<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 2)*
BANYAN MORTGAGE INVESTMENT FUND
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, par value $0.01 per share
- --------------------------------------------------------------------------------
(Title of Class of Securities)
06682P106
------------------------------------------------------------
(CUSIP Number)
Kenneth L. Uptain, President
RGI Holdings, Inc.
U.S. Bank Centre
1420 5th Avenue, 42nd Floor
Seattle, Washington 98101-2333
(206) 464-0200
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
December 3, 1996
-------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box / /.
Check the following box if a fee is being paid with the statement / /. (A fee
is not required only if the reporting person: (1) has a previous statement on
file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
NOTE: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
* The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that Section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Exhibit Index is on Page 23
<PAGE>
CUSIP No. 06682P106 13D Page 2 of Pages
--------- --- ---
- -------------------------------------------------------------------------------
(1) Names of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
Kjell I. Rokke
- -------------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member (a) / /
of a Group* (b) / /
- -------------------------------------------------------------------------------
(3) SEC Use Only
- -------------------------------------------------------------------------------
(4) Source of Funds*
AF
- -------------------------------------------------------------------------------
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e) / /
- -------------------------------------------------------------------------------
(6) Citizenship or Place of Organization
Norway
- -------------------------------------------------------------------------------
Number of Shares (7) Sole Voting
Beneficially Owned Power 0
by Each Reporting --------------------------------------------------
Person With (8) Shared Voting
Power 14,393,266
--------------------------------------------------
(9) Sole Dispositive
Power 0
--------------------------------------------------
(10) Shared Dispositive
Power 14,393,266
- -------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
14,393,266
- -------------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares*
/ /
- -------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
30.4%
- -------------------------------------------------------------------------------
(14) Type of Reporting Person*
IN
- -------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
2
<PAGE>
CUSIP No. 06682P706 13D Page 3 of Pages
--------- --- ---
- -------------------------------------------------------------------------------
(1) Names of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
RGI (Antilles) N.V.
- -------------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member (a) / /
of a Group* (b) / /
- -------------------------------------------------------------------------------
(3) SEC Use Only
- -------------------------------------------------------------------------------
(4) Source of Funds*
AF
- -------------------------------------------------------------------------------
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e) / /
- -------------------------------------------------------------------------------
(6) Citizenship or Place of Organization
Netherlands Antilles
- -------------------------------------------------------------------------------
Number of Shares (7) Sole Voting
Beneficially Owned Power 0
by Each Reporting --------------------------------------------------
Person With (8) Shared Voting
Power 14,393,266
--------------------------------------------------
(9) Sole Dispositive
Power 0
--------------------------------------------------
(10) Shared Dispositive
Power 14,393,266
- -------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
14,393,266
- -------------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares*
/ /
- -------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
30.4%
- -------------------------------------------------------------------------------
(14) Type of Reporting Person*
HC, CO
- -------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
3
<PAGE>
CUSIP No. 06682P106 13D Page 4 of Pages
--------- --- ---
- -------------------------------------------------------------------------------
(1) Names of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
RGI (Europe) B.V.
- -------------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member (a) / /
of a Group* (b) / /
- -------------------------------------------------------------------------------
(3) SEC Use Only
- -------------------------------------------------------------------------------
(4) Source of Funds*
AF
- -------------------------------------------------------------------------------
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e) / /
- -------------------------------------------------------------------------------
(6) Citizenship or Place of Organization
The Netherlands
- -------------------------------------------------------------------------------
Number of Shares (7) Sole Voting
Beneficially Owned Power 0
by Each Reporting --------------------------------------------------
Person With (8) Shared Voting
Power 14,393,266
--------------------------------------------------
(9) Sole Dispositive
Power 0
--------------------------------------------------
(10) Shared Dispositive
Power 14,393,266
- -------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
14,393,266
- -------------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares*
/ /
- -------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
30.4%
- -------------------------------------------------------------------------------
(14) Type of Reporting Person*
HC,CO
- -------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
4
<PAGE>
CUSIP No. 06682P106 13D Page 5 of Pages
--------- --- ---
- -------------------------------------------------------------------------------
(1) Names of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
RGI (Denmark) ApS
- -------------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member (a) / /
of a Group* (b) / /
- -------------------------------------------------------------------------------
(3) SEC Use Only
- -------------------------------------------------------------------------------
(4) Source of Funds*
AF
- -------------------------------------------------------------------------------
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
- -------------------------------------------------------------------------------
(6) Citizenship or Place of Organization
Denmark
- -------------------------------------------------------------------------------
Number of Shares (7) Sole Voting
Beneficially Owned Power 0
by Each Reporting --------------------------------------------------
Person With (8) Shared Voting
Power 14,393,266
--------------------------------------------------
(9) Sole Dispositive
Power 0
--------------------------------------------------
(10) Shared Dispositive
Power 14,393,266
- -------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
14,393,266
- -------------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares*
/ /
- -------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
30.4%
- -------------------------------------------------------------------------------
(14) Type of Reporting Person*
HC,CO
- -------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
5
<PAGE>
CUSIP No. 06682P106 13D Page 6 of Pages
--------- --- ---
- -------------------------------------------------------------------------------
(1) Names of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
Resource Group International Inc.
- -------------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member (a) / /
of a Group* (b) / /
- -------------------------------------------------------------------------------
(3) SEC Use Only
- -------------------------------------------------------------------------------
(4) Source of Funds*
WC
- -------------------------------------------------------------------------------
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
- -------------------------------------------------------------------------------
(6) Citizenship or Place of Organization
Washington
- -------------------------------------------------------------------------------
Number of Shares (7) Sole Voting
Beneficially Owned Power 160,000
by Each Reporting --------------------------------------------------
Person With (8) Shared Voting
Power 14,233,266
--------------------------------------------------
(9) Sole Dispositive
Power 160,000
--------------------------------------------------
(10) Shared Dispositive
Power 14,233,266
- -------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
14,393,266
- -------------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares*
/ /
- -------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
30.4%
- -------------------------------------------------------------------------------
(14) Type of Reporting Person*
HC,CO
- -------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
6
<PAGE>
CUSIP No. 06682P106 13D Page 7 of Pages
--------- --- ---
- -------------------------------------------------------------------------------
(1) Names of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
RGI Real Estate, Inc.
- -------------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member (a) / /
of a Group* (b) / /
- -------------------------------------------------------------------------------
(3) SEC Use Only
- -------------------------------------------------------------------------------
(4) Source of Funds*
AF
- -------------------------------------------------------------------------------
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e) / /
- -------------------------------------------------------------------------------
(6) Citizenship or Place of Organization
Washington
- -------------------------------------------------------------------------------
Number of Shares (7) Sole Voting
Beneficially Owned Power 0
by Each Reporting --------------------------------------------------
Person With (8) Shared Voting
Power 14,233,266
--------------------------------------------------
(9) Sole Dispositive
Power 0
--------------------------------------------------
(10) Shared Dispositive
Power 14,233,266
- -------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
14,233,266
- -------------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares*
/x/
- -------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
30.1%
- -------------------------------------------------------------------------------
(14) Type of Reporting Person*
HC,CO
- -------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
7
<PAGE>
CUSIP No. 06682P106 13D Page 8 of Pages
--------- --- ---
- -------------------------------------------------------------------------------
(1) Names of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
RGI Holdings, Inc.
- -------------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member (a) / /
of a Group* (b) / /
- -------------------------------------------------------------------------------
(3) SEC Use Only
- -------------------------------------------------------------------------------
(4) Source of Funds*
AF
- -------------------------------------------------------------------------------
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e) / /
- -------------------------------------------------------------------------------
(6) Citizenship or Place of Organization
Washington
- -------------------------------------------------------------------------------
Number of Shares (7) Sole Voting
Beneficially Owned Power 14,233,266
by Each Reporting --------------------------------------------------
Person With (8) Shared Voting
Power 0
--------------------------------------------------
(9) Sole Dispositive
Power 14,233,266
--------------------------------------------------
(10) Shared Dispositive
Power 0
- -------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
14,233,266
- -------------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares*
/x/
- -------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
30.1
- -------------------------------------------------------------------------------
(14) Type of Reporting Person*
CO
- -------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
8
<PAGE>
ITEM 1. SECURITY AND ISSUER.
This Statement relates to the Common Stock, par value $0.01 per share ("Common
Stock"), of Banyan Mortgage Investment Fund, a Delaware corporation ("Banyan").
The address of the principal executive offices of Banyan is 150 South Wacker
Drive, Suite 2900, Chicago, Illinois 60606.
ITEM 2. IDENTITY AND BACKGROUND.
This Statement is filed on behalf of:
(1) Kjell I. Rokke ("Mr. Rokke"), a citizen of Norway and the owner
of approximately 70.5% of the outstanding capital stock of RGI
(Antilles) N.V., a Netherlands Antilles limited liability company
("RGI Antilles");
(2) RGI Antilles;
(3) RGI (Europe) B.V., a Netherlands corporation and wholly-owned
subsidiary of RGI Antilles ("RGI Europe");
(4) RGI (Denmark) ApS, a Danish limited liability company and wholly-
owned subsidiary of RGI Europe ("RGI Denmark");
(5) Resource Group International Inc., a Washington corporation and
wholly-owned subsidiary of RGI Denmark ("RGI International");
(6) RGI Real Estate, Inc., a Washington corporation and wholly-owned
subsidiary of RGI International ("RGI Real Estate"); and
(7) RGI Holdings, Inc., a Washington corporation and 80.45%-owned
subsidiary of RGI Real Estate ("RGI Holdings").
RGI Antilles, RGI Europe, RGI Denmark, RGI International, RGI Real Estate
and RGI Holdings are hereinafter collectively referred to as the "RGI Entities".
RGI Antilles is the ultimate parent holding company of numerous entities engaged
in various businesses, including (1) seafood operations, (2) shipyard and
material handling businesses, (3) the distribution of sporting goods, office
supplies and other products, (4) the ownership and development of real estate
and (5) finance operations. RGI Europe, RGI Denmark, RGI International and RGI
Real Estate are intermediate holding companies for various entities engaged in
such businesses. RGI Holdings was organized to serve as a holding company for
investments in entities engaged in the ownership and development of real estate
and related assets.
Mr. Rokke's business address is 83 Shirley Street, Nassau, Bahamas.
Page 9
<PAGE>
The address of the principal business and principal offices of RGI Antilles
is 6 John B. Gorsiraweg, Curacao, Netherlands Antilles.
The address of the principal business and principal offices of RGI Europe
is Kneuterdijk 15, 2524 EM, The Haag, The Netherlands.
The address of the principal business and principal offices of RGI Denmark
is Runsted Strandvej 62B, DK-2960 Rungsten Kyst, Denmark.
The address of the principal business and principal offices of RGI
International, RGI Real Estate and RGI Holdings is 1420 Fifth Avenue, 42nd
Floor, Seattle, Washington 98101-2333.
On October 1, 1996 RGI Antilles entered into a merger agreement with Aker
ASA, a norwegian corporation. The merger was approved by the shareholders of
both RGI Antilles and Aker ASA on November 21, 1996, but is subject to certain
Norwegian governmental approvals. If the merger occurs, the RGI Antilles
shareholders will own approximately 57% of the voting stock and 49.2% of the
capital stock of the surviving corporation. Kjell I. Rokke will own
approximately 38% of the voting stock and 33.3% of the capital stock of the
surviving corporation.
(a) - (c) & (f)
The following sets forth with respect to each Managing Director of RGI ANTILLES
his or its name, residence or principal business address, and citizenship or
place of organization:
Kjell I. Rokke
83 Shirley Street
Nassau, Bahamas
(Norwegian citizen)
Bjorn R. Gjelsten
Beddingen 20
0250 Oslo, Norway
(Norwegian citizen)
Kenneth L. Uptain
1420 5th Avenue, 42nd Floor
Seattle, WA 98101-2333
(U.S. citizen)
David A. Herrick
1420 Fifth Avenue, 42nd Floor
Seattle, WA 98101-2333
(U.S. citizen)
Page 10
<PAGE>
Bernt O. Bodal
2025 First Avenue, Suite 900
Seattle, WA 98121
(U.S. citizen)
MeesPierson Trust (Curacao) N.V.
14 John B. Gorsiraweg
P.O. Box 3889
Curacao, Netherlands Antilles
(Netherlands Antilles limited liability company)
The following sets forth with respect to each Managing Director of RGI EUROPE
his or its name, residence or principal business address, and citizenship or
place of organization:
Kjell I. Rokke
83 Shirley Street
Nassau, Bahamas
(Norwegian citizen)
Bjorn R. Gjelsten
Beddingen 20
0250 Oslo, Norway
(Norwegian citizen)
MeesPierson Trust B.V.
Kneuterdijk 15
P.O. Box 188
2501 AR The Hague
The Netherlands
(Netherlands corporation)
NOTE: RGI ANTILLES AND RGI EUROPE HAVE ENTERED INTO MANAGEMENT AGREEMENTS WITH
MEESPIERSON TRUST (CURACAO) N.V. AND MEESPIERSON TRUST B.V., RESPECTIVELY, FOR
THE PURPOSE OF LOCAL LEGAL REQUIREMENTS AND PRACTICAL NEEDS. UNDER NETHERLANDS
ANTILLES LAW, A COMPANY CAN ONLY CARRY ON A BUSINESS IN THE NETHERLANDS ANTILLES
IF SUCH A COMPANY HAS A RESIDENCE PERMIT. FOR AN OFFSHORE COMPANY, SUCH AS RGI
ANTILLES, IT IS REQUIRED THAT THE COMPANY HAVE AT LEAST ONE MANAGING DIRECTOR
THAT IS A RESIDENT OF THE NETHERLANDS ANTILLES. THROUGH THE APPOINTMENT OF
MEESPIERSON TRUST (CURACAO) N.V., THIS REQUIREMENT HAS BEEN SATISFIED.
MEESPIERSON TRUST (CURACAO) N.V., AS MANAGING DIRECTOR, PROVIDES A REGISTER
OFFICE FOR RGI ANTILLES, AS WELL AS ADMINISTRATIVE AND CLERICAL SERVICES. THE
LEGAL REQUIREMENTS IN THE NETHERLANDS ARE SUBSTANTIALLY SIMILAR. CONSEQUENTLY,
MEESPIERSON TRUST B.V. SERVES AS A MANAGING DIRECTOR OF RGI EUROPE TO COMPLY
WITH APPLICABLE LEGAL REQUIREMENTS AND ALSO PROVIDES SIMILAR ADMINISTRATIVE AND
CLERICAL SERVICES.
Page 11
<PAGE>
The following sets forth with respect to each director of RGI DENMARK his name,
residence or principal business address, and citizenship:
Kjell I. Rokke
83 Shirley Street
Nassau, Bahamas
(Norwegian citizen)
Bjorn R. Gjelsten
Beddingen 20
0250 Oslo, Norway
(Norwegian citizen)
Fleming Heegaard
Runsted Strandvej 62B
DK-2960 Rungsten Kyst
Denmark
(Danish citizen and an attorney in private practice)
The following sets forth with respect to each executive officer and director of
RGI INTERNATIONAL his name, position(s) with such company, residence or
principal business address, and citizenship:
Kjell I. Rokke
President and Director - RGI International
83 Shirley Street
Nassau, Bahamas
(Norwegian citizen)
Bjorn R. Gjelsten
Vice President and Director - RGI International
Beddingen 20
0250 Oslo, Norway
(Norwegian citizen)
David A. Herrick
Treasurer and Director - RGI International
1420 Fifth Avenue, 42nd Floor
Seattle, WA 98101-2333
(U.S. citizen)
Page 12
<PAGE>
Bernt O. Bodal
Director - RGI International
2025 First Avenue, Suite 900
Seattle, WA 98121
(U.S. citizen)
Kenneth L. Uptain
Director - RGI International
1420 5th Avenue, 42nd Floor
Seattle, WA 98101-2333
(U.S. citizen)
Olav Revhaug
Secretary - RGI International
1420 Fifth Avenue, 42nd Floor
Seattle, WA 98101-2333
(Norwegian citizen)
The following sets forth with respect to each executive officer and director of
RGI REAL ESTATE his name, position(s) with such company, residence or principal
business address, and citizenship:
Kenneth L. Uptain
President and Director - RGI Real Estate
1420 5th Avenue, 42nd Floor
Seattle, WA 98101-2333
(U.S. citizen)
Kjell I. Rokke
Vice President and Director - RGI Real Estate
83 Shirley Street
Nassau, Bahamas
(Norwegian citizen)
David A. Herrick
Secretary and Treasurer - RGI Real Estate
1420 Fifth Avenue, 42nd Floor
Seattle, WA 98101-2333
(U.S. citizen)
Page 13
<PAGE>
Jan Petter Storetvedt
Director - RGI Real Estate
Box 4538 Torshov
0404 Oslo, Norway
(Norwegian citizen and business executive)
The following sets forth with respect to each executive officer and director of
RGI HOLDINGS his name, position(s) with such company, present principal
occupation (if other than with the RGI Entities), principal business address,
and citizenship:
Kenneth L. Uptain
President, Treasurer and Director - RGI Holdings
1420 5th Avenue, 42nd Floor
Seattle, WA 98101-2333
(U.S. citizen)
David A. Herrick
Vice President and Secretary - RGI Holdings
1420 Fifth Avenue, 42nd Floor
Seattle, WA 98101-2333
(U.S. citizen)
Kjell I. Rokke
Director - RGI Holdings
83 Shirley Street
Nassau, Bahamas
(Norwegian citizen)
Jan Petter Storetvedt
Director - RGI Holdings
Box 4538 Torshov
0404 Oslo, Norway
(Norwegian citizen and business executive)
(d) - (e)
During the last five years, none of the RGI Entities and, to the best of their
knowledge, none of their respective executive officers, directors and/or
managing directors (i) has been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors), or (ii) has been a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction and as
a result of such proceedings was or is subject to a judgment, decree or final
order enjoining future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any violation with
respect to such laws.
Page 14
<PAGE>
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
On each of the dates set forth below, RGI International acquired 160,000 shares
of Banyan Common Stock for $0.46875 per share or an aggregate purchase price of
$75,000. The source of funding for these acquisitions was the working capital
of RGI International. The dates and number of shares purchased were as follows:
1/19/96 2,600
1/22/96 3,100
1/23/96 74,300
1/22/96 18,800
1/25/96 10,800
1/26/96 2,600
1/29/96 18,500
1/30/96 3,200
1/31/96 26,100
The source of funding for RGI Holdings' acquisition of 7,466,666 shares of
Banyan Common Stock on May 21, 1996 for $0.46875 per share or an aggregate of
$3,500,000 was an intercompany loan made to it by RGI International. Interest
at a rate of LIBOR plus 1% accrues and is payable quarterly, and all principal
together with any accrued but unpaid interest is due and payable at the term of
the loan. Such loan is unsecured. A copy of the promissory note is attached to
this Schedule as Exhibit 2, and the above description is qualified in its
entirety by reference to such Exhibit 2, which is incorporated herein by
reference in its entirety.
On December 3, 1996 RGI Holdings entered into Common Stock Purchase and
Sale Agreements pursuant to which it agreed to purchase 1,250,000, 181,200,
and 375,000 shares of Banyan Common Stock from third parties for $ 0.50 per
share or an aggregate purchase price of $903,100. On December 5, 1996 RGI
Holdings entered into Common Stock Purchase and Sale Agreements pursuant to
which it agreed to purchase 100,000, 724,500, and 574,000 shares of Banyan
Common Stock from third parties for $0.56 per share or an aggregate purchase
price of $783,160. Pursuant to such agreements, the sellers granted RGI
Holdings an irrevocable proxy to vote at the annual meeting on, among other
things, the Merger, and have agreed that until the first to occur of (i) the
consummation of the Merger or (ii) the third business day following the
failure of the shareholders of Banyan to approve the Merger, they will not
acquire or enter into any contract to acquire, or to vote, any shares of
Common Stock of Banyan. In addition, in the event that an "acquisition
transaction" (as defined in the Common Stock Purchase and Sale Agreements to
include an acquisition of 50% of the outstanding securities of Banyan or the
consummation of a transaction in which Banyan is not the surviving corporation
or its securities are converted into cash or other securities, or any sale of
all or substantially all the assets of Banyan) is consummated within four
months, then RGI Holdings will pay to the seller any difference between the per
share price paid by RGI Holdings and the fair market value of the consideration
that would have been received by the sellers upon the consummation of the
acquisition transaction. The Company anticipates that the purchases of the
shares will close on or before December 9, 1996. The source of funding for
these purchases will be an intercompany loan from RGI International. Interest
at a rate of LIBOR plus 1% will accrue and be payable quarterly, and all
principal together with any accrued but unpaid interest will be due and payable
at the term of the loan. Copies of the Common Stock Purchase and Sale Agreements
are attached to this Schedule as Exhibits 6, 7, 8, 9, 10 and 11 and the above
description is qualified in its entirety by reference to such Exhibits, which
are incorporated herein by reference in their entirety.
Page 15
<PAGE>
On December 3, 1996 RGI Holdings entered into a Common Stock Purchase
and Sale Agreement pursuant to which it agreed to purchase 3,561,900 shares
of Common Stock from third parties for $ 0.60 per share or an aggregate
purchase price of $2,137,140. The sellers granted RGI Holdings an
irrevocable proxy to vote at the annual meeting on, among other things, the
Merger, and have agreed that until the first to occur of (i) the consummation
of the Merger, (ii) the third business day following the failure of the
shareholders of Banyan to approve the Merger, or (iii) termination of the
Merger Agreement, they will not acquire or enter into any contract to acquire,
or to vote, any shares of Common Stock of Banyan. The Company anticipates that
the purchase of the shares will close on or about December 9, 1996. The source
of funding for this acquisition will be an intercompany loan from RGI
International. Interest at a rate of LIBOR plus 1% will accrue and be payable
quarterly, and all principal together with any accrued but unpaid interest will
be due and payable at the term of the loan. Copies of the Common Stock Purchase
and Sale Agreement is attached to this Schedule as Exhibit 12, and the above
description is qualified in its entirety by reference to such Exhibit, which is
incorporated herein by reference in its entirety.
ITEM 4. PURPOSE OF TRANSACTION.
Pursuant to an Agreement and Plan of Merger dated as of April 12, 1996, as
amended and restated as of May 20, 1996, and further amended as of September 17,
1996, by and among RGI Holdings, RGI U.S. Holdings, Inc., a wholly owned
subsidiary of Holdings ("RGI/US"), and Banyan (the "Merger Agreement"): (i) on
May 21, 1996 (the "Initial Closing") RGI Holdings purchased from Banyan in a
private placement 7,466,666 shares of Banyan Common Stock at a purchase price of
$.46875 per share, as a result of which RGI Holdings beneficially owns
approximately 15.8% of the total outstanding capital stock of Banyan; (ii) RGI
Holdings purchased from several institutional lenders for whom Morgens,
Waterfall, Vintiadis & Co., Inc. acted as agent, a loan previously made to
Banyan in the original principal amount of $20,500,000, the terms and conditions
of which were modified by agreement of the parties to cure or waive certain
defaults; and (iii) RGI Holdings purchased from Societe Generale, Southwest
Agency, a loan previously made to Banyan in the original principal amount of
$7,000,000, the terms and conditions of which were modified by agreement of the
parties to cure or waive certain defaults.
Subject to the fulfillment of the terms and conditions set forth in the Merger
Agreement, including stockholder approval of the merger, RGI/US will be merged
with and into Banyan in accordance with the General Corporation Law of the State
of Delaware and the Washington Business Corporation Act, the separate existence
of RGI/US will cease, and Banyan will be the surviving corporation (the
"Surviving Corporation"). In connection therewith, each of the 1,000 issued and
outstanding shares of RGI/US common stock (all of which is held by RGI Holdings)
will be converted into 4,386,986 newly-issued shares of Banyan Common Stock (the
"Exchange Ratio"). The Exchange Ratio is subject to certain downward
adjustments in the event of an decline in the value of RGI/US stock in an amount
equal to or greater than 10%. Upon consummation of the Merger, assuming no
adjustment to the Exchange Ratio, RGI Holdings (and the related RGI Entities)
will beneficially own approximately 79.0% of the outstanding common stock of the
Surviving Corporation.
Page 16
<PAGE>
A copy of the amendment to the Merger Agreement is attached to this Schedule as
Exhibit 4 and the above description of the Merger Agreement is qualified in its
entirety by reference to Exhibit 1 and Exhibit 4, which are incorporated by
reference in their entirety.
Pursuant to the Merger Agreement at the Initial Closing, Mr. Kenneth Uptain, the
president and a director of both RGI/US and RGI Holdings, was elected to fill a
vacancy on the Banyan Board of Directors. The Banyan Board of Directors also
consists of Banyan's two outside directors, Messrs. Wallace Auch and Robert
Ungerlieder. Mr. Uptain owns 1.21% of the outstanding stock of RGI Antilles and
is a Managing Director of RGI Antilles, a Director of RGI International, and the
President and a Director of RGI Real Estate.
Pursuant to the Merger Agreement, Banyan stockholders will also be asked to vote
on amending Banyan's Certificate of Incorporation to reclassify, combine and
convert each 25 issued and outstanding shares of Banyan Common Stock into one
issued and outstanding share (the "Reverse Split") and to vote on adding an
additional outside and inside director to the Board. If stockholders approve
the amendments to the Surviving Corporation's Certificate of Incorporation and
Bylaws, the Board of Directors will no longer be classified and all directors
will be elected annually. Stockholders of Banyan will also vote on certain
amendments to the Surviving Corporation's Certificate of Incorporation and
Bylaws, including amending the Surviving Corporation's Bylaws to allow further
amendments by a vote of the holders of a majority of outstanding shares as
opposed to 80%.
RGI Holdings may require additional shares or sell shares of Banyan Common
Stock in the future.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a)
Based upon the 47,307,527 shares of Banyan Common Stock outstanding as disclosed
on Banyan's Quarterly Report in Form 10-Q for the Quarter ended September 30,
1996:
RGI Holdings beneficially owns 14,233,266 shares of Banyan Common Stock,
which constitutes approximately 30.1% of the outstanding shares of Banyan
Common Stock; and
RGI Real Estate, as the owner of 80.45% of RGI Holdings, may be deemed to
beneficially own the 14,233,266 shares of the Banyan Common Stock
beneficially owned by RGI Holdings. Each of RGI Holdings and RGI Real
Estate disclaims beneficial ownership of the 160,000 shares owned by RGI
International, a parent entity and the filing of this Schedule shall not be
construed as an admission that any such entity is the beneficial owner of
any securities covered by this Schedule.
RGI International beneficially owns 160,000 shares of Banyan Common Stock,
which constitutes approximately 0.34% of the outstanding shares of Banyan
Common Stock; in addition, RGI International, as an intermediate parent
holding company for RGI Holdings,
Page 17
<PAGE>
may be deemed to beneficially own the 14,233,266 shares of Banyan Common
Stock beneficially owned by RGI Holdings.
Each of RGI Antilles, RGI Europe and RGI Denmark, as parent holding
companies for RGI International (as well as Mr. Rokke, as the majority
shareholder of RGI Antilles, the ultimate parent holding company), may be
deemed to beneficially own the shares of Banyan Common Stock beneficially
owned by RGI International and RGI Holdings, all of which constitutes
14,393,266 shares of Banyan Common Stock or approximately 30.4% of the
outstanding shares of Banyan's Common Stock.
(b)
RGI Holdings has sole power to vote and dispose of 14,233,266 shares of Banyan
Common Stock. As more fully described in Item 3 and Item 6, RGI Holdings has
also been granted proxies to vote 6,766,600 shares at the annual meeting of
Banyan at which, among other things, the Merger will be voted on. RGI Real
Estate, as the 80.45%-parent corporation of RGI Holdings, may be deemed to
share the power to vote and dispose of the 14,233,266 shares of Banyan Common
Stock over which RGI Holdings has sole voting and dispositive power.
RGI International has sole power to vote and dispose of 160,000 shares of Banyan
Common Stock beneficially owned by it, and as a parent holding company of RGI
Real Estate, may be deemed to share the power to vote and dispose of the
14,233,266 shares of Banyan Common Stock over which RGI Real Estate has shared
voting and dispositive power.
Each of RGI Antilles, RGI Europe and RGI Denmark, as parent holding companies
for RGI International (as well as Mr. Rokke, as the majority shareholder of RGI
Antilles, the ultimate parent holding company), may be deemed to have shared
power to vote and dispose of the 14,393,266 shares of Banyan Common Stock over
which RGI International and/or RGI Holdings have sole or shared voting and
dispositive power.
(c)
Except as set forth in Item 3, none of the RGI Entities nor to the best
knowledge of the RGI Entities, any of their respective executive officers or
directors has effected any transaction in shares of Banyan Common Stock during
the past 60 days.
(d)
As more fully described in Item 6 below, RGI Holdings has pledged 7,466,666
shares of Banyan Common Stock held by it to Fokus Bank ASA ("Fokus Bank") as
security for a loan agreement. Upon an "Event of Default" under the loan
agreement, Fokus Bank may receive all dividends from 7,466,666 shares of Banyan
Common Stock beneficially owned by RGI Holdings and could sell such Banyan
Common Stock in accordance with applicable securities laws.
Page 18
<PAGE>
(e)
Not Applicable
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
As described in Item 4, RGI Holdings presently anticipates that upon
consummation of the proposed Merger it will hold a 79.0% equity interest in
Banyan.
RGI Holdings has pledged 7,466,666 shares of Banyan Common Stock beneficially
owned by it to Fokus Bank as security for a loan agreement between RGI Holdings
and Fokus Bank. Upon the occurrence of an "Event of Default" under the loan
agreement, Fokus Bank could vote the Banyan shares or sell such shares in
accordance with applicable securities laws. A copy of the Pledge Agreement is
attached to this Schedule as Exhibit 3 and this description of the Pledge
Agreement is qualified in its entirety by reference to such Exhibit 3, which is
incorporated by reference in its entirety.
Goodman Financial Services ("Goodman") has provided financial advisory services
to RGI/US in connection with the acquisition of shares of Banyan and the Merger.
On August 6, 1996 an agreement with Goodman Financial Services, Inc. was entered
into and it is attached hereto as Exhibit 5 and incorporated by reference in its
entirety.
As described in Item 3, pursuant to (i) the Common Stock Purchase and Sale
Agreement dated December 3, 1996 by and among RGI Holdings, Jack Hofert and
Marilyn Hofert, (ii) the Common Stock Purchase and Sale Agreement dated
December 3, 1996 by and among RGI Holdings and Robert Howard, (iii) the
Common Stock Purchase and Sale Agreement dated December 3, 1996 by and among
RGI Holdings and Erste Osterreichische Sparkasse (First Austrian Bank), (iv)
the Common Stock Purchase and Sale Agreement dated December 5, 1996 by and
among RGI Holdings and Charles F. Trapp, (v) the Common Stock Purchase and
Sale Agreement dated December 5, 1996 by and among RGI Holdings and SMC
Somerset Kensington, L.P., and (vi) the Common Stock Purchase and Sale
Agreement dated December 5, 1996 by and among RGI Holdings and John Patrick
Kneafsey, the sellers granted RGI Holdings a proxy to vote at the annual meeting
on all items, including the Merger, and the sellers will be afforded certain
price protection in the event of an "acquisition transaction" (as defined in the
agreements).
As described in Item 3, pursuant to the Common Stock Purchase and Sale Agreement
dated December 3, 1996 by and among RGI Holdings, Gabriel Capital, L.P., Ariel
Fund Limited and Ariel Management Corp., the sellers granted RGI Holdings
a proxy to vote at the annual meeting on all items, including the Merger.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
The following were filed as Exhibits to the initial Schedule 13D and are not
restated pursuant to Rule 13d-2(c):
Exhibit 1 Agreement and Plan of Merger among RGI/US,
Holdings and Banyan, dated as of April 12,
1996 as amended and restated on May 20, 1996.
Incorporated by reference to
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<PAGE>
Exhibit 2 (i) to the Banyan Current Report on
Form 8-K filed on May 29, 1996.
Exhibit 2 Promissory Note for Initial Shares
Exhibit 3 Stock Pledge Agreement
The following were filed as Exhibits to Amendment No. 1 to Schedule 13D:
Exhibit 4 Amendment to Agreement and Plan of Merger
among RGI/US, Holdings and Banyan, dated as
of September 17, 1996. Incorporated by
reference to Exhibit 2.1 to the Banyan
Registration Statement on Form S-4 filed on
September 20, 1996. (File No. 333-12415)
Exhibit 5 Professional Services Agreement dated August
6, 1996 between RGI/US, RGI Holdings and
Goodman Financial Services, Inc.
The following are filed herewith as Exhibits to this Amendment No. 2 to Schedule
13D:
Exhibit 6 Common Stock Purchase and Sale Agreement
dated December 3, 1996 by and among RGI
Holdings, Jack Hofert and Marilyn Hofert.
Exhibit 7 Common Stock Purchase and Sale Agreement
dated December 3, 1996 by and among RGI
Holdings and Robert Howard.
Exhibit 8 Common Stock Purchase and Sale Agreement
dated December 3, 1996 by and among RGI
Holdings and Erste Osterreichische Sparkasse
(First Austrian Bank).
Exhibit 9 Common Stock Purchase and Sale Agreement
dated December 5, 1996 by and among RGI
Holdings and Charles F. Trapp.
Exhibit 10 Common Stock Purchase and Sale Agreement
dated December 5, 1996 by and among RGI
Holdings and SMC Somerset Kensington, L.P.
Exhibit 11 Common Stock Purchase and Sale Agreement
dated December 5, 1996 by and among RGI
Holdings and John Patrick Kneafsey.
Exhibit 12 Common Stock Purchase and Sale Agreement
dated December 3, 1996 by and among RGI
Holdings, Gabriel Capital, L.P., Ariel Fund
Limited and Ariel Management Corp.
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<PAGE>
SIGNATURES
After reasonable inquiry and to the best of his or its knowledge and belief,
each of the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Dated this 6th day of December, 1996
/s/
------------------------------
Kjell I. Rokke
RGI (Antilles ) N.V.
By:/s/
------------------------------
Name: Kjell I. Rokke
Its: Managing Director
RGI (Europe) B.V.
By:/s/
------------------------------
Name: Kjell I. Rokke
Its: Managing Director
RGI (Denmark) ApS
By:/s/
------------------------------
Name: Kjell I. Rokke
Its: Director
RESOURCE GROUP INTERNATIONAL, INC.
By: /s/
------------------------------
Name: David A. Herrick
Its: Treasurer
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<PAGE>
RGI REAL ESTATE, INC.
By: /s/
------------------------------
Name: Kenneth L. Uptain
Its: President
RGI HOLDINGS, INC.
By: /s/
------------------------------
Name: Kenneth L. Uptain
Its: President
Page 22
<PAGE>
EXHIBIT INDEX
Sequential
Exhibit Page
Number Description Number
------- ----------- ----------
1 Agreement and Plan of Merger among RGI/US,
Holdings and Banyan, dated as of April 12,
1996 as amended and restated as of May 20,
1996. Incorporated by reference to
Exhibit 2(i) to Banyan Current Report on
Form 8-K filed on May 29, 1996 (File No. 1-
9885). -
2 Promissory Note for Initial Shares *
3 Stock Pledge Agreement *
4 Amendment to Agreement and Plan of Merger
among RGI/US, Holdings and Banyan, dated as
of September 17, 1996. Incorporated by
reference to Exhibit 2.1 to the Banyan
Registration Statement on Form S-4 filed on
September 20, 1996. (File No. 333-12415) -
5 Professional Services Agreement dated
August 6, 1996 between RGI/US, RGI Holdings
and Goodman Financial Services, Inc. **
6 Common Stock Purchase and Sale Agreement
dated December 3, 1996 by and among RGI
Holdings, Jack Hofert and Marilyn Hofert.
7 Common Stock Purchase and Sale Agreement
dated December 3, 1996 by and among RGI
Holdings and Robert Howard.
8 Common Stock Purchase and Sale Agreement
dated December 3, 1996 by and among RGI
Holdings and Erste Osterreichishe Sparkasse
(First Austrian Bank).
9 Common Stock Purchase and Sale Agreement
dated December 5, 1996 by and among RGI Holdings
and Charles F. Trapp.
10 Common Stock Purchase and Sale Agreement
dated December 5, 1996 by and among RGI Holdings
and SMC Somerset Kensington, L.P.
11 Common Stock Purchase and Sale Agreement
dated December 5, 1996 by and among RGI Holdings
and John Patrick Kneafsey.
12 Common Stock Purchase and Sale Agreement
dated December 3, 1996 by and among RGI
Holdings, Gabriel Capital, L.P., Ariel Fund
Limited and Ariel Management Corp.
__________
* Filed as an exhibit to initial Schedule 13D and not restated pursuant to
Rule 13d-2(c).
** Filed as an exhibit to Amendment No.1 to Schedule 13D and not restated
pursuant to Rule 13d-2(c).
Page 23
<PAGE>
COMMON STOCK PURCHASE AND SALE AGREEMENT
This Common Stock Purchase and Sale Agreement (the "Agreement"), dated
December 3, 1996, by and among RGI Holdings, Inc., a Washington corporation
("RGI"); and Jack Hofert and Marilyn Hofert, as joint tenants (together, the
"Selling Shareholders").
WHEREAS, the Common Stock, par value $0.01 per share ("Common Stock"), of
Banyan Mortgage Investment Fund, a Delaware corporation (the "Company"), is
publicly traded on the New York Stock Exchange under the symbol "VMG";
WHEREAS, the Selling Shareholders, as joint tenants, own and desire to sell
1,250,000 shares of the Company's Common Stock (as appropriately adjusted as
necessary to reflect a stock split (including the proposed one-for-twenty-five
reverse stock split), stock dividend, merger, consolidation, reclassification,
recapitalization or other similar transaction, the "Shares"), which Shares
constitute approximately 2.6% of the total issued and outstanding shares of
Common Stock; and
WHEREAS, Purchaser desires to purchase the Shares from the Selling
Shareholders, and the Selling Shareholders desire to sell the Shares to
Purchaser, upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants, agreements and conditions hereinafter
set forth, and intending to be legally bound hereby, the parties hereto agree as
follows:
1. PURCHASE AND SALE OF SHARES. Subject to the terms and conditions of
this Agreement, on the Closing Date (as hereinafter defined) the Selling
Shareholders shall sell the Shares to Purchaser, and Purchaser shall purchase
the Shares from the Selling Shareholders.
2. PURCHASE PRICE.
(a) The purchase price (the "Purchase Price") payable per Share to be
purchased by Purchaser hereunder shall be, as of any date, $0.50 (appropriately
adjusted as necessary to reflect a stock split (including the proposed one-for-
twenty-five reverse stock split), stock dividend, merger, consolidation,
reclassification, recapitalization or other similar transaction with respect to
the Common Stock).
(b) The aggregate Purchase Price payable by Purchaser to the Selling
Shareholders pursuant to this Section 2 shall be paid by bank cashier's check or
wire transfer to an account designated in writing by the Selling Shareholders at
least forty-eight (48) hours prior to the Closing.
3. REPRESENTATIONS AND WARRANTIES OF SELLING SHAREHOLDERS. The Selling
Shareholders, jointly and severally, make the following representations and
warranties to Purchaser, each of which is true and correct on the date hereof,
shall remain true and correct to and as of the Closing (as hereinafter defined)
and shall survive the Closing:
(a) Each Selling Shareholder has all requisite power and authority to
enter into this Agreement and the other documents and instruments to be executed
and delivered by the Selling
<PAGE>
Shareholders and to carry out the transactions contemplated hereby and thereby.
This Agreement has been duly and validly executed and delivered by the Selling
Shareholders and constitutes, and when executed and delivered, the other
documents and instruments to be executed and delivered by the Selling
Shareholders pursuant hereto will constitute, valid and binding agreements of
the Selling Shareholders enforceable in accordance with their respective terms,
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforceability of creditors'
rights generally and by general equitable principles. Neither the execution,
delivery and performance of this Agreement nor the consummation of the
transactions contemplated herein will, with or without the giving of notice of
the lapse of time, or both (i) conflict with or result in any violation of or
default under (a) any note, bond, mortgage, indenture, lease, agreement or other
material instrument, permit, concession, grant, franchise or license to which
either Selling Shareholder is a party or by which any of his or her properties
or assets may be bound or (b) any judgment, order, decree, injunction, statute,
rule, permit, license or regulation applicable to either Selling Shareholder or
any of his or her properties, or (ii) result in the acceleration of any material
obligation or the creation of any material lien, charge or encumbrance upon
either Selling Shareholder. No authorization, consent or approval of, or
declaration of, filing with or notice to any governmental body or authority is
necessary for the execution, delivery and performance of this Agreement by
either Selling Shareholder.
(b) The Selling Shareholders are the owners of the Shares, free and
clear of all liens, claims, charges and other encumbrances. Upon the Closing,
the Selling Shareholders shall convey to Purchaser or its permitted assignee
good and marketable title to the Shares, free and clear of all liens, claims,
charges and other encumbrances. None of the Selling Shareholders has any right,
directly or indirectly, to purchase or has any interest in any shares of Common
Stock other than the Shares.
(c) Neither of the Selling Shareholders has retained, employed or
used any broker or finder in connection with the transactions provided for
herein or in connection with the negotiation thereof.
(d) Neither of the Selling Shareholders has offered, directly or
indirectly, any Shares beneficially owned thereby for sale, nor solicited any
offer to buy any such Shares, by means of any general advertising or by any
other form of general solicitation. Neither of the Selling Shareholders has
offered, directly or indirectly, any Shares beneficially owned thereby for sale,
nor solicited any offer to buy any such Shares, in any other manner that would
require the sale of the Shares to be subject to the registration requirements of
the Securities Act of 1933, as amended. Each of the Selling Shareholders
confirms that he or she did not acquire any Shares with a view to, or for,
resale in connection with any distribution thereof within the meaning of the
Securities Act of 1933, as amended, which would not be exempt from the
registration requirements of such Act.
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser makes the
following representations and warranties to the Selling Shareholders, each of
which is true and correct on the date hereof, shall remain true and correct to
and as of the Closing, and shall survive the Closing:
(a) Purchaser is a corporation duly organized, validly existing and
in good standing under the laws of the State of Washington. Purchaser has all
requisite power to enter into this Agreement and the other documents pursuant
hereto and to carry out the transactions contemplated hereby and thereby.
(b) The execution and delivery of this Agreement and the other
documents and
2
<PAGE>
instruments to be executed and delivered by Purchaser pursuant hereto and the
consummation of the transactions contemplated hereby and thereby have been duly
authorized by the Board of Directors of Purchaser. No other corporate act or
proceeding on the part of Purchaser or its shareholders is necessary to
authorize this Agreement or the other documents and instruments to be executed
and delivered by Purchaser pursuant hereto or the consummation of the
transactions contemplated hereby and thereby. This Agreement constitutes, and
when executed and delivered, the other documents and instruments to be executed
and delivered by Purchaser pursuant hereto will constitute, valid and binding
agreements of Purchaser, enforceable in accordance with their respective terms,
except as such may be limited by bankruptcy, insolvency, reorganization or other
laws affecting creditors' rights generally, and by general equitable principles.
(c) Neither the execution, delivery and performance of this Agreement
nor the consummation of the transactions contemplated herein will, with or
without the giving of notice or the lapse of time, or both, (i) conflict with or
result in any violation of or default under (a) any provision of the Articles of
Incorporation or the bylaws of Purchaser, each as amended and/or restated to
date, (b) any note, bond, mortgage, indenture, lease, agreement or other
material instrument, permit, concession, grant, franchise or license to which
Purchaser is a party or by which any of its properties or assets may be bound or
(c) any judgment, order, decree, injunction, statute, rule, permit, license or
regulation applicable to the Purchaser or any of its properties, or (ii) which
result in the acceleration of any material obligation or the creation of any
material lien, charge or encumbrance upon any of the assets of Purchaser. No
authorization, consent or approval of, or declaration of, filing with or notice
to any governmental body or authority is necessary for the execution, delivery
and performance of this Agreement by Purchaser.
(d) Neither Purchaser nor any of its directors, officers, employees
or agents has retained, employed or used any broker or finder in connection with
the transaction provided for herein or in connection with the negotiation
thereof.
5. COVENANTS OF THE SELLING SHAREHOLDERS.
(a) From the date hereof until the Closing, each of the Selling
Shareholders covenants and agrees that he or she will not, without the prior
written consent of RGI, directly or indirectly (i) transfer any of the Shares,
except to Purchaser pursuant hereto, or (ii) exercise any voting rights of the
Shares or grant any proxies (except as set forth herein) or enter into any
voting trust or other agreement or arrangement with respect to the voting of any
Shares.
(b) From the date hereof until the first to occur of (i) the
consummation of the merger of RGI U.S. Holdings, Inc., a Washington corporation,
with and into the Company or (ii) the third business day following the failure
of the shareholders of the Company to approve such a merger at a meeting
thereof, duly called and held, at which a proposal to approve such a merger is
acted upon, each of the Selling Shareholders shall not, directly or indirectly,
acquire or enter into any contract to acquire, any shares of Common Stock or any
voting rights with respect to any shares of Common Stock.
6. CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS. Each and every
obligation of Purchaser to be performed on the Closing Date (as hereinafter
defined) shall be subject to the satisfaction prior to or at the Closing of each
of the following conditions:
3
<PAGE>
(a) Each of the representations and warranties made by the Selling
Shareholders in this Agreement shall be true and correct in all material
respects when made and shall be true and correct in all material respects at and
as of the Closing Date as though such representations and warranties were made
or given on and as of such Closing Date.
(b) Each of the Selling Shareholders shall have in all material
respects performed and complied with all of his or her agreements and
obligations under this Agreement which are to be performed or complied with by
it prior to or on the Closing Date, including the delivery of the closing
documents specified in Section 9.
(c) No injunction or restraining order shall have been issued by any
court of competent jurisdiction that enjoins consummation of the transactions
contemplated hereby.
7. CONDITIONS PRECEDENT TO SELLING SHAREHOLDERS' OBLIGATIONS. Each and
every obligation of the Selling Shareholders to be performed on the Closing Date
shall be subject to the satisfaction prior to or at the Closing on such date of
the following conditions:
(a) Each of the representations and warranties made by Purchaser in
this Agreement shall be true and correct in all material respects when made
shall be true and correct in all material respects at and as of the Closing Date
as though such representations and warranties were made or given on and as of
the Closing Date.
(b) Purchaser shall have in all material respects performed and
complied with all of its agreements and obligations under this Agreement which
are to be performed and complied with by it or prior to or on the Closing Date,
including the delivery of the closing documents specified in Section 10.
(c) No injunction or restraining order shall have been issued by a
court of competent jurisdiction that enjoins consummation of the transactions
contemplated hereby.
8. CLOSING. The closing of the purchase and sale of the Shares (the
"Closing") shall take place at 10:00 a.m. (Pacific Standard Time) on December 6,
1996, or at such other time and place as the parties hereto shall agree upon in
writing. The date on which the Closing occurs is referred to in this Agreement
as the "Closing Date".
9. DOCUMENTS TO BE DELIVERED BY THE SELLING SHAREHOLDERS AT THE CLOSING.
At the Closing the Selling Shareholders shall deliver, or cause to be delivered,
to Purchaser the following documents, in each case duly executed or otherwise in
proper form:
(a) Either (i) stock certificates, duly endorsed for transfer or with
duly executed stock powers attached thereto, representing the Shares, or (ii)
other customary evidence of transfer of the Shares reasonably satisfactory to
RGI and its legal counsel.
(b) A validly executed irrevocable proxy in the form attached hereto
as Exhibit A.
10. DOCUMENTS TO BE DELIVERED BY PURCHASER AT THE CLOSING. At the
Closing, Purchaser shall deliver to the Selling Shareholders a bank cashier's
check or wire transfer in payment of the aggregate Purchase Price for the Shares
as provided in Section 2 above.
4
<PAGE>
11. PRICE PROTECTION.
(a) For purposes of this Section 11, the following definitions shall
apply:
(i) The term "Acquisition Transaction" shall mean:
(A) the acquisition by any Person of securities
representing at least fifty percent (50%) of the combined voting power of
the Company's then outstanding securities; or
(B) the consummation by any Person of (x) any
consolidation, merger or similar transaction involving the Company in which
the Company is not the continuing or surviving corporation or pursuant to
which shares of the Company's Common Stock are converted into cash or
securities, or (y) any purchase, lease, exchange or other acquisition (in
one transaction or a series of related transactions) of all, or
substantially all, of the assets of the Company.
(ii) The term "Person" shall mean any individual, firm,
partnership, corporation or other entity, including any successor (by
merger or otherwise) of such entity, or a group of any of the foregoing
acting in concert.
(b) In the event any Person (including, but not limited to, the
Purchaser) offers, directly or indirectly, an Acquisition Transaction
within four (4) months following the Closing, Purchaser shall pay to the Selling
Shareholders, on the thirty-third day following the consummation of such
Acquisition Transaction, by bank cashier's check or wire transfer to an account
designated in writing by at least forty-eight (48) hours prior to the time for
payment hereunder), a dollar amount (the "Excess Amount") equal to the product
of (i) the aggregate number of Shares and (ii) the excess, if any, of (x) the
fair market value of the cash and/or securities (as determined below) the
Selling Shareholders would have been entitled to receive for each Share in the
Acquisition Transaction had the Closing under this Agreement not occurred and
the Selling Shareholders participated in the Acquisition Transaction over (y)
the Purchase Price per Share paid by Purchaser to the Selling Shareholders
pursuant to this Agreement. For purposes hereof, the fair market value of any
securities shall be the average closing price of such securities for the five
days immediately preceding the thirtieth day following the consummation of the
Acquisition Transaction (as appropriately adjusted as necessary to reflect a
stock split, including the Company's proposed one-for-twenty-five reverse stock
split, stock dividend, merger, consolidation, reclassification, recapitalization
or other similar transaction). In the event an Acquisition Transaction involves
solely the issuance of shares of voting stock or other securities to the holders
of the Company's Common Stock, the Purchaser may, in lieu of paying the Excess
Amount in cash, pay such amount in shares of the voting stock or other
securities delivered to the holders of the Company's Common Stock in the
Acquisition Transaction.
12. TERMINATION. This Agreement may be terminated by the Selling
Shareholders, on one hand, or the Purchaser, on the other hand, if the Closing
shall not have been consummated prior to 5:00 p.m. (Pacific Standard Time) on
December 6, 1996; PROVIDED, HOWEVER, that the obligations of each of the parties
hereto under Sections 14, 17 and 18 shall continue in full force and effect
notwithstanding any such termination, and that no party shall be relieved from
any liability of any kind or nature whatsoever resulting from or arising out of
a breach thereby of this Agreement occurring
5
<PAGE>
prior to such termination.
13. FURTHER ASSURANCES. From time to time prior to, at and after the
Closing, each party hereto shall execute all such instruments and take all such
actions as any other party hereto shall reasonably request in connection with
carrying out and effectuating the transactions contemplated by this Agreement.
14. NOTICES. Any notices required or allowed to be furnished pursuant to
the terms hereof shall be provided to the Selling Shareholders and Purchaser at
the addresses set forth with their signatures below. Notices hereunder shall be
in writing and may be hand delivered, mailed, delivered by overnight courier
service or, if facsimile numbers are provided below, transmitted by facsimile.
If mailed, such notices shall be sent by certified mail, postage prepaid, return
receipt requested. The date which is three (3) business days after the date of
mailing shall be deemed to be the date on which the notice was given. The
postmark affixed to such notice by the U.S. Post Office shall be conclusively
presumed to be the date of mailing for purposes of this Section. In he case of
notices given by hand delivery or overnight courier, such notices shall be
deemed given on the date of the actual receipt. If transmitted by facsimile,
such notices shall be deemed given on the date of the actual receipt of a
complete, legible facsimile transmission, except that if a facsimile
transmission is received after business hours or on a weekend or holiday, then
the notice shall be deemed given on the next business day following the receipt
of the facsimile transmission.
15. GOVERNING LAW. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Delaware without regard to the
conflicts of law provisions thereof.
16. ASSIGNMENT.
(a) The rights and obligations of a party hereunder may not be
assigned, transferred or encumbered without the prior written consent of the
other parties, except that Purchaser may assign its rights hereunder to an
affiliate thereof.
(b) This Agreement shall be binding upon, inure to the benefit of,
and be enforceable by the respective successors and permitted assigns of the
parties hereto. Nothing contained herein shall be deemed to confer upon any
other person any right or remedy under or by reason of this Agreement.
17. EXPENSES. Each of the parties hereto shall bear its own expenses and
the expenses of its counsel and other agents in connection with the transactions
contemplated hereby.
18. SATURDAYS, SUNDAYS AND LEGAL HOLIDAYS. If the time for performance of
any of the terms, conditions and provisions hereof shall fall on a Saturday,
Sunday or legal holiday, then the time of such performance shall be extended to
the next business day thereafter.
19. USAGE OF GENDER SPECIFIC TERMS. As used herein, each of the
masculine, feminine and neuter genders shall include the other genders, the
singular shall include the plural, and the plural shall include the singular,
wherever appropriate to the context.
20. ENTIRE AGREEMENT; AMENDMENT. This Agreement embodies the entire
agreement of the parties with respect to the transactions contemplated herein,
including the purchase and sale of Shares,
6
<PAGE>
and all prior understandings and agreements of the parties relating thereto are
merged herein. This Agreement may not be modified in any manner whatsoever
except by a written instrument signed by the Selling Shareholders and the
Purchaser.
21. WAIVER. No delay in exercising any right or remedy of any of the
parties hereunder shall constitute a waiver thereof, and no waiver by the
Selling Shareholders or Purchaser of the breach of any covenant of this
Agreement shall be construed as a waiver of any preceding or succeeding breach
of the same or any other covenant or condition of this Agreement.
22. HEADINGS. The headings in this Agreement are inserted for convenience
only and shall not constitute a part hereof.
23. SEVERABILITY. If any term, covenant or condition of this Agreement is
held to be invalid or unenforceable in any respect, such invalidity or
unenforceability shall not affect any other provision hereof and this Agreement
shall be construed as if such invalid or unenforceable provision has never been
contained herein.
24. PUBLIC ANNOUNCEMENTS. The parties shall mutually agree on the content
and timing of any public disclosure in relation to the transactions contemplated
hereby, subject to applicable requirements of law.
25. EXECUTION. This Agreement may be executed in separate counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Any party may execute this Agreement by
transmitting a copy of its signature by facsimile to the other parties. In such
event the signing party shall deliver an original of the signature page to each
of the other parties within one business day of signing, and failure to do so
deliver such originals shall result in the facsimile copy of that party's
signature being treated as an original.
IN WITNESS WHEREOF, the undersigned parties have executed this Agreement as
of the date and year first above written.
SELLING
SHAREHOLDERS:
/s/
----------------------------------------
Jack Hofert, as joint tenant
/s/
----------------------------------------
Marilyn Hofert, as joint tenant
Address: 2479 Roscomare Road
Los Angeles, California 90077
Facsimile No.: (310) 476-8602
PURCHASER: RGI HOLDINGS, INC.
7
<PAGE>
By: /s/
--------------------------------
Name: Kenneth L. Uptain
--------------------------
Its: President
---------------------------
Address: 1420 Fifth Avenue
Suite 4200
Seattle, Washington 98101
Facsimile No.: (206) 448-0404
8
<PAGE>
EXHIBIT A
IRREVOCABLE PROXY
By their execution hereof, the undersigned, as joint tenants, hereby
irrevocably constitute and appoint RGI Holdings, Inc., a Washington corporation
("RGI"), with full power of substitution, as their true and lawful proxy and
attorney-in-fact, with respect to the 1,250,000 shares ( as appropriately
adjusted as necessary to reflect a stock split, stock dividend, merger,
consolidation, reclassification, recapitalization or other similar transaction,
the "Shares") of common stock, par value $.01 per share ("Common Stock"), of
Banyan Mortgage Investment Fund, a Delaware corporation (the "Company"), owned
by them as joint tenants as of the date hereof, to: (i) vote at any annual or
special meeting of the stockholders of the Company, to take any action,
including without limitation, adopting a proposed merger of RGI U.S. Holdings,
Inc. with and into the Company, amending the Company's certificate of
incorporation to reclassify, combine and convert each twenty-five issued and
outstanding shares of the Company's Common stock into one issued and outstanding
share, to adopt an Amended and Restated Certificate of Incorporation of the
Company that, among other things, changes Banyan's name to "Legend Properties,
Inc.", and electing directors; (ii) to exercise written consent in lieu of
voting with respect to the matters set forth in the preceding clause (i); and
(iii) to execute, acknowledge, swear to and file in the name, place and stead of
the undersigned any proxy, consent, approval, or other documents to be executed
by the stockholders in connection with the items set forth in the preceding
clauses (i) and (ii). The proxy granted hereby is irrevocable and is given in
connection with the purchase by RGI of the Shares pursuant to a Common Stock
Purchase and Sale Agreement dated December 3, 1996 (the "Purchase Agreement"),
by and among RGI and Jack Hofert and Marilyn Hofert, as joint tenants; PROVIDED,
HOWEVER, that this Irrevocable Proxy shall automatically terminate and be of no
further force or effect with respect to any Shares as of June 30, 1997.
IN WITNESS WHEREOF, the undersigned, as joint tenants, have executed this
Irrevocable Proxy as of the ____ day of December, 1996.
----------------------------------------
Jack Hofert, as joint tenant
----------------------------------------
Marilyn Hofert, as joint tenant
Address: 2479 Roscomare Road
Los Angeles, California 90077
Facsimile No.: (310) 476-8602
<PAGE>
COMMON STOCK PURCHASE AND SALE AGREEMENT
This Common Stock Purchase and Sale Agreement (the "Agreement"), dated
December 3, 1996, by and among RGI Holdings, Inc., a Washington corporation
("RGI"), and Robert Howard (the "Selling Shareholder").
WHEREAS, the Common Stock, par value $0.01 per share ("Common Stock"), of
Banyan Mortgage Investment Fund, a Delaware corporation (the "Company"), is
publicly traded on the New York Stock Exchange under the symbol "VMG";
WHEREAS, the Selling Shareholder owns and desires to sell 181,200 shares of
the Company's Common Stock (as appropriately adjusted as necessary to reflect a
stock split (including the proposed one-for-twenty-five reverse stock split),
stock dividend, merger, consolidation, reclassification, recapitalization or
other similar transaction, the "Shares"), which Shares constitute approximately
0.38% of the total issued and outstanding shares of Common Stock; and
WHEREAS, Purchaser desires to purchase the Shares from the Selling
Shareholder, and the Selling Shareholder desires to sell the Shares to
Purchaser, upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants, agreements and conditions hereinafter
set forth, and intending to be legally bound hereby, the parties hereto agree as
follows:
1. PURCHASE AND SALE OF SHARES. Subject to the terms and conditions
of this Agreement, on the Closing Date (as hereinafter defined) the Selling
Shareholder shall sell the Shares to Purchaser, and Purchaser shall purchase the
Shares from the Selling Shareholder.
2. PURCHASE PRICE.
(a) The purchase price (the "Purchase Price") payable per Share to be
purchased by Purchaser hereunder shall be, as of any date, $0.50 (appropriately
adjusted as necessary to reflect a stock split (including the proposed one-for-
twenty-five reverse stock split), stock dividend, merger, consolidation,
reclassification, recapitalization or other similar transaction with respect to
the Common Stock).
(b) The aggregate Purchase Price payable by Purchaser to the Selling
Shareholder pursuant to this Section 2 shall be paid by bank cashier's check or
wire transfer to an account designated in writing by the Selling Shareholder at
least forty-eight (48) hours prior to the Closing.
3. REPRESENTATIONS AND WARRANTIES OF SELLING SHAREHOLDER. The Selling
Shareholder makes the following representations and warranties to Purchaser,
each of which is true and correct on the date hereof, shall remain true and
correct to and as of the Closing (as hereinafter defined) and shall survive the
Closing:
(a) The Selling Shareholder has all requisite power and authority to
enter into this Agreement and the other documents and instruments to be executed
and delivered by the Selling Shareholder and to carry out the transactions
contemplated hereby and thereby. This Agreement has
<PAGE>
been duly and validly executed and delivered by the Selling Shareholder and
constitutes, and when executed and delivered, the other documents and
instruments to be executed and delivered by the Selling Shareholder pursuant
hereto will constitute, valid and binding agreements of the Selling Shareholder
enforceable in accordance with their respective terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforceability of creditors' rights generally and by
general equitable principles. Neither the execution, delivery and performance
of this Agreement nor the consummation of the transactions contemplated herein
will, with or without the giving of notice of the lapse of time, or both (i)
conflict with or result in any violation of or default under (a) any note, bond,
mortgage, indenture, lease, agreement or other material instrument, permit,
concession, grant, franchise or license to which the Selling Shareholder is a
party or by which any of his properties or assets may be bound or (b) any
judgment, order, decree, injunction, statute, rule, permit, license or
regulation applicable to the Selling Shareholder or any of his properties, or
(ii) result in the acceleration of any material obligation or the creation of
any material lien, charge or encumbrance upon the Selling Shareholder. No
authorization, consent or approval of, or declaration of, filing with or notice
to any governmental body or authority is necessary for the execution, delivery
and performance of this Agreement by the Selling Shareholder.
(b) The Selling Shareholder is the owner of the Shares, free and
clear of all liens, claims, charges and other encumbrances, and the shares are
held by Bankers Trust Company, as custodian, through an account on the book
entry system maintained by the Depository Trust Corporation. Upon the Closing,
the Selling Shareholder shall convey to Purchaser or its permitted assignee good
and marketable title to the Shares, free and clear of all liens, claims, charges
and other encumbrances. The Selling Shareholder has no right, directly or
indirectly, to purchase and, except for an additional 100,000 shares of Common
Stock held in personal retirement accounts, has no interest in any shares of
Common Stock other than the Shares.
(c) The Selling Shareholder has not retained, employed or used any
broker or finder in connection with the transactions provided for herein or in
connection with the negotiation thereof.
(d) The Selling Shareholder has not offered, directly or indirectly,
any Shares beneficially owned thereby for sale, nor solicited any offer to buy
any such Shares, by means of any general advertising or by any other form of
general solicitation. The Selling Shareholder has not offered, directly or
indirectly, any Shares beneficially owned thereby for sale, nor solicited any
offer to buy any such Shares, in any other manner that would require the sale of
the Shares to be subject to the registration requirements of the Securities Act
of 1933, as amended. The Selling Shareholder confirms that he did not acquire
any Shares with a view to, or for, resale in connection with any distribution
thereof within the meaning of the Securities Act of 1933, as amended, which
would not be exempt from the registration requirements of such Act.
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser makes the
following representations and warranties to the Selling Shareholder, each of
which is true and correct on the date hereof, shall remain true and correct to
and as of the Closing, and shall survive the Closing:
(a) Purchaser is a corporation duly organized, validly existing and
in good standing under the laws of the State of Washington. Purchaser has all
requisite power to enter into this Agreement and the other documents pursuant
hereto and to carry out the transactions contemplated hereby and thereby.
(b) The execution and delivery of this Agreement and the other
documents and
2
<PAGE>
instruments to be executed and delivered by Purchaser pursuant hereto and the
consummation of the transactions contemplated hereby and thereby have been duly
authorized by the Board of Directors of Purchaser. No other corporate act or
proceeding on the part of Purchaser or its shareholders is necessary to
authorize this Agreement or the other documents and instruments to be executed
and delivered by Purchaser pursuant hereto or the consummation of the
transactions contemplated hereby and thereby. This Agreement constitutes, and
when executed and delivered, the other documents and instruments to be executed
and delivered by Purchaser pursuant hereto will constitute, valid and binding
agreements of Purchaser, enforceable in accordance with their respective terms,
except as such may be limited by bankruptcy, insolvency, reorganization or other
laws affecting creditors' rights generally, and by general equitable principles.
(c) Neither the execution, delivery and performance of this Agreement
nor the consummation of the transactions contemplated herein will, with or
without the giving of notice or the lapse of time, or both, (i) conflict with or
result in any violation of or default under (a) any provision of the Articles of
Incorporation or the bylaws of Purchaser, each as amended and/or restated to
date, (b) any note, bond, mortgage, indenture, lease, agreement or other
material instrument, permit, concession, grant, franchise or license to which
Purchaser is a party or by which any of its properties or assets may be bound or
(c) any judgment, order, decree, injunction, statute, rule, permit, license or
regulation applicable to the Purchaser or any of its properties, or (ii) which
result in the acceleration of any material obligation or the creation of any
material lien, charge or encumbrance upon any of the assets of Purchaser. No
authorization, consent or approval of, or declaration of, filing with or notice
to any governmental body or authority is necessary for the execution, delivery
and performance of this Agreement by Purchaser.
(d) Neither Purchaser nor any of its directors, officers, employees
or agents has retained, employed or used any broker or finder in connection with
the transaction provided for herein or in connection with the negotiation
thereof.
5. COVENANTS OF THE SELLING SHAREHOLDER.
(a) From the date hereof until the Closing, the Selling Shareholder
covenants and agrees that he will not, without the prior written consent of RGI,
directly or indirectly (i) transfer any of the Shares, except to Purchaser
pursuant hereto, or (ii) exercise any voting rights of the Shares or grant any
proxies (except as set forth herein) or enter into any voting trust or other
agreement or arrangement with respect to the voting of any Shares.
(b) From the date hereof until the first to occur of (i) the
consummation of the merger of RGI U.S. Holdings, Inc., a Washington corporation,
with and into the Company or (ii) the third business day following the failure
of the shareholders of the Company to approve such a merger at a meeting
thereof, duly called and held, at which a proposal to approve such a merger is
acted upon, the Selling Shareholder shall not, directly or indirectly, acquire
or enter into any contract to acquire, any additional shares of Common Stock or
any voting rights with respect to any additional shares of Common Stock.
6. CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS. Each and every
obligation of Purchaser to be performed on the Closing Date (as hereinafter
defined) shall be subject to the satisfaction prior to or at the Closing of each
of the following conditions:
(a) Each of the representations and warranties made by the Selling
Shareholder in
3
<PAGE>
this Agreement shall be true and correct in all material respects when made and
shall be true and correct in all material respects at and as of the Closing Date
as though such representations and warranties were made or given on and as of
such Closing Date.
(b) The Selling Shareholder shall have in all material respects
performed and complied with all of his agreements and obligations under this
Agreement which are to be performed or complied with by it prior to or on the
Closing Date, including the delivery of the closing documents specified in
Section 9.
(c) No injunction or restraining order shall have been issued by any
court of competent jurisdiction that enjoins consummation of the transactions
contemplated hereby.
7. CONDITIONS PRECEDENT TO SELLING SHAREHOLDER'S OBLIGATIONS. Each and
every obligation of the Selling Shareholder to be performed on the Closing Date
shall be subject to the satisfaction prior to or at the Closing on such date of
the following conditions:
(a) Each of the representations and warranties made by Purchaser in
this Agreement shall be true and correct in all material respects when made
shall be true and correct in all material respects at and as of the Closing Date
as though such representations and warranties were made or given on and as of
the Closing Date.
(b) Purchaser shall have in all material respects performed and
complied with all of its agreements and obligations under this Agreement which
are to be performed and complied with by it or prior to or on the Closing Date,
including the delivery of the closing documents specified in Section 10.
(c) No injunction or restraining order shall have been issued by a
court of competent jurisdiction that enjoins consummation of the transactions
contemplated hereby.
8. CLOSING. The closing of the purchase and sale of the Shares (the
"Closing") shall take place at 10:00 a.m. (Pacific Standard Time) on December 6,
1996, or at such other time and place as the parties hereto shall agree upon in
writing. The date on which the Closing occurs is referred to in this Agreement
as the "Closing Date".
9. DOCUMENTS TO BE DELIVERED BY THE SELLING SHAREHOLDER AT THE CLOSING.
At the Closing the Selling Shareholder shall deliver, or cause to be delivered,
to Purchaser the following documents, in each case duly executed or otherwise in
proper form:
(a) Either (i) stock certificates, duly endorsed for transfer or with
duly executed stock powers attached thereto, representing the Shares, or (ii)
other customary evidence of transfer of the Shares reasonably satisfactory to
RGI and its legal counsel.
(b) A validly executed irrevocable proxy in the form attached hereto
as Exhibit A.
10. DOCUMENTS TO BE DELIVERED BY PURCHASER AT THE CLOSING. At the
Closing, Purchaser shall deliver to the Selling Shareholder a bank cashier's
check or wire transfer in payment of the aggregate Purchase Price for the Shares
as provided in Section 2 above.
11. PRICE PROTECTION.
4
<PAGE>
(a) For purposes of this Section 11, the following definitions shall
apply:
(i) The term "Acquisition Transaction" shall mean:
(A) the acquisition by any Person of securities
representing at least fifty percent (50%) of the combined voting power of
the Company's then outstanding securities; or
(B) the consummation by any Person of (x) any
consolidation, merger or similar transaction involving the Company in which
the Company is not the continuing or surviving corporation or pursuant to
which shares of the Company's Common Stock are converted into cash or
securities, or (y) any purchase, lease, exchange or other acquisition (in
one transaction or a series of related transactions) of all, or
substantially all, of the assets of the Company.
(ii) The term "Person" shall mean any individual, firm,
partnership, corporation or other entity, including any successor (by
merger or otherwise) of such entity, or a group of any of the foregoing
acting in concert.
(b) In the event any Person (including, but not limited to, the
Purchaser) offers, directly or indirectly, an Acquisition Transaction within
four (4) months following the Closing, Purchaser shall pay to the Selling
Shareholder, on the thirty-third day following the consummation of such
Acquisition Transaction, by bank cashier's check or wire transfer to an account
designated in writing by at least forty-eight (48) hours prior to the time for
payment hereunder), a dollar amount (the "Excess Amount") equal to the product
of (i) the aggregate number of Shares and (ii) the excess, if any, of (x) the
fair market value of the cash and/or securities (as determined below) the
Selling Shareholder would have been entitled to receive for each Share in the
Acquisition Transaction had the Closing under this Agreement not occurred and
the Selling Shareholder participated in the Acquisition Transaction over (y) the
Purchase Price per Share paid by Purchaser to the Selling Shareholder pursuant
to this Agreement. For purposes hereof, the fair market value of any securities
shall be the average closing price of such securities for the five days
immediately preceding the thirtieth day following the consummation of the
Acquisition Transaction (as appropriately adjusted as necessary to reflect a
stock split, including the Company's proposed one-for-twenty-five reverse stock
split, stock dividend, merger, consolidation, reclassification, recapitalization
or other similar transaction). In the event an Acquisition Transaction involves
solely the issuance of shares of voting stock or other securities to the holders
of the Company's Common Stock, the Purchaser may, in lieu of paying the Excess
Amount in cash, pay such amount in shares of the voting stock or other
securities delivered to the holders of the Company's Common Stock in the
Acquisition Transaction.
12. TERMINATION. This Agreement may be terminated by the Selling
Shareholder, on one hand, or the Purchaser, on the other hand, if the Closing
shall not have been consummated prior to 5:00 p.m. (Pacific Standard Time) on
December 6, 1996; PROVIDED, HOWEVER, that the obligations of each of the parties
hereto under Sections 14, 17 and 18 shall continue in full force and effect
notwithstanding any such termination, and that no party shall be relieved from
any liability of any kind or nature whatsoever resulting from or arising out of
a breach thereby of this Agreement occurring prior to such termination.
13. FURTHER ASSURANCES. From time to time prior to, at and after the
Closing, each party
5
<PAGE>
hereto shall execute all such instruments and take all such actions as any other
party hereto shall reasonably request in connection with carrying out and
effectuating the transactions contemplated by this Agreement.
14. NOTICES. Any notices required or allowed to be furnished pursuant to
the terms hereof shall be provided to the Selling Shareholder and Purchaser at
the addresses set forth with their signatures below. Notices hereunder shall be
in writing and may be hand delivered, mailed, delivered by overnight courier
service or, if facsimile numbers are provided below, transmitted by facsimile.
If mailed, such notices shall be sent by certified mail, postage prepaid, return
receipt requested. The date which is three (3) business days after the date of
mailing shall be deemed to be the date on which the notice was given. The
postmark affixed to such notice by the U.S. Post Office shall be conclusively
presumed to be the date of mailing for purposes of this Section. In he case of
notices given by hand delivery or overnight courier, such notices shall be
deemed given on the date of the actual receipt. If transmitted by facsimile,
such notices shall be deemed given on the date of the actual receipt of a
complete, legible facsimile transmission, except that if a facsimile
transmission is received after business hours or on a weekend or holiday, then
the notice shall be deemed given on the next business day following the receipt
of the facsimile transmission.
15. GOVERNING LAW. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Delaware without regard to the
conflicts of law provisions thereof.
16. ASSIGNMENT.
(a) The rights and obligations of a party hereunder may not be
assigned, transferred or encumbered without the prior written consent of the
other parties, except that Purchaser may assign its rights hereunder to an
affiliate thereof.
(b) This Agreement shall be binding upon, inure to the benefit
of, and be enforceable by the respective successors and permitted assigns of the
parties hereto. Nothing contained herein shall be deemed to confer upon any
other person any right or remedy under or by reason of this Agreement.
17. EXPENSES. Each of the parties hereto shall bear its own expenses and
the expenses of its counsel and other agents in connection with the transactions
contemplated hereby.
18. SATURDAYS, SUNDAYS AND LEGAL HOLIDAYS. If the time for performance of
any of the terms, conditions and provisions hereof shall fall on a Saturday,
Sunday or legal holiday, then the time of such performance shall be extended to
the next business day thereafter.
19. USAGE OF GENDER SPECIFIC TERMS. As used herein, each of the
masculine, feminine and neuter genders shall include the other genders, the
singular shall include the plural, and the plural shall include the singular,
wherever appropriate to the context.
20. ENTIRE AGREEMENT; AMENDMENT. This Agreement embodies the entire
agreement of the parties with respect to the transactions contemplated herein,
including the purchase and sale of Shares, and all prior understandings and
agreements of the parties relating thereto are merged herein. This Agreement
may not be modified in any manner whatsoever except by a written instrument
signed by the Selling Shareholder and the Purchaser.
6
<PAGE>
21. WAIVER. No delay in exercising any right or remedy of any of the
parties hereunder shall constitute a waiver thereof, and no waiver by the
Selling Shareholder or Purchaser of the breach of any covenant of this Agreement
shall be construed as a waiver of any preceding or succeeding breach of the same
or any other covenant or condition of this Agreement.
22. HEADINGS. The headings in this Agreement are inserted for convenience
only and shall not constitute a part hereof.
23. SEVERABILITY. If any term, covenant or condition of this Agreement is
held to be invalid or unenforceable in any respect, such invalidity or
unenforceability shall not affect any other provision hereof and this Agreement
shall be construed as if such invalid or unenforceable provision has never been
contained herein.
24. PUBLIC ANNOUNCEMENTS. The parties shall mutually agree on the content
and timing of any public disclosure in relation to the transactions contemplated
hereby, subject to applicable requirements of law.
25. EXECUTION. This Agreement may be executed in separate counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Any party may execute this Agreement by
transmitting a copy of its signature by facsimile to the other parties. In such
event the signing party shall deliver an original of the signature page to each
of the other parties within one business day of signing, and failure to do so
deliver such originals shall result in the facsimile copy of that party's
signature being treated as an original.
IN WITNESS WHEREOF, the undersigned parties have executed this Agreement as
of the date and year first above written.
SELLING
SHAREHOLDER:
-----------------------------------
Robert Howard
Address: 16434 Royal Hills Drive
Encino, California 91436
Facsimile No.: (818) 986-8144
7
<PAGE>
PURCHASER: RGI HOLDINGS, INC.
By:
--------------------------------
Name:
--------------------------
Its:
---------------------------
Address: 1420 Fifth Avenue
Suite 4200
Seattle, Washington 98101
Facsimile No.: (206) 448-0404
8
<PAGE>
EXHIBIT A
IRREVOCABLE PROXY
By his execution hereof, the undersigned hereby irrevocably constitutes and
appoints RGI Holdings, Inc., a Washington corporation ("RGI"), with full power
of substitution, as his true and lawful proxy and attorney-in-fact, with respect
to the 181,200 shares ( as appropriately adjusted as necessary to reflect a
stock split, stock dividend, merger, consolidation, reclassification,
recapitalization or other similar transaction, the "Shares") of common stock,
par value $.01 per share ("Common Stock"), of Banyan Mortgage Investment Fund, a
Delaware corporation (the "Company"), beneficially owned by him as of the date
hereof, to: (i) vote at any annual or special meeting of the stockholders of
the Company, to take any action, including without limitation, adopting a
proposed merger of RGI U.S. Holdings, Inc. with and into the Company, amending
the Company's certificate of incorporation to reclassify, combine and convert
each twenty-five issued and outstanding shares of the Company's Common Stock
into one issued and outstanding share, to adopt an Amended and Restated
Certificate of Incorporation of the Company that, among other things, changes
Banyan's name to "Legend Properties, Inc.", and electing directors; (ii) to
exercise written consent in lieu of voting with respect to the matters set forth
in the preceding clause (i); and (iii) to execute, acknowledge, swear to and
file in the name, place and stead of the undersigned any proxy, consent,
approval, or other documents to be executed by the stockholders in connection
with the items set forth in the preceding clauses (i) and (ii). The proxy
granted hereby is irrevocable and is given in connection with the purchase by
RGI of the Shares pursuant to a Common Stock Purchase and Sale Agreement dated
December 3, 1996 (the "Purchase Agreement"), by and among RGI and Robert Howard;
PROVIDED, HOWEVER, that this Irrevocable Proxy shall automatically terminate and
be of no further force or effect with respect to any Shares as of June 30, 1997.
IN WITNESS WHEREOF, the undersigned has executed this Irrevocable Proxy as
of the ____ day of December, 1996.
----------------------------------------
Robert Howard
Address: 16434 Royal Hills Drive
Encino, California 91436
Facsimile No.: (818) 986-8144
<PAGE>
COMMON STOCK PURCHASE AND SALE AGREEMENT
This Common Stock Purchase and Sale Agreement (the "Agreement"), dated
December 3, 1996, by and among RGI Holdings, Inc., a Washington corporation
("RGI"), and Erste Osterreichische Sparkasse (First Austrian Bank) (the "Selling
Shareholder").
WHEREAS, the Common Stock, par value $0.01 per share ("Common Stock"), of
Banyan Mortgage Investment Fund, a Delaware corporation (the "Company"), is
publicly traded on the New York Stock Exchange under the symbol "VMG";
WHEREAS, the Selling Shareholder owns and desires to sell 375,000 shares of
the Company's Common Stock (as appropriately adjusted as necessary to reflect a
stock split (including the proposed one-for-twenty-five reverse stock split),
stock dividend, merger, consolidation, reclassification, recapitalization or
other similar transaction, the "Shares"), which Shares constitute approximately
0.79% of the total issued and outstanding shares of Common Stock; and
WHEREAS, Purchaser desires to purchase the Shares from the Selling
Shareholder, and the Selling Shareholder desires to sell the Shares to
Purchaser, upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants, agreements and conditions hereinafter
set forth, and intending to be legally bound hereby, the parties hereto agree as
follows:
1. PURCHASE AND SALE OF SHARES. Subject to the terms and conditions of
this Agreement, on the Closing Date (as hereinafter defined) the Selling
Shareholder shall sell the Shares to Purchaser, and Purchaser shall purchase the
Shares from the Selling Shareholder.
2. PURCHASE PRICE.
(a) The purchase price (the "Purchase Price") payable per Share to be
purchased by Purchaser hereunder shall be, as of any date, $0.50 (appropriately
adjusted as necessary to reflect a stock split (including the proposed one-for-
twenty-five reverse stock split), stock dividend, merger, consolidation,
reclassification, recapitalization or other similar transaction with respect to
the Common Stock).
(b) The aggregate Purchase Price payable by Purchaser to the Selling
Shareholder pursuant to this Section 2 shall be paid by bank cashier's check or
wire transfer to an account designated in writing by the Selling Shareholder at
least forty-eight (48) hours prior to the Closing.
3. REPRESENTATIONS AND WARRANTIES OF SELLING SHAREHOLDER. The Selling
Shareholder makes the following representations and warranties to Purchaser,
each of which is true and correct on the date hereof, shall remain true and
correct to and as of the Closing (as hereinafter defined) and shall survive the
Closing:
(a) The Selling Shareholder is duly organized, validly existing and
in good standing under the laws of its jurisdiction of organization. The
Selling Shareholder has all requisite power and authority to enter into this
Agreement and the other documents and instruments to be executed and
<PAGE>
delivered by the Selling Shareholder and to carry out the transactions
contemplated hereby and thereby. All entity actions and proceedings necessary
to be taken by or on the part of the Selling Shareholder in connection with the
transactions contemplated by this Agreement have been duly and validly taken.
(b) The execution and delivery of this Agreement and the other
documents and instruments to be executed and delivered by the Selling
Shareholder and the consummation of the transactions contemplated hereby and
thereby, have been duly authorized by all requisite action.
(c) No other act or proceeding on behalf of the Selling Shareholder
is necessary to authorize this Agreement or the other documents or instruments
to be executed and delivered by the Selling Shareholder pursuant hereto or the
consummation of the transactions contemplated hereby and thereby. This
Agreement has been duly and validly executed and delivered by the Selling
Shareholder and constitutes, and when executed and delivered, the other
documents and instruments to be executed and delivered by the Selling
Shareholder pursuant hereto will constitute, valid and binding agreements of the
Selling Shareholder enforceable in accordance with their respective terms,
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforceability of creditors'
rights generally and by general equitable principles. Neither the execution,
delivery and performance of this Agreement nor the consummation of the
transactions contemplated herein will, with or without the giving of notice of
the lapse of time, or both (i) conflict with or result in any violation of or
default under (a) any provision of the governing documents of the Selling
Shareholder, (b) any note, bond, mortgage, indenture, lease, agreement or other
material instrument, permit, concession, grant, franchise or license to which
the Selling Shareholder is a party or by which any of its properties or assets
may be bound or (c) any judgment, order, decree, injunction, statute, rule,
permit, license or regulation applicable to the Selling Shareholder or any of
its properties, or (ii) result in the acceleration of any material obligation or
the creation of any material lien, charge or encumbrance upon the Selling
Shareholder. No authorization, consent or approval of, or declaration of,
filing with or notice to any governmental body or authority is necessary for the
execution, delivery and performance of this Agreement by the Selling
Shareholder.
(d) The Selling Shareholder is the owner of the Shares, free and
clear of all liens, claims, charges and other encumbrances, and the shares are
held by Bankers Trust Company, as custodian, through an account on the book
entry system maintained by the Depository Trust Corporation. Upon the Closing,
the Selling Shareholder shall convey to Purchaser or its permitted assignee good
and marketable title to the Shares, free and clear of all liens, claims, charges
and other encumbrances. The Selling Shareholder has no right, directly or
indirectly, to purchase and has no interest in any shares of Common Stock other
than the Shares.
(e) Neither the Selling Shareholder nor any directors, officers,
employees or agents thereof has retained, employed or used any broker or finder
in connection with the transactions provided for herein or in connection with
the negotiation thereof.
(f) The Selling Shareholder has not offered, directly or indirectly,
any Shares beneficially owned thereby for sale, nor solicited any offer to buy
any such Shares, by means of any general advertising or by any other form of
general solicitation. The Selling Shareholder has not offered, directly or
indirectly, any Shares beneficially owned thereby for sale, nor solicited any
offer to buy any such Shares, in any other manner that would require the sale of
the Shares to be subject to the registration requirements of the Securities Act
of 1933, as amended. The Selling Shareholder confirms that it did not acquire
any Shares with a view to, or for, resale in connection with any distribution
thereof within the meaning of the Securities Act of 1933, as amended, which
would not be exempt
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<PAGE>
from the registration requirements of such Act.
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser makes the
following representations and warranties to the Selling Shareholder, each of
which is true and correct on the date hereof, shall remain true and correct to
and as of the Closing, and shall survive the Closing:
(a) Purchaser is a corporation duly organized, validly existing and
in good standing under the laws of the State of Washington. Purchaser has all
requisite power to enter into this Agreement and the other documents pursuant
hereto and to carry out the transactions contemplated hereby and thereby.
(b) The execution and delivery of this Agreement and the other
documents and instruments to be executed and delivered by Purchaser pursuant
hereto and the consummation of the transactions contemplated hereby and thereby
have been duly authorized by the Board of Directors of Purchaser. No other
corporate act or proceeding on the part of Purchaser or its shareholders is
necessary to authorize this Agreement or the other documents and instruments to
be executed and delivered by Purchaser pursuant hereto or the consummation of
the transactions contemplated hereby and thereby. This Agreement constitutes,
and when executed and delivered, the other documents and instruments to be
executed and delivered by Purchaser pursuant hereto will constitute, valid and
binding agreements of Purchaser, enforceable in accordance with their respective
terms, except as such may be limited by bankruptcy, insolvency, reorganization
or other laws affecting creditors' rights generally, and by general equitable
principles.
(c) Neither the execution, delivery and performance of this Agreement
nor the consummation of the transactions contemplated herein will, with or
without the giving of notice or the lapse of time, or both, (i) conflict with or
result in any violation of or default under (a) any provision of the Articles of
Incorporation or the bylaws of Purchaser, each as amended and/or restated to
date, (b) any note, bond, mortgage, indenture, lease, agreement or other
material instrument, permit, concession, grant, franchise or license to which
Purchaser is a party or by which any of its properties or assets may be bound or
(c) any judgment, order, decree, injunction, statute, rule, permit, license or
regulation applicable to the Purchaser or any of its properties, or (ii) which
result in the acceleration of any material obligation or the creation of any
material lien, charge or encumbrance upon any of the assets of Purchaser. No
authorization, consent or approval of, or declaration of, filing with or notice
to any governmental body or authority is necessary for the execution, delivery
and performance of this Agreement by Purchaser.
(d) Neither Purchaser nor any of its directors, officers, employees
or agents has retained, employed or used any broker or finder in connection with
the transaction provided for herein or in connection with the negotiation
thereof.
5. COVENANTS OF THE SELLING SHAREHOLDER.
(a) From the date hereof until the Closing, the Selling Shareholder
covenants and agrees that it will not, without the prior written consent of RGI,
directly or indirectly (i) transfer any of the Shares, except to Purchaser
pursuant hereto, or (ii) exercise any voting rights of the Shares or grant any
proxies (except as set forth herein) or enter into any voting trust or other
agreement or arrangement with respect to the voting of any Shares.
(b) From the date hereof until the first to occur of (i) the
consummation of the
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<PAGE>
merger of RGI U.S. Holdings, Inc., a Washington corporation, with and into the
Company or (ii) the third business day following the failure of the shareholders
of the Company to approve such a merger at a meeting thereof, duly called and
held, at which a proposal to approve such a merger is acted upon, the Selling
Shareholder shall not, directly or indirectly, acquire or enter into any
contract to acquire, any additional shares of Common Stock or any voting rights
with respect to any additional shares of Common Stock.
6. CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS. Each and every
obligation of Purchaser to be performed on the Closing Date (as hereinafter
defined) shall be subject to the satisfaction prior to or at the Closing of each
of the following conditions:
(a) Each of the representations and warranties made by the Selling
Shareholder in this Agreement shall be true and correct in all material respects
when made and shall be true and correct in all material respects at and as of
the Closing Date as though such representations and warranties were made or
given on and as of such Closing Date.
(b) The Selling Shareholder shall have in all material respects
performed and complied with all of its agreements and obligations under this
Agreement which are to be performed or complied with by it prior to or on the
Closing Date, including the delivery of the closing documents specified in
Section 9.
(c) No injunction or restraining order shall have been issued by any
court of competent jurisdiction that enjoins consummation of the transactions
contemplated hereby.
7. CONDITIONS PRECEDENT TO SELLING SHAREHOLDER'S OBLIGATIONS. Each and
every obligation of the Selling Shareholder to be performed on the Closing Date
shall be subject to the satisfaction prior to or at the Closing on such date of
the following conditions:
(a) Each of the representations and warranties made by Purchaser in
this Agreement shall be true and correct in all material respects when made
shall be true and correct in all material respects at and as of the Closing Date
as though such representations and warranties were made or given on and as of
the Closing Date.
(b) Purchaser shall have in all material respects performed and
complied with all of its agreements and obligations under this Agreement which
are to be performed and complied with by it or prior to or on the Closing Date,
including the delivery of the closing documents specified in Section 10.
(c) No injunction or restraining order shall have been issued by a
court of competent jurisdiction that enjoins consummation of the transactions
contemplated hereby.
8. CLOSING. The closing of the purchase and sale of the Shares (the
"Closing") shall take place at 10:00 a.m. (Pacific Standard Time) on December 6,
1996, or at such other time and place as the parties hereto shall agree upon in
writing. The date on which the Closing occurs is referred to in this Agreement
as the "Closing Date".
9. DOCUMENTS TO BE DELIVERED BY THE SELLING SHAREHOLDER AT THE CLOSING.
At the Closing the Selling Shareholder shall deliver, or cause to be delivered,
to Purchaser the following documents, in each case duly executed or otherwise in
proper form:
4
<PAGE>
(a) Either (i) stock certificates, duly endorsed for transfer or with
duly executed stock powers attached thereto, representing the Shares, or (ii)
other customary evidence of transfer of the Shares reasonably satisfactory to
RGI and its legal counsel.
(b) A validly executed irrevocable proxy in the form attached hereto
as Exhibit A.
10. DOCUMENTS TO BE DELIVERED BY PURCHASER AT THE CLOSING. At the
Closing, Purchaser shall deliver to the Selling Shareholder a bank cashier's
check or wire transfer in payment of the aggregate Purchase Price for the Shares
as provided in Section 2 above.
11. PRICE PROTECTION.
(a) For purposes of this Section 11, the following definitions shall
apply:
(i) The term "Acquisition Transaction" shall mean:
(A) the acquisition by any Person of securities
representing at least fifty percent (50%) of the combined voting power of
the Company's then outstanding securities; or
(B) the consummation by any Person of (x) any
consolidation, merger or similar transaction involving the Company in which
the Company is not the continuing or surviving corporation or pursuant to
which shares of the Company's Common Stock are converted into cash or
securities, or (y) any purchase, lease, exchange or other acquisition (in
one transaction or a series of related transactions) of all, or
substantially all, of the assets of the Company.
(ii) The term "Person" shall mean any individual, firm,
partnership, corporation or other entity, including any successor (by
merger or otherwise) of such entity, or a group of any of the foregoing
acting in concert.
(b) In the event any Person (including, but not limited to, the
Purchaser) offers, directly or indirectly, an Acquisition Transaction within
four (4) months following the Closing, Purchaser shall pay to the Selling
Shareholder, on the thirty-third day following the consummation of such
Acquisition Transaction, by bank cashier's check or wire transfer to an account
designated in writing by at least forty-eight (48) hours prior to the time for
payment hereunder), a dollar amount (the "Excess Amount") equal to the product
of (i) the aggregate number of Shares and (ii) the excess, if any, of (x) the
fair market value of the cash and/or securities (as determined below) the
Selling Shareholder would have been entitled to receive for each Share in the
Acquisition Transaction had the Closing under this Agreement not occurred and
the Selling Shareholder participated in the Acquisition Transaction over (y) the
Purchase Price per Share paid by Purchaser to the Selling Shareholder pursuant
to this Agreement. For purposes hereof, the fair market value of any securities
shall be the average closing price of such securities for the five days
immediately preceding the thirtieth day following the consummation of the
Acquisition Transaction (as appropriately adjusted as necessary to reflect a
stock split, including the Company's proposed one-for-twenty-five reverse stock
split, stock dividend, merger, consolidation, reclassification, recapitalization
or other similar transaction). In the event an Acquisition Transaction involves
solely the issuance of shares of voting stock or other securities to the holders
of the Company's Common Stock, the Purchaser may, in lieu of paying the
5
<PAGE>
Excess Amount in cash, pay such amount in shares of the voting stock or other
securities delivered to the holders of the Company's Common Stock in the
Acquisition Transaction.
12. TERMINATION. This Agreement may be terminated by the Selling
Shareholder, on one hand, or the Purchaser, on the other hand, if the Closing
shall not have been consummated prior to 5:00 p.m. (Pacific Standard Time) on
December 6, 1996; PROVIDED, HOWEVER, that the obligations of each of the parties
hereto under Sections 14, 17 and 18 shall continue in full force and effect
notwithstanding any such termination, and that no party shall be relieved from
any liability of any kind or nature whatsoever resulting from or arising out of
a breach thereby of this Agreement occurring prior to such termination.
13. FURTHER ASSURANCES. From time to time prior to, at and after the
Closing, each party hereto shall execute all such instruments and take all such
actions as any other party hereto shall reasonably request in connection with
carrying out and effectuating the transactions contemplated by this Agreement.
14. NOTICES. Any notices required or allowed to be furnished pursuant to
the terms hereof shall be provided to the Selling Shareholder and Purchaser at
the addresses set forth with their signatures below. Notices hereunder shall be
in writing and may be hand delivered, mailed, delivered by overnight courier
service or, if facsimile numbers are provided below, transmitted by facsimile.
If mailed, such notices shall be sent by certified mail, postage prepaid, return
receipt requested. The date which is three (3) business days after the date of
mailing shall be deemed to be the date on which the notice was given. The
postmark affixed to such notice by the U.S. Post Office shall be conclusively
presumed to be the date of mailing for purposes of this Section. In the case of
notices given by hand delivery or overnight courier, such notices shall be
deemed given on the date of the actual receipt. If transmitted by facsimile,
such notices shall be deemed given on the date of the actual receipt of a
complete, legible facsimile transmission, except that if a facsimile
transmission is received after business hours or on a weekend or holiday, then
the notice shall be deemed given on the next business day following the receipt
of the facsimile transmission.
15. GOVERNING LAW. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Delaware without regard to the
conflicts of law provisions thereof.
16. ASSIGNMENT.
(a) The rights and obligations of a party hereunder may not be
assigned, transferred or encumbered without the prior written consent of the
other parties, except that Purchaser may assign its rights hereunder to an
affiliate thereof.
(b) This Agreement shall be binding upon, inure to the benefit of,
and be enforceable by the respective successors and permitted assigns of the
parties hereto. Nothing contained herein shall be deemed to confer upon any
other person any right or remedy under or by reason of this Agreement.
17. EXPENSES. Each of the parties hereto shall bear its own expenses and
the expenses of its counsel and other agents in connection with the transactions
contemplated hereby.
18. SATURDAYS, SUNDAYS AND LEGAL HOLIDAYS. If the time for performance of
any of the terms, conditions and provisions hereof shall fall on a Saturday,
Sunday or legal holiday, then the time
6
<PAGE>
of such performance shall be extended to the next business day thereafter.
19. USAGE OF GENDER SPECIFIC TERMS. As used herein, each of the
masculine, feminine and neuter genders shall include the other genders, the
singular shall include the plural, and the plural shall include the singular,
wherever appropriate to the context.
20. ENTIRE AGREEMENT; AMENDMENT. This Agreement embodies the entire
agreement of the parties with respect to the transactions contemplated herein,
including the purchase and sale of Shares, and all prior understandings and
agreements of the parties relating thereto are merged herein. This Agreement
may not be modified in any manner whatsoever except by a written instrument
signed by the Selling Shareholder and the Purchaser.
21. WAIVER. No delay in exercising any right or remedy of any of the
parties hereunder shall constitute a waiver thereof, and no waiver by the
Selling Shareholder or Purchaser of the breach of any covenant of this Agreement
shall be construed as a waiver of any preceding or succeeding breach of the same
or any other covenant or condition of this Agreement.
22. HEADINGS. The headings in this Agreement are inserted for convenience
only and shall not constitute a part hereof.
23. SEVERABILITY. If any term, covenant or condition of this Agreement is
held to be invalid or unenforceable in any respect, such invalidity or
unenforceability shall not affect any other provision hereof and this Agreement
shall be construed as if such invalid or unenforceable provision has never been
contained herein.
24. PUBLIC ANNOUNCEMENTS. The parties shall mutually agree on the content
and timing of any public disclosure in relation to the transactions contemplated
hereby, subject to applicable requirements of law.
25. EXECUTION. This Agreement may be executed in separate counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Any party may execute this Agreement by
transmitting a copy of its signature by facsimile to the other parties. In such
event the signing party shall deliver an original of the signature page to each
of the other parties within one business day of signing, and failure to do so
deliver such originals shall result in the facsimile copy of that party's
signature being treated as an original.
7
<PAGE>
IN WITNESS WHEREOF, the undersigned parties have executed this Agreement as
of the date and year first above written.
SELLING
SHAREHOLDER: ERSTE OSTERREICHISCHE SPARKASSE
(First Austrian Bank)
By:
-----------------------------------------
Robert Howard, attorney-in-fact and
authorized signatory
Address: c/o Robert Howard, attorney-in-fact
16434 Royal Hills Drive
Encino, California 91436
Facsimile No.: (818) 986-8144
PURCHASER: RGI HOLDINGS, INC.
By:
--------------------------------
Name:
--------------------------
Its:
---------------------------
Address: 1420 Fifth Avenue
Suite 4200
Seattle, Washington 98101
Facsimile No.: (206) 448-0404
8
<PAGE>
EXHIBIT A
IRREVOCABLE PROXY
By its execution hereof, the undersigned hereby irrevocably constitutes and
appoints RGI Holdings, Inc., a Washington corporation ("RGI"), with full power
of substitution, as its true and lawful proxy and attorney-in-fact, with respect
to the 375,000 shares ( as appropriately adjusted as necessary to reflect a
stock split, stock dividend, merger, consolidation, reclassification,
recapitalization or other similar transaction, the "Shares") of common stock,
par value $.01 per share ("Common Stock"), of Banyan Mortgage Investment Fund, a
Delaware corporation (the "Company"), beneficially owned by him as of the date
hereof, to: (i) vote at any annual or special meeting of the stockholders of
the Company, to take any action, including without limitation, adopting a
proposed merger of RGI U.S. Holdings, Inc. with and into the Company, amending
the Company's certificate of incorporation to reclassify, combine and convert
each twenty-five issued and outstanding shares of the Company's Common Stock
into one issued and outstanding share, to adopt an Amended and Restated
Certificate of Incorporation of the Company that, among other things, changes
Banyan's name to "Legend Properties, Inc.", and electing directors; (ii) to
exercise written consent in lieu of voting with respect to the matters set forth
in the preceding clause (i); and (iii) to execute, acknowledge, swear to and
file in the name, place and stead of the undersigned any proxy, consent,
approval, or other documents to be executed by the stockholders in connection
with the items set forth in the preceding clauses (i) and (ii). The proxy
granted hereby is irrevocable and is given in connection with the purchase by
RGI of the Shares pursuant to a Common Stock Purchase and Sale Agreement dated
December 3, 1996 (the "Purchase Agreement"), by and among RGI and Erste
Osterreichische Sparkasse (First Austrian Bank); PROVIDED, HOWEVER, that this
Irrevocable Proxy shall automatically terminate and be of no further force or
effect with respect to any Shares as of June 30, 1997.
IN WITNESS WHEREOF, the undersigned has executed this Irrevocable Proxy as
of the ____ day of December, 1996.
ERSTE OSTERREICHISCHE SPARKASSE
(First Austrian Bank)
----------------------------------------
Robert Howard, attorney-in-fact and
authorized signatory
Address: c/o Robert Howard, attorney-in-fact
16434 Royal Hills Drive
Encino, California 91436
Facsimile No.: (818) 986-8144
<PAGE>
COMMON STOCK PURCHASE AND SALE AGREEMENT
This Common Stock Purchase and Sale Agreement (the "Agreement"), dated
December 5, 1996, by and among RGI Holdings, Inc., a Washington corporation
("RGI"), and Charles F. Trapp (the "Selling Shareholder").
WHEREAS, the Common Stock, par value $0.01 per share ("Common Stock"), of
Banyan Mortgage Investment Fund, a Delaware corporation (the "Company"), is
publicly traded on the New York Stock Exchange under the symbol "VMG";
WHEREAS, the Selling Shareholder owns and desires to sell 100,000 shares of
the Company's Common Stock (as appropriately adjusted as necessary to reflect a
stock split (including the proposed one-for-twenty-five reverse stock split),
stock dividend, merger, consolidation, reclassification, recapitalization or
other similar transaction, the "Shares"), which Shares constitute approximately
0.21% of the total issued and outstanding shares of Common Stock; and
WHEREAS, Purchaser desires to purchase the Shares from the Selling
Shareholder, and the Selling Shareholder desires to sell the Shares to
Purchaser, upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants, agreements and conditions hereinafter
set forth, and intending to be legally bound hereby, the parties hereto agree as
follows:
1. PURCHASE AND SALE OF SHARES. Subject to the terms and conditions of
this Agreement, on the Closing Date (as hereinafter defined) the Selling
Shareholder shall sell the Shares to Purchaser, and Purchaser shall purchase the
Shares from the Selling Shareholder.
2. PURCHASE PRICE.
(a) The purchase price (the "Purchase Price") payable per Share to be
purchased by Purchaser hereunder shall be, as of any date, $0.56 (appropriately
adjusted as necessary to reflect a stock split (including the proposed one-for-
twenty-five reverse stock split), stock dividend, merger, consolidation,
reclassification, recapitalization or other similar transaction with respect to
the Common Stock).
(b) The aggregate Purchase Price payable by Purchaser to the Selling
Shareholder pursuant to this Section 2 shall be paid by bank cashier's check or
wire transfer to an account designated in writing by the Selling Shareholder
prior to the Closing.
<PAGE>
3. REPRESENTATIONS AND WARRANTIES OF SELLING SHAREHOLDER. The Selling
Shareholder makes the following representations and warranties to Purchaser,
each of which is true and correct on the date hereof, shall remain true and
correct to and as of the Closing (as hereinafter defined) and shall survive the
Closing:
(a) The Selling Shareholder has all requisite power and authority to
enter into this Agreement and the other documents and instruments to be executed
and delivered by the Selling Shareholder and to carry out the transactions
contemplated hereby and thereby. This Agreement has been duly and validly
executed and delivered by the Selling Shareholder and constitutes, and when
executed and delivered, the other documents and instruments to be executed and
delivered by the Selling Shareholder pursuant hereto will constitute, valid and
binding agreements of the Selling Shareholder enforceable in accordance with
their respective terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforceability of creditors' rights generally and by general equitable
principles. Neither the execution, delivery and performance of this Agreement
nor the consummation of the transactions contemplated herein will, with or
without the giving of notice of the lapse of time, or both (i) conflict with or
result in any violation of or default under (a) any note, bond, mortgage,
indenture, lease, agreement or other material instrument, permit, concession,
grant, franchise or license to which the Selling Shareholder is a party or by
which any of his properties or assets may be bound or (b) any judgment, order,
decree, injunction, statute, rule, permit, license or regulation applicable to
the Selling Shareholder or any of his properties, or (ii) result in the
acceleration of any material obligation or the creation of any material lien,
charge or encumbrance upon the Selling Shareholder. No authorization, consent
or approval of, or declaration of, filing with or notice to any governmental
body or authority is necessary for the execution, delivery and performance of
this Agreement by the Selling Shareholder.
(b) The Selling Shareholder is the owner of the Shares, free and
clear of all liens, claims, charges and other encumbrances, and the shares are
held by Prudential Securities, as custodian, through an account on the book
entry system maintained by the Depository Trust Corporation. Upon the Closing,
the Selling Shareholder shall convey to Purchaser or its permitted assignee good
and marketable title to the Shares, free and clear of all liens, claims, charges
and other encumbrances. The Selling Shareholder has no right, directly or
indirectly, to purchase and has no interest in any shares of Common Stock other
than the Shares.
(c) The Selling Shareholder has not retained, employed or used any
broker or finder in connection with the transactions provided for herein or in
connection with the negotiation thereof.
(d) The Selling Shareholder has not offered, directly or indirectly,
any
2
<PAGE>
Shares beneficially owned thereby for sale, nor solicited any offer to buy any
such Shares, by means of any general advertising or by any other form of general
solicitation. The Selling Shareholder has not offered, directly or indirectly,
any Shares beneficially owned thereby for sale, nor solicited any offer to buy
any such Shares, in any other manner that would require the sale of the Shares
to be subject to the registration requirements of the Securities Act of 1933, as
amended. The Selling Shareholder confirms that he did not acquire any Shares
with a view to, or for, resale in connection with any distribution thereof
within the meaning of the Securities Act of 1933, as amended, which would not be
exempt from the registration requirements of such Act.
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser makes the
following representations and warranties to the Selling Shareholder, each of
which is true and correct on the date hereof, shall remain true and correct to
and as of the Closing, and shall survive the Closing:
(a) Purchaser is a corporation duly organized, validly existing and
in good standing under the laws of the State of Washington. Purchaser has all
requisite power to enter into this Agreement and the other documents pursuant
hereto and to carry out the transactions contemplated hereby and thereby.
(b) The execution and delivery of this Agreement and the other
documents and instruments to be executed and delivered by Purchaser pursuant
hereto and the consummation of the transactions contemplated hereby and thereby
have been duly authorized by the Board of Directors of Purchaser. No other
corporate act or proceeding on the part of Purchaser or its shareholders is
necessary to authorize this Agreement or the other documents and instruments to
be executed and delivered by Purchaser pursuant hereto or the consummation of
the transactions contemplated hereby and thereby. This Agreement constitutes,
and when executed and delivered, the other documents and instruments to be
executed and delivered by Purchaser pursuant hereto will constitute, valid and
binding agreements of Purchaser, enforceable in accordance with their respective
terms, except as such may be limited by bankruptcy, insolvency, reorganization
or other laws affecting creditors' rights generally, and by general equitable
principles.
(c) Neither the execution, delivery and performance of this Agreement
nor the consummation of the transactions contemplated herein will, with or
without the giving of notice or the lapse of time, or both, (i) conflict with or
result in any violation of or default under (a) any provision of the Articles of
Incorporation or the bylaws of Purchaser, each as amended and/or restated to
date, (b) any note, bond, mortgage, indenture, lease, agreement or other
material instrument, permit, concession, grant, franchise or license to which
Purchaser is a party or by which any of its properties or assets may be bound or
(c) any judgment, order, decree, injunction, statute, rule, permit, license or
regulation applicable to the Purchaser or any of its properties, or (ii) which
result in the acceleration of any
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material obligation or the creation of any material lien, charge or encumbrance
upon any of the assets of Purchaser. No authorization, consent or approval of,
or declaration of, filing with or notice to any governmental body or authority
is necessary for the execution, delivery and performance of this Agreement by
Purchaser.
(d) Neither Purchaser nor any of its directors, officers, employees
or agents has retained, employed or used any broker or finder in connection with
the transaction provided for herein or in connection with the negotiation
thereof.
5. COVENANTS OF THE SELLING SHAREHOLDER.
(a) From the date hereof until the Closing, the Selling Shareholder
covenants and agrees that he will not, without the prior written consent of RGI,
directly or indirectly (i) transfer any of the Shares, except to Purchaser
pursuant hereto, or (ii) exercise any voting rights of the Shares or grant any
proxies (except as set forth herein) or enter into any voting trust or other
agreement or arrangement with respect to the voting of any Shares.
(b) From the date hereof until the first to occur of (i) the
consummation of the merger of RGI U.S. Holdings, Inc., a Washington corporation,
with and into the Company or (ii) the third business day following the failure
of the shareholders of the Company to approve such a merger at a meeting
thereof, duly called and held, at which a proposal to approve such a merger is
acted upon, the Selling Shareholder shall not, directly or indirectly, acquire
or enter into any contract to acquire, any additional shares of Common Stock or
any voting rights with respect to any additional shares of Common Stock.
6. CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS. Each and every
obligation of Purchaser to be performed on the Closing Date (as hereinafter
defined) shall be subject to the satisfaction prior to or at the Closing of each
of the following conditions:
(a) Each of the representations and warranties made by the Selling
Shareholder in this Agreement shall be true and correct in all material respects
when made and shall be true and correct in all material respects at and as of
the Closing Date as though such representations and warranties were made or
given on and as of such Closing Date.
(b) The Selling Shareholder shall have in all material respects
performed and complied with all of his agreements and obligations under this
Agreement which are to be performed or complied with by it prior to or on the
Closing Date, including the delivery of the closing documents specified in
Section 9.
(c) No injunction or restraining order shall have been issued by any
court of competent jurisdiction that enjoins consummation of the transactions
contemplated hereby.
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7. CONDITIONS PRECEDENT TO SELLING SHAREHOLDER'S OBLIGATIONS. Each and
every obligation of the Selling Shareholder to be performed on the Closing Date
shall be subject to the satisfaction prior to or at the Closing on such date of
the following conditions:
(a) Each of the representations and warranties made by Purchaser in
this Agreement shall be true and correct in all material respects when made
shall be true and correct in all material respects at and as of the Closing Date
as though such representations and warranties were made or given on and as of
the Closing Date.
(b) Purchaser shall have in all material respects performed and
complied with all of its agreements and obligations under this Agreement which
are to be performed and complied with by it or prior to or on the Closing Date,
including the delivery of the closing documents specified in Section 10.
(c) No injunction or restraining order shall have been issued by a
court of competent jurisdiction that enjoins consummation of the transactions
contemplated hereby.
8. CLOSING. The closing of the purchase and sale of the Shares (the
"Closing") shall take place at 10:00 a.m. (Pacific Standard Time) on December 6,
1996, or at such other time and place as the parties hereto shall agree upon in
writing. The date on which the Closing occurs is referred to in this Agreement
as the "Closing Date".
9. DOCUMENTS TO BE DELIVERED BY THE SELLING SHAREHOLDER AT THE CLOSING.
At the Closing the Selling Shareholder shall deliver, or cause to be delivered,
to Purchaser the following documents, in each case duly executed or otherwise in
proper form:
(a) Either (i) stock certificates, duly endorsed for transfer or with
duly executed stock powers attached thereto, representing the Shares, or (ii)
other customary evidence of transfer of the Shares reasonably satisfactory to
RGI and its legal counsel.
(b) A validly executed irrevocable proxy in the form attached hereto
as Exhibit A.
10. DOCUMENTS TO BE DELIVERED BY PURCHASER AT THE CLOSING. At the
Closing, Purchaser shall deliver to the Selling Shareholder a bank cashier's
check or wire transfer in payment of the aggregate Purchase Price for the Shares
as provided in Section 2 above.
11. PRICE PROTECTION.
(a) For purposes of this Section 11, the following definitions shall
apply:
(i) The term "Acquisition Transaction" shall mean:
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(A) the acquisition by any Person of securities
representing at least fifty percent (50%) of the combined voting power of
the Company's then outstanding securities; or
(B) the consummation by any Person of (x) any
consolidation, merger or similar transaction involving the Company in which
the Company is not the continuing or surviving corporation or pursuant to
which shares of the Company's Common Stock are converted into cash or
securities, or (y) any purchase, lease, exchange or other acquisition (in
one transaction or a series of related transactions) of all, or
substantially all, of the assets of the Company.
(ii) The term "Person" shall mean any individual, firm,
partnership, corporation or other entity, including any successor (by
merger or otherwise) of such entity, or a group of any of the foregoing
acting in concert.
(b) In the event any Person (including, but not limited to, the
Purchaser) offers, directly or indirectly, an Acquisition Transaction within
four (4) months following the Closing, Purchaser shall pay to the Selling
Shareholder, on the thirty-third day following the consummation of such
Acquisition Transaction, by bank cashier's check or wire transfer to an account
designated in writing by at least forty-eight (48) hours prior to the time for
payment hereunder), a dollar amount (the "Excess Amount") equal to the product
of (i) the aggregate number of Shares and (ii) the excess, if any, of (x) the
fair market value of the cash and/or securities (as determined below) the
Selling Shareholder would have been entitled to receive for each Share in the
Acquisition Transaction had the Closing under this Agreement not occurred and
the Selling Shareholder participated in the Acquisition Transaction over (y) the
Purchase Price per Share paid by Purchaser to the Selling Shareholder pursuant
to this Agreement. For purposes hereof, the fair market value of any securities
shall be the average closing price of such securities for the five days
immediately preceding the thirtieth day following the consummation of the
Acquisition Transaction (as appropriately adjusted as necessary to reflect a
stock split, including the Company's proposed one-for-twenty-five reverse stock
split, stock dividend, merger, consolidation, reclassification, recapitalization
or other similar transaction). In the event an Acquisition Transaction involves
solely the issuance of shares of voting stock or other securities to the holders
of the Company's Common Stock, the Purchaser may, in lieu of paying the Excess
Amount in cash, pay such amount in shares of the voting stock or other
securities delivered to the holders of the Company's Common Stock in the
Acquisition Transaction.
12. TERMINATION. This Agreement may be terminated by the Selling
Shareholder, on one hand, or the Purchaser, on the other hand, if the Closing
shall not have been consummated prior to 5:00 p.m. (Pacific Standard Time) on
December 6, 1996; PROVIDED, HOWEVER, that the obligations of each of the parties
hereto under Sections 14, 17 and 24 shall continue in full force and effect
notwithstanding any such termination, and that no party
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shall be relieved from any liability of any kind or nature whatsoever resulting
from or arising out of a breach thereby of this Agreement occurring prior to
such termination.
13. FURTHER ASSURANCES. From time to time prior to, at and after the
Closing, each party hereto shall execute all such instruments and take all such
actions as any other party hereto shall reasonably request in connection with
carrying out and effectuating the transactions contemplated by this Agreement.
14. NOTICES. Any notices required or allowed to be furnished pursuant to
the terms hereof shall be provided to the Selling Shareholder and Purchaser at
the addresses set forth with their signatures below. Notices hereunder shall be
in writing and may be hand delivered, mailed, delivered by overnight courier
service or, if facsimile numbers are provided below, transmitted by facsimile.
If mailed, such notices shall be sent by certified mail, postage prepaid, return
receipt requested. The date which is three (3) business days after the date of
mailing shall be deemed to be the date on which the notice was given. The
postmark affixed to such notice by the U.S. Post Office shall be conclusively
presumed to be the date of mailing for purposes of this Section. In he case of
notices given by hand delivery or overnight courier, such notices shall be
deemed given on the date of the actual receipt. If transmitted by facsimile,
such notices shall be deemed given on the date of the actual receipt of a
complete, legible facsimile transmission, except that if a facsimile
transmission is received after business hours or on a weekend or holiday, then
the notice shall be deemed given on the next business day following the receipt
of the facsimile transmission.
15. GOVERNING LAW. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Delaware without regard to the
conflicts of law provisions thereof.
16. ASSIGNMENT.
(a) The rights and obligations of a party hereunder may not be
assigned, transferred or encumbered without the prior written consent of the
other parties, except that Purchaser may assign its rights hereunder to an
affiliate thereof.
(b) This Agreement shall be binding upon, inure to the benefit of,
and be enforceable by the respective successors and permitted assigns of the
parties hereto. Nothing contained herein shall be deemed to confer upon any
other person any right or remedy under or by reason of this Agreement.
17. EXPENSES. Each of the parties hereto shall bear its own expenses and
the expenses of its counsel and other agents in connection with the transactions
contemplated hereby.
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18. SATURDAYS, SUNDAYS AND LEGAL HOLIDAYS. If the time for performance of
any of the terms, conditions and provisions hereof shall fall on a Saturday,
Sunday or legal holiday, then the time of such performance shall be extended to
the next business day thereafter.
19. USAGE OF GENDER SPECIFIC TERMS. As used herein, each of the
masculine, feminine and neuter genders shall include the other genders, the
singular shall include the plural, and the plural shall include the singular,
wherever appropriate to the context.
20. ENTIRE AGREEMENT; AMENDMENT. This Agreement embodies the entire
agreement of the parties with respect to the transactions contemplated herein,
including the purchase and sale of Shares, and all prior understandings and
agreements of the parties relating thereto are merged herein. This Agreement
may not be modified in any manner whatsoever except by a written instrument
signed by the Selling Shareholder and the Purchaser.
21. WAIVER. No delay in exercising any right or remedy of any of the
parties hereunder shall constitute a waiver thereof, and no waiver by the
Selling Shareholder or Purchaser of the breach of any covenant of this Agreement
shall be construed as a waiver of any preceding or succeeding breach of the same
or any other covenant or condition of this Agreement.
22. HEADINGS. The headings in this Agreement are inserted for convenience
only and shall not constitute a part hereof.
23. SEVERABILITY. If any term, covenant or condition of this Agreement is
held to be invalid or unenforceable in any respect, such invalidity or
unenforceability shall not affect any other provision hereof and this Agreement
shall be construed as if such invalid or unenforceable provision has never been
contained herein.
24. PUBLIC ANNOUNCEMENTS. The parties shall mutually agree on the content
and timing of any public disclosure in relation to the transactions contemplated
hereby, subject to applicable requirements of law.
25. EXECUTION. This Agreement may be executed in separate counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Any party may execute this Agreement by
transmitting a copy of its signature by facsimile to the other parties. In such
event the signing party shall deliver an original of the signature page to each
of the other parties within one business day of signing, and failure to do so
deliver such originals shall result in the facsimile copy of that party's
signature being treated as an original.
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IN WITNESS WHEREOF, the undersigned parties have executed this Agreement as
of the date and year first above written.
SELLING
SHAREHOLDER:
________________________________________
Charles F. Trapp
Address: 1158 Staffler Road
Bridgewater, New Jersey 08807
Facsimile No.:_____________________
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PURCHASER: RGI HOLDINGS, INC.
By:_____________________________
Name:_______________________
Its:________________________
Address: 1420 Fifth Avenue
Suite 4200
Seattle, Washington 98101
Facsimile No.: (206) 448-0404
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EXHIBIT A
IRREVOCABLE PROXY
By his execution hereof, the undersigned hereby irrevocably constitutes and
appoints RGI Holdings, Inc., a Washington corporation ("RGI"), with full power
of substitution, as his true and lawful proxy and attorney-in-fact, with respect
to the 100,000 shares ( as appropriately adjusted as necessary to reflect a
stock split, stock dividend, merger, consolidation, reclassification,
recapitalization or other similar transaction, the "Shares") of common stock,
par value $.01 per share ("Common Stock"), of Banyan Mortgage Investment Fund, a
Delaware corporation (the "Company"), beneficially owned by him as of the date
hereof, to: (i) vote at any annual or special meeting of the stockholders of
the Company, to take any action, including without limitation, adopting a
proposed merger of RGI U.S. Holdings, Inc. with and into the Company, amending
the Company's certificate of incorporation to reclassify, combine and convert
each twenty-five issued and outstanding shares of the Company's Common Stock
into one issued and outstanding share, to adopt an Amended and Restated
Certificate of Incorporation of the Company that, among other things, changes
Banyan's name to "Legend Properties, Inc.", and electing directors; (ii) to
exercise written consent in lieu of voting with respect to the matters set forth
in the preceding clause (i); and (iii) to execute, acknowledge, swear to and
file in the name, place and stead of the undersigned any proxy, consent,
approval, or other documents to be executed by the stockholders in connection
with the items set forth in the preceding clauses (i) and (ii). The proxy
granted hereby is irrevocable and is given in connection with the purchase by
RGI of the Shares pursuant to a Common Stock Purchase and Sale Agreement dated
December 5, 1996 (the "Purchase Agreement"), by and among RGI and Charles F.
Trapp; PROVIDED, HOWEVER, that this Irrevocable Proxy shall automatically
terminate and be of no further force or effect with respect to any Shares as of
June 30, 1997.
IN WITNESS WHEREOF, the undersigned has executed this Irrevocable Proxy as
of the 6th day of December, 1996.
________________________________________
Charles F. Trapp
Address: 1158 Staffler Road
Bridgewater, New Jersey 08807
Facsimile No.:________________________
<PAGE>
COMMON STOCK PURCHASE AND SALE AGREEMENT
This Common Stock Purchase and Sale Agreement (the "Agreement"), dated
December 5, 1996, by and among RGI Holdings, Inc., a Washington corporation
("RGI"), and SMC Somerset Kensington Partners, L.P., a Delaware limited
partnership (the "Selling Shareholder").
WHEREAS, the Common Stock, par value $0.01 per share ("Common Stock"), of
Banyan Mortgage Investment Fund, a Delaware corporation (the "Company"), is
publicly traded on the New York Stock Exchange under the symbol "VMG";
WHEREAS, the Selling Shareholder owns and desires to sell 724,500 shares of
the Company's Common Stock (as appropriately adjusted as necessary to reflect a
stock split (including the proposed one-for-twenty-five reverse stock split),
stock dividend, merger, consolidation, reclassification, recapitalization or
other similar transaction, the "Shares"), which Shares constitute approximately
1.5% of the total issued and outstanding shares of Common Stock; and
WHEREAS, Purchaser desires to purchase the Shares from the Selling
Shareholder, and the Selling Shareholder desires to sell the Shares to
Purchaser, upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants, agreements and conditions hereinafter
set forth, and intending to be legally bound hereby, the parties hereto agree as
follows:
1. PURCHASE AND SALE OF SHARES. Subject to the terms and conditions of
this Agreement, on the Closing Date (as hereinafter defined) the Selling
Shareholder shall sell the Shares to Purchaser, and Purchaser shall purchase the
Shares from the Selling Shareholder.
2. PURCHASE PRICE.
(a) The purchase price (the "Purchase Price") payable per Share to be
purchased by Purchaser hereunder shall be, as of any date, $0.56 (appropriately
adjusted as necessary to reflect a stock split (including the proposed one-for-
twenty-five reverse stock split), stock dividend, merger, consolidation,
reclassification, recapitalization or other similar transaction with respect to
the Common Stock).
(b) The aggregate Purchase Price payable by Purchaser to the Selling
Shareholder pursuant to this Section 2 shall be paid by bank cashier's check or
wire transfer to an account designated in writing by the Selling Shareholder
prior to the Closing.
<PAGE>
3. REPRESENTATIONS AND WARRANTIES OF SELLING SHAREHOLDER. The Selling
Shareholder makes the following representations and warranties to Purchaser,
each of which is true and correct on the date hereof, shall remain true and
correct to and as of the Closing (as hereinafter defined) and shall survive the
Closing:
(a) The Selling Shareholder is duly organized, validly existing and
in good standing under the laws of its jurisdiction of organization. The
Selling Shareholder has all requisite power and authority to enter into this
Agreement and the other documents and instruments to be executed and delivered
by the Selling Shareholder and to carry out the transactions contemplated hereby
and thereby. All entity actions and proceedings necessary to be taken by or on
the part of the Selling Shareholder and and its sole general partner, Somerset
Kensington Capital, Inc. (the "General Partner"), in connection with the
transactions contemplated by this Agreement have been duly and validly taken.
(b) The execution and delivery of this Agreement and the other
documents and instruments to be executed and delivered by the General Partner,
on behalf of the Selling Shareholder, and the consummation of the transactions
contemplated hereby and thereby, have been duly authorized by all requisite
action.
(c) No other act or proceeding on behalf of the Selling Shareholder
or the General Partner is necessary to authorize this Agreement or the other
documents or instruments to be executed and delivered by the Selling Shareholder
pursuant hereto or the consummation of the transactions contemplated hereby and
thereby. This Agreement has been duly and validly executed and delivered by the
Selling Shareholder and constitutes, and when executed and delivered, the other
documents and instruments to be executed and delivered by the Selling
Shareholder pursuant hereto will constitute, valid and binding agreements of the
Selling Shareholder enforceable in accordance with their respective terms,
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforceability of creditors'
rights generally and by general equitable principles. Neither the execution,
delivery and performance of this Agreement nor the consummation of the
transactions contemplated herein will, with or without the giving of notice of
the lapse of time, or both (i) conflict with or result in any violation of or
default under (a) any provision of the governing documents of the Selling
Shareholder, (b) any note, bond, mortgage, indenture, lease, agreement or other
material instrument, permit, concession, grant, franchise or license to which
the Selling Shareholder is a party or by which any of its properties or assets
may be bound or (c) any judgment, order, decree, injunction, statute, rule,
permit, license or regulation applicable to the Selling Shareholder or any of
its properties, or (ii) result in the acceleration of any material obligation or
the creation of any material lien, charge or encumbrance upon the Selling
Shareholder. No authorization, consent or approval of, or declaration of,
filing with or notice to any governmental body or authority is necessary for the
execution, delivery and performance of this Agreement by the Selling
Shareholder.
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(d) The Selling Shareholder is the owner of the Shares, free and
clear of all liens, claims, charges and other encumbrances, and the shares are
held by Prudential Securities, as custodian, through an account on the book
entry system maintained by the Depository Trust Corporation. Upon the Closing,
the Selling Shareholder shall convey to Purchaser or its permitted assignee good
and marketable title to the Shares, free and clear of all liens, claims, charges
and other encumbrances. The Selling Shareholder has no right, directly or
indirectly (through its General Partner or otherwise), to purchase and has no
interest in any shares of Common Stock other than the Shares.
(e) None of the Selling Shareholder, its General Partner or any
directors, officers, employees or agents thereof has retained, employed or used
any broker or finder in connection with the transactions provided for herein or
in connection with the negotiation thereof.
(f) The Selling Shareholder has not offered, directly or indirectly
(through its General Partner or otherwise), any Shares beneficially owned
thereby for sale, nor solicited any offer to buy any such Shares, by means of
any general advertising or by any other form of general solicitation. The
Selling Shareholder has not offered, directly or indirectly (through its General
Partner or otherwise), any Shares beneficially owned thereby for sale, nor
solicited any offer to buy any such Shares, in any other manner that would
require the sale of the Shares to be subject to the registration requirements of
the Securities Act of 1933, as amended. The Selling Shareholder confirms that
it did not acquire any Shares with a view to, or for, resale in connection with
any distribution thereof within the meaning of the Securities Act of 1933, as
amended, which would not be exempt from the registration requirements of such
Act.
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser makes the
following representations and warranties to the Selling Shareholder, each of
which is true and correct on the date hereof, shall remain true and correct to
and as of the Closing, and shall survive the Closing:
(a) Purchaser is a corporation duly organized, validly existing and
in good standing under the laws of the State of Washington. Purchaser has all
requisite power to enter into this Agreement and the other documents pursuant
hereto and to carry out the transactions contemplated hereby and thereby.
(b) The execution and delivery of this Agreement and the other
documents and instruments to be executed and delivered by Purchaser pursuant
hereto and the consummation of the transactions contemplated hereby and thereby
have been duly authorized by the Board of Directors of Purchaser. No other
corporate act or proceeding on the part of Purchaser or its shareholders is
necessary to authorize this Agreement or the other documents and instruments to
be executed and delivered by Purchaser pursuant hereto
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or the consummation of the transactions contemplated hereby and thereby. This
Agreement constitutes, and when executed and delivered, the other documents and
instruments to be executed and delivered by Purchaser pursuant hereto will
constitute, valid and binding agreements of Purchaser, enforceable in accordance
with their respective terms, except as such may be limited by bankruptcy,
insolvency, reorganization or other laws affecting creditors' rights generally,
and by general equitable principles.
(c) Neither the execution, delivery and performance of this Agreement
nor the consummation of the transactions contemplated herein will, with or
without the giving of notice or the lapse of time, or both, (i) conflict with or
result in any violation of or default under (a) any provision of the Articles of
Incorporation or the bylaws of Purchaser, each as amended and/or restated to
date, (b) any note, bond, mortgage, indenture, lease, agreement or other
material instrument, permit, concession, grant, franchise or license to which
Purchaser is a party or by which any of its properties or assets may be bound or
(c) any judgment, order, decree, injunction, statute, rule, permit, license or
regulation applicable to the Purchaser or any of its properties, or (ii) which
result in the acceleration of any material obligation or the creation of any
material lien, charge or encumbrance upon any of the assets of Purchaser. No
authorization, consent or approval of, or declaration of, filing with or notice
to any governmental body or authority is necessary for the execution, delivery
and performance of this Agreement by Purchaser.
(d) Neither Purchaser nor any of its directors, officers, employees
or agents has retained, employed or used any broker or finder in connection with
the transaction provided for herein or in connection with the negotiation
thereof.
5. COVENANTS OF THE SELLING SHAREHOLDER.
(a) From the date hereof until the Closing, the Selling Shareholder
covenants and agrees that it will not, without the prior written consent of RGI,
directly or indirectly (through its General Partner or otherwise) (i) transfer
any of the Shares, except to Purchaser pursuant hereto, or (ii) exercise any
voting rights of the Shares or grant any proxies (except as set forth herein) or
enter into any voting trust or other agreement or arrangement with respect to
the voting of any Shares.
(b) From the date hereof until the first to occur of (i) the
consummation of the merger of RGI U.S. Holdings, Inc., a Washington corporation,
with and into the Company or (ii) the third business day following the failure
of the shareholders of the Company to approve such a merger at a meeting
thereof, duly called and held, at which a proposal to approve such a merger is
acted upon, the Selling Shareholder shall not, directly or indirectly (through
its General Partner or otherwise), acquire or enter into any contract to
acquire, any additional shares of Common Stock or any voting rights with respect
to any additional shares of Common Stock.
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6. CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS. Each and every
obligation of Purchaser to be performed on the Closing Date (as hereinafter
defined) shall be subject to the satisfaction prior to or at the Closing of each
of the following conditions:
(a) Each of the representations and warranties made by the Selling
Shareholder in this Agreement shall be true and correct in all material respects
when made and shall be true and correct in all material respects at and as of
the Closing Date as though such representations and warranties were made or
given on and as of such Closing Date.
(b) The Selling Shareholder shall have in all material respects
performed and complied with all of its agreements and obligations under this
Agreement which are to be performed or complied with by it prior to or on the
Closing Date, including the delivery of the closing documents specified in
Section 9.
(c) No injunction or restraining order shall have been issued by any
court of competent jurisdiction that enjoins consummation of the transactions
contemplated hereby.
7. CONDITIONS PRECEDENT TO SELLING SHAREHOLDER'S OBLIGATIONS. Each and
every obligation of the Selling Shareholder to be performed on the Closing Date
shall be subject to the satisfaction prior to or at the Closing on such date of
the following conditions:
(a) Each of the representations and warranties made by Purchaser in
this Agreement shall be true and correct in all material respects when made
shall be true and correct in all material respects at and as of the Closing Date
as though such representations and warranties were made or given on and as of
the Closing Date.
(b) Purchaser shall have in all material respects performed and
complied with all of its agreements and obligations under this Agreement which
are to be performed and complied with by it or prior to or on the Closing Date,
including the delivery of the closing documents specified in Section 10.
(c) No injunction or restraining order shall have been issued by a
court of competent jurisdiction that enjoins consummation of the transactions
contemplated hereby.
8. CLOSING. The closing of the purchase and sale of the Shares (the
"Closing") shall take place at 10:00 a.m. (Pacific Standard Time) on December 6,
1996, or at such other time and place as the parties hereto shall agree upon in
writing. The date on which the Closing occurs is referred to in this Agreement
as the "Closing Date".
9. DOCUMENTS TO BE DELIVERED BY THE SELLING SHAREHOLDER AT THE CLOSING.
At the Closing the Selling Shareholder shall deliver, or cause to be delivered,
to Purchaser the
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following documents, in each case duly executed or otherwise in proper form:
(a) Either (i) stock certificates, duly endorsed for transfer or with
duly executed stock powers attached thereto, representing the Shares, or (ii)
other customary evidence of transfer of the Shares reasonably satisfactory to
RGI and its legal counsel.
(b) A validly executed irrevocable proxy in the form attached hereto
as Exhibit A.
10. DOCUMENTS TO BE DELIVERED BY PURCHASER AT THE CLOSING. At the
Closing, Purchaser shall deliver to the Selling Shareholder a bank cashier's
check or wire transfer in payment of the aggregate Purchase Price for the Shares
as provided in Section 2 above.
11. PRICE PROTECTION.
(a) For purposes of this Section 11, the following definitions shall
apply:
(i) The term "Acquisition Transaction" shall mean:
(A) the acquisition by any Person of securities
representing at least fifty percent (50%) of the combined voting power of
the Company's then outstanding securities; or
(B) the consummation by any Person of (x) any
consolidation, merger or similar transaction involving the Company in which
the Company is not the continuing or surviving corporation or pursuant to
which shares of the Company's Common Stock are converted into cash or
securities, or (y) any purchase, lease, exchange or other acquisition (in
one transaction or a series of related transactions) of all, or
substantially all, of the assets of the Company.
(ii) The term "Person" shall mean any individual, firm,
partnership, corporation or other entity, including any successor (by
merger or otherwise) of such entity, or a group of any of the foregoing
acting in concert.
(b) In the event any Person (including, but not limited to, the
Purchaser) offers, directly or indirectly, an Acquisition Transaction within
four (4) months following the Closing, Purchaser shall pay to the Selling
Shareholder, on the thirty-third day following the consummation of such
Acquisition Transaction, by bank cashier's check or wire transfer to an account
designated in writing by at least forty-eight (48) hours prior to the time for
payment hereunder), a dollar amount (the "Excess Amount") equal to the product
of (i) the aggregate number of Shares and (ii) the excess, if any, of (x) the
fair market value of the cash and/or securities (as determined below) the
Selling Shareholder would have been
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<PAGE>
entitled to receive for each Share in the Acquisition Transaction had the
Closing under this Agreement not occurred and the Selling Shareholder
participated in the Acquisition Transaction over (y) the Purchase Price per
Share paid by Purchaser to the Selling Shareholder pursuant to this Agreement.
For purposes hereof, the fair market value of any securities shall be the
average closing price of such securities for the five days immediately preceding
the thirtieth day following the consummation of the Acquisition Transaction (as
appropriately adjusted as necessary to reflect a stock split, including the
Company's proposed one-for-twenty-five reverse stock split, stock dividend,
merger, consolidation, reclassification, recapitalization or other similar
transaction). In the event an Acquisition Transaction involves solely the
issuance of shares of voting stock or other securities to the holders of the
Company's Common Stock, the Purchaser may, in lieu of paying the Excess Amount
in cash, pay such amount in shares of the voting stock or other securities
delivered to the holders of the Company's Common Stock in the Acquisition
Transaction.
12. TERMINATION. This Agreement may be terminated by the Selling
Shareholder, on one hand, or the Purchaser, on the other hand, if the Closing
shall not have been consummated prior to 5:00 p.m. (Pacific Standard Time) on
December 6, 1996; PROVIDED, HOWEVER, that the obligations of each of the parties
hereto under Sections 14, 17 and 24 shall continue in full force and effect
notwithstanding any such termination, and that no party shall be relieved from
any liability of any kind or nature whatsoever resulting from or arising out of
a breach thereby of this Agreement occurring prior to such termination.
13. FURTHER ASSURANCES. From time to time prior to, at and after the
Closing, each party hereto shall execute all such instruments and take all such
actions as any other party hereto shall reasonably request in connection with
carrying out and effectuating the transactions contemplated by this Agreement.
14. NOTICES. Any notices required or allowed to be furnished pursuant to
the terms hereof shall be provided to the Selling Shareholder and Purchaser at
the addresses set forth with their signatures below. Notices hereunder shall be
in writing and may be hand delivered, mailed, delivered by overnight courier
service or, if facsimile numbers are provided below, transmitted by facsimile.
If mailed, such notices shall be sent by certified mail, postage prepaid, return
receipt requested. The date which is three (3) business days after the date of
mailing shall be deemed to be the date on which the notice was given. The
postmark affixed to such notice by the U.S. Post Office shall be conclusively
presumed to be the date of mailing for purposes of this Section. In the case of
notices given by hand delivery or overnight courier, such notices shall be
deemed given on the date of the actual receipt. If transmitted by facsimile,
such notices shall be deemed given on the date of the actual receipt of a
complete, legible facsimile transmission, except that if a facsimile
transmission is received after business hours or on a weekend or holiday, then
the notice shall be deemed given on the next business day following the receipt
of the facsimile transmission.
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<PAGE>
15. GOVERNING LAW. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Delaware without regard to the
conflicts of law provisions thereof.
16. ASSIGNMENT.
(a) The rights and obligations of a party hereunder may not be
assigned, transferred or encumbered without the prior written consent of the
other parties, except that Purchaser may assign its rights hereunder to an
affiliate thereof.
(b) This Agreement shall be binding upon, inure to the benefit of,
and be enforceable by the respective successors and permitted assigns of the
parties hereto. Nothing contained herein shall be deemed to confer upon any
other person any right or remedy under or by reason of this Agreement.
17. EXPENSES. Each of the parties hereto shall bear its own expenses and
the expenses of its counsel and other agents in connection with the transactions
contemplated hereby.
18. SATURDAYS, SUNDAYS AND LEGAL HOLIDAYS. If the time for performance of
any of the terms, conditions and provisions hereof shall fall on a Saturday,
Sunday or legal holiday, then the time of such performance shall be extended to
the next business day thereafter.
19. USAGE OF GENDER SPECIFIC TERMS. As used herein, each of the
masculine, feminine and neuter genders shall include the other genders, the
singular shall include the plural, and the plural shall include the singular,
wherever appropriate to the context.
20. ENTIRE AGREEMENT; AMENDMENT. This Agreement embodies the entire
agreement of the parties with respect to the transactions contemplated herein,
including the purchase and sale of Shares, and all prior understandings and
agreements of the parties relating thereto are merged herein. This Agreement
may not be modified in any manner whatsoever except by a written instrument
signed by the Selling Shareholder and the Purchaser.
21. WAIVER. No delay in exercising any right or remedy of any of the
parties hereunder shall constitute a waiver thereof, and no waiver by the
Selling Shareholder or Purchaser of the breach of any covenant of this Agreement
shall be construed as a waiver of any preceding or succeeding breach of the same
or any other covenant or condition of this Agreement.
22. HEADINGS. The headings in this Agreement are inserted for convenience
only
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and shall not constitute a part hereof.
23. SEVERABILITY. If any term, covenant or condition of this Agreement is
held to be invalid or unenforceable in any respect, such invalidity or
unenforceability shall not affect any other provision hereof and this Agreement
shall be construed as if such invalid or unenforceable provision has never been
contained herein.
24. PUBLIC ANNOUNCEMENTS. The parties shall mutually agree on the content
and timing of any public disclosure in relation to the transactions contemplated
hereby, subject to applicable requirements of law.
25. EXECUTION. This Agreement may be executed in separate counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Any party may execute this Agreement by
transmitting a copy of its signature by facsimile to the other parties. In such
event the signing party shall deliver an original of the signature page to each
of the other parties within one business day of signing, and failure to do so
deliver such originals shall result in the facsimile copy of that party's
signature being treated as an original.
IN WITNESS WHEREOF, the undersigned parties have executed this Agreement as
of the date and year first above written.
SELLING
SHAREHOLDER: SMC SOMERSET KENSINGTON, L.P.
By: Somerset Kensington Capital, Inc., its sole
general partner
By: ________________________________________
Charles F. Trapp, President
Address: _________________________
_________________________
_________________________
Facsimile No.:
PURCHASER: RGI HOLDINGS, INC.
By:_____________________________
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<PAGE>
Name:_______________________
Its:________________________
Address: 1420 Fifth Avenue
Suite 4200
Seattle, Washington 98101
Facsimile No.: (206) 448-0404
10
<PAGE>
EXHIBIT A
IRREVOCABLE PROXY
By its execution hereof, the undersigned hereby irrevocably constitutes and
appoints RGI Holdings, Inc., a Washington corporation ("RGI"), with full power
of substitution, as its true and lawful proxy and attorney-in-fact, with respect
to the 724,000 shares ( as appropriately adjusted as necessary to reflect a
stock split, stock dividend, merger, consolidation, reclassification,
recapitalization or other similar transaction, the "Shares") of common stock,
par value $.01 per share ("Common Stock"), of Banyan Mortgage Investment Fund, a
Delaware corporation (the "Company"), beneficially owned by him as of the date
hereof, to: (i) vote at any annual or special meeting of the stockholders of
the Company, to take any action, including without limitation, adopting a
proposed merger of RGI U.S. Holdings, Inc. with and into the Company, amending
the Company's certificate of incorporation to reclassify, combine and convert
each twenty-five issued and outstanding shares of the Company's Common Stock
into one issued and outstanding share, to adopt an Amended and Restated
Certificate of Incorporation of the Company that, among other things, changes
Banyan's name to "Legend Properties, Inc.", and electing directors; (ii) to
exercise written consent in lieu of voting with respect to the matters set forth
in the preceding clause (i); and (iii) to execute, acknowledge, swear to and
file in the name, place and stead of the undersigned any proxy, consent,
approval, or other documents to be executed by the stockholders in connection
with the items set forth in the preceding clauses (i) and (ii). The proxy
granted hereby is irrevocable and is given in connection with the purchase by
RGI of the Shares pursuant to a Common Stock Purchase and Sale Agreement dated
December 5, 1996 (the "Purchase Agreement"), by and among RGI and SMC Somerset
Kensington Partners, L.P.; PROVIDED, HOWEVER, that this Irrevocable Proxy shall
automatically terminate and be of no further force or effect with respect to any
Shares as of June 30, 1997.
IN WITNESS WHEREOF, the undersigned has executed this Irrevocable Proxy as
of the 6th day of December, 1996.
SMC SOMERSET KENSINGTON PARTNERS, L.P.
By: Somerset Kensington Capital, Inc., its sole
general partner
By:_____________________________________
Charles F. Trapp, President
<PAGE>
Address: _____________________
_____________________
_____________________
Facsimile No.:___________________
<PAGE>
COMMON STOCK PURCHASE AND SALE AGREEMENT
This Common Stock Purchase and Sale Agreement (the "Agreement"), dated
December 5, 1996, by and among RGI Holdings, Inc., a Washington corporation
("RGI"), and John Patrick Kneafsey (the "Selling Shareholder").
WHEREAS, the Common Stock, par value $0.01 per share ("Common Stock"), of
Banyan Mortgage Investment Fund, a Delaware corporation (the "Company"), is
publicly traded on the New York Stock Exchange under the symbol "VMG";
WHEREAS, the Selling Shareholder owns and desires to sell 574,000 shares of
the Company's Common Stock (as appropriately adjusted as necessary to reflect a
stock split (including the proposed one-for-twenty-five reverse stock split),
stock dividend, merger, consolidation, reclassification, recapitalization or
other similar transaction, the "Shares"), which Shares constitute approximately
1.2% of the total issued and outstanding shares of Common Stock; and
WHEREAS, Purchaser desires to purchase the Shares from the Selling
Shareholder, and the Selling Shareholder desires to sell the Shares to
Purchaser, upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants, agreements and conditions hereinafter
set forth, and intending to be legally bound hereby, the parties hereto agree as
follows:
1. PURCHASE AND SALE OF SHARES. Subject to the terms and conditions of
this Agreement, on the Closing Date (as hereinafter defined) the Selling
Shareholder shall sell the Shares to Purchaser, and Purchaser shall purchase the
Shares from the Selling Shareholder.
2. PURCHASE PRICE.
(a) The purchase price (the "Purchase Price") payable per Share to be
purchased by Purchaser hereunder shall be, as of any date, $0.56 (appropriately
adjusted as necessary to reflect a stock split (including the proposed one-for-
twenty-five reverse stock split), stock dividend, merger, consolidation,
reclassification, recapitalization or other similar transaction with respect to
the Common Stock).
(b) The aggregate Purchase Price payable by Purchaser to the Selling
Shareholder pursuant to this Section 2 shall be paid by bank cashier's check or
wire transfer to an account designated in writing by the Selling Shareholder
prior to the Closing.
<PAGE>
3. REPRESENTATIONS AND WARRANTIES OF SELLING SHAREHOLDER. The Selling
Shareholder makes the following representations and warranties to Purchaser,
each of which is true and correct on the date hereof, shall remain true and
correct to and as of the Closing (as hereinafter defined) and shall survive the
Closing:
(a) The Selling Shareholder has all requisite power and authority to
enter into this Agreement and the other documents and instruments to be executed
and delivered by the Selling Shareholder and to carry out the transactions
contemplated hereby and thereby. This Agreement has been duly and validly
executed and delivered by the Selling Shareholder and constitutes, and when
executed and delivered, the other documents and instruments to be executed and
delivered by the Selling Shareholder pursuant hereto will constitute, valid and
binding agreements of the Selling Shareholder enforceable in accordance with
their respective terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforceability of creditors' rights generally and by general equitable
principles. Neither the execution, delivery and performance of this Agreement
nor the consummation of the transactions contemplated herein will, with or
without the giving of notice of the lapse of time, or both (i) conflict with or
result in any violation of or default under (a) any note, bond, mortgage,
indenture, lease, agreement or other material instrument, permit, concession,
grant, franchise or license to which the Selling Shareholder is a party or by
which any of his properties or assets may be bound or (b) any judgment, order,
decree, injunction, statute, rule, permit, license or regulation applicable to
the Selling Shareholder or any of his properties, or (ii) result in the
acceleration of any material obligation or the creation of any material lien,
charge or encumbrance upon the Selling Shareholder. No authorization, consent
or approval of, or declaration of, filing with or notice to any governmental
body or authority is necessary for the execution, delivery and performance of
this Agreement by the Selling Shareholder.
(b) The Selling Shareholder is the owner of the Shares, free and
clear of all liens, claims, charges and other encumbrances, and the shares are
held by Prudential Securities, as custodian, through an account on the book
entry system maintained by the Depository Trust Corporation. Upon the Closing,
the Selling Shareholder shall convey to Purchaser or its permitted assignee good
and marketable title to the Shares, free and clear of all liens, claims, charges
and other encumbrances. The Selling Shareholder has no right, directly or
indirectly, to purchase and has no interest in any shares of Common Stock other
than the Shares.
(c) The Selling Shareholder has not retained, employed or used any
broker or finder in connection with the transactions provided for herein or in
connection with the negotiation thereof.
(d) The Selling Shareholder has not offered, directly or indirectly,
any
2
<PAGE>
Shares beneficially owned thereby for sale, nor solicited any offer to buy any
such Shares, by means of any general advertising or by any other form of general
solicitation. The Selling Shareholder has not offered, directly or indirectly,
any Shares beneficially owned thereby for sale, nor solicited any offer to buy
any such Shares, in any other manner that would require the sale of the Shares
to be subject to the registration requirements of the Securities Act of 1933, as
amended. The Selling Shareholder confirms that he did not acquire any Shares
with a view to, or for, resale in connection with any distribution thereof
within the meaning of the Securities Act of 1933, as amended, which would not be
exempt from the registration requirements of such Act.
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser makes the
following representations and warranties to the Selling Shareholder, each of
which is true and correct on the date hereof, shall remain true and correct to
and as of the Closing, and shall survive the Closing:
(a) Purchaser is a corporation duly organized, validly existing and
in good standing under the laws of the State of Washington. Purchaser has all
requisite power to enter into this Agreement and the other documents pursuant
hereto and to carry out the transactions contemplated hereby and thereby.
(b) The execution and delivery of this Agreement and the other
documents and instruments to be executed and delivered by Purchaser pursuant
hereto and the consummation of the transactions contemplated hereby and thereby
have been duly authorized by the Board of Directors of Purchaser. No other
corporate act or proceeding on the part of Purchaser or its shareholders is
necessary to authorize this Agreement or the other documents and instruments to
be executed and delivered by Purchaser pursuant hereto or the consummation of
the transactions contemplated hereby and thereby. This Agreement constitutes,
and when executed and delivered, the other documents and instruments to be
executed and delivered by Purchaser pursuant hereto will constitute, valid and
binding agreements of Purchaser, enforceable in accordance with their respective
terms, except as such may be limited by bankruptcy, insolvency, reorganization
or other laws affecting creditors' rights generally, and by general equitable
principles.
(c) Neither the execution, delivery and performance of this Agreement
nor the consummation of the transactions contemplated herein will, with or
without the giving of notice or the lapse of time, or both, (i) conflict with or
result in any violation of or default under (a) any provision of the Articles of
Incorporation or the bylaws of Purchaser, each as amended and/or restated to
date, (b) any note, bond, mortgage, indenture, lease, agreement or other
material instrument, permit, concession, grant, franchise or license to which
Purchaser is a party or by which any of its properties or assets may be bound or
(c) any judgment, order, decree, injunction, statute, rule, permit, license or
regulation applicable to the Purchaser or any of its properties, or (ii) which
result in the acceleration of any
3
<PAGE>
material obligation or the creation of any material lien, charge or encumbrance
upon any of the assets of Purchaser. No authorization, consent or approval of,
or declaration of, filing with or notice to any governmental body or authority
is necessary for the execution, delivery and performance of this Agreement by
Purchaser.
(d) Neither Purchaser nor any of its directors, officers, employees
or agents has retained, employed or used any broker or finder in connection with
the transaction provided for herein or in connection with the negotiation
thereof.
5. COVENANTS OF THE SELLING SHAREHOLDER.
(a) From the date hereof until the Closing, the Selling Shareholder
covenants and agrees that he will not, without the prior written consent of RGI,
directly or indirectly (i) transfer any of the Shares, except to Purchaser
pursuant hereto, or (ii) exercise any voting rights of the Shares or grant any
proxies (except as set forth herein) or enter into any voting trust or other
agreement or arrangement with respect to the voting of any Shares.
(b) From the date hereof until the first to occur of (i) the
consummation of the merger of RGI U.S. Holdings, Inc., a Washington corporation,
with and into the Company or (ii) the third business day following the failure
of the shareholders of the Company to approve such a merger at a meeting
thereof, duly called and held, at which a proposal to approve such a merger is
acted upon, the Selling Shareholder shall not, directly or indirectly, acquire
or enter into any contract to acquire, any additional shares of Common Stock or
any voting rights with respect to any additional shares of Common Stock.
6. CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS. Each and every
obligation of Purchaser to be performed on the Closing Date (as hereinafter
defined) shall be subject to the satisfaction prior to or at the Closing of each
of the following conditions:
(a) Each of the representations and warranties made by the Selling
Shareholder in this Agreement shall be true and correct in all material respects
when made and shall be true and correct in all material respects at and as of
the Closing Date as though such representations and warranties were made or
given on and as of such Closing Date.
(b) The Selling Shareholder shall have in all material respects
performed and complied with all of his agreements and obligations under this
Agreement which are to be performed or complied with by it prior to or on the
Closing Date, including the delivery of the closing documents specified in
Section 9.
(c) No injunction or restraining order shall have been issued by any
court of competent jurisdiction that enjoins consummation of the transactions
contemplated hereby.
4
<PAGE>
7. CONDITIONS PRECEDENT TO SELLING SHAREHOLDER'S OBLIGATIONS. Each and
every obligation of the Selling Shareholder to be performed on the Closing Date
shall be subject to the satisfaction prior to or at the Closing on such date of
the following conditions:
(a) Each of the representations and warranties made by Purchaser in
this Agreement shall be true and correct in all material respects when made
shall be true and correct in all material respects at and as of the Closing Date
as though such representations and warranties were made or given on and as of
the Closing Date.
(b) Purchaser shall have in all material respects performed and
complied with all of its agreements and obligations under this Agreement which
are to be performed and complied with by it or prior to or on the Closing Date,
including the delivery of the closing documents specified in Section 10.
(c) No injunction or restraining order shall have been issued by a
court of competent jurisdiction that enjoins consummation of the transactions
contemplated hereby.
8. CLOSING. The closing of the purchase and sale of the Shares (the
"Closing") shall take place at 10:00 a.m. (Pacific Standard Time) on December 6,
1996, or at such other time and place as the parties hereto shall agree upon in
writing. The date on which the Closing occurs is referred to in this Agreement
as the "Closing Date".
9. DOCUMENTS TO BE DELIVERED BY THE SELLING SHAREHOLDER AT THE CLOSING.
At the Closing the Selling Shareholder shall deliver, or cause to be delivered,
to Purchaser the following documents, in each case duly executed or otherwise in
proper form:
(a) Either (i) stock certificates, duly endorsed for transfer or with
duly executed stock powers attached thereto, representing the Shares, or (ii)
other customary evidence of transfer of the Shares reasonably satisfactory to
RGI and its legal counsel.
(b) A validly executed irrevocable proxy in the form attached hereto
as Exhibit A.
10. DOCUMENTS TO BE DELIVERED BY PURCHASER AT THE CLOSING. At the
Closing, Purchaser shall deliver to the Selling Shareholder a bank cashier's
check or wire transfer in payment of the aggregate Purchase Price for the Shares
as provided in Section 2 above.
11. PRICE PROTECTION.
(a) For purposes of this Section 11, the following definitions shall
apply:
(i) The term "Acquisition Transaction" shall mean:
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<PAGE>
(A) the acquisition by any Person of securities
representing at least fifty percent (50%) of the combined voting power of
the Company's then outstanding securities; or
(B) the consummation by any Person of (x) any
consolidation, merger or similar transaction involving the Company in which
the Company is not the continuing or surviving corporation or pursuant to
which shares of the Company's Common Stock are converted into cash or
securities, or (y) any purchase, lease, exchange or other acquisition (in
one transaction or a series of related transactions) of all, or
substantially all, of the assets of the Company.
(ii) The term "Person" shall mean any individual, firm,
partnership, corporation or other entity, including any successor (by
merger or otherwise) of such entity, or a group of any of the foregoing
acting in concert.
(b) In the event any Person (including, but not limited to, the
Purchaser) offers, directly or indirectly, an Acquisition Transaction within
four (4) months following the Closing, Purchaser shall pay to the Selling
Shareholder, on the thirty-third day following the consummation of such
Acquisition Transaction, by bank cashier's check or wire transfer to an account
designated in writing by at least forty-eight (48) hours prior to the time for
payment hereunder), a dollar amount (the "Excess Amount") equal to the product
of (i) the aggregate number of Shares and (ii) the excess, if any, of (x) the
fair market value of the cash and/or securities (as determined below) the
Selling Shareholder would have been entitled to receive for each Share in the
Acquisition Transaction had the Closing under this Agreement not occurred and
the Selling Shareholder participated in the Acquisition Transaction over (y) the
Purchase Price per Share paid by Purchaser to the Selling Shareholder pursuant
to this Agreement. For purposes hereof, the fair market value of any securities
shall be the average closing price of such securities for the five days
immediately preceding the thirtieth day following the consummation of the
Acquisition Transaction (as appropriately adjusted as necessary to reflect a
stock split, including the Company's proposed one-for-twenty-five reverse stock
split, stock dividend, merger, consolidation, reclassification, recapitalization
or other similar transaction). In the event an Acquisition Transaction involves
solely the issuance of shares of voting stock or other securities to the holders
of the Company's Common Stock, the Purchaser may, in lieu of paying the Excess
Amount in cash, pay such amount in shares of the voting stock or other
securities delivered to the holders of the Company's Common Stock in the
Acquisition Transaction.
12. TERMINATION. This Agreement may be terminated by the Selling
Shareholder, on one hand, or the Purchaser, on the other hand, if the Closing
shall not have been consummated prior to 5:00 p.m. (Pacific Standard Time) on
December 6, 1996; PROVIDED, HOWEVER, that the obligations of each of the parties
hereto under Sections 14, 17 and 24 shall continue in full force and effect
notwithstanding any such termination, and that no party
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<PAGE>
shall be relieved from any liability of any kind or nature whatsoever resulting
from or arising out of a breach thereby of this Agreement occurring prior to
such termination.
13. FURTHER ASSURANCES. From time to time prior to, at and after the
Closing, each party hereto shall execute all such instruments and take all such
actions as any other party hereto shall reasonably request in connection with
carrying out and effectuating the transactions contemplated by this Agreement.
14. NOTICES. Any notices required or allowed to be furnished pursuant to
the terms hereof shall be provided to the Selling Shareholder and Purchaser at
the addresses set forth with their signatures below. Notices hereunder shall be
in writing and may be hand delivered, mailed, delivered by overnight courier
service or, if facsimile numbers are provided below, transmitted by facsimile.
If mailed, such notices shall be sent by certified mail, postage prepaid, return
receipt requested. The date which is three (3) business days after the date of
mailing shall be deemed to be the date on which the notice was given. The
postmark affixed to such notice by the U.S. Post Office shall be conclusively
presumed to be the date of mailing for purposes of this Section. In he case of
notices given by hand delivery or overnight courier, such notices shall be
deemed given on the date of the actual receipt. If transmitted by facsimile,
such notices shall be deemed given on the date of the actual receipt of a
complete, legible facsimile transmission, except that if a facsimile
transmission is received after business hours or on a weekend or holiday, then
the notice shall be deemed given on the next business day following the receipt
of the facsimile transmission.
15. GOVERNING LAW. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Delaware without regard to the
conflicts of law provisions thereof.
16. ASSIGNMENT.
(a) The rights and obligations of a party hereunder may not be
assigned, transferred or encumbered without the prior written consent of the
other parties, except that Purchaser may assign its rights hereunder to an
affiliate thereof.
(b) This Agreement shall be binding upon, inure to the benefit of,
and be enforceable by the respective successors and permitted assigns of the
parties hereto. Nothing contained herein shall be deemed to confer upon any
other person any right or remedy under or by reason of this Agreement.
17. EXPENSES. Each of the parties hereto shall bear its own expenses and
the expenses of its counsel and other agents in connection with the transactions
contemplated hereby.
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<PAGE>
18. SATURDAYS, SUNDAYS AND LEGAL HOLIDAYS. If the time for performance of
any of the terms, conditions and provisions hereof shall fall on a Saturday,
Sunday or legal holiday, then the time of such performance shall be extended to
the next business day thereafter.
19. USAGE OF GENDER SPECIFIC TERMS. As used herein, each of the
masculine, feminine and neuter genders shall include the other genders, the
singular shall include the plural, and the plural shall include the singular,
wherever appropriate to the context.
20. ENTIRE AGREEMENT; AMENDMENT. This Agreement embodies the entire
agreement of the parties with respect to the transactions contemplated herein,
including the purchase and sale of Shares, and all prior understandings and
agreements of the parties relating thereto are merged herein. This Agreement
may not be modified in any manner whatsoever except by a written instrument
signed by the Selling Shareholder and the Purchaser.
21. WAIVER. No delay in exercising any right or remedy of any of the
parties hereunder shall constitute a waiver thereof, and no waiver by the
Selling Shareholder or Purchaser of the breach of any covenant of this Agreement
shall be construed as a waiver of any preceding or succeeding breach of the same
or any other covenant or condition of this Agreement.
22. HEADINGS. The headings in this Agreement are inserted for convenience
only and shall not constitute a part hereof.
23. SEVERABILITY. If any term, covenant or condition of this Agreement is
held to be invalid or unenforceable in any respect, such invalidity or
unenforceability shall not affect any other provision hereof and this Agreement
shall be construed as if such invalid or unenforceable provision has never been
contained herein.
24. PUBLIC ANNOUNCEMENTS. The parties shall mutually agree on the content
and timing of any public disclosure in relation to the transactions contemplated
hereby, subject to applicable requirements of law.
25. EXECUTION. This Agreement may be executed in separate counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Any party may execute this Agreement by
transmitting a copy of its signature by facsimile to the other parties. In such
event the signing party shall deliver an original of the signature page to each
of the other parties within one business day of signing, and failure to do so
deliver such originals shall result in the facsimile copy of that party's
signature being treated as an original.
8
<PAGE>
IN WITNESS WHEREOF, the undersigned parties have executed this Agreement as
of the date and year first above written.
SELLING
SHAREHOLDER:
________________________________________
John Patrick Kneafsey
Address:_________________________
_________________________
Facsimile No.:___________________
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<PAGE>
PURCHASER: RGI HOLDINGS, INC.
By:_____________________________
Name:_______________________
Its:________________________
Address: 1420 Fifth Avenue
Suite 4200
Seattle, Washington 98101
Facsimile No.: (206) 448-0404
10
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EXHIBIT A
IRREVOCABLE PROXY
By his execution hereof, the undersigned hereby irrevocably constitutes and
appoints RGI Holdings, Inc., a Washington corporation ("RGI"), with full power
of substitution, as his true and lawful proxy and attorney-in-fact, with respect
to the 574,000 shares (as appropriately adjusted as necessary to reflect a
stock split, stock dividend, merger, consolidation, reclassification,
recapitalization or other similar transaction, the "Shares") of common stock,
par value $.01 per share ("Common Stock"), of Banyan Mortgage Investment Fund, a
Delaware corporation (the "Company"), beneficially owned by him as of the date
hereof, to: (i) vote at any annual or special meeting of the stockholders of
the Company, to take any action, including without limitation, adopting a
proposed merger of RGI U.S. Holdings, Inc. with and into the Company, amending
the Company's certificate of incorporation to reclassify, combine and convert
each twenty-five issued and outstanding shares of the Company's Common Stock
into one issued and outstanding share, to adopt an Amended and Restated
Certificate of Incorporation of the Company that, among other things, changes
Banyan's name to "Legend Properties, Inc.", and electing directors; (ii) to
exercise written consent in lieu of voting with respect to the matters set forth
in the preceding clause (i); and (iii) to execute, acknowledge, swear to and
file in the name, place and stead of the undersigned any proxy, consent,
approval, or other documents to be executed by the stockholders in connection
with the items set forth in the preceding clauses (i) and (ii). The proxy
granted hereby is irrevocable and is given in connection with the purchase by
RGI of the Shares pursuant to a Common Stock Purchase and Sale Agreement dated
December 5, 1996 (the "Purchase Agreement"), by and among RGI and John Patrick
Kneafsey; PROVIDED, HOWEVER, that this Irrevocable Proxy shall automatically
terminate and be of no further force or effect with respect to any Shares as of
June 30, 1997.
IN WITNESS WHEREOF, the undersigned has executed this Irrevocable Proxy as
of the 6th day of December, 1996.
________________________________________
John Patrick Kneafsey
Address: ______________________
______________________
Facsimile No.:____________________
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COMMON STOCK PURCHASE AND SALE AGREEMENT
This Common Stock Purchase and Sale Agreement (the "Agreement"), dated
December 3, 1996, by and among RGI Holdings, Inc., a Washington corporation
("RGI"); and Gabriel Capital, L.P., a Delaware limited partnership ("Gabriel"),
Ariel Fund Limited, a Cayman Islands corporation ("AFL") and Ariel Management
Corp., a Delaware corporation ("AMC" and, collectively with Gabriel, AFL and
AMC, the "Selling Shareholders").
WHEREAS, the Common Stock, par value $0.01 per share ("Common Stock"), of
Banyan Mortgage Investment Fund, a Delaware corporation (the "Company"), is
publicly traded on the New York Stock Exchange under the symbol "VMG";
WHEREAS, the Selling Shareholders collectively beneficially own and desire
to sell 3,561,900 shares of the Company's Common Stock as more particularly set
forth on Schedule I attached hereto (as appropriately adjusted as necessary to
reflect a stock split (including the proposed one-for-twenty-five reverse stock
split), stock dividend, merger, consolidation, reclassification,
recapitalization or other similar transaction, the "Shares"), which Shares
constitute approximately 7.5% of the total issued and outstanding shares of
Common Stock; and
WHEREAS, Purchaser desires to purchase the Shares from the Selling
Shareholders, and the Selling Shareholders desire to sell the Shares to
Purchaser, upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants, agreements and conditions hereinafter
set forth, and intending to be legally bound hereby, the parties hereto agree as
follows:
1. PURCHASE AND SALE OF SHARES. Subject to the terms and conditions of
this Agreement, on the Closing Date (as hereinafter defined) the Selling
Shareholders shall sell to Purchaser, and Purchaser shall purchase from the
Selling Shareholders, the Shares set forth on Schedule I.
2. PURCHASE PRICE.
(a) The purchase price (the "Purchase Price") payable per Share to be
purchased by Purchaser hereunder shall be $0.60 (appropriately adjusted as
necessary to reflect a stock split (including the proposed one-for-twenty-five
reverse stock split), stock dividend, merger, consolidation, reclassification,
recapitalization or other similar transaction with respect to the Common Stock).
(b) All amounts payable by Purchaser to the Selling Shareholders
pursuant to this Section 2 shall be paid by wire transfer of immediately
available funds in accordance with wire transfer instructions provided by
Gabriel or as otherwise agreed between the parties hereto.
3. REPRESENTATIONS AND WARRANTIES OF SELLING SHAREHOLDERS. The Selling
Shareholders, severally and not jointly, make the following representations and
warranties to Purchaser (each on behalf of and with respect to itself only),
each of which is true and correct on the date hereof, shall remain true and
correct to and as of the Closing (as hereinafter defined) and shall survive the
Closing:
(a) Each of the Selling Shareholders is duly organized, validly
existing and in good standing under the laws of its state or other jurisdiction
of organization or incorporation. Each Selling Shareholder has all requisite
power and authority to enter into this Agreement and the other documents
<PAGE>
and instruments to be executed and delivered by the Selling Shareholders and to
carry out the transactions contemplated hereby and thereby. All entity actions
and proceedings necessary to be taken by or on the part of any of the Selling
Shareholders in connection with the transactions contemplated by this Agreement
have been duly and validly taken.
(b) The execution and delivery of this Agreement and the other
documents and instruments to be executed and delivered by the Selling
Shareholders and the consummation of the transactions contemplated hereby and
thereby, have been duly authorized by all requisite action.
(c) No other act or proceeding on behalf of any Selling Shareholder
or any general partner is necessary to authorize this Agreement or the other
documents and instruments to be executed and delivered by the Selling
Shareholders pursuant hereto or the consummation of the transactions
contemplated hereby and thereby. This Agreement has been duly and validly
executed and delivered by the Selling Shareholders and constitutes, and when
executed and delivered, the other documents and instruments to be executed and
delivered by the Selling Shareholders pursuant hereto will constitute, valid and
binding agreements of the Selling Shareholders enforceable in accordance with
their respective terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforceability of creditors' rights generally and by general equitable
principles. Neither the execution, delivery and performance of this Agreement
nor the consummation of the transactions contemplated herein will, with or
without the giving of notice of the lapse of time, or both (i) conflict with or
result in any violation of or default under (a) any provision of the articles of
incorporation, partnership agreement, bylaws, trust agreement or other governing
document, of any Selling Shareholder, (b) any note, bond, mortgage, indenture,
lease, agreement or other material instrument, permit, concession, grant,
franchise or license to which any Selling Shareholder is a party or by which any
of their properties or assets may be bound or (c) any judgment, order, decree,
injunction, statute, rule, permit, license or regulation applicable to any
Selling Shareholder or any of its properties, or (ii) result in the acceleration
of any material obligation or the creation of any material lien, charge or
encumbrance upon any Selling Shareholder. No authorization, consent or approval
of, or declaration of, filing with or notice to any governmental body or
authority is necessary for the execution, delivery and performance of this
Agreement by any Selling Shareholder.
(d) The Selling Shareholders are the beneficial owners of the Shares
in the amounts set forth in Schedule I hereto, free and clear of all liens,
claims, charges and other encumbrances, and the Shares are held by the nominee
of Morgan, Stanley, as custodian, through an account on the book entry system
maintained by the Depositary Trust Corporation. Upon the Closing, the Selling
Shareholders shall cause to be conveyed to Purchaser or its permitted assignee
good and marketable title to the Shares, free and clear of all liens, claims,
charges and other encumbrances (other than those created by Purchaser or its
permitted assignee). None of the Selling Shareholders has any right, directly
or indirectly, to purchase or has any interest in any shares of Common Stock
other than the Shares.
(e) Neither the Selling Shareholders nor any directors, partners,
offices, employees or agents thereof has retained, employed or used any broker
or finder in connection with the transactions provided for herein or in
connection with the negotiation thereof.
(f) None of the Selling Shareholders has offered, directly or
indirectly, any Shares beneficially owned thereby for sale, nor solicited any
offer to buy any such Shares, by means of any general advertising or by any
other form of general solicitation. None of the Selling Shareholders has
offered, directly or indirectly, any Shares beneficially owned thereby for sale,
nor solicited any offer to
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buy any such Shares, in any other manner that would require the sale of the
Shares to be subject to the registration requirements of the Securities Act of
1933, as amended. Each of the Selling Shareholders confirms that it did not
acquire any Shares with a view to, or for, resale in connection with any
distribution thereof within the meaning of the Securities Act of 1933, as
amended, which would not be exempt from the registration requirements of such
Act.
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser makes the
following representations and warranties to the Selling Shareholders, each of
which is true and correct on the date hereof, shall remain true and correct to
and as of the Closing, and shall survive the Closing:
(a) Purchaser is a corporation duly organized, validly existing and
in good standing under the laws of the State of Washington. Purchaser has all
requisite power to enter into this Agreement and the other documents pursuant
hereto and to carry out the transactions contemplated hereby and thereby.
(b) The execution and delivery of this Agreement and the other
documents and instruments to be executed and delivered by Purchaser pursuant
hereto and the consummation of the transactions contemplated hereby and thereby
have been duly authorized by the Board of Directors of Purchaser. No other
corporate act or proceeding on the part of Purchaser or its shareholders is
necessary to authorize this Agreement or the other documents and instruments to
be executed and delivered by Purchaser pursuant hereto or the consummation of
the transactions contemplated hereby and thereby. This Agreement constitutes,
and when executed and delivered, the other documents and instruments to be
executed and delivered by Purchaser pursuant hereto will constitute, valid and
binding agreements of Purchaser, enforceable in accordance with their respective
terms, except as such may be limited by bankruptcy, insolvency, reorganization
or other laws affecting creditors' rights generally, and by general equitable
principles.
(c) Neither the execution, delivery and performance of this Agreement
nor the consummation of the transactions contemplated herein will, with or
without the giving of notice or the lapse of time, or both, (i) conflict with or
result in any violation of or default under (a) any provision of the Articles of
Incorporation or the bylaws of Purchaser, each as amended and/or restated to
date, (b) any note, bond, mortgage, indenture, lease, agreement or other
material instrument, permit, concession, grant, franchise or license to which
Purchaser is a party or by which any of its properties or assets may be bound or
(c) any judgment, order, decree, injunction, statute, rule, permit, license or
regulation applicable to the Purchaser or any of its properties, or (ii) which
result in the acceleration of any material obligation or the creation of any
material lien, charge or encumbrance upon any of the assets of Purchaser. No
authorization, consent or approval of, or declaration of, filing with or notice
to any governmental body or authority is necessary for the execution, delivery
and performance of this Agreement by Purchaser.
(d) Neither Purchaser nor any of its directors, officers, employees
or agents has retained, employed or used any broker or finder in connection with
the transaction provided for herein or in connection with the negotiation
thereof.
5. COVENANTS OF THE SELLING SHAREHOLDERS.
(a) From the date hereof until the Closing, each of the Selling
Shareholders covenants and agrees that it will not, without the prior written
consent of RGI, directly or indirectly (i) transfer any of the Shares, except to
Purchaser pursuant hereto, or (ii) exercise any voting rights of the
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Shares or grant any proxies (except as set forth herein) or enter into any
voting trust or other agreement or arrangement with respect to the voting of any
Shares.
(b) From the date hereof until the first to occur of (i) the
consummation of the merger of RGI U.S. Holdings, Inc., a Washington corporation,
with and into the Company, (ii) the third business day following the failure of
the shareholders of the Company to approve such a merger at a meeting thereof,
duly called and held, at which a proposal to approve such a merger is acted
upon, or (iii) termination of the Agreement and Plan of Merger, dated as of
April 12, 1996, as amended and restated as of May 20, 1996, by and among RGI
U.S. Holdings, Inc., RGI and the Company, each of the Selling Shareholders
covenants and agrees (on behalf of and with respect to itself only) that it will
not, directly or indirectly, acquire or enter into any contract to acquire, any
shares of Common Stock or any voting rights with respect to any shares of Common
Stock.
6. CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS. Each and every
obligation of Purchaser to be performed on the Closing Date (as hereinafter
defined) shall be subject to the satisfaction prior to or at the Closing of each
of the following conditions:
(a) Each of the representations and warranties made by the Selling
Shareholders in this Agreement shall be true and correct in all material
respects when made and shall be true and correct in all material respects at and
as of the Closing Date as though such representations and warranties were made
or given on and as of such Closing Date.
(b) Each of the Selling Shareholders shall have in all material
respects performed and complied with all of its agreements and obligations under
this Agreement which are to be performed or complied with by it prior to or on
the Closing Date, including the delivery of the closing documents specified in
Section 9.
(c) No injunction or restraining order shall have been issued by any
court of competent jurisdiction that enjoins consummation of the transactions
contemplated hereby.
7. CONDITIONS PRECEDENT TO SELLING SHAREHOLDERS' OBLIGATIONS. Each and
every obligation of the Selling Shareholders to be performed on the Closing Date
shall be subject to the satisfaction prior to or at the Closing on such date of
the following conditions:
(a) Each of the representations and warranties made by Purchaser in
this Agreement shall be true and correct in all material respects when made and
shall be true and correct in all material respects at and as of the Closing Date
as though such representations and warranties were made or given on and as of
the Closing Date.
(b) Purchaser shall have in all material respects performed and
complied with all of its agreements and obligations under this Agreement which
are to be performed and complied with by it or prior to or on the Closing Date,
including the delivery of the closing documents specified in Section 10.
(c) No injunction or restraining order shall have been issued by a
court of competent jurisdiction that enjoins consummation of the transactions
contemplated hereby.
8. CLOSING. The closing of the purchase and sale of the Shares (the
"Closing") shall take place on December 6, 1996, or at such other time and place
as the parties hereto shall agree upon in
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writing. The date on which the Closing occurs is referred to in this Agreement
as the "Closing Date".
9. DOCUMENTS TO BE DELIVERED BY THE SELLING SHAREHOLDERS AT THE CLOSING.
At the Closing the Selling Shareholders shall deliver, or cause to be delivered,
to Purchaser the following documents, in each case duly executed or otherwise in
proper form:
(a) Either (i) stock certificates, duly endorsed for transfer or with
duly executed stock powers attached thereto, representing the Shares, or (ii)
other customary evidence of transfer of the Shares in a broker trade on
customary terms.
(b) A validly executed irrevocable proxy in the form attached hereto
as Exhibit A.
10. DOCUMENTS TO BE DELIVERED BY PURCHASER AT THE CLOSING. At the
Closing, Purchaser shall deliver to Gabriel, on behalf of the Selling
Shareholders, a wire transfer in payment of the aggregate Purchase Price for the
Shares as provided in Section 2 above.
11. TERMINATION. This Agreement may be terminated by the Selling
Shareholders, on one hand, or the Purchaser, on the other hand, if the Closing
shall not have been consummated prior to 4:00 p.m. (Eastern Standard Time) on
December 6, 1996; PROVIDED, HOWEVER, that the obligations of each of the parties
hereto under Sections 13, 16 and 17 shall continue in full force and effect
notwithstanding any such termination, and that no party shall be relieved from
any liability of any kind or nature whatsoever resulting from or arising out of
a breach thereby of this Agreement occurring prior to such termination.
12. FURTHER ASSURANCES. From time to time prior to, at and after the
Closing, each party hereto shall execute all such instruments and take all such
actions as any other party hereto shall reasonably request in connection with
carrying out and effectuating the transactions contemplated by this Agreement.
13. NOTICES. Any notices required or allowed to be furnished pursuant to
the terms hereof shall be provided to the Selling Shareholders and Purchaser at
the addresses se forth with their signatures below. Notices hereunder shall be
in writing and may be hand delivered, mailed, delivered by overnight courier
service or, if facsimile numbers are provided below, transmitted by facsimile.
If mailed, such notices shall be sent by certified mail, postage prepaid, return
receipt requested. The date which is three (3) business days after the date of
mailing shall be deemed to be the date on which the notice was given. The
postmark affixed to such notice by the U.S. Post Office shall be conclusively
presumed to be the date of mailing for purposes of this Section. In he case of
notices given by hand delivery or overnight courier, such notices shall be
deemed given on the date of the actual receipt. If transmitted by facsimile,
such notices shall be deemed given on the date of the actual receipt of a
complete, legible facsimile transmission, except that if a facsimile
transmission is received after business hours or on a weekend or holiday, then
the notice shall be deemed given on the next business day following the receipt
of the facsimile transmission.
14. GOVERNING LAW. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Delaware without regard to the
conflicts of law provisions thereof.
15. ASSIGNMENT.
(a) The rights and obligations of a party hereunder may not be
assigned,
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transferred or encumbered without the prior written consent of the other
parties.
(b) This Agreement shall be binding upon, inure to the benefit of,
and be enforceable by the respective successors and permitted assigns of the
parties hereto. Nothing contained herein shall be deemed to confer upon any
other person any right or remedy under or by reason of this Agreement.
16. EXPENSES. Except as hereinafter set forth, each of the parties hereto
shall bear its own expenses and the expenses of its counsel and other agents in
connection with the transactions contemplated hereby.
17. SATURDAYS, SUNDAYS AND LEGAL HOLIDAYS. If the time for performance of
any of the terms, conditions and provisions hereof shall fall on a Saturday,
Sunday or legal holiday, then the time of such performance shall be extended to
the next business day thereafter.
18. USAGE OF GENDER SPECIFIC TERMS. As used herein, each of the
masculine, feminine and neuter genders shall include the other genders, the
singular shall include the plural, and the plural shall include the singular,
wherever appropriate to the context.
19. ENTIRE AGREEMENT; AMENDMENT. This Agreement embodies the entire
agreement of the parties with respect to the transactions contemplated herein,
including the purchase and sale of Shares, and all prior understandings and
agreements of the parties relating thereto are merged herein. This Agreement
may not be modified in any manner whatsoever except by a written instrument
signed by the Selling Shareholders and the Purchaser.
20. WAIVER. No delay in exercising any right or remedy of any of the
parties hereunder shall constitute a waiver thereof, and no waiver by the
Selling Shareholders or Purchaser of the breach of any covenant of this
Agreement shall be construed as a waiver of any preceding or succeeding breach
of the same or any other covenant or condition of this Agreement.
21. HEADINGS. The headings in this Agreement are inserted for convenience
only and shall not constitute a part hereof.
22. SEVERABILITY. If any term, covenant or condition of this Agreement is
held to be invalid or unenforceable in any respect, such invalidity or
unenforceability shall not affect any other provision hereof and this Agreement
shall be construed as if such invalid or unenforceable provision has never been
contained herein.
23. PUBLIC ANNOUNCEMENTS. The parties shall mutually agree on the content
and timing of any public disclosure in relation to the transactions contemplated
hereby, subject to applicable requirements of law (including, but not limited
to, the filing of amended Schedule 13Ds).
24. EXECUTION. This Agreement may be executed in separate counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Any party may execute this Agreement by
transmitting a copy of its signature by facsimile to the other parties. In such
event the signing party shall deliver an original of the signature page to each
of the other parties within one business day of signing, and failure to so
deliver such originals shall result in the facsimile copy of that party's
signature being treated as an original.
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IN WITNESS WHEREOF, the undersigned parties have executed this Agreement as
of the date and year first above written.
SELLING
SHAREHOLDERS: GABRIEL CAPITAL, L.P.
By:
--------------------------------
Name: Jack N. Mayer
Title: Authorized Agent
Address: 450 Park Avenue
New York, New York 10022
Facsimile No.: (212) 838-9603
ARIEL FUND LIMITED
By: ARIEL MANAGEMENT CORP.
By:
---------------------------
Name: Jack N. Mayer
Title: Authorized Agent
Address: 450 Park Avenue
New York, New York 10022
Facsimile No.: (212) 838-9603
7
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ARIEL MANAGEMENT CORP.
By:
--------------------------------
Name: Jack N. Mayer
Title: Authorized Agent
Address: 450 Park Avenue
New York, New York 10022
Facsimile No.: (212) 838-9603
PURCHASER: RGI HOLDINGS, INC.
By:
--------------------------------
Name:
--------------------------
Its:
---------------------------
Address: 1420 Fifth Avenue
Suite 4200
Seattle, Washington 98101
Facsimile No.: (206) 448-0404
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SCHEDULE I
Banyan Mortgage Investment Fund
Common Stock
Holder Shares
------ ------
Gabriel Capital, L.P. 1,349,962
Ariel Fund Limited 1,991,103
Ariel Management Corp. 220,835
<PAGE>
EXHIBIT A
IRREVOCABLE PROXY
By its execution hereof, each of the undersigned hereby irrevocably
constitutes and appoints RGI Holdings, Inc., a Washington corporation ("RGI"),
as its true and lawful proxy and attorney-in-fact, with respect to the portion
of the 3,561,900 shares ( as appropriately adjusted as necessary to reflect a
stock split, stock dividend, merger, consolidation, reclassification,
recapitalization or other similar transaction, the "Shares") of common stock,
par value $.01 per share ("Common Stock"), of Banyan Mortgage Investment Fund, a
Delaware corporation (the "Company"), beneficially owned by it as of the date
hereof and identified on Schedule I hereto, to: (i) vote at any annual or
special meeting of the stockholders of the Company, to take any action,
including without limitation, adopting a proposed merger of RGI U.S. Holdings,
Inc. with and into the Company, amending the Company's certificate of
incorporation to reclassify, combine and convert each twenty-five issued and
outstanding shares of the Company's Common Stock into one issued and outstanding
share, to adopt an Amended and Restated Certificate of Incorporation of the
Company that, among other things, changes Banyan's name to "Legend Properties,
Inc.", and electing directors; (ii) to exercise written consent in lieu of
voting with respect to the matters set forth in the preceding clause (i); and
(iii) to execute, acknowledge, swear to and file in the name, place and stead of
the undersigned any proxy, consent, approval, or other documents to be executed
by the stockholders in connection with the items set forth in the preceding
clauses (i) and (ii). The proxy granted hereby is irrevocable and is given in
connection with the purchase by RGI of the Shares pursuant to a Common Stock
Purchase and Sale Agreement dated December 3, 1996 (the "Purchase Agreement"),
by and among RGI and Gabriel Capital, L.P., Ariel Fund Limited and Ariel
Management Corp.; PROVIDED, HOWEVER, that this Irrevocable Proxy shall
automatically terminate and be of no further force or effect with respect to any
Shares as of June 30, 1997.
IN WITNESS WHEREOF, each of the undersigned has executed this Irrevocable
Proxy as of the ____ day of December, 1996.
GABRIEL CAPITAL, L.P.
By:
--------------------------------
Name: Jack N. Mayer
Title: Authorized Agent
Address:
--------------------------
--------------------------
--------------------------
Facsimile No.:
--------------------
ARIEL FUND LIMITED
By: ARIEL MANAGEMENT CORP.
By:
---------------------------
Name: Jack N. Mayer
Title: Authorized Agent
Address:
--------------------------
--------------------------
--------------------------
Facsimile No.:
--------------------
ARIEL MANAGEMENT CORP.
By:
--------------------------------
Name: Jack N. Mayer
Title: Authorized Agent
Address:
--------------------------
--------------------------
--------------------------
Facsimile No.:
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