SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES AND EXCHANGE ACT OF 1934
Date of Report (Date of Earliest Event Reported): November 2, 1999
Charter Municipal Mortgage Acceptance Company
(Exact Name of Registrant as Specified in Charter)
Delaware
(State or other Jurisdiction of Incorporation)
1-13237 13-3949418
(Commission File Number) (IRS Employer Identification Number)
625 Madison Avenue, New York, NY 10022
(Address of Principal Executive Offices)
Registrant's telephone number, including area code: (212) 421-5333
Not Applicable
(Former Name or Former Address, if Changed Since Last Report
<PAGE>
Item 5. Other Events
On November 2, 1999, American Tax Exempt Bond Trust, a Delaware
business trust ("ATEBT"), Charter Municipal Mortgage Acceptance Company, a
Delaware business trust ("CharterMac"), and CM Holding Trust, a Delaware
business trust ("CharterMac Sub"), entered into an Agreement and Plan of
Merger (the "Merger Agreement"), a copy of which is filed as Exhibit 99.2
hereto and incorporated herein by reference, providing for the merger of ATEBT
(the "Merger") with and into CharterMac Sub, with CharterMac Sub as the
surviving trust in the Merger. Pursuant to the Merger Agreement and upon the
terms and subject to the conditions and limitations therein, each issued and
outstanding share of beneficial interest in ATEBT (the "ATEBT Shares") will be
converted into the right to receive 1.43112 shares of beneficial interest in
CharterMac (the "CharterMac Shares"). CharterMac and ATEBT are both managed by
affiliates of Related Capital Company.
Consummation of the Merger, which is expected in the first quarter
of 2000, is subject to various conditions, including approval of the Merger by
the shareholders of ATEBT. Prior to such shareholders' meetings, CharterMac
will file a registration statement with the Securities and Exchange Commission
registering under the Securities Act of 1933, as amended, the CharterMac
Shares to be issued in exchange for the outstanding ATEBT Shares. Such
CharterMac Shares will be offered to the ATEBT shareholders only pursuant to a
prospectus that will also serve as a consent statement for the shareholders of
ATEBT.
On November 3, 1999, ATEBT and CharterMac issued a joint press
release announcing the execution of the Merger Agreement. A copy of such
press release is filed as Exhibit 99.1 hereto and is incorporated herein by
reference.
This Current Report on Form 8-K and the Press Release contain forward
looking statements within the meaning of the Private Litigation Reform Act of
1995 and as such may involve known and unknown risks, uncertainties and other
factors which may cause the actual results, performance or achievements of
ATEBT to be materially different from any future results, performance or
achievements expressed or implied by such forward-looking statements. Such
forward looking statements speak only as of the date of this Current Report on
Form 8-K or the Press Release, as the case may be. ATEBT expressly disclaims
any obligation or undertaking to release publicly any updates or revisions to
any forward-looking statements contained herein or in the Press Release to
reflect any change in ATEBT's expectations with regard thereto or change in
events, conditions or circumstances on which any such statement is based.
<PAGE>
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
(a). Financial Statements
Not Applicable
(b). Pro Forma Financial Information
Not Applicable
(c). Exhibits
99.1 November 3, 1999 Press Release "Charter Municipal Mortgage
Acceptance Company to Acquire American Tax Exempt Bond Trust"
99.2 Agreement and Plan of Merger by and among Charter Municipal
Mortgage Acceptance Company, CM Holding Trust and American Tax Exempt
Bond Trust dated as of November 2, 1999
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Charter Municipal Mortgage Acceptance
Company
(Registrant)
BY: /s/ Stuart J. Boesky
Stuart J. Boesky
President
November 4, 1999
<PAGE>
EXHIBIT 99.1
AT CHARTERMAC & ATEBT AT THE FINANCIAL RELATIONS BOARD
Brenda Abuaf Paul G. Henning - General Info (212) 661-8030
Director of Shareholder Pamela King - Analyst Info (212) 661-8030
Services (800) 831-4826 Judith Sylk-Siegal - Media Info (212) 661-8030
CHARTER MUNICIPAL MORTGAGE ACCEPTANCE COMPANY
TO ACQUIRE AMERICAN TAX EXEMPT BOND TRUST
NEW YORK, NY - November 3, 1999 - Charter Municipal Mortgage Acceptance
Company (AMEX: CHC), and American Tax Exempt Bond Trust ("ATEBT"), today
jointly announced that they have entered into a merger agreement pursuant to
which ATEBT would merge with and into a wholly-owned subsidiary of CharterMac,
CM Holding Trust. Following the merger, CM Holding Trust would continue to be
a wholly-owned subsidiary of CharterMac.
Under the terms of the merger agreement, each share of beneficial ownership in
ATEBT outstanding on the effective date of the proposed merger will be
converted into the right to receive 1.43112 shares of beneficial interest in
CharterMac. Following the merger, current ATEBT shareholders will own
approximately 9.3% of the outstanding common shares of CharterMac.
Commenting on the merger announcement, Stuart J. Boesky, President and Chief
Operating Officer of CharterMac, stated, "The merger of ATEBT into CharterMac
represents a significant event to CharterMac as we continue to pursue our
long-term business strategy. The merger will increase the Company's asset
base, diversification and equity market capitalization, all in a cost
effective manner. Based upon our ability to leverage these assets, this
transaction will be accretive on a cash available for distribution and net
income basis."
Alan P. Hirmes, Senior Vice President of Related AMI Associates, Inc., ATEBT's
manager, commented, "This transaction will give ATEBT shareholders the
liquidity associated with an American Stock Exchange listed company. In
addition, since ATEBT's distribution level far exceeds its earnings, ATEBT's
distributions are not sustainable at their current level. By contrast,
CharterMac's distribution level is more likely to be sustainable since its
earnings have historically exceeded the Company's distributions and CharterMac
has a record of consistent earnings growth since its inception in 1997."
Consummation of the merger is subject to several conditions, including,
without limitation, approval by ATEBT shareholders. In addition, either
entity has the ability to opt out of the transaction if the 30-day average
trading price of CharterMac shares preceding the closing of the transaction is
outside of CharterMac's historical trading range of $11.13 and $14.50.
Subject to ATEBT shareholder approval, CharterMac and ATEBT expect that this
transaction will close during the first quarter of 2000.
CharterMac and ATEBT each originate and acquire tax-exempt bonds, the proceeds
of which are used by borrowers to finance and refinance the development and
ownership of multifamily housing nationwide. CharterMac's portfolio is
currently comprised of direct and indirect ownership interests in 67 tax-
exempt multifamily bonds in 16 states as well as in the District of Columbia
and ATEBT's portfolio is currently comprised of direct ownership interests in
4 tax-exempt multifamily bonds in 4 states.
For more information, please visit us at www.chartermac.com.
Certain items in this press release may constitute forward-looking statements
within the meaning of the Private Litigation Reform Act of 1995 and as such
may involve known and unknown risks, uncertainties and other factors which may
cause the actual results, performances or achievements of CharterMac or ATEBT
to be materially different from any future results, performances or
achievements expressed or implied by such forward-looking statements. Such
forward-looking statements speak only as of the date of this press release.
CharterMac and ATEBT expressly disclaim any obligation or undertaking to
release publicly any updates or revisions to any forward-looking statements
contained herein to reflect any change in CharterMac's or ATEBT's expectations
with regard thereto or change in events, conditions or circumstances on which
any such statement is based.
###
<PAGE>
Exhibit 99.2
AGREEMENT AND PLAN OF MERGER
dated as of November 2, 1999 by and among
CHARTER MUNICIPAL MORTGAGE ACCEPTANCE COMPANY
CM HOLDING TRUST and AMERICAN TAX EXEMPT BOND TRUST
TABLE OF CONTENT Page
ARTICLE I THE MERGER -1-
SECTION 1.1 The Merger -1-
SECTION 1.2 Closing -1-
SECTION 1.3 Effective Time -2-
SECTION 1.4 Effects of the Merger -2-
SECTION 1.5 Trust Agreement; Bylaws -2-
SECTION 1.6 Trustees; Officers -2-
ARTICLE II MANNER OF CONVERTING SHARES
OF THE CONSTITUENT BUSINESS TRUSTS -2-
SECTION 2.1 Effect on Capital Stock -2-
SECTION 2.2 Further Assurances -3-
SECTION 2.3 Exchange Procedures -3-
SECTION 2.4 Distributions with Respect to
Unexchanged ATEBT Shares -3-
SECTION 2.5 Rights of Former ATEBT Shareholders -4-
SECTION 2.6 Lost ATEBT Share Certificates -4-
SECTION 2.7 Parent's Option Not to Require Delivery
of ATEBT Shares by ATEBT Shareholders
in Order to Receive Parent Shares -4-
SECTION 2.8 Nonissuance of ATEBT Share Certificates -4-
ARTICLE III REPRESENTATIONS AND WARRANTIES -4-
SECTION 3.1 Representations and Warranties
of Parent and Sub -4-
SECTION 3.2 Representations and Warranties
of ATEBT -5-
ARTICLE IV ADDITIONAL AGREEMENTS -6-
SECTION 4.1 Waiver of Deferred Fees and Expenses -6-
SECTION 4.2 Reasonable Best Efforts -7-
SECTION 4.3 Public Announcements -7-
SECTION 4.4 Consents, Approvals and Filings -7-
SECTION 4.5 Exchange Listing -7-
SECTION 4.6 State Takeover Laws -7-
SECTION 4.7 No Solicitation by ATEBT -7-
ARTICLE V CONDITIONS PRECEDENT -8-
SECTION 5.1 Conditions to Each Party's
Obligation to Effect the Merger -8-
SECTION 5.2 Conditions to Obligations of ATEBT -9-
SECTION 5.3 Conditions to Obligations
of Parent and Sub -10-
SECTION 5.4 Frustration of Closing Conditions -11-
ARTICLE VI TERMINATION, AMENDMENT AND WAIVER -11-
SECTION 6.1 Termination -11-
SECTION 6.2 Effect of Termination -12-
SECTION 6.3 Amendment -12-
SECTION 6.4 Extension; Waiver -12-
ARTICLE VII GENERAL PROVISIONS -12-
SECTION 7.1 Nonsurvival of Representations
and Warranties -12-
SECTION 7.2 Fees and Expenses -13-
SECTION 7.3 Definitions -13-
SECTION 7.4 Notices -14-
SECTION 7.5 Interpretation -14-
SECTION 7.6 Counterparts -15-
SECTION 7.7 Entire Agreement; Third-Party
Beneficiaries -15-
SECTION 7.8 Governing Law -15-
SECTION 7.9 Assignment -15-
SECTION 7.10 Enforcement -15-
SECTION 7.11 Severability -15-
<PAGE>
AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of
November 2, 1999, by and among American Tax Exempt Bond Trust, a Delaware
business trust ("ATEBT"), Charter Municipal Mortgage Acceptance Company, a
Delaware business trust ("Parent"), and CM Holding Trust, a Delaware business
trust and a wholly-owned subsidiary of Parent ("Sub"). Certain capitalized
terms used in this Agreement are defined in Section 7.3.
W I T N E S S E T H:
WHEREAS, Related AMI Associates, Inc., ATEBT's manager ("Related
AMI") and the Board of Trustees of Parent and Sub have determined that it
would be advisable and in the best interests of the respective holders of
beneficial interest in ATEBT, Parent and Sub, for ATEBT to merge with and into
Sub with Sub as the surviving business trust pursuant and subject to the terms
and conditions set forth in this Agreement (the "Merger");
WHEREAS, Related AMI has agreed to (i) waive payment of certain
deferred and unpaid fees, expenses and reimbursements if the Merger is
consummated and (ii) pay or cause to be paid any fees and expenses related to
the Merger if the ATEBT Shareholders do not approve the Merger and certain
corresponding amendments to ATEBT's Trust Agreement.
WHEREAS, ATEBT, Related AMI, Parent and Sub desire to make certain
representations, warranties, covenants and agreements in connection with the
Merger and also to prescribe various conditions to the Merger.
NOW, THEREFORE, in consideration of the representations,
warranties, covenants and agreements contained in this Agreement, the parties
hereto hereby agree as follows:
ARTICLE I
THE MERGER
SECTION I.1 The Merger. Upon the
terms and subject to the conditions set forth in this Agreement, and in
accordance with Section 3815 of the Delaware Business Trust Act (the "Act"),
the Merger shall be effected and ATEBT shall be merged with and into Sub at
the Effective Time (as defined in Section 1.3), the separate existence of
ATEBT shall cease and Sub shall continue as the surviving business trust in
the Merger. The surviving business trust of the Merger shall be herein
referred to as the "Surviving Business Trust." The Merger shall be
consummated pursuant to the terms of this Agreement, which has been approved
and adopted by Related AMI, and the Board of Trustees of Parent and Sub and by
Parent as the Sub Shareholder. The name of the Surviving Business Trust shall
be CM Holding Trust.
SECTION I.2 Closing. Unless this
Agreement shall have been terminated and the transactions herein contemplated
shall have been abandoned pursuant to Section 6.1, and subject to the
satisfaction or waiver of the conditions set forth in Article V, the closing
of the Merger (the "Closing") will take place as soon as practicable following
the last to be satisfied or waived of the conditions set forth in Article V
(other than the delivery of certificates referred to in Sections 5.2(a) and
(b) and Sections 5.3(a) and (b)) in accordance with this Agreement (the
"Closing Date"), at the offices of Battle Fowler LLP, 75 East 55th Street, New
York, New York 10022, unless another date, time or place is agreed to in
writing by the parties hereto.
SECTION I.3 Effective Time. The
Merger shall become effective (the "Effective Time") upon the effective date
and time set forth in the Certificate of Merger filed with the Secretary of
State of the State of Delaware (the "Delaware Secretary of State"), which
Certificate of Merger shall be in substantially the form attached hereto as
Exhibit A.
SECTION I.4 Effects of the
Merger. The Merger shall have the effects set forth in this Agreement and in
the applicable provisions of the Act. Without limiting the generality of the
foregoing, and subject thereto, at the Effective Time, all the properties,
rights, privileges, powers and franchises of ATEBT and Sub shall vest in the
Surviving Business Trust, and all debts, liabilities and duties of ATEBT and
Sub shall become the debts, liabilities and duties of the Surviving Business
Trust.
SECTION I.5 Trust Agreement;
Bylaws. At the Effective Time, (a) Sub's Trust Agreement shall be the Trust
Agreement of the Surviving Business Trust, and (b) the bylaws of Sub as in
effect at the Effective Time shall, from and after the Effective Time, be the
bylaws of the Surviving Business Trust until thereafter changed or amended as
provided therein or by applicable law.
SECTION I.6 Trustees;
Officers. At the Effective Time, (a) the trustees of Sub shall be the
trustees of the Surviving Business Trust, each of whom will serve until the
earlier of their resignation or removal or until their respective successors
are duly elected and qualified, as the case may be, and (b) the officers of
Sub shall be the officers of the Surviving Business Trust, until the earlier
of their resignation or removal or until their respective successors are duly
elected and qualified, as the case may be.
ARTICLE II
MANNER OF CONVERTING SHARES
OF THE CONSTITUENT BUSINESS TRUSTS
SECTION II.1 Effect on
Capital Stock. As of the Effective Time, by virtue of the Merger and without
any action on the part of Parent, Sub, ATEBT, the ATEBT Shareholders, the Sub
Shareholder or the Parent Shareholders, the ATEBT Shares shall be converted as
follows:
(a) Conversion of ATEBT Shares. Each share of beneficial
interest in ATEBT (the "ATEBT Shares") issued and outstanding immediately
prior to the Effective Time shall, by virtue of the Merger and without any
action on the part of the holder thereof, be converted into the right to
receive 1.43112 common shares of beneficial interest (the "Parent Shares") of
Parent (the "Merger Consideration"). In addition, Related AMI's one percent
(1%) interest in ATEBT shall, by virtue of the Merger and without any action
on the part of Related AMI, be converted into the right to receive 21,156
Parent Shares. All of the shares of beneficial interest in Sub (the "Sub
Shares") shall remain issued and outstanding and shall be owned by Parent
immediately following the conversion.
(b) No Fractional Interests. No fractional units of Parent
Shares shall be issued in the Merger. An ATEBT Shareholder who would
otherwise have been entitled to a fractional unit of Parent Shares shall be
entitled to receive one Parent Share for each fractional share of 0.5 or
greater. No Parent Shares shall be issued for fractional shares of less than
0.5.
SECTION II.2 Further
Assurances. If, at any time after the Effective Time, the Surviving Business
Trust shall determine or be advised that any deeds, bills of sale,
assignments, assurances or any other actions or things are necessary or
desirable to vest, perfect or confirm of record or otherwise in the Surviving
Business Trust the right, title or interest in, to or under any of the rights,
properties or assets of ATEBT acquired or to be acquired by the Surviving
Business Trust as a result of, or in connection with, the Merger or otherwise
to carry out this Agreement, the Surviving Business Trust shall be authorized
to execute and deliver, in the name and on behalf of each of Parent, Sub and
ATEBT, all such deeds, bills of sale, assignments and assurances and to take
and do, in the name and on behalf of each of Parent, Sub and ATEBT or
otherwise, all such other actions and things as may be necessary or desirable
to vest, perfect or confirm any and all right, title and interest in, to and
under such rights, properties or assets in the Surviving Business Trust or
otherwise to carry out this Agreement.
SECTION II.3 Exchange
Procedures. Prior to the Effective Time, Parent shall appoint a commercial
bank or trust company satisfactory to ATEBT to act as exchange agent hereunder
(the "Exchange Agent"). At the Effective Time, Parent shall deposit with the
Exchange Agent, (i) certificates representing Parent Shares which immediately
prior to the Effective Time represent a number of Parent Shares required to be
issued pursuant to Section 2.1 in exchange for the issued and outstanding
ATEBT Shares. Promptly after the Effective Time, Parent shall cause the
Exchange Agent to mail to each holder of a certificate or certificates which
immediately prior to the Effective Time represented outstanding ATEBT Shares
(the "ATEBT Share Certificates") appropriate transmittal materials (which
shall specify that delivery shall be effected, and risk of loss and title to
the certificates theretofore representing ATEBT Shares shall pass, only upon
proper delivery of such certificates to the Exchange Agent) and instructions
for use in effecting the surrender of the ATEBT Share Certificates in exchange
for the certificates representing Parent Shares. The Exchange Agent may
establish reasonable and customary rules and procedures in connection with its
duties. After the Effective Time, each holder of ATEBT Share Certificates
issued and outstanding at the Effective Time shall surrender the ATEBT Share
Certificates to the Exchange Agent and shall promptly upon surrender thereof
receive in exchange therefor the consideration provided in Section 2.1(a).
Parent shall not be obligated to deliver the Merger Consideration to which any
holder of ATEBT Share Certificates is entitled as a result of the Merger until
such holder surrenders such holder's ATEBT Share Certificate for exchange as
provided in this Section 2.3. The ATEBT Share Certificate so surrendered shall
be duly endorsed as the Exchange Agent may reasonably require. Any other
provision of this Agreement notwithstanding, neither the Surviving Business
Trust nor the Exchange Agent shall be liable to a holder of ATEBT Shares for
any amounts paid or property delivered in good faith to a public official
pursuant to any applicable abandoned property law. Adoption of this Agreement
by the requisite ATEBT Shareholders shall constitute ratification of the
appointment of the Exchange Agent.
SECTION II.4 Distributions with Respect to Unexchanged ATEBT Shares.
Subject to the provisions of Section 2.7, no distributions with respect to
Parent Shares with a record date after the Effective Time shall be paid to any
holder of ATEBT Share Certificates until the surrender for exchange of the
ATEBT Share Certificates representing such ATEBT Shares in accordance with
Section 2.3. Following surrender for exchange of any such ATEBT Share
Certificate in accordance with Section 2.3, Parent shall pay to the holder of
such certificate, without interest, (i) at the time of such surrender, the
amount of distributions from Parent with a record date after the Effective
Time theretofore paid with respect to the number of whole Parent Shares into
which the ATEBT Shares represented by such ATEBT Share Certificate immediately
prior to the Effective Time were converted pursuant to Section 2.1, and
(ii) at the appropriate payment date, the amount of distributions from the
Parent with a record date after the Effective Time, but prior to such
surrender, and with a payment date subsequent to such surrender, payable with
respect to such whole Parent Shares
SECTION
II.5 Rights of Former ATEBT Shareholders. At the Effective Time, the share
transfer books of ATEBT shall be closed as to holders of ATEBT Shares
immediately prior to the Effective Time and no transfer of ATEBT Shares by any
such holder shall thereafter be made or recognized. Until surrendered for
exchange in accordance with the provisions of Section 2.3, each ATEBT Share
Certificate shall from and after the Effective Time represent for all purposes
only the right to receive the consideration provided in Sections 2.1 in
exchange therefor.
SECTION II.6
Lost ATEBT Share Certificates. If any ATEBT Share Certificates
representing ATEBT Shares shall have been lost, stolen or destroyed, upon the
making of an affidavit of that fact by the person claiming such certificate to
be lost, stolen or destroyed and, if required by Parent, the posting by such
person of a bond, in such reasonable amount as Parent may direct, as indemnity
against any claim that may be made against it with respect to such
certificate, the Exchange Agent will issue in exchange for such lost, stolen
or destroyed certificate the Merger Consideration, to which the holder thereof
is entitled pursuant to Section 2.1 and any distributions with respect to
Parent Shares to which the holder thereof is entitled pursuant to Section 2.4.
SECTION
II.7 Parent's Option Not to Require Delivery of ATEBT Shares by ATEBT
Shareholders in Order to Receive Parent Shares . Anything in this Agreement to
the contrary notwithstanding, Parent shall have the right, in its sole and
absolute discretion, but not the obligation (implied or otherwise), to waive
the requirements in Sections 2.3 and 2.4 relating to the delivery of ATEBT
Share Certificates and other items by the holders of ATEBT Shares to the
Exchange Agent, by written notice to the Exchange Agent of the same (the
"Notice"). In the event of such Notice, the Exchange Agent shall promptly
fulfill its obligations and duties under Section 2.3, as if all holders of
ATEBT Shares had fulfilled their obligations under Section 2.3, if any, and
fulfilled all obligations necessary for such holder to receive the Merger
Consideration, at the time of receipt of the Notice by the Exchange Agent.
SECTION II.8 Nonissuance of ATEBT Share Certificates . Anything in this
Agreement to the contrary notwithstanding, only those holders of ATEBT Shares
who requested and received ATEBT Share Certificates from ATEBT are required to
comply with Sections 2.3 and 2.4.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION III.1 Representations and Warranties of Parent and Sub. Parent and
Sub represent and warrant to ATEBT as follows:
(a) Organization, Standing and Power. Each of Parent and Sub is
a business trust duly created, validly existing and in good standing under the
laws of the State of Delaware and has the requisite trust power and authority
to carry on its business as now being conducted, except where the failure to
do so would not have, individually or in the aggregate, a Parent Material
Adverse Effect. For purposes of this Agreement, the term "Parent Material
Adverse Effect" means any Material Adverse Effect with respect to Parent or
its subsidiaries, taken as a whole, or any change of effect that adversely, or
is reasonably expected to adversely, affect the ability of Parent or Sub to
consummate the transactions contemplated by this Agreement in any material
respect or materially impair or delay Parent's or Sub's ability to perform its
obligations hereunder.
(b) Authority; Noncontravention. Parent and Sub have the
requisite trust power and authority to enter into this Agreement and to
consummate the transactions contemplated by this Agreement. The execution,
delivery and performance of this Agreement by Parent and Sub and the
consummation by Parent and Sub of the transactions contemplated hereby have
been duly authorized by all necessary trust action on the part of Parent and
Sub. This Agreement has been duly executed and delivered by Parent and Sub
and, assuming this Agreement constitutes the valid and binding agreement of
ATEBT, constitutes a valid and binding obligation of each of Parent and Sub,
enforceable against each of Parent and Sub in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies and to general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity). The
execution and delivery of this Agreement do not, and the consummation of the
transactions contemplated by this Agreement and compliance with the provisions
hereof will not, (i) conflict with any of the provisions of the trust
agreement or bylaws of Parent or Sub, (ii) subject to the governmental filings
and other matters referred to in the following sentence, conflict with, result
in a breach of or default (with or without notice or lapse of time, or both)
under, or give rise to a right of first refusal, termination, cancellation or
acceleration of any obligation (including to pay any sum of money) or loss of
a benefit under, or require the consent of any person under, any indenture or
other agreement, permit, concession, ground lease, franchise, license or
similar instrument or undertaking to which Parent or Sub is a party or by
which Parent or Sub or any of their assets is bound, result in the creation or
imposition of a material lien or other restriction or encumbrance on any
material asset of Parent or Sub, which, singly or in the aggregate, would have
a Parent Material Adverse Effect, or (iii) subject to the governmental filings
and other matters referred to in the following sentence, violate any domestic
or foreign law, rule or regulation or any order, writ, judgment, injunction,
decree, determination or award currently in effect except for such violations,
which, singly or in the aggregate, would only have an immaterial effect. No
consent, approval or authorization of, or declaration or filing with, or
notice to, any domestic or foreign governmental agency or regulatory authority
(a "Governmental Entity") or any third party which has not been received or
made, is required by or with respect to Parent or Sub in connection with the
execution and delivery of this Agreement by Parent or Sub or the consummation
by Parent or Sub of the transactions contemplated hereby, except for (i) the
filing of the certificate of merger with the Delaware Secretary of State,
(ii) such other consents, approvals, authorizations, filings or notices as are
set forth in Section 3.1(b) of the Parent Disclosure Schedule and
(ii) consents, approvals, authorizations, declarations, filings and notices
that, if not obtained or made, will not, individually or in the aggregate,
result in a Parent Material Adverse Effect.
SECTION III.2 Representations and Warranties of ATEBT. ATEBT represents and
warrants to Parent and Sub as follows:
(a) Organization, Standing and Power. ATEBT is a business
trust duly created, validly existing and in good standing under the laws of
the State of Delaware, and has all requisite trust power and authority to own,
lease and operate its properties and to carry on its business as now being
conducted, except where the failure to do so would not have, individually or
in the aggregate, an ATEBT Material Adverse Effect. For purposes of this
Agreement, the term "ATEBT Material Adverse Effect" means any Material Adverse
Effect with respect to ATEBT or its subsidiaries, taken as a whole, or any
change of effect that adversely, or is reasonably expected to adversely,
affect the ability of ATEBT to consummate the transactions contemplated by
this Agreement in any material respect or materially impair or delay ATEBT's
ability to perform its obligations hereunder.
(b) Authority; Noncontravention. ATEBT has the requisite
trust power and authority to enter into this Agreement and to consummate the
transactions contemplated by this Agreement. The execution, delivery and
performance by ATEBT of this Agreement and the consummation of the Merger by
ATEBT has been duly authorized by all necessary trust action on the part of
ATEBT. This Agreement has been duly executed and delivered by ATEBT and,
assuming this Agreement constitutes the valid and binding agreement of Parent
and Sub, constitutes a valid and binding obligation of ATEBT, enforceable
against such party in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws affecting creditors' rights and remedies and to general
principles of equity. Except as set forth in Section 3.2(b) of the ATEBT
Disclosure Schedule, the execution and delivery of this Agreement do not, and
the consummation of the transactions contemplated by this Agreement and
compliance with the provisions of this Agreement, will not (i) conflict with
any of the provisions of the trust agreement or bylaws of ATEBT, (ii) subject
to the governmental filings and other matters referred to in the following
sentence, conflict with, result in a breach of or default (with or without
notice or lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any obligation or loss of a
material benefit under, or require the consent of any person under, any
indenture, or other material agreement, permit, concession, franchise, license
or similar instrument or undertaking to which ATEBT is a party or by which
ATEBT or any of its assets is bound or affected, or (iii) subject to the
governmental filings and other matters referred to in the following sentence,
contravene any law, rule or regulation, or any order, writ, judgment,
injunction, decree, determination or award binding on or applicable to ATEBT
and currently in effect, which, in the case of clauses (ii) and (iii) above,
singly or in the aggregate, would have an ATEBT Material Adverse Effect. No
consent, approval or authorization of, or declaration or filing with, or
notice to, any Governmental Entity which has not been received or made is
required by or with respect to ATEBT in connection with the execution and
delivery of this Agreement by ATEBT or the consummation by ATEBT of any of the
transactions contemplated by this Agreement, except for (i) the filing of the
certificate of merger with the Delaware Secretary of State, (ii) such other
consents, approvals, authorizations, filings or notices as are set forth in
Section 3.2(b) of the ATEBT Disclosure Schedule and (iii) consents, approvals,
authorizations, declarations, filings and notices that, if not obtained or
made, will not, individually or in the aggregate, result in an ATEBT Material
Adverse Effect.
ARTICLE IV
ADDITIONAL AGREEMENTS
SECTION IV.1
Waiver of Deferred Fees and Expenses . Upon the terms and subject to the
conditions and other agreements set forth in this Agreement, at the Effective
Time, Related AMI agrees to waive all deferred and unpaid fees and expenses
owed to Related AMI by ATEBT through June 30, 1999.
SECTION IV.2 Reasonable
Best Efforts . Upon the terms and subject to the conditions and other
agreements set forth in this Agreement, each of the parties agrees to use its
reasonable best efforts to take, or cause to be taken, all actions, and to do,
or cause to be done, and to assist and cooperate with the other parties in
doing, all things necessary, proper or advisable to consummate and make
effective, in the most expeditious manner practicable, the Merger and the
other transactions contemplated by this Agreement, including the satisfaction
of the respective conditions set forth in Article V.
SECTION IV.3 Public
Announcements . Parent and Sub, on the one hand, and ATEBT, on the other
hand, will consult with each other before issuing, and provide each other the
opportunity to review and comment upon, any press release or other public
statements with respect to the transactions contemplated by this Agreement,
including the Merger, and shall not issue any such press release or make any
such public statement prior to such consultation, except as may be required by
applicable law, court process or by obligations pursuant to any listing
agreement with any national securities exchange or automated quotation system.
SECTION IV.4
Consents, Approvals and Filings . (a) ATEBT and Parent will make and cause
their respective subsidiaries to make all necessary filings, as soon as
practicable, in order to facilitate prompt consummation of the Merger and the
other transactions contemplated by this Agreement. In addition, ATEBT and
Parent will each use their reasonable best efforts, and will cooperate fully
with each other (i) to comply as promptly as practicable with all governmental
requirements applicable to the Merger and the other transactions contemplated
by this Agreement; and (ii) to obtain as promptly as practicable all necessary
permits, orders or other consents of Governmental Entities and consents of all
third parties necessary for the consummation of the Merger and the other
transactions contemplated by this Agreement. Each of ATEBT and Parent shall
use reasonable efforts to provide such information and communications to
Governmental Entities as such Governmental Entities may reasonably request.
(b) Each of the parties shall provide to the other party copies
of all applications in advance of filing or submission of such applications to
Governmental Entities in connection with this Agreement, and copies of all
correspondence with such Governmental Entities, and shall keep all the parties
timely apprised of the status of the foregoing.
SECTION IV.5 Exchange Listing .
Parent shall use its best efforts to list, prior to the Effective Time, on the
American Stock Exchange the Parent Shares to be issued to Related AMI and the
holders of ATEBT Shares pursuant to the Merger, and Parent shall give all
notices and make all filings with the American Stock Exchange required in
connection with the transactions contemplated herein.
SECTION IV.6 State Takeover
Laws . Parent, Sub and ATEBT shall take all necessary steps to exempt the
transactions contemplated by this Agreement from, or if necessary to challenge
the validity or applicability of, any state takeover law, if any.
SECTION IV.7 No
Solicitation by ATEBT . ATEBT shall not, directly or indirectly, through any
officer, director, employee, representative or agent of ATEBT, or any of its
subsidiaries, solicit or encourage (including by way of furnishing
information) the initiation of any inquiries or proposals regarding any
merger, amalgamation, take-over bid, reorganization, sale of substantial
assets, sale of ATEBT Shares (including, without limitation, by way of a
tender offer) or similar transaction involving ATEBT (any of the foregoing
inquiries or proposals being referred to herein as an "Acquisition Proposal");
provided, however, that nothing contained in this Agreement shall prevent the
Board of Directors of Related AMI, in its capacity as ATEBT's manager, after
consultation with its financial advisors, and after receiving advice from
outside counsel to the effect that the Board of Directors of Related AMI, in
its capacity as ATEBT's manager, is required to do so in order to discharge
properly its fiduciary duties, from considering, negotiating, approving and
recommending to the holders of ATEBT Shares an unsolicited bona fide
Acquisition Proposal which the Board of Directors of Related AMI, in its
capacity as ATEBT's manager, determines in good faith would result in a
transaction more favorable to the holders of ATEBT Shares than the transaction
contemplated by this Agreement (any such Acquisition Proposal being referred
to herein as a "Superior Proposal").
(i) ATEBT shall immediately notify Parent after receipt
of any Acquisition Proposal or any request for nonpublic information relating
to ATEBT in connection with an Acquisition Proposal or for access to the
properties, books or records of ATEBT by any person that informs the Board of
Directors of Related AMI that it is considering making, or has made, an
Acquisition Proposal. Such notice to Parent shall be made orally and in
writing and shall indicate in reasonable detail the identity of the offeror
and the terms and conditions of such proposal, inquiry or contract.
(ii) If the Board of Directors of Related AMI, in its
capacity as ATEBT's manager, receives a request for material nonpublic
information by a person who makes a bona fide Acquisition Proposal and the
Board of Directors of Related AMI, in its capacity as ATEBT's manager,
determines that such proposal is a Superior Proposal, then, and only in such
case, ATEBT may, subject to the execution of a confidentiality agreement,
provide such party with access to information regarding ATEBT.
(iii) Related AMI, in its capacity as ATEBT's manager,
shall immediately cease and cause to be terminated any existing discussions or
negotiations with any parties (other than with Parent and Sub) conducted
heretofore with respect to any of the foregoing.
(iv) Related AMI shall ensure that the officers,
directors, trustees and employees of ATEBT and any investment banker or other
advisor or representative retained by ATEBT are aware of the restrictions
described in this Section 4.7, and shall be responsible for any breach of this
Section by such bankers, advisors and representatives.
ARTICLE V
CONDITIONS PRECEDENT
SECTION V.1 Conditions to Each Party's Obligation to Effect
the Merger. The respective obligation of each party to effect the Merger is
subject to the satisfaction or written waiver on or prior to the Closing Date
of the following conditions:
(a) Shareholder Approval. The ATEBT Shareholders and Sub
Shareholder shall have duly adopted and approved this Agreement, and the
consummation of the transactions contemplated hereby, including the Merger, as
and to the extent required by law and by provisions of any governing
instruments of ATEBT and Sub.
(b) No Injunctions or Restraints. No statute, rule,
regulation, temporary restraining order, preliminary or permanent injunction
or other order issued by any court of competent jurisdiction or other legal
restraint or prohibition preventing the consummation of the Merger shall be in
effect; provided, however, that the party invoking this condition shall use
its best efforts to have any such temporary restraining order, injunction,
order, restraint or prohibition vacated.
(c) Governmental and Regulatory Consents. All material filings
required to be made prior to the Effective Time with, and all material
consents, approvals, permits and authorizations required to be obtained prior
to the Effective Time from, Governmental Entities, in connection with the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby by ATEBT, Parent and Sub will have been made
or obtained (as the case may be).
(d) Exchange Listing. The Parent Shares issuable pursuant to
the Merger shall have been approved for listing on the American Stock
Exchange.
(e) Registration Statement. The Registration Statement shall
be effective under the Securities Act of 1933, as amended, no stop orders
suspending the effectiveness of the Registration Statement shall have been
issued, no action, suit, proceeding or investigation by the Securities and
Exchange Commission to suspend the effectiveness thereof shall have been
initiated and be continuing, and all necessary approvals under state
securities Laws, or the Securities Act of 1933, as amended or the Securities
Exchange Act of 1934, as amended, relating to the issuance or trading of the
Parent Shares issuable pursuant to the Merger shall have been received.
(f) Power to Acquire First Mortgage Bonds. Parent shall have
complied with Section 10.2(f) of its Amended and Restated Trust Agreement as
currently in effect.
(g) Tax Opinion. ATEBT shall have received an opinion from
Battle Fowler LLP, in form reasonably satisfactory to ATEBT, as to the tax
consequences of the Merger to the ATEBT shareholders.
SECTION V.2
Conditions to Obligations of ATEBT . The obligations of ATEBT to effect the
Merger are further subject to the satisfaction or written waiver on or prior
to the Closing Date of the following conditions:
(a) Representations and Warranties. The representations and
warranties of Parent and Sub set forth in Section 3.1 that are qualified as to
materiality or Material Adverse Effect shall be true and correct and the
representations and warranties of Parent and Sub set forth in Section 3.1 that
are not so qualified shall be true and correct in all material respects, in
each case as of the date of this Agreement and as of the Closing Date as
though made on and as of the Closing Date, except to the extent such
representations and warranties speak as of an earlier date. In addition, all
such representations and warranties shall be true and correct as of the date
hereof and as though made on and as of the Closing Date, except to the extent
such representation or warranty speaks of an earlier date (without regard to
any qualifications for materiality or Material Adverse Effect) except to the
extent that any such failure to be true and correct (other than any such
failure the effect of which is immaterial) individually and in the aggregate
with all such other failures would not have a Material Adverse Effect, and
ATEBT shall have received a certificate signed on behalf of Parent by an
authorized officer of Parent or its manager to the effect set forth in this
paragraph.
(b) Performance of Obligations of Parent and Sub. Parent and
Sub shall have performed in all material respects all obligations required to
be performed by it under this Agreement at or prior to the Closing Date, and
ATEBT shall have received a certificate signed on behalf of Parent by an
authorized officer of Parent or its manager to such effect.
(c) No Material Adverse Effect. From and after the date of
this Agreement, there shall not have been any changes or events which,
individually or in the aggregate, have had or reasonably would be expected to
have a Material Adverse Effect.
(d) Consents. All consents of third parties set forth in
Section 3.2(b) of the Parent Disclosure Schedule shall have been obtained.
(e) Fairness Opinion. ATEBT shall have received from McDonald
Investments Inc., a letter to the effect that, in the opinion of such firm,
the consideration to be received by ATEBT shareholders in connection with the
Merger is fair, from a financial point of view, to such shareholders.
(f) Appraisal. ATEBT shall have received an appraisal from
Cushman & Wakefield and McDonald Investments Inc. as to the value of ATEBT's
assets.
SECTION
V.3 Conditions to Obligations of Parent and Sub . The obligation of Parent
and Sub to effect the Merger is further subject to the satisfaction or written
waiver on or prior to the Closing Date of the following conditions:
(a) Representations and Warranties. The representations and
warranties of ATEBT and Related AMI set forth in Sections 3.2 and 3.3,
respectively, that are qualified as to materiality or Material Adverse Effect
shall be true and correct and the representations and warranties of ATEBT and
Related AMI set forth in Sections 3.2 and 3.3, respectively, that are not so
qualified shall be true and correct in all material respects, in each case as
of the date of this Agreement and as of the Closing Date as though made on and
as of the Closing Date. In addition, all such representations and warranties
shall be true and correct as of the date hereof and as though made on and as
of the Closing Date, except to the extent such representation or warranty
speaks of an earlier date (without regard to any qualifications for
materiality or Material Adverse Effect) except to the extent that any such
failure to be true and correct (other than any such failure the effect of
which is immaterial) individually and in the aggregate with all such other
failures would not have a Material Adverse Effect, and Parent and Sub shall
have received a certificate signed on behalf of ATEBT by an authorized officer
of ATEBT or its manager to the effect set forth in this paragraph.
(b) Performance of Obligations of ATEBT and related AMI. ATEBT
and Related AMI shall have performed in all material respects all obligations
required to be performed by them under this Agreement at or prior to the
Closing Date, and Parent and Sub shall have received a certificate signed on
behalf of ATEBT by an authorized officer of ATEBT or its manager to such
effect.
(c) No Material Adverse Effect. From and after the date of
this Agreement, there shall not have been any changes or events which,
individually or in the aggregate, have had or reasonably would be expected to
have a Material Adverse Effect.
(d) Consents. All consents of third parties set forth in
Section 3.1(b) of the ATEBT Disclosure Schedule shall have been obtained.
(e) Fairness Opinion. Parent shall have received from Legg
Mason Wood Walker Incorporated, a letter to the effect that, in the opinion of
such firm, the consideration to be paid to the ATEBT shareholders in
connection with the Merger is fair, from a financial point of view, to Parent.
(f) Appraisal. Parent shall have received an appraisal from
Cushman & Wakefield and McDonald Investments Inc. as to the value of ATEBT's
assets.
(g) Amendment of ATEBT's Trust Agreement. Immediately prior to
the Effective Time, ATEBT shall have amended its Trust Agreement to delete
Sections 23.2, 23.3(a) through (d), and 15.4.9.
SECTION V.4
Frustration of Closing Conditions . None of Parent, Sub nor ATEBT may rely
on the failure of any condition set forth in Section 5.1, 5.2 or 5.3, as the
case may be, to be satisfied if such failure was caused by such party's
failure to use reasonable efforts to commence or complete the Merger and the
other transactions contemplated by this Agreement.
ARTICLE VI
TERMINATION, AMENDMENT AND WAIVER
SECTION VI.1 Termination. This
Agreement may be terminated and the transactions contemplated hereby may be
abandoned at any time prior to the Effective Time, in any one of the following
circumstances:
(i) By mutual written consent of Parent and ATEBT.
(ii) By Parent or ATEBT, if the ATEBT Shareholders fail to
adopt or approve this Agreement and the transactions contemplated hereby.
(iii) By Parent or ATEBT, if (x) any statute, rule or
regulation shall have been promulgated by any Governmental Entity prohibiting
or restricting the Merger or (y) any federal or state court of competent
jurisdiction or other Governmental Entity shall have issued an order, decree
or ruling, or taken any other action permanently restraining, enjoining or
otherwise prohibiting the Merger and such order, decree, ruling or other
action shall have become final and non-appealable; provided, that a party may
not terminate this Agreement pursuant to this clause (iii) if it has not
complied with its obligations under Section 4.2.
(iv) By Parent or ATEBT, if (A) the other party shall have
failed to comply in any material respect with any of the covenants and
agreements (or in any respect with regard to covenants and agreements
qualified by materiality) contained in this Agreement to be complied with or
performed by such party at or prior to such date of termination, and such
failure continues for thirty (30) business days after the actual receipt by
such party of a written notice from the other party setting forth in detail
the nature of such failure, or (B) a representation or warranty of the other
party contained in this Agreement shall be untrue in any material respect or a
representation or warranty qualified as to materiality or Material Adverse
Effect, as the case may be, shall be untrue in any respect.
(v) By ATEBT, if any of the conditions set forth in Section
5.2 shall have become incapable of being fulfilled and shall not have been
waived by ATEBT, or by Parent or Sub if any of the conditions set forth in
Section 5.3 shall have become incapable of being fulfilled and shall not have
been waived by Parent.
(vi) By Parent or ATEBT, if, during the 30 consecutive
trading days ending with and including the trading date that is one trading
day immediately preceding the Closing Date, the average Closing Price (as
defined below) of the Parent Shares is less than $11.18 or greater than
$14.50. For purposes hereof, "Closing Price" shall mean the last reported
sale price per Parent Share as reported on the American Stock Exchange on the
trading day in question.
(vii) By ATEBT, if the Board of Directors or Related AMI shall
have withdrawn or modified in accordance with Section 4.7 in any manner
adverse to Parent its approval or recommendation of the Merger or this
Agreement in connection with, or approved or recommended, a Superior Proposal.
SECTION VI.2 Effect of
Termination . In the event of the termination and abandonment of this
Agreement pursuant to Section 6.1, this Agreement (except for the provisions
of Sections 4.3, this Section 6.2 and Article VII) shall forthwith become void
and have no effect, without any Liability on the part of any party hereto or
its directors, officers or shareholders; provided, however, that nothing in
this Section 6.2 shall relieve any party to this Agreement of Liability for
any willful or intentional breach of this Agreement.
SECTION VI.3 Amendment . To the extent
permitted by law, this Agreement may be amended by a subsequent writing signed
by each of the parties upon the approval of the boards of directors of Related
AMI and the board of trustees of Parent, whether before or after ATEBT
Shareholder approval of this Agreement has been obtained; provided, that after
any such approval by the ATEBT Shareholders, there shall be made no amendment
that requires further approval by such shareholders without the further
approval of such shareholders.
SECTION VI.4 Extension;
Waiver . At any time prior to the Effective Time, the parties may (a) extend
the time for the performance of any of the obligations or other acts of the
other parties, (b) waive any inaccuracies in the representations and
warranties of the other parties contained in this Agreement or in any document
delivered pursuant to this Agreement or (c) subject to Section 6.3, waive
compliance with any of the agreements or conditions of the other parties
contained in this Agreement. Any agreement on the part of a party to any such
extension or waiver shall be valid only if set forth in an instrument in
writing signed on behalf of such party. The failure of any party to this
Agreement to assert any of its rights under this Agreement or otherwise shall
not constitute a waiver of such rights.
ARTICLE VII
GENERAL PROVISIONS
SECTION VII.1 Nonsurvival of Representations and Warranties . None of the
representations and warranties in this Agreement or in any instrument
delivered pursuant to this Agreement shall survive the Effective Time. This
Section 7.1 shall not limit any covenant or agreement of the parties which by
its terms contemplates performance after the Effective Time.
SECTION VII.2 Fees and
Expenses . If this Agreement is terminated for any reason other than the
failure of the ATEBT Shareholders to approve the Merger, Parent and ATEBT will
pay their own fees and expenses. If this Agreement is terminated because the
ATEBT Shareholders do not approve the Merger (including the related amendments
to ATEBT's trust agreement set forth in Section 4.3(g) of this Agreement),
Parent shall pay its own and Sub's fees and expenses and Related AMI hereby
agrees to pay, or to cause one of its affiliates to pay, all fees and expenses
incurred as part of the solicitation of consents and negotiation of the Merger
incurred by ATEBT. If the Merger is completed, Parent and ATEBT will pay
their own fees and expenses.
SECTION VII.3 Definitions . For purposes of this Agreement:
(a) "affiliate" of any person means another person that directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with, such first person;
(b) "ATEBT Disclosure Schedule" shall mean the disclosure schedule
delivered by ATEBT to Parent and Sub prior to the execution of this Agreement;
(c) "ATEBT Shareholders" means the holders of ATEBT Shares as of the
date set by board of directors of Related AMI in order to determine beneficial
owners of ATEBT entitled to consent to the Merger;
(d) "business day" means any day other than Saturday, Sunday or any
other day on which banks in the City of New York are required or permitted to
close;
(e) "Liability" means, as to any Person, all debts, liabilities and
obligations, direct, indirect, absolute or contingent of such Person, whether
accrued, vested or otherwise, whether known or unknown and whether or not
actually reflected, or required in accordance with GAAP to be reflected, in
such Person's balance sheet.
(f) "Material Adverse Effect" with respect to any person means an
event that has had or would reasonably be expected to have a material adverse
effect on the business, financial condition or results of operations of such
person and its subsidiaries taken as a whole;
(g) "Parent Disclosure Schedule" shall mean the disclosure schedule
delivered by Parent and Sub to ATEBT prior to the execution of this
Agreement;
(h) "Parent Shareholders" means the holders, from time to time, of
beneficial interests in Parent;
(i) "person" means an individual, corporation, partnership, limited
liability company, joint venture, association, trust, unincorporated
organization or other entity;
(j) "Sub Shareholder" means Parent, in its capacity as the sole
beneficial owner of Sub.
(k) "Registration Statement" shall mean the Registration Statement on
Form S-4, or other appropriate form, including any pre-effective or
post-effective amendments or supplements thereto, filed with the Securities
and Exchange Commission by Parent under the Securities Act of 1933, as
amended, with respect to the Parent Shares to be issued to the ATEBT
Shareholders and related AMI in connection with the transactions contemplated
by this Agreement.
SECTION VII.4 Notices . All notices,
requests, claims, demands and other communications under this Agreement shall
be in writing and shall be deemed given if delivered personally or sent by
overnight courier (providing proof of delivery) to the parties at the
following addresses (or at such other address for a party as shall be
specified by like notice):
(i) if to Parent or Sub, to
Charter Municipal Mortgage Acceptance Company
625 Madison Avenue
New York, New York 10022
Attention: Stuart J. Boesky
Telecopy: (212) 751-3550
with a copy (which shall not constitute notice)
to:
Battle Fowler LLP
75 East 55th Street
New York, New York 10022
Attention: Mark Schonberger, Esq.
Telecopy: (212) 856-7816
(ii) if to ATEBT, to
c/o Related AMI Associates, Inc.
625 Madison Avenue
New York, New York 10022
Attention: Stuart J. Boesky
Telecopy: (212) 751-3550
with a copy (which shall not constitute notice)
to:
Battle Fowler LLP
75 East 55th Street
New York, New York 10022
Attention: Mark Schonberger, Esq.
Telecopy: (212) 856-7816
SECTION VII.5 Interpretation .
When a reference is made in this Agreement to a Section or Schedule, such
reference shall be to a Section of, or a Schedule to, this Agreement unless
otherwise indicated. The table of contents and headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Whenever the words "include",
"includes" or "including" are used in this Agreement, they shall be deemed to
be followed by the words "without limitation".
SECTION VII.6 Counterparts . This
Agreement may be executed in two or more counterparts, all of which shall be
considered one and the same agreement and shall become effective when one or
more counterparts have been signed by each of the parties and delivered to the
other parties.
SECTION VII.7 Entire Agreement; Third-Party Beneficiaries . This Agreement
constitutes the entire agreement, and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter of this Agreement. This Agreement is not intended to confer
upon any person other than the parties hereto and the third party
beneficiaries referred to in the following sentence, any rights or remedies.
SECTION VII.8 GOVERNING LAW .
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF DELAWARE, REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE
GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
SECTION VII.9 Assignment . Neither
this Agreement nor any of the rights, interests or obligations under this
Agreement shall be assigned, in whole or in part, by operation of law or
otherwise by any of the parties without the prior written consent of the other
parties, and any such assignment that is not consented to shall be null and
void. Subject to the preceding sentence, this Agreement will be binding upon,
inure to the benefit of, and be enforceable by, the parties and their
respective successors and assigns.
SECTION VII.10 Enforcement . The
parties agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to an injunction or injunctions to prevent breaches
of this Agreement and to enforce specifically the terms and provisions of this
Agreement in any court of the United States located in the State of Delaware,
this being in addition to any other remedy to which they are entitled at law
or in equity.
SECTION VII.11 Severability .
Whenever possible, each provision or portion of any provision of this
Agreement will be interpreted in such manner as to be effective and valid
under applicable law but if any provision or portion of any provision of this
Agreement is held to be invalid, illegal or unenforceable in any respect under
any applicable law or rule in any jurisdiction, so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to any party, such invalidity, illegality or
unenforceability will not affect any other provision or portion of any
provision in such jurisdiction, and this Agreement will be reformed, construed
and enforced in such jurisdiction as if such invalid, illegal or unenforceable
provision or portion of any provision had never been contained herein.
[signature page follows]
<PAGE>
IN WITNESS WHEREOF, Parent, Sub, Related AMI and ATEBT have caused this
Agreement to be signed by their respective officers thereunto duly authorized,
all as of the date first written above.
CHARTER MUNICIPAL MORTGAGE ACCEPTANCE
COMPANY
By: /s/ Alan P. Hirmes
Name: Alan P. Hirmes
Title: Trustee
AMERICAN TAX EXEMPT BOND TRUST
By: Related AMI Associates, Inc., it
Manager
By: /s/ Stuart J. Boesky
Name: Stuart J. Boesky
Title: Senior Vice President
CM HOLDING TRUST
By: /s/ Alan P. Hirmes
Name: Alan P. Hirmes
Title: Trustee
ACCEPTED AND AGREED
only with respect to Sections 4.1 and 7.2
RELATED AMI ASSOCIATES, INC.
By:/s/ Stuart J. Boesky
Name: Stuart J. Boesky
Title: Senior Vice President
<PAGE>
Exhibit A
CERTIFICATE OF MERGER
OF
AMERICAN TAX EXEMPT BOND TRUST
INTO
CM HOLDING TRUST
Under Section 3815 of the Delaware Business Trust Act)
The undersigned business trust
DOES HEREBY CERTIFY:
FIRST: That the names and jurisdictions of formation of each of
the constituent business trusts of the merger are as follows:
NAME JURISDICTION OF FORMATION
American Tax Exempt Bond Trust Delaware
CM Holding Trust Delaware
SECOND: That an Agreement and Plan of Merger between the parties
to the merger has been approved and executed by each of the constituent
business trusts in accordance with the requirements of Section 3815 of the
Delaware Business Trust Act.
THIRD: The name of surviving Delaware business trust is CM
Holding Trust (the "Surviving Business Trust").
FOURTH: That the executed Agreement and Plan of Merger is on file
at the principal place of business of the Surviving Business Trust, located at
625 Madison Avenue, New York, New York 10022.
FIFTH: That a copy of the Agreement and Plan of Merger will be
furnished by the Surviving Business Trust, on request and without cost, to any
beneficial owner of any constituent business trust.
SIXTH: That this Certificate of Merger shall be effective at
[___] a.m., New York time, on [________], 2000.
In witness whereof, the Surviving Business Trust has caused this
Certificate of
Merger to be signed by its Managing Trustee on the ___ day of ______, 2000.
CM HOLDING TRUST
By:
Name: Stuart J. Boesky
Title: Managing Trustee
