Exhibit 10.4
--------------------------------------------------------------------------------
STOCK PURCHASE AGREEMENT
Among
CarrAmerica Realty Corporation,
OmniOffices (UK) Limited (solely for purposes of Article II,
Article IV and Article V)
and
OmniOffices (Lux) 1929 Holding Company S.A. (solely for purposes of Article II,
Article IV
and Article V),
on the one hand
and
VANTAS Incorporated,
Reckson Services Industries, Inc.
(solely for purposes of Section 5.4, 6.2 and Article XXI)
on the other hand
Dated as of January 20, 2000
--------------------------------------------------------------------------------
Table of Contents
PAGE
ARTICLE I
The Transactions
Section 1.1 The Transactions...................................................2
Section 1.2 The Closing........................................................2
ARTICLE II
Representations and Warranties of CarrAmerica, OMNI UK and LuxCo
Section 2.1 Organization and Standing; Books and Records.......................2
Section 2.2 Authority..........................................................3
Section 2.3 No Conflicts; Consents.............................................3
Section 2.4 Capital Stock of the Companies.....................................4
Section 2.5 Equity Interests...................................................5
Section 2.6 Investment Companies...............................................5
Section 2.7 Restrictions and Agreements........................................5
Section 2.8 Financial Statements; Undisclosed Liabilities......................5
Section 2.9 Absence of Changes or Events.......................................6
Section 2.10 Taxes.............................................................7
Section 2.11 Assets Other than Real Property Interests.........................8
Section 2.12 Real Property.....................................................8
Section 2.13 Contracts........................................................11
Section 2.14 Litigation.......................................................13
Section 2.15 Insurance........................................................13
Section 2.16 Benefit Plans....................................................13
Section 2.17 Compliance with Applicable Laws..................................15
Section 2.18 Labor Matters....................................................15
Section 2.19 Transactions with Affiliates.....................................16
Section 2.20 Corporate Name...................................................16
Section 2.21 Customers........................................................16
Section 2.22 Intellectual Property............................................16
Section 2.24 Brokers..........................................................19
Section 2.25 Competition......................................................19
Section 2.26 Data Protection..................................................19
Section 2.27 Equivalence......................................................19
ARTICLE III
Representations and Warranties of VANTAS
Section 3.1 Organization and Standing.........................................20
Section 3.2 Authority.........................................................21
Section 3.3 No Conflicts; Consents............................................21
ARTICLE IV
Agreements of OMNI UK and LuxCo
Section 4.1...................................................................21
ARTICLE V
Mutual Covenants
Section 5.1 Consummation of the Transactions..................................25
Section 5.2 Publicity.........................................................25
ARTICLE VI
Conditions to Closing
Section 6.1 Each Party's Obligation...........................................26
Section 6.2 CarrAmerica's Obligation..........................................26
Section 6.3 VANTAS' Obligation................................................26
Section 6.4 Frustration of Closing Conditions.................................27
ARTICLE VII
Further Assurances............................................................27
ARTICLE VIII
Assignment....................................................................27
ARTICLE IX
Third-Party Beneficiaries.....................................................28
ARTICLE X
Termination...................................................................28
ARTICLE XI
Intentionally Omitted
ARTICLE XII
Amendments....................................................................29
ARTICLE XIII
Notices.......................................................................29
ARTICLE XIV
Interpretation; Exhibits and Schedules........................................31
ARTICLE XV
Counterparts..................................................................31
ARTICLE XVI
Litigation Costs..............................................................31
ARTICLE XVII
Entire Agreement..............................................................32
ARTICLE XVIII
Intentionally Omitted
ARTICLE XIX
Severability..................................................................32
ARTICLE XX
Consent to Jurisdiction.......................................................32
ARTICLE XXI
Governing Law.................................................................33
ARTICLE XXII
Disclosure Schedules..........................................................33
ARTICLE XXIII
Exclusive Remedy..............................................................33
SCHEDULES AND EXHIBITS
Exhibit A Shares
Exhibit B Notes
Schedule 2.1 Organization and Standing; Books and Records
Schedule 2.4 Capital Stock of the Companies
Schedule 2.5 Equity Interests
Schedule 2.7 Restrictions and Agreements
Schedule 2.8 Financial Statements; Undisclosed Liabilities
Schedule 2.9 Absence of Changes or Events
Schedule 2.11 Assets Other than Real Property Interests
Schedule 2.12 Real Property
Schedule 2.13 Contracts
Schedule 2.14 Litigation
Schedule 2.15 Insurance
Schedule 2.16 Benefit Plans
Schedule 2.17 Compliance with Applicable Laws
Schedule 2.18 Labor Matters
Schedule 2.19 Transactions with Affiliates
Schedule 2.21 Customers
Schedule 2.22 Intellectual Property
Schedule 2.23 Environmental Liability
INDEX TO DEFINED TERMS
Term Page Number
---- -----------
Affiliate 16
Agreement 1
Applicable Laws 14
Assumption Agreement 26
Balance Sheets 6
Benefit Plans 14
Bona Fide Purchaser 4
Buyer 1
Cap Ex Budgets 22
CarrAmerica 1
Closing 2
Closing Date 2
Companies 1
Consideration
Contracts 13
Control 16
Controlled 16
Controlling 16
Customers 16
Environment 17
Financial Statements 6
Financing Materials 21
Governmental Entity 4
Hazardous Substance 17
HQ 1
HQ Merger 1
Inland Revenue 7
Intellectual Property 16
Investment Company Act 5
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ 16
▇▇▇▇▇▇▇ ▇▇▇▇▇ Hampton Group Limited 16
Loan Consideration 2
Loan Notes 26
Loans 1
LuxCo 1
LuxCo Owned Properties 9
LuxCo Property(ies) 9
LuxCo Real Property Lease 9
Lux Non-Voting Common Stock 1
MAM Investment 19
Material Adverse Effect 3
Merger Agreement 1
Notes 1
Offices in the City of Vienna 16
Omni Offices 16
Omni Offices (LUX) 1929 Holding Company S.A. 16
OmniUK 1
OmniUK Property(ies) 9
OmniUK Real Property Lease 9
Permit 17
Permitted Liens 8
Phantom 3
Pre-Closing Tax Period 7
Relevant Law 17
RSI 1
Seller 1
Share Consideration 1
Shares 1
Summary 25
Stock Purchase Agreement 1
Subsidiary 3
Tax 7
Taxes 7
Tax Return 7
Total Consideration 2
UK Non-Voting Common Stock 1
VANTAS 1
STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of January 20, 2000
between CarrAmerica Realty Corporation, a Maryland corporation ("CarrAmerica"
or "Seller"), OmniOffices (UK) Limited, a corporation formed under the laws of
England ("Omni UK") (solely for purposes of Article II, Article IV and Article
V) and OmniOffices (Lux) 1929 Holding Company S.A., a corporation formed under
the laws of Luxembourg, ("LuxCo" and together with Omni UK, collectively, the
"Companies") (solely for purposes of Article II, Article IV and Article V) on
the one hand, and VANTAS Incorporated, a Nevada corporation ("Buyer" or
"VANTAS"), and Reckson Services Industries, Inc., a Delaware corporation
("RSI") (solely for purposes of Section 5.4, 6.2 and Article XXI), on the
other hand.
W I T N E S S E T H:
WHEREAS, CarrAmerica own shares of the capital stock of each of (i) OMNI
UK and (ii) LuxCo;
WHEREAS, CarrAmerica has made certain loans to OMNI UK and LuxCo as
described on Exhibit B attached hereto (the "Loans") which Loans are evidenced
by promissory notes, the dates and denominations of which are set forth on
Exhibit B (the "Notes");
WHEREAS, CarrAmerica desires to sell and transfer to VANTAS and VANTAS
desires to purchase from CarrAmerica (i) 2,006,066 shares of non-voting common
stock, par value (pound).01 per share, of OMNI UK (which represents
approximately 95% of the equity interest in Omni UK) (the "UK Non-Voting
Common Stock") and 144 shares of non-voting common stock, par value $250 per
share, of LuxCo (which represents approximately 95% of the equity interest in
LuxCo) (the "Lux Non-Voting Common Stock"; and together with the UK Non-Voting
Common Stock, collectively, the "Shares") owned of record by the Seller for
$23,972,306 in cash payable in accordance with Section 1.2 (such amount based
on assumed Loan Consideration of $44,995,277 and subject to recalculatation at
Closing pursuant to Annex A, the "Share Consideration") and (ii) the Notes in
exchange for an amount equal to the principal amount of, and any accrued and
unpaid interest with respect to, the Notes as of the Closing Date in
accordance with Section 1.2 (the "Loan Consideration");
WHEREAS, CarrAmerica desires to assume certain obligations of Omni UK
upon the terms set forth in Section 5.3;
WHEREAS, simultaneously with the execution and delivery of this
Agreement, (i) Buyer, Seller, RSI and HQ Global Workplaces, Inc. ("HQ") have
entered into an Agreement and Plan of Merger (the "Merger Agreement") that
provides for the merger, subject to and upon the terms and conditions set
forth therein, of VANTAS with and into HQ (the "HQ Merger") immediately prior
to the closing of the transactions contemplated hereby and (ii) Seller and RSI
have entered into that certain Stock Purchase Agreement (the "Stock Purchase
Agreement") providing for the acquisition by RSI from Seller of certain shares
of voting common stock and non-voting common stock of HQ simultaneously with
the closing of the transactions contemplated hereby;
WHEREAS, capitalized terms not defined herein have the meanings ascribed
to them in the Merger Agreement; and
NOW, THEREFORE, in consideration of the mutual covenants and undertakings
contained herein, and subject to and on the terms and conditions herein set
forth, the parties hereto agree as follows:
ARTICLE I
The Transactions
Section 1.1 The Transactions. (a) Upon the terms and subject to the
conditions contained herein, on the Closing Date (as hereinafter defined),
CarrAmerica will sell, convey, transfer, assign and deliver to VANTAS, and
VANTAS will purchase and acquire from CarrAmerica, the number of Shares set
forth opposite its name on Exhibit A attached hereto for the Share
Consideration, payable as set forth below in Section 1.2.
(b) Upon the terms and subject to the conditions contained herein, on the
Closing Date, CarrAmerica will sell, convey, transfer, assign and deliver to
VANTAS, and VANTAS will purchase and acquire from CarrAmerica, the Notes for
the Loan Consideration, payable as set forth below in Section 1.2.
Section 1.2 The Closing. The Closing (the "Closing") of the purchase and
sale of the Shares shall be held at the offices of ▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, immediately after the Effective Time
of the HQ Merger and immediately prior to the Effective Time of the Second
Step Merger, subject to the satisfaction or waiver of the conditions set forth
in Article VII herein. The date on which the Closing shall occur is
hereinafter referred to as the "Closing Date." At the Closing, (i) VANTAS
shall deliver to CarrAmerica, by wire transfer to a bank account designated in
writing by CarrAmerica at least two business days prior to the Closing Date,
immediately available funds in an amount equal to the sum of (A) the Loan
Consideration and (B) the Share Consideration (such sum of (A) and (B) being
referred to herein as, collectively, the "Total Consideration") and (ii)
CarrAmerica shall deliver or cause to be delivered to VANTAS (a) certificates
representing the Shares, duly endorsed in blank or accompanied by stock powers
duly endorsed in blank in proper form for transfer, with appropriate transfer
stamps, if any, affixed and (b) the originally executed Notes, duly endorsed
by the Seller, without recourse, for transfer to VANTAS.
ARTICLE II
Representations and Warranties of CarrAmerica, OMNI UK and LuxCo
(A) OMNI UK and LuxCo hereby severally with respect to itself and its
Subsidiaries represent and warrant to VANTAS as follows:
Section 2.1 Organization and Standing; Books and Records.
(a) Each of the Companies is a corporation duly organized and validly
existing under the laws of its jurisdiction of incorporation. Schedule 2.1
sets forth each Subsidiary (as defined below) of each of the Companies and the
state or other jurisdiction of organization of such Subsidiary and the
percentage ownership of each of the Companies with respect to each such
Subsidiary. Each of the Companies and each of its respective Subsidiaries have
all requisite corporate power and authority necessary to carry on their
respective businesses as presently conducted and to enable each to own, lease
or otherwise hold their respective properties and assets. Each of the
Companies and their respective Subsidiaries are duly qualified to do business
as a foreign corporation in each jurisdiction in which the conduct or nature
of their respective business or the ownership, leasing or holding of their
respective properties or assets makes such qualification necessary, except
such jurisdictions where the failure to be so individually or in the
aggregate, would not have a material adverse effect on the business, financial
condition or results of operations of either of the Companies and their
respective Subsidiaries, taken as a whole (a "Material Adverse Effect"). The
term "Subsidiary", for any Person, means each person of which a majority of
the voting power of the voting equity securities or equity interest is owned,
directly or indirectly, by such Person.
(b) Each of the Companies has made available to VANTAS true and complete
copies of its respective certificate of incorporation and by-laws (or
equivalent organizational document), each as amended to date. The stock
certificate and transfer books and the minute books of the Companies (which
have been made available for inspection by VANTAS prior to the execution and
delivery of this Agreement) are true and complete.
Section 2.2 Authority. Each of the Companies has all requisite corporate
power and authority to enter into this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby. All acts and
other proceedings required to be taken by the Companies to authorize the
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby have been duly and properly taken. This
Agreement has been duly executed and delivered by a duly authorized officer of
each of the Companies and constitutes a legal, valid and binding obligation of
each of the Companies, enforceable against each of the Companies in accordance
with its terms except insofar as enforcement thereof may be limited by
bankruptcy, insolvency or other laws relating to or affecting enforcement of
creditors' rights generally including such general equity principles as may
apply in the enforcement of creditors' rights.
Section 2.3 No Conflicts; Consents. Except as set forth on Schedule 2.3,
the execution and delivery of this Agreement by each of the Companies does
not, and the consummation of the transactions contemplated hereby and
compliance by the Companies with the terms hereof will not, conflict with, or
result in any violation of or default (with or without notice or lapse of
time, or both) under, or give rise to a right of termination, cancellation or
acceleration of any obligation or to material loss of a benefit under, or
result in the creation of any lien, charge or encumbrance of any kind upon any
of the properties or assets of either of the Companies under, any provision of
(i) the certificate of incorporation or by-laws (or equivalent organizational
document) of either of the Companies, (ii) any material note, bond, mortgage,
indenture, deed of trust, loan document, license, lease, contract, commitment,
agreement or arrangement to which either of the Companies is a party or by
either of the Companies or any of their respective properties or assets is
bound or (iii) any judgment, order or decree, or statute, law, ordinance, rule
or regulation, applicable either of the Companies or any of their respective
properties or assets. Except as set forth on Schedule 2.3, no consent,
approval, license, permit, order or authorization of, or registration,
declaration or filing with, any Federal, state, local or foreign government or
any court of competent jurisdiction, administrative agency or commission or
other governmental authority or instrumentality, domestic or foreign, or any
national securities or commodities exchange or other regulatory or
self-regulatory body or association (a "Governmental Entity") is required to
be obtained or made by or with respect to either of the Companies in
connection with the execution, delivery and performance of this Agreement by
the Companies or the consummation of the transactions contemplated hereby,
other than compliance with any filings under the HSR Act.
Section 2.4 Capital Stock of the Companies.
(a) As of the date hereof, the authorized share capital of (i) OMNI UK
consists of 200,000 shares of UK Voting Common Stock and 3,800,000 shares of
UK Non-Voting Common Stock, one share of Class C Redeemable Preference Share,
(pound).01 per share par value, and one share of Class D Redeemable Preference
Share, (pound).01 per share par value ("Class D Stock") of which 105,582
shares of UK Voting Common Stock, 2,006,066 shares of UK Non-Voting Common
Stock, one share of Class C Stock and one share of Class D Stock are duly
authorized and validly issued and outstanding, fully paid and nonassessable
and (ii) LuxCo consist of 1000 shares of LUX Voting Common Stock and 1000
shares of Lux Non-Voting Common Stock, of which 144 shares of Lux Voting
Common Stock and 144 shares of Lux Non-Voting Common Stock are duly authorized
and validly issued and outstanding, fully paid and non-assessable. Except as
set forth on Schedule 2.4, no such shares have been issued in violation of, or
are subject to, any purchase option, call, right of first refusal, preemptive,
subscription or similar right under any provision of applicable law, the
certificate of incorporation or by-laws (or equivalent organizational
document) of either of the Companies or any agreement, contract or instrument
to which either of the Companies is a party or by which either or any of their
respective properties or assets is bound. Except as set forth on Schedule 2.4
and except for the Notes made by LuxCo which are convertible at the holder's
option into Lux Non-Voting Common Stock, there are no outstanding warrants,
options, rights, "phantom" stock rights, agreements, convertible or
exchangeable securities or other commitments (other than this Agreement) (i)
pursuant to which either of the Companies is or may become obligated to issue,
sell, purchase, return or redeem any shares of capital stock or other
securities of either of the Companies or (ii) that give any person the right
to receive any benefits or rights similar to any rights enjoyed by or accruing
to the holders of shares of capital stock of either of the Companies. There
are no equity securities of either of the Companies reserved for issuance for
any purpose except for securities reserved for issuance for the purposes set
forth on Schedule 2.4. There are no outstanding bonds, debentures, notes or
other indebtedness having the right to vote on any matters on which
shareholders of either Company may vote.
(b) Ownership of Capital Stock of the Companies; the Shares. CarrAmerica
is the record and beneficial owner of the number of Shares set forth opposite
it's name on Exhibit A hereto. CarrAmerica has good and valid title to the
Shares and the Notes, in each case free and clear of any liens, charges,
claims, rights or encumbrances of any kind. Other than the Shares owned by HQ
and as otherwise set forth on Schedule 2.4(b) and except for 1 Class C Share
(par value $.01) of Omni UK and 1 Class D Share (par value $.01) of Omni UK,
the Shares represent all of the issued and outstanding shares of capital stock
of each of the Companies.
(c) Assuming VANTAS is a "bona fide purchaser" within the meaning of the
Uniform Commercial Code of the State of New York, upon delivery to VANTAS at
the Closing of certificates representing the Shares and the Notes, in each
case duly endorsed by the Seller for transfer to VANTAS, and upon the Seller's
receipt of the Total Consideration, good and valid title to the Shares and
Notes will pass to VANTAS, free and clear of any liens, charges, claims,
rights or encumbrances of any kind. Except as set forth in Schedule 2.17 with
respect to Brook Street or in Schedule 2.4(c), other than this Agreement, none
of the Shares or Notes are subject to any agreement, contract, commitment,
understanding or arrangement, including any such agreement, contract,
commitment, understanding or arrangement restricting or otherwise relating to
the voting, dividend rights or disposition of the Shares or, in the case of
the Notes, subordinating the payment obligations under the Notes to any other
indebtedness or otherwise limiting any of the Seller's rights to enforce the
Notes.
Section 2.5 Equity Interests. Except as set forth in Schedule 2.5 and the
other Schedules hereto, neither of the Companies nor any of their respective
Subsidiaries directly or indirectly owns any capital stock of or other equity
interests in any corporation, partnership or other person, and neither of the
Companies are members of or participants in any partnership, joint venture or
similar person.
Section 2.6 Investment Companies. Neither of the Companies nor any of
their respective Subsidiaries is registered or required to be registered as an
Investment Company under the Investment Company Act of 1940, as amended (the
"Investment Company Act").
Section 2.7 Restrictions and Agreements. Except as set forth in Schedule
2.7, (i) neither of the Companies nor any of their respective Subsidiaries is
a party to, nor are the Companies or any of their respective Subsidiaries or
any of their respective properties or assets subject to or bound by, any
judgment, order or decree of any Governmental Entity which has or is
reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect, and (ii) neither of the Companies nor any of their respective
Subsidiaries is a party to, nor are any of their respective properties or
assets subject to or bound by, any contract, agreement or other instrument,
which, as a result of the execution of this Agreement or the consummation of
the transactions contemplated hereby, has or is reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect.
Section 2.8 Financial Statements; Undisclosed Liabilities.
(a) Schedule 2.8 sets forth (A) the unaudited consolidated balance sheets
of each of the Companies as of September 30, 1999 (collectively, the "Balance
Sheets"), and the unaudited consolidated statements of income of each of the
Companies for the 9 month period ended September 30, 1999, and (B) the audited
consolidated balance sheets of Omni UK as of December 31, 1998, and the
audited consolidated statements of income of Omni UK for the period April to
December 31, 1998, (for Omni UK, the financial statements described in clauses
(A) and (B) above, together with the notes to such financial statements, are
collectively referred to herein as the "Financial Statements"). The Financial
Statements are in all material respects in accordance with the respective
books and records of the Companies and have been prepared in conformity with
generally accepted accounting principles applying in the country or state of
incorporation consistently applied throughout the periods indicated (except in
each case as described in the notes thereto) and on that basis fairly present
in all material respects (subject, in the case of the unaudited statements
referred to in (A) above, to normal, recurring year-end adjustments) the
financial condition and results of operations of Omni UK and its Subsidiaries
as of the respective dates thereof and for the respective periods indicated.
(b) Neither of the Companies nor any of their respective Subsidiaries
have any liabilities or obligations of any nature (whether accrued, absolute,
contingent, threatened or otherwise), except (A) as disclosed, reflected or
reserved against in the respective Balance Sheets and the notes thereto, (B)
items set forth on Schedule 2.8, (C) liabilities and obligations incurred in
the ordinary course of business consistent with past practice since the date
of the respective Balance Sheets that would not, individually or in the
aggregate, result in a Material Adverse Effect and (D) Taxes.
(c) Except as set forth in Schedule 2.8, the amount of all accounts
receivable, including unbilled invoices which are reflected as accounts
receivable on the respective Financial Statements, due, or recorded in the
respective Balance Sheets as being due to the respective Companies and their
respective Subsidiaries (less the amount of any provision or reserve therefor
made in the respective Balance Sheets), are fully collectible in the normal
course of business.
Section 2.9 Absence of Changes or Events. Since the date of the
respective Balance Sheets, there has not been any Material Adverse Effect or
any development or change in circumstances that is reasonably likely to result
in a Material Adverse Effect. Except as set forth in Schedule 2.9 or as
otherwise contemplated or permitted by this Agreement, since the date of the
respective Balance Sheets, the business of each of the Companies and their
respective Subsidiaries has been conducted in the ordinary course and in
substantially the same manner as previously conducted, and neither of the
Companies nor any of their respective Subsidiaries has (i) declared or paid
any dividend or made any other distribution to its respective shareholders
whether or not upon or in respect of any shares of their respective capital
stock, (ii) redeemed or otherwise acquired any shares of their respective
capital stock or issued any capital stock or any option, warrant or right
relating thereto or any securities convertible into or exchangeable for any
shares of their respective capital stock, (iii) adopted or materially amended
any Benefit Plan (as defined in Section 2.16), except as required by law, or
entered into or amended any employment, severance or consulting agreement,
contract or similar arrangement, (iv) granted to any their respective
directors, officers or employees any increase in compensation or benefits,
except for increases for any such director, officer or employee in the
ordinary course of business consistent with past practice or as may be
required under existing agreements, (v) incurred or assumed any liability,
obligation or indebtedness for borrowed money or guaranteed any such
liability, obligation or indebtedness, (vi) permitted, allowed or suffered any
of their respective assets to become subject to any mortgage, security
interest, lien or other similar restriction of any nature whatsoever, (vii)
cancelled any indebtedness or waived any claims or rights of substantial
value, except for customer trade adjustments in the ordinary course of
business that for either Company do not exceed $25,000 individually or
$100,000 in the aggregate, (viii) entered into, or modified, amended,
terminated, or permitted the lapse of, any real property lease or other
material agreement relating to real property, or (ix) incurred any
indebtedness that is senior to the Notes in terms of rights of payment.
Section 2.10 Taxes.
(a) For purposes of this Agreement, (A) "Tax" or "Taxes" shall mean all
taxes, and all other charges, fees, levies or other assessments of a fiscal
nature, including, without limitation, income, gross receipts, excise,
property, sales, withholding, social security, national insurance, franchise,
transfer and recording taxes, subscription taxes, fees and charges, including
estimated taxes, imposed by the United Kingdom or any taxing authority
(domestic or foreign), whether computed on a separate, consolidated, unitary,
combined or any other basis; and such term shall include any interest, fines,
penalties or additional amounts attributable to, or imposed upon, or with
respect to any such taxes, charges, fees, levies or other assessments; (B)
"Tax Return" shall mean any return, report or other document or information
required to be supplied to a taxing authority in connection with Taxes; (C)
"Inland Revenue" shall mean the U.K. Inland Revenue and (D) "Pre-Closing Tax
Period" shall mean all taxable periods ending on or before the Closing Date
and the portion ending on the Closing Date of any taxable period that includes
(but does not end on) such day.
(b) In the last five years, the only jurisdictions where either of the
Companies and their respective Subsidiaries have filed any income or
subscription tax returns, as applicable, are the United Kingdom, Germany and
Luxembourg, and certain of the Companies' Subsidiaries have filed payroll
related (but not income) tax returns in Austria).
(c) Except as set forth on Schedule 2.10, (A) Each of the Companies and
their respective Subsidiaries have (x) duly filed with the appropriate
Governmental Entities all Tax Returns required to be filed by them on or prior
to the date hereof (after giving effect to any filing extension properly
granted by a Governmental Entity having authority to do so), and such Tax
Returns are true, correct and complete in all material respects and (y) duly
paid in full or made provision in accordance with generally accepted
accounting principles for the payment of all Taxes for all periods ending
through the date hereof; (B) there are no liens for Taxes upon the assets of
any of the Companies and their respective Subsidiaries, except for statutory
liens for current Taxes not yet due; (C) each of the Companies and their
respective Subsidiaries have complied in all respects with all applicable
laws, rules and regulations relating to the payment and withholding of Taxes
and have, within the time and the manner prescribed by law, withheld from and
paid over to the proper Governmental Entities all amounts required to be so
withheld and paid over under applicable laws; (D) no audits or other
administrative proceedings or court proceedings are presently pending with
regard to any Taxes or Tax Returns of any of the Companies and their
respective Subsidiaries and none of the Companies and their respective
Subsidiaries have received notice of any pending audits or proceedings; (E)
there are no outstanding written requests, agreements, consents or waivers to
extend the statutory period of limitations applicable to the assessment of any
Taxes or deficiencies against either of the Companies or their respective
Subsidiaries; (F) neither of the Companies nor their respective Subsidiaries
is a party to any agreement providing for the allocation or sharing of Taxes;
and (G) no power of attorney has been executed by either of the Companies or
their respective Subsidiaries with respect to any matter relating to Taxes
which is currently in force.
Section 2.11 Assets Other than Real Property Interests.
(a) Each of the Companies has good and valid title to all assets (other
than real property interests) reflected on their respective Balance Sheets or
acquired after the date thereof, except those sold or otherwise disposed of
since the date of their respective Balance Sheets in bona fide arm's length
transactions made in the ordinary course of business consistent with past
practice and not in violation of this Agreement in each case free and clear of
all liens, charges or encumbrances of any kind except those subject to the
rights of suppliers under retention of title clauses or similar provisions and
except (A) such as are set forth in Schedule 2.11, (B) mechanics', carriers',
workmen's, repairmen's or other like liens arising or incurred in the ordinary
course of business, liens arising under original purchase price conditional
sales contracts and equipment leases with third parties entered into in the
ordinary course of business and liens for Taxes that are not due and payable
or that may thereafter be paid without penalty and (C) other imperfections of
title or encumbrances, if any, that do not, individually or in the aggregate,
materially impair the continued use and operation of the assets to which they
relate in the businesses of the Companies and their respective Subsidiaries as
presently conducted (the liens and imperfections of title described in clauses
(B) and (C) above are hereinafter referred to collectively as "Permitted
Liens").
(b) All of the Companies' respective material tangible personal property
has been maintained in accordance with the past practice of each such Company
and generally accepted industry practice. Each item of the Companies'
respective material tangible personal property is in reasonably good operating
condition and repair, ordinary wear and tear excepted. All of the Companies'
respective leased personal property is in all material respects in the
condition required of such property by the terms of the lease applicable
thereto during the term of the lease and upon the expiration thereof, and each
such Company has made all payments required by all such respective leases.
Section 2.12 Real Property.
(a) Neither of the Companies nor any of their respective Subsidiaries
owns any real property or interests in real property, other than OmniUK Real
Property Leases (as defined below) or LuxCo Real Property Leases (as defined
below), and the OmniUK Owned Property (as defined below), as applicable.
Schedule 2.12 sets forth a complete list of all real property and interests in
real property owned, leased or otherwise held by OmniUK and its Subsidiaries
(such leased properties, individually, an "OmniUK Real Property Lease," and
the real properties specified in such leases being referred to herein
individually as an "OmniUK Property" and collectively as the "OmniUK
Properties," and the owned property, the "OmniUK Owned Property") and LuxCo
and its Subsidiaries (such leased properties, individually, a "LuxCo Real
Property Lease," and the real properties specified in such leases being
referred to individually as an "LuxCo Property" and collectively as the "LuxCo
Properties" as respective lessees. Each of the Companies has made available
true and complete copies of the OmniUK Real Property Leases and the LuxCo Real
Property Leases. The OmniUK Property, LuxCo Property and OmniUK Owned Property
constitute all interests in real property currently used or currently held for
use in connection with the respective businesses of the Companies and their
respective Subsidiaries and which are necessary for the continued operation of
the respective businesses of the Companies and their respective Subsidiaries
as such businesses are currently conducted. Each OmniUK Real Property Lease
and LuxCo Real Property Lease is valid, binding, enforceable and in full force
and effect, except insofar as enforcement thereof may be limited by
bankruptcy, insolvency or other laws relating to or affecting enforcement of
creditors' rights generally including such general equitable principles as may
apply in the enforcement of creditors' rights. Each of the Companies and each
of their respective Subsidiaries has performed in all material respects all
obligations required to be performed by them, if any, under each OmniUK Real
Property Lease and LuxCo Real Property Lease. Other than the consents set
forth on the Summary (as herein defined), at Closing no event or conditions
will exist which will constitute or, after notice or lapse of time or both,
would constitute a default in any material respect on the part of the
Companies or any of their respective Subsidiaries under any such OmniUK Real
Property Lease or LuxCo Real Property Lease, as applicable. To each Company's
knowledge, each other party to each OmniUK Real Property Lease or LuxCo Real
Property Lease, as applicable, has in all material respects performed all
obligations required to be performed by it, and no event or condition exists
which constitutes or, after notice or lapse of time or both, would constitute
a default in any material respect on the part of such other party under any
such OmniUK Real Property Lease or LuxCo Real Property Lease, as applicable.
All of the OmniUK Properties, LuxCo Properties, buildings, fixtures and
improvements thereon owned or leased by the Companies or any of their
respective Subsidiaries are in good operating condition and repair (subject to
normal wear and tear).
(b) Except as set forth on Schedule 2.12, the Companies and their
respective Subsidiaries have all material certificates of occupancy and
material permits and licenses of any Governmental Entity necessary for the
current use and operation of the OmniUK Property, the LuxCo Property and the
OmniUK Owned Property, and the Companies and their respective Subsidiaries
have complied with all material conditions of such material permits and
licenses applicable to them. No default or violation, or event which, with the
lapse of time or giving of notice or both would become a default or violation,
has occurred in the due observance of any such material permit or license,
other than defaults or violations which, individually or in the aggregate,
would not be reasonably likely to have a Material Adverse Effect.
(c) There does not exist any actual or, to the knowledge of each
Company, threatened or contemplated condemnation or eminent domain proceedings
that affect any of the OmniUK Property, the LuxCo Property, the OmniUK Owned
Property or any part thereof, and none of the Companies or any of their
respective Subsidiaries has received any written notice, of the intention of
any Governmental Entity or other Person to take or use all or any part
thereof.
(d) None of the Companies or any of their respective Subsidiaries has
received any written notice from any insurance company that has issued a
policy with respect to any of the OmniUK Property, the LuxCo Property or the
OmniUK Owned Property requiring performance of any structural or other
substantial repairs or alterations to such OmniUK Property, LuxCo Property and
the OmniUK Owned Property.
(e) Except as set forth on Schedule 2.12, none of the Companies or any of
their respective Subsidiaries owns or holds, and is not obligated under or a
party to, any option, right of first refusal or other contractual right to
purchase, acquire, sell, assign or dispose of any real estate or any portion
thereof or interest therein.
(f) There is no actual or contingent liability on the part of either of
the Companies in relation to any real property other than as set forth on
Schedule 2.12 including any actual or contingent liability as previous lessee
or underlessee or guarantor or surety or covenant in relation to any Omni UK
Real Property Leases or LuxCo Real Property Leases.
(g) There is no mortgage debt secured by Wyvol's Court, which is the only
UK Owned Property.
Section 2.13 Contracts. Except as set forth in Schedule 2.13, neither of
the Companies nor any of their respective Subsidiaries is a party to or
otherwise bound by any:
(a) employment, severance or consulting agreement, contract or other
arrangement;
(b) covenant not to compete or covenant restricting the development,
marketing or distribution of the products and services of either of the
Companies or any of their respective Subsidiaries including without
limitation, franchise agreements providing for geographic or name exclusivity;
(c) agreement, contract or other arrangement with (A) any stockholder of
either Company or any Affiliate (as defined herein) of any such stockholder or
(B) any current or former officer, director or employee of either of the
Companies or their respective Subsidiaries;
(d) lease or similar agreement or other arrangement with any person under
which (A) either of the Companies or any of their respective Subsidiaries is
lessee of, or holds or uses, any machinery, equipment, vehicle or other
tangible personal property owned by any person or (B) either of the Companies
or any of their respective Subsidiaries is a lessor or sublessor of, or makes
available for use by any person, any tangible personal property owned or
leased by either of the Companies or any of their respective Subsidiaries, in
the case of either (A) or (B) which has an aggregate future liability or
receivable, as the case may be, of more than $100,000 individually or is not
terminable by such Company or any of such Company's Subsidiaries by notice of
more than 60 days for a cost of not more than $100,000 individually;
(e) (A) continuing agreement, contract or other arrangement for the
future purchase of supplies or equipment, (B) management, service, consulting
or other similar type of agreement, contract or other arrangement or (C)
advertising agreement, contract or other arrangement, in the case of any of
(A), (B) or (C) which has an aggregate future liability to any person of more
than $100,000 individually or is not terminable by such Company or any of such
Company's Subsidiaries by notice of not more than 60 days for a cost of not
more than $100,000 individually;
(f) license, option or similar agreement, contract or other arrangement
relating in whole or in part to intellectual property (including any license
or other agreement under which either of the Companies or any of their
respective Subsidiaries is licensee or licensor of any such intellectual
property) or to trade secrets, confidential information or proprietary rights
and processes of the either of Companies or any other person, in any such
case, which has an aggregate future liability or receivable, as the case may
be, of more than $100,000 individually or is not terminable by such Company or
any of such Company's Subsidiaries by notice of not more than 60 days for a
cost of not more than $100,000 individually;
(g) except for the Notes and certain inter-company loans made between the
Companies and their Subsidiaries, agreement, contract or other instrument or
arrangement under which either of the Companies or any of their respective
Subsidiaries has borrowed any money from, or issued any note, bond, debenture,
guarantee or other evidence of indebtedness to, any person in any such case
which has an aggregate future liability to any person of more than $100,000
individually or is not terminable by such Company or any of such Company's
Subsidiaries by notice of not more than 60 days for a cost of not more than
$100,000 individually;
(h) except for certain inter-company loans made between the Companies and
their Subsidiaries, agreement, contract or other instrument or arrangement
under which either of the Companies or any of their respective Subsidiaries
has, directly or indirectly, made any advance, loan, extension of credit or
capital contribution to, or other investment in, any person in any such case
which has an aggregate future liability to any person of more than $100,000
individually or is not terminable by such Company or any of such Company's
Subsidiaries by notice of not more than 60 days for a cost of not more than
$100,000 individually;
(i) agreement, contract or other instrument or arrangement providing for
indemnification of any person with respect to liabilities relating to any
current or former business of either of the Companies or any of their
respective Subsidiaries or any predecessor person in any such case which has
an aggregate future liability to any person of more than $100,000 individually
or is not terminable by such Company or any of such Company's Subsidiaries by
notice of not more than 60 days for a cost of not more than $100,000
individually; or
(j) other agreement, contract or other arrangement to which either of the
Companies or any of their respective Subsidiaries is a party or by which they
or any of their respective properties or assets is bound which has an
aggregate future liability or receivable to or from any person of more than
$100,000 individually or is not terminable by such Company or any of such
Company's Subsidiaries by notice of not more than 60 days for a cost of not
more than $100,000 individually.
; provided, however, that notwithstanding anything to the contrary contained
herein other than any contracts relating to office equipment, maintenance or
service for any individual business center of the Companies or their
respective Subsidiaries which does not require annual payments in excess of
$25,000, the sum of the aggregate future liabilities and costs of termination
associated with all contracts, arrangements, agreements or understandings to
which either of the Companies or any of their respective Subsidiaries is a
party or by which they or any of their respective properties or assets which
are not set forth on Schedule 5.2, 2.13 or 2.16 is bound exceed $5,000,000.
Except as set forth in Schedule 2.13, all agreements, contracts, leases,
subleases, licenses, options, instruments or arrangements of the Companies or
any of their respective Subsidiaries listed in the Schedules hereto
(collectively, "Contracts") are valid, binding and in full force and effect
and are enforceable by the respective Company which is a party to such
Contract and each of its Subsidiaries in accordance with its terms, except
insofar as enforcement thereof may be limited by bankruptcy, insolvency or
other laws relating to or affecting enforcement of creditors' rights generally
including such general equitable principles as may apply in the enforcement of
creditors' rights. Except as set forth in Schedule 2.13, the Companies and
their respective Subsidiaries have performed in all material respects all
obligations required to be performed by them to date under material Contracts
and none of the Companies or their respective Subsidiaries are (with or
without the lapse of time or the giving of notice, or both) in breach or
default in any material respect thereunder and, to each Company's knowledge,
no other party to any material Contracts is (with or without the lapse of time
or the giving of notice, or both) in breach or default in any material respect
thereunder.
Section 2.14 Litigation. Except as set forth in Schedule 2.14, there is
no claim, action, suit, proceeding, arbitration, investigation or inquiry
before any Governmental Entity or any private arbitration tribunal now
pending, or, to the knowledge of each Company, threatened, against, relating
to or affecting either of the Companies or any of their respective
Subsidiaries or any of their respective properties, employees, assets or
business or the transactions contemplated by this Agreement. Except as set
forth in Schedule 2.14, to the knowledge of each Company, there is no basis
for any such claim, action, suit, proceeding, arbitration, investigation or
inquiry which, individually or in the aggregate, may reasonably be expected to
have a Material Adverse Effect. None of the Companies, any of their respective
Subsidiaries or any of their respective directors, officers or employees or
any of their respective Subsidiaries have been permanently or temporarily
enjoined or prohibited by judgment, order or decree of any Governmental Entity
from engaging in or continuing any conduct or practice in connection with the
businesses engaged in by the Companies and their respective Subsidiaries. None
of the Companies is operating under, subject to or in default with respect to
any judgment, order or decree of any Governmental Entity enjoining or
prohibiting either of the Companies or any of their respective Subsidiaries
from taking, or requiring either of the Companies or any of their respective
Subsidiaries to take, any action of any kind or to which either of the
Companies or any of their respective Subsidiaries or any of their respective
properties or assets is subject or bound.
Section 2.15 Insurance. Schedule 2.15 lists all policies of fire and
casualty, liability and other forms of insurance maintained or held by each of
the Companies or any of their respective Subsidiaries, which policies are in
such amounts, and with such deductibles and which insure against such risks
and losses as are customary for the businesses conducted by the Companies and
their respective Subsidiaries. All such policies are in full force and effect
and are sufficient for compliance by each of the Companies and their
respective Subsidiaries with all their respective agreements, all premiums due
and payable thereon have been paid (other than retroactive or retrospective
premium adjustments that are not yet, but may be, required to be paid with
respect to any period ending prior to the Closing Date), and no notice of
cancellation or termination has been received with respect to any such policy
which has not been replaced on substantially similar terms prior to the date
of such cancellation. The activities and operations of each of Companies and
their respective Subsidiaries have been conducted in a manner so as to conform
in all material respects to all applicable provisions of such insurance
policies.
Section 2.16 Benefit Plans.
(a) Schedule 2.16 sets forth a list and brief description of all
retirement, health, life fringe benefit, severance or similar employee benefit
arrangements (all the foregoing being herein called "Benefit Plans")
maintained by each of the Companies or any of their respective Subsidiaries
for the benefit of any director, officer or employee of any of the Companies
or their respective Subsidiaries. Each of the Companies has made available to
VANTAS true, complete and correct copies of each Benefit Plan.
(b) Each Benefit Plan has been administered in all material respects in
accordance with its terms. Each of the Companies, their respective
Subsidiaries and all the Benefit Plans are in compliance in all material
respects with the applicable provisions of applicable law, and all employer
and employee contributions have been timely made under such Benefit Plans.
There are no lawsuits, actions, termination proceedings or other formal
proceedings pending, or, to the knowledge of each Company, threatened against
or involving any Benefit Plan and, to the knowledge of each Company, there are
no investigations by any Governmental Entity or other claims (except claims
for benefits payable in the normal operation of the Benefit Plans) pending or
threatened against or involving any Benefit Plan or asserting any rights to
benefits under any Benefit Plan.
(c) None of the Benefit Plans provide for post-retirement medical or
dental insurance benefits, the cost of which is not entirely borne by the
retirees eligible therefor.
(d) Except as set forth in Schedule 2.16, no director, officer or
employee or former director, officer or employee of either the Companies or
their respective Subsidiaries will become entitled to payment or accelerated
vesting of any bonus, retirement, severance, job security or similar benefit
or any enhanced benefit solely as a result of the transactions contemplated
hereby.
Section 2.17 Compliance with Applicable Laws. Each of the Companies and
their respective Subsidiaries are in compliance in all material respects with
all applicable statutes, laws, ordinances, rules, orders and regulations of
any Governmental Entity ("Applicable Laws"). Except as set forth in Schedule
2.17, none of the Companies or any of their respective Subsidiaries has
received any written communication during the past two years from a
Governmental Entity that alleges that either of the Companies or any of their
respective Subsidiaries are not in compliance in any material respect with any
Applicable Laws.
Section 2.18 Labor Matters. (i) Except as disclosed on Schedule 2.18:
(i) neither of the Companies nor any of their respective
Subsidiaries is a party to any labor or collective bargaining agreement
with respect to its employees; no employees of either of the Companies or
any of their respective Subsidiaries are represented by any labor
organization; no labor organization or group of employees of either of
the Companies or any of their respective Subsidiaries has made a pending
demand for recognition or certification to either of the Companies or any
of their respective Subsidiaries; and there are no representation or
certification proceedings or petitions seeking a representation
proceeding presently pending or, to the knowledge of each Company,
threatened, to be brought or filed with the National Labor Relations
Board or other labor relations tribunal involving either of the Companies
or any of their respective Subsidiaries;
(ii) there are no strikes, lockouts, work stoppages or slowdowns
pending or, to the knowledge of each of the Companies, threatened against
or involving either of the Companies or any of their respective
Subsidiaries;
(iii) there are no unfair labor practice charges, arbitrations or
grievances pending or threatened in writing against or involving either
of the Companies or any of their respective Subsidiaries relating to the
employment or termination of employment of any individual by either of
the Companies or any of their respective Subsidiaries;
(iv) there are no complaints, charges or claims against either of
the Companies or any of their respective Subsidiaries pending or, to the
knowledge of each of the Companies or any of their respective Subsidiaries,
threatened in writing to be brought or filed with any Governmental Entity
based on or arising out of the employment by the Companies of any employee;
(v) the Companies and each of their respective Subsidiaries are in
compliance in all material respects with all laws relating to the
employment of labor, including all such Laws relating to wages, hours,
collective bargaining, discrimination, civil rights, safety and health,
workers' compensation and the collection and payment of withholding
and/or Social Security Taxes and similar Taxes; and
(vi) none of the Companies or any of their respective
Subsidiaries is a party to, or otherwise bound by, any consent decree with,
or citation by, any Governmental Entity relating to employees or employment
practices.
Section 2.19 Transactions with Affiliates. Except as set forth in
Schedule 2.19 and excluding the Notes, (i) none of the Contracts between
either of the Companies and/or any of their respective Subsidiaries, on the
one hand, and any Affiliate of either such Company, on the other hand, will
continue in effect subsequent to the Closing, (ii) after the Closing no
Affiliate of either of the Companies will have any interest in any property
(real or personal, tangible or intangible) or contract used in or pertaining
to the business of such Company, and (iii), no Affiliate of either of the
Companies has any direct or indirect ownership interest in any person in which
either of the Companies and/or their respective Subsidiaries has any direct or
indirect ownership interest. As used herein the term "Affiliate" shall mean,
with respect to any Person, (i) any Person directly or indirectly controlling,
controlled by or under common control with such Person, or (ii) any officer,
director, general partner, managing member or trustee of such Person or any
Person referred to in clause (i) above. For purposes of this definition of
Affiliate, "control," when used with respect to any Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
Section 2.20 Corporate Name. Schedule 2.22 sets out the rights of OmniUK,
LuxCo and their respective subsidiaries in "OmniOffices", "HQ", "▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇", "▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Group Limited" and "Offices in the City of
Vienna" and none of the Companies and their respective Subsidiaries has
received any notice of conflict during the past two years with respect to the
rights of others regarding such names. LuxCo has the exclusive right in
Luxembourg to use the name "OmniOffices (Lux) 1929 Holding Company S.A. Except
as set forth in Schedule 2.22, no person (other than each of the Companies and
their respective Subsidiaries) is authorized by either of the Companies to
use, or otherwise has the right to use, the names in England, Germany, Austria
and Luxembourg.
Section 2.21 Customers. Except for the Persons leasing or otherwise
having rights to occupy those properties subject to real property leases
(collectively, the "Customers") set forth in Schedule 2.21, neither of the
Companies nor their respective Subsidiaries have any Customer from which any
received more than 2% of its respective revenues during their most recent full
fiscal year. Since the date of the respective Balance Sheets, there has not
been any material adverse change in the business relationships of either of
the Companies and their respective Subsidiaries with any Customers set forth
in Schedule 2.21.
Section 2.22 Intellectual Property. (a) Except as set forth on Schedule
2.22, each of the Companies has good title to or the right to use all material
copyrights, patents, trademarks (registered or unregistered), trade names and
service marks and applications therefor and other material intellectual
property and proprietary rights, whether or not subject to statutory
registration or protection, necessary for the conduct of any of their
respective businesses as currently conducted (collectively, "Intellectual
Property"). Schedule 2.22 sets forth a list of the registered and unregistered
trademarks owned or used by each of the Companies and all jurisdictions in
which such trademarks are registered or applied for and all registration and
application numbers. Except as set forth in Schedule 2.22, the consummation of
the transactions contemplated hereby will not conflict with, alter or impair
any such rights.
(b) Except as set forth on Schedule 2.22, neither the Companies nor any
of their respective Subsidiaries has granted any options, licenses or
agreements of any kind relating to Intellectual Property listed in Schedule
2.22 or the marketing or distribution thereof. Neither of the Companies nor
any of their respective Subsidiaries is bound by or a party to any options,
licenses or agreements of any kind relating to the Intellectual Property of
any other person, except as set forth in Schedule 2.22 and except for
agreements relating to computer software licensed to any of the Companies or
any of their respective Subsidiaries in the ordinary course of business.
Subject to the rights of third parties set forth in Schedule 2.22, all
Intellectual Property is free and clear of the claims of others and of all
liens, security interests and encumbrances whatsoever. The conduct of the
business of each of the Companies as presently conducted does not violate,
conflict with or infringe the intellectual property of any other person except
where such infringement would not have a Material Adverse Effect. Except as
set forth in Schedule 2.22, (i) no claims are pending, or to the knowledge of
each Company, threatened, against either of the Companies by any person with
respect to the ownership, validity, enforceability, effectiveness or use of
any Intellectual Property and (ii) during the past two years neither of the
Companies have received any communications alleging that the Companies or any
of their respective Subsidiaries has violated any rights relating to
intellectual property of any Person.
Section 2.23 Environmental Liability.
For purposes of this Section 2.23, the following definitions shall apply:
In this paragraph, where the context admits--
"Environment" means air (including, without limitation, that within
buildings or natural or man-made structures, whether above or below
ground), water (including, without limitation, inland fresh waters and
ground waters as defined in Section 104(1)(d) of the Water Resources Act
1991) and land (including, without limitation, soil and river beds under
any water as described above, surface land and sub-surface land) and all
other matter and energy, in whatever form, state, compositions or
combinations, at whatever level and in or under whatever forces, systems,
cycles or other conditions occurring (whether as elements or compounds,
whether as radioactivity, heat, light, sound or other electromagnetic
radiation or wave forms, whether in solid, liquid or gaseous state,
whether in animal, vegetable, mineral, organic or inorganic forms and
whether in a state of equilibrium or reactivity) anywhere in, on, around
or affecting the world or any part of it (including without limitation
its atmosphere and orbital path);
"Hazardous Substance" means any waste and/or any substance (whether
solid, liquid, gas, noise, ion, vapour, electromagnetic or radiation)
which alone or in combination with any other substance is hazardous,
toxic, radioactive, explosive or capable of polluting, damaging or
otherwise adversely affecting or impairing the Environment or causing
harm to the health, well-being or existence (now or in the future) of any
human being or any other living organism;
"Permit" means any consent, approval, authorisation, exemption, licence,
order or permission;
"Relevant Law" means a requirement of or duty imposed by international
law, EU law, the common law, United Kingdom legislation and subordinate
or delegated legislation, a judgement, order or award of any court, or
European Community regulations or directives having the force of law in
the United Kingdom, which in any case relate to the protection of the
Environment (or any part of it), the control of discharges or emissions,
the prevention of harm to or impairment of the health, well-being or
existence (now or in the future) of any human being or of any other
living organism, or to the storage, disposal, handling or transport of
any Hazardous Substance.
(a) To the knowledge of the Companies, except as set forth or referred to
in Schedule 2.23 no allegation or claim of any violation or failure to comply
with the requirements of any Relevant Law has been received by either of the
Companies or any of their respective Subsidiaries and to the knowledge of the
Companies there are no circumstances which might give rise to such a claim.
Except as set forth or referred to in Schedule 2.23, the Company has not
received any notice of equivalent nature, or any judgement, order, decree,
award, demand or decision in respect of the Environmental from any court,
tribunal, arbitrator or governmental or regulatory authority and to the
knowledge of the Companies there have been no complaints, investigations,
enquiries, requests for information or other indications of any possible
claims or legal actions in respect of the Environment from any Person.
(b) To the knowledge of the Companies and except as set forth or referred
to in Schedule 2.23 during or prior to the period of its or any of its
Subsidiaries' ownership or operation of their respective current properties
there were no releases or threatened releases of Hazardous Substances in or
under or affecting any such property.
(c) Except as set forth or referred to in Schedule 2.23, each of the
Companies and their respective Subsidiaries has obtained all material Permits
required by all Relevant Laws in relation to the conduct of its business and
has complied with the material terms of the such Permits in all material
respects.
Section 2.24 Brokers. No brokers or finders that have acted for
CarrAmerica in connection with this Agreement except for ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
Section 2.25 Competition. Neither of the Companies has been nor is it
concerned in any agreements or arrangements which infringed or infringes or
which have or should have been registered under or which have or to the
Companies' knowledge may become the subject of any reference, inquiry,
proceeding, report, assurance or undertaking under or in respect of the
Restrictive Trade Practices Acts 1976 and 1977, the Fair Trading ▇▇▇ ▇▇▇▇,
Article 81, 82, 85 or Article 86, if applicable, of the Treaty of Rome, the
Competition ▇▇▇ ▇▇▇▇, the Competition ▇▇▇ ▇▇▇▇ or any other anti-trust,
anti-restrictive practice or similar legislation within the United Kingdom and
neither of the Companies has made or, to each of the Companies' knowledge,
threatened to make any complaint against any other person to any relevant
authority under any law or legislation referred to in this paragraph.
Section 2.26 Data Protection. Except as set forth in Schedule 2.17,
the Companies and each of their Subsidiaries hold all necessary United Kingdom
data protection registrations as required under United Kingdom legislation in
respect of all personal data (as that expression is defined in the United
Kingdom data protection legislation) other than those the absence of which
would have Material Adverse Effect.
Section 2.27 Equivalence. For the purpose of construction, the references
in the representations and warranties contained herein to (i) any statutory
provision enacted, or accounting principles applying, in the United States
shall be deemed to include references to any corresponding provision in the
local legislation and (where relevant) to generally accepted accounting
principles applying in the country or state of incorporation, (ii) any
governmental or administrative authority or agency shall be deemed to include
references to the equivalent federal state or local governmental or
administrative authority or agency; and (iii) certificates of incorporations
or by-laws shall be deemed to include references to the equivalent documents
(including memoranda and articles of association or statutes) which describe
the governance of the Companies.
Section 2.28 MAM Investment. OmniUK and certain of its Subsidiaries have
agreed to invest up to Lire 20 million in Mercury Executive Offices, L.P. on
the terms and conditions set forth in the limited partnership agreement, dated
November 16, 1998 (the "MAM Investment"), of which at least Lire 15,594,241
has been funded. So long as VANTAS satisfies its obligations under Section
5.4, no consent is necessary under the Limited Partnership Agreement, dated 16
November, 1998, constituting the Mercury Executive Offices, L.P. or the
Management Agreement with respect thereto, in order to maintain such contracts
or arrangements in full force and effect following the Closing.
Section 2.29 Contingent Payments. Except as set forth in Section 5.3,
there are no contingent payment obligations or "earn-outs" which are or may
become payable in connection with center acquisitions made by the Companies or
any of their respective Subsidiaries prior to the date of this Agreement.
(B) CarrAmerica hereby represents and warrants to VANTAS as follows:
Section 2.1 Authority. CarrAmerica has all requisite corporate power and
authority to enter into this Agreement, to perform its obligations hereunder
and to consummate the transactions contemplated hereby. All acts and other
proceedings required to be taken by CarrAmerica to authorize the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby have been duly and properly taken. This
Agreement has been duly executed and delivered by a duly authorized officer of
CarrAmerica and constitutes a legal, valid and binding obligation of
CarrAmerica, enforceable against CarrAmerica in accordance with its terms
except insofar as enforcement thereof may be limited by bankruptcy, insolvency
or other laws relating to or affecting enforcement of creditors' rights
generally including such general equity principles as may apply in the
enforcement of creditors' rights.
Section 2.2. No Conflicts; Consents. The execution and delivery of this
Agreement by CarrAmerica does not, and the consummation of the transactions
contemplated hereby and compliance by CarrAmerica with the terms hereof will
not, conflict with, or result in any violation of or default (with or without
notice or lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any obligation or to material
loss of a benefit under, or result in the creation of any lien, charge or
encumbrance of any kind upon any of the properties or assets of such Seller
under, any provision of (i) the certificate of incorporation or by-laws (or
equivalent organizational document) of CarrAmerica, (ii) any material note,
bond, mortgage, indenture, deed of trust, loan document, license, lease,
contract, commitment, agreement or arrangement to which CarrAmerica is a party
or by which CarrAmerica or any of its properties or assets is bound or (iii)
any judgment, order or decree, or statute, law, ordinance, rule or regulation,
applicable to CarrAmerica or any of its properties or assets. No consent,
approval, license, permit, order or authorization of, or registration,
declaration or filing with, any Federal, state, local or foreign government or
any court of competent jurisdiction, administrative agency or commission or
other governmental authority or instrumentality, domestic or foreign, or any
national securities or commodities exchange or other regulatory or
self-regulatory body or association is required to be obtained or made by or
with respect to CarrAmerica in connection with the execution, delivery and
performance of this Agreement by CarrAmerica or the consummation of the
transactions contemplated hereby, other than compliance with any filings under
the HSR Act.
ARTICLE III
Representations and Warranties of VANTAS
VANTAS hereby represents and warrants to CarrAmerica as follows:
Section 3.1 Organization and Standing. VANTAS is duly organized, validly
existing and in good standing under the laws of the State of Delaware; has all
requisite power and authority necessary to carry on its business as presently
conducted and to enable it to own, lease or otherwise hold its properties and
assets; and is duly qualified to do business and is in good standing in each
jurisdiction in which the conduct or nature of its business or the ownership,
leasing or holding of its properties or assets makes such qualification
necessary, except such jurisdictions where the failure to be so qualified or
in good standing, individually or in the aggregate, would not have a material
adverse effect on the business, financial condition or results of operations
of VANTAS and its Subsidiaries, taken as a whole.
Section 3.2 Authority. VANTAS has all requisite corporate power and
authority to enter into this Agreement, to perform its obligations hereunder
to consummate the transactions contemplated hereby. All acts and other
proceedings required to be taken by VANTAS to authorize the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby have been duly and properly taken. This
Agreement has been duly executed and delivered by a duly authorized officer of
VANTAS and constitutes a legal, valid and binding obligation of VANTAS,
enforceable against VANTAS in accordance with its terms except insofar as
enforcement thereof may be limited by bankruptcy, insolvency or other laws
relating to or affecting enforcement of creditors' rights generally including
such general equity principles as may apply in the enforcement of creditors'
rights.
Section 3.3 No Conflicts; Consents. The execution and delivery of this
Agreement by VANTAS does not, and the consummation of the transactions
contemplated hereby and compliance by VANTAS with the terms hereof will not,
conflict with, or result in any violation of or default (with or without
notice or lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any obligation or to a material
loss of a benefit under, or result in the creation of any lien, charge or
encumbrance of any kind upon any of the properties or assets of VANTAS under,
any provision of (i) the Certificate of Incorporation or By-Laws of VANTAS,
(ii) any material note, bond, mortgage, indenture, deed of trust, loan
document, license, lease, contract, commitment, agreement or arrangement to
which VANTAS is a party or by which it or any of its properties or assets is
bound or (iii) any judgment, order or decree, or statute, law, ordinance, rule
or regulation, applicable to VANTAS or any of its properties or assets. No
consent, approval, license, permit, order or authorization of, or
registration, declaration or filing with, any Governmental Entity is required
to be obtained or made by or with respect to VANTAS in connection with the
execution, delivery and performance of this Agreement by VANTAS or the
consummation of the transactions contemplated hereby, other than compliance
with any filings under the HSR Act.
ARTICLE IV
Agreements of OMNI UK and LuxCo
Section 4.1 Each of Omni UK and LuxCo and, as applicable, CarrAmerica
covenants and agrees as follows:
(a) Access. Prior to the Closing, the Companies shall, and shall cause
their respective Subsidiaries to, give VANTAS and its respective officers,
employees, representatives, counsel financing sources and accountants and
their respective counsel, auditors and authorized representatives full access,
during normal business hours and upon reasonable notice, to the personnel,
properties, financial statements, contracts, books, records, working papers
and other relevant information pertaining thereto each of the Companies and
their respective Subsidiaries and shall request and use commercially
reasonable efforts to cause their respective employees, counsel, auditors and
financial advisors to cooperate with VANTAS in their preparation of any rating
agency presentation materials, private placement prospectus or offering
memorandum, syndication book or similar marketing materials ("Financing
Materials") in connection with a transaction to sell securities of HQ in
connection with the HQ Merger or obtain a credit facility to finance VANTAS'
obligations pursuant to this Agreement and RSI's obligations pursuant to the
Stock Purchase Agreement and in their investigation of the businesses of each
of the Companies and their respective Subsidiaries on a consolidated basis,
including by furnishing copies of data or information pertaining to the
businesses of the Companies and their respective Subsidiaries for purposes of
due diligence or, with the prior written approval of CarrAmerica, which
approval will not be reasonably withheld, for inclusion in any Financing
Materials in connection with a transaction to sell securities of HQ in
connection with the HQ Merger or obtain a bank credit facility to finance
VANTAS's obligations pursuant to this Agreement and RSI's obligations pursuant
to the Stock Purchase Agreement. Prior to the Closing, the Companies shall,
and shall cause their respective Subsidiaries, officers and employees to,
furnish to VANTAS and its respective officers, employees, representatives,
counsel and accountants such financial, tax and operating data and other
information with respect to the business, properties and assets of each of the
Companies and their respective Subsidiaries as VANTAS or any such person shall
from time to time reasonably request, and the Companies shall, and shall cause
their respective Subsidiaries, directors, officers and employees to, cooperate
with, and the Companies shall request their respective independent public
accountants and independent legal counsel to cooperate with, VANTAS and its
respective officers, employees, representatives, counsel and accountants so as
to enable VANTAS to be kept fully informed with respect to the business,
assets, financial condition, results of operations and prospects of the
Companies.
(b) Ordinary Conduct. Except as set forth in the capital expenditure and
operating budgets (the "CapEx Budgets") of each of the Companies attached
hereto as part of Schedule 4.1(b) or otherwise expressly permitted by the
terms of this Agreement, from the date hereof to the Closing, the Companies
and each of their respective Subsidiaries shall continue to conduct their
business in the ordinary course in substantially the same manner as presently
conducted and shall make all reasonable efforts consistent with past practices
to preserve their respective relationships with customers and others with whom
they deal. The Companies and their respective Subsidiaries shall not take any
action that would, or that could reasonably be expected to, result in (A) any
of the representations and warranties (including, but not limited to, those
set forth in Article II) of the Companies set forth in this Agreement that are
qualified as to materiality becoming untrue or incorrect, (B) any of such
representations and warranties that are not so qualified becoming untrue or
incorrect in any material respect or (C) any of the conditions to the Closing
set forth in Section 6.3 not being satisfied. In addition, except as set forth
in the CapEx Budgets or Schedule 4.1(b) or otherwise expressly permitted by
the terms of this Agreement, each of the Companies and their respective
Subsidiaries shall not do any of the following without the prior written
consent of VANTAS:
(i) adjust, split, combine or reclassify any of their respective
capital stock; make, declare or pay any dividend or make any other
distribution on, or directly or indirectly redeem, purchase or otherwise
acquire, any shares of its capital stock, membership or partnership
interests or any securities or obligations convertible into or
exchangeable for any shares of their respective capital stock or
membership or partnership interests; issue, deliver or sell any shares of
its capital stock or membership or partnership interests or any
securities convertible into or exercisable for, or any rights, options or
warrants to acquire, any such shares or securities (whether for cash or
property) to any person;
(ii) sell, lease, transfer or otherwise dispose of, or subject to
any Lien, any of their respective properties or assets, or cancel, release
or assign any material indebtedness owed to either of the Companies or any
material claim held by either of the Companies, except (i) in bona fide
arm's length transactions made in the ordinary course of business
consistent with past practice or (ii) pursuant to contracts or agreements
in force as of the date of this Agreement and listed in Schedule 2.13;
(iii) incur or assume any liabilities or incur any indebtedness for
borrowed money, assume, guarantee, endorse or otherwise as an
accommodation become responsible for the obligations of any other
individual, corporation or entity (other than a wholly owned Subsidiary)
except pursuant to contracts or agreements listed in Schedule 2.13 or
except for loans by CarrAmerica necessary to fund the business of the
Companies in the ordinary course or to fund committed developments;
(iv) make any material acquisition or investment either by purchase
of stock or securities, merger or consolidation, contributions to
capital, property transfers, or purchases of any property or assets of
any other individual, corporation or other entity except pursuant to
contracts or agreements in force as of the date of this Agreement and
listed in Schedule 2.13;
(v) make any material change in any Omni UK Real Property Lease or
LuxCo Real Property Lease, as applicable, or other contracts or enter
into, renew, fail to renew, terminate or permit to be terminated any Omni
UK Real Property Lease or LuxCo Real Property Lease, as applicable, any
other contract or agreement that calls for aggregate annual payments of
$25,000 or more and which either (i) is not terminable by either of the
Companies or their respective Subsidiary, as applicable, at will on 60
days or less notice without payment of a penalty or (ii) has a term of
more than six months;
(vi) except in the ordinary course of business consistent with past
practices (but in no event greater than 10% with respect to any
employees), increase the compensation or fringe benefits of any of their
respective employees or pay any bonus, pension or retirement allowance
not required by any existing plan or agreement to which any such
employees become a party, materially amend or commit themselves to any
pension, retirement, profit-sharing or welfare benefit plan or agreement
or employment agreement with or for the benefit of any employee or
accelerate the vesting of any stock options or other stock-based
compensation except for accelerations required by any existing plan or
agreement set forth on Schedule 2.16;
(vii) other than with respect to the MAM Investment, make any loans,
advances or capital contributions to any other person, other than loans
and advances to their respective Subsidiaries;
(viii) make any capital expenditures in excess of (A) $25,000
individually or (B) $100,000 in the aggregate, other than expenditures
necessary to maintain existing assets in good repair not to exceed in the
aggregate $250,000;
(ix) Intentionally Omitted;
(x) settle any claim, action or proceeding involving money damages
except in the ordinary course of business consistent with past practice
for settlements for monetary damages that in any event do not,
individually or in the aggregate with any other such settlements, exceed
$100,000; provided, however, that notwithstanding the foregoing, in no
event may either of the Companies settle such claim, action or proceeding
without VANTAS' prior written consent if such settlement imposes any
ongoing duties, obligations or liabilities on the Companies which can
reasonably be expected to require either of the Companies to incur
liabilities in excess of $100,000 or unduly impair the conduct of either
of the Companies' business;
(xi) Intentionally Omitted;
(xii) amend their respective Certificates of Incorporation, By-laws
or similar governing documents, as the case may be;
(xiii) enter into any new line of business;
(xiv) enter into or perform any commitment, contractual obligation,
borrowing, capital expenditure or other transaction (except pursuant to
the Notes or agreements in force as of the date of this Agreement and
listed on Schedule 2.13) with any officer, director, consultant or
Affiliate of either of the Companies or any of their respective
Subsidiaries;
(xv) make any changes in their respective accounting methods,
except as may be required under law, rule, regulation or generally accepted
accounting principles in the jurisdiction of incorporation of the
applicable Company, in each case as concurred in by such party's
independent public accountants; or
(xvi) agree to, or make any commitment to, do any of the foregoing.
Each of the Companies recognizes that the agreements contained in this
Section 4.1(b) are an integral part of the transactions contemplated by this
Agreement and that without these agreements, VANTAS would not enter into this
Agreement; accordingly, in the event of the breach by either of the Companies
of the terms of this Section 4.1(b), VANTAS shall be entitled, if it so
elects, to institute and prosecute proceedings in any court of competent
jurisdiction, to enforce the specific performance thereof by either of the
Companies, to enjoin either of the Companies from actions or omissions in
violation of this Section 4.1(b) or to otherwise obtain preliminary injunctive
relief (without the necessity to post a bond) from such actions or omissions.
(c) Confidentiality. Each of the Companies shall keep all information
provided to it or any of its representatives pursuant to this Agreement
confidential, and each of the Companies shall not disclose such information to
any Persons other than the directors, officers, employees, financial advisors,
legal advisors, accountants and consultants of the respective Companies who
reasonably need to have access to the confidential information and (i) in the
case of directors, officers, employees, legal advisors and the principal
accountants of each of the Companies, who are advised of the confidential
nature of such information, and (ii) in the case of any financial advisors,
other accountants or consultants of each of the Companies, who execute an
agreement with VANTAS agreeing to maintain confidentiality of such
information; provided, however, the foregoing obligation of each of the
Companies shall (A) not relate to any information that (i) is or becomes
generally available other than as a result of unauthorized disclosure by each
of the Companies or by Persons to whom each of the Companies has made such
information available, or (ii) is or becomes available to each of the
Companies on a non-confidential basis from a third party that is not, to
either of the Companies' knowledge, bound by any other confidentiality
agreement with VANTAS or (B) prohibit disclosure of any information of each of
the Companies believes in good faith that disclosure is required by law, rule,
regulation, court order or other legal or governmental process (including SEC
or GAAP reporting requirements) or if each of the Companies believes in good
faith that disclosure is advisable to explain a material deviation from either
of the Companies' expected financial results that arises from the transactions
contemplated hereby; provided, further that in the case of a disclosure
described in clause (B) above, each of the Companies shall (i) give prior
notice to VANTAS of any such disclosure and (ii) consult with VANTAS prior to
making such disclosure. Notwithstanding anything to the contrary contained
herein, the covenant of VANTAS set forth in this Section 4.1(c) shall
terminate 3 years after the Closing Date.
(d) Supplemental Disclosure. Each of the Companies shall give prompt
notice to VANTAS of (i) any representation or warranty made by either of the
Companies, contained in this Agreement that is qualified as to materiality
becoming untrue or inaccurate or any such representation or warranty that is
not so qualified becoming untrue or inaccurate in any material respect or (ii)
the failure by either of the Companies to comply with or satisfy in any
material respect any covenant, agreement or condition to be complied with or
satisfied by either of the Companies under this Agreement; provided, however,
that no such notification shall affect the representations, warranties,
covenants or agreements of the parties or the conditions to the obligations of
the parties under this Agreement.
(e) Summaries. Not later than two weeks prior to the Closing Date,
CarrAmerica shall deliver to VANTAS a true and accurate summary (the
"Summary") of the OmniUK Real Property Leases and the LuxCo Real Property
Leases indicating for each such lease (i) location, (ii) rent, (iii) term,
(iv) square footage of space demised thereunder, and (v) whether or not the
consent of the landlord is required in order for VANTAS to be able to succeed
to the rights of the tenant under such OmniUK Real Property Lease and LuxCo
Real Property Lease.
ARTICLE V
Mutual Covenants
Section 5.1 Consummation of the Transactions. Subject to the terms and
conditions of this Agreement, each party shall use its commercially reasonable
efforts to cause the Closing to occur upon the terms and conditions hereof.
CarrAmerica and the Companies shall cooperate with VANTAS, and VANTAS shall
cooperate with CarrAmerica and the Companies, in filing any necessary
applications, reports or other documents with, giving any notices to, and
seeking any consents from, all Governmental Entities and all third parties as
may be required in connection with the consummation of the transactions
contemplated by this Agreement.
Section 5.2 Publicity. From the date of the execution and delivery of
this Agreement through the Closing, no public release or announcement
concerning the transactions contemplated hereby shall be issued by any party
hereto without the prior consent of (i) VANTAS in the case of a release or an
announcement by CarrAmerica or (ii) CarrAmerica in the case of a release or an
announcement by VANTAS (in each case which consent shall not be unreasonably
withheld), except as such release or announcement may be required by law or
the rules or regulations of any United States or foreign securities exchange,
in which case the party required to make the release or announcement shall, if
practicable, allow VANTAS or CarrAmerica, as the case may be, reasonable time
to comment on such release or announcement in advance of such issuance.
Section 5.3 Payment for and Assumption of the Loan Notes. At the Closing,
CarrAmerica will assume the obligations under those certain loan notes dated
as of May 15, 1998 and January 8, 2000 (the "Loan Notes"), and concurrently
therewith, VANTAS shall pay CarrAmerica an amount equal to $21,229,327
(reduced by the amount of any payments thereon prior to Closing). At Closing,
the parties shall enter into an assumption agreement in the form and substance
reasonably acceptable to the parties hereto (the "Assumption Agreement"). At
Closing, CarrAmerica shall deliver to VANTAS collateral reasonably
satisfactory to VANTAS to secure CarrAmerica's obligations under the
Assumption Agreement which collateral shall be released at such time as VANTAS
is released from the obligation or at the time such obligation is satisfied or
expires.
Section 5.4 MAM Investment. Prior to Closing, RSI shall execute a
replacement letter(s) of undertaking to replace that certain letter(s) of
undertaking delivered by CarrAmerica to the MAM in connection with its
investment in MAM.
Section 5.5 Brook Street or Hammersmith Collateral. At the Closing, RSI
shall provide $922,530 to OmniUK to replace the cash or certificate of deposit
securing OmniUK's reimbursement obligation to Barklays Bank with respect to a
letter of credit securing the Brook Street or Hammersmith lease, as
applicable, and OmniUK shall pay such funds to ▇▇▇▇ America at the Closing.
ARTICLE VI
Conditions to Closing
Section 6.1 Each Party's Obligation. The respective obligation of each
party hereto to effect the transactions contemplated hereby is subject to the
satisfaction or waiver of the following conditions: (i) no statute, rule,
regulation, executive order, decree, temporary restraining order, preliminary
or permanent injunction or other order shall have been enacted, entered,
promulgated, enforced or issued by any Governmental Entity that prohibits the
purchase and sale of the Shares or the Notes or any of the other material
transactions contemplated by this Agreement and (ii) no action, claim,
proceeding or investigation shall be pending or threatened by any Governmental
Entity (other than a court acting in response to an action, claim or
proceeding by a non-Governmental Entity) that, if successful, would result in
any of the foregoing effects.
Section 6.2 CarrAmerica's Obligation. The obligations of CarrAmerica to
sell and deliver the Shares and the Notes to VANTAS and assume the Loan Notes
are subject to the satisfaction (or waiver by CarrAmerica) as of the Closing
of the following conditions:
(a) The representations and warranties of VANTAS made in this Agreement
shall be true and correct as of the date hereof and as of the time of the
Closing as though made as of such time, except to the extent such
representations and warranties expressly relate to an earlier date (in which
case such representations and warranties shall be true and correct on and as
of such earlier date) and VANTAS and RSI shall have duly performed, complied
with and satisfied in all material respects all covenants, agreements and
conditions required by this Agreement to be performed, complied with or
satisfied by VANTAS or RSI, as applicable, by the time of Closing, except
where the failure of such representations and warranties to be true and
correct and/or the failure to perform, comply with and satisfy such covenants,
agreements and conditions would not constitute a Company Transaction Value
Impairment. VANTAS and RSI shall have delivered to CarrAmerica a certificate
dated the Closing Date and signed by an officer of each of VANTAS and RSI
confirming the foregoing.
(b) VANTAS shall have delivered to CarrAmerica the cash required by
Sections 1.2 and 5.3.
(c) The HQ Merger shall have been consummated immediately prior to the
Closing hereunder.
Section 6.3 VANTAS' Obligation. The obligation of VANTAS to purchase the
Shares and the Notes from CarrAmerica is subject to the satisfaction (or
waiver by VANTAS) as of the Closing of the following conditions:
(a) The representations and warranties of CarrAmerica made in this
Agreement shall be true and correct, as of the time of the Closing as though
made as of such time, except to the extent such representations and warranties
expressly relate to an earlier date (in which case such representations and
warranties shall be true and correct on and as of such earlier date), and each
of CarrAmerica and the Companies shall have duly performed, complied with and
satisfied in all material respects all covenants, agreements and conditions
required by this Agreement to be performed, complied with or satisfied by
CarrAmerica and/or the Companies, as applicable, by the time of the Closing,
except where the failure of such representations and warranties to be true and
correct and/or the failure to perform, comply with and satisfy such covenants,
agreements and conditions would not constitute a VANTAS Transaction Value
Impairment (other than those contained in Sections 2.4(b) and 2.4(c), which
shall be true and correct). CarrAmerica shall have delivered to VANTAS a
certificate dated the Closing Date and signed by an officer of CarrAmerica
confirming the foregoing.
(b) CarrAmerica shall have delivered the stock certificates representing
the Shares duly endorsed for transfer and the Notes pursuant to Section 1.2.
(c) The HQ Merger shall have been consummated immediately prior to the
Closing hereunder.
(d) CarrAmerica shall have executed and delivered the Assumption
Agreement, in form and substance reasonably satisfactory to the parties hereto
and otherwise satisfying the requirements of Section 5.3.
Section 6.4 Frustration of Closing Conditions. None of CarrAmerica or
VANTAS may rely on the failure of any condition set forth in Section 6.1,
Section 6.2 or Section 6.3, respectively, to be satisfied if such failure was
caused by such party's failure to perform its obligations hereunder or to use
its commercially reasonable efforts to cause the Closing to occur as required
by Section 5.1.
ARTICLE VII
Further Assurances
From time to time, as and when requested by another party hereto, a party
hereto shall execute and deliver, or cause to be executed and delivered, all
such documents and instruments and shall take, or cause to be taken, all such
further or other actions as such other party may reasonably deem necessary or
desirable to consummate the transactions contemplated by this Agreement.
ARTICLE VIII
Assignment
This Agreement and the rights and obligations hereunder shall not be
assignable or transferable by (i) the Seller without the prior written consent
of VANTAS or (ii) by VANTAS without the prior written consent of Seller;
provided, that such assignment shall not limit or affect VANTAS's obligations
hereunder; and provided, further, that the Seller may assign its rights and
obligations hereunder in connection with a merger, consolidation or other
similar business combination involving Seller or a sale of all or
substantially all of Seller's assets. Any attempted assignment in violation of
this Section 8 shall be void ab initio and of no further force and effect.
ARTICLE IX
No Third-Party Beneficiaries
This Agreement is for the sole benefit of each of the parties hereto and
their successors and permitted assigns, and nothing herein expressed or
implied shall give or be construed to give to any person, other than the
parties hereto and such successors and assigns, any legal or equitable rights
hereunder.
ARTICLE X
Termination
(a) Anything contained herein to the contrary notwithstanding this
Agreement shall terminate automatically upon the termination of the Merger
Agreement or the Stock Purchase Agreement in accordance with its terms. In
addition, anything contained herein to the contrary notwithstanding this
Agreement may be terminated and the transactions contemplated hereby abandoned
at any time prior to the Closing:
(i) by mutual written consent of CarrAmerica and VANTAS;
(ii) by CarrAmerica if the Company has the right to terminate the
Merger Agreement in accordance with its terms;
(iii) by RSI if VANTAS has the right to terminate the Merger
Agreement in accordance with its terms;
(iv) by CarrAmerica or Buyer (provided, however, in the case of
Buyer, only if Buyer has given CarrAmerica at least five business days'
prior written notice of its intention to terminate pursuant to this
Section 12(a)(iv), which notice may not be given prior to May 1, 2000),
if the Closing does not occur on or prior to April 30, 2000;
(v) by CarrAmerica or the Buyer at any time prior to the Closing if
any Governmental Entity shall have issued a judgment, order or decree or
taken any other action permanently enjoining, restraining or otherwise
prohibiting the purchase of the Shares or Notes or any of the other
material transactions contemplated by this Agreement, and such judgment,
order or decree or other action shall have become final and
nonappealable;
(vi)by CarrAmerica upon a breach of any representation, warranty or
covenant on the part of the Buyer set forth in this Agreement, or if any
representation or warranty shall become untrue, and such breach or
subsequent failure to remain true constitutes a Company Transaction Value
Impairment with the result that, in either such case, the conditions set
forth in Section 6.2 shall have become incapable of being satisfied by
April 30, 2000 (or otherwise extended); or
(vii) by the Buyer upon a breach of any representation, warranty or
covenant of the Companies or CarrAmerica set forth in this Agreement, of
if any representation or warranty of CarrAmerica shall become untrue, and
such breach or subsequent failure to remain true constitutes a VANTAS
Transaction Value Impairment with the result that, in either such case,
the conditions set forth in Section 6.3 shall have become incapable of
being satisfied by April 30, 2000 (or as otherwise extended).
(b) In the event of termination by CarrAmerica or VANTAS pursuant to this
Article X, written notice thereof setting forth the reasons therefore shall
forthwith be given to the other party and VANTAS, and the transactions
contemplated by this Agreement shall be terminated, without further action by
any party.
(c) If this Agreement is terminated and the transactions contemplated
hereby are abandoned as described in this Article X, this Agreement shall
become void ab initio and of no further force or effect, except for the
provisions of (i) Section 5(b) relating to publicity and (ii) this Article X.
Nothing in this Article X shall be deemed to release any party from any
liability for any breach by such party of the terms and provisions of this
Agreement, the Stock Purchase Agreement or the Merger Agreement.
ARTICLE XI
Intentionally Omitted
ARTICLE XII
Amendments
No amendment, modification or waiver in respect of this Agreement shall
be effective unless it shall be in writing and signed by the party against
whom such amendment, modification or waiver is asserted.
ARTICLE XIII
Notices
All notices or other communications required or permitted to be given
hereunder shall be in writing and shall be delivered by hand or sent by
prepaid telex, cable or telecopy or sent, postage prepaid, by registered,
certified or express mail or reputable overnight courier service and shall be
deemed given when so delivered by hand, telexed, cabled or telecopied, or if
mailed, three days after mailing (one business day in the case of express mail
or overnight courier service), as follows:
(i) if to the Seller,
CarrAmerica Realty Corporation
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Telecopy No: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, General Counsel
with a copy to:
▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P.
Columbia Square
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇
Telecopy No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇; and
(ii) if to the Companies:
OmniUK
▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
LuxCo
▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
with copies to:
HQ Global Workplaces, Inc.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇, General Counsel
and
▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P.
Columbia Square
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇
Telecopy No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇; and
(iii) if to VANTAS
c/o Reckson Service Industries, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
with copies to:
▇▇▇▇▇ & Wood LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
or such other address as any party may from time to time specify by written
notice to the other parties hereto.
ARTICLE XIV
Interpretation; Exhibits and Schedules
The headings contained in this Agreement and in any Exhibit to this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. All Exhibits and Schedules
annexed hereto or referred to herein are hereby incorporated in and made a
part of this Agreement as if set forth in full herein. Any capitalized terms
used in any Schedule or Exhibit but not otherwise defined therein, shall have
the meaning as defined in this Agreement. This Agreement is gender neutral.
Any word in this Agreement that refers to a particular gender shall also refer
to all other genders, including masculine, feminine and neuter.
ARTICLE XV
Counterparts
This Agreement may be executed in one or more counterparts, all of which
shall be considered one and the same agreement, and shall become effective
when one or more such counterparts have been signed by each of the parties and
delivered to the other parties.
ARTICLE XVI
Litigation Costs
If any litigation with respect to the obligations of the parties under
this Agreement results in a final nonappealable order of a court of competent
jurisdiction that results in a final disposition of such litigation, the
prevailing party, as determined by the court ordering such disposition, shall
be entitled to reasonable attorneys' fees as shall be determined by such
court. Contingent or other percentage compensation arrangements shall not be
considered reasonable attorneys' fees.
ARTICLE XVII
Entire Agreement
This Agreement contains the entire agreement and understanding between
the parties hereto with respect to the subject matter hereof and supersedes
all prior agreements and understandings relating to such subject matter. The
parties hereto shall not be liable or bound to any other party in any manner
by any representations, warranties or covenants relating to such subject
matter except as specifically set forth herein.
ARTICLE XVIII
Intentionally Omitted
ARTICLE XIX
Severability
If any provision of this Agreement (or any portion thereof) or the
application of any such provision (or any portion thereof) to any person or
circumstance shall be held invalid, illegal or unenforceable in any respect by
a court of competent jurisdiction, such invalidity, illegality or
unenforceability shall not affect any other provision hereof (or the remaining
portion thereof) or the application of such provision to any other persons or
circumstances.
ARTICLE XX
Consent to Jurisdiction
The Buyer and RSI, on the one hand, and the Companies and CarrAmerica, on
the other hand, agree to commence any action, suit or proceeding arising out
of this Agreement or the transactions contemplated hereby against the other
party either in a federal court located in the State of Delaware or if such
suit, action or other proceeding may not be brought in such court for
jurisdictional reasons, in a Delaware state court. Each party to this
Agreement submits and consents to personal jurisdiction in any such
litigation. The Buyer and RSI, on the one hand, and the Companies and
CarrAmerica, on the other hand, further agree that service of any process,
summons, notice or document delivered by U.S. registered mail to such party's
respective address set forth above shall be effective service of process for
any action, suit or proceeding in Delaware with respect to any matters to
which it has submitted to jurisdiction in this Article XX. The Buyer, on the
one hand, and the Companies, on the other hand, irrevocably and
unconditionally waive any objection to the laying of venue of any action, suit
or proceeding arising out of this Agreement or the transactions contemplated
hereby in (i) any Delaware state court or (ii) any federal court located in
the State of Delaware, and hereby further irrevocably and unconditionally
waives and agrees not to plead or claim in any such court that any such
action, suit or proceeding brought in any such court has been brought in an
inconvenient forum. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES TRIAL BY
JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT.
ARTICLE XXI
Governing Law
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of Delaware applicable to agreements made and to be
performed entirely within such State, without regard to the conflicts of law
principles of such State.
ARTICLE XXII
Disclosure Schedules
Any fact, circumstance, condition, document or other matter disclosed in
any Schedule referenced herein shall be deemed to have been disclosed for all
purposes under the Agreement including all other relevant Schedules, provided
that the relevance of the disclosure to such other Schedules can be reasonably
discerned from the applicable Schedule.
ARTICLE XXIII
Exclusive Remedy
The parties hereto acknowledge and agree that after the Closing, the
terms of the Indemnification Escrow Agreement shall be the sole remedy for any
breach of any of the representations and warranties contained herein (other
than breaches arising out of fraud) and in no event shall VANTAS or RSI have
any claim against OmniUK or LuxCo with respect to any such breach.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first written above.
CARRAMERICA REALTY CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
RECKSON SERVICES INDUSTRIES, INC.,
solely for the purposes of Section 5.4
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
____________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: E.V.P.
VANTAS INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
____________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Secretary
OmniOffices (UK) Limited (solely for
purposes of Article II, Article IV
and Article V)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
____________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Director
OmniOffices (Lux) 1929 Holding Company
S.A. (solely for purposes of
Article II, Article IV and Article V)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
____________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇ ▇▇▇▇▇
____________________________
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Director
Exhibit A
OmniOffices (UK) Limited 2,006,066 Class B Shares
OmniOffices (Lux) 1929 Holding Company S.A. 144 Class B Shares
[Exhibit B]
[List of Notes]