Second Amendment to Agreement and Plan of Merger among VANTAS, FrontLine Capital Group, HQ Global Workplaces, and CarrAmerica Realty

Summary

This amendment updates the terms of a previously agreed merger between VANTAS Incorporated, FrontLine Capital Group, HQ Global Workplaces, and CarrAmerica Realty Corporation. It revises certain schedules, financial covenants, share numbers, and ownership percentages in the original merger agreement. The amendment also includes a waiver of claims by FrontLine Capital Group against HQ Global Holdings and confirms the authority of all parties to enter into this amendment. The changes are effective as of May 31, 2000, and are legally binding on all signatories.

EX-10.1 2 0002.txt Exhibit 10.1 SECOND AMENDMENT TO AGREEMENT AND PLAN OF MERGER THIS SECOND AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this "Amendment") is entered into as of May 31, 2000 by and among VANTAS Incorporated, a Nevada corporation ("VANTAS"), and FrontLine Capital Group, a Delaware corporation (formerly known as Reckson Services Industries, Inc.) ("RSI"), on the one hand, and HQ Global Workplaces, Inc., a Delaware corporation (the "Company"), and CarrAmerica Realty Corporation, a Maryland corporation ("CarrAmerica"), on the other hand. W I T N E S S E T H WHEREAS, VANTAS and RSI, on the one hand, and the Company and CarrAmerica, on the other hand, have executed the Agreement and Plan of Merger dated as of January, 20, 2000 and as amended as of April 29, 2000 (such agreement, as heretofore, hereby or hereafter amended, the "Merger Agreement") pursuant to which VANTAS is to merge with and into the Company, with the Company being the Surviving Corporation; WHEREAS, the parties hereto intend to amend the Merger Agreement as provided herein; and WHEREAS, capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement. NOW, THEREFORE, in consideration of the aforesaid and the respective representations, warranties, covenants and agreements hereinafter set forth, the parties, intending to be legally bound, agree as follows: 1. The form of Indemnification and Escrow Agreement attached to the Merger Agreement as Exhibit E is hereby amended and restated in its entirety as the form of Indemnification and Escrow Agreement attached hereto as Exhibit A. 2. Schedule 1(e) to the Merger Agreement is hereby amended by deleting such Schedule in its entirety and replacing it with a new Schedule 1(e) attached to this Amendment. 3. Schedule 5(c) to the Merger Agreement is hereby amended by adding the following at the end thereto: "o With respect to the above-described Credit Agreement, such agreement contains certain financial covenants, one of which requires VANTAS not to exceed a maximum ratio of consolidated indebtedness to consolidated earnings before interest, income taxes, depreciation and amortization. There are also other covenants pertaining to additional financial ratios and limitations on capital expenditures. At March 31, 2000, VANTAS did not meet certain of its financial covenants." 4. Schedule 5(d) to the Merger Agreement is hereby amended by replacing the words "o 2,677,158 Series E Convertible Preferred Stock" in their entirety under the caption "Number of Shares Issued and Outstanding" and replacing the same with the words "o __________ Series E Convertible Preferred Stock". 5. Annex A to the Merger Agreement is hereby amended by replacing the number "955,555,556" in the Section entitled "HQ Ownership %" and replacing it with the number "962,211,634". 6. RSI hereby forever waves and discharges any claims that it may have against HQ Global Holdings, Inc., a Delaware corporation ("Holdco") under Section 11(a) of that certain Exchange Agreement dated as of June 1, 2000 by and between Holdco and RSI (the "Exchange Agreement") or otherwise as a result of a breach of the representations and warranties of Holdco contained in Section 2 of the Exchange Agreement. 7. The Company and CarrAmerica represent and warrant, each as to itself only, that each of the Company and CarrAmerica has the requisite capacity and authority, and has taken all action necessary in order, to execute, deliver and perform its respective obligations under this Amendment. This Amendment is a legal, valid and binding obligation of each of CarrAmerica and the Company, enforceable 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. 8. RSI and VANTAS represent and warrant, each as to itself only, that each of RSI and VANTAS has the requisite capacity and authority, and has taken all action necessary in order, to execute, deliver, and perform its respective obligations under this Amendment. This Amendment is a legal, valid and binding obligation of each of RSI and VANTAS, enforceable 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. 9. This Amendment and the other agreements referred to herein represent the entire understanding of the parties with respect to the subject matter contained herein. This Amendment may not be amended, modified or waived except in a writing signed by the party against whom enforcement of such amendment, modification or waiver is sought. This Amendment shall be construed and interpreted in accordance with the internal laws of the State of Delaware, without reference to the conflict of laws principles contained herein. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original, but all of which, when taken together, shall constitute one and the same instrument. 10. Section 19 (iii) to the Merger Agreement is hereby amended and restated by replacing it in its entirety with the following: "if to VANTAS or RSI, VANTAS Incorporated c/o FrontLine Capital Group 1350 Avenue of the Americas 32nd Street New York, NY, 10019 Telecopy No: (212) 931-8001 Attention: Scott H. Rechler Jason Barnett With copies to: Brown & Wood LLP One World Trade Center New York, NY 10048 Telecopy No: (212) 839-5599 Attention: Joseph W. Armbrust, Jr. J. Gerard Cummins" IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above. HQ GLOBAL WORKPLACES, INC. By: /s/ Joseph D. Wallace -------------------------------- Name: Joseph D. Wallace Title: Executive Vice President and Chief Operating Officer VANTAS INCORPORATED By: /s/ Stephen M. Rathkopf -------------------------------- Name: Stephen M. Rathkopf Title: Secretary CARRAMERICA REALTY CORPORATION By: /s/ Karen B. Dorigan -------------------------------- Name: Karen B. Dorigan Title: Managing Director FRONTLINE CAPITAL GROUP By: /s/ Jason Barnett -------------------------------- Name: Jason Barnett Title: Executive Vice President and General Counsel Schedule 1(e) Directors Name Class 1. Scott Rechler - Chairman 2003 2. Michael Maturo 2002 3. Stephen Rathkopf 2001 4. Thomas Carr 2003 5. Gary Kusin 2002 Exhibit A Form of Indemnification and Escrow Agreement