EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "MERGER AGREEMENT"), dated as
of September 26, 2000, is entered into by and between The Peregrine Real
Estate Trust, a California real estate investment trust ("PEREGRINE"),
WinShip Properties, a California real estate investment trust ("WINSHIP"),
TCW Special Credits Fund IV, TCW Special Credit Plus Fund, TCW Special
Credits Trust IV, TCW Special Credits Trust IVA, TCW Special Credits, as
investment manager of the Weyerhaeuser Company Master Retirement Trust
Separate Account, OCM Real Estate Opportunities Fund A, L.P., OCM Real Estate
Opportunities Fund B, L.P. and Oaktree Capital Management, LLC as investment
manager of Gryphon Domestic VII, LLC Separate Account (collectively, the
"OAKTREE ENTITIES").
RECITALS
1. Peregrine is a California real estate trust organized pursuant to
the Restated Declaration of Trust of Peregrine, dated as of October 7, 1994, as
amended from time to time ("DECLARATION OF TRUST").
2. WinShip is a California real estate trust organized pursuant to
the Declaration of Trust of WinShip, dated as of September 22, 2000.
3. At the time of the consummation of the Merger, WinShip will own
20,231,900 Common Shares of Peregrine (the "WINSHIP PEREGRINE SHARES").
4. The Trustees of Peregrine and WinShip have determined that it is
advisable and in the best interests of their respective entity and its
equityholders that the Peregrine merge with and into WinShip (the "MERGER").
TERMS AND PROVISIONS OF MERGER
In consideration of the foregoing Recitals and of the following terms and
provisions, and subject to the following conditions, it is agreed:
1. MERGER. The effective time of the Merger (the "EFFECTIVE TIME")
shall be a date to be agreed upon by the parties hereto, which date shall be not
more than five (5) business days following receipt of all necessary third party
consents and approvals, including, without limitation, all required shareholder
approvals and all required filings required pursuant to applicable state and
federal securities laws. As of the Effective Time, Peregrine shall be merged
with and into WinShip. Following the Effective Time, WinShip shall be the
surviving entity of the Merger (hereinafter sometimes referred to as the
"SURVIVING ENTITY"), and the separate organizational existence of Peregrine
shall cease.
2. GOVERNING DOCUMENTS. The Declaration of Trust of WinShip, as it may
be amended or restated subject to applicable law, and as in effect immediately
prior to the Effective Time, shall constitute the Declaration of Trust of the
Surviving Entity without further change or amendment until thereafter amended in
accordance with the provisions thereof and applicable law.
3. TRUSTEES. The persons who are trustees of WinShip immediately prior
to the Effective Time shall, after the Effective Time, be the trustees of the
Surviving Entity, without change until their successors have been duly elected
or appointed and qualified or until their death, disability, resignation or
removal in accordance with the Declaration of Trust of the Surviving Entity and
applicable law.
4. NAME. The name of the Surviving Entity shall continue to be WinShip
Properties.
5. SUCCESSION. At the Effective Time, the Surviving Entity shall
acquire and possess all the rights, privileges, powers and franchises of a
public or private nature and be subject to all the restrictions, disabilities
and duties of Peregrine; and all property, real, personal and mixed, and all
debts due to Peregrine on whatever account, including all other things and
causes of action, shall be vested in the Surviving Entity; and all property,
rights, privileges, powers and franchises, and all and every other interest
shall be thereafter as effectually the property of the Surviving Entity as they
were of Peregrine, and the title to any real property vested by deed or
otherwise shall not revert or be in any way impaired by reason of the Merger;
but all rights of creditors and liens upon any property of Peregrine shall be
preserved unimpaired, and all debts, liabilities and duties of Peregrine shall
thenceforth attach to the Surviving Entity and may be enforced against the
Surviving Entity to the same extent as if such debts, liabilities and duties had
been incurred or contracted by the Surviving Entity; PROVIDED, HOWEVER, that
such liens upon property of Peregrine shall be limited to the property affected
thereby immediately prior to the Merger.
6. FURTHER ASSURANCES. From time to time, as and when required or
requested by the Surviving Entity or by its successors and assigns, there shall
be executed and delivered on behalf of Peregrine such deeds, assignments and
other instruments, and there shall be taken or caused to be taken by it all such
further and other action, as shall be appropriate or necessary in order to vest,
perfect or confirm, of record or otherwise, in the Surviving Entity the title to
and possession of all property, interests, assets, rights, privileges,
immunities, powers, franchises and authority of Peregrine and otherwise to carry
out the purposes of this Merger Agreement, and the Trustees and authorized
officers of the Surviving Entity are fully authorized in the name and on behalf
of Peregrine or otherwise, to take any and all such action and to execute and
deliver any and all such deeds, assignments and other instruments.
7. CONVERSION OF CAPITAL STOCK. Each issued and outstanding Common
Share of Peregrine (other than the WinShip Peregrine Shares) shall be
automatically converted into the right to receive $0.59 in cash per share (the
"MERGER PRICE").
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8. EXCHANGE OF CERTIFICATES.
(a) EXCHANGE PROCEDURES. As soon as reasonably practicable after
the Effective Time, the Surviving Entity shall mail to each holder of record of
a certificate or certificates which immediately prior to the Effective Time
represented outstanding Common Shares of Peregrine (the "CERTIFICATES") whose
shares are converted pursuant to SECTION 7 into the right to receive the Merger
Price (i) a letter of transmittal (which shall specify that delivery shall be
effected, and risk of loss and title to the Certificates shall pass, only upon
delivery of the Certificates to the Surviving Entity and shall be in such form
and have such other provisions as the Surviving Entity may reasonably specify)
and (ii) instructions for use in effecting the surrender of the Certificates in
exchange for the Merger Price. Upon surrender of a Certificate for cancellation
to the Surviving Entity, together with such letter of transmittal duly executed
and completed in accordance with its terms, the holder of such Certificate shall
be entitled to receive in exchange therefor a check representing the Merger
Price per Common Share of Peregrine represented thereby, which such holder has
the right to receive pursuant to the provisions of SECTION 7, and the
Certificate so surrendered shall forthwith be canceled. In no event shall the
holder of any Certificate be entitled to receive interest on any funds to be
received in the Merger. In the event of a transfer of ownership of Common Shares
of Peregrine which is not registered in the transfer records of Peregrine, the
Merger Price may be issued to a transferee if the Certificate representing such
Common Shares of Peregrine is presented to the Surviving Entity accompanied by
all documents required to evidence and effect such transfer and by evidence that
any applicable stock transfer taxes have been paid. Until surrendered as
contemplated by this SECTION 8, each Certificate shall be deemed at any time
after the Effective Time to represent only the right to receive upon such
surrender the Merger Price per Common Share represented thereby as contemplated
by SECTION 7 and this SECTION 8.
(b) NO FURTHER OWNERSHIP RIGHTS IN COMMON SHARES OF PEREGRINE. All
cash paid upon the surrender for exchange of Certificates in accordance with the
terms hereof shall be deemed to have been paid in full satisfaction of all
rights pertaining to the Common Shares of Peregrine represented thereby. From
and after the Effective Time, the stock transfer books of Peregrine shall be
closed and there shall be no further registration of transfers on the stock
transfer books of the Surviving Entity of the shares of Common Shares of
Peregrine which were outstanding immediately prior to the Effective Time. If,
after the Effective Time, Certificates are presented to the Surviving Entity for
any reason, they shall be canceled and exchanged as provided in this SECTION 8.
(c) WITHHOLDING RIGHTS. The Surviving Entity shall be entitled to
deduct and withhold from the consideration otherwise payable pursuant to this
Merger Agreement to any holder of Common Shares of Peregrine such amounts as the
Surviving Entity is required to deduct and withhold with respect to the making
of such payment under the Internal Revenue Code of 1986, as amended (the
"CODE"), or any provision of state, local or foreign tax law. To the extent that
amounts are so withheld by the Surviving Entity, such withheld amounts shall be
treated for all purposes of this Merger Agreement as having been paid to the
holder of the Common Shares of Peregrine in respect of which such deduction and
withholding was made by the Surviving Entity.
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9. EMPLOYEE BENEFIT PLANS. As of the Effective Time, the Surviving
Entity shall assume all obligations of Peregrine under any and all employee
benefit plans in effect as of the Effective Time or with respect to which
employee rights or accrued benefits are outstanding as of the Effective Time
including without limitation the obligations of Peregrine pursuant to its 1998
Long Term Incentive Plan, but excluding the obligations of Peregrine under its
Trustee Stock Option Plan which shall be terminated pursuant to the terms
thereof as a result of the Merger.
10. ACCOUNTING MATTERS. WinShip agrees that upon the Effective Time, the
assets, liabilities, reserves and accounts of Peregrine shall be taken up or
continued on the books of WinShip in the amounts at which such assets,
liabilities, reserves and accounts shall have been carried on the books of
Peregrine immediately prior to the Effective Time, subject to such adjustments
as may be appropriate to give effect to the Merger.
11. CONVERSION OF NOTES. The Oaktree Entities hereby agree to convert
the Senior Secured Notes due 2001 held by the Oaktree Entities into equity of
the Surviving Entity immediately after the consummation of the Merger pursuant
to the terms of the Shareholders Agreement dated May 26, 2000 between The
Prudential Insurance Company of America, Gateway Recovery Trust and the Oaktree
Entities.
12. REPRESENTATIONS OF WINSHIP. WinShip hereby represents and warrants
that, as of the date hereof, it is not aware of any facts relating to the assets
and operations of Peregrine that have not been disclosed to Peregrine, or of
which Peregrine does not otherwise have knowledge, that could be reasonably
expected to materially positively affect the value of the Common Shares of
Peregrine.
13. GOVERNING LAW. This Merger Agreement shall be governed by and
construed in accordance with the laws of the State of California applicable to
contracts entered into and to be performed wholly within the State of
California.
14. AMENDMENT. Subject to applicable law, this Merger Agreement may be
amended, modified or supplemented by written agreement of the parties hereto at
any time prior to the Effective Time with respect to any of the terms contained
herein.
15. DEFERRAL OR ABANDONMENT. At any time prior to the Effective Time,
this Merger Agreement may be terminated and the Merger may be abandoned or the
time of consummation of the Merger may be deferred for a reasonable time by the
Trustees of Peregrine or of WinShip, or any combination or all of them, if
circumstances arise which, in the opinion of such Trustees, make the Merger
inadvisable or such deferral of the time of consummation advisable.
16. COUNTERPARTS. This Merger Agreement may be executed in any number of
counterparts each of which when taken alone shall constitute an original
instrument and when taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of this Merger Agreement by facsimile
transmission shall be effective as delivery of a manually executed counterpart
hereof.
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17. ASSURANCE. Peregrine and WinShip agree to execute any and all
documents, and to perform such other acts, which may be necessary or expedient
to further the purposes of this Merger Agreement.
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IN WITNESS WHEREOF, Peregrine and WinShip have caused this Merger
Agreement to be signed by their respective duly authorized officers and
delivered this 26th day of September, 2000.
THE PEREGRINE REAL ESTATE TRUST, a
California real estate investment trust
By: /s/ Roger D. Snell
------------------------------------
Name: Roger D. Snell
Title: President and CEO
WINSHIP PROPERTIES, a California real estate
investment trust
By: /s/ Richard Masson
------------------------------------
Name: Richard Masson
Title: President
TCW SPECIAL CREDITS FUND IV
By: TCW Special Credits
Its: General Partner
By: TCW Asset Management Company
Its: Managing General Partner
By: /s/ Richard Masson
-------------------------------
Name: Richard Masson
Title: Authorized Signatory
By: /s/ Kenneth Liang
--------------------------------
Name: Kenneth Liang
Title: Authorized Signatory
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TCW SPECIAL CREDITS PLUS FUND
By: TCW Special Credits
Its: General Partner
By: TCW Asset Management Company
Its: Managing General Partner
By: /s/ Richard Masson
--------------------------------------
Name: Richard Masson
Title: Authorized Signatory
By: /s/ Kenneth Liang
--------------------------------------
Name: Kenneth Liang
Title: Authorized Signatory
TCW SPECIAL CREDITS TRUST IV
By: Trust Company of the West, Trustee
By: /s/ Richard Masson
--------------------------------------
Name: Richard Masson
Title: Authorized Signatory
By: /s/ Kenneth Liang
--------------------------------------
Name: Kenneth Liang
Title: Authorized Signatory
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TCW SPECIAL CREDITS TRUST IVA
By: Trust Company of the West, Trustee
By: /s/ Richard Masson
--------------------------------------
Name: Richard Masson
Title: Authorized Signatory
By: /s/ Kenneth Liang
--------------------------------------
Name: Kenneth Liang
Title: Authorized Signatory
OCM REAL ESTATE OPPORTUNITIES FUND A,
L.P.
By: Oaktree Capital Management, LLC
Its: General Partner
By: /s/ Richard Masson
--------------------------------------
Name: Richard Masson
Title: Principal
By: /s/ Kenneth Liang
--------------------------------------
Name: Kenneth Liang
Title: Managing Director & General
Counsel
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OCM REAL ESTATE OPPORTUNITIES FUND B,
L.P.
By: Oaktree Capital Management, LLC
Its: General Partner
By: /s/ Richard Masson
--------------------------------------
Name: Richard Masson
Title: Principal
By: /s/ Kenneth Liang
--------------------------------------
Name: Kenneth Liang
Title: Managing Director & General
Counsel
GRYPHON DOMESTIC VII, LLC SEPARATE ACCOUNT
By: Oaktree Capital Management, LLC
Its: Investment Manager
By: /s/ Richard Masson
--------------------------------------
Name: Richard Masson
Title: Principal
By: /s/ Kenneth Liang
--------------------------------------
Name: Kenneth Liang
Title: Managing Director & General
Counsel
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WEYERHAEUSER COMPANY MASTER RETIREMENT TRUST
By: TCW Special Credits
Its: Investment Manager
By: TCW Asset Management Company
Its: Managing General Partner
By: /s/ Richard Masson
--------------------------------------
Name: Richard Masson
Title: Authorized Signatory
By: /s/ Kenneth Liang
--------------------------------------
Name: Kenneth Liang
Title: Authorized Signatory
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