AGREEMENT AND PLAN OF MERGER
AGREEMENT
AND PLAN OF MERGER
This
Agreement and Plan of Merger,
dated as of October 22, 2007, is entered into and adopted by and between Regency
North Associates, L.P., a Missouri limited partnership (hereinafter “the
Partnership”) and Regency North Acquisition, LLC, a Missouri limited liability
company (hereinafter “the Company”).
WHEREAS,
the
Partnership is duly organized as an existing limited partnership under the
laws
of the state of Missouri. KelCor, Inc., a Missouri corporation, is
the sole general partner of the Partnership; and
WHEREAS,
the
Partnership is engaged in the ownership and operation of The Regency North
Apartments in Kansas City, Missouri; and
WHEREAS,
the Company
is duly organized as an existing limited liability company under the laws of
the
state of Missouri. Maxus Operating Limited Partnership (“MOLP”), a
Delaware limited partnership is the sole member of the Company. Maxus
Realty Trust, Inc. (the “REIT”), a Missouri corporation, is the majority owner
of MOLP; and
WHEREAS,
the
Partnership desires to merge into the Company in order to provide liquidity
to
limited partners of the Partnership with the Partnership’s existence being
canceled by the merger.
NOW
THEREFORE, in
consideration of the mutual representations, covenants and conditions contained
herein, the parties agree as follows:
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I.
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Merger
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Subject
to the terms and conditions in this Agreement and Plan of Merger, on the
effective date as hereinafter provided, and pursuant to MO. Rev. Stat. Sec.
347.700 to 347.735, the Partnership shall be merged in, with and into the
Company and the Company shall be the surviving entity.
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II. Terms
and Conditions of Merger
The
terms
and conditions of the merger, the mode of carrying the merger into effect,
and
the manner and basis of converting partnership interests of the Partnership
into
Operating Units of MOLP is as follows:
A. Vote. The
Agreement and Plan of Merger has been approved by the general partner and by
more than 50% of the Total Outstanding Partnership Units. The
approval of the Board of Trustees of the REIT and the General Partner of MOLP
was obtained on October 15, 2007. Articles of Merger shall be filed
with the Secretary of State of Missouri.
B. Effective
date. The merger shall become effective on the date said Articles of
Merger shall be so filed with the Secretary of State of Missouri; provided,
however, the merger is subject to the lender’s consent to the Company’s
assumption of the Partnership’s $5,250,000 mortgage loan secured by The Regency
North Apartments and shall not be deemed effective until the Company obtains’
the lender’s written consent to such assumption.
C. Manner
of Conversion.
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1.
The partners of the Partnership will receive either cash or upon
election
and qualification, Operating Units in MOLP, based on the percentage
interest of such partners in the
Partnership.
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2. The
merger consideration equals $6,178,348.
Each
Limited Partner of the Partnership will receive
either
$1,500 or 100 Operating Units of MOLP for
each
Partnership Unit owned (2.9687%) based on
his/her
Partnership percentage interest. For example,
each
limited partner in the Partnership will receive
consideration
(either in cash or Operating Units of
MOLP)
equal to $1,500 per Partnership Unit owned (2.9687%).
3. Limited
partners in the Partnership have the option
of
receiving Operating Units in MOLP
redeemable into
shares
of stock in the REIT. Such
limited partners must
complete
a Subscription Agreement and
be accepted by
MOLP. In
the event of such
election and acceptance, the
limited
partners will receive
Operating Units in MOLP,
under
the terms of the MOLP
Partnership Agreement,
based
upon a $15 per share value of
REIT stock. For
example,
each electing limited partner
owning one unit (2.9687%)
in
the Partnership would receive 100
Operating Units in MOLP.
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D.
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Limited
Partner Liability. No limited partner of either the Partnership
or
MOLP
will, as a result of the merger, become personally liable for the
liabilities
or
obligations of either partnership.
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E.
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Cancellation. The
Partnership shall, upon completion of
the
merger, file with the Secretary of State of Missouri such
documents
as necessary to comply with applicable law.
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F.
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Operations. Upon
the effective date of the merger, the
assets,
properties, rights, privileges, immunities, debts,
liabilities,
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obligations
and all other interests of the Partnership shall be
deemed
to be transferred to and vested in the Company.
Specifically,
the assets and other property of the Partnership and
the
liabilities and obligations of the Partnership shall transfer to
the
Company
without further action by either party. The Company
accepts
such transfers and assumes such
obligations.
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Assignment. All
the rights and interest of the Partnership
under
all material contracts, leases, licenses and choses in action
are
assigned to the Company.
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H.
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Status. The
Company is formed for the purpose of
effecting
the merger and operating the apartment complex.
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I. General.
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1.
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Counterparts. For
the convenience of the
parties
and to facilitate the filing and recording of
this
Agreement and Plan of Merger, if required, any
number
of counterparts hereof maybe executed, and
each
such counterpart shall be deemed an original
instrument.
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2.
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Governing
Law. This agreement shall in all
respect
be governed by and construed in accordance
with
the laws of the State of Missouri.
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3.
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Amendment. The
parties, by mutual consent
of
all parties, may amend, modify and supplement
this
Agreement and Plan of Merger in such manner
as
may be agreed upon in writing.
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IN
WITNESS WHEREOF,
the undersigned being the general partner of Partnership and the sole member
of
the Company have caused this instrument to be executed as of the day and year
first above written.
REGENCY
NORTH ACQUISITION,
LLC
a
Missouri limited liability
company
By: Maxus
Operating Limited Partnership,
a
Delaware limited partnership, its
sole
member
By: Maxus
Realty GP, Inc.,
a
Delaware corporation, its
General Partner
By: /s/
Xxxx X. Xxxxx
Xxxx
X. Xxxxx, Vice
President
REGENCY
NORTH ASSOCIATES,
L.P.
a
Missouri Limited
Partnership
By:
KelCor, Inc.
General
Partner
By:
/s/ Xxxx X. Xxxxx
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Xxxx
X. Xxxxx, Vice President
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STATE
OF
MISSOURI )
)ss.
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COUNTY
OF CLAY
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I,
Xxxxx
X.
Xxxxx
, a Notary Public do hereby certify that
on
the 22nd day of,
October
, 2007, personally appeared before me Xxxx X.
Xxxxx
who
being by me first duly sworn, declared that he is the Vice President of KelCor,
Inc.
the
General Partner of Regency North Associates, L.P., a Missouri limited
partnership and that
he
signed
the foregoing document as Vice President of the corporation on behalf of
the
Partnership
and that the statements therein contained are true.
/s/
Xxxxx X. Xxxxx
NOTARY
PUBLIC
My
Commission Expires: August 24, 2010
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(Seal)
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XXXXX
X. XXXXX
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Notary
Public – Notary Seal
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STATE
OF MISSOURI
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Clay
County
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My
Commission Expires Aug. 24. 2010
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Commission
#06429203
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6
STATE
OF
MISSOURI )
)ss.
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COUNTY
OF CLAY
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)
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I,
Xxxxx
X.
Xxxxx
, a Notary Public do hereby certify that
on
the ___22nd day of _October , 2007,
personally appeared before me Xxxx X.
Xxxxx
who
being by me first duly sworn, declared that he is the Vice President of Maxus
Realty
G.P.,
Inc. the General Partner of Maxus Operating Limited Partnership., a Delaware
limited
partnership,
the sole member of Regency North Acquisition, LLC, a Missouri limited
liability
company
and that he signed the foregoing document as Vice President of the corporation
on
behalf
of
the Company and that the statements therein contained are true.
/s/
Xxxxx X. Xxxxx
NOTARY
PUBLIC
My
Commission Expires: August 24, 2010
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(Seal)
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XXXXX
X. XXXXX
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Notary
Public – Notary Seal
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STATE
OF MISSOURI
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Clay
County
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My
Commission Expires Aug. 24. 2010
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Commission
#06429203
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