
sell, transfer or grant participation to such person or to any third
person, with respect to any of the 8% Preferred Stock Series A.
(i) Investment Experience. The Stockholder is an experienced investor
and acknowledges that it can bear the economic risk of its investment and
has such knowledge and experience in financial or business matters that it
is capable of evaluating the merits and risks of the investment in the 8%
Preferred Stock Series A. The Stockholder also represents it has not been
organized for the purpose of acquiring the 8% Preferred Stock Series A.
384488.1
-26-
(j) Restricted Securities. The Stockholder understands that the 8%
Preferred Stock Series A, and the shares of Common Stock issuable upon
conversion thereof, are characterized as "restricted securities" under the
federal securities laws inasmuch as they are being acquired from the Parent
in a transaction not involving a public offering and that under such laws
and applicable regulations such shares may be resold without registration
under the 1933 Act only in certain limited circumstances. In this
connection, the Stockholder represents that it is familiar with SEC Rules
144 and 144A, as presently in effect, and understands the resale
limitations imposed thereby and otherwise by the 1933 Act.
(k) Access to Information. The Stockholder has had access to the
management and records of the Parent and has had an opportunity to ask
questions of management of the Parent regarding its business and affairs.
ARTICLE VI. COVENANTS OF THE PARENT
The Parent covenants and agrees with the Stockholder that, so long as
any of the 8% Preferred Stock Series A are outstanding:
Section 6.01. Financial Statements, Reports, Etc. So long as the
Stockholder owns shares of 8% Preferred Stock Series A, the Parent shall furnish
to the Stockholder, within 30 days after the Parent files with the Commission,
copies of its annual reports and other information, documents and reports (or
copies of such portions of any of the foregoing as the Commission may by rules
and regulations prescribe) that it is required to file with the Commission
pursuant to Section 13 or 14 of the 1934 Act.
Section 6.02. Reserve for Conversion Shares. The Parent shall at all
times reserve and keep available out of its authorized but unissued shares of
Common Stock, for the purpose of effecting the conversion of the 8% Preferred
Stock Series A, such number of its duly authorized shares of Common Stock as
shall be sufficient to effect the conversion of the 8% Preferred Stock Series A
from time to time outstanding. If at any time the number of authorized but
unissued shares of Common Stock shall not be sufficient to effect the conversion
of the 8% Preferred Stock Series A, the Parent shall forthwith take such
corporate action as may be necessary to increase its authorized but unissued
shares of Common Stock to such number of shares as shall be sufficient for such
purpose. The Parent shall obtain any authorization, consent, approval or other
action by or make any filing with any court or administrative body that may be
required under applicable state securities laws in connection with the issuance
of shares of Common Stock upon conversion of the 8% Preferred Stock Series A.
384488.1
-27-
Section 6.03. Debt Restriction. The Parent shall not Incur any Debt
unless after giving effect to such Incurrence the Debt of the Parent will not
exceed 60% of the appraised value of the assets of the Parent; provided that,
notwithstanding the foregoing, the Parent may at any time Incur Debt in an
amount which does not exceed the principal amount of outstanding Debt of the
Parent extended, refinanced, renewed or replaced with the proceeds thereof, plus
any costs associated with the extension, refinancing, renewal or replacement.
Section 6.04. Payment of Dividends on the 7% Preferred Stock and the
8% Preferred Stock. For so long as any 8% Preferred Stock Series A remains
outstanding, the Parent shall continue to pay dividends on the 7% Preferred
Stock and the 8% Preferred Stock in good faith so long as it has funds available
therefor.
ARTICLE VII. SURVIVAL OF REPRESENTATIONS; INDEMNITY
Section 7.01. Survival. Each and every representation and warranty
contained in this Agreement shall survive the Closing and shall not merge into
the documents delivered at the Closing, but instead shall be independently
enforceable except to the extent expressly limited herein; provided, however,
each of the representations and warranties of the Stockholder contained in
Sections 3.05(a)(i) through (vii), (x) and (xiii) shall terminate on the first
anniversary of the Closing Date and each of the other representations of the
Stockholder and each of the representations of the Parent shall terminate on the
sixth anniversary of the Closing Date. No party to this Agreement shall be
permitted to make any claim against any other party for breach of representation
or warranty unless the amount claimed in good faith by the claiming party
exceeds in the aggregate $10,000.
Section 7.02. Indemnification by the Stockholder. The Stockholder
shall indemnify and hold each of the Parent and Sub harmless against any and all
claims, losses, damages, penalties, fines, forfeitures, reasonable attorneys'
fees and expenses and related costs, expenses of litigation, judgments, and any
other costs, fees and expenses resulting from (i) a breach of a representation
or warranty made by the Stockholder or the Company under this Agreement, (ii)
all Taxes that may be imposed or asserted with respect to the Company or its
assets or operations in respect of any period or portion thereof ending on or
before the Closing Date, and any Taxes arising as a result of the Merger
(whether in accordance with Internal Revenue Service Notice 88-19, under Section
1445 of the Code, or otherwise), or (iii) an action, suit or proceeding brought
or filed against the Company, the Parent or Sub based on acts or omissions of
the Company occurring prior to the Closing Date.
Section 7.03. Indemnification by the Parent. The Parent shall
indemnify and hold the Stockholder harmless against any and all claims, losses,
damages, penalties, fines,
384488.1
-28-
forfeitures, reasonable attorneys' fees and expenses and related costs, expenses
of litigation, judgments, and any other costs, fees and expenses resulting from
a breach of a representation or warranty made by the Parent under this
Agreement.
Section 7.04. Indemnification Procedures. Promptly after receipt by an
indemnified party under this Article VII of notice of the commencement of any
action such indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under this Article VII, notify the indemnifying
party in writing of the commencement thereof; provided, however, that the
failure so to notify the indemnifying party will not relieve it from any
liability which it may have under this Article VII except to the extent it has
been materially prejudiced by such failure and, provided, further, that the
failure to notify the indemnifying party shall not relieve the indemnifying
party from any liability which it may have to any indemnified party otherwise
than under this Article VII. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and to
the extent that it may wish, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party). After notice
from the indemnifying party to such indemnified party of its election so to
assume the defense of such claim or action, the indemnifying party will not be
liable to such indemnified party under this Article VII for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided, that the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict or potential conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the indemnified party
and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, (iii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of the commencement of such action or (iv)
the indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. No indemnifying party shall be
liable for any settlement of any action or claim for monetary damages which an
indemnified party may effect without the consent of the indemnifying party,
which consent shall not be unreasonably withheld. The indemnification
obligations hereunder are payable as they are incurred.
384488.1
-29-
ARTICLE VIII. MISCELLANEOUS
Section 8.01. Expenses. The Parent agrees to pay on demand all
reasonable out-of-pocket costs and expenses of the Stockholder in connection
with the execution and delivery of the Basic Agreements and the other documents
to be delivered under the Basic Agreements.
Section 8.02. Assignment. This Agreement may not be assigned by
operation of law or otherwise without the express written consent of each of the
parties hereto.
Section 8.03. Benefit; Successors and Assigns. Except as otherwise
provided herein, this Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and permitted
assigns; provided, however, that this Agreement shall not inure to the benefit
of any successor or assignee unless such assignee shall have complied with the
terms of Section 8.02. Nothing in this Agreement either express or implied is
intended to confer on any person, other than the parties hereto and their
respective successors and permitted assigns, any rights, remedies or obligations
under or by reason of this Agreement.
Section 8.04. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or equity.
Section 8.05. Notices. All notices, requests, consents and other
communications hereunder shall be in writing and shall be delivered in person or
mailed by certified or registered mail, return receipt requested, or telecopied
in the case of non-U.S. residents, addressed as follows:
(a) if to the Parent or the Sub:
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
Fax: (000) 000-0000
384488.1
-30-
with a copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: X. X. Xxxxx, Xx.
Fax: (000) 000-0000
(b) if to the Stockholder or the Company:
CGR Advisors
000 Xxxx Xxxxx Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx XX 00000-0000
Attention: President
Fax: (000) 000-0000
with a copy to:
Xxxxxx, Golden & Xxxxxxx
2800 One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxx
Fax: (000) 000-0000
or, in any such case, at such other address or addresses as shall have been
furnished in writing by such party to the others. All notices, requests,
consents and other communications hereunder shall be deemed to have been duly
given or served on the date on which personally delivered or on the date
actually received, if sent by mail, telecopier or telex, with receipt
acknowledged.
Section 8.06. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
Section 8.07. Entire Agreement. This Agreement, including the
Schedules and Exhibits hereto, constitutes the sole and entire agreement of the
parties with respect to the subject matter hereof. All Schedules and Exhibits
hereto are hereby incorporated herein by reference.
384488.1
-31-
Section 8.08. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 8.09. Amendments. This Agreement may not be amended or
modified, and no provisions hereof may be waived, without the written consent of
the Parent and the Stockholder.
Section 8.10. Severability. If any provision of this Agreement shall
be declared void or unenforceable by any judicial or administrative authority,
the validity of any other provision and of the entire Agreement shall not be
affected thereby.
Section 8.11. Titles and Subtitles. The titles and subtitles used in
this Agreement are for convenience only and are not to be considered in
construing or interpreting any term or provision of this Agreement.
Section 8.12. Further Assurances. From and after the date of this
Agreement, upon the request of the Parent or the Stockholder, the Parent and the
Stockholder shall execute and deliver such instruments, documents and other
writings as may be reasonably necessary or desirable to confirm and carry out
and to effectuate fully the intent and purposes of this Agreement.
384488.1
-32-
IN WITNESS WHEREOF, the Parent, Sub, the Company and the Stockholder
have executed this Agreement as of the day and year first above written.
CORNERSTONE PROPERTIES INC.
By:
Name:
Title:
CSTONE-PITTSBURGH TRUST
By:
Name:
Title:
HEXALON REAL ESTATE, INC.
By:
Name:
Title:
XXXXX BUILDING INC.
By:
Name:
Title:
384488.1
-33-
EXHIBIT A
[Stockholders' Agreement Filed as Exhibit 99.2 herewith]
384488.1
EXHIBIT B
STATE OF MARYLAND
482641
STATE DEPARTMENT OF
ASSESSMENTS AND TAXATION
000 Xxxx Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxxxxxx 00000
I, XXXX XXXX-XXXXX ___________ OF THE STATE DEPARTMENT OF ASSESSMENTS
AND TAXATION OF THE STATE OF MARYLAND, DO HEREBY CERTIFY THAT SAID DEPARTMENT,
BY THE LAWS OF SAID STATE, IS THE CUSTODIAN OF THE RECORDS OF THIS STATE
RELATING TO THE FORFEITURE OR SUSPENSION OF CORPORATE CHARTERS, OR OF
CORPORATIONS TO TRANSACTION BUSINESS IN THIS STATE; AND I AM THE PROPER OFFICER
TO EXECUTE THIS CERTIFICATE.
I FURTHER CERTIFY THAT CSTONE-PITTSBURGH TRUST ________________ IS A
CORPORATION DULY INCORPORATED AND EXISTING UNDER AND BY VIRTUE OF THE LAWS OF
___________ MARYLAND ____________ AND SAID CORPORATION HAS FILED ALL ANNUAL
REPORTS REQUIRED, HAS NO OUTSTANDING LATE FILING PENALTIES ON THOSE REPORTS, AND
HAS A RESIDENT AGENT. THEREFORE, THE CORPORATION IS AT THE TIME OF THIS
CERTIFICATE IN GOOD STANDING WITH THIS DEPARTMENT AND DULY AUTHORIZED TO
EXERCISE ALL THE POWERS RECITED IN ITS CHARTER OF CERTIFICATE OF INCORPORATION,
AND TO TRANSACT BUSINESS IN THE STATE OF MARYLAND.
IN THIS DOCUMENT THE WORD CORPORATION SHOULD BE INTERPRETED TO MEAN REAL ESTATE
INVESTMENT TRUST, CHARTER TO MEAN DECLARATION OF TRUST AND INCORPORATED TO MEAN
FORMED.
IN WITNESS WHEREOF, I HAVE HEREUNTO SET
MY HAND AND AFFIXED THE SEAL OF THE STATE
DEPARTMENT OF ASSESSMENT AND TAXATION OF
MARYLAND AT BALTIMORE THIS 4TH DAY OF
NOVEMBER, 1996.
[STATE SEAL] XXXX XXXX-XXXXX
OFFICE SUPERVISOR II
384488.1
EXHIBIT C
[Certificate of Designation for the 8% Preferred Stock Series A
Filed as Exhibit 99.3 herewith]
384488.1
EXHIBIT "R-A"
Xxxxx Building, Inc. - TICOR Title Policy Legal
All that certain lot or piece of ground situate in the 2nd Xxxx of the City of
Pittsburgh, County of Allegheny and Commonwealth of Pennsylvania, being more
particularly bounded and described as follows, to-wit:
BEGINNING at the point formed by the intersection of the Southwesterly line of
Fifth Avenue (60.07 feet wide) and the Northwesterly line of Grant Street
(80.109 feet wide); thence along the Xxxxxxxxxxxxx xxxx xx Xxxxx Xxxxxx, Xxxxx
00 degrees 56' 40" West, a distance of 226.12 feet to a point; thence along the
Northeasterly line of Forbes Avenue (55.47 feet wide), formerly Diamond Street,
North 59(0) 57' 20" West, a distance of 100.54 feet to a point; thence along the
Southeasterly line of Scrip Way (20.02 feet wide), North 30 degrees 58' 40"
East, a distance of 226.03 feet to a point; and thence along the Southwesterly
line of Fifth Avenue, South 60 degrees 00' 20" East, a distance of 100.43 feet
to the point at the place of beginning.
BEING designated as Block 2-E, Lot 160 in the Deed Registry Office of Allegheny
County, Pennsylvania.
Being the same property acquired by Xxxxx Building, Inc., under and by virtue of
deed from 000 Xxxxx Xxxxxx Partners, Ltd. a Pennsylvania limited partnership,
dated July 26, 1989 and recorded August 1, 1989 in the Recorder's Office of
Allegheny County, Pennsylvania in Deed Book Volume 8068, Page 265.
384488.1
EXHIBIT R-B
THE XXXXX BUILDING
PERSONAL PROPERTY LIST
General Building
Appliances
Bathroom accessories
Vertical blinds
Horizontal blinds
Carpet
Curtains and curtain track
Built-in cabinets
Drinking fountains
Special doors
Special hardware
Fire extinguishers
Exit lights
Moveable partitions
Toilet partitions
Shelves
Insert Lenses
HVAC Wall Units
Communications system
Mechanical equipment
Doors and hardware
Bronze Telephone Booths (4) in Lobby
Marble Cutting Machine
Plants and Containers
Lobby Directory Boards
Management Office
Xxxxxx Word Processor
Xerox 6010 memory typewriter
Telrad Electronic Phone System
Xerox Copier
Facsimile Machine
Conference room table and chairs (7)
Round table and chairs (6)
Receptionist's desk and chair
Manager's desk and chair
Filing cabinets (4)
Reception area chairs (4)
Stereo system
Christmas decorations (storage)
Books/chairs/pictures (storage)
Artwork (collage and print)
384488.1
EXHIBIT R-D
FORM OF NON-FOREIGN CERTIFICATE
NON-FOREIGN CERTIFICATE
THE XXXXX BUILDING
PITTSBURGH, PENNSYLVANIA
To inform Cornerstone Properties Inc., a Nevada corporation (the
"Transferee"), that withholding of tax under Section 1445 of the Internal
Revenue Code of 1986, as amended (the "Code"), will not be required upon the
transfer of certain real property to the Transferee by _____________, a
_________________ (the "Transferor"), the undersigned hereby certifies the
following on behalf of the Transferor:
1. The Transferor is not a foreign corporation, foreign partnership,
foreign trust, or foreign estate (as those terms are defined in the Code and the
Income Tax Regulations promulgated thereunder);
2. The Transferor's U.S. employer identification number is __________;
and
3. The Transferor's office address is:
The Transferor understands that this Certificate may be disclosed to the
Internal Revenue Service by the Transferee and that any false statement
contained herein could be punished by fine, imprisonment or both.
384488.1
Under penalty of perjury, I declare that I have examined this
Certificate and to the best of my knowledge and belief it is true, correct and
complete, and I further declare that I have authority to sign this document on
behalf of the Transferor.
Date: November __, 1996
"TRANSFEROR"
XXXXX BUILDING, INC.
By: _____________________
Name:
Title:
384488.1
EXHIBIT R-E
FORM OF TENANT ESTOPPEL
To: Cornerstone Properties Inc. ("Buyer")
Re: The Xxxxx Building, Pittsburgh, Pennsylvania (the "Property")
The undersigned ______________________________, a _____________
("Tenant"), is the tenant under that certain lease dated _____________ (the
"Lease," which term shall include the amendments, if any, referred to below) by
and between Tenant and Xxxxx Building, Inc., as lessor ("Landlord"), covering
premises commonly known as [Suite ____________] in the Property (the "Leased
Premises"). Tenant hereby certifies the following as of the date hereof:
1. Tenant is the tenant under the Lease demising the Leased Premises.
The term of the Lease commenced on ___________________ and will expire on
_________________.
2. Tenant certifies to Buyer that:
i. the Lease is in full force and effect and has not been
cancelled, modified, assigned, extended or amended except as
follows:
ii. the current monthly rent for the Leased Premises as of
___________ is $_______ and has been paid through
__________________;
iii. the total current additional/escalation rent for common area
maintenance, real estate taxes, insurance and the like (all
charges other than fixed rent) as of October 1, 1996 is
$_______ and such additional rent is payable monthly;
iv. no installment of rent under the Lease has been paid more
than thirty (30) days in advance;
v. the Lease has been neither assigned nor any portion of the
Leased Premises subleased by Tenant except as follows:
vi. Tenant has no existing defenses, offsets, deductions, liens,
claims or credits against the rentals under the Lease or
against the enforcement of the Lease by
384488.1
Landlord, and, to the best of Tenant's knowledge, Landlord
is not in default under the Lease; and
vii. Tenant has paid a security deposit in the amount of
$___________.
3. This certification is made to induce Buyer to acquire the Property
of which the Leased Premises are part. Tenant further acknowledges and agrees
that the addressees hereof and their respective successors and assigns and the
holder of any mortgage at any time encumbering the Property from and after the
date of this Tenant Estoppel Certificate shall have the right to rely on this
Tenant Estoppel Certificate.
4. Tenant acknowledges that in connection with the sale of the
Property by Landlord to Buyer all of the interest of the Landlord in and to the
Lease will be duly assigned to Buyer and that, after notice from Landlord and
Buyer, all rent payments under the Lease shall be paid to Buyer or its
authorized agent, from and after the date of sale.
5. The undersigned is authorized to execute this Tenant Estoppel
Certificate on behalf of Tenant.
Dated this ___ day of ___________, 1996.
[Tenant]
By:_________________________
Name:
Title:
384488.1
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EXHIBIT R-F
THE XXXXX BUILDING
LEASING COMMISSIONS
TENANT SPACE COMMISSIONS DUE
Xxxxxxx Xxxxxx 803 $250.00*
Commissions which may become due under and by virtue of that certain Real Estate
Leasing and Management Agreement ("Management Agreement") between Xxxxx
Building, Inc. and Xxxxxxxxx-Middle Atlantic, dated August 1, 1995, on or after
November ___, 1996 ("Closing Date") as a result of any extension or renewal of
any leases or in connection with the exercise, on or after the Closing Date, of
any expansion or extension option contained in any leases respecting the Xxxxx
Building.
Any "protection list" or similar obligation with respect to the future leasing
of the property in accordance with the Management Agreement.
* Estimated as of closing.
384488.1
EXHIBIT R-H
THE XXXXX BUILDING
LIENS ON PERSONAL PROPERTY
1. Matters as shown on Title Insurance Commitment (Case No. 181901)
issued by Lawyers Title Insurance Corporation in connection with the
Xxxxx Building located in Pittsburgh, PA., effective October 15, 1996,
as may be amended from time to time, and such matters as will
ultimately be shown in Schedule B of the Owner's Title Insurance
Policy to be issued in connection with the merger of Xxxxx Building,
Inc. and Cornerstone Properties, Inc.
384488.1
AGREEMENT AND PLAN OF MERGER
AMONG
CORNERSTONE PROPERTIES INC.,
CSTONE - PITTSBURGH TRUST,
XXXXX BUILDING, INC.
AND
HEXALON REAL ESTATE, INC.
DATED AS OF NOVEMBER 7, 1996
384488.1
TABLE OF CONTENTS
PAGE
ARTICLE I. DEFINITIONS....................................................... 1
Section 1.01 Definitions........................................... 1
ARTICLE II. THE MERGER....................................................... 6
Section 2.01. The Merger............................................ 6
Section 2.02. Effective Time; Closing............................... 6
Section 2.03. Effect of the Merger.................................. 6
Section 2.04. Certificate of Formation; Bylaws...................... 6
Section 2.05. Directors and Officers................................ 7
Section 2.06. Conversion of Company Shares.......................... 7
Section 2.07. Conversion of Sub Common Stock........................ 7
ARTICLE III. CERTAIN MATTERS PERTAINING TO REAL ESTATE AND THE COMPANY....... 7
Section 3.01. Delivery of Materials for Review...................... 7
Section 3.02. As-Is Clause.......................................... 7
Section 3.03. Closing Deliveries.................................... 8
Section 3.04. Closing Costs and Prorations.......................... 9
Section 3.05. Stockholder's Representations and Warranties..........12
Section 3.06. Brokerage Commission..................................15
Section 3.07. Company Dividend......................................16
Section 3.08. Transfer of Company Note..............................16
ARTICLE IV. CONDITIONS.......................................................16
Section 4.01. Conditions to the Merger..............................16
Section 4.02. Conditions to the Obligations of the Stockholder......16
Section 4.03. Conditions to the Obligations of the Parent...........18
ARTICLE V. REPRESENTATIONS AND WARRANTIES....................................18
Section 5.01. Representations and Warranties of the Parent
and the Sub...........................................18
Section 5.02. Representations and Warranties of the Stockholder
and the Company.......................................23
ARTICLE VI. COVENANTS OF THE PARENT..........................................26
Section 6.01. Financial Statements, Reports, Etc....................26
Section 6.02. Reserve for Conversion Shares.........................26
Section 6.03. Debt Restriction......................................26
Section 6.04. Payment of Dividends on the 7% Preferred Stock
and the 8% Preferred Stock............................26
ARTICLE VII. SURVIVAL OF REPRESENTATIONS; INDEMNITY..........................27
Section 7.01. Survival..............................................27
Section 7.02. Indemnification by the Stockholder....................27
384488.1
PAGE
Section 7.03. Indemnification by the Parent.........................27
Section 7.04. Indemnification Procedures............................27
ARTICLE VIII. MISCELLANEOUS..................................................28
Section 8.01. Expenses..............................................28
Section 8.02. Assignment............................................28
Section 8.03. Benefit; Successors and Assigns.......................28
Section 8.04. Specific Performance..................................29
Section 8.05. Notices...............................................29
Section 8.06. Governing Law.........................................30
Section 8.07. Entire Agreement......................................30
Section 8.08. Counterparts..........................................30
Section 8.09. Amendments............................................30
Section 8.10. Severability..........................................30
Section 8.11. Titles and Subtitles..................................30
Section 8.12. Further Assurances....................................30
EXHIBIT A Stockholders' Agreement filed as Exhibit 99.2 herewith
EXHIBIT B State of Maryland, State Dept. of Assessments and Taxation
EXHIBIT C Certificate of Designation for the 8% Preferred Stock Series filed
as Exhibit 99.3 herewith
EXHIBIT X-X Xxxxx Building, Inc. - TICOR Title Policy Legal
EXHIBIT R-B The Xxxxx Building Personal Properly List
EXHIBIT R-C The Xxxxx Building Outstanding Tenant Improvement Allowances and
Service Contracts as of October 31, 1996*
EXHIBIT R-D Form of Non-Foreign Certificate
EXHIBIT R-E Form of Tenant Estoppel
EXHIBIT R-F The Xxxxx Building Leasing Commissions
EXHIBIT R-G The Xxxxx Building Litigation*
EXHIBIT R-H The Xxxxx Building Liens on Personal Property
EXHIBIT R-I The Xxxxx Building Security Deposits*
*Exhibit omitted as immaterial
384488.1
ii
