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