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EXHIBIT 2
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made as of the 3rd
day of January, 1997, between CalREIT Investors Limited Partnership, an Illinois
limited partnership ("Buyer") and The Peregrine Real Estate Trust, a California
business trust ("Seller").
W I T N E S S E T H
WHEREAS, Seller owns 6,959,593 common shares of beneficial interest
(the "Shares") of California Real Estate Investment Trust ("CalREIT");
WHEREAS, the Shares represent approximately seventy-six percent (76%)
of the outstanding common shares of beneficial interest of CalREIT;
WHEREAS, Buyer has experience in the real estate industry and in the
operation of REITs and has presented to Seller the Business Plan, which is
intended, among other things, to increase value for all shareholders of CalREIT
and which is contingent upon Buyer's purchase of the Shares; and
WHEREAS, Buyer desires to purchase from Seller, and Seller desires to
sell to Buyer, the Shares;
NOW, THEREFORE, in consideration of the premises and of their mutual
covenants and agreements set forth in this Agreement, Buyer and Seller hereby
agree as follows:
ARTICLE 1
Section 1.1 Certain Defined Terms. Capitalized terms not otherwise
defined in this Agreement shall have the meanings specified in Exhibit 1.1 to
this Agreement.
Section 1.2 Agreement to Sell and to Purchase. On the terms and subject
to the conditions of this Agreement, Seller hereby sells, conveys, assigns,
transfers and delivers to Buyer, and Buyer hereby purchases, acquires and
accepts from Seller, at the Closing, the Shares.
ARTICLE 2
PURCHASE PRICE AND PAYMENT
Section 2.1 Purchase Price. In consideration for the Shares, upon the
terms and subject to the conditions of this Agreement, Buyer shall pay to Seller
the Purchase Price. The "Purchase Price" shall consist of Twenty Million Two
Hundred Twenty-Two Thousand Eleven Dollars ($20,222,011) cash. Buyer shall pay
the Purchase Price at the Closing by wire transfer of immediately available
funds pursuant to written instructions of Seller attached as Exhibit 2.1 to this
Agreement.
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ARTICLE 3
CLOSING
Section 3.1 Closing Date. The closing of the transactions contemplated
by this Agreement (the "Closing") shall take place concurrent with the execution
of this Agreement (the "Closing Date") in the offices of Farella Braun & Martel
LLP, 235 Montgomery Street, 30th Floor, San Francisco, California 94104.
Section 3.2 Seller's Deliveries at Closing. At the Closing, Seller
shall deliver or cause to be delivered to Buyer the following:
(a) A stock certificate or certificates representing all of
the Shares, accompanied by a stock power or stock powers duly executed in blank
with signature guarantees or duly executed instruments of transfer;
(b) A certificate of the Secretary of Seller dated as of the
Closing Date certifying the resolutions of the Board of Trustees of Seller
authorizing and approving this Agreement and the transactions contemplated by
this Agreement;
(c) A receipt, executed by Seller, acknowledging receipt of
the Purchase Price;
(d) An opinion of counsel to Seller, Farella Braun & Martel
LLP, dated as of the Closing Date, reasonably satisfactory to Buyer, covering
the matters set forth on Exhibit 3.2(d) attached to this Agreement; and .
(e) The resignation of each trustee of CalREIT who is also a
trustee of Seller, executed in the form attached as Exhibit 3.2(e).
(f) The release of any pledge or security interest held by any
lender of Seller with respect to the Shares.
Section 3.3 Buyer's Deliveries at Closing. At the Closing, Buyer shall
deliver or cause to be delivered to Seller:
(a) The Purchase Price;
(b) A certificate of the General Partner of Buyer dated as of
the Closing Date certifying the resolutions of the Board of Directors of Buyer
authorizing and approving this Agreement and the transactions contemplated by
this Agreement;
(c) A receipt, executed by Buyer, acknowledging receipt of the
documents by which the Sellers sell, convey, assign, transfer and deliver the
Shares to Buyer; and
(d) An opinion of counsel to Buyer, Rosenberg & Liebentritt,
P.C., dated as of the Closing Date, reasonably satisfactory to Seller, covering
the matters set forth on Exhibit 3.3(d) attached to this Agreement.
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
Section 4.1 Trust Existence and Power. Seller is a business trust duly
organized, validly existing and in good standing under the laws of the State of
California. Seller has full power and authority to enter into this Agreement and
perform its obligations under this Agreement.
Section 4.2 Trust Authorization. Seller's execution, delivery and
performance of this Agreement and the consummation by Seller of the transactions
contemplated by this Agreement have been duly authorized by all requisite trust
action of Seller.
Section 4.3 Binding Effect and Authority. This Agreement has been duly
executed and delivered by Seller, and constitutes a valid and binding agreement
of Seller.
Section 4.4 Consents and Approvals; No Violation. Neither the execution
and delivery of this Agreement by Seller nor the consummation by Seller of the
transactions contemplated hereby will (a) conflict with or result in any breach
of any provision of Seller's Declaration of Trust or the bylaws of Seller, or
(b) require any filing with, or the obtaining of any permit, authorization,
consent or approval of, any court or governmental or regulatory authority, (c)
result in a default (or give rise to any right of termination, cancellation or
acceleration) under any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, license, agreement, lease or other instrument or
obligation to which Seller is a party or by which Seller may be bound, except
for defaults (or rights of termination, cancellation or acceleration) as to
which requisite waivers or consents have been obtained, or (d) violate any
order, writ, injunction, decree, statute, rule or regulation applicable to
Seller; provided, that the foregoing clauses (b), (c) and (d) shall not apply to
requirements, defaults or violations which would not have a material adverse
effect on the business, operations or financial condition of Seller.
Section 4.5 Title to Shares. At the Closing, Seller will convey the
Shares to Buyer free and clear of any and all Liens, except for restrictions on
transfer pursuant to federal or applicable state securities laws.
Section 4.6 Brokers' Fees. Except for the engagement of Dillon, Read,
whose fees are the responsibility of Seller, no investment banker, broker,
finder or other intermediary has been retained by or is authorized to act on
behalf of Seller who might be entitled to any fee or commission from Buyer or
any of its Affiliates upon consummation of the transactions contemplated by this
Agreement.
Section 4.7 No Distributions. Except for the distributions to Seller or
its Affiliates contemplated in Exhibit 4.7 attached to this Agreement, since
September 30, 1996, neither Seller nor any of its Affiliates has received any
cash distributions or other payments from CalREIT.
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ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
Section 5.1 Existence and Power. Buyer is a limited partnership duly
organized, validly existing and in good standing under the laws of the State of
Illinois, with full power and authority to enter into this Agreement and perform
its obligations under this Agreement.
Section 5.2 Authorization. Buyer's execution, delivery and performance
of this Agreement and the consummation by Buyer of the transactions contemplated
by this Agreement have been duly authorized by all requisite partnership action
of Buyer.
Section 5.3 Binding Effect. This Agreement has been duly executed and
delivered by Buyer, and constitutes a valid and binding agreement of Buyer.
Section 5.4 Consents and Approvals; No Violation. Neither the execution
and delivery of this Agreement by Buyer nor the consummation by Buyer of the
transactions contemplated hereby will (a) conflict with or result in any breach
of any provision of the [charter documents] of Buyer; (b) require any filing
with, or the obtaining of any permit, authorization, consent or approval of, any
court or governmental or regulatory authority; (c) to the best knowledge of
Buyer, result in a default (or give rise to any right of termination,
cancellation or acceleration) under any of the terms, conditions or provisions
of any note, bond, mortgage, indenture, license, agreement, lease or other
instrument or obligation to which Buyer is a party or by which Buyer or any of
its assets may be bound, except for defaults (or rights of termination,
cancellation or acceleration) as to which requisite waivers or consents have
been obtained; or (d) to the best knowledge of Buyer, violate any order, writ,
injunction, decree, statute, rule or regulation applicable to Buyer, or any of
its assets; provided, that the foregoing clauses (b), (c) and (d) shall not
apply to requirements, defaults or violations which would not have a material
adverse effect on the business, operations or financial condition of Buyer.
Section 5.5 Brokers' Fees. No investment banker, broker, finder or
other intermediary has been retained by or is authorized to act on behalf of
Buyer who might be entitled to any fee or commission from Seller or any of
Seller's Affiliates upon consummation of the transactions contemplated by this
Agreement.
Section 5.6 Investment. Buyer is acquiring the Shares for investment
for its own account and not with a view to selling, distributing or transferring
the Shares in violation of the registration requirements of the Act or
applicable state securities laws. Buyer understands that the Shares have not
been registered under the Securities Act by reason of a specific exemption from
the registration provisions of the Securities Act which depends upon, among
other things, the bona fide nature of the investment intent as expressed herein.
Section 5.7 Rule 144. Buyer acknowledges that, because they have not
been registered under the Securities Act, the Shares constitute "restricted
securities" under Rule 144 and must be held indefinitely unless subsequently
registered under the Securities Act or an exemption from such registration is
available. Buyer is aware of the provisions of Rule 144 promulgated under the
Securities Act which permits limited resale of shares purchased in a
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private placement subject to the satisfaction of certain conditions, including,
among other things, the existence of a public market for the shares, the
availability of certain current public information about CalREIT, the resale
occurring not less than two years after a party has purchased and paid for the
security to be sold, the sale being through a "broker's transaction" or in
transactions directly with a "market maker" (as provided by Rule 144(f)) and the
number of shares being sold during any three-month period not exceeding
specified limitations (unless the sale is within the requirements of Rule
144(k)).
Section 5.8 Investigation by Buyer. Buyer has conducted its own
independent investigation, review and analysis of the business assets, financial
condition, legal, litigation and REIT status and prospects of CalREIT ("Buyer's
Investigation"). Buyer acknowledges that it has had full access to all
documents, records, reports, tax returns, properties, personnel and other
information relating to CalREIT that it has requested for purposes of Buyer's
Investigation. In entering into this Agreement, Buyer has relied solely upon
Buyer's Investigation, and Buyer acknowledges (a) that none of Seller, or any of
its respective trustees, directors, officers, employees, agents,
representatives, attorneys, advisers or shareholders, makes any representation
or warranty, either express or implied, as to the accuracy or completeness of
any of the information provided or made available to Buyer or its agents or
representatives, and (b) to the fullest extent permitted by law, that none of
Seller, or any of its respective trustees, directors, officers, employees,
agents, representatives, attorneys, advisers or shareholders, shall have any
liability or responsibility to Buyer or any of its agents or representatives on
any basis (including, without limitation, in contract or tort, under federal or
state securities laws) based upon any information provided or made available, or
statements made, to Buyer or its agents or representatives, except for the
specific representations and warranties of Seller set forth in Article 4
(Representations and Warranties of Seller) of this Agreement and the opinion of
Seller's counsel covering the matters set forth in Exhibit 3.2(a).
Section 5.9 Transfer of Shares to Buyer. Neither the transfer of the
Shares to Buyer pursuant to the terms of this Agreement, nor the ownership of
the Shares by Buyer immediately following the Closing, will jeopardize the
qualification of CalREIT as a REIT.
Section 5.10 Buyer's Business Plan. Buyer has delivered to Seller a
true and complete copy of the Business Plan dated December 24, 1996 accompanied
by written indications of interest from institutional investors regarding an
investment pursuant to the Business Plan. Pursuant to the Business Plan, after
the Closing Date, Buyer proposes to recapitalize and reorganize CalREIT to
create a specialty finance company. Buyer (i) believes that the Business Plan
(including any amendment, modification or successor plan for a specialty finance
company adopted after the Closing Date by Buyer, Veqtor, CalREIT or their
Affiliates in their good faith business judgment) is achievable and intends to
carry out the Business Plan (as so amended, modified or succeeded) and (ii)
represents that the Business Plan (as so amended, modified or succeeded) is
intended, among other things, to increase the value of common shares of
beneficial interest for all CalREIT shareholders.
Section 5.11 Absence of Arrangements. Buyer represents that there are
no understandings, undertakings or arrangements, explicit or implicit, relating
to the transactions contemplated by this Agreement or otherwise, with any
current member of the Board of Trustees or management of CalREIT, under which
Buyer or any of its Affiliates would
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provide (or consent to or cause CalREIT to provide) any such member with salary,
commissions, fees, stock options or other compensation upon or following
consummation of the transactions contemplated by this Agreement. Buyer further
represents that Frank Morrow will not continue in his role as an officer and
director of CalREIT following the next succeeding shareholders' meeting, and
will not be engaged as an officer, director or consultant of CalREIT or its
Affiliates, after the date of such meeting.
ARTICLE 6
GENERAL
Section 6.1 Survival Beyond Closing. Notwithstanding any other
provision of this Agreement, the representations, warranties and covenants made
by Seller and Buyer in this Agreement, and the provisions of this Article 6,
shall survive the Closing.
Section 6.2 Binding Effect; Assignment. All of the terms of this
Agreement shall be binding upon, inure to the benefit of and be enforceable by
and against the successors and permitted assigns of Seller and Buyer. Neither
Seller nor Buyer shall assign any of their respective rights or obligations
under this Agreement to any other person, firm or corporation without the prior
written consent of the other party to this Agreement.
Section 6.3 Governing Law. This Agreement shall be governed by the laws
of the State of California applicable to contracts entered into and to be
performed in California.
Section 6.4 Notices. All notices, requests, demands and other
communications to be given pursuant to the terms of this Agreement shall be in
writing and shall be delivered personally, telecopied or sent by recognized
overnight delivery service, and shall be deemed given and effective when so
delivered personally, telecopied or received, as follows:
(a) If to Buyer:
CalREIT Investors Limited Partnership
c/o Equity Group Investments, Inc.
2 North Riverside Plaza, 6th Floor
Chicago, Illinois 60606
Attention: Gary R. Garrabrant
with a copy to:
Rosenberg & Liebentritt, P.C.
2 North Riverside Plaza, 15th Floor
Chicago, Illinois 60606
Attention: Alisa M. Singer
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(b) If to Seller:
The Peregrine Real Estate Trust
1300 Ethan Way, Suite 200
Sacramento, California 95825-1211
Telecopier: (916) 929-1122
Attention: Joseph M. Mock, President
with a copy to:
Farella Braun & Martel LLP
235 Montgomery Street, 30th Floor
San Francisco, California 94104
Telecopier: (415) 954-4480
Attention: Morgan P. Guenther, Esq.
Any party may change its address or telecopier number by prior written
notice to the other party.
Section 6.5 Counterparts. This Agreement may be executed by facsimile
and in counterparts, each of which when so executed shall be deemed to be an
original, and such counterparts shall together constitute one and the same
instrument.
Section 6.6 Expenses. Buyer and Seller shall pay their own respective
expenses, costs and fees (including, without limitation, attorney and
accountants' fees) incurred in connection with the negotiation, preparation,
execution and delivery of this Agreement and the consummation of the
transactions contemplated by this Agreement.
Section 6.7 Entire Agreement. This Agreement sets forth the entire
agreement and understanding of Seller and Buyer with respect to the transactions
contemplated by this Agreement, and supersedes all prior agreements,
arrangements and understandings relating to the subject matter of this
Agreement.
Section 6.8 Amendment and Waiver. This Agreement may be amended,
modified, superseded or canceled, and any of the terms, covenants,
representations, warranties or conditions of this Agreement may be waived, only
by a written instrument executed by Seller and Buyer or, in the case of a
waiver, by or on behalf of the party waiving compliance. The failure of any
party at any time to require performance of any provision of this Agreement
shall in no manner affect the right at a later time to enforce the same. No
waiver by any party of any condition or of any breach of any term, covenant,
representation or warranty contained in this Agreement, in any one or more
instances, shall be deemed to be or construed as a further or continuing waiver
of any such condition or of any breach of any such term, covenant,
representation or warranty or any other term, covenant, representation or
warranty set forth in this Agreement.
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Section 6.9 Headings. The headings of the sections and paragraphs of
this Agreement have been inserted for convenience of reference only and shall in
no way restrict or otherwise modify any of the terms or provisions of this
Agreement.
Section 6.10 Attorney's Fees. If any legal action or any arbitration or
other proceeding is brought for the enforcement of this Agreement or because of
any alleged dispute, breach, default, or misrepresentation in connection with
any of the provisions of this Agreement, the successful or prevailing party
shall be entitled to recover reasonable attorney's fees, witness fees, and other
costs incurred in such action or proceeding, in addition to any other relief to
which the party may be entitled.
Section 6.11 No Liability of Seller's Shareholders. Buyer acknowledges
that the shareholders of Seller are not personally liable for Seller's
obligations under this Agreement.
Section 6.12 No Third Party Beneficiaries. Nothing in this Agreement is
intended to confer upon any third party any rights or remedies under or by
reason of this Agreement, except as expressly set forth in this Agreement.
Section 6.13 Covenants Not-to-Sue
(a) Seller hereby covenants and agrees not to assert, directly
or indirectly, any claim, action, suit or proceeding of any nature
(collectively, "Claim") against CalREIT, Buyer or Buyer's agents, officers,
directors, shareholders, partners or Affiliates with respect to or arising out
of the matters which are the subject of the litigation entitled MDC REIT
Holdings LLC v. The Peregrine Real Estate Investment Trust, filed in San
Francisco County Superior Court as case no. 983525 (the "Litigation"). Buyer
hereby covenants and agrees not to assert, directly or indirectly, any Claim
against Seller or Seller's agents, officers, trustees, shareholders, partners or
Affiliates with respect to or arising out of the matters which are the subject
of the Litigation.
(b) As a material inducement to and in conjunction with the
foregoing covenants, Buyer represents and warrants to Seller that neither Buyer
nor its respective agents, officers, directors, shareholders, partners or
Affiliates received from Seller, or its agents, officers, trustees,
shareholders, partners or Affiliates, any confidential or proprietary
information of any sort related to MDC REIT Holdings LLC ("MDC REIT") including
but not limited to the business plan prepared by or on behalf of MDC REIT in
connection with its proposed purchase of the Shares.
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IN WITNESS WHEREOF, each of Seller and Buyer have executed this
Agreement as of the day and year first above written.
BUYER: CalREIT Investors Limited Partnership, an
Illinois limited partnership
By: /s/ Donald Liebentritt
---------------------------------
Name: Donald Liebentritt
---------------------------------
Title: Vice President
---------------------------------
Zell General Partnership, Inc.
---------------------------------
SELLER: The Peregrine Real Estate Trust, a California
business trust
By: /s/ Joseph M. Mock
---------------------------------
Name: Joseph M. Mock
---------------------------------
Title: President and CEO
---------------------------------
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EXHIBIT 1.1
Certain Defined Terms
"Act" means the Securities Act of 1933, as amended.
"Affiliate" means an entity controlling, controlled by or under common
control with, a party and any agent, representative, attorney, successor,
assign, employee, trustee, officer, director and shareholder of such party or
such entity.
"Agreement" has the meaning ascribed to it in the preamble to this
Agreement.
"Business Plan" means the business plan for CalREIT developed by Buyer
for implementation after the Closing Date, as summarized in the document dated
December 24, 1996 from Equity Group Investments, Inc. and Victor Capital Group,
L.P. entitled "Presentation to the Board of Directors of California Real Estate
Investment Trust and The Special Committee of The Peregrine Real Estate Trust."
"Buyer" has the meaning ascribed to it in the preamble to this
Agreement.
"Buyer's Investigation" has the meaning ascribed to it in Section 5.8
of this Agreement.
"CalREIT" has the meaning ascribed to it in the Recitals to this
Agreement.
"Closing" has the meaning ascribed to it in Section 3.1 of this
Agreement.
"Closing Date" has the meaning ascribed to it in Section 3.1 of this
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Liens" means any assignment, pledge, lien, security interest or other
charge or encumbrance or interest in or upon property or rights.
"Purchase Price" has the meaning ascribed to it in Section 2.1 of this
Agreement.
"REIT" means a "real estate investment trust" as defined in Section 856
of the Code.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Seller" has the meaning ascribed to it in the preamble to this
Agreement.
"Seller's Declaration of Trust" means the Restated Declaration of Trust
of Seller, dated as of October 7, 1994.
"Shares" has the meaning ascribed to it in the Recitals to this
Agreement.
"Veqtor" means Veqtor Investment Company, LLC, a limited liability
company proposed to be formed and capitalized by Equity Group Investments, Inc.
and Victor Capital Group, L.P.
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EXHIBIT 2.1 - Page 1 OF 3
Amounts to be wired upon closing of sale of Peregrine's CalREIT stock
to CalREIT Investors Limited Partnership
The Peregrine Real Estate Trust $ 4,591,478.93
Gateway Recovery Trust 1,331,721.34
The Prudential Insurance Co. of America 1,269,199.20
Gateway Recovery Trust 1,561,490.15
Pacific Mutual Life Ins. Co. 4,162,410.69
ORIX USA Corporation 623,658.23
Weyerhaeuser Co. Master Retirement Trust 601,775.48
TCW Special Credits Fund IV 1,938,185.98
TCW Special Credits Plus Fund 2,071,045.50
TCW Special Credits Trust IV 1,670,903.88
TCW Special Credits Trust IVA 400,141.62
---------------
Total $ 20,222,011.00
1/1/97
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EXHIBIT 2.1 - page 2 of 3
THE PEREGRINE REAL ESTATE TRUST
1300 ETHAN WAY, SUITE 200
SACRAMENTO, CA 95825-2211
FAX COVER SHEET
DATE: December 30, 1996 TIME: 10:29 p.m.
TO: Joe Paolucci, Esq. PHONE:
FAX: 312/454-0335
FROM: Joseph M. Mock PHONE: 916/929-8244
Ext. 11
FAX: 916/929-1122
RE: Wiring Instructions
CC: Michael Rochman, Esq.
NUMBER OF PAGES INCLUDING COVER SHEET: 1
MESSAGE
The account information for wiring funds into Peregrine's account is:
The Peregrine Real Estate Trust
Sumitomo Bank of California
1800 Arden Way, Sacramento, CA 95818
ABA # 121-002-04-2
Account # 02501-8820-70
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EXHIBIT 2.1 - page 3 of 3
Wiring Instruction for Peregrine's Senior Lenders
Recipient Account No. Financial Institution
--------- ----------- ---------------------
Gateway Recovery Trust 507-858220 Chase Manhattan Bank/NYC
(FKA: The Prudential A/C Name: Gateway Recovery Trust
Insurance Co. of America) Collection A/C
8.52% (ABA No: 021-000-021)
"Attn: Michael Morcom, Trustee"
450 West 33rd Street
"New York, NY 10001-2697"
The Prudential Insurance 890-0304-944 Bank of New York (BONY)
Co. of America "New York, NY "
8.12% (ABA No.: 021-000-018)
Gateway Recovery Trust 507-858220 Chase Manhattan Bank/NYC
(FKA: Pruco Life Insurance Co.) A/C Name: Gateway Recovery Trust
9.99% Collection A/C
(ABA No: 021-000-021)
"Attn: Michael Morcom, Trustee"
450 West 33rd Street
"New York, NY 10001-2697"
Pacific Mutual Life 900-9-002206 Chase NYC
Insurance Co. (ABA No. 021000021)
26.63% Sub A/C = 47363300
BNF = Funds Pending DNI/ABS
BNK = Chase Manhattan Bank/SSTO
Re: Peregrine Real Estate Trust
ORIX USA Corporation 0060890010 ORIX USA Corporation
3.99% "Sanwa Bank, Ltd."
(ABA No: 026009823)
Weyerhaeuser Company 400-0733 Sanwa Bank California
Mastered Retirement Trust Trust Operation Center
3.85% "Monterey Park, CA"
(ABA No.: 122-003-516)
A/C Name: TCW Weyerhaeuser Co.
TCW Special Credits 400-1127 Sanwa Bank California
Fund IV Trust Operation Center
12.40% "Monterey Park, CA"
(ABA No.: 122-003-516)
A/C Name: TCW
Special Credits Fund IV
TCW Special Credits 400-1130 Sanwa Bank California
Plus Fund Trust Operation Center
13.25% "Monterey Park, CA"
(ABA No.: 122-003-516)
A/C Name: TCW
Special Credits Plus Fund
TCW Special Credits 400-1131 Sanwa Bank California
Trust IV Trust Operation Center
10.69% "Monterey Park, CA"
(ABA No.: 122-003-516)
A/C Name: TCW
Special Credits Trust IV
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TCW Special Credits 400-1180 Sanwa Bank California
Trust IVA Trust Operation Center
2.56% "Monterey Park, CA"
(ABA No.: 122-003-516)
A/C Name: TCW
Special Credits Trust IVA
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EXHIBIT 3.2(d)
Matters to be Covered in Opinion of Seller's Counsel
The opinion referenced in Section 3.2 will cover the following matters, subject
to appropriate and customary qualifications:
1. Seller is a business trust, duly organized, validly existing and in
good standing under the laws of the State of California. Seller has
full power and authority to execute, deliver and perform its
obligations under the Agreement.
2. The Agreement has been duly authorized by all applicable trust action
and is enforceable against Seller in accordance with its terms.
3. Although Seller remains subject to the jurisdiction of the United
States Bankruptcy Court for the Eastern District of California (the
"Bankruptcy Court"), in the case captioned In re Commonwealth Equity
Trust, case no 93-26727-C-11, to counsel's knowledge no Bankruptcy
Court approval is required in connection with Seller's execution,
delivery and performance under the Agreement.
4. Neither the execution and delivery by Seller of the Agreement nor the
performance of all obligations of Seller thereunder to be performed as
of the date hereof, will violate the [listed] Organizational Documents
of Seller or will constitute a material default under, or material
violation or material breach of, the [listed] Material Agreements of
Seller.
5. To counsel's knowledge, upon Seller's receipt of the Purchase Price,
Buyer shall receive the Shares free and clear of any assignment,
chattel mortgage, pledge or other security interest or any mortgage,
deed of trust or other liens created by Seller.
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EXHIBIT 3.2(e)
Form of Resignation Letter
When Recorded, Return To:
Michael Rochman, Esq.
Farella Braun & Martel LLP
Russ Building, 30th Floor
235 Montgomery Street
San Francisco, CA 94104
- --------------------------------------------------------------------------------
Board of Trustees
California Real Estate Investment Trust
131 Steuart Street, Suite 200
San Francisco, CA 94105
Re: Resignation
I hereby resign my office as Trustee of the California Real Estate
Investment Trust ("CalREIT"), effective immediately. This resignation may be
"filed for record" by you or by me in the manner contemplated by Section 8.4 of
the CalREIT Declaration of Trust.
Sincerely,
---------------------------------
John McMahan
DATED: January ___, 1997
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CERTIFICATE OF ACKNOWLEDGMENT
State of _______________________________________________)
)
County of_______________________________________________)
On_____________________________before me,_____________________________________
personally appeared___________________________________________________________
[ ] personally known to me, OR [ ] proved to me on the basis of
satisfactory evidence to the
person(s) whose name(s) is/are
subscribed to the within instrument
and acknowledged to me that
he/she/they executed the same in
[box] his/her/their authorized
capacity(ies), and that by
his/her/their signature(s) on the
instrument the person(s), or the
entity upon behalf of which the
person(s) acted, executed the
instrument.
WITNESS my hand and official seal.
Signature_________________________
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EXHIBIT 3.3(d)
Matters to be Covered in Opinion of Buyer's Counsel
The opinion referenced in Section 5.5 will cover the following matters, subject
to appropriate and customary qualifications:
1. Buyer is a limited partnership, duly organized, validly existing and in
good standing under the laws of the State of Illinois. Buyer has full
power and authority to execute, deliver and perform its obligations
under the Agreement.
2. The Agreement has been duly authorized by all necessary partnership
action and is enforceable against Buyer in accordance with its terms.
3. Neither the execution and delivery by Buyer of the Agreement nor the
performance of all obligations of Buyer thereunder to be performed as of
the date hereof will violate the [listed] Organizational Documents of
Buyer or constitute a material default under, or material violation or
material breach of, the [listed] Material Agreements of Buyer.
4. Neither the transfer of the Shares to Buyer pursuant to the terms of the
Stock Purchase Agreement, nor the ownership of such Shares by Buyer
immediately after the Closing, will jeopardize the qualification of
CalREIT as a REIT.
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EXHIBIT 4.7 - Page 1 of 2
Cash Distributions or Other Payments from CalREIT to Seller or Its Affiliates
September '96 Overhead Allocation $ 45,778.73
October '96 Overhead Allocation 23,312.32
November '96 Overhead Allocation 9,289.45 (1)
December '96 Overhead Allocation (Estimated) 8,500.00 (1)
Towncenter Reimbursement for Butler Services Allocations 103.35
24% of Severance to F. Morrow ($212,500 Total) 51,000.00 (2)
Purchase of Laptop Computer used by F. Morrow 1,938.00 (1)
Reimbursement for 12/31/95 Audit Fees by C&L 17,000.00 (3)
-----------
Subtotal 156,921.85
Less Payments Received:
September '96 Overhead Check #502159 Dated 11/13/96 (45,778.73)
October '96 Overhead Check #502202 Dated 12/11/96 (23,312.32)
Towncenter Reimbursement Check #502235 Dated 12/20/96 (103.35)
-----------
Total Estimated Amount Due from CalREIT at 12/31/96 $ 87,727.45
===========
NOTES: CalREIT to reimburse Peregrine for any services performed after
12/31/96. Peregrine to reimburse CalREIT 24% of any refunds received
from the cancellation of the joint D&O Policy upon separation.
(1) Paid by CalREIT Check #502241 dtd. 1/3/97
(2) To be negotiated post closing
(3) To be paid by Coopers & Lybrand
2
20
EXHIBIT 4.7 - Page 2 of 2
January 3, 1997
Mr. Joseph Mock
Chief Executive Officer
Peregrine Real Estate Trust
1300 Ethan Way, #200
Sacramento, CA 95825
Dear Joe:
Enclosed is CalREIT's check in the amount of $19,727.45 per your discussion of
yesterday with Arnie Brown.
By this letter CalREIT agrees that the issue of reimbursement of Peregrine for
FAMA severance payments shall be resolved post closing.
Sincerely,
/s/ Frank A. Morrow
Frank A. Morrow
3